J-A04019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILFREDO RAMOS

                            Appellant                 No. 426 EDA 2015


              Appeal from the PCRA Order dated January 16, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0100891-1999

BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                       FILED SEPTEMBER 27, 2017

        Appellant Wilfredo Ramos was convicted in 1999 of the murder of

James Crawford, otherwise known by the nickname “Jazzie,” who was killed

in the course of a drug transaction. Appellant appeals from an order by the

Court of Common Pleas of Philadelphia County that denied his petition under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, for relief

from his judgment of sentence. We affirm.

        The facts of this action were described by the Supreme Court in

Commonwealth v. Ramos, 827 A.2d 1195 (Pa. 2003), cert. denied, 541

U.S. 940 (2004), and we draw on that description for an overview of the

events that are the subject of this appeal:


____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
J-A04019-17


     The record below establishes that on October 11, 1998 at
     approximately 2:30 in the morning, James Crawford was
     standing in front of a bar at the corner of Lawrence and Indiana
     Streets in Philadelphia.       Jeanine Davis, the girlfriend of
     Crawford’s cousin, approached Crawford with the intent of
     procuring drugs from him. Crawford and Davis walked into a
     nearby abandoned house at the corner of Leithgow and Indiana
     Streets for the purpose of using drugs. When the two entered
     the house, Nick Cruz was inside. Meanwhile, Appellant and his
     half-uncle, Michael Centeno, drove up in a car and parked in the
     middle of Leithgow Street. Appellant and Centeno exited the car
     and walked toward the corner of Lawrence and Indiana Streets,
     where Crawford’s friend Robert Kennedy was standing.          As
     Appellant approached Kennedy, he asked Kennedy if anybody
     had any drugs. In response, Kennedy yelled for Crawford.
     Crawford told Davis and Cruz that he would be right back, and
     he left the house.

     A few minutes later, Davis, who was standing inside the house,
     saw Appellant and Crawford together directly in front of the
     house.5 As Appellant began to walk away from Crawford, Davis
     heard Crawford yell, “Yo, man, give me my s--t.”         N.T.,
     12/27/1999, at 70. In response, she heard Appellant command
     Crawford to “[b]ack up.” Id. Davis then saw Appellant turn
     around and shoot Crawford in the chest from about three feet
     away.
        5
          As the house was dark and its doors and windows were
        missing, Davis stood just inside the doorway so that she could
        see and hear what was going on outside without being seen
        from the outside herself. Similarly, Cruz stood just inside of a
        window opening to watch and hear these events unfold.

     Once Crawford fell to the ground, Davis watched Appellant turn
     around in a circle and look around, which gave her a clear view
     of Appellant’s face.    She recognized Appellant from having
     previously seen him in the neighborhood. Davis then observed
     Appellant walk across the street and climb into the passenger
     seat of the car parked on Leithgow Street. The car sped away.

     Davis subsequently gave a statement to police in which she
     described the shooter as a six-foot-tall Hispanic male with a thin
     build, about twenty to twenty-five years old, which is consistent
     with    Appellant’s   physical   description.      Using    these
     characteristics, [Homicide Unit Detective Paul McElvie] generated
                                    -2-
J-A04019-17


       a line-up containing 106 different photographs [using an imaging
       machine. N.T., 12/28/99, at 10-11]. Out of this line-up, Davis
       selected two different photographs of Appellant[1] and stated
       that he was the shooter.6
          6
           Cruz and Kennedy also gave statements[2] to police in which
          they gave physical descriptions of the shooter.        Those
          statements were consistent not only with each other but also
          consistent with Appellant’s physical description. Cruz and
          Kennedy also gave physical descriptions of the shooter’s
          accomplice that were consistent with each other and with
          Centeno’s physical description. Cruz . . . apparently did not
          participate in a photographic line-up, however, nor did [Cruz
          and Kennedy] testify at trial. . . .

Id. at 1196–97.

       Cruz gave two statements to police.           In the first, conducted on

October 11, 1998, Cruz stated that Kennedy was standing on the corner of

Lawrence and Indiana Streets when the shooting occurred.           Investigation

Interview Record of Cruz, 10/11/98, at 2. Kennedy’s location at the time of

the shooting was also confirmed by Davis, who stated that, upon her arrival

at the scene, Kennedy was standing on the corner of Lawrence and Indiana

Streets, in front of the bar.           Investigation Interview Record of Davis,

10/11/98, at 1-2.
____________________________________________
1
   Detective McElvie testified that he had been unaware that there was a
second, different photograph of Appellant in the array until Davis indicated
it. N.T., 12/28/99, at 12.
2
  Kennedy gave two separate statements to police. Kennedy gave his first
statement on October 14, 1998; that statement was marked as Petitioner’s
Exhibit 3 (“P-3”) during Appellant’s PCRA hearing on July 14, 2008.
Kennedy gave his second statement on November 12, 1998; that statement
was marked as Petitioner’s Exhibit 4 (“P-4”) during Appellant’s PCRA hearing
on July 14, 2008.


                                           -3-
J-A04019-17


        In Kennedy’s first police statement on October 14, 1998, he likewise

stated that he “was standing on the S/W corner” of Lawrence and Indiana

Streets, “beside the Family Place Bar.”          Then he “turned towards the bar.

. . . Then [he] heard a gunshot. [He] turned around and saw the guy with

the striped shirt with the gun in the air[.]” Investigation Interview Record of

Kennedy, 10/14/98, at 1-2. Kennedy also stated that the killer was wearing

sunglasses.      Id. at 3.       When asked who else witnessed the shooting,

Kennedy answered, “I guess the two people that was in the house, Jeanine

[Davis] and the guy with the bad leg.” Id. at 4.3

        On November 12, 1998, Kennedy viewed a photographic array and

gave a second statement to police, in which the following exchange

occurred:

        Q.   Mr. Kennedy you have also told [the detective conducting
        the interview] that the male in the # 2 position [in the
        photographic array] is the man that shot James Crawford on 10-
        11-98 is that correct?

        A.    Yes. I have seen him in the area a number of times.
        (identifying PP # 768938 assigned to Wilfredo Ramos.)

Investigation Interview Record of Kennedy, 11/12/98, at 2.

        On November 17, 1998, Appellant was arrested and interviewed
        by police. Appellant gave a statement to police,[4] admitting
____________________________________________
3
    Kennedy did not further identify “the guy with the bad leg.”
4
 Appellant’s statement included his admission that he “was dealing drugs at
4th and Somerset Street” on the night of the murder. N.T., 12/28/99, at
48; Ex. P-12A, 9/25/08, at 4. The detective who took Appellant’s statement,
Detective Reinhold, testified that Appellant answered his questions
(Footnote Continued Next Page)

                                           -4-
J-A04019-17


      that he had been present at the shooting but accusing Centeno
      of robbing and shooting Crawford. According to Appellant’s
      statement, as he was on his way to buy drugs at Lawrence and
      Indiana Streets, he ran into Centeno. When Centeno found out
      where Appellant was going, he decided to join him, telling
      Appellant that he was looking to “stick somebody up” and
      promising to split the proceeds of the robbery with Appellant.
      N.T., 12/28/1999, at 48 (testimony of Philadelphia Police
      Detective Richard Reinhold, in which he read Appellant’s
      statement into evidence). Appellant claimed that on the way,
      Centeno showed him the gun he planned to use to commit the
      robbery, but Appellant contended that he did not know that
      Centeno was going to shoot anyone. Appellant also claimed that
      upon arriving at Lawrence and Indiana Streets, he bought a bag
      of heroin and four rocks of crack cocaine from Crawford and then
      walked away. Soon thereafter, according to Appellant, he heard
      a shot and saw Centeno running down Leithgow Street with a
      gun in his hand.

Ramos, 827 A.2d at 1197–98. On February 1, 1999, Centeno was arrested

and charged with murder. N.T., 12/28/99, at 58.

      At Appellant’s preliminary hearing on December 24, 1998, Davis gave

testimony that aligned with her police statement.    N.T., 12/24/98, at 5-9,

13, 17-18, 28-29.

      Voir dire occurred from December 20 to 23, 1999.5 Prior to the start

of Appellant’s trial, his counsel asked the trial court to order Kennedy and

Cruz to be held in Philadelphia County custody so that they could be brought

to the courthouse each day of trial and be reached immediately to testify, if
                       _______________________
(Footnote Continued)
coherently and appeared to be of sound mind and not under the influence of
alcohol or drugs. N.T., 12/28/99, at 40.
5
  As discussed later in the text, two days of the four days of voir dire
proceedings were never transcribed and were never provided to Appellant or
his appellate counsel.


                                            -5-
J-A04019-17


necessary.    N.T., 12/27/99, at 64-66.       The trial court agreed.   The guilt

phase of Appellant’s jury trial was held on December 27 to 30, 1999; the

penalty phase followed from January 10 to 11, 2000.

     At Appellant’s trial, Davis testified to what she saw in the early
     morning hours of October 11, 1998, and identified Appellant as
     the shooter. The Commonwealth also introduced Appellant’s
     police statement into evidence to show that Appellant had
     admitted to being present during the shooting. Furthermore, Dr.
     Gregory McDonald, a forensic pathologist, testified that Crawford
     died of a gunshot that was fired into his chest from point-blank
     range. Officer James Joyce, an expert in firearms identification,
     testified that the fatal bullet had been fired from a nine-
     millimeter or a thirty-eight-caliber handgun, which was
     consistent with the nine-millimeter cartridge case found by police
     at the scene of the shooting.

Ramos, 827 A.2d at 1198.

     Detective Reinhold also testified at Appellant’s trial. During his cross-

examination, the following exchanges occurred:

     Q.    Is it fair to say that the information which was furnished by
     [Appellant] was one of the basic matters which ultimately
     resulted in your arresting Michael Centeno and charging him with
     the murder of James Crawford?

     A.   That and the statement that Michael Centeno made that
     [Appellant] was the shooter.

                                    *    *    *

     Q.   Now just so we get our time sequences correct, Detective
     Reinhold, before you interviewed [Appellant] on November the
     17th of 1998 you had already taken statements from other
     people in this case, Nicholas Cruz, Robert Kennedy; isn’t that so?

     A.      That’s correct, sir.

                                    *    *    *



                                        -6-
J-A04019-17


     Q.    Do you have any specific information from any source,
     very limited question, any source, as to what corner Michael
     Centeno was standing on while [Appellant] bought drugs from
     James Crawford?

     A.    From other witness interviews the corner would have been
     the southeast corner [of Lawrence and Indiana Streets].

                                  *    *    *

     [Q. A]s the assigned detective and having interviewed Mr.
     Cruz and Mr. Robert Kennedy they also furnished information to
     you that the shooter was wearing sunglasses; isn’t that right?

     A.       And that Wilfredo Ramos was the shooter.

                                  *    *    *

     [Q.] You already told us that you took statements from Robert
     Kennedy also known as Midnight and from Mr. Nick Cruz. My
     question was isn’t it a fact that in the statements you took from
     those two people whose names I’ve mentioned, those two
     people, Mr. Kennedy and Mr. Cruz both told you when you
     interviewed them at some point that the shooter of James
     Crawford was wearing sunglasses, yes or no?

     A.    I believe that is true, sir. I don’t have those interviews in
     front of me. I believe that’s true.

N.T., 12/28/99, at 58, 65-69.

     Prior to Detective Reinhold’s re-direct examination, the Commonwealth

asked to have Kennedy’s first statement and Cruz’s statement marked as

Exhibits C-8 and C-9, respectively.    N.T., 12/28/99, at 71-72, 74.       Trial

defense counsel then asked for an offer of proof as to what information the

Commonwealth intended to solicit from Detective Reinhold with these

statements.    The Commonwealth explained that after defense counsel had

asked the detective whether he took descriptions of the killer from Kennedy

                                      -7-
J-A04019-17


and Cruz, “[w]hat [the Commonwealth] propose[d] to do [was] ask

Detective Reinhold to complete the description which was given.” Id. at 72-

73. Defense counsel stated that he had “no problem with that.” Id. at 73.

     On re-direct, Detective Reinhold testified as follows:

     Q.     Detective Reinhold, [defense] counsel asked you some
     questions about statements that you took from other individuals,
     specifically a Robert Kennedy and a Nick Cruz, I believe.
     Referring first to a document that has been marked for
     identification as C-8 . . . , could you tell us what that is?

     A.    This is the interview . . . that I took from Robert Kennedy
     on October 14th, 1998 at 8:25 p.m. in reference to the murder
     of James Crawford.

     Q.    Counsel asked you about descriptive information that was
     given to you by that witness. Could you please – and I believe I
     can refer you to page 3 of that document, correct me if I’m
     wrong. . . . Does the witness in fact give you descriptions of two
     men that he saw at Leithgow and Indiana on October 11th,
     1998?

     A.    Yes, he does.

     Q.    Could you tell us what those description[s] are?

     A.    “Describe the man who asked you if you had weed.”

            “Hispanic male, 18 to 19 years, short, medium-
     complected, clean-shaven, black, short hair wearing a black
     flight jacket. I think he had overalls underneath the jacket. He
     had the jacket pulled up on his chin but I could still see his face.
     I’ll never forget his face. He was shorter than me, maybe 5’5”.”

           “Describe the man who shot Jazzie.”

           “He was tall, about six feet to 6’1, Hispanic male, 27 to 28,
     thin build, wearing red striped hoodie, like a regular pullover
     shirt with a hood on it and sunglasses.” . . .

     Q.    Could you tell us what descriptions Mr. Cruz gave you.

                                    -8-
J-A04019-17


      A.    “Question: Describe the shooter.

            “Answer: He was a light-skinned black male or Hispanic
      male, 20 to 25 years old, 6’1, thin build, clean-shaven, wearing
      a grayish or bluish coat with a hood attached and lines going
      down the coat. It looked like different colored stripes. The main
      color was all blue. He was wearing gold-rimmed glasses with
      dark lenses.

            “Question: Describe the Number 2 black male.

            “Answer: He was a black male, his face was covered by
      the blue zippered jacket, 5’8, 165 pounds, dark-complected, low
      cut black hair.”

N.T., 12/28/99, at 73-76.

      Later, during the closing jury charge, the trial court gave the following

instructions:

      The defendant is not on trial on charges relating to drug dealing.
      You must not regard this evidence as showing that the defendant
      is a person of bad character or criminal tendencies from which
      you might be inclined to infer guilt.      If you find that the
      defendant is guilty of the crimes charged in this case it must be
      because you are convinced by the evidence that he committed
      the crimes charged in this case and not because you believe that
      he is wicked or has committed any other offense. . . .

