Com. v. Evans, K. ( 2021 )

J-S50038-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KAREEM EVANS, :
:
Appellant : No. 1155 EDA 2020
Appeal from the PCRA Order Entered May 4, 2020
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005531-2014
BEFORE: BENDER, P.J.E., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 7, 2021
Appellant, Kareem Evans, appeals from the May 4, 2020 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
The PCRA court provided the following background.
On March 13, 2015, following a trial by jury held jointly with co-
defendant, Qudre McMillan, [Appellant] was convicted of rape by
threat of forcible compulsion, 18 Pa.C.S. § 3121(a)(2),
involuntary deviate sexual intercourse [(IDSI)] by threat of
forcible compulsion, 18 Pa.C.S. § 3123(a)(2), robbery by
threatening another with or putting another in fear of immediate
serious injury, 18 Pa.C.S. § 3701(a)(1)(ii), robbery by taking
property from the person of another by force however slight, 18
Pa.C.S. § 3701(a)(1)(v), terroristic threat[s], 18 Pa.C.S. §
2706(a)(1), theft by unlawful taking, 18 Pa.C.S. § 3921(a),
criminal conspiracy to commit robbery by threatening another
with or putting another in fear of immediate serious injury and
criminal conspiracy to commit theft, 18 Pa.C.S. § 903(c).1 The
facts underlying Appellant’s convictions were summarized for
purposes of direct appeal as follows:
*Retired Senior Judge assigned to the Superior Court.
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1 McMillan was convicted of rape by threat of forcible
compulsion, [two counts of robbery], terroristic threats, …
theft by unlawful taking, … [and two counts of criminal
conspiracy]. He was sentenced to an aggregate term of
incarceration of twenty to forty years. His appeal from
th[e PCRA] court’s denial [of] his request for PCRA relief is
currently pending before the Superior Court at Docket No.
1199 EDA 2020.
The victim in this matter is a twenty-year-old resident of
Philadelphia and mother of two children. In August of
2014, the victim, a former home health aide, had begun to
engage in prostitution, advertising her services as an
“escort” on an internet website called “Backpage.”
On August 8, 2014, at approximately 3:00 a.m., the victim
received a telephone call from a man identifying himself as
“Kareem,” later identified as [Appellant]. The victim
agreed to meet [Appellant] in Bristol Borough, Bucks
County. Lorenzo Broggi drove the victim to the
prearranged location where she met [Appellant].
[Appellant] then led her on foot to another location, an
unoccupied residence located on Cedar Street in Bristol
Borough. After entering an unfurnished backroom of that
building, the victim plugged the charger for her cellphone
into a wall outlet.
The victim, already concerned about the change of
location, became frightened when she heard someone
jiggling the handle of the front door. When [Appellant] left
the backroom and headed for the front door, the victim
immediately used her cell phone to call Mr. Broggi, her
driver. When [Appellant] returned, he attempted to take
the phone from the victim but she was able to temporarily
regain control of it. The victim then attempted to leave
the building. When she began to do so, she was
unexpectedly confronted by a second man, later identified
as co-defendant Qudre McMillan. McMillan was armed with
a shotgun. He pointed it at her and told her not to move.
Raising both hands, the victim told McMillan that he could
take the ten dollars in her pocket and her phone. McMillan
continued to approach the victim, forcing her to retreat
into the backroom.
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Once the victim was again in the backroom, [Appellant]
physically restrained her from behind and placed his hand
over her mouth and nose preventing her from breathing.
Fearful for her life, she begged him not to kill her,
repeatedly telling him, “I have kids.” As she struggled
with [Appellant], she heard a car horn sounding.
[Appellant] told her “not to f---ing scream” and he would
let her live. She complied, and he released her. The
victim sat in the corner crying as [Appellant] and McMillan
attempted to access the phone to see if she had called
anyone. When asked if she had made a call, she told them
she had not.
