J. S66034/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
MONTRELL GAINEY,                        :          No. 751 EDA 2019
                                        :
                        Appellant       :


          Appeal from the PCRA Order Entered January 16, 2019,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0014125-2011


BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 17, 2020

      Montrell Gainey appeals from the January 16, 2019 order entered by

the Court of Common Pleas of Philadelphia County dismissing his first petition

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

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

      The PCRA court set forth the following factual history:

            On May 11, 2011, [appellant] shot at two young men
            in broad daylight, killing Lamar Spencer and wounding
            Tracy Capers. The victims were talking outside of a
            store where Spencer worked when [appellant] and his
            friend, Roger Washington, approached them.
            [Appellant] drew a .45-caliber handgun and fired
            10 shots in the direction of the victims. [Appellant]
            wounded Capers by shooting him three times in the
            leg and killed Spencer by shooting him once in the
            back. Another employee inside the store called 9-1-1.

            This incident stemmed from an ongoing feud between
            rival housing projects located at 10th and Brown
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            Streets and at 7th and Green Streets. [Appellant] and
            Washington lived at 10th and Brown.[1] Capers was
            originally from West Philadelphia, never lived in either
            development, but was friends with people from 7th and
            Green. Spencer did not live in either development and
            no connection was found between him and either
            development.

            A bench warrant was obtained for Roger Washington
            to testify at trial, but the Commonwealth was unable
            to locate or secure his presence for trial.

            On March 12, 2014, the jury sitting before the [the
            trial court] found [appellant] guilty of first degree
            murder, attempted murder, aggravated assault,
            possession of an instrument of crime (“PIC”), and
            carrying a firearm without a license.          (“VUFA
            § 6106”).[ ] [The trial court] sentenced [appellant]
                        2

            the same day to life [imprisonment] without the
            possibility of parole on the charge of murder in the
            first degree and no further penalty on the remaining
            charges.

PCRA court opinion, 4/25/19 at 2 (citation to the record and extraneous

capitalization omitted).

      Appellant filed a notice of appeal and this court affirmed his judgment

of sentence on November 30, 2015. Commonwealth v. Gainey, 134 A.3d

505, 2015 WL 7901174 (Pa.Super. filed Nov. 30, 2015) (unpublished

memorandum). On February 3, 2016, appellant filed a PCRA petition seeking




1 The housing project located at 10th and Brown Streets was known as the
Richard Allen Homes (“Richard Allen”); and the housing project located at
7th and Green Streets was known as Penn Town. (Notes of testimony, 3/6/14
at 11-13.)

2 18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a), 907(a), and 6106(a)(1),
respectively.


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to have his right to file a petition for allowance of appeal with our supreme

court restored nunc pro tunc. The PCRA court granted appellant’s petition

on April 18, 2016, and appellant filed a petition for allowance of appeal with

our supreme court on May 16, 2016. Our supreme court denied appellant’s

petition on September 19, 2016. Commonwealth v. Gainey, 158 A.3d 68

(Pa. 2016). Appellant did not file a petition for a writ of certiorari with the

Supreme Court of the United States. For the purposes of collateral review,

appellant’s judgment of sentence became final on December 15, 2016. See

42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct. Rule 13.

      Appellant filed the instant timely, counseled PCRA petition on

December 9, 2017.3 On December 14, 2018, the PCRA court entered a notice

of intent to dismiss appellant’s PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907.    Appellant filed a response on January 3, 2019.         On

January 16, 2019, the PCRA court dismissed appellant’s PCRA petition without

a hearing.

      Appellant filed a timely notice of appeal on February 11, 2019.      The

PCRA court did not order appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).            Pursuant to

Pa.R.A.P. 1925(a), the PCRA court filed an opinion.


3 When a petitioner files a petition for collateral review following the
restoration of his direct appellate rights nunc pro tunc, the subsequent PCRA
petition is considered his first petition for timeliness purposes.
Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014) (citations
omitted).


