Com. v. Nealy, D.

J-S01029-25 2025 PA Super 55

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DAVID ANDREW NEALY :

:

Appellant : No. 303 MDA 2024

Appeal from the PCRA Order Entered February 23, 2024

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

No(s): CP-40-CR-0004591-2017

BEFORE: NICHOLS, J., KING, J., and STEVENS, P.J.E.*

OPINION BY KING, J.: FILED: MARCH 10, 2025

Appellant, David Andrew Nealy, appeals from the order entered in the

Luzerne County Court of Common Pleas, which denied his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

This Court has previously set forth the relevant facts of this case as

follows:

On the night of October 12, 2013, [Appellant] and Roberto

Battle drove together to Outsiders bar in Wilkes-Barre,

Pennsylvania, in a silver 2005 Mercedes C230 sedan that

[Appellant] had borrowed from Michael Goodrich. As the

two men entered the bar, security overheard [Appellant]

introduce Battle as his “shooter.” Multiple staff and patrons

of the bar observed [Appellant] and Battle in the bar. As

the evening progressed, Battle fought with another patron

of the bar, and was evicted by security. [Appellant] left the

bar shortly thereafter, the two men departed together in the

silver Mercedes, and proceeded to the residence of Shakim

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.

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Varick and Jessica Fox. Varick grew up with [Appellant] and

Battle, and Battle occasionally stayed at Varick’s residence.

Battle knew where Varick stored a Keltec handgun in his

home. Battle entered the residence and removed Varick’s

Keltec handgun, loaded with Hornady Zombie 9mm

ammunition, then returned to [Appellant] in the waiting

Mercedes. Shortly after 2:00 a.m., [Appellant] and Battle

drove back to Outsiders.

The victim, Michael Onley, was in Outsiders on the evening

of October 12, 2013, taking promotional photographs for the

bar. Onley had several friends on the Outsiders security

staff, and was known to them and other patrons for his work

as a local DJ. When the bar closed, Onley exited the building

with patrons and staff, but lingered at the door where

security typically congregated after they made a final patrol

of the parking lot. As security was returning to the bar,

[Appellant] and Battle drove past on Pennsylvania Avenue,

and Battle fired multiple shots out of the passenger side

window of the Mercedes into the parking lot and building.

Dalair Edwards and Prince Rodriguez, bar security, heard

gunshots and saw muzzle flashes coming from the passing

silver sedan. Rodriguez, who testified that he could see the

car clearly, identified it as the one in which [Appellant] and

Battle left the club earlier. Security footage shows a passing

car with muzzle flashes coming from the passenger window.

When Edwards and Rodriguez returned to the bar entrance,

they saw the victim lying on the ground with a gunshot

wound to his head. Damien Pitters, a club patron in the

parking lot when the shots were fired, saw the victim fall

from a chair by the bar’s door. Pitters, an army combat

medic, moved to help, but despite efforts to revive the

victim, he died of the gunshot wound.

Following the shooting, [Appellant] and Battle drove

together to the home of Jamie Compton, where several

people were gathered. While there, the group learned that

the victim had been shot. In response to this news, Battle

laughed and said that he had “shot the place up.” After

leaving Compton’s residence, [Appellant] and Battle

returned together to Shakim Varick’s residence sometime

between 3:00 a.m. and 3:30 a.m., where they encountered

Varick and Jessica Fox. …Battle told Varick that [they] “did

a drive-by” on Pennsylvania Avenue, and admitted that he

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had used Varick’s gun. Upon learning this, Varick checked

and saw that the gun was no longer in the nightstand. Two

days later, Battle returned the gun to Varick, empty of

bullets. [Appellant] did not deny Battle’s statement.

