J-E02001-18

                                   2018 PA Super 340


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    FREDERICK ANDREW POSTIE                    :
                                               :
                       Appellant               :       No. 93 MDA 2017

                 Appeal from the Order Entered January 4, 2017
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0001119-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J.,
        LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and
        McLAUGHLIN, J.

OPINION BY GANTMAN, P.J.:                           FILED DECEMBER 12, 2018

       Appellant, Frederick Andrew Postie, appeals pro se from the order

entered in the Schuylkill County Court of Common Pleas, which denied his first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

       The relevant facts and procedural history of this case are as follows. On

October 29, 2013, a jury convicted Appellant of multiple counts of conspiracy,

burglary, and other related offenses, in connection with four properties in Rush

Township.      The trial evidence showed how Appellant and his cohorts,

Stephanie Keck and Kerry Frank, chose four properties, which appeared to be

uninhabited and in the process of renovations or otherwise under construction,


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142 Pa.C.S.A. §§ 9541-9546. Appellant’s pro se status on appeal is addressed
and resolved later in this decision. See FN 4.
J-E02001-18


to strip them of tools, copper pipes, wiring, and other items to sell for money

or drugs.

      Specifically, the Commonwealth presented testimony from, inter alia,

Ms. Keck and Mr. Frank, who both received negotiated plea deals in exchange

for their testimony. They testified that Appellant had the idea to burglarize

the homes because he knew no one was living in them. Ms. Keck and Mr.

Frank explained how Appellant deactivated the brake lights on Ms. Keck’s

vehicle before the burglaries so no one would see them approaching the

houses. Ms. Keck was the “look out” and Mr. Frank was the “muscleman.”

Ms. Keck said they wore gloves to avoid leaving fingerprints, and Appellant

told her to keep the butts of any cigarettes she smoked during the burglaries

so there would be no DNA left on the properties.         After the burglaries,

Appellant and Ms. Keck went to a scrap yard to sell the copper pipes, wiring,

and other materials they had harvested. Appellant retained fifty percent of all

money received; Ms. Keck and Mr. Frank split the remainder. Appellant, Ms.

Keck, and Mr. Frank also stole tools from one property, which they sold for

drugs. (See N.T. Trial, 10/28/13, at 139-241).

      The two police officers, who interviewed Appellant about the crimes,

testified that Appellant admitted his involvement in the burglaries. Sergeant

Frederick described Appellant as “almost boastful” about his role in the

offenses. He told the officers that Ms. Keck and Mr. Frank chose the properties

to burglarize because they knew which ones were vacant from their respective


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jobs as a newspaper deliverywoman and trash collector. Appellant also said

they wore gloves to avoid detection. During Sergeant Frederick’s testimony,

the Commonwealth introduced a written statement Appellant had given to

police.   Sergeant Frederick read aloud the relevant portions of Appellant’s

handwritten statement as follows:

          I’m not certain of prior activity Kerry Frank or Stephanie
          Keck were involved [with]. Sometime within the last year,
          Frank and Keck approached me because Frank saw a few
          houses that were vacant and had the idea of entering them
          and removing/selling copper and/or wires. Frank knew the
          homes were vacant because he would remove trash from
          the surrounding areas and took notice to the ones that were
          not occupied. Keck delivered newspapers in a wide area
          around the…rural county areas and often knew where there
          were homes for sale [or] vacation[.] These houses were in
          Rush Township. I was asked to help them with these jobs
          in exchange for a cut of the profits. Houses were typically
          checked by me prior to entering to make sure no one was
          currently occupying the property. Typically after the metals
          were harvested, either Frank or Keck would deliver [it] to
          the scrap facility. I did attend the process on more than a
          few occasions in Pottsville and a facility near Allentown.
          [O]n at least two occasions in Rush Township[, I was]
          summoned by Keck to a house to help harvest. One was on
          Main Street and the other was on 309. [A p]roperty on
          Fairview Street produced copper, …rods and wire.

(Id. at 260-61) (emphasis added for later discussion). Both police officers

conceded on cross-examination that Appellant’s written statement gave less

detail than the officers’ testimony about what Appellant had actually said

during the interview. (See id. at 241-71).

      Appellant testified in his own defense and denied any involvement in the

burglaries.   Appellant maintained Ms. Keck had approached him about the


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burglaries, but Appellant refused to participate. Appellant claimed Ms. Keck

summoned him to the properties on two occasions, under false pretenses. On

the one occasion when Appellant went to the location Ms. Keck described and

discovered Ms. Keck and Mr. Frank in the midst of a burglary, Appellant said

he yelled at Ms. Keck for burglarizing a home situated so close to his own

home. Appellant admitted he had helped Ms. Keck unload some of the stolen

property at a scrap yard following one of the burglaries because she was

pregnant and could not lift the materials. Appellant insisted he did not admit

his involvement in the burglaries to police at any time and denied implicating

himself in his written statement. Importantly, Appellant disputed the portion

of Sergeant Frederick’s recitation of Appellant’s written statement stating:

“Houses were typically checked by me prior to entering to make sure no one

was currently occupying the property.” Appellant claimed the word “me,” as

Sergeant Frederick read it, actually says “one.” Appellant submitted his trial

testimony was consistent with his written statement concerning his lack of

participation in the burglaries. (N.T. Trial, 10/29/13, at 287-330).

