J-S60011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRIAN KING,

                            Appellant                 No. 2692 EDA 2014


                   Appeal from the PCRA Order August 22, 2014
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0111401-2006, CP-51-CR-0111411-
                                      2006


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 21, 2016

        Appellant, Brian King, appeals from the order denying his petition filed

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

9546. In addition, counsel for Appellant has filed a motion to withdraw and

a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). We grant counsel’s motion to withdraw and affirm the order of the

PCRA court.

        The PCRA court summarized the underlying facts of this case as

follows:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S60011-16


     On October 31, 2005, Appellant was driving his car and met up
     with his then eighteen (18) year old coconspirator, Tyreek
     Wilford. After Wilford got into Appellant’s car, Appellant told him
     that they were going to Norristown to rob somebody. When the
     intended victim was not where he was supposed to be, they
     drove back to Philadelphia. When they got to the area of Comly
     and Malta Streets, they saw three young men and two young
     women on the street. Appellant told Wilford that he wanted to
     rob them. He drove around the corner. Appellant pulled out a
     loaded Tech .9 and put it on his lap. They got out of the car and
     Appellant left the car running. Appellant gave Wilford the gun
     and Wilford hid the gun in his waist. Appellant approached the
     group and had a brief conversation with them. The people
     began to walk away. Appellant announced, “Hold up!” Wilford
     pulled the gun; Appellant told everyone to lie on the grass.
     Appellant then went through each person’s pockets. Wilford saw
     Appellant take cell phones and clothing from the victims.1 They
     ran back to the car. As they were about to get into the car,
     Appellant demanded the gun back. As Wilford was getting into
     the car, Appellant ran to another car on the block and attempted
     to take money from the driver of that car, Steven Badie. During
     the course of that robbery, Appellant fired a series of shots into
     the car, striking Badie a number of times, killing him. Appellant
     ran back to the car and they drove away. As the initial robbery
     victims had called the police, their car was stopped a few
     minutes later. They both were arrested after being identified by
     the surviving robbery victims. The gun was recovered from the
     back seat of the car, as well as cell phones and clothing. The
     phones and clothing were identified by the victims as those
     taken during the robbery.
           1
             One of the victims testified that money also was
           taken from him. N.T. 1/10/07, 13.

            When arrested, both Appellant and Wilford gave
     statements admitting to the initial robberies. Each, however,
     claimed that the other robbed and shot Badie and denied
     knowing that the other intended to do so. At time of Appellant’s
     trial, Wilford had already entered into a plea agreement with the
     Commonwealth in which he pleaded guilty to third degree
     murder, and all of the remaining charges. He then testified
     against Appellant.       No agreement was made with Wilford
     concerning the length of his prison sentence. At the time of
     Appellant’s trial, Wilford had yet to be sentenced.

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J-S60011-16



             At trial, Appellant’s theory was to concede his participation
      in the robbery of the five individuals. He then claimed that
      Wilford robbed and shot Badie without Appellant’s knowledge or
      consent. He asked the jury to parse this extended incident; find
      two separate and distinct criminal episodes and find Appellant
      not guilty of any degree of homicide or any responsibility for the
      robbery and death of Steven Badie2. In reaching the verdict that
      it did, the jury rejected Appellant’s theory of the case.
              2
                 Counsel consistently argued this theory in his
              opening, in his cross[-]examination of Wilford and in
              his closing.

PCRA Court Opinion, 2/29/16, at 1-3.

      On July 12, 2007, a jury convicted Appellant of one count of second

degree murder, six counts of robbery, and one count each of conspiracy and

possession of an instrument of crime (“PIC”).          On May 18, 2007, the trial

court sentenced Appellant to serve a mandatory term of life imprisonment

for the second-degree murder conviction.            The trial court also sentenced

Appellant to serve terms of incarceration of five to ten years for each of the

robbery convictions, five to ten years for the conspiracy conviction, and one

to two years for the PIC conviction. All of the sentences were made to run

concurrently.      Appellant filed post-sentence motions, which the trial court

denied.   On direct appeal, this Court affirmed Appellant’s judgment of

sentence on August 14, 2009, and the Pennsylvania Supreme Court denied

Appellant’s       petition   for   allowance   of   appeal   on   July   7,   2010.

