J-S74009-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK L. WILLIAMS,

Appellant No. 2728 EDA 2013

Appeal from the PCRA Order Entered September 17, 2013

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0005614-2009

BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 23, 2014

Appellant, Mark L. Williams, appeals pro se from the post-conviction 

court’s September 17, 2013 order denying his petition for relief filed 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 

After careful review, we are compelled to vacate the court’s order and 

remand for further proceedings.

In October of 2010, a jury convicted Appellant of first-degree murder 

and carrying a firearm without a license. Appellant’s convictions stemmed 

from the September 21, 2009 shooting death of Isaiah McLendon on N. 3rd

Street in Darby, Pennsylvania. On December 7, 2010, Appellant was 

sentenced to an aggregate term of life imprisonment without the possibility 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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of parole. He filed a timely notice of appeal and, after this Court affirmed his 

judgment of sentence on October 11, 2011, our Supreme Court denied 

Appellant’s petition for allowance of appeal. Commonwealth v. Williams, 

37 A.3d 1227 (Pa. Super. 2011) (unpublished memorandum), appeal 

denied, 42 A.3d 1060 (Pa. 2012). 

On September 24, 2012, Appellant filed a timely pro se PCRA petition 

raising various ineffective assistance of trial counsel claims. PCRA counsel 

was appointed, but rather than filing an amended petition on Appellant’s 

behalf, counsel filed a petition to withdraw and ‘no-merit’ letter pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Appellant filed 

a timely pro se “Objection and Response” to counsel’s petition to withdraw. 

On May 29, 2013, the PCRA court issued a Pa.R.Crim.P. 907 notice of its 

intent to dismiss. Appellant again filed a timely pro se response. 

Nevertheless, on September 17, 2013, the PCRA court issued an order 

dismissing Appellant’s PCRA petition and granting counsel’s petition to 

withdraw.

Appellant filed a timely pro se notice of appeal, as well as a timely 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. In 

his pro se brief to this Court, Appellant sets forth the following four issues 

(reproduced verbatim), each of which contain numerous sub-parts totaling 

18 different claims:
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I. Whether PCRA counsel provided ineffective assistance in failing 

to: a) provide any meaningful participation; b) properly certify 

the PCRA as required under section 9545(d)(1); c) meet the 

imposed requirements of Pa.R.Crim.P. 902 in regards to the 

contents of the petition; d) meet the imposed requirements of 

Pa.R.Crim.P. 904 and Turner/Finley; e) investigate and 

properly raise defendant’s claims of trial counsel’s 

ineffectiveness; f) develop Brady[1]claims; and g) develop 

after-discovered evidence claim?

II. Whether PCRA court committed reversible error of law, 

abused it’s discretion and denied the defendant his state and 

federal due process rights under the Pennsylvania and United 

States Constitution in: a) granting PCRA counsel leave to 

withdraw based upon a legally insufficient no-merit letter; b) 

conduct an independent review of the record and give it’s 

independent findings why defendant’s issues were without merit 

pursuant to Turner/Finley and their progenies; c) grant an 

evidentiary hearing on trial counsel ineffectiveness claims; and 

d) grant an evidentiary hearing on the after-discovered 

evidence?

III. Whether trial counsel provided ineffective assistance in 

failing to: a) interview/investigate two known eye witnesses; b) 

interview/investigate [Drug Enforcement Administration (DEA)] 

Agent Robert Belcher; c) object or raise on direct appeal the 

court denying compulsory process; d) object or raise on direct 

appeal the court stating there was “a real reason” why the crime 

occurred; e) object or raise on direct appeal the court stating 

that the defendant admitted to committing the crime?

IV. Whether the prosecutor committed misconducts, reversible 

error of law and denied the defendant his federal due process 

rights under the United States Constitution in failing to: a) 

disclose video surveillance footage of where the crime transpired 

and in failing to make the defense aware of that evidence; and in 

b) eliciting known false testimony and failing to correct known 

false testimony?

