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[[COURTLISTENER_SUBOPINION {"id":"10732360","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
J-S21024-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN ALEXANDER :
:
Appellant : No. 1331 EDA 2023
Appeal from the PCRA Order Entered May 26, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0111361-2006
BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 5, 2024
Appellant John Alexander appeals pro se from the order dismissing his
first Post Conviction Relief Act1 (PCRA) petition. On appeal, Appellant raises
numerous claims of ineffective assistance of counsel. We affirm.
The PCRA court set forth the following factual and procedural history:
The evidence at trial showed that on the evening of May 5, 2003,
the victim, Reinaldo Zayas, was kidnapped when he met with
Appellant to purchase a plasma television. When the victim did
not return home, his girlfriend, Yomaxi Santos, tried calling him
by cell phone. Santos testified that one of her calls was eventually
answered and Zayas was heard screaming. After the call, Zayasâs
brother, Marcos Gutierrez, went to look for him. Zayas called 911.
Police officers arrived at Zayasâs home but Santos did not tell them
about receiving a call from Zayas or hearing him screaming.
When Gutierrez returned home, he received a call from the
kidnappers, demanding that money be dropped off at 9 th and
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
J-S21024-24
Glenwood. Gutierrez worked with police to deliver $4,000 to the
requested location, but the ransom was never picked up.
The following day, May 6, 2003, Appellant called the police and
reported that he was abducted and beaten. At Episcopal Hospital,
Appellant told Officer Steven Johnson that Appellant was forced
into a van, with Zayas, at gunpoint, and that Appellant was forced
to call his girlfriend, Michelle Carter, in order to request $3,500 in
ransom money. Appellant told Officer Johnson that the
kidnappers took Appellant to an abandoned house, where he was
duct taped, beaten, and burned. Appellant then told Officer
Johnson that he passed out several times before awak[ing] around
22nd and Lehigh [Avenue]. While at the hospital, Appellant also
gave a statement to Detective Ken Golczewski saying that when
he woke up, he found a payphone near Broad and Lehigh and
called Michelle Carter to pick him up.
Appellant then gave a statement to Homicide Detective Aaron
Booker. He told Detective Booker that when the kidnappers let
him go, they walked him to an alleyway at 22 nd and Sedgley.
Appellant told Detective Booker that while he told East Detectives
that Michelle Carter picked him up at Broad and Lehigh, he walked
to his auntâs house at 3500 Old York Road.
After his interview with Homicide, Appellant rode with Detective
Greg Pinto to show him where [the kidnappers released him].
Appellant told Detective Pinto that he was released on railroad
tracks and took Detective Pinto to 22 nd and Sedgley. Appellant
explained that he picked up a pay phone at 17 th and Lehigh, which
did not work, and so [he] went to 15 th and Lehigh to find a working
pay phone. After checking the 15th and Lehigh pay phone himself,
Detective Pinto found that it was not working, and then took
Appellant back to East Detectives.
Next, Appellant met with Detective Robert Fetters and agreed to
help detectives locate Reinaldo Zayas. After driving with
detectives for approximately 45 minutes and heading westbound
on Cecil B. Moore Avenue, Appellant said, â[i]f you flood this area,
you will probably find the van, if the police flood the area.â The
detectives and Appellant approached a van near 1800 Cecil B.
Moore Avenue, and Appellant told them, âit looks like the van.â
Zayasâs body was found inside the van.
Several weeks later, on June 12, 2003, Michelle Carter called
police regarding a domestic disturbance and told them that
Appellant killed someone two weeks before. Michelle Carterâs
-2-
J-S21024-24
brother, Maurice Carter, gave an interview to Homicide and told
them that Appellant admitted to Maurice Carter that Appellant set
Zayas up. Maurice Carter later recanted [his statement].
At trial, Dr. Edwin [Lieberman] testified that he determined, to a
reasonable degree of medical certainty, that Zayasâs cause of
death was multiple stab wounds to the buttock and thigh and that
the manner of death was homicide. Dr. [Lieberman] testified from
his observations made regarding photographs taken during the
autopsy and the autopsy report that Dr. Ian Hood prepared. After
a grand jury investigation, Appellant was arrested on September
20, 2005. On March 13, 2007, a jury sitting before the [trial court]
found Appellant guilty of second-degree murder, robbery,
kidnapping for ransom, unlawful restraint, and conspiracy. [2] On
May 17, 2007, [the trial court] imposed a mandatory sentence of
life [imprisonment] without parole and 5 to 10 years running
concurrent on Appellantâs conspiracy charge. Appellant filed a
post-sentence motion on May 22, 2007. The [trial court] denied
the post-sentence motion on October 2, 2007.
Appellant appealed and the Superior Court affirmed Appellantâs
judgments of sentence on February 5, 2009. [See
Commonwealth v. Alexander, 2551 EDA 2007 (Pa. Super. filed
Feb. 5, 2009) (unpublished mem.).] Appellant filed a petition for
allowance of appeal, which the Supreme Court of Pennsylvania
denied on August 3, 2010. [See Commonwealth v. Alexander,
3 A.3d 669
(Pa. 2010). Appellant did not file a petition for a writ
of certiorari with the Supreme Court of the United States.]
Appellant filed a pro se PCRA petition on May 9, 2011. He filed an
amended PCRA petition on December 22, 2017 [Fn2] and a
supplemental petition on May 3, 2018, seeking reinstatement of
his direct appeal and post-sentence motion rights. After the
Commonwealth responded, the [PCRA court] issued a dismissal
notice under [Pa.R.Crim.P.] 907, on October 17, 2018. PCRA
counsel filed a response to the [PCRA courtâs] Rule 907 notice on
March 3, 2020, raising the aforementioned ineffectiveness claims.
The Commonwealth filed its motion to dismiss the supplemental
claims on June 23, 2020. On September 21, 2020, Judge Minehart
issued a second notice of intent to dismiss under Rule 907. On
November 19, 2020, the [PCRA] court formally dismissed
____________________________________________
2 18 Pa.C.S. §§ 2502(b), 3701(a), 2901(a)(1), 2902(a), and 903(a),
respectively.
-3-
J-S21024-24
Appellantâs PCRA petition. However, on November 19, 2020, the
[PCRA] court rescinded that order. [Subsequent] counsel entered
an appearance shortly thereafter and filed the instant
supplemental pleading. On September 28, 2021, Appellant filed
a supplemental PCRA. On March 17, 2022, [the] Commonwealth
filed a motion to dismiss [Appellantâs] PCRA petition.
[Fn2] Between the filing of Appellantâs pro se petition and his
amended petition, several different counsel were appointed
and withdrew, resulting in multiple continuances. This led
to Appellantâs amended petition not being filed for over six
years.
PCRA Ct. Op., 10/23/23, at 1-4 (footnote omitted and formatting altered).
The PCRA court entered an order dismissing Appellantâs PCRA petition
on May 26, 2023.3 Appellant filed a timely counseled notice of appeal on May
27, 2023. Although the PCRA court did not order Appellant to file a Pa.R.A.P.
1925(b) statement, the PCRA court issued an opinion addressing Appellantâs
PCRA claims.
On June 24, 2023, Appellantâs counsel, Teri B. Himebaugh, Esq., filed
an application to withdraw, stating that Appellant wished to proceed pro se.
See Application to Withdraw as Counsel, 6/24/23. This Court entered an order
on June 30, 2023, remanding the matter to the PCRA court to conduct a
____________________________________________
3 The PCRA courtâs docket reflects that the PCRA court entered orders
dismissing Appellantâs PCRA petition on March 15, 2023, May 16, 2023, May
24, 2023, and May 26, 2023. Because the timeliness of the appeal was
implicated, this Court directed the PCRA court to clarify the date on which the
PCRA petition was dismissed and to correct the PCRA court docket. The PCRA
court responded on July 31, 2023, indicating that the PCRA petition was
dismissed on May 26, 2023.
-4-
J-S21024-24
Grazier4 hearing. On November 8, 2023, the PCRA court held a Grazier
hearing and found that Appellant knowingly, intelligently, and voluntarily
waived his right to counsel and granted Attorney Himebaughâs motion to
withdraw as counsel. See PCRA Ct. Order, 11/9/23.
