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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERNEST TRICE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2636 EDA 2018

Appeal from the Order Entered August 9, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0006441-2010

BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 16, 2019

Ernest Trice (“Appellant”) appeals from the order dismissing his petition 

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541–9546. After careful review, we affirm.

On direct appeal, this Court summarized the facts underlying Appellant’s 

conviction as follows:

On February 22, 2010, [Appellant] used an accelerant to set fire 

to a residence at 101 East Collum Street in Philadelphia. The 

victim was inside the residence at the time of the fire, and he died 

from smoke inhalation. On March 11, 2010, police interviewed 

Appellant who admitted he had started the fire in an attempt to 

destroy the “stash” of a rival drug dealer. Appellant denied 

knowing that the victim was inside the residence when Appellant 

started the fire. 

Commonwealth v. Trice, 100 A.3d 305, 2178 EDA 2012 (Pa. Super. filed 

March 12, 2014) (unpublished memorandum). 
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On March 7, 2012, a jury found Appellant guilty of second-degree 

murder, arson, and causing a catastrophe.1 Appellant was sentenced the 

same day to life imprisonment without the possibility of parole for seconddegree murder, ten to twenty years of incarceration for the arson conviction, 

and three and one-half years to seven years of incarceration for the causing 

catastrophe conviction, to be served concurrently. Appellant filed a postsentence motion, which the trial court denied. Appellant filed a timely appeal. 

This Court, sua sponte, found that the imposition of a sentence for the crime 

of arson, which was a predicate offense for Appellant’s murder conviction, 

constituted a violation of the Double Jeopardy Clause and an illegal sentence. 

Id. at 23–24. Thus, on March 12, 2014, this Court vacated Appellant’s 

sentence for arson, but affirmed the judgment of sentence in all other 

respects. Id. at 24. Appellant filed a petition for allowance of appeal on April 

10, 2014, which our Supreme Court denied on October 1, 2014. 

Appellant filed the instant, timely PCRA petition, his first, on May 1, 

2015. PCRA counsel was appointed on April 15, 2016, and he filed an 

amended petition on June 25, 2016. Therein, Appellant averred that he was 

eligible for post-conviction relief due to the ineffectiveness of his trial counsel 

and sought time and funds to conduct discovery relating to the 

availability/existence of alibi witnesses Appellant believed were available to 

____________________________________________

1 18 Pa.C.S. §§ 2502(b), 3301, and 3302, respectively. 
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testify on his behalf. PCRA Petition, 6/25/16.2 The Commonwealth filed a 

response and on December 27, 2017, the PCRA court advised Appellant that 

it was going to deny his PCRA petition without a hearing on January 25, 2018, 

pursuant to Pa.R.Crim.P. 907. Order, 12/27/17. Appellant filed a response,

and the PCRA court denied Appellant’s PCRA petition on August 9, 2018. 

Order, 8/9/18. Appellant filed a timely notice of appeal on September 6, 2018. 

Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925. 

On appeal, Appellant presents the following question for our review,

verbatim:

I. Did the PCRA Court err when it dismissed without a hearing 

where the Defendant pled, and would have been able to prove, 

that he was entitled to PCRA relief?

Appellant’s Brief at 3. 

When reviewing the propriety of the denial of a PCRA petition, we 

apply the following standard and scope of review: “[A]n appellate 

court reviews the PCRA court’s findings to see if they are 

supported by the record and free from legal error. The court’s 

scope of review is limited to the findings of the PCRA court viewed 

in the light most favorable to the prevailing party.”

Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 

2009) (quoting Commonwealth v. Hammond, 953 A.2d 544, 

556 (Pa. Super. 2008) (citation omitted) ). “Because most PCRA 

appeals involve questions of fact and law, we employ a mixed 

standard of review. We defer to the PCRA court’s factual findings 

and credibility determinations supported by the record. In 

contrast, we review the PCRA court’s legal conclusions de 

novo.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 

779 (Pa. Super. 2015) (citations omitted).

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2 The PCRA court awarded Appellant $1,000.00 to investigate possible alibi 

witnesses on July 12, 2016, but that investigation failed to produce any 

possible alibi witnesses. N.T., 12/27/17, at 3, 9. 
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Commonwealth v. Sarvey, 199 A.3d 436, 445–446 (Pa. Super. 2018). To 

the extent Appellant argues that the PCRA court erred in failing to hold a 

hearing on his PCRA petition, this Court notes that the PCRA court has 

discretion to dismiss a petition without a hearing where “there are no genuine 

issues of material fact, the petition is not entitled to post-conviction collateral 

relief, and no legitimate purpose would be served by further proceedings.” 

Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (citation 

omitted). In order to obtain a reversal of the court’s decision to dismiss 

without a hearing, “an appellant must show that he or she raised a genuine 

issue of fact which, if resolved in his favor, would have entitled him to relief 

or that the court otherwise abused its discretion in denying a hearing.” Id. 

