J. S35002/16


                             2016 PA Super 124

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
REGINALD ROANE,                          :          No. 2602 EDA 2014
                                         :
                        Appellant        :


               Appeal from the PCRA Order, August 15, 2014,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0823721-1984


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


OPINION BY FORD ELLIOTT, P.J.E.:                       FILED JUNE 15, 2016

      Reginald Roane appeals from the August 15, 2014 order of the Court

of Common Pleas of Philadelphia County denying his amended petition under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.          We

affirm in part, reverse in part, and remand for resentencing.

      A previous panel of this court recited the following relevant facts:

            . . . [T]he evidence established that at the time of
            his death, William Crandall lived alone at
            3147 N. Carlisle Street in Philadelphia. For several
            years he was almost totally confined to a wheelchair.
            He was apparently a small dealer in drugs. Late in
            the evening of January 23, 1984, Maria Davis and
            her fourteen-month old daughter, Nicole[,] visited
            Mr. Crandall at his home. Ms. Davis was a neighbor
            of Mr. Crandall and assisted him with household
            chores.     At approximately 10:15 p.m., while
            Mr. Crandall and Ms. Davis were playing cards,
            [appellant] and another man arrived at Crandall’s
            apartment. [Appellant] indicated that he wanted to
J. S35002/16


            buy some marijuana. Ms. Davis admitted the two
            men and a third man who subsequently arrived at
            the apartment.

                  After Mr. Crandall handed a small paper bag to
            [appellant,] one of [appellant’s] accomplices stated
            “This is a stick-up,” and wrapped his arm around
            Ms. Davis’ neck in a choke hold, and placed a
            handgun at her back. [Appellant] simultaneously
            placed Mr. Crandall in a choke hold and stuck a
            handgun in his back. Crandall then pulled a handgun
            from his wheelchair and aimed it at the man who
            was holding Ms. Davis.

                  Nicole began to cry, and Ms. Davis begged her
            assailants to let her go to the child. She was thrown
            to the floor and placed her body over her child’s.
            Her sight was diverted from [appellant] when she
            heard the sounds of a struggle and four or five
            gunshots erupt from the area where [appellant] and
            Mr. Crandall were.        After the three men left,
            Ms. Davis called the police, as well as her brother
            who lived with her nearby.

                   Shortly after the incident, Ms. Davis identified
            each of the three men involved from photographs
            shown to her by the police. She told the police she
            did not know [] appellant. Several months after
            identifying [appellant’s] photograph, Ms. Davis
            informed the police that she knew [appellant] as one
            of her gradeschool[sic] classmates, whom she had
            not seen for approximately six years prior to William
            Crandall’s murder.

Commonwealth v. Roane, No. 1874 Philadelphia 1987, unpublished

memorandum at 2-3 (Pa.Super. filed April 12, 1988).

      The PCRA court aptly summarized the long and complicated procedural

history of this case:

                 [Appellant] was arrested on August 14, 1984
            and charged with a range of offenses, including


                                     -2-
J. S35002/16


            murder.[Footnote 1] On March 22, 1985 a jury
            presided over by the Honorable Juanita Kidd Stout,
            now deceased, found him guilty of second-degree
            murder, criminal conspiracy, robbery and possession
            of an instrument of crime (PIC). On April 1, 1985
            trial counsel, Wallace Walker, Esquire, filed a
            Post-Verdict Motion, and was later allowed to
            withdraw from the case. Dale Miller, Esquire, was
            then appointed as [appellant’s] new counsel and he
            amended the Post-Verdict Motion on October 14,
            1986. Thereafter, on June 23, 1987, [appellant] was
            sentenced by Judge (later Justice) Stout to life
            imprisonment without the possibility of parole for
            second-degree murder and a concurrent five to ten
            years of incarceration on the criminal conspiracy
            charge, ten to twenty years of incarceration on the
            robbery charge, and two and one-half to five years
            of incarceration on the PIC charge. On June 25,
            1987 [appellant] filed a timely Notice of Appeal and
            on April 12, 1988[,] the judgment of sentence was
            affirmed by the Superior Court in a memorandum
            opinion.[Footnote 2] On May 10, 1988 [appellant]
            petitioned the Supreme Court of Pennsylvania for
            allowance of appeal, but said petition was denied on
            January 31, 1989.[1]       [Appellant] did not seek
            certiorari before the United States Supreme Court,
            and his judgment of sentence therefore became final
            on May 1, 1989.

                  [Footnote 1] [Appellant] was charged
                  with 18 [Pa.C.S.A.] § 2502(a) murder of
                  the first degree; § 3701 robbery; § 3502
                  burglary; § 903 criminal conspiracy;
                  § 3921 theft by unlawful taking; § 2504
                  involuntary manslaughter; and § 907
                  possession of an instrument of crime.

                  [Footnote 2] Memorandum Opinion,
                  Commonwealth v. Roane, [1874
                  Philadelphia 1987], 378 Pa.Super. 651,
                  544 A.2d 1044 (Pa.Super. April 12,
                  1988).

1
    Commonwealth v. Roane, 557 A.2d 343 (Pa. 1989).


                                   -3-
J. S35002/16



                 On March 9, 1990 [appellant] timely filed his
          first PCRA petition pro se seeking to raise an
          ineffective assistance of trial and appellate counsel
          claim. Norris Gelman, Esquire, was appointed to
          represent [appellant] on April 27, 1990. On July 23,
          1991, [appellant] filed a pro se amended petition.
          On March 3, 1992[,] the Honorable James D.
          McCrudden found that [appellant] was uncooperative
          with Mr. Gelman, permitted counsel to withdraw and
          ordered [appellant] to proceed pro se.              On
          October 28,      1993[,    appellant’s]    first   and
          uncounseled PCRA petition was summarily dismissed
          on the merits by Judge Joseph I. Papalini.          On
          November 19, 1993[, appellant] filed a pro se
          Notice of Appeal and Statement of Questions Raised
          on Appeal. On January 25, 1994, new counsel,
          Joseph J. Marinaro, Esquire, was appointed to
          represent [appellant] on the appeal. The Superior
          Court     reversed    the   summary     dismissal     of
          [appellant’s] first pro se PCRA petition on July 18,
          1994. On remand Mr. Marinaro was instructed to
          amend the PCRA petition, which he did on
          October 25, 1994. Subsequently, on November 29,
          1996 the Honorable Genece E. Brinkley, having been
          assigned the case, issued a notice of intent to
          dismiss [appellant’s] PCRA, finding the issues
          meritless.    Accordingly, on December 10, 1996,
          Judge Brinkley denied [appellant’s] request for an
          evidentiary hearing and dismissed his first PCRA
          petition. The notice of the dismissal, however, was
          never filed or docketed in the Quarter Sessions file.

                 [Appellant] did not appeal Judge Brinkley’s
          order, but subsequently filed three petitions in an
          attempt to revive his right to appeal the dismissal of
          his first PCRA petition. First, on December 9, 1997,
          [appellant] filed a second PCRA petition pro se. This
          second PCRA petition was formally dismissed as
          untimely by Judge Stout on June 2, 1998. Later, on
          June 30, 1998, [appellant] filed pro se Notice of
          Appeal from Judge Stout’s dismissal which he
          subsequently withdrew on August 31, 1998.
          Second, on August 4, 1998, [appellant] filed a third


                                   -4-
J. S35002/16


          pro se PCRA petition, which was his first petition for
          Writ of Habeas Corpus Relief, however the courts
          have no record of receiving it. Third, on July 19,
          2000[, appellant] filed his fourth pro se petition and
          second petition for Writ of Habeas Corpus Relief,
          which the Superior Court has treated as an
          amendment to the original PCRA petition.

