J-S16016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PRINCE ISAAC

                            Appellant                No. 1797 EDA 2015


                    Appeal from the PCRA Order May 8, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0002120-2007


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                 FILED JULY 19, 2016

        Prince Isaac brings this appeal from the order entered May 8, 2015, in

the Court of Common Pleas of Chester County, that denied his first petition

filed pursuant to the Pennsylvania Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541–9546. A jury convicted Isaac of murder in the first degree

and conspiracy,1 and the trial court sentenced him to life imprisonment.

Isaac raises numerous claims of appellate counsel’s ineffectiveness. Based

upon the following, we affirm in part, and vacate in part, and remand for

further proceedings.




____________________________________________


1
    18 Pa.C.S. §§ 2502(a) and 903(a)(2).
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      We recount the relevant facts and procedural history as set forth in

this Court’s decision on direct appeal, and the PCRA court’s opinion, as

follows:

      [Isaac] and his brother and co-conspirator, Shamek Hynson
      [Hynson], had a powerful motive to kill the victim, Omar Reid
      [the victim], on October 18, 2004. The murder was an act of
      retaliation against [the victim] for an incident involving another
      one of their brothers – Ramek Neal -- that took place nearly one
      year earlier. On November 5, 2003, at approximately 10:30
      p.m., Neal and another individual broke into [the victim’s]
      apartment at 416 Victoria Drive, in the Regency Park complex
      located in Coatesville, Chester County, Pennsylvania. Neal
      brandished a pistol while demanding [the victim’s] property.
      [The victim] fought back and in self-defense shot Neal, leaving
      Neal paralyzed from the neck down. This November 2003
      incident was the subject of subsequent family meetings attended
      by both [Isaac] and Hynson.

      On October 18, 2004, at approximately 11:00 p.m., [Isaac]
      drove Hynson to [the victim’s] apartment at 416 Victoria Drive in
      a Kia automobile that had been taken from a couple in
      Lancaster, Pennsylvania, to be used in the murder. Hynson got
      out of the Kia and knocked on [the victim]’s front door. As [the
      victim] opened the door, Hynson asked “are you Omar?” and
      then shot [the victim] six times. Shell casings were ejected from
      Hynson’s pistol and left at the murder scene. [The victim]
      collapsed and died on top of his five-year-old son, who had been
      on the living room floor near the front door. After the shooting,
      [Isaac] gestured to Hynson, from inside the Kia, to “hurry up.”
      This was observed by a witness looking out the window of her
      apartment. Hynson ran to the Kia, which was waiting for him
      with the front passenger’s door open. After Hynson got into the
      Kia, he closed the door, and [Isaac] sped away from the scene.

      A police officer happened to be driving into the Regency Park
      complex when a 911 dispatcher advised him of the shooting. The
      officer spotted the Kia and gave chase. During the chase, the
      murder weapon -- a Hi-Point .380 -- was thrown from the car
      into the brush next to a railroad track. Due to the wet roadway,
      [Isaac] lost control and crashed the Kia into a ditch. [Isaac] and


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     Hynson fled in different directions, and neither was apprehended
     by police at that time.

     Other individuals in [Isaac’s] Buick Riviera (another getaway
     vehicle) had been waiting, as planned, near the Regency Park
     complex and observed the police chasing the Kia to the location
     in Coatesville where [Isaac] had earlier switched from driving his
     own car, the Buick, and begun driving the Kia. They picked up
     Hynson, and Hynson told them that he had “just shot a man,”
     that he and [Isaac] were being chased, and that [Isaac] was still
     running from the police. Hynson and others then drove around
     Coatesville looking for [Isaac] and trying to find the gun that had
     been “tossed” during the getaway chase. Neither [Isaac] nor the
     gun was located, so they visited Ramek Neal to advise him of
     what happened and then returned to Lancaster. [Isaac] also
     made his way back to Lancaster. When he arrived, he was wet,
     he had a gash on his head, and his clothing was ripped. [Isaac]
     told his friends that, while being chased by the police, he had
     crashed the Kia and then had to run on foot.

     [Isaac’s] fingerprints were found on the interior driver’s door
     window of the crashed Kia. DNA testing confirmed the presence
     of Hynson’s blood on the interior passenger’s side of the Kia.
     Gunshot residue was also found inside the Kia. The murder
     weapon was found almost a year later by a woman walking her
     dog near the railroad tracks along [Isaac’s] escape route. That
     weapon was traced back to a straw purchase in North Carolina
     made by Tolanda Williams, the mother of Hynson’s child.
     Williams testified that during the week before the murder, she
     went with [Isaac] and Hynson to several pawn and gun shops in
     [Isaac’s] Buick, to be the straw purchaser of guns. The tag
     number of [Isaac’s] Buick was written down by one of the shop
     owners who became suspicious of one of the transactions.
     During cross-examination, the gun shop owner identified [Isaac]
     as the driver of the Buick. The Hi-Point .380 murder weapon was
     also used by Hynson to shoot Edward Cameron in Lancaster at
     approximately 4:30 p.m. on October 18, 2004 -- less than seven
     hours before [the victim] was murdered in Coatesville. Shell
     casings from the two shootings were all matched to the Hi-Point
     .380 found along the escape route. Cell phone records indicated
     that [Isaac’s] cell phone was active and used in the Coatesville
     area during and after the time of the murder.




