Com. v. Kelly, M.

J-S29030-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

MARLIN KELLY

Appellant : No. 39 WDA 2022

Appeal from the PCRA Order Entered December 20, 2021

In the Court of Common Pleas of Beaver County

Criminal Division at No. CP-04-CR-0000133-2013

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 12, 2022

Marlin Kelly (Appellant) appeals from the order denying, after an

evidentiary hearing, his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review of the record and

applicable law, we incorporate the PCRA court’s comprehensive opinion and

affirm.

“ Retired Senior Judge assigned to the Superior Court.

1 The opinion is 51 pages and addresses issues Appellant does not argue in

his brief. The PCRA court explained, inter alia, that it detailed the facts and

procedural history “due to the numerous issues” Appellant raised in his

Pa.R.A.P. 1925(b) statement, “the gravity of this case, and for the

convenience of any person reviewing this case[.]” PCRA Court Opinion,

12/20/21, at 1.

J-S29030-22

Appellant is serving a mandatory life sentence for second-degree

murder, second-degree murder of an unborn child, and conspiracy.? This

Court affirmed Appellant’s sentence on direct appeal, and the Pennsylvania

Supreme Court denied allowance of appeal.2, We summarized the underlying

facts as follows:

Around August 2012, [Appellant] became involved in a heroin-

dealing operation with three other men: Stephen Murray

(“Murray”), Murray’s brother, Herbert Murray (“Herbert”), and

Tyrone Fuller (“Fuller”). In early October 2012, a disagreement

among the four divided the group into two enterprises: [Appellant]

with Fuller, and Murray with Herbert. On October 21, 2012,

Murray stole approximately six bricks of heroin that had belonged

to [Appellant]. After Fuller discovered that Murray had taken the

heroin, and was selling it to Fuller and [Appellant’s] usual

customers, [Appellant] and Fuller formed a plan to retrieve the

heroin by robbing Murray at gunpoint.

[Appellant] and Fuller enlisted the help of James Leo (“Leo”), a

heroin addict who frequently provided transportation for Fuller in

exchange for heroin. Fuller and [Appellant] asked Leo to buy

heroin from Murray, so that Fuller and [Appellant] could determine

where [Murray] lived. In exchange, Fuller and [Appellant] would

provide the buy money and Leo could keep the heroin that he

purchased.

Leo agreed to the arrangement and on October 28, 2012, drove

[Appellant] and Fuller to Murray’s apartment building. Leo called

Murray and arranged to buy the heroin. [Appellant] and Fuller,

both armed with handguns, ascended the exterior stairs of the

apartment building, and hid in a shadowy area in the stairwell,

waiting to ambush whoever met with Leo.

2 18 Pa.C.S.A. §§ 2502(b), 2604(b), 903(a)(1).

3 Appellant was tried twice. This Court reversed Appellant’s first conviction

and granted a new trial after concluding the trial court’s, “failure to sustain a

challenge for cause as to Juror No. 1 constitute[d] reversible error.”

Commonwealith v. Kelly, 134 A.3d 59, 65 (Pa. Super. 2016).

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While [Appellant] and Fuller were waiting, someone approached

their position, causing them to retreat to another floor.

[Appellant] stopped outside of the front door to Murray’s

apartment. At that moment, Murray’s girlfriend, Conekia Finney

(“Finney”), opened the door, startling [Appellant], and causing

him to point his gun into the doorway and pull the trigger. Finney

was seven months pregnant with her daughter, Sekiah. After

realizing he had shot someone, [Appellant] fled the scene with

Fuller following close behind, unaware of what had happened.

Both Finney and Sekiah died as a result of the gunshot wound.

Several days later, [Appellant] and Fuller were apprehended.

[Appellant] was charged with criminal homicide, criminal homicide

of an unborn child, robbery, and conspiracy to commit robbery.

Commonwealth v. Kelly, 192 A.3d 256 (Pa. Super. May 17, 2018)

(unpublished memorandum at *1), appeal denied, 197 A.3d 224 (Pa. Nov.

15, 2018).

On August 5, 2019, Appellant filed a pro se PCRA petition raising more

than 10 claims. The PCRA court* appointed counsel, who filed an amended

petition which included Appellant’s pro se issues, along with three additional

issues. Thereafter, the case “experienced some delays due to the COVID-19

pandemic.” PCRA Court Opinion, 12/20/21, at 6 (footnote omitted). With the

PCRA court’s permission, Appellant’s first appointed counsel withdrew his

appearance. The PCRA court appointed current counsel, who filed a second

amended petition raising more issues. The PCRA court observed that “[e]ach

4 The Honorable Kim Tesla presided at trial and the PCRA proceedings.

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of [Appellant’s] eighteen claims assert that his trial counsel was ineffective.”

Id. at 8.

The PCRA court held an evidentiary hearing on September 27, 2021.

Appellant testified and presented testimony from trial counsel, Stephen

Colafella, Esquire. The Commonwealth did not present any witnesses.

Relevant to this appeal, Appellant testified as follows:

PCRA COUNSEL. And to your recollection, do you recall discussing

the trial strategy in both trial one and trial two?

A. Yes.

Q. To your recollection, did it change?

A. It was about the same.

PCRA COUNSEL: Thank you, [Appellant].

THE COURT: Cross-examination.

COMMONWEALTH: Thank you.

Q. Good morning, [Appellant].

A. Good morning.

Q. [Appellant], you had said when [PCRA counsel] asked you

about Colafella questioning did you go running to the DA’s Office,

you said it threw you for a loop, I think those were your words?

A. Yeah.

Q. Why did it throw you for a loop? What do you mean by that?

A. Because like that’s not something we discussed. Like we had

went over a few, you know, a few questions before, but that’s,

that’s not one of the questions we had, you know what I mean,

had discussed.

J-S29030-22

Q. Did it, it threw you for a loop because you knew that that’s

generally not something you're allowed to bring up in a trial?

A. I mean, no. I mean I’m not an attorney, but my thing is, ... if

we discussed something, you know what I mean, going one way

and then something else is thrown in there, that’s not part of what

we discussed. It kind of like, you know what I’m saying, it kind of

threw me for a loop. ...

Q. You had, basically, and I’m paraphrasing, you had no

knowledge that a question like that would be inadmissible?

A. Yeah, correct.

Q. But you also said it threw you for loop because that wasn’t one

of your rehearsed questions, is that what you're saying?

A. Yes. Plus he, he told me before that ... like basically, yeah, it

was just something we hadn’t discussed before.

Q. But you knew the whole, the whole point of this trial was

Tyrone Fuller was a snitch, Tyrone Fuller got a deal, Tyrone

Fuller was lying, right?

A. Yes.

Q. And that you weren't, right?

A. Correct.

Q. You weren’t, you stood your ground, right?

A. Correct.

Q. And you, you heard [your trial counsel, Mr.] Colafella say that

in his opening, that you were standing your ground, right?

A. Correct.

Q. And you agree with it, right?

A. Correct.

J-S29030-22

Q. Because that’s what you were trying to portray, right, that you

were standing your ground, you weren't lying?

A. Yeah, I wasn’t lying, correct.

Q. And your story, and I’m paraphrasing, but your, your defense

was going to be, even though Leo dropped you guys off in the

area of Smoke Murray’s house, that Tyrone Fuller went to Smoke’s

house, you went elsewhere, right, that was your whole strategy?

A. Correct.

Q. And Tyrone Fuller comes on _ board later with the

Commonwealth and says both of you were at Smoke Murray’s

house, and that is a lie, that was what your understanding of what

the strategy was, is that fair to say?

A. Correct.

Q. And you were confident in Mr. Colafella’s abilities -

A. Correct.

Q. -- is that right? Obviously, you were convicted the first time,

but he filed an appeal on your behalf, right?

A. Yes.

Q. And he was successful in that appeal, right?

A. Yes.

Q. And you felt comfortable with the amount of times that he met

you. You had testified in the first trial, right?

A. Yes.

Q. He had gone over that with you before, right?

A. Yes.

Q. And you felt comfortable testifying a second time because the

rapport that you had with Mr. Colafella because of the abilities that

you knew Mr. Colafella had, right?

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J-S29030-22

A. Yes.

Q. And when Mr. Colafella says to the jury, and you heard this,

you were present for the opening, right, that you were standing

your ground, you thought, okay, this sounds good, this is in line

with what the strategy is, right?

A. More or less, yes.

N.T., 9/27/21, at 105-09 (emphasis added).

At the conclusion of the hearing, the PCRA court stated:

At this particular point, both side’s counsel ha[ve] taken a

look at the record. This is an extensive case. A case that has

had, we'll just say, had a lot of time and a lot of effort by both the

Commonwealth and the defense in this case. We’ve waited for

this PCRA petition. Obviously, we’ve allowed amendments on two

different occasions. We've had testimony.

I think, at this particular point, do[] both counsel agree that

they would like to submit briefs based upon a transcript record to

the [PCRA c]lourt on the legal issues before it so that that would

be an aid in the [c]Jourt deciding this Postconviction Collateral

Relief Petition?

N.T., 9/27/21, at 114. The parties expressed their desire to file briefs, and

Appellant’s counsel stated he would order the transcript from the PCRA

hearing. Id. at 115. The PCRA court stated that Appellant’s brief would be

due within 30 days of Appellant receiving the PCRA hearing transcript, and the

Commonwealth’s brief would be due within 30 days of receiving Appellant’s

brief. Id. at 116.

On December 20, 2021, the PCRA court entered an order and opinion

denying relief. Appellant timely appealed. The PCRA court did not order

Appellant to file a Pa.R.A.P. 1925(b) concise statement. The court stated it

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had “explained its reasons for denying each and every one of [Appellant’s]

PCRA claims in its December 20, 2021 opinion, which is attached and

incorporated by reference.” Pa.R.A.P. 1925(a) Opinion, 1/13/22.

On appeal, Appellant claims:

I. The PCRA Court erred in denying relief where [Appellant]

established trial counsel’s ineffective assistance for pursuing an

unreasonable trial strategy that implicated [Appellant’s] right to

remain silent; for failing to confer with [Appellant] regarding a line

of questioning that would infringe [upon] his Fifth Amendment

Rights; and for failing to include [Appellant] in discussions at

sidebar and during in-chambers meetings, where the focus of

those discussions implicated [Appellant’s] constitutional rights.

Appellant’s Brief at 4.

In reviewing these claims, we adhere to the following authority:

To be eligible for PCRA relief, a petitioner must prove by a

preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated circumstances found

at 42 Pa.c.S. § 9543(a)(2) (delineating the eligibility

requirements of the PCRA). A petitioner also must demonstrate

that the issues raised in his PCRA petition have not been

previously litigated or waived. Id, at § 9543(a)(3).

>K OK K

It is well-settled that counsel is presumed to have been

effective and that the petitioner bears the burden of

proving counsel's alleged ineffectiveness. Commonwealth v.

Cooper, 596 Pa. 119, 941 A.2d 655, 664 (2007). To overcome

this presumption, a petitioner must establish that: (1) the

underlying substantive claim has arguable merit; (2) counsel did

not have a reasonable basis for his or her act or omission; and (3)

the petitioner suffered prejudice as a result of counsel's deficient

performance, “that is, a reasonable probability that but for

counsel's act or omission, the outcome of the proceeding would

have been different.” Id. A PCRA petitioner must address each

of these prongs on appeal. See Commonwealth v. Natividad,

595 Pa. 188, 938 A.2d 310, 322 (Pa. 2007) (explaining that

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J-S29030-22

“appellants continue to bear the burden of pleading and proving

each of the [ineffective assistance of counsel] elements on appeal

to this Court”). A petitioner’s failure to satisfy any prong of this

test is fatal to the claim. Cooper, 941 A.2d at 664.

When [an appellate c]ourt reviews an order dismissing or denying

a PCRA petition, its standard of review is whether the findings of

the PCRA court are supported by the record and are free from

legal error. “The PCRA court’s credibility determinations, when

supported by the record, are binding on this

Court[.]” Commonwealth v. Mason, 634 Pa. 359, 130 A.3d

601, 617 (2015) (quoting Commonwealth v. Roney, 622 Pa. 1,

79 A.3d 595, 603 (2013)). “Appellant has the burden to persuade

this Court that the PCRA court erred and that such error requires

relief.” Commonwealth v. Wholaver, 644 Pa. 386, 177 A.3d

136, 144-45 (2018).

Commonwealth v. Reid, 259 A.3d 395, 405-06 (Pa. 2021).

We are not persuaded that the PCRA court erred. Appellant “presents

intertwined arguments” assailing trial counsel’s failure to confer with Appellant

before engaging in direct examination, sidebar and_ in-chambers

communications, and failing to adequately advise Appellant “regarding the

waiver” of his Fifth Amendment right, which “was implicated through Trial

Counsel’s own line of questioning, and in his reaction to the fallout from that

line of questioning, as evidenced by the sidebar and during in chambers

discussions.” Appellant’s Brief at 12. Appellant asserts trial counsel

“unilaterally decided to waive [Appellant’s] Fifth Amendment Rights—which

trial counsel had no right to do.” Id. at 16. Appellant claims trial counsel

“elected a trial strategy which waived his right to remain silent without first

consulting [Appellant] about his strategy, and without obtaining [Appellant’s]

consent to use this strategy.” Id, at 17. According to Appellant, trial counsel

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admitted his mistake at the PCRA hearing. Id. at 19. Appellant contends that

when the issue regarding his Fifth Amendment right to remain silent

“developed at trial, [trial counsel] did not discuss with [Appellant] what

transpired at sidebar or in-chambers and did not consult with him about how

he wished to proceed moving forward.” Id. at 24. Appellant disputes the

PCRA court’s conclusion that Appellant waived his right to remain silent, and

that trial counsel’s questioning of Appellant, “was part of his reasonable

strategy.” Id. at 26-27. Appellant maintains trial counsel’s actions were

prejudicial and warrant a new trial. Id. at 28.

The record confirms Appellant waived his Fifth Amendment right to

remain silent. Prior to Appellant testifying, trial counsel questioned Appellant:

MR. COLAFELLA: Okay. Now, [Appellant], I have represented you

since, well, I represented you in the last trial, is that correct, some

time after your preliminary hearing I was appointed to your case;

is that correct?

THE DEFENDANT: Yes.

MR. COLAFELLA: And I’ve continued to represent you through

your appeal up until the present; is that correct?

THE DEFENDANT: Correct.

MR. COLAFELLA: Okay. [Appellant], we’re obviously here in your

second trial, and we are now in our case in chief, and we’re at the

point in the case where you have to make a decision as to whether

you want to testify, and you and I have discussed that issue

at some length; is that correct?

THE DEFENDANT: Yes, correct.

MR. COLAFELLA: And ... in fact, [Appellant], you testified in the

last trial; is that correct?

THE DEFENDANT: Yes, I did.

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J-S29030-22

MR. COLAFELLA: Okay. Have, have you had ample opportunity

to discuss with me your decision whether or not to testify?

THE DEFENDANT: Yes, I did.

