J-S82027-18
                              2019 PA Super 188


COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellee               :
                                         :
                    v.                   :
                                         :
KENNETH MILLER,                          :
                                         :
                  Appellant              :     No. 338 EDA 2017

                 Appeal from the PCRA Order January 12, 2017
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0902382-1998

BEFORE:      LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.:       FILED JUNE 11, 2019

     Kenneth Miller (Appellant) appeals from the January 12, 2017 order

granting in part and denying in part his first petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review,

we affirm.

     We provide the following background.

     Charles Love, Esq. (Love), represented [Appellant’s] uncle,
     Gregory Miller (Gregory) on various matters, and successfully
     obtained money for Gregory as the result of a variety of civil
     claims. … However, Love could not distribute the entire sum to
     Gregory because of outstanding support orders and child support
     arrearages.

     On the morning of February 25, 1998, [Appellant] and Marcus
     Lloyd (Lloyd) met Herbert Blakeney (Blakeney) at Blakeney’s
     house, at which time the three traveled to Gregory’s home.
     During the ensuing conversation, Gregory spoke to the others
     about robbing Love at his office at 1006 Spruce Street in
     Philadelphia, and mentioned that anyone present at the office
     might have to be shot. According to the original plan, as devised


*Retired Senior Judge assigned to the Superior Court.
J-S82027-18


     by Gregory and as testified to by Blakeney, [Appellant] was to
     be the shooter and Lloyd was to tie up the victims while
     Blakeney acted as a lookout. Gregory gave [Appellant] a
     handgun and told Blakeney to go to Love’s office, get a check for
     [$10,000] from [Love], and give the check to Lloyd; Gregory
     instructed Lloyd to take the check to the bank and cash it.
     Gregory did not accompany [Appellant], Blakeney, and Lloyd to
     Love’s office, but before they left for the office, Gregory told the
     three that the victims would have to be killed and to “leave no
     witnesses.”

     En route, [Appellant], Blakeney, and Lloyd took turns carrying
     the weapon, but Blakeney ended up with it when they reached
     Love’s office. Brian Barry (Barry), a paralegal, opened the office
     door, whereupon [Appellant], Blakeney, and Lloyd entered and
     Blakeney brandished the gun. Blakeney then told Love to write
     out a check for [$10,000] while Lloyd tied up Barry. Lloyd
     departed to cash the check at the bank. Remaining at Love’s
     office, [Appellant] and Blakeney passed the gun back-and-forth
     to each other.

     Lloyd was unable to cash the check because he had insufficient
     identification, so he returned to Love’s office and said to Love,
     “[y]ou know you is [sic] a dead mother f***er now.” [Appellant]
     then handed the gun to Blakeney and exclaimed that Blakeney
     “was a b**** ass n***er if [he didn’t] kill the mother f***ers.”
     Blakeney then confronted the victims in the back storage room
     of Love’s office and shot each of them in the head. Blakeney
     took [$1,500] from Love’s person, and then [Appellant],
     Blakeney, and Lloyd fled the scene. The three parted ways
     temporarily. They later met at Blakeney’s house, agreed to split
     the [$1,500] “proceeds” among the three of them, and further
     agreed to tell Gregory that they did not obtain any money
     because they could not cash the check.

     At approximately 12:00 p.m. on that day, February 25, 1998,
     one of Love’s clients flagged down a police officer at 10th and
     Spruce Streets and informed the officer that her attorney was in
     need of an ambulance. The officer entered the law office and saw
     the bodies of Love and Barry lying face down on the floor of the
     storage closet, with gunshot wounds to the back of their heads.
     Love’s desk ledger contained an entry made that day indicating
     that he had written a check for [$10,000]. The police officer


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J-S82027-18


      noticed two .38 caliber shell casings on the floor. Both bullets
      were later recovered from the victims by the medical examiner.

      [Eventually, Appellant, Lloyd, Blakeney, and Gregory were
      arrested in connection with this crime and charged with, inter
      alia, murder.]

      The trial court conducted a jury trial for [] three defendants,
      [Appellant], Lloyd, and Gregory, … from September 16, 1999,
      until September 29, 1999. Blakeney entered into a negotiated
      plea agreement, at which time he pl[eaded] guilty to two counts
      of murder in the first degree and received two concurrent life
      sentences, in exchange for his testimony regarding the roles of
      [Appellant], Lloyd, Gregory, and himself in the chain of events
      leading to the deaths of Love and Barry.

Commonwealth v. Miller, 819 A.2d 504, 507-08 (Pa. 2002) (footnote and

citations to notes of testimony omitted).

      At the conclusion of the trial, Appellant was convicted of two counts of

first-degree murder, and one count each of robbery and criminal conspiracy.

The trial court sentenced Appellant to death on each murder conviction after

the jury found the existence of two aggravating circumstances, which

outweighed the lone mitigating circumstance.         On direct appeal, our

Supreme Court affirmed. Miller, 819 A.2d 504. On October 6, 2003, the

United States Supreme Court denied Appellant’s petition for a writ of

certiorari. Miller v. Pennsylvania, 540 U.S. 827 (2003).

      On January 21, 2004, Appellant pro se timely filed the instant PCRA

petition.   On October 29, 2008, through counsel, Appellant amended his

petition, raising eight claims of penalty-phase error and seven claims of

guilt-phase error.


