J-S42001-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

WILLIAM PHILIP BLACK, 

 Appellant No. 1504 WDA 2014 

Appeal from the PCRA Order August 27, 2014 

In the Court of Common Pleas of Fayette County 

Criminal Division at No(s): CP-26-CR-0000943-2009 

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ. 

MEMORANDUM BY SHOGAN, J.: FILED MAY 19, 2016

 Appellant, William Philip Black, appeals from the order entered on 

August 27, 2014, denying his petition filed pursuant to the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm. 

 A prior panel of this Court provided the following factual background 

relevant to Appellant’s underlying conviction: 

On July 15, 2009, the Commonwealth charged Appellant 

with criminal homicide and robbery—infliction of serious bodily 

injury, resulting from the April 20, 2009 murder of William 

Joseph Pierce (victim), and the theft of victim’s wallet and cell 

phone. (See Information, 7/15/09, at 1). 

The trial court aptly provided the evidence adduced at 

trial, as follows: 

____________________________________________ 

*

 Former Justice specially assigned to the Superior Court. 
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Evidence presented at trial held February 7 through

February 11, 2011, included the testimony of Jamie 

Douglas of Denbo, Fayette County, who stated that 

she knew both the victim and Appellant. Ms. Douglas

testified that earlier in April 2009, Appellant asked 

her to use her cell phone to call the victim to see

about his money. (See N.T., 2/09/11, at 423-24). 

She knew Appellant actually called the victim 

because his name came up in her contact list on the

phone, Appellant appeared to Ms. Douglas as 

“pissed”, and she overheard him tell the victim that 

he wanted his money. (See id.). 

Another witness, Tina Pitcock, testified that she 

knows Appellant as “Teeni” and thought he was one 

of her best friends. She told the jury that she also 

knew the victim, . . . and had been with him at 

Appellant’s house. On the day of the crime, April 20, 

2009, Appellant borrowed her car, a Mustang, from 

about 7:00 P.M. until he returned it at about 8:17 

P.M., when she then gave him a ride to the home of 

his cousin Brandi. (See N.T., 2/08/11, at 187-94). 

When she allowed Appellant to use her vehicle, Ms. 

Pitcock knew he was trying to collect money from the 

victim. (See id.). An hour or two after dropping 

Appellant off at Brandi’s residence, Ms. Pitcock went 

back to Brandi’s house to borrow either cigarettes or 

money to buy some. While there, she saw Appellant 

for the last time. 

Commonwealth witness April Krushak told the 

jury that she knows Appellant and was talking to him 

at approximately 7:30 P.M. on April 20, 2009, on her 

front porch when they saw the victim drive by. (See 

id. at 212). Appellant immediately left the porch and 

tried to get the victim to stop his car. (See id. at 

215). When the victim just kept going, Appellant got 

into [a] silver-colored Mustang and drove off in the 

same direction that the victim had been going. (See 

id. at 217). Ms. Krushak also testified that a few 

weeks before the day of the murder, she had been 

involved in a telephone call with Appellant, during

which he said he wanted to get in touch with the 

victim to “fuck him up” because the victim allegedly 
J-S42001-16 

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owed him money. (See id. at 219). When Ms. 

Krushak saw Appellant on the day of the crime, 

Appellant was wearing a black hooded sweatshirt 

and jeans. When she last saw the victim driving 

away in his green car and Appellant driving after him 

in the silver Mustang, both men were heading toward

Brownsville, Fayette County. (See id.). She heard 

the next day that somebody had been shot in 

Brownsville. (See id.). 

At some point later in the evening of April 

20th, Appellant arrived alone at the residence of 

Brandi Brooks, his cousin, on Water Street in 

Brownsville. He stayed there for a couple of hours 

and left at about 2:00 A.M. the following morning 

(April 21st). (See N.T., 2/07/11, at 62-66). A couple 

of days later Appellant called Ms. Brooks to tell her 

to make sure everything was cleaned up in her 

house. He also told her to throw her three garbage 

bags in a dumpster located in one of the housing 

projects some distance away. (See id. at 68-70). 

