# Commonwealth v. Chmiel

> Supreme Court of Pennsylvania · November 9, 2011 · 612 Pa. 333

URL: https://www.frixlaw.com/law-library/cases/4965037

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. David CHMIEL
- **Court:** Supreme Court of Pennsylvania
- **Decided:** November 9, 2011
- **Citations:** 612 Pa. 333; 30 A.3d 1111; 2011 Pa. LEXIS 2708
- **Precedential status:** Published
- **Opinion:** Opinion of the court by McCaffery
- **Judges:** Baer, Castille, Eakin, McCaffery, Melvin, Saylor, Todd
- **Cited by:** 541 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4965037

## How later opinions describe it (automated extraction)

- holding that counsel’s failure to call an expert rebuttal witness does not constitute ineffectiveness; the PCRA petitioner must demonstrate that an expert witness was available who would have offered testimony designed to advance his cause
- stating that, to prove ineffectiveness for failing to obtain an expert witness, the petitioner “must demonstrate that an expert witness was available who would have offered testimony designed to advance [the petitioner’s] cause”
- concluding that the appellant's Brady claim concerning an alleged deal between the prosecutor and two material witnesses was waived for failure to have raised it in an earlier proceeding
- concluding that “if the petitioner cannot prove the underlying claim of trial counsel ineffectiveness, then petitioner’s derivative claim of appellate counsel ineffectiveness of necessity must fail”
- holding petitioner must “show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s ineffectiveness” in order to obtain PCRA relief

## Opinion text

OPINION
Justice McCAFFERY.
In this capital appeal, David Chmiel (“Appellant”) challenges the dismissal, following a hearing, of his petition for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 After careful consideration of Appellant’s arguments, we affirm the PCRA court’s order dismissing his claims.
On September 6, 2002, following a three-week jury trial, Appellant was convicted of three counts of first-degree murder for the deaths of Angelina Lunario, James Lunar-io, and Victor Lunario. He was also convicted of two counts of robbery and one count of burglary. Following a penalty hearing, the jury sentenced Appellant to death. On December 29, 2005, this Court denied Appellant’s direct appeal and affirmed the judgment of sentence. Commonwealth v. Chmiel, 585 Pa. 547 , 889 A.2d 501 (2005) (“Chmiel III”). 2
The facts underlying this case, and the evidence presented at the 2002 guilt and penalty phase proceedings, are fully de *1124 tailed in Chmiel III, supra. For ease of reference for the various issues raised herein, we selectively summarize the factual and procedural history as follows.
On the morning of September 21, 1983, the Lunarios, three elderly siblings, were found stabbed to death in their Throop, Pennsylvania home. The medical examiner estimated that they had died between 11:00 p.m. on September 20, 1983, and 2:00 a.m. on September 21, 1983. Evidence and statements by neighbors led the police to question or suspect Appellant and/or his brother, Martin Chmiel. Police found at the scene of the murders a sweater sleeve, which the police were able to determine had been cut from a sweater owned by Martin. The sweater sleeve was used as a mask in the burglary of the Lunario home. The police also learned that Martin was aware that the Lunarios had kept large quantities of cash hidden away in numerous locations throughout the house.
Following the murders, Appellant was observed in the community uncharacteristically displaying large quantities of cash. Appellant was known to be in need of money to pay lawyers who were defending him against criminal charges of rape, involuntary deviate sexual intercourse, indecent and aggravated assault, terroristic threats, and recklessly endangering another person. During a subsequent search of Appellant’s house, the police discovered $2400 in $50 and $100 bills on top of a hutch.
When police questioned Martin, based on the discovery at the murder site of the sleeve cut from his sweater, he admitted that he and Appellant had planned to rob the Lunarios to acquire the money needed for Appellant’s legal bills, but that Martin had backed out of the scheme. Martin informed the police that after news of the murders had become public, Appellant told him that he had committed the murders, providing details of the crime. Police determined that these details, as relayed to them by Martin, could only be known by the murderer, as none had been publicly released. However, Martin was able to show that at the time the Lunarios were murdered, he was participating with his brother-in-law, Thomas Buffton, in a “fire watch.” Although Buffton had been a co-conspirator with Martin in previous unrelated criminal activity, Martin’s arrival at the fire watch, if not his continued presence there, was vouched for by two other witnesses, including the Scranton Fire Chief.
In light of Martin’s alibi, the police directed their attention to Appellant. Following Appellant’s arrest, a Pennsylvania State Police forensic scientist conducted a microscopic analysis of six hairs retrieved from the sweater sleeve found at the murder scene. When the forensic scientist compared two of those hair strands microscopically with hair strands obtained from Appellant, both sets of hair strands contained identical features. The forensic scientist concluded that the two hair strands found on the sweater sleeve mask were microscopically similar to Appellant’s hair, but not to Martin’s or the Lunarios’ hair. (Later, in 2000 or 2001, mitochondrial DNA testing revealed that Appellant fell within one of the mitochondrial DNA profiles retrieved from two of the hairs found on the sweater sleeve.) 3
Appellant testified at his trial, denying any involvement with the murders and *1125 robbery of the Lunarios. He asserted that his prosecution for those crimes was the result of a conspiracy involving the police; his brother, Martin; Buffton; and others. In an alibi different from that he had asserted at an earlier trial, Appellant testified that he had been at the home of Patrick Battle from 11:00 p.m. on Tuesday, September 20, 1983, to 1:30 a.m. Wednesday morning on September 21, 1983, to watch the double-header baseball games between the Baltimore Orioles and the Detroit Tigers. Appellant further testified that after the baseball games, he drove to Martin’s residence, arriving by 1:45 a.m.
However, Appellant’s testimony was not consistent with other evidence produced at trial. Battle testified that the doubleheader had been on Wednesday night, almost twenty-four hours after the murders. Martin’s wife, Mary, testified that Appellant had arrived at their home at 3:45 a.m. on September 21, 1983. Another witness, Daniel McGlynn, testified that at 4:00 a.m. he observed Appellant in a restaurant located one mile from the Lunarios’ home. Moreover, Appellant’s car was observed near the Lunarios’ home at the time of the murders.
Following Appellant’s conviction, the matter proceeded to the penalty phase where Appellant gave evidence regarding the following mitigating factors: (1) his lack of a significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); (2) his lack of capacity to appreciate his conduct or to conform his conduct to the requirements of law due to substantial impairment by alcohol, 42 Pa.C.S. § 9711(e)(3); and (3) his character and background and the circumstances of his offense, 42 Pa.C.S. § 9711(e)(8). Appellant sought to prove the (e)(8) mitigating factors with evidence of his (a) family relationships; (b) abusive upbringing; (c) religious practice; (d) military service; (e) prison record; and (f) relationship with his daughter.
On September 10, 2002, the jury returned a death penalty verdict, finding two aggravating and two mitigating circumstances. The aggravating circumstances found by the jury were: (1) the commission of a murder in the perpetration of a robbery or burglary, 42 Pa.C.S. § 9711(d)(6); and (2) multiple murder convictions for the murders of the Lunarios, 42 Pa.C.S. § 9711(d)(ll). The mitigating circumstances found by the jury were: (1) Appellant did not have a significant history of prior criminal convictions, including felony convictions involving the use or threat of violence to another person, 42 Pa.C.S. § 9711(e)(1); and (2) Appellant proved “other evidence of mitigation” caused by his family relationships and abusive upbringing, 42 Pa.C.S. § 9711(e)(8). The jury found that the aggravating circumstances outweighed the mitigating circumstances.
Following Appellant’s conviction and sentence, his trial counsel, Paul A. Ackour-ey, Esq., and Gerard E. Grealish, Esq., withdrew their representation of Appellant. Robert M. Buttner, Esq., and James Elliott, Esq., were appointed as substitute counsel. Substitute counsel filed an amended post-sentence motion asserting forty alleged errors and eight claims of ineffectiveness of trial counsel. Following the denial of post-sentence motions, this Court affirmed Appellant’s sentence on direct appeal in Chmiel III, disposing of numerous challenges to the guilt and penalty phase proceedings, including several claims of ineffective assistance of counsel. 4 *1126 On October 2, 2006, the United States Supreme Court denied Appellant’s subsequent petition for writ of certiorari. Chmiel v. Pennsylvania, 549 U.S. 848 , 127 S.Ct. 101 , 166 L.Ed.2d 82 (2006).
Appellant filed a timely pro se petition pursuant to the PCRA on March 21, 2007, and the court appointed the Defender Association of Philadelphia, Capital Habeas Unit, to represent him. On June 30, 2008, Appellant filed a counseled amended PCRA petition, and thereafter, pursuant to a partial grant of a motion to supplement, Appellant filed a supplement to his amended PCRA petition, raising two additional claims. The PCRA court conducted hearings on the claims over an extended period: August 8 and 11-18, 2008; December 15-16, 2008, and February 3, 2009. The PCRA court denied Appellant’s request for PCRA relief in a detailed and extensive memorandum opinion and order filed on March 2, 2009. This appeal followed, wherein Appellant states twelve issues for review. 5
*1127 Under our standard of review for an appeal from the denial of PCRA relief, we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error. Commonwealth v. Washington, 592 Pa. 698 , 927 A.2d 586, 593 (2007). The PCRA court’s credibility determinations are binding on this Court when they are supported by the record. Commonwealth v. Johnson, 600 Pa. 329 , 966 A.2d 523, 532, 539 (2009). However, this Court applies a de novo standard of review to the PCRA court’s legal conclusions. Commonwealth v. Rios, 591 Pa. 583 , 920 A.2d 790, 810 (2007).
To be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a violation of the Pennsylvania or United States Constitution and ineffective assistance of counsel which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa. C.S. § 9543(a)(2)(i), (ii). Furthermore, a petitioner must establish that the claims of error raised in the PCRA petition have not been previously litigated or waived, and that “the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S. § 9543(a)(3) and (4); Washington, supra at 593 . An issue has been waived “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary retdew, on appeal or in a prior state post[-]conviction proceeding.” 42 Pa.C.S. § 9544(b). An issue has been previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2).
To prevail on a claim of ineffective assistance of counsel, a petitioner must overcome the presumption that counsel is effective by establishing all of the following three elements, as set forth in Commonwealth v. Pierce, 515 Pa. 153 , 527 A.2d 973, 975-76 (1987): (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because of counsel’s ineffectiveness. Commonwealth v. Dennis, 597 Pa. 159 , 950 A.2d 945, 954 (2008). With regard to the second, reasonable basis prong, “we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis.” Washington, supra at 594 . We will conclude that counsel’s chosen strategy lacked a reasonable basis only if Appellant proves that “an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Commonwealth v. Williams, 587 Pa. 304 , 899 A.2d 1060, 1064 (2006) (citation omitted). To establish the third, prejudice prong, the petitioner must show that there is a rea *1128 sonable probability that the outcome of the proceedings would have been different but for counsel’s ineffectiveness. Dennis, supra at 954 . “We stress that boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective.” Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa.2011).
As noted above, Appellant’s trial and the filing of his post-sentence motions predated this Court’s holding in Commonwealth v. Grant, 572 Pa. 48 , 813 A.2d 726, 738 (2002), in which we held that all claims of trial counsel ineffectiveness should be raised at the PCRA stage rather than on direct appeal. 6 In post-sentence motions and on direct appeal while represented by counsel different from counsel representing him at trial, Appellant raised numerous ineffectiveness claims against trial counsel that were fully litigated by the trial court. Because this circumstance constituted an exception to the Grant rule, we reviewed and disposed of Appellant’s raised ineffective assistance of trial counsel claims on direct appeal. See supra n. 5; Chmiel III, supra at 540-47. Any other claim of trial counsel ineffectiveness that Appellant failed to raise on direct appeal has been waived. See Commonwealth v. Tedford, 598 Pa. 639 , 960 A.2d 1, 13 (2008); Washington, supra, at 594 (citing 42 Pa.C.S. § 9544(b)).
