J-S83036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA               : IN THE SUPERIOR COURT OF
                                               : PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTONIO STAMPS ,                           :
                                               :
                       Appellant               : No. 936 WDA 2018

               Appeal from the PCRA Order Entered June 6, 2018
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012088-2011


BEFORE:       PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED MARCH 20, 2019

        Antonio Stamps (“Stamps”), pro se, appeals from the Order denying his

Petition for Relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        On direct appeal, this Court set forth the facts underlying the instant

appeal as follows:

        On May 11, 2011, Tanika Tyson [(“Tyson”)] was at the window of
        her home on Crucible Street in the Crafton Heights area of
        Pittsburgh[,] waiting for a ride. She observed a dark-colored SUV
        pull into a parking lot; the vehicle then turned around and drove
        down the street. Tyson did not see the car stop[,] but heard a
        pop that sounded like a gunshot. (Notes of [T]estimony, 7/16-
        19/12 at 202-203, 391-393.)

        Pittsburgh 911 dispatcher Amy Chushanick [(“Chushanick”)]
        received multiple calls reporting shots fired in the 1500 block of
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S83036-18


     Crucible Street. One caller[,] who identified himself as John[,]
     stated a 20-year-old man had been shot in the chin by another
     man at 1558 Crucible Street. The caller stated he had no idea
     who shot the victim[,] and reported the victim was unresponsive
     and his breathing was becoming labored. A second anonymous
     call reported a shooting at 1556 Crucible Street. This caller heard
     arguing[,] possibly among three men[,] but did not see what
     transpired; a single gunshot was heard.[FN1]


     [FN1]   The 911 tapes were played for the jury.


     Chushanick later placed a return call to a caller and spoke to Eboni
     Cutler [(“Cutler”)]. Cutler was crying[,] and stated a black man
     wearing a blue and white striped hoody, blue jeans, and black
     Timberlands had exited the passenger side of his SUV and shot
     the victim. (Id. at 340-341.) Cutler identified the shooter as
     “Mook,” which Chushanick relayed to responding police officers.
     (Id. at 341-342.) On the broadcast, one of the officers noted that
     [Stamps] went by the nickname “Mook.” (Id. at 345-346.)

     Officer Vincent Pacheco [(“Officer Pacheco”)] arrived first to the
     scene and observed the victim lying in a patio area with four
     females around him, one holding a towel underneath his chin.
     (Id. at 87-89.) The patrolman tried to get as much information
     from the victim as he could. (Id. at 89.) When he asked the
     victim who the shooter was, the victim was only able to make a
     “gurgling sound.” (Id. at 90.) The victim was pronounced dead
     on June 8, 2011, 27 days after he was shot. An autopsy revealed
     that a gunshot wound had fractured his chin, traveled to the back
     of his head, and fractured his spinal cord; this resulted in
     immediate quadriplegia and paralysis. A medium caliber bullet
     with a full metal jacket was recovered from the victim’s spinal
     cavity.[FN2] Dr. Todd Luckasevic stated the victim died of a
     penetrating gunshot wound to the neck[,] and that the manner of
     death was homicide.


     [FN2]The single .45 automatic casing found at the scene was
     processed; no fingerprints were discovered. This shell casing was
     consistent with having discharged the bullet that killed the victim.



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     At the scene, officers made contact with Cutler, who, at the time,
     wished to remain anonymous out of her fear for her safety and
     the safety of her child. (Id. at 256.) Cutler told the officers that
     she knew the identity of the shooter as “Mook”[,] who is []
     Stamps. Officer Pacheco testified that [Cutler] reported [that
     Stamps] was wearing a blue and white striped hoody, but the
     description included in his report indicated the shooter was
     wearing a “hoody sweatshirt black.” (Id. at 125-126.) Officer
     Pacheco claimed this was a typographical error. (Id. at 126-127.)
     Cutler was present when the officers asked the victim if he knew
     who shot him; Cutler testified that she believed the victim did not
     identify the shooter because of the “code of the streets.” (Id. at
     255-256.)

