Com. v. Alexander, J.

J-S21024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOHN ALEXANDER :

:

Appellant : No. 1331 EDA 2023

Appeal from the PCRA Order Entered May 26, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0111361-2006

BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 5, 2024

Appellant John Alexander appeals pro se from the order dismissing his

first Post Conviction Relief Act1 (PCRA) petition. On appeal, Appellant raises

numerous claims of ineffective assistance of counsel. We affirm.

The PCRA court set forth the following factual and procedural history:

The evidence at trial showed that on the evening of May 5, 2003,

the victim, Reinaldo Zayas, was kidnapped when he met with

Appellant to purchase a plasma television. When the victim did

not return home, his girlfriend, Yomaxi Santos, tried calling him

by cell phone. Santos testified that one of her calls was eventually

answered and Zayas was heard screaming. After the call, Zayas’s

brother, Marcos Gutierrez, went to look for him. Zayas called 911.

Police officers arrived at Zayas’s home but Santos did not tell them

about receiving a call from Zayas or hearing him screaming.

When Gutierrez returned home, he received a call from the

kidnappers, demanding that money be dropped off at 9 th and

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.

J-S21024-24

Glenwood. Gutierrez worked with police to deliver $4,000 to the

requested location, but the ransom was never picked up.

The following day, May 6, 2003, Appellant called the police and

reported that he was abducted and beaten. At Episcopal Hospital,

Appellant told Officer Steven Johnson that Appellant was forced

into a van, with Zayas, at gunpoint, and that Appellant was forced

to call his girlfriend, Michelle Carter, in order to request $3,500 in

ransom money. Appellant told Officer Johnson that the

kidnappers took Appellant to an abandoned house, where he was

duct taped, beaten, and burned. Appellant then told Officer

Johnson that he passed out several times before awak[ing] around

22nd and Lehigh [Avenue]. While at the hospital, Appellant also

gave a statement to Detective Ken Golczewski saying that when

he woke up, he found a payphone near Broad and Lehigh and

called Michelle Carter to pick him up.

Appellant then gave a statement to Homicide Detective Aaron

Booker. He told Detective Booker that when the kidnappers let

him go, they walked him to an alleyway at 22 nd and Sedgley.

Appellant told Detective Booker that while he told East Detectives

that Michelle Carter picked him up at Broad and Lehigh, he walked

to his aunt’s house at 3500 Old York Road.

After his interview with Homicide, Appellant rode with Detective

Greg Pinto to show him where [the kidnappers released him].

Appellant told Detective Pinto that he was released on railroad

tracks and took Detective Pinto to 22 nd and Sedgley. Appellant

explained that he picked up a pay phone at 17 th and Lehigh, which

did not work, and so [he] went to 15 th and Lehigh to find a working

pay phone. After checking the 15th and Lehigh pay phone himself,

Detective Pinto found that it was not working, and then took

Appellant back to East Detectives.

Next, Appellant met with Detective Robert Fetters and agreed to

help detectives locate Reinaldo Zayas. After driving with

detectives for approximately 45 minutes and heading westbound

on Cecil B. Moore Avenue, Appellant said, “[i]f you flood this area,

you will probably find the van, if the police flood the area.” The

detectives and Appellant approached a van near 1800 Cecil B.

Moore Avenue, and Appellant told them, “it looks like the van.”

Zayas’s body was found inside the van.

Several weeks later, on June 12, 2003, Michelle Carter called

police regarding a domestic disturbance and told them that

Appellant killed someone two weeks before. Michelle Carter’s

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brother, Maurice Carter, gave an interview to Homicide and told

them that Appellant admitted to Maurice Carter that Appellant set

Zayas up. Maurice Carter later recanted [his statement].

At trial, Dr. Edwin [Lieberman] testified that he determined, to a

reasonable degree of medical certainty, that Zayas’s cause of

death was multiple stab wounds to the buttock and thigh and that

the manner of death was homicide. Dr. [Lieberman] testified from

his observations made regarding photographs taken during the

autopsy and the autopsy report that Dr. Ian Hood prepared. After

a grand jury investigation, Appellant was arrested on September

20, 2005. On March 13, 2007, a jury sitting before the [trial court]

found Appellant guilty of second-degree murder, robbery,

kidnapping for ransom, unlawful restraint, and conspiracy. [2] On

May 17, 2007, [the trial court] imposed a mandatory sentence of

life [imprisonment] without parole and 5 to 10 years running

concurrent on Appellant’s conspiracy charge. Appellant filed a

post-sentence motion on May 22, 2007. The [trial court] denied

the post-sentence motion on October 2, 2007.

Appellant appealed and the Superior Court affirmed Appellant’s

judgments of sentence on February 5, 2009. [See

Commonwealth v. Alexander, 2551 EDA 2007 (Pa. Super. filed

Feb. 5, 2009) (unpublished mem.).] Appellant filed a petition for

allowance of appeal, which the Supreme Court of Pennsylvania

denied on August 3, 2010. [See Commonwealth v. Alexander,

3 A.3d 669 (Pa. 2010). Appellant did not file a petition for a writ

of certiorari with the Supreme Court of the United States.]

Appellant filed a pro se PCRA petition on May 9, 2011. He filed an

amended PCRA petition on December 22, 2017 [Fn2] and a

supplemental petition on May 3, 2018, seeking reinstatement of

his direct appeal and post-sentence motion rights. After the

Commonwealth responded, the [PCRA court] issued a dismissal

notice under [Pa.R.Crim.P.] 907, on October 17, 2018. PCRA

counsel filed a response to the [PCRA court’s] Rule 907 notice on

March 3, 2020, raising the aforementioned ineffectiveness claims.

The Commonwealth filed its motion to dismiss the supplemental

claims on June 23, 2020. On September 21, 2020, Judge Minehart

issued a second notice of intent to dismiss under Rule 907. On

November 19, 2020, the [PCRA] court formally dismissed

____________________________________________

2 18 Pa.C.S. §§ 2502(b), 3701(a), 2901(a)(1), 2902(a), and 903(a),

respectively.

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Appellant’s PCRA petition. However, on November 19, 2020, the

[PCRA] court rescinded that order. [Subsequent] counsel entered

an appearance shortly thereafter and filed the instant

supplemental pleading. On September 28, 2021, Appellant filed

a supplemental PCRA. On March 17, 2022, [the] Commonwealth

filed a motion to dismiss [Appellant’s] PCRA petition.

[Fn2] Between the filing of Appellant’s pro se petition and his

amended petition, several different counsel were appointed

and withdrew, resulting in multiple continuances. This led

to Appellant’s amended petition not being filed for over six

years.

PCRA Ct. Op., 10/23/23, at 1-4 (footnote omitted and formatting altered).

The PCRA court entered an order dismissing Appellant’s PCRA petition

on May 26, 2023.3 Appellant filed a timely counseled notice of appeal on May

27, 2023. Although the PCRA court did not order Appellant to file a Pa.R.A.P.

1925(b) statement, the PCRA court issued an opinion addressing Appellant’s

PCRA claims.

On June 24, 2023, Appellant’s counsel, Teri B. Himebaugh, Esq., filed

an application to withdraw, stating that Appellant wished to proceed pro se.

See Application to Withdraw as Counsel, 6/24/23. This Court entered an order

on June 30, 2023, remanding the matter to the PCRA court to conduct a

____________________________________________

3 The PCRA court’s docket reflects that the PCRA court entered orders

dismissing Appellant’s PCRA petition on March 15, 2023, May 16, 2023, May

24, 2023, and May 26, 2023. Because the timeliness of the appeal was

implicated, this Court directed the PCRA court to clarify the date on which the

PCRA petition was dismissed and to correct the PCRA court docket. The PCRA

court responded on July 31, 2023, indicating that the PCRA petition was

dismissed on May 26, 2023.

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Grazier4 hearing. On November 8, 2023, the PCRA court held a Grazier

hearing and found that Appellant knowingly, intelligently, and voluntarily

waived his right to counsel and granted Attorney Himebaugh’s motion to

withdraw as counsel. See PCRA Ct. Order, 11/9/23.

