Com. v. Brown, R.

J-S04040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHEEM BROWN :
:
Appellant : No. 975 EDA 2021
Appeal from the PCRA Order Entered May 5, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010356-2013
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 10, 2022
Raheem Brown appeals from the May 5, 2021 order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
On June 11, 2013, [Appellant] was arrested and
charged with second degree murder, conspiracy,
burglary, robbery and [carrying a firearm without a
license], in connection with the robbery and shooting
death of Rush Thompson [“Thompson”]. From May 5
to May 15, 2015, [Appellant] and his co-defendant
Emmanuel Duran were tried before this Court in the
presence of a jury. [Appellant] was represented by
Michael Huff, Esquire. On May 15, 2015, the jury
found [Appellant] guilty of all charges. That same day,
this Court sentenced him to the mandatory sentence
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S04040-22
of life imprisonment without the possibility of parole
on the second-degree murder charge, 20 to 40 years
state incarceration on conspiracy, 10 to 20 years state
incarceration on robbery, 10 to 20 years state
incarceration on burglary, and 3½ to 7 years state
incarceration on [carrying a firearm without a license].
All of the terms were to run concurrently with one
another. [Appellant] filed a post-sentence motion for
reconsideration on May 22, 2015. This was denied by
operation of law on September 30, 2015. On October
1, 2015, [Appellant] filed a Notice of Appeal to the
Superior Court; the Superior Court affirmed his
judgment of sentence on December 28, 2016. On June
27, 2017, the Pennsylvania Supreme Court denied
[Appellant’s] petition for allowance of appeal.[1]
On July 14, 2017, [Appellant] filed the instant first and
timely pro se PCRA petition. On January 19, 2018,
[Appellant] filed a pro se Amended Petition. On
March 15, 2018, George Yacoubian, Esquire was
appointed as PCRA counsel. On August 3, 2018,
[Appellant] filed a motion to proceed pro se. On May
8, 2019, this Court conduced a Grazier2 hearing and
permitted [Appellant] to proceed pro se. On June 28,
2019, [Appellant] filed a pro se supplemental
petition. On July 15, 2019, [Appellant] retained Teri
Himebaugh, Esquire as private counsel. On November
11, 2019, Ms. Himebaugh filed an Amended Petition.
On February 20, 2020, she filed a Supplemental
Petition. On December 16, 2020, the Commonwealth
filed its Motion to Dismiss. On April 5, 2021, this Court
sent [Appellant] a Notice of Intent to Dismiss Pursuant
to Rule 907. [Appellant] did not reply to the 907
Notice. On May 5, 2021, this Court dismissed
[Appellant’s] petition based upon lack of merit. On
May 13, 2021, [Appellant] appealed this dismissal to
Superior Court.
____________________________________________
1See Commonwealth v. Brown, 159 A.3d 1016 (Pa.Super. 2016), appeal
denied, 169 A.3d 595 (Pa. 2017).
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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J-S04040-22
PCRA court opinion, 8/20/21 at 1-2 (footnotes added).
The PCRA court did not order Appellant to file a concise statement of
errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Thereafter, on August 20, 2021, the PCRA court filed a comprehensive Rule
1925(a) opinion addressing all of Appellant’s claims.
Appellant raises the following issues for our review:
I. Did the PCRA Court err when it found that trial
counsel did not violate Appellant’s rights under
the Sixth and Fourteenth Amendments of the
U.S. Constitution and Article 1 section 9 of the
Pennsylvania Constitution by ineffectively failing
to make the correct argument in support of
severance?
II. Did the PCRA Court err when it found that trial
counsel did not violate Appellant’s rights under
the Sixth and Fourteenth Amendments of the
U.S. Constitution and Article 1 section 9 of the
Pennsylvania Constitution by ineffectively failing
to request that the Court give the jury a
contemporaneous instruction on the limited
purpose for which they could consider Myron
Baker’s testimony about the November 9, 2009
robbery evidence in relation to Appellant’s guilt
or innocence?
III. Did the PCRA Court err when it found that trial
counsel did not violate Appellant’s rights under
the Sixth and Fourteenth Amendments of the
U.S. Constitution and Article 1 section 9 of the
Pennsylvania Constitution by ineffectively failing
to request an immediate cautionary instruction
be given in relation to the testimony of Myron
Baker, who violated the Court’s Sequestration
Order?