MR. COLAFELLA: And [Appellant], you understand that you would

have the right under our Constitution and the Constitution of the

United States that, if you choose, you have the right to refuse to

testify, do you understand that?

THE DEFENDANT: Yes, I do.

MR. COLAFELLA: And that in the event you elected not to testify,

the ... Court would instruct the jury that they could draw no

adverse inference from the fact that you did not testify on your

behalf, do you understand that?

THE DEFENDANT: Yes, I understand.

MR. COLAFELLA: Now, naturally, if you do testify, you’re subject

to cross-examination, and there is an instruction that’s given

relative to the fact that you did, in fact, testify and the jury may

weigh your credibility the same as any other witness, do you

understand?

THE DEFENDANT: Yes.

MR. COLAFELLA: Based upon all of that, based upon our

discussions of your case and, and the defense in your case,

is it your decision to testify[?].

THE DEFENDANT: Yes, it’s my decision to testify.

MR. COLAFELLA: And in the event you do testify, you

understand, naturally, you are waiving your right to remain

silent and not testify in your own behalf, do you still understand?

THE DEFENDANT: Yes, I understand that.

MR. COLAFELLA: Okay. Do you have any questions at all in regard

to those rights, [Appellant]?

THE DEFENDANT: No.

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N.T., 2/28/17, at 118-221 (emphasis added). The trial court then determined

“there’s an adequate colloquy showing that [Appellant] has made a knowing,

voluntary decision to testify. That record’s now established.” Id. at 221.

With respect to sidebars and in-chambers communication, Appellant

testified on direct examination at the PCRA hearing as follows:

Q. How many times do you think there might have been a side

bar or an in-chamber discussion during your trial?

A. A lot.

Q. And when you say “a lot,” would that be plus ten?

A. Probably more than that, yeah.

Q. More than 20?

A. Yeah, probably more than 20.

Q. Mr. Colafella said it was probably 20 or more, right?

A. Yeah.

Q. Would you agree with that?

A. Yeah, I would agree with that.

Q. And how many times were you able to participate in the side

bar or the in-chambers meeting?

A. Never.

Q. How many times were you offered the opportunity to be part

of that process?

A. Never.

Q. So what happened when they’d go in chambers, what

happened with you?

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J-S29030-22

A. I would go downstairs, and they would talk, and then they

would bring me back up or they would go over and have a side

bar, and that would be that.

Q. When was the first time that you learned, strike that. Were

there times where you had learned what the discussions were in

chambers?

A. When my lawyer came out and told me what they w[ere],

you know, speaking of.

Q. And were there times where the [trial c]ourt would ask you

questions on the record regarding the discussions that they had

behind closed doors?

A. Yes.

N.T., 9/27/21, at 98-99 (emphasis added).

Trial counsel confirmed he asked Appellant the “question regarding the

fact that he did not, unlike his codefendant [Tyrone Fuller], go running to the

district attorney looking for some sort of deal[.]” Id. at 13. Appellant testified

that Tyrone Fuller’s trial testimony was “very crucial.” Id. at 103.

Nonetheless, Appellant stated that he was “thrown for a loop” when trial

counsel asked Appellant whether he “went running to the DA's office.” Id. at

106.

The Commonwealth emphasizes that Appellant’s argument pertains not

to his Fifth Amendment right to remain silent, but “whether trial counsel was

ineffective for asking Appellant whether he ‘went running to the DA’s Office to

ar

cooperate. Commonwealth Brief at 5. The Commonwealth correctly

observes that the PCRA court’s analysis is “whether trial counsel’s action was

unreasonable and rendered his representation ineffective.” Id. at 6.

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It bears repeating that the “PCRA court’s credibility findings are to be

accorded great deference, and where supported by the record, such

determinations are binding on a reviewing court.” Commonwealth v.

Treiber, 21 A.3d 435, 444 (Pa. 2015) (citation omitted).

As to trial counsel's strategy:

When assessing whether counsel had a reasonable basis for his

act or omission, the question is not whether there were other

courses of action that counsel could have taken, but whether

counsel’s decision had any basis reasonably designed to effectuate

his client’s interest ... this cannot be a hindsight evaluation of

counsel’s performance, but requires an examination of “whether

counsel made an informed choice, which at the time the decision

was made reasonably could have been considered to advance and

protect [the] defendant’s interests.” Our evaluation of counsel’s

performance is “highly deferential.”

Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016) (citations

omitted).

Here, the PCRA court found “the question asked by [Appellant’s] counsel

was part of his reasonable trial strategy, and [Appellant] suffered no prejudice

as a result.” PCRA Court Opinion, 12/20/21, at 43-44. After explaining its

rationale, id. at 44-46, the court continued:

Even if the claim had arguable merit, the [c]Jourt first finds

that counsel’s question was part of a reasonable trial strategy: to

discredit the testimony of Tyrone Fuller and to contrast Fuller’s

behavior with [Appellant’s]. Counsel explained:

You know, naturally, we’re trying to drive the point

home. We were, it was difficult because Fuller didn’t

testify, so, and Leo didn’t testify, so we didn’t have

confederate testimony, co-confederate testimony in

the second trial. So in an effort to really try to amplify

that fact that all of these cooperatives were

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proactively seeking consideration and, you know,

special consideration for their testimony and

cooperation, I really wanted to drive that point home,

[that] we weren’t among those that, that had

anything to hide or anything to prove, so, or anything

to gain, so yeah, but obviously, I asked the question

in the way that I did.

[W]as I horribly bothered by it? No, because it was

true [that Appellant] didn’t go running to the District

Attorney’s Office like the other individuals asking for

a deal, and I believe I presented to the jury in the

context of, you know, he had nothing to contribute

because he was not involved, and that was the

implication.

N.T., PCRA Hearing, 9/27/2021, at 38, 50; id. at 57-59, 61-62

([trial counsel] explaining the overall trial strategy of emphasizing

Fuller’s culpability), id. at 66 ([trial counsel] explaining that he

asked the question “to amplify for the jury [Appellant’s] steadfast

position that he was not involved and wasn’t about to take a deal

unlike Mr. Fuller and admit to something he didn’t do”), id. at 70,

73 (agreeing that asking the question was part of his trial strategy

and that there was a tactical reason to ask it). Counsel’s

explanation for his strategy is consistent with his line of

questioning at trial, where [Appellant] was asked numerous

questions to distance and distinguish [Appellant] from Fuller, to

contrast Fuller’s motive with [Appellant’s] lack of motive. E.g.,

N.T. Trial, Vol. XII, 2/28/2017, at 260-68; N.T. Trial, Vol. XIII,

3/1/2017, at 17-18, 23-24, 29-38, 48-56, 66-75. Because

[Appellant] testified, the Commonwealth could thus attempt to

impeach [Appellant’s] credibility by referring to his prearrest

silence, and it is also part of a reasonable trial strategy to

preemptively introduce this information on direct examination.

Cf. Commonwealth v. Pursell, 555 Pa. 233, 268-69, 724 A.2d

293, 311 (1999) (finding a reasonable strategic basis to introduce

a testifying defendant’s crimen falsi convictions on _ direct

examination).

Id. at 46-47.

The PCRA court further found:

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The reality is that the evidence of [Appellant’s] guilt in this case

was overwhelming[.] [Appellant] has been convicted by two

unanimous juries, and there is no reason to think that his

conviction was the result of his trial counsel’s comparison of

Tyrone Fuller’s self-interested action in seeking a plea agreement

with [Appellant’s] continued assertion that he was not involved.

Id. at 48. The court concluded the testimony at the PCRA hearing “from both

trial counsel and [Appellant] make it abundantly clear that, although the

specific form of the question may not have been proposed to [Appellant] prior

to its asking, the substance of the question was well in line with the general

trial strategy contemplated by both trial counsel and [Appellant].” Id. at 50.

The record supports the PCRA court’s determination that Appellant was

not prejudiced, nor was trial counsel ineffective. The PCRA court’s discussion

of additional issues provides context for our disposition, and we specifically

adopt the PCRA court’s reasoning regarding the issues presented on appeal.

See PCRA Court Opinion, 12/20/21, at 44-50. Accordingly, we adopt the PCRA

court’s December 20, 2021 opinion in affirming the denial of relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Es

Prothonotary

Date: 09/12/2022

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IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA 3: NO. CP-04-CR-133-2013

Vv.

MARLIN KELLY,

DEFENDANT

TESLA, J. JANUARY 13, 2022

Pa.R.A.P. 1925(a) Opinion

Defendant in the above-captioned case has appealed this Court's December 20. 2021

order denying his petition under the Post Conviction Relief Act (PCRA). The Court did not

order Defendant to file a concise statement of errors complained of on appeal. The Court has

y one of Defendant's PCRA claims im its

December 20, 2021 opinion, which is attached and incorporated by reference. The Superior

Court's attention is respectfully directed thereto,

The Beaver County Clerk of Courts is directed to file the record of these proceedings

with the Superior Court of Pennsylvania.

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IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA 3: NO. CP-04-CR-133-2013

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MAREFN KELLY,

DEFENDANT

JANUARY 13, 2022

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Defendant i the above-captioned case has appealed this Court’s December 20. 2021

order denying his petition under the Post Conviction Relief Act (PCRA). The Court did not

order Defendant to file a concise staiemeiit

explained its reasons for denying each and every one o

December 20, 2021 opinion, which is attached and incorporated by reference, The Superior

Court’s attention is respectfully directed thereto.

The Beaver County Clerk of Courts is directed to file the record of these proceedings

with the Superior Court of Pennsylvania.

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IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY

PENNSYLVANIA

ENS fa YSN as

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA : NO. CP-04-CR-133-2013

Vv,

MARLIN KELLY,

DEFENDANT

TESLA, J.

OPINION

J. INTRODUCTION

Defendant was convicted after a jury trial of one count of second degree murder, one count

of second degree murder of an unborn child, and one count of conspiracy to commit robbery.

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appeal, the Superior Court affirmed the convictions. The Supreme Court then declined to grant

Defendant’s request for allocatur. Defendant now requests post-conviction collateral relief, raising

eighteen separate issues. For the reasons stated in this Opinion, Defendant’s issues are contrary to

the record and without any merit. Because Defendant’s issues are without merit, his request for

post-conviction collateral relief is denied.

Il. FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case are presented in great detail in the Court’s

Opinion entered on October 25, 2017. Due to the numerous issues raised by Defendant and the

gravity of this case, and for the convenience of any person reviewing this case, the Court will again

reproduce here the facts and procedural history previously provided.

DECEMBER 20, 2021

This case was first tried in August of 2014. The jury retumed a verdict on

August 26, 2014, finding Defendant guilty of one count of second degree murder,

one count of second degree murder of an unborn child, and one count of conspiracy

to commit robbery. The jury found Defendant not guilty of one count of robbery.

A sentencing hearing was held on September 26, 2014. At the sentencing hearing,

Defendant was sentenced to serve the mandatory sentence of life imprisonment on

the count of second degree murder, the mandatory sentence of life imprisenment

on the count of second degree murder of an unbom child, and a sentence of eight

to twenty years on the count of conspiracy to commit robbery, all sentences to run

concurrently.

On September 29, 2014, Defendant filed a Motion for Post-Sentence Relief,

claiming that the evidence was insufficient to support his convictions, that the

verdict was against the weight of the evidence, and that the Court erred in refusing

to excuse for cause three specific jurors, On February 6, 2015, argument was heard

from defense counsel and the Commonwealth on Defendant’s Motion for Post-

Sentence Relief. On February 9, 2015, the Court entered an Order denying

Defendant’s Motion for Post-Sentence Relief. Defendant filed a Notice of Appeai

on February 24, 2015.

On February 8, 2016, the Superior Court reversed Defendant’s conviction

and remanded this case for a new trial based upon this Court’s denial in jury

selection of one of Defendant's challenges for cause. Commonwealth v. Kelly, 134

A.3d 59 (Pa. Super. 2016). The Commonwealth filed an Application for

Reargument with the Superior Court, which was denied on April 11, 2016. The

Commonwealth then filed a Petition for Allowance of Appeal with the Supreme

Court, which was denied on September 27, 2016. On October 20, 2016, the appeal

process having concluded and the case having been remanded, the Court entered an

Order scheduling Defendant’s new trial.

Jury selection in Defendant's new trial commenced on February 13, 2017

and the trial began February 15, 2017. Defendant was tried at his new trial on

charges of second degree murder, second degree murder of an unbom child, and

conspiracy to commit robbery. The testimony and other evidence presented at the

second trial was substantially the same as what was presented at the first trial. The

former testimony of James Leo from the first trial was admitted at the second trial

because James Leo was deceased at the time of the second trial. Additionally, the

former testimony of Tyrone Fuller from the first trial was admitted at the second

trial because he refused to testify at Defendant's second trial.

... [T]he Court provides the following detailed narrative of the facts.

Conekia Finney, known to her family and friends as “Coco,” lived with her fiancé,

Stephen Murray, in an apartment on Merchant Street in Ambridge, Pennsyivania.

Stephen Murray was a heroine dealer whose street name was “Smoke.” At the time,

Conekia had been dating Stephen for about a year and was seven months pregnant

with the couple’s unborn daughter, Sekiah. In the evening on October 28, 2012,

Conekia called her mother, Elaine Finney, to come and pick her up from the

2

coupie’s apartment so that she could get some food. Elaine arrived and parked her

car across the street from the apartment before honking the horn. Stephen gave

Conekia three dollars to pay for gas. Conekia, who was wearing Stephen's hoodie,

said goodbye to Stephen’s brother, Herbert Murray, who was also a heroine dealer

and went by the name “Caboose.” As Conekia opened ihe door to leave the

apartment, a gunman fired a single shot from a black Springfield Armory XD .45

caliber handgun through the open doorway, striking Conekia in the chest. Stephen

and Herbert calied 911. Stephen and Herbert could be heard yelling on the

recording of the 911 call and stating that it was “Twin,” the street name for

Defendant, and “Diego,” the street name for Tyrone Fuller. N.T. 2/15/17, at 148.

Although first responders attempted to provide first aid at the scene, Conekia died

as a result of the gunshot wound, and her unborn child Sekiah died as a resuit of

Conekia's death,

Leading up to the homicides, Tyrone Fuller and Defendant had been selling

heroin out of the house of Dana Camp and Bradley LaVelle, on Park Road in

Ambridge. Stephen and his other brother Juan Murray, whose street name was

“Fats,” had at one time also sold drugs at Camp's house. At one point, prior to the

homicides, a meeting was held in Camp’s home at which it was decided that

Stephen was to be excluded from selling drugs there. Additionally, Juan had at

times also been excluded from selling drugs there as punishment for allowing

heroin addicts to be there.

Defendant knew Juan from school growing up. Juan and Defendant

purchased bags of heroin from a cousin of Juan’s known as “Days.” These bags of

heroine were cach stamped with the words, “411 Gangster.” Juan held some of

Defendant’s heroin from that purchase at his house. In the week or two leading up

to the homicides, Juan’s paramour, Gigi, contacted the police regarding a domestic

violence incident, which resulted in Juan being arrested. Defendant and Fuller came

to Juan’s home to recover the heroin kept there, but found that it was missing.