Appellant raises the following issues for our review:

1. Did defense counsel[5] render ineffective assistance at trial in

failing to lodge a proper objection, and failing to take appeal

issue with, the prosecution’s presentation of testimony and

argument about prior statements by Michelle Carter, including

an accusation that [Appellant] had “killed someone” two weeks

before, and were all previous PCRA counsel ineffective in failing

to investigate, identify or present this instance of defense

counsel’s ineffectiveness as a PCRA claim?

2. Did defense counsel render ineffective assistance at trial in

failing to lodge any objection, and failing to take any appeal

issue with, the prosecution’s presentation of testimony and

argument repeatedly referencing [Appellant’s] pre-arrest

silence and refusals to cooperate with police investigators, and

were all previous PCRA counsel ineffective in failing to

investigate, identify or present this instance of defense

counsel’s ineffectiveness as a PCRA claim?

3. Did defense counsel render ineffective assistance at trial in

failing to lodge a proper objection, and failing to take appeal

issue with, the prosecution’s presentation of testimony and

argument referencing other, unrelated criminal acts attributed

to [Appellant], without any cautionary instruction or guide or

limit jury consideration of same, and were all previous PCRA

counsel ineffective in failing to investigate, identify or present

this instance of defense counsel’s ineffectiveness as a PCRA

claim?

____________________________________________

4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

5 The record reflects that J. Michael Farrell, Esq., represented Appellant at trial

and on direct appeal.

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4. Did defense counsel render ineffective assistance at trial in

failing to lodge any objection, and failing to take any appeal

issue with, the trial court’s instruction, during its jury charge,

directing that the jury “must give weight” to testimony about

“statements made” by that witness, and were all prior PCRA

counsel ineffective in failing to investigate, identify or present

this instance of defense counsel’s ineffectiveness as a PCRA

claim?

5. Did defense counsel render ineffective assistance at trial in

failing to lodge any objection, and failing to take any appeal

issue with, the trial court’s omission, from its jury charge, of

pertinent and applicable instructions, and were all prior PCRA

counsel ineffective in failing to investigate, identify or present

this instance of defense counsel’s ineffectiveness as a PCRA

claim?

6. Did defense counsel render ineffective assistance at trial in

failing to subpoena and call Police Officer Craig Van Sciver to

testify as a defense witness, and were all previous PCRA

counsel ineffective in failing to investigate, identify or present

this instance of defense counsel’s ineffectiveness as a PCRA

claim?

7. Did defense counsel render ineffective assistance at trial in

failing to lodge any objection, and failing to take any appeal

issue with, the prosecution’s presentation of hearsay testimony

(by an assistant medical examiner) as to opinions and

conclusions contained within: (A) the victim’s autopsy and

toxicology reports, and (B) [Appellant’s] emergency room

medical records, and were all previous PCRA counsel ineffective

in failing to properly present, develop and support this claim?

8. Did defense counsel render ineffective assistance at trial in

failing to lodge a proper objection, and failing to take appeal

issue with, the prosecution’s presentation of testimony and

argument utilizing previous statements by witnesses as

substantive evidence, and were all prior PCRA counsel

ineffective in failing to investigate, identify or present this

instance of defense counsel’s ineffectiveness?

9. Did defense counsel render ineffective assistance at trial in

erroneously and unreasonably advising [Appellant] to forego or

waive his constitutional right to testify on his own behalf, and

were all prior PCRA counsel ineffective in failing to properly

present, argue, and support this claim?

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10. Did all previous PCRA counsel render ineffective assistance

during each of their respective representations: (A) in failing to

investigate, identify and present claims of ineffective

assistance by defense (trial/appellate) counsel; and (B) in

failing to properly develop supporting arguments and citations

to applicable law, and n failing to adequately present or

reference pertinent facts, as to those claims that were

presented?

Appellant’s Brief at 5-7.6

Because all ten of Appellant’s issues raise claims of ineffective assistance

of counsel, we begin with our well-settled standard of review:

In reviewing the denial of a PCRA petition, our standard of review

is limited to examining whether the PCRA court’s determination is

supported by the evidence of record and whether it is free of legal

error. The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we

apply a de novo standard of review to the PCRA court’s legal

conclusions.

Furthermore, to establish a claim of ineffective assistance of

counsel, a defendant must show, by a preponderance of the

____________________________________________

6 Preliminarily, we note that Appellant has not raised all ten of these issues in

his most recent amended PCRA petition nor in his response to the PCRA court’s

Rule 907 notice of intent to dismiss Appellant’s PCRA petition without a

hearing. Typically, any claims not first raised before the PCRA court are

waived on appeal. See Pa.R.A.P. 302(a). In all ten of his issues, however,

Appellant raises a layered claim of ineffective assistance on the part of his

PCRA counsel. Our Supreme Court has adopted a rule permitting PCRA

petitioners to “raise claims of ineffective [assistance of] PCRA counsel at the

first opportunity, even if on appeal.” Commonwealth v. Bradley, 261 A.3d

381, 405 (Pa. 2021). This Court has held that Bradley permits us to review

an allegation of PCRA counsel’s ineffectiveness, even if it is raised for the first

time on appeal, rather than in a response to a Rule 907 notice. See

Commonwealth v. Taylor, 1654 MDA 2022, 2023 WL 5202414 at *3 (Pa.

Super. filed Aug. 14, 2023) (unpublished mem.); see also Pa.R.A.P. 126(b)

(stating that unpublished memoranda filed after May 1, 2019 may be cited for

persuasive value). Accordingly, we decline to find waiver and shall review

Appellant’s issues on their merits.

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evidence, ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or

innocence could have taken place. The burden is on the defendant

to prove all three of the following prongs: (1) the underlying claim

is of arguable merit; (2) that counsel had no reasonable strategic

basis for his or her action or inaction; and (3) but for the errors

and omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different.

* * *

Boilerplate allegations and bald assertions of no reasonable basis

and/or ensuing prejudice cannot satisfy a petitioner’s burden to

prove that counsel was ineffective. Moreover, a failure to satisfy

any prong of the ineffectiveness test requires rejection of the

claim of ineffectiveness.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)

(citations omitted and formatting altered); see also Commonwealth v.

Bardo, 105 A.3d 678, 684 (Pa. 2014) (stating that “[c]ounsel is presumed

effective, and the petitioner bears the burden of proving otherwise”).

Additionally, “[c]ounsel cannot be found ineffective for failing to pursue a

baseless or meritless claim.” Commonwealth v. Davis, 262 A.3d 589, 596

(Pa. Super. 2021) (citation omitted).

“Where a petitioner alleges multiple layers of ineffectiveness, he is

required to plead and prove, by a preponderance of the evidence, each of the

three prongs of ineffectiveness relevant to each layer of representation.”

Commonwealth v. Parrish, 273 A.3d 989, 1004 n.11 (Pa. 2022) (citation

omitted).

Specifically, our Supreme Court has explained:

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To be eligible for relief on [layered claims of ineffective assistance

of counsel, a petitioner] must plead and prove that: (1) trial

counsel was ineffective for a certain action or failure to act; and

(2) [subsequent] counsel was ineffective for failing to raise trial

counsel’s ineffectiveness. As to each relevant layer of

representation, [a petitioner] must meet all three prongs of the

Pierce[7] test for ineffectiveness. A failure to satisfy any of the

three prongs of the Pierce test requires rejection of a claim of

ineffective assistance of trial counsel, which, in turn, requires

rejection of a layered claim of ineffective assistance of

[subsequent] counsel.

Thus, if the petitioner cannot prove the underlying claim of trial

counsel ineffectiveness, then petitioner’s derivative claim of

[subsequent] counsel ineffectiveness of necessity must fail, and it

is not necessary for the court to address the other two prongs of

the Pierce test [i.e., the reasonable basis and prejudice prongs]

as applied to [subsequent] counsel.

Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (citations

omitted and formatting altered).

Michelle Carter’s Testimony

In his first issue, Appellant contends that Attorney Farrell provided

ineffective assistance because he failed to object following testimony

regarding Michelle Carter’s accusation that Appellant had killed someone two

weeks earlier. Appellant’s Brief at 21. Ms. Carter’s accusation was made in

the context of the police responding to a dispatch of a person screaming at

3209 Rorer Street on June 12, 2003. N.T. Trial, 3/5/07, at 39-40. In his

brief, Appellant concedes that an objection was offered at trial; however,

Appellant argues that Attorney Farrell was ineffective for failing to raise that

____________________________________________

7Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987); see also

Sandusky, 203 A.3d at 1043 (same).

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issue on direct appeal. Appellant’s Brief at 21. Because the record reflects

that objections in fact were raised to the evidence in question, our review shall

be limited to whether Attorney Farrell rendered ineffective assistance for

failing to raise this issue on direct appeal. See N.T. Trial, 3/2/07, at 143; N.T.

Trial, 3/5/07, at 43-45, 53-55.

To that end, Appellant contends that Ms. Carter’s statement was

inadmissible hearsay evidence. Appellant’s Brief at 23. Specifically, Appellant

claims that Ms. Carter lacked the personal knowledge as to whether Appellant

had actually killed someone two weeks prior to Ms. Carter’s June 12, 2003

accusation. Id. at 24. Appellant further argues that Ms. Carter’s statement

“is nothing more than a mere unsupported accusation, based neither on an

admission, nor on personal knowledge. Use of such an accusation, based

wholly on speculation and conjecture, denied [Appellant] a fundamentally fair

trial, violating due process guarantees.” Id. at 25-26 (citations omitted and

some formatting altered).

The Pennsylvania Rules of Evidence recognize that an opposing party’s

statement is an exception to the rule against hearsay. Pa.R.E. 803(25)(A).

Our Supreme Court has explained that this exception to the rule against

hearsay is well-settled:

[I]t is fair in an adversary system that a party’s prior statements

be used against him if they are inconsistent with his position at

trial. In addition, a party can hardly complain of his inability to

cross-examine himself. A party can put himself on the stand and

explain or contradict his former statements.

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Thus, in criminal cases, this Court has consistently held that a

defendant’s out-of-court statements are party admissions and are

exceptions to the hearsay rule.

Commonwealth v. Edwards, 903 A.2d 1139, 1157-58 (Pa. 2006) (citations

omitted and formatting altered).

In its Rule 1925(a) opinion prior to direct appeal,8 the trial court reached

the following conclusion:

No abuse of discretion occurred here because it was clear to [the

trial court] that Ms. Carter’s knowledge that [Appellant] had killed

someone emanated from [Appellant] and thus constituted an

admission. It is beyond cavil that admissions made by a criminal

defendant are admissible evidence. Commonwealth v.

Ferguson, 516 A.2d 1200 (Pa. Super. 1986); Commonwealth

v. Darden, 457 A.22d 549 (Pa. Super. 1983). Accordingly, this

claim should be rejected as meritless.

Trial Ct. Op., 3/4/08, at 13-14 (some formatting altered).

Based on our review of the record, we find that Appellant’s underlying

hearsay claims are without arguable merit. Therefore, Attorney Farrell was

not ineffective for failing to raise these claims on direct appeal. See Davis,

262 A.3d at 596.

____________________________________________

8 The record reflects that while this issue was preserved at trial and included

in Appellant’s Rule 1925(b) statement for his direct appeal, the issue was

ultimately neither briefed nor argued before this Court. See Appellant’s Rule

1925(b) Statement, 10/24/07, at 2; Alexander, 2551 EDA 2007.

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In addition to his hearsay argument, Appellant claims that he and Ms.

Carter had a common-law marriage9 and that the spousal privilege should

have precluded the admission of Ms. Carter’s testimony. Appellant’s Brief at

26. Therefore, Appellant contends that Attorney Farrell was ineffective

because he never objected to Ms. Carter’s testimony based on spousal

privilege. Id. at 27.

It is well-settled that in a criminal proceeding, a spouse shall not be

competent or permitted to testify against his or her spouse with regard to

confidential communications made to one by the other, unless this privilege is

waived at trial. 42 Pa.C.S. § 5914. Our Supreme Court has held that the

spousal privilege extends to common-law marriages. Commonwealth v.

Wilson, 672 A.2d 293, 301 (Pa. 1996). The Wilson Court further explained:

To create a common-law marriage, there must be an exchange of

words in the present tense spoken with the specific purpose that

the legal relationship of husband and wife be thereby created. In

the absence of formal words, a rebuttable presumption of

marriage may arise based upon certain circumstantial evidence,

i.e., constant cohabitation and broad and general reputation of

marriage. Cohabitation and reputation are merely circumstances

from which the existence of a contract of marriage can be inferred,

and not sufficient per se to prove a common-law marriage. If the

trial court finds a common-law marriage exists, confidential

communications between spouses are subject to the spousal

privilege.

* * *

____________________________________________

9 The General Assembly abolished common-law marriages in Pennsylvania

effective January 1, 2005. 23 Pa.C.S. § 1103. Any common-law marriages

that were “otherwise lawful and contracted on or before January 1, 2005,”

remained valid. Id.

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[T]he burden of proof rests on the party claiming the existence of

a common-law marriage.

Id. (citations omitted and some formatting altered).

Appellant claims that he and Ms. Carter “were common law spouses, as

evidenced by their lengthy, constant cohabitation, their community reputation

as a married couple, and their producing a child together.” Appellant’s Brief

at 26 (citing Wilson, 672 A.2d at 301). Appellant further states that he would

be able to meet his burden of establishing that a common-law marriage

existed between himself and Ms. Carter. Id., unnumbered footnote.

The record belies Appellant’s claim. Indeed, during Ms. Carter’s

testimony at trial, she testified that she was “staying back and forth” at “a

couple [of] houses.” N.T. Trial, 3/2/07, at 88. When she spoke to homicide

detectives on May 7, 2003, Ms. Carter stated that she was Appellant’s

girlfriend. Id. at 133. Further, at the time of trial, Ms. Carter testified that

she was no longer Appellant’s girlfriend and that she could not recall whether

she was living with Appellant on May 7, 2003. Id. at 133-34. At no point

during her trial testimony did Ms. Carter describe Appellant as her husband.

Based on our review of the record, we find that Appellant cannot

establish that he and Ms. Carter established a legal relationship as husband

and wife, nor can he establish circumstantial evidence of constant cohabitation

and a broad general reputation of marriage within the community. See

Wilson, 672 A.2d at 301. Accordingly, Appellant’s claims regarding Ms.

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Carter’s testimony are without arguable merit, and Appellant is not entitled to

relief. See Davis, 262 A.3d at 596; Sandusky, 203 A.3d at 1043-44.

Appellant’s Pre-Arrest Silence

In his second issue, Appellant argues that Attorney Farrell was

ineffective for failing to object to the Commonwealth’s references to

Appellant’s pre-arrest silence. Appellant’s Brief at 30. Specifically, Appellant

identifies five instances where he alleges that the Commonwealth improperly

referenced or elicited testimony referencing his pre-arrest silence: the

Commonwealth’s opening statement to the jury; testimony of Philadelphia

Police Officer Dayton Bennett, testimony of Detective Carl Watkins; testimony

of Denise Alexander; and the Commonwealth’s closing argument. Id. (citing

N.T. Trial, 3/2/07, at 56-57); id. at 31 (citing N.T. Trial, 3/5/07, at 41-42, 52-

53, 60-62; N.T. Trial, 3/7/07, at 126, 129-34).

