Com. v. Brown, B.

J-S31029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BOBBY BROWN :

:

Appellant : No. 2130 EDA 2021

Appeal from the PCRA Order Entered September 17, 2021

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0000043-2017

BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 22, 2022

Appellant Bobby Brown appeals pro se from the order dismissing his

timely first Post Conviction Relief Act1 (PCRA) petition. Appellant raises

numerous claims of ineffective assistance against trial, appellate, and PCRA

counsel. We affirm.

The facts of this matter are well known to the parties. See

Commonwealth v. Brown, 3469 EDA 2018, 2019 WL 6359023, at *1-3 (Pa.

Super. filed Nov. 27, 2019) (unpublished mem.). Briefly, on November 1,

2016, Appellant went to a garage in Pottstown where Robert Pfanders (the

victim) and Terry Presgrave were working. After an argument about

Appellant’s motorcycle, Appellant shot the victim three times. Immediately

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

J-S31029-22

after the shooting, the victim told Presgrave that the shooter’s name was

“Bobby Brown.” The victim was transported to a hospital and survived his

injuries. After both Presgrave and the victim identified Appellant as the

shooter in photo arrays, an arrest warrant was issued for Appellant.

A prior panel of this Court explained that:

On November 25, 2016, Officer Kevin Gorman of the Philadelphia

Police Department pulled Appellant over to make a routine traffic

stop. Appellant initially provided a false name, identifying himself

as Maurice Brown. When Officer Gorman eventually determined

that the driver’s actual name was Bobby Brown, he took him into

custody under an active warrant out of Pottstown for attempted

homicide.

Thereafter, the Commonwealth filed an information charging

Appellant with offenses related to the shooting. On August 3,

2017, Appellant filed a motion to suppress the identification

evidence. Appellant argued that the photo array lineup was

prejudicial and unduly suggestive because none of the other

photographs resembled Appellant. Following a suppression

hearing on April 2, 2018, the trial court denied Appellant’s motion.

Id. at *3 (citations and quotation marks omitted).

We add that Scott McIntosh, Esq. (trial counsel), represented Appellant

at trial. At trial, Presgrave testified that he saw Appellant holding a gun during

Appellant’s argument with the victim, heard gunshots, and saw the victim fall

to the ground. Immediately after the shooting, the victim told Presgrave that

Bobby Brown had shot him. Presgrave also admitted that he frequently used

methamphetamine, including on the date of the shooting. During closing

arguments, the attorney for the Commonwealth remarked that Appellant

could not account for his whereabouts at the time of the shooting.

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On May 21, 2018, the jury convicted Appellant of attempted murder and

related offenses. The trial court subsequently sentenced Appellant to an

aggregate term of twenty-two-and-a-half to forty-five years’ incarceration.

Appellant filed timely post-sentence motions, which the trial court

denied. Appellant timely appealed. Erin C. Lentz McMahon, Esq. (appellate

counsel) represented Appellant on direct appeal. On appeal, Appellant argued

that the trial court erred in denying his motion to suppress the identification

evidence. Brown, 2019 WL 6359023, at *4. In reviewing Appellant’s claim,

a panel of this Court noted that it could find the issue waived because

Appellant did not include the photo array in the certified record. Id. at *6.

However, the Court ultimately agreed with the trial court’s conclusion that

there was independent evidence to support the identification of Appellant and

affirmed the judgment of sentence. Id. at *6, *10.

The PCRA court summarized the subsequent procedural history as

follows:

Appellant filed a timely pro se [PCRA petition] on September 23,

2020. Sean Cullen, Esq. was appointed to represent Appellant on

October 1, 2020. Attorney Cullen filed a petition to incorporate

and supplement Appellant’s pro se PCRA petition and request for

a hearing on December 30, 2020. . . .

A video conference evidentiary hearing was held on February 2,

2021. Attorney Cullen represented Appellant. At the hearing, the

court heard testimony from trial counsel . . . and Appellant. . . .

