Appeal from the Order entered on March 4, 2009 in the Court of Common Pleas, Criminal Division of Philadelphia County at No. CP-51-CR-0409021-1999.
The opinion of the court was delivered by: Mr. Justice Baer
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
SUBMITTED: October 1, 2010
In this capital case, Ronald Hanible ("Appellant") appeals from the Order of the Court of Common Pleas of Philadelphia County ("PCRA court"), which denied without a hearing all guilt phase claims raised in his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546.*fn1 For the reasons that follow, we affirm.
The facts underlying Appellant's two murder convictions are fully set forth in our opinion affirming his judgment of sentence on direct appeal. Commonwealth v. Hanible, 836 A.2d 36 (Pa. 2003). We reiterate those facts necessary to facilitate an understanding of the issues raised herein.
The record establishes that in the late afternoon on January 15, 1999, while wearing a black ski hat and black sunglasses, Appellant visited the home of his aunt, Catherine McCants. McCants' daughter-in-law, Andrea Wilson, was also in the home at the time. Fifteen minutes after his arrival, at approximately 4:45 p.m., Appellant left the home and encountered Eric Wiley, McCants' godson, on the street outside of McCants' home. Appellant suggested to Wiley that the two men rob Milton Wise and Rodney Walters because they routinely "ran numbers" on that particular street and would have cash. Notes of Testimony ("N.T.") 3/5/2001 at 106. This was the second time Appellant discussed with Wiley a plan to rob the two victims. Wiley refused to participate in the robbery on the same block where his godmother resided, and noted his concern that one of the potential victims may be connected to the mob. Appellant responded, "I'll do it without you." Id. at 111.
Wiley then left Appellant on the street, and proceeded to McCants' residence. As Wiley did so, he observed Appellant standing in front of a vacant lot, and thought he saw Wise and Walters standing on the opposite side of the street. When Wiley entered McCants' home, he was sweating and flustered, and McCants inquired about what was going on. Wiley responded that he had just seen Appellant, who told him that McCants wanted to see Wiley. After their brief visit, Wiley was about to open McCants' front door to leave when he heard two gunshots. Wiley opened McCants' door and saw Wise lying on the ground with Appellant standing over him, pointing a gun. He then observed Walters run to Wise's aid. Moments later, Wiley heard two more gunshots. As Walters ran to help Wise, Appellant fired two shots at close range into Walters' abdomen. Both Wise and Walters died as a result of the shootings. The police arrived and obtained from the crime scene two black ski hats, and a pair of black sunglasses. McCants identified one of the hats and the sunglasses as being the same items worn by Appellant earlier that afternoon, and identified the other black hat as belonging to Wise, the victim.*fn2 N.T. 3/2/2001 at 11. On January 19, 1999, four days after the murder, police obtained a signed statement from Wiley describing the events as set forth above. A few days later, Appellant was arrested and charged with the murders of Wise and Walters. The police recovered $1,169 on Appellant's person at the time of his arrest.
At trial, the Commonwealth presented the testimony of Wiley. However, while on the witness stand, Wiley repudiated the statement he previously gave police, and testified that he never had a conversation with Appellant about a potential robbery of the victims, did not observe Appellant standing over Wise with a gun, and knew nothing about the murders. Wiley explained that police forced him to make and sign the false statement by physically attacking him and threatening to charge him with the murders. The Commonwealth then effectively impeached its own witness by confronting Wiley with the relevant portions of the statement he gave to police. To bolster the veracity of Wiley's prior statement, the Commonwealth also presented the testimony of the officer who took Wiley's statement, Detective Patrick Mangold. Detective Mangold testified that he did not use physical force or threat to obtain information from Wiley, and did not suggest answers to the questions posed, but rather asked Wiley questions and wrote down his responses verbatim. The Commonwealth further presented the testimony of McCants and her daughter-in-law, Andrea Wilson, which established that Appellant was at McCants' residence moments before the shootings that occurred in front of her home. McCants also testified that Appellant was wearing the same black sunglasses and ski hat that were recovered by police at the murder scene.
A medical examiner testified that Walters sustained two gunshot wounds to his lower abdomen, and that the gun was held against the victim's clothing when the shots were fired. He explained that the bullets pierced the victim's bowel, iliac artery, and kidney, with one bullet exiting the body and the other lodging in the victim's right hip. The medical examiner also testified that Wise suffered a single gunshot wound to the chest. The bullet travelled through his lung and heart, and lodged in his spine. A firearms examiner testified that the bullets recovered were .38 or .357 caliber and had most likely been fired from a revolver.
Appellant did not testify on his own behalf or present any witnesses at trial. Instead, he urged the jury to reject Wiley's statement to police as unreliable because, as Wiley testified, the statement was given out of fear that Wiley would be charged with the murders if he failed to implicate Appellant. He further contended that Wiley's statement to police was not worthy of belief because a crime scene photo demonstrated that Wiley's view of the shooting through McCants' doorway was obstructed by a van parked in front of her home. Thus, Appellant asserted, Wiley could not have seen what he described in his police statement.
Finally, Appellant argued to the jury that none of the physical evidence recovered by police implicated him in the crime. First, he argued there was no DNA evidence connecting him to either of the hats found at the scene. Second, Appellant maintained that McCants' testimony, which linked him to the hat and sunglasses recovered at the scene, was not credible because McCants may have been trying to "cover up" Wiley's participation in the murders by incriminating Appellant. Third, Appellant argued that the substantial amount of cash found on him when arrested did not implicate him in the crime because the parties stipulated that the victims possessed large sums of money after the murders and robbery occurred.*fn3
On March 9, 2001, a jury found Appellant guilty of first degree murder for the killing of Wise, second degree murder for the killing of Walters, two counts of robbery, and possession of an instrument of crime. Following the penalty hearing, the jury found two aggravating circumstances, namely that Appellant committed the murder while in the perpetration of a robbery, 42 Pa.C.S. § 9711(d)(6), and that Appellant had been convicted of another murder, id. at § 9711(d)(11), and no mitigating circumstances. Accordingly, it returned a verdict of death.
