The opinion
J. S84039/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
REAFEAL FIELDS, : No. 366 EDA 2018
:
Appellant :
Appeal from the PCRA Order, December 29, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0014201-2010
BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 20, 2019
Reafeal Fields appeals from the December 29, 2017 order entered by
the Court of Common Pleas of Philadelphia County denying relief pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we affirm.
The PCRA court provided the following synopsis of the relevant factual
history:
Timothy Johnson (“Johnson”) arrived at the Ridge
Food Market . . . at 10:43 AM on February 11, 2010.
When he arrived he saw two men, whom he knew as
June and Shiz, on the corner. Johnson started
walking down the street toward 26th Street and then
heard about three gunshots. He turned around and
saw the decedent, a friend of his, lying on the
ground and June and Shiz running away. Johnson
identified June and Shiz as [Kelvin] Bryant and
[appellant], respectively.
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Philadelphia Police Officer Patrick Gereaghty
(“Officer Gereaghty”) arrived first at the scene,
where he found the decedent face-down in the snow
and unresponsive. Officer Gereaghty transported
him to Temple University Hospital, where he was
pronounced dead at 2:31 PM.
Both [appellant] and Bryant later told Amin Payne
(“Payne”) that they had killed the decedent.
[Appellant] and Bryant told Payne that after they had
spoken with Johnson outside the store, they had
killed the decedent over drug territory: “They did
not want him selling drugs on Bailey Street.”
[Appellant] and Bryant told Payne that Bryant had
used his 9mm and that [appellant] had used a
.38 caliber revolver.
Later that evening, Bryant and [Milique] Wagner
were inside Bryant’s mother’s apartment with Payne
and Herman Adams (“Adams”), where they were
heat-sealing bags of drugs. Bryant received a phone
call, and he and Wagner went outside. A short time
later, Payne looked out the window and, not seeing
Bryant and Wagner, went outside and looked down
the street. He saw Bryant and Wagner at the corner
of 25th Street and Cecil B. Moore Avenue speaking
with King and then saw them “just pull out on the
boy and shoot him up.” The two then ran down the
street and turned up 26th Street. Adams testified at
trial that he heard the gunshots about ten minutes
after Bryant and Wagner had left the apartment.
Bryant called Payne thirty minutes later and told
him, “I had to holler at another one.” A few days
later, Bryant told Payne, “I killed the one, I might as
well get the rest. I got to get them out of the way.”
At the scene, police recovered a sandwich bag
containing four smaller ziplock bags, each containing
a green, leafy substance, and two heat-sealed bags
containing an off-white, chunky substance. Police
Officer Flade testified that, in his experience, the
substances appeared to be marijuana and crack
cocaine. Twenty-seven cartridge casings were also
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found, all fired from two 9mm semi-automatic
handguns.
All three defendants left Philadelphia after
February 11, 2010 and were arrested outside the
county. Detective James Burke (“Detective Burke”)
testified that on February 20, 2010, he went to
1712 North Marston Street in Philadelphia, where he
found Nikki Williams (“Williams”), [appellant’s]
girlfriend and mother of his children. [Appellant]
resided at that location, but was not there.
Detective Burke told Williams that [appellant] was
wanted, and that he should call Detective Burke or
turn himself in to police. Ultimately, Detective Burke
found [appellant] at a house in Norristown,
Pennsylvania on March 3, 2010. When he was
arrested, [appellant] gave 1712 North Marston
Street as his address.
PCRA court opinion, 6/19/18 at 3-5 (footnotes and citations to the record
omitted).
The PCRA court also summarized the following procedural history:
On February 6, 2013, following a jury trial before
[the trial court, appellant] was found guilty of
murder of the first degree, criminal conspiracy, and
possessing instruments of crime.[Footnote 2] That
same date, [the trial court] sentenced [appellant] to
the mandatory term[Footnote 3] of life imprisonment
for murder of the first degree.[Footnote 4] On
February 19, 2013, [appellant] filed post-sentence
motions, which [the trial court] denied on May 21,
2013. On May 29, 2013, [appellant] appealed his
judgment of sentence to [the] Superior Court, and,
on February 6, 2015, [the] Superior Court affirmed
the judgment of sentence. [Appellant] did not seek
further appellate review, therefore, his judgment of
sentence became final on March 9, 2015, at the
expiration of the period for filing a Petition for
Allowance of Appeal. 42 Pa.C.S.[A.] § 9545(b)(3) (a
judgment of sentence becomes final “at the
conclusion of direct review, including discretionary
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review in the Supreme Court of the United States
and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.”).