____________________________________________

1 Brady v. Maryland, 373 U.S. 83 (1963).
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Appellant’s Brief at 4.

First, “[t]his Court’s standard of review from the grant or denial of 

post-conviction relief is limited to examining whether the lower court’s 

determination is supported by the evidence of record and whether it is free 

of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) 

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). 

Where, as here, a petitioner claims that he received ineffective assistance of 

counsel, our Supreme Court has stated that:

[A] PCRA petitioner will be granted relief 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.” 

Generally, counsel’s performance is presumed to be 

constitutionally adequate, and counsel will only be deemed 

ineffective upon a sufficient showing by the petitioner. To obtain 

relief, a petitioner must demonstrate that counsel’s performance 

was deficient and that the deficiency prejudiced the petitioner. A 

petitioner establishes prejudice when he demonstrates “that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” ... [A] properly pled claim of ineffectiveness 

posits that: (1) the underlying legal issue has arguable merit; 

(2) counsel’s actions lacked an objective reasonable basis; and 

(3) actual prejudice befell the petitioner from counsel’s act or 

omission. 

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations 

omitted). 

In Appellant’s first issue, he essentially contends that PCRA counsel 

acted ineffectively by filing an inadequate petition to withdraw and no-merit 
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letter. After careful review, we are compelled to agree with Appellant that 

PCRA counsel failed to adequately examine, in his Turner/Finley no-merit 

letter, two of Appellant’s trial counsel ineffectiveness claims. We will discuss 

those two ineffectiveness claims first.

Appellant contends that trial counsel was ineffective for failing to 

object when the trial court denied Appellant “his right to compulsory 

process” by dismissing two potential defense witnesses. Appellant’s Brief at 

42. Those witnesses, James Shepard and Stephan Fenwick, both invoked 

their right to remain silent after claiming that their testifying at Appellant’s 

trial would incriminate them. The PCRA court described the proposed 

testimony of these defense witnesses as follows:

At trial, defense counsel expressed his intention to call two 

witnesses: James [Shepard] and Stephan Fenwick. [Shepard] 

was available to testify, but his attorney, Stephen Gilson, Esq., 

advised him not to do so. [Shepard] would have attacked the 

credibility of Jeffrey Mason, the jailhouse snitch [who testified 

that Appellant made inculpatory statements while incarcerated]. 

[Shepard] would have testified that he witnessed Mason 

reviewing paperwork in [Appellant’s] cell. This testimony would 

allegedly raise the inference that Mason became familiar with 

[Appellant’s] case by reading paperwork, not by hearing 

[Appellant] admit to the crime. Stephan Fenwick was to rebut a 

portion of Gregory Graham’s account of his whereabouts on the 

day and night of the shooting.[2] 

____________________________________________

2 Gregory Graham was also charged in the murder of McLendon, and entered 

a plea agreement pursuant to which he testified for the Commonwealth at 

Appellant’s trial. In Graham’s appeal from his judgment of sentence, we 

described his testimony at Appellant’s trial as follows:

(Footnote Continued Next Page)
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PCRA Court Opinion (PCO), 3/3/14, at 9-10 (unpaginated).

The trial court appointed Timothy Plasenti, Esq., to represent Shepard 

and Fenwick. On October 19, 2010, Attorney Plasenti informed the court 

that he consulted with both witnesses and advised each of them to invoke 

their right to remain silent. Attorney Plasenti was then asked by the court to 

explain how Shepard’s testimony would “tend to incriminate” him. N.T. 

Trial, 10/19/10, at 7. When Attorney Plasenti began to respond, the 

Commonwealth interjected, indicating that it was not appropriate for the 

court to ask such a question, which could “interfere with the attorney/client 

relationship.” Id. at 8. Attorney Plasenti then stated that he “would be 

more comfortable not answering[,]” but nevertheless indicated that 

Shepard’s testimony would be incriminating because “he has an open 

(Footnote Continued) _______________________

At [Appellant’s] trial, [Graham] testified that he drove 

[Appellant] to an alley behind [the scene of the crime]. 

