J-S78010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JEFFREY CEPEDA

                            Appellant                No. 821 MDA 2014


                   Appeal from the PCRA Order April 23, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001759-2005


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED FEBRUARY 19, 2015

        Appellant, Jeffrey Cepeda, appeals from the order entered in the Berks

County Court of Common Pleas, which dismissed his first petition brought

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

        The PCRA court’s opinion sets forth the relevant facts and procedural

history of this case as follows:

          Appellant was convicted of third degree murder and
          related charges in connection with the shooting death of
          19-year-old Rene Castro, known by some witnesses as
          “Buzz” (…“Victim Rene Castro”), in the early morning
          hours of December 31, 2004. At trial, the Commonwealth
          presented multiple witnesses to the shooting, including
          Priscilla Rodriguez, Robert Cairnes, Crystal Talarico, Erica
          Nowotarski, Jared Hopgood, Amy Smith, and Omar
          Serrano.     All of these witnesses saw the events of
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
J-S78010-14


       December 31, 2004 unfold from various vantage points
       along Perkiomen Avenue in Reading, Berks County,
       Pennsylvania.    They each testified to substantially the
       same facts: that Appellant and Victim Rene Castro were
       engaged in a verbal argument as they walked along
       Perkiomen Avenue, that Victim Rene Castro walked onto a
       porch, a physical altercation ensued between the men, and
       Appellant ultimately shot Victim Rene Castro three times.
       None of the witnesses characterized Victim Rene Castro as
       the aggressor in the argument, and no one saw a gun in
       his hand prior to the shooting. Several Commonwealth
       witnesses testified that they saw Appellant shoot Victim
       Rene Castro, and that eventually Victim Rene Castro
       produced a gun, but by that time Appellant was already
       running away.

       Commonwealth witness Priscilla Rodriguez testified that, in
       the very early morning hours of December 31, 2004, the
       sounds of an argument in the street caught her attention.
       Upon looking out her window, she recognized a man she
       knew as “Buzz” (Victim Rene Castro), and saw Appellant
       shoving Victim Rene Castro as the two men walked on
       Perkiomen Avenue toward 17th Street.           She further
       testified that Appellant “pushed (Victim Rene Castro) in his
       face” and then walked away, crossing the street. After a
       further exchange of words and gestures, however,
       Appellant ran back across the street and followed Victim
       Rene Castro onto the porch. She then heard the sound of
       punching, followed by three gun shots, fixed in rapid
       succession. She saw Appellant walk away, look back at
       Victim Rene Castro on the porch, and then run away from
       the scene.

       Similarly, Commonwealth witness Jarod Hopgood, who did
       not personally know [Victim Rene Castro] but recognized
       him from the neighborhood, testified that he had been on
       the phone with Priscilla Rodriguez on December 31,
       2004[,] and recalled her telling him that she heard an
       argument in front of her house on Perkiomen. Avenue.
       Hopgood lived on the same block as Ms. Rodriguez, and his
       first floor apartment faced the street. He went out onto
       his porch and watched the argument unfolding on the
       street. Mr. Hopgood also noticed two other people in the
       street or on the sidewalk, but it appeared to him that they

                                  -2-
J-S78010-14


       were not involved in the argument. He testified:

          Well, I saw—I saw Rene (Victim Rene Castro). He
          was standing there. And someone was arguing with
          him. And the person—Rene wasn’t saying too much.
          It was the other person who was yelling at him.

       At some point, Victim Rene Castro threw his hands up and
       walked away, but the other person (later identified as
       Appellant) followed him, continuing to yell.     Appellant
       turned and began walking away from Victim Rene Castro,
       but then there was a yell and Appellant ran, specifically he
       sprinted, back towards the porch where Victim Rene Castro
       was then standing. “When he started sprinting, I went
       into the house. I didn’t—I got a bad feeling.” When Mr.
       Hopgood got inside, one of his friends reported that the
       men had begun to fight. Wanting to watch the fight, he
       decided to return to his front porch. Before he made it
       back outside, however, he heard gunshots.          He saw
       Appellant standing in front of Victim Rene Castro with his
       arm extended toward Mr. Castro, but did not see a gun.
       Mr. Hopgood retreated to his apartment a second time, but
       at some point came back outside and saw Victim Rene
       Castro “slumped in the vestibule” of the house where the
       shooting had taken place.

       Commonwealth witness Robert Cairnes, who was Jarod
       Hopgood’s roommate at 1621 Perkiomen Avenue at the
       time of the shooting, testified that on December 31,
       2004[,] while hanging out with friends at home, he heard
       an argument outside his apartment. He walked over to a
       bay window facing Perkiomen Avenue, and looked out
       through the blinds. He testified to seeing three men
       walking and arguing, coming from the direction of the A-
       Plus mini market towards his residence.       Mr. Cairnes
       moved to the vestibule in the front of the apartment
       building to watch. He recognized “Buzz” (Victim Rene
       Castro), and saw that he was involved in an argument with
       two other men, who were yelling. Mr. Cairnes testified
       that the argument was loud enough to be heard from
       inside his apartment. It appeared to him that Appellant
       was arguing with Victim Rene Castro and that the third
       man was “just tagging along,” not participating in the
       argument. At some point, Mr. Cairnes saw Victim Rene

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J-S78010-14


       Castro cross the street to “Omar’s house” (Commonwealth
       witness Omar Serrano), directly across from the witness’
       house. He saw Victim Rene Castro knock on the window of
       the house a few times, and then enter the building’s front
       vestibule. Mr. Cairnes then saw Mr. Omar Serrano come
       out of the residence and stand with Victim Rene Castro.
       Mr. Cairnes did not see anything in either man’s hands
       prior to the fight that ensued, and he did not see Victim
       Rene Castro hit Appellant at any time. He saw Victim Rene
       Castro reel backward after being hit by Appellant, and
       stated that Mr. Serrano was not a participant in the fight.
       After Victim Rene Castro was knocked back by Appellant’s
       blows, Mr. Cairnes testified that he saw Appellant reach
       towards his waist, and then he heard shots. “I just seen
       him reach for his waist. And the next thing you know
       three gunshots are fired.” He said the shots were fired
       while Victim Rene Castro was recovering from the blow to
       the head. Mr. Cairnes then saw Appellant turn and run
       down the street and noticed that the other people he had
       seen earlier were also running. Although Mr. Cairnes did
       not see anything in his hand prior to the shooting, he
       testified that, after being shot, Victim Rene Castro
       stumbled back into the vestibule or hallway, and when he
       reappeared he had a gun in his hand. By the time Victim
       Rene Castro re-emerged with the weapon, Appellant was
       already across the street and running away. On cross-
       examination, Mr. [Cairnes] reiterated that before [Victim
       Rene Castro] was shot, [Mr. Cairnes] did not see Victim
       Rene Castro reach for anything.

