J-S24035-19

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN DANIELS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1131 EDA 2018

Appeal from the PCRA Order April 2, 2018

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

No(s): CP-51-CR-0012667-2011

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: Filed June 10, 2019

Appellant Brian Daniels appeals from the order entered by the Court of 

Common Pleas of Philadelphia County denying Appellant’s petition pursuant 

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 

Counsel has filed a petition to withdraw and an accompanying brief. After 

careful review, we affirm the PCRA court’s order and grant counsel’s petition 

to withdraw.

On direct appeal, the trial court summarized the factual background of 

this case as follows:

On July 10, 2011, an argument occurred between neighbors 

Latisha Dudley and Thea Knight on the 4500 block of Hurley 

Street. Latisha Dudley and her daughter confronted Thea Knight 

about a parking ticket Dudley received, blaming Knight for the 

ticket and insisting she pay it. Knight then went back inside her 

house and called her boyfriend, Troy Taylor (a.k.a. Lionel Tyson). 

Taylor returned home and also argued with Dudley. Dudley 

threatened to break the windows and slash the tires of Taylor and 
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Knight’s van. Taylor threatened to retaliate by pouring sugar in 

her gas tank.

The following day, Taylor and Knight returned home from a 

doctor’s appointment to find their van had been vandalized. A tire 

had been slashed, the front passenger window was broken, and 

the radio console was missing. Knight brought her children inside, 

and Taylor walked to the end of the block to confront Appellant, 

Dudley’s boyfriend. In the course of the confrontation, Appellant 

attempted to hit Taylor in the face, but missed. Taylor then swung 

at and hit Appellant. The fight was quickly broken up by other 

men in the neighborhood, and Taylor returned to his van to inspect 

the damages. Knight watched the altercation from her house and 

saw Appellant walking back to his house with blood around his 

eye. When Appellant exited the house again[,] he was holding a 

black 9-millimeter [(9-mm)] gun. Taylor testified that as 

Appellant was walking down the front steps, he was loading bullets 

into the gun. Appellant lifted the gun, took a step towards Taylor, 

and then fired at Taylor. Taylor ducked behind the van and moved 

around it to avoid [being] shot. Appellant followed him around 

the van and fired his gun two more times at Taylor. Taylor was 

not struck by any of the bullets. After firing three shots, Appellant 

returned to his house. Knight witnessed this from her home 

across the street and called the police.

Officer William Stephan and his partner responded to the 

report of a shooting on the 4500 Block of Hurley Street at 6:45 

p.m. Taylor was still on the street and met the officers to speak 

with them. Officer Stephan testified that when they initially spoke 

to Taylor, he was “very frazzled and excited.” Taylor described 

the incident and the individual who had shot at him. Officer 

Stephan found two fired shell casings on the top of Taylor’s van, 

and observed damage to the vehicle. Upon learning that Appellant 

had returned to his house following the shooting, Officer Stephan 

and his partner secured the house. Officer Stephan called his 

supervisor and suggested the premises be held for a barricade.

SWAT officers arrived at the scene and began establishing a 

barricade around Appellant’s house at about 7:00 p.m. At 

approximately 7:35 p.m., they entered the building. However, 

nobody was found inside the home at that time. No weapons were 

found inside the home by SWAT.
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Detective Michael Alers was assigned to investigate the 

shooting and also arrived at the scene at about 7:00 that evening. 

He took photographs of the scene and recovered fired 9-[mm] 

casings. In the course of his investigation into the shooting, 

Detective Alers also applied for two search warrants: one for a 

2000 Ford SUV registered to Latisha Dudley, and another for a 

Lexus registered to Appellant. From the vehicle registered to 

Latisha Dudley, Detective Alers recovered the vehicle’s insurance 

information, which listed both Ms. Dudley’s and Appellant’s 

names, the vehicle registration, several traffic citations, and a box 

of ammunition. The box of ammunition contained eleven live

rounds and ten capped rounds (also described as blanks). The 

box was labeled “38 special” but contained “assorted ammo” 

according to Detective Alers.

At trial, Appellant presented an alibi witness, Thomas 

Daniel, who worked with Appellant at the time of the shooting. 

