J. S63006/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
JAMEL S. FORD,                              :          No. 2332 EDA 2015
                                            :
                          Appellant         :


                   Appeal from the PCRA Order, July 20, 2015,
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos. CP-51-CR-0002100-2008,
              CP-51-CR-0005080-2007, CP-51-CR-0005081-2007,
                            CP-51-CR-0005082-2007


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED DECEMBER 06, 2016

      Jamel S. Ford appeals from the order entered in the Court of Common

Pleas of Philadelphia County that dismissed, without a hearing, his first

petition   filed   pursuant   to   the   Post   Conviction   Relief   Act   (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In a prior memorandum, affirming appellant’s judgment of sentence on

direct appeal, this court summarized the history of this case as follows:

                   On December 5, 2006, around 11:10 p.m.,
             while walking at Emerald and Ontario Streets in
             Philadelphia, Jamal Wright and Stephanie Wilcox
             conversed with Haneef Dyches, who was also known
             as “Neef” and “Neef Bucks.” [Appellant] approached
             on foot, acknowledged Wright and Dyches, and
             followed Dyches across Ontario Street. As Wright
             and Wilcox followed, [appellant] abruptly pulled a
             gun from his pocket and shot Wright in the head,


* Former Justice specially assigned to the Superior Court.
J. S63006/16


          causing Wright to fall to the ground. [Appellant]
          shot Wilcox in the right side of her face, and then
          shot Wright again in the chest as Wright lay
          motionless on the ground. Wilcox ran down the
          block, hid, and called emergency services. Dyches
          began to walk away, heard a click, and looked back
          over his shoulder. [Appellant], with his gun aimed at
          the back of Dyches’ head, told Dyches “Pussy, you
          ain’t seen nothing” and then left the area.
          Luis Rivera, who was inside his residence on the
          2000 block of Emerald Street, heard the three shots,
          looked out the window, saw [appellant] and Dyches
          walking in opposite directions, and saw Wright’s
          body lying on the sidewalk.

                 Police arrived, sought medical treatment for
          Wilcox, secured the area, and recovered three (3)
          fired .380 caliber casings from the ground next to
          Wright’s body, which were analyzed by a ballistics
          expert and were found to exhibit similar firing
          characteristics. Wright was already dead and police
          recovered the following items from his body: a semi-
          automatic Tec-9, 9 millimeter pistol, which was in
          Wright’s waistband; forty dollars ($40.00); a cell
          phone; and a bag containing ten (10) crack cocaine
          packets. Ballistics analysis indicated that the Tec-9
          was operable, contained no cartridges, and did not
          fire the .380 caliber casings.

                 Medical Examiner Bennett Preston, M.D.,
          performed Wright’s autopsy, which confirmed that
          Wright was shot in the right side of his head at close
          range, e.g., six inches from the gun barrel, that
          Wright sustained head injuries, e.g., terminal fall
          injuries, which were likely incurred when he fell after
          he was shot in the head, that Wright was also shot in
          the chest from a slightly more distant range, that the
          cause of Wright’s death was multiple gunshot
          wounds, and that the manner of Wright’s death was
          homicide.

                Wilcox was hospitalized for four (4) days for a
          shattered jaw, eight (8) shattered teeth, and severe
          lacerations to her face, mouth, and tongue, all of


                                   -2-
J. S63006/16


             which required reconstructive surgery. She could
             not eat or speak normally for nearly eight (8)
             months due to a metal fixation device on her exterior
             jaw. Wilcox’s jaw cannot be fully reconstructed,
             eight (8) teeth remain missing, and she still suffers
             facial numbness and scarring.

                    An investigation ensued, during which Wilcox
             and Dyches gave statements and, when shown an
             array with [appellant]’s photograph, separately
             identified [appellant], who they know as ‘Face,’ as
             the shooter; Wilcox also identified Dyches, by
             photograph, as the eyewitness.         A warrant for
             [appellant]’s arrest was issued, but [appellant] could
             not be located and federal authorities were notified
             that [appellant] was a fugitive.