The trial court formally imposed the death sentence on June 13, 2001. Appellant obtained new counsel who thereafter filed a direct appeal raising three issues: (1) whether the evidence, which consisted primarily of a statement that had been repudiated, was sufficient to support the murder convictions; (2) whether the verdict was against the weight of the evidence for this same reason; and (3) whether a new penalty hearing was warranted because the trial court failed to instruct the jury on the mitigating circumstance that Appellant had no significant history of prior criminal convictions. Our Court rejected Appellant's claims, and affirmed Appellant's conviction and sentence. Commonwealth v. Hanible, 836 A.2d 36 (Pa. 2003). On October 4, 2004, the United States Supreme Court denied Appellant's petition for a writ of certiorari. Hanible v. Pennsylvania, 543 U.S. 835 (2004).
On November 19, 2004, Appellant filed a pro se PCRA petition, and counsel was appointed. The Defender Association of Philadelphia, Federal Court Division, Habeas Corpus Unit, subsequently entered its appearance, and filed an amended PCRA petition and two supplements to that petition, along with a motion for discovery. The Commonwealth filed a motion to dismiss the PCRA petition, but subsequently agreed that a new penalty hearing was warranted due to trial counsel's failure to present available mitigating evidence. The Commonwealth thereafter filed a revised motion to dismiss Appellant's guilt phase claims, in which it opposed discovery and an evidentiary hearing. In response, Appellant filed a letter-brief answer on April 4, 2008, as well as a supplemental appendix.
On July 2, 2008, former Justice Jane Cutler Greenspan, acting as the PCRA court judge, granted a new penalty hearing based on the parties' agreement, and issued a 35-page opinion and notice of intent to dismiss all guilt phase claims without a hearing pursuant to Pa.R.Crim.P. 909. On July 22, 2008, Appellant filed a response to the notice to dismiss in which he raised no new issues, but supplemented his argument relating to the issues previously presented. Because former Justice Greenspan was elevated to this Court before an order was entered dismissing Appellant's PCRA petition, the matter was reassigned to the Honorable Jeffrey Minehart, who, on March 4, 2009, issued an order granting the Commonwealth's motion to dismiss Appellant's PCRA petition without a hearing, denying Appellant's motion for further discovery, and incorporating former Justice Greenspan's Opinion dismissing all guilt phase claims.
Appellant now raises sixteen issues for review, each of which has several sub-issues.*fn4 Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). 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. Id.
Under Pennsylvania Rule of Criminal Procedure 909, which governs PCRA petitions in capital cases, the PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied "that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Pa.R.Crim.P. 909(B)(2). "[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004).
In order to be eligible for PCRA relief, Appellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2)(setting forth the eligibility requirements of the PCRA). Further, Appellant must demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived. Id. § 9543(a)(3). An issue has been previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." Id. § 9544(a)(2). A PCRA claim is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[-]conviction proceeding." Id. § 9544(b).
The majority of Appellant's claims challenge the performance of counsel. It is well-established that counsel is presumed effective, and the defendant bears the burden of proving ineffectiveness. Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, Appellant must demonstrate that: (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the defendant suffered prejudice as a result of counsel's deficient performance. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). A claim of ineffectiveness will be denied if the defendant's evidence fails to meet any one of these prongs. Id. at 221-22.*fn5
With regard to the reasonable basis prong, "we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis." Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). We will conclude that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that "an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation omitted). To establish the prejudice prong, the petitioner must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's ineffectiveness. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).
In Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which was decided before Appellant's direct appeal was filed,*fn6 this Court abrogated the rule that ineffectiveness claims based on trial counsel's performance must be raised at the first opportunity where a defendant has new counsel, see Commonwealth v. Hubbard, 372 A.2d 687, 695 n.6 (Pa. 1977), and held that a defendant "should wait to raise claims of ineffective assistance of trial counsel until collateral review." Grant, 813 A.2d at 738. Thus, Appellant's first opportunity to challenge trial counsel's effectiveness was in his PCRA petition, and he need not address appellate counsel's performance in order to preserve the underlying claim of trial counsel ineffectiveness.*fn7
Prior to addressing the merits of Appellant's claims, we note that the majority of the issues presented entail multiple sub-issues, many of which are entirely unrelated to each other; while other issues overlap in substantial part. Appellant also offers substantial analysis establishing the arguable merit of separate sub-issues of a single issue, yet sets forth a combined analysis of the reasonable basis and prejudice prongs of the ineffective assistance of counsel standard. In an effort to afford full review to all claims raised, we will set forth Appellant's argument on each issue, and dispose of each contention in an order that facilitates a comprehensive understanding of the claims raised.
I. Counsel Ineffectiveness for Failing to Challenge Appellant's Conviction on Due Process and Sixth Amendment Grounds
Appellant first contends that trial counsel was ineffective for failing to challenge his conviction, via a motion for judgment of acquittal, on two separate grounds: due process and the Sixth Amendment. *fn8
Appellant submits there is arguable merit to the underlying claim that his first degree murder conviction violates due process because it was based upon the least reliable form of evidence -- the statement Wiley gave to police and repudiated at trial. He explains that his conviction violates due process because Wiley's statement is uncorroborated by any other witness, and is inherently unreliable. Appellant characterizes the jury's verdict as being based upon nothing more than hearsay accusations made by Wiley, who had every reason to accuse Appellant falsely to avoid his own prosecution for the offense. *fn9 He emphasizes that Wiley was the only individual to identify him as the shooter, and provided the only evidence of a planned robbery. Appellant further asserts there was no DNA evidence linking him to the crime, no gun recovered from the scene, and no "reliable" evidence linking him to the physical evidence found at the murder scene. Under these circumstances, Appellant posits, trial counsel should have filed a motion for judgment of acquittal before the case went to the jury, contending that a conviction based on the Commonwealth's evidence would violate due process.