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     On May 13, 2014, the PCRA court granted Appellant penalty-phase

relief by vacating his death sentences and imposing a sentence of life

imprisonment without the possibility of parole (LWOP) on each murder

conviction. The Commonwealth conceded to the granting of this relief and

imposing of the amended sentence.           See Commonwealth’s Supplemental

Motion to Dismiss, 4/17/2014, at 1.

     On May 13-15, 2014, the PCRA court conducted an evidentiary hearing

on some of Appellant’s guilt-phase claims.            The following individuals

testified: Daniel Martell, forensic psychologist; Thomas W. Moore, Jr.,

Esquire,   Appellant’s   trial   counsel;   Robert   Durison,   Director   of   the

Classification Movement and Registration Division of the Philadelphia Prison

System; and Joseph J. Mariano, Esquire, Appellant’s direct appeal counsel.

The PCRA court denied relief on Appellant’s guilt-phase claims on January

13, 2017.1



1  The docket indicates several continuances were granted throughout
Appellant’s PCRA proceedings. However, that does not excuse the nearly 13
years it took to resolve Appellant’s January 21, 2004 PCRA petition. Our
Supreme Court has made clear that “[t]he PCRA court [has] the ability and
responsibility to manage its docket and caseload and thus has an essential
role in ensuring the timely resolution of PCRA matters.” Commonwealth v.
Renchenski, 52 A.3d 251, 260 (Pa. 2012) (citing Commonwealth v.
Porter, 35 A.3d 4, 24–25 (Pa. 2012) (“[T]he court, not counsel, controls the
scope, timing and pace of the proceedings below.”)). Additionally, “post-
conviction counsel must ‘act expeditiously so as to reduce unnecessary
delays and ensure the efficient administration of justice.’” Id. (citing
Commonwealth v. Sneed, 45 A.3d 1096, 1104 n.11 (Pa. 2012)).



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      This timely-filed appeal followed. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925. On appeal, Appellant raises seven issues for

our review. Appellant’s Brief at 1-2.

                                        I.

      Before reaching the merits of Appellant’s claims, we address whether

this Court or our Supreme Court has jurisdiction over this appeal. This Court

has “exclusive jurisdiction of all appeals from final orders of the courts of

common pleas … except such classes of appeals as are by any provision of

this chapter within the exclusive jurisdiction of the Supreme Court or the

Commonwealth Court.” 42 Pa.C.S. § 742. Our Supreme Court has exclusive

jurisdiction of appeals from final orders of the courts of common pleas in,

inter alia, automatic review of sentences as provided by 42 Pa.C.S.

§ 9546(d) (providing that in the PCRA context, “[a] final court order … in a

case in which the death penalty has been imposed shall be directly

appealable only to the Supreme Court”). 42 Pa.C.S. § 722(4).

      In this case, while the death penalty had been imposed in the past, as

part of Appellant’s PCRA relief, the death penalty was vacated and replaced

with two LWOP sentences. Thus, our jurisdictional analysis turns on whether

a PCRA order granting penalty-phase relief and resentencing a defendant to

a non-death sentence, but denying guilt-phase relief, qualifies as a PCRA

case in which the death penalty has been imposed for purposes of

subsection 9546(d).   If such an order falls within the scope of subsection


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9546(d), it must be appealed directly to our Supreme Court. However, if it

falls outside the scope of subsection 9546(d), this Court has jurisdiction to

entertain the appeal.

      We begin with an analysis of subsection 9546(d), the relevant

jurisdictional provision.       When this Court interprets a statute, we do so

mindful of the following principles.

      [O]ur objective is to ascertain and effectuate the intention of the
      General Assembly[,] and that [e]very statute shall be construed,
      if possible, to give effect to all of its provisions. This Court may
      not ignore the language of a statute, nor may we deem any
      language to be superfluous. Governing presumptions include
      that the General Assembly intended the entire statute at issue to
      be effective and certain, and that the General Assembly did not
      intend an absurd result.

Bayview Loan Servicing, LLC v. Lindsay, 185 A.3d 307, 312 (Pa. Super.

2018) (citations and quotation marks omitted).             “In reading the plain

language, ‘[w]ords and phrases shall be construed according to rules of

grammar and according to their common and approved usage[.]’” Gross v.

Nova Chemicals Servs., Inc., 161 A.3d 257, 264 (Pa. Super. 2017)

(quoting 1 Pa.C.S. § 1903(a)).

      Thus, we consider first the plain language of subsection 9546(d): “A

final court order under this subchapter in a case in which the death penalty

has been imposed shall be directly appealable only to the Supreme Court

pursuant   to   its   rules.”     42   Pa.C.S.   §   9546(d)   (emphasis   added).

Grammatically, the verb “has been” is used when a condition was imposed in



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J-S82027-18


the past and continues to be imposed in the present.            Contrarily, in

Appellant’s case, the death penalty had been imposed in the past, but does

not continue to be imposed at the present time. Thus, the plain language of

subsection 9546(d) indicates that a death sentence must remain a potential

sentence at the time of the appeal in order for the Supreme Court to possess

exclusive jurisdiction over a PCRA appeal.   The relevant case law supports

this conclusion.

