J. S66039/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  v.                     :
                                         :
KEENAN COLEMAN,                          :       No. 3969 EDA 2017
                                         :
                       Appellant         :


              Appeal from the PCRA Order, December 1, 2017,
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos. CP-51-CR-0002793-2011,
             CP-51-CR-0002794-2011, CP-51-CR-0002820-2011


BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED MARCH 11, 2019

      Keenan Coleman appeals the December 1, 2017 order of the Court of

Common Pleas of Philadelphia County that dismissed his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

      The PCRA court summarized the facts and procedural history, as

follows:

           On August 27, 2012, this Court heard [appellant’s]
           pre-trial motion to suppress his identification by
           Wakeeyah Powell. This Court held the motion under
           advisement and denied it on August 28, 2012.
           Following the motion, [appellant] elected to exercise
           his right to a jury trial and pled not guilty to the
           charges of Murder of the First Degree (H1) and
           Possession of Instrument of Crime (“PIC”) (M1) on
           bill of information CP-51-CR-0002793-2011, Carrying
           Firearms Without a License (F3) on bill of information
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              CP-51-CR-0002794-2011, and Retaliation Against a
              Witness (F3) on bill of information CP-51-CR-
              0002820-2011.[1] These charges arose from the
              shooting death of Tobias Berry on April 12, 2010 on
              the 700 block of Dekalb Street and the retaliation
              against Rashe Bellmon [(“Bellmon”)], a witness in
              the underlying Homicide case, on January 5, 2011 in
              the Criminal Justice Center in the City and County of
              Philadelphia. On August 31, 2012, the jury found
              [appellant] guilty of the above listed charges. At the
              conclusion of the trial, this court sentenced
              [appellant] to the mandatory term of Life
              imprisonment without parole on the homicide charge
              and did not impose any additional sentence on the
              remaining charges.

              On September 4, 2012, [appellant] filed a notice of
              appeal to the Superior Court of Pennsylvania and the
              Court affirmed his convictions and judgment of
              sentence on April 22, 2014. [Appellant] petitioned
              for allocatur to the Supreme Court of Pennsylvania,
              which the Court denied on October 29, 201[4].[2]
              On September 30, 2015, [appellant] filed the instant
              counseled PCRA Petition and subsequently filed a
              memorandum of law in support of the Petition on
              March 4, 2016.         On January 12, 2017, the
              Commonwealth filed a Motion to Dismiss and the
              matter was first listed before this Court for decision
              on March 10, 2017.           On January 30, 2017,
              [appellant] filed a Reply including a request to defer
              this Court’s decision, pending the Supreme Court of
              the    United    States’   ruling   in   Weaver     v.
              Massachusetts, 137 S. Ct. 1899 (June 22, 2017).
              This Court granted the request and continued the
              matter to June 30, 2017. On June 30, 2017, counsel
              advised this Court that [the] Weaver case had been
              decided and this Court listed the matter for decision
              on September 29, 2017. On September 29, 2017,
              following a review of the record, this Court sent

1   18 Pa.C.S.A. §§ 2502(a), 907(a), 6106(a)(1), and 4953(c), respectively.

2  Commonwealth v. Coleman, 102 A.3d 536 (Pa.Super. 2014)
(unpublished memorandum), appeal denied, 102 A.3d 983 (Pa. 2014).


                                      -2-
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            [appellant] the instant 907 Notice, pursuant to
            Pa.R.Crim.P. 907(1). This Court did not receive any
            response to the 907 Notice. On December 1, 2017,
            this Court dismissed the PCRA petition.          On
            December 13, 2017, this Court received a Notice of
            Appeal, in response to which it has submitted the
            instant Opinion.[3]

PCRA court opinion, 12/19/17 at 1-34 (footnote and underlining omitted).

