J-S49004- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KENDALL C. RICHARDSON Appellant No. 2204 EDA 2012

Appeal from the PCRA Order July 13 , 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP

- 39

- CR -0000217-2008

BEFORE: OLSON, OTT and STABILE, JJ. MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 26, 2014 Appellant, Kendall C. Richardson, appeals from the ord er entered on July 13, 2012, dismissing his first petition filed unde r the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Furth er, on appeal, Appellant’s cou rt -appointed counsel has filed a petition for leave to withdraw as counsel. We grant counsel’s motion to withdraw and af firm the order dismissing Appellant’s PCRA petition. In the PCRA court’s thorough and well -written opinion, the court summarized the underlying facts and procedural posture o f this case. As the PCRA court explained:

[During Appellant’s jury trial,] the following testi mony was elicited[.] [The victim in this matter is named Alfred o Suarez (hereinafter “the victim”)]. On June 15, 2007, Luis Avila, Jr., the brother of the victim, [] brought [ Appellant] to the victim’s apartment [on Wayne Street, in Allen town, Pennsylvania,] to purchase marijuana from the victim. AtJ-S49004- 14

- 2 - that time, Melissa Guzman, a [23-year old] woman who rented the [third] floor apartment from the victim[ ,] was introduced briefly to [Mr. Avila] and [Appellant]. The drug deal occurred and [Mr. Avila] and [Appellant] left th e premises. Upon leaving [the victim’s] apartment, [Appellant] showed [Mr. Avila] a handgun. Specificall y, [Appellant] carried the gun in his waist band and pul led it out far enough for [Mr. Avila] to observe that it wa s a black revolver. [Appellant] expressed to [Mr. Avila] that he believed it to be a .45 caliber [handgun] and that h e possessed the gun for protection. [O]n June 18, 2007, Jose Cruz, a tenant residing [in the victim’s apartment building], heard shots fired [from] within [the building. Mr. Cruz telephoned 911.] At appro ximately the same time, Stephen Purdue, a witness residing [near by]

. . . heard what he believed to be gunshots and called [911] as well. Mr. Purdue witnessed a male [(who was later identified as Darryl Peterson)] emerge from Wayne St reet and quickly run down 13 th Street. Then Mr. Purdue observed a second male [(who was later identified as Appellant)] approach the intersection of Wayne and 13 th Streets. According to the audiotape of Mr. Purdue’s 91 1 telephone call, Mr. Purdue described this second individu al as black and wearing dark clothing and a red cap. . .

. Officer Michael Torres of the Allentown Police Departme nt responded to [the shooting]. While he was approaching 13 th Street, he observed a vehicle proceeding northbound flashing its high beams. In full uniform and in a mar ked police car, [Officer Torres] approached the vehicle and made contact with [Ms. Guzman. Ms. Guzman appeared] scared and shaken up [and] conversed with Officer Torres in Spanish about the shooting. While the scene was being processed, Officer Torres gathered more information about Ms. Guzman. Ms. Guzman informed Officer Torres that the victim was he r roommate [and that she referred to him] as “Papa.” Sh e indicated that she was present in the apartment with t he victim and another friend (later identified as Darryl Peterson a/k/a “D Block”) w ho was a dark-skinned black or Hispanic male, wearing blue jean shorts, a blue and white shir t, [Nike] sneakers[,] and donning braids. [The victim]J-S49004- 14

