J-S27007-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY LAMAR MCWHITE 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 61 WDA 2021

Appeal from the PCRA Order Entered February 26, 2021

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0001700-2010

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: DECEMBER 30, 2021

Appellant, Anthony Lamar McWhite, appeals from the order entered on 

February 26, 2021, which denied his first petition filed under the 

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

The facts and procedural history of Appellant’s case are as follows. On 

May 3, 2010, Appellant was charged with homicide.

1 PCRA Court Opinion,2

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2501.

2 The Honorable Debra A. Pezze presided over Appellant’s underlying jury trial 

proceedings and the beginning of his PCRA proceedings. Judge Pezze 

authored the first PCRA Court Opinion, entered January 8, 2015. Judge Pezze 

passed away in 2016 and, thereafter, Appellant’s case was reassigned to the 

Honorable Timothy A. Krieger. Judge Krieger authored the PCRA Court 

Opinion, entered February 25, 2021.
J-S27007-21

- 2 -

2/25/21, at 1. The PCRA court aptly summarized the relevant evidence 

adduced at trial:

On April 3, 2010, at approximately 8:49 p.m., Shawntez “Sleeze” 

Weems was shot in the back while on his way to make a drug sale, 

walking down Constitution Boulevard, in the City of New 

Kensington, Westmoreland County, Pennsylvania. Eight 

discharged cartridge casings consistent with a .40 caliber gun 

were discovered in an area between an abandoned building and 

an apartment building located on Constitution Boulevard.

Shortly before the shooting, a witness saw [Appellant] standing in 

the shadows across the street from Weems’s residence. Two 

witnesses saw Weems come out of his house and walk down the 

street. They then saw [Appellant] follow him. Several minutes 

later, they heard gunshots.

The Commonwealth additionally provided evidence that on May 

29, 2008, [Appellant] was pistol whipped and robbed. [Appellant] 

learned that Weems was involved in this incident and, in the 

aftermath, made threats to retaliate against him. One of the 

Commonwealth witnesses testified that shortly before Weems was 

shot, [Appellant] said that he was going to kill him. Another 

testified that he saw [Appellant] in the afternoon on the day 

Weems was shot and heard [Appellant] say that he was going to 

“put a cap in Sleeze” because Sleeze took his drugs and money 

and that they could “get” Sleeze “outside of his crib, referring to 

his house.”

Sheldon “Pete” Pinnock, and Erica O’Neal, Pinnock’s girlfriend, 

were at the mall on the night Weems was killed. Pinnock received 

a telephone call from [Appellant] who said that he was walking 

behind Weems and that he “had the drop on him.” [Appellant] 

asked Pinnock to pick [Appellant] up at Pinnock’s girlfriend’s 

house. In a subsequent telephone call, [Appellant] told Pinnock 

that he shot Weems. Pinnock met [Appellant] and drove him to 

his car. On the ride to [Appellant’s] car, [Appellant] told Pinnock 

that he had just shot at Sleeze with a .40 caliber gun. [Appellant] 

asked Pinnock to get rid of the gun for him and told Pinnock that 

he had hidden it in a bag under the porch stairs at Pinnock’s 

girlfriend’s house.

After dropping off [Appellant], Pinnock retrieved the gun and gave 

it to Don Moyer with instructions to take the gun to Esquipula 
J-S27007-21

- 3 -

“Polo” Griego’s house. A week or so later, Pinnock went to jail 

and telephoned Griego, telling him to throw the gun in the river. 

Subsequently, Griego took police to the place where he disposed 

of the firearm. Divers were able to locate and secure the gun from 

the water. The firearm found in the river was a .40 caliber Glock 

handgun. An analysis of tool markings associated with this 

weapon showed that all eight cartridge casings found between the 

buildings on Constitution Boulevard were discharged from it.

Latoyia Graves testified that she was [Appellant’s] girlfriend and 

that she was with [Appellant] on April 3, 2010. On that date, the 

two rode dirt bikes into the early evening. Around 7:00 p.m., they 

went to [Appellant’s] mother’s house, located on Fifth Avenue in 

the City of New Kensington. [Appellant’s] mother’s house was 

“close to a mile” from where Weems was killed. [Appellant] took 

a shower and then Graves took a shower. [Appellant], without 

Graves, left the house for about [20] or [30] minutes. Graves 

testified that she and [Appellant] then went to Pittsburgh after it 

was dark outside but before 8:00 p.m.

