J-S37021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CHRISTOPHER MCENEANEY                   :
                                         :
                                         :   No. 3128 EDA 2018


          Appeal from the PCRA Order Entered, September 12, 2018,
             in the Court of Common Pleas of Delaware County,
            Criminal Division at No(s): CP-23-CR-0001914-2006.


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                    FILED OCTOBER 11, 2019

     Christopher McEneaney appeals from the order denying his first petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).       42

Pa.C.S.A. §§ 9541-9546. Although we affirm the denial of post-conviction

relief, we remand for resentencing in light of Miller v. Alabama, 567 U.S.

460 (2012), and Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718

(2016).

     A jury found McEneaney, who was sixteen years old at the time of the

crime, guilty of the first-degree murder of a homeless man. McEneaney’s co-

defendant, Andre Mark was found guilty of third-degree murder.              In

addressing the merit of both defendants’ direct appeals, the trial court, the

Honorable Patricia H. Jenkins, summarized the pertinent facts as follows:

          At 8:00 p.m. on March 24, 2006, a Friday evening, several
          teenagers observed [the victim], a homeless man, carrying
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         a shovel through a parking lot in Upper Darby near a
         Modell’s store and St. Eugene’s Field. The teenagers then
         witnesses Mark and McEneaney walking after [the victim]
         while taunting him and yelling insults and curses. Mark and
         McEneaney then threw rocks at [the victim] that they
         procured from a construction site in the parking lot. [The
         victim] hid behind a nearby dumpster to avoid being hit by
         the rocks. The teenagers noticed that McEneaney had a
         shiny object in his hand. The object was a knife.

            As the teenage witnesses drove away, the two assailants
         began running after [the victim]. McEneaney motioned with
         the knife, taunting [the victim] with it. Mark and McEneaney
         yelled at [the victim] to put down the shovel and fight.

             After driving a few blocks away, the teenagers returned
         to the Bishop Hill Apartments and saw [the victim] lying on
         a field. The boys called the police. [The victim] had shovel
         marks on his face and was bleeding and badly injured. [The
         victim] died from injuries suffered in the attack. The
         medical examiner concluded that the manner of death was
         homicide caused by multiple stab wounds.

            On March 26, 2006, Mark admitted to Upper Darby police
         that he and “another guy” (McEneaney) threatened [the
         victim] after they saw him “going through” a dumpster. The
         confrontation began with words and escalated to rock
         throwing after [the victim] “mooned” Mark and the other
         person. Mark claimed that [the victim] swung a shovel at
         him, but that he and the “other person” quickly got the
         upper hand. Mark admitted punching [the victim] in the
         jaw, “and we just beat the guy.” Mark claimed that
         McEneaney struck [the victim] with the shovel.

            McEneaney also gave a statement to police in which he
         admitted yelling at [the victim] and throwing rocks at him
         with Mark. McEneaney claimed that he stabbed [the victim]
         only after [the victim] hit him with the shovel. McEneaney
         also admitted hitting [the victim] on the head with a shovel.

Trial Court Opinion, 12/27/07, at 3-4 (citations to record omitted).

      Following McEneaney’s conviction, Judge Jenkins, on May 7, 2007,

sentenced him to a mandatory term of life imprisonment without parole. On

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October 6, 2008, we rejected McEneaney’s claim that Judge Jenkins erred in

failing to decertify his case to juvenile court, and affirmed McEneaney’s

judgment of sentence. Commonwealth v. McEneaney, 964 A.2d 440 (Pa.

Super. 2008) (unpublished memorandum). McEneaney did not seek further

review.

       On August 3, 2009, McEneaney filed a timely pro se PCRA petition, and

the PCRA court (Judge Jenkins) appointed counsel.      Original PCRA counsel

filed an amended petition on McEneaney’s behalf, in which he raised several

claims of ineffectiveness of trial counsel. In response to the Commonwealth’s

answer, Judge Jenkins ordered original PCRA counsel to correct certain

deficiencies in the petition, and original PCRA counsel filed a second amended

petition. On January 4, 2011, Judge Jenkins issued Pa.R.Crim.P. 907 notice

of her intention to dismiss McEneaney’s PCRA petition without a hearing. In

a footnote, Judge Jenkins briefly explained why each claim of trial counsel’s

ineffectiveness lacked merit. McEneaney did not file a counselled response.1

By order entered February 10, 2011, Judge Jenkins dismissed McEneaney’s

PCRA petition. McEneaney’s original PCRA counsel did not file an appeal from

this determination.


____________________________________________


1 In response, McEneaney filed a pro se “Motion for Leave to Replace Counsel,”
in which he asserted that original PCRA counsel abandoned him and sought
new counsel to assist him in seeking post-conviction relief. By order entered
January 26, 2011, Judge Jenkins denied this petition.              McEneaney
unsuccessfully appealed this decision to this Court.


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       On February 16, 2011, newly-retained PCRA counsel filed a “Motion for

NUNC PRO TUNC Relief” on McEneaney’s behalf. In this petition, new PCRA

counsel claimed that original PCRA counsel “abandoned [McEneaney] by

failing to cure the defective petition.         As a direct result of [original PCRA]

counsel’s abandonment and ineffectiveness, the [PCRA] Court denied the

petition and issued the 907 notice of dismissal.” Motion, 6/18/12, at 3. In

the request for relief, McEneaney’s new PCRA counsel asked the PCRA court

to “reinstate [McEneaney’s] Post Conviction rights and permit him to file an

amended petition.” Id. at 5. Alternatively, counsel requested that the PCRA

court “reinstate his appellate rights and permit him to timely appeal the

dismissal of the PCRA petition to the Superior Court.”               Id.   Thereafter,

McEneaney’s new counsel supplemented this petition with a claim that Miller

v. Alabama, 132 S.Ct. 2455 (2012), rendered his petition timely filed, since

that decision was filed on June 25, 2012.

