J-S23034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

AMIR R.R. CRUZ-WEST :

:

Appellant :

: No. 1037 EDA 2015

Appeal from the PCRA Order March 13, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0005601-2008

CP-51-CR-0005602-2008

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

MEMORANDUM BY FITZGERALD, J.: FILED MAY 27, 2016

Pro se Appellant, Amir R.R. Cruz-West, appeals from the order entered 

in the Philadelphia County Court of Common Pleas dismissing his first 

petition for relief filed pursuant to the Post Conviction Relief Act1(“PCRA”). 

Appellant claims PCRA counsel was ineffective by failing to argue that trial 

counsel was ineffective by failing to (1) request a McCusker2charge, and 

(2) call an expert to testify that Appellant was suffering from post-traumatic 

stress disorder. Appellant also claims the PCRA court erred by (1) failing to 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 Commonwealth v. McCusker, 292 A.2d 286 (Pa. 1972).
J-S23034-16

- 2 -

consider the merits of his claims, and (2) improperly adopting PCRA 

counsel’s Turner/Finley3 brief. We affirm. 

We adopt the facts as set forth by a prior panel of this Court.

At around 12:00 p.m. in the afternoon, on January 31, 

2008, Troy Jennings and Marcellus Johnson were fatally 

shot outside of 36 North St. Bernard Street in Philadelphia. 

Just prior to the shooting, Charles Partlow who lived with 

his grandmother at 40 North St. Bernard Street, was in his 

grandmother’s basement when he heard Mr. Jennings, 

whom he had known all his life, yelling outside. Mr. 

Partlow went outside and saw Mr. Jennings standing in 

front of 36 North St. Bernard Street and heard him 

screaming, “Come on out. Let’s fight. Today the day. We 

got to fight. I told you don’t come around here.” Mr.

Partlow walked over to 36 North St. Bernard Street, 

walked past Mr. Jennings and through the front door, 

where he saw [Appellant] standing in the vestibule. He 

asked [Appellant] if he was all right and [Appellant] said, 

“Yeah” after which Mr. Partlow walked back to his 

grandmother’s house. At no point did Mr. Partlow observe 

Mr. Jennings with a weapon. 

Albert Crane, IV, who lived at 36 North St. Bernard 

Street, was awakened by the sound of Mr. Jennings yelling 

outside of his home. When Mr. Crane came down the 

steps, he saw [Appellant] was in his vestibule and he went 

outside to try and calm Mr. Jennings down. After a few 

minutes of standing outside, Mr. Crane saw Mr. Johnson, 

also known as “Smurf,” pull up to the house, get out, and 

ask for a cigarette. Mr. Crane went back inside the house 

to get his car keys; at this point [Appellant] was sitting 

inside the house about half way up the stairs which led to 

the living room. Mr. Crane told [Appellant] to calm down 

and that he would go back outside and tell Mr. Jennings 

the same. Once outside again, Mr. Crane, Mr. Jennings, 

and Mr. Johnson “laughed” and “joked,” while Mr. Crane 

 

3

 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S23034-16

- 3 -

stood near the railing of his front porch. After about five 

minutes, [Appellant] came out through the front door of 

the house, holding a shotgun, shot Mr. Jennings and Mr. 

Johnson from 5 to 10 feet away, and ran towards Arch 

Street. Mr. Partlow, at the time of the shooting, was 

standing in the doorway of his grandmother’s house with 

his attention diverted away from 36 North St. Bernard 

Street when he heard gunshots. When he turned to look 

over at 36 North St. Bernard Street, he observed 

[Appellant] running away with a shotgun in his hand.

Mr. Crane recognized the gun [Appellant] used as the 

shotgun Michael Robinson, a recent resident at 36 North 

St. Bernard Street, owned and kept in the house. Mr. 

Robinson testified that he owned a Mossberg Model 500, 

12-gauge shotgun which was kept in the house and that 

he had previously shown [Appellant] the shotgun yet had 

never given him permission to use it. Neither victim was 

seen with a weapon at any point on the day of the 

shooting. Police Officer Jerold Harris, after receiving a 

radio call of a shooting, and arriving on the scene, put Mr. 

Johnson into a police vehicle to rush him to the hospital 

and checked Mr. Johnson’s person for weapons and did not 

find any. Mr. Jennings had been shot twice in the neck, 

causing his carotid artery and jugular vein to be 

completely severed, while Mr. Johnson had two shotgun 

wounds to his back. Both victims were pronounced dead 

on January 31, 2008.