      Ladies and Gentlemen, you may find the defendant guilty of a
      crime without finding that he personally engaged in the conduct
      required for commission of that crime. A defendant is guilty of a
      crime if he is an accomplice of another person who commits that
      crime. . . . He is an accomplice if with the intent of promoting or
      facilitating the commission of the crime he aids, agrees to aid or
      attempts to aid the principal in planning or committing the
      crime. You may find the defendant guilty of the crime on the
      theory that he was an accomplice as long as you are satisfied
      beyond a reasonable doubt that the crime was committed and
      that he defendant was an accomplice of the person who
      committed it. . . .

      First degree murder is a murder in which the killer has specific
      intent to kill. . . . [T]he killer [killed Crawford] with the specific
                                      -9-
J-A04019-17


      intent to kill and with malice. . . . All that is necessary is that
      there be time enough so that the killer can and does fully form
      an intent to kill and is conscious of that intention.        When
      deciding whether the killer had the specific intent to kill, you
      should consider all the evidence regarding his words and conduct
      and the attending circumstances that may show his state of
      mind.

N.T., 12/30/99, at 15-17, 25-26.

      The Supreme Court described the outcome of Appellant’s trial as

follows:

      [The] jury found Appellant . . . guilty of, inter alia, first-degree
      murder for shooting and killing James Crawford.1 Following a
      penalty-phase hearing, the jury found one aggravating
      circumstance2 and no mitigating circumstances and accordingly,
      returned a verdict of death. On January 11, 2000, the trial court
      formally imposed a sentence of death.3 Appellant filed timely
      post-trial motions, which the trial court denied.
           1
              The jury also found Appellant guilty of robbery, criminal
           conspiracy, possessing an instrument of crime, and carrying a
           firearm without a license. [The jury made no finding as to
           second- or third-degree murder. Verdict Report, 12/30/99, at
           1, R.R. at 5997a.]
           2
              The aggravating circumstance the jury found was that
           Appellant committed the murder during the perpetration of a
           felony. See 42 Pa.C.S. § 9711(d)(6).
           3
            Appellant was also sentenced to consecutive terms of ten to
           twenty years in prison for each of his convictions for robbery
           and criminal conspiracy but received no additional penalty for
           his convictions for possessing an instrument of crime and
           carrying a firearm without a license.

Ramos, 827 A.2d at 1196. During the penalty phase, the trial court gave

the following jury instruction:

      In this case under the sentencing code only the following, if
      proved to your satisfaction beyond a reasonable doubt, can be
      found to be an aggravating circumstance; that is that the
                                     - 10 -
J-A04019-17


     defendant committed a killing while in the perpetration of a
     felony. In order to find this aggravating circumstance all of you
     must be convinced beyond a reasonable doubt that the
     defendant committed the killing and was not merely an
     accomplice or co-conspirator of the person who actually
     committed the killing. You may find this to be an aggravating
     circumstance in this case only if you are unanimously convinced
     beyond reasonable doubt of this aggravating circumstance.

N.T., 1/11/00, at 65-66 (emphasis added). The jury’s verdict at the penalty

phase thus was rendered in light of this instruction, and the jury thus found

that Appellant actually was a principal in the killing of Crawford, and not

merely an accomplice to the crime.       Ramos, 827 A.2d at 1196 (“The

aggravating circumstance the jury found was that Appellant committed the

murder during the perpetration of a felony”).

     Under the Judicial Code, 42 Pa.C.S. § 9711(h), the Supreme Court of

Pennsylvania must review the sufficiency of the evidence in all cases in

which a defendant is sentenced to death. After conducting that review, the

Pennsylvania Supreme Court held:      “Given this record, we agree with the

trial court that the evidence was clearly sufficient to sustain Appellant’s

conviction for first-degree murder.” Ramos, 827 A.2d at 1198. The Court

also observed:

     In his second and third claims [made in his direct appeal to the
     Supreme Court], Appellant essentially argues that trial counsel
     was ineffective for failing to object to the trial court’s jury
     instruction on accomplice liability and for failing to file a motion
     in limine in order to redact references to drugs i[n A]ppellant’s
     statement to the police. . . . [T]he proper procedure is for this
     court to dismiss Appellant’s ineffectiveness claims without
     prejudice to Appellant to raise those claims in a petition filed
     pursuant to the Post-Conviction Relief Act[.]


                                    - 11 -
J-A04019-17


Id. at 1198-99.       The Supreme Court affirmed the verdict, and the United

States Supreme Court denied certiorari.

       On July 7, 2004, Appellant timely filed the current PCRA petition.6 On

July 27, 2005, Appellant filed a motion for discovery, requesting the

photographic array that had been shown to Davis and “all Philadelphia Police

Department files, including homicide files, pertaining to the investigation and

prosecution of [Appellant] and co-defendant Michael Cent[e]no for the

murder of James Crawford.”             Pet’r’s Mot. for Discovery, 7/27/05, at 1.

Appellant argued that “the police files likely contain information that pertains

not only to [Appellant]’s innocence or guilt in the death of Mr. Crawford, but

also to mitigating factors warranting the imposition of a non-death penalty

sentence.” Id. at 7 ¶ 14. Appellant added that he should “be given a full

opportunity to conduct a meaningful investigation into all evidence in this

case, including any leads, alternative theories, or additional witnesses

considered by police.          The police files would likely contain any such

information and would therefore be invaluable[.]”            Id. at ¶ 16.     On

November 7, 2005, the PCRA court held a hearing on this first discovery

motion and denied it, concluding that it was a “fishing expedition[.]” N.T.,

11/7/05, at 29.




____________________________________________
6
  The PCRA petition was heard by the same judge who presided over
Appellant’s jury trial.


                                          - 12 -
J-A04019-17


         On August 31, 2007, Appellant filed a second motion for discovery,

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), seeking (1)

information about the Commonwealth’s compensation of or agreement with

Davis, (2) Philadelphia Police Department log entries relating to an individual

named “Will,” (3) the Commonwealth’s file for co-defendant Centeno, and

(4) any Commonwealth files relating to any investigation of a suspect named

“Santos Roland,” who was identified as a possible suspect in an Investigation

Interview Record. In support of his request for the police department logs,

Appellant wrote:

         [Appellant] believes that Ms. Davis misidentified [Appellant],
         confusing him with “Will,” another individual who frequented the
         drug corners in the area who is the actual shooter.

         Ms. Davis’s testimony gives good cause to believe that
         Philadelphia Police Department Incident Logs for the 25th Police
         District contain entries during the relevant time period relating to
         an individual known as “Will.” [Appellant]’s pleading gives good
         cause to believe that such entries refer to someone other than
         him. Collectively, they establish good cause to believe that
         Philadelphia Police Department Incident Logs for the 25th Police
         District contain entries during the relevant time period relating to
         police knowledge of the existence and activities of an individual
         other than [Appellant], known as “Will,” who may be the shooter
         in this case.

Pet’r’s Mot. for Discovery Pursuant to Brady v. Maryland, 8/31/07, at 10

¶¶ 45-46. With respect to his renewed request for the Commonwealth’s file

on Centeno, Appellant asserted: “The Commonwealth’s file for Mr. Centeno

likely     contains    potentially   exculpatory    information     demonstrating

[Appellant]’s innocence.” Id. at 12 ¶ 55.



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J-A04019-17


      On October 18, 2007, the PCRA court held a hearing on Appellant’s

second discovery motion. Regarding Appellant’s request for any information

about any compensation of Davis by the Commonwealth for her testimony,

Appellant claimed, “We don’t know what she got, it was something.” N.T.,

10/18/07, at 5. Appellant continued: “So to date, we’ve never gotten any

confirmation from the [District Attorney]’s office that this occurred, but we

believe that it did occur.” Id. The Commonwealth replied that “nothing was

given to her.” Id. at 9.

      During this hearing, Appellant also maintained that Davis had chosen

someone named “Will” while viewing the photographic array; Appellant

complained that no discovery was given to him “about who this person Will

was.” N.T., 10/18/07, at 11. Appellant thus requested the log entries from

the Philadelphia Police Department’s 23rd District station in order to

determine whether there was anyone by the name of “Will” who was

arrested or investigated in relation to this case. The PCRA court suggested

that Davis “identified [Appellant] whose name was Wilfredo, and she

referred to him as Will.”    Id.   The Commonwealth replied that, except for

Appellant,   there   was    no   one   else     named   “Will”   connected   to   the

investigation: “There’s just Wil-fre-do. There is no other Will.” Id. at 12.

The Commonwealth again insisted that Appellant’s discovery request was “a

classic fishing expedition.” Id. at 16. The Commonwealth also stated that it

had “nothing exculpatory, or [it] would have turned it over already.” Id. at



                                       - 14 -
J-A04019-17


18. At the close of the hearing, the PCRA court denied Appellant’s second

discovery motion. Id. at 21.

      On April 17, 2008, the PCRA court vacated Appellant’s death sentence

“based upon the Commonwealth’s agreement not to contest [Appellant]’s

request for a new penalty hearing based upon ineffective assistance of trial

counsel at the penalty hearing for failure to investigate and present certain

mitigation evidence.” Order, 04/17/08. The court took no additional action

on Appellant’s other grounds for PCRA relief at that time. Appellant is now

serving a life sentence without the possibility of parole.

      Between 2008 and 2012, the PCRA court held nine days of PCRA

hearings. At a hearing on July 14, 2008, Kennedy testified that Davis was

high on drugs at the time of the killing. N.T., 7/14/08, at 56-59, 138; N.T.,

7/15/08, at 15. Kennedy also testified he had told police that he had not

seen the shooting, because he was inside the bar when he heard shots, and

that Crawford was already shot when he “came outside” the bar.          N.T.,

7/14/08, at 45, 68-69, 76.     Kennedy continued that, when he returned to

the bar, he was told that a detective was “looking for” him, and he then

“walked up to them,” after which “they asked [him] a bunch of questions.”

Id. at 69. When shown his first police statement, in which he described a

man holding a gun immediately following the shooting, Kennedy testified

that “the officer . . . typed that” and that “[h]e never asked me questions

like while we were at the desk and he was typing. . . . he didn’t ask

[Kennedy] line by line while he typed it.” Id. at 75-76. Kennedy added that
                                     - 15 -
J-A04019-17


he had not read this first statement before signing it; he did not recognize

his second statement; and he did not identify Appellant as the shooter at

any time. Id. at 84-86.

     Kennedy further testified that he had felt compelled to sign the two

statements after the police had referenced his open bench warrants. N.T.,

7/14/08, at 71-74 (“I kept looking at the door . . . waiting for a sheriff to

come in and arrest me for my bench warrants”).         Kennedy added that he

had viewed a photographic array with eight photographs and that the police

had asked him, “Have you ever seen him before?” Kennedy testified that he

had identified Photograph # 5 on the array in response to that question;

however, Appellant’s photograph was # 2 on the array. Id. at 80-81, 84.

     On July 15, 2008, Appellant’s direct appeal counsel testified and was

asked why he limited the number of issues he raised in the case:

     [Q. W]hy did you not raise any issues other than the three
     that we’ve discussed above? Did you come up with any and
     decide not to raise them?

     A.    No, those are the only ones I could find.

     Q.    Were there any tactical or strategic reasons –

     A.    No.

     Q.    -- for not raising any other meritorious issues other than
     those three?

     A.    No, I just raised whatever I could find.

N.T., 7/15/08, at 174-75.




                                   - 16 -
J-A04019-17


      At the beginning of the PCRA hearing on September 25, 2008,

Appellant made a discovery request for Centeno’s polygraph tests.           N.T.,

9/25/08, at 4.    Appellant argued that the test was discoverable, even if it

was not admissible.      Id. at 4-5.    The Commonwealth answered that

Appellant “not receiving the polygraph results in no way impedes [his] ability

to call Centeno as a witness.”    Id. at 9-10.   The PCRA court denied this

additional discovery request by Appellant. Id. at 11.

      Appellant’s trial counsel testified on September 25 and 26, 2008, and

April 27, 2009.   Trial counsel testified that he hired a private detective to

investigate the case; the private investigator accompanied trial counsel to

the crime scene one time, prepared a sketch and took photographs of the

crime scene, and interviewed Appellant.       N.T., 9/25/08, at 30, 136-39.

When asked if he “expected” to “be responsible for performing the rest of

the factual investigation and pretrial preparation” himself, trial counsel

answered affirmatively. Id. at 139.

      Trial counsel confirmed that Davis was the only witness who testified

at the preliminary hearing.    N.T., 9/25/08, at 35.    Trial counsel testified

about the photographic array shown to Davis as follows:

      Q.    When you received the initial discovery package from the
      Commonwealth, you were invited to go to the district attorney’s
      office to review, specifically, to review photos and physical
      evidence, correct?

      A.   Yeah.       That was one of the things that [the
      Commonwealth] said in [its] cover letter to me that if I had any
      requests for information I could get in touch with the DA’s office.

                                    - 17 -
J-A04019-17


     Q.    And you did not do that, correct?

     A.    I did not.

     Q.   Am I correct that prior to trial you had not seen any of the
     hundred or so photographs that Miss Davis had been shown on
     the machine, correct?

     A.    I did not.

     Q.   And nor did you have any knowledge as to what
     parameters had been input into the imaging machine which
     generated that array, correct?

     A.    That is true.

     Q.   And you would have needed to have that information,
     would you not, in order to consider whether a motion to
     suppress this identification was warranted?

     A.    That is true.

     Q.   You wouldn’t have been able to determine whether this
     photographic array was unduly suggestive without having seen
     the whole array or the parameters that were put into the
     machine, correct?

     A.    I think that’s a fair statement, yes.

Id. at 105-06.

     Trial counsel gave the following additional testimony:

           •     He was provided with statements from six police officers

     involved in the investigation — Officers Serrano, Spicer, Long,

     Simpson, and Coleman and Sergeant Palumbo — but he did not

     interview or contact any of them prior to trial. N.T., 9/25/08, at 47.

           •     He “had no strategic or tactical reason for not objecting to”

     Detective Reinhold’s testimony. N.T., 9/25/08, at 185.

                                    - 18 -
J-A04019-17


              •      He “was not of the impression that [Appellant] had any

        mental problems.” N.T., 4/27/09, at 62. He explained that Appellant

        “always seemed to be able to communicate”; “[Appellant] answered all

        my questions. When he had questions, I tried to answer his questions

        and it seemed to me there was pretty good communication between

        the two of us.” N.T., 9/25/08, at 177.

        Trial counsel stated that his trial strategy was to argue that Centeno

was the killer, not Appellant. N.T., 4/27/09, at 61. He explained that the

reason he chose not to move to suppress Appellant’s police statement was

that the statement was in line with this alternative theory of the case — that

is, “that [Appellant’s] uncle [Centeno] was the shooter.” Id.