Appellant raises the following issues for our review:
1. Did defense counsel[5] render ineffective assistance at trial in
failing to lodge a proper objection, and failing to take appeal
issue with, the prosecutionâs presentation of testimony and
argument about prior statements by Michelle Carter, including
an accusation that [Appellant] had âkilled someoneâ two weeks
before, and were all previous PCRA counsel ineffective in failing
to investigate, identify or present this instance of defense
counselâs ineffectiveness as a PCRA claim?
2. Did defense counsel render ineffective assistance at trial in
failing to lodge any objection, and failing to take any appeal
issue with, the prosecutionâs presentation of testimony and
argument repeatedly referencing [Appellantâs] pre-arrest
silence and refusals to cooperate with police investigators, and
were all previous PCRA counsel ineffective in failing to
investigate, identify or present this instance of defense
counselâs ineffectiveness as a PCRA claim?
3. Did defense counsel render ineffective assistance at trial in
failing to lodge a proper objection, and failing to take appeal
issue with, the prosecutionâs presentation of testimony and
argument referencing other, unrelated criminal acts attributed
to [Appellant], without any cautionary instruction or guide or
limit jury consideration of same, and were all previous PCRA
counsel ineffective in failing to investigate, identify or present
this instance of defense counselâs ineffectiveness as a PCRA
claim?
____________________________________________
4 Commonwealth v. Grazier,
713 A.2d 81
(Pa. 1998).
5 The record reflects that J. Michael Farrell, Esq., represented Appellant at trial
and on direct appeal.
-5-
J-S21024-24
4. Did defense counsel render ineffective assistance at trial in
failing to lodge any objection, and failing to take any appeal
issue with, the trial courtâs instruction, during its jury charge,
directing that the jury âmust give weightâ to testimony about
âstatements madeâ by that witness, and were all prior PCRA
counsel ineffective in failing to investigate, identify or present
this instance of defense counselâs ineffectiveness as a PCRA
claim?
5. Did defense counsel render ineffective assistance at trial in
failing to lodge any objection, and failing to take any appeal
issue with, the trial courtâs omission, from its jury charge, of
pertinent and applicable instructions, and were all prior PCRA
counsel ineffective in failing to investigate, identify or present
this instance of defense counselâs ineffectiveness as a PCRA
claim?
6. Did defense counsel render ineffective assistance at trial in
failing to subpoena and call Police Officer Craig Van Sciver to
testify as a defense witness, and were all previous PCRA
counsel ineffective in failing to investigate, identify or present
this instance of defense counselâs ineffectiveness as a PCRA
claim?
7. Did defense counsel render ineffective assistance at trial in
failing to lodge any objection, and failing to take any appeal
issue with, the prosecutionâs presentation of hearsay testimony
(by an assistant medical examiner) as to opinions and
conclusions contained within: (A) the victimâs autopsy and
toxicology reports, and (B) [Appellantâs] emergency room
medical records, and were all previous PCRA counsel ineffective
in failing to properly present, develop and support this claim?
8. Did defense counsel render ineffective assistance at trial in
failing to lodge a proper objection, and failing to take appeal
issue with, the prosecutionâs presentation of testimony and
argument utilizing previous statements by witnesses as
substantive evidence, and were all prior PCRA counsel
ineffective in failing to investigate, identify or present this
instance of defense counselâs ineffectiveness?
9. Did defense counsel render ineffective assistance at trial in
erroneously and unreasonably advising [Appellant] to forego or
waive his constitutional right to testify on his own behalf, and
were all prior PCRA counsel ineffective in failing to properly
present, argue, and support this claim?
-6-
J-S21024-24
10. Did all previous PCRA counsel render ineffective assistance
during each of their respective representations: (A) in failing to
investigate, identify and present claims of ineffective
assistance by defense (trial/appellate) counsel; and (B) in
failing to properly develop supporting arguments and citations
to applicable law, and n failing to adequately present or
reference pertinent facts, as to those claims that were
presented?
Appellantâs Brief at 5-7.6
Because all ten of Appellantâs issues raise claims of ineffective assistance
of counsel, we begin with our well-settled standard of review:
In reviewing the denial of a PCRA petition, our standard of review
is limited to examining whether the PCRA courtâs determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA courtâs credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA courtâs legal
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
____________________________________________
6 Preliminarily, we note that Appellant has not raised all ten of these issues in
his most recent amended PCRA petition nor in his response to the PCRA courtâs
Rule 907 notice of intent to dismiss Appellantâs PCRA petition without a
hearing. Typically, any claims not first raised before the PCRA court are
waived on appeal. See Pa.R.A.P. 302(a). In all ten of his issues, however,
Appellant raises a layered claim of ineffective assistance on the part of his
PCRA counsel. Our Supreme Court has adopted a rule permitting PCRA
petitioners to âraise claims of ineffective [assistance of] PCRA counsel at the
first opportunity, even if on appeal.â Commonwealth v. Bradley,
261 A.3d
381
, 405 (Pa. 2021). This Court has held that Bradley permits us to review
an allegation of PCRA counselâs ineffectiveness, even if it is raised for the first
time on appeal, rather than in a response to a Rule 907 notice. See
Commonwealth v. Taylor, 1654 MDA 2022,
2023 WL 5202414
at *3 (Pa.
Super. filed Aug. 14, 2023) (unpublished mem.); see also Pa.R.A.P. 126(b)
(stating that unpublished memoranda filed after May 1, 2019 may be cited for
persuasive value). Accordingly, we decline to find waiver and shall review
Appellantâs issues on their merits.
-7-
J-S21024-24
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
* * *
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitionerâs burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Sandusky,
203 A.3d 1033, 1043-44
(Pa. Super. 2019)
(citations omitted and formatting altered); see also Commonwealth v.
Bardo,
105 A.3d 678, 684
(Pa. 2014) (stating that â[c]ounsel is presumed
effective, and the petitioner bears the burden of proving otherwiseâ).
Additionally, â[c]ounsel cannot be found ineffective for failing to pursue a
baseless or meritless claim.â Commonwealth v. Davis,
262 A.3d 589, 596
(Pa. Super. 2021) (citation omitted).
âWhere a petitioner alleges multiple layers of ineffectiveness, he is
required to plead and prove, by a preponderance of the evidence, each of the
three prongs of ineffectiveness relevant to each layer of representation.â
Commonwealth v. Parrish,
273 A.3d 989
, 1004 n.11 (Pa. 2022) (citation
omitted).
Specifically, our Supreme Court has explained:
-8-
J-S21024-24
To be eligible for relief on [layered claims of ineffective assistance
of counsel, a petitioner] must plead and prove that: (1) trial
counsel was ineffective for a certain action or failure to act; and
(2) [subsequent] counsel was ineffective for failing to raise trial
counselâs ineffectiveness. As to each relevant layer of
representation, [a petitioner] must meet all three prongs of the
Pierce[7] test for ineffectiveness. A failure to satisfy any of the
three prongs of the Pierce test requires rejection of a claim of
ineffective assistance of trial counsel, which, in turn, requires
rejection of a layered claim of ineffective assistance of
[subsequent] counsel.
Thus, if the petitioner cannot prove the underlying claim of trial
counsel ineffectiveness, then petitionerâs derivative claim of
[subsequent] counsel ineffectiveness of necessity must fail, and it
is not necessary for the court to address the other two prongs of
the Pierce test [i.e., the reasonable basis and prejudice prongs]
as applied to [subsequent] counsel.
Commonwealth v. Chmiel,
30 A.3d 1111, 1128
(Pa. 2011) (citations
omitted and formatting altered).
Michelle Carterâs Testimony
In his first issue, Appellant contends that Attorney Farrell provided
ineffective assistance because he failed to object following testimony
regarding Michelle Carterâs accusation that Appellant had killed someone two
weeks earlier. Appellantâs Brief at 21. Ms. Carterâs accusation was made in
the context of the police responding to a dispatch of a person screaming at
3209 Rorer Street on June 12, 2003. N.T. Trial, 3/5/07, at 39-40. In his
brief, Appellant concedes that an objection was offered at trial; however,
Appellant argues that Attorney Farrell was ineffective for failing to raise that
____________________________________________
7Commonwealth v. Pierce,
527 A.2d 973, 975-76
(Pa. 1987); see also
Sandusky,
203 A.3d at 1043
(same).