The ballistics expert testified that he had received, from 

the Medical Examiner’s Office, six uncoated lead pellets an 

Assistant Medical Examiner had taken from the body of Mr. 

Jennings, and four uncoated lead pellets from Mr. 

Johnson’s body, which were all consistent with being 

Double-0 buckshot. Four fired 12 gauge shot shells, 

marked Double-0 buck, were retrieved from the crime 

scene, as well as two lead spherical pellets that were all 

consistent with Double-0 buckshot. The ballistics expert 

was unable to opine whether or not the fired shots were all 

fired from the same firearm. 

[Appellant] testified at trial and claimed he acted in 

self-defense. He testified that, a few months before the 

shooting, Mr. Jennings had threatened him with a shotgun, 
J-S23034-16

- 4 -

one that was different from the one [Appellant] had used, 

and that Mr. Jennings had eventually calmed down but told 

[Appellant] to never come back around the neighborhood. 

He also testified that, in 2005, Mr. Jennings shot at 

[Appellant’s] sister’s vehicle yet neither incident was ever 

reported to the police. [Appellant] said he came to visit 

Mr. Crane at his house on the day of the shooting, and saw 

Mr. Jennings staring at him aggressively near 33 [sic] 

North St. Bernard Street. [Appellant] walked over to Mr. 

Crane’s home, used the key he had to get inside, and then 

locked the door. Mr. Crane asked him to stay on the steps 

inside the house and then walked outside to ask Mr. 

Jennings what was going on. Mr. Johnson arrived at the 

home shortly after. When Mr. Crane came back inside the 

house, [Appellant] testified that Mr. Crane told him, “I 

think they strapped.” After Mr. Crane went back outside, 

[Appellant] went upstairs, retrieved Mr. Robinson’s 

shotgun, went back downstairs, out the front door, and 

shot Mr. Jennings and Mr. Johnson, although he testified 

that he did not see Mr. Johnson. [Appellant] admitted he 

did not see Mr. Jennings with a weapon on the day of the 

shooting.

Commonwealth v. Cruz-West, 3442 EDA 2010 (unpublished 

memorandum at 1-3) (Pa. Super. Nov. 18, 2011) (citing Trial Ct. Op., 

6/9/11, at 1-4) (citations omitted).

Following a jury trial, Appellant was convicted of two counts of firstdegree murder4

and one count of possessing an instrument of crime 

(“PIC”).5 Appellant was sentenced to two concurrent life sentences for the 

first-degree murder charges and a concurrent three months to five years’ 

imprisonment for PIC. Appellant did not file post-trial motions or a direct 

 

4 18 Pa.C.S. § 2502(a).

5 18 Pa.C.S. § 907(a).
J-S23034-16

- 5 -

appeal. On August 5, 2010, counsel filed a PCRA petition seeking 

reinstatement of his appeal rights which was granted. On December 17, 

2010, Appellant filed a notice of appeal nunc pro tunc. This Court affirmed 

his judgment of sentence on November 18, 2011. See id. On April 27, 

2012, the Pennsylvania Supreme Court denied Appellant’s petition for 

allowance of appeal. Commonwealth v. Cruz-West, 42 A.3d 1058 (Pa. 

2012). 

On April 16, 2013, pro se Appellant filed a PCRA petition. Counsel was 

appointed and on January 23, 2015, sought permission to withdraw pursuant 

to Turner/Finley. On February 10, 2015, the PCRA court filed a 

Pa.R.Crim.P. 907 notice of intent to dismiss, notifying Appellant he had 

twenty days within which to file a response. Appellant filed a pro se

response to the Rule 907 notice.6 On March 13, 2015, the court granted 

counsel permission to withdraw and dismissed the PCRA petition. 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:

 

6 Appellant’s response was filed on March 9, 2015. However, his certificate 

of service indicates that it was mailed by first class mail on February 24, 

2015. Under the “prisoner mailbox rule,” a pro se prisoner’s document is 

deemed filed on the date he delivers it to prison authorities for mailing. See 

Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006).
J-S23034-16

- 6 -

I. Was PCRA counsel ineffective[7]in failing to argue that 

trial counsel was ineffective for failing to request a 

McCusker charge or its equivalent to explain to the jury 

how the violent history between Appellant and victim (Troy 

Jennings) could amount to provocation; and B) failing to 

call on psychiatric expert testimony to explain that 

provocation relative to Appellant’s mindset at the time was 

translatable as a form of post-traumatic stress? 

