Com. v. Powell, G.

J-S11005-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GREGORY POWELL :

:

Appellant : No. 2143 EDA 2021

Appeal from the PCRA Order Entered September 20, 2021

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

No(s): CP-51-CR-0100741-1998

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 8, 2023

Appellant, Gregory Powell, appeals from the September 20, 2021 order

entered in the Court of Common Pleas of Philadelphia County that dismissed

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

Our Supreme Court previously summarized the factual history as

follows:

[The victim] was born [in] November [] 1991, the son of [Mother],

with whom [Appellant] had an ongoing relationship for a number

of years that included periods of cohabitation. Whether or not

[the victim] was [Appellant's] biological child was disputed at trial;

however, it was undisputed that [Appellant's] name appears on

[the victim’s] birth certificate as his father, that [the victim] knew

[Appellant] as his father, and that [Appellant] held out [the victim]

as his biological son. [The victim] lived with [Mother] or his

maternal grandmother for the majority of his life, but [Appellant]

obtained custody of [the victim] in 1997, while [Mother] was in a

residential treatment program for addictions to cocaine and

alcohol. After [Appellant] obtained custody, [the victim] was

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exclusively under his care and control, seeing [Mother] on only a

few occasions before his death.

Appellant and [the victim] resided [in a first-floor apartment

located] in Philadelphia, [Pennsylvania.] A neighbor[], who lived

in the second floor rear apartment of the building, often saw [the

victim] and [Appellant], and had regular access to their apartment

to spray insecticides. According to [the neighbor], the apartment

was always neat and clean, but he often noticed that [the victim]

had dark circles around his eyes and that he “appeared frail.” At

least twice a week during the nine to twelve months leading up to

the murder, [the neighbor] heard [Appellant] cursing and yelling

at [the victim] that he [] told him time and time again not to do

things and to “shut the fuck up.” [The neighbor] heard furniture

being knocked over or pushed about, the sound of blows, and [the

victim] crying and pleading with [Appellant] to stop. While [the

neighbor] never spoke with [Appellant] about what he heard, he

did call the police and the Department of Human Services to report

the abuse. The police came to investigate, but at the time, they

found nothing amiss and they left.

Because [Appellant] worked evenings, [the victim] was cared for

in his paternal grandmother's home by his grandmother and uncle

from after school until approximately 11:00 p.m. on school days,

after which [Appellant] would pick [the victim] up and take him

home. Appellant's brother[] lived four blocks from [the paternal

grandmother’s house] and saw [the victim] frequently. [The

brother] noticed that [the victim] was frequently bruised or

injured, and later said that both he and his mother were

“suspicious” of [the victim’s] myriad [of] wounds. Less than a

month before [the victim] was murdered, [the brother] noticed

that [the victim] had a large knot on his forehead that lasted two

to three weeks, as well as a black eye. A week before the murder,

[the brother] touched [the victim] on [the] sides [of his body,]

and [the victim] moaned and said that his sides were sore. [The

brother] later stated that the shape of [the victim’s] face []

actually begun to change from the frequent injuries, and [] started

to look “like a prizefighter's face that had been in a lot of fights,

like someone had been beating on it a lot.”

Other than [Appellant's] mother and brother, few people ever saw

or spoke with [the victim] outside of [Appellant's] presence. [The

victim] saw [Mother] only three times between March and

November 1997. While [Mother] asked [Appellant] to allow her

to see [the victim] on other occasions, [Appellant] claimed that

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[the victim] was sick or that he did not have time to bring him for

a visit. Appellant walked [the victim] to school every morning and

[the victim’s] teacher remembers a polite and friendly child with

a nice smile; however, for several weeks before [the victim’s]

death, he did not attend school. [An] acquaintance of [Appellant],

saw [the victim] several times during the month-long period

leading to his death, but [Appellant] would not allow her to see

[the victim] outside of his presence and would not allow [the

victim] to play with [the acquaintance’s] children. [The

acquaintance] testified that at one time, she went to [the victim’s

bed]room to talk with him and [Appellant] followed her and did

not allow [the victim] to speak for himself. Appellant told [the

acquaintance] that [the victim] did not appreciate what

[Appellant] was doing for him, that he “always wanted his way,”

and that once, when [the victim] asked for a glass of water but

then drank very little of it, [Appellant] threw the rest of the water

into the six-year-old [victim’s] face. When [the acquaintance]

asked why, [Appellant] explained that after that incident, [the

victim] “never did it again.” [The acquaintance] also noticed that

during the month before his death[, the victim] was always sick,

and that the day before he died he had a large lump on his

forehead. Appellant told her that [the victim] was clumsy and fell

a lot.

Events the night of [the victim’s] murder unfolded as follows. At

some point in the evening of November 20, 1997, [Appellant]

called his mother's house, spoke with his brother, [] and told him

that [the victim] hit his head on the wall and would not wake up.

Leaving [the victim] at his apartment, [Appellant] then went to

his mother's house and told his mother and brother that he could

not wake [the victim], and that [the victim] had been playing

when he ran into the wall. Appellant called 911 [emergency

services] from his mother's house.

At approximately 11:00 p.m., Philadelphia firefighters[,] serving

on collateral duty as [emergency medical services (“EMS”)]

personnel, were summoned to [Appellant's] apartment. They

arrived to find the building dark and vacant. They were unable to

gain entry, but [Appellant] then appeared and approached them.

When [Appellant] informed [the firefighters] that he summoned

them to the house because something was wrong with his son,

the [firefighters] detected the odor of alcohol on his breath.

Appellant let the firefighters into his apartment, where [the victim]

was lying on the sofa covered with a blanket. From the color of

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[the victim’s] skin, [the firefighters] could immediately tell that

[the victim] was dead. When asked what [] happened, [Appellant]

said that [the victim fell] in the bathtub and hit his head at

approximately 9:00 p.m. that night. [One of the firefighters] saw

no head wounds on [the victim] but did observe bruising on his

chest and abdomen. When [the firefighter] asked [Appellant] why

he waited so long to call 911 [emergency services, Appellant] did

not respond. [The victim] was then transported to the [hospital],

where he was pronounced dead upon arrival.