IV. Did the PCRA Court err when it found that trial
counsel did not violate Appellant’s rights under
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J-S04040-22
the Sixth and Fourteenth Amendments of the
U.S. Constitution and Article 1 section 9 of the
Pennsylvania Constitution by ineffectively failing
to object to the prosecutor’s opening statement
which vouched for the reliability of the
identification made by [] eyewitness
Fahnbulleh[?]
V. Did the PCRA Court err in finding that
Appellant’s constitutional right to due process of
law and a fair trial was not violated by the
cumulative impact of trial counsel[’s]
ineffectiveness in violation of the Sixth
Amendment?
Appellant’s brief at 3-4.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
All of Appellant’s claims concern the ineffectiveness of his trial counsel.
To prevail on a claim of ineffective assistance of counsel under the PCRA, a
petitioner must plead and prove by a preponderance of the evidence that
counsel’s ineffectiveness “so undermined the truth-determining process that
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J-S04040-22
no reliable adjudication of guilt or innocence could have taken place.”
42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining
whether trial counsel was ineffective, derived from the test articulated by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668,
687 (1984), and as applied in Commonwealth v. Pierce, 527 A.2d 973 (Pa.
1987). Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
The Pierce test requires a PCRA petitioner to prove:
(1) the underlying legal claim was of arguable merit;
(2) counsel had no reasonable strategic basis for his
action or inaction; and (3) the petitioner was
prejudiced—that is, but for counsel’s deficient
stewardship, there is a reasonable likelihood the
outcome of the proceedings would have been
different.
Id., citing Pierce, 527 A.2d at 975.
This court has explained that a petitioner “must meet all three prongs
of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d
1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),
appeal denied, 104 A.3d 523 (Pa. 2014). “[C]ounsel is presumed to be
effective and the burden of demonstrating ineffectiveness rests on appellant.”
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (citation
omitted), appeal denied, 30 A.3d 487 (Pa. 2011).
Following a thorough review of the record, including the briefs of the
parties, the applicable law, and the well-reasoned opinion of the PCRA court,
it is our determination that Appellant’s ineffectiveness claims warrant no relief.
The PCRA court comprehensively discussed each of Appellant’s allegations of
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J-S04040-22
ineffective assistance of trial counsel and concluded that they failed to satisfy
one or more prongs of the Pierce test. We find that the PCRA court’s
conclusions are supported by competent evidence and are clearly free of legal
error.
Specifically, we agree with the PCRA court that Appellant failed to
demonstrate that there was a reasonable probability that the outcome of the
trial would have been different had he been tried separately from his co-
defendant. See PCRA court opinion, 8/20/21 at 4-5. Likewise, we agree with
the PCRA court that trial counsel had a reasonable basis for not requesting a
limiting instruction with respect to Myron Baker’s testimony, as it could have
served to highlight negative evidence. Id. at 5-6.
We further agree with the PCRA court that trial counsel was not
ineffective for failing to request an immediate cautionary instruction with
respect to Baker’s testimony, as the record demonstrated his violation of the
trial court’s sequestration order was unintentional and trial counsel was
provided the opportunity to question him. Id. at 6-7. Additionally, we agree
with the PCRA court that the prosecutor did not improperly vouch for the
credibility of eyewitness Wuyatta Fahnbulleh during his opening statement
and Appellant’s ineffectiveness claim in this regard is devoid of arguable merit.
Id. at 7-8.
Lastly, we agree with the PCRA court that Appellant is not entitled to
relief on his claim that the cumulative prejudice suffered from trial counsel’s
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J-S04040-22
purported ineffectiveness rendered his trial unconstitutionally unfair. See id.
at 9-10; Appellant’s brief at 52-55.
In reaching this conclusion we note that our Supreme Court has long
recognized that “no number of failed [ineffectiveness] claims may collectively
warrant relief if they fail to do so individually.” Commonwealth v. Johnson,
966 A.2d 523, 532 (Pa. 2009) (citations omitted). “[W]here a claimant has
failed to prove prejudice as the result of any individual errors, he cannot
prevail on a cumulative effect claim unless he demonstrates how the
particular cumulation requires a different analysis.” Commonwealth v.
