Com. v. Rice, S.

J-S42008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHERROD RICE,

Appellant No. 1746 EDA 2014

Appeal from the PCRA Order June 12, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0400722-2003

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 14, 2016

Appellant, Sherrod Rice, appeals from the Order entered on June 12,

2014, that denied his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

The relevant facts of this case were set forth by a prior panel of this

Court in addressing Appellant’s direct appeal in 2009. This Court, quoting

the trial court, stated as follows:

The trial court summarized the procedural and factual

history of this case as follows:

[Appellant], Sherrod Rice, went to trial for the

above-captioned case before this court, and he

elected to be tried by a jury. This was a retrial of a

capital case, as the first trial ended on April 4, 2005

as a hung jury. [Appellant] was re-tried with his two

co-defendants, Dyrome Fuller and Robert

*

Former Justice specially assigned to the Superior Court.

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Richardson. The instant trial commenced on January

19, 2006, with the jury being sworn in and

[Appellant] being formally arraigned on the charges

of murder, firearms not to be carried without a

license, carrying firearms on public streets or public

property, possessing instruments of crime, criminal

conspiracy, aggravated assault, and recklessly

endangering another person. At the time of his

arraignment before the sworn jury, he pleaded not

guilty to all of the charges against him.

The Commonwealth rested its case against

[Appellant] on January 31, 2006, after presenting

witness testimony and forensic evidence. [Appellant]

offered no testimonial or physical evidence on his

own behalf, and rested his case after agreeing to a

final set of evidentiary stipulations.

The jury rendered its verdict on February 2,

2006. They found [Appellant] guilty of all charges.

They returned a verdict of first-degree murder as to

the general charge of murder for that bill of

information, and found him guilty of all of the other

offenses as charged. The trial court had previously

entered a judgment of acquittal for the charge of

firearms not to be carried without a license. The

penalty phase of the trial was continued to February

6, 2006. On that date, the trial court granted

[Appellant’s] challenge to the proposed “death

qualifying aggravating factors”.

The formal sentencing hearing for [Appellant]

was deferred, and a pre-sentence investigation

report and mental health evaluation were ordered.

After a review of the facts of this case, [Appellant’s]

prior record score, and his offense gravity score,

[Appellant] was sentenced on March 22, 2006. At

that time, [Appellant] was sentenced to the

mandatory sentence of life imprisonment for the

first-degree murder conviction. He received

sentences of imprisonment of two and one half years

to five years for the possessing instruments of crime

conviction, two and one half to five years’

imprisonment for firearms not to be carried on public

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street or public property, ten to twenty years for

criminal conspiracy, ten to twenty years for

aggravated assault, and one to two years for

reckless endangering another person. All of these

sentences were to run consecutive to the sentence of

life imprisonment and consecutive to each other.

A direct appeal to the Superior Court of

Pennsylvania followed, and was timely filed.

However, that appeal was dismissed for previous

appellate counsel’s failure to file a 1925(b)

statement. The appeal was reinstated by the

Superior Court pursuant to a motion by present

appellate counsel who cited the trial court reporter’s

failure to provide transcripts as the reason for the

inability to file a 1925(b) statement. This opinion by

the trial court is in response to the Pa.R.A.P. 1925(b)

statement that was ultimately filed by [Appellant] on

July 11, 2008.

FACTS:

On the afternoon of June 29, 2002, three of

the Commonwealth witnesses in this case, Ronald

James, Gregory Allen, and Hakim Lane, were

involved in a confrontation on a residential street in

Southwest Philadelphia that allegedly centered on

drug trafficking. There were gunshots fired at that

time, but no one was hit or injured. After this

incident, Hakim Lane summoned some of his friends

from North Philadelphia to retaliate against Ronald

James.

These “Friends” were [Appellant] and his two

codefendants, and they arrived on the block shortly

after the first altercation had ended. [Appellant] and

one of his codefendants were armed with automatic

handguns, and the second co-defendant came to the

scene with an assault rifle. The prosecution

witnesses linked [Appellant] with a nine millimeter

weapon that he was found with at the time of his

arrest some months later.

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As they entered the block after turning the

corner, all three of them began firing in an apparent

attempt to shoot Ronald James. When the shooting

commenced, there were a number of adults and

children who were sitting, walking, or playing on the

block. The Commonwealth offered testimony that

there were close to forty shots fired that afternoon

from the three weapons that [Appellant] and co-

defendants possessed. Car windows were shattered,

porches were struck, and two people were wounded.