The doctor who examined [the victim’s] body reported that the

bruises observed by [the firefighter] were “suspicious,” and [a

police officer] was summoned to the hospital. [The police officer]

spoke with [Appellant] in the waiting room of the hospital, and

[Appellant] told him that [the victim] had been running in the

house, fell, and hit his head. Appellant said that [the victim] was

in and out of consciousness after the head injury, and that he tried

to perform [cardiopulmonary resuscitation (“CPR”) on the victim].

Appellant stated that [the victim] was still breathing when he put

him down to sleep on the couch, and that after putting [the victim]

down, [Appellant] went to sleep himself. When he woke,

[Appellant] claimed that [the victim] stopped breathing, so he

called 911 [emergency services]. According to [the police officer,

Appellant's] manner was nervous and distracted.

Appellant spoke with several other people while at the hospital or

shortly afterwards. Appellant called [the acquaintance] and told

her that he [] called [the victim] into the kitchen for dinner, and

that when [the victim] came in, he hit his head on the wall and

fell. Appellant said that [the victim] would not wake up, so he put

cold water in the bathtub and put the [victim] in the tub. When

he still did not regain consciousness, [Appellant] gave [the victim]

mouth-to-mouth resuscitation and then brought him in the living

room and placed him on the [couch]. When [the acquaintance]

asked why [Appellant] did not contact someone or take him to the

hospital, [Appellant] stated that “it had happened before” and he

had “brought him back.” Appellant also told [the acquaintance]

that he had gotten high that day, and that if he had not been high,

perhaps he could have reacted better.

Appellant also discussed [the victim’s] death with [a second

neighbor] the day after [the victim’s] death. Appellant brought

two beers over to [the second neighbor’s] house, gave [the

second neighbor] one, and said that he thought he [] killed his

son. Appellant told [the second neighbor] that [the victim]

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“wouldn't shut up,” and that he hit [the victim] “all night” to get

him to stop crying. Appellant told [the second neighbor] that

“every time [the victim] would cry, he would beat him. Then he

would shut up and he would cry again, then [Appellant] would

beat him some more. Then he would cry again, then he stomped

him.” Shortly before leaving, [Appellant] told [the second

neighbor], “what's done is done, fuck it.” [The second neighbor]

called the police.

The same day, police crime[-]scene[-]unit personnel went to

[Appellant’s] apartment to photograph the scene. Two sections

of drywall in the kitchen were caved in. The [police] officers could

not determine when the damage [] occurred, but there was no

plaster dust, which indicated that the damage was not recent.

Appellant was charged with endangering the welfare of a child and

first-degree murder. A jury trial commenced on October 31, 2000.

At trial, the Commonwealth presented the testimony of [Mother,

the acquaintance, the brother, and the second neighbor], as well

as significant medical testimony. The medical examiner, Dr. Erwin

Lieberman [(“Dr. Lieberman”)], testified that [the victim] had

“more than ten” fresh injuries, as well as numerous healing

injuries and old scars. The new injuries were on the [victim’s]

head, chest, collarbone, upper back, lower back, elbows, and

mouth, including a recently broken tooth. According to [Dr.

Lieberman], the head and mouth injuries were caused by blunt

force trauma with a relatively padded instrument, such as a hand.

Additionally, there was extensive hemorrhaging in [the victim’s]

thymus gland, which is located high up on the chest, fluid in [the

victim’s] lungs[,] and traumatic brain injury. [Dr. Lieberman]

explained that the fluid in [the victim’s] lungs was caused by a

seizure, which was brought on by blows to the head. Dr.

Lieberman testified that, during the seizure, [the victim] would

have exhibited involuntary jerking movements, his eyes would

have rolled back in his head, and foam would have come from his

nose and mouth due to the water building up in his lungs. Dr.

Lieberman testified that the manner of death was multiple blunt

force injuries and that the cause of death was homicide. Dr.

Lieberman also stated that the injuries [the victim] sustained

would have killed not just a small child, but also “an 18-year-old

or a 40-year-old.”

A neuropathologist, Dr. Lucy B. Rorke [(“Dr. Rorke”)], examined

[the victim’s] brain, spine, and eyes, and found both acute injuries

(inflicted within twelve to twenty-four hours of death) and older

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injuries. The oldest brain injuries were “several months old.” Dr.

Rorke testified that there were hemorrhages in [the victim’s] eyes,

as well as under and along the membranes that cover the brain.

Some of the hemorrhages had been present for some time, while

there was also acute bleeding in the brain, blood clots, and

evidence of oxygen deprivation. Dr. Rorke also testified that fluid

in [the victim’s] brain was stained with blood, and that there was

bleeding in his spinal cord that was several weeks old. She noted

that [the victim’s] brain displayed evidence of acute oxygen

deprivation. Dr. Rorke testified that [] the injuries she described

were typically secondary to trauma, of a type commonly found in

battered and traumatized infants. Although the injuries were not

externally apparent, Dr. Rorke added that the older retinal

hemorrhaging could have been detected had a doctor looked into

[the victim’s] eyes. The recent injuries were detectable only

during autopsy.

In his defense, [Appellant] presented the testimony of his mother,

[] his landlord, [the victim’s] kindergarten teacher, a family friend,

a school crossing guard, [Appellant's] work supervisor who had

met [the victim] on a few occasions, and [the victim’s] primary

care physician, all of whom testified that they never noticed any

signs of abuse and that [the victim] appeared to be a happy and

normal child. However, [the victim’s] kindergarten teacher also

testified that [the victim] had not been in school for over a week

before his death.

