J-S52025-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NADIR K K. PETTAWAY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2670 EDA 2019

Appeal from the PCRA Order Entered August 7, 2019

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

No(s): CP-51-CR-0012479-2011

COMMONWEALTH OF PENNSYLVANIA

v.

NADIR K K. PETTAWAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2671 EDA 2019

Appeal from the PCRA Order Entered August 7, 2019

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

No(s): CP-51-CR-0012480-2011

BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: Filed: March 5, 2021

Appellant, Nadir Pettaway, appeals from the orders entered in the 

Philadelphia County Court of Common Pleas, at two related dockets, denying 

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* Former Justice specially assigned to the Superior Court.
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his first petition filed pursuant to the Post Conviction Relief Act (PCRA),1

seeking relief from his jury convictions of two counts of criminal attempt —

murder of the first degree,2 and related offenses. On appeal, he challenges

the PCRA court’s dismissal of his collateral challenges to the effectiveness of 

his trial counsel (Trial Counsel). We affirm.

The PCRA court summarized the genesis of this appeal as follows:

On October 8, 2011, David Leis and Jessica Clark were in 

North Philadelphia using controlled substances from 4:00 p.m. 

until 10:00 p.m. The next morning, around 5:30 a.m., Leis and 

Clark headed towards West Philadelphia, to the area of 63rd and 

Market Street, intending to meet with an acquaintance. When Leis 

and Clark arrived at the acquaintance[’]s house, around 6:30 

a.m., no one answered the door. At that point [Appellant], who 

later introduced himself to Leis and Clark as "Shizz," pulled up in 

a car and asked them if they wanted to purchase crack cocaine. 

Leis and Clark answered in the affirmative, and then got into 

[Appellant’s] car to begin a drug transaction. [Appellant] drove 

Leis and Clark around West Philadelphia and, while in the car, Leis 

and Clark smoked crack cocaine and purchased more from 

[Appellant] . . . until they ran out of money. 

In an effort to continue with their drug use, Leis, Clark, and 

[Appellant] agreed that Clark would perform oral sex on 

[Appellant] in exchange for more crack cocaine. [Appellant] then 

drove to a house located on 63rd Street, which the three entered 

after [Appellant] unlocked and opened the door. Once inside, 

[Appellant] and Clark went into a separate room for a few 

minutes, after which Leis, Clark[,] and [Appellant] exited the 

house and reentered [Appellant’s] car. While riding in the car, 

Leis asked [Appellant] if he and Clark “could have the drugs now?”

[Appellant] first ignored the question and then he made an excuse 

for delaying delivery of the drugs. [Appellant] next pulled the car 

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 901(a).
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in to a gas station and while he was pumping gas, Leis got out of 

the car and punched [Appellant] in the back of the head. 

[Appellant] then looked at Leis, and told him that he was going to 

“air him out,” which he later explained to mean kill/shoot him. 

[Appellant] then got back into his car and drove off, leaving Leis 

and Clark at the gas station.

A short time later, at about 9:54 or 9:55 a.m., while walking 

towards 63rd and Market Street, Leis and Clark clearly saw 

[Appellant] walking towards them with his hood up. When Leis 

and Clark observed [Appellant] reach for his waistband, they 

started running. As Leis ran, he lost sight of Clark, heard 

gunshots[,] and felt something in his side and back. Realizing 

that he was shot, Leis ran across the street covered in blood, 

where bystanders came to his aid. Within minutes, police officers 

responded to the incident and found Clark lying in the middle of 

the street in a puddle of blood suffering from multiple gunshots. 

Due to the severity of their wounds, [o]fficers immediately 

transported both complainants to the University of Pennsylvania 

Hospital. Leis was shot three times — once in his back, arm[,] 

and shoulder — and underwent two surgeries. Clark was shot 

several times in her upper body, underwent several extensive 

surgeries and temporally required the assistance of a walker.

Because of their conditions, neither complainant was able to 

speak to Southwest Detectives upon their initial arrival at the 

hospital. After surgery, both spoke briefly with detectives and 

were subsequently shown a photo array, where they immediately 

identified [Appellant] as the shooter. Leis also directed Detectives 

to Clark’s purse which contained a piece of paper where the 

[Appellant] had written his phone number and where Clark had 

written, Shizz, the name given to them by [Appellant]. After 

properly obtaining a warrant, Detectives contacted the phone 

company and discovered that the phone number was subscribed 

to Ruby M. Pettaway, [Appellant’s] mother. Detectives were also 

able to retrieve the incoming and outgoing call log and 

geographical location where the calls were placed in order to 

locate [Appellant]. [Appellant] turned himself into the police on 

October 15, 2011. Both complainants, while testifying, identified 

[Appellant] in court as the person who shot them.