* * *

Appellant filed pro se correspondence on March 12, 2021, alleging

collusion between Attorney Cullen and the [Montgomery County]

District Attorney’s Office. On March 26, 2021, Attorney Cullen

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filed a petition for leave to withdraw appearance, citing Appellant’s

allegations of collusion between appointed counsel and the district

attorney’s office.

* * *

On May 4, 2021, a hearing was held regarding Attorney Cullen’s

petition for leave to withdraw. At the hearing, Appellant testified

he lacked confidence in his court-appointed attorney and was in

the process of hiring private counsel. On the same date, Attorney

Cullen’s petition for leave to withdraw appearance was granted. .

..

On June 10, 2021, Thomas D. Kenn[y], Esq. entered his

appearance on behalf of Appellant. Attorney Kenn[y] was

privately retained by Appellant.

* * *

On August 13, 2021, [Attorney Kenny] filed a [brief captioned

“]Statement of Precise Issues Pursued[”] which identified . . . five

issues to be pursued at the continuation of the PCRA hearing on

August 23, 2021[.]

* * *

Argument was held on August 23, 2021. [Attorney Kenny]

acknowledged that the evidentiary record was closed and that the

five issues identified in his [brief] were the only relevant issues

being pursued in the PCRA petition.

* * *

The court took the matter under advisement. On September 17,

2021, after consideration of the filings, arguments of counsel and

evidence presented in the instant matter, this court issued an

order denying the PCRA petition pared down to the five issues

PCRA counsel identified at the August 23, 2021 hearing.

PCRA Ct. Op., 12/20/21, at 2-5 (citations and footnote omitted, formatting

altered).

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Appellant timely filed a pro se notice of appeal2 and a court-ordered

Pa.R.A.P. 1925(b) statement.3 Appellant subsequently filed correspondence

with the PCRA court indicating that he wished to proceed pro se on appeal.

Attorney Kenny filed an application with this Court to withdraw as counsel.

On December 2, 2021, the PCRA court conducted a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), and granted Appellant’s

request to proceed pro se.4,5

Appellant raises the following issues for our review, which we restate

and reorder as follows:

____________________________________________

2 Although Appellant was represented by Attorney Kenny when he filed his pro

se notice of appeal, the rule against hybrid representation does not render the

timely pro se notice of appeal a legal nullity. See Commonwealth v.

Williams, 151 A.3d 621 (Pa. Super. 2016) (explaining that because a notice

of appeal protects constitutional rights, it is distinguishable from other filings

that require counsel, and this Court is required to docket pro se notice of

appeal despite the appellant being represented by counsel).

3 The PCRA court noted that Appellant served his Rule 1925(b) statement on

the PCRA court judge and the Commonwealth, but that he failed to file a copy

with Clerk of Courts. See PCRA Ct. Op. at 5 n.3. Nevertheless, the PCRA

court treated Appellant’s Rule 1925(b) statement as properly filed and the

PCRA court submitted a copy of the statement to the Clerk of Courts for filing.

See id.

4 Although the PCRA court quotes from the transcript of the December 2, 2021

Grazier hearing in its Rule 1925(a) opinion, see PCRA Ct. Op. at 6-8, that

transcript is not included in certified record. However, because Appellant is

not challenging the PCRA court’s ruling in the Grazier hearing, the absence

of the transcript does not impede our review.

5This Court granted Attorney Kenny’s application to withdraw as counsel on

December 6, 2021.

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1. Whether the PCRA court erred in not granting relief on the

PCRA petition alleging that trial counsel was ineffective for

failing to file a motion to preclude Appellant’s prior bad acts?

2. Whether the PCRA court erred in not granting relief on the

PCRA petition alleging that trial counsel was ineffective for

failing to file a motion to exclude the victim’s hearsay

statement identifying Appellant as his assailant?

