J-A27043-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
WILLIAM ROGERS,                            :
                                           :
                    Appellant              :     No. 3149 EDA 2018

                   Appeal from the Order Dated September 26, 2018
                 in the Court of Common Pleas of Philadelphia County
                 Criminal Division at No(s): CP-51-CR-0007426-2012

BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 28, 2020

        William Rogers (Appellant) appeals from the September 26, 2018

order dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

        By way of background, Appellant fatally shot Mark Aursby in a dispute

over a bicycle on March 14, 2012. In June 2012, Appellant turned himself

in1 and provided a statement to police claiming that he shot Aursby in self-

defense because he “thought that [Aursby] was going to reach for a gun.”

Appellant’s Statement to Police, 6/4/2012, at 4 (unnumbered).          As such,

Appellant’s trial counsel (trial counsel) prepared for trial on a theory of self-

defense. Thereafter, Appellant’s mother (Mother) notified trial counsel that

Appellant had an alibi: he was at a party at his great-aunt Marlena Parker’s


1   Appellant’s uncle, Michael Burke, was with him when he turned himself in.



* Retired Senior Judge assigned to the Superior Court.
J-A27043-19

house at the time of the shooting.     Trial counsel consulted with Appellant

about this change in defense strategy and he had his investigator, Karim

Shabazz, investigate the purported alibi. Trial counsel filed a notice of alibi

listing Marlena,2 Mother, Michael, and Appellant’s sister, Jasmine Rogers, as

alibi witnesses.   Notice of Alibi, 9/5/2013.   Trial counsel additionally listed

Shirley Lackey3 in the notices of alibi as an individual who saw the shooting

and would testify that Appellant was not the shooter.       Id., Amended Alibi

Notice, 9/18/2013.

      On September 23-27, 2017, Appellant proceeded to a jury trial. Trial

counsel subpoenaed the alibi witnesses for trial and introduced his alibi

defense strategy in his opening statement. The Commonwealth called, inter

alia, Nyteisha Sanders and siblings Zahir Wiggins and Shanae Talley as

eyewitnesses. All three had provided statements to police shortly after the

shooting identifying Appellant as the shooter.      Because they recanted to

various degrees in their trial testimony, these statements were introduced as

substantive evidence. Enrico Crispo also testified as an eyewitness but was

unable to identify the shooter.

      Mid-trial, when trial counsel went to speak with the alibi witnesses

before calling them to the witness stand, he learned that they either could


2This Court will refer to lay witnesses by their first names to avoid confusion
because some witnesses share the same last name.
3 It was clarified at the PCRA hearing that Shirley’s name was actually
Yvonne.

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not testify as to Appellant’s whereabouts at the time of the shooting or

refused to come in to testify. Accordingly, after consultation with Appellant,

trial counsel shifted gears back to the self-defense strategy. Appellant chose

not to testify at trial, so trial counsel called Michael to testify about

Appellant’s statement to police.     In his closing argument, trial counsel

focused on establishing reasonable doubt in the Commonwealth’s case by,

inter alia, arguing that Appellant’s statement was coerced, highlighting the

eyewitnesses’ inconsistencies, and calling attention to the fact that two

different types of shell casings were found at the scene.

      On September 27, 2013, the jury found Appellant guilty of first-degree

murder, carrying a firearm without a license, and possession of an

instrument of crime (PIC). Appellant was sentenced to life imprisonment for

first-degree murder, with concurrent terms of three to six years of

incarceration for carrying a firearm without a license and two to five years of

incarceration for PIC.

      This Court affirmed Appellant’s judgment of sentence on direct appeal,

and our Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Rogers, 122 A.3d 1140 (Pa. Super. 2015) (unpublished

memorandum), appeal denied, 128 A.3d 220 (Pa. 2015).

      On November 9, 2016, Appellant pro se timely filed the instant PCRA

petition. The PCRA court appointed Attorney David Rudenstein, who filed an

amended PCRA petition on April 7, 2017. On May 8, 2017, Attorney Michael


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Wiseman entered his appearance on behalf of Appellant. On November 17,

2017, Attorney Wiseman filed an amended PCRA petition, replacing Attorney

Rudenstein’s prior amended PCRA petition and raising ten claims. Relevant

to this appeal, Appellant raised the following claims: (1) constructive denial

of Appellant’s right to counsel; (2) four instances of ineffective assistance of

trial counsel; (3) denial of Appellant’s right to a public trial and counsel’s

ineffectiveness in pursuing this claim; (4) prosecutorial misconduct and

counsel’s ineffectiveness in pursuing this claim; (5) cumulative prejudice;

and (6) actual innocence.        See generally Amended PCRA Petition,

11/17/2017.

      An evidentiary hearing was held on September 19 and 20, 2018. At

the hearing, the PCRA court heard testimony from trial counsel, Shabazz,

Mother, Yvonne, Marlena, Michael, Jasmine, and Dr. Gerald Cooke, an expert

in forensic psychology. On September 26, 2018, the PCRA court dismissed

Appellant’s PCRA petition.

      This timely-filed appeal followed. On appeal, Appellant claims that the

PCRA court erred in dismissing nine of his PCRA claims. Appellant’s Brief at

1-2. We begin with our standard of review.

      This Court analyzes PCRA appeals in the light most favorable to
      the prevailing party at the PCRA level. Our review is limited to
      the findings of the PCRA court and the evidence of record and we
      do not disturb a PCRA court’s ruling if it is supported by evidence
      of record and is free of legal error. Similarly, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.
      However, we afford no such deference to its legal conclusions.

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      Where the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary. Finally, we
      may affirm a PCRA court’s decision on any grounds if the record
      supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).

                       Ineffective Assistance of Trial Counsel

      We     begin     with   Appellant’s    ineffective-assistance-of-trial-counsel

claims.    “To establish ineffectiveness of counsel, a PCRA petitioner must

show the underlying claim has arguable merit, counsel’s actions lacked any

reasonable    basis,    and   counsel’s     actions   prejudiced   the   petitioner.”