     At trial, Cutler explained that she previously had a relationship
     with [Stamps,] and knew his street name to be “Mook.” (Id. at
     209.) Cutler testified that at approximately 6:00 or 7:00 p.m.,
     she was with [Stamps] and the victim at a cookout near the
     location of the shooting. (Id. at 210-211.) [Stamps] and the
     victim had an argument over a bond the victim paid for [Stamps].
     (Id. at 212.) At this point, Cutler testified that [Stamps] had on
     [an] “all black and a blue and white striped hoody.” (Id. at 214.)
     The argument ended[,] and [Stamps] got in his SUV and drove
     away. (Id. at 215.) Cutler called [Stamps] and told him not to
     return[,] as she was worried “something bad was about to
     happen.” (Id. at 217.) She testified that he did not sound angry,
     but she heard a clicking that sounded like “gun metal” being
     racked over the phone. (Id. at 218-219.)

     Later that night, Cutler was outside her home, which[,] she
     explained[,] is up on a hill, and she saw [Stamps’s] SUV drive
     down Crucible Street, turn around in a rental office parking lot,
     and park. The area was illuminated by automatic street lights,
     and Cutler had an unobstructed view as [Stamps] approached the
     victim. (Id. at 220-222, 225.) Cutler observed the tip of a silver
     gun in his hand. (Id. at 226.) Cutler claimed this person was
     [Stamps] based on his clothing, “all black and blue and white
     striped hoody[,]” with the hood up obstructing his face. (Id. at
     223-224.) However, Cutler recognized [Stamps’s] mouth and
     build. (Id. at 224.)




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     Cutler testified that Rodger Henderson [(“Henderson”)] was also
     present and “playing peacekeeper.” (Id. at 227.) Henderson told
     [Stamps] to put the gun away and “just fight it out.” (Id.) Cutler
     stated the victim looked scared and “just stood there”; he did not
     have a weapon. (Id. at 227-228.) [Stamps] was pacing back and
     forth and wiping his mouth. (Id. at 228.) Cutler heard [Stamps]
     say, “he was [the victim’s] bro, and he loved [the victim].” (Id.)
     [Stamps] then lifted the gun over Henderson’s shoulder and shot
     the victim, who immediately dropped to the ground. [Stamps]
     walked up the hill toward where Cutler was standing, got into his
     SUV, and left the scene. (Id. at 229-230.)

     Cutler testified that around the time of the victim’s death, in early
     June 2011, she heard from [Stamps,] who was at a relative’s
     house in Detroit. (Id. at 257-258.) When Cutler asked him why
     he shot the victim, [Stamps] “acted like he didn’t know what I was
     talking about and changed the subject.” (Id. at 257.)[FN3] On June
     29, 2011, almost seven weeks after the shooting, Cutler was
     shown a collection of photographs and identified [Stamps] as the
     shooter. (Id. at 258-260.) Cutler also gave a taped statement
     to the detectives. [Stamps] was apprehended in Detroit on
     August 3, 2011.


     [FN3]At the conclusion of Cutler’s testimony, the court went on a
     site visit to Cutler’s home and the scene of the shooting shortly
     after 2:00 p.m. (Id. at 296-299.)


     Detective Christine Williams [(“Detective Williams”)] recalled that
     officers went to seven apartments looking for witnesses. Two
     individuals recalled hearing a gunshot[,] but did not go to the
     window to see what happened. (Id. at 56, 79.) The residents of
     the other apartments were not home or did not answer their
     doors. Over defense objection, [Detective Williams] testified that
     people rarely cooperate[,] as they are afraid to get involved. (Id.
     at 57-58.) When asked about the level of cooperation she had
     seen in her 19 years as a detective, she stated, “it is not very
     common at all. When we talk to people, they say, ‘Don’t you
     understand? I have to live here. I don’t want to testify. I can’t
     say nothing. I’m afraid. I got to stay here. You don’t have to live
     here.’ That’s basically what we hear.” (Id. at 58-59.)



