J-S21023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

HASSAN WILLIAMS

                            Appellant                     No. 2029 EDA 2014


                    Appeal from the PCRA Order July 11, 2014
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010937-2007


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                                  FILED MAY 27, 2015

        Hassan Williams (“Appellant”) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

        The facts of Appellant’s underlying convictions are briefly stated: On

June 25, 2007, Appellant and a co-defendant robbed Layee Bility (“Victim”)

at gunpoint outside a Chinese take-out restaurant in Philadelphia.         During

the robbery, when Victim attempted to disarm Appellant’s co-defendant,

Appellant shot Victim three times in the back.             Appellant and his co-

defendant fled before police arrived.          Despite being rushed to a hospital,

Victim passed away from his wounds soon after. The owner of the Chinese

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S21023-15



take-out restaurant identified Appellant from video surveillance as a frequent

patron who lived in the neighborhood, and the police apprehended Appellant

the next day.

        The PCRA court summarized the relevant procedural history as follows:

              On December 5, 2008, following a jury trial before the
        Honorable Carolyn Engel Temin, [Appellant] was found guilty of
        murder in the first degree, robbery, possession of an instrument
        of crime, and criminal conspiracy.[1]

               On February 23, 2009, [Appellant] was sentenced to a
        term of life imprisonment on the murder conviction, a concurrent
        term of seven and one-half (7½) [to fourteen (14)] years of
        imprisonment on the robbery conviction, and a consecutive term
        of ten (10) to twenty (20) years of imprisonment on the criminal
        conspiracy conviction. No further penalty was imposed on the
        conviction of possession of an instrument of crime.        Post-
        sentence motions were not filed. A timely notice of appeal was
        filed.   On April 1, 2011, the Superior Court affirmed the
        judgment of sentence. A petition for allowance of appeal to the
        Pennsylvania Supreme Court was denied on August 30, 2011.

              On January 20, 2012, [Appellant] filed a pro se petition
        under the [PCRA]. Sondra Rodriguez, Esquire[,] was appointed
        to represent [Appellant].      On March 19, 2013, Teri B.
        Himebaugh, Esquire[,] entered her appearance on behalf of
        [Appellant]. Pursuant to the [PCRA], Attorney Himebaugh filed
        an Amended Petition alleging violations of rights protected by
        the Constitution of this Commonwealth and the laws and
        Constitution of the United States and that prior counsel was
        ineffective for failing to (1) file a post-sentence motion
        challenging the weight of the evidence; (2) request leave of the
        court to file an amended 1925(b) statement; (3) properly litigate
        a motion to suppress; (4) request a curative instruction; (5)
        properly “federalize” all the claims on direct appeal; and (6)
        object to a substitute judge charging the jury. [Appellant] also
        claims that the imposition of a sentence of life in prison without
____________________________________________


1
    18 Pa.C.S. §§ 2502(a), 3701(a)(1), 907(a), 903(a), respectively.



                                           -2-
J-S21023-15


       the possibility of parole for an individual under the age of 25 is
       unconstitutional. After conducting a review of the record, this
       court dismissed [Appellant’s] motion on July 11, 2014.1
       [Appellant] filed a timely Notice of Appeal.
          1
             The dismissal occurred more than twenty days after
          [Appellant] was served with notice of the forthcoming
          dismissal of his PCRA petition. Pa. R. Crim. P. 907.

PCRA Court Pa.R.A.P. 1925(a) Opinion, September 19, 2014 (“1925(a)

Opinion”), pp. 1-2.       The PCRA court filed its Pa.R.A.P. 1925 Opinion on

September 19, 2014.2

       Appellant raises the following claims for our review:

       I. Was [t]rial/appellant counsel constitutionally ineffective under
       the Sixth Amendment for failing to object to a judge who was
       unfamiliar with the case charging the jury resulting in a
       confusing, misleading and inaccurate charge?