Commonwealth v. Powell, 956 A.2d 406, 414 (Pa. 2008) (record citations,

extraneous capitalization, footnote, and original brackets omitted), cert.

denied, 556 U.S. 1131 (2009). A jury convicted Appellant of first-degree

murder and endangering the welfare of a child.1 Powell, 956 A.2d at 414.

The penalty phase began on November 27, 2000. The

Commonwealth incorporated the trial evidence, while [Appellant]

testified on his own behalf and presented the testimony of his

mother and his [other] brother[.] The Commonwealth submitted

three aggravating factors to the jury: (1) that the victim was

under twelve years of age; (2) that the offense was committed by

____________________________________________

1 18 Pa.C.S.A. §§ 2502(a) and 4304, respectively.

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means of torture; and (3) that [Appellant] had a significant history

of felony convictions involving the use or threat of violence to the

person. Three mitigating circumstances were also presented: (1)

that [Appellant] was under the influence of extreme mental or

emotional disturbance; (2) the capacity of [Appellant] to

appreciate the criminality of his conduct or to conform his conduct

to the requirements of law was substantially impaired; and (3) the

catchall mitigator. The jury found all three aggravating

circumstances, and wrote in as a mitigating circumstance,

“mercy.” The jury concluded that the aggravating circumstances

outweighed the non-statutory mitigating circumstance, and,

accordingly, returned a verdict of death for [Appellant's]

first-degree murder conviction. Appellant filed a motion in arrest

of judgment and for a new trial. At that time, [Appellant's] original

[trial] counsel was permitted to withdraw, and new counsel was

appointed. The motion in arrest of judgment and for a new trial

was denied, and [Appellant] was formally sentenced to death for

[first-degree] murder, and to three and one-half to seven years'

incarceration for endangering the welfare of a child, to be served

concurrently. A second post-sentence motion was filed on May

29, 2001, and denied.

Id. (footnotes and record citations omitted). On September 24, 2008, our

Supreme Court affirmed Appellant’s judgment of sentence,2 and the Supreme

Court of the United States denied a petition for writ of certiorari on March 23,

2009.

On July 8, 2009, Appellant filed pro se a timely PCRA petition. The next

day, counsel from the Federal Community Defender Office (“FCDO counsel”)

filed an unopposed emergency motion for stay of execution on the ground that

Appellant had not been afforded collateral review of his convictions and

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2 Pursuant to 42 Pa.C.S.A. § 9711(h)(1), our Supreme Court had automatic

appellate review of Appellant’s case because a sentence of death was imposed.

42 Pa.C.S.A. § 9711(h)(1).

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sentence.3 Unopposed Emergency Motion for Stay of Execution, 7/9/09.

Although an order granting Appellant’s request for a stay of execution does

not appear as part of the PCRA court docket, based upon the filing of

Appellant’s pro se PCRA petition and the PCRA court’s subsequent grant of a

continuance on November 17, 2009, to afford FCDO counsel an opportunity to

review the record, it is apparent that a stay of execution was, in fact, granted.

On April 22, 2010, Appellant filed pro se a motion to dispense with

court-appointed counsel and proceed pro se in his PCRA petition. On

September 2, 2010, Appellant filed pro se a motion requesting a Grazier

hearing to address his request for self-representation.4 On October 29, 2010,

FCDO counsel filed a motion for ex parte and under seal proceedings,

regarding objections to Appellant’s request for self-representation and an

evidentiary proffer that Appellant suffered from significant mental

impairments which prevented him from adequately representing himself.

Motion for Ex Parte and Under Seal Proceedings, 10/29/10. In the motion,

FCDO counsel asserted, “the Commonwealth lacks standing to participate in

the resolution of [counsel’s objections.]” Id. at ¶2.

On September 8, 2011, the PCRA court denied Appellant’s pro se motion

requesting self-representation, and granted FCDO counsel’s request for a

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3Appellant’s execution was scheduled for August 18, 2009. FCDO counsel

entered his appearance on behalf of Appellant on October 13, 2009.

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

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psychiatric examination of Appellant. On October 11, 2011, the

Commonwealth appealed the September 8, 2011 PCRA court order denying

Appellant’s pro se motion requesting self-representation on the ground that

FCDO counsel does “not properly represent [Appellant] and [FCDO counsel’s]

appearance in state court is unlawful.” Commonwealth’s Statement of Errors

Complained of on Appeal, 10/11/11. In a May 10, 2012 per curiam order, our

Supreme Court remanded the case to the PCRA court with the directive that

the PCRA court “determine whether to formally appoint appropriate

post-conviction counsel and to consider whether [FCDO counsel] may or

should lawfully represent [Appellant] in this state capital PCRA proceeding.”

Per Curiam Order, 5/10/12 (641 CAP 2012). Upon remand, the PCRA court

removed FCDO counsel from Appellant’s case and scheduled a Grazier

hearing to determine whether Appellant wished to proceed pro se. PCRA Court

Order, 6/14/12; see also N.T., 6/14/12.

On August 22, 2014, the PCRA court appointed Samuel Stretton, Esquire

(“Attorney Stretton”) to represent Appellant. On November 7, 2014, Appellant

filed pro se a motion to remove Attorney Stretton and to proceed pro se. On

August 26, 2015, the PCRA court, without first conducting a Grazier hearing,

denied Appellant’s motion to proceed pro se and confirmed Attorney Stretton

as counsel of record for Appellant. PCRA Court Order, 8/26/15; see also N.T.,

8/26/15.

On October 3, 2016, Appellant filed pro se a motion for the removal of

Attorney Stretton as counsel of record “because of [a] serious conflict of

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interest.” Pro Se Motion Regarding Conflict of Interest, 10/3/16, at 4

(unpaginated). On October 19, 2016, the PCRA court granted Appellant’s pro

se motion and appointed Teri Himebaugh, Esquire (“Attorney Himebaugh”) to

represent Appellant. PCRA Court Order, 10/19/16; see also N.T., 10/19/16.