II. Did PCRA counsel and the court err in dismissing claim I 

as previously litigated and thus fail to consider the merits 

of the actual argument?

III. Was the PCRA court’s wholesale adoption of every 

point made by PCRA counsel in violation of 

Commonwealth v. Williams, [ ] 732 A.2d 1167 [Pa. 

1999]?

Appellant’s Brief at vii (footnote omitted).

 

7

In Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012), this Court 

held that “claims of PCRA counsel ineffectiveness cannot be raised for the 

first time after a notice of appeal has been taken from the underlying PCRA 

matter.” Id. at 1201. However, the Ford Court opined that “a majority of 

the Supreme Court agrees that issues of PCRA counsel effectiveness must be 

raised in a serial PCRA petition or in response to a notice of dismissal 

before the PCRA court.” Id. at 1200 (emphasis added). We note that

a claim of PCRA counsel ineffectiveness set forth for the 

first time in a Rule 907 response to a notice of intent to 

dismiss during a petitioner’s first PCRA proceeding is not a 

second or serial petition, nor is it an amended petition. 

Rather, the claim is more properly viewed as an objection 

to dismissal. 

Commonwealth v. Rykard, 55 A.3d 1177, 1187 (Pa. Super. 2012). In the 

case sub judice, Appellant asserted that “PCRA counsel was ineffective in 

misconstruing the objectives of arguments I, II, and III” in his response to 

the PCRA court’s notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. 

Objection to the Court’s Notice of Intent to Dismiss, 3/10/15, at 1. 

Therefore, we address Appellant’s issues raised on appeal. See id.; Ford, 

44 A.3d at 1200.
J-S23034-16

- 7 -

First, Appellant contends that

[w]hen undisputed evidence of a series of related events 

serves as a critical element in establishing provocation, the 

trial [c]ourt must give the McCusker instruction or its 

equivalent. The voluntary manslaughter instruction 

employs a tentative mention of “a series of related 

events”; however, the idea was perfected in 

Stonehouse,

[8] where the [defendant’s] history with her 

attacker amounted to Battered Woman’s Syndrome, a subfacet beneath the umbrella of Post-Traumatic-StressDisorder. Here [Appellant] previously fought the victim, 

and the victim pulled a shotgun on [Appellant], explicitly 

expressing that he would kill [Appellant] if he (Jennings) 

encountered [Appellant] again. Expert testimony would 

have fleshed-out in lay terms the categorical degrees of 

PTSD, and the litany of irrationalities one afflicted with 

even a mild case of the disorder undergoes. Thus 

Appellant’s “belief” he was in mortal danger would have 

resonated as credible when the fact finders were delegated 

to read his mind─because of the way being provoked prior 

to the events affected his belief.

Id. at 5. 

Our review is governed by the following principles.

Under our standard of review for an appeal from the 

denial of PCRA relief, we must determine whether the 

ruling of the PCRA court is supported by the record and is 

free of legal error. The PCRA court’s credibility 

determinations are binding on this Court when they are 

supported by the record. However, this Court applies a de 

novo standard of review to the PCRA court’s legal 

conclusions. 

To be eligible for PCRA relief, a petitioner must plead 

and prove by a preponderance of the evidence that his or 

her conviction or sentence resulted from one or more of 

the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). 

These circumstances include a violation of the 

 

8 Commonwealth v. Stonehouse, 555 A.2d 772 (Pa. 1989).
J-S23034-16

- 8 -

Pennsylvania or United States Constitution and ineffective 

assistance of counsel which “so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place.” 42 Pa.C.S. § 

9543(a)(2)(i), (ii). 

 * * *

To prevail on a claim of ineffective assistance of 

counsel, a petitioner must overcome the presumption that 

counsel is effective by establishing all of the following 

three elements, as set forth in Commonwealth v. Pierce, 

[ ] 527 A.2d 973, 975–76 ([Pa.] 1987): (1) the underlying 

legal claim has arguable merit; (2) counsel had no 

reasonable basis for his or her action or inaction; and (3) 

the petitioner suffered prejudice because of counsel’s 

ineffectiveness. 

Commonwealth v. Chmiel, 30 A.3d 1111, 1127-28 (Pa. 2011) (some 

citations omitted).