[Appellant] exited the car and told [Graham] to meet him at a 

Save-A-Lot store. While parked at the nearby Save-A lot store, 

[Graham] heard gunshots in the distance. Shortly after the shots 

rang out, [Appellant] appeared at the Save-A-Lot, got into 

[Graham’s] car and said, “I shot that n[*****] and wonder if 

he’s dead.” [Graham] then drove [Appellant] to Philadelphia. 

Later, [Appellant] telephoned [Graham] and solicited his 

assistance in disposing of the murder weapon. A week or so 

later, [Graham] retrieved the gun from its hiding place and 

placed it in his van, which was towed to Virginia and loaded on a 

Florida-bound train. After arriving in Florida, [Graham] took the 

gun apart and “spread” it across various locations in 

Jacksonville, Florida.

Commonwealth v. Graham, No. 738 EDA 2011, unpublished 

memorandum at 2 (Pa. Super. filed February 8, 2012).
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criminal matter.” Id. Without requesting any further elaboration from 

Attorney Plasenti, the court dismissed Shepard as a witness. Id. at 9. 

In regard to Fenwick, Attorney Plasenti stated:

[Attorney Plasenti]: Your Honor[,] I spoke at length with Mr. 

Fenwick about his proposed or potential testimony as a witness 

in this trial. I spoke with Mr. Fenwick about information I 

received from both defense counsel and from the Assistant 

District Attorney prosecuting this case regarding that testimony 

and other information received by both of those parties. And 

then we talked about[,] and I understand that[,] Mr. Fenwick 

has an open criminal case here in Delaware County. Based on 

those conversations, it was my advice yesterday and it is my 

advice to Mr. Fenwick today and it is Mr. Fenwick’s desire to 

invoke his Fifth Amendment right not to be compelled to testify 

in this court case.

Id. at 10-11. After asking Fenwick if counsel’s statements were correct, to 

which Fenwick replied in the affirmative, the court dismissed Fenwick as a 

witness. Id. at 11. 

Appellant claimed in his pro se PCRA petition, and reiterates on appeal, 

that the trial court erred by allowing these witnesses to invoke their privilege 

against self-incrimination simply because they had open criminal cases 

pending in the same county. Appellant maintains that the court should have 

inquired further into how their testifying at Appellant’s trial would 

incriminate them. Because the court did not conduct such an inquiry, 

Appellant maintains that his trial counsel should have objected to the court’s 

dismissal of these witnesses.

In PCRA counsel’s Turner/Finley no-merit letter, he construed 

Appellant’s claim in the following manner: “Defendant asserts that trial 
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counsel was ineffective for failing to call Stefan Fenwick and James Shepard 

to testify on his behalf.” No-Merit Letter, 5/6/13, at 15 (unpaginated). 

Counsel then went on to conclude that counsel was not ineffective for failing 

to call these witnesses because each witness “invoked his 5th Amendment 

right not to testify.” Id. 

From our review of Appellant’s pro se PCRA petition, it is obvious that 

PCRA counsel misconstrued Appellant’s argument. Appellant did not allege 

that counsel was ineffective for failing to call Shepard and Fenwick; instead, 

he argued that counsel should have objected to the court’s acceptance of 

these witnesses’ invocation of their right to remain silent. PCRA counsel did 

not address this claim in his Turner/Finley no-merit letter, and Appellant 

expressly challenged that failure in his pro se response to counsel’s petition 

to withdraw. See “Objection and Response,” 5/28/13, at 17-19. On appeal, 

Appellant reiterates his arguments that (1) trial counsel acted ineffectively 

regarding the trial court’s decision to dismiss these witnesses, and (2) PCRA 

counsel ineffectively omitted a discussion of this claim from his no-merit 

letter. 