-9-
J-S21024-24
issue on direct appeal. Appellantâs Brief at 21. Because the record reflects
that objections in fact were raised to the evidence in question, our review shall
be limited to whether Attorney Farrell rendered ineffective assistance for
failing to raise this issue on direct appeal. See N.T. Trial, 3/2/07, at 143; N.T.
Trial, 3/5/07, at 43-45, 53-55.
To that end, Appellant contends that Ms. Carterâs statement was
inadmissible hearsay evidence. Appellantâs Brief at 23. Specifically, Appellant
claims that Ms. Carter lacked the personal knowledge as to whether Appellant
had actually killed someone two weeks prior to Ms. Carterâs June 12, 2003
accusation. Id. at 24. Appellant further argues that Ms. Carterâs statement
âis nothing more than a mere unsupported accusation, based neither on an
admission, nor on personal knowledge. Use of such an accusation, based
wholly on speculation and conjecture, denied [Appellant] a fundamentally fair
trial, violating due process guarantees.â Id. at 25-26 (citations omitted and
some formatting altered).
The Pennsylvania Rules of Evidence recognize that an opposing partyâs
statement is an exception to the rule against hearsay. Pa.R.E. 803(25)(A).
Our Supreme Court has explained that this exception to the rule against
hearsay is well-settled:
[I]t is fair in an adversary system that a partyâs prior statements
be used against him if they are inconsistent with his position at
trial. In addition, a party can hardly complain of his inability to
cross-examine himself. A party can put himself on the stand and
explain or contradict his former statements.
- 10 -
J-S21024-24
Thus, in criminal cases, this Court has consistently held that a
defendantâs out-of-court statements are party admissions and are
exceptions to the hearsay rule.
Commonwealth v. Edwards,
903 A.2d 1139, 1157-58
(Pa. 2006) (citations
omitted and formatting altered).
In its Rule 1925(a) opinion prior to direct appeal,8 the trial court reached
the following conclusion:
No abuse of discretion occurred here because it was clear to [the
trial court] that Ms. Carterâs knowledge that [Appellant] had killed
someone emanated from [Appellant] and thus constituted an
admission. It is beyond cavil that admissions made by a criminal
defendant are admissible evidence. Commonwealth v.
Ferguson,
516 A.2d 1200
(Pa. Super. 1986); Commonwealth
v. Darden, 457 A.22d 549 (Pa. Super. 1983). Accordingly, this
claim should be rejected as meritless.
Trial Ct. Op., 3/4/08, at 13-14 (some formatting altered).
Based on our review of the record, we find that Appellantâs underlying
hearsay claims are without arguable merit. Therefore, Attorney Farrell was
not ineffective for failing to raise these claims on direct appeal. See Davis,
262 A.3d at 596
.
____________________________________________
8 The record reflects that while this issue was preserved at trial and included
in Appellantâs Rule 1925(b) statement for his direct appeal, the issue was
ultimately neither briefed nor argued before this Court. See Appellantâs Rule
1925(b) Statement, 10/24/07, at 2; Alexander, 2551 EDA 2007.
- 11 -
J-S21024-24
In addition to his hearsay argument, Appellant claims that he and Ms.
Carter had a common-law marriage9 and that the spousal privilege should
have precluded the admission of Ms. Carterâs testimony. Appellantâs Brief at
26. Therefore, Appellant contends that Attorney Farrell was ineffective
because he never objected to Ms. Carterâs testimony based on spousal
privilege. Id. at 27.
It is well-settled that in a criminal proceeding, a spouse shall not be
competent or permitted to testify against his or her spouse with regard to
confidential communications made to one by the other, unless this privilege is
waived at trial. 42 Pa.C.S. § 5914. Our Supreme Court has held that the
spousal privilege extends to common-law marriages. Commonwealth v.
Wilson,
672 A.2d 293, 301
(Pa. 1996). The Wilson Court further explained:
To create a common-law marriage, there must be an exchange of
words in the present tense spoken with the specific purpose that
the legal relationship of husband and wife be thereby created. In
the absence of formal words, a rebuttable presumption of
marriage may arise based upon certain circumstantial evidence,
i.e., constant cohabitation and broad and general reputation of
marriage. Cohabitation and reputation are merely circumstances
from which the existence of a contract of marriage can be inferred,
and not sufficient per se to prove a common-law marriage. If the
trial court finds a common-law marriage exists, confidential
communications between spouses are subject to the spousal
privilege.
* * *
____________________________________________
9 The General Assembly abolished common-law marriages in Pennsylvania
effective January 1, 2005. 23 Pa.C.S. § 1103. Any common-law marriages
that were âotherwise lawful and contracted on or before January 1, 2005,â
remained valid. Id.
- 12 -
J-S21024-24
[T]he burden of proof rests on the party claiming the existence of
a common-law marriage.
Id. (citations omitted and some formatting altered).
Appellant claims that he and Ms. Carter âwere common law spouses, as
evidenced by their lengthy, constant cohabitation, their community reputation
as a married couple, and their producing a child together.â Appellantâs Brief
at 26 (citing Wilson,
672 A.2d at 301
). Appellant further states that he would
be able to meet his burden of establishing that a common-law marriage
existed between himself and Ms. Carter.
Id.,
unnumbered footnote.
The record belies Appellantâs claim. Indeed, during Ms. Carterâs
testimony at trial, she testified that she was âstaying back and forthâ at âa
couple [of] houses.â N.T. Trial, 3/2/07, at 88. When she spoke to homicide
detectives on May 7, 2003, Ms. Carter stated that she was Appellantâs
girlfriend. Id. at 133. Further, at the time of trial, Ms. Carter testified that
she was no longer Appellantâs girlfriend and that she could not recall whether
she was living with Appellant on May 7, 2003. Id. at 133-34. At no point
during her trial testimony did Ms. Carter describe Appellant as her husband.
Based on our review of the record, we find that Appellant cannot
establish that he and Ms. Carter established a legal relationship as husband
and wife, nor can he establish circumstantial evidence of constant cohabitation
and a broad general reputation of marriage within the community. See
Wilson,
672 A.2d at 301
. Accordingly, Appellantâs claims regarding Ms.
- 13 -
J-S21024-24
Carterâs testimony are without arguable merit, and Appellant is not entitled to
relief. See Davis,
262 A.3d at 596
; Sandusky,
203 A.3d at 1043-44
.
Appellantâs Pre-Arrest Silence
In his second issue, Appellant argues that Attorney Farrell was
ineffective for failing to object to the Commonwealthâs references to
Appellantâs pre-arrest silence. Appellantâs Brief at 30. Specifically, Appellant
identifies five instances where he alleges that the Commonwealth improperly
referenced or elicited testimony referencing his pre-arrest silence: the
Commonwealthâs opening statement to the jury; testimony of Philadelphia
Police Officer Dayton Bennett, testimony of Detective Carl Watkins; testimony
of Denise Alexander; and the Commonwealthâs closing argument.
Id.
(citing
N.T. Trial, 3/2/07, at 56-57);
id.
at 31 (citing N.T. Trial, 3/5/07, at 41-42, 52-
53, 60-62; N.T. Trial, 3/7/07, at 126, 129-34).
The use of pre-arrest silence as substantive evidence of a criminal
defendantâs guilt is governed by our Supreme Courtâs decision in
Commonwealth v. Molina,
104 A.3d 430
(Pa. 2014) (plurality). The Molina
Court specifically held that the use of properly admitted evidence of a criminal
defendantâs pre-arrest silence to infer guilt violates Article I, Section 9 of the
Pennsylvania Constitution. Molina,
104 A.3d at 453
. The same day that it
announced its decision in Molina, our Supreme Court also announced its
decision in Commonwealth v. Adams,
104 A.3d 511
(Pa. 2014) (plurality).
