J-S46043-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES BRYANT. 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1894 EDA 2017

Appeal from the PCRA Order, June 1, 2017,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0013822-2011.

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 26, 2018

James Bryant appeals pro se from the order denying his first petition for 

relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 

9541-9546. We affirm.

The PCRA court, which acted as the fact-finder during Bryant’s bench 

trial, summarized the pertinent facts as follows:

At approximately 12:00 AM on the evening of July 2, 

2011, [Bryant] and his fiancée, Meatha Saunders 

(Saunders), returned to Saunders’ home on 67th Street in 

southwest Philadelphia. The couple found that the front 

door had been left open, and the lights had been left on. 

Saunders’ son, Will Myatt (Myatt), was asleep on the couch 

in the living room. [Bryant] woke Myatt and confronted him. 

A physical altercation ensued; Myatt and [Bryant] wrestled 

for several minutes until two of Myatt’s friends – Dion 

Bennett (decedent) and Meron Ayele (Ayele) – overheard 

the two men fighting, entered the house, and separated 

Myatt and [Bryant]. Ayele recalled that he was not strong 
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enough to stop the fight by himself, so Bennett came to his 

aid, separating Myatt and [Bryant] from one another.

After being pulled away from Myatt by decedent, 

[Bryant] exited Saunders’ home through the back door. 

Decedent, Myatt, and Ayele exited through the front door 

onto 67th Street. A few minutes later, [Bryant] emerged 

from the alleyway on the side of Saunders’ home; once on 

67th Street, [Bryant] instigated a verbal spat with decedent. 

Initially, decedent responded, “We all grown out here. 

Everybody should just go home and talk about it tomorrow.” 

When [Bryant] chose not to leave, decedent stated, “Fuck it 

old head. I’ll just fight you myself.” [Bryant] told decedent, 

“We can just take this on the next block.”

[Bryant] got into his car and drove to Bonaffon Street. 

He drove against traffic and parked the wrong way on 

Bonaffon Street, adjacent to a breezeway between the 6700 

blocks of Bonaffon Street and South 67th Street. [Bryant’s] 

car could be seen across the breezeway from where 

decedent, Myatt, Ayele, and Atakelete Seleshi (Seleshi), 

another friend of Myatt’s, were standing on 67th Street. 

[Bryant] started “calling people out,” from inside his car. 

Specifically, [Bryant] called out to decedent in a loud voice 

from his car, and invited decedent to cross the breezeway 

and meet him on Bonaffon Street. According to Ayele, at 

the time [Bryant] started calling people out, decedent 

appeared upset, but was “just standing” calmly on 67th

Street. Decedent then obliged and walked across the 

breezeway towards the driver’s side of [Bryant’s] car. While 

standing outside the car, decedent punched [Bryant] 

through the open driver’s side window. [Bryant] then fired 

a .22 caliber gun, striking decedent in the chest. At the time 

of the shooting, [Bryant] was the sole occupant of the car, 

which was still running. [Bryant] then returned to 67th

Street in his car, “said something to somebody outside,” and 

then “pulled off.”

Immediately following the gunshot, Ayele and Seleshi 

saw decedent fleeing from [Bryant’s] car. Decedent

staggered into the breezeway and collapsed in Ayele’s arms. 

Ayele and Seleshi carried decedent to decedent’s car and 

transported him to the Hospital of the University of 

Pennsylvania, where he was pronounced dead shortly after 

arrival.
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PCRA Court Opinion, 12/5/17, 2-4 (citations and footnote omitted).

At the conclusion of his bench trial, the trial court convicted Bryant of 

third-degree murder and related charges. On October 10, 2012, the trial court 

sentenced him to an aggregate term of 19 1⁄2 to 41 years in prison. Following 

the denial of post-sentence motions, Bryant filed a timely appeal to this Court. 

On May 8, 2014, we affirmed Bryant’s judgment of sentence. 

Commonwealth v. Bryant, 104 A.3d 41 (Pa. Super. 2014). Bryant did not 

seek further review.

On September 11, 2014, Bryant filed a timely pro se PCRA petition, and, 

on October 4, 2016, a supplemental PCRA petition. The PCRA court appointed 

counsel. On January 12, 2017, PCRA counsel filed a “no-merit” letter and a 

motion to withdraw, pursuant to Commonwealth v. Turner, 544 A.2d 927 

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

(en banc), based upon PCRA counsel’s conclusion that Bryant’s petition was 

without merit. On April 3, 2017, the PCRA court issued Pa.R.Crim.P. 907 

notice of intent to dismiss the petition without a hearing. Bryant filed a pro 

se response. By order enter May 19, 2017, the PCRA court dismissed Bryant’s 

petition, and granted PCRA counsel’s motion to withdraw. This appeal follows. 