[Appellant] then “dismissed” McMillan from the room and
proceeded to orally and vaginally rape the victim,
threatening to “punch [her] in [her] f---ing head” and kill
her if she did not do what she was told. [Appellant]
ejaculated inside her. As [Appellant] sexually assaulted
the victim, McMillan occasionally watched from his position
in the hallway. When [Appellant] then left the room,
McMillan entered. The victim continued to cry as McMillan
vaginally raped her. He ejaculated on her buttocks.
McMillan then left the room. While the victim waited for
her attackers to return, she heard a door shut. When
neither attacker returned after two minutes, the victim fled
the building.
Shortly after dropping the victim off at the Market Street
address where [Appellant] was waiting, Mr. Broggi
received a call from the victim. When he answered, the
victim did not speak to him. Mr. Broggi heard a scuffle in
the background. As he listened, he heard a male voice.
Mr. Broggi testified that he heard the victim crying and
yelling. He specifically heard her say that she did not have
any money with her. He also heard her tell someone to
leave her alone, and not to hurt her. The phone call
abruptly ended. Realizing that the victim was in trouble,
Mr. Broggi returned to Market Street in an attempt to
locate the victim. He circled the area sounding the horn of
his vehicle. Mr. Broggi’s efforts to locate the victim were
unsuccessful.
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At approximately 4:30 a.m., Arthur Carter and his son
were driving on Market Street approaching Cedar Street
when the victim ran out from Cedar Street and ran in front
of his van. When Mr. Carter lowered his window to speak
to her, she told him that he had been raped and that she
needed help. Mr. Carter testified that the victim was
hysterical, that she was crying, and that her hair looked
“like somebody had been dragging her around.” Her
clothes were askew and her underwear was pulled out of
her pants. Mr. Carter called 911 and remained with her
until assistance arrived. The victim was then transported
from the scene to Abington Memorial Hospital for a Sexual
Assault Examination. During that examination, vaginal
and rectal swabs were obtained.
A search warrant was obtained for the Cedar Street
address. During the search, the cell phone charger to the
victim’s telephone was found on the floor of the back room
of the residence. Police contacted the victim’s cell phone
carrier who informed them that the victim’s cell phone was
located at the intersection of Headley Street and Pine
Street in Bristol Borough, with an uncertainty of thirty-five
meters. [Appellant] was staying at [a residence on Pine
Street, which was] located at the intersection of Headley
and Pine Streets. That residence is approximately six
blocks away from Cedar Street where the assaults
occurred.
On August 9, 2014, police observed McMillan in the area of
Cedar Street. On that same date, police executed a search
warrant at [the Pine Street residence]. When police
arrived, [Appellant, his mother, and his fiancée were]
present. [Appellant was immediately arrested. He
subsequently provided a statement to police admitting to
the robbery.] While detectives were executing the search
warrant, [Appellant’s mother had a telephone conversation
on speaker with Appellant’s younger brother, Terrance
Farley, and McMillan, who were together at the time.
Later,] McMillan arrived at the residence. The victim’s cell
phone was found concealed beneath a seat cushion of a
sofa inside the residence. Kalesha Cruz, [Appellant]’s
fiancée, told police and later testified that she observed
McMillan give [Appellant] the cell phone on Friday, August
8, 2014.
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A photo array, which included an image of [Appellant] as
Photograph Number 2, was displayed to the victim. The
victim almost immediately pointed to Photograph Number
2, gasped, said, “That’s him. That’s the man who raped
me,” and began to cry.
The vaginal and rectal swabs of the victim were submitted
to the Pennsylvania State Police Bureau of Forensic
Services for serological and DNA analysis. The items were
determined to contain spermatozoa and the DNA of
[Appellant] and McMillan.
Trial Court Opinion[,] 1/6/16, at 2-5 (citations to notes of
testimony omitted).
Following the jury’s verdict, sentencing was deferred for
[Appellant] to be evaluated by the Sexual Offender Assessment
Board (SOAB) pursuant to 42 Pa.C.S. § 9799.24. Based upon
the findings of the SOAB and with the agreement of the parties,
th[e trial] court found [Appellant] to be a Sexually Violent
Predator. On July 13, 2015, he was sentenced to an aggregate
term of confinement of forty to eighty years.