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      Appellant raises the following issues for our review:

            I.     Did the PCRA court err in dismissing without a
                   hearing [appellant’s] claim that counsel
                   rendered ineffective assistance by failing to
                   interpose continuing objections to the pervasive
                   references by the Commonwealth to a prior,
                   unrelated killing and ensuing violence between
                   two rival neighborhood factions, by failing to
                   object to hearsay in that connection, and by
                   failing to prosecute an effective appeal of this
                   issue?

            II.    Did the PCRA court err in dismissing without a
                   hearing [appellant’s] claim that counsel
                   rendered ineffective assistance for failing to
                   object or to preserve objection to the
                   Commonwealth’s references to its anxiety to
                   produce Roger Washington as a witness?

            III.   Did the PCRA court err in dismissing without a
                   hearing [appellant’s] claim that counsel
                   rendered ineffective assistance for failure to
                   object to the insufficient remedy given by the
                   trial court for the Commonwealth’s failure to
                   make      pretrial     discovery    of  witness
                   Depaul Babbs’      prior    failure  to identify
                   [appellant]?

            IV.    Did the PCRA Court err in dismissing without a
                   hearing [appellant’s] claim that he is entitled to
                   relief based upon the cumulative prejudice from
                   Issues I, II and III?

            V.     Did the PCRA court err in dismissing without a
                   hearing [appellant’s] claim that his sentence of
                   life without parole is in violation of the United
                   States Supreme Court’s rulings in Miller v.
                   Alabama, 567 U.S. 460               (2012) and
                   Montgomery v. Louisiana, 136 S.Ct. 718
                   (2016)?

Appellant’s brief at 3-4.



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      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, [] 17 A.3d
            297, 301 ([Pa.] 2011) (citation omitted). A PCRA
            court’s credibility findings are to be accorded great
            deference, and where supported by the record, such
            determinations are binding on a reviewing court. Id.,
            at 305 (citations omitted). To obtain PCRA relief,
            appellant must plead and prove by a preponderance
            of the evidence: (1) his conviction or sentence
            resulted from one or more of the errors enumerated
            in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his claims have
            not been previously litigated or waived, id.,
            § 9543(a)(3); and (3) “the failure to litigate the issue
            prior to or during trial . . . or on direct appeal could
            not have been the result of any rational, strategic or
            tactical decision by counsel[,]” id., § 9543(a)(4). An
            issue is previously litigated if “the highest appellate
            court in which [appellant] could have had review as a
            matter of right has ruled on the merits of the issue[.]”
            Id., § 9544(a)(2). “[A]n issue is waived if [appellant]
            could have raised it but failed to do so before trial, at
            trial, . . . on appeal or in a prior state postconviction
            proceeding.” Id., § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

      In his first three issues, appellant alleges ineffective assistance on the

part of his trial counsel.    Under the PCRA, an individual is eligible for

post-conviction relief if the conviction was the result of “ineffective assistance

of counsel which, in the circumstances of the particular case, so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.”       42 Pa.C.S.A. § 9543(a)(2)(ii).     When




                                      -5-
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considering whether counsel was ineffective, we are governed by the following

standard:

                  [C]ounsel is presumed effective, and to
                  rebut that presumption, the PCRA
                  petitioner     must    demonstrate      that
                  counsel’s performance was deficient and
                  that such deficiency prejudiced him.
                  Strickland v. Washington, 466 U.S.
                  668 [] (1984). This Court has described
                  the Strickland standard as tripartite by
                  dividing the performance element into two
                  distinct components. Commonwealth v.
                  Pierce, [] 527 A.2d 973, 975 ([Pa.]
                  1987).      Accordingly, to prove counsel
                  ineffective,      the    petitioner    must
                  demonstrate that: (1) the underlying
                  legal     issue    has    arguable   merit;
                  (2) counsel’s actions lacked an objective
                  reasonable basis; and (3) the petitioner
                  was prejudiced by counsel’s act or
                  omission. Id. A claim of ineffectiveness
                  will be denied if the petitioner’s evidence
                  fails to satisfy any one of these prongs.