Concerning the second prong of the ineffectiveness test, Appellant contends that trial counsel had no reasonable basis for failing to seek relief in the trial court based on a due process violation, particularly where counsel's argument to the jury focused on the unreliability of the evidence, and the untrustworthiness of Wiley's statement to police. Appellant's Brief at 15. As to the prejudice prong of the ineffectiveness test, Appellant states, without elaboration, that "[h]ad counsel made a timely motion to the court, there is a reasonable likelihood that it would have been granted and the charges against Appellant resolved in his favor. The prejudice could not be more extreme." Id. at 15-16.
In resolving this issue, the PCRA court concluded that this claim was previously litigated because Appellant challenged the sufficiency of the evidence on direct appeal, arguing that Wiley's recanted statement was insufficient to support his murder convictions. Appellant contends that the PCRA court erred in finding this claim previously litigated because his current claim of constitutional error raised in his PCRA petition is distinct from the challenges to the sufficiency and weight of the evidence raised on direct appeal.
In response, the Commonwealth asserts that trial counsel was not ineffective for failing to challenge Appellant's conviction on the ground that it would violate due process. Initially, it maintains that the PCRA court properly found the issue to be unreviewable as previously litigated because our Court on direct appeal specifically rejected challenges to the sufficiency and weight of the evidence, which were based on the alleged unreliability of Wiley's recanted statement to police. The Commonwealth argues that although Appellant's current claim is couched in terms of due process, the claim is essentially the same as that raised on direct appeal.
As to the merits of the ineffectiveness claim, the Commonwealth submits that Appellant has failed to satisfy his burden of demonstrating the ineffectiveness of counsel. It emphasizes that to overcome the presumption that counsel was effective, a defendant must show that counsel's conduct was deficient or "outside the wide range of professionally competent assistance," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Appellant failed to do so here, the Commonwealth maintains, because trial counsel made all the arguments to the jury which Appellant faults him for failing to raise, i.e., that the jury should discredit Wiley's statement because he may have been involved in the crime; that Wiley never adopted his statement to police, and instead asserted that the police forced him to make the statement; that Wiley's view of the shooting through McCants' door was obstructed by a van parked in front of McCants' house; that the presence of money in the victims' pockets casts doubt on Wiley's statement that Appellant planned to rob the victims; and that there was no DNA evidence confirming that the hat and sunglasses found at the scene belonged to Appellant. According to the Commonwealth, trial counsel's presentation of these arguments to the jury, instead of presenting them to the court via a motion for judgment of acquittal based on a violation of due process, was reasonable. Moreover, the Commonwealth submits, Appellant has failed to demonstrate prejudice because there was no chance that the trial court would have granted the motion for judgment of acquittal. See Commonwealth v. Laird, 726 A.2d 346, 355 (Pa. 1999) (counsel cannot be deemed ineffective for declining to present a meritless claim).
We begin by recognizing that the PCRA court erroneously found this claim to be previously litigated pursuant to 42 Pa.C.S. § 9544(a)(2) (providing that an issue has been previously litigated if "the highest court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue."). We agree with Appellant that this Court on direct appeal did not rule on the merits of the issue raised herein, which challenges counsel's performance. See Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005) (holding that a Sixth Amendment claim alleging ineffective assistance of counsel raises an issue cognizable under the PCRA even if the claim underlying the ineffectiveness claim has been previously litigated). Moreover, the underlying issues raised on direct appeal are distinct from those raised in Appellant's PCRA petition because the former issues challenged the sufficiency and weight of the evidence, while the later allege a due process violation. The fact that all claims are premised upon a purported lack of reliability of the evidence supporting the first degree murder conviction does not render the instant claim unreviewable as previously litigated.
We therefore proceed to address the ineffectiveness issue. Even assuming, for purposes of discussion, that there is arguable merit to the claim, Appellant has failed to demonstrate the remaining two prongs of the ineffectiveness test. As to the reasonable basis prong, we recognize that, generally, the court should not glean from the record whether counsel had a reasonable basis for his action or inaction absent an evidentiary hearing, and that it is only in the most clear-cut cases that the reasons for counsel's conduct are apparent from the record. Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003). That being said, a PCRA petitioner must set forth a basis upon which to find trial counsel's performance constitutionally deficient. Appellant fails to offer any persuasive authority establishing that trial counsel acted unreasonably in emphasizing the unreliability of the evidence in his arguments to the jury and in his challenges to the weight and sufficiency of the evidence on appeal, rather than couching his claim in terms of due process in a motion for judgment of acquittal. In fact, he offers no Pennsylvania case in which similar relief has been granted on due process grounds, and upon which trial counsel purportedly should have relied in making a due process challenge.*fn10 The record supports the Commonwealth's assertion that trial counsel made all the underlying arguments relating to the unreliability of the evidence to the jury and on direct appeal, which Appellant now faults him for failing to raise. Counsel's failure to pose them as a challenge to due process does not render his performance constitutionally deficient, absent some authority existing at the time of trial that would have prompted trial counsel to pursue the issue sounding in due process. Because the strategy actually pursued by trial counsel was reasonably designed to effectuate Appellant's interests, he has failed to demonstrate a lack of reasonable basis. See Washington, 927 A.2d at 594 (providing that "we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis.").
Moreover, Appellant's ineffectiveness claim also fails for lack of prejudice because Appellant has not demonstrated that there is a reasonable probability that the trial court would have granted a motion for judgment on acquittal on due process grounds or that counsel would have been successful had he raised such issue on direct appeal. See Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa. 2006) (holding that to demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's error or omission, the result of the proceeding would have been different). As noted by the Commonwealth, the trial court considered all of Appellant's contentions regarding the purported unreliability of the evidence presented against him, albeit under the independent rubric of challenges to the weight and sufficiency of the evidence. The trial court rejected these contentions, and this Court affirmed those rulings on direct appeal. Significantly, in doing so, both the trial court, as well as this Court, expressly rejected the essential premise of Appellant's current due process claim, i.e., that the evidence supporting his first degree murder conviction was unreliable and insufficient as a matter of law.*fn11 As we noted on direct appeal, Appellant's conviction was not based solely on Wiley's recanted statement. Rather, the testimony of McCants and her daughter-in-law placed Appellant at the scene moments before the shooting, and items found at the scene were identified as belonging to Appellant. As Appellant has failed to demonstrate that that there is a reasonable probability that a challenge to his conviction based on due process would have been successful, he has failed to establish the requisite prejudice necessary to support his claim of ineffectiveness.
