Com. v. Brown, B. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BOBBY BROWN :
:
Appellant : No. 2130 EDA 2021
Appeal from the PCRA Order Entered September 17, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000043-2017
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 22, 2022
Appellant Bobby Brown appeals pro se from the order dismissing his
timely first Post Conviction Relief Act1 (PCRA) petition. Appellant raises
numerous claims of ineffective assistance against trial, appellate, and PCRA
counsel. We affirm.
The facts of this matter are well known to the parties. See
Commonwealth v. Brown, 3469 EDA 2018, 2019 WL 6359023, at *1-3 (Pa.
Super. filed Nov. 27, 2019) (unpublished mem.). Briefly, on November 1,
2016, Appellant went to a garage in Pottstown where Robert Pfanders (the
victim) and Terry Presgrave were working. After an argument about
Appellant’s motorcycle, Appellant shot the victim three times. Immediately
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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after the shooting, the victim told Presgrave that the shooter’s name was
“Bobby Brown.” The victim was transported to a hospital and survived his
injuries. After both Presgrave and the victim identified Appellant as the
shooter in photo arrays, an arrest warrant was issued for Appellant.
A prior panel of this Court explained that:
On November 25, 2016, Officer Kevin Gorman of the Philadelphia
Police Department pulled Appellant over to make a routine traffic
stop. Appellant initially provided a false name, identifying himself
as Maurice Brown. When Officer Gorman eventually determined
that the driver’s actual name was Bobby Brown, he took him into
custody under an active warrant out of Pottstown for attempted
homicide.
Thereafter, the Commonwealth filed an information charging
Appellant with offenses related to the shooting. On August 3,
2017, Appellant filed a motion to suppress the identification
evidence. Appellant argued that the photo array lineup was
prejudicial and unduly suggestive because none of the other
photographs resembled Appellant. Following a suppression
hearing on April 2, 2018, the trial court denied Appellant’s motion.
Id. at *3 (citations and quotation marks omitted).
We add that Scott McIntosh, Esq. (trial counsel), represented Appellant
at trial. At trial, Presgrave testified that he saw Appellant holding a gun during
Appellant’s argument with the victim, heard gunshots, and saw the victim fall
to the ground. Immediately after the shooting, the victim told Presgrave that
Bobby Brown had shot him. Presgrave also admitted that he frequently used
methamphetamine, including on the date of the shooting. During closing
arguments, the attorney for the Commonwealth remarked that Appellant
could not account for his whereabouts at the time of the shooting.
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On May 21, 2018, the jury convicted Appellant of attempted murder and
related offenses. The trial court subsequently sentenced Appellant to an
aggregate term of twenty-two-and-a-half to forty-five years’ incarceration.
Appellant filed timely post-sentence motions, which the trial court
denied. Appellant timely appealed. Erin C. Lentz McMahon, Esq. (appellate
counsel) represented Appellant on direct appeal. On appeal, Appellant argued
that the trial court erred in denying his motion to suppress the identification
evidence. Brown, 2019 WL 6359023, at *4. In reviewing Appellant’s claim,
a panel of this Court noted that it could find the issue waived because
Appellant did not include the photo array in the certified record. Id. at *6.
However, the Court ultimately agreed with the trial court’s conclusion that
there was independent evidence to support the identification of Appellant and
affirmed the judgment of sentence. Id. at *6, *10.
The PCRA court summarized the subsequent procedural history as
follows:
Appellant filed a timely pro se [PCRA petition] on September 23,
2020. Sean Cullen, Esq. was appointed to represent Appellant on
October 1, 2020. Attorney Cullen filed a petition to incorporate
and supplement Appellant’s pro se PCRA petition and request for
a hearing on December 30, 2020. . . .
A video conference evidentiary hearing was held on February 2,
2021. Attorney Cullen represented Appellant. At the hearing, the
court heard testimony from trial counsel . . . and Appellant. . . .
* * *
Appellant filed pro se correspondence on March 12, 2021, alleging
collusion between Attorney Cullen and the [Montgomery County]
District Attorney’s Office. On March 26, 2021, Attorney Cullen
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filed a petition for leave to withdraw appearance, citing Appellant’s
allegations of collusion between appointed counsel and the district
attorney’s office.
