J-S25035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER FREEMAN                        :
                                               :
                       Appellant               :   No. 1660 WDA 2017

                 Appeal from the PCRA Order October 18, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015155-2010


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 29, 2018

       Christopher Freeman appeals pro se from the order entered October 18,

2017, dismissing his first petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 On appeal, Freeman contends the PCRA court

erred in dismissing his petition without first conducting an evidentiary hearing

on his claims concerning trial counsel’s ineffectiveness and the legality of his

sentence. We affirm.

       The facts underlying Freeman’s arrest and conviction were summarized

in the prior decision of this Court affirming Freeman’s judgment of sentence

on direct appeal:

             During the late evening on July 6, 2010, Freeman went over
       to the house of a friend, James Lyle, to hang out on the porch,
       play video games, and smoke marijuana. Lyle’s home is located
       at 3124 Sacramento Avenue, Pittsburgh, Pennsylvania in the
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S25035-18


     Sheraden section of the city.     The victim, Ben Lewis, was
     neighbors with Lyle, and his house was located at 3126
     Sacramento Avenue. He apparently approached the two men,
     mumbled something, and Freeman asked the victim to repeat
     what he had said. Lyle heard the victim say “you” and “nigger.”
     Freeman became visibly upset and the victim retreated to his
     house. Freeman then left Lyle’s home.

           Several hours later, Lyle was in his dining room, at his
     computer, when he noticed motion-sensor lights go on at the
     victim’s house. He heard three loud bangs and looked out the
     window. Lyle observed three men in dark clothing, including
     Freeman, standing outside the victim’s home. Freeman, who had
     a shirt covering the lower half of his face,3 told Lyle, “You didn’t
     see anything.” He then pulled a gun from his waistband, and
     pointed it at Lyle. Lyle closed his blinds and went back into his
     dining room. Lyle then heard the sound of both of the victim’s
     vehicles, a red Chevy pickup truck and a blue Pontiac Sunbird,
     drive off.4
        3 Lyle testified he recognized Freeman based on his hair,
        height, eyes, voice, and because he had on the same clothes
        as earlier in the evening.
        4   Two other witnesses, Joyce Maust and Iesha Griffin,
        testified that they lived on the same street as the victim and
        Lyle, and they saw both of the victim’s cars driving off down
        the street. Griffin also stated that she saw two people in
        the Pontiac and one person in the truck.

           The next morning, Lyle went to the victim’s home and saw
     that the front door had been damaged and the air conditioning
     unit was hanging out the window. He opened the door slightly
     and observed the victim on the ground. He called out the victim’s
     name, heard no response, and went back to his house to call 911.

           Detective Christine Williams of the City of Pittsburgh Police
     Department responded to the scene and found the victim dead,
     as a result of two gunshot wounds to the shoulder and chest. The
     victim also suffered from blunt force trauma to his scalp, at the
     top and back of his head. Detective Williams indicated the interior
     of the residence looked like it had been ransacked, with furniture
     overturned, the doorjamb pulled away from the frame of the door,
     and a large sliding window hanging out the window frame.
     Detective Williams also found three live bullet casings, and two


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J-S25035-18


     spent bullet casings in the same room. Police officers issued a “be
     on the lookout” report for the victim’s two vehicles.

            That same day, Detective John Lewis was taking part in an
     unrelated narcotics investigation near the entrance to Sheraden
     Park when he observed two men standing near to a red pickup
     truck talking to a third man, who was behind the wheel of a blue
     Pontiac. Detective Lewis identified Freeman and Christopher
     Hunter as the two men standing outside the truck and the driver
     of the Pontiac as Marshineak Manning. The detective saw Manning
     stop the car and talk to the two other men for a couple of minutes
     before driving off. Freeman was taken into custody as part of that
     unrelated investigation. He was searched incident to arrest and a
     set of keys was seized. The car and the truck were found and
     subsequently determined to be the victim’s missing vehicles. The
     keys found on Freeman fit in the lock and ignition for the red truck.