                    On February 7, 2007, [appellant] was detained
             in Atlanta, Georgia as a possible fugitive. Atlanta
             Homicide Investigator Brett Zimbrick, preliminarily
             asked [appellant] if he was wanted in Philadelphia
             and [appellant], who appeared sober, responded
             affirmatively, admitted that he shot a man in
             December 2006. [Appellant] received and waived
             Miranda[1] warnings and gave a statement to
             Investigator Zimbrick, which was videotaped, in
             which he admitted that he shot Wright and Wilcox,
             claimed that Wright had robbed him of drugs and
             money earlier that day, and claimed that, just before
             he shot Wright, he believed Wright was pulling out a
             gun. [Appellant] was transported to Philadelphia,
             arriving on February 20, 2007, and was brought to
             the Philadelphia Homicide Unit and interviewed by
             Detective William Sierra. [Appellant] received and
             waived Miranda warnings and gave a second
             statement,    memorialized    in   writing,   therein
             admitting that he shot Wilcox and Wright on
             December 5, 2006, claiming that he did so after
             Wright pulled out a gun, and also claiming that, in
             the course of that same day, he had a couple of
             drinks, he was robbed by Wright, he purchased ‘wet’
             or PCP, and he made various cocaine sales.

1
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                     -3-
J. S63006/16



                 On April 25, 2007, Dyches testified at
          [appellant]’s preliminary hearing in this case. On
          that day and for the next six (6) months, Dyches
          was in custody for an unrelated case and was housed
          at the Philadelphia Detention Center (“PDC”),
          cellblock “G”.

                 On occasion, inmates housed in separate
          cellblocks at the Detention Center are able to
          interact with each other in the kitchen, church,
          medical center, and gym.

                 On August 3, 2007, as Philadelphia Corrections
          Officer Chi Haliburton, an officer with fourteen
          years[’] experience, was on duty at the Philadelphia
          Detention Center and was inspecting incoming mail,
          her suspicious [sic] were aroused by a letter
          postmarked “August 2, 2007,” which was addressed
          to Jamal Bowens, an inmate housed in the
          “D” cellblock, with a return address of ‘Rel-Rel, 2528
          North 15th Street, Philadelphia, Pennsylvania,
          19132[.]” The writer, who identified himself in the
          letter as “Terrell Bowens, PP Number 968912, 7901
          State Road, Philadelphia,” requested that Jamal
          Bowens “take care” of “some bull on your block
          name Neef Buck…that nigga ratting on my
          folks…Bang that nigga the fuck out or fuck that nigga
          up…Make that nigga check on P.C.,[Footnote 4]” and
          enclosed a copy of Dyches’ statement in this matter,
          which was modified with a superimposed copy of
          Dyches’ police photograph.

               [Footnote 4] “P.C.” is a reference to
               protective custody, a heightened security
               custody for inmates who are not
               permitted to mingle with the prison
               population.

                Police investigation revealed that Terrell
          Bowens resided at 2528 North 15th Street in
          Philadelphia, had a matching Police Photograph
          Number/PP Number, was in custody at the Curran
          Fromhold Correctional Facility (“CFCF”), 7901 State


                                  -4-
J. S63006/16


             Road, Philadelphia, and was housed in [appellant]’s
             cellblock. A search of Terrell Bowens’ cell by prison
             personnel led to the recovery of, inter alia,
             correspondence addressed to “Rel-Rel,” while a
             search of [appellant]’s cell led to the recovery of,
             inter alia, Dyches’ photograph.

                   On August 10, 2007, [appellant] received and
             waived Miranda warnings and gave a third
             statement, in which he admitted that he had given
             Dyches’ photograph to “people on my block, to know
             who is snitching” and that he had “a guy…in the Law
             Library” make the superimposed photocopy of
             Dyches’ photograph and statement.

Commonwealth v. Ford, No. 1686 EDA 2009, unpublished memorandum

at 2-5, quoting trial court opinion, 9/16/09 at 2-6 (citations and footnote

omitted).

        The PCRA court set forth the following procedural history:

                    On February 10, 2009, after a capital jury trial
             before this Court, [appellant] was convicted of
             [first-degree murder, possessing an instrument of
             crime (“PIC”), attempted murder, two counts of
             aggravated     assault,    two   counts   of  witness
             intimidation, solicitation – murder, and conspiracy –
             murder[2]. On February 17, 2009, after the penalty
             hearing and an adequate period of deliberation, the
             jury was discharged as it could not reach a
             unanimous verdict on the existence of aggravating
             circumstances, which would have been the basis for
             a sentence of death. On April 24, 2009, this Court
             sentenced [appellant] to consecutive terms of
             incarceration as follows:      Life Imprisonment for
             Murder; two-and one-half to five (2½-5) years for
             PIC; twenty to forty (20-40) years for Attempted
             Murder; ten to twenty (10-20) years for one count of
             Aggravated Assault; ten to twenty years (10-20) on
             each of the two counts of Intimidation; ten to twenty

2
    18 Pa.C.S.A. §§ 2502, 907, 901, 2702, 4952, 902, and 903, respectively.