      Following jury instructions, counsel for both parties brought to the

court’s attention the dispute regarding Appellant’s handwritten statement,

specifically over whether the statement said “me” or “one.” Counsel agreed

the jury should view the statement to resolve the dispute. Appellant’s written

statement in its entirety included some references to events unrelated to the

crimes at issue. The parties agreed to redact the statement so the jury could


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view only the portion of the statement Sergeant Frederick had read during his

examination, which was relevant to the charges at issue. The court ruled the

redacted statement could go out with the jury during deliberations. (Id. at

367-68). During defense counsel’s closing statement, counsel told the jury it

would have an opportunity to review the disputed word in Appellant’s written

statement to confirm Appellant did not admit any role in the burglaries. (Id.

at 378-79).

      The jury convicted Appellant of two counts of conspiracy and four counts

each of burglary, criminal trespass, receiving stolen property, criminal

mischief, and theft. The court sentenced Appellant on December 6, 2013, to

an aggregate term of 40-132 months’ imprisonment plus two years’ probation.

This Court affirmed the judgment of sentence on January 26, 2015.         See

Commonwealth v. Postie, 118 A.3d 455 (Pa.Super. 2015). On March 26,

2015, Appellant filed a petition for leave to seek allowance of appeal with the

Supreme Court nunc pro tunc, which the Supreme Court denied on April 24,

2015. Therefore, Appellant’s judgment of sentence became final on February

25, 2015, upon expiration of the 30-days permitted to file a petition for

allowance of appeal.    See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000) (holding appellant’s judgment of sentence became final

upon expiration of 30-day period to file petition for allowance of appeal to

Supreme Court from Superior Court’s decision affirming judgment of

sentence; fact that appellant filed untimely petition for allowance of appeal


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nunc pro tunc with Supreme Court after expiration of 30-day period, which

Supreme Court denied, does not alter date on which Appellant’s judgment of

sentence became final for purposes of PCRA).

      On February 24, 2016, Appellant timely filed his first PCRA petition pro

se. Appellant alleged, inter alia: (1) the trial court erred by failing to hold a

hearing to pursue whether Appellant wanted to proceed pro se at trial, where

Appellant initially indicated he wanted to proceed pro se but later changed his

mind; and trial counsel was ineffective for failing to request a hearing on this

issue; (2) trial counsel was ineffective for failing to seek an instruction that

the jury could not consider testimony from one accomplice as “corroborating

evidence” of testimony from another accomplice; and (3) trial counsel was

ineffective for agreeing to send Appellant’s written statement out with the jury

during deliberations. Appellant requested appointment of counsel to litigate

his PCRA claims. On March 1, 2016, the court granted Appellant in forma

pauperis (“IFP”) status and appointed PCRA counsel.

      The Commonwealth filed a response to Appellant’s pro se PCRA petition

on March 30, 2016.      Significantly, PCRA counsel did not file an amended

petition   on   Appellant’s   behalf   or    seek   to   withdraw   pursuant   to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On

April 1, 2016, the court issued notice of its intent to dismiss Appellant’s

petition without a hearing per Pa.R.Crim.P. 907.


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       On August 8, 2016, Appellant filed a pro se “Motion for Expedited

Disposition.”    Appellant explained he had sent numerous letters to PCRA

counsel, but PCRA counsel did not reply. Appellant indicated PCRA counsel

did not seek to withdraw under Turner/Finley. Appellant expressed his belief

that PCRA counsel had abandoned Appellant.            Due to PCRA counsel’s

abandonment, Appellant said he was forced to assume control over his case

to preserve his rights, and chose to ask the court to rule on his petition in an

expeditious manner.2 The PCRA court took no action regarding Appellant’s

pro se motion raising claims of PCRA counsel’s abandonment. Instead, the

court simply denied PCRA relief on January 5, 2017. Appellant timely filed a

pro se notice of appeal on January 12, 2017. The next day, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a pro se Rule 1925(b)

statement on January 18, 2017.

       Identifying Appellant’s pro se status on appeal, on January 30, 2017,

this Court remanded for a Grazier3 hearing to determine if Appellant wanted


____________________________________________


2 The court forwarded Appellant’s pro se motion to PCRA counsel, pursuant to
Pa.R.Crim.P. 576. See Pa.R.Crim.P. 576(A)(4) (stating in any case in which
defendant is represented by attorney, if defendant submits written document
that has not been signed by defendant’s attorney, clerk of courts shall accept
it for filing and forward copy of time-stamped document to defendant’s
attorney and attorney for Commonwealth within 10 days of receipt).

3 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (holding court
must determine on record that indigent defendant wants to proceed pro se,
to ensure waiver of counsel is knowing, intelligent and voluntary).

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to proceed pro se on appeal or with PCRA counsel, who was still counsel of

record. After conducting a Grazier hearing, the PCRA court relieved PCRA

counsel and permitted Appellant to proceed pro se on appeal.

       The original three-judge panel disagreed over disposition of this case.