- 3 - received a telephone call from an unknown caller and stated, “My boy’s coming over.” Subsequently, [Appell ant] arrived at [the victim’s] apartment and [the victim] let [Appellant into the apartment. The individuals] hu ng out in the living room area for a few minutes socializing. Thereafter, [the victim] went to the kitchen area whe re he was soon joined by [Appellant]. [Appellant] ordered [the victim] onto the floor, stated[] “I’m offing you,” and shot him in the head. Then [Appellant] proceeded to the living room area w here [Ms. Guzman] and Darryl Peterson were seated. Darryl Peterson struggled with [Appellant] and [Ms.] Guzman fled to her upstairs third floor apartment and exited out of the third floor window onto the roof. [Appellant] chased Darryl Peterson downstairs and out of the apartment, shooting at him with a revolver. [Ms. Guzman] witnessed the shoote r exit the apartment, re-enter [the apartment,] and ultimately exit the apartment. During her initial interview with Detective Gress, [Ms .] Guzman stated that she recognized [Appellant] from the brief encounter that she had with him three [] days ea rlier when [Mr.] Avila had brought him to [the victim’s] apartment to buy drugs. [Ms.] Guzman testified that she was positive that it was the same person. Further[], [ Ms.] Guzman described the shooter in her second police interview as a black male, approximately [five-feet, teninches] tall, [with a] medium build, bushy hair[,] and bushy beard. Also, at trial, [Ms.] Guzman [testified] that she focused on [Appellant’s] eyes. With great conviction, [ Ms.] Guzman [testified] that on June 18, 2007, she looked into the eyes of the person who she thought was going to kil l her and [testified] that she would never forget those eyes. Testimony revealed that [Ms.] Guzman unexpectedly met [Mr.] Avila on the street two [] days after the homi cide and informed him that the shooter was the person he had brought to [the victim’s] apartment to purchase drug s on June 15, 2007. Consequently, a photo array was compil ed and shown to [Mr. Avila]. Upon positively identifyin g [Appellant], the [d]etectives presented the photo arra y to [Ms.] Guzman. [Ms.] Guzman pointed to [Appellant’s] photograph and indicated that he was the person who s hotJ-S49004- 14

- 4 - [the victim]. Subsequent to this identification . . . , the photo array was presented to witness Juan Collazo, an individual who resided near the location of the incid ent and who saw a person fleeing from the subject residence after the shooting []. [Mr. Collazo] identified [Appellan t] as the person he saw running from the doorway of the subject residence on the evening in question. [On] June 1, 2009, [the jury found Appellant] guilt y of [first-degree murder,] attempted homicide, robbery[,] and recklessly endangering another person. [ 1 ] [On] July 14, 2009, [the trial court sentenced Appellant to life imprisonment for the murder conviction]. . . . [On] April 18, 2011, the Superior Court [] affirmed [Appellant’s] judgment of s entence [and, on October 17, 2011, the Pennsylvania Supreme Court denied Appellan t’s petition for allowance of appeal. Commonwealth v. Richardson , 29 A.3d 835 (Pa. Super. 2011) (unpublished memorandum) at 1-20, appeal denied , 30 A.3d 488 (Pa. 2011)]. . .

. [On] March 22, 2012, [Appellant] filed a [PCRA petit ion. Appointed counsel then filed an amended PCRA petition ] on May 31, 2012. . . . In [the PCRA petition, Appella nt claimed that his trial counsel] rendered ineffective assistance [] by: (1) failing to adequate[ly] investigate and/or call A lan Jenkins and Carissa Clark to testify as alibi witnesses; (2 ) failing to adequately investigate exculpatory eviden ce regarding cell phone records of [the victim]; (3) fail ing to object to Commonwealth witnesses refreshing their recollection through reports written by police officers; (4) failing to object to the hearsay testimony of Officer Torres regarding statements made by Ms. Guzman which were not contained in the police reports; and[,] (5) failing to includ e in the [Rule] 1925(b) statement issues regarding trial court error in failing to grant a mistrial where improper influences occurred. . . .