      Appellant raises the following issues for our review:

            1.     Was [a]ppellant deprived of the effective
                   assistance of counsel when trial counsel failed
                   to object or otherwise move to exclude
                   extensive     inadmissible     hearsay     and
                   inadmissible bad acts/character evidence?

            2.     Was [a]ppellant deprived of the effective
                   assistance of counsel and a fair trial when trial
                   counsel failed to object to the prosecutor’s
                   closing argument which impermissibly reduced
                   the burden of proof and improperly vouchsafed
                   for   the   credibility of two       prosecution
                   witnesses?

            3.     Was [a]ppellant [d]eprived of the effective
                   assistance of counsel and a fair trial when trial
                   counsel failed to present proof supportive of
                   the defense of actual innocence to a charge of
                   witness retaliation?

            4.     Is not appellant entitled to relief under a
                   “cumulative prejudice” standard?

Appellant’s brief at 6.




3The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal.

4 The PCRA court opinion is not paginated. We have numbered the pages
consecutively to more easily identify them.


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J. S66039/18

      Proper appellate review of a PCRA court’s dismissal 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) (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) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”     Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).

      When the PCRA court denies a petition without an evidentiary hearing,

as is the case here, we “examine each issue raised in the PCRA petition in

light of the record certified before it in order to determine if the PCRA court

erred in its determination that there were no genuine issues of material fact

in controversy and in denying relief without conducting an evidentiary

hearing.”   Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa.Super.

2004).

      Appellant’s claims concern the ineffectiveness of his trial counsel. To

prevail on a claim of ineffective assistance of counsel under the PCRA, a

petitioner must establish the following three factors: “first[,] the underlying

claim has arguable merit; second, that counsel had no reasonable basis for

his action or inaction; and third, that [the petitioner] was prejudiced.”



                                     -4-
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Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)

(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

            [A] PCRA petitioner will be granted relief only when
            he proves, by a preponderance of the evidence, that
            his conviction or sentence resulted from the
            [i]neffective 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. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation

marks   omitted;     some    brackets    in    original),    citing     42    Pa.C.S.A.

§ 9543(a)(2)(ii).

      “[C]ounsel    is   presumed   to   be    effective     and      the    burden    of

demonstrating ineffectiveness rests on appellant.”                Commonwealth v.

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

denied, 30 A.3d 487 (Pa. 2011). Additionally, counsel is not ineffective for

failing to raise a claim that is devoid of merit. Commonwealth v. Ligons,

971 A.2d 1125, 1146 (Pa. 2009).

      Initially, appellant   contends that he       was deprived of effective

assistance of counsel when trial counsel failed to object or otherwise move

to   exclude   extensive     inadmissible     hearsay       and    inadmissible       bad

acts/character evidence. (Appellant’s brief at 16.)

      Hearsay is defined in Rule 801 of the Pennsylvania Rules of Evidence

as “a statement that (1) the declarant does not make while testifying at the




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current trial or hearing; and (2) a party offers in evidence to prove the truth

of the matter asserted in the statement.” Pa.R.E. 801(c).

      Appellant cites five instances during the trial where he believes that

his counsel was ineffective because he failed to object to alleged hearsay

statements.

      In the first statement, appellant asserts that witness Wakeeyah Powell

(“Powell”) repeated inadmissible hearsay that police told her that they had

“other people’s statements [but] lost our original witness.” Powell explained

that when she gave an earlier statement that two men killed the victim,

Tobias Berry, “They wanted me to say that these two young men killed

Tobias or else because we already have other people’s statements, we just

lost our original witness.”   (Notes of testimony, 8/28/12 at 182.)     Shortly

thereafter, Powell again explained: “Y’all can’t force me to see something

that happened that I didn’t see. Y’all can’t find your original witness so y’all

keep harassing me.”     (Id. at 196-197.)    Once more, she referred to the

Commonwealth’s failure to “find your original witness.” (Id. at 202.)