           When the officers investigating the victim’s murder learned
     that Freeman had been arrested near the victim’s truck, they
     asked to speak with him on July 8, 2010. He agreed to speak
     without a lawyer and signed a Police Interrogation Warning Form.
     During the interrogation, Freeman maintained he did not know the
     victim, nor was he familiar with the street where the victim lived.
     When asked about the truck, Freeman said he was never with a
     red truck and did not know anything about a red truck. He denied
     talking to anyone inside a blue Pontiac or ever being in Sheraden
     Park. The investigating detective, James McGee, then asked
     Freeman, “‘Well, if you didn’t have anything to do with the red
     pickup truck, why did you have the keys that belonged to the red
     pickup truck?’”    Freeman said he had found those keys in
     Sheraden Park. When confronted with the fact that he had just
     said that he had never been in the park, Freeman responded,
     “Well, I mean over by the high school.” After questioning,
     Freeman was not arrested for the murder.

           Also during this time, Lyle did not tell the police about the
     events that transpired the night before because he was “scared.”
     Shortly after the incident, Lyle said that a man approached him
     and threatened him not to tell police what he knew about the
     murder. The man also told Lyle that he had to send money to
     post Freeman’s bond for his arrest on the other charges and to
     put money in Freeman’s “book.” Lyle paid the bond, but the
     threats and demands for money continued. In mid-October 2010,
     tired of the threats and demand for payments, Lyle went to the
     police, telling them what he knew about Freeman and the night in

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      question. Lyle also identified Manning as the individual that
      threatened him and forced him to send money to Freeman.

            Based on this evidence, Freeman was arrested for Lewis’s
      murder on October 15, 2010. Although Freeman verbally agreed
      to waive his Miranda5 rights, he refused to sign the Police
      Interrogation Warning Form, stating he was not comfortable
      signing the form. With respect to the night in question, Freeman
      again denied any knowledge of the victim, the street where the
      victim lived, Lyle, and even Manning.
         5   Miranda v. Arizona, 384 U.S. 436 (1966).

           Freeman’s first jury trial was held on March 6, 2011 to
      March 13, 2011, but ended in a mistrial.6 His second jury trial
      began on October 23, 2012. . . .
         6 The court determined a juror had conducted inappropriate
         internet research related to the case. See N.T., 3/6/2011–
         3/13/2011, at 491–492.

             Before cross-examination of Lyle began, the jury was
      removed. Defense counsel sought permission to cross-exam[ine]
      Lyle about a 2008 conviction for aggravated assault and
      solicitation to commit assault, rape and murder. . . .

           The [trial] court . . . concluded that pursuant to [Pa.R.E.]
      609 Lyle’s prior convictions were inadmissible[.]

Commonwealth v. Freeman, 125 A.3d 466 (unpublished memorandum) at

2-6, 22-23 (Pa. Super. 2015) (citations to the record omitted; some

formatting).

      At the beginning of the final jury charge, the trial court instructed the

jury: “You should consider these instructions as a whole. You may not pick

out one instruction and disregard the others.” N.T., 10/24/2012, at 310. The

trial court orally instructed the jury on fundamental legal principles, including

explanations of the presumption of innocence, reasonable doubt, burden of

proof, direct and circumstantial evidence, differences between expert and lay


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witnesses’ testimony, witness credibility incorporating voluntariness of

statements and how to consider conflicts and discrepancies in testimony, and

conspirator and accomplice liability. See id. at 310-325. The trial court then

verbally instructed the jury on the elements of the offenses and any lesser

included offenses. See id. at 326-342.2

       According to the notes of testimony for the next day: “At approximately

12:43 p.m., a jury question was handled off the record”; and “At

approximately 3:01 p.m., a [second] jury question was handled off the

record.”    N.T., 10/25/2012, at 349.          Pursuant to the representations of

Freeman’s trial counsel in a subsequent filing, the following events occurred:

       3. . . . [T]he [trial c]ourt advised counsel for the parties that it
       had received a request from the jury for a written copy of the
       instructions received verbally from the [c]ourt the day before. The
       [c]ourt further advised counsel it intended to honor the request.

       4.    Defense counsel presented his position that such action
       would be contrary to the Rules of Criminal Procedure and counsel
       for the Commonwealth agreed. The [trial c]ourt directed counsel
       to reach an agreement as to the proper response to the jury’s
       request.

