                                  [J-81-2014]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

                  SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.


COMMONWEALTH OF PENNSYLVANIA, :               No. 493 CAP
                              :
              Appellee        :               Appeal from the Order of the Court of
                              :               Common Pleas of Philadelphia County,
                              :               Criminal Division, entered on October 18,
          v.                  :               2005 at No. 9611-0316 1/2
                              :
                              :               SUBMITTED FOLLOWING REMAND:
RASHEED SIMPSON,              :               August 13, 2014:
                              :
              Appellant       :


                                         OPINION


MADAME JUSTICE TODD                                     DECIDED: March 25, 2015
        In this Opinion, our Court addresses three issues over which we retained

jurisdiction following a remand to the Post Conviction Relief Act (“PCRA”)1 court on

March 26, 2013 for further proceedings, as warranted, and for the preparation of an

opinion.    Commonwealth v. Simpson, 66 A.3d 253 (Pa. 2013).            The questions on

remand involved two allegations of ineffective assistance of trial counsel. The PCRA

court, after holding a hearing on February 21, 2014, rendered an opinion in which it

resolved these issues against Appellant Rasheed Simpson, and, thus, denied him relief.

With the remand proceedings now complete, we now may also consider the issue of

whether Appellant is entitled to relief based on the cumulative prejudicial effect of all of



1
    42 Pa.C.S.A. §§ 9541-9546.
the alleged errors he has set forth. For the reasons that follow, we hold that the PCRA

court properly resolved the ineffectiveness claims before it, and we conclude that

Appellant is not entitled to relief on his claim of cumulative prejudice. Thus, we affirm

the order of the PCRA court and dismiss all of Appellant’s claims.

        By way of brief background, in December 1997, as a result of the 1993

kidnapping and execution-style murder of Andrew Haynes, Appellant was convicted of

first-degree murder, criminal conspiracy, kidnapping, robbery, and possession of an

instrument of crime.     Thereafter, a jury sentenced Appellant to death.          Our Court

affirmed the judgment of sentence on direct appeal. Commonwealth v. Simpson, 754

A.2d 1264 (Pa. 2000).         On September 17, 2001, Appellant filed a pro se petition

pursuant to the PCRA. The PCRA court dismissed Appellant’s claims without a hearing

on October 18, 2005. On appeal to our Court, Appellant raised 15 issues. On March

26, 2013, we affirmed the PCRA court’s order with the exception of two issues involving

trial   counsel’s   alleged    ineffectiveness   regarding   a   failure   to   cross-examine

Commonwealth witness Rasheema Washington and to present potential defense

witness Cameron Thompson. See Simpson, 66 A.3d at 284. We remanded these two

claims to the PCRA court for further proceedings.2

        In light of the retirement of the PCRA judge, upon remand, the matter was

reassigned to the Honorable Glenn Bronson who, after Appellant was appointed new

counsel and was granted a continuance, held an evidentiary hearing on February 21,


2
  Specifically, our Court remanded to “hold a hearing, if necessary, and draft an opinion,
complete with findings of facts and conclusions of law to enable our review of: (1) the
allegations concerning trial counsel’s ineffectiveness for failure to impeach Ra[s]heema
Washington with evidence of motive and bias against Appellant; and (2) the allegations
concerning counsel’s failure to present Cameron Thompson as a witness and use
information from Thompson regarding Washington’s testimony concerning Appellant’s
presence at a movie theater on December 16, 1993.” Simpson, 66 A.3d at 272.



                                        [J-81-2014] - 2
2014. In a thorough and well-written opinion, the PCRA court determined that Appellant

was not entitled to relief. These issues, as well as the related question of cumulative

prejudice, are now properly before our Court for final disposition.

       As Appellant challenges the effectiveness of trial counsel, a brief summary of the

legal framework governing PCRA petitions raising such claims is appropriate. As noted

in our prior decision, Appellant was represented by the same counsel both at trial and

on direct appeal, and, thus, did not have an opportunity to raise claims of trial counsel’s

ineffectiveness on direct appeal. Simpson, 66 A.3d at 260. In this context, the proper

framework in which to consider Appellant’s issues is the “performance and prejudice”

analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984), and Commonwealth

v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Pursuant to guarantees found in the Sixth

Amendment to the United States Constitution and Article I, § 9 of the Pennsylvania

