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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

DAMON JOHNSON 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

No. 761 EDA 2023 

Appeal from the PCRA Order Entered October 28, 2022 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0010937-2016 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

DAMON JOHNSON 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

No. 769 EDA 2023 

Appeal from the PCRA Order Entered February 15, 2023 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0013500-2009 

BEFORE: DUBOW, J., KING, J., and LANE, J. 

MEMORANDUM BY KING, J.: FILED JULY 15, 2024

Appellant, Damon Johnson, appeals from the orders entered in the 

Philadelphia County Court of Common Pleas, entered on October 28, 2022 at 

docket No. 10937-2016, and on February 15, 2023 at docket No. 13500-2009, 

which dismissed his petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm. 
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A prior panel of this Court summarized the relevant facts and procedural 

history of this case as follows: 

On January 28, 2016 at approximately 9:00 pm, 

Police Officer Paul Sulock and his partner, Police 

Officer Jeffrey Stauffer, were traveling northbound on 

Frankford Avenue, approaching Cambria, when they 

heard two gunshots north of their location. Officer 

Sulock continued northbound on Frankford Avenue 

toward the gunshots. Upon his arrival, within 30 

seconds of hearing the gunshots, Officer Sulock 

observed a large crowd of people running in different 

directions while screaming. Officer Sulock was then 

flagged down by a female who told him “they are 

shooting out here,” to which he inquired as to the 

identity of the shooter. The female replied that she 

did not know and that she had only heard the shots. 

Within two minutes after speaking with the female, 

Officer Sulock drove eastbound on the 1900 block of 

Stella Street where he observed a light blue 2001 

Grand Marquis traveling at a high rate of speed. The 

car was leaving Frankford Avenue, the area of the 

shooting, and heading westbound on Stella Street. 

The 1900 block of Stella Street is approximately one 

block away from the scene of the shooting at 2900 

Frankford Avenue. While Officer Sulock was driving 

eastbound, [Appellant] was driving westbound. 

However, Officer Sulock was able to record the license 

plate number and observed [Appellant] driving the 

car. Officer Sulock immediately made a U-turn and 

followed [Appellant]’s vehicle. After [Appellant] 

noticed he was being followed, he abruptly parked in 

front of 1945 or 1947 Stella Street, in a handicap 

parking space, on the north side of the street. Once 

parked, [Appellant] immediately left the vehicle, ran, 

and attempted to enter 1947 Stella Street. Officer 

Sulock stepped out of his vehicle to investigate 

[Appellant]’s behavior. 

As Officer Sulock approached [Appellant], [Appellant] 

bladed his body away from Officer Sulock, turning the 

left side of his body, while keeping his left hand in his 
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waistband area. Officer Sulock asked [Appellant] 

what he was doing and requested to see [his] hands. 

[Appellant] responded by repeatedly claiming, “I live 

here.” However, Officer Sulock knew [Appellant]’s 

claim to be false as Officer Sulock was familiar with 

the area and knew the actual occupant of this 

residence to be an elderly Caucasian man. Further, 

Officer Sulock had never seen [Appellant] in the area 

of the home. During the conversation, [Appellant] 

stepped over a handicap ramp at 1947 Stella Street 

and continued to inch his way eastbound. Officer 

Sulock asked, again, to see [Appellant]’s hands and 

[he] complied. Officer Sulock then placed [Appellant], 

with his hands up, against a wall. 

After [Appellant] was against the wall, Officer Sulock 

proceeded to ask him for the location of the keys to 

the vehicle and inquired further as to his behavior. 

[Appellant] responded to the questions by stating, “I 

was never in no vehicle. I don’t know what you’re 

talking about.” Officer Sulock noticed that [Appellant] 

was extremely nervous and smelled of gunshot 

powder. Officer Sulock then placed [Appellant] in the 

back of his police car for further investigation and 

retrieved the registration to the vehicle, which was 

hanging out of [Appellant]’s hoodie[’s] pocket. While 

[Appellant] was in the police car, Officer Sulock 

walked to [Appellant]’s vehicle and noticed the vehicle 

was open. Officer Sulock began looking around the 

car with his flashlight. Officer Sulock found car keys 

on the driver’s side floorboard and a spent shell casing 

on the floorboard in the back, behind the driver’s seat. 

As Officer Sulock was looking around inside of the 

vehicle, he heard glass shatter. Officer Sulock looked 

toward his police car and observed his partner place 

both of his hands up in front of his face and both of 

[Appellant]’s feet leaping out of the back of the police 

car. After exiting the vehicle, [Appellant] began 

fleeing on foot, eastbound on Stella Street, then 

northbound on Braddock, and then westbound on 

Toronto. Officer Sulock placed a call over police radio 

to other officers in the area and immediately gave 

chase on foot. Officer Sulock was able to get 
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[Appellant] on the ground, while [Appellant] was 

heading westbound on Toronto. Officer Sulock 

required the assistance of five or six other officers in 

order to handcuff [Appellant]’s hands behind his back 

and control him due to [his] resistance. 