* * *
On May 4, 2021, a hearing was held regarding Attorney Cullen’s
petition for leave to withdraw. At the hearing, Appellant testified
he lacked confidence in his court-appointed attorney and was in
the process of hiring private counsel. On the same date, Attorney
Cullen’s petition for leave to withdraw appearance was granted. .
..
On June 10, 2021, Thomas D. Kenn[y], Esq. entered his
appearance on behalf of Appellant. Attorney Kenn[y] was
privately retained by Appellant.
* * *
On August 13, 2021, [Attorney Kenny] filed a [brief captioned
“]Statement of Precise Issues Pursued[”] which identified . . . five
issues to be pursued at the continuation of the PCRA hearing on
August 23, 2021[.]
* * *
Argument was held on August 23, 2021. [Attorney Kenny]
acknowledged that the evidentiary record was closed and that the
five issues identified in his [brief] were the only relevant issues
being pursued in the PCRA petition.
* * *
The court took the matter under advisement. On September 17,
2021, after consideration of the filings, arguments of counsel and
evidence presented in the instant matter, this court issued an
order denying the PCRA petition pared down to the five issues
PCRA counsel identified at the August 23, 2021 hearing.
PCRA Ct. Op., 12/20/21, at 2-5 (citations and footnote omitted, formatting
altered).
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Appellant timely filed a pro se notice of appeal2 and a court-ordered
Pa.R.A.P. 1925(b) statement.3 Appellant subsequently filed correspondence
with the PCRA court indicating that he wished to proceed pro se on appeal.
Attorney Kenny filed an application with this Court to withdraw as counsel.
On December 2, 2021, the PCRA court conducted a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), and granted Appellant’s
request to proceed pro se.4,5
Appellant raises the following issues for our review, which we restate
and reorder as follows:
____________________________________________
2 Although Appellant was represented by Attorney Kenny when he filed his pro
se notice of appeal, the rule against hybrid representation does not render the
timely pro se notice of appeal a legal nullity. See Commonwealth v.
Williams, 151 A.3d 621 (Pa. Super. 2016) (explaining that because a notice
of appeal protects constitutional rights, it is distinguishable from other filings
that require counsel, and this Court is required to docket pro se notice of
appeal despite the appellant being represented by counsel).
3 The PCRA court noted that Appellant served his Rule 1925(b) statement on
the PCRA court judge and the Commonwealth, but that he failed to file a copy
with Clerk of Courts. See PCRA Ct. Op. at 5 n.3. Nevertheless, the PCRA
court treated Appellant’s Rule 1925(b) statement as properly filed and the
PCRA court submitted a copy of the statement to the Clerk of Courts for filing.
See id.4 Although the PCRA court quotes from the transcript of the December 2, 2021
Grazier hearing in its Rule 1925(a) opinion, see PCRA Ct. Op. at 6-8, that
transcript is not included in certified record. However, because Appellant is
not challenging the PCRA court’s ruling in the Grazier hearing, the absence
of the transcript does not impede our review.
5This Court granted Attorney Kenny’s application to withdraw as counsel on
December 6, 2021.
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1. Whether the PCRA court erred in not granting relief on the
PCRA petition alleging that trial counsel was ineffective for
failing to file a motion to preclude Appellant’s prior bad acts?
2. Whether the PCRA court erred in not granting relief on the
PCRA petition alleging that trial counsel was ineffective for
failing to file a motion to exclude the victim’s hearsay
statement identifying Appellant as his assailant?
3. Whether the PCRA court erred in not granting relief on the
PCRA petition alleging that trial counsel was ineffective for
failing to impeach Terry Presgrave?
4. Whether the PCRA court erred in not granting relief on the
PCRA petition alleging that trial counsel was ineffective for
failing to contest the identification evidence?
5. Whether the PCRA court erred in not granting relief on the
PCRA petition alleging that trial counsel was ineffective for
failing to object to prejudicial remarks in the Commonwealth’s
closing regarding Appellant’s Fifth Amendment rights?
