J-S51029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    JOHN N. IN                                 :
                                               :
                                               :   No. 2858 EDA 2017

                  Appeal from the PCRA Order August 18, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004829-2007


BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 23, 2019

        Appellant John N. In appeals from the order denying his timely first

petition under the Post Conviction Relief Act1 (PCRA), after a prior panel of

this Court remanded the matter for an evidentiary hearing.2 Appellant claims

trial counsel was ineffective for: (1) failing to object to the Commonwealth’s

attempt to present Dyshon Marable (Marable) as a witness at trial; (2) failing

to request a cautionary instruction that the jury should not infer Appellant’s

guilt from Marable’s refusal to testify; (3) stipulating that Marable entered into

a guilty plea for the robbery at issue; (4) failing to request a cautionary

instruction that the jury should not infer Appellant’s guilt based on Marable’s

guilty plea; (5) failing to object to testimony about Marable’s post-arrest
____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2 Commonwealth v. In, 3021 EDA 2013 (Pa. Super. filed Oct. 26, 2016)
(unpublished mem.).
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statement to police; and (6) failing to object to comments about Marable

during the Commonwealth’s closing argument. We affirm.

      The prior panel of this Court set forth the relevant facts and procedural

history of this appeal as follows:

      On March 7, 2007, three men entered Vuthary Yun’s house, and
      one of the men pointed a gun at his head. The man with the gun
      pushed Yun into the basement and demanded money and jewelry.
      Yun’s daughter, Dina Khem, who was in her bedroom in the
      basement, called 911 when she heard a man’s voice yelling at her
      father. A few minutes later, when Dina heard police upstairs, she
      exited her room and walked to the basement steps, where she
      observed her father and Appellant at the top of the steps. When
      Dina attempted to speak to her father, Appellant turned to face
      her, pointed the gun at her, and told her to “shut the fuck up.”
      Dina testified that she observed Appellant for approximately two
      minutes before returning to her room. While Yun was being held
      in the basement, co-conspirators Jerry Jean and [Marable] were
      on the second floor, robbing Dina’s younger sister, Christina
      Khem, of her jewelry.

      When Officer Roger Birch arrived outside of the victims’ home, he
      observed Appellant kneeling beside a white Nissan Altima.
      Appellant entered the vehicle and sped eastbound. Officer Birch
      pursued him in his patrol car for approximately one block before
      Appellant crashed the Altima into a house. Appellant exited the
      vehicle and fled on foot before being apprehended by police.
      Police later took Dina to the patrol car in which Appellant was
      being held, and Dina identified him as the gunman who held her
      father in the basement.

      Officer Kevin Cannon observed co-conspirator Jean hiding
      between two parked cars near the white Nissan Altima. Police
      arrested Jean shortly thereafter and found pieces of a latex glove
      in his sweatshirt. Co-conspirator Marable was later found hiding
      in a closet on the second floor of the victims’ home.

      Police recovered a 0.9 mm semi-automatic handgun from the
      driver’s side of the white Nissan Altima. Latex gloves and three
      traffic tickets listing the name Jerry Jean were also recovered from


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     the vehicle. Another handgun and a latex glove were found in a
     shed in the victims’ backyard.[fn2] Later, Yun discovered that sixty
     dollars had been taken from his wallet.

            Jean had hidden in the backyard shed after fleeing from
        [fn2]

        the victims’ house.

     Subsequently, Appellant was charged with burglary, robbery,
     possession of an instrument of crime, criminal conspiracy, and
     violations of the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-
     6127.     The case proceeded to a jury trial, at which the
     Commonwealth sought to present the testimony of Appellant’s co-
     conspirator Marable. On the second day of trial, outside of the
     jury’s presence, Marable indicated to the Commonwealth and the
     trial court that he would not testify against Appellant and, if called
     to the stand, would remain silent.[fn3] Ultimately, the trial court
     held Marable in contempt and sentenced him to six months’
     imprisonment.

        [fn3]Marable’s attorney advised Marable that he did not have
        a Fifth Amendment right against self-incrimination because
        Marable already had pled guilty in this case. Marable’s
        attorney relayed to the trial court that Marable would not
        testify because Marable had received several threats to his
        life and health.

