J-S89030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MICHAEL JAMES

                            Appellant                     No. 142 EDA 2016


                Appeal from the PCRA Order December 10, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0200501-2001
                                          CP-51-CR-0200511-2001


BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                              FILED MARCH 15, 2017

        Michael James appeals from the December 10, 2015 order of the

Philadelphia County Court of Common Pleas denying his petition filed under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.                We

affirm.

        The trial court set forth the factual history of this case as follows:

           At approximately 2:00 a.m., on October 26, 2000, Dai Yun
           Zheng [] and his father Sin Tang Zheng [] were closing
           their restaurant located at 3621 North 22nd Street in the
           City and County of Philadelphia, Pennsylvania, when they
           were approached by Michael James . . . , Steven James,
           and Dennis Wright. Sin Tang Zheng recognized these men
           as customers who frequently came into his store. [James],
           Wright, and Steven James in concert muscled their way
           into the Zheng family restaurant. Sin Tang Zheng noticed
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S89030-16


            that the co-defendant, Steven James, had a gun. After
            pushing their way into the store, [James] and his cohorts
            ultimately forced the Zhengs into the basement where
            they were beaten and tied up. The three men repeatedly
            went throughout the property to look for money and
            continuously asked the Zhengs about the location of the
            money. The entire ordeal lasted approximately fifty (50)
            minutes. Although [James] and his cohorts finally found
            the money, Dai Yun Zheng (the son) was fatally shot and
            killed. Sin Tang Zheng (the father) suffered a critical
            wound to his head. After the shooting, [James] and his
            cohorts fled the restaurant. Sin Tang Zheng crawl[ed]
            upstairs to telephone the police, however, for fear that he
            would not articulate the information correctly because of
            his wounds, and his limited English, he called a friend and
            told the friend to call the police. Sin Tang Zheng passed
            out before the police arrived. Upon the arrival of the
            police, he was transported to Temple University Hospital[.]
            Dai Yun Zheng was found dead at the scene from the fatal
            wound to the head. A couple of days later, officers of the
            Philadelphia Police Department went to the hospital and
            showed Sin Tang Zheng a series of photo arrays which
            included the photos of [James], Dennis Wright, and Steven
            James. He positively identified all three men.

            [James] filed several pre-trial motions to suppress
            including but not limited to identification, physical
            evidence, and statements all of which were denied. On
            October 22, 2003, a jury found [James] guilty of First
            Degree Murder, Attempted Murder, Robbery, Criminal
            Conspiracy to Robbery, and Possessing an Instrument of
            Crime.[1] The Commonwealth had previously filed notice of
            its intention to seek the death penalty. [James]
            successfully litigated a motion to quash the aggravators.
            Thereafter, [James] was sentenced to a mandatory period
            of life in prison without the possibility of parole and to
            consecutive terms of ten (10) years to twenty (20) years
            for Robbery, Conspiracy, and Attempted Murder and two
            and a half (2 ½) years to five (5) years on the PIC all
            consecutive to each other and to the life sentence
____________________________________________


       1
           18 Pa.C.S. §§ 2502, 3701, 903, 907, respectively.



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            imposed. Although appellate counsel was provided to
            Michael James, [James] sought leave and was granted
            permission to proceed pro se.

Tr. Ct. Op., 10/18/04, at 1-3 (footnotes and citations omitted).

       On February 7, 2006, this Court affirmed James’ judgment of

sentence. On August 15, 2006, the Pennsylvania Supreme Court denied his

petition for allowance of appeal. On September 8, 2006, James filed a PCRA

petition and a motion to proceed pro se.         Following an August 8, 2007

Grazier2 hearing, the PCRA court granted James’ motion to proceed pro se.