The Adams Court held as follows:
- 14 -
J-S21024-24
[Our Supreme] Court has previously concluded that mere
reference to a defendantâs silence does not necessarily impinge
constitutional rights when guilt is not implied. While we have
interpreted the constitutional right against self-incrimination
generally to prohibit prosecutors from referencing a defendantâs
silence as substantive evidence of guilt, this Court has also
concluded that the right against self-incrimination is not burdened
when the reference to silence is circumspect and does not create
an inference of an admission of guilt. . . . Even an explicit
reference to silence is not reversible error where it occurs in a
context not likely to suggest to the jury that silence is the
equivalent of a tacit admission of guilt.
Adams,
104 A.3d at 517
(citation omitted and formatting altered).
Commonwealthâs Opening Statement
Appellant first alleges that the Commonwealth improperly alluded to his
pre-arrest silence. Appellantâs Brief at 30. In his brief, Appellant directs this
Court to pages 56-57 of the March 2, 2007 notes of testimony from the trial.
See
id.
At no point in the cited testimony is Appellantâs pre-arrest silence
referenced.
âIt is an appellantâs duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with pertinent
discussion, with references to the record and with citations to legal
authorities.â Commonwealth v. Westlake,
295 A.3d 1281, 1286
(Pa.
Super. 2023) (citations omitted, some formatting altered, and emphasis
added). âIt is not this Courtâs responsibility to comb through the record
seeking the factual underpinnings of an appellantâs claim. Further, this Court
will not become counsel for an appellant and develop arguments on an
appellantâs behalf.â Commonwealth v. Samuel,
102 A.3d 1001, 1005
(Pa.
- 15 -
J-S21024-24
Super. 2014) (citations omitted); see also Commonwealth v. Tchirkow,
160 A.3d 798, 804
(Pa. Super. 2017) (âAlthough this Court is willing to
construe liberally materials filed by a pro se litigant, a pro se appellant enjoys
no special benefitâ). An appellantâs failure to adequately develop an argument
results in waiver of the claim. Commonwealth v. Romeo,
153 A.3d 1084,
1090
(Pa. Super. 2017); see also Pa.R.A.P. 2119(c). Accordingly, Appellantâs
claim with regard to any reference to his pre-arrest silence in the
Commonwealthâs opening statement to the jury is waived. See Romeo,
153
A.3d at 1090
.
Officer Dayton Bennettâs Testimony
Appellant next contends that the Commonwealth improperly elicited
testimony regarding his pre-arrest silence from Philadelphia Police Officer
Dayton Bennett. Appellantâs Brief at 31. As part of his testimony, Officer
Bennett stated that, when he responded to a dispatch for a person screaming,
Ms. Carter told him that Appellant had killed someone a week or two ago. See
N.T. Trial, 3/5/07, at 39-41. Officer Bennett further testified that upon
hearing Ms. Carter say this, Appellant âretreated to the kitchen area and after
grabbing the baby out of her hand grabbed a kitchen knife, a large kitchen
knife, and held the baby in his left hand, the knife in his right hand[.]â Id. at
41-42. The remaining testimony cited by Appellant addresses how Appellant
was holding the knife in the kitchen, legal argument by Appellantâs counsel
with regard to the use of inconsistent statements, and Appellantâs actions after
Ms. Carter told the police that he had killed someone a week or two ago. Id.
- 16 -
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at 52-53, 60-62. At no point did the Commonwealth or Officer Bennett
reference Appellantâs pre-arrest silence for the purpose of drawing a negative
inference. Accordingly, Appellantâs claim is without arguable merit and no
relief is due. See Adams,
104 A.3d at 517
; Sandusky,
203 A.3d at 1043
.
Detective Carl Watkinsâ Testimony
Next, Appellant alleges that the Commonwealth, through the testimony
of Detective Carl Watkins, improperly elicited testimony regarding Appellantâs
pre-arrest silence. Appellantâs Brief at 31. First, the record reflects that
Detective Watkins stated that the police had attempted to re-interview
Appellant with regard to the underlying homicide, and that no such re-
interview occurred. N.T. Trial, 3/7/07, at 126. In the remaining testimony
cited by Appellant, Detective Watkins described his unsuccessful efforts to
obtain an interview with Appellant. Id. at 129-34. Detective Watkins also
stated that because Appellant did not come in for another interview, Detective
Watkins ordered more of Appellantâs phone records. Id. at 133.
Based on our review of the record, there is no basis to conclude that
Detective Watkins testified about any sort of negative inference with regard
to Appellantâs pre-arrest silence. Accordingly, because Appellant has failed to
establish that his claim has arguable merit, he is not entitled to relief. See
Adams,
104 A.3d at 517
; Sandusky,
203 A.3d at 1043
.
Denise Alexanderâs Testimony
Appellant alleges that during cross-examination of his mother, Denise
Alexander, the Commonwealth attempted to draw negative inferences about
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Appellantâs pre-arrest silence. Appellantâs Brief at 31. In the testimony cited
by Appellant, Ms. Alexander testified that homicide detectives told her that
they wished to interview Appellant, and Appellant did not tell her that he did
not want to go. See N.T. Trial, 3/8/07, at 145.
However, on this record, there is no basis to conclude that this testimony
represents an attempt by the Commonwealth to draw a negative inference
upon Appellantâs exercising of his pre-arrest right to remain silent.
Accordingly, Appellant is not entitled to relief, as this claim is of no arguable
merit. See Adams,
104 A.3d at 517
; Sandusky,
203 A.3d at 1043
.
Commonwealthâs Closing Argument
Finally, Appellant alleges that the Commonwealth drew a negative
inference to Appellantâs pre-arrest silence during its closing argument.
Appellantâs Brief at 31. Specifically, Appellant cites to the following excerpt
from the Commonwealthâs closing argument:
[Appellant] went through the most horrible experience of his life,
his friend died. He doesnât want to go again. Come on. Doesnât
want to come. Watkins, a liar? No. Mom said it, I told him to go.
He wouldnât go. Wouldnât tell me why.
They did talk about this fear. Fear of what? There is no evidence
of somebody threatening and say you better not go to the police.
No. [Detective] Rocks is looking for them. Mom admits they were
all over the house. They were looking and he was alive. I didnât
know where he was. Counsel says, well, he was at Home Depot
because he was working. Everything I heard is heâs an electronics
dealer. I was waiting for a Best Buy I.D. car or Circuit City or
whatever because he does that. I heard nothing about
construction.
But he is at Home Depot. What does he do? Police are looking
for him. Mom verifies she knew. He knows, although she said I
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didnât see him, but sheâs a mom, thatâs her baby. I donât fault her
for that. But he knew, knew to the point when two cops are asking
you questions and checking your arm, he pulls off and runs. What
stops him? The Home Depot doors. Bang. Because he was
moving too fast, that thing, and there you go. What does he say?
You got me. You got me.
N.T. Trial, 3/9/07, at 111-12.
Based on our review of this record, there is no basis to conclude that
the Commonwealth made any negative inference to Appellantâs choosing to
exercise his right to remain silent pre-arrest. Accordingly, Appellantâs claim
has no arguable merit and he is not entitled to relief. See Adams,
104 A.3d
at 517
; Sandusky,
203 A.3d at 1043
.
Prior Bad Acts
In his next issue, Appellant alleges that Attorney Farrell was ineffective
for failing to object to evidence of Appellantâs prior bad acts. Appellantâs Brief
at 36. Specifically, Appellant contends that the Commonwealth âpresented
extensive testimony establishing that [Appellant] engaged in unrelated
criminal acts, i.e., that [Appellant] âkilledâ an unspecified âsomeoneâ and
threatened police with a knife.â
Id.
Appellant further argues that Attorney
Farrell was ineffective for failing to request a jury instruction with regard to
the prior bad acts evidence. Id. at 38.
Pennsylvania Rule of Evidence 404(b) generally prohibits â[e]vidence of
a crime, wrong, or other actâ when such evidence is offered to show âthat on
a particular occasion the person acted in accordance with the characterâ
shown by that crime, wrong, or other act. Pa.R.E. 401(b)(1). There are,
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however, exceptions to this general rule and â[t]his evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.â Pa.R.E. 404(b)(2). Courts have also recognized another
exceptionâres gestaeâto give essential background information to the crimes
on trial. See Commonwealth v. Reid,
99 A.3d 427, 451
(Pa. 2014).