After [Appellant] was under control, Officer Sulock 

sprinted back to [Appellant]’s vehicle and observed 

other officers around the car and noted the car doors 

were open and the trunk of the car was open. Officer 

Sulock then observed two handguns, a gold .45 

caliber firearm and a black High Point .9 mm handgun, 

in the trunk of the vehicle. After observing the two 

firearms, Officer Sulock contacted East Detectives and 

[Appellant] was arrested and transported to East 

Detectives while [Appellant]’s vehicle was held at the 

scene. At a later date, it was discovered that 

[Appellant] was not licensed to carry or possess a 

firearm. 

Also, on January 28, 2016, at around 9:00 pm, 

Detective Dennis Dusak was involved in an 

investigation of shots fired at 2957 Frankford Avenue. 

The scene was located near 2900 Frankford Avenue 

and Orleans Street. During his investigation, he 

observed a bullet hole in the front window of a 

residence at 2957 Frankford Avenue and spoke with 

the occupants of the residence, a mother and her 10-

year-old child. Detective Dusak entered the residence 

and saw the bullet hole from inside the residence and 

noted there was also a bullet hole on the wall and on 

the other side of a kitchen cabinet. Detective Dusak 

also discovered a bullet projectile inside of the kitchen 

cabinet and submitted it to the Firearms Identification 

Unit. On a later date, Detective Dusak submitted two 

spent casings, discovered in front of 2033 East 

Orleans Street, on the highway, for a ballistic 

comparison with the bullet projectile he found at 2957 

Frankford Avenue. The two locations where the 

casings and the bullet projectile were found were 

approximately one block away from each other. The 

casings were later identified as casings from a .45 and 

a .9 mm firearm. 
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Once [Appellant] was arrested, Detective Randall 

Farward recovered: two .45 caliber fired cartridge 

casings (FCCs) at 2033 East Orleans Street, two 

firearms from [Appellant]’s vehicle on Stella Street, a 

High Point .9 mm and a Model Star .45 caliber, one .9 

mm shell casing from the rear driver's seat of 

[Appellant]’s vehicle, [Appellant]’s DNA, and [his] 

clothing to submit to the chemical laboratory to have 

ballistic activity testing performed. During testing of 

[Appellant]’s clothing, gunshot residue was 

discovered on the front, right side of [his] hooded 

sweatshirt, left sleeve and cuff, and inside of the 

hooded sweatshirt’s pocket. 

The firearms recovered from [Appellant]’s vehicle 

were submitted for DNA testing. The results were 

inconclusive. However, the testing revealed that the 

.45 caliber firearm contained DNA from two 

individuals, at least one of wh[om] was a male. Police 

Officer Gregory Walsh, a firearms examiner, test fired 

both firearms found in [Appellant]’s vehicle and found 

both to be operable. Officer Walsh also tested the 

three FCCs and projectile recovered. Officer Walsh 

concluded that the .45 caliber FCCs recovered from 

2033 East Orleans Street, the shooting scene, were 

fired from the .45 caliber firearm recovered from 

[Appellant]’s trunk and the .9 mm FCC found in 

[Appellant]’s vehicle was fired from the .9 Trim 

firearm found in [Appellant]’s trunk. 

[Appellant] testified at trial that he did not have a gun 

in his possession and that he did not know how the 

firearms got inside the trunk of his vehicle on January 

28, 2016. He further testified that he had no idea how 

the gunpowder residue had gotten on his hooded 

sweatshirt the evening the incident occurred. 

[Appellant] testified that he believed he was arrested 

around 8:50 pm, shortly after leaving his house for 

his night classes. [Appellant] also testified that he 

normally attended night classes from 4 pm until 10 

pm on a daily basis. 

[Appellant] testified that he owned four vehicles, 

which he would lend to his friends and family, and that 
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on the evening of January 28, 2016, he had woken up 

late for school. [Appellant] testified to the [c]ourt 

that[,] on that date[,] he hopped into the vehicle 

outside of his house since it was already started. 

Then, he corrected himself and stated that he went 

outside and put the keys in the ignition of the vehicle 

since it had an automatic starter.... He then 

proceeded to drive down to the intersection of 

Emerald and Stella and noticed police officers at the 

intersection. [Appellant] continued driving onto the 

1900 block of Stella Street to pick up his model for 

school. [Appellant] claimed that his model was Mr. 

John, a man who lives at a house with a handicap 

parking space in front of it. [Appellant] then parked 

in the handicap space because it was already dug out 

after it had snowed. 

[Appellant] claimed that the police officers were still 

at the intersection and watched him as he exited the 

vehicle and proceeded to 1947 Stella Street. 

[Appellant] knocked on the door to see if Mr. John 

wanted to come to [Appellant]’s school to model or if 

he wanted to reschedule. As [Appellant] was walking 

down the handicap ramp from Mr. John’s house, he 

noticed the police officers without headlights on and 

without any lights. As [Appellant] walked down the 

ramp, he saw the two police officers with their guns 

pointed at him and he put his hands in the air. 