Appellant told his cousin that she needed to get rid 

of her garbage because of the drug paraphernalia in

it, and offered to babysit her children so she could 

drive the garbage bags to the project dumpster. Ms.

Brooks removed the garbage contained in the three 

black plastic bags from her residence, but put it into 

the trash can right outside instead of removing it to 

a dumpster as Appellant had instructed. (See id. at 

72). On April 24, 2009, Trooper Beverly Ashton went

to Brandi Brooks’ residence and obtained her consent 

to take the three garbage bags from her trash can. 

(See id. at 88-89). Trooper Ashton then drove the 

bags to the state police barracks and searched them, 

eventually finding therein the victim’s cell phone and 

his wallet which had within it his driver’s license. 

(See id. at 89-90). 

Pennsylvania State Police Trooper Christian 

Lieberum, the lead investigator on this case, 

questioned Appellant as to his whereabouts on April

20, 2009, and the answers Appellant provided 

differed in germane and relevant details from the 

statements given by the other witnesses. (See N.T., 
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2/09/11, at 450-53). Trooper Lieberum then 

obtained a search warrant for Appellant’s Brownsville 

residence, pursuant to which he found a dark grey 

hooded sweatshirt, which he confiscated. Said 

sweatshirt was later determined to belong to the 

victim. (See id. at 467-68). On April 28, 2009, the 

trooper served a search warrant on Appellant so as 

to take his palm prints and a bucchal swab. Trooper

Lieberum asked no questions during the execution of

the search warrant, but when Appellant asked him 

how the investigation was going, the officer told him 

he was in custody for the crime and he was getting 

the credit for it. Appellant then replied that you don’t 

get any credit for wasting a basehead. (See N.T., 

2/07/11, at 46-61). 

Alfred J. Schwoeble, a forensic technical 

advisor with the R.J.Lee Group, an analytical 

laboratory, testifying as an expert in gunshot residue 

analysis, told the jurors that one particle consistent 

with gunshot residue was found on the steering 

wheel of the silver Mustang. (See N.T., 2/08/11, at 

168, 170). More particles consistent with gunshot 

residue were found on the grey sweat shirt belonging 

to the victim as well as on his wallet. (See id. at 

171-72, 175-76). 

(Trial Court Opinion, 4/21/11, at 1-4 (some record citations 

omitted; record citation format provided)). 

Commonwealth v. Black, 108 WDA 2012, 53 A.3d 923 (Pa. Super. filed 

June 1, 2012) (unpublished memorandum at pages 1-4) (internal footnote 

omitted). On February 11, 2011, a jury convicted Appellant of seconddegree murder, and the trial court sentenced him to a term of life in prison. 

This Court affirmed Appellant’s judgment of sentence on June 1, 2012. Id. 

Appellant’s petition for allowance of appeal in the Pennsylvania Supreme 
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Court was denied on March 1, 2013. Commonwealth v. Black, 63 A.3d 

1242 (Pa. 2013). 

 Appellant filed a timely pro se PCRA petition on November 4, 2013, 

and the PCRA court appointed counsel. An amended PCRA petition was filed 

on April 1, 2014. The PCRA court held hearings on Appellant’s petition, and 

in an order filed on August 27, 2014, the PCRA court denied Appellant relief. 

This timely appeal followed. Both the PCRA court and Appellant have 

complied with Pa.R.A.P. 1925.1

 On appeal, Appellant raises the following issues for this Court’s 

consideration: 

1. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO CROSS 

EXAMINE THE FORENSIC GUNSHOT EXPERT? 

2. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILINT [sic] TO 

OBJECT TO THE INTRODUCTION OF THE EVIDENCE OF THE 

SWEATSHIRT WHICH WAS THE VICTIM’S AND NOT THE 

APPELLANT’S? 

3. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO 

REQUEST THE IDENTIFICATION OF THE CONFIDENTIAL 

INFORMANT WHOSE TIP LED TO THE SEARCH OF THE TRASH?

4. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO 

INTERVIEW OR CALL TO TESTIFY THE ALIBI WITNESS WHO 

WOULD HAVE TESTIFED [sic] THAT THE APPELLANT WAS WITH 

HIM DURING THE PERIOD THAT THE SHOOTING OCCURRED? 

____________________________________________ 

1

 It appears that the delay in disposing of this appeal was due to the PCRA 

court’s failure to forward the record to this Court. The Superior Court docket 

entries reflect that on December 17, 2014, this Court’s Prothonotary sent 

notice to the PCRA court that the record was delinquent. The record was 

received in Superior Court on January 15, 2016. 
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5. WAS IT PROSECUTORIAL MISCONDUCT FOR THE 

COMMONWEALTH TO INTRODUCE THE SWEATSHIRT OF THE 

VICTIM AS EVIDENCE, CAUSING THE JURY TO CONFUSE THE

ITEM WITH ONE TAKEN FROM THE RESIDENCE OF THE 

APPELLANT? 

Appellant’s Brief at 5.2

 Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether the PCRA 

court’s determination is free of legal error. Commonwealth v. Phillips, 31 

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001)). 

In Appellant’s first four issues, he raises claims of ineffective 

assistance of counsel. When considering an allegation of ineffective 

assistance of counsel, counsel is presumed to have provided effective 

representation unless the PCRA petitioner pleads and proves that: (1) the 

underlying claim is of arguable merit; (2) counsel had no reasonable basis 

for his or her conduct; and (3) Appellant was prejudiced by counsel’s action 

or omission. Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 

____________________________________________ 

2

 For purposes of our discussion, we have renumbered Appellant’s issues on 

appeal. 
J-S42001-16 

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1987). “In order to meet the prejudice prong of the ineffectiveness 

standard, a defendant must show that there is a ‘reasonable probability that 

but for counsel’s unprofessional errors, the result of the proceeding would 

have been different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. 

Super. 2012). A claim of ineffective assistance of counsel will fail if the 

petitioner does not meet any of the three prongs. Commonwealth v. 

Williams, 863 A.2d 505, 513 (Pa. 2004). “The burden of proving 

ineffectiveness rests with Appellant.” Commonwealth v. Rega, 933 A.2d 

997, 1018 (Pa. 2007). 

 In his first two issues, Appellant avers that trial counsel was ineffective 

for failing to cross-examine Alfred Schwoebel, the forensic gunshot expert 

(“the expert”). Appellant asserts that while the gunshot residue expert 

testified that residue was found on the victim’s sweatshirt and the steering 

wheel of the car Appellant drove, no residue was found on Appellant’s shirt. 

Appellant’s Brief at 7. The crux of Appellant’s argument in issues one and 

two is that, in Appellant’s opinion, it was not clear whether the jury believed 

the gunshot residue was from the victim’s sweatshirt or Appellant’s 

sweatshirt. Id. at 9. 

 The record reveals that at trial, the Commonwealth questioned the 

gunshot-residue expert about the steering wheel and a sweatshirt. N.T., 

2/7-11/11, at 168, 170. While the Commonwealth on direct examination did 

not reiterate that the sweatshirt belonged to the victim, and while counsel 
J-S42001-16 

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for Appellant did not cross examine the witness regarding ownership of the 

sweatshirt, we do not conclude that Appellant has established ineffective 

assistance of counsel. Appellant merely asserts that ownership of the 

sweatshirt was not clear. Appellant’s Brief at 9. 