On August 10, 2015, [Appellant] filed a notice of appeal. On
November 21, 2016, the Superior Court affirmed the judgment
of sentence. [See Commonwealth v. Evans, 159 A.3d 594(Pa. Super. 2016) (unpublished memorandum).] On December
14, 2016, [Appellant] filed a petition for allowance of appeal. On
April 19, 2017, [our] Supreme Court denied the petition. [See
Commonwealth v. Evans, 168 A.3d 1265 (Pa. 2017).]
On July 12, 2018, [Appellant timely] filed a pro se motion for
post-conviction relief.
PCRA Court Opinion (PCO), 6/19/20, at 1-4 (capitalization altered; some
citations omitted).
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The PCRA court appointed counsel,1 who filed a motion to amend
Appellant’s PCRA petition on December 3, 2018. The amended petition
distilled Appellant’s 57-page, pro se petition to five claims challenging the
constitutionality of Appellant’s registration under the Sex Offender
Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41,
and the effective assistance of trial counsel (1) “for not challenging the
testimony of Detective Eric Landamia and the exhibits referred to therein
(including C-31, C-32, and C-33) concerning cell phone usage and location
as the evidence was not authenticated”; (2) “for not objecting to the
admission of statements of [McMillan to Appellant’s mother] that were not[,]
and could not be[,] sufficiently redacted to exclude references to” Appellant,
thereby “violating his right to confront witnesses”; (3) “for not asking for a
limiting instruction when the Commonwealth introduced a statement of
[McMillan,] a co-defendant not subject to cross-examination[,] admitting
acts resembling the crime charged”; and (4) “for not moving to suppress the
substance of a telephone conversation[.]” Motion to Amend PCRA Petition,
12/3/18, at ¶¶ 2(a-d)-3. On January 28, 2019, the Commonwealth filed its
answer. The PCRA court held a hearing on August 30, 2019. At the hearing,
the PCRA court heard testimony from Appellant’s trial counsel. Appellant
1 The PCRA court initially appointed different counsel, who was subsequently
granted leave to withdraw based upon his prior representation of McMillan.
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and the Commonwealth filed post-hearing briefs. On May 4, 2020, the PCRA
court dismissed Appellant’s PCRA petition.
This timely-filed notice of appeal followed. Appellant complied with the
PCRA court’s order to file a concise statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The
PCRA court filed a Rule 1925(a) opinion. On appeal, Appellant presents the
following issues for our review:
1. Was counsel ineffective for failing to object to the admission
of evidence of a telephone conversation between [McMillan
and Appellant’s m]other[, which] violated [Appellant’s] right
to confrontation?
2. Was counsel ineffective for failing to object to the admission
of phone tower records that were not authenticated?
3. Did the cumulative effect of counsel’s errors deny … Appellant
effective assistance of counsel?
Appellant’s Brief at 3.
We begin by noting that, “[t]his Court’s standard of review from the
grant or denial of post-conviction relief is limited to examining whether the
lower court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d
516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,
356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received
ineffective assistance of counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
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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.”
Generally, counsel’s performance is presumed to be
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
relief, a petitioner must demonstrate that counsel’s performance
was deficient and that the deficiency prejudiced the petitioner. A
petitioner establishes prejudice when he demonstrates “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” ... [A] properly pled claim of ineffectiveness
posits that: (1) the underlying legal issue has arguable merit;
(2) counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or
omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted). “If an appellant fails to prove by a preponderance of the evidence
any of the [ineffective-assistance-of-counsel] prongs, the Court need not
address the remaining prongs of the test.” Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa. Super. 2009).
