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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DUANE BEDFORD,

                        Appellant                  No. 3528 EDA 2014


             Appeal from the PCRA Order November 14, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0015137-2007


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED MARCH 23, 2016

     Duane Bedford (“Appellant”) appeals the order denying his petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.§§ 9541–

9546. We affirm.

     We summarize the facts of this case as follows:    Appellant and Sam

Brown (“the victim”) lived on the same block in Southwest Philadelphia.

N.T., 8/18/08, at 6, 8–9. Appellant had performed contracting work for the

victim but a financial dispute arose between them. Id. at 43; N.T., 8/20/08,

at 62–63; 127–129.      On May 26, 2006, the victim discovered that the

windows of his car had been smashed.      N.T., 8/18/08, at 13–14.   In the

early morning hours of May 28, 2006, the victim confronted Appellant about

the vandalism. Id. at 73–74. During the confrontation, Appellant withdrew

a gun concealed in his waistband and fired three shots at the victim. Id. at
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76, 125; N.T., 8/20/08, at 79, 86. One of the bullets entered the victim’s

jaw and pierced his brain, killing him; the other passed through his left leg.

N.T., 8/19/08, at 61–65.    Appellant fled and eluded police until June 30,

2007, when he was profiled on an episode of the television program,

AMERICA’S MOST WANTED.     Id. at 111.    Based on tips received after the

program, the police focused their investigation in York, Pennsylvania.    Id.

Appellant was arrested on July 5, 2007, when York City police officers found

him hiding in a basement with a new appearance and a new name, “Craig

Wallace.” Id. at 111–112; N.T., 8/20/08, at 5–11.

     Appellant was charged with first degree murder and possession of an

instrument of crime (“PIC”).   He proceeded to a jury trial on August 14,

2008. Following the Commonwealth’s case in chief, Appellant testified that

he acted in self-defense after the victim attacked him. N.T., 8/20/08, at 85–

86. On August 22, 2008, the jury found Appellant guilty of both charges.

N.T., 8/22/08, at 11.   The trial court sentenced Appellant to life in prison

without the possibility of parole on the murder charge and a concurrent

sentence of two and one-half to five years on the PIC charge.          Order,

10/28/08.   Appellant filed a post-sentence motion, which the trial court

denied. Post-Sentence Motion, 11/4/08; Order, 12/05/08. Appellant filed a

notice of appeal to this Court. Notice of Appeal, 12/31/08.

     On appeal, a panel of this Court reversed Appellant’s judgment of

sentence and remanded for a new trial, having determined that the trial


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court committed an evidentiary error.       Commonwealth v. Bedford, 142

EDA 2009 (Pa. Super. filed August 11, 2011) (unpublished memorandum).

The Commonwealth successfully applied for en banc reconsideration of the

panel’s decision.   Order, 10/20/11.    The Superior Court en banc affirmed

Appellant’s judgment of sentence, and the Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Bedford, 50 A.3d 707

(Pa. Super. 2012), appeal denied, 57 A.3d 65 (Pa. 2012).

      Appellant filed a PCRA petition on November 25, 2013, alleging

ineffective assistance of counsel. The PCRA court denied the petition without

a hearing on November 14, 2014. This appeal followed. Appellant and the

PCRA court have complied with Pa.R.A.P. 1925.

      Appellant raises the following questions for our consideration:

      I.     Whether the PCRA court erred when it found trial counsel
             effective even though a panel of this Court found that trial
             counsel was not?

      II.    Whether the PCRA court erred when it found trial counsel
             was effective when it was eviden[t] that he failed to
             conduct a reasonable pretrial investigation which would
             have revealed the decedent’s criminal record, which would
             have tipped the scales in favor of Appellant’s claim of self-
             defense, and a reasonable probability of a different
             outcome?

      III.   Whether the PCRA court erred with it found no due process
             violation when the state failed to inform the defense about
             the victim’s prior violent criminal history and compounded
             the violation by eliciting testimony from a police officer
             intended to leave the jury with the false impression that
             [the victim] was a peaceful, meek person when the
             prosecution knew otherwise?


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       IV.    Whether the PCRA court erred when if found trial counsel
              effective despite his failure to request certain essential jury
              instructions in a case of self-defense?