Given the disparate dispositions, this Court granted en banc certification on

November 29, 2017, and directed the PCRA court to appoint new counsel. On

December 1, 2017, the PCRA court appointed new counsel. Appointed counsel

filed a petition to withdraw on December 18, 2017, stating Appellant wanted

to proceed pro se. Appellant filed a pro se motion that day confirming his

intent to proceed pro se. On December 22, 2017, this Court issued an order

directing Appellant to notify this Court if he wanted to proceed pro se and

informing Appellant the case would be submitted on the briefs if he planned

to proceed without counsel. Appellant filed his express intent to continue pro

se on January 16, 2018. Counsel filed a certification with this Court on January

19, 2018, reiterating Appellant’s plan to proceed pro se. On January 23, 2018,

this Court granted counsel’s petition to withdraw and permitted Appellant to

proceed pro se in this en banc appeal.4

____________________________________________


4 The record makes clear that original PCRA counsel (appointed on March 1,
2016) abandoned Appellant, where counsel did nothing on Appellant’s behalf
or to withdraw pursuant to Turner/Finley. See Pa.R.Crim.P. 904(C), (F)(2)
(explaining court shall appoint counsel to represent indigent defendant on first
PCRA petition; appointment shall continue through any appeal from
disposition of PCRA petition); Commonwealth v. Robinson, 970 A.2d 455
(Pa.Super. 2009) (en banc) (discussing appellant’s rule-based right to counsel



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       Appellant raises the following issues in this appeal:

          IS THE TRIAL COURT REQUIRED TO HOLD A HEARING
          FOLLOWING A DEFENDANT’S UNEQUIVOCAL ASSERTION
          OF HIS RIGHT TO CONDUCT HIS OWN DEFENSE; IS
          COUNSEL OBLIGATED TO ADVOCATE TO THE COURT FOR
          THAT DEFENDANT TO EXERCISE THAT RIGHT, AND DID THE
          PCRA COURT ERR BY DENYING A HEARING TO DETERMINE
          THIS QUESTION?

          DOES A PCRA COURT ERR IN DECLINING TO HOLD A
          HEARING WHEN IT IS CLEAR ON THE RECORD THAT A
          PROPER LIMITING INSTRUCTION WAS NOT GIVEN AT A
          DEFENDANT’S TRIAL AND IS COUNSEL INEFFECTIVE FOR
          NOT SEEKING THIS INSTRUCTION WHERE THE FACTS OF
          THE CASE CALL FOR IT, OR FOR NOT OBJECTING TO ITS
          EXCLUSION BY THE COURT?

          IS A PCRA COURT REQUIRED TO FIND COUNSEL
          INEFFECTIVE FOR AN EXPRESS VIOLATION OF A
          PENNSYLVANIA     RULE   OF   COURT,   SPECIFICALLY
          PA.R.CRIM.P. 646, IN LINE WITH COMMONWEALTH V.
          KARAFFA, 551 PA. 173, 709 A.2D 887 (1998) AND
          COMMONWEALTH V. YOUNG, 767 A.2D 1072 (PA.SUPER.
          2001) AND/OR IS COMMONWEALTH V. PENROSE, 669
          A.2D 996 (PA.SUPER. 1995)[, APPEAL DENIED, 545 PA.
____________________________________________


on first PCRA petition and stressing importance of counsel in litigating first
PCRA petition). Normally, we would vacate the order denying PCRA relief and
remand for the appointment of new independent PCRA counsel to file an
amended petition on Appellant’s behalf or a proper motion to withdraw and
Turner/Finley no-merit letter. See Commonwealth v. Kenney, 557 Pa.
195, 732 A.2d 1161 (1999) (explaining where indigent petitioner’s right to
appointment of counsel in prosecuting first PCRA petition has been effectively
denied by action of court or counsel, petitioner is entitled to remand for
appointment of counsel to prosecute PCRA petition to give petitioner benefit
of competent counsel at each stage of post-conviction review);
Commonwealth v. Williams, 167 A.3d 1 (Pa.Super. 2017) (vacating order
denying PCRA relief and remanding for amended PCRA petition on appellant’s
behalf, where prior PCRA counsel had abandoned appellant). Nevertheless,
Appellant has repeatedly confirmed, following this Court’s en banc
certification, that he wants to litigate his PCRA petition pro se. Consequently,
we deem Appellant’s pro se status resolved and a remand is not required.

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         669, 681 A.2D 1342 (1996)] STILL GOOD LAW; AND CAN
         THIS COURT HARMONIZE, DISTINGUISH, OR EXPRESSLY
         OVERRULE PENROSE AS NOT BEING ALIGNED WITH
         CURRENT SUPREME COURT PRECEDENT DEALING WITH
         CONFESSIONS GOING OUT TO THE JURY DURING
         DELIBERATIONS, AND WAS THE PCRA COURT REQUIRED
         TO HOLD A HEARING TO DETERMINE WHICH CASE
         CONTROLLED THE OUTCOME OF THIS CASE?

(Appellant’s Brief at 4).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). This Court grants great deference to the findings of the PCRA

court if the record contains any support for those findings. Commonwealth

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997).

      The   law   presumes    counsel   has   rendered   effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa.Super. 2004), appeal

denied, 582 Pa. 695, 871 A.2d 189 (2005). In general, to prevail on a claim

of ineffective assistance of counsel, a petitioner must show, by a

preponderance of the evidence, ineffective assistance of counsel which, in the

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circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal

denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate:

(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable

strategic basis for his 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.5 Id. at 880. “The petitioner bears

the burden of proving all three prongs of the test.” Id.

