J-S11024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ARMEL J. BAXTER

Appellant No. 1277 EDA 2015

Appeal from the PCRA Order March 4, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013121-2007

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 17, 2016

Armel J. Baxter appeals the order entered March 4, 2015, in the 

Philadelphia County Court of Common Pleas, dismissing his first petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et 

seq. Baxter seeks relief from the judgment of sentence of life imprisonment 

imposed on February 5, 2009, after a jury found him guilty of first-degree 

murder, criminal conspiracy, and possession of an instrument of crime 

(“PIC”).1 On appeal, he raises multiple ineffective assistance of counsel 

claims. For the reasons that follow, we affirm.

____________________________________________

1 18 Pa.C.S. §§ 2502(a), 903(a)(1), and 907(a), respectively.
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The facts underlying Baxter’s convictions were recited, as follows, in 

the decision by this Court affirming his judgment of sentence on direct 

appeal:

On April 21, 2007, approximately twenty (20) to fifty (50) 

people were in the Kenderton Elementary playground. Demond 

Brown (decedent/victim, also identified on the record as 

“Demond”) had recently finished a game of basketball and was 

standing on the sideline. The decedent’s cousin, Anthony Harris 

(also identified on the record as “Tony”), and best friend, Hassan 

Durant, were standing on the basketball court.

[Baxter]1and Jeffrey McBride2 were in the backseat of their 

friend Rachel Marcelis’ car, driving to their friend Daryl Mack’s 

(also identified on the record as “Mack”) aunt’s house. Either, 

[Baxter] or McBride said they saw someone on the playground 

and told Rachel Marcelis to go back so they could be sure. 

Rachel Marcelis drove around the block, and [Baxter] and 

McBride exited the car.

____________________

1

“[Baxter]” also identified on the record as “Snubbs” and 

“Jay-Jay[.]”

2

“McBride”, also identified on the record as “Fraddo” and 

“Fra[.]”

____________________

Anthony Harris and Hassan Durant saw [Baxter] and McBride 

enter the playground with “hoodies”3on. People on the 

playground noticed [Baxter] and McBride because both men 

were wearing hoodies on a very hot day. The decedent turned 

around, noticed [Baxter] and McBride, and began to run. 

[Baxter] and McBride began shooting, and continued to shoot as 

they walked together side by side. The decedent ran in a 

“zigzag” pattern toward the 15th Street exit. The decedent 

stumbled out of the playground and fell in the middle of the 

street.

____________________

3 A “hoodie” is a long sleeved sweatshirt with a hood. 

____________________
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[Baxter] and McBride ran out of the playground, and headed 

east on Ontario Street, then south on 15th Street. Rachel 

Marcelis saw [Baxter] and McBride running in her direction, and 

let them back in her car. While in the car, Rachel Marcelis heard 

[Baxter] and McBride talking about how McBride’s gun did not 

work and he could “not get any rounds off”. When they arrived 

at Daryl Mack’s aunt’s house, Rachel Marcelis asked McBride “if 

that was the person who shot De-Nyce.” McBride answered 

“Yes”. After they left the house, Rachel Marcelis, [Baxter] and 

McBride drove to Wilkes-Barre for the weekend, but only Rachel 

Marcelis returned the following Monday.

An arrest warrant was issued for both [Baxter] and McBride 

on May 4, 2007. McBride was arrested in Wilkes-Barre on May 

7, 2007, after police were informed of his outstanding warrant. 

[Baxter] was found at a motel in Wilkes-Barre on July 10, 2007, 

after the police received a call regarding a domestic violence 

issue. [Baxter] was initially arrested for false identification, after 

he gave officers three false names. He was subsequently 

arrested [i]n this case after further investigation by law 

enforcement.

Commonwealth v. Baxter, 996 A.2d 535 [437 EDA 2009] (Pa. Super. 

2010) (unpublished memorandum at 1-2) (footnote omitted), quoting Trial 

Court Opinion, 7/8/2009, at 2-3 (citations omitted). 

Baxter’s case proceeded to a jury trial on January 29, 2009.2 As noted 

above, on February 5, 2009, the jury convicted him of first-degree murder, 

criminal conspiracy, and PIC. On that same day, the court sentenced Baxter 

to life imprisonment, without the possibility of parole, for the murder 

conviction, with concurrent sentences of ten to 20 years’ imprisonment for 

the conspiracy charge and one to two years’ incarceration for the PIC crime. 

____________________________________________

2

 Baxter and McBride were tried together. 
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On March 3, 2010, we affirmed his judgment of sentence, and the 

Pennsylvania Supreme Court denied his petition for allowance of appeal on 

February 23, 2011. See id., appeal denied, 17 A.3d 1250 (Pa. 2011).3

On September 23, 2011, Baxter filed a pro se PCRA petition.4 

On November 2, 2012, Gary Server, Esquire[,] was appointed to 

represent [Baxter]. On September 24, 2013, Mr. Server filed an 

amended petition, raising various issues [Baxter] identified in his 

pro se filings. On November 13, 2013, [Baxter] filed a motion to 

proceed pro se. On June 9, 2014, after [Baxter] declined to 

participate in a video conference, he was transported from SCI 

Coal Township for a Grazier[5] hearing. At the conclusion of the 

hearing, this Court held that [Baxter]’s waiver of counsel was 

knowing, intelligent, and voluntary, permitted [Baxter] to 

represent himself, and appointed an investigator to assist him. 

On October 27, 2014, Craig Cooley, Esquire[,] entered his 

appearance as counsel for [Baxter].

PCRA Court Opinion, 3/4/5015, at 1-2.

An evidentiary hearing was held on January 20, 2015. The PCRA court 

limited the hearing to the following issues:

- Trial counsel’s ineffectiveness for failure to cross-examine a 

witness as to her immunity petition; and

- Trial counsel’s ineffectiveness for failure to examine Gregory 

Blackmon, Stefon Studivent, Kyle Carter, Darryl Mack, and 

Deborah McBride.

____________________________________________

3

 Mark Greenberg, Esquire, represented Baxter at trial and on direct appeal. 

We note McBride also filed a direct appeal, which was docketed at 440 EDA 

2009.

4

 Baxter also filed supplemental petitions on March 8, 2012, September 8, 

2014, and September 16, 2014.

5

 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Order, 11/21/2014. On March 4, 2015, the PCRA court entered an order 

and opinion, dismissing Baxter’s petition. This appeal followed.6

Baxter raises the following issues on appeal:

1. The PCRA court erred because the record contained sufficient 

evidence to find Mark Greenb[e]rg made several objectively 

unreasonable decisions that individually and collectively 

undermine confidence in Armel Baxter’s convictions 

warranting a new trial. U.S. Const. amends. V, VI, VIII, XIV; 

Pa. Const. art. §§ 8, 9, 23.[7]

a. Mark Greenb[e]rg’s decision not [to] exercise Armel 

Baxter’s compulsory process right, by not requesting 

bench warrants for two subpoenaed witnesses – Kyle 

Carter and Gregory Blackmon – was objectively 

unreasonable and prejudiced Baxter because Carter and 

Blackmon were both fact witnesses whose testimony 

would have undermined Anthony Harris’s and Hassan 

Durant’s identifications.

b. Mark Greenb[e]rg’s decision not to subpoena Stephon 

Studivant and present him at trial was objectively 

unreasonable and prejudiced Armel Baxter because 

Studivant was a fact witness whose testimony 

significantly undermined Anthony Harris’s and Hassan 

Durant’s identifications.

c. Mark Greenb[e]rg’s decisions not to present Darryl 

Mack and to cross-examine Rachel Marcelis with her 

Cordell Young trial testimony and immunity agreements 

with the Commonwealth were objectively unreasonable 

____________________________________________

6

 The court did not order Baxter to file a concise statement of errors 

complained of on appeal under Pa.R.A.P. 1925(b).

