J-S22044-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PHILLIP MALDONADO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 83 MDA 2020

Appeal from the PCRA Order Entered December 13, 2019

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

No(s): CP-38-CR-0000656-2015

BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JUNE 23, 2020

Appellant, Phillip Maldonado, appeals from the order entered 

December 13, 2019, that denied his first petition filed under the Post 

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

The facts underlying this appeal are as follows. On May 16, 2014, 

Tiffany Hoover purchased drugs from Appellant at his home. 

Commonwealth v. Maldonado, No. 1504 MDA 2016, unpublished 

memorandum at 2 (Pa. Super. filed June 13, 2017) (citing N.T., 8/3/2016, at 

18-20); PCRA Court Opinion, dated December 13, 2019, at 2. While she was 

at Appellant’s house, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546.
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Appellant introduced her to the victim[, Julio Rivera,] and asked 

her if she wanted to make some money, which Ms. Hoover 

understood as having sex or “doing other things” with the victim. 

[N.T., 8/3/2016,] at 20. Ms. Hoover observed that the victim had 

bags of heroin that he purchased from Appellant; bags identical in 

appearance to bags she purchased from Appellant. See id. at 20-

21. The victim and Ms. Hoover then drove to a motel [in 

Lebanon], smoking crack cocaine, purchased from Appellant, 

together. See id. When they got into the motel room, Ms. Hoover 

stated that she injected heroin that she had purchased from 

Appellant, while the victim sniffed his heroin. See id. at 21-23. 

Then, [when they ran out of heroin,] at the victim’s request, 

Ms. Hoover contacted Appellant to purchase more heroin. See id. 

at 22. Appellant came to the motel [in a taxi cab] and delivered 

an additional four bags of heroin. See id. Ms. Hoover helped the 

victim inject one bag of heroin; shortly thereafter, she observed 

the victim get sick and then go into a sleepy state. See id. at 24-

25. At that point, Ms. Hoover stole some of the victim’s property 

and left. See id. at 25. The next morning, the motel’s assistant 

manager found the victim dead in the room and contacted the 

police. See id. at 11-12.

Lebanon City Police Detective William Walton . . . spoke with 

Appellant on three separate occasions. See id. at 46-50. In his 

first statement, Appellant admitted that he purchased a specific 

brand of heroin called Sale on Ms. Hoover’s behalf, then sold it to 

her on May 16, 2014. See id. at 46. He also admitted going to 

the motel to sell additional drugs to her, but claimed it was crack 

cocaine not heroin. See id. at 47. During the second 

conversation, Appellant claimed that when Ms. Hoover contacted 

him for additional heroin, it was too late in the evening to contact 

the dealer he purchased it from and that this was why he delivered 

crack cocaine. See id. at 48. During the third conversation, 

Appellant admitted delivering the second batch of heroin to 

Ms. Hoover but claimed that she must have tampered with it 

before giving it to the victim. See id. at 50.

Maldonado, No. 1504 MDA 2016, at 2-3 (some formatting); see also PCRA 

Court Opinion, dated December 13, 2019, at 2.

“On April 27, 2015, the Commonwealth filed a criminal information 

charging Appellant with one count each of[:] drug delivery resulting in death[
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(“DDRD”), a felony of the first degree;] criminal conspiracy[;] possession with 

intent to deliver a controlled substance[;] and receiving stolen property.[

2]” 

Id. at 2. When Sergeant Jonathan Hess of the Lebanon City Police “gave 

Appellant a copy of the charges . . ., Appellant stated that he gave the heroin 

to Ms. Hoover and she ‘shot [the victim] up.’” Id. at 3-4 (quoting N.T., 

8/3/2016, at 65).

On March 26, 2015, Appellant waived his preliminary hearing; at this 

time, he was represented by the Lebanon County Public Defender. On May 5, 

2015, after finding “its appearing to the [trial c]ourt that there is a conflict of 

interest by the Public Defender’s Office,” the court appointed new trial counsel 

to represent Appellant. Order of Court, 5/3/2015. 

On June 26, 2015, [t]rial [c]ounsel filed a Pretrial Motion seeking 

to have the [DDRD] and Conspiracy charges dismissed and 

seeking a jury instruction on Involuntary Manslaughter. [The trial 

court] conducted a hearing on the Pretrial Motion on August 12, 

2015. On September 15, 2015, [the trial court] issued an Order 

refusing to dismiss the [DDRD] and Conspiracy charges and 

deferring the decision regarding the Involuntary Manslaughter 

instruction until trial. . . .