On December 15, 2016, the PCRA court sua sponte vacated its October

19, 2016 order and reinstated Attorney Stretton as counsel for Appellant on

the ground that the October 19, 2016 order was erroneously entered. PCRA

Court Order, 12/15/16; see also N.T., 12/15/16. The PCRA Court also

ordered that Appellant’s pro se motion regarding a conflict of interest be held

under advisement. On January 18, 2017, Appellant filed pro se a notice of

appeal challenging the December 15, 2016 order that reinstated Attorney

Stretton’s representation of Appellant.5

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5 Although Appellant, in his pro se notice of appeal, stated he was appealing

from a December 8, 2016 order reinstating Attorney Stretton as Appellant’s

counsel, a review of Appellant’s accompanying statement and the PCRA court

docket demonstrates that Appellant was appealing the December 15, 2016

order reinstating Attorney Stretton as counsel of record.

Although we can find no indication that the PCRA court forwarded a copy of

Appellant’s notice of appeal to our Supreme Court, we discern no error (and

thus, maintain jurisdiction in the instant appeal) because an order reinstating

Attorney Stretton as counsel of record was not a final, and immediately

appealable, order. See Commonwealth v. Wells, 719 A.2d 729, 730 (Pa.

1998) (finding that, an order denying a petition to withdraw as counsel does

not qualify as a collateral order, and therefore immediately appealable,

because such an order does not pertain to a matter unreviewable on appeal

from final judgment); see also Pa.R.A.P. 313(b) (defining a collateral order,

which is immediately appealable, as “an order separable from and collateral

to the main cause of action where the right involved is too important to be

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On December 31, 2018, Attorney Stretton filed an amended PCRA

petition, asserting several claims of ineffective assistance of trial counsel and

requesting a new trial, or in the alternative, that the PCRA court vacate the

death penalty sentence. Amended PCRA Petition, 12/31/18. On May 17,

2019, in a pro se letter directed to the PCRA court, Appellant reiterated his

“conflict of interest” claim against Attorney Stretton and renewed his request

to have Attorney Stretton removed as counsel. Pro Se Letter, 5/17/19. On

May 20, 2019, Appellant filed pro se a motion for the appointment of new

counsel due to an irreconcilable conflict of interest with Attorney Stretton.

On June 17, 2019, the Commonwealth filed a response to Appellant’s

amended PCRA petition. In its response, the Commonwealth, inter alia,

agreed that Appellant “received ineffective assistance of counsel” during the

penalty phase hearing, and requested that the PCRA court grant a new penalty

phase hearing. Commonwealth Response, 6/17/19, at 2. The Commonwealth

further stated that if a new penalty phase hearing were granted, the

Commonwealth remained “committed to maintaining a life sentence without

the possibility of parole[.]” Id. at 3. That same day, the PCRA court vacated

Appellant’s death sentence upon agreement of both the Commonwealth and

____________________________________________

denied review and the question presented is such that if review is postponed

until final judgment in the case, the claim will be irreparably lost”).

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Appellant’s counsel.6 PCRA Court Order to Vacate Death Penalty by

Agreement, 6/17/19; see also N.T., 6/17/19.

On June 17, 2019, the PCRA court also granted Appellant’s pro se motion

for new counsel thereby removing Attorney Stretton as Appellant’s counsel.

PCRA Court Docket Entry, 6/17/19; see also N.T., 6/17/19, at 8-9. On

September 17, 2019, the PCRA court appointed George Yacoubian, Esquire

(“Attorney Yacoubian”) to represent Appellant in his PCRA proceedings. On

October 23, 2019, Attorney Yacoubian filed a motion to withdraw as counsel.7

On November 6, 2019, Appellant filed pro se a motion requesting

self-representation in his PCRA proceeding. On December 17, 2019, the PCRA

court granted Attorney Yacoubian’s motion to withdraw as counsel for

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6 In its order, the PCRA stated, “after consideration of the motion to vacate

death penalty by the attorney for [Appellant,] it is ordered that the motion to

vacate death penalty is granted. Death penalty vacated by agreement of [the]

Commonwealth and [Appellant].” PCRA Court Order to Vacate Death Penalty

by Agreement, 6/17/19 (extraneous capitalization omitted).

7 In his motion to withdraw as Appellant’s counsel, Attorney Yacoubian

explained,

On [October 22, 2019], the undersigned [(Attorney Yacoubian)]

went to [the state correctional institution] to visit [Appellant] for

a second time since appointment. Within no more than 10

minutes, and only after being asked several questions about his

trial transcripts, [Appellant] was screaming at the undersigned.

When the undersigned asked [Appellant] to calm down, he

continued his verbal abuse, at which point the undersigned left,

and [Appellant] indicated he wanted to “go pro se.”

Motion to Withdraw as Counsel, 10/23/21.

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Appellant and scheduled a Grazier hearing on Appellant’s request for

self-representation. PCRA Court Order, 12/17/19; see also N.T., 12/17/19.

On February 10, 2020, the PCRA court, after conducting a Grazier

hearing, denied Appellant’s pro se motion for self-representation and

appointed James Lloyd, Esquire (“Attorney Lloyd”) to represent Appellant in

the PCRA proceedings. PCRA Court Order, 2/10/20; see also N.T., 2/10/20.

On March 16, 2020, the PCRA court sua sponte appointed Earl Kauffman,

Esquire (“Attorney Kauffman”) to represent Appellant. On October 26, 2020,

the PCRA court, at the conclusion of a status conference hearing, granted

Attorney Kauffman’s unopposed request for additional time in which to file a

second amended PCRA petition. N.T., 10/26/20. On December 23, 2020,

Appellant filed pro se a motion for the appointment of new counsel due to

irreconcilable differences with Attorney Kauffman.