       5.   Despite good faith efforts, counsel was unable to reach an
       agreement.

       6.    The [trial c]ourt summoned counsel into chambers, heard
       the respective positions of the parties, then announced a portion
       of the verbal instructions . . . would be given to the jury and that
       the jury would not be given the additional cautionary instructions
       counsel had urged the Rules required.



____________________________________________


2 Freeman did not present any defenses, and the trial court thus did not need
to instruct on any.

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       7.    All of the above pleaded activity occurred outside of the
       record.

       8.   The [trial c]ourt did not afford counsel for the defendant the
       opportunity to place his objections on the record.

Req. for Evidentiary Hr’g, 1/23/2013, at ¶¶ 3-8.3

       On October 25, 2012, a jury found Freeman guilty of murder of the

second degree, robbery of motor vehicle, burglary, and conspiracy to commit




____________________________________________


3  The Commonwealth has neither confirmed nor challenged the veracity of
Freeman’s trial counsel’s account. See Commonwealth’s Resp. to Def.’s Post
Sentence Mot., 3/12/2013; Commonwealth’s Brief at 3-4, 22-28.

In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court stated that no
“transcript of the supposed written instruction” exists and that it “is at a loss
to really address the topic.” Trial Court Opinion, 7/28/2014, at 3.

Freeman’s post-sentence motion stated: “The written portion given to the
jury is attached to this motion as ‘Exhibit A.’” Post-Sentence Mot., 1/14/2013,
at ¶ 2. However, this attachment is not a transcript of the oral instructions
nor an exhibit entered into the certified record; its origin therefore remains
unclear. Although we have no reason to doubt that it is an accurate
representation of the written instructions given to the jury, we likewise do not
understand why the trial court would then assert that there was no record of
the written instructions.

We thus do not have an authoritative copy of the written instructions given to
the jury. “Omissions like these significantly impair our ability to consider an
appeal. They are a violation of our rules[.]” Erie Ins. Exch. v. Moore, 175
A.3d 999, 1006 (Pa. Super. 2017), appeal granted on other grounds, No. 87
WAL 2018 (Pa. July 10, 2018), citing Smith v. Twp. of Richmond, 82 A.3d
407, 417 n.9 (Pa. 2013) (lamenting similar issue in case before Supreme
Court). “All involved in the appellate process have a duty to take steps
necessary to assure that the appellate court has a complete record on appeal,
so that the appellate court has the materials necessary to review the issues
raised on appeal.” Pa.R.A.P. 1921, Note.




                                           -6-
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burglary.4 On January 9, 2013, Freeman was sentenced to life imprisonment5

and was ordered to pay “all applicable fees and costs[.]” Order of Sentence,

1/9/2013.

       “Freeman      filed    a   post-sentence   motion,   challenging   the   jury

instructions,” Freeman, 125 A.3d 466 (unpublished memorandum) at 7,

specifically contending that the trial court erred in providing “portions of the

oral charge not permitted by Rule 646(B)” and by failing “to instruct the jury

that the entire charge, written and oral were to be given equal weight and

that the jury could submit questions regarding any portion of the charge as

was required by Rule 646[(B)](2).”             Post-Sentence Mot., 1/14/2013, at

¶¶ 3, 5. Trial counsel then filed a request for evidentiary hearing. See Req.

for Evidentiary Hr’g, 1/23/2013. The Commonwealth filed a response to the

post-sentence motion but did not address the averments in the request for

evidentiary hearing.         No evidentiary hearing was granted, and the post-

sentence motion was denied on April 23, 2013.

       On May 23, 2013, Freeman filed a direct appeal.             In his concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

Freeman challenged the trial court’s denial of his post-sentence motion:



____________________________________________


4   18 Pa.C.S.A. §§ 2502(b), 3720(a), 3502(c)(1), and 903, respectively.
5  Freeman was sentenced to life imprisonment for murder, five years of
incarceration for robbery, and two years of incarceration for burglary, all to
be served concurrently. He received no further penalty for conspiracy.


