J.S52010/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

MARVIN PRICE, :

:

Appellant : No. 936 EDA 2013

Appeal from the PCRA Order February 22, 2013

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0503251-2004

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 24, 2014

Appellant, Marvin Price, appeals from the order entered in the 

Philadelphia County Court of Common Pleas denying his first Post Conviction 

Relief Act1(“PCRA”) petition. Appellant asserts that the PCRA court erred 

when denying his ineffective assistance of counsel (“IAC”) claims related to 

the failures of prior counsel to (1) move for a mistrial or request curative 

instructions when the prosecutor used a religious theme in summation to the 

jury, (2) call as an impeachment witness the prosecutor who represented 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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the Commonwealth at trial, (3) object to the prosecutor’s knowing 

presentation of false testimony of Officer Dawn Benton. We affirm.

The direct appeal panel of this Court, quoting the trial court opinion, 

summarized the facts and procedural history of this case as follows:

On November 7, 2003, Troy Jones [(“Victim”)] was 

shot and killed. Before he died, however, he made various 

statements to his family and police identifying [Appellant], 

Marvin Price, as his killer. Approximately fourteen or 

fifteen months before this incident, [Appellant] and 

[Victim] had gotten in an argument during which [Victim] 

shot [Appellant]. When police arrived on scene, 

[Appellant] said he did not want their help and that he 

would “take care” of it himself. [Appellant] reiterated this 

sentiment when detectives served him with a subpoena as 

the case was approaching its third preliminary hearing 

listing. That case was subsequently dismissed because 

[Appellant] did not appear for court to testify against 

[Victim].

As to the incident at bar, on November 7, 2003, at 

around 10:00 p.m., [Victim] went to his parents’ house . . 

. . He stayed for approximately one hour, and at around 

11:00 p.m. when he walked out of his parents’ house, he 

was shot. [Victim’s] nephew, Darnell Gantt, was the first 

of his family outside, followed by Dorothy and Richard 

Jones, [Victim’s] parents. [Victim] said to Mr. Gantt, 

“Marvin shot me.” He said to his mother, Dorothy, and his 

father, Richard, “I’m shot. Marvin shot me.”

On his way to the hospital, [Victim] asked Police 

Officer and trained paramedic Shane Gaghan if he was 

going to die. Officer Gaghan told him that he didn’t look 

good, but that the medical personnel would do all they 

could. Once inside the hospital, then-Inspector [Frankie2] 

 

2 Sergeant Frank W. Hayes referred to Inspector Heyward as Frankie. See

N.T., 4/21/05, at 35. Our review of the record indicates that the Inspector 

did not testify at trial.
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Heyward, in the presence of Sergeant [Frank W.] Hayes, 

asked [Victim] who shot him. [Victim] said that it was 

Marvin Price of 16th and Chelten. Following this incident, 

[Appellant] was not around his normal neighborhood, so 

the homicide fugitive squad was searching for him. 

[Appellant] was apprehended four months after the 

incident. 

 * * *

On April 21, 2005, [Appellant’s] motion to suppress 

statement made by [Victim] to various civilians as well as 

to police was heard . . . . The motion was initially decided, 

but reopened upon Commonwealth request. Thus, a 

second hearing on the motion was held on April 25, 2004 . 

. . . The court ruled as follows: that the statement of 

[Victim] to Darnell Gantt was admissible in part as an 

excited utterance, that the statement of [Victim] to 

Inspector Heyward regarding [Appellant’s] address was 

admissible, that the statements to Richard Jones and the 

second part of the statement to Darnell Gantt[3] were 

inadmissible, that the statements to Dorothy Jones were 

admissible . . . to show [Victim’s] state of mind. The 

Commonwealth appealed the pre-trial rulings regarding the 

exclusion of the declarations of [Appellant’s] address and 

the testimony from Richard Jones. In a [memorandum4] 

filed September 28, 2006, the Superior Court reversed 

those pre-trial rulings and held that all of [Victim’s] 

 

3 The court ruled as follows as to Darnell Gantt’s statement:

With respect to Darnell Gantt, his testimony that 

[Victim] said, “I’m shot, Don, they shot me,” [ ] “Marvin 

shot me,” the [c]ourt finds that portion of the statement of 

[Victim] to be an excited utterance. Anything further 

contained in the statement said by or allegedly said by 

[Victim] the [c]ourt finds not admissible as an excited 

utterance.