On December 22, 2008, the PCRA court dismissed James’ PCRA petition

without a hearing.       On December 14, 2009, this Court affirmed the trial

court’s dismissal of James’ claim that trial counsel was ineffective for failing

to object to the admission of the .32-caliber handgun, but remanded for

further proceedings as to James’ remaining claims. We concluded that the

PCRA court had erred in finding James’ remaining ineffective assistance of

counsel claims had been previously litigated.

       On March 24, 2015, James filed an application for leave to file original

process and a petition for writ of mandamus with the Pennsylvania Supreme

Court.     On May 12, 2015, the Supreme Court granted the application for

leave and the petition for mandamus and ordered the common pleas court to

adjudicate the PCRA petition.


____________________________________________


       2
           Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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       On December 10, 2015, the Honorable Lillian H. Ransom3 filed an

opinion in support of the dismissal of James’ PCRA petition.4

       James raises the following issues on appeal:

            I. DID THE COMMON PLEAS COURT ABUSE [ITS]
            DISCRETION BY DENYING [JAMES’] POST CONVICTION
            PETITION STATING THAT THE REASON FOR DENYING THE
            PCRA PETITION WAS THAT TRIAL COUNSEL WAS NOT
            INEFFECTIVE DURING THE APPELLANT’S TRIAL?

            II. DID THE COMMON PLEAS COURT ERR[] WHEN IT
            DELAYED FOR OVER FIVE YEARS FROM THE DATE THE
            SUPERIOR COURT REMANDED THIS CASE BACK TO THE
            COMMON PLEAS COURT FOR ADJUDICATION OF THE I.A.C.
            CLAIMS RAISED BY THE APPELLANT?

            III. DID THE COMMON                PLEAS COURT ABUSE [ITS]
            DISCRETION AND ERR                 BY NOT CONDUCTING AN
            EVIDENTIARY HEARING ?

James’ Brief at 2.

       I.      Ineffective Assistance of Counsel

       In his first issue, James maintains the PCRA court erred when it

dismissed the ineffective assistance of counsel claims raised in his PCRA

petition.    James argues his trial counsel was ineffective for failing to: (1)

object to the trial court’s response to the jury’s question regarding the first-

degree murder elements; (2) object to the trial court’s instruction on

____________________________________________


       3
       Judge Ransom was sworn in as a member of this Court in August
2016, following her appointment to the Court in June 2016. Judge Ransom
was not involved in the review of this appeal.
       4
        The Honorable Renee Cardwell Hughes presided over the trial, but
retired prior to the issuance of the December 10, 2015 Rule 1925(a) opinion.



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accomplice testimony; (3) object to the admission of Sin Tang Zheng’s prior

consistent statement; (4) call James’ grandfather as a witness; (5) object to

the admission of rap lyrics; (6) investigate an alibi defense; (7) file a motion

to sever; (8) object to the assistant district attorney’s reference to Joyce

Wu, M.D. during closing argument; (9) object to the assistant district

attorney’s opening statement; (10) object to the assistant district attorney’s

closing argument; (11) investigate the promises made to Garfield Adams in

exchange for his testimony against James; (12) investigate potential

witnesses and DNA evidence; (13) object when the assistant district

attorney struck young African Americans from the jury; (14) request a

mistrial after Steven James caused a scene in the courtroom; and (15)

object and request a mistrial when the assistant district attorney referenced

Islam and Allah.5

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

examining whether the PCRA court’s determination is supported by the


____________________________________________


       5
         James raised four additional ineffectiveness claims. However, on
appeal, he concedes that, in our December 14, 2009 memorandum, this
Court found that the PCRA court did not err in dismissing James’ ineffective
assistance of counsel claim for failure to object to the introduction of the
.32-caliber revolver. James’ Br. at 9; Memorandum, 116 EDA 2009, at 8-10
(Pa.Super. filed Dec. 14, 2009). Further, on appeal, he abandoned his
counsel ineffectiveness claims for failing to (1) object to a reference to the
assistant district attorney’s wife; (2) object to a jury instruction regarding
Adams’ testimony; and (3) request that the trial be transferred due to media
exposure. James’ Br. at 28-29, 32.