     After Marable exited the courtroom, the Commonwealth informed
     the trial court that it still intended to call him as a witness. The
     Commonwealth anticipated that Marable would remain silent and,
     to identify Marable for the benefit of the jury, it would request
     Sheriff Guess to read Marable’s wristband. The Commonwealth
     also anticipated that it would ask Detective Hopkins to testify
     about the fact that Marable gave a post-arrest statement.[fn4]

            The parties agreed that the content of Marable’s post-
        [fn4]

        arrest statement need not be disclosed to the jury.

     Upon the jury’s return, the Commonwealth called Marable to
     testify. Marable remained silent. Sheriff Guess identified Marable
     by examining Marable’s prison identification card. Marable then
     was escorted from the courtroom. Thereafter, the Commonwealth
     informed the trial court and the jury that it had entered into a
     stipulation with Appellant’s attorney with respect to Marable’s
     guilty plea. Specifically, the Commonwealth noted:

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        There’s been a stipulation by and between counsel that in
        the case of Commonwealth v. Marable, Common Pleas
        Court No. 51-CR-0004827-2007 . . ., before the Honorable
        Judge Byrd, [Marable] pled guilty to three counts of robbery.
        Victims being Vuthary Yun, Dina Khem, and Christina Khem.
        Pled guilty to burglary of the house at 720 Mifflin Street.
        Pled guilty to possession of an instrument of crime, [and]
        conspiracy regarding the incident that happened on March
        7th, 2007. In exchange [for] his guilty plea . . . [Marable]
        was sentenced to a period [of] no less than five [and] no
        more than ten years’ incarceration.

     Trial counsel did not request any cautionary instruction informing
     the jury that it should not infer Appellant’s guilt from Marable’s
     admitted guilt (guilt by association) and refusal to testify.

     The Commonwealth then offered the testimony of Detective
     Hopkins, who testified that Marable gave a post-arrest statement
     after being Mirandized.[fn5, fn6]

        [fn5]   See Miranda v. Arizona, 384 U.S. 436 (1966).

           It appears that Detective Conn likewise testified about
        [fn6]

        Marable providing a post-arrest statement.

     During its closing argument, the Commonwealth stated without
     objection by Appellant’s attorney:

        And you saw [Marable], he wouldn’t even say his name, let
        alone be sworn in. Well, why? He took a plea, he’s serving
        his time. He’s not going to snitch on his buddy, no matter
        what the consequences to him. You saw, you saw the
        attitude he gave everybody including the Judge. Well, that’s
        his boy, I brought him down here. He’s not going to testify
        for the Commonwealth, right?

     On September 15, 2008, the jury found Appellant guilty of
     conspiracy, burglary, two counts of robbery, possession of an
     instrument of crime, and violating Sections 6106 and 6108 of the
     Uniform Firearms Act. Pursuant to Appellant’s motion to sever the
     charge of violating Section 6105 of the Uniform Firearms Act, the
     trial court conducted a separate bench trial and found him guilty
     of that charge. On December 19, 2008, the trial court sentenced

                                     -4-
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     Appellant to an aggregate term of twenty-five to fifty years’
     imprisonment followed by ten years’ probation.

     [O]n July 23, 2010, a panel of this Court affirmed Appellant’s
     judgment of sentence. On January 5, 2011, our Supreme Court
     denied Appellant’s petition for allowance of appeal.

     On July 15, 2011, Appellant pro se filed [his first] PCRA petition.
     The PCRA court appointed counsel, who filed an amended PCRA
     petition on October 4, 2012, raising a number of ineffective
     assistance of counsel claims. Appellant alleged that his trial
     counsel was ineffective for failing to object to the Commonwealth’s
     presentation of Marable as a witness at trial when the
     Commonwealth knew that Marable was not going to testify.
     Specifically, Appellant alleged that Marable’s presentation “was
     only undertaken so as to unfairly prejudice [Appellant] by
     advancing guilt through association.” Appellant alleged that his
     trial counsel was ineffective because he stipulated to Marable’s
     guilty plea arising out of the home invasion robbery at issue here.
     Appellant also alleged trial counsel’s ineffectiveness on the
     grounds that counsel did not object to the detectives’ testimony
     that Marable gave a post-arrest statement. Finally, Appellant
     alleged ineffectiveness because trial counsel did not object to the
     Commonwealth’s remarks during its closing argument.