N.T., 4/21/05, at 78-79.

4 Commonwealth v. Price, 1250 EDA 2005 (unpublished memorandum) 

(Pa. Super. Sept. 28, 2006).
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declarations qualified as both excited utterances and 

dying declarations.

[Appellant] was tried by a jury over the course of 

three days, beginning January 15, 2008 and ending 

January 18, 2008. The jury found [Appellant] guilty of: 

Murder of the First Degree and Possession of an 

Instrument of Crime. Sentencing was deferred in order for 

a Pre-Sentence and Mental Health Evaluation to be 

completed.

[Appellant] was sentenced to life imprisonment for 

the murder and two and one half to five years (21⁄2-5) 

imprisonment for the possession of an instrument of crime 

to run concurrent. 

Commonwealth v. Price, 1379 EDA 2008 (unpublished memorandum at 1-

3) (Pa. Super. Dec. 21, 2009) (citations to record omitted and emphasis 

added). 

This Court affirmed the judgment of sentence. Id. at 1. The 

Pennsylvania Supreme Court denied allocator on June 22, 2010. 

Commonwealth v. Price, 997 A.2d 1177 (Pa. 2010). 

Appellant filed the underlying pro se PCRA petition on March 28, 

2011.5 Counsel was appointed and filed an amended PCRA petition on 

 

5 Appellant’s judgment of sentence became final on September 20, 2010, 

ninety days after the Pennsylvania Supreme Court denied his petition for 

allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “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[ ]”). 

Appellant had until September 20, 2011, to file his PCRA petition. See 42 

Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one year 

of date judgment becomes final). Because he filed his PCRA petition on 

March 28, 2011, his petition is timely.
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November 4, 2011. The PCRA court notified Appellant of its intent to dismiss 

the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. The court 

denied the PCRA petition on February 22, 2013. This timely appeal followed. 

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal and the PCRA court filed a responsive opinion.

Appellant raises the following issues for our review:

I. Was trial counsel ineffective for failing to move for a 

mistrial or curative instructions when the prosecutor used 

a religious theme to support the statements of [Victim]?

 

II. Was trial counsel ineffective because he failed to:

A. Try to call the prosecutor to the witness stand to 

impeach Officer Benton’s testimony that she had told her 

of the Marvin shot me statement at an earlier time or 

times.

B. Try to secure a stipulation from the prosecutor that if 

called to testify under oath she would have told the jury

that Officer Benton never told her of the Marvin shot me 

statement.

C. Try to have the prosecutor correct the false testimony 

given by Officer Benton by telling the jury Officer Benton 

never mentioned the Marvin shot me statement to her.

III. Were trial and appellate counsel ineffective for failing 

to raise the prosecutor’s knowing use of false testimony 

when Officer Benton testified she had told the prosecutor 

on a prior occasion that she heard [Victim] say “Marvin 

shot me?”