        When the PCRA hearings resumed on May 24, 2010, the PCRA court

heard testimony about Appellant’s cognitive abilities from defense expert

Carol    L.   Armstrong,     Ph.D.,    a    neuropsychologist   and   University   of

Pennsylvania professor.        N.T., 5/24/10, at 65-68.    Dr. Armstrong testified

that Appellant has a “significant intellectual disability” and “mild mental

retardation.”     Id. at 79, 83.      She added that the Appellant’s IQ has been

tested repeatedly and demonstrated a steady decline, with his most recent

full-scale IQ being only 65.7 Id. at 81. The next day, Appellant’s mother



____________________________________________
7
  When Appellant’s IQ was first tested in 1989, his IQ was 73. In 1999, his
IQ was 71, and, by 2000, it was 70. Most recently, in 2006, his IQ was 65.
N.T., 5/24/10, at 81.


                                           - 19 -
J-A04019-17


testified that Appellant’s primary language is English, not Spanish.          N.T.,

5/25/10, at 277, 290, 351.

       After another delay of over a year and a half due to witness and

counsel unavailability, the PCRA hearing resumed on January 4 and 5, 2012,

with   additional   testimony   about    Appellant’s    mental    abilities   from

Commonwealth witness Dr. John Sebastian O’Brien, who practices general

and forensic psychiatry.   N.T., 1/14/12, at 16.       Dr. O’Brien testified that

Appellant suffers from a “cognitive disorder not otherwise specified” and

“clearly has deficits in IQ testing.” Id. at 111; N.T., 1/15/12, at 17.

       On January 16, 2015, the PCRA court issued an order denying

Appellant’s remaining grounds for PCRA relief.         Appellant then filed this

timely appeal, in which he raises the following eleven issues:

       1.    Whether the PCRA court erred in finding that the jury
       instructions in  [Appellant]’s trial did   not   contravene
       Commonwealth v. Huffman[, 638 A.2d 961 (Pa. 1994)]?

       2.    Whether trial counsel’s failure to interview key witnesses,
       request discovery from the Commonwealth, and examine
       evidence used at trial constitutes ineffective assistance of
       counsel?

       3.    Whether the Commonwealth’s failure to disclose and to
       correct discrepancies between a witness’s statements and an
       investigation interview record violated [Appellant]’s due process
       rights?

       4.   Whether trial counsel was ineffective for failing to call two




                                     - 20 -
J-A04019-17


       witnesses[8] who were available to provide testimony that
       contradicted the Commonwealth’s sole eyewitness?

       5.     Whether trial counsel was ineffective for failing to object to
       hearsay statements introduced by the Commonwealth in
       violation of [Appellant]’s rights to confront his accusers under
       the United States and Pennsylvania Constitutions?

       6.    Whether trial counsel was ineffective for failing to seek to
       suppress [Appellant]’s coerced and involuntary statement to
       police, or to object to the introduction of the statement at trial?

       7.    Whether the introduction of “other crimes” evidence,
       specifically [Appellant]’s unrelated past involvement in drug
       dealing, violated his due process rights?

       8.    Whether the lack of a complete appellate transcript
       deprived [Appellant] of his right to meaningful appellate review
       under Article V, § 9 of the Pennsylvania Constitution?

       9.    Whether      [Appellant]’s    appellate    counsel   provided
       ineffective assistance by failing to raise meritorious constitutional
       claims on direct appeal?

       10. Whether the cumulative errors made by trial counsel, the
       Commonwealth, and the lower court entitle [Appellant] to a new
       trial?

       11. Whether the PCRA court erred in denying [Appellant]’s
       three discovery motions?

Appellant’s Brief at 2-4 (reordered to facilitate disposition).

       Our standard of review of a PCRA court’s denial of a PCRA petition is

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

the record evidence and free of legal error.       Commonwealth v. Wilson,

____________________________________________
8
  Although Appellant’s Statement of the Questions mentions “two witnesses,”
the argument in his brief discusses only one, Kennedy. See Appellant’s Brief
at 61-64. We therefore will consider only the failure to call that witness.


                                          - 21 -
J-A04019-17


824 A.2d 331, 333 (Pa. Super.) (en banc), appeal denied, 839 A.2d 352

(Pa. 2003).     Additionally, “[a] PCRA court passes on witness credibility at

PCRA hearings, and its credibility determinations should be provided great

deference by reviewing courts.”          Commonwealth v. Raymond Johnson,

966 A.2d 523, 539 (Pa. 2009).

               Jury Charge under Commonwealth v. Huffman
                           (Appellant’s Issue 1)

       Appellant first contends that the jury charge on shared specific intent

failed to comply with Commonwealth v. Huffman, 638 A.2d 961 (Pa.

1994). He also contends that his trial counsel was ineffective for failing to

object to this aspect of the charge and in failing to request an appropriate

charge under Huffman. Appellant’s Brief at 24-25, 31.9

       In Huffman, our Supreme Court addressed an instruction that failed

to tell the jury that it could find an accomplice guilty of murder in the first

degree only if the accomplice had a specific intent to kill.    The Court held

that such a charge was a misstatement of the law on a fundamental issue
____________________________________________
9
  In Appellant’s Statement of Questions Involved pursuant to Pa.R.A.P.
2116, his first issue raised before this Court on appeal is: “Whether the
PCRA court erred in finding that the jury instructions in [Appellant]’s trial did
not contravene Commonwealth v. Huffman?” Appellant’s Brief at 2 ¶ 1.
That question does not raise any issue regarding ineffectiveness of counsel.
Rule 2116(a) provides: “No question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.” Because
we find Appellant’s claim under Huffman to be without merit, we need not
decide whether to hear a claim that counsel was ineffective in failing to
make that claim. “[C]ounsel cannot be considered ineffective for failing to
pursue a meritless claim.” Commonwealth v. Lopez, 739 A.2d 485, 495
(Pa. 1999), cert. denied, 530 U.S. 1206 (2000).


                                          - 22 -
J-A04019-17


relating to culpability and, thus, was harmful error depriving the defendant

of a fair trial. 638 A.2d at 962. The Court emphasized that the charge must

tell the jury that to find an accomplice guilty of first-degree murder, it must

find that the accomplice harbored a specific intent to kill, and it is not

sufficient to find only that such an intent was harbored by the principal.

Id.

      The disputed jury instruction at issue here stated:

      A defendant is guilty of a crime if he is an accomplice of another
      person who commits that crime. . . . He is an accomplice if with
      the intent of promoting or facilitating the commission of the
      crime he aids, agrees to aid or attempts to aid the principal in
      planning or committing the crime. You may find the defendant
      guilty of the crime on the theory that he was an accomplice as
      long as you are satisfied beyond a reasonable doubt that the
      crime was committed and that the defendant was an accomplice
      of the person who committed it. . . .

      First degree murder is a murder in which the killer has specific
      intent to kill. . . . [T]he killer [killed Crawford] with the
      specific intent to kill and with malice. . . . All that is necessary
      is that there be time enough so that the killer can and does fully
      form an intent to kill and is conscious of that intention. When
      deciding whether the killer had the specific intent to kill, you
      should consider all the evidence regarding his words and conduct
      and the attending circumstances that may show his state of
      mind.

N.T., 12/30/99, at 25-26 (emphases added).

      Appellant contends that he was charged with murder either as an

accomplice or as a principal, and that, with respect to his potential

culpability as an accomplice, the PCRA court erred in finding that the jury

charge on shared specific intent did not violate Huffman. Appellant argues

that the instruction misled the jury into believing that, if the killer had the
                                     - 23 -
J-A04019-17


specific intent to kill, then the killer’s intent alone is sufficient for the jury to

find first degree murder, irrespective of what the accomplice’s intent

was. Thus, according to Appellant, even if the jury concluded that Centeno

shot the victim and that Centeno alone had the specific intent to kill, the

instruction misled the jury into believing that it could convict Appellant of

first-degree murder, regardless of Appellant’s own personal intent.               He

maintains that the charge “impermissibly relieved the Commonwealth of its

burden to prove the specific intent element of first-degree murder, violating

[Appellant]’s Fourteenth Amendment due process rights.” Appellant’s Brief

at 28.   Appellant contends that the trial court’s “improper instruction on

shared specific intent for murder was not harmless error[,]” because “the

Commonwealth cannot demonstrate beyond a reasonable doubt that this

error could not have contributed to the guilty verdict.”          Id. at 30 (citing

Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978)).

      Appellant argues further that, as he was not convicted of second- or

third-degree murder, the life sentence he is now serving cannot ameliorate

any prejudice suffered as to the instruction for first-degree murder.

Furthermore, the jury instructions and findings from the penalty phase of his

capital trial cannot cure a constitutional defect that occurred during the

earlier guilt phase. Appellant’s Reply Brief at 9-12. Accordingly, Appellant

demands a new trial.

      The Commonwealth contends that Appellant is reading the charge out

of context. The Commonwealth points out that the trial court first instructed
                                       - 24 -
J-A04019-17


the jury on the definition of an accomplice, including the requisite intent,

and then instructed the jury on the elements of murder of the first degree,

specifying that murder of the first degree requires “the specific intent to kill.”

When read in their entirety, the court’s instructions told the jurors that, in

order to convict a defendant as an accomplice to murder in the first degree,

they had to find that he had the specific intent to promote or to facilitate

“the crime” – i.e., murder of the first degree. Commonwealth’s Brief at 21-

22. The Commonwealth continues that, even if the instructions were flawed,

Appellant did not suffer any prejudice, because “the record shows that the

jury found that he committed the killing himself. The jury’s penalty phase

verdict found that [Appellant] was guilty as a principal, not as an

accomplice.” Id. at 25.

      The PCRA court’s disposition of this issue echoed the argument by the

Commonwealth:

      In the case sub judice, this court’s charge, when read in its
      entirety, as it should be, appropriately and unambiguously
      communicated to the jury that [Appellant] must possess the
      specific intent to kill in order to be found guilty of first-degree
      murder, regardless of whether he was the principal or an
      accomplice.

PCRA Ct. Op. at 14 (citing Commonwealth v. Simpson, 754 A.2d 1264,

1275 (Pa. 2000), cert. denied, 533 U.S. 932 (2001)).

      The Supreme Court has instructed:

      [W]hen reviewing the adequacy of a jury instruction, we must
      consider the charge in its entirety to determine if it is fair and
      complete. Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d
      655, 669 (2007); Commonwealth v. Murphy, 559 Pa. 71, 739
                                     - 25 -
J-A04019-17


      A.2d 141, 146 (1999); Commonwealth v. Stokes, 532 Pa.
      242, 615 A.2d 704, 709 (1992); Commonwealth v.
      Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990). The trial
      court has broad discretion in phrasing the charge and the
      instruction will not be found in error if, taken as a whole, it
      adequately and accurately set forth the applicable law.
      Prosdocimo, supra. This was the governing precedent prior to
      Huffman and was followed in cases immediately thereafter.
      See Commonwealth v. Thompson, 543 Pa. 634, 674 A.2d 217
      (1996); [Commonwealth v.] Chester[, 587 A.2d 1367 (Pa.
      1991)].

Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa. 2009).                         Upon

reviewing the charge as a whole and considering the jury’s verdict in its

entirety, we conclude that no relief is due on this issue.

      Preliminarily, we note that Huffman and its progeny relate to jury

instructions on accomplice liability.      Here, the jury found that Appellant

actually killed Crawford, and thus was a principal, and not an accomplice.

Ramos, 827 A.2d at 1196 (“The aggravating circumstance the jury found

was that Appellant committed the murder during the perpetration of a

felony”); see also N.T., 1/11/00, at 65-66.             Accordingly, Huffman is

inapplicable to the facts of the current case.

      Appellant argues that because the jury’s finding that Appellant was the

shooter   did   not   become   clear   until    the   jury   made   its   aggravated

circumstances finding during the penalty phase of his trial, we should not

consider this fact in our analysis. Appellant cites no case directly supporting

this argument, and we find it unpersuasive. Simply put, Appellant asks us to

speculate that the jury may have found Appellant guilty as an accomplice

during the guilt phase of his trial but then sentenced him to death as a
                                       - 26 -
J-A04019-17


principal during the penalty phase.         Appellant cites no basis for such a

bizarre theory, and nothing in the record supports it.              Accordingly, we

conclude that even if the jury charge on accomplice liability had been

erroneous, that error would not have harmed Appellant because he was

convicted as a principal.

      We further conclude, however, that the jury charge was not erroneous

with respect to accomplice liability.       In Daniels, 963 A.2d at 431, the

Supreme Court approved the following jury instruction as to the requisite

individual specific intent to kill to support accomplice liability in a first-

degree murder case:

      Under the law of Pennsylvania you may find a Defendant guilty
      of a crime without finding that he personally engaged in the
      conduct required for commission of that crime or even that he
      was personally present when the crime was committed. A
      Defendant is guilty of a crime if he is an accomplice of another
      person who commits that crime. . . . He is an accomplice if, with
      the intent of promoting or facilitating commission of the crime,
      he solicits, commands, encourages, requests the other person to
      commit it, or aids, agrees to aid, or attempts to aid the other
      person in planning of committing it. . . .

      If an intention to kill exists, or if a killing was consciously done
      with knowledge of such consequences, or if the killer consciously
      decided to kill the victim, the killing is willful. If this intent to kill
      is accompanied by such circumstances as evidence or
      demonstrate a mind fully conscious of its own purpose and
      design to kill, it is deliberate....

The Supreme Court emphasized that, “when reviewing Huffman-type

challenges, courts must follow the well-settled requirement that the

challenged jury charge is to be examined in its entirety.”          Id. at 430.    In

Daniels, “[a]fter reviewing the charge in its entirety,” the Court “concluded
                                       - 27 -
J-A04019-17


that, read as a whole, the charge sufficiently instructed the jury regarding

the requirement that an individual must possess the specific intent to kill in

order to convicted of first-degree murder.” Id.; see also id. at 432.

      Similarly, in Commonwealth v. Thompson, 674 A.2d 217, 218 (Pa.

1996), the Supreme Court approved of the following jury instruction:

      You may find that the Defendant is guilty of a crime without
      finding that he personally performed the act or engaged in the
      conduct that is required to commit the crime.

      The Defendant is guilty of a crime if he’s an accomplice of
      another person who commits the crime. He’s an accomplice if
      with the intent to promote or facilitate the commission of the
      crime he either solicits, encourages, commands or requests the
      other person to commit it or he aids or agrees to aid or attempts
      to aid the other person in planning or committing it.

