J. S30019/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                  v.                    :
                                        :
ARTHUR JOHNSON,                         :          No. 545 EDA 2015
                                        :
                       Appellant        :


              Appeal from the PCRA Order, January 22, 2015,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0014152-2008


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 06, 2016

     Arthur Johnson appeals from the order entered in the Court of

Common Pleas of Philadelphia County that dismissed his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”). We affirm.

     The PCRA court set forth the following:

                 On May 9, 2008[,] [a]ppellant was arrested
           and charged with [m]urder and weapons offenses[,]
           and on February 12, 2010, following a jury trial
           before this Court, he was adjudged guilty of Murder
           of the First Degree and Possessing Instruments of
           Crime.    On March 26, 2010[,] [a]ppellant was
           sentenced      to   an    aggregate    term    of  life
           imprisonment, and on March 27, 2012[,] the
           Superior Court of Pennsylvania affirmed the
           Judgment of Sentence.          Commonwealth v. []
           Johnson, 949 EDA 2010.            On April 20, 2012[,]
           [a]ppellant filed a Petition for Allowance of Appeal in
           the Supreme Court of Pennsylvania.                  On
J. S30019/16


           November 8, 2012[,] the Petition for Allowance of
           Appeal was denied.      Commonwealth v. []
           Johnson, 200 EAL 2012.

                  Appellant filed the instant Petition pursuant to
           the [PCRA] on November 13, 2013[,] and on
           February 12, 2014[,] he filed an Amended PCRA
           Petition. On April 16, 2014[,] the Commonwealth
           filed a Motion to Dismiss the PCRA Petition[,] and on
           September 24, 2014[,] the Commonwealth filed a
           Supplemental Motion to Dismiss. Appellant was sent
           Notice pursuant to Pa.R.Crim.P. 907 on December 8,
           2014, and on January 22, 2015[,] the PCRA Petition
           was dismissed.       This timely appeal followed on
           February 19, 2015.

PCRA court opinion 6/19/15 at 1-2 (footnote omitted).

     Appellant raises the following issues for our review:

           [1.]   Whether     the   trial court    violated    the
                  confrontation clause and abused its discretion
                  when it allowed the prosecution to introduce
                  into evidence a statement of the non-testifying
                  codefendant that referred to the appellant as
                  “the other guy” in a two defendant jury trial,
                  causing substantial harm to the appellant[?]

           [2.]   Whether trial counsel was ineffective for failing
                  to   object    to  the    double   hearsay      in
                  non-testifying codefendant’s written statement
                  to police, causing substantial harm and undue
                  prejudice to the appellant[?]

           [3.]   Whether trial counsel was ineffective for failure
                  to strike reference to Baz Parker in the
                  [s]tatement of non-testifying codefendant,
                  causing substantial harm and undue prejudice
                  to the appellant[?]

           [4.]   Whether trial counsel was ineffective for failing
                  to object to references to the appellant as “the
                  other guy” in prosecutor’s closing, causing



                                     -2-
J. S30019/16


                       substantial harm and undue prejudice to the
                       appellant[?]

               [5.]    Whether trial counsel was ineffective for failing
                       to object to the trial court’s Spencer Charge,
                       causing substantial harm and undue prejudice
                       to the appellant[?]

               [6.]    Whether counsel for direct appeal was
                       ineffective for failing to raise issues to correct
                       the errors of trial as to the double hearsay,
                       and to codefendant’s counsel, who named the
                       appellant as the shooter in his opening,
                       causing substantial harm and undue prejudice
                       to the appellant[?]

Appellant’s brief at 5-6.

      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.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.           Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).          We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.             Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).                  In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

      To be eligible for PCRA relief, a petitioner must show, among other

things, that the claims of error have not been previously litigated.

42 Pa.C.S.A. § 9543(a)(3).         An issue has been previously litigated if “the



                                          -3-
J. S30019/16


highest appellate court in which the petitioner could have had review as a

matter of right has ruled on the merits of the issue.” Id.; Commonwealth

v. Spotz, 47 A.3d 63, 76 (Pa. 2012).

