Com. v. Palmer, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEFFREY PALMER :
:
Appellant : No. 2738 EDA 2019
Appeal from the PCRA Order Entered August 29, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002288-2015
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 14, 2020
Jeffrey Palmer (Appellant) appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
A prior panel of this Court summarized the facts and procedural history:
On July 19, 2014, residents of the 6000 block of North
Beechwood Street held a block party. At around 11
p.m., while the party was winding down, Malik Hairston
heard several men yelling, ‘where gray tank top at?’
Around the same, [sic] Octavious Thornton, also
known as ‘Ta,’ wearing a gray tank top, was outside
his mother’s house at [the] 6088 block of North
Beechwood Street. While Thornton was moving tables
and chairs from the party into the house, a group of
men approached. One of the men said, ‘let me holler
at you,’ in which Thornton replied, ‘I don't know you
from a can of paint.’ Another male in the group asked
Thornton, ‘What’s up? What’s up?’ Then a man in a
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* Former Justice specially assigned to the Superior Court.
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red polo shirt advised Thornton, ‘It's just a yes or no
question.’ As Thornton walked away and made his way
into the house, the group of men grabbed him from the
porch steps, and began punching him. More men soon
gathered, and up to ten or twelve men punched
Thornton and pulled him into the street. Thornton
placed his back against a car and covered his body with
his arms to protect himself from the barrage of
punches.
Thornton’s mother, sister (Daria), and Hairston,
attempted to intervene. After Hairston struck one
man, and pulled him off Thornton, the group of men
attacked Hairston. Hairston grabbed a rake and swung
it at some of the attacking men. After Hairston swung
the rake, a voice among the attacking men yelled,
‘Shoot that n*gger.’ Immediately thereafter, gunshots
rang out. To avoid being shot, Hairston ran into the
house at [the] 6088 block of North Beechwood through
the front door. He was the only person who fled into
the house. After firing the shots, the shooter jumped
into a gray vehicle and drove off.
Thornton told police that the shooter had a revolver,
and described him as a black male, dark skin, 25 years
old, wearing a red polo shirt, approximately 5′ 6″ to 5′
8″, with a stocky build. Thornton’s sister Daria also
stated that the shooter wore a red shirt. She further
testified that no one else involved in the fight had a red
shirt on. Following the shooting, both Thornton and
Hairston identified [Appellant] from a photographic
array as the male in the red polo shirt.
Almost immediately following the shooting, at or
around 11:20 p.m., Police Officer James Butler saw a
silver vehicle speeding southbound on Ogontz Avenue,
about six to eight blocks from the shooting on
Beechwood. Officer Butler and Officer Mark Austin
attempted to pursue the vehicle, but lost sight of it.
Not long after Officer Butler first spotted the speeding
vehicle on Ogontz Avenue, a security guard at Albert
Einstein Hospital—just a few blocks from Ogontz
Avenue—heard tires screeching and witnessed a gray
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vehicle speeding up the hospital’s emergency
entrance. After the vehicle appeared to hit a guardrail,
the passenger side window lowered, and the vehicle
backed up and drove off. When a security guard
inspected the guardrail for damage, he saw a gun lying
nearby in the grass.
Roughly a minute after losing sight of the vehicle on
Ogontz Avenue, Offices Butler and Austin responded to
Einstein Hospital for a report of a gunshot victim, later
identified as Thomas Fields, who had just arrived.
Fields was pronounced dead at 11:40 p.m. The cause
of death was a gunshot wound to the neck and the
manner of death was homicide. A bullet entered the
right side, upper back, near the neck. It traveled
through the neck, striking the cervical spine, and
perforated the right vertebral arteries, which provide
blood to the brain. The bullet exited the front of the
neck.
Upon their arrival at the hospital, Officers Butler and
Austin noticed the same vehicle that they had just
observed speeding on Ogontz parked in front of the ER.
The passenger door was ajar, and a large amount of
blood was on the vehicle’s interior. The officers
secured the vehicle, believing that it was a crime
scene. Blood was subsequently found on the vehicle’s
seat, armrest, floor, door panel, and console. The front
passenger side wheel was also flat.