However, any claims of ineffectiveness of trial counsel not previously raised, and thus waived, may be framed as “layered claims” under Commonwealth v. McGill, 574 Pa. 574 , 832 A.2d 1014, 1023 (2003). We have explained:
[T]o be eligible for relief on these ... claims, appellant must plead and prove that: (1) trial counsel was ineffective for a certain action or failure to act; and (2) direct appeal counsel was ineffective for failing to raise trial counsel’s ineffectiveness. As to each relevant layer of representation, appellant must meet all three prongs of the Pierce test for ineffectiveness. A failure to satisfy any of the three prongs of the Pierce test requires rejection of a claim of ineffective assistance of trial counsel, which, in turn, requires rejection of a layered claim of ineffective assistance of direct appeal counsel.
Commonwealth v. Ly, 602 Pa. 268 , 980 A.2d 61, 74 (2009) (quoting Commonwealth v. Collins, 598 Pa. 397 , 957 A.2d 237, 244-245 (2008)) (citations and footnotes omitted).
Thus, if the petitioner cannot prove the underlying claim of trial counsel ineffectiveness, then petitioner’s derivative claim of appellate counsel ineffectiveness of necessity must fail, and it is not necessary for the court to address the other two prongs of the Pierce test as applied to appellate counsel. Rios, supra at 800 ; Commonwealth v. Carson, 590 Pa. 501 , 913 A.2d 220, 233 (2006).
It is important to recognize that a claim of appellate counsel ineffectiveness for failing to raise a claim of trial counsel ineffectiveness is distinct from a claim of appellate counsel ineffectiveness grounded in the manner in which appellate counsel litigated a claim of trial counsel ineffectiveness on appeal. See Tedford, supra at 16 . In the former case, the claim of trial counsel ineffectiveness has been waived, but in the latter case, the claim of trial counsel *1129 ineffectiveness claims has been previously litigated.
[This] distinction [between previously litigated and waived claims of trial counsel ineffectiveness] is important because, if a trial counsel ineffectiveness claim was already litigated, appellant must show that appellate counsel was ineffective in the manner in which he litigated the claim; and if the claim was waived, on the other hand, appellant must demonstrate that appellate counsel was ineffective for failing to raise the claim on direct appeal.
Tedford, supra at 16 .
We now address Appellant’s claims as he has specifically worded them.
1. Are Appellant’s claims cognizable under the PCRA and not previously litigated or waived?
Appellant asserts that his claims were neither previously litigated nor waived. Rather than making a determination of this pervading issue at this stage, we shall address Appellant’s assertion as required during our review of his substantive arguments and sub-arguments. We note, however, that all of Appellant’s claims of trial counsel ineffectiveness, if not previously litigated, are waived for Appellant having failed to raise them on direct appeal. However, Appellant has presented layered ineffectiveness claims, asserting in each case that appellate counsel was ineffective for having failed to raise the relevant issues of trial counsel ineffectiveness. We now turn to Appellant’s substantive arguments, which we have rearranged and divided into guilt and penalty phase claims.
GUILT PHASE CLAIMS
2. Did the Commonwealth violate the dictates of Brady, Strong, Banks, and Napue by failing to disclose, prior to trial, the consideration received by Thomas Buffton and Martin Chmiel in return for their testimony against Appellant?
In this issue, Appellant alleges that the Commonwealth failed to disclose evidence favorable to him in violation of his constitutional right to due process as recognized in Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). Under Brady and the decisional law it has spawned, some of which Appellant references in his statement of this issue, 7 a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. Commonwealth v. Lesko, 15 A.3d 345, 370 (Pa.2011). Appellant contends that the prosecutor here withheld specific information of deals or “understandings” between the prosecutor and material Commonwealth witnesses, Martin Chmiel and Thomas Buffton, and the Commonwealth attorneys failed in their duty to admit to the jury the existence of such deals or understandings when these witnesses denied their existence during their trial testimony.
Appellant provides no indication as to when or how he became aware of the alleged Brady material, all of which would appear to have been available at the time of his trial (his third) or on direct appeal. Accordingly, Appellant’s Brady claims are waived for failure to raise them in an earlier proceeding. See Commonwealth v. *1130 Pursell, 555 Pa. 233 , 724 A.2d 293, 306 (1999) (citing 42 Pa.C.S. § 9544(b)); see also Commonwealth v. Morris, 573 Pa. 157 , 822 A.2d 684, 696 (2003) (rejecting a Brady claim where the appellant did not make clear that the information was not available at trial or that counsel could not have uncovered it with reasonable diligence).
However, Appellant asserts an ineffective assistance of trial and appellate counsel claim regarding their individual failures to pursue this issue. Thus, we review these claims solely through the prism of ineffectiveness of counsel. After so doing, we conclude that Appellant’s claims of ineffective assistance of counsel are meritless, as discussed below.
To establish a Brady violation, an accused must prove three elements:
the evidence [at issue] was favorable to the accused, either because it is exculpatory or because it impeaches; [2] the evidence was suppressed by the prosecution, either willfully or inadvertently; and [3] prejudice ensued.
Paddy, 15 A.3d at 450 (quoting Commonwealth v. Lambert, 584 Pa. 461 , 884 A.2d 848, 854 (2005)).
The burden rests with Appellant to “prove, by reference to the record, that evidence was withheld or suppressed by the prosecution.” Commonwealth v. Porter, 556 Pa. 301 , 728 A.2d 890, 898 (1999) (citations omitted). There is no Brady violation when the appellant knew or, with reasonable diligence, could have uncovered the evidence in question, or when the evidence was available to the defense from non-governmental sources. Paddy, supra at 451 .
Moreover, as we have observed:
The evidence alleged to have been -withheld by the prosecution must have been material evidence that deprived the defendant of a fair trial. Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. at 450 (emphasis in original; citations and quotation marks omitted).
Further:
In determining whether a reasonable probability of a different outcome has been demonstrated, the question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is shown when the government’s suppression of evidence undermines confidence in the outcome of the trial. The United States Supreme Court has made clear that [the] materiality standard is not a sufficiency of the evidence test. A Brady violation is established by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Importantly, the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. In order to be entitled to a new trial for failure to disclose evidence affecting a witness’s credibility, the defendant must demonstrate that the reliability of the witness may well be determinative of his guilt or innocence.
*1131 Commonwealth v. Weiss, 604 Pa. 573 , 986 A.2d 808, 815 (2009) (citations and quotation marks omitted).
We also recognize that due process requires the jury to be informed of any promise or understanding that the government would extend leniency in exchange for a witness’s testimony. Commonwealth v. Strong, 568 Pa. 455 , 761 A.2d 1167, 1172 (2000). Importantly, the understanding between the prosecution and its testifying witness need not be in the form of a signed contract or a completed, ironclad agreement in order to qualify as Brady material. Id. at 1171-72, 1174. “Impeachment evidence which goes to the credibility of a primary witness against the accused is critical evidence and it is material to the case whether that evidence is merely a promise or an understanding between the prosecution and the witness.” Id. at 1175. However, mere conjecture as to an understanding is not sufficient to establish a Brady violation. Commonwealth v. Champney, 574 Pa. 435 , 832 A.2d 403, 412 (2003).
Here, Appellant’s Brady claim is based on the following evidence adduced at trial and at the PCRA hearing. Martin Chmiel, his brother-in-law Thomas Buffton, and Appellant’s and Martin’s sister, Nancy, who was then married to Thomas, conspired to burn the Buffton house in order to obtain insurance proceeds. Martin did start a fire at the house, and the Bufftons did receive insurance proceeds for fire damage. The Bufftons then hired Appellant to repair the damage who, in turn, hired Martin to assist. This occurred shortly before the murders of the Lunar-ios. Appellant and Martin were still working on the house repairs when the murders occurred. Martin and Buffton were later arrested, pled guilty, and sentenced for their arson-related crimes. Nancy was not arrested or prosecuted.
Martin and Buffton testified for the Commonwealth at all three of Appellant’s trials. Martin testified regarding Appellant’s confession to him that he had committed the murders. Buffton provided an alibi for Martin during the time of the murders. At his third, 2002 trial, Appellant testified that he did not commit the murders, pursuing a trial strategy that attempted to direct suspicion toward Martin, and possibly Buffton as well.
During their 2002 trial testimony, both Martin and Buffton admitted that they had been convicted of crimes arising from the arson and that they had served prison sentences for these crimes. On cross-examination, Appellant’s counsel elicited testimony from Martin that he had been sentenced to one to two years’ imprisonment, but had served only nine weeks in the county jail and six weeks in a halfway house, with two years’ probation following. Further, the jury heard from Martin that his minimum sentence had been reduced to six months and that he was furloughed from a work-release program so that he could eat dinners at home. Martin admitted to cooperating with the police in the prosecution of Appellant; however, he denied that his testimony was given as part of a deal with the Commonwealth. See Notes of Testimony (“N.T.”) Trial, 8/26/02, at 41-43, 73-76.
Buffton testified at the 2002 trial that he had been sentenced to one to three years’ imprisonment for his part in the arson scheme. He further testified that at his resentencing hearing, an assistant district attorney appeared on his behalf, although he denied that this individual requested a reduction in sentence. However, Buffton’s sentence was modified to sixty days’ imprisonment in county jail, ten months of work release, and two years of probation. He never paid restitution for the insurance fraud. Buffton also denied that his trial testimony was part of a deal, testifying *1132 that the Commonwealth “offered nothing” and made no promises to him. N.T. Trial, 8/28/02, at 51-52, 93-98, 106-07. Both Martin and Buffton were resentenced on August 1, 1984. N.T. PCRA Hearing, 8/12/08, at 73; N.T. Trial, 8/28/02, at 106.
During closing argument, Appellant’s trial counsel urged the jury to disregard the testimony of Martin and Buffton based, in significant part, on the leniency on the arson sentences given them by the Commonwealth in what he alleged was an exchange for their trial testimony. Appellant’s counsel emphasized the brief jail time served by these witnesses and the fact that, while under their lenient sentences, they had been very quickly transferred to work release and enjoyed a significant number of weekend furloughs. N.T. Trial, 9/6/02, at 47-48. Counsel used the term “favoritism,” and in commenting that neither had provided restitution to the insurance company that they had defrauded, stated to the jury: “What a deal.” Id.
At the PCRA hearing, Buffton and Nancy testified on behalf of Appellant. Martin did not testify. Buffton testified that prior to Appellant’s first trial in 1984, he had met with Assistant District Attorney Ernest Preate and two state troopers. He testified that these individuals had told him that, while they could not promise him anything and they were not offering a “deal,” if Buffton testified for the Commonwealth at Appellant’s trial and pled guilty to the arson charges against him, they would not prosecute his wife, Nancy, for the arson, and would help him expunge his record at a future date. N.T. PCRA Hearing, 12/15/08, at 57-58. In response to a question regarding the importance of his testimony to the prosecution, Buffton answered: “I mean, I would have testified anyway that Marty wasn’t there between those hours but if it was — I was a husband and a father and I did what I had to do to protect my family.” Id. at 58. Further, Buffton stated that ADA Preate and the troopers told him that they could not formally offer a deal because “it would look like my testimony was bought.” Id. Buff-ton stated that the Commonwealth never followed through on its assurance that it would help him with expunging his record. Id, at 59-60.
On cross-examination, Buffton averred that he had testified truthfully at Appellant’s three trials. Id. at 61. When asked whether he told the courts everything he knew of the murders, Buffton responded: “The only thing I told them is that Marty was with me from, you know, like I said, 11:45 until the next day.” Id. Moreover, Buffton acknowledged that this statement was true, and would have remained his truthful testimony even if the Commonwealth had arrested and prosecuted Nancy for arson. Id, at 62.
Nancy, who during Appellant’s 2002 trial testified on behalf of Appellant, testified at the PCRA hearing that she had attended a meeting between Buffton and ADA Preate and some police officers. There, she learned that she would not be arrested in connection with her role in the arson if Buffton testified regarding his claim that Martin was with him at the time the murders were committed. N.T. PCRA Hearing, 8/12/08, at 18-20, 22-23. She stated that the Commonwealth’s representations regarding Buffton serving limited jail time for the arson and her not being charged with the crime were not reduced to writing because the Commonwealth representatives “kept telling” Buffton that “There’s no deal. There’s no deal.” Id. at 23, 27, 29. Nancy denied that her PCRA testimony could be interpreted as evidencing her belief that the Commonwealth had “forced ... an alibi.” Id, at 27. To her knowledge, Martin had been with Buffton on the night of the murders, but because she had not been with them, she could not say that he was actually there. Id.