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evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

      For ineffective assistance of counsel claims, the petitioner must

establish: “(1) his underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) the petitioner suffered

actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311

(Pa. 2014) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).

“To demonstrate prejudice, the petitioner must show that ‘there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different.’” Id. at 312 (quoting

Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)).               “[C]ounsel is

presumed to be effective and the burden of demonstrating ineffectiveness

rests on appellant.” Ousley, 21 A.3d at 1244 (quoting Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)). “The failure to prove any

one of the three [ineffectiveness] prongs results in the failure of petitioner’s

claim.” Id. (quoting Rivera, 10 A.3d at 1279).

      First, James argues that his counsel was ineffective for failing to object

to the trial court’s response to the jury’s question regarding the elements of

first-degree murder.   James maintains that counsel should have objected

when the trial court informed the jury, in response to a jury question, that

the Commonwealth did not need to prove which defendant was the shooter.

      After the trial court received a question from the jury, the following

exchange occurred:

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       THE FOREPERSON: They think – they are trying to get the
       clarification of where the difference between the first and
       second.

       THE COURT: Okay, Gentlemen, can you stipulate that I
       can answer that question?

       MR. SAX: Absolutely.

       MR. SIEGEL: Certainly.

       MS. RUDENSTEIN: Yes.

       THE COURT: All right, very good.

       Murder in the first degree. We already know all murders
       involve malice. We already know that second degree
       murder means that there was a felony committed. In my
       case it is a robbery. And, that a murder occurred in the
       course of a robbery.

       First degree murder is a murder in which there was a
       specific intent to kill.

       Premeditation – and premeditation can be instantaneous.
       You can plan it for eight years. But, it is a premeditated
       decision, a specific intent to kill. Period. Okay.

       I mean, that is the critical distinction. To find first degree
       murder, you must find that there was a specific intent to
       kill.

       You may find the specific intent by direct evidence, by
       circumstantial evidence. You may infer specific intent from
       the use of a deadly weapon on a vital organ in the body.

       In order – each one of these defendants is charged with
       murder in the first degree.

       In order to find murder in the first degree, you have to
       examine each person and say: Did that person possess
       the specific intent to kill; yes or no?

       Move to the next person. Did that person possess the
       specific intent to kill; yes or no?

       Move to the third person: Did that person possess the
       specific intent to kill? All right.


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                                           ...

           THE FOREPERSON:         Another thing we have been
           discussing, does that mean we have to prove shooter?

           THE COURT: No.

           THE FOREPERSON: Okay.

N.T., 10/17/03, at 129-31.6           The instructions and answers to the jury’s

question, read as a whole, accurately described the elements of first- and

second-degree murder, including that, although the Commonwealth need

not prove that James was the shooter, it had to establish that James had the

specific intent to kill.     Therefore, counsel cannot be found ineffective for

failing to object. See Commonwealth v. Speight, 854 A.2d 450, 461 (Pa.

2004) (finding counsel not ineffective where the charge given, “[r]ead as a

whole, . . . sufficiently instructed the jury regarding the requirement that an

individual must have specific intent to kill in order to be found guilty of first

degree murder as an accomplice”).              Accordingly, we conclude the PCRA

court’s finding that James’ ineffectiveness claim lacked merit is supported by

the record and free of legal error.

       James next argues that trial counsel was ineffective for failing to

object to the trial court’s instruction regarding accomplice liability.       He

claims the trial court should have instructed the jury that Garfield Adams
____________________________________________


       6
        Further, the trial court gave proper instructions regarding first- and
second-degree murder during the pre-deliberation jury instructions, and
instructed the jury as to conspiracy and accomplice liability. N.T., 10/17/03,
at 49-79.



                                           -8-
J-S89030-16



was an accomplice and, therefore, his testimony was “from a polluted

source, and suspect as to such testimony being reliable.” James’ Br. at 11.

