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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 order entered on 

July 13, 2012, dismissing his first petition filed under the Post-Conviction 

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Further, on appeal, 

Appellant’s court-appointed counsel has filed a petition for leave to withdraw 

as counsel. We grant counsel’s motion to withdraw and affirm 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 of this case. As the 

PCRA court explained: 

[During Appellant’s jury trial,] the following testimony was 

elicited[.] [The victim in this matter is named Alfredo 

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 Allentown, 

Pennsylvania,] to purchase marijuana from the victim. At 
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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 the 

premises. Upon leaving [the victim’s] apartment, 

[Appellant] showed [Mr. Avila] a handgun. Specifically, 

[Appellant] carried the gun in his waist band and pulled it 

out far enough for [Mr. Avila] to observe that it was a black 

revolver. [Appellant] expressed to [Mr. Avila] that he 

believed it to be a .45 caliber [handgun] and that he 

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 approximately 

the same time, Stephen Purdue, a witness residing [nearby] 

. . . 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 Street 

and quickly run down 13th Street. Then Mr. Purdue 

observed a second male [(who was later identified as 

Appellant)] approach the intersection of Wayne and 13th

Streets. According to the audiotape of Mr. Purdue’s 911 

telephone call, Mr. Purdue described this second individual 

as black and wearing dark clothing and a red cap. . . . 

Officer Michael Torres of the Allentown Police Department 

responded to [the shooting]. While he was approaching 

13th Street, he observed a vehicle proceeding northbound 

flashing its high beams. In full uniform and in a marked 

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 her 

roommate [and that she referred to him] as “Papa.” She 

indicated that she was present in the apartment with the 

victim and another friend (later identified as Darryl Peterson 

a/k/a “D Block”) who was a dark-skinned black or Hispanic 

male, wearing blue jean shorts, a blue and white shirt, 

[Nike] sneakers[,] and donning braids. [The victim] 
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received a telephone call from an unknown caller and 

stated, “My boy’s coming over.” Subsequently, [Appellant] 

arrived at [the victim’s] apartment and [the victim] let 

[Appellant into the apartment. The individuals] hung out in 

the living room area for a few minutes socializing. 

Thereafter, [the victim] went to the kitchen area where 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 where 

[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 shooter 

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 earlier 

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 kill 

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 homicide and 

informed him that the shooter was the person he had 

brought to [the victim’s] apartment to purchase drugs on 

June 15, 2007. Consequently, a photo array was compiled 

and shown to [Mr. Avila]. Upon positively identifying 

[Appellant], the [d]etectives presented the photo array to 

[Ms.] Guzman. [Ms.] Guzman pointed to [Appellant’s] 

photograph and indicated that he was the person who shot 
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[the victim]. Subsequent to this identification . . . , the 

photo array was presented to witness Juan Collazo, an 

individual who resided near the location of the incident and 

who saw a person fleeing from the subject residence after

the shooting []. [Mr. Collazo] identified [Appellant] 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] guilty 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 sentence [and, on October 17, 

2011, the Pennsylvania Supreme Court denied Appellant’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 petition. 

Appointed counsel then filed an amended PCRA petition] on 

May 31, 2012. . . . In [the PCRA petition, Appellant claimed 

that his trial counsel] rendered ineffective assistance [] by: 

(1) failing to adequate[ly] investigate and/or call Alan 

Jenkins and Carissa Clark to testify as alibi witnesses; (2) 

failing to adequately investigate exculpatory evidence 

regarding cell phone records of [the victim]; (3) failing 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 include 

in the [Rule] 1925(b) statement issues regarding trial court 

error in failing to grant a mistrial where improper influences 

occurred. . . . 

____________________________________________ 

1

 18 Pa.C.S.A. §§ 2502(a), 901(a), 3701(a), and 2705, respectively. 
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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] regularly to 

discuss the case and prepare for trial. In an effort to be 

thorough, Attorney Schular investigated all the witnesses 

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 investigated by 

a Lehigh County Public Defender investigator, as well as 

personally by Attorney Schular on the weekends. 

