J-S63035-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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ANDRE FOGG,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 1335 EDA 2018

Appeal from the PCRA Order April 24, 2018

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0002601-2014

BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 08, 2020

Andre Fogg (Appellant) appeals from the April 24, 2018 order 

dismissing his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

The PCRA court provided the following procedural history.

On November 24, 2013, [Appellant] was arrested and 

charged with robbery, theft, receiving stolen property[,] 

terroristic threats and simple assault. [Appellant] was bound 

over for court on all charges following a preliminary hearing on 

March 6, 2014. [Appellant] was convicted after a bench trial of 

[the aforementioned crimes]. [Appellant] was sentenced to five 

to ten years’ imprisonment for the robbery[ and a consecutive 

term of] incarceration of one to two years for the terroristic 

threats. Post-sentencing motions were denied and a timely 

appeal filed with the Superior Court, which [Appellant] 

discontinued on August 6, 2015 [in favor of pursuing a PCRA 

petition].

[Appellant] filed a PCRA petition on February 5, 2016. 

Counsel was appointed and an amended petition subsequently 

filed. The Commonwealth filed a motion to dismiss on December 
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15, 2017. [Appellant] filed an amended petition and an 

evidentiary hearing was held on April 23, 2018.

PCRA Court Opinion, 4/24/2019, at 1-2. 

Relevant to this appeal, Appellant argued in his PCRA petition that trial 

counsel, Jules Szanto, was ineffective for failing to secure the appearance of 

alibi witness Brian Anderson at trial. Amended PCRA Petition, 6/9/2017, at 3 

(unnumbered). According to Appellant, this was a result of Attorney 

Szanto’s conflict of interest because he was an employee of the Defender 

Association of Philadelphia (DAP), and another DAP employee had previously 

represented Anderson. Id. at 3-4 (unnumbered). 

At the evidentiary hearing, the PCRA court heard testimony from 

Attorney Szanto, appellate counsel Karl Morgan, and Appellant. Attorney 

Szanto testified that he subpoenaed Anderson for Appellant’s trial. When 

Anderson failed to appear, Attorney Szanto requested a continuance to 

secure his presence because Attorney Szanto believed Anderson would have 

been a helpful witness. Anderson failed to appear at the next trial listing 

even though he had been subpoenaed a second time. Attorney Szanto 

testified that he believed Anderson did not appear because he did not want 

to be arrested on an outstanding bench warrant for an unrelated 2012 

driving under the influence (DUI) case. Attorney Szanto testified that he 

“pleaded” with Anderson to take care of the bench warrant and testify on 

Appellant’s behalf, but Anderson refused and stopped answering Attorney 

Szanto’s phone calls. N.T., 4/23/2018, at 8-10, 21-23. Attorney Szanto 
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testified that he explained this situation to Appellant, who responded, “Fuck 

it. Let’s roll.” Id. at 11. Attorney Szanto understood this to mean that 

Appellant wanted to proceed to trial without Anderson because Appellant 

found the complainant’s story “far[-]fetched[.]” Id. at 11-12.

Attorney Szanto also testified that he became aware that another 

attorney from DAP had represented Anderson in connection with the 2012 

DUI case. Despite this prior representation by a colleague, Attorney Szanto 

testified that he was concerned about Appellant’s case and not Anderson’s 

bench warrant. He further testified that he notified Appellant of a potential 

conflict of interest, but did not recall Appellant’s response. Id. at 11-12, 22. 

Contrarily, Appellant testified that Attorney Szanto did not notify him of the 

potential conflict or Anderson’s refusal to appear. Id. at 40, 42-43. 

The PCRA court dismissed Appellant’s PCRA petition on April 24, 2018. 

In concluding counsel did not render ineffective assistance, the PCRA court 

found Attorney Szanto’s testimony that he subpoenaed Anderson twice, 

Anderson refused to appear, and Appellant decided to go to trial without 

Anderson, credible. PCRA Court Opinion, 4/24/2019, at 5. Further, the 

PCRA court found that Appellant had failed to prove a conflict of interest that 

adversely affected Attorney Szanto’s performance. Id. at 7. 
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This timely-filed appeal followed.1 Appellant’s sole argument on 

appeal is that the PCRA court erred in dismissing Appellant’s PCRA claim that 

counsel was ineffective for failing to call Anderson due to a conflict of 

interest.

2

 Appellant’s Brief at 10. We begin with our standard of review.

This Court analyzes PCRA appeals in the light most 

favorable to the prevailing party at the PCRA level. Our review 

is limited to the findings of the PCRA court and the evidence of 

record and we do not disturb a PCRA court’s ruling if it is 

supported by evidence of record and is free of legal error. 