Appellant first claims that his trial counsel was ineffective for failing to
object or request a cautionary instruction prior to the introduction of
statements made by McMillan during a telephone conversation McMillan had
with Appellant’s mother. Appellant’s Brief at 11. Appellant claims these
failures resulted in a violation of his confrontation rights because McMillan
did not testify at trial. Id.We examine this issue subject to the following principles:
The Confrontation Clause guarantees a criminal defendant the
right to cross-examine witnesses. Ordinarily, a witness whose
testimony is introduced at a joint trial is not considered a
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witness ‘against’ a defendant if the jury is instructed to consider
the testimony only against a co-defendant. This principle is in
accord with the well-established presumption that jurors will
abide by their instructions. In Bruton [v. United States, 391
U.S. 123 (1968)], however, the United States Supreme Court
recognized that “there are some contexts in which the risk that
the jury will not, or cannot, follow instructions is so great, and
the consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored.” [Id.] at 135…. Accordingly, “[t]he Bruton Court held
that, if a non-testifying co-defendant’s confession directly and
powerfully implicates the defendant in the crime, then an
instruction to the jury to consider the evidence only against the
co-defendant is insufficient, essentially as a matter of law, to
protect the defendant’s confrontation rights.” [Commonwealth
v.] Brown, 925 A.2d [147,] 157 [(Pa. 2007)] (citing Bruton,
391 U.S. at 135–36…).
The United States Supreme Court examined the per se Bruton
rule in Richardson[ v. Marsh, 481 U.S. 200, 208 (1987)], and
emphasized its narrow scope. Therein, the Court held that the
“Confrontation Clause is not violated by the admission of a non-
testifying co-defendant’s confession with a proper limiting
instruction when ... the confession is redacted to eliminate not
only the defendant’s name, but any reference to his or her
existence.” Richardson, 481 U.S. at 211…. Consistent with the
High Court’s pronouncement and our own line of cases, we have
held that substituting the neutral phrase “the guy” or “the other
guy” for the defendant’s name is an appropriate redaction. See
Commonwealth v. Travers, … 768 A.2d 845, 851 ([Pa.]
2001).
Commonwealth v. Cannon, 22 A.3d 210, 217-18 (Pa. 2011) (some
citations omitted).
In [] Travers, … Thompson, Travers’ co-defendant, admitted to
the police his complicity in a murder and expressly made
reference to Travers in his statement. The trial court ordered
that the phrase “the other man” be substituted for any specific
reference to Travers by name.
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This Court held that such a change, in conjunction with a
cautionary instruction, was sufficient to protect Travers’
Confrontation Clause rights. We reasoned as follows:
The rationale employed in Gray [v. Maryland, 523 U.S.
(1998),] makes clear that the kind of redaction employed
here does not implicate Bruton concerns in the same way
as a statement that incriminates the defendant on its face,
either by actually naming him or by an obvious method of
deletion that no less certainly points the finger at him. The
redacted statement here neither referred to [Travers] by
name (the Bruton proscription) nor did it contain an
obvious indication of a deletion or an alteration that was
the functional equivalent of naming him (the Gray
proscription). Indeed, use of a neutral pronoun is not an
obvious alteration at all....
The “other man” reference employed here was certainly
not the sort of reference which, even were the confession
the very first item introduced at trial, obviously referred to
the defendant…. Instead, … the redacted statement could
become incriminating only through independent evidence
introduced at trial which established the defendant’s
complicity and, even then, only if it is assumed that the
jury ignored the court’s charge.
Travers, 768 A.2d at 851 (internal citations and quotations
omitted).
Commonwealth v. Miller, 819 A.2d 504, 512 (Pa. 2002).
In the instant case, the challenged statements occurred during the
testimony of Detective Timothy Carroll. At trial, Detective Carroll testified
that he was part of the team that executed the search warrant at the Pine
Street residence. N.T., 3/11/15, at 15. Appellant was present inside the
residence when officers arrived and was immediately placed under arrest.
Id. During the execution of the warrant but prior to McMillan’s subsequent
arrival, Appellant’s mother had a telephone conversation with McMillan.
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Detective Carroll instructed Appellant’s mother to put the call on speaker,
and Detective Carroll was then able to hear the conversation. Id. at 29.
Detective Carroll related the contents of the conversation as follows at trial:
[DETECTIVE CARROLL]: She spoke to [Appellant’s brother,
Terrance,] first and she told
Terrance to put [McMillan] on the
phone, and then I heard the
conversation between the two of
them.
[DEPUTY DISTRICT
ATTORNEY (DDA)]: And what did -- the person on the
phone that she said was
[McMillan], what did he say?
