J-S57011-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ERNEST MORRIS, :

:

Appellant : No. 2564 EDA 2013

Appeal from the PCRA Order August 20, 2013,

Court of Common Pleas, Montgomery County,

Criminal Division at No. CP-46-CR-0005182-2005

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 10, 2014

Appellant, Ernest Reginald Morris (“Morris”), appeals from the 

dismissal of his petition for relief filed pursuant to the Post Conviction Relief 

Act, 42 Pa.C.S.A. §§ 9541-46 (the “PCRA”). For the reasons that follow, we 

affirm the PCRA court’s order. 

In a prior opinion, the trial court summarized the relevant procedural 

background of this case through the time of trial as follows:

On March 24, 2005, Morris was charged with three 

counts of first-degree murder, three counts of thirddegree murder and various other related offenses. 

The charges stemmed from the January 31, 2005, 

shooting deaths of Shawne Mims, Jennifer 

Pennington and Ms. Pennington’s unborn child.

Detectives in Montgomery and Philadelphia Counties 

initially were unable to locate Morris. On May 1, 

2005, Montgomery County Detectives were advised 

that Morris had been arrested in Georgia. The 

following day, arrangements were made to have 
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Morris extradited back to Montgomery County. 

Morris arrived at the Montgomery County 

Correctional Facility on May 24, 2005.

On August 12, 2005, the Commonwealth filed a 

Notice of Intent to Seek Death Penalty. Two weeks 

later, Todd E. Henry, Esquire, entered his 

appearance on behalf of Morris. The trial of Morris, 

and co-defendants Harold Murray and Maurice David 

Jones, commenced in this court before the Honorable 

Richard J. Hodgson on January 3, 2006. Following 

opening statements, the court granted a defense 

request for mistrial. Morris and his co-defendants 

subsequently sought to bar retrial on double 

jeopardy grounds. Judge Hodgson denied that 

request, and Morris and his co-defendants appealed 

the adverse double jeopardy ruling to the Superior 

Court.

On January 7, 2008, the Superior Court denied the 

appeal, and remanded the case back to this court. 

The co-defendants timely filed petitions for allowance 

of appeal with our Supreme Court; Morris, still 

represented by Henry, did not. 

With the case against Morris back in this court, 

Henry filed a motion to withdraw as counsel on 

February 15, 2008. On or about February 27, 2008, 

Morris’s family retained Gregory J. Pagano, Esquire 

[“Attorney Pagano”], to represent Morris. Upon 

reviewing Morris’s file, Pagano discovered that the 

time to appeal to the Supreme Court from the 

Superior Court’s double jeopardy decision had 

expired. Consequently, on February 28, 2008, 

Pagano filed a nunc pro tunc petition for allowance of 

appeal with the Supreme Court. Pagano 

subsequently withdrew the petition on March 14, 

2008.

On April 3, 2008, President Judge Hodgson 

scheduled the trial of Morris for May 1, 2008, and the 

case was re-assigned to the undersigned. That same 
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day, the Commonwealth provided discovery to 

Pagano.

The undersigned held a pre-trial conference on April 

29, 2008. With the agreement of Morris, this court

granted the motion to withdraw previously filed by 

Henry. Pagano then verbalized a desire to withdraw 

as counsel, citing a lack of payment and the volume 

of discovery recently provided to him by the 

Commonwealth. After lengthy on-the-record 

discussions with Morris regarding his desire to either 

proceed to trial as scheduled, or to re-file a nunc pro 

tunc petition for allowance of appeal, this court 

directed Pagano to re-file the petition.

On September 25, 2008, the Supreme Court granted 

Morris’s re-filed Petition for Leave to File Petition for 

Allowance of Appeal Nunc Pro Tunc. The Supreme 

Court ultimately denied allowance of appeal on May 

24, 2009.

With the case returned to Montgomery County, the 

court issued an Order on June 1, 2009, appointing 

John I. McMahon, Jr., Esquire [“Attorney McMahon”], 

to serve as counsel for Morris. At a pre-trial hearing 

on June 4, 2009, this court scheduled trial for August 

24, 2009. The Commonwealth filed an Amended 

Notice of Intent to Seek Death Penalty on June 12, 

2009. 

On August 21, 2009, Morris, through counsel, filed a 

Motion to Dismiss under Pennsylvania Rule of 

Criminal Procedure 600. After two days of hearings, 

this court denied Morris’s Rule 600 motion in an 

Order dated August 25, 2009. Trial commenced on 

September 15, 2009.

