J-S11006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT SIMMONS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 852 EDA 2022

Appeal from the PCRA Order Entered February 2, 2022

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

No(s): CP-51-CR-0006974-2016

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED JUNE 21, 2023

Appellant, Robert Simmons, appeals from the order entered on February 

2, 2022, which denied his petition filed under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The trial court ably summarized the underlying facts of this case:

The testimony at trial established that[, at approximately 

7:00 p.m. on March 27, 2016,] police were following a vehicle 

in response to a radio call [of a robbery in progress]. The 

two rear seat passengers, one of whom was Appellant, turned 

around and made [eye contact] with police. When the vehicle 

stopped, the two rear seat passengers exited the vehicle and 

fled, while the driver and front seat passenger remained in 

the car. 

The male exiting from the rear driver's side [was Appellant’s 

co-defendant, Shafeeq Ahmed (hereinafter “Co-Defendant 

Ahmed”). Co-Defendant Ahmed] was carrying a black 

handgun in his hand. Appellant, who had been sitting in the 

rear on the passenger side, was not initially observed to have 

a gun in his hand. The two men ran together for a distance, 

with police in pursuit, before splitting up. 
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[City of Philadelphia Police Officer Lewis Kerr] continued to 

chase [Co-Defendant Ahmed], the male with a gun.

[Although Officer Kerr was chasing Co-Defendant Ahmed, 

Officer Kerr watched Appellant run north on Mascher Street

and, from a distance of approximately 20 feet away, Officer 

Kerr saw Appellant pull a handgun from his waistband].

As Officer Kerr continued to chase [Co-Defendant Ahmed], 

Appellant and [Co-Defendant Ahmed] met back up. The two

men ran past a breezeway, as a police car with other officers 

came behind them. They stopped behind a brown car, where 

Appellant briefly dipped behind the car, then both men came 

back past the breezeway before attempting to climb a fence, 

at which time they were apprehended. 

A gun magazine and alleged marijuana were recovered from 

Appellant. The gun police had seen Appellant remove from 

his waistband was recovered from under the brown car 

behind which Appellant had dipped down, near to where 

Appellant and [Co-Defendant Ahmed] were apprehended. 

The gun in possession of [Co-Defendant Ahmed] was 

recovered in a breezeway near to where he and Appellant 

were apprehended. The magazine recovered from Appellant 

fit the gun found in the breezeway. 

Trial Court Opinion, 9/21/18, at 2-3 (citations omitted).

Following a bench trial, the trial court found Appellant guilty of persons 

not to possess firearms, firearms not to be carried without a license, and 

carrying firearms on the public streets of Philadelphia.1 On May 4, 2018, the 

trial court sentenced Appellant to serve an aggregate term of six to 14 years 

in prison for his convictions. N.T. Sentencing, 5/4/18, at 21-23. We affirmed 

Appellant’s judgment of sentence on April 13, 2020. Commonwealth v. 

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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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Simmons, 236 A.3d 1090 (Pa. Super. 2020) (non-precedential decision) at 

1-4.

On November 18, 2020, Appellant filed a timely, counseled PCRA 

petition. Within the petition, Appellant claimed that he recently became aware 

of exculpatory, after-discovered evidence, which entitles him to a new trial. 

Specifically, Appellant claimed, on November 18, 2020, his PCRA counsel 

(hereinafter “PCRA Counsel”) received a letter from Co-Defendant Ahmed, 

where Co-Defendant Ahmed admitted that he possessed both guns on the 

night in question. Appellant attached a written statement, purportedly from 

Co-Defendant Ahmed, which declared:

On March [27, 2016, I, Co-Defendant Ahmed], was set to 

meet with a guy by the name of George Exum to purchase 

some marijuana. I know how drug deals go bad so I brought 

a gun, a [.40] caliber highpoint. I called my friend[, 

Appellant,] to meet me just in case it goes wrong. When I 

met George Exum, I gave him the money for about 2 pounds. 

I noticed he was reaching for the firearm, myself and 

[Appellant] started to wrestle with him for the gun. He 

dropped the gun which was a 45 Remington if I’m not 

mistak[en]. I then picked it up and grabbed it, tucked it and 

told [Appellant] to grab the weed and as we were running the 

cops pulled up. There were two other guys that came along 

with [Appellant] that I had never met before. They also had 

pulled up to the scene to meet us and we ran to their car.