      The PCRA court determined that Powell’s statements did not constitute

hearsay because they were not offered to prove the truth of the matter

asserted in the statement.       The PCRA court determined that Powell’s

statements were to explain why she made an earlier statement implicating

appellant as the killer but was recanting the statement at trial. The PCRA

court concluded that the explanations were part of her testimony that the



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jury could use to assess her credibility. (PCRA court opinion, 12/19/17 at

10-11.)     This court agrees.    Appellant’s claim has no merit.         Therefore,

counsel was not ineffective for failing to object to it. Charleston, 94 A.3d at

1020.

        Appellant next contends that counsel was ineffective for failing to

object when Powell testified that her friend told her that appellant and his

co-defendant     committed     the   crime.     (Appellant’s   brief     at   16-17.)

Specifically, Powell testified regarding whether she testified at a preliminary

hearing:

              I was getting high and a friend of mine’s, I don’t
              want to put her name out there, she’s like, This is
              messed up around here, you know, seeing how
              things is [sic] going on, how they killed little Tobias.
              I went off, okay, because I loved him, I really did.
              I’m not trying to get these boys off or none of the
              above, but I’m not going to say something that I
              really did not see.

Notes of testimony, 8/28/12 at 215.

        Once again, the PCRA court determined that Powell’s statements did

not constitute hearsay because they were not offered to prove the truth of

the matter asserted in the statement but were offered to explain why Powell

was recanting her original statement. This court agrees. Appellant’s claim

has no merit. Therefore, counsel was not ineffective for failing to object to

it. Charleston, 94 A.3d at 1020.

        Appellant next asserts that trial counsel was ineffective for failing to

object when Hanif Hall (“Hall”) testified that detectives told him that they


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know “them [sic] two did it. . . .” (Notes of testimony, 8/28/12 at 287.) As

with Powell’s testimony, Hall explained why detectives talked to him in an

effort, in his mind, to force him to make a statement about the killing. As

with Powell, the PCRA court determined that Hall’s explanation did not

amount to hearsay, as it was not offered to prove the truth of the matter

asserted but was offered to support Hall’s recantation of his earlier

statement. The claim that counsel was ineffective for failure to object to this

statement has no merit. Charleston, 94 A.3d at 1020.

        Appellant next makes a similar hearsay claim regarding Hall’s

statement that he knew the defendants and that “I didn’t know that they

killed him, that was just [the] word on the street.”       (Id. at 311.)   Once

again, this statement is not uttered to prove the truth of the matter

asserted.     Hall attempted to recant his earlier statement regarding the

killing.   Appellant’s claim of ineffective assistance of counsel for failure to

object to this testimony and for eliciting similar testimony from Hall on

cross-examination (id. at 321-324) has no merit. Charleston, 94 A.3d at

1020.

        Appellant next asserts that trial counsel was ineffective for failing to

object when Detective John Keen (“Detective Keen”) read Hall’s statement

that someone named Tanisha said that appellant committed the murder. A

review of the record reveals that trial counsel did object to Detective Keen’s




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reading of the statements of Powell and Hall. (Notes of testimony, 8/29/12

at 152-156.) Therefore, the record belies appellant’s claim.

        Appellant next contends that trial counsel was ineffective for failing to

object when the statement of Powell was read to the jury that identified

appellant as the person who had “the drug block at Union and Melon Street.”

(Notes of testimony, 8/28/12 at 188.)         Appellant also asserts that trial

counsel was ineffective when he failed to object to the reading of Hall’s

statement that described appellant by his nickname, “K-9” and stated

“K-9 didn’t know how to run a business, he liked to shoot people.” (Id. at

295.)     Appellant also claims ineffective assistance of counsel when trial

counsel did not object to the reading of Hall’s statement where, in response

to the question of what types of guns appellant carried, Hall answered, “All

kinds, revolvers, automatics, he changes guns all the time.” (Id. at 303.)