The decedent, Omain Gullette, was fatally wounded

as he attempted to run away from the gunfire.

Another one of the unfortunate bystanders that

afternoon, Akeem Johnson, was severely injured

when he suffered gunshot wounds to one of his legs

as he stepped off his porch to go to the grocery

store.

Eyewitnesses were called by the

Commonwealth, and they testified that they saw

[Appellant] and co-defendants shooting up and down

the street on the afternoon in question. In addition,

there was testimonial evidence that detailed the

defendants’ relationship to each other, the reason

they were on the block that afternoon, and the

earlier conflicts that prompted them to arrive there

with the intent to kill or seriously injure Mr. James.

None of the three defendants offered any substantive

evidence to rebut the account of the incident that

was presented to the jury by the Commonwealth

witnesses, though they did challenge the credibility

of the eyewitnesses to this tragic event.

Trial Court Opinion (T.C.O.), 8/12/08, at 1-5.

Commonwealth v. Rice, 1490 EDA 2006, 981 A.2d 320 (Pa. Super. filed

June 17, 2009) (unpublished memorandum at 1-4).

The prior panel of this Court affirmed Appellant’s judgment of sentence

in the memorandum cited above on June 17, 2009. On December 18, 2009,

Appellant filed a timely PCRA petition. Barbara McDermott, Esquire, filed a

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counseled and amended PCRA petition on August 31, 2011. Subsequently,

the PCRA court appointed Emily Cherniack, Esquire to represent Appellant,

and Attorney Cherniack filed a supplemental PCRA petition on July 20, 2012,

and a second supplemental PCRA petition on July 11, 2013. On June 12,

2014, the PCRA court denied Appellant’s PCRA petition.

Appellant, through Attorney Cherniack, filed a timely appeal from the

PCRA court’s denial of his PCRA petition. While the appeal was pending,

Appellant filed a pro se letter with this Court challenging Attorney

Cherniack’s effectiveness as counsel. This Court forwarded Appellant’s pro

se letter to Attorney Cherniack pursuant to Commonwealth v. Jette, 23

A.3d 1032, 1044 (Pa. 2011). On June 3, 2015, Attorney Cherniack filed a

document with this Court in which she sought to either withdraw as counsel

or have the case remanded for a hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1998).1 On July 23, 2015, this Court filed an

order denying in part and granting in part Attorney Cherniack’s motion to

withdraw. In the July 23, 2015 order, we stated as follows:

Appellant, Sherrod Rice, is currently appealing an order

dismissing a first petition filed under the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. During the pendency of

the instant appeal, Appellant filed pro se documents assailing,

inter alia, the effectiveness of Attorney Emily Cherniack, his

appellate counsel. These documents were forwarded to Attorney

Cherniack pursuant to Pa.R.A.P. 3304 and Commonwealth v.

1

In Grazier, our Supreme Court held that where a defendant seeks to

waive his right to counsel, an on-the-record determination should be made

concerning whether that waiver is knowing, intelligent, and voluntary. Id.

at 12-13.

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Jette, 23 A.3d 1032, 1044 (Pa. 2011). On June 3, 2015, in

response to Appellant’s pro se pleadings, Attorney Cherniack

filed the aforementioned Petition to Withdraw as Counsel or in

the Alternative, Remand for a Grazier Hearing.

In Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.

Super. 2003), this Court explained that “[b]efore an attorney

can be permitted to withdraw from representing a petitioner

under the PCRA, Pennsylvania law requires counsel to file and

obtain approval of a ‘no-merit’ letter pursuant to the mandates

of Turner/Finley.”[2] Id. at 947 (citation omitted). In addition,

in Grazier, our Supreme Court set forth the requirement that an

on-the-record inquiry must be conducted to determine whether

an appellant’s waiver of counsel is knowing, intelligent, and

voluntary.

Here, Attorney Cherniack’s petition does not satisfy the

standards for withdrawal under Turner/Finley. Accordingly, we

DENY, without prejudice to raise the issue on remand, counsel’s

petition to withdraw. Moreover, while Appellant has expressed

his displeasure with present counsel and purported to raise

issues he desires to have decided by this Court, he has not

specifically requested to proceed pro se. Nevertheless, given the

pro se documents already filed by Appellant and Attorney

Cherniack’s petition, we find it prudent to remand this matter to

the PCRA Court for further proceedings. Therefore, we GRANT

counsel’s petition to remand for a hearing.

