Com. v. Brown, R.

J-S04040-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RAHEEM BROWN :

:

Appellant : No. 975 EDA 2021

Appeal from the PCRA Order Entered May 5, 2021

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

No(s): CP-51-CR-0010356-2013

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 10, 2022

Raheem Brown appeals from the May 5, 2021 order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

The PCRA court summarized the relevant facts and procedural history

of this case as follows:

On June 11, 2013, [Appellant] was arrested and

charged with second degree murder, conspiracy,

burglary, robbery and [carrying a firearm without a

license], in connection with the robbery and shooting

death of Rush Thompson [“Thompson”]. From May 5

to May 15, 2015, [Appellant] and his co-defendant

Emmanuel Duran were tried before this Court in the

presence of a jury. [Appellant] was represented by

Michael Huff, Esquire. On May 15, 2015, the jury

found [Appellant] guilty of all charges. That same day,

this Court sentenced him to the mandatory sentence

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S04040-22

of life imprisonment without the possibility of parole

on the second-degree murder charge, 20 to 40 years

state incarceration on conspiracy, 10 to 20 years state

incarceration on robbery, 10 to 20 years state

incarceration on burglary, and 3½ to 7 years state

incarceration on [carrying a firearm without a license].

All of the terms were to run concurrently with one

another. [Appellant] filed a post-sentence motion for

reconsideration on May 22, 2015. This was denied by

operation of law on September 30, 2015. On October

1, 2015, [Appellant] filed a Notice of Appeal to the

Superior Court; the Superior Court affirmed his

judgment of sentence on December 28, 2016. On June

27, 2017, the Pennsylvania Supreme Court denied

[Appellant’s] petition for allowance of appeal.[1]

On July 14, 2017, [Appellant] filed the instant first and

timely pro se PCRA petition. On January 19, 2018,

[Appellant] filed a pro se Amended Petition. On

March 15, 2018, George Yacoubian, Esquire was

appointed as PCRA counsel. On August 3, 2018,

[Appellant] filed a motion to proceed pro se. On May

8, 2019, this Court conduced a Grazier2 hearing and

permitted [Appellant] to proceed pro se. On June 28,

2019, [Appellant] filed a pro se supplemental

petition. On July 15, 2019, [Appellant] retained Teri

Himebaugh, Esquire as private counsel. On November

11, 2019, Ms. Himebaugh filed an Amended Petition.

On February 20, 2020, she filed a Supplemental

Petition. On December 16, 2020, the Commonwealth

filed its Motion to Dismiss. On April 5, 2021, this Court

sent [Appellant] a Notice of Intent to Dismiss Pursuant

to Rule 907. [Appellant] did not reply to the 907

Notice. On May 5, 2021, this Court dismissed

[Appellant’s] petition based upon lack of merit. On

May 13, 2021, [Appellant] appealed this dismissal to

Superior Court.

____________________________________________

1See Commonwealth v. Brown, 159 A.3d 1016 (Pa.Super. 2016), appeal

denied, 169 A.3d 595 (Pa. 2017).

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

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J-S04040-22

PCRA court opinion, 8/20/21 at 1-2 (footnotes added).

The PCRA court did not order Appellant to file a concise statement of

errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).

Thereafter, on August 20, 2021, the PCRA court filed a comprehensive Rule

1925(a) opinion addressing all of Appellant’s claims.

Appellant raises the following issues for our review:

I. Did the PCRA Court err when it found that trial

counsel did not violate Appellant’s rights under

the Sixth and Fourteenth Amendments of the

U.S. Constitution and Article 1 section 9 of the

Pennsylvania Constitution by ineffectively failing

to make the correct argument in support of

severance?

II. Did the PCRA Court err when it found that trial

counsel did not violate Appellant’s rights under

the Sixth and Fourteenth Amendments of the

U.S. Constitution and Article 1 section 9 of the

Pennsylvania Constitution by ineffectively failing

to request that the Court give the jury a

contemporaneous instruction on the limited

purpose for which they could consider Myron

Baker’s testimony about the November 9, 2009

robbery evidence in relation to Appellant’s guilt

or innocence?

III. Did the PCRA Court err when it found that trial

counsel did not violate Appellant’s rights under

the Sixth and Fourteenth Amendments of the

U.S. Constitution and Article 1 section 9 of the

Pennsylvania Constitution by ineffectively failing

to request an immediate cautionary instruction

be given in relation to the testimony of Myron

Baker, who violated the Court’s Sequestration

Order?