PCRA Ct Op., 1/13/20, at 1-3 (unpaginated) (record citations omitted). 
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Appellant was subsequently arrested and charged with, inter alia, two 

counts each of attempted murder, aggravated assault, and possession of an 

instrument of crime.3 He was also charged with one count each of persons 

not to possess firearms, carrying a firearm without a license, and carrying a 

firearm on a public street in Philadelphia.4 On August 31, 2012, a jury found 

Appellant guilty of all charges. Appellant was sentenced to an aggregate term 

of 30 to 60 years’ imprisonment across both dockets. This Court affirmed the

judgment of sentence on direct appeal, and the Pennsylvania Supreme Court 

denied allocatur review. See Commonwealth v. Pettaway, 935 EDA 2013 

& 937 EDA 2013 (Pa. Super. Aug. 19, 2014), appeals denied, 466 EAL 2014 

& 467 EAL 2014 (Pa. Feb. 19, 2015). 

On December 30, 2015, Appellant timely filed his first PCRA petition pro 

se. Counsel was appointed and filed an amended petition on April 25, 2018,

followed by a supplemental petition on September 25, 2018.5 The 

Commonwealth filed a motion to dismiss Appellant’s amended petition on 

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3 18 Pa.C.S. §§ 2702(a), 907(a). The charges involving the shooting of Clark 

were filed at trial docket number CP-51-CR-0012479-2011 (Docket 12479), 

and the charges involving the shooting of Leis were filed at trial docket number 

CP-51-CR-0012480-2011 (Docket 12480).

4 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108. The firearms offenses were 

charged on Clark’s docket (Docket 12479). 

5 The certified record does not contain the September 25th, supplemental 

petition.
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October 11, 2018. Appellant then filed both a motion for leave to amend his 

petition, and a second, amended PCRA petition on December 11, 2018.6 The 

Commonwealth filed an additional response on February 5, 2019. On July 8, 

2019, the PCRA court sent notice to Appellant of its intent to dismiss his 

petition without a hearing pursuant to Pa.R.Crim.P. 907. On July 29, 2019, 

Appellant filed an objection to the court’s Rule 907 notice. Ultimately, an 

order dismissing Appellant’s PCRA petition was entered on August 7, 2019. 

Appellant filed separate notices of appeal from each of his two dockets 

on September 6, 2019.7 On September 24, 2019, Appellant was ordered to 

file a Pa.R.A.P. 1925(b) concise statement, which he timely filed on October 

15, 2019. Appellant’s cases were consolidated sua sponte by order of this 

Court dated October 16, 2019. Order, 10/16/19. The PCRA court filed a 

Pa.R.A.P. 1925(a) opinion on January 13, 2020. 

Appellant presents the following issues for our review:

1. Did the PCRA court err when it held that Appellant was not 

prejudice[d] by [Trial Counsel’s] failure to object to prosecutorial 

misconduct during closing arguments where the Commonwealth 

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6 Although no order granting the motion to amend is included in the certified 

record, the docket indicates the court granted the motion on December 12, 

2019. See Docket 12479 at 12/12/18; Docket 12480 at 12/12/18; 

Pa.R.Crim.P. 905(A) (“The judge may grant leave to amend or withdraw a 

petition for post-conviction collateral relief at any time. Amendment shall be 

freely allowed to achieve substantial justice.”).

7 Appellant has thus complied with the requirements of Commonwealth v. 

Walker, 185 A.3d 969, 977 (Pa. 2018) (“[W]hen a single order resolves issues 

arising on more than one lower court docket, separate notices of appeal must 

be filed.”).
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misled the jury regarding the facts in evidence and burden of 

proof?

2. Did the PCRA court err when it held that Appellant was not 

prejudice[d] by [Trial Counsel’s] failure to call a known 

exculpatory witness?

Appellant’s Brief at 2. 

Our review of Appellant’s issues is guided by well-established principles. 