*1133 The PCRA court found significant Buff-ton’s testimony that even had the Commonwealth not made any offers, he would still have testified that Martin had been with him on the night of the murders, thus providing Martin his alibi. PCRA Court Opinion, dated 2/27/09, at 53-54. Although not so stating, the PCRA court apparently found Buffton’s testimony on this point to be credible. The court then opined that, “assuming arguendo that the Commonwealth had provided the alleged considerations to Buffton in exchange for his testimony, [Appellant] has not established the requisite prejudice to prove a Brady violation.” Id. at 54. The court noted that the jury had heard “considerable evidence and argument with respect to any leniency and considerations provided to Martin Chmiel and Buffton in return for their testimony in this case.” Id. The court further observed that Nancy was a key witness for the defense, and evidence regarding her role in the arson would have served to impeach her credibility to the jury, undermining her testimony. Thus, the PCRA court reasoned that had the defense provided the jury with evidence regarding Nancy’s role in the arson and her role in the “understanding” Buffton had with the Commonwealth, Appellant’s defense would have been prejudiced. Id.
Here, Appellant now asserts that the evidence regarding the understandings or “deals” with Martin and Buffton, and the leniency allegedly afforded these witnesses by the Commonwealth in exchange for their testimony, would have had a more significant impact had the jury also heard an admission by the Commonwealth that it, in fact, had made such “deals.” Appellant asserts that the Commonwealth should not be rewarded for its failure to adhere to the dictates of Brady . Appellant’s Brief at 35-39; Appellant’s Reply Brief at 6-9. We emphasize, however, that because Appellant has waived his Brady claims, his current argument must be viewed only through the lens of counsel ineffectiveness. See, e.g., McGill, 832 A.2d at 1023 ; see also Commonwealth v. Ligons, 601 Pa. 103 , 971 A.2d 1125, 1146-47 (2009) (rejecting the argument that Brady claims cannot be waived because waiver would result in an unjust reward to the Commonwealth for withholding information). Viewing Appellant’s arguments through the lens of counsel ineffectiveness, we conclude that they are meritless.
First, Appellant has failed to establish that trial counsel were deficient in their advocacy of the issue of the reliability of the trial testimony of Martin and Buffton. Appellant asserts that the missing piece of critical information was the existence of the Commonwealth’s admission of an “understanding” or deal between it and Martin and it and Buffton. However, at the PCRA hearing, Appellant presented no evidence with respect to any pre-trial contact or “deal” between the Commonwealth and Martin, or any favorable treatment of Martin not already brought out by counsel at trial. With respect to the Commonwealth’s pre-trial contact with Buffton, Appellant’s PCRA evidence consisted principally of details regarding discussions between the Commonwealth and Buffton. However, trial counsel had provided evidence to the jury of the fruit of that discussion, namely, the leniency of Buffton’s sentence and Buff-ton’s subsequent favorable treatment at resentencing through the assistance of the Commonwealth. Further, trial counsel presented to the jury evidence that Buff-ton had not provided restitution for his significant insurance fraud. Trial counsel argued vigorously to the jury that Martin’s and Buffton’s respective testimonies concerning Martin’s alibi should be disregarded because of the favoritism shown them by the Commonwealth regarding their arson crimes and an apparent “deal” *1134 that they had struck -with the Commonwealth.
At best, the PCRA hearing produced evidence that Nancy would not be prosecuted for her crimes related to the arson if Buffton would testify at Appellant’s trial. As the PCRA court noted, however, Nancy was a trial witness for Appellant, and her exposure as a co-conspirator in the arson could have damaged her testimony in the eyes of the jury. “[W]e do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis.” Washington, 927 A.2d at 594 . Here, it would have been eminently reasonable for trial counsel not to have exposed Nancy’s role as a criminal co-conspirator, particularly where counsel had already established solid evidence of the Commonwealth’s otherwise favorable treatment of Buffton with respect to his trial testimony.
Second, with respect to the merits of Appellant’s underlying claim, we conclude that Appellant has failed to show that the alleged missing Brady evidence was “material.” In this regard, we must view the question of “materiality” bearing in mind the fact that the testimony of Martin and Buffton, which Appellant wished to impeach further with additional evidence of a Commonwealth deal or understanding, was offered at Appellant’s third trial, held nearly two decades after Martin and Buffton had served their sentences for arson. Thus, Appellant’s argument that this testimony was tainted by any understanding or deal the witnesses had had with the Commonwealth is rather thin. These witnesses had long ago served their sentences and thus faced no further repercussions from the Commonwealth for their arson crimes. Indeed, the lack of potential repercussions from the Commonwealth is evidenced by the fact that Nancy did not testify for the Commonwealth, but for Appellant at his last two trials.
Further, the PCRA court found credible Buffton’s testimony that he would have testified in any event, and that he had truthfully testified at trial regarding Martin’s alibi. Accordingly, any additional evidence of a deal or understanding between Martin and the Commonwealth and/or Buffton and the Commonwealth would not have been material under the circumstances. See Paddy, 15 A.3d at 450 (“Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).
The burden rests with Appellant to “prove, by reference to the record, that evidence was withheld or suppressed by the prosecution.” Porter, 728 A.2d at 898 . Here, the evidence brought forth at the PCRA hearing reaffirmed what trial counsel had brought forth at trial. The Commonwealth told Buffton that there was no deal; however, Buffton received favorable treatment from the Commonwealth, and Buffton asserted that he would have testified truthfully on Martin’s behalf notwithstanding. There is absolutely no basis to conclude that trial counsel rendered less than effective advocacy on the issue of the favorable treatment afforded Martin and Buffton. Because trial counsel were not ineffective, appellate counsel were not ineffective for raising a meritless claim.
3. Did trial counsel render ineffective assistance by failing to investigate and present witnesses to challenge the identification of Appellant’s car?
Appellant drove a distinctive car, a large powder blue Pontiac Grand Prix *1135 sedan with a prominent grill and a hood ornament. See Appendix to Appellant’s Petition for Writ of Habeas Corpus and for Collateral Relief from Criminal Conviction pursuant to the PCRA, filed 6/30/08, Tab 27; N.T. Trial, 8/28/02, at 165, 174. At trial, the Commonwealth presented the testimony of Linda Sinkevich and Mark Sinkevich, who resided one block from the Lunario home. Linda testified that at approximately 11:45 p.m. on September 20, 1983, stirred by the barking of her dogs, she looked out of her front window and saw a vehicle parked “nose to nose” with her car at the curb in front of her house. She testified that the lighting conditions were sufficient for her to describe the vehicle as a large powder blue car with a shiny grill and a hood ornament. She testified that the vehicle was not parked on the street when she awoke in the morning.
Linda was able to identify the car to the police in a photograph several days after she had observed it. Nine days after the murders, Linda picked the car out of an array of vehicles parked at the State Police garage. The car she identified belonged to Appellant.
Mark Sinkevich testified that when he arrived home between 2:15 a.m. and 2:30 a.m. on September 21, 1983, he also saw a vehicle parked bumper-to-bumper to his wife’s vehicle. He further testified that the vehicle was no longer on the street when he awoke and then later left the house at 8:30 a.m. the next morning.
In rebuttal, Appellant presented the testimony of the next-door neighbor of the Sinkeviches, Mary Ann Pelak. Pelak testified that the street was generally dimly lit and that the lighting conditions on the street in September 1983, were very poor. She further testified regarding the lengthy distance between streetlights near her house and that of the Sinkeviches; and she asserted that the lighting conditions were so poor on the street that a person would not be able to ascertain the color of a vehicle parked on the street at night. At closing argument, Appellant’s trial counsel emphasized Pelak’s testimony in an effort to raise a reasonable doubt regarding the accuracy of Linda Sinkevich’s testimony.
Here, Appellant clearly cannot claim that trial counsel provided deficient advocacy by not investigating whether there was any evidence to rebut the testimony of Linda Sinkevich. His trial counsel certainly had investigated to the extent that they were able to obtain a significant rebuttal witness: Linda Sinkevich’s next-door neighbor. Thus, in his present argument, Appellant contends that trial counsel’s investigation was not searching enough, and that appellate counsel were ineffective for having failed to raise and argue this point as well.
At his PCRA hearing, Appellant presented the testimony of two former neighbors of the Sinkeviches, Betty Ann and David Karr; the man who had purchased the Sinkevich house in 1991, Joseph Sep-aniak; and Mary Ann Pelak’s sister, Florence Pelak, who did not live on the street, but often visited her sister. These witnesses corroborated Mary Ann’s testimony that the nighttime visibility and lighting conditions on the street were poor until the more recent addition of augmented street lighting. The Karrs lived across the street from the Sinkeviches and testified that they were unable to ascertain the details of vehicles parked on the street at night from their residence. Florence Pe-lak described her sister’s street as very dark, and testified that she was unable to ascertain the details of vehicles parked on the street at night from her sister’s residence. Sepaniak testified that, during evening hours, he is unable to identify the make or model of any car parked on the street from the window of the house he had purchased from the Sinkeviches. An *1136 other witness, Gary Hendrix, a defense investigator, took measurements on the street, testifying that it was 43 feet from the Sinkevich porch to the curb, 180 feet to the relevant spot on the curb from one streetlight and 249 feet from another streetlight.
As with Mary Ann Pelak, none of these witnesses could testify regarding the particular conditions on the night of September 20-21, 1983, from the vantage point of Linda Sinkevich or otherwise. Sepaniak admitted to the court that he had never had any occasion to look out of his window for vehicles. N.T. PCRA Hearing, 8/11/08, at 21. However, these witnesses also testified that it was not unusual for strange vehicles to be parked on the street because there was a nearby bar, and they stated that they would have testified at trial regarding this knowledge had they been asked by Appellant’s counsel.
Appellant contends that because evidence that Appellant’s vehicle was parked near the scene at the time of the murders was a critical piece of information, trial counsel was ineffective for failing to secure the testimony of Appellant’s PCRA witnesses to help bolster Mary Ann Pelak’s rebuttal testimony. In order for Appellant to prevail on this claim, he needs to prove that his counsel were ineffective to the extent that counsel’s advocacy “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(i), (ii). More specifically, in our review of whether Appellant has cleared this significant hurdle of proof, “we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis.” Washington, 927 A.2d at 594 . We will conclude that counsel’s chosen strategy lacked a reasonable basis here only if Appellant proves that “an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Williams, 899 A.2d at 1064 (citation omitted). Further, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s ineffectiveness. Dennis, 950 A.2d at 954 .
Here, the PCRA court determined that Appellant’s claim must fail because (1) he failed to show that the additional testimony, had it been elicited by his counsel at trial, would have resulted in a reasonable probability that the outcome of the proceedings would have been different; (2) even if Appellant’s counsel had been able to successfully rebut the testimony of Linda Sinkevich with the PCRA testimony he had elicited, the remainder of the trial evidence, which the court set forth in dd-tail as recounted from our decision in Chmiel III, supra, was more than sufficient to establish Appellant’s guilt; and (3) the PCRA evidence that Appellant brought forth was, at best, cumulative of the testimony of Mary Ann Pelak and, thus, subject to exclusion by the trial court. See Commonwealth v. Bridges, 563 Pa. 1 , 757 A.2d 859, 875 (2000) (“[A] trial court may properly exclude evidence that is cumulative of other evidence.”).
Appellant contends that the testimony regarding the lighting conditions on the street where Linda Sinkevich saw a vehicle resembling Appellant’s, presented at his PCRA hearing, was not cumulative of the testimony of Mary Ann Pelak, as it included details not brought forth by Mary Ann, including placement of the street lighting and evidence that strange cars would often park on the street. However, the fact remains that no witness called by Appellant during his PCRA hearing could, with any better information than that given by Mary Ann Pelak, rebut the testimony of *1137 Linda Sinkevich, who had a unique vantage point and specifically observed a distinctive vehicle parked “nose to nose” with her vehicle at the relevant time. Based on this fact, there is no basis to conclude that trial counsel inadequately investigated and prepared for this issue, or otherwise rendered deficient advocacy with respect to this issue. As the underlying issue lacks merit, appellate counsel were not ineffective for failing to raise this issue on direct appeal.
