J. S15043/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

YUWSHA ALWAN, : No. 1492 EDA 2017

:

 Appellant :

Appeal from the PCRA Order, March 30, 2017,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0012299-2011

BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 01, 2018

Yuwsha Alwan appeals from the March 30, 2017 order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-9546. After careful review, we affirm.

A prior panel of this court on direct appeal set forth the relevant facts of 

this case as follows:

On March 31, 2008, Nicholas Pisano was 

shot in his apartment at 356 N. Front 

Street in Philadelphia. Emergency 

personnel took him to Hahnemann 

University Hospital, where he died on that 

same day. He was twenty-five years old 

at the time of his death.

Philadelphia Police Officer Quinten White 

was the first police officer to arrive at the 

scene of the shooting, where he observed 

a small quantity of marijuana on a living 

room table and a [MAC-10] automatic 
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weapon in the bedroom, on the bed, 

partially covered by a sheet. [Officer 

White] spoke to Joshua McDonald, who 

was in the apartment at the time of the 

shooting, and who told him that two 

[b]lack men in their [thirties] wearing 

dark clothing came to the door purporting 

to be making a pizza delivery, and that 

the men shot Pisano and then fled the 

scene. As Officer White was pulling up to 

the scene, he inadvertently drove over a 

pizza box.

* * *

[McDonald] came to visit Pisano in the 

afternoon on the day of the shooting. He 

and Pisano watched a movie and played 

video games together. While the movie 

was playing, an African-American man 

with what McDonald described as a 

“Muslim-sounding name” came to the 

door and spoke with Pisano for about five 

minutes. Pisano briefly introduced him to 

McDonald, but McDonald [could] not recall 

his name or identify him.

Later that night, McDonald heard a knock 

on the door and a male voice saying “pizza 

delivery.” Pisano replied “we already got 

our food[,]” as the two men had ordered 

delivery earlier. The voice said[,] “well, 

just open the door.” Pisano said[,] “[i]t 

must be around back. It happens all the 

time.” Again, the voice said “just open 

the door.”

McDonald did not feel comfortable with 

the interaction, which did not feel “right” 

to him, so he retrieved the gun that 

Pisano had shown him earlier in the 

evening, which was hidden in the couch 

where he was sitting. As [McDonald] 

reached down for the gun, he heard a 
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shot. When he looked up, Pisano had 

fallen. He saw someone coming through 

the doorway and he pointed the gun 

toward them and tried to shoot. When he 

pulled the trigger, nothing happened, but 

the intruder ran. He saw a second man, 

but did not get a good look at him. He 

gave a statement to [h]omicide detectives 

a few hours after the shooting, in which 

he identified the shooter as [Joseph] 

Harville.[1]

[

1] Harville is [appellant’s] 

nephew.

Trial Court Opinion (“T.C.O.”), 11/13/2013, at 2–5 

(citations to notes of testimony omitted).

Homicide detectives found approximately seven 

pounds of marijuana in Pisano’s apartment, which 

they estimated to have a street value of $31,728. 

They also obtained surveillance video from a security 

camera located outside of Pisano’s apartment 

building. Clyde Frazier, an officer with the

Philadelphia Police Department’s Crime Scene Unit, 

recovered fingerprints from the pizza box found 

outside of Pisano’s apartment and matched those 

prints to Robert Gray, Harville’s life-long friend. At 

the time of the shooting, Gray had known [appellant]

through Harville for approximately three or four years.

After finding out that his fingerprints had 

been identified on the pizza box and [that] 

the police had video footage of him with 

Harville outside of Pisano’s [apartment] 

building on the night of the shooting, Gray 

gave a full confession to his involvement 

in the shooting. The surveillance video 

depicts Gray and Harville walking back 

and forth outside of [Pisano’s] building, 

[with] Gray holding a pizza box and 

Harville with his hands in his pockets.
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In his statement of April 4, 2008, [Gray] 

said the following about what happened 

four days earlier on the night of the 

shooting:

[W]e just hung out for a little 

while, that’s when [appellant] 

starts talking about this dude 

that had all this weed. He said 

he just left the boy’s house and 

the guy had like ten pounds of 

weed in the dryer and some on 

his countertop. He said the boy 

had a lot of money in a Nike box 

under the table in the back room 

where the dog was. [Appellant] 

was like ‘we should roll on the 

boy.’ He said the guy was a punk 

and that we wouldn’t have to do 

nothing but scare the boy. We 

all agreed and then [appellant] 

gave [Harville] the gun.