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Commonwealth v. Isaac, 46 A.3d 830 (Pa. Super. 2012) (unpublished

memorandum, at 1–2, quoting Trial Court Opinion, 10/26/09, at 1-4),

appeal denied, 50 A.3d 125 (Pa. 2012). Police arrested Isaac on April 11,

2006, and charged him with murder of the first degree, murder of the third

degree, criminal conspiracy to aid and engage in homicide, and other related

offenses.2

        … On July 1, 2009, after a six day trial in which he represented
        himself with standby counsel, a jury convicted [Isaac] of murder
        in the first degree [and conspiracy] in the death of Mr. Reid.
        [Isaac’s] brother, Shamek Hynson, pled guilty to Mr. Reid’s
        murder in a separate proceeding. On July 8, 2009, [Isaac] was
        sentenced to life in prison. The Pennsylvania Superior Court
        affirmed his judgment of sentence on February 29, 2012. On
        August 13, 2012, the Pennsylvania Supreme Court denied his
        petition for allowance of appeal.     [See Commonwealth v.
        Isaac, 46 A.3d 830 (Pa. Super. 2012), appeal denied, 50 A.3d
        125 (Pa. 2012).]

        On November 12, 2013, represented by new counsel, [Isaac]
        filed a PCRA petition in which he raised seven claims of appellate
        counsel ineffectiveness. The Commonwealth subsequently filed
        its answer to [Isaac’s] petition, and on October 16, 2014, we
        held a PCRA hearing on [Isaac’s] claims.

PCRA Court Opinion, 5/8/2015, at 1–2 (“Factual and Procedural History”).

        At the October 16, 2014, hearing, PCRA counsel “argued one claim of

appellate counsel ineffectiveness and rested on the contents of his PCRA

petition for the other six claims.” PRCA Court Opinion, 5/8/2015, at 2. The

certified record does not contain a transcript for the October 16, 2014
____________________________________________


2
    See 18 Pa.C.S. §§ 2502(a), 2502(c), and 903(a)(1), (a)(2), respectively.




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hearing. Isaac states in his brief that “[t]he lower court held a hearing on

October 16, 2014 where no additional evidence was presented.” Isaac’s Brief

at 34.    On May 8, 2015, the PCRA court denied relief, and this appeal

followed.3

       Isaac raises the following issues for our review:

       A. Was appellate counsel constitutionally ineffective for
          failing to raise on direct appeal, or in her Statement of
          Errors Claimed of on Appeal, that [Isacc’s] waiver of his
          state and federal constitutional right to counsel was not
          knowing, intelligent, or voluntary, because the trial court
          conducted a constitutionally defective oral and written
          colloquy by failing to apprise [Isaac] of the elements of
          the offenses, failing to assure petitioner understood those
          rights to which he expressly denied understanding, and
          failing to receive a signed sufficiently detailed written
          waiver?

       B. Was appellate counsel ineffective for failing to properly
          raise on direct appeal that the trial court abused its
          discretion in permitting the Commonwealth to introduce
          evidence relating to Tolanda Williams’ purchase of
          weapons for Shamek Hynson and [Issac] other than the
          murder weapon (the .380), and permitting the testimony
          of Joseph LaJueunesse, as the purchases and the facts
          surrounding those purchases were not relevant for Rule
          404(b) purposes, were duplicative of other evidence
          introduced, and the prejudicial effect substantially
          outweighed the probative value?

       C. Was appellate counsel ineffective for failing to properly
          raise on appeal that the trial court erred in prohibiting the
          admission of Michael Fowler’s admission to Gregory
          Stacey and Taquan Isaac that he (Fowler) and Shamek

____________________________________________


3
  Isaac timely complied with the PCRA court’s order to file a concise
statement, pursuant to Pa.R.A.P. 1925(b).



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         Hynson killed Omar Reid as an exception to hearsay
         under Pennsylvania Rule of Evidence 804(b)(3)?

      D. Was appellate counsel ineffective for failing to raise on
         appeal that the trial court erred in permitting the
         Commonwealth to introduce [Isaac’s] statements to
         Lindsay Colon that [Isaac] “persuasive[ly]” told her to
         “plead the Fifth” when testifying against him because the
         statement was not relevant and unduly prejudicial as it
         was made in reference to a criminal matter unrelated to
         the instant charges, and the trial court failed to require a
         proper foundation as to its relevance over [Isaac’s]
         objection.

      E. Was appellate counsel ineffective for failing to raise in her
         1925(b) Statement of Errors Complained of on Appeal
         that the trial court abused its discretion by permitting the
         Commonwealth to impeach Michael Fowler with extrinsic
         evidence of an unadopted and unsworn summary written
         by a police officer of statements allegedly made during a
         proffer discussion?

      F. Was appellate counsel ineffective for failing to raise on
         appeal that the prosecutor committed misconduct during
         the closing argument by characterizing [Isaac] as a
         “player” and positing his guilt by association with the
         unrelated crimes of his witnesses, which independently
         and in the aggregate inflamed the passions of the jury
         causing undue prejudice?

      G. Did appellate counsel’s cumulative errors in failing to
         raise all of the above claims result in prejudice as the
         result of the trial would have been different if the trial
         court had not committed the errors alleged?

Isaac’s Brief at 5–7.

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the   evidence    of   record    supports    the     court's

determination    and    whether   its    decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011). This

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Court grants great deference to the findings of the PCRA court if the record

contains any support for those findings. Commonwealth v. Boyd, 923 A.2d

513, 515 (Pa. Super. 2007).