3. Whether the PCRA court erred in not granting relief on the

PCRA petition alleging that trial counsel was ineffective for

failing to impeach Terry Presgrave?

4. Whether the PCRA court erred in not granting relief on the

PCRA petition alleging that trial counsel was ineffective for

failing to contest the identification evidence?

5. Whether the PCRA court erred in not granting relief on the

PCRA petition alleging that trial counsel was ineffective for

failing to object to prejudicial remarks in the Commonwealth’s

closing regarding Appellant’s Fifth Amendment rights?

Appellant’s Brief at 5.6

____________________________________________

6 In his brief, Appellant argues approximately ten additional issues that he did

not include in his statement of questions presented. See Appellant’s Brief at

5, 14-17, 24-43. “[A]lthough this Court is willing to construe liberally

materials filed by a pro se litigant, pro se status generally confers no special

benefit upon an appellant. Accordingly, a pro se litigant must comply with the

procedural rules set forth in the Pennsylvania Rules of the Court.”

Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003)

(citations omitted). Because Appellant failed to include these issues in his

statement of questions presented, they are waived. See Pa.R.A.P. 2116(a)

(stating that “[n]o question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby”); see also

Commonwealth v. Hodge, 144 A.3d 170, 172 n.4 (Pa. Super. 2016).

Additionally, an appellant may not raise new issues in his reply brief.

Therefore, the issues that Appellant raised for the first time in his reply brief

are also waived. See, e.g., Commonwealth v. Fahy, 737 A.2d 214, 219

n.8 (Pa. 1999).

(Footnote Continued Next Page)

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Trial Counsel’s Failure to File Motions in Limine

In his first two issues, Appellant claims that trial counsel was ineffective

for failing to file motions in limine to exclude: (1) Appellant’s prior bad acts

and (2) the victim’s statement that Appellant shot him. Appellant’s Brief at

12-13, 49-50.

Appellant argues that trial counsel was ineffective for failing to seek the

exclusion of Appellant’s prior bad acts under Pa.R.E. 404(b). Appellant’s Brief

at 12-13. Specifically, Appellant contends that Officer Gorman’s testimony

was inadmissible under Pa.R.E. 404(b) because it tended to prove Appellant

acted in conformance with prior bad acts. Id. at 13.7

____________________________________________

We also note that Appellant presented eight additional issues in his Rule

1925(b) statement. See Rule 1925(b) Statement, 12/2/21, at 1-2. However,

in his brief on appeal, Appellant has not raised or presented any argument

relative to these other claims of error. Accordingly, Appellant has abandoned

those issues on appeal. See Pa.R.A.P. 2116(a), 2119(a); see also

Commonwealth v. McGill, 832 A.2d 1014, 1018 n.6 (Pa. 2003) (finding

waiver where the appellant abandoned claim on appeal).

7 Appellant also claims that trial counsel was ineffective for failing to present

the police property receipt from the night of Appellant’s arrest to rebut Officer

Gorman’s testimony. Appellant’s Brief at 12. Appellant asserts that trial

counsel and PCRA counsel suborned perjury and procedural misconduct. Id.

Appellant additionally argues that Officer Gorman’s trial testimony was not

reliable because Officer Gorman was named in a Philadelphia Inquirer article

of Philadelphia Police Department officers who the Philadelphia District

Attorney’s Office considered to be untrustworthy. Id. at 13. Therefore,

Appellant contends that the Commonwealth violated his constitutional rights

by knowingly using false evidence to convict him. Id. Appellant did not raise

any of these claims in either his Rule 1925(b) statement or in the statement

of questions involved in his appellate brief. Therefore, they are waived. See

Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

(Footnote Continued Next Page)

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Appellant also argues that trial counsel was ineffective for failing to file

a motion in limine to exclude the victim’s statement that Appellant shot him

because its potential for unfair prejudice outweighed its probative value. Id.

at 49-50. Further, Appellant contends that the victim’s statement was of an

emotional nature and was likely to confuse and mislead the jury. Id. at 50.8

In reviewing the denial of a PCRA petition, our standard of review

is limited to examining whether the PCRA court’s determination is

supported by the evidence of record and whether it is free of legal

error. The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we

apply a de novo standard of review to the PCRA court’s legal

conclusions.