[Footnote 2] 18 Pa.C.S.[A.] §§ 2502(a),
903, and 907(a), respectively.
[Footnote 3] 18 Pa.C.S.[A.] § 1102(a)(1).
[Footnote 4] As to the remaining charges,
[the trial court] imposed concurrent
sentences as follows: as to the conviction
for criminal conspiracy, [the trial court]
sentenced [appellant] to a term of not
less than five years nor more than ten
years[’] confinement; as to the conviction
for PIC, [the trial court] sentenced
petitioner to a term of not less than one
year nor more than five years[’]
confinement.
[Appellant] filed the instant timely counseled PCRA
petition on March 7, 2016. Following several
continuance requests by counsel in order to
supplement and amend [appellant’s] claims, counsel
filed an amended petition on February 10, 2017.
After several requests by the Commonwealth for
additional time to respond, the Commonwealth filed
a motion to dismiss on September 1, 2017.
Following a review of the pleadings, [the PCRA court]
found that [appellant’s] claims lacked merit, and, on
November 28, 2017, provided [appellant] a notice
pursuant to Pa.R.Crim.P. 907 ([“]907 Notice[”]) of its
intent to deny his claims and dismiss his petition
without a hearing. [Appellant] did not respond to
the 907 Notice. Therefore, on December 29, 2017,
[the PCRA court] dismissed [appellant’s] petition
consistent with the 907 Notice. This timely appeal
followed.
Id. at 1-2 (citations to exhibits omitted; additional footnotes omitted).
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The PCRA court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to a Pa.R.A.P. 1925(b). Appellant
complied. The PCRA court subsequently filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
[I.] [Whether] [t]he PCRA court erred because the
record supported [appellant’s] trial counsel
ineffectiveness claim regarding trial counsel’s
failure to consult with [appellant] about the
possibility of requesting DNA testing on the
black knit hat collected near the shooting
scene and subsequently requesting the
discussed DNA testing[?]
[II.] [Whether] [t]he PCRA court erred because the
record supported [appellant’s] trial counsel
ineffectiveness claim regarding trial counsel’s
failure to object to the trial court’s flight
instruction as it related to [appellant?]
[III.] [Whether] [t]he PCRA court erred because the
record supported [appellant’s] appellate
counsel ineffectiveness claim regarding
appellate counsel’s failure to raise, brief, and
argue the record-based claim that the trial
court erred by refusing to issue a Kloiber
instruction in connection with
Timothy Johnson’s identification[?]
[IV.] [Whether] [t]he PCRA court erred because the
record supported [appellant’s] cumulative
prejudice claim[?]
Appellant’s brief at 3-4 (citations omitted).
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
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PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, [] 17 A.3d
297, 301 ([Pa.] 2011) (citation omitted). A PCRA
court’s credibility findings are to be accorded great
deference, and where supported by the record, such
determinations are binding on a reviewing court.
Id., at 305 (citations omitted). To obtain PCRA
relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one of more of the errors
enumerated in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
id., § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[,]” id.,
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter of right has ruled on
the merits of the issue[.]” Id., § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to do so before trial, at trial, . . . on appeal or
in a prior state postconviction proceeding.” Id.,
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
On appeal, appellant alleges ineffective assistance of counsel by both
his trial counsel and his counsel on direct appeal. Under the PCRA, an
individual is eligible for post-conviction relief if the conviction was the result
of “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.”
42 Pa.C.S.A. § 9543(a)(2)(ii). When considering whether counsel was
ineffective, we are governed by the following standard:
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[C]ounsel is presumed effective, and to
rebut that presumption, the PCRA
petitioner must demonstrate that
counsel’s performance was deficient and
that such deficiency prejudiced him.
Strickland v. Washington, 466 U.S.
668 [] (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into
two distinct components.
Commonwealth v. Pierce, [] 527 A.2d
973, 975 ([Pa.] 1987). Accordingly, to
prove counsel ineffective, the petitioner
must demonstrate that: (1) the
underlying legal issue has arguable
merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) the
petitioner was prejudiced by counsel’s
act or omission. Id. A claim of
ineffectiveness will be denied if the
petitioner’s evidence fails to satisfy any
one of these prongs.
Commonwealth v. Busanet, [] 54 A.3d 34, 45
([Pa.] 2012) (citations formatted). Furthermore,
“[i]n accord with these well-established criteria for
review, [an appellant] must set forth and individually
discuss substantively each prong of the [Pierce]
test.” Commonwealth v. Fitzgerald, 979 A.2d
908, 910 (Pa.Super. 2009).