                                      -5-
J. S63006/16


           (10-20) years for Solicitation; ten to twenty (10-20)
           years for Conspiracy; and no further penalty for the
           second Aggravated Assault count, as it merged with
           Attempted Murder.       [Appellant’s] May 4, 2009
           Post-Sentence Motion was denied on May 14, 2009.

                  On June 9, 2009, Appellant appealed to the
           Superior Court of Pennsylvania. On October 26,
           2010, the Superior Court affirmed Appellant’s
           judgment of sentence.        On May 3, 2011, the
           Supreme Court of Pennsylvania denied Appellant’s
           Petition for Allowance of Appeal.

                  On November 1, 2011, Appellant, pro se,
           timely filed the instant PCRA Petition as it was filed
           well within one year of when his conviction became
           final. 42 [Pa.C.S.A. § 9545(b)]. On June 23, 2014,
           court-appointed counsel filed an amended petition on
           Appellant’s behalf.     On January 20, 2015, the
           Commonwealth filed a motion to dismiss Appellant’s
           Amended PCRA Petition. On May 18, 2015, after
           reviewing Appellant’s Amended PCRA Petition and
           the Commonwealth’s Motion to Dismiss, the Court
           issued a Notice of Intent to Dismiss pursuant to
           Pa.R.Crim.P. 907 finding that all of the claims raised
           by Appellant were previously litigated, waived, or
           without merit. On June 24, 2015, Appellant, pro se,
           filed a supplemental PCRA petition, which the Court
           did not consider pursuant to judicial policy barring
           hybrid representation because Appellant is being
           represented by counsel. On July 20, 2015, the Court
           formally dismissed Appellant’s Amended PCRA
           Petition.

                 On July 29, 2015, Appellant timely filed the
           instant appeal to the Superior Court. On July 29,
           2015, the Court ordered Appellant to file a concise
           statement of matters complained of on appeal
           pursuant to Pa.R.A.P. 1925(b) []. Appellant timely
           complied and filed his 1925(b) Statement on
           August 19, 2015. . . .

PCRA court opinion, 10/14/15 at 1-3 (footnotes omitted).



                                   -6-
J. S63006/16


     Appellant raises the following issues for our review:

           A.    Whether The Appellant claims that trial counsel
                 was ineffective for failing to challenge that his
                 statement to the police was involuntary where
                 he was illegally held in custody over six hours
                 in violation of his 14th and 5th amendment
                 rights. All previous counsel were ineffective for
                 failing to raise this issue?

           B.    Whether The Appellant claims that trial counsel
                 was ineffective for failing to challenge that he
                 was deprived of counsel during critical stages
                 in his case- when he gave a statement, during
                 and after his transport from Atlanta to
                 Philadelphia?

           C.    Whether The Appellant claims that trial counsel
                 was ineffective in failing to fully investigate his
                 claim of self-defense or imperfect self-defense?

           D.    [Whether] The Appellant claims that trial
                 counsel was ineffective in failing to retain a
                 mental     health    expert    to    determine
                 [appellant’s] state of mind at the time the
                 crime was committed?

           E.    Whether Trial counsel was ineffective for failing
                 to present the testimony of [appellant] who
                 could have presented a defense to the matter?

           F.    Whether Trial counsel was ineffective in that
                 trial counsel did not properly argue a
                 suppression motion which was based on the
                 illegal search and seizure of a letter that was
                 taken from his prison cell?

           G.    Whether Trial counsel was ineffective for failing
                 to investigate and challenge the second
                 statement Appellant gave to police, which was
                 the product of extreme duress?

           H.    Whether Trial and appellate counsel were
                 ineffective for failing to challenge portions of


                                    -7-
J. S63006/16


                   the closing argument which referred to
                   [appellant] as an “executioner[”] and a “cold
                   and calculating person” and commented on the
                   credibility of the witnesses which was so
                   prejudicial as to deprive [appellant] of a fair
                   trial?