Appellant’s Brief at 5.6
____________________________________________
6 In his brief, Appellant argues approximately ten additional issues that he did
not include in his statement of questions presented. See Appellant’s Brief at
5, 14-17, 24-43. “[A]lthough this Court is willing to construe liberally
materials filed by a pro se litigant, pro se status generally confers no special
benefit upon an appellant. Accordingly, a pro se litigant must comply with the
procedural rules set forth in the Pennsylvania Rules of the Court.”
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003)
(citations omitted). Because Appellant failed to include these issues in his
statement of questions presented, they are waived. See Pa.R.A.P. 2116(a)
(stating that “[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”); see also
Commonwealth v. Hodge, 144 A.3d 170, 172 n.4 (Pa. Super. 2016).
Additionally, an appellant may not raise new issues in his reply brief.
Therefore, the issues that Appellant raised for the first time in his reply brief
are also waived. See, e.g., Commonwealth v. Fahy, 737 A.2d 214, 219
n.8 (Pa. 1999).
(Footnote Continued Next Page)
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Trial Counsel’s Failure to File Motions in Limine
In his first two issues, Appellant claims that trial counsel was ineffective
for failing to file motions in limine to exclude: (1) Appellant’s prior bad acts
and (2) the victim’s statement that Appellant shot him. Appellant’s Brief at
12-13, 49-50.
Appellant argues that trial counsel was ineffective for failing to seek the
exclusion of Appellant’s prior bad acts under Pa.R.E. 404(b). Appellant’s Brief
at 12-13. Specifically, Appellant contends that Officer Gorman’s testimony
was inadmissible under Pa.R.E. 404(b) because it tended to prove Appellant
acted in conformance with prior bad acts. Id. at 13.7
____________________________________________
We also note that Appellant presented eight additional issues in his Rule
1925(b) statement. See Rule 1925(b) Statement, 12/2/21, at 1-2. However,
in his brief on appeal, Appellant has not raised or presented any argument
relative to these other claims of error. Accordingly, Appellant has abandoned
those issues on appeal. See Pa.R.A.P. 2116(a), 2119(a); see also
Commonwealth v. McGill, 832 A.2d 1014, 1018 n.6 (Pa. 2003) (finding
waiver where the appellant abandoned claim on appeal).
7 Appellant also claims that trial counsel was ineffective for failing to present
the police property receipt from the night of Appellant’s arrest to rebut Officer
Gorman’s testimony. Appellant’s Brief at 12. Appellant asserts that trial
counsel and PCRA counsel suborned perjury and procedural misconduct. Id.Appellant additionally argues that Officer Gorman’s trial testimony was not
reliable because Officer Gorman was named in a Philadelphia Inquirer article
of Philadelphia Police Department officers who the Philadelphia District
Attorney’s Office considered to be untrustworthy. Id. at 13. Therefore,
Appellant contends that the Commonwealth violated his constitutional rights
by knowingly using false evidence to convict him. Id. Appellant did not raise
any of these claims in either his Rule 1925(b) statement or in the statement
of questions involved in his appellate brief. Therefore, they are waived. See
Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
(Footnote Continued Next Page)
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Appellant also argues that trial counsel was ineffective for failing to file
a motion in limine to exclude the victim’s statement that Appellant shot him
because its potential for unfair prejudice outweighed its probative value. Id.
at 49-50. Further, Appellant contends that the victim’s statement was of an
emotional nature and was likely to confuse and mislead the jury. Id. at 50.8
In reviewing the denial of a PCRA petition, our standard of review
is limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, 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. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
____________________________________________
are waived”), 2116(a) (stating that “[n]o question will be considered unless it
is stated in the statement of questions involved or is fairly suggested
thereby”).
8 Appellant also claims that trial counsel was ineffective for failing to (1)
present evidence regarding the discrepancies between the victim’s statement
and the condition of the crime scene; (2) request a limiting instruction; (3)
retain a medical expert to testify about how the victim’s substance use
affected his perceive the attack. Appellant’s Brief at 49-50. Appellant did not
raise any of these claims in either his Rule 1925(b) statement or in the
statement of questions involved in his appellate brief. Therefore, they are
waived. See Pa.R.A.P. 1925(b)(4)(vii), 2116(a).
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We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered). It is well settled that “[c]ounsel
will not be deemed ineffective for failing to raise a meritless claim.”
