J-S40033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY LEE GERBER, JR.                       :
                                               :
                       Appellant               :   No. 3201 EDA 2016

               Appeal from the PCRA Order September 26, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000112-2007


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 21, 2017

        Gary Lee Gerber, Jr., appeals from the order entered September 26,

2016, in the Monroe County Court of Common Pleas, denying his first petition

for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Gerber seeks relief from the judgment of sentence of life imprisonment

following his conviction of first-degree murder2 for the August 1993 death of

Robert Hagan. On appeal, Gerber raises several allegations of trial counsel’s

ineffectiveness.3 For the reasons below, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.

1
    See 42 Pa.C.S. §§ 9541-9546.

2
    18 Pa.C.S. § 2502.

3
  It is important to note that while Gerber challenges numerous decisions
made by counsel during the course of his trial, he does not assert counsel’s
overall defense strategy, was ineffective.
J-S40033-17



      The facts underlying Gerber’s arrest and conviction were recounted by

a panel of this Court in the memorandum decision affirming Gerber’s

conviction on direct appeal:

             The majority of the facts are not in dispute: in the early
      morning hours of August 13, 1993, [Gerber] was alone[ ] with the
      victim in the victim’s vehicle while parked along Rimrock Road in
      Monroe County. At some point while inside the vehicle, [Gerber]
      “lashed out” on the victim, stabbing him four times in the back [7]
      .... [Gerber] admitted stabbing the victim. [Gerber] also cut the
      victim’s throat in a manner that showed no sign of hesitation; the
      victim’s neck wound was characterized as a superficial wound
      because no major arteries were cut, but the area had many blood
      vessels which would have resulted in fairly profuse bleeding.
      These stab wounds were potentially lethal because [of] the
      amount of hemorrhaging and blood loss the victim suffered, as
      well as his collapsed lung.
      __________
         7
           At trial, [Gerber] testified he was inebriated and parked
         his pickup truck in a parking lot. Two men approached, told
         him he could not park there and they would give him a ride,
         and helped him into what he believed was the victim’s car.
         The next thing [Gerber] remembered was waking up in the
         victim’s car, his pants and underwear were pulled down,
         “somebody was on top of” him and “trying to force
         something into” him, and he felt “excruciating pain.” On
         appeal, [Gerber] avers the victim was “trying to
         homosexually rape him.”

      __________

            After being stabbed, the victim exited the car and fled. The
      victim’s body was eventually found on a bridge on Rimrock Road
      approximately 290 feet away from where [Gerber] stabbed the
      victim. Blood drops were found in various locations along the road
      leading toward the bridge on Rimrock Road. [I]t was determined
      [the victim] had suffered massive injuries to his head, i.e. a
      crushed skull and brain, and massive injuries to his torso, i.e., a
      crushing injury to his entire side of his chest. These injuries were
      consistent with him being run over by a car.



                                     -2-
J-S40033-17


            [Gerber] stated that, after he stabbed the victim, he got into
     the driver’s seat of the victim’s vehicle and drove up Rimrock Road
     toward Route 611, which is the same direction where the victim’s
     body was found. Thereafter, [Gerber] drove the vehicle to his
     father’s junkyard and wiped down the interior of the car to clean
     off the blood. [Gerber] stated that he only cleaned off the steering
     wheel and the shifter of the vehicle, but also noted that the “car
     [was] like forensically clean like somebody who knew what they
     were doing did it.” Although [Gerber] only admits having wiped
     down the interior of the vehicle, [Gerber’s] father testified that he
     also observed [Gerber] wiping down the car from the outside.
     Additionally, wipe marks were found on the passenger door
     window of the victim’s vehicle and blood was present on the front
     license plate of the vehicle in a manner that was consistent with
     someone wiping the license plate. Finally, [Gerber] admitted
     “getting rid of the car” by dumping it along Schaffer’s School
     House Road.

     ______

     [Gerber] testified that he never felt an impact of hitting a body
     that night, but he did admit that he could have driven through a
     “brick wall [because he] was so [expletive] scared that night.”

     ______

           In his closing argument, [Gerber’s] trial counsel made clear
     that the majority of these facts were not in dispute. However, the
     [d]efense argued that [Gerber] stabbed the victim in self[-
     ]defense, believing that he was being sexually assaulted by the
     victim. [Gerber] claims that he began driving the victim’s car, but
     never knew that he hit the victim because of his emotional state
     after being sexually assaulted and because of the foggy weather
     conditions that morning. Finally, [Gerber] claims that he dumped
     the vehicle on Schaffer’s Schoolhouse Road because his father told
     him to and that he never came forward to the police with his self-
     defense claim because he was ashamed of being sexually
     assaulted.

           We emphasize that at trial, [Gerber] admitted to hitting the
     victim with the car but averred he did not know he hit him.

Commonwealth v. Gerber, 118 A.3d 440 (Pa. Super. 2015) (unpublished

memorandum at *1-*2) (quotation and record citations omitted).


                                     -3-
J-S40033-17



       The tortured procedural history of this appeal is as follows. Although

the victim was murdered on August 8, 1993, the crime remained unsolved for

more than a decade until 2006, when the Pennsylvania Office of the Attorney

General uncovered evidence related to the crime during the investigation of

another matter.4       In November of 2006, a state investigating grand jury

approved a presentment recommending a charge of criminal homicide against

Gerber for the victim’s murder.                A criminal complaint followed shortly

thereafter.

       On March 20, 2008, Gerber entered a guilty plea to one count of third-

degree murder. However, one week before his scheduled sentencing hearing,

Gerber filed a motion to withdraw the plea. On June 17, 2008, the trial court

conducted a hearing and denied Gerber’s motion. The court sentenced Gerber

that same day to a term of 10 to 20 years’ imprisonment. On appeal, a panel

of this Court vacated the judgment of sentence, finding Gerber cited fair and

just reasons for the pre-sentence withdraw of his plea. See Commonwealth

v. Gerber, 981 A.2d 312 (Pa. Super. 2009). The Supreme Court subsequently

denied the Commonwealth’s petition for allowance of appeal.                     See

Commonwealth v. Gerber, 989 A.2d 915 (Pa. 2010).




____________________________________________


4
  We note Gerber was subpoenaed to testify before a Monroe County grand
jury investigating the murder in 1995. See N.T., 7/12/2010, at 122. At that
time, he denied any knowledge of the crime. Id. at 130-131.