       II. Was [t]rial counsel constitutionally ineffective under the
       Sixth Amendment for failing to ensure that the jury was given a
       complete curative instruction after the Commonwealth elicited
       testimony from Irene Walker that she didn’t cooperate/speak
       with investigators?

       III. Was Appellant denied his rights under Article 1 § 9 [of] the
       Constitution of the Commonwealth of Pennsylvania and the Sixth
       Amendment to the Constitution of the United States of America
       to effective assistance of counsel for failing to include all
       potential basis [sic] for suppression in his Motion to Suppress
       and for failing to allege on direct appeal that the trial court
       abused its’ [sic] discretion in denying Appellant’s Motion to
       Suppress?

       IV. Was Appellant denied his rights under Article 1 § 9 [of] the
       Constitution of the Commonwealth of Pennsylvania and the Sixth
       Amendment to the Constitution of the United States of America
____________________________________________


2
  The PCRA court did not order Appellant to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).



                                           -3-
J-S21023-15


      to effective assistance of counsel when trial/appellate counsel
      failed to timely file a post sentence motion challenge to the
      weight of the evidence thereby waiving this claim?

      V. Was Appellate counsel constitutionally ineffective under the
      Sixth Amendment for failing to properly ‘federalize’ all the claims
      on direct appeal?

      VI. Was Appellant denied his rights under Article 1 § 9 [of] the
      Constitution of the Commonwealth of Pennsylvania and the Sixth
      Amendment to the Constitution of the United States of America
      to effective assistance of counsel when trial/appellate counsel
      failed to make application for or receive leave of court to file an
      Amended Pa.R.[A].P. 1925(b) Statement thereby waiving
      otherwise meritorious claims?

      VII. Were Appellant’s rights under the Eight Amendment, Art. 5
      of the Universal Declaration of Human Rights and Ar. [sic] 1 sec.
      13 of the PA Constitution violated by the [c]ourt’s imposition of
      [m]andatory [l]ife [imprisonment] without the [p]ossibility of
      [p]arole for Appellant who is an individual over 17 but under the
      age of 25?

Appellant’s Brief, pp. 3-4.

      In reviewing an order denying PCRA relief, our well-settled standard of

review is “to determine whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Steven R.

Geroff, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively     discusses   and   properly   disposes   of   the   questions



                                      -4-
J-S21023-15



presented.   See 1925(a) Opinion, pp. 5-13 (finding: (1) trial counsel not

ineffective for failing to object to judge other than trial judge charging jury

where trial judge herself did, in fact, adequately and properly charge jury;

(2) trial counsel not ineffective regarding curative instructions where trial

court gave two curative instructions during Irene Walker’s testimony, both

explaining that Appellant’s mother was under no obligation to speak with

police; third curative instruction would not have affected outcome of trial;

(3) trial counsel not ineffective for failing to include all potential bases for

suppression in motion to suppress where, under applicable totality of the

circumstances    test,   six   hour   delay   between   Appellant’s   arrest   and

arraignment did not violate his rights under either United States or

Pennsylvania Constitutions; (4) trial counsel not ineffective for failing to file

post-sentence weight of the evidence claim where Appellant failed to plead

and prove prejudice resulted from counsel’s failure to do so because weight

of the evidence claim lacked merit where verdict was not so contrary to

evidence as to shock the conscience; (5) trial counsel not ineffective for

failing to “federalize” claims because federal courts’ possible future rulings

are not proper grounds for PCRA relief; (6) trial counsel not ineffective for

failing to amend Pa.R.A.P. 1925(b) statement where, although trial court

determined proposed amended Pa.R.A.P. 1925(b) statement was untimely,

in its Pa.R.A.P. 1925(a) opinion trial court addressed the amended Pa.R.A.P.

1925(b) statement’s three additional issues, as did Superior Court on direct

appeal; and (7) trial court did not impose illegal sentence because Miller v.

                                       -5-
J-S21023-15



Alabama3 does not apply to defendants between the ages of 18 and 25).

Accordingly, we affirm on the basis of the trial court’s opinion.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




____________________________________________


3
    __ U.S. __, 132 S.Ct. 2455 (2012).