Commonwealth v. King, 2332 EDA 2007, 984 A.2d 1016 (Pa. Super.




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2009) (unpublished memorandum), appeal denied, 997 A.2d 1175 (Pa.

2010.)

     Appellant filed, pro se, the instant PCRA petition on July 30, 2010.

The PCRA court appointed counsel, who eventually filed an amended PCRA

petition on September 20, 2013. On January 16, 2014, the Commonwealth

filed a motion to dismiss.    The PCRA court dismissed Appellant’s PCRA

petition on August 22, 2014. This timely appeal followed. New counsel was

appointed for purposes of this appeal. Both Appellant and the PCRA court

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

     On April 11, 2016, PCRA counsel filed a motion to withdraw; he also

filed with this Court a Turner/Finley letter.       When counsel seeks to

withdraw representation in a collateral appeal, the following conditions must

be met:

  1) As part of an application to withdraw as counsel, PCRA counsel
     must attach to the application a “no-merit” letter[;]

  2) PCRA counsel must, in the “no-merit” letter, list each claim the
     petitioner wishes to have reviewed, and detail the nature and
     extent of counsel’s review of the merits of each of those
     claims[;]

  3) PCRA counsel must set forth in the “no-merit” letter an
     explanation of why the petitioner’s issues are meritless[;]

  4) PCRA counsel must contemporaneously forward to the petitioner
     a copy of the application to withdraw, which must include (i) a
     copy of both the “no-merit” letter, and (ii) a statement advising
     the PCRA petitioner that, in the event the trial court grants the
     application of counsel to withdraw, the petitioner has the right to
     proceed pro se, or with the assistance of privately retained
     counsel;

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  5) The court must conduct its own independent review of the record
     in light of the PCRA petition and the issues set forth therein, as
     well as of the contents of the petition of PCRA counsel to
     withdraw; and

  6) The court must agree with counsel that the petition is meritless.

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal

punctuation marks omitted).

      In the present case, counsel complied with the requirements for

withdrawal from a collateral appeal.     In the motion filed with this Court,

counsel alleged that he extensively reviewed the case, evaluated the issues,

and concluded there were no issues of merit. Counsel also listed the issues

relevant to this appeal, and explained why, in his opinion, the appeal is

without merit. In addition, counsel averred that he sent Appellant a copy of

the motion to withdraw and the no-merit letter, which advised Appellant of

his right to proceed pro se or through privately retained counsel. Thus, we

will allow counsel to withdraw if, after our review, we conclude that the

issues relevant to this appeal lack merit.

      We have discerned the following issues, which were presented by

PCRA counsel on behalf of Appellant in the Pa.R.A.P. 1925(b) statement and

in the Turner/Finley letter:

      1. The Court erred in denying the motion to suppress as there
      was no probable cause for the initial search.

      2. The Court erred in denying the motion to suppress the show
      up identification as the procedure was unduly suggestive.


                                     -5-
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      3. The Court erred in denying the defendant opportunity to ask
      Commonwealth witness, Tyr[ee]ck Wilford, about the possibility
      of him facing life in prison if he did not cooperate with the
      Commonwealth.

      4. Counsel failed to object to the Commonwealth reading two
      previous statements of Commonwealth witness, Tyr[ee]ck
      Wilford, to the jury.

      5. Counsel conceded to the jury that the defendant was guilty of
      robbery when the defendant was charged with Murder in the
      Second Degree.

      6. The Commonwealth in closing argument made reference to
      the penalty the defendant would face if found guilty.

      7. The Commonwealth misstated the law in closing argument.

      8. Counsel failed to object to statements made             by the
      Commonwealth in closing argument.

      9. The Court gave improper jury instruction that was inconsistent
      with the jury verdict sheet and the law applied to Murder in the
      Second Degree.