            Commonwealth v. Busanet, [] 54 A.3d 35, 45
            ([Pa.] 2012) (citations formatted). Furthermore, “[i]n
            accord with these well-established criteria for review,
            [an appellant] must set forth and individually discuss
            substantively each prong of the [Pierce] test.”
            Commonwealth v. Fitzgerald, 979 A.2d 908, 910
            (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015), order

vacated on other grounds, 166 A.3d 1213 (Pa. 2017).                     See also

Commonwealth v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003), quoting

Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (holding counsel

cannot be held ineffective for failing to raise meritless objection).



                                      -6-
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                                          I.

        In his first issue, appellant claims ineffectiveness on the part of his trial

counsel, Jack McMahon, Esq.,4 because Attorney McMahon failed to render

continuing objections to “the pervasive references by the Commonwealth to a

prior, unrelated killing and ensuing violence between two rival neighborhood

factions, by failing to object to hearsay in that connection, and by failing to

prosecute an effective appeal of this issue.”        (Appellant’s brief at 20 (full

capitalization omitted).) The PCRA court set forth the following with regard

to appellant’s first issue:

              [The trial court] ruled on a motion in limine that the
              Commonwealth “could say [appellant] lived in the
              neighborhood. That people had been killed in the
              neighborhood and so on.” The [trial court] continued
              that the Commonwealth “could certainly say that
              people in the neighborhood may have known about
              Wayne [sic] [Ballard’s] murder.” The [trial court]
              limited the Commonwealth by prohibiting it from
              attributing Ballard’s murder to [appellant].         In
              opening statements, the Commonwealth referred to
              the feud between [Richard Allen and Penn Town] and
              described it as “senseless violence.” It also suggested
              Capers was involved in the violence and that
              [appellant] “came looking for [Capers]” and tried to
              kill him.

PCRA court opinion, 4/25/19 at 8 (citations to the record omitted; some

brackets in original).

        First, appellant specifically contends that Attorney McMahon rendered

ineffective assistance because he raised a “belated objection” to the


4   Attorney McMahon also represented appellant on direct appeal.


                                        -7-
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Commonwealth’s opening statement.            (Appellant’s brief at 27.)      Second,

appellant argues that Attorney McMahon was ineffective for failing to

“adequately renew his objection to the [Commonwealth’s] ongoing use of

irrelevant and inflammatory evidence[.]” (Id.) Third, appellant avers that

Attorney McMahon rendered ineffective assistance by failing to object to

hearsay testimony pertaining to violence between gangs associated with

Richard Allen and Penn Town.        (Id. at 39-40.)     Finally, appellant brings a

layered ineffective assistance claim, as he alleges that Attorney McMahon

“failed to make reasonable use of the portions of the record available to him

in support of his chosen issue, a failure which almost certainly resulted in [the

Superior Court’s] failing to consider the full extent of the Commonwealth’s

objectionable argument.” (Id. at 48 (citations omitted).) We shall address

each of these allegations separately.

Belated objection to the Commonwealth’s opening statement

      Appellant first contends that Attorney McMahon provided ineffective

assistance   due   to   his   failure   to   make   a   timely   objection   to   the

Commonwealth’s opening statement to the jury. (Id. at 26-27.) This issue

is without arguable merit.




                                        -8-
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      Indeed, as noted by appellant, this issue was addressed by a previous

panel of this court on direct appeal.5 Therein, appellant claimed that the trial

court erred when it denied his motion precluding the Commonwealth from

making certain statements during its opening statement pertaining to an

ongoing feud between factions at Richard Allen and Penn Town.           Gainey,

2015 WL 7901174 at *1. This court discerned no abuse of discretion of the

trial court’s findings that “evidence of hostilities in the neighborhood would be

admissible as part of the history and natural development of the instant

murder[,]” and determined that the trial court did not err when it denied

appellant’s motion. Id. at *6 (internal quotation marks omitted).

      “The purpose of an opening statement is to apprise the jury how the

case will develop, its background and what will be attempted to be proved;

but it is not evidence.” Commonwealth v. Parker, 919 A.2d 943, 950 (Pa.