                                           -6-
                                                                             Circulated 05/01/2015 02:23 PM




                         IN THE COURT OF COMMON PLEAS
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                        TRIAL DIVISION - CRIMINAL SECTION


COMMONWEALTH             OF                               CP-51-CR-0010937-2007
PENNSYLVANIA


       vs.

                                                         SUPERIOR COURT
HASSAN WILLIAMS                                          NO. 2029 EDA 2014

             FILED
            SEP. 1 fill 2014             OPINION
        Criminal Appeals Unit·
      First Judicial District of PA
GEROFF,J.                                                SEPTEMBER 19, 2014


       Teri B. Himebaugh, Esquire, on behalf of the Petitioner, has filed an appeal of this

court's order denying his petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§9541 et seq.



I. PROCEDURAL HISTORY

       On December 5, 2008, following a jury trial before the Honorable Carolyn Engel Temin,

the Petitioner was found guilty of murder in the first degree, robbery, possession of an

instrument of crime, and criminal conspiracy.

       On February 23, 2009, Petitioner was sentenced to a term of life imprisonment on the

murder conviction, a concurrent term of seven and one-half (7Yi) years of imprisonment on the

robbery conviction, and a consecutive term of ten (10) to twenty (20) years of imprisonment on

the criminal conspiracy conviction.    No further penalty was imposed on the conviction of
                                                                                             Circulated 05/01/2015 02:23 PM




possession of an instrument of crime. Post-sentence motions were not filed. A timely notice of

appeal was filed. On April 1, 2011, the Superior Court affirmed the judgment of sentence. A

petition for allowance of appeal to the Pennsylvania Supreme Court was denied on August 30,

2011.

        On January 27, 2012, Petitioner filed a prose petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §9541 et seq. Sondra Rodriguez, Esquire was appointed to represent

Petitioner. On March 19, 2013, Teri B. Himebaugh, Esquire entered her appearance on behalf of

Petitioner.   Pursuant to the Post Conviction Relief Act. 42 Pa. C.S. § 9541 et seq., Attorney

Himebaugh filed an Amended Petition alleging violations of rights protected by the Constitution

of this Commonwealth and the laws and Constitution of the United States and that prior counsel

was ineffective for failing to ( 1) file a post-sentence motion challenging the weight of the

evidence; ·(2) request leave of the court to file an amended 1925(b) statement; (3) properly

litigate a motion to suppress; ( 4) request a curative instruction; (5) properly "federalize" all the

claims on direct appeal; and (6) object to a substitute judge charging the jury.                  Petitioner also

claims that the imposition of a sentence of life in prison without the possibility of parole for an

individual under the age of 25 is unconstitutional.           After conducting a review of the record, this

court dismissed Petitioner's       motion on July 11, 2014.1            Petitioner filed a timely Notice of

Appeal.




II. STANDARD OF REVIEW

          In determining whether counsel rendered ineffective assistance, the court must use a

three-pronged test. First, the court must ascertain whether the issue underlying the claim has

          I
           The dismissal occurred more than twenty days after Petitioner was served with notice of the
forthcoming dismissal of his PCRA petition. Pa. R. Crim. P. 907.


                                                         2
I•
                                                                                        Circulated 05/01/2015 02:23 PM




     arguable merit. This requirement is based upon the principle that counsel will not be found

     ineffective for failing to pursue a frivolous claim or strategy. Second, if the petitioner's claim

     does have arguable merit, the court must determine whether the course chosen by counsel had

     some reasonable basis designed to serve the best interest of the petitioner. Finally, if a review of

     the record reveals that counsel was ineffective, the court must determine whether the petitioner

     has demonstrated that counsel's ineffectiveness worked to his prejudice.          Commonwealth v.