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations

omitted). “A failure to satisfy any prong of the ineffectiveness test requires

rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963

A.2d 409, 419 (Pa. 2009).

                 Ineffective Assistance of Trial Counsel: Alibi

      Appellant first argues that trial counsel was ineffective for failing to

investigate and interview alibi witnesses, and for opening to the jury with an

alibi defense but then failing to present any alibi witnesses or explain their

absence to the jury. Appellant’s Brief at 32.

      This Court has recognized that trial counsel has a general duty to
      undertake reasonable investigations or make reasonable
      decisions[,] which render particular investigations unnecessary.
      The duty to investigate, of course, may include a duty to
      interview certain potential witnesses; and a prejudicial failure to
      fulfill this duty, unless pursuant to a reasonable strategic


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      decision, may lead to a finding of ineffective assistance.

Commonwealth v. Mitchell, 105 A.3d 1257, 1276 (Pa. 2014) (citations

and quotation marks omitted).

      A claim that trial counsel did not conduct an investigation
      or interview known witnesses presents an issue of arguable
      merit where the record demonstrates that counsel did not
      perform an investigation. It can be unreasonable per se to
      conduct no investigation into known witnesses. A showing of
      prejudice, however, is still required.

Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013) (citations

omitted).

      To prevail on a claim of trial counsel’s ineffectiveness for failure
      to call a witness, an appellant must show: (1) the witness
      existed; (2) the witness was available; (3) counsel was informed
      of the existence of the witness or should have known of the
      witness’s existence; (4) the witness was prepared to cooperate
      and would have testified on appellant’s behalf; and (5) the
      absence of the testimony prejudiced appellant.

Commonwealth v. Cousar, 154 A.3d 287, 312 (Pa. 2017) (citation

omitted).

      At the PCRA hearing, trial counsel testified that he tasked his

investigator, Shabazz, with investigating the alibi witnesses, and he relied on

Shabazz’s oral reports that he had spoken with the alibi witnesses.

Additionally, trial counsel testified that he sent a copy of the filed alibi notice

to Appellant to ensure that the names, as written, were correct.             N.T.,

9/19/2018, at 86-87, 89-90, 96, 103-04, 132, 160.                   Trial counsel

subpoenaed those witnesses, but when he went to speak with the witnesses

before putting them on the witness stand, he learned that they either could

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J-A27043-19

not testify that Appellant was with them or refused to come in to testify.

Accordingly, trial counsel switched his defense strategy back to self-defense

with Appellant’s approval. Id. at 99-100, 102, 134-35, 156-59.

     Mother testified that Shabazz cancelled the first two appointments to

discuss Appellant’s case.     She ultimately met Shabazz at the third

appointment, but the other alibi witnesses were not present. Id. at 13-15.

Shabazz testified that he met with Mother regarding the alibi, and was told a

number of names for people who could testify that Appellant was at

Marlena’s party at the time of the murder.      This list of names included

Mother. Id. at 43-45. Shabazz remained in contact with Mother and her

family throughout Appellant’s trial.    Id. at 49-50.   Mother told Shabazz

about Yvonne’s proposed testimony, and Shabazz interviewed the Lackey

family. Id. at 15, 45-48.

     In dismissing Appellant’s claim, the PCRA court credited trial counsel’s

testimony about his reliance on Shabazz.

     [T]rial counsel investigated the alibi witnesses and reasonably
     relied on his investigation. However, at the time of trial, the
     witnesses either failed to appear or recanted. [Mother] was
     present during the trial and could have testified to the alibi but
     did not do so, and did not dispute the contention made by [trial
     counsel] that the alibi witnesses were recanting. Moreover, the
     putative alibi was unpersuasive. [Marlena] did not specify when
     the party began, nor the time frame when she saw [Appellant]
     at the party. The murder was committed approximately two
     blocks from the address of the party. Even if [Appellant] had
     attended the party he could easily have left, committed the
     shooting, and returned to the party. Therefore, even if the alibi
     testimony had been presented, it would not have resulted in a
     different verdict.

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PCRA Court Opinion, 2/25/2019, at 14 (citations omitted).

      As to trial counsel’s reference to an alibi in his opening statement that

went unfulfilled and unexplained to the jury, the PCRA court found as

follows.

      At [the time of trial counsel’s opening statement,] he was relying
      on the information given to him by his investigator, [Appellant],
      and [Mother]. When he became aware that the alibi witnesses
      were recanting, he changed his strategy to self-defense and
      persuaded the Commonwealth not to mention alibi or ask for an
      adverse inference instruction regarding alibi. [Trial counsel] did
      the best he could under the circumstances created by
      [Appellant] and [Mother]. Moreover, [the trial c]ourt gave a
      cautionary instruction regarding opening statements.

PCRA Court Opinion, 2/25/2019, at 15.

      Upon review, we find that the PCRA court’s findings are supported by

the record and are free of legal error.       The PCRA court credited trial

counsel’s testimony that he believed his investigator interviewed the alibi

witnesses in preparing for trial.       We will not disturb the credibility

determinations of the PCRA court.      Commonwealth v. Roney, 79 A.3d

595, 603 (Pa. 2013) (citation omitted) (“The PCRA court’s credibility

determinations, when supported by the record, are binding on this

Court[.]”).   While trial counsel did not personally investigate the alibi, he

tasked his investigator with doing so and reasonably relied on that

investigation in preparing his alibi defense for trial. Though in hindsight it

may have been preferable in this instance to prepare the witnesses prior to

trial, trial counsel acted reasonably in following his normal practice of

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J-A27043-19

waiting to prepare the witnesses, who he believed his investigator had

spoken with, until shortly before they testified.        As such, he acted

reasonably when he included the alibi in his opening statement, even though

the defense ultimately fell apart. He cannot be faulted for failing to present

witnesses who could not or would not provide an alibi, and counsel’s decision

to focus on self-defense instead of the failed alibi in his closing argument

was reasonable. Thus, the PCRA court did not err in dismissing Appellant’s

PCRA claims.