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1 18 Pa.C.S.A. §§ 2502(a), 901(a), 3701(a), and 2705 , respectively.J-S49004- 14

- 5 - A hearing on [Appellant’s PCRA petition] was conducted on June 6, 2012, from which [the PCRA court made] the following findings of fact. [ 2] Lehigh County Chief Deputy Public Defender Karen Schular represented [Appellant at trial]. Attorney Schular met with [Appellant] regu larly to discuss the case and prepare for trial. In an effort to be thorough, Attorney Schular investigated all the witne sses and people identified in the discovery material that was furnished to her who potentially supported the defense ’s theory of the case. These individuals were investigate d by a Lehigh County Public Defender investigator, as well as personally by Attorney Schular on the weekends. Police interviewed Alan Jenkins, a person that [Appell ant] had identified as an alibi witness. Attorney Schular w ent through great lengths to locate Alan Jenkins to speak w ith him. Ultimately an address in Georgia was [discovered] for Alan Jenkins, and Attorney Schular served a subpoena o n him to appear at the time of trial. Upon receipt of the subpoena, Alan Jenkins contacted Attorney Schular and related to her that he hardly knows [Appellant] and that he did not know anything about the incident. Alan Jen kins was belligerent and [antagonistic] on the [telephone] wit h Attorney Schular, and clearly conveyed that he wanted no involvement in the case. Attorney Schular believed t hat it was too dangerous and risky to utilize him as an alibi witness, and discussed [the] same on multiple occasions with [Appellant]. [Attorney Schular also] spoke with Carissa Clark, [Appellant’s] ex -girlfriend[,] in April of 2008, with regard to [Appellant’s] whereabouts on the night of the murder. Carissa Clark [initially indicated] that she and [Appel lant] had been on [her] porch [at the time of the shooting] and then had gone to bed together []. This information was sufficient to allow Attorney Schular to file a notice of alibi.

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2 Unfortunately, the court reporter lost the tapes that contained the testimony from the June 6, 2012 PCRA hearing. There fore, on November 13, 2013, the parties appeared before the PCRA court and attempted to recreate the June 6, 2012 transcript. See N.T. Recreation Hearing, 11/13/13, at 1- 43.J-S49004- 14

- 6 - However, Carissa Clark was subsequently interviewed by Detective Vazquez. [Carissa Clark told Detective Vazqu ez] that she did not specifically recall the evening of the murder, but she could relate to him what she and [Appellant] routinely did each day. In light of thi s inconsistent testimony provided by Carissa Clark, Atto rney Schular spoke with Carissa Clark again concerning the issue of alibi. Carissa Clark reiterated her statement that she had given to Detective Vazquez and informed Attorney Schu lar that she could only provide a general context of their typical evening routine, but [that she] did not have any spe cific recollection of the subject evening. Additionally, Att orney Schular noted that when Carissa Clark became upset, she developed an attitude that [Attorney Schular] felt w ould not be received well by the jury. Based on the foregoing , Attorney Schular believed that it would be a poor de cision to have Carissa Clark testify at the time of trial and be subject to cross-examination. In addition to investigating people, Attorney Schular investigated the cell phone records of [the victim] that were produced to her prior to trial. Attorney Schular was aware that there was a direct connect at 9:36 [p.m.] to the victim’s cell phone from a “Jeremy.” Additionally , Attorney Schular investigated this information and it was determ ined that this number belonged to an individual named Lew is Brown who resided in Georgia. At the time of trial, during cross-examination, Attorney Schular extensively attacked Detective Gre ss’s investigation into the cell phone records and specifically argued that the investigation was lack ing concerning identifying the true identity of “Jeremy.” During the trial, Officer Torres testified that Ms. Gu zman stated that she had recognized [Appellant] because she ha d seen him three [] days prior to the murder []. This statement was not contained in Officer Torres’ police rep ort. Nonetheless, Attorney Schular did not object to its admission. Indeed, Attorney Schular made the tactica l decision not to object because she wanted other statements made by Ms. Guzman to be admitted, which dealt with h er initial description of the perpetrator. Initially Ms. Guzman had described the shooter as having bushy hair and a bush y beard. This description was i nconsistent with [Appellant’s] appearance and the other witnesses’ testimony, andJ-S49004- 14