 Breisch, 719 A.2d 352 (Fa. Super. 1998); Commonwealth v. Pendola, 416 Pa. Super. 568, 611

     A.2d 761 (1992), appeal denied, 629 A.2d 1378 (Pa. 1993). Failure to satisfy any prong of the

 test for ineffectiveness will require rejection of the claim. Commonwealth v. Hudson, 820 A.2d

     720, 726 (Pa. Super. 2003).

             In order to establish prejudice, a petitioner must show that counsel's ineffectiveness was

     of such magnitude that the verdict essentially would have been different absent the ineffective

     assistance.   Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300, 1308 (1994).                See also

     Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

             In the context of a PCRA claim, petitioner must not only establish ineffective assistance

     of counsel, he must also plead and prove that counsel's stewardship so undermined the truth-

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

 See 42 Pa.C.S.A. §9543 (a)(2)(ii); Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995);

     Commonwealth v. Rowe, 411 Pa. Super. 363, 601 A.2d 833 (1992).

             Counsel is never ineffective for failing to make a frivolous objection or motion.

     Commonwealth v. Groff, 356 Pa. Super. 477, 514 A.2d 1382, 1386 (1986), appeal denied, 531

     A.2d 428 (Pa. 1987); Commonwealth v. Davis, 313 Pa. Super. 3 5 5, 459 A.2d 1267, 12 71 (1983 ).

     Similarly, counsel is never ineffective for failing to raise a frivolous issue in post-verdict motions



                                                       3
                                                                                         Circulated 05/01/2015 02:23 PM




    or on appeal.     Commonwealth      v. Thuy, 424 Pa. Super. 482, 623 A.2d 327, 355 (1993);
)
    Commonwea1th·v. Tanner, 410 Pa. Super. 398, 600 A.2d 201, 206 (1991).

           The law presumes that trial counsel was effective.         Commonwealth v. Quier, 366 Pa.

    Super. 275, 531 A.2d 8, 9 (1987); Commonwealth v. Norris, 305 Pa. Super. 206, 451 A.2d 494,

    496 (1982).     Therefore, when a claim of ineffective assistance of counsel is made, it is the

    petitioner's burden to prove such ineffectiveness; that burden does not shift. Commonwealth v.

    Cross, 535 Pa. 38, 634 A.2d 173, 175 (1993), cert. denied, 115 S.Ct. 109, 130 L.Ed.2d 56 (Pa.

    1994); Commonwealth         v. Marchesano,      519 Pa. 1, 544 A.2d          1333,   1335-36 (1988);

    Commonwealth v. Tavares, 382 Pa. Super. 317, 555 A.2d 199, 210 (1989), appeal denied, 571

    A.2d 3 82 (Pa. 1989).




    III. DISCUSSION

           Petitioner alleges a plethora of issues regarding the ineffectiveness of trial counsel and

    direct appeal counsel.   In addition, he claims that the imposition of a sentence of life in prison

    without the possibility of parole for an individual under the age of 25 is unconstitutional.

           In the context of a PCRA claim, a petitioner must not only establish ineffective assistance

    of counsel, he must also show that the deficient performance prejudiced the defense. Petitioner

    is required to prove that counsel's errors were so serious as to deprive the petitioner of a fair trial,

    a trial whose result is reliable. Unless a petitioner makes both showings, it cannot be said that the

    conviction resulted from a breakdown in the adversarial process which renders the result

    unreliable. See 42 Pa.C.S.A. §9543 (a)(2)(ii); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d

    973 (Pa. 1987). See also Commonwealth v. Hawkins, 5 86 Pa. 366, 3 76; 894 A.. 2d 716 (Pa.

    2006). In order to determine whether Petitioner has been prejudiced by the quality of counsel's



                                                       4
                                                                                                      Circulated 05/01/2015 02:23 PM




     representation, it is necessary to focus on the overall trial strategy and to view the lawyer's

     performance      in toto.       Commonwealth           v. Buehl, 540 Pa. 493, 658 A.2d                 771 (1995);

     Commonwealth v. Rowe, 411 Pa. Super. 363, 601 A.2d 833 (1992). As shown below, Petitioner

     has not alleged sufficient grounds to support his claim of trial counsel's ineffectiveness.