7

 With respect to the first issue, we note Baxter focuses on the legal 

standard regarding ineffectiveness of counsel and certain duties of counsel, 

rather than specific incidences of counsel’s ineffectiveness. See Baxter’s 

Brief at 35-37. Therefore, our analysis will begin with the first sub-issue.
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and prejudiced Armel Baxter because they would have 

individually and cumulatively undermined Marcelis’s 

testimony. The absence of Mack’s testimony, Marcelis’s 

testimony at Cordell Young’s trial, and her immunity 

agreements with the Commonwealth undermines 

confidence in Baxter’s convictions warranting a new 

trial.

d. Mark Greenb[e]rg’s cumulative errors undermine 

confidence in Armel Baxter’s conviction warranting a 

new trial where Baxter can introduce the exculpatory 

and impeachment evidence not presented by 

Greenb[e]rg.

2. Mark Greenb[e]rg violated Armel Baxter’s right to counsel by 

being “totally absent” when the trial court addressed the jury 

and answered its three questions and by sending an 

inexperienced attorney who had no criminal defense 

experience and knew nothing about the case or Baxter’s 

defense. The court should presume prejudice under these 

circumstances and grant a new trial. U.S. Const. amends. V, 

VI, VIII, XIV; Pa. Const. art. §§ 8, 9, 23.

Baxter’s Brief at 35, 37, 50, 54, 63, and 64 (some capitalization removed).

Our standard and scope of review for the denial of a PCRA petition is 

well-settled:

[A]n appellate court reviews the PCRA court’s findings of fact to 

determine whether they are supported by the record, and 

reviews its conclusions of law to determine whether they are free 

from legal error. The 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.

Commonwealth v. Charleston, 94 A.3d 1012, 1018-1019 (Pa. Super. 

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

To be eligible for PCRA relief, [the a]ppellant must prove by a 

preponderance of the evidence that his conviction or sentence 

resulted from one or more of the enumerated circumstances 

found at 42 Pa.C.S. § 9543(a)(2) (listing, inter alia, the 
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ineffective assistance of counsel and the unavailability at the 

time of trial of exculpatory evidence, which would have changed 

the outcome of the trial had it been introduced). 

Commonwealth v. Koehler, 36 A.3d 121, 131-132 (Pa. 2012).

In Baxter’s first sub-issue, he contends counsel was ineffective for 

failing to exercise Baxter’s compulsory process right pursuant to the 6th

Amendment of the United States Constitution and Article 1, Section 9 of the 

Pennsylvania Constitution by not requesting that bench warrants be issued 

for two subpoenaed witnesses, Carter and Blackmon, who did not appear at 

trial. Baxter’s Brief at 37. Baxter argues, “If subpoenaed witnesses fail to 

appear for whatever the reason, e.g., bad weather, trial counsel must 

exercise his client’s compulsory process rights and request the trial court’s 

assistance by asking it to issue bench warrants to compel and produce these 

favorable witnesses.” Id. at 37.8 Baxter states Greenberg’s actions were 

____________________________________________

8

 He further explains:

Michael Wallace[, co-defendant’s counsel,] subpoenaed Carter 

and Blackmon, and Greenb[e]rg piggybacked off Wallace’s 

subpoena. Carter spoke with Greenb[e]rg the first day he went 

to court, while Blackmon signed a written statement saying the 

gunmen were 6’2” or taller. Thus, by subpoenaing both and 

speaking with Carter at trial, Greenb[e]rg knew or should have 

known the substance and significance of their testimony and how 

it undermined Harris’s and Durant’s identifications. Carter and 

Blackmon were both at court multiple days waiting to testify on 

Baxter’s behalf. Unfortunately, due to bad weather on February 

4, 2009, they incorrectly assumed the courthouse was closed.

(Footnote Continued Next Page)
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unreasonable based on the following: (1) counsel never made a proffer to 

the court explaining the substance and significance of Carter’s and 

Blackmon’s testimony, which would have undermined the identifications 

made by Harris and Durant as well as Marcelis’ testimony; (2) if counsel had 

made an on-the-record request and objection after the court denied the 

request, he would have preserved the issue for appellate review, but by not 

doing so, he waived the issue; and (3) Baxter suffered great harm because 

counsel made certain the jury would not hear the relevant and exculpatory 

testimony of Carter and Blackmon. Id. at 39-40. Furthermore, he states:

To be clear, because Baxter is arguing Greenb[e]rg erred 

by not raising and preserving this issue for direct appeal, the 

Court’s prejudice analysis must focus on how this Court would 

have adjudicated this issue on direct appeal – not postconviction. The distinction is significant in terms of prejudice. 

Had Greenb[e]rg properly preserved this issue for direct appeal, 

all Baxter would have had to demonstrate is that Carter’s and 

(Footnote Continued) _______________________

Wallace requested a continuance to contact Carter and 

Blackmon, but he [n]ever made a proffer to the trial court 

explaining the significance of their proposed testimony and how 

it undermined the Commonwealth’s identification evidence, so 

the trial court denied his request. Greenb[e]rg, on the other 

hand, as this Court pointed out on direct appeal, never 

requested a continuance. More importantly, Greenb[e]rg never 

exercised Baxter’s compulsory process rights by requesting the 

trial court to issue bench warrants for Carter and Blackm[o]n. 

At the PCRA hearing, Greenb[e]rg and Wallace both said they 

never requested bench warrants because, if the trial court 

denied Wallace’s continuance request, they assumed it would 

have denied bench warrant requests. 

Id. at 39. 
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Blackmon’s proposed testimony was both relevant and favorable 

to his defense. 

Id. at 41 (italics in original).

Lastly, with respect to this claim, Baxter asserts the PCRA court made 

the following errors: (1) it erroneously stated Baxter presented this claim 

on direct appeal and a panel of this Court determined it was “meritless;” (2) 

by finding the panel previously adjudicated this claim, the PCRA court 

misconstrued the substance of his claim and incorrectly analyzed it as a 

failure to call a witness claim instead of a compulsory process issue; and (3) 

the court improperly found the testimony of Harris and Durant was credible 

merely because both men knew Baxter and “the jury ‘credited’ their 

testimony.” Id. at 42.