                                           -4-
J-S40033-17



       Upon remand, Gerber withdrew his guilty plea and the case proceeded

to a jury trial on one count of criminal homicide.5 On July 14, 2010, the jury

found Gerber guilty of first-degree murder. The trial court sentenced Gerber

to a term of life imprisonment on September 7, 2010.         Gerber filed post-

sentence motions, which the trial court denied following a hearing. Thereafter,

Gerber filed a timely direct appeal. However, while that appeal was pending,

Gerber filed a petition for remand for consideration of newly discovered DNA

evidence.    By order dated February 27, 2012, this Court granted Gerber’s

petition, vacated his sentence, and remanded for an evidentiary hearing. See

Order, 2/27/2012.         Specifically, this Court directed the trial court “to

determine if a new trial is warranted based on after-discovered evidence

pursuant to the four factors set forth in Commonwealth v. Pagan, [] 950

A.2d 270, 292 ([Pa.] 2008)[,]” and either “order a new trial or re-impose

sentence.” Order, 2/27/2012.

       Upon remand, the trial court conducted an evidentiary hearing on July

18, 2012. Subsequently, on November 14, 2012, the court denied Gerber’s

claim of after-discovered evidence and re-imposed the judgment of sentence

of life imprisonment. On December 7, 2012, Gerber requested permission to

file post-sentence motions nunc pro tunc. The trial court granted the request,

____________________________________________


5
  The verdict sheet permitted the jury to find Gerber guilty of either first-
degree murder, third-degree murder, or voluntary manslaughter. See Verdict
Sheet, 7/14/2010.




                                           -5-
J-S40033-17



and Gerber filed additional post-sentence motions on February 1, 2013.6 In

an order dated March 6, 2013, the trial court granted Gerber relief on his claim

that he was not permitted to address the court prior to re-sentencing.

Accordingly, the court vacated the sentence and scheduled a new sentencing

hearing for March 18, 2013. At that hearing, the trial court again imposed a

sentence of life imprisonment.           Thereafter, on April 24, 2013, the court

entered an order dismissing the remaining claims in Gerber’s post-sentence

motions, as they all invoked challenges to the effective assistance of counsel

and had to be raised in a collateral proceeding. A panel of this Court affirmed

the judgment of sentence on direct appeal. See Gerber, supra, 118 A.3d

440.

       On July 27, 2015, Gerber filed the instant PCRA petition, his first, raising

eight claims asserting the ineffective assistance of trial counsel. An amended

petition followed on October 23, 2015. The PCRA court conducted three days

of evidentiary hearings, on February 17, 2016, May 25, 2016, and May 26,

____________________________________________


6
   As this Court noted on direct appeal, the trial court should not have allowed
Gerber to file additional post-sentence motions on remand because the
remand order specifically directed the trial court to either order a new trial or
re-impose the sentence. Accordingly, “[Gerber] should have filed a notice of
appeal within thirty days of the court’s denial of his motion based on newly-
discovered DNA evidence and re-imposition of sentence.” Gerber, supra,
118 A.3d 440, at *3. Nonetheless, we declined to quash the appeal “because
the trial court perpetuated the error by specifically granting [Gerber] leave to
file post-sentence motions nunc pro tunc and then denying them on the
merits.” Id.




                                           -6-
J-S40033-17



2016, respectively.      Subsequently, on September 27, 2016, the PCRA court

entered an order denying Gerber relief. This timely appeal follows.7

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Where, as here, all of the claims

on appeal assert trial counsel’s ineffectiveness, we must bear in mind:

              “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.’” Commonwealth v. Payne, 794 A.2d 902, 905 (Pa.
       Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When
       considering such a claim, courts presume that counsel was
       effective, and place upon the appellant the burden of proving
       otherwise. Id. at 906. “Counsel cannot be found ineffective for
       failure to assert a baseless claim.” Id.

             To succeed on a claim that counsel was ineffective,
       Appellant must demonstrate that: (1) the claim is of arguable
       merit; (2) counsel had no reasonable strategic basis for his or her
       action or inaction; and (3) counsel’s ineffectiveness prejudiced
       him. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.
       2003).

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).

Furthermore, “[t]o demonstrate prejudice, a petitioner must show that there

is a reasonable probability that, but for counsel’s actions or inactions, the

____________________________________________


7
  On October 12, 2016, the PCRA court ordered Gerber to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Gerber complied with the court’s directive and filed a concise statement on
October 24, 2016.

                                           -7-
J-S40033-17



result of the proceeding would have been different.”       Commonwealth v.

Mason, 130 A.3d 601, 618 (Pa. 2015).

      In his first issue on appeal, Gerber contends trial counsel was ineffective

for failing to object to the testimony of Pennsylvania State Police Sergeant

Frank DeAndrea.     First, Gerber argues Sergeant DeAndrea inappropriately

provided expert testimony on issues concerning the crime scene, and his

opinion that Gerber ran over the victim twice.      Gerber claims the officer’s

testimony was improper because: (1) the Commonwealth did not offer

Sergeant DeAndrea as an expert witness or provide Gerber with a pretrial

report discussing the officer’s findings; (2) the officer was not qualified to

testify as an expert; (2) the officer did not offer his opinions within a

reasonable degree of certainty; and (3) the trial court did not instruct the jury

that the officer was an expert witness. See Gerber’s Brief at 12-29. Second,

Gerber contends that even if Sergeant DeAndrea’s testimony did not

constitute an expert opinion, the officer provided improper lay opinion

testimony. See id. at 29-36. In either case, Gerber insists trial counsel had

no reasonable basis for failing to object to Sergeant DeAndrea’s testimony,

and Gerber was prejudiced as a result. See id. at 36-41.

      Preliminarily, we note decisions concerning the admissibility of evidence

are within the sound discretion of the trial court. Commonwealth v. Brown,

134 A.3d 1097, 1105 (Pa. Super. 2016), appeal denied, 145 A.3d 161 (Pa.

2016). Here, the court found Trooper DeAndrea did not testify as an expert




                                      -8-
J-S40033-17



witness at trial, but rather the trooper “gave permissible lay witness

testimony[.]” PCRA Court Opinion, 9/26/2016, at 12. We agree.

      When a witness’s testimony is based upon “scientific, technical, or other

specialized knowledge [] beyond that possessed by the average layperson,”

the witness must be qualified as an expert “by knowledge, skill, experience,

training or education.” Pa.R.E. 702(a). Nevertheless, Pennsylvania Rule of

Evidence 701 permits a lay witness to offer opinion testimony so long as the

opinion is:

      (a) rationally based on the witness’s perception;

      (b) helpful to clearly understanding the witness’s testimony or to
      determining a fact in issue; and

      (c) not based on scientific, technical, or other specialized
      knowledge within the scope of Rule 702.