Herbert had already taken the bags of heroin stamped with “411 Gangster” to

Stephen's house. Juan testified that he called Defendant and Fuller while he was in

jail, and that Fuller sounded “pissed,” and that Defendant sounded “peeved.” N.T.

2/27/17, at 160, 115-16, 233-34,

During the investigation, the Ambridge Police recovered the black

Springfield Armory XD .45 caliber handgun which was used to murder Conekia

Finney. Frank Brendle, Jr., a heroin addict, had previously stolen the gun from

Robert Schultz and sold it to Fuller in exchange for heroin. Fuller's testimony was

that Defendant was insistent on buying the Springfield Armory XD .45 caliber

handgun from him, that Defendant kept asking, that Fuller soid it to Defendant, and

that Defendant had the weapon at the time of the murder. Cmwith. Ex, 144 ({N.T.

8/19/14, at 39-44; N.T. 8/21/14, at 121-22, 140-41}. The Commonwealth presented

a number of photographs taken by Defendant on his celiphone that portrayed

Defendant in possession of the murder weapon. Juan Murray also testified that

Defendant was excited about the gun, that Defendant purchased it from Fuller, and

that Defendant had it several days before Juan was arrested because of the domestic

dispute. N.T, 2/27/17, at 144-46, 239.49,

On October 28, 2012, the day of the homicides, Fuller contacted Defendant

and asked him to come over to Camp's home. Defendant was eventually driven

from Pittsburgh by his wife to meet Fuller at Camp’s home in Ambridge. When

Defendant arrived, Fuller was complaining about Stephen Murray “stepping on his

toes,” and otherwise interfering with his drug business. Leaving Dana Camp and

Brad LaVelle downstairs, Fuller and Defendant went to an upstairs bedroom to

discuss the situation.

Fuller’s testimony was that an understanding was reached that they would

“check” Stephen Murray, meaning they would assault and rob him if he had

anything. Cmwlth. Ex. 144 (N.T. 8/19/14, at 120-26). Fuller said that Defendant

agreed with the plan to assault and rob Stephen. Dana Camp testified that she could

hear voices talking upstairs, She further testified that, although she could not hear

what they said upstairs, after they came downstairs, Defendant agreed with Fuller

that something needed to be done about Stephen Murray. N.T. 2/16/17, at 121-125,

Following their discussion in the upstairs room, James Leo, a heroin addict who

performed driving services for Fuller and Defendant in exchange for heroin, was

called. Fuller asked Leo to show them where Stephen Murray lived, and in

exchange Fuller would give him money to buy heroin from Stephen which Leo

could then keep. After pointing out the apartment to them, Leo then drove them to

Maplewood Aveniie, Fuller then had Leo make a call to Stephen te purchase heroin.

Fuller had Leo place the phoné on speaker so that everyone in the car, Leo, Fuller,

and Defendant, could hear. Cmwlth. Ex. 143 (N.T. 8/15/14, at 45-49); Cmwith, Ex,

144 (N.T, 8/19/14, at 133-36), After the call was made, Fuller and Defendant exited

the car. Leo’s testimony was that Fuller said they were going to “beat” Stephen,

which Leo believed meant they were going to rob him. Cmwlth, Ex. 143 (N.T.

8/15/14, at 50, 155-65).

Leo went to purchase the heroin from Herbert. The paper bags containing

the heroin were each stamped with the words, “411 Gangster,” the same label that

was stamped on the heroin bags which had been purchased earlier by Defendant,

which had been left at Juan’s home, and which were later taken by Herbert. Fuller’s

testimony was that he and Defendant walked down the street and hid on the porch

of a house on the way to Stephen's apartment, planning to take Stephen Murray by

surprise. Cmwlth. Ex. 144 (N.T. 8/19/14, at 137-38, 143-44), After waiting some

time, the two then approached Stephen's apartment itself.

Stephen's apartment was on the second story of an apartment building,

which was immediately adjacent to another apartment building. A single narrow

flight of stairs ran up between the two buildings. Stephen’s apartment could be

accessed either by descending those stairs from above the apartment, or by

ascending those stairs from below the apartment, After approaching the apartment,

Fuller said that the two tried to look inside through the window, but could not see

past the blinds or curtains, and so they waited behind a comer near the top of the

4

stairway leading down to the apartment. After waiting for a period of time the two

headed down the stairs toward the front of the apartment building, intending to

leave because no one arrived.

Upon reaching the foot of the stairs, however, they heard someone enter the

apartment from the top of the stairs. Fuller’s testimony was that Defendant then-ran

up the stairs toward the apartment, with Fuller following. Fuller stated that

Defendant slipped on the wooden landing in front of the apartment door because it

had been raining, and that simultaneously as Defendant tried to stand back up, the

door opened and Defendant lifted the Springfield Armory XD .45 caliber handgun

and fired into the doorway. Cmwlth. Ex. 144 (N.T. 8/ 19/14, at 165-67; NLT.

8/21/14, at 20-21),

Defendant then ran past Fuller off the landing and down the stairs, and

Fuller followed, When Fuller asked him what happened, Defendant replied, “I think

he checked,” and “I could teli by the way he fell,” which Fuller understood to mean

that Defendant had killed someone inside. Cmwith. Ex. 144 (N.T. 8/19/14, at 167-

69, 186-87; N.T. 8/21/14, at 25-26). Fuller then testified that ihey ran back toward

Camp’s home and that on the way they removed the magazines from the handguns

which they were carrying. They each threw the handguns and magazines over a

fence and into a tow yard. Elaine Finney testified that, after hearing a loud bang

which she believed at the time to be a door slamming, she saw what she thought

were two children, because of the way they were running, come down the stairs and

run across Merchant Street. They were each wearing black hoodies. She described

one hoodie as having a white emblem in the middle, which the evidence later

showed had been worn by Defendant. N.T. 2/15/ i?, at 238: Cmwlth. Ex, 37.

Defendant and Fuller arrived at Camp's home. Leo then arrived after them.

Leo drove them toward Pittsburgh, and they stopped for fuel at a BP gas station.

Fuller gave Leo twenty dollars to buy gas, and Defendant told his wife over the

phone to pick them up at the McDonald's in Bellevue. Upon arriving at the

McDonald's, Fuller and Defendant got in Defendant’s wife's blue Dodge Magnum

van, and they all drove to a bar. Defendant then left the bar with his wife and Fuller

called someone to pick him up. Following an investigation by Chief Mann and the

Ambndge Police Department, Fuller and Defendant were apprehended three days

later on October 31, 2012. Fuller was arrested in Monessen and Defendant was

arrested in Turtle Creek.

Defendant’s second trial concluded on March 6, 2017, when the jury

retumed a verdict of guilty on one count of second degree murder, one count of

second degree murder of an unbor child, and one count of conspiracy to commit

robbery. On April 20, 2017, the Court again sentenced Defendant to serve the

4

mandatory sentence of life imprisonment on the count of second degree murder, the

mandatory sentence of life imprisonment on the count of second degree murder of

an unborn child, and a sentence of eight to twenty years on the count of conspiracy

to commit robbery, all sentences to run concurrently.

Rule 1925(a) Opinion, 10/25/2017, at 1-8 (footnotes omitted).

After Defendant was convicted and sentenced following his second trial, he filed a Motion

for Post-Sentence Relief, challenging the weight and sufficiency of the evidence. The Court denied

Defendant’s Motion, Defendant filed a Notice of Appeal on September 7, 2017. On May 17, 2018,

the Superior Court affirmed Defendant’s convictions, concluding that the evidence was sufficient

and that the jury’s verdict was not against the weight of the evidence. Commonwealth vy. Kelly,

No, 1301 WDA 2017, 2018 WL 2250768 (Pa.Super. May 17, 2018) (memorandum). On June 18,

2018, Defendant filed a Petition for Allowance of Appeal. On November 15, 2018, the Supreme

Court entered a per curiam Order denying Defendant’s Petition.

On August 5, 2019, Defendant filed pre se a Motion for Post Conviction Co

(hereinafter, “PCRA Petition”). In his PCRA petition, Defendant raised eleven issues. The Court

entered an Order appointing counsel after a preliminary review of the issues raised by Defendant.

On December 23, 2019, Defendant’s counsel filed an Amendment to Pro Se Motion for Post

Conviction Collateral Relief and Motion to Schedule Hearing (hereinafter, “First Amended PCRA

Petition”). The Amended PCRA Petition preserved Defendant’s eleven pro se issues and raised

three more, for a total of fourteen separate issues. On February 24, 2020, the Commonwealth filed

an Answer, opposing Defendant’s requested relief. This case then experienced some delays as a

result of the COVID-19 nandemic.'

Defendant’s first appointed counsel ultimately withdrew from representation after

obtaining employment with the Public Defender’s office. The Court then appointed current PCRA

‘For example, a pretrial conference scheduled for March 25, 2020 was canceled as a result of the COVID-19 pandemic

in accordance with the Supreme Court of Penmsyivania’s per curiam Order declaring a statewide Judicial emergency.

In re: General Statewide Judicial Emergency, Nos. 531 and 532 Judicial Administrative Docket (Pa. Mar. 18, 2020)

(Per Curiam Order).

counsel. On September 15, 2021, current counsel then filed a Second Amended Motion for Post

Conviction Collateral Relief (hereinafter, “Second Amended PCRA Petition”). The Second

Amended PCRA Petition retained Defendant’s eleven pro se issues, retained prior PCRA counsel's

additiona] three issues, and raised four more issues, for a total of eighteen separate claims of

ineffective assistance of counsel asserted in this PCRA proceeding.

The Court held an evidentiary hearing on September 27, 2021. At the hearing, the Court

heard testimony from Defendant’s trial counsel and from Defendant himself. The Court ente

an order directing a briefing schedule. Defendant filed his brief on November 29, 2021. At a

telephone conference with counsel, the Court directed the Commonwealth to file its brief no later

ch

than December 27, 2021. Based on thorough review of the record of the trial and PCRA hearing

in this case, as well as the well-developed arguments of Defendant in his brief, the Court finds that

there is a sufficient record to enter an opinion prior to the filing of the Commonwealth’s brief.

aised, the extensive record in this case, the testimony

heard at the PCRA hearing, and the arguments of counsel, the Court concludes that each of

Defendant’s issues are contrary to the record and devoid of any merit. Becau 1 fen,

claims arc framed as claims of ineffective assistance of counsel, the Court will first consider the

law that applies to such claims. The Court will then address each of Defendant’s specific issues in

fendant in his pro se PCRA Petition,

tum, beginning with the eleven issues originally

turning next to the three additional issues raised in Defendant’s First Amended PCRA Petition,

and finally addressing the four additional issues raised in Defendant’s Second Amended PCRA

Petition.

i. ANALYSIS

A. To prove ineffective assistance of counsel, a defendant must

plead and prove by a preponderance of the evidence that his claim

is of arguable merit, that his counsel had no reasonable strategic

basis for his action or inaction, and that he was prejudiced as a

result.

Each of Defendant’s eighteen claims assert that his trial counsel was ineffective, Before

claim, ihe Court reviews the applicable law conceming claims of inef-

fective assistance of counsel.

A defendant has the burden of pleading and proving by a preponderance of the evidence

that the claims he is asserting are eligible for relief under the Post Conviction Relief Act. 42 Pa.C.S.

§ 9543. The Act states that a defendant must plead and prove “[i]neffective assistance of counsel

which, in the circumstances of the particular case, so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. §

9543(a)(2){ii). The statutory standard under the Act has been held to be synonymous with the

constitutional standard for ineffective assistance of counsel. Commonwealth v. Kimball, 555 Pa.

299, 310-13, 724 A.2d 326, 331-33 (1999). Accord, ¢.g., Commonwealth v, Bickerstaff, 204 A.3d

988, 992-93 (Pa. Super. 2019).

Itts well established that counsel is presumed to have rendered effective assistance.

Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1117 (2012). To obtain

relief on a claim challenging counsel's performance, a PCRA petitioner must satisfy

the performance and prejudice test announced in Strickland v. Washington, 466

ULS. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we apply

the Strickland test by examining whether: (1) the underlying claim has arguable

merit; (2) counsel lacked a reasonable basis for his actions or failure to act; and (3)

the petitioner was prejudiced by counsel's deficient performance such that there is

a reasonable probability that the result of the proceedings would have been different

absent counsel's error or omission. Commonwealth v, Pterce, 515 Pa. 153,527 A.2d

973, 975 (1987).

A petitioner's failure to satisfy any prong of the ineffectiveness test is fatal to the

claim. Commonwealth v, Wholaver, 644 Pa. 386, 177 A.3d 136, 144 (2018). We

8

are not required to analyze the elements of an ineffectiveness claim in any particular

order; ifa claim fails under any prong of the ineffectiveness test, the Court may

proceed to that element first. Sepu/veda, 55 A.3d at 1117-18. Moreover, counsel

cannot be deemed ineffective for failing to raise a meritless claim. Conynonwealth

v. Treiber, 632 Pa, 449, 121 A.3d 435, 445 (2015).

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019).

Thus, counsel is presumed to be effective and a defendant must plead and prove by a pre-

ponderance of the evidence: (1) that his claim regarding counsel's failure has arguable merit, (2)

that counsel had no reasonable basis for the failure, and (3) prejudice as a result. Id. All three

elements must be pied and proven, and the failure to plead or prove any element results in the

failure of the claim. Id. The Court next addresses seriatim each of Defendant’s specific claims of

ineffective assistance of trial counsel.

B. Defendant’s counsel was not ineffective for not requesting a

jury instruction concerning accomplice testimony.

First, Defendant claims that his counsel was ineffective for failing to request a “corrupt and

polluted source” jury instruction. That is, Defendant claims that the Court failed to instruct the jury

conceming accomplice testimony. See, e.g., Commonwealth v. Wholaver, 177 A.3d 136, 165 (Pa.

2018).

_[Ajn instruction is required when an accomplice’s testimony implicates the defend-

ant; the instruction informs the jury “that the accomplice is a-corupt and polluted

source whose testimony should be viewed with great caution." Commonwealth y.

Smith, 609 Pa. 605, 17 A.3d 873, 906 (2011) (quoting Commonwealth v. Chmiel,

536 Pa, 244,639 A.2d 9, 13 (1994}). This instruction is necessary if the trial evi-

dence is sufficient to present an inference that a Commonwealth witness was an

accomplice. Smith, 17 A.3d at 906. |

i

It is true, as Defendant claims, that the Court is generally required to give a cautionary

instruction where an accomplice’s testimony implicates the defendant on trial. But see id. at 166

(defendant not prejudiced by trial court’s failure to give required polluted source instruction), In

the present case, however, the record plainly shows that the Court did indeed give such an instruc-

tion. N.T., Trial, Vol. XIV, 3/2/17, at 154-56,

Now, I've just provided you an instruction explaining what an accomplice

is. When a Commonwealth witness is an accomplice, his testimony has to be judged

by special precautionary rules. Experience shows us that an accomplice when

caught may often try to place blame falsely on someone else, He may testify falsely

in hope of obtaining favorable treatment or some other corrupt or wicked motive.