When reviewing the denial of a PCRA petition, our standard of review is limited 

to examining whether the PCRA court's determination is “supported by the

record and is free of legal error.” Commonwealth v. Sneed, 45 A.3d 1096, 

1105 (Pa. 2012) (citation omitted). We are to view the evidence in the light 

most favorable to the prevailing party in the PCRA proceedings. 

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). We note, 

however, that:

[T]he PCRA court has the discretion to dismiss a petition without 

a hearing when the court is satisfied that there are no genuine 

issues concerning any material fact, the defendant is not entitled 

to post-conviction collateral relief, and no legitimate purpose 

would be served by any further proceedings. To obtain reversal 

of a PCRA court’s decision to dismiss a petition without a hearing, 

an appellant must show that he raised a genuine issue of fact 

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

or that the court otherwise abused its discretion in denying a 

hearing.

Sneed, 45 A.3d at 1105-06 (citations and quotation marks omitted). 

In the context of a collateral challenge based on ineffectiveness, counsel 

is presumed to have been effective. Sneed, 45 A.3d at 1106 (citation 

omitted). To overcome this presumption, a petitioner is required to show: (1) 

the claim is of arguable merit; (2) counsel lacked an objective, reasonable 
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basis for their actions; and (3) prejudice resulted from counsel’s deficient 

performance. Id. Failure to establish any of the three prongs of this test is 

fatal to the claim. Koehler, 36 A.3d at 132. Finally, “a court is not required 

to analyze the elements of an ineffectiveness claim in any particular order of 

priority; instead, if a claim fails under any necessary element of the [ ] test, 

the court may proceed to that element first.” Id. (citation omitted). 

Appellant’s first challenge alleges the PCRA court abused its discretion 

by dismissing his claim that Trial Counsel was ineffective for failing to object 

to prosecutorial misconduct. Appellant’s Brief at 5. He argues two statements 

made by the Commonwealth at closing served only to mislead the jury: the 

first, “that Appellant’s mother knew [Appellant] was guilty[,]” and the second, 

that the Commonwealth “had proved [Appellant’s] guilt to a ‘mathematical 

certainty[.]’” Id. at 9-10. Appellant contends an evidentiary hearing should 

have been held to assess whether Trial Counsel had reasonable basis for his 

failure to object. Id. at 10. 

Our Supreme Court has recognized: 

[A] claim of ineffective assistance grounded in trial counsel’s 

failure to object to a prosecutor’s conduct may succeed when the 

petitioner demonstrates that the prosecutor’s actions violated a 

constitutionally or statutorily protected right, such as the Fifth 

Amendment privilege against compulsory self-incrimination or the 

Sixth Amendment right to a fair trial, or a constitutional interest 

such as due process. To constitute a due process violation, the 

prosecutorial misconduct must be of sufficient significance to 

result in the denial of the defendant’s right to a fair trial. The 

touchstone is fairness of the trial, not the culpability of the 

prosecutor. Finally, not every intemperate or improper remark 

mandates the granting of a new trial; reversible error occurs only 
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when the unavoidable effect of the challenged comments would 

prejudice the jurors and form in their minds a fixed bias and 

hostility toward the defendant such that the jurors could not weigh 

the evidence and render a true verdict.

Koehler, 36 A.3d at 144, 139 (citations and quotation marks omitted). 

Additionally, the prosecution must be free to present their arguments with 

“logical force and vigor.” Sneed, 45 A.3d at 1110. Comments sounding in 

“oratorical flair” are not objectionable. Id. Moreover, where the allegedly 

improper remarks are expressed during closing, we review the argument as a 

whole. Id. 

In the present case, Trial Counsel proceeded on a theory Appellant’s 

older brother, Shahim Burnett, was the assailant.8 N.T. Trial, 8/31/12, at 73-

74, 82-84, 86. He argued that a trace of the telephone number provided to 

police by the victims returned the name of Appellant’s mother, “Ruby 

Pettaway,” and after determining she did not fit the general description of the 

perpetrator, police conducted a public search for the name “Pettaway.” Id. at 

82. The public search, Trial Counsel advanced, returned a result for Appellant, 

who was listed as sharing an address with his mother, and who resembles his 

older brother Shahim. Id. at 83-84. 