The use of pre-arrest silence as substantive evidence of a criminal

defendant’s guilt is governed by our Supreme Court’s decision in

Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014) (plurality). The Molina

Court specifically held that the use of properly admitted evidence of a criminal

defendant’s pre-arrest silence to infer guilt violates Article I, Section 9 of the

Pennsylvania Constitution. Molina, 104 A.3d at 453. The same day that it

announced its decision in Molina, our Supreme Court also announced its

decision in Commonwealth v. Adams, 104 A.3d 511 (Pa. 2014) (plurality).

The Adams Court held as follows:

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[Our Supreme] Court has previously concluded that mere

reference to a defendant’s silence does not necessarily impinge

constitutional rights when guilt is not implied. While we have

interpreted the constitutional right against self-incrimination

generally to prohibit prosecutors from referencing a defendant’s

silence as substantive evidence of guilt, this Court has also

concluded that the right against self-incrimination is not burdened

when the reference to silence is circumspect and does not create

an inference of an admission of guilt. . . . Even an explicit

reference to silence is not reversible error where it occurs in a

context not likely to suggest to the jury that silence is the

equivalent of a tacit admission of guilt.

Adams, 104 A.3d at 517 (citation omitted and formatting altered).

Commonwealth’s Opening Statement

Appellant first alleges that the Commonwealth improperly alluded to his

pre-arrest silence. Appellant’s Brief at 30. In his brief, Appellant directs this

Court to pages 56-57 of the March 2, 2007 notes of testimony from the trial.

See id. At no point in the cited testimony is Appellant’s pre-arrest silence

referenced.

“It is an appellant’s duty to present arguments that are sufficiently

developed for our review. The brief must support the claims with pertinent

discussion, with references to the record and with citations to legal

authorities.” Commonwealth v. Westlake, 295 A.3d 1281, 1286 (Pa.

Super. 2023) (citations omitted, some formatting altered, and emphasis

added). “It is not this Court’s responsibility to comb through the record

seeking the factual underpinnings of an appellant’s claim. Further, this Court

will not become counsel for an appellant and develop arguments on an

appellant’s behalf.” Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa.

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Super. 2014) (citations omitted); see also Commonwealth v. Tchirkow,

160 A.3d 798, 804 (Pa. Super. 2017) (“Although this Court is willing to

construe liberally materials filed by a pro se litigant, a pro se appellant enjoys

no special benefit”). An appellant’s failure to adequately develop an argument

results in waiver of the claim. Commonwealth v. Romeo, 153 A.3d 1084,

1090 (Pa. Super. 2017); see also Pa.R.A.P. 2119(c). Accordingly, Appellant’s

claim with regard to any reference to his pre-arrest silence in the

Commonwealth’s opening statement to the jury is waived. See Romeo, 153

A.3d at 1090.

Officer Dayton Bennett’s Testimony

Appellant next contends that the Commonwealth improperly elicited

testimony regarding his pre-arrest silence from Philadelphia Police Officer

Dayton Bennett. Appellant’s Brief at 31. As part of his testimony, Officer

Bennett stated that, when he responded to a dispatch for a person screaming,

Ms. Carter told him that Appellant had killed someone a week or two ago. See

N.T. Trial, 3/5/07, at 39-41. Officer Bennett further testified that upon

hearing Ms. Carter say this, Appellant “retreated to the kitchen area and after

grabbing the baby out of her hand grabbed a kitchen knife, a large kitchen

knife, and held the baby in his left hand, the knife in his right hand[.]” Id. at

41-42. The remaining testimony cited by Appellant addresses how Appellant

was holding the knife in the kitchen, legal argument by Appellant’s counsel

with regard to the use of inconsistent statements, and Appellant’s actions after

Ms. Carter told the police that he had killed someone a week or two ago. Id.

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at 52-53, 60-62. At no point did the Commonwealth or Officer Bennett

reference Appellant’s pre-arrest silence for the purpose of drawing a negative

inference. Accordingly, Appellant’s claim is without arguable merit and no

relief is due. See Adams, 104 A.3d at 517; Sandusky, 203 A.3d at 1043.

Detective Carl Watkins’ Testimony

Next, Appellant alleges that the Commonwealth, through the testimony

of Detective Carl Watkins, improperly elicited testimony regarding Appellant’s

pre-arrest silence. Appellant’s Brief at 31. First, the record reflects that

Detective Watkins stated that the police had attempted to re-interview

Appellant with regard to the underlying homicide, and that no such re-

interview occurred. N.T. Trial, 3/7/07, at 126. In the remaining testimony

cited by Appellant, Detective Watkins described his unsuccessful efforts to

obtain an interview with Appellant. Id. at 129-34. Detective Watkins also

stated that because Appellant did not come in for another interview, Detective

Watkins ordered more of Appellant’s phone records. Id. at 133.

Based on our review of the record, there is no basis to conclude that

Detective Watkins testified about any sort of negative inference with regard

to Appellant’s pre-arrest silence. Accordingly, because Appellant has failed to

establish that his claim has arguable merit, he is not entitled to relief. See

Adams, 104 A.3d at 517; Sandusky, 203 A.3d at 1043.

Denise Alexander’s Testimony

Appellant alleges that during cross-examination of his mother, Denise

Alexander, the Commonwealth attempted to draw negative inferences about

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Appellant’s pre-arrest silence. Appellant’s Brief at 31. In the testimony cited

by Appellant, Ms. Alexander testified that homicide detectives told her that

they wished to interview Appellant, and Appellant did not tell her that he did

not want to go. See N.T. Trial, 3/8/07, at 145.

However, on this record, there is no basis to conclude that this testimony

represents an attempt by the Commonwealth to draw a negative inference

upon Appellant’s exercising of his pre-arrest right to remain silent.

Accordingly, Appellant is not entitled to relief, as this claim is of no arguable

merit. See Adams, 104 A.3d at 517; Sandusky, 203 A.3d at 1043.

Commonwealth’s Closing Argument

Finally, Appellant alleges that the Commonwealth drew a negative

inference to Appellant’s pre-arrest silence during its closing argument.

Appellant’s Brief at 31. Specifically, Appellant cites to the following excerpt

from the Commonwealth’s closing argument:

[Appellant] went through the most horrible experience of his life,

his friend died. He doesn’t want to go again. Come on. Doesn’t

want to come. Watkins, a liar? No. Mom said it, I told him to go.

He wouldn’t go. Wouldn’t tell me why.

They did talk about this fear. Fear of what? There is no evidence

of somebody threatening and say you better not go to the police.

No. [Detective] Rocks is looking for them. Mom admits they were

all over the house. They were looking and he was alive. I didn’t

know where he was. Counsel says, well, he was at Home Depot

because he was working. Everything I heard is he’s an electronics

dealer. I was waiting for a Best Buy I.D. car or Circuit City or

whatever because he does that. I heard nothing about

construction.

But he is at Home Depot. What does he do? Police are looking

for him. Mom verifies she knew. He knows, although she said I

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didn’t see him, but she’s a mom, that’s her baby. I don’t fault her

for that. But he knew, knew to the point when two cops are asking

you questions and checking your arm, he pulls off and runs. What

stops him? The Home Depot doors. Bang. Because he was

moving too fast, that thing, and there you go. What does he say?

You got me. You got me.

N.T. Trial, 3/9/07, at 111-12.

Based on our review of this record, there is no basis to conclude that

the Commonwealth made any negative inference to Appellant’s choosing to

exercise his right to remain silent pre-arrest. Accordingly, Appellant’s claim

has no arguable merit and he is not entitled to relief. See Adams, 104 A.3d

at 517; Sandusky, 203 A.3d at 1043.

Prior Bad Acts

In his next issue, Appellant alleges that Attorney Farrell was ineffective

for failing to object to evidence of Appellant’s prior bad acts. Appellant’s Brief

at 36. Specifically, Appellant contends that the Commonwealth “presented

extensive testimony establishing that [Appellant] engaged in unrelated

criminal acts, i.e., that [Appellant] ‘killed’ an unspecified ‘someone’ and

threatened police with a knife.” Id. Appellant further argues that Attorney

Farrell was ineffective for failing to request a jury instruction with regard to

the prior bad acts evidence. Id. at 38.