                                *    *    *

     On September 6, 2013, the PCRA court issued a Pa.R.Crim.P. 907
     notice of its intent to dismiss Appellant’s petition. On September
     18, 2013, Appellant filed a response to the PCRA court’s Rule 907
     notice, raising an ineffectiveness claim against his PCRA counsel.
     On October 11, 2013, the PCRA court dismissed Appellant’s
     petition without a hearing. Appellant timely appealed to this
     Court.

In, 3021 EDA 2013, at 2-7 (record citations omitted).

     The prior panel of this Court vacated the PCRA court’s order and

remanded the matter for an evidentiary hearing, noting:

     [G]iven the complexity of the claims raised and the dearth of a
     record below, we are unable to engage in a meaningful appellate
     review.   Specifically, the PCRA court failed to conduct an


                                    -5-
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      evidentiary hearing on Appellant’s ineffectiveness claims and
      render necessary factual findings. We therefore cannot assess
      trial counsel’s tactical reasons for withholding objections. As a
      result, we must vacate the PCRA court’s order dismissing
      Appellant’s PCRA petition and remand the matter to the PCRA
      court to conduct an evidentiary hearing to address fully the claims
      identified above.

Id. at 9 (footnote omitted).

      Upon remand, the PCRA court conducted an evidentiary hearing on July

7, 2017, and Appellant called his trial counsel as a witness.       Trial counsel

testified as to his reasons for not objecting to the Commonwealth’s

presentation of Marable as a witness, entering into the stipulation regarding

Marable’s guilty plea, failing to request cautionary instructions, failing to

object to the testimony from the police witnesses, and failing to object to the

Commonwealth’s closing argument.          At the conclusion of trial counsel’s

testimony, the PCRA court held the matter under advisement. On August 18,

2017, the PCRA court announced its findings of fact and conclusions of law on

the record and denied Appellant’s PCRA petition.

      Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The PCRA court

filed a responsive opinion, finding that trial counsel “had a reasonable strategic

basis for each of his challenged decisions, all designed to effectuate

[Appellant’s] best interest.” PCRA Ct. Op., 1/9/18, at 10. The court concluded

that trial counsel’s decisions advanced his theory of the case, which was that

Appellant “was not involved in the home invasion and it was committed by

others.” Id.


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      Appellant now raises one issue for our review:

      Trial counsel made a series of objectively unreasonable decisions
      regarding the prosecutor’s attempt to have Dyshon Marable testify
      against [Appellant].       Individually and cumulatively, these
      unreasonable decisions prejudiced [Appellant] because they
      allowed the prosecutor to present and the jury to consider
      irrelevant, inadmissible, and highly prejudicial evidence regarding
      Mr. Marable’s pretrial statement and guilty plea without being
      subjected to cross-examination and without instructing the jury it
      could not consider Mr. Marable’s guilty plea as substantive
      evidence of [Appellant’s] guilt. Had trial counsel lodged timely
      objections there is a reasonable probability the trial court would
      have prohibited the prosecutor from presenting Mr. Marable as a
      Commonwealth witness as well as the other evidence relating to
      his guilty plea and pretrial statement. It would have also struck
      the prosecutor’s impermissible closing arguments relating to Mr.
      Marable’s refusal to testify, statement, and guilty plea. Trial
      counsel did not have a reasonable basis not to make the
      individually and collectively [sic], the introduction and
      consideration of this evidence undermines confidence in the jury’s
      guilty verdicts warranting a new trial and the PCRA court erred
      when it refused to grant a new trial because the record supported
      [Appellant’s] right to a new trial based on trial counsel’s
      ineffectiveness.

Appellant’s Brief at 5 (citations omitted). Although Appellant’s brief lists one

issue, he actually presents six distinct arguments of ineffective assistance of

counsel related to Marable.

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

“whether the PCRA court’s determination is supported by the record and free

of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super.