Wright, 961 A.2d 119, 158 (Pa. 2008) (emphasis added).
Here, we agree with the PCRA court that Appellant has failed to do so in
this instance. Appellant’s ineffectiveness claims at issue are, in large part,
factually and legally independent, with no reasonable connection warranting
a conclusion that their cumulative effect amounts to actual prejudice.
Accordingly, we adopt the PCRA court’s comprehensive August 20, 2021
opinion as our own for purposes of this appellate review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2022
-7-
Circulated 02/04/2022 09:58 AM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH CP-51-CR-0010356-2013
FILED
A 20 2021
vs,
Olfce of Judicial Records
Appeals/Post Trial
SUPERIOR COURT
RAHEEM DROWN 975 EDA 2021
OPINION
DRINKLEY, J. AUGUST 20, 2021
Defendant Raheem Brown filed a first and timely petition for relief pursuant to the Post
Conviction Relief Aet (PCRA), 42 Pa.C.S.A. § 9541 et seq. (eff. Jan. 16, 1996), claiming
ineffective assistance of counsel and relief based upon cumulative error. After independently
reviewing Defendant's pro se petition and subsequent prose filings, counsel's amended and
supplemental petitions, and the Commonwealth's motion to dismiss, this Court dismissed
Defendant's petition based upon lack of merit. Defendant appealed this dismissal to Superior
Court. This Court's dismissal should be affirmed.
Background
On June 11, 2013, Defendant was arrested and charged with second degree murder,
conspiracy, burglary, robbery and VUFA 6106, in connection with the robbery and shooting
death of Rush Thompson ["Thompson"]. From May 5 to May 15, 2015, Defendant and his co-
defendant Emmanuel Duran were tried before this Court in the presence of a jury. Defendant was
represented by Michael Huff, Esquire. On May 15, 2015, the jury found Defendant guilty of all
charges. That same day, this Court sentenced him to the mandatory sentence of life
imprisonment without the possibility of parole on the second degree murder charge, 20 to 40
years state incarceration on conspiracy, IO to 20 years state incarceration on robbery, 10 to 20
years state incarceration on burglary, and 3 ½ to 7 years state incarceration on VUFA 6106. All
of the terms were to run concurrently with one another. Defendant filed a post-sentence motion
for reconsideration on May 22, 2015. This was denied by operation of law on September 30,
2015. On October 1, 2015, Defendant filed a Notice of Appeal to the Superior Court; the
Superior Court affirmed his judgment of sentence on December 28, 2016. On June 27, 2017, the
Pennsylvania Supreme Court denied Defendant's petition for allowance of appeal.
On July 14, 2017, Defendant filed the instant first and timely pro se PCRA petition. On
January 19, 2018, Defendant filed a prose Amended Petition. On March 15, 2018, George
Yacoubian, Esquire was appointed as PCRA counsel. On August 3, 2018, Defendant filed a
motion to proceed pro se. On May 8, 2019, this Court conduced a Grazier hearing and permitted
Defendant to proceed prose. On June 28, 2019, Defendant filed a prose supplemental petition.
On July 15, 2019, Defendant retained Teri Himebaugh, Esquire as private counsel. On
November 11, 2019, Ms. Himebaugh filed an Amended Petition. On February 20, 2020, she filed
a Supplemental Petition. On December 16, 2020, the Commonwealth filed its Motion to Dismiss.
On April 5, 2021, this Court sent Defendant a Notice of Intent to Dismiss Pursuant to Rule 907.
Defendant did not reply to the 907 Notice. On May 5, 2021, this Court dismissed Defendant's
petition based upon lack of merit. On May 13, 2021, Defendant appealed this dismissal to
Superior Court.
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Discussion
When reviewing the denial of PCRA relief, the appellate court's review is limited to
determining whether the PCRA court's findings are supported by the record and without legal
error. Commonwealth v, Edmiston, 619 Pa. 549, 65 A.3d 339, 345 (2013) (citing
Commonwealth v, Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001)). The court's scope of
review is limited to the findings of the PCRA court and the evidence on the record of the PCRA
court's hearing, viewed in light most favorable to the prevailing party. Commonwealth_v. Fahy,
598 Pa. 584, 959 A.2d 312, 316 (2008) (citing Commonwealth y, Duffey, 585 Pa. 493, 889 A.2d
56, 61 (2005)). The burden is on the petitioner in the PCRA petition to demonstrate by a
preponderance of the evidence that he or she is eligible for PCRA relief. 42 Pa.C.S.A $ 9543.