Appellant argues that a statement about his association with drug dealing

does not have a sufficient connection to the crimes with which appellant had

been charged and the possession of other guns had no relevance to the case

at hand and could only cast him as a violent individual. (Appellant’s brief at

22-23.)

        Rule 404(b)(2) of the Pennsylvania Rules of Evidence provides:

              (b)   Crimes, Wrongs or Other Acts.

                    ....

                    (2)    Permitted Uses. This evidence may be
                           admissible for another purpose, such as


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                          proving motive, opportunity, intent,
                          preparation, plan, knowledge, identity,
                          absence of mistake, or lack of accident.
                          In a criminal case this evidence is
                          admissible only if the probative value of
                          the evidence outweighs its potential for
                          unfair prejudice.

Pa.R.E. 404(b)(2).

      With respect to these statements, the trial court explained its

reasoning for determining that this claim of ineffective assistance of counsel

failed:

              The testimony of [] Powell and [] Hall established
              [appellant’s] involvement in the drug trade, in the
              vicinity of Union Street and Melon Street in the City
              of    Philadelphia,  and     further    described   the
              relationships and roles of the participants in the drug
              organization as well as the recent circumstances
              leading to Tobias Berry being believed to be a snitch.
              This Court determined that the probative value of
              the evidence outweighed its potential prejudice to
              [appellant] because the shooting grew out of the
              circumstances of Tobias Berry being believed to be a
              snitch and [appellant’s] involvement as an enforcer
              in the drug trade.      As such, the evidence was
              properly introduced at trial for the limited purpose of
              demonstrating      motive    for   the    shooting   of
              Tobias Berry and any objection by trial counsel would
              have been unwarranted.

Trial court opinion, 12/19/17 at 17-18.

      The trial court succinctly explained its conclusion that the evidence

was admissible.      Generally, the admissibility of evidence is left to the

discretion of the trial court. Commonwealth v. Malloy, 856 A.2d 767, 775

(Pa. 2004).    This court discerns no abuse of discretion.     Trial counsel was



                                      - 10 -
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not ineffective for failing to object to admissible evidence. These claims of

ineffectiveness of counsel were of no merit. Charleston, 94 A.3d at 1020.

      Appellant next contends that he was deprived of effective assistance of

counsel and a fair trial when trial counsel failed to object to the

Commonwealth’s closing argument.         (Appellant’s brief at 23.)    First,

appellant asserts that the Commonwealth impermissibly reduced the burden

of proof when it told the jury that the defense was wrong in analyzing

individual failings in the prosecution’s case, and that the jury must look at

the full package.    (Id. at 23-24.)    The prosecutor, Brian Zarallo, Esq.

(“D.A. Zarallo”) stated:

            You know, one of the first things is that you are to
            take this evidence as a whole, not in a vacuum, and
            that’s important. You’re not supposed to do what
            counsel says and just say, Well there’s one problem
            with that, so we will throw that out. Problem with
            this, we will throw that out. We will throw that out.
            Because if you’re looking to do that you find a
            problem with everything and anything. That what
            the law says, you look at it all together, you don’t
            look at it in a vacuum.

Notes of testimony, 8/30/12 at 242.

      With respect to D.A. Zarallo’s comments about the witnesses in his

closing argument, the applicable law is as follows:

            With specific reference to a claim of prosecutorial
            misconduct in a closing statement, it is well settled
            that any challenged prosecutorial comment must not
            be viewed in isolation, but rather must be considered
            in the context in which it was offered. Our review of
            a prosecutor’s comment and an allegation of
            prosecutorial misconduct requires us to evaluate


