J. S 1 5 0 43 /1 8

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 E DA 20 17
: 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 s et 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 Ho spital, 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] automaticJ. S 1 5 0 43 /1 8

- 2

- weapon in the bedroom, on the bed, partially cove red 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] ca me to visit Pisano in the aftern oon 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 repl ied “we already got our food[,]” as the two me n 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 no t 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 t he couch where he was sitting. As [McDonald] reached down for the gun, he heard aJ. S 1 5 0 43 /1 8

- 3

- sh ot. When h e 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 l ook 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 seve n 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
c amera located outside of Pisano’s apartment building. Clyde Frazier, an officer with the Philadelphia Police Department’ s Crime Scene Unit, recovered fingerprints from the pi zza box found outside of Pisano’ s apartment and matched those prints to Robert Gr ay, 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 h is involvement in the shooting. The surveillance video depicts Gray and Harville walking ba ck and forth outside of [Pisano’ s] building, [with] Gray holding a pizza box and Harville with his hands in his pockets.J. S 1 5 0 43 /1 8

- 4

- 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 whil e, that ’s when [appellant ] starts talking about this dude that had all this wee d. He said he just left the boy’ s house and the guy had like ten pounds of weed in the dr yer and some on his countertop. He said the boy had a lot of money in a Nike box under the table in the bac k room where the dog was. [Appellant ] was like ‘we should roll on the boy.’ He said the gu y was a punk and that we wouldn’ t have to do nothing but scare the bo y. We all agreed and then [appellant ] gave [Harville] the gun.
[Gray exp lained 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, t hen me and [Harville] and [appellant ] wa lked around to the house. [ Appel lant ] 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 hisJ. S 1 5 0 43 /1 8

- 5

- hands and said like two mor e times ‘you want the back.’ He’ s like, ‘I'm telling you, you got the wrong apartment. I t 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. A s [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 w as gone. I ran to the car and [appellant ] was already in the driver’ s seat. I got in the backseat and [Harville] came up b ehind 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
o f Investigation [(hereinafter, “Special Agent Shute”)], analyzed [appellant ’ s ] cellular phone records from March 31, 2008 through Apri l 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

-J. S 1 5 0 43 /1 8

- 6

- 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 t he 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 sentenc e of imprisonment as to Sec ond

- Degree Murder, and a concurrent term of ten to twenty years of imprisonme nt as to Conspiracy. [ 2 ]
On November 19, 2014, Superior Court aff irmed [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 A mended 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”).J. S 1 5 0 43 /1 8

- 7

- 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 PC RA 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 lett er 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 t o 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)

.J. S 1 5 0 43 /1 8

- 8

-

Appellant raises a litany of ineffective assistance of counse l 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, develo p, 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 Common wealth's cell phone evidence.

V. Trial counsel was ineffective for failing to investigate co

- conspirator, Robert Gray’ s ren tal 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 appe llant’s brief at 9

- 12, 14

- 15.)J. S 1 5 0 43 /1 8

- 9

-

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 o f 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.S uper. 2002) (citation
omitted). In order to be eligible for PCRA relief, a defendant must plead and
prove by a prepon derance 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 cla ims 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 pr ocess that no reliableJ. S 1 5 0 43 /1 8

- 10

- 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 ineffect ive 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 cou nsel 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

- wif e, as an alibi

wi tness at trial. ( Id. at 9.) Appellant avers that Mikell “would have testified
that [a]p p ellant 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 info rmed of theJ. S 1 5 0 43 /1 8

- 11

-

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

defend ant was denied a fair trial.” Commonwealth v. Moser , 921 A.2d 526,
531 (Pa. Super. 200 7 ) (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

. T he 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 ap pellant’s brief at 10; A ppendix 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

PC RA 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 i

d. at 12; A ppendix E.) Accordingly, appellant’s ineffectiveness

claim lacks arguable merit

.J. S 1 5 0 43 /1 8

- 12

-

Appellant next argues that PCRA counsel was i neffective 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), appe al

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 Ru le 907 response, 3/3/17 at ¶¶ 1

- 7.) Rather, appellant’sJ. S 1 5 0 43 /1 8

- 13

-

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 phon e evidence presented

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

thor oughly 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 exper t to dispute the Commonwealth’ s cell phone evidence. ” ( Id. at
19.) For the following reasons, we disagree.
Here, t he 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 ad ditional 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, 11 28 (Pa. 2011) (citations omitted).J. S 1 5 0 43 /1 8

- 14

- 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 in vestigate 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
w as an effective attempt to cas t 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 eac h 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’sJ. S 1 5 0 43 /1 8

- 15

- name before trial. [(] Id. a t 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 phone s 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

m erit 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 ar e 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 a n investigation of the rental vehicle that appellant’s co

- conspirator s , Gray and H arville , drove on the day of Pisan o’s murder

. (Appellant’s brief at

24. ) Appellant maintains that this vehicle may have contained “ DNA,
fingerprints, and other forensic mater ial 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.J. S 1 5 0 43 /1 8

- 16

-

As noted , in order to be entitled to relief under the PCRA, a ppellant must

establish that the ineffective assistance of counsel “ so und ermined the truth

determining process that no reliable adjudication of guilt or i nn ocence 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.” Commo nwealth v. Morris , 684 A.2d 1037, 1045 (Pa. 199 6)
(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 neve r 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 c ou rt to deduce that trial

counsel’ s purported oversight “ so undermined the truth

- determining process
that no reliable adjudication of guilt or in nocence 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 ineffectiv e for failing to
object to comments the prosecutor made during his closing argument that
referenced the Septembe r 11, 2001 terrorist attacks. (Appellant’s brief at

2 5.) 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.J. S 1 5 0 43 /1 8

- 17

- Let’ s say this was a jigsaw puzzle of like the Eiffel Towe r 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 th e building. Imagine somebody telling you that that’ s not The World Trade Center on the day of September 11 th 2001 or that’ s not the Eiffel Tower because there’ s a piece over here. No.
If every corner an d 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” g iven 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 t rial 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 u nwise 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 v erdict.”J. S 1 5 0 43 /1 8

- 18

-

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 pros ecutor 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
e xpress 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).J. S 1 5 0 43 /1 8

- 19

-

Here, the record reflects that ADA Sax ’s refe rence to plan es 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 a nd 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 in effectiveness 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 co ntends , albeit parenthetically, that the PCRA court
erred in dismissing his PCRA petition without conducting an evidentiary
hearing on all the aforementioned issues rais ed in his PCRA petition.
(Appellant’s brief at 3, ¶ II.) We disagree.
This court has long recognized that t here is no absolute r ight to an
evidentiary hearing. Commonwealth v. Hart , 911 A.2d 939, 941 (Pa. S u per. 2006) (citation omitted). “It is within the PCRA court’s discretion to decline
to hold a hearing if the petitione r’s claim is patently frivolous and has noJ. S 1 5 0 43 /1 8

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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 p etition without an evidentiary hearing, we “examine e ach issue
raised in the PCRA p etition 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

cond u cting an e videntiary 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 appellan t’s petition without con ducting 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