- 7 - [Attorney Schular] believed that it was imperative to get this information before the jury for consideration. Also, Attorney Schular thoroughly cross-examined Officer Torr es on this issue, indicating that his report was extremely detailed, yet failed to include this seemingly vital piece of information. Finally, during the appeal process, Attorney Schular fi led a [Pennsylvania Rule of Appellate Procedure 1925(b)] statement[,] which included numerous allegations of erro r committed by [the trial court], including [the trial court’s alleged] error in failing to grant a mistrial based o n a “trial by transcript” and the length of the [jury] deliberat ions. Attorney Schular also included in her appellate brief the ancillary issues of the jury foreperson doing her own [Spanish to English] translations and an incident in wh ich someone [said] “Guilty, guilty, guilty,” as the jurors we re being escorted to their vehicles at the end of the even ing. Attorney Schular included these ancillary issues in her br ief only to provide the Superior Court [] with a complet e overview of the case, knowing that there was no merit to the issues in and of themselves. As a seasoned defense attorney, Attorney Schular was aware that the best str ategy in filing an appeal is to be concise with regard to the primary potentially meritorious arguments, and not to dilute them by including other flawed issues. Consequently, o nly two [] subsections were included in the [Rule] 1925(b) statement with regard to [the trial court’s] alleged f ailure to grant a mistrial. PCRA Court Opinion, 7/13/12, at 1-9 (internal footn otes omitted) (some internal capitalization omitted). The PCRA court denied Appellant’s PCRA petition on July 13, 2012 and Appellant filed a timely notice of appeal. After re viewing the record, however, PCRA counsel determined that the appeal had no merit. As a result, PCRA counsel notified Appellant that he inten ded to withdraw from representation and PCRA counsel filed, in this Court, both a petition to withdraw as counsel and an accompanying “no merit” brief pursuant toJ-S49004- 14

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Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ). See

Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007) (to comply with Turner / Finley , counsel must either “submit a ‘no

- merit’ letter to the trial court[] or [a] brief on appeal to this C ourt”). Appellant now raises the following claims on appeal:

1. [Trial c]ounsel was ineffective for failing to adeq uately investigate and/or call to testify the alibi witnesses, C arissa Clark and Alan Jenkins[.] 2. [Trial c]ounsel was ineffective for failing to adequ ately investigate exculpatory evidence regarding the cell ph one records of [the victim.] 3. [Trial c]ounsel was ineffective for failing to object to the hearsay testimony of Officer Torres regarding statement s made by Ms. Guzman which were not contained in the police reports[.] 4. [Trial c]ounsel was ineffective for failing to includ e issues regarding trial court error in failing to grant a mi strial where improper influences occurred in the [Rule] 1925(b) statement, thereby waiving that issue on appeal. Appellant’s Brief at 2. Before reviewing the merits of this appeal, however, this Court must

first determine whether counsel has fulfilled the necessa ry procedural requirements for withdrawing as counsel. Commonwealth v. Daniels , 947 A.2d 795, 797 (Pa. Super. 2008). As we have explained: Counsel petitioning to withdraw from PCRA representat ion must proceed . . . under [ Turner / Finley . Under]J-S49004- 14

- 9 - Turner / Finley [,] counsel must review the case zealously. Turner / Finley counsel must then submit a “no

- merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which the petitioner wants to h ave reviewed, explaining why and how those issues lack meri t, and requesting permission to withdraw. Counsel must also send to the petitioner: (1) a copy of the “no

- merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

. . . [W]here counsel submits a petition and no-merit letter that do satisfy the technical demands of Turner / Finley , the court

– trial court or this Court

– must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court wi ll permit counsel to withdraw and deny relief.

Wrecks , 931 A.2d at 721 (internal citations omitted). Here, counsel has satisfied all of the above procedural r equirements. We will, the refore, “conduct [our] own review of the merits of the case” and

determine whether the claims are in fact meritless. Id.

