J. S38012/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  v.                     :
                                         :
DONTEY EDWARDS,                          :          No. 2755 EDA 2015
                                         :
                       Appellant         :


               Appeal from the PCRA Order, August 28, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0006809-2009


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 09, 2016

     Dontey Edwards appeals from the order entered in the Court of

Common Pleas of Philadelphia County that dismissed his petition filed

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

(“PCRA”).

     The trial court set forth the facts of this case:

                  On December 31, 2008, in the early afternoon,
            Eldridge Wesley (“Wesley”) was outside with his
            cousin, Michael Walker (“Walker”), on the 1300 block
            of West Wishart Street. Malik Miles (“Miles”) yelled
            at Wesley from down the street and, in response,
            Wesley began to approach Miles. As the two men
            began to talk, Wesley told Walker to walk down the
            street away from where he and Miles were standing,
            and Walker complied. Miles and Wesley proceeded
            to get into a “heated argument” over who was
            allowed to be out on that particular block selling
            drugs.    While Miles and Wesley were arguing,
            Dontey Edwards (“Edwards”) was standing near
J. S38012/16


          Miles, but did not say anything to Wesley. In an
          attempt to end the conflict, Wesley “flagged” Miles
          and began walking away. As he looked back over his
          shoulder, Wesley saw Miles pull a black handgun
          from his pocket; Edwards had a black and chrome
          gun in his hand. Both Miles and Edwards began to
          shoot at Wesley. As Wesley began to run, he was
          shot in the leg and fell to the ground. Wesley kept
          moving on the ground, trying to seek cover, and was
          shot numerous times throughout his legs and
          abdomen.      As Walker heard the shots, he saw
          Edwards begin to shoot at him and he ran away from
          the direction of the gunfire. Walker then ran toward
          Wesley when he saw him lying in the street and
          Wesley stated “Malik shot me” before losing
          consciousness.

                 At approximately 1:00 p.m. Officers Sneed
          and Stallbaum were traveling northbound on
          13th Street while on their way to Temple Hospital.
          The officers were hailed by a male and a female who
          told them of a commotion just south of their location
          and as Officer Stallbaum was reversing the vehicle,
          they heard six (6) to eight (8) gunshots.        The
          officers drove in the direction of the gunshots and
          when they arrived at the 1300 block of West Wishart
          Street moments later they found approximately
          thirty people running and screaming. The officers
          found Wesley unconscious, lying face up on the
          ground, covered in blood, with multiple gunshot
          wounds. They placed Wesley in their vehicle and
          rushed him to the Temple Hospital emergency room.
          Walker got in his brother’s vehicle and began to
          drive to the hospital, but was stopped by
          Officers Ramos and Slobodian before he left the
          area. Officer Sneed stayed at the hospital until
          approximately 7:00 p.m., when a nurse provided
          him with a projectile that had been removed from
          Wesley’s body and gave him an update that Wesley
          was in critical but stable condition.

                Officers Waters and Frysiek responded to the
          radio call for a shooting on the 1300 block of
          West Wishart    Street.     They    received  flash


                                  -2-
J. S38012/16


          information for a “black male, medium build, wearing
          [a] greenish-brown hoodie [and] tan pants” whose
          name was Malik. The officers surveyed the area until
          an anonymous tip drew their attention to
          3133 Camac Street. They radioed their location and
          then Officer Waters secured the front of the property
          while Officer Frysiek went to secure the rear.
          Officer Waters testified that the property appeared to
          be abandoned, as the outside was rundown, the
          front door could not be secured, the upstairs
          windows were broken, and the interior, as seen
          through a front window, was completely dilapidated.
          Officer Waters observed a male matching the flash
          description inside the property and as soon as
          backup officers arrived, less than one minute later,
          they knocked and entered through the unsecured
          door. As they entered, a couple of males were
          running up the stairs. Officer Waters observed Miles
          toss a small baggie to the floor as he was running up
          the steps and Officer Waters detained Miles just
          before he reached the second floor. The officer
          brought Miles back downstairs and recovered the
          baggie, which contained an off-white chunky
          substance, alleged[ly] crack cocaine.

                 From the rear of the property, Officer Frysiek
          observed a black male, later identified as Edwards,
          perched from a second floor rear window.            The
          officer ordered him to stop, but Edwards jumped
          from the window.          Officer Frysiek radioed a
          description of Edwards as “black male, black hoodie,
          orange shirt, blue jeans, and I believe tan boots.”
          Officer Coulter was sitting in his vehicle in a
          perimeter position, when he observed the highway
          unit chasing a male, wearing a black hoodie, orange
          shirt, blue jeans and tan boots, on foot northbound
          up 12th Street. The officer proceeded northbound on
          12th Street in his vehicle, following the male until the
          male made a right hand turn into an alleyway.
          Officer Coulter exited his vehicle, pursued the male
          up the alleyway on foot, arrested the male, and then
          Officer Frysiek identified him as the male who had
          jumped from the window.