Officer Austin then entered the hospital to locate the
driver of the silver/gray vehicle. In the ER lobby, he
found [Appellant] exiting the bathroom. There,
[Appellant] informed the officer that an altercation
took place at a cookout and someone there was shot.
The police later took [Appellant] to the Homicide Unit
for questioning.
On July 20, 2014, [Appellant] gave a statement to
police, in which he told detectives that he was present
when a shooting occurred at Beechwood. He said that
he saw a fight break out at a block party and then
heard gunshots. He also said that after the gunshots,
Fields, his friend, said to him that he could not
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breath[e]. [Appellant] stated that Fields had asthma.
He claimed that after he and Fields got into his car to
drive to the hospital, Fields coughed up blood.
Police later recovered a security video from Einstein
Hospital. On the night of the shooting, at
approximately 11:25:28, the camera captured
[Appellant’s] vehicle driving up to the hospital’s
emergency room ramp. At 11:26:14, the video
showed [Appellant’s] vehicle, both doors open, pulling
up outside the ER. [Appellant] existed [sic] the vehicle
wearing a red polo shirt. Roughly thirty seconds later,
[Appellant] removed the shirt, and threw it over a
guardrail past where his vehicle was parked. A few
minutes later, [Appellant] retrieved the shirt and
tossed it into the trunk of the vehicle.
The police later recovered the gun that was lying near
the hospital guardrail. The gun, a revolver, held two
fired cartridge casing (“FCCs”) and three live rounds—
all of which were .38 caliber and of the same
manufacture. A total of four ballistic pieces were
recovered from the shooting scene at 6088 North
Beechwood Street, including two copper fragments
found on the property, a lead fragment in the outside
wall near the doorframe, and a projectile in the front
door, five inches south of the doorknob. Officer
Raymond Andrejczak, of the Police Firearms
Identification Unit, concluded to a reasonable degree
of scientific certainty that both copper fragments, the
projectile, and both FCCs in the gun were all fired in
and from the subject revolver. The remaining piece
(the lead fragment) was unsuitable for microscopic
comparison, but was consistent with a 9 millimeter/.38
caliber projectile. The subject revolver was incapable
of firing a 9 millimeter bullet.
Trial Court Opinion, 4/18/16, at 2–5 (record citations omitted).
On August 4, 2014, police arrested Appellant for the murder of
Fields. After a January 28, 2016 trial, a jury found Appellant guilty
of [first-degree murder, attempted murder, unlawful possession
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of a firearm, and possession of an instrument of crime.1] The trial
court [immediately sentenced Appellant to life in prison without
parole]. On January 29, 2016, Appellant filed a post-sentence
motion challenging the weight and sufficiency of the evidence.
The trial court denied that motion on February 11, 2016.
Commonwealth v. Palmer, 861 EDA 2016, at *1-4 (Pa. Super. May 17,
2017) (unpublished memorandum). Appellant filed a timely appeal. This
Court affirmed his judgment of sentence on May 17, 2017, see id., and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on January 3, 2018. Commonwealth v. Palmer, 285 EAL 2017 (Pa.
Jan. 3, 2018).
On December 20, 2018, Appellant filed a pro se PCRA petition.2 See
Motion for Post Conviction Collateral Relief, 12/20/18, at 4. The PCRA court
appointed PCRA counsel for Appellant, who filed an amended petition on
December 31, 2018. In his amended petition, Appellant raised various claims
of ineffective assistance of counsel. On July 9, 2019, the Commonwealth filed
a motion to dismiss Appellant’s PCRA petition. The PCRA court issued notice
of its intent to dismiss Appellant’s petition without a hearing pursuant to Rule
907 of the Pennsylvania Rules of Criminal Procedure on July 23, 2019.
Appellant filed a timely response to the PCRA court’s Rule 907 notice on
August 9, 2019. On August 29, 2019, the PCRA court dismissed Appellant’s
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1 18 Pa.C.S.A. §§ 2502(a), 901, 6106 and 907.
2 On the same date, Appellant’s trial counsel filed a separate PCRA petition on
Appellant’s behalf. Because Appellant’s trial counsel was not appointed to
represent Appellant through his collateral proceedings, the PCRA court did not
consider this filing or any of the claims raised therein.