       Following Rule 907 notice, the PCRA court, by order entered October 16,

2012, dismissed McEneaney’s nunc pro tunc PCRA petition as untimely filed.

Although the PCRA Court acknowledged that a PCRA petitioner could establish

the    newly    discovered     time-bar        exception   by   establishing   attorney

abandonment,2 the court concluded that McEneaney failed to exercise due

diligence, because he did not file his subsequent petition within sixty days of

____________________________________________


2See PCRA Court Opinion, 3/20/13, at 7 (citing Commonwealth v. Bennett,
930 A.2d 1264 (Pa. 2002)).


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the date he discovered that he was abandoned by original PCRA counsel. See

PCRA Court Opinion, 3/20/13, at 7-8.

        McEneaney filed a timely appeal to this Court. On March 7, 2014, a

divided panel vacated the PCRA court’s order and remanded the case,

directing the PCRA court to determine whether original PCRA counsel

abandoned McEneaney. See Commonwealth v. McEneaney, 100 A.3d 298

(Pa. Super. 2014), unpublished memorandum at 13-14.3

        Following remand, original PCRA counsel testified at an evidentiary

hearing that the PCRA court held on April 18, 2017.      According to original

PCRA counsel, he did not file an appeal because he never received notice of

the court’s final order. N.T., 4/18/17, at 40. By order entered September 18,

2018, the PCRA court granted McEneaney nunc pro tunc reinstatement of his

right to appeal the dismissal of his second amended petition.       The court,

however, denied McEneaney’s request to further amend that petition to

include new claims of trial counsel’s ineffectiveness.    This timely appeal

followed. Both McEneaney and the PCRA court have complied with Pa.R.A.P.

1925.

        McEneaney now raises the following issues for our review:

          I.     Were    [McEneaney’s]     Sixth  and   Fourteenth
                 Amendment rights violated when his prior [PCRA
                 counsel] filed an inadequate amended PCRA petition
                 which was not supported by either argument or
____________________________________________


3Judge Strassburger dissented, as he agreed with the PCRA court that
McEneaney’s second PCRA petition was untimely.


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              evidence and failed to correctly frame, raise and argue
              meritorious claims that [McEneaney] specifically
              asked     him    to  raise?;    Were     [McEneaney’s]
              constitutional rights violated when the PCRA Court
              refused to permit [McEneaney] with the assistance of
              current PCRA counsel to amend the inadequate PCRA
              filed by prior PCRA counsel?

       II.    Did the PCRA court violate [McEneaney’s] Fourteenth
              Amendment rights when it held that [McEneaney] was
              not prejudiced by trial counsel’s ineffective failure to
              file a pretrial Motion to Suppress [McEneaney’s]
              statements to police?

       III.   Did the PCRA court violate [McEneaney’s] Fourteenth
              Amendment rights when it held that trial counsel was
              not ineffective under the Sixth Amendment for failing
              to call [McEneaney’s] expert, Dr. [Richard] Saferstein,
              on the subject of the victim’s violent propensities and
              the impact of drug and alcohol use on those
              propensities?

       IV.    Was Appellate Counsel ineffective under the Sixth
              Amendment for failing to appeal the Court’s ruling
              precluding admission of evidence of a PFA related to
              evidence of the [victim’s] gentle nature?

       V.     Did the PCRA court violate [McEneaney’s] Fourteenth
              Amendment rights when it held, without benefit of a
              hearing, that trial counsel was not ineffective for
              failing to object to the prosecutor’s comments during
              opening argument comparing the defendants to
              hunters “stalking their prey” and “killing for sport” and
              then highlighting this in the defense closing?

       VI.    Did the PCRA Court violated [McEneaney’s] Fifth and
              Fourteenth Amendment rights when it held, without
              benefit of a hearing or any evidence that trial counsel
              was not ineffective under the Sixth Amendment for
              failing to object, move for a mistrial or otherwise bring
              to the attention of the court that a juror was
              sleeping/inattentive?




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McEneaney’s Brief at 3-4 (roman numerals corrected).4

       Our scope and standard of review is well settled:

              In PCRA appeals, our scope of review is limited to the
       findings of the PCRA court and the evidence on the record of the
       PCRA court's hearing, viewed in the light most favorable to the
       prevailing party. Because most PCRA appeals involve questions
       of fact and law, we employ a mixed standard of review. We defer
       to the PCRA court's factual findings and credibility determinations
       supported by the record. In contrast, we review the PCRA court's
       legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

              When the PCRA court has dismissed a petitioner’s PCRA
       petition without an evidentiary hearing, we review the PCRA
       court’s decision for an abuse of discretion. Commonwealth v.
       Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
       discretion to dismiss a petition without a hearing when the court
       is satisfied that there are no genuine issues concerning any
       material fact, the defendant is not entitled to post-conviction
       collateral relief, and no legitimate purpose would be served by
       further proceedings. Id. To obtain a reversal of a PCRA court’s
       decision to dismiss a petition without a hearing, an appellant must
       show that he raised a genuine issue of material fact which, if
       resolved in his favor, would have entitled him to relief, or that the
       court otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

____________________________________________


4 In its brief, the Commonwealth asks this Court to strike McEneaney’s Brief
and remand for a new briefing schedule because new PCRA counsel includes
issues not raised below and attaches to the brief documents that do not appear
in the certified record. See Commonwealth’s Brief at 19-25. Although we
decline to do so, we will address only the issues that were preserved below,
and only to the extent that documents of record support McEneaney’s
arguments.