                                           -7-
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      I.    The trial court abused its discretion in denying
      Mr. Freeman’s Post-Sentence Motion, which claimed the [c]ourt
      violated Pennsylvania Rule of Criminal Procedure 646 by allowing
      the jury to have a written portion of the jury charges. During jury
      deliberations, the [c]ourt notified counsel that the jury requested
      a written copy of the jury instructions. After a conference in
      chambers1, the [c]ourt honored the request despite defense
      counsel’s objection that the decision was contrary to what is
      allowable under Pa.R.Crim.P. 646(B). Specifically, the written
      portion of the charges given to the jury contained more than “the
      elements of the offenses, lesser included offenses, and any
      defense upon which the jury has been instructed.” Additionally,
      the [c]ourt violated Pa.R.Crim.P. 646[(B)](2) by failing to instruct
      the jury that the entire charge, written and oral, shall be given
      equal weight and that the jury could submit questions regarding
      any portion of the charge. Thus, the [c]ourt abused its discretion
      in denying the post-sentence motion and Mr. Freeman should be
      granted a new trial.
         1 During this in-chambers discussion, the [trial c]ourt did
         not afford defense counsel the opportunity to place his
         objections on the record. Thus, defense counsel raised
         these objections on the record at the first opportunity: in a
         Post-Sentence Motion.

      II.    In the alternative, the trial court abused its discretion in
      denying trial counsel’s request for an evidentiary hearing. Such a
      hearing would have allowed defense counsel to develop, on the
      record, his objections to the [c]ourt permitting the jury to have a
      written portion of the jury charge as well as the [c]ourt’s failure
      to instruct the jury in accordance with Pa.[R.]Crim.P. 646[(B)](2).
      As the [c]ourt did not allow defense counsel the opportunity to
      preserve his objections on the record at the time the issue arose
      in chambers, an evidentiary hearing was necessary.

Rule 1925(b) Concise Statement of Errors Complained of on Appeal,

4/30/2014, at ¶ 23(I)-(II). Freeman’s concise statement also challenged the

trial court’s denial of his counsel’s request to cross-examine Lyle about, inter

alia, his prior conviction for solicitation. See id. at ¶ 23(IV). Nevertheless,




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Freeman’s claim regarding a violation of Pa.R.Crim.P. 646 was not advanced

on direct appeal to this Court.

       This Court affirmed the judgment of sentence on July 30, 2015.

Freeman did not petition the Supreme Court of Pennsylvania for allowance of

appeal.

       On December 4, 2015, Freeman timely filed a pro se PCRA petition.

Counsel appointed for Freeman filed an amended petition on July 8, 2016. On

January 18, 2017, after a Grazier hearing,6 the PCRA court granted

Freeman’s request to represent himself and ordered a second amended PCRA

petition to be filed by March 23, 2017.          Freeman filed his pro se second

amended PCRA petition on March 14, 2017.7 That petition propounded that

trial counsel was ineffective for failing to cross-examine Lyle with regard to

his prior criminal solicitation conviction and failing to object in a timely manner

to the use of written jury instructions or to request that the trial court instruct

the jury in the proper use of jury instructions.         See Am. Pet. for Post-

Conviction Relief, 3/14/2017, at 5, 18.           The petition also averred that


____________________________________________


6   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
7  The certificate of service accompanying Freeman’s second amended PCRA
petition was dated March 14, 2017. The second amended PCRA petition was
received and filed by the Allegheny County Department of Court Records on
April 10, 2017. Pursuant to the “prisoner mailbox rule,” we will consider
Freeman’s current PCRA petition filed as of March 14, 2017. Commonwealth
v. Whitehawk, 146 A.3d 266, 268 n.3 (Pa. Super. 2016) (“under the
‘prisoner mailbox rule’ a document is deemed filed when placed in the hands
of prison authorities for mailing”).

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Freeman’s life sentence was illegal, because “it lacked statutory authorization,

thereby violating the petitioner’s due process rights.” Id. at 22.

       On June 12, 2017, Freeman filed another pro se amended PCRA petition

adding a fourth claim that trial counsel was ineffective for preventing Freeman

from testifying in his own defense. See Am. Pet. for Post-Conviction Relief

Req. for Additional Issue, 6/12/2017, at 2.

