Com. v. Collins, A.

J-S49010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADRIAN L. COLLINS :
:
Appellant : No. 438 MDA 2018
Appeal from the PCRA Order February 8, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002052-2012
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 24, 2018
Appellant, Adrian L. Collins, appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546. We affirm.
We summarize the history of this case as follows. On March 11, 2012,
at approximately 11:00 a.m., Appellant shot Atlas Simpson (“the victim”),
who was on his shift as a taxi-van driver, in the back of the head and
subsequently robbed the victim. There were multiple people inside of the van
when Appellant shot the victim. Several of the van’s occupants identified
Appellant as being seated directly behind the victim at the time of the
shooting. Witnesses also indicated that Appellant was holding a silver
handgun immediately after the shot was fired.
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* Former Justice specially assigned to the Superior Court.
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Appellant was arrested and charged with various crimes related to the
incident. On April 5, 2013, a jury convicted Appellant of first-degree murder,
second-degree murder, robbery, and carrying a firearm without a license. 1
That same day, Appellant was sentenced to serve a term of life imprisonment
for the first-degree murder conviction, a consecutive sentence of seven to
fourteen years for the conviction of robbery, and a consecutive sentence of
one to two years for the crime of carrying a firearm without a license. 2
Appellant did not file post-sentence motions. Appellant took a timely appeal,
and on February 21, 2014, this Court affirmed his judgment of sentence.
Commonwealth v. Collins, 97 A.3d 810, 795 MDA 2013 (Pa. Super. 2014)
(unpublished memorandum). Our Supreme Court denied Appellant’s petition
for allowance of appeal on August 20, 2014. Commonwealth v. Collins, 97
A.3d 742 (Pa. 2014).
Appellant timely filed a pro se PCRA petition on November 16, 2015.
The PCRA court appointed counsel, who filed a supplemental PCRA petition on
May 10, 2016. On August 31, 2016, the PCRA court issued notice of its intent
to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907. On February 8,
2018, the PCRA court entered an order denying Appellant’s PCRA petition.
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1 18 Pa.C.S. §§ 2502(a), 2502(b), 3701, and 6106, respectively.
2For the purpose of sentencing, Appellant’s conviction of second-degree
murder merged with the first-degree murder conviction.
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This timely appeal followed. Both Appellant and the PCRA court have complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether Trial Counsel was ineffective for failing to request to
suppress the identification by a Commonwealth witness?
2. Whether Trial Counsel was ineffective for failing to call an expert
witness on behalf of the Appellant?
3. Whether Trial Counsel was ineffective for failing to object to
inflammatory photographs?
4. Whether Trial Counsel was ineffective for failing to request a
proper jury instruction relating to the intoxicated condition of the
Commonwealth witnesses?
5. Whether Trial Counsel was ineffective for failing to request
proper jury instructions regarding the incentives of the
Commonwealth witnesses, and failed to properly cross-examine
these witnesses regarding their incentives?
6. Whether Trial Counsel was ineffective for failing to cross-
examine the Commonwealth witness why his prints were on the
ammunition tray?
7. Whether Trial Counsel was ineffective for failing to argue
evidence of the caliber gun that was used in the homicide?
8. Whether there was prosecutorial misconduct?
Appellant’s Brief at 8-9.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
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record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
Appellant’s first seven issues challenge the effective assistance of his
trial counsel. Our Supreme Court has long stated that, in order to succeed on
a claim of ineffective assistance of counsel, an appellant must demonstrate
that (1) the underlying claim is of arguable merit; (2) counsel’s performance
lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the
appellant prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
2001).
We have explained that trial counsel cannot be deemed ineffective for
failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125,
132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second prong,
we have reiterated that trial counsel’s approach must be “so unreasonable
that no competent lawyer would have chosen it.” Commonwealth v. Ervin,
766 A.2d 859, 862-863 (Pa. Super. 2000) (quoting Commonwealth v.
Miller, 431 A.2d 233 (Pa. 1981)).