Pennsylvania Rule of Evidence 404(b) generally prohibits “[e]vidence of

a crime, wrong, or other act” when such evidence is offered to show “that on

a particular occasion the person acted in accordance with the character”

shown by that crime, wrong, or other act. Pa.R.E. 401(b)(1). There are,

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however, exceptions to this general rule and “[t]his evidence may be

admissible for another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Pa.R.E. 404(b)(2). Courts have also recognized another

exception—res gestae—to give essential background information to the crimes

on trial. See Commonwealth v. Reid, 99 A.3d 427, 451 (Pa. 2014).

However, even if evidence falls within one of the exceptions, the probative

value of the evidence must outweigh its potential for unfair prejudice. Pa.R.E.

404(b)(2). Unfair prejudice is defined as “a tendency to suggest decision on

an improper basis or to divert the jury’s attention away from its duty of

weighing the evidence impartially.” Pa.R.E. 403, cmt. When weighing

probative value and unfair prejudice, we “may consider whether and how

much such potential for unfair prejudice can be reduced by cautionary

instructions.” Pa.R.E. 404, cmt.

All evidence against a defendant in a criminal case will be prejudicial.

Commonwealth v. Peer, 684 A.2d 1077, 1083 (Pa. Super. 1996). Our

determination in this context, however, must be whether evidence is unfairly

prejudicial. Id.; see also Pa.R.E. 404(b)(2). While the trial court must

exclude relevant but unfairly prejudicial evidence, we are “not required to

sanitize the trial to eliminate all unpleasant facts from the jury’s consideration

where those facts form part of the history and natural development of the

events and offenses with which [a] defendant is charged.” Commonwealth

v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004) (quotation omitted). In

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order for it to be excluded, relevant evidence must be “so prejudicial that it

would inflame the jury to make a decision based upon something other than

the legal propositions relevant to the case.” Id. (quotation omitted).

Based on our review, we find that Appellant’s claim lacks arguable merit.

On this record, the testimony regarding Ms. Carter’s statements to the police

that Appellant had killed someone a week or two prior to the police responding

to Ms. Carter’s residence on June 12, 2003, is part of the history and natural

development of the events and offenses with which Appellant was charged in

the instant case. Broaster, 863 A.2d at 592. Likewise, Appellant’s response

to Ms. Carter’s allegations—pulling a knife and threatening police officers—

was likewise part of the history of the events and offenses with which

Appellant was charged. See id. Accordingly, we find that Appellant’s third

issue lacks arguable merit, and he is not entitled to relief. See Sandusky,

203 A.3d at 1043.

Failure to Object to Closing Jury Instruction

Appellant’s next two issues relate to Attorney Farrell’s failure to object

to the trial court’s jury instructions at the close of trial. First, Appellant

contends that Attorney Farrell was ineffective for failing to raise an objection

to the trial court’s instruction to the jury to “‘give weight’ to testimony about

previous statements made by witnesses.” Appellant’s Brief at 42 (citations

omitted). Appellant argues that this “instruction invaded the province of the

jury and relieved the prosecution of its burden of proof—although other

instructions also directed jury consideration of previous statements.” Id.

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When reviewing a trial court’s jury instructions, the following principles

govern:

[O]ur scope of review is to determine whether the trial court

committed a clear abuse of discretion or an error of law which

controlled the outcome of the case. A jury charge will be deemed

erroneous only if the charge as a whole is inadequate, not clear or

has a tendency to mislead or confuse, rather than clarify, a

material issue. A charge is considered adequate unless the jury

was palpably misled by what the trial judge said or there is an

omission which is tantamount to fundamental error.

Commonwealth v. Barker, 963 A.2d 495, 507 (Pa. Super. 2008) (citation

omitted).

Moreover,

we must review the jury charge as a whole to determine if it is fair

and complete. A trial court has wide discretion in phrasing its jury

instructions, and can choose its own words as long as the law is

clearly, adequately, and accurately presented to the jury for its

consideration. The trial court commits an abuse of discretion only

when there is an inaccurate statement of the law.

Id. (citation omitted).

Our Supreme Court has stated that “[t]he Suggested Standard Jury

Instructions themselves are not binding and do not alter the discretion

afforded trial judges in crafting jury instructions; rather, as their title

suggests, the instructions are guides only.” Commonwealth v. Simpson,

66 A.3d 253, 274 n.24 (Pa. 2013) (citation omitted and formatting altered).

During its charge, the trial court gave the following general jury

instruction regarding the use of prior statements:

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I will give you some factors that you should consider when judging

credibility and deciding whether or not you believe the testimony

presented by the witnesses here in court. Was the witness able

to see, hear or know about the things which he or she testified to?

Some witnesses testified to statements made and you must give

weight to that testimony of that witness. Did the witness see that

or did the witness hear that? How well could the witness

remember and describe the things about which he or she testified?

Was the ability of the witness to see, hear, know, remember or

describe those things affected by youth, old age or any physical,

mental or intellectual deficiency? Did the witness testify in a

convincing manner? How did the witness look while he or she was

testifying, act, speak, while he or she is testifying? Was the

witness’ testimony uncertain, confused, self-contradictory or

evasive? Did the witness have any interest in the outcome of the

case, bias, prejudice or other motive that might affect the witness’

testimony? How well does the testimony of the witness square

with the other evidence in the case including the testimony of

other witnesses? Was it contradicted or supported by the

testimony in evidence? Does the testimony make sense?

N.T. Trial, 3/9/07, at 129-30. The trial court further instructed the jury as

follows:

You have heard evidence that witnesses may have made

statements on an earlier occasion that may have been

inconsistent with his or her present testimony -- may have made

statements on an earlier occasion that may have been consistent

with his or her trial testimony or may have been testified on prior

occasions that may have been inconsistent with his or her present

testimony. Or may have testified on prior occasions that may be

consistent with his or her trial testimony. There are different rules

concerning how you’re to consider those prior inconsistent or

consistent statements.

First, to the extent that you find a witness’ trial testimony

inconsistent with an earlier part of the testimony at an earlier

proceeding or with a prior verbatim statement that was adopted

by the witness at the time he or she gave it, you may, if you

choose, regard this evidence as proof of the truth of anything that

the witness said in the earlier prior testimony or statement. You

may also consider this evidence to help you judge the credibility

of and weight of the testimony given by the witness at the trial.

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You may not regard evidence of an earlier inconsistent statement

that was not prior sworn testimony or prior verbatim statement

adopted by the witness at the time he or she gave it as proof of

the truth of anything said in that statement. You may consider

this evidence of a prior inconsistent statement for one purpose

only: To help you judge the credibility and weight of the testimony

given by the witness at this trial.

Next, to the extent that you find that the witness’ trial testimony

was consistent with prior sworn testimony at a prior proceeding

with a prior verbatim statement, you may only consider this for

one purpose only; that is, to help you judge the credibility and

weight of the testimony given by the witness in this trial.

Id. at 133-135; cf. Pa. SSJI (Crim) 4.08A(2) (“You may consider this evidence

for one purpose only, to help you judge the credibility and weight of the

testimony given by the witness at this trial. You may not regard evidence of

an earlier inconsistent statement as proof of the truth of anything said in that

statement”).

Following our review, we find that the trial court’s jury instructions

clearly, adequately, and accurately presented the pertinent points of law for

the jury’s consideration. See Barker, 963 A.2d at 507. Under these

circumstances, we conclude that Appellant failed to establish any arguable

merit to his claim that Attorney Farrell should have raised this issue on direct

appeal. See Sandusky, 203 A.3d at 1043. Accordingly, Appellant is not

entitled to relief.

Failure to Object to Omitted Instructions

In his next issue, Appellant contends that Attorney Farrell was

ineffective for failing to object to the trial court’s jury instructions because the

trial court “omitted pertinent instructions.” Appellant’s Brief at 47.