       On July 11, 2017, the PCRA court entered notice of its intent to dismiss

Freeman’s PCRA petition pursuant to Pa.R.Crim.P. 907. On October 18, 2017,

Freeman’s PCRA petition was dismissed by the PCRA court.             This appeal

followed.8

       Freeman now raises the following issues for our review:

       I.     Whether the PCRA court abused its discretion by summarily
       dismissing the petition without an evidentiary hearing to
       determine whether trial counsel was ineffective for giving
       unreasonable advice resulting in [Freeman] waiving his right to
       testify?

       [II.] Whether the PCRA court abused its discretion for failing to
       grant an evidentiary hearing to determine whether the trial court
       lawfully imposed an order authorizing the collection [of] costs of
       prosecution?

       [III.] Whether the PCRA court abused its discretion for failing to
       grant an evidentiary hearing to determine whether trial counsel[
       was] ineffective for failing to adequately address the court and
       request that he be allowed to introduce the prosecutor[’s] sole
       witness James Lyle’s prior convictions of criminal solicitation to

____________________________________________


8 On November 14, 2017, the PCRA court ordered Freeman to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Freeman complied on November 16, 2017. The PCRA court issued a
responsive opinion on December 7, 2017.

                                          - 10 -
J-S25035-18


      rape and murder his own mother to prove biasness and motive of
      the witness testimony?

      [IV.] Whether the PCRA court abused its discretion for failing to
      grant an evidentiary hearing to determine whether trial counsel
      was ineffective for failing to “timely” lodge an objection, or request
      to the trial court to instruct the jurors on the use of written
      instructions prior to them receiving these instructions as required
      by Pa.R.Crim.P. 646(B)?

      [V.] Whether the PCRA court’s dismissal resulted in committing
      a prejudicial error for failing to determine whether the trial court
      lacked statutory authorization when it imposed an illegal sentence
      of life without parole upon [Freeman] pursuant to 18 Pa.C.S.A.
      [§] 2502(b)?

Freeman’s Brief at 4 (issues re-ordered to facilitate disposition).

      In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

the PCRA court and whether the ruling is free of legal error.” Commonwealth

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).

      Freeman’s first issue raised on appeal, alleging that his trial counsel was

ineffective for giving him “unreasonable advice” that averted him from

testifying on his own behalf, Freeman’s Brief at 26, was not included in his pro

se second amended PCRA petition of March 14, 2017. “Issues not raised in

the lower court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a). Although, in June 2017, without seeking the PCRA court’s

leave, Freeman filed a third amended PCRA petition that included this first

issue about waiver of his right to testify on his own behalf, Am. Pet. for Post-

Conviction Relief Req. for Additional Issue, 6/12/2017, at 2, we cannot

consider any arguments raised therein, because Freeman did not receive –


                                     - 11 -
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nor even seek – the PCRA court’s permission to file a third amended petition.9

A PCRA petitioner may not raise new claims by merely supplementing a

pending PCRA petition without court authorization; failure to obtain leave of

the PCRA court waives such claims. See Commonwealth v. Mason, 130

A.3d 601, 627 (Pa. 2015).          Thus, Freeman’s third amended PCRA petition

failed to preserve his argument as to his trial counsel’s ineffectiveness for

advising him not to testify. Accordingly, Freeman’s first challenge raised on

appeal is waived.

       His second issue, challenging the order requiring him to pay the costs

of prosecution, id. at 61, was not raised in his second or third amended PCRA

petitions of March 2017 and June 2017, respectively. Therefore, Freeman has

also failed to preserve this argument by not including it in the amended PCRA

petition ordered by the PCRA court.10 See Pa.R.A.P. 302(a).
____________________________________________


9 Freeman’s third amended PCRA petition was also filed after the due date
ordered by the PCRA court for him to file a pro se amended PCRA petition.
Order, 1/18/2017.

Furthermore, even if we consider Freeman’s filing on June 12, 2017, to be a
request to add another issue to his amended PCRA petition and not as another
amended PCRA petition itself, his request was still never granted by the PCRA
court, and this failure to obtain leave of the PCRA court waives this additional
claim. See Mason, 130 A.3d at 627.
10 Even though payment of the costs of prosecution was part of Freeman’s
sentence and challenges to the legality of a sentence can be raised at any
time, such claims must still be included in a PCRA petition in order to be
preserved. Commonwealth v. Ousley, 21 A.3d 1238, 1245 (Pa. Super.
2011) (claim that counsel was ineffective for failing to present legality of
sentencing claim was presented for the first time on appeal and therefore had



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       Freeman’s next two claims contend that his trial counsel was ineffective.