On January 31, 2021, Attorney Kauffman filed a second amended PCRA

petition. The Commonwealth filed a motion to dismiss Appellant’s PCRA

petition on March 14, 2021. On July 14, 2021, the PCRA court notified

Appellant, pursuant to Pennsylvania Rule of Criminal Procedure 907, of its

intent to dismiss his petition without a hearing and advised Appellant he had

20 days to file a response. Rule 907 Notice, 7/14/21. On August 9, 2021,

Appellant filed pro se a response to the Rule 907 notice to dismiss. On

September 20, 2021, the PCRA court dismissed Appellant’s petition. In that

same order, the PCRA court granted Attorney Kauffmann’s motion to withdraw

as counsel and advised Appellant that he “may hire new counsel for appeal

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purposes.” PCRA Court Order, 9/20/21 (extraneous capitalization omitted).

On October 12, 2021, Appellant filed pro se a notice of appeal.

In a December 6, 2021 per curiam order, this Court directed the PCRA

court to determine Appellant’s eligibility for court-appointed appellate counsel

within 60 days and, if Appellant were eligible, to appoint counsel. In a March

24, 2022 per curiam order, this Court, having received no notice of the PCRA

court’s assessment and whether appellate counsel had been appointed,

directed the PCRA court again to make an assessment of Appellant’s in

pauperis status, and appoint counsel, if eligible, within 30 days. On April 26,

2022, the PCRA court re-appointed Attorney Lloyd.

On June 1, 2022, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pennsylvania Rule of

Appellate Procedure 1925(b). On June 21, 2022, Appellant filed his Rule

1925(b) statement. The PCRA court filed its Rule 1925(a) opinion on June 30,

2022.

Appellant raises the following issues for our review:

[1.] Did the PCRA court err []or abuse its discretion when it

denied [Appellant’s] petition under the PCRA without an

evidentiary hearing where trial counsel was ineffective for

failing to:

a. object to evidence regarding nine instances of prior

bad acts by [Appellant] which were inadmissible and

unduly prejudicial;

b. object to the prosecutor's improper closing argument;

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c. object to the [trial] court's answer to a jury question

which provided an inaccurate, incomplete[,] and

misleading statement of controlling law;

d. have the [trial] court give a timely and non-prejudicial

curative jury instruction regarding improper

testimony that [Appellant] "calmed down after he

went to prison" []or not objecting to a prejudicial

curative instruction; and,

e. challenge the cause of death[?]

[2.] Did the PCRA court err []or abuse its discretion when it

denied [Appellant's] petition under the PCRA without an

evidentiary hearing where PCRA counsel was ineffective for

failing to raise claims that trial counsel was ineffective for

failing to properly investigate and prepare for trial by not

presenting medical evidence that conflicted with the

Commonwealth's evidence and theory of guilt?

Appellant’s Brief at 4-5.

In addressing Appellant’s issues, we are mindful of our well-settled

standard and scope of review of an order denying a PCRA petition. Proper

appellate review of a PCRA court’s dismissal of a petition is limited to an

examination of “whether the PCRA court’s determination is supported by the

record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,

992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.”

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

omitted). “This Court grants great deference to the findings of the PCRA court,

and we will not disturb those findings merely because the record could support

a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140

(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s

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legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).

Appellant’s first issue, in toto, raises a claim alleging that trial counsel

provided ineffective assistance. Appellant’s Brief at 22-53. Specifically,

Appellant alleges that trial counsel was ineffective for failing to (1) object to

prior bad acts evidence, which Appellant asserts was inadmissible and unduly

prejudicial; (2) object to statements made by the Commonwealth in its closing

argument; (3) object to the trial court’s answer provided in response to a

question raised by the jury during its deliberation; (4) object when the trial

court failed to provide a curative jury instruction during its charge that the

trial court previously ruled it would provide; and (5) challenge the victim’s

cause of death. Id.

“It is well-established that counsel is presumed effective[.]”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland

v. Washington, 466 U.S. 668, 687-691 (1984). To plead and prove a claim

of ineffective assistance of counsel, “a petitioner must establish: (1) that the

underlying issue has arguable merit; (2) counsel's actions lacked an

objective[ly] reasonable basis; and (3) actual prejudice resulted from

counsel's act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701,

706 (Pa. Super. 2013) (en banc), appeal denied, 93 A.3d 463 (Pa. 2014). “A

claim of ineffectiveness will be denied if the petitioner's evidence fails to meet

any of these prongs.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.

2010). “In determining whether counsel's action was reasonable, we do not

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question whether there were other more logical courses of action which

counsel could have pursued[. R]ather, we must examine whether counsel's

decision[] had any reasonable basis.” Commonwealth v. Washington, 927

A.2d 586, 594 (Pa. 2007). A petitioner establishes prejudice when he or she

demonstrates “that there is a reasonable probability that, but for counsel's

[acts or omissions], the result of the proceeding would have been different.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009).

Here, Appellant asserts that trial counsel was ineffective for failing “to

object to evidence regarding nine instances of prior bad acts by [Appellant]

which were inadmissible and unduly prejudicial.” Appellant’s Brief at 25.

Specifically, Appellant argues that trial counsel failed to object to (1) Mother’s

“testimony that [Appellant] cursed at her, followed her around, and was

abusive[;]” (2) Mother’s “testimony that [Appellant] tried to steal her money

and burned her with an iron[;]” (3) Mother’s “testimony that [Appellant]

knocked her into a closet door[;]” (4) the neighbor’s “testimony that

[Appellant] was a loud and abusive person[;8]” (5) the acquaintance’s

“statement that [Appellant] never hugged or talked to the [victim;]” (6)

statements made by [Appellant’s] brother[] that [Appellant] threw a sandwich

____________________________________________

8 In response to the Commonwealth’s question whether the neighbor heard

“anything unusual coming from [Appellant’s] apartment at any time during

the month of November [1997,]” the neighbor stated, “It wasn’t quite unusual

at all to hear [Appellant]. He was a loud and abusive person. He cursed a

lot[,] and I could hear him hollering at the [victim] a lot.” N.T., 11/13/00, at

107.