However, even if evidence falls within one of the exceptions, the probative
value of the evidence must outweigh its potential for unfair prejudice. Pa.R.E.
404(b)(2). Unfair prejudice is defined as âa tendency to suggest decision on
an improper basis or to divert the juryâs attention away from its duty of
weighing the evidence impartially.â Pa.R.E. 403, cmt. When weighing
probative value and unfair prejudice, we âmay consider whether and how
much such potential for unfair prejudice can be reduced by cautionary
instructions.â Pa.R.E. 404, cmt.
All evidence against a defendant in a criminal case will be prejudicial.
Commonwealth v. Peer,
684 A.2d 1077, 1083
(Pa. Super. 1996). Our
determination in this context, however, must be whether evidence is unfairly
prejudicial. Id.; see also Pa.R.E. 404(b)(2). While the trial court must
exclude relevant but unfairly prejudicial evidence, we are ânot required to
sanitize the trial to eliminate all unpleasant facts from the juryâs consideration
where those facts form part of the history and natural development of the
events and offenses with which [a] defendant is charged.â Commonwealth
v. Broaster,
863 A.2d 588, 592
(Pa. Super. 2004) (quotation omitted). In
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order for it to be excluded, relevant evidence must be âso prejudicial that it
would inflame the jury to make a decision based upon something other than
the legal propositions relevant to the case.â
Id.
(quotation omitted).
Based on our review, we find that Appellantâs claim lacks arguable merit.
On this record, the testimony regarding Ms. Carterâs statements to the police
that Appellant had killed someone a week or two prior to the police responding
to Ms. Carterâs residence on June 12, 2003, is part of the history and natural
development of the events and offenses with which Appellant was charged in
the instant case. Broaster,
863 A.2d at 592
. Likewise, Appellantâs response
to Ms. Carterâs allegationsâpulling a knife and threatening police officersâ
was likewise part of the history of the events and offenses with which
Appellant was charged. See
id.
Accordingly, we find that Appellantâs third
issue lacks arguable merit, and he is not entitled to relief. See Sandusky,
203 A.3d at 1043
.
Failure to Object to Closing Jury Instruction
Appellantâs next two issues relate to Attorney Farrellâs failure to object
to the trial courtâs jury instructions at the close of trial. First, Appellant
contends that Attorney Farrell was ineffective for failing to raise an objection
to the trial courtâs instruction to the jury to ââgive weightâ to testimony about
previous statements made by witnesses.â Appellantâs Brief at 42 (citations
omitted). Appellant argues that this âinstruction invaded the province of the
jury and relieved the prosecution of its burden of proofâalthough other
instructions also directed jury consideration of previous statements.â
Id.
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When reviewing a trial courtâs jury instructions, the following principles
govern:
[O]ur scope of review is to determine whether the trial court
committed a clear abuse of discretion or an error of law which
controlled the outcome of the case. A jury charge will be deemed
erroneous only if the charge as a whole is inadequate, not clear or
has a tendency to mislead or confuse, rather than clarify, a
material issue. A charge is considered adequate unless the jury
was palpably misled by what the trial judge said or there is an
omission which is tantamount to fundamental error.
Commonwealth v. Barker,
963 A.2d 495, 507
(Pa. Super. 2008) (citation
omitted).
Moreover,
we must review the jury charge as a whole to determine if it is fair
and complete. A trial court has wide discretion in phrasing its jury
instructions, and can choose its own words as long as the law is
clearly, adequately, and accurately presented to the jury for its
consideration. The trial court commits an abuse of discretion only
when there is an inaccurate statement of the law.
Id.
(citation omitted).
Our Supreme Court has stated that â[t]he Suggested Standard Jury
Instructions themselves are not binding and do not alter the discretion
afforded trial judges in crafting jury instructions; rather, as their title
suggests, the instructions are guides only.â Commonwealth v. Simpson,
66 A.3d 253
, 274 n.24 (Pa. 2013) (citation omitted and formatting altered).
During its charge, the trial court gave the following general jury
instruction regarding the use of prior statements:
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I will give you some factors that you should consider when judging
credibility and deciding whether or not you believe the testimony
presented by the witnesses here in court. Was the witness able
to see, hear or know about the things which he or she testified to?
Some witnesses testified to statements made and you must give
weight to that testimony of that witness. Did the witness see that
or did the witness hear that? How well could the witness
remember and describe the things about which he or she testified?
Was the ability of the witness to see, hear, know, remember or
describe those things affected by youth, old age or any physical,
mental or intellectual deficiency? Did the witness testify in a
convincing manner? How did the witness look while he or she was
testifying, act, speak, while he or she is testifying? Was the
witnessâ testimony uncertain, confused, self-contradictory or
evasive? Did the witness have any interest in the outcome of the
case, bias, prejudice or other motive that might affect the witnessâ
testimony? How well does the testimony of the witness square
with the other evidence in the case including the testimony of
other witnesses? Was it contradicted or supported by the
testimony in evidence? Does the testimony make sense?
N.T. Trial, 3/9/07, at 129-30. The trial court further instructed the jury as
follows:
You have heard evidence that witnesses may have made
statements on an earlier occasion that may have been
inconsistent with his or her present testimony -- may have made
statements on an earlier occasion that may have been consistent
with his or her trial testimony or may have been testified on prior
occasions that may have been inconsistent with his or her present
testimony. Or may have testified on prior occasions that may be
consistent with his or her trial testimony. There are different rules
concerning how youâre to consider those prior inconsistent or
consistent statements.
First, to the extent that you find a witnessâ trial testimony
inconsistent with an earlier part of the testimony at an earlier
proceeding or with a prior verbatim statement that was adopted
by the witness at the time he or she gave it, you may, if you
choose, regard this evidence as proof of the truth of anything that
the witness said in the earlier prior testimony or statement. You
may also consider this evidence to help you judge the credibility
of and weight of the testimony given by the witness at the trial.
- 23 -
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You may not regard evidence of an earlier inconsistent statement
that was not prior sworn testimony or prior verbatim statement
adopted by the witness at the time he or she gave it as proof of
the truth of anything said in that statement. You may consider
this evidence of a prior inconsistent statement for one purpose
only: To help you judge the credibility and weight of the testimony
given by the witness at this trial.
Next, to the extent that you find that the witnessâ trial testimony
was consistent with prior sworn testimony at a prior proceeding
with a prior verbatim statement, you may only consider this for
one purpose only; that is, to help you judge the credibility and
weight of the testimony given by the witness in this trial.
Id. at 133-135; cf. Pa. SSJI (Crim) 4.08A(2) (âYou may consider this evidence
for one purpose only, to help you judge the credibility and weight of the
testimony given by the witness at this trial. You may not regard evidence of
an earlier inconsistent statement as proof of the truth of anything said in that
statementâ).
Following our review, we find that the trial courtâs jury instructions
clearly, adequately, and accurately presented the pertinent points of law for
the juryâs consideration. See Barker,
963 A.2d at 507
. Under these
circumstances, we conclude that Appellant failed to establish any arguable
merit to his claim that Attorney Farrell should have raised this issue on direct
appeal. See Sandusky,
203 A.3d at 1043
. Accordingly, Appellant is not
entitled to relief.
Failure to Object to Omitted Instructions
In his next issue, Appellant contends that Attorney Farrell was
ineffective for failing to object to the trial courtâs jury instructions because the
trial court âomitted pertinent instructions.â Appellantâs Brief at 47.
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Specifically, Appellant argues that the trial court failed to give instructions
regarding the Commonwealthâs grant of immunity to Maurice Carter, the
testimony of Michelle Carter as an accomplice, a guilt by association
instruction relating to Ms. Carterâs convictions for perjury, Appellantâs right to
remain silent, and a limiting instruction regarding evidence of Appellantâs prior
bad acts. Id. at 49-52. We will address each claim separately.