[Appellant] then claimed that the police officers 

handcuffed him and told him he was handcuffed for 

an investigation. The police officers had [Appellant] 

sit in the snow for a second and when [Appellant] 

stood back up, his pants fell down to his ankles. 

[Appellant] asked if one of the police officers would 

help him pull his pants back up but the officer refused. 

[Appellant] testified that he was placed in the back of 

the police car with his pants still down at his ankles. 

He explained that since he was handcuffed and his 

pants were down, he had to enter the vehicle by 

leaning back and jumping backwards in the seat. He 

then claimed that once the officer slammed the 

door[,] the window shattered. [Appellant] explained 

that he didn’t drive the vehicle in question often, as it 
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was usually loaned to friends and family. He stated 

that he only drove it on the day of the incident 

because of the snow. He stated that the car was 

already parked at his house when he left for school, 

but then he stated that it was dropped off to him by 

one of his brothers. [Appellant] claimed that he did 

not know where the key to the vehicle was, but was 

able to get a spare key from his house, even though 

he did not drive the car often. [The trial] [c]ourt found 

[Appellant]’s testimony to be entirely incredible due 

to the contradictory and illogical nature of [his] 

testimony. 

(Trial Court Opinion, 6/6/18, at 1-7). 

[Procedurally, on January 29, 2016, t]he Commonwealth 

charged Appellant with resisting arrest at [docket No. 3364-

2016, and charged him with firearms violations and 

recklessly endangering another person (REAP) at docket No. 

3376-2016. After obtaining evidence that shell casings 

which were tied to the firearm from Appellant’s car were 

found in a nearby house, on October 11, 2016, the 

Commonwealth charged Appellant at docket No. 10937-

2016 with aggravated assault, possession of firearm 

prohibited, firearms not to be carried without a license, 

discharging a firearm into an occupied structure, and 

criminal mischief. The trial court granted the 

Commonwealth’s motion to withdraw charges from docket 

No. 3376-2016, all of which had been included at docket No. 

10937-2016].2 Appellant filed a motion to suppress the 

seized physical evidence, which the trial court denied 

following a hearing on April 11, 2017. Appellant’s non-jury 

trial was held on May 24, 2017, where he was convicted of 

[resisting arrest, carrying a firearm without a license, 

carrying a firearm on the streets of Philadelphia, persons not 

to possess firearms, simple assault, REAP, and criminal 

mischief]. On August 11, 2017, the trial court sentenced 

Appellant to 5-10 years’ incarceration for person not to 

possess a firearm, a concurrent 1-2 years’ incarceration for 

resisting arrest, and a consecutive term of 1-2 years’ 

incarceration for carrying a firearm without a license. The 

court imposed 4 years’ probation consecutive to Appellant’s 

incarceration for carrying a firearm on the streets of 

Philadelphia, and concurrent terms of probation of 2 years’ 
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each for simple assault and REAP. Appellant filed a timely 

post-sentence motion, which the court denied on October 4, 

2017. 

2 At [docket No.] 13500-2009, the trial court 

determined that Appellant had violated his probation 

due to his new convictions at [docket No.] 3364-2016 

and [docket No.] 10937-2016, and imposed a term of 

6-12 months’ incarceration. ... 

Commonwealth v. Johnson, No. 3007 EDA 2017, 2019 WL 3992467, 

unpublished memorandum at *1-4 (Pa.Super. filed Aug. 23, 2019), appeal 

denied, 657 Pa. 477, 226 A.3d 93 (2020). On August 23, 2019, this Court 

affirmed Appellant’s judgment of sentence and on December 11, 2019, our 

Supreme Court denied allowance of appeal. See id.

 Appellant filed a timely pro se PCRA petition at each underlying docket 

on February 14, 2021. The court appointed counsel, who filed an amended 

PCRA petition on June 13, 2021. The PCRA court conducted evidentiary 

hearings on December 13, 2021, January 3, 2022, January 11, 2022, March 

29, 2022, August 18, 2022, and September 20, 2022, and entered an order 

dismissing the petition at docket No. 3364-2016 and docket No. 10937-2016 

on October 28, 2022.1 On January 13, 2023, the PCRA court issued notice of 

its intent to dismiss the PCRA petition at docket No. 13500-2009, and on 

February 15, 2023, the PCRA court dismissed the petition at that docket. 

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1

 On November 27, 2022, Appellant filed a timely notice of appeal at docket 

No. 3364-2016 (related to Appellant’s resisting arrest conviction and 

sentence), which is pending in this Court at No. 2963 EDA 2022. 
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Appellant filed pro se notices of appeal on March 9, 2023 at docket Nos. 

13500-2009 and 10937-2016.2 The trial court did not order a Pa.R.A.P. 

1925(b) concise statement at either of these underlying dockets.3

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2

 Although Appellant’s appeal from docket No. 10937-2016 appears to be 

untimely on its face, we note that there are no entries on the trial court docket 

indicating service of the October 28, 2022 PCRA dismissal order on Appellant. 