       Commonwealth witness Crystal Talarico testified that on
       the night of the shooting, she had been at 1621 Perkiomen
       Avenue with Robert Cairnes, Erica Nowotarski, Eddie
       Schwambach, Jarod Hopgood and Phil Reifsnyder when she
       heard yelling “out front.” The entire group went to the
       front porch, with the exception of Phil Reifsnyder who was
       already sleeping. She saw two people arguing, and also
       saw two other people who did not appear to be involved in
       the argument. Like the other witnesses, Crystal Talarico
       did not see a gun in anyone’s hand prior to the shooting,
       however she did see Appellant extend his right arm, heard
       three shots, and simultaneously saw “some kind of light go
       off,” which she further described as “like sparks.”


                                  -4-
J-S78010-14


       Commonwealth witness Erica Nowotarski testified that she,
       too, heard arguing on December [31], 2004[,] outside the
       residence on Perkiomen Avenue, which prompted her to
       look outside where she saw “two guys in the street
       arguing.” She also noted that there were other people on
       the street, and observed that Victim Rene Castro was
       wearing a fur-trimmed jacket.        With respect to the
       argument, Ms. Nowotarski testified that it looked to her
       like Victim Rene Castro did not wish to argue, because, as
       she explained: “Rene was walking away from it. He didn’t
       want anything to do with it.” She saw Victim Rene Castro
       walk to a house and knock on the door, and then saw
       Appellant come up on the porch behind Victim Rene Castro
       and hit him in the head. Appellant hit Victim Rene Castro
       on the head as he was walking away. She never saw
       Victim Rene Castro punch Appellant. Ms. [Nowotarski]
       then testified that she saw Appellant pull out his gun, hold
       it out towards Victim Rene Castro, and then she heard
       three shots.

       Commonwealth witness Amy Smith, who lived on the
       sixteen hundred block of Perkiomen Avenue at the time of
       the shooting, testified that at 12:49 a.m. on December 31,
       2004[,] she was watching TV in her first-floor living room
       when she heard arguing. She looked outside and saw two
       men engaged in an argument, one of which was bald and
       the other of which was wearing a coat with fur around the
       hood. She testified that although both men were arguing,
       the bald one was doing “more yelling.” Ms. Smith did not
       see anything in either of the men’s hands. She indicated
       that the man with the fur-trimmed hood started walking
       away first, and that the bald man followed him. The men
       then walked out of her view, and, after approximately ten
       or fifteen minutes, she heard gunshots and called 911.

       Commonwealth witness Omar Serrano testified that on
       December 31, 2004[,] he was residing at 1622 Perkiomen
       Avenue in the City of Reading, and that in the early
       morning hours of that day he was watching television in
       the living room when he heard a knock at his window. He
       went to the window to see who it was and
       recognized…Victim Rene Castro. Mr. Serrano opened the
       front door and saw Victim Rene Castro and another
       individual arguing on the front porch. He identified that

                                  -5-
J-S78010-14


         other person as Appellant.       Mr. Serrano testified that
         Appellant began to hit Victim Rene Castro on the head,
         punching him with both hands while Victim Rene Castro
         attempted to shield himself from the blows. Mr. Serrano
         testified that he could see Victim Rene Castro’s hands, and
         that there was nothing in them. Mr. Serrano testified that
         he intervened in the fight, and that Appellant went to the
         steps while Victim Rene Castro remained on the porch with
         him.     When asked what happened next, he stated,
         Appellant “pulled out a gun and shoot him.” He elaborated
         a bit, saying that Appellant had pulled a gun from his
         waist, pointed it at Victim Rene Castro, and shot him. He
         also testified definitively that Victim Rene Castro did not
         have a gun in his hands at the time he was shot. Mr.
         Serrano then ran inside the building to his apartment, and,
         after a few minutes, called 911.

(PCRA Court Opinion, filed July 28, 2014, at 2-8) (internal citations to record

omitted).   A jury convicted Appellant on April 20, 2006, of third-degree

murder, two counts of aggravated assault, firearms not to be carried without

a license, and two counts of possessing instruments of crime.       The court

sentenced Appellant on June 23, 2006, to an aggregate term of fifteen (15)

to thirty (30) years’ imprisonment. Appellant did not file any post-sentence

motions or a direct appeal.

      The PCRA court’s opinion further summarized:

         On November 30, 2006[,] Appellant filed a pro se [PCRA]
         petition seeking restoration of his appellate rights, which
         [the PCRA court] granted on July 14, 2008. Thereafter
         Appellant filed a direct appeal nunc pro tunc. On August 9,
         2009[,] Appellant’s appeal was quashed as untimely, and
         he was directed to file a PCRA petition to restore his direct
         appeal rights. Accordingly, on October 8, 2009, Appellant
         filed a second PCRA petition, which [the PCRA court]
         granted and Appellant again appealed to the Superior
         Court. His judgment of sentence was affirmed on January
         12, 2011[,] and the Pennsylvania Supreme Court denied

                                     -6-
J-S78010-14


        Appellant’s Petition for Allowance of Appeal on August 30,
        2011. On August 17, 2013, Appellant filed another pro se,
        check-the-box motion for post conviction collateral relief.
        [The PCRA court] appointed PCRA counsel…to represent
        Appellant in the disposition of his PCRA claims. After
        exhaustively reviewing the record and finding no issues of
        merit, PCRA counsel filed a “No Merit” Letter pursuant to
        Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
        1988) and Commonwealth v. Turner, 544 A.2d 927 (Pa.
        1988). …

(PCRA Court Opinion at 1-2).      On February 24, 2014, the PCRA court

granted counsel’s motion to withdraw, and issued notice of its intent to

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

Appellant filed a pro se response on March 19, 2014.         The PCRA court

subsequently denied Appellant’s petition on April 23, 2014. Appellant timely

filed a pro se notice of appeal on May 12, 2014. The PCRA court ordered

Appellant on May 21, 2014, to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied

pro se on June 4, 2014.