Constitution, a defendant is entitled to the right to effective counsel.     This right is

violated where counsel’s performance “so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007) (internal quotation marks

omitted). In Pennsylvania, courts apply a three-pronged test for analyzing whether trial

counsel was ineffective, derived from our application in Pierce, 527 A.2d at 975, of the

performance and prejudice test articulated by the United States Supreme Court in

Strickland, 466 U.S. at 687. The Pierce test requires a PCRA petitioner to prove: (1) the

underlying legal claim was of arguable merit; (2) counsel had no reasonable strategic

basis for his action or inaction; and (3) the petitioner was prejudiced — that is, but for

counsel’s deficient stewardship, there is a reasonable likelihood the outcome of the

proceedings would have been different. Pierce, 527 A.2d at 975. If a petitioner is




                                      [J-81-2014] - 3
unable to prove any of these prongs, his claim fails. Commonwealth v. Williams, 936

A.2d 12, 19-20 (Pa. 2007).

      Importantly, counsel is presumed to be effective, and a petitioner must overcome

that presumption to prove the three Strickland/Pierce factors.        Commonwealth v.

Singley, 868 A.2d 403, 411 (Pa. 2005). Related thereto, where, such as in the matter

sub judice, trial counsel is deceased, and, thus, unavailable to testify, the petitioner’s

burden of establishing a claim of ineffective assistance of counsel is not lessened or

reduced. Commonwealth v. Steele, 961 A.2d 786, 820 (Pa. 2008). Additionally, and

relevant to both issues before us, to obtain relief for counsel’s failure to effectively

impeach a witness, a petitioner must satisfy the three-pronged test set forth in Pierce.

Furthermore, regarding the failure to procure a witness’s testimony, a petitioner must

demonstrate: (1) the witness existed; (2) counsel was either aware of, or should have

been aware of, the witness’ existence; (3) the witness was willing and able to cooperate

with the defense; and (4) the defendant was prejudiced by the absence of the witness’

testimony. See Commonwealth v. Bryant, 855 A.2d 726, 746 (Pa. 2004).

      Finally, our Court has embraced a de novo standard of review in determining

whether counsel’s performance fell below constitutional mandates, but significantly, for

purposes of this appeal, we have emphasized that the lower tribunal’s factual findings

and credibility determinations which are supported by the record will not be disturbed on

appeal.   Commonwealth v. Spotz, 84 A.3d 294, 311, 319 (Pa. 2014).              With this

framework in mind, we turn to the issues before us.

      The first claim which we remanded to the PCRA court for supplemental review

was whether trial counsel was ineffective for failing to impeach Rasheema Washington

— who was the only eyewitness who testified as to the events surrounding the

kidnappers bringing the murder victim to her apartment, Appellant’s presence with the




                                     [J-81-2014] - 4
victim that evening, and his presence during a telephone conversation with the victim’s

family — with evidence of motive and bias against Appellant.          In sum, Appellant

contends that his trial counsel knew that Washington had been in a sexual relationship

with Appellant, accused him of impregnating her and infecting her with a sexually

transmitted disease, and that she claimed that she would get back at him someday; that

counsel failed to cross-examine Washington on the basis of this evidence; and that, had

counsel properly cross-examined Washington, her impeachment would have resulted in

his acquittal.

       At the evidentiary hearing held by the PCRA court on remand, Cameron

Thompson testified that Washington had told him that she was pregnant and believed

Appellant was the father. Further, Thompson relayed that Washington was obsessed

with Appellant, hated him, and wanted to get him killed. Appellant also testified at the

hearing and, consistent with Thompson, explained that Washington accused him of

giving her a sexually transmitted disease and that she swore she would get back at him.

Additionally, when Washington told Appellant that she was pregnant with his child, and

Appellant advised her to get an abortion, Washington allegedly broke down and was

upset that he did not want to father a child by her. When Washington discovered that

Appellant had a son by another woman, Appellant offered that she stated, “I swear you

going’ [sic] pay for what you did to me one day.” N.T., 2/21/14, 67. Furthermore,

Appellant testified that he told trial counsel of Washington’s bias and motive to lie, and

that counsel should call Thompson as a witness. Finally, Appellant claimed that trial

counsel informed him that Thompson was not pursued as a witness as there was no

money for an investigator to locate him.3

3
  Before the PCRA court, the Commonwealth filed a motion to dismiss, contending, inter
alia, that Appellant’s claim of ineffective assistance of counsel was based upon
inadmissible hearsay, i.e., what Thompson heard from others, and that Appellant could
(continuedK)