Additionally, counsel cannot be deemed ineffective for 

failing to raise a meritless claim. Finally, because a PCRA 

petitioner must establish all the Pierce prongs to be 

entitled to relief, we are not required to analyze the 

elements of an ineffectiveness claim in any specific order; 

thus, if a claim fails under any required element, we may 

dismiss the claim on that basis.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations 

omitted).

In determining a layered claim of ineffectiveness, the 

critical inquiry is whether the first attorney that the 

defendant asserts was ineffective did, in fact, render 

ineffective assistance of counsel. If that attorney was 

effective, then subsequent counsel cannot be deemed 

ineffective for failing to raise the underlying issue. 

Rykard, 55 A.3d at 1190 (quotation marks and citation omitted).

In McCusker, the Pennsylvania Supreme Court opined as follows.
J-S23034-16

- 9 -

We must decide today whether psychiatric evidence is 

admissible in a murder prosecution for the limited purpose 

of determining whether a defendant acted in the heat of 

passion. We are persuaded by the almost unanimous 

voice of professionally recognized authorities that such 

evidence is competent and in certain circumstances 

admissible.

 * * *

[The a]ppellant sought to establish the general and 

well-recognized requirements for a jury finding of 

voluntary manslaughter. Specifically he attempted to 

establish that as a result of adequate provocation he acted 

in the heat of passion when he killed his wife. Our law is 

quite explicit that the determination of whether a certain 

quantum of provocation is sufficient to support the defense 

of voluntary manslaughter is purely an objective standard.

 * * *

In making the objective determination as to what 

constitutes sufficient provocation reliance may be placed 

upon the cumulative impact of a series of related events. 

The ultimate test for adequate provocation remains 

whether a reasonable man, confronted with this series of 

events, became impassioned to the extent that his mind 

was ‘incapable of cool reflection.’

Id. at 287, 289-90 (footnotes omitted); 

The defendant in McCusker, to establish provocation,

relied on three events immediately preceding the slaying: 

his awareness within the last month before the crime that 

his wife had entered into a meretricious relationship with 

his step-brother; his knowledge within minutes of the 

crime that his wife was perhaps pregnant with his stepbrother’s child; and his wife’s threat immediately before 

the crime that she was going to leave defendant and take 

with her his only child.
J-S23034-16

- 10 -

Id. at 289-90; see also Commonwealth v. Mason, 130 A.3d 601, 629 

n.34 (Pa. 2015).

In Stonehouse, 

[The a]ppellant asserts that her trial counsel was 

ineffective in failing to request a jury instruction that would 

require the jury to consider the cumulative effects of 

psychological and physical abuse when assessing the 

reasonableness of a battered person’s fear of imminent 

danger of death or serious bodily harm with respect to a 

claim of self-defense. 

Stonehouse, 555 A.2d at 781. 

The evidence presented at trial in Stonehouse established the 

decedent’s physical and psychological abuse towards the defendant lasted 

three years. Id. at 774-781. The Pennsylvania Supreme Court described 

the abuse: “The events culminating in [the decedent’s] death are so bizarre 

that one would be tempted to dismiss them as the stuff of pulp fiction were 

it not for the corroboration of disinterested witnesses and for the fact that 

literature on the ‘battered women syndrome’ is replete with similar cases.” 

Id. at 774. Immediately prior to the killing, the decedent pointed a gun at 

the defendant’s face, telling her that she was going to die. Id. at 779. He 

kicked her continuously and beat her with the gun on her head and neck, 

while she pleaded with him not to kill her. Id. The decedent left, and 

knowing that he would return, the defendant went outside to the back porch. 

Id. at 780. The decedent returned and aimed the gun at her, she heard 

shots, and then she fired a gun at him twice, resulting in his death. Id. The 
J-S23034-16

- 11 -

Supreme Court held that trial counsel was ineffective because where there is 

“evidence of a series of related events which tend to establish adequate 

provocation, the trial court must give the McCusker instruction.” Id. at 782 

(citation omitted).

In Commonwealth v. Potts, 406 A.2d 1007 (Pa. 1979), the 

Pennsylvania Supreme Court opined:

[The a]ppellant contends that trial counsel was ineffective 

in failing to present available psychiatric and psychological 

testimony which would have been highly relevant in 

determining whether appellant acted with malice, thus 

committing murder or acted in the heat of passion, 

committing voluntary manslaughter. Commonwealth v. 