Appellant’s Brief at 11.6

 

6 We note that Appellant raised a fourth issue in his Rule 1925(b) statement, 

viz., Appellant’s “conviction which is not based on any sworn testimony 
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First, Appellant contends trial counsel was ineffective for failing to 

move for a mistrial or curative instruction when the prosecutor used a 

religious theme to support the statements of [Victim]. Appellant objects to 

the following statement during the prosecutor’s summation:

Ladies and gentlemen, the words of [Victim] are the most 

powerful and compelling and reliable evidence that you can 

have. You know intuitively that a man’s dying words are 

crucial and reliable and powerful, you know it intuitively, 

because who would to go meet their maker with a lie upon 

their lips, who, uttering the last words they would say, 

would say anything other than the truth. You know that, 

but the law recognizes it too, the law recognizes it too, [ ] 

the law treats a man’s dying words with the most utmost 

respect and treats them preciously because the law knows 

that─

N.T., 1/18/08, at 69-70. Appellant’s counsel objected without stating the 

basis for the objection and the court responded: “It’s argument and I’ll give 

instructions on the law, the [c]ourt will give instructions.” Id. at 70.

Appellant argues that trial counsel was ineffective in failing to move for 

a mistrial or curative instruction based upon the prohibition against using 

religious beliefs to bolster the credibility of a witness. He cites 42 Pa.C.S. § 

5902(b) and Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991). We 

find no relief is due.

 

violates the state and federal constitutions.” Appellant’s Pa.R.A.P. 1925(b) 

Statement, 8/14/13, at 2. This issue is not identified in the statement of 

questions presented section of his brief or developed in the argument 

section; thus, it is abandoned on appeal. See Commonwealth v. Dunphy, 

20 A.3d 1215, 1218-19 (Pa. Super. 2011).
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In reviewing the propriety of an order denying PCRA 

relief, this Court is limited to examining whether the 

evidence of record supports the determination of the 

PCRA court, and whether the ruling is free of legal error. 

Great deference is given to the findings of the PCRA court, 

which may be disturbed only when they have no support in 

the certified record.

Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008) 

(citations omitted).

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. To demonstrate prejudice, an appellant must 

prove that a reasonable probability of acquittal existed but 

for the action or omission of trial counsel. A claim of 

ineffective assistance of counsel will fail if the petitioner 

does not meet any of the three prongs. Further, a PCRA 

petitioner must exhibit a concerted effort to develop his 

ineffectiveness claim and may not rely on boilerplate 

allegations of ineffectiveness.

Id. at 936 (punctuation marks and citations omitted).

“Our standard of review for a claim of prosecutorial 

misconduct is limited to whether the trial court abused its 

discretion.” “In considering this claim, our attention is 

focused on whether the defendant was deprived of a fair 

trial, not a perfect one.” 

[A] prosecutor’s arguments to the jury are 

[generally] not a basis for the granting of a new trial 

unless the unavoidable effect of such comments 

would be to prejudice the jury, forming in their

minds fixed bias and hostility towards the accused 

which would prevent them from properly weighing 

the evidence and rendering a true verdict.
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A prosecutor must have reasonable latitude in fairly 

presenting a case to the jury and must be free to 

present [his] arguments with logical force and vigor. 

The prosecutor is also permitted to respond to 

defense arguments. Finally, in order to evaluate 

whether the comments were improper, we do not 

look at the comments in a vacuum; rather we must 

look at them in the context in which they were 

made.

Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) 

(citations omitted). “There is no prohibition against a prosecutor discussing 

applicable law in his closing argument, as long as he states the law clearly 

and accurately.” Commonwealth v. Rios, 684 A.2d 1025, 1034 (Pa. 

1996). 

Our rules of evidence provide the following exception to the rule 

against hearsay:

(b) The Exceptions. The following are not excluded by 

the rule against hearsay if the declarant is unavailable as a 

witness:

 * * *

Statement Under Belief of Imminent Death. A 

statement that the declarant, while believing the 

declarant's death to be imminent, made about its cause or 

circumstances.

Pa.R.Evid. 804(b)(2). In Commonwealth v. Smith, 314 A.2d 224 (Pa. 