      You may find the Defendant guilty of the crime on the theory
      that he was an accomplice as long as you’re satisfied beyond a
      reasonable doubt that the crime was committed and that the
      Defendant was an accomplice of the person who committed it.

Id. at 222–23 (citation omitted). The Court observed, “This portion of the

charge was preceded by the definitions of the different degrees of murder

and the definition of specific intent which is required to find a person guilty

of first degree murder.”   Id. at 223.   In upholding the charge, the Court

stated:

      The charge in Huffman incorrectly advised the jury that they
      could find the defendant guilty of first degree murder if either he
      or his co-conspirator possessed the necessary specific intent to
      kill at the time of the murder. In contrast to Huffman, the
      charge in the instant case correctly stated the law as to the
      liability of an accomplice in the commission of the crime.

Id. at 222.

                                    - 28 -
J-A04019-17


      The PCRA court concluded that the disputed jury instruction is

comparable to the instructions in Daniels and Thompson, and we agree.

As in those cases, the court initially instructed on accomplice liability,

stating, in words nearly identical to those in the Daniels and Thompson

charges, that a defendant “is guilty of a crime if he is an accomplice of

another person who commits that crime” and is an accomplice “if with the

intent of promoting or facilitating the commission of the crime he aids,

agrees to aid or attempts to aid the principal in planning or committing the

crime.”   Then, it charged on the requirements for proof of first-degree

murder, including that “the killer has specific intent to kill” and acted “with

the specific intent to kill and with malice.” N.T., 12/30/99, at 16-17, 25-26.

Under Daniels and Thompson, the jury charge was valid.

      A case in which the Supreme Court of Pennsylvania found the jury

instruction on co-conspirator liability as to first degree murder to be deficient

provides us with further guidance. In Commonwealth v. Wayne, 720 A.2d

456 (Pa. 1998), cert. denied, 528 U.S. 834 (1999), the trial court gave the

following instruction on the legal culpability of the appellant as either an

accomplice or a co-conspirator:

      Now, with regard to co-conspirator, someone is liable even
      though he was the conspirator who had the state of mind as
      necessary. The person is guilty as a co-conspirator doesn’t
      have to have the same state of mind.

      In other words, two people conspire to kill someone, the person
      who pulls the trigger may have the intent to kill. It doesn’t
      matter whether the co-conspirator had it in his mind or
      not. He’s responsible.
                                     - 29 -
J-A04019-17



Id. at 463 (emphasis added and citation omitted). On appeal, the appellant

“assert[ed] that the charge misstated the law by informing the jury that

appellant could be guilty of first degree murder even though he did not

possess a shared specific intent to kill with his co-conspirators,” id. at 462

(emphasis in original), and the Supreme Court agreed.          Id. at 464.   By

comparison, none of the language rejected by the Supreme Court in Wayne

appears in the challenged jury instruction in the current action. Compare

id. at 463, with N.T., 12/30/99, at 16-17, 25-26.

      In conclusion, when read in its entirety, the jury charge was not

invalid under Huffman and its progeny.        Thus, the entirety of Appellant’s

first issue is meritless.

                     Issues Relating to Robert Kennedy
                   (Appellant’s Issues 2 (part), 3, and 4)

      Appellant raises several issues relating to the statements made by

Robert Kennedy prior to trial and to his counsel’s failure to investigate facts

relating to Kennedy and to call Kennedy as a witness.         During Kennedy’s

testimony at Appellant’s PCRA hearing, Kennedy made four statements

about the facts of this case that form the basis of all of these issues:

      •      First, Kennedy testified that Davis was high on drugs at the time

of the murder.       N.T., 7/14/08, at 56-59, 138; N.T., 7/15/08, at 15.

However, when initially interviewed by police, Kennedy never made any

statements about Davis’ sobriety or inebriety. See generally Investigation



                                     - 30 -
J-A04019-17


Interview Record of Kennedy, 10/14/98; Investigation Interview Record of

Kennedy, 11/12/98.

     •     Second, Kennedy testified that he had not seen the shooting,

N.T., 7/14/08, at 68-69, 76, which is consistent with Kennedy’s statements

to police. Kennedy had told police that he had “turned towards the bar . . .

[t]hen [he] heard a gunshot.” Investigation Interview Record of Kennedy,

10/14/98, at 2.   Kennedy never said that he had seen anyone pull the

trigger or had seen the bullet hit Crawford.           See generally id.;

Investigation Interview Record of Kennedy, 11/12/98.

     •     Next, Kennedy testified that Crawford was already shot when

Kennedy “came outside.”    N.T., 7/14/08, at 68.   His initial statement was

that, prior to the shooting, he had “turned towards the bar.” Investigation

Interview Record of Kennedy, 10/14/98, at 2. Neither the PCRA testimony

nor the statement reflect that Kennedy actually observed the shooting.

     •     Finally, Kennedy testified that he did not identify Appellant as

the shooter at any time. N.T., 7/14/08, 84-86. Nonetheless, Kennedy did

identify Appellant’s photograph from the array shown to him during his

second police interview.     Investigation Interview Record of Kennedy,

11/12/98, at 2. The Investigation Interview Record, id., has a handwritten

note that the photograph identified by Appellant as “the man that shot

James Crawford” was “PP # 768938 assigned to Wilfredo Ramos.”            The

Investigation Interview Record has no indication that Kennedy was ever told

that the photograph he selected was that of Appellant. See generally id.
                                   - 31 -
J-A04019-17


      In sum, between Kennedy’s statements to police in 1998 and his

testimony during the PCRA hearings in 2008, whether Kennedy identified

Appellant as the killer is the only source of direct conflict and potential

recantation. As noted above, during Appellant’s trial, Detective Reinhold had

testified that Kennedy had told him during his police interview “that Wilfredo

Ramos was the shooter,” without additional explanation. N.T., 12/28/99, at

69. In addition, Kennedy’s PCRA testimony made a claim about Davis’ lack

of sobriety that had not previously been in the record.

               Ineffective Assistance of Counsel Regarding Kennedy

      Appellant maintains that trial counsel was ineffective for failing to

interview, to investigate, and to call Kennedy as a trial witness. Appellant’s

Brief at 2 ¶¶ 2, 4 & at 34-36, 61-64.            To obtain relief under the PCRA

premised on a claim that counsel was ineffective, a petitioner must

demonstrate that (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his or her action or inaction; and (3)

petitioner     was    prejudiced   by   counsel’s    act   or   omission.   See

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). In this context,

a finding of “prejudice” requires the petitioner to show “there is a reasonable

probability that, but for the error of counsel, the outcome of the proceeding

would have been different.”        Commonwealth v. Stevens, 739 A.2d 507,

512 (Pa. 1999). If a petitioner fails to prove any of these prongs, then the

claim fails.    Id.   Where “the underlying claim is meritless, the derivative

claim of ineffective assistance of counsel for failing to object has no arguable
                                        - 32 -
J-A04019-17


merit.”      Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012);

Commonwealth v. Lopez, 739 A.2d 485, 495 (Pa. 1999), cert. denied,

530 U.S. 1206 (2000).

      Citing Kennedy’s PCRA testimony, Appellant insists that “Kennedy was

compelled to sign two statements after the police referred to his open bench

warrants.”    Appellant’s Brief at 35 (emphasis in original).   Appellant also

asserts that trial counsel had no reasonable, strategic basis for failing to

investigate or to interview Kennedy and that his failure to do so was not the

result of a lack of access, because trial counsel had asked the trial court to

order Kennedy to be held in Philadelphia County custody, so that he could be

brought to the courthouse each day of trial and be reached immediately, if

necessary.    Id. at 36-37; see also N.T., 12/27/99, at 64-66.      Appellant

broadly contends that trial counsel failed to “investigate the facts and

circumstances of [Appellant]’s case” and that this failure “constitutes

ineffective assistance of counsel.” Appellant’s Brief at 46. Appellant further

avers that this inactivity by trial counsel is unreasonable per se. Id. at 38;

see also id. at 46 (“Under these circumstances, trial counsel’s investigation

was unreasonably limited”).

      Appellant alleges that trial counsel’s failure to interview Kennedy

caused Appellant prejudice and affected the outcome of his trial, Appellant’s

Brief at 39-41, as follows: (1) Kennedy’s testimony would have undermined

Davis’s credibility, because Kennedy would have testified that Davis was

high on drugs when Crawford was shot, N.T., 7/14/08, at 57-59; and (2)
                                    - 33 -
J-A04019-17


Kennedy would have challenged Detective Reinhold’s statement that

Kennedy identified Appellant as the shooter, because Kennedy never saw

Crawford’s shooter, id. at 75-76, 85-86. Appellant also complains that trial

counsel did not ask the private investigator he hired to interview or to

attempt to interview any other alleged witnesses, and the investigator

therefore did not do so. N.T., 9/25/08, at 30, 135-39.10

       The Commonwealth answers, generally, that Appellant “bases his

claim on Kennedy’s recantation, years later, that asserted he did not see the

murder,” Commonwealth’s Brief at 27; however, “recantation has often been

recognized as one of the least reliable forms of after-discovered evidence.”

Commonwealth v. Busanet, 54 A.3d 35, 47 (Pa. 2012), cert. denied,

134 S. Ct. 178 (2013).

       The PCRA court determined that trial counsel was not ineffective for

failing to conduct an investigation into this issue. PCRA Ct. Op. at 21-29.11


____________________________________________
10
   Appellant further contends that trial counsel was ineffective in failing to
speak with the six police officers whose statements he had received as part
of pre-trial discovery. Appellant’s Brief at 48 (citing N.T., 9/28/05, at 47).
However, Appellant does not clarify how he believes he was prejudiced by
trial counsel’s failure to interview these police officers. See generally
Pierce, 527 A.2d at 975.
11
   In reaching this conclusion, the PCRA court cited only to the standard for
failure to call a witness. PCRA Ct. Op. at 21-22. Appellant maintains that
the PCRA court misunderstood his argument and thought that his only claim
was that trial counsel was ineffective for not calling certain witnesses,
whereas he was also challenging trial counsel’s failure to investigate certain
witnesses. Appellant’s Brief at 33-34. Since we resolve all of Appellant’s
claims about Kennedy’s potential testimony together and can affirm on any
(Footnote Continued Next Page)

                                          - 34 -
J-A04019-17


The PCRA court agreed with the Commonwealth that Kennedy’s testimony at

the PCRA hearing on July 14, 2008, was a recantation of “both of his police

statements claiming . . . that he . . . was . . . unaware of who, in fact, shot

the victim.”      Id. at 23 (citing N.T., 7/14/08, at 38-154). The PCRA court

concluded that “Kennedy’s PCRA recantation testimony . . . lacks credibility

and should be disregarded.” Id. at 27; see also id. at 28.

      We must defer to the credibility determinations of the PCRA court.

Raymond Johnson, 966 A.2d at 539.                     Since the PCRA court held that

Kennedy’s PCRA testimony “lacked credibility and should be disregarded” to

the extent it was at odds with Kennedy’s police statements and with the

testimony of all other witnesses, we therefore must discount it.                PCRA Ct.

Op. at 28. Although Kennedy’s PCRA testimony did not recant any earlier

statement that he saw Appellant commit the murder (since Kennedy made

no such earlier statement), it did depart from what Kennedy had earlier

stated about seeing the shooter after the shots were fired and his photo

identification.      The    PCRA     court     properly   exercised   its   discretion   in

disregarding this changed testimony.

      Because we must defer to the PCRA court’s credibility determinations,

all issues as to the potential effect of Kennedy’s PCRA testimony do not

merit relief.     Trial counsel cannot be found to have been ineffective for

                       _______________________
(Footnote Continued)
basis, Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009),
this distinction is inconsequential.


                                             - 35 -
J-A04019-17


failing to investigate or to call Kennedy as a potential defense witness

where, according to the PCRA court’s findings, Kennedy would not have

given any information inconsistent with that presented to the court.

“[C]ounsel cannot be considered ineffective for failing to pursue a meritless

claim.”   Lopez, 739 A.2d at 495 (Pa. 1999); see also Spotz, 47 A.3d at

122; Pierce, 527 A.2d at 975. Accordingly, the PCRA court’s denial of these

ineffectiveness claims was supported by the evidence of record and free of

legal error. See Wilson, 824 A.2d at 333.

               Brady Violation Regarding Kennedy’s Statements

      Appellant submits that the PCRA court erred in finding that the

Commonwealth did not violate Brady v. Maryland, 373 U.S. 83 (1963),

through its “failure to disclose and to correct discrepancies between

[Kennedy]’s statements and an investigation interview record.” Appellant’s

Brief at 2 ¶ 4. According to Appellant, these “discrepancies” are that “[t]he

Investigation Interview Record contains statements allegedly made by

Kennedy in which he describes the shooter,” but, “during the PCRA hearing,

Kennedy testified that he told detectives that he did not see the shooting

and could not describe, or identify, the shooter.” Id. at 56-57. Assuming

the truth of Kennedy’s PCRA testimony, Appellant further argues that the

PCRA court erred in failing to hold that the Commonwealth violated his due

process rights by not “correcting” the “false testimony” about Kennedy’s

initial statements that was presented at trial. Id. at 59-60. Appellant also

claims that his trial counsel was ineffective for failing to discover and to raise
                                     - 36 -
J-A04019-17


the alleged Brady violation.    Appellant’s Brief at 2 ¶ 4.        The PCRA court

rejected these claims. PCRA Ct. Op. at 30.

      To establish a Brady violation, “[A]ppellant must demonstrate:            (1)

the prosecution concealed evidence; (2) the evidence was either exculpatory

or impeachment evidence favorable to him; and (3) he was prejudiced.”

Commonwealth v. Treiber, 121 A.3d 435, 460–61 (Pa. 2015). As for the

second factor, “[e]xculpatory evidence is that which extrinsically tends to

establish defendant’s innocence of the crimes charged.” Commonwealth v.

Lambert,    765   A.2d   306,   325     n.15   (Pa.    Super.   2000);   see   also

Commonwealth v. Redmond, 577 A.2d 547, 552 (Pa. Super. 1990)

(“[e]xculpatory evidence includes material that goes to the heart of the

defendant’s guilt or innocence as well as that which might well alter the

jury’s judgment of the credibility of a crucial prosecution witness” (internal

quotation marks omitted) (citing Giglio v. U.S., 405 U.S. 150 (1972)));

Commonwealth v. Watson, 512 A.2d 1261, 1266 (Pa. Super. 1986)

(same as Lambert), appeal denied, 527 A.2d 540 (1987). “Brady does

not require the disclosure of information that is not exculpatory but might

merely   form   the   groundwork      for   possible   arguments    or   defenses.”