On August 3, 2016, immediately before trial was to begin, 

[Appellant] submitted a letter to the [trial court] complaining 

about [t]rial [c]ounsel’s representation and an alleged conflict of 

interest. The [trial court] met with counsel in chambers and read

the letter on the record. Trial [c]ounsel acknowledged that 

[Appellant] had complained about his representation on an almost 

weekly basis. [Trial counsel] advised [Appellant] that he could 

conduct his defense pro se if he was unhappy, but [Appellant] had 

declined that suggestion. [The trial court] denied [Appellant]’s 

____________________________________________

2 18 Pa.C.S. §§ 2506(a), 903(a)(1), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. 

§ 3925(a), respectively.
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request for the appointment of new counsel and [Appellant] 

proceeded to trial with [t]rial [c]ounsel conducting his defense. 

PCRA Court Opinion, dated December 13, 2019, at 5, 8-9 (citing N.T., 

8/3/2016, at 3-6).

At trial, “[c]ounsel conducted a lengthy cross-examination of Hoover[,]” 

id. at 21, which included the following:

Q. And you know that when all is said and done you’re going 

to be standing in front of a judge and you’re going to be sentenced 

for your role in [DDRD], do you not?

A. Yes.

Q. Okay. When you stand[] in front of that judge, you are 

going to tell that judge that you were sitting here and testifying 

today, aren’t you?

A. Yes.

Q. You want that judge to know that you were sitting here and 

being cooperative and talking to us, right?

A. Yes.

Q. And you want that judge to know that you helped the 

prosecutor as much as you could, don’t you? Isn’t that what you 

want the judge to know?

A. Uh-huh, yes. . . .

Q. Now, you have three cases right now that are pending –

A. Yes. . . .

Q. And they have been delayed in order for you to come in here 

and testify, isn’t that correct?

A. I’m really not sure. I haven’t spoken to my lawyer in a 

while. . . .

[Q.] You’re in a green uniform right now, but isn’t true that 

recently you have been in a red uniform in the prison?

A. Yes.
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Q. And you were in a red uniform, meaning that you were in a 

disciplinary uniform, correct?

A. Yes, I was.

Q. And that was for using drugs in the prison; isn’t that right?

A. Yes.

Q. Okay. So while you were in prison this time you have been 

using drugs?

A. Yes. . . .

Q. Now, you said that [Appellant] was your connection to 

obtaining drugs when you were out on the street?

A. Yes.

Q. You had more than one connection though, right?

A. Yes. . . .

Q. So we talked about your story that you’re giving today, but 

you also acknowledge that you have given stories in the past to 

the police, correct?

A. Yes.

Q. By my count you met with the police three separate times 

and [have] given three separate stories; isn’t that right?

A. Not three separate stories. . . .

Q. So when you talked to the police just six days after this 

happened, more than two years ago, you didn’t tell them anything 

about [Appellant] selling you an additional four bags of heroin, did 

you?

A. I – I told them that he came down in a taxi, yes. . . .

Q. Okay. And the reason that you went with [the victim] was 

because your intention was to have sex with him for money; isn’t 

that right?

A. Yes.

N.T., 8/3/2016, at 29-33, 36, 38-39.
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Trial counsel “questioned Detective Walton about the existence of any 

videos and Detective Walton . . . testified that he did not believe the [m]otel 

had any cameras.” PCRA Court Opinion, dated December 13, 2019, at 23.

The parties stipulated that the victim died because of mixed 

substance toxicity. See [N.T., 8/3/2016,] at 68. Namely, he had 

ethanol (alcohol), morphine, cocaine, cocaethylene, 

benzoylecgonine, and 6-monoacetylmorphine in his blood at the 

time of death. See id.

Joann Sell, the retired manager of the toxicology department for 

Health Network Laboratories, also testified as an expert at trial. 

See id. at 69, 79. Ms. Sell stated that neither the amounts of 

alcohol nor the amounts of cocaine in the victim’s blood were 

sufficient to cause death. See id. at 90, 92-94. She testified that, 

to a reasonable degree of scientific certainty, the victim would not 

have died but for the use of heroin. See id. at 94-95, 105, 108.[

3]

At the close of the Commonwealth’s evidence, Appellant moved 

for a judgment of acquittal with respect to the count of receiving 

stolen property. See id. at 112. The trial court granted the 

motion. See id.