                                     [J-81-2014] - 5
      The Commonwealth presented Washington at the remand hearing. Washington

acknowledged that she had a sexual relationship with Appellant, but explained that it

had ended by November 1992, before the 1993 murder at issue in this case, and years

before her testimony against Appellant at his 1997 trial. Indeed, Washington stressed

that, at the time she gave a statement to police inculpating Appellant, she was in a

romantic relationship with her daughter’s father, “Malik,”4 and had no romantic interest

in Appellant. Washington offered that she was not angry with Appellant and did not

threaten him or hope that he would die.       Further, she denied being pregnant with

Appellant’s child and maintained that she never told him that she was pregnant by him

or that she suffered from a sexually transmitted disease due to sexual relations with

Appellant. Finally, Washington explained that she delayed providing information to the

police as co-defendant Malik Bowers (a different person than her boyfriend Malik) was

very close to her and she did not want to incriminate him.

      As noted above, trial counsel, Bernard Siegel, passed away prior to the PCRA

hearing; he left no prior testimony or statements regarding the matters at issue in this

appeal.   Both parties, however, offered into evidence certain notes contained in

counsel’s files. As stated by the PCRA court, the first note, dated September 12, 1996,

and memorializing a conversation with Appellant, offered that “[Washington] is a friend



(Kcontinued)
not show prejudice, as, according to the Commonwealth, both Appellant’s counsel, and
co-defendant Malik Bower’s counsel, vigorously cross-examined Washington. Similarly,
the Commonwealth argued that trial counsel was not ineffective in failing to present
Thompson to rebut Washington’s testimony that defendant was in the vehicle with co-
defendant Bowers when police found the weapon in the car.                Finally, the
Commonwealth maintained that Appellant was not entitled to an evidentiary hearing.
The PCRA court denied the Commonwealth’s motion and resolved the matter on the
merits after a hearing.
4
  Malik’s last name is not disclosed in the record.



                                     [J-81-2014] - 6
of both [defendants] but is afraid - she might be in an accomplice position and should be

made aware of her potential involvement.”        PCRA Opinion, 8/7/14, at 8 (quoting

Commonwealth Exhibit C-3); see also N.T., 2/21/14, at 92-95. Related thereto, the

PCRA court set forth trial counsel’s note dated November 9, 1997:


            [Appellant] and Rasheema [Washington] were intimate - she gave
      him gonorrhea a few times - has a dtr [daughter] that may be his; has
      been intimidated by her - when she was pregnant she told him was his
      several times - she was upset when they broke up - started in 1992 and
      broke up in 1993 or 1994. - if confronted, she might get real out of control.


PCRA Opinion, 8/7/14, at 8 (quoting Commonwealth Exhibit D-1); see also N.T.,

2/21/14, at 72-75.   Also introduced at the hearing were letters in which Appellant

seemingly expressed satisfaction with trial counsel’s representation, despite Appellant’s

convictions.   Finally, the parties introduced contrasting evidence concerning trial

counsel’s abilities, with the Commonwealth offering that counsel was the former

president of the Pennsylvania Association of Criminal Defense Lawyers and co-chair of

the Capital Litigation Training Committee of that association and Appellant introducing

trial counsel’s public censure in 2010 for negligent acts in 2007 and 2008.

      On remand, the PCRA court rejected Appellant’s claim of ineffective assistance

of counsel. Specifically, the PCRA court credited the testimony of Washington which

established that her sexual relationship with Appellant ended by November 1992; that

she was not pregnant with Appellant’s child; that she did not threaten Appellant; that

she did not have a sexually transmitted disease; and that she did not tell anyone that

Appellant gave her a sexually transmitted disease.        The court reasoned that her

testimony was further boosted by Appellant’s trial counsel’s September 12, 1996 note in

which he recorded that Appellant described Washington as a friend and a potential

witness. Conversely, the PCRA court found Thompson’s testimony to be incredible and



                                     [J-81-2014] - 7
that it was fabricated to aid Appellant. Further, the court concluded that Thompson was

never proffered to trial counsel and that counsel had no reason to believe Thompson

would be useful as a witness. Similarly, the PCRA court determined that Appellant’s

testimony, including the above allegations of bias and revenge on the part of

Washington, was not credible. The PCRA court, however, did find that Appellant, 14

months after describing Washington as a friend, and one month prior to trial, did tell his

trial counsel that he had engaged in sexual relations with Washington and had given

Appellant a sexually transmitted disease, that Washington had a daughter that might be

his, that Washington told Appellant the child was his, and that she was upset when their

relationship ended.

