J-S04020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF PENNSYLVANIA

Appellee

v.

MAURICE ANDREWS

Appellant No. 1492 EDA 2019

Appeal from the PCRA Order entered April 24, 2019

In the Court of Common Pleas of Montgomery County

Criminal Division at No: CP-46-CR-0004380-2013

BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.: FILED MAY 11, 2020

Appellant, Maurice Andrews, appeals from the April 24, 2019 order 

dismissing his petition for collateral relief under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. This matter is before us after we 

remanded with directions to the PCRA court to give Appellant the opportunity 

to amend his PCRA petition to address his claim of ineffective assistance of 

counsel for failure to call a witness. See Commonwealth v. Andrews, No. 

598 EDA 2015, unpublished memorandum (Pa. Super. filed April 15, 2016). 

After holding a hearing, the PCRA court denied Appellant’s claim and dismissed 

the PCRA petition because Appellant failed to prove that counsel was 

ineffective. We agree. Accordingly, we affirm the order of the PCRA court.

We summarized the factual background and procedural history of this 

matter in our previous memorandum, which we incorporate herein by 
J-S04020-20

- 2 -

reference. Id. at 2-4.

1 Briefly,2 Appellant and co-defendant ambushed victim 

when victim exited the bar. While victim struggled with co-defendant for 

control of co-defendant’s revolver, Appellant shot victim five times, killing him. 

Co-defendant also was hit by Appellant’s gunfire and was wounded in the leg 

and hand. Appellant and co-defendant fled the scene separately.

After being apprehended several hours after the shooting, co-defendant 

gave the investigators several statements implicating Appellant as the 

shooter. Appellant was apprehended a few weeks later at his aunt’s home. 

After a trial, Appellant was convicted, inter alia, of third degree murder 

and conspiracy to commit third degree murder and was sentenced to an 

aggregate term of 35 to 70 years’ incarceration. 

We affirmed the judgment of sentence on April 15, 2016. See

Andrews, No. 598 EDA 2015, unpublished memorandum (Pa. Super. filed 

April 15, 2016). 

Appellant filed his first PCRA petition on February 15, 2017, wherein he 

raised several claims of ineffective assistance of trial counsel, including a claim 

of ineffective assistance of counsel for failing to call Mr. White3 as a witness 

____________________________________________

1 See Commonwealth v. Andrews, No. 2325 EDA 2017, unpublished 

memorandum (Pa. Super. filed September 6, 2018). 

2 Unless otherwise stated, the summary comes from the PCRA Court opinion.

3 At the time of trial, Mark White, Appellant’s uncle, was being held on a 

material witness warrant. Neither the Commonwealth nor Appellant called 

Mark White as a witness at trial. 
J-S04020-20

- 3 -

at trial. The PCRA court dismissed Appellant’s PCRA petition without holding 

a hearing.

We vacated the portion of the order denying relief on Appellant’s claim 

of ineffective assistance of counsel for failing to call Mark White as a witness 

because the PCRA court did not first give Appellant the opportunity to amend 

his petition to correct the procedural deficiencies related to his claim. See

Andrews, No. 2325 EDA 2017, supra. 

Upon remand, Appellant filed an amended PCRA petition, renewing his 

ineffectiveness claim regarding Mark White. After holding a hearing, the PCRA 

court denied relief and dismissed the PCRA petition. This appeal followed.

On appeal, Appellant argues that the trial court erred in not finding trial 

counsel ineffective for failing to call Mr. White as a witness at trial. We 

disagree.

In addressing ineffective assistance of counsel claims, we are guided by 

the following authorities:

[A] PCRA petitioner will be granted relief [for ineffective assistance 

of counsel] only when he proves, by a preponderance of the 

evidence, that his conviction or sentence resulted from the 

“[i]neffective assistance of counsel which, in the circumstances of 

the particular case, so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken 

place.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed 

effective, and to rebut that presumption, the PCRA petitioner must 

demonstrate that counsel’s performance was deficient and that 

such deficiency prejudiced him.” Commonwealth v. Colavita, 

993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington, 

466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the 

Strickland performance and prejudice test into a three-part 

inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 
J-S04020-20

- 4 -

2001). Thus, to prove counsel ineffective, the petitioner must 

show that: (1) his underlying claim is of arguable merit; 

(2) counsel had no reasonable basis for his action or inaction; and 

(3) the petitioner suffered actual prejudice as a result. 

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (citations 

modified). A petitioner’s failure to satisfy any one element of the test will 

result in the rejection of his claim. Commonwealth v. Jones, 811 A.2d 994, 

1002 (Pa. 2002). 

Regarding the specific issue here, it is worth noting that the decision to 

call a particular witness implicates matters of trial strategy. See

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). Thus, 

Appellant must “prove that the strategy employed by trial counsel was so 

unreasonable that no competent lawyer would have chosen that course of 

conduct.” Commonwealth v. Chmiel, 889 A.2d 501, 541 (Pa. 2005) 

(internal quotation marks and citation omitted). 