                On December 16, 2000[,] the Defender
          Association of Philadelphia was appointed to
          represent [appellant].     The Defender Association
          filed an amended PCRA petition on November 27,
          2001 seeking to reinstate [appellant’s] right to
          appeal Judge Brinkley’s December 1996 order
          dismissing his 1990 PCRA petition. An evidentiary
          hearing was held on May 7, 2003 before the
          Honorable Renee Caldwell Hughes to whom the case
          was then assigned. On May 15, 2003[, appellant]
          filed a supplemental PCRA petition. In a May 27,
          2003 order, which was amended and corrected on
          June 26, 2003, Judge Hughes disposed of Judge
          Brinkley’s   undocketed     order     and   reinstated
          [appellant’s] right to appeal, nunc pro tunc, the
          dismissal of his first PCRA petition.[Footnote 7] On
          June 20, 2003 and July 8, 2003[, appellant] filed a
          Notice of Appeal pursuant to Judge Hughes’s order
          and served it upon Judge Brinkley. On October 6,
          2003 after the Commonwealth appealed Judge
          Hughes’s reinstatement of [appellant’s] appellate
          rights, Judge Hughes issued a supporting opinion.

               [Footnote 7] Judge Hughes found that
               the 2000/2001 PCRA petition was an
               extension of [appellant’s] original 1990
               PCRA petition.

                On November 10, 2004[,] the Superior Court
          affirmed, in part, Judge Hughes’s order, but
          remanded      the   case    for   an   evidentiary
          hearing.[Footnote 11]    On February 14, 2005[,
          appellant] requested an allowance of appeal to the
          Supreme Court of Pennsylvania, but said petition




                                  -5-
J. S35002/16


             was denied on June 15, 2005.[2] On December 5,
             2006 [appellant] filed a supplemental amendment to
             his (original) petition for PCRA relief. On October 8,
             2008 and January 26, 2009, pursuant to the
             Superior Court’s order, an evidentiary hearing was
             held before Judge Hughes. Oral arguments were
             heard by Judge Hughes on May 28, 2009, but a
             decision was never rendered.          Thereafter, upon
             Judge Hughes’s retirement, [appellant’s] case was
             transferred to this court on April 23, 2012. The
             original PCRA petition was again amended on
             August 20, 2012 and December 16, 2013.              On
             May 10, 2012[,] this court listed the case for oral
             argument to occur on July 13, 2012, however,
             defense counsel requested that the matter be
             continued until the publication of decisions in
             pending appellate litigation relevant to issues raised
             by [appellant]. On July 16, 2014 this court found
             petitioner’s layered ineffective assistance of counsel
             claims to be meritless. Accordingly, a Rule 907
             notice of intent to dismiss the PCRA petition was
             issued. On July 31, 2014[, appellant] submitted a
             Response to 907 Notice seeking reconsideration of
             this court’s decision. On August 15, 2014[,] the
             PCRA petition was formally dismissed and [appellant]
             filed a Notice of Appeal to the Superior Court on
             September 8, 2014.

                   [Footnote 11] Memorandum Opinion,
                   Commonwealth v. Roane, No. 1867
                   and 2060 EDA 2003 (Pa.Super. Nov. 10,
                   2004).

PCRA court opinion, 4/30/15 at 1-5 (emphasis in original, footnotes 1-6 and

8-13 omitted).

       Appellant raises the following issues for our review:

             A.    Did not the prosecutor commit misconduct by
                   failing to turn over the substance of material,
                   exculpatory, statements made by suspect Lee

2
    Commonwealth v. Roane, 877 A.2d 461 (Pa. 2005).


                                      -6-
J. S35002/16


               Pompey to Detective Allen, as well as other
               police reports related to the investigation of
               the case, and were not all prior counsel
               ineffective for failing to raise and preserve this
               meritorious issue?

          B.   Was not appellant denied federal and state
               equal protection of the law by the prosecutor’s
               exclusion of venirepersons from the petit jury
               because of race, and were not all prior counsel
               ineffective for failing to raise and preserve this
               meritorious issue?

          C.   Was not appellant denied state and federal due
               process    of   law    when     the     prosecutor
               intentionally   presented      “bad     character”
               witnesses who, unbeknownst to defense
               counsel, were police officers whose knowledge
               of appellant’s reputation derived solely from
               their role investigating an unrelated crime
               appellant allegedly committed, and were not all
               prior counsel ineffective for failing to raise and
               preserve this meritorious issue?

          D.   Did not the Commonwealth improperly use
               appellant’s     expunged       juvenile      arrest
               photograph to obtain and introduce at trial an
               identification   of     him     by     the     sole
               Commonwealth eyewitness, and were not all
               prior counsel ineffective for failing to raise and
               preserve this meritorious issue?

          E.   Did not the trial court err by effectively
               instructing the jury that it must find that
               malice existed if the killing occurred in the
               course of a robbery, thus creating an
               unconstitutional mandatory presumption of
               malice, and were not all prior counsel
               ineffective for failing to raise and preserve this
               meritorious issue?

          F.   Did not the trial court err when it gave a
               contradictory and incorrect charge to the jury
               on reasonable doubt that violated due process


                                  -7-
J. S35002/16


                  of law by diminishing the prosecutor’s burden
                  of proof[,] and were not all prior counsel
                  ineffective for failing to raise and preserve this
                  meritorious issue?

            G.    Is not appellant entitled to relief under the
                  PCRA because his conviction resulted from
                  constitutionally ineffective assistance of trial
                  counsel, post-verdict motion/direct appeal
                  counsel, and PCRA counsel due to their failure
                  to raise and preserve the above issues and
                  their failure to allege the ineffectiveness of
                  preceding counsel?

            H.    Does not the imposition of a life without parole
                  sentence for a juvenile convicted of second
                  degree murder violate the Eighth Amendment
                  to the United States Constitution and Article I,
                  Section 13 of the Pennsylvania Constitution?

Appellant’s brief at 4-5.3

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, 609 Pa.
            442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
            A PCRA court’s credibility findings are to be accorded
            great deference, and where supported by the record,
            such determinations are binding on a reviewing

3
   At the outset, we note that the Pennsylvania Rules of Appellate Procedure
limit a principal brief to 14,000 words, unless the brief does not exceed
30 pages. Pa.R.A.P. 2135(a)(1). Where the brief exceeds 30 pages, a
certificate of compliance with the 14,000 word-count limit must be filed. Id.
Here, appellant’s principal brief is 122 pages in length—over four times the
maximum page length prescribed by Rule 2135(a)(1). Counsel, however,
filed a petition pursuant to Rule 2135(a)(1) requesting permission to exceed
the brief’s maximum word count and page limit. See DeMasi v. DeMasi,
530 A.2d 871, 874 n.1 (Pa.Super. 1987), appeal denied, 539 A.2d 811 (Pa.
1988). We will grant appellant’s petition and consider all issues on their
merits.


                                     -8-
J. S35002/16


            court. Id. at 305 (citations omitted). To obtain
            PCRA relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one or more of the errors
            enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,
            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic or tactical decision by counsel[.]”            Id.
            § 9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [appellant] could
            have had review as a matter of right has ruled on
            the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
            issue is waived if [appellant] could have raised it but
            failed to so before trial, at trial, . . . on appeal or in a
            prior state postconviction proceeding.”                  Id.
            § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015). Before we can

begin to address appellant’s issues on the merits, we must first determine if

appellant’s issues were properly preserved for appeal, and if so, whether his

issues are cognizable for the purposes of collateral review. We shall review

each issue to determine whether it has been properly preserved for appeal

and is cognizable for collateral review individually.

      Under the PCRA, an individual is eligible for post-conviction relief if the

conviction was the result of “a violation of the Constitution of this

Commonwealth or the Constitution or laws of the United States which, in the

circumstances of the particular case so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(i).