1974), our Pennsylvania Supreme Court opined: “The reliability of a dying 

declaration is provided not by an oath, nor by cross-examination; rather, its 

admissibility is based on the premise that no one ‘who is immediately going 

into the presence of his Maker will do so with a lie upon his lips.’” Id. at 225 
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(citation omitted); accord Commonwealth v. Riggins, 386 A.2d 520, 523 

(Pa. 1978) (citing Smith, supra.); Commonwealth v. Griffin, 684 A.2d 

589, 592 n.4 (Pa. Super. 1996) (citing Smith, supra.).

The PCRA court opined:

Closing argument is a critical stage in a trial. A lawyer 

should not be expected to discuss the facts in a vacuum, 

however; it is generally necessary to consider them in light 

of the rules of law which a case involves. Thus a 

prosecutor may discuss applicable law during closing 

argument, so long as he or she does not misstate the law 

or state it in a manner calculated to confuse the jury.

[Appellant’s] attack on the prosecutor’s “religious 

theme” is without merit because a quick review of the 

summation shows that the prosecutor’s merely [sic] 

referenced the law relevant to [Victim’s] dying 

declarations.[7] Dying declarations an of [sic] unavailable 

witness are admissible as an exception to the hearsay rule

when the declarant, under the belief of imminent death, 

comments on the circumstances of what he or she believes 

will be imminent death. Various rationales have been 

offered for this exception, with the most commonly cited 

reason being that “no one who is immediately going into 

the presence of his Maker will do so with a lie upon his 

lips.” The prosecutor accurately referenced this rationale 

in her closing argument.

 

7 We note that this Court in a prior appeal, in ruling that Victim’s dying 

declarations were admissible, opined: 

As stated by the Supreme Court, the reliability of a 

dying declaration is based on the premise that “no one 

who is immediately going into the presence of his Maker 

will do so with a lie upon his lips.” Commonwealth v. 

Griffin, 684 A.2d 589, 592 n.4 (Pa. Super. 1996) (quoting 

Commonwealth v. Smith, 314 A.2d 224, 225 (Pa. 1974).

Price, 1250 EDA 2005 at 5-6.
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PCRA Ct. Op., 9/5/13, at 10-11 (citations omitted). We agree.

Appellant’s claims of ineffectiveness of trial counsel8 based upon 

Section 5902(b) is unavailing. Section 5902(b) provides: “No witness shall

be questioned, in any judicial proceeding, concerning his religious belief; 

nor shall any evidence be heard upon the subject, for the purpose of 

affecting either his competency or credibility.” 42 Pa.C.S. § 5902(b) 

(emphases added). In the case sub judice, the prosecutor did not question 

any witness about his religious beliefs. Appellant cannot rely on this section 

to challenge the Commonwealth’s closing argument.

Similarly, Appellant cites Chambers in support of his claim that trial 

counsel was ineffective for failing to request a mistrial or curative instruction 

based upon the prosecutor’s summation. In Chambers, “the prosecutor 

stated, ‘[the defendant] has taken a life.’ As the Bible says, ‘and the 

murderer shall be put to death.’” Chambers, 599 A.2d at 643. Our 

Pennsylvania Supreme Court opined: “We now admonish all prosecutors that 

 

8 Appellant also avers in the argument section of his brief that appellate 

counsel was ineffective. Appellant did not raise the issue of appellate 

counsel’s ineffectiveness in his Rule 1925(b) statement. See 

Commonwealth v. Dozier, 99 A.3d 106, 110 (Pa. Super. 2014) (citing 

Pa.R.A.P. 1925(b)(4)(vii) (issues not included in Rule 1925(b) statement are 

waived). Nonetheless, given our resolution of the issues with regard to trial 

counsel, his claim of appellate counsel’s ineffectiveness would fail. “[I]f the 

petitioner cannot prove the underlying claim of trial counsel ineffectiveness, 

then petitioner’s derivative claim of appellate counsel ineffectiveness of 

necessity must fail.” Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 

2011).
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reliance in any manner upon the Bible or any other religious writing in 

support of the imposition of a penalty of death is reversible error per se

and may subject violators to disciplinary action.” Id. at 644 (emphasis 

added). The holding in Chambers is inapplicable in the instant case. 