       Thus, the PCRA court initially concluded that there was no factual basis for

Appellant’s assertions. Further, the PCRA court determined that, because trial counsel

died, the reason for his not confronting Washington at trial would never be expressly

established. The court opined, however, that trial counsel may have refrained from

challenging Washington as he had no extrinsic evidence to corroborate Appellant’s

allegations or because Appellant had initially informed counsel that Washington was a

friend and possible defense witness. The court further reasoned that an uncorroborated

attack on a witness involving her sexual practice, venereal disease, abortion, and

related matters certainly could have offended jurors. Moreover, the court stressed that

Appellant proffered no evidence that would establish that trial counsel’s actions had no

reasonable basis.

       Additionally, the PCRA court determined that Appellant failed to establish he was

prejudiced by trial counsel’s failure to cross-examine Washington regarding her alleged

bias. The court explained that, if Washington had credibly testified at trial, as she did at

the PCRA hearing, without any extrinsic evidence to contradict Washington, there was




                                      [J-81-2014] - 8
not a reasonable basis that challenging Washington’s testimony would have affected

the outcome of the trial. According to the court, the fact that Appellant did not ask trial

counsel to call Thompson as a witness is corroborated by Appellant’s repeated

assertions of satisfaction with counsel’s representation. Related thereto, the PCRA

court reviewed the evidence presented against Appellant, including confirmation of

Appellant as the kidnapper and murderer by witnesses other than Washington, and

stressed the minimal value that any cross-examination of Washington would have had

concerning the outcome of the trial.

      Thus, based upon its credibility determinations of the testifying witnesses,

including Appellant, the PCRA court not only found Appellant’s claims lacking in factual

foundation, but also concluded that Appellant failed to establish trial counsel had no

reasonable basis for failing to challenge Washington at trial with such information and

the testimony of Thompson, and that Appellant suffered no prejudice by counsel’s

failure to cross-examine Washington.

      Turning to the arguments of the parties,5 Appellant initially holds up the

uncredited testimony of Thompson and Appellant as a basis for granting him relief,

challenges Washington’s testimony as incredible, and stresses the criticality of

Washington’s testimony to the Commonwealth. He goes on to claim that it is not for the

court to decide the effect that a witness’ testimony may have had on the jury if that

5
  The parties have not filed briefs with our Court at this juncture. However, Appellant
and the Commonwealth filed various pleadings both before and after the PCRA court’s
February 21, 2014 remand hearing. The arguments of the parties set forth below are a
compilation and summary of the arguments set forth in these pleadings. See
Commonwealth’s Motion to Dismiss, 7/10/13; Petitioner’s Reply to the Commonwealth’s
Motion to Dismiss Petitioner’s Post Conviction Relief [sic], 10/5/13; Petitioner’s Post
Hearing Argument, 5/8/14; Commonwealth’s Letter Response to Post Hearing
Argument, 6/6/14; Commonwealth’s Post-Hearing Brief, 5/21/14; and Petitioner’s Reply
to the Commonwealth’s Post Hearing Brief, 6/3/14.



                                       [J-81-2014] - 9
witness had been called to testify, but that matters of credibility are left for the fact finder

— in this case, the jury. Thus, Appellant stresses that Washington’s credibility is not

relevant to whether trial counsel was ineffective for failing to call Thompson to testify or

failing to impeach Washington at trial with the information regarding her bias against

Appellant. Rather, according to Appellant, what is important is that Appellant told trial

counsel prior to trial that Washington’s testimony could be impeached with Thompson’s

testimony, yet counsel failed to investigate and impeach Washington with Thompson’s

testimony. Appellant further asserts that trial counsel informed him that he did not have

funds to pay for a private investigator, but argues that such investigation would cost

nothing.   Additionally, Appellant offers as relevant to the inquiry that trial counsel

negligently handled cases in 2007 and 2008.