    Failing to File Post-Sentence Motions

             Petitioner argues that counsel was ineffective for failing to file post-sentence motions to

    preserve     a weight-of-the-evidence          claim.      Petitioner    claims that there         were significant

    inconsistencies in the witness' (Lin Liu) testimony; serious questions regarding the voluntariness

    of his confession; and no rebuttal presented to his alibi testimony.                     According to Petitioner,

    counsel was ineffective for failing to preserve this issue for appellate review.                     This argument

    must fail.

             In Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119 (Pa. 2007), the Pennsylvania

    Supreme Court declared that the failure to file post-sentence motions does not fall within the

    limited ambit of situations where a defendant alleging ineffective assistance of counsel need not

    prove prejudice to obtain relief.2 Id. at 1132. Therefore, in order to obtain relief on a claim

    alleging ineffective assistance of counsel, a litigant must prove that the claim underlying the

    assertion of ineffectiveness has arguable merit, that counsel acted unreasonably, and that as a

    result of counsel's error, prejudice resulted. Id. See Commonwealth v. Daniels, 600 Pa. 1, 963

    A.2d 409, 419 (Pa. 2009); Commonwealth v. Miller, 572 Pa. 623, 819 A.2d 504, 517 (Pa. 2002).


             2
                 In Reaves, the Court identified three situations in which a defendant was excused from having to prove
    prejudice in order to obtain relief on a claim of ineffective assistance of counsel. They are: "(I) when counsel fails
    to file a requested direct appeal; (2) when counsel neglects to file a requested petition for allowance of appeal with
    this Court; and (3) when counsel fails to file a court-ordered Pa.RAP. l 925 (b) Statement of Matters Complained of
    on Appeal and that failure results in the waiver of all direct appeal claims." Reaves, 923 A.2d at 1125 (citations
)   omitted).


                                                               5
                                                                                      Circulated 05/01/2015 02:23 PM




    For an action or inaction by counsel to be considered prejudicial, there must be a reasonable

    probability that the outcome of the proceedings would have been different but for counsel's

    alleged error. Commonwealth        v. Cox, 581 Pa.       107, 863 A.2d 536, 546 (Pa. 2004);

    Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 573-74 (Pa. 2002). All three prongs of

    the above test must be_ satisfied. If a petitioner fails to meet even one prong of the test, his

    conviction will not be reversed on the basis of ineffective assistance of counsel. Commonwealth

    v. Pappas, 2004 PA Super 32, 845 A.2d 829, 844 (Pa. Super. 2004).

           Petitioner first argues that there were significant inconsistencies in the testimony of a

    witness, Lin Liu.   Mr. Liu testified that the decedent came into his restaurant and placed an

    order. While in the kitchen preparing the order, Mr. Liu heard people arguing at the counter. As

    he approached the counter he observed the decedent and two (2) other men, one of whom had a

    large gun. As Mr. Liu turned, he heard gunshots. Mr. Liu called the police and returned to the

    counter where he saw the decedent lying on the floor. After reviewing the restaurant security

    camera, Mr. Liu identified Petitioner; he knew the man with the gun (Petitioner) because he had

    frequented the restaurant almost every other day for the past four or five years. (12/3/08, pp. 18-

    20). Petitioner argued that there were inconsistencies in Mr. Liu's testimony.       However, any

    inconsistencies were vigorously attacked on cross-examination and in closing arguments.

           The second part of Petitioner's argument that counsel was ineffective for failing to file

    post-sentence motions to preserve a weight of the evidence claim, must also fail.         Petitioner

    argues that since no rebuttal evidence was presented contradicting his alibi witness, counsel was

    ineffective for failing to file a post-sentence motion. The weight given to the evidence is wholly

    the province of the finder of fact "who is free to believe all, part, or none of the evidence and to

    determine the credibility of the witnesses." Commonwealth v. Hunzer, 868 A.2d 498, 506-507
}

                                                     6
                                                                                                Circulated 05/01/2015 02:23 PM




 (Pa. Super. 2005). The weight to be accorded conflicting evidence is exclusively for the fact-

 finder, whose findings will not be disturbed on appeal if they are supported by the record.