Appellant next contends that trial counsel was ineffective for failing to file a motion for judgment of acquittal on grounds that he was denied his Sixth Amendment right to confrontation because Wiley's accusations could not be adequately tested through cross- examination.*fn12 He submits that there is arguable merit to the claim because, at trial, Wiley refused to adopt the accusations as his own, and indicated that he made the statement only because he had been beaten and threatened by police. Thus, Appellant concludes that he was denied the right of confrontation because meaningful cross-examination of Wiley regarding the critical accusatory details of his statement was impossible.
In support of his contention, Appellant relies on Douglas v. Alabama, 380 U.S. 415 (1965). In Douglas, after being found guilty in a separate trial, an accomplice of the accused invoked the Fifth Amendment against self-incrimination when the accomplice was called to testify at the accused's trial. Thereafter, the prosecutor read to the jury the accomplice's written confession, which included information implicating the accused. The High Court in Douglas ruled that the accused's inability to cross-examine the accomplice about the purported confession denied him the right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.
Appellant submits that the same result is warranted here, and trial counsel should have pursued such theory in a motion for judgment of acquittal before the case reached the jury. Appellant makes no individualized proffer as to the reasonable basis and prejudice prongs of the ineffectiveness standard, other than that set forth in relation to the due process component of the claim discussed in Issue I(A). Further, the PCRA court did not independently evaluate this Sixth Amendment claim, but rather found the combined claim of due process/Sixth Amendment to have been previously litigated as set forth above.
The Commonwealth responds that Appellant's claim lacks arguable merit under the Sixth Amendment because the High Court's ruling in Douglas does not apply to a prior inconsistent statement of a testifying witness. It emphasizes that unlike the declarant in Douglas, Wiley actually testified at Appellant's trial, and therefore was subject to cross-examination by trial counsel. "It is the presence of the witness in the courtroom, subject to cross-examination, that enables a jury (unlike an appellate court) to determine whether or not to credit a prior inconsistent statement." Commonwealth's Brief at 24. Under such circumstances, the Commonwealth maintains, there can be no Sixth Amendment violation to support the claim of trial counsel ineffectiveness.
We agree with the Commonwealth that there is no arguable merit to Appellant's underlying claim that his Sixth Amendment confrontation rights were violated. It is well-settled that admitting a declarant's prior inconsistent statement does not violate the Confrontation Clause of the Sixth Amendment when the declarant, himself, testifies as a witness at trial and is subject to cross-examination. See Crawford v. Washington, 541 U.S. 36, 60 (2004) (holding that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements"); California v. Green, 399 U.S. 149, 162 (1970) (holding that where the declarant is not absent, but is present to testify and to submit to cross-examination, the admission of his out-of-court statements does not create a confrontation problem). Trial counsel had every opportunity to cross-examine Wiley at trial, and, in fact, did so, eliciting details regarding why he gave the "false" statement implicating Appellant to police. See N.T. 3/5/2001 at 64-82. Accordingly, there is no legal basis to support Appellant's suggestion that trial counsel should have filed a motion for judgment of acquittal based upon a violation of the Sixth Amendment right to confrontation, and counsel cannot be deemed ineffective for failing to raise a baseless claim.
II. Counsel Ineffectiveness for Failing to Object to Wiley's Statement
Appellant next argues that trial counsel was ineffective for failing to object to the admission of Wiley's prior statement to police as substantive evidence of Appellant's guilt, and for failing to seek a jury instruction in this regard.*fn13 *fn14 He argues that Wiley's statement to police is inherently unreliable, and fails to satisfy the requisites for admission of prior inconsistent statements set forth in Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992), and Pa.R.E. 803.1(1).*fn15 In Lively, this Court held that the admission of a prior inconsistent statement of a non-party witness shall be used as substantive evidence only when: (1) the statement was given under oath at a formal legal proceeding; or (2) the statement is reduced to a writing signed and adopted by the declarant; or (3) the statement is recorded verbatim contemporaneously with the making of the statement. Id. at 10.*fn16
Appellant challenges the lower court's finding that Wiley's statement was "signed and adopted by the declarant." The crux of his claim is that Wiley never "adopted" his statement at trial, but rather repudiated it, raising a question as to whether the statement was ever made. Further, Appellant submits, Wiley's statement to police is not trustworthy for the myriad of reasons he asserted in Issue I(A), particularly that Wiley was motivated to accuse Appellant falsely because the police threatened Wiley with prosecution for the instant murders. Accordingly, Appellant asserts there is arguable merit to the underlying claim that Wiley's statement is inadmissible as substantive evidence. He maintains that trial counsel should have objected to the admission of such statement, and requested an appropriate limiting instruction, informing the jury that it could consider Wiley's prior inconsistent statement to police only to impeach Wiley's trial testimony that he had no intimate knowledge of the murders, and not as substantive evidence of Appellant's guilt.
Regarding the second prong of the ineffectiveness test, Appellant asserts that Wiley's statement was the most important evidence in the Commonwealth's case, and trial counsel had no reasonable basis for failing to at least seek an instruction cautioning the jury against considering Wiley's prior statement for the truth of its contents. Finally, he submits that he satisfied the prejudice prong of the ineffectiveness test because, had trial counsel made the proper objection and sought the appropriate jury charge, there is a reasonable likelihood that the requested relief would have been granted and the jury would have been prohibited from considering Wiley's statement to police as substantive evidence of his guilt. Appellant maintains that the outcome of the trial would have been different because the jury had no other reliable evidence upon which to base a conviction of first degree murder.