      10. The failure to object to inadmissible prejudicial evidence and
      prejudicial statements made during closing argument by the
      Commonwealth, as well as conceding that the defendant
      committed robbery constitutes [sic] ineffective assistance of
      counsel.

      11. The defendant’s motion to suppress was meritorious and
      should have been granted.

Turner/Finley Letter at 3 - 11.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.


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2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.    Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

       In his first and second issues Appellant argues that the trial court

committed error with regard to his requests to suppress evidence.

Specifically, Appellant contends that the trial court erred in (1) denying his

suppression motion due to lack of probable cause to search, and (2) denying

his motion to suppress the show-up identification. Turner/Finley Letter at

3-5.

       We observe the following:

       “to be entitled to PCRA relief, a petitioner must plead and prove,
       inter alia, that the allegation of error has not been previously
       litigated or waived.” Commonwealth v. Berry, 877 A.2d 479,
       482 (Pa. Super. 2005), appeal denied, 917 A.2d 844 (Pa. 2007).
       “An issue is waived if it could have been raised prior to the filing
       of the PCRA petition, but was not.” Id. These statements in
       Berry are derived directly from Section 954[4](b) of the PCRA,
       which provides that “an issue is waived if the petitioner could
       have raised it but failed to do so before trial, at trial, during
       unitary review, on appeal or in a prior state postconviction
       proceeding.” 42 Pa.C.S. § 954[4](b).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007). Thus,

where issues presented in a PCRA petition could have been raised on direct


                                      -7-
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appeal and were not, they are waived. Id. See also Commonwealth v.

Lambert, 797 A.2d 232, 240 (Pa. 2001) (PCRA petitioner’s issues that could

have been raised on direct appeal but were not, are waived under 42 Pa.C.S.

§ 9544(b)).

      Our review of the record reflects that these issues asserting trial court

error concerning his requests to suppress evidence could have been raised

on direct appeal but were not.        Moreover, they are not claims which

Appellant assigns as error to counsel for failure to preserve them.

Accordingly, we conclude that these issues are waived. Turetsky.

      In his third issue, Appellant argues that the trial court erred in limiting

his cross-examination.    Appellant asserts that the trial court should have

permitted him to question Mr. Wilford regarding Mr. Wilford’s cooperation

with the Commonwealth and the possibility of Mr. Wilford facing a sentence

of life in prison. Turner/Finley Letter at 6.

      To be entitled to PCRA relief, a petitioner must plead and prove that

the allegation of error has not been previously litigated. Berry, 877 A.2d at

482. A claim is previously litigated under the PCRA if the highest appellate

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue. 42 Pa.C.S. § 9544(a)(2).

      Our review reflects that on direct appeal Appellant challenged whether

the trial court abused its discretion by prohibiting defense counsel from

cross-examining Mr. Wilford regarding whether he faced a sentence of life


                                      -8-
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imprisonment prior to entering a plea agreement with the Commonwealth,

which provided Wilford with an incentive to testify falsely. King, 2332 EDA

2007, 984 A.2d 1016 (unpublished memorandum at 4-6).              In Appellant’s

direct appeal, we ultimately held the following:

             We conclude that there was no error or abuse of discretion
       by the trial court in limiting cross-examination as described
       above. Defense counsel was given wide latitude in his cross-
       examination of [Mr.] Wilford and the opportunity to fully explore
       [Mr.] Wilford’s motivations for testifying against [Appellant]. Not
       only did counsel explore, at length, the details of [Mr.] Wilford’s
       guilty plea, he suggested to the jury, by repeatedly asking
       questions pertaining to this fact, that [Mr.] Wilford had escaped
       a sentence of life imprisonment without parole by entering into
       such a plea. For these reasons, we find [Appellant’s] first claim
       on appeal to be without merit.

Id. at 6 (footnote omitted).         Therefore, because the issue was previously

litigated on direct appeal, it is not cognizable for our review.     Berry, 877

A.2d at 482.