McCusker, [ ] 292 A.2d 296 ([Pa.] 1972). Since the sole 

issue at trial was the appellant’s state of mind at the time 

of the shooting, we conclude that trial counsel’s failure to 

present the available psychiatric and psychological 

testimony had no reasonable basis designed to effectuate 

his client’s interest. 

Between appellant’s arrest and his trial, he was examined 

by a psychiatrist and a psychologist. Trial counsel had two 

relevant reports concerning appellant’s state of mind. 

Potts, 406 A.2d at 1008 (some citations omitted and emphasis added).

Where a claim is made of counsel’s ineffectiveness for 

failing to call witnesses, it is the appellant’s burden to 

show that the witness existed and was available; counsel 

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

witness was willing and able to appear; and the proposed 

testimony was necessary in order to avoid prejudice to the 

appellant.

Chmiel, 30 A.3d at 1143 (quotation marks and citation omitted).

In the case at bar, the PCRA court opined that Appellant
J-S23034-16

- 12 -

correctly asserts that [McCusker] provides the test for 

determining legal provocation; however, the facts of 

[Appellant’s] case fall short of the test, hence, this claim is 

without merit.

 * * *

[Appellant] claims that two events led to the killings: a 

prior physical altercation with Jennings, and a shooting 

involving [Appellant’s] sister. In the prior incident 

between [Appellant] and Jennings, [Appellant] and 

Jennings got into a closed-fist physical altercation within 

the vestibule of Crane’s home. Following the fight, 

Jennings walked across the street to his home, retrieved a 

shotgun and crossed the street towards [Appellant], 

stating that he was going to shoot [Appellant]. Crane 

stepped in front of Jennings and calmed him before 

Jennings was able to act on his statements. The second 

incident, for which [Appellant] was not present, involved a 

verbal altercation between Jennings and [Appellant’s] 

sister outside her home, and resulted in Jennings firing a 

shotgun at the car of [Appellant’s] friend.

Despite [Appellant’s] citing to this history as 

provocation, in the moments immediately preceding the 

shooting, [Appellant], when asked about his state of mind 

by a witness, simply responded, “I’m cool.” Another 

witness also testified at trial that the occurrence of 

berating by Jennings was nothing out of the ordinary. 

These responses do not reflect that his mind was at all 

‘incapable of cool reflection.’ Witness testimony also 

shows that, prior to the shooting, there was a period of 

approximately five minutes where Jennings had ceased his 

yelling at [Appellant]. Based on the facts presented, 

[Appellant] did not act in the heat of passion when he 

committed the homicide; the prior cited incidents are 

insufficient to be deemed adequate provocation, and the 

five minutes of “quiet” was sufficient ‘cooling time’ to 

enable [Appellant] time to reflect and reason. [Appellant] 

again demonstrated that his mind was “cool” when he 
J-S23034-16

- 13 -

inquired about Yim Chhat’s[9] disposition before entering 

the living room to retrieve the gun,[10] moments prior to 

him walking down the stairs of Crane’s home, exiting 

through the front door and shooting Jennings and Johnson.

In McCusker, the events which preceded the Court’s 

holding that psychiatric evidence was admissible showed 

that [the defendant] had a history of mental disorders. 

[the defendant’s] mental state, coupled with his recently 

learning that he wife had an affair with his step-brother 

and was possibly with child, and had threatened to take 

custody of their only child, were what led the court to allow 

expert testimony. [Appellant] had no history of mental 

illness, and the culmination of events that lead to 

[Appellant] shooting Jennings and Johnson does not meet 

this standard. . . .

[Appellant] additionally claims that counsel was 

ineffective for failing to present psychiatric expert 

testimony to describe “one’s mind state while in fear and 

in a state of panic.” [Appellant] cites to Commonwealth 

v. Stonehouse[, 555 A.2d 772 (Pa. 1989)] as support for 

this claim, stating that the need for expert testimony in 

Stonehouse sets the standard for a need for expert 

testimony in the case at bar. However, the standard set in 

Stonehouse and the facts therein differ vastly from 

[Appellant’s] case. . . .

The issues in Stonehouse surrounded the entrance of 

a battered woman syndrome defense on the basis of the 

cumulative effects of psychological and physical abuse in 

determining the “reasonableness of a battered person’s 

fear of imminent danger of death or serious bodily harm. . 

. .” Stonehouse, 555 A.2d at 774. The facts in 

Stonehouse detailed abuse rendered by the [defendant’s] 

boyfriend that was ongoing for a period of three years. 