     Appellant raises the following issues for our review:

        WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR,
        WHICH WAS STRUCTURAL IN NATURE, WHEN IT
        INSTRUCTED THE JURY IN SUCH A WAY THAT THE
        COMMONWEALTH WAS PERMITTED TO OBTAIN A THIRD
        DEGREE MURDER CONVICTION BY PROVING THE
        ELEMENTS OF UNREASONABLE BELIEF SELF-DEFENSE,
        WHICH   IS  CLEARLY,  AND  STATUTORILY,   ONLY
        VOLUNTARY MANSLAUGHTER?

        WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
        ASSISTANCE WHEN [COUNSEL] FAILED TO OBJECT TO
        THE TRIAL COURT’S ERRONEOUS AND MISLEADING JURY
        INSTRUCTIONS WITH REGARD TO THIRD DEGREE

                                    -7-
J-S78010-14


         MURDER AND VOLUNTARY MANSLAUGHTER?

         WHETHER APPOINTED PCRA COUNSEL RENDERED
         INEFFECTIVE ASSISTANCE BY FAILING TO HAVE ANY
         CONTACT    WITH   HIS  CLIENT,  INCLUDING   NOT
         RESPONDING TO CORRESPONDENCE, BY FAILING TO FILE
         A PROPER “NO MERIT” LETTER WHEN COUNSEL MERELY
         REVIEWED THE PRO SE PCRA PETITION AND DID NOT
         CONDUCT A COMPLETE REVIEW OF THE TRIAL RECORD,
         AND BY COMPLETELY IGNORING THE PURPOSE OF PCRA
         REVIEW?

(Appellant’s Brief at 4).

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

examining    whether        the   evidence    of   record     supports    the     court’s

determination    and    whether      its     decision    is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). 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).                We give no such deference,

however, to the court’s legal conclusions.          Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). Further, 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. Wah, 42 A.3d 335, 338

(Pa.Super. 2012).


                                           -8-
J-S78010-14


      In his first and second issues combined, Appellant argues trial counsel

was ineffective for failing to object to the trial court’s jury instruction.

Specifically, Appellant alleges the following jury instructions were in error:

         [T]here can be no malice when certain reducing
         circumstances are present. When these circumstances are
         present, a killing may be voluntary manslaughter but not
         murder. This is true, for example, when a defendant kills
         in the heat of passion following serious provocation or
         when [a] defendant kills a person under the unreasonable
         mistaken belief in justifying circumstances; in other words,
         that a defendant killed a person under an unreasonable
         mistaken belief that he had the right to use self-defense.

         Accordingly, you can find…malice and find [Appellant]
         guilty of murder only if you are satisfied beyond a
         reasonable doubt that [Appellant] was not acting under a
         sudden and intense passion resulting from serious
         provocation by the victim or that he was acting under
         an unreasonable belief that the circumstances were
         such that if they existed would have justified the killing.

(N.T. Trial, 4/17/06-4/20/06, at 613-14) (emphasis added).             Appellant

claims the jury instructions, when read as a whole, were misleading and

caused the jury to find Appellant guilty of third-degree murder rather than

voluntary manslaughter. Appellant avers the jury misinterpreted the court’s

instructions, and there is a substantial possibility the jury rested Appellant’s

third-degree murder conviction on the court’s misleading instructions.

Appellant affirms neither defense counsel objected to the erroneous jury

instructions, which led to Appellant’s conviction for third degree murder, and

a more severe sentence than would have otherwise been imposed.

Appellant also asserts trial counsel could not have had any rational, strategic


                                      -9-
J-S78010-14


basis for failing to object to the jury instructions. Appellant insists a timely

objection would have permitted the court to correct or clarify the jury

charge. Appellant maintains there is a reasonable probability that, but for

trial counsels’ failure to object, the jury would have returned a guilty verdict

for voluntary manslaughter rather than third-degree murder.            Appellant

concludes this Court should reverse the PCRA court’s order and remand for

further proceedings, or, in the alternative, vacate Appellant’s conviction for

third-degree murder and grant him a new trial. We disagree.

      The   law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                When

asserting a claim of ineffective assistance of counsel, the petitioner is

required to demonstrate that: (1) the underlying claim is of arguable merit;

(2) counsel had no 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.

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).                   The

failure to satisfy any prong of the test for ineffectiveness will cause the claim

to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot


                                     - 10 -
J-S78010-14


be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the ‘reasonable basis’
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [an appellant] demonstrates
         that counsel’s chosen course of action had an adverse
         effect on the outcome of the proceedings. The [appellant]
         must show that there is a reasonable probability that, but
         for counsel’s unprofessional errors, the result of the
         proceeding would have been different.             A reasonable
         probability is a probability sufficient to undermine
         confidence in the outcome. In [Kimball, supra], we held
         that a “criminal [appellant] alleging prejudice must show
         that counsel’s errors were so serious as to deprive the
         defendant of a fair trial, a trial whose result is reliable.

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

      “[T]o succeed on an allegation of…counsel’s ineffectiveness…a post-

conviction petitioner must, at a minimum, present argumentation relative to

each layer of ineffective assistance, on all three prongs of the ineffectiveness

standard….”   Commonwealth v. D’Amato, 579 Pa. 490, 500, 856 A.2d

806, 812 (2004) (internal citations omitted).        “[A] petitioner does not

preserve a…claim of ineffectiveness merely by focusing his attention on

whether…counsel was ineffective. Rather, the petitioner must also present

argument as to how the second and third prongs of the Pierce test are met

                                     - 11 -
J-S78010-14


with regard to the…claim.” Commonwealth v. Santiago, 579 Pa. 46, 69,

855 A.2d 682, 696 (2004).      “[A]n undeveloped argument, which fails to

meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy [the petitioner’s] burden of

establishing that he is entitled to any relief.” Commonwealth v. Bracey,

568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).