Appellant took the stand on his own behalf. See id. at 113. 

Appellant testified that he both used and sold drugs, sometimes 

acting as an intermediary, purchasing drugs from another dealer 

and selling them to a user. See id. at 113-15. He admitted that 

he purchased the Sale brand of heroin from another dealer and 

sold it to Ms. Hoover on May 16, 2014. See id. at 115. He also 

admitted that, later that day, after receiving a phone call from 

Ms. Hoover, he took a cab to the motel and sold her crack cocaine; 

he believed it was too late at night to get more of the Sale brand 

of heroin. See id. at 116-18. Appellant claimed that Ms. Hoover 

____________________________________________

3 6-monoacetylmorphine is a marker for heroin use, and, based on the level 

of 6-monoacetylmorphine in the victim’s system, Sell concluded that he died 

a short time after ingesting the heroin, as heroin dissipates within two hours 

of consumption. N.T., 8/3/2016, at 108-09; PCRA Court Opinion, dated 

December 13, 2019, at 4.
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was alone at the motel room and averred that he had never sold 

drugs to the victim and did not ever see him. See id. at 118-19.

The jury convicted Appellant of all remaining charges, including 

involuntary manslaughter,[4 a felony of the second degree,] which 

Appellant requested. See id. at 133, 139-40. On August 31, 

2016, the trial court sentenced Appellant to an aggregate term of 

incarceration of not less than nine nor more than nineteen years 

to be served consecutively to [Appellant’s five to ten year 

sentence in an unrelated action at Docket Number CP-38-CR0001143-2014.] See Sentencing Order, 8/31/16, at i-iii.[

5

 

Appellant received no penalty for involuntary manslaughter, as it 

merged with DDRD. Id. at ii.] On September 8, 2016, Appellant 

filed both a timely notice of appeal and a concise statement of 

errors complained of on appeal.

Maldonado, No. 1504 MDA 2016, at 4-5 (some formatting).

Thereafter, [Appellant] sent correspondence to the [trial c]ourt 

which [the court] treated as a Motion to Appoint Substitute 

Counsel. In this correspondence, [Appellant] requested that 

another attorney be appointed to handle his appeal based on 

allegations of a conflict of interest between himself and [t]rial 

[c]ounsel and various shortcomings in [t]rial [c]ounsel’s handling 

of his defense.

[The trial court] conducted a hearing on that Motion on 

September 28, 2016. At that hearing, [Appellant] complained 

that there was a conflict of interest because [t]rial [c]ounsel had 

questioned his credibility during cross-examination in another

criminal action, Commonwealth v. William Culbreath,

2

in 

which [t]rial [c]ounsel had represented William Culbreath and 

Appellant had testified as a witness for the Commonwealth. He 

also raised various complaints regarding [t]rial [c]ounsel’s 

handling of his defense and the fact that [t]rial [c]ounsel had 

advised him that his appeal had no merit.

____________________________________________

4 18 Pa.C.S. § 2504(a).

5 On September 8, 2016, the trial court entered an amended written 

sentencing order, so as to correct a clerical error from the written sentencing 

order dated August 31, 2016. Appellant’s judgment of sentence, however, 

did not change.
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2 Commonwealth v. William Davaughn Culbreath, 

Court of Common Pleas of Lebanon County, No. CP-38-CR763-2014. Both the [trial c]ourt and [Appellant] requested 

a transcript of [Appellant]’s testimony from the jury trial 

which was conducted in that case on January 5, 2015. The 

notes of testimony of that jury trial were never transcribed 

and the court stenographer who recorded the proceeding 

has left County employment. Unfortunately, the 

stenographer’s notes could not be located for a transcript to 

be prepared[.]

PCRA Court Opinion, dated December 13, 2019, at 5-6. The trial court 

continued the hearing until October 5, 2016. At that time, Appellant agreed 

to allow trial counsel to continue representing him on appeal, with the 

understanding that he could raise ineffective assistance of counsel claims 

against trial counsel on collateral review. See N.T., 10/5/2016, at 31-33; see 

also Letter from trial court to trial counsel (October 19, 2016).

“On December 9, 2016, counsel filed a motion to withdraw and 

Anders[

6] brief in this Court[,]” asserting that “the evidence was insufficient 

to sustain Appellant’s conviction[.]” Maldonado, No. 1504 MDA 2016, at 5. 