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petition. Appellant timely appealed to this Court. The PCRA court did not
order Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925, and Appellant did
not file one.
On appeal, Appellant presents four issues for our review:
1. Did the lower court err by dismissing Appellant’s PCRA Petition
without [a] hearing where trial counsel was ineffective for
failing to object to the lower court’s erroneous vital body part
instruction?
2. Did the lower court err by dismissing Appellant’s PCRA Petition
without [a] hearing where trial counsel was ineffective for
failing to object to the lower court’s accomplice liability
instruction?
3. Did the lower court err by dismissing Appellant’s PCRA Petition
without [a] hearing where trial counsel was ineffective for
failing to move to suppress the identifications in Appellant’s
case?
4. Did the lower court err by dismissing Appellant’s PCRA Petition
without [a] hearing where trial counsel was ineffective for
presenting a closing argument that confused the issues, was
prejudicial, and unrelated to [Appellant’s] case?
Appellant’s Brief at 2 (suggested answers omitted).
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and
citations omitted). “To be entitled to PCRA relief, [an] appellant must
establish, by a preponderance of the evidence, [that] his conviction or
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sentence resulted from one or more of the enumerated errors in 42
Pa.C.S.[A.] § 9543(a)(2)[.]” Id.
All four of Appellant’s claims assert instances of ineffective assistance of
trial counsel (Counsel). With respect to ineffective assistance of counsel
claims, our Supreme Court has stated:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d
655, 664 (Pa. 2007). To overcome this presumption, a petitioner
must establish that: (1) the underlying substantive claim has
arguable merit; (2) counsel did not have a reasonable basis for
his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel's act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on appeal.
See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
2007) (explaining that “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to
this Court”). A petitioner’s failure to satisfy any prong of this test
is fatal to the claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified).
Vital Body Part Instruction: Failure to Object
In his first ineffectiveness claim, Appellant argues that Counsel was
ineffective for failing to object to the trial court’s “erroneous” jury instruction
regarding the “use of a deadly weapon on the ‘victim’s body’ without clarifying
that the victim could only be the intended target.” Appellant’s Brief at 9.
Appellant contends that Counsel should have objected to the vital body part
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jury instruction, asserting that the jury was misled into believing that they
could infer specific intent3 through the use of a deadly weapon on a vital body
part despite the Commonwealth’s evidence reflecting transferred intent. 4 Id.With respect to jury instruction challenges, our Supreme Court has held:
When reviewing a challenge to jury instructions, the reviewing
court must consider the charge as a whole to determine if the
charge was inadequate, erroneous, or prejudicial. The trial court
has broad discretion in phrasing its instructions, and may choose
its own wording so long as the law is clearly, adequately, and
accurately presented to the jury for its consideration. A new trial
is required on account of an erroneous jury instruction only if the
instruction under review contained fundamental error, misled, or
confused the jury.
Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009) (internal
citations and quotations omitted).
Here, the trial court instructed the jury that it could “infer that the
defendant had the specific intent to kill” if they believed “that the defendant
intentionally used a deadly weapon on a vital part of the victim’s body.” N.T.,
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3 In order to sustain a conviction for first-degree murder, the Commonwealth
must prove: 1) the defendant acted with a specific intent to kill; 2) a human
being was unlawfully killed; 3) the person accused did the killing; and 4) the
killing was done with deliberation. 18 Pa.C.S.A. § 2502(d). The use of a
deadly weapon upon a vital part of the victim’s body is sufficient to prove the
specific intent required for a conviction of first-degree murder.
Commonwealth v. Hall, 701 A.2d 190, 196 (Pa. 1997).
4 “Pursuant to the doctrine of transferred intent, the intent to murder may be
transferred where the person actually killed is not the intended victim.”
Commonwealth v. Jones, 912 A.2d 268, 279 (Pa. 2006) (citing 18 Pa.C.S.A.
§ 303(b)(1)).