             I.    Whether Trial and appellate counsel were
                   ineffective for failing to request a limiting
                   instruction regarding the references to other
                   crimes evidence that was introduced at trial?

             J.    Whether rial [sic] and appellate counsel were
                   ineffective for failing to challenge that the 72.5
                   to 145 year sentence that was imposed
                   consecutively to the life sentence was an abuse
                   of discretion?

Appellant’s brief at 6.

      We limit our review of a PCRA court’s decision to examining whether

the record supports the PCRA court’s findings of fact and whether its

conclusions of law are free from legal error.     Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s

findings and the evidence of record in a light most favorable to the prevailing

party. Id.

      To be entitled to PCRA relief, the defendant bears the burden of

establishing, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so

undermined the truth-determining process that no reliable adjudication of




                                      -8-
J. S63006/16


guilt or innocence could have taken place.”       42 Pa.C.S.A. § 9543(a)(2)(i)

and (ii); see also Mason, 130 A.3d at 618 (citations omitted).

      Here, appellant’s claims assert that his trial and/or direct-appeal

counsel provided ineffective assistance.

            Counsel is presumed effective, and in order to
            overcome that presumption a PCRA petitioner must
            plead and prove that: (1) the legal claim underlying
            the ineffectiveness claim has arguable merit;
            (2) counsel’s action or        inaction   lacked any
            reasonable basis designed to effectuate petitioner’s
            interest; and (3) counsel’s action or inaction resulted
            in prejudice to petitioner. With regard to reasonable
            basis, the PCRA court does not question whether
            there were other more logical courses of action
            which counsel could have pursued; rather, [the
            court] must examine whether counsel’s decisions
            had any reasonable basis.          Where matters of
            strategy and tactics are concerned, [a] finding that a
            chosen strategy lacked a reasonable basis is not
            warranted unless it can be concluded that an
            alternative not chosen offered a potential for success
            substantially greater than the course actually
            pursued.    To demonstrate prejudice, a petitioner
            must show that there is a reasonable probability
            that, but for counsel’s actions or inactions, the result
            of the proceeding would have been different. Failure
            to establish any prong of the [] test will defeat an
            ineffectiveness claim.

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

      Appellant first complains that “trial counsel was ineffective for failing to

challenge that his [second] statement to the police was involuntary where he

was illegally held in custody over six hours in violation of his 14 th and

5th amendment rights.”     (Appellant’s brief at 11.)     In support, appellant

relies on Commonwealth v. Davenport, 370 A.2d 301 (Pa. 1977).


                                      -9-
J. S63006/16


Davenport, however, has since been overruled by Commonwealth v.

Perez, 845 A.2d 779 (Pa. 2004), wherein our supreme court held that

“voluntary statements by an accused, given more than six hours after arrest

when the accused has not been arraigned, are no longer inadmissible

per se. Rather, . . . regardless of the time of their making, courts must

consider the totality of the circumstances surrounding the confession.”

Perez, 845 A.2d at 787 (footnote omitted); see also Commonwealth v.

Housman, 986 A.2d 822 (Pa. 2009). In his brief, appellant subsequently

concedes that Davenport “has been so altered over its history that it is

certainly not a bright line rule,” but “argues that the time that passed and

the conditions under which [appellant] was held deprived him of his basic

rights and his statement should have been suppressed.” (Appellant’s brief

at 14.)     Therefore, the gravamen of appellant’s first complaint is that his

second confession was not voluntary due to the conditions of his transport

from Atlanta to Philadelphia and the circumstances of that confession.

      Contrary to appellant’s claim, the record reflects that trial counsel

raised the issue of the voluntariness of both of appellant’s confessions prior

to trial.     (Motion to suppress identification, physical evidence, and/or

statement, 1/13/09; Docket #4.)           Moreover, the claim was raised,

addressed, and rejected on direct appeal.        There, appellant contended,

among other things, that his transfer from Atlanta to Philadelphia “drained

him of the ability to withstand suggestion and coercion.”     Ford, No. 1686



                                     - 10 -
J. S63006/16


EDA 2009 at 9. Based on the record, this court was unable to conclude that

the suppression court abused its discretion in finding that driving from

Atlanta to Philadelphia and then being interviewed was physically or

psychologically detrimental to appellant so as to require suppression of the

confession appellant made in Philadelphia. Id. at 10. Therefore, not only

does the record belie appellant’s claim that trial counsel failed to challenge

the voluntariness of his second confession, but on direct appeal, this court

deemed the claim meritless.      Consequently, appellant’s claim amounts to

nothing more than an attempt to again challenge the voluntariness of his

confession and it must fail.