      A jury charge is erroneous only if the charge as a whole is inadequate,

unclear, or has a tendency to mislead or confuse, rather than clarify, a

material issue. Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super.

2008), appeal denied, 606 Pa. 644, 992 A.2d 885 (2010) (citation omitted).

        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.

        The trial court may use its own form of expression to
        explain difficult legal concepts to the jury, as long as the
        trial court’s instruction accurately conveys the law. A
        verdict will not be set aside if the instructions of the trial
        court, taken as a whole, and in context, accurately set
        forth the applicable law.

Commonwealth v. Jones, 858 A.2d 1198, 1201 (Pa.Super. 2004). “Error

cannot be predicated on isolated excerpts of the charge…it is the general

effect of the charge that controls.”         Id. (quoting Commonwealth v.

Pursell, 555 Pa. 233, 724 A.2d 293, 314 (1999) (quotation marks omitted).

When viewed in its entirety, an isolated misstatement is insignificant where

                                    - 12 -
J-S78010-14


it fails to prejudice the appellant, and the charge is otherwise free of errors.

See Commonwealth v. Mickens, 597 A.2d 1196, 1204-05 (Pa.Super.

1991). Therefore, under these circumstances, an appellant is not entitled to

a new trial. See id. at 1205.

      Instantly, the trial court instructed the jury on the elements of third-

degree murder, including the necessity of proof beyond a reasonable doubt

that Appellant committed the killing with malice. (See N.T. Trial, 4/17/06-

4/20/06, at 611-12.) The court also summarized the distinctions between

murder and manslaughter:

         Murder requires malice. Manslaughter does not.

         First degree murder requires the specific intent to kill.
         Third degree murder is any other murder.

         Voluntary manslaughter is basically an intentional killing
         from which malice is not proven because of passion and
         provocation or because [a] defendant had an unreasonable
         mistaken belief in justifying circumstances such as an
         unreasonable mistaken belief in self-defense.

Id. at 618. When read in context, the court’s instructions as a whole clearly

conveyed only murder requires malice, but voluntary manslaughter does

not. See Baker, supra. One alleged misstatement in thirty-six pages of

jury instructions did not mislead the jury or prejudice Appellant.     See id.;

Mickens, supra.     Therefore, we are unable to conclude the court’s jury

instructions   constitute   reversible   error.      Accordingly,   Appellant’s

ineffectiveness claim lacks arguable merit. See Pierce, supra.

      With regard to Appellant’s third issue, claiming ineffectiveness of PCRA

                                     - 13 -
J-S78010-14


counsel, after a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable James M.

Bucci, we conclude Appellant’s third issue merits no relief. The PCRA court

opinion comprehensively discusses and properly disposes of the question

presented.     (See PCRA Court Opinion at 9) (finding: Appellant failed to

prove any of three prongs for ineffective assistance of counsel claims;

Appellant was unable to demonstrate prejudice because he failed to prove

that, but for PCRA counsel’s acts or omissions, outcome of PCRA petition

would have been different; PCRA counsel followed requirements of PCRA and

accompanying law in filing of “No Merit” letter).2   The record supports the

PCRA court’s decision; therefore, we see no reason to disturb it.      As for

Appellant’s third issue, we affirm on the basis of the PCRA court’s opinion.

Accordingly, we affirm the PCRA court’s order dismissing Appellant’s petition.




____________________________________________


2
  We note two citation matters in the PCRA court’s opinion at page 9. First,
the correct citation for the Pierce case is Commonwealth v. Pierce, 537
Pa. 514, 524, 645 A.2d 189, 194 (1994). Second, Commonwealth v.
Rios, 920 A.2d 790, 799 (Pa. 2007) was overruled on other grounds;
however, the proposition cited is still good law.



                                          - 14 -
J-S78010-14


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2015




                          - 15 -
                                                                                           Circulated 02/06/2015 10:44 AM
i! . . .

       COMMONWEALTH OF PENNSYLVANIA                                : IN THE COURT OF COMMON PLEAS
',",                                                               : BERKS COUNTY, PENNSYLVANIA
"'"'                                                               : CRIMINAL DIVISION
                       v.
                                                                   : CP-06-CR-0001759-2005

       JEFFREY CEPEDA                                              : Assigned to: Judge James M. Bucci


       Alisa Hobart, Esquire,
                      Attorney for the Commonwealth

       Jeffrey Cepeda,
                     Defendant, pro se


       July 21, 2014                                       Memorandum Opini                            J. Bucci, J.


                                               PROCEDURAL HISTORY


               The defendant, Jeffrey Cepeda ("Appellant"), was convicted by ajury of third degree

       murder, two counts of aggravated assault, flreanns not to be carried without a license, and

       possessing the instrument of a crime. He was sentenced to a total period of incarceration of 15 to

       30 years in a state correctional facility.



               On November 30, 2006 Appellant flied a pro se Post Conviction Relief Act ("PCRA")

       petition seeking restoration of his appellate rights, which we granted on July 14, 2008.

       Thereafter Appellant flied a direct appeal nunc pro tunc. On August 9,2009 Appellant's appeal

       was quashed as untimely, and he was directed to file a PCRA petition to restore his direct appeal

       rights. Accordingly, on October 8, 2009, Appellant flied a second PCRA petition, which we

       granted and Appellant again appealedt6       itre Su~ri~r CJ'Jft.      His judgment of sentence was

       affirmed on January 12, 2011 and theJ'jl{\1:l~y~yania\~uure,llle Court denied Appellant's Petition
                                               "HllIU .... .:Ill .{Il:J I;)


                                                            1

                                                                                                                      9;;\
                                                                                    Circulated 02/06/2015 10:44 AM
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:8"      for Allowance of Appeal on August 30, 2011. On August 17, 2013, Appellant filed another pro
'I'"''
'C"
         se, check-the-box motion for post conviction collateral relief. We appointed PCRA counsel,

         Osmer Deming, Esquire, to represent Appellant in the disposition of his PCRA claims. After

         exhaustively reviewing the record and finding no issues of merit, PCRA counsel filed a "No

         Merit" Letter pursuant to Commonwealth v. Finley. 550 A.2d 213 (Pa. Super. 1988) and

         Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). Following an independent review of the

         record, we agreed that Appellant was not entitled to post-conviction relief under the PCRA.