Commonwealth v. Roney, 79 A.3d 595, 608 (Pa. 2013) (citations and

internal quotations omitted), cert. denied, 135 S. Ct. 56 (2014).

      Critically, Appellant cannot demonstrate that the evidence allegedly

withheld by the Commonwealth — specifically, that there were discrepancies

between what Kennedy actually told police during his interview after the
                                      - 37 -
J-A04019-17


shooting and what was recorded in the typed investigation interview record

— was exculpatory.     The PCRA court found no such discrepancies and

rejected Kennedy’s assertions at the PCRA hearing that the Commonwealth’s

summaries of his police interviews were inaccurate. Moreover, even if the

alleged discrepancies did exist, they would not establish Appellant’s

innocence of the crimes charged. Kennedy’s contention that he did not see

Appellant shoot Crawford does not establish that someone else shot

Crawford, and Kennedy does not claim to offer such evidence. Any of the

supposedly undisclosed evidence from the investigation interview record

therefore would not definitively establish Appellant’s innocence or someone

else’s guilt. See Redmond, 577 A.2d at 552.

       As Appellant fails to establish one prong of the Brady test, we need

not exam the remaining two prongs, because his entire Brady claim fails if

any one prong cannot be supported.     See Treiber, 121 A.3d at 460–61.

Since Appellant’s Brady challenge is meritless, any claim that his trial

counsel was ineffective with respect to seeking this Brady material also is

without merit. See Lopez, 739 A.2d at 495; see also Spotz, 47 A.3d at

122.

                       Confrontation Clause Claims
                          (Appellant’s Issue 5)

       As we summarized in Commonwealth v. Yohe, 79 A.3d 520 (Pa.

2013), cert. denied, 134 S. Ct. 2662 (2014):

       The Confrontation Clause of the Sixth Amendment, made
       applicable to the States via the Fourteenth Amendment, Pointer
                                   - 38 -
J-A04019-17


     v. Texas, 380 U.S. 400 . . . (1965), provides that “[i]n all
     criminal prosecutions, the accused shall enjoy the right ... to be
     confronted with the witnesses against him....” . . . Article I,
     Section 9 of the Pennsylvania Constitution . . . similarly
     provides: “In all criminal prosecutions the accused has a right
     . . . to be confronted with the witnesses against him.”

79 A.3d at 530-31 & n.10.      Insofar as is relevant here, the substantive

standards under the Pennsylvania Constitution do not differ from those

under its federal counterpart. See id. at 531 n.10.

     Appellant complains that during Detective Reinhold's trial testimony,

he referenced a statement made by Michael Centeno:

     Q.    Is it fair to say that the information which was furnished by
     [Appellant] was one of the basic matters which ultimately
     resulted in your arresting Michael Centeno and charging him with
     the murder of James Crawford?

     A.   That and the statement that Michael Centeno made that
     [Appellant] was the shooter.

N.T., 12/28/99, at 58. Trial counsel did not request that this reference be

stricken. See id. In addition, on re-direct examination, Detective Reinhold

read excerpts from the police statements by Kennedy and Nick Cruz in which

they described the two men they saw on the night of the shooting. Id. at

73-76.   Trial counsel did not object to that testimony either; in fact, trial

counsel specifically stated that he had “no problem with that.”    Id. at 73.

Thus, trial counsel did not preserve any challenge pursuant to the

Confrontation Clause to the references to or the reading of sections of these

three statements into the record.     Appellant contends that trial counsel




                                    - 39 -
J-A04019-17


rendered ineffective assistance of counsel for failing to preserve these

claims. Appellant’s Brief at 73.

      Appellant bases his Confrontation Clause claim on Crawford v.

Washington, 541 U.S. 36, 68-69 (2004).            In Yohe, the Pennsylvania

Supreme Court explained the rule of Crawford as follows:

      In Crawford, 541 U.S. at 51, . . . the Court held that the Sixth
      Amendment guarantees a defendant’s right to confront those
      “who ‘bear testimony’” against him, and defined “testimony” as
      “a solemn declaration or affirmation made for the purpose of
      establishing or proving some fact.” The Confrontation Clause,
      the High Court explained, prohibits out-of-court testimonial
      statements by a witness unless the witness is unavailable and
      the defendant had a prior opportunity for cross-examination.11
      Id. at 53–56. . . .
         11
           The Court described the class of testimonial statements
         covered by the Confrontation Clause as follows:

              Various formulations of this core class of “testimonial”
              statements exist: “ex parte in-court testimony or its
              functional equivalent — that is, material such as
              affidavits, custodial examinations, prior testimony that
              the defendant was unable to cross-examine, or similar
              pretrial statements that declarants would reasonably
              expect to be used prosecutorially;” “extrajudicial
              statements . . . contained in formalized testimonial
              materials, such as affidavits, depositions, prior
              testimony, or confessions;” “statements that were
              made under circumstances which would lead an
              objective witness reasonably to believe that the
              statement would be available for use at a later trial.”

         Crawford, 541 U.S. at 51–52 . . . (internal citations
         omitted).

      To further elucidate the distinction between testimonial and
      nontestimonial statements, the Court in Davis v. Washington,
      547 U.S. 813[, 822] (2006), addressed two types of statements
      to police and held that whether a statement is testimonial
      depends on its “primary purpose”:
                                     - 40 -
J-A04019-17



         Statements are nontestimonial when made in the course of
         police interrogation under circumstances objectively
         indicating that the primary purpose of the interrogation is
         to enable police assistance to meet an ongoing emergency.
         They are testimonial when the circumstances objectively
         indicate that there is no such ongoing emergency, and that
         the primary purpose of the interrogation is to establish or
         prove past events potentially relevant to later criminal
         prosecution.

79 A.3d at 531 (Pa. 2013) (brackets and some footnotes omitted).

      Appellant insists that “the testimony of Detective Reinhold, who read

into evidence statements given to the police by Centeno, Kennedy, and Cruz

without [Appellant] having had an opportunity to confront them on the

witness stand, was blatantly improper” under Crawford. Appellant’s Brief

at 66. In the alternative, Appellant asserts that, “[e]ven if Crawford does

not   apply,   admission   of   [Detective]   Reinhold’s   testimony     violated

[Appellant]’s Sixth Amendment right to confrontation under Ohio v.

Roberts, 448 U.S. 56 (1980).” Id. Appellant concludes that, due to this

violation of his Confrontation Clause rights and to trial counsel’s failure to

object to this violation, he should be granted a new trial. Id. at 76.

      On this issue, the PCRA court stated:

      Here, [Appellant] did not preserve a Confrontation Clause issue
      at trial; he is, therefore, not entitled to the retroactive
      application of Crawford.        Furthermore, in light of the
      overwhelming evidence of [Appellant]’s guilt, [Appellant] failed
      to establish that he was prejudiced by his trial counsel’s failure
      to object to Detective Reinhold’s reading into the record
      statements by Kennedy, Cruz, and Centeno, all of which
      identified him as the shooter. [Appellant] failed to show that
      had his counsel objected to this testimony, [Appellant] would
      have been acquitted. No relief is due.
                                    - 41 -
J-A04019-17



PCRA Ct. Op. at 20-21. In response, Appellant argues that the PCRA court

erred in holding that a preservation failure precludes him from asserting

claims under Crawford and that he was required to show that, had the

Confrontation Clause violation not occurred, he “would have been acquitted.”

Appellant’s Brief at 64 (quoting PCRA Ct. Op. at 20-21). Appellant maintains

that he could not have preserved any issue pursuant to Crawford, because

Crawford was not decided until after his trial. Id. at 65.12

       Although it does not argue that Crawford does not apply on collateral

review, the Commonwealth asserts that Appellant’s “Confrontation Clause

claim is waived and [that] his derivative ineffectiveness claim is meritless.”

Commonwealth’s Brief at 37.           The Commonwealth adds that, “[a]nalyzed

under the proper ineffectiveness standard, [Appellant] plainly cannot prove

prejudice from the detective’s unsolicited remarks on cross-examination.”

Id. at 38.13 The Commonwealth also declares that Appellant “cannot satisfy

the Crawford standard” because “Crawford prohibits the introduction of

formalized, testimonial statements of absent witnesses.        The prosecutor

elicited no such evidence.” Id. at 38-39 (citing 541 U.S. at 51-52).



____________________________________________
12
   Crawford was decided on March 8, 2004, while Appellant’s petition for
certiorari was pending following his direct appeal.
13
  We note that Detective Reinhold read excerpts from Robert Kennedy’s and
Nick Cruz’s police statements on re-direct examination, not on cross-
examination. See N.T., 12/28/99, at 71, 73-76.


                                          - 42 -
J-A04019-17


       In addressing Appellant’s ineffective assistance argument on this

issue, we again consider whether the underlying claim has arguable merit,

counsel had any reasonable strategic basis for his or her action or inaction,

and petitioner was prejudiced by counsel’s act or omission.        Pierce, 527

A.2d at 975. As to the first prong of this test, we assume that Appellant’s

claim has arguable merit, at least with respect to the use of the statements

by Kennedy and Cruz.         Although those two statements were not admitted

into evidence as exhibits, the prosecutor provided Detective Reinhold with

copies of Kennedy’s and Cruz’s statements and prompted the detective to

read specific excerpts from them into the record. Trial Exs. C-8, C-9; N.T.,

12/28/99, at 71-76.        Furthermore, these quotations were put forth by the

Commonwealth, as part of re-direct examination, to establish a consistent

description of the murderer by multiple witnesses.       Id.14   Kennedy’s and

Cruz’s statements thus were “declaration[s] or affirmation[s] made for the

purposes of establishing or proving some fact” — i.e., that the shooter

looked like Appellant and did not look like Centeno.      See Crawford, 541

U.S. at 51; Yohe, 79 A.3d at 531. Kennedy and Cruz were not unavailable;

they were both in Philadelphia custody and could be transported to the

courthouse for Appellant’s trial. N.T., 12/27/99, at 64-66. Therefore, under

the Confrontation Clause, the Commonwealth could have been required to
____________________________________________
14
  Appellant opened that line of questioning by asking on cross-examination
whether the statements showed that the shooter wore sunglasses. N.T.,
12/28/99, at 58, 65-69.


                                          - 43 -
J-A04019-17


produce Kennedy and Cruz as witnesses for confrontation by Appellant. See

Crawford, 541 U.S. at 51-52.15

       Appellant therefore could have asserted a Confrontation Clause claim

regarding these statements if his counsel had objected during trial.    See

Commonwealth v. Whitaker, 878 A.2d 914, 920 n.3 (Pa. Super.), appeal

denied, 891 A.2d 732 (Pa. 2005).16 Appellant’s counsel made no objection,

however. And during the PCRA hearings, trial counsel admitted that he “had

no strategic or tactical reason” for not objecting to Detective Reinhold’s

testimony. N.T., 9/25/08, at 185. Whether Appellant is entitled to relief on

____________________________________________
15
   We do not assume that Appellant’s claim with respect to Centeno’s
statement also has arguable merit, however. That statement was not read
to the jury. See N.T., 12/28/99, at 58. Furthermore, the only passing
reference to Centeno’s statement was elicited during cross-examination and
was not put forth by the Commonwealth. Id. The one-off comment made
by Detective Reinhold about Centeno’s remarks was not used
prosecutorially. Thus, it did not trigger the Confrontation Clause, and the
Commonwealth was not required to produce Centeno as a witness for
confrontation by Appellant. See Crawford, 541 U.S. at 51-52.
16
   Although the Supreme Court of Pennsylvania has held that “Crawford
does not apply to collateral review,” Commonwealth v. Carter, 932 A.2d
1261, 1265 n.3 (Pa. 2007), Appellant’s direct appeal was still pending when
Crawford was decided on March 8, 2004, and his appeal did not conclude
until March 22, 2004, when the United States Supreme Court denied
Appellant’s petition for a writ of certiorari. Ramos v. Pennsylvania, 541
U.S. 940 (2004).       In Whitaker, we held that Crawford may apply
retroactively to cases that were pending on direct appeal at the time
Crawford was decided, so long as an objection to the contested evidence
was made — even though the objection did not specifically reference
Crawford. 878 A.2d at 920 n.3; see also Commonwealth v. Hood, 872
A.2d 175, 184 (Pa. Super. 2005) (in order to preserve Crawford argument,
defendant was required to object to admissibility on Sixth Amendment
Confrontation Clause grounds), appeal denied, 889 A.2d 88 (Pa. 2005).


                                          - 44 -
J-A04019-17


this issue therefore depends on the third prong of the Pierce ineffective

assistance test — whether Appellant was prejudiced by his counsel’s failure

to object to the recitation of Kennedy’s and Cruz’s statements. See Pierce,

527 A.2d at 975.

        The PCRA court held that the failure to assert Confrontation Clause

rights with respect to the Kennedy and Cruz statements was harmless error.

PCRA Ct. Op. at 20-21. We have held that Confrontation Clause errors can

be harmless. See Commonwealth v. Rosser, 135 A.3d 1077, 1088 (Pa.

Super. 2016) (en banc), appeal denied, ___ A.3d ___, 2017 WL 1194930

(Pa., Mar. 31, 2017). And after a careful review of the trial record, we agree

with the PCRA court that the asserted error by trial counsel was harmless

here.    On this record, we cannot see how the brief reading of these short

excerpts during Appellant’s three-day trial swayed the jury in any way, given

all of the other overwhelming evidence presented by the Commonwealth, as

summarized by the Supreme Court on Appellant’s direct appeal, see

Ramos, 827 A.2d at 1198.           We see no reasonable likelihood that the

outcome of the proceedings would have been different if an objection to

these statements had been made.

        In challenging this result, Appellant states:

        [C]ontrary to the PCRA court’s opinion, Reinhold’s impermissible
        identification testimony was highly prejudicial. First, the PCRA
        court erred in applying the wrong standard. The PCRA court
        concluded that “Ramos failed to show that . . . [he] would have
        been acquitted.” This conclusion is a clear misinterpretation of
        the law, which requires [Appellant] to show only that there is a
        reasonable likelihood the outcome of the proceeding would have
                                       - 45 -
J-A04019-17


       been different.     [Appellant] plainly satisfies this standard,
       because without Reinhold’s testimony, the Commonwealth’s case
       would have been based upon a single eyewitness, who was at a
       known “crack house” when she allegedly witnessed [Appellant]
       shoot Crawford. Had trial counsel objected, moved to strike,
       moved in limine to exclude, or impeached this testimony, the
       jury would have been exposed to, or would have been instructed
       not to consider this damaging testimony.

Appellant’s Brief at 75-76 (citations omitted). We disagree. First of all, we

do not view the PCRA court’s use of the word “acquitted” as controlling.

