J-S42008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
       Appellee

                     v.

SHERROD RICE,

       Appellant                                      No. 1746 EDA 2014


                  Appeal from the PCRA Order June 12, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0400722-2003


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 14, 2016

       Appellant, Sherrod Rice, appeals from the Order entered on June 12,

2014, that denied his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The relevant facts of this case were set forth by a prior panel of this

Court in addressing Appellant’s direct appeal in 2009. This Court, quoting

the trial court, stated as follows:

             The trial court summarized the procedural and factual
       history of this case as follows:

                   [Appellant], Sherrod Rice, went to trial for the
             above-captioned case before this court, and he
             elected to be tried by a jury. This was a retrial of a
             capital case, as the first trial ended on April 4, 2005
             as a hung jury. [Appellant] was re-tried with his two
             co-defendants,     Dyrome        Fuller  and     Robert

*
    Former Justice specially assigned to the Superior Court.
J-S42008-15


          Richardson. The instant trial commenced on January
          19, 2006, with the jury being sworn in and
          [Appellant] being formally arraigned on the charges
          of murder, firearms not to be carried without a
          license, carrying firearms on public streets or public
          property, possessing instruments of crime, criminal
          conspiracy, aggravated assault, and recklessly
          endangering another person. At the time of his
          arraignment before the sworn jury, he pleaded not
          guilty to all of the charges against him.

                 The Commonwealth rested its case against
          [Appellant] on January 31, 2006, after presenting
          witness testimony and forensic evidence. [Appellant]
          offered no testimonial or physical evidence on his
          own behalf, and rested his case after agreeing to a
          final set of evidentiary stipulations.

                The jury rendered its verdict on February 2,
          2006. They found [Appellant] guilty of all charges.
          They returned a verdict of first-degree murder as to
          the general charge of murder for that bill of
          information, and found him guilty of all of the other
          offenses as charged. The trial court had previously
          entered a judgment of acquittal for the charge of
          firearms not to be carried without a license. The
          penalty phase of the trial was continued to February
          6, 2006. On that date, the trial court granted
          [Appellant’s] challenge to the proposed “death
          qualifying aggravating factors”.

                 The formal sentencing hearing for [Appellant]
          was deferred, and a pre-sentence investigation
          report and mental health evaluation were ordered.
          After a review of the facts of this case, [Appellant’s]
          prior record score, and his offense gravity score,
          [Appellant] was sentenced on March 22, 2006. At
          that time, [Appellant] was sentenced to the
          mandatory sentence of life imprisonment for the
          first-degree    murder    conviction.   He    received
          sentences of imprisonment of two and one half years
          to five years for the possessing instruments of crime
          conviction, two and one half to five years’
          imprisonment for firearms not to be carried on public


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          street or public property, ten to twenty years for
          criminal conspiracy, ten to twenty years for
          aggravated assault, and one to two years for
          reckless endangering another person. All of these
          sentences were to run consecutive to the sentence of
          life imprisonment and consecutive to each other.

                 A direct appeal to the Superior Court of
          Pennsylvania followed, and was timely filed.
          However, that appeal was dismissed for previous
          appellate counsel’s failure to file a 1925(b)
          statement. The appeal was reinstated by the
          Superior Court pursuant to a motion by present
          appellate counsel who cited the trial court reporter’s
          failure to provide transcripts as the reason for the
          inability to file a 1925(b) statement. This opinion by
          the trial court is in response to the Pa.R.A.P. 1925(b)
          statement that was ultimately filed by [Appellant] on
          July 11, 2008.

          FACTS:

                On the afternoon of June 29, 2002, three of
          the Commonwealth witnesses in this case, Ronald
          James, Gregory Allen, and Hakim Lane, were
          involved in a confrontation on a residential street in
          Southwest Philadelphia that allegedly centered on
          drug trafficking. There were gunshots fired at that
          time, but no one was hit or injured. After this
          incident, Hakim Lane summoned some of his friends
          from North Philadelphia to retaliate against Ronald
          James.

