Com. v. Adams, C.

Opinion

J-S03009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER ADAMS : : Appellant : No. 951 EDA 2022

Appeal from the PCRA Order Entered March 4, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004313-2009

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 22, 2023

Christopher Adams appeals from the order dismissing his petition

pursuant to the Post Conviction Relief Act (“PCRA”). Appellant’s counsel, Gary

Server, Esquire, has filed a petition to withdraw and brief pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). We affirm and grant

counsel’s petition to withdraw.

Appellant was convicted by a jury of first-degree murder in 2012 for the

shooting death of Korey Anderson. Briefly, the evidence presented at trial

established that Appellant believed Mr. Anderson’s friend had shot Appellant’s

friend. As a result, Appellant told Kenyon Childs on the evening of July 22,

2008, that he was going to “deal with” Mr. Anderson. Five minutes later,

Appellant walked directly toward Mr. Anderson, who was sitting in a chair on

a street corner in Philadelphia, “and shot him in the head. Mr. Anderson fell J-S03009-23

to the ground and Appellant stood over him and continued to shoot him

repeatedly. Appellant then fled[.]” Commonwealth v. Adams, 108 A.3d

107 (Pa.Super. 2014) (unpublished memorandum at 2) (cleaned up). Later

that evening, Appellant told Mr. Childs that he had shot Mr. Anderson. Two

eyewitnesses identified Appellant as the shooter in statements to the police

shortly after the shooting, but both individuals recanted their identifications

at trial.1

Following Appellant’s conviction, the trial court imposed the mandatory

sentence of life imprisonment without parole and denied Appellant’s post-

sentence motions. On direct appeal, this Court affirmed his judgment of

sentence. See id. Appellant did not timely file a petition for allowance of

appeal (“PAA”) with our Supreme Court. After his right to file a PAA nunc pro

tunc was reinstated, Appellant filed a PAA, which our Supreme Court denied.

See Commonwealth v. Adams, 145 A.3d 722 (Pa. 2016). Of particular

relevance to the instant appeal, we note that Bobby Hoof, Esquire,

represented Appellant throughout the aforementioned proceedings.

The PCRA petition that is the subject of this appeal was timely filed by

Appellant pro se. Appellant raised three claims of ineffective assistance of

counsel against Attorney Hoof, namely: (1) failing to investigate potential

eyewitness Michael Harris; (2) failing to request a cautionary eyewitness jury

____________________________________________

1 This recitation of the evidence established at trial is based upon Appellant’s second jury trial for the murder of Mr. Anderson. The jury was unable to reach a unanimous decision at the conclusion of the first trial.

-2- J-S03009-23

instruction pursuant to Commonwealth v. Kloiber, 106 A.2d 820 (Pa.

1954); and (3) erroneously advising Appellant that his juvenile firearms

adjudication would be admissible as impeachment evidence if he testified.

See Pro Se PCRA Petition, 5/2/17, at 2-3. Appellant attached a letter from

Mr. Harris, dated January 7, 2016, wherein Mr. Harris stated that he was

present at the shooting and that Appellant was not the individual who shot

and killed Mr. Anderson.

The PCRA court appointed new counsel, who filed an amended petition

raising an additional claim of after-discovered evidence pertaining to Mr.

Harris’s letter. See Amended PCRA Petition, 4/10/18, at 3. Appellant’s first

PCRA counsel passed away and, ultimately, Attorney Server was appointed

and filed a supplemental petition reasserting Appellant’s three original

ineffectiveness claims.2 See Supplemental PCRA Petition, 12/31/19, at 2.

Subsequently, Attorney Server submitted a certification from Mr. Harris

attesting to the truthfulness of the contents of the January 7, 2016 letter.

See Certification, 5/28/21.

