J-S55026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. AJAMU R. LUNSFORD, Appellant No. 377 WDA 2015

Appeal from the PCRA Order February 24, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0017707-2003
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and S TRASSBURGER, J. * MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 17, 2015 Ajamu R. Lunsford appeals from the February 24, 201 5 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm. In June 2003, Darryl Terry, Sr. and his paramour, J essenia Caraballo, owned a mobile store, selling groceries and cigaret tes to people in the West End neighborhoods of the City of Pittsburgh. On th e evening of June 5, 2003, their mobile store was parked on Woodlow Stre et, near the Cherry Court Apartments. There, people had gathered for a neighborhood party. At about 8 p.m., Ms. Caraballo was at her store to restock inventory. While sitting in her parked SUV, speaking on the ph one, Appellant

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* Retired Senior Judge assigned to the Superior Cour t.J-S55026-15

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approached her, spoke to her, and repeatedly asked her for a kiss. Ms. Caraballo observed that Appellant smelled of alcoho l. She declined his advances, and Appellant left. However, she was ups et by the encounter and called Mr. Terry, who was at home with their two ch ildren. Upon his request, Ms. Caraballo returned home, pick ed up Mr. Terry and their children, and returned to their mobile st ore. When they arrived, Ms. Caraballo identified Appellant standing across the street at the neighborhood party. Mr. Terry, who recognized Appe llant from the store earlier in the day, confronted Appellant. Appellan t became very aggressive. When Mr. Terry attempted to return to the SUV, Appe llant began shooting, and the party crowd scattered. Mr. Terry survived but was struck three times: in his left femoral artery, the back of his right thigh, and the right side of his buttocks. A bullet hit the SUV as well, but Ms. Caraballo and the children were unharmed. Although Mr. Terry and Ms. Caraballo did not know A ppellant personally, they described Appellant and informed t he police that Appellant was known as “Jamu.” Thereafter, both identified A ppellant in a policeadministered, photo array. Appellant was arrested and charged with criminal at tempt (homicide), aggravated assault, recklessly endangering another person (REAP) (twoJ-S55026-15

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counts), and firearms not to be carried without a l icense. 1 Appellant waived his right to a jury trial. A first bench trial end ed in a mistrial. However, in September 2007, a second bench trial commenced. At the second trial, Mr. Terry and Ms. Caraballo te stified on behalf of the Commonwealth. Both positively identified Appel lant as the shooter. A third witness, Ms. Shayisha Woods, placed Appellant at the scene but did not observe the shooting. Detective Dale Canofari also testified on behalf of the Commonwealth that, prior to Appellant’s arrest, Mr. Terry and Ms. Caraballo identified Appellant from an array of six photograp hs. Finally, the Commonwealth introduced physical evidence, includin g shell casings, a bullet fragment, and the firearm used in the assaul t. However, the Commonwealth did not directly link the physical evi dence to Appellant. 2 Appellant testified on his own behalf. According t o Appellant, he never approached Ms. Caraballo but witnessed her involvem ent in a drug transaction that went awry. According to Appellant , he surmised that trouble would ensue. Thus, he and a friend, Mr. An dre Cain, decided to leave the party. Mr. Cain called his girlfriend, M s. Tia Martin, for a ride home. Shortly after her arrival, Mr. Cain left wit h Ms. Martin, and Appellant walked toward his sister’s home, several blocks awa y. As they were leaving,

____________________________________________ 1 Respectively, 18 Pa.C.S. §§ 901(a), 2702(a)(1), 27 05, and 6106(a)(1).

2 All parties stipulated that Appellant did not have a license to carry a firearm.J-S55026-15

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according to Appellant, gunfire broke out. Appella nt denied shooting Mr. Terry. Notably, Appellant also denied drinking alc ohol, on that evening or any other, due to a medical condition. However, Ap pellant offered no corroborating evidence of his medical condition. Ms. Martin also testified on Appellant’s behalf. H er testimony largely supported Appellant’s recollection of the timeline of the evening; however, she did not address Appellant’s abstinence from alc ohol. Mr. Cain was not called upon to testify. Following his trial, Appellant was convicted of agg ravated assault, both counts of REAP, and the firearms offense. 3 The trial court sentenced Appellant to an aggregate term of fifteen to thirty years’ incarceration. Following a lengthy delay, irrelevant to this appea l, a panel of this Court affirmed Appellant’s judgment of sentence. See Commonwealth v. Lunsford , 82 A.3d 470 (Pa. Super. 2013) (unpublished memora ndum). In August 2013, Appellant pro se filed a petition for collateral relief. Counsel was appointed and filed an amended petition , as well as a supplemental petition, asserting ineffective assist ance of trial counsel on several grounds. In May 2014, the PCRA court appri sed Appellant of its intention to deny him relief, without a hearing, on his claim that counsel was ineffective for failing to challenge the out-of-cou rt identification of Appellant