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),
order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).
I.
First, appellant contends that his trial counsel, Andres Jalon, Esq.,
rendered ineffective assistance because he did not request pretrial DNA
testing of a black knit hat found at the scene of the shooting. Specifically,
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appellant argues that the black knit hat “could possibly provide exculpatory
information if subjected to DNA testing.” (Appellant’s brief at 8.) Appellant
further argues that his claim has arguable merit because “the gunman’s
identity was at issue.” (Id. at 11.)
In his argument, appellant relies on our supreme court’s decision in
Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006). In Williams, the
court determined that the defendant’s PCRA claim had arguable merit
because the DNA testing at issue would have challenged the victim’s
identification of the defendant. Id. at 1064. Williams, however, is
distinguishable from the case presently before us. The victim in Williams
was raped four times and the defendant alleged ineffective assistance of
counsel for failing to request DNA testing. Id. at 1062. The DNA testing at
issue in Williams had the ability to “settle whether there will be a conviction
or not. It [could have] demolish[ed] the prosecution’s case, [or] it [could
have] cast it in concrete as well.” Id. The PCRA court concluded that the
DNA testing at issue here would not have been as conclusive as the DNA in
Williams.
Indeed, as the PCRA court notes,
[T]he evidence in question was a black knit cap
found at the scene of the shooting. While
[appellant] offered evidence that one witness
described the shooter to police[Footnote 14] as
having worn a black knit cap at the time of the
shooting, this was insufficient to establish that the
cap found at the scene is the same cap which was
worn by the shooter. Upon this record, [the PCRA
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court] found nothing to establish that the hat
recovered at the scene was actually connected to the
shooting, and not a merely unrelated hat which had
been discarded in the area for an unknown period of
time. In order for DNA testing on the found hat to
have any relevance to [appellant’s] case, there must
be evidence to establish that this is not merely a hat,
but, rather, the hat. See Pa.R.E. 401 (providing
that evidence is relevant if it has “any tendency to
make a fact more or less probable than it would be
without the evidence,” and if “the fact is of
consequence in determining the action.”);
Pa.R.E. 402 (providing that evidence that is not
relevant is not admissible). Without such evidence
linking the cap itself to the shooter, even if the cap
was tested for DNA and the results were inconsistent
with [appellant], those results would not be
exculpatory. As [appellant] did not establish that it
is more likely than not that the cap recovered from
the shooting scene was the same cap allegedly worn
by the shooter, and, therefore, that DNA testing of
the cap would have been consequential in
challenging the identification of [appellant], this
evidence is irrelevant. As DNA testing of the cap
could not have corroborated [appellant’s] alibi
defense, and would not have been admissible on this
record, this claim lack[s] arguable merit, and it fails.
[Footnote 14] Indeed, [the PCRA court]
notes that [appellant’s] evidence more
strongly suggests that the cap found at
the scene was not the same cap worn by
the shooter: On February 11, 2010,
Anthony Benton gave a statement to
[h]omicide [d]etectives asserting that, at
the time of the shooting, he looked out
the first floor window of his residence
after hearing 4-5 gunshots, and saw a
[b]lack male in his late 20s to early 30s,
with a full beard, standing near the
decedent with a gun in his hand and
wearing a black coat, a black knit hat,
and blue jeans. Amended PCRA Petition,
2/10/17, at Exs. 1 and 2. Benton
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asserted that he then saw the shooter
run south down Taney Street as he was
attempting to put the handgun in his
waistband. Id. Benton asserted that he
kept his focus on the fleeing shooter “to
make sure he didn’t come back,” and
that the shooter’s “face really st[ood] out
to me.” Id. Considering Benton’s
opportunity to view the shooter, [the
PCRA court] finds it telling that nowhere
in Benton’s account did Benton assert
anything to suggest that the shooter
discarded his black cap, or that the cap
fell off the shooter’s head during his
flight from the scene.
PCRA court opinion, 6/19/18 at 8-9 (emphasis in original).
Based upon our review of the record, we find that the PCRA court’s
conclusions are well based in the record. Unlike the defendant in Williams,
appellant has failed to establish that the DNA evidence from the black knit
cap would have the ability to either demolish the Commonwealth’s case or,
inversely, set the Commonwealth’s case in concrete. See Williams, 899
A.2d at 1064. Accordingly, appellant’s first issue lacks arguable merit.
II.