On October 14, 2009, the jury found Morris guilty of 

one count of Criminal Conspiracy, one count of First 

Degree Murder, two counts of Second Degree 

Murder, one count of First Degree Murder of an 

Unborn Child, one count of Kidnapping, two counts of 

Burglary, four counts of False Imprisonment, one 
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count of Possession of an Instrument of Crime and 

one count of Possession of a Weapon. During the 

penalty phase, the jury informed the court in a 

written note after more than 10 hours of 

deliberations that it could not reach unanimity for 

either the death penalty or life in prison. Instead, 

the jury unanimously voted to end deliberations on 

October 19, 2009. This court later sentenced Morris 

to three consecutive terms of life imprisonment 

without parole, plus a consecutive term of 

incarceration of 43 to 90 years.

Morris, through trial counsel, filed a [timely] Notice 

of Appeal on January 19, 2010. This court issued an 

Order on January 21, 2010, directing Morris to file a 

Concise Statement of Matters Complained of on 

Appeal within 21 days. Morris, through counsel, filed 

a Concise Statement, and served a copy on the 

undersigned, on February 12, 2010.

Trial Court Opinion, 3/15/10, at 1-4 (footnotes omitted). 

On direct appeal, Morris raised one issue for our consideration, 

specifically whether the trial court erred in dismissing his motion pursuant to 

Rule 600 of the Pennsylvania Rules of Criminal Procedure. On November 1, 

2010, this Court affirmed the judgment of sentence.1 On December 30,

2010, Morris filed a pro se PCRA petition seeking the reinstatement of his 

direct appeal rights so that he could file a petition for allowance of appeal 

with the Supreme Court of Pennsylvania. After the appointment of new 

 

1

 In our memorandum decision, we noted that Morris had filed with this 

Court a pro se brief reiterating counsel’s arguments and adding his own, but 

that we refused to address the new issues raised pro se because Morris was 

represented by counsel at that time. Commonwealth v. Morris, 243 EDA 

2010, at 4 n.1 (Pa. Super. November 1, 2010) (unpublished memorandum) 

(citing Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) and 

Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993)). 
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counsel, the trial court granted the requested relief. On December 29, 

2011, the Supreme Court denied Morris’ petition for allowance of appeal.

On July 11, 2012, Morris filed a second PCRA petition. The PCRA court 

eventually appointed Karen Lee DeMerlis, Esquire, to represent Morris.2 On 

May 9, 2013, Attorney DeMerlis filed a petition to withdraw as counsel 

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), on 

the grounds that based upon her review of the record no meritorious issues 

existed. On July 21, 2013, the PCRA court permitted Attorney DeMerlis to 

withdraw as counsel and issued a notice of intent to dismiss Morris’ second 

PCRA petition without an evidentiary hearing pursuant to Rule 907 of the 

Pennsylvania Rules of Criminal Procedure. Morris filed multiple objections 

and replies to the Rule 907 notice, but on August 20, 2013, the PCRA court 

dismissed Morris’ second PCRA petition without an evidentiary hearing. On 

September 23, 2013, Morris, proceeding pro se, filed a Pa.R.A.P. 1925(b) 

statement, listing 38 issues.3 On November 12, 2013, the PCRA court filed a 

written opinion pursuant to Pa.R.A.P. 1925(a).

 

2

 The PCRA court initially appointed the local public defender’s office to 

represent Morris, but the office had a conflict of interest. The PCRA court 

then appointed Stephen M. Geday, Esquire, but due to Attorney Geday’s 

inability to represent Morris, Attorney DeMerlis was then appointed.

3

 Morris’ Rule 1925(b) statement, listing 38 issues for review, is not concise. 

Rule 1925(b)(4)(iv), however, provides that “the number of errors raised will 

not alone be grounds for finding waiver.” Pa.R.A.P. 1925(b)(4)(iv), and in 

Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417 (Pa. 2007), 

our Supreme Court instructed that this Court should not find waiver because 
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On appeal, Morris raises the same 38 issues he set forth in his Rule 

1925(b) statement:

1. Did the Honorable Court commit error in its opinion 

that no objective facts and circumstances existed to 

prove that the prosecutor intentionally provoked 

defense counsel into moving for a mistrial in 

[Morris’] first trial[.]

2. Was the Commonwealth afforded a second, perhaps, 

more favorable opportunity to convict [Morris] as a 

result of the mistrial declared in defendant's first 

trial[.]

3. Was the [trial court's] determination of facts 

surrounding Double Jeopardy questions 

unreasonable because the fact finding process was 

defective due to the prosecution's suppression of 

evidence favorable to [Morris], forcing the judge(s) 

to make a decision on an incomplete record[.]

4. Did the prosecutor fabricate evidence to the jury in 

his opening statement of [Morris’] first trial[.]