[Gray explained that,] after ordering a 

pizza and driving to pick it up, the three 

defendants proceeded as follows:

I parked the car under the bridge

around the corner from the boy’s 

house, then me and [Harville] 

and [appellant] walked around to 

the house. [Appellant] walked a 

little bit behind us and showed us 

where the house was at. Then 

he stayed back while me and 

[Harville] went to the dude’s 

house. I walked up the steps 

first and [Harville] was behind 

me. I still had the pizza with me. 

And when [Harville] rang the 

doorbell, he says ‘[d]elivery.’ 

The guy inside opens the door 

and says ‘wrong bell. You want 

the back.’ He had a Bible in his 
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hands and said like two more 

times ‘you want the back.’ He’s 

like, ‘I'm telling you, you got the 

wrong apartment. It happens all 

the time. You want the back 

door.’ I said, ‘no I want some 

weed.’ He was like, ‘you 

definitely got the wrong house.’

That’s when [Harville] come up 

behind and he pushes past me. 

He knocked the pizza out of my 

hand when [he] pushed me. As 

[Harville] pushed past me, the 

guy must have seen the gun 

because he looked shocked. 

That’s when I noticed [there] 

was another guy inside on the 

couch . . . . The guy on the 

couch grabs a gun from under a 

pillow. [He s]tood up pointing at 

us. At that point I ducked and 

started to run. That’s when 

[Harville] shot. I was already 

down the steps by the time 

[Harville] shot then I was gone. 

I ran to the car and [appellant] 

was already in the driver’s seat. 

I got in the backseat and 

[Harville] came up behind me 

and got into the front passenger 

seat. He still had the gun in his 

hand. Then we just took off.

Id. at 3–4.

William Shute, a special agent with the Federal Bureau 

of Investigation [(hereinafter, “Special Agent 

Shute”)], analyzed [appellant’s] cellular phone 

records from March 31, 2008 through April 10, 2008. 

Special Agent Shute’s analysis revealed that 

[appellant] and Gray had exchanged seventy-five 

calls during that period. Twenty-nine of those calls 

took place on the day of the shooting and twenty-
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three of them occurred on the following day. 

[Appellant] also made an outgoing call at 9:33 p.m. 

on March 31, 2008; approximately two minutes before 

Pisano was murdered. Based upon the location of the 

cellular tower that [appellant’s] phone used to place 

that call, Special Agent Shute determined that it was 

made within several blocks of the shooting.

Commonwealth v. Alwan, 113 A.3d 353 (Pa.Super. 2014) (unpublished 

memorandum at *1-2), appeal denied, 126 A.3d 1281 (Pa. 2015). 

The PCRA court, in turn, summarized the relevant procedural history of 

this case as follows:

On August 30, 2011, [appellant] was arrested and

charged with Murder and related firearms offenses. 

On August 16 2013, before this Court, a jury convicted

[appellant] of Second-Degree Murder, Conspiracy, 

and Robbery.[

1] This Court immediately imposed a 

mandatory life sentence of imprisonment as to 

Second-Degree Murder, and a concurrent term of ten 

to twenty years of imprisonment as to Conspiracy.[

2]

On November 19, 2014, Superior Court affirmed 

[appellant’s] judgment of sentence. [See id.] On 

October 22, 2015, the Pennsylvania Supreme Court 

denied his Petition for Allowance of Appeal. [Id.] On 

June 2, 2016, [appellant] filed a timely pro se [PCRA] 

petition. On July 18, 2016, [appellant] amended his 

pro se petition. On November 3, 2016, through 

retained counsel[

3], [appellant] filed the instant 

Amended Petition. On January 10, 2017, the 

Commonwealth filed its response. On January 31, 

2017, [appellant] supplemented his Amended 

 

1 18 Pa.C.S.A. §§ 2502(b), 903, and 3701(a)(1), respectively.