        In his first issue on appeal, appellant complains that the trial court

abused its discretion when it permitted the prosecution to introduce a

statement of a non-testifying co-defendant that referred to appellant as

“the other guy.”      Appellant raised this issue on direct appeal.         See

Commonwealth          v.   Johnson,     No.   949    EDA    2010,   unpublished

memorandum (Pa.Super. filed March 27, 2012).            Therefore, because this

issue was previously litigated, it is not properly before us.

        Under the guise of ineffectiveness, appellant’s fourth issue alleging

that trial counsel failed to object to a supposed Bruton1 violation is belied

by the record, and the Bruton issue was previously litigated.

        Appellant’s four remaining issues assert claims of ineffective assistance

of trial counsel and direct appeal counsel.

              In evaluating claims of ineffective assistance of
              counsel, we presume that counsel is effective.
              Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
              435, 441 (Pa. 1999).            To overcome this
              presumption, Appellant must establish three factors.
              First, that the underlying claim has arguable merit.
              See Commonwealth v. Travaglia, 541 Pa. 108,
              661 A.2d 352, 356 (Pa. 1995). Second, that counsel
              had no reasonable basis for his action or inaction.
              Id. In determining whether counsel’s action was
              reasonable, we do not question whether there were
              other more logical courses of action which counsel

1
    Bruton v. United States, 391 U.S. 123 (1968).


                                       -4-
J. S30019/16


           could have pursued; rather, we must examine
           whether counsel’s decisions had any reasonable
           basis.      See Rollins, 738 A.2d at 441;
           Commonwealth v. (Charles) Pierce, 515 Pa. 153,
           527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
           must establish that he has been prejudiced by
           counsel’s ineffectiveness; in order to meet this
           burden, he must show that ‘but for the act or
           omission in question, the outcome of the proceedings
           would have been different.’” See Rollins, 738 A.2d
           at 441 (quoting Travaglia, 661 A.2d at 357). A
           claim of ineffectiveness may be denied by a showing
           that the petitioner’s evidence fails to meet any of
           these prongs.       Commonwealth v. (Michael)
           Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
           2001); Commonwealth v. Basemore, 560 Pa. 258,
           744     A.2d    717,    738      n.23    (Pa.    2000);
           Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
           693, 701 (Pa. 1998) (“If it is clear that Appellant has
           not demonstrated that counsel’s act or omission
           adversely affected the outcome of the proceedings,
           the claim may be dismissed on that basis alone and
           the court need not first determine whether the first
           and second prongs have been met.”). In the context
           of a PCRA proceeding, Appellant must establish that
           the ineffective assistance of counsel was of the type
           “which, in the circumstances of the particular case,
           so undermined the truth-determining process that no
           reliable adjudication of guilt [or] innocence could
           have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). See
           also (Michael) Pierce, 786 A.2d at 221-22;
           Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d
           326, 333 (Pa. 1999).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

     Having    determined,   after   careful   review,   that   the   learned

Judge Gwendolyn N. Bright, in her June 19, 2015 Rule 1925(a) opinion, ably

and comprehensively disposes of appellant’s issues on appeal, with




                                     -5-
J. S30019/16


appropriate reference to the record and without legal error, we affirm on the

basis of that opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/2016




                                    -6-
                                                                                                           Circulated 04/27/2016 04:40 PM



                                                                                                            FILED
                                IN THE COURT OF COMMON PLEAS                                                  JUN 1 9 2015
                                    FlRST .IUDlCIAL OISTRlCT                                          Criminaf Appeals Unit
                                     PHILADELPHIA COUNTY                                            FirstJudicia\ District of PA
                                    CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANlA                                                     CP-5J-CR-0014152-2008

                         CP-Sl·CR-0014152-2008 Comm. v. JQlinson, l\llh1.r
                                             Opa'loon


                  v.
                              111111111111111 Ill I
                                        7309673651
                                                             I IIIII
                                                                             : SUPERIOR COURT OF PENNSYLVANIA
         ARTHUR JOHNSON                                                                545 EDA 2015


                                                            OPINION

BRIGHT, J.
         On May 9, 2008 Appellant was arrested and charged with Murder and weapons offenses,

and on February 12, 2010, following a jury trial before this Court, he was adjudged guilty of

Murder of the First Degree and Possessing Instruments of Crime. On March 26, 2010 Appellant

was sentenced to an aggregate term of life imprisonment, and on March 27, 2012 the Superior

Court of Pennsylvania affirmed the Judgment of Sentence. Commonwealth v. Arthur Johnson, 949

EDA 2010. On April 20, 2012 Appellant filed a Petition for Allowance                        or Appeal    in the Supreme

Court of Pennsylvania. On November 8. 2012 the Petition for Allowance of Appeal was denied.