At the evidentiary hearing, Mr. White testified 

that prior to Appellant’s trial, he gave two statements to law 

enforcement, and he also testified before the grand jury in 

between his two statements.

Mr. White testified that his first statement, wherein he indicated 

that he did not see Appellant and [co-defendant] on the night of 

the murder, was a lie. He testified that his grand jury testimony 

was true and further added that he was not [at location of murder] 

when the gunshots were fired, though he did hear the shots 

because he was just a few block away. Mr. White also testified 

that he was prepared to testify at Appellant’s trial consistent with 

what he told the grand jury. He stated that he never told [trial 

counsel] that he wanted to testify, and does not recall if he told 

Appellant.
J-S04020-20

- 5 -

[Trial counsel testified that he spoke to Mr. White on multiple 

occasions, but he never told counsel that he wanted to testify or 

that he was interested in testifying.] [Trial counsel] testified that 

[Mr. White’s testimony] was harmful to Appellant because it 

placed him at the scene of the murder shortly before the murder 

and established that Appellant and [co-defendant] specifically 

[intended] to “holler’ at victim. In [trial counsel]’s professional 

opinion, the testimony would have hindered Appellant’s case 

because it corroborated and verified [co-defendant] version of 

events, which was the Commonwealth’s theory of the case.

[Trial counsel] further explained that Mr. White’s testimony was 

damaging because it placed a gun in the hands of [co-defendant] 

just before the murder; it put a gun in Appellant’s hands on 

another occasion; and it was inconsistent with his prior statement, 

which would have shown the jury that he was a liar. [Trial 

counsel] also testified that he had several discussions with both 

Appellant and his mother about the potential of calling Mark White 

as a witness.

PCRA Court Opinion, 8/19/19, at 3-4.

In denying relief, the PCRA court noted that

the . . . record is replete with strategic bases for trial counsel’s

decision not to call Mark White as a witness. At the evidentiary 

hearing, [trial counsel] testified that his strategy regarding Mark 

White was dependent on whether [co-defendant]’s statements 

came in at trial. [Trial counsel] described that Mark White’s

testimony would have been damning to the defense because it 

would have corroborated his grand jury testimony that placed 

Appellant at the scene of the murder at the time of the murder. 

Moreover, Mr. White’s testimony would have largely substantiated 

crucial aspects of [co-defendant]’s statements while counsel’s 

strategy was to attack [co-defendant]’s statement and show that 

his version of events was untruthful.

When [co-defendant] did testify at trial, the strategy pivoted. The 

strategy went from reasonable doubt to attacking [codefendant’s] statements, which included attempting to 

demonstrate that [co-defendant] was untruthful and pointing out 

the lack of corroboration of [co-defendant] version of events.

. . . .
J-S04020-20

- 6 -

[Trial counsel] acknowledged that there were slight 

inconsistencies between Mark White’s grand jury [co-defendant]’s 

statements. As a matter of trial strategy, however, he believed 

that calling Mark White to the stand to contradict “minor details” 

from [co-defendant]’s statements would not outweigh the 

injurious nature of his testimony corroborating crucial aspects of 

[co-defendant] statement.

. . . .

[Trial counsel] also explained that although Mark White’s grand 

jury testimony did not place a weapon in Appellant’s hand on the 

night of the murder, his testimony placed two different guns in 

Appellant’s hands on occasions prior to the murder. [Trial 

counsel] indicated that he could not be certain whether this 

evidence would be able to come in at trial, nonetheless, “it was a 

demining piece of evidence of him putting his nephew in 

possession of a firearm.” Thus, this was another factor in [trial 

counsel]’s decision not to call Mark White as witness. [Trial 

counsel] testified that the fact that Mark White gave several 

inconsistent statements and admitted that he lied, also played into 

his decision not to call him as a witness at trial. . . . 

The final decision not to call Mark White as witness, however, was 

not made until after the Commonwealth rested its case, at which 

time it was apparent that Mark White was not going to be called 

as a Commonwealth witness. Until that time, [trial counsel] 

assumed that Mr. White would be called as a Commonwealth 

witness because he was being held in prison on a material witness 

warrant for the duration of Appellant’s trial. As a matter of trial 

strategy, [trial counsel] chose to highlight the absence of Mark 

White, a potential eyewitness to the crime, in his closing argument 

to the jury.

Id. at 7-8 (citations to the record omitted).

The PCRA court found, and we agree, that trial counsel acted as a skilled 

and effective counsel, and that his decision not call Mr. White as a witness was 

certainly reasonable under the circumstances described above. Accordingly, 
J-S04020-20

- 7 -

we conclude Appellant failed to prove that trial counsel was ineffective for not 

calling Mark White as a witness. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/20