Pa.R.E. 701.    Further, this Court has noted that “lay opinion testimony

embracing an ultimate issue in a case is admissible as long as the witness

perceived the events upon which his opinion is based.” Commonwealth v.

Bowser, 624 A.2d 125, 133 (Pa. Super. 1993), appeal denied, 644 A.2d 161

(Pa. 1994), cert. denied, 513 U.S. 867 (1994).

      This Court’s recent decision in Commonwealth v. Kennedy, 151 A.3d

1117 (Pa. Super. 2016), is instructive. In Kennedy, the trial court denied an

oral motion in limine to preclude a police crime scene investigator from

testifying regarding her observations of the trajectory of bullets fired through

the victim’s door. See id. at 1121. The officer later testified that “she placed

rods in the bullet holes of the door” and that “the only logical conclusion based


                                      -9-
J-S40033-17



upon the bullet trajectories, … was that the door was slightly ajar when [the

defendant] shot [the victim].” Id. at 1122. On appeal, the defendant argued

the court erred in permitting the officer to offer her lay opinion that the door

was “slightly open” at the time of the shooting.     Id.   However, the panel

disagreed, concluding the officer’s testimony was a permissible lay opinion

based on the officer’s perception of the crime scene, and did not require the

specialized knowledge of an expert witness.       Indeed, the panel explained

“[a]ny individual could place a rod in a bullet hole and discern which direction

the bullet traveled.” Id. at 1123.

      In the present case, Sergeant DeAndrea testified extensively regarding

his investigation and processing of the crime scene. See N.T., 7/8/2010, at

14-144. See also Gerber’s Brief at 14 (stating Sergeant DeAndrea testified

regarding “the appearance of the victim, the scene of the crime, and the

measurements,     photographs    and   evidence   gathering   he   claimed   he

undertook.”).   In doing so, the officer offered his interpretations of the

evidence recovered, and his opinion as to how the events leading to the

victim’s death unfolded. Specifically, Gerber complains the officer improperly

provided “expert” testimony regarding the significance of a string found

hanging from the suspension assembly underneath the victim’s vehicle. See

Gerber’s Brief at 15-16. Sergeant DeAndrea testified the string was the same

color and texture as the victim’s pants, which had a jagged tear in the

buttocks. See N.T., 7/8/2010, at 31-32, 99. Because he observed the string

hanging from the rear portion of the suspension support bar, Sergeant

                                     - 10 -
J-S40033-17



DeAndrea testified that he believed the “vehicle was traveling in reverse when

it went across [the victim’s] pants.” Id. at 89. See also id. at 79-91. Gerber

insists this opinion, as well as the officer’s testimony regarding a tire

impression on the victim’s shirt, the state of the victim’s body, and the

significance of a handprint and footprint in the dirt parking lot, crossed the

line into expert opinion testimony.     See Gerber’s Brief at 15, citing N.T.,

7/8/2010, at 33-48, 53-56.       Because the Commonwealth never offered

Trooper DeAndrea as an expert witness, Gerber contends counsel was

ineffective for failing to object to this “improper” testimony.

      The PCRA court concluded, however, that Sergeant DeAndrea gave

“permissible lay witness testimony.” PCRA Court Opinion, 9/26/2016, at 12.

The court explained:

            In this case, the Commonwealth called [Sergeant]
      DeAndrea to testify regarding the state of the crime scene on
      August 8, 1993 and the actions he took that day. [Sergeant]
      DeAndrea is … a member of the identification unit, which is
      involved in processing crime scenes.    That day, [Sergeant]
      DeAndrea’s duties included the documentation, collection and
      preservation of evidence.

             [Gerber] complains that [Sergeant] DeAndrea gave
      numerous expert opinions, which should have only been
      admissible under Pa.R.E. 702. We disagree. While subject to both
      direct and cross examination, [Sergeant] DeAndrea explained the
      actions he took on August 8, 1993 and at times, rendered certain
      opinions.     [Sergeant] DeAndrea, however, answered the
      questions posed in terms of what was “apparent” based on his
      application of common sense and logic to his physical
      observations.    These opinions were rationally based on the
      perceptions he made that day and presented in terms of what he
      believed based on his knowledge and experience as a trooper for
      22 years with the Pennsylvania State Police.       Each opinion


                                     - 11 -
J-S40033-17


      rendered involved the use of common sense and logic. The term
      “common sense” itself is defined as sound practical judgment that
      is independent of specialized knowledge, training, or the like. The
      appellate courts have distinguished between a witness’ conclusion
      that is cast in the form of an appearance and one that is cast as
      an absolute statement of fact, holding that the former is
      admissible as lay opinion while the latter may require the
      expertise covered by Pa.R.E. 702.

            [Sergeant] DeAndrea’s statements to the jury constituted
      lay opinion testimony that was fully admissible under Pa.R.E. 701.
      None of his testimony required knowledge beyond that possessed
      by laypersons. Accordingly, [Sergeant] DeAndrea was properly
      treated as a lay witness … [and trial counsel] cannot be ineffective
      for not objecting to his testimony on those grounds.

Id. at 14-15 (footnote and citations omitted).

      We find no basis to disturb the ruling of the PCRA court.       Sergeant

DeAndrea’s testimony was grounded upon his observations at the crime scene.

While he provided his opinion regarding the significance of certain evidence,

all of those opinions were rationally based on his personal observations and

did not require specialized knowledge.

      Gerber cites numerous cases for the proposition that a police officer who

is not qualified as an expert witness “can testify only as to the facts he

personally observed and cannot give an opinion to causation.” Gerber’s Brief

at 30. See also id. at 33-35 (collecting cases). Indeed, it is well-established

that “an investigating police officer who did not witness an accident may not

render an opinion at trial as to its cause unless he/she has been qualified as

an expert.”   McKee by McKee v. Evans, 551 A.2d 260, 264 (Pa. Super.

1988) (en banc) (emphasis in original), appeal denied, 562 A.2d 824, 827 (Pa.

1989). Nevertheless, an officer investigating a motor vehicle accident may


                                     - 12 -
J-S40033-17



provide lay opinion testimony regarding the point of impact so long as the

opinion is based on “discernible factors.” Id. at 265. In McKee, supra, this

Court identified relevant “discernible factors” as the officer’s observations of

“debris on the roadway, the positions of the respective vehicles” when the

officer arrived on the scene after the impact, and the officer’s “conversations”

with eyewitnesses. Id.