We have stated: This Court’s standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by evide nce of record and is free of legal error. In evaluating a P CRA court’s decision, our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level. We may affirm a PCRA court’s decisio n on any grounds if it is supported by the record.J-S49004- 14

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Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal citations omitted). To be eligible for relief under the PCRA, the petit ioner must plead and prove by a preponderance of the evidence that his convi ction or sentence resulted from “one or more” of the seven, specifically en umerated circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One o f these statutorily

enum erated circumstances is the “[i]neffectiveness of counsel which, in the circumstances of the particular case, so undermined the tru th-determining process that no reliable adjudication of guilt or innoce nce could have taken place.” 42 Pa.C.S.A. § 9543(a)(2 )(ii). Counsel is, however, presumed to be effective and “the burden of demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.

Rivera , 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy t his burden, Appellant must plead and prove by a preponderance of the evidence that:

(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness, ther e i s a reasonable probability that the outcome of the chall enged proceedings would have been different. Commonwealth v. Fulton , 830 A.2d 567, 572 (Pa. 2003). “A failure to satisfy any prong of the test for ineffectiveness will re quire rejection of the

claim. ” Id. Further, with respect to the second ineffectiveness prong, we note that an attorney’s “ chosen strategy will not be found to have lacked a reasonable basis unless it is proven that an alternative not chosen offered aJ-S49004- 14

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potential for success substantia lly greater than the course actually pursued.”

Commonwealth v. Cox , 983 A.2d 666, 678 (Pa. 2009) (internal quotations omitted). Appellant first claims that trial counsel was ineffectiv e for “failing to adequately investigate and/or call to testify the alib i witnesses, Carissa Clark

and Alan Jenkins.” This claim is meritless. Our Supreme Court has explained: Generally, an alibi is a defense that places the defend ant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party. At the cor e of an alibi defense is, of course, consistency between the date and time of the crime and that of the defendant’s al ibi.

Commonwealth v. Ali , 10 A.3d 282, 316 (Pa. 2010) (internal citations, quotations, and corrections omitted).

Further: In order to prevail on a claim of ineffectiveness for f ailing to call a witness, a [petitioner] must [plead and] prove, in addition to . . . the three [general ineffective assi stance of counsel] requirements [listed above], that: (1) the w itness existed; (2) the witness was available to testify for th e defense; (3) counsel knew or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the witness’s testimony was so prejudicial as to have denied [the petitioner] a fair trial. Commonwealth v. Wright , 961 A.2d 119, 155 (Pa. 2008). During the PCRA hearing, Appellant’s trial counsel – Attorney Schular

– testified that she investigated Appellant’s alleged “ali bi” prior to trial and,J-S49004- 14

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during the course of this investigation, Attorney Schula r interviewed both Alan Jenkins and Carissa Clark. However, Attorney Sch ular testified that

neither Alan Jenkins n or Carissa Clark were able to “ place[ Appellant] at the relevant time in a different place than the scene invo lved.” Ali , 10 A.3d at 316. Certainly, Attorney Schular testified that Ala n Jenkins declared that “he hardly knew [Appellant] and knew nothing a bout th[e] incident” and that Carissa Clark declared that “she did not have a specific re collection of the subject evening” and that she could only testify as to “wha t their usual practice was.” N.T. Recreation Hearing, 11/13/13, at 28-29.

Therefore, since neither Alan Jenkins nor Carissa Clark was able to

“ place[ Appellant] at the relevant time in a differen t place than the scene involved,” neither individual would have been able t o provide Appellant with an alibi defense at trial. Appellant’s first cl aim on appeal is thus meritless. Next, Appellant claims that his trial counsel was inef fective “ for failing to adequately investigate exculpatory evidence regard ing the cell phone records of [the victim].” According to Appellant, had t rial counsel

invest igated the victim’s cell phone, trial counsel would ha ve learned “that a ‘Luis Brown’ of Georgia had ‘direct connects’ with the v ictim around the time of the murder.” Appellant’s Brief at 4. The PCRA court explained why this issue is meritless: [Appell ant’s] argument [on this issue] . . . is factually contradicted by the record. Attorney Schular investiga ted the cell phone records of [the victim] that were produce d [] by the Commonwealth prior to trial. Attorney Schula r wasJ-S49004- 14