                                       -9-
J. S35002/16


      The PCRA also permits relief when a conviction is the result of

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

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

reliable adjudication of guilt or innocence could have taken place.”         Id. at

§ 9543(a)(2)(ii).   For cases in which a claim of trial error is being raised

under the guise of an ineffective assistance of counsel claim, our supreme

court has issued the following warning:

            PCRA claims are not merely direct appeal claims that
            are made at a later stage of the proceedings,
            cloaked in a boilerplate assertion of counsel’s
            ineffectiveness. In essence, they are extraordinary
            assertions that the system broke down. To establish
            claims of constitutional error or ineffectiveness of
            counsel, the petitioner must plead and prove by a
            preponderance of evidence that the system failed
            (i.e., for an ineffectiveness or constitutional error
            claim, that in the circumstances of his case, including
            the facts established at trial, guilt or innocence could
            not have been adjudicated reliably), that his claim
            has not been previously litigated or waived, and
            where a claim was not raised at an earlier stage of
            the proceedings, that counsel could not have had a
            rational strategic or tactical reason for failing to
            litigate these claims earlier.

Commonwealth v. Rivers, 786 A.2d 923, 929 (Pa. 2001).

      As we review appellant’s issues, we also must determine whether

appellant’s claims have been previously litigated or waived.             The PCRA

requires that, in order for a petitioner to be eligible for relief, his or her claim

cannot   have    been   “previously    litigated   or   waived.”    42   Pa.C.S.A.

§ 9543(a)(3). The PCRA mandates that an issue is waived if “the petitioner



                                      - 10 -
J. S35002/16


could have raised it but failed to do so before trial, at trial, during unitary

review,   on    appeal   or     in    a   prior   state   post-conviction   proceeding.”

42 Pa.C.S.A. § 9544(b).              Our supreme court has stated that “a PCRA

petitioner’s    waiver   will   only      be   excused    upon   a   demonstration    of

ineffectiveness of counsel in waiving the issue.”                 Commonwealth v.

Albrecht, 720 A.2d 693, 700 (Pa. 1998).

      When considering whether counsel was ineffective, we are governed

by the following standard:

                     The governing legal standard of review of
               ineffective   assistance of  counsel  claims is
               well-settled:

                           [C]ounsel is presumed effective,
                    and to rebut that presumption, the PCRA
                    petitioner    must    demonstrate      that
                    counsel’s performance was deficient and
                    that such deficiency prejudiced him.
                    Strickland v. Washington, 466 U.S.
                    668 (1984). This Court has described
                    the Strickland standard as tripartite by
                    dividing the performance element into
                    two          distinct         components.
                    Commonwealth v. Pierce, 527 A.2d
                    973, 975 (Pa. 1987). Accordingly, to
                    prove counsel ineffective, the petitioner
                    must     demonstrate     that   (1)     the
                    underlying legal issue has arguable
                    merit; (2) counsel’s actions lacked an
                    objective reasonable basis; and (3) the
                    petitioner was prejudiced by counsel’s
                    act or omission.       Id.    A claim of
                    ineffectiveness will be denied if the
                    petitioner’s evidence fails to satisfy any
                    one of these prongs.




                                            - 11 -
J. S35002/16


            Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa.
            2012) (citations formatted).      Furthermore, “[i]n
            accord with these well-established criteria for review,
            [an appellant] must set forth and individually discuss
            substantively each prong of the Pierce test.”
            Commonwealth v. Fitzgerald, 979 A.2d 908, 910
            (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015).

                                          I.

      The first issue appellant raises for our review is whether the

Commonwealth “committed misconduct by failing to turn over the substance

of material, exculpatory statements made by suspect Lee Pompey to

Detective Allen, as well as other police reports related to the investigation of

the case.” (Appellant’s brief at 32.) Appellant also claims that all previous

counsel were ineffective for failing to raise this issue either during or after

trial or on direct appeal. (Id.)

      Here, appellant did not raise this issue on direct appeal; however, his

failure to do so is excused because he is alleging ineffective assistance of

counsel.   In order to determine whether this issue has arguable merit

pursuant   to   the   Pierce   test,   we      shall    review    appellant’s   claim   of

prosecutorial   misconduct     for   failing    to     disclose   material   exculpatory

information on its merits.4




4
  Because appellant’s first six issues are layered ineffective assistance of
counsel claims, we shall review all six issues on their merits to determine
whether appellant has met the arguable merit prong under Pierce.


                                       - 12 -
J. S35002/16


             In interpreting [] federal precedent [], this Court has
             explained that, in order to establish a Brady[5]
             violation, a defendant must show that: (1) evidence
             was suppressed by the state, either willfully or
             inadvertently; (2) the evidence was favorable to the
             defendant, either because it was exculpatory or
             because it could have been used for impeachment;
             and (3) the evidence was material, in that its
             omission resulted in prejudice to the defendant. See
             Commonwealth v. Lambert, 584 Pa. 461, 471,
             884 A.2d 848, 854 (2005); Commonwealth v.
             Collins, 585 Pa. 45, 68, 888 A.2d 564, 577-78
             (2005). However, “[t]he mere possibility that an
             item of undisclosed information might have helped
             the defense, or might have affected the outcome of
             the trial, does not establish materiality in the
             constitutional    sense.”        Commonwealth        v.
             Chambers, 570 Pa. 3, 29, 807 A.2d 872, 887
             (2002) (citation omitted and emphasis added).
             Rather, evidence is material “only if there is a
             reasonable probability that, had the evidence been
             disclosed to the defense, the result of the proceeding
             would have been different. A reasonable probability
             is a probability sufficient to undermine confidence in
             the outcome.”      Id. at 29, 807 A.2d at 887-88
             (quoting [United States v. Bagley, 473 U.S. 667,
             682 (1985)]).

Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (plurality). “When

conducting this analysis in the PCRA context, a defendant must establish

that the alleged Brady violation ‘so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.’” Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa.Super. 2012),

appeal     denied,   78   A.3d   1090    (Pa.   2013),   citing   42   Pa.C.S.A.

§ 9543(a)(2)(i); see also Commonwealth v. Copenhefer, 719 A.2d 242,


5
    Brady v. Maryland, 373 U.S. 83 (1963).


                                     - 13 -
J. S35002/16


259 (Pa. 1998), cert. denied, 528 U.S. 830 (1999). Moreover, “[t]he mere

possibility that an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial, does not establish

‘materiality’ in the constitutional sense.” Commonwealth v. Cam Ly, 980

A.2d 61, 76 (Pa. 2009), quoting United States v. Agurs, 427 U.S. 97,

109-110 (1976).

     In the instant appeal, appellant is unable to establish that the

information allegedly withheld by the Commonwealth was material to his

defense.   Appellant is also unable to establish that the material that he

claims the Commonwealth withheld, “so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” Specifically, appellant alleges that Lee Pompey made a “damaging

statement” while in police custody, and that the Commonwealth failed to

disclose his statement to the defense. (Appellant’s brief at 33.) Appellant

also alleges that a “reasonable reading” of Detective Hildred Allen’s

testimony, “is that Pompey provided information that would have been

favorable to the defense, exculpated appellant, or led to information

exculpating appellant.” (Id.)

     As noted by the PCRA court, this is not reflected by the record.

Detective Allen’s testimony at trial regarding his interaction with Pompey

was as follows:

           Q:     Detective, calling your attention to January of
                  1984[,] did you in the performance of your


                                   - 14 -
J. S35002/16


               duties as the assigned homicide investigator
               into the death of William Crandall, Senior, did
               you come into contact with a person by the
               name of Anthony Pompay [sic]?

          A:   Yes, I did.

          Q:   Where did you see Mr. Pompay [sic]?

          A:   At the Homicide Division, 8th and Race.

          Q:   When was that that you saw him, sir?

          A:   It was approximately a couple of days after the
               homicide. Approximately January 25 or 26.

