J-S29013-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

ANTHONY FITZGERALD 

 Appellant No. 1175 WDA 2014 

Appeal from the PCRA Order May 27, 2014 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0015801-2010 

BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.

*

 

MEMORANDUM BY PANELLA, J. FILED JULY 16, 2015 

 Appellant, Anthony Fitzgerald, appeals pro se from the order entered 

May 27, 2014, by the Honorable Jill E. Rangos, Court of Common Pleas of 

Allegheny County, which denied Fitzgerald’s petition filed pursuant to the 

Post Conviction Relief Act (“PCRA”).1 We affirm. 

 A panel of this Court previously summarized the history of this case as 

follows. 

On September 9, 2010, Fitzgerald was serving customers at a 

makeshift convenience store located at 6502 Shetland Street in 

Pittsburgh, at which he was employed. Around 11:00 P.M., 

Duncan Plowden (“Plowden”), a regular customer, approached 

the store’s sliding glass service window and punched Fitzgerald 

in the face. Fitzgerald then shot Plowden in the chest, and 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 42 Pa.C.S.A. §§ 9541-9546. 
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Plowden ultimately died from this wound. The police

subsequently arrested Fitzgerald and charged him with the 

aforementioned crimes. Following a jury trial, Fitzgerald was 

found guilty of third-degree murder and persons not to possess 

firearms. On September 26, 2011, the trial court sentenced him 

to 20 to 40 years of incarceration for third-degree murder and to 

a concurrent term of 60 to 120 months for the firearms violation. 

Commonwealth v. Fitzgerald, 1744 WDA 2011 at 1-2 (Pa. Super., filed 

July 5, 2013) (mem. op.), appeal denied, 79 A.3d 1097 (Pa. 2013). On 

appeal, this Court affirmed Fitzgerald’s judgment of sentence and our 

Supreme Court denied allocatur. See id. 

 Fitzgerald filed a timely pro se PCRA petition. The PCRA court 

appointed counsel. Appointed counsel filed a Motion to Withdraw as 

Counsel and an accompanying “no merit” letter. The PCRA court issued 

notice of its intent to dismiss the PCRA petition, granted counsel’s motion to 

withdraw, and subsequently dismissed the petition. This timely pro se 

appeal followed. 

 Fitzgerald raises the following issues for our review: 

1. Did trial counsel render effective assistance of counsel by 

failing to object to or request a cautionary instruction 

regarding testimony of prior bad acts? 

2. Did trial counsel render effective assistance of counsel for 

failing to present evidence in support of voluntary

manslaughter under a heat of passion theory? 

3. Was trial counsel ineffective for not presenting an expert 

witness on the effects of a concussion? 

4. Did trial counsel render ineffective assistance for failing to 

impeach a witness with prior inconsistent statements i.e 

(witness Lilisa Byrd)? 
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5. Whether all prior counsel were ineffective for failing to 

present all of the above claims of errors to the trial court, the 

Superior [C]ourt, and the PCRA court; and the cumulative 

effective of the errors did prejudice the PCRA 

petitioner/Appellant? 

Appellant’s Brief at 2. 

“On appeal from the denial of PCRA relief, our standard and scope of 

review is limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, 

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review 

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

viewed in the light most favorable to the prevailing party at the PCRA court 

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation 

omitted). 

In order to be eligible for PCRA relief, a petitioner must plead and 

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

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). 

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. 

§ 9543(a)(3). “[T]his Court applies a de novo standard of review to the 

PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 

259 (Pa. 2011) (citation omitted). 

As this Court has repeatedly stated, 

[t]o plead and prove ineffective assistance of counsel a 

petitioner must establish: (1) that the underlying issue has 

arguable merit; (2) counsel's actions lacked an objective 

reasonable basis; and (3) actual prejudice resulted from 
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counsel’s act or failure to act. Commonwealth v. Chmiel, 612 

Pa. 333, 30 A.3d 1111, 1127 (2011). 

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012). 

 Fitzgerald first claims that trial counsel was ineffective for failing to 

object to or request a cautionary instruction regarding evidence of alleged 

prior bad acts, in the nature of Lilisa Byrd’s2 testimony that Fitzgerald was a 

chronic crack cocaine user and was a jealous, physically and verbally abusive 

partner. See Appellant’s Brief at 12. “[T]he admission of evidence is within 

the sound discretion of the trial court and will be reversed only upon a 

showing that the trial court clearly abused its discretion.” Commonwealth 

v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012) (internal citations 

omitted). 