On the other hand an accomplice may be a perfectly truthful witness,

The special rules that I will give you are meant to help you distinguish

between a truthful and false accomplice testimony.

In view of the evidence of Tyrone Fuller's criminal involvement, you must

regard him as an accomplice in the crime charged and apply the special rules to his

testimony.

Again, an accomplice is a person who knowingly and voluntarily cooperates

with or aides another in the commission of a crime,

These are the special rules that apply to accomplice testimony.

First, you should view the testimony of an accomplice with disfavor

because it comes from a corrupt and polluted source.

Second, you should examine the testimony of an accomplice closely and

accept it only with care and caution.

Third, you should consider whether the testimony of an accomplice is

supported in whole or in part by other evidence.

Accomplice testimony is more dependable if it's supported by independent

evidence, However, even if there is no independent supporting evidence, you may

still find the Defendant guilty solely on the basis of an accomplice testimony if after

using the special rules I just told you about you are satisfied beyond a reasonable

doubt that the accomplice testified truthfully and the Defendant is guilty.

id. (emphasis added).

A reading of the transcript shows that the Court gave precisely the instruction Defendant

complains was not given. Defendant's claim is clearly contrary to the record, and he has failed to

prove that his claim is even of arguable merit. His counsel was therefore not ineffective. Because

his counse] was not ineffective, Defendant’s claim has no merit and is denied.

C. Defendant’s counsel was not ineffective for not requesting a

jury instruction concerning mere presence of an alieged

accomplice

Second, Defendant claims that his counsel was ineffective for failing to request a “mere

presence” jury instruction. That is, Defendant claims that the Court failed to give an instruction

¢ found to be an accomplice merely because he is present at the scene and

has knowledge of the incident. See, ¢.g., Commonwealth y, Henderson, 249 Pa.Super. 472, 487,

378 A.2d 393, 400 (Pa.Super. 1977) (“We, therefore, hold that it was reversible error for the court

© refuse appellant's tendered instruction that mere presence and knowledge of the commission of

the offense without some evidence of an agreement to solicit, aid, or promote its commission

would be insufficient to find appellant guilty of being an accom plice or conspirator.”)

Again, however, Defendant's claim is contradicted by the record. As with the corrupt and

polluted source instruction, the Court also instructed the jury that mere presence at the scene does

t mean that a person is an accomplice, N.T., Trial, Vol. XIV, 3/2/17, at 154,

it is important te understand that a person is not an accomplice merely

because he is present when the crime is committed or knows that the crime is

being committed.

A person is an accomplice, a person who is an accomplice will not be

responsible for the crime if, and only if, the person before the other person comunits

the crime either stops his own efforts to promote or facilitate the commission of the

crime and either wholly deprives his previous efforts of effectiveness in the

commission of the erime or gives timely warmin g to the law enforcement authorities

or otherwise makes a proper effort to prevent commission of the crime.

Id. (emphasis added).

The transcript shows that the Court clearly informed the Jury that mere presence alone does

not render a person an accomplice. Defendant’s claim is therefore contrary to the record, and he

1]

again fails to demonstrate even arguable merit. His counsel was therefore not ineffective. Because

his counsel was not ineffective, Defendant’s claim has no merit and is denied.

D. Defendant’s counsel was not ineffective for not requesting an

alibi instruction.

Third, Defendant claims that his counsel was ineffective for failing to request an alibi

instruction. Defendant asserts that that his counsel presented an alibi defense, and that his counsel

was ineffective for not requesting a jury instruction conceming alibi. Again, Defendant’s claims

are belied by the record.

A defendant has the burden of notifying the prosecution of its intent to present an alibi

defense, Pa.R.Crim.P. 567. Accord Commonwealth v. Poindexter, 435 Pa.Super. 509, 525, 646

A.2d 1211, 1218 (1994) (“The right to present evidence of an alibi and to receive a jury instruction

therefrom, however, is not absolute. In order to obtain this right, a defendant must comply with

the notice requirement set forth in. . . the Pennsylvania Rules of Criminal Procedure.”)., In this

case, a notice of alibi defense was never filed.”

Additionally, for a defendant to be entitled to request an alibi instruction, some evidence

must have been submitted at trial to support the instruction. E.g., Commonwealth v. Kolenda, 544

Pa. 426, 432-34, 676 A.2d 1187, 1190-91 (1996) (evidence that the defendant “was one floor

below the crime scene, does not render it physically impossible for him to have committed the

crimes” and “merely testified that he did not enter the second floor apartment and did not attack

[the victim]” did “not. constitute an alibi but [were] a mere denial of guilt.”) (emphasis in original).

Even considering Defendant’s own testimony, no facts were ever presented that would

? Defendant has never claimed that his counsel was ineffective for failing to fite a notice of alibi.

12

than the scene involved and so removed therefrom as to render it impossible for him to be the

guilty party.” Id, at 431, 676 A.2d at 1190. Rather, Defendant testified that he was half-way up the

steps outside the apartment when his co-conspirator shot and killed the victims. N.T., Trial, Vol.

he

1

,

XII, 3/1/17, at 53-54, Defendant's own testimony placed him directly at the crime scene at

time the crimes occurred. Indeed, he admitted to fleeing the scene with Tyrone Fuller immediatel y

after the shooting. N.T., Trial, Vol. XII, 3/1/17, at 54-55, Providing an alibi instruction based

upon these facts and circumstances would have been not only improper, because an alibi defense

does not apply to such facts, but would have created a great risk of misleading the jury.

Even if Defendant had not been present at the crime scene, an instruction concerning alibi

o

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_

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A

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would have been inapposite based Upon ine charges he was facing. Defendant was charged with

felony murder and conspiracy to commit robbery. Neither of those charges require a defendant to

be physically present at the crime scene when the crime occurs in order to be held crimina

Rather, the defendant may be held vicariousiy liable for the criminal acts of his accomplice and

co-conspirator. 18 Pa.C.S. § 306 (concerning liability of accomplices); 18 Pa.C.S. § 903

(concerning liability of conspirators); Commonwealth y,

1228, 1238 (2004) (“Once the trier of fact finds that there was an agreement and the defendant

intentionally entered into the agreement, that defendant may be liable for the overt acts committed

in furtherance of the conspiracy regardless of which co-conspirator committed the act.”). In this

case, the jury had the ability to find Defendant guilty whether he, or his accomplice Tyrone Fuller,

was the principal who shot and killed the victims. The jury was equally able to find Defendant

uilty as a conspirator to robbery based upon the testimony given at trial regarding Defendant’s

agreement to a conspiracy to commit robbery, and Tyrone Fuller’s subsequent actions to effectuate

that robbery.

Furthermore, Defendant has not demonstrated any prejudice. Rather, he plainly benefited

from not asserting an alibi defense or requesting an alibi instruction. The Commonwealth

requested an instruction that the jury should take an adverse inference against Defendant because

of his failure to produce a witness who he testified to being with on the night of murders; the Court

denied the Commonwealth’s request based upon defense counsel’s argument that alibi was not at

issue. N.T., Trial, Vol. XIII, 3/1/17, at 248-265 (Defendant’s attorney opposing the requested

adverse inference instruction, advising the Court that h

somewhere else at the time the crime was committed, and advising the Court that he was not

requesting an alibi instruction); N.T., Trial, Vol. XTV, 3/2/17, at 3-7 (Court ruling that it would not

1 7 jaws ranean o, wy thn Cress aeues Lanaies aMh! «5 +

give the adverse inference instruction requested by the Commonwealth because alibi was not at

issue)

Accordingly, the record makes plain that no alibi instruction would have been proper under

the facts and circumstances of this case, and Defendant has failed to prove that his claim has

arguable merit or that he has been prejudiced. Defendant's attorney argued against alibi in order

to prevent an adverse inference instruction agait fendan|

witness. The Court ruled, based on counsel’s argument, that it would not give the adverse inference

instruction. Defendant has therefore also failed to prove that his counsel did not have a reasonable

ions. i short, Defendant has failed to prove that his counsel was

ineffective, Because his counsel was not ineffective, Defendant's claim has no merit and is denied.

E. Defendant’s counsel was not ineffective for not objecting to the

prosecution’s statement concerning the length of Tyrone Fuller’s

sentence.

Fourth, Defendant claims that his counsel was ineffective for failing to object to allegedly

improper statements by the prosecution. Specifically, Defendant claims that the assistant district

attomey misstated Tyrone Fuller’s sentence as being thirty years of imprisonment, and claims that

his co-conspirator’s sentence was really thirteen to twenty-six years followed by four years of

probation. Defendant asserts this statement was intended to cause the jury to impose a harsher

sentence on himself. Defendant’s claim is again without any support in the record. Defendant's

co-conspirator, Tyrone Fuller, was sentenced to serve a minimum term of imprisonment of thirteen

years, and a maximum term of imprisonment of thirty years. Commonwealth v. Fuller, No. CP-

04-CR-134-2013, (Sep. 24, 2014) (sentence order), Thus,

statements were correct, and Defendant’s claim is incorrect.

Additionally, the Court notes that a jury does not impose sentence other than in a death

Rather, the Court is charged with the solemn obligation of imposing an individualized

sentence in a non-capital case. “[F]irst degree murder is the only crime for which the General

”

Assembly has allowed the jury to impose a sentence.” Commonwealth v. Raker

oN

14 A.2d 663, 680 (1992). See also Pennsylvania Suggested Standard Criminal Jury Instructions,

defendant guilty, it will become my responsibility as judge to fix the penalty.”). Thus Defendant

could not have been prejudiced as he asserts because the jury was never in a position to impose

sentence,

Defendant’s claim again is contrary to the record. Defendant has failed to prove that his

claim has any arguable merit. His counsel was therefore not effective. Because his counsel was

not ineffective, Defendant’s claim has no merit and is denied.

F. Defendant’s counsel was not ineffective for not objecting to the

prosecution’s presentation of evidence.

Fifth, Defendant claims that his counsel was ineffective for failing to object to other

allegedly improper statements by the prosecution. Specifically, Defendant claims that the

prosecution read only a portion of the statement of James Leo instead of his entire testimony. In

essence, Defendant is claiming that his counsel should have objected to the manner in which the

Commonwealth presented its evidence. The parties necessarily have some discretion, however, in

the manner in which they decide to present their evidence. “Attaining the system's goal of

wide discretion in the conduct of the trial and the presentation of evidence.” Imbler v. Pachtman,

424 U.S. 409, 426, 96 S.Ct. 984, 993 (1976). See also Commonwealth v. Barnett, 50 A.3d 176,

190 (Pa.

While Defendant claims thai the prosecution read only a portion of James Leo’s statement,

there is no requirement that the prosecution read an entire statement to the jury verbatim.

Regardless, the jury in this case did hear James Leo's entire prior recorde

N,T., Trial Vol. V1, 2/16/17; N.T., Trial Vol, VII, 2/17/17,

Defendant claims that the testimony of the witness, James Leo, was “rife with conjecture

this is alleged to have occurred. Defendant’s claim sounds in the nature of a claim against James

Leo’s credibility. Such a claim is a challenge to the weight of the evidence. Commonwealth v.

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Commonwealth's chief witness, Appellant's claim chailenges the weight, not the sufficiency, of

the evidence.”’).

Defendant’s counsel did challenge both the weight and sufficiency of the evidence on direct

appeal before the Superior Court, and both challenges were rejected by that Court and therefore

have been previously litigated. Thus he cannot be ineffective when he raised a challenge to the

weight and sufficiency of the evidence, and the evidence has been definitively held to have been

sufficient. In essence, Defendant is seeking to re-challenge these claims by framing them as claims

of ineffective assistance of counsel. A defendant cannot relitigate issues that have already been

decided, however, 42 Pa.C.S. § 9543(a)(3) (“To be eligible for relief under this

petitioner must plead and prove by a preponderance of the evidence . . . {t]hat the allegation of

error has not been previously litigated or waived.”).3

e that his claim has any arguable merit. The jury heard James Leo’s

entire testimony verbatim and the issue of the weight of the evidence was previously litigated on

direct appeal. Defendant further fails to identify in what way he has been prejudiced, Defendant

therefore fails to show that his counsel was ineffective. Because his counsel was not ineffective,

Defendant’s claim has no merit and is denied.

G. Defendant’s counsel was not ineffective for not objecting to the

prosecution’s cross-examination of Brad LaVelle

Sixth, Defendant claims that his counsel was ineffective for failing to object to the

prosecution’s questioning of Brad LaVelle. Defendant claims the assistant district attorney

behavior.” Defendant complains that Mr. LaVelle “was intimidated into saying he doesn’t know

about firearms” after previously testifying that he saw Defendant with a small gray nine millimeter

> Indeed, a challenge to the weight of the evidence standing alone is not even a cognizable claim under the Post

Conviction Relief Act. 42 Pa.C.S. § 9543(a)(2) (describing the types of claims for which relief may be granted).

17

The law places limitations on the conduct of a prosecutor, particularly where the conduct

“is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity

to convict the defendant,” or where it is “undertaken in bad faith to prejudice or harass the

defendant.” Commonwealth y, Virtu, 495 Pa. 39, 65, n. 7 (Pa. 1981) ( quoting Commonwealth v.

Starks, 490 Pa. 336, 341, 416 A.2d 498, 500 (1 980)), It has often been quoted that a district attorney

“may prosecute with eamestness and vigor — indeed, he should do so. But, while he may strike

hard blows, he is not at liberty to strike foul ones.” Berger v. United » 295 US. 78, 88, 55

S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Defendant’s claim of such improper conduct in this case,

however, lacks any factual support.

The Court presided over this case at trial, and did not at any time observe anything from

the assistant district attomey which could reasonably be characterized as physical intimidation,

yelling, or menacing behavior. There is nothing in the record that reflects anything o

N.T., Trial Vol. XT, 2/28/17, at 197-205, 211-213. Rather, the assistant district atiommey’s very

first question on cross-examination was, “Good afternoon, Brad. How are you?” Id, at 197-98. Mr.

never saw [Defendant] with a 9.mm that night, did you?” Id, Mr. LaVelle answered, “No, not that

night.” Id, Several questions later, the assistant district attorney asked, “You don’t know a lot about

Simply stated, there is nothing in the record that remotely supports Defendant’s claim of

menacing or intimidating behavior. As with his other claims, Defendant’s claim in this instance is

again without any support from the record. He fails to demonstrate a claim of arguable merit, and

fails to establish any form of prejudice. There was nothing objectionable in the Commonwealth’s

questions, and counsel was not ineffective for choosing not to object. Because his counsel was not

ineffective, Defendant’s claim has no merit and is denied.

H. Defendant’s counsel was not ineffective for not objecting to the

prosecution’s conduct during closing argument.