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       In his first appellate issue, McEneaney inappropriately challenges

original PCRA counsel’s ineffectiveness for the first time on appeal.         See

generally, Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014) (en

banc); 981 A.2d 875 (Pa. 2009); Pa.R.A.P. 302(a).

       Moreover, our review of the record refutes new PCRA counsel’s claim

that original PCRA counsel abandoned McEneaney during the litigation of his

PCRA petition.       As noted above, original PCRA counsel twice amended

McEneaney’s PCRA petition.         Although, in its responses, the Commonwealth

twice complained of deficiencies in McEneaney’s counseled pleadings, the

Commonwealth briefly addressed the merits of McEneaney’s ineffective

assistance claims. Following proper Rule 907 notice, Judge Jenkins dismissed

the McEneaney’s PCRA petition as meritless. Thus, prior PCRA counsel did not

abandon McEneaney during the litigation of his PCRA petition, and the PCRA

court did not dismiss McEneaney’s second amended PCRA petition as

defective, but rather, dismissed the petition on its merits.5

       As noted above, in order to preserve claims of original PCRA counsel’s

ineffectiveness, McEneaney had to raise them in response to the PCRA court’s

Rule 907 notice.      Henkel, supra.           McEneaney did not do so.   New PCRA


____________________________________________


5  Nowhere in McEneaney’s appellate brief does new PCRA counsel
acknowledge the second amended petition. Moreover, given the fact that the
PCRA court dismissed McEneaney’s PCRA petition on its merits, new PCRA
counsel’s claim that the court should have allowed counsel to amend the
petition fails.


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counsel’s raising nine additional claims of trial counsel’s ineffectiveness for the

first time in McEneaney’s Rule 1925(b) statement is not sufficient; rather,

McEneaney’s only remedy is to seek relief in another subsequently filed PCRA

petition. “A party cannot rectify the failure to preserve an issue by proffering

it in response to a Pa.R.Crim.P. 1925(b) order.” Commonwealth v. Watson,

835 A.2d 786, 791 (Pa. Super. 2003) (citation omitted).6

       McEneaney’s remaining issues were preserved below, and we therefore

address them on their merits. To obtain relief under the PCRA premised on a

claim that trial counsel was ineffective, a petitioner must establish, by a

preponderance of the evidence, that counsel's ineffectiveness so undermined

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

innocence could have taken place. Commonwealth v. Johnson, 966 A.2d

523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to be

constitutionally adequate, and counsel will only be deemed ineffective upon a

sufficient showing by the petitioner.”         Id.   This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel



____________________________________________


6Although we are aware of this Court’s recent decision in Commonwealth v.
Shaw, ___ A.3d ___ (Pa. Super. 2019) 2019 WL 2864262, we find it readily
distinguishable. In Shaw, this Court concluded that Shaw’s claim of PCRA
counsel’s ineffectiveness was not waived on appeal because prior PCRA
counsel “abandoned the only claim [Shaw] had presented at the PCRA hearing
by failing to include it in Shaw’s Rule 1925(b) statement.” Id. at * 6-8. Here,
by contrast, except for the claims addressed infra, McEneaney did not
preserve the remaining claims by raising them in the PCRA court.


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had no reasonable strategic basis for his or her action or inaction; and (3)

counsel’s act or omission prejudiced the petitioner. Id. at 533.

       As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”      Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

       As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).      Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).

       As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine

confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

       Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order


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of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may      proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

      In his second issue, McEneaney claims that the PCRA court erred in

dismissing his claim that trial counsel was ineffective for failing to file a motion

to suppress his statements made to the police. As this Court has summarized:


             [T]he failure to file a suppression motion under some
         circumstances may be evidence of ineffectiveness
         assistance of counsel.          However, if the grounds
         underpinning that motion are without merit, counsel will not
         be deemed ineffective for failing to so move. The defendant
         must establish that there was no reasonable basis for not
         pursuing the suppression claim and that if the evidence had
         been suppressed, there is a reasonable probability that the
         verdict would have been more favorable.

Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016)

(citations omitted).

      The Honorable Patricia H. Jenkins, who, as noted above, presided at

McEneaney’s jury trial, and who acted as the original PCRA court, found no

merit to this claim given the overwhelming evidence of McEneaney’s guilt:

         McEneaney, who was a minor at the time of his arrest,
         contends that trial counsel was ineffective for failing to
         suppress an inculpatory statement that he gave to police

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         officers after his arrest. His original PCRA petition alleges
         that the police tricked his step-grandfather into signing a
         Miranda waiver form without advising him of his right to
         consult with McEneaney. Whether or not this states a valid
         claim, the Court finds that McEneaney did not suffer
         prejudice.    Even if this statement to police had been
         suppressed, the other evidence of his guilt was
         overwhelming.

Rule 907 Notice, 1/4/11, at 2 n.1. In his Rule 1925(a) opinion, the Honorable

Richard M. Cappelli, to whom the case was reassigned, reinforced Judge

Jenkins’ conclusions. Judge Cappelli first discussed the applicable law and the

circumstances surrounding McEneaney’s statement:

             To safeguard an uncounseled individual’s Fifth
         Amendment privilege against self-incrimination, suspects
         subject to custodial interrogation by law enforcement
         officers must be warned that they have the right to remain
         silent, that anything they say may be used against them in
         court, and that they are entitled to the presence of an
         attorney. See Thompson v. Keohane, 516 U.S. 99, 104,
         116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (citing Miranda v.
         Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694
         (1966). Juveniles, as well as adults, are entitled to be
         apprised of their constitutional rights pursuant to Miranda.
         See In re Gault, 387 U.S. 1, 57, 87 S.Ct. 1428, 18 L.Ed.2d
         527 (1967). If a person is not advised of his Miranda rights
         prior to custodial interrogation by law enforcement officers,
         evidence resulting from such interrogation cannot be used
         against him. See Miranda, 384 U.S. at 436, 444, 478-79,
         86 S.Ct.1602; Commonwealth v. Chacko, 500 Pa. 571,
         459 A.2d 311, 314-15 (1983). A person is deemed to be in
         custody for Miranda purposes when “[he] is physically
         denied his freedom of action in any significant way or is
         placed in a situation in which he reasonably believes that his
         freedom of action or movement is restricted by the
         interrogation.” Commonwealth v. Williams, 539 Pa. 61,
         650 A.2d 420, 427 (1994).