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

Bryant raises the following eight issues in his brief:

A. Whether trial counsel was ineffective for failing to 

adequately prepare by meeting with [Bryant]?

B. Whether trial counsel was ineffective for failing to request 

a pre-trial psychological evaluation?
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C. Whether trial counsel was ineffective for failing to 

conduct a pre-trial investigation of [a] video tape?

D. Whether trial counsel was ineffective for failing to 

conduct a pre-trial investigation of [the] victim’s attempt 

to enter [Bryant’s] car through a locked rear passenger 

door?

E. Whether trial counsel was ineffective for failing to 

interview known witness [Mary] Crooks?

F. Whether trial counsel was ineffective for failing to 

properly present and preserve the claim for 

Reconsideration of Sentence?

G. Whether [appellate] counsel was ineffective for failing to 

properly present and preserve the claim [of] insufficient 

evidence to support the third degree murder conviction?

H. Whether PCRA counsel was ineffective for [filing a] NoMerit Letter when the pro se claims possessed merit?

Bryant’s Brief at 3.

Our scope and standard of review is well settled:

In PCRA appeals, our scope of review is limited to the 

findings of the PCRA court and the evidence on the record 

of the PCRA court's hearing, viewed in the light most 

favorable to the prevailing party. Because most PCRA 

appeals involve questions of fact and law, we employ a 

mixed standard of review. We defer to the PCRA court's 

factual findings and credibility determinations supported by 

the record. In contrast, we review the PCRA court's legal 

conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) 

(citations omitted). In addition, A PCRA petitioner’s right to an evidentiary 

hearing is not absolute. Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa. 

Super. 2003). Rather, the PCRA court has discretion to dismiss a petition 

without a hearing when the court is satisfied that there are no genuine issues 
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of material fact, the petitioner is not entitled to post-conviction collateral relief, 

and no legitimate purpose would be served by further proceedings. 

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014). To obtain a 

reversal of a PCRA court’s decision to dismiss a petition without a hearing, a 

petitioner must show that he has raised a genuine issue of material fact which, 

if resolved in his favor, would have entitled him to relief, or that the court 

otherwise abused its discretion in denying a hearing. Id.

All of Bryant’s issues allege the ineffective assistance of counsel. To 

obtain relief under the PCRA premised on a claim that counsel was ineffective, 

a petitioner must establish, by a preponderance of the evidence, that counsel's 

ineffectiveness so undermined the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken place. Commonwealth 

v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s 

performance is presumed to be constitutionally adequate, and counsel will 

only be deemed ineffective upon a sufficient showing by the petitioner.” Id. 

This requires the petitioner to demonstrate that: (1) the underlying claim is 

of arguable merit; (2) counsel had no reasonable strategic basis for his or her 

action or inaction; and (3) counsel’s act or omission prejudiced the petitioner. 

Id. at 533.

As to the first prong, “[a] claim has arguable merit where the factual 

averments, if accurate, could establish cause for relief.” Commonwealth v. 

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts 
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rise to the level of arguable merit is a legal determination.’” Id. (citing 

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005). 

As to the second prong of this test, trial counsel's strategic decisions 

cannot be the subject of a finding of ineffectiveness if the decision to follow a 

particular course of action was reasonably based and was not the result of 

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545 

A.2d 882, 886 (Pa. 1988). Counsel's approach must be "so unreasonable 

that no competent lawyer would have chosen it." Commonwealth v. Ervin, 

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted). A petitioner 

asserting ineffectiveness based upon trial strategy must demonstrate that the 

“alternatives not chosen offered a potential for success substantially greater 

than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 

1993). “We do not employ a hindsight analysis in comparing trial counsel’s 

actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at 

707. A PCRA petitioner is not entitled to post-conviction relief simply because 

a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d 

576, 582 (Pa. Super. 1995). 

As to the third prong of the test for ineffectiveness, “[p]rejudice is 

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

the result of the proceeding would have been different." Stewart, 84 A.3d at 

707. “A reasonable probability ‘is a probability sufficient to undermine 
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confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899 

A.2d 365, 370 (Pa. Super. 2006). 