                                    - 11 -
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           whether a defendant received a fair trial, not a
           perfect trial. Thus, it is well settled that statements
           made by the prosecutor to the jury during closing
           argument will not form the basis for granting a new
           trial unless the unavoidable effect of such comments
           would be to prejudice the jury, forming in their
           minds fixed bias and hostility toward the defendant
           so they could not weigh the evidence objectively and
           render a true verdict. The appellate courts have
           recognized that not every unwise remark by an
           attorney amounts to misconduct or warrants the
           grant of a new trial. Additionally, like the defense,
           the prosecution is accorded reasonable latitude, may
           employ oratorical flair in arguing its version of the
           case to the jury, and may advance arguments
           supported by the evidence or use inferences that can
           reasonably be derived therefrom.         Moreover, the
           prosecutor is permitted to fairly respond to points
           made in the defense’s closing, and therefore, a
           proper examination of a prosecutor’s comments in
           closing requires review of the arguments advanced
           by the defense in summation.

Commonwealth v. Jones, 191 A.3d 830, 835-836 (Pa.Super. 2018),

quoting Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016).

     It is appellant’s theory that if D.A. Zarallo had not made this statement

or if counsel had objected to the statement, there is reasonable probability

that the outcome of the trial might have been different.

     However, D.A. Zarallo’s statement regarding the evidence did not

change the burden of proof. The trial court clearly explained the applicable

burden of proof in its instructions to the jury. (Notes of testimony, 8/30/12

at 301-303.)    The jury is presumed to have followed the trial court’s

instructions. See Commonwealth v. Mollet, 5 A.3d 291, 313 (Pa.Super.




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2010).    This allegation of ineffectiveness of counsel has no merit.

Charleston, 94 A.3d at 1020.

     Appellant    also     asserts   that     the   Commonwealth    improperly

“vouchsafed” for the credibility of two of its witnesses.    (Appellant’s brief

at 24.) Specifically, D.A. Zarallo stated that he was “not mad at” Powell for

changing her story.      (Notes of testimony, 8/30/12 at 260.)     D.A. Zarallo

described Hall and Bellmon in the following manner:

           And Hanif Hall had the courage he needed to give
           this information which was fully corroborated. But
           didn’t have it when it came time to testify. And
           that’s okay, the law gives you the power to get that.

           The young man named Rashe Bellmon, and he’s a
           street guy, he’s a criminal, he’s somebody that
           probably you don’t want to have over for dinner. But
           I can tell you what else he is, the guy’s got courage,
           he was the only one that had the courage to come
           into this courtroom and stand up for that kid, the
           only one. And he went through just as much or
           worse because we dropped the ball and didn’t keep
           him separated in his cell room. He had to have his
           family threatened, his life threatened. He got beaten
           up and sucker punched and crowded on and called a
           snitch. He went through that. And he still came in
           here and told you what happened.

Notes of testimony, 8/30/12 at 284-285.

     It is appellant’s theory that D.A. Zarallo’s bolstering of the damaged

witnesses led to a reasonable probability that without these arguments, or if

trial counsel had objected, the outcome might have been different.

     The PCRA court explained why this claim had no merit:




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           In the instant matter, the prosecutor’s remarks were
           made in fair response to the respective closing
           remarks of the defense. . . . With regard to the
           alleged     vouchsafing    for    the    credibility     of
           Commonwealth witnesses, the prosecutor was
           properly responding to the defense’s challenges to
           witness credibility, which included motivations to
           fabricate explanations for the witness recantation at
           trial.    The prosecutor’s remarks were proper
           argument and were not of sufficient significance to
           result in . . . denying [appellant’s] right to a fair trial
           and, as such, any objection by trial counsel would
           have been frivolous. Accordingly, [appellant’s] claim
           of ineffectiveness must fail.

PCRA court opinion, 12/19/17 at 19 (citation to record omitted).

     A review of the record confirms the PCRA court’s assessment.

Appellant’s counsel attacked the credibility of Powell, Hall, and Bellmon.

D.A. Zarallo was responding to points made by appellant’s trial counsel.

There was no reason for counsel to object to these statements made in the

Commonwealth’s closing. This claim fails as it has no merit. Charleston,

94 A.3d at 1020.

     Appellant next asserts that he was deprived of the effective assistance

of counsel and a fair trial when trial counsel failed to present proof to

support the defense of actual innocence to the charge of witness retaliation.