In support of his appeal, Appellant argues that his trial counsel was 

ineffective for failing to make an investigation into possible witnesses that 

Appellant avers “might provide a complete defense.” Appellant’s Brief at 8. 

Specifically, Appellant posits trial counsel was “pointed in a direction” of a 

possible witness who might have provided an alibi for Appellant, but counsel 

failed to locate that person and failed to hire an investigator to locate the 

possible witness. Id. Appellant points to a January 23, 2012 hearing wherein 

trial counsel stated that he had spoken to a possible witness who then changed 

her address or moved. Id. Trial counsel did not hire an investigator to locate

the potential witness after she changed her address. Id. Ultimately, Appellant 

argues that because his trial counsel failed to hire an investigator to find the 
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possible witness, Appellant was forced to withdraw his alibi defense and his 

counsel was ineffective. Id. at 9. 

When reviewing a claim of ineffectiveness of counsel, it is well settled 

that:

[c]ounsel is presumed effective, and to rebut that 

presumption, the PCRA petitioner must demonstrate 

that counsel’s performance was deficient and that 

such deficiency prejudiced him. In Pennsylvania, we 

have refined the Strickland [v. Washington, 466 

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) 

] performance and prejudice test into a three-part 

inquiry. Thus, to prove counsel ineffective, the 

petitioner must show that: (1) his underlying claim is 

of arguable merit; (2) counsel had no reasonable 

basis for his action or inaction; and (3) the petitioner 

suffered actual prejudice as a result. See

[Commonwealth v.] Pierce [, 515 Pa. 153, 527 

A.2d 973 (1987) ]. If a petitioner fails to prove any of 

these prongs, his claim fails. Generally, counsel’s 

assistance is deemed constitutionally effective if he 

chose a particular course of conduct that had some 

reasonable basis designed to effectuate his client’s 

interests. Where matters of strategy and tactics are 

concerned, a finding that a chosen strategy lacked a 

reasonable basis is not warranted unless it can be 

concluded that an alternative not chosen offered a 

potential for success substantially greater than the 

course actually pursued. To demonstrate prejudice, 

the petitioner must show that there is a reasonable 

probability that, but for counsel’s unprofessional 

errors, the result of the proceedings would have been 

different. A reasonable probability is a probability that 

is sufficient to undermine confidence in the outcome 

of the proceeding.

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

2014) (internal brackets and some internal citations omitted). 

Moreover, “[a] court is not required to analyze the elements of an 

ineffectiveness claim in any particular order of priority; instead, if 
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a claim fails under any necessary element of the ineffectiveness 

test, the court may proceed to that element first.”

Commonwealth v. Tharp, 62 Pa. 673, 101 A.3d 736, 747 

(2014)(citation omitted).

Sarvey, 199 A.3d at 452. Further, in order to prove counsel ineffective for 

failing to call or investigate a witness, “[an] appellant must demonstrate [1] 

the names and whereabouts of the witnesses, [2] the substance of their 

testimony, [3] how they would have appreciably strengthened his defense ... 

[and 4] that his trial counsel knew of the existence of the witnesses who 

should have been called.” Commonwealth v. Hunter, 554 A.2d 550, 558 

(Pa. Super. 1989) (citations omitted).

As discussed above, compliance with Strickland requires Appellant to 

prove that his underlying claim is of arguable merit, that his trial counsel had 

no reasonable basis for his action, and that he suffered prejudice as a result. 

Commonwealth v. Daniels, 104 A.3d 267, 281 (Pa. 2014). Appellant does 

not engage in any meaningful discussion or analysis of the above factors, and 

only references that counsel believes “prejudice is there” because the lack of 

investigation “foreclosed on [Appellant] his opportunity to come forward with 

witnesses at the earliest possible time.” Appellant’s Brief at 10. Moreover, 

Appellant cites only a single case in the argument section of his brief, 

Commonwealth v. Stewart, 84 A.3d 701 (Pa. Super. 2013), as standing for 

the proposition that counsel can be found ineffective for failing to interview an 

alibi witness and that an appellant is not required to demonstrate that the 
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witness would be found credible by a jury to establish prejudice. 3 Appellant’s 

Brief at 10. 

Preliminarily, we note that Appellant does not provide the names or any 

other additional information about the alleged witnesses who his trial counsel 

failed to investigate or locate. This is despite the fact that the PCRA court 

provided Appellant with the funds to hire a private investigator to locate any 

purported witnesses, alibi or otherwise. Trial Court Opinion, 12/13/18, at 5. 

Indeed, Appellant references only an unnamed witness and alleges that his 

trial counsel was ineffective for failing to locate this unnamed witness or send 

a detective to locate the individual. Appellant’s Brief at 8.4 After reviewing 

the record, this Court is unable to determine any information about the alleged 

alibi witness, beyond her name, Ms. Mathis, and that Appellant intended to

present her as an alibi witness. N.T., 2/23/12, at 7. “Where a defendant

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3 Stewart is factually distinguishable and does not provide support for the 

instant appeal. In Stewart, the appellee argued that his trial counsel was 

ineffective for failing to interview and present the alibi testimony of his fiancée. 