                                   -3-
J. S38012/16


                   Dr. Amy Goldberg is the Chief of Trauma and
            Surgical Critical Care at Temple University Hospital
            and she was qualified to testify as an expert in the
            field of medical trauma and critical care.
            Dr. Goldberg was one of many trauma surgeons who
            treated Wesley, upon his arrival at the hospital on
            December 31, 2008. Upon arrival, Wesley “had no
            blood pressure and was not breathing on his own
            and his heart rate was very, very slow.” Among
            other gunshot wounds, Wesley had been shot
            through the femoral artery in his right thigh and had
            lost a significant amount of blood. Dr. Goldberg
            testified that with such trauma he could have bled
            out “within minutes” and that if he had not received
            emergency treatment as soon as he did “he could
            have died.”     Wesley was also bleeding from his
            rectum as well as his anus and he had sustained
            severe injuries to his bladder, large bowel, and veins
            within his pelvis.     In addition to his abdominal
            injuries, Wesley suffered significant trauma to his leg
            bones, which required orthopedic surgeries to
            correct. Dr. Goldberg estimated that Wesley had
            undergone eighteen (18) separate surgeries in the
            course if [sic] his treatment at Temple University
            Hospital.

                   Officer Louis Grandizio, a fifteen year veteran
            of the Philadelphia police force, was qualified to
            testify as an expert in the field of ballistics and
            firearms identification. He explained the internal
            mechanism of a firearm, as well as the various
            components of a piece of ammunition, and he
            testified that he was able to match the eleven (11)
            fired cartridge casings that Detective Etsell had
            recovered from the scene to three different firearms.
            Officer Grandizio testified that there were eight (8)
            9 millimeter Lugers fired from one firearm, two (2)
            9 millimeter Lugers fired from a second firearm, and
            one (1) .32 automatic fired from a third firearm.

Trial court opinion, 4/28/11 at 3-7 (footnotes omitted).

      The PCRA court set forth the following procedural history:



                                     -4-
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                  Prior to trial, Edwards and his co-defendant
           Malik Miles presented a motion for the court to grant
           a continuance, a motion to appoint a medical expert
           for the defense, and a motion for recusal, all of
           which this court denied. On February 16, 2010,
           Edwards elected to exercise his right to a jury trial
           and pled not guilty to all charges on bill of
           information CP-51-CR-0006809-2009. At the close
           of the Commonwealth’s case-in-chief, Edwards made
           a motion for judgment of acquittal based on the
           evidence, which this court denied. On February 23,
           2010, the jury found Edwards and co-defendant
           Malik Miles guilty of Attempted Murder (F1),
           Aggravated Assault (F1), Criminal Conspiracy for
           Engaging in Aggravated Assault (“Conspiracy”) (F1),
           Carrying Firearms Without a License (“VUFA
           § 6106”) (F3), Possession of an Instrument of Crime
           (M1), and Recklessly Endangering Another Person
           (M2).[1] At the conclusion of the trial, the case was
           continued to April 30, 2010 for sentencing.          On
           April 30, 2010, this court sentenced Edwards to
           8.5-20 years of incarceration in a state facility for
           Attempted Murder (F1) and 1.5-3 years of
           incarceration in a state facility for Carrying Firearms
           Without a License (F3), to run consecutively. He
           received no further penalty on the remaining
           charges.

                 On May 20, 2010, Edwards filed a notice of
           appeal to the Superior Court of Pennsylvania and the
           Court affirmed his convictions and judgment of
           sentence on February 29, 2012. On December 21,
           2010, while his appeal was pending, Edwards filed a
           PCRA petition.    This court sent Edwards a 907
           Notice, pursuant to Pa.R.Crim.P. 907(1), on July 22,
           2011 and formally dismissed the petition on
           August 26, 2011.

                On October 29, 2012, Edwards filed the instant
           PCRA petition and on October 2, 2013, Edwards filed

1
  18 Pa.C.S.A. § 901(a), 18 Pa.C.S.A. § 2702(a), 18 Pa.C.S.A. § 903(a)(1),
18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 907(a), and 18 Pa.C.S.A. § 2705,
respectively.


                                    -5-
J. S38012/16


              a Partial Amendment to Post Conviction Relief
              Petition.   PCRA counsel was appointed and, on
              January 1, 2015, counsel filed an Amended PCRA
              Petition. On May 19, 2015, the Commonwealth filed
              a Motion to Dismiss and the matter was first listed
              before this Court for decision on July 31, 2015. On
              August 5, 2015, following a review of the record, this
              Court sent Edwards a 907 Notice, pursuant to
              Pa.R.Crim.P. 907(1). This court did not receive any
              response to the 907 Notice. On August 28, 2015[,]
              this court dismissed the PCRA petition.

PCRA court opinion, 9/18/15 at 1-2.

        Appellant raises the following issues for this court’s review:

              I.    Whether the judge was in error in denying the
                    Appellant’s    PCRA     petition    without   an
                    evidentiary hearing on the issues raised in the
                    amended      PCRA    petition    regarding  trial
                    counsel’s ineffectiveness[?]

              II.   Whether the Judge was in error in not granting
                    relief on the PCRA petition alleging counsel was
                    ineffective[?]