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Specifically, Appellant argues that the trial court failed to give instructions

regarding the Commonwealth’s grant of immunity to Maurice Carter, the

testimony of Michelle Carter as an accomplice, a guilt by association

instruction relating to Ms. Carter’s convictions for perjury, Appellant’s right to

remain silent, and a limiting instruction regarding evidence of Appellant’s prior

bad acts. Id. at 49-52. We will address each claim separately.

Immunity Instruction

Appellant also argues that although the trial court granted defense

counsel’s request to instruct the jury about the Commonwealth’s grant of

immunity to Maurice Carter, the trial court did not provide that jury

instruction, and Attorney Farrell failed to object to its omission. Id. at 48-49

(citing N.T. Trial, 3/6/07, at 84-85).

While the trial court did not specifically address Mr. Carter’s immunity

in its closing instructions to the jury, the record reflects that the jury was

aware of the circumstances surrounding Mr. Carter’s testimony. Indeed, in

the presence of the jury, Mr. Carter admitted that he was testifying at trial

because the Commonwealth granted him immunity. 10 As stated above, the

trial court provided the jury with general instructions as to the factors it should

consider when determining whether the witnesses were credible. See N.T.

Trial, 3/9/07, at 129-30.

____________________________________________

10 In the context of direct examination, the Commonwealth described

immunity to Mr. Carter as that he “cannot be charged with any crime that [he]

may say [he] did or didn’t do. The only thing [he] can’t be precluded from is

if [he] commit[s] perjury.” N.T. Trial, 3/6/07, at 9.

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Based upon our review of the record, we find that the trial court did not

abuse its discretion when it did not provide an immunity instruction to the jury

during its closing instructions. See Barker, 963 A.2d at 507. Accordingly,

Appellant has not established that his claim of ineffective assistance of counsel

has arguable merit, and he is not entitled to relief. See Sandusky, 203 A.3d

at 1043.

Accomplice Testimony Instruction

Appellant next contends that Attorney Farrell was ineffective for failing

to request an accomplice testimony instruction with regard to Michelle Carter’s

testimony. Appellant’s Brief at 50. Appellant argues that the Commonwealth

“characterized Michelle Carter as an accomplice, and charged her as

[Appellant’s] co-defendant.” Id. In support of this claim, Appellant cites the

Commonwealth’s remark during trial that Ms. Carter knew the underlying

crime was happening as it was happening. Id. (citing N.T. Trial, 3/9/07, at 3,

94-97).

The Commonwealth responded by arguing that Ms. Carter was not

charged as a co-defendant in this case. Commonwealth’s Brief at 25.

Appellant has not cited to any evidence of record establishing that Ms.

Carter was charged as a co-defendant in this case. Moreover, our review of

the Commonwealth’s closing argument to the jury does not reveal that Ms.

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Carter was charged as an accomplice in this case. 11 Accordingly, Appellant

was not entitled to an instruction about an accomplice’s testimony; therefore,

his claim is without arguable merit. See Sandusky, 203 A.3d at 1043.

Guilt by Association Instruction

Next, Appellant argues that he was entitled to a guilt by association jury

instruction, stating that the Commonwealth “relied on [Ms. Carter’s guilty

pleas for three counts of perjury] in arguing for guilty verdicts.” Appellant’s

Brief at 51 (citation omitted).

It is well-settled that in cases in which a co-defendant has entered a

guilty plea, and evidence of that guilty plea is introduced at the trial of the

remaining co-defendant(s), the remaining co-defendant(s) are entitled to a

cautionary jury instruction. Commonwealth v. Geho, 302 A.2d 463, 465-

66 (Pa. Super. 1973) (en banc). “It is incumbent, therefore, upon the trial

judge to give adequate and clear cautionary instructions to the jury to avoid

‘guilt by association’ as to the defendant being tried.” Id. at 466 (citation

omitted).

As discussed above, Ms. Carter was not a co-defendant in the instant

case. Accordingly, Appellant was not entitled to a guilt by association jury

instruction, and his claim lacks arguable merit. See id. at 465-66; Sandusky,

203 A.3d at 1043.

____________________________________________

11 During trial, Ms. Carter stated that she had entered guilty pleas for three

counts of perjury. N.T. Trial, 3/2/07, at 85. Ms. Carter’s perjury charges

arose from her grand jury testimony in the instant case. Id. at 145-46; 208-

10; see also Commonwealth v. Carter, CP-51-CR-1205401-2005.

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Right to Remain Silent Instruction

Appellant next contends that he was entitled to a no-adverse inference

instruction regarding his pre-arrest silence. Appellant’s Brief at 52. While he

concedes that the trial court provided a no-adverse influence instruction with

regard to his decision to not testify at trial, Appellant argues that because the

Commonwealth “presented extensive testimonial evidence at [Appellant’s]

silence and cessation of communications with police, and about [Appellant’s]

silence when Michelle Carter stated to arresting officers that he killed someone

two weeks before,” he was entitled to an instruction on a defendant’s right to

remain silent generally. Id.

As we have stated above, the mere reference to the fact that a

defendant has chosen to remain silent does not infringe upon his constitutional

rights to do so. See Adams, 104 A.3d at 517. For the reasons that we

discuss above, Appellant was not entitled to a jury instruction regarding his

right to remain silent; therefore, his claim lacks arguable merit. See

Sandusky, 103 A.3d at 1043.

Prior Bad Acts Instruction

Finally, Appellant argues that the Commonwealth “presented extensive

testimonial evidence about other crimes attributed to [Appellant].” The trial

court jury charge had no instruction whatsoever to caution the jury in its

consideration of this kind of evidence.” Appellant’s Brief at 53. Appellant

contends that he was prejudiced because had Attorney Farrell requested a

jury instruction on the prior bad acts evidence, “the jury would have

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attempted to follow such instructions in their deliberations. Conversely, the

uninstructed jury was far more likely to undertake improper consideration of

the evidence[.]” Id. at 54.

“[W]hen evidence of a defendant’s prior conduct or bad acts is admitted,

the defendant is entitled upon request to a jury instruction explaining the

limited purpose of such evidence.” Commonwealth v. Hutchinson, 25 A.3d

277, 305 (Pa. 2011) (citation omitted). This Court has explained that

“counsel’s failure to request a cautionary instruction regarding evidence of

other crimes or prior bad acts does not constitute per se ineffectiveness;

rather, in order to obtain relief under such a claim, a defendant must still

satisfy each of the prongs of the test for ineffective assistance of counsel.”

Commonwealth v. Johnson, 179 A.3d 1105, 1119 (Pa. Super. 2018)

(citation omitted and formatting altered).

As we stated above, the evidence at issue addresses the natural history

and development of the case and the charges against Appellant. See

Broaster, 863 A.2d at 592. In the context of an ineffective assistance of

counsel proceeding, prejudice is defined as but for counsel’s failure to request

a jury instruction regarding evidence of Appellant’s prior bad acts, “there is a

reasonable probability that the outcome of the proceedings would have been

different.” Sandusky, 203 A.3d at 1044. Appellant does not allege that the

outcome of his trial would have been different but for Attorney Farrell’s failure

to request a jury instruction regarding prior bad acts evidence; accordingly,

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Appellant has not established the prejudice prong of ineffective assistance of

counsel, and he is not entitled to relief. See id.

Failure to Call a Witness

Appellant next alleges that Attorney Farrell was ineffective for failing to

call Philadelphia Police Officer Craig Van Sciver as a defense witness.

Appellant’s Brief at 55. Appellant argues that Officer Van Sciver would have

been able to “rebut prosecution evidence [and] otherwise corroborate or

confirm the presence of visible injuries and burn marks on [Appellant’s] arm

on May 6, 2003, when police first encountered him.” Id.

In response, the Commonwealth argues that Attorney Farrell referenced

Officer Van Sciver’s observations during his cross-examination of Officer Van

Sciver’s partner, Officer Steven Johnson. Commonwealth’s Brief at 27.

Therefore, the Commonwealth concludes that “because any potentially helpful

information was elicited on cross-examination, [Appellant] cannot prove that

he was prejudiced by the absence of Officer Van Sciver.” Id.