                 These “Friends” were [Appellant] and his two
          codefendants, and they arrived on the block shortly
          after the first altercation had ended. [Appellant] and
          one of his codefendants were armed with automatic
          handguns, and the second co-defendant came to the
          scene with an assault rifle. The prosecution
          witnesses linked [Appellant] with a nine millimeter
          weapon that he was found with at the time of his
          arrest some months later.




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                  As they entered the block after turning the
           corner, all three of them began firing in an apparent
           attempt to shoot Ronald James. When the shooting
           commenced, there were a number of adults and
           children who were sitting, walking, or playing on the
           block. The Commonwealth offered testimony that
           there were close to forty shots fired that afternoon
           from the three weapons that [Appellant] and co-
           defendants possessed. Car windows were shattered,
           porches were struck, and two people were wounded.
           The decedent, Omain Gullette, was fatally wounded
           as he attempted to run away from the gunfire.
           Another one of the unfortunate bystanders that
           afternoon, Akeem Johnson, was severely injured
           when he suffered gunshot wounds to one of his legs
           as he stepped off his porch to go to the grocery
           store.

                  Eyewitnesses      were     called     by    the
           Commonwealth, and they testified that they saw
           [Appellant] and co-defendants shooting up and down
           the street on the afternoon in question. In addition,
           there was testimonial evidence that detailed the
           defendants’ relationship to each other, the reason
           they were on the block that afternoon, and the
           earlier conflicts that prompted them to arrive there
           with the intent to kill or seriously injure Mr. James.
           None of the three defendants offered any substantive
           evidence to rebut the account of the incident that
           was presented to the jury by the Commonwealth
           witnesses, though they did challenge the credibility
           of the eyewitnesses to this tragic event.

     Trial Court Opinion (T.C.O.), 8/12/08, at 1-5.

Commonwealth v. Rice, 1490 EDA 2006, 981 A.2d 320 (Pa. Super. filed

June 17, 2009) (unpublished memorandum at 1-4).

     The prior panel of this Court affirmed Appellant’s judgment of sentence

in the memorandum cited above on June 17, 2009. On December 18, 2009,

Appellant filed a timely PCRA petition. Barbara McDermott, Esquire, filed a


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counseled and amended PCRA petition on August 31, 2011. Subsequently,

the PCRA court appointed Emily Cherniack, Esquire to represent Appellant,

and Attorney Cherniack filed a supplemental PCRA petition on July 20, 2012,

and a second supplemental PCRA petition on July 11, 2013.       On June 12,

2014, the PCRA court denied Appellant’s PCRA petition.

     Appellant, through Attorney Cherniack, filed a timely appeal from the

PCRA court’s denial of his PCRA petition.   While the appeal was pending,

Appellant filed a pro se letter with this Court challenging Attorney

Cherniack’s effectiveness as counsel. This Court forwarded Appellant’s pro

se letter to Attorney Cherniack pursuant to Commonwealth v. Jette, 23

A.3d 1032, 1044 (Pa. 2011). On June 3, 2015, Attorney Cherniack filed a

document with this Court in which she sought to either withdraw as counsel

or have the case remanded for a hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1998).1    On July 23, 2015, this Court filed an

order denying in part and granting in part Attorney Cherniack’s motion to

withdraw. In the July 23, 2015 order, we stated as follows:

           Appellant, Sherrod Rice, is currently appealing an order
     dismissing a first petition filed under the Post Conviction Relief
     Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. During the pendency of
     the instant appeal, Appellant filed pro se documents assailing,
     inter alia, the effectiveness of Attorney Emily Cherniack, his
     appellate counsel. These documents were forwarded to Attorney
     Cherniack pursuant to Pa.R.A.P. 3304 and Commonwealth v.

1
  In Grazier, our Supreme Court held that where a defendant seeks to
waive his right to counsel, an on-the-record determination should be made
concerning whether that waiver is knowing, intelligent, and voluntary. Id.
at 12-13.