During trial, Appellant’s mother confirmed she had told detectives that, 

on the day of the shooting, she saw Shahim “getting out of bed” at “[a]round 

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8 Appellant is the youngest son of Ms. Ruby Pettaway. N.T. Trial, 8/31/12, at 

44. Appellant has two older brothers, Wallik Burnett, and Shahim Burnett. 

Id. at 44-45
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noon.”9 N.T., 8/31/12, at 52. She also confirmed that she told detectives she 

did not see Appellant at the house that morning, but rather, saw him for the 

first time “later in the day.” Id. at 53. 

Appellant now alleges, without citation to the notes of testimony, 

prosecutorial misconduct with respect to the Commonwealth’s 

characterization of Ms. Pettaway’s testimony at closing, as well as its own 

burden of proof: 

The only thing left is the brother did it. You can't use Wallik. He's

locked up in a federal penitentiary. We got one left. He doesn't 

look anything like [Appellant], different height, different skin 

color, at 22 North Hurst Street, as Ruby Pettaway told you. What 

better witness to tell you who did it than the mother? I was 

at home on Sunday. Shahim lives there with his girlfriend. I saw 

Shahim around noon.

The evidence in this case is clear. It’s compelling. It's convincing. 

It is proof beyond all doubt. It is proof to a moral and 

mathematical certainty that the man seated in this courtroom, 

the defendant, Nadir Pettaway, waited for, with malice 

aforethought and premeditation, waited at 63rd and Market . . . 

and when David Leis and Jessica Clark came down the street and 

came around the corner, he gunned them down.

N.T. Trial, 8/31/12, at 98-99 (emphasis added). 

In addressing this claim, the PCRA court found Appellant “failed to show 

that he was prejudiced by [Trial C]ounsel’s failure to object. PCRA Ct. Op., at 

6. The PCRA court explained:

There is no indication that there is a reasonable probability that 

the outcome of the proceedings would have been different had 

counsel not been ineffective in the relevant regard. The evidence 

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9 The shooting occurred at approximately 9:55 a.m. See N.T., 8/29/12, at 

184-85.
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of [Appellant’s] guilt was overwhelming, where both victims 

identified [Appellant] as the individual who (1) sold them crack 

cocaine, (2) who drove them around while they smoked, (3) whom 

Ms. Clark performed oral sex on in-exchange for more drugs, (4) 

whom Mr. Leis punched, and (5) who ultimately gunned them both 

down. Additionally, the Commonwealth provided evidence of 

[Appellant’s] cell phone usage near the location of the shooting.

Id. at 5-6.

We agree. In the context of a three-day jury trial yielding three volumes 

of transcripts with more than 628 pages of testimony, the Commonwealth’s 

closing remarks did not have the unavoidable effect of creating “bias and 

hostility towards [Appellant,] such that the jurors could not weigh the 

evidence and render a true verdict.” See Koehler, 36 A.3d at 144. Rather, 

the Commonwealth’s remarks were the result of “logical force” and amount to 

nothing more than unobjectionable “oratorical flair.” See Sneed, 45 A.3d at 

1110. 

With regard to the comments about Appellant’s mother, we note the 

Commonwealth did not imply Ms. Pettaway identified Appellant as the shooter; 

instead, it commented on her testimony that Appellant’s brother was home at 

the time of the shooting. Moreover, we also disagree with Appellant’s 

contention that the Commonwealth “misled the jury regarding [its] burden of 

proof to a ‘mathematical certainty.’” Appellant’s Brief at 10. Again, we 

conclude the comment constituted “oratorical flair,” which emphasized the 

Commonwealth’s assessment that the evidence against Appellant was 

overwhelming. See Sneed, 45 A.3d at 1110. As such, our review of the 

record does not reveal the presence of legal error, and we decline to conclude 
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the PCRA court’s determination is not supported by the evidence. Koehler, 

36 A.3d at 131. 

Furthermore, notwithstanding Appellant’s passive mention of the need 

for an evidentiary hearing “to assess whether trial counsel had reasonable 

basis for his failure to object[,]” the PCRA court possessed the authority to 

dismiss Appellant’s petition solely for his failure to show that “but for counsel’s 

actions, there [was] a reasonable probability the outcome of the case would 

have been different.” See Appellant’s Brief at 10; see also Koehler, 36 A.3d 

at 132. We remind Appellant, failure to satisfy any prong of our assessment 

is fatal to the claim. See Koehler, 36 A.3d at 132. Accordingly, Appellant is 

entitled to no relief on his first question. 

In support of his second challenge, Appellant argues Trial Counsel was 

ineffective for failing to call a known exculpatory witness, Michael Murphy. 