Furthermore, to establish a claim of ineffective assistance of

counsel, a defendant must show, by a preponderance of the

evidence, ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or

innocence could have taken place. The burden is on the defendant

to prove all three of the following prongs: (1) the underlying claim

is of arguable merit; (2) that counsel had no reasonable strategic

basis for his or her action or inaction; and (3) but for the errors

and omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different.

____________________________________________

are waived”), 2116(a) (stating that “[n]o question will be considered unless it

is stated in the statement of questions involved or is fairly suggested

thereby”).

8 Appellant also claims that trial counsel was ineffective for failing to (1)

present evidence regarding the discrepancies between the victim’s statement

and the condition of the crime scene; (2) request a limiting instruction; (3)

retain a medical expert to testify about how the victim’s substance use

affected his perceive the attack. Appellant’s Brief at 49-50. Appellant did not

raise any of these claims in either his Rule 1925(b) statement or in the

statement of questions involved in his appellate brief. Therefore, they are

waived. See Pa.R.A.P. 1925(b)(4)(vii), 2116(a).

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We have explained that a claim has arguable merit where the

factual averments, if accurate, could establish cause for relief.

Whether the facts rise to the level of arguable merit is a legal

determination.

The test for deciding whether counsel had a reasonable basis for

his action or inaction is whether no competent counsel would have

chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success.

Counsel’s decisions will be considered reasonable if they

effectuated his client’s interests. We do not employ a hindsight

analysis in comparing trial counsel’s actions with other efforts he

may have taken.

Prejudice is established if there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.

Boilerplate allegations and bald assertions of no reasonable basis

and/or ensuing prejudice cannot satisfy a petitioner’s burden to

prove that counsel was ineffective. Moreover, a failure to satisfy

any prong of the ineffectiveness test requires rejection of the

claim of ineffectiveness.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)

(citations omitted and formatting altered). It is well settled that “[c]ounsel

will not be deemed ineffective for failing to raise a meritless claim.”

Commonwealth v. Washington, 927 A.2d 586, 608 (Pa. 2007) (citation

omitted). Additionally, counsel cannot be deemed ineffective for failing to

perform an act that counsel actually performed. See, e.g., Commonwealth

v. Gwynn, 943 A.2d 940, 946 (Pa. 2008) (concluding that the defendant’s

“claim that appellate counsel was ineffective for failing to raise trial counsel’s

ineffectiveness on direct appeal is meritless since it was, in fact, raised”).

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Here, Appellant has raised only bald assertions of prejudice regarding

the admission of this evidence. A PCRA petitioner has the burden to plead

and prove prejudice, i.e., “there is a reasonable probability that, but for

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

Sandusky, 203 A.3d at 1043-44. Therefore, Appellant has failed to establish

that he is entitled to relief on these claims. See id.

Trial Counsel’s Failure to Impeach Presgrave

In his third issue, Appellant argues that trial counsel was ineffective for

failing to impeach Presgrave regarding his prior inconsistent statements.

Appellant’s Brief at 8-11. Specifically, Appellant noted that during trial,

Presgrave testified that his memory of the shooting was foggy because he had

taken drugs that day. Id. Appellant contends that trial counsel failed to

introduce the statement in which Presgrave denied that he was under the

influence of alcohol or drugs on the day of the shooting.9 Id. Appellant also

argues that trial counsel failed to impeach Presgrave regarding his inconsistent

statements about whether he saw the shooting and the description of the

shooter he gave to the police. Id.