       Appellant next argues that his trial counsel provided ineffective

assistance. Appellant claims that his trial counsel was ineffective when he

failed to object to the Commonwealth entering into evidence two prior

consistent statements from Mr. Wilford.1 Turner/Finley Letter at 7-8.

____________________________________________


1
  We note that our review reflects that the Commonwealth presented two
prior statements by Mr. Wilford. The first was a statement originally given
on October 31, 2005, and admitted into evidence as Commonwealth Exhibit
C-12. N.T., 1/9/07, at 165. Defense counsel did not object to the admission
of that statement.     The second was a statement originally given on
November 20, 2006, and admitted into evidence as Commonwealth Exhibit
C-14. N.T., 1/9/07, at 178-180. Trial counsel did object to the admission of
(Footnote Continued Next Page)


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      Counsel is presumed effective, and it is the defendant’s burden to

prove ineffectiveness.        Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.

2010).     To overcome this presumption, Appellant must demonstrate that:

(1) the underlying claim has arguable merit; (2) counsel did not have a

reasonable basis for his actions or failure to act; and (3) the petitioner

suffered prejudice as a result of counsel’s deficient performance.        Id.     An

appellant’s claim fails if he cannot meet any one of these prongs.                Id.

Moreover, we are bound by the PCRA court’s credibility determinations

where there is support for them in the record. Commonwealth v. Battle,

883 A.2d 641, 648 (Pa. Super. 2005) (citing Commonwealth v. Abu-

Jamal, 720 A.2d 79 (Pa. 1998)).

      Furthermore, claims of ineffective assistance of counsel are not self-

proving.     Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

“[A] post-conviction petitioner must, at a minimum, present argumentation

relative to each layer of ineffective assistance, on all three prongs of the

ineffectiveness standard….”         Commonwealth v. D’Amato, 856 A.2d 806,

812   (Pa.    2004).        “[A]n    underdeveloped   argument,   which   fails    to

meaningfully discuss and apply the standard governing the review of
                       _______________________
(Footnote Continued)

the second statement, and the trial court sustained the objection. Id. at
180.      In addition, the Commonwealth admitted into evidence a
memorandum agreement among Mr. Wilford, the District Attorney, and Mr.
Wilford’s trial judge regarding his guilty plea and agreement to be truthful in
providing testimony, which was marked as Commonwealth Exhibit C-15. Id.
at 183-188. Trial counsel did not object to the admission of this evidence.



                                           - 10 -
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ineffectiveness claims, simply does not satisfy Appellant’s burden of

establishing that he is entitled to relief.” Commonwealth v. Bracey, 795

A.2d 935, 940 n.4 (Pa. 2001).

        Pennsylvania Rule of Evidence 613 provides, in relevant part, as

follows:

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

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

Pa.R.E. 613(c)(1).      “To the extent that prior consistent statements are

offered to prove the truth of the matter asserted therein, they are plainly

inadmissible hearsay.     However, when they are offered to corroborate in-

court      testimony,   prior   consistent     statements   are   not   hearsay.”

Commonwealth v. Willis, 552 A.2d 682, 691 (Pa. Super. 1988) (citations

omitted).

        Usually, evidence of a prior consistent statement may not be
        introduced until after the witness’s testimony has been attacked
        on cross-examination in one of the two ways specified in Rule
        613(c). Pa.R.E. 613(c) cmt. Occasionally, however, it is clear
        before cross-examination that the defense will focus on
        impeachment of the witness, either by showing fabrication, bias,
        etc., or by introducing a prior inconsistent statement. In such
        cases, the trial court is afforded discretion to admit the prior
        consistent statement in anticipation of impeachment.




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Commonwealth           v.   Cook,     952     A.2d   594,   625   (Pa.   2008)   (citing

Commonwealth v. Wilson, 861 A.2d 919 (Pa. 2004)).