4. Is Appellant entitled to relief from his conviction because of numerous errors relating to the Commonwealth’s introduction of inadmissible, unreliable hair comparison evidence[;] and was defense counsel ineffective for failing to seek exclusion of this evidence, rebut any inference of guilt arising from the evidence, or object to the prosecutor’s misrepresentation to the jury concerning the evidence?
This issue stems from the trial testimony of Commonwealth expert, George Surma, a twenty-seven year forensic scientist with the Pennsylvania State Police, who, at the time of Appellant’s third trial, had testified as an expert in forensic microscopy or electrophoresis on three to four hundred previous occasions. In addition to having analyzed blood and fiber samples found at the murder scene, Surma had analyzed and testified with respect to six hair strands taken from the sweater sleeve mask that was found at the Lunario home. His analysis involved using a comparison microscope to detect up to fourteen possible characteristic features of different components of the hair. Sur-ma testified that, based on his analysis, (1) one hair strand was “microscopically similar” to hair samples taken from Appellant, Martin Chmiel, and Victor Lunario; (2) three hair strands were “microscopically similar” to hair samples taken from Angelina Lunario; and (3) the remaining two hair strands were “microscopically similar” to hair samples taken from Appellant, but not to any hair samples taken from Martin or any of the murder victims. With respect to the latter two hair strands, Surma stated that his analysis ruled out Martin or the Lunarios as a source of those two hair strands. N.T. Trial, 8/27/02, at 18-23.
Surma was subjected to vigorous cross-examination by Appellant’s counsel. Sur-ma admitted that DNA testing is more precise than comparative microscopical analysis and that the advent of DNA analysis had greatly changed the field of forensics since the time he had examined the hair samples and other evidence in 1983 and 1984. 8 Id. at 24 . Surma further agreed that, at best, a scientist could only state that a hair comparison analysis could only reflect whether the hairs were “microscopically similar,” not “microscopically the same,” although the prosecutor had used the expression “microscopically the same” during some of his opening and closing remarks. Id. at 26 . 9 Surma further admitted that it is possible to examine two hair strands coming from the same head using the comparative analysis method that he had used in this case, only to find that the two hair strands are not microscopically similar. Id. at 26-27 . He asserted that neither he nor any analyst *1138 could testify that one particular hair came from one particular person. Id. at 30 .
Additionally, Surma admitted that in order to achieve an accurate hair comparison analysis, the collection of hair samples must have been made in accordance with the established scientific protocol. This protocol requires the collection from five regions of the head of five strands of hair each. Without such representative sampling, the microscopic results could be skewed. Surma relied upon the state troopers in the field to obtain the necessary samples, who had been trained to collect the appropriate samples. Id. at 27-29 . Surma could not say that the hair strands taken from the sweater sleeve had not been “contaminated” by the trooper, who might have mistakenly retrieved his own hair that might have fallen on the sleeve undetected. Id. at 35 . Surma could not say to the jury that any one hair is a hair from Appellant. Id. at 45 . Sur-ma also admitted on cross-examination that he did not conduct a one-to-one hair comparison between Appellant and Martin. Id. at 46 .
On redirect examination, Surma testified that, in his professional opinion, he felt he had a sufficient hair sample from Martin to make the necessary comparisons and would have asked for more hair if he had felt otherwise. Id. at 51 . For this reason, Surma could opine to a reasonable degree of scientific certainty that Martin could be excluded as the source of the two hairs that were “microscopically similar” to hair samples taken from Appellant, but not to any hair samples taken from Martin or any of the Lunarios. Id. at 52 . Surma then observed that hair analysis could exclude someone or include someone as a “possible source,” repeating the phrase “possible source.” Id. at 54 .
On re-cross-examination, Surma testified that when he had tested the hair strands in 1983 or 1984, he had no idea how Martin’s hair had been collected, and therefore he did not know whether Martin’s hair had come from only one region and not the requisite five regions. Id. at 56-57 . Accordingly, Surma admitted that he would have had no reason to request additional and more representative samples of Martin’s hair. Id. at 57 .
In his PCRA argument, Appellant raised three distinct claims of alleged counsel ineffectiveness with respect to the “hair” issue. These claims are that trial counsel were ineffective for not (1) seeking an exclusion of the microscopical hair analysis testimony of Surma pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923); (2) hiring an expert to contradict Surma’s testimony; and (3) objecting to purportedly improper remarks regarding Surma’s evidence made by the prosecutor in opening and closing remarks, or requesting a curative instruction from the court concerning these remarks. See Appellant’s Brief at 69. Appellant presents a layered ineffectiveness claim, asserting that appellate counsel were ineffective for failing to argue trial counsel’s deficiencies in these matters.
In support of his argument, Appellant presented the PCRA hearing testimony of Samuel James Palenik, a forensic chemical microscopist, who owns a laboratory in Illinois and teaches at, among other venues, crime labs around the country. Further, he speaks at worldwide venues on the subject of forensic microscopy, which he defined as the study of microscopic particles for various purposes, including comparison. N.T. PCRA Hearing, 12/15/08, at 64-66. He has taken an FBI course in hair analysis and was friends with “probably the best hair examiner in the world.” Id. at 67.
Palenik reviewed Surma’s “bench notes,” which are the notes taken by an analyst contemporaneously with the exami *1139 nation. Palenik found Surma’s notes inadequate or incomplete, making it difficult for him to ascertain whether Surma’s testing was reliable. Id. at 70, 78. 10 Palenik further noted that the relevant hair strands no longer existed, having been consumed by DNA testing, nor were there any photomicrographs taken of the hair. Palenik defined photomicrographs as photographs of material taken through a microscope. He therefore opined that it was not possible for him to perform a comparison with Surma’s findings. See id. at 75-78. In this regard, he testified that had Appellant’s counsel hired someone like himself in 2002 to review Surma’s conclusions, it would have been in vain because the hair no longer existed and there were no photomicrographs of the hair. Id. at 79-80; see also id. at 124,132-34. Penalik then testified, however, that he could not do a scientific comparison from photomi-crographs alone. Id. at 152.
Palenik also testified that the prosecutor’s opening statement comment to the jury that the microscopical hair evidence was physical evidence of Appellant’s guilt was “not a good scientific statement.” Id. at 80. He explained that scientists determine facts, not guilt or innocence. Id. He further explained that there are only so many characteristics that may be examinable by microscopy, allowing only the possibility that the hair comparisons show a correspondence with one individual. Id. at 81. Palenik explained that an analyzed hair sample could also be associated with others who have the same microscopic anatomy. Id. at 81, 153. However, he admitted that this possibility does not “take away from the value of a microscopic hair comparison. There are very good uses for that.” Id. at 82. Rather, Palenik asserted, there are simply limitations respecting microscopy. Id.
Palenik further testified that forensic scientists do not use the word “match” when talking about hair comparisons, and that microscopically similar hair does not permit one to make the leap that the hair samples absolutely came from the same person. Id. at 82-83. He testified that relevant FBI reports contain a warning that “microscopic hair comparison is not a form of exact personal identification.” Id. at 81. Further, he opined that because hair microscopy does not yield mathematical data, as do some other scientific tests, “it needs to be backed up” by the examination of a second hair examiner. Id. at 87. Palenik testified that certain guidelines require such second examination, and that prior to the institution of these guidelines, “the best laboratories” would have followed the practice of using two examiners. Palenik mentioned that as of the date of his 2008 testimony, the City of Houston was rebuilding its crime lab because it only had one hair examiner. Id. From his review of Surma’s records, Palenik could not tell if the comparison microscopy of the hairs taken from the sweater sleeve and those of Appellant, his brother, and the Lunarios was checked by a second scientist. Id. at 88.
In sum, Palenik testified that microscopical hair analysis has value as an investigative tool, but it cannot be used for positive identification. Id. at 90-91. In response to Appellant’s counsel’s direct question, Palenik agreed that microscopical hair analysis can be referred to as “junk science” when it is used to establish physical evidence of guilt without acknowledging the limitations of the science. Id. at 91. *1140 Palenik further testified that he is “anec-dotally aware” of incidents where DNA analysis has established that microscopically similar hair samples do not belong to the same person. He also acknowledged occurrences of the reverse: cases where DNA analysis confirmed that microscopically similar hair samples do belong to the same person. Id. at 92.
(a) Frye Challenge.
Pennsylvania Rule of Evidence 702 allows for the admission of expert testimony where scientific, technical, or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue. Pa.R.E. 702. The Frye test is considered a part of Rule 702 and is used to evaluate novel scientific evidence. Commonwealth v. Dengler, 586 Pa. 54, 890 A.2d 372, 380-81 (2005).
At its core, the Frye test is based on the following principles:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
Dengler, supra at 380-81 (quoting Frye, 293 F. at 1014 ; emphasis added).
“Admissibility of [] scientific evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” Id. at 381 (quoting Commonwealth v. Topa, 471 Pa. 223 , 369 A.2d 1277, 1281 (1977)). Our rationale for this approach to the admissibility of such evidence is as follows:
The requirement of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice. Additionally, the Fnye test protects prosecution and defense alike by assuring that a minimal reserve of experts exists who can critically examine the validity of a scientific determination in a particular case. Since scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen, the ability to produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique, may prove to be essential.
Id. (quoting Topa, supra at 1282 ).
We have also determined, however, that the party desiring to introduce scientific evidence is not required to prove that the scientific community has also generally accepted an expert’s conclusion. “We have never required and do not require such a showing. This, in our view, is the sensible approach, for it imposes appropriate restrictions on the admission of scientific evidence, without stifling creativity and innovative thought.” Grady v. Frito-Lay, Inc., 576 Pa. 546 , 839 A.2d 1038, 1045 (2003). In Grady , we held that Fnye would remain the governing Pennsylvania standard, and rejected adoption of a more recent federal standard represented by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993). Grady, supra at 1044-45 .
Finally:
This Court has made it clear that Frye is not implicated every time science comes into the courtroom; rather, it applies only to proffered expert testimony involving novel science. What consti *1141 tutes novel scientific evidence has historically been decided on a case-by-case basis, and there is some fluidity in the analysis; indeed, science deemed novel at the outset may lose its novelty and become generally accepted in the scientific community at a later date, or the strength of the proponent’s proffer may affect the Frye determination.
Dengler, supra at 382 (citations omitted; emphasis added).
Appellant’s Frye challenge is an attack on the science of microscopy, particularly hair microscopy. In support, he cites a 1995 federal district court decision from Oklahoma that determined that microscopical hair analysis was unreliable and therefore constituted inadmissible evidence. See Williamson v. Reynolds, 904 F.Supp. 1529, 1558 (E.D.Okla.1995). However, Appellant ignores the many jurisdictions that, prior to his 2002 trial, had determined that human hair analysis by microscopical comparison is an accepted and reliable scientific method or technique. 11 Moreover, Appellant fails to mention that Williamson , in significant part, based its holding on the newer federal standard represented by Daubert , which this Court has rejected. Williamson, supra at 1556-58 .
Appellant does acknowledge that at the time of his trial, a Pennsylvania Superior Court decision had determined that microscopical hair analysis met the Frye test and constituted relevant, admissible evidence. Commonwealth v. McCauley, 403 Pa.Super. 262 , 588 A.2d 941 (1991). However, Appellant argues that, because the defendant in McCauley was later able to use DNA evidence in a PCRA proceeding to disprove that the hair at issue belonged to him, the continued vitality of the 1991 decision is questionable. See Appellant’s Brief at 68. The Commonwealth responds that Appellant neglected to mention that the defendant was denied PCRA relief. Commonwealth’s Brief at 48 n. 8.
The remainder of Appellant’s argument is cursory:
A number of cases around the nation have resulted in individuals exonerated on the basis of faulty microscopic hair analysis evidence [citing by footnote to a 2006 law review article]. Given this Court’s dearth of precedent on the issue and the increasingly high error rates using microscopy, trial counsel’s failure to challenge the admission of Surma’s testimony constitutes deficient performance. Reasonable capital counsel would have raised such a challenge.