We are compelled to agree with Appellant that PCRA counsel’s 

Turner/Finley no-merit letter was inadequate. Counsel clearly 
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misconstrued Appellant’s issue and did not properly analyze the merits 

thereof.3 

Moreover, while the PCRA court correctly characterized Appellant’s 

ineffectiveness claim, it nevertheless provided a very cursory analysis 

thereof. The court stated:

Although [Appellant] now asserts that this Court 

“improperly” permitted the witnesses to invoke their rights 

against self-incrimination, he does not explain why this ruling 

was improper. This Court can think of no reason. The privilege 

against self-incrimination is of constitutional force. Both 

witnesses consulted with counsel before invoking the privilege. 

Therefore, it is recommended that the Superior Court reject the 

assertion that this Court erred when it allowed the witnesses to 

invoke it.

PCO at 10.

Initially, we disagree with the PCRA court that Appellant does not 

sufficiently explain why the trial court erred in accepting Shepard’s and 

Fenwick’s invocation of their right to remain silent. While Appellant’s 

argument may not be particularly eloquent, the essence of his claim is clear: 

____________________________________________

3 The Commonwealth similarly misinterprets Appellant’s argument and 

concludes it is meritless, stating:

Neither trial counsel nor PCRA counsel was ineffective for failing 

to call James Shepard or Stephan Fenwick as a witness. Both 

men consulted with an independent attorney and on the advice 

of said attorney elected to assert their Fifth Amendment rights to 

refrain from testifying. Therefore, neither counsel can be 

ineffective for failing to call them as witnesses.

Commonwealth’s Brief at 18.
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the trial court’s inquiry was insufficient to determine that these witnesses 

had a reasonable fear of self-incrimination and, as such, Appellant’s trial 

counsel should have objected to the court’s dismissing them. 

Moreover, we disagree with the PCRA court that Appellant’s claim is 

clearly meritless. Our Supreme Court has stated:

It is clear that under both our state and federal constitutions, a

criminal defendant has a right of compulsory process to obtain 

witnesses in his favor. Pa. Const. art. I § 9. See Washington v. 

Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). 

However, this right is qualified to the extent of existing 

testimonial privileges of witnesses, including the privilege 

against self incrimination. Id. at 23, n. 21, 87 S.Ct. at 1925, n. 

21.

Commonwealth v. Allen, 462 A.2d 624, 627 (Pa. 1983) (emphasis 

omitted). The Court has also discussed a witness’ invocation of his privilege 

against self-incrimination as follows:

The standard against which a trial judge must determine 

whether a witness may properly invoke a claimed Fifth 

Amendment privilege was set forth in Commonwealth v. 

Carrera, 424 Pa. 551, 227 A.2d 627 (1967).

When [a witness is called to testify], he or she is not 

exonerated from answering questions merely upon the 

declaration that in so doing it would be self-incriminating. 

It is always for the court to judge if the silence is justified, 

and an illusory claim should be rejected. However, for the 

court to properly overrule the claim of privilege, it must be 

perfectly clear from a careful consideration of all the 

circumstances, that the witness is mistaken in the 

apprehension of self-incrimination and the answer 

demanded cannot possibly have such tendency. (Emphasis 

[omitted], citations omitted.)

Id. at 553-54, 227 A.2d at 629.
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If an individual possesses reasonable cause to apprehend 

danger of prosecution, “it is not necessary that a real danger of 

prosecution exist to justify the exercise of the privilege against 

self-incrimination.” Id. “Moreover, the privilege extends not only

to the disclosure of facts which would in themselves establish 

guilt, but also to any fact which might constitute an essential link 

in a chain of evidence by which guilt can be established.” Id. 

See Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 

L.Ed. 1118 (1951). “The trial judge in appraising the claim must 

be governed as much by his personal perception of the 

peculiarities of the case as by the facts actually in evidence[.]” 

Id. at 487, 71 S.Ct. at 818 (citation omitted). To require the 

witness to prove the basis of the claim would force the disclosure 

of the information the Fifth Amendment was designed to protect 

against. Id. at 486, 71 S.Ct. at 818.