2007) (citation omitted). Our supreme court recognized that a prosecutor is

afforded reasonable latitude when delivering his or her opening statement.

Id., citing Commonwealth v. Jones, 610 A.2d 931, 938 (Pa. 1992).               A

prosecutor’s latitude is limited, however, as his or her opening statement

“must be based on evidence that he plans to introduce at trial, and must not


5We note that previously litigated issues are not cognizable for PCRA review.
Commonwealth v. Jones, 932 A.2d 179, 181 (Pa.Super. 2007), citing
42 Pa.C.S.A. § 9543(a)(3). In the context of an allegation of ineffective
assistance of counsel, however, a claim distinct from the underlying issue is
being raised; therefore, the issue is cognizable for collateral review.
Commonwealth v. Wholaver, 177 A.3d 136, 147 (Pa. 2018) (citations
omitted).


                                      -9-
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include mere assertions designed to inflame the jury's emotions.                A

prosecutor's opening statements may refer to facts that he reasonably

believes will be established at trial.”       Parker, 919 A.2d at 950, citing

Commonwealth v. Begley, 780 A.2d 605, 626 (Pa. 2001) (internal quotation

marks, citation omitted).

      In this case, as noted above, this court on direct appeal discerned no

abuse of discretion of the trial court’s findings that “evidence of hostilities in

the neighborhood would be admissible as part of the history and natural

development of the instant murder.”        Gainey, 2015 WL 7901174 at *6.

Accordingly, the Commonwealth’s opening statement was based on evidence

it planned to introduce at trial, rather than mere assertions of a feud between

two neighborhoods as a way to inflame the jury’s emotions. See Parker, 919

A.2d at 950, citing Begley, 780 A.2d at 626. Therefore, Attorney McMahon

could not raise a meritorious objection to the Commonwealth’s opening

statement and, thus, cannot be found to be ineffective. Rivera, 816 A.2d at

292. Appellant’s claim that Attorney McMahon rendered ineffective assistance

due to a “belated objection” to the Commonwealth’s opening statement is

without arguable merit.

Failure to renew objection

      Appellant next contends that Attorney McMahon rendered ineffective

assistance because he failed to “adequately renew his objection to the

[Commonwealth’s] ongoing use of irrelevant and inflammatory evidence”



                                     - 10 -
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pertaining to the feud between factions at Richard Allen and Penn Town.

(Appellant’s brief at 27.) Specifically, appellant argues as follows:

             The failure to register a consistent, continuing
             objection to the [Commonwealth’s] many references
             to group warfare between residents of Richard Allen
             and Penn Town was highly ineffective. Not only was
             much of [the] testimony hearsay, loosely attributed to
             what was known on the street, but its slight probative
             value with respect to witness credibility was greatly
             outweighed by its inflammatory potential and the
             likelihood that the jury was diverted from its
             appropriate focus, that is, the shooting of
             Lamar Spencer and Tracy Capers.

Id. at 32.        Appellant further argues that the Commonwealth “was not

permitted    to    argue   that   [appellant]    had   a   motive   related   to   the

Dwayne Ballard killing unless it had ‘some direct proof of that.’” (Id. at 34,

citing notes of testimony, 3/5/14 at 173-174; R.R. at 53a.)

      Appellant’s claim lacks arguable merit.          Indeed, as noted above, a

previous panel of this court held that the trial court did not err when it

concluded that “evidence of hostilities in the neighborhood would be

admissible as part of the history and natural development of the instant

murder.”     Gainey, 2015 WL 7901174 at *6 (internal quotation marks

omitted).    Accordingly, Attorney McMahon cannot be found ineffective for

failing to raise meritless objections. See Rivera, 816 A.2d at 292. Therefore,

appellant is not entitled to relief.




                                        - 11 -
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Ineffective assistance of counsel on direct appeal

      Finally, appellant contends that Attorney McMahon rendered ineffective

assistance of counsel on direct appeal as it pertains to the Commonwealth’s

opening statement. Specifically, appellant contends that Attorney McMahon’s

framing of this issue on direct appeal was “in a manner calculated to ensure

that the argument was not taken seriously.”         (Appellant’s brief at 46.)