See Freeman’s Brief at 34-36, 41-48. With regard to PCRA claims alleging

ineffective assistance of counsel, this Court has held:

       Counsel is presumed to have been effective. To overcome this
       presumption, a PCRA petitioner must plead and prove that:
       (1) the underlying legal claim is of arguable merit; (2) counsel’s
       action or inaction lacked any objectively reasonable basis
       designed to effectuate his client’s interest; and (3) prejudice, to
       the effect that there was a reasonable probability of a different
       outcome if not for counsel’s error.

Andrews, 158 A.3d at 1263 (quotation marks and citation omitted).              “A

failure to satisfy any of the three prongs of [this] test requires rejection of a

claim of ineffective assistance of trial counsel[.]” Commonwealth v. Chmiel,

30 A.3d 1111, 1128 (Pa. 2011).

       Furthermore, “[a]n evidentiary hearing is not mandatory for all claims

raised in a PCRA petition.” Commonwealth v. Clark, 961 A.2d 80, 94 (Pa.

2008). “Counsel will not be deemed ineffective for failing to raise a meritless

claim. By extension, the PCRA court did not err in denying the claim without

a hearing.”     Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012)

(internal citation omitted).

       Freeman argues that the PCRA court abused its discretion by not

granting an evidentiary hearing to determine whether trial counsel was

ineffective for “failing to adequately address” the trial court about using Lyle’s

____________________________________________


been waived), citing Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa.
2009).


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prior conviction for solicitation during counsel’s cross-examination of Lyle.

Freeman’s Brief at 34. The record demonstrates that trial counsel did seek

permission from the trial court to cross-examine Lyle about this conviction,

but the trial court denied the request.         See Freeman, 125 A.3d 466

(unpublished memorandum) at 22-23. Additionally, Freeman challenged the

court’s denial of this request on direct appeal, and this Court found his

arguments to be meritless and affirmed the decision of the trial court.

Consequently, trial counsel cannot be deemed ineffective, and the PCRA court

did not err in denying a hearing on a claim that has already been deemed

meritless. See Sneed, 45 A.3d at 1115.

      As for Freeman’s proposal that trial counsel should have argued that

evidence of Lyle’s prior conviction should have been introduced “for purposes

of establishing a motive, rather than for pursuing to introduce prior convictions

for no apparent reason,” Freeman’s Brief at 36, Freeman never articulates

what that alleged motive was. He merely baldly asserts that “Lyle had an[]

ulterior motive for implicating [Freeman] in [Lewis’s] death.” Id. at 41. This

undeveloped accusation cannot establish a meritorious claim, trial counsel

cannot be considered ineffective for failing to raise it, and, again, the PCRA

court did not err in refusing to hold an evidentiary hearing on this issue. See

Andrews, 158 A.3d at 1263; Sneed, 45 A.3d at 1115.

      Freeman’s next contention is that trial counsel was ineffective for “failing

to ‘timely’ lodge an objection, or request to the trial court to instruct the jurors




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on the use of written instructions prior to them receiving these instructions as

required by Pa.R.Crim.[P.] 646(B)[.]” Freeman’s Brief at 42. He continues:

      More[o]ver, the PCRA [c]ourt and Commonwealth erroneously
      concluded that such issue was meritless and underserving of an
      evidentiary hearing. . . . However, [Freeman] intends to prove
      and address three significant factors within this argument[:]
      (1) The fact that the trial court violated Rule 646(B)[, which] was
      untimely contested by trial counsel which resulted in his
      ineffectiveness;[ (2) ]That the PCRA [c]ourt’s conclusion
      insinuating that Rule 646(B) . . . was[ not] violated is completely
      erroneous and uncorrob[o]rated by the record[;] and[ ](3) That
      such issue is deserving of an evidentiary hearing to make a
      determination as to why trial counsel . . . failed to st[r]ategically
      lodge a timely objection to challenge the trial court’s violation of
      Rule 646(B) and to determine whether such lack of action resulted
      in . . . prejudice[e] to the appellant. . . .