____________________________________________ 3 Appellant was found not guilty of criminal attempt (homicide).J-S55026-15

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by Mr. Terry and Ms. Caraballo. However, the court granted Appellant a hearing to determine whether trial counsel was inef fective for (1) failing to call Mr. Andre Cain as a witness and (2) failing to solicit testimony from Ms. Tia Martin or Ms. Ivy Lunsford (Appellant’s mother) regarding Appellant’s abstinence from alcohol. In November 2014, the PCRA court held an evidentiar y hearing. Mr. Cain, Ms. Martin, and Ms. Lunsford each testified o n Appellant’s behalf. Mr. Cain’s PCRA testimony largely corroborated the tria l testimony of Appellant and Ms. Martin. However, Mr. Cain acknowledged tha t, in 2001, he had pleaded guilty to the charge of counterfeiting. No tes of Testimony, 11/17/2014, at 21. Ms. Martin testified that she h ad never seen Appellant drink, throughout their long friendship, and that h e did not appear to be intoxicated on the night of the shooting. Finally, Ms. Lunsford testified that she never knew her son to drink alcohol or use othe r drugs and that Appellant abstained from alcohol because he suffere d from epilepsy. However, on cross-examination, Ms. Lunsford acknowl edged that she did not always know what her son did. See id. at 33. Moreover, she was unaware that Appellant pleaded guilty to possession of a co ntrolled substance in 1995. Id. at 32. In February 2015, the PCRA court issued an order, d enying Appellant collateral relief. See PCRA Court Order, 02/24/2015. The court explained its decision in a memorandum opinion. The court de termined that Mr. CainJ-S55026-15

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was not a credible witness, and therefore, accordin g to the court, Appellant was not prejudiced by trial counsel’s failure to ca ll Mr. Cain to testify at trial. See PCRA Opinion, 02/24/2014, at 4-6. Moreover, the c ourt noted that Mr. Cain acknowledged that he was previously convicted for counterfeiting and concluded that this provided trial counsel a reason able basis to exclude Mr. Cain. Id. at 6. Regarding the testimony of Ms. Martin and Ms . Lunsford, the court concluded that Appellant suffered no prejudic e. Id. at 7. The court noted that neither witness was in Appellant’s prese nce for an extended period prior to the shooting and, therefore, could not testify persuasively as to whether Appellant drank any alcohol on that even ing. Id. Appellant timely appealed. Citing the opinion expl aining its decision, the PCRA court did not direct Appellant to file a P a.R.A.P. 1925(b)
statement. On appeal, Appellant renews his basic contention th at trial counsel was ineffective. He contends the PCRA court erred in ( 1) its assessment of Mr. Cain’s credibility and its determination that there was a reasonable basis for trial counsel’s decision not to call Mr. Cain as a trial witness; (2) its assessment of the persuasive value of testimony off ered by Ms. Martin and Ms. Lunsford; and (3) its determination that the ph oto array shown Mr. Terry and Ms. Caraballo was not impermissibly sugge stive. See Appellant’s Brief at 30-35, 37-40, 42. Moreover, (4) Appellant contends that theJ-S55026-15

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cumulative impact of trial counsel’s errors warrant collateral relief. Id. at 55. 4 We review an order denying a petition under the PCR A to determine whether the findings of the PCRA court are supporte d by the evidence of record and free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will no t be disturbed unless there is no support for the findings in the certifi ed record. Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa. Super. 2001). We presume counsel is effective. Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007). To overcome this pre sumption and establish ineffective assistance of counsel, a PCRA petitione r must prove, by a preponderance of the evidence: “(1) the underlying legal issue has arguable merit; (2) counsel’s actions lacked an objective re asonable basis; and (3) actual prejudice befell the petitioner from counsel ’s act or omission.” Commonwealth v. Johnson , 966 A.2d 523, 533 (Pa. 2009) (citations omitted). “A petitioner establishes prejudice when he demonstrates that there is a reasonable probability that, but for cou nsel’s unprofessional errors, the result of the proceeding would have bee n different.” Id. A claim