 At the PCRA hearing, Attorney Michael Garofalo, Appellant’s trial 

counsel who cross-examined the expert, testified that he “didn’t even 

address the sweat shirt, because it was the victim’s sweat shirt that had 

been discussed.” N.T., 6/25/14, at 43. Attorney Garofalo stated that he 

focused on the Commonwealth’s attempt to introduce new evidence that had 

not been inventoried, the victim’s wallet, and the steering wheel of the car 

Appellant drove. Id. Counsel’s rationale for focusing the jury’s attention on 

the steering wheel was that if Appellant drove that car “you would think that 

the steering wheel would be covered [with residue] if [Appellant] had fired 

[a] gun with his bare hands and then drove away.” Id. at 44. There was, 

however, “minimal amounts” of residue on the steering wheel. Id. Thus, 

counsel was aware that the sweatshirt did not belong to Appellant and 

concluded there was no need to address that item further. Rather, as a 

matter of strategy, counsel opted to focus on the minimal amount of gun 

shot residue recovered from the car. 

After review, we conclude that despite Appellant’s opinion on this 

matter, he has failed to establish how he was prejudiced. In other words, 

Appellant has failed to establish that, if counsel had cross examined the 
J-S42001-16 

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expert as to ownership of the shirt, the result of the trial would have been 

different. Reed, 42 A.3d at 319. Moreover, while counsel for Appellant did 

not specifically ask the expert about ownership of the sweatshirt, the notes 

of testimony reveal that the sweatshirt, which was marked as 

Commonwealth Exhibit 12, was repeatedly identified as the victim’s shirt and 

admitted into evidence. N.T., 2/7-11/11, at 170, 292, 295, 467-468, and 

481. For these reasons, Appellant’s first two issues are meritless. 

Next, Appellant argues that trial counsel was ineffective for failing to 

request the identification of the confidential informant who led police to 

search Brandi Brook’s garbage where the victim’s wallet and phone were 

discovered. A review of Appellant’s Brief, however, reveals that he 

abandoned this issue on appeal as there is no argument on this issue in his 

brief. Therefore, it is waived. See Commonwealth v. Puksar, 951 A.2d 

267, 293-294 (Pa. 2008) (deeming a claim waived where the appellant failed 

to make or develop an argument). 

In his fourth issue, Appellant alleges that trial counsel was ineffective 

for failing to interview or call to testify an alibi witness. We disagree. 

In order to establish that counsel was ineffective for failing to call an 

alibi witness, the defendant must prove: the witness existed and was 

available; counsel was aware of or had a duty to know of the witness; the 

witness was willing and able to appear; and the proposed testimony was 

necessary to avoid prejudice to defendant. Commonwealth v. Thomas, 
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44 A.3d 12, 17 (Pa. 2012) (citing Commonwealth v. Morris, 684 A.2d 

1037, 1044 (Pa. 1996)). 

The PCRA court addressed this issue as follows: 

[Appellant assails] the failure of trial counsel to call 

Alexander R. Thompson as an alibi witness on [Appellant’s] 

behalf during the trial. At [PCRA] hearing on this matter, Mr. 

Thompson testified that he met [Appellant] for the first time on 

the evening of the homicide when [Appellant] came to the 

residence of Brandi Brooks, Mr. Thompson’s girlfriend, when he 

was babysitting her children while she went to bingo. PCRA 

Proceedings, July 15, 2014, p.7. At some time after the 

homicide, Trooper Lieberum talked to Mr. Thompson, and Mr. 

Thompson subsequently provided a written statement to the 

police. Id. p. 6. In the statement dated April 20, 2011, Mr. 

Thompson said that he was standing on the porch as Ms. Brooks 

was leaving for bingo around 6:30 or 6:45 P.M. when [Appellant] 

strolled onto the premises, stating his intention to play video 

games on the game consol[e] in Ms. Brooks’ home. Id. p. 9; See 

also Mr. Thompson’s pretrial statement. Under crossexamination at the hearing, Mr. Thompson conceded the 

possibility that Ms. Brooks left the house late that evening, as 

she herself testified at trial, but the bingo itself started at 7:00 

P.M. Id. p. 8. He further testified that he cannot remember 

anyone from the Fayette County Public Defender’s office calling 

him or contacting him. Id. p. 6. The only person he could 

remember talking to about [Appellant’s] presence in his 

residence on the evening of the killing was Trooper Lieberum. Id. 

p.12. 