      [I]nstead of providing the jurors with the Judge’s oral charge in
      “...its entirety[]” as required that consisted of 31 pages of
      instructions[, N.T., 10/24/2012, at] 310-342[,] the trial court
      dec[ei]tfully excluded 15 pages of the Judge’s oral instructions[.
      Id. at] 310-325[.]
      ...

      [T]he trial court failed to “...instruct the jury about the use of
      written charge . . . that the entire charge, written and oral, shall
      be given equal weight...”

Id. at 42-45.

      Pa.R.Crim.P. 646(B) states:

      The trial judge may permit the members of the jury to have for
      use during deliberations written copies of the portion of the
      judge’s charge on the elements of the offenses, lesser
      included offenses, and any defense upon which the jury has
      been instructed.

         (1) If the judge permits the jury to have written copies of
         the portion of the judge’s charge on the elements of the
         offenses, lesser included offenses, and any defense upon
         which the jury has been instructed, the judge shall provide
         that portion of the charge in its entirety.

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          (2) The judge shall instruct the jury about the use of the
          written charge. At a minimum, the judge shall instruct the
          jurors that

              (a) the entire charge, written and oral, shall be given
              equal weight; and

              (b) the jury may submit questions regarding any
              portion of the charge.

Pa.R.Crim.P. 646(B) (emphasis added).

       Contrary to Freeman’s assertion, Pa.R.Crim.P. 646(B) does not require

that, if any written instructions are given to the jury, the entirety of the oral

instructions be given to the jury in written form. Instead, it mandates that, if

any written instructions are distributed to the jury, the written instructions

must include the elements of the offenses in their entirety, any lesser included

offenses in their entirety, and any instructed defenses in their entirety.

       Here, Freeman insists that the jury should have been given written

instructions equal to the entirety of the oral jury charge, as reproduced on

pages 310 to 342 of the notes of testimony from his jury trial. Freeman’s

Brief at 45 (citing N.T., 10/24/2012, at 310-342). He argues that the written

instructions given to the jury instead only covered the content from the oral

jury instructions that was transcribed on pages 326 to 342 of the notes of

testimony. Id. (citing N.T., 10/24/2012, at 310-342, excluding 310-325).11

Nonetheless, pages 326 to 342 contain all of the materials required by


____________________________________________


11  All of the content of Exhibit “A” to the post-sentence motion is also
contained within pages 326 to 342 of the jury trial notes of testimony.
Compare Post-Sentence Mot., 1/14/2013, with N.T., 10/24/2012, at 326-
342.

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Pa.R.Crim.P. 646(B) – i.e., the elements of the offenses and the lesser

included offenses, as Freeman did not raise any defenses.                See N.T.,

10/24/2012, at 326-342.         Accordingly, the content of the written jury

instructions adhered to the requirements of Pa.R.Crim.P. 646(B), and

Freeman’s   first   challenge   to   the   written   instructions   is   meritless.

Consequently, trial counsel cannot be found ineffective for failing immediately

to raise this meritless claim on the record, and the PCRA court did not err in

denying an evidentiary hearing on this claim. Sneed, 45 A.3d at 1115.

      Freeman also challenges the trial court’s failure to instruct the jury that

written and oral instructions must be given equal weight. Freeman’s Brief at

45.   The Commonwealth proposes that the following instruction was “very

similar to the instruction to which [Freeman] claims he was entitled under

Rule 646(B)(2)(a),” Commonwealth’s Brief at 28: “You should consider these

instructions as a whole. You may not pick out one instruction and disregard

the others.” N.T., 10/24/2012, at 310. The Commonwealth continues that,

based upon this instruction, the jury should have treated the oral and written

instructions equally, as “the jury is presumed to follow the trial court’s

instructions.” Commonwealth’s Brief at 28, citing Commonwealth v. Cash,

137 A.3d 1262, 1280 (Pa. 2016).

      However, this instruction was given at the commencement of the charge

during the previous day, before written instructions were even contemplated.