The Commonwealth counters that there is no arguable merit to Appellant's claim that trial counsel provided constitutionally deficient representation when he failed to object to Wiley's statement on the ground that Wiley did not "adopt" such statement at trial. According to the Commonwealth, the statement was plainly admissible under Lively because the requirement that a statement be "signed and adopted" does not mean that the statement must be adopted at trial. Rather, the Commonwealth asserts, a prior inconsistent statement is admissible as substantive evidence if there is a contemporaneous acknowledgement that the written statement accurately reflects what the witness said. It maintains that "Wiley adopted his statement when he signed it -- his signature served as an attestation that the statement accurately recounted his words." Commonwealth's Brief at
27. To focus on the declarant's adoption of the statement at trial, the Commonwealth suggests, is simply absurd because a statement reaffirmed by a declarant at trial would never be "inconsistent" with the declarant's trial testimony, and thus would never be subject to the rules governing prior inconsistent statements. Because Wiley acknowledged at trial that he signed the statement when it was made, and the detective who interrogated him corroborated that Wiley made such statement, the Commonwealth concludes there is no question that Wiley adopted his prior inconsistent statement to police for purposes of determining admissibility pursuant to Lively. Hence, it asserts that the statement is admissible as substantive evidence of Appellant's guilt, and trial counsel cannot be deemed ineffective for failing to object or seek an unwarranted jury charge.*fn17
The PCRA court likewise found no arguable merit to Appellant's claim, holding that substantive use of Wiley's statement was proper and in compliance with the requisites of Lively because Wiley adopted his statement by signing it, the statement was inconsistent with testimony Wiley gave at trial, and Wiley was available for cross-examination. PCRA Ct. Slip Op. at 8 (CP Philadelphia Jul. 2, 2008).
We agree with both the Commonwealth and the PCRA court that Appellant's claim fails for lack of arguable merit. Appellant's position that Wiley's statement was not "adopted" by him because he repudiated it at trial is untenable. Our holding in Lively is premised upon the notion that the statement sought to be admitted is, in fact, inconsistent with the testimony given by the witness at trial. Thus, as the Commonwealth recognizes, adoption of the statement by the witness at trial is unnecessary as it would obviate the need to incorporate the evidentiary rules for prior inconsistent statements. Wiley adopted his prior statement to police when he signed each page of the document. Both Wiley and the detective interrogating him confirmed this fact at trial. Thus, the requisites of Lively were satisfied and the jury was free to consider Wiley's prior statement to police for the truth of the matter asserted therein, and as substantive evidence of Appellant's guilt. See Commonwealth v. Ragan, 645 A.2d 811, 818 (Pa. 1994) (holding that a statement that the witness had previously given to police, which had been reduced to writing and signed by the witness, but which was repudiated by the witness at trial, was admissible as substantive evidence because the requirements of Lively were satisfied). Consequently, Appellant's claim of trial counsel ineffectiveness fails for lack of arguable merit.
III. Ineffectiveness for Failing to Refute Wiley's Prior Statement to Police
Appellant argues that trial counsel was ineffective for failing to refute Wiley's statement to police by presenting evidentiary proof that Wiley's view of the crime was obstructed. He concedes that trial counsel suggested to the jury that Wiley's view was compromised by doing the following: (1) submitting into evidence a police photo, which showed two large vehicles parked in front of McCants' home; (2) asking McCants at trial whether a van, as shown in the police photo, had been parked in front of her residence, N.T. 3/2/2001 at 33-34; (3) asking Wiley at trial to note "the two blue vans" in the photo, N.T. 3/5/2001 at 78; (4) eliciting Detective Mangold's acknowledgement that he had not asked Wiley about "the van being in his line of vision," Id. at 125; and (5) arguing to the jury that the van obstructed Wiley's view of the shootings. N.T. 3/6/2001 at 17-18. Appellant maintains, however, that merely suggesting to the jury that Wiley's view was obstructed was insufficient, and that trial counsel was ineffective for failing to present evidentiary proof of the same.
Specifically, Appellant submits that had trial counsel conducted a reasonable investigation and interviewed McCants and her daughter-in-law prior to trial, he would have discovered that the witnesses believed Wiley could not have seen what he claimed to have seen from McCants' front door. He attached to his PCRA petition declarations from McCants and her daughter-in-law, indicating the same. See Appellant's Brief, Appendix, Volume II, Exhibit 13 at ¶ 7 (wherein McCants declares "[t]here is no way for anyone to see what happened from my doorway; the van was in the way"); id. Exhibit 14 at ¶ 2 (wherein Andrea Wilson asserts, "there is no possible way that [Wiley] could see what was happening on the street or who the shooter was. The door was closed!").*fn18
In further support of the claim that trial counsel should have presented evidentiary proof of Wiley's obstructed view, Appellant maintains that counsel should have sought funding to obtain a crime scene expert to opine as to the inability of Wiley to view the shootings from McCants' entryway. Attached to his PCRA petition is a declaration from a forensic investigation specialist, who asserted that he studied the crime scene and documentation relating to the case years after the offense, and concluded that Wiley's view of the shootings would have been obstructed had he been standing at the location set forth in his police statement. See id., Exhibit 17 at ¶ 22 (wherein R. Robert Tressel opines that, based upon his measurements and calculations, it would be "impossible for Wiley to have seen what he purports to have seen from inside the threshold of [McCants'] door"). Thus, Appellant concludes there is arguable merit to his claim that trial counsel was ineffective for failing to present the aforementioned evidentiary proof establishing that Wiley could not possibly have seen Appellant commit the offense, rather than merely suggesting the same to the jury.
As to the reasonable basis and prejudice prongs of the ineffectiveness test, Appellant emphasizes that Wiley's ability to see the crime from the doorway of McCants' home was crucial. Under these circumstances, he concludes, trial counsel could have had no reasonable basis for failing to present evidentiary proof of the obstructed view. Appellant further concludes that had the proffered evidence from McCants, Wilson, and the forensic investigation specialist been presented to the jury, it would have cast doubt on the truthfulness of Wiley's claimed observation. As this case is based on credibility, Appellant asserts, he was prejudiced by counsel's omission because there is a reasonable likelihood that the verdict would have been different if the jury was presented with the proffered evidence.