Commonwealth v. Washington, 927 A.2d 586, 608 (Pa. 2007) (citation
omitted). Additionally, counsel cannot be deemed ineffective for failing to
perform an act that counsel actually performed. See, e.g., Commonwealth
v. Gwynn, 943 A.2d 940, 946 (Pa. 2008) (concluding that the defendant’s
“claim that appellate counsel was ineffective for failing to raise trial counsel’s
ineffectiveness on direct appeal is meritless since it was, in fact, raised”).
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Here, Appellant has raised only bald assertions of prejudice regarding
the admission of this evidence. A PCRA petitioner has the burden to plead
and prove prejudice, i.e., “there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.”
Sandusky, 203 A.3d at 1043-44. Therefore, Appellant has failed to establish
that he is entitled to relief on these claims. See id.
Trial Counsel’s Failure to Impeach Presgrave
In his third issue, Appellant argues that trial counsel was ineffective for
failing to impeach Presgrave regarding his prior inconsistent statements.
Appellant’s Brief at 8-11. Specifically, Appellant noted that during trial,
Presgrave testified that his memory of the shooting was foggy because he had
taken drugs that day. Id. Appellant contends that trial counsel failed to
introduce the statement in which Presgrave denied that he was under the
influence of alcohol or drugs on the day of the shooting.9 Id. Appellant also
argues that trial counsel failed to impeach Presgrave regarding his inconsistent
statements about whether he saw the shooting and the description of the
shooter he gave to the police. Id.
The PCRA court addressed Appellant’s claim as follows:
____________________________________________
9 Appellant also asserts that Presgrave committed perjury and the
Commonwealth violated Appellant’s constitutional rights by knowingly
presenting or failing to correct Presgrave’s false testimony. Appellant’s Brief
at 8-11. Appellant did not raise any of these claims in either his Rule 1925(b)
statement or in the statement of questions involved in his appellate brief.
Therefore, they are waived. See Pa.R.A.P. 1925(b)(4)(vii), 2116(a).
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This issue is also without merit. Trial counsel cross-examined Mr.
Presgrave regarding his drug use on the day of the incident, his
drug habit in general, and open drug charges related to
methamphetamine. See [N.T. Trial, 5/17/18, at 71-77]. Mr.
Presgrave admitted that his ability to perceive events that day was
impaired and his memory was “foggy.” Id. at 78. [Trial counsel]
also cross-examined Mr. Presgrave regarding the victim’s
enemies. Id. at 81-82. At the February 2, 2021 PCRA hearing,
[trial counsel] recalled that the bulk of his cross-examination of
the witnesses and the victim “was about them using meth that
day. And [he] asked both of them about, ‘When you use meth,
you stay up for days, right? And how does staying up for days
doing drugs affect your ability to perceive events or to recall what
happened?’” [N.T. PCRA Hr’g, 2/2/21, at 33].
[Trial counsel’s] cross-examination at trial was reasonable and
Appellant has failed to prove a different alternative “offered a
potential for success substantially greater than the course actually
pursued.” Commonwealth v. Chmiel, 30 A.3d 1111, 1127 [(Pa.
2011)] (citing [Commonwealth v. Williams, 899 A.2d 1060,
1064 (Pa. 2006)] (citation omitted)). Therefore, Appellant is
unable to demonstrate this allegation merits PCRA relief.
PCRA Ct. Op. at 21.
Based on our review of the record, we agree with the PCRA court’s
conclusion. Trial counsel cross-examined Presgrave regarding his use of
methamphetamine and the effects it had on his perception and memory. Trial
counsel also questioned Presgrave about the inconsistencies between
Presgrave’s trial testimony and the statement he gave to the police. See N.T.
Trial, 5/17/18, at 71-78, 80-81. A petitioner cannot establish counsel was
ineffective for failing to perform an act that counsel actually performed. See
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Gwynn, 943 A.2d at 946. Therefore, Appellant is not entitled to relief on this
claim.10
Trial Counsel’s Failure to Contest Identification Evidence
In his fourth issue, Appellant argues that trial counsel was ineffective
for failing to adequately contest the identification evidence. Appellant’s Brief
at 18-23. Specifically, Appellant contends that trial counsel failed to
adequately cross-examine the officers regarding their compliance with police
procedures regarding the use of photo arrays. Id. at 22-23. He also claims
that trial counsel was ineffective for failing to retain an expert regarding
eyewitness identification. Id. at 21-23. Lastly, he argues that counsel11 was
ineffective for failing to preserve the photo array for appeal. Id. at 21.