See Pa.R.Crim.P. 114(C)(2)(c) (docket entries “shall contain” the “date of 

service of the order”); Pa.R.Crim.P. 907(4) (stating: “When the [PCRA] 

petition is dismissed without a hearing, the judge promptly shall issue an order 

to that effect and shall advise the defendant by certified mail, return receipt 

requested, of the right to appeal from the final order disposing of the petition 

and of the time limits within which the appeal must be filed. The order shall 

be filed and served as provided in Rule 114”). In Commonwealth v. 

Midgley, 289 A.3d 1111, 1117 (Pa.Super. 2023), this Court held that 

“[w]here the trial court docket in a criminal case does not indicate service on 

a party or the date of service, we will not quash the appeal or require further 

proceedings. Rather, we will treat the time in which to take an appeal as 

never having started to run and treat the appeal as timely.” Id. Under these 

circumstances, we decline to quash Appellant’s appeal at docket No. 10937-

2016 and will treat his notice of appeal as timely filed. See id.

We further note that Appellant also filed a duplicative appeal on March 9, 2023 

at docket No. 3364-2016, docketed in this Court at 766 EDA 2023. This Court 

later quashed the appeal at 766 EDA 2023. As discussed earlier, Appellant’s 

timely appeal from docket No. 3364-2016 is pending in this Court at docket 

No. 2963 EDA 2022. Also on March 9, 2023, Appellant filed an appeal at 

docket No. 3376-2016, docketed in this Court at 764 EDA 2023. This Court 

later quashed the appeal at docket 764 EDA 2023. As discussed earlier, the 

charges at underlying docket No. 3376-2016 were ultimately nolle prossed. 

3

 We disagree with the Commonwealth’s suggestion that Appellant should 

have assumed he was supposed to file concise statements at these underlying 

dockets where the trial court ordered a concise statement at docket No. 3364-

2016. The court did not order Appellant to file a concise statement at docket 

Nos. 10937-2016 and 13500-2009, so Appellant was not obligated to do so. 
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Appellant raises four issues on appeal:4

1. Whether the PCRA court erred by dismissing the PCRA 

petition when clear and convincing evidence was presented 

to establish that trial counsel was ineffective for failing to 

present impeachment evidence, file appropriate motions to 

dismiss charges and suppress evidence, and protect 

[A]ppellant’s Fourth and Sixth Amendment rights, as well as 

his due process rights. 

2. Whether the PCRA court erred by dismissing the PCRA 

petition when clear and convincing evidence was presented 

to establish that appellate counsel was ineffective for failing 

to preserve all appropriate issues for appeal. 

3. Whether the PCRA court erred by dismissing [A]ppellant’s 

PCRA petition when clear and convincing evidence was 

presented to establish violations of [A]ppellant’s 

constitutional rights at trial under the United States and 

Pennsylvania Constitutions. Appellant’s Fourth Amendment 

rights were violated by an unreasonable search and seizure. 

Appellant’s constitutional right to due process was violated 

by prosecutorial misconduct based on the Commonwealth’s 

presentation of perjured testimony, as well as the 

intentional manipulation of his speedy trial rights through 

the subsequent filing of duplicative charges. 

4. Whether the PCRA court erred by dismissing [A]ppellant’s 

PCRA petition when clear and convincing evidence was 

presented to establish that [A]ppellant was convicted in a 

proceeding by a tribunal without proper jurisdiction, as the 

Commonwealth failed to properly establish the jurisdiction 

of the trial court through the filing and service of proper bills 

of information. 

(Appellant’s Brief at 9). 

 “Our standard of review of the denial of a PCRA petition is limited to 

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4

 As Appellant raises the same issues presented in both above-captioned 

cases, we address these appeals together. 
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examining whether the evidence of record supports the court’s determination 

and whether its decision is free of legal error.” Commonwealth v. Beatty, 

207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 482, 218 

A.3d 850 (2019). This Court grants great deference to the factual findings of 

the PCRA court if the record contains any support for those findings. 

Commonwealth v. Howard, 249 A.3d 1229 (Pa.Super. 2021). “[W]e review 

the court’s legal conclusions de novo.” Commonwealth v. Prater, 256 A.3d 

1274, 1282 (Pa.Super. 2021). 

In Appellant’s first issue on appeal, Appellant raises several claims of 

trial counsel’s ineffectiveness. Initially, Appellant claims that trial counsel was 

ineffective for failing to introduce impeachment evidence when cross 

examining Officer Sulock during trial. Specifically, Appellant argues that 

Officer Sulock testified at the preliminary hearing that he was on Frankford 

Avenue when he saw Appellant traveling at a high rate of speed and turning 

onto Stella Street. At the second preliminary hearing, the officer described 

Appellant as travelling at a normal rate of speed. Then at trial, Officer Sulock 

testified that while he was driving on Stella Street, Officer Sulock saw 

Appellant and made a u-turn to follow him. Appellant insists that if counsel 

had impeached the officer with these inconsistent statements, together with 

photographs showing that Stella Street is a narrow one-way street, Officer 

Sulock’s credibility would have been called into question. Appellant claims 

that trial counsel has no reasonable basis for depriving him of his right to 
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meaningfully confront this witness. Appellant asserts that he was prejudiced 

by counsel’s decision because if the trier of fact had been aware of the 

contradictory nature of the arresting officer’s prior testimony, it would have 

undermined the officer’s credibility and given rise to reasonable doubt. 