We begin with the following:

In evaluating claims of ineffective assistance of counsel, we 

presume that counsel is effective. Commonwealth v. Rollins, 

558 Pa. 532, 738 A.2d 435, 441 (Pa. 1999). To overcome this 

presumption, Appellant must establish three factors. First, that 

the underlying claim has arguable merit. See Commonwealth 

v. Travaglia, 541 Pa. 108, 661 A.2d 352, 356 (Pa. 1995). 

Second, that counsel had no reasonable basis for his action or 

inaction. Id. In determining whether counsel’s action was 

reasonable, we do not question whether there were other more 

logical courses of action which counsel could have pursued; 

rather, we must examine whether counsel’s decisions had any 

reasonable basis. See Rollins, 738 A.2d at 441; 

Commonwealth v. (Charles) Pierce, 515 Pa. 153, 527 A.2d 

973, 975 (Pa. 1987). Finally, “Appellant must establish that he 

has been prejudiced by counsel’s ineffectiveness; in order to 

meet this burden, he must show that ‘but for the act or omission 

in question, the outcome of the proceedings would have been 

different.’” See Rollins, 738 A.2d at 441 (quoting Travaglia, 

661 A.2d at 357). A claim of ineffectiveness may be denied by a 
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showing that the petitioner’s evidence fails to meet any of these 

prongs. Commonwealth v. (Michael) Pierce, 567 Pa. 186, 

786 A.2d 203, 221-22 (Pa. 2001); Commonwealth v. 

Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (Pa. 2000); 

Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 

(Pa. 1998) (“If it is clear that Appellant has not demonstrated 

that counsel’s act or omission adversely affected the outcome of 

the proceedings, the claim may be dismissed on that basis alone 

and the court need not first determine whether the first and 

second prongs have been met.”). In the context of a PCRA 

proceeding, Appellant must establish that the ineffective 

assistance of counsel was of the type “which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt [or] 

innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). 

See also (Michael) Pierce, 786 A.2d at 221-22; 

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 

(Pa. 1999).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

The Sixth Amendment of the United States Constitution provides, “In 

all criminal prosecutions, the accused shall enjoy the right ... to have the 

assistance of counsel for his defence.” U.S.Const. amend. VI. Likewise, 

Article 1, Section 9 of the Pennsylvania Constitution states, “In all criminal 

prosecutions the accused hath a right to be heard by himself and his counsel 

....” Pa.Const. art. I, § 9. 

“It is clear that under both our state and federal constitutions, a 

criminal defendant has a right of compulsory process to obtain 

witnesses in his favor.” Commonwealth v. Lahoud, 339 

Pa.Super. 59, 64, 488 A.2d 307, 310 (1985) (allocatur denied), 

quoting Commonwealth v. Allen, 501 Pa. 525, 531, 462 A.2d 

624, 627 (1983). “The right to compulsory process encompasses 

the right to meet the prosecution’s case with the aid of 

witnesses, and the right to elicit the aid of the Commonwealth in 

securing those witnesses at trial, both of which are fundamental 

to a fair trial.” Commonwealth v. Jackson, 457 Pa. 237, 243, 

324 A.2d 350, 354-355 (1974); Commonwealth v. Lahoud, 
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supra. “Just as an accused has the right to confront the 

prosecution’s witnesses for the purpose of challenging their 

testimony, he has the right to present his own witnesses to 

establish a defense. This right is a fundamental element of due 

process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 

S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967). “[The] 

constitutional right, though fundamental, is not, however, 

absolute.” Commonwealth v. Jackson, supra 457 Pa. at 243, 

324 A.2d at 355. In order to compel the attendance of a witness 

at trial, it must be shown that the information possessed by the 

witness is material, i.e., capable of affecting the outcome of the 

trial, and that it is favorable to the defense. United States v. 

Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 

1193 (1982).

Commonwealth v. McKenzie, 581 A.2d 655, 657 (Pa. Super. 1990).

Even though case law is very limited on this subject, in 

Commonwealth v. Twiggs, 331 A.2d 440 (Pa. 1975), the Pennsylvania 

Supreme Court considered a substantially similar issue:

In determining whether counsel’s failure to secure the 

attendance of the witness or to have the notes of his previous 

testimony read to the jury constituted constitutionally ineffective

assistance of counsel, we are guided by the standards 

established in Commonwealth ex rel. Washington v. 

Maroney, 427 Pa. 599, 235 A.2d 349 (1967). There we held 

that

“counsel’s assistance is deemed constitutionally effective 

once we are able to conclude that the particular course 

chosen by counsel had some reasonable basis designed to 

effectuate his client’s interests. The test is not whether 

other alternatives were more reasonable, employing a 

hindsight evaluation of the record. Although weigh the 

alternatives we must, the balance tips in favor of a finding 

of effective assistance as soon as it is determined that trial 

counsel’s decision had any reasonable basis.”

Id. at 604, 235 A.2d at 352.
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If counsel’s decision not to secure [the witness]’s appearance or 

to have the notes of [the witness]’s previous testimony read to 

the jury was based on a reassessment of its worth and a 

conclusion that it was of little or no value in the posture of this 

case, then that decision clearly had some reasonable basis 

designed to effectuate [the appellant]’s interests. In such 

circumstances, counsel’s conduct would not constitute 

ineffectiveness. See Commonwealth ex rel. Washington v. 

Maroney, supra. Had counsel reached this decision on a basis 

designed to advance his client’s interest, this case would be 

analogous to those situations in which, as a matter of trial 

strategy, counsel decides not to call a witness at all. See 

Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); 

Commonwealth v. Owens, 454 Pa. 268, 275, 312 A.2d 378, 

382 (1973); Commonwealth v. Karchella, 449 Pa. 270, 296 

A.2d 732 (1972); Commonwealth v. Ellis, 445 Pa. 307, 284 

A.2d 735 (1971); Commonwealth v. Hawkins, 445 Pa. 282, 

284 A.2d 730 (1971).

If, however, counsel’s failure to seek compulsory process to 

obtain [the witness]’s testimony or to have his prior testimony 

read to the jury was the result of sloth or lack of awareness of 

the available alternatives, then his assistance was ineffective. In 

a case where virtually the only issue is the credibility of the 

Commonwealth’s witness versus that of the defendant, failure to 

explore all alternatives available to assure that the jury heard 

the testimony of a known witness who might be capable of 

casting a shadow upon the Commonwealth’s witness’s 

truthfulness is ineffective assistance of counsel.

Twiggs, 331 A.2d at 442-443.

A review of the record reveals the following. Counsel for McBride, 

Michael Wallace, Esquire, subpoenaed both Carter and Blackmon to testify at 

both defendants’ trial. On February 4, 2009, during the defense’s case-inchief, Wallace asked for a brief continuance to determine which witnesses 

were there. When he learned Carter and Blackmon were not in the 

courthouse, he then called them to determine their whereabouts. Wallace 
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stated Carter and Blackmon had been at the trial, and assured him they 

would be there. He told the trial court that he assumed their absence was 

based on the weather conditions. He attempted to ask for a continuance, 

but the court interrupted him, stating there was no problem with public 

transportation and there was no line outside the courthouse. Wallace then 

asked for time to make additional phone calls, which the trial court granted. 

See N.T., 1/20/2015, at 198-204.