       In the alternative, Appellant submits that Washington’s testimony is not credible

because: she delayed telling the police of the events surrounding the murder; she must

have had feelings towards Appellant as she engaged in sexual relations with him

multiple times; if she lied at trial, she could have been charged with perjury; the truth

would have presented problems with her children’s father; and Washington had a

pattern of changed stories regarding the incident. Appellant also explains that he did

not tell trial counsel about his turbulent relationship with Washington months before trial,

but instead described her as a friend and possible witness earlier, because he was

surprised to learn at trial that Washington was incriminating him and that he had been

trying to protect her from involvement as an accomplice. Thus, according to Appellant,

upon learning that Washington was lying to police, he realized the importance of

divulging to counsel the full scope of his relationship with Washington and her

motivation to incriminate him. Finally, Appellant maintains that he was prejudiced by

trial counsel’s ineffectiveness, as, had counsel presented Thompson’s testimony at trial,




                                       [J-81-2014] - 10
he would have been able to paint a different picture of Washington and, due to

counsel’s ineffectiveness, the jury was prevented from hearing anything about their

troubled relationship and her possible motive and bias against him.

      In response, the Commonwealth initially argues that Thompson’s proffered

testimony is inadmissible hearsay and cannot serve as the basis for relief. Further, the

Commonwealth highlights the PCRA court’s crediting of Washington’s testimony that

she harbored no ill feelings towards Appellant; that their relationship had ended well

before the night of the murder; that she did not accuse Appellant of fathering her child or

giving her a sexually transmitted disease; and that she never threatened him or vowed

to retaliate against him. Additionally, the Commonwealth offers that Washington did not

seek out the police after the victim was murdered because: she considered Appellant’s

co-defendant Malik Bowers to be family and did not want to implicate him; she was

worried that she would be implicating herself in the crime, as the kidnappers brought the

victim to her apartment; and she was afraid of what would happen to her on the streets

if she went to the police and told them all that she knew. Further, the Commonwealth

asserts that our Court has made it clear that the PCRA court may pass on witness

credibility at a PCRA hearing, and that such determinations should be given great

deference by reviewing courts. Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa.

2009). Here, the Commonwealth maintains it was necessary for the PCRA court to

pass on the credibility of Washington, as well as Thompson and Appellant, in

determining whether trial counsel was ineffective for failing to impeach Washington’s

testimony, and most importantly, whether Appellant was prejudiced by counsel’s not

confronting Washington. Indeed, the Commonwealth stresses it was proper for the

PCRA court to find Appellant’s assertions incredible, as only after Appellant learned that




                                     [J-81-2014] - 11
Washington was incriminating him in the murder did he convey their troubled

relationship to counsel and suggested a motive for Washington to lie.

      In any event, the Commonwealth contends Appellant failed to establish

prejudice, as Washington was vigorously cross-examined by counsel for Appellant and

counsel for co-defendant Bowers at trial. Related thereto, the Commonwealth submits

that, in light of the compelling evidence of Appellant’s guilt, Appellant cannot show a

reasonable probability that the verdict would have been different had trial counsel

questioned Washington regarding her purported bias and motive to lie. Specifically, the

Commonwealth emphasizes Aloyisius Stanley Hall’s testimony that the kidnapper who

spoke with him on the telephone and who referred to the earlier robbery of Hall

responded affirmatively when asked if it was “Rasheed” on the line, and threatened to

kill the victim if the kidnappers did not received $20,000 in 15 minutes. According to the

Commonwealth, even if trial counsel had cross-examined Washington with her alleged

bias against Appellant — in which case Washington would have denied having any

vendetta against Appellant as she did during the PCRA court hearing — Appellant

cannot demonstrate a reasonable probability that the jury would have acquitted him of

the victim’s murder.

      Upon review, we conclude that the PCRA court’s factual findings are supported

by the record, its conclusions are free from legal error, and so its denial of relief was

appropriate.   First, we find that the record amply supports the court’s finding that

Washington credibly testified that she was not biased against Appellant and, inter alia,

did not communicate to Appellant that she was pregnant with Appellant’s child, that

Appellant had given her a sexually transmitted disease, or that she would seek revenge

against him.   Further, we find that the PCRA court’s legal conclusions regarding

Appellant’s claim of ineffectiveness are free from legal error.         Specifically, while




                                    [J-81-2014] - 12
Appellant claims that the credibility of Washington’s testimony is for the jury, and not the

PCRA court, he misunderstands the import of the court’s role in making credibility

determinations. Beyond resolving the veracity of the underlying factual foundation for

the claim, Washington’s credibility goes to the question of prejudice. The PCRA court’s

finding that Washington credibly testified strongly supports its conclusion that Appellant

failed to meet his burden of establishing that, but for the ineffectiveness of trial counsel,

the outcome of the proceedings would have been different. As noted by the PCRA

court, there was significant other evidence in the form of Hall’s testimony that Appellant

was the murderer. Moreover, the court rightfully stressed the minimal value that any

cross-examination of Washington would have had concerning the outcome of the trial,

even if trial counsel had cross-examined Washington with her alleged bias against

Appellant, as Washington would have credibly denied having any vendetta or bias

against Appellant, as she did during the PCRA court hearing.