After a significant delay due to the COVID-19 pandemic, the PCRA court

held an evidentiary hearing on the after-discovered evidence claim, as well as

the alleged ineffective assistance of Attorney Hoof for failing to call Mr. Harris ____________________________________________

2 While it is unclear from our review of the certified record whether this supplemental petition was filed with leave of court, since the PCRA court did not strike the supplement and in fact considered the merits of the claims raised therein, we deem the PCRA court to have implicitly granted leave to file the supplement. See Commonwealth v. Brown, 141 A.3d 491, 503-04 (Pa.Super. 2016).

-3- J-S03009-23

as a witness and advising Appellant that he could be impeached with his

juvenile adjudication. In that regard, the court heard testimony from

Appellant, Attorney Hoof, and Mr. Harris. At the conclusion of the hearing,

the PCRA court denied Appellant’s PCRA petition.3

This timely filed appeal followed. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925. As noted, Attorney Server has filed a

Turner/Finley brief and motion to withdraw as counsel. Although counsel

notified Appellant of these filings, he has not responded. Attorney Server’s

brief presents the following issue for our consideration:

Whether the PCRA court erred when it dismissed the petition where the Appellant provided that trial counsel was ineffective for misadvising the Appellant about the effect of [his juvenile] conviction upon the Appellant’s ability to testify at trial and where counsel failed to locate, to interview and to call to testify an after ____________________________________________

3 The PCRA court dismissed Appellant’s ineffectiveness claim pertaining to Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954) without a hearing. As the PCRA court held a hearing on the remaining claims, Rule 907 notice was not required prior to dismissal if Appellant “had ample notice and ample opportunity to set forth the material facts that, in his view, remained at issue and accordingly justified an evidentiary hearing.” Commonwealth v. Hutchinson, 25 A.3d 277, 322 (Pa. 2011). Instantly, the court’s decision to dismiss the Kloiber claim without a hearing was not specifically discussed in any pre-hearing order of court, on the record at the hearing, or in the order dismissing Appellant’s PCRA petition. Therefore, the record before us does not establish whether Appellant had ample notice and opportunity with respect to the court’s dismissal of his Kloiber claim without a hearing. We need not explore this quandary further, however, because Appellant waived his Kloiber issue on appeal by failing to include it in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii); see also Turner/Finley brief at 8 n.* (acknowledging that “counsel inadvertently neglected to raise the Kloiber claim” in Appellant’s Rule 1925(b) statement). Thus, we agree with counsel that there is no merit to the Kloiber claim on appeal, albeit on different grounds.

-4- J-S03009-23

acquired witness, whom counsel should have known about, Michael Harris?

Turner/Finley brief at 6 (capitalization altered).

Since Attorney Server filed a petition to withdraw pursuant to

Turner/Finley, we must first address counsel’s compliance with the attendant

procedural requirements:

Counsel petitioning to withdraw from PCRA representation . . . must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/Finley, the court—trial court or this Court—must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa.Super. 2016) (cleaned

up).

Upon review, we conclude that counsel has satisfied these technical

requirements. Therefore, we now turn to our own merits review to determine

whether the PCRA court erred in dismissing Appellant’s PCRA petition. We do

so mindful of our well-settled standard of review:

When reviewing the propriety of an order pertaining to PCRA relief, we consider the record in the light most favorable to the prevailing party at the PCRA level. This Court is limited to

-5- J-S03009-23

determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. We grant great deference to the PCRA court’s findings that are supported in the record and will not disturb them unless they have no support in the certified record. However we afford no such deference to the post-conviction court’s legal conclusions. We thus apply a de novo standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Mojica, 242 A.3d 949, 953 (Pa.Super. 2020) (cleaned

Appellant’s PCRA claims all implicate the effective assistance of Attorney

Hoof. Thus, our review is also guided by the following principles. “When

reviewing claims of ineffective assistance of counsel, courts must presume

that counsel provided effective assistance.” Id. at 955 (cleaned up). In order

to overcome this presumption, a petitioner must “plead and prove that (1) the

claim has arguable merit; (2) counsel lacked any reasonable basis for the

action or inaction; and (3) the petitioner suffered prejudice as a result.” Id.

