J-S25031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

OMAR BRADLEY

                            Appellant               No. 1339 WDA 2015


                  Appeal from the PCRA Order August 25, 2015
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012296-2010


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED APRIL 4, 2016

        Omar Bradley (“Appellant”), appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

        On January 21, 2011, a jury found Appellant guilty of first-degree

murder1 and carrying a firearm without a license2 following a shooting that

occurred on August 20, 2010. On April 18, 2011, the trial court imposed a

life sentence on the murder conviction and a concurrent term of three to six

years’ incarceration for the firearms conviction.       This Court affirmed

Appellant’s judgment of sentence on March 4, 2013. See Commonwealth

____________________________________________


1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 6106(a)(1).
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v. Bradley, 1587 WDA 2011 (unpublished memorandum).                     Our Supreme

Court denied Appellant’s petition for allowance of appeal on November 6,

2013.    See Order, Commonwealth v. Bradley, 170 WAL 2013 (Pa. filed

November 6, 2013).

        On August 13, 2014, Appellant filed a pro se PCRA petition alleging

ineffective assistance of counsel based on trial counsel’s alleged failure to

(1)    present    expert    testimony      regarding      eyewitness   testimony   and

identifications, (2) present an alibi defense, and (3) present expert

testimony     regarding the       ballistics   evidence    recovered at   the   scene.

Appointed counsel filed an amended petition on March 18, 2015, raising the

ineffective assistance of counsel claims based on counsel’s alleged (1) failure

to object to statements made by the prosecutor regarding ballistics evidence

found at the crime scene, and (2) failure to investigate the potential of, or to

otherwise call, certain individuals as defense witnesses. The Commonwealth

filed a response and a supplemental response to the PCRA petition on July 2,

2015 and July 8, 2015, respectively. On July 20, 2015, the PCRA court filed

a notice of intent to dismiss the PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907, and on August 25, 2015, the court dismissed the petition.

Appellant filed a timely notice of appeal on August 28, 2015.3



____________________________________________


3
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.




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       In his appellate brief, Appellant claims trial counsel “was clearly

ineffective for failing to investigate and call other possible eyewitnesses who

were identifiable to trial counsel prior to the start of trial.” Appellant’s Brief,

p. 15.4 We disagree.

       Our standard of review is well-settled.      “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).

“The PCRA court’s findings will not be disturbed unless there is no support
____________________________________________


4
 Appellant’s Statement of the Questions Involved lists two questions, stated
as follows:

       I. WHETHER APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE,
       WHICH IN THE CIRCUMSTANCES OF THE PARTICULAR CASE, SO
       UNDERMINED THE TRUTH-DETERMINING PROCESS THAT NO
       RELIABLE ADJUDICATION OF GUILT OR INNOCENCE COULD
       HAVE TAKEN PLACE.

       II. WHETHER THERE WAS A VIOLATION OF THE CONSTITUTION
       OF THIS COMMONWEALTH OR THE CONSTITUTION OF THE
       UNITED STATES WHICH, IN THE CIRCUMSTANCES OF THE
       PARTICULAR CASE, SO UNDERMINED THE TRUTH-DETERMINING
       PROCESS THAT NO RELIABLE ADJUDICATION OF GUILT OF [sic]
       INNOCENCE COULD HAVE TAKEN PLACE.

Appellant’s Brief, p. 4. These questions do nothing more than state certain
PCRA eligibility for relief requirements, and they are accordingly insufficient.
See 42 Pa.C.S. §§ 9543(a)(2)(i) and 9543(a)(2)(ii); see also Pa.R.A.P.
2116. However, because the body of Appellant’s brief makes clear that he
argues an ineffective assistance of counsel claim based on a failure to call
certain identified witnesses, our review is not hampered by Appellant’s
deficient Statement of the Questions Involved, and we will not find the claim
waived. See Appellant’s Brief, pp. 14-19.



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for the findings in the certified record.”           Commonwealth v. Barndt, 74

A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations

omitted). “The scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the

prevailing party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294,

311 (Pa.2014) (citation omitted).              “It is well-settled that a PCRA court’s

credibility determinations are binding upon an appellate court so long as

they are supported by the record.” Commonwealth v. Robinson, 82 A.3d

998, 1013 (Pa.2013) (citation omitted).              However, this Court reviews the

PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d

1080, 1084 (Pa.Super.2014) (citation omitted).