Appellant’s brief at 8.

        With respect to whether the PCRA court erred when it did not grant

relief on the PCRA petition that alleged trial and appellate counsel were

ineffective,2 the PCRA court has ably and thoroughly addressed these issues

in its opinion of September 18, 2015. This court will affirm on the basis of

that opinion.

        With respect to whether the PCRA court erred when it denied the

petition without conducting an evidentiary hearing, this court affirms.


2
    We have foregone the sequence of appellant’s arguments.


                                       -6-
J. S38012/16


     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.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.         Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).       We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.           Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).                 In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

                     [T]he right to an evidentiary hearing on
                     a post-conviction petition is not absolute.
                     Commonwealth v. Jordan, 772 A.2d
                     1011, 1014 (Pa.Super. 2001). It is within
                     the PCRA court’s discretion to decline to
                     hold a hearing if the petitioner’s claim is
                     patently frivolous and has no support
                     either in the record or other evidence.
                     Id.     It is the responsibility of the
                     reviewing court on appeal to examine
                     each issue raised in the PCRA petition in
                     light of the record certified before it in
                     order to determine if the PCRA court
                     erred in its determination that there
                     were no genuine issues of material fact
                     in controversy and in denying relief
                     without    conducting     an    evidentiary
                     hearing.          Commonwealth           v.
                     Hardcastle, 701 A.2d 541, 542-543 (Pa.
                     1997).

              Commonwealth v. Turetsky, 925 A.2d 876, 882
              (Pa.Super. 2007), appeal denied, 940 A.2d 365



                                        -7-
J. S38012/16


           (Pa. 2007) quoting Commonwealth v. Kalifah, 852
           A.2d 1238, 1239-1240 (Pa.Super. 2004).

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012).

     Here, the PCRA court determined from the record before it that the

issues raised by appellant lacked merit and that it had no need to conduct a

hearing and did not err when it declined to conduct a hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2016




                                    -8-
}:
                                                                            Circulated 08/25/2016 10:14 AM




               IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                          TRIAL DIVISION - CRIMINAL SECTION




      COMMONWEALTH OF PENNSYLVANIA

                   v.                                            CP-51-CR-0006809-2009

      DONTEY EDWARDS




                                               OPINION

            This Opinion is written in support of this court's August 28, 2015 dismissal of

     Dontey Edwards' PCRA petition.



     PROCEDURAL HISTORY

            Prior to trial, Edwards and his co-defendant Malik Miles presented a motion for

     the court to grant a continuance, a motion to appoint a medical expert for the defense,

     and a motion for recusal, all of which this court denied.   On February 16, 2010, Edwards

     elected to exercise his right to a jury trial and pied not guilty to all charges on bill of

     information CP-51-CR-0006809-2009.         At the close of the_Commonwealth's case-in-

     chief, Edwards made a motion for judgment of acquittal based on the evidence, which

     this court denied.   On February 23, 2010, the jury found Edwards and co-defendant

     Malik Mile3 guilty of Attempted Murder (F1),         Aggravated Assault (F1),        Criminal

     Conspiracy for Engaging in Aggravated Assault ("Conspiracy") (F1), Carrying Firearms

     Without a License ("VUFA § 6106") (F3), Possession of an Instrument of Crime (M1),
    I

I
I

I        and Recklessly Endangering Another Person (M2).          At the conclusion of the trial, the
i
         case was continued to April 30, 2010 for sentencing.        On April 30, 2010, this court

         sentenced Edwards to 8.5-20 years of incarceration in a state facility for Attempted

         Murder (F1) and 1.5-3 years of incarceration in a state facility for Carrying Firearms

        Without a License (F3), to run consecutively.      He received no further penalty on the

         remaining charges.

                On May 20, 2010, Edwards filed a notice of appeal to the Superior Court of

        Pennsylvania and the Court affirmed his convictions and judgment of sentence on

        February 29, 2012. On December 21, 2010, while his appeal was pending, Edwards

        filed a PCRA petition.    This court sent Edwards a 907 Notice, pursuant to Pa.R.Crim.P.

        907(1), on July 22, 2011 and formally dismissed the petition on August 26, 2011.

               On October 29, 2012, Edwards filed the instant PCRA petition and on October 2,

        2013, Edwards filed a Partial Amendment to Post Conviction Relief Petition.           PCRA

        counsel was appointed and, on January 1, 2015, counsel filed an Amended PCRA

        Petition. On May 19, 2015, the Commonwealth filed a Motion to Dismiss and the matter

        was first listed before this Court for decision on July 31, 2015.      On August 5, 2015,

        following a review of the record, this Court sent Edwards a 907 Notice, pursuant to

        Pa.R.Crim.P.   907(1 ).   This court did not receive any response to the 907 Notice.    On

        August 28, 2015 this court dismissed the PCRA petition.



        DISCUSSION

               The standard applied when reviewing an order dismissing a PCRA petition is

        whether the determination of the PCRA court is supported by the record evidence and is
         free of legal error.1 The PCRA court's factual determinations are entitled to deference,

         but its legal determinations are subject to plenary review. 2 The PCRA court's findings

         will not be disturbed unless there is no support for the findings in the certified record.'