Appellant’s Brief at 68-69. 12
Appellant’s argument regarding Frye is patently meritless. It is based on one federal district court case that, in turn, based its holding on a federal standard that this Court has specifically rejected. *1142 It ignores the fact that at the time of Appellant’s trial, a vast number of jurisdictions had determined that human hair analysis by microscopical comparison is an accepted and reliable scientific method or technique. In fact, one of those jurisdictions was Pennsylvania. See McCauley, supra. Appellant’s ineffectiveness claim is, moreover, based in large part on alleged events occurring many years after Appellant’s trial, rather than the state of the law at the time of his trial.
We do not discredit the notion, which Appellant appears to advance, that a once-viable science may lose its wide acceptance in the scientific community and may be challenged pursuant to Rule 702. 13 However, Appellant does not provide any support for the view that as of Appellant’s 2002 trial, forensic hair microscopy was no longer an accepted science. In fact, the record establishes just the opposite. Not only does Appellant ignore the evidence given by Surma at trial regarding the scientific basis, acceptance, and reliability of forensic microscopy, limited though it may be, but Appellant also astonishingly ignores the more compelling evidence given by Appellant’s own witness at the PCRA hearing, upon which Appellant heavily relies for his other arguments herein.
At the PCRA hearing, Palenik referred to forensic science as a “real science,” and forensic microscopy as a “recognized science.” N.T. PCRA Hearing, 12/15/08, at 71, 138. He acknowledged that his testimony regarding this science had never been precluded pursuant to Frye. Id. at 138-39. He patiently, and in great detail, explained to the PCRA court how forensic hair microscopy works as a science. Id. at 92-97, 146-54. He observed that side-by-side hair comparison is “done ... objectively.” Id. at 84. He testified that scientists had been comparing hair strands microscopically since approximately the 1880s. Id. at 88, 146. He noted that microscopical hair analysis is performed in crime labs run by the FBI, the Chicago police, and the Houston police. Id. at 87. He confirmed Surma’s description of the science of hair microscopy. See, e.g., id. at 100 (mirroring Surma’s trial testimony that accurate analysis is dependent upon the retrieval of hair from different regions of head).
Thus, Palenik’s PCRA hearing testimony not only shows that hair microscopy is a recognized science, not a novel one, even up to the end of 2008, but his testimony evidences “that a minimal reserve of experts [in this field] exists who can critically examine the validity of a scientific determination in a particular case.” Dengler, supra at 381 (describing one of the principle concerns of Frye). Moreover, Surma had twenty-seven years of experience in forensic microscopy and had previously testified as an expert in microscopic hair analysis on more than 300 occasions. For this reason, the trial court accepted him as a competent expert witness. N.T. Trial, 8/27/02, at 4-6. For a great variety of reasons, Appellant’s underlying Frye issue lacks merit; thus, trial counsel were not ineffective for failing to make a Frye challenge. Accordingly, Appellant’s layered ineffectiveness claim is wholly without merit.
(b) Failure to hire rebuttal expert.
Without citation to the trial record, Appellant asserts that one Commonwealth witness (a state trooper) described Sur-ma’s microscopical hair analysis as “vital to *1143 the case.” Appellant’s Brief at 67. Appellant also asserts that the hair determined to be microscopically similar to Appellant’s hair was the only physical evidence linking him to the crime. Without any mention of the remainder of the Commonwealth’s extensive case against him, Appellant baldly asserts that the hair evidence played “a central role” in Appellant’s case. Id. Without citation to any analogous authority, Appellant asserts that the foregoing assertions establish that trial counsel were ineffective for failing to hire an expert witness to rebut Surma’s testimony.
“Where a claim is made of counsel’s ineffectiveness for failing to call witnesses, it is the appellant’s burden to show that the witness existed and was available; counsel was aware of, or had a duty to know of the witness; the witness was willing and able to appear; and the proposed testimony was necessary in order to avoid prejudice to the appellant.” Commonwealth v. Wayne, 553 Pa. 614 , 720 A.2d 456, 470 (1998). “The mere failure to obtain an expert rebuttal witness is not ineffectiveness. Appellant must demonstrate that an expert witness was available who would have offered testimony designed to advance appellant’s cause.” Id. at 470-71. “Trial counsel need not introduce expert testimony on his client’s behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony. Additionally, trial counsel -will not be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to critically evaluate expert testimony [that] was presented by the prosecution. Thus, the question becomes whether or not [defense counsel] effectively cross-examined [the Commonwealth’s expert witness].” Commonwealth v. Marinelli, 570 Pa. 622 , 810 A.2d 1257, 1269 (2002) (citations and quotation marks omitted).
Focusing on the latter point first, it is beyond peradventure that Appellant’s trial counsel conducted skilled and thorough cross-examination of Surma, as evidenced by our summary of this cross-examination. Appellant’s counsel was able to show not only the weaknesses and limitations of the science of forensic hair microscopy, but also called into question whether the hair collection process — from both the sweater sleeve and from the individuals suspected of being the source of the hair samples found on the sleeve — had been done in accordance with what was required to conduct an accurate and contamination-free hair analysis. As the PCRA court observed, Palenik’s testimony added little more than that established by Appellant’s counsel on his cross-examination of Surma and of the trooper who had collected the relevant hair samples. See PCRA Court Opinion at 73-74.
Appellant disputes the PCRA court’s conclusions. He contends that Palenik’s testimony established, in addition to the evidence derived from the cross-examination of Surma and the trooper, that (1) the “best” practice for hair microscopy is to have a second person review the comparison; (2) there are not necessarily fourteen characteristics used to compare hair samples, as Surma had stated; and (3) Sur-ma’s bench notes were deficient. Appellant’s Brief at 67.
These assertions are hardly a basis for establishing that Appellant’s trial counsel was ineffective for not spending limited financial resources 14 to hire a witness to rebut Surma’s testimony. Moreover, Appellant is not even forthright in his assertions. He incorrectly asserts that it is a fact that a second scientist did not check Surma’s analysis, but Palenik testified that he could not say whether or not this had *1144 occurred. 15 He omits mentioning that Pal-enik testified that a scientist could “write up” characteristics for hair analysis that equaled the number fourteen. 16 He fails to mention that Palenik determined that the bench notes were deficient for purposes of a review of Surma’s methodology and findings, but not for the analysis itself. 17 On the latter point, Appellant neglects to explain how the adequacy of the bench notes was material for the jury’s evaluation, when they heard Surma’s actual testimony. Moreover, Appellant never identified any witness available at the time of trial for possible rebuttal.
Once again, in order to set forth a sufficient ineffectiveness of counsel argument:
[W]e do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis. We will conclude that counsel’s chosen strategy lacked a reasonable basis only if Appellant proves that an alternative not chosen offered a potential for success substantially greater than the course actually pursued- [T]he petitioner must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s ineffectiveness.... [Bjoilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective.
Paddy, 15 A.3d at 442-43 (citations and quotation marks omitted).
In light of these standards, we must conclude that the PCRA court correctly determined that Appellant’s claim of ineffectiveness regarding trial counsel’s failure to hire a rebuttal witness is without merit. Here, because the underlying claim lacks merit, no basis exists to assert an ineffectiveness claim against trial counsel. The ineffectiveness claim against appellate counsel is, accordingly, also without merit.
(c) Prosecutor’s remarks.
Appellant argues that trial counsel was ineffective for having failed to object to isolated remarks made by the prosecutor in both opening and closing statements, and for having failed to request a curative instruction with respect to these remarks. In support of his argument, Appellant selects excerpts from the following opening remarks by the prosecution, which we quote in full:
So [Appellant] gets arrested right then and there. But that’s not the end of the evidence because after the arrest[,] more evidence of [Appellant’s] guilt gets developed. And we come back to the mask. Remember the mask? Well when they have recovered that at the scene[, t]hey took six hairs off it. There were six human hairs on that mask. And you have to remember now this is 1983. They used the only technology that was available for hair analysis at that time[,] which was microscopic comparison.
So they took these six hairs and they compared them against hairs they took from [Appellant], hairs they took from [Martin], remember, he tried it on? And hairs that they had taken from the three deceased: Angelina, Victor and Jimmy. Because they wanted to see if these hairs matched up to any of those people.
So the first hair was inconclusive, which means as the chemist will explain to you[,] it had some characteristics that *1145 were consistent with [Appellant], it had some characteristics that were consistent with [Martin,] and it had some characteristics that were consistent with Victor.
Now the next three hairs — we’re up to four — those three had characteristics that were microscopically similar to Angelina. But the last two hairs, 14 out of 14 microscopic characteristics, conclusion, microscopically the same as [Appellant]. Physical evidence of [Appellant’s] guilt. That’s in 1983.
N.T. Trial, 8/19/02, at 76-78. 18
Appellant highlights the prosecutor’s statement that the two hair strands were “microscopically the same as [Appellant]. Physical evidence of [Appellant’s] guilt.” Id. at 77-78. Appellant contends that these statements misled the jury as to Surma’s later testimony, injecting prejudicial unfairness into the trial. Appellant contends that the misleading statements were repeated during the prosecutor’s closing arguments, which we quote in context, as distinguished from the select phrases picked out by Appellant:
Now, that brings us to George Surma. George Surma — and again, folks, it’s your recollection that counts, but my memory tells me that George Surma said he uses 14 points of comparison. If I’m wrong, forgive me. I thought he said he uses 14 points of comparison. But one thing he said all along in all of these proceedings is there was [sic] six hairs on that mask. He does microscopic comparisons, and two of those hairs, who were they similar to? Who do they microscopically match up to? Only [Appellant]. Right?
Now, he’s got four others, and he says three of them are Angelina and one could be Victor, could be [Martin], could be [Appellant]. And you have to remember, [Martin’s] testimony included the fact that he tried on the mask.
So now you have George Surma telling you that [Martin’s] telling the truth because two of those hairs are microscopically similar not to [Martin], not to the Lunarios, to [Appellant], That’s what he told you. That’s what he always said. I guess he’s part of the conspiracy too. As far as not having enough of [Martin’s] hair or not having [Martin’s] hair from the right parts of the head, once again, it’s your recollection that counts. My recollection says when he was on the stand[,] I asked him did you have enough hair or a sufficient example of hair in order to do that comparison.
Yeah, I did.
If you didn’t, would you ask for more?
Yes, I would.
Please keep your eye on the ball. George Surma, two hairs, [Appellant]. Corroboration.
N.T. Trial, 9/6/02,175-76. 19
Appellant’s argument with respect to this closing testimony is as follows:
In this case, the prosecutor’s closing comments repeatedly misstated Surma’s testimony, misleading the jury into over *1146 valuing the microscopic hair comparison evidence actually presented. In closing, the prosecutor once again used the word “match,” thereby repeating and reinforcing the same improper comments that he made in opening. This repetition only enhanced the scope of the impropriety. No curative instruction was given to blunt the effect of these repeated overstatements. Moreover, the hair evidence at issue was the only alleged physical evidence that in any way connected Appellant to the crime or the crime scene. The prosecutor’s overstatements regarding the value of this sole piece of physical evidence, infected Appellant’s trial with unfairness, thereby making his conviction a violation of due process of law.
Appellant’s Brief at 66.
In dismissing Appellant’s prosecutorial misconduct arguments, the PCRA court first noted that the prosecutor’s opening argument statement that the two relevant hair strands were “microscopically the same,” which was based on Surma’s expert report that described the hair strands in that manner, was an “isolated” statement. As such, the court considered the remark non-prejudicial when viewed in the context of two circumstances. First, the court observed that the jury had been specifically instructed that opening statements are not to be considered as evidence. See N.T. Trial, 8/19/02, at 42; see also Commonwealth v. Ligons, 565 Pa. 417 , 778 A.2d 1231, 1238 (2001) (“[Ajrguments of counsel are not evidence.”). Second, the court observed that Surma’s actual testimony made clear that microscopical hair comparison could at best be considered “microscopically similar.” PCRA Court Opinion at 75.
Regarding the prosecutor’s closing remarks, the PCRA court first considered that such remarks had to be viewed within the context of the entirety of the closing arguments made to the jury. The court observed that Appellant had devoted significant time to criticizing the reliability and methodology of the Commonwealth’s hair comparison evidence, based on Sur-ma’s testimony and that of the state trooper who had collected the hair. See N.T. Trial, 9/6/02, at 54-56, 75-78. The court then observed that the prosecutor’s use of the word “match” in his closing remarks “occurred within the qualifying context of his repeated use of the term ‘similar.’” PCRA Court Opinion at 76. The court determined that the single use of the word “match,” being one fleeting reference within an entire closing argument, did not cause the jury to form a fixed hostility toward Appellant nor prevent the jury from rendering a fair verdict. Id.; see also Commonwealth v. Steele, 599 Pa. 341 , 961 A.2d 786, 832 (2008) (holding that a fleeting reference within the context of an entire closing argument is not prejudicial, citing numerous sources of authority).