[DETECTIVE CARROLL]: He said that they had called a
website and paid for pussy and
that they had taken the woman’s
phone and money.
[DDA]: Your Honor, at this time no further
questions.
Id. at 30.
On cross-examination, McMillan’s counsel asked more questions about
the phone call:
[MCMILLAN’S COUNSEL]: [Y]ou had said that while
[Appellant’s mother] had her
phone on speaker phone, that you
heard … McMillan say that they
robbed her, took her phone and
her money; is that correct?
[DETECTIVE CARROLL]: That they took her phone and
money, yes.
***
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[MCMILLAN’S COUNSEL]: I believe at the preliminary hearing
you were asked while the phone
was on speaker phone if anyone
mentioned a robbery or rape. And
do you recall what your response
was to that?
[DETECTIVE CARROLL]: Not those words, no.
[MCMILLAN’S COUNSEL]: So[,] what words were used?
Because I believe you just testified
over the phone they mentioned
they robbed her and stole her
phone.
[DETECTIVE CARROLL]: That they took her phone and
money. They didn’t say, “We
robbed and raped her” on the
phone.
Id. at 40-41. Although the trial court offered Bruton-style cautionary
instructions prior to the admission of other statements, it did not provide
one in relation to this testimony. Appellant’s counsel did not request such
an instruction or object to the testimony. McMillan did not testify at trial.
At the PCRA hearing, trial counsel testified that he did not have a
specific recollection of this testimony or his reasoning for not objecting or
requesting a cautionary instruction that the evidence should only be
considered against McMillan.2 N.T., 8/30/19, at 17. In dismissing this claim,
the PCRA court found that “the statement does not explicitly reference or
2 There was no defense file available for counsel to review prior to the PCRA
hearing. At the time of Appellant’s trial, counsel practiced law with a
partner. Thereafter, counsel left that practice and Appellant’s file remained
with counsel’s former partner. The partner died prior to the PCRA hearing
and the file could not be located. See N.T., 8/30/19, at 9-10.
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facially incriminate [Appellant, and t]here is therefore no confrontation
clause violation.” PCO at 11. Thus, the PCRA court concluded that counsel
could not be ineffective for failing to lodge a frivolous objection. Id. at 11-
12. As to counsel’s failure to request a cautionary instruction, the PCRA
court dismissed this claim because Appellant failed to prove prejudice in light
of his pre-trial statement to police admitting to the robbery. Id. at 12.
On appeal, Appellant argues that “the only person the pronoun could
refer to was … Appellant.” Appellant’s Reply Brief at 5. We disagree.
McMillan’s statement did not reference Appellant by name, and given that
McMillan was with Appellant’s brother at the time he was speaking to
Appellant’s mother, it is not obvious whether the “they” to which McMillan
referred included Appellant’s brother, Appellant, someone else, or some
combination thereof. Rather, we conclude that the use of “they” falls under
the category of neutral pronouns that do not run afoul of Bruton or Gray.
However, such a conclusion does not necessarily foreclose the possibility
that Appellant’s right to confrontation was violated.
When incrimination is merely inferential, the [Supreme C]ourt
noted, “it is a less valid generalization that the jury will not likely
obey the instruction to disregard the evidence.” [Richardson,
481 U.S. at 208]. Where such linkage was required to implicate
the defendant, the Court held, a proper limiting instruction was
sufficient to satisfy Bruton. See Gray, 523 U.S. at 195…
(“Richardson placed outside the scope of Bruton’s rule those
statements that incriminate inferentially.”).
Travers, 768 A.2d at 848; see also Commonwealth v. Epps, 240 A.3d
640, 651 (Pa. Super. 2020) (“Because [the co-defendant’s] statement did
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not directly reference Epps and the court issued an appropriate cautionary
instruction, there was no confrontation violation.”). Thus, our Supreme
Court concluded that the neutral redaction employed in Travers,
combined with the trial court’s accurate and repeated
cautionary charge, sufficed to protect [Travers’] Sixth
Amendment right to confrontation. Since the statement was not
powerfully incriminating on its face, the general rule to which
Bruton and Gray are a limited exception, i.e., the almost
invariable assumption of the law that jurors follow their
instructions, applies and controls.