At this hearing, the PCRA court shall make the following

determinations: 1) if Appellant desires to represent himself, the

PCRA court shall conduct an on-the-record colloquy pursuant to

Grazier as to whether Appellant may proceed pro se; 2) if

Appellant does not wish to proceed pro se, the PCRA court shall

determine whether Attorney Cherniack may be permitted to

withdraw as counsel; and 3) if the PCRA court permits Attorney

Cherniack to withdraw, it shall determine if Appellant is entitled

to the appointment of new counsel. This hearing shall be

held within thirty days from the filing of this order, and

2

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) are

the seminal Pennsylvania cases discussing the requirements counsel must

satisfy in order to withdraw from representing a defendant on collateral

review.

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the PCRA court shall promptly notify this Court of its

determination. Upon notification of the PCRA court’s

determination, the Superior Court Prothonotary shall establish a

new briefing schedule.

Order, 7/23/15 (emphasis in original).

The PCRA court promptly complied with this Court’s directive and held

a Grazier hearing on August 18, 2015. Following the hearing, the PCRA

court permitted Attorney Cherniack to withdraw, determined that Appellant

did not desire to represent himself, and appointed current counsel, Barnaby

C. Wittels, Esquire. Thereafter, Attorney Wittels filed a brief on Appellant’s

behalf on January 19, 2016, and the Commonwealth filed its brief in

response on June 15, 2016.3 This matter is now ripe for disposition.

On appeal, Appellant raises the following issues for this Court’s

consideration:

A. Did the PCRA court err in denying PCRA relief where trial

counsel was ineffective for failing to object to an improper and

constitutionally incorrect jury instruction on specific intent to kill

in this first degree murder case?

B. Did the PCRA Court err in not granting an evidentiary hearing

so that Appellant could present testimony relative to trial

counsel’s failure to properly investigate the case?

C. Did the PCRA Court err in not granting an evidentiary hearing

so that Appellant could testify that trial counsel did not consult

with him prior to trial counsel admitting in his opening statement

to the jury that Appellant was guilty of some of the crimes

charged?

3

Appellant and the Commonwealth each petitioned for and were granted

three continuances in this protracted appeal. These six continuances are the

reason for the delay in our disposition of this matter.

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D. Did the PCRA Court err in not finding trial counsel ineffective

for failing to object to non-relevant and highly prejudicial

testimony at trial about drug dealing and Appellant’s role

therein?

Appellant’s Brief at 8.

Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

Appellant’s issues on appeal allege ineffective assistance of counsel.

When considering an allegation of ineffective assistance of counsel, we note

that counsel is presumed to have provided effective representation unless

the PCRA petitioner pleads and proves that: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and (3) appellant was prejudiced by counsel’s action or omission.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet

the prejudice prong of the ineffectiveness standard, a defendant must show

that there is a ‘reasonable probability that but for counsel’s unprofessional

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

Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of

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ineffective assistance of counsel will fail if the petitioner does not meet any

of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “The burden of proving ineffectiveness rests with Appellant.”

Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007). Additionally,

the right to an evidentiary hearing on a PCRA petition is not absolute, and

the PCRA court may decline to hold a hearing if the petitioner’s claims are

patently frivolous with no support in either the record or other evidence.

Commonwealth v. Walls, 993 A.2d 289 (Pa. Super. 2010); Pa.R.Crim.P.

907.

Appellant first argues that trial counsel was ineffective for failing to

object to an improper and incorrect jury instruction regarding the specific

intent to kill. On review, we are constrained to conclude that this issue was

not properly preserved.

It is well settled that in order to preserve an issue for appellate review,

an appellant must timely file a court-ordered Pa.R.A.P. 1925(b) statement of

errors complained of on appeal, and any issues not raised will be deemed

waived. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (re-

affirming the bright-line rule first set forth in Commonwealth v. Lord, 719

A.2d 306 (Pa. 1998)). Here, the Pa.R.A.P. 1925(b) statement that was filed

by prior counsel broadly alleges that “the trial court gave the incorrect jury

instruction on criminal conspiracy, accomplice liability, and first degree

murder.” Appellant’s Pa.R.A.P. 1925(b), 7/18/14, at ¶5. This issue, as

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presented to the PCRA court, fails to provide the basis for the challenge,

e.g., ineffective assistance of counsel, and fails to provide a concise error. If