 

9 Yim Chhat was Crane’s girlfriend. N.T., 1/13/10, at 134. Prior to the 

shooting, she was upstairs in Crane’s house and Appellant had asked her if 

she was dressed. Id. at 139.

 

10 Chhat testified the shotgun “was next to the doorway of the kitchen and 

the living room, laying up against the wall.” Id. at 140.
J-S23034-16

- 14 -

The abuse consisted of property damage, including stealing 

her vehicle on numerous occasions, breaking into her 

home and destroying its interior, stalking, threats of harm 

to [her] life, safety and friends, and several instances of 

both verbal and physical attacks on the [defendant].

 * * *

In the case at bar, the circumstances surrounding 

[Appellant’s] killing of two individuals did not warrant a 

need for such expert testimony. [Appellant] cited to only 

one prior instance between him and the victim which 

preceded the killings; another incident did not involve him 

and he was not privy to it until days later. As testimony 

reflects, on the day of the incident, there was a period of 

calm prior to [Appellant] stepping outside and shooting the 

victims. . . . 

PCRA Ct. Op., 7/31/15, at 15-19 (footnotes omitted). We agree no relief is 

due.

At the time of trial, Appellant testified to the following. On the date of 

the incident he was going to visit Albert Crane. N.T., 1/19/10, at 10. He 

knew Crane and Troy Jennings all of his life. Id.

[Defense counsel]: What happened that morning?

[Appellant]: Well, I was walking up the street.

Q: What street?

A: Up St. Bernard Street to visit Albert at his house at 36, 

and I see Troy coming out his house. And he─he was 

grittin’ on me and I gritted back.

Q: What do you mean by grittin’ . . . ?

A: . . . he was looking at me, staring at me aggressively. 

And he asked me what the f*** was I looking at and didn’t 

he tell me not to come around the block anymore; that if I 

came back around, he was going to shoot me. . . .
J-S23034-16

- 15 -

 * * * 

Q: . . . Is this just yelling back and forth, or what 

happened?

A: . . . I tried to avoid the situation. I told him, like, I 

didn’t want any problems, you know. And he just kept 

speed─he just started speed-walkin’ across the street as in 

trying to─as in like he was going to do something to me.

Q: What did you do?

A: I tried─I went into the house. I had a key to Albert’s 

house, and I went into the front door. And I just closed 

the door and locked the door. . . . And I turned around 

and Albert is . . . coming out his apartment door inside the 

vestibule . . . .

 * * *

He came down the stairs, and he asked me what was 

going on.

 

I told Albert Troy was starting his shit again like last time 

when he pulled the gun out on me months prior to that 

day.

Q: When did that happen?

A: It was about two months─two months ago, two or three 

months before the incident that day.

Q: And what happened that day?

A: That day me and Troy had a fight inside of Albert’s 

vestibule.

 * * *

 

Q: [H]ow did it end?

A: . . . Albert, he broke the fight up.
J-S23034-16

- 16 -

Q: Okay.

A: And Troy went outside across the street to his house at 

29 North St. Bernard Street. He comes back out his house 

and across─back across the street towards Albert [sic] 

house with a shotgun in his─in his─in his hands.

 * * *

He─he’s walking towards me, but Albert jumped in front of 

him. Albert asked him what the fuck was he doing. . . . 

Troy . . . said that I was─I’m going to air this pussy out.

So Albert says, [t]here’s kids out here, and you need to 

cool out. So he─he calmed down and he told me the next 

time that I come around here, I come around the block, 

that I will be shot. And he walks back across the street.

Q: When you say he had a problem with your sister, did 

your sister have an incident with him?

A: Yes.

Q: When was that?

A: It was─it was over the years since about 2005. . . . 

 * * *

My sister, she lives at─she was living at 23 North St. 

Bernard Street. Every time she had friends come over, 

Troy would just harass her.

 * * *

Q: What happened?

A: What happened in 2005, my sister’s─my sister’s friend 

Mychele, she─her boyfriend stops in front of my sister’s 

house and they shoot─and Troy shoots her─his car up. He 

shot─he shot the guy’s car up.

Q: Now, just so we’re clear, were you present when 

that took place?
J-S23034-16

- 17 -

A: No.

 * * *

Q: . . . Now, the day of this shooting in January of 2008, I 

believe you said you went in the house?

A: Yes.