(cleaned up). “Failure to satisfy any prong of the test will result in rejection

of the appellant’s ineffective assistance of counsel claim.” Id. (cleaned up).

Appellant’s proposed argument is two-fold: the PCRA court erred in

dismissing Appellant’s PCRA petition because Attorney Hoof was ineffective for

advising Appellant that his juvenile adjudication could be used to impeach him

if he testified and failing to call Mr. Harris as a witness.4 See Turner/Finley

brief at 25-29. We begin with the principles surrounding a PCRA claim that a ____________________________________________

4 Counsel also addresses the PCRA court’s dismissal of Appellant’s Kloiber claim, concluding that it lacks merit. See Turner/Finley brief at 18-25. As noted, this claim is waived on appeal because it was not included in Appellant’s Rule 1925(b) statement.

-6- J-S03009-23

petitioner waived his right to testify at trial based upon the erroneous advice

of counsel. In considering whether a petitioner was prejudiced by counsel’s

ineffectiveness, the question is “whether the result of the waiver

proceeding would have been different absent counsel’s ineffectiveness, not

whether the outcome of the trial itself would have been more favorable had

the defendant taken the stand.” Commonwealth v. Washington, 269 A.3d

1255, 1264 (Pa.Super. 2022) (en banc) (cleaned up).

At the evidentiary hearing, Attorney Hoof and Appellant offered

diametrically opposed testimony with respect to Appellant’s decision not to

testify. According to Attorney Hoof, Appellant never indicated that he wanted

to testify. Moreover, he maintained that he told Appellant that the juvenile

firearms adjudication would not be admissible at trial. See N.T., 3/4/22, at

16-18. After discussing the evidence that would be presented to the jury,

Attorney Hoof testified that he and Appellant strategized and decided that

Appellant would not testify. Id. at 17.

Contrarily, Appellant averred that he wanted to take the stand to

present an alibi defense but Attorney Hoof “repeatedly told [him] that if [he]

testified that [he] would be impeached due to [his] juvenile gun conviction[.]”

Id. at 50; see also id. at 51, 53. Appellant claimed that he only elected not

to testify because he did not want the jury to see him as someone who carries

guns. Id. at 52, 63.

The PCRA court credited the testimony of Attorney Hoof that he knew

the juvenile adjudication would not be admissible and, as a result, found

-7- J-S03009-23

Appellant’s testimony that Attorney Hoof advised him otherwise to not be

credible. See N.T., 3/4/22, at 119. The PCRA court explained in its Rule

1925(a) opinion that “[b]ecause the court found as a fact that [Attorney] Hoof

did not give misinformation to [Appellant], the court held that there was no

basis for [Appellant’s] claim that he received ineffective assistance of counsel

in connection with his decision to waive his right to testify.” PCRA Court

Opinion, 6/8/22, at 7 (cleaned up).

The PCRA court’s credibility determinations and findings of fact are

supported by the record. Essentially, Appellant’s claim is a challenge to the

PCRA court’s credibility determinations. This Court is bound by the PCRA

court’s credibility determinations where, as here, they are supported by the

record. See Mojica, supra at 956 (related to findings or credibility

determinations). Accordingly, we conclude that the PCRA court did not err in

denying this claim.

Turning to Attorney Hoof’s alleged ineffectiveness for failing to call Mr.

Harris as a witness at Appellant’s jury trial, we note that we are guided by the

following principles. To prove arguable merit for a claim that counsel was

ineffective for not calling a witness at trial, a petitioner must establish (1) the

existence and availability of the witness; (2) that counsel was aware of the

witness, (3) the witness was willing and able to testify on the petitioner’s

behalf, and (4) the petitioner was prejudiced by the absence of the proposed

testimony. See Commonwealth v. Gibson, 951 A.2d 1110, 1133 (Pa.

2008). Further, the petitioner must demonstrate that the witness’s

-8- J-S03009-23

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

Id. at 1134 (cleaned up).

In the case sub judice, the PCRA court heard testimony as to this issue

from Attorney Hoof and Mr. Harris. Attorney Hoof testified that he saw Mr.