IV. Did the PCRA Court err when it found that trial

counsel did not violate Appellant’s rights under

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J-S04040-22

the Sixth and Fourteenth Amendments of the

U.S. Constitution and Article 1 section 9 of the

Pennsylvania Constitution by ineffectively failing

to object to the prosecutor’s opening statement

which vouched for the reliability of the

identification made by [] eyewitness

Fahnbulleh[?]

V. Did the PCRA Court err in finding that

Appellant’s constitutional right to due process of

law and a fair trial was not violated by the

cumulative impact of trial counsel[’s]

ineffectiveness in violation of the Sixth

Amendment?

Appellant’s brief at 3-4.

Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). “This Court grants great deference to the findings of the

PCRA court, and we will not disturb those findings merely because the record

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted).

All of Appellant’s claims concern the ineffectiveness of his trial counsel.

To prevail on a claim of ineffective assistance of counsel under the PCRA, a

petitioner must plead and prove by a preponderance of the evidence that

counsel’s ineffectiveness “so undermined the truth-determining process that

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J-S04040-22

no reliable adjudication of guilt or innocence could have taken place.”

42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining

whether trial counsel was ineffective, derived from the test articulated by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668,

687 (1984), and as applied in Commonwealth v. Pierce, 527 A.2d 973 (Pa.

1987). Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).

The Pierce test requires a PCRA petitioner to prove:

(1) the underlying legal claim was of arguable merit;

(2) counsel had no reasonable strategic basis for his

action or inaction; and (3) the petitioner was

prejudiced—that is, but for counsel’s deficient

stewardship, there is a reasonable likelihood the

outcome of the proceedings would have been

different.

Id., citing Pierce, 527 A.2d at 975.

This court has explained that a petitioner “must meet all three prongs

of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d

1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),

appeal denied, 104 A.3d 523 (Pa. 2014). “[C]ounsel is presumed to be

effective and the burden of demonstrating ineffectiveness rests on appellant.”

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (citation

omitted), appeal denied, 30 A.3d 487 (Pa. 2011).

Following a thorough review of the record, including the briefs of the

parties, the applicable law, and the well-reasoned opinion of the PCRA court,

it is our determination that Appellant’s ineffectiveness claims warrant no relief.

The PCRA court comprehensively discussed each of Appellant’s allegations of

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J-S04040-22

ineffective assistance of trial counsel and concluded that they failed to satisfy

one or more prongs of the Pierce test. We find that the PCRA court’s

conclusions are supported by competent evidence and are clearly free of legal

error.

Specifically, we agree with the PCRA court that Appellant failed to

demonstrate that there was a reasonable probability that the outcome of the

trial would have been different had he been tried separately from his co-

defendant. See PCRA court opinion, 8/20/21 at 4-5. Likewise, we agree with

the PCRA court that trial counsel had a reasonable basis for not requesting a

limiting instruction with respect to Myron Baker’s testimony, as it could have

served to highlight negative evidence. Id. at 5-6.

We further agree with the PCRA court that trial counsel was not

ineffective for failing to request an immediate cautionary instruction with

respect to Baker’s testimony, as the record demonstrated his violation of the

trial court’s sequestration order was unintentional and trial counsel was

provided the opportunity to question him. Id. at 6-7. Additionally, we agree

with the PCRA court that the prosecutor did not improperly vouch for the

credibility of eyewitness Wuyatta Fahnbulleh during his opening statement

and Appellant’s ineffectiveness claim in this regard is devoid of arguable merit.

Id. at 7-8.

Lastly, we agree with the PCRA court that Appellant is not entitled to

relief on his claim that the cumulative prejudice suffered from trial counsel’s

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J-S04040-22

purported ineffectiveness rendered his trial unconstitutionally unfair. See id.

at 9-10; Appellant’s brief at 52-55.

In reaching this conclusion we note that our Supreme Court has long

recognized that “no number of failed [ineffectiveness] claims may collectively

warrant relief if they fail to do so individually.” Commonwealth v. Johnson,

966 A.2d 523, 532 (Pa. 2009) (citations omitted). “[W]here a claimant has

failed to prove prejudice as the result of any individual errors, he cannot

prevail on a cumulative effect claim unless he demonstrates how the

particular cumulation requires a different analysis.” Commonwealth v.