5. Was the Commonwealth required to file an affidavit 

along with subpoena for Cell Site Location 

Information (CSLI), pursuant to the probable cause 

standard[.]

6. Did the tactic employed by the Commonwealth to 

secure Cell Site Location Information (CSLI) violate 

unlawful search-and-seizure provisions in the State 

and Federal constitutions and the Pennsylvania 

Wiretap Act[.]

7. Did [Morris] have a reasonable expectation of 

privacy with respect to the cell phone signal he was 

 

of the number of issues raised in Rule 1925(b) statements unless the trial 

court finds that the appellant acted in bad faith. Id. at 420-21. Because the 

PCRA court did not find that Morris acted in bad faith, we will not quash his 

appeal on this basis.
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using, at the time(s) he was using the cellphone in 

his possession[.]

8. Did the Commonwealth violate the ‘stored 

communications’ provision of the Wiretap Act in its 

obtainment of Cell Site Location Information in 

[Morris’] case[.]

9. Was the warrantless search and seizure of Cell Site 

Location Information (CSLI) permissible absent the 

[c]ourt's determination that both probable cause and 

exigent circumstances existed, as set forth in the 

jurisprudence of both the state Superior Court and 

Supreme Court[.]

10. Did the Commonwealth have a continuing duty to 

promptly disclose subpoena for Cell Site records [] 

received from Nextel Phone Company before the 

adjudication of [Morris’] Double Jeopardy [a]ppeal, 

pursuant to Pa.R.Crim.P. 573 and Brady v. 

Maryland, 373 US 83 (1963)[.]

11. Did the Honorable Court violate [Morris’] Due 

Process rights when it failed to initiate an inquiry and 

resolve conflict between [Morris] and defense 

counsel after several pretrial warnings[.]

12. Did the Honorable Court's decision to allow attorney 

Gregory Pagano to represent [Morris] as first-chair 

counsel in pretrial and on [i]nterlocutory [a]ppeal to 

Supreme Court violate the legislative intent of the 

Supreme Court, pursuant to Title 1 Pa.C.S.A. § 

1921(b) and Pa.R.Crim.P. 801[.] 

13. Was [Morris] prejudiced when he was represented by 

unqualified counsel Pagano, who failed to obtain 801 

certification, pursuant to Pa.R.Crim.P. 801 and the 

jurisprudence of both the state Superior Court and 

Supreme Court[.]

14. Did the Honorable Court commit error by allowing 

the Commonwealth to introduce Cell Site evidence at 

trial[.]
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15. Did the Honorable Court commit error in its opinion 

that [Morris] did not have standing to challenge the 

admission of Cell Site evidence as an aggrieved 

person[.]

16. Was trial counsel ineffective for abandoning [Morris’] 

Double Jeopardy claim, and failing to raise objective 

facts and circumstances of the prosecutor's intent to 

provoke defense counsel into moving for a mistrial to 

gain a tactical advantage[.]

17. Was trial counsel ineffective for failing to investigate 

witnesses who provided notarized affidavit(s), or 

contradicting statements which could provide 

reasonable doubt[.]

18. Was trial counsel ineffective for failing to argue that 

the Cell Site evidence should be suppressed pursuant 

to the Fruit-Of-The-Poisonous-Tree Doctrine because 

the evidence was illegally obtained by the 

Commonwealth[.]

19. Was trial counsel ineffective for failing to establish 

that [Morris] had standing to challenge the 

admission of Cell Site evidence because appellant 

was an aggrieved person[.]

20. Was trial counsel ineffective for failing to argue that 

the prosecutor should have requested a hearing 

outside of the presence of jury when witness 

(Saleema Whitfield) expressed in an affidavit of 

probable cause for Search & Seizure Warrant her 

contemplation to assert her Fifth Amendment 

privilege rather than question the witness in front of 

the jury[.]

21. Did the conduct of the district attorney regarding 

witness Saleema Whitfield's intention to ‘plea The 

Fifth’ if called to testify at [Morris’] trial, the 

prosecutor failing to bring that information to the 

[c]ourt's attention display extraordinary course of 
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prosecutorial overreaching taken in deliberate bad 

faith[.]

22. Did the prosecutor's conduct surrounding Ms. 

Whitfield's intention to invoke her Fifth Amendment 

privilege constitute a deliberate attempt to force 

[Morris] to move for a mistrial, or at the least, 

prosecutorial overreaching, bad faith harassment 

designed to prejudice [Morris’] prospects for 

acquittal[.]

23. Did the prosecutor knowingly use false testimony to 

convict [Morris.]

24. Was trial counsel ineffective for suggesting a trial 

strategy that contradicted [Morris’] plea of ‘not 

guilty’[.]