Appellant further argues that Attorney McMahon failed to “put forth a

competent argument with some chance of persuading an appellate panel.”

(Id. at 47-48.)

      In support of his argument, appellant cites Commonwealth v.

Franklin, 823 A.2d 906, 910 (Pa.Super. 2003).            Franklin is readily

distinguishable from the instant case. The Franklin court specifically stated

that counsel’s brief on the underlying appeal was so procedurally defective

that the previous panel could not reach the merits of the issues on appeal.

Id. at 909. This court found that the defendant was deprived of effective

assistance of counsel on direct appeal and vacated the PCRA court’s dismissal

of the defendant’s PCRA petition. Id. at 910-911.

      Here, while Attorney McMahon’s analysis on the opening statement

issue may have been limited, this court did not indicate that his analysis was

so defective as to preclude the panel from reaching a decision. See Gainey,

2015 WL 7901174 at *5-6 (restating appellant’s argument verbatim). To the

contrary, this court reached a decision on the merits. Accordingly, appellant’s



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issue as it pertains to his claim that Attorney McMahon rendered ineffective

assistance on direct appeal is without arguable merit.

                                      II.

      In his second issue, appellant argues that Attorney McMahon was

ineffective for failing to object to the Commonwealth’s references to “its

anxiety to produce Roger Washington as a witness.” (Appellant’s brief at 49

(full capitalization omitted).) As part of his second issue, appellant raises two

interrelated issues. First, appellant addresses Philadelphia Police Detective

Micah Spotwood’s testimony pertaining to Washington’s June 13, 2011

statement to the police and his efforts to locate Washington to have him testify

at trial.   Second, appellant addresses the Commonwealth’s references to

Washington during its closing argument.

Detective Spotwood’s Testimony

      Appellant contends that Washington’s statement to the police on

June 13, 2011 “was rank hearsay and inadmissible under Crawford v.

Washington, 541 U.S. 36 (2004).”         (Appellant’s brief at 49.)   Appellant,

however, does not frame his argument as a violation of Crawford; rather, he

argues “that the manner in which the testimony was admitted and argued

improperly presented to the jury an inference as to the contents of what

Washington’s testimony would have been, and the persons responsible for his

absence.” (Id. at 52.) In furtherance of his argument, appellant contends

that any evidence relating to Washington should have been excluded under



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Pa.R.E. 403 “for unfair prejudice, confusion of the issues or misleading of the

jury.” (Id. at 51-52.) Specifically, appellant argues that:

             [t]he testimony and argument concerning []
             Washington’s absence from the trial . . . was nothing
             more than a vehicle for suggesting to the jury that the
             content of his statement was favorable to the
             Commonwealth and not to [appellant] — thus
             accomplishing an end-run around Crawford’s
             prohibition against testimonial hearsay.

Id. at 52.

      On June 13, 2011, Washington gave a statement to the Philadelphia

Police Department in which he          identified appellant as the shooter.

(Philadelphia Police activity sheet, 6/13/11.) Washington further stated that

after the shooting, he and appellant ran toward Richard Allen, “at which time

he was told by [appellant] to keep his mouth shut.” (Id.) During his interview

with the police, Washington identified a photograph of appellant. (Id.)

      In the instant case, appellant takes issue with the testimony of

Detective Spotwood.     During the trial, Detective Spotwood testified that

Washington was interviewed by the police on June 13, 2011, but he had not

appeared to testify at appellant’s trial. (Notes of testimony, 3/10/14 at 35;

R.R. at 169a.) Detective Spotwood also testified about his efforts to locate

Washington to have him testify at trial.      (Notes of testimony, 3/10/14 at

33-39, 54-55; R.R. at 169a-170a, 174a.) Specifically, Detective Spotwood

testified that he had been looking for Washington during the two weeks

leading up to the trial, that he had confirmed Washington’s address with



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Washington’s probation officer, and that efforts to reach Washington by

telephone were unsuccessful. (Notes of testimony, 3/10/14 at 35-37; R.R. at

169a-170a.)