2 Appellant was represented during his jury trial by Robert M. Gamburg, Esq.

(“trial counsel”).

3 Appellant was initially represented during his PCRA proceedings by 

David Cornish, Esq. (“PCRA counsel”).
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Petition. On February 21, 2017, this Court, finding 

[appellant’s] claims meritless, filed a Notice of Intent 

to Dismiss under Pa.R.Crim.P. 907. On March 3, 

2017, [appellant] filed a pro se response.

PCRA court opinion, 3/30/17 at 1-2 (footnotes omitted). 

As noted, on March 30, 2017, the PCRA court dismissed appellant’s 

petition without a hearing. While still represented by PCRA counsel, appellant 

filed additional pro se PCRA petitions on April 3 and 10, 2017. The PCRA 

court subsequently dismissed these petitions on April 12, 2017. On April 20, 

2017, PCRA counsel filed a no-merit letter and petition to withdraw in 

accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1998) (en banc). 

Thereafter, PCRA counsel filed a timely notice of appeal on appellant’s behalf 

on April 27, 2017. On May 2, 2017, the PCRA court granted PCRA counsel 

permission to withdraw. On May 5, 2017, Lauren A. Wimmer, Esq.

(“Attorney Wimmer”), entered her appearance and currently represents 

appellant on appeal. The PCRA court did not order appellant to file a concise 

statement of errors complained of on appeal, in accordance with 

Pa.R.A.P. 1925(b).4 

 

4 The record reflects that on June 13, 2011, appellant’s co-conspirator, Gray, 

pled guilty at CP-51-CR-00015175-2008 to third-degree murder, robbery, and 

related offenses. On July 8, 2011, a jury found appellant’s co-conspirator, 

Harville, guilty of second-degree murder, burglary, and related offenses at 

CP-51-CR-00012109-2008. Thereafter, on March 15, 2016, a panel of this 

court affirmed the order dismissing Harville’s PCRA petition. See 

Commonwealth v. Harville, 144 A.3d 199 (Pa.Super. 2016) (unpublished 

memorandum).
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Appellant raises a litany of ineffective assistance of counsel claims for 

our review. Specifically, appellant avers as follows:

I. Prior PCRA counsel was ineffective for failing to 

raise in the amended PCRA petition that trial 

counsel was ineffective for failing to investigate, 

develop, and produce alibi evidence.

II. PCRA counsel was ineffective for failing to raise 

in the amended PCRA petition that trial counsel 

was ineffective for failing to question Appellant’s 

character witnesses regarding his reputation for 

truthfulness.

III. Trial counsel was ineffective for failing to 

thoroughly cross-examine the state’s expert on 

the reliability of the cell phone evidence.

IV. Trial counsel was ineffective for failing to call a 

defense expert to dispute the Commonwealth's 

cell phone evidence.

V. Trial counsel was ineffective for failing to 

investigate co-conspirator, Robert Gray’s rental 

vehicle. 

VI. Trial counsel was ineffective for failing to object 

to the prosecutor’s closing argument wherein he 

referenced September 11, 2001. 

Appellant’s brief at i-ii. Appellant further argues that the PCRA court denied 

his petition without conducting an evidentiary hearing on all the 

aforementioned issues raised in his PCRA petition. (Id. at 3, ¶ II.)5

 

5 We recognize that Attorney Wimmer has properly briefed appellant’s layered 

ineffectiveness claims by applying the three-prong ineffectiveness test to each 

level of representation in accordance with Commonwealth v. Reid, 99 A.3d 

470, 482 (Pa. 2014). (See appellant’s brief at 9-12, 14-15.)
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Proper appellate review of a PCRA court’s dismissal of a PCRA petition 

is limited to the examination of “whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants 

great deference to the findings of the PCRA court, and we will not disturb those 

findings merely because the record could support a contrary holding.” 

Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002) (citation 

omitted). In order to be eligible for PCRA relief, a defendant must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). 

Further, these issues must be neither previously litigated nor waived. 