 Commonwealth v. Zapata, 290 A.2d 114 (Pa. 1972). A claim that the evidence presented at trial

was contradictory and unable to support the verdict requires the grant of a new trial only when

the verdict is so contrary to the evidence as to shock one's sense of justice.               Id.; Commonwealth

v. Saksek, 522 A.2d 70 (Pa. Super. 1987). Here, despite the fact that Petitioner's mother testified

as an alibi witness and the Commonwealth did not present any evidence to rebut her testimony,

the jury simply found Mr. Liu's testimony more credible.

         The third part of Petitioner's argument also fails. As more thoroughly discussed infra,

Judge Temin specifically           found the detective's         testimony     credible    and that all of the

requirements of both the Pennsylvania Constitution and the United States Constitution had been

complied with when Petitioner confessed to this murder. Petitioner gave a statement to police

admitting that he was at the restaurant with Tyreek Brown and that after shooting the decedent,

he and Mr. Brown split the $12.00 the decedent was carrying. Petitioner also told police that he

used a .32 caliber gun to shoot the decedent.'               This claim lacks merit, and counsel cannot be

found ineffective for failing to raise a meritless claim.                 Even assuming that counsel was

ineffective for failing to file a post-sentence motion challenging the weight of the evidence,

Petitioner has failed to prove that he was prejudiced by counsel's                        failure in view of the

overwhelming evidence presented at trial.




        3
            The type of gun used by the killer was not known to police until the ballistics report was received
approximately three months after Petitioner gave his statement. The ballistics report showed that the gun used was a
.32 caliber weapon.


                                                         7
                                                                                     Circulated 05/01/2015 02:23 PM




    Failing to File an Amended 1925(b) Statement
)
            Petitioner argues that counsel was ineffective for failing to seek or receive leave of the

    court to file an amended 1925(b) statement thereby waiving additional issues.            This claim is

    completely without merit.

            Despite finding the amended l 925(b) statement untimely since Petitioner failed to obtain

    an extension of time to file an amended l 925(b) statement, in the interest of judicial economy,

    Judge Temin addressed the three additional issues Petitioner wished to raise in a July 7, 2009

    supplemental opinion.

            Moreover, the Superior Court, in its April 1, 2011 memorandum opinion, specifically

    stated that Petitioner had not waived the claims raised in his June 12, 2009 amended I 925(b)

    statement. See Commonwealth v. Williams, 714 EDA 2009, pp. 10, 12-17 (Pa. Super. April 1,

    2011) which addressed and rejected all the issues raised by Petitioner. Accordingly, trial counsel
)
    was not ineffective.




    Motion to Suppress

           Petitioner argues that counsel was ineffective for failing properly to argue (and appeal)

    the denial of a motion to suppress his statement to police. This claim must also fail.

           Petitioner argues that in addition to all the other issues raised by trial counsel to support

    the motion to suppress his statement to police, counsel should have argued one additional issue:

    the unnecessary delay between Petitioner's arrest and arraignment.     According to Petitioner, he

    was held without being arraigned in excess of 6 hours. He argues that his statement should have

    been suppressed and that counsel was ineffective for not raising this issue at the motion or on




                                                     8
                                                                                                   Circulated 05/01/2015 02:23 PM




    appeal.4

               Contrary to Petitioner's assertion, the Pennsylvania Supreme Court has expressly rejected

    the "six-hour" rule in Commonwealth v. Perez, 845 A2d. 779 (Pa. 2004) and adopted a totality of

    the circumstances test to determine whether voluntary statements by the accused given more than

    six hours after arrest but before arraignment are admissible.