Q: . . . What happened after that, after you locked the 

door?

A: After I locked the door, I turned around and see Albert 

coming out his apartment door. He asked me, “What’s 

going on?”

I told him that Troy’s starting his shit again like the last 

time when he pulled his shotgun out on me months prior 

to the incident.

 * * *

Albert went downstairs─

Q: . . . Albert.

A:─towards the door, and I went upstairs into the 

apartment. And I asked Yim was she dressed, Albert’s 

girlfriend, and I grabbed the gun.

Q: Where was it?

A: It was in the living room. So I grabbed the gun from 

the living room where Yim was sleeping at. And I sit on 

the─at the top of the steps, at the top of the stairway.

So now I just hear Albert say it ain’t─tells Troy it ain’t 

worth it.

Troy said, “I don’t give a f***. If he [sic] not going to 

come out, I’m going to come in there.”

So now I’m definitely scared now.
J-S23034-16

- 18 -

 * * *

So I go downstairs with the gun and I come outside. I see 

Troy coming up─coming up the porch steps and Albert is 

trying to stop him, and I just came out the─the door. I 

just started shootin’. IQ: Where did you shoot from?

A: I walked out the door and I took two steps on the porch 

and I ─and I just shot. I just started shootin’.

Q: Who were you shootin’ at?

A: I was shooting at Troy, and I didn’t see anything else. I 

just─I just─I just saw Troy. And after I stopped shooting, 

I see that “Smurf”[11] was hit. . . .

N.T., 1/19/10, at 11-17, 20-23 (emphases added). 

On cross-examination, Appellant testified as follows.

[The Commonwealth]: . . . Did you see a gun in Troy’s 

hands that day that he died?

A: No.

Q: Did you see a knife or a bat or a stick or a weapon of 

any kind in Troy Jenning’s hand before you shot?

A: No.

 * * *

Q: . . . [D]id you see a gun at all . . . .

A: No.

Q: ─in the hands of Marcellus Johnson?

 

11 Marcellus Johnson.
J-S23034-16

- 19 -

A: No.

Q: A bat?

A: No.

Q: A gun?

A: No.

Q: A stick?

A: No.

Id. at 27-28.

At trial, the Commonwealth asked Crane to tell the jury what 

happened on the date of the incident:

A: . . . I was woken up by an argument between 

[Appellant] and Troy. I─when I came down the steps, 

[Appellant] was already in my hallway. You had two doors 

to get to my house, so he was already in the hallway. I 

came down, opened the door. I─I asked him to cool 

down; I’ll go outside and cool Troy out.

I went outside. I was there for a second. Marcellus, 

“Smurf,” was pulling up. He─asked me for a cigarette, so I 

ran back in to get the keys to the car.

 * * *

Q: . . . And when you say you told [Appellant] or you 

asked [Appellant] to cool down and then you would go 

outside and tell Troy to cool down─

A: Correct.

Q: ─from your perspective, was [Appellant] also in need of 

cooling down?

A: . . . [N]ot really.
J-S23034-16

- 20 -

 * * * 

So [Appellant] sat down on my steps about 12 steps up 

into the living room, so he sat there. I came up, got the 

keys, came back out, got “Smurf” the cigarette. We 

laughed. We joked.

You know, Troy was a little verbal at times, you know, and 

we laughed. We joked. And then moments later, maybe 

five minutes passed, [Appellant] comes out with the 

shotgun and shot “Smurf” and Troy.

 * * *

[Defense counsel]: Now, you wake up because you hear 

this argument?

A: Correct.

Q: What do you do?

A: . . . I went down stairs. I told [Appellant] to calm 

down. I’m going to go outside and calm Troy down. I 

calmed him down. I got . . . ”Smurf” the cigarette. 

Everything was fine. And that’s when the shots went off.

 

 * * *

Q: [Appellant] said, “Troy’s acting the fool again,” or 

something, words to that effect─

A: Correct.

Q: . . . At that point in time you said [Appellant’s] calm; 

right?

A: Yeah.

 * * *

Q: . . . So everything was dead calm when the shooting 

took place; is that what you’re saying?
J-S23034-16

- 21 -

A: Yeah. . . . “Smurf” was smoking a cigarette. Troy was 

standing there. We were all talking; correct.

N.T., 1/13/10, at 93-94, 111-13, 121. 

Charles Partlow testified to the following. On the day of the incident 

he was doing laundry at his grandmother’s house located at 40 North St. 