Police interviewed Alan Jenkins, a person that [Appellant] 

had identified as an alibi witness. Attorney Schular went 

through great lengths to locate Alan Jenkins to speak with 

him. Ultimately an address in Georgia was [discovered] for 

Alan Jenkins, and Attorney Schular served a subpoena on 

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 Jenkins was 

belligerent and [antagonistic] on the [telephone] with 

Attorney Schular, and clearly conveyed that he wanted no 

involvement in the case. Attorney Schular believed that 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 [Appellant] 

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. 

____________________________________________ 

2

 Unfortunately, the court reporter lost the tapes that contained the 

testimony from the June 6, 2012 PCRA hearing. Therefore, 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.
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However, Carissa Clark was subsequently interviewed by 

Detective Vazquez. [Carissa Clark told Detective Vazquez] 

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 this 

inconsistent testimony provided by Carissa Clark, Attorney 

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 Schular 

that she could only provide a general context of their typical 

evening routine, but [that she] did not have any specific 

recollection of the subject evening. Additionally, Attorney 

Schular noted that when Carissa Clark became upset, she 

developed an attitude that [Attorney Schular] felt would not 

be received well by the jury. Based on the foregoing, 

Attorney Schular believed that it would be a poor decision 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 determined 

that this number belonged to an individual named Lewis 

Brown who resided in Georgia. At the time of trial, during 

cross-examination, Attorney Schular extensively attacked

Detective Gress’s investigation into the cell phone records 

and specifically argued that the investigation was lacking 

concerning identifying the true identity of “Jeremy.”

During the trial, Officer Torres testified that Ms. Guzman 

stated that she had recognized [Appellant] because she had 

seen him three [] days prior to the murder []. This 

statement was not contained in Officer Torres’ police report. 

Nonetheless, Attorney Schular did not object to its 

admission. Indeed, Attorney Schular made the tactical 

decision not to object because she wanted other statements 

made by Ms. Guzman to be admitted, which dealt with her 

initial description of the perpetrator. Initially Ms. Guzman 

had described the shooter as having bushy hair and a bushy 

beard. This description was inconsistent with [Appellant’s] 

appearance and the other witnesses’ testimony, and 
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[Attorney Schular] believed that it was imperative to get 

this information before the jury for consideration. Also, 

Attorney Schular thoroughly cross-examined Officer Torres 

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 filed a 

[Pennsylvania Rule of Appellate Procedure 1925(b)] 

statement[,] which included numerous allegations of error 

committed by [the trial court], including [the trial court’s 

alleged] error in failing to grant a mistrial based on a “trial 

by transcript” and the length of the [jury] deliberations. 

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 which 

someone [said] “Guilty, guilty, guilty,” as the jurors were 

being escorted to their vehicles at the end of the evening. 

Attorney Schular included these ancillary issues in her brief 

only to provide the Superior Court [] with a complete 

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 strategy 

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, only 

two [] subsections were included in the [Rule] 1925(b) 

statement with regard to [the trial court’s] alleged failure to 

grant a mistrial. 

PCRA Court Opinion, 7/13/12, at 1-9 (internal footnotes 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 reviewing the record, 

however, PCRA counsel determined that the appeal had no merit. As a 

result, PCRA counsel notified Appellant that he intended 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 to 
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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 Court”). Appellant now 

raises the following claims on appeal: 

1. [Trial c]ounsel was ineffective for failing to adequately 

investigate and/or call to testify the alibi witnesses, Carissa 

Clark and Alan Jenkins[.] 

2. [Trial c]ounsel was ineffective for failing to adequately 

investigate exculpatory evidence regarding the cell phone 

records of [the victim.] 

3. [Trial c]ounsel was ineffective for failing to object to the 

hearsay testimony of Officer Torres regarding statements 

made by Ms. Guzman which were not contained in the 

police reports[.] 