On direct examination, Graves acknowledged that she had been 

convicted of [r]eceiving [s]tolen [p]roperty in 2003 and 

volunteered that she was “on [f]ederal probation, supervised 

release, for distribution of crack cocaine.” On cross-examination, 

the prosecutor asked Graves two questions about the sentence 

she received in federal court. On re-direct examination, counsel 

for [Appellant] asked Graves if she was doing well while on federal 

probation. The court sustained the prosecutor’s objection after 

defense counsel stated before the jury that Graves has “absolutely 

no problem on probation, going to school, that she has a good 

relationship with her probation officer.” No instruction to 

disregard counsel’s statement was requested by the prosecutor or 

given by the court. Additional testimony was offered that, at one 

point during the investigation, Graves was interviewed by police 

at the Federal Probation Office.

On May 2, 2010, Officer Samuel Long, of the New Kensington 

Police Department, saw [Appellant] driving a black Buick with 

tinted windows. He knew that there was an arrest warrant for 

[Appellant]. This warrant was issued for criminal charges not in 

connection with the homicide. As officers followed [Appellant’s] 

car, [Appellant] jumped out of the vehicle. [Appellant] was found 

hiding under a nearby car and taken into custody.
J-S27007-21

- 4 -

Marvin Ainsco, in a non-responsive answer to a question by the 

prosecutor, stated that he knew [Appellant] as a “drug dealer.” 

Another witness, Erin Jarosinski, testified that she was with 

[Appellant] on January 12, 2010, when he made statements 

threatening the victim. She said that they had been going 

together to get drugs and that she knew [Appellant] because he 

sold drugs. Jarosinski also admitted that she was a drug addict 

during the time she knew [Appellant]. No other reference was 

made to drug dealing activity on the part of [Appellant].

Id. at 4-7 (citations to the record omitted). On July 17, 2012, a jury found 

Appellant guilty of murder in the first degree and Appellant was sentenced to 

life without the possibility of parole. Id. Appellant’s judgment of sentence 

was affirmed on August 23, 2013. See Commonwealth v. McWhite, 2013 

WL 11256408 (Pa. Super. 2013) (unpublished decision). 

Relevant to the current appeal, the PCRA court summarized:

On October 8, 2013, [Appellant], acting pro se, filed a timely 

[PCRA] petition[.] Issues raised in this pro se petition were: (1) 

[i]neffective assistance of counsel in failing to object to references 

to [Appellant] as a “known drug dealer”; (2) [i]neffective 

assistance of counsel in failing to object to evidence that the police 

arrested [Appellant] on a warrant issued for other criminal 

offenses; and (3) [i]neffective assistance of counsel in failing to 

object to a jury instruction regarding flight as evidence of guilt. 

Counsel was appointed to represent [Appellant] in this 

proceeding.

On February 25, 2014, an amended PCRA petition was filed by 

counsel on [Appellant’s] behalf. This counseled petition raised the 

issues set forth in [Appellant’s] pro se petition as well as an 

additional issue of ineffectiveness of counsel for failing to object 

to evidence that [Appellant’s] alibi witness had been convicted of 

cocaine distribution.

On September 16, 2014, counsel filed a second amended PCRA 

petition raising the issue of ineffectiveness of counsel for failing to 

call Austin King, an [additional] alibi witness for [Appellant].
J-S27007-21

- 5 -

PCRA Court Opinion, 2/25/21, at 2. On January 8, 2015, the PCRA court filed 

an opinion addressing Appellant’s issues and an order giving notice of its intent 

to dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. See PCRA 

Court Notice of Intent to Dismiss, 1/8/15. On January 21, 2015, Appellant, 

through counsel, filed a response to the PCRA court’s notice, within which he 

requested to further investigate and develop his claim with respect to alibi

witness Austin King. See Response to Notice of Intent to Dismiss, 1/21/15. 

On March 27, 2015, the PCRA court granted Appellant’s request to further 

develop his alibi witness claim and elected not to issue an order formally 

dismissing his other claims at that time. See PCRA Court Order, 3/27/15.

In the ensuing years, Appellant, through various appointed counsel, 

pursued investigation of his alibi witness claim. See PCRA Court Opinion, 

2/25/21, at 3. Ultimately, an evidentiary hearing was held on December 18, 

2020, at which time Appellant withdrew his PCRA claim “insofar as it raised 

[the issue concerning ineffectiveness of counsel in failing to investigate and 

call Austin King as an alibi witness for [Appellant].” Id. at 3-4. Accordingly, 

the PCRA court entered a final order denying and dismissing Appellant’s PCRA 

petition on February 26, 2021. This appeal followed.3

____________________________________________

3 Appellant filed a notice of appeal on January 4, 2021, prior to the PCRA 

court’s final order entered on February 26, 2021. We treat his notice of appeal 

as timely filed on the day upon which the final appealable order was entered. 