Our Supreme Court has discussed “reasonableness” as follows:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
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whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial counsel’s
decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting
Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.
1967)) (emphasis in original).
In addition, we are mindful that prejudice requires proof that there is a
reasonable probability that, but for counsel’s error, the outcome of the
proceeding would have been different. Pierce, 786 A.2d at 213. “A failure
to satisfy any prong of the ineffectiveness test requires rejection of the claim
of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,
when it is clear that a petitioner has failed to meet the prejudice prong of an
ineffective-assistance-of-counsel claim, the claim may be disposed of on that
basis alone, without a determination of whether the first two prongs have been
met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).
Further, it is presumed that the petitioner’s counsel was effective, unless
the petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d
1167, 1177 (Pa. 1999). Moreover, we are bound by the PCRA court’s
credibility determinations where there is support for them in the record.
Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing
Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).
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We also observe that claims of ineffective assistance of counsel are not
self-proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).
“[A] post-conviction petitioner must, at a minimum, present argumentation
relative to each layer of ineffective assistance, on all three prongs of the
ineffectiveness standard….” Commonwealth v. D’Amato, 856 A.2d 806,
812 (Pa. 2004). “[A]n underdeveloped argument, which fails to meaningfully
discuss and apply the standard governing the review of ineffectiveness claims,
simply does not satisfy Appellant’s burden of establishing that he is entitled
to relief.” Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001).
In addition, we note that where an appellant is not entitled to relief with regard
to the underlying claim upon which his ineffectiveness claim is premised, he
is not entitled to relief with regard to his ineffectiveness claim.
Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011).
Appellant first argues that trial counsel was ineffective for failing to seek
suppression of a witness’s identification of Appellant. Appellant’s Brief at 14-
16. Specifically, Appellant asserts that the identification testimony of witness
Eui Noh should have been suppressed because his recognition of Appellant
stemmed from seeing Appellant at the preliminary hearing. Id. at 14.
Appellant believes that this resulted in an impermissibly suggestive
identification.
In addressing whether there is merit to Appellant’s underlying claim of
error, we are mindful of the following:
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In reviewing the propriety of identification evidence, the
central inquiry is whether, under the totality of the circumstances,
the identification was reliable. . . . Suggestiveness in the
identification process is but one factor to be considered in
determining the admissibility of such evidence and will not warrant
exclusion absent other factors. As this Court has explained, the
following factors are to be considered in determining the propriety
of admitting identification evidence: the opportunity of the witness
to view the perpetrator at the time of the crime, the witness’
degree of attention, the accuracy of his prior description of the
perpetrator, the level of certainty demonstrated at the
confrontation, and the time between the crime and confrontation.
The corrupting effect of the suggestive identification, if any, must
be weighed against these factors.
Commonwealth v. Moye, 836 A.2d 973, 976 (Pa. Super. 2003)
In determining that this issue lacks merit, the PCRA court offered the
following apt analysis, which we adopt as our own:
[Appellant’s] bald assertion that the witness seeing him at
the preliminary hearing was the only reason [the witness]
identified [Appellant] at trial is insufficient to warrant relief on
grounds of ineffectiveness. Suggestiveness, alone, will not
warrant suppression of identification testimony. Further, there is
no evidence in the record that the witness was uncertain whether
[Appellant] was the man he witnessed, nor is there any question
of the witness’s ability to view [Appellant] at the time in question.
Finally, aside from a general allegation, [Appellant] makes no
argument that he was prejudiced by the inclusion of the
identification testimony. There were several witnesses to the
shooting, as well as security camera footage from a nearby
business. Even without the identification in question, it is unlikely
that there would have been a different result. Therefore,
[Appellant’s] claim lacks merit.
PCRA Court Opinion, 8/31/16, at 3-4.