      The PCRA court addressed this issue as follows:

            Counsel correctly noted that the Commonwealth did, in
      fact introduce two prior consistent statements made by the
      cooperating codefendant, Tyreek Wilford. However a significant
      part of the defense strategy was to relentlessly attack the
      credibility of this witness. His cross examination was aggressive
      and lengthy. The witness was impeached with prior statements
      given to the police.         Indeed, this was counsel’s theme
      throughout the trial. In his opening statement to the jury
      counsel said, “One, if you can’t trust the messenger, you can’t
      trust the message. And you can’t trust Tyreek Wilford.” N.T.
      11/9/07, 34. In his closing argument counsel repeated his
      theme and stated, “My defense is very simple: If you can’t trust
      the messenger, you can’t trust the message.” N.T. 1/11/07,
      136. As such, the introduction of these two prior consistent
      statements was proper. See Commonwealth v. Cook, 952,
      A.2d. 594, 625 (Pa. 2008).

PCRA Court Opinion, 2/29/16, at 7.

      We agree with the PCRA court that Appellant has not established that

the underlying issue has merit, and therefore counsel could not have been

ineffective by failing to pursue this issue on appeal.             Our review of the

certified record reflects that the tactic of trial counsel during opening

arguments, cross-examination, and closing arguments was to attack the

credibility of Mr. Wilford. N.T., 11/9/07, at 34-35, 191-252, 259-267; N.T.,

1/11/07, at 136.        Accordingly, under such circumstances our appellate

courts have held that a trial court, in its discretion, may permit the witness

to   be   questioned    on   direct    examination     concerning    prior   consistent

statements. Cook, 952 A.2d at 625. Thus, trial counsel cannot be found

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ineffective for failing to pursue an underlying claim that lacks arguable

merit.

       In his fifth issue, Appellant again argues that his trial counsel provided

ineffective assistance. Specifically, Appellant alleges that trial counsel was

ineffective in conceding Appellant’s guilt as to five charges of robbery

concerning the initial complainants. Turner/Finley Letter at 8-9.

       As previously stated, counsel is presumed effective, and it is the

defendant’s burden to prove ineffectiveness.          Martin, 5 A.3d at 183.     To

overcome this presumption, Appellant must demonstrate that: (1) the

underlying claim has arguable merit; (2) counsel did not have a reasonable

basis for his actions or failure to act; and (3) the petitioner suffered

prejudice as a result of counsel’s deficient performance. Id.

       The Pennsylvania Supreme Court has stated, “. . . there are multiple

scenarios in which a defense attorney may reasonably determine that the

most promising means of advancing his client’s interests is to admit what

has become plain to all concerned-that his client did in fact engage in at

least some of the underlying conduct complained of-but either to argue for

conviction of a less severe offense, or to plead for mercy in sentencing based

upon     the   facts   viewed   in   a    light   favorable   to   the   defendant.”

Commonwealth v. Cousin, 888 A.2d 710, 719 (Pa. 2005).                    In Cousin,

trial counsel conceded that his client, facing charges of homicide, was guilty

of voluntary manslaughter because counsel realized that the expectation of


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an acquittal was unreasonable after the presentation of the Commonwealth’s

case. The appellant sought PCRA relief, arguing that counsel’s decision to

concede guilt was prejudice per se as defined by the United States Supreme

Court in United States v. Cronic, 466 U.S. 648 (1984). The Pennsylvania

Supreme Court declined to hold that a counsel’s concession of guilt to some

charges in closing argument constituted per se ineffective assistance of

counsel and found that counsel had a reasonable strategic basis for his

actions, stating:

      Presently, as well, [counsel]’s strategic decision to concede guilt
      only to manslaughter during closing arguments is qualitatively
      different from a complete failure to subject the state’s case to
      adversarial testing as contemplated by Cronic and its progeny.
      The Commonwealth sought a murder conviction, and counsel
      argued vigorously (and successfully) that such a result would be
      inappropriate. There is no indication, moreover, that counsel
      failed to engage in appropriate cross-examination, adduce
      evidence favorable to the defendant, or make appropriate
      objections during the trial. It was only when the presentation of
      evidence was complete and counsel realized that expecting an
      acquittal on the homicide charge was unrealistic, that he decided
      to advocate in favor of the lowest level of homicide possible
      under the circumstances.