[Appellant], when testifying on his own behalf, denied

knowing that Battle had a gun and intended to fire shots

into Outsider’s parking lot as staff and patrons exited the

bar, but [Appellant] admitted to hearing those shots being

fired and to abandoning the borrowed silver Mercedes after

learning that the victim had been killed. Additionally,

although [Appellant] expressed his remorse for the victim’s

death by the time the jury trial occurred, [Appellant] had

not aided in the investigation of the crime by divulging to

the police his knowledge of the night’s events, or Battle’s

identity as the shooter.

Commonwealth v. Nealy, No. 1021 MDA 2019, unpublished memorandum

at 1-3 (Pa.Super. filed Nov. 17, 2020), appeal denied, 666 Pa. 284, 252 A.3d

592 (2021) (quoting Trial Court Opinion, 12/10/19, at 6-8).

Procedurally:

A joint jury trial commenced on December 11, 2018, and,

on December 17, 2018, the jury found both [Appellant] and

Battle guilty of first-degree murder and criminal conspiracy.

On January 31, 2019, the trial court sentenced [Appellant]

to a mandatory life sentence on the first-degree murder

conviction, and a consecutive seventeen to forty-year term

of imprisonment on the conspiracy conviction. [Appellant]

filed a timely post-sentence motion in which he challenged

the sufficiency and the weight of the evidence supporting

his convictions. The trial court denied [Appellant’s] post-

sentence motion on June 4, 2019. …

Id. at 3. This Court affirmed Appellant’s judgment of sentence on November

17, 2020, and our Supreme Court denied allowance of appeal on April 13,

2021. See id.

On May 27, 2022, Appellant timely filed a pro se PCRA petition. The

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court appointed counsel, who filed a supplemental PCRA petition on May 9,

2023. The court held a PCRA hearing on November 30, 2023, after which the

court took the matter under advisement. On February 23, 2024, the court

denied PCRA relief. Appellant timely filed a notice of appeal on February 29,

2024. On March 1, 2024, the court ordered Appellant to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and

Appellant timely complied on March 8, 2024.

Appellant raises one issue for our review:

Whether the PCRA Court erred by holding Trial Counsel was

not ineffective for failing to object to or file motions in limine

to prevent the admission of out of court statements from a

non-testifying codefendant during trial that violated

[Appellant’s] rights to Confrontation under the Pennsylvania

and Federal constitutions?

(Appellant’s Brief at 4).

“Our standard of review of [an] order granting or denying relief under

the PCRA calls upon us to determine whether the determination of the PCRA

court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The

PCRA court’s factual findings are binding if the record supports them, and we

review the court’s legal conclusions de novo.” Commonwealth v. Prater,

256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d

386 (2021). Further, where the PCRA court makes credibility determinations,

we are bound by them if they are supported by the record. Commonwealth

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v. Mojica, 242 A.3d 949 (Pa.Super. 2020), appeal denied, 666 Pa. 290, 252

A.3d 595 (2021).

“Counsel is presumed to have rendered effective assistance.”

Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal

denied, 663 Pa. 418, 242 A.3d 908 (2020).

[T]o establish a claim of ineffective assistance of counsel, a

defendant must show, by a preponderance of the 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.

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

appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and

quotation marks omitted).

Appellant argues that the admission of Battle’s out-of-court statements

at trial violated Appellant’s rights to Confrontation under both the

Pennsylvania and federal Constitutions. Appellant claims that Battle’s

statements, admitted at trial through the testimony of Varick,2 were direct

evidence that Appellant was an active participant in the victim’s murder.

Appellant highlights Varick’s testimony which stated that Battle had said

____________________________________________

2 Battle did not testify at trial.

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“they” did a drive-by shooting. Appellant insists that “they” could only have

meant Battle and Appellant. Appellant emphasizes that the Commonwealth

argued during closing arguments that “they” referred to Appellant and Battle.

Appellant also claims that another witness, Stephanie McGraw, also testified

that Battle said he did a drive-by shooting. When considering McGraw’s

statement in the context of other testimony that Appellant and Battle were

together the entire night the victim was murdered, Appellant submits this

testimony also implicated Appellant.