     The Pennsylvania Supreme Court has stated:

        As we explained in Commonwealth v. Chmiel, []639
        A.2d 9, 13 ([Pa.] 1994), “in any case where an accomplice
        implicates the defendant, the judge should tell the jury
        that the accomplice is a corrupt and polluted source whose
        testimony should be viewed with great caution.” See also
        Commonwealth v. Collins, [] 957 A.2d 237 ([Pa.] 2008).
        For an accomplice charge to be required, the facts need to
        permit an inference that the witness was an accomplice.
        Chmiel, 639 A.2d at 13; Commonwealth v. Sisak, []
        259 A.2d 428 ([Pa.] 1969). “If the evidence is sufficient to
        present a jury question with respect to whether the
        prosecution’s witness was an accomplice, the defendant is
        entitled to an instruction as to the weight to be given to
        that witness’s testimony.” Chmiel, 639 A.2d at 13;
        Commonwealth v. Mouzon, [] 318 A.2d 703 ([Pa.]
        1974).

Commonwealth v. Smith, 17 A.3d 873, 906 (Pa. 2011).

     The PCRA court concluded that this claim lacked merit because the

trial court instructed the jury using the standard jury instruction regarding

testimony from an accomplice and, therefore, there was no basis to support

the ineffectiveness claim. Opinion, 12/10/15, at 3 (“1925(a) Op.”).

     The trial court provided the following jury instruction:

        When [a Commonwealth witness] was so involved in the
        crime charged that he was an accomplice, his testimony
        has to be judged by special precautionary rules.

        Experience shows that an accomplice, when caught, will
        often try to blame falsely the crime on someone else. He
        may testify falsely in hope of obtaining favorable treatment
        or for some corrupt or wicked motive.



                                    -9-
J-S89030-16


        On the other hand, an accomplice may be perfectly
        truthful.

        The rules that I give you are to help you determine
        between a truthful accomplice and a false accomplice.

        You must decide first whether Garfield Adams, Jr. was in
        fact an accomplice in the crimes charged. If, after
        considering all of the evidence, you find that he was an
        accomplice, then you must apply these special rules to his
        testimony.

        But, if you determine that Garfield Adams, Jr. was not an
        accomplice in this matter, then you ignore these
        instructions.

        Use this test to determine whether Garfield Adams, Jr. was
        an accomplice. An accomplice may be defined as a person
        who knowingly and voluntarily cooperates with or aids
        another in the commission of a crime.

        Now, with respect to the special rules that apply to what
        we call accomplice testimony, first you should view the
        testimony of an accomplice with disfavor because it
        comes from a corrupt and polluted source.

        Second, you should examine the testimony of the
        accomplice closely and accept it only with care and
        caution.

        Third, you should consider whether the testimony of the
        accomplice is supported in whole or in part by other
        evidence.

        Accomplice testimony is more dependable if it is supported
        by independent evidence.

        However, even if there is no independent evidence
        supporting the testimony, you may still find the defendant
        guilty, solely on the basis of an accomplice’s testimony, if,
        after using the special rules we have discussed, you are
        satisfied beyond a reasonable doubt that the accomplice
        testified truthfully and the defendant is guilty.

N.T., 10/17/03, 39-42 (emphasis added).        The trial court provided the

proper accomplice testimony instruction, including that the testimony is from

                                   - 10 -
J-S89030-16



a corrupt and polluted source.           Further, because there was evidence to

support that Adams was an accomplice, see e.g., N.T., 10/15/03, at 13

(Adams supplied gun to James), and to support that he was not an

accomplice, see, e.g., N.T., 10/16/03, at 14-22 (Adams told defendants he

“wasn’t with it,” was not at the scene, and testified he did not know gun

would be used in robbery), the trial court did not err when it permitted the

jury to determine whether Garfield was an accomplice. See Smith, 17 A.3d

at 906. Because the instruction was proper, counsel was not ineffective for

failing to object to the instruction. Accordingly, the PCRA court did not err

when it found this ineffectiveness claim lacked merit.