Appellant concludes trial counsel was ineffective on this basis. We disagree. 

“Counsel is presumed to have rendered effective assistance.” 

Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal 

denied, 663 Pa. 418, 242 A.3d 908 (2020). 

[T]o establish a claim of ineffective assistance of counsel, a 

defendant must show, by a preponderance of the evidence, 

ineffective 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. The burden is on the defendant to 

prove all three of the following prongs: (1) the underlying 

claim is of arguable merit; (2) that counsel had no 

reasonable strategic basis for his or her action or inaction; 

and (3) but for the errors and omissions of counsel, there is 

a reasonable probability that the outcome of the 

proceedings would have been different. 

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019), 

appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and 

quotation marks omitted). 

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth 

v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175, 

179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524, 
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645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing 

to pursue a baseless or meritless claim.” Commonwealth v. Poplawski, 

852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth v. Geathers, 

847 A.2d 730, 733 (Pa.Super. 2004)). 

“Once this threshold is met we apply the ‘reasonable basis’ test to 

determine whether counsel’s chosen course was designed to effectuate his 

client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012 

(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95). 

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. 

Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting 

Sandusky, supra at 1043-44). 

“To show prejudice, the petitioner must demonstrate that there is a 

reasonable probability that, but for counsel’s allegedly unprofessional conduct, 

the result of the proceedings would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” 

Commonwealth v. W. Johnson, 635 Pa. 665, 710, 139 A.3d 1257, 1284 

(2016) (quoting Commonwealth v. Baumhammers, 625 Pa. 354, 92 A.3d 

708, 725 (2014)). 
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Instantly, the record reflects that trial counsel conducted a lengthy 

cross-examination of Officer Sulock, during which he attempted to impeach 

Officer Sulock’s credibility by highlighting the inconsistencies between Officer 

Sulock’s testimony at trial and his testimony at the preliminary hearing. For 

example, counsel highlighted that Officer Sulock testified at the preliminary 

hearing that individuals were fighting before the shooting, but in his trial 

testimony the officer stated that they were just shouting. (N.T. Trial, 5/24/17, 

at 44). Additionally, counsel brought to light that Officer Sulock testified at 

the preliminary hearing that the witness told him “males” where shooting, 

whereas at trial he testified that the witness said “people” were shooting. (Id.

at 46-47). Trial counsel questioned Officer Sulock about which street he was 

driving on when the officer first saw Appellant’s car, but counsel did not 

highlight any inconsistencies with the officer’s preliminary hearing testimony 

on that fact. (Id. at 28-51). 

On this record, we cannot say that Appellant suffered prejudice as a 

result of trial counsel’s failure to impeach Officer Sulock’s credibility on the 

grounds alleged, where counsel already pointed out other inconsistencies in 

the officer’s testimony. Specifically, Appellant has not shown that there is a 

reasonable probability that if trial counsel had questioned Officer Sulock 

concerning inconsistencies in his description of which street he was on when 

he first saw Appellant that the trial court, as finder of fact, would have found 

Officer Sulock incredible and instead believed Appellant’s version of events. 
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See W. Johnson, supra. Therefore, as Appellant failed to establish 

prejudice, his first ineffective assistance claim fails. 

In his second claim of ineffective assistance of counsel, Appellant argues 

that trial counsel was ineffective for failing to file a Rule 600 motion to dismiss. 

Appellant asserts that a Rule 600 claim would merit relief because he was tried 

481 days after his arrest, and the Commonwealth cannot establish that it 

exercised due diligence during the pretrial period. Appellant argues that the 

Commonwealth knowingly filed duplicative charges, and then nolle prossed

the initial charges, in order to make it appear that Appellant’s speedy trial 

right had not been violated. Appellant insists that counsel’s failure to file a 

motion to dismiss on this ground had no reasonable basis because no 

competent lawyer would fail to pursue a motion under such circumstances. 

Therefore, Appellant contends that he is entitled to relief. We disagree. 

A petitioner bears the burden of demonstrating that there was arguable 

merit to the proposed motion, which, in the case of an allegation that counsel 

should have filed a Rule 600 motion, includes the burden of showing that the 

Commonwealth failed to exercise due diligence. Commonwealth v. 

Wiggins, 248 A.3d 1285, 1289 (Pa.Super. 2021), appeal denied, ___ Pa. 

____, 263 A.3d 546 (2021). “Opining, without evidence, that it is possible 

that the Commonwealth failed to do so does not satisfy this burden.” Id. at 

1290. 