Appellant maintains that trial counsel should have filed motions in limine

to prevent admission of these statements at trial. Alternatively, Appellant

contends that trial counsel should have objected to Battle’s statements (by

way of Varick and McGraw’s testimony) at trial. Appellant insists this claim

has arguable merit because admission of Battle’s out-of-court statements

violated Appellant’s Confrontation Clause rights, and counsel had no

reasonable basis for failing to seek exclusion of this evidence. Appellant

further submits that he suffered prejudice where the court did not issue

cautionary instructions immediately after Battle’s statements were introduced

into evidence, Battle’s statements by way of Varick constituted direct evidence

that Appellant participated in the murder, and Battle’s statements by way of

McGraw constituted circumstantial evidence of Appellant’s participation in the

murder. Appellant emphasizes that no other direct evidence established that

Appellant was an active participant in the murder. Appellant also highlights

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that the Commonwealth reinforced Battle’s statements to the jury in closing

arguments. Appellant concludes trial counsel was ineffective on these

grounds, and this Court must vacate and remand for a new trial. We disagree.

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

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

v. Rivera, 565 Pa. 289, 299, 773 A.2d 131, 137 (2001), cert. denied, 535

U.S. 955, 122 S.Ct. 1360, 152 L.Ed.2d 355 (2002). A defendant is deprived

of his Sixth Amendment rights when his non-testifying co-defendant’s facially

incriminating confession is introduced at their joint trial, even if the jury is

instructed that the confession can be considered only against the confessing

co-defendant. Id. Nevertheless, “[i]f a confession can be edited so that it

retains its narrative integrity and yet in no way refers to [the non-confessing]

defendant, then use of it does not violate the principles of Bruton[ v. U.S.,

391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)].” 3 Commonwealth v.

Travers, 564 Pa. 362, 368, 768 A.2d 845, 848 (2001).

In Travers, our Supreme Court held that the redaction of a non-

testifying co-defendant’s confession in a joint trial, which replaced any direct

reference to the non-confessing co-defendant with a neutral pronoun, when

____________________________________________

3 In Bruton, the United States Supreme Court held that admission of a facially

incriminating confession by a non-testifying co-defendant introduced at the

defendant and co-defendant’s joint trial, deprives a defendant of his Sixth

Amendment right to confrontation, even where the court instructs the jury to

consider the confession only against the co-defendant. Id. at 135-37; 88

S.Ct. at 1627-28; 20 L.Ed.2d at ____.

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accompanied by an appropriate cautionary charge, sufficiently protected the

non-confessing defendant’s Sixth Amendment rights.4 Travers, supra at

372-73, 768 A.2d at 851. The Travers Court observed Pennsylvania law is

now clear that redacted statements trigger confrontation clause concerns

under Bruton only if the redacted statement on its face ties the defendant

to the crime, but not if the incrimination arises from linkage to other evidence

in the case. Id. at 372 n.2, 768 A.2d at 850 n.2 (citing Gray v. Maryland,

523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998)).5 When the redacted

statement is not powerfully incriminating on its face, however, the general

rule that jurors can and will follow the court’s cautionary jury instructions

controls. Travers, supra. See also Commonwealth v. Sanford, 470 A.2d

998 (Pa.Super. 1984) (holding there was no violation of Bruton where trial

court admitted redacted confessions of two of appellant’s co-defendants and

court replaced all mention of proper names with pronouns “we” and “us,” and

instructed jury that statements were to be considered only against speakers

and not against remaining defendants; this redaction, coupled with court’s

____________________________________________

4 In Travers, the direct references to the non-confessing defendant contained

in his co-defendant’s confession were replaced with the words “the other

man.”

5 In Gray, the prosecution had redacted co-defendant A’s confession by

substituting a blank space or the word “deleted” for co-defendant B’s name.