Finally, when considering an ineffective assistance of counsel claim, the 

PCRA court “is not required to analyze these [prongs] in any particular order 

of priority; instead if a claim fails under any necessary [prong] of the 

ineffectiveness test, the court may proceed to that [prong] first.” 

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted). 

In particular, when it is clear that the petitioner has failed to meet the 

prejudice prong, the court may dispose of the claim on that basis alone, 

without a determination of whether the first two prongs have been met. 

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel 

cannot be deemed ineffective for failing to pursue a meritless claim. 

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

As did the PCRA court, we address Bryant’s first two issues together. 

Bryant first claims that trial counsel was ineffective for failing adequately to 

prepare for trial by meeting with him. Bryant argues that, because he was 

charged with first-degree murder, he “should have had multiple visits” from 

[trial counsel] “to understand the totality of the circumstances and to explore 

the complexities of the issues with [him].” Bryant’s Brief at 7. Bryant asserts, 

“had [trial] counsel bothered to visit [him] more than once he would have 

learned of [his] attempted suicide while in jail.” Id. According to Bryant, 

because he “was deprived of the benefits of adequate face-to-face meeting[s], 
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it is clear that [his] claim has arguable merit.” Bryant’s Brief at 7. He further 

argues that no reasonable basis exists for failing to have personal contact with 

a client who was facing murder charges. Finally, Bryant argues that he was 

prejudiced by trial counsel’s failure to meet with him in person prior to trial, 

because “in order to prepare a defense to a charge of murder in the first 

degree, it is essential that at [the] very least, counsel meet his client in 

person, to gather information from his client in person, to gather information 

from the client, evaluate the client’s demeanor, and try to establish a working 

relationship.” Id. at 8.

In his second issue, Bryant argues that trial counsel was ineffective for 

failing to request a pre-trial psychological evaluation. Bryant argues that this 

evaluation would have aided him in lessening “his culpability to voluntary 

manslaughter under the distinct theories of heat of passion and imperfect selfdefense.” Id. Bryant also argues that the “[q]uestion of competency enters 

the arena for [him] based upon his suicide attempt” because this attempt 

“should have caused [trial] counsel to question [Bryant’s] competency.” Id. 

Bryant further argues that “the proffered evidence of his mental health history 

would have established that he shot the victim under the heat of passion” and 

that “the omitted evidence would have demonstrated that his ‘passion’ had its 

origins in his mental disorders.” Id. at 9. Finally, Bryant “further maintains 

that the provocation necessary for a heat of passion claim was established by 

the [decedent’s] threats against his life preceding the murder, and the stress 
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[Bryant] experienced when the gun discharged.” Id. According to Bryant, “if 

[his] proffered evidence of mental health impairment was believed and 

accepted as evidence of ‘passion,’ the PCRA court was incorrect in dismissing 

the [PCRA] petition.” Bryant’s Brief at 9. 

The PCRA court found that Bryant failed to adequately develop either 

claim of ineffectiveness of counsel, and that the claims otherwise lacked 

arguable merit. The Court explained:

[Bryant] failed to provide any facts to establish either of 

[his claims].

***

In addressing the first portion of [Bryant’s] claims, this 

Court notes that it was [Bryant’s] burden to provide 

sufficient information to describe the exact failure of trial 

counsel. [Bryant] failed to explain what he meant by “the 

totality of the circumstances” and specifically, what 

information he would have shared with trial counsel had 

there been more pre-trial meetings. By failing to develop 

this claim, despite being on notice from this Court’s [Rule] 

907 Notice that the information in the PCRA petition was 

insufficient, [Bryant] failed to show this aspect of his claim 

had any arguable merit.

[Bryant] also claims that trial counsel was ineffective for 

failing to learn about [his] suicide attempt in jail and for 

failing to request a pre-trial psychological evaluation. 

[Bryant] claims these were “avenues by which [he] could 

have either attained acquittal or a reduced penalty.” 

Although [Bryant] did not specifically relate these matters 

to an issue of competency to stand trial in his [Rule] 1925(b) 

Statement, since [Bryant’s] petition only raised these 

matters with his competency to be tried, this Court will only 

address the issues of [Bryant’s] suicide attempt and pretrial evaluation as they related to [Bryant’s] competency. 