Mr. Daniel also testified that he has been dating Appellant’s 

mother for “fifteen or so years.” Thomas Daniel works in air 

conditioning and refrigeration, and at the time of the shooting he 

had been working with Appellant and helping him secure a job in 

the same field. At trial, Mr. Daniel testified that on the day the 

shooting occurred, Appellant was in the Bronx, New York, 

accompanying him on several jobs. He referred to two job tickets, 

which listed work being done on July 11, 2011, from 3:00 to 5:35 

in the afternoon. Mr. Daniel testified that Appellant was with him 

during this time period in the Bronx. Mr. Daniel also testified that 

he did not see Appellant after 6:45 that evening until he woke up 

the next morning. Latisha Dudley, Appellant’s girlfriend, also 

testified that she had dropped him off at the train station the day 

before the shooting to go to New York.

Mr. Daniel was interviewed by Detective Alers on September 

10, 2013. At the time he stated he had no documentation to 

reflect that Appellant had made repairs or been present in New 

York that day. He stated that since he worked with several people 

who were “off the books,” he did not keep attendance records. 

Latisha Dudley also gave a statement to Detective Alers on 

September 13, 2013. She had not spoken to the detective about 

taking Appellant to the train station prior to this statement.

Trial Court Opinion (T.C.O.), 9/15/15, at 3-6 (citations to the record omitted).
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On July 11, 2014, the trial court convicted Appellant of aggravated 

assault, simple assault, recklessly endangering another person (REAP), 

possession of an instrument of crime (PIC), carrying a firearm without a 

license, carrying a firearm in public in Philadelphia, and possession of a firearm 

by a person prohibited. On December 11, 2014, the trial court imposed an 

aggregate term of four to eight years’ imprisonment to be followed by five 

years’ probation. Appellant filed a timely post-sentence motion, which was 

denied by operation of law. On August 9, 2016, this Court affirmed the 

judgment of sentence. Appellant did not file a petition for allowance of appeal 

with the Supreme Court.

On December 23, 2016, Appellant filed a pro se PCRA petition. The 

PCRA court appointed Appellant counsel, who filed an amended petition on 

Appellant’s behalf. On February 7, 2018, the PCRA court issued notice of its 

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. 

Appellant did not respond to the Rule 907 notice. In an order dated March 

28, 2018 and docketed April 2, 2018, the PCRA court dismissed Appellant’s 

petition. This timely appeal followed. Appellant’s counsel filed notice of his 

intent to file an Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4) in 

lieu of a statement of errors complained of on appeal.

Our standard of review is as follows:

When reviewing the denial of a PCRA petition, we must determine 

whether the PCRA court's order is supported by the record and 

free of legal error. Generally, we are bound by a PCRA court's 

credibility determinations. However, with regard to a court's legal 

conclusions, we apply a de novo standard.
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Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).1

As an initial matter, we must first review counsel’s petition to withdraw.

Counsel petitioning to withdraw from PCRA representation must 

proceed ... under [Commonwealth v. Turner, 518 Pa. 491, 544 

A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 

(Pa.Super. 1988)] and ... must review the case zealously. 

Turner/Finley counsel must then submit a “no-merit” letter to 

the trial court, or brief on appeal to this Court, detailing the nature 

and extent of counsel's diligent review of the case, listing the 

issues which petitioner wants to have reviewed, explaining why 

and how those issues lack merit, and requesting permission to 

withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no 

merit” letter/brief; (2) a copy of counsel's petition to withdraw; 

and (3) a statement advising petitioner of the right to proceed pro 

se or by new counsel.

Where counsel submits a petition and no-merit letter that ... 

satisfy the technical demands of Turner/Finley, the court — trial 

court or this Court — must then conduct its own review of the 

merits of the case. If the court agrees with counsel that the claims 

are without merit, the court will permit counsel to withdraw and 

deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting 

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).

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1 We note that any PCRA petition, “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final.” 42 

Pa.C.S.A. § 9545(b)(1). Appellant’s sentence became final on September 8, 

2016, when the thirty-day appeal period expired for seeking review with our 

Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3) (providing that a “judgment 

becomes final at the conclusion of direct review, including discretionary review 

in the Supreme Court of the United States and the Supreme Court of 

Pennsylvania, or at the expiration of time for seeking the review”); Pa.R.A.P. 