       “A claim has arguable merit where the factual averments, if accurate,

could establish cause for relief.” Commonwealth v. Stewart, 84 A.3d 701,

707 (Pa.Super. 2013) (en banc), appeal denied, 625 Pa. 664, 93 A.3d 463

(2014). “[T]he ultimate question of whether facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Saranchak, 581 Pa. 490,

511 n.14, 866 A.2d 292, 304 n.14 (2005).

       Regarding the second prong of the ineffectiveness test, our Supreme

Court has explained:

          [W]e do not question whether there were other more logical
          courses of action which counsel could have pursued; rather,
          we must examine whether counsel’s decisions had any
          reasonable basis. We will conclude that counsel’s chosen
          strategy lacked a reasonable basis only if [a]ppellant proves
____________________________________________


5  This traditional three-prong analysis is known as the Strickland
ineffectiveness test. See Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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          that an alternative not chosen offered a potential for success
          substantially greater than the course actually pursued.

Commonwealth v. Chmiel, 612 Pa. 333, 361-62, 30 A.3d 1111, 1127

(2011) (internal citations and quotation marks omitted).           Generally, an

evidentiary hearing on counsel’s strategy is preferred before the PCRA court

decides if counsel lacked a reasonable basis for his actions, except in those

cases where the reasons for counsel’s conduct are clear and apparent from

the record. Commonwealth v. Hanible, 612 Pa. 183, 30 A.3d 426 (2011),

cert. denied, 568 U.S. 1091, 133 S.Ct. 835, 184 L.Ed.2d 662 (2013).

       With respect to the prejudice prong, “a reasonable probability is a

probability that is sufficient to undermine confidence in the outcome of the

proceeding.” Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291

(2010). “[T]he prejudice inquiry requires consideration of the totality of the

evidence….” Commonwealth v. Spotz, 582 Pa. 207, 228 n.15, 870 A.2d

822, 834 n.15 (2005), cert. denied, 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d

474 (2005). Only in the absolute rarest of circumstances may prejudice be

presumed.6 Id. at 227, 870 A.2d at 834. Further, “boilerplate allegations and

bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy



____________________________________________


6 In cases involving these rare circumstances, which we will discuss more fully
in our analysis of Appellant’s third issue, we evaluate a petitioner’s claim under
a per se ineffectiveness standard known as the Cronic ineffectiveness test,
which eliminates a petitioner’s requirement to prove the second and third
prongs of the traditional ineffectiveness test. See United States v. Cronic,
466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

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a petitioner’s burden to prove that counsel was ineffective.” Chmiel, supra

at 362, 30 A.3d at 1128.

      In his first issue, Appellant argues that prior to trial, he filed a petition

to proceed pro se, citing his distrust and fractured relationship with counsel.

Appellant asserts the trial court failed to conduct a hearing to uncover

Appellant’s reasons for wanting to proceed pro se and whether his intended

waiver of counsel was valid. Appellant insists he did not “previously litigate”

this claim for purposes of the PCRA because the Pennsylvania Supreme Court

refused to rule on the merits of this issue. Even if the claim of trial court error

was previously litigated, Appellant contends trial counsel was ineffective for

failing to advocate for Appellant’s right to proceed pro se and secure a hearing

on Appellant’s request. Appellant maintains trial counsel had no reasonable

basis for failing to withdraw his representation and advance Appellant’s right

to proceed pro se. Appellant claims he suffered prejudice because he was

denied the opportunity to present a defense of his own choosing. Appellant

submits he would not have testified in his own defense at trial if he had

represented himself. Appellant concludes the trial court erred by failing to

hold a hearing on Appellant’s request to proceed pro se at trial, counsel was

ineffective for failing to advocate for Appellant’s right to proceed pro se, and

this Court must reverse the order denying PCRA relief and grant Appellant a

new trial. We disagree.

      Preliminarily, to be eligible for relief under the PCRA, a petitioner must


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plead and prove by a preponderance of the evidence: “[t]hat the allegation of

error has not been previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3).

The PCRA defines “previous litigation” as follows:

         § 9544. Previous litigation and waiver

            (a) Previous litigation.—For purposes of              this
         subchapter, an issue has been previously litigated if:

                                  *     *      *

            (2) the highest appellate court in which the petitioner
         could have had review as a matter of right has ruled on
         the merits of the issue; or

            (3) it has been raised and decided in a proceeding
         collaterally attacking the conviction or sentence.

42 Pa.C.S.A. § 9544(a)(2-3) (emphasis added). “[A] reviewing court must

consider and substantively analyze an ineffectiveness claim as a distinct legal

ground for PCRA review because[,] while an ineffectiveness claim may fail for

the same reasons that the underlying claim faltered on direct review, the Sixth

Amendment basis for ineffectiveness claims technically creates a separate

issue for review under the PCRA.” Commonwealth v. Tedford, 598 Pa. 639,

662, 960 A.2d 1, 14 (2008) (internal citation and quotation marks omitted).