       Here, Gerber concedes Sergeant DeAndrea “did not testify as to the

‘point of impact’ of the vehicle and [the victim].”      Gerber’s Brief at 32.

However, he complains the officer implied the impact occurred “on the berm

of the road” without sufficient facts to justify his opinion.8 Id. Moreover,

Gerber insists Sergeant DeAndrea’s testimony regarding his conclusion that

the vehicle rolled over the victim twice, based solely on his observation of a

string hanging from the axle, “clearly went well beyond the scope of allowable

testimony as to the ‘point of impact’ … but rather described how and where

the vehicle moved and in what directions.” Id. at 36.

       We conclude, however, that Gerber’s argument implicates the weight of

Sergeant DeAndrea’s testimony, not its admissibility.      Sergeant DeAndrea

testified regarding his observations of the victim’s body when he arrived at

the crime scene, as well as a blood trail leading back to the dirt parking lot,

where he saw tire tracks, a footprint (which appeared to match the victim’s
____________________________________________


8
  Gerber maintains Sergeant DeAndrea’s testimony that the impact was “off
of the roadway and on the berm” was “critical” in supporting the
Commonwealth’s argument that Gerber intentionally struck the victim.
Gerber’s Brief at 32.

                                          - 13 -
J-S40033-17



sneakers), and a handprint.      See N.T., 7/8/2010, at 15-23.        He further

testified regarding his observations of a pattern injury on the victim’s temple

(which resembled the front license plate cover of his car), a tire impression on

the victim’s shirt, black dirt and a tear on the victim’s pants, and the position

of the victim’s body near the curb. See id. at 28-36. Moreover, Sergeant

DeAndrea’s conclusion that the vehicle traveled over the victim forward and

backwards was based upon the location of the string he found attached to the

rear of the support bar, and the pattern observed on the victim’s head and

shirt. He stated:

      [W]e realized that his head has been hit, the patterning injury that
      resembles the front license plate cover, and we know that a tire
      traveled over his torso because his ribs are crushed and the tire
      impression is left on his shirt.

            Recognizing that if the vehicle is traveling towards 611
      there’s no way for the driver’s side to be crushing him here without
      the passenger’s side being off the bridge, it only makes sense that
      the passenger’s side is what struck his head with the license plate
      on the passenger’s side front bumper. The front tire could run
      over his head, and the rear passenger’s side would simply run
      over his shirt.

             The problem becomes that the distance from this tire to this
      tear is about 30 inches, and the distance from the rear tire to the
      thread is only 8. So you can certainly say that that had to be
      made by the front license plate coming in contact with his head
      and that a tire -- a rear tire had to run over his torso if that’s hit
      with his head.

             But there’s no way that the front passenger’s side can hit
      his head and then the right rear tire run over his shirt and at the
      same time tear his pants and cause the patterning injury along
      with making the fiber be attached to that piece of steel. The only
      way for that to happen is to have the vehicle with the right rear
      tire hit him twice.


                                     - 14 -
J-S40033-17



Id. at 90-91. The officer further stated the location of the fiber on the rear

support bar indicated the vehicle was traveling “backwards” when the string

attached to the bottom of the vehicle. Id. at 91. It is evident that Sergeant

DeAndrea’s “opinion” regarding the vehicle’s impact with the victim was based

on both his observations at the scene of the crime and his inspection of the

victim’s car, and was properly admitted as lay opinion testimony.         To the

extent Gerber claims the officer’s testimony was inconsistent with the

evidence, that argument, again, implicates the weight to be afforded Sergeant

DeAndrea’s testimony, not its admissibility.        Accordingly, Gerber’s first

ineffectiveness claim has no arguable merit.9 See Michaud, supra.

       Next, Gerber contends trial counsel was ineffective for failing to present

expert rebuttal testimony from a forensic pathologist and an accident

reconstructionist. See Gerber’s Brief at 41. In support of this claim, Gerber

obtained expert reports from forensic pathologist, Dr. Cyril Wecht, and

accident reconstructionist, James Baranowski, and called both experts to

testify regarding their opinions at the PCRA hearing. See N.T., 5/25/2016, at

4-43, 143-192. He insists the testimony of both experts was necessary to
____________________________________________


9
  We also note that during the PCRA hearing, trial counsel testified he had a
reasonable basis for failing to object to Sergeant DeAndrea’s testimony
regarding the movement of the vehicle, namely that he believed the expert
witness coroner would contradict the officer’s opinion. See N.T., 5/25/2016,
at 75-76, 81. Further, counsel testified he did not believe the officer’s
testimony regarding the location of blood drops on the berm of the road was
significant because his defense was that Gerber did not see the victim when
he struck him with the vehicle. Id. at 67. Therefore, we could also conclude
Gerber failed to establish the second prong of the ineffectiveness test. See
Michaud, supra.

                                          - 15 -
J-S40033-17



contradict the “very prejudicial opinions” of Sergeant DeAndrea that the victim

was run over more than one time, and that the impact was on the berm of the

road. Id. at 43.

      Our review of an allegation that trial counsel was ineffective for failing

to present expert witnesses in rebuttal is well-established:

             “Where a claim is made of counsel’s ineffectiveness for
      failing to call witnesses, it is the appellant’s burden to show that
      the witness existed and was available; counsel was aware of, or
      had a duty to know of the witness; the witness was willing and
      able to appear; and the proposed testimony was necessary in
      order to avoid prejudice to the appellant.” “The mere failure to
      obtain an expert rebuttal witness is not ineffectiveness. Appellant
      must demonstrate that an expert witness was available who would
      have offered testimony designed to advance appellant’s cause.”
      “Trial counsel need not introduce expert testimony on his client’s
      behalf if he is able effectively to cross-examine prosecution
      witnesses and elicit helpful testimony. Additionally, trial counsel
      will not be deemed ineffective for failing to call a medical, forensic,
      or scientific expert merely to critically evaluate expert testimony
      [that] was presented by the prosecution. Thus, the question
      becomes whether or not [defense counsel] effectively cross-
      examined [the Commonwealth’s expert witness].”

Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (internal

quotations omitted).

      Here, the PCRA court found Gerber’s claim failed for several reasons.

First, Gerber did not establish during the PCRA hearing that either Dr. Wecht

or Mr. Baranowski were available and willing to testify on Gerber’s behalf at

the time of trial. See PCRA Court Opinion, 9/26/2016, at 29-30, 34. We

agree his preliminary omission is fatal to his claim. See Commonwealth v.