         Accordingly, we dismissed his PCRA petition and the present appeal followed.



                                          FACTUAL BACKGROUND

                Appellant was convicted of third degree murder and related charges in connection with

         the shooting death of 19-year-old Rene Castro, known by some witnesses as "Buzz" (hereinafter

         referred to as "Victim Rene Castro"), in the early morning hours of December 31, 2004. At trial,

         the Commonwealth presented multiple witnesses to the shooting, including Priscilla Rodriguez,

         Robert Cairnes, Crystal Talarico, Erica Nowotarski, Jared Hopgood, Amy Smith, and Omar

         Serrano. All of these witnesses saw the events of December 31, 2004 unfold from various

         vantage points along Perkiomen Avenue in Reading, Berks County, Pennsylvania. They each

         testified to substantially the same facts: that Appellant and Victim Rene Castro were engaged in

         a verbal argument as they walked along Perkiomen Avenue, that Victim Rene Castro walked

         onto a porch, a physical altercation ensued between the men, and Appellant ultimately shot

         Victim Rene Castro three times. None of the witnesses characterized Victim Rene Castro as the

         aggressor in the argument, and no one saw a gun in his hand prior to the shooting. Several

         Commonwealth witnesses testified that they saw Appellant shoot Victim Rene Castro, and that



                                                         2
                                                                                   Circulated 02/06/2015 10:44 AM




:~     eventually Victim Rene Castro produced a gun, but by that time Appellant was already running

       away .

.<)"
'r'
'!i1
t,,~
,~              Commonwealth witness Priscilla Rodriguez testified that, in the very early morning hours
I:tJ

"
I~"    of December 31, 2004, the sounds of an argument in the street caught her attention. See Notes of

       Testimony, Jury Trial, April 17, 2006 to April 20, 2006, (hereinafter NT, Jury Trial, 4117106-

       4120106) at 139-141. Upon looking out her window, she recognized a man she knew as "Buzz"

       (Victim Rene Castro), and saw Appellant shoving Victim Rene Castro as the two men walked on

       Perkiomen Avenue toward 17th Street. See NT, Jury Trial, 4117106-4120106, at p. 142-43. She

       further testified that Appellant ''pushed (Victim Rene Castro) in his face" and then walked away,

       crossing the street. Id at 148. After a further exchange of words and gestures, however,

       Appellant ran back across the street and followed Victim Rene Castro onto the porch. See id at

       151. She then heard the sound of punching, followed by three gun shots, fired in rapid

       succession. See id. at 152-53. She saw Appellant walk away, look back at Victim Rene Castro

       on the porch, and then run away from the scene. See id at 153.



                Similarly, Commonwealth witness Jarod Hopgood, who did not personally know the

       victim but recognized him from the neighborhood, testified that he had been on the phone with

       Priscilla Rodriguez on December 31, 2004 and recalled her telling him that she heard an

       argument in front of her house on Perkiomen Avenue. See id. at 171. Mr. Hopgood lived on the

       same block as Ms. Rodriguez, and his first floor apartment faced the street. See id at 169. He

       went out onto his porch and watched the argument unfolding on the street. See id at 171. Mr.

       Hopgood also noticed two other people in the street or on the sidewalk, but it appeared to him



                                                       3
                                                                                     Circulated 02/06/2015 10:44 AM




:~      that they were not involved in the argument. See id. at 172. He testified:
 "
'f"!
'1'\"
                       Well, I saw - I saw Rene (Victim Rene Castro). He was standing
                       there. And someone was arguing with him. And the person - Rene
                       wasn't saying too much. It was the other person who was yelling
                       at him.

        1d at 173-74. At some point, Victim Rene Castro threw his hands up and walked away, but the

        other person (later identified as Appellant) followed him, continuing to yell. See id. at 175-76.

        Appellant turned and began walking away from Victim Rene Castro, but then there was a yell

        and Appellant ran, specifically he sprinted, back towards the porch where Victim Rene Castro

        was then standing. See id. at 179. "When he started sprinting, I went into the house. I didn't-

        I got a bad feeling." 1d When Mr. Hopgood got inside, one of his friends reported that the men

        had begun to fight. See id. at 180. Wanting to watch the fight, he decided to return to his front

        porch. 1d. Before he made it back outside, however, he heard gunshots. See td at 181-82. He

        saw Appellant standing in front of Victim Rene Castro with his arm extended toward Mr. Castro,

        but did not see a gun. See id. at 182-83. Mr. Hopgood retreated to his apartment a second time,

        but at some point came back outside and saw Victim Rene Castro "slumped in the vestibule" of

        the house where the shooting had taken place. Id. at 184.



               Commonwealth witness Robert Cairnes, who was Jarod Hopgood's roommate at 1621

        Perkiomen Avenue at the time of the shooting, testified that on December 31, 2004 while

        hanging out with friends at home, he heard an argument outside his apartment. NT, Jury Trial,

        4117106-4120106, p. 208. He walked over to a bay window facing Perkiomen Avenue, and

        looked out through the blinds. See id. at 209. He testified to seeing three men walking and

        arguing, coming from the direction of the A-Plus mini market towards his residence. See id at

        210. Mr. Cairnes moved to the vestibule in the front of the apartment building to watch. See id

                                                         4
                                                                                      Circulated 02/06/2015 10:44 AM
·.a.,.;
,~



:re
 ",
          at 210-11. He recognized "Buzz" (Victim Rene Castro), and saw that he was involved in an
.,-
'l""      argument with two other men, who were yelling. See id. at 210-11. Mr. Cairnes testified that

          the argument was loud enough to be heard from inside his apartment. See id. at 213. It appeared

          to him that Appellant was arguing with Victim Rene Castro and that the third man was "just

          tagging along", not participating in the argument. Id at 213. At some point, Mr. Cairnes saw

          Victim Rene Castro cross the street to "Omar's house" (Commonwealth witness Omar Serrano),

          directly across from the witness' house. Id. at 214. He saw Victim Rene Castro knock on the

          window of the house a few times, and then enter the building'S front vestibule. See id. at 215-16.