          Q:   Now, who      brought      Mr.   Pompay   [sic]     to
               Homicide?

          A:   Officer [Anthony] Melfi.

          Q:   Did   you   spend       sometime      [sic]       with
               Mr. Pompay [sic]?

          A:   Yes, I did.

          Q:   Approximately how much time would you say?

          A:   I spent approximately four, five hours with
               him.

          Q:   Now, during that four or five hours how much
               of that period of time was Officer Melfi
               present?

          A:   He was only present for maybe five minutes or
               so.

          Q:   Now, Mr. Pompay [sic], what was his apparent
               condition at the time you saw him?

          A:   He appeared to me to be very intoxicated.




                                 - 15 -
J. S35002/16


            Q:     Did you charge Mr. Pompay [sic] with any
                   crime in connection with the death of
                   Mr. Crandall?

            A:     No, I did not.

            Q:     What, if anything,         did   you   do   with
                   Mr. Pompay [sic]?

            A:     I talked to Mr. Pompay [sic] about the incident,
                   the homicide, and I had him fingerprinted and
                   photographed.

            Q:     And then what did you do?

            A:     I released him.

            Q:     Did you show him to Maria Davis at all?

            A:     No.

Notes of testimony, 3/19/85 at 249-251.        Defense counsel did not cross-

examine Detective Allen.

      At no point does the record indicate that Pompey provided exculpatory

statements to the police regarding appellant’s role in Mr. Crandall’s death.

We, therefore, find that appellant’s claim that the Commonwealth improperly

withheld exculpatory evidence is without underlying merit.            Because

appellant’s claim lacks underlying merit, his ineffective assistance of counsel

claim must fail.

                                      II.

      In his second issue, appellant avers that he was “denied federal and

state equal protection of the law by the prosecutor’s exclusion of

venire-persons from the petit jury because of race.”      (Appellant’s brief at


                                     - 16 -
J. S35002/16


38.) Appellant further avers that all prior counsel were ineffective for failing

to raise and preserve the issue.     (Id.)    The Commonwealth argues that

appellant failed to meet the burden of proof for a Batson6 challenge on

collateral review. (Commonwealth’s brief at 13.)

       Before we can address appellant’s claim on its merits, we must first

determine the applicability of Batson to appellant’s case.        Batson was

decided by the United States Supreme Court on April 30, 1986, which was

over one year after appellant’s trial concluded on March 22, 1985. At the

time of appellant’s trial and jury selection, Swain v. Alabama, 380 U.S.

202 (1965), controlled in cases involving allegations of racial discrimination

in jury selection.7   The Supreme Court, however, held that a petitioner is

entitled to a retroactive application of Batson in matters where a direct




6
    Batson v. Kentucky, 476 U.S. 79 (1986).
7
   In Swain, the United States Supreme Court assigned the burden of
proving racial discrimination in jury selection to the defendant--mandating
that the defendant must overcome the presumption that the prosecution in a
criminal case was using peremptory strikes to remove African Americans
based on “acceptable considerations related to the case he is trying, the
particular defendant involved and the particular crime charged.” Id. at 223.
The Court stated further that the presumption is overcome in cases where,
“the State has not seen fit to leave a single [African American] on any jury
in a criminal case.” Id. at 224. In Batson, the Court overruled Swain and
placed the burden of proving that racial discrimination did not take place
during jury selection with the prosecution. A defendant must make a
prima facie showing of racial discrimination during jury selection, and, upon
the trial court’s determination that prima facie racial discrimination exists,
the prosecution must provide a neutral explanation of its peremptory strikes.
Batson, 467 U.S. at 100.


                                     - 17 -
J. S35002/16


appeal was pending at the time Batson was decided. Griffith v. Kentucky,

479 U.S. 314, 328 (1987).

      “However, it is well-settled that in order for a new law to apply

retroactively to a case pending on direct appeal, the issue had to be

preserved in the trial court and at all subsequent stages of the adjudication

up to and including the direct appeal.” Commonwealth v. Smith, 17 A.3d

873, 893-894 (Pa. 2011), cert. denied,          U.S.     , 133 S.Ct. 24 (2012),

citing Commonwealth v. Freeman, 827 A.2d 385, 395 (Pa. 2003),

cert. denied, 543 U.S. 822 (2004) (citations omitted). Here, appellant did

not raise an issue of racial discrimination in the jury selection either at trial

or on direct appeal.    He does not waive the issue, however, because he

raises the issue on collateral review under the guise of an ineffective

assistance of counsel claim. Therefore, we will review the issue on its merits

while applying the rule in Batson retroactively to appellant’s case.        See

Albrecht, 720 A.2d at 700 (excusing waiver upon a demonstration of

ineffective assistance of counsel).

      Before we review appellant’s Batson claim on its merits, we must first

address appellant’s burden of proof.      While Batson shifted the burden of

proof from defendants to prosecutors, such protection does not extend to

collateral review.

            We have held, however, that in order to succeed on
            an unpreserved claim of racial discrimination in jury
            selection in the context of a claim of ineffective
            assistance of counsel, a post-conviction petitioner


                                      - 18 -
J. S35002/16


           may not rely on the burden-shifting paradigm
           established by Batson. Rather, he must prove by a
           preponderance of the evidence, in the first instance
           and throughout, actual, purposeful discrimination by
           the prosecutor, in addition to all other requirements
           essential to overcome the underlying claim.
           [Commonwealth v. Uderra, 862 A.2d 74, 87 (Pa.
           2004)], see also Commonwealth v. Williams, 581
           Pa. 57, 863 A.2d 505, 514-515 (2004). Placing this
           high burden on a post-conviction petitioner comports
           with the heightened criteria for obtaining post-
           conviction relief. Uderra, 862 A.2d at 86. . . . See
           Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d
           1125, 1142 (2009) (explaining that a post-conviction
           petitioner is not entitled to rely on Batson’s burden
           shifting approach, but instead bears the burden in
           the first instance and throughout of establishing
           actual, purposeful discrimination by a preponderance
           of the evidence).

Smith, 17 A.3d at 895.

           To satisfy his burden, a defendant raising a Batson
           claim must “make an adequate record specifically
           identifying the race of all the venirepersons who had
           been removed by the prosecution, the race of the
           jurors who served, or the race of jurors acceptable to
           the Commonwealth who had been stricken by the
           defense,” since otherwise we lack an adequate
           record upon which to evaluate the Batson claim.
           Commonwealth v. Spence, 534 Pa. 233, 247, 627
           A.2d 1176, 1182-83 (1993).

Commonwealth v. Simpson, 66 A.3d 253, 262 (Pa. 2013).

     Here, appellant avers that trial counsel was ineffective because he

failed to “object to the prosecutor’s use of his peremptory strikes in this

case, to develop a record of the discriminatory use of strikes, and/or

demand race-neutral explanations for the prosecutor’s actions.” (Appellant’s

brief at 49.) In an attempt to meet his burden as promulgated by Simpson,


                                   - 19 -
J. S35002/16


appellant has identified the race of 39 of the 46 people who were not struck

for cause.    (Appellant’s brief at 50.)   Appellant claims to have determined

the race of 12 of the 15 people struck by the Commonwealth; of the 12, the

Commonwealth exercised peremptory strikes against 9 African Americans,

1 Hispanic person, and 1 white person. (Id.) Appellant further avers that

the Commonwealth exercised peremptory strikes against 2 of a possible

17 white individuals.      (Id. at 50-51.)      Appellant did not exercise a

peremptory strike against any African Americans who the Commonwealth

accepted to sit on the jury. (Id. at 51.) The final jury consisted of 5 white

jurors, 3 African American jurors, 1 Hispanic juror, and appellant was not

able to determine the race of 3 remaining jurors.8 (Id.)