- 13 - aware of the fact that there was a direct connect at 9:3 6 [p.m.] to the victim’s cell phone from a “Jeremy.” Th is information was consistent with the defense’s theory of t he case. Additionally, Attorney Schular investigated thi s information and it was determined that the subscribe r information belonged to a Lewis Brown from Georgia. Attorney Schular ran the criminal histories of “Lewis B rown” in Georgia, and she unfortunately determined that ma ny of the individuals named Lewis Brown from Georgia were incarcerated at the time of the homicide. Also, at th e time of trial, during cross-examination, Attorney Schular extensively attacked Detective Gress’s investigation into the cell phone records and specifically argued that his investigation was lacking with regard to determining t he t rue identity of “Jeremy.” PCRA Court Opinion, 7/13/12, at 12- 13. Therefore, Appellant’s claim on appeal – that his trial counsel was

ineffective “ for failing to adequately investigate exculpatory ev idence regarding the cell phone records of [the victim]”

– fails, as the claim has no

basis in fact. Third, Appellant claims that his trial counsel was ineff ective “for failing to object to the hearsay testimony of Officer Torres reg arding statements made by Ms. Guzman which were not contained in the pol ice rep orts.” Appellant’s Brief at 2. Again, the PCRA court has t horoughly explained why

this claim lacks merit:

During the trial, Officer Torres testified that Ms. Gu zman stated that she had recognized [Appellant] because she ha d seen him three [] days prior to the murder []. This statement was not contained in Officer Torres’ police rep ort. Nonetheless, Attorney Schular did not object to its admission. Indeed, Attorney Schular made the tactica l decision not to object because she wanted other statements made by Ms. Guzman to be admitted, which dealt with h er initial description of the perpetrator. Initially Ms. GuzmanJ-S49004- 14

- 14 - had described the shooter as having bushy hair and a bush y beard. This description was inconsistent with [Appellant ’s] appearance and the ot her witnesses’ testimony, and [Attorney Schular] believed that it was imperative to get this information before the jury for consideration. Also, Attorney Schular thoroughly cross-examined Officer Torr es on this issue, indicating that his report was extremely detailed, yet failed to include this seemingly vital piece of information. Accordingly, [the PCRA court concluded] th at [] Attorney Schular’s aforementioned actions and/or inactions were reasonably based and supported her clien t’s defense. PCRA Court Opinion, 7/13/12, at 12- 13. The PCRA court thus concluded that Attorney Schular’s fa ilure to object to Officer Torres’ hearsay testimony was a valid, reasona ble trial strategy and that Appellant was not able to prove that an alt ernative strategy

“ offered a potential for success substantially greater than the course actually pursued.” Cox , 983 A.2d at 678. The PCRA court’s factual determina tion was supported by the evidence and does not constitute an abuse of discretion. Thus, Appellant’s claim fails.

Fi nally, Appellant claims that Attorney Schular was inef fective for

“ failing to include issues regarding trial court error i n failing to grant a mistrial where improper influences occurred in the [Rule ] 1925(b) statement, thereby waiving that issue on appeal .” Appellant’s Brief at 2. As explained above, these alleged “improper influences” occur red: when, at the jury’s request, portions of the trial testimony wer e re -read to the jury during deliberations and when some unidentified indi vidual declared “guilt y, guilty, guilty” in the presence of some of the jurors.J-S49004- 14

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Appellant’s ineffective assistance of counsel claim fails b ecause the underlying claims have no merit. With respect to the re-reading of testimony, we have held: “[w]hen a jury requests that reco rded testimony be read to it to refresh its memory, it rests within th e trial court's discretion to grant or deny such request . . . so long as there is n ot a flagrant abuse of discretion, this decision should not be overturned on app eal.”