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     Jette, 23 A.3d 1032, 1044 (Pa. 2011). On June 3, 2015, in
     response to Appellant’s pro se pleadings, Attorney Cherniack
     filed the aforementioned Petition to Withdraw as Counsel or in
     the Alternative, Remand for a Grazier Hearing.

           In Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.
     Super. 2003), this Court explained that “[b]efore an attorney
     can be permitted to withdraw from representing a petitioner
     under the PCRA, Pennsylvania law requires counsel to file and
     obtain approval of a ‘no-merit’ letter pursuant to the mandates
     of Turner/Finley.”[2] Id. at 947 (citation omitted). In addition,
     in Grazier, our Supreme Court set forth the requirement that an
     on-the-record inquiry must be conducted to determine whether
     an appellant’s waiver of counsel is knowing, intelligent, and
     voluntary.

            Here, Attorney Cherniack’s petition does not satisfy the
     standards for withdrawal under Turner/Finley. Accordingly, we
     DENY, without prejudice to raise the issue on remand, counsel’s
     petition to withdraw. Moreover, while Appellant has expressed
     his displeasure with present counsel and purported to raise
     issues he desires to have decided by this Court, he has not
     specifically requested to proceed pro se. Nevertheless, given the
     pro se documents already filed by Appellant and Attorney
     Cherniack’s petition, we find it prudent to remand this matter to
     the PCRA Court for further proceedings. Therefore, we GRANT
     counsel’s petition to remand for a hearing.

           At this hearing, the PCRA court shall make the following
     determinations: 1) if Appellant desires to represent himself, the
     PCRA court shall conduct an on-the-record colloquy pursuant to
     Grazier as to whether Appellant may proceed pro se; 2) if
     Appellant does not wish to proceed pro se, the PCRA court shall
     determine whether Attorney Cherniack may be permitted to
     withdraw as counsel; and 3) if the PCRA court permits Attorney
     Cherniack to withdraw, it shall determine if Appellant is entitled
     to the appointment of new counsel. This hearing shall be
     held within thirty days from the filing of this order, and

2
    Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) are
the seminal Pennsylvania cases discussing the requirements counsel must
satisfy in order to withdraw from representing a defendant on collateral
review.


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      the PCRA court shall promptly notify this Court of its
      determination.      Upon notification of the PCRA court’s
      determination, the Superior Court Prothonotary shall establish a
      new briefing schedule.

Order, 7/23/15 (emphasis in original).

      The PCRA court promptly complied with this Court’s directive and held

a Grazier hearing on August 18, 2015.         Following the hearing, the PCRA

court permitted Attorney Cherniack to withdraw, determined that Appellant

did not desire to represent himself, and appointed current counsel, Barnaby

C. Wittels, Esquire. Thereafter, Attorney Wittels filed a brief on Appellant’s

behalf on January 19, 2016, and the Commonwealth filed its brief in

response on June 15, 2016.3 This matter is now ripe for disposition.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      A. Did the PCRA court err in denying PCRA relief where trial
      counsel was ineffective for failing to object to an improper and
      constitutionally incorrect jury instruction on specific intent to kill
      in this first degree murder case?

      B. Did the PCRA Court err in not granting an evidentiary hearing
      so that Appellant could present testimony relative to trial
      counsel’s failure to properly investigate the case?

      C. Did the PCRA Court err in not granting an evidentiary hearing
      so that Appellant could testify that trial counsel did not consult
      with him prior to trial counsel admitting in his opening statement
      to the jury that Appellant was guilty of some of the crimes
      charged?


3
  Appellant and the Commonwealth each petitioned for and were granted
three continuances in this protracted appeal. These six continuances are the
reason for the delay in our disposition of this matter.


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      D. Did the PCRA Court err in not finding trial counsel ineffective
      for failing to object to non-relevant and highly prejudicial
      testimony at trial about drug dealing and Appellant’s role
      therein?

Appellant’s Brief at 8.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).              The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Appellant’s issues on appeal allege ineffective assistance of counsel.