This Court has explained:

To prove arguable merit based on trial counsel’s failure to call a

witness, a PCRA petitioner must 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.

Commonwealth v. Robinson, 278 A.3d 336, 343 (Pa. Super. 2022) (citation

and internal quotation marks omitted). “In this context, prejudice means that

the uncalled witnesses’ testimony would have been beneficial under the

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circumstances of the case.” Id. (citation and internal quotation marks

omitted).

Additionally, a PCRA petitioner must demonstrate that “trial counsel had

no reasonable basis for his or her chosen trial strategy” as the “alternative

strategy offered a potential for success substantially greater than the course

actually pursued.” Id. at 345. Finally, with respect to prejudice, the petitioner

must establish “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id.

In the instant case, the record reflects that Officer Johnson testified that

Appellant alleged that he had been duct-taped and burned with cigarettes.

See N.T., 3/6/07, at 112. Officer Johnson stated that he did not see any

marks, bruises, or burns on his skin. Id.; see also id. at 116-18. On cross-

examination, Officer Johnson stated that the police report indicated that

Officer Van Sciver noted the presence of “visible marks.” Id. at 121.

As summarized by a previous panel of this Court, Appellant initially told

the police that he had been kidnapped and robbed and was only released when

Ms. Carter paid a ransom. See Alexander, 2551 EDA 2007 at *2. This Court

also noted that Appellant “gave the police inconsistent stories about where he

had been picked up.” Id. This Court summarized Appellant’s inconsistent

accounts to the police as follows:

[Appellant] claimed he had passed out from a beating and when

he regained consciousness in the vicinity of 22 nd Street and Lehigh

Avenue, the kidnappers were gone. He also said he was released

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by the kidnappers at a railroad track near 22 nd and Sedgley

Streets and wandered around several blocks until he found a

working pay phone. He called home and was picked up by his

girlfriend and her brother, Maurice Carter, at Broad Street and

Lehigh Avenue. Then he went home to sleep before reporting the

incident. Finally, he told the police that he had been released at

gunpoint in an alley and walked to his aunt’s house in the 3500

block of Old York Road.

Id. at *2 n.2.

Moreover, as noted above, the Commonwealth presented evidence at

trial that Ms. Carter indicated to the police that Appellant had killed someone

two weeks prior. See N.T. Trial, 3/5/07, at 39-41. Further, the

Commonwealth presented evidence that Appellant told Mr. Carter that he “set

up the guy who got killed. [Appellant] had some guys run up on him and

[Appellant] was going on with the ride like [Appellant] was getting robbed,

too. [Appellant] said, We didn’t get no money out of it.” N.T. Trial, 3/6/07,

at 36. Appellant further told Mr. Carter that if the police were to find out,

Appellant would “take the rap.” Id. at 36-37.12

Based on our review of the record, we find that Appellant was not

prejudiced by Attorney Farrell’s failure to call Officer Van Sciver as a witness.

Therefore, no relief is due. See Robinson, 278 A.3d at 343.

Failure to Raise Confrontation Clause Objection

In his seventh issue, Appellant contends that Attorney Farrell was

ineffective for failing to object to testimony from Dr. Edwin Lieberman on

____________________________________________

12Mr. Carter recanted his statements to the police during trial. N.T. Trial,

3/6/07, at 46-47.

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Confrontation Clause grounds. Appellant’s Brief at 59. Specifically, Appellant

argues that Dr. Lieberman testified about the contents of an autopsy report

authored by Dr. Ian Hood and hospital records prepared by Dr. Jeffrey Geller.

Id. Further, Appellant states that the evolution of Confrontation Clause

jurisprudence from both the Supreme Court of the United States and the

courts of this Commonwealth “was sufficiently developed to support an

objection to exclude Dr. Lieberman’s hearsay testimony.” Id. at 60-61.

It is well settled that “counsel cannot be deemed ineffective for failing

to anticipate a change in the law.” Commonwealth v. Parker, 249 A.3d

590, 596 (Pa. Super. 2021) (quoting Commonwealth v. Hughes, 865 A.2d

761, 810 (Pa. 2004)). “We have held repeatedly that counsel’s stewardship

must be judged in light of the available alternatives and that he cannot be

expected to raise motions unsupported by existing law.” Id. (quoting

Commonwealth v. Miller, 431 A.2d 233, 235 (Pa. 1981)).

“Under the Confrontation Clause of the Sixth Amendment, a criminal

defendant has a right to confront witnesses against him.” Commonwealth

v. Rivera, 773 A.2d 131, 137 (Pa. 2001) (citation omitted). “We have held

that the Confrontation Clause of the Pennsylvania Constitution affords

defendants the same rights as the Sixth Amendment of the United States

Constitution.” Commonwealth v. Yohe, 39 A.3d 381, 384 n.4 (Pa. Super.

2012) (citation omitted). A previous panel of this Court described our

jurisprudence in Confrontation Clause cases, starting with the Supreme Court

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of the United States’ decision in Crawford v. Washington, 541 U.S. 36

(2004):

The Crawford Court defined the statements covered by the

Confrontation Clause as follows:

Various formulations of this core class of testimonial

statements exist: ex parte in-court testimony or its

functional equivalent—that is, material such as affidavits,

custodial examinations, prior testimony that the defendant

was unable to cross-examine, or similar pretrial statements

that declarants would reasonably expect to used

prosecutorially, extrajudicial statements . . . contained in

formalized testimonial materials, such as affidavits,

depositions, prior testimony, or confessions; statements

that were made under circumstances which would lead an

objective witness reasonably to believe that the statement

would be available for use at a later trial[.]

Crawford, 541 U.S. at 51-52 (internal citations and quotation

marks omitted).

In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310

(2009), the Supreme Court determined that certificates of forensic

analysis are within the “core class of testimonial statements”

described by the Crawford Court. The Court ultimately held that

the individuals who performed the forensic analyses were

witnesses for the purposes of the Sixth Amendment, and thus the

defendant “was entitled ‘to be confronted with’ [them] at trial.”

Id. at 311, citing Crawford, 541 U.S. at 54 (internal quotation

marks omitted).

Following the High Court’s announcement of Melendez-Diaz, this

court considered Commonwealth v. Barton-Martin, 5 A.3d 363

(Pa. Super. 2010). In Barton-Martin, the defendant was

convicted of DUI-highest rate, which is a conviction that requires

the admission of BAC into evidence. Id. at 366, 370. In an effort

to meet that evidentiary requirement, the Commonwealth called

the custodian of records from Hanover Hospital and introduced the

defendant’s BAC report as a business record. Id. at 368. The

Commonwealth did not call the laboratory technician who

performed the test on the defendant’s blood sample to testify. Id.

This court held that the admission of [the defendant’s] BAC report

through the custodian of records’ testimony violated the

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defendant’s right to confrontation, absent any evidence that the

laboratory technician was unavailable for trial and the defendant

had a prior opportunity to conduct cross-examination. Id. at 369.

Shortly after Barton-Martin was decided, the Supreme Court of

the United States announced its decision in Bullcoming v. New

Mexico, 564 U.S. 647 (2011). In Bullcoming, the defendant

was charged with driving while intoxicated and stood trial. Id. at

651. At trial, the prosecution sought to introduce a BAC report

reflecting that the defendant’s BAC was above the legal limit. Id.

Instead of calling the analyst who signed the certification of the

BAC report to testify at trial, the prosecution called another

analyst from the same laboratory who was familiar with laboratory

procedures. Id.

The High Court granted certiorari to determine whether the

Confrontation Clause:

permit[s] the prosecution to introduce a forensic laboratory

report containing a testimonial certification, made in order

to prove a fact at a criminal trial, through the in-court

testimony of an analyst who did not sign the certification or

personally perform or observe the performance of the test

reported in the certification.