Bernard Street. Id. at 43. He heard arguing between Appellant and Troy. 

Id. at 44. He came out to see what was going on. Id. Troy was saying 

“Come on out. Let’s fight.” Id. Appellant was standing in the vestibule in 

36 North St. Bernard behind the door. Id. at 44-45. He asked Appellant if 

he was alright. Id. at 45. He said “You cool” and Appellant said “Yeah.” 

Id. Crane and Troy were talking and then Troy was yelling at Appellant 

through the door. Id. at 46. He was not looking at the doorway at the time 

he heard the two shots. Id. 

First, Appellant contends PCRA counsel was ineffective for failing to 

argue that trial counsel was ineffective for failing to request a McCusker

charge, relying upon Stonehouse. Appellant’s Brief at 3. 

In the case at bar, there was no evidence of a series of related events 

to establish adequate provocation for the two shootings. Appellant testified 

that Troy had a problem with his sister in 2005. He was not present when 

the incident took place. He testified that months before the shooting, Troy 

had “pulled his shotgun out” on him. Crane testified that Appellant was calm 

before the shootings took place. Before the killings, Appellant had a cooling 

off period. Based on the facts presented at trial, Appellant did not establish 
J-S23034-16

- 22 -

that the killings resulted from a series of recent and related events that led 

to sudden and intense passion. See Stonehouse, 555 A.2d at 782; 

McCusker, 292 A.2d at 290. Having found no merit in this claim, trial 

counsel was not ineffective for failing to request a McCusker charge. See 

Treiber, 121 A.3d at 445; Chimel, 30 A.3d at 1127-28. Therefore, PCRA 

counsel was not ineffective for failing to raise trial counsel’s ineffectiveness. 

See Rykard, 55 A.3d at 1190.

Appellant’s claim that PCRA counsel was ineffective for failing to argue 

that trial counsel was ineffective for failing to present psychiatric expert 

testimony to explain that Appellant’s provocation was “translatable as a form 

of post-traumatic stress” is meritless. Appellant did not show that a 

psychiatric expert witness existed and was available, that counsel was aware 

of the witness, and the witness was able to appear and was necessary to 

avoid prejudice. See Chmiel, 30 A.3d at 1143; Potts, 406 A.2d at 1008. 

Thus, trial counsel was not ineffective for failing to present an expert 

psychiatric witness. See Chimel, 30 A.3d at 1127-28. Therefore, PCRA 

counsel cannot be deemed ineffective and Appellant’s claim is without merit. 

See Rykard, 55 A.3d at 1190.

We address Appellants last two claims as they are interrelated. 

Appellant contends the PCRA court failed to consider the merits of his 
J-S23034-16

- 23 -

arguments because its analysis was identical to that of PCRA counsel.12 

Appellant’s Brief at 7. He asserts that “[t]he PCRA court’s wholesale 

adoption of every point made by PCRA counsel is in violation of 

Commonwealth v. Willliams. . . .” 

In Williams, 

[t]he PCRA court . . . issued a three-page opinion restating 

the procedural history of the case and, without further 

explanation, stating as follows:

We are unusually impressed and satisfied that the 

arguments advanced by the Commonwealth, in its 

brief in support of its Motion to Dismiss, accurately 

set forth the facts and the law that govern this case.

Therefore, in the interest of judicial economy and 

rather than needlessly expend precious judicial time 

that can be better spent on other pending matters, 

this Court hereby adopts the Brief submitted by the 

District Attorney and makes same a part hereof.

Williams, 732 A.2d at 1173 (emphasis added). The Williams Court 

opined: “We cannot, however, in this post-conviction case involving a review 

of the propriety of a death sentence, condone the wholesale adoption by the 

post-conviction court of an advocate’s brief.” Id. at 1176. 

 

12 We note that “[w]e may affirm the trial court on any ground.” 

Commonwealth v. Lynch, 820 A.2d 728, 730 n.3 (Pa. Super. 2003)
J-S23034-16

- 24 -

In the case sub judice, the PCRA court did not adopt PCRA counsel’s 

Turner/Finley no merits letter as its own opinion. See Notice Pursuant to 

Pennsylvania Rule of Criminal Procedure 907, 2/10/15, at 1-17. Appellant’s 

reliance on Williams is unavailing. 

According, we affirm the PCRA court’s order dismissing Appellant’s 

PCRA petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/27/2016