25. Was trial counsel ineffective for requesting 

accomplice liability instruction since [Morris] was not 

charged with accomplice liability by statue [sic] in 

Bills of Information[.]

26. Did the Honorable Court commit error by allowing 

the prosecutor to suggest to the jury that they could 

find [Morris] guilty based on the accomplice liability 

principle[.]

27. Was trial counsel ineffective for failing to object to 

the prosecutor's suggestion to the jury that they 

should find [Morris] guilty based on the accomplice 

liability principle[.]

28. Was trial counsel ineffective for failing to raise and 

preserve more than one (1) issue on direct appeal[.]

29. Did the [Commonwealth] act in bad faith, harass or 

prejudice appellant when the district attorney's office 

contacted the Pennsylvania Supreme Court's 

Prothonotary’s Office and suggest the [Morris] did 

not want to appeal and the [C]ourt should deny and 

remand the case, so that the Commonwealth could 
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gain an unfair advantage by trying [Morris’] case 

with his codefendants[.]

30. Did trial judge commit error when he and attorney 

Pagano spoke ‘off-the-record’ regarding [Morris’] 

pending proceeding without [Morris] present, 

knowing a conflict of interest existed between 

[Morris] and Pagano[.]

31. Was PCRA counsel ineffective for failing to argue and 

preserve ‘layered ineffectiveness’ claim[.]

32. Did the anxiety caused by the intentional 

prosecutorial misconduct raise systematic concerns, 

beyond a specific right to fair trial, left unaddressed 

by retrial[.]

33. Did the Honorable Court apply an incorrect standard 

of law or misapply the appropriate standard in its 

decision of [Morris’] issues[.]

34. Were all counsels to date ineffective, pursuant to the 

provisions of the Fifth, Sixth and Fourteenth 

Amendments to the United States Constitution and 

Article 1 § 9, Article 1 § 10 of the Constitution of the 

Commonwealth of Pennsylvania[.]

35. Did the Sentencing Court commit error by not 

considering [Morris’] age and state of maturity and 

all relevant factors before imposing sentence[.]

36. Does Pennsylvania's mandatory life without parole 

sentencing scheme violate the Fifth, Sixth, Eighth 

and Fourteenth Amendments to the United States 

Constitution and Article 1 § 6, Article 1 § 9, Article 1 

§ 13 and Article 1 § 26 of the Constitution of the 

Commonwealth of Pennsylvania[.]

37. Did the theory of ‘transferred intent’ unfairly 

prejudice [Morris], violating the Fifth, Sixth, Eighth 

and Fourteenth Amendment to the United States 

Constitution and Article 1 § 6, Article 1 § 9, Article 1 
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§ 13, Article 1 § 26 of the Constitution of the 

Commonwealth of Pennsylvania[.]

38. Did the Honorable Court commit error when it 

dismissed [Morris’] PCRA petition without a hearing 

after [Morris] raised several material issues of fact[.]

Morris’ Brief at 5-9.

When considering the propriety of an order denying a request for relief 

under the PCRA, our standard of review is to determine whether the ruling of 

the PCRA court is supported by the certified record on appeal and is free of 

legal error. Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 

2013); Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012); 

Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012). 

To obtain PCRA relief, the petitioner must establish, by a 

preponderance of the evidence, that his conviction or sentence resulted from 

one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2), his 

claims have not been previously litigated or waived, and “the failure to 

litigate the issue prior to or during trial ... or on direct appeal could not have 

been the result of any rational, strategic or tactical decision by counsel.” Id.

§ 9543(a)(3)-(4). An issue is previously litigated if “the highest appellate 

court in which [appellant] could have had review as a matter of right has 

ruled on the merits of the issue.” Id. § 9544(a)(2). An issue is waived if 

the petitioner “could have raised it but failed to do so before trial, at trial, ... 
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on appeal or in a prior state post-conviction proceeding.” Id. § 9544(b); 

Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013) 

Based upon these principles, a majority of the issues raised here by 

Morris have not been preserved for appellate review at this time. A prior 

panel of this Court decided Morris’ first and thirty-third issues on appeal in a 

memorandum decision dated January 7, 2008, concluding that the trial court 

did not err in denying Morris’ motion to bar a re-trial on double jeopardy 

grounds.4 Commonwealth v. Jones, Morris & Murray, 138, 165, 211 

EDA 2006, at 17 (Pa. Super. January 7, 2008) (unpublished memorandum). 

In addition, we find that issues 2-15,5 21-23, 26, 29, 30, 33, and 35-37 are 

 

4

 In his appellate brief, Morris challenges the prior panel’s decision, claiming 

that it was “contrary to well established federal law.” Morris’ Brief at 15. 