Immunity Instruction
Appellant also argues that although the trial court granted defense
counselâs request to instruct the jury about the Commonwealthâs grant of
immunity to Maurice Carter, the trial court did not provide that jury
instruction, and Attorney Farrell failed to object to its omission. Id. at 48-49
(citing N.T. Trial, 3/6/07, at 84-85).
While the trial court did not specifically address Mr. Carterâs immunity
in its closing instructions to the jury, the record reflects that the jury was
aware of the circumstances surrounding Mr. Carterâs testimony. Indeed, in
the presence of the jury, Mr. Carter admitted that he was testifying at trial
because the Commonwealth granted him immunity. 10 As stated above, the
trial court provided the jury with general instructions as to the factors it should
consider when determining whether the witnesses were credible. See N.T.
Trial, 3/9/07, at 129-30.
____________________________________________
10 In the context of direct examination, the Commonwealth described
immunity to Mr. Carter as that he âcannot be charged with any crime that [he]
may say [he] did or didnât do. The only thing [he] canât be precluded from is
if [he] commit[s] perjury.â N.T. Trial, 3/6/07, at 9.
- 25 -
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Based upon our review of the record, we find that the trial court did not
abuse its discretion when it did not provide an immunity instruction to the jury
during its closing instructions. See Barker,
963 A.2d at 507
. Accordingly,
Appellant has not established that his claim of ineffective assistance of counsel
has arguable merit, and he is not entitled to relief. See Sandusky,
203 A.3d
at 1043
.
Accomplice Testimony Instruction
Appellant next contends that Attorney Farrell was ineffective for failing
to request an accomplice testimony instruction with regard to Michelle Carterâs
testimony. Appellantâs Brief at 50. Appellant argues that the Commonwealth
âcharacterized Michelle Carter as an accomplice, and charged her as
[Appellantâs] co-defendant.â
Id.
In support of this claim, Appellant cites the
Commonwealthâs remark during trial that Ms. Carter knew the underlying
crime was happening as it was happening.
Id.
(citing N.T. Trial, 3/9/07, at 3,
94-97).
The Commonwealth responded by arguing that Ms. Carter was not
charged as a co-defendant in this case. Commonwealthâs Brief at 25.
Appellant has not cited to any evidence of record establishing that Ms.
Carter was charged as a co-defendant in this case. Moreover, our review of
the Commonwealthâs closing argument to the jury does not reveal that Ms.
- 26 -
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Carter was charged as an accomplice in this case. 11 Accordingly, Appellant
was not entitled to an instruction about an accompliceâs testimony; therefore,
his claim is without arguable merit. See Sandusky,
203 A.3d at 1043
.
Guilt by Association Instruction
Next, Appellant argues that he was entitled to a guilt by association jury
instruction, stating that the Commonwealth ârelied on [Ms. Carterâs guilty
pleas for three counts of perjury] in arguing for guilty verdicts.â Appellantâs
Brief at 51 (citation omitted).
It is well-settled that in cases in which a co-defendant has entered a
guilty plea, and evidence of that guilty plea is introduced at the trial of the
remaining co-defendant(s), the remaining co-defendant(s) are entitled to a
cautionary jury instruction. Commonwealth v. Geho,
302 A.2d 463
, 465-
66 (Pa. Super. 1973) (en banc). âIt is incumbent, therefore, upon the trial
judge to give adequate and clear cautionary instructions to the jury to avoid
âguilt by associationâ as to the defendant being tried.â
Id. at 466
(citation
omitted).
As discussed above, Ms. Carter was not a co-defendant in the instant
case. Accordingly, Appellant was not entitled to a guilt by association jury
instruction, and his claim lacks arguable merit. See
id. at 465-66
; Sandusky,
203 A.3d at 1043
.
____________________________________________
11 During trial, Ms. Carter stated that she had entered guilty pleas for three
counts of perjury. N.T. Trial, 3/2/07, at 85. Ms. Carterâs perjury charges
arose from her grand jury testimony in the instant case. Id. at 145-46; 208-
10; see also Commonwealth v. Carter, CP-51-CR-1205401-2005.
- 27 -
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Right to Remain Silent Instruction
Appellant next contends that he was entitled to a no-adverse inference
instruction regarding his pre-arrest silence. Appellantâs Brief at 52. While he
concedes that the trial court provided a no-adverse influence instruction with
regard to his decision to not testify at trial, Appellant argues that because the
Commonwealth âpresented extensive testimonial evidence at [Appellantâs]
silence and cessation of communications with police, and about [Appellantâs]
silence when Michelle Carter stated to arresting officers that he killed someone
two weeks before,â he was entitled to an instruction on a defendantâs right to
remain silent generally. Id.
As we have stated above, the mere reference to the fact that a
defendant has chosen to remain silent does not infringe upon his constitutional
rights to do so. See Adams,
104 A.3d at 517
. For the reasons that we
discuss above, Appellant was not entitled to a jury instruction regarding his
right to remain silent; therefore, his claim lacks arguable merit. See
Sandusky, 103 A.3d at 1043.
Prior Bad Acts Instruction
Finally, Appellant argues that the Commonwealth âpresented extensive
testimonial evidence about other crimes attributed to [Appellant].â The trial
court jury charge had no instruction whatsoever to caution the jury in its
consideration of this kind of evidence.â Appellantâs Brief at 53. Appellant
contends that he was prejudiced because had Attorney Farrell requested a
jury instruction on the prior bad acts evidence, âthe jury would have
- 28 -
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attempted to follow such instructions in their deliberations. Conversely, the
uninstructed jury was far more likely to undertake improper consideration of
the evidence[.]â Id. at 54.
â[W]hen evidence of a defendantâs prior conduct or bad acts is admitted,
the defendant is entitled upon request to a jury instruction explaining the
limited purpose of such evidence.â Commonwealth v. Hutchinson,
25 A.3d
277, 305
(Pa. 2011) (citation omitted). This Court has explained that
âcounselâs failure to request a cautionary instruction regarding evidence of
other crimes or prior bad acts does not constitute per se ineffectiveness;
rather, in order to obtain relief under such a claim, a defendant must still
satisfy each of the prongs of the test for ineffective assistance of counsel.â
Commonwealth v. Johnson,
179 A.3d 1105, 1119
(Pa. Super. 2018)
(citation omitted and formatting altered).
As we stated above, the evidence at issue addresses the natural history
and development of the case and the charges against Appellant. See
Broaster,
863 A.2d at 592
. In the context of an ineffective assistance of
counsel proceeding, prejudice is defined as but for counselâs failure to request
a jury instruction regarding evidence of Appellantâs prior bad acts, âthere is a
reasonable probability that the outcome of the proceedings would have been
different.â Sandusky,
203 A.3d at 1044
. Appellant does not allege that the
outcome of his trial would have been different but for Attorney Farrellâs failure
to request a jury instruction regarding prior bad acts evidence; accordingly,
- 29 -
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Appellant has not established the prejudice prong of ineffective assistance of
counsel, and he is not entitled to relief. See
id.
Failure to Call a Witness
Appellant next alleges that Attorney Farrell was ineffective for failing to
call Philadelphia Police Officer Craig Van Sciver as a defense witness.
Appellantâs Brief at 55. Appellant argues that Officer Van Sciver would have
been able to ârebut prosecution evidence [and] otherwise corroborate or
confirm the presence of visible injuries and burn marks on [Appellantâs] arm
on May 6, 2003, when police first encountered him.â
Id.
In response, the Commonwealth argues that Attorney Farrell referenced
Officer Van Sciverâs observations during his cross-examination of Officer Van
Sciverâs partner, Officer Steven Johnson. Commonwealthâs Brief at 27.
Therefore, the Commonwealth concludes that âbecause any potentially helpful
information was elicited on cross-examination, [Appellant] cannot prove that
he was prejudiced by the absence of Officer Van Sciver.â
Id.
This Court has explained:
To prove arguable merit based on trial counselâs failure to call a
witness, a PCRA petitioner must show that the witness existed and
was available; counsel was aware of, or had a duty to know of the
witness; the witness was willing and able to appear; and the
proposed testimony was necessary in order to avoid prejudice.