Appellant was purporting to challenge that trial counsel was ineffective for

failing to object to a jury instruction, he provided a vague and imprecise

issue. In other words, all that can be gleaned from the issue as presented in

the Pa.R.A.P. 1925(b) statement is that the trial court allegedly erred in

providing its instruction to the jury on conspiracy, accomplice liability, and

first degree murder. We conclude that this overly broad claim of error fails

to preserve the issue for review. See Commonwealth v. Lemon, 804 A.2d

34, 38 (Pa. Super. 2002) (stating that when an appellant’s Pa.R.A.P.1925(b)

statement is too vague to identify his specific issue, the issue is waived).

Present counsel narrowed Appellant’s issue to an allegation that trial counsel

failed to object to the instruction as to “the specific intent to kill” element

necessary to prove first-degree murder. Appellant’s Brief at 23. However,

as stated above, this finite error was not presented to the PCRA court, and

therefore, we conclude that Appellant’s issue is waived on appeal.

In the second issue, Appellant avers that the PCRA Court erred in not

holding an evidentiary hearing to allow Appellant to present testimony

regarding trial counsel’s alleged failure to investigate this case. Specifically,

Appellant argues that trial counsel failed to investigate the backgrounds of

Commonwealth witnesses Channa Wright, Tricia Goldberg, Ronald James,

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and Darnell Peace because “much of their testimony was contradictory.”

Appellant’s Brief at 25.

On review, we point out that this is simply a bald accusation, and it is

not supported by any argument, citation to the record, or citation to relevant

authority. Accordingly, we conclude that this issue is waived.

Commonwealth v. Irvin, 134 A.3d 67, 73-74 (Pa. Super. 2016).4

In his third issue on appeal, Appellant avers that the PCRA court erred

in not holding a hearing “so Appellant could testify that trial counsel did not

consult with him prior to trial counsel admitting in his opening statement to

the jury that Appellant was guilty of some of the crimes charged.”

Appellant’s Brief at 26. We cannot agree.

At the outset, we note that Appellant had no right to an evidentiary

hearing.

A PCRA court is only required to hold a hearing where the

petition, or the Commonwealth’s answer, raises an issue of

material fact. Pa.R.Crim.P. 909(B)(1)-(2). When there are no

disputed factual issues, an evidentiary hearing is not required.

Id.; Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037,

1042 (1996) (citation omitted). If a PCRA petitioner’s offer of

proof is insufficient to establish a prima facie case, or his

allegations are refuted by the existing record, an evidentiary

hearing is unwarranted. See Commonwealth v. Hutchinson,

611 Pa. 280, 25 A.3d 277, 320 (2011) (citation omitted);

Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 17 (2011).

Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014).

4

Additionally, we point out that there is no assertion or indication in the

brief that the result of the proceedings would have been any different had

counsel investigated these witnesses. Thus, this issue would fail on that

basis as well. Reed, 42 A.3d at 319.

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The PCRA court comprehensively addressed Appellant’s issue as

follows:

During his opening statement, defense counsel conceded

to [Appellant’s] guilt as to “some of the crimes” with which he

was charged, and asked the jury to “only hold him accountable

for that which he committed.” (N.T. 1/19/06, pgs. 100-104).

Defense counsel asserted five times throughout his opening that

the evidence would show that [Appellant] “never shot” the

victim, and that he “was not guilty of first-degree murder.” Id.

Counsel did argue that [Appellant] was present at the scene of

the crime and brandished a firearm only with the intent to

confront a drug rival. It was asserted that [Appellant] neither

knew the decedent, nor had any motive to kill him.5

5

Counsel’s strategy was to show that just because

[Appellant] was present at the crime scene, that fact

alone did not automatically conclude that he was

guilty of first-degree murder. [Appellant] was tried

with two co-defendants all charged with related

crimes. In addition, a ballistics expert testified at

trial that projectiles removed from the victim’s body

indicated that the gunshot wounds were inflicted

from multiple firearms, none of which matched the

caliber firearm possessed by [Appellant]. (N.T.

1/26/06, pgs. 201-208).