          Mr. Cairnes then saw Mr. Omar Serrano come out of the residence and stand with Victim Rene

          Castro. See id. at 216. Mr. Cairnes did not see anything in either man's hands prior to the fight

          that ensued, and he did not see Victim Rene Castro hit Appellant at any time. See id. at 217-18.

          He saw Victim Rene Castro reel backward after being hit by Appellant, and stated that Mr.

          Serrano was not a participant in the fight. See id. at 218-19. After Victim Rene Castro was

          knocked back by Appellant's blows, Mr. Cairnes testified that he saw Appellant reach towards

          his waist, and then he heard shots. See id at 219. "I just seen him reach for his waist. And the

          next thing you know three gunshots are fired." Id. at 220. He said the shots were fired while

          Victim Rene Castro was recovering from the blow to the head. See id. at p. 220. Mr. Carines

          then saw Appellant tum and run down the street, and noticed that the other people he had seen

          earlier were also running. See id. at 221-22. Although Mr. Cairnes did not see anything in his

          hand prior to the shooting, he testified that, after being shot, Victim Rene Castro stumbled back

          into the vestibule or hallway, and when he reappeared he had a gun in his hand. See id at 223.

          By the time Victim Rene Castro re-emerged with the weapon, Appellant was already across the

          street and running away. See id. On cross-examination, Mr. Carines reiterated that before he



                                                           5
                                                                                      Circulated 02/06/2015 10:44 AM
 :m.
 ,II:




:8      was shot, he did not see Victim Rene Castro reach for anything. See id. at 233.
',""




'Ii"            Commonwealth witness Crystal Talarico testified that on the night of the shooting, she
,~'"
I~'!r
I~;J
"       had been at 1621 Perkiomen Avenue with Robert Cairnes, Erica Nowotarski, Eddie
';';
'Yl
I~      Schwarnbach, Jarod Hopgood and Phil Reifsnyder when she heard yelling "out front". NT, Jury

        Trial, 4117106-4120106, at 239-240. The entire group went to the front porch, with the exception

        of Phil Reifsnyder who was already sleeping. Id. She saw two people arguing, and also saw two

        other people who did not appear to be involved in the argument. See id. at 242. Like the other

        witnesses, Crystal Talarico did not see a gun in anyone's hand prior to the shooting, however she

        did see Appellant extend his right arm, heard three shots, and simultaneously saw "some kind of

        light go off', which she further described as "like sparks". Id. at 248.



                Commonwealth witness Erica Nowotarski testified that she, too, heard arguing on

        December 21,2004 outside the residence on Perkiomen Avenue, which prompted her to look

        outside where she saw "two guys in the street arguing." NT, Jury Trial, 4117106-4120106 at 266.

        She also noted that there were other people on the street, and observed that Victim Rene Castro

        was wearing a fur-trimmed jacket. See id. at 268. With respect to the argument, Ms. Nowotarski

        testified that it looked to her like Victim Rene Castro did not wish to argue, because, as she

        explained: "Rene was walking away from it. He didn't want anything to do with it." Id. at 269-

        70. She saw Victim Rene Castro walk to a house and knock on the door, and then saw

        Appellant come up on the porch behind Victim Rene Castro and hit him in the head. See id. at

        270-71. Appellant hit Victim Rene Castro on the head as he was walking away. See id. at 276.

        She never saw Victim Rene Castro punch Appellant. See id. at 278. Ms. Notowarski then



                                                         6
                                                                                    Circulated 02/06/2015 10:44 AM


 I~
iN
 ,,'
:B,.    testified that she saw Appellant pull out his gun, hold it out towards Victim Rene Castro, and
r~·'



"-      then she heard three shots. See id at pp. 272-74.

'<I"
'11!'

:~..,          Commonwealth witness Amy Smith, who lived on the sixteen hundred block of
:~
!~      Perkiomen Avenue at the time of the shooting, testified that at 12:49 a.m. on December 31, 2004

        she was watching TV in her first-floor living room when she heard arguing. NT, Jury Trial,

        4117106-4120106 at 331-32. She looked outside and saw two men engaged in an argument, one of

        which was bald and the other of which was wearing a coat with fur around the hood. See id. at

        333-34. She testified that although both men were arguing, the bald one was doing "more

        yelling". 1d at 336. Ms. Smith did not see anything in either of the men's hands. Id She

        indicated that the man with the fur-trimmed hood started walking away first, and that the bald

        man followed him. See id at 337. The men then walked out of her view, and, after

        approximately ten or fifteen minutes, she heard gunshots and called 91 L See id at 337-38.



               Commonwealth witness Omar Serrano testified that on December 31, 2004 he was

        residing at 1622 Perkiomen Avenue in the City of Reading, and that in the early morning hours

        of that day he was watching television in the living room when he heard a knock at his window.

        See NT, Jury Trial, 4117106-4120106 at 359-61. He went to the window to see who it was and

        recognized the victim, Victim Rene Castro. See id at 361. Mr. Serrano opened the front door

        and saw Victim Rene Castro and another individual arguing on the front porch. See id. at 362.

        He identified that other person as Appellant. See id. at 363. Mr. Serrano testified that Appellant

        began to hit Victim Rene Castro on the head, punching him with both hands while Victim Rene

        Castro attempted to shield himself from the blows. See id at 364-66. Mr. Serrano testified that



                                                         7
                                                                               Circulated 02/06/2015 10:44 AM




he could see Victim Rene Castro's hands, and that there was nothing in them. See id. at 364-

366. Mr. Serrano testified that he intervened in the fight, and that Appellant went to the steps

while Victim Rene Castro remained on the porch with him. See id. at 366-367. When asked

what happened next, he stated, Appellant "pulled out a gun and shoot him". Id at 367. He

elaborated a bit, saying that Appellant had pulled a gun from his waist, pointed it at Victim Rene

Castro, and shot him. See id at 367-369. He also testified definitively that Victim Rene Castro

did not have a gun in his hands at the time he was shot. See id. at 369. Mr. Serrano then ran

inside the building to his apartment, and, after a few minutes, called 911. See id at 370.