        In Uderra, our supreme court concluded that in a case where no

explanation was available as to why particular jurors were stricken, an

appellant’s “efforts to compare characteristics of empaneled jurors with

stricken ones are abstract and of very limited value in terms of satisfaction

of his burden of proof.”      Uderra, 862 A.2d at 87.        Moreover, because

appellant was not able to determine the race of three members of the jury,

we agree with the PCRA court’s determination that appellant has not met his

burden in this case. As aptly stated by the PCRA court,

              [B]ecause the racial identification of all of the
              “venirepersons at issue” is not known, [appellant] is
              unable to fully “present a record identifying the race
              or ethnicity of the venirepersons stricken by the

8
    Appellant avers that both alternates were white. (Id.)


                                      - 20 -
J. S35002/16


            Commonwealth, the race of prospective jurors
            acceptable to the Commonwealth but stricken by the
            defense, and the racial composition of the final jury
            selected.”

PCRA court opinion, 4/30/15 at 17, quoting Uderra, 862 A.2d at 84.

Therefore, we find that appellant’s Batson claim is without arguable merit.9

       We next review appellant’s claim on its merits under Swain. As noted

supra, Swain placed a high burden of proof on a defendant to claim racial

discrimination during jury selection, requiring a defendant to overcome the

presumption that the prosecutor is “using the State’s challenges to obtain a

fair and impartial jury to try the case before the court.” Swain, 380 U.S. at

222.

       In an attempt to meet his burden of proving actual, purposeful

discrimination by the Commonwealth during jury selection, appellant relies

primarily on the following:   a statistical sampling of death penalty cases

collected by University of Iowa Law School Professor David Baldus that were

tried in Philadelphia County between September 10, 1980 and April 15,

1986, during the administration of then-Philadelphia County District Attorney


9
  Appellant devotes several pages of his brief alleging that trial counsel was
ineffective for failing to anticipate the United States Supreme Court’s holding
in Batson, which was decided while appellant’s case was pending on direct
appeal. (See appellant’s brief at 63-67.) Contrary to appellant’s allegation,
our supreme court has held that “[c]ounsel clearly cannot be faulted for
failing to raise a Batson objection at trial because Batson did not yet exist.
See, e.g., [Commonwealth v. Gribble, 863 A.2d 455, 464 (Pa. 2004)]
(‘Counsel cannot be deemed ineffective for failing to predict developments or
changes in the law.’).” Commonwealth v. Sneed, 899 A.2d 1067, 1076
(Pa. 2006).


                                    - 21 -
J. S35002/16


Edward G. Rendell,10 and a training videotape that was produced by the

Philadelphia County District Attorney’s Office in 1987. (Appellant’s brief at

43-46.) Appellant avers that the statistical sampling from Professor Baldus’

study     of   death   penalty   cases      from   Philadelphia   County    during

Governor Rendell’s tenure as Philadelphia County District Attorney shows

that prosecutors exercised peremptory strikes against 63% of strike-eligible

African Americans. (Id. at 43-44.) Appellant further avers that the alleged

discriminatory practices of the Philadelphia County District Attorney’s office

were confirmed by the “McMahon tape,” which was discovered in 1997. (Id.

at 45.)        The “McMahon tape” was produced in 1987 and therein,

Jack McMahon, a now-former Philadelphia County Assistant District Attorney,

“makes a number of highly inflammatory comments implying that he

regularly seeks to keep qualified African Americans from serving on juries.”

Wilson v. Beard, 426 F.3d 653, 656 (3d Cir. 2005).

        Neither   Professor   Baldus’s     study   nor   the   existence   of   the

McMahon tape, as reprehensible and inflammatory as its contents may be,

satisfies appellant’s burden of proof in the context of the PCRA.

               This   Court    has  repeatedly  rejected  similar
               arguments, holding that the mere existence of the
               McMahon tape does not demonstrate prejudice in a
               particular case. Commonwealth v. Williams, 581
               Pa. 57, 863 A.2d 505, 523 (2004); Commonwealth

10
   Then-District Attorney Rendell served as Philadelphia County District
Attorney from 1978 through 1985. He subsequently served as Governor of
the Commonwealth, therefore, he will be referred to hereinafter as
“Governor Rendell.”


                                         - 22 -
J. S35002/16


             v. Rollins, 558 Pa. 532, 738 A.2d 435, 443 n. 10
             (1999); see Commonwealth v. Marshall, 570 Pa.
             545,    810    A.2d   1211,    1228-29   (2002);
             Commonwealth v. Lark, 560 Pa. 487, 746 A.2d
             585, 588-89 (2000). Similarly, we have rejected
             speculative arguments based on the Baldus study.
             See [Commonwealth v. Washington, 927 A.2d
             586, 610 (Pa. 2007)]; Williams, 863 A.2d at 523;
             Commonwealth v. Morris, 573 Pa. 157, 822 A.2d
             684, 698 (2003).

Smith, 17 A.3d at 897. We, therefore, find that appellant has not met his

burden of proof to successfully raise a Swain claim as a layered ineffective

assistance of counsel claim, and accordingly, his claim fails.

                                      III.

      In his third issue for our review, appellant avers that he was “denied

state and federal due process of law when the prosecutor intentionally

presented ‘bad character’ witnesses,” who were police officers who only

knew of appellant’s reputation through their role in investigating an

unrelated crime, and that all preceding counsel were ineffective for failing to

raise this issue.   (Appellant’s brief at 69.)   The Commonwealth avers that

this issue is not cognizable for collateral review because it was previously

litigated.   (Commonwealth’s brief at 14.)       Specifically, the Commonwealth

argues that this court addressed appellant’s third issue on direct appeal in

1988. Appellant denies that the issue was previously litigated, as he claims

that the issue in the instant appeal is limited to whether “the prosecutor

failed to disclose that both William Schatzle and William Peake were police




                                     - 23 -
J. S35002/16


officers, whose basis of knowledge stemmed only through a criminal

investigation.” (Appellant’s brief at 69 n.20.)

      Before we can address appellant’s claim on its merits, we must first

determine whether the issue has been previously litigated. A claim that has

been previously litigated is not cognizable for collateral relief. 42 Pa.C.S.A.

§ 9544(a)(2).     The PCRA defines a matter as having been previously

litigated when “the highest appellate court in which the petitioner could have

had review as a matter of right has ruled on the merits of the issue.” Id.

“[T]he fact that a petitioner presents a new argument or advances a new

theory in support of a previously litigated issue will not circumvent the

previous litigation bar.”   Commonwealth v. Burkett, 5 A.3d 1260, 1270

(Pa.Super. 2010), citing Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).

      In the present case, appellant raised the following issue on direct

appeal: “[Appellant] next contends that the [trial] court erred in permitting

a witness to testify for the Commonwealth in rebuttal that [appellant’s]

reputation was that he was not a peaceful person.”            Roane, No. 1874

Philadelphia 1987 at *5. This court held that Officer Schatzle, who testified

for the Commonwealth, was properly permitted to testify by the trial court in

order to “rebut the testimony of [] appellant’s character witnesses,” and that

the trial court did not abuse its discretion.     Id.   Moreover, appellant also

raised an ineffective assistance of counsel claim regarding trial counsel’s



                                     - 24 -
J. S35002/16


performance as it related to Officer Schatzle’s testimony.11           This court

reached the following conclusion as to whether trial counsel was ineffective:

                   There is clearly no merit in [] appellant’s third
            allegation of ineffective assistance of counsel.
            Counsel did not elicit testimony concerning []
            appellant’s participation in a robbery.        Defense
            counsel was endeavoring to show that Mr. Sc[h]atzle
            did not reside in the same neighborhood as
            [appellant] who resided in North Philadelphia and
            Sc[h]atzle lived in Kensington. All counsel did was
            inquire as to how [appellant’s] name came up in
            conversations with people who knew him. He did not
            solicit the reply that he was a suspect in a robbery
            case. Any prejudice to [] appellant by the reply was
            dispelled by the court’s cautionary instruction. See
            Commonwealth v. Travaglia, 502 Pa. 474, 467
            A.2d 288 (1983).