When considering an allegation of ineffective assistance of counsel, we note

that counsel is presumed to have provided effective representation unless

the PCRA petitioner pleads and proves that: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and   (3)    appellant     was    prejudiced    by   counsel’s   action   or    omission.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet

the prejudice prong of the ineffectiveness standard, a defendant must show

that there is a ‘reasonable probability that but for counsel’s unprofessional

errors,     the   result   of    the   proceeding    would   have   been       different.’”

Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of


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ineffective assistance of counsel will fail if the petitioner does not meet any

of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013).     “The burden of proving ineffectiveness rests with Appellant.”

Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).                 Additionally,

the right to an evidentiary hearing on a PCRA petition is not absolute, and

the PCRA court may decline to hold a hearing if the petitioner’s claims are

patently frivolous with no support in either the record or other evidence.

Commonwealth v. Walls, 993 A.2d 289 (Pa. Super. 2010); Pa.R.Crim.P.

907.

       Appellant first argues that trial counsel was ineffective for failing to

object to an improper and incorrect jury instruction regarding the specific

intent to kill. On review, we are constrained to conclude that this issue was

not properly preserved.

       It is well settled that in order to preserve an issue for appellate review,

an appellant must timely file a court-ordered Pa.R.A.P. 1925(b) statement of

errors complained of on appeal, and any issues not raised will be deemed

waived.    Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (re-

affirming the bright-line rule first set forth in Commonwealth v. Lord, 719

A.2d 306 (Pa. 1998)). Here, the Pa.R.A.P. 1925(b) statement that was filed

by prior counsel broadly alleges that “the trial court gave the incorrect jury

instruction on criminal conspiracy, accomplice liability, and first degree

murder.”    Appellant’s Pa.R.A.P. 1925(b), 7/18/14, at ¶5.        This issue, as



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presented to the PCRA court, fails to provide the basis for the challenge,

e.g., ineffective assistance of counsel, and fails to provide a concise error. If

Appellant was purporting to challenge that trial counsel was ineffective for

failing to object to a jury instruction, he provided a vague and imprecise

issue. In other words, all that can be gleaned from the issue as presented in

the Pa.R.A.P. 1925(b) statement is that the trial court allegedly erred in

providing its instruction to the jury on conspiracy, accomplice liability, and

first degree murder. We conclude that this overly broad claim of error fails

to preserve the issue for review. See Commonwealth v. Lemon, 804 A.2d

34, 38 (Pa. Super. 2002) (stating that when an appellant’s Pa.R.A.P.1925(b)

statement is too vague to identify his specific issue, the issue is waived).

Present counsel narrowed Appellant’s issue to an allegation that trial counsel

failed to object to the instruction as to “the specific intent to kill” element

necessary to prove first-degree murder. Appellant’s Brief at 23. However,

as stated above, this finite error was not presented to the PCRA court, and

therefore, we conclude that Appellant’s issue is waived on appeal.

      In the second issue, Appellant avers that the PCRA Court erred in not

holding an evidentiary hearing to allow Appellant to present testimony

regarding trial counsel’s alleged failure to investigate this case. Specifically,

Appellant argues that trial counsel failed to investigate the backgrounds of

Commonwealth witnesses Channa Wright, Tricia Goldberg, Ronald James,




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and Darnell Peace because “much of their testimony was contradictory.”

Appellant’s Brief at 25.

      On review, we point out that this is simply a bald accusation, and it is

not supported by any argument, citation to the record, or citation to relevant

authority.     Accordingly,   we   conclude   that   this   issue   is   waived.

Commonwealth v. Irvin, 134 A.3d 67, 73-74 (Pa. Super. 2016).4

      In his third issue on appeal, Appellant avers that the PCRA court erred

in not holding a hearing “so Appellant could testify that trial counsel did not

consult with him prior to trial counsel admitting in his opening statement to

the jury that Appellant was guilty of some of the crimes charged.”

Appellant’s Brief at 26. We cannot agree.

      At the outset, we note that Appellant had no right to an evidentiary

hearing.