At the January 20, 2015, PCRA evidentiary hearing, Wallace testified 

he did not obtain a bench warrant for the two men based on the following: 

“[B]ecause the judge immediately said no, we’re moving forward, so it would 

have been a waste of time, because if [the judge] wasn’t going to give me 

an opportunity to go back and try and get them, she wasn’t going to give me 

an opportunity to sit around and wait two days for a bench warrant.” Id. at 

209. Wallace indicated he did object “to the fact that [the judge] told me to 

go right on. I think the words are in the record, you’re taking my client’s 

defense away from me, my defense, whatever I said.” Id. 

Greenberg also testified at the PCRA evidentiary hearing. He indicated 

he worked jointly with Wallace “to get the witnesses in court” and 

“coordinated subpoenaing these witnesses.” Id. at 213, 241-242. 

Greenberg stated, “The judge allowed me to follow Mr. Wallace’s lead when 

it came to subpoena so we did not have to duplicate the process.” Id. at 

213. Greenberg further testified the defense at trial was mistaken 
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identification and hypothesized potential concerns with presenting Carter 

and Blackmon as defense witnesses. Id. at 244-245. He noted they were 

good friends of Baxter’s and based on his experience with juries, “if the 

witness is a good friend, he or she has more of a bias than a total stranger.” 

Id. at 245. Additionally, he stated that a witness could be impeached by his 

or her criminal record but he could not remember if Carter or Blackmon had 

criminal records. Id. Third, Greenberg testified, “[P]eople see different 

things from different perspectives. Whether or not a hoody would have 

covered the face of a witness from one perspective doesn’t mean it would 

have covered the face of a witness from a different vantage point.” Id. 

Lastly, Carter and Blackmon both testified at the PCRA hearing. The 

court summarized their testimony as follows:

Blackmon testified that he was at the basketball game 

where the shooting occurred, and that prior to the shooting he 

saw two tall, slender men in hooded sweatshirts approach the 

game. He said that he could not see their faces because the 

hoods obscured them. Blackmon asserted that he would have 

testified to these facts and that he appeared at trial. However, 

when asked why he did not testify, he initially explained that one 

of the attorneys said that he did not need Blackmon to testify. 

Later, Blackmon contradicted this testimony by stating that he 

did not appear for court because of the weather.

Carter testified that he, too, was at the basketball game on 

the day of the shooting, and saw the hooded shooters but did 

not witness the actual shooting. Carter described the shooters 

as taller than himself but stated that he could not see their faces 

because of their hoods. Carter was inconsistent within his 

testimony regarding where he was located when the shooting 

began. During his testimony he stated he was in three different 

locations: just off the basketball court, sitting on a car, and 

running to get under a car. He was impeached with his affidavit 
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from October 14, 2013, in which he said he was running at the 

time of the shooting, which he admitted was wrong. Carter was 

also inconsistent regarding the reason he did not testify at trial. 

Carter said that he was present at the trial but did not testify 

because “[m]y services weren’t needed.” Carter did not mention 

anything regarding a snow storm or courts being closed until 

prompted by the District Attorney, after which he indicated he 

believed that court was cancelled. 

PCRA Court Opinion, 3/4/2015, at 5 (record citations omitted).

With respect to this claim, the PCRA court noted the following:

2

 Carter and Blackmon were subpoenaed by McBride’s 

attorney, Michael Wallace, Esquire. However, it is clear 

from the record at trial that there was communication and 

cooperation between Mr. Greenberg and Mr. Wallace with 

regards to locating witnesses.

3

 This Court notes that [Baxter]’s argument that trial 

counsel should have made a proffer to the trial court as to 

the testimony of Blackmon and Carter and pursued bench 

warrants was found to be meritless by [the] Superior 

Court. On appeal, [Baxter] argued that the court erred 

and abused its discretion in denying a continuance to the 

defense on February 4, 2009 for these witnesses. 

Although the Superior Court found that the claim was 

waived, it also found it to be meritless based on the fact 

that there were no guarantees that the witnesses would 

have shown up, should the trial have been continued. 

Id. at 6, 7.

In dismissing the claim, the PCRA court found Baxter had “failed to 

establish that the witnesses were willing and able to cooperate on behalf of 
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[Baxter] and that proposed testimony was necessary to avoid prejudice.” 

Id. at 5.9 Specifically, the court determined:

[Baxter] has also failed to establish that the proposed 

testimony of Carter, Blackmon, and Studivant was necessary to 

avoid prejudice as the testimony does not discredit the 

persuasive testimony provided at trial by Anthony Harris and 

Hassan Durant. On the day of the shooting, Durant was at the 

park when he noticed [Baxter] and McBride. Durant immediately 

paid attention to [Baxter] and McBride when they arrived at the 

park because it was a hot day and Durant thought it was odd 

that they were wearing hoodies. Durant was about twenty feet 

from the shooters when they shot Brown and “[he] seen [sic] it 

perfect.” Durant identified [Baxter] and McBride at trial and 

indicated that [he] had seen [Baxter] around the neighborhood 

for about a year before the shooting. Durant explained that 

although the shooters had hoods on, he could see their faces.

Harris was also present in the park for the shooting. 

Harris saw [Baxter] and McBride before they entered the park 

and they put their hoods up. Harris saw [Baxter] pull out a gun 

and shoot Brown. Harris identified [Baxter] as the shooter and 

explained that Harris had known [Baxter] for over twenty years 

as he lived three doors down from him. Harris explained that 

even when [Baxter] and McBride had their hoods up, Harris 

could see their faces.

Harris and Durant’s testimony was credited by the jury, 

and is not rendered vulnerable by the after-the-fact testimony of 

Carter, Blackmon, and Studivant. Carter, Blackmon, and 

Studivant stated that they could not see the shooters’ faces 

because of their hoods, a claim that was implausible. The 

shooting took place during the daytime in front of a crowd; in 

those conditions, it is not plausible that a hood would completely 

obscure a person’s face. Further, neither Carter, Blackmon, nor

Studivant knew [Baxter] prior to the shooting whereas both 

____________________________________________

9

 We note the PCRA court also discusses another witness’s, Studivant, 

testimony in conjunction with its analysis of Carter and Blackmon. Baxter’s 

second argument concerns Studivant. Therefore, for ease of discussion, we 

have included the court’s findings regarding Studivant as well.
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Harris and Durant were well acquainted with [Baxter]. Carter, 

Blackmon, and Studivant’s incredible and vague assertion that ... 

the shooters were taller than [Baxter], a man they did not know, 

would not have swayed the jury to discredit Harris and Durant’s 

testimony that Durant saw his neighborhood acquaintance and 

Harris saw his neighbor of over twenty years shoot Brown in 

broad daylight. [Baxter]’s claim that trial counsel was ineffective 

for failing to present testimony from Carter, Blackmon, and 

Studivant is meritless.

Id. at 7-8 (record citations omitted).

Although we agree with the court’s ultimate determination, we do so 

pursuant to alternative basis.10 In applying the ineffective assistance of 

counsel standard, we find there was arguable merit to Baxter’s claim. See 

Washington, supra. Counsel should have requested a bench warrant, as 

opposed to a continuance, because Carter and Blackmon were subpoenaed. 