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     Pittsburgh Homicide Detective James McGee [(“Detective
     McGee”)] testified that Stamps was not licensed to carry a firearm.
     [Detective] McGee further explained that law enforcement made
     efforts to locate witnesses to the shooting, including []
     Henderson[,] who was located in the Allegheny County Jail;
     Henderson refused to speak to the police.

     Henderson testified for the defense and stated that he had
     witnessed the shooting. Henderson claimed to have been outside
     with friends when he turned and saw a man wearing solid dark
     clothing and a ski mask, holding a gun in his left hand. Henderson
     briefly struggled with the gunman[,] who broke free[,] and
     Henderson fled.     (Id. at 412-413.) Henderson stated that
     [Stamps] was not present when the shooting occurred.
     Henderson stated [that] he believed the shooter was
     approximately 5’11” tall[,] and that [Stamps] was about 6’2” tall.
     On cross-examination, Henderson admitted he was friends with
     [Stamps], and despite their friendship, he failed to provide any
     information to police when they approached him in jail. He also
     admitted to having previously pled guilty to the crimes of
     providing false identification to a police officer and intimidation of
     a witness. (Id. at 417-418.)

     [Stamps] was charged with one count of criminal homicide and
     one count of firearms not to be carried without a license. On July
     15, 2012, a jury trial was conducted, and thereafter, [Stamps]
     was found guilty of first[-]degree murder and the firearms
     offense. On September 26, 2012, [Stamps] was sentenced to life
     imprisonment with no further penalty imposed.

Commonwealth v. Stamps, 118 A.3d 441 (Pa. Super. 2015) (unpublished

memorandum at 1-7) (footnotes in original).      On January 8, 2015, this

Court affirmed Stamps’s judgment of sentence.        See id.    Stamps did not

petition our Supreme Court for allowance of appeal.

     On September 14, 2015, Stamps filed the instant PCRA Petition, his first.

The PCRA court appointed counsel to represent Stamps, who filed an Amended

Petition. The Amended Petition alleged one claim of ineffective assistance of


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trial counsel, for failure to cross-examine Cutler. On August 29, 2016, the

PCRA court issued Notice of its intent to dismiss Stamps’s PCRA Petition

without a hearing, pursuant to Pa.R.Crim.P. 907. Thereafter, Stamps filed a

pro se Application for leave to file objections, rebuttals, and a pro se response

to the Notice to dismiss. On October 14, 2016, the PCRA court entered its

Order dismissing Stamps’s PCRA Petition. That same day, the PCRA court

issued an Opinion, which included a discussion of Stamps’s pro se claims.

      Stamps’s counsel subsequently filed a Notice of Appeal, followed by a

Motion for a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81

(Pa. 1998).    After a Grazier hearing, the PCRA court denied Stamps

permission to proceed pro se. On December 30, 2016, Stamps filed a pro se

Motion for another Grazier hearing, which the PCRA court denied, without a

hearing, on January 4, 2017. Thereafter, Stamps filed, in this Court, a Motion

for a Grazier hearing. On February 28, 2017, this Court remanded the matter

for a Grazier hearing. On remand, after a hearing, the PCRA court entered

an Order permitting Stamps to proceed pro se.

      On August 22, 2017, this Court again remanded the case, so as to allow

Stamps to file a pro se Amended PCRA Petition. Stamps thereafter filed the

pro se Amended PCRA Petition underlying this appeal, raising three claims of

ineffective assistance of trial counsel. The Commonwealth filed an Answer,

after which the PCRA court issued Notice of its intent to dismiss the pro se

Amended PCRA Petition without a hearing. On June 6, 2018, after Stamps


                                      -6-
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responded to the Notice to dismiss, the PCRA court dismissed Stamps’s pro se

Amended PCRA Petition. Thereafter, Stamps filed the instant timely appeal,

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

       Stamps presents the following claims for our review:

       [1.] Is [Stamps] entitled to a global new trial or arrest of
       judgment insofar as the [PCRA court] abused its discretion by
       ruling in [Stamps’s] favor that [] counsel’s ineffectiveness prongs
       were satisfied with respect to Commonwealth’s witness [] Cutler’s
       pending criminal charges being omitted during trial to the jurors
       were bias [sic], but not prejudice[,] and also failing to rule on the
       amended quid pro quo claim?