             A PCRA court is only required to hold a hearing where the
      petition, or the Commonwealth’s answer, raises an issue of
      material fact. Pa.R.Crim.P. 909(B)(1)-(2). When there are no
      disputed factual issues, an evidentiary hearing is not required.
      Id.; Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037,
      1042 (1996) (citation omitted). If a PCRA petitioner’s offer of
      proof is insufficient to establish a prima facie case, or his
      allegations are refuted by the existing record, an evidentiary
      hearing is unwarranted. See Commonwealth v. Hutchinson,
      611 Pa. 280, 25 A.3d 277, 320 (2011) (citation omitted);
      Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 17 (2011).

Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014).

4
  Additionally, we point out that there is no assertion or indication in the
brief that the result of the proceedings would have been any different had
counsel investigated these witnesses. Thus, this issue would fail on that
basis as well. Reed, 42 A.3d at 319.


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      The PCRA court comprehensively addressed Appellant’s issue as

follows:

            During his opening statement, defense counsel conceded
      to [Appellant’s] guilt as to “some of the crimes” with which he
      was charged, and asked the jury to “only hold him accountable
      for that which he committed.” (N.T. 1/19/06, pgs. 100-104).
      Defense counsel asserted five times throughout his opening that
      the evidence would show that [Appellant] “never shot” the
      victim, and that he “was not guilty of first-degree murder.” Id.
      Counsel did argue that [Appellant] was present at the scene of
      the crime and brandished a firearm only with the intent to
      confront a drug rival. It was asserted that [Appellant] neither
      knew the decedent, nor had any motive to kill him.5
            5
              Counsel’s strategy was to show that just because
            [Appellant] was present at the crime scene, that fact
            alone did not automatically conclude that he was
            guilty of first-degree murder. [Appellant] was tried
            with two co-defendants all charged with related
            crimes. In addition, a ballistics expert testified at
            trial that projectiles removed from the victim’s body
            indicated that the gunshot wounds were inflicted
            from multiple firearms, none of which matched the
            caliber firearm possessed by [Appellant]. (N.T.
            1/26/06, pgs. 201-208).

            [Appellant] argues that defense counsel had no legal
      authority to employ such a strategy. Specifically, [Appellant]
      argues that, first, that [sic] the right to effective assistance of
      counsel attaches during opening statements as a matter of
      constitutional law under the Sixth Amendment, and second, that
      by [sic] utilizing this concession of guilt tactic without
      [Appellant’s] consent, amounts to per se ineffectiveness of
      counsel. It is asserted that because of counsel’s strategy,
      [Appellant] “suffered prejudice as a result of trial counsel’s
      unilateral concession of guilt.” ([Appellant’s] Supplemental
      Amended Petition, 6/20/12).

             It is well settled that the law presumes that counsel was
      effective at trial and the defendant carries the burden of proving
      ineffectiveness. Commonwealth v. Baker, 614 A.2d 663 (Pa.
      1992). It is the petitioner who bears the burden of proving that


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     (1) the underlying claim has arguable merit, (2) counsel’s
     actions or inaction had no reasonable basis, and, most
     importantly, (3) the petitioner was prejudiced by the act or
     omission to such a degree that but for counsel’s conduct, the
     outcome of the proceedings would have been different.
     Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Strickland v.
     Washington, 466 U.S. 668 (1984). If any of these elements are
     not satisfied, the claim fails. Commonwealth v. Fulton, 830 A.2d
     567 (Pa. 2003). A claim of ineffectiveness of counsel will only be
     granted when the petitioner establishes the counsel’s conduct so
     undermined the truth determining process that no reliable
     verdict could have been rendered. See, 42 Pa.C.S.A. §9543.