           Ineffective Assistance of Trial Counsel: Yvonne Lackey

      Appellant next argues that counsel was ineffective for failing to

interview and call Yvonne as a witness. Appellant’s Brief at 36.

      At the PCRA hearing, Yvonne testified that she spoke with Appellant

while he was on his way to Marlena’s party 20 minutes before the shooting.

She further testified that she observed the shooting, and that Appellant was

not the shooter.    According to Yvonne, she was never interviewed by

Shabazz about this murder, even though she told Mother that she was

willing to testify to what she saw.    She testified that Mother nonetheless

asked her to come to court, but she could not remember whether she went.

N.T., 9/19/2018, at 161-62, 164, 166-72, 185-86. However, it was unclear

from her testimony whether she had notified Mother of her proposed

testimony prior to Appellant’s 2013 trial as she referenced 2016 dates and

speaking with Appellant’s PCRA attorneys. Id. at 185-87.


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J-A27043-19

      Shabazz testified that he spoke with the Lackey family, including

Yvonne, and that she told him she did not see the shooting. Id. at 47-48,

51-52.   Appellant testified that he was unsure whether he saw Yvonne on

the day of the shooting. N.T., 9/20/2018, at 62.

      In denying this claim, the PCRA court credited the testimony of

Shabazz that he interviewed Yvonne and she was unable to testify favorably

for the defense. The PCRA court further found Yvonne’s proposed testimony

incredible. PCRA Court Opinion, 2/25/2019, at 16-17.

      Since [Yvonne] was not credible, [trial counsel] could not have
      been ineffective for failing to call [her] as a witness. Her
      proposed testimony that [Appellant] told her that he was going
      to the party does not amount to an alibi that he was actually at
      the party.    [Yvonne’s] conclusion that the shooter was not
      [Appellant] was contradicted by the testimony of [Zahir, Shanae,
      and Nyteisha] who put [Appellant at] the scene.

Id. at 18.

      On appeal, Appellant argues that it was unreasonable for the PCRA

court to credit the testimony of Shabazz over Yvonne because Shabazz did

not take notes and the court’s conclusions were not supported by the record.

Appellant’s Brief at 39. Upon review, although Appellant believes Yvonne to

be more credible than Shabazz, the PCRA court’s conclusions and credibility

determinations are supported by the testimony offered at Appellant’s PCRA

hearing, and we will not disturb them. Accordingly, the PCRA court did not

err in dismissing this claim.




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           Ineffective Assistance of Trial Counsel: Two-Gun Theory

      Appellant next argues that trial counsel was ineffective for “failing to

adequately exploit the fact that two separate guns were fired at the scene”

to   support   Appellant’s   self-defense   theory   in   his   closing   argument.

Appellant’s Brief at 42.

      During his closing argument, trial counsel referenced the ballistics

evidence as follows.

             What are the facts? Not mentioned in the opening, there
      happens to be two guns out there or two people firing. Well,
      isn’t that a surprise? It is not mentioned by [Nyteisha, Zahir, and
      Shanae]. So they put the ballistics man on, Officer Scott. This
      is from one kind of gun, not a Glock. These here are from a
      Glock, square versus circular or whatever the testimony was. So
      how do we get around that? There are two sets of bullets out
      there which usually means there are two people shooting.
      (Indicating).

             Oh, it is a relic. Of course. Did anyone interview, was
      there a shooting the night before or two weeks before? This is a
      busy street. So let’s look at relics. … Let’s see if these are
      relics, things [lying] around on the street for days. You can look
      at them back in the jury room. I will not hand them to you.
      They don’t have the consistency of something [lying] out in the
      street, filled with dirt, run over by cars, things of that nature.
      We need a little more than that. Maybe it was last night.
      Unfortunately, there are a lot of shootings in the streets of
      Philadelphia[.] …

            There are two different shells and they are not that far
      apart. If you look at the photographs, and you have seen these
      on the screen … this is the scene looking east …. Here are the
      two shells I just had in my hand sitting on the box a few seconds
      ago. They are about 30, 40 feet on the corner. It is really not
      that far. It is not that far. It is like the first down and-a-half. …

           So what is going on? We have two sets of shells here and
      we don’t have an explanation of what’s happening but let’s keep

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     digging. We are trying to find out and, unfortunately, I am not
     going to be able to give you the conclusive answers. It is not
     like Perry Mason where a witness gets up and says I did it. … I
     cannot give that to you but I am raising issues that should
     concern you and should be debated and discussed before you
     reach a conclusion in this case.

N.T., 9/27/2013, at 27-30.

     At Appellant’s PCRA hearing, trial counsel testified that none of the

witnesses, either in their police statements or trial testimony, placed a gun

in Aursby’s hand. It was only Appellant’s statement to police that referenced

Aursby possibly having a gun. N.T., 9/19/2018, at 137.      Therefore, when

trial counsel switched his defense strategy from an alibi to self-defense, he

chose to focus on establishing reasonable doubt by arguing that Appellant’s

statement was coerced, and that the Commonwealth witnesses recanted and

were inconsistent. Id. at 135, 137. This avenue was what he perceived as

the best way to take a case that had fallen apart and “put enough back

together that there’d be some form of reasonable doubt.” Id. at 137.

     In dismissing Appellant’s claim, the PCRA court found that trial

counsel, after having to switch defense strategies mid-trial, effectively

addressed a two-gun theory in his closing argument. PCRA Court Opinion,

2/25/209, at 18. Upon review, we hold that the PCRA court’s conclusion is

supported by the record. Because counsel had a reasonable strategic basis

for arguing the ballistics evidence as he did, the PCRA court did not err in

dismissing this PCRA claim.