      In Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001), the PCRA

court had granted penalty-phase relief in the form of a new penalty hearing,

but denied guilt-phase relief. Our Supreme Court held that it had exclusive

jurisdiction over that appeal because the “legislature [does] not require that

the sentence of death actually be pending in order for th[e Supreme] Court

to have jurisdiction.” Id. at 648. Importantly, a death sentence remained a

possibility because Bryant still could have been sentenced to death following

his new penalty phase hearing.     See Commonwealth v. Rompilla, 983

A.2d 1207, 1211 (Pa. 2009) (distinguishing Bryant because it was a PCRA

appeal where a new penalty-phase hearing was pending “and the prospect of

a sentence of death remained”).

      That is not the case here. Appellant is not awaiting a new sentencing

hearing.   Appellant has already been resentenced to LWOP. No party has

appealed this new sentence.     As such, not only is a death sentence not

currently pending, it has been eliminated as a potential sentence. In other


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J-S82027-18


words, there simply is no current or potential death sentence applicable

here.

        Moreover, in Rompilla, our Supreme Court clarified that although the

death penalty had been imposed in the past, once it is vacated and replaced

with a LWOP sentence, our Supreme Court no longer has exclusive

jurisdiction over such a case.

        The statutory reference [in 42 Pa.C.S. § 9711(h)(1)] to a
        “sentence of death,” which vests jurisdiction in th[e Supreme]
        Court, plainly does not encompass cases in which the death
        penalty was imposed at one time but subsequently was vacated
        and a judgment of sentence of life imprisonment was imposed.
        The sentence in this case is life imprisonment, not death. Our
        capital appeal jurisdiction simply does not exist for a defendant
        such as appellant who is actually unaggrieved by the murder
        sentence below, and who seeks to litigate collateral complaints
        when the life/death outcome could not have been better for him.

983 A.2d at 1211.

        We are cognizant that Rompilla involved the interpretation of 42

Pa.C.S. § 9711(h), not subsection 9546(d).        However, we find its sound

reasoning applicable here.       Appellant is not facing a sentence of death.

Once he was resentenced to LWOP, his appeal was no longer within the

exclusive jurisdiction of our Supreme Court.     See Rompilla, 983 A.2d at

1211 (“The sentence under review here is life imprisonment; jurisdiction

over the appeal lies in the Superior Court.”); see also Commonwealth v.

Kindler, 147 A.3d 890, 893 (Pa. 2016) (noting that subsection 9546(d)

empowers our Supreme Court with exclusive jurisdiction “of appeals from



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J-S82027-18


final orders entered in PCRA proceedings where the petitioner faces a

sentence of death”). This Court is more than qualified to handle this PCRA

appeal of two LWOP sentences in the first instance, and we find no

precedent compelling us to transfer this case to our Supreme Court.

      Satisfied that we have jurisdiction over this appeal, we now proceed to

the merits of Appellant’s claims.

                                      II.

      On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the

record.   Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.

2017) (citation omitted). “The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we apply a de

novo standard    of   review   to   the     PCRA   court’s   legal   conclusions.”

Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted).

      Because some of Appellant’s claims allege that the PCRA court erred in

denying his petition without first holding an evidentiary hearing, we also

keep the following in mind.

      [T]he right to an evidentiary hearing on a post-conviction
      petition is not absolute. It is within the PCRA court’s discretion
      to decline to hold a hearing if the petitioner’s claim is patently
      frivolous and has no support either in the record or other
      evidence. It is the responsibility of the reviewing court on appeal
      to examine each issue raised in the PCRA petition in light of the
      record certified before it in order to determine if the PCRA court
      erred in its determination that there were no genuine issues of



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      material fact in controversy and in denying relief without
      conducting an evidentiary hearing.

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (citations

omitted). “Thus, to obtain reversal of a PCRA court’s decision to dismiss a

petition without a hearing, an appellant must show that he raised a genuine

issue of fact which, if resolved in his favor, would have entitled him to relief,

or that the court otherwise abused its discretion in denying a hearing.”

Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004).                See also

Commonwealth v. Paddy, 15 A.3d 431, 467 (Pa. 2011).

                                       A.

      In Appellant’s first claim, he argues that the PCRA court erred in

dismissing his claim that the Commonwealth had committed a violation

pursuant to Brady v. Maryland, 373 U.S. 83 (1963),2 by failing to disclose

evidence calling into question the credibility of the key Commonwealth

witness and Appellant’s co-conspirator, Blakeney. Appellant’s Brief at 15.

      We set forth the following with respect to a Brady claim:

      Under Brady[] and subsequent decisional law, a prosecutor has
      an obligation to disclose all exculpatory information material to
      the guilt or punishment of an accused, including evidence of an
      impeachment nature. To establish a Brady violation, an
      appellant must prove three elements: (1) the evidence at issue
      is favorable to the accused, either because it is exculpatory or
      because it impeaches; (2) the evidence was suppressed by the


2 A Brady claim is cognizable under the PCRA. See Commonwealth v.
Simpson, 66 A.3d 253, 264 n.16 (Pa. 2013) (citation omitted).



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J-S82027-18


       prosecution, either willfully or inadvertently; and (3) prejudice
       ensued.

Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa. 2012).

       Specifically, Appellant alleges that the Commonwealth committed a

Brady violation by withholding evidence that Blakeney was mentally ill.

Appellant’s Brief at 15-16.      According to Appellant, the Commonwealth

withheld Blakeney’s plea colloquy and various medical records that detailed

Blakeney’s mental illnesses. Amended PCRA Petition, 10/29/2008, at 124-

29. On appeal, Appellant claims that Blakeney’s credibility could have been

challenged had Attorney Moore been aware of Blakeney’s “psychotic

episodes, blackouts, command hallucinations, head injuries, lead poisoning,

rage   attacks,   manipulativeness,    learning   disabilities,   and   [use   of]

psychotropic drugs[.]” Appellant’s Brief at 20.

       We consider this claim mindful of the following.

             When a witness suffers from a mental disability relevant to
       his or her ability to accurately observe, recall or report events,
       the jury must be informed of the disability in order to assist it in
       properly assessing the weight and credibility of the witness’s
       testimony. The evidence can be said to affect credibility when it
       shows that the witness’s mental disorganization impaired his or
       her capacity to observe an event at the time of its occurrence, to
       maintain a clear recollection of it, or to communicate the
       observation accurately and truthfully at trial.

Commonwealth v. Davido, 106 A.3d 611, 637 (Pa. 2014) (citations

omitted).




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Blakeney’s Plea Record

      By way of background, Blakeney pleaded guilty in camera on July 16,

1998. At the conclusion of his plea, the plea court sealed Blakeney’s record.

Following Appellant’s jury trial, the trial court issued a separation order for

Blakeney to be kept separate from Lloyd, Appellant, and Gregory while

incarcerated.   Separation Order, 10/26/1999.         Blakeney’s plea record

remained sealed until the PCRA court ordered its production for inspection by

PCRA counsel and the Commonwealth pursuant to the instant PCRA

petition.3 Order, 11/29/2006.

      On appeal, Appellant contends that Blakeney’s plea record was

material under Brady as mental health impeachment evidence of a vital

Commonwealth witness.      Appellant’s Brief at 21.    Additionally, Appellant

claims that the Commonwealth requested that Blakeney’s record be sealed

at the conclusion of his plea, and therefore the Commonwealth cannot now



3 Blakeney’s plea transcript is not included in the certified record. We note
that Appellant filed an appendix to his amended PCRA petition, and the index
to that appendix indicates that this transcript may have been included in the
record below. See Appendix and Certification of Witnesses to Amended
PCRA Petition and Writ of Habeas Corpus, 12/3/2009, at 2 (unnumbered).
As discussed in detail infra, if the transcript was included in the appendix in
the record below, it was not transmitted to this Court on appeal. However,
because the transcript’s absence does not hinder our review, we do not find
this claim waived. See Commonwealth v. Houck, 102 A.3d 443, 456 (Pa.
Super. 2014) (citation omitted) (noting that an appellant’s failure to ensure
the inclusion of any necessary transcript in the certified record renders any
claim that cannot be resolved in the absence of that transcript waived).



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hide behind its sealing to claim that it did not have access to Blakeney’s plea

record. Id. at 21-22.

      At Appellant’s PCRA hearing, Attorney Moore, Appellant’s trial counsel,

testified that the Commonwealth did not disclose Blakeney’s plea record to

him as part of discovery in Appellant’s trial.     N.T., 5/14/2014, at 14-15.

However, the PCRA court dismissed Appellant’s Brady claim because he

failed to prove that the Commonwealth possessed Blakeney’s plea record,

and thus no Brady violation occurred.        Trial Court Opinion, 1/18/2018, at

10.

      Appellant’s claim assumes that evidence of Blakeney’s mental health

at the time of his plea would have constituted admissible impeachment

evidence at Appellant’s trial. However, “[o]nly mental health disabilities that

impair a witness’s ability to observe, recall, or report events, are relevant

and admissible to impeach a witness’s credibility.” Davido, 106 A.3d at 637

(citation omitted).     The only condition cited by Appellant that could

potentially be used to impeach Blakeney’s ability to recall events would be

Blakeney’s purported blackouts.     But upon closer inspection, Blakeney’s

statement about blackouts during his plea proceeding, as read by Martell,

the forensic psychologist, at the PCRA hearing, was that Blakeney suffered

blackouts when frustrated or after getting hit.       N.T., 5/13/2014, at 47.

There is no indication that either triggering event occurred during the course

of this robbery and murder.      Therefore, we find that Appellant has not


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established    that    such    impeachable      evidence    existed,       and   thus    the

Commonwealth had no obligation under Brady to seek the unsealing of

Blakeney’s plea record. Accordingly, the PCRA court did not err in denying

Appellant’s Brady claim regarding Blakeney’s plea record.

Blakeney’s Mental Health Records

     Separately, Appellant claims that the Commonwealth failed to disclose

Blakeney’s mental health records. On appeal, Appellant contends that these

records were material under Brady as mental health impeachment evidence

of a vital Commonwealth witness. Appellant’s Brief at 21.