Allen, 462 A.2d 624, 627 (Pa. 1983).

Here, neither Shepard nor Fenwick was called to the stand and 

questioned before asserting the privilege against self-incrimination; instead, 

they asserted “[a] blanket privilege” which “generally is not permitted.” 

Commonwealth v. Kirwan, 847 A.2d 61, 65-66 (Pa. Super. 2004) 

(citations omitted). In Allen, our Supreme Court affirmed the trial court’s 

acceptance of a ‘blanket privilege,’ and found “[a] specific factual inquiry 

was ... unnecessary[,]” where “the testimony of record was sufficient to 

suggest [the witness’] complicity in the crime.” Allen, 462 A.2d at 627. 

Here, however, there is nothing in the record indicating that Shepard or 

Fenwick was involved in McLendon’s murder, and the simple fact that they 

had ‘open cases’ also did not suggest how their testimony at Appellant’s trial 

would be incriminating. Therefore, Allen supports Appellant’s argument 

that defense counsel should have requested a more specific factual inquiry 
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to determine if Shepard and Fenwick had reasonable cause to fear 

prosecution.

We also note that while this Court has declared that “there is no 

mandatory procedure for deciding whether the privilege against selfincrimination should be allowed,” we have held that “one acceptable 

procedure is to hold an in camera review.” Commonwealth v. Treat, 848 

A.2d 147, 149-150 (Pa. Super. 2004). 

In the usual case, the trial court could take the witness, the 

witness' counsel and defense counsel (the Commonwealth could 

not be present for obvious reasons) into chambers. In private, 

and off the record, the court could review the witness' testimony 

and make an informed decision about whether the witness has to 

testify. If the privilege is sustained, the court could even make 

some discrete on-the-record remarks that would explain why the 

privilege would be appropriate while avoiding revealing any 

incriminatory information the court might have obtained. 

Another option would be for the Commonwealth to grant the 

witness immunity. 

Id. at 150.

In Treat, the defendant was charged in a domestic violence incident 

against the victim, who sought to invoke her right to remain silent when 

called to the stand during his trial. Treat, 848 A.2d at 149. The court 

conducted an in camera hearing, at which defense counsel stated “that he 

believed the victim’s testimony would potentially subject her to prosecution 

for false reports, unsworn falsifications to authorities and other charges.” 

Id. Despite stating that “the possibility that the victim would incriminate 

herself was ‘ridiculous[,]’ ... the trial court sustained her claim of privilege[,] 

citing the statement of [her] counsel that [she] could incriminate herself.” 
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Id. This Court ultimately overruled the trial court’s decision, emphasizing 

that “although the trial court did have an in camera discussion with counsel, 

... no one offered anything to substantiate the claim of privilege.” Id. 

The same is true in the present case. Although Shepard and Fenwick 

had counsel who advised them to assert their right to remain silent because 

they had ‘open cases,’ there is nothing in the record indicating how or why 

Shepard’s or Fenwick’s testimony would have incriminated them in this, or 

any other, criminal case. Accordingly, Appellant’s claim that defense counsel 

should have objected to the court’s accepting these witnesses’ invocation of 

their right to remain silent has arguable merit. See also Commonwealth 

v. Rolon, 406 A.2d 1039 (Pa. 1979) (finding the trial court erred by 

accepting witness’ invocation of his privilege against self-incrimination where 

the witness never took the stand, the court did not permit Rolon to establish 

the line of questions he would have asked the witness, and there was 

nothing in the record linking the witness to the crime). However, because 

the PCRA court dismissed this claim without a hearing, we are unable to 

assess whether counsel had a reasonable basis for his decision not to raise 

such an objection. 

Accordingly, we are compelled to vacate the PCRA court’s order 

denying Appellant’s petition and remand for an evidentiary hearing on this 

particular trial counsel ineffectiveness claim. Additionally, we conclude that 

the PCRA court erred in allowing PCRA counsel to withdraw where counsel 

wholly failed to address this issue in his Turner/Finley no-merit letter, and 
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the claim has arguable merit necessitating further examination. 