Moreover, because the witnesses’ testimony would have directly contradicted 

the testimony of the two primary Commonwealth witnesses, there was a 

factual issue regarding identification that would have been for the jury to 

resolve.

____________________________________________

10

 “This Court is not bound by the rationale of the trial court, and we may 

affirm the trial court on any basis.” Commonwealth v. Williams, 73 A.3d 

609, 617 n.4 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d 

320 (Pa. 2014).

Here, the PCRA court largely dismissed the claim based on credibility 

determinations concerning the trial witnesses. In accordance with Twiggs, 

this type of determination would not overcome the ineffectiveness hurdle. 

Twiggs, 331 A.2d at 443. The court incorrectly assumes the jury would find 

Carter and Blackmon’s testimony incredible.
J-S11024-16

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Nevertheless, we are compelled to conclude trial counsel pursued a 

reasonable trial strategy with respect Carter and Blackmon based on the 

circumstances of the case. We note Greenberg worked jointly with Wallace 

and therefore, Wallace’s actions with respect to procuring the witnesses 

should be applied to Greenberg. Wallace subpoenaed Carter and Blackmon. 

Both men stated they were at trial on the days leading up to the date they 

were supposed to testify. Therefore, both Greenberg and Wallace would 

have no reason to believe that the two witnesses would not show up on the 

designated day. Furthermore, Wallace did ask for time to call the missing 

witnesses and ascertain their whereabouts. When he attempted to ask for a 

continuance after failing to find them, the court denied his request. 

Therefore, both counsels were correct to infer that the court would not grant 

them even more additional time to procure a bench warrant and that such 

an attempt would be futile.11

Counsel’s strategy is further supported by the fact that on direct 

appeal, a panel of this Court determined the trial court did not abuse its 

____________________________________________

11

 It merits mention that Wallace even objected to the court’s denial of his 

request for a continuance, asserting the court denied Baxter’s co-defendant 

a defense. Furthermore, the PCRA court noted: “The bench warrant is not 

meaningless. The bench warrant could have been issued and each of the 

potential witnesses could have been held in contempt, but it would not have 

helped the defense in this case when the [trial] judge said she’s not granting 

a continuance for the witnesses to be located and brought in.” N.T., 

1/20/2015, at 256.
J-S11024-16

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discretion in denying the attempted request for a continuance.12 Baxter, 

996 A.2d 535 [437 EDA 2009] (Pa. Super. 2010) (unpublished memorandum 

at 13). Specifically, the panel opined:

After a review of the record, it is clear that the trial court did not 

abuse its discretion in refusing to grant a continuance. Although 

the weather conditions were poor, court was in session, the 

weather did not prevent the jury or the other witnesses from 

appearing, and public transportation was still operational. N.T., 

2/4/09, at 24. Also, the potential witnesses did not 

communicate with [Baxter] or his counsel as to their absence. 

Id. [Baxter] hired a private detective to locate one of the 

witnesses and was unable to locate him. Id. at 18-19. No 

information was presented to the trial court that the witnesses 

would appear if a continuance was granted. As the court had no 

basis to believe that any further delay would have produced 

these witnesses, the trial court did not abuse its discretion in 

refusing to grant a continuance.

Id. at 14-15.

Because the trial court was so decisive in its decision to move the case 

forward and the panel determined the trial court did not abuse its discretion 

with regard to this action, we cannot conclude Baxter’s counsel was 

ineffective for failing to also pursue a bench warrant as it would have been 

considered a non-meritorious or frivolous claim. See Commonwealth v. 

____________________________________________

12

 We acknowledge the panel primarily found Baxter waived the issue 

because he, himself, did not request a continuance or object to the court’s 

decision not to grant a continuance. Baxter, 996 A.2d 535 [437 EDA 2009] 

(Pa. Super. 2010) (unpublished memorandum at 13), citing

Commonwealth v. Cannady, 590 A.2d 356, 362 (Pa. Super. 1991)

(holding where the defendant did not object, and he did not join in his codefendant’s objection, the issue was waived as to the defendant for 

purposes of appeal, even if the objection was identical to claim raised on 

appeal), appeal denied, 600 A.2d 950 (Pa. 1991).
J-S11024-16

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Fears, 86 A.3d 795, 803 (Pa. 2014) (holding counsel cannot be deemed 

ineffective for failing to raise a meritless claim). Furthermore, we cannot 

find Baxter’s counsel failure to seek compulsory process with respect to 

Carter and Blackmon was “the result of sloth or lack of awareness of the 

available alternatives[.]” Twiggs, 331 A.2d at 443. Accordingly, Baxter 

failed to satisfy the reasonable trial strategy prong of the ineffective 

assistance of counsel test. See Washington, 927 A.2d at 594. Therefore, 

we reject Baxter’s first sub-claim of PCRA court error.

Next, Baxter argues counsel was ineffective for not subpoenaing 

Studivant and presenting him at trial. Baxter’s Brief at 50. Baxter states: 

Greenb[e]rg knew about Studivant because he wrote him before 

trial and Studivant spoke with Greenb[e]rg’s investigator before 

trial. Even if Studivant did not speak with Greenb[e]rg’s 

investigator, the record, as the PCRA Court found, “is clear” that 

Greenb[e]rg knew of [or] should have known about Studivant’s 

testimony because, as the PCRA Court found, “there was 

communication and cooperation between Mr. Greenb[e]rg and 

Mr. Wallace with regards to locating witnesses.” Thus, despite 

knowing about Studivant’s testimony, as the PCRA Court found, 

Greenb[e]rg never subpoenaed him. 

At the PCRA hearing, Studivant’s testimony was consistent 

with Carter’s and Blackmon’s regarding the shooting: (1) he 

could not identify the gunmen because their hoodies were pulled 

tightly over their heads; (2) the gunmen were approximately 

6’1” to 6’2”; and (3) when people returned to the basketball 

courts several minutes after the shooting to assess the situation, 

he saw and heard Anthony Harris accuse Malik Ware of being 

one of the gunmen. These facts, as mentioned, would have 

been tremendously favorable to Baxter’s defense.
J-S11024-16

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Id. at 50-51. Baxter again argues the PCRA court misinterpreted his claim 

by analyzing it as a failure to call a witness argument as opposed to a 

compulsory process issue. Id. at 51.

Here, the PCRA court stated the following: “Studivant was not 

subpoenaed, however, according to a letter from Mark Shaffer dated 

December 2008, it is clear that trial counsel made multiple unsuccessful 

attempts to locate Studivant. Additionally, Studivant testified that he was 

aware of [Baxter]’s trial and the need for his testimony.” PCRA Court 

Opinion, 3/4/2015, at 6 (citations omitted). The court also found that 

Studivant did not give credible testimony at the PCRA hearing with regard to 

why he did not appear at trial. Id.