The High Court concluded that the redaction was insufficient as it did not make

a significant legal difference as compared to the original, unredacted

statement.

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limiting instructions, provided sufficient protection against denial of

appellant’s Sixth Amendment rights; use of “we” and “us” only alerted jury

that at least one other person had acted with speaker).

Moreover, even where a redacted confession violates Bruton, its

admission might be harmless error if other properly admitted evidence

overwhelmingly establishes the defendant’s guilt. Commonwealth v.

McGlone, 716 A.2d 1280, 1284 (Pa.Super. 1998), cert. denied, 528 U.S. 932,

120 S.Ct. 332, 145 L.Ed.2d 259 (1999). Further, “the United States Supreme

Court has not extended the reach of its per se Bruton rule to comments by

counsel, which are by definition nonevidentiary.” Commonwealth v. Roney,

622 Pa. 1, 57, 79 A.3d 595, 629 (2013), cert. denied, 574 U.S. 829, 135 S.Ct.

56, 190 L.Ed.2d 56 (2014). “[U]nder certain circumstances a prosecutor’s

comments might be so prejudicial as to raise the possibility of a Bruton

violation, e.g., if the prosecution discloses to the jury that the co-defendant’s

statement has been redacted and unequivocally identifies the defendant as

the individual whose name was removed.” Id. at 58, 79 A.3d at 629 (internal

citation and quotation marks omitted) (holding that prosecutor’s implicit

linkage of one co-defendant’s statement to appellant and other co-defendant

referring to co-defendants collectively as “they” did not rise to egregious level

to constitute Bruton violation).

Instantly, the PCRA court evaluated Appellant’s claim as follows:

Appellant’s concise statement alleges that [the court] erred:

“by denying (Appellant’s) claim under subsection B of the

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supplemental PCRA Petition filed on May 9, 2023, that his

trial counsel was ineffective for failing to object to the

hearsay statements of his co-defendant…” Appellant’s

supplemental PCRA Petition at subsection (B) also citing

Bruton, identifies four (4) statements which he complains

counsel was ineffective for failing to object to as follows:

A. Stephanie McGraw testified that Mr. Battle and

[Appellant] arrived at her house together and Mr.

Battle said “that he shot up the place and proceeded

to laugh about it.” Trial Tr. 182:8-18.

B. Shakim Varick testified that “When I asked Battle

what’s going on, he said they put in work” which

meant that he and (Appellant) physically harmed

someone. Trial Tr. 219:15-220:5.

C. Shakim Varick specifically testified that Mr. Battle

said “they” meaning (Appellant) and himself jointly,

did a drive by shooting. Trial Tr. 220:3-23.

D. Jessica Fox testified that Mr. Battle, among others,

were discussing the shooting at Outsiders the night

the shooting occurred with the clear implication that

they were involved in the shooting. Trial Tr. 260:3-

14[.6]

As Appellant’s counsel points out, Stephanie McGraw

testified that she encountered Battle and Appellant just after

the killing and Battle said, “that he shot up the place and

proceeded to laugh about it.” Voluntary extrajudicial

statements made by a defendant may be used against him

and are generally considered to qualify for admission into

evidence pursuant to the admission exception to the rule

against hearsay. Commonwealth v. Kitchen, [730 A.2d

513 (Pa.Super. 1999)]. Battle’s statement to Stephanie

McGraw admitting to “shooting up the place” is thus not

hearsay.

Battle’s statement to McGraw does not implicate the rule in

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6 Appellant does not challenge the statement by Jessica Fox on appeal, so we

do not discuss it further.

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Bruton either. …

In the present case, Co-defendant Battle’s out of court

statements to McGraw which implicate him directly in the

killing of [the victim] did not directly implicate Appellant.

Though Appellant argues that Battle’s confessions to

McGraw incriminated Appellant by implication, such

evidence has not been held to violate a defendant’s 6 th

Amendment Confrontation rights. When we instructed the

jury, we gave a cautionary instruction directing them not to

consider Battle’s statements against Appellant. This

allegation of error is meritless.