Seventh, Defendant claims that his counsel was ineffective for failing to object to the

assistant district attorney’s “theatrics” during closing argument. Defendant claims the assistant

district attorney “repeatedly slapped the juror podium, became verbally vulgar, and intimidating

toward jury [sic]. Throwing books of statements previously read into record and using obscene

language, ali during closing arguments,” Nothing in the record discloses any form of intimidation

toward the jury whatsoever. Defendant fails to identify one single prejudicial remark. Contrary to

Defendant’s assertions, the assistant district attorney’s argumenis constantly directed the jury to

consider the evidence at trial. N.T., Trial Vol. XIV, 3/2/17, at 113-140 (Commonwealth’s closing

argument},

Nothing in the law requires a prosecuting attorney to maintain a constant deportment of

insipid stoicism. Rather, an assistant district attorney is an advocate who is entitled to the use of

oratorical flair in presenting argument and in directing the jury to the evidence.

[Mjindful of our concomitant allowance of oratorical flair, we hold that

offense-centric statements generally are permissible. These are statements that

speak to the elements of the particular charges levelled against the defendant and

the evidence necessary to prove those elements at trial... The prosecutor must be

frec to argue that the facts of record establish every element of the crime charged,

and must be free to respond fairly to the arguments of the defense. Thus, we should

not preclude or condemn a prosecutor’s characterizations of the defendant that are

both based upon the record and that inherently inform elements of an offense at

issue, especially where the remarks constitute a fair response to defense counsel’s

argument.

Commonwealth v. Clancy, 192 A.3d 44, 65 (Pa. 201 8).

Defendant's conclusory assertion that the “[p]rosecutor deprived [Defendant] of a fair trial,

by distracting jury of their task by the theatric of an over-zealous prosecutor” is without any factual

support. Upon reviewing the record in this case, the Court finds nothing in the record to support

Defendant’s characterization of the Commonwealth’s closing argument. Nothing in the assistant

district attorney’s argument exceeded the reasonable bounds of oratorical flair. Nothing in the

argument attempted to divert the jury from the facts. Rather, the Commonwealth’s argument

repeatedly directed the jury to consideration o idence in the case.

Defendant's claim is again unsupported by the record. Defendant fails to raise a claim of

arguable merit and fails to indicate in what way he was prejudiced. His counsel was therefore no

sounsel was not ineffective, Defendant’s claim has no merit and is denied.

I. Defendant’s counsel was not ineffective for not objecting to the

prosecution’s questions of Brad LaVelle concerning potential bias.

Eighth, Defendant claims that his counsel was ineffective for failing to object to the

assistant district attormey’s questions of Brad LaVelle regarding who paid for his lunch that day.

Defendant asserts that counsel should have objected because the Commonwealth’s questioning

was “insinuating and suggesting counsel for appellant paid defense witness Brad LaVelle to testify

on behalf of defense. . .” The interaction occurred in the following context:

[BY ASSISTANT DISTRICT ATTORNEY]

Q. Okay. And you came here today, you'r

~ — om ?

that fair to say?

3

subpoenaed by the defense, is

A. Yes,

Q. And you come here at 10:30, and then where do you go, do you stay at

the courthouse?

A. Yeah, I did until lunchtime, and then | went down the street to get

something to eat, yes,

Q. Did you have money for that?

20

A. Yeah.

Q. How did you have money for that?

A. Colafeller (sic) gave me a few bucks to get something to eat.

Okay. I don't have any further questions.

THE COURT: Redirect.

REDIRECT EXAMINATION

BY MR. COLAFELLA:

Q. Brad, I gave you money for lunch; right?

A. Yes.

Q. Because you had to leave work to come down here; right?

A. Yes.

Q, Did I teil you, if 1 give you this money for lunch, you got to say whatever

I want you to say?

A. No, sir.

Q. Did you get paid when you testified for the Commonwealth, did you

receive a witness fee for testifying?

i”

Je

Na,

>

Q. Did you receive rides to court?

A. No.

N.T., Trial Vol. XII, 2/28/17, at 205,

“The credibility of a witness may be impeached by any evidence relevant to that

issue,

except as otherwise provided by statute or these rules.” Pa.R.E. 607(b). Accord Commonwealth v.

4

vidence io impeach the credibility of a witness is

admissible so long as it is relevant to that purpose and not otherwise barred.”); Commonwealth v.

Carson, 590 Pa. 501, 561, 913 A.2d 220, 254 (2006) (“Any evidence relevant to the impeachment

issue may be used against a witness, except that which is prohibited by the rules of evidence.’’).

21

A reading of the transeript plainly shows that the Commonwealth's cTOss-examination

related to Brad LaVelle’s potential bias in favor of Defendant based upon his attorney buying the

witness lunch. Such evidence is probative of the truthfulness of the witness’ testimony. It is

relevant and admissible. The brief questioning, as reproduced ahove in fu T, howeve

particularly highlighted or exaggerated. Further, as the record quoted above shows, while

Defendant’s counsel did not object to the questioning, he did immediately follow up the assistant

district attorney’s questions with examination directed towards clarifying the circumstances, and

LaVelle testified that he was not paid to testify for the defense. The jury was therefore able to

weigh the testimony accordin gly.

Recause the Commonwealth’s questioning was relevant impeachment evidence. Defendant

fails to raise a claim of atguable merit. Defendant also fails to establish any prejudice that resulted,

His counsel, who immediately took steps to clarify the circumstances through additional

refore not ineffective. Because his counsel was not ineffective, Defendant's

ne

claim has no merit and is denied.

Fuller’s guilty plea.

Ninth, Defendant claims that his counsel was ineffective for not objecting to evidence

concerning Tyrone Fuller’s guilty plea. Defendant also claims that his counsel was ineffective for

not requesting jury instructions conceming evidence of the guilty plea. The evidence of Tyrone

Fuller’s guilty plea, his cooperation with the Commonwealth's investigation, and his potential

sentence if he had not pled, were ali used by the defense to cross-examine him extensively and to

establish his favorable treatment, potential bias, and motive to lie. N.T. Trial, Vol. LX, 8/19/14, at

8; N.T., Trial, Vol. X, 8/20/14, 5-78. Additionally, Defendant himself testified that it was Foller

22

who shot and killed the victims. Thus, the evidence of Fuller’s guilty plea to murder was

corroborative of Defendant’s testimony, and was further used to impeach Fuller’s credibility.

Rather than being considered objectionable, evidence of a co-defendant’s plea agreement

has long been considered to be material exculpatory evidence which a defendant is entitled to know

about and to present to the Jury in order to impeach the testifying co-defendant, E.g..,

Commonwealth v. Johnston, 434 Pa.Super. 451, 461 (1994) (“We believe that [the co-defendant’s]

plea bargain was material to [the defendant’s} case because it would have shown that he had a

Motivation to testify against [the defendant] and that he was not merely testifying so that the truth

would be told.”).

Defendant cites to Bisaccia v. Attorney Gen. of State of N. J., 623 F.2d 307, 312 (3d Cir.

1980). The case is inapposite, however, and Bisaccia, decided by a federal intermediate appellate

court, is not binding on this Court. In Bisaccia, the Court of Appeals for the Third Circuit held

“that use of a co-conspirator’s guilty plea as substantive proof of a defendant's complicity in a

conspiracy without cautionary instruction is not admissible as evidence,” and warranted federal

piracy ry

habeas corpus relief. Id. In this case, however, the co-defendant’s plea was to murder, not

Fmd

conspiracy, and Defendant’s counsel argued precisely that point to the jury. N.T., Trial, Vol. XIV,

3/2/17, at 69 (“[H]e didn't plead guilty to that. He pled guilty to third degree murder, killing with

guilty to. He did not piead guilty to robbery or conspiracy to commit

1 Thats whest he o1odA

malice. That's what he pled gui

robbery. Think about that, because that's not what was happening.”).

Additionally, Fuller’s guilty plea was not admitted as substantive evidence of the

conspiracy, nor as substantive proof of Defendant’s guilt. Rather, it was used as impeachment

evidence against Fuller based open his potential bias and hope or expectation of leniency,

particularly because Fuller had not yet been sentenced at the time he originally testified. As

23

explained previously, the Court gave an accomplice liability instruction which specifically told the

Jury that, in view of Fuller’s involvement and status in this case, it must view his testimony with

disfavor in that it comes from a corrupt and polluted source. Id, at 155. The Court further instructed

‘—

the jury to consider the bias, prejudice, or motive to lie that a witness may have, Id. at 147,

Because the evidence of Tyrone Fuller’s plea was relevant for impeachment purposes, the

very thing it was used for, Defendant fails to state a claim of arguable merit. Defendant’s counsel

also plainly used the evidence to impeach Tyrone Fuller. Defendant therefore also fails to establish

that his counsel had no reasonable strategy for not objecting. Additionally, the Court did instruct

the jury concerning the testimony of an accomplice, as well as a witness’ bias, prejudice, or motive

endant fails to establish in what way he was prejudiced. Defendant has

therefore failed to prove that his counsel was ineffective. Because his counsel was not ineffective,

Defendant’s claim has no merit and is denied.

K. Defendant’s counsel was not ineffective for not requesting a

mistrial.

Tenth, Defendant claims that his counsel was ineffective for failing to request a mistrial.

Defendant claims that the jurors were hopelessly deadlocked for three days. After deltberating for

a period of time, the jurors submitted a question, Stating, “The jury cannot come to [Jan agreement.

What would be our next instruction?” N.T., Trial, Vol. XV, 3/2/17, at 38. The Court then held a

sidebar. Id. at 39. The Court inquired whether the parties wished the Court to ask if further

deliberations would result in a verdict. id. The Commonwealth expressly deferred to Defendant's

counsel, who indicated that he would prefer to release them for the evening and bring them back

THE COURT: You've had the opportunity to observe the jurors’ demeanor

coming in, Does the Commonwealth and the defense want to ask any further

24

question of whether or not do the jurors believe that further deliberations would

result in the @ verdict? oo

MISS SMITH: Ask the defense first. I guess it's their --

THE COURT: Do you want me to release them for the evening?

[MR, COLAFELLA:] You know what I think.

THE COURT: I don't know unless you tell me.

[MR. COLAFELLA:] | think they're just burned out, 1 know if you ask

them, I know what their answer is going to be. I think we just inform them we know

its jsic] been a iong day, a iong process, and they need to come back Monday to

deliberate and see if it goes anywhere. It has been probably nine hours all together,

not terribly iong.

THE COURT: Okay.

“When an event prejudicial to the defendant occurs during trial only the defendant may

move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial

judge may declare a mistrial only for reasons of manifest necessity.” Pa.R.Crim.P. 605(B).

Whether to declare a mistrial is discretionary with the trial court. Commonweaith v. Tejeda, 834

A.2d 619, 623-624 (Pa.Super. 2003). “The determination by a trial court to declare a mistrial after

+

jeopardy has attached is not one to be lightly undertaken, since the defendant has a substantial

interest in having his fate determined by the jury first impaneled.” Commonwealth v. Walker, 954

A.2d 1249, 1254 (Pa.Super.2008). “A failure of the lower court to consider tess drastic alternatives

before declaring a mistrial creates doubt about the exercise of the court's discretion and may bar

Te-prosecution because of double jeopardy.” Commonwealth v. McCord, 700 A.2d 938, 943

(Pa.Super. 1997),

* The Transcript as typed does not expressly indicate that it was Defendant’s trial counsel who was speaking, but the

ha trisl

context of the transcript makes that clear, and is confirmed by the Conrt’s awn independent recollection of the trial.

The Court has added brackets indicating as such for clarity of reading.

25

There is no established test for determining the existence of a manifest

necessity. McCord, supra at 942. “It is, however, recognized that a genuine inability

of a jury to agree constitutes a ‘manifest necessity’ to declare a mistrial over a

defendant's objection without offending the defendant's Fifth Amendment rights.”

Commonwealth y. Monte, 459 Pa. 495, 329 A.2d 836, 840 (1974), A genuine

inability of a jury to agree upon a verdict occurs if it appears to the trial court that

there is no reasonable probability of agreement. Jd.

Commonwealth v. Young, 35 A.3d 54, 59-60 {Pa.Super, 2011),

When deciding whether a mistrial should be granted based upon jury deadlock, “ ‘the

primary element in judging whether a jury is really deadlocked is the firmness of its

communication to the court that it is deadlocked and the judge's belief that such is the case.” *

Commonwealth v. Hoover, 314 Pa.Super. 158, 161 (1983) (quoting Commonwealth y. Howard

al, 233 Pa.Super. 496, 335 A.2d 489 (1975)). Additionally, Pennsylvania’s courts have approved

of instructions to the jury regarding its duty to deliberate where a potential impasse is reached.

E.g., Commonwealth v, Spencer, 216 Pa.Super. 169, 263, A.2d 923, 926

v. Greer, 597 Pa, 373, 398 (2008) (“Nothing in the law requires that deliberations be aborted

because jurors may feel uncomfortable in being directed to listen to each other and to attempt to

hammer out their differences.”).

in this case, Defendant did not request a mistrial. Rather, Defendant's counsel requested

that the jury be sent home and allowed to resume deliberations after the weekend. The Jury had

deliberated, by counsel’s own count, for only nine hours. Cieariy, the eventual result of the juror’s

deiiberations, ie, Defendant's conviction, was unknown when Defendant’s counsel made the

decision. The jurors indicated only that they could not come to an agreement, and did not say they

adlocked. Id. at 38. On this record, it is plain that a manifest necessity did not

eaoly An

were hopelessly de

exist at that time.

It was demonstrated at the PCRA hearing that, further during the trial, Defendant and his

trial counsel consulted regarding the issue of the time it was taking the jury to deliberate.

26

Defendant was given a colloquy, consulted with counsel, and a strategic decision was made by the

defense to continue to allow the jury to deliberate. N.T., PCRA Hearing, 9/27/21, at 29-34 (citing

Volume XVI of the trial transcripts). On direct examination by PCRA counsel, Defendant's triai

counsel testified as follows:

Q. And so you two, you and Mr. Kelly discussed that this was a critical and crucial

part of the case, and therefore you wanted his input; correct?

A. Correct.

Q. And the reason why this was such an important and critical part of the, critical

part of the case is why in your estimation?

A. Well, you know, naturally, the jury has the case at that point. Either the timing

of deliberations is always tricky. Because when they’ve had the case, whether it’s

the end of the week, the beginning of the week, how long they've been out, your

sense of kind of where they are, if you can tell whether there’s, and can’t always

tell, but you can kind of tell from head nods and expressions sometimes if, if it’s

more than one holdout, but obviously, it’s a big decision. Because if you get to that

point, you know, where, where especially in a retrial, this is the second time we did

the case beginning to end, you know, do we ask for a mistrial and ask that we

require the Commonwealth to try it a third time if it’s granied, or do we keep

pressing to see if we can get an acquittal here, and obviously, that’s a big decision.

Because if you elect to let them keep going and it doesn’t go your way, you know,

there’s always an element of regret, so it is, it’s a very big decision.

y: £ Ty brg

Q. Anin fairness to you, what you’ve just described is, you know, in a trial there’s

other outside factors that people don'i see, what you said, the expressions of the

OMe? Outsiae Tacior

jury, correct?