          As to Appellant’s claim that trial counsel failed to call Thompson as a witness to

rebut Washington’s testimony, the PCRA court found that Thompson was never

proffered as a witness to trial counsel and that counsel had no reason to believe that he

would be helpful as a witness. This credibility determination by the PCRA court in

disbelieving Appellant’s assertions is supported by the record.        Thus, on this basis

alone, Appellant’s claim that counsel was ineffective for failing to present Thompson as

a rebuttal witness does not entitle him to relief, as he fails to satisfy the reasonable

basis prong of the Pierce test — i.e., that counsel had no reasonable strategic basis for

his inaction. In any event, there is no reasonable likelihood that the outcome of the

proceedings would have been different with Thompson’s testimony, as the court found

his testimony to be incredible and fabricated to assist Appellant, who was his longtime

friend.     Thus, we agree with the PCRA court, with respect to both of Appellant’s




                                       [J-81-2014] - 13
allegations of ineffective assistance of counsel, that he failed to meet the Pierce

prejudice prong — i.e., he did not demonstrate to a reasonable probability that the jury

would have acquitted him of the victim’s murder had trial counsel cross-examined

Washington with her alleged bias against Appellant and had offered Thompson as a

witness.

      We now turn to Appellant’s allegations concerning trial counsel’s failure to

present Thompson as a witness and use information from Thompson to undermine

Washington’s testimony concerning Appellant’s presence at a movie theater after the

murder on December 16, 1993.

      By way of background, one week after Hayne’s murder, Montgomery County

Police Officer James Slavin investigated a vehicle which lacked a license plate in the

parking lot outside a movie theater in the Cheltenham Mall in Cheltenham,

Pennsylvania, and in doing so, observed a firearm under the seat of the car. Officer

Slavin and other officers waited for the return of the individuals to the vehicle, and

confronted them upon their return. Officer Slavin’s notes of the incident identified the

members of the returning party as co-defendant Bowers, Washington, Thompson, Will

Shepard, and the driver, Medeya Clark. Bowers refused to cooperate with officers and

was subsequently arrested.

      Washington testified that Appellant was one of the individuals present, and not

Shepard. Washington not only testified that Appellant was a passenger in the car, but

that Appellant had the firearm in his possession before the group exited the vehicle to

go to the movies. Although it could not be confirmed that the gun was the murder

weapon, the evidence was proffered to establish that Appellant was found with his

alleged co-conspirator Bowers in possession of a firearm shortly after the murder.




                                    [J-81-2014] - 14
         At the PCRA hearing on remand, Thompson testified that he was a passenger in

the vehicle at the movie theater parking lot on the night in question and that Appellant

was not present. Thompson further stated that Washington and Sheppard had been

hugging and kissing that evening at the movies. Appellant also testified, denying that

he was at the movie theater that night, and explained that he asked trial counsel to find

Thompson and call him as a witness to contradict Washington’s testimony that

Appellant was in the car when Bowers was arrested for possession of the firearm.

Washington testified to the contrary, explaining that Appellant was in the car as a

passenger, was present at the time of the arrest, and was in possession of a firearm

before the party left the parking lot to go to the movies.

         The PCRA court determined that neither Thompson nor Appellant testified

credibly regarding the events at Cheltenham Mall and that their testimony was refuted

by the credible testimony of Washington.          Likewise, the PCRA court found that

Appellant did not ask trial counsel to call Thompson as a witness and that counsel had

no reason to call him to testify. Thus, the court concluded that Appellant’s claim that

trial counsel was ineffective for failing to call Thompson as a witness regarding

Appellant’s presence and possession of a firearm in the parking lot outside of a movie

theater lacked arguable merit, as Appellant failed to adduce any factual basis for his

claim.