Based upon the “law of the case” doctrine, however, this panel may not 

reverse the decision of a prior panel. See, e.g., Commonwealth v. Reed, 

971 A.2d 1216, 1220 (Pa. 2009) (citing Commonwealth v. Starr, 664 A.2d 

1326, 1331 (Pa. 1995) (“Among the related but distinct rules which make up 

the law of the case doctrine are that: ... (2) upon a second appeal, an 

appellate court may not alter the resolution of a legal question previously 

decided by the same appellate court ....”).

5

 Although presented here as trial court errors, both the PCRA court and the 

Commonwealth addressed Morris’ twelfth and thirteenth issues as claims of 

ineffective assistance of counsel. In these two claims, Morris argues that he 

was prejudiced because the trial court permitted him to be represented by 

Attorney Pagano in a death penalty case even though Attorney Pagano had 

not received certification pursuant to 234 Pa.Code § 801 to represent 

defendants in death penalty cases. Morris’ Brief at 30-38. This issue, 

however, was previously litigated, as it was raised on direct appeal in 

connection with arguments related to the Rule 600 issue. In our November 

1, 2010 memorandum decision, this Court ruled that “any error the trial 

court committed in permitting Mr. Pagano to represent [Morris] prior to trial 

was harmless.” Morris, supra n.3, at 9. As this decision is now the law of 
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all waived,6as they could have been (but were not) raised on direct appeal, 

and Morris has not alleged that appointed counsel’s decision to forego these 

issues on direct appeal “could not have been the result of any rational, 

strategic or tactical decision by counsel.”7 42 Pa.C.S.A. § 9543(a)(4).

Morris’ preserved issues for appeal all involve allegations of ineffective 

assistance of counsel. To obtain relief on a claim of ineffectiveness, a PCRA 

petitioner must satisfy the performance and prejudice test set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984). In Pennsylvania, 

we apply the Strickland test by looking to three elements. To wit, the 

petitioner must establish that (1) the underlying claim has arguable merit; 

(2) no reasonable basis existed for counsel's actions or failure to act; and 

(3) the petitioner suffered prejudice as a result of counsel's error, with 

prejudice measured by whether there is a reasonable probability that the 

 

the case, Morris could not possibly establish prejudice necessary to support 

an ineffectiveness claim. 

6

 Issues thirty-two and thirty-five through thirty-seven are also waived 

because Morris included no argument in support of them in his current 

appellate brief. See, e.g., Commonwealth v. Stilley, 689 A.2d 242, 246 

(Pa. Super. 1997) (“This argument is completely unsupported and made 

without reference to case law or legal analysis. We, therefore, will not 

address it.”).

7

 In connection with his twenty-eighth issue, Morris essentially admits that 

his appointed counsel waived these issues intentionally on direct appeal by 

utilizing a specific strategy – namely to focus this Court’s attention squarely 

and exclusively on the Rule 600 issue by foregoing consideration of all other 

issues on appeal. Morris’ Brief at 54. Morris now argues that this strategy 

was unreasonable and that as a result counsel was ineffective for waiving 

issues on direct appeal. Id. We will address this issue hereinbelow.
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result of the proceeding would have been different. See, e.g., 

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Counsel is 

presumed to have rendered effective assistance. See, e.g., 

Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013). A court is 

not required to analyze the elements of an ineffectiveness claim in any 

particular order of priority, and if a claim fails under any necessary element 

of the three-element test, the court may proceed to that element first. See, 

e.g., Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998). 

For his sixteenth issue on appeal, Morris contends that his appointed 

trial counsel (Attorney McMahon) was ineffective because he “abandoned” 

efforts to bar a retrial on double jeopardy grounds. To understand Morris’ 

somewhat convoluted argument, we must remind that the trial court 

declared a mistrial after opening arguments in Morris’ first trial, based on a 

reference by the prosecutor to a statement to police made by one of Morris’ 

co-defendants. On January 7, 2008, this Court affirmed the trial court’s 

denial of Morris’ motion to bar a retrial on double jeopardy grounds, 

rejecting Morris’ contention that the prosecutor had goaded Morris’ counsel 

into moving for a mistrial. See, e.g., Commonwealth v. Smith, 615 A.2d 

321 (Pa. 1992) (double jeopardy clause prohibits re-trial of a defendant 

when prosecutorial misconduct is intended to provoke defendant into moving 

for mistrial, or when the conduct of the prosecutor is intentionally 

undertaken to prejudice defendant and deny him a fair trial). On May 24, 
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2009, our Supreme Court denied Morris’ petition for allowance of appeal of 

our decision. 