       V.     Whether the PCRA court erred when it failed to consider
              the claims of ineffective assistance in the aggregate?

       VI.    Whether the PCRA court erred when it failed to hold an
              evidentiary hearing on the claims of ineffective assistance
              of counsel?

Appellant’s Brief at 2 (full capitalization omitted; renumbered).1

       Our standard of review of a trial court order granting or denying relief

under the PCRA requires us to determine whether the decision of the PCRA

court is supported by the evidence of record and is free of legal error.

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).                     “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

       To obtain collateral relief, a PCRA petitioner must establish by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2).

Instantly, Appellant asserted in his PCRA petition ineffective assistance of

____________________________________________


1
    The Commonwealth states, “In his PCRA petition, [Appellant] asserted
other claims of ineffective assistance of counsel. He does not mention them
in his appellate brief, and therefore has abandoned them.                See
Commonwealth v. Bennett, 517 A.2d 1248, 1250 n.4 (Pa. 1986) (issues
raised in PCRA petition and not presented on appeal are deemed
abandoned).” Commonwealth’s Brief at 16 n.7. We agree.



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counsel (“IAC”) pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).      PCRA Petition,

11/25/13, at ¶ 6.

     The law presumes that counsel was effective.       Commonwealth v.

Montalvo, 114 A.3d 401, 410 (Pa. 2015).         Hence, it is the petitioner’s

burden to prove the contrary. Commonwealth v. Koehler, 36 A.3d 121,

132 (Pa. 2012).     To plead and prove an IAC claim, a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel’s act or failure to act. Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness

will be denied if the petitioner’s evidence fails to meet any one of these

prongs.    Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

Moreover, the PCRA court’s credibility determinations, when supported by

the record, are binding on this Court. Commonwealth v. Spotz, 18 A.3d

244, 259 (Pa. 2011).

     Appellant first complains that the PCRA court erred in finding trial

counsel effective regarding the Commonwealth’s proffer of character

evidence, whereas a panel of this Court found that trial counsel was

ineffective. Appellant’s Brief at 10. Appellant explains that, in rebuttal to

his self-defense testimony, the Commonwealth presented testimony from

Police Sergeant Sean Butts regarding the victim’s “peaceable nature.”    Id.

Appellant continues:


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      Defense counsel objected to this testimony solely on the grounds
      of relevance.      The trial court overruled the objection and
      permitted Sgt. Butts to testify. . . Appellant timely appealed and
      a three-judge panel of the PA Superior Court vacated and
      remanded for a new trial on the ground that the trial court erred
      when it allowed Sgt. Butts to give “character evidence not in the
      form of reputation testimony.” The Panel further concluded the
      error was not harmless, primarily because [Appellant] raised
      self-defense, making [the victim’s] reputation for peacefulness a
      critical issue. . . The State sought en banc reconsideration,
      which the Superior Court granted. The Superior Court reversed
      because it claimed the trial attorney objected on the grounds of
      relevancy [sic] and “waived” objection on the grounds of the
      improper admission of character evidence.

Id. at 10–11. Appellant contends that trial counsel was ineffective for failing

to object to Sergeant Butts’ testimony as improper character evidence:

            There was a reasonable probability that if the appropriate
      objection had been made that the outcome of the trial and/or
      the appeal would have been different. Clearly, the outcome
      would have been different on appeal because the original Panel
      found that the admission of the character testimony was not
      harmless error, and it granted a new trial.

Appellant’s Brief at 14.

      In response, the Commonwealth submits that the Superior Court panel

decision is not controlling, having been withdrawn in light of this Court’s

grant of en banc reconsideration. Commonwealth’s Brief at 9. Additionally,

the Commonwealth argues that Appellant has not demonstrated prejudice;

therefore, the PCRA court did not err in finding trial counsel effective. Id.