            Here, both Detective          Theodore     Hagan and the Petitioner testified              regarding the

    circumstances surrounding Petitioner's confession. Detective Hagan testified that Petitioner was

    given Miranda warnings, was uncuffed in the interview room, was not threatened or beaten, was

    provided with crackers and a soda, was afforded the opportunity to use the bathroom, and signed

    and initialed the statement.       Petitioner, on the other hand, testified that he was handcuffed the

    entire time and was never given Miranda warnings; that the handwriting on the statement was

    not his; and that he had been beaten, scratched and choked.                  Judge Temin specifically found

    Detective Hagan's        testimony    credible and that there was complete compliance                    with the

    requirements      of both the Pennsylvania           Constitution    and the United         States Constitution.

    Therefore, counsel cannot be ineffective for failing to pursue a baseless claim.


    Curative Instruction

               Petitioner argues that counsel was ineffective for failing to ensure that the trial court gave

    a complete curative instruction following the testimony of Petitioner's mother that she did not

    cooperate with investigators.

            Petitioner argues that counsel was ineffective for failing to ask the court to give an

    additional curative instruction (it would have been the third one) advising the jury that his

            4  Petitioner has submitted no proof that he was held for more than 6 hours without being arraigned (there
    are no documents establishing a chronology of the Petitioner's custody between the time he was brought into the
)   Homicide Unit and when he gave police his confession).


                                                             9
                                                                                   Circulated 05/01/2015 02:23 PM




mother (his alibi witness) was under no obligation to speak to police and that the prosecutor

should not have asked her about any statements to police.

       Twice during the Commonwealth's         examination of Petitioner's mother, Judge Temin

gave a curative instruction to the jury advising them that they were not permitted to draw any

prejudicial inferences from Petitioner's    mother's   refusal to speak with the police, thereby

eliminating any potential negative inference from Petitioner's mother's refusal to speak to police.

Based on the evidence presented at trial, a third curative instruction reiterating that Petitioner's

mother was under no obligation to speak to police would not have changed the outcome.

Petitioner has failed to demonstrate how a third curative instruction prejudiced him in light of the

overwhelming evidence of his guilt and, therefore, this claim must fail. Again, counsel cannot

be found to be ineffective for failing to pursue a baseless claim.


Failure to "Federalize" Claims


       In Petitioner's fifth claim for relief, he argues that counsel was ineffective for failing to

"federalize" all claims raised oi:i direct appeal. According to Petitioner counsel was ineffective

for failing to ensure that those claims could be considered "fairly presented" and "exhausted" to

permit federal review.   This claim must also fail because how a federal court may or may not

decide a future habeas corpus petition is not grounds for relief under the PCRA.


Confusing Jury Charge


       In Petitioner's sixth claim for relief, he argues that counsel was ineffective for "failing to

object to a judge who was unfamiliar with the case charging the jury resulting in a confusing,

misleading and inaccurate charge."



                                                  10
                                                                                   Circulated 05/01/2015 02:23 PM




        On the morning of December 5, 2008, Judge Temin extensively reviewed the jury charge

with both counsel and informed counsel that she had a family matter to attend to at 2:00 p.m. and

that Judge Minehart would be available.      Immediately thereafter Judge Temin charged the jury

and informed them of her family emergency.        She also informed the jury that Judge Minehart

would be available if they had any questions or needed assistance. At 11 :07 a.m., the jury retired

to deliberate. The jury returned with a verdict less than three (3) hours later. Judge Minehart

took the verdict. It is not ineffective assistance of counsel to have another judge take a verdict.

        The second part of his argument claims that counsel was ineffective for failing to object

to the jury instructions: specifically, the instructions regarding (1) conspiracy and accomplice

liability; (2) third degree murder; (3) robbery; (4) conflicting testimony; and (5) the court's use

of slides during the instructions.

        When reviewing a challenge to a jury instruction, an appellate court must review the

charge as a whole.           Commonwealth    v. Spatz,    759 A.2d     1280 (Pa. 2000); see also

Commonwealth      v. Jones, 683 A.2d 1181 (Pa. 1996).          An appellate court will uphold an

instruction if it adequately and accurately reflects the law and is sufficient to guide the jury

through its deliberations.    Id. citing Commonwealth v. Ahlborn, 657 A.2d 518, 520 (Pa. Super.