See Pa.R.A.P. 905. Appellant and the PCRA court complied with the dictates 

of Pa.R.A.P. 1925.
J-S27007-21

- 6 -

Appellant raises the following issues on appeal:

1. Whether the [PCRA c]ourt erred in determining trial counsel 

provided effective assistance of counsel despite their failure to 

object to or request a limiting jury instruction regarding witness 

testimony regarding the Appellant’s involvement in the 

distribution of controlled substances?

2. Whether the [PCRA c]ourt erred in determining trial counsel 

provided effective assistance of counsel despite [eliciting 

testimony] that the Appellant was arrested on separate pending 

criminal charges during cross-examination of Officer Samuel 

Long?

3. Whether the [PCRA c]ourt erred in determining trial counsel 

provided effective assistance of counsel despite their failure to 

object to irrelevant evidence that alibi witness Latoyia Graves was 

on probation for distribution of cocaine, which was not admissible 

to impeach her credibility?

4. Whether the [PCRA c]ourt erred in determining trial counsel 

provided effective assistance of counsel despite their failure to 

object to the flight and concealment as consciousness of guilt 

instruction despite a lack of evidence the Appellant was aware he 

was being pursued for homicide charges at the time of the alleged 

flight?

Appellant’s Brief at 3-4.

Our standard of review for challenges to the denial and dismissal of 

petitions filed pursuant to the PCRA is well-settled.

We must determine whether the findings of the PCRA court are 

supported by the record and whether the court's legal conclusions 

are free from error. The findings of the PCRA court and the 

evidence of record are viewed in a light most favorable to the 

prevailing party. The PCRA court's credibility determinations, 

when supported by the record, are binding; however, this [C]ourt 

applies a de novo standard of review to the PCRA court's legal 

conclusions. We must keep in mind that the petitioner has the 

burden of persuading this Court that the PCRA court erred and 

that such error requires relief. Finally, this Court may affirm a 

valid judgment or order for any reason appearing of record.
J-S27007-21

- 7 -

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations 

omitted).

All of Appellant’s claims assert that trial counsel was ineffective. 

Counsel is presumed to be effective and “the burden of demonstrating 

ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10 

A.3d 1276, 1279 (Pa. Super. 2010).

To satisfy this burden, an appellant must plead and prove by a 

preponderance of the evidence that[ ] (1) his underlying claim is 

of arguable merit; (2) the particular course of conduct pursued by 

counsel did not have some reasonable basis designed to effectuate 

his interests; and, (3) but for counsel's ineffectiveness, there is a 

reasonable probability that the outcome of the challenged 

proceeding would have been different. Failure to satisfy any prong 

of the test will result in rejection of the appellant's ineffective 

assistance of counsel claim.

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

citations and quotation marks omitted). As this Court explained:

A claim has arguable merit where the factual averments, if 

accurate, could establish [grounds] for relief. See 

Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) (“if a 

petitioner raises allegations, which, even if accepted as true, do 

not establish the underlying claim . . . , he or she will have failed 

to establish the arguable merit prong related to the claim”). 

Whether the facts rise to the level of arguable merit is a legal 

determination.

The test for deciding whether counsel had a reasonable basis for 

his action or inaction is whether no competent counsel would have 

chosen that action or inaction, or, the alternative, not chosen, 

offered a significantly greater potential chance of success. 

Counsel’s decisions will be considered reasonable if they 

effectuated his client's interests. We do not employ a hindsight 

analysis in comparing trial counsel's actions with other efforts he 

may have taken. 
J-S27007-21

- 8 -

Prejudice is established if there is a reasonable probability that, 

but for counsel’s errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some 

quotations and citations omitted). 

Appellant claims that trial counsel was ineffective for eliciting, failing to 

object to, or failing to limit the introduction of references to: (1) Appellant 

being a drug dealer (2) Appellant’s flight from law enforcement as police 

officers attempted to arrest Appellant for an unrelated charge; and (3) alibi

witness Graves’ distribution of crack cocaine conviction. Appellant’s Brief at 

9. He also claims that trial counsel was ineffective for failing to object to a jury 

instruction, which permitted the jury to consider his flight as consciousness of 

guilt. Id. We examine Appellant’s first three claims together.

Our Supreme Court previously explained:

Counsel [is] not constitutionally required to forward any and all 

possible objections at trial, and the decision of when to interrupt 

oftentimes is a function of overall defense strategy being brought 

to bear upon issues which arise unexpectedly at trial and require 

split-second decision-making by counsel. The fact that an 

appellate court, reviewing a cold trial record, cannot prognosticate 

a reasonable basis for a particular failure to raise a plausible 

objection does not necessarily prove that an objectively 

reasonable basis was lacking. Objections sometimes highlight the 

issue for the jury, and curative instructions always do.