      Additionally, “to invoke the right of self-representation, the request to

proceed pro se must be made timely and not for purposes of delay and must

be clear and unequivocal.” Commonwealth v. Davido, 582 Pa. 52, 64, 868

A.2d 431, 438 (2005), cert. denied, 546 U.S. 1020, 126 S.Ct. 660, 163

L.Ed.2d 534 (2005). “[T]he inquiry surrounding whether a request to proceed


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pro se is unequivocal is fact intensive and should be based on the totality of

the circumstances surrounding the request.” Id. at 66, 868 A.2d at 439. “[A]

court only needs to conduct an on the record colloquy when there has been a

‘timely and unequivocal’ request to proceed pro se.” Id. at 65, 868 A.2d at

438 (holding appellant did not invoke Sixth Amendment right of self-

representation where he wrote pre-trial letter to court seeking new counsel or

permission to retain private counsel due to difficulties with current counsel;

appellant’s request to proceed pro se was posed only as alternative if court

did not appoint him new counsel; appellant made no clear demand for self-

representation; when court subsequently asked appellant if he wanted to

proceed pro se, appellant said he did not want to represent himself; based on

totality of circumstances, appellant’s request to represent himself was

equivocal, and court did not err in failing to conduct colloquy).

      Instantly, Appellant expressly raised, as his second issue on direct

appeal, whether the trial court erred and denied Appellant due process by

failing to conduct a hearing to address Appellant’s petition to proceed pro se

at trial.   This Court considered the issue on the merits and denied relief,

explaining Appellant’s claim was disingenuous where Appellant appeared for

a hearing on his petition to proceed pro se, and informed the court he had

changed his mind and wanted counsel to continue representing Appellant.

Because the Superior Court is the highest court in which Appellant was entitled

to review as a matter of right, and he obtained merits review on his current


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claim of trial court error, Appellant’s underlying issue has been “previously

litigated” for purposes of the PCRA. See 42 Pa.C.S.A. § 9544(a)(2). See

also 42 Pa.C.S.A. § 724(a) (explaining final orders of Superior Court may be

reviewed by Supreme Court upon allowance of appeal by any two justices of

Court upon petition of any party to matter; if petition is granted, Supreme

Court shall have jurisdiction); 42 Pa.C.S.A. § 5105(b) (stating there shall be

no right of appeal from Superior Court to Supreme Court under this section or

otherwise).

      Regarding Appellant’s related but distinct claim of trial counsel’s

ineffectiveness, which is properly before us, see Tedford, supra, the record

shows Appellant filed a pre-trial petition for leave to proceed pro se, dated

July 23, 2013 and filed August 7, 2013. The court forwarded the motion to

counsel per Pa.R.Crim.P. 576. On August 15, 2013, counsel filed a motion to

withdraw based on Appellant’s request to proceed pro se at trial. The court

held a pre-trial conference the next day. At the conference, counsel informed

the court Appellant had filed a petition to proceed pro se but had since

changed his mind and wanted counsel to continue representing him. The court

specifically asked Appellant if he wanted to represent himself; Appellant

responded: “Currently, no.” (See N.T. Pre-Trial Conference, 8/16/13, at 3).

Thus, the record belies Appellant’s claim that counsel failed to advocate for

Appellant’s right to proceed pro se. To the contrary, counsel filed a motion to

withdraw based on Appellant’s initial request but Appellant subsequently


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changed his mind and decided to continue with counsel’s representation.

Under these circumstances, where Appellant’s request to proceed pro se was

not “clear and unequivocal,” the court had no obligation to conduct a colloquy.

See Davido, supra.          Consequently, Appellant’s ineffectiveness claim

regarding his right to self-representation lacks arguable merit.             See

Saranchak, supra; Stewart, supra.

      In his second issue, Appellant argues his cohorts, Stephanie Keck and

Kerry Frank, were accomplices who testified against Appellant at trial.

Appellant acknowledges the court issued the proper “corrupt source” jury

instruction regarding their testimony.     Nevertheless, Appellant asserts the

court failed to give a second limiting jury instruction that accomplice testimony

cannot be used to corroborate accomplice testimony. Appellant claims trial

counsel was ineffective for failing to request this jury instruction and/or object

to its exclusion.   Appellant insists the court’s jury instruction related to

accomplice testimony departed from the suggested standard instruction,

which directs the jurors to consider each accomplice’s testimony separately

and not to consider the testimony of one accomplice as supporting the

testimony of the other accomplice.       Appellant maintains counsel had no

reasonable basis for failing to request the suggested standard instruction on

accomplice testimony. Appellant suggests he suffered prejudice because in

the absence of the proper jury instruction, the jurors might have improperly

considered testimony from Ms. Keck as corroborating the testimony of Mr.


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Frank or vice versa.    Appellant concludes trial counsel was ineffective for

failing to seek the proper accomplice jury instruction, and this Court must

reverse the order denying PCRA relief and grant Appellant a new trial. We

disagree.

      When reviewing a challenge to a jury instruction:

         [W]e 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.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 2008), appeal

denied, 606 Pa. 644, 992 A.2d 885 (2010) (internal citation omitted).

         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. Consequently,
         the trial court has wide discretion in fashioning jury
         instructions.

Id. Additionally, “[t]he Suggested Standard Jury Instructions themselves are

not binding and do not alter the discretion afforded trial courts in crafting jury

instructions; rather, as their title suggests, the instructions are guides only.”

Commonwealth v. Eichinger, 631 Pa. 138, 178, 108 A.3d 821, 845 (2014).