Consequently, we direct that Appellant be appointed new PCRA counsel to 

represent him at the PCRA hearing addressing this issue.

We reach the same conclusion regarding another trial counsel 

ineffectiveness claim asserted by Appellant. Specifically, Appellant takes 

issue with trial counsel’s failure to object to the following instruction by the 

trial court, provided at the conclusion of Gregory Graham’s testimony:

The Court: All right. Okay. You may step down. ... One of the 

things that you need to know about witnesses is that one way of 

challenging their credibility is to demonstrate that they gave 

what is called prior inconsistent statements and in this case 

[defense counsel] has given – asked about statements that this 

witness[,] Mr. Graham[,] gave to Detective Pitts. One of the 

statements was did you tell Detective Pitts that the decedent[,] 

Isaiah McLendon[,] was a drug dealer or was involved in drugs 

and he may have said that to Detective Pitts and it was 

obviously inconsistent because he knew the real reason 

why this homicide occurred. There’s no evidence in this case 

that Isaiah McLendon was involved in dealing drugs and I want 

to make that clear to you. The reason for that testimony was 

not to indicate that the decedent was involved in drug dealing, 

but to show the inconsistent statements of the witness. Okay.

N.T. Trial, 10/15/10, at 145. Appellant claims that this instruction was 

prejudicial because it encouraged the jury to disbelieve Graham’s initial 

statement to police, in which he did not implicate Appellant in the murder, 

and to instead believe Graham’s trial testimony that Appellant shot 

McLendon. Appellant argues that if defense counsel had objected to this 

instruction, “the court would have corrected it’s [sic] error or granted a 

mistrial.” Appellant’s Brief at 52.
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Appellant clearly cited (and quoted) in his pro se PCRA petition the 

above-stated instruction by the trial court. See PCRA Petition, 9/24/12, at 

23. Nevertheless, in PCRA counsel’s Turner/Finley no-merit letter, counsel 

only reviewed the court’s closing jury instruction (provided on October 20, 

2010) and concluded that “nothing in the transcripts of the jury charge ... 

indicate that the trial court told the jury that there was a ‘real reason’ that 

McLendon was killed and Gregory Graham knew that reason.” No-Merit 

Letter at 14 (unpaginated). In other words, PCRA counsel did not review the 

comments proffered by the trial court on October 15, 2010, following 

Graham’s testimony. Appellant objected to PCRA counsel’s examination of 

this issue in his pro se response to counsel’s no-merit letter. See “Objection 

and Response,” 5/28/13, at 9. Because our review of Appellant’s pro se 

PCRA petition confirms that he clearly identified, and cited to, the court’s 

above-quoted comment, we agree with Appellant that PCRA counsel failed to 

properly review this issue in his Turner/Finley no-merit letter.

It also appears that the PCRA court did not adequately examine 

Appellant’s petition and the portion of the record cited therein. Instead, the 

court adopted an analysis nearly identical to that proffered by PCRA counsel 

in his no-merit letter. Namely, the court presumed Appellant was referring 

to the jury instruction the trial court provided before the jury retired to 

deliberate. See PCO at 8-9. After assessing that portion of the record, the 

PCRA court stated that,
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the jury instructions in this case, taken as a whole, were clear 

and had no tendency to mislead the jury. [The trial court] 

instructed the jury regarding Gregory Graham. [The trial court]

also instructed the jury regarding motive. The charge did not 

suggest that the jury was told that there was a “real reason” 

that the victim was killed and that Gregory Graham knew that 

reason. [Appellant’s] argument is without merit.

Id. at 9. 