Commonwealth v. Arthur Johnson. 200 EAL 2012.

          Appellant filed the instant Petition pursuant to the Post Conviction Relief Act (hereinafter

 PCRA)1 on November 13, 2013 and on February 12, 2014 he filed an Amended PCRA Petition.

 On April l6, 2014 the Commonwealth filed a Motion to Dismiss the PCRA Petition and on
                                                     '
 September 24, 2014 the Commonwealth filed a Supplemental Motion to Dismiss. Appellant was




 1   42 Pa.C.S.A.§9541, et seq.
sent Notice pursuant to Pa R.Crim.P. 907 on December 8, 2014, and on January 22, 2015 the

PCRA Petition was dismissed. This timely appeal followed on February 19, 2015.

       Pursuant to Pa. R .A.P. l 925(b} Appellant was instructed to file a Statement of Errors

Complained Of On Appeal.        Appellant responded complaining that the Court violated the

confrontation clause to the Constitution of the United States when it allowed the prosecution to

introduce the statement of codefendant Tyrone Wright in violation of Bruton v. United States, 391

U.S. 123 ( 196~ l; that trial counsel rendered ineffective assistance in multiple respects; and that

appellate counsel rendered ineffective assistance in failing to raise the issue involving the alleged

Bruton violation.

                                                     FACTS

       The facts are summarized in the Court's 1925(a) Opinion on direct appeal and incorporated

in the Opinion of the Superior Court of Pennsylvania. Commonwealth v. Arthur Johnson, No. 949

EDA 2010@ 1-3. Decedent, Donnie Skipworth, and the decedent's brother, Dion Skipworth,

lived with their family at 1328 N. Newkirk Street, Philadelphia, PA. Appellant, co-defendant

Tyrone Wright, and their accomplice, Abbas Parker (AKA, Baz), associated on a daily basis on

nearby Hollywood Street. N.T. 2/01/2010@ 151-152,          170-17l.2 Dion Skipworth testified that

from 2005 until January 2008, except for a brief period when Decedent was employed in

Lancaster, PA, he and Decedent sold drugs in the 1300 block of Newkirk Street and established

the area as their territory. Id. @ 161,   164-168.

        On May 4, 2008. approximately 12:00 AM, Decedent, Dion, and their two cousins, were

selling drugs at the corner of the 1300 bJ+>ck of Newkirk Street, when Dion observed Appellant



2  "N.T.'' refers to the Notes of Testimony taken at the Motion to Suppress and jury trial before the
 I lonorable Gwendolyn N. Bright on January 26, 20 l O - February 9, 2010 and the Sentencing on
 May 13, 2010. The specific <'·11c to which reference is made follows the designation "N.T.''
walk toward them and Appellant began firing his gun al Decedent.         Id.@   172, 177. Dion testified

that after the first round of gunshot he and his cousins fled and five minutes later he returned to the

scene   finding Decedent lying on the street with bullet holes~ in his jeans and throughout his jacket.

Id.@ 181.

         Detective George Fetters later interviewed Aaron Taylor who testified at trial but was a

reluctant witness. Taylor grew up in the same neighborhood and attended school with Decedent

and the two were friends. N    r.   1/28 '2010@ 81-82.   Taylor explained that the murder was in

retaliation for the killing of a mutual associate who he identified as Darnell. Id.@ 82. Ile stated:

        "He was killed for retaliation for what happened to Darnell. He was another friend of mine.
        We all grew up together down on Newkirk and Thompson. The word was that Donnie got
        him killed. This was about one and a half to two years ago on the same block. See, they
        was selling drugs together out there, and Iguess that Darnell got big headed and Donnie
        didn't like it. So the word was that he (Donnie) had somebody kill Darnell. I guess it was
        over the money that they were making out there. You see, Donnie was always the pretty
        boy type and Darnell was the muscle, and I guess they just got in each other's way."