Appellant was not prejudiced by McGraw’s testimony either.

Appellant testified at trial and in so doing he identified

himself as the driver and Battle as the shooter in the drive

by shooting that killed [the victim]. His testimony totally

eclipses the purported hearsay testimony offered by

McGraw. Indeed, at the PCRA hearing, Appellant testified

that he wanted trial counsel to recall McGraw to the stand

to repeat the statement Battle made to her. For each of

these reasons, Appellant’s allegations of error relative to the

testimony of McGraw are wholly without merit.

Appellant next cites two statements from the testimony of

Shakim Varick which he argues alternatively are hearsay

which also implicates his Confrontation Rights triggering the

application of the rule announced in Bruton. Shakim Varick

encountered Appellant and Battle at his residence at

approximately 3:30 AM on the night of the killing. At trial,

Varick testified that he saw Appellant that night and it

looked like he was sweating. The relevant exchange

followed:

Q: How did they look to you at this point?

Varick: (Appellant) was sweating. When he came

through I asked him what’s going on and he said I

should ask Battle what’s going on?

Q: So he told you to ask Battle what’s going on?

Varick: Yes.

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Q: What happened when you asked Battle what’s

going on?

Varick: When I asked Battle what’s going on, he said

they put in work.

Q: When he said they put in work, can you tell us what

that means?

Varick: Like physically harming somebody.

Q: Did there come a time they actually described what

they did?

Varick: Yes

Q: Describe that?

Varick: When I asked Battle what did he do and he

said, yeah, I did a drive by?

Q: They did a drive-by?

[Varick]: Yes.

Q: He didn’t say I did a drive-by?

[Varick]: No.

(Trial N.T. 219-220).

… [Under Sanford, supra], Battle’s statements implicating

himself and, only by implication, Appellant, do not fall within

the ambit of Bruton.

* * *

… We agree with trial counsel’s assessment because not

one of Battle’s statements directly implicates Appellant. …

Accordingly, Appellant’s claim lacks arguable merit, and

because trial counsel clearly had a reasonable basis for not

filing a frivolous motion, his claim of error fails.

(PCRA Court Opinion, filed 5/24/24, at 6-10; 13) (some internal citations

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omitted).

We agree with the PCRA court’s analysis. Trial counsel testified at the

PCRA hearing that he did not object to Varick’s statement that “when I asked

Battle what’s going on he said, they put in work” because the statement did

not specifically mention Appellant. (See N.T. PCRA Hearing, 11/30/23, at 4-

5). Trial counsel stated that “[i]t was a vague statement made by Mr. Varick

when he was trying to make a deal with the United States Attorney’s Office

and signed a Kastigar[7] letter in order to basically become a witness for the

Commonwealth.” (Id. at 5). When PCRA counsel asked trial counsel if he

was aware that Varick was going to testify that Battle said “they, meaning,

[Appellant] and Battle did a drive-by shooting[,]” trial counsel reiterated that

Battle used the generic they and did not specifically implicate Appellant. (Id.)

(emphasis in original) (some internal quotation marks omitted).

When asked why trial counsel did not file motions in limine to exclude

the challenged statements, trial counsel emphasized that “the statements that

were discussed, none of them specifically identified [Appellant] by name.

Even if it were with regard to any statements that perhaps Mr. Battle may

have made, as far as being in an incriminating nature, my recollection is that

at no time did Mr. Battle specifically identify [Appellant].” (Id. at 7). Trial

____________________________________________

7 Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212

(1972) (explaining that transactional immunity provides witness full immunity

from prosecution for crimes arising from any transaction concerning which

witness was compelled to testify).