Appellant has not shown that the unavoidable effect of the 

prosecutor’s comment prejudiced the jurors, forming in their minds a bias 

such that they could not weigh the evidence. See Solomon, 25 A.3d at 

383. We agree with the PCRA court that the prosecutor accurately discussed 

the applicable law in closing arguments. See Rios, 684 A.2d at 1034. 

Because this claim is without merit, trial counsel cannot be deemed 

ineffective. See Perry, 959 A.2d at 935. 

Next, we address issues II.A and III together because they are 

interrelated. Appellant contends that trial counsel9 was ineffective because 

he failed to “try to call the prosecutor to the witness stand to impeach 

Officer Benton’s testimony that she had told [the prosecutor] of the Marvin 

shot me statement at an earlier time or times.” Appellant’s Brief at 15. 

Appellant contends that if the prosecutor had impeached Officer Benton’s 

testimony, “[t]his could have easily altered the outcome and is substantial 

 

9

In issue III of the statement of the questions presented, Appellant raises 

the ineffectiveness of appellate counsel. Appellant’s Brief at 11. However, 

in the argument section of his brief, Appellant does not address appellate 

counsel’s ineffectiveness. Issues raised in the statement of questions 

involved but not addressed in the argument section of the brief are waived. 

Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002). 
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prejudice.” Id. at 17. Appellant avers that trial counsel was also ineffective 

because he failed to raise the prosecutor’s presentation of false testimony, 

viz., that Officer Benton informed the prosecutor that when she was on the 

porch she heard Victim say, “Marvin shot me.” Id. at 18. 

Where a defendant 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. Generally, we require a defendant to demonstrate 

that:

(1) the witness existed; (2) the witness was 

available to testify for the defense; (3) counsel knew 

of, or should have known of, the existence of the 

witness; (4) the witness was willing to testify for the 

defense; and (5) the absence of the testimony of 

the witness was so prejudicial as to have 

denied the defendant a fair trial.

Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008) (citation omitted and 

emphases added). “Furthermore, we note that we are bound by the PCRA 

court’s credibility determinations where there is record support for those 

determinations.” Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 

2004). 

At trial, Victim’s mother, father, and nephew, Officer Gordon Andrew, 

and Sergeant Frank Hayes testified about Victim’s dying declarations. Mrs. 

Jones, Victim’s mother, testified to the following; Her grandson, Darnell 
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Gantt10 was on the porch with Victim and yelled for her to come out on the 

porch. N.T., 1/15/08, at 64. When she went to the porch she told Victim 

not to move. Id. She testified, “All [Victim] kept saying, because we kept 

talking to him, and he kept talking to Don-Don, and he told Don-Don he was 

shot, and he said to Don-Don, he said, Marvin shot me.” Id. “I was there, I 

had the phone in my hand, I was standing in the door . . . and he kept 

saying it over and over, he said, Marvin, Marvin Price shot me, he kept 

saying it over and over.” Id. at 65. She heard her husband and Darnell 

talking to Victim and he kept saying Marvin shot me. Id. at 66. 

Mr. Jones, Victim’s father, testified at trial to the following; Victim was 

at Mr. Jones’ house the night he was killed. Id. at 97-98. Mr. Jones was 

upstairs in his bedroom when he heard three shots. Id. at 102. His 

grandson called him to come downstairs because Victim was lying on the 

porch. Id. He stated that when he went out to the porch, Victim “was alert, 

I said . . . what is the matter, he said, Dad, I’ve been shot, he said, Marvin 

Price shot me.” Id.