                                 ISSUES RAISED ON APPEAL

       I. PCRA counsel Osmer Deming was ineffective in his representation of Appellant in
          the disposition of his PCRA Petition;

       2. Trial counsel was ineffective in his representation of Appellant for failing to object to
          the jury instructions relating to third degree murder and manslaughter;

       3. The court erred at trial by giving incorrect jury instructions with respect to third
          degree murder and manslaughter; and

       4. The court erred by failing to conduct an evidentiary hearing on Appellant's PCRA
          petition.


                                           DISCUSSION

       Appellant is appealing the dismissal of his PCRA petition. He first contends that his

court-appointed PCRA counsel, Osmer Deming, Esquire, was ineffective in his representation of

Appellant by:

                misstating the waiver standard with regard to issues raised in the
                pro se PCRA petition; refusing to have any contact, including
                responding to correspondence from petitioner, with his client; not
                filing a proper "no merit" letter where there was no indication that
                counsel's review of the record revealed no other issues that may be
                cognizable on PCRA review, his only focus being on the claims
                raised in the pro se petition; and, counsel misled the court as to the


                                                  8
                                                                               Circulated 02/06/2015 10:44 AM




               [t]he trial court committed plain error, structural in nature, when it
               instructed the jury such that the Commonwealth was permitted to
               obtain a third degree murder conviction by proving the elements of
               unreasonable belief self-defense, which is clearly and statutorily
               only voluntarily manslaughter.


       The jury instructions are reproduced in their entirety as part of the Notes of Testimony.

See NT, Jury Trial, 4117106-4120106, pp. 603-652. In our Notice ofIntent to Dismiss, we

summarized the pertinent portions of the jury instructions at issue. This court instructed the jury

as follows with respect to malice, third degree murder, and voluntary manslaughter:



               Now, before defining each of these crimes I will tell you about
               malice which is an element of murder but is not an element of
               manslaughter. That's what differentiates murder from
               manslaughter, the concept of malice.

               A person who kills must act with malice to be guilty of any degree
               of murder whether first or third degree murder. The word malice
               as I am using it has a special legal meaning. It doesn't mean
               simply hatred, spite, or ill will. Malice is a shorthand way of
               referring to any three different mental states that the law regards as
               being bad enough to make a killing a murder.

               The type of malice differs for each degree of murder. Thus, for
               murder of the first degree a killing is with malice if the perpretrator
               acts with, first, an intent to kill or as we'll explain later, the
               definition - or as I will explain later in my definition of first degree
               murder, the killing is willful, deliberate, and premeditated.

               Now for murder of the third degree a killing is with malice if the
               perpetrator's actions show his wanted (sic) and willful disregard of
               an unjustified and extremely high risk that his conduct would result
               in death or serious bodily injury. In this form of malice the
               Commonwealth need not prove that the perpetrator specifically
               intended to kill the other person.

               The Commonwealth must prove, however, that he took action
               while consciously; that is, knowingly disregarding the most serious
               risk he was creating and that by his disregard of that risk he
               demonstrated his own extreme indifference to the value of human


                                                  10
                                                                              Circulated 02/06/2015 10:44 AM




               life.

              Now, a killing is likewise without malice if the perpetrator acts
              with lawful justification or excuse. Lawful justification or excuse
              not only negates malice but also is a complete defense to any
              charge of criminal homicide whether it's murder or manslaughter.
              I shall say more about this when I charge you on the defense of
              self-defense.

              So again, as a way of introduction the difference between murder
              and manslaughter is the necessary element of malice. In order to
              find the defendant guilty of either first degree murder or third
              degree murder, you must be satisfied beyond a reasonable doubt
              that the Commonwealth - that the Commonwealth has proved
              malice. Malice is not an element of manslaughter.


NT, Jury Trial, 4117106-4120106, at 607-609. We then went on to charge the jury with respect to

third degree murder and manslaughter:

              Third degree murder is any killing with malice that is not first
              degree murder. The defendant has been charged with third degree
              murder. And to fmd the defendant guilty of this offense you must
              find that the following three elements have been proven beyond a
              reasonable doubt: First that Rene Castro, II, is dead; second, that
              the defendant killed him; and third, that the defendant did so with
              malice.

              Again, the word malice has special meaning. It does not mean
              simply hatred, spite, or ill will. Malice is a shorthand way of
              referring to a particular mental state that the law regards as being
              bad enough to make a killing a murder rather than reducing it to
              manslaughter ...

              On the other hand, a killing is without malice if the perpetrator acts
              with lawful justification or excuse such as self defense or under
              circumstance, other circumstances that reduce the killing to
              voluntary manslaughter. And, again, I will explain those other
              circumstances that reduce a killing to manslaughter when I give
              you the definition of manslaughter. ...

              When deciding whether the defendant acted with malice you
              should consider all of the evidence including his words, conduct,
              and the attending circumstances that show his state of mind. If you
              believe that the defendant intentionally used a deadly weapon on a


                                                11
                                                                                 Circulated 02/06/2015 10:44 AM




                vital part of the victim's body you may regard that as an item of
                circumstantial evidence from which you may choose to (sic) that
                that defendant acted with malice.

                So, again, you may find the defendant guilty of third degree
                murder if you are satisfied beyond a reasonable doubt that Rene
                Castro, II, is dead; second, that the defendant killed him; and, third,
                that the defendant did so with malice.

                If you are not satisfied that all three elements have been proven
                beyond a reasonable doubt you must find the defendant not guilty
                of third degree murder.