Wright, 961 A.2d 119, 158 (Pa. 2008) (emphasis added).

Here, we agree with the PCRA court that Appellant has failed to do so in

this instance. Appellant’s ineffectiveness claims at issue are, in large part,

factually and legally independent, with no reasonable connection warranting

a conclusion that their cumulative effect amounts to actual prejudice.

Accordingly, we adopt the PCRA court’s comprehensive August 20, 2021

opinion as our own for purposes of this appellate review.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2022

-7-

Circulated 02/04/2022 09:58 AM

IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CRIMINAL TRIAL DIVISION

COMMONWEALTH CP-51-CR-0010356-2013

FILED

A 20 2021

vs,

Olfce of Judicial Records

Appeals/Post Trial

SUPERIOR COURT

RAHEEM DROWN 975 EDA 2021

OPINION

DRINKLEY, J. AUGUST 20, 2021

Defendant Raheem Brown filed a first and timely petition for relief pursuant to the Post

Conviction Relief Aet (PCRA), 42 Pa.C.S.A. § 9541 et seq. (eff. Jan. 16, 1996), claiming

ineffective assistance of counsel and relief based upon cumulative error. After independently

reviewing Defendant's pro se petition and subsequent prose filings, counsel's amended and

supplemental petitions, and the Commonwealth's motion to dismiss, this Court dismissed

Defendant's petition based upon lack of merit. Defendant appealed this dismissal to Superior

Court. This Court's dismissal should be affirmed.

Background

On June 11, 2013, Defendant was arrested and charged with second degree murder,

conspiracy, burglary, robbery and VUFA 6106, in connection with the robbery and shooting

death of Rush Thompson ["Thompson"]. From May 5 to May 15, 2015, Defendant and his co-

defendant Emmanuel Duran were tried before this Court in the presence of a jury. Defendant was

represented by Michael Huff, Esquire. On May 15, 2015, the jury found Defendant guilty of all

charges. That same day, this Court sentenced him to the mandatory sentence of life

imprisonment without the possibility of parole on the second degree murder charge, 20 to 40

years state incarceration on conspiracy, IO to 20 years state incarceration on robbery, 10 to 20

years state incarceration on burglary, and 3 ½ to 7 years state incarceration on VUFA 6106. All

of the terms were to run concurrently with one another. Defendant filed a post-sentence motion

for reconsideration on May 22, 2015. This was denied by operation of law on September 30,

2015. On October 1, 2015, Defendant filed a Notice of Appeal to the Superior Court; the

Superior Court affirmed his judgment of sentence on December 28, 2016. On June 27, 2017, the

Pennsylvania Supreme Court denied Defendant's petition for allowance of appeal.

On July 14, 2017, Defendant filed the instant first and timely pro se PCRA petition. On

January 19, 2018, Defendant filed a prose Amended Petition. On March 15, 2018, George

Yacoubian, Esquire was appointed as PCRA counsel. On August 3, 2018, Defendant filed a

motion to proceed pro se. On May 8, 2019, this Court conduced a Grazier hearing and permitted

Defendant to proceed prose. On June 28, 2019, Defendant filed a prose supplemental petition.

On July 15, 2019, Defendant retained Teri Himebaugh, Esquire as private counsel. On

November 11, 2019, Ms. Himebaugh filed an Amended Petition. On February 20, 2020, she filed

a Supplemental Petition. On December 16, 2020, the Commonwealth filed its Motion to Dismiss.

On April 5, 2021, this Court sent Defendant a Notice of Intent to Dismiss Pursuant to Rule 907.

Defendant did not reply to the 907 Notice. On May 5, 2021, this Court dismissed Defendant's

petition based upon lack of merit. On May 13, 2021, Defendant appealed this dismissal to

Superior Court.

2

Discussion

When reviewing the denial of PCRA relief, the appellate court's review is limited to

determining whether the PCRA court's findings are supported by the record and without legal

error. Commonwealth v, Edmiston, 619 Pa. 549, 65 A.3d 339, 345 (2013) (citing

Commonwealth v, Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001)). The court's scope of

review is limited to the findings of the PCRA court and the evidence on the record of the PCRA

court's hearing, viewed in light most favorable to the prevailing party. Commonwealth_v. Fahy,

598 Pa. 584, 959 A.2d 312, 316 (2008) (citing Commonwealth y, Duffey, 585 Pa. 493, 889 A.2d

56, 61 (2005)). The burden is on the petitioner in the PCRA petition to demonstrate by a

preponderance of the evidence that he or she is eligible for PCRA relief. 42 Pa.C.S.A $ 9543.