      Appellant next complains that “trial counsel was ineffective for failing

to challenge that he was deprived of counsel during critical stages in his

case- when he gave a statement, during and after his transport from Atlanta

to Philadelphia.” (Appellant’s brief at 15.)

      Once again, the record belies appellant’s contention.        The record

reflects that in appellant’s suppression motion, trial counsel raised the issue

of appellant being “questioned by the police without his consent or without

waiving his rights” and also claimed that appellant “was not read his

Miranda rights prior to the questioning.” (Motion to suppress identification,

physical evidence, and/or statement, 1/13/09; Docket #4.) The issue was

also raised, addressed, and rejected on direct appeal.       There, this court

noted that the suppression court found the testimony of Detective William



                                     - 11 -
J. S63006/16


Sierra credible. Ford, No. 1686 EDA 2009 at 9. Moreover, this court found

that the record demonstrated that Detective Sierra read appellant his

Miranda rights and then asked and typed appellant’s answers to seven

questions pertaining to those rights.   Id. at 10, citing notes of testimony,

1/27/09 at 23.    Appellant was then given the typed pages containing his

answers to the Miranda questions to review. Id., citing notes of testimony,

1/27/09 at 25.    Appellant initialed each question, signed each page, and

agreed to an interview.     Id., citing notes of testimony, 1/27/09 at 25.

Therefore, not only does the record belie appellant’s contention that trial

counsel failed to challenge appellant’s claimed deprivation of counsel in

violation of his Miranda rights, but on direct appeal, this court found no

abuse of discretion in the suppression court’s denial of appellant’s motion to

suppress because, among other things, the record supported the conclusion

that appellant was properly Mirandized before he voluntarily confessed.

Therefore, appellant’s claim amounts to nothing more than an attempt to

once again challenge the admissibility of his confession and it must fail.

      Appellant next complains that “trial counsel was ineffective in failing to

fully investigate his claim of self-defense or imperfect self-defense.”

(Appellant’s brief at 18.) Appellant’s argument on this issue is that:

            [t]rial counsel failed to properly investigate and
            present evidence that after being robbed by the
            decedent and his girlfriend, [appellant] did in fact
            arm himself. Upon returning to gather his personal
            belonging [sic] scattered on the ground. [sic]
            [Appellant] observed the decedent and his girlfriend


                                     - 12 -
J. S63006/16


            crossing the street, fearing for his life and being
            accosted again [appellant] withdrew his weapon and
            crossed to the opposite side of the street in an effort
            to avoid any form of confrontation. At which point
            the decedent and his girlfriend crossed the street
            again. Not knowing or being able to discern the
            motive they had, [appellant] panicked and opened
            fired [sic] upon them. [Appellant] maintains that he
            believed that he acted with legal justification when
            he discharged the firearm and counsel was
            ineffective for failing to explore this defense.

Id. at 19-20. Once again, the record belies appellant’s claim. The record

reflects that trial counsel pursued the theory of self-defense or imperfect

self-defense by first introducing the theory in his opening statement, as

follows:

            [DEFENSE COUNSEL]: I submit to you that the
            evidence will show that [appellant] is coming down
            the street, he believes that Mr. Wright is pulling a
            weapon on him. He reacts, and fires his weapon.
            He didn’t mean to kill anybody. He thought that his
            life was in jeopardy. He was protecting himself.

Notes of testimony, 1/28/09 at 92. Trial counsel also cross-examined police

investigator Brett Zimbrick regarding a statement appellant made to police

that   indicated appellant acted    in   self-defense, with   the     investigator

confirming that appellant stated that appellant believed Wright was about to

pull a gun on him.      (Notes of testimony, 1/29/09 at 48.)           Moreover,

appellant’s February 20, 2007 confession was read into the record. In that

confession, appellant claimed that he shot Wright because Wright pulled a

gun out on him. (Notes of testimony, 2/3/09 at 73-75.) Additionally, trial

counsel cross-examined the medical expert with respect to appellant’s


                                    - 13 -
J. S63006/16


self-defense theory.      (Notes of testimony, 2/2/09 at 66-68.)         The record

further reflects that the trial court charged the jury on self-defense. (Notes

of testimony, 2/6/09 at 92-94.)