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1/28/16, at 136-37. The court also instructed the jury that it could find
specific intent through the doctrine of transferred intent:
Because the Commonwealth has alleged while the defendant
intended to kill or actually conspired with the intent to kill Malik
Hairston, he actually caused the death of Thomas Fields.
If you find beyond a reasonable doubt that the defendant intended
to kill or conspired or was an accomplice with the intent to kill
Malik Hairston, and was acting with that intent at the time that he
killed Thomas Fields, you may find that the defendant acted with
the specific intent to kill under what the law calls the doctrine of
transferred intent.
What this means is that if the actual result that the defendant
intended differs from what he contemplated, only because a
different person than the one actually intended was killed, the
element of causing the death with specific intent to kill is still
established.
Id. at 137-38.
Appellant believes that the jury could only infer specific intent to kill
from the use of a deadly weapon on a vital part of the victim’s body if the
actual victim was the intended victim. This argument fails. In
Commonwealth v. Jones, 912 A.2d 268 (Pa. 2006), our Supreme Court
addressed an identical argument. In rejecting the appellant’s claim, the Court
concluded, “[t]he very purpose of the transferred intent instruction is to
permit appropriate inferences of malice and specific intent to flow to an
unintended victim.” Id. at 280. In the present case, the facts establish that
Appellant intended to kill Hairston and that he possessed both the malice and
the specific intent to do so. “Transferring this intent to an unintended victim
is permitted by statute and easily meets the requirement of a rational
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connection between the proven facts and the inference.” Id. Thus,
Appellant’s claim lacks arguable merit and his first assertion of ineffective
assistance of counsel fails.
Accomplice Liability Instruction: Failure to Object
In his second ineffectiveness claim, Appellant contends that Counsel was
ineffective for failing to object to the trial court’s jury instruction on accomplice
liability because “there was no evidence of a second shooter or accomplice
introduced at trial” and “[i]n the absence of any evidence of another shooter
or accomplice, . . . the addition of the accomplice liability charge served no
purpose but to confuse the jury on the issues.” Appellant’s Brief at 20-21.
The trial court instructed as follows:
Now, there is a second and separate way in which a defendant can
be proved liable for conduct of another person or persons. This is
when the defendant is an accomplice of the person who actually
commits the crime. There is a basic difference between being an
accomplice and being a conspirator.
In a conspiracy people have to act jointly. To be an accomplice,
a person does not have to agree to help someone else. The person
is an accomplice if he on his own acts to help the other person
commit a crime. More specifically, the defendant is an accomplice
of another for a particular crime if the following two elements are
proved beyond a reasonable doubt: That the defendant had the
intent of promoting or facilitating the commission of the crime;
and that the defendant solicits, commands, encourages or
requests the other person to commit the crime; or aids, agrees to
aid or attempts to aid the other person in planning or committing
it.
It is important to understand that a person is not an accomplice
merely because he is present where the crime is committed or
knows that a crime is being committed. A person who is an
accomplice will not be responsible for a crime, if and only, if the
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person, before the other person commits the crime either stops
his own efforts to promote or facilitate the commission of the
crime and wholly derives his previous efforts of the effectiveness
in the commission of the crime, or gives timely warning to law
enforcement authorities, or otherwise makes a proper effort to
prevent the commission of crime.
Now I’ve just given you the general rules of how a person can be
responsible for a crime that was committed by another. There are
special rules for the crime of first degree murder which is one of
the crimes charged here. . . .
* * *
A person can also be guilty of the death personally when the
Commonwealth proves beyond a reasonable doubt that he was an
accomplice. Remember, to be an accomplice, the defendant must
have been intended that a first degree murder occurred and that
the defendant solicits, commands, encourages or requests the
other person to commit it, or aids, agrees to aid, or attempts to
aid the other person in planning or committing.
To sum up, a defendant may not be found guilty of the crime of
first degree murder where the defendant himself, as a conspirator
or as an accomplice, has the specific intent or goal of bringing
about a murder in the first degree.
N.T., 1/28/16, at 125-28.