This Court properly dismissed Defendant's petition because all of his claims of

ineffective assistance of counsel are without merit. To prevail on a claim alleging counsel's

ineffectiveness under the PCRA, the appellant must demonstrate (I) that the underlying claim is

of arguable merit; (2) that counsel's course of conduct was without a reasonable basis; and (3)

that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but

for the act or omission in question the outcome of the proceedings would have been different.

Commonwealth v. Timchak, 2013 PA Super 157, 69 A.3d 765, 769 (2013) (citing

Commonwealth v, Wah, 42 A.3d 335, 338 (Pa.Super.2012)). A PCRA petitioner will be granted

relief only when he proves, by a preponderance of the evidence, that his conviction or sentence

resulted from the ineffective assistance of counsel which, in the circumstances of the particular

case, so undermined the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place. Id. (citing 42 Pa.C.S. § 9543(a)(2)(ii)). Counsel's assistance is

deemed constitutionally effective once the court determines that the defendant has not

3

established any one of the prongs of the ineffectiveness test. Id. (citing Commonwealth v. Rolan,

964 A.2d 398, 406 (Pa.Super.2008)) To establish prejudice, the defendant must show that there

is a reasonable probability that the outcome of th~ proceedings would have been different but for

counsel's action or inaction. Commonwealth v. Davida, I 06 A.3d 611, 621 (Pa. 2014) (citing

Commonwealth v, Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). When an appellant fails

to meaningfully discuss each of the three ineffectiveness prongs, "be is not entitled to relief, and

we are constrained to find Such claims waived for lack of development." Commonwealth y,

Fears, 624 Pa. 446, 461, 86 A.3d 795, 805 (2014) (quoting Commonwealth y. Steele, 599 Pa.

341, 361, 961 A.2d 786, 797 (2008) ("[U]ndeveloped claims, based on boilerplate allegations,

cannot satisfy Appellant's burden of establishing ineffectiveness.").

I. Trial counsel was not ineffective for the argument he made in favor of

severance, which this Court ultimately denied.

First, trial counsel was not ineffective for failing to make the "correct" argument in

support of severance. Defendant argues that trial counsel inadvertently argued for joinder instead

of severance, and that counsel should have argued that severance was necessary because some

evidence was admissible against only co-defendant Duran but allegedly was prejudicial to

Defendant. This claim is without merit.

Pursuant to Pa.R.Crim.P. 582(A)(2), "[djefendants charged in separate indictments or

informations may be tried together if they are alleged to have participated in the same act or

transaction or in the same series of acts or transactions constituting an offense or offenses."

Whether to sever or join a defendant's trial from his/her codefendant's is a matter entrusted to

the discretion of the trial court and that decision will not be disturbed absent a manifest abuse of

discretion or prejudice and clear injustice to the defendant. Commonwealth v. Spotz, 756 A.2d

1139, 562 Pa. 498 (2000). The Pennsylvania Supreme Court has set forth the Lark, infra, test to

4

determine whether severance is proper: (I) whether the evidence of each the offenses would be

admissible in a separate trial for the other; (2) whether the evidence is capable of separation by

the jury so as to avoid danger of confusion; and (3) whether the defendant will be unduly

prejudiced by consolidation. Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997)(citing

Commonwealth y. Lark, 518 Pa. 290, 302, 543 A.2d 491, 496-97 (1988)).

In the case at bar, this Court properly determined that a joint trial was appropriate in this

case and this Court would not have reached a different conclusion had trial counsel made the

argument Defendant now claims is the correct one. Defendant and co-defendant Duran were both

charged with murder, conspiracy and related charges based upon nearly the exact same evidence

and witnesses. Defendant claims that he was prejudiced by evidence of Duran's involvement in

the robbery of Myron Baker the morning after the murder. However, the evidence showed that

both Defendant and Duran robbed Baker using a weapon similar to the one used to rob

Thompson. This evidence was admissible to prove Defendant's identity as a participant in

Thompson's robbery and murder. Whether the weapon was in the fact the same one used in both

crimes went to the weight that the jury placed upon the evidence, not admissibility. Moreover,

Defendant has failed to establish that he was prejudiced by being tried with Duran. He failed to

demonstrate that there was a reasonable probability that the outcome of the trial would have been

different had he been tried separately from Duran. Accordingly, no relief is due.