____________________________________________ 4 Appellant’s brief fails to include a statement of questions involved or a summary of his argument. See Pa.R.A.P. 2116(a); Pa.R.A.P. 2118. Thus, we admonish Appellant that he has not conformed to our Rules of Appellate Procedure and risks waiver. See Commonwealth v. Adams , 882 A.2d 496, 497-98 (Pa. Super. 2005). Nevertheless, we re view his claims.J-S55026-15

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will be denied if the petitioner fails to meet any one of these requirements. Commonwealth v. Springer , 961 A.2d 1262, 1267 (Pa. Super. 2008) (citing Commonwealth v. Natividad , 938 A.2d 310, 322 (Pa. 2007)); Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008). 5 Appellant contends that trial counsel was ineffecti ve for failing to call Mr. Cain as a witness. He asserts that the PCRA co urt erred in its determination that Mr. Cain was not a credible witn ess, clarifying certain minor inconsistencies between his testimony and the testimony of other witnesses. Moreover, Appellant rejects the PCRA co urt’s conclusion that trial counsel’s decision not to call Mr. Cain was reasona ble, suggesting that the admission of evidence demonstrating Mr. Cain’s conv iction for counterfeiting would not have impeached his credibility as a defen se witness. 6

____________________________________________ 5 In its brief, the Commonwealth suggests we recogni ze, as a general rule of law, that a PCRA petitioner “fails to satisfy his b urden of production – much less persuasion – unless he calls the allegedly ine ffective attorney to the stand.” Appellee’s Brief at 21. According to the Commonwealth, absent testimony from the allegedly ineffective attorney r egarding the “reasonable basis” prong of the ineffectiveness test, a petitio ner’s claim is necessarily defeated. Id. at 22 (citing in support Commonwealth v. ReyesRodriguez , 111 A.3d 775 783 (Pa. Super. 2015) ( en banc )). We decline to accept the Commonwealth’s suggestion and note that its reliance upon Reyes-Rodriguez

is misplaced. In that case, the allegedly ineffec tive counsel actually testified. Id. at 779. Nevertheless, petitioner failed to establish an evidentiary basis for his ineffectiven ess claim. Id. at 783.

6 There is no dispute before this Court regarding Mr . Cain’s availability or willingness to testify. See Commonwealth v. Sneed , 45 A.3d 1096, 1108- 09 (Pa. 2012) (setting forth the requirements to es tablish a petitioner’s (Footnote Continued Next Page)J-S55026-15

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Appellant’s argument is without merit. The decisio n whether to call a particular witness implicates matters of trial stra tegy. See Commonwealth v. Washington , 927 A.2d 586, 599 (Pa. 2007). Thus, Appellant mu st “demonstrate that trial counsel had no reasonable b asis for declining to call” Mr. Cain. Id. Here, Mr. Cain acknowledged his conviction for coun terfeiting, a crime involving dishonesty. See, e.g. , Kinniry v. Abington Sch. Dist. , 673 A.2d 429, 433 (Pa. Cmwlth. 1996) (identifying both count erfeiting and trafficking in counterfeit goods to be crimes involving dishone sty, i.e. , crimen falsi ). Pennsylvania Rule of Evidence 609(a) permits the ad mission of such crimes expressly “[f]or the purpose of attacking the credi bility of [the] witness.” Pa.R.E. 609(a). Thus, if trial counsel had called upon Mr. Cain to testify, the Commonwealth could have impeached his credibility. Moreover, Mr. Cain’s testimony was largely cumulative of Ms. Martin’s tr ial testimony. See Commonwealth v. Spencer , 639 A.2d 820, 825 (Pa. Super. 1994) (“As a general rule, counsel will not be deemed ineffectiv e for failing to call witnesses whose testimony is merely cumulative of t hat of other witnesses.”). In light of these considerations, we discern no error in the