       [2.] Is [Stamps] entitled to a global new trial or arrest of
       judgment based [on the court’s] evidentiary ruling that
       [Stamps’s] rights under due process weren’t violated insofar as
       [Stamps] elected not to go to the site visit[,] unencumbered[,] at
       the word of counsel; and lack of colloquy violated due process and
       [] Pa.R.Crim.P. 602?

       [3.] Is [Stamps] entitled to a global new trial or arrest of
       judgment inasfar as the trial court abused its discretion by flouting
       the rules of court by allowing the District Attorney to permit []
       Cutler to testify to the decedent’s state of mind and Detective
       [Williams’s] hearsay testimony as an expert witness,
       notwithstanding the [District Attorney’s] ability to make a farce
       and mockery of defense witness [] Henderson’[s] Miranda[2]
       rights on the stand, without objection by trial counsel?

Brief for Appellant at 4 (footnote added).

       Stamps first claims that in denying him relief, the PCRA court misapplied

the law regarding the bias of Cutler, and the existence of a potential deal


____________________________________________


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


                                           -7-
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between the Commonwealth and Cutler.           See Brief for Appellant at 11.

Stamps contends that “during trial, it is incumbent on the District Attorney to

question [its] witnesses on direct-examination about pending criminal

charges[,] in order for defense counsel to cross-examine any bias or corrupt

motives by said [witness].”    Id. at 12.   According to Stamps, information

regarding Cutler’s pending criminal charges “would have given weight to this

claim of [a] due[-]process violation.” Id. at 14. Stamps asserts that without

Cutler’s testimony, there would have been no indictment. Id. Stamps further

observes that Cutler received no jail time for her subsequent convictions for

trespass and simple assault. Id. at 16. Regarding prejudice resulting from

counsel’s alleged dereliction, Stamps argues that the trial court’s jury charge

instructed the jury that Cutler’s bias “equates to prejudice,” and cites

Commonwealth v. Davido, 106 A.3d 611, 645 (Pa. 2014), in support of his

claim of prejudice. Brief for Appellant at 17-18.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted).

      To be entitled to relief on a claim of ineffective assistance of counsel, a

petitioner must plead and prove that

      the underlying claim is of arguable merit, counsel’s performance
      lacked a reasonable basis, and counsel’s ineffectiveness caused
      him prejudice. Prejudice in the context of ineffective assistance
      of counsel means demonstrating there is a reasonable probability

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      that, but for counsel’s error, the outcome of the proceeding would
      have been different…. Failure to establish any prong of the test
      will defeat an ineffectiveness claim.

Commonwealth v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015) (citations

omitted).

      The PCRA court rejected Stamps’s claim based upon his failure to

establish prejudice resulting from counsel’s failure to cross-examine Cutler

effectively regarding bias. See PCRA Court Opinion, 10/14/16, at 2 (stating

that Stamps failed to establish the prejudice prong of his ineffectiveness

claim); see also PCRA Court Opinion, 9/1/15, at 1 (stating that “[h]ad

[Cutler’s] pending charges been highlighted for the jury, [the PCRA] [c]ourt

holds the firm belief that the result would not have been different.”).       We

agree with the PCRA court’s assessment.

      Our review of the record discloses that Cutler identified Stamps as the

perpetrator on May 11, 2011, June 29, 2011, and September 3, 2011. See

N.T., 55 (wherein Detective Williams testified that a witness identified “Mook”

as the shooter upon the detective’s arrival at the shooting scene), 95-96

(wherein Officer Pacheco testified that a woman at the scene identified “Mook”

as the assailant), 108-09 (wherein Office Pacheco testified that he later

discovered the name of the woman at the scene, who had identified “Mook”

as the assailant, to be Cutler), 259-60 (wherein Cutler testified at trial that on

June 29, 2011, she identified Mook’s photo, to police, as depicting the

perpetrator of the shooting). Thus, the Commonwealth presented evidence


                                      -9-
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that Cutler’s identification of Stamps as the perpetrator remained consistent

both before and after the unrelated criminal charges were filed against her.