On June 13, 2017, this Court affirmed Appellant’s judgment of sentence and 

granted trial counsel’s request to withdraw. Id. at 1.

On December 20, 2017, Appellant filed his first, pro se, timely PCRA 

petition. The next day, the PCRA court appointed counsel to represent 

Appellant. On January 30, 2018, the PCRA court ordered PCRA counsel to file 

____________________________________________

6 Anders v. California, 386 U.S. 738 (1967).
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an amended petition within 30 days of the date of the order. On February 20, 

2018, PCRA counsel filed a supplemental PCRA petition.7

On May 16, 2019, the PCRA court held an evidentiary hearing, during 

which --

[Appellant] again raised his claim of a conflict of interest between 

himself and [t]rial [c]ounsel due to their interaction during the 

William Culbreath jury trial. [Appellant] claim[ed] that during 

his cross-examination [at the Culbreath trial], [t]rial [c]ounsel 

attacked [Appellant]’s credibility and called him a liar. As a result, 

[Appellant] claim[ed] that [t]rial [c]ounsel was “prejudiced 

against me from the beginning.” [Appellant] claim[ed] that he 

was deprived of his right to effective representation when [t]rial 

[c]ounsel told him that “he couldn’t file a conflict of interest or 

ineffective counsel against himself” and failed to request that new 

counsel be appointed to handle this matter. . . . Trial [c]ounsel 

[testified] that he did personally meet with [Appellant] prior to the 

jury trial although he was unable to recall the exact number of 

times or the locations of their meetings due to the passage of 

time: “there was no way to go to trial without having a face-toface meeting.” He explained that these meetings would have 

occurred at the Lebanon County Correctional Facility and/or at the 

Courthouse. He explained that he was fully prepared for the jury 

trial and knew that [Appellant] wanted to testify; he also knew the 

substance of the testimony of both [Appellant] and Hoover. He 

also noted that [Appellant] had written him numerous letters 

expressing his wishes and beliefs about the case. Trial [c]ounsel 

always answered these letters.

PCRA Court Opinion, dated December 13, 2019, at 9, 20 (quoting N.T., 

5/16/2019, at 10, 76). PCRA counsel asked trial counsel, “Would you think it 

____________________________________________

7

In the certified record, the supplemental PCRA petition has two date-stamps: 

February 20, 2018, and April 10, 2018. Both state “Entered & Filed, Clerk of 

Courts, Lebanon, PA.” There is no indication in the record why there are two 

filing dates. Nonetheless, as the certified docket lists February 20, 2018, as 

the date that the supplemental PCRA petition was filed, we will accept that 

date and thus consider the supplemental PCRA petition to have been timely 

filed.
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would have been helpful or beneficial to go through each different variation of 

the stories that [Hoover] gave?” N.T., 5/16/2019, at 91. Trial counsel 

answered, “If the stories were different. In a substantive way, I think that 

may have been useful, yes.” Id. Also, trial counsel believed that the motel 

did not have any surveillance cameras. PCRA Court Opinion, dated 

December 13, 2019, at 23.

On December 13, 2019, the PCRA court denied Appellant’s petition via

a written order and opinion. The lower court’s docket reveals that Appellant, 

who was still represented by counsel, filed a pro se notice of appeal on 

January 9, 2020, but the notice was never forwarded to this Court. On 

January 10, 2020, PCRA counsel filed a notice of appeal, which was docketed 

in this Court as the instant appeal at No. 83 MDA 2020. As the counseled 

notice of appeal was timely filed, there was no need for this Court to order 

that the trial court forward the pro se notice of appeal to this Court to be 

docketed, in order for Appellant to obtain the benefit of an earlier filing date.8

Appellant now presents the following issues for our review:

[1.] Whether the Appellant was denied his constitutionally 

guaranteed right to effective representation when Appellant avers 

that [trial counsel] failed to interview and call Eric Michael Livering 

as a witness as he would have testified that Tiffany Hoover 

informed him that she cut the drugs that she used to inject into 

the victim that ultimately killed him?

____________________________________________

8 On January 17, 2020, PCRA counsel filed Appellant’s statement of errors 

complained of on appeal. On January 21, 2020, the PCRA court entered a 

statement that its opinion dated December 13, 2020, would serve as its 

opinion pursuant to Pa.R.A.P. 1925(a).
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[2.] Whether the Appellant was denied his constitutionally 

guaranteed right to effective representation when Appellant avers 

that [trial counsel] failed to interview or call the following 

witnesses to rebut Tiffany Hoover’s testimony that she provided 

at trial regarding what happened on the day in question: 

Racheal Pilkington; Christine Shaw; and Samantha Santiago?