42 Pa.C.S.A. § 9543(a)(3).

Appellant’s first six claims concern the effectiveness of his trial and/or 

PCRA counsel. To prevail on a claim of ineffective assistance of counsel under 

the PCRA, a petitioner must establish the following three factors: “first[,] the 

underlying claim has arguable merit; second, that counsel had no reasonable 

basis for his action or inaction; and third, that Appellant was prejudiced.” 

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)

(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014). 

[A] PCRA petitioner will be granted relief only when he 

proves, by a preponderance of the evidence, that his 

conviction or sentence resulted from the [i]neffective 

assistance of counsel which, in the circumstances of 

the particular case, so undermined the 

truth-determining process that no reliable 
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adjudication of guilt or innocence could have taken 

place. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation 

marks omitted; some brackets in original), citing 42 Pa.C.S.A. 

§ 9543(a)(2)(ii).

“[C]ounsel is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 

1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487 

(Pa. 2011). Additionally, counsel is not ineffective for failing to raise a claim 

that is devoid of merit. Commonwealth v. Ligons, 971 A.2d 1125, 1146 

(Pa. 2009). 

Appellant first argues that PCRA counsel was ineffective for failing to 

argue in the November 3, 2016 amended PCRA petition that trial counsel was 

ineffective “for failing to investigate, develop, and produce alibi evidence.” 

(Appellant’s brief at 8.) Specifically, appellant contends that trial counsel had 

no strategic basis not to call Tiffany Mikell, appellant’s then-wife, as an alibi 

witness at trial. (Id. at 9.) Appellant avers that Mikell “would have testified 

that [a]ppellant was with her at their home in Delaware taking care of their 

newborn child on the exact date and time of the incident.” (Id. at 9-10.) This 

claim is meritless.

A claim that counsel was ineffective for failing to investigate potential 

witnesses or call them to testify at trial requires a petitioner to “establish that 

the witness existed and was available, that counsel was informed of the 
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witness’ existence, that the witness was ready and willing to testify and that 

the absence of the witness prejudiced the defendant to a point where the 

defendant was denied a fair trial.” Commonwealth v. Moser, 921 A.2d 526, 

531 (Pa.Super. 2007) (citation omitted).

Here, PCRA counsel had a reasonable basis not to raise trial counsel’s 

purported ineffectiveness for failing to call Mikell as an alibi witness at trial 

because he was not aware of her existence at the time he filed the amended 

PCRA petition on appellant’s behalf. The affidavit from Mikell that appellant 

attached to his brief as “Appendix C” and upon which he bases his claim is 

dated May 19, 2017, more than six weeks after the PCRA court dismissed 

appellant’s PCRA petition. (See appellant’s brief at 10; Appendix C.) 

Additionally, neither appellant’s initial pro se PCRA petition, his March 3, 2017 

response to the Rule 907 notice, nor his subsequent April 3 and 10, 2017 

petitions specifically identify Mikell as an alibi witness. (See certified record 

at nos. 39P, 42P, and 43P.) Moreover, although appellant avers that PCRA 

counsel was made aware of trial counsel’s failure to interview Mikell as an alibi 

witness via a March 6, 2017 letter, this letter is well beyond the date that 

PCRA counsel filed the amended petition on appellant’s behalf, November 3, 

2016, and contains no time-stamp or post-mark indicating it was received by 

counsel. (See id. at 12; Appendix E.) Accordingly, appellant’s ineffectiveness 

claim lacks arguable merit.
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Appellant next argues that PCRA counsel was ineffective for failing to 

raise in the November 3, 2016 amended PCRA petition a claim that trial 

counsel was ineffective “for failing to question [a]ppellant’s character 

witnesses regarding his reputation for truthfulness.” (Appellant’s brief at 13.) 

Appellant avers that this claim was properly preserved in his March 3, 2017 

pro se response to the PCRA court’s Rule 907 notice. (Id. at n.2.) The record 

belies this contention. 

Courts in this Commonwealth have long recognized that claims of PCRA 

counsel’s purported ineffectiveness must be specifically raised in a response 

to a Rule 907 notice or in a serial PCRA petition, or they are waived. See 

Commonwealth v. Henkel, 90 A.3d 16, 29 (Pa.Super. 2014), appeal 

denied, 101 A.3d 785 (Pa. 2014); see also Commonwealth v. Pitts, 981 

A.2d 875, 879 n.3 (Pa. 2009) (holding that a petitioner waived any issue 

pertaining to the adequacy of PCRA counsel’s representation where he failed 

to raise it in his response to the PCRA court’s Rule 907 notice). Likewise, 

arguments which are undeveloped and lack citation to the certified record are

waived. See Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa.Super. 