       Isaac first argues appellate counsel was ineffective in failing to

properly raise on direct appeal that the trial court’s waiver of counsel

colloquy was constitutionally defective and that his waiver of counsel was

not knowing, intelligent, and voluntary.         Isaac contends the trial court

conducted a constitutionally defective oral and written colloquy by failing to

apprise Isaac of the elements of the offenses, failing to assure Isaac

understood those rights which he expressly denied understanding, and

failing to receive a signed sufficiently detailed written waiver. Isaac argues

appellate counsel was ineffective because the challenge to his waiver of trial

counsel was solely on the basis that he was incompetent to do so.

       Even though Isaac’s appellate brief presented the claim, as follows:

“Whether the Defendant was denied his right to a fair trial when the Court

granted Defendant’s motion to Waive Counsel and to Proceed in Propria

Persona,”4 this Court found waiver. This Court stated:

       The next issue presented is whether the trial court erred in
       granting appellant’s request to waive counsel and proceed in
       propria persona. In his Rule 1925(b) statement, appellant
       claimed that the court “relied on his technical legal knowledge and
       courtroom skill and not his competency to stand trial.” (See
____________________________________________


4
 Commonwealth v. Isaac, 46 A.3d 830 (Pa. Super. 2012) (unpublished
memorandum, at 6, citing Isaac’s Brief at 7)



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       docket #148.) We find this issue to be waived as it is raised for
       the first time on appeal. See Pa.R.A.P. 302(a) (issues not raised
       in the lower court are waived and cannot be raised for the first
       time on appeal). Appellant did not object to proceeding pro se
       either prior to or during the time of trial. Nor has appellant
       challenged the validity of the waiver itself by suggesting
       that the trial court’s colloquy was defective. Instead, he
       has lodged an objection at the time of appeal based solely
       on his competency.

Commonwealth v. Isaac, 46 A.3d 830 (Pa. Super. 2012) (unpublished

memorandum, at 10) (emphasis supplied).

       The Commonwealth takes the position the issue has been “previously

litigated”   in this    Court and, therefore, should be   dismissed.       See

Commonwealth Brief at 15, citing 42 Pa.C.S. § 9543(a)(3).5 However, we

are not persuaded by the Commonwealth’s argument.          On direct appeal

Isaac challenged his self-representation by framing the issue in the concise

statement as “his competency to stand trial” — a distinctly separate issue

from the waiver of counsel colloquy claim. This Court pointed out that Isaac

had not challenged the colloquy as defective. Since Isaac could have raised

the issue of the colloquy on direct appeal, see Commonwealth v. Davido,

____________________________________________



5
    Section 9545(a)(3) requires that in order to be eligible for relief, a
petitioner must show that “the allegation of error has not been previously
litigated or waived.” 42 Pa.C.S. § 9545(a)(3). See also 42 Pa.C.S. §
9544(a)(2), (a)(3) (an issue has been previously litigated if “the highest
appellate court in which the petitioner could have had review as a matter of
right has ruled on the merits of the issue; or it has been raised and decided
in a proceeding collaterally attacking the conviction or sentence.”).




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868 A.2d 431, 437–438 (Pa. 2005),6 the issue has been waived and cannot

be litigated in a PCRA petition. See 42 Pa.C.S. § 9544(b) (issues are waived

for purposes of PCRA review if the petitioner could have raised them on

appeal). Nevertheless, Isaac’s claim that appellate counsel was ineffective

for failing to raise the issue on direct appeal is not waived. A claim of trial

court error is different from a collateral claim of ineffectiveness of appellate

counsel for failure to raise and preserve the issue for direct review.      See

Commonwealth v. Collins, 888 A.2d 564, 571 (Pa. 2005). Therefore, we

will proceed to consider Isaac’s claim of appellate counsel’s ineffectiveness

for failing to challenge the waiver of counsel colloquy on direct appeal.

       To obtain relief on a claim of ineffective assistance of counsel, a PCRA

petitioner must satisfy the performance and prejudice test set forth in

Strickland v. Washington, 466 U.S. 668, 687 (1984). This Court has

applied the Strickland test by looking to the following three elements that

must be satisfied: (1) the underlying claim has arguable merit; (2) counsel

had no reasonable basis for his actions or failure to act; and (3) the PCRA

petitioner suffered prejudice as a result of counsel's error, with prejudice

measured by whether there is a reasonable probability that the result of the
____________________________________________


6
  In Davido, the Pennsylvania Supreme Court ruled that “it is up to the trial
court, and not counsel, to ensure that a colloquy is performed if the
defendant has invoked his right to self-representation.” 868 A.2d at 437.
The Davido Court held that the issue of an insufficient waiver of counsel
colloquy could be raised on direct appeal and did not have to be raised as an
ineffective assistance of counsel claim. Id. at 437–438.



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proceeding would have been different.        Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987). Counsel is presumed to have rendered effective

assistance. Commonwealth v. Montalvo, 986 A.2d 84, 102 (Pa. 2009).

To succeed on a stand-alone claim of appellate counsel’s ineffectiveness, a

PCRA petitioner must demonstrate that appellate counsel was ineffective in

the manner by which he litigated the claim on appeal. Commonwealth v.

Koehler, 36 A.3d 121, 142 (Pa. 2012).

      Isaac argues that if appellate counsel adequately raised the waiver of

counsel colloquy issue on direct appeal, this Court would have awarded him

a new trial. See Isaac’s Brief, at 45.