[3.] Whether the Appellant was denied his constitutionally 

guaranteed right to effective representation when Appellant avers 

that [trial counsel] failed to file a motion to allow Appellant to have 

a new preliminary hearing when Appellant was not granted his 

promise to be returned to the Lancaster County Prison in return 

for Appellant waiving his preliminary hearing?

[4.] Whether the Appellant was denied his constitutionally 

guaranteed right to effective representation when Appellant avers 

that [trial counsel] failed to file a Petition for Writ of Habeas 

Corpus to attack the Commonwealth’s establishment of a prima 

facie case?

[5.] Whether the Appellant was denied his constitutionally 

guaranteed right to effective representation when Appellant avers 

that [trial counsel] asked the [trial c]ourt to include the offense of 

Involuntary Manslaughter?

[6.] Whether the Appellant was denied his constitutionally 

guaranteed right to effective representation when Appellant avers 

that [trial counsel] failed to have confidential face-to-face 

communication with him while preparing for trial?

[7.] Whether the Appellant was denied his constitutionally 

guaranteed right to effective representation when Appellant avers 

that [trial counsel] failed to properly cross-examine 

Tiffany Hoover regarding the numerous variations of her story?

[8.] Whether the Appellant was denied his constitutionally

guaranteed right to effective representation when Appellant avers 

that [trial counsel] failed to provide a proper defense for 

Appellant’s trial by failing to obtain the [m]otel surveillance video 

and taxi records to prove that Appellant was not present at the 

[m]otel when the drugs were given to the victim that resulted in 

his death?

[9.] Whether the Appellant was denied his constitutionally

guaranteed right to effective representation when Appellant avers 

that [trial counsel] failed to obtain the victim’s phone records to 
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prove that he was contacting other drug dealers on the night in 

question?

[10.] Whether the Appellant was denied his constitutionally

guaranteed right to effective representation when Appellant avers 

that [t]rial [c]ounsel should have filed a Suppression Motion 

regarding the fact that the Commonwealth reviewed the phone 

records prior to the search warrant being filed?

[11.] Whether the Appellant was denied his constitutionally 

guaranteed right to effective representation when Appellant avers 

that [trial counsel] was a conflict of interest to the case as he 

cross-examined Appellant in a previous case where Appellant was 

a Commonwealth witness?

Appellant’s Brief at 4-8 (issues re-ordered to facilitate disposition) (suggested 

answers omitted).

“We review the denial of PCRA relief to decide whether the PCRA court’s 

factual determinations are supported by the record and are free of legal error.” 

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting 

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)), reargument

denied (July 17, 2019).

All of Appellant’s appellate challenges allege ineffective assistance of 

trial counsel.

[C]ounsel is presumed to be effective.

To overcome this presumption, a PCRA petitioner must plead and 

prove that: (1) the underlying legal claim is of arguable merit; 

(2) counsel’s action or inaction lacked any objectively reasonable 

basis designed to effectuate his client’s interest; and 

(3) prejudice, to the effect that there was a reasonable probability 

of a different outcome if not for counsel’s error.

A failure to satisfy any of the three prongs of this test requires 

rejection of a claim of ineffective assistance.

Id. at 1000 (internal brackets, citations, and quotation marks omitted).
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Appellant’s first two claims specifically allege ineffective assistance of 

trial counsel for failure to call certain witnesses – Eric Michael Livering, 

Racheal Pilkington, Christine Shaw, and Samantha Santiago.

In establishing whether defense counsel was ineffective for failing 

to call witnesses, Appellant must [still] prove (1) the witness 

existed; (2) the witness was available to testify for the defense; 

(3) counsel knew of, or should have known of, the existence of 

the witness; (4) the witness was willing to testify for the defense; 

and (5) the absence of the testimony of the witness was so 

prejudicial as to have denied the defendant a fair trial.