      Applying the three-prong test for an ineffectiveness claim, the PCRA

court disposed of Appellant’s first issue, in relevant part, as follows:

           Appellant asserts that trial counsel committed a non-
      harmless error by allowing the admission of improper character

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     evidence of Sergeant Butts, a longtime friend of [the victim]. 1
     See 1925(b) Statement at p. 5. Specifically, Appellant asserts
     that trial counsel was ineffective for objecting to Sergeant Butts’
     testimony on [the victim’s] peaceful nature solely on relevance
     grounds. Id. at 3. Appellant states that this relevance objection
     waived any objection on improper character evidence grounds.
     Id. This claim is without merit.
           1
              Sergeant Butts testified that he did not know [the
           victim] to be violent in nature because [the victim]
           was [a] “soft spoken, meek person, and very
           subdued . . . .” (N.T. 8-21-08 at p. 9). Sgt. Butts
           further testified that he did not know [the victim] to
           “engage in any physical altercations” or to carry a
           weapon. (N.T. 8-21-08 at p. 9).

                                * * *

           Appellant failed to show prejudice. With respect to the
     prejudice prong, the appellant must show that there was 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.” Strickland [v. Washington, 466 U.S.
     668, 694 (1984)]; see also Commonwealth v. Wright, 961 A.2d
     119, 148 (Pa. 2008) (prejudice requires that there was a
     reasonable probability that the outcome of the proceeding would
     have been different).

           Additionally, the test for prejudice is “more exacting than
     the test for harmless error.” Commonwealth v. Spotz, 84 A.3d
     294, 315 (Pa. 2014). “The harmless error standard. . .states that
     whenever there is a reasonable possibility that an error might
     have contributed to a conviction, the error is not harmless. Id.
     The harmless error standard places the burden on the
     Commonwealth to show that the error did not contribute to the
     verdict beyond a reasonable doubt. Id. This is a lesser standard
     than the prejudice standard, which requires the appellant to
     show that counsel’s conduct had an actual adverse effect on the
     outcome of the proceedings. Id.

                                * * *




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           It should first be noted that after granting the
     Commonwealth’s request for reargument, the only controlling
     opinion is the Superior Court’s en banc opinion. In that opinion,
     the Superior Court found that an objection to the form of the
     evidence had been waived after the relevance objection.
     Commonwealth v. Bedford, 50 A.3d 707, 715 (Pa. Super. 2012)
     (en banc). However, the Superior Court did not find that the
     representation was ineffective, as trial counsel’s ineffectiveness
     was not on appeal. See id. Furthermore, notwithstanding the
     Superior Court’s subsequent opinion, the harmlessness of the
     error alone is of no consequence. As stated above, the test for
     ineffective assistance of counsel is higher than the harmless
     error standard. Spotz, 84 A.3d at 315.

            To prove that there was a reasonably probability that the
     outcome would have been different, Appellant erroneously relies
     on the Superior Court’s withdrawn August 11, 2011
     memorandum opinion. That opinion reversed the conviction
     because of the introduction of Sergeant Butts’ character
     evidence.2 [Pa.R.A.P. 1925(b) Statement] at p. 4. (quoting
     Commonwealth v. Bedford, 142 EDA 2009 (Pa. Super. 2011)
     (Memorandum, withdrawn October 19, 2011)).            Appellant first
     relies on the fact that the Superior Court’s August 11, 2011
     memorandum opinion found trial counsel’s objection to be “non-
     harmless.” Id. at 4–6. Appellant then relies on the fact that this
     finding was not vacated in the subsequent opinion. Id. at 5.
     Appellant confounds the harmless and prejudice standards.
     Because the harmless error standard is less stringent than . . .
     the prejudice standard, even if the Superior Court had not
     withdrawn its first opinion, a finding of non-harmlessness alone
     is not enough to show prejudice. See Spotz, 84 A.3d at 315.
     Appellant only relies on the finding of non-harmlessness by the
     Superior Court to support a showing of prejudice. As a result
     the threshold for prejudice was not met. Because one prong of
     the ineffective assistance of counsel claim failed, the whole claim
     fails. Therefore, because the August 11, 2011 opinion is non-
     controlling and because no other evidence was offered to
     support a finding of prejudice, this claim is without merit.
           2
              Appellant quotes the Superior Court’s August 11,
           2011 opinion which stated, “given. . .reasonable
           inference that the victim was angry because of
           damage to his car, his reputation for peacefulness
           was a relevant consideration for the jury. Under

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              these circumstances, we cannot find, beyond a
              reasonable     doubt,     that  Sergeant     [Butts’]
              inadmissible testimony could not have contributed to
              the verdict of the jury.” Commonwealth v. Bedford,
              142 EDA 2009 (Pa. Super. 2011) (Memorandum,
              withdrawn October 19, 2011).