Appellant next argues that trial counsel was ineffective for failing to call
an expert witness. Appellant’s Brief at 17-18. Appellant claims that trial
counsel should have called an expert in handwriting analysis to testify
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regarding letters written by Appellant. Id at 17. Also, Appellant asserts that
trial counsel should have called an expert witness to testify regarding
Appellant’s position in the van and whether Appellant could have fired the fatal
gunshot. Id. at 18.
Regarding a claim of trial counsel ineffective assistance for failure to call
an expert witness, this Court has stated the following:
In order to demonstrate counsel’s ineffectiveness for failure to call
a witness, a petitioner must prove that “the witness existed, the
witness was ready and willing to testify, and the absence of the
witness’ testimony prejudiced petitioner and denied him a fair
trial.” [Commonwealth v.] Johnson, 27 A.3d [244,] 247 [(Pa.
Super. 2011)] (internal citation omitted). In particular, when
challenging trial counsel’s failure to produce expert testimony,
“the defendant must articulate what evidence was available and
identify the witness who was willing to offer such evidence.”
Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 745 (Pa.
2004) (internal citation omitted).
Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. 2013).
Our review of the record reflects that Appellant failed to identify any
expert witness or provide an affidavit that the alleged expert was available to
testify on Appellant’s behalf. Lacking such evidence of an available witness,
the PCRA court had no reason to believe that any expert would have testified
in the manner that Appellant alleges. Thus, we discern no error on the part
of the PCRA court in declining to grant Appellant relief on this ineffective
assistance of counsel claim.
In his third issue, Appellant argues that trial counsel was ineffective with
regard to the admission of inflammatory photographs of the crime scene.
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Appellant’s Brief at 18-21. Appellant contends that trial counsel was
ineffective for failing to object to the admissibility of the photographs and for
failing to request a jury instruction regarding inflammatory photographs. Id.
Before we address Appellant’s claim, we must consider whether the
issue is waived. An appellate court is limited to considering only those facts
that have been duly certified in the record on appeal. See Commonwealth
v. Powell, 956 A.2d 406, 423 (Pa. 2008) (holding the appellant waived a
challenge to the admissibility of an autopsy photograph where he failed to
include the photograph at issue in the certified record).
Specifically, we are mindful of the following:
Moreover, “it is Appellant’s responsibility to ensure that this Court
has the complete record necessary to properly review a claim.”
Commonwealth v. Tucker, 143 A.3d 955, 963 (Pa. Super.
2016) (internal quotation marks and citation omitted).
In Commonwealth v. Petroll, 696 A.2d 817 (Pa. Super.
1997), aff'd, 558 Pa. 565, 738 A.2d 993 (Pa. 1999), the defendant
argued that the trial court erred by failing to sustain his objection
to the admission of photographs. This Court found the issue
waived because of the defendant’s failure to ensure the
photographs were included in the certified record. See id. at 836.
Similarly, in Commonwealth v. Lassen, 659 A.2d 999 (Pa.
Super. 1995), abrogated on other grounds, Commonwealth v.
Stultz, 114 A.3d 865, 882 (Pa. Super. 2015), the defendant
argued that the trial court erred by admitting photographs of the
victim’s injuries. This Court found the issue waived because the
defendant failed to include the photographs in the certified record.
See id. at 1008. “In this case, Appellant has failed to provide the
necessary [photographs] for review. Because our review of the
issue is dependent upon materials that are not provided in the
certified record, we cannot consider this claim. Thus, this claim is
waived.” Commonwealth v. Scassera, 965 A.2d 247, 249 (Pa.
Super. 2009), appeal denied, 985 A.2d 219 (Pa. 2009).
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Commonwealth v. Kennedy, 151 A.3d 1117, 1127 (Pa. Super. 2016).