During the pendency of these appeals, the Commonwealth subpoenaed 

and obtained phone records for the cell phone of Morris’ girlfriend. These 

records, which placed Morris at the scene of the crime, were subsequently 

used against him at his second trial. Attorney McMahon received copies of 

these phone records from the Commonwealth in or around April 2008, and 

Morris now argues that Attorney McMahon should have filed a new motion to 

bar a retrial on double jeopardy grounds using the phone records to bolster 

his arguments. According to Morris, his prior double jeopardy motions and 

appeals were decided on an “incomplete record,” since the phone records 

provided new evidence that the prosecutor intentionally goaded defense 

counsel into seeking a mistrial – namely to buy him more time before a 

second trial to obtain said phone records to use against Morris in a second 

trial.8 Morris’ Brief at 39-41 (“Apparently someone dropped the ball in 

securing cell site records relating to [Morris] prior to the first trial, so 

aborting trial in favor of gathering stronger evidence against [Morris] in a 

second bite at the apple was ideal.”). 

 

8

 Morris also argues that the “cell site evidence establishes not only did the 

D.A. reference inadmissible heresy [sic], but he also fabricated evidence to 

the jury.” Morris’ Brief at 40. As we cannot fathom how these points (even 

if true) have any bearing on Morris’ sixteenth issue on appeal, we cannot 

grant any relief on these bases.
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In our January 7, 2008 memorandum decision, we rejected Morris’ 

double jeopardy arguments on two independent grounds. First, we 

concluded that no evidence of record supported Morris’ claims of intentional 

misconduct by the prosecutor. Morris, supra, at 6 (“[W]e would agree with 

the trial court that there was no evidence of intentional misconduct.”). 

Second, we ruled that the prosecutor had not erred in referencing the codefendant’s statement to police, as it would have been admissible at trial. 

Id. at 10. In particular, we indicated that the statement of Morris’ codefendant did not directly incriminate Morris, as the co-defendant, rather 

than confessing, had denied having anything to do with the victims’ murders

or even knowing Morris at all. Id. 

As a result, even if the subsequently obtained cell phone records could 

have, hypothetically, been offered as some evidence of the prosecutor’s 

intentional misconduct, a second motion to bar a retrial on double jeopardy 

grounds had no chance for success. If such a motion had been filed, the 

trial court would have been bound to follow our ruling in the January 7, 2008 

memorandum decision, which decision foreclosed any possibility that relief 

could have been granted to Morris thereon. Attorney McMahon cannot be 

deemed ineffective for failing to raise a meritless claim. See, e.g., 

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).

For his seventeenth issue on appeal, Morris argues that Attorney 

McMahon failed to investigate “witnesses who provided notarized affidavits, 
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or contradicting statements which could provide reasonable doubt.” When 

raising a failure to call a potential witness claim, the PCRA petitioner must 

show, at a minimum, 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 

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. Washington, 927 A.2d 586, 599 (Pa. 2007). To 

demonstrate prejudice, the PCRA petitioner “must show how the uncalled 

witnesses' testimony would have been beneficial under the circumstances of 

the case.” Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008); 

see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (“Trial 

counsel's failure to call a particular witness does not constitute ineffective 

assistance without some showing that the absent witness' testimony would 

have been beneficial or helpful in establishing the asserted defense.”); 

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009).

Morris has not identified any potential witness who satisfies these 

requirements. In his appellate brief, he identifies one potential witness, 

Donna Calhoun, who could potentially point to other individuals who were 

apparently seen in the area of the crime on the night in question and who 

were apparently looking for one of the victims. Morris’ Brief at 42. Morris 

provides no basis, however, by affidavit or otherwise, that Calhoun was 
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known to Attorney McMahon or was available and/or willing to testify in 

Morris’ case at trial.

In connection with this issue, Morris also contends that Attorney 

McMahon failed to investigate DNA evidence on cigarette butts at the scene 

of the crime. According to Morris, this DNA evidence could have 

“scientifically excluded” him from being at the scene of the crime, since the 

Commonwealth posited that victim Jennifer Pennington was allowed to 

smoke a final cigarette before her murder. Id. We cannot conceive of how 

this evidence could possibly be exculpatory for Morris, however, since at 

best it would show that Morris did not smoke the cigarettes that were tested 

– which would prove nothing with regard either to his presence at the scene 

or his participation in the crimes at issue. 

For his eighteenth and nineteenth issues on appeal, Morris contends 

that Attorney McMahon was ineffective for failing to argue that the cell 

phone reports should have been suppressed and that he had standing to 

seek their suppression. The issue of suppression was extensively litigated 

prior to the second trial, with the trial court ruling ultimately denying the 

suppression motion on the grounds that Morris lacked standing because he 

had no possessory interest in the cell phone at issue. 