Mr. Gantt, Victim’s nephew, testified at trial to the following; Mr. Gantt 

had been in a car accident and was staying at the Jones’ house following his 

release from the hospital. Id. at 155-56. Victim came to visit him. Id. at 

156-57. When Victim left the house, Mr. Gantt heard “boom, boom, boom, 

 

10 We note that Darnell was also referred to as Don-Don. N.T., 1/15/08, at 

64. 
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boom.” Id. at 159. When Mr. Gantt opened the door, Victim fell on him and 

said he had been shot. Id. Victim said “Marvin, Marvin shot me . . . .” Id.

at 160. 

Officer Andrew testified at trial to the following; On the night of the 

murder, he received a radio call to go to Jones’ residence. Id. at 198. 

When he arrived, he saw a man lying on the ground. Id. A few people 

were on the porch and they told him Victim had been shot. Id. Victim’s 

nephew told him that Marv did it and where Marv lived, and the officer knew 

it was Marvin Price’s address. Id. at 199-200.

Sergeant Hayes testified that he went to the hospital where Victim was 

to ensure that there were no problems. N.T., 1/16/08, at 24. He was met 

at the hospital by Chief Inspector Frankie Heyward. Id. at 23. He and the 

Chief Inspector went into the trauma room to see Victim. Id. at 25. 

Sergeant Hayes testified:

. . . Chief Inspector Heyward then at that time bent over 

[Victim] and asked him if he knew who shot him, [Victim] 

replied “Marvin shot me.” At that time, I’m standing right 

next to the chief and I’m bending over, I’m listening to the 

entire conversation, after [Victim] replied that Marvin shot 

him, then Chief Inspector Heyward said, “Marvin Price,” 

and [Victim] said, “yes.”

Id. 

Officer Benton was cross-examined by defense counsel at trial. 
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[Defense counsel]: If I understand things correctly, Officer 

[Benton11], you came to the District Attorney’s Office a 

couple years ago, 2005, in preparation for testifying in the 

[instant case]?

A: Correct. . . .

Q: And the crime scene log clearly depicted you were up 

on the porch that night; correct?

A: Correct.

Q: And you’re telling us or are you telling us that you 

didn’t bring up to anybody in preparation for going to court 

in this case that you heard [Victim] say the word “Marvin”?

A: I can’t recall.

Q: You can’t recall?

A: No, I can’t.

Q: Well, isn’t that an important point, isn’t that something 

you would bring up to somebody if that’s what you heard?

A: Yes.

Q: And you’re telling us today you can’t recall if you told 

anybody that ever?

A: I can’t recall, I’m not going to lie, I can’t recall.

Q: Did you ever prepare a document memorializing in any 

way, shape or form─

A: Yes, I have.

Q: ─that you heard [Victim] say the word “Marvin”?

A: Oh, no, I didn’t put it on paper, no.

 

11 Counsel inadvertently referred to Officer Benton as Officer Kennedy.
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Q: Did you tell a superior in the police department that you 

heard [Victim] say “Marvin”?

A: Yes.

Q: Who?

A: My superior.

Q: Which of your superiors?

A: My superior at the time was Sergeant [George] 

Holcombe.[12]

Q:. . . Did you tell anyone in the District Attorney’s Office 

that?

A: I can’t recall.

Q: How about in preparation of testifying in this 

proceeding, you prepared to testify, did you not?

A: Yes.

Q: Did you tell anyone, did you meet with [Assistant 

District Attorney Jennifer] Selber?

A: We talked about it.

 * * *

Q: When was that?

A: A few months ago.

 * * *

Q: You told her that you heard [Victim] say “Marvin” on

the porch?

 

12 The record indicates that he was a lieutenant at the time of trial. N.T., 

1/16/08, at 56.
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A: We talked about it.

 * * *

Q: Did you tell Ms. Selber? You’re under oath.

A: I told her that I was on the porch.

 * * *

Q: Did you tell her that while you were on the porch you 

heard [Victim] say the word “Marvin”?

A: Yes.

N.T., 1/17/08, at 33, 34-35, 36, 37.