Specifically, the appellee provided the court with the name, location, and 

substance of his alibi witness’s testimony. Stewart, 84 A.3d at 705. 

Moreover, the witness was present in the courtroom for the appellee’s trial. 

Id. Finally, the record reflected that the appellee provided his trial counsel 

with the witness’s phone number and address prior to trial. Id. 

4

In making this argument, Appellant cites to notes of testimony dated January 

23, 2012. The certified record does not contain notes of testimony from that 

date. However, after review, we believe Appellant intended to cite the notes 

of testimony dated February 23, 2012, which appear to contain the 

information Appellant referenced in his brief. 
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claims that counsel was ineffective for failing to call a particular witness, we 

require proof of that witness’s availability to testify, as well as an adequate 

assertion that the substance of the purported testimony would make a 

difference in the case.” Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 

2008). To the extent Appellant is arguing that the trial counsel was ineffective 

for failing to call Ms. Mathis, Appellant has failed to provide any information 

about her location, the substance of her testimony, or even identify her by 

name in his brief submitted to this Court. 

Moreover, a review of the record makes clear that Appellant is unable 

to prove, inter alia, that he was prejudiced by counsel’s failure to investigate 

or call the alleged witnesses. In order to prove prejudice, Appellant 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. King, 57 A.3d 607, 613 (Pa. 2012) (quoting Strickland, 

466 U.S. at 694)). “A reasonable probability is a probability that is sufficient 

to undermine confidence in the outcome of the proceeding.” Id. Although 

failing to conduct an investigation can be per se ineffectiveness, “[a] showing 

of prejudice ... is still required. Stewart, 84 A.3d at 712. 

In the instant case, Appellant confessed to setting fire to the residence 

that ultimately killed the victim. N.T., 3/5/12, at 37–41. He was informed of 

his rights prior to police questioning pursuant to Miranda v. Arizona, 384 

U.S. 436 (1966), and he signed a paper memorializing the same before he 
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gave his statement to Detective Phillip Nordo, one of the detectives assigned 

to the case. N.T., 3/5/12, at 30–33. Finally, Detective Nordo gave Appellant 

a copy of the statement after Appellant finished speaking with Detective Nordo

and Appellant signed it, representing that what he told the detective was 

accurately reflected in the written statement. Id. at 47. Additionally, the 

Commonwealth presented the testimony of Ira Young, an individual who was

homeless and stayed at 101 East Collum Street at the time Appellant started 

the fire. N.T., 3/6/12, at 6–8. Mr. Young testified that he lived on the first 

floor of the Collum Street home, and the victim stayed on the second floor. 

Id. at 11. Mr. Young knew and recognized Appellant “from the streets.” Id. 

at 12. Mr. Young testified that on the day of the fire, he witnessed Appellant 

running away from the fire, holding a container, and that Appellant ran past 

him and told him “he’d gotten his revenge.” Id. at 15. Given the fact that 

Appellant confessed to starting the fire and the additional evidence presented 

by the Commonwealth, Appellant is unable to show that he was prejudiced by 

his trial counsel’s failure to call one or more unidentified witnesses. 

Finally, we note that even if Appellant had been able to show some sort 

of prejudice based on trial counsel’s failure to investigate or call certain 

witnesses, he would be unable to show that counsel lacked a reasonable basis 

for that decision. Indeed, the record in the instant case is replete with 

instances of Appellant’s attempt to interfere with possible witnesses. During 

a pretrial sidebar/conference between Appellant’s trial counsel and the 
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prosecutor, trial counsel informed the trial court that he was aware of the 

existence of audio tapes of prison telephone conversations between Appellant 

and an individual, Alpha Omega Johnson. Allegedly, Appellant told Mr. 

Johnson that he needed to ensure any possible alibi witnesses spoke with 

Appellant before speaking with his trial counsel. N.T., 2/22/12 (part 2), at 

156. Further, Appellant and another individual were discussing potential 

problems with another possible alibi witness, Ebony Matthews, who is the 

mother of Appellant’s children, and Appellant made threatening statements 

toward Ms. Matthews and her current boyfriend. Id. at 157-158. During that 

sidebar/conference, the Commonwealth made it clear that if trial counsel put 

Ms. Matthews on the stand, the Commonwealth would have utilized the tapes 

to impeach her testimony. Id. at 158, 159. 

Appellant has neither identified a single witness that his trial counsel 

failed to call or investigate nor established any prejudice arising from this 

alleged failure. Therefore, we ascertain no abuse of discretion in the PCRA 

court’s conclusion that Appellant’s PCRA should be dismissed without a 

hearing. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/19