2006), appeal denied, 920 A.2d 831 (Pa. 2007); see also Pa.R.A.P. 2119(c).

Instantly, the record reveals that appellant’s pro se response to the 

PCRA court’s Rule 907 notice makes no mention of trial counsel’s failure to 

specifically question any witnesses with regard to appellant’s reputation for 

truthfulness. (See Rule 907 response, 3/3/17 at ¶¶ 1-7.) Rather, appellant’s 
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argument on this issue is comprised primarily of boilerplate allegations of both 

trial and PCRA counsel’s purported ineffective representation and does not 

specifically identify the witnesses trial counsel failed to question. Accordingly, 

appellant has waived this claim.6

Appellant’s next two claims concern the cell phone evidence presented 

at trial. Appellant contends that “trial counsel was ineffective for failing to 

thoroughly cross examine the [Commonwealth’s] expert, [Special Agent 

Shute] on the reliability of the cell phone evidence.” (Appellant’s brief at 16.) 

Appellant further avers that trial counsel was ineffective “for failing to call a 

defense expert to dispute the Commonwealth’s cell phone evidence.” (Id. at 

19.) For the following reasons, we disagree.

Here, the PCRA court comprehensively discussed these ineffectiveness 

claims in its March 30, 2017 opinion and found that they were either meritless 

and/or appellant’s trial counsel had a reasonable strategic basis for his 

decisions. Specifically, the PCRA court concluded as follows:

[Appellant] contends that trial counsel was ineffective 

for failing to investigate and call an additional expert 

witness to rebut the Commonwealth cell phone tower 

analysis evidence and further failed to challenge 

 

6 Moreover, even if appellant had properly preserved this claim, we find that 

he has failed to show prejudice. “To establish . . . the prejudice element, the 

petitioner must show that there is a reasonable probability that the outcome 

of the proceedings would have been different but for counsel’s action or 

inaction.” Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013), cert. 

denied, 135 S.Ct. 56 (2014). A boilerplate or bald allegation of prejudice, as 

is the case here, “cannot satisfy a[n appellant’s] burden to prove that counsel 

was ineffective.” Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) 

(citations omitted).
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expert witness [Agent Shute’s] credentials. The mere 

failure to call an expert rebuttal witness is not per se

ineffectiveness, and counsel need not introduce such 

expert if he effectively cross[-]examines the 

Commonwealth’s witnesses and elicits helpful 

testimony. Trial counsel will not be deemed 

ineffective for failing to call a medical, forensic, or 

scientific expert merely to critically evaluate expert 

testimony that was presented by the prosecution. 

Agent Shute testified that [appellant’s] cell phone was 

near the scene of the crime based on cellular tower 

analysis. While trial counsel employed this data to 

challenge the Commonwealth’s theory of the case, 

[appellant] claims that his investigation of the 

underlying scientific reliability of the evidence was 

deficient, resulting in prejudice. In support, 

[appellant] cites a study by telecommunications 

expert Manfred Schenk, who concludes that a single 

cell phone tower can only isolate a person’s location 

within a 418 square mile range, and that any more 

specific location drawn from the data is nothing more 

than mere conjecture. [Appellant] further contends 

that trial counsel failed to investigate Pisano’s, 

Harville’s, and Gray’s phones to determine whether or 

not the evidence was corroborated. [Appellant] 

alleges that adequate investigation would have 

revealed that Harville’s phone was not in contact with 

[appellant’s] phone at the time of the incident, and 

failure to determine whether other phones were in the 

area prevented trial counsel from developing theories 

that unidentified third parties may have been 

responsible for the murder.