The record supports the court’s finding. Multiple attempts were made 

to contact Studivant. First, on September 3, 2008, Greenberg sent a letter 

to Studivant, stating: “Mr. Baxter insists that he is innocent and advises that 

you may have some relevant information about the case. Please contact me 

at your earliest convenience so that we can talk about the case in greater 

detail.” Baxter’s Post-Hearing Brief, 2/5/2015, at Exhibit 3. Approximately 

three months later, Mark H. Shaffer, the hired private investigator, sent a 

letter to Greenberg regarding the witnesses he was hired to locate. With 

regard to Studivant, Shaffer stated: “There was no answer at the time of 

our arrival. We left a sealed envelope requesting that he telephone us. He 
J-S11024-16

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has not telephoned.” Id. at Exhibit 5. Subsequently, on January 20, 2009, 

Shaffer wrote a second letter to Greenberg, in which he averred:

No record was found for [Studivant] in our databases. The 

provided residence address of 3433 N 16th Street, Philadelphia, 

PA 19140 is deeded to Deborah Willis as of 1999. No criminal 

record surfaced. 

We traveled to the provided residence address but on this 

occasion residents directed us to go across the street to 3444 N 

16th Street where the door was answered by a black female 

identifying herself only under the first name of Josephine and as 

the grandmother of Stefon [Studivant].

She states that Stefon [Studivant] is away at college, does 

not live at home and has a cell phone. She refused to give us 

his cell number or the house number. She refused to provide us 

with his college address but did advise he is presently a student 

at Lincoln University, Oxford, PA.

We gave Josephine the letter we had prepared in advance 

and related the urgency of Stefon [Studivant] telephoning us. 

She stated that she would only promise to pass the letter onto 

Stefon [Studivant]’s mother.

We have not received a call.

Id. at Exhibit 6, pg. 2.

At the January 20, 2015, hearing, Studivant testified Greenberg and 

Shaffer never contacted him directly or subpoenaed him. N.T., 1/20/2015, 

at 82. He also stated he came to the courthouse for one day of Baxter’s trial 

but could not remember which day it was. Id. at 86.

Again, Baxter has failed to establish Greenberg’s failure to seek 

compulsory process with regard to Studivant was “the result of sloth or lack 

of awareness of the available alternatives[.] Twiggs, 331 A.2d at 443. 
J-S11024-16

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Multiple attempts were made to ascertain Studivant’s whereabouts but none 

were successful. Studivant even admitted he was at the trial but did not 

indicate he went up to Baxter or Greenberg to indicate his willingness to 

testify. The evidence surrounding Studivant demonstrated he was not 

prepared to cooperate with Baxter’s defense. As such, we agree with the 

PCRA court that Studivant’s testimony as a willing witness was incredible. 

See Commonwealth v. Pate, 617 A.2d 754, 760 (Pa. Super. 1992) (noting 

credibility of witnesses in PCRA proceedings is exclusively within the 

province of the trial court). Accordingly, Baxter’s second ineffectiveness 

sub-claim fails.

Baxter’s third sub-issue involves counsel’s failure to effectively 

undermine the testimony of Rachel Marcelis. By way of background, 

Marcelis testified she was driving the two co-defendants to Daryl Mack’s 

aunt’s house when they made her stop at the schoolyard/playground and 

drop them off. She said she subsequently saw them running in her 

direction, and let them back in the car. She heard the two men discuss how 

McBride’s gun did not work and he could not fire any rounds. She asked 

McBride “if that was the person[, the victim,] who shot De-Nyce” and he 

answered in the affirmative. Baxter, 996 A.2d 535 [437 EDA 2009] (Pa. 

Super. 2010) (unpublished memorandum at 2). Marcelis testified she drove 

the two men to Mack’s aunt’s house and then to Wilkes-Barre, Pennsylvania. 

Baxter states counsel was ineffective for not cross-examining Marcelis 
J-S11024-16

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regarding her trial testimony from an unrelated case (the Cordell Young 

trial13), and her immunity agreements with the Commonwealth. See

Baxter’s Brief at 54. He also contends counsel failed to present Mack as an 

impeachment witness with respect to Marcelis. Id. Mack would have 

purportedly testified that he was at a party with Marcelis on the night before 

the shooting took place, and observed her consuming numerous amounts 

drugs and alcohol. N.T., 1/20/2015, at 19-20. He stated he did not see 

Baxter at this party. The following morning, he saw Marcelis driving her 

vehicle with no passengers. Id. at 22. He asked her for a ride and she told 

him that he could drive her car because he had a license. Id. at 24. He 

then drove to a paramour’s house and visited for approximately two hours 

while Marcelis fell asleep in the vehicle. Id. at 25-26. Afterwards, he was 

driving back to his neighborhood when he received a phone call about the 

shooting. Id. at 27-28. Mack was not interviewed by investigators but did 

speak with Wallace at the courthouse. Id. at 28-32. Consequently, Baxter 

complains Greenberg failed to “present readily available witness testimony 

and evidence capable of undermining Marcelis’s credibility.” Baxter’s Brief at 

54. 

____________________________________________

13

 Baxter alleges detectives “coaxed Marcelis to falsely implicate” Young in 

connection with the murder of a woman named Fatima Whitfield to protect 

her own interests. Baxter’s Brief at 56. Baxter does not provide any 

background information regarding this non-related case. He does not recite 

the statement or point to any part of it, which he claims is false.
J-S11024-16

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First, Baxter states Greenberg never specifically spoke with Mack, but 

rather relied on Wallace’s conversation with Mack to make the decision not 

to call him. Id. at 55. Second, he asserts Greenberg did not adequately 

interview Marcelis to obtain and review her allegedly fabricated May 3, 2007, 

statement in the Cordell Young trial.14 Baxter also claims Mack’s purported 

testimony contradicts Marcelis’s narrative of the events unfolding in relation 

to the present case. He argues:

A competent trial attorney could have persuasively argued 

detectives chose not to interview Mack because they coerced 

Marcelis’s May 3, 2007 statement and did not want to interview 

a witness who could expose their coercion.

...

Competent trial counsel could have also persuasively argued 

detectives chose not to interview Mack because they knew the 

eyewitness statements did not corroborate Marcelis’s narrative 

that, after the shooting, Baxter and McBride supposedly ran 

toward her SUV with a group of scared onlookers from the 

basketball courts. To hammer this point home, competent trial 

counsel would have highlighted the fact the Commonwealth did 

not present one witness who said they saw a white SUV near the 

basketball courts immediately before or after the shooting or 

who saw the gunmen jump into a white SUV immediately after 

the shooting.

____________________________________________

14

 A cursory review of the record reveals that this 2007 statement was not 

included in the certified record. We note that it was mentioned in Baxter’s 

post-hearing brief as Exhibit 2, but was not attached to the corresponding 

brief. See Baxter’s Post-Hearing Brief at 4 n. 2. “It is the responsibility of 

an appellant to ensure that the record certified on appeal is complete in the 

sense that it contains all of the materials necessary for the reviewing court 

to perform its duty.” Commonwealth v. Bongiorno, 905 A.2d 998, 1000 

(Pa. Super. 2006) (en banc), appeal denied, 917 A.2d 844 (Pa. 2007). 
J-S11024-16

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Id. at 56-57. Third, Baxter maintains Greenberg should have impeached 

Marcelis by introducing her immunity agreements with the Commonwealth in 

the present matter and in the Cordell Young case. Id. at 57. Further, he 

states:

Despite having the opportunity to tell the whole truth, without 

fearing prosecution, Marcelis’s testimony at both trials cannot 

possibly be true. Her testimony at Cordell Young’s trial differed 

from her testimony at Baxter’s trial because, at Young’s trial, she 

said she fabricated her May 3, 2007 statement, but at Baxter’s 

trial she said her statement was true.