      The Pennsylvania Rules of Evidence permit a trial judge to exclude

otherwise relevant evidence if its probative value is outweighed by a danger

of, inter alia, unfair prejudice, confusing the issues, or misleading the jury.

Pa.R.E. 403. This court has held that evidence should be excluded on the

grounds of prejudice, “only if it has ‘an undue tendency to suggest decision

on an improper basis,’ or if it would ‘divert the jury’s attention away from [its]

duty of weighing the evidence impartially.’” Commonwealth v. Foy, 576

A.2d 366, 369 (Pa.Super. 1990), affirmed, 612 A.2d 1349 (Pa. 1992),

quoting Whistler Sportswear, Inc. v. Rullo, 433 A.2d 40, 47 (Pa.Super.

1981), and Commonwealth v. Taliaferro, 455 A.2d 694, 698 (Pa.Super.

1983) (citations omitted).

      The record reflects that Detective Spotwood testified about his efforts

to locate Washington to have him testify at trial. (Notes of testimony, 3/10/14

at   33-39,   54-55;   R.R.   at   169a-170a,    174a.)      At   no   point   did

Detective Spotwood testify as to the contents of Washington’s June 13, 2011

statement to the police, nor did he testify either explicitly or implicitly that

Washington’s testimony could have been favorable to the Commonwealth.

Therefore, Attorney McMahon did not have a basis to raise an objection to

Detective Spotwood’s testimony.



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The Commonwealth’s Closing Argument

     We next turn to the Commonwealth’s closing argument to the jury. In

his brief, appellant highlights the following excerpts from the Commonwealth’s

closing argument:

           I wrote down in preparation to give this speech to you
           all today some things I thought I was going to hear
           from defense counsel . . . I missed a couple . . . That
           the government through a mistake; not turning over
           those photo arrays when they should have been;
           right? And they were turned over and we had them
           and Mr. Babbs was asked about them. That that’s a
           conspiracy and an outrage. Where is the outrage;
           right? I heard a lot of yelling throughout this trial from
           that side of the room.

           Where is the outrage that Roger Washington isn’t here
           to testify? I didn’t hear any outrage about that. . . .

           ....

           The question always is for a witness, Well, why do I
           have to go into court? Didn’t you take a statement
           from me? Why is that not good enough? I already
           told you what happened. Why do I have to come to
           court? Why? Why? I don’t want to. Tracy Capers
           didn’t want to. Roger Washington didn’t want to.
           Depaul Babbs didn’t want to. Nobody wanted to come
           to court . . .

Appellant’s brief at 51, quoting notes of testimony, 3/10/14 at 228-229, 232;

R.R. at 217a-218a.

     Preliminarily, we note that our supreme court has recognized that a

prosecutor must be afforded reasonable latitude to argue a defendant’s guilt.

Commonwealth         v.   Clancy,   192   A.3d   44,   62   (Pa.   2018),   citing

Commonwealth v. Cronin, 346 A.2d 59, 62 (Pa. 1975) (citation omitted).


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The Clancy court further recognized that a prosecutor may “argue all

reasonable inferences from the evidence of record.” Clancy, 192 A.3d at 62,

quoting American Bar Association Standards Relating to the Prosecution

Function § 3-6.8(a).6

      Based on our review of the record, we cannot discern any reference by

the Commonwealth during its closing argument             to   the contents of

Washington’s statement to the police, nor can we discern any reference as to

whether   Washington’s   testimony    would   have   been     favorable   to   the

Commonwealth had he appeared to testify at trial.       Put another way, the

record reflects that the Commonwealth’s closing argument consisted of fair

conclusions derived from the evidence presented during the trial.              See

Clancy, 192 A.3d at 62. Therefore, Attorney McMahon did not have a basis

to raise an objection to the Commonwealth’s references to Washington during

its closing argument.