     At Appellant’s PCRA hearing, Attorney Moore testified that the

Commonwealth did not disclose Blakeney’s mental health records to him as

part of discovery in Appellant’s trial. N.T., 5/14/2014, at 14-15. However,

the PCRA court dismissed Appellant’s Brady claim because he failed to prove

that the Commonwealth possessed the referenced medical records, and thus

no Brady violation occurred. Trial Court Opinion, 1/18/2018, at 10.

     Again,     Appellant      has   not    established   that     there   was    anything

impeachable in Blakeney’s mental health records. See Davido, supra. In

one mental health record, as relayed by Martell at the PCRA hearing,

Blakeney      had    explosive   rage      reactions,   which    involved    seeing      red

beforehand     and    not     remembering      what     occurred    afterwards.         N.T.,

5/13/2014, at 81-82.          As with Blakeney’s plea statement, this statement

does not undermine Blakeney’s trial testimony of what occurred during the


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robbery and murder.     There is no indication that a blackout would have

occurred during the robbery and murder, affecting his ability to perceive the

events and recall them at Appellant’s trial. Even if this evidence constituted

impeachment evidence, our review of the record supports the PCRA court’s

finding that the Commonwealth did not have the medical records in its

possession at the time of Appellant’s trial. Because the Commonwealth did

not possess the evidence, it could not suppress the evidence, willfully or

inadvertently. Accordingly, the PCRA court did not err in denying Appellant’s

Brady claim.

                                     B.

      Appellant next argues that the PCRA court erred in dismissing his

layered ineffective-assistance-of-counsel claim that Attorneys Moore and

Mariano were ineffective for “failing to request a more probing inquiry of the

coercion [of one juror into voting guilty, and another juror who improperly

consulted his minister for advice on the verdict and prayed with other

jurors,] and failing to raise and preserve these issues.” Appellant’s Brief at

24.

      We use the following standard to evaluate ineffective assistance of

counsel claims.

            It is well-established that counsel is presumed to
            have provided effective representation unless the
            PCRA petitioner pleads and proves all of the
            following: (1) the underlying legal claim is of
            arguable merit; (2) counsel’s action or inaction


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            lacked any objectively reasonable basis designed to
            effectuate his client’s interest; and (3) prejudice, to
            the effect that there was a reasonable probability of
            a different outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal citations omitted).

      By way of background, the jury began deliberating at 11:38 a.m. on

September 24, 1999. N.T., 9/24/1999, at 62. The jurors were dismissed for

the weekend, and scheduled to report back to continue deliberations at 9:00

a.m. on Monday, September 27, 1999. Id. at 70. That Monday, the trial

court notified the parties that Juror 11 privately reported to a court officer

that she felt pressured and wanted to change her vote. N.T., 9/27/1999, at

10.   Upon inquiry, the court officer indicated that at approximately 8:30

a.m., Juror 11 approached him in the hallway, outside the presence of the

other jurors, and asked him whether she could change her vote on

something she did Friday. He told her that she could do so because nothing

was official yet. Id. at 12-13. Separately, the court received a written jury

question about conspiracy at 9:40 a.m. that day. Id. at 11-12.

      Based on this, the Commonwealth believed that further deliberations

had resolved the problem, and asked that the court instruct the jury that the

verdict is not final until it is recorded in open court. Id. at 13. Appellant’s



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trial counsel found that remedy satisfactory and did not request any

additional relief.   Id. at 13-14.     After responding to the jury’s written

question about conspiracy, the court provided the following additional

instruction: “I also want to remind you that no determination or verdict is

final until the jury as a whole returns a unanimous verdict in open court and

it is recorded.” Id. at 16. Following a full day of deliberations, the jury was

again dismissed for the evening, to report on Tuesday, September 28, 1999.

Id. at 20. The jury reached a final verdict on Wednesday, September 29,

1999.

        In his amended PCRA petition, Appellant cited to and quoted PCRA

witness certifications obtained at some point after the verdict from Juror 11

and Juror 9 in support of Appellant’s claim that Juror 11 was coerced into

voting guilty. Amended PCRA Petition, 10/29/2008, at 188-89.4


4 After a thorough review of the record, we have determined that the
Appendix and Certification of Witnesses for Appellant’s Amended PCRA
Petition does not contain these certifications.     In fact, that document
comprises only four pages: a cover page, a partial index (listing items 42-
59), and two pages consisting of the affidavit/declaration of Kenneth Ruffin,
Appellant’s father. See Appendix and Certification of Witnesses to Amended
PCRA Petition and Writ of Habeas Corpus, 12/3/2009.

              This Court cannot meaningfully review claims raised on
        appeal unless we are provided with a full and complete certified
        record. This requirement is not a mere “technicality” nor is this a
        question of whether we are empowered to complain sua sponte
        of lacunae in the record. In the absence of an adequate certified
        record, there is no support for an appellant’s arguments and,
        thus, there is no basis on which relief could be granted.
(Footnote Continued Next Page)


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(Footnote Continued)   _______________________




Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)
(some citations omitted).