Commonwealth v. Gladden , 665 A.2d 1201, 1205 (Pa. Super. 1995) ( en banc ) (internal quotations and citations omitted). On Appellant’s direct appeal, the trial court explain ed: While it is true that the jury requested a great deal of testimony [be] read back to them during their deliber ations, the questions and testimony that the members of the jur y sought were not duplicative or repetitive in nature. Instead, it absolutely appeared to [the trial] court that the jury was progressing and advancing in its deliberation.” Trial Court Opinion, 12/15/09, at 26. In this case, the trial court did not abuse its discretion when it re-read portions of the trial testimony during the jury’s deli berations. To be sure, Appellant’s trial occurred over 12 days and, during thi s time, the Commonwealth called 14 witnesses. Further, the charges a gainst Appellant were extraordinarily serious and required very careful deliberation by the fact-finders. As such, it was reasonable for the jury to request

– and for the

trial court to allow

– portions of the trial testimony to be re-read to the jury during deliberations. The trial court thus did not e rr when it refused to grant a mistrial based upon the re-reading of the trial test imony and this CourtJ-S49004- 14

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would not have granted Appellant relief on this clai m on direct appeal. Therefore, to the extent Appellant’s ineffective assis tance of counsel challenge is based upon this underlying claim, the chall enge fails. Appellant also claims that his counsel was ineffective fo r failing to preserve, on direct review, the claim that the trial co urt erred in failing to grant a mistrial when some unidentified individual sai d “guilty, guilty, guilty” in the presence of the jurors. The underlying claim i s meritless. On May 26, 2009, in the midst of Appellant’s tri al, the trial court held a hearing on an event that occurred outside of court. D uring this hearing, the trial court heard testimony from Deputy Sheriff Sue S chiavone. Deputy

Schiavone testified:

When the jurors were coming out of the courthouse, the re was maybe two jurors that were still left that were com ing out of the door, and there was a man standing smoking, and as they were coming out he said “guilty,” “guilty,” “guilty.” I said to him, “you need to be quiet. You ca n go to jail for that.” He apologized, said he didn’t kno w. I said, “well you know now.” So he stopped and we continued on. N.T. Trial, 5/26/09, at 128. Moreover, with respect to the unidentified man’s statem ent, Deputy Schiavone testified that the jurors “didn’t even act li ke they heard anything. They were talking amongst each other, so I honestly can’ t say what they heard or they didn’t . . . [but t]hey didn’t look. They didn’t turn around. They didn’t react at all.” Id. at 132.J-S49004- 14

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Appellant moved for a mistrial. However, the trial court credited Deputy Schiavone’s testimony and denied Appellant’s r equest for a mistrial. It is clear that, had Appellant preserved any claim re lated to the trial court’s failure to grant a mistrial on direct appeal, that claim would have

failed. As we have held:

Granting a mistrial is an extreme remedy, and we def er to the trial court’s discretion on the matter. A trial co urt need only grant a mistrial where the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. Commonwealth v. King , 959 A.2d 405, 418 (Pa. Super. 2008) (internal quotations and citations omitted). In denying Appellant’s motion for a mistrial, the tri al court credited Deputy Schiavone’s testimony and concluded that the jury did not even hear the individual make the prejudicial remark. This fact ual finding is supported by the record. Therefore, in this case, Appellant’s counsel was not ineffective for failing to preserve the underlying cla im on direct appeal, as the underlying claim has no arguable merit. Appellant’s claim fails. We have independently conducted our own review of th is case and we agree with appointed counsel that the current appeal h as no merit. Thus, we grant counsel’s motion to withdraw and affirm the o rder d enying Appellant relief under the PCRA. Motion to withdraw as counsel granted. Order affirmed

.J-S49004- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2014