1113(a). Thus, Appellant filed a timely petition on December 23, 2016.
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We note that defense counsel has filed his petition to withdraw on the 

basis of frivolity pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.Ed.2d 493 (1967). Although Anders briefs are filed by counsel 

who wish to withdraw on direct review, we will accept counsel’s Anders brief 

in lieu of a Turner-Finley letter, as an Anders brief provides greater 

protection to criminal defendants. See Commonwealth v. Fusselman, 866 

A.2d 1109, 1111 n.3 (Pa.Super. 2004). 

After reviewing the record and counsel’s petition to withdraw, we find 

that PCRA counsel has complied with the technical requirements of Turner

and Finley, supra. In his appellate brief, PCRA counsel detailed the nature 

and extent of his review, listed numerous issues of arguable merit, and 

explained why he believed each claim was frivolous. Counsel indicated that 

after his own independent review of the record, he could not identify any 

meritorious issues that he could raise on Appellant’s behalf. Moreover, 

counsel attached his letter to Appellant specifically indicating that he believed 

that the appeal was wholly frivolous for the reasons set forth in his brief and 

notifying him of his right to raise additional points for consideration by 

proceeding pro se or with the assistance of privately retained counsel. See 

Commonwealth v. Muzzy, 141 A.3d 509, 511 (Pa.Super. 2016).

We now consider the issues PCRA counsel presents in his brief to 

ascertain whether any of the claims entitles Appellant to relief. PCRA counsel 
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raises eleven claims of the ineffectiveness of counsel.2 In reviewing claims of 

ineffectiveness of counsel, we are guided by the following principles:

It is well-established that counsel is presumed to have 

provided effective representation unless the PCRA petitioner 

pleads and proves all of the following: (1) the underlying 

legal claim is of arguable merit; (2) counsel's action or 

inaction lacked any objectively reasonable basis designed to 

effectuate his client's interest; and (3) prejudice, to the 

effect that there was a reasonable probability of a different 

outcome if not for counsel's error. See Commonwealth v. 

Pierce, 515 Pa. 153, 527 A.2d 973, 975–76 (1987); 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 

80 L.Ed.2d 674 (1984). The PCRA court may deny an 

ineffectiveness claim if “the petitioner's evidence fails to 

meet a single one of these prongs.” Commonwealth v. 

Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000).... 

Because courts must presume that counsel was effective, it 

is the petitioner's burden to prove otherwise. See Pierce, 

supra; Commonwealth v. Holloway, 559 Pa. 258, 739 

A.2d 1039, 1044 (1999).

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2 We note PCRA counsel’s brief does not comply with two of our rules of 

appellate procedure. While PCRA counsel acknowledges in the discussion 

portion of his brief that Appellant raised eleven ineffectiveness claims in his 

petitions, PCRA counsel’s statement of the issues presented in the appellate 

brief does not list any of these specific arguments. Our rules of appellate 

procedure provide that “the statement of the questions involved must state 

concisely the issues to be resolved, expressed in the terms and circumstances 

of the case but without unnecessary detail.” Pa.R.A.P. 2116(a).

Moreover, counsel does not provide an organized discussion of 

Appellant’s numerous claims, but reviews them in a random order in one 

analysis section without defined sections for each claim. Our rules of appellate 

procedure specifically require that the argument section of the brief “shall be 

divided into as many parts as there are questions to be argued; and shall have 

at the head of each part--in distinctive type or in type distinctively displayed-

-the particular point treated therein, followed by such discussion and citation 

of authorities as are deemed pertinent.” Pa.R.A.P. 2119. Nevertheless, as 

PCRA counsel’s non-compliance with the rules of appellate procedure does not 

prevent this Court from conducting meaningful review of the appeal, we will 

review counsel’s appellate brief in this case.
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[Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d 

310, 321 (2007);] see also Commonwealth v. Hall, 582 Pa. 

526, 537, 872 A.2d 1177, 1184 (2005) (stating an appellant's 

failure to satisfy any prong of the Pierce ineffectiveness test 

results in a failure to establish the arguable merit prong of the 

claim of ineffectiveness).

Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018).

First, Appellant claimed trial counsel was ineffective in failing to litigate 

a motion to dismiss based on Pa.R.Crim.P. 600.

In evaluating Rule [600] issues, our standard of review of a trial 

court's decision is whether the trial court abused its discretion. 