Id. at 657 (citation omitted). Ultimately, the Court disapproved

of the type of “surrogate testimony” permitted by the trial court

in Bullcoming because the surrogate witness could not “convey

what the [analyst] performing the test knew or observed about

the events [her] certification concerned, i.e., the particular test

and testing process [she] employed.” Id. at 661 (footnote

omitted).

Commonwealth v. Hajdarevic, 236 A.3d 87, 90-91 (Pa. Super. 2020).

In Commonwealth v. Brown, 139 A.3d 208 (Pa. Super. 2016), this

Court held that autopsy reports are testimonial in nature, thereby invoking

the Confrontation Clause. Brown, 139 A.3d at 216. Accordingly, testimony

from the author of the report is required to satisfy the Confrontation Clause.

Id.

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Appellant’s trial occurred nine years before this Court announced its

decision in Brown. Because counsel cannot be deemed ineffective for failing

to anticipate subsequent changes in the law, we discern no error by the PCRA

court in rejecting Appellant’s claim that trial counsel should have objected to

Dr. Lieberman’s testimony on Confrontation Clause grounds. Therefore,

because Appellant’s claim has no arguable merit, he is not entitled to relief.

See Parker, 249 A.3d at 596; Sandusky, 203 A.3d at 1043.

Use of Prior Statements During Trial

Appellant next contends that Attorney Farrell rendered ineffective

assistance for failing to object “to the presentation, of substantive evidence,

of witnesses’ previous out-of-court statements.” Appellant’s Brief at 67.

Specifically, Appellant alleges that the Commonwealth “presented four lay

witnesses and eight police witnesses to testify about witnesses’ prior

statements, with the police testimony frequently consisting of the witness

simply reciting, or reading, the previous statement into the record.” Id. at

67-68 (some formatting altered; footnote omitted). Appellant also claims that

Attorney Farrell was ineffective for failing to object to the trial court’s jury

instruction with regard to the use of previous statements. Id. at 68-69.

In his brief, Appellant concedes that counsel raised numerous objections

to the use of prior statements throughout trial, as well as to the trial court’s

jury instructions. See id. at 68 (citing N.T. Trial, 2/23/07, at 17-23; N.T.

Trial, 3/5/07, at 43-35, 53-54; N.T. Trial, 3/7/07, at 140; N.T. Trial, 3/8/07,

at 19-23; N.T. Trial, 3/9/07, at 2-5); id. at 69 (citing N.T. Trial, 3/9/07, at

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164). Because the record belies Appellant’s claims that Attorney Farrell failed

to object to the use of prior statements throughout trial, our analysis will be

limited to the failure to raise this issue on direct appeal.

In the context of alleging ineffective assistance of Attorney Farrell for

failing to raise this issue on direct appeal, Appellant’s argument as to the

prejudice prong of ineffective assistance of counsel is limited to: “[t]he

appellate court probably would have granted relief had counsel raised this

claim, thus counsel’s failure also prejudiced [Appellant] on appeal.”

Appellant’s Brief at 73.

Here, Appellant raises a boilerplate claim of prejudice resulting from

Attorney Farrell’s purported failure to raise this issue on direct appeal. As this

Court has stated previously, a boilerplate allegation and bald assertion of

prejudice “cannot satisfy a petitioner’s burden to prove that counsel was

ineffective.” Sandusky, 203 A.3d at 1044 (citing Commonwealth v. Paddy,

15 A.3d 431, 443 (Pa. 2011)). “A failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.” Id.

(citing Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation

omitted)). Accordingly, his claim of ineffective assistance of counsel must fail.

Id.

Appellant’s Waiver of his Right to Testify at Trial

Appellant next contends that Attorney Farrell was ineffective in advising

Appellant to waive his right to testify in his own defense at trial. Appellant’s

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Brief at 74. Specifically, Appellant argues that his decision not to testify was

based solely on the advice of trial counsel. Id. at 78.

“The decision of whether or not to testify on one’s own behalf is

ultimately to be made by the defendant after full consultation with counsel.”

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (citation

omitted).

In order to sustain a claim that counsel was ineffective for failing

to advise the appellant of his rights in this regard, the appellant

must demonstrate either that counsel interfered with his right to

testify, or that counsel gave specific advice so unreasonable as to

vitiate a knowing and intelligent decision to testify on his own

behalf.

Id. (citation omitted). “Additionally, where a defendant voluntarily waives his

right to testify after a colloquy, he generally cannot argue that trial counsel

was ineffective in failing to call him to the stand.” Sandusky, 203 A.3d at

1075 (quoting Commonwealth v. Rigg, 84 A.3d 1080, 1086 (Pa. Super.

2014)) (some formatting altered).

Instantly, the PCRA court reached the following conclusion:

The record reflects that Appellant made his own informed decision,

after consultation with counsel, not to testify at the guilt phase of

his trial. The advice he received was not inaccurate or

unreasonable, and it did not vitiate his ability to make his own

knowing and intelligent choice.

* * *

Here, counsel stated on the record that he had specifically advised

Appellant not to testify at the guilt phase because Appellant was

charged with capital murder and there was a chance that, if

Appellant testified and the jury disbelieved him, it could have a

detrimental impact on Appellant’s ability to testify at the penalty

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phase. This was not unreasonable advice. Appellant was, indeed,

potentially facing the death penalty at that juncture, and counsel’s

apprehensions of the possible risks at the guilt phase were not

unfounded.

PCRA Ct. Op. at 7-8.

The record reflects that Appellant knowingly, intelligently, and

voluntarily waived his right to testify in his own defense. See N.T. Trial,

3/8/07, at 155-59. Appellant specifically stated that at no point during the

course of trial had counsel not done anything requested by Appellant. Id. at

157-58. Appellant affirmatively stated that he was satisfied with his counsel.

Id. at 158. Appellant re-affirmed his decision not to testify on his own behalf

on the final day of trial, stating that he was not testifying due to the threat of

the death penalty. N.T. Trial, 3/9/07, at 10.

As stated above, a defendant cannot subsequently claim ineffective

assistance of counsel after having affirmatively waived his right to testify after

an on-the-record colloquy. See Sandusky, 203 A.3d at 1075. Accordingly,

we find no error on the part of the PCRA court in denying Appellant’s PCRA

petition on this issue and no relief is due. See id. at 1043.

Ineffective Assistance of PCRA Counsel

In his final issue, Appellant raises a challenge to all previous PCRA

counsel for “failing to raise meritorious claims completely, or in failing to fully,

properly develop the claims that were raised, in the many petitions and

arguments presented to the PCRA court.” Appellant’s Brief at 85. Appellant

further states that he “was represented by six (6) different attorneys over the

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twelve-year span while his PCRA petition was pending, some of whom took no

action at all, while some filed amended or supplemental petitions.” Id.13 In

his brief, Appellant raises a layered claim of ineffective assistance of counsel.

Id. at 88.

It is axiomatic that if a petitioner cannot prove the underlying claims of

ineffective assistance of counsel, then his derivative claims of PCRA counsel

ineffectiveness must fail. Chmiel, 30 A.3d at 1128.

Here, as noted previously, Appellant has failed to establish his that his

underlying claims had merit. Accordingly, he is not entitled to relief on his

derivative claims concerning PCRA counsel’s ineffectiveness. For these

reasons, we affirm.

Order affirmed. Jurisdiction relinquished.

____________________________________________

13 As noted by the Commonwealth, Appellant’s most recent amended PCRA

petition supersedes any previously filed PCRA petitions. The record reflects

that Attorney Himebaugh filed the most recent amended PCRA petition on

Appellant’s behalf on September 28, 2021. See Commonwealth’s Brief at 16

n.3; see also, e.g., Commonwealth v. Renchenski, 52 A.3d 251, 259 (Pa.

2012). Accordingly, only Attorney Himebaugh’s performance will be

considered in determining whether Appellant has sufficiently pled and proven

the three elements of ineffective assistance of counsel. See Parrish, 273

A.3d at 1004 n.11; Sandusky, 203 A.3d at 1043-44.

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Date: 11/5/2024

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