      “[T]estimony of one accomplice cannot be used to corroborate the

testimony of another accomplice.” Commonwealth v. Bennett, 283 A.2d

724, 725 (Pa.Super. 1971). Thus, “it is reversible error for a trial judge to

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allow a jury to infer from his instructions, by negative inference or otherwise,

that the testimony of one accomplice may be used to corroborate that of

another accomplice.”    Commonwealth v. Almeida, 452 A.2d 512, 516

(Pa.Super. 1982).

      Instantly, the trial court issued the following jury instruction regarding

accomplice testimony:

         Now, there are also special rules having to do with
         accomplice testimony and I’m talking specifically about the
         testimony of Stephanie Keck and Kerry Frank. A person is
         an accomplice of another person in the commission of a
         crime if he or she has the intent of promoting or facilitating
         the commission of the crime and (1) either solicits the other
         person to commit it or (2) aids or agrees or attempts to aid
         such other person in planning or committing the crime. Put
         simply, an accomplice is a person who knowingly and
         voluntarily cooperates with or aids another person in
         committing an offense and those two witnesses certainly
         would fall within that definition and so when a
         Commonwealth witness is an accomplice, his or her
         testimony has to be judged by special precautionary rules.
         Experience shows that an accomplice, when caught, may
         often try to place the blame falsely in the hopes of obtaining
         favorable treatment for…some corrupt or wicked motive. On
         the other hand, an accomplice may be a perfectly truthful
         witness. The special rules that I will give you are meant to
         help you distinguish between truthful and false accomplice
         testimony.

         Now, as I said, in view of the evidence that was presented,
         Stephanie Keck and Kerry Frank’s criminal involvement in
         these matters do classify them as accomplices in the crimes
         charged and so these special rules apply to their testimony.
         These are, first, you should consider the testimony of
         accomplices with disfavor because it comes from a corrupt
         and polluted source. Second, you should examine the
         testimony of accomplices closely and accept it only with care
         and caution. And third, you should consider whether
         the testimony of an accomplice is supported in whole

                                     - 19 -
J-E02001-18


         or in part by other evidence. Accomplice testimony is
         more dependable if supported by independent
         evidence. However, even if there was no independent
         supporting evidence, you may still find the defendant guilty
         solely on the basis of the accomplices’ testimony if, after
         using the special rules I just told you about, you are satisfied
         beyond a reasonable doubt that the accomplices testified
         truthfully and that the defendant is guilty.

(N.T., 10/29/13, at 338-40) (emphasis added).          Defense counsel did not

object to the court’s instruction. (Id. at 367).

      Viewing the jury instruction as a whole, the court’s recitation of the law

was accurate. See Baker, supra. Nowhere in the court’s instruction did the

court state or suggest by negative inference or otherwise, that the testimony

of one accomplice could be used to corroborate testimony of another

accomplice. See Almeida, supra. Rather, the court instructed the jury to

consider whether testimony from Ms. Keck or Mr. Frank was supported by

“other,” “independent evidence.” See id. (holding trial court did not issue

erroneous jury instruction where court directed jury to view accomplices’

testimony with great scrutiny and to determine whether their testimony was

corroborated by “other evidence” in record; court’s instruction did not

encourage jury to consider testimony of one accomplice as corroborating that

of another). The trial court was not required to recite, verbatim, the language

used in the suggested standard jury instructions.       See Eichinger, supra.

Consequently, Appellant’s ineffectiveness claim lacks arguable merit. See id.

(explaining counsel is not ineffective for failing to object to jury instruction

where instruction is justifiable or not otherwise improper).           See also

                                     - 20 -
J-E02001-18


Saranchak, supra; Stewart, supra.

        In his third issue, Appellant argues trial counsel improperly permitted

Appellant’s “confession” to go out with the jury during deliberations. Appellant

asserts counsel’s actions violated Pa.R.Crim.P. 646, which expressly forbids

the jury to have a copy of a defendant’s confession during deliberations.

Appellant contends trial counsel was per se ineffective on this ground.

Appellant acknowledges this Court’s disposition in Penrose, supra, which

considered whether trial counsel had a reasonable basis in permitting a

defendant’s confession to go out with the jury. Nevertheless, Appellant insists

this Court’s subsequent decision in Young, supra established a per se

ineffectiveness test under similar circumstances and overruled Penrose sub

silentio. Appellant suggests any violation of Rule 646 constitutes reversible

error and automatic grounds for a new trial. Appellant submits that permitting

a jury to hold a defendant’s confession during deliberations is inherently

prejudicial because the jurors will most likely place undue emphasis on the

confession, instead of relying on their collective recollection of the trial

testimony and evidence.        Appellant concludes trial counsel was per se

ineffective for allowing the “confession” to go out with the jury during

deliberations, and this Court must reverse the order denying PCRA relief and

grant Appellant a new trial. We cannot agree, under the circumstances of this

case.

        Pennsylvania Rule of Criminal Procedure 646 provides, in pertinent part:


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J-E02001-18


          Rule 646.       Material Permitted in Possession of the
          Jury

                                       *       *    *

             (C) During deliberations,              the   jury   shall   not   be
          permitted to have:

              (1)    a transcript of any trial testimony;

             (2) a copy of any written or otherwise recorded
          confession by the defendant;

              (3)    a copy of the information or indictment; and

             (4) except as provided in paragraph (B), written jury
          instructions.