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counsel continued: “He used generic terminology like we or that the place

was shot up. He never identified [Appellant] as having been complicit in

that.” (Id.) (emphasis in original). Trial counsel went on to state that when

he “did the research on Bruton, which would basically preclude some of those

statements had they identified [Appellant], they had already been realistically

redacted because the remedy is for the [c]ourt to redact any specific reference

to a co-defendant in a joint trial, which this was.” (Id.) The following

exchange then took place between PCRA counsel and trial counsel:

[PCRA counsel]: And you would agree with me that for

at least the statement that Shakim Varick testified to that

when I asked Battle what’s going on he said, they put in

work. Only [Appellant] and Mr. Battle and Mr. Varick were

present for that statement, right?

[Trial counsel]: I think supposedly one or two of the

other females were possibly at that location, as well. And

Mr. Varick supposedly had not been around at the time of

the shooting. Who also interestingly enough drove a

similarly colored vehicle and style-type vehicle as

[Appellant].

[PCRA counsel]: You would agree with me though that

Mr. Battle’s statement that they only referred to himself and

[Appellant]?

[Trial counsel]: I did not draw that conclusion because

the statement was vague enough that—we put in the

work, okay. Well, that doesn’t necessarily mean that any

other person that was along with Mr. Battle, might not have

gone to the apartment. May have stopped off somewhere

else. May have gone someplace else.

But he never specifically identified [Appellant]. Nor from

what I can recall from discovery, which I extensively

reviewed and actually had another attorney help me review

because I was concerned about these statements, was

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basically he never specifically refers to [Appellant].

And we and those different terms and the terminology that

Mr. Battle was using was generic in nature. And from what

I recall, [Appellant] never said anything with regards to that

he was complicit. My understanding was he was sulking in

a corner. Apparently according to one of the witnesses,

seeming somewhat upset. That, I don’t believe, lead me to

believe that was who Mr. Battle was referring to,

[Appellant].

(Id. at 7-9) (emphasis in original).

Trial counsel also indicated that he did not want to draw any attention

to this statement by objecting to it because, in counsel’s experience, “that

draws attention to the jury to something that is quite frankly you want to

leave it as is; they.” (Id. at 11) (emphasis in original). Trial counsel

suggested that Battle’s reference to “they” could have included Appellant “or

any one of another dozen people who could have been involved, including Mr.

Varick, who mysteriously had disappeared to New York and then reappeared

right after the shooting.” (Id.) As part of his trial strategy, trial counsel

explained that he would not want to highlight Battle’s statements by objecting

to them, which are statements against interest, especially where it did not

specifically identify his client, Appellant. (Id.) Trial counsel indicated that

part of his trial strategy was “pointing the finger” at Mr. Varick, who counsel

argued received a “sweetheart deal” in exchange for his testimony. (Id. at

13-14).

Regarding Stephanie McGraw’s statement that Battle said “that he shot

the place up and proceeded to laugh about it[,]” trial counsel explained that

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he did not object to this statement, which only implicated Battle. (Id. at 9-

10). Trial counsel repeated that “[a]s far as I could tell, when I reviewed the

file in whole, I don’t believe at any point in time did [Battle] specifically

implicate [Appellant] as being an accomplice, an associate or in any way being

involved in this.” (Id. at 10). Regarding this statement, Appellant testified

at the PCRA hearing that he believed “the statement couldn’t hurt me. If

anything, it more helps more towards my defense.” (Id. at 27). When the

statement was made at trial, Appellant claimed he wanted trial counsel to

recall McGraw so trial counsel could “put more light onto her statement.” (Id.

at 27-28).