In his second issue on appeal, appellant argues that Attorney Jalon
rendered ineffective assistance for failing to object to the trial court’s flight
instruction to the jury as it related to appellant. (Appellant’s brief at 16.)
Specifically, appellant contends that the flight instruction was improper
because the Commonwealth did not present any evidence that appellant
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knew that he was wanted by the police or that the police had obtained a
warrant for his arrest. (Id. at 21.)
When reviewing a trial court’s instructions to the jury, we are
governed by the following standard:
[W]hen evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole,
and not simply isolated portions, to determine if the
instructions were improper. We further note that, it
is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion
in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately,
and accurately presented to the jury for its
consideration. Only where there is an abuse of
discretion or an inaccurate statement of the law is
there reversible error.
Commonwealth v. Roane, 142 A.3d 79, 95 (Pa.Super. 2016), quoting
Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa.Super. 2007) (citation
omitted).
When addressing jury instructions pertaining to flight, we have held
that:
[a] flight instruction is proper when:
a person has reason to know he is
wanted in connection with a crime, and
proceeds to flee or conceal himself from
the law enforcement authorities, such
evasive conduct is evidence of guilt and
may form a basis, in connection with
other proof, from which guilt may be
inferred.
Commonwealth v. Harvey, [] 526 A.2d 330, 334
([Pa.] 1987). “A defendant's knowledge may be
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inferred from the circumstances attendant [to] his
flight.” Commonwealth v. Johnson, [] 838 A.2d
663, 681 ([Pa.] 2003).
Commonwealth v. Thoeun Tha, 64 A.3d 704, 714 (Pa.Super. 2013).
Here, appellant argues that the trial court erred when it gave a flight
instruction to the jury because the Commonwealth failed to present
sufficient evidence that a jury instruction on flight was justified. (Appellant’s
brief at 21-22.)
On this issue, the PCRA court reached the following conclusion:
Here, Detective James Burke tried to find [appellant]
at his girlfriend’s house on February 19, 2010.
[Appellant’s] girlfriend, Nikki Williams, told Detective
Burke that [appellant] lived there, but was not home
at the time. Detective Burke informed Williams that
[appellant] was wanted, that he should turn himself
in or otherwise contact [the] police, and asked
Williams to relate this information to [appellant] if
she was able to make contact with him.[Footnote 15]
[Appellant] was not arrested until March 3, 201[0],
when Detective Burke found him at a house in
Norristown. When he was asked his address after
his arrest, [appellant] gave Williams’ address. This
evidence was sufficient to show that [appellant] had
disrupted his normal pattern of living following the
shooting in this case.
[Footnote 15] At trial, Detective Burke
testified that, on February 20, 2010, he
also approached [appellant’s]
grandmother, another girlfriend of
[appellant’s] named Lisa Green, and
[appellant’s] wife Nicole Carter, at their
respective residences and that he told
them all the same information which he
told Williams. Detective Burke further
testified that he and other members of
the Homicide Division, Fugitive Squad,
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put up wanted posters around
[appellant’s] neighborhood on that same
date.
PCRA court opinion, 6/19/18 at 10-11 (citations to the record and
footnote 16 omitted).
Based on our review of the record, we find that the Commonwealth
presented sufficient evidence that appellant either knew or had reason to
know that he was wanted in connection with the February 11, 2010
shooting. Accordingly, the trial court did not abuse its discretion when it
provided the jury with the flight instruction. Therefore, appellant’s
ineffective assistance of counsel claim pertaining to counsel’s failure to
object to the trial court’s jury instructions is without arguable merit.
III.
Appellant next avers that appellate counsel1 rendered ineffective
assistance for failing to raise, brief, and argue before this court “the
record-based claim that the trial court erred by refusing to issue a
1 Attorney Jalon represented appellant both at trial and on direct appeal.
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Kloiber[2] instruction in connection with Timothy Johnson’s testimony.”
(Appellant’s brief at 25.)
“We evaluate whether a Kloiber instruction is necessary under an
abuse of discretion standard.” Commonwealth v. Sanders, 42 A.3d 325,
332-333 (Pa.Super. 2012), appeal denied, 78 A.3d 1091 (Pa. 2013), citing
Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008), appeal
denied, 962 A.2d 1196 (Pa. 2008).