Instantly, Appellant has not meaningfully developed this claim of 
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ineffectiveness such that this Court can evaluate whether it may have merited 

relief if counsel had raised the issue before the trial court. Rather than 

delineate which periods of delay should have been attributed to the 

Commonwealth, Appellant simply contends that the entire pretrial period must 

be attributed to the Commonwealth, and the Commonwealth cannot claim that 

they were due diligent during this entire period. Aside from a boilerplate 

assertion that the Commonwealth cannot establish that it exercised due 

diligence because duplicative charges were filed and then nolle prossed, 

Appellant offers no assessment of the Commonwealth’s due diligence during 

any specific pretrial period. Appellant offers nothing to support his accusation 

that the prosecutor knowingly filed the duplicative charges with the intention 

of manipulating the computation of pretrial time, and his baseless accusations 

are insufficient to satisfy his burden under the PCRA. Accordingly, Appellant 

has not established that he is entitled to relief.5 

____________________________________________ 

5

 Moreover, even if Appellant had properly developed this claim on appeal, he 

failed to ensure that the certified record contained the transcript of the PCRA 

hearing during which the PCRA court set forth its reasoning and decision 

concerning the Rule 600 claim. “This Court cannot meaningfully review claims 

raised on appeal unless we are provided with a full and complete certified 

record.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006), 

appeal denied, 591 Pa. 663, 916 A.2d 632 (2007) (citation omitted). 

Furthermore, “[o]ur law is unequivocal that the responsibility rests upon the 

appellant to ensure that the record certified on appeal is complete in the sense 

that it contains all of the materials necessary for the reviewing court to 

perform its duty.” Id. Accordingly, Appellant has also waived this claim for 

failing to ensure that the record contained a transcript of the hearing where 

the court set forth its reasoning and decision. See Commonwealth v. 

(Footnote Continued Next Page) 
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In his third claim of ineffective assistance of counsel, Appellant contends 

that trial counsel was ineffective for failing to pursue a suppression motion 

based on alleged false statements in the affidavit of probable cause. Appellant 

asserts, without specificity, that the information set forth by the affiant 

Detective Dusack was never corroborated and the information provided by 

Officer Sulock was false and misleading. Appellant argues that Officer Sulock’s 

contradictory statements between his preliminary hearing and trial testimony 

proved that there were false statements in the affidavit of probable cause and 

established grounds to invalidate the arrest warrant. Therefore, he claims 

trial counsel was ineffective for failing to insist upon a Franks6 hearing to 

challenge the affidavit of probable cause, and there was no reasonable basis 

for counsel failing to do so. We disagree that relief is due. 

Counsel will not be found ineffective for failing to file a motion to 

suppress if the grounds asserted for that motion lack merit. Commonwealth 

v. Watley, 153 A.3d 1034, 1044 (Pa.Super. 2016), appeal denied, 641 Pa. 

750, 169 A.3d 574 (2017). “The defendant must establish that there was no 

reasonable basis for not pursuing the suppression claim and that if the 

evidence had been suppressed, there is a reasonable probability the verdict 

would have been more favorable.” Id. (citation omitted). 

____________________________________________ 

Gonzalez, 109 A.3d 711, 725 (Pa.Super. 2015), appeal denied, 633 Pa. 763, 

125 A.3d 1198 (2015). 

6 Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). 
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This Court has explained: 

Under the federal and state constitutional prohibitions of 

unreasonable searches and seizures, both the United 

States Supreme Court and this Court have consistently held 

that, subject to certain exceptions, a search is 

constitutionally invalid unless it is conducted pursuant to a 

warrant issued by a neutral and detached magistrate and 

supported by probable cause. Probable cause exists where, 

based upon a totality of the circumstances set forth in the 

affidavit of probable cause, including the reliability and 

veracity of hearsay statements included therein, there is a 

fair probability that...evidence of a crime will be found in a 

particular place. In reviewing an issuing authority’s 

decision to issue a warrant, a suppression court must affirm 

unless the issuing authority had no substantial basis for its 

decision. 

Commonwealth v. Fletcher, 307 A.3d 742, 746 (Pa.Super. 2023), appeal 

denied, ___ Pa. ____, ___ A.3d ____ (2024) (quoting Commonwealth v. 

Lyons, 622 Pa. 91, 110, 79 A.3d 1053, 1063-1064 (2013), cert. denied, 572 

U.S. 1048, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014)). 

[T]he question of whether probable cause exists for the 

issuance of a search warrant must be answered according 

to the totality of the circumstances test articulated in 

Commonwealth v. Gray, [509 Pa. 476, 503 A.2d 921 

(1985)], and its Pennsylvania progeny, which incorporates 

the reasoning of the United States Supreme Court in 

Illinois v. Gates, [462 U.S. 213, 103 S.Ct. 2317, 76 

L.Ed.2d 527 (1983)]. The task of the magistrate acting as 

the issuing authority is to make a practical, common sense 

assessment of whether, given all the circumstances set forth 

in the affidavit, a fair probability exists that contraband or 

evidence of a crime will be found in a particular place. A 

search warrant is defective if the issuing authority has not 

been supplied with the necessary information. The 

chronology established by the affidavit of probable cause 

must be evaluated according to a common sense 

determination. 
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Id. (quoting Commonwealth v. Harlan, 208 A.3d 497, 505 (Pa.Super. 