Even if Cutler had been cross-examined about her pending criminal charges,

the evidence would establish that Cutler did not change her identification of

Stamps as a result of the pending criminal charges. Thus, there is no evidence

that would support Stamps’s claim of bias. Under these circumstances, we

discern no abuse of discretion by the PCRA court in rejecting Stamps’s

ineffectiveness claim. See Commonwealth v. Dennis, 950 A.2d 945, 954

(Pa. 2008).

      In his second claim, Stamps argues that his counsel rendered ineffective

assistance by not seeking to colloquy Stamps regarding his decision not to be

present during the jury’s crime scene site visit.    Brief for Appellant at 19.

Stamps argues that “he was not abreast of trial counsel’s prevaricated

reasoning to the trial court that [Stamps] had foregone his presence at the

site visit if ‘h[e] can[]not go unencumbered.’”      Id. (emphasis omitted).

Stamps contends that pursuant to Pa.R.Crim.P. 602, a colloquy was required

before he forewent his due-process right to attend all stages of the trial. Id.

Stamps further challenges the lack of a stenographic record of the site visit.

Id. at 20. Thus, Stamps asserts that he should have been advised of the

consequences of foregoing his right to be present during the site visit, and

that counsel rendered ineffective assistance by failing to object to the lack of




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a colloquy or a stenographic record. Id. at 21. According to Stamps, the

absence of a colloquy violated his right to due process. Id. at 24.

      In Snyder v. Massachusetts, 291 U.S. 97 (1934) (overruled in part

on other grounds), the United States Supreme Court held that the Due Process

Clause of the Fourteenth Amendment was not violated by excluding a

defendant from an on-site inspection by a jury, where the defendant’s

attorney was present and participated, along with the prosecutor, in directing

the jury’s attention to various aspects of the location under inspection by the

jury. Id. at 108. The Court explained that “the presence of the defendant is

a condition of due process to the extent that a fair and just hearing would be

thwarted by his absence, and to that extent only.” Id. at 107-08 (emphasis

added). The Supreme Court explained that the defendant’s presence at a jury

view is not among those constitutional rights “conferred so explicitly as to

leave no room for an inquiry whether prejudice to a defendant has been

wrought through their denial.” Id. at 116; cf. United States v. Walls, 443

F.2d 1220, 1223 (6th Cir. 1971) (finding “reversible error for the court to deny

appellant and his attorney the opportunity to attend the view to insure against

the intrusion of prejudicial error” (emphasis added), but basing its decision

upon its supervisory authority over the administration of criminal justice in

the district courts and not the Constitution).

      Contrary to Stamps’s assertions, the Pennsylvania Supreme Court’s

decision in Commonwealth v. Hunsberger, 58 A.3d 32 (Pa. 2012), affords


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him no relief. In Hunsberger, the defendant challenged his exclusion from

voir dire proceedings. Id. at 36. Our Supreme Court recognized that the

United States Supreme Court has “explicitly affirmed that voir dire is a critical

stage of the criminal proceeding, during which the defendant has a

constitutional right to be present[.]” Id. at 37. Our Supreme Court did not

address whether a site visit is a critical stage of a criminal proceeding.

Further, the failure to colloquy Stamps, regarding his attendance at the site

visit, does not rise to the level of a violation of his constitutional rights. See

Commonwealth v. Mallory, 941 A.2d 686, 697 (Pa. 2008) (explaining that

“[a] waiver colloquy is a procedural device; it is not a constitutional end or a

constitutional ‘right.’”).

       Thus, Stamps has not established that the failure to engage in a

colloquy, prior to his decision to forego attending the site visit, violated his

right to due process. As such, Stamps has failed to plead and prove the first

prong of a claim of ineffective assistance of counsel, i.e., that his claim has

arguable merit.3 We therefore are unable to grant Stamps relief on this claim.