           In analyzing ineffectiveness claims, the courts today are
     guided by Strickland, as well as its companion case, United
     States v. Cronic, 466 U.S. 648 (1984) — two United States
     Supreme Court (USSC) decisions that require different methods
     of analyzing attorney ineffectiveness. In analyzing a claim under
     Strickland, the [Appellant] must satisfy each prong of the test,
     including the showing of actual prejudice. Conversely, when
     analyzing counsel’s alleged ineffectiveness under Cronic, an
     analysis is not required, as the prejudice element is already
     presumed.6
          6
              The court in Cronic outlined three specific
          circumstances in which prejudice can be assumed:
          First, a presumption of prejudice is warranted where
          there is a complete denial of counsel during a critical
          stage of trial. Second, prejudice is also presumed
          where counsel “entirely fails to subject the
          prosecution’s case      to   meaningful    adversarial
          testing.” Third, in any case where “although counsel
          is available to assist the accused during trial, the
          likelihood that any lawyer, even a fully competent
          one, could provide effective assistance is so small
          that a presumption of prejudice is appropriate
          without any inquiry.” Under these circumstances,
          prejudice need not be proven, as it can be clearly
          assumed.

           In this case, [Appellant] argues that “Cronic’s per se
     prejudice standard applies,” as he asserts that defense counsel’s
     actions were blatantly prejudicial under the law.



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            In the case of Commonwealth v. Cousin, 888 A.2d 710
     (Pa. 2005), the Pennsylvania Supreme Court held that the
     attorney’s actions of conceding guilt during closing arguments,
     after realizing acquittal of a homicide charge was unrealistic, did
     not amount to inefficiency. The court, using the Strickland/Pierce
     test, found counsel not ineffective and determined that the
     attorneys’ actions did not fall under the Cronic analysis. The
     court’s rationale — the Cronic case “is limited to cases []where
     the magnitude of counsel’s error is such that the verdict is
     almost certain to be unreliable,” and that “attorney’s strategic
     decision to concede guilt during his closing argument was
     qualitatively different from a complete failure to subject the
     state’s case to adversarial testing as contemplated by Cronic.”
     Id.

            Further, in the USSC opinion of Florida v. Nixon, 543 U.S.
     175 (2004), after the trial attorney deposed all the state’s
     witnesses and evaluated the evidence in the case, he determined
     that the defendant’s guilt was not subject to dispute. Faced with
     the inevitability of going to trial, even though his client pled not
     guilty, counsel conceded to the defendant’s guilt during his
     opening statement. In a unanimous opinion, the Court held that
     counsel was not deemed ineffective following a Strickland/Pierce
     analysis, as it determined that counsel’s strategy did not
     automatically render his performance deficient to trigger a
     review under Cronic.7
           7
             The court determined that “if counsel’s strategy,
           given the evidence bearing on the defendant’s guilt,
           satisfies the Strickland standard, that is the end of
           the matter; no tenable claim of ineffective assistance
           would remain.” Nixon at 177.

           In the present case, trial counsel, after fully reviewing the
     case, determined that knowing the evidence against his client,
     there was no possibility of acquittal. Therefore, counsel’s best
     strategic defense was to seek a conviction for a lesser offense
     than first-degree murder. According to the rationale of the
     above-mentioned case law, counsel in the present case cannot
     be found per se ineffective under Cronic.

          Therefore, counsel’s actions in this case must be analyzed
     under the Strickland/Pierce standard; however, [Appellant]
     cannot sustain any of these elements. Counsel did have a


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     reasonable basis for his strategic decision to concede
     [Appellant’s] guilt — the evidence against [Appellant] was
     overwhelming: multiple eyewitnesses (one of whom regularly
     purchased drugs from [Appellant]) and ballistics evidence placed
     [Appellant] at the scene of the crime as the victim was shot
     multiple times. As this court noted in its opinion, trial counsel
     “made a strategic choice not to attempt to make an absurd
     argument that [Appellant] was not present at the crime scene or
     that he did not fire a gun that afternoon, given the
     overwhelming evidence to the contrary.” (Trial Court Opinion,
     pg. 12). Counsel’s strategy was to argue to the jury that
     [Appellant] was at the crime scene firing a weapon, but was not
     firing at the decedent, and most importantly, according to
     ballistics, he did not shoot the deceased. Trial counsel made the
     only sensible and reasonable argument according to the facts of
     this case. [Appellant] was neither prejudiced nor was he
     deprived a fair trial. Additionally, because [Appellant] must
     demonstrate actual prejudice, he failed to prove that but for
     counsel’s conduct, the outcome of the proceedings would have
     been different, as the evidence against [Appellant] was
     overwhelming — he was present at the scene of the crime
     engaged in criminal activity.[]