II. Trial counsel was not ineffective for failing to request an instruction limiting

the jury's consideration of Myron Baker's testimony.

Defendant argues that trial counsel was ineffective for failing to request that this Court

give a contemporaneous instruction on the limited purpose for which they could consider Myron

Baker's testimony regarding the November 9, 2009 robbery in relation to Defendant's guilt or

innocence. This claim is without merit. Defendant is unable to show that counsel had no

5

reasonable basis for failing to request this instruction. The record shows that at several points

during trial, trial counsel considered "other crimes" evidence concerns and whether limiting

instructions were necessary and/or advisable. (N.T. 5/7/15, p. 36-75, 93-100). Trial counsel

noted that he was concerned that additional limiting instructions could potentially serve to

"highlight" negative evidence. [d. at 55. Thus, it is clear from the record that trial counsel

carefully considered whether limiting instructions were advisable or would do more harm than

good. Since it appears trial counsel had a reasonable basis for not requesting a limiting

instruction with respect to Myron Baker's testimony, this claim is without merit. In addition,

Defendant has failed to establish how he was prejudiced by the lack of a limiting instruction. No

relief is due.

III, Trial counsel was not ineffective for failing to request an immediate

cautionary instruction regarding the testimony of Myron Baker, who

violated this Court's sequestration order.

Trial counsel was not ineffective for failing to request an immediate cautionary

instruction regarding Myron Baker's testimony. Defendant argues that "fg]iven the nature and

importance of Baker's testimony and the Commonwealth's reliance on it being the key link in

the evidentiary chain ultimately leading to [Defendant], counsel should have asked the Court

give both an immediate and a final instruction to the jury." Am. Pet. p. 34-35. He further argues

that this "instruction should have advised the jury that during this trial, the Court had ordered

that witnesses are sequestered so that they cannot learn of other witnesses' testimony. Baker

violated that order. They may use the fact that Baker violated the sequestration order to evaluate

the credibility and weight to give his in-court testimony." Id. at 35. This claim is without merit.

Where a violation of a sequestration order occurs, the remedy selected "is within the

sound discretion of the trial court. In exercising its discretion, the trial court should consider the

seriousness of the violation, its impact on the testimony of the witness, and its probable impact

6

on the outcome of the trial. We will disturb the trial court's exercise of its discretion only if there

is no reasonable ground for the action taken." Commonwealth v. Rose, 172 A.3d 1121, 1127

(Pa.Super.2017)(quoting Commonwealth y, Smith, 464 Pa. 314, 346 A.2d 757, 760 (1975)).

The record shows that while Edward Brooks was testifying, Myron Baker arrived at the

courtroom but instead of waiting outside in the hall, he entered the courtroom and sat in the

galJery. Once this Court was made aware of his presence, this Court questioned Baker and

determined that this sequestration violation was unintentional. (N.T, 5/6/15, p. 151-56, 215-24)

Counsel then had the opportunity to question Baker as to whether Brooks' testimony would

impact his own testimony and counsel determined that he had not been influenced by what he

heard Brooks say. Id. at 215-24. Thus, this Court chose an appropriate remedy-allowing

counsel to question Baker to his satisfaction-and had a reasonable basis for doing so. Defendant

makes no argument that this remedy was wueasonable, beyond claiming that counsel

"ineffectively chose not to request" that an instruction be given to the jury and that counsel's

"decision not to actively advocate on his client's behalf was not in his client's best interest."

Since Defendant is unable to show that counsel's decision to accept this Court's reasonable

remedy was prejudicial in any way, no relief is due.

IV, Trial counsel was not ineffective for failing to object to the prosecutor's

opening statement where he allegedly "vouched" for the reliability of the

identification made by witness Fahnbulleh.

Defendant argues that trial counsel was ineffective for failing to object to the prosecutor's

opening statement, where he told the jury:

Remember, when we have detectives investigate something, we

have, now in 201 S, and back then in 2009, a lot of pictures. We

have-if you ever been arrested, got a driver's license. There are

pictures in the database. But we have to know a little bit more to be

able to put those pictures in front of witnesses. We can't just put

the seven billion people on this planet, and say pick out who they

are.