In accord with the long-standing principle that a “prosecutor must be free to present his or her arguments with logical force and vigor,” this Court has permitted prosecutorial advocacy “as long as there is a reasonable basis in the record for the [prosecutor’s] comments.” Commonwealth v. Robinson, 581 Pa. 154 , 864 A.2d 460, 516-17 (2004). Prosecutorial comments based on the evidence or reasonable inferences therefrom are not objectionable, nor are comments that merely constitute oratorical flair. (Tedford, 960 A.2d at 33 ). Furthermore, the prosecution must be permitted to respond to defense counsel’s arguments. Id. Any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Robinson, supra at 517 .
It is improper for a prosecutor to offer his or her personal opinion as to the guilt of the accused or the credibility of *1147 any testimony. Commonwealth v. DeJesus, 580 Pa. 303 , 860 A.2d 102, 112 (2004). However, it is well within the bounds of proper advocacy for the prosecutor to summarize the facts of the case and then ask the jury to find the accused guilty based on those facts. See id.
The standard by which the court considers allegations of improper prosecu-torial comments is a stringent one:
Comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a fair verdict.
Tedford, supra at 33 (citation omitted).
We agree with the PCRA court that Appellant is not entitled to relief. With respect to the prosecutor’s opening remarks, the PCRA court correctly identified the flaws in Appellant’s argument. First, as the PCRA court observed, the jury was instructed by the trial court that opening remarks and argument of counsel do not constitute evidence that is to be weighed. “The jury is presumed to have followed the court’s instructions.” Commonwealth v. Flor, 606 Pa. 384 , 998 A.2d 606, 632 (2010). Second, as the PCRA court also observed, the jury heard testimony from Surma regarding the proper evaluation of hair comparison analysis. Moreover, as addressed previously, Appellant mounted a vigorous and extensive cross-examination of Surma with respect to his scientific conclusions. In light of these factors, we must conclude that the prosecutor’s isolated opening argument remark is of little consequence.
With respect to the prosecutor’s closing remarks, we conclude that Appellant’s characterization of them is facially incorrect and Appellant’s assertions of prejudice grossly overstated. First, our review of the prosecutor’s closing remarks in their entirety establishes that the prosecutor did not “repeatedly misstate[ ] Surma’s testimony, misleading the jury into overvaluing the microscopic hair comparison evidence actually presented.” Appellant’s Brief at 66. The prosecutor’s remarks do not contain “repeated misstatements.” In fact, the prosecutor used the terms “similar” and “microscopically similar,” and, as the PCRA court observed, used the term “match,” which Appellant now objects to, within the context of describing comparison on the basis of similar components. N.T. Trial, 9/6/02, 175. In light of the detailed testimony provided by Surma on direct and cross-examinations, the prosecutor’s fleeting remark concerning whether the microscopical comparison of similar features “matches up to” Appellant is wholly insufficient to support Appellant’s claims. See, e.g., Steele, supra at 832. Moreover, Appellant’s allegation that the jury connected the prosecutor’s use of the term “match” in opening statements to his use of the term “match” in closing remarks, after a three-week trial involving numerous witnesses and concepts, and, as a result, became confused, prejudiced, or biased against Appellant, is one deserving of no credence whatsoever.
Further, the prosecutor’s final closing remarks on this subject'(“Please keep your eye on the ball. George Surma, two hairs, [Appellant]. Corroboration.” N.T. Trial, 9/6/02, 176) need not necessarily be viewed as a misconstruing of Surma’s testimony. Appellant has brought forth nothing that suggests that the jury was incapable of fitting these remarks within the context of Surma’s testimony. In short, Appellant does not establish that the prosecutor’s closing remarks constitute misconduct. Moreover, even if these remarks could be viewed in no other light, Appellant does not establish, but simply asserts, that these remarks had the unavoidable effect *1148 of prejudicing the jury, forming in their minds a fixed bias and hostility toward Appellant such that they could not weigh the evidence objectively and render a fair verdict.
Because none of Appellant’s assertions of prosecutorial misconduct during opening and closing arguments have merit, Appellant cannot satisfy the arguable merit prong of the Pierce test for ineffective assistance of trial counsel. Because trial counsel were not ineffective, Appellant’s derivative claims of appellate counsel ineffectiveness also must fail.
5. Were trial and appellate counsel ineffective for failing to properly raise and preserve the following issues: a) trial court error for allowing the Commonwealth to cross-examine Appellant with information derived from Attorney Kennedy’s testimony at a prior PCRA hearing[;] b) trial court error for allowing the Commonwealth to utilize Appellant’s post-arrest statement; c) trial counsel ineffectiveness for failing to object promptly and request a curative instruction and mistrial in response to the Commonwealth’s improper and prejudicial questioning of Julie Maconeghyt;] and d) trial court error in denying a motion for change of venire and venue and appellate counsel’s ineffectiveness for failing to raise this issue?
The four issues raised hereunder are related only by the fact that they were all previously litigated and disposed of on direct appeal or, with respect to the final issue, raised at trial, but then waived for failure to pursue on post-verdict motions and appeal. Appellant raises these claims principally in the guise of ineffectiveness of appellate counsel for failing to provide adequate stewardship in advocating these claims. Appellant also contends, generally: “To the extent trial counsel failed to effectively object to these errors, trial counsel was ineffective. To the extent direct appeal counsel failed to raise these issues under state and federal law, appellate counsel was ineffective.” Appellant’s Brief at 80. 20 The PCRA court simply determined that Appellant’s first three claims were previously litigated and further held that the last claim was meritless. PCRA Court Opinion at 93-95.
a) Cross-examination of Appellant
A full background regarding this issue may be found in Chmiel III, 889 A.2d at 525-28 . Briefly, this issue is rooted in the events that secured Appellant a third trial. During his second trial, Appellant was cross-examined by the prosecutor with respect to Appellant’s direct-examination testimony that he had not been at or near the Lunario house on the night of the murders and had never told anyone anything to the contrary. In an attempt to impeach this testimony, the prosecutor asked Appellant to confirm or deny the fact that he had told his first trial counsel two conflicting stories regarding his activities and whereabouts on the night of the murders. One of those stories was that he was actually outside the Lunario house on the night of the murders in order to “case it.” There, he saw a person who appeared to resemble his brother, Martin, run down an alley by the Lunario house, and get in a car. Evidence that Appellant had told this story to counsel came from counsel’s testimony at a 1988 PCRA hearing. On direct appeal from Appellant’s second conviction, *1149 this Court determined that the prosecutor’s cross-examination of Appellant on this evidence prejudicially implicated Appellant’s rights to effective assistance of counsel and freedom from self-incrimination, as well as the attorney-client privilege. 21 Commonwealth v. Chmiel, 558 Pa. 478 , 738 A.2d 406, 423-24 (1999) (“Chmiel II”).
Prior to Appellant’s third trial, the Commonwealth sought permission to use the transcript of the Commonwealth’s cross-examination of Appellant from his second trial, should Appellant testify and again state that he had not been at or near the Lunario house at the critical time. In order to avoid the prejudicial error found in Chmiel II, the Commonwealth indicated that it would redact any mention of Appellant’s first trial attorney. The trial court permitted the Commonwealth to proceed in this manner with the understanding that if Appellant had told the story of seeing a person resembling Martin at the scene to anyone other than his counsel or other person with whom communications are privileged, then Appellant should be subject to cross-examination.
At Appellant’s third trial, Appellant denied being at the scene of the murders, and on cross-examination, the prosecutor asked him whether it was true that during a particular period of five months, he had told a different story. 22 Appellant denied the prosecutor’s assertions.
On direct appeal, Appellant argued that the trial court had erred by permitting such cross-examination, as it effectively circumvented the holding of Chmiel II. We agreed that the trial court had abused its discretion by allowing the Commonwealth to cross-examine Appellant in the manner described, based on our rationale in Chmiel II. However, we further determined that the trial error was harmless because prejudice to Appellant, if any, was insignificant and de minimis. Chmiel III, supra at 528-29.
In his present argument, Appellant asserts that his counsel on direct appeal were ineffective because “they failed to make a critical legal argument: the reasonable possibility that the error may have contributed to the verdict.” Appellant’s Brief at 74. Appellant cites no authority in support of this claim.
However, this Court in Chmiel III fully reviewed the ramifications of the trial court error, and we specifically concluded that such error “could not have contributed to the verdict.” Id. at 529. Appellant’s present undeveloped argument was previously litigated, and, as such, provides no basis for relief under the PCRA. 42 Pa. C.S. § 9543(a)(3).
b) Post-arrest statement
Again, a fuller background concerning this issue may be found in Chmiel III, supra at 529-31. Briefly, this issue pertains to post-arrest, post-Miranda statements made by Appellant to State Trooper Gerald Gaetano prior to Appellant’s invoking his right to remain silent. Trooper Gaetano asked Appellant where was he “last Tuesday night.” Appellant responded that he was at home watching television with his wife. When questioned further concerning his whereabouts “last Tuesday night,” Appellant replied: “I don’t think I better talk about that.” Id. *1150 at 529 (quoting N.T. Trial, 8/28/02, at 169, 173; and Dkt. Entry No. 407, at 1).
Appellant averred on direct appeal and in his present PCRA petition that when he answered the trooper’s first inquiry, he believed he was talking about Tuesday, September 27, 1983, which was one week after the murders. Appellant further avers that when the trooper inquired further, Appellant believed that the question concerned Tuesday, September 20, 1983, the day of the murders. At that point, Appellant invoked his right against self-incrimination. See id. n. 21; Appellant’s Brief at 75.
The trial court had limited the Commonwealth’s questioning of Trooper Gaetano to only those statements made by Appellant prior to Appellant’s having invoked his right to remain silent. Accordingly, Trooper Gaetano’s testimony was limited to conveying Appellant’s assertion that he was at home watching television with his wife “last Tuesday night.” On cross-examination by Appellant’s counsel, Trooper Gaetano admitted that he was unsure of the Tuesday evening to which Appellant was referring. On redirect examination, the Commonwealth attempted to question the trooper further on this issue, but the trial court sustained Appellant’s objection to such line of questioning. Chmiel III at 530.
On direct appeal, Appellant argued that he was prejudiced by the trial court’s admission of the statement of Trooper Gaeta-no. Appellant contended that for him to have clarified the confusion arising from the trooper’s statement regarding the Tuesday night that Appellant believed the trooper was asking about, he would have been forced to disclose to the jury the fact that he had exercised his right against self-incrimination. Appellant argued that, in sum, the waiver of his constitutional rights far outweighed the probative value of Trooper Gaetano’s testimony. Id.
We considered and rejected Appellant’s argument, holding:
Appellant sought and won a prohibition of any reference to statements made after he invoked his rights. He cannot now challenge that ruling on the basis that he was somehow prejudiced by it. A party in a criminal proceeding cannot argue for a specific ruling and then, after obtaining a favorable ruling, claim that the trial judge committed an error of law in making it. Appellant had the opportunity to clarify the matter through the cross-examination of Trooper Gaetano and it was not an abuse of discretion to permit Appellant’s post-Mi randa statement, made prior to his invocation of the right to remain silent because the statement was relevant, was not prejudicial, and did not violate any constitutional right.
Id. at 530-31 (citation omitted).
In his present PCRA argument, Appellant contends that appellate counsel were ineffective for purportedly having only raised this issue as a violation of the Pennsylvania Rules of Evidence rather than also as due process and Fifth Amendment violations. Appellant cites authority supporting his Fifth Amendment claim, and provides what he contends is evidence of the jury’s confusion. That evidence consists of the fact that during guilt-phase deliberations, the jury requested information from the court as to whether there were any police reports respecting the questioning of Appellant from the time of his arrest until he was transferred to the state police barracks. See N.T. Trial, 9/7/02, at 85. The court and the attorneys for Appellant and the Commonwealth interpreted this request as related to Trooper Gaetano’s testimony. Id. at 86-91. Appellant argues, without any analysis to back up this assertion, that had appellate counsel raised due process and Fifth *1151 Amendment arguments, “there is a reasonable possibility that relief would have been secured.” Appellant’s Brief at 77.