           Instantly, whether [McEneaney] knowingly, voluntarily
         and intelligently gave a statement to Upper Darby Police

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        detectives while in custody was not the subject of any pre-
        trial motion to suppress his statement. Although, according
        to portions of the record here [McEneaney] and his step-
        grandparent agreed to give the statement. It does not
        appear that the statement was the result of coercion or law
        enforcement      officers   overwhelming    the    will   of
        [McEneaney’s] resistance.

           Law enforcement had already developed strong leads in
        the murder of [the victim] that led them to [McEneaney’s]
        accomplice, [Andre Mark]. There were also witnesses to the
        attack who provided identification information.          Law
        enforcement lawfully appeared at the residence of
        [McEneaney] with a search warrant. The murder weapon
        was retrieved from a hole in the ceiling above [McEneaney’s]
        bed. Clearly, [McEneaney] observed all of this transpiring.
        [McEneaney] had in his possession a cut out copy of the
        news article declaring the victim of his stabbing attack had
        died.    [McEneaney] and his “step-grandfather” were
        removed to Upper Darby Police headquarters where
        [McEneaney] was interviewed after agreeing to give the
        statement.

           Also, it appears in the record that [McEneaney] does not
        suffer any pernicious intellectual deficit or insidious learning
        disability that would have prevented him from
        understanding the warning and implications of his
        statement to law enforcement.              An interest adult,
        [McEneaney’s] grandparent or step-grandparent, was
        present the entire time and also consented to the
        questioning.

PCRA Court Opinion, 1/10/19, at 6-7.

     Judge Cappelli then agreed with Judge Jenkins’ conclusion that

McEneaney had not established prejudice:

           Although it does appear in the record that trial counsel
        did not pursue any motion to suppress [McEneaney’s]
        statement to law enforcement, in light of the other
        overwhelming evidence of [McEneaney’s] guilt there was no
        prejudice, that is, the third prong, of the ineffectiveness
        analysis cannot be made out [in] this case.

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             Specifically, even assuming arguendo that the claim of
          counsel’s failure to file the suppression motion has arguable
          merit AND moreover that counsel lacked any arguable
          reasonable basis for failing to file a motion to suppress
          [McEneaney’s] inculpatory custodial statements to law
          enforcement, the other evidence of his guilt was
          overwhelming as observed by [Judge Jenkins] in [her]
          January 4, 2011 order dismissing [McEneaney’s] PCRA
          that no material prejudice accrued. See [Id. n.1].

PCRA Court Opinion, 1/10/19, at 8.7

       Our review of the record supports these conclusions. In arguing to the

contrary, McEneaney does not develop how the failure of trial counsel to file a

suppression motion prejudiced him in light of the other evidence supporting

his conviction. Moreover, in his supporting argument for this ineffectiveness

claim, McEneaney does not discuss the prejudice prong at all.                  See

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (explaining, “When

an appellant fails to meaningfully discuss each of the three ineffectiveness

prongs, he is not entitled to relief, and we are constrained to find such claims

waived for lack of development”) (citation omitted). Thus, for all of these

reasons, McEneaney has not established that if the evidence had been

suppressed, there was a reasonable probability that the verdict would have

been more favorable. Therefore, his second issue fails.

       In his third issue, McEneaney asserts that trial counsel was ineffective

for failing to call an expert he had retained prior to trial to discuss the victim’s

____________________________________________


7In his Rule 1925(a) opinion, Judge Cappelli discussed the evidence presented
against McEneaney in detail. See PCRA Court Opinion, 1/10/19, at 3-6.


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violent propensities and how the victim’s use of drugs and/or alcohol would

have affected those propensities.

        In order to establish that trial counsel was ineffective for failing to

investigate and/or call a witness at trial, a PCRA petitioner must demonstrate

that:

          (1) the witness existed; (2) the witness was available; (3)
          trial counsel was informed of the existence of the witness or
          should have known of the witness’s existence; (4) the witness
          was prepared to cooperate and would have testified on
          appellant’s behalf; and (5) the absence of the testimony
          prejudiced appellant.


Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) ((quoting

Commonwealth v. Bomar, 826 A.2d 831, 856 (Pa. 2003).                    Here, the

admissibility and scope of Dr. Saferstein’s testimony was litigated prior to trial.

Ultimately, trial counsel did not call him as a witness. Thus, only question is

whether McEneaney satisfied the fifth factor, that is, whether the absence of

Dr. Saferstein’s testimony prejudiced him.

        Judge Jenkins concluded that McEneaney could not establish prejudice,

given the other evidence presented at trial:

          McEneaney alleges that trial counsel was ineffective for
          failing to present expert testimony that the [victim] had
          violent propensities, and that drug and alcohol use
          exacerbated his aggressiveness.          This testimony,
          McEneaney argues, would have led the jury to believe that
          he was acting in self-defense. McEneaney’s original and
          amended PCRA petitions do not include any affidavit or
          other document demonstrating that [the victim’s] addictions
          fueled his aggressiveness. Therefore, the Court finds no


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         substantial basis for holding an evidentiary hearing on this
         subject. Moreover, the Court does not believe that expert
         testimony would have changed the outcome of the trial. The
         jury heard evidence about the [victim’s] drug and alcohol
         use and his aggressive conduct, including (a) the [victim’s]
         intoxication at the time of death (in particular, his BAC of
         .18%[;] (b) medication in his system such as Valium and
         methadone, and benzodiazepine[;] (c) the [victim’s]
         strange conduct toward [McEneaney and Mark]; and (d) the
         [victim’s] role in provoking the fight by “mooning” the
         defendants and swinging a shovel at them. Despite all this,
         the jury found McEneaney guilty. Expert testimony about
         the effect of intoxication on the [victim’s] conduct would not
         have changed the verdict.