Id. at 998 (internal brackets omitted) (quoting Commonwealth v. Treiber,

121 A.3d 435, 463-64 (Pa. 2015)). Appellant has failed to allege, let alone

prove, that Livering was available or willing to testify for the defense. See

Appellant’s Brief at 15-18. Likewise, he has failed to plead or to prove that

Pilkington, Shaw, or Santiago were willing to testify for the defense. See id.

at 18-21. For example, none of these four potential witnesses provided 

affidavits establishing that they were willing to testify for the defense, and 

none of them were called to testify at the PCRA hearing. Accordingly, 

Appellant has not established that trial counsel was ineffective for failing to 

call these four witnesses. Medina, 209 A.3d at 998.

Next, Appellant contends that trial counsel was ineffective for failing to 

request a new preliminary hearing after Appellant initially waived said hearing

in the belief that he would be transferred from Lebanon County Prison to 

Lancaster County Prison if he agreed to the waiver. Appellant’s Brief at 21-

22. However, in order to establish ineffectiveness, Appellant must establish 

“that there was a reasonable probability of a different outcome if not for 
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counsel’s error.” Medina, 209 A.3d at 1000. Appellant fails to establish how 

having a preliminary hearing would have resulted in a different outcome at his 

trial, such as not guilty verdicts on any or all of the charges. See Appellant’s 

Brief at 21-24. For that reason, Appellant is unable to establish the prejudice 

prong of the ineffectiveness test, id., and, as he cannot satisfy one prong, the 

entire ineffectiveness claim fails. Medina, 209 A.3d at 1000.

Appellant next maintains that trial counsel was ineffective for failing to 

file a petition for writ of habeas corpus “to attack the Commonwealth’s 

establishment of a prima facie case.” Appellant’s Brief at 24. This Court has 

already reviewed the evidence and found it sufficient to support Appellant’s 

convictions beyond a reasonable doubt on all counts. See generally 

Maldonado, No. 1504 MDA 2016. A preliminary hearing has a lower burden 

of proof of probable cause. Commonwealth v. McBride, 595 A.2d 589, 592 

(Pa. 1991) (“A judge at a preliminary hearing is not required, nor is he 

authorized to determine the guilt or innocence of an accused; his sole function 

is to determine whether probable cause exists to require an accused to stand 

trial on the charges contained in the complaint.”); Commonwealth v. Marti, 

779 A.3d 1177, 1180 (Pa. Super. 2001) (“[t]he Commonwealth need not 

prove the elements of the crime beyond a reasonable doubt; rather, the prima

facie standard requires evidence of the existence of each and every element 

of the crime charged”; “the Commonwealth need only demonstrate sufficient 

probable cause to believe the person charged has committed the offense”). 

Appellant points to no evidence presented by the Commonwealth at trial that 
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was different than what it would have presented at a preliminary hearing. This 

evidence satisfied the burden of proof of beyond a reasonable doubt; ergo, it 

would have fulfilled the lower burden of proof of probable cause at a 

preliminary hearing. Hence, no purpose would have been served by trial 

counsel filing a petition for writ of habeas corpus, and the underlying legal 

claim thereby lacks arguable merit. Again, as Appellant cannot satisfy one 

prong of the ineffectiveness test, this entire ineffectiveness claim fails. 

Medina, 209 A.3d at 1000.

Appellant further contends that trial counsel was ineffective, because he

“asked the [trial c]ourt to include the offense of Involuntary Manslaughter.” 

Appellant’s Brief at 27. “Appellant avers that he was severely prejudiced when 

the charge of Involuntary Manslaughter was added at the end, as the Jury

would now believe that he was guilty of Involuntary Manslaughter.” Id. at 

28. Appellant’s argument is nonsensical. A jury found that the evidence was 

sufficient to convict Appellant of DDRD, a felony of the first degree; trial 

counsel’s request for a charge of involuntary manslaughter was made in an 

attempt to persuade the jury that he should be convicted of a lesser crime, as 

involuntary manslaughter was charged as only a felony of the second degree. 

Additionally, Appellant was not sentenced for involuntary manslaughter and 

hence is not prejudiced by this conviction. This challenge thereby merits no 

relief.