[Appellant] had started telling me that he couldn’t afford to 

go back to jail, he had recently [come] home and was trying 

to pursue a rap career and attend college. [At] this time I 

had two guns, one that belonged to me and the other that I 

had taken from George along with the marijuana that 

[Appellant] passed back to me. Even though I felt bad that 

I had gotten him in this situation, I asked him to take one of 

the guns however he refused. We got out of the car and 

began to run ahead of the cops, I asked him again to take 
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one of the guns but he refused. We stopped by a car as I 

went to remove one of the guns, I struggled to get the 

[second] one off my waist because everything was moving so 

fast. I [accidentally] dropped the clip to my [.40] caliber

highpoint, I told [Appellant] to pick it up and toss it some 

place so that the cops would not see. When I got sentenced 

for the [.40] caliber and realized that they were pinning 

George’s gun – the one that I had taken from him [– on 

Appellant,] I knew that something was wrong but I was afraid 

to speak up [feeling] like I could possibly get more time. I 

was also upset [that Appellant] wouldn’t take one of the guns 

from off of me.

Now I am home and [it’s] bothering me inside to hear that 

he got all that time for something he really had no role in. If 

[Appellant] had not been there the witness George Exum 

could have possibly shot me.

PCRA Petition, 11/18/20, at Attachment 1. 

The above statement was not sworn. Further, the page upon which the 

statement appears is not notarized; instead, a notarized seal appears on a 

separate page, which attests that Co-Defendant Ahmed “executed the 

foregoing instrument.” Id. at Attachment 2.

As the PCRA court explained:

The matter was listed for an evidentiary hearing on two 

occasions, but [Co-Defendant Ahmed] did not appear. When 

[Co-Defendant Ahmed] failed to appear at the second hearing 

on December 7, 2021, [PCRA Counsel] advised the [PCRA 

court] that [Co-Defendant Ahmed] would not be appearing, 

and [PCRA Counsel] had no expectation that he would ever 

appear. [PCRA Counsel] further advised the court that even 

if [Co-Defendant Ahmed] was compelled to appear, he would 

exercise his right to remain silent, which in light of 

[Appellant’s] proffer of his testimony (possession of the 

firearm), was a legitimate exercise of that right.

PCRA Court Opinion, 2/2/22, at 1 n.1 (some capitalization omitted).
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Since Co-Defendant Ahmed refused to appear for the evidentiary 

hearing, the PCRA court denied Appellant’s petition on February 2, 2022. 

Appellant filed a timely notice of appeal and, on appeal, the PCRA court 

appointed new counsel to represent Appellant. Appellant now raises two 

claims to this Court:

[1.] Did the [PCRA] court err and abuse its discretion by 

failing to assess the credibility of [Co-Defendant Ahmed’s] 

exculpatory affidavit before dismissing the PCRA petition?

[2.] Did PCRA [Counsel] render ineffective assistance by 

failing to subpoena [Co-Defendant Ahmed], an indispensable 

witness who submitted an exculpatory affidavit?

Appellant’s Brief at 5.

First, Appellant claims that the PCRA court erred when it dismissed his 

petition “without assessing the credibility of” Co-Defendant Ahmed’s notarized 

statement. Id. at 7.

“Under the applicable standard of review, we must determine whether 

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

error.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). “The PCRA 

court's credibility determinations, when supported by the record, are binding 

on this Court. However, this Court applies a de novo standard of review to 

the PCRA court's legal conclusions.” Id. (citations omitted).

To be eligible for relief under the PCRA, the petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from “one or more” of the seven, specifically enumerated 
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circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily 

enumerated circumstances is the “unavailability at the time of trial of 

exculpatory evidence that has subsequently become available and would have 

changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.A. 

§ 9543(a)(2)(vi).