The PCRA court addressed Appellant’s claim as follows:

____________________________________________

9 Appellant also asserts that Presgrave committed perjury and the

Commonwealth violated Appellant’s constitutional rights by knowingly

presenting or failing to correct Presgrave’s false testimony. Appellant’s Brief

at 8-11. Appellant did not raise any of these claims in either his Rule 1925(b)

statement or in the statement of questions involved in his appellate brief.

Therefore, they are waived. See Pa.R.A.P. 1925(b)(4)(vii), 2116(a).

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This issue is also without merit. Trial counsel cross-examined Mr.

Presgrave regarding his drug use on the day of the incident, his

drug habit in general, and open drug charges related to

methamphetamine. See [N.T. Trial, 5/17/18, at 71-77]. Mr.

Presgrave admitted that his ability to perceive events that day was

impaired and his memory was “foggy.” Id. at 78. [Trial counsel]

also cross-examined Mr. Presgrave regarding the victim’s

enemies. Id. at 81-82. At the February 2, 2021 PCRA hearing,

[trial counsel] recalled that the bulk of his cross-examination of

the witnesses and the victim “was about them using meth that

day. And [he] asked both of them about, ‘When you use meth,

you stay up for days, right? And how does staying up for days

doing drugs affect your ability to perceive events or to recall what

happened?’” [N.T. PCRA Hr’g, 2/2/21, at 33].

[Trial counsel’s] cross-examination at trial was reasonable and

Appellant has failed to prove a different alternative “offered a

potential for success substantially greater than the course actually

pursued.” Commonwealth v. Chmiel, 30 A.3d 1111, 1127 [(Pa.

2011)] (citing [Commonwealth v. Williams, 899 A.2d 1060,

1064 (Pa. 2006)] (citation omitted)). Therefore, Appellant is

unable to demonstrate this allegation merits PCRA relief.

PCRA Ct. Op. at 21.

Based on our review of the record, we agree with the PCRA court’s

conclusion. Trial counsel cross-examined Presgrave regarding his use of

methamphetamine and the effects it had on his perception and memory. Trial

counsel also questioned Presgrave about the inconsistencies between

Presgrave’s trial testimony and the statement he gave to the police. See N.T.

Trial, 5/17/18, at 71-78, 80-81. A petitioner cannot establish counsel was

ineffective for failing to perform an act that counsel actually performed. See

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Gwynn, 943 A.2d at 946. Therefore, Appellant is not entitled to relief on this

claim.10

Trial Counsel’s Failure to Contest Identification Evidence

In his fourth issue, Appellant argues that trial counsel was ineffective

for failing to adequately contest the identification evidence. Appellant’s Brief

at 18-23. Specifically, Appellant contends that trial counsel failed to

adequately cross-examine the officers regarding their compliance with police

procedures regarding the use of photo arrays. Id. at 22-23. He also claims

that trial counsel was ineffective for failing to retain an expert regarding

eyewitness identification. Id. at 21-23. Lastly, he argues that counsel11 was

ineffective for failing to preserve the photo array for appeal. Id. at 21.

Our Supreme Court has held that when this Court finds an issue waived

on direct appeal but then alternatively concludes that the issue is meritless,

the ruling on the merits is a valid holding that constitutes the law of the case

____________________________________________

10 As noted previously, the PCRA court concluded that Appellant was not

entitled to relief because he failed to prove that trial counsel’s chosen strategy

lacked a reasonable basis by showing the alternative not chosen offered

greater potential for success. PCRA Ct. Op. at 21. Although we affirm the

PCRA court’s ruling on a different basis, we note that it “is well settled that

where the result is correct, an appellate court may affirm a lower court’s

decision on any ground without regard to the ground relied upon by the lower

court itself.” Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa. Super.

2022) (citations omitted), appeal denied, --- A.3d ---, 153 WAL 2022, 2022

WL 6915277 (Pa. filed Oct. 12, 2022).

11 Appellant does not specify if he is referring to trial counsel, appellate

counsel, or both with respect to this claim.