2019)). 

 With respect to a defendant’s entitlement to a Franks hearing: 

[W]here a defendant makes a substantial preliminary 

showing that a false statement was knowingly and 

deliberately, or with reckless disregard for the truth, 

included by an affiant in his application for a search warrant 

and where the alleged false statement was necessary to a 

finding of probable cause, the Fourth Amendment requires 

that a hearing be held at defendant’s request so that he 

might challenge the veracity and integrity of the warrant. 

Id. at 747 (quoting Commonwealth v. Iannaccio, 505 Pa. 414, 430 n.4, 

480 A.2d 966, 974 n.4 (1984)). In Franks, the United States Supreme Court 

held that, to mandate an evidentiary hearing “[t]here must be allegations of 

deliberate falsehood or of reckless disregard for the truth, and those 

allegations must be accompanied by an offer of proof. They should point out 

specifically the portion of the warrant affidavit that is claimed to be false; and 

they should be accompanied by a statement of supporting reasons.” Franks, 

supra at 171, 98 S.Ct. at 2684. 

Instantly, Appellant has not specified which specific portions of the 

affidavit of probable cause were allegedly false or misleading. As such, he has 

not met his burden of establishing entitlement to a Franks hearing. See id. 

Furthermore, to the extent that Appellant is referring to Officer Sulock’s 

varying account of which road he was driving on when he encountered 

Appellant’s vehicle, Appellant has provided no evidence that any such 

misstatement was made knowingly and deliberately, or with reckless 
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disregard for the truth. See Fletcher, supra. Thus, Appellant cannot show 

that counsel was ineffective because he has not established that his underlying 

claim would merit relief. Accordingly, Appellant’s first issue raising claims of 

trial counsel’s ineffectiveness merits no relief. 

In his second issue on appeal, Appellant asserts a layered claim of 

ineffective assistance of counsel, arguing that appellate counsel was 

ineffective for failing to raise trial counsel’s ineffectiveness. Rather than 

setting forth specific grounds of appellate counsel’s ineffectiveness, however, 

Appellant broadly asserts that appellate counsel was ineffective based on 

“counsel’s failure to preserve the multiple claims arising from the various 

constitutional violations at trial.” (Appellant’s Brief at 23). Appellant claims 

that the deficiencies in appellate counsel’s brief on direct appeal equates to 

per se ineffective representation, and therefore he is not required to satisfy 

the traditional three prong analysis for an ineffectiveness claim. Alternatively, 

Appellant argues that even if he is required to prove the traditional three prong 

test, his claim has merit because appellate counsel’s failure to preserve all 

claims deprived Appellant of his right to appeal, counsel’s failure to perfect 

the appeal was de facto unreasonable, and he suffered prejudice because 

counsel’s inadequate brief caused a complete default of the direct appeal. (Id.

at 24-25). Appellant concludes appellate counsel was ineffective, and this 

Court must grant relief. We disagree. 

This Court has explained per se ineffective assistance of counsel as 
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follows: In those “extreme circumstances, where counsel has effectively 

abandoned his or her client and cannot possibly be acting in the client’s best 

interests, our Supreme Court has held that the risk should fall on counsel, and 

not his client.” Commonwealth v. Grosella, 902 A.2d 1290, 1293 

(Pa.Super. 2006). Conversely, “[w]here a petitioner was not entirely denied 

his right to a direct appeal and only some of the issues the petitioner wished 

to pursue were waived, the reinstatement of the petitioner’s direct appeal 

rights is not a proper remedy.” Id. at 1293-94 (collecting cases distinguishing 

between those involving failures that completely foreclosed appellate review 

with those that merely narrowed its ambit). See also Commonwealth v. 

Rosado, 637 Pa. 424, 435, 150 A.3d 425, 431 (2016) (distinguishing between 

deficient advocacy which waived all claims for purpose of appeal, which is 

ineffective per se, from failure to preserve some claims, which does not 

constitute ineffectiveness per se). In those cases where counsel did not 

effectively abandon the appellant, this Court has held that “the PCRA court 

should have considered [the a]ppellant’s ineffective assistance of appellate 

counsel claims under the auspices of the PCRA and applied the traditional 

three-prong ineffective assistance of counsel test.” Grosella, supra at 1294 

(internal footnote omitted). 

Further: 

[T]o demonstrate that a “layered” claim of appellate 

counsel’s ineffectiveness has arguable merit, the petitioner 

must develop all three prongs of the Pierce test as to the 

ineffectiveness of trial counsel. Stated differently, if the 
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petitioner fails to develop any of the three Pierce prongs 

regarding the underlying issue of trial counsel 

ineffectiveness, he or she will have failed to establish the 

arguable merit prong of the claim of appellate counsel’s 

ineffectiveness. Only when the petitioner has adequately 

pled and presented the ineffectiveness of trial counsel 

pursuant to the Pierce test will this Court proceed to review 

the layered claim to determine whether he or she has 

proven appellate counsel’s ineffectiveness. 