Commonwealth v. Spotz, 870 A.2d 822, 832 (Pa. 2005). It is a PCRA 

petitioner’s burden to demonstrate that no competent counsel would have 

chosen a particular course of action or inaction, or that an unchosen 
J-S27007-21

- 9 -

alternative offered a significantly greater potential chance of success. 

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-1044 (Pa. Super. 

2019). Appellant is also required to make an actual showing of prejudice. Id.

at 834-835. 

We have carefully reviewed the certified record, the relevant law, the 

notes of testimony, the submissions of the parties, and the PCRA opinions 

issued by Judge Pezze and Judge Krieger, respectively. Based upon our 

review, we agree with the able discussion and analysis provided by the PCRA 

courts on Appellant’s first three issues. They noted, inter alia, that (1) 

references to Appellant as a drug dealer would be permitted as motive 

evidence and trial counsel reasonably chose to overlook them because such 

references would “otherwise go unnoticed among the repeated references to 

drug dealing on the part of the victim and other Commonwealth witnesses;” 

(2) for similar reasons, Appellant could not demonstrate prejudice by alibi

witness Graves’s volunteered testimony of her own drug involvement; and (3) 

eliciting testimony that officers arrested Appellant on an unrelated charge was 

a reasonable strategy to rebut the Commonwealth’s inference that Appellant 

fled from officers because he was guilty of the homicide. See PCRA Court 

Opinion, 2/25/21; PCRA Court Opinion, 1/8/15. Thus, we affirm the dismissal 

order on the grounds set forth in the PCRA courts’ prior opinions. Id.

In his fourth issue, Appellant challenges trial counsel’s effectiveness in 

failing to object to a jury instruction regarding flight as evidence of guilt. 
J-S27007-21

- 10 -

Appellant argues that “[t]here is simply no evidence to suggest [ ] Appellant 

was aware he would be charged with homicide when he attempted to flee from 

Officer [Samuel] Long.” Appellant’s Brief at 28-29. The Commonwealth 

rebuts Appellant’s contention by citing to notes of testimony from the jury trial 

which established that Appellant contacted a friend to transport him from the 

crime scene, confessed to that friend that he shot someone, and asked that

friend to dispose of the gun. Commonwealth’s Brief at 23. 

A jury charge is proper if supported by the evidence of record. 

Commonwealth v. Washington, 692 A.2d 1024, 1028 ([Pa.] 

1997). [Our Supreme] Court has held that “when a person 

commits a crime, knows that he is wanted therefor, and flees or 

conceals himself, such conduct is evidence of consciousness of 

guilt, and may form the basis of a conviction in connection with 

other proof from which guilt may be inferred.” Commonwealth 

v. Rios, 684 A.2d 1025, 1025 ([Pa.] 1996), quoting

Commonwealth v. Coyle, 203 A.2d 782, 789 ([Pa.] 1964).

Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (cleaned up; parallel 

citations omitted). 

Appellant’s challenge argues that the record is devoid of evidence 

demonstrating his guilty knowledge. Guilty knowledge, however, may be 

inferred by circumstantial evidence. Commonwealth v. Robinson, 128 A.3d 

261, 267 (Pa. Super. 2015). Here, multiple witnesses testified that they heard 

Appellant make threats toward Weems prior to and including the day of his 

death. Subsequently, Appellant confessed to Pinnock that he shot Weems 

when he asked Pinnock to pick him up. He later told Pinnock that he shot 

Weems with a .40 caliber gun, hid the murder weapon, and asked Pinnock to 
J-S27007-21

- 11 -

dispose of it. Accordingly, sufficient circumstantial evidence supported the

inference of guilty knowledge, as required for a jury instruction regarding flight 

as evidence of consciousness of guilt. Thus, the trial court would have 

properly overruled any objection to the jury instruction. PCRA Court Opinion, 

1/8/15, at 3. Moreover, Appellant fails to establish in what way he was 

prejudiced by such jury instruction when “the Commonwealth’s evidence in 

support of a conviction was overwhelming.” PCRA Court Opinion, 2/25/21, at 

14; see also Rios, 684 A.2d at 1025 (flight instruction may form basis of 

conviction “in connection with other proof from which guilt may be inferred”). 

Thus, Appellant’s fourth issue warrants no relief.

We affirm the dismissal of Appellant’s petition. Because we adopt a 

portion of the PCRA courts’ opinions, the parties are directed to attach a copy 

of the January 8, 2015 and February 25, 2021 PCRA court opinions to all future 

filings pertaining to the disposition of this appeal.

Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2021