Initially, [Bryant] claims that trial counsel failed to learn 

about [his] suicide attempt in jail while awaiting trial 
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because trial counsel failed to meet with [him] several 

times. [Bryant] did not explain why he did not share this 

information with trial counsel during their first meeting. 

Furthermore, [Bryant] provided no explanation as to what 

purpose this information would have served, beyond 

mitigating evidence with regard to the sentence imposed. 

When filing a PCRA petition, [a] petitioner is required to 

specify the grounds for the relief requested. [Bryant] 

initially failed to provide any specificity in his pro se PCRA 

petition and failed to address this deficiency even after this 

Court’s [Rule] 907 Notice. 

[Bryant] claims that trial counsel failed to request a 

pretrial psychological evaluation, despite [his] allegation 

that trial counsel saw a need for one. As with [Bryant’s] 

preceding claim, [Bryant] failed to explain why trial counsel 

was ineffective for failing to request such an evaluation. 

[Bryant] failed to provide any reasoning or evidence to show 

that his case was actually prejudiced by trial counsel not 

requesting a pretrial psychological evaluation. Because 

[Bryant] did not meet his burden by providing sufficient 

information, he cannot now show he was actually prejudiced 

and therefore, this claim fails. 

PCRA Court Opinion, 12/5/17, at 6-7 (citations and footnotes omitted).

Despite Bryant’s failure to meet his statutory burden, the PCRA court 

further addressed Bryant’s claims in relation to his competency to stand trial, 

and concluded that the record demonstrated that he “was competent to stand 

trial.” Id. at 8. 

Our review of the record supports the PCRA court’s conclusions. 

Initially, we note that it is well settled that the “mere shortness of time for a 

defendant to confer with his counsel before trial does not constitute ineffective 

assistance of counsel.” Commonwealth v. Robinson, 334 A.2d 687, 688 

(Pa. Super. 1975); see also Commonwealth v. Bundy, 421 A.2d 1050, 
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1051 (Pa. 1980) (citation omitted) (explaining that “[t]he time devoted to 

attorney-client consultations affords no basis for inferring the total extent of 

trial preparation”). Thus, although trial counsel only met once in person with 

Bryant, this does not reflect on the adequacy of trial counsel’s preparation for 

trial. Rather, in order to establish arguable merit to such a claim, the PCRA 

petitioner must identify specific issues of merit counsel should have raised or 

what beneficial information counsel would have learned had he consulted 

further with his client. See, e.g. Commonwealth v. Harvey, 812 A.2d 1190, 

1196-97 (Pa. 2002). We agree with the PCRA court that Bryant has failed to 

meet this burden. 

Before an evidentiary hearing will be granted, a PCRA petitioner “must 

set forth an offer to prove at an appropriate hearing sufficient facts upon which 

a reviewing court can conclude that trial counsel may have, in fact, been 

ineffective.” Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001) 

(quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981). 

Bryant’s PCRA petitions made no such proffer. Stated differently, while Bryant 

refers to “proffered” and “omitted” evidence, he failed to explain what further 

information trial counsel would have gained from further consultation with him 

or a pre-trial psychological evaluation. Our review of the record supports the 

PCRA court’s conclusion that Bryant was competent to stand trial. 

In addition, although Bryant now claims that use of his mental health 

history at trial would have resulted only in a voluntary manslaughter 
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conviction, this claim was not included in his PCRA petition, and was not 

presented to the PCRA court with sufficient specificity in his Rule 1925(b) 

statement. Thus it is waived. See generally Commonwealth v. 

Whitehawk, 146 A.3d 266 (Pa. Super. 2016). Moreover, Bryant cites no 

case authority to support his claim that his alleged mental illness could have 

led to a “heat of passion” involuntary manslaughter conviction, see 

Commonwealth v. Hutchinson, 25 A.3d 277, 314 (Pa. 2011) (defining the 

term “passion” as used in the crime of involuntary manslaughter). Finally, 

there is nothing in the record to support Bryant’s claim that the victim 

threatened his life. Indeed, the record testimony regarding the events prior 

to the shooting contradict such a claim. Thus, because Bryant has failed to 

establish that either claim of ineffectiveness has arguable merit, his first two 

claims do not entitle him to relief.1

In his third and fourth issues, Bryant argues that trial counsel was 

ineffective for failing to conduct a pre-trial investigation of a videotape from a 

business close to the crime scene, and for failing to investigate the decedent’s 

attempt to enter his vehicle via the locked rear passenger door. Bryant argues 

that “a cursory investigation [by trial counsel] would have secured information 

in possession of the prosecution and the police, i.e., a video tape from the 

____________________________________________

1 Although Bryant baldly asserts that use of his mental health history could 

also have led to a voluntary manslaughter (unreasonable belief) conviction, 

he provides no further argument.
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neighborhood Chinese store,” which “would have shown the [decedent] 

running after” his vehicle. Bryant’s Brief at 10. According to Bryant, “[i]n a 

case as this one, and where the unpresented evidence so clearly bolsters the 

defense that was partially presented by [trial] counsel, prejudice is clear.” Id. 

at 11.