Commonwealth v. Brown, 582 Pa. 461, 474, 872 A.2d 1139, 1146 (2005) 

(citations and footnotes omitted). 

Instantly, appellate counsel did not completely abandon Appellant on 

appeal, as counsel preserved challenges to the sufficiency of the evidence and 

the suppression of evidence. See Johnson, supra.

7

 Thus, counsel’s 

performance was not ineffective per se. See Grosella, supra. See also 

Rosado, supra. Accordingly, Appellant was required to establish appellate 

counsel’s ineffectiveness under the traditional three prong test. See 

Grosella, supra. 

Although Appellant claims that appellate counsel erred in failing to 

“preserve the Fourth Amendment, due process, or speedy trial issues” (see 

Appellant’s Brief at 23), he does not establish how any of these claims would 

merit relief. See Smith, supra. Further, Appellant has not sufficiently pled 

____________________________________________ 

7 See id. (addressing challenges to sufficiency of evidence for firearm 

offenses, simple assault, and REAP; deeming one issue related to sufficiency 

of evidence for resisting arrest waived for failure to develop claim on appeal; 

addressing challenge to suppression of evidence). Notably, the sufficiency 

challenge waived on direct appeal relates to the resisting arrest underlying 

docket, which is not the subject of this appeal. 
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a layered claim of ineffectiveness to entitle him to relief. See Brown, supra. 

Therefore, Appellant’s second issue on appeal merits no relief. 

In his third issue on appeal, Appellant claims that his due process rights 

were violated when the Commonwealth introduced perjured testimony from 

Officer Sulock concerning the streets upon which Appellant and the officer 

were driving. Appellant insists that Officer Sulock’s testimony was materially 

false and that the Commonwealth had reason to question his integrity. 

Appellant further avers that the prosecutor’s manipulation of the Rule 600 run 

date constituted prosecutorial misconduct and violated Appellant’s due 

process rights. Although Appellant acknowledges that neither issue was raised 

on direct appeal, he argues that these claims involve important constitutional 

rights and suggests they are not subject to waiver. We disagree. 

Section 9544(b) of the PCRA states that “an issue is waived if the 

petitioner could have raised it but failed to do so before trial, at trial, during 

unitary review, on appeal or in a prior state postconviction proceeding.” 42 

Pa.C.S.A. § 9544(b). Indeed, “the very terms of the PCRA exclude waived 

issues from the class of cognizable PCRA claims. [See] 42 Pa.C.S.[A.] § 

9543(a)(3) (to be eligible for relief under PCRA, a petitioner must prove that 

the allegation of error has not been waived).” Commonwealth v. Bracey, 

568 Pa. 264, 274, 795 A.2d 935, 941 (2001). 

Instantly, Appellant did not raise either of the claims asserted in this 

appellate issue for review on direct appeal. Consequently, they are waived. 
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See 42 Pa.C.S.A. §§ 9544(b); 9543(a)(3); Bracey, supra. 

In his fourth and final issue, Appellant argues that the PCRA court erred 

when it dismissed his PCRA petition because the Commonwealth failed to 

properly establish the jurisdiction of the trial court. Specifically, Appellant 

claims that the indictment charging him at docket No. 10937-2016 was invalid 

because it lacked a required bill of information. Therefore, Appellant insists 

that he was entitled to relief pursuant to 42 Pa.C.S.A. § 9543(a)(2)(viii) 

because the trial court lacked proper jurisdiction. We disagree. 

Claims that a conviction or sentence resulted from a proceeding in the 

trial court without jurisdiction are cognizable under the PCRA. 42 Pa.C.S.A. § 

9543(a)(2)(viii). “The term ‘jurisdiction’ relates to the competency of an 

individual court or administrative body to determine controversies of the 

general class to which a particular case belongs.” Commonwealth v. 

McNeil, 665 A.2d 1247, 1251 (Pa.Super. 1995). “Subject matter jurisdiction 

in the trial court exists by virtue of presentation of prima facie evidence that 

a criminal act occurred within the territorial jurisdiction of the court.” Id. 

In Commonwealth v. Jones, 593 Pa. 295, 298, 929 A.2d 205, 206 

(2007), our Supreme Court held that a flaw in the bill of information did not 

deprive the trial court of subject matter jurisdiction. Rather, the Court 

addressed the purported flaw in the bill of information as implicating the 

appellant’s due process rights regarding whether the appellant was provided 

with notice of the charges against him. 
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Instantly, Appellant cites no law to support his claim that the alleged 

lack of a bill of information divested the trial court of subject matter 

jurisdiction. Notably, the cases on which Appellant relies have nothing to do 

with a bill of information. As Appellant’s claim here implicates due process 

rights, and not the trial court’s subject matter jurisdiction, Appellant’s claim is 

waived for failure to challenge the alleged lack of a bill of information on direct 

appeal. See id. See also 42 Pa.C.S.A. 9543. Accordingly, Appellant is not 

entitled to relief on any of his claims on appeal and we affirm. 

Orders affirmed. 

Date: 7/15/2024