Rule 907 Notice, 1/4/11, at 2 n.1 (citations to record omitted).

      After reviewing the trial record, Judge Cappelli again agreed with Judge

Jenkins’ conclusion. After reiterating the above comments by Judge Jenkins,

Judge Cappelli explained:

            To understand the conclusion that additional evidence of
         the victim’s violent or aggressive or hostile [tendencies]
         would be inconsequential to the jury’s finding that
         [McEneaney] committed first degree murder in the homicide
         of [the victim], reference is made to the [Judge Jenkins’]
         opinion on direct appeal wherein [she] stated:
         “[McEneaney], at the time less than 18 years of age and
         Andre Mark brutally beat a homeless man to death for the
         perverse thrill of taking an innocent person’s life.” See,
         12/27/07, Trial Court Opinion.

            In actuality attempting to present evidence of the
         victim’s violent tendencies could backfire even more
         drastically than it could help ameliorate [McEneaney’s]
         criminal liability as such evidence could readily be viewed as
         blaming the victim for his own death where he was minding
         his own business rummaging through a dumpster when set
         upon by [McEneaney] and his accomplice who provoked and
         quickly escalated a verbal altercation into serious physical
         violence with the vicious repeated stabbing death of the
         [victim]. Under these circumstances, evidence such as is

                                     - 16 -
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          suggested would likely be of little moment and tenuous at
          best to achieve its purported end. This conclusion is
          supported by the record and free of legal error.
          Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007).

              Therefore, [Judge Jenkins’] dismissal of this theory of
          relief without a hearing was proper and justified under the
          circumstances. [McEneaney’s] appeal should be denied and
          dismissal of [McEneaney’s] PCRA petition affirmed.

PCRA Court Opinion, 1/10/19, at 9.

       We agree that McEneaney’s third issue does not entitle him to relief.

McEneaney does not proffer any basis upon which Dr. Saferstein’s testimony

would be admissible for any reason other than to bolster the credibility of

McEneaney’s own testimony.           See generally, Commonwealth v. Seese,

517 A.2d 920, 922 (Pa. Super. 1989).

       Indeed, McEneaney concedes as much in his brief. See McEneaney’s

Brief at 29-30 (asserting “Dr. Saferstein’s testimony would have corroborated

and greatly strengthened, [McEneaney’s] and other witness’ description of

[the victim’s] lack of caution and self-restraint. . . . had the jury heard Dr.

Saferstein’s testimony they would have been more likely to find that

[McEneaney] had acted in self-defense).            Once again, McEneaney had the

opportunity to proffer such evidence at the April 18, 2017 PCRA hearing but

failed to do so.8 Given these circumstances, McEneaney’s third issue fails.

____________________________________________


8 Although Dr. Saferstein’s report does not appear in the certified record, our
reading of the report reveals no discussion of the victim’s “violent”
propensities. We further note that, in response to the Commonwealth’s
motion in limine, Judge Jenkins had ruled that Dr. Saferstein would not be



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       In his fourth issue, McEneaney asserts that appellate counsel was

ineffective for failing to appeal Judge Jenkins’ pre-trial ruling that precluded

the admission of a protection from abuse (“PFA”) order granted in favor of the

victim’s sister against the victim.            According to McEneaney, trial counsel

unsuccessfully sought to introduce the PFA order in rebuttal to the

Commonwealth’s evidence of the victim’s gentle nature.

       “Questions regarding the admission of evidence are left to the sound

discretion of the trial court, and the Superior Court, as an appellate court, will

not disturb the trial court’s rulings regarding the admissibility of evidence

absent an abuse of that discretion.”            Commonwealth v. Pukowsky, 147

A.3d 1229, 1233 (Pa. Super. 2016). In her March 19, 2007 pre-trial order,

Judge Jenkins concluded “[e]vidence of a 2003 [PFA] obtained against the

victim has little or no probative value, which is exceeded by its potential for

prejudice, and is therefore barred by Pa.R.E. 404.”

       In addressing McEneaney’s ineffectiveness claim, Judge Jenkins found it

meritless because the PFA order that a court had issued in 2003, three years

before the victim’s death, “was too attenuated to be relevant.”            Rule 907

Notice, at 2 n.1. In addition, Judge Jenkins concluded, “this proposed rebuttal
____________________________________________


permitted to testify to his conclusion as to causation. See Order, 3/19/07, at
1; Report, 11/7/06, at 2 (concluding that the victim’s “alcohol and drug
induced state markedly reduced his capacity to take normal and prudent
precautionary measures that would have avoided the occurrence of this
incident. . . . The alcohol and drug intoxication of [the victim] must be
considered a primary factor contributing to the occurrence of his fatal injuries
arising out of this incident”).


                                          - 18 -
J-S37021-19



evidence would not have changed the verdict, since the jury already heard

evidence about [the victim’s] drug and alcohol use and aggressive conduct on

the night of his death.” Id. Once again, Judge Cappelli, agreed with Judge

Jenkins’ conclusions. See PCRA Court Opinion, 1/10/19, at 10.

       After reviewing the evidence, we discern no abuse of discretion.