Roane, No. 1874 Philadelphia 1987, at *8.

      We, therefore, find that appellant’s third issue has been previously

litigated, having been decided by a previous panel of this court, and is not

cognizable under the PCRA. Accordingly, no relief can be granted.

                                      IV.

      For his fourth issue on appeal, appellant avers that the police

improperly used a photograph of appellant for identification purposes from a

juvenile record that had been ordered expunged by the trial court, and that



11
   Appellant’s direct appeal was decided prior to our supreme court’s decision
in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (holding that review
of counsel ineffectiveness claims should be deferred until collateral review),
therefore, at the time of appellant’s direct appeal, ineffective assistance of
counsel claims were considered on direct appeal. See Commonwealth v.
Hubbard, 372 A.2d 687 (Pa. 1977).


                                     - 25 -
J. S35002/16


all preceding counsel were ineffective for failing to raise this issue.

Specifically, appellant alleges that the police improperly used the expunged

photograph     in   order   to   obtain    an      identification   from   Maria   Davis.

(Appellant’s brief at 79.)       Appellant further alleges that trial counsel was

ineffective for failing to object at trial on the grounds that Davis’

identification did not have an independent basis, but rather was derived

from illegally obtained evidence. (Id. at 82.)

      As noted by the PCRA court, at the time of appellant’s 1985 trial,

             [t]here [was] no per se rule against the use of
             “mugshots” in this Commonwealth as a method of
             identification. Commonwealth v. Allen, 448 Pa.
             177, 292 A.2d 373 (1972).          The use of any
             photograph during an identification procedure [was]
             analyzed under the facts and circumstances of each
             particular case. Id. at 179-180, 292 A.2d at 374.

Commonwealth v. Brown, 512 A.2d 596, 598 (Pa. 1986); see also PCRA

court opinion, 4/30/15 at 21.

      This issue lacks arguable merit. By defense counsel’s own admission,

it is unclear whether the photograph used by the police was, in fact,

expunged. At the evidentiary hearing, defense counsel stated: “I think our

position was initially, we thought there was only one juvenile photo, and it

ended up there [were] two juvenile photos. And the expungement order, it

was unclear to us, or it became unclear, during the course of the hearing, as

to which photo was actually expunged.” (Notes of testimony, 7/13/12 at 23-

24.) Because defense counsel could not determine whether the photograph



                                          - 26 -
J. S35002/16


in question was actually expunged, appellant has not established by a

preponderance of the evidence that this claim has arguable merit, and he is,

therefore, not entitled to relief.

                                      V.

      In his fifth and sixth issues on appeal, appellant raises issues with the

trial court’s instructions to the jury were improper, and he further claims

that all preceding counsel were ineffective for failing to raise this issue.

Appellant specifically avers that the trial court improperly defined the

element of malice in regards to a second-degree murder charge to the jury.

(Appellant’s brief at 83-84.) Case law applicable at the time of appellant’s

trial indicates that the Commonwealth was required to prove beyond a

reasonable doubt that a defendant committed the underlying felony with the

requisite mens rea in order to “impute[] the malice incident to the

intentional felony over to the killing, which, moreover, must be accomplished

in furtherance of the intentional felony.” Commonwealth v. Rawls, 477

A.2d 540, 543 (Pa.Super. 1984), citing Commonwealth v. Waters, 418

A.2d 312 (Pa. 1980) (emphasis in original).

      When reviewing jury instructions, we are governed by the following

standard:

             Our standard of review in assessing a trial court’s
             jury instructions is as follows:

                   [W]hen evaluating the propriety of jury
                   instructions, this Court will look to the
                   instructions as a whole, and not simply


                                     - 27 -
J. S35002/16


                 isolated portions, to determine if the
                 instructions were improper. We further
                 note that, it is an unquestionable maxim
                 of law in this Commonwealth that a trial
                 court has broad discretion in phrasing its
                 instructions, and may choose its own
                 wording so long as the law is clearly,
                 adequately, and accurately presented to
                 the jury for its consideration.      Only
                 where there is an abuse of discretion or
                 an inaccurate statement of the law is
                 there reversible error.

           Commonwealth v. Kerrigan, 920 A.2d 190, 198
           (Pa.Super. 2007) (internal citations, quotation
           marks, and brackets omitted).

Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa.Super. 2007).

           We have explained the abuse of discretion standard
           as follows:

                 It is not sufficient to persuade the
                 appellate court that it might have
                 reached a different conclusion[;] it is
                 necessary to show an actual abuse of the
                 discretionary power.         An abuse of
                 discretion will not be found based on a
                 mere error of judgment, but rather exists
                 where the court has reached a conclusion
                 [that] overrides or misapplies the law, or
                 where the judgment exercised is
                 manifestly unreasonable, or the result of
                 partiality, prejudice, bias or ill-will.

Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. 2013), quoting

Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007).

     In the instant case, the trial court provided the jury with the following

instruction regarding second-degree murder:




                                   - 28 -
J. S35002/16


                I shall now define for you murder in the second
           degree which is known as felony murder. A criminal
           homicide constitutes murder of the second degree
           when it is committed while the defendant was
           engaged as a principal or a co-conspirator in the
           perpetration of a felony.

                 Perpetration of a felony is defined as the act of
           the defendant in engaging in or being an accomplice
           or a co-conspirator in the commission of or attempt
           to commit any one of six enumerated felonies of
           which robbery is one.

                 Murder in the second degree, therefore, is
           known as felony murder and the malice necessary to
           make even an unintentional or accidental killing
           murder is constructively inferred from the malice
           incident to the perpetration of the initial felony.

                The malice of the initial felony attaches to
           whatever else the accused may do in connection
           therewith.

                 Under the felony murder rule, the killing need
           not even be done by the defendant in a particular
           case, but it may have been done by an accomplice or
           co-conspirator acting in furtherance of the felonious
           undertaking.

                 In order to find the defendant guilty of murder
           in the second degree, you must find that the
           Commonwealth has established beyond a reasonable
           doubt, number one, that the defendant or an
           accomplice or co-conspirator caused the death of
           another person; and, two, that the killing occurred
           while the defendant, an accomplice or co-conspirator
           was engaged in the commission of a felony. And this
           underlying felony here is alleged to be robbery.

Notes of testimony, 3/20/85 at 321-322.

     Upon careful review of the trial court’s instructions to the jury, at no

point did the trial court appear to relieve the Commonwealth of its burden of


                                   - 29 -
J. S35002/16


proving all elements of the crimes charged beyond a reasonable doubt.

Case law in effect at the time of appellant’s trial indicates that a jury

instruction that permitted a jury to impute malice to an actual killing based

on the Commonwealth’s proof beyond a reasonable doubt that a defendant

committed the underlying felony with the requisite mens rea is proper.

Therefore, we find that appellant’s claim is without arguable merit, and,

accordingly, his ineffective assistance of counsel claim must fail.

                                        VI.

       In his sixth issue overall, and his second issue relating to jury

instructions, appellant avers that the trial court erred in its instruction to the

jury regarding reasonable doubt, and that all preceding counsel were

ineffective for failing to raise or preserve this issue.    (Appellant’s brief at

86.) Specifically, appellant alleges that the trial court’s instructions to the

jury   regarding   reasonable   doubt    were   “contradictory,   incorrect,   and

ultimately diminished the prosecutor’s burden of proof, and thus violated

[appellant’s] right to due process of law. (Id. (citations omitted).)