         Appellant offers that Washington was the only witness to place Appellant with

Bowers at the parked car in which a firearm was located, as well as at the scene of the

crime, and, thus, her testimony was central to the Commonwealth’s obtaining

Appellant’s conviction. According to Appellant, had Thompson testified at trial, he would

have directly rebutted Washington’s testimony.           Specifically, Appellant offers that

Thompson’s testimony that Appellant was not among the individuals in the vehicle in the




                                      [J-81-2014] - 15
mall parking lot was corroborated by Officer Slavin, who indicated that Appellant was

not present, but that Thompson and Sheppard were part of the group of individuals in

the vehicle.   Appellant also offers that Thompson testified that Washington and

Sheppard had been kissing the night they went to the movies and that it was

Thompson’s opinion that Washington was protecting Sheppard, who Appellant suggests

was the actual murderer, and, further, that it was Sheppard who threw the firearm on

the floor of the vehicle when police approached.

       Appellant also criticizes counsel for failing to seek a continuance so that he could

investigate rebuttal evidence, if it was unclear until Washington testified that Appellant

had been in the car with the gun at Cheltenham Mall. Appellant contends that, even if

trial counsel had no funds for investigation, it would have cost virtually nothing to

telephone Thompson or to subpoena him. Appellant maintains that trial counsel had no

reason not to investigate and present Thompson’s testimony at trial. With regard to

prejudice, Appellant submits that, without the impeaching evidence, the jury was not

able to arrive at an informed determination as to Washington’s credibility, which,

according to Appellant, was the critical link to the Commonwealth’s evidence.

Moreover, Appellant offers trial counsel’s negligent handling of cases in 2007 and 2008,

which resulted in a public censure, as further evidence of his ineffectiveness.

       The Commonwealth stresses that Appellant presented nothing to establish that

he ever asked trial counsel to call Thompson to testify at trial. Nothing in counsel’s file,

according to the Commonwealth, indicates such a request, and numerous times during

both the guilt and penalty phase Appellant indicated that he was satisfied with counsel’s

representation. In any event, the Commonwealth argues that Thompson’s testimony

was incredible, as he had been a friend of Appellant’s family for nearly 30 years, came

forward eight years after his friend Appellant was convicted of murder, and that it would




                                     [J-81-2014] - 16
not be surprising for Appellant, who was a fugitive in a murder case, to offer a fake

name — “Will Shepard” — when confronted by police. Further, the Commonwealth

adds that there was already evidence rebutting Washington’s assertions offered at trial

in the form of Officer Slavin’s notes, which indicated that Appellant was not present with

the others outside the movie theater. The Commonwealth submits that, in light of trial

counsel’s passing, his extensive experience as a capital criminal defense attorney6 is

highly relevant and casts doubt upon Appellant’s claims of ineffectiveness. Finally, the

Commonwealth urges that, in light of the overwhelming evidence of guilt presented at

trial, including Washington’s testimony regarding the murder, Appellant has failed to

establish the outcome of the trial would have been different if Thompson had testified

regarding Appellant’s absence from the events at Cheltenham Mall a week after the

murder.

       Upon review, we conclude that the PCRA court’s factual findings are supported

by the record and its denial of relief was proper. First, the PCRA court rejected as

incredible that Appellant requested trial counsel to call Thompson as a witness and that

he was prejudiced by counsel’s failure to call him.         Except for his self-serving

assertions, Appellant presented nothing to substantiate his claim that he asked counsel

to call Thompson as a witness.         Giving deference to the PCRA court’s credibility

determinations as we must, we find Appellant failed to meet his burden of establishing

that trial counsel knew or should have known that Thompson existed as a witness, and,

thus, did not satisfy the reasonable basis prong of the Pierce test. On this basis alone,

Appellant is not entitled to relief.



6
  As noted above, the Commonwealth highlights counsel’s achievements as former
president of the Pennsylvania Association of Criminal Defense Lawyers and co-chair of
the Capital Litigation Training Committee of that association.



                                       [J-81-2014] - 17
          Moreover, the PCRA court credited Washington’s testimony regarding the events

of December 16, 1993 at the Cheltenham Mall, and found Appellant and Thompson’s

testimony concerning that night to be incredible. Thus, there was not only a lack of

factual foundation for Appellant’s claim, as found by the PCRA court, but we also

conclude Appellant failed to establish prejudice, as the outcome of the trial would not

have been different even if the jury had heard Thompson’s testimony regarding the

tangential events of December 16 — that Appellant was not in the car a week after the

murder when the police found a gun that could not be identified as the murder weapon.