      Pennsylvania Rule of Criminal Procedure 121 sets out the framework

for inquiry into a defendant’s request for self-representation.       The Rule

states, in relevant part:


      (A)(2) To ensure that the defendant’s waiver of the right to
      counsel is knowing, voluntary, and intelligent, the judge or
      issuing authority, at a minimum, shall elicit the following
      information from the defendant:

          (a) that the defendant understands that he or she has
          the right to be represented by counsel, and the right to
          have free counsel appointed if the defendant is indigent;

          (b) that the defendant understands the nature of the
          charges against the defendant and the elements of each
          of those charges;

          (c) that the defendant is aware of the permissible range
          of sentences and/or fines for the offenses charged;




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            (d) that the defendant understands that if he or she
            waives the right to counsel, the defendant will still be
            bound by all the normal rules of procedure and that
            counsel would be familiar with these rules;

            (e) that the defendant understands that there are
            possible defenses to these charges that counsel might be
            aware of, and if these defenses are not raised at trial,
            they may be lost permanently; and

            (f) that the defendant understands that, in addition to
            defenses, the defendant has many rights that, if not
            timely asserted, may be lost permanently; and that if
            errors occur and are not timely objected to, or otherwise
            timely raised by the defendant, these errors may be lost
            permanently.

Pa. R. Crim. P. 121(A)(2).

        Turning to the facts of the present case, on September 18, 2008, Isaac

filed in open court a pro se “motion to waive counsel and proceed in propria

persona.” Two oral colloquies followed. At the first colloquy on September

18, 2008, the trial court questioned Isaac by following a written colloquy

form. Isaac stated on the record that he did not know the elements of the

offenses, and the trial court ultimately decided that Isaac should continue

with his counsel, but left the issue open for Isaac to raise in the future. See

N.T., 9/18/2008, at 61–62. Thereafter, Isaac moved to proceed pro se on

October 2, 2008.        When the court attempted to question Isaac again by

following the written colloquy form,7 Isaac acted in a contumacious manner

____________________________________________


7
    Isaac did not sign a written colloquy form.




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J-S16016-16


and replied to the court’s questions with irrelevant answers such as “these

proceedings are void,” and “I stand by my affidavit of specific negative

averment.” The colloquy ended with the trial court granting Isaac’s request

to represent himself and allowing Isaac to waive counsel and proceed pro

se.8   See N.T., 10/2/2008 at 29. However, “although the colloquies were

extensive, [the trial court] did not specifically list for [Isaac] each element of

each of the charges against him.” PCRA Court Opinion, 5/8/2015, at 4–5.

       The Pennsylvania Supreme Court has indicated that it is “the trial

judge who [is] ultimately responsible for ensuring that the defendant is

questioned about the six areas discussed above and for determining whether

the defendant was indeed making an informed and independent decision to

waive counsel.” Davido, supra, 868 A.2d at 437 (quotations and citation

omitted). Likewise, it is the trial judge who has “the duty to ensure that a

defendant’s right to counsel was protected.”               Id. (quotations and citations

omitted).     Once a defendant expresses a desire to represent himself, the

“[f]ailure to conduct a thorough on-the-record colloquy before allowing a

defendant     to   proceed     to   trial   pro      se   constitutes   reversible   error.”

Commonwealth v. Houtz, 856 A.2d 119, 124 (Pa. Super. 2004) (citation

omitted) (vacating judgment of sentence where trial court’s waiver of

____________________________________________


8
  The trial court appointed the two attorneys representing Isaac as stand by
counsel. See N.T., 10/08/2009, at 29.




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counsel colloquy did not ensure appellant understood, inter alia, the nature

and elements of the charges and the range of penalties the court could

impose).

      The trial court must “cover all of the areas set forth in the comment to

Rule 121, to ascertain whether Appellant was executing a knowing,

voluntary and intelligent waiver of counsel.”       Houtz, supra at 130.

“Regardless of the defendant’s prior experience with the justice system, a

penetrating and comprehensive colloquy is mandated.” Id. at 124 (citation

omitted). “[W]e may not apply a totality analysis to a waiver of counsel

colloquy.”    Commonwealth v. Payson, 723 A.2d 695, 704 (Pa. Super.

1999).       Furthermore, “the appointment of standby counsel does not

eliminate or alter [Rule 121’s] requirement.”    Commonwealth v. Brazil,

701 A.2d 216, 219 (Pa. 1997).

      In Commonwealth v. Clyburn, 42 A.3d 296 (Pa. Super. 2012), this

Court held that Clyburn’s waiver of her right to counsel was inadequate and

awarded her a new trial where the trial court did not “specify the charges

brought against [Clyburn] and the elements of each of those charges.” Id.

at 301. This Court, in a footnote, rejected the Commonwealth’s argument

that the defendant could not prevail because she had failed to establish how




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she was prejudiced by lack of counsel.9 Clyburn was decided on February

27, 2012, two days before this Court affirmed Isaac’s judgment of sentence.

        Isaac asserts he “correctly argues precisely what the appellant argued

in Clyburn, that the waiver was not knowing, intelligent and voluntary

because the colloquy was ineffective.” Isaac’s Brief at 47. Isaac maintains
____________________________________________


9
    The Clyburn Court opined:

        Relying upon Commonwealth v. Meehan, 427 Pa. Super. 261,
        628 A.2d 1151, 1159 (Pa. Super. 1993), Commonwealth v.
        Davis, 393 Pa. Super. 88, 573 A.2d 1101, 1108 n.7 (Pa. Super.
        1990), Commonwealth v. Bastone, 321 Pa. Super. 232, 467
        A.2d 1339, 1341 (Pa. Super. 1983), and Commonwealth v.
        Carver, 292 Pa. Super. 177, 436 A.2d 1209, 1211 (Pa. Super.
        1981), the Commonwealth argues that Appellant is not entitled
        to relief because she fails to establish how she was prejudiced by
        the lack of counsel. See Commonwealth’s Brief at 11 n.2. We
        conclude these cases are inapposite because they involve
        matters with different procedural postures. Both Meehan and
        Davis were on appeal under the Post Conviction Relief Act
        ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. The cases of Bastone
        and Carver involved matters where counsel was not present at
        the preliminary hearing stages.