Similarly, we grant great deference to the factual findings of the 

PCRA court and will not disturb those findings unless they have 

no support in the record. However, we afford no such deference 

to its legal conclusions. Where the petitioner raises questions of 

law, our standard of review is de novo and our scope of review is 

plenary. Finally, we may affirm a PCRA court’s decision on any 

grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting 

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)). 

 

1 Appellant filed the instant notice of appeal pro se and failed to file timely 

the court-ordered Pa.R.A.P. 1925(b) statement. Because there was no 

indication in the record that the PCRA court had permitted PCRA counsel to 

withdraw, this Court ordered the PCRA court to determine Appellant’s 

representation status. As a result of that inquiry, counsel was appointed. 

Both Appellant and the PCRA court have now complied with Pa.R.A.P. 1925. 

The Commonwealth has not filed a brief with this Court.

2 Although Appellant raised four issues in his statement of questions, 

Appellant addressed his issues as a single claim in the argument section of 

his brief, in violation of Pa.R.A.P. 2119(a). Compare Appellant’s Brief at 4 

(statement of the questions involved listing four claims as to how the PCRA 

court erred) with Appellant’s Brief at 9-10 (argument section restating four 

claims but only presenting a single argument). Despite the violation, this 

Court will address Appellant’s claim as it does not substantially impede our 

review.
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As originally established by the United States Supreme Court 

in Strickland v. Washington, 466 U.S. 668, [] (1984), and 

adopted by Pennsylvania appellate courts, counsel is presumed 

to have provided effective representation unless a PCRA 

petitioner pleads and proves all of the following: (1) the 

underlying legal claim is of arguable merit; (2) counsel’s action 

or inaction lacked any objectively reasonable basis designed to 

effectuate his client’s interest; and (3) prejudice, to the effect 

that there was a reasonable probability of a different outcome at 

trial if not for counsel’s error.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citations 

omitted). “A failure to satisfy any prong of the ineffectiveness test requires 

rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963 

A.2d 409, 419 (Pa. 2009). 

When raising a claim of ineffectiveness for the failure to call a 

potential witness, a petitioner satisfies the performance and 

prejudice requirements of the [ineffective assistance of counsel]

test by establishing that: (1) the witness existed; (2) 

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

knew of, or should have known of, the existence of the witness; 

(4) the witness was willing to testify for the defense; and (5) the 

absence of the testimony of the witness was so prejudicial as to 

have denied the defendant a fair trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations 

omitted).

Regarding Appellant’s conflict-of-interest argument, we further 

observe the following. Our Supreme Court has held that an appellant cannot 

succeed on a conflict-of-interest claim absent a showing of actual prejudice. 

Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa. 2012). Prejudice 

is presumed “when the appellant shows that trial counsel was burdened by 

an actual—rather than mere potential—conflict of interest. To show an 
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actual conflict of interest, the appellant must demonstrate that: (1) counsel 

actively represented conflicting interests; and (2) those conflicting interests 

adversely affected his lawyer’s performance.” Id. (citation and internal 

quotation marks omitted).

In this respect, i.e., in focusing on the “active” nature of the 

conflict, the Court’s concern centers primarily on the potential 

for an attorney to alter his trial strategy due to extrinsic 

considerations stemming from other loyalties, thereby distorting 

counsel’s strategic or tactical decisions in a manner that would 

not occur if counsel’s sole loyalty were to the defendant. In this 

vein, courts sometimes assess adverse effect by questioning 

whether the record shows that counsel “pulled his 

punches,” i.e., failed to represent the defendant as vigorously as 

he might have done had there been no conflict.

Commonwealth v. King, 57 A.3d 607, 619 (Pa. 2012) (citations omitted).

Upon review, we find that the PCRA court’s findings are supported by 

the record and are free of legal error. Accordingly, we conclude that 

Appellant has not established that Anderson was willing to testify, as is 

required to prove ineffective assistance of counsel for failure to call a 

witness. Moreover, Appellant has failed to establish an actual conflict of 

interest that adversely affected Attorney Szanto’s representation of 

Appellant. Although a colleague at DAP had previously represented 

Anderson, the PCRA court believed that Attorney Szanto was solely 

concerned with the interests of Appellant. The PCRA court credited the 

testimony of Attorney Szanto that he pleaded with Anderson to testify on 

Appellant’s behalf despite the outstanding bench warrant on an unrelated 

case, subpoenaing him twice in an effort to compel him to do so. We will 
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not disturb the credibility determinations of the PCRA court. Thus, the PCRA 

court did not err in dismissing Appellant’s PCRA petition. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/8/20