In light of the factual support for these findings and our deferential standard in reviewing

credibility determinations of the PCRA court, we conclude Appellant is not entitled to

relief.

          Having resolved both remand claims, as well as previously resolving all of

Appellant’s substantive issues raised on appeal, we are now able to address Appellant’s

last claim that, even if our Court determines he is not entitled to relief based on the

prejudicial effect of any single error, he is nevertheless entitled to relief due to the

cumulative prejudicial effect of all of the errors he has set forth. It is well established

that no number of failed ineffectiveness claims may collectively warrant relief if they do

not do so individually. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). Yet,

when the failure of individual claims is based upon a lack of prejudice, the cumulative

prejudice arising from those individual claims may properly be considered.

Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012); Commonwealth v. Sepulveda,

55 A.3d 1108, 1150 (Pa. 2012) (“if multiple instances of deficient performance are

found, the assessment of prejudice properly may be premised upon cumulation”

(internal quotation marks omitted)).




                                       [J-81-2014] - 18
       As noted in our earlier opinion, we previously resolved four issues solely on the

grounds of lack of prejudice. These claims were that trial counsel was ineffective for (1)

failing to secure a broader stipulation concerning Felicia Brokenbrough’s statement to

police and her absence at trial, and/or for failing to seek a bench warrant to secure her

presence at trial; (2) retaining an investigator with an alleged conflict of interest; (3)

failing to request a limiting instruction regarding other crimes evidence; and (4) failing to

produce mitigating evidence during the penalty phase. In this opinion, we resolve one

aspect of the first remand claim — whether trial counsel was ineffective for failing to

impeach Washington with her alleged bias — solely on the basis of a lack of prejudice.

Thus, our assessment properly focuses upon whether these five issues, resolved solely

on the basis of prejudice, resulted in cumulative prejudice entitling Appellant to relief.

       We have examined Appellant’s claims which we dismissed solely on the basis of

prejudice and are satisfied that the ineffectiveness claims at issue involve distinct

inquiries, and, in any event, even cumulating these claims, we are confident in light of

the evidence implicating Appellant in this murder, that the outcome of the trial would

have been the same. See id.

       The order of the PCRA court is affirmed.7

7
  Appellant filed a Motion for Leave to Clarify/Correct the Record on October 7, 2014
regarding the alleged misstatement of the PCRA court as to the timing of Washington’s
statement to police, to which the Commonwealth did not file an answer. We hereby
grant Appellant’s motion. Further, Appellant attempts to raise further claims which he
asserts arose on remand through an Application for Leave to File Supplemental Claims
Raised on Remand, filed on August 25, 2014. In his application, Appellant asserts the
PCRA court violated his constitutional rights by improperly denying his request, in light
of the passing of trial counsel, to call an expert in capital cases to speak to the
prevailing norms of capital practice. As we have resolved these issues on grounds to
which the expert testimony requested by Appellant would be inapplicable, we hereby
dismiss Appellant’s application on this basis as moot. Further, Appellant claims that trial
counsel’s handwritten notes, while authentic, were not properly admitted by the
Commonwealth at the remand hearing, and that the PCRA court violated his
(continuedK)


                                      [J-81-2014] - 19
Messrs. Justice Eakin, Baer and Stevens join the opinion.

Mr. Chief Justice Saylor files a dissenting opinion.




(Kcontinued)
constitutional rights in granting the Commonwealth’s subsequent post-hearing motion to
reopen the record to admit these notes. Appellant argued before the PCRA court that
the Commonwealth failed to demonstrate that its motion was timely, that the notes were
relevant, or that trial counsel normally kept handwritten notes in his cases. Further,
Appellant maintained that the notes were cumulative, and, thus, inadmissible. In
admitting the notes, we find no abuse of discretion. Commonwealth v. Montalvo, 986
A.2d 84, 94 (Pa. 2009) (finding the admission of evidence is at the discretion of the
court and such determination will not be reversed absent a showing that the trial court
clearly abused that discretion). Moreover, we note that Appellant asserts the
objectionable notes are cumulative of other notes in the record and so conclude that,
even if trial counsel’s handwritten notes were improperly admitted into the record, such
admission constituted harmless error. See Commonwealth v. Hairston, 84 A.3d 657
671-72 (Pa. 2014). Thus, we hereby deny Appellant’s application.



                                     [J-81-2014] - 20