Our Supreme Court has held that when this Court finds an issue waived
on direct appeal but then alternatively concludes that the issue is meritless,
the ruling on the merits is a valid holding that constitutes the law of the case
____________________________________________
10 As noted previously, the PCRA court concluded that Appellant was not
entitled to relief because he failed to prove that trial counsel’s chosen strategy
lacked a reasonable basis by showing the alternative not chosen offered
greater potential for success. PCRA Ct. Op. at 21. Although we affirm the
PCRA court’s ruling on a different basis, we note that it “is well settled that
where the result is correct, an appellate court may affirm a lower court’s
decision on any ground without regard to the ground relied upon by the lower
court itself.” Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa. Super.
2022) (citations omitted), appeal denied, --- A.3d ---, 153 WAL 2022, 2022
WL 6915277 (Pa. filed Oct. 12, 2022).
11 Appellant does not specify if he is referring to trial counsel, appellate
counsel, or both with respect to this claim.
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with respect to that issue. See Commonwealth v. Reed, 971 A.2d 1216,
1220 (Pa. 2009). Further, because the ruling on the merits of the issue is the
law of the case, it constrains this Court’s review of the same issue in
subsequent collateral proceedings, even if it is nested in an ineffective
assistance of counsel claim. See id. at 1220, 1227.
Here, the PCRA court concluded that this claim was meritless because
even though the photo array was not included in the certified record, a panel
of this Court affirmed the order denying Appellant’s motion to suppress on
direct appeal. See PCRA Ct. Op. at 22 (citing Brown, 2019 WL 6359023 at
*6).
Based on our review of the record, we agree with the PCRA court’s
conclusion. As noted by the PCRA court, a prior panel of this Court affirmed
the trial court’s order denying Appellant’s motion to suppress on the merits
instead of finding the claim waived. See Brown, 2019 WL 6359023 at *6.
Because this Court’s prior ruling on the merits of Appellant’s claim constitutes
the law of the case, Appellant cannot establish that either trial or appellate
counsel was ineffective regarding the suppression of the identification
evidence. See Reed, 971 A.2d at 1227 (affirming denial of PCRA claim that
trial counsel was ineffective because this Court previously held that the
underlying issue was meritless on direct appeal). Accordingly, Appellant is
not entitled to relief on this claim.
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Trial Counsel’s Failure to Object to Commonwealth’s Closing
In his fifth issue, Appellant argues that trial counsel was ineffective for
failing to object to prejudicial remarks in the Commonwealth’s closing
arguments. Appellant’s Brief at 45-48. Specifically, Appellant notes that
during her closing argument, the prosecutor stated that Appellant could not
account for his whereabouts at the time of the shooting. Id. at 45-47 (citing,
inter alia, N.T. Trial, 5/21/18, at 30). Appellant contends that this remark
inappropriately referred to Appellant’s exercise of his Fifth Amendment right
against self-incrimination. Id. at 45. Appellant claims that he was prejudiced
by trial counsel’s failure to object to the prosecutor’s remarks because those
remarks “injected a highly prejudicial personal opinion regarding [Appellant’s]
guilt[.]”12 Id. at 47.
Our Supreme Court has explained that
a claim of ineffective assistance grounded in trial counsel’s failure
to object to a prosecutor’s conduct may succeed when the
petitioner demonstrates that the prosecutor’s actions violated a
constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or the
Sixth Amendment right to a fair trial, or a constitutional interest
____________________________________________
12 Appellant additionally argues that trial counsel was ineffective for failing (1)
object to the prosecutor’s “material misrepresentation of the facts that was in
contradiction to [the] physical evidence[,]” (2) present exculpatory evidence
he had received in discovery, (3) argue inconsistencies in the
Commonwealth’s evidence during his closing, and (4) object to the trial court’s
denial of the jury’s request to review witness statements during deliberations.