2014) (quotation marks and citation omitted). “The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the certified

record.”   Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014)


                                     -7-
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(citation omitted).   We review the PCRA court’s legal conclusions de novo.

See Miller, 102 A.3d at 992.

      We    presume     that    the   petitioner’s   counsel    was    effective.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish

a claim of ineffectiveness, a petitioner “must show, by a preponderance of the

evidence, ineffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted).           A

petitioner must establish (1) that the underlying claim has arguable merit; (2)

that counsel lacked a reasonable basis for his action or inaction; and (3) but

for the act or omission in question, the outcome of the proceedings would

have been different. Commonwealth v. Washington, 927 A.2d 586, 594

(Pa. 2007). “A claim of ineffectiveness may be denied by a showing that the

petitioner’s evidence fails to meet any of these prongs.” Id. (citation omitted).

      “The threshold inquiry in ineffectiveness claims is whether the

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

for the assertion of ineffectiveness is of arguable merit[.] Counsel cannot be

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

Commonwealth v. Smith, 167 A.3d 782, 788 (Pa. Super. 2017) (citations

and quotation marks omitted).

      “With regard to the second, reasonable basis prong, we do not question

whether there were other more logical courses of action which counsel could

                                      -8-
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have pursued; rather, we must examine whether counsel’s decisions had any

reasonable basis.”   Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.

2011) (citation and quotation marks omitted).         “We will conclude that

counsel’s chosen strategy lacked a reasonable basis only if [the petitioner]

proves that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.”     Id. (citation and

quotation marks omitted).

      Additionally, “[c]ounsel are not constitutionally required to forward any

and all possible objections at trial, and the decision of when to interrupt

oftentimes is a function of overall defense strategy being brought to bear upon

issues which arise unexpectedly at trial and require split-second decision-

making by counsel.” Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa.

2012) (citation omitted).   “Under some circumstances, trial counsel may

forego objecting to an objectionable remark or seeking a cautionary

instruction on a particular point because objections sometimes highlight the

issue for the jury, and curative instructions always do.”        Id. (citation,

quotation marks, and brackets omitted).

      In his first two arguments, which we address together, Appellant

contends the parties were aware that Marable would remain silent if called to

the witness stand. Appellant’s Brief at 35. Despite Marable’s stated intent,

the Commonwealth called him as a witness. Id. Appellant cites multiple cases

for the proposition that the Commonwealth should not call a witness if it knows

in advance that the witness will remain silent. Id. at 36-50. Appellant asserts

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that this practice prejudices the defendant, because the jury could draw an

adverse inference against the defendant due to the witness’s silence. Id. at

37, 40, 47.

      Appellant insists that in this case, the Commonwealth violated these

principles when it called Marable to the witness stand, and trial counsel should

have objected to the Commonwealth’s decision.         Id. at 50, 54. Appellant

maintains that trial counsel compounded this error by failing to request a

cautionary instruction that the jury should not infer Appellant’s guilt from

Marable’s refusal to testify. Id. at 53.

      Appellant acknowledges that trial counsel provided a strategic reason

for not objecting.     Nevertheless, Appellant argues that trial counsel’s

explanation was constitutionally unreasonable, because an alternative “course

of action offered a potential for success ‘substantially greater’ than placing

Marable on the stand . . . .” Id. at 58. Specifically, Appellant claims that trial

counsel could have called police witnesses to testify about the heights of the

robbery suspects based upon their investigation reports. Id.

      By way of background, we summarize trial counsel’s testimony at the

PCRA evidentiary hearing regarding these claims. Trial counsel indicated that

the Commonwealth wanted to put Marable on the witness stand because he

had provided a statement to police that inculpated himself and Appellant:

      It was [the Commonwealth’s] belief that once Mr. Marable got up,
      whether he testified or not, whether he testified to whatever
      version of events, whatever he said, that at that point [the
      Commonwealth] could introduce the statement he gave on the


                                     - 10 -
J-S51029-18


        Brady/Lively[3] substantive evidence.     [The Commonwealth]
        wanted to get the statement into evidence.

N.T. PCRA Hr’g, 7/7/17, at 14-15.