This Court properly dismissed Defendant's petition because all of his claims of
ineffective assistance of counsel are without merit. To prevail on a claim alleging counsel's
ineffectiveness under the PCRA, the appellant must demonstrate (I) that the underlying claim is
of arguable merit; (2) that counsel's course of conduct was without a reasonable basis; and (3)
that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but
for the act or omission in question the outcome of the proceedings would have been different.
Commonwealth v. Timchak, 2013 PA Super 157, 69 A.3d 765, 769 (2013) (citing
Commonwealth v, Wah, 42 A.3d 335, 338 (Pa.Super.2012)). 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 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. Id. (citing 42 Pa.C.S. § 9543(a)(2)(ii)). Counsel's assistance is
deemed constitutionally effective once the court determines that the defendant has not
3
established any one of the prongs of the ineffectiveness test. Id. (citing Commonwealth v. Rolan,
964 A.2d 398, 406 (Pa.Super.2008)) To establish prejudice, the defendant must show that there
is a reasonable probability that the outcome of th~ proceedings would have been different but for
counsel's action or inaction. Commonwealth v. Davida, I 06 A.3d 611, 621 (Pa. 2014) (citing
Commonwealth v, Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). When an appellant fails
to meaningfully discuss each of the three ineffectiveness prongs, "be is not entitled to relief, and
we are constrained to find Such claims waived for lack of development." Commonwealth y,
Fears, 624 Pa. 446, 461, 86 A.3d 795, 805 (2014) (quoting Commonwealth y. Steele, 599 Pa.
341, 361, 961 A.2d 786, 797 (2008) ("[U]ndeveloped claims, based on boilerplate allegations,
cannot satisfy Appellant's burden of establishing ineffectiveness.").
I. Trial counsel was not ineffective for the argument he made in favor of
severance, which this Court ultimately denied.
First, trial counsel was not ineffective for failing to make the "correct" argument in
support of severance. Defendant argues that trial counsel inadvertently argued for joinder instead
of severance, and that counsel should have argued that severance was necessary because some
evidence was admissible against only co-defendant Duran but allegedly was prejudicial to
Defendant. This claim is without merit.
Pursuant to Pa.R.Crim.P. 582(A)(2), "[djefendants charged in separate indictments or
informations may be tried together if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an offense or offenses."
Whether to sever or join a defendant's trial from his/her codefendant's is a matter entrusted to
the discretion of the trial court and that decision will not be disturbed absent a manifest abuse of
discretion or prejudice and clear injustice to the defendant. Commonwealth v. Spotz, 756 A.2d
1139, 562 Pa. 498 (2000). The Pennsylvania Supreme Court has set forth the Lark, infra, test to
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determine whether severance is proper: (I) whether the evidence of each the offenses would be
admissible in a separate trial for the other; (2) whether the evidence is capable of separation by
the jury so as to avoid danger of confusion; and (3) whether the defendant will be unduly
prejudiced by consolidation. Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997)(citing
Commonwealth y. Lark, 518 Pa. 290, 302, 543 A.2d 491, 496-97 (1988)).
In the case at bar, this Court properly determined that a joint trial was appropriate in this
case and this Court would not have reached a different conclusion had trial counsel made the
argument Defendant now claims is the correct one. Defendant and co-defendant Duran were both
charged with murder, conspiracy and related charges based upon nearly the exact same evidence
and witnesses. Defendant claims that he was prejudiced by evidence of Duran's involvement in
the robbery of Myron Baker the morning after the murder. However, the evidence showed that
both Defendant and Duran robbed Baker using a weapon similar to the one used to rob
Thompson. This evidence was admissible to prove Defendant's identity as a participant in
Thompson's robbery and murder. Whether the weapon was in the fact the same one used in both
crimes went to the weight that the jury placed upon the evidence, not admissibility. Moreover,
Defendant has failed to establish that he was prejudiced by being tried with Duran. He failed to
demonstrate that there was a reasonable probability that the outcome of the trial would have been
different had he been tried separately from Duran. Accordingly, no relief is due.