[Appellant] argues that defense counsel had no legal

authority to employ such a strategy. Specifically, [Appellant]

argues that, first, that [sic] the right to effective assistance of

counsel attaches during opening statements as a matter of

constitutional law under the Sixth Amendment, and second, that

by [sic] utilizing this concession of guilt tactic without

[Appellant’s] consent, amounts to per se ineffectiveness of

counsel. It is asserted that because of counsel’s strategy,

[Appellant] “suffered prejudice as a result of trial counsel’s

unilateral concession of guilt.” ([Appellant’s] Supplemental

Amended Petition, 6/20/12).

It is well settled that the law presumes that counsel was

effective at trial and the defendant carries the burden of proving

ineffectiveness. Commonwealth v. Baker, 614 A.2d 663 (Pa.

1992). It is the petitioner who bears the burden of proving that

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(1) the underlying claim has arguable merit, (2) counsel’s

actions or inaction had no reasonable basis, and, most

importantly, (3) the petitioner was prejudiced by the act or

omission to such a degree that but for counsel’s conduct, the

outcome of the proceedings would have been different.

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Strickland v.

Washington, 466 U.S. 668 (1984). If any of these elements are

not satisfied, the claim fails. Commonwealth v. Fulton, 830 A.2d

567 (Pa. 2003). A claim of ineffectiveness of counsel will only be

granted when the petitioner establishes the counsel’s conduct so

undermined the truth determining process that no reliable

verdict could have been rendered. See, 42 Pa.C.S.A. §9543.

In analyzing ineffectiveness claims, the courts today are

guided by Strickland, as well as its companion case, United

States v. Cronic, 466 U.S. 648 (1984) — two United States

Supreme Court (USSC) decisions that require different methods

of analyzing attorney ineffectiveness. In analyzing a claim under

Strickland, the [Appellant] must satisfy each prong of the test,

including the showing of actual prejudice. Conversely, when

analyzing counsel’s alleged ineffectiveness under Cronic, an

analysis is not required, as the prejudice element is already

presumed.6

6

The court in Cronic outlined three specific

circumstances in which prejudice can be assumed:

First, a presumption of prejudice is warranted where

there is a complete denial of counsel during a critical

stage of trial. Second, prejudice is also presumed

where counsel “entirely fails to subject the

prosecution’s case to meaningful adversarial

testing.” Third, in any case where “although counsel

is available to assist the accused during trial, the

likelihood that any lawyer, even a fully competent

one, could provide effective assistance is so small

that a presumption of prejudice is appropriate

without any inquiry.” Under these circumstances,

prejudice need not be proven, as it can be clearly

assumed.

In this case, [Appellant] argues that “Cronic’s per se

prejudice standard applies,” as he asserts that defense counsel’s

actions were blatantly prejudicial under the law.

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In the case of Commonwealth v. Cousin, 888 A.2d 710

(Pa. 2005), the Pennsylvania Supreme Court held that the

attorney’s actions of conceding guilt during closing arguments,

after realizing acquittal of a homicide charge was unrealistic, did

not amount to inefficiency. The court, using the Strickland/Pierce

test, found counsel not ineffective and determined that the

attorneys’ actions did not fall under the Cronic analysis. The

court’s rationale — the Cronic case “is limited to cases []where

the magnitude of counsel’s error is such that the verdict is

almost certain to be unreliable,” and that “attorney’s strategic

decision to concede guilt during his closing argument was

qualitatively different from a complete failure to subject the

state’s case to adversarial testing as contemplated by Cronic.”

Id.

Further, in the USSC opinion of Florida v. Nixon, 543 U.S.

175 (2004), after the trial attorney deposed all the state’s

witnesses and evaluated the evidence in the case, he determined

that the defendant’s guilt was not subject to dispute. Faced with

the inevitability of going to trial, even though his client pled not

guilty, counsel conceded to the defendant’s guilt during his

opening statement. In a unanimous opinion, the Court held that

counsel was not deemed ineffective following a Strickland/Pierce

analysis, as it determined that counsel’s strategy did not

automatically render his performance deficient to trigger a

review under Cronic.7

7

The court determined that “if counsel’s strategy,

given the evidence bearing on the defendant’s guilt,

satisfies the Strickland standard, that is the end of

the matter; no tenable claim of ineffective assistance

would remain.” Nixon at 177.

In the present case, trial counsel, after fully reviewing the

case, determined that knowing the evidence against his client,

there was no possibility of acquittal. Therefore, counsel’s best

strategic defense was to seek a conviction for a lesser offense

than first-degree murder. According to the rationale of the

above-mentioned case law, counsel in the present case cannot

be found per se ineffective under Cronic.