McEneaney argues, “Admission of the PFA was essential to the defense

because it would have shown that when under the influence of drugs and

alcohol, [the victim] had a history of responding inappropriately with

violence.” McEneaney’s Brief at 34. According to McEneaney, the victim’s

“prior propensity for violence under the influence of drugs and alcohol was

directly relevant and probative as to whether he acted similarly in the case at

bar.” Id. He further asserts that he was prejudiced in that, “[b]ecause the

jury did not have the PFA before it, they were denied key evidence in support

of [McEneaney’s claim] of self-defense.” Id. at 35.9

       We are not persuaded by McEneaney’s contentions.         In making his

argument, he provides no details regarding the underlying PFA that a court

granted in favor of the victim’s sister three years prior to his death.     In

addition, McEneaney failed to call appellate counsel at the 2017 PCRA hearing.

____________________________________________


9McEneaney also asserts that “the Commonwealth was not made to meet [its]
burden of proving that [he] did no reasonably believe that he was in imminent
danger if serious bodily injury from” the victim. McEneaney’s Brief at 35. As
McEneaney inappropriately raises this claim for the first time on appeal, we
will not consider it further. See Pa.R.A.P. 302(a).



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J-S37021-19



Nevertheless, given the overwhelming evidence of his guilt, McEneaney

cannot establish that had appellate counsel raised this issue on appeal, he

would have been afforded relief in the form of a new trial. Thus, McEneaney’s

fourth ineffectiveness claim fails.

      In his fifth issue, McEneaney’s claims that trial counsel was ineffective

for failing to object to alleged prosecutorial misconduct.     Our standard of

review is well settled:

         [P]rosecutorial misconduct does not take place unless the
         unavoidable effect of the comments at issue was to
         prejudice the jurors by forming in their minds a fixed bias
         and hostility toward the defendant, thus impeding their
         ability to weigh the evidence objectively and render a true
         verdict. . . . In reviewing a claim of improper prosecutorial
         comments, our standard of review is whether the trial court
         abused its discretion. When considering such a claim, our
         attention is focused on whether the defendant was deprived
         of a fair trial, not a perfect one, because not every
         inappropriate remark . . . constitutes reversible error.

Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012) (citations

omitted). “Prosecutorial misconduct, however, will not be found where the

comments were based on evidence or proper inferences therefrom or were

only oratorical flair.”   Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.

Super. 2005) (citation omitted). In order to evaluate whether comments were

improper, we must look to the context in which they were made. Id.

      According    to     McEneaney,    the     Commonwealth   first   committed

prosecutorial misconduct during its opening statements to the jury. As our

Supreme Court has summarized:


                                       - 20 -
J-S37021-19


         The principles applicable to such a claim are well
         established. Remarks in a prosecutor’s opening statement
         must be fair deductions from the evidence which he in good
         faith plans to introduce and not mere assertions designed to
         inflame the passions of the jury. The prosecution is not,
         however, required to prove conclusively all statements
         made during the opening [statement]. As long as there is
         a good faith and reasonable basis to believe that a certain
         fact will be established, reference may properly be made to
         it during the opening [statement]. Even if an opening
         [statement] is improper, relief will be granted only where
         the unavoidable effect is to so prejudice the finders of fact
         as to render them incapable of objective judgment.

Commonwealth v. Jones, 610 A.2d 931, 938-39 (Pa. 1992) (citations

omitted).   McEneaney further asserts that by attempting to rebut these

comments during his closing, trial counsel actually exacerbated the prejudice

because the Commonwealth, by responding to trial counsel’s comments,

actually repeated its earlier characterization of his conduct.

      When read in context, the opening remarks to which McEneaney claims

trial counsel should have objected are as follows:

         Ladies and gentleman of the jury on March 24th of 2006,
         almost a year ago today, [the victim] was rummaging
         [through] a trash dumpster near the Bishop Hill apartments
         in Clifton Heights, Delaware County. He was minding his
         own business in a quiet somewhat secluded area just off of
         Baltimore Pike where he sat in the Bishop Hill apartments.
         And at around 8:00 a.m. that night, 8:00 p.m., he
         encountered two individuals who would brutally end his life.
         Two individuals who murdered [the victim] are sitting right
         here in the Courtroom today. Christopher McEneaney and
         Andre Mark. They’re the two individuals who encountered
         [the victim] as he . . . rummaged through that dumpster.
         McEneaney and Mark stalked [the victim] on that evening
         like two hunters that were stalking their prey. Like
         they were killing for sport. When they first encountered him
         in the dumpster they started to harass him. They were

                                     - 21 -
J-S37021-19


        screaming at him, throwing rocks at him. [The victim] yelled
        back and then he mooned them. As we come to know
        mooning means pulling his pants down in a gesture back at
        them. They became enraged and continued the harassing
        of [the victim]. [The victim] got a shovel at some point out
        of the truck for his own protection and [McEneaney and
        Mark] started to pursue him. They pursued him in front of
        the dumpster that he was originally rummaging in to
        another dumpster where [the victim] went to hide behind,
        again for his own protection, hide behind another dumpster.
        And at some point [McEneaney and Mark] continued their
        [pursuit] into a field what is known as Saint Eugene’s field
        there, again near the Bishop Hill apartments. Once they got
        into the field Andre Mark began punching [the victim] in the
        face and then Christopher McEneaney at some point began
        to stab him. He stabbed - - Christopher McEneaney stabbed
        [the victim] not once, not twice, not three times, not four
        times, not five times not six times, not seven times, but
        eight times Christopher McEneaney stabbed [the victim].
        In his own words, the victim didn’t seem to be feeling these
        stabbings, [McEneaney] took the shovel from [the victim]
        and slammed him over the top of the head with it three
        times. [The victim bled] to death there in that field.