      Moreover, on direct appeal, appellant contended, among other things,

that the evidence was insufficient to sustain his first-degree murder

conviction because it established that he acted in self-defense.             Ford,

No. 1686 EDA 2009 at 15 & 18.          After reviewing the record, this court

concluded    that   the    Commonwealth        disproved   appellant’s   claim   on

self-defense beyond a reasonable doubt.         Id. at 19. Therefore, this claim

must fail.

      Appellant next complains that “trial counsel was ineffective in failing to

retain a mental health expert to determine [appellant’s] state of mind at the

time the crime was committed.” (Appellant’s brief at 21.)

      Here, after recitation of rules of law, appellant sets forth the following

three-sentence argument to support this contention:

             [Appellant] argues that if the original jury had been
             presented with evidence of his mental health, drug
             usage, and diminished intellectual capacity, there is
             a reasonable probability that the jury would have
             determined that he lacked the ability to formulate a
             specific intent to kill. Trial counsel made no effort to
             investigate the mental state of [appellant]. Given
             the seriousness of the charges–first degree murder,
             it fell below the standard of effectiveness not [sic]
             have the [appellant] evaluated and he should be
             granted a new trial.




                                      - 14 -
J. S63006/16


Appellant’s brief at 21-22.     The record, however, reflects that appellant’s

defense strategy at trial was self-defense.      Trial counsel cannot be found

ineffective for failing to present the inconsistent defense of inability to form

specific intent. Therefore, this claim must fail.

      Appellant next claims that “[t]rial counsel was ineffective for failing to

present the testimony of [appellant] who could have presented a defense to

the matter.”      (Appellant’s brief at 23.)    Once again, the record belies

appellant’s contention.     The record reflects that appellant exercised his

constitutional right to remain silent and not present evidence on his behalf,

as follows:

              THE COURT: Now, do you understand that you do
              have a right, under the Constitution of the United
              States of America, as well as the Constitution of the
              Commonwealth       of    Pennsylvania,  to   present
              evidence, and to testify on your own behalf?

                    Do you understand that?

              [APPELLANT]: Yes, Sir.

              THE COURT: You also have the right not to do that.

                    Do you understand that, also?

              [APPELLANT]: Yes.

              THE COURT: I have been informed by your attorney,
              both of them, that it is your decision that you will not
              present testimony, and you will not present
              evidence, and it is your desire at trial to remain
              silent; is that correct?

              [APPELLANT]: Yes, Sir.



                                       - 15 -
J. S63006/16


              ....

              THE COURT: Do you thoroughly understand the
              decision that you are making right now?

              [APPELLANT]: Yes.

              THE COURT: Is it your desire not to testify on your
              own behalf?

              [APPELLANT]: Yes.

              THE COURT:      Is it your desire not to present
              evidence on your behalf?

              [APPELLANT]: It is.

Notes of testimony, 2/4/09 at 179 & 181. Therefore, this claim necessarily

fails.

         Appellant next complains that “[t]rial counsel was ineffective in that

trial counsel did not properly argue a suppression motion which was based

on the illegal search and seizure of a letter that was taken from [appellant’s]

prison cell.” (Appellant’s brief at 25.) On this issue, appellant presents the

following four-sentence argument:

                     The letter was taken and [appellant] was
              questioned about it even though [appellant] was
              represented by counsel at the time there is is [sic] a
              possibility that due to trial counsel’s actions or
              inactions to prevent this evidence from being
              admitted, the outcome may have been different.
              The correctional officer acted as an agent for the
              Philadelphia Police Department when the evidence
              was taken from [appellant’s] prison cell.        Trial
              counsel was ineffective for failing to protect
              [appellant’s] 4th and 14th Amendment rights when he
              conceded that the search of the prison cell was legal.



                                      - 16 -
J. S63006/16


               It violated the prison policy and also violated the
               laws regarding search and seizure.

Appellant’s brief at 25.

      The gravamen of appellant’s complaint is his dissatisfaction with the

trial court’s ruling on his suppression motion regarding the constitutionality

of the search of his prison cell.      This issue was raised, reviewed, and

rejected on direct appeal wherein this court found no violation of appellant’s

constitutional rights. Ford, No. 1686 EDA 2009 at 10-12. Therefore, this

claim fails.