To obtain relief based on after-discovered evidence, an appellant must 

show that the evidence:

(1) could not have been obtained prior to the conclusion of 

the trial by the exercise of reasonable diligence; (2) is not 

merely corroborative or cumulative; (3) will not be used 

solely to impeach the credibility of a witness; and (4) would 

likely result in a different verdict if a new trial were granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012), citing 

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). To determine 

whether the evidence is “of such nature and character” to compel a different 

verdict in a new trial, a court should consider “the integrity of the alleged 

after-discovered evidence, the motive of those offering the evidence, and the 

overall strength of the evidence supporting the conviction.” Commonwealth 

v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010).

In the case at bar, Appellant filed a PCRA petition, where he attached a 

statement that was purportedly written by Co-Defendant Ahmed. The 

statement declared that Co-Defendant Ahmed possessed both firearms that 

were recovered on the night in question – and that Appellant, at no point, 

possessed the firearms. In response, the PCRA court scheduled an evidentiary 

hearing on Appellant’s petition, so that the PCRA court could hear 
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Co-Defendant Ahmed’s testimony and judge his credibility. However, 

Co-Defendant Ahmed did not appear at the evidentiary hearing. See PCRA 

Court Opinion, 2/2/22, at 1 n.1.

Rather than immediately deny Appellant’s petition, the PCRA court

continued the hearing until December 7, 2021, to enable Appellant to secure 

Co-Defendant Ahmed’s presence. However, Co-Defendant Ahmed refused to 

appear for the December 7, 2021 hearing. Further, the PCRA court explained:

When [Co-Defendant Ahmed] failed to appear at the second 

hearing on December 7, 2021, [PCRA Counsel] advised the 

[PCRA court] that [Co-Defendant Ahmed] would not be 

appearing, and [PCRA Counsel] had no expectation that he 

would ever appear. [PCRA Counsel] further advised the court 

that even if [Co-Defendant Ahmed] was compelled to appear, 

he would exercise his right to remain silent, which in light of 

[Appellant’s] proffer of his testimony (possession of the 

firearm), was a legitimate exercise of that right.

PCRA Court Opinion, 2/2/22, at 1 n.1.

The success of Appellant’s petition was contingent upon Co-Defendant 

Ahmed’s testimony and, since Co-Defendant Ahmed did not appear for the 

evidentiary hearing on Appellant’s petition, the PCRA court properly denied 

Appellant’s petition. To be sure, since Co-Defendant Ahmed refused to testify 

during the evidentiary hearing, Appellant failed to satisfy his evidentiary 

burden of production in this case.2 C.f. Commonwealth v. Wells, 578 A.2d 

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2 Within Appellant’s brief, Appellant claims that his case is similar to 

Commonwealth v. D’Amato, 856 A.2d 806 (Pa. 2004) and 

Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999), where the 

Pennsylvania Supreme Court held that the respective PCRA courts erred when 

(Footnote Continued Next Page)
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27, 32 (Pa. Super. 1990) (“[w]henever an evidentiary hearing on a claim of 

ineffectiveness is granted, the burdens of production and persuasion remain 

on the defendant. If the defendant fails to sustain the offer of proof at the 

evidentiary hearing, the ineffectiveness claim must fail. A failure to sustain 

an allegation of ineffectiveness may arise from a failure to present evidence 

at the evidentiary hearing, or from a rejection of the evidence presented in 

support of the proffer as not credible”). Appellant was thus entitled to no 

relief.

Next, Appellant claims that PCRA Counsel was ineffective for failing to 

subpoena Co-Defendant Ahmed. We note that Appellant raises the 

ineffectiveness of PCRA Counsel for the first time on appeal. Nevertheless, as 

our Supreme Court has held: “a PCRA petitioner may, after a PCRA court 

denies relief, and after obtaining new counsel or acting pro se, raise claims of 

PCRA counsel's ineffectiveness at the first opportunity to do so, even if on 

appeal.” Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021). The 

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the courts dismissed PCRA petitions without holding an evidentiary hearing 

and without first “assess[ing] the credibility and significance of the recantation 

[evidence] in light of the evidence as a whole.” See D’Amato, 856 A.2d at 

825; see also Williams, 732 A.2d at 1180-1181 (holding: “we find that the 

PCRA court abused its discretion . . . in failing to make an independent 

credibility determination” of the recantation evidence before it dismissed the 

petition without holding an evidentiary hearing). 