In response, the Commonwealth cites Appellant’s brief on direct appeal and quotes that portion of the brief wherein Appellant does raise a Fifth Amendment violation argument in connection with his claim that the trial court erred by admitting Trooper Gaetano’s testimony. Commonwealth’s Brief at 50. We have reviewed Appellant’s direct appeal brief and have confirmed that, indeed, Appellant did argue prejudice rooted in his right against self-incrimination. Appellant’s Direct Appeal Brief, filed at No. 428 CAP, dated April 16, 2004, at 44. We noted this argument in Chmiel III, supra at 530. In fact, Appellant’s direct appeal argument is plainly concerned with the idea that a clarification of Trooper Gaetano’s testimony would have required Appellant to waive “a constitutionally recognized right.” Appellant’s Direct Appeal Brief at 44 n. 22. Thus, Appellant’s present contention that appellate counsel were ineffective for having failed to argue prejudice to Appellant’s constitutional rights is based on assertions not supported by appellate counsels’ actual advocacy of this issue, and, in fact, is belied by appellate counsels’ actual advocacy.
In Chmiel III, we plainly rejected Appellant’s Fifth Amendment argument and further held that the admission of Trooper Gaetano’s statement “did not violate any constitutional right.” Id. at 531. Accordingly, we agree with the PCRA court’s conclusion that Appellant’s Fifth Amendment claim was previously litigated, and we further hold that Appellant’s “new,” underdeveloped due process claim lacks merit. Accordingly, no ineffectiveness claims may successfully be based on the due process claim.
c) Questioning of Julie Maconeghy
On direct appeal, Appellant raised an issue of trial counsel ineffectiveness with respect to counsel’s advocacy regarding the testimony of Appellant’s ex-wife, Julie Maconeghy. Appellant argued that the Commonwealth’s impeachment questioning of Maconeghy “was improper, prejudicial, inadmissible, and amounted to prosecutorial misconduct. Appellant therefore argue[d that] trial counsel was ineffective for failing to preclude the testimony.” Id. at 542. We rejected Appellant’s argument, holding that there was no prosecutorial misconduct and that Appellant’s trial counsel’s advocacy on this matter constituted effective performance in furtherance of Appellant’s interests. Id. at 542-43.
In his PCRA claim, Appellant contends once again that trial counsel was ineffective for having failed to preclude the Ma-coneghy testimony at issue by not “securing] a pretrial rule barring this line of questioning, objecting] immediately when the question began, or moving] for a mistrial.” Appellant’s Brief at 78. He further argues that appellate counsel was ineffective for having failed to argue an underlying due process violation and standards for capital cases falling under the Eighth and Fourteenth Amendments. Id. Once again, Appellant does not develop his argument further.
It is quite apparent that appellate counsel did raise due process concerns in their argument on direct appeal, and Appellant sets forth no basis regarding why our holding in Chmiel III would have been any different had appellate counsel intoned the words “Eighth and Fourteenth Amendments,” which is nothing more than what Appellant is doing at this juncture. Appellant’s argument is patently without merit; the issue was previously litigated, and, accordingly, no PCRA relief is due. 42 Pa. C.S. § 9543(a)(3).
*1152 d) Change of venire or venue
In his final claim set forth under this issue, Appellant ai'gues that appellate counsel was ineffective for having failed to raise an issue regarding the trial court’s denial of Appellant’s pre-trial request for a change of venue or a change of venire. After citing to cases holding that, as a general rule, due process requires that a jury consider evidence only developed at trial and not matters from external sources, Appellant makes the following argument, which we quote in its entirety:
In this case, Appellant was accused of the brutal murders of three elderly persons in a highly publicized crime. Appellant had been tried and sentenced to death twice before in Lackawanna County. The Commonwealth had utilized highly prejudicial aggravating evidence, which had been reported in the local media, at the penalty phases of both prior trials. Appellant also had a PCRA hearing in Lackawanna County. Due to the amount of media coverage of this case and the extensive time period over which the case had been subject to publicity, voir dire — especially voir dire by written questionnaire — was insufficient to root out possible prior information venire persons had heard about Appellant’s case. Post-sentence and appellate counsel were deficient for not raising this issue, as it had been preserved on the record by trial counsel. There is no reasonable strategic basis for failure to raise on appeal a meritorious issue preserved by trial counsel. Because of the unique procedural history of this case, there is a reasonable probability that this Court would have granted relief on a venue/venire claim on appeal. Prior counsel’s failure to raise this claim was prejudicial.
Appellant’s Brief at 79.
Regarding a request for a change of venue/venire, we have held:
A request for a change of venue or venire is addressed to the sound discretion of the trial court, which is in the best position to assess the atmosphere 6f the community and to judge the necessity of the requested change. Absent an abuse of discretion, the trial court’s decision will not be disturbed.
A change of venue becomes necessary when the trial court determines that a fair and impartial jury cannot be selected in the county in which the crime occurred. [The defendant] argues that the trial court should have made such a determination in the present case, as the case, involving as it did the heinous death of an 8-year-old child, was extremely newsworthy in the New Castle area. Ordinarily, however, a defendant is not entitled to a change of venue unless he or she can show that pre-trial publicity resulted in actual prejudice that prevented the impaneling of an impartial jury. The mere existence of pretrial publicity does not warrant a presumption of prejudice.
There is an exception to the requirement that the defendant demonstrate actual prejudice. Pre-trial publicity will be presumed to have been prejudicial if the defendant is able to prove that the publicity was sensational, inflammatory, and slanted toward conviction, rather than factual or objective; that such publicity revealed the defendant’s prior criminal record, if any, or referred to confessions, admissions, or reenactments of the crime by the defendant; or that it was derived from official police and prosecutorial reports. Even if the defendant proves the existence of one or more of these circumstances, a change of venue or venire is not warranted unless he or she also shows that the pre-trial publicity was so extensive, sustained, and pervasive that the community must be deemed to have been *1153 saturated with it, and that there was insufficient time between the publicity and the trial for any prejudice to have dissipated.
Commonwealth v. Karenbauer, 552 Pa. 420 , 715 A.2d 1086, 1092 (1998) (citations omitted); see also Commonwealth v. Briggs, 608 Pa. 430 , 12 A.3d 291, 314 (2011) (“[T]he pivotal question in determining whether an impartial jury may be selected is not whether prospective jurors have knowledge of the crime being tried, or have even formed an initial opinion based on the news coverage they had been exposed to, but, rather, whether it is possible for those jurors to set aside their impressions or preliminary opinions and render a verdict solely based on the evidence presented to them at trial.”).
As is readily apparent from Appellant’s cursory argument, Appellant does not even attempt to meet the requirement of demonstrating actual prejudice or proving the exception to actual prejudice. Appellant cites to nothing in the record, including the extensive record of the voir dire, which was held from August 5-9 and 12-15, 2002. Because of this wholesale deficiency, Appellant fails to demonstrate that a significant number of potential jurors had formed a fixed bias against Appellant as a result of news reports or other information. See, e.g., Briggs, supra at 316-17 . Indeed, Appellant’s contentions are nothing more than “boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice^ which] cannot satisfy a [PCRA] Petitioner’s burden to prove that counsel was ineffective.” Paddy, 15 A.3d at 443 .
By contrast, the PCRA court examined in detail the voir dire and trial records. This examination showed, as confirmed by our review, “that only two of the twelve jurors who issued the verdicts in this case recalled reading or hearing some information about the Lunario murders, and both of those jurors confirmed that they would set aside and disregard whatever they may have heard or read about in this case.” PCRA Court Opinion at 94 (citing to the voir dire notes of testimony). The PCRA court further noted that neither the defense nor the Commonwealth was required to utilize all of their available twenty peremptory challenges each in order to select the jury, such was the limited impact of pre-trial publicity. Id.
The PCRA court also correctly determined to be relevant to this issue the fact that each juror, upon selection and at the outset of the trial, was admonished to refrain from reading, viewing, or otherwise being attentive to any media reports or other outside information regarding the case and trial. In fact, on each day of the trial, the jury was directly asked whether any juror had read, seen, or heard any news reports or other outside information regarding the case or trial or had had discussions with any persons concerning the case or trial. Id. at 94-95 (citing to trial record). Our review shows that no juror had stated that he or she had been exposed to such outside information.
In Briggs , a capital case, we observed that of the twelve jurors who were finally selected to serve on the jury, only four had not read anything about the case or heard any reports about it on radio and television. However, of those jurors who had been exposed to media coverage, none indicated that their exposure had caused them to form fixed, unchanging opinions of the defendant’s guilt. None indicated that their exposure would interfere in any way with their ability to render a verdict based solely on the evidence presented in court. Based on such a record, together with the fact that a significant number of potential jurors had not formed a fixed bias against the appellant due to news reports or other information, and the fact that a one year and nine-month span between the murder *1154 and trial had lessened the publicity and its impact, we held that the trial court had not abused its discretion by denying the appellant his request for a change of venue. Id. at 316-18; see also Commonwealth v. Crews, 536 Pa. 508 , 640 A.2d 395, 398-99 (1994) (holding that even where there is inflammatory pre-trial publicity, an adequate cooling-off period between the publication of such material and the trial, which in Crews was six to eight months, together with the trial court’s exercise of its discretion to evaluate bias and impartiality during voir dire, sufficiently supported the trial court’s conclusion that pre-trial publicity did not prevent the capital defendant from receiving a fair trial by an impartial jury).
Here, nineteen years after the murders, Appellant was tried by a jury that included only two individuals who had ever heard of the murders. Moreover, this jury consisted of jurors who avowed under oath and penalty of perjury that they had no preconceived or fixed opinion of Appellant’s guilt and that they could decide the case based solely on the trial evidence. Based on these circumstances, and in the absence of any meaningful countervailing argument, we agree entirely with the PCRA court that Appellant’s ineffectiveness claim against appellate counsel on the issue of a change of venire or venue is without merit.
6. Is Appellant entitled to relief from his conviction because of numerous errors relating to the Commonwealth’s introduction of inadmissible, unreliable mitochondrial DNA evidence[;] and was defense counsel ineffective for failing to seek exclusion of this evidence, rebut an inference of guilt arising from the evidence[,] and object to the prosecutor’s misrepresentation to the jury concerning this evidence?
This multi-tiered layered ineffectiveness claim is rooted in Appellant’s pre-trial motion, made prior to his third trial, for DNA testing of the two hair strands that were identified by Surma through forensic microscopy as microscopically similar to Appellant’s hair, but not microscopically similar to the hair of his brother Martin or any of the murder victims. See Issue 4. The trial court granted Appellant’s motion, and mitochondrial DNA testing was performed on the two hair strands, as well as other hair strands and the sweater sleeve on which they were found, at a laboratory mutually chosen by Appellant and the Commonwealth. The trial court’s order granting Appellant’s motion also compelled Martin and Thomas Buffton to surrender hair samples for mitochondrial DNA testing. Also tested were blood samples from Appellant, Martin, and Buffton. The testing occurred in 2000 or 2001.
In his opening remarks at trial, Appellant’s counsel commented upon the inconclusiveness of the DNA results. Counsel stated that no complete DNA profile could be derived from the samples, and the partial profiles showed only that, of all of the numerous possible matches, Appellant could not be excluded as a source. However, counsel also observed that Appellant’s brother, Martin, could also not be excluded as a source, nor could any of their siblings. Counsel further commented upon the fact that the Chmiels matched only one of the many possible profiles detected, and quoted the laboratory report stating that no meaningful database searches could be performed on the complex mixtures observed. N.T. Trial, 8/19/02, at 129-30.