Wayne, 720 A.2d 456, 470 (Pa. 1998) (finding ineffectiveness claim failed



                                      - 16 -
J-S40033-17



when appellant did not “establish that counsel knew or should have known of

the existence” of potential alibi witness), cert. denied, 528 U.S. 834 (1999).

        With respect to Dr. Wecht, the court also determined that his expert

testimony was not necessary because trial counsel “effectively cross-

examined” the Commonwealth’s expert forensic pathologist, Dr. Isidore

Mihalikis. Id. at 31. At the PCRA hearing, Dr. Wecht opined the victim was

lying on the ground when he was struck once by a vehicle, with the front right

wheel crushing his head and the rear right wheel striking his “thoracic area.”

N.T., 5/25/2016, at 18-19. Further, he testified he believed there would have

been additional injuries if the victim had been struck a second time. See id.

at 29. Dr. Wecht’s trial testimony was similar, in all relevant aspects, to Dr.

Mihalikis’s testimony. On direct examination, Dr. Mihalikis testified that he

did not see “any evidence there was any upright impact” on the victim, i.e.,

he concluded the victim was lying on the ground when he was struck by a car.

N.T. 7/8/2010, at 163. Furthermore, under cross-examination, Dr. Mihalikis

agreed there were no crushing injuries or broken bones in the victim’s legs or

hips.    See id. at 174-175.    See also id. at 176 (agreeing “the lower

extremities of the [victim’s] body from … the waist down was not wheel run

over”). The PCRA court opined this testimony, “that the [v]ictim did not suffer

any crushing injuries from the waist down, [] militate[d] the theory that

[Gerber] backed the vehicle over the [v]ictim.”         PCRA Court Opinion,

9/26/2016, at 31. Accordingly, we agree with the PCRA court that Gerber’s




                                    - 17 -
J-S40033-17



assertion trial counsel was ineffective for failing to present Dr. Wecht’s

testimony on rebuttal has no arguable merit.

      With respect to Mr. Baranowski, we agree with Gerber that his proposed

testimony directly contradicted Sergeant DeAndrea’s testimony concerning

the significance of the string recovered from the rear support bar, the point of

impact with the victim (i.e., on the roadway rather than the berm of the road),

and the number of times Gerber ran over the victim. See Gerber’s Brief at

43; N.T., 5/25/2016, at 156-158. However, although we find portions of his

testimony may have been helpful to the defense, we still agree with the PCRA

court that trial counsel had a reasonable basis for not calling Mr. Baranowksi

as a rebuttal witness, namely his version of the accident would have directly

contradicted the defense. See Chimel, supra, 30 A.3d at 1143 (“Appellant

must demonstrate that an expert witness was available who would have

offered testimony designed to advance appellant’s cause.”).

      Mr. Baranowksi opined the victim was standing in the roadway when he

was struck by the vehicle. See N.T., 5/25/2016, at 173. Furthermore, he

testified that based on the skid marks in the roadway, he believed Gerber

applied the brakes after he struck the victim. See id. Mr. Baranowski stated

that when Gerber struck him, the victim was “probably lifted up onto the hood

for a short time period, traveled with the vehicle as it slowed, he went down

in front of the vehicle, and the vehicle traveled over top of him.” Id. at 173.

      This version of the accident directly contradicted Gerber’s defense,

which trial counsel explained as follows:

                                     - 18 -
J-S40033-17


      The defense was that [Gerber] acted in self-defense as far as the
      stabbing was concerned and that he had no intent, and that he
      claimed that he had no knowledge whatsoever that he had ran
      over Mr. Hagan on the bridge. It was foggy. He claimed that
      he did not see him. He did not feel his vehicle go over him.
      He did not – he didn’t remember that incident.

N.T., 5/25/2016, at 49 (emphasis supplied).        Accordingly, trial counsel

testified he was not concerned with where the impact occurred, i.e., on the

roadway or berm of the road, “because it was Mr. Gerber’s position that he

didn’t know where [the victim] was. He didn’t see him.” Id. at 57. Similarly,

counsel acknowledged he made a strategic decision “not to reference any skid

marks.” Id. at 64. He stated:

      Mr. Gerber did not indicate that he saw the victim or that he made
      any evasive maneuver or attempted to brake his vehicle; so I
      would not bring that out to the jury.

                                   ****

      Mr. Gerber’s position – my recollection of Mr. Gerber’s position
      from day one is that he did not see Mr. Hagan in the roadway, did
      not remember running over him.

Id. at 64-65. See N.T., 7/13/2010, at 29 (Gerber testifying he did not see

anyone when he drove away from the scene of the assault), at 66 (Gerber

testifying he “didn’t realize at the time [he] ran anyone over” and he “never

knew [he] hit Mr. Hagan”), at 67 (same).        Therefore, Mr. Baranowksi’s

testimony that (1) Gerber braked when he struck the victim, and (2) the

victim’s body was lifted onto the hood of the car for a short time, would have

undermined counsel’s defense at trial – supported by Gerber’s own testimony

- that Gerber was not aware he struck anyone with the vehicle. Consequently,

we agree with the PCRA court that counsel was not ineffective for failing to

                                    - 19 -
J-S40033-17



call either expert witness on rebuttal. See PCRA Court Opinion, 9/26/2016,

at 25-36.

       In his third issue, Gerber maintains trial counsel was ineffective for

failing to effectively cross-examine Sergeant DeAndrea regarding his critical

misstatement concerning the location of the trail of blood drops from the

parking lot to the victim’s body.10 See Gerber’s Brief at 45-50. Gerber insists

the officer’s testimony that “[a]ll of the blood that we found was on the berm

side” and “not in the travel portion of the road” was directly contradicted by

Commonwealth Exhibit 72, which “detailed the correct location of the blood

drops.” Gerber’s Brief at 45 (emphasis and citations omitted). He maintains

the exhibit establishes that of the 13 blood drops identified, only one was on

the berm of the road, three were on the fog line, and the remaining nine were

in the roadway. See id. at 46. Further, Gerber emphasizes that the exhibit

shows skid marks were also on the roadway, “which would have established

that the victim was on the roadway, not the berm, when he was struck.” Id.

at 47. Gerber contends counsel’s failure to cross-examine Sergeant DeAndrea

on these misstatements was prejudicial to his case because the prosecutor


____________________________________________


10
   We note that in his statement of questions involved, Gerber also criticizes
counsel’s failure to effectively cross-examine Trooper George Surma. See
Gerber’s Brief at 4, 44. However, he fails to make any mention of Trooper
Surma in the argument portion of his brief. Therefore, that claim is waived.
See Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016)
(“[I]ssues raised in a Brief’s Statement of Questions Involved but not
developed in the Brief's argument section will be deemed waived.”) appeal
denied, 161 A.3d 796 (Pa. 2016).