        In light of Marable’s stated intention not to testify if called as a witness,

trial counsel argued to the trial court that the Commonwealth could not put

Marable’s statement into evidence due to the lack of “an opportunity to cross-

examine a man who hasn’t said anything under oath.” Id. at 15. The trial

court    ultimately   agreed     with   trial      counsel   and   did   not   permit   the

Commonwealth to enter the statement into evidence.

        Despite these circumstances, the Commonwealth insisted on calling

Marable as a witness. Trial counsel did not object, explaining that he wanted

the jury to look at Marable as part of a misidentification defense:

        [Appellant] was identified by at least one, if not two of the
        daughters of the main complaining witness. [Vuthary Yun] did not
        . . . identify [Appellant], but he gave a description of the assailant
        who was in the home with the gun.

        One of the parts of the description was a height, a specific height.
        I wanted Mr. Marable to be able to come into the courtroom so
        that the jury could see . . . his particular height . . . and compare
        it to [Appellant]. I mentioned it on the record . . . . I wanted
        them to see his physical stature.

                                        *      *     *

        It was an identification case. It was a matter of . . . the evidence
        seemed to be pretty clear that there were three individuals inside
        the home. Two were apprehended.

Id. at 18-19.
____________________________________________


3 Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986); Commonwealth v.
Lively, 610 A.2d 7 (Pa. 1992).

                                            - 11 -
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      With respect to his decision not to request a cautionary instruction, trial

counsel testified:

      When I try cases, I generally take the position that I don’t have a
      burden. If something doesn’t hurt my client, why mention it?
      Why keep talking about it? Why keep highlighting it? Why would
      I highlight the fact that he didn’t say anything? It didn’t hurt
      [Appellant]. I will not call attention to it.

N.T. PCRA Hr’g at 33.

      As noted above, the PCRA court determined that trial counsel had a

reasonable basis for implementing this strategy, which was designed to

effectuate Appellant’s best interest. See PCRA Ct. Op. at 10.

      Following our review of the record and Appellant’s arguments, we

discern no basis to disturb the PCRA court’s determination.        To the extent

Appellant suggests that trial counsel should have followed the alternate

strategy of admitting evidence of height through police witnesses, trial counsel

explained that did not want to offer additional police witnesses where

Marable’s appearance in front of the jury served the same purpose. See N.T.

PCRA Hr’g. at 43. On this record, we decline Appellant’s invitation to second-

guess trial counsel’s strategy.    See Chmiel, 30 A.3d at 1127; see also

Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012) (stating that

ineffectiveness claims generally cannot succeed through comparing, in

hindsight, the trial strategy actually employed with alternatives not pursued).

      Similarly, as to trial counsel’s failure to request an instruction cautioning

the jury against drawing an adverse inference from Marable’s silence, the

PCRA court credited trial counsel’s explanation that he did not want to

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highlight Marable’s conduct on the stand. In light of the relevant case law and

applicable standard of review, we conclude that the PCRA court properly

determined that trial counsel provided a reasonable basis for his inaction. See

Koehler, 36 A.3d at 146; Miller, 102 A.3d at 992. Therefore, Appellant’s

first two claims warrant no relief.

      In his third and fourth claims, Appellant asserts that a co-defendant’s

guilty plea “cannot be considered as evidence against the defendant because

the defendant has a right to have his guilt or innocence determined by the

evidence presented against him, not by what has happened with regard to a

criminal prosecution against someone else.” Appellant’s Brief at 59 (citation,

quotation marks, and brackets omitted). “Furthermore, if a co-defendant’s

guilty plea is introduced to the jury, it is incumbent upon trial counsel to

request the trial judge to give adequate and clear cautionary instructions to

the jury to avoid guilt by association as to the defendant being tried.” Id. at

60 (citation and quotation marks omitted).

      Regarding the parties’ stipulation about Marable’s guilty plea, Appellant

insists the Commonwealth wanted this evidence in front of the jury to create

an inference of “guilt by association.”        Id.   Appellant argues that the

stipulation created such an inference, which “destroyed trial counsel’s

misidentification defense by making it more likely than not [Appellant] was

the basement gunman.”         Id.     Appellant claims that trial counsel was

ineffective for entering into the stipulation, trial counsel had no strategic




                                      - 13 -
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reason for failing to request a cautionary instruction, and trial counsel’s

decisions resulted in prejudice to Appellant. Id. at 61.