A, Correct,

Q. The timing in which they’ve been set in those 12 chairs for, to listening to his

idence: caract?

evidence; comrect:

Q. Even the day of the week has an implication on decision; correct?

A. It absolutely does.

Q. And so you've taken all those factors in considerations as a criminal defense

attorney and conferred with Mr. Kelly; correct?

A. Pim sure I would've.

27

Q. And then the Court conducts 4 colloquy on the record making sure that he's

weil informed of his decision to have the Jury keep the case, right?

A. Yes.

Id. at 32-34. Thus, counsel explained that he considered details afl the way down to the day of the

week it was in his strategic decision making, Defendant was given a colloquy by the Court as well

and indicated that he wanted to allow the jury to continue to deliberate, Defendant’s trial counsel

Defendant also appears to claim his counsel should have requested a mistrial based upon

the Commonwealth not meeting its burden of proof. Defendant’s counsel did challenge the weight

and sufficiency of the evidence, however, and the Superior Court found on direct appeal that those

challenges did not have merit. This claim is therefore also without arguable merit.

Again, Defendant has failed to prove that his claim has any arguable merit, that his counsel

did not have a reasonable strategic basis, or that he was prejudiced by counsel's actions. His

counsel was therefore not ineffective. Because his counsel was not ineffective, Defendant's claim

has no merit and is denied.

L. Defendant’s counsel was not ineffective for not objecting to the

Court’s jury instructions.

Eleventh, Defendant claims that his counsel was ineffective for failing to object to the

Court’s instructions to the jury, ciaiming that the Court’s “charge to the jury was rife with

prejudicial expressions of guilt, in an attempt to invade the province of the jury.”

The Pennsylvania Supreme Court has often reaffirmed the principle that a trial court has

considerabie discretion in the area of jury instructions. E.g., Commonwealth v. Sandusky, 77 A.3d

663, 667 (Pa.Super. 2013).

A jury charge will be deemed erroneous only if the charge as a whole is inadequate,

not clear or has a tendency to mislead or confuse, rather than clarify, a material

issue. A charge is considered adequate unless the jury was palpably misled by what

28

the trial judge said or there is an omission which is tantamount to fundamental error.

Consequently, the tial court has wide discretion in fashioning jury instructions.

The trial court is not required to give every charge that is requested by the parties

and its refusal to give a requested charge does not require reversal unless the

Appellant was prejudiced by that refusal.

Id. (quoting Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super, 2006)).

Defendant complains that the Court referred to a portion of Tyrone Fuiler’s testimony

concerning statements made by Defendant. This is true. However, the statements were referred to

ion informing the jury about the findings it must make before

it could conclude that Defendant even made the statements. N.T., Trial Vol. XIV, 3/2/17, at 160-

61,

There was aiso a statement in the former testimony by Mr. Fuller that while

at the bar after the murder, after hearing Conekia Finney and her unborn child died,

there was allegedly a statement that Marlin Kelly stated, "Man, woman, child,

anyone could be smoked."

There was also statements allegedly made during Tammy Barker's

testimony.

Before you consider the statements as evidence against the Defendant,

you must find that, first, a crime, in fact, was committed. T. wo, that the Defendant,

in fact, made these statements, and that the statements were velun tary. Otherwise,

you must disregard the statements.

Each juror should ultimately decide these questions for himself or herself

and thereby individually accept or reject the statements as evidence.

Id. (emphasis added). This instruction was standard instruction 3.01 concerning a defendan

confession or admission. Rather than prejudicing Defendant, it admonished the jury that it could

not even accept such statements as being made by Defendant until it first made the required factual

ing prejudicial, was protective of

Defendant’s rights.

Simply stated, the Court acted impartially when it delivered its final charge to the jury.

ord supports Defendant's assertions. No objection was raised at any time. No

29

uit acted

statement or comment has been made at any previous time indicating that the Co

improperly in any form when it provided the Jury its final jury instructions. Defendant fails to show

in what way he was prejudiced. As with his ten other claims, Defendant’s eleventh claim is

unsupported by the record. He fails to prove that his claim has arguable merit, and there is no

evidence of prejudice. Defendant’s counsel was therefore not ineffective. Because his counsel was

nat ineffective, Defendant’s claim has no merit and is denied.

M. De ounsel was not ineffective concerning

instructions regarding conspiracy and second degree murder,

5 7 =

M. Defendant's ¢

s

In addition to preserving the cleven issues asserted by Defendant in his pro se PCRA

Petition, Defendant’s first PCRA counsel raised, and current PCRA counsel has preserved, three

additional issues in the First Amended PCRA Petition. Defendant’s twelfth and thirteenth issues,

considered here together, claim:

Trial counsel was ineffective for failing to request instructions, failing to object to

this Court’s instructions, and/or in failing to request a cautionary instruction

regarding both counts of Second-Degree Murder. This Court’s instructions did not

specifically articulate that the slayer’s act which caused the death must have been

committed in furtherance of the design to commit the underlying felony. The errors

were not harmiess, and Defendant was prejudiced because the instructions

supported an erroneous basis to convict,

Amended PCRA, at 5.5

Second, Defendant’s counsel also claims:

Trial counsel was ineffective for failing to Tequest instructions, in failing to

object to this Court’s instructions, and/or in failing to request a cautionary

instruction regarding Conspiracy to Commit Robbery. This Court generally and

repeatedly referred to Defendant and Tyrone Fuller, a co-defendant and co-

operating witness, as “partners.” This Court’s instructions were not harmless and

prejudiced Defendant because they created an inference that their illicit drug

° The pages of Defendant's Amended PCRA are unnumbered. The Cour itations is inclusive of

the cover page.

30

dealing business relationship-a partnership-was sufficient to establish the

conspiracy to commit robbery.

Amended PCRA, at 6.

The Court will treat both claims together because both invoive the Court’s final

instructions. As with the claims raised by Defendant in his pro se PCRA Petition, PCRA counsel's

claims are also manifestly contradicted by the record, N.T., Trial, Vol. XIV, 3/2/17, at 152-54,

171-83.

The law requires that, in order to prove second degree murder, frequently referred to as

felony murder, the killing which is committed must be in furtherance of the underlying felony.

Regarding second degree murder and second degree murder of an unborn child, a defendant may

be liable as a principal or as an accomplice where he is engaged in the commission of an

enumerated felony and a person is killed in furtherance of the felony. Commonwealth y. Lambert,

795 A.2d 1010, 1022-23 (Pa.Super. 2002). In Lambert, the Superior Court explained in detail the

law and doctrine regarding second degree murder.

| 40 Murder of the second degree is a criminal homicide committed while

a defendant was engaged as a principal or an accomplice in the perpetration of a

felony. 18 Pa.C.S.A § 2502(d) defines perpetration of a felony as:

{t]he act of the defendant in engaging in or being an accomplice in

the commission of, or an attempt to commit, or flight after commit-

ting, or attempting to commit robbery, rape, or deviate sexual inter-

course by force or threat of force, arson, burglary or kidnapping.

18 Pa.C.S.A § 2502(d) (emphasis added). The malice or intent to commit the un-

derlying crime is imputed to the killing to make it second-degree murder, regardless

of whether the defendant actually intended to physically harm the victim.

141 The elements of accom

P ¥ 16

in Commonwealth v. Middleton, 320 Pa.Super. 533, 4

lice liability for felony murder were addressed

7 1

ny I

A.2d 841, 848 (1983):

In Commonwealth v. Waters, 491 Pa. 85, 95, 418 A.2d 312, 317

(1980), the court discussed the elements to be proved in order to

establish accomplice liability for felony murder, saying that:

31

.. [t]he responsibility of persons, other than the slayer, for a homi-

cide committed in the perpetration of a felony require[s] proof of a

conspiratorial design by the slayer and the others to commit the un-

derlying felony and of an act by the slayer causing death which was

in furtherance of the felony.

Moreover, it was stated by the court in Commonwealth v; Legg, 491 Pa. at 82, 417

A.2d at 1154:

When an actor engages in one of the statutorily enumerated felonies and a

killing occurs, the law, via the felony-murder mule, allows the finder of fact

to infer the killing was malicious from the fact the actor was engaged ina

felony of such a dangerous nature to human life because the actor, as held

to the standard of a reasonable man, knew or should have known that death

might result from the felony. (footnote omitted)

Middleton, 467 A.2d at 848. In Commonweaith v. Melton, 406 Pa. 343, 178 A.2d

728, 731 (1962), cert. denied, 371 U.S. 851, 83 S.Ct. 93, 9 L.Ed.2d 87 (1962), our

Supreme Court explained that not only the killer, but all participants in a felony,

including the getaway driver, are equally guilty of felony murder when a killing by

a felon occurs.

§ 42 The statute defining second degree murder does not require that a hom-

icide be foreseeable; rather, it is only necessary that the accused en gaged in conduct

as a principal or an accomplice in the perpetration of a felony. Whether evidence

sufficiently indicates that a killing was in furtherance of a predicate felony can be

a difficult question. The question of whether the killing was in furtherance of the

conspiracy is a question of proof for the jury to resolve. It does not matter whether

the appeliant anticipated that the victim would be killed in furtherance of the con-

spiracy. Rather, the fact finder determines whether the appellant knew or should

have known that the possibility of death accompanied a dangerous undertaking.

Id. at 1022-23 (some citations omitted).

In Commonwealth v. Chambers, 188 A.3d 400, 410 (Pa. 201 8), the Supreme Court

conspiracy.

At "the heart of every conspiracy” lies the "common understanding or

agreement” between the actors. Commonweaith v. Kennedy, 499 Pa. 389, 453 A.2d

927, 929 (1982) (citations omitted). "Implicit in any conspiracy is proof... that an

accused agrees to participate in the alleged criminal activity." Commonwealth v.

Derr, 501 Pa, 446, 462 A.2d 208, 210 (1983). The criminal union being prosecuted

cannot be based upon an agreement to complete a broad, undefined objective at

some unknown point. Rather, the agreement must rest upon the mutual specific

intent to carry out a particular criminal objective. "The site qua non of a conspiracy

is the shared criminal intent." Weston, 749 A.2d at 463 (citing Commonwealth v,

fo TED Slee) SIA ene.

32

Wayne, 553 Pa, 614, 720 A.2d 456, 464 (1998), quoting Commonwealth v.

Schomaker, 501 Pa. 404, 461 A.2d 1220 (1983)}. "Without thts common purpose,

a conspiracy cannot be maintained." Derr, 462 A.2d at 209.

Proving the existence of such an agreement is not always easy, and is rarely

proven with direct evidence. Commonwealth y. Spot, 552 Pa. 499, F16 Ad 580,

592 (1998). "An explicit or formal agreement to commit crimes can seldom, if ever,

be proved and it need not be, for proof of a criminal partnership is almost invariably

extracted from the circumstances that attend its activities." Commonwealth v.

Strantz, 328 Pa, 33, 195 A. 75, 80 (1937). Indeed, "[a} conspiracy may be proven

inferentially by showing the relation, conduct, or circumstances of the parties, and

the overt acts of alleged co-conspirators are competent as proof that a criminai

confederation has in fact been formed.” Kennedy, 453 A.2d at 930.

In this case, the Court first instructed the jury on the difference between liability as an

The next area of jaw that I'll tum to defines the concept of an accomplice

and conspiracy and it compares those two.

There are two basic ways that one Defendant may be criminally responsible

fae the aan dint nammitied hy anntharnarcen or nercona These hun wave may annly

2UPE CLAM WRAL LER WATE ERA uy CULL pelo wa PYL OWI, Lime ery ve aye Ly Apri y

even if the Defendant in question was not present at the time and place when the

act occurred.

The first way is for the Defendant to be a member of a conspiracy. In a few

moments I will define for you what a conspiracy is and how it's proven. For our

Be eee Det eed tLe ae eet ee mete parks mee ty ote ene eae,

purposes now it is enough io understand that a CONSpiITacy CAISiS Woon TWO OF more

people agree to commit a crime or a Series of crimes and one commits an act te

further the goal of that agreement.

As applied in this case if it is proven beyond a reasonable doubt that the

Defendant was indeed a member of a conspiracy he may be held responsible for the

act or acts of another person or person if each of the following elements is proven

beyond a reasonable doubt:

That the other person who committed a specific act was also a member of

the same conspiracy.

TW as at _ rim: a i

ifldt The Criiy lt iu

existence.

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And that the crime in question was committed to further the goals of the

conspiracy.

33

There is a second and separate way that one Defendant can be proven liable

for the conduct of another person or persons. That is, when the Defendant is an

accomplice of the person who actually commits the crime at issue.

There is a basic difference between being an accomplice and being a co-

conspirator, excuse me, conspirator.

In a conspiracy people agree to act jointly.

To be an accomplice a person does not have to agree to help someone else.

The person is an accomplice if he, on his own, acts to help the other person commit

a crime.

More specifically, a Defendant is an accomplice of another for a particuiar

crime if the following two elements are proven beyond a reasonable doubt:

That the Defendant had an intent of promoting or facilitating the

commission of the crime.

That the Defendant solicits, commands, encourages, requesis ihe ciher

person to commit it or aides, agrees to aid, or attempts to aid the other in the

planning or committing it.

It is important to understand that a person is not an accomplice merely

OE

because he is present when the crime is committed or knows that the crime is being

committed.

A person is an accomplice, a person who is an accomplice will not be

responsible for the crime if, and only if, the person before the other person commits

the crime either stops his own efforts to promote or facilitate the commission of the

crime and either wholly deprives his previous efforts of effectiveness in the

commission of the crime or gives timely warming to the law enforcement authorities

or otherwise makes a proper effort to prevent commission of the crime.

Id. (emphasis added).

The Court later turned to the specific elements of conspiracy, second degree murder, and

second degree murder of an unborn child. Id. at 174-83.

The law of felony murder does not require that a homicide be foreseeable

eonged i rin cinal

1

rather it is only necessary that the Defendant engaged in conduct

an accomplice in the perpetration of a felony.

Finally, where there is an existence of a conspiracy is proven a Defendant

who conspires is fully responsible for the natural and probable consequence of any

acts committed by a co-conspirator which are done in furtherance of the

conspiracy.

34

The Defendant is responsible even though he was not physically present

when the acts were committed by the co-conspirator and extends even to a

homicide, which is the natural and probable consequence of execution of the

conspiracy even if the homicide was not specifically contemplated by the

Defendant or his co-conspirators.

Id. at 171-72 (emphasis added).

Although the agreement itself is the essence of the conspiracy, a Defendant

cannot be convicted of conspiracy unless he or a fellow co-conspirator does

something more, and that's what we call an overt act, in furtherance of the

conspiracy.

The overt act is an act by any member of the conspiracy that would serve

to further the goals of the conspiracy. The overt act can be criminal or non-

criminal in itself as long as it's designed to put the conspirator agreement into effect.

I apologize.

This is to show that the parties have a firm agreement and are not just

thinking or talking about committing a crime. The overt act shows that the

conspiracy has reached the action stage. —

:

if a co-conspirator actually commits or attempts to commit the agreed

crime, that obviously would be an overt act in furtherance of the conspiracy.