PCRA Court Opinion, 5/29/15, at 4–7 (emphasis supplied).

       Upon review, we find support in the record for the PCRA court’s factual

determinations, and we discern no error in its legal conclusion.        Appellant

relies on the analysis set forth in a withdrawn memorandum. Without more,

Appellant has failed to establish prejudice. Appellant is not entitled to relief.

       Next, Appellant challenges the PCRA court’s finding that trial counsel

was effective with regard to investigating and using the victim’s criminal

record to rebut Sergeant Butts’ character evidence. Appellant’s Brief at 21;

Appellant’s Reply Brief at 2.          Appellant asserts that the victim’s simple

assault and reckless endangerment convictions would have bolstered

Appellant’s “claim of self-defense because the prior convictions involved

violence by [the victim].” Id. at 22 (citing Commonwealth v. Amos, 284

A.2d 748 (Pa. 1971)).

       The Commonwealth retorts that, even though the victim had simple-

assault convictions from 1988 and 1997,2 Appellant “again failed to meet his


____________________________________________


2
   According to the Commonwealth, the victim’s criminal record does not
show a conviction for reckless endangerment. Commonwealth’s Brief at 12
n.4.



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burden of proving ineffectiveness.” Commonwealth’s Brief at 12. The PCRA

court agreed:

            This [c]ourt finds that there has been no prejudice suffered
      by Appellant. Despite the fact that Appellant asserts the lack of
      impeachment rises to the level of changing the outcome of this
      case, when viewing all evidence in the totality, there was a
      multitude of evidence rebutting Appellant’s self-defense claim
      presented at trial. Specifically, this included physical evidence
      that made the “self-defense version” of events unlikely3 (N.T.
      8/20/08 at p. 85–86) (Appellant’s version indicated that there
      was a fight where he thought the victim was beating him with a
      gun and he had to fire at close range); 8/14/08 at p. 68 (no gun
      was found on the victim); 8/19/08 at p. 60–68 (no evidence of
      close range gun fire; no evidence of bruising or cuts to the
      victim’s hands, or evidence of a fist fight)). Therefore, because
      Appellant has failed to show how the additional impeachment
      evidence would have changed the outcome of the case, this
      claim is without merit.
             3
                The victim had no swellings or abrasions on his
             hands that would have indicated a fight prior to
             death and he also showed no defensive wounds.

PCRA Court Opinion, 5/29/15, at 8.

      Our review reveals support in the record for the PCRA court’s factual

determinations, and we discern no error in its legal conclusion. In light of

the physical evidence contradicting Appellant’s self-defense theory, Appellant

has failed to demonstrate how rebutting Sergeant Butts’ testimony with the

victim’s criminal record would have changed the outcome of this case. No

relief is due.

      Appellant also raises Sergeant Butts’ testimony and the victim’s

criminal record in the context of prosecutorial misconduct that amounted to

a denial of due process. According to Appellant:

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             The prosecution elicited improper testimony when it asked
       Sergeant Butts to testify as to his personal opinion as to the
       victim’s character.

             The prosecution failed to disclose the victim’s prior record
       of convictions and left the jury with an uncorrected, false
       impression that the victim was a peaceful, meek person when
       the prosecution knew otherwise.

            The prosecutorial misconduct must be considered in the
       aggregate.     The prosecution violated [Appellant’s] 14 th
       Amendment right to due process and his right to due process
       under the Pennsylvania Constitution.

Appellant’s Brief at 29.

       The PCRA court found3 and the Commonwealth argues that Appellant’s

prosecutorial-misconduct challenges were waived.              PCRA Court Opinion,

5/29/15, at 15; Commonwealth’s Brief at 18. We agree and add that this

claim of prosecutorial misconduct is not cognizable under the PCRA.              42

Pa.C.S. § 9543(a)(2).

       To be eligible for post-conviction relief, a petitioner must plead and

prove that his claim has not been previously litigated or waived. 42 Pa.C.S.