The Commonwealth responds that Appellant's claim of ineffectiveness fails for lack of a factual basis because trial counsel did, in fact, present evidence that Wiley's view of the crime scene from McCants' doorway was obstructed. It argues that trial counsel's failure to produce additional evidence to establish the same point cannot amount to ineffectiveness. Moreover, the Commonwealth submits that trial counsel could not have anticipated that McCants would recant her trial testimony and later assert that it would be impossible for Wiley to have viewed the crime. It further maintains that McCants' daughter-in-law's subsequent declaration that McCants' door was closed when the shootings occurred is unpersuasive because it is inconsistent with the testimony established at trial. Finally, the Commonwealth argues, trial counsel was not ineffective for failing to hire a forensic investigation expert because the crime scene experts who actually investigated the scene at the time of the offense produced the helpful photograph of the van that trial counsel presented in support of his argument to the jury that Wiley's view was obstructed.
The PCRA court rejected Appellant's claim, finding that independent investigation by trial counsel would have been "superfluous" because "trial counsel clearly presented evidence that the van would have obstructed Mr. Wiley's view from Ms. McCants' doorway." PCRA Ct. Slip Op. at 7-8. The court further emphasized that Wiley's ability to see the shootings from that particular spot was not determinative of the trial's outcome because part of the defense strategy was to suggest that Wiley, himself, had committed the offense, making the positioning of the van irrelevant. Id. at 8.
We agree with the PCRA court that Appellant's claim of trial counsel ineffectiveness fails for lack of arguable merit. As noted, trial counsel directly questioned McCants about the location of the van, using crime scene photographs to support an argument to the jury that Wiley could not have seen what he claimed to have seen in his statement. He further reiterated the existence and position of the van in his cross-examination of Wiley and Detective Mangold. Hence, trial counsel cannot be deemed ineffective for failing to present additional evidence of this sort. See Commonwealth v. Mason, 741 A.2d 708, 717-18 (Pa. 1999) (holding that where proposed evidence is cumulative of testimony at trial, counsel cannot be deemed ineffective for failing to present it). Further, trial counsel cannot be deemed ineffective for failing to obtain the opinion of an independent crime scene expert when the forensic investigators who actually examined the scene obtained evidence favorable to Appellant, which trial counsel utilized in his cross-examination of the Commonwealth's witnesses. See Commonwealth v. Williams, 640 A.2d 1251, 1265 (Pa. 1994) (holding that "trial counsel need not introduce expert testimony on his client's behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony"). Appellant, therefore, is not entitled to relief on this claim.
IV. Ineffectiveness for Failing to Investigate Wiley's Background for Impeachment Purposes Appellant argues that trial counsel was ineffective for failing to investigate Wiley's background to discover the following evidence, which could have been used to impeach and discredit Wiley: (1) Wiley's previous juvenile adjudication for theft; (2) Wiley's previous murder charges, which had been nolle prossed prior to Appellant's trial; (3) Wiley's previous criminal charges for, inter alia, robbery and attempted murder, which were pending at the time of Appellant's trial; and (4) an immunity agreement the Commonwealth purportedly offered to Wiley after he indicated at Appellant's preliminary hearing that he had no knowledge of the murders.
Relating to the juvenile adjudication for theft, Appellant asserts, without further elaboration, that "counsel did not impeach Wiley with his juvenile adjudication for theft, though such impeachment would have been proper." Appellant's Brief at 30. As to Wiley's prior unrelated criminal charges (referenced as (2) and (3), supra), Appellant implies that the police may have used these charges against Wiley in an effort to obtain his statement implicating Appellant in the instant murder. He emphasizes that trial counsel did not seek discovery relating to such criminal charges, and did not question Detective Mangold or Wiley as to whether these incidents played a role in Wiley's encounter with police that led to the giving of his statement. As to the immunity agreement, Appellant offers only that "[r]easonably diligent counsel would have requested discovery regarding the specifics and scope of the offer made to Wiley." Appellant's Brief at 32. Appellant concludes that his ineffectiveness claim has arguable merit because trial counsel could have investigated these areas and used such evidence to impeach and discredit Wiley and his statement to police.
As to the second prong of the ineffectiveness test, Appellant asserts that trial counsel's omissions constitute "inexplicable lapses," that could have no reasonable basis designed to effectuate his interests. Appellant's Brief at 32-33. He further claims that he was prejudiced because, had trial counsel discovered the proffered evidence, he could have provided the jury with compelling reason to discredit the single most important piece of evidence against Appellant -- Wiley's statement. He emphasizes that had the jury been provided with a complete picture regarding Wiley and his dealings with police, there is a reasonable likelihood that the verdict would have been different. Finally, Appellant contends that the PCRA court abused its discretion by denying discovery and an evidentiary hearing on this issue.
The Commonwealth counters that trial counsel was not ineffective for failing to impeach Wiley with the proffered evidence, which amounts to nothing more than unrelated criminal charges against Wiley that had been dismissed at the time of Appellant's trial,*fn19 unrelated criminal charges against Wiley that had been pending at the time of Appellant's trial, and a non-existent immunity offer.*fn20 Globally responding to all proffered items of evidence, the Commonwealth argues that there can be no arguable merit to Appellant's claim alleging trial counsel's failure to impeach Wiley because Wiley never testified favorably to the Commonwealth. By repudiating his prior statement to police at trial, the Commonwealth asserts that Wiley became a defense witness, and that it was "in [Appellant's] interests not to impeach his testimony disavowing the authenticity and accuracy of his statement." Commonwealth's Brief at 34 (emphasis added).