Travers, 768 A.2d at 851 (citations, internal quotation marks, and footnote
omitted; emphasis added).
Here, the statement included a neutral reference to another party
instead of “powerfully incriminating [Appellant] on its face.” Id. However,
the trial court did not instruct the jury that it could only consider the
statement against McMillan. Thus, under the foregoing jurisprudence, the
PCRA court erred in concluding that Appellant’s confrontation rights were not
violated. As such, Appellant satisfied his burden of proving that his
underlying claim has arguable merit.
Turning to the prejudice prong, the jury also heard Appellant’s pre-trial
statement to police that “[w]e robbed her.” N.T., 3/11/15, at 72. Given
Appellant’s pre-trial statement and the additional overwhelming evidence of
Appellant’s guilt, even if the jury had not heard the contents of McMillan’s
phone conversation with Appellant’s mother, the reference to an additional
person had been removed, or the jury had received a proper cautionary
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instruction, we cannot say that there is a reasonable likelihood that the
outcome of the trial would have been different. Thus, the PCRA court’s
conclusion that Appellant failed to establish prejudice is supported by the
record, and the PCRA court did not err in dismissing this claim. See
Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009) (“[W]e
may affirm the decision of the [PCRA] court if there is any basis on the
record to support the [PCRA] court’s action; this is so even if we rely on a
different basis in our decision to affirm.”) (citation omitted).
Appellant next claims that trial counsel was ineffective for not
objecting to Detective Landamia’s testimony about the victim’s cell phone
records based on the Commonwealth’s failure to authenticate the records.
Appellant’s Brief at 13-15. In dismissing this claim, the PCRA court
concluded that Appellant failed to prove all three prongs of the ineffective-
assistance-of-counsel test. PCO at 6.
At the PCRA hearing, trial counsel explained that they
were not disputing that these people were at the place at the
time that the crime was alleged, and that they made the calls. …
I remember discussing it, thinking about it and talking about it
with co-defendant’s counsel and determining that it wasn’t
relevant to our defense. Whether they were authentic or not
wasn’t really the issue we were trying to present to the jury at
that time.
N.T., 8/30/19, at 14; see also id. at 13, 18 (testifying that after discussing
with Appellant and co-defendant’s counsel, trial counsel did not believe it
was relevant to Appellant’s defense that the sexual acts were consensual).
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After reviewing the evidence and the defense strategy, trial counsel decided
not to object to the testimony because he did not believe that the cell phone
evidence prejudiced Appellant. Id. at 16.
On appeal, Appellant argues that counsel should have objected to the
evidence as inadmissible, regardless of whether it was prejudicial.
Appellant’s Brief at 14 (arguing “there is no excuse for not objecting to
inadmissible evidence as one is never certain what importance a jury will
attach to any particular piece of evidence”). At the PCRA hearing, trial
counsel explained that “[t]hat’s not necessarily my strategy, to make
objections to everything that could possibly be objected to throughout the
course of a trial, no. But it was certainly thought out in a way that, you
know, made sense in terms of the way we presented our defense in the
case.” N.T., 8/30/19, at 13-14.
Upon review, the PCRA court’s conclusion that Appellant failed to
establish that trial counsel’s actions lacked an objective reasonable basis is
supported by the record. Thus, the PCRA court did not err in dismissing this
claim.
Finally, Appellant argues that the cumulative effect of counsel’s
ineffectiveness, as it relates to the prior two claims, requires a new trial.
Appellant’s Brief at 15-17. Appellant failed to raise this claim in his PCRA
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petition. Accordingly, it is waived.3 See Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
Based on the foregoing, we affirm the order of the PCRA court.
Order affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/21
3 Even if not waived, we agree with the PCRA court that, “since each of the
individual claims lack merit, there is no ‘cumulative effect’ of ineffective
assistance. ‘[N]o number of failed ineffectiveness claims may collectively
warrant relief if they fail to do so individually.’ Commonwealth v. Reid, …
99 A.3d 470, 520 (Pa. 2014) (citation omitted).” PCO at 12.
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