But a small step or a step that is much more preliminary and a lot less

significant can satisfy the overt act requirement.

he

A oat W9ALFS form

1G, at 174-73

In order to find the Defendant guilty of conspiracy to commit robbery, you

must be satisfied that the following three elements have been proven beyond a

reasonable doubt:

th the otha

th the other person that one

Al WI

the planning or commission of th

sreed wr

that tha a eres

First, tat Hie Defendant

them would engage in conduct for

robbery.

Second, that the Defendant and other persons intended to promote or

facilitate committing the robbery. In other words, they shared the intention to bring

1 aah: Se ee ee ee ft eee te eset teat ase

ADOUL Thal CONG OF Make II Caster WO COMME Wat erie,

And third, that the Defendant or other persons did the act they're alleged

to have been overt acts and did them in furtherance of the conspiracy.

es any act io Carry a uf ar «. advance their

hho ee df

and apie? that one o, f the

ms

=

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agreement, then he has done an overt act in furtherance of their conspiracy. The

other conspirator does not have to participate in the act or even know about it. Ina

sense they are partners, and like partners they are responsible for each other["]s

actions.

—

ato oas 1 FTL?

Al. ater ine

on

Now, the Defendant has been charged with second degree murder and that

is in regards to Conekia Finney. To find the Defendant guilty of this offense you

must find the following four elements have been proven beyond a reasonable doubt:

Second, that the Defendant or Tyrone Fuller did so while they were partners

in committing a certain robbery.

Third, that Defendant or Tyrone Fuller did the act that caused the death

eee oo aE

wv Ee PNT 8. Fo. a. = = gph Boies

LUACALG PERE) Hb JUPUICTRACE UF LIC PUULET Ye

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And, fourth, that the Defendant was acting with malice, You may find that

the Defendant was acting with malice if you are satisfied beyond a reasonable doubt

that he and Tyrone Fuller were partners in committing the robbery. Because robbery

is a crime inherently dangerous to human life, there does not have to be any other

proof of malice.

Id. at 179-80 (emphasis added).

Finally, the Court tumed to explain what the legal requirements were for Defendant and

Tyrone Fuller to be considered partners with regard to the conspired robbery, and what the legal

requirements were with regard to the “in furtherance” element.

Going back to the requirement that Defendant and Tyrone were partners

in committing the robbery, [ instruct you that they were partners if they were both

principals er one of them was a principal and the other was an accomplice.

A person is a principal if he actually commits the crime or makes an attempt

himself. A persen is an accomplice if with an intent of encouraging or helping

the commission of the crime he asks the principal to commit it or helps ar agrees

or attempts to help the principal in committing it.

tuotovou that they were narimers if they consnivred tn commit

ot (al Iney Were PaMmnhers ii iney conspired tO commit

T alen in

aiSo fF you

robbery. Two persons conspire to commit a crime if they intend to, if with intent of

encouraging or helping the commission of the crime they agree that one or both of

them will commit the crime or that one of them will help the other in planning or

committing it.

36

Their agreement may be expressed and verbal.

They may actually talk about it or their agreement may be unspoken

agreement that can be inferred from their words and conduct and surrounding

circumstances. Each knows what the other is thinking. They don't have to talk about

it.

And, finaily, to complete the conspiracy one of the co-conspir-, one of the

conspirators must commit what the law calls an overt act. 47 overt act is the act by

any member of the conspiracy that would serve to further the goal of the

conspiracy.

Here the Commonwealth contends that causing the death of Conekia Finney

while in the course of committing the theft from Steven Murray was such act.

I will now explain to you the meaning in furtherance element. A partner

acts that kills, a partner act that kills is not in furtherance of a felony if the

partner does the act for his awn personal reason that are independent of the

felony.

A partner's acts that kills is in furtherance of the felony if he dees the act

while fleeing from the scene and if there is no break in the chain of events

between the felony and the act.

However, even though the partner act that kills may seem to meet the

requirements, it is not in furtherance of the felony if the partner does the act for

his own personal reason that are independent of the felony and the effort to flee.

To summarize, in order to prove felony murder, the Commonwealth is not

rac th

tah

ob

rer wrove that the Defendant actually cammitted the robbery no

< HN actuary Committed tne roopery no

ived ta

LULL OL pivrw BELG ba he ee EN -

Commonwealth required to prove the completion of the robbery.

Rather, the Commonwealth must prove beyond a reasonable doubt that the

victim was killed while the Defendant was engaged as either a principal or

accomplice in the commission, attempt, or flight after committing or attempting to

the requirement ihai ihe killing be in furtherance o

® In her summation to the jury, the Assistant District Attorney also argued that the killing of Conekia Finney and her

unbera child were committed in furtherance of the conspiracy to commit robbery.

37

clear that the Court did not simply label Defendant as Fuller's partner. Rather, the Court explained

what facts must have been found by the jury with regard to Defendant’s alleged partnership with

Fuller in the conspiracy to commit robbery which ultimately resulted in the killing of Conekia

Finney and her unbom child. Further, Defendant’s counsel did object to the Court’s instructions.

N,T., PCRA Hearing, 09/27/2021, at 44-49. Defendant’s trial counsel cannot be ineffective for an

instruction given by the Court when counsel objected to the instruction being given.

relationship-a partnership-was sufficient to establish the conspiracy to commit robbery,” as

asserted in the First Amended PCRA Petition. Rather, the Court’s detailed instructions correctly

charged the jury on the facts it was legally required to find i

as a conspirator or accomplice. These claims lack any support from the record. Again, Defendant

has failed to prove that his claim has any arguable merit, His counsel was therefore not ineffective.

Because his counsel was not ineffective, Defendant’s claim has no merit and is denied.

N. Defendant’s counsel was not ineffective concerning

Defendant’s decision to proceed to trial.

The Court turns to next to the third claim from the First Amended PCRA Petition, the

fourteenth claim overall: that trial counsel was ineffective for advising Defendant to proceed to

trial. Defendant claims he was offered a plea for 20 to 40 years, presumably to third degree murder.

to the second trial.

And guess what, ladies and gentlemen, the defense already alluded to this. We don't have to show

you that he was the shooter. That was a bonus for you. We don't have to show that. All we have to

show is there was a plan to rob him, and [ told you why there was, and these people were involved.

There was an overt act taken in furtherance of that plan, and somebody died.

N.T., Trial, Vol. XIV, 3/2/17, at 131.

38

Unlike many other cases where a criminal defendant claims ineffective assistance of

counsel after accepting a guilty plea, here Defendant claims ineffective assistance in rejecting a

guilty plea offer. The United States Supreme Court has provided guidance on just such a claim.

Lafler v. Cooper, 566 U.S. 156, 132 8. Ct. 1376, 182 L. Ed. 2d 398 (2012).

To establish Strickland prejudice a defendant must “show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.” /d., at 694, 104 §.Ct. 2052. In the context

of pieas a defendant must show the outcome of the pica process would have been

different with competent advice. See Frye, ante, at 1388 — 1389, 132 S.Ct. 1399

(noting that Strickland 's inquiry, as applied to advice with respect to plea bargains,

turns on “whether ‘the result of the proceeding would have been different’ ”

(quoting Strickland, supra, at 694, 104 §.Ct. 2052)); see also Hill, 474 U.S., at 59,

106 S.Ct. 366 (“The ... ‘prejudice,’ requirement ... focuses on whether counsel's

constitutionally ineffective performance affected the outcome of the plea process”).

TH} whan evaluating the netitioners claim that ineffective assistance led to the

In fii, when evauating the petitioner’ 3 claim that ineffective assistance led to the

improvident acceptance of a guilty plea, the Court required the petitioner to show

“that there is a reasonable probability that, but for counsel's errors, [the defendant]

would not have pleaded guilty and would have insisted on going to trial.” Zbid.

In contrast to /7i7?, here the ineffective advice led not to an offer's acceptance

stand oe eee

but io its rejection. Having to SRI irial, not choosing io waive it, is the PE ej dice

alleged. In these circumstances a defendant must show that but for the ineffective

advice of counsel there is a reasonable probability that the plea offer would have

been presented to the court (i.e. that the defendant would have accepted the plea

and the prosecution would not have withdrawn it in light of intervening

circumstances), that the court would have accepted its terms, and that the conviction

or sentence, or both, under the offer's terms would have been less severe than under

the judgment and sentence that in fact were imposed. Here, the Court of Appeals

for the Sixth Circuit agreed with that test for Strickland prejudice in the context of

a rejected plea bargain. This is consistent with the test adopted and applied by other

demonstrated difficulties or systemic disruptions

ated SI 1ons.

annellate courts without

GUTICUI systemic cisrupt

@PPeudaie VGuito Wii Grou

ld. at 1384-85.

In some situations it may be that resentencing alone will not be full redress

for the constitutional injury. If, for example, an offer was for a guilty plea to a count

or counts less scrious than the ones for which a defendant was convicted after trial,

or if a mandatory sentence confines a judge’s sentencing discretion after trial, a

resentencing based on the conviction at trial may not suffice. See, e.g., Williams,

571 F.3d, at 1088; Riggs v. Fairman, 399 F.3d 1179, 1181 (C.A.9 2005). In these

circumstances, the proper exercise of discretion te remedy the constitutional injury

may be to require the prosecution to reoffer the plea proposal. Once this has

39

occurred, the judge can then exercise discretion in deciding whether to vacate the

conviction from triai and accepi the plea or leave the conviction undisturbed.

In implementing a remedy in both of these situations, the tnal court must

weigh various factors; and the boundaries of proper discretion need not be defined

here. Principles elaborated over time in decisions of state and federal courts, and in

statutes and rules, will serve to give more complete guidance as to the factors that

should bear upon the exercise of the judge's discretion. At this point, however, it

suffices to note two considerations that are of relevance.

First, a court may take account of a defendant's earlier expressed

willingness, or unwillingness, to accept responsibility for his or her actions.

Second, it is not necessary here to decide as a constitutional rule that a judge is

required to prescind (that is to say disregard) any information concerning the crime

that was discovered after the plea offer was made. The time continuum makes it

difficult to restore the defendant and the prosecution to the precise positions they

occupied prior to the rejection of the plea offer, but that baseline can be consulted

wh cay ees ery

se ne ee abe Jone . Lee emer ee eee be cen ees @ eyrmence -

in finding a remedy that does not require the prosecution to incur the expense of

conducting a new trial.

Id. at 1389.

At the PCRA Hearing, Defendant’s counsel could not recall whether any plea offer had

actually been made. N.F., PCRA Hearing, 09/27/2021, at 52-53, 78. Defendant himself testified

that his counsel had informed him that the Commonwealth had offered a plea for an agreed

sentence of twenty to forty years, but that he rejected it on the advice of counsel, Id. at 103-05.

The

The Court notes that at n

No written memorandum or other documentary evidence of a plea offer was presented during the

PCRA hearing. Normally, such an offer, particularly in a case of this magnitude, would be reduced

to writing and the existence of such an offer would be communicated to the Court, which wouid

then proceed to colloquy the defendant regarding the offer. Because no such offer was ever reduced

or communicated to the Court during either the first or second trial, and hecause

to writing ‘

writing mimunicate

Defendant’s counsel had no recollection that any such offer had ever been made, the Court finds

that, in fact, no such offer was ever made. The Court finds Defendant’s testimony that the

Even if the Court did believe Defendant, he testified that he followed his counsel’s advice

in rejecting the offer, and indicated his counsel’s strategic basis for recommending that he proceed

to trial. Accordingly, Defendant never testified that he would have actually accepted the offer,

even if it had been made, and a strategic basis existed for the rejection of the alleged offer.

Defendant has failed to prove that his counsel was ineffective regarding the decision to

proceed to trial. Defendant could have been acquitted by the second jury of the charges of felony

murder just as the first jury had acquitted him of the charge of robbery. It appears to the Court that

Defendant entertained a hope that he would be acquitted, based upon his proceeding to trial and

testifying on his own behalf twice, both times stating under oath that he was innocent of the

the imposition of the mandatory sentences of life imprisonment; he had already been convicted

and received the mandatory sentences once before, after his first trial. Compare, e.g.,

finding that counsel was ineffective concerning rejection of guilty plea where counsel failed to

advise the defendant concerning an applicable mandatory sentence if convicted at trial).

Additionally, a plea offer by the Commonwealth is not binding unless and until the trial

court accepts the plea. Commonwealth v. Chazin, 873 A.2d 732, 737 (Pa.Super. 2005).

1 Procedure orant the trial court broad

Vania KU a2 Procedure prant tne fYial court Sroad

a 5

discretion in the acceptance and rejection of plea agreements. There is no absolute

right to have a guilty plea accepted.” Commonwealth v. Hudson,820 A,2d 720, 727-

28 (Pa.Super. 2003}. Accordingly, our Courts have reaffirmed that “[w]hile the

Commonwealth and a criminal defendant are free to enter into an arrangement that

the parties deem fitting, the terms of a plea agreement are not binding upon the

court. Rather the court may reject those terms if the court believes the terms do noi

serve justice." Commonwealth v. White, 787 A.2d 1088, 1091 (Pa.Super. 2001). As

these holdings make apparent, the Commonwealth's offer of plea, even if accepted

by the defendant unequivocally, does not dispose of a criminal prosecution; indeed,

the plea bargain is of no moment until accepted by the trial court.

"The Pennsylvania Rules of Crimin

aneé rennsy: 228 OF LYE

id, (quotation marks and citations omitied}

Al

This Court can state without any hesitation whatsoever that it would not have accepted a

plea to third degree murder or another lesser charge after Defendant's first trial, nor would it accept

such a plea at this current time. Defendant testified under oath at his first trial that there was no

conspiracy and that he did not shoot Conekia Finney. The Court would not have accepted a

subsequent plea by Defendant after his former testimony under oath that he was innocent of the

crimes charged and that he did not conspire with Fuiler. His swom testimony would have utterly

contradicted the factual basis for such a plea, and would have placed the Court in the position of

having to determine whether Defendant had perjured himself at his first trial, or was perjuring

himself presently while pleading guiity. See, e.2., Commonwealth v. F luharty, 429 Pa.Super. 213,

219 (1993) (quoting Commonwealth y, Maddox, 450 Pa, 406, 409-410, 300 A.2d 503,

(“ ‘It is clear that before accepting a plea of guilty, the trial court must satisfy itself that there is a

factual basis for the plea,’ ”); Commonwealth v. Roundtree, 440 Pa. 199, 202, 269 A.2d 709, 711

(1970) (“{I]f'a defendant pleads guilty to a criminal charge, and in the next breath contravenes the

plea by asserting facts which, if true, would establish that he is not guilty, then his guilty plea is of

no effect and should be rejected.”)}; Commonwealth v. Coleman, 438 Pa. 373, 377, 264 A.2d 649,

651 (1970) (external citations omitted) (“Recanting testimony is exceedingly unreliable, and it is

the duty of the court to deny a new trial where it is not satisfied that such testimony is true, There

is no less reliable form of proof, especially when it involves an admission o

Nor would this Court have accepted the plea after Defendant had already been convicted

of the murders by a unanimous jury after his first trial.’ This Court has the utmost respect for a

? While Defendant’s first conviction was reversed by the Superior Court, that reversal was not due to insufficient

evidence. Nor was it due to any defect in the trial itself. Ner was it due to any issue with any juror who actually served

at the first trial. Rather, Defendant’s conviction after the first trial was reversed because a prospective juror, who

uitimately never served on the jury, was aiso a police officer, and because Defendant was required to use a peremptory

challenge to remove him instead of a challenge for cause based upon the Court’s understanding of the law as it existed

at that ime. See Commonwealth v, Kelly, 134 A.3d 59 (Pa Super. 2016).