7

(N.T. 5/15/15, p. 34). Defendant argues that the inference "was that the police had some sort of

unidentified but reliable evidence that made them put [Edward] Brook's photo in the array that

was shown to Fahnbulleh." Am. Pet. p. 38. This claim is without merit.

Although it is not proper for a prosecutor to offer a personal opinion as to the credibility

of the defendant or other witness, prosecutors are permitted to comment upon the credibility of

the defendant or a witness. Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013) (citing

Commonwealth v. Chmiel, 585 Pa. 547,889 A.2d 501,545 (2005)). Even an otherwise

improper comment may be appropriate if it is in fair response to defense counsel's remarks.

Commonwealth y, Burno, 96 A.3d 956, 974 (Pa. Super, 2014) (quoting Commonwealth v,

Elliott, 80 .2d 415, 443 (Pa. 2013). Furthermore, a prosecutor's comments do not constitute

reversible error unless their unavoidable effect was to prejudice the jury, forming in their minds

fixed bias and hostility towards the defendant so that they could not weigh the evidence

objectively and render a true verdict. Id.

In the case at bar, the prosecutor did not improperly vouch for Fahnbulleh's credibility

with this statement. Rather, he simply explained identification procedures used by law

enforcement. In addition, he was anticipating and responding to defense counsel's argument that

the police should have shown Fahnbulleh a photo of Troy Rawlinson, aka "Scooty," whom

Defendant argues was the actual killer. Police had no reason to show Fahnbulleh a photo of

Scooty, but did have reason to show her a photo of Brooks, the third individual who participated

in Thompson's murder and subsequently pled guilty to this crime. As with each of Defendant's

claims above, he also has failed to demostrate how he was prejudiced in any way. Accordingly,

no relief is due.

8

V, Cumulative Error Claim--No Relief is Due

Defendant argues that he is owed relief based upon the "cumulative en ors" in his case

that the believes amounted to ineffective assistance of counsel. He claims that he is "still entitled

to relief on the basis that the cumulative prejudice resulting from the errors undermined the

fundamental fairness of his trial and denied him his constitutional right to due process."

Amended Petition, p. 39. He argues that "each of counsels [sic] errors individually undermined

his misidentification defense. When considered together [Defendant] was essentially left

defenseless." Id. at 40, This claim is meritless.

"[WJhere a claimant has failed to prove prejudice as a result of any individual errors, he

cannot prevail on a cumulative effect claim unless he demonstrates how the particular

cumulation requires a different analysis." Commonwealth y. Hutchinson, 611 Pa. 280, 318-19,

25 A.3d 277 (201 1)(quoting Commonwealth_v Wright, 599 Pa. 270, 961 A.2d 119, 158 (2008)).

The claimant must set forth "a specific, reasoned, and legally and factually supported argument

for the claim" of cumulative prejudice. Hutchinson, 25 A.3d at 352 (citing Commonwealth y,

Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009)). Bald claims of cumulative prejudice are

insufficient. Hutchinson, 25 A.3d at 352.

In the case at bar, Defendant has failed to demonstrate how the particular cumulation of

alleged ineffective assistance of counsel prejudiced him in such a way that requires a different

analysis. This Court reviewed each of his claims of ineffective assistance of counsel and

determined that in each instance, the claim was meritless and Defendant failed to demonstrate

prejudice. The record shows this Court properly allowed joinder of Defendant and co-

defendant's cases and would not have reached a different conclusion if counsel had made the

argument Defendant suggests. Counsel had a reasonable basis for not requesting a limiting

instruction regarding Myron Baker's testimony since it could have served to highlight negative

9

evidence. This Court invoked the appropriate remedy when Myron Brooks unintentionally

violated the sequestration order. Last, the prosecutor did not improperly vouch for a witness's

credibility. Even when reviewed in the aggregate, these claims still do not amount to a denial of

Defendant's due process by "undermining his misidentification defense" or "leaving him

essentially defenseless." Each claim is meritless and Defendant has failed to demonstrate

prejudice. As such, bis claim of cumulative prejudice must fail and no relief is due.

10

CONCLUSION

After reviewing the applicable case law, statutes, and testimony, this Court committed no

error. This Court properly dismissed Defendant's petition based upon lack of merit. Accordingly,

no relief is due and this Court's dismissal should be affirmed.

BY THE COURT:

J.

11