Appellant specifically argues that the trial court erred when it failed to
give the jury a Kloiber instruction because Johnson: (1) failed to identify
appellant at the preliminary hearing as one of the men fleeing the scene
immediately following the shooting; (2) testified at the preliminary hearing
that he only picked appellant out of a photo array because appellant was
someone he knew from the neighborhood; (3) failed to testify at trial that
appellant was one of two men leaving the scene of the shooting; and
(4) may have mistakenly identified appellant when he actually saw
2 See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). The Kloiber
court held that in cases where the:
witness is not in a position to clearly observe the
assailant, or he is not positive as to identity, or his
positive statements as to identity are weakened by
qualification or by failure to identify defendant on
one or more prior occasions, the accuracy of the
identification is so doubtful that the Court should
warn the jury that the testimony as to identity must
be received with caution.
Id. at 826-827.
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appellant’s brother, Eric Fields, the day of the shooting. (Appellant’s brief
at 30.)
The PCRA court concluded as follows:
Here, Johnson unequivocally identified [appellant] in
a statement to police as one of two men standing on
the corner before the decedent was shot, and then
running from the scene. Johnson had known
[appellant] for two years. However, at trial, Johnson
first said he did not recall who was on the corner or
who specifically ran away. Later, Johnson admitted
that he had told detectives that he saw [appellant]
running away and that that was the truth. He also
stated on cross-examination that it “could be
possible” that he confused [appellant] with
[appellant’s] brother, Eric Fields.
These qualifications do not neccessitate [sic] the
cautionary instruction under Kloiber. Johnson never
failed to identify [appellant] as one of the people on
the corner running from the scene. Although he
began to recant his original identification at trial, he
ultimately admitted that what was in his original
statement was the truth.
In any event, [the trial court] gave the jury the
following identification instruction:
There were two identifications in this
case which I will address with you. I am
referring to the testimony you heard
from Police Officer Rios, who identified
Kelvin Bryant from a photo array as the
person he chased on the night of
February 11, 2010, and to the testimony
you heard concerning Timothy Johnson’s
identification of [appellant] as one of the
persons he had seen on the corner of
Ridge and Taney Streets on the morning
of February 11, 2010.
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As you may recall, on cross-examination,
Mr. Johnson indicated that he might have
confused [appellant] with his brother,
Eric Fields, and indicated that they do
look alike.
In evaluating the testimony, in addition
to the other instructions I have provided
to you for judging the testimony of
witnesses, you should consider the
additional following factors.
Did the witness have a good opportunity
to observe the person he identified? Was
there sufficient lighting for that witness
to make those observations? Was the
witness close enough to the individuals
to know the physical characteristics or to
see that it was the person that he
knows? When the identification was
made, was it positive or was it qualified
by any hedging or inconsistencies?
In considering whether or not to accept
the testimony of these two witnesses,
you should consider all of the
circumstances under which the
identifications were made.
[Notes of testimony], 2/6/13 at 30-31.
PCRA court opinion, 6/19/18 at 13-14 (additional citations to the record
omitted).
Based upon our review of the record, we find that the PCRA court did
not abuse its discretion when it refused to provide the jury with a Kloiber
instruction, and we further find that its conclusions are well based in the
record. Therefore, appellant’s third issue lacks arguable merit.
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IV.
In his fourth and final issue on appeal, appellant raises a cumulative
prejudice claim. Specifically, appellant contends that the “cumulative
prejudice from the multiple trial errors rendered [appellant’s] trial
fundamentally unfair.” (Appellant’s brief at 37.)
[Our supreme court has] often held that “no number
of failed [] claims may collectively warrant relief if
they fail to do so individually.” [Commonwealth v.
Johnson, 966 A.2d 523, 532 (Pa. 2009)] (quoting
Commonwealth v. Washington, [] 927 A.2d 586,
617 ([Pa.] 2007)). However, [the court has]
clarified that this principle applies to claims that fail
because of lack of merit or arguable merit.
[Commonwealth v. Sattazahn, 952 A.2d 640, 671
(Pa. 2008)]. When the failure of individual claims is
grounded in lack of prejudice, then the cumulative
prejudice from those individual claims may properly
be assessed. Id.; Johnson, supra at 532 (citing
Commonwealth v. Perry, [] 644 A.2d 705, 709
([Pa.] 1994), for the principle that a new trial may
be awarded due to cumulative prejudice accrued
through multiple instances of trial counsel’s
ineffective representation.
Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011).
Here, none of appellant’s three issues pertaining to ineffective
assistance of counsel was disposed of due to a lack of a showing of
prejudice. Rather, all three issues failed because they lacked arguable
merit. Accordingly, appellant’s claim of cumulative prejudice from multiple
errors is without merit.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/19
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