§ 9543(a)(3). “[A]n issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.”            42 Pa.C.S. § 9544(b).   Appellant

____________________________________________


3
    The PCRA court opined that several other instances of alleged
prosecutorial misconduct raised in Appellant’s PRCA memorandum of law
have been previously litigated.     PCRA Court Opinion, 5/29/15, at 14.
Appellant has not raised those claims in his brief to this Court.




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could have raised the alleged instances of prosecutorial misconduct at trial.

He did not; therefore, they are waived. Accord Commonwealth v. Bardo,

105 A.3d 678, 714 (Pa. 2014) (holding claims of prosecutorial misconduct

and trial court error waived “as they could have been raised at trial or on

direct appeal and were not”).

      We turn to Appellant’s complaint that the PCRA court erred in finding

trial counsel effective despite counsel’s failure to request certain essential

jury instructions in a case of self-defense.          Appellant’s Brief at 23;

Appellant’s Reply Brief at 9.    Relying on Commonwealth v. Rivera, 983

A.2d 1211, 1221 (Pa. 2009), Appellant specifically cites counsel’s failure to

request “an instruction that the Commonwealth could not disprove self[-

]defense solely on the jury’s disbelief of the defendant’s testimony.”

Appellant’s Brief at 24.    Appellant further states, “There was a reasonable

probability of a different outcome had trial counsel requested these

instructions.    There was no competing version of events.      There was no

evidence refuting Appellant’s version of events.” Id.

      “[W]hen evaluating the propriety of jury instructions, this Court will

look to the instructions as a whole, and not simply [to] isolated portions, to

determine   if   the   instructions   were   improper.”   Commonwealth       v.

Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014) (citation omitted). “The

trial court is free to use its own expressions as long as the concepts at issue

are clearly and accurately presented to the jury.”        Commonwealth v.


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Ballard, 80 A.3d 380, 407 (Pa. 2013) (citation omitted). The instructions

must adequately, accurately, and clearly present the law to the jury and

must be sufficient to guide the jury in its deliberations. Commonwealth v.

Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996).

      A fact-finder is not required to believe the testimony of a defendant

who raises the claim of self-defense. Commonwealth v. Smith, 97 A.3d

782, 786 (Pa. Super. 2014). Appellant is correct, however, that disbelief of

a defendant’s testimony alone will not afford enough affirmative proof to

disprove the claim.   See Commonwealth v. Torres, 766 A.2d 342 (Pa.

2001) (holding there was insufficient evidence to disprove defendant’s self-

defense claim where Commonwealth’s case did not provide evidence of who

the initial aggressor was, or motive for defendant to be initial aggressor).

      Nevertheless,   as   the   Commonwealth     points   out:    “The   quote

[Appellant] takes from [Rivera] was in the context of evaluating the

sufficiency of the evidence, not jury instructions.” Commonwealth’s Brief at

16 n.6 (citing Rivera, 983 A.2d at 1218 n.7 (“Appellant does not challenge

the propriety of the jury charges in this appeal.”)).        Thus, Appellant’s

reliance on Rivera is misplaced.

      Here, the PCRA court concluded that the jury instructions “clearly

conveyed who bore the burden of proof.” PCRA Court Opinion, 5/29/15, at

13 (citing Commonwealth v. Soto, 693 A.2d 226, 230 (Pa. Super. 1997)

(“When reviewing a trial court’s jury instructions, this Court must consider


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the instructions as a whole in order to determine whether the charge

accurately and clearly conveyed the applicable law to the panel.”)).      Upon

review, we agree with the PCRA court that the entire charge adequately,

accurately, and clearly presented the law to the jury and was sufficient to

guide the jury in its deliberations. Jones, 672 A.2d at 1358.

      The trial court instructed the jury regarding the Commonwealth’s

burden of proof in general and self-defense in particular. N.T., 8/21/08, at

86, 106. After instructing the jury on the various elements of justification,

i.e., use of force, reasonable belief, intent to cause harm, provocation,

retreat, id. at 106–111, the trial court concluded:    “If the Commonwealth

proves one of these elements beyond a reasonable doubt, the actions of the

defendant in using deadly force are not justifiable.      If the Commonwealth

fails to prove these elements, the defendant’s action was justified and you

must find him not guilty of the crime.”     Id. at 111.    Thus, the trial court

provided adequate jury instructions regarding the Commonwealth’s burden

to disprove self-defense.