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at [the brother] when they were younger[;]” (7) the brother’s “testimony that

[Appellant] had gotten so mad he could kill someone[;]” (8) “the

Commonwealth’s question regarding [Appellant’s] reaction to his name not

being in [the victim’s] obituary[;]” and (9) the second neighbor’s “statement

that [Appellant] hollered at his girlfriend.” Id. at 25-26. Appellant contends

that the nine instances of prior bad acts evidence demonstrating that he was

loud, angry, and abusive toward people other than the victim were used to

“smear [his] character and impermissibly tilt the scale[s] of justice toward a

finding of guilty,” and trial counsel was ineffective in failing to

contemporaneously object to each of the nine statements. Id. at 27, 29.

Pennsylvania Rule of Evidence 404 provides, in pertinent part, as

follows:

Rule 404. Character Evidence; Other Crimes, Wrongs, or

Acts

...

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act

is not admissible to prove a person's character in order to show

that on a particular occasion the person acted in accordance with

the character.

(2) Permitted Uses. This evidence may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.

In a criminal case this evidence is admissible only if the probative

value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1) and (2). Thus, as our Supreme Court in Powell, supra,

noted, “[w]hile it is true that evidence of prior crimes and bad acts is generally

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inadmissible if offered for the sole purpose of demonstrating the defendant’s

bad character or criminal propensity, the same evidence may be admissible

where relevant for another purpose.” Powell, 956 A.2d at 419; see also

Commonwealth v. Busanet, 54 A.3d 35, 60 (Pa. 2012). In addition to the

“other purposes” enumerated in Rule 404(b)(2) that allow for the possible

admission of prior bad acts evidence, our Supreme Court carved out another

special circumstance, known as the res gestae exception, where prior bad acts

evidence is admissible if the evidence is “part of the history of [the] case and

formed part of [the] natural development of facts[.]” Commonwealth v.

Solano, 129 A.3d 1156, 1178 (Pa. 2015); see also Commonwealth v.

Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (en banc); Powell, 956 A.2d at

419. Additionally, the prior bad acts evidence must be relevant, and its

probative value must be outweighed by the potential for “unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” Pa.R.E. 403. Finally, “the admissibility of

evidence is within the discretion of the trial court, and such rulings will not

form the basis for appellate relief absent an abuse of discretion.”

Commonwealth v. Saez, 225 A.3d 169, 177 (Pa. Super. 2019) (citation and

original quotation marks omitted), appeal denied, 234 A.3d 407 (Pa. 2020).

In the case sub judice, our review of the PCRA court’s denial of

Appellant’s ineffectiveness claim on this ground turns on the merits of the

underlying claim that the trial court erred or abused its discretion in admitting

the nine statements, as set forth supra. Stated another way, absent an abuse

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of discretion or error of law by the trial court in admitting these nine

statements at trial, trial counsel cannot be ineffective for failing to object to

the statements.

We begin by examining our Supreme Court’s disposition of a related

claim on direct appeal. There, in addition to the nine statements set forth

supra, Appellant claimed that he was prejudiced at trial by the admission of

three additional statements. Those three statements were (1) Mother’s

“testimony that [Appellant] put his hands on her[;]” (2) the acquaintance’s

“statements that [Appellant] had a cold personality[;]” and (3) the

acquaintance’s statement that Appellant “once threw water in [the victim’s

face].” Powell, 956 A.2d at 418. Our Supreme Court, in Powell, supra,

noted that these three statements, to which trial counsel lodged a

contemporaneous objection, were properly admitted because the statements

helped establish the family environment and the relationships Appellant had

with others, helped “establish the chain of events and pattern of abuse that

eventually caused” the victim’s death, and showed “both [Appellant’s] intent

and malice and the nature of the relationship with [the victim].” Id. at

419-420. The Powell Court found that trial counsel did not object to the

remaining nine statements, which are the subject of the instant appeal, and,

therefore, any direct appeal claim regarding the admissibility of these nine

statements was waived. Id. at 419.

In the case sub judice, we concur with the PCRA court that the nine

statements, which were not addressed on the merits by our Supreme Court in

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Powell, supra, were properly admitted because they were “part of a chain or

sequence of events that were part of the natural development of the case”

and “illustrate[d] the pattern of abuse that eventually caused the child victim’s

[death].” PCRA Court Opinion, 6/30/22, at 9-10 (quotation marks and

citations omitted). Similar to Mother’s statement that Appellant “put his hands

on her,” which our Supreme Court found was properly admitted, the first three

statements involved in this collateral appeal, namely Mother’s testimony that

Appellant cursed at her, tried to steal from her and burned her with an iron,

and that he knocked her into a closet door, were not offered “to show

[Appellant’s] propensity to crime, but in the context of establishing the family

environment and relationships among [Appellant]” (see Powell, 956 A.2d at

419) and were provided in response to trial counsel’s questions surrounding

the protection from abuse petitions that Mother and Appellant filed against

each other. In finding that the trial court did not err in admitting Mother’s

statement that Appellant “put his hands on her,” our Supreme Court

explained,

Considering the isolation in which [Appellant] kept [the victim],

this testimony was useful for the jury in understanding how

[Appellant] kept away [Mother], the other adult most likely to

have noticed the abuse and protected [the victim]. Appellant's

prior abuse of [Mother] (in addition to her testimony regarding

her drug abuse and time in [rehabilitation]) provides context for

her later testimony that she took little action when [Appellant]

refused to allow her access to her son, or, on those rare occasions

when she did see [the victim], to speak with him alone.

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Powell, 956 A.2d at 420. For the same reasons expressed by our Supreme

Court in Powell, supra, we find the three additional statements by Mother

were admitted without error.