Id. Baxter suggests that “all Greenb[e]rg did was cross-examine Marcelis 

and get her to admit she occasionally heard voices when she did drugs” and 

this testimony “did little, if anything, to the Commonwealth’s overall 

narrative.” Id. at 58. Baxter also claims Marcelis’s marred testimony and 

credibility would have called into question Harris’s and Durant’s 

identifications. Id. at 59.

To the extent Baxter argues counsel was ineffective for not crossexamining Marcelis regarding her testimony at the Cordell Young trial, or her 

allegedly contradictory statements at both trials, and for failing to put Mack 

on the stand to demonstrate that detectives chose not to interview him 

because they coerced Marcelis’s May 3, 2007 statement, we find these 

arguments waived for failure to properly preserve the issue. A review of the 

record reveals these claims were not contained in Baxter’s amended PCRA 

petition or addressed at the January 2015 PCRA hearing. It merits mention 

again that the PCRA court limited the hearing to two claims, neither of which 
J-S11024-16

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touched upon these arguments. Further, at the end of the hearing, the 

court provided the parties with two weeks to file submissions. Counsel for 

Baxter stated, “I know [Baxter] has done a tremendous amount of pleadings 

already. I think you know the case very well. I’ll just highlight what’s here 

and the case law.” N.T., 1/20/2015, at 295. Nevertheless, Baxter did raise 

these new assertions in his post-hearing brief. See Baxter’s Post-Hearing 

Brief, 2/5/2015. However, because they were not included in the petition or 

raised at the PCRA hearing, these arguments were not properly before the 

PCRA court.15 See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”). Accordingly, 

we conclude these contentions are waived. See Commonwealth v. 

Wharton, 811 A.2d 978, 986 (Pa. 2002) (waiving claim where appellant 

failed to raise it in PCRA petition).

We now turn to the remainder of Baxter’s argument that was properly 

preserved for appeal. With respect to his claim that counsel was ineffective 

for failing to call Mack as a witness, we are guided by the following:

When raising a claim of ineffectiveness for the failure to call a 

potential witness, a petitioner satisfies the performance and 

prejudice requirements of the [Strickland v. Washington, 466 

U.S. 668 (1984)] test by establishing that: (1) the witness 

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

(3) counsel knew of, or should have known of, the existence of 

the witness; (4) the witness was willing to testify for the 

____________________________________________

15

 This is evidenced by the fact that the PCRA court did not address these 

claims in its Rule 1925(a) opinion.
J-S11024-16

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defense; and (5) the absence of the testimony of the witness 

was so prejudicial as to have denied the defendant a fair trial 

Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 536 

(Pa. 2009); Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 

80, 90 (Pa. 2008). To demonstrate Strickland prejudice, a 

petitioner “must show how the uncalled witnesses’ testimony

would have been beneficial under the circumstances of the 

case.” Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 

1110, 1134 (Pa. 2008). Thus, counsel will not be found 

ineffective for failing to call a witness unless the petitioner can 

show that the witness’s testimony would have been helpful to 

the defense. Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 

1305, 1319 (Pa. 1996). “A failure to call a witness is not per se

ineffective assistance of counsel for such decision usually 

involves matters of trial strategy.” Id.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012). 

Moreover, 

“[t]he inquiry of whether trial counsel failed to investigate and 

present mitigating evidence turns upon various factors, including 

the reasonableness of counsel’s investigation, the mitigation 

evidence that was actually presented, and the mitigation 

evidence that could have been presented.” Commonwealth v. 

Simpson, 620 Pa. 60, 66 A.3d 253, 277 (Pa. 2013) (citation 

omitted). The reasonable basis prong of an ineffectiveness claim 

does “‘not question whether there were other more logical 

courses of action which counsel could have pursued; rather, we 

must examine whether counsel’s decisions had any reasonable 

basis.’” [Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 

2011)] (citation omitted).

Commonwealth v. Treiber, 121 A.3d 435, 471 (Pa. 2015).

Here, the PCRA court found the following:

[Baxter] argues that trial counsel was ineffective for failing to 

present testimony from Darryl Mack. Mack testified that on the

night before the shooting, he attended a party at the home of a 

man named Antoine. At that party, he saw Rachel Marcelis 

consume large amounts of alcohol, smoke PCP and marijuana, 

and take pills. He left the party, but saw Marcelis again the next 

morning; to him, she appeared to be inebriated. He asked for a 
J-S11024-16

- 29 -

ride, and she suggested that he drive her white truck while she 

rode along. He drove to the Frankford section of Philadelphia, in 

order to visit a woman he was seeing. He visited this woman for 

approximately two hours and fifteen minutes, and when he 

returned to Marcelis’s truck, she was sleeping where he had left 

her in the passenger seat. Mack also testified that he showed up 

to testify at [Baxter]’s trial, but was told by co-defendant’s 

counsel that he should leave because his testimony would be 

unhelpful.

At trial, Mr. Wallace, indicated that he decided not to call 

Mack as a witness as his testimony was not helpful. This Court 

cannot help but conclude that both Mr. Wallace and trial counsel 

exercised good judgment in refraining from offering Mack’s 

testimony, which failed to contradict Marcelis’s testimony and 

was redundant.4 Marcelis freely acknowledged at trial that she 

used Xanax, wet, marijuana, and alcohol on the night before the 

shooting, that she did so to an extreme degree, and that the 

substances were still affecting her on the day of the shooting. 

Mack’s testimony regarding Marcelis’s drug use was cumulative. 

Also, Mack’s testimony did not undermine Marcelis’s testimony 

that she was with [Baxter] and McBride during the shooting. 

Mack merely testified that he drove Marcelis’s car to his 

girlfriend’s house, left Marcelis in the car, and two hours later 

when he returned, she was in the car. Mack was driving Marcelis 

and her car back to Broad Street and Allegheny Avenue when a 

friend called Mack and informed him of Brown’s murder. Nothing 

in Mack’s testimony precludes the possibility that Marcelis drove 

[Baxter] and McBride to the shooting. Additionally, to the extent 

that Mack denies being present in the car with Marcelis, McBride, 

and [Baxter] at the time of the shooting, this Court finds this 

testimony incredible. Trial counsel was not ineffective for failing 

to present testimony from Mack.

____________________

4

 Again, this Court notes that there was communication 

and cooperation between Mr. Greenberg and Mr. Wallace. 

Although the record states that Mr. Wallace told Mack to 

leave, Mr. Wallace stated this fact in front of Mr. 

Greenberg and [Baxter]. It is clear that Mr. Greenberg 

was aware of the fact that Mack had been told to leave and 

agreed with this decision.

____________________
J-S11024-16

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...