4. [Trial c]ounsel was ineffective for failing to include issues 

regarding trial court error in 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.

Before reviewing the merits of this appeal, however, this Court must 

first determine whether counsel has fulfilled the necessary 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 representation 

must proceed . . . under [Turner/Finley. Under] 
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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 have 

reviewed, explaining why and how those issues lack merit, 

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 will 

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 requirements. 

We will, therefore, “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 evidence of 

record and is free of legal error. In evaluating a PCRA 

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 decision on 

any grounds if it is supported by the record. 
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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 petitioner must plead and 

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

resulted from “one or more” of the seven, specifically enumerated 

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily 

enumerated circumstances is the “[i]neffectiveness of counsel which, in the 

circumstances of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence 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 this 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, there is 

a reasonable probability that the outcome of the challenged 

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 require 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 a 
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potential for success substantially 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 ineffective for “failing to 

adequately investigate and/or call to testify the alibi witnesses, Carissa Clark 

and Alan Jenkins.” This claim is meritless.

 Our Supreme Court has explained: 

Generally, an alibi is a defense that places the defendant 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 core of an 

alibi defense is, of course, consistency between the date 

and time of the crime and that of the defendant’s alibi.

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 failing to 

call a witness, a [petitioner] must [plead and] prove, in 

addition to . . . the three [general ineffective assistance of 

counsel] requirements [listed above], that: (1) the witness 

existed; (2) the witness was available to testify for the 

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 “alibi” prior to trial and, 
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during the course of this investigation, Attorney Schular interviewed both 

Alan Jenkins and Carissa Clark. However, Attorney Schular testified that 

neither Alan Jenkins nor Carissa Clark were able to “place[ Appellant] at the 

relevant time in a different place than the scene involved.” Ali, 10 A.3d at 

316. Certainly, Attorney Schular testified that Alan Jenkins declared that “he 

hardly knew [Appellant] and knew nothing about th[e] incident” and that 

Carissa Clark declared that “she did not have a specific recollection of the 

subject evening” and that she could only testify as to “what 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 different place than the scene 

involved,” neither individual would have been able to provide Appellant with 

an alibi defense at trial. Appellant’s first claim on appeal is thus meritless. 

Next, Appellant claims that his trial counsel was ineffective “for failing 

to adequately investigate exculpatory evidence regarding the cell phone 

records of [the victim].” According to Appellant, had trial counsel 

investigated the victim’s cell phone, trial counsel would have learned “that a 

‘Luis Brown’ of Georgia had ‘direct connects’ with the victim around the time 

of the murder.” Appellant’s Brief at 4. 

The PCRA court explained why this issue is meritless: 

[Appellant’s] argument [on this issue] . . . is factually 

contradicted by the record. Attorney Schular investigated 

the cell phone records of [the victim] that were produced [] 

by the Commonwealth prior to trial. Attorney Schular was 
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aware of the fact that there was a direct connect at 9:36 

[p.m.] to the victim’s cell phone from a “Jeremy.” This 

information was consistent with the defense’s theory of the 

case. Additionally, Attorney Schular investigated this 

information and it was determined that the subscriber 

information belonged to a Lewis Brown from Georgia. 

Attorney Schular ran the criminal histories of “Lewis Brown” 

in Georgia, and she unfortunately determined that many of 

the individuals named Lewis Brown from Georgia were 

incarcerated at the time of the homicide. Also, at the 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 the 

true 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 evidence 

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 ineffective “for failing 

to object to the hearsay testimony of Officer Torres regarding statements 

made by Ms. Guzman which were not contained in the police reports.” 

Appellant’s Brief at 2. Again, the PCRA court has thoroughly explained why 

this claim lacks merit: 

During the trial, Officer Torres testified that Ms. Guzman 

stated that she had recognized [Appellant] because she had 

seen him three [] days prior to the murder []. This 

statement was not contained in Officer Torres’ police report. 