Similarly, the neighbor’s statement that Appellant was “a loud and

abusive person” was made in response to a question by the Commonwealth

soliciting whether the neighbor heard “anything unusual” coming from

Appellant’s apartment prior to November 1997. N.T., 11/13/00, at 107. This

response provides context for the neighbor’s later statements that he was able

to hear Appellant’s abusive behavior towards the victim through the walls of

the apartments, including, inter alia, telling the victim to “shut the fuck up,”

smacking the victim, and knocking furniture over. Id. The neighbor’s

statement was part of the immediate story or natural progression of events

leading to the victim’s death and, therefore, was not admitted in error.

With regard to the acquaintance’s statement that she never saw

Appellant touch the victim or hug him, this statement arose in the context of

a discussion surrounding the acquaintance’s statements to police regarding

the incident. N.T., 11/13/00, at 164-167. On cross-examination, the

acquaintance was asked about a statement she made to the police that she

“thought [Appellant and the victim] had a good relationship.” Id. at 164-165.

On re-direct, the acquaintance was asked if she still thought Appellant and the

victim had a good relationship, to which the acquaintance responded

negatively. Id. at 167. When asked to explain why her opinion of the

relationship changed, the acquaintance responded, “I’ve never seen

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[Appellant] touch [the victim]; I’ve never seen him hug him or just talk to

him, you know, like you would your child. I’ve never seen that. I thought

that was odd.” Id. at 167. When examined within the context of the

acquaintance’s overall testimony, her statement completes the story of the

relationship Appellant had with the victim. Moreover, the testimony was

offered to clarify a statement the acquaintance previously made to police

regarding Appellant’s relationship with the victim – Appellant and the victim

had a good relationship - that was first raised by trial counsel. As such, the

challenged statement was not admitted in error.

Regarding Appellant’s brother’s statements that he witnessed Appellant

throw a sandwich and that Appellant got so mad that he could kill, we do not

find that these statements were admitted in error. First, Appellant

mischaracterizes the brother’s statement that he witnessed Appellant throw a

sandwich as occurring when they were younger. Appellant’s Brief at 25

(stating, “statements made by [the brother] that [Appellant] threw a sandwich

at [the brother] when they were younger” (emphasis added)). The

testimony concerning the sandwich episode was as follows:

[Commonwealth:] Do you recall the question on page two at

the bottom [(referring to a statement the

brother gave to police)] . . . Does

[Appellant] have a temper? And giving

the answer: Yes, a real bad temper. He’s

had it since he was born.

[Brother:] Yes.

[Commonwealth:] Was that true?

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[Brother:] Well, it is the same as I say he had it as

we was young, coming up.

[Commonwealth:] In fact, didn’t [Appellant] even

demonstrate it [(that he had a temper)]

the day that you gave this statement [to

police] in the car on your way to

homicide?

[Brother:] Yeah, he got mad at my oldest brother.

[He] and my oldest brother had a little

argument and he jumped out of the car.

[Commonwealth:] And threw a sandwich?

[Brother:] Yes.

[Commonwealth:] So he hadn’t lost his temper. Is that

correct?

...

[Brother:] He didn’t lose it but it calmed down a lot

from when we was young, coming up.

N.T., 11/14/00, at 90-91. The brother’s statement regarding the sandwich

concerned events that transpired after the discovery of the victim’s death and

not during Appellant’s childhood. The brother’s statement was made in

response to the Commonwealth’s question regarding a statement the brother

previously made to police – that Appellant had a bad temper, and the brother

offered the sandwich episode as an example of what he meant when he

described Appellant as having a bad temper. This statement was offered to

rebut Appellant’s claims that the victim’s death was the result of an accident

or the victim’s clumsiness, two explanations Appellant provided to police and

witnesses when he characterized the events leading to the victim’s death. This

statement goes to establishing that the victim’s injuries, which ultimately led

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to his death, were not the result of an accident or the victim’s own clumsiness.

See Pa.R.E. 404(b)(2) (stating, evidence of other acts “may be admissible for

another purpose, such as proving . . . lack of accident”). Therefore, the

brother’s testimony that Appellant threw a sandwich, as an example of

Appellant’s bad temper, was not admitted in error.9

Regarding the brother’s second statement – Appellant got so mad he

could kill, the Commonwealth asked the brother, “Did you tell the [police]

detective: [Appellant’s] temper is so bad that I’ve seen him get so bad that

he could kill with his temper?” The brother responded, “Yes, when [he and I]

used to fight a lot.” Id. at 91. As discussed supra, the brother’s response

rebuts Appellant’s claim that the victim’s death was the result of an accident

or clumsiness. Therefore, this statement was not admitted in error.

Appellant next complains that trial counsel should have objected to the

Commonwealth’s question regarding Appellant’s reactions to his name being

omitted from the victim’s obituary. Appellant’s Brief at 26. A review of the

pertinent testimony cited by Appellant is as follows:

[Commonwealth:] Did you[, Brother,] know that [Appellant]

wasn’t [the victim’s] father?

____________________________________________

9 Moreover, Appellant’s defense throughout trial, as discussed in greater detail

infra, was that the killing was done with malice but not a specific intent to kill.

As such, Appellant placed his character, temper, and aptitude for violence at

issue and the Commonwealth was permitted to use evidence of other acts to

show Appellant’s capacity for, or lack of mistake or accident in, the formation

and consciousness of an intent to kill.

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...

[Brother:] He was proved by the court that he was

the father.

...

[Commonwealth:] [Appellant’s] name isn’t mentioned in [the

victim’s] obituary, right?

[Trial Counsel:] Objection.

[Trial Court:] Sustained.

[Brother:] Can I –

[Commonwealth:] Nothing further.

...

[Trial Counsel:] Would you like to explain something at

this time, sir?

[Brother:] The reason why his name wasn’t in the

obituary is because [Mother] was all mad

and everything. The whole family was

mad at us.

[Trial Counsel:] So [Appellant] had nothing to do with the

obituary?

[Brother:] No.

[Trial Counsel:] That’s the reason the name wasn’t there?

[Brother:] Yeah.