Cousin, 888 A.2d at 720.

      In addressing this claim of trial counsel ineffective assistance, the

PCRA court offered the following apt discussion:

      First, we note that evidence of Appellant’s participation in a
      robbery was overwhelming. Proceeds were found in his car and
      Appellant gave an inculpatory statement. We discussed above
      counsel’s reasoning for conceding this issue. Although rejected
      by the jury, the strategy was reasonable. See Commonwealth
      v. Cousin, 888 A.2d. 710 (Pa. 2005).


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PCRA Court Opinion, 2/29/16, at 7.

      Likewise, our review of the record reflects that the evidence of

Appellant’s    participation   in   the   robbery     of   the   five   individuals   was

overwhelming. Testimony revealed that, when he was questioned, Appellant

was wearing a piece of jewelry belonging to one of the robbery victims.

N.T., 1/10/07, at 84-88. In addition, the police obtained a search warrant

for Appellant’s vehicle and recovered items in the vehicle from the robbery.

Id. at 100-106. In his closing argument, trial counsel conceded Appellant’s

involvement in the robbery of the five individuals, but argued that Appellant

did not participate in the robbery and murder of the victim. N.T., 1/11/07,

at 138-139.      Given the overwhelming evidence against Appellant, it was

reasonable for trial counsel to concede that Appellant was guilty of the five

incidents of robbery but not guilty of the robbery or murder of the victim.

Hence, Appellant has failed to establish that trial counsel was ineffective in

this regard.

      In   his   sixth   and    seventh     issues,    Appellant    argues     that   the

Commonwealth committed prosecutorial misconduct.                    Specifically, in his

sixth issue Appellant contends that during the Commonwealth’s closing

argument, it improperly referenced the penalty Appellant would face in the

event he was found guilty.          Turner/Finley Letter at 9.           In his seventh

issue, Appellant claims that the Commonwealth made misstatements

concerning the law. Turner/Finley Letter at 10.


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     Again, we observe that where issues presented in a PCRA petition

could have been raised on direct appeal and were not, they are waived.

Turetsky, 925 A.2d at 879. Our review of the record reflects that the

issues of prosecutorial misconduct could have been raised on direct appeal

but were not.    Accordingly, we conclude that these issues are waived.

Turetsky.

     In his eighth issue, Appellant raises another claim of ineffective

assistance of trial counsel.    Here, Appellant alleges that counsel was

ineffective for failing to lodge appropriate objections to statements made by

the Commonwealth during its closing argument.       Turner/Finley Letter at

10. However, Appellant has not specified the particular statements made by

the Commonwealth that required objections. Accordingly, we will presume

that Appellant contends that trial counsel should have objected to (a) the

Commonwealth’s alleged reference to the penalty that he would face if found

guilty and (b) the Commonwealth’s statements concerning the law.

     As we previously discussed, in order to prove ineffectiveness,

Appellant must demonstrate that: (1) the underlying claim has arguable

merit; (2) counsel did not have a reasonable basis for his actions or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s

deficient performance. Martin, 5 A.3d at 183.

     In addition, we are mindful that “[a] failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.”


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Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citing

Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)).                       Thus, when it is

clear that a petitioner has failed to meet the prejudice prong of an

ineffective assistance of counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have

been met.       Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

         We first address the issue that trial counsel was ineffective for failing

to object to the Commonwealth’s alleged reference to the penalty that

Appellant would face if found guilty. This claim is belied by the record. Our

thorough      review    reflects     that    during   its     closing   argument,    the

Commonwealth never mentioned or made any reference to the penalty that

Appellant     would    face   if   found    guilty.   N.T.,    1/11/07,    at   171-190.

Accordingly, any claim that trial counsel was ineffective for not objecting to a

prosecutor’s comments, which were never spoken, lacks arguable merit.

Thus, Appellant’s contention that trial counsel was ineffective in this regard

fails.

         We next address the issue that trial counsel was ineffective for failing

to object to the Commonwealth’s statements concerning the law. This claim

is again unsupported by the record.