      In the absence of specific indicators that a relevant document
      exists but was inadvertently omitted from the certified record, it
      is not incumbent upon this Court to expend time, effort and
      manpower scouting around judicial chambers or the various
      prothonotaries’ offices of the courts of common pleas for the
      purpose of unearthing transcripts, exhibits, letters, writs or PCRA
      petitions that well may have been presented to the trial court
      but never were formally introduced and made part of
      the certified record. If, however, a copy of a document has been
      placed into the reproduced record, or if notes of testimony are
      cited   specifically   by    the    parties  or    are   listed   in
      the record inventory certified to this Court, then we have reason
      to believe that such evidence exists. In this type of situation, we
      might well make an informal inquiry to see if there was an error
      in transmitting the certified record to this Court. We might also
      formally remand the matter to the trial court to ascertain
      whether notes of testimony or other documentation can be
      located and transmitted.        If a remand is necessary, it is
      appropriate to direct the trial court to determine why the
      necessary documentation was omitted from the certified record.
      An appellant should not be denied appellate review if the failure
      to transmit the entire record was caused by an ‘extraordinary
      breakdown in the judicial process.’ However, if the appellant
      caused     a    delay   or    other   problems    in   transmitting
      the certified record, then he or she is not entitled to relief and
      the judgment of the court below should be affirmed.

Id. at 7–8 (citations omitted).

      We undertook efforts to inquire with our prothonotary’s office to
determine whether there was an error in transmitting the certified record on
appeal, and learned that the clerk only received the four pages outlined
supra. We note, however, that both Appellant and the Commonwealth cited
and quoted the witness certifications in writings to the PCRA court and this
Court. Moreover, the record indicates that the certifications existed within
the appendix, but were not transmitted. Because there is no evidence that
(Footnote Continued Next Page)


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      Juror 11’s certification is reproduced as follows.

             The other jurors were really pressuring me.

             They kept saying “let’s get it over with.” They made
             me feel that I wasn’t allowed to have my own
             opinion. I was the youngest one there. I held out as
             long as I could, but they yelled at me and called me
             names and made me feel like I was responsible for
             them not being able to go home.

             They kept saying, “we’re not having a hung jury.
             We’re not having spent all this time here so that you
             can screw it up for the rest of us.” They pressured
             me like crazy. I think I spent half my time in the jury
             room crying. I kept saying, “[Appellant’s] not guilty
             and I’m not going to be responsible for what
             happens to him.” Finally, I just caved under the
             pressure. I felt awful.

      Certification of Witnesses, [Juror 11].

Amended PCRA Petition, 10/29/2008, at 188-89.              See also Motion to

Dismiss, 6/29/2010, at 125 n.54 (discussing and quoting portions of

certification with citation to appendix); Appellant’s Brief at 27 (quoting a

portion).

      According to Appellant, Juror 9’s certification supports his allegation of

coercion of Juror 11.

             I remember that there was a big argument in the
             jury room. We could not agree on who was actually
             guilty of the crime.  There were opinions in all
(Footnote Continued)   _______________________



Appellant caused the problem in transmitting the record, and because
Appellant seemingly quotes the certifications in their entirety in his amended
PCRA petition, in the interest of judicial economy, we will review Appellant’s
claim as if the quoted certifications were part of the certified record.



                                                 - 19 -
J-S82027-18


            directions and we were a hung jury for a long time.
            The biggest hold out was this young black girl. We
            argued against her and she finally caved in.      I
            remember that the jury deliberated forever. We
            wanted to go home. We weren’t going home if we
            didn’t agree with her or get her to agree with us.
            They were going to sequester us.

            I was probably a bully during the deliberation. I was
            the voice of reality.     My mom worked for the
            Orphan’s Court and I have been to many trials in the
            past. I also used to work for the probation office. I
            am really familiar with criminals and the way people
            act. So I had an advantage over the other jurors
            because I understood how these young boys think
            and where they were coming from.

      Certification of Witnesses, [Juror 9].

Amended PCRA Petition, 10/29/2008, at 189. See also Motion to Dismiss,

6/29/2010, at 125 n.54 (discussing and quoting portions of certification with

citation to appendix); Appellant’s Brief at 28 (quoting a portion).

      Separately, Appellant cited to and quoted another portion of Juror 9’s

PCRA witness certification in support of his claim that Appellant was denied a

fair trial because Juror 9 prayed with other jurors and sought guidance from

his minister during the deliberations.

            I am a Christian and I had to pray over my decision.
            I prayed with several others in the jury room. I also
            had to talk to my pastor about this. I went to him
            before I made my final decision. I was so confused.
            I asked him, “can I convict a man to death and not
            be guilty of murder myself.” We didn’t talk about
            the specific crime, but I was concerned about doing
            something un-Christian. He gave me the guidance
            and the strength to make my decision. He said
            “render unto Caesar that which is Caesar[’]s and
            render unto God that which is God’s.”

                                     - 20 -
J-S82027-18


      See Affidavit of [Juror 9].

Amended PCRA Petition, 10/29/2008, at 191. See also Motion to Dismiss,

6/29/2010, at 129-30 (discussing and quoting portions of certification

without citation to appendix).

      In its order denying Appellant an evidentiary hearing on this claim, the

PCRA court found this issue was waived and meritless on its face. Order,

6/8/2012, at 2 (unnumbered).

      Preliminarily,   we   note    that   Appellant’s   direct   appeal   predated

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), where our Supreme

Court held that, as a general rule, claims of ineffective assistance of counsel

should not be raised until collateral review, overruling prior case law

permitting review of such claims in the first instance on direct appeal. As

such, Appellant was required to raise any ineffective assistance of trial

counsel claims in that appeal, including the instant claim that Attorney

Moore was ineffective for failing to investigate Juror 9 and Juror 11, or

preserve the issue regarding Juror 11’s communication to the trial court.