                                           ****

        Our research has revealed there is no need for a showing of
        prejudice when a defendant proceeded to trial without a legally
        sufficient waiver of her constitutional right to counsel. See
        Commonwealth v. Brazil, 549 Pa. 321, 701 A.2d 216 (1997)
        (granting new trial for defective waiver colloquy without
        analyzing whether the appellant suffered prejudice); Houtz, 856
        A.2d at 130 (same). See also Payson, 723 A.2d at 704 (“[A]ny
        shortcoming relative to this colloquy cannot be gauged to the
        quality of an accused’s self-representation nor justified on the
        basis of his prior experience with the system.”).

Id. at 302 n.3.



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that he must show “that counsel was deficient in failing to raise the

meritorious claim, and that this Court would have vacated his conviction on

direct appeal if not for counsel’s failure [and h]e succeeds on both prongs.”

Id.   Given that the trial court’s colloquy in this case did not specify the

elements of each of the charged offenses and that this Court stated Isaac

failed to raise the issue of validity of the waiver of counsel colloquy, we

conclude Isaac’s claim has arguable merit.

      It is significant, however, that the posture of this case differs from

Clyburn. Due to the discrepancy between Isaac’s counseled Rule 1925(b)

claim, which challenged “competency,” and the issue raised by counsel on

appeal, namely, a challenge to the court’s grant of Isaac’s motion to waive

counsel, we are presented with a PCRA claim of ineffective assistance of

counsel for waiving the issue of the adequacy of the Rule 121 colloquy, as

opposed to a preserved issue challenging the colloquy as in Clyburn.        As

such, appellate counsel’s manner of litigating the direct appeal is directly at

issue. However, the record does not reveal appellate counsel’s reasoning

since no witnesses testified at the PCRA hearing.

      The Pennsylvania Supreme Court has instructed that “a lawyer should

not be held ineffective without first having an opportunity to address the

accusation in some fashion.” Commonwealth v. Colavita, 993 A.2d 874,

895 (Pa. 2010).    “The fact that an appellate court, reviewing a cold trial

record, cannot prognosticate a reasonable basis for a particular failure to


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raise a plausible objection does not necessarily prove that an objectively

reasonable basis was lacking.”           Id. at 896, quoting Commonwealth v.

Spotz, 870 A.2d 822, 832 (Pa. 2005).

       We conclude that appellate counsel must have the opportunity to state

her reasons for the course of action taken when she filed the Rule 1925(b)

statement.10 Accordingly, we hold that an evidentiary hearing is necessary

to develop the record for this claim.          Further, as we are remanding for a

hearing concerning the existence of a reasonable basis for counsel’s actions,

the PCRA court should make any assessment of prejudice in the first

instance. See Spotz, at 835.

       Our discussion, however, does not end here, since Isaac has raised

various other claims of appellate counsel’s ineffectiveness.       Therefore, we

will address these claims sequentially. We reiterate that under the Pierce

test a petitioner must show: 1) the underlying claim is of arguable merit; 2)

no reasonable basis existed for counsel’s action or inaction; and 3) counsel’s

error caused prejudice such that there is a reasonable probability that the

result of the proceeding would have been different absent such error.

Pierce, supra, 527 A.2d at 975.



____________________________________________


10
    We note that Clyburn was not issued until after appellate counsel had
filed Isaac’s Rule 1925(b) statement and that the Clyburn Court specifically
addressed the issue of prejudice in a footnote to its decision.



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       In the second issue, Isaac claims appellate counsel was ineffective in

failing to challenge on direct appeal the trial court’s evidentiary ruling

permitting the Commonwealth to introduce evidence relating to Tolanda

Williams’ straw purchase of weapons for Shamek Hynson and Isaac, and

permitting the testimony of Joseph LaJueunesse.

       By way of background, the PCRA court explained:


       Tolanda Williams is the mother of Shamek Hynson’s child. At
       trial she testified that on October 14, 2004, she purchased the
       [.380] gun used in the murder of Omar Reid for Shamek
       Hynson. She also testified about other straw purchases of
       firearms that she made for Hynson, and for [Isaac], on October
       15, 2004.

PCRA Court Opinion, 5/8/2015, at 10 (record citations omitted). 11

       Isaac argues the evidence concerning his purchase of guns other than

the murder weapon was irrelevant and inadmissible.       We disagree.

       “The admissibility of evidence is within the sound discretion of the trial

court, and we will not disturb an evidentiary ruling absent an abuse of that

discretion. Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014).


____________________________________________


11
    We note that although Isaac’s argument, as stated, references the
testimony of Joseph LaJeunesse, Isaac does not specifically mention
LaJeunesse in his discussion of this ineffectiveness issue. LaJeunesse, owner
of the Varmint Hunters Den in South Carolina, testified that on October 15,
2004, Williams and several men came into his store. He stated Williams
bought a Tec-22, while three males waited for her in a Buick Riviera. On
cross-examination by Isaac, LaJeunesse identified Isaac as the driver of the
Buick. See N.T. 6/23/2009, at 153–169.