Our review of the certified record reflects that the Commonwealth
admitted multiple photographs into evidence at Appellant’s trial. See N.T.,
3/29/13-4/5/13, at 4-5 (index to exhibits). However, none of the photographs
admitted at trial are included in the certified record for transmittal to this
Court. Therefore, Appellant failed to ensure that the complete record is before
this Court for review. Accordingly, because we cannot review the allegedly
inflammatory photographs presented by the Commonwealth, our review of
the issue of whether trial counsel was ineffective with regard to the
photographs is hampered. Hence, we are constrained to deem this issue to
be waived on appeal. Kennedy, 151 A.3d at 1127.
Appellant next argues that trial counsel was ineffective for failing to
request a jury instruction relating to the intoxicated state of several
Commonwealth witnesses. Appellant’s Brief at 21-23. Essentially, Appellant
contends that, because there was testimony indicating that several of the
witnesses who were present in the van had used drugs and alcohol the night
before the murder, an instruction concerning the credibility of intoxicated
witnesses was appropriate.
It is undisputed that a trial court has wide discretion in fashioning jury
instructions. Commonwealth v. Brown, 911 A.2d 576, 583 (Pa. Super.
2009). Furthermore, our Supreme Court has held that “[t]here is no
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ineffectiveness of counsel for failing to request an unwarranted [jury]
instruction.” Commonwealth v. Ragan, 743 A.2d 390, 397 (Pa. 1999).
As Appellant indicates in his brief,
“Rashon Burston testified that he was drunk, smoked weed, and
smoked dippers. (N.T., p. 366). Videl Little indicated that he was
high on dippers (N.T., p. 403-404), and drunk (N.T., p. 411-412),
and he used to get high every day (N.T., p. 419). Eric Bostic
admitted that he was high and drunk (N.T., p. 460), and Danielle
Chavious was high on dippers (N.T., p. 665).”
Appellant’s Brief at 22. Specifically, the above-cited testimony was in relation
to the witnesses’ behavior at a hotel party the night before the crime.
However, none of the testimony pertained to the actual condition of the
witnesses at the time of the murder, which occurred at approximately 11:00
a.m. the day after the party. Accordingly, due to the lack of evidence of
intoxication at the time of the murder, we conclude that a jury instruction
pertaining to the intoxicated state of the above-named witnesses was not
warranted. Consequently, there is no underlying merit to Appellant’s instant
claim of trial counsel ineffective assistance. Therefore, this claim fails.
In his fifth issue, Appellant argues that trial counsel was ineffective for
failing to properly cross-examine certain Commonwealth witnesses who had
pending criminal charges.3 Appellant’s Brief at 23-24. Appellant claims trial
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3 We note that in his statement of questions involved, Appellant indicates that
he is also challenging whether trial counsel was ineffective for failing to
request proper jury instructions regarding the possible incentives to the
Commonwealth witnesses in return for their testimony. Appellant’s Brief at 8.
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counsel did not fully cross-examine the witnesses regarding bias and what the
witnesses were expecting from the Commonwealth in exchange for their
cooperation. Id. at 24.
Our Courts have consistently ruled that, where a trial court directs a
defendant to file a concise statement pursuant to Pennsylvania Rule of
Appellate Procedure 1925, any issues not raised in that statement shall be
waived. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008)
(citing Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998)). In
Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002), our Supreme
Court reaffirmed its holding in Lord and stated: “In Lord, however, this Court
eliminated any aspect of discretion and established a bright-line rule for waiver
under Rule 1925 …. Thus, waiver under Rule 1925 is automatic.” See also
Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa. Super. 2008) (noting
that Lord “requires a finding of waiver whenever an appellant fails to raise an
issue in a court-ordered Pa.R.A.P. 1925(b) statement”).
Rule 1925 is intended to aid trial judges in identifying and focusing upon
those issues which the parties plan to raise on appeal. “When a court has to
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However, in the argument portion of his brief, Appellant limits his discussion
to whether trial counsel was ineffective for failing to properly cross-examine
certain Commonwealth witnesses with pending criminal charges. Accordingly,
we conclude that any claim that trial counsel was ineffective for failing to
request proper jury instructions regarding possible icentives has been
abandoned because Appellant has not developed any argument relating to
that issue in the argument section of his appellate brief as required by
Pa.R.A.P. 2119(a).