Trial counsel's cross[-]examination of Agent Shute 

was an effective attempt to cast doubt on the veracity 

of his findings. Trial counsel elicited that Agent Shute 

could not attribute [appellant] to any phone recovered 

in this matter, and that the records appeared to show 

that the two phones that called each other at the time 

of the shooting both belonged to Gray. [(Notes of 

testimony], 8/13/13 at 197-200.[)] Shute further 

acknowledged that he did not investigate Harville’s or 

Pisano’s phones, and in fact never heard Harville’s 
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name before trial. [(]Id. at 201-203.[)] This line of 

questioning is consistent with [appellant’s] theory, as 

presented at trial, that Gray and Harville acted in 

concert, without [appellant’s] involvement.

[Appellant] fails to meet his burden with respect to 

the second prong of his argument. [Appellant] does 

not present any evidence from Pisano’s, Harville’s, or 

Gray’s phones that contradict the evidence compiled 

by Agent Shute. To suggest that those phones may 

contain contrary evidence is mere conjecture.

PCRA court opinion, 3/30/17 at 11-13 (case citations omitted).

We have reviewed the record in its entirety and have considered the 

merit of appellant’s arguments. Following our careful consideration of the 

record, including the briefs of the parties and the applicable law, we find that 

the PCRA court’s conclusions are supported by competent evidence and are 

clearly free of legal error. Accordingly, we adopt the aforementioned analysis 

of the PCRA court as our own with respect to these ineffectiveness claims.

Appellant next argues that trial counsel was ineffective for failing to 

conduct an investigation of the rental vehicle that appellant’s co-conspirators, 

Gray and Harville, drove on the day of Pisano’s murder. (Appellant’s brief at 

24.) Appellant maintains that this vehicle may have contained “DNA, 

fingerprints, and other forensic material that could have exonerated 

[a]ppellant by demonstrating he was never inside the vehicle[,]” and that 

“[trial] counsel had no reasonable basis for failing to investigate this

potentially exculpatory evidence.” (Id.) We disagree.
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As noted, in order to be entitled to relief under the PCRA, appellant must 

establish that the ineffective assistance of counsel “so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could 

have taken place.” Spotz, 84 A.3d at 311. Our supreme court has long 

recognized that “ineffectiveness of counsel claims may not be raised in a 

vacuum.” Commonwealth v. Morris, 684 A.2d 1037, 1045 (Pa. 1996) 

(citations omitted), cert. denied, 521 U.S. 1106 (1997). “A determination of 

ineffectiveness cannot be based on conjecture concerning alleged physical 

evidence that[,]” as is the case here, “has never been admitted into evidence.” 

Id. (emphasis added). In the instant matter, appellant’s claim is wholly 

speculative and there is no basis for the PCRA court to deduce that trial 

counsel’s purported oversight “so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place.” 

Spotz, 84 A.3d at 311; see also 42 Pa.C.S.A. § 9543(a)(2)(ii). Accordingly, 

appellant’s ineffectiveness claim must fail.

Appellant next argues that trial counsel was ineffective for failing to 

object to comments the prosecutor made during his closing argument that 

referenced the September 11, 2001 terrorist attacks. (Appellant’s brief at 

25.) Specifically, Assistant District Attorney Richard Sax (“ADA Sax”) made 

the following brief comments during his closing statement which appellant now 

challenges on appeal:

Sometimes beyond a reasonable doubt is like a jigsaw

puzzle. So all these pieces you don’t look at one piece. 
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Let’s say this was a jigsaw puzzle of like the Eiffel

Tower or The World Trade Center with like two planes

you know two big holes in it and one plane going in. 

But there was a piece missing from the lower floors

here or from over here with the piece missing that

showed one of bodies throwing themselves out of the

building. Imagine somebody telling you that that’s 

not The World Trade Center on the day of September 

11th 2001 or that’s not the Eiffel Tower because 

there’s a piece over here. No.

If every corner and house had video, yeah, there’s 

[appellant]. What you saw and what you heard and

what was corroborated beyond all doubt if you use

your common sense.

Notes of testimony, 8/15/13, at 180-181.

Appellant argues that ADA Sax’s comments were “innately prejudicial 

and constituted prosecutorial misconduct” given appellant’s Muslim heritage 

and that trial counsel’s failure to object on this basis entitles him to a new 

trial. (Appellant’s brief at 27-28.) We disagree.

