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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 pursuan t to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We a ffirm. A prior panel of this Court provided the following factual background relevant to Appellant’s underlying conviction:

On July 15, 2009, the Commonwealth charged Appellan t with criminal homicide and robbery—infliction of ser ious bodily injury, resulting from the April 20, 2009 murder of William Joseph Pierce (victim), and the theft of victim’s w allet and cell phone. ( See Information, 7/15/09, at 1). The trial court aptly provided the evidence adduced at trial, as follows:

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* Former Justice specially assigned to the Superior Court.J-S42001-16

- 2 - 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 ask ed 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 tha t 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 als o knew the victim, . . . and had been with him at Appellant’s house. On the day of the crime, April 2 0, 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 th e victim. ( See id. ). An hour or two after dropping Appellant off at Brandi’s residence, Ms. Pitcock we nt 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 hi m at approximately 7:30 P.M. on April 20, 2009, on he r 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 go t into [a] silver-colored Mustang and drove off in th e 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 allegedl yJ-S42001-16

- 3 - 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 h im 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 h er 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 ri d of her garbage because of the drug paraphernalia in it, and offered to babysit her children so she coul d 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 i nto 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 consen t 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.,J-S42001-16

- 4 - 2/09/11, at 450-53). Trooper Lieberum then obtained a search warrant for Appellant’s Brownsvil le 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 h im 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 resi due analysis, told the jurors that one particle consist ent 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 belongin g 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 A ppellant of seconddegree murder, and the trial court sentenced him to a term of life in prison. This Court affirmed Appellant’s judgment of sentenc e on June 1, 2012. Id

. Appellant’s petition for allowance of appeal in the Pennsylvania SupremeJ-S42001-16

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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 P CRA 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 cour t denied Appellant relief. This timely appeal followed. Both the PCRA court an d Appellant have complied with Pa.R.A.P. 1925. 1 On appeal, Appellant raises the following issues f or this Court’s consideration: 1. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO CRO SS 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 WI TH HIM DURING THE PERIOD THAT THE SHOOTING OCCURRED?

____________________________________________ 1 It appears that the delay in disposing of this app eal 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 Cou rt’s Prothonotary sent notice to the PCRA court that the record was delinq uent. The record was received in Superior Court on January 15, 2016.J-S42001-16

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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 re lief 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 findin gs 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 allegat ion of ineffective assistance of counsel, counsel is presumed to have provided effective representation unless the PCRA petitioner pleads an d 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 preju diced 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 th e ineffectiveness standard, a defendant must show that there is a ‘re asonable 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 pro ving ineffectiveness rests with Appellant.” Commonwealth v. Rega , 933 A.2d 997, 1018 (Pa. 2007). In his first two issues, Appellant avers that tria l counsel was ineffective for failing to cross-examine Alfred Schwoebel, the forensic gunshot expert (“the expert”). Appellant asserts that while the g unshot residue expert testified that residue was found on the victim’s sw eatshirt and the steering wheel of the car Appellant drove, no residue was fo und on Appellant’s shirt. Appellant’s Brief at 7. The crux of Appellant’s ar gument in issues one and two is that, in Appellant’s opinion, it was not cle ar whether the jury believed the gunshot residue was from the victim’s sweatshir t 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 v ictim, and while counselJ-S42001-16

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for Appellant did not cross examine the witness reg arding ownership of the sweatshirt, we do not conclude that Appellant has e stablished ineffective assistance of counsel. Appellant merely asserts th at ownership of the sweatshirt was not clear. Appellant’s Brief at 9. At the PCRA hearing, Attorney Michael Garofalo, Ap pellant’s trial counsel who cross-examined the expert, testified th at 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 G arofalo 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 atte ntion 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 steeri ng wheel. Id . Thus, counsel was aware that the sweatshirt did not belon g to Appellant and concluded there was no need to address that item fu rther. Rather, as a matter of strategy, counsel opted to focus on the m inimal 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 preju diced. In other words, Appellant has failed to establish that, if counsel had cross examined theJ-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 Appe llant 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, 2 92, 295, 467-468, and 481. For these reasons, Appellant’s first two issu es are meritless. Next, Appellant argues that trial counsel was ineff ective for failing to request the identification of the confidential info rmant who led police to search Brandi Brook’s garbage where the victim’s wa llet and phone were discovered. A review of Appellant’s Brief, however , reveals that he abandoned this issue on appeal as there is no argum ent 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 whe re the appellant failed to make or develop an argument). In his fourth issue, Appellant alleges that trial c ounsel was ineffective for failing to interview or call to testify an alib i witness. We disagree. In order to establish that counsel was ineffective for failing to call an alibi witness, the defendant must prove: the witnes s existed and was available; counsel was aware of or had a duty to kn ow of the witness; the witness was willing and able to appear; and the pro posed testimony was necessary to avoid prejudice to defendant. Commonwealth v. Thomas ,J-S42001-16

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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 [Appel lant’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 t o the residence of Brandi Brooks, Mr. Thompson’s girlfrie nd, when he was babysitting her children while she went to bing o. 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 t o play video games on the game consol[e] in Ms. Brooks’ home. Id . p. 9; See also Mr. Thompson’s pretrial statement. Under cross

examination at the hearing, Mr. Thompson conceded t he possibility that Ms. Brooks left the house late tha t evening, as she herself testified at trial, but the bingo itsel f started at 7:00 P.M. Id. p. 8. He further testified that he cannot remember anyone from the Fayette County Public Defender’s of fice 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 pr oceeding. Attorney Susan Ritz Harper of the Public Defender’s office, one of Petitioner’s trial attorneys, testified that she wa s 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 th at he wanted Mr. Thompson to be called as a witness, pointing ou t that he was Ms. Brooks’ boyfriend, and she was testifying for t he 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. InJ-S42001-16

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addition, Mr. Thompson’s written statement relative to the time of [Appellant’s] arrival at Ms. Brooks’ house was a n estimated time and, as Attorney Harper stated, was contradict ed by Ms. Brooks, who testified at trial that she was late fo r bingo and missed the early bird game, which, as Attorney Harp er 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 ha d said that he never left his mother’s house where he had been pri or to arrival at the Brooks house until after 7:00 P.M., and he w alked from one residence to the other. Id. Attorney Harper fur ther 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. p p. 33-34. That garbage can was later placed outside and subse quently searched, and the victim’s wallet and cell phone we re 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 Cou rt finds this issue of the alleged failure to call Alexander Thom pson as an alibi witness at trial to be without merit in that defense counsel considered doing so, but had very good strategic re asons for deciding not to. PCRA Court Opinion, 8/27/14, at 5-7. We agree with the PCRA court. We cannot conclude t hat counsel was ineffective for failing to call Mr. Thompson as a w itness and elicit testimony from an individual who could directly connect Appel lant to the garbage can where the victim’s wallet and phone were found. Th us, Mr. Thompson’s testimony would not have prevented prejudice; rathe r, 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 comm itted prosecutorial misconduct when it introduced the vic tim’s sweatshirt because it caused the jury to confuse the item with one bel onging to Appellant.J-S42001-16

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Appellant’s Brief at 13. Appellant baldly claims t hat the attorneys for the Commonwealth intentionally mislead the jury regardi ng ownership of the shirt. Id . 14. We are constrained to point out that an alle gation of prosecutorial misconduct is not cognizable as an in dependent 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, App ellant could have raised this issue on direct appeal but failed to do so; th erefore, 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 erro r of law or abuse of discretion in the PCRA court’s decision. According ly, 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 i s 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, o n appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b).