The Commonwealth further addresses individually the purported items of impeachment evidence proffered by Appellant. Relating to the charges against Wiley that had previously been dismissed, the Commonwealth argues that the ineffectiveness claim fails because trial counsel would have had no reason to confront Wiley with these matters as they have no relevance to his credibility. As to the criminal charges pending against Wiley at the time of Appellant's trial, the Commonwealth submits that the jury was made aware of these charges when the prosecutor elicited such information on direct examination. See N.T. 3/5/2001 at 62 (wherein the prosecutor asked Wiley, "after you were interviewed by the police, you were down at the Police Administration Building, and you were arrested, for Felony charges not related to this case; is that correct?"). Thus, it maintains, trial counsel cannot be faulted for failing to present evidence that was already admitted at trial. Moreover, the Commonwealth discounts as pure speculation Appellant's suggestion that the detective may have used Wiley's unrelated criminal activity to obtain his statement implicating Appellant. It concludes that Appellant's imagination cannot serve as a substitute for a legal ineffective assistance of counsel analysis.
Finally, as to the purported immunity agreement, the Commonwealth asserts that it drafted such agreement as a precaution after Wiley announced his intention to invoke his Fifth Amendment right to remain silent at Appellant's preliminary hearing. It clarifies, however, that it never offered the immunity agreement to Wiley because Wiley's counsel determined that his proposed testimony would not implicate the Fifth Amendment. Thus, the Commonwealth maintains, the unexecuted immunity agreement was irrelevant and unavailable as evidence of impeachment.
The PCRA court ruled that Appellant's claim that trial counsel was ineffective in his investigation of Wiley's background and in his cross-examination of Wiley was "baseless and unsupported by the record." PCRA Ct. Slip Op. at 6. The court did not specifically address that component of the claim relating to Appellant's juvenile adjudication for theft. As to the dismissed and pending criminal charges, the court held that trial counsel correctly declined to cross-examine Wiley because Wiley's trial testimony was favorable to Appellant, in that he recanted his previous statement implicating Appellant in the murders.
Hence, it noted that the Commonwealth, and not the defense, would desire to impeach Wiley's trial testimony with his prior statement. Id. at 7. The PCRA court concluded that "[c]learly, counsel made a strategic decision to show Wiley to be truthful at trial and to have lied in his prior statement." Id. at 7. Finally, it held that any attempted impeachment of Wiley with an immunity agreement would have been precluded because Wiley never received immunity from the Commonwealth.
The PCRA court's conclusion that trial counsel had a reasonable strategy in not cross-examining Wiley on the various items of evidence proffered herein is supported by the record, and free of legal error. Simply put, Wiley's testimony at trial was favorable to Appellant as it repudiated his previous statement implicating Appellant in the murders. We decline to hold that trial counsel rendered constitutionally deficient representation when he failed to impeach testimony favorable to his client. Had trial counsel cross-examined Wiley with the proffered evidence, as Appellant suggests, he would likely now be challenging counsel's performance in that regard.
Although we appreciate that Appellant's ineffectiveness claim is nuanced and is directed primarily at trial counsel's failure to "impeach" Wiley's statement to police, rather than his trial testimony repudiating such statement, we find that Appellant has failed to demonstrate that the proffered evidence would have accomplished such result. First, Appellant has not demonstrated how Wiley's previous juvenile adjudication for theft would have served to discredit only Wiley's statement to police, but not his trial testimony in favor of Appellant. Second, Appellant has not demonstrated that Detective Mangold used Wiley's pending or dismissed criminal charges to induce Wiley to give a statement implicating Appellant in the instant murders.*fn21 Appellant's suggestion that Detective Mangold may have done so is mere conjecture, not grounded in any evidence of record.*fn22
To the contrary, Wiley testified that Detective Mangold threatened him with prosecution for the instant murders to obtain his statement implicating Appellant. Thus, the jury already possessed clear evidence from Wiley, himself, that his statement implicating Appellant had been coerced. Wiley never suggested at trial that Detective Mangold invoked improperly Wiley's dismissed or pending criminal charges during his interrogation. Third, Appellant has failed to demonstrate how an immunity agreement that was drafted by the Commonwealth, but was never offered to Wiley, would have served to discredit Wiley's statement to police. We emphasize that this is a collateral proceeding at which Appellant, as petitioner, bears the burden of proving entitlement to his claim. Appellant has failed to do so here, and this ineffectiveness claim fails for lack of arguable merit. *fn23
We further conclude that the PCRA court did not abuse its discretion by denying discovery and an evidentiary hearing on this meritless claim. We review the denial of a discovery request in post-conviction proceedings for abuse of discretion. Commonwealth v. Bryant, 855 A.2d 726, 749-50 (Pa. 2004). Discovery requests in the context of a PCRA petition in a death penalty case are addressed in Pennsylvania Rule of Criminal Procedure 902(E)(2), which provides as follows:
On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.
Pa.R.Crim.P. 902(E)(2). We have held that a "showing of good cause requires more than just a generic demand for potentially exculpatory evidence. . . ." Commonwealth v. Chambers, 807 A.2d 872, 889 (Pa. 2002); see also Commonwealth v. Abu-Jamal, 720 A.2d 79, 91-92 & n.15 (Pa. 1998) ("wholesale discovery of whatever information [petitioner] 'believed' to exist and/or of entire files so that he could discern whether his assertions were true" exceeds permitted discovery). Appellant has failed to demonstrate good cause for further discovery on this claim.
Regarding the trial court's denial of Appellant's request for an evidentiary hearing, we reiterate that Pa.R.Crim.P. 909, which governs PCRA petitions in capital cases, provides that the PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied "that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Pa.R.Crim.P. 909(B)(2). "[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004). Appellant has failed to satisfy this burden as his reliance on speculation, and failure to assert facts, which, if believed, would support his claim cannot be equated with a genuine issue concerning a material fact that warrants an evidentiary hearing.
V. Ineffectiveness in Failing to Investigate McCants' and Wilson's Background for Impeachment Purposes
Appellant next contends that trial counsel was ineffective for failing to investigate facts that could have been used to impeach Commonwealth witnesses, McCants and Wilson, to undermine Wiley's statement to police, and to support the defense that Wiley was the perpetrator. As noted, McCants' testimony placed Appellant at the scene of the crime moments before the murder occurred, established that Wiley was inside McCants' home at the time the fatal shots were fired, and identified the ski hat and sunglasses found at the scene as having been worn by Appellant earlier that afternoon. Wilson, who is McCants' daughter-in-law, corroborated McCants' testimony in significant part.