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         Ineffective Assistance of Trial Counsel: Mental Health Evidence

        Appellant next argues that trial counsel was ineffective for failing to

“obtain records or have Appellant evaluated by a mental health professional

to determine if his emotional and psychological deficits impaired his ability to

make a knowing, intelligent, and voluntary waiver of his Miranda[4] rights.”

Appellant’s Brief at 44 (citation omitted).    Appellant argues that “[w]hile

counsel filed a motion to suppress the statement [given to police], and

presented argument that Appellant had cognitive and emotional deficits, he

failed to support this argument by collecting relevant records related to

Appellant’s life, schooling, and mental health, and failed to have him

evaluated by a mental health professional.”        Id. (emphasis in original).

Additionally, Appellant argues that counsel should have presented this

evidence to the jury. Id. at 46.

        We begin by observing the following.

        [T]here is no per se rule that there can be no voluntary waiver
        when a person is mentally ill.

             The voluntariness standard of Miranda requires that
             the prosecution prove by a preponderance of the
             evidence that the waiver is knowing and intelligent.
             This requires a two-step analysis. First, the waiver
             must have been voluntary in the sense that it was an
             intentional choice made without any undue
             governmental pressure; and, second, that the waiver
             must have been made with a full comprehension of
             both the nature of the right being abandoned and
             the consequences of that choice.

4   Miranda v. Arizona, 384 U.S. 436 (1966).

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J-A27043-19



       [Commonwealth v.] Logan, [] 549 A.2d [531,] 537 [(Pa.
       1988)] (citation omitted).

            Thus, in the suppression realm, the focus is upon
            police conduct and whether a knowing, intelligent
            and voluntary waiver was effected based on a
            totality of the circumstances, which may include
            consideration   of    a   defendant’s   mental    ...
            condition[.] When a defendant alleges that his
            waiver or confession was involuntary, the question is
            not whether the defendant would have confessed
            without interrogation, but whether the interrogation
            was so manipulative or coercive that it deprived the
            defendant of his ability to make a free and
            unconstrained decision to confess.

       [Commonwealth v.] Sepulveda, [] 55 A.3d [1108,] 1136-37
       [(Pa. 2012)] (quotation marks and quotations omitted).

Commonwealth v. Mitchell, 105 A.3d 1257, 1268 (Pa. 2014) (some

citations omitted).

       At the PCRA hearing, Dr. Cooke testified that in preparation for the

PCRA    hearing,   he   conducted   a    forensic   evaluation   of   Appellant   by

interviewing Appellant, conducting a history, administering various tests to

Appellant, and reviewing Appellant’s records.            He testified that this

evaluation revealed that Appellant had previously been diagnosed with post-

traumatic stress disorder (PTSD), anti-social traits, and impulse control

disorder.   After completing a program at Benchmark prior to the murder,

Appellant’s diagnosis changed in that both the PTSD and anti-social traits

diagnoses were resolved.        However, upon discharge, Appellant was

diagnosed with dysthymia, or persistent depressive disorder. Appellant was


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prescribed anti-depressants and treatment, with which he did not comply.

Additionally, Appellant had an IQ of 85, which was in the low-end of the

average range. Dr. Cooke concluded that Appellant was cognitively able to

understand the Miranda warnings, and that based on his functioning the

day he provided his statement to police, he would have been mildly-to-

moderately depressed. N.T. 9/20/2018, at 17-18, 22-25, 30-31, 35, 37-39,

51.   Finally, Dr. Cooke testified that he would have been available as a

witness at Appellant’s 2013 jury trial. Id. at 52.

      In denying Appellant’s claim, the PCRA court considered this testimony

and the proposed records and found that Appellant was not prejudiced by

their absence.

            In denying [Appellant’s] motion to suppress his statement,
      th[e c]ourt found that [Appellant] testified that at the time he
      turned himself in to the police, he was taking Melatonin and
      Benadryl and a medicine for depression, the name of which he
      did not recall. [Appellant] testified that he had a learning
      disability and that he could read and write very little. N.T.,
      9/24/2013[], at 100.

            The additional testimony presented by Dr. Cooke at the
      evidentiary hearing does not change this Court’s view of the
      motion to suppress. The fact that [Appellant] had an IQ of 85[]
      would not lead the court to conclude [Appellant] could not make
      a knowing, intelligent, and voluntary waiver. Accordingly, [the
      PCRA c]ourt [found] that Dr. Cooke’s testimony gave very little
      support to this claim that [Appellant] was impaired to such a
      degree that he could not make an intelligent and voluntary
      waiver.    Neither Dr. Cooke’s testimony nor the Benchmark
      records would have changed the result on the motion to
      suppress. Nor would the introduction of these items at trial have
      persuaded the jury to disbelieve the voluntariness or credibility
      of [Appellant’s] statement.


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PCRA Court Opinion, 2/25/2019, at 20.

      Upon review, we conclude that the record supports the PCRA court’s

finding that Appellant was not prejudiced by the absence of this evidence,

and therefore counsel was not ineffective for failing to present it.

                            Pretrial Communication

      We now review whether the PCRA court erred in denying Appellant’s

constructive-denial-of-trial-counsel    PCRA claim.     Specifically,   Appellant

claims that he was constructively denied the right to trial counsel because

his only pre-trial interactions with counsel “consisted of a single 20-30

minute video conference” and one additional face-to-face conference in the

cell room next to the courtroom. Appellant’s Brief at 27.

      The seminal case for reviewing this type of claim is Commonwealth

v. Brooks, 839 A.2d 245 (Pa. 2003).5

      Brooks essentially announced the minimum action required by
      counsel to provide what is deemed constitutionally effective
      representation in capital cases: counsel must conduct at least
      one face-to-face meeting with his client.