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guess what issues an appellant is appealing, that is not enough for meaningful
review.” Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001).
In addition, we are mindful that claims not raised before the trial court are
waived. See Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006)
(citing Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa. Super. 1987)
(reiterating that “[a] theory of error different from that presented to the trial
jurist is waived on appeal, even if both theories support the same basic
allegation of error which gives rise to the claim for relief”).
Our review of the certified record reflects that on February 26, 2018,
the PCRA court issued an order directing Appellant to file a Pa.R.A.P. 1925(b)
statement within twenty-one days. The record further reflects Appellant filed
his Rule 1925(b) statement on March 8, 2018. Appellant’s Rule 1925(b)
statement contains a total of eight issues. The fourth issue is the only issue
that raised a claim pertaining to the cooperation of Commonwealth witnesses,
and it provides as follows:
Did trial counsel provide a meaningful representation by: Failing
to request a jury instruction on bias or motivation of
Commonwealth witnesses for their cooperation?
Pa.R.A.P. 1925(b) Statement, 3/8/18, at 1 ¶ 1(d).
Thus, Appellant properly preserved for review a claim alleging
ineffective assistance for failure to request a jury instruction. However, in his
Rule 1925(b) statement, Appellant never specifically raised to the PCRA court
the theory that trial counsel was ineffective for failing to cross-examine
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properly certain Commonwealth witnesses with pending criminal charges.
Therefore, to the extent Appellant now attempts to challenge whether trial
counsel was ineffective for failing to properly cross-examine the
Commonwealth witnesses, we conclude that this argument is waived because
Appellant failed to present this specific issue in his Rule 1925(b) statement.
Appellant next argues that trial counsel was ineffective for failing to
cross-examine Commonwealth witness Rashon Burston. Appellant’s Brief at
24-25. Appellant avers that trial counsel should have questioned Mr. Burston
regarding the fact that his fingerprint was the only usable print on the
ammunition tray discovered by police.
In addressing this claim of ineffective assistance of trial counsel, the
PCRA court offered the following analysis:
[Appellant] alleges counsel was ineffective for failing to
question Rashon Burston about the fact that his fingerprints were
found on an ammunition tray that was recovered by police. Trial
counsel extensively cross-examined Investigator William Kimmick
of the Harrisburg Police Department about fingerprints found on
the ammunition tray as well as on playing cards which were also
recovered. Detective Kimmick testified that the only usable print
pulled from the ammunition tray was that of Burston, and that the
only print belonging to [Appellant] was found on the playing cards.
However, [Appellant] alleges, neither trial counsel nor counsel for
the Commonwealth questioned Burston about why his prints were
on the ammunition tray. [Appellant] contends, since Burston’s
prints were the only ones found on any evidence related to the
shooting, [Appellant] was prejudiced by trial counsel’s failure to
question Burston.
[Appellant] fails to demonstrate a reasonable probability of
a different result had trial counsel questioned Burston, and,
therefore, his ineffectiveness claim is without merit. Further, the
jury heard Detective Kimmick’s testimony regarding the
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fingerprint analysis from the ammunition tray and the playing
cards, and was thus fully aware that no usable fingerprints of
[Appellant] were pulled from the tray. No purpose would be
served by further proceedings; therefore we decline to grant
[Appellant’s] request for an evidentiary hearing on this claim.
PCRA Court Opinion, 8/31/16, at 6.
We agree with the PCRA court that, in light of the fact that the jury
heard testimony that Appellant’s fingerprints were not on the ammunition
tray, Appellant has failed to show that the outcome of the proceedings would
have been different had trial counsel questioned Mr. Burston about his
fingerprints being on the ammunition tray. Hence, this claim of ineffective
assistance lacks merit.