Nonetheless, Attorney Schular did not object to its 

admission. Indeed, Attorney Schular made the tactical 

decision not to object because she wanted other statements 

made by Ms. Guzman to be admitted, which dealt with her 

initial description of the perpetrator. Initially Ms. Guzman 
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had described the shooter as having bushy hair and a bushy 

beard. This description was inconsistent with [Appellant’s] 

appearance and the other 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 Torres 

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] that 

[] Attorney Schular’s aforementioned actions and/or 

inactions were reasonably based and supported her client’s 

defense. 

PCRA Court Opinion, 7/13/12, at 12-13.

The PCRA court thus concluded that Attorney Schular’s failure to object 

to Officer Torres’ hearsay testimony was a valid, reasonable trial strategy 

and that Appellant was not able to prove that an alternative strategy 

“offered a potential for success substantially greater than the course actually 

pursued.” Cox, 983 A.2d at 678. The PCRA court’s factual determination 

was supported by the evidence and does not constitute an abuse of 

discretion. Thus, Appellant’s claim fails.

Finally, Appellant claims that Attorney Schular was ineffective for 

“failing to include issues regarding trial court error in 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” occurred: when, at 

the jury’s request, portions of the trial testimony were re-read to the jury 

during deliberations and when some unidentified individual declared “guilty, 

guilty, guilty” in the presence of some of the jurors. 
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Appellant’s ineffective assistance of counsel claim fails because the 

underlying claims have no merit. With respect to the re-reading of 

testimony, we have held: “[w]hen a jury requests that recorded testimony 

be read to it to refresh its memory, it rests within the trial court's discretion 

to grant or deny such request . . . so long as there is not a flagrant abuse of 

discretion, this decision should not be overturned on appeal.” 

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 explained:

While it is true that the jury requested a great deal of 

testimony [be] read back to them during their deliberations, 

the questions and testimony that the members of the jury 

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 deliberations. To be sure, 

Appellant’s trial occurred over 12 days and, during this time, the

Commonwealth called 14 witnesses. Further, the charges against 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 err when it refused to grant 

a mistrial based upon the re-reading of the trial testimony and this Court 
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would not have granted Appellant relief on this claim on direct appeal. 

Therefore, to the extent Appellant’s ineffective assistance of counsel 

challenge is based upon this underlying claim, the challenge fails. 

Appellant also claims that his counsel was ineffective for failing to 

preserve, on direct review, the claim that the trial court erred in failing to 

grant a mistrial when some unidentified individual said “guilty, guilty, guilty” 

in the presence of the jurors. The underlying claim is meritless. 

On May 26, 2009, in the midst of Appellant’s trial, the trial court held a 

hearing on an event that occurred outside of court. During this hearing, the 

trial court heard testimony from Deputy Sheriff Sue Schiavone. Deputy 

Schiavone testified: 

When the jurors were coming out of the courthouse, there 

was maybe two jurors that were still left that were coming 

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 can go 

to jail for that.” He apologized, said he didn’t know. 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 statement, Deputy 

Schiavone testified that the jurors “didn’t even act like 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. 
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Appellant moved for a mistrial. However, the trial court credited 

Deputy Schiavone’s testimony and denied Appellant’s request for a mistrial. 

It is clear that, had Appellant preserved any claim related 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 defer to 

the trial court’s discretion on the matter. A trial court 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 trial court credited 

Deputy Schiavone’s testimony and concluded that the jury did not even hear 

the individual make the prejudicial remark. This factual finding is supported 

by the record. Therefore, in this case, Appellant’s counsel was not 

ineffective for failing to preserve the underlying claim on direct appeal, as 

the underlying claim has no arguable merit. Appellant’s claim fails.

We have independently conducted our own review of this case and we 

agree with appointed counsel that the current appeal has no merit. Thus, 

we grant counsel’s motion to withdraw and affirm the order denying 

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