      Instantly, trial counsel testified about his decision to enter into the

stipulation regarding Marable’s guilty plea as follows:

      The evidence was clear that there was a conspiracy, there was a
      robbery, a burglary. The evidence was also clear that there were
      two other people who were involved, one of which was Jerry Jean,
      because he was caught on scene and that came out in evidence.
      To me, . . . stipulating to the fact that Marable pled to those
      offenses did not inculpate [Appellant] because he was not his only
      co-defendant. The defense was that Jean and Marable were
      involved. The third guy, whoever he was, was not [Appellant].

      Had [Appellant] been the only alleged co-conspirator, that would
      have been a problem. We know there were at least two other
      people. To me, it didn’t prejudice [Appellant] by my stipulating to
      that.

N.T. PCRA Hr’g. at 26-27. Trial counsel also declined to seek a cautionary

instruction about guilt by association, because he did not believe that evidence

of Marable’s guilty plea inculpated Appellant. Id. at 35.

      The PCRA court agreed that the stipulation “was in [Appellant’s] best

interest as it placed blame for this home invasion on other persons who were

not tied to [Appellant] in any manner whatsoever.”          PCRA Ct. Op. at 10.

Likewise, the court determined that trial counsel did not need to request a

cautionary instruction where “nothing in the case tied Marable to [Appellant].”

Id. The PCRA court’s conclusions are sound. See Koehler, 36 A.3d at 146;

Chmiel, 30 A.3d at 1127; Miller, 102 A.3d at 992.




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      In his fifth issue, Appellant complains that two police witnesses,

Detectives Hopkins and Conn, provided testimony about Marable’s post-arrest

statement.      Appellant’s Brief at 62.   Appellant argues that evidence of

Marable’s statement was irrelevant, because he refused to testify.           Id.

Appellant claims the Commonwealth’s sole reason for presenting this

testimony was to allow the jury to infer that Marable’s statement must have

incriminated Appellant. Id.

      Appellant asserts that any competent counsel would have immediately

objected to such testimony, because Appellant could not challenge it through

a cross-examination of Marable. Id. Appellant insists that trial counsel was

ineffective for failing to object, trial counsel did not have a strategic reason

for his inaction, and trial counsel’s failure resulted in prejudice to Appellant.

Id. at 62-63.

      Instantly, the detectives did not describe the contents of Marable’s post-

arrest statement, and the Commonwealth did not enter the statement into

evidence. See N.T. PCRA Hr’g at 36. Nevertheless, PCRA counsel attempted

to get trial counsel to admit that the jury might infer that Marable’s statement

implicated Appellant in light of the Commonwealth’s attempt to have Marable

testify. Trial counsel did not accept PCRA counsel’s reasoning and reiterated,

“As long as the substantive portion of the statement did not come into the

record, . . . the jury is not going to say [Marable] must have said something

about [Appellant].” Id. at 22.




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       As with trial counsel’s decision to stipulate to Marable’s guilty plea, the

PCRA court agreed that the detectives’ testimony advanced Appellant’s theory

that other individuals were responsible for the home invasion:

       [F]ailing to object to the testimony of the detective[s] who stated
       that Marable confessed was in [Appellant’s] best interest. That
       testimony went to [Appellant’s] claim of innocence. Someone with
       whom [Appellant] had no connection confessed. As the content
       of the confession was not admitted, [Appellant] was not
       implicated. Thus, there was no reason to object.

PCRA Ct. Op. at 10. We cannot say that the PCRA court erred in its analysis.

See Koehler, 36 A.3d at 146; Chmiel, 30 A.3d at 1127; Miller, 102 A.3d at

992.

       In his final claim, Appellant contends that the Commonwealth

improperly referenced Marable’s guilty plea and silence during the portion of

its closing argument that we previously quoted.         Appellant’s Brief at 63.