II. Trial counsel was not ineffective for failing to request an instruction limiting
the jury's consideration of Myron Baker's testimony.
Defendant argues that trial counsel was ineffective for failing to request that this Court
give a contemporaneous instruction on the limited purpose for which they could consider Myron
Baker's testimony regarding the November 9, 2009 robbery in relation to Defendant's guilt or
innocence. This claim is without merit. Defendant is unable to show that counsel had no
5
reasonable basis for failing to request this instruction. The record shows that at several points
during trial, trial counsel considered "other crimes" evidence concerns and whether limiting
instructions were necessary and/or advisable. (N.T. 5/7/15, p. 36-75, 93-100). Trial counsel
noted that he was concerned that additional limiting instructions could potentially serve to
"highlight" negative evidence. [d. at 55. Thus, it is clear from the record that trial counsel
carefully considered whether limiting instructions were advisable or would do more harm than
good. Since it appears trial counsel had a reasonable basis for not requesting a limiting
instruction with respect to Myron Baker's testimony, this claim is without merit. In addition,
Defendant has failed to establish how he was prejudiced by the lack of a limiting instruction. No
relief is due.
III, Trial counsel was not ineffective for failing to request an immediate
cautionary instruction regarding the testimony of Myron Baker, who
violated this Court's sequestration order.
Trial counsel was not ineffective for failing to request an immediate cautionary
instruction regarding Myron Baker's testimony. Defendant argues that "fg]iven the nature and
importance of Baker's testimony and the Commonwealth's reliance on it being the key link in
the evidentiary chain ultimately leading to [Defendant], counsel should have asked the Court
give both an immediate and a final instruction to the jury." Am. Pet. p. 34-35. He further argues
that this "instruction should have advised the jury that during this trial, the Court had ordered
that witnesses are sequestered so that they cannot learn of other witnesses' testimony. Baker
violated that order. They may use the fact that Baker violated the sequestration order to evaluate
the credibility and weight to give his in-court testimony." Id. at 35. This claim is without merit.
Where a violation of a sequestration order occurs, the remedy selected "is within the
sound discretion of the trial court. In exercising its discretion, the trial court should consider the
seriousness of the violation, its impact on the testimony of the witness, and its probable impact
6
on the outcome of the trial. We will disturb the trial court's exercise of its discretion only if there
is no reasonable ground for the action taken." Commonwealth v. Rose, 172 A.3d 1121, 1127
(Pa.Super.2017)(quoting Commonwealth y, Smith, 464 Pa. 314, 346 A.2d 757, 760 (1975)).
The record shows that while Edward Brooks was testifying, Myron Baker arrived at the
courtroom but instead of waiting outside in the hall, he entered the courtroom and sat in the
galJery. Once this Court was made aware of his presence, this Court questioned Baker and
determined that this sequestration violation was unintentional. (N.T, 5/6/15, p. 151-56, 215-24)
Counsel then had the opportunity to question Baker as to whether Brooks' testimony would
impact his own testimony and counsel determined that he had not been influenced by what he
heard Brooks say. Id. at 215-24. Thus, this Court chose an appropriate remedy-allowing
counsel to question Baker to his satisfaction-and had a reasonable basis for doing so. Defendant
makes no argument that this remedy was wueasonable, beyond claiming that counsel
"ineffectively chose not to request" that an instruction be given to the jury and that counsel's
"decision not to actively advocate on his client's behalf was not in his client's best interest."
Since Defendant is unable to show that counsel's decision to accept this Court's reasonable
remedy was prejudicial in any way, no relief is due.
IV, Trial counsel was not ineffective for failing to object to the prosecutor's
opening statement where he allegedly "vouched" for the reliability of the
identification made by witness Fahnbulleh.
Defendant argues that trial counsel was ineffective for failing to object to the prosecutor's
opening statement, where he told the jury:
Remember, when we have detectives investigate something, we
have, now in 201 S, and back then in 2009, a lot of pictures. We
have-if you ever been arrested, got a driver's license. There are
pictures in the database. But we have to know a little bit more to be
able to put those pictures in front of witnesses. We can't just put
the seven billion people on this planet, and say pick out who they
are.