Judicial discretion requires action in conformity with law, upon 

facts and circumstances judicially before the court, after hearing 

and due consideration. An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill will, 

as shown by the evidence or the record, discretion is abused.

The proper scope of review is limited to the evidence on the record 

of the Rule [600] evidentiary hearing, and the findings of the 

[trial] court. An appellate court must view the facts in the light 

most favorable to the prevailing party.

Additionally, when considering the trial court's ruling, this Court is 

not permitted to ignore the dual purpose behind Rule [600]. Rule

[600] serves two equally important functions: (1) the protection 

of the accused's speedy trial rights, and (2) the protection of 

society. In determining whether an accused's right to a speedy 

trial has been violated, consideration must be given to society's 

right to effective prosecution of criminal cases, both to restrain 

those guilty of crime and to deter those contemplating it. 

However, the administrative mandate of Rule [600] was not 

designed to insulate the criminally accused from good faith 

prosecution delayed through no fault of the Commonwealth.

So long as there has been no misconduct on the part of the 

Commonwealth in an effort to evade the fundamental speedy trial 

rights of an accused, Rule [600] must be construed in a manner 

consistent with society's right to punish and deter crime. In 
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considering [these] matters..., courts must carefully factor into 

the ultimate equation not only the prerogatives of the individual 

accused, but the collective right of the community to vigorous law 

enforcement as well.

Commonwealth v. Leaner, 202 A.3d 749, 765–66 (Pa.Super. 2019)

(quoting Commonwealth v. Armstrong, 74 A.3d 228, 234–35 (Pa.Super. 

2013)).

Our Supreme Court has summarized requirements of Rule 600 as 

follows:

By the terms of Rule 600, the Commonwealth must bring a 

defendant to trial within 365 days from the date upon which a 

written criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a). 

However, the Rule 600 run date may be adjusted pursuant to the 

computational directives set forth in Subsection (C) of the Rule. 

For purposes of the Rule 600 computation, “periods of delay at 

any stage of the proceedings caused by the Commonwealth when 

the Commonwealth has failed to exercise due diligence shall be 

included in the computation of the time within which trial must 

commence.” Id. 600(C)(1). “Any other periods of delay,” 

including those caused by the defendant, “shall be excluded from 

the computation.” Id. When considering a Rule 600 motion, the 

court must identify each period of delay and attribute it to the

responsible party, then adjust the 365-day tally to arrive at the 

latest date upon which the Commonwealth may try the defendant. 

Absent a demonstration of due diligence, establishing that the 

Commonwealth has done “everything reasonable within its power 

to guarantee that [the] trial begins on time,” Commonwealth v. 

Matis, 551 Pa. 220, 710 A.2d 12, 17 (1998), the Commonwealth's 

failure to bring the defendant to trial before the expiration of the 

Rule 600 time period constitutes grounds for dismissal of the

charges with prejudice. See Pa.R.Crim.P. 600(D)(1).

Commonwealth v. Barbour, ___Pa.___, 189 A.3d 944, 947 (2018).

Moreover, this Court has held that:

For purposes of determining the time within which trial must be 

commenced pursuant to paragraph (A), paragraph (C)(1) makes 
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it clear that any delay in the commencement of trial that is not 

attributable to the Commonwealth when the Commonwealth has 

exercised due diligence must be excluded from the computation 

of time. Thus, the inquiry for a judge in determining whether there 

is a violation of the time periods in paragraph (A) is whether the 

delay is caused solely by the Commonwealth when the 

Commonwealth has failed to exercise due diligence. If the delay 

occurred as the result of circumstances beyond the 

Commonwealth's control and despite its due diligence, the time is 

excluded. In determining whether the Commonwealth has 

exercised due diligence, the courts have explained that due 

diligence is fact-specific, to be determined case-by-case; it does 

not require perfect vigilance and punctilious care, but merely a 

showing the Commonwealth has put forth a reasonable effort.

Delay in the time for trial that is attributable to the judiciary may 

be excluded from the computation of time. However, when the 

delay attributable to the court is so egregious that a constitutional 

right has been impaired, the court cannot be excused for 

postponing the defendant's trial and the delay will not be 

excluded.