      More recently, in [] Johnson, 51 A.3d 237[], the defendant,
      who was [] convicted of first-degree murder and sentenced to
      life in prison, argued on collateral appeal that trial counsel was
      ineffective where he failed to have a face-to-face meeting with
      him until the eve of trial. The majority determined that where
      counsel had a last minute meeting with Johnson on the eve of
      trial, a face-to-face meeting with the defendant at his
      preliminary hearing, and a phone consultation with his client, he

5 Brooks was a capital case. This Court has applied Brooks to non-capital
cases. See Commonwealth v. Johnson, 51 A.3d 237 (Pa. Super. 2012)
(en banc).

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     was not per se ineffective. Essentially, the Court found that
     counsel’s limited pretrial contact with his client was entirely
     distinguishable from the attorney in Brooks who “failed to meet
     with his client ‘at all.’” Id. at 243. While our Court acknowledged
     that additional pre-trial attorney-client contact “may have been
     advisable,” it declined to read Brooks in a way that would
     prevent it from analyzing the substantive impact that counsel
     had on the defendant’s trial strategy. Id. at 243-44.

Commonwealth v. Brown, 145 A.3d 196, 203 (Pa. Super. 2016) (footnote

omitted; emphasis in original).

     In denying Appellant’s PCRA claim, the PCRA court found the instant

case analogous to Johnson.

           Here, [Appellant] was sentenced to life imprisonment
     following a non-capital murder trial. Trial counsel conducted at
     least two meetings with [Appellant]; one via video conference,
     and one face-to-face in the holding cell of the courtroom. Based
     on those meetings, and the exchange of letters,[6] trial counsel
     was able to prepare two defense strategies for [Appellant]. Trial
     counsel originally prepared this case as a self-defense case, and
     changed his trial strategy when [Appellant] switched his story to
     an alibi. A private investigator was sent to collect evidence for
     the self-defense claim, and later for the alibi story. Trial counsel
     investigated the alibi claim and in good faith believed that alibi
     evidence would be available for trial. Trial counsel even
     subpoenaed four witnesses to support the alibi defense. When
     that claim fell apart after the start of trial, counsel was able to
     competently argue a self-defense claim that was ultimately
     unsuccessful. N.T., 9/26/2018, at 51-60, 76.

           Like in Johnson, trial counsel consulted with [Appellant]
     multiple times, and based on the substantive impact of those
     consultations was able to prepare a defense strategy on behalf of
     [Appellant].   Therefore, [Appellant] was not constructively
     denied counsel; and this claim warrants no relief.



6Trial counsel sent multiple, apparently unanswered, letters to Appellant.
See N.T., 9/19/2018, at 114-16; N.T., 9/20/2018, at 57.

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PCRA Court Opinion, 2/25/2019, at 12-13.

       Upon review, we agree with the PCRA court that trial counsel’s contact

is more akin to Johnson than Brooks. The record before us supports the

PCRA court’s conclusion that trial counsel’s actions were sufficient to allow

him to “obtain adequate information to defend [Appellant] against first-

degree murder charges[.]”       Johnson, 51 A.3d at 244.      Accordingly, the

PCRA court did not err in dismissing this claim.

  Prosecutorial Misconduct and Ineffective Assistance of Appellate Counsel

      Appellant next argues that it “was an abuse of discretion to deny

Appellant’s claim that he was deprived of due process by the prosecutor’s

misconduct and that appellate counsel was ineffective for inadequately

litigating this claim.”   Appellant’s Brief at 51.   While acknowledging that

appellate counsel previously raised this claim in Appellant’s direct appeal,

Appellant avers that the PCRA court erred in dismissing this claim as

previously litigated because appellate counsel “presented an incomplete

argument and failed to cite controlling authority which, if considered by this

Court, would likely have changed the direct appeal outcome.”       Id. at 52.

Moreover, Appellant argues that the “direct appeal opinion finding some of

the statements an invited response was incorrect[.]” Id. at 53.

      In order to be eligible for relief under the PCRA, a petitioner must

plead and prove by a preponderance of the evidence that the allegation of

error has not been previously litigated. 42 Pa.C.S. § 9543(a)(3). An issue


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J-A27043-19

has been previously litigated if “the highest appellate court in which the

petitioner could have had review as a matter of right has ruled on the merits

of the issue[.]” 42 Pa.C.S. § 9544(a)(2). However, our Supreme Court has

held that “ineffectiveness claims are distinct[] from those claims that are

raised on direct appeal.”        Commonwealth v. Collins, 888 A.2d 564, 573

(Pa. 2005).

       The former claims challenge the adequacy of representation
       rather than the conviction of the defendant. Accordingly, we are
       persuaded by Appellant’s position that a Sixth Amendment claim
       of ineffectiveness raises a distinct legal ground for purposes of
       state PCRA review under § 9544(a)(2). Ultimately, the claim
       may fail on the arguable merit or prejudice prong for the reasons
       discussed on direct appeal, but a Sixth Amendment claim raises
       a distinct issue for purposes of the PCRA and must be treated as
       such.

Id.

       We agree with the PCRA court’s conclusion that Appellant’s claim of

prosecutorial misconduct was previously litigated, and affirm the dismissal of

this claim on that basis. However, based on Collins, we conclude that the

PCRA    court   erred    in   dismissing   Appellant’s   ineffective-assistance-of-

appellate-counsel claim as previously litigated.7, 8 We thus turn to the merits

of Appellant’s ineffectiveness claim.



7 This Court “may affirm a PCRA court’s decision on any grounds if the
record supports it.” Benner, 147 A.3d at 919 (citation omitted).
8 Insofar as Appellant claims that appellate counsel was ineffective for failing
to argue prosecutorial misconduct in the Commonwealth’s opening
statement based on the prosecutor’s statement that she “did not believe”
(Footnote Continued Next Page)

                                        - 19 -
J-A27043-19

      On direct appeal, a prior panel of this Court reviewed the underlying

claim of prosecutorial misconduct raised by appellate counsel. Although this

Court found that portions of the prosecutor’s closing argument violated the

American Bar Association standards, we ultimately rejected Appellant’s

claim, concluding as follows.