       In his third claim, Stamps argues that the PCRA court improperly

rejected his claim of prosecutorial misconduct during Cutler’s trial testimony.


____________________________________________


3 We additionally discern no prejudice resulting from the lack of a stenographic
record of the site visit. Stamps’s counsel was present during the site visit.
Stamps does not set forth how, but for the lack of a stenographic record of
the site visit, the outcome of his trial would have been different. See Solano,
129 A.3d at 1162. Thus, Stamps failed to establish the prejudice prong of his
ineffectiveness claim.

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Brief for Appellant at 25. Stamps directs our attention to Cutler’s testimony

regarding the victim’s statement that denied knowledge of the identity of his

assailant. Id. at 26. At that time, the Commonwealth elicited the following

testimony:

      [Q. The Commonwealth]: Would [the victim] ever tell the police
      anything?

      [A. Cutler]: No.

      [Q.] Can you explain why not?

      [A.] Because [sic] the code of the streets.

See Brief for Appellant at 26 (citation omitted). Stamps argues that the above

testimony constituted hearsay, resulting in prejudice. Id.

      Stamps claims that counsel’s inaction led to testimony by Detective

Williams regarding the reasons for a lack of cooperation by witnesses. Id. at

26-27.   According to Stamps, “[w]ithout a curative instruction[, Stamps]

suffered a g[ro]tesque due process violation.” Id.

      Stamps additionally argues misconduct in that

      [t]he trial court further opened the door for [the Commonwealth]
      to go on a pernicious rampage in overruling the Miranda progeny
      when scholding [sic] defense witness [] [H]enderson’s assertion
      that he remained silent during custodial interrogation to avoid
      being self incrimination [sic].

Id. at 28 (footnote omitted).

      Our review of the record discloses that Stamps’s trial counsel, in fact,

objected to Cutler’s testimony regarding the reason why the victim would not

identify his assailant. See N.T., 7/16-19/12, at 225-26. In addition, during

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the cross-examination of Henderson, Stamps’s trial counsel objected to

Henderson’s reference to Miranda, and challenged the relevance of Miranda

to Henderson’s testimony. See id. at 416. The fact that counsel’s objection

was ultimately unsuccessful does not render trial counsel ineffective.      See

Commonwealth v. Walker, 36 A.3d 1, 12 (Pa. 2011) (in declining to remand

for development of the record, stating that the fact that counsel’s chosen tactic

ultimately was unsuccessful does not render counsel’s assistance ineffective).

      More importantly, our review of the record discloses that Stamps raised

his challenge to Detective Williams’s testimony during his direct appeal. See

Stamps, unpublished memorandum at 12 (wherein Stamps claims improper

bolstering of Cutler’s identification, based upon Detective Williams’s testimony

that people do not typically cooperate with police).      During direct appeal,

Stamps claimed that “the trial court erred in allowing officers to testify that

people do not typically come forward and cooperate with police.” Stamps,

unpublished memorandum at 12. This Court rejected that claim. See id. at

12-13. Thus, Cutler’s testimony was merely cumulative of other, properly

admitted testimony.     Under these circumstances, we discern no abuse of

discretion by the PCRA court in rejecting Stamps’s claim.         Consequently,

Stamps fails to establish prejudice resulting from the failure to seek a curative




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instruction.4 See Commonwealth v. Boone, 862 A.2d 639, 646 (Pa. Super.

2004).

       Because we find no merit to the claims raised by Stamps, we affirm the

Order of the PCRA court.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2019




____________________________________________


4 Further, Stamps previously litigated a challenge to the substance of Cutler’s
testimony on direct appeal. Because the claim was previously litigated, his
present claim is not cognizable under the PCRA. See Commonwealth v.
Banks, 656 A.2d 467, 469 (Pa. 1995) (stating that, “[t]o be eligible for PCRA
relief, [an a]pellant must establish, by a preponderance of the evidence, that
his conviction or sentence resulted from one or more of the enumerated errors
or defects found in section 9543(a)(2)[,] and that his issues have not been
previously litigated”).


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