Pa.R.Crim.P. 646(C).

       In Penrose, supra, this Court considered on direct appeal a claim that

trial counsel was ineffective for allowing the defendant’s written confession to

go out with the jury during deliberations.7 The Court decided the claim had

arguable merit, where Pa.R.Crim.P. 1114 (now Rule 646) prohibited the jury

from having a copy of the defendant’s written confession during deliberations.

Trial counsel testified that sending out the confession with the jury was a

strategic trial move because the confession corroborated the defense theories

of “heat of passion” or self-defense. Therefore, the Penrose Court held the

appellant had failed to meet the second prong of the ineffectiveness of counsel



____________________________________________


7 Due to its irregular procedural history, Penrose involved some direct appeal
and some PCRA claims, but the Penrose Court made clear it was considering
the confession issue as a direct appeal issue. See Penrose, supra at 999.

                                           - 22 -
J-E02001-18


test, where trial counsel had a reasonable basis for his action. See Penrose,

supra at 1001.

       In the later case of Young, supra, this Court considered on direct

appeal whether the trial court had committed reversible error in allowing the

defendant’s confession to go out with the jury during deliberations and

whether trial counsel was ineffective for failing to object to the Rule 1114 (now

Rule 646) violation. Notably, the trial court declared it had erred in sending

the confession out with the jury and asked the Superior Court to remand for

a new trial. The Commonwealth opposed a remand and argued for a harmless

error analysis to decide whether a new trial was warranted.

       The Young Court attempted to distinguish Penrose as having been

decided under the PCRA ineffectiveness test and “[t]hus, whether to award a

new trial for the underlying violation of Rule 1114 [now Rule 646] was not at

issue before [the Penrose] panel.” Young, supra at 1075. Instead, the

Young Court analogized to the Supreme Court’s decision in Karaffa, supra,

which held the jury’s possession of written jury instructions during

deliberations was per se reversible error, and a harmless error analysis was

inappropriate, given the inherent prejudice involved. The Karaffa Court also

concluded trial counsel was ineffective for failing to object.8 As in Karaffa,


____________________________________________


8 Karaffa, Young, and Penrose were all decided on direct appeal before the
Supreme Court issued Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726
(2002) (holding as general rule claims of ineffective assistance of counsel
must await collateral review).

                                          - 23 -
J-E02001-18


the Young Court concluded written confessions were like jury instructions:

“Both types of items should be treated in like manner, as inherently prejudicial

if the rule has been violated, requiring a vacation of the judgment of sentence,

regardless of whether…counsel performed otherwise effectively.”         Young,

supra at 1076.

      Instantly, the trial court permitted Appellant’s handwritten statement

(with agreed-upon redactions) to go out with the jury for deliberations.

Appellant’s redacted statement provides:

         I’m not certain of prior activity Kerry Frank or Stephanie
         Keck were involved with. Sometime within the last year,
         Frank and Keck approached me because Frank saw a few
         houses that were vacant and had the idea of entering them
         and removing/selling copper and/or wires. Frank knew the
         homes were vacant because he would remove trash from
         the surrounding areas and took notice to the ones that were
         not occupied. Keck delivered newspapers in a wide area
         around [the] rural county areas an[d] often knew where
         there were homes for sale [or] vacation[.] These houses
         were in Rush Twp. I was asked to help them with these jobs
         in exchange for a cut of the profits. Houses were typically
         checked by […] prior to entering to make sure no one was
         currently occupying the property. Typically after the metals
         were harvested, either Frank or Keck would deliver it to the
         scrap facility. I did attend the process on more than a few
         occasions in Pottsville and a facility near Allentown[.]

         [O]n at least two occasions in Rush Twp, I was summoned
         by Keck to a house to help harvest. One was on Main Street
         and the other was on 309.

         Wheels was harvested for copper, wire, a pressure washer,
         compressor, and other misc. tools.       [A] property on
         [F]airview…produced copper, rods, [and] wire[.]

(Commonwealth’s Trial Exhibit #16 (redacted), dated February 28, 2012, at


                                     - 24 -
J-E02001-18


1-2) (bolded and bracketed ellipsis added to represent disputed word “me” or

“one”).

      Initially, whether Appellant’s written statement even constitutes a

“confession” is highly debatable for several reasons: (1) part of Appellant’s

defense at trial was that his statement exonerated him and was not a

“confession”; (2) Appellant testified in his own defense that the disputed word

said “one,” not “me”; the statement did not implicate him in the crimes; and

it was wholly consistent with his trial testimony that he was not responsible

for the offenses; and (3) the statement sent out with the jury was redacted,

so the jury saw only the limited portion at issue. In light of Appellant’s position

at trial, Appellant has arguably waived his current contention that his written

statement constituted a “confession.” See Commonwealth v. Paddy, 569

Pa. 47, 82, 800 A.2d 294, 316 (2002) (explaining defendant who makes

knowing, voluntary, and intelligent decision concerning trial strategy cannot

later complain trial counsel was ineffective on basis of that decision; to hold

otherwise would allow defendant to build “ready-made” ineffectiveness claim

into his case to be raised in event of adverse verdict).