      The prosecutor unambiguously expressed her personal opinion of
      Appellant’s veracity. Nonetheless, the law requires us to consider
      those statements in context rather than isolation. After the
      objectionable statement, the prosecutor explained in detail –
      based on the evidence of record and not based on her opinion –
      why Appellant’s statement was not believable. Considering the
      prosecutor’s statement in context, we believe it was a fair
      response to [the assertion of] Appellant’s counsel[] that
      Appellant’s statement [had] completely refute[d] all of the
      testimony evincing his guilt. Per [Commonwealth v.] Chmiel,
      [889 A.2d 501, 543 (Pa. 2005),] a prosecutor is permitted to
      make a fair response to defense counsel’s argument.
      Furthermore, we must analyze a prosecutor’s conduct under a
      harmless error standard. As set forth above, the record contains
      substantial direct evidence – in the form of eyewitness testimony
      – confirming Appellant’s guilt. Given the overwhelming evidence
      of Appellant’s guilt and the comparative insignificance of the
      prosecutor’s remarks during closing, we cannot conclude the
      isolated objectionable remarks warrant a new trial.


Rogers, 122 A.3d 1140 (unpublished memorandum at 7-8) (some citations

omitted).

      In his PCRA petition, Appellant argued that appellate counsel rendered

ineffective assistance of counsel by failing to argue adequately why


(Footnote Continued)   _______________________

the reasons offered by Appellant, Appellant’s Brief at 52, trial counsel did not
object to that statement, and therefore appellate counsel cannot be found
ineffective for failing to raise it on appeal. See N.T., 9/24/2013, at 131.

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J-A27043-19

Appellant was prejudiced by the Commonwealth’s statements, by failing to

cite controlling authority, and by failing to distinguish the instant case from

Chmiel,    supra.     Amended         PCRA   Petition,   11/17/2017,    at     77,   79.

Specifically,   Appellant   assails    appellate   counsel    for   failing     to   cite

Commonwealth v. Revty, 295 A.2d 300 (Pa. 1972); Commonwealth v.

Johnson, 533 A.2d 994 (Pa. 1987); Commonwealth v. Cronin, 346 A.2d

59 (Pa. 1975); Commonwealth v. Lipscomb, 317 A.2d 205 (Pa. 1974);

Commonwealth v. Potter, 285 A.2d 492 (Pa. 1971); and Commonwealth

v. Culver, 51 A.3d 866 (Pa. Super. 2012), in his appellate brief. Amended

PCRA Petition, 11/17/2017, at 72-73, 78. Had counsel cited these cases and

briefed their significance to this Court, Appellant argued that there was “a

reasonable probability that the outcome would have been different.” Id. at

77-79.

      Preliminarily, we note that no record exists as to whether appellate

counsel had a reasonable basis for briefing this claim as he did. However,

this dearth of record evidence is due to Appellant’s choosing not to present

evidence at the PCRA hearing. At the PCRA hearing, Appellant notified the

PCRA court that he would be presenting evidence as to specific ineffective

assistance of trial counsel claims and his claim that he was constructively

denied the right to trial counsel.        N.T., 9/19/2018, at 7-8.            As to the

remainder of his PCRA claims, Appellant’s PCRA counsel stated that “[t]he

other issues were either [sic] we don’t believe require a presentation, we will


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J-A27043-19

not be pursuing them.” Id. at 8. It is well-settled that “a PCRA petitioner

bears     the     burden    of        demonstrating     counsel’s    ineffectiveness.”

Commonwealth v. Miller, 212 A.3d 1114, 1126 (Pa. Super. 2019) (citation

omitted).       Moreover, “[o]ur Supreme Court has articulated a strong

preference      that counsel     be    heard   before   being found    ineffective[.]”

Commonwealth v. Durrett King, 195 A.3d 255, 263 (Pa. Super. 2018)

(citation omitted).

        Because Appellant had the opportunity to call appellate counsel at the

PCRA hearing, but declined to do so, Appellant has failed to sustain his

burden of proof. Moreover, our review of the cases cited by Appellant does

not convince us that had appellate counsel presented those cases, the

outcome      of   Appellant’s    direct    appeal     would   have   been   different.

Accordingly, the PCRA court did not err in dismissing this claim.

                                 Cumulative Prejudice

        We next review Appellant’s claim of cumulative prejudice. Appellant’s

Brief at 55.

         [W]here a claimant has failed to prove prejudice as the result of
        any individual errors, he cannot prevail on a cumulative effect
        claim unless he demonstrates how the particular cumulation
        requires a different analysis. Although cumulative prejudice
        from individual claims may be properly assessed in the
        aggregate when the individual claims have failed due to lack
        of prejudice, nothing in our precedent relieves an appellant who
        claims cumulative prejudice from setting forth a specific,
        reasoned, and legally and factually supported argument for the
        claim. A bald averment of cumulative prejudice does not
        constitute a claim.


                                          - 22 -
J-A27043-19

Commonwealth v. Hutchinson, 25 A.3d 277, 318-19 (Pa. 2011) (citations

and quotation marks omitted).

      Here, Appellant’s entire argument in support of this claim is as follows.

            Appellant raised numerous claims of ineffective assistance
      of counsel.    When such claims fail individually for lack of
      prejudice, then relief may be granted based on cumulative
      prejudice. Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa.
      2012).

             The cumulative prejudice from trial counsel’s miscues and
      inactions created the reasonable probability that but for the
      errors and omissions of counsel, the outcome of [sic] would have
      been different.

Appellant’s Brief at 55-56.   See also Appellant’s Amended PCRA Petition,

11/17/2017, at 82-83 (restating each individual claim of error but reaching

the same bald conclusion). Such a “bald averment of cumulative prejudice

does not constitute a claim.” Hutchinson, 25 A.3d at 319. Accordingly, the

PCRA court did not err in dismissing this claim.