“The concept of standing in a criminal search and seizure context 

empowers a defendant to assert a constitutional violation and thus seek to 

exclude or suppress the government's evidence pursuant to the exclusionary 
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rules under the Fourth Amendment of the United States Constitution or 

Article 1, Section 8 of the Pennsylvania Constitution.” Commonwealth v. 

Hawkins, 718 A.2d 265, 266 (Pa. 1998). As this Court has summarized:

A defendant moving to suppress evidence has the 

preliminary burden of establishing standing and a 

legitimate expectation of privacy. Standing requires 

a defendant to demonstrate one of the following: 

(1) his presence on the premises at the time of the 

search and seizure; (2) a possessory interest in the 

evidence improperly seized; (3) that the offense 

charged includes as an essential element the 

element of possession; or (4) a proprietary or 

possessory interest in the searched premises. A 

defendant must separately establish a legitimate 

expectation of privacy in the area searched or thing 

seized. Commonwealth v. Hawkins, 718 A.2d 

265, 267 (Pa. 1998); Commonwealth v. Black, 

758 A.2d 1253, 1256–1258 (Pa. Super. 2000); 

Commonwealth v. Torres, 764 A.2d 532, 542 (Pa. 

2001); Commonwealth v. Perea, 791 A.2d 427, 

429 (Pa. Super. 2002). Whether [a] defendant has a 

legitimate expectation of privacy is a component of 

the merits analysis of the suppression motion. See 

Commonwealth v. Millner, 888 A.2d 680, 691 (Pa. 

2005). The determination whether [a] defendant 

has met this burden is made upon evaluation of the 

evidence presented by the Commonwealth and the 

defendant.

Commonwealth v. Powell, 994 A.2d 1096, 1103-04 (Pa. Super. 2010) 

(quoting Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) 

(en banc). 

The parties do not dispute the basic factual predicate on which the trial 

court ruled with respect to the suppression of the cell phone records. On the 

night of the crime, Morris had borrowed the cell phone of his girlfriend, 
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Saleema Whitfield (“Whitfield”). Pursuant to a subpoena issued to Sprint 

Nextel, in or around April 2006, the Commonwealth obtained the records for 

this cell phone for the date in question, including cell tower information 

showing the approximately location of where calls were made that night. At 

the second trial, the Commonwealth used these cell phone records to place 

Morris at the scene of the crime. See Morris’ Brief at 43, 45. 

The trial court ruled, and we agree, that Morris lacked standing to 

suppress the cell phone records. He was not present at the time of 

production of the records, and possession of the cell phone and its records 

was not an essential element of any of the crimes with which he was 

charged or convicted.9 Because the cell phone belonged to Whitfield, Morris, 

who was merely borrowing it that night, had no possessory interest in either 

the cell phone or the records for it obtained by subpoena. Moreover, the 

trial court properly ruled that Morris had no reasonable expectation of 

privacy either in the phone itself or any information associated with its use 

on the night in question. Morris returned the borrowed phone to Whitfield 

soon thereafter, apparently without erasing any information on it, thus 

providing Whitfield with access to its contents.10 

 

9

 Morris was convicted of possession of an instrument of crime and 

possession of a weapon, but the essential element for these crimes was 

possession of the gun, not the cell phone or its records. 

10

 Morris also argues that the trial court erred in finding that Whitfield 

consented to a search of the contents of her cell phone. Whether or not 
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Contrary to Morris’ contentions, Attorney McMahon litigated the issues 

surrounding the cell phone records, but the trial court, in its discretion, ruled 

in favor of the Commonwealth. As a result, Morris’ ineffectiveness claim on 

this basis lacks any merit and no relief is due.

For his twentieth issue on appeal, Morris argues that Attorney 

McMahon was ineffective for failing to insist that the prosecutor request a 

hearing outside of the presence of jury when Whitfield, during pre-trial 

proceedings before the second trial, indicated that she would consider 

asserting her Fifth Amendment privilege if called to testify against Morris 

(principally regarding ownership of the above-discussed cell phone). Morris’ 

claim of ineffectiveness on this basis is moot, since Whitfield testified at the 

second trial and did not assert a Fifth Amendment privilege.

For his twenty-fourth issue on appeal, Morris claims that Attorney 

McMahon was ineffective for recommending to him that, instead of claiming 

his complete innocence, he take the position at trial that while he 

accompanied his two co-defendants on the night in question (as their 

driver), he did not know or want anyone to get hurt or killed.11 Morris’ Brief 

 

Whitfield consented to the search, however, is irrelevant to a determination 

of Morris’ standing to seek suppression of the evidence at issue.