Pa.R.Crim.P. 600, cmt. (citations, quotation marks and brackets omitted). It 

is well-established “that the Commonwealth cannot control the schedule of 

the trial courts and that therefore [j]udicial delay can support the grant of an 

extension of the Rule [600] rundate.” Commonwealth v. Trippett, 932 A.2d 

188, 198 (Pa.Super. 2007) (quotations and citations omitted); see also

Commonwealth v. Preston, 904 A.2d 1, 14 (Pa.Super. 2006) (en banc) 

(finding judicial delay was not attributable to the prosecution where “the 

Commonwealth was prepared to commence trial prior to the expiration of the 

mandatory period but the court was unavailable because of scheduling 

difficulties and the like”) (citation omitted).
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In this case, the criminal complaint was filed on November 16, 2011. 

Thus, Appellant’s mechanical run date was November 16, 2012. Although 

Appellant’s trial did not commence until July 29, 2014, which was well beyond 

the mechanical run date, the docket shows that the extension of the run date

was substantially the result of defense requests for continuation, joint 

requests for continuation, and judicial delay caused by a busy court schedule.

3

See also Commonwealth v. Peterson, 19 A.3d 1131, 1137 (Pa.Super. 

2011) (finding that a joint continuance is excludable delay). As such, there is 

no merit to Appellant’s claim that counsel was ineffective in failing to file a 

Rule 600 claim.

In the second and third claims, Appellant asserted that trial counsel was 

ineffective in failing to challenge the trial court’s pre-trial ruling that limited 

the scope of the defense’s cross-examination of certain prosecution witnesses

with the fact that Taylor was arrested for shooting Appellant’s girlfriend,

Latisha Dudley, just hours after the instant offense.

However, our review of the record reveals that counsel obtained the trial 

court’s permission to question Taylor and Knight about the open charges 

against Taylor for the subsequent shooting of Dudley. N.T., 7/29/14, at 15. 

Trial counsel did question Taylor and Knight about the second shooting and 

the circumstances of Taylor’s arrest. Per the Commonwealth’s request, the 

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3

It appears that Appellant can only attribute two delays to Commonwealth 

requests for continuances from October 3, 2011 to November 17, 2011 and 

from November 22, 2013 to December 6, 2013.
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trial court limited further examination of Taylor as to avoid areas in which 

Taylor would invoke his Fifth Amendment privilege against self-incrimination. 

There is no arguable merit to Appellant’s claim that trial counsel did not seek 

to question Taylor and Knight about the second shooting. 

Moreover, Appellant has not shown how trial counsel’s failure to seek 

further cross-examination of these witnesses resulted in any prejudice, such 

that the outcome of his proceedings would have been different. See 

Johnson, supra. Evidence that Taylor subsequently shot at Appellant’s 

girlfriend does not advance Appellant’s theory that the prosecution witnesses 

fabricated their account that Appellant committed the instant offenses. 

Rather, Taylor’s prior identification of Appellant as his shooter on July 10, 2011 

supports a stronger inference that he had motive to shoot Appellant’s 

girlfriend hours later on July 11, 2011. As such, the PCRA court correctly 

dismissed this claim of ineffectiveness.

Fourth, Appellant claimed trial counsel was ineffective in failing to crossexamine Taylor as to why he failed to name Appellant as the shooter when 

initially questioned by police, but instead, merely gave a description of 

Appellant told police where Appellant lived. We note that the trial court was 

made aware of this fact as one of the responding officers testified that Taylor 

did not initially give Appellant’s name to the police. N.T. 7/30/14, at 53-55, 

66. While Appellant did not have the opportunity to ask Taylor why he did not 

initially name him as the shooter, Appellant has not shown that he was 
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prejudiced, that is, that but for this omission, that the outcome of his 

proceedings would have been different. See Johnson, supra.

Fifth, Appellant argued that trial counsel was ineffective in failing to 

move for a mistrial based on a statement made by Detective Alers. This 

testimony was elicited when the prosecutor was discussing the fact that while 

eyewitnesses had testified that Appellant had shot his firearm three times, the 

police only discovered two fired cartridge casings at the scene. After the 

prosecutor asked Detective Alers if it was a common occurrence not to find all 

the cartridge casings at the crime scene, Detective Alers confirmed that he 

had experienced that situation several hundred times. He also discussed an 

unrelated incident where he was qualified to fire his weapon and one casing 

inadvertently ended up his pant pocket. N.T., 7/30/14, at 94-95.