7
(N.T. 5/15/15, p. 34). Defendant argues that the inference "was that the police had some sort of
unidentified but reliable evidence that made them put [Edward] Brook's photo in the array that
was shown to Fahnbulleh." Am. Pet. p. 38. This claim is without merit.
Although it is not proper for a prosecutor to offer a personal opinion as to the credibility
of the defendant or other witness, prosecutors are permitted to comment upon the credibility of
the defendant or a witness. Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013) (citing
Commonwealth v. Chmiel, 585 Pa. 547,889 A.2d 501,545 (2005)). Even an otherwise
improper comment may be appropriate if it is in fair response to defense counsel's remarks.
Commonwealth y, Burno, 96 A.3d 956, 974 (Pa. Super, 2014) (quoting Commonwealth v,
Elliott, 80 .2d 415, 443 (Pa. 2013). Furthermore, a prosecutor's comments do not constitute
reversible error unless their unavoidable effect was to prejudice the jury, forming in their minds
fixed bias and hostility towards the defendant so that they could not weigh the evidence
objectively and render a true verdict. Id.In the case at bar, the prosecutor did not improperly vouch for Fahnbulleh's credibility
with this statement. Rather, he simply explained identification procedures used by law
enforcement. In addition, he was anticipating and responding to defense counsel's argument that
the police should have shown Fahnbulleh a photo of Troy Rawlinson, aka "Scooty," whom
Defendant argues was the actual killer. Police had no reason to show Fahnbulleh a photo of
Scooty, but did have reason to show her a photo of Brooks, the third individual who participated
in Thompson's murder and subsequently pled guilty to this crime. As with each of Defendant's
claims above, he also has failed to demostrate how he was prejudiced in any way. Accordingly,
no relief is due.
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V, Cumulative Error Claim--No Relief is Due
Defendant argues that he is owed relief based upon the "cumulative en ors" in his case
that the believes amounted to ineffective assistance of counsel. He claims that he is "still entitled
to relief on the basis that the cumulative prejudice resulting from the errors undermined the
fundamental fairness of his trial and denied him his constitutional right to due process."
Amended Petition, p. 39. He argues that "each of counsels [sic] errors individually undermined
his misidentification defense. When considered together [Defendant] was essentially left
defenseless." Id. at 40, This claim is meritless.
"[WJhere a claimant has failed to prove prejudice as a result of any individual errors, he
cannot prevail on a cumulative effect claim unless he demonstrates how the particular
cumulation requires a different analysis." Commonwealth y. Hutchinson, 611 Pa. 280, 318-19,
25 A.3d 277 (201 1)(quoting Commonwealth_v Wright, 599 Pa. 270, 961 A.2d 119, 158 (2008)).
The claimant must set forth "a specific, reasoned, and legally and factually supported argument
for the claim" of cumulative prejudice. Hutchinson, 25 A.3d at 352 (citing Commonwealth y,
Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009)). Bald claims of cumulative prejudice are
insufficient. Hutchinson, 25 A.3d at 352.
In the case at bar, Defendant has failed to demonstrate how the particular cumulation of
alleged ineffective assistance of counsel prejudiced him in such a way that requires a different
analysis. This Court reviewed each of his claims of ineffective assistance of counsel and
determined that in each instance, the claim was meritless and Defendant failed to demonstrate
prejudice. The record shows this Court properly allowed joinder of Defendant and co-
defendant's cases and would not have reached a different conclusion if counsel had made the
argument Defendant suggests. Counsel had a reasonable basis for not requesting a limiting
instruction regarding Myron Baker's testimony since it could have served to highlight negative
9
evidence. This Court invoked the appropriate remedy when Myron Brooks unintentionally
violated the sequestration order. Last, the prosecutor did not improperly vouch for a witness's
credibility. Even when reviewed in the aggregate, these claims still do not amount to a denial of
Defendant's due process by "undermining his misidentification defense" or "leaving him
essentially defenseless." Each claim is meritless and Defendant has failed to demonstrate
prejudice. As such, bis claim of cumulative prejudice must fail and no relief is due.
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CONCLUSION
After reviewing the applicable case law, statutes, and testimony, this Court committed no
error. This Court properly dismissed Defendant's petition based upon lack of merit. Accordingly,
no relief is due and this Court's dismissal should be affirmed.
BY THE COURT:
J.
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