42

jury’s service and its ultimate verdict. Furthermore, under Article 1, Section 6 of the Pennsylvania

Constitution, both the Defendant and the Commonwealth have a right to a trial by jury. Thus, a

jury’s verdict has special constitutional import not only with regard to a Defendant’s expectations,

but also the Commonwealth’s. For this reason also, the Court would not have accepted a plea

following Defendant’s first trial. See Chazin, 873 A.2d at 737-38 (“The court would have rejected

the resulting bargain. . . Without evidence that the result of the plea bargain process would have

been different had he been able to accept the Commonwealth's original offer,

necessarily fails to satisfy the prejudice prong requisite to a finding of IAC.”).

This claim, as with each and every one of Defendant’s other claims, lacks any support from

hat his claim has any arguable merit or that bis

counsel did not have a reasonable strategic basis. Defendant’s counsel was therefore not

ineffective. Because his counsel was not ineffective, Defendant’s claim has no merit and is denied.

G. Defendant’s counsel was not ineffective for questioning

Defendant on direct examination regarding his decision not to

cooperate with the Commonwealth.

Defendant’s fifteenth issue, and the first new issue raised in his Second Amended PCRA

Petition, is a claim that counsel was ineffective for asking Defendant on direct examination: “Did

you go running to the DA’s Office to cooperate?” Second Amended PCRA Petition, 9/15/2021,

at 5-6; N.T. Trial, Vol. XIII, 3/1/2017, at 81; N.T. PCRA Hearing, 9/27/2021, at 17; Brief,

11/29/2021, at 6-10. Defendant argues that this violated his Pennsyivania and federal

constitutional rights against self-incrimination because it elicited Defendant's pre-airest or post-

arrest silence. Brief, 11/29/2021, at 4. He further argues that this opened the door to the

prosecution’s infringing on that right, Id. at 11. He concludes that this error was not harmless.

Id. at 12-14. The Court finds that the claim lacks merit, that the question asked by Defendant’s

43

counsel was part of his reasonabie trial strategy, and that Defendant suffered no prejudice as a

result.

Generally, claims that a defendant’s right against self-incrimination was violated arise

when the prosecution references and exploit a defendant’s post-arrest silence for the purpose of

showing guilt. E.g., Commonwealth v. Adams, 628 Pa. 600, 104 A.3d 511 (2014) (plurality).

Here, however, Defendant’s challenge stems ftom a question asked by his own attorney.

Subsequent to this question on direct examination, the Court had a discussion with counsel at

sidebar and in chambers, where the Assistant District Attorney advised that she wanted to ask a

question based on the direct examination. N.T. Trial, Vol. XIU, at 89-90. Defense counsel stated

Defendant’s rights. Id. at 89. The Court wamed the

Sanh PPUSLOULOE

that the prosecutor’s question cou

Assistant District Attorney that her question could not comment on or implicate Defendant’s right

to remain silent. Id. at 90,

The Court firsi determines that Defendant’s claim does not have merit. “Even an explicit

reference to silence is not reversible error where it occurs in a context not likely to suggest to the

jury that silence is the equivalent of a tacit admission of guilt.” Commonwealth vy. Whitney,

Pa. 618, 633, 708 A.2d 471, 478 (1998) (citing Commonwealth v. Crews, 536 Pa. 508, 526-30,

640 A.2d 395, 404-06 (1994)). Moreover, “when a criminal defendant waives his right to remain

neither the United Siates nor the Pennsylvania Constitution

prohibit a prosecutor from impeaching a defendant's credibility by referring io his pre-arrest

silence.” Commonwealth v. Bolus, 545 Pa. 103, 113, 680 A.2d 839, 844 (1996); accord

A.3d 1038 (Pa. Super. 2013}. While Bolus permits a prosecutor to

Commonweaith v. Kuder,

use a testifying defendant’s pre-arrest silence for impeachment purposes, it does not preclude

references to silence in other relevant circumstances, such as in giving a fair response to defense

44

arguments at trial. Commonwealth v. DiNicola, 581 Pa, 550, 561 n.6, 866 A.2d 329, 336 n.6

(2005); Commonwealth v. Molina, 628 Pa. 465, 494, 104 A.3d 430, 447 (2014) (plurality). Here,

Defendant’s noncooperation with police was not made in a context likely to suggest that it was a

distinguishing Defendant from Tyrone Fuller. Defendant's position was that unlike Fuller,

Defendant did not cooperate with the Commonwealth because he was not involved and had

nothing to contribute. N.T, PCRA Hearing, 9/27/2021 ,at 14-15,

Nor is there arguable merit based on the questions asked by the Commonweaith. The

prosecutor confirmed with Defendant that “you’re street smart, and you're not supposed to be a

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snitch,” and that “fi

at 126. She continued in her cross-examination of Defendant:

Q. ... So then at some point in time, by the way, you know that Tyrone Fuller comes

to the DA’s Office; right?

A. Yes.

Q. To snitch on you?

A. Yes, he comes to testify.

Q. Okay. You never came te the DA’s office to snitch on him, though; right?

Yes or no?

A, No.

N.T. Trial, Vol. XII, 3/1/2017, at 184 (emphasis added). This was mentioned in the

Commonwealth’s closing argument:

Look at how mad [Defendant] got when he was talking about Tyrone Fuller

snitching. Look at how mad he got, Tyrone Fuller went running to the district

attomey’s office. Tyrone Fuller's a psychopath.

Then J asked him who didn’t, who didn't go running to the district attorney’s

office, you. He doesn’t like snitches. Tyrone Fuller is only going to do 13 years.

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He got 13 to 30, to 30 years, not with 26 years and special probation. That was a

falsehood. 30 years.

And what he’s banking on, ladies and gentlemen, is the fact that you have such

disgust and distaste for what Tyrone Fuller got and all of these other people that

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you won't look too hard at him, because all these other people are dirt bags.

*s office io snitch on Fuller,

This does not amount to implying that he did not do so as a tacit admission of guilt. Nor was it

necessary for Defendant to “open the door” for the Commonwealth to ask this question, as

ant allowed the Commonwealth to attempt to impeach him based on his pre-arrest silence

by choosing to testify. Bolus, 545 Pa. at 113, 680 A.2d at 844. Regarding the Commonwealth’s

closing argument, the Court finds that the reference to Defendant’s not running to the District

Attomey’s Office is a fair response that accurately characterizes Defendant’s trial Strategy.

Because the Commonwealth’s question and argument did not imply a tacit admission of guilt and

were not objectionable based on Defendant’s choice to testify, this claim does not have arguable

merit.

Even if the claim had arguable merit, the Court first finds that counsel’s question was part

of a reasonable trial strategy: to discredit the testimony of Tyrone Fuller and to contrast Fuller’s

behavior with Defendant's. Counsel explained:

You know, naturally, we're trying to drive the point home. We were, it was difficult

because Fuller didn’t testify, so, and Leo didn’t testify, so we didn’t have

confederate testimony co-confederate testimony in the second trial. So in an effort

to really try to amplify that fact that all of these cooperatives were proactively

seeking consideration and, you know, special consideration for their testimony and

cooperation, I realiy wanted to drive that point home, but we weren't among those

that, that had anything to hide or anything to prove, so, or anything to gain, so yeah,

but obviously, I asked the question in the way that I did.

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[W]as I horribly bothered by it? No, because it was true he didn't go running to the

Disirict Attorney's Office like the other individuals asking for a deal, and I believe

I presented to the jury in the context of, you know, he had nothing to contribute

because he was not involved, and that was the implication.

N.T., PCRA Hearing, 9/27/2021, at 38, 50; id, at 57-89, 6]-62 (explaining the overall trial strategy

of emphasizing Fuller’s culpability); id. at 66 (explaining that he asked the question “to amplify

for the jury [Defendant’s] steadfast position that he was not involved and wasn’t about to take a

at 70, 73 (agreeing that asking

the question was part of his trial strategy and that there was a tactical reason to ask it), Counsel’s

explanation for his strategy is consistent with his line of questioning at trial, where Defendant was

asked numerous questions to distance and distinguish Defendant from Fuller, to contrast Fuller’s

motive with Defendant’s lack of motive. E.g., N.T. Trial, Vol. XII, 2/28/2017, at 260-68: NLT.

Trial, Vol. XHI, 3/1/2017, at 17-18, 23-24, 29-38, 48-56, 66-75. Because Defendant testified,

the Commonwealth could thus attempt to impeach Defendant’s credibility by referring to his pre-

arrest silence, and it is also part of a reasonable trial strategy to preemptively introduce this

information on direct examination. Cf, Commonwealth v. Pursell, 555 Pa. 233, 268-69, 724 A.2d

293, 311 (1999) (finding a reasonable strategic basis to introduce a testifying defendant’s crimen

Jaisi convictions on direct examination).

Finally, the Court finds that Defendant has not shown that he was prejudiced by his

attorney’s question. “[T]he mere revelation of silence does not establish innate prejudice.”

DiNicola, 581 Pa, at 563, 866 A.2d at 336-37 (citing Whitney, 550 Pa. 618, 708 A.2d at 478).

Here, counsel’s question on direct examination was not prejudicial because it was part of his

strategy of showing that Defendant’s lack of involvement meant that he had no reason to cooperate.

N.T. PCRA Hearing, 9/27/2021, at 14-15. Following Defendant’s counsel's objection in

chambers, the Court warned the Commonwealth not to comment on or implicate Defendant’s right

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to remain silent, which the Commonwealth followed. N.T. Trial, Vol. XIII, 3/1/2017, at 89-99.

The Commonwealth’s question and argument merely reiterated Defendant’s position, that he did

not cooperate, unlike Tyrone Fuller. Therefore, none of the references to Defendant's

noncooperation with authorities suggested that this was a tacit admission of his guilt, and

Defendant has not shown that these prejudiced him.

The reality is that the evidence of Defendant’s guilt in this case was overwhelming, as

indicated in the opinions previously entered in this case. Defendant has been convi

unanimous juries, and there is no reason to think that his conviction was the result of his trial

counsel’s comparison of Tyrone Fuller’s self-interested action in seeking a plea agreement with

d. E.g., N.T., PCRA Hearing, 09/27/2021,

at 50 (defendant’s counsel testifying that “it was true he didn't go running to the District Attorney's

Office like the other individuals asking for a deal, and I believe | presented to the jury tn the context

f, you know. he had nothing to contribute because he was not involved, and that was the

implication.”). Defendant's claim has no merit. Because it has no merit, it is denied,

sidebar or in chambers.

Defendant’s sixteenth, seventeenth, and eighteenth issues, the second, third, and fourth

in the Second Amended PCRA Petition, are claims that trial counsel was ineffective

for not seeking to have Defendant present at conferences at sidebar or in chambers, and for not

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communicating with Defendant conceming those conferences, Specifically,

Defendant takes issue with the conferences held at side bar and in chambers which dealt with the

issue of Defendant’s right to silence and counsel’s question concerming whether Defendant had

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At the PCRA hearing, Defendant’s trial counsel testified that he explains the right to silence

to his clients and the right not to testify. N.T., PCRA Hearing, 09/27/2021, at 12. Counsel was

questioned about how he conferred with Defendant, and how Defendant was addressed by the

Court, regarding other issues discussed in chambers and at side bar. Id, at 27 (conference regarding

Tyrone Fuller's refusal to testify), 29-34 (conference regarding jury). Defendant himself indicated

when he testified that trial counsel did consult with him regarding the discussions held in chambers

or at side bar. Id. at 99. Thus, Defendant appears to argue that his trial counsel was ineffective only

for not making Defendant present at, or conferring with him concerning, the conferences held at

side bar or in chambers on the issue of the right to remain silent.

counsel had consulted with Defendant regarding the general trial strategy of discrediting Fuller by

showing that he had taken a deal with the Commonwealth while Defendant had not. Id. at 29-34,

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Ca WaTtCd 1G LCSUTY LW OFC GO Pel Ue Jury DIS S1de, and walved nis Fignt to

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64,

remain silent. Id. at 76-77, 101. The crux of Defendant’s issue, distilled down to its essence, thus

appears to be he did not know that his trial counsel would ask him the specific question about

whether he went “running to the DA’s Office to cooperate.” N.T., PCRA Hearing, 09/27/2021, at

17. Defendant objects that he was not notified of this question in advance under the theory that it

As with the previous issue addressed in this Opinion, Defendant’s claim has no merit

simply because, notwithstanding what prior counsel testified to at the PCRA hearing, and contrary

to what current counsel has argued in this case, trial counsel’s question to Defendant concerning

cooperation could never have caused Defendant to unknowingly waive his nght to remain silent;

that right had already been knowingly waived by Defendant himself when he elected to testify.

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Molina, at 493-94, 104 A.3d at 447 (quoting Raffel v. U.S., 271 U.S. 494, 497, 46 8. Ct. 566, 70

L. Ed. 1054 (1926) (“His waiver is not partial; having once cast aside the cloak of immunity, he

may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.”)).

Accord Bolus, 545 Pa. at 113, 680 A.2d at 844; Kuder, 62 A.3d 1038. Asa testifying witness who

had been properly advised of this right not to testify by both counsel and the Court, and who had

knowingly, voluntarily, and intelligently waived that right, Defendant had waived his right to

remain silent in the face of cross-examination.

Moreover, as indicated in the Court’s consideration of the previous issue, the testimony at

the PCRA hearing from both trial counsel and Defendant make it abundantly clear that, although

the specific form of the question may not have been proposed to Defendant prior to its asking, ihe

substance of the question was well in line with the general trial strategy contemplated by both trial

counsel] and Defendant. Additionally, as explained previously, the Commonwealth was limited by

tb nse to the issue, and the question and argument raised by the Commonwealth

did not implicate Defendant’s right to silence. Nor is it clear, given the volumes of evidence at

trial concerning Defendant’s illegal actions of being involved in an ongoing consnirac

heroin, that this specific issue could in any way have substantially prejudiced Defendant.

Because Defendant’s issues have no arguable merit, because Defendant has failed to prove

and because Defendant was not prejudiced, counsel

was not ineffective. Because counsel was not ineffective, Defendant’s issues have no merit and

are denied.

IV. CONCLUSION

For the aforementioned reasons, the claims raised in Defendant’s PCRA Petition, Amended

PCRA Petition, and Second Amended PCRA Petition are all contrary to the record and without

50

merit. Because each of his claims are without merit, the Court will enter an order denying

Defendant’s request for relief pursuant to the Post Conviction Relief Act.

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