Appellant’s Brief at 12. He contends Murphy, who claims to have seen a man 

walking down the street with a gun after the shooting, would have testified 

“Appellant . . . was not the man with a gun.” Id. at 13. Appellant maintains 

Murphy’s testimony “is sufficient to establish a reasonable doubt as to 

Appellant’s guilt.” Id. at 14. 

To succeed on a claim trial counsel was ineffective for failing to call an 

additional witness, Appellant must show: (1) the witness existed; (2) such 

witness was available and (3) willing to testify for the defense; (4) counsel 

knew or should have known of the existence of the witness; and (5) “the 

absence of the testimony of the witness was so prejudicial as to have denied 
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the defendant a fair trial.” Sneed, 45 A.3d at 1108-09. Appellant also bears 

the burden of showing “how the uncalled witnesses’ testimony would have 

been beneficial under the circumstances of the case.” Id. at 1109 (citation 

omitted). Finally, decisions regarding the presentation of witnesses generally 

involve a matter of trial strategy; as such, the failure to call a witness is not 

per se ineffective assistance of counsel. Id.

Appellant attached to his December 11, 2018, amended PCRA petition, 

the following handwritten statement by Murphy:

On [October] 9, 2011[,] I was on my way out front of my

[apartment] at the time to catch a smoke and to get myself a 

coffee when I heard something that sounded like gunshots. After 

a few minutes of smoking my cigarette[,] I saw a short but stocky 

built[,] dark skin gentlemen [sic] walking with a gun out on his 

side. After I saw [the] gentlemen [sic] with [a] gun[,] I 

immediately went back inside. All I can remember about the man 

was his puffy beard and the gun. And the gentlemen [sic] I saw 

was surely not [Appellant]. 

Appellant’s Petition for Relief Pursuant to the Post Conviction Relief Act, 

12/11/18, Attachment A, Statement of Michael Murphy, 12/3/18 (Murphy’s 

Statement). Appellant also included a handwritten statement by his father, 

Herbert Pettaway,10 who claimed Murphy told him Appellant was not the 

shooter, and he relayed that information to Trial Counsel a month after the 

shooting. See id., Attachment B, Statement of Herbert Pettaway, 12/3/18.

In response to Appellant’s contentions, the PCRA court opined that 

Appellant has not demonstrated the necessary prejudice with regard to Trial 

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10 See N.T., 8/30/12, at 86 (Appellant identified Herbert Pettaway as his father 

to detectives).
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Counsel’s decision not to call Murphy as a witness. PCRA Ct. Op. at 7. The 

court explained Murphy’s statement “describes who left the scene[,] but does 

not exculpate [Appellant] as Murphy does not claim to have seen the actual 

shooting.” Id. Thus, the court concluded, “the uncalled witness would not 

have been ‘beneficial under the circumstances of the case.’” Id. (citation 

omitted).

Here, although Appellant purports to assert Murphy “was available to 

testify[,]”Murphy’s statement does not aver that he was both, available and 

willing to testify at the time of trial. See Appellant’s Brief at 13; see Murphy’s 

Statement; see also Sneed, 45 A.3d at 1108-09. Appellant’s claim fails on 

this basis alone. 

Moreover, Appellant has also not shown the absence of Murphy’s 

testimony was so prejudicial as to have denied him a fair trial. See Sneed, 

45 A.3d at 1109. We agree with the PCRA court’s determination that the 

proposed testimony “does not exculpate [Appellant.]” See PCRA Ct. Op. at 7. 

Indeed, Murphy’s account does not free Appellant from blame or accusation, 

but demonstrates only that Murphy possessed no firsthand knowledge of the 

shooting. See Sneed, 45 A.3d at 1109. Although “Murphy approached 

[Appellant’s father] after Appellant was arrested in this matter and shared this 

exculpatory information[,]” the proposed testimony would not have been 

beneficial “under the circumstances of the case.” See Appellant’s Brief at 13; 

see also Sneed, 45 A.3d at 1109. Like the first issue, we conclude the PCRA 

court’s ruling is supported by the evidence of record, and not legally 
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erroneous. See Koehler, 36 A.3d at 144. Under these circumstances, 

Appellant has not demonstrated the requisite prejudice and Trial Counsel’s 

performance cannot therefore be categorized as ineffective. No relief is due. 

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/5/21