Obviously, the facts and procedural posture of the case at bar are nothing like 

D’Amato and Williams because, in the case at bar, the PCRA court actually 

held an evidentiary hearing. Appellant simply failed to produce any evidence 

during the scheduled hearing.
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Bradley Court then explained the procedure for disposing of a newly-raised 

ineffectiveness claim:

In some instances, the record before the appellate court will 

be sufficient to allow for disposition of any newly-raised 

ineffectiveness claims. However, in other cases, the 

appellate court may need to remand to the PCRA court for 

further development of the record and for the PCRA court to 

consider such claims as an initial matter. Consistent with our 

prior case law, to advance a request for remand, a petition 

would be required to provide more than mere boilerplate 

assertions of PCRA counsel's ineffectiveness; however, where 

there are material facts at issue concerning claims 

challenging counsel's stewardship and relief is not plainly 

unavailable as a matter of law, the remand should be 

afforded.

. . . [A]n appellate court will not be tasked with developing 

the record or acting as a court of original jurisdiction. Rather, 

appellate courts will have the ability to grant or deny relief 

on straightforward claims, as well as the power to remand to 

the PCRA court for the development of the record.

Id. at 402 (quotation marks, citations, corrections, and footnote omitted).

In the case at bar, the PCRA court appointed new counsel to represent 

Appellant on appeal and this is Appellant’s first opportunity to contest the 

effectiveness of PCRA Counsel.3 Therefore, we may properly consider 

Appellant’s ineffective assistance of counsel claim.

Under the PCRA, a petitioner is entitled to relief if they are able to plead 

and prove, by a preponderance of the evidence, the “[i]neffective assistance 

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3 The PCRA court did not order Appellant to file a concise statement of errors 

complained of on appeal, pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b).
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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.A. § 9543(a)(2)(ii).

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

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d 

1276, 1279 (Pa. Super. 2010). To satisfy this burden, 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 

proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has 

explained:

A claim has arguable merit where the factual averments, if 

accurate, could establish cause 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.
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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). “A failure to satisfy any prong of the test 

for ineffectiveness will require rejection of the claim.” Id.

Appellant claims that PCRA Counsel was ineffective because counsel 

failed to subpoena Co-Defendant Ahmed to appear for the PCRA hearing. Our 

Supreme Court has explained:

When raising a claim of ineffectiveness for the failure to call 

a potential witness, a petitioner satisfies the performance and 

prejudice requirements of the [ineffectiveness] 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, 1108-1109 (Pa. 2012).

Here, Appellant’s ineffective assistance of counsel claim immediately 

fails because Appellant cannot plead or prove that Co-Defendant Ahmed “was 

willing to testify for [Appellant].” See id. 

As explained above, during the PCRA hearing, PCRA Counsel informed 

“the [PCRA court] that [Co-Defendant Ahmed] would not be appearing [for 

the hearing], and [PCRA Counsel] had no expectation that he would ever 

appear.” PCRA Court Opinion, 2/2/22, at 1 n.1. Further, PCRA Counsel 

informed the PCRA court that “even if [Co-Defendant Ahmed] was compelled 
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to appear, he would exercise his right to remain silent.” Id. The PCRA court 

credited PCRA Counsel’s representations and thus denied Appellant relief on 

his petition. PCRA Court Order, 2/2/22, at 1; see also Pa.R.P.C. 3.3(a)(1) 

(“[a] lawyer shall not knowingly . . . make a false statement of material fact 

or law to a tribunal or fail to correct a false statement of material fact or law 

previously made to the tribunal by the lawyer”).

In light of the above-quoted statements from PCRA Counsel, the PCRA 

court’s crediting of those statements, and the fact that Co-Defendant Ahmed 

failed to appear at both the originally-scheduled and continued PCRA 

evidentiary hearing, we conclude that “the record before [us is] sufficient to 

allow for [immediate] disposition of [Appellant’s] newly-raised ineffectiveness 

claim[].” See Bradley, 261 A.3d at 402. Further, we conclude that, since 

Appellant cannot plead or prove that Co-Defendant Ahmed “was willing to 

testify for [Appellant]” at the PCRA hearing, Appellant cannot succeed on his 

ineffective assistance of counsel claim. We thus affirm the PCRA court’s order.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2023
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