            [Appellant] also argues that trial counsel made the
     strategic decision to concede guilt without his consent.
     [Appellant] may not have known exactly how counsel was going
     to execute that strategy, but a mutual understanding must be
     assumed in that the decision was the best opportunity to obtain
     a favorable verdict. Further, if [Appellant] disagreed, objected,
     or did not approve of counsel’s strategy, he never voiced any
     concern or objection to the court at any time following opening
     statements. (N.T. 1/19/06, pg. 105).9 Additionally, the Nixon
     court also addressed this issue when it stated that defense
     counsel, as a general matter, “has a duty to discuss potential
     strategies with the defendant..., but when a defendant, informed
     by counsel, neither consents nor objects to the course counsel
     describes as the most promising means to avert a sentence of
     death, counsel is not automatically barred from pursuing that
     course.” Nixon at 178. However, the court in Cousin addressed
     that point and held that the rationale in Nixon cannot be read so
     narrowly as to only be applicable to capital cases. The court in
     Cousin reasoned that the emphasis of Nixon was upon the
     difference between a guilty plea and a reasoned strategy of
     conceding guilt while still preserving all of the defendant’s other


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     rights, rather than on the fact of counsel’s unsuccessful attempts
     to elicit a response from his client after formulating his defense
     strategy. The court went on to explain that Nixon recognized
     that even if counsel concedes guilt during an opening statement,
     the prosecution still must present sufficient evidence to support
     a verdict of guilt beyond a reasonable doubt in spite of counsel’s
     strategy.
           9
             See, Cousin (defense counsel stated that he never
           specifically discussed conceding guilt with the
           defendant, although he maintained that he and his
           client understood that there was no possibility of an
           acquittal. The court, in its rationale stated,
           “...whereas here the attorney apparently conceded
           guilt only upon the tacit understanding that both he
           and his client understood form the state of affairs at
           trial and this comprised the best opportunity to
           attain a favorable verdict.”) at 722.

           In the present case, concerning counsel’s concession of
     guilt during opening statements, the actions were sensible and
     reasonable under the circumstances and that the decision was
     the best opportunity to obtain a favorable verdict in an attempt
     to avoid a first-degree murder conviction. See, Commonwealth
     v. Colavita, 993 A.2d 874 (Pa. 2010) (it is well established that
     “where matters of strategy and tactics are concerned, counsel’s
     assistance is deemed constitutionally effective if he chose a
     particular course that had some reasonable basis designed to
     effectuate his client’s interests”). Counsel’s actions cannot be
     deemed per se prejudicial, and therefore cannot be governed by
     Cronic. Therefore, counsel’s strategy, under a Strickland
     analysis, cannot support a claim of ineffectiveness, as the
     strategy was reasonable and [Appellant] has failed to show
     exactly how he was prejudiced in that but for counsel’s actions,
     the outcome of the trial would have been different. Rather,
     [Appellant] has concentrated on various constitutional concerns,
     rather than attempting to fulfill each of the prongs of Strickland.
     In addition, it is assumed [Appellant] was aware that an
     acquittal was unlikely, and if he objected or disagreed with his
     attorney’s strategy, he never voiced any objection to this court.
     [Appellant] cannot satisfy any claim of attorney error concerning
     this issue. For the reasons stated herein, [Appellant’s] claim
     should be dismissed.



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PCRA Opinion, 9/18/14, at 3-9 (footnotes and emphases in original)

(footnote 8 omitted). We agree with this analysis. Counsel’s strategy was

wholly reasonable under the circumstances presented here, and Appellant

has failed to prove any of the prongs necessary to establish a claim of

ineffective assistance of counsel.

      In his final claim of error, Appellant argues that the PCRA Court erred

in not finding trial counsel ineffective      for   failing to   object to   the

Commonwealth’s references to Appellant’s role in selling drugs.              We

conclude that no relief is due.