In sum, it is apparent from our review of the record that PCRA counsel 

and the court both failed to properly address Appellant’s claim of trial 

counsel’s ineffectiveness. Accordingly, because we are remanding for an 

evidentiary hearing regarding Appellant’s first ineffectiveness claim, 

discussed supra, we direct that PCRA court permit Appellant to further 

develop the instant ineffectiveness claim at that hearing, as well. 

Appellant raises various other claims, which, for the reasons stated 

below, we conclude are either meritless or waived. Accordingly, these issues 

need not be addressed on remand.

First, Appellant argues that trial counsel was ineffective for failing to 

investigate “two known [eyewitnesses,]” Melvin Gross and Richard Gardner.” 

Appellant’s Brief at 32. The PCRA court points out that “[t]he name ‘Richard 

Gardner’ surfaced for the first time in [Appellant’s] Statement of [Errors] 

Complained of on Appeal.” PCO at 11 (unpaginated). Appellant did not 

raise in his pro se PCRA petition any issue regarding trial counsel’s 

ineffectiveness for failing to investigate Richard Gardner. We also see no 

mention of Gardner in Appellant’s pro se response to PCRA counsel’s petition 

to withdraw or in his response to the PCRA court’s Rule 907 notice of its 
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intent to dismiss. Thus, Appellant’s ineffectiveness claim regarding Richard 

Gardner is waived. See Commonwealth v. Washington, 927 A.2d 586, 

601 (Pa. 2007) (“Any claim not raised in the PCRA petition is waived and not 

cognizable on appeal.”) (citing Pa.R.A.P. 302(a) (“Issues not raised in the 

lower court are waived and cannot be raised for the first time on appeal.”). 

However, Appellant did argue in his pro se PCRA petition that trial 

counsel ineffectively failed to investigate Marvin Gross, thus preserving this 

assertion for our review. Appellant contends that trial counsel should have 

investigated Mr. Gross (and, presumably, called him to the stand at trial) 

because Mr. Gross was an eyewitness to the shooting and his description of 

what occurred was “somewhat different” than the testimony of the 

Commonwealth’s eyewitness, Andrea Ebo. See Appellant’s Brief at 34. 

Appellant does not elaborate on how Mr. Gross’ account of the shooting 

differed from Ms. Ebo’s. 

The PCRA court concluded that Mr. Gross would have provided a 

description of the shooter that was consistent with Ms. Ebo’s description. 

See No-Merit Letter, 5/6/13, at 12; PCO at 11 (unpaginated). The court 

explained:

[Mr.] Gross stated that he saw a black male wearing a black or 

gray hoodie and red backpack shoot the victim. This account is 

consistent with that of Andrea Ebo, who testified that the 

shooter was a dark-skinned African-American man of medium 

height wearing a black hoodie.

PCO at 11. Thus, the PCRA court reasoned that “[Mr.] Gross’[] testimony 

would have been of little assistance to [Appellant].” Id. Appellant’s 
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undeveloped argument does not convince us that the court’s conclusion was 

erroneous. Thus, this claim of trial counsel’s ineffectiveness is meritless.

Appellant also argues that trial counsel was ineffective for failing to 

investigate DEA Agent Belcher, who “could possibly have [had] evidence 

favorable to the defense....” Appellant’s Brief at 36. Essentially, Appellant 

claims that Agent Belcher must have possessed video surveillance footage of 

the murder based on the agent’s testimony that he had various cameras set 

up in the area of the shooting, and also because a fellow inmate informed 

Appellant that the agent had surveillance cameras in the area of N. 3rd

Street. See Appellant’s Brief at 37-38. Appellant maintains that trial 

counsel ineffectively failed to investigate whether Agent Belcher possessed 

such video surveillance evidence. However, Appellant did not raise this 

claim in his pro se PCRA petition. Accordingly, he has waived his argument 

that trial counsel was ineffective for failing to investigate Agent Belcher. 

See Washington, 927 A.2d at 601.

Appellant also maintains that trial counsel was ineffective for not 

objecting to the trial court’s jury instruction “that [Appellant] admitted to 

committing the crime.” Appellant’s Brief at 55. Specifically, the court 

stated: 

[The Court]: There is also evidence that the Defendant 

made an admission that he was the shooter to the police. 