According to Appellant, this accomplice liability instruction served no
purpose “but to confuse the jury on the issues.” Appellant’s Brief at 21. The
Commonwealth argues that Appellant’s claim completely disregards that the
evidence at trial established that, although the Commonwealth argued that
Appellant was the shooter, additional evidence was presented “from which the
jury could have found that [Appellant] was an accomplice to another person
who was the shooter; namely, that the shots were fired from a crowd of
approximately ten of [Appellant’s] cohorts who were beating Thornton.”
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Commonwealth’s Brief at 14. The Commonwealth further contends that
defense counsel alluded throughout trial and during closing argument to the
possibility that somebody else was the shooter. Id. (citing N.T., 1/25/16, at
139; N.T., 1/18/16, at 52, 135-37).
The record supports the Commonwealth’s position that Appellant’s
conviction for first-degree murder was premised on two theories: Appellant
was the shooter; or Appellant was an accomplice to another person who was
the shooter. There is no factual predicate to Appellant’s argument that the
trial court improperly gave an accomplice liability instruction or that the
instruction confused the jury on the issues. As such, Appellant cannot prevail
on his claim that Counsel was ineffective for failing to object to this charge.5
Motion to Suppress
In his third ineffectiveness claim, Appellant asserts that the trial court
was ineffective for failing to file a motion to suppress the pre-trial
identifications of Appellant by Hairston and Thornton. Appellant’s Brief at 22.
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5 In a footnote, Appellant raises an alternative argument, suggesting that “if
this Court finds that [trial counsel’s] objection was sufficient to preserve the
issue for appellate review, then Appellant respectfully avers that [trial counsel]
was ineffective as appellate counsel for failing to raise this meritorious claim
on direct appeal.” Appellant’s Brief at 21 n.5. Appellant has failed to develop
this argument with citation to and analysis of relevant legal authority.
Accordingly, we find this claim waived. See Pa.R.A.P. 2119(a); see also
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that
“where an appellate brief fails to provide any discussion of a claim with citation
to relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived”).
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According to Appellant, the identifications were “based on an unduly
suggestive procedure and uncertain and thus should have been suppressed.”
Id. at 24.
“When . . . an assertion of ineffective assistance of counsel is based
upon the failure to pursue a suppression motion, proof of the merit of the
underlying suppression claim is necessary to establish the merit of the
ineffective assistance of counsel claim.” Commonwealth v. Carelli, 546
A.2d 1185, 1189 (Pa. Super. 1988) (citations omitted).
An appellate court must assess the reliability of an out-of-court
identification by examining the totality of the circumstances.
Commonwealth v. Johnson, 139 A.3d 1257, 1278 (Pa. 2016). The mere
fact that a witness was unsure about the identification does not mean that
later identifications were unreliable—initial equivocation does not render later
identifications constitutionally unreliable per se. Id. A pre-trial identification
violates due process only when the facts and circumstances demonstrate that
the identification procedure was so impermissibly suggestive that it gave rise
to a very substantial likelihood of irreparable misidentification. Johnson, 139
A.3d at 1278.
The PCRA court found no merit to Appellant’s ineffectiveness claim,
explaining:
According to the Petitioner, the photo array identification
procedure used by Homicide Detectives in this case was unduly
suggestive because the detectives asked the witnesses whether
they “recognize anyone” in the arrays, and did not inform the
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witnesses that they were unsure if the suspect’s photo was
included. The detectives’ questions were not suggestive, as they
did not direct the witnesses’ attention to a specific photograph nor
did detectives indicate whether [Appellant’s] photograph was
included in any array. During Hairston’s interview, Detective Pitts
and Fetters asked him the following question: “I am showing you
a photo array, do you recognize anyone?” Detective Harkins and
Burns asked Thornton a similar question: “I am showing you a
photograph array consisting of eight like males, do you recognize
any of these males?” These questions did not suggest to either
witness that they should choose [Appellant’s] photograph and
were properly phrased to obtain a reliable identification.
Thornton confirmed at trial that during his interview, he circled
[Appellant’s] photograph, identifying him as the shooter. While
Hairston testified at trial that detectives forced him to circle
[Appellant’s] photo, Detective Fetters denied this coercion, and
the jury chose to accept Detective Fetters’ testimony.
PCRA Court Opinion, 8/29/19, at 6-7 (citations omitted).