Id. @81-82.

        Taylor further testified that he was on Newkirk Street a few weeks after the shooting death

and that he heard Appellant admit that he killed Decedent. Taylor stated:

        "Look, I was down there on '\;e\.\.kirk like one or two weeks after Donnie [Decedent] was
        killed and I heard this young boy, Art [co-defendant Johnson], talking about how he did it,
        he killed Donnie, and how nobody had to worry about what he (Donnie) had done to
        Darnell. Sec, Artie is supposed to be cousins somehow with Darnell and he said he would
        get Donnie for what he did to his cousin, Darnell. ... He [Appellant] from the group they
        call the Body Snatchers. They from 29th and Jefferson Streets. They rap, they gangbang,
        they on You Tube Anywhere Y,OU see the BS initials, that's them; it's all over that way."

Id.@ 88. In his statement to Detective Burns co-defendant Johnson likewise acknowledged that

the motive for the murder was retaliation .. N.T.213/2010    ~ 58.

        Dr. Sam Gulino. Chief Me<lidt Examiner for the City of Philadelphia, testified that his

office performed a postmortem examination on Decedent's remains on the day of the murder and
concluded that Decedent died of multiple gunshot wounds and further concluded that the cause of

death was homicide.    Id.   @ I 7.

                                             DISCUSSION

       Appellant complains that the Court committed en-or in allowing the prosecution to

introduce the statement of co-defendant Tyrone Wright. He asserts that the co-defendant did not

testify at trial and that the statement was insufficiently redacted when read to the jury by

Philadelphia Police Detective Bums. This claim is without merit.

       42 Pa.C.S. § 9543 provides. in pertinent part, as follows:

       "§ 9543. Eligibility for relief

       (a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead
       and prove by a preponderance of the evidence all of the following:

       (1) That the petitioner has been convicted of a crime under the laws of this Commonwealth
       and is at the time relief is granted:

               (i) currently serving a sentence of imprisorunent, probation or parole for the crime;

               (ii) awaiting execution of a sentence of death for the crime; or

               (iii) serving a sentence which must expire before the person may commence
               serving the disputed sentence.

       (2) That the conviction or sentence resulted from one or more of the following:

               (i) A violation of the Constitution of this Commonwealth or the Constitution or
               laws of the United States which, in the circumstances of the particular case, so
               undermined the truth-determining process that no reliable adjudication of guilt or
               innocence could have taken place.

              (ii) Ineffective assistance of counsel which, in the circumstances of the particular
              case, so undermined the truth-determining process that no reliable adjudication of
              guilt or innocence could have taken place.

              (iii) A plea of guilty unlawfully induced where the circumstances make it likely
              that the inducement caused the petitioner to plead guilty and U1e petitioner is
              innocent.
                                         '
              (iv) The improper obstruction by government officials of the petitioner's right of
              appeal where a meritorious appealablc issue existed and was properly preserved in
              the trial court.
                 (vi) The unavailability at the time of trial of exculpatory evidence that has
                 subsequently become available and would have changed the outcome of the trial if
                 it had been introduced.

                (vii) The imposition   of a sentence greater than the lawful maximum.

                (viii) A proceeding in a tribunal without jurisdiction.

        (3) That the allegation of error has not been previously     litigated or waived.

        (4) That the failure to litigate the issue prior to or during trial, during unitary review or on
        direct appeal could not have been the result of any rational, strategic or tactical decision by
        counsel."

        The allegation of error complained    of has been previously      litigated or waived and

Appellant is not eligible   for PCRA relief. 42 Pa.C.S.   § 9543(a)(3).   Commonwealth v. Arthur

Johnson, 949 EDA 20 l O (Pa. Super. 2012) @ 9-1 l. Error was not committed.

        Appellant next complains of multiple incidents of ineffective assistance of counsel. These

claims are without merit.