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with respect to that issue. See Commonwealth v. Reed, 971 A.2d 1216,

1220 (Pa. 2009). Further, because the ruling on the merits of the issue is the

law of the case, it constrains this Court’s review of the same issue in

subsequent collateral proceedings, even if it is nested in an ineffective

assistance of counsel claim. See id. at 1220, 1227.

Here, the PCRA court concluded that this claim was meritless because

even though the photo array was not included in the certified record, a panel

of this Court affirmed the order denying Appellant’s motion to suppress on

direct appeal. See PCRA Ct. Op. at 22 (citing Brown, 2019 WL 6359023 at

*6).

Based on our review of the record, we agree with the PCRA court’s

conclusion. As noted by the PCRA court, a prior panel of this Court affirmed

the trial court’s order denying Appellant’s motion to suppress on the merits

instead of finding the claim waived. See Brown, 2019 WL 6359023 at *6.

Because this Court’s prior ruling on the merits of Appellant’s claim constitutes

the law of the case, Appellant cannot establish that either trial or appellate

counsel was ineffective regarding the suppression of the identification

evidence. See Reed, 971 A.2d at 1227 (affirming denial of PCRA claim that

trial counsel was ineffective because this Court previously held that the

underlying issue was meritless on direct appeal). Accordingly, Appellant is

not entitled to relief on this claim.

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Trial Counsel’s Failure to Object to Commonwealth’s Closing

In his fifth issue, Appellant argues that trial counsel was ineffective for

failing to object to prejudicial remarks in the Commonwealth’s closing

arguments. Appellant’s Brief at 45-48. Specifically, Appellant notes that

during her closing argument, the prosecutor stated that Appellant could not

account for his whereabouts at the time of the shooting. Id. at 45-47 (citing,

inter alia, N.T. Trial, 5/21/18, at 30). Appellant contends that this remark

inappropriately referred to Appellant’s exercise of his Fifth Amendment right

against self-incrimination. Id. at 45. Appellant claims that he was prejudiced

by trial counsel’s failure to object to the prosecutor’s remarks because those

remarks “injected a highly prejudicial personal opinion regarding [Appellant’s]

guilt[.]”12 Id. at 47.

Our Supreme Court has explained that

a claim of ineffective assistance grounded in trial counsel’s failure

to object to a prosecutor’s conduct may succeed when the

petitioner demonstrates that the prosecutor’s actions violated a

constitutionally or statutorily protected right, such as the Fifth

Amendment privilege against compulsory self-incrimination or the

Sixth Amendment right to a fair trial, or a constitutional interest

____________________________________________

12 Appellant additionally argues that trial counsel was ineffective for failing (1)

object to the prosecutor’s “material misrepresentation of the facts that was in

contradiction to [the] physical evidence[,]” (2) present exculpatory evidence

he had received in discovery, (3) argue inconsistencies in the

Commonwealth’s evidence during his closing, and (4) object to the trial court’s

denial of the jury’s request to review witness statements during deliberations.

Appellant’s Brief at 45-47. Appellant did not raise any of these claims in either

his Rule 1925(b) statement or in the statement of questions involved in his

appellate brief. Therefore, they are waived. See Pa.R.A.P. 1925(b)(4)(vii),

2116(a).

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such as due process. To constitute a due process violation, the

prosecutorial misconduct must be of sufficient significance to

result in the denial of the defendant’s right to a fair trial. The

touchstone is fairness of the trial, not the culpability of the

prosecutor. Finally, not every intemperate or improper remark

mandates the granting of a new trial; reversible error occurs only

when the unavoidable effect of the challenged comments would

prejudice the jurors and form in their minds a fixed bias and

hostility toward the defendant such that the jurors could not weigh

the evidence and render a true verdict.