In support of his fourth issue, Bryant asserts that a “cursory 

investigation would have revealed the victim had attempted to enter [his] 

vehicle through a locked rear passenger door at the scene of the incident.” 

Id. at 12. Bryant further argues that during the attempted entry, he clearly 

observed a gun in the decedent’s hand, and these facts “clearly would have a 

new dimension to the cross-examining of the witnesses.” Id. In addition, 

Bryant opines that this information, “would have [alerted] trial counsel to 

pursue matters with the police about the witnesses who removed the 

[decedent’s] gun from his pocket. It also would have uncovered that the 

[decedent] had drugs in his system from the toxicology report.” Id. 

Like Bryant’s first two issues, the PCRA court concluded that these 

claims of ineffectiveness were undeveloped and otherwise without arguable 

merit. The court explained:

As to the matter of the security camera footage, [Bryant] 

failed to cite to any facts in the record which would indicate 

that a recording of security camera footage existed, let 

alone that it would show any of the events leading up to the 

shooting. The [trial] testimony of Saunders made mention 

of a Chinese Store “on the corner,” which decedent ran past 

to get to [Bryant’s] car, which was parked around the corner 

on Bonnafon Street. There is no mention in these records 
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of whether there were any cameras installed at the Chinese 

Store, which may have recorded any of the events on the 

day of the shooting, nor did the Commonwealth at any time 

indicate that it possessed such a recording. In order to be 

eligible for relief under the PCRA, the petitioner must “plead 

and prove” each claim in his PCRA petition. As [Bryant] 

failed to provide any evidence to support his claim that 

security camera footage existed, short of the bare assertion 

of it, it fails.

[Bryant] also claims that trial counsel was ineffective for 

failing to conduct an investigation that would have revealed 

that decedent attempted to enter [Bryant’s] car while 

holding a gun. Aside from [his] bare assertion that decedent 

had a gun, [Bryant] failed to provide any evidence that 

anyone saw decedent with a gun. [Bryant] elected not to 

testify. Thus, at trial, it was uncontested that decedent did 

not have a weapon in his possession at the time of the 

incident. [Seleshi testified that he “patted down” decedent’s 

clothing while he was looking for decedent’s keys in order 

to drive decedent to the hospital, and did not discover any 

weapons at that time. Further, neither Saunders nor Ayele 

observed any kind of weapon on decedent’s person at any 

time the evening of the shooting.] As such, this claim is 

without arguable merit and, therefore, it fails.

Next, [Bryant] claims that trial counsel was ineffective 

for failure to learn about or address the fact that decedent 

had drugs in his system at the time of the shooting. 

Because [trial] counsel did, in fact, address this fact, this 

claim lacked arguable merit.

PCRA Court Opinion, 12/5/17, at 9-10 (citations and footnotes omitted).

Once again our review of the record supports the PCRA court’s 

conclusions. Claims of trial counsel’s ineffectiveness are not self-proving and 

therefore cannot be raised in a vacuum. See generally, Commonwealth v. 

Pettus, 424 A.2d 1332 (Pa. 1981). Because Bryant has not established that 

a video tape of security camera footage even existed, this ineffectiveness 
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claim rests on no more than speculation. In addition, nothing in the record 

supports his claim that the decedent possessed a gun on the night of the 

shooting. As recognized by the PCRA court, the testimony from witnesses at 

trial indicated that the decedent was unarmed. Although Bryant now claims 

that he saw the decedent with a gun in his hand, Bryant had the opportunity 

to relay this information to trial counsel either before or during trial. There is 

no record evidence that he did so. Finally, as noted by the PCRA court, trial 

counsel stipulated to the admission of the medical examiner’s cause of death, 

which included the toxicology report, and trial counsel, during his closing 

argument, referred to the presence of drugs in the decedent’s system as 

affecting the decedent’s behavior on the night of the incident. See PCRA Court 

Opinion, 12/5/17, at 10-11. For all these reasons, Bryant’s third and fourth 

issues afford Bryant no relief.