Appellant argues that when viewed in context, the Commonwealth’s

comments effectively implored the jury to find that Marable’s guilty plea and

silence proved Appellant’s guilt.    Id. at 64.   Appellant maintains that the

comments were impermissible, because he had the right to have his guilt or

innocence determined by the evidence against him rather than what happened

during the Commonwealth’s prosecution of Marable. Id. at 63-64. Appellant

insists that trial counsel was ineffective for failing to object to these remarks,

trial counsel had no reasonable basis for his failure, and the failure resulted in

prejudice to Appellant. Id. at 64.




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      “To establish the third, prejudice prong [of the test for ineffectiveness],

the petitioner must show that there is a reasonable probability that the

outcome of the proceedings would have been different but for counsel’s

ineffectiveness.” Chmiel, 30 A.3d at 1127-28 (citation omitted).

      In making this determination, a court hearing an ineffectiveness
      claim must consider the totality of the evidence before the
      judge or jury . . . . Moreover, a verdict or conclusion only weakly
      supported by the record is more likely to have been affected by
      errors than one with overwhelming record support. Ultimately, a
      reviewing court must question the reliability of the proceedings
      and ask whether the result of the particular proceeding [was]
      unreliable because of a breakdown in the adversarial process that
      our system counts on to produce just results.

Commonwealth v. Crispell, 193 A.3d 919, 932 (Pa. 2018) (citations and

quotation marks omitted) (emphasis in original).

      “In closing arguments, a prosecutor may comment on the evidence and

any reasonable inferences arising from the evidence.” Commonwealth v.

Charleston, 94 A.3d 1012, 1024 (Pa. Super. 2014) (citation omitted).

      A prosecutor must have reasonable latitude in fairly presenting a
      case to the jury and must be free to present his or her arguments
      with logical force and vigor. The prosecutor is also permitted to
      respond to defense arguments. Finally, in order to evaluate
      whether the comments were improper, we do not look at the
      comments in a vacuum; rather we must look at them in the
      context in which they were made.

Id. (citation omitted).

      Instantly, trial counsel conceded that he should have objected to the

Commonwealth’s closing argument:

      No strategic reason [for failing to object]. When I was informed
      of [Appellant’s PCRA] petition and I went back and [the assistant

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       district attorney] showed me the transcript, I don’t recall [the
       remarks at issue]. Obviously, it did [happen]. If you asked me
       today should I have objected, I would say, “Yes, I should have
       objected.”

N.T. PCRA Hr’g at 29.

       Despite trial counsel’s testimony, the PCRA court concluded that there

was no reasonable probability that the outcome of the proceedings would have

been different but for counsel’s failure to object. See PCRA Ct. Op. at 11.

The PCRA court highlighted the evidence against Appellant, including: (1) Dina

Khem’s positive identifications of Appellant as the gunman immediately after

the incident and at trial; (2) the victims’ testimony that three men were

involved in the home invasion, and police arrived to find two men inside the

house and Appellant crouching behind a vehicle parked outside; and (3)

Appellant’s attempted flight in a vehicle containing a firearm and other items

linked to Mr. Jean. Id.

       Under the totality of this evidence, trial counsel’s failure to object to the

Commonwealth’s closing argument did not create a reasonable probability

that the outcome of the proceedings would have been different. See Crispell,

193 A.3d at 932; Chmiel, 30 A.3d at 1127-28. Therefore, the PCRA court

properly dismissed the PCRA petition.4 Miller, 102 A.3d at 992.
____________________________________________


4 Appellant also suggests that he is entitled to relief based upon the theory
that his claims cumulatively undermine confidence in the convictions.
Appellant’s Brief at 75. “[N]o number of failed ineffectiveness claims may
collectively warrant relief if they fail to do so individually. When the failure of
individual claims is based upon a lack of prejudice, however, then the
cumulative prejudice from those individual claims may properly be assessed.”



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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/19




____________________________________________


Commonwealth v. Elliott, 80 A.3d 415, 450 (Pa. 2013) (citations omitted).
Here, we have rejected Appellant’s claims of ineffectiveness based solely on a
lack of prejudice in connection with his final issue only. Thus, there can be no
aggregation of prejudice from multiple ineffectiveness claims, and Appellant’s
claim of cumulative error fails.

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