Appellant’s Brief at 45-47. Appellant did not raise any of these claims in either
his Rule 1925(b) statement or in the statement of questions involved in his
appellate brief. Therefore, they are waived. See Pa.R.A.P. 1925(b)(4)(vii),
2116(a).
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such as due process. To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to
result in the denial of the defendant’s right to a fair trial. The
touchstone is fairness of the trial, not the culpability of the
prosecutor. Finally, not every intemperate or improper remark
mandates the granting of a new trial; reversible error occurs only
when the unavoidable effect of the challenged comments would
prejudice the jurors and form in their minds a fixed bias and
hostility toward the defendant such that the jurors could not weigh
the evidence and render a true verdict.
* * *
This Court has recognized that counsel are not constitutionally
required to forward any and all possible objections at trial, and
the decision of when to interrupt oftentimes is a function of overall
defense strategy being brought to bear upon issues which arise
unexpectedly at trial and require split-second decision-making by
counsel. Under some circumstances, trial counsel may forego
objecting to an objectionable remark or seeking a cautionary
instruction on a particular point because objections sometimes
highlight the issue for the jury, and curative instructions always
do.
Commonwealth v. Koehler, 36 A.3d 121, 144, 146 (Pa. 2012) (citations
omitted and formatting altered); see also Commonwealth v. Campbell,
260 A.3d 272, 280-81 (Pa. Super. 2021) (stating that “[a] prosecutor’s
comments must be examined within the context of defense counsel’s conduct,
and the prosecutor may fairly respond to points made by the defense.
Moreover, prosecutorial misconduct will not be found where comments were
based on the evidence or proper inferences therefrom or were only oratorical
flair” (citations omitted and formatting altered)), appeal denied, --- A.3d ---,
27 EAL 2022, 2022 WL 3053299 (Pa. filed Aug. 3, 2022).
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Further our Supreme Court has explained that “[t]he jury is presumed
to have followed the court’s instructions.” Chmiel, 30 A.3d at 1147 (citation
omitted).
Here the PCRA court explained:
During its final jury instruction, the court specifically advised the
jury that they were not to draw any adverse inference from the
fact that Appellant did not testify . . . . [N.T. Trial, 5/21/18, at
59.]
* * *
The court further advised that it was not Appellant’s burden to
prove his innocence, and that the statements made by counsel
during opening and closing statements were not evidence and
should not be considered as such. Id. at 59, 62-63, 66-67.
* * *
The court has determined that the statement made during closing
arguments by the prosecutor did not assault Appellant’s
constitutional protections pursuant to the Fifth Amendment’s
privilege against compulsory self-incrimination or the Sixth
Amendment’s right to a fair trial. Nor did the remark result in the
denial of Appellant’s right to a fair trial. Further, the court’s final
jury charge was curative of any impropriety.
Because the prosecutor’s remark was not of sufficient significance
to result in the denial of the defendant’s right to a fair trial, trial
counsel’s failure to object during the closing argument is
meritless. As such, Appellant’s claim of ineffectiveness in this
regard fails to satisfy the “arguable merit” prong of the [ineffective
assistance of counsel] test. Further, any effect of the prosecutor’s
remark was cured by the jury instruction given by the court prior
to jury deliberation.
PCRA Ct. Op. at 25-27 (some citations omitted).
Based on our review of the record, we agree with the PCRA court’s
conclusions. The prosecutor’s comment did not have the unavoidable effect
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of forming a fixed bias in the minds of the jurors such that it denied Appellant
a fair trial. See Koehler, 36 A.3d at 144. Further, the trial court instructed
the jurors that they could not make any adverse inferences from the fact that
Appellant did not testify, that the Commonwealth had the burden of proof,
and that counsel’s arguments were not evidence. See N.T. Trial, 5/21/18, at
59, 66-67. Jurors are presumed to follow the trial court’s instructions. See
Chmiel, 30 A.3d at 1147. For these reasons, we conclude that Appellant’s
claim that the prosecutor inappropriately referred to Appellant’s silence lacks
arguable merit, and counsel “will not be deemed ineffective for failing to raise
a meritless claim.” Washington, 927 A.2d at 608. Therefore, Appellant is
not entitled to relief on this issue. See Sandusky, 203 A.3d at 1044.