In his fifth issue, Bryant argues that trial counsel was ineffective for 

failing to interview Mary Crooks. According to Bryant, Ms. Crooks “was initially 

questioned by the police because she saw a black male run past her and throw 

his hat on the fence by the Chinese store on the block.” Bryant’s Brief at 13-

14. Bryant argues that because the Chinese store was in close proximity to 

where the shooting occurred, she “could have shed light on what the 

[decedent] was doing before he attacked [him].” Bryant contends that trial 

counsel was provided with Ms. Crooks’ statement in discovery, and that he 

was prejudiced because Ms. Crooks was an “eye-witness to the defense theory 

that the [decedent] attacked” him. Id. at 14. Bryant further contends that 
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her testimony would have also contradicted “the alleged theory put forward 

by the Commonwealth.” Id.

In dismissing this claim, the PCRA court noted that Bryant failed to 

attach to his PCRA petition the requisite certification regarding Ms. Crooks’ 

proposed testimony, information regarding her name, address and date of 

birth, and “any documents material to that witness’s testimony.” PCRA Court 

Opinion, 12/5/17, at 11-12 (citing 42 Pa.C.S.A. 9545(d)). The PCRA court 

further stated that, besides not providing this certification, Bryant “failed to 

even provide evidence to establish that such an individual was, in fact, 

interviewed by the police in reference to the shooting.” Id. at 12. Finally, the 

PCRA court noted that it informed Bryant of this deficiency in its Rule 907 

notice, but that Bryant did not address the matter further in his response. Id.

We agree with the PCRA court’s conclusion that the lack of a certification 

from Bryant regarding Ms. Crooks, in and of itself, is fatal to his ineffectiveness 

claim. Moreover, as recognized by the PCRA Court, in order to prevail on a 

claim that trial counsel was ineffective for failing to interview a witness, a 

PCRA petitioner must establish that: 1) the witness existed; 2) the witness 

was available and willing to testify for the defense; 3) counsel was aware, or 

should have been aware, of the witness’s existence; and 4) that the petitioner 

was prejudiced by the absence of the witness’s testimony. Commonwealth 

v. Simpson, 66 A.3d 253, 271 (Pa. 2013). Here, other than his bald assertion 

that trial counsel was provided Ms. Crooks’ statement in discovery, Bryant has 
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failed to prove any of the Simpson factors. Thus, the PCRA court properly 

rejected this ineffectiveness claim, and Bryant’s fifth issue fails.

In his sixth issue, Bryant claims that trial counsel was ineffective for 

failing to properly present and preserve a claim regarding his motion for 

reconsideration of his sentence. According to Bryant, trial counsel failed to 

support his post-sentence motion with legal argument and case law. See 

Bryant’s Brief at 15. In addition, Bryant claims that there can be no 

“reasonable tactical decision” to not adequately support the motion, especially 

“when that omission yields a long sentence for one’s client that would 

otherwise be the case.” Id. 

The PCRA court found this claim to lack arguable merit because trial 

counsel did file a reconsideration motion. Moreover, the court concluded that 

Bryant “failed to allege what case law or legal argument trial counsel could 

have provided” such that his reconsideration motion would have been granted. 

PCRA Court Opinion, 12/5/17, at 13.

 The court also explained:

Furthermore, this Court does not see what legal 

argument [Bryant] believes trial counsel could have made. 

At [Bryant’s] sentencing hearing, trial counsel requested the 

Court to consider [Bryant’s] past as well as his mental 

health issues. In Pennsylvania, one of the fundamental 

norms in the sentencing process is that a defendant’s 

sentence be individualized. That is what occurred in this 

case. [Bryant] was not given the maximum possible 

sentence of 20-40 years [of] imprisonment on the murder 

of the third degree conviction. The Court considered the 

facts of the case and the information contained in the 

Presentence Investigation and in the Mental Health Report. 
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Because trial counsel did in fact file for reconsideration of 

sentence, the claim has no arguable merit, and therefore it 

fails.

Id. (citations and footnote omitted).

We agree with the PCRA Court that this claim of ineffectiveness affords 

Bryant no relief. In Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007), 

our Supreme Court held that a PCRA petitioner raising a claim of 

ineffectiveness regarding counsel’s failure to file a motion for reconsideration 

must establish actual prejudice. See Reaves, 923 A.2d at 1130. 