Viewed in context, it is clear that the court was referring to whether an

objection to the testimony would have been likely to change the result of the

trial. And in any event, we have conducted our appellate review under the

proper prejudice standard stated in Pierce.          Second, we do not view the

record that would remain without the contested statements to be as bereft

of probative evidence as Appellant suggests. And despite Appellant’s effort

to denigrate Davis’ testimony, she provided direct eyewitness evidence that

identified Appellant as the murderer. Striking of the contested statements

would not have removed that compelling testimony.

       We conclude that the PCRA court did not err in finding that Appellant

therefore suffered no prejudice from trial counsel’s failure to object and that

his   claim   of   ineffective   assistance   of   counsel   with   respect   to   the

Confrontation Clause issue is without merit.            See Commonwealth v.

Simpson, 66 A.3d 253, 260 (Pa. 2013); Stevens, 739 A.2d at 512; Pierce,

527 A.2d at 975.




                                        - 46 -
J-A04019-17


         Challenge to the Photographic Array Shown to Davis
                     (Appellant’s Issue 2 (part))

      In another of Appellant’s claims of ineffective assistance of his trial

counsel, Appellant contends that trial counsel “failed to examine the photo

array from which Davis allegedly identified [Appellant] as the shooter.”

Appellant’s Brief at 49. The background of this issue is as follows: Detective

McElvie generated a line-up containing 106 different photographs using an

imaging machine.    N.T., 12/28/99, at 10-11; Ramos, 827 A.2d at 1197.

Out of this line-up, eyewitness Jeanine Davis selected two different

photographs of Appellant and stated that he was the shooter.         Detective

McElvie testified during trial that he had been unaware that there was a

second, different photograph of Appellant in the array until Davis identified

it. N.T., 12/28/99, at 12. Trial counsel never reviewed the full photo array.

      Appellant argues that “had trial counsel investigated the photo array,

he . . . would have been able to determine the parameters that lead to

Davis’s signature on two different photographs that both purport to be her

identification of [Appellant] as the shooter.” Appellant’s Brief at 50-51; see

also id. at 47 (“Trial counsel made no attempt to investigate the credibility

of Davis’s statements, even though Davis was the Commonwealth’s primary

witness: she was the only witness who testified at the preliminary hearing,

her two police interviews were provided in discovery to trial counsel, and she

was the lone alleged eyewitness presented by the Commonwealth at trial”

(emphasis and citations to the record omitted)). Appellant continues:

                                    - 47 -
J-A04019-17


       Not only did trial counsel fail to view the actual photo array, but
       he also admitted that he was unaware of the parameters that
       had been input into the imaging machine to generate the array.
       He had the opportunity to request this information, but failed to
       do so. . . . Although trial counsel failed to examine the photo
       arrays, or request related information, [Appellant]’s current
       PCRA counsel has since requested this information from the
       Commonwealth. The Commonwealth has stated that the file and
       information concerning the photo arrays and lineup are
       irretrievable.

Id. at 52, 54; see N.T., 9/25/08, at 105-06.17

       The PCRA court construed this issue in the context of an overbroad

discovery request.         It did not directly address Appellant’s ineffective

assistance of counsel claim as to trial counsel’s failure to examine the

photographic array. PCRA Ct. Op. at 51-53.

       We conclude that Appellant is not entitled to relief on this issue.   At

trial, Detective McElvie testified that he entered Davis’s description of the

murderer into the imaging machine, as well as an age range and a date

____________________________________________
17
   The Commonwealth contends that Appellant “conceded that he cannot
show prejudice from counsel’s alleged failure” to “examine the photo array in
which Davis identified him as the shooter.” Commonwealth’s Brief at
32. We disagree. Instead, Appellant has stated:

       The Commonwealth has stated that the file and information
       concerning the photo arrays and lineup are irretrievable. For
       this reason, current counsel, and this Court, are unable to
       determine the full extent to which [Appellant] has been
       prejudiced by trial counsel’s failures to investigate the photo
       arrays. However, it is clear that the prejudice caused by these
       errors is significant and permanent.

Appellant’s Brief at 54-55 (emphasis added). Accordingly, Appellant did not
concede this point.


                                          - 48 -
J-A04019-17


range.    N.T., 12/28/99, at 9-11.      Appellant thus was informed of the

parameters of the photo array.       Although his appellate brief raises the

specter of “innumerable dangers and variable factors” that might make the

array unreliable, Appellant’s Brief at 51 (quoted citation omitted), Appellant

never identifies any specific impropriety about the photo array procedure

used here.

        Even if trial counsel had found differences between photographs

included in the array and Davis’s description of the perpetrator, these

differences would relate to the credibility of Davis’s identification, not to the

undue suggestiveness of the array. Commonwealth v. Fulmore, 25 A.3d

340, 347 (Pa. Super. 2011), appeal denied, 34 A.3d 827 (Pa. 2011); see

also Commonwealth v. Stiles, 143 A.3d 968, 979 (Pa. Super.) (“An

unduly suggestive photographic array would be one wherein [a]ppellant’s

photograph stood out as compared to the others”), appeal denied, 163

A.3d 403 (Pa. 2016). There is no evidence of undue suggestiveness here.

Davis identified two different photographs of Appellant from among 106

photographs that were shown to her. Even Detective McElvie was unaware

that there was more than one photograph of Appellant in the array until

Davis identified the second image. N.T., 12/28/99, at 10-11; Ramos, 827

A.2d at 1197. Her dual identifications bolster the reliability of the process

used.




                                     - 49 -
J-A04019-17


      We thus conclude that any challenge to the photographic array shown

to Davis is meritless, and “counsel cannot be considered ineffective for

failing to pursue a meritless claim.” Lopez, 739 A.2d at 495.

         Challenges to the Admission of Appellant’s Statement
                         (Appellant’s Issue 6)

      Appellant contends that the PCRA court erred in concluding that trial

counsel was not ineffective for failing to (1) move to suppress Appellant’s

statement to police, or (2) object to its introduction at trial. Appellant’s Brief

at 3 ¶ 6 & 76, 80-82. Appellant continues that the basis for either approach

should have been that Appellant was mentally unable to provide a voluntary,

knowing statement. Appellant supports this claim with opinions from both

his and the Commonwealth’s experts that he suffers from a “cognitive

disorder not otherwise specified”; “clearly has deficits in IQ testing” — with

a full-scale IQ of only 65; and suffers from mild mental retardation or mild

intellectual disability. N.T., 5/24/10, at 65-68, 77-84; N.T., 1/4/12, at 16,

111; N.T., 1/5/12, at 17.     In addition, Appellant complains that the police

who interrogated him used a Spanish interpreter, even though Appellant’s

primary language is English, not Spanish. N.T., 5/25/10, at 277, 290, 351.

Appellant concludes that the PCRA court erred in determining that trial

counsel had a reasonable basis for not moving to suppress Appellant’s

statement, PCRA Ct. Op. at 35, 40-41, and argues that trial counsel’s

strategy of relying on Appellant’s statement as part of his defense was

patently unreasonable.

                                     - 50 -
J-A04019-17


     In Commonwealth v. Harrell, 65 A.3d 420 (Pa. Super. 2013),

appeal denied, 101 A.3d 785 (Pa. 2014), we stated:

     A confession obtained during a custodial interrogation is
     admissible where the accused’s right to remain silent and right
     to counsel have been explained and the accused has knowingly
     and voluntarily waived those rights. The test for determining the
     voluntariness of a confession and whether an accused knowingly
     waived his or her rights looks to the totality of the circumstances
     surrounding the giving of the confession.

     The Commonwealth bears the burden of establishing whether a
     defendant knowingly and voluntarily waived his [rights under]
     Miranda [v. Arizona, 384 U.S. 436 (1966)] . . . .

     When deciding a motion to suppress a confession, the
     touchstone inquiry is whether the confession was voluntary.
     Voluntariness is determined from the totality of the
     circumstances surrounding the confession.       The question of
     voluntariness is not whether the defendant would have
     confessed without interrogation, but whether the interrogation
     was so manipulative or coercive that it deprived the defendant of
     his ability to make a free and unconstrained decision to confess.
     The Commonwealth has the burden of proving by a
     preponderance of the evidence that the defendant confessed
     voluntarily.

     When assessing voluntariness pursuant to the totality of the
     circumstances, a court should look at the following factors: the
     duration and means of the interrogation; the physical and
     psychological state of the accused; the conditions attendant to
     the detention; the attitude of the interrogator; and any and all
     other factors that could drain a person’s ability to withstand
     suggestion and coercion.

65 A.3d at 433–34.

     The Supreme Court of Pennsylvania has “consistently refused to

adhere to a per se rule of incapacity to waive constitutional rights based on

mental disease or deficiency.” Commonwealth v. Hughes, 555 A.2d 1264,

1275 (Pa. 1989). “The fact that a defendant has a low I.Q. does not in and
                                   - 51 -
J-A04019-17


of itself render his confession involuntary.” Commonwealth v. Whitney,

512 A.2d 1152, 1157 (Pa. 1986); accord Commonwealth v. Chacko, 459

A.2d 311, 317 (Pa. 1983); Commonwealth v. Glover, 412 A.2d 855, 859

(Pa. 1980).

     We agree with the PCRA court that the record indicates that Appellant

was not so mentally incompetent as to render his statement unknowing and

involuntary.   PCRA Ct. Op. at 34.    Trial counsel testified that Appellant

“always seemed to be able to communicate.”        N.T., 9/25/08, at 177.   He

added, “In my judgment, and the several times I interviewed him, we were

always able to relate pretty well. And I was not of the impression that the

young man had any mental problems, no.” N.T., 4/27/09, at 62. Detective

Reinhold, who took Appellant’s statement, testified that Appellant answered

his questions coherently and appeared to be of sound mind and not under

the influence. N.T., 12/28/99, at 40. Additionally, Appellant made no claim

and presented no evidence that his interrogation was “manipulative or

coercive.” Harrell, 65 A.3d at 434. Accordingly, the PCRA court found that

Appellant had no difficulties communicating and did not present himself as

“afflicted with any mental disability.”     PCRA Ct. Op. at 36 (citing N.T.,

9/25/08, at 177; N.T., 4/27/09, at 62).

     We hold that the record supports the PCRA court’s “firm[] . . . belief

that [Appellant]’s statement[ was] not involuntary” and that his “voluntary,

knowing, and intelligent statement afforded no meritorious grounds for filing

a motion to suppress.”    PCRA Ct. Op. at 40; see also id. at 34.          We
                                   - 52 -
J-A04019-17


therefore cannot conclude that Appellant’s intellectual disability rendered

him incapable of understanding his constitutional rights or rendered his

confession involuntary.   See Hughes, 555 A.2d at 1275; Whitney, 512

A.2d at 1157; Chacko, 459 A.2d at 317; Glover, 412 A.2d at 859.

Appellant’s trial counsel cannot be held ineffective for failing to file a

meritless motion on that basis or objecting to the statement’s introduction at

trial. Lopez, 739 A.2d at 495.

      As trial counsel explained, he did not object to use of Appellant’s

statement because it supported his strategy of arguing that Centeno was the

killer. N.T., 4/27/09, at 61. Counsel was not ineffective for following that

strategy.

                              Prior Bad Acts
                           (Appellant’s Issue 7)

      Appellant contends that the PCRA court erred in concluding that the

introduction of allegedly improper and prejudicial “other crimes” evidence –

specifically, drug dealing – by Detective Reinhold and by trial counsel did not

violate Appellant’s due process rights. Appellant’s Brief at 82.

      The PCRA court held that trial counsel was not ineffective for failing to

object to this evidence or to request an appropriate limiting instruction about

it:

      Here, the Commonwealth introduced [Appellant]’s statement to
      police which referenced his drug dealing. In the statement,
      [Appellant] explained that he was selling drugs from 5:00 pm to
      midnight on the evening before the shooting and that afterwards
      he met with Centeno, his uncle, and looked to purchase drugs

                                    - 53 -
J-A04019-17


     for himself.   (The decedent’s drug-selling corner was open all
     night.)

     Th[e PCRA] court finds that the evidence of [Appellant]’s drug
     dealing was properly admitted for the legitimate purpose of
     showing res gestae. The evidence was, in fact, an integral part
     of the case’s history as it provided the initial link to the
     subsequent criminal acts — the robbery and shooting of the
     decedent.

     Furthermore, any potential for unfair prejudice to [Appellant]
     would have been mitigated by th[e trial c]ourt’s limiting
     instructions:

        Ladies and Gentlemen, you have heard evidence tending
        to prove that the defendant was dealing drugs between
        5:00 p.m. and midnight in the hours before the killing of
        James Crawford. The defendant is not on trial on
        charges relating to drug dealing.           You must not
        regard this evidence as showing that the defendant
        is a person of bad character or criminal tendencies
        from which you might be inclined to infer guilt. If
        you find that the defendant is guilty of the crimes charged
        in this case it must be because you are convinced by the
        evidence that he committed the crimes charged in this
        case and not because you believe that he is wicked or has
        committed any other offense.

     (N.T.[,] 12/30/1999, [at] 15) (emphasis added).

     In light of th[e trial] court’s limiting instructions, it would be safe
     to presume that the jury would have disregarded any allegedly
     improper testimony by Detective Reinhold. . . . Furthermore,
     [Appellant] has not sustained his burden of proving that but for
     his trial counsel’s alleged omission, there is a reasonable
     probability that the jury would have acquitted him. Absent any
     showing of prejudice, [Appellant] cannot prove that trial counsel
     was ineffective.

     It follows, therefore, that th[e PCRA] court correctly concluded
     that [Appellant]’s counsel was not ineffective for failure to object
     to the introduction of “other crimes” evidence, as the evidence of
     [Appellant]’s drug dealing was properly admitted for the
     legitimate purpose of showing res gestae, the history of the
     case.     Th[e PCRA] court also correctly concluded that
                                     - 54 -
J-A04019-17


      [Appellant]’s counsel was not ineffective for failure to request an
      “appropriate” limiting instruction for this evidence, as th[e trial]
      court already provided a limiting instruction which cured any
      potential for prejudice to [Appellant]. No relief is due.

PCRA Ct. Op. at 44-46.

      In Commonwealth v. Chmiel, 889 A.2d 501 (Pa. 2005), cert.

denied, 549 U.S. 848 (2006), the Supreme Court stated:

      It is a long-standing principle in this Commonwealth that
      evidence of a distinct crime, except under special circumstances,
      is inadmissible. Commonwealth v. Morris, 493 Pa. 164, 425
      A.2d 715, 720 (1981). Permissible use of evidence of other
      crimes is addressed in Pa.R.E. 404(b), which states, “evidence of
      other crimes, wrongs, or acts is not admissible to prove the
      character of a person in order to show action in conformity
      therewith” but “evidence of other crimes, wrongs, or acts may
      be admitted for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity or
      absence of mistake or accident.”