In his seventh issue, Appellant argues that trial counsel was ineffective
for failing to reiterate in his closing argument the fact that the specific caliber
of gun involved in the shooting was unknown. Appellant’s Brief at 25-27.
Appellant notes that no murder weapon was found and there was no definitive
conclusion as to the exact caliber of the bullet.
The PCRA court offered the following discussion of this claim of
ineffective assistance:
[Appellant] argues counsel was ineffective for failing to elicit
during testimony what caliber gun was used in the homicide. Dr.
Wayne Ross, who performed the autopsy, and Pennsylvania State
Trooper Michael Fortley both testified at trial regarding the type
of gun used in the shooting. Both individuals indicated they were
not sure what caliber gun was used. [Appellant] submits “it is
obvious that the murder weapon was not found, and that is was
[sic] unclear what type of gun was used[,]” and alleges counsel
was ineffective for failing to argue this fact in his closing
argument.
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[Appellant] is not entitled to relief on this claim because he
fails to demonstrate his claim is of arguable merit. Counsel’s
failure to repeat something that was already presented to the jury
during his closing argument cannot be said to be so unreasonable
that it rises to the level of ineffectiveness. Further, [Appellant]
fails to show how counsel’s omission prejudiced him. The fact that
a murder weapon was not found and the caliber gun used in the
shooting was unknown was made clear to the jury through the
testimony of both Dr. Ross and Trooper Fortley. Further, it makes
no difference what caliber gun was used; the bottom line is that a
gun was used to kill the cab driver. To claim counsel’s failure to
repeat this information during closing argument is ineffective
assistance is simply misguided.
PCRA Court Opinion, 8/31/16, at 7.
We agree with the conclusion of the PCRA court that Appellant has failed
to prove that trial counsel’s omission of an argument regarding the lack of
evidence of the caliber of the gun cause actual prejudice. Appellant’s
argument in this regard amounts to allegations of appellate counsel’s
ineffective assistance and lacks any significant discussion of the prejudice
prong of the Pierce test. As we previously stated, claims of ineffective
assistance of counsel are not self-proving. Wharton, 811 A.2d at 986. A
PCRA petitioner must present argumentation relative to all three prongs of the
ineffectiveness standard. D’Amato, 856 A.2d at 812. Accordingly,
Appellant’s undeveloped claim of trial counsel’s ineffective assistance fails.
In his final issue, Appellant argues that the assistant district attorney
committed prosecutorial misconduct during trial. Appellant’s Brief at 27-29.
Specifically, Appellant avers that the prosecutor improperly questioned a
Commonwealth witness without that witness’s attorney being present. Id.
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Appellant contends that, because the lack of the attorney being present, the
Commonwealth witness should not have been called to testify. Id. at 29.
We observe the following:
“[T]o be entitled to PCRA relief, a petitioner must plead and prove,
inter alia, that the allegation of error has not been previously
litigated or waived.” Commonwealth v. Berry, 877 A.2d 479,
482 (Pa. Super. 2005), appeal denied, 917 A.2d 844 (Pa. 2007).
“An issue is waived if it could have been raised prior to the filing
of the PCRA petition, but was not.” Id. These statements in
Berry are derived directly from Section 954[4](b) of the PCRA,
which provides that “an issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state post-conviction proceeding.”
42 Pa.C.S. § 954[4](b).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007). Thus,
where issues presented in a PCRA petition could have been raised on direct
appeal and were not, they are waived. Id. See also Commonwealth v.
Lambert, 797 A.2d 232, 240 (Pa. 2001) (PCRA petitioner’s issues that could
have been raised on direct appeal but were not, are waived under 42 Pa.C.S.
§ 9544(b)).
Our review of the record reflects that the issue concerning prosecutorial
misconduct could have been raised on direct appeal but was not. Moreover,
it is not a claim which Appellant assigned as error to trial counsel. Accordingly,
we conclude that this issue ia waived. Turetsky.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2018
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