                                          - 20 -
J-S40033-17



insisted in both his opening and closing statements that Gerber “intentionally

drove the vehicle over the fog line to strike and kill the victim.” Id. at 49.

      The PCRA court concluded trial counsel had a reasonable basis for failing

to cross-examine the officer about his misstatement.          See PCRA Court

Opinion, 5/26/2016, at 16-19. We agree.

      As detailed above, counsel’s defense strategy was to emphasize Gerber

stabbed the victim in self-defense, and fled the scene unaware that he had

struck the victim with the car. See N.T., 5/25/2016, at 49, 57. This strategy

was supported by Gerber’s trial testimony that he “didn’t realize at the time

[he] ran anyone over” and “never knew he hit the victim.” N.T., 7/13/2010,

at 66-67. Therefore, counsel testified he made the strategic decision not to

cross-examine Sergeant DeAndrea regarding the location of the blood trail.

He explained:

      I didn’t feel that I should get caught up into where [the victim]
      was, because it was Mr. Gerber’s position that he didn’t know
      where [the victim] was. He didn’t see him. So whether he was,
      you know, 6 inches on one side of the white line or the other or a
      foot on one side of the white line or the other, Mr. Gerber’s
      defense was that he didn’t see [the victim]. It was foggy.

                                    ****

      But, again, I did not want to get into an argument with the
      Commonwealth as to, you know, again, where exactly the blood
      drops were. I felt I would be falling into their trap as to whether
      he was on the berm or on the road surface, when the actual
      defense was he didn’t know where [the victim] was. We didn’t
      know where he was. Mr. Gerber testified he didn’t see him. So I
      felt that it was somewhat immaterial as to whether or not he was,
      you know, again, slightly over or over the fog line one way or the
      other.


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J-S40033-17



N.T., 5/25/2016, at 56-57, 61-62.

     Based on counsel’s stated strategy, the PCRA court opined:

            [Defense counsel’s] decision not to cross-examine
     [Sergeant] DeAndrea about the exact location of the blood drops
     was reasonable. [Gerber] was on trial for murdering the [v]ictim
     by stabbing him in the vehicle and, shortly thereafter, running him
     over with the vehicle. [Gerber’s] defenses throughout the entire
     case were that he stabbed the [v]ictim in self-defense and he did
     not intend to run over the [v]ictim with the vehicle. [Gerber]
     testified that he did not see the [v]ictim as he was driving the
     vehicle, mainly due to the darkness and fog. N.T. 7/13/10, pp.
     28-31, 67. Further, [Gerber] testified that he never knew he ran
     over the [v]ictim, stating "I was terrorized. I could have drove
     through the Mummers Day Parade and not even know I hit
     anybody I was so scared. All I wanted to do was get away." N.T.
     7/13/10, p. 67. Because [Gerber] never saw the [v]ictim on or
     near the road, nor did he know he ran over the [v]ictim, [trial
     counsel] made a strategic decision not to make an issue out of
     whether the majority of the [v]ictim's blood drops were on the
     berm side or roadway side of the fog line. Therefore, [counsel]
     believed the blood drops were immaterial and arguing whether the
     [v]ictim was on the berm side or roadway side could damage the
     defense’s theory.

           For the reasons stated above, [counsel’s] decision not to
     cross-examine [Sergeant] DeAndrea about the exact location of
     the blood drops was reasonable. Thus, we will not second-guess
     his tactics and our ineffectiveness inquiry ends.

PCRA Court Opinion, 9/26/2016, at 18-19.

     We conclude the PCRA court’s analysis of this claim is legally correct,

and supported by the record. See Mitchell, supra. We emphasize:

     “Generally, where matters of strategy and tactics are concerned,
     counsel’s assistance is deemed constitutionally effective if he
     chose a particular course that had some reasonable basis
     designed to effectuate his client’s interests.” Commonwealth v.
     Miller, 572 Pa. 623, 819 A.2d 504, 517 (2002). A claim of
     ineffectiveness generally cannot succeed through comparing, in


                                    - 22 -
J-S40033-17


      hindsight, the trial strategy employed with alternatives not
      pursued. Id.

Commonwealth v. Washington, 927 A.2d 586, 599–600 (Pa. 2007). Here,

counsel’s defense strategy was reasonable, particularly considering Gerber’s

insistence that that he did not see the victim on the roadway, and did not even

realize he had struck a person on the night in question.      Accordingly, this

claim, too, fails.

      In his penultimate issue, Gerber asserts counsel was ineffective when

he failed to object to the prosecutor’s repeated questions concerning Gerber’s

strategic discussions with trial counsel, and his previously entered guilty plea

to third-degree murder. See Gerber’s Brief at 50-57.

      Specifically, Gerber contends the following exchanges during the

prosecutor’s cross-examination were improper:

      Q [by Prosecutor]      … Now, you’ve spoken to your lawyers
      about possible defenses in this case --- … did you not?

      …

      A [by Gerber]     I only ever had one defense.

      Q     Did your lawyers explain to you that if you were intoxicated
      to enough of a degree that it may lead to your conviction of a
      lesser charge?

      A     Well, that’s why I was convicted of a lesser charge to begin
      with.

      Q      Have you gotten advice from counsel that the more drunk
      you were the more that might benefit you in a defense of reducing
      first degree murder down?

      A    He made me aware of that, but I made him aware I was
      drunk. It was never an issue of first degree because I was drunk.

                                    ****


                                     - 23 -
J-S40033-17


      Q     And your lawyers, I assume, also told you that before you
      could use deadly force to defend yourself that you had a duty to
      retreat if you could retreat. They told you that, correct?

      A     I’ve read the law. He didn’t tell me that.

                                   ****

      Q     And you realized that you’re going to have a tough time
      explaining why you would run somebody over at a time where you
      had no threat. I assume your lawyers told you that?

            [Defense Counsel]: Objection, Your Honor.

            THE COURT: Sustained.       You don’t have to answer that
      question, Mr. Gerber.

N.T., 7/13/2010, at 60-61, 61-62, 67.        The prosecutor then proceeded to

cross-examine Gerber regarding Sergeant DeAndrea’s testimony that after he

struck the victim, Gerber backed over him again. Gerber testified that he

“never knew [he] hit him, so [he] know[s he] didn’t put it in reverse and back

over him.” Id. at 68-69. Thereafter, the following exchange took place:

      Q [by prosecutor]        That would be pretty hard to defend,
      wouldn’t it?