               Now, let me turn to voluntary manslaughter. As my earlier
                definition of malice indicates, there can be no malice when certain
               reducing circumstances are present. When these circumstances are
               present, a killing may only be voluntary manslaughter but not
               murder. This is true, for example, when a defendant kills in the
               heat of passion following serious provocation or when the
               defendant kills a person under the unreasonable mistaken belief in
               justifYing circumstances; in other words, that a defendant killed a
               person under an unreasonable mistaken belief that he had the right
               to use self-defense.

               Accordingly, you can fmd malice and murder - - accordingly you
               can find malice and find the defendant guilty of murder only ifyou
               are satisfied beyond a reasonable doubt that the defendant was not
               acting under a sudden and intense passion resulting from serious
               provocation by the victim or that he was acting under an
               unreasonable belief that the circumstances were such that if they
               existed would have justified the killing.


NT, Jury Trial, 4/17/06-4/20/06, at 611-614 (emphasis added). As set forth in our Notice of

Intent to Dismiss, contrary to Appellant's assertions, we did not instruct the jury that they could

find Appellant guilty of third degree murder where the evidence showed that Appellant held an

unreasonable belief that self-defense was justified. The jury instructions address unreasonable

self-defense, and clearly state that, where there is a belief that self defense is justified, even

where that belief is unreasonable, this would negate a finding of malice necessary to support a

conviction for murder of any degree.


                                                   12
                                                                               Circulated 02/06/2015 10:44 AM




        Because the jury instructions given at trial accurately distinguished between third degree

murder and voluntary manslaughter, we found that Appellant had failed to raise a cognizable

claim with respect to the jury instructions. Further, the evidence presented by the

Commonwealth clearly supported Appellant's conviction for third degree murder, as previously
                                  1
affirmed by the Superior Court.



        With respect to Appellant's related claim, that trial counsel was ineffective for failing to

object to the jury instructions pertaining to third degree murder discussed above, we submit that

trial counsel could not be ineffective for failing to object to something that was not

objectionable.


                 When asserting ineffective assistance of counsel, (Petitioner) must
                 demonstrate that (1) the underlying claim is of arguable merit; (2)
                 the particular course chosen by counsel did not have any
                 reasonable basis designed to effectuate his client's interests; and
                 (3) counsel's ineffectiveness prejudiced (Petitioner).

Commonwealth v. Cook, 544 Pa. 361, 367, 676 A.2d 639,647 (1996). This is a restatement of

the well-established three-prong test set forth in Pierce, in which the Pennsylvania Supreme

Court adopted the Strickland standard. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.

1987), adopting Strickland v. Washington, 466 U.S. 668, 687 (1984). As discussed in the

preceding section, failure to establish any ofthe three prongs necessarily results in the dismissal

of the claim. Commonwealth v. Basemore, 744 A.2d 717 (Pa. 1999).




1 Superior   Court Docket Number 1904 MDA 2009.
                                                 13
                                                                                         Circulated 02/06/2015 10:44 AM




               We dismissed Appellant's PCRA claims relating to the jury instructions because they
'l""
!~.'   were without any arguable merit. The instructions given were proper, and, therefore, trial

       counsel could not have been ineffective for failing to object to them. Because the claim for

       ineffectiveness is without arguable merit, we did not address the second two prongs of the test in

       our Notice of Intent to Dismiss. Because Appellant failed to show how trial counsel was

       ineffective for failing to object to the jury instructions, it follows that this court did not err in

       dismissing Appellant's PCRA petition on those grounds.



               Lastly, Appellant contends that this court erred in failing to conduct an evidentiary

       hearing on the merits of his PCRA Petition. Pursuant to the Pennsylvania Rules of Criminal

       Procedure, if, after reviewing the petition and the record, the court determines that there are no

       "genuine issues of material fact and that the defendant is not entitled to post-conviction collateral

       relief' then no hearing is required. Pa.R.C.P.907. There is no absolute right to a hearing under

       the PCRA. See Commonwealth v. Granberry, 644 A.2d 204 (pa. SuperJ994). We reviewed the

       entire record and considered Appellant's claims under the PCRA, and determined his claims

       were frivolous and did not entitle him to a hearing.



                                                  CONCLUSION



              Appellant appealed the dismissal of his PCRA Petition. Because we believe the dismissal

       of his PCRA Petition was proper, we respectfully request that his appeal be DENIED.




                                                          14
                                                                                      Circulated 02/06/2015 10:44 AM




!OI                     merits ofthe issues raised in the pro se petition.
-,..
I~~

if"'!


                With respect to PCRA counsel Deming's representation of Appellant, it is well

        established that under Pennsylvania jurisprudence counsel is presumed effective, and Appellant

        bears the burden of proving otherwise. See Commonwealth v. Hall, 701 A.2d 190,200-01 (Pa.

        1997). The test for ineffectiveness consists of three prongs: (1) the claim is of arguable merit;

        (2) counsel had no reasonable basis for his or her actions or inactions, and (3) actual prejudice

        resulted, in that the outcome of the proceedings would have been different but for the actions or

        inactions of counsel. See Commonwealth v. McGill, 832 A.2d 1014,1020 (Pa. 2003) and

        Commonwealth v. Pierce, 786 A.2d 203, 213 (pa. 1987), adopting Strickland v. Washington,

        466 U.S. 668, 687 (1984). Failure to establish any of the three prongs necessarily results in the

        dismissal of the claim. Commonwealth v. Basemore, 744 A.2d 717 (Pa. 1999). To establish the

        prong of prejudice, Defendant must demonstrate that "but for the act or omission in question, the

        outcome of the proceedings would have been different". Commonwealth v. Rios, 920 A.2d 790,

        799 (Pa. 2007). Appellant has not shown any of the three prongs, but specifically has not

        demonstrated prejudice, because he has not established that, but for PCRA Counsel's acts or

        omissions, thy outcome would have been different. This court independently reviewed the

        record, and concurred with PCRA counsel that there were no issues of merit. PCRA counsel

        followed the edicts of the PCRA and the accompanying decisional law in filing his "No Merit"

        Letter, and Appellant has not demonstrated how his PCRA attorney was ineffective.



               Appellant next contends that his trial counsel was ineffective for failing to object to the

        jury instructions on third degree murder, and he also argues that the court erred in giving said

        instructions. According to Appellant:


                                                          9