Commonwealth v. Robinson,
278 A.3d 336, 343
(Pa. Super. 2022) (citation
and internal quotation marks omitted). âIn this context, prejudice means that
the uncalled witnessesâ testimony would have been beneficial under the
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circumstances of the case.â
Id.
(citation and internal quotation marks
omitted).
Additionally, a PCRA petitioner must demonstrate that âtrial counsel had
no reasonable basis for his or her chosen trial strategyâ as the âalternative
strategy offered a potential for success substantially greater than the course
actually pursued.â
Id. at 345
. Finally, with respect to prejudice, the petitioner
must establish âthat there is a reasonable probability that, but for counselâs
unprofessional errors, the result of the proceeding would have been different.â
Id.
In the instant case, the record reflects that Officer Johnson testified that
Appellant alleged that he had been duct-taped and burned with cigarettes.
See N.T., 3/6/07, at 112. Officer Johnson stated that he did not see any
marks, bruises, or burns on his skin. Id.; see also id. at 116-18. On cross-
examination, Officer Johnson stated that the police report indicated that
Officer Van Sciver noted the presence of âvisible marks.â Id. at 121.
As summarized by a previous panel of this Court, Appellant initially told
the police that he had been kidnapped and robbed and was only released when
Ms. Carter paid a ransom. See Alexander, 2551 EDA 2007 at *2. This Court
also noted that Appellant âgave the police inconsistent stories about where he
had been picked up.â Id. This Court summarized Appellantâs inconsistent
accounts to the police as follows:
[Appellant] claimed he had passed out from a beating and when
he regained consciousness in the vicinity of 22 nd Street and Lehigh
Avenue, the kidnappers were gone. He also said he was released
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by the kidnappers at a railroad track near 22 nd and Sedgley
Streets and wandered around several blocks until he found a
working pay phone. He called home and was picked up by his
girlfriend and her brother, Maurice Carter, at Broad Street and
Lehigh Avenue. Then he went home to sleep before reporting the
incident. Finally, he told the police that he had been released at
gunpoint in an alley and walked to his auntâs house in the 3500
block of Old York Road.
Id. at *2 n.2.
Moreover, as noted above, the Commonwealth presented evidence at
trial that Ms. Carter indicated to the police that Appellant had killed someone
two weeks prior. See N.T. Trial, 3/5/07, at 39-41. Further, the
Commonwealth presented evidence that Appellant told Mr. Carter that he âset
up the guy who got killed. [Appellant] had some guys run up on him and
[Appellant] was going on with the ride like [Appellant] was getting robbed,
too. [Appellant] said, We didnât get no money out of it.â N.T. Trial, 3/6/07,
at 36. Appellant further told Mr. Carter that if the police were to find out,
Appellant would âtake the rap.â Id. at 36-37.12
Based on our review of the record, we find that Appellant was not
prejudiced by Attorney Farrellâs failure to call Officer Van Sciver as a witness.
Therefore, no relief is due. See Robinson,
278 A.3d at 343
.
Failure to Raise Confrontation Clause Objection
In his seventh issue, Appellant contends that Attorney Farrell was
ineffective for failing to object to testimony from Dr. Edwin Lieberman on
____________________________________________
12Mr. Carter recanted his statements to the police during trial. N.T. Trial,
3/6/07, at 46-47.
- 32 -
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Confrontation Clause grounds. Appellantâs Brief at 59. Specifically, Appellant
argues that Dr. Lieberman testified about the contents of an autopsy report
authored by Dr. Ian Hood and hospital records prepared by Dr. Jeffrey Geller.
Id.
Further, Appellant states that the evolution of Confrontation Clause
jurisprudence from both the Supreme Court of the United States and the
courts of this Commonwealth âwas sufficiently developed to support an
objection to exclude Dr. Liebermanâs hearsay testimony.â Id. at 60-61.
It is well settled that âcounsel cannot be deemed ineffective for failing
to anticipate a change in the law.â Commonwealth v. Parker,
249 A.3d
590, 596
(Pa. Super. 2021) (quoting Commonwealth v. Hughes,
865 A.2d
761, 810
(Pa. 2004)). âWe have held repeatedly that counselâs stewardship
must be judged in light of the available alternatives and that he cannot be
expected to raise motions unsupported by existing law.â
Id.
(quoting
Commonwealth v. Miller,
431 A.2d 233, 235
(Pa. 1981)).
âUnder the Confrontation Clause of the Sixth Amendment, a criminal
defendant has a right to confront witnesses against him.â Commonwealth
v. Rivera,
773 A.2d 131, 137
(Pa. 2001) (citation omitted). âWe have held
that the Confrontation Clause of the Pennsylvania Constitution affords
defendants the same rights as the Sixth Amendment of the United States
Constitution.â Commonwealth v. Yohe,
39 A.3d 381
, 384 n.4 (Pa. Super.
2012) (citation omitted). A previous panel of this Court described our
jurisprudence in Confrontation Clause cases, starting with the Supreme Court
- 33 -
J-S21024-24
of the United Statesâ decision in Crawford v. Washington,
541 U.S. 36
(2004):
The Crawford Court defined the statements covered by the
Confrontation Clause as follows:
Various formulations of this core class of testimonial
statements exist: ex parte in-court testimony or its
functional equivalentâthat is, material such as affidavits,
custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to used
prosecutorially, extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions; statements
that were made under circumstances which would lead an
objective witness reasonably to believe that the statement
would be available for use at a later trial[.]
Crawford,
541 U.S. at 51-52
(internal citations and quotation
marks omitted).
In Melendez-Diaz v. Massachusetts,
557 U.S. 305, 310
(2009), the Supreme Court determined that certificates of forensic
analysis are within the âcore class of testimonial statementsâ
described by the Crawford Court. The Court ultimately held that
the individuals who performed the forensic analyses were
witnesses for the purposes of the Sixth Amendment, and thus the
defendant âwas entitled âto be confronted withâ [them] at trial.â
Id. at 311
, citing Crawford,
541 U.S. at 54
(internal quotation
marks omitted).
Following the High Courtâs announcement of Melendez-Diaz, this
court considered Commonwealth v. Barton-Martin,
5 A.3d 363
(Pa. Super. 2010). In Barton-Martin, the defendant was
convicted of DUI-highest rate, which is a conviction that requires
the admission of BAC into evidence.
Id. at 366, 370
. In an effort
to meet that evidentiary requirement, the Commonwealth called
the custodian of records from Hanover Hospital and introduced the
defendantâs BAC report as a business record.
Id. at 368
. The
Commonwealth did not call the laboratory technician who
performed the test on the defendantâs blood sample to testify.
Id.
This court held that the admission of [the defendantâs] BAC report
through the custodian of recordsâ testimony violated the
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defendantâs right to confrontation, absent any evidence that the
laboratory technician was unavailable for trial and the defendant
had a prior opportunity to conduct cross-examination.
Id. at 369
.
Shortly after Barton-Martin was decided, the Supreme Court of
the United States announced its decision in Bullcoming v. New
Mexico,
564 U.S. 647
(2011). In Bullcoming, the defendant
was charged with driving while intoxicated and stood trial.
Id. at
651
. At trial, the prosecution sought to introduce a BAC report
reflecting that the defendantâs BAC was above the legal limit.
Id.
Instead of calling the analyst who signed the certification of the
BAC report to testify at trial, the prosecution called another
analyst from the same laboratory who was familiar with laboratory
procedures.
Id.
The High Court granted certiorari to determine whether the
Confrontation Clause:
permit[s] the prosecution to introduce a forensic laboratory
report containing a testimonial certification, made in order
to prove a fact at a criminal trial, through the in-court
testimony of an analyst who did not sign the certification or
personally perform or observe the performance of the test
reported in the certification.
Id. at 657
(citation omitted). Ultimately, the Court disapproved
of the type of âsurrogate testimonyâ permitted by the trial court
in Bullcoming because the surrogate witness could not âconvey
what the [analyst] performing the test knew or observed about
the events [her] certification concerned, i.e., the particular test
and testing process [she] employed.â
Id. at 661
(footnote
omitted).