      A [by Gerber]      Backing over someone? I wouldn’t – I would
      have took the deal that you guys offered me, and I wouldn’t even
      be here if I was an animal like that. I never knew I hit Mr. Hagan.

      Q     What are you talking about?

      A     The 10 years.

      Q     What 10 years?

      A     I would only – I would be released in five years from this
      date if the Court didn’t overturn the case.

      Q     Overturn what case, sir?

      A     My conviction.

      Q     What conviction?

                                    - 24 -
J-S40033-17


      A       When my attorney died before trial. …

            Three years ago, before trial was to start, my attorney died.
      I was given a choice of going to trial or taking a plea agreement.

Id. at 69.     The prosecutor then continued to question Gerber about the

circumstances surrounding his guilty plea, and referred to statements Gerber

made during the plea colloquy, including his acknowledgment that he was

“responsible for Mr. Hagan’s death” and while he did not intend to “run over

him,” he did intend “to stab Mr. Hagan[.]” See id. at 75-76.

      On redirect, trial counsel also asked Gerber about the guilty plea,

emphasizing that he only accepted the plea because his attorney had just

died, and his replacement was unprepared for trial. See id. at 143-145. Prior

to closing arguments, the parties entered into an agreement that neither

attorney would refer to the withdrawn plea during closing arguments, and the

trial court would charge the jury to disregard any evidence they heard

regarding a prior disposition on the case. See id. at 162-164. Pursuant to

the agreement, the trial court charged the jury as follows:

      During the course of the trial, you heard evidence about a prior
      disposition of this case. I’m instructing you that you are to
      disregard any evidence that you heard regarding the prior
      disposition of this case. You are to base your decision solely upon
      the evidence as it was introduced during the course of this trial
      and in accordance with my instructions.

Id. at 288.

      With this background in mind, we consider Gerber’s ineffectiveness

claim on appeal, namely that the prosecutor’s questions violated both

attorney-client privilege and Pennsylvania Rule of Evidence 410. Section 5916


                                     - 25 -
J-S40033-17



of Title 42 codifies the protection of confidential communications between an

attorney and his client:

      In a criminal proceeding counsel shall not be competent or
      permitted to testify to confidential communications made to him
      by his client, nor shall the client be compelled to disclose the
      same, unless in either case this privilege is waived upon the trial
      by the client.

42 Pa.C.S. § 5916.         It is well-settled that “the attorney-client privilege

operates in a two-way fashion to protect confidential client-to-attorney or

attorney-to-client communications made for the purpose of obtaining or

providing professional legal advice.” Commonwealth v. Schultz, 133 A.3d

294, 313 (Pa. Super. 2016). Moreover, it is well-settled that the Pennsylvania

Rule of Evidence 410 prohibits reference to a defendant’s prior plea agreement

or statements made during plea discussions when, as here, the agreement

was subsequently withdrawn.        See Pa.R.E. 410(a)(1), (4).    However, this

Court has held [u]ltimately, it is clear that the rights provided for in Rule 410

are waivable.”     Commonwealth v. Widmer, 120 A.3d 1023, 1028

(2015), appeal denied, 158 A.3d 78 (Pa. 2016) (defendant waived right to

object to admissions he made in plea proffer when, as part of the agreement,

defendant acknowledged his statements could be used against him if he

decided not to proceed with the plea).

      In the present case, Gerber insists the prosecutor’s questions were

highly improper, and counsel had no reasonable basis for failing to object.

See Gerber’s Brief at 55. He further asserts his mere mention of “the deal”

with the Commonwealth, did not justify the prosecutor’s in-depth cross-

                                       - 26 -
J-S40033-17



examination regarding statements he made at the guilty plea colloquy, which

was subsequently invalidated as involuntary. Id. at 56. Gerber concludes:

            [His] claims of counsel ineffectiveness have arguable merit,
      counsel did not have a reasonable basis for failing to act, and he
      has suffered prejudice as a result of counsel’s deficient
      performance for the jury was not going to accept [Gerber’s]
      affirmative self-defense defense after hearing that he had
      previously pleaded guilty to third-degree murder, a malicious
      killing.

Id. at 57.

      The PCRA court concluded both of these claims warranted no relief. See

PCRA Court Opinion 5/26/2016, at 38-46.       First, with respect to counsel’s

failure to object to questions concerning attorney-client privilege, the court

acknowledged Gerber’s claim had arguable merit since at least some of the

prosecutor’s questions inquired into the substance of Gerber’s discussions with

his attorney. See id. at 45. Nevertheless, the PCRA court concluded counsel

had a reasonable basis for failing to object, and Gerber failed to demonstrate

prejudice. We agree.

      At the PCRA hearing, trial counsel explained why he neglected to object

to the prosecutor’s questions implicating attorney/client discussions:

      I felt Mr. Gerber was handling the questions. Again, you know,
      strategically – you know, my experience is, you know, especially
      when your client’s on the stand and you start objecting to every
      question, it’s the situation like you’re trying to hide something.
      You’re trying to overly protect him. Again, there are rapid-fire
      questions and those were the decisions that I made.

N.T., 5/25/2016, at 109. We are constrained to agree with the PCRA court

that, based on the specific facts of this case, trial counsel demonstrated a


                                    - 27 -
J-S40033-17



“reasonable strategic basis for his actions.” PCRA Court Opinion 9/26/2016,

at 45.    Furthermore, and more importantly, Gerber has utterly failed to

establish prejudice.11     As the PCRA court opined:

       The Commonwealth presented other evidence for the trier of fact
       to find, beyond a reasonable doubt, that [Gerber] committed the
       offenses of which he was convicted. [Gerber] cannot show that,
       but for the Commonwealth’s questions about [Gerber’s]
       conversations with trial counsel, the outcome of the proceedings
       would have been different.

Id. at 46.12 See Mason, supra.

       Second, with regard to the prosecutor’s questions concerning Gerber’s

previously withdrawn guilty plea, the PCRA court determined the claim lacked

arguable merit because Gerber “unilaterally introduced his withdrawn guilty

plea for his own strategic purposes.” PCRA Court Opinion 9/26/2016, at 38.

The court emphasized trial counsel “specifically advised [Gerber] to not

discuss his withdrawn guilty plea.” Id. at 39, citing N.T., 7/13/2010, at 162.