* * *

This Court has recognized that counsel are not constitutionally

required to forward any and all possible objections at trial, and

the decision of when to interrupt oftentimes is a function of overall

defense strategy being brought to bear upon issues which arise

unexpectedly at trial and require split-second decision-making by

counsel. Under some circumstances, trial counsel may forego

objecting to an objectionable remark or seeking a cautionary

instruction on a particular point because objections sometimes

highlight the issue for the jury, and curative instructions always

do.

Commonwealth v. Koehler, 36 A.3d 121, 144, 146 (Pa. 2012) (citations

omitted and formatting altered); see also Commonwealth v. Campbell,

260 A.3d 272, 280-81 (Pa. Super. 2021) (stating that “[a] prosecutor’s

comments must be examined within the context of defense counsel’s conduct,

and the prosecutor may fairly respond to points made by the defense.

Moreover, prosecutorial misconduct will not be found where comments were

based on the evidence or proper inferences therefrom or were only oratorical

flair” (citations omitted and formatting altered)), appeal denied, --- A.3d ---,

27 EAL 2022, 2022 WL 3053299 (Pa. filed Aug. 3, 2022).

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Further our Supreme Court has explained that “[t]he jury is presumed

to have followed the court’s instructions.” Chmiel, 30 A.3d at 1147 (citation

omitted).

Here the PCRA court explained:

During its final jury instruction, the court specifically advised the

jury that they were not to draw any adverse inference from the

fact that Appellant did not testify . . . . [N.T. Trial, 5/21/18, at

59.]

* * *

The court further advised that it was not Appellant’s burden to

prove his innocence, and that the statements made by counsel

during opening and closing statements were not evidence and

should not be considered as such. Id. at 59, 62-63, 66-67.

* * *

The court has determined that the statement made during closing

arguments by the prosecutor did not assault Appellant’s

constitutional protections pursuant to the Fifth Amendment’s

privilege against compulsory self-incrimination or the Sixth

Amendment’s right to a fair trial. Nor did the remark result in the

denial of Appellant’s right to a fair trial. Further, the court’s final

jury charge was curative of any impropriety.

Because the prosecutor’s remark was not of sufficient significance

to result in the denial of the defendant’s right to a fair trial, trial

counsel’s failure to object during the closing argument is

meritless. As such, Appellant’s claim of ineffectiveness in this

regard fails to satisfy the “arguable merit” prong of the [ineffective

assistance of counsel] test. Further, any effect of the prosecutor’s

remark was cured by the jury instruction given by the court prior

to jury deliberation.

PCRA Ct. Op. at 25-27 (some citations omitted).

Based on our review of the record, we agree with the PCRA court’s

conclusions. The prosecutor’s comment did not have the unavoidable effect

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of forming a fixed bias in the minds of the jurors such that it denied Appellant

a fair trial. See Koehler, 36 A.3d at 144. Further, the trial court instructed

the jurors that they could not make any adverse inferences from the fact that

Appellant did not testify, that the Commonwealth had the burden of proof,

and that counsel’s arguments were not evidence. See N.T. Trial, 5/21/18, at

59, 66-67. Jurors are presumed to follow the trial court’s instructions. See

Chmiel, 30 A.3d at 1147. For these reasons, we conclude that Appellant’s

claim that the prosecutor inappropriately referred to Appellant’s silence lacks

arguable merit, and counsel “will not be deemed ineffective for failing to raise

a meritless claim.” Washington, 927 A.2d at 608. Therefore, Appellant is

not entitled to relief on this issue. See Sandusky, 203 A.3d at 1044.

Ineffectiveness of PCRA Counsel

Lastly, Appellant has raised several claims of ineffective assistance of

PCRA counsel,13 alleging that PCRA counsel failed to raise and/or develop

various claims in their filings and failed to present evidence at the evidentiary

hearing. Appellant’s Brief at 8, 12, 14, 23-25, 45-46, 52; Appellant’s Reply

Brief at 1-2 (unpaginated).