On this record, we agree with the PCRA court that Appellant’s claim lacks

arguable merit. As to McGraw’s statement, the record makes clear that

McGraw’s testimony concerning what Battle said implicated only Battle, where

Battle said “he shot the place up and then proceeded to laugh about it.” (See

N.T. Trial, 12/12/18, at 182) (emphasis added). As nothing in this statement

is facially incriminating as to Appellant, any challenge to this statement merits

no relief. See Rivera, supra. Further, as previously mentioned, Appellant

testified at the PCRA hearing that McGraw’s testimony to this effect

strengthened Appellant’s theory of the case, and Appellant even wanted to

recall McGraw to provide more details about this statement. Thus, Appellant’s

claim that trial counsel was ineffective for failing to move for exclusion of this

evidence lacks arguable merit, and Appellant did not suffer prejudice

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concerning this statement by McGraw in any event. See Sandusky, supra.

Regarding Varick’s statements that Battle had said “they put in work”

(see N.T. Trial, 12/12/18, at 219) and “they did a drive-by” (see id. at 220),

we agree with trial counsel that Battle’s use of the word “they” effectively

redacted the statements and did not directly implicate Appellant to trigger a

violation of Bruton. See Rivera, supra. See also Travers, supra;

Sanford, supra. Although Appellant contends that these statements implied

that Battle was referencing Appellant because other evidence showed

Appellant and Battle were together the entire night, such implication is not

“facially incriminating” against Appellant to trigger Bruton concerns. See

Travers, supra; Sanford, supra. Further, we disagree with Appellant’s

contention that the context of Varick’s statement made clear that Battle was

necessarily talking about himself and Appellant when using the word “they.”

Although the context of the statement begins with Varick explaining how

Appellant and Battle had arrived at Varick’s house (see N.T. Trial, 12/12/18,

at 218-19), that does not lend itself to the conclusion that Battle must have

been referencing Appellant when he said, “they put in the work” and “they did

a drive by.”

Notably, the court also issued a cautionary instruction during its jury

charge. (See N.T. Trial, 12/17/28, at 685) (stating: “A statement made

before trial may be considered as evidence only against the defendant who

made that statement. Thus, you may consider the statements as evidence

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against the defendant, Roberto Battle, if you believe he made the statement

voluntarily. You must not, however, consider the statement as evidence

against [Appellant]; and you must not use the statement in any way against

him"). The jury is presumed to have followed the court’s instructions. See

Travers, supra. Appellant fails to acknowledge the instruction given during

the jury charge and complains that the court did not issue an immediate

cautionary instruction. Appellant cites no law, however, to support an

argument that an immediate cautionary instruction is required to remedy a

potential Bruton violation. Moreover, even if the challenged statements

violate Bruton, such error is harmless where Appellant testified at trial that

he was driving the vehicle when Battle fired the shots. (See N.T. Trial,

12/14/18, at 542-553). See also McGlone, supra.

Further, counsel made clear that he did not file motions in limine to

exclude the challenged statements where they did not mention Appellant by

name, and did not object to them at trial because counsel did not want to

highlight the testimony for the jury. We cannot say that counsel’s chosen

strategy was unreasonable based on the controlling law. See Sandusky,

supra.

Appellant also claims prejudice where the prosecutor highlighted the

challenged statements in the prosecutor’s closing arguments. Nevertheless,

the prosecutor’s statements are not evidence. See Roney, supra. As well,

the prosecutor’s argument that Battle’s reference to “they” meant Appellant

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J-S01029-25

and Battle was a proper inference based on the evidence, particularly in light

of Appellant’s testimony. Additionally, Appellant claims that he “may not

have testified if these improper statements did not place him at the scene of

the murder and with the murderer before and after [the victim] was killed.”

(Appellant’s Brief at 24) (emphasis added). Initially, this does not satisfy the

prejudice threshold, i.e., that there is a reasonable probability that the

outcome of the proceedings would have been different. See Sandusky,

supra. Further, Appellant made no claim at the PCRA hearing that he would

not have testified in his own defense had the challenged statements not come

in at trial. Based upon the foregoing, we agree with the PCRA court that

Appellant has failed to demonstrate trial counsel’s ineffectiveness on the

grounds alleged. See id. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 3/10/2025

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