Specifically, the Court held that a PCRA petitioner must show that filing the 

motion would have led to a more favorable sentence:

The Commonwealth argues that the Superior Court’s 

prejudice analysis misses the mark because the panel 

improperly focused on the effect of counsel’s inaction upon 

the [appeal], rather than looking to the outcome of the 

underlying [proceeding] itself. The Commonwealth is 

correct. Although contemporaneous objections operate to 

preserve issues for appellate review, they serve an equally 

important function in obviating appeals by affording the 

trial court a timely opportunity to correct mistakes and/or 

to reconsider decisions. Whether [counsel] can be deemed 

ineffective, then, depends upon whether [a defendant] has 

proven that a motion to reconsider sentence if filed . . . 

would have led to a different and more favorable outcome 

at [sentencing]. In this context, the only way the 

proceeding would have been more favorable would be if 

counsel’s objection secured a reduction in the sentence. The 

Superior Court panel erred as a matter of law in failing to 

appreciate the actual focus of the [actual] prejudice 

standard.

Reaves, 923 A.2d at 1131-32 (emphasis in original; footnote omitted). Our 

Supreme further concluded that Reaves did not establish actual prejudice, 
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since “[on] this record, there is no reason to believe that, if only counsel had 

asked for a statement of reasons for the sentence at the [time of sentencing] 

that statement or explanation alone would have led the court to reduce the 

sentence”). Id. at 1132.

Here, Bryant failed to establish actual prejudice. Our Supreme Court in 

Reaves rejected a petitioner’s claim of actual prejudice based merely upon 

counsel’s failure to preserve an appellate issue. Although Bryant 

acknowledges that trial counsel filed a reconsideration motion, he 

nevertheless asserts that counsel failed to adequately support his sentencing 

claims with legal argument and case law. Bryant has provided no basis to 

disturb the PCRA court’s determination that a motion for sentence 

reconsideration would have resulted in a reduced sentence. Given these 

circumstances, the PCRA court did not err in dismissing Bryant’s sixth 

ineffectiveness claim. 

In his seventh claim, Bryant asserts that appellate counsel was 

ineffective because he “failed to articulate any substantial argument on the 

issue of insufficient evidence to support the third degree murder conviction.” 

Bryant’s Brief at 16. In addition, Bryant notes that appellate counsel failed to 

provide the correct docket number. Id. We agree with the PCRA court that, 

because appellate counsel challenged the sufficiency of the evidence 

supporting Bryant’s murder conviction in his direct appeal, Bryant’s sufficiency 

claim is a “previously litigated” claim under the PCRA. See PCRA Court’s 

Opinion, 12/5/17, at 13-14 (citing 42 Pa.C.S.A. § 9544(a). Bryant’s claim 
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that appellate counsel was ineffective in presenting the sufficiency challenge 

on his direct appeal is refuted by our review of this Court’s disposition of that 

claim. Our rejection of Bryant’s sufficiency challenge was not based on an 

incorrect docket number. Rather, although appellate counsel argued that the 

evidence presented by the Commonwealth supported only a conviction for 

voluntary manslaughter (unreasonable belief), we disagreed, concluding that 

“the totality of the circumstances established an unintentional killing done with 

malice.” Bryant, unpublished memorandum at 6. Thus, Bryant’s seventh 

ineffectiveness claim fails.

In his eighth and final issue, Bryant asserts that PCRA counsel was 

ineffective for filing a Turner/Finley no-merit letter instead of an amended 

petition raising his meritorious issues, and that raising the claim within his 

brief is his first opportunity to raise the claim. See Bryant’s Brief at 16. We 

disagree. Bryant had the opportunity to raise this claim in response to the 

PCRA court’s Rule 907 notice of intent to dismiss his petition. See 

Commonwealth v. Pitts, 981 A.2d 875, 879-80 n.3 (Pa. 2009). Because he 

did not do so, his claim of PCRA counsel’s ineffectiveness is inappropriately 

being raised for the first time on appeal. See Pa.R.A.P. 302(a). Nevertheless, 

because we have concluded that all of Bryant’s other ineffectiveness claims 

fail, even if this final claim was preserved, this would have failed.

In sum, because all of Bryant’s ineffectiveness claims are meritless, we 

affirm the PCRA court’s order denying him post-conviction relief.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/26/18