Appellant next argues that he was denied his constitutionally 

guaranteed right to effective representation when . . . [trial counsel] failed to 
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have confidential face-to-face communication with [Appellant] while preparing 

for trial [and] . . . only one time did he have a very brief phone conversation 

with him pertaining to housing.” Appellant’s Brief at 29-30. After a thorough 

review of the record, the briefs of the parties, the applicable law, and the PCRA 

court opinion, we conclude that this challenge merits no relief. The PCRA court 

opinion properly discusses and disposes of that question:

We find no ineffectiveness on the part of [t]rial [c]ounsel in this 

regard. Trial [c]ounsel testified that he personally met with 

[Appellant] and the two exchanged numerous written 

correspondence in which [Appellant] was able to express his 

wishes regarding his defense and [t]rial [c]ounsel was able to 

provide answers to [Appellant]’s questions. Although [Appellant] 

may have desired more face-to-face time with [t]rial [c]ounsel, 

we believe the two had established an effective line of 

communication and were able to fully prepare the defense 

strategy prior to trial. Thus, we find no basis for collateral relief.

PCRA Court Opinion, dated December 13, 2019, at 21; see also id. at 20 

(citing N.T., 5/16/2019, at 76).

Appellant further asserts that he “was denied his constitutionally 

guaranteed right to effective representation when . . . [trial counsel] failed to 

properly cross-examine Tiffany Hoover regarding the numerous variations of 

her story.” Appellant’s Brief at 32. Appellant alleges that he “ask[ed trial 

counsel] to ask Tiffany Hoover various questions pertaining to her numerous 

stories and statements, but he never asked [her] any of those questions[,]”

even though trial counsel later “testified at the PCRA [h]earing that it would 

have been useful to go through the different variations of Tiffany Hoover’s 

testimony.” Id. at 32-33 (citing N.T, 5/16/2019, at 91).
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However, we agree with the PCRA court’s observation that Appellant 

“does not divulge to us what specific questions he feels [t]rial [c]ounsel should 

have asked of Hoover.” PCRA Court Opinion, dated December 13, 2019, at 

22.9 Moreover,

[trial counsel’s] questioning exposed [Hoover’s] motives for 

testifying for the Commonwealth, impeached her credibility by 

reference to prior statements, noted her intention to trade sex for 

drugs on the night of this incident, discussed charges filed against 

her for using drugs in prison, and established that she had other 

drug sources besides [Appellant]. He asked her at length about 

her pending criminal charges, including an action involving 

[DDRD] charges for [the victim]’s death. Hoover admitted that 

her three pending cases had all been delayed pending her 

testimony in this action and she admitted that she had initially lied 

and left out significant details when questioned about this incident 

by the police, having given three different versions of [w]hat had 

transpired on the night of [the victim]’s death.

Id. at 21-22; see N.T., 8/3/2016, at 29-33, 36, 38-39. Like the PCRA court, 

“we fail to see what more he could have asked to impeach her testimony.” 

PCRA Court Opinion, dated December 13, 2019, at 22. Ergo, Appellant’s 

underlying claim lacks arguable merit, and, since Appellant has failed to 

establish this one prong of the ineffectiveness test, his entire claim that trial 

counsel was ineffective for failing to cross-examine Hoover properly likewise 

fails. Medina, 209 A.3d at 1000.

____________________________________________

9 Not only did Appellant not submit any questions to the trial court, but 

Appellant did not provide any of these alleged questions in his appellate brief, 

either. See Appellant’s Brief at 32-34.
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Appellant furthermore urges this Court to find that trial counsel was 

ineffective for “failing to obtain the [m]otel surveillance video and taxi records 

to prove that Appellant was not present at the [m]otel when the drugs were 

given to the victim that resulted in his death.” Appellant’s Brief at 34.10 

Additionally, he now alleges that “the victim passed away . . . prior to 

Appellant’s arrival at the [m]otel, and the taxicab records that prove that fact.” 

Id. at 36. He continues: “In addition, although Appellant had the taxicab 

records from his discovery packet, [trial counsel] failed to review them and 

use them at trial even though Appellant requested that he do so.” Id. at 35-

36. 

As noted above, trial counsel “questioned Detective Walton about the 

existence of any videos and Detective Walton . . . testified that he did not 

believe the [m]otel had any cameras.” PCRA Court Opinion, dated 

December 13, 2019, at 23. In fact, Appellant has provided no evidence “that 

the motel had any surveillance cameras or that any footage of the night of 

this incident was ever in existence. If such footage was ever in existence, it 

is unlikely that it would still be available a year later when [t]rial [c]ounsel 

was appointed to the case.” Id.; see also Order of Court, 5/3/2015.

____________________________________________

10 We note that DDRD does not require the provider’s actual presence when 

the victim consumes the drugs or dies as a result of consumption. 18 Pa.C.S. 