Finally, [Baxter] argues that trial counsel was ineffective 

for failing to cross-examine Marcelis on the basis that she had 

entered into an immunity agreement with the Commonwealth in 

exchange for her testimony. At this Court’s hearing in this 

matter, Mr. Greenberg testified that he chose not to crossexamine Marcelis as to the immunity agreement because he felt 

that it might actually bolster her credibility with the jury, both by 

further establishing the likelihood that she had been the getaway 

driver in this shooting, and by allowing the Commonwealth to 

point out that the immunity agreement required that she tell the 

truth at trial, and exposed her to criminal liability if she failed to 

do so. Because he had already gotten Marcelis to acknowledge 

her significant drug use during the time period in question, he 

felt that he had already called her reliability as a witness into 

question, and thus using the agreement would not offer much 

and might, in fact, backfire.

Mr. Greenberg expressed a reasonable trial strategy, with 

a sound basis designed to effectuate the petitioner’s interests at 

trial. “Generally, where matters of strategy and tactics are 

concerned, counsel’s assistance is deemed constitutionally 

effective if he chose a particular course that had some 

reasonable basis designed to effectuate his client’s interests.” 

Commonwealth v. Puksar, 597 Pa. 240, 256-57, 951 A.2d 267, 

277 (2008)(quoting Commonwealth v. Miller, 572 Pa. 623, 819 

A.2d 504, 517 (2002)). “A chosen strategy will not be found to 

have lacked a reasonable basis unless it is proven ‘that an 

alternative not chosen offered a potential for success 

substantially greater than the course actually pursued.’” 

Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 

(2006)(quoting Commonwealth v. Howard, 553 Pa. 266, 719 

A.2d 233, 237 (1998)). This Court agrees that cross-examining 

Marcelis as to the immunity agreement would have had, at best, 

greatly diminished returns given what had already been 

accomplished, and may have had the effect of bolstering her 

credibility to [Baxter]’s detriment. Further, this Court notes that 

the jury was aware that Marcelis was never charged with crimes 

resulting from the murder. Because trial counsel pursued a 

reasonable trial strategy, this claim must fail.

PCRA Court Opinion, 3/4/2015, 8-9, 11-12 (record citations omitted).
J-S11024-16

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Based on our review, we agree with the PCRA court’s well-reasoned 

analysis that no relief is due on this claim. First, we note the PCRA court 

explicitly found Mack’s testimony incredible. “[S]uch credibility findings, if 

supported by the record, are binding on this Court.” Treiber, 121 A.3d at 

471 (citations omitted). Second, with respect to Mack, Baxter would like us 

to reweigh the evidence in his favor, which we may not do. Furthermore, 

Mack could not account for two hours of Marcelis’s time as well as the 

whereabouts of Baxter and McBride during the shooting. Therefore, the 

absence of his testimony was not so prejudicial as to have denied Baxter a 

fair trial. See Treiber, supra. Lastly, with respect to Baxter’s contention 

regarding evidence of Marcelis’s immunity agreement, we emphasize that 

the question is not whether there were more logical courses of action but 

whether counsel’s decision had any reasonable basis. See id. 

Indeed, the following exchange occurred between Greenberg and Baxter’s 

PCRA counsel regarding the issue:

[PCRA Counsel]: So you saw harm, you say you saw harm in 

bringing up the immunity agreement?

[Greenberg]: Yes. Well, I didn’t see a whole lot of good, but I 

think it could hurt him. The DA, for example, in redirect can 

emphasize the fact that the immunity agreement obligates her to 

tell the truth and I’ve been in cases – I’ve been in a million cases 

where DAs use plea agreements and immunity agreements to 

emphasize that the witness is obligated to tell the truth, 

otherwise the witness is going to be prosecuted for perjury, and 

I don’t want that to corroborate the witness’ testimony or 

credibility.
J-S11024-16

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[PCRA Counsel]: You think it’s impactful to the jury that 

somebody has to be instructed to tell the truth? That wouldn’t 

have any impact on the jury’s assessment of her credibility? The 

Commonwealth is giving the document informing you you must 

tell the truth, why? Aren’t you going to tell the truth anyway?

[Greenberg]: Because there are consequences to not telling the 

truth and I have found that plea agreements and immunity 

agreements that are used that require the witness to tell the 

truth adds to the seriousness of the witness’ demeanor and state 

of mind when he or she testifies. So the answer is yes, it can 

come back to hurt the defendant 

...

[Marcelis’s] lawyer was smart enough to protect his client 

from any murder prosecution by getting a broad immunity 

agreement. That’s the reason why she got the agreement, that 

was to protect her. But when I’m representing Mr. Baxter and I 

have a choice of whether or not to use that agreement, I have to 

evaluate what the purpose of the agreement is, where it is in the 

context of the facts of the case, and what can be done by the 

prosecutor on redirect examination to hammer home to the jury 

that this witness was obligated to tell the truth and that as a 

result she’s going to be that much more careful in recollecting 

things correctly and truthfully.

[PCRA Counsel]: Or could a trier of fact say, well, she’s locked 

into this set of facts, if she goes outside of this set of facts that 

the prosecution wants her to testify to, she will get charged with 

perjury, therefore she’s simply following marching orders? Could 

a trier of fact reasonably make the inference that, you know 

what, she’s just following marching orders?

[Greenberg]. Of course.

[PCRA Counsel]: And would that benefit Mr. Baxter?

...

[Greenberg]: The answer is yes, but understand here that 

usually in that context the prosecutor brings that up on direct 

examination and then the defendant goes to town about the 

significance of the immunity agreement and locking a witness in.
J-S11024-16

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In our case the prosecutor did not, so if I had brought it up 

on cross-examination or Mike Wallace had brought it up on 

cross-examination, that would have given the prosecutor the last 

word on redirect to elicit facts about that plea agreement that 

were basically favorable to him and would have hurt Mr. Baxter.

N.T., 1/20/2015, at 231-232, 234-235. The PCRA court found, and we 

agree, that Greenberg had acted reasonably by not introducing evidence 

regarding Marcelis’s immunity agreement. See PCRA Court Opinion, 

3/4/2015, at 11-12. Accordingly, Baxter’s third sub-claim fails.

With regard to Baxter’s remaining two claims, we will address them 

together. In his fourth sub-issue, Baxter asserts Greenberg’s cumulative 

errors warranted a new trial so that Baxter could introduce exculpatory and 

impeachment evidence not presented by Greenberg. Baxter’s Brief at 63. 

In Baxter’s final claim, he alleges Greenberg violated his right to counsel by 

being “totally absent” when the trial court addressed the jury and answered 

its three questions and by sending in his place an inexperienced attorney 

who had no criminal defense experience and knew nothing about the case or 

Baxter’s defense. Id. at 64.

We find both claims were not properly preserved with the PCRA court. 

See Pa.R.A.P. 302(a); see also Wharton, supra. Baxter did not raise 

either issue in his PCRA petition or at the PCRA evidentiary hearing. Rather, 

he raised the fourth sub-issue in his post-hearing brief and the last 

argument for the first time on appeal. Accordingly, both claims are waived 

and we need not address them further.
J-S11024-16

- 34 -

Based on our disposition, we affirm the order of the PCRA court 

denying Baxter relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016