Nevertheless, Gerber broached the subject twice before the Commonwealth

began to question him about the prior plea.        See N.T., 7/13/2010, at 60

(Gerber stating, “Well, that’s why I was convicted of a lesser charge to begin

____________________________________________


11
   We note Gerber provides no prejudice analysis in his brief specific to the
attorney/client privilege issue. See Gerber’s Brief at 50-57.

12
   The PCRA court found “there were numerous factors at trial that provide
ample support for a jury to reject [Gerber’s] version of the incident,” including
the fact that Gerber conceded he lied under oath during his prior grand jury
testimony, and “the specifics of [his] story constantly evolved during the
investigation process and even during his testimony at trial.” PCRA Court
Opinion, 9/26/2016, at 51.


                                          - 28 -
J-S40033-17



with.”); at 69 (Gerber stating, “I would have took the deal that you guys

offered me, and I wouldn’t even be here if I was an animal like that.”). The

Pennsylvania Supreme Court has held that once a defendant “open[s] the

door” to a subject, he “cannot [later] complain because the Commonwealth

chose to further examine what was behind that door.”       Commowealth v.

LaCava, 666 A.2d 221, 234 (Pa. 1995).         See also Commonwealth v.

Patosky, 656 A.2d 499, 504 (Pa. Super. 1995) (“If a defendant delves into

what would have been objectionable testimony on the Commonwealth’s part,

then the Commonwealth can probe into this objectionable area.”), appeal

denied, 668 A.2d 1128 (Pa. 1995). Indeed, the PCRA court found Gerber’s

unsolicited comments regarding his prior conviction were an attempt “to win

favor with the jury” and “corroborate one of his multiple defenses offered at

trial, i.e., that he was too intoxicated to form the requisite intent for first

degree murder.” PCRA Court Opinion, 5/26/2016, at 40.

      Further, the PCRA court emphasized “the jury was specifically instructed

to disregard any evidence with respect to the withdrawn guilty plea.” Id. at

41. See N.T., 7/13/2010, at 288. “The law presumes that the jury will follow

the instructions of the court.” Commonwealth v. Brown, 786 A.2d 961, 971

(Pa. 2001). Therefore, the court concluded Gerber’s claim has no arguable

merit.

      We find no basis to disagree. The first time Gerber mentioned he was

“convicted of a lesser charge to begin with,” the prosecutor did not question

him about the plea. N.T., 7/13/2010, at 60. However, Gerber brought up his

                                    - 29 -
J-S40033-17



prior plea again, commenting that if he had backed over the victim a second

time, like the Commonwealth claimed, he “would have took the deal [the

Commonwealth] offered [him].” Id. at 69. Because Gerber brought up his

prior guilty plea, unsolicited by the Commonwealth, on two occasions, we

agree the Commonwealth’s follow-up inquiry was permissible. Moreover, as

noted by the PCRA court, the trial court provided the jury with a cautionary

charge, instructing them to “disregard any evidence that [they] heard

regarding the prior disposition of this case,”13 and we must presume the jury

followed the court’s instructions. Brown, supra. Accordingly, we agree with

the PCRA court’s conclusion that this claim has no arguable merit.

        Nonetheless, it merits mention the PCRA court also found counsel had a

reasonable basis for failing to object to this line of inquiry. See PCRA Court

Opinion, 9/26/2016, at 41-42.          Indeed, at the PCRA hearing, trial counsel

explained:

        [O]nce it was blurted out, I was going to see where it was going.
        And where it went, if my recollection is correct, was that Mr.
        Gerber – I had anticipated and I think I was correct – Mr. Gerber
        was going to get out that a plea was offered to him, that he only
        took it because his lawyer had died and that the Commonwealth
        had offered him a plea to third-degree murder.

               He was attempting, and I believe he testified, around a
        situation of the plea that you guys wouldn’t have offered me the
        plea if you didn’t think that it was third degree or whatever.

              I felt strategically that what the jury was going to hear was
        that a plea was offered, that the only reason Mr. Gerber took it
____________________________________________


13
     N.T., 7/13/2010, at 288.


                                          - 30 -
J-S40033-17


         was because he felt pressured because his lawyer had died, that
         he had appealed it, that it was overturned, but that the
         Commonwealth on the other side had offered that plea because
         they felt that their case was weak or that they had a problem with
         the intoxication defense or the self-defense or whatever. That
         was the reason I did not object. That was also the reason why I
         asked some additional questions on [redirect]-examination to try
         to get that out to the jury.

                                      ****

                … I didn’t want it to come out when Mr. Gerber was
         testifying. And he was instructed that it was not going to come
         out, but he brought it out himself. Once he did that, then, yes –
         I decided that once it was out, that I was going to use it to his
         benefit. Because he had withdrawn the plea, and it was upheld
         that it was improperly, you know, entered, that he was, you know,
         pressured into taking it because of what he felt.

               But that didn’t, you know, diminish the fact that an
         agreement is just that, an agreement between both parties. And
         the Commonwealth had also agreed that it wasn’t first-degree
         murder. So, yes, I wanted the jury to hear that. Once it was out
         there and once we were in that position, I felt that was the best
         alternative to do.

N.T., 5/25/2016, at 103-104, 105-106. Counsel’s stated basis for failing to

object once “the bell was rung” constitutes a reasonable defensive strategy.

Consequently, we agree Gerber’s fourth challenge to counsel’s ineffectiveness

fails.

         In his final claim, Gerber insists that even if this Court concludes his

individual claims do not warrant relief, “collectively the prejudice to him from

all of these various failures of trial counsel was in combination so great that a

new trial must be nevertheless awarded.” Gerber’s Brief at 58.

         It is axiomatic that “no number of failed [ineffectiveness] claims may

collectively warrant relief if they fail to do so individually.” Commonwealth


                                       - 31 -
J-S40033-17



v. Johnson,      966    A.2d   523,   532     (Pa.   2009)   (quotations   omitted).

Nevertheless, our Supreme Court has clarified “that this principle applies to

claims that fail because of lack of merit or arguable merit.” Commonwealth

v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (citation omitted). Rather, “[w]hen

the failure of individual claims is grounded in lack of prejudice, then the

cumulative prejudice from those individual claims may properly be assessed.”

Id. (citations omitted).

      Here, we have concluded that all of Gerber’s claims failed because they

either lacked arguable merit, or counsel had a reasonable basis for his actions.

Therefore, having not reached the prejudice analysis for any of his claims

(save one), we need not consider whether the cumulative prejudice of his

allegations of error justifies a new trial.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




                                       - 32 -