1995). Error will not be predicated on isolated excerpts. Instead, the general effect of the charge

controls.   Id. citing Commonwealth     v. Zewe, 663 A.2d 195, 201 (Pa. Super. 1995), appeal

denied, 675 A.2d 1248 (Pa. 1996). An erroneous charge warrants the grant of a new trial unless

the reviewing court is convinced beyond reasonable doubt that the error is harmless. Id. Judge

Temin used language very similar to that set forth in the Pennsylvania               Suggested Jury

Instructions, and counsel cannot be found ineffective for failing to make a frivolous objection.




                                                  ll
                                                                                                   Circulated 05/01/2015 02:23 PM




             To determine whether a jury instruction resulted in a violation of Petitioner's due process
)
    rights, the jury instruction may not be judged in artificial isolation, but must be considered in the

    context of the instructions as a whole and the trial record. Estelle v. McGuire, 502 U.S. 62, 72

    (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)), In addition, even if there is a

    flaw in the instruction, the error would not present a due process violation unless it presented

    "actual and substantial disadvantage" to the defendant, thereby "infecting his entire trial with

    errors of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis

    in original). Here, viewed in context of instructions as a whole, there was no violation of

    Petitioner's due process rights. Counsel cannot be found to be ineffective for failing to pursue a

    baseless claim. This claim must fail.



    Life Without Parole

             Petitioner argues that the imposition of a sentence of life in prison without parole was a

    violation of his constitutional rights. According to Petitioner, pursuant to Miller v. Alabama, 132

    S.Ct. 2455, 183 L. Ed. 2d 407 (2o'l2),5 his rights under the Eighth Amendment of the United

    States Constitution and Article I of the Pennsylvania Constitution were violated when Judge

    Temin sentenced him to life without the possibility of parole for the conviction of murder in the

    first degree.

             Here, Petitioner was over 17 years of age (DOB 9-12-87) at the time this murder was

    committed on June 25, 2007 (at the time of the murder, Petitioner was 19 years old). Neither the

    Supreme Court nor the Legislature has extended the criteria considered in Miller to those

             5
               In Miller, the United States Supreme Court ruled that juveniles who commit homicide offenses should not
    automatically  be sentenced to life without parole. They can still be sentenced to life without parole but not until
    considering and make findings on the record regarding certain criteria.



                                                             12
                                                                                                 Circulated 05/01/2015 02:23 PM




)   between the ages of 18 to 25. For Petitioner, no relief is due.


    Cumulative Errors

             Finally, Petitioner argues that he is entitled to relief because of the cumulative effect of

    the above errors.         According to Petitioner, collectively and cumulatively,          these errors denied

    Petitioner his rights to due process of law and his rights under· the Fifth, Sixth, Eighth and

    Fourteenth Amendments            to the United States Constitution and the corresponding provisions of

    the Pennsylvania         Constitution.      Petitioner cannot be prejudiced by non-existent         errors and,

    therefore,    110   relief is due on this issue. No number of failed claims may collectively attain merit

    'if each could not do so individually. Commonwealth             v. Willia1?1s, 615 A.2d 716, 722 (Pa.1992);

    Commonwealth v. Ellis, 700 A.2d 948, 962 116 (Pa. Super. 1997); Commonwealth v. Baez, 554

    Pa. 66 (1998).
)

    IV. CONCLUSION

            Petitioner bas failed to demonstrate any basis forrelief. In the absence of any meritorious

    challenge which can. be found in the rcviewable record, Petitioner has failed to articulate his

    allegations     in accordance        with     the requisites   of a claim     predicated     upon    counsel's

    ineffectiveness.       No relief is due.

            For the foregoing reasons, Petitioner's petition for post-conviction           collateral relief was

    properly dismissed.



                                                                   BY TI-IE COURT:




                                                                   STEVEN R. GER.OFF,


                                                            13