Defense counsel made a motion for a mistrial, out of the presence of 

the jury, arguing that the substance of Officer Benton’s testimony was not 

disclosed to the defense prior to trial. Id. at 59. The Commonwealth, 

Attorney Selber, responded as follows:

. . . I did not know that Officer Benton had heard that. 

Had I known, I would have used it because it’s helpful 

evidence to me. I would have told [defense counsel] back 

in 2005, she was on the witness list already and on the 

crime scene log for that, and I would have put her on at 

the motion when we did the dying declaration because she 

would have been helpful to the Commonwealth’s case, 

especially in light of the fact that Officer Andrew didn’t 

hear it. . . . And although she testified that she 

thinks a couple of years ago she told me, whether 

she did or not, I can’t say, I can only say that I don’t 

remember her telling me . . . . 

 * * *

And the bottom line is she has been available, she’s 

been on the witness list, it’s been known to the defense as 

well as the Commonwealth that she was at the first scene, 

and what I told Your Honor before is absolutely the truth, 
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which is the first time I heard from her and registered 

that she heard that from [Victim] was out in the 

anteroom, which is what I asked her, if she 

remembers saying something about it, which I think 

she said she thought she did but wasn’t sure, I’m 

not disputing that, I’m just saying that we were not 

aware of it . . . .

Id. at 61, 62-63 (emphases added). 

The trial court opined:

[Appellant] has not─and cannot─show that [trial] 

counsel’s failure to use the prosecutor as an impeachment 

witness caused him prejudice. Four witnesses─Darnell 

Gantt, Dorothy Jones, Richard Jones, and Sergeant Frank 

Hayes─testified, under oath, that they heard [Victim] say, 

“Marvin shot me” before Officer Benton provided 

cumulative testimony regarding the victim’s dying 

declaration. Moreover, trial counsel aggressively crossexamined Officer Benton. Trial counsel demanded to know 

why inculpatory evidence identifying [Appellant] as the 

shooter was conspicuously absent from investigation 

documents and emphasized her vague, imprecise 

recollection that she “talked about” this statement during 

pre-trial preparations with the prosecutor. . . . Because 

Officer Benton was successfully impeached during crossexamination, there was no need for trial counsel to call the 

prosecutor as an impeachment witness during his case-inchief. This more than reasonable decision was [a] matter 

of trial strategy, and thus, does not constitute ineffective 

assistance of counsel. 

In his PCRA petition, [Appellant] baldly assumes the 

contrary and argues that if trial counsel called the 

prosecutor as a witness, her testimony would have . . . 

impeached Officer Benton. This assertion patently fails to 

consider the prosecutor’s argument during the motion for 

mistrial─a motion that occurred before [Appellant’s] case─ 

in─chief. . . .

 * * *
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If called to the stand to testify, it is highly probabl[e] 

the prosecutor would have provided a similar attestation. 

Moreover, such testimony would have been merely 

cumulative. In his PCRA petition, [Appellant] fails to 

identify what additional, non-cumulative evidence the 

prosecutor could have produced. Additionally, such 

testimony does not prove that Officer Benton testified 

falsely; it only shows the prosecutor and officer have a 

different recollection of the events of this case. . . . Here, 

it is clear the prosecutor would not have provided 

testimony helpful to the defense. . . .

PCRA Ct. Op. at 6, 7 (citations omitted). We agree no relief is due.

We hold Appellant has not satisfied the prejudice prong of the 

ineffective assistance of counsel test, as he has not “prove[n] that a 

reasonable probability of acquittal existed but for the action or omission of 

trial counsel. Because this claim is without merit, counsel cannot be deemed 

ineffective.” See Perry, 959 A.2d at 935. 

The argument section of Appellant’s brief does not address issues II.B 

and C, of the statement of the questions presented. Therefore, these issues 

are waived. See Jones, 815 A.2d at 604 n.3 . 

For the foregoing reasons, we affirm the order of the PCRA court 

denying Appellant’s petition.

Order affirmed.
J. S52010/14

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2014