        The standard of review when presented with a challenge to a ruling by the PCRA Court

dismissing Appellant's claims for PCRA relief is whether the PCRA Court's ruling is supported

by the record and is free of legal error. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790 (2007),

cited in. Commonwealth v. Fitzgerald, 2009 PA Super. 154, 979 A.2d 908, 910 (PA Super 2009).

Where Appellant asserts claims of ineffective assistance of counsel, the appellate Courts of the

Commonwealth of Pennsylvania have instructed as follows: .

        "In order to obtain relief under the PCRA premised upon a claim that counsel was
        ineffective, a petitioner must establish beyond 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. This requires the petitioner
        demonstrate that: (I) the underlying claim is of arguable merit; (2) counsel had no
        reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced
        by counsel's act or omission. It~s presumed that counsel is effective, and places upon the
        appellant the burden of proving otherwise. Counsel cannot be deemed ineffective for
        failing to pursue a meritless claim." Commonwealth v. Payne, supra.@ 905-906 (citations
        and quotations omitted). See also, Commonwealth v. Pierce, 786 A.2d 203 (Pa. 2001).
        Appellant first complains that trial counsel rendered ineffective assistance    in failing to

object to double hearsay contained in codefendant Tyrone Walker's statement         to Detective   Burns

and that appe11ate counsel rendered ineffective assistance in failing to raise this issue on direct

appeal. These claims are without merit.

        It is well settled that the decision to admit or exclude evidence is committed to the trial

court's sound discretion and that evidentiary rulings will only be reversed upon a showing that a

court abused that discretion. See, Commonwealth v. Koch, 106 A.3d 705, 2014 WL 7392238 (Pa.

2014). See also, Commonwealth v. Levanduski, 907 A.2d 3, 2006 PA Super 204, P26 (Pa. Super.

Ct. 2006). In Koch, supra, the Supreme Court of Pennsylvania stated:

           "The standard of review governing evidentiary issues is settled. The decision to admit
       or exclude evidence is committed to the trial court's sound discretion, and evidentiary
       rulings will only be reversed upon a showing that a court abused that discretion. A finding
       of abuse of discretion may not be made merely because an appellate court might have
       reached a different conclusion, but requires a result of manifest unreasonableness, or
       partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
       Matters within the trial court's discretion are reviewed on appeal under a deferential
       standard. and any such rulings or determinations will not be disturbed short of a finding
       that the trial court committed a clear abuse of discretion or an error of law controlling the
       outcome of the case."

Commonwealth v. Koch, supra, 2014 WL 7392238@ 9.

       Pa.R.E. 802 provides that Hearsay is not admissible into evidence except as provided by

the Pennsylvania Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme

Court, or by statute. Pa.R.E. 801 defines "Hearsay" as a statement the declarant does not make

while testifying at trial, and a party offers in evidence lo prove the truth of the matter asserted in

the statement. Pa.RE. 805 provides that double hearsay, or hearsay within hearsay, is not
                                          '
excluded by the rule against hearsay if each part of the combined statements conforrns with an

exception to the hearsay rule.
                                                                                                       .....




        In the case sub Judice, the statement co-defendant Wright gave Detective Bums was

received into evidence solely against the co-defendant and the jury was instructed on two separate

occasions that the jury must not consider the statement as evidence against Appellant and in no

way to use the statement against Appellant. N.T. 2/4/20 l O @J 69-170. Trial counsel cannot be

found ineffective for failing to raise objections to evidence not offered against his client and

appellate counsel cannot be deemed ineffective for raising the claim on direct appeal. Moreover,

Appellant has failed to demonstrate that but for counsel's failure to make such an objection the

outcome of the proceedings would be different, i.e., that he was prejudiced by trial counsel's

inaction or that appellate counsel's failure to raise the issue on direct appeal inured to his

detriment . Error was not committed.

       Similarly, Appellant's complaint that the trial counsel rendered ineffective in failing to

strike references to Baz Parker in co-defendant Wright's statement to Detective Burns is without

merit Wright's statement was offered solely against Wright. The content of the statement was not

introduced into evidence for any other purpose and the jury was instructed accordingly.