      If trial counsel had requested the additional instruction Appellant

claims he should have, the outcome of the case would not have been

different in light of the sufficient physical evidence disproving Appellant’s

claim that he shot the victim at close range on the porch in self-defense: no

gun on or near the victim, N.T., 8/14/08 at 67–68; no stippling or powder

burns on the victim, N.T., 8/19/08 at 63, 66; no bruising, swelling, or cuts


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on the victim’s hands, id. at 68; no defensive wounds on the victim, id. at

68–69; no blood on the porch or railing, Commonwealth Exhibits C-2, C-6,

C-7. Accord Commonwealth v. Brown, 648 A.2d 1177, 1182 (Pa. 1994)

(“There was more than sufficient evidence to prove every element of the

offense and to disprove the self-defense claim beyond a reasonable doubt.”).

Under these circumstances, we conclude that Appellant’s underlying claim

lacks merit. Accordingly, we decline to hold that trial counsel was ineffective

for failing to assert a meritless claim. Commonwealth v. Roney, 79 A.3d

595, 604 (Pa. 2013). The PCRA Court properly rejected Appellant’s contrary

contention.

       Appellant’s fifth issue suggests the PCRA court erred in not finding that

counsel’s ineffectiveness resulted in cumulative prejudice. Appellant’s Brief

at 24; Appellant’s Reply Brief at 12.          The PCRA court declined “to find a

cumulative effect based on the fact that none of Appellant’s individual claims

warrant[ed] relief.” PCRA Court Opinion, 5/29/15, at 8–9.4

       When post-conviction claims are rejected for lack of merit or arguable

merit, no basis exists for an accumulation claim.            Commonwealth v.

____________________________________________


4
    Although the PCRA court states that it rejected Appellant’s individual
claims as lacking arguable merit, PCRA Court Opinion, 5/29/15, at 8, a
closer reading of its opinion reveals that it rejected Appellant’s
ineffectiveness claims regarding improper character evidence and
impeachment on prejudice grounds. PCRA Court Opinion, 5/29/15, at 5, 8.
The PCRA court rejected Appellant’s ineffectiveness claim regarding the jury
instruction on its merit. Id. at 13.



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Koehler, 36 A.3d 121, 161 (Pa. 2012).             However, “[w]hen the failure of

individual claims is grounded in lack of prejudice . . ., the cumulative

prejudice from those individual claims may properly be assessed.” Id.

      In    the   instant   case,   we   have     rejected   Appellant’s   claims   of

ineffectiveness regarding counsel’s failure to investigate and use the victim’s

criminal record and counsel’s failure to object to improper character

evidence.     We have concluded that these claims, individually, did not

prejudice Appellant. Upon review of the certified record, we hold that these

claims, when considered in the aggregate, did not prejudice Appellant.

Accord Commonwealth v. Busanet, 54 A.3d 35, 75 (Pa. 2012) (holding

claims that did not prejudice the appellant individually, did not prejudice him

when considered in the aggregate).

      Finally, Appellant contends that the PCRA court erred by dismissing his

petition without a hearing.         Appellant’s Brief at 25.       The PCRA court

disagreed. PCRA Court Opinion, 5/29/15, at 15. So do we.

            To obtain reversal of a PCRA court’s summary dismissal of
      a petition, an appellant must show that he raised a genuine
      issue of fact which, if resolved in his favor, would have entitled
      him to relief. The controlling factor in this regard is the status of
      the substantive assertions in the petition. Thus, as to
      ineffectiveness claims in particular, if the record reflects that the
      underlying issue is of no arguable merit or no prejudice resulted,
      no evidentiary hearing is required. For each such claim, we
      review the PCRA court’s action for an abuse of discretion[.]

Commonwealth v. Baumhammers, 92 A.3d 708, 726–727 (Pa. 2014)

(internal citations omitted).


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          Appellant has not alleged any genuine issues of material fact regarding

counsel’s representation that, if resolved in his favor, would entitle him to

relief.     Additionally, Appellant’s prosecutorial-misconduct claims are not

reviewable.      Accordingly, we ascertain no abuse of discretion in the PCRA

court’s dismissal of Appellant’s petition without a hearing.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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