N.T., 10/24/2012, at 310.       At no point did the trial court unambiguously

“instruct the jurors that the entire charge, written and oral, shall be given

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equal weight[,]” as required by Pa.R.Crim.P. 646(B)(2)(a).12         Freeman is

correct that, prior to providing written instructions to the jury, the trial court

should have instructed the jury pursuant to Pa.R.Crim. 646(B)(2)(a) but failed

to do so, and his trial counsel should have been permitted to place an objection

to this impropriety on the record immediately. See Freeman’s Brief at 42, 45.

       However, after raising this claim in a post-sentence motion and Rule

1925(b) concise statement, counsel abandoned this issue in the appellate brief

before this Court on direct appeal. Freeman does not challenge trial counsel’s

decision not to pursue this issue on direct appeal. See Freeman’s Brief at 42-

53. Accordingly, it is waived. See 42 Pa.C.S. § 9543(a)(3) (to be eligible for

PCRA relief a petition must plead and prove “[t]hat the allegation of error has

not been … waived”).

       Even if Freeman’s underlying legal claim pursuant to Pa.R.Crim.P.

646(B)(2)(a) is of arguable merit, he still fails to establish how trial counsel’s

failure to object to the lack of a Pa.R.Crim.P. 646(B)(2)(a) instruction on the

record in a timely manner prejudiced the outcome of his trial. See Andrews,

158 A.3d at 1263.         In his brief to this Court, Freeman relies upon an

unpublished memorandum decision, Commonwealth v. Hernandez, 175

A.3d 1104 (Pa. Super. 2017) (unpublished memorandum), to support his
____________________________________________


12 Freeman does not raise any issues pursuant to Pa.R.Crim.P. 646(B)(2)(b),
see Freeman’s Brief at 42-53, although, based upon our review of the notes
of testimony, there is no place in the record where the trial court instructed
the jury that it “may submit questions regarding any portion of the charge[,]”
including prior to giving the written instructions to the jury. See N.T.,
10/24/2012, at 310-347; N.T., 10/25/2012, at 349.

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allegation of prejudice. Freeman’s Brief at 47-48. Pursuant to this Court’s

internal operating procedure 65.37(A):

      An unpublished memorandum decision shall not be relied upon or
      cited by a Court or a party in any other action or proceeding,
      except that such a memorandum decision may be relied upon or
      cited (1) when it is relevant under the doctrine of law of the case,
      res judicata, or collateral estoppel, and (2) when the
      memorandum is relevant to a criminal action or proceeding
      because it recites issues raised and reasons for a decision affecting
      the same defendant in a prior action or proceeding.

As none of the exceptions apply to Freeman, he should not have relied upon

Hernandez, and we shall not consider it.

      Assuming arguendo that we could rely upon Hernandez, that case

concerned a trial court’s failure to include the “defense[s] upon which the jury

has been instructed” with written instructions, as required by Pa.R.Crim.P.

646(B)(1), which is not the allegation in the current appeal.         Compare

Hernandez, 175 A.3d 1104 (unpublished memorandum) at 3, 5, 7-8 with

Freeman’s Brief at 42-45.

      Accordingly, Freeman has failed to establish that “there was a

reasonable probability of a different outcome” if trial counsel had immediately

objected to the trial court’s failure to instruct the jury on the written jury

instructions pursuant to Pa.R.Crim.P. 646(B)(2)(a), and, thus, he has not

proven prejudice. Andrews, 158 A.3d at 1263. By failing to establish any

one prong of the ineffective assistance of counsel test, Freeman’s entire claim

that trial counsel was ineffective for not immediately objecting to the trial




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court’s failure to instruct the jury on the written jury instructions fails. See

Chmiel, 30 A.3d at 1128.

      Finally, Freeman argues that his sentence is illegal, because there is no

statutory authority for imposing a life sentence for murder of the second

degree. Freeman’s Brief at 53. However, 18 Pa.C.S.A. § 1102(b) states: “a

person who has been convicted of murder of the second degree . . . shall be

sentenced to a term of life imprisonment.” Consequently, statutory authority

exists for Freeman’s life sentence, and this claim is meritless.

      Hence, all of the challenges raised by Freeman on appeal merit no relief.

We thereby affirm the order of the PCRA court.

      Order affirmed

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2018




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