       James next maintains counsel was ineffective for failing to object to

the use of Sin Tang Zheng’s prior consistent statement.

       The PCRA Court found that this issue was raised and affirmed on direct

appeal. 1925(a) Op. at 3. On direct appeal, this Court found James waived

his claim that the trial court erred in permitting Officer Han-Chun Kuo to

read Zheng’s prior consistent statement into evidence. Commonwealth v.

James, 61 EDA 2004, unpublished mem. at 13 (Pa.Super. filed Feb. 7,

2006) (“Direct Appeal Mem.”). However, we also concluded that the prior

consistent statement was admissible under Pennsylvania Rule of Evidence

6137 to rehabilitate Zheng because counsel for co-defendant Wright

____________________________________________


       7
           Rule 613(c) provides:

(Footnote Continued Next Page)


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J-S89030-16



previously cross-examined Zheng regarding the statement and Zheng was

asked numerous questions regarding “his identification of the defendants

and memory of events.” Id. at 13 n.5.

      Because the prior consistent statement was admissible, trial counsel

cannot be ineffective for failing to object to its admission, and we conclude

the PCRA court did not err in dismissing this claim.

      James next alleges counsel was ineffective for failing to call his

grandfather as a witness.          He claims his grandfather would have testified

that the .32-caliber revolver found in the residence was owned by his

grandfather and in his grandfather’s control.

      The PCRA court found James’ ineffectiveness claim lacked merit

because he failed to establish the grandfather’s testimony would have

                       _______________________
(Footnote Continued)

          (c) Witness’s Prior Consistent Statement to
          Rehabilitate. Evidence of a witness’s prior consistent
          statement is admissible to rehabilitate the witness’s
          credibility if the opposing party is given an opportunity to
          cross-examine the witness about the statement and the
          statement is offered to rebut an express or implied charge
          of:

          (1) fabrication, bias, improper influence or motive, or
          faulty memory and the statement was made before that
          which has been charged existed or arose; or

          (2) having made a prior inconsistent statement, which the
          witness has denied or explained, and the consistent
          statement supports the witness's denial or explanation.

Pa.R.Evid. 613(c).




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resulted in a different outcome.         1925(a) Op. at 3-4. The court reasoned

that the jury may have used the proposed testimony, that is, that the

revolver belonged to the grandfather and that James resided with the

grandfather, to find James had access to the gun.         Id.   The PCRA court’s

conclusion that James failed to establish prejudice is supported by the record

and free of legal error.

       James next argues that trial counsel was ineffective for failing to

object to the admission of rap lyrics. The PCRA court found that this Court

reviewed and affirmed the admission of the lyrics. 1925(a) Op. at 4. On

direct appeal, we found there was “sufficient circumstantial evidence to

authenticate the rap lyrics as having been written by [James].”           Direct

Appeal Mem. at 22. This Court found that James waived any claim that the

lyrics were inadmissible as irrelevant and prejudicial. To the extent James

now argues his counsel should have objected based on the lyrics’ relevance

and prejudicial value, we conclude that claim lacks merit.       The lyrics were

relevant, as they discussed guns, fear of the police, and “skippin’

countries.”8 N.T., 10/15/03, at 209-13. Further, the lyrics’ probative value

is not outweighed by the danger of unfair prejudice.        See Pa.R.Evid. 403;

Commonwealth v. Flamer, 53 A.3d 82, 89-90 (Pa.Super. 2012) (finding


____________________________________________


       8
        After the crime, James fled to Canada. N.T., 10/10/03, at 230-37;
N.T., 10/14/03, at 35-36, 48-54, 66-72.




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J-S89030-16



probative rap lyrics should have been admitted because they were not

prejudicial and noting “[s]tatements that are on balance prejudicial are

statements that inflame the jury to decide the case on that evidence alone

and not legal propositions”). Accordingly, because the underlying claim that

the lyrics were inadmissible lacked merit, we conclude that James’

ineffectiveness claim is meritless, and the PCRA court did not err in

dismissing it.