                Pursuant to 42 Pa.C.S.         9545(b),     a PCRA petition,   including second and

         subsequent petitions, must be filed within one year of the date the judgment becomes

         final, unless the petition alleges and the petitioner proves that his claim(s) fall under any

         of the three enumerated exceptions to the one year requirement. These exceptions are

         interference by government officials4, facts unknown and not discoverable by due

         diligence5, and newly recognized constitutional rights that apply retroactively".             A

         petition claiming one of these exceptions must be filed within sixty (60) days of the time

         the claim could have been presented.7 Further, the Pennsylvania Supreme Court set

         forth in Commonwealthv. Fahl that "a claim of ineffective assistance of counsel does

         not save an otherwise untimely petition for review on the merits."

               In the instant matter, Edwards' PCRA petition was timely filed and, in conjunction

     with the Amended Petition, asserted claims of ineffective assistance of counsel. Upon

     review of the record, the petition, the Amended Petition, and the Commonwealth's

     Motion to Dismiss, this Court has determined that Edwards' claims are without merit.

               Under the Post-Conviction Relief Act, claims of ineffective assistance of counsel

     are evaluated pursuant to the three-prong test set forth by the Pennsylvania Supreme


     1
       Com. v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006).
     2
       Com. v. Hawkins, 894 A.2d 716, 722 (Pa. 2006).
     3
       Com. v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006).
     4
       42 Pa.C.S. 9545(b)(1 )(i).
     5
       42 Pa.C.S. 9545(b)(1)(ii).
     6
       42 Pa.C.S. 9545(b)(1 )(iii).
     7
       42 Pa.C.S. 9545(b)(2).
     8
       714 A.2d 214 (Pa. 1999).
     9
I      Id. at 223.
i


I
1·
 Court in Commonwealth v. Pierce", using the same standard as when such claims are

 raised on direct appeal."      Pierce established that ineffectiveness claims are measured

 by both counsel's performance and the prejudice suffered by the petitioner.12                The law

 presumes counsel to have been effective; thus, the petitioner bears the burden of

 establishing the following three prongs: first, that the ineffectiveness claim has arguable

 merit; second, that counsel's act or omission did not have a reasonable basis; and third,

 that the petitioner suffered prejudice on account of counsel's act or omission.13              If it is

 apparent that the prejudice prong has not been met, the first two prongs of the test need

 not be determined.14

        In assessing the Pierce prongs related to counsel's performance, counsel's error

or omission "must have so undermined the truth determining process that no reliable

adjudication of guilt or innocence could have taken place.?"               Counsel inherently has

broad discretion to determine the strategy employed, thus a review of counsel's act or

omission must determine whether counsel's decisions were reasonably designed to

benefit the client.16 A finding that a chosen strategy lacked a reasonable basis is not

warranted unless it can be concluded that an alternative not chosen offered a potential

for success substantially greater than the course actually pursued.17

       In assessing the prejudice prong of Pierce, the petitioner must prove that he

suffered prejudice on account of counsel's decisions. "Prejudice" can be described as

10
   527 A.2d 973 (Pa. 1987).
11
   Com. v. Kimball, 724 A.2d 326 (Pa. 1999).
12
   Com. v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
13
   Id.; see also Com. v. Breakiron, 729 A.2d 1088, 1101 (Pa. 1999).
14
   Com. v. Jones, 683 A.2d 1181, 1188 (Pa. 1996).
15
   Com. v. Hawkins, 894 A.2d 716, 722 (Pa. 2006) (citing Com. v. Allen, 732 A.2d 582, 587 n.15 (Pa.
1999).
16
   Com. v. Fowler, 670 A.2d 153, 155 (Pa. Super 1996); Com. v. Polston, 616 A.2d 669, 677 (Pa. Super
1992).
17
   Com. v. Howard, 719 A.2d 233, 237 (Pa. 1998).
     whether,      but for the arguably   ineffective   act or omission,   there   is a reasonable

     probability   that the outcome would have been different.18     In other words, the petitioner

     must establish that counsel's actions prejudiced him to such an extent that a reliable

     determination of guilt was not made at trial."



             A. Ineffectiveness claims againsttrial counsel

            i. Claim of counsel's ineffectiveness for failing to file a motion that the verdict was
            against the weight of the evidence

             Edwards' assertion that counsel was ineffective for failing to present a post-trial

 motion challenging          the weight of the evidence is meritless, as the weight of the

 evidence presented at trial more than supported the jury's verdict. Counsel cannot be

 deemed ineffective for failing to file a frivolous motion and any challenge to the weight of

 the evidence would have lacked merit. This Court's April 28, 2011 Opinion in Edwards'

 direct appeal summarized the evidence presented as follows:

                     On December 31, 2008, in the early afternoon, Eldridge Wesley
             ("Wesley") was outside with his cousin, Michael Walker ("Walker"), on the
             1300 block of West Wishart Street. Malik Miles ("Miles") yelled at Wesley
             from down the street and, in response, Wesley began to approach Miles.
             As the two men began to talk, Wesley told Walker to walk down the street,
             away from where he and Miles were standing, and Walker complied.
             Miles and Wesley proceeded to get into a "heated argument" over who
            was allowed to be out on that particular block-selling drugs.20 While Miles
            and Wesley were arguing, Dontey Edwards ("Edwards") was standing
            near Miles, but did not say anything to Wesley. In an attempt to end the
            conflict, Wesley "flagged" Miles and began walking away. 21 As he looked
            back over his shoulder, Wesley saw Miles pull a black handgun from his
            pocket; Edwards had a black and chrome gun in his hand. Both Miles and
            Edwards began to shoot at Wesley. As Wesley began to run, he was shot
            in the leg and fell to the ground. Wesley kept moving on the ground, trying

18
     Com. v. Kimball. 724 A.2d 326, 330 (Pa. 1999).
19
     Ccm. v. Lassen. 659 A.2d 999, 1011 (Pa. Super 1995).
20
     N.T. 2/16/2010 at 146:1-4.
21
     N.T. 2/16/2010 at 146:4-5, 152:6-9.
.        I




                          to seek cover, and was shot numerous times throughout his legs and
                          abdomen. As Walker heard the shots, he saw Edwards begin to shoot at
                          him and he ran away from the direction of the gunfire. Walker then ran
                         toward Wesley when he saw him lying in the street and Wesley stated
                          "Malik shot me" before losing consciousness.
                                 At approximately 1:00 p.m., Officers Sneed and Stallbaum were
                         traveling northbound on 13th Street while on their way to Temple Hospital.
                         The officers were hailed by a male and a female who told them of a
                         commotion just south of their location and as Officer Stallbaum was
                         reversing the vehicle, they heard six (6) to eight (8) gunshots. The officers
                         drove in the direction of the gunshots and when they arrived at the 1300
                         block of West Wishart Street moments later they found approximately
                         thirty people running and screaming.           The officers found Wesley
                         unconscious, lying face up on the ground, covered in blood, with multiple
                         gunshot wounds. They placed Wesley in their vehicle and rushed him to
                         the Temple Hospital emergency room. Walker got in his brother's vehicle
                         and began to drive to the hospital, but was stopped by Officers Ramos
                         and Slobodian before he left the area. Officer Sneed stayed at the
                         hospital until approximately 7:00 p.m., when a nurse provided him with a
                        projectile that had been removed from Wesley's body and gave him an
                        update that Wesley was in critical but stable condition.
                                 Officers Waters and Frysiek responded to the radio call for a
                        shooting on the 1300 block of West Wishart Street. They received flash
                        information for a "black male, medium build, wearing [a] greenish-brown
                        hoodie [and] tan pants" whose name was Malik.22 The officers surveyed
                       the area until an anonymous tip drew their attention to 3133 Camac
                       Street. They radioed their location and then Officer Waters secured the
                       front of the property while Officer Frysiek went to secure the rear. Officer
                       Waters testified that the property appeared to be abandoned, as the
                       outside was rundown, the front door could not be secured, the upstairs
                       windows were broken, and the interior, as seen through a front window,
                       was completely dilapidated. Officer Waters observed a male matching the
                       flash description inside the property and as soon as backup officers
                       arrived, less than one minute later, they knocked and entered through the
                       unsecured door. As they entered, a couple of. males were running up the
                       stairs. Officer Waters observed Miles toss a small baggie to the floor as
                       he was running up the steps and Officer Waters detained Miles just before
                       he reached the second floor. The officer brought Miles back downstairs
                       and recovered the baggie, which contained an off-white chunky
                       substance, alleged crack cocaine.
                                From the rear of the property, Officer Frysiek observed a black
                       male, later identified as Edwards, perched from a second floor rear
                       window. The officer ordered him to stop, but Edwards jumped from the
                       window. Officer Frysie!< radioed a description of Edwards as "black male,