Harris’s name in the police activity sheets and that a defense witness,

Madeline Nixon, mentioned having seen Mr. Harris around the time of the

shooting but that he had walked away prior to the actual shooting. See N.T.,

3/4/22, at 19, 33-34. Attorney Hoof relayed further that the activity sheets

indicated Mr. Harris was a friend of Mr. Anderson, he had not provided a

statement to police regarding the identity of the shooter, and Appellant had

never mentioned him. Id. at 30. Based on the foregoing, Attorney Hoof

testified that he had no reason to believe that Mr. Harris had witnessed the

shooting and therefore no reason to believe that he had any exculpatory

information. Id. at 36; see also id. at 42 (explaining that he did not “explore

[Mr. Harris] because [he] didn’t feel like it would help him”).

At the hearing, Mr. Harris admitted to writing the January 7, 2016 letter

and signing the certification. Id. at 68-70, 83. However, Mr. Harris testified

bluntly that “the truth of the matter” was that he was not at the scene when

Mr. Anderson was shot, that he did not meet Appellant until they were in

prison together, and he only knew that Appellant was in prison for Mr.

Anderson’s murder because Appellant told him as much. Id. at 84; see also

id. at 68 (“I didn’t see anything. I was talking to [Mr. Anderson] and I walked

away. I got off the block and I heard some shots. When I turned around, I

-9- J-S03009-23

seen him on the ground. I was stuck at the corner when I seen him laying

like that. And that was, like, it.”), 74 (reiterating, when testifying that portions

of the letter were false, that “I didn’t see [Mr. Anderson] get shot, so I didn’t

see nobody creeping up on him”).

At the conclusion of the hearing, the PCRA court credited the testimony

of Attorney Hoof and found that “it was within the realm of reasonable defense

counsel investigation of a case not to follow up with Mr. Harris based on what

was in the activity sheets, based on Ms. Nixon’s statement, and based on what

his theory of the case was.” Id. at 120. Moreover, the court found that

Appellant could not establish prejudice because Mr. Harris “would not have an

impact on the case.” Id. The court found that “[h]e basically said he knew

nothing at all that would tend to exonerate [Appellant], that he didn’t see what

happened.” Id. at 120-21. In fact, the court made “a finding, he was utterly,

a hundred percent incredible, unbelievable witness in every regard and would

not have impacted the case.” Id. at 121; see also PCRA Court Opinion,

6/8/22, at 9 (“Mr. Harris was completely incredible, and in any event, offered

no testimony that was helpful to the defense. Accordingly, [Attorney] Hoof

could not have been ineffective for failing to locate, interview and call Mr.

Harris as a trial witness.” (cleaned up)). Finally, the court rejected the after-

discovered evidence claim as to Mr. Harris because “[n]obody could possibly

have been swayed by what we just heard out of the mouth of Mr. Harris.”

N.T., 3/4/22, at 121.

- 10 - J-S03009-23

Once again, Appellant takes issue with the PCRA court’s credibility

determinations, contending that the court should have credited Mr. Harris’s

letter and certification over his testimony at the evidentiary hearing. See

Turner/Finley brief at 28 (“Appellant’s position was that [Mr.] Harris was not

truthful in court and that the PCRA court should have believed the

representations made in the letter and the certification and thus concluded

that [Mr.] Harris was indeed an exculpatory witness[.]” (cleaned up)). Since

the PCRA court’s credibility determinations are supported by the record, we

are bound by them. Accordingly, Appellant has failed to establish prejudice

or that Attorney Hoof acted unreasonably. Therefore, we conclude that the

PCRA court did not err in denying this claim.

Based upon the foregoing, we concur with Attorney Server’s conclusion

that Appellant’s claims are meritless. Therefore, we grant counsel’s petition

to withdraw and affirm the PCRA court’s order dismissing Appellant’s PCRA

petition.

Order affirmed. Gary Server, Esquire’s petition to withdraw is granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2023

- 11 - J-S03009-23

- 12 -