      James next argues counsel was ineffective for failing to investigate an

alibi defense. He maintains that he had been in a fight on the night of the

murder with an individual from Scranton and that the blood on his clothes

was that individual’s blood.   He argues that if counsel had contacted the

individual and had a DNA test performed, the test would have established

James was not at the scene of the murder.

      To establish counsel was ineffective for failing to interview a witness, a

PCRA petitioner must show that:

         (i) the witness existed; (ii) the witness was available to
         testify; (iii) counsel knew of, or should have known of, the
         existence of the witness; (iv) the witness was willing to
         testify; and (v) the absence of the testimony was so
         prejudicial as to have denied the defendant a fair trial.

Commonwealth v. Pander, 100 A.3d 626, 639 (Pa.Super. 2014);

Commonwealth v. Brown, 767 A.2d 576, 581-82 (Pa.Super. 2001)

(quoting Commonwealth v. Fletcher, 292, 750 A.2d 261, 275 (Pa. 2000)).

      The PCRA court found that “other than making a bold assertion,

[James] has failed to meet the bare minimum requirements needed to

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establish that such a witness existed, that the witness had anything of

substance about which to testify, that the witness was willing to testify on

[James’] behalf or even that trial counsel knew of the existence of the

witness.”      1925(a) Op. at 4.         The PCRA court noted that at trial, the

Commonwealth and James stipulated that the blood found on James’

clothing was not the blood of either victim. 9,10        Id. at 4-5.   The record

supports the PCRA court’s factual findings and its determination that trial

counsel was not ineffective for failing to investigate the witness is free from

legal error.

       In his next ineffectiveness claim, James argues counsel was ineffective

for failing to argue, in support of the motion for severance, that a joint trial

would violate James’ due process rights because the statement of Steven

James would be admitted and no redaction could make the statement

neutral.

       The PCRA court found that counsel filed a motion to sever, which the

trial court denied and this Court affirmed.        1925(a) Op. at 5. Further, this
____________________________________________


       9
       DNA evidence potentially establishing the blood on James’ clothes
was that of the alibi witness would not preclude James’ participation in the
crime. The parties stipulated that the blood was not the victims’.
       10
         The PCRA court further noted that James asserted he knew the
purported alibi witness because “they had previously engaged in
transactions involving hot merchandise which was exchanged for cheap
prices.” 1925(a) Op. at 4. The PCRA court reasoned that, even if the alibi
witness existed, the witness “may have had 5th Amendment concerns which
may have precluded testimony.” Id.



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Court noted that the motion to sever argued that severance was proper

because “Steve James’ statement was prejudicial and not capable of

redaction so as to prevent harmful inference.”    Direct Appeal Mem. at 17

n.7; see Motion to Sever, 5/1/01. Although the motion did not use the term

“due process,” the argument is the same in the motion and in James’ PCRA

petition – that James could not receive a fair trial because the redacted

statement was unfairly prejudicial. Counsel cannot be ineffective for failing

to raise an argument that he raised before the trial court. Accordingly, we

conclude the PCRA court did not err in dismissing the claim.

     James next argues that counsel was ineffective for failing to object to

the assistant district attorney’s reference to Joyce Wu, M.D., in the closing

argument where Dr. Wu did not testify at trial.

     The PCRA court found the ineffectiveness claim failed because this

Court found on direct appeal that this issue was waived and, even if not

waived, it lacked merit.    1925(a) Op. at 5. On appeal, we found any

objection would have lacked merit because the Commonwealth was

responding to arguments made by James and his co-defendant that the

Commonwealth did not call certain witnesses. Direct Appeal Mem. at 23 n.8

(citing N.T., 10/16/03, at 93-94, 175, 232).      This Court noted that the

assistant district attorney “merely pointed out that the defense also had the

right to subpoena witnesses, and if they wanted to hear her testimony, they

should have called her.” Id. (citing N.T., 10/16/03, at 232).