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      Our review of the certified record reflects that trial counsel did object

to   the   Commonwealth’s      statements      concerning   the   applicable   law.

Specifically, trial counsel stated the following is his objection:

            Your Honor, I object to the portion of the Commonwealth’s
      argument in which they argued to the jury that as a matter of
      law they could convict [Appellant] of the conspiracy to rob and
      shoot Steven Badie on the facts of the Norristown and Comly
      incidents.

            In this case there was a specific charge in the information,
      conspiracy to commit the robbery on Comly.                    The
      Commonwealth did not move on that. And the arguments,
      essentially, do not match the charges that are presented in this
      case.

            They are confusing to the jury and will mislead the jury,
      and I ask Your Honor to give a limiting instruction with respect
      to the conspiracy to rob and shoot Steven Badie, that they may
      only consider the facts relating to that incident.

N.T., 1/11/07, at 191-192. Thus, the claim that trial counsel was ineffective

for not objecting to the Commonwealth’s statements concerning the law is

belied by the record and lacks arguable merit.

      Furthermore, as the trial court correctly stated in response to trial

counsel’s objections, “I have also already told the jury, again and again, that

they are to take my definition of the law, so your objection is noted, and it

will be covered in my charge.” Id. at 192 (emphasis added). Thereafter,

during the charge to the jury, the trial court specifically instructed, “As I

have stated, apply only the law in which I instruct you.” Id. at 194.

      As our Supreme Court has long expressed, “[t]he law presumes that

the jury will follow the instructions of the court.”         Commonwealth v.

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Brown, 786 A.2d 961, 971 (Pa. 2001); Commonwealth v. O’Hannon, 732

A.2d 1193, 1196 (Pa. 1999) (stating that “[a]bsent evidence to the contrary,

the jury is presumed to have followed the trial court’s instructions.”). Again,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective assistance of counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have

been met. Baker, 880 A.2d at 656.

      As expressed, the trial court gave sufficient and thorough instructions

to the jury regarding its duty to apply the law as presented by the trial

court, and we presume the jury followed the instructions.           There is no

evidence that the jury ignored the charge, and “absent evidence to the

contrary, the jury is presumed to have followed the court’s instructions.”

O’Hannon, 732 A.2d at 1196. Accordingly, we conclude Appellant has failed

to demonstrate that he suffered any prejudice.           Therefore, Appellant’s

contention that trial counsel was ineffective in this circumstance fails.

      In his ninth issue, Appellant argues that the trial court improperly

charged the jury.       Appellant contends that the jury instruction was

inconsistent with the verdict sheet and the law applied to second-degree

murder. Turner/Finley Letter at 10.

      Once more, we note that where issues presented in a PCRA petition

could have been raised on direct appeal, and were not, they are waived.

Turetsky, 925 A.2d at 879. Our review of the record reflects that this


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issue, alleging that the trial court improperly instructed the jury, could have

been raised on direct appeal but was not.            Hence, we conclude that this

issue is waived. Turetsky.

      In his tenth issue, Appellant again presents claims challenging the

effective   assistance   of   trial   counsel.      Turner/Finley   Letter   at    10.

Particularly, Appellant restates his previous claims of ineffective assistance

with regard to trial counsel’s failure to object during the Commonwealth’s

closing arguments and trial counsel’s concession that Appellant committed

five instances of robbery.            Because we have addressed these claims

previously in this memorandum and concluded that they lack merit, we

decline to revisit them.

      In his eleventh issue, Appellant repeats his argument that his motion

to suppress should have been granted.             Turner/Finley Letter at 11.      We

addressed this claim in Appellant’s first issue and continue to reject his

attempt to have us conclude that his motion was meritorious and that the

trial court erred in failing to suppress.

      Upon our independent review, it is our determination that Appellant

failed to present any issue warranting relief and that the PCRA court’s

determination is supported by the record and free of legal error.                 Also,

having determined that there are no other issues that support a grant of

relief, we allow counsel to withdraw under the precepts of Turner/Finley.

      Motion to withdraw granted. Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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