Additionally, Appellant has failed to demonstrate that but for trial counsel's failure to strike

references to Baz Parker in co-defendant Wright's statement the outcome of the proceedings

would be different. He has failed lo demonstrate prejudice and is not entitled to PCRA relief. Error

was not committed.

       Appellant also complains that trial counsel rendered ineffective assistance in failing to

object to references to 'the other guy' in the prosecutor's closing. fhis claim is without merit.

       As hereinbefore discussed, the Superior Court of Pennsylvania considered the issue of the
                                       '
prosecutor's use of 'the other guy' reference in closing argument on direct appeal and held that

Appellant's claims in connection therewith are without merit. Appellant has failed to demonstrate
                                                                                                         •
that the allegation of error he complains of has not been previously litigated or waived. Error was

not committed.

        Appellant next claims that trial counsel rendered ineffective assistance in failing to object

to the Court's Spencer charge. This claim is without merit.

        In the instant case, after three days of deliberation and several requests for additional

instructions the jurors stated that they were unable to reach a unanimous verdict on the charges

against Appellant and that there was no reasonable probability of reaching a unanimous verdict as

to him. Id. @ 10-11. The Court further instructed the jury as follows:

       "Obviously, you are having some difficulty resolving the issues raised. On the one hand,
       that difficulty is an indication of the sincerity and objectivity with which you have
       approached your duties. On the other hand, it may be the result of confusion in your minds
       about the instructions that were given with regard to the law and its application to the facts
       of this case ....

       ... I would like to explain to you or to emphasize to each of you the importance of a verdict
       to Defendant Johnson, to the Commonwealth, and also take into account the time, the
       anxiety, the expense of having to retry this matter, and taking that into account, you realize,
       of course, that, first of all, any verdict you return must be unanimous. Secondly, you have a
       duty to consult with one another and deliberate with a view towards reaching an agreement
       if it can be done without violence to your individual judgment, and that each juror must
       decide the case for himself or herself, but only after an impartial consideration of the
       evidence with the other jurors. As jurors you should not hesitate to reexamine your own
       views and change your opinion if you think it is erroneous, and, as a juror, you should not
       surrender your honest convictions as to the weight or effect of the case's evidence because
       of the opinion of the other jurors or for the mere purpose of returning a unanimous verdict.
       Keeping these instructions in mind, I am going to send you back to deliberate further with
       regard to the Defendant Johnson so that you can give further consideration to the evidence
       and to the charges of the Court to see if you can arrive at a verdict."

N.T. 2/9/20 l O@ 9-1 l.

       In Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (Pa. 1971 ), the Supreme Court of

                                        '
Pennsylvania considered proper jury instructions to be given in cases where the jury cannot reach

a unanimous verdict and there is no reasonable probability of the jury reaching a unanimous

verdict. The important factor in evaluating the supplemental jury instruction, or Spencer Charge, is
••


      that it not be coercive. Commonwealth v. Spencer, supra, 442 Pa. 328@ 335. See also,

      Commonwealth v. Greer, 597 Pa. 373, 387, 951 A.2d 346 (Pa. 2008). In tbe instant case the

      Court's instruction to the jury was in accordance with Pennsylvania Suggested Standard Criminal

     Jury Instruction 2.09 (Pa-JlCRIM 2.09); was not coercive; and was therefore not objectionable.

     Trial counsel will not be deemed ineffective for failing to pursue a meritless claim. Error was not

     committed.

             Finally, Appellant complains that appellate counsel rendered ineffective assistance in

     failing to raise a Bruton violation regarding the co-defendant's counsel naming Appellant as the

     shooter. This claim is belied of record and is without merit.

             To be eligible for relief under the PCRA a petitioner must demonstrate that the allegation

     of error has not been litigated or waived. 42 Pa.C.S. § 9543(a)(3). This allegation of error was

     raised has been previously litigated on direct appeal and Appellant is not eligible for PCRA relief

     based on this claim. Commonwealth v. Arthur Johnson, 949 EDA 20 l O (Pa. Super. 2012) @ 9-1 I.

     Error was not committed.

                                                 CONCLUSION

            For the foregoing reasons, error was not committed and the Judgment of Sentence should

     be affirmed.

                                                          BY THE COURT




                                             '