However, our courts have emphasized that “[m]istrials should be 

granted only when an incident is of such a nature that its unavoidable effect 

is to deprive appellant of a fair trial.” Commonwealth v. Johnson, 572 Pa. 

283, 306, 815 A.2d 563, 576 (2002). We cannot see how this comment 

caused Appellant prejudice such that the outcome of his proceeding would 

have been different. Moreover, in a bench trial, the trial court, sitting as fact 

finder “is presumed to know the law, ignore prejudicial statements, and 

disregard inadmissible evidence.” Commonwealth v. McFadden, 156 A.3d 

299, 309 (Pa.Super. 2017) (quoting Commonwealth v. Smith, 97 A.3d 782, 

788 (Pa.Super. 2014)). Given these principles, we find that the extreme 
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remedy of a mistrial was not warranted in this case based on Detective Alers’s 

statement.

Sixth, Appellant asserts that counsel was ineffective in failing to object 

to Taylor’s testimony that Appellant started the initial confrontation by 

swinging his fist at Taylor. However, even assuming arguendo that Appellant 

is correct in alleging that Taylor was the initial aggressor, this fact alone does 

not establish a valid self-defense claim for Appellant as the evidence showed 

Appellant retreated inside his home to retrieve a gun and returned to fire 

several shots at Taylor. See 18 Pa.C.S.A. 505. As the disputed fact in no 

way proves that Appellant was justified to respond to Taylor with deadly force, 

we cannot find trial counsel was ineffective for failing to object to Taylor’s 

testimony. 

Seventh, Appellant argues that trial counsel was ineffective in failing to 

file a suppression motion arguing that the box of .38 caliber ammunition found 

in Latisha Dudley’s vehicle was inadmissible. However, the record shows that 

trial counsel did file a motion to suppress all evidence seized from this vehicle, 

but the trial court subsequently denied the suppression motion. As a result, 

this ineffectiveness claim has no merit.

Moreover, Appellant challenged the trial court’s denial of his suppression 

motion on direct appeal. This Court, after addressing the merits of Appellant’s 

claim, found the affidavit of probable cause was sufficient to justify the search 

warrant for Dudley’s vehicle. “[A] petitioner cannot obtain post-conviction 

review of claims previously litigated on appeal by alleging ineffective
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assistance of prior counsel and presenting new theories of relief to support 

previously litigated claims.” Commonwealth v. Bracey, 568 Pa. 264, 795 

A.2d 935, 939 n. 2 (2001) (citing Commonwealth v. Porter, 556 Pa. 301, 

728 A.2d 890, 896 (1999)). As such, Appellant's previously litigated claim is 

not cognizable under the PCRA.

Eighth, Appellant alleged that trial counsel was ineffective for failing to 

object to hearsay testimony from Detective Alers that an anonymous officer 

told him that Appellant had fled the scene in a 2000 Ford SUV. Our review of 

the record reveals that Detective Alers testified that he had already begun 

investigating the scene, when Dudley pulled up in the SUV. He indicated that 

another officer had told him that “the SUV was involved in the incident, that 

[Appellant] had fled inside this SUV.” N.T. 7/29/14, at 30. 

However, “it is elemental that, an out of court statement which is not

offered for its truth, but to explain the witness' course of conduct is not

hearsay.” Commonwealth v. Carson, 590 Pa. 501, 567, 913 A.2d 220, 258 

(2006) (citation omitted). Detective Alers made this comment in explaining 

how he came in contact with Latisha Dudley at the crime scene and confirmed 

that he did not use the unidentified officer’s statement in seeking a warrant 

to search the SUV. As Detective Alers’s statement was admitted to show his 

course of conduct, and not for its truth, it was not hearsay. As a result, the 

PCRA court did not err in denying this ineffectiveness claim.

In his ninth claim, Appellant asserts that counsel was ineffective for 

failing to prepare alibi witness, Thomas Daniel, for trial. As noted above, 
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Thomas Daniel, who has been dating Appellant’s mother for approximately 

fifteen years, testified that he works in air conditioning and refrigeration and 

was on the job in New York with Appellant at the time of the shooting. When 

initially interviewed by Detective Alers in September 2013, Daniel indicated 

that there was no documentation to show that Appellant was working with him

in New York on the day of the shooting. Daniel then explained that he did 

not keep attendance records as several workers were “off the books.” N.T. 