                               Actual Innocence

      We next review Appellant’s argument that the “continued incarceration

of a factually innocent person is a deprivation of that individual’s right to

liberty and to be free from cruel and unusual punishment” and that such a

claim is a cognizable basis for relief under the Pennsylvania and United

States constitutions. Appellant’s Brief at 56.

      Our Supreme Court has held that such a claim is cognizable under the

PCRA because “although § 9543 does not use the term ‘actual innocence’ in

enumerating cognizable claims, the Act specifically states it is intended to

                                    - 23 -
J-A27043-19

‘provide[ ] for an action by which persons convicted of crimes they did not

commit ... may obtain collateral relief.’”   Commonwealth v. Abu-Jamal,

833 A.2d 719, 728 (Pa. 2003) (quoting 42 Pa.C.S. § 9542). As such, “[o]ur

review is limited to the findings of the PCRA court and the evidence of record

and we do not disturb a PCRA court’s ruling if it is supported by evidence of

record and is free of legal error.” Benner, 147 A.3d at 919 (quoting Perry,

128 A.3d at 1289).     “Similarly, we grant great deference to the factual

findings of the PCRA court and will not disturb those findings unless they

have no support in the record.” Id.

      On appeal, Appellant argues that he presented evidence to establish

his innocence via Yvonne, “an exculpatory witness who saw the shooting and

who testified that the shooter was not Appellant. The PCRA court’s holding

that Appellant ‘baldly asserted his innocence, whereas the evidence

conclusively proves otherwise,’ is an abuse of discretion.” Appellant’s Brief

at 56-57 (citations omitted).

      As discussed supra, the PCRA court found Yvonne’s testimony

incredible, and we concluded that ruling was supported by the record.

Accordingly, the PCRA court did not err in dismissing this claim.

                           Closing the Courtroom

      Finally, we review Appellant’s argument that the PCRA court abused its

discretion in denying his claim that “closing the courtroom for the testimony

of two Commonwealth witnesses violated Appellant’s right to a public trial.”


                                    - 24 -
J-A27043-19

Appellant’s Brief at 47 (citation omitted). Specifically, Appellant claims that

trial counsel was ineffective for failing to object to the closing of the

courtroom following an allegation of witness intimidation. Id. at 49, 51.

      In Commonwealth v. Penn, 562 A.2d 833 (Pa. Super. 1989), this

Court addressed the issue of witness intimidation as the basis for a trial

court’s decision to close a courtroom.

      Criminal trials in the United States have, by historical tradition,
      and under the First Amendment, been deemed presumptively
      open to public scrutiny and this ... presumption of openness
      inheres in the very nature of the criminal trial under our system
      of justice.

                                     ***

      The openness of criminal trials and the purposes which this
      openness is intended to serve, are protected not only by
      tradition, but by provisions in both the United States and the
      Pennsylvania Constitutions as well. See U.S. Const. Amend. 1;
      U.S. Const. Amend. 6; U.S. Const. Amend. 14; Pa. Const. Art. 1,
      sec. 7; Pa. Const. Art. 1, sec. 9; Pa. Const. Art. 1, sec. 11.

                                     ***

      Though the right to an open public trial is central to our system
      of criminal justice, the right is not absolute.

                                     ***

      This case involves an order which directed the court to be
      cleared during the testimony of a witness who was reported to
      have claimed that he was intimidated by unnamed persons who
      sought to prevent or alter his testimony against [a defendant].
      In appropriate cases, full or partial closure of criminal
      proceedings may properly be granted in response to witness
      intimidation.

                                     ***


                                    - 25 -
J-A27043-19


     Succinctly, if the means of justice are to be preserved and the
     ends of justice protected, courts must exercise their discretion so
     as to dispel any belief that intimidation of victims or witnesses
     will serve the ends to which the intimidation is directed.

                                    ***

     However, a bald assertion of alleged intimidation does not justify
     the kind of encroachment on a defendant’s Sixth Amendment
     right to a public trial which clearing the courtroom for a
     witness’[s] testimony entails. To the contrary, specific
     procedures designed to ensure a proper balancing of competing
     interests must be followed before even a partial closure for a
     single witness’[s] testimony may be ordered. …

           The presumption of openness may be overcome only
           by an overriding interest based on findings that
           closure is essential to preserve higher values and is
           narrowly tailored to serve that interest. The interest
           is to be articulated along with findings specific
           enough that a reviewing court can determine
           whether the closure order was properly entered.

     In the instant case, the trial court made no findings whatsoever
     regarding the nature, extent, or impact of the alleged
     intimidation on [the witness]. Rather than questioning [the
     witness] himself, the trial court relied entirely on the
     prosecutor’s second-hand, hearsay, rendition of the allegations
     made by [the witness] in explanation of his failure to comply
     with the court’s subpoena.

Id. at 835-38 (some citations and quotation marks omitted).

     In Penn, this Court held that the trial court abused its discretion when

it failed to examine the allegedly-intimidated person for itself in order to

assess the person’s credibility and determine the “nature, extent, and impact

of any attempts to intimidate” the witness, or to “make specific factual

determinations based upon sufficiently reliable information which would



                                   - 26 -
J-A27043-19

support a conclusion that important interests existed which would justify the

partial closure ordered.” Id. at 839.

      While the right to a public trial may certainly bow to interests in
      protecting witnesses from injury or intimidation in some cases,
      such an encroachment on a defendant’s rights requires, at a
      minimum, that the trial court first determine whether or not the
      threat of injury or intimidation in fact exists.

Id. (emphasis in original).

      Also, this Court concluded that the trial court abused its discretion

when it failed to consider alternatives to closing the courtroom or explain on

the record why alternatives “would be impractical or inadequate to serve the

interest(s) that closure of the trial during [the witness’s] testimony was

intended to protect.” Id.