“Our standard of review for a claim of prosecutorial misconduct is limited 

to whether the trial court abused its discretion.” Commonwealth v. Harris, 

884 A.2d 920, 927 (Pa.Super. 2005), appeal denied, 928 A.2d 1289 (Pa. 

2007) (citations omitted). Not every unwise remark on a prosecutor’s part, 

however, constitutes reversible error. Id. “Prosecutorial misconduct occurs 

when the effect of the prosecutor’s comments would be to prejudice the trier 

of fact, forming in its mind fixed bias and hostility toward the defendant so 

that it could not weigh the evidence objectively and render a true verdict.” 
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Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa.Super. 2003), appeal 

denied, 845 A.2d 816 (Pa. 2004).

Counsel[’s] remarks to the jury may contain fair 

deductions and legitimate inferences from the 

evidence presented during the testimony. The 

prosecutor may always argue to the jury that the 

evidence establishes the defendant’s guilt, although a 

prosecutor may not offer his personal opinion as to 

the guilt of the accused either in argument or in 

testimony from the witness stand. Nor may he or she 

express a personal belief and opinion as to the truth 

or falsity of evidence of defendant’s guilt, including 

the credibility of a witness.

Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal 

denied, 788 A.2d 372 (Pa. 2001), cert. denied, 535 U.S. 1059 (2002).

Following our careful review, we agree with the PCRA court that 

ADA Sax’s comments, when read as a whole, were not so prejudicial as to 

warrant that a new trial be granted. “A petitioner establishes prejudice when 

he demonstrates that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and 

internal quotation marks omitted). “[A] prosecutor is permitted fairly wide 

latitude in advocating for the Commonwealth, including the right to argue all 

fair conclusions from the evidence, to respond to defense arguments, and to 

engage in a certain degree of oratorical flair.” Harris, 884 A.2d at 931. All 

such comments must be reviewed in the context in which they were made. 

Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005).
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Here, the record reflects that ADA Sax’s reference to planes striking the 

World Trade Center, while arguably tactless, was not the type of comment

that would cause the jury to form a fixed bias or hostility towards appellant 

and prevent it from rendering a fair and impartial verdict. Rather, we agree 

with the PCRA court that ADA Sax’s comments were “a vivid, if imprecise, 

explanation of the nature of circumstantial evidence” and were a fair response 

to trial counsel’s prior inference that appellant cannot be found guilty because 

he did not appear in any of the video surveillance footage of the incident. 

(See PCRA court opinion, 3/30/17 at 16, citing notes of testimony, 8/15/13 

at 153.) Accordingly, appellant’s trial counsel had no basis upon which to 

object and appellant’s underlying ineffectiveness claim must fail. See

Commonwealth v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003) (stating, “it 

is axiomatic that . . . counsel will not be considered ineffective for failing to 

pursue meritless claims.”), appeal denied, 828 A.2d 350 (Pa. 2003).

Lastly, appellant contends, albeit parenthetically, that the PCRA court 

erred in dismissing his PCRA petition without conducting an evidentiary 

hearing on all the aforementioned issues raised in his PCRA petition. 

(Appellant’s brief at 3, ¶ II.) We disagree.

This court has long recognized that there is no absolute right to an 

evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super. 

2006) (citation omitted). “It is within the PCRA court’s discretion to decline 

to hold a hearing if the petitioner’s claim is patently frivolous and has no 
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support either in the record or other evidence.” Commonwealth v. Wah, 42 

A.3d 335, 338 (Pa.Super. 2012) (citations omitted). When the PCRA court 

denies a petition without an evidentiary hearing, we “examine each issue 

raised in the PCRA petition in light of the record certified before it in order to 

determine if the PCRA court erred in its determination that there were no 

genuine issues of material fact in controversy and in denying relief without 

conducting an evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d 

1238, 1240 (Pa.Super. 2004).

As discussed, there was no merit to appellant’s underlying 

ineffectiveness claims. Accordingly, we discern no error on the part of the 

PCRA court in dismissing appellant’s petition without conducting an 

evidentiary hearing. 

For all the foregoing reasons, we affirm the March 30, 2017 order of the 

PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/1/18