       Pennsylvania courts apply the Pierce5 test to review PCRA claims of

ineffective assistance of counsel:

       When a petitioner alleges trial counsel’s ineffectiveness in a
       PCRA petition, he must prove by a preponderance of the
       evidence that his conviction or sentence resulted from ineffective
       assistance of counsel which, in the circumstances of the
       particular case, so undermined the truth-determining process
       that no reliable adjudication of guilt or innocence could have
       taken place. We have interpreted this provision in the PCRA to
       mean that the petitioner must show: (1) that his claim of
       counsel’s ineffectiveness has merit; (2) that counsel had no
       reasonable strategic basis for his action or inaction; and (3) that
       the error of counsel prejudiced the petitioner-i.e., that there is a
       reasonable probability that, but for the error of counsel, the
       outcome of the proceeding would have been different. We

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5
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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     presume that counsel is effective, and it is the burden of
     Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).        The petitioner bears the burden of

proving all three prongs of this test.     Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).          “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

            [I]n the particular context of the alleged failure to call
     witnesses, counsel will not be deemed ineffective unless the
     PCRA petitioner demonstrates: (1) the witness existed; (2) the
     witness was available; (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 was so prejudicial to petitioner to have denied him or
     her a fair trial.

Commonwealth v. Miner, 44 A.3d 684, 687 (Pa.Super.2012); see also

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa.2009) (quoting

Commonwealth         v.   Washington,      927   A.2d    586,   599      (Pa.2007)).

“Moreover,    [the   petitioner]   must   show   how    the   uncalled    witnesses’

testimony would have been beneficial under the circumstances of the case.”

Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa.2008).

     Here, Appellant specifically argues:

     Mr. Tyler Scott and Ms. Marisa Schellman[] were identified as
     possible eyewitnesses on August 20, 2010; however, there are
     no police reports indicating any statements were taken from



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       either of them, nor is there any evidence that trial counsel
       attempted to contact either of these individuals.

Amended PCRA Petition, p. 14; see also Appellant’s Brief, p. 15. Appellant

argues that trial counsel was ineffective for failing to determine whether

either of these two individuals would have provided exculpatory testimony, if

called to the stand.       See Amended PCRA Petition, pp. 14-16.          However,

Appellant does not allege either individual was available or willing to testify

in this matter. See Amended Petition, pp. 14-16. Further, Appellant does

not provide a statement or affidavit from either possible witness or

otherwise outline their expected testimony to allow the PCRA court to

determine whether the absence of the witnesses’ testimony prejudiced

Appellant.6    As a result, Appellant has failed to illustrate three of the five

requirements proving ineffectiveness for a failure to call a witness claim: the

witness’ availability, the witness’ willingness to testify, and why the absence

of   the   testimony     prejudiced     Appellant.7   As   a   result,   Appellant’s

ineffectiveness claim fails. See Miner, supra.
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6
  We note Appellant’s inclusion of an affidavit from his mother as illustrative
of Appellant’s understanding of how he could have fulfilled such a
requirement. See Affidavit of Banisha Berry, attached to Appellant’s original
pro se PCRA Petition.
7
    We appreciate Appellant’s argument that trial counsel’s deficient
stewardship occasioned his lack of knowledge as to whether the witnesses
were available and willing to testify. See Amended PCRA Petition, pp. 14-
16; Appellant’s Brief, p. 14. However, this argument does not excuse the
PCRA’s requirement that Appellant plead and prove the witnesses’
willingness and ability to testify, as well as how the lack of such testimony
(Footnote Continued Next Page)


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      Order affirmed.8



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2016




                       _______________________
(Footnote Continued)

prejudiced Appellant, to be eligible for relief on his claim that counsel was
ineffective for failing to call certain witnesses. See Appellant’s Brief, p. 17;
see also Miner, supra.
8
   The Commonwealth’s brief also addresses a “further claim” that trial
counsel was ineffective for advising Appellant to plead guilty prior to trial.
Commonwealth’s Brief, p. 14. Appellant did not raise or develop such a
claim in his appellate brief. Accordingly, even if Appellant raised it in his
previous filings, Appellant waived this claim. See Commonwealth v.
Spotz, 18 A.3d 244 (Pa.2011) (claim unreviewable and waived for lack of
development where, in his brief, appellant did not develop the claim factually
or legally, did not support it with citations, and the court could not discern
what error allegedly occurred).



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