Although Appellant has raised these claims for the first time on appeal,

our Supreme Court held in Commonwealth v. Bradley, 261 A.3d 381 (Pa.

2021), that a PCRA petitioner may, after a PCRA court denies relief and after

____________________________________________

13 Appellant refers to “PCRA counsel” in his brief without specifying if he is

referring to Attorney Cullen or Attorney Kenny. Therefore, we refer to

Attorney Cullen and Attorney Kenny collectively as “PCRA counsel.”

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obtaining new counsel or acting pro se, raise claims of PCRA counsel’s

ineffectiveness at the first opportunity to do so, even on appeal. See

Bradley, 261 A.3d at 405. Because Appellant’s appeal was pending when our

Supreme Court decided Bradley, it is applicable to this appeal. See

Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (stating

that “Pennsylvania appellate courts apply the law in effect at the time of the

appellate decision” (citations omitted)).

At the outset, we note that Appellant has not raised any of his claims of

ineffective assistance of PCRA counsel in his statement of the questions

involved. Therefore, we conclude that these claims are waived. See Pa.R.A.P.

2116(a) (stating that “[n]o question will be considered unless it is stated in

the statement of questions involved or is fairly suggested thereby”); see also

Hodge, 144 A.3d at 172 n.4 (noting that a claim that the appellant argued in

his brief but failed to include in his statement of questions presented was

waived).

In any event, were we to reach these claims of error, we would be

constrained to find them waived due to Appellant’s failure to develop them

beyond bald assertions of PCRA counsel’s ineffectiveness. See Sandusky,

203 A.3d at 1044. Therefore, we conclude that it is not necessary to remand

this matter to the PCRA court for further consideration.14 Cf. Bradley, 261

____________________________________________

14 In his reply brief, Appellant argues that PCRA counsel was ineffective for

failing to challenge the legality of his sentence under Apprendi v. New

(Footnote Continued Next Page)

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A.3d at 402 (explaining that “to advance a request for remand [for further

development of the record, an appellant] would be required to provide more

than mere boilerplate assertions of PCRA counsel’s ineffectiveness” (citation

and quotation marks omitted)). Accordingly, Appellant is due no relief on

these issues.

For these reasons, we discern no error or abuse of discretion by the

PCRA court in denying Appellant’s petition. Therefore, we affirm the PCRA

court’s order.

Order affirmed.

____________________________________________

Jersey, 530 U.S. 466 (2000) and United States v. Alleyne, 570 U.S. 99

(2013). Appellant’s Reply Brief at 2 (unpaginated). Although under Bradley,

Appellant may raise this ineffectiveness claim on appeal for the first time, we

conclude that it is waived for the reasons stated above.

We also note that the underlying legality of the sentence claims are meritless.

“‘[U]nder the Due Process Clause of the Fifth Amendment and the notice and

jury trial guarantees of the Sixth Amendment, any fact (other than prior

conviction) that increases the maximum penalty for a crime must be charged

in an indictment, submitted to a jury, and proven beyond a reasonable

doubt.’” Commonwealth v. King, 234 A.3d 549, 560 (Pa. 2020) (quoting

Apprendi, 530 U.S. at 476 (additional citation omitted)). Here, the jury found

that the Commonwealth proved beyond a reasonable doubt that Appellant

inflicted serious bodily injury. See N.T. Trial, 5/21/18, at 103. Therefore,

Appellant’s sentence of twenty to forty years’ incarceration under 18 Pa.C.S.

§ 1102(c) is a legal sentence. See Apprendi, 530 U.S. at 476; King 234

A.3d at 560. Alleyne is not applicable to Appellant’s sentence because 18

Pa.C.S. § 1102(c) does not provide for a mandatory minimum sentence. Cf.

Alleyne, 570 U.S. at 111-16 (requiring that the jury must find that the

prosecution proved any facts that increase the mandatory minimum sentence

beyond a reasonable doubt).

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2022

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