     I       22
                  N.T. 2/18/2010 at 12:6-11.
    ·I
. !
 l

                    black hoodie, orange shirt, blue jeans, and I believe tan boots."23 Officer
                    Coulter was sitting in his vehicle in a perimeter position, when he
                    observed the highway unit chasing a male, wearing a black hoodie,
                    orange shirt, blue jeans and tan boots, on foot northbound up 1 ih Street.
                    The officer proceeded northbound on 1 ih Street in his vehicle, following
                   the male until the male made a right hand turn into an alleyway. Officer
                   Coulter exited his vehicle, pursued the male up the alleyway on foot,
                   arrested the male, and then Officer Frysiek identified him as the male who
                   had jumped from the window.
                           Dr. Amy Goldberg is the Chief of Trauma and Surgical Critical Care
                   at Temple University Hospital and she was qualified to testify as an expert
                   in the field of medical trauma and critical care. Dr. Goldberg was one of
                   many trauma surgeons who treated Wesley, upon his arrival at the
                   hospital on December 31, 2008. Upon arrival, Wesley "had no blood
                  pressure and was not breathing on his own and his heart rate was very,
                  very slow."24      Among other gunshot wounds, Wesley had been shot
                  through the femoral artery in his right thigh and had lost a significant
                  amount of blood. Dr. Goldberg testified that with such trauma he could
                  have bled out "within minutes" and that if he had not received emergency
                  treatment as soon as he did "he could have died."25 Wesley was also
                  bleeding from his rectum as well as his anus and he had sustained severe
                  injuries to his bladder, large bowel, and veins within his pelvis. In addition
                  to his abdominal injuries, Wesley suffered significant trauma to his leg
                  bones, which required orthopedic surgeries to correct. Dr. Goldberg
                  estimated that Wesley had undergone eighteen (18) separate surgeries in
                 the course if his treatment at Temple University Hospital.
                          Officer Louis Grandizio, a fifteen year veteran of the Philadelphia
                 police force, was qualified to testify as an expert in the field of ballistics
                 and firearms identification.     He explained the internal mechanism of a
                 firearm, as well as the various components of a piece of ammunition. and
                 he testified that he was able to match the eleven (11) fired cartridge
                 casings that Detective Etsell had recovered from the scene to three
                 different firearms. Officer Grandizio testified that there were eight (8) 9
                 millimeter Luge rs fired from one firearm, two (2) 9 millimeter Luge rs fired
                 from a second firearm, and one (1) .32 automatic fired from a third firearm.

      Accordingly, the weight of the evidence more than supported Edwards' convictions for

      Attempted Murder (F1), Aggr:wated Assault (F1), Conspiracy (F1). VUFA § 6106 (F3),

      Possession of an Instrument of Crime (M1), and Recklessly Endangering Another

      Person (M2) and . any challenge by counsel would have lacked merit.                   As such,

      23
           N.T. 2/18/2010 at 93:25; 94:26.
      2~
           N.T. 2/17/2010 at 19:14-16.
      25
           N.T. 2/17/2010 at 20:10-17.
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         .,  I




        11


                      Edwards' instant claim of ineffectiveness    does not satisfy the requisite prongs of Pierce

                  and must be dismissed.




                             ii. Claim of counsel's   ineffectiveness   for failing   to file a motion     to reconsider
                             sentence

                             Edwards' assertion that counsel was ineffective for failing to present a post-trial

                  motion for reconsideration       of sentence also must fail because Edwards has not made

                  the requisite       showing   of actual prejudice.     This    Court sentenced         Edwards   to an

                  aggregate sentence of 10-23 years of incarceration            in a state facility, which represents

                  a lower end guideline sentence and, as such, this Court would not have reconsidered its

                  sentence.       On the charge of Attempted Murder, the guidelines with the deadly weapon

                  enhancement         were 8.5 years to the statutory limit and on the charge of VUFA § 6106

                 the guidelines       were 18-30 +/- 12 months. Accordingly,          this Court imposed a lower end

                 guideline      sentence on both charges and imposed no further penalty on the remaining

                 charges. This sentence reflected this Court's assessments                of the evidence presented

                 during the trial, as stated by this Court at the sentencing hearing:

                            I have taken a very close look at the presentence report, the guidelines, as
                           well as the circumstances of the crime itself, I sat through the trial. I am
                           going to apply the deadly weapon enhancement. I am going from those
                           guidelines. However, I am not, in this case with·this defendant, going to do
                           the statutory max, because I believe that the guidelines are appropriate.
                           The standard guidelines are appropriate for this defendant with the deadly
                           weapon enhancement used as being the guidelines.
                           I believe that his age, the nature of the crime, the fact that there were two
    I                      shooters the way I heard it that there is absolutely no question that there

I                          were two shooters and the jury found that to be the case. But at all times
                           the victim, right from the beginning ider.tified Malik, anc I do think that Mr.
                           Miles is considered in a much different light that perhaps the guidelines
I                          might not be appropriate for Miles, but for Mr. Edwards I believe they are
                                         26
                           appropriate.

                 26
                      N.T. 4/30/2010 at 9-10.
 As such,     Edwards    cannot    show that he suffered       actual   prejudice       on account of

 counsel's   failure to file a motion for reconsideration   of sentence      and,    consequently,   his

 claim in the instant petition does not warrant relief.




        iii. Claim of counsel's ineffectiveness for failing to object to Edwards being tried
        on the charge of Possession of an Instrument of Crime

        Edwards'    assertion   that counsel   was ineffective for failing    to object to Edwards

 being tried on the charge of Possession of an Instrument         of Crime is meritless and finds

 no support in the record.      While Edwards avers that the Possession             of an Instrument of

 Crime charge was withdrawn at the preliminary hearing, the record belies this averment.

 The transcript from the preliminary    hearing provides the following:

       THE COURT: What about the possession charge?
       DISTRICT ATTORNEY: I am not worried about it, Your Honor. I'll
       withdraw it.
       THE COURT: All right then. Malik Miles and Dontey Edwards, this Court
       finds that a prima fascie case has been made out against you on all
       charges except for possession. You're held for court to be at the Criminal
       Justice Center-

However, the docket sheet of co-defendant Malik Miles illustrates that, in addition to the

charges presented to the jury in the instant case with Edwards, Miles had also been

· charged with Knowing and Intentional Possession of a Controlled Substance and it was

this "possession charge" against Miles that was withdrawn at the preliminary hearing.