      By way of background, it appears that immediately following Zahir’s

testimony on September 24, 2013, Zahir’s mother, April Talley, allegedly

was threatened because Zahir testified against Appellant. Concerned about

the safety of Zahir’s sister, Shanae, who was set to testify on September 25,

2013, the trial court held an in-chambers discussion with the prosecutor and

trial counsel about closing the courtroom. N.T., 9/25/2013, at 2-8.9        Trial

counsel requested that the trial court warn the public that any intimidation

would be referred to the prosecuting authority instead of closing the

courtroom because “you give him a new trial if the public courtroom is



9 Additionally, a discussion was held about not referring to Shanae as a
police informant during direct or cross-examination.

                                    - 27 -
J-A27043-19

closed.” Id. at 8. The trial court disagreed, stating that it could close the

courtroom with good reason, but that it would need to hear testimony from

April first. Id. at 8-9. Trial counsel then changed course, advising the trial

court that hearsay testimony from the officer who spoke to April would

constitute a sufficient basis for the trial court to close the courtroom for the

Commonwealth witnesses. Id. at 9-10. Thereafter, Officer Anthony Jackson

testified that he was told by April that on the evening of September 24,

2013, unnamed individuals came to her house and told her that they were

going to “fuck up” her son for testifying. Id. at 16-17. As a result of this

threat, she relocated. Id. at 16. Based upon that testimony, the trial court

closed the courtroom for the testimony of Shanae.         The trial court also

closed the courtroom for the testimony of Nyteisha because she lived in the

same neighborhood and would similarly place Appellant at the shooting. Id.

at 18-19. Trial counsel did not object.10

      In denying Appellant’s PCRA claim, the PCRA court found that trial

counsel was not ineffective for failing to object because the objection would

have been meritless. PCRA Court Opinion, 2/25/2019, at 21.




10 Alternatively, Appellant argues that if this Court finds trial counsel did
object, appellate counsel was ineffective for failing to raise this claim in
Appellant’s direct appeal. Because we agree that trial counsel did not
object, we need not reach this alternate argument.



                                     - 28 -
J-A27043-19


            Here, [the trial c]ourt cleared the courtroom for the
      testimony of Zahir[11] [], Shanae [], and Nyteshia [] in the
      interest of safety. Th[e trial c]ourt only did so after hearing
      testimony from Officer Jackson that individuals had shown up at
      the house of [Zahir and Shanae’s] mother, and threatened to
      physically assault [Zahir] if he testified. N.T., 9/25/2013[,] at
      15-18.

             As a result of the threats to the mother of two of the
      witnesses, th[e trial c]ourt ordered that the courtroom be
      cleared for the testimony of the three witnesses who placed
      [Appellant at] the scene of the shooting. In so doing, th[e trial
      c]ourt limited the risk that the news of their testimony would
      reach hostile persons.      The basic guarantees of fairness,
      including the making of a record for a later review, were not
      infringed.

Id. at 21 (footnote omitted).

      As in Penn, the trial court in the instant case did not interview the

intimidated person.    While the trial court in the instant case heard the

testimony of the reporting police officer, the police officer’s testimony about

the threats was hearsay.        Therefore, it was not sufficiently reliable

information upon which the trial court could find that unnamed individuals

threatened April. Thus, as in Penn, we conclude that the trial court abused

its discretion when it closed the courtroom without questioning April to

ascertain “whether or not the threat of injury or intimidation in fact

exist[ed,]” and for failing to consider alternatives to closing the courtroom.

562 A.2d at 839.

11 We note that the PCRA court states that it also cleared the courtroom for
the testimony of Zahir. However, Zahir testified prior to the threat, and in
fact, his testimony was the impetus for the threat. See N.T., 9/25/2013, at
2, 15-16.

                                    - 29 -
J-A27043-19

      Accordingly, we conclude that the underlying claim of error has

arguable merit.   In order to obtain relief on his ineffective-assistance-of-

trial-counsel claim, though, Appellant must also establish that trial counsel’s

failure to object lacked any reasonable basis and that Appellant was

prejudiced thereby.12 See Jones, 71 A.3d at 1063.

      Preliminarily, we note that no record exists as to whether trial counsel

had a reasonable basis for not objecting to the trial court’s closing of the

courtroom. Once again, this dearth of record evidence is due to Appellant’s

choice not to present this evidence at the PCRA hearing, as discussed supra.

See N.T., 9/19/2018, at 7-8.

      As   discussed   supra,   “a   PCRA     petitioner   bears   the   burden   of

demonstrating counsel’s ineffectiveness[,]” Miller, 212 A.3d at 1126

(citation omitted), and “[o]ur Supreme Court has articulated a strong

preference   that counsel   be   heard      before   being found     ineffective[.]”

Durrett King, 195 A.3d at 263 (citation omitted). Because Appellant had

the opportunity to question trial counsel about his failing to object to the



12 On direct appeal, when a defendant has been denied her right to a public
trial, a new trial must be granted and no showing of prejudice is required
because the violation is in “the nature of a structural error.”          See
Commonwealth v. Rega, 70 A.3d 777, 786-87 (Pa. 2013) (citation
omitted). When a defendant does not object at trial, that claim is waived for
appellate review. Id. Thereafter, the only cognizable aspect of such a claim
in the PCRA context is ineffective assistance of counsel, wherein a defendant
must prove prejudice. Id. at 787. Because trial counsel failed to object,
and the claim regarding closure is before this Court in the context of an
ineffective-assistance-of-counsel claim, Appellant must prove prejudice.

                                     - 30 -
J-A27043-19

closing of the courtroom at the PCRA hearing, but declined to do so,

Appellant has failed to sustain his burden of proof. See Commonwealth v.

Koehler, 36 A.3d 121, 146-47 (Pa. 2012) (rejecting ineffectiveness claim

because PCRA counsel failed to question trial counsel at PCRA hearing

regarding any potential reasons for the allegedly ineffective conduct).

Accordingly, the PCRA court did not err in dismissing this claim.

                                  Conclusion

      Based on the foregoing, we affirm the order of the PCRA court

dismissing Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2020




                                    - 31 -