N.T., 3/20/07, at 115-17 (emphasis added).

     Unlike   McEneaney,    Mark’s    counsel   raised   this   same   claim   of

prosecutorial misconduct in his direct appeal.       Although Judge Jenkins

correctly found this claim waived for lack of a specific objection, she

nevertheless found the claim devoid of merit. Judge Jenkins explained:

            Moreover, the Court agrees with the Commonwealth that
        the prosecutor’s statement was within the boundaries of
        oratorical flair. Our appellate courts have ruled that similar
        statements comparing criminals to hunters and victims as
        prey are permissible. Commonwealth v. Miller, 897 A.2d
        1281m 1291 (Pa. Super. 2006) (Commonwealth’s opening
        and closing statements concerning use of noun “predator”
        and verb “preys” to describe defendant did not warrant new
        trial; defendant asked her victim for money and when
        refused, came back with hammer and knife and bludgeoned

                                     - 22 -
J-S37021-19


         and stabbed her to death, slitting her throat, and in the days
         that followed, she returned to the victim’s apartment and
         stole checks, credit cards, and victim’s car, each time
         walking past victims corpse sitting at kitchen table, such
         that defendant’s actions could reasonably termed
         predatory); Commonwealth v. Miles, 545 Pa. 500, 511,
         681 A.2d 1295, 1300 (1996), cert. denied, 520 U.S. 1187,
         117 S.Ct. 1472, 137 L.Ed.2d 684 (1997) (concluding
         prosecutor’s comparison of defendant’s actions to the
         hunting style of “animals of prey” was not improper);
         Commonwealth v. Van Horn, 797 A.2d 983 (Pa. Super.
         2002) (holding prosecutor’s characterization of victim as
         prey was within the limits of proper oratorical flair). Based
         on the evidence described above, the hunter-prey simile is
         as applicable here as it was in Miller, Miles and Van Horn.

Trial Court Opinion, 12/27/07, 14-15.

      In Rule 907 Notice to McEneaney’s PCRA petition, Judge Jenkins

reiterated this conclusion: “Prosecutors have the right to use proper oratorical

flair when arguing their case as long as arguments are grounded on sufficient

evidence.   Given the brutality of the defendants’ assault, the prosecutor’s

[opening and] closing argument was permissible.” Rule 907 Notice, 1/4/11,

at 2 n.1. In his Rule 1925(a) opinion, Judge Cappelli likewise concluded that

the statements by the prosecutor emphasized above “did not deny

[McEneaney] a fair trial or result in the fixing of bias or hostility in the minds

of the jurors such that the jury was clouded from evaluating the evidence but

instead were merely a valid exercise of oratorical flair and fair comment on

the evidence in this case.” PCRA Court Opinion, 1/10/19, at 12.

      We agree that the challenged comments were reasonably based on the

evidence, and inferences therefrom, as presented by the Commonwealth. In



                                      - 23 -
J-S37021-19



arguing to the contrary, McEneaney first contends “[c]omparing [him] to a

predator was both highly inflammatory and completely inapposite to

[McEneaney’s] claim of self-defense.” McEneaney’s Brief at 37. This claim is

disingenuous. We are aware of no authority that requires the Commonwealth

to tailor its comments to any potential defense a criminal defendant may raise

at trial.

       In addition, we find McEneaney’s supporting arguments undeveloped.

He first distinguishes the facts of Van Horn, supra, because it involved a

sexual offense against a minor. Although McEneaney cites a number of cases

wherein the appellate court found references to defendants as “animals” or a

“pack of wolves” to be prejudicial, see McEneaney’s Brief at 39-40, he does

not develop adequately their similarity to the facts in this case.

       McEneaney    avers   “[t]he     instant   case   is   on   all   fours”   with

Commonwealth v. Fears, supra, a capital murder case involving the death

and sexual assault of a twelve-year-old boy. We disagree for several reasons.

In Fears, during his closing penalty phase argument, the prosecutor referred

to Fears as “a hunter, a predator” and stated, “there’s no mitigation in this

case.” Fears, 86 A.3d at 819. Here, McEneaney was not facing the death

penalty. Moreover, Fears had waived his right to proceed before a jury during

the penalty phase of his trial.      In addressing Fears’ claim of prosecutorial

misconduct our Supreme Court first pointed out that, in making his argument,

Fears mistakenly asserted that the challenged comments “misdirected the

jury”—a claim which the Court suggested was the result of “‘cut and paste’

                                       - 24 -
J-S37021-19



written advocacy,” since Fears’ death penalty phase was argued before the

trial court as fact finder.    Id.   The Court then cited the well-settled

presumption that the trial court, when acting as fact finder, “can and will

disregard prejudicial evidence.” Id. (citation omitted). Our Supreme Court

concluded that Fears’ claim of prejudice was undeveloped.        Id.    Although

McEneaney argues that our Supreme Court in Fears “found that similar

comments by the prosecutor that Fears was ‘a hunter, a predator’ would have

been prejudicial had Fears had a jury trial,” McEneaney’s Brief at 37-38, we

find no such statement in the High Court’s two-paragraph discussion of the

alleged misconduct.

      After careful review, we agree with the Commonwealth that, considering

all the facts and circumstances surrounding the victim’s death in this case, our

Supreme Court’s decision in Miles, supra, is most similar. In Miles, another

capital murder case, three co-defendants acted in concert to rob the victim

outside a store in a shopping mall—one grabbed the victim’s sneakers, while

another shot at the victim, and a third kept the victim’s friend from coming to

his aid. The robbery victim’s friend was also shot and died at the scene. In

his closing to the jury, the prosecutor stated:

         [D]id you ever see those nature shows, that nature shows
         where the show animals of prey? . . . you see them chasing
         a de[e]r [sic], innocent animal, a[n] animal which serves as
         their prey. They rarely do it alone. Rarely does one attack
         by itself. There’s one that jumps up and snaps the neck of
         the de[e]r with one bite and another one that jumps up and
         tears the flesh of the slain off with one bite. They all can
         join together. They snip and tug and bite and snap until


                                     - 25 -
J-S37021-19


         they get what they’re after. They all share. They all act
         together. That’s what you saw here.