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      Because the assistant district attorney’s reference to Dr. Wu was

proper, we conclude that counsel was not ineffective for failing to object to

the reference and that the PCRA court’s determination to dismiss this claim

was free of legal error.

      In his next two ineffectiveness claims, James contends trial counsel

was ineffective for failing to object to the assistant district attorney’s

opening statement and closing argument. He argues the opening statement

was improper because the assistant district attorney referenced Steven

James’ redacted statement and said Steven stated that he and two others

were involved. He also argues that the references to James’ rap lyrics and

to James’ statement that “I shot them Chinese” during the closing argument

were improper.

      The PCRA court found that James’ Rule 1925(b) statement was too

vague regarding these claims and it, therefore, could not address them.

1925(a) Op. at 5-6.        Neither James’ PCRA petition nor his Rule 1925(b)

statement include the specific references contained in the appellate brief

and, therefore, James has waived his challenges to the opening statement

and closing argument.       See Commonwealth v. Reeves, 907 A.2d 1, 2

(Pa.Super.   2006)   (finding    claim    waived   where   vague   Rule   1925(b)

statement hampered appellate review).

      Further, even if James had not waived these challenges, we would

conclude that they lack merit.     This Court found on direct appeal that the

trial court properly admitted the redacted statement. Direct Appeal Mem. at

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16-20.    Further, as discussed above, the trial court properly admitted the

rap lyrics.   In addition, the assistant district attorney properly referenced

James’ statement to Adams that he “shot the Chinese people,” N.T.,

10/15/03, at 27, which also was properly admitted.             Accordingly, because

the evidence properly was admitted at trial, the assistant district attorney’s

references to the evidence during his opening statement and closing

argument were proper, and trial counsel was not ineffective for failing to

object.

      James next contends counsel was ineffective for failing to investigate

the promises that the Commonwealth made to Garfield Adams in exchange

for his testimony.

      The PCRA court found this claim lacked merit because counsel

questioned Adams about his agreement with the Commonwealth. 1925(a)

Op. at 6.     At trial, Adams testified regarding his agreement with the

Commonwealth, including that he may receive a sentence of time served.

N.T., 10/15/03, at 31.       Further James’ counsel cross-examined Adams

regarding his guilty plea agreement and upcoming sentencing hearing. Id.

at 71-74.     Accordingly, we conclude that the record supports the PCRA

Court’s findings, and its conclusion is free of legal error.

      James next argues counsel was ineffective for failing to investigate

potential witnesses and DNA evidence. James again argues counsel failed to

interview the potential alibi witness from Scranton and failed to seek DNA

testing of the alibi witness’s blood.   James further maintains that the alibi

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witness could have provided contact information for an additional witness.

As discussed above, the PCRA court’s conclusion that counsel was not

ineffective for failing to investigate the alibi witness is supported by the

record and free of legal error.

       James next contends counsel was ineffective for failing to object when

the assistant district attorney improperly struck young African American

males from the jury.

       To state a Batson11 claim in the context of an ineffective assistance of

counsel claim, the appellant must “make an adequate record specifically

identifying the race of all the venirepersons who had been removed by the

prosecution, the race of the jurors who served, or the race of jurors

acceptable to the Commonwealth who had been stricken by the defense.”

Commonwealth v. Simpson, 66 A.3d 253, 262 (Pa. 2013) (quoting

Commonwealth v. Spence, 627 A.2d 1176, 1182-83 (Pa. 1993)).