Bellmon testified that appellant made inculpatory admissions and that

appellant assaulted him because of his role as a testifying witness.

Appellant asserts that he advised trial counsel that he could show that, at

the time of the assault, appellant had not yet been made aware that Bellmon

was an adverse witness and that any fight between Bellmon and appellant


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was because of a personal matter unrelated to the homicide charge.

Appellant argues that he suffered prejudice. With respect to the charge of

witness retaliation, appellant claims that proof of an alternative ground for

the assault removes an element of the offense and precludes a conviction on

that charge.    With respect to the murder charge, appellant claims that

without the act of retaliation there is no support for using this type of

evidence as “consciousness of guilt” and corroboration for the homicide.

(Appellant’s brief at 27.)

      The PCRA court determined that appellant did not sufficiently develop

his claim to enable the necessary analysis to determine whether trial counsel

was ineffective. The PCRA court explained:

            Our Supreme Court has long held that “claims of
            ineffective assistance of counsel are not self-proving
            [and that an] undeveloped claim of ineffectiveness is
            insufficient   to    prove     an     entitlement   to
            relief.”[Footnote 26] [Appellant’s] bare assertions
            related to the timing and nature of the assault leave
            this Court without any details to assess whether
            counsel had any such information and, if so, whether
            counsel’s decision to not present such information
            had a reasonable basis. Moreover, following this
            Court’s colloquy of [appellant] regarding his decision
            not to testify at trial, this Court engaged in a
            lengthy exchange with [appellant] regarding
            additional witnesses, motions, and/or defenses that
            [appellant] wished to have presented. The relevant
            portion of the transcript provides the following:

                  ....

                  THE COURT: Okay. Are there any other
                  witnesses, documents, anything else at
                  all that you wish had been presented


                                    - 15 -
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                  that were not presented         during   the
                  course of the trial?

                  [APPELLANT]: No.

                  . . . . [Footnote 27]

            This extensive exchange provided [appellant] with
            the opportunity to present any and all concerns to
            this Court and the transcript is void of any discussion
            regarding the information [appellant] now asserts he
            wished to have presented regarding the timing and
            nature of the assault in the cell room. Accordingly,
            this Court finds no further support in the record for
            the instant undeveloped claim of ineffectiveness of
            trial counsel and, as such, the claim must fail.


            [Footnote 26] Com[monwealth] v. Jones, 811
            A.2d 994, 1003 (Pa. 2002).

            [Footnote 27] N.T. 8/30/12 at []131.

PCRA court opinion, 12/19/17 at 7, 9-10 (emphasis in original).

      This court agrees with the PCRA court. Appellant may not now assert

that trial counsel was ineffective for his failure to present additional evidence

where appellant stated before the trial court that he did not wish to have

any additional evidence presented. See Commonwealth v. Pander, 100

A.3d 626, 642-643 (Pa.Super. 2014), appeal denied, 109 A.3d 679 (Pa.

2015). Once again, this claim has no merit. Charleston, 94 A.3d at 1020.

      Finally, appellant contends that he is entitled to relief under a

cumulative error standard in that the cumulative impact of trial counsel’s

ineffectiveness on the various points appellant raised taken together

constituted sufficient prejudice to warrant a new trial.         (Appellant’s brief


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at 29.) Where ineffectiveness claims have been rejected for lack of merit,

there is no basis for an ineffective assistance of counsel claim based on an

accumulation of claims. See Commonwealth v. Busanet, 54 A.3d 35, 75

(Pa. 2012), cert. denied, 571 U.S. 869 (2013).          As we have rejected

appellant’s claims of ineffectiveness because they have no merit, appellant’s

cumulative claim fails as well.

      This court concludes that the record supports the PCRA court’s decision

and that the PCRA court’s decision is free from legal error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/11/19




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