Miles, 681 A.2d at 1302.

      In rejecting a claim of prosecutorial misconduct for comparing the acts

of the co-defendants to animals hunting for their prey, our Supreme Court

explained:

            Our Court has held that as long as there is a reasonable
         basis in the record for the comments, we will permit
         vigorous prosecutorial advocacy. . . . The prosecutor’s
         comments in this case were reasonably based upon the
         record that the defendants acted in concert when attacking
         [the victims]. Here we find that the prosecutor’s comments
         could not have prejudiced the jury to the point of thwarting
         their objectivity.

Id. (footnote omitted). In addition, our Supreme Court conducted a harmless

error analysis and determined that, “the properly admitted evidence of Miles’

guilt, including his confession, his co-defendant’s statements and eyewitness

testimony, is overwhelming.” Thus, our Supreme Court in Miles, found that

even if error had occurred, it was harmless beyond a reasonable doubt, and

Miles was not entitled to a new trial.

      Here the prosecutor’s comments, although using the words “hunter” and

“prey”, did not provide the vivid animal comparison as used in Miles.

Nevertheless, as in the Miles decision, we agree that such references were

reasonably based upon the Commonwealth’s evidence that McEneaney and

Mark pursued and ultimately killed the victim. Harris, supra. Additionally,

given the overwhelming evidence of guilt, even if such comments were



                                     - 26 -
J-S37021-19



improper, McEneaney could not establish prejudice to the degree that would

warrant a new trial. Miles, supra.

         Finally, the Commonwealth’s reiteration of similar comments during its

closing argument to the jury were made in response to trial counsel’s attempt

during his closing to convince the jury that the evidence presented actually

contradicted the Commonwealth’s characterization of McEneaney’s conduct.

Rather than exacerbate the potential for prejudice, counsel’s argument

established a clear jury question regarding McEneaney’s actions. See N.T.,

3/23/07, at 7-9.        The fact that the jury made this decision in the

Commonwealth’s favor does not entitle McEneaney to post-conviction relief.

Because prosecutorial misconduct did not occur, counsel was not ineffective

for failing to object. “[C]ounsel cannot be deemed ineffective for failing to

raise a meritless claim.” Commonwealth v. Spotz, 896 A.2d 1191, 1211

(Pa. 2006). Thus, for all of the foregoing reasons, McEneaney’s fifth issue

fails.

         In his sixth and final issue, McEneaney “asserts that his trial counsel

was ineffective for failing to object and move to replace Juror Number 3 or for

a mistrial when the juror appeared to be sleeping and/or not paying attention

throughout the trial.” McEneaney’s Brief at 40. This issue arose during trial

after Judge Jenkins concluded her jury charge and was raised by the

prosecutor. See N.T. 3/23/07, at 102-05. In dismissing McEneaney’s claim,

Judge Jenkins, who, as noted above, presided at McEneaney’s trial, stated that

she “watched the jury closely during trial and did not see any juror sleeping.”

                                      - 27 -
J-S37021-19



Rule 907 Notice, 1/4/11, at 2 n.1. In his Rule 1925(a) opinion, Judge Cappelli

noted that his review of the trial transcript revealed “no further delineation of

whether the juror was actually sleeping for any portion of the case or jury

charge[.]” PCRA Court Opinion, 1/10/19, at 16.

      Given the state of the record, although McEneaney now suggests further

actions that trial counsel should have taken to determine whether the juror

was asleep or inattentive, he cannot establish prejudice. As stated by the

Commonwealth, “The record was not developed during trial to the point where

we will ever know whether the juror was sleeping, nodding off, paying close

attention or otherwise.” Commonwealth’s Brief at 48. Lacking the present

ability to provide a factual basis for his ineffectiveness claim, McEneaney’s

sixth issue fails.

      Because McEneaney’s claims of trial counsel’s ineffectiveness are

meritless, we affirm the PCRA court’s order denying McEneaney post-

conviction relief.

      Although we reach this disposition, we address sua sponte the legality

of McEneaney’s life without parole sentence in light of Miller v. Alabama,

567 U.S. 460 (2012), and Montgomery v. Louisiana, ___ U.S. ___, 136

S.Ct. 718 (2016). See Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.

Super. 2013) (explaining that because the legality of a sentence is non-

waivable and may be addressed by this Court sua sponte).

      In Miller, the United States Supreme Court held, “that mandatory life

without parole [sentences] for those under the age of 18 at the time of their

                                     - 28 -
J-S37021-19



crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual

punishments.’” Miller, 567 U.S. at 465.      Regarding the issue of whether the

Miller holding applied retroactively to juveniles sentenced to life in prison

without the possibility of parole prior to its ruling, the High Court in

Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016), held,

“Miller announced a substantive rule of constitutional law.         Like other

substantive rules, Miller is retroactive.”   Montgomery, 136 S.Ct. at 734.

Thus, in McEneaney’s case, although he was sentenced to life in prison without

parole in 2007, because he was sixteen at the time of his crime, he is entitled

to resentencing pursuant to Miller and Montgomery.

      In sum, although we affirmed the PCRA court’s order denying him post-

conviction relief, we vacate McEneaney’s judgment of sentence and remand

resentencing.

      Order denying post-conviction relief affirmed.     Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/19




                                    - 29 -