Ineffectiveness of PCRA Counsel
Lastly, Appellant has raised several claims of ineffective assistance of
PCRA counsel,13 alleging that PCRA counsel failed to raise and/or develop
various claims in their filings and failed to present evidence at the evidentiary
hearing. Appellant’s Brief at 8, 12, 14, 23-25, 45-46, 52; Appellant’s Reply
Brief at 1-2 (unpaginated).
Although Appellant has raised these claims for the first time on appeal,
our Supreme Court held in Commonwealth v. Bradley, 261 A.3d 381 (Pa.
2021), that a PCRA petitioner may, after a PCRA court denies relief and after
____________________________________________
13 Appellant refers to “PCRA counsel” in his brief without specifying if he is
referring to Attorney Cullen or Attorney Kenny. Therefore, we refer to
Attorney Cullen and Attorney Kenny collectively as “PCRA counsel.”
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obtaining new counsel or acting pro se, raise claims of PCRA counsel’s
ineffectiveness at the first opportunity to do so, even on appeal. See
Bradley, 261 A.3d at 405. Because Appellant’s appeal was pending when our
Supreme Court decided Bradley, it is applicable to this appeal. See
Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (stating
that “Pennsylvania appellate courts apply the law in effect at the time of the
appellate decision” (citations omitted)).
At the outset, we note that Appellant has not raised any of his claims of
ineffective assistance of PCRA counsel in his statement of the questions
involved. Therefore, we conclude that these claims are waived. See Pa.R.A.P.
2116(a) (stating that “[n]o question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby”); see also
Hodge, 144 A.3d at 172 n.4 (noting that a claim that the appellant argued in
his brief but failed to include in his statement of questions presented was
waived).
In any event, were we to reach these claims of error, we would be
constrained to find them waived due to Appellant’s failure to develop them
beyond bald assertions of PCRA counsel’s ineffectiveness. See Sandusky,
203 A.3d at 1044. Therefore, we conclude that it is not necessary to remand
this matter to the PCRA court for further consideration.14 Cf. Bradley, 261
____________________________________________
14 In his reply brief, Appellant argues that PCRA counsel was ineffective for
failing to challenge the legality of his sentence under Apprendi v. New
(Footnote Continued Next Page)
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A.3d at 402 (explaining that “to advance a request for remand [for further
development of the record, an appellant] would be required to provide more
than mere boilerplate assertions of PCRA counsel’s ineffectiveness” (citation
and quotation marks omitted)). Accordingly, Appellant is due no relief on
these issues.
For these reasons, we discern no error or abuse of discretion by the
PCRA court in denying Appellant’s petition. Therefore, we affirm the PCRA
court’s order.
Order affirmed.
____________________________________________
Jersey, 530 U.S. 466 (2000) and United States v. Alleyne, 570 U.S. 99(2013). Appellant’s Reply Brief at 2 (unpaginated). Although under Bradley,
Appellant may raise this ineffectiveness claim on appeal for the first time, we
conclude that it is waived for the reasons stated above.
We also note that the underlying legality of the sentence claims are meritless.
“‘[U]nder the Due Process Clause of the Fifth Amendment and the notice and
jury trial guarantees of the Sixth Amendment, any fact (other than prior
conviction) that increases the maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and proven beyond a reasonable
doubt.’” Commonwealth v. King, 234 A.3d 549, 560 (Pa. 2020) (quoting
Apprendi, 530 U.S. at 476 (additional citation omitted)). Here, the jury found
that the Commonwealth proved beyond a reasonable doubt that Appellant
inflicted serious bodily injury. See N.T. Trial, 5/21/18, at 103. Therefore,
Appellant’s sentence of twenty to forty years’ incarceration under 18 Pa.C.S.
§ 1102(c) is a legal sentence. See Apprendi, 530 U.S. at 476; King 234
A.3d at 560. Alleyne is not applicable to Appellant’s sentence because 18
Pa.C.S. § 1102(c) does not provide for a mandatory minimum sentence. Cf.
Alleyne, 570 U.S. at 111-16 (requiring that the jury must find that the
prosecution proved any facts that increase the mandatory minimum sentence
beyond a reasonable doubt).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2022
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