      We, therefore, find that neither Detective Spotwood’s testimony nor the

Commonwealth’s closing argument suggested a jury decision on an improper

basis. Foy, 576 A.2d at 369 (citations omitted). Likewise, we find that neither

Detective Spotwood’s testimony nor the Commonwealth’s closing argument

diverted the jury’s attention away from its duty of weighing the evidence

impartially. Id. We further find that Detective Spotwood’s testimony did not


6Our supreme court has adopted the American Bar Association Standards
Relating to the Prosecution Function. Commonwealth v. Starks, 387 A.2d
829, 831 (Pa. 1978) (citations omitted); see also Clancy, 192 A.3d at 62.


                                     - 17 -
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confuse the issues or mislead the jury. Accordingly, appellant’s second issue

is without arguable merit.

                                       III.

       In his third issue, appellant complains that Attorney McMahon rendered

ineffective assistance by failing to object to a jury instruction given by the trial

court in light of a Brady7 violation. (Appellant’s brief at 60-61.) As noted by

the PCRA court:

             The Commonwealth failed to disclose that a witness,
             DePaul Babbs, was shown at least one, possibly two,
             photo arrays and failed to identify [appellant.] The
             [Brady]       violation      was      discovered       on
             cross-examination when Babbs explained that he was
             shown a photo array by Detective Spotwood and did
             not make an identification. The [trial c]ourt granted
             a continuance, permitted the parties to interview
             Detective Spotwood, and provided time for [t]rial
             [c]ounsel to review the photo array once it was
             provided by the Commonwealth. Detective Spotwood
             testified   that   he    failed   to    document      the
             non-identification and claimed that it was an
             oversight. He testified inconsistently whether the
             photo arrays were provided to the District Attorney’s
             Office. He admitted that he “absolutely” would have
             documented a positive identification but denied that
             this    was     an    attempt     to     suppress     the
             non-identification. Trial [c]ounsel requested a limiting
             instruction be given to the jury that the
             Commonwealth was required to turn over that
             information and failed to do so. [The trial court] found
             that the non-disclosure was a Brady violation but that
             the violation was not intentional. As a result, [the trial
             court] added language to the jury instruction asking
             the jury not to hold that nondisclosure against the
             [Assistant] District Attorney personally, which
             [appellant] claims neutralized the effect of the

7   See Brady v. Maryland, 373 U.S. 83 (1963).


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            instruction. [Appellant] claims that [t]rial [c]ounsel
            was ineffective for failure to object to this language.

PCRA court opinion, 4/25/19 at 10-11 (citation to the record omitted).

      Here, the following jury instruction is at issue:

            Now, ladies and gentlemen, when we left yesterday,
            Mr. Babbs was on the witness stand and he was being
            cross-examined by defense counsel Mr. McMahon.
            There    were    some    discussions   about   some
            photographs that Mr. Babbs had been shown. So I
            want to tell you that I have had an opportunity to
            speak with counsel. And Mr. McMahon has advised
            me that the assistant district attorney Mr. Handrich
            did provide this morning copies of the photo spreads
            that were used in this trial. That were used in the
            investigation of this matter. What I want you to
            understand is that the Commonwealth had an
            obligation to turn those photos over well before the
            time of trial.

            So sometimes that happens. A lot of paperwork is
            involved.     I do want you to understand that
            Mr. Handrich is not the person who was responsible
            for holding the paperwork and not turning it over in a
            timely manner.      So the two things to understand
            is [sic] Mr. McMahon should have had the papers, the
            photos long before this morning, and Mr. Handrich is
            not to be held responsible because the paperwork was
            not turned over. It has been received this morning.
            Mr. McMahon has had an opportunity to review it and
            we’re going to pick up from there.

Notes of testimony, 3/7/14 at 14-16; R.R. at 120a. Specifically, appellant

contends that trial counsel should have objected because the trial court’s jury

instruction “was an abuse of discretion and improperly foreclosed any possible

conclusion by the jury that the failure to make discovery [on the part of the

Commonwealth] was in bad faith[.]” (Appellant’s brief at 59.)