      Even if Appellant’s statement could qualify as a “confession,” we decline

to adopt a per se ineffectiveness standard for a violation of Rule 646(C), and

Pennsylvania law does not support that precedent. First and foremost, Young

did not and could not overrule Penrose sub silentio. See Commonwealth

v. Pepe, 897 A.2d 463, 465 (Pa.Super. 2006), appeal denied, 596 Pa. 743,


                                      - 25 -
J-E02001-18


946 A.2d 686 (2008), cert. denied, 555 U.S. 881, 129 S.Ct. 197, 172 L.Ed.2d

141 (2008) (stating: “[I]t is beyond the power of a Superior Court panel to

overrule a prior decision of the Superior Court, …except in circumstances

where intervening authority by our Supreme Court calls into question a

previous decision of this Court”). In addition, Young’s mistaken attempt to

distinguish Penrose on procedural grounds was unfounded, because the

ineffective assistance of counsel test is the same regardless of the procedural

posture of the case. Further, Karaffa was limited to jury instructions and did

not constitute a sufficient “intervening” authority to call Penrose into

question.9

       Moreover, to the extent Young espouses a per se ineffectiveness

standard for a violation of Rule 646(C), we expressly overrule it, as our courts

have presumed prejudice in only the rarest of circumstances.        See Spotz,

supra. See also Commonwealth v. Rosado, 637 Pa. 424, 150 A.3d 425

(2016) (explaining very limited circumstances where court will presume

prejudice under Pennsylvania law; per se ineffectiveness of counsel occurs

with actual or constructive denial of counsel, state interference with assistance



____________________________________________


9 The current rules of criminal procedure now permit the trial court, in its
discretion, to send out portions of the jury instructions during deliberations.
See Pa.R.Crim.P. 646(B) (stating trial judge may permit members of jury to
have for use during deliberations written copies of portion of judge’s charge
on elements of offenses, lesser included offenses, and any defense upon which
jury has been instructed). Thus, the current rule has superseded Karaffa
with respect to jury instructions.

                                          - 26 -
J-E02001-18


of counsel, counsel’s failure to subject prosecution’s case to meaningful

adversarial testing, or counsel’s actual conflict of interest).        Under the

circumstances of the present case, counsel’s trial strategy to allow Appellant’s

written statement to go out with the jury during deliberations simply does not

fall into one of the limited per se categories subject to presumed prejudice.

See id. Consequently, Appellant must establish his right to relief under the

traditional three-prong test for ineffectiveness of counsel. See Strickland,

supra; Turetsky, supra.

      Here, the PCRA court evaluated Appellant’s ineffective assistance of

counsel claim as follows:

         Addressing [Appellant’s] third issue…it is noted that
         [Appellant] argues that his trial [c]ounsel was [ineffective]
         for failing to object to allowing his “written confession” to go
         out with the [j]ury. A review of the record demonstrates
         that this argument is meritless.          It was [Appellant’s]
         [c]ounsel who wanted the written statement to be
         considered by the [j]ury because he argued at length that it
         was [exculpatory]. Moreover, [Appellant’s] [c]ounsel and
         the Assistant District Attorney both conferred with the
         [c]ourt prior to closing arguments and agreed that portions
         of the statement had to be redacted (at [Appellant’s]
         insistence). [Appellant’s] [c]ounsel had argued to the [j]ury
         at some length that [Appellant’s] statement contradicted
         the testimony of his co-conspirators, Stephanie Keck and
         Kerry Frank. [Appellant] had testified to such on [r]edirect
         [e]xamination.

         As such, the course chosen by [Appellant’s] [c]ounsel had a
         reasonable basis designed to effectuate his client’s
         interests.

         Since the record itself reveals that [Appellant’s] written
         statement was an integral part of his defense, the reason
         why his attorney wanted it to go out with the [j]ury is

                                     - 27 -
J-E02001-18


          apparent. As such, his attorney had a very good reason to
          have the [j]ury review it during its deliberations. The fact
          that the [j]ury did not find [Appellant’s] testimony or his
          [allegedly exculpatory] statement credible does not impugn
          the effectiveness of his [t]rial [c]ounsel. No [h]earing is
          required on this issue as what occurred and the reasons
          therefore are apparent from the record.

(Opinion in Support of Rule 907 Notice, filed 4/1/16, at 2-3) (internal citations

omitted).10    The record supports the court’s analysis.     See Ford, supra;

Boyd, supra. Significantly, Appellant does not attack counsel’s strategy in

denying Appellant’s participation in the crimes and classifying Appellant’s

written statement as exculpatory at trial.         The record makes clear and

apparent that trial counsel had a reasonable basis for allowing the jury to view

Appellant’s written statement, consider the disputed word, and decide

whether it supported Appellant’s trial testimony and the defense theory of the

case.    See Chmiel, supra; Hanible, supra.          Therefore, Appellant’s third

ineffectiveness of counsel claim merits no relief. Accordingly, we affirm the

order denying Appellant’s PCRA petition.

        Order affirmed.

        President Judge Emeritus Bender, Judge Panella, Judge Shogan, Judge

Lazarus, Judge Stabile, Judge Dubow, Judge Nichols, and Judge McLaughlin

join this opinion.



____________________________________________


10 The PCRA court’s decision unequivocally intended to say “exculpatory.”
Therefore, we substituted the correct word in two places to reflect an accurate
statement of record.

                                          - 28 -
J-E02001-18


     Judge McLaughlin files a concurring opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2018




                                  - 29 -