As such, Edwards claim lacks merit and must be dismissed.
. I
  ·'
 .!


                iv. Claim of counsel's   ineffectiveness for failing                     to     object   to    the
                Commonwealth amending the attempted murder charge

                Edwards' assertion that counsel was ineffective for failing to object to the

        Commonwealth's amendment of the Attempted Murder charge is also meritless and

        similarly finds no support in the record.27          Prior to trial, the district attorney sought an

        amendment to the bills of co-defendant Malik Miles to include the charge of Attempted

        Murder that had been erroneously             omitted following the preliminary hearing.               This

        amendment was entirely proper; however, it is not relevant to the instant petition

        because it was solely related to the case of co-defendant Miles.               Accordingly, Edwards'

        claim warrants no relief.



               B. Ineffectiveness claims against appellate counsel

               i. Claim of counsel's ineffectiveness for causing two issues to be deemed waived
               by the Superior Court on direct appeal

               In his petition,   Edwards asserts that counsel caused two issues to be deemed

       waived on direct appeal.         The first issue was the Commonwealth's                alleged failure to

       notify Edwards of its intent to pursue a theory of accomplice liability and the second

       issue was this Court's alleged addition of the accomplice charge in its instructions to the

       jury.   While counsel's failure to properly raise these issues in the 1925(b) statement

       resulted in the issues being waived, the issues themselves lack merit and would not

       have been meritorious on appeal and, as such, Edwards' claim does not warrant relief.

               Edwards' claim related to the notification of the theory of accomplice liability is

       wholly unsupported by the record.           While Edwards was not specifically charged with

       27
          This Court notes that although this issue was addressed on direct appeal, further review of the record
       shows that counsel's objection at trial was not made on behalf of both defendants, as the Commonwealth
       did not need to amend Edwards' bills of information.
     ,1

               being an accomplice, this Court was not precluded from giving the jury an instruction on

     ;I        accomplice liability. The Supreme Court of Pennsylvania has held that a defendant may

               be convicted as an accomplice even though he was only charged as a principal."                     The

               Court explained that "[a]s long as the defendant is put on notice that the Commonwealth

           may pursue theories of liability that link the defendant and another in commission of

           crimes, the defendant cannot claim that the Commonwealth's pursuit of such a theory

           surprised and prejudiced the defendant."29 In the instant case, Edwards and his co-

           defendant were charged with Conspiracy in the case and thus, Edwards had more than

           adequate notice that the Commonwealth might pursue a theory of liability linking him

           with another in the commission of the crimes. While accomplice liability is not the same

           as conspiratorial liability, the requirements for establishing guilt via accomplice liability
                                                                                                                      30
           coincide with the requirements                of establishing guilt   via   conspiratorial    liability.

          Accordingly, Edwards' claim, even if not waived, would not have been meritorious on

          direct appeal.

                     Edwards' claim related to this Court's alleged addition of the accomplice charge

          in its instructions to the jury also finds no support in the record. This Court previously

          addressed this claim in its April 28, 2011 Opinion on direct appeal, stating:

                           Edwards claims that this court introduced a new charge to the jury
                     while addressing the jury's question about the court's instruction on
                     conspiracy. This claim has no merit. On February 22, 2010, the jury
                     submitted the following question:
                           Is the criminal conspiracy charge related to a certain criminal
                           act, (i.e., attempted murder) or just in general? Can we see
                           the charge or definition for criminal conspiracy?"

          28
               Com. v. Spotz, 716 A.2d 580 (Pa. 1988).
          29   Id.
          30
             Compare 18 Pa.C.S. §306(c) (defining accomplice liability) and 18 Pa.C.S. § 903 (defining crime of
          conspiracy).
          3t
             N. T. 2/22/2010 at 81 :23-25; 82: 1-2 .


.!
. I
  ,

                 In accordance with the bill of information on which Edwards was
                 arraigned, this court established for counsel that it would re-read the
                 charges against Edwards as well as re-read the instruction on liability for
                 the conduct of another person or persons. This court formulated the exact
                 response to be given to the jury, and in the process of doing so, this court
                 stated "attempted murder in the first degree" numerous times.            No
                 objection to this phrase was made by any party until after this court had
                 given the following response to the jury:
                         The defendants in this case, Malik Miles and Dontey
                         Edwards, are on trial before you charged with attempted
                         murder in the first degree, aggravated assault, criminal
                         conspiracy to commit assault, carrying a firearm without a
                         license, possession of instrument of crime with the intent to
                         employ it criminally, and recklessly endangering another
                         person. Now, there are two basic ways a defendant may be
                         criminally responsible for the conduct committed by another
                         person or persons. [ ... ]32
                Regardless of the objection, Edwards suffered no prejudice on account of
                the phrase "attempted murder in the first degree." The Advisory
                Committee Note for Pennsylvania Suggested Standard Criminal Jury
                Instruction 12.901A.1 states:
                        The courts have decided that the only degree of murder that
                         may be subject to an attempt charge is murder in the first
                        degree. A defendant must specifically intend that death
                        result for an attempted homicide to be complete. The death
                        in lesser grades of murder may occur as an unintended
                        result of otherwise criminal conduct; it is, thus, logically
                        impossible for one to be able to attempt to commit second-
                        or third-degree murder.33
                Therefore, this court's reference to "first degree" was not an additional
                charge against Edwards nor did it cause him prejudice at trial.