Id. at 534 (brackets omitted). In Commonwealth v. Lark, 543 A.2d 491,

497 (Pa. 1988), the Supreme Court held that evidence of other crimes may

be admissible under the res gestae exception, where the evidence became

part of the history of the case and formed part of the natural development of

the facts.   See Commonwealth v. Cousar, 154 A.3d 287, 303–04 (Pa.

2017).

      Here, the evidence established that Appellant sold drugs until a few

hours before the murder and then went with his uncle to buy more drugs in

an area where they are sold twenty-four hours a day. N.T., 12/28/99, at 48.

This evidence about the drug transactions established that Appellant was at

the crime scene with the co-defendant, how he arrived there, and his reason

                                     - 55 -
J-A04019-17


for being there. See Cousar, 154 A.3d at 303–04. Thus, we agree with the

PCRA court that this evidence of other crimes met the res gestae exception.

See Pa.R.E. 404(b); Cousar, 154 A.3d at 303–04; Chmiel, 889 A.2d at

534. Therefore, trial counsel could not be deemed ineffective by failing to

object to it.

      Additionally, the trial court instructed the jury that Appellant was “not

on trial on charges relating to drug dealing” and that it “must not regard this

evidence [of drug dealing] as showing that [Appellant] is a person of bad

character or criminal tendencies from which you might be inclined to infer

guilt.”   N.T., 12/30/99, at 15. The jury is presumed to have followed the

court’s instruction.   See Commonwealth v. Hairston, 84 A.3d 657, 666

(Pa.), cert. denied, 135 S. Ct. 164 (2014). Because the trial court did give

an appropriate limiting instruction, there was no reason for trial counsel to

request one.

      For these reasons, this claim by Appellant is meritless.      Where “the

underlying claim is meritless, the derivative claim of ineffective assistance of

counsel for failing to object has no arguable merit.” Spotz, 47 A.3d at 122.

                        Missing Voir Dire Transcripts
                           (Appellant’s Issue 8)

      Appellant alleges that two days of the four days of voir dire

proceedings from the underlying trial were never transcribed and the

transcripts were never provided to Appellant or his appellate counsel.

Appellant’s Brief at 85.   He contends that he “suffered prejudice because,

                                     - 56 -
J-A04019-17


had appellate counsel sought the missing transcripts during the direct

appeal, he would have learned that the transcripts were unavailable, and he

could have argued for a new trial on direct appeal.” Id. Appellant argues

that “the PCRA court erred in concluding that the absence of transcripts did

not prevent adequate appellate review.” Id. at 84.

     The PCRA court expressed its reasoning on this issue as follows:

     [Appellant] does not single out any issues which could not have
     been adequately reviewed because of the above deficiency of the
     transcript’s voir dire portion. [Appellant]’s allegation that the
     untranscribed portion of the transcript might have allowed his
     appellate counsel to mount a meritorious challenge is
     [conclusory] and is not sufficient to raise a violation-of-due-
     process claim.      [Appellant] failed to present any concrete
     evidence to show that the untranscribed portion of the voir dire
     notes may be of importance for elucidating a cognizable claim.
     See [Commonwealth v.] Marinelli, 910 A.2d [672,] 688 [(Pa.
     2006),] (“[A] conclusory allegation is utterly insufficient to raise
     a colorable question of whether due process was violated[] by
     the alleged unavailability of the notes of a particular day’s
     testimony.”) (citation and internal quotation marks omitted).

     Th[e PCRA] court, therefore, correctly concluded that that the
     absence of the untranscribed portion of the voir dire notes did
     not result in violation of [Appellant]’s due process rights and that
     it neither prevented our Supreme Court from fulfilling its
     statutory obligations nor deprived [Appellant] of adequate
     appellate review. No relief is due.

PCRA Ct. Op. at 49.

     During   an      appeal   from   the      denial   of   a   PCRA   petition   in

Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), the appellant —

     argue[d] that he was denied his right to meaningful appellate
     review due to the selective transcription of the voir dire
     proceedings and the absence of a transcript of defense
     testimony during one day of his trial, including that of [several
     defense character witnesses and] his expert witness . . . He also
                                      - 57 -
J-A04019-17


      argue[d] that his counsel on direct appeal was ineffective in
      failing to secure a complete record of the proceedings.

Id. at 701.      The Supreme Court of Pennsylvania rejected the appellant’s

claim, pointing out that “[t]o be entitled to relief due to the incompleteness

of the trial record the defendant must [first] make some potentially

meritorious challenge which cannot be adequately reviewed due to the

deficiency in the transcript.”     Id. (emphasis added). The Court concluded

that a bald assertion that there may have been improper questions was

insufficient to sustain the appellant’s argument that his due process rights

were violated and “insufficient to raise any inference of prejudice from trial

and direct appeal counsel’s failure to pursue this issue.”               Without

establishing prejudice, the appellant could not sustain an ineffective

assistance of counsel claim.       Id. at 701-02; see also Commonwealth v.

Schwenk, 777 A.2d 1149, 1157 (Pa. Super. 2001) (no relief for failing to

request   that     the   closing   arguments    of   counsel   be   transcribed);

Commonwealth v. Richard Johnson, 459 A.2d 5, 10 (Pa. Super. 1983)

(no relief for failing to request transcription of the opening and closing

arguments).

      We agree with the PCRA court that Appellant did “not single out any

issues which could not have been adequately reviewed” due to the

untranscribed portions of the voir dire. PCRA Ct. Op. at 49. As in Albrecht,

720 A.2d at 701, Appellant makes no claim as to what particular errors could

have been proven had he had access to these untranscribed notes of

                                       - 58 -
J-A04019-17


testimony; he presents only the speculative potential of possible error. His

allegation is insufficient to sustain a claim for relief.     See Albrecht, 720

A.2d at 701-02; Schwenk, 777 A.2d at 1157; Richard Johnson, 459 A.2d

at 10.

                  Denial of Appellant’s Discovery Requests
                            (Appellant’s Issue 11)

         Appellant filed discovery motions in 2005 and 2007.           Appellant

specifically requested:       (1) the photographic array shown to Davis; (2)

information about the Commonwealth’s compensation of or agreement with

Davis; (3) Philadelphia Police Department log entries relating to an individual

named “Will”; (4) the Commonwealth’s file for co-defendant Centeno; and

(5) any Commonwealth files relating to any investigation of “Santos Roland,”

who was identified as a possible suspect in an Investigation Interview

Record. Appellant’s Brief at 88-89.18 The PCRA court denied his requests.

         “We review a PCRA court’s denial of an appellant’s request for

discovery for abuse of discretion.”            Roney, 79 A.3d at 603l; see also

Commonwealth v. Miller, 987 A.2d 638, 671 (Pa. 2009); Commonwealth

v. Collins, 957 A.2d 237, 265 (Pa. 2008).




____________________________________________
18
   In 2008, Appellant also made an oral motion requesting the results of
Centeno’s polygraph examinations. N.T., 9/25/08, at 4-5, 9-11. However,
Appellant makes no argument regarding these polygraph exam results in his
brief or his reply brief to this Court, and we therefore deem this issue
waived.


                                          - 59 -
J-A04019-17


      Appellant contends that the PCRA court “erred by refusing to provide

[Appellant] discovery in aid of his PCRA petition.”       Appellant’s Brief at 88.

Appellant   argues   that,   “[i]n   each     discovery   motion,   [he]   readily

demonstrated the existence of good cause and, in addition, established that

he was entitled to discovery pursuant to Brady and Giglio v. U.S., 405 U.S.

150 (1972), among other authorities.” Id. at 90. He maintains that “such

discovery would confirm that trial counsel was ineffective in failing to

undertake a full investigation of the underlying charged crimes.” Id. at 89;

see also id. at 46 (trial counsel “failed to conduct any further investigation

into the Commonwealth’s case to prepare [Appellant]’s defense”). Appellant

concludes that “[t]he PCRA court’s denial of these discovery motions was

improper and warrants reversal on this ground alone.”           Id. at 90.    The

Commonwealth briefly counters that “the PCRA court did not abuse its

discretion by denying discovery.” Commonwealth’s Brief at 56.

      The PCRA court stated that it “correctly denied [Appellant]’s motions

for discovery.” PCRA Ct. Op. at 50. It explained:

      Th[e PCRA] court is firmly of the belief that [Appellant]’s motion
      [for discovery dated July 27, 2005,] was overbroad and that
      even if it is deemed not to be, [Appellant] has failed to show
      good cause as required by Pa.R.Crim.P. []902(E)(2).

      Upon consideration, th[e PCRA] court determined that this
      motion was a “fishing expedition,” and that the defense was not
      entitled to information on every possible lead the police may
      have followed. [N.T.], 11/7/2005, [at] 29.

      With regard to [Appellant]’s August 31, 2007 motion, th[e PCRA]
      court concluded that, contrary to the defense claims, the
      discovery sought did not involve any Brady material. [N.T.],
                                     - 60 -
J-A04019-17


       10/18/2007, [at] 4[.] . . . Referring to [Appellant]’s discovery
       request as a “classic fishing expedition,” the Commonwealth
       stressed that it possessed nothing exculpatory and that if it had
       exculpatory materials it would have turned them over to
       [Appellant]. [N.T.], 10/18/2007, [at] 16, 18.

       Upon consideration of [Appellant]’s discovery requests for the
       Commonwealth’s file on Michael Centeno, the police log entries,
       and the information regarding Davis’ location or relocation, th[e
       PCRA] court, therefore, properly denied them. . . . Here,
       [Appellant]’s request for discovery is based on no more than
       speculation and conjecture. . . . Granting [Appellant]’s request is
       to enter into the type of “fishing expeditions” not permitted in
       criminal proceedings. . . . Th[e PCRA] court, therefore, correctly
       denied [Appellant]’s motions for discovery. No relief is due.

Id. at 52, 54, 57.

       A petitioner’s right to PCRA discovery is governed by Pa.R.Crim.P.

902(E):

       (1) Except as provided in paragraph (E)(2), no discovery shall be
       permitted at any stage of the proceedings, except upon leave of
       court after a showing of exceptional circumstances.

       (2) On the first counseled petition in a death penalty case, no
       discovery shall be permitted at any stage of the proceedings,
       except upon leave of court after a showing of good cause.

As Appellant’s 2005 and 2007 discovery motions were filed while Appellant

was still sentenced to death, prior to his re-sentencing to life without parole

in 2008, we will examine them pursuant to the less stringent standard of

Pa.R.Crim.P. 902(E)(2).19

____________________________________________
19
   The Commonwealth concedes that Rule 902(E)(2) is applicable because
“[t]his was a capital case at the time of [Appellant]’s first discovery motion.”
Commonwealth’s Brief at 57 & n.29. The PCRA court also employed this
standard. PCRA Ct. Op. at 52 (citing Pa.R.Crim.P. 902(E)(2)).


                                          - 61 -
J-A04019-17


      The key questions for determining whether good cause exists to

compel additional discovery under Rule 902(E)(2) are whether any of the

documents would be exculpatory and whether the defendant’s reasons for

his requests constitute more than mere speculation. See Commonwealth

v. Elliott, 80 A.3d 415, 449-50 (Pa. 2013) (defendant could not establish

good cause necessary to compel additional discovery in death penalty

collateral proceedings; he could not identify documents that would be

exculpatory, and his claims to the contrary constituted mere speculation),

cert. denied, 135 S. Ct. 50 (2014). Additionally, a petitioner is not entitled

to discovery where he has not shown the existence of the requested

documents; speculation that the requested documents exist and will reveal

exculpatory evidence does not satisfy the discovery rule. Commonwealth

v. Carson, 913 A.2d 220, 261 (Pa. 2006), cert. denied, 552 U.S. 954

(2007). In light of these standards, we turn to each of Appellant’s discovery

requests.

                     The Photographic Array Shown to Davis

      The   first   piece   of   discovery   requested   by   Appellant    was   the

photographic    array   shown      to   Davis.    Appellant    admits     that   “the

Commonwealth has stated that the file and information concerning the photo

arrays and lineup are irretrievable.” Appellant’s Brief at 54. Because this

photographic array does not exist, Appellant is not entitled to it.         Carson,

913 A.2d at 261.



                                        - 62 -
J-A04019-17


                Alleged Compensation of or Agreement with Davis

       Appellant requested information about any compensation of or

Commonwealth agreement with Davis.                 Our Supreme Court has rejected

similar discovery requests because they fail to meet the “showing of good

cause” standard under Rule 902(E)(2).                Thus, in Commonwealth v.

Bridges, 886 A.2d 1127, 1131 (Pa. 2005), the Court disallowed a discovery

request for information about whether a Commonwealth witness was paid, a

request that parallels Appellant’s request for information about whether

Davis was compensated by the Commonwealth. We therefore conclude that

the PCRA court correctly disallowed this discovery.20

                    Philadelphia Police Department Log Entries

       Appellant’s discovery request for Philadelphia Police Department log

entries relating to an individual named “Will” is based upon Appellant’s

contention that, while considering the photographic array, Davis selected

someone named “Will.” Appellant’s Brief at 49; N.T., 10/18/07, at 11; PCRA

Ct. Op. at 53. Appellant, whose first name is Wilfredo, argues that he has

never used the name “Will” and therefore should be allowed to examine the

station’s log entries to try to discover whether there was anyone by the

name of “Will” who was arrested or investigated.           Appellant also links this



____________________________________________
20
   The PCRA court noted that, in any event, the Commonwealth represented
to the court that “nothing” was given to Davis. PCRA Ct. Op. at 53 (quoting
N.T., 10/18/07, at 9).


                                          - 63 -
J-A04019-17


discovery request to his claim that trial counsel failed to investigate the facts

of this case, stating —

       Had trial counsel investigated [Appellant]’s family background
       and personal history, he would have discovered that [Appellant]
       was never called “Will” by his family, friends, or anyone who
       knew him and [Appellant]’s mother was willing to testify to this
       fact during [Appellant]’s trial. Trial counsel’s failure to
       investigate even general background information about
       [Appellant] led trial counsel to miss a crucial opportunity to
       impeach Davis on cross-examination.

Appellant’s Brief at 49.21

       In response, the Commonwealth represented that there were no other

suspects or any other persons connected to this case named “Will”: “There’s

just Wil-fre-do. There is no other Will.” N.T., 10/18/07, at 12.