 It is impermissible to present evidence at trial of a defendant’s prior 

bad acts or crimes to establish the defendant’s criminal character or 

proclivities. See Pa.R.E. 404(b); Commonwealth v. Hudson, 955 A.2d 

1031, 1034 (Pa. Super. 2008). Such evidence, however, may be admissible 

“where it is relevant for some other legitimate purpose and not utilized 

solely to blacken the defendant’s character.” Commonwealth v. Russell, 

938 A.2d 1082, 1092 (Pa. Super. 2007) (citation omitted). 

Instantly, the PCRA court determined that Ms. Byrd’s testimony was 

admissible under the res gestae exception to Rule 404(b). See PCRA Court 

____________________________________________ 

2

 Ms. Byrd, who was Fitzgerald’s fiancée, was present at the time the 

shooting occurred. 
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Opinion, 11/12/14 at 8. “Pennsylvania courts have long recognized the 

special significance of evidence which provides [the factfinder] with the res 

gestae, or complete history, of a crime.” Commonwealth v. Wattley, 880 

A.2d 682, 687 (Pa. Super. 2005) (citation omitted). 

[T]he trial court is not ... required to sanitize the trial to 

eliminate all unpleasant facts from ... consideration where those 

facts are relevant to the issues at hand and form part of the 

history and natural development of the events and offenses for 

which the defendant is charged. 

Id. (citation omitted). Rule 404(b)(3), however, mandates that other 

crimes, wrongs, or acts evidence “may be admitted in a criminal case only 

upon a showing that the probative value of the evidence outweighs its 

potential for prejudice.” Pa.R.E., Rule 404(b)(3). See also Russell, 938 

A.2d at 1092. 

 We agree that Ms. Byrd’s testimony was properly admissible as part of 

the res gestae of the crime. Ms. Byrd testified that, immediately prior to the 

shooting, Fitzgerald’s facial expression was somewhat distorted and he 

appeared to be twitching—symptoms she recognized from prior occasions on 

which Fitzgerald had smoked crack. See N.T., Jury Trial, 5/3/11 at 132. 

Ms. Byrd also testified that when the victim asked Ms. Byrd whether she was 

okay, Fitzgerald became incensed at the thought that the victim was 

interested in a sexual relationship with Ms. Byrd. See id. at 134. Several 

moments later, Fitzgerald shot the victim. See id. at 136. Ms. Byrd’s 

testimony that Fitzgerald had a history of crack cocaine use and was both 

jealous and abusive in their relationship not only provided a context for the 
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crime that occurred, but also provided permissible insight into Fitzgerald’s 

state of mind. Accordingly, as we find the trial court properly admitted Ms. 

Byrd’s testimony pursuant to Rule 404(b), Fitzgerald’s underlying claim lacks 

merit. 

 Fitzgerald next claims that trial counsel was ineffective for failing to 

request a voluntary manslaughter jury instruction. See Appellant’s Brief at 

17. In sum, Fitzgerald alleges that he suffered a concussion because of the 

blow he received from the victim, which he contends rendered him incapable 

of “cool reflection,” thus negating a finding of malice. Appellant’s Brief at 

20. Fitzgerald provides no evidence, medical or legal, to support the novel 

theory that he was medically incapable of acting with malice. Fitzgerald 

further fails to verify that he indeed sustained a concussion immediately 

prior to the shooting as claimed. Correspondingly, Fitzgerald fails to 

establish that there is merit to the argument underlying his claim of 

ineffectiveness. Accordingly, this claim fails. 

 In his next, related claim, Fitzgerald contends counsel was ineffective 

for failing to call an expert witness on “the effects of a concussion.” 

Appellant’s Brief at 24. Here, Fitzgerald must show that the outcome of the 

proceedings would have been different had counsel called an expert medical 

witness. However, Fitzgerald again fails to offer any evidence to establish 

that he sustained a concussion in the first instance, the manner in which 

expert medical testimony would inure to his benefit, or, aside from mere 

speculation, the relevance of such testimony to his defense. We note 
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“counsel cannot be considered ineffective for failing to pursue a frivolous 

claim.” Commonwealth v. Sepulveda, 55 A.3d 1108, 1133 (Pa. 2012). 

Therefore, Fitzgerald cannot maintain an ineffectiveness claim on this basis. 

 In Fitzgerald’s fourth claim of ineffectiveness, he asserts that trial 

counsel failed to impeach Ms. Byrd with prior inconsistent statements and 

other testimony at trial. Fitzgerald details a litany of alleged discrepancies 

between Ms. Byrd’s initial statement to police and her trial testimony. See 

Appellant’s Brief at 40-49. Fitzgerald altogether fails to establish the 

manner in which he was prejudiced by these alleged discrepancies, or show 

that the outcome of the proceedings would have been different had counsel 

impeached Ms. Byrd’s testimony with her prior inconsistent statements. 

Therefore, Fitzgerald fails to establish counsel’s ineffectiveness. 

 Fitzgerald’s final argument asserts that all prior counsel were 

ineffective for failing to present the above allegations of ineffectiveness. As 

we have already determined that Fitzgerald’s ineffectiveness claims lack 

merit, this claim must also fail. 

Accordingly, having found no merit in the issues on appeal, we will 

affirm the order below. 

Order affirmed. 

Judgment Entered. 
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Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/16/2015