Commonwealth v. Hajdarevic,
236 A.3d 87, 90-91
(Pa. Super. 2020).
In Commonwealth v. Brown,
139 A.3d 208
(Pa. Super. 2016), this
Court held that autopsy reports are testimonial in nature, thereby invoking
the Confrontation Clause. Brown,
139 A.3d at 216
. Accordingly, testimony
from the author of the report is required to satisfy the Confrontation Clause.
Id.
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Appellantâs trial occurred nine years before this Court announced its
decision in Brown. Because counsel cannot be deemed ineffective for failing
to anticipate subsequent changes in the law, we discern no error by the PCRA
court in rejecting Appellantâs claim that trial counsel should have objected to
Dr. Liebermanâs testimony on Confrontation Clause grounds. Therefore,
because Appellantâs claim has no arguable merit, he is not entitled to relief.
See Parker,
249 A.3d at 596
; Sandusky,
203 A.3d at 1043
.
Use of Prior Statements During Trial
Appellant next contends that Attorney Farrell rendered ineffective
assistance for failing to object âto the presentation, of substantive evidence,
of witnessesâ previous out-of-court statements.â Appellantâs Brief at 67.
Specifically, Appellant alleges that the Commonwealth âpresented four lay
witnesses and eight police witnesses to testify about witnessesâ prior
statements, with the police testimony frequently consisting of the witness
simply reciting, or reading, the previous statement into the record.â Id. at
67-68 (some formatting altered; footnote omitted). Appellant also claims that
Attorney Farrell was ineffective for failing to object to the trial courtâs jury
instruction with regard to the use of previous statements. Id. at 68-69.
In his brief, Appellant concedes that counsel raised numerous objections
to the use of prior statements throughout trial, as well as to the trial courtâs
jury instructions. See id. at 68 (citing N.T. Trial, 2/23/07, at 17-23; N.T.
Trial, 3/5/07, at 43-35, 53-54; N.T. Trial, 3/7/07, at 140; N.T. Trial, 3/8/07,
at 19-23; N.T. Trial, 3/9/07, at 2-5); id. at 69 (citing N.T. Trial, 3/9/07, at
- 36 -
J-S21024-24
164). Because the record belies Appellantâs claims that Attorney Farrell failed
to object to the use of prior statements throughout trial, our analysis will be
limited to the failure to raise this issue on direct appeal.
In the context of alleging ineffective assistance of Attorney Farrell for
failing to raise this issue on direct appeal, Appellantâs argument as to the
prejudice prong of ineffective assistance of counsel is limited to: â[t]he
appellate court probably would have granted relief had counsel raised this
claim, thus counselâs failure also prejudiced [Appellant] on appeal.â
Appellantâs Brief at 73.
Here, Appellant raises a boilerplate claim of prejudice resulting from
Attorney Farrellâs purported failure to raise this issue on direct appeal. As this
Court has stated previously, a boilerplate allegation and bald assertion of
prejudice âcannot satisfy a petitionerâs burden to prove that counsel was
ineffective.â Sandusky,
203 A.3d at 1044
(citing Commonwealth v. Paddy,
15 A.3d 431, 443
(Pa. 2011)). âA failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of ineffectiveness.â
Id.
(citing Commonwealth v. Daniels,
963 A.2d 409, 419
(Pa. 2009) (citation
omitted)). Accordingly, his claim of ineffective assistance of counsel must fail.
Id.
Appellantâs Waiver of his Right to Testify at Trial
Appellant next contends that Attorney Farrell was ineffective in advising
Appellant to waive his right to testify in his own defense at trial. Appellantâs
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Brief at 74. Specifically, Appellant argues that his decision not to testify was
based solely on the advice of trial counsel. Id. at 78.
âThe decision of whether or not to testify on oneâs own behalf is
ultimately to be made by the defendant after full consultation with counsel.â
Commonwealth v. Michaud,
70 A.3d 862, 869
(Pa. Super. 2013) (citation
omitted).
In order to sustain a claim that counsel was ineffective for failing
to advise the appellant of his rights in this regard, the appellant
must demonstrate either that counsel interfered with his right to
testify, or that counsel gave specific advice so unreasonable as to
vitiate a knowing and intelligent decision to testify on his own
behalf.
Id.
(citation omitted). âAdditionally, where a defendant voluntarily waives his
right to testify after a colloquy, he generally cannot argue that trial counsel
was ineffective in failing to call him to the stand.â Sandusky,
203 A.3d at
1075
(quoting Commonwealth v. Rigg,
84 A.3d 1080, 1086
(Pa. Super.
2014)) (some formatting altered).
Instantly, the PCRA court reached the following conclusion:
The record reflects that Appellant made his own informed decision,
after consultation with counsel, not to testify at the guilt phase of
his trial. The advice he received was not inaccurate or
unreasonable, and it did not vitiate his ability to make his own
knowing and intelligent choice.
* * *
Here, counsel stated on the record that he had specifically advised
Appellant not to testify at the guilt phase because Appellant was
charged with capital murder and there was a chance that, if
Appellant testified and the jury disbelieved him, it could have a
detrimental impact on Appellantâs ability to testify at the penalty
- 38 -
J-S21024-24
phase. This was not unreasonable advice. Appellant was, indeed,
potentially facing the death penalty at that juncture, and counselâs
apprehensions of the possible risks at the guilt phase were not
unfounded.
PCRA Ct. Op. at 7-8.
The record reflects that Appellant knowingly, intelligently, and
voluntarily waived his right to testify in his own defense. See N.T. Trial,
3/8/07, at 155-59. Appellant specifically stated that at no point during the
course of trial had counsel not done anything requested by Appellant. Id. at
157-58. Appellant affirmatively stated that he was satisfied with his counsel.
Id. at 158. Appellant re-affirmed his decision not to testify on his own behalf
on the final day of trial, stating that he was not testifying due to the threat of
the death penalty. N.T. Trial, 3/9/07, at 10.
As stated above, a defendant cannot subsequently claim ineffective
assistance of counsel after having affirmatively waived his right to testify after
an on-the-record colloquy. See Sandusky,
203 A.3d at 1075
. Accordingly,
we find no error on the part of the PCRA court in denying Appellantâs PCRA
petition on this issue and no relief is due. See
id. at 1043
.
Ineffective Assistance of PCRA Counsel
In his final issue, Appellant raises a challenge to all previous PCRA
counsel for âfailing to raise meritorious claims completely, or in failing to fully,
properly develop the claims that were raised, in the many petitions and
arguments presented to the PCRA court.â Appellantâs Brief at 85. Appellant
further states that he âwas represented by six (6) different attorneys over the
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twelve-year span while his PCRA petition was pending, some of whom took no
action at all, while some filed amended or supplemental petitions.â Id.13 In
his brief, Appellant raises a layered claim of ineffective assistance of counsel.
Id. at 88.
It is axiomatic that if a petitioner cannot prove the underlying claims of
ineffective assistance of counsel, then his derivative claims of PCRA counsel
ineffectiveness must fail. Chmiel,
30 A.3d at 1128
.
Here, as noted previously, Appellant has failed to establish his that his
underlying claims had merit. Accordingly, he is not entitled to relief on his
derivative claims concerning PCRA counselâs ineffectiveness. For these
reasons, we affirm.
Order affirmed. Jurisdiction relinquished.
____________________________________________
13 As noted by the Commonwealth, Appellantâs most recent amended PCRA
petition supersedes any previously filed PCRA petitions. The record reflects
that Attorney Himebaugh filed the most recent amended PCRA petition on
Appellantâs behalf on September 28, 2021. See Commonwealthâs Brief at 16
n.3; see also, e.g., Commonwealth v. Renchenski,
52 A.3d 251, 259
(Pa.
2012). Accordingly, only Attorney Himebaughâs performance will be
considered in determining whether Appellant has sufficiently pled and proven
the three elements of ineffective assistance of counsel. See Parrish, 273
A.3d at 1004 n.11; Sandusky,
203 A.3d at 1043-44
.
- 40 -
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Date: 11/5/2024
- 41 -Case Information
- Court
- Pa. Super. Ct.
- Decision Date
- November 5, 2024
- Status
- Precedential