       We agree with the PCRA court that Appellant is only speculating that

another individual named “Will” was arrested, investigated, or has had any

association with this matter. Indeed, Appellant has stated his argument only

in terms of an unsubstantiated “belief.”22         Because Appellant’s reasons for



____________________________________________
21
  There is no evidence that Davis was family or a friend or acquaintance of
Appellant.
22
  See Pet’r’s Mot. for Discovery Pursuant to Brady v. Maryland, 8/31/07,
at 10 ¶¶ 45-46 (“[Appellant] believes that Ms. Davis misidentified
[Appellant], confusing him with ‘Will,’ . . . Ms. Davis’s testimony gives good
cause to believe that Philadelphia Police Department Incident Logs for the
25th Police District contain entries during the relevant time period relating to
an individual known as ‘Will.’ [Appellant]’s pleading gives good cause to
believe that such entries refer to someone other than him. Collectively,
they establish good cause to believe that Philadelphia Police Department
Incident Logs for the 25th Police District contain entries during the relevant
(Footnote Continued Next Page)

                                          - 64 -
J-A04019-17


making this request do not constitute more than mere speculation, we agree

with the PCRA court that good cause did not exist to compel this additional

discovery, and Appellant’s request was properly denied. See PCRA Ct. Op.

at 53; Carson, 913 A.2d at 261; Elliott, 80 A.3d at 449-50.

          The Commonwealth’s Files for Centeno and “Santos Roland”

        Appellant requested files relating to his uncle and co-defendant,

Centeno, and to a hypothesized suspect named “Santos Roland.” He says

that he “sought discovery of police files in order to determine the extent to

which     detectives     pursued     possible    leads   and   suspects   other   than

[Appellant].” Appellant’s Brief at 88-89.23

        In Commonwealth v. James Williams, 86 A.3d 771 (Pa. 2014), the

Supreme Court of Pennsylvania rejected a similar request for discovery of

the Commonwealth’s files and other notes about co-conspirators. The Court

explained:

        A defendant’s right to discover exculpatory evidence does not
        include the unsupervised authority to search through the
        Commonwealth’s files. . . . Unless defense counsel becomes
        aware that other exculpatory evidence was withheld and brings it
        to the court’s attention, the prosecutor’s decision on disclosure is
                       _______________________
(Footnote Continued)
time period relating to police knowledge of the existence and activities of an
individual . . . known as ‘Will’” (emphases added)).
23
    The Commonwealth makes no specific arguments about Appellant’s
challenge to the denial of these two discovery requests, besides “direct[ing]
this Court’s attention” to the PCRA court’s discussion of these claims.
Commonwealth’s Brief at 57 n.30. The PCRA court made no findings
particular to these requests, beyond its general analysis of why it denied all
of Appellant’s discovery requests. PCRA Ct. Op. at 50-54, 57.


                                           - 65 -
J-A04019-17


      final. Defense counsel has no constitutional right to conduct his
      own search of the State’s files to argue relevance. . . . A
      sufficient, specific PCRA factual proffer may be made and
      credited by the PCRA judge so as to, for example, convince the
      judge that the Commonwealth has not been candid about the
      content of its files, so that inspection, whether in camera or by
      the defense, is warranted. But, the mere fact that a claim
      sounds in Brady does not, on its own, create a special right to
      PCRA discovery.

86 A.3d at 788-89 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 59-60

(1987)); see Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is

no general constitutional right to discovery in a criminal case, and Brady did

not create one”).

      Appellant’s basis for requesting the Commonwealth’s file on Centeno is

mere conjecture.    At the time of his motion, Appellant argued that “the

police files likely contain information that pertains not only to [Appellant]’s

innocence or guilt in the death of Mr. Crawford, but also to mitigating factors

warranting the imposition of a non-death penalty sentence.” Pet’r’s Mot. for

Discovery, 7/27/05, at 7 ¶ 14 (emphasis added). Appellant continued that

he should “be give a full opportunity to conduct a meaningful investigation

into all evidence in this case, including any leads, alternative theories, or

additional witnesses considered by police.     The police files would likely

contain any such information and would therefore be invaluable[.]” Id. at ¶

16 (emphasis added). Thus, Appellant merely speculated that this file would

likely contain something useful, but he could not articulate what he

anticipated would be present in the file. Appellant’s speculation was not a

proper basis for obtaining the discovery he sought.
                                    - 66 -
J-A04019-17


      With respect to Appellant’s other request, there is no evidence that

“Santos Roland” even exists — let alone that there was ever an investigation

into this alleged suspect. Without explaining with greater specificity what he

hopes to find, Appellant cannot be granted “unsupervised authority to search

through the Commonwealth’s files.” James Williams, 86 A.3d at 788. As

in James Williams, Appellant’s supposition is not evidence, and mere

speculation cannot constitute good cause to compel discovery. See Elliott,

80 A.3d at 449-50.

      For these reasons, we concur with the PCRA court that none of

Appellant’s PCRA discovery requests constitute good cause, and, accordingly,

we find that the PCRA court did not abuse its discretion in denying

Appellant’s discovery requests. See Elliott, 80 A.3d at 449-50; Roney, 79

A.3d at 603.

                  Ineffectiveness of Appellate Counsel
                          (Appellant’s Issue 9)

      In his ninth issue, Appellant claims that “the PCRA court erred in

concluding that appellate counsel’s deficient representation did not deny

[Appellant] a right to a direct appeal.”     Appellant’s Brief at 86.   Appellant

argues:

      Despite the many meritorious constitutional claims [allegedly
      raised by Appellant in this PCRA appeal], appellate counsel failed
      to identify even one record-based claim on [direct] appeal, and
      had no strategic reason for this failure. [N.T., 07/15/08, at
      175.] . . . Prejudice is presumed “if counsel entirely fails to
      subject the prosecution’s case to meaningful adversarial testing
      . . . mak[ing] the adversary process itself presumptively
      unreliable.” [United States v.] Cronic, 466 U.S. 648, 659
                                    - 67 -
J-A04019-17


     (1984). . . . Appellate counsel’s deficient performance effectively
     denied [Appellant] assistance of counsel in his direct appeal,
     making the adversary process presumptively inadequate. . . . It
     was error for the PCRA court to find that appellate counsel was
     effective.

Id. The Commonwealth replies:

     [Appellant] may not have a presumption of appellate counsel’s
     ineffectiveness. . . . [Appellant]’s vague allusions to appellate
     counsel’s alleged failure to identify “the many meritorious
     constitutional claims . . .” (Brief for Appellant at 86), falls well
     short of proof that appellate counsel failed to subject the
     Commonwealth’s case to meaningful adversarial testing, the
     rarely applied Cronic exception he seeks to invoke. . . . No relief
     is due.

Commonwealth’s Brief at 53-55.

     In rejecting this issue, the PCRA court stated:

     Appellate counsel was not ineffective for not raising any of the
     alleged violations on appeal. . . . It is the province of appellate
     counsel to make strategic decisions as to what issues to raise on
     appeal “in order to maximize the likelihood of success.” Smith
     v. Robbins, 528 U.S. 259, 288 [(2000)]. . . . Here, by not
     raising [Appellant]’s claims on direct appeal, appellate counsel
     demonstrated that he recognized the claims as meritless. . . .

PCRA Ct. Op. at 46-47.     After carefully reviewing the record, we agree.

Because, as demonstrated above, Appellant would not have been afforded

the relief sought on these claims, appellate counsel had no reasonable basis

to bring them. See Commonwealth v. Davidson, 860 A.2d 575, 579 n.1

(Pa. Super. 2004) (“the effectiveness of appellate advocacy may suffer when

counsel raises numerous issues, to the point where a presumption arises

that there is no merit to any of them” (citations omitted)), aff’d, 938 A.2d

198 (Pa. 2007); Pierce, 527 A.2d at 975.       Additionally, Appellant cannot

                                    - 68 -
J-A04019-17


succeed in demonstrating that, but for appellate counsel’s alleged omissions,

the outcome of his direct appeal would have been different. Id.

       Appellant attempts to analogize his case to Cronic, 466 U.S. 648.

Appellant’s Brief at 86. However, the United States Supreme Court clarified

in Florida v. Nixon, 543 U.S. 175, 189-90 (2004), that the circumstances

giving rise to the Cronic presumption are infrequent and are limited to

situations where counsel’s failure is complete – that is, where “counsel has

entirely failed to function as the client’s advocate.” Here, appellate counsel

did raise issues on appeal.        See Ramos, 827 A.2d at 1196, 1198 (listing

appellate issues). Nothing about appellate counsel’s actions in the current

matter represent the “complete failure” of counsel that would trigger the

Cronic presumption. See Commonwealth v. Mallory, 941 A.2d 686, 702

(Pa.), cert. denied, 555 U.S. 884 (2008).

       Thus, we concur with the PCRA court that appellate counsel did not

provide ineffective assistance. Appellant’s penultimate claim is meritless.

                                 Cumulative Errors
                               (Appellant’s Issue 10)

       Finally,24 Appellant claims that the PCRA court “erred in failing to

consider the prejudicial effects of cumulative errors, entitling [Appellant] to

____________________________________________
24
   Appellant’s briefs consume more than 100 pages, and we have carefully
reviewed all of the arguments made by Appellant in those briefs. This
memorandum addresses the main arguments presented by Appellant. Any
argument that is not addressed here has been considered and found without
merit.


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relief.” Appellant’s Brief at 88. In response, the Commonwealth states that

“[Appellant] may not have relief on the cumulative effect of non-existent

errors” and that “[Appellant] has not demonstrated, as he must, that

although he has not proved prejudice from any individual error, a different

cumulation analysis entitles him to relief.” Commonwealth’s Brief at 55-56

(citing Commonwealth v. Hutchinson, 25 A.3d 277, 318-19 (Pa. 2011),

cert. denied, 132 S. Ct. 2711 (2012)).       The PCRA court agreed with the

Commonwealth, stating:

     Under Pennsylvania law, “no number of failed claims may
     collectively attain merit if they could not do so individually.”
     Commonwealth v. [Craig] Williams, 532 Pa. 265, 278, 615
     A.2d 716, 722 (1992). See also Commonwealth v. Ellis, 700
     A.2d 948, 962 (Pa. Super. Ct. 1997) (“Ellis contends that the
     individual claims may not require a new trial, but the cumulative
     impact of them may have led to an improper verdict. This
     argument is clearly meritless.”).

     Here, individually and together, [Appellant]’s claims lack merit.
     Th[e PCRA] court agrees with the Commonwealth’s conclusion
     that since none of [Appellant]’s claims merits relief individually,
     there simply is no “cumulative effect” to consider.
     Commonwealth’s Post-Hearing Brief, 06/30/2014, [at] 41.

     [Appellant]’s assertion that he was entitled to relief from his
     conviction due to the prejudicial effects of the cumulative errors
     in his case is meritless.

PCRA Ct. Op. at 46-47, 50.

     We agree:

     [The Supreme Court of Pennsylvania has] often held that no
     number of failed claims may collectively warrant relief if they fail
     to do so individually. However, we have clarified that this
     principle applies to claims that fail because of lack of merit or
     arguable merit.      When the failure of individual claims is

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J-A04019-17


      grounded in lack of prejudice, then the cumulative prejudice
      from those individual claims may properly be assessed.

      However, while cumulative prejudice may properly be assessed
      with respect to individual claims that have failed due to lack of
      prejudice, nothing in our precedent relieves an appellant who
      claims cumulative prejudice from setting forth a specific,
      reasoned, and legally and factually supported argument for the
      claim.   A bald averment of cumulative prejudice does not
      constitute a claim. Appellant has set forth no reviewable claim,
      and he is entitled to no relief.

Spotz, 47 A.3d at 129 (internal brackets, citations, and quotation marks

omitted); see also Commonwealth v. Bryant, 855 A.2d 726, 751 (Pa.

2004) (“No number of failed claims may collectively attain merit if they could

not do so individually” (brackets and citation omitted)).

      We have held in this memorandum that Appellant has not raised any

claims that entitle him to relief.     We found no errors with respect to

Appellant’s   challenge   under   Huffman,    challenges    to    trial   counsel’s

investigation and selection of witnesses, the failure to assert purported

Brady errors, the challenge to the admission of Appellant’s statement and to

res gestae evidence, the challenges to the lack of transcripts and discovery,

and the attack on Appellant’s appellate representation.          Because none of

these claims have merit, counsel could not have been ineffective in asserting

them. See Spotz, 47 A.3d at 122; Lopez, 739 A.2d at 495. Because each

of these claims was meritless individually, they cannot attain merit

collectively. See Spotz, 47 A.3d at 129.

      Appellant’s only “individual claims that have failed due to lack of

prejudice,” see Spotz, 47 A.3d at 129, were his challenges to Detective
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J-A04019-17


Reinhold’s reading of Kennedy’s and Cruz’s statements during the detective’s

testimony.      However, Appellant makes no particularized, specific, or

reasoned argument for prejudice related to cumulative error for these or any

other claims.    See id.    He does not even identify these or any other

particular issues as the bases for his cumulative error challenge or articulate

how these two challenges in combination were so prejudicial as to entitle

him to relief, even though the challenges did not give rise to a right to relief

individually. See Appellant’s Brief at 87-88.

      Appellant’s entire argument consists of five sentences and a citation to

several federal decisions, without detailing how those cited cases apply.

See Appellant’s Brief at 87-88.     Such a vague, generalized, undeveloped

claim is not reviewable.   See Chmiel, 30 A.3d at 1189 (when appellant’s

“entire argument consists of three sentences, with citation to two United

States Supreme Court cases, generally asserting a right to relief grounded in

an alleged denial of his rights under the 5th, 6th, 8th, and 14th

Amendments,”      cumulative   error     claim   “is   not   reviewable”   (citing

Commonwealth v. Small, 980 A.2d 549, 579 (Pa. 2009) (rejecting broad

and vague claim of the prejudicial effect of cumulative errors)). It certainly

is not so persuasive as to entitle Appellant to relief. After engaging in our

own review of these claims, we, like the Supreme Court of Pennsylvania in

Chmiel, 30 A.3d at 1190, “discern the absence of any furrow deep enough

to allow a ‘cumulating’ impact of prejudice to flow in establishing a right to a



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new trial or penalty hearing.” Accordingly, Appellant’s final issue is without

merit.

                                CONCLUSION

      Having discerned no abuse of discretion or error of law, we affirm the

order denying Appellant’s PCRA petition. See Wilson, 824 A.2d at 333.

      Order affirmed.

      Judge Shogan joins the memorandum.

      Judge Platt concurs in the result.

Judgment Entered.




JosephD.Seletyn,Esq.

Prothonotary

Date: 9/27/2017




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