Though Appellant raised several claims of ineffective assistance of trial

counsel in his direct appeal, he did not raise this claim.        See Miller, 819

A.2d at 516 n.12, 517-19. Therefore, the PCRA court did not err in finding

Appellant’s claim waived as to Attorney Moore. See 42 Pa.C.S. § 9544(b)

(“[A]n issue is waived if the petitioner could have raised it but failed to do so




                                       - 21 -
J-S82027-18


before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.”).

      However, even if not waived, we agree with the PCRA court that the

claim, as to both Attorneys Moore and Mariano, is meritless on its face.

             It is a general rule of law that a juror may not impeach the
      jury’s verdict after the jury has been discharged, though an
      exception to this rule is made in situations where the jury was
      exposed to an ex parte influence which possesses a reasonable
      likelihood of prejudice. Although they may testify to the
      existence of an outside influence, jurors are prohibited “from
      testifying as to the effect which these extra-evidentiary
      influences had upon the jurors in reaching a decision,” just as
      jurors are prohibited from recounting the mental processes by
      which they arrived at their verdict. Additionally, we reiterate,
      this Court long ago noted that interviewing jurors after a verdict
      and obtaining from them ex parte, unsworn statements in
      answer to undisclosed questions and representations by the
      interviewers is highly unethical and improper and was long ago
      condemned by this [C]ourt.

Commonwealth v. Tedford, 960 A.2d 1, 39 (Pa. 2008) (citations and

quotation marks omitted).

      Instantly, without determining whether the underlying claims have

merit, we find that both Attorney Moore and Attorney Mariano had an

objectively reasonable basis for not interviewing Jurors 9 and 11 after the

verdict. As to Juror 11’s alleged coercion, Attorney Moore was satisfied with

the Court’s instruction and handling of the matter. Based upon our review of

the record, we find Attorney Moore’s decision in that regard to have an

objectively reasonable basis.     Therefore, Attorney Mariano will not be

deemed ineffective for failing to raise a meritless claim of trial counsel


                                    - 22 -
J-S82027-18


ineffectiveness in that regard.     See Commonwealth v. Spotz, 896 A.2d

1191, 1211 (Pa. 2006) (finding that “counsel will not be deemed ineffective

for failing to raise a meritless claim”).

         As to Juror 9, there is no evidence of record that Attorney Moore or

Attorney Mariano knew that Juror 9 was praying with other jurors or that he

consulted his minister for advice on whether serving as a juror in a death

penalty case was inconsistent with his Christian beliefs. Our Supreme Court

has made clear that attorneys “do not have a recognized duty to interview

jurors in the hopes of uncovering a collateral claim by which to undo the

verdict.” Tedford, 960 A.2d at 40. Accordingly, the PCRA court did not err

in finding Appellant’ claim of ineffective assistance of trial and appellate

counsel meritless.

                                        C.

         Appellant next argues that the PCRA court erred in dismissing his

layered ineffectiveness claim that Attorney Moore was ineffective for failing

to meet meaningfully with Appellant prior to trial, and Attorney Mariano was

ineffective for failing to raise this claim on direct appeal.5 Appellant’s Brief

at 32.

         During Appellant’s evidentiary hearing,    Attorney Moore testified

regarding his representation of Appellant. See generally N.T., 5/14/2014,


5   As noted supra, Appellant’s direct appeal predated Grant, 813 A.2d 726.



                                      - 23 -
J-S82027-18


at 5-96.    Following the hearing, the PCRA court credited Attorney Moore’s

testimony that he prepared adequately for Appellant’s case, met with him

more than once, and did not fail to interview Appellant prior to trial. PCRA

Court Opinion, 1/18/2018, at 11. Upon review of the record, there is ample

support for the PCRA court’s factual findings. See N.T., 5/14/2014, at 45,

50-51, 63-65, 67-68.      Because Appellant’s claim that trial counsel was

ineffective is without merit, appellate “counsel will not be deemed ineffective

for failing to raise a meritless claim.”   Spotz, 896 A.2d at 1210 (citation

omitted).    Accordingly, we conclude that the PCRA court did not err in

dismissing this claim.

                                      D.

      Appellant next argues that the PCRA court erred in dismissing his claim

that Attorney Moore was ineffective for failing to investigate and uncover the

mental health impeachment evidence referenced in Appellant’s first claim to

undermine the credibility of Blakeney. Appellant’s Brief at 37.

      As discussed supra, Blakeney’s plea record was sealed throughout

Appellant’s trial, and Appellant has failed to establish that the record

contained any impeachable evidence.        See Davido, supra.     Additionally,

Attorney Moore testified that because Appellant and Blakeney were friends,

he believed that if Appellant had any useful impeachment evidence,

Appellant would have disclosed that. N.T., 5/14/2014, at 94-96. Attorney

Moore also testified that he would not have interviewed Blakeney because


                                    - 24 -
J-S82027-18


Blakeney was Appellant’s co-defendant and represented by counsel. Id. at

76-77. As such, the PCRA court’s findings are supported by the record, and

we conclude that the court did not err in dismissing this claim.