Therefore, counsel’s actions in this case must be analyzed

under the Strickland/Pierce standard; however, [Appellant]

cannot sustain any of these elements. Counsel did have a

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reasonable basis for his strategic decision to concede

[Appellant’s] guilt — the evidence against [Appellant] was

overwhelming: multiple eyewitnesses (one of whom regularly

purchased drugs from [Appellant]) and ballistics evidence placed

[Appellant] at the scene of the crime as the victim was shot

multiple times. As this court noted in its opinion, trial counsel

“made a strategic choice not to attempt to make an absurd

argument that [Appellant] was not present at the crime scene or

that he did not fire a gun that afternoon, given the

overwhelming evidence to the contrary.” (Trial Court Opinion,

pg. 12). Counsel’s strategy was to argue to the jury that

[Appellant] was at the crime scene firing a weapon, but was not

firing at the decedent, and most importantly, according to

ballistics, he did not shoot the deceased. Trial counsel made the

only sensible and reasonable argument according to the facts of

this case. [Appellant] was neither prejudiced nor was he

deprived a fair trial. Additionally, because [Appellant] must

demonstrate actual prejudice, he failed to prove that but for

counsel’s conduct, the outcome of the proceedings would have

been different, as the evidence against [Appellant] was

overwhelming — he was present at the scene of the crime

engaged in criminal activity.[]

[Appellant] also argues that trial counsel made the

strategic decision to concede guilt without his consent.

[Appellant] may not have known exactly how counsel was going

to execute that strategy, but a mutual understanding must be

assumed in that the decision was the best opportunity to obtain

a favorable verdict. Further, if [Appellant] disagreed, objected,

or did not approve of counsel’s strategy, he never voiced any

concern or objection to the court at any time following opening

statements. (N.T. 1/19/06, pg. 105).9 Additionally, the Nixon

court also addressed this issue when it stated that defense

counsel, as a general matter, “has a duty to discuss potential

strategies with the defendant..., but when a defendant, informed

by counsel, neither consents nor objects to the course counsel

describes as the most promising means to avert a sentence of

death, counsel is not automatically barred from pursuing that

course.” Nixon at 178. However, the court in Cousin addressed

that point and held that the rationale in Nixon cannot be read so

narrowly as to only be applicable to capital cases. The court in

Cousin reasoned that the emphasis of Nixon was upon the

difference between a guilty plea and a reasoned strategy of

conceding guilt while still preserving all of the defendant’s other

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rights, rather than on the fact of counsel’s unsuccessful attempts

to elicit a response from his client after formulating his defense

strategy. The court went on to explain that Nixon recognized

that even if counsel concedes guilt during an opening statement,

the prosecution still must present sufficient evidence to support

a verdict of guilt beyond a reasonable doubt in spite of counsel’s

strategy.

9

See, Cousin (defense counsel stated that he never

specifically discussed conceding guilt with the

defendant, although he maintained that he and his

client understood that there was no possibility of an

acquittal. The court, in its rationale stated,

“...whereas here the attorney apparently conceded

guilt only upon the tacit understanding that both he

and his client understood form the state of affairs at

trial and this comprised the best opportunity to

attain a favorable verdict.”) at 722.

In the present case, concerning counsel’s concession of

guilt during opening statements, the actions were sensible and

reasonable under the circumstances and that the decision was

the best opportunity to obtain a favorable verdict in an attempt

to avoid a first-degree murder conviction. See, Commonwealth

v. Colavita, 993 A.2d 874 (Pa. 2010) (it is well established that

“where matters of strategy and tactics are concerned, counsel’s

assistance is deemed constitutionally effective if he chose a

particular course that had some reasonable basis designed to

effectuate his client’s interests”). Counsel’s actions cannot be

deemed per se prejudicial, and therefore cannot be governed by

Cronic. Therefore, counsel’s strategy, under a Strickland

analysis, cannot support a claim of ineffectiveness, as the

strategy was reasonable and [Appellant] has failed to show

exactly how he was prejudiced in that but for counsel’s actions,

the outcome of the trial would have been different. Rather,

[Appellant] has concentrated on various constitutional concerns,

rather than attempting to fulfill each of the prongs of Strickland.

In addition, it is assumed [Appellant] was aware that an

acquittal was unlikely, and if he objected or disagreed with his

attorney’s strategy, he never voiced any objection to this court.