      Pursuant to stare decisis and our rules of evidence:

      While evidence of prior bad acts is inadmissible to prove the
      character of a person in order to show conduct in conformity
      therewith, evidence of prior bad acts may be admissible when
      offered to prove some other relevant fact, such as motive,
      opportunity, intent, preparation, plan, knowledge, identity, and
      absence of mistake or accident. Commonwealth v. Sherwood,
      603 Pa. 92, 982 A.2d 483, 497 (2009); Pa.R.E. 404(b)(2)
      (providing that “[e]vidence of other crimes, wrongs, or acts may
      be admitted for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity or
      absence of mistake or accident”).

Commonwealth v. Busanet, 54 A.3d 35, 60 (Pa. 2012).               Moroever, we

note that counsel cannot be deemed ineffective for failing to present a

meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).

      Here the PCRA court addressed Appellant’s argument as follows:

            For the reasons mentioned herein, no claim of
      ineffectiveness can be sustained, as it would have proven
      meritless for defense counsel to object to evidence that was
      properly admitted into the record.


                                     - 17 -
J-S42008-15



            The evidence concerning [Appellant’s] prior drug dealing
     activity and his relationships with his co-defendants was highly
     relevant in establishing [Appellant’s] motive, intent, and identity
     of why he was present at the crime scene firing a weapon.

            It has been well established that where such evidence of
     prior bad acts or crimes offered for some relevant purpose other
     than to show criminal propensity or bas character, such evidence
     is admissible. Commonwealth v. Spotz, 756 A.2d 1139 (Pa.
     2000). Such evidence can be admitted to show, among other
     things, motive, intent, plan, or identity. First, the evidence was
     admitted to prove [Appellant’s] identity, as multiple witnesses
     testified that they purchased drugs from [Appellant] on multiple
     occasions. (N.T. 1/24/06, 139-143; 1/25/06, 86-88). Those
     same witnesses identified [Appellant] as a shooter at the scene
     of the crime. Second, the evidence was also admitted to
     demonstrate [Appellant’s] motive, as [Appellant] was in dispute
     with rival drug dealers who were present at the scene of the
     crime. It was necessary for the jury to know this background
     information, as it was the basis and backdrop for the events that
     transpired at the scene of the crime.

           Therefore, no claim of ineffectiveness can be sustained —
     if counsel had objected to the admission of this relevant and
     properly admitted evidence, the objection would have been
     overruled. As the evidence was properly introduced at trial, it
     was therefore proper for the Commonwealth to utilize that
     evidence during opening statements. In analyzing this claim
     under Pierce /Strickland, counsel cannot be deemed ineffective
     as his failure to object was reasonable under the circumstances,
     and because [Appellant] cannot demonstrate that but for
     counsel’s conduct, the outcome of the proceedings would have
     been different.10 Counsel cannot be deemed ineffective for failing
     to raise a meritless claim. Commonwealth v. Monaco, 869 A.2d
     1026 (Pa. Super. 2005).
           10
              In addition, this court instructed the jury on how
           to specifically and properly use the evidence of prior
           criminal acts. (N.T. 1/23/06, pgs. 119-120; 2/1/06,
           pgs. 33-34). The law presumes that the jury follows
           the instructions of the court. Commonwealth v.
           Chmiel, 889 A.2d 501 (Pa. 2005).



                                   - 18 -
J-S42008-15


PCRA Opinion, 9/18/14, at 10-11 (footnote in original). We agree with the

PCRA court and conclude that this issue is meritless.           References to

Appellant’s illicit drug activity were relevant and necessary to prove

Appellant’s motive, intent, identity, and absence of mistake.

      For the reasons set forth above, we discern no error of law or abuse of

discretion in the PCRA court’s decision. Accordingly, we affirm the order

denying Appellant’s petition for collateral relief.

      Order affirmed.

      Judge Mundy joins this Memorandum.

      Justice Fitzgerald Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2016




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