Trial, 7/29/14, at 118. 

While Appellant baldly asserts that trial counsel failed to prepare Daniel

to testify, he offers no additional detail to argue how counsel’s performance 

was deficient. Rather, he appears to be unsatisfied with the PCRA court’s 

decision to find Daniel’s testimony not credible. However, “[a] PCRA court's 

credibility findings are to be accorded great deference, and where supported 

by the record, such determinations are binding on a reviewing court.” 

Commonwealth v. Treiber, 632 Pa. 449, 465, 121 A.3d 435, 444 (2015)

(citation omitted). As such, the PCRA court did not err in denying this claim.

Tenth, Appellant claims trial counsel was ineffective in failing to produce 

corroborating evidence to support his alibi, including, inter alia, Appellant’s 

cell phone records and the testimony of Daniels’s boss. We first note that 

Appellant did not provide his phone records to the PCRA court and has not 

determined what the phone records would show or argued how such records 

would support the defense. Even assuming Appellant’s phone records 

reflected that his phone was in New York at some point, they would not 
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conclusively prove that Appellant could not have been in Philadelphia on the 

night of the shooting. 

With respect to Appellant’s claim that trial counsel should have secured 

the testimony of Daniel’s boss to confirm Appellant’s alibi, it is well-established 

that “[i]n order to demonstrate counsel's ineffectiveness for failure to call a 

witness, a petitioner must prove that “the witness existed, the witness was 

ready and willing to testify, and the absence of the witness' testimony 

prejudiced petitioner and denied him a fair trial.” Commonwealth v. 

Stahley, 201 A.3d 200, 211 (Pa.Super. 2018) (quoting Commonwealth v. 

Luster, 71 A.3d 1029, 1047 (Pa.Super. 2013) (citations omitted)). However, 

Appellant has not offered any evidence as to the identity of Daniel’s boss or 

asserted that he was willing to testify on Appellant’s behalf. In fact, Daniel 

refused to identify his boss and admitted that his boss would likely be unwilling 

to talk to detectives or testify on Appellant’s behalf. N.T., 7/29/14, at 147, 

150-151. As such, this ineffectiveness claim fails.

In his final claim, Appellant contends that trial counsel was ineffective 

in failing to produce expert testimony to challenge the testimony of the crime 

scene officers and eyewitnesses. In addition to the aforementioned precedent 

set forth in Stahley, we note the following:

“[w]hen a defendant claims that some sort of expert testimony 

should have been introduced at trial, the defendant must 

articulate what evidence was available and identify the witness 

who was willing to offer such evidence.” Commonwealth v. 

Williams, 537 Pa. 1, 29, 640 A.2d 1251, 1265 (1994) citing 

Commonwealth v. Holloway, 524 Pa. 342, 572 A.2d 687 
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(1990). This is consistent with our Supreme Court's previous 

mandate that to justify an evidentiary hearing with respect to 

assertions of ineffectiveness of trial counsel, it is required that an 

offer of proof be made that alleges sufficient facts upon which a 

reviewing court can conclude that trial counsel may have been 

ineffective. Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 

504, 505 (1989). Claims of ineffectiveness of trial counsel cannot 

be considered in a vacuum. Id.

Commonwealth v. Steward, 775 A.2d 819, 831-832 (Pa.Super. 2001). 

Moreover, “[t]he mere failure to obtain an expert witness is not 

ineffectiveness. Appellant must demonstrate that an expert witness was 

available who would have offered testimony designed to advance appellant's 

cause.” Id. at 832 (citation omitted).

Beyond his bald assertion that trial counsel should have presented a 

ballistics expert, Appellant did not articulate what evidence was available, 

identify an expert willing to testify on Appellant’s behalf, or explain how such 

testimony would have advanced his cause. As a result, Appellant’s claim is 

based on pure speculation. As such, Appellant failed to demonstrate that this 

particular claim of trial counsel's ineffectiveness is of arguable merit.

Accordingly, we conclude that the PCRA court did not err in dismissing 

Appellant’s petition, which does not contain any non-frivolous issues of 

arguable merit. We, therefore, grant counsel’s petition to withdraw and affirm 

the PCRA court’s order dismissing Appellant’s petition. 

Petition to Withdraw as Counsel granted. Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2019