The purported items of impeachment evidence that Appellant faults trial counsel for failing to investigate and present are as follows: (1) McCants' prior inconsistent statements implicating Wiley in the murders; (2) a 911 call made from McCants' residence at the time of the shootings; and (3) McCants' background and character, including her previous use of aliases, her reputation for dishonesty, and her prior contact with police as a Commonwealth witness.
A. McCants' Prior Inconsistent Statements
Appellant asserts that, on the day of the shootings, McCants*fn24 made statements to police implicating Wiley in the instant murders and establishing that he ran into her home after shots had been fired, which was inconsistent with her trial testimony that Wiley was inside her home when the shots rang out. See Appellant's Brief, Appendix, Volume II at 20 (wherein Sergeant McCuster indicates in a police investigation interview record that McCants told him that both Wiley and Appellant were at McCants' residence, that both men left the home, that McCants heard gunshots seconds later, and that Wiley thereafter returned to the house); see also id. at 19 (wherein Officer Maury reports that McCants informed him that she believed Wiley and Appellant may have committed the murders). Appellant concludes that trial counsel's failure to confront McCants with her prior inconsistent statements constituted deficient performance under Strickland because the statements undermined Wiley's "alibi" and demonstrated that Wiley was in a position to have committed the crimes and had a motive to lie to police and falsely implicate Appellant. He argues that trial counsel could have had no reasonable basis for failing to impeach McCants' testimony in this regard. Finally, Appellant maintains, he was prejudiced by counsel's omission because had counsel confronted McCants with these statements, he would have exposed the lack of integrity in the Commonwealth's case.
The Commonwealth responds that Appellant's claim clearly lacks arguable merit because the evidence that he argues trial counsel should have presented actually implicates Appellant in the murders. As the police reports reveal, McCants initially informed the officers that she believed both Wiley and Appellant committed the murders. For this reason alone, the Commonwealth maintains, trial counsel cannot be deemed ineffective for failing to impeach McCants with her prior inconsistent statements. The Commonwealth further points out that trial counsel had a reasonable strategy in not impeaching McCants with her prior inconsistent statements because McCants had also given police a detailed prior consistent statement on the night of the murders, outlining how Wiley did not leave her home until after the gunshots were fired. Because McCants was not impeached, the Commonwealth asserts that it never introduced her prior consistent statement.
The PCRA court found no merit to Appellant's claim, ruling that the "alibi" that McCants provided for Wiley had nothing to do with Appellant's involvement in the shootings because the only relevant inquiry was whether Wiley witnessed the murders. PCRA Ct. Slip Op. at 13. It found reasonable trial counsel's strategy of arguing to the jury that Wiley's original statement implicating Appellant had been coerced and that his recantation at trial was truthful. Id. The court held that trial counsel had an interest in steering the jury away from examining Wiley's precise location at the time of the shootings, and keeping the focus on Wiley's recantation of his original statement. Id.
We agree with the PCRA court that Appellant's claim fails as trial counsel acted reasonably in declining to impeach McCants with her prior inconsistent statements because such statements implicated Appellant in the instant offense. See Commonwealth v. Small, 980 A.2d 549, 565 (Pa. 2009) (holding that the failure to impeach a witness on a particular ground cannot constitute ineffective assistance of counsel if trial counsel had a reasonable strategy for not so impeaching).
Appellant asserts that trial counsel was ineffective for failing to obtain and use at trial the police department's audiotape of a 911 call reporting the shootings, which was made from McCants' residence by a female caller. Appellant asserts that in the background of the 911 call, you can hear a second female saying to another individual (purportedly, Wiley), "[d]on't run into the police." While there was some confusion as to who made the background statement at issue, Appellant asserts that he learned after the PCRA proceedings had concluded that McCants' daughter-in-law, Wilson, made the statement. Appellant argues that the background statement, "[d]on't run into the police," supports the inference that Wiley was involved in the crime, and that his involvement was apparent to Wilson. According to Appellant, this is consistent with the defense theory that it was Wiley, and not Appellant, who murdered the victims. He concludes that trial counsel's failure to secure and present the 911 tape to the jury fell below the level of reasonable performance required by Strickland, and that he was prejudiced thereby.
The Commonwealth counters that Appellant's claim lacks arguable merit because the 911 call had no impeachment value. It maintains that directing one not to "run into the police" does not necessarily imply criminality and, in any event, would not have been exculpatory to Appellant. Moreover, the Commonwealth points out, Wilson confirmed in her affidavit obtained for the PCRA proceeding that Wiley was inside McCants' home at the time the shootings occurred. See Appellant's Brief, Appendix, Volume II at 14. Thus, it maintains, any attempt to use Wilson's background statement recorded in the 911 call to suggest incrimination of Wiley fails.
The PCRA court denied Appellant relief on this claim. Initially, it noted that Appellant failed to meet its burden of establishing the identity of the declarant of the statement at issue.*fn25 Even assuming Appellant's assertions regarding the nature of the 911 call were true, it held that Appellant was not prejudiced by trial counsel's failure to present the audiotape to the jury because it would not have influenced the verdict. PCRA Ct. Slip Op. at 12. The court emphasized that a "suggestion that one not run into the police is hardly evidence of guilt or cover-up." Id.
We concur in the PCRA court's conclusion that Appellant's claim fails. The claim lacks arguable merit because the 911 call lacked impeachment value as it did not serve to discredit Wilson's testimony. Wilson testified that Wiley was present inside McCants' home when the shooting occurred. The 911 call, in which Wilson warns Wiley to stay away from police, does nothing to discredit this particular assertion, and reaffirms that Wiley was, in fact, inside McCants' residence when the murders occurred. Given Appellant's previous claims in which he details Wiley's extensive previous criminal charges, it is not beyond credulity that Wilson would caution Wiley against being found near a crime-scene murder investigation. Trial counsel cannot be deemed to have provided constitutionally deficient representation based on his failure to elicit such a ...