       The trial court provided the following instructions regarding reasonable

doubt:

                  I charge you now on the burden of proof.
            There is no burden of proof and there is no burden of
            disproof on the part of the defendant. There is only
            one burden of proof and that is the burden of the
            Commonwealth. And the measure of that burden is
            to convince you of the guilt of the defendant beyond
            a reasonable doubt.



                                     - 30 -
J. S35002/16


                 Now, the reasonable doubt standard does not
           apply to every specific detailed fact of a criminal
           case, but only to the essential elements of the crime.
           And as I said a moment ago, in a homicide case
           there are only three essential elements: that a
           death has occurred, that the death resulted from
           criminal agency, and that the defendant is legally
           responsible for that death.

           ....

                 Now beyond a reasonable doubt. What does
           that mean? Beyond a reasonable doubt does not
           mean beyond all doubt or beyond any doubt. It does
           not mean proof to an absolute certainty or to a
           mathematical certainty, nor must the proof
           demonstrate the complete impossibility of innocence.
           A mere hesitation before reaching a verdict is not in
           and of itself a reasonable doubt.

                 The phrase beyond a reasonable doubt means
           just what it says: Proof of guilt beyond a reasonable
           doubt.

                 A reasonable doubt must fairly arise out of the
           evidence that was presented, or out of the lack of
           evidence, with respect to each element of the crime.
           It must be a real doubt and it cannot be a doubt
           fancied or conjured up in the mind of you, the jury,
           to escape an unpleasant verdict. It must be an
           honest doubt arising out of the evidence itself, the
           kind of doubt that would restrain a reasonable man
           or woman from acting in a matter of importance to
           himself or herself.

                 If you have such a doubt as to the guilt of the
           defendant, or as to any of the factors upon which his
           guilt may depend, it is your duty to acquit him.

Notes of testimony, 3/20/85 at 327-330.

     Our supreme court promulgated the following definition of reasonable

doubt:


                                   - 31 -
J. S35002/16


             A variety of definitions of “reasonable doubt,” all
             expressing substantially the same thought, have
             been approved by the appellate Courts--See
             Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398
             [(1939)]. A standard and approved form of charge
             on this point would be:      “The defendant comes
             before you presumed to be innocent and the burden
             is upon the Commonwealth to prove his guilt beyond
             a reasonable doubt. A reasonable doubt cannot be a
             doubt fancied or conjured up in the minds of the jury
             to escape an unpleasant verdict; it must be an
             honest doubt arising out of the evidence itself, the
             kind of a doubt that would restrain a reasonable man
             (or woman) from acting in a matter of importance to
             himself (or herself).”

Commonwealth v. Donough, 103 A.2d 694, 697 (Pa. 1954); see also

Commonwealth v. Young, 317 A.2d 258, 262 (Pa. 1974) (reaffirming the

jury instruction promulgated by Donough); Commonwealth v. Bryant,

462 A.2d 785, 789 (Pa. 1983) (acknowledging Donough as the standard in

reasonable doubt jury instructions).

      Here, the record supports the conclusion that the trial court derived its

jury instructions regarding reasonable doubt from Donough. At the time of

appellant’s trial, the language used in Donough was still recommended for

jury instructions by our supreme court.         Therefore, appellant’s averments

indicating that the trial court lowered the Commonwealth’s burden of proof

through its jury instructions are without merit, and accordingly his claim

must fail.




                                       - 32 -
J. S35002/16


                                        VII.

         In his seventh issue, appellant raises various ineffective assistance of

counsel claims as they relate to trial counsel, post-verdict motion counsel,

and PCRA counsel. Specifically, in addition to the issues previously raised in

the present appeal, appellant avers several additional instances of ineffective

assistance of counsel,.      (Appellant’s brief at 102-110.)    Appellant further

avers that Attorney Miller, appellant’s counsel for post-verdict motions and

direct appeal, was ineffective due to his failure to “investigate, raise, litigate

and preserve” the issues listed above. (Id. at 113.) Finally, appellant avers

that his first PCRA counsel, Attorney Marinaro, was ineffective for failing to

raise the trial issues discussed above, in addition to failing to claim that

Attorney Miller provided ineffective assistance on direct appeal.         (Id. at

116.)

         We shall address appellant’s remaining ineffective assistance of

counsel claim individually:12

a.       Failure to Properly Prepare for Trial

         Appellant first avers that Attorney Walker failed to properly prepare for

trial.    Specifically, appellant cites the alleged failure to seek discovery

regarding Pompey’s statements to Detective Allen as the grounds of his



12
   We shall address appellant’s claims in the order in which they appear in
his brief, however, if a claim was addressed as a stand-alone issue for any of
appellant’s first six issues raised on appeal, we will not address it again
under his seventh issue.


                                       - 33 -
J. S35002/16


alleged lack of proper preparation. (Appellant’s brief at 103.) This claim is

without merit.

      As noted supra, there is no indication in the record that Pompey

provided any information to the police that would prove to be exculpatory to

appellant.     Having already determined, supra, that appellant’s claim that

the police improperly withheld exculpatory evidence in violation of Brady is

without merit, it only follows that Attorney Walker was not ineffective for

failing to request discovery related to any statements made by Pompey to

Detective Allen.      Accordingly, because there is no arguable merit to

appellant’s claim, his ineffective assistance of counsel claim as it relates to

Attorney Walker’s preparation for trial is without merit.

b.    Failure to Open to the Jury

      Next, appellant avers that Attorney Walker was ineffective for failing to

deliver an opening statement to the jury. Specifically, appellant avers that

Attorney Walker’s failure to deliver an opening statement to the jury caused

him to fail to meet the “‘objective standard of reasonableness’ envisioned in

Strickland.”     (Appellant’s brief at 106.)        Appellant also summarily states

that, “[n]ever was an opening statement more crucial for the defense to give

than in a single questionable eyewitness case as the one here.” (Id.)

      Our cases indicate that trial counsel cannot be deemed ineffective

per se   for    failing    to   deliver   an    opening    statement     to   the    jury.

Commonwealth          v.    Busanet,      817      A.2d   1060,   1066    (Pa.      2002),



                                          - 34 -
J. S35002/16


cert. denied, 540 U.S. 869 (2003), citing Commonwealth v. Rawles, 462

A.2d 619, 624 (Pa. 1983) (“failure to make opening statement is within

realm of sound trial strategy”).   Accordingly, we find that this claim lacks

arguable merit, and because appellant failed to satisfy one of the Pierce

prongs, this claim must fail.

c.    Failure to Impeach Witness Maria Davis

      Appellant also avers that Attorney Walker was ineffective for his failure

to impeach Maria Davis. Specifically, appellant alleges that Attorney Walker

failed to impeach Davis with the six prior signed and inconsistent statements

that he had in his possession, and that “he made little use of any of them,

failed to develop the fact that there were six of them, and had none of them

marked as exhibits or introduced into evidence.” (Appellant’s brief at 106.)

      The record contradicts appellant’s assertion.     A review of the trial

transcript reveals that Attorney Walker attempted to impeach Davis through

an extensive cross-examination.       (See generally notes of testimony,

5/18/85 at 97-125.)       Moreover, in contradiction to appellant’s claim,

Attorney Walker directly referred to the fact that Davis spoke to the police

on six different occasions.

            Q:    Do you recall giving various statements to the
                  police?

            A:    Yes.

            Q:    In fact, you talked to the police a number of
                  times, didn’t you?



                                    - 35 -
J. S35002/16


            A:    Yes.

            Q:    In fact, you gave the police some six different
                  statements between January and the end of
                  July; isn’t that correct?

            A:    They weren’t different, I think.

            Q:    You talked to them on six different occasions;
                  isn’t that correct?

            A:    Yes.

Notes of testimony, 8/18/85 at 97-98. Throughout Attorney Walker’s entire

cross-examination of Davis, he attempts to impeach her credibility by

reading her statements from previous conversations with the police or from

testimony in court proceedings in an effort to emphasize her previous

inconsistent statements. (See id. at 106-107; 122.)