       The PCRA court found James failed to state a cognizable claim because

“[t]here is no basis or documentation to support the allegation young African

Americans were actually in the jury pool and there was nothing to support

the claim that, if in the jury pool, members of this protected class were

stricken in a racially discriminatory manner.” 1925(a) Op. at 6-7. The PCRA

Court concluded there was no support for the claim that trial counsel was

____________________________________________


       11
            Batson v. Kentucky, 476 U.S. 79 (1986).




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ineffective.12    Id. at 7.    We conclude that the record supports the PCRA

court’s factual findings and its conclusion is free from legal error.

       James next contends that counsel was ineffective for failing to seek a

mistrial after Steven James caused a scene in the courtroom.

       The PCRA court concluded:

            While it is true that one of the co-defendants (James)
            created a disturbance during the trial, the Court took a
            recess after excusing the jury from the room. When the
            jury returned, the trial judge gave a strongly worded
            instruction to the jurors that they were to disregard the
            outburst by the co-defendant and not to hold that outburst
            against either of the co-defendants. The attorney for the
            co-defendant moved the Trial Court for a mistrial which
            was     denied    by    that  Court,    in  its    discretion.
            Commonwealth v. Parker, 957 A.2d 311, 319
            (Pa.Super. 2008). There would have been no merit for
            trial counsel to join in the motion for a mistrial, therefore
            this claim fails.

1925(a) Op. at 7-8 (internal citations to record omitted).              The record

supports the PCRA court’s factual findings and its conclusion that counsel

was not ineffective is free of legal error.

       James also contends counsel was ineffective for failing to object to the

assistant district attorney’s references to Islam and Allah.

       The PCRA court found that James:

____________________________________________


       12
         Further, counsel objected at the time of jury selection, and the trial
court overruled the objection. N.T., 10/3/03, at 95-104 (co-defendant
raised Batson objection, Commonwealth responded, and trial court found no
violation); id. at 18 (trial court noted issues preserved during jury selection
are relevant for each individual appeal).



                                          - 20 -
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            [F]ailed to provide specific cites to what he claims to be
            improper references to Islam and Allah during the trial. He
            has also failed to set forth any basis to support his
            assertion that this undeveloped claim resulted in any
            prejudice to him therefore, this Court is unable to
            formulate a response and deems the claim to be without
            merit.

1925(a) Op. at 8.13 The record supports the PCRA court’s findings and its

conclusions are free from legal error.

       II.     Delay

       In his second issue, James maintains the PCRA court erred because it

did not issue an opinion until more than five years after this Court remanded

for further proceedings. Although the PCRA court should have acted more

quickly in addressing the PCRA petition following remand, the delay did not

result in harm to James, and James is not entitled to relief.

       III. PCRA Hearing

       In his third issue, James argues the PCRA court erred in dismissing his

petition without a hearing.

       A PCRA court must hold a hearing only “where the petition, or the

Commonwealth’s answer, raises an issue of material fact.” Commonwealth

v. Eichinger, 108 A.3d 821, 849 (Pa. 2014). “If a PCRA petitioner’s offer of

proof is insufficient to establish a prima facie case, or his allegations are
____________________________________________


       13
        In his brief, James states that the references to Islam and Allah
were in his rap lyrics. However, as discussed above, the rap lyrics were
admissible. Further, the references to Islam and Allah were not prejudicial,
as they would not “inflame the jury to decide the case on that evidence
alone and not legal propositions.” See Flamer, 53 A.3d at 89-90.



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refuted by the existing record, an evidentiary hearing is unwarranted.” Id.

“A PCRA court’s decision denying a claim without a hearing may only be

reversed upon a finding of an abuse of discretion.”    Commonwealth v.

Walker, 36 A.3d 1, 17 (Pa. 2011).

     Here, the trial counsel ineffectiveness claims raised in James’ PCRA

petition are refuted by the existing record. Accordingly, the PCRA court did

not abuse its discretion by dismissing of the claims without a hearing. See

Eichinger, 108 A.3d at 849.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2017




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