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      Pennsylvania Rule of Evidence 404, governing the admission of “prior

bad acts,” provides, in relevant part:


      (b) Other crimes, wrongs, or acts.

         (1) Evidence of other crimes, wrongs, or acts is not
         admissible to prove the character of a person in order to
         show action in conformity therewith.

         (2) Evidence of other crimes, wrongs, or acts may be
         admitted for other purposes, such as proof of motive,
         opportunity, intent, preparation, plan, knowledge, identity
         or absence of mistake or accident.

         (3) Evidence of other crimes, wrongs, or acts proffered
         under subsection (b)(2) of this rule may be admitted in a
         criminal case only upon a showing that the
         probative value of the evidence outweighs its potential
         for prejudice.

Pa.R.E. Rule 404(b)(1)-(3). “If such evidence is admitted, the trial court

must instruct the jury as to the limited purpose for which they may consider

the evidence of a defendant’s prior bad acts.” Commonwealth v. Davis,

737 A.2d 792, 796 (Pa. Super. 1999) (citation omitted).

      Here,   the   PCRA   court,   citing   Pa.R.E.   404(b),   rejected   Isaac’s

argument, opining:

      Instantly, the challenged evidence was properly admitted for the
      limited purpose of showing opportunity and possession of the
      murder weapon, and [Isaac’s] joint action with Shamek Hynson
      related to the firearm. In addition, the admission was subject to
      cautionary instructions to the jury. Twice, the Court instructed
      the jury it was not to regard this testimony as evidence of
      [Isaac’s] bad character or his criminal tendencies, but rather
      only for the limited purpose previously outlined.




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J-S16016-16


PCRA Court Opinion, 5/8/2015, at 10–11 (record citations omitted).             We

agree with the Rule 404(b) analysis of the PCRA court and its conclusion that

Isaac’s claim is without merit.    See e.g., Commonwealth v. Briggs, 12

A.2d 291 (Pa. 2011) (testimony of appellant’s previous purchase of gun that

was not the murder weapon admissible because it constituted part of the

sequence of events forming the history of this case). Accordingly, his claim

of appellate counsel’s ineffectiveness for failing to raise this issue on appeal

must fail.

      In his third claim, Isaac contends appellate counsel was ineffective for

failing to challenge the trial court’s evidentiary ruling that prohibited

evidence regarding Michael Fowler’s admission that he and Shamek Hynson

killed Omar Reid as an exception to hearsay under Pennsylvania Rule of

Evidence 804(b)(3).

      At the time of trial, Pa.R.E. 804(b)(3) provided:

      (b) Hearsay Exceptions. The following statements, as
      hereinafter defined, are not excluded by the hearsay rule if the
      declarant is unavailable as a witness:

                                      ***

      (3) Statements against interest. A statement which was at
      the time of its making so far contrary to the declarant’s
      pecuniary or proprietary interest, or so far tended to subject the
      declarant to civil or criminal liability, or to render invalid a claim
      by the declarant against another, that a reasonable person in the
      declarant’s position would not have made the statement unless
      believing it to be true. In a criminal case, a statement tending to
      expose the declarant to criminal liability is not admissible unless
      corroborating circumstances clearly indicate the trustworthiness
      of the statement.

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J-S16016-16


Pa.R.E. 804(b)(3).

        By way of background, Fowler testified for the defense.      On cross

examination by the prosecutor, Fowler testified, “I don’t remember none of

this.    I don’t remember me saying the statement [to police].”          N.T.,

6/29/2009, at 943.        Thereafter, Isaac attempted to elicit testimony from

defense witnesses Gregory Stacey and Taquan Isaac, who is Isaac’s

cousin,12 that Fowler had confessed to this murder when they were

incarcerated together. The prosecutor objected and the trial court precluded

the testimony. See N.T., 6/29/2009, at 967, 970–971.

        The next day, the trial court again considered Rule 804(b)(3), and

allowed Isaac to make a proffer from Taquan Isaac regarding Fowler’s

alleged admission. Despite the fact that Fowler had testified, the trial court

found that Fowler was “unavailable” based upon lack of memory, thereby

meeting the unavailability requirement of Rule 804(b).            See    N.T.,

6/30/2009, at 1023.         However, the trial court determined that Fowler’s

purported admission did not meet the trustworthiness requirement of Rule

804(b)(3), and was therefore inadmissible. Id. at 1030.

        Having reviewed Taquan Isaac’s proferred testimony, we find no

arguable merit in Isaac’s claim of trial court error. As the trial court noted

from Taquan’s testimony, Fowler’s statement to Taquon that “they took care

____________________________________________


12
     See N.T., 6/29/2009, at 973.



                                          - 20 -
J-S16016-16


of that,” was a “[p]retty broad statement.”        N.T., 6/30/2009, at 1028.

Furthermore, although Isaac argued to the court following the proffer that

Fowler was good friends with Taquon and would confide in him, Taquon’s

proffer did not specify his relationship with Fowler and explain why Fowler

would admit to Taquon that he was culpable for the murder that had

resulted in the conviction of Taquon’s cousin, Isaac.    See Commonwealth

v. Yarris, 731 A.2d 581, 591–592 (Pa. 1999) (Rule 804(b)(3) corroborating

circumstances lacking where the witness recalled only limited details of the

declarant’s alleged confession, did not know the alleged declarant very well,

and could not explain why the declarant would offer a confession to her).

Accordingly, this claim and the related ineffectiveness claim fail.