§ 2506(a) (“A person commits a felony of the first degree if the person 

intentionally administers, dispenses, delivers, gives, prescribes, sells or 

distributes any controlled substance or counterfeit controlled substance in 

violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, 

No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, 

and another person dies as a result of using the substance.”).
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Appellant’s underlying legal claim therefore relies entirely upon the taxi

cab records. See Appellant’s Brief at 35-36. Thus, in order to determine 

whether this underlying legal claim has arguable merit, we would need to 

review those records. However, they are not in the certified record; in fact, 

no exhibits from any of Appellant’s hearings or his trial appear in the certified 

record.

Our 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. . . . [T]he ultimate 

responsibility of ensuring that the transmitted record is complete 

rests squarely upon the appellant and not upon the appellate 

courts.

Commonwealth v. Holston, 211 A.3d 1264, 1276 (Pa. Super. 2019) 

(quoting Commonwealth v. Bongiorno, 905 A.2d 998, 1000-1001 (Pa. 

Super. 2006) (en banc)). By failing to ensure that the taxi cab records were 

in the certified record, Appellant has precluded us from determining whether 

the underlying legal claim has arguable merit. As he has failed to establish 

this one prong of the ineffectiveness test, his entire ineffectiveness claim 

based on the taxi cab records fails. Medina, 209 A.3d at 1000.

Appellant’s antepenultimate claim of ineffective assistance of trial 

counsel is that counsel “failed to obtain the victim’s phone records to prove 

that he was contacting other drug dealers on the night in question.” 

Appellant’s Brief at 37. The victim’s telephone records do not appear in the 

certified record; nevertheless, assuming that they did and that they showed 

that the victim called other drug dealers on the night of his death, such 
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evidence would still not establish that Appellant did not deliver the fatal dose. 

Moreover, Hoover explicitly testified that the bag that she injected into the 

victim immediately before he became sick and lethargic came from Appellant, 

and no evidence to the contrary was presented. Maldonado, No. 1504 MDA 

2016, at 2-3 (citing N.T., 8/3/2016, at 22, 24-25). For this reason, Appellant 

has failed to establish that the outcome of his trial would have changed had 

trial counsel obtained the victim’s telephone records and thus failed to 

establish the prejudice prong of the ineffectiveness test, and, without this one 

prong, this entire claim fails. Medina, 209 A.3d at 1000.

In his penultimate claim, Appellant believes that trial counsel was 

ineffective for failing to file a motion to suppress the victim’s telephone 

records. Appellant’s Brief at 40-41. In this Court’s review of the sufficiency 

of the evidence on direct appeal, we made no mention of the victim’s phone 

records. Maldonado, No. 1504 MDA 2016, at 9-11. This Court relied upon 

Hoover’s and Sell’s testimony, as well as the stipulation that the victim died 

of mixed toxicity. Id. (citing N.T., 8/3/2016, at 18-25, 68, 89-95, 105, 108). 

Thus, even without the victim’s telephone records, the evidence was sufficient 

for the jury to find Appellant guilty, and, therefore, Appellant cannot show 

that there was a reasonable probability of a different outcome and, hence, 

cannot demonstrate prejudice. Medina, 209 A.3d at 1000. Once again, 

without this one prong of the ineffectiveness test, the entire claim fails.

Finally, Appellant maintains that trial counsel had a conflict of interest, 

because counsel had “cross-examined Appellant in a previous case where 
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Appellant was a Commonwealth witness.” Appellant’s Brief at 12. “Because 

this case involves successive and not dual representation, appellant must 

demonstrate he was prejudiced by any potential conflict of interest.” 

Commonwealth v. Cousar, 154 A.3d 287, 310–11 (Pa. 2017). “Appellant 

avers that [t]rial [c]ounsel might have represented him more effectively had 

he not already had the opportunity to form an opinion about Appellant when 

he questioned him as a witness in a separate trial.” Appellant’s Brief at 14. 

However, Appellant fails to explain how trial counsel could have represented 

him more effectively, and all of the claims of ineffectiveness that we reviewed 

above were meritless. We therefore find that Appellant has failed to 

demonstrate that he was prejudiced by any potential conflict of interest, and 

this final issue merits no relief.

For the reasons given above, we conclude that Appellant’s issues raised 

on appeal are waived or meritless. Having discerned no error of law, we affirm 

the order below. See Medina, 209 A.3d at 996.

Order affirmed.

Judge Murray joins the Memorandum.

Judge Olson Concurs in the Result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/23/2020