At trial, the Commonwealth called to testify one of the laboratory’s testing scientists, Kimberlyn Nelson, Ph.D. Dr. Nelson received her doctorate from Harvard University, taught human genetics at Penn *1155 State University, and had testified in numerous jurisdictions as a mitochondrial DNA expert. She first explained that nuclear DNA is different for each individual (except in the case of identical twins) because half of such DNA comes from the mother and the other half comes from the father. Mitochondrial DNA, by contrast, is inherited only from the mother, meaning that all persons having the same maternal relative will have common mitochondrial DNA. When there is a matching profile with mitochondrial DNA, the result is that the person whose mitochondrial DNA matches the profile cannot be excluded as a contributor of the subject DNA. However, it cannot be scientifically established through such testing that the tested sample came from any specific individual. N.T. Trial, 8/29/02, at 151-57.
Dr. Nelson then explained the process of mitochondrial DNA analysis, which ultimately includes a comparison with known DNA samples and, when possible, a statistical analysis that searches the available DNA database. A profile can range from the extremely rare to the most common profile, which occurs in six to seven percent of the individuals in the database, meaning that ninety-four percent of the population could be excluded from the most common profile. Id. at 157-59.
Regarding the two hair strands at issue, Dr. Nelson testified that her analysis showed that Thomas Buffton and Angelina Lunario could be excluded as possible contributors, but that Appellant and Martin could not. Five other hair strands that were tested excluded Appellant, Martin, and Buffton as possible contributors; however, Angelina Lunario and her maternal relatives could be possible contributors. Id. at 165-68.
Appellant’s counsel subjected Dr. Nelson to vigorous cross-examination. Dr. Nelson testified on cross-examination that no database search was possible with respect to the DNA found in the two hair strands at issue because of a mixture of profiles found in those hair strands. Id. at 172-78. She further noted that approximately 140 mitochondrial DNA profiles were detected in these two hair strands following testing. 23 Id. at 178. Central to Appellant’s current argument, and prompted by Appellant’s counsel’s leading question, Dr. Nelson testified that 140 profiles could theoretically mean that one could not exclude 140 people as possible contributors to the DNA profiles. Id. at 174-75. Again, however, Dr. Nelson testified that the mitochondrial DNA testing could not identify Appellant as the contributor; rather, the testing could only exclude or include Appellant. Id. at 177-78.
During closing arguments, Appellant’s counsel first attacked the weight of Dr. Nelson’s testimony, noting that the profile that included the Chmiel siblings was, as Dr. Nelson had testified, only one of many possible profiles. Further, Appellant’s counsel, commenting on the fact that there were 140 recognizable profiles detected from the testing of the two hair strands, correctly argued that one profile could mean entire families, so that the total number of potential contributors to the DNA could be in the thousands. Alternatively, Appellant’s counsel asserted that Dr. Nelson’s testimony supported the defense theory that the actual murderer was Martin because he could not be excluded as a contributor of the two relevant hair strands. Counsel stated: “We have submitted to you right along that when it comes to that choice, we submit the finger *1156 points to Martin Chmiel, not [Appellant].” N.T. Trial, 9/6/02, at 79-81.
In response, the Commonwealth argued the following:
Now, that brings us to Dr. Nelson. And lo and behold[,] Dr. Nelson takes those two hairs, and as she explained to you, those two hairs, and as she explained to you, those two hairs end up as three samples.... Those two hairs, one had four possible contributors, one had six possible contributors, one had 128 possible contributors.... But every time, every time those two hairs, no matter how many contributors are possible — four, six[,] or 128 — every time[,] who is one of them? That [Appellant]. Now, of course, the same with [Martin] because it’s the same thing. But corroboration. George Surma says these two hairs here, [Appellant],
Dr. Nelson: these two hairs here, [Appellant] or any of his brothers or sisters. Corroboration.
Id. at 176-77.
In his current PCRA argument, Appellant claims that trial counsel were ineffective for failing to (1) seek the exclusion of Dr. Nelson’s testimony pursuant to Frye ; (2) consult with an independent DNA expert regarding Dr. Nelson’s anticipated testimony; (3) object to Dr. Nelson’s testimony with respect to the possibility that 140 profiles were the equivalent of 140 persons; and (4) object to the prosecutor’s characterization of Dr. Nelson’s testimony during closing arguments. Again, Appellant asserts appellate counsel were ineffective for their failure to explore and timely raise these ineffectiveness claims.
In support of his claims, Appellant presented the PCRA testimony of Laurence D. Mueller, Ph.D., a professor at the University of California, Irvine, who has taught classes in genetics and statistics. Appellant here emphasizes certain aspects of Dr. Mueller’s testimony. First, Dr. Mueller testified that it was generally accepted within the scientific community that, as with samples tested by Dr. Nelson, when a scientist discovers a mixture of profiles, the results should be reported as inconclusive. Further, in contrast to Dr. Nelson’s testimony, Dr. Mueller testified that mitochondrial DNA test results should be accompanied by statistics showing the likelihood of a random match to someone in the general population, relying on a 1992 scientific report. Dr. Mueller opined that it was possible to conduct a valid statistical analysis when dealing with a mixture of profiles, in contrast to Dr. Nelson’s differing testimony on this subject. Using statistical analysis, Dr. Mueller determined that the mixed profiles for one of the two hair strands at issue, for example, could be found in one in six Caucasians, one in fifty-nine African-Americans, and one in thirty-eight Hispanics. Dr. Mueller attacked as inaccurate Dr. Nelson’s purported testimony that 140 profiles represented 140 individuals, and opined that including Appellant’s profile in the results from the two hair strands was also inaccurate. Appellant’s Brief at 89.
The Commonwealth presented rebuttal PCRA testimony from Terry Melton, Ph. D., a colleague of Dr. Nelson and the director of the laboratory where the mitochondrial DNA testing had occurred, and the co-author with Dr. Nelson of the laboratory’s report. Dr. Melton reaffirmed Dr. Nelson’s reasons why no statistical analysis was performed on the mixed profile results, noting that evidence of an inclusion within a profile without an accompanying statistical analysis was actually the more conservative approach and one less incriminating to a defendant. N.T. PCRA Hearing, 2/3/09 p.m., at 8-10, 56. She admitted, however, that Dr. Nelson’s purported statement that 140 profiles coincided with 140 individuals was inaccurate. Id. at 31. As the PCRA court noted, *1157 however, Dr. Nelson had placed such purported false statement into context with her testimony that the number of DNA profiles gleaned from the two hair strands was not actually 140, but closer to 20. Id. at 49-51; PCRA Court Opinion at 89.
The PCRA court denied Appellant’s Frye challenge on several grounds. 24 The court noted that Dr. Mueller had testified that he was not criticizing Dr. Nelson’s methodology, only her results. PCRA Court Opinion at 90 (quoting N.T. PCRA Hearing, 12/16/08, at 64). Additionally, without clearly so stating, the PCRA court appeared to give Dr. Mueller’s other testimony little credence or credibility. This is because Dr. Mueller, who has apparently frequently been used as an expert DNA witness for the defense in several jurisdictions over the years, has been an unsuccessful witness for Frye challenges because courts have determined that he actually represents a minority point of view within the scientific community regarding DNA analysis, perhaps even a solitary point of view. Id. at 84-86. This criticism included at least one determination that the 1992 study invoked by Dr. Mueller in his instant PCRA testimony is no longer accepted within the scientific community. Id. at 86. 25
The PCRA court also heavily relied on this Court’s decision in Crews, 640 A.2d at 399-403 . In Crews , we rejected a Frye challenge, similar to that now made by Appellant, regarding nuclear DNA evidence, but not mitochondrial DNA evidence. As the PCRA court noted, we relevantly held:
Appellant objects to presentation of the physical portion of the analysis without a statistical analysis to sharpen the focus of the evidence, arguing that the physical test results are meaningless without statistical conclusions. We disagree. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact. The factual evidence of the physical testing of the DNA samples and the matching alleles, even without statistical conclusions, tended to make appellant’s presence more likely than it would have been without the evidence, and was therefore relevant. To be relevant, evidence need not be conclusive. Asked to evaluate the meaningfulness of evidence of a DNA match without an accompanying statement of statistical probability, appellant’s DNA expert likened such testimony to testimony that “I saw a blue Chevrolet run over this dog.” Identifying the car as a blue Chevrolet does not specifically identify the offending car, but it is useful, admissible identification evidence. In the same way, the relevant, though inconclusive, DNA evidence was admissible in this case; its weight and persuasiveness were properly matters for the jury to determine.
Crews, supra, at 402-03 (internal citations and some quotation marks omitted; emphasis added).
*1158 Based on our holding, the PCRA court here determined that “the only appellate authority in this Commonwealth addressing the admissibility of DNA evidence without statistical analysis has held that such statistical proof is unnecessary.” PCRA Court Opinion at 89 (citing Crews, supra at 402-03 ). The court further noted that “[t]he governing standard for admission [into evidence] is relevancy,” and because the mitochondrial DNA evidence in this case made an issue of fact more or less probable or supported a reasonable inference regarding the existence of a material fact, the mitochondrial DNA evidence was relevant and admissible pursuant to Frye. Id. Accordingly, the court concluded that trial counsel was not ineffective for failing to raise a Frye challenge. Id.
Regarding Appellant’s next claim that trial counsel was ineffective for having failed to retain an independent DNA expert at trial to rebut Dr. Nelson’s trial testimony, the court concluded that had Appellant requested additional funds to hire such a witness, the trial judge (who was also the PCRA judge) would have denied Appellant’s request. First, the court noted that at his request, Appellant had been furnished with public funds for DNA testing of the hair strands. Second, Appellant had agreed to have the testing conducted by Dr. Nelson and her laboratory. Third, Appellant has never argued that trial counsel was ineffective for retaining this laboratory. Fourth, “the credible evidence established [at the PCRA hearing] by [Appellant’s lead] trial counsel,” showed that trial counsel actually did consult with another DNA expert in preparing for cross-examination of Dr. Nelson. Id. at 90-91.
Regarding Appellant’s claim that trial counsel was ineffective for having failed to object to Dr. Nelson’s testimony that 140 profiles were possibly the equivalent of 140 persons, the PCRA court observed that Appellant has not established any prejudice resulting from this testimony. The court noted that trial counsel accurately stated during closing argument that Dr. Nelson’s references to 140 profiles meant that thousands of people could be included within these profiles. Even in the absence of Dr. Nelson’s reference, it is unlikely that the verdict would have been different given the abundance of other incriminating evidence, particularly Appellant’s own testimony. Id. at 91-92.
Finally, regarding Appellant’s claim that trial counsel was ineffective for having failed to object to purported prosecutorial misconduct during the Commonwealth’s closing remarks involving Dr. Nelson’s testimony, the PCRA court determined that Appellant had failed to carry his burden of proving that the prosecutor’s remarks had the unavoidable effect of forming a fixed bias or hostility against him. The court based its conclusion on both Appellant’s own strong advocacy during opening and closing arguments on the issue of the DNA evidence and the trial court’s cautionary instructions regarding the fact that opening and closing arguments are not evidence. Id. at 92-93.
In his present argument, Appellant criticizes the PCRA court’s determinations in several aspects, none of which we find persuasive. Appellant contends that, despite Dr. Mueller’s statement that he was not criticizing Dr. Nelson’s methodology, the sum of his testimony regarding Dr. Nelson’s failure to apply a statistical analysis was, in fact, a criticism of Dr. Nelson’s methodology. Appellant appears to assert that the PCRA court was obligated to accept Dr. Mueller’s testimony as a credible alternative to Dr. Nelson’s approach, and in a footnote, wholly unsupported by authority, Appellant asserts that the PCRA court should not have considered *1159 the criticism and rejection of Dr. Mueller’s testimony by other courts. Appellant’s Brief at 97 n. 30. Additionally, without even attempting to address the full holding of Crews, supra, that the PCRA court quoted and relied upon, Appellant asserts that Crews is inapplicable because of the distinctions between nuclear and mitochondrial DNA, based, again, on Dr. Mueller’s emphasis on the need to apply a statistical analysis. Again, Appellant ignores the fact that the PCRA court apparently found Dr. Mueller’s testimony on this point less than persuasive.
Regarding the issue of whether Appellant’s trial counsel should have consulted an independent expert in order to rebut Dr. Nelson’s testimony, Appellant asserts that the PCRA court should not have relied upon the “hazy [PCRA hearing] recollection” of trial counsel Ackourey in making this finding. Rather, Appellant asserts that the PCRA c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4965037. Public record. Not legal advice.