      Attorney   Walker   also   highlighted   instances   in   Davis’s   previous

testimony in which her statements regarding whether appellant had a gun in

his possession at the time of Mr. Crandall’s shooting were inconsistent.

            Q:    Okay. Now, ma’am, you testified on direct
                  that you saw my client with a gun; isn’t that
                  correct? Is that correct?

            A:    Yes.

            Q:    Ma’am, isn’t it true this is the time -- first time
                  in any of your statements or any of your
                  testimony that you have said that?

            A:    No.

            Q:    Can you enlighten me as to when you said that
                  before?



                                     - 36 -
J. S35002/16


              A:     I told the police officers that I knew who he
                     was, the detective who he was.

              Q:     When was that?

              A:     I can’t remember the date it was.

              Q:     Well, you first told the police who is was [sic]
                     July 31, 1984, right?

              A:     Yes.

              Q:     And you told them on that date that --

              A:     Yes, I think it was that day.

              Q:     So that’s the date you told them that my client
                     had a gun; is that correct?

              A:     Yes.

              ....

              Q:     Ma’am, I want to direct your attention again
                     back to the preliminary hearing that was
                     conducted on August 22. Page 15 of the notes
                     of testimony. Starting at the top of the page
                     Mr. Davis.[13] “QUESTION: Do you know if
                     Mr. Crandall fired his gun or not? ANSWER:
                     No. QUESTION: You don’t know if he did or
                     not? ANSWER: No. . . . Mr. Walker: Now,
                     you never saw my client with a gun, did you?
                     ANSWER: No.” Do you recall those questions;
                     do you recall those answers[?]

              A:     Yes.

              Q:     Why didn’t you testify on that date that
                     Mr. Roane had a gun?

              A:     Because I don’t know why.


13
     Legrome Davis, Esq., was the Commonwealth’s attorney during the trial.


                                       - 37 -
J. S35002/16


               Q:     You don’t know why?

               A:     No, I don’t.

               Q:     So on two occasions, the first one being
                      July 31, and then roughly --

               A:     On this occasion I was cut off on that one.

               Q:     But for whatever reason both on July 31 and
                      August 22 you told a police officer and you told
                      a court that my client didn’t have a gun; isn’t
                      that correct?

               A:     Yes.

               Q:     But today you’re sure that he had a gun?

               A:     Yes.

Notes of testimony, 8/18/85 at 119-123.

      Appellant avers that counsel “fail[ed] to obtain and/or utilize prior

inconsistent        statements   for   impeachment       purposes   of   a    critical

Commonwealth witness.”           (Appellant’s brief at 107.)     The record belies

appellant’s     claim,    therefore,   appellant   has    not   established   by    a

preponderance of the evidence that his claim has arguable merit, nor that

Attorney Walker’s alleged failure to impeach Davis resulted in prejudice

against appellant. Accordingly, this claim must fail.

d.    Post-Verdict/Direct Appeal Counsel was Ineffective

      Appellant next avers that his post-verdict and direct appeal counsel,

Dale Miller, Esq., rendered ineffective assistance due to his failure to “raise,

litigate, and preserve” the first seven issues appellant raises in the instant



                                        - 38 -
J. S35002/16


appeal, including the ineffective assistance of trial counsel, which, as noted

supra, was permitted at the time the direct appeal was filed in this case.

(Appellant’s brief at 113.)   We have discussed each of the issues at great

length, and have found that none of the first seven issues raised by

appellant has any merit.      Arguable merit is the first prong that a PCRA

petitioner is required to satisfy when alleging ineffective assistance of

counsel. See Pierce, 527 A.2d at 975. Because appellant failed to satisfy

the first Pierce prong, his claim of ineffective assistance of counsel against

Attorney Miller must fail.

e.    PCRA Counsel was Ineffective

      Finally, appellant avers that Attorney Marinaro did not provide

effective assistance of counsel for appellant’s first petition under the PCRA.

As appellant correctly notes, a petitioner under the PCRA is entitled to

assistance of counsel throughout the entire appellate process of a first

petition under the PCRA. Commonwealth v. Robinson, 970 A.2d 455, 457

(Pa.Super. 2009) (en banc), citing Pa.R.Crim.P. 904(c) (citations omitted).

We have also held that a petitioner is entitled to effective assistance of

counsel for his or her first PCRA petition. Commonwealth v. Perez, 799

A.2d 848, 852 (Pa.Super. 2002) (citation omitted).

      In the instant appeal, appellant avers that Attorney Marinaro, “failed to

identify, investigate and present all available and appropriate claims for

relief, including issues involving prior counsels’ ineffectiveness.” (Appellant’s



                                     - 39 -
J. S35002/16


brief at 116.)     In order to successfully claim ineffective assistance of

counsel, a petitioner must prove by a preponderance of the evidence that he

or she suffered prejudice as a result of counsel’s act or omission.       See

Strickland, 466 U.S. at 687; Pierce, 527 A.2d at 975. Here, despite the

unusually long passage of time, this is an appeal of appellant’s first petition

filed pursuant to the PCRA. As a result, appellant cannot prove that he was

prejudiced in any way by Attorney Marinaro’s alleged ineffectiveness.14

Indeed, the PCRA court reinstated appellant’s appeal rights as they related

to his original PCRA petition nunc pro tunc on May 27, 2003. Following this

court’s remand for an evidentiary hearing, appellant filed three supplemental

amendments to his original petition for PCRA relief--on December 5, 2003,

August 20, 2012, and December 16, 2013. (PCRA court opinion, 4/30/15 at

4-5.)   Appellant, therefore, had numerous opportunities to correct any

perceived error in his PCRA petition that was a result of any alleged

ineffective assistance by Attorney Marinaro.    Accordingly, appellant cannot

prove by a preponderance of the evidence that he suffered any prejudice as

a result of Attorney Marinaro’s alleged ineffectiveness, and therefore, his

claim must fail.




14
   The Defender Association of Philadelphia currently represents appellant,
having been appointed to do so on October 16, 2000. (See PCRA court
opinion, 4/30/15 at 3.)


                                    - 40 -
J. S35002/16


                                          VIII.

       Under appellant’s eighth and final issue, he avers that he is entitled to

a resentencing hearing in light of the United States Supreme Court’s decision

in Miller v. Alabama,            U.S.     , 132 S.Ct. 2455 (2012), which held that

it is unconstitutional to sentence individuals who were under 18 years of age

at the time of their offense to a mandatory minimum sentence of life

imprisonment without the possibility of parole. In response to Miller, our

supreme court held in Commonwealth v. Cunningham, 81 A.3d 1 (Pa.

2013), that Miller did not apply retroactively to persons on collateral review.

In   light   of   the   United   States    Supreme    Court’s   recent   decision   in

Montgomery v. Louisiana,                U.S.       136 S.Ct. 718 (2016), however,

Cunningham’s tenet that Miller cannot be applied retroactively is no longer

good law in Pennsylvania. See Commonwealth v. Secreti,                     A.3d      ,

2016 WL 513341 (Pa.Super. 2016) (interpreting Montgomery as making

retroactivity under Miller effective as of the date of the Miller decision).

       Here, the trial court sentenced appellant, who was 17 years old at the

time of the offense, to a mandatory sentence of life imprisonment without

the possibility of parole.       In light of the Supreme Court’s recognition in

Miller that such a sentence violates the Eighth Amendment’s prohibition

against cruel and unusual punishment, and the Court’s recent retroactive

application of Miller in Montgomery, we vacate the judgment of sentence

and remand for resentencing.



                                          - 41 -
J. S35002/16


      Order affirmed in part, reversed in part.   Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2016




                                    - 42 -