Now what I am about to tell you about that admission and only 

that admission, because if you find that the Defendant made 

admissions to other people other than police officers you should 

evaluate that testimony in the ordinary way. But when a 

Defendant makes an admission of guilt to a police officer, you 
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have to look at that admission in a very specific way. We are 

talking about Officer Pitts’s testimony that the Defendant 

walked into the room after he was released from the cell 

and stated that he was the shooter, that he did it. This is 

what we are talking about. You may not consider that statement 

as evidence unless you find that he made the statement 

voluntarily.

N.T. Trial, 10/20/10, at 58-59 (emphasis added). 

Appellant argues that defense counsel should have objected to this 

instruction because there was no evidence that Appellant admitted to the 

shooting. However, Detective Brian Pitts testified that Appellant made the 

following statement to him: “Listen, this is what I’m going to tell you, I did 

it. It was me. Nobody knows the true facts. Nobody’s going to identify me. 

I want to tell you....” N.T. Trial, 10/15/10, at 187. We conclude that 

Detective Pitts’ testimony that Appellant stated to him, “I did it[,]” was 

sufficient to justify the court’s jury instruction regarding an admission by 

Appellant. Accordingly, we see no error in trial counsel’s failure to object to 

this instruction.

In addition to his various claims of trial counsel’s ineffectiveness, 

Appellant also avers that the Commonwealth committed a Brady violation 

by failing to turn over video surveillance footage of the street on which the 

murder occurred. Appellant claims that such footage was in the possession 

of Agent Belcher. Not only is this claim waived because it was not raised in 

Appellant’s pro se petition, but Appellant’s contention that such video 

footage exists is purely speculative. Moreover, in support of his contention 

that Agent Belcher possessed this footage, Appellant cites portions of his 
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trial testimony; clearly, if we accept Appellant’s argument that the agent’s 

testimony proves he possesses video footage of the murder, then Appellant 

became aware of this fact at the time of trial and could have asserted this 

purported Brady violation on direct appeal. For these reasons, Appellant’s 

claim is waived. 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for 

relief, a petitioner must prove that “[t]he allegation of error has not been 

previously litigated or waived”); 42 Pa.C.S. § 9544(b) (directing 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 post[-

]conviction proceeding”).

Appellant also avers that the Commonwealth elicited false testimony 

from witnesses, and/or knowingly permitted witnesses to make untrue 

statements on the stand. Appellant does not frame his argument as a claim 

of trial/appellate counsel ineffectiveness, and he does not discuss why this 

assertion could not have been raised on direct appeal. Accordingly, it is 

waived. See 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(b).

Lastly, we will address Appellant’s assertions that PCRA counsel acted 

ineffectively by filing an inadequate Turner/Finley no-merit letter, and that 

the PCRA court erred in granting counsel’s petition to withdraw. As 

discussed herein, it is apparent that PCRA counsel failed to properly assess 

two of Appellant’s trial counsel ineffectiveness issues, and at least one of 

those issues has arguable merit. Therefore, we are compelled to vacate the 

PCRA court’s order denying Appellant’s petition and remand for the 
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appointment of new PCRA counsel, who shall be permitted to file an 

amended petition on Appellant’s behalf. See Commonwealth v. Massina, 

2013 WL 4399018, at *1 (Pa. Super. 2013). We also direct that the PCRA 

court conduct an evidentiary hearing on the following two claims: (1) trial 

counsel was ineffective for failing to object to the trial court’s accepting 

Shepard’s and Fenwick’s invocation of their right to remain silent, and (2) 

trial counsel was ineffective for failing to object when the trial court 

instructed the jury that Graham knew the ‘real reason’ that this murder 

occurred. The PCRA court may also address at the hearing any other issues 

raised in PCRA counsel’s amended petition that warrant further review.

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2014