         Accordingly, Edwards' claim, even if not waived, would not have been meritorious on

      ··· direct appeal. ·




        :s2 N.T. 2/22/2010 at 86:1-11.
        33
            Pa. SSJI (Crim) 12.901A.1  (citing Com. v. Geathers, 847 A.2d 730 (Pa.Super.   2004); Com. v. Clinger,
 .I     833 A.2d 792, 796 (Pa.Super. 2003); Com. v. Williams, 730 A.2d 507 (Pa.Super.       1999); Com. v. Griffin,
        456 A.2d 171 (Pa.Super. 1983)).
. I

        ,

                      ii. Claim of counsel's ineffectiveness for failing to challenge this Court's denial of
        ·I            the request for a mistrial on direct appeal
        I             Edwards' final assertion is that his counsel was ineffective for failing to raise the
        I     issue of this Court denying his request for a mistrial based upon the prosecutor's

              remarks during closing arguments that he "had a gun and shot the victim" and that "the

              shooting was over drugs. "34 While Edwards has failed to properly present this claim

              with direct references to the transcript, as the closing arguments were not transcribed,

              this Court will address the claim based upon the alleged remarks contained in the

              Amended Petition.        In Commonwealth v. Judy,35 the Pennsylvania Superior Court

              opined that

                      [i]t is well settled that a prosecutor has considerable latitude during closing
                      arguments and his arguments are fair if they are supported by the
                      evidence or use inferences that can reasonably be derived from the
                     evidence. Further, prosecutorial misconduct does not take place unless
                     the unavoidable effect of the comments at issue was to prejudice the
                     jurors by forming in their minds a fixed bias and hostility toward the
                     defendant, thus impeding their ability to weigh the evidence objectively
                     and render a true verdict. "36

             The Court further stated that "comments made by a prosecutor must be examined

             within the context of defense counsel's conduct. It is well settled that the prosecutor may

             fairly respond to points made in the defense closing."37

                     In the instant case, the evidence presented at trial through the testimony of

             Eldridge Wesley and Michael Walker established that:

                     [o]n December 31, 2008, in the early afternoon, Eldridge Wesley
                     ("Wesley") was outside with his cousin, Michael Walker ("Walker''), on the
                     1300 block of West Wishart Street. Malik Miles ("Miles") yelled at Wesley

             34
                January 1, 2015 Amended Petition, page 16.
             35
                978 A.2d 1015 (Pa. Super. 2009).
             35
                td. at 1020 (citing Com. v. Holley, 945 A.2d 241, 250 (Pa. Super 2008)).
             37
                Com. v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (citing Com. v. Chmiel, 889 A.2d 501, 544 (Pa.
    I
             2005}}.
)j


!I
1
. I




      I               from down the street and, in response, Wesley began to approach Miles.
                     As the two men began to talk, Wesley told Walker to walk down the street,
                      away from where he and Miles were standing, and Walker complied.
 ·I                   Miles and Wesley proceeded to get into a "heated argument" over who
                     was allowed to be out on that particular block selling drugs. 38 While Miles
                     and Wesley were arguing, Oontey Edwards ("Edwards") was standing
                     near Miles, but did not say anything to Wesley. In an attempt to end the
                     conflict, Wesley "flagged" Miles and began walking away.39 As he looked
                     back over his shoulder, Wesley saw Miles pull a black handgun from his
                     pocket; Edwards had a black and chrome gun in his hand. Both Miles and
                     Edwards began to shoot at Wesley. As Wesley began to run, he was shot
                     in the leg and fell to the ground. Wesley kept moving on the ground, trying
                     to seek cover, and was shot numerous times throughout his legs and
                     abdomen. As Walker heard the shots, he saw Edwards begin to shoot at
                     him and he ran away from the direction of the gunfire. Walker then ran
                     toward Wesley when he saw him lying in the street and Wesley stated
                     "Malik shot me" before losing consciousness."

           This evidence more than supports the prosecutor's alleged remarks that Edwards "had

           a gun and shot the victim" and that "the shooting was over drugs." As such, this Court's

           denial of counsel's request for a mistrial was entirely proper and would not have been a

           meritorious claim on direct appeal; consequently, Edwards' claim of ineffectiveness

          must fail.



          CONCLUSION

                     Based upon this Court's independent review of the record, the petition, the

          Amended Petition, and the Commonwealth's Motion to Dismiss, this Court concludes

          that Edwards' claims of ineffective assistance of counsel lack




          38
               N.T. 2/16/2010 at 146:1·4.
          39
               N.T. 2/16/2010 at 146:4·5; 152:6-9.
          40
               See April 28, 2011 Opinion.
      I

      I
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