[Appellant] cannot satisfy any claim of attorney error concerning

this issue. For the reasons stated herein, [Appellant’s] claim

should be dismissed.

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PCRA Opinion, 9/18/14, at 3-9 (footnotes and emphases in original)

(footnote 8 omitted). We agree with this analysis. Counsel’s strategy was

wholly reasonable under the circumstances presented here, and Appellant

has failed to prove any of the prongs necessary to establish a claim of

ineffective assistance of counsel.

In his final claim of error, Appellant argues that the PCRA Court erred

in not finding trial counsel ineffective for failing to object to the

Commonwealth’s references to Appellant’s role in selling drugs. We

conclude that no relief is due.

Pursuant to stare decisis and our rules of evidence:

While evidence of prior bad acts is inadmissible to prove the

character of a person in order to show conduct in conformity

therewith, evidence of prior bad acts may be admissible when

offered to prove some other relevant fact, such as motive,

opportunity, intent, preparation, plan, knowledge, identity, and

absence of mistake or accident. Commonwealth v. Sherwood,

603 Pa. 92, 982 A.2d 483, 497 (2009); Pa.R.E. 404(b)(2)

(providing that “[e]vidence of other crimes, wrongs, or acts may

be admitted for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity or

absence of mistake or accident”).

Commonwealth v. Busanet, 54 A.3d 35, 60 (Pa. 2012). Moroever, we

note that counsel cannot be deemed ineffective for failing to present a

meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).

Here the PCRA court addressed Appellant’s argument as follows:

For the reasons mentioned herein, no claim of

ineffectiveness can be sustained, as it would have proven

meritless for defense counsel to object to evidence that was

properly admitted into the record.

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The evidence concerning [Appellant’s] prior drug dealing

activity and his relationships with his co-defendants was highly

relevant in establishing [Appellant’s] motive, intent, and identity

of why he was present at the crime scene firing a weapon.

It has been well established that where such evidence of

prior bad acts or crimes offered for some relevant purpose other

than to show criminal propensity or bas character, such evidence

is admissible. Commonwealth v. Spotz, 756 A.2d 1139 (Pa.

2000). Such evidence can be admitted to show, among other

things, motive, intent, plan, or identity. First, the evidence was

admitted to prove [Appellant’s] identity, as multiple witnesses

testified that they purchased drugs from [Appellant] on multiple

occasions. (N.T. 1/24/06, 139-143; 1/25/06, 86-88). Those

same witnesses identified [Appellant] as a shooter at the scene

of the crime. Second, the evidence was also admitted to

demonstrate [Appellant’s] motive, as [Appellant] was in dispute

with rival drug dealers who were present at the scene of the

crime. It was necessary for the jury to know this background

information, as it was the basis and backdrop for the events that

transpired at the scene of the crime.

Therefore, no claim of ineffectiveness can be sustained —

if counsel had objected to the admission of this relevant and

properly admitted evidence, the objection would have been

overruled. As the evidence was properly introduced at trial, it

was therefore proper for the Commonwealth to utilize that

evidence during opening statements. In analyzing this claim

under Pierce /Strickland, counsel cannot be deemed ineffective

as his failure to object was reasonable under the circumstances,

and because [Appellant] cannot demonstrate that but for

counsel’s conduct, the outcome of the proceedings would have

been different.10 Counsel cannot be deemed ineffective for failing

to raise a meritless claim. Commonwealth v. Monaco, 869 A.2d

1026 (Pa. Super. 2005).

10

In addition, this court instructed the jury on how

to specifically and properly use the evidence of prior

criminal acts. (N.T. 1/23/06, pgs. 119-120; 2/1/06,

pgs. 33-34). The law presumes that the jury follows

the instructions of the court. Commonwealth v.

Chmiel, 889 A.2d 501 (Pa. 2005).

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PCRA Opinion, 9/18/14, at 10-11 (footnote in original). We agree with the

PCRA court and conclude that this issue is meritless. References to

Appellant’s illicit drug activity were relevant and necessary to prove

Appellant’s motive, intent, identity, and absence of mistake.

For the reasons set forth above, we discern no error of law or abuse of

discretion in the PCRA court’s decision. Accordingly, we affirm the order

denying Appellant’s petition for collateral relief.

Order affirmed.

Judge Mundy joins this Memorandum.

Justice Fitzgerald Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2016

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