      In the fourth issue, Isaac contends appellate counsel was ineffective

for failing to challenge the trial court’s evidentiary ruling that allowed the

Commonwealth to introduce Isaac’s statements to Lindsay Colon that he

“persuasive[ly]” told her to “plead the fifth.”    Isaac’s Brief at 65.   Isaac

contends Colon’s testimony was irrelevant and no foundation was laid to

establish its relevance.   Specifically, Isaac argues that his statement to

Colon was made in reference to his Federal case, in which she was also a

witness. Isaac maintains the court’s suggestion that he could cross-examine

Colon on the relevance of the statement would force him to introduce his

unrelated criminal record to the jury.

      Here, on direct examination, Colon testified:


                                     - 21 -
J-S16016-16


      Q Again, Ms. Colon, during 2006 and 2007, did you have
      conversations with [Isaac] about you testifying against him?

      A Yes.

      Q And what did he say to you about that?

      A That I could possibly plead the Fifth.

      Q And how was he saying this to you?

      A Just persuasive.

      Q Was he trying to persuade you?

      A Yes.

N.T., 6/24/2009, at 438. On cross examination, regarding this issue, Isaac

asked Colon, “Did I tell you to plead the Fifth in this case,” to which Colon

responded “No.” Id. at 483.

      “[A]ny attempt by a defendant to interfere with a witness’s testimony

is   admissible   to    show     a   defendant’s       consciousness    of   guilt.”

Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. Super. 2007). As the

criminal   complaint   against   Isaac   was   filed   on   April   11, 2006,   the

Commonwealth established a proper foundation by showing that the

conversations occurred during 2006-2007, and relevancy by showing that

the conversations involved Isaac’s coaching Colon regarding her testifying

against him.   On this record, we conclude Isaac’s argument that the trial

court abused its discretion in admitting Isaac’s statements encouraging

Colon to “plead the Fifth” lacks arguable merit. Accordingly, Isaac’s claim of

appellate counsel’s ineffectiveness warrants no relief.



                                     - 22 -
J-S16016-16



      In the fifth issue, Isaac contends appellate counsel was ineffective for

failing to challenge on direct appeal the trial court’s ruling that permitted the

Commonwealth to impeach defense witness Michael Fowler with extrinsic

evidence of an unsigned and unverified police statement. Isaac relies on

Commonwealth v. Simmons, 622 A.2d 621 (Pa. 1995), stating:

      In Simmons, our Supreme Court declared: “A written report
      which is only a summary of the words of the victim and not
      verbatim notes from the victim cannot be used to impeach the
      victim on cross examination since it would be unfair to allow a
      witness to be impeached on a police officer’s interpretation of
      what was said rather than the witness’ verbatim words.” Id. at
      631[.]

Isaac’s Brief at 68.   Isaac maintains “[t]he trial court erred in permitting

impeachment through Michael Fowler’s alleged statement which was neither

his statement, nor signed nor adopted by him.        The purported statement

was only a summary written after the fact by Detective Winters. It was not

verbatim and not his statement.” Id. at 68.

      At trial, Isaac brought up Fowler’s March, 2006, statement to police

during his direct examination of Fowler.      He asked Fowler if he recalled

making a statement in March, 2006, to detectives. See N.T., 6/29/2009, at

928. Fowler answered, “No. I remember making a statement in [20]04.”

Id.

      On cross-examination, the Commonwealth asked Fowler about his

March, 2006 meeting with detectives. The following exchange occurred:




                                     - 23 -
J-S16016-16


     Q March 8th, 2006 you told detectives from Lancaster City
     Detectives that you went down to Coatsville on October 18 th of
     2004 in two cars; isn’t that correct?

     A. No.

     Q. You told them that in one car was Prince Isaac, Shamek
     Hynson and yourself, correct?

     A. No. I never been to Coatesville.

           MR. ISAAC: Objection. At this time I ask
           Commonwealth produce the statement to show the
           defendant- - I mean, excuse me, the witness.

           THE COURT: Fair enough.

           MR. BARRAZA: Certainly.

           THE COURT: Exhibit number please?

           MR. BARRAZA: This was marked number 94, Your Honor.

     BY MR. BARRAZA:

     Q. Mr. Fowler, is that the police report of the interview you had
     with Lancaster City detectives on March 8, 2006?

     A. Yes, that’s a police report.

     Q. That’s the date you met with Detective Switzer and Detective
     Winters; isn’t that correct?

     A. I’m not sure.

     Q. But you did meet with them?

     A. I did meet with them.

     Q. Yes. And you spoke with them about the incidents of October
     18, 2004; isn’t that correct?

     A. I’m not sure.


                                       - 24 -
J-S16016-16


      Q. And you told them that you went to Coatesville on October
      18, 2004 in two vehicles; isn’t that correct?

      A. Never been to Coatesville.

      Q. You told them that in one vehicle -- Prince Isaac, Shamek
      Hynson and Michael Fowler were in one vehicle; isn’t that
      correct?

      A. That’s not correct.

      Q. In the other vehicle was Lindsay, Shanika?

             MR. ISAAC: Your Honor, I object at this time. This is
             improper impeachment. Witness did not sign the
             statement. Witness says he doesn’t recall. This is
             improper.

N.T. 6/29/2009, at 936–938 (emphasis added). Thereafter, the trial court

permitted the Commonwealth to cross examine Fowler on the police

statement.