11

 In its appellate brief, the Commonwealth contends that Attorney 

McMahon had a reasonable strategy for offering this advice, namely to avoid 

a death sentence for Morris’ part in the murders. Commonwealth’s Brief at 

27. The Commonwealth notes that this was a reasonable approach, both 

because of the overwhelming nature of the evidence against him and 
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at 50. With respect to this issue, however, Morris has provided this Court 

with no basis on which to conclude that he suffered any prejudice, including 

no identification of any evidence or alternative strategy that counsel could 

have utilized that would have resulted in a reasonable probability that the 

result of trial would have been different. As a result, in the absence of a 

showing of prejudice, no relief is due on this issue.

For his twenty-fifth and twenty-seventh issues on appeal, Morris 

claims that Attorney McMahon was ineffective for requesting a jury charge 

on accomplice liability and for not objecting when the Commonwealth argued 

accomplice liability to the jury. Morris’ Brief at 51-53. Morris points out that 

although he was charged with conspiracy, he was not also charged with 

accomplice liability, and counsel’s actions in effect reduced the 

Commonwealth’s burden to prove his guilt as a principal. Id. 

These ineffectiveness claims are meritless. A defendant may be 

convicted as an accessory though only charged as a principal. 

Commonwealth v. Spotz, 716 A.2d 580, 588 (Pa. 1998); 

Commonwealth v. Melvin, 2014 WL 4100200, at *37 n.30 (Pa. Super. 

Aug. 21, 2014). As long as the defendant is put on notice that the 

Commonwealth may pursue theories of liability that link the defendant and 

 

because it was successful. Id. In the absence of an evidentiary hearing, 

however, the certified record contains no testimony from Attorney McMahon 

as to his actual strategic basis, and we may not speculate in this area when 

ruling on an ineffectiveness claim. Commonwealth v. Williams, 899 A.2d 

1060, 1065 (Pa. 2006).
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another in the commission of crimes, the defendant cannot claim that the 

Commonwealth's pursuit of such a theory surprised and prejudiced him. 

Commonwealth v. Potts, 566 A.2d 287, 293 (Pa. Super. 1989); 

Commonwealth v. Smith, 482 A.2d 1124, 1126 (Pa. Super. 1984). A 

charge of criminal conspiracy puts a defendant on sufficient notice of the 

Commonwealth’s intention to argue a link between that defendant and 

another person in the commission of the crimes in question. 

Commonwealth v. McDuffie, 466 A.2d 660, 662 (Pa. Super. 1983) (“Such 

notice was clearly adequate to alert appellant to the potential imposition of 

criminal liability as an accomplice of Mr. Warren.”).

For his twenty-eighth issue on appeal, Morris argues that Attorney 

McMahon, as direct appeal counsel, was ineffective for preserving just one 

issue (Rule 600) for appeal. Based upon our review of his appellate brief 

and the certified record on appeal, however, and as set forth hereinabove, 

Morris has not identified any meritorious issue that Attorney McMahon failed 

to pursue on direct appeal. For this same reason, we must reject Morris’ 

thirty-first and thirty-fourth issues on appeal, pursuant to which he contends 

all of his attorneys have provided ineffective assistance of counsel (including 

claims of layered ineffectiveness). To secure relief on claims for layered 

ineffectiveness, an appellant must plead and prove Strickland/Pierce

ineffectiveness as to each relevant layer of representation. See, e.g., 

Commonwealth v. Robinson, 82 A.3d 998, 1005-06 (Pa. 2013); 
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Commonwealth v. Ali, 10 A.3d 282, 292 (Pa. 2010); Commonwealth v. 

McGill, 832 A.2d 1014, 1023 (Pa. 2003). There can be no layered 

ineffectiveness claims, however, in the absence of any meritorious 

ineffectiveness claims.

Finally, for his thirty-eighth issue on appeal, Morris claims that the trial 

court erred in dismissing his second PCRA petition without an evidentiary 

hearing. Rule 908(A) of the Pennsylvania Rule of Criminal Procedure 

provides that a judge shall order a hearing when a petition for PCRA relief 

raises material issues of fact. Pa.R.Crim.P. 908(A); Commonwealth v. 

Hutchinson, 25 A.3d 277, 320 (Pa. 2011). Where a PCRA petition does not 

raise material issues of fact and the petitioner’s claims may be disposed of 

based upon the then-existing record, however, a PCRA court does not abuse 

its discretion in dismissing the petition without an evidentiary hearing. See 

Commonwealth v. Rush, 838 A.2d 651, 659–60 (Pa. 2003). Although 

Morris now contends that he has raised “a multitude of material facts,” our 

review of his second PCRA petition, the certified record on appeal, and his 

appellate brief has not uncovered any such issues necessitating an 

evidentiary hearing. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2014