Further, the PCRA court rejected Appellant’s attempt to attack the
detectives’ failure to follow the Philadelphia Police Department’s “double blind
procedure” for conducting photo arrays. The court explained:
This argument is illogical. As [Appellant] establishes in his
Amended Petition, the detectives could not have violated these
guidelines because they were not put into practice until November
2014, more than four months after Thornton and Hairston were
interviewed. [Appellant] cannot fault the Homicide Detectives for
failing to follow a procedure that had not been implemented at the
time of the identification.
Id. at 7.
Given these determinations, the PCRA court concluded that Appellant
failed to establish that a motion to suppress Thornton and Hairston’s
identification of Appellant would have been successful, and trial counsel
cannot be found ineffective for failing to file such a motion.
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The record supports the PCRA court’s conclusions that any attempt to
suppress Thornton or Hairston’s identification testimony would be meritless.
The PCRA court recognized that the jury credited the testimony of Detective
Fetters over the testimony of Hairston, in which he alleged coercion by the
detectives. We cannot disturb this determination. See Commonwealth v.
Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility
determinations are solely within the province of the PCRA court). Accordingly,
because Counsel cannot be deemed ineffective for failing to file a meritless
suppression motion, Appellant’s third issue fails. See Commonwealth v.
Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc) (explaining that
counsel cannot be deemed ineffective for failing to pursue a meritless claim).
Closing Argument
In his fourth and final ineffectiveness claim, Appellant argues that
Counsel was ineffective because his closing arguments “confused the issues
for the jury, prejudiced Appellant, and was unrelated to Appellant’s case.”
Appellant’s Brief at 30. Specifically, during closing arguments, Counsel read
a poem to the jury to provide an example of reasonable doubt. See N.T.,
1/28/16, at 68-71. Appellant contends that the “strangeness of counsel’s
ending to his closing argument likely undermined the entirety of his closing,
and any arguments made on [Appellant’s] behalf.” Appellant’s Brief at 32.
The PCRA court rejected Appellant’s claim of Counsel’s ineffectiveness,
finding that it failed to demonstrate prejudice. The court noted that Counsel’s
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example properly illustrated the concept for reasonable doubt, and was not a
misstatement of the law. PCRA Court Opinion, 8/29/19, at 10. Moreover, the
court emphasized that, following closing arguments, it instructed the jury to
only use the court’s instructions to assist in their deliberations, and cautioned
the jury that counsel’s arguments were not facts nor law. Id. (citing N.T.,
1/28/16, at 22, 71). The PCRA court concluded that because Counsel’s
definition was an accurate statement of the law and the jury was cautioned to
only consider the law as explained by the court, Appellant was not prejudiced
by Counsel’s inclusion of the poem. Id.As we stated above, “counsel is presumed to have been effective and
that the petitioner bears the burden of proving counsel’s alleged
ineffectiveness.” Wholaver, 177 A.3d at 144. Further, “[w]ith regard to
‘reasonable basis,’ the PCRA court ‘does not question whether there were
other more logical courses of action which counsel could have pursued; rather,
[the court] must examine whether counsel’s decisions had any reasonable
basis.’” Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014). “Where
matters of strategy and tactics are concerned, ‘[a] finding that a chosen
strategy lacked a reasonable basis is not warranted unless it can be concluded
that an alternative not chosen offered a potential for success substantially
greater than the course actually pursued.’” Commonwealth v. Spotz, 84
A.3d 294, 311–12 (Pa. 2014).
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Here, although Appellant may not agree with the strategy pursued by
Counsel during closing arguments, he has failed to establish that Counsel was
ineffective. The record supports the PCRA court’s conclusion that Counsel’s
closing argument was an accurate statement of law, and the jury was properly
instructed to only consider the court’s instructions and definitions during their
deliberation. As such, Appellant’s fourth and final claim of ineffective
assistance of counsel fails.
As discussed above, Appellant has not demonstrated that any of his
individual claims of ineffective assistance of counsel have merit. Accordingly,
because we find no merit to Appellant’s issues, we conclude that the PCRA did
not err in dismissing Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/20
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