      Appellant next complains that “[t]rial counsel was ineffective for failing

to investigate and challenge the second statement [appellant] gave to

police, which was the product of extreme duress.” (Appellant’s brief at 26.)

Once again, appellant complains about the conditions of his transport from

Atlanta to Philadelphia in an attempt to demonstrate the involuntariness of

his second confession.      This claim does nothing more than reiterate the

arguments advanced in appellant’s first issue on appeal, which were

unsupported by the record and raised, reviewed, and rejected on direct

appeal. Therefore, this claim must fail.

      Appellant next complains that “[t]rial and appellate counsel were

ineffective for failing to challenge portions of the closing argument which

referred to [appellant] as an ‘executioner’ and a ‘cold and calculating person’

and commented on the credibility of the witnesses which was so prejudicial

as to deprive [appellant] of a fair trial.”   (Appellant’s brief at 27.)   Once


                                     - 17 -
J. S63006/16


again, the record belies appellant’s contention. The record reflects that trial

counsel     placed      numerous      objections     on    the    record      during     the

Commonwealth’s closing argument and that trial counsel also moved for a

mistrial.    (Notes of testimony, 2/5/09 at 131-222.)              Moreover, on direct

appeal,     appellant    challenged    the    Commonwealth’s        closing    argument,

claiming that the prosecutor engaged in repeated and blatant misconduct for

alleged instances of discussing facts not in evidence, asking the jury to place

themselves in the victim’s shoes, introducing facts not pertaining to the

case, injecting personal opinions, using a faith-based argument, and

revealing that a witness was in protective custody.               Ford, No. 1686 EDA

2009 at 23-24.       On review, this court agreed with the trial court that the

statements, considered as a whole, did not prejudice the jury in such a

manner that it could not weigh the evidence and render a true verdict. Id.

at   24.     Moreover,      this   court   noted    that   even    assuming     that     the

Commonwealth’s closing remarks were sufficiently prejudicial, “[i]n light of

the overwhelming evidence of guilt presented against [appellant], we would

not reverse and remand the case for a new trial because of those remarks.”

Id. at 24-25. Therefore, this claim fails.

      Appellant next complains that “[t]rial and appellate counsel were

ineffective for failing to request a limiting instruction regarding the

references     to   other   crimes    evidence      that   was    introduced    at     trial.”

(Appellant’s brief at 29.) Appellant then contends that:



                                           - 18 -
J. S63006/16


            [t]he Commonwealth’s witness Detective Zimbrick
            testified that [appellant] provided a statement in
            which he alleged he was en route to sale [sic] drugs
            when the victim was shot.         There was a clear
            insinuation that [appellant] was involved in drug
            dealing activity and the jury could have inferred that
            [appellant] was engaged in drug activity.

Id.

      The gravamen of appellant’s complaint again goes to the voluntariness

of appellant’s confession. As discussed in appellant’s first claim of error, this

issue was raised, reviewed, and rejected on direct appeal, and appellant’s

statements were admissible.         Therefore, counsel cannot be deemed

ineffective for failing to request a limiting instruction for the statements

appellant made in his voluntary confession which were subsequently

admitted into evidence and used against him. Therefore, this claim fails.

      Appellant finally argues that “[t]rial and appellate counsel were

ineffective for failing to challenge that the 72.5 to 145-year sentence that

was imposed consecutively to the life sentence was an abuse of discretion.”

(Appellant’s brief at 31.) Following a recitation of inapplicable law, appellant

sets forth the following three-sentence argument:

            In the instant matter, [appellant] was already
            sentenced to a sentence of life without parole. The
            court did not place the appropriate reasons on the
            record and used [appellant’s] prior criminal history
            which had already been included in his sentencing
            guidelines to enhance his sentence. The court could
            have imposed a concurrent period of incarceration
            which would have been sufficient.

Appellant’s brief at 31.


                                     - 19 -
J. S63006/16


     Appellant waives this claim because he fails to cite to any authority

that supports his position and he fails to fully develop any meaningful

argument concerning this claim.   See Commonwealth v. Rompilla, 983

A.2d 1207, 1210 (Pa. 2009); Commonwealth v. Brougher, 978 A.2d 373

(Pa.Super. 2009) (claim is waived if there is no citation to authority);

Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998) (petitioner

waives undeveloped and/or unclear claims). Moreover, the argument that a

concurrent and not a consecutive sentence should have been given would

not have presented a substantial question on appeal.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/6/2016




                                   - 20 -