Mr. Thompson’s testimony at the PCRA hearing is 

contradicted by other testimony elicited at that proceeding. 

Attorney Susan Ritz Harper of the Public Defender’s office, one of 

Petitioner’s trial attorneys, testified that she was aware of Mr. 

Thompson’s statement and spoke to [Appellant] about it before 

the trial. PCRA Proceedings Part One, June 25, 2014, p. 21. She 

absolutely denied that [Appellant] ever told her that he wanted 

Mr. Thompson to be called as a witness, pointing out that he was 

Ms. Brooks’ boyfriend, and she was testifying for the 

Commonwealth. Id. p. 32. Likewise, trial co-counsel, Michael 

Garofalo, did not remember [Appellant] ever saying that he 

wanted Alexander Thompson called to testify. Id. p. 41. In 
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addition, Mr. Thompson’s written statement relative to the time 

of [Appellant’s] arrival at Ms. Brooks’ house was an estimated 

time and, as Attorney Harper stated, was contradicted by Ms. 

Brooks, who testified at trial that she was late for bingo and 

missed the early bird game, which, as Attorney Harper went on 

to say, put her arriving at the bingo after 6:45 or even 7:00 P.M. 

Id. p. 32. Most importantly, [Appellant] himself had said that he 

never left his mother’s house where he had been prior to arrival 

at the Brooks house until after 7:00 P.M., and he walked from 

one residence to the other. Id. Attorney Harper further said that 

Mr. Thompson’s statement also placed [Appellant] in the kitchen 

of the Brooks house, where the garbage can was kept, which 

meant that he could have put something in it. Id. pp. 33-34. 

That garbage can was later placed outside and subsequently 

searched, and the victim’s wallet and cell phone were found 

therein. Id. Part of the defensive argument during the trial was 

that the garbage can was outside, and anyone could have put 

those incriminating items in it. Id. p. 34. The Court finds this 

issue of the alleged failure to call Alexander Thompson as an 

alibi witness at trial to be without merit in that defense counsel 

considered doing so, but had very good strategic reasons for 

deciding not to. 

PCRA Court Opinion, 8/27/14, at 5-7. 

We agree with the PCRA court. We cannot conclude that counsel was 

ineffective for failing to call Mr. Thompson as a witness and elicit testimony 

from an individual who could directly connect Appellant to the garbage can 

where the victim’s wallet and phone were found. Thus, Mr. Thompson’s 

testimony would not have prevented prejudice; rather, it would have caused 

prejudice to Appellant. Thomas, 44 A.3d at 17. Accordingly, Appellant is 

due no relief on this issue. 

Finally, Appellant avers that the Commonwealth committed 

prosecutorial misconduct when it introduced the victim’s sweatshirt because 

it caused the jury to confuse the item with one belonging to Appellant. 
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Appellant’s Brief at 13. Appellant baldly claims that the attorneys for the 

Commonwealth intentionally mislead the jury regarding ownership of the 

shirt. Id. 14. We are constrained to point out that an allegation of 

prosecutorial misconduct is not cognizable as an independent basis for relief 

under the PCRA.3 Commonwealth v. Sepulveda, 55 A.3d 1108, 1138 

(Pa. 2012); 42 Pa.C.S. § 9543(a)(2). Moreover, Appellant could have raised 

this issue on direct appeal but failed to do so; therefore, the issue is also 

waived. 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(b).4

For the reasons set forth above, we discern no error of law or abuse of 

discretion in the PCRA court’s decision. Accordingly, we affirm the order 

denying Appellant’s PCRA petition. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 5/19/2016 

____________________________________________ 

3

 Were this issue cognizable, we would conclude it is meritless. As noted 

above, the sweatshirt was properly referred to and identified as belonging to 

the victim, and we would conclude that there is no support for Appellant’s 

accusation. 

4

 “[A]n issue is waived if the petitioner could have raised it but failed to do 

so before trial, at trial, during unitary review, on appeal or in a prior state 

postconviction proceeding.” 42 Pa.C.S. § 9544(b).