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      It is axiomatic that at the trial level, evidentiary questions of law are

reserved for the judge, while questions of fact are reserved exclusively for the

fact-finder. See Pennsylvania Suggested Standard Criminal Jury Instructions

§ 2.01. In cases involving Brady violations, it is within the purview of the

trial court to determine whether a Brady violation on the part of either the

district attorney or law enforcement was committed with the intent to deprive

a defendant of a fair trial or was otherwise the product of intentional

misconduct.    Commonwealth v. Adams, 177 A.3d 359, 374 (Pa.Super.

2017).

      As noted by the Commonwealth, appellant does not allege that the trial

court’s curative instruction was an inadequate remedy for the Brady violation,

nor did appellant allege that the trial court’s instruction failed to cure the

Brady violation.   (Commonwealth’s brief at 30.)          Rather, appellant’s sole

contention is that Attorney McMahon’s failure to object to the trial court’s

curative instruction deprived the jury of the opportunity to determine whether

the Commonwealth’s Brady violation was in bad faith. (Appellant’s brief at

58-59.) Appellant’s argument would require the jury to determine a question

of law — which is in the exclusive purview of the trial judge. Accordingly, we

find appellant’s third issue is without arguable merit.

                                      IV.

      In his fourth issue on appeal, appellant raises a cumulative prejudice

claim.   Specifically, appellant contends that the “multiple instances of



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ineffectiveness . . . combine to render an even stronger case for awarding a

new trial or a new direct appeal.” (Appellant’s brief at 62.)

            [Our supreme court has] often held that “no number
            of failed [] claims may collectively warrant relief if
            they fail to do so individually.” [Commonwealth v.
            Johnson, 966 A.2d 523, 532 (Pa. 2009)] (quoting
            Commonwealth v. Washington, [] 927 A.2d 586,
            617 ([Pa.] 2007)). However, [the court has] clarified
            that this principle applies to claims that fail because
            of lack of merit or arguable merit. [Commonwealth
            v. Sattazahn, 952 A.2d 640, 671 (Pa. 2008)]. When
            the failure of individual claims is grounded in lack of
            prejudice, then the cumulative prejudice from those
            individual claims may properly be assessed. Id.;
            Johnson, supra at 532 (citing Commonwealth v.
            Perry, [] 644 A.2d 705, 709 ([Pa.] 1994), for the
            principle that a new trial may be awarded due to
            cumulative prejudice accrued through multiple
            instances of trial counsel’s ineffective representation.

Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011).

      Here, none of appellant’s three issues pertaining to ineffective

assistance of counsel were disposed of due to a lack of a showing of prejudice.

Rather, all three issues failed because they lacked arguable merit.

Accordingly, appellant’s claim of cumulative prejudice from multiple errors is

without merit.

                                       V.

      In his fifth issue, appellant contends that he is due relief in light of the

Supreme Court of the United States’ holdings in Miller v. Alabama, 567 U.S.

460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).                The

Miller Court held that mandatory minimum sentences for defendants who



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were juveniles at the time of the offense violated the Eighth Amendment.

Miller, 567 U.S. at 470.       Montgomery applied the holding in Miller

retroactively for the purposes of state collateral review. Montgomery, 136

S.Ct. at 732.

      As noted by appellant, an en banc panel of this court declined to extend

the holdings in Miller and Montgomery to defendants over 18 years of age

at the time of the offense.      Commonwealth v. Lee, 206 A.3d 1, 11

(Pa.Super. 2019) (en banc), appeal denied, 218 A.3d 851 (Pa. 2019); see

appellant’s brief at 63-64. Under the doctrine of stare decisis, we are bound

by existing precedent that has not subsequently been overturned by our

supreme court.    Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.Super.

2014) (citations omitted).

      At the time of the offense in the instant case, appellant was 21 years of

age. (Appellant’s brief at 63.) Therefore, in light of this court’s holding in

Lee, appellant is not due relief, and his fifth issue is without merit. Lee, 206

A.3d at 11.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/17/20



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