      We find no arguable merit in Isaac’s claim. The fallacy of Isaac’s

argument is that the Commonwealth, in questioning Fowler about his prior

inconsistent statement, did not attempt to introduce the police document to

impeach him. See Pa.R.E. 613(a) (“A witness may be examined concerning

a prior inconsistent statement made by a witness to impeach the witness’s

credibility.”). Rather, the introduction of the extrinsic evidence of the police

statement resulted from Isaac’s request that the Commonwealth show

Fowler the document during the Commonwealth’s cross-examination of

Fowler. Isaac himself opened the door to the Commonwealth’s questioning

Fowler in this context. Therefore, we conclude there is no arguable merit in




                                      - 25 -
J-S16016-16



Isaac’s claim of trial court error.     It follows that his claim of appellate

counsel’s ineffectiveness fails.

      In his penultimate issue, Isaac contends that appellate counsel was

ineffective for failing to raise on direct appeal the claim that “the prosecutor

committed misconduct by calling [Isaac] a ‘player’ and positing his guilt by

association with the unrelated crimes of his witnesses.” Isaac’s Brief at 71.

      When the issue of prosecutorial misconduct is raised on direct appeal,

      our inquiry “center[s] on whether the defendant was deprived of
      a fair trial, not deprived of a perfect trial.” Commonwealth v.
      LaCava, 542 Pa. 160, 666 A.2d 221, 231 (Pa. 1995) (citing
      Commonwealth v. Holloway, 524 Pa. 342, 572 A.2d 687, 693
      (Pa. 1990)). It is well-settled that a “prosecutor must be free to
      present his or her arguments with logical force and vigor.”
      Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277,
      306 (Pa. 2011). Comments grounded upon the evidence or
      reasonable inferences therefrom are not objectionable, nor are
      comments that constitute “oratorical flair.” Id. at 307.
      Furthermore, the prosecution must be permitted to respond to
      defense counsel’s arguments. Id. Consequently, this Court has
      permitted vigorous prosecutorial advocacy provided that “there
      is a reasonable basis in the record for the [prosecutor's]
      comments.” Commonwealth v. Robinson, 581 Pa. 154, 864
      A.2d 460, 516-17 (Pa. 2004). A prosecutor’s remarks do not
      constitute reversible error unless their unavoidable effect would
      prejudice the jurors, forming in their minds fixed bias and
      hostility toward the defendant so that they could not weigh the
      evidence objectively and render a true verdict. Commonwealth
      v. Bond, 539 Pa. 299, 652 A.2d 308, 315 (Pa. 1995). Finally, we
      review the allegedly improper remarks in the context of the
      closing argument as a whole. LaCava, 666 A.2d at 235.

Commonwealth v. Sneed, 45 A.3d 1096, 1109–1110 (Pa. 2012).

      The first alleged instance of prosecutorial misconduct occurred during

the closing when the prosecutor was discussing Isaac’s testimony:


                                      - 26 -
J-S16016-16


      MR. CONTE: … We already know that Mr. Isaac is by his own
      admission a liar. This isn’t me saying it. It’s the defendant
      saying it. …

                                       ****

      He is not even honest in his personal life. He testified that he
      had I think if I can remember the number at least four girlfriends
      at least. That was –

      MR. ISAAC: Objection, Your Honor.          There was no testimony
      that I had four girlfriends.

      MR. CONTE: Well, let’s say four different women in at least two
      different states.  I guess it is a question of semantics –
      girlfriends, women. You know what they call someone who has
      women everywhere? They call him a player. They call him a
      player.

      MR. ISAAC: Objection, Your Honor. That’s not in evidence.

      THE COURT: It’s argument, sir. Objection is overruled.

N.T., 7/1/2009, at 1358, 1362. The second alleged instance of prosecutorial

misconduct occurred during the closing, as follows:

      MR. CONTE: The defendant stood up here for most of his closing
      argument and did everything he could to assassinate the
      character of those witnesses. Who do you think witnesses in [a]
      case like this are going to be? Think about that. You think I’m
      going to parade a guidance counsellor, veterinarian, school
      teacher as witnesses?       Are those the type of people that
      associated with the defendant?

Id., at 1387.

      Based on our review of the prosecutor’s closing, we agree with the

PCRA court that neither comment was improper. The “player” comment is

plainly oratorical flair.   In addition, the prosecutor’s argument regarding the

Commonwealth’s witnesses who were associated with Isaac was fair

                                       - 27 -
J-S16016-16


response to Isaac’s closing argument attacking those witnesses.        As such,

this issue is lacking in arguable merit and cannot support an ineffectiveness

claim.

      Finally, Isaac claims that appellate counsel’s cumulative errors in

failing to raise all of the above claims resulted in prejudice. When post-

conviction claims are rejected for lack of merit or arguable merit, no basis

exists for an accumulation claim. Commonwealth v. Koehler, 36 A.3d 121,

161 (Pa. 2012). “When the failure of individual claims is grounded in lack of

prejudice, however, then the cumulative prejudice from those individual

claims may properly be assessed.” Id.

      Although we remand for an evidentiary hearing on Isaac’s first claim,

he cannot ultimately prevail, i.e., gain a new trial, on his accumulation claim.

This is so because he has only one claim with merit or arguable merit. In this

appeal, we have found that all other substantive claims of ineffective

assistance lack arguable merit.   Therefore, it is impossible for Isaac to show

cumulative prejudice.

      Based on the above, we affirm the PCRA court’s order in part, and

vacate in part, and remand for an evidentiary hearing as stated herein.

      Order affirmed in part and vacated in part. Case remanded for further

proceedings. Jurisdiction relinquished.




                                     - 28 -
J-S16016-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2016




                          - 29 -