(Footnote Continued) _______________________ claim of ineffective assistance of counsel where co unsel has failed to call a potential witness).J-S55026-15

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PCRA court’s determination that trial counsel had a n objectively reasonable basis not to call Mr. Cain. 7 Appellant also contends that trial counsel was inef fective for failing to solicit testimony from Ms. Martin or Ms. Lunsford r egarding Appellant’s abstinence from alcohol. 8 Appellant’s contention merits little discussion. The PCRA court considered the testimony offered by Ms. Martin and Ms. Lunsford but discounted its persuasive weight, noti ng that neither witness was with Appellant for sufficient time to testify a uthoritatively that Appellant did not drink alcohol on the evening of the shootin g. PCRA Opinion at 7. Thus, the PCRA court concluded, Appellant suffered no prejudice, as their testimony “could not possibly have changed the outc ome of the trial.” Id. We discern no error. 9

____________________________________________ 7 Further, we note the following. Sitting as a fact -finder, the PCRA court was permitted to reject Mr. Cain’s testimony based sole ly upon his counterfeiting conviction. See, e.g. , Commonwealth v. Emler , 903 A.2d 1273, 1276 (Pa. Super. 2006) (“When evaluating the credibility and weight of the evidence, the fact-finder is free to believe all, p art, or none of the evidence.”); Pa.R.E. 609(a).

8 Ms. Lunsford did not testify at Appellant’s trial but did testify at Appellant’s sentencing. As with Mr. Cain, there is no dispute regarding her availability or willingness, at the time of Appellant’s trial, t o testify in defense of her son. Sneed , 45 A.3d at 1108-09.

9 We note further that although Ms. Caraballo testif ied on cross-examination that, when Appellant approached her and asked her f or a kiss, she was close enough to Appellant to “smell the beer on his breat h,” this observation was not instrumental to her in-court identification of Appellant as the individual who later shot Mr. Terry. Notes of Testimony, 09/1 7/2007, at 56; see also (Footnote Continued Next Page)J-S55026-15

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Appellant contends that trial counsel was ineffecti ve for not challenging the out-of-court identification of Appellant by Mr. Terry and Ms. Caraballo. According to Appellant, the identification procedur e administered by police was unduly suggestive and thus created a substantia l risk for misidentification. See, e.g., Commonwealth v. Fisher , 769 A.2d 1116, 1126 (Pa. 2001). However, the PCRA court examined the photo array displayed to Mr. Terry and Ms. Caraballo, considere d the circumstances in which the out-of-court identifications occurred, an d concluded they were not suggestive. The record supports, and therefore, we accept the PCRA court’s conclusion. Ragan , 923 A.2d at 1170; Carr , 768 A.2d at 1166. Appellant’s contention is without merit. Finally, Appellant contends that the cumulative imp act of trial counsel’s errors warrants relief. This claim is de void of merit. “It is well established that no number of failed ineffectivenes s claims may collectively warrant relief if they do not do so individually.” Commonwealth v. Simpson , 112 A.3d 1194, 1205-06 (Pa. 2015) (recognizing th at the “cumulative prejudice” arising from otherwise valid claims may be

(Footnote Continued) _______________________ Notes of Testimony, 09/17/2007, at 43 (unequivocall y stating “Darryl was getting back in the truck[,] and [Appellant] just s tarted shooting.”). Moreover, Appellant’s consumption of alcoholic beve rages, or his abstinence therefrom, was not a subject of Mr. Terry’s testimo ny. See generally Notes of Testimony, 09/18-19/2007, at 32-65.J-S55026-15

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considered). Here, Appellant has failed to establi sh that his trial counsel committed any errors. 10 Accordingly, no relief is due. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/17/2015

____________________________________________ 10 We note that Appellant’s claim that counsel failed to solicit testimony regarding his professed abstinence from alcoholic b everages was arguably meritorious. To be clear, (1) Appellant’s mother a nd friend were not called upon to testify that Appellant refrains from drinki ng alcohol, and (2) it appears that they were willing and able to so testi fy. However, we stress that Appellant incurred no prejudice from the absence of this testimony at his trial. Moreover, as this is Appellant’s only c laim disposed on prejudice grounds, there is no accumulation of prejudice to c onsider. Therefore, “cumulative prejudice,” as recognized in Simpson , is irrelevant to Appellant’s appeal.