                                       E.

      Appellant next claims that the PCRA court erred in dismissing his claim

of prosecutorial misconduct when the Commonwealth vouched for the

credibility of Blakeney and the trial court did not give a curative instruction.

Appellant’s Brief at 40. However, as noted by Appellant, this precise claim

was previously litigated during Appellant’s direct appeal.6 Id. Accordingly,


6  On direct appeal, Appellant argued that the prosecutor improperly
bolstered Blakeney’s testimony during direct and redirect examination by
asking him whether his plea was conditioned on his truthful testimony in the
instant case, and that the trial court erred in failing to give a curative
instruction after sustaining defense counsel’s objection on redirect. Miller,
819 A.2d at 513-14. Our Supreme Court held that the prosecutor did not
assert his personal opinion as to Blakeney’s credibility, but was merely
articulating “the parameters of the plea agreement, that Blakeney would
provide ‘truthful’ testimony and a guilty plea, in exchange for life
imprisonment (as opposed to death).” Id. at 515-16. Additionally, the trial
court instructed the jury on how to receive accomplice testimony, including
that those caught in the commission of a crime may falsely accuse others,
and specifically that “the testimony of [] Blakeney should be looked upon
with disfavor as coming from [a] corrupt and polluted source[.]” Id. at 516
(quoting N.T., 9/24/1999, at 20). Our Supreme Court noted that the law
presumes juries will follow the instructions given, and concluded the
Commonwealth did not impermissibly bolster Blakeney’s testimony. Id.
Finally, Appellant also argued that Attorney Moore was ineffective for failing
to object to the Commonwealth’s questions. Because our Supreme Court
concluded that the underlying argument lacked merit, counsel would not be
deemed ineffective for failing to raise a meritless claim, and therefore the
Court did not address the ineffectiveness claim. Id. at 516 n.12.

(Footnote Continued Next Page)


                                     - 25 -
J-S82027-18


the PCRA court properly dismissed this claim. See 42 P.C.S. § 9543(a)(3)

(“To be eligible for relief…, the petitioner must plead and prove by a

preponderance of the evidence[, inter alia, t]hat the allegation of error has

not been previously litigated or waived.”).

                                                   F.

      Appellant next claims that he is entitled to relief because of the

cumulative effect of the errors committed at his trial.                     Appellant’s Brief at

41.    “Although cumulative prejudice from individual claims of ineffective

assistance   may       be     properly       assessed       in   the    aggregate    when   the

individual claims have         failed     due      to     lack   of    prejudice,   an appellant

who claims cumulative prejudice must still set forth some specific, reasoned,

and supported argument for the claim.” Commonwealth v. Watkins, 108

A.3d 692, 735 (Pa. 2014) (citation omitted).                     Appellant’s individual claims
(Footnote Continued)   _______________________



      Appellant attempts to resurrect this claim by citing the mental health
evidence referenced in his first claim because, in his opinion, it shows that
the prosecutor bolstered Blakeney’s testimony while aware that Blakeney
was severely mentally ill. “An issue is not previously litigated when it does
not rely solely upon previously litigated evidence.”     Commonwealth v.
Chmiel, 173 A.3d 617, 627 (Pa. 2017) (citation omitted). However, as
noted supra, the PCRA court found that the Commonwealth did not have in
its possession the detailed mental health records, nor the plea hearing
transcript. The record supports this finding. Moreover, our Supreme Court
held in Appellant’s direct appeal that the Commonwealth did not comment
on the credibility of Blakeney, but rather merely articulated the parameters
of the plea agreement. Blakeney’s mental health does not affect those
terms. Thus, because Appellant has failed to establish a new fact upon
which he relies, he cannot resurrect this claim from the graveyard of
previous litigation.



                                                 - 26 -
J-S82027-18


did not fail for lack of prejudice, and so the prejudice cannot be

accumulated.         Moreover, given Appellant’s paltry argument and that his

claims of error are either meritless, waived, or previously litigated, we

conclude that such claims, even if accumulated together, do not warrant

relief.

                                          G.

          Finally, Appellant claims that he was denied a full and fair PCRA

hearing based on various, allegedly erroneous, court rulings.          Appellant’s

Brief at 43-44.       However, Appellant does not cite a single authority in

support of this claim.

          Our rules of appellate procedure require an appellant to support
          his or her argument with pertinent analysis, including citation to
          and discussion of relevant authority and facts of record.
          See Pa.R.A.P. 2119. This court will not become the counsel for
          an appellant and develop arguments on an appellant’s behalf,
          and waiver of an issue results when an appellant fails to
          properly develop an issue or cite to legal authority to support his
          contention in his appellate brief.

Commonwealth v. Cox, 72 A.3d 719, 721 n.3 (Pa. Super. 2013) (some

citations omitted). Accordingly, this claim is waived.

                                         III.

          Based on the foregoing, none of Appellant’s claims entitle him to relief

and, accordingly, we affirm the order of the PCRA court.

          Order affirmed.

          Judge Lazarus joins in this opinion.



                                        - 27 -
J-S82027-18


     Judge Olson files a dissenting opinion.




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/11/2019




                                   - 28 -