N.T., 11/14/00, at 102-103. A review of the pertinent testimony

demonstrates that the Commonwealth’s question was not “a question

regarding [Appellant’s] reaction” to the omission of his name from the

obituary, as asserted by Appellant. See id. at 103; see also Appellant’s Brief

at 26. Rather, the Commonwealth attempted to demonstrate, through

circumstantial evidence, that Appellant’s name was omitted from the obituary

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because he was not the victim’s biological father. Trial counsel objected to

the question, and the trial court sustained the objection. Trial counsel then

asked the brother on recross-examination to explain why Appellant’s name

was omitted from the obituary. N.T., 11/14/00, at 103. The brother explained

that Appellant’s name was omitted because he did not participate in preparing

the obituary, and the obituary was prepared by Mother who was

understandably angry with Appellant after he killed her son. Id. There is

nothing in the brother’s testimony that constitutes a prior bad act. Therefore,

Appellant’s claim that trial counsel was ineffective for failing to object to the

brother’s testimony on the ground that it constituted prior bad act evidence is

without merit.

Finally, Appellant contends that trial counsel was ineffective for failing

to object to the second neighbor’s statement that he observed Appellant

“hollering” at his girlfriend. Appellant’s Brief at 26. This statement was made

in the context of the second neighbor’s testimony regarding his interaction

with Appellant on the day following the victim’s death when Appellant

confessed to the second neighbor that he thought he killed the victim. N.T.,

11/15/00, at 17-21. The pertinent testimony was as follows:

[Commonwealth:] Did you ever see whether or not

[Appellant] had an unusual temper?

[Second Neighbor:] Yes.

[Commonwealth:] What have you observed about him?

[Second Neighbor:] Hollering and screaming, cursing.

[Commonwealth:] At whom?

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[Second Neighbor:] His girlfriend and at the [victim].

Id. at 20-21. The second neighbor’s statement establishes the family

environment and the relationships among Appellant, the acquaintance, and

the victim that form the history of the case and were part of its natural

development of events which ultimately led to the death of the victim.

Moreover, this statement tends to refute Appellant’s claims that the victim’s

death was the result of an accident or the victim’s clumsiness. Therefore,

these statements were properly admitted, and Appellant’s ineffectiveness

claim based on this statement is without merit.

Next, Appellant asserts that trial counsel was ineffective for failing to

object to a portion of the Commonwealth’s closing argument. Appellant’s Brief

at 35-39. Specifically, Appellant contends that “the Commonwealth twice

referenced [Appellant’s] alleged abuse of [Mother.]” Id. at 35. Appellant

argues that “[t]he closing argument, in addition to painting [Appellant] as

generally violent and abusive, highlighted evidence of domestic violence likely

to evoke a passionate response from the jurors.” Id. at 26.

Appellant’s ineffectiveness claim involves an underlying claim of

prosecutorial misconduct for which our standard and scope of review are

well-established.

In reviewing an assertion of prosecutorial misconduct, our inquiry

centers on whether the defendant was deprived of a fair trial, not

deprived of a perfect trial. It is well-settled that a prosecutor must

be free to present his or her arguments with logical force and

vigor. Comments grounded upon the evidence or reasonable

inferences therefrom are not objectionable, nor are comments

that constitute “oratorical flair.” Furthermore, the prosecution

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must be permitted to respond to defense counsel's arguments.

Consequently, [appellate courts have] permitted vigorous

prosecutorial advocacy provided that there is a reasonable basis

in the record for the prosecutor's comments. A prosecutor's

remarks do not constitute reversible error unless their

unavoidable effect would prejudice the jurors, forming in their

minds fixed bias and hostility toward the defendant so that they

could not weigh the evidence objectively and render a true verdict.

Finally, [appellate courts] review the allegedly improper remarks

in the context of the closing argument as a whole.

Commonwealth v. Sneed, 45 A.3d 1096, 1109-1110 (Pa. 2012) (citations,

some quotation marks, and original brackets omitted).

A review of the context of the closing arguments presented by both the

Commonwealth and trial counsel demonstrates a common agreement that the

case was not about whether Appellant’s actions resulted in the death of his

son but, rather, whether Appellant had the requisite intent to kill his son

required for a first-degree murder conviction. See N.T., 11/16/00, at 42

(stating, “[t]he case is about the degree of guilt, whether or not there’s

intent”); see also id. at 44 (stating, “I [(the prosecutor)] agree with [trial

counsel] on [the issue.] The whole issue for you ladies and gentlemen is: Is

[Appellant] guilty of first[-]degree [murder] or guilty of murder in the

third[-]degree? Because[] neither one of us [(the Commonwealth nor trial

counsel)] thinks that there’s any possibility that [Appellant] should not be

found guilty.”); Id. at 58 (explaining that, “I [(Appellant)] accept my

responsibility and I told [trial counsel that] I wanted him to some way address

the jury and let them know . . . I fully accept my responsibility”). During its

closing argument, the Commonwealth argued, in pertinent part, as follows:

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[Commonwealth:] [Mother] told you [Appellant] is a nice guy

except when he’s drinking, smoking

marijuana, using crack [cocaine]. What

did he do to her? He was abusive to her.

He was abusive to the child when the child

didn’t do –

[Trial Counsel:] Objection, your Honor – withdraw.

[Trial Court:] Okay.

[Commonwealth:] - when the child didn’t do exactly what he

wanted and the child touched the [video

cassette recorder,] touched the

television – and, remember, [the child]

was only four years old at that time,

maybe five – he would smack him. This

was a baby. And he would still smack

him.

Id. at 44-45.10 As explained supra, and as our Supreme Court held in Powell,

supra, Mother’s testimony regarding the abusive nature of Appellant’s actions

towards her – that he put his hands on her when he was drunk or high; that

____________________________________________

10 Although Appellant asserts, in his appellate brief, that “the Commonwealth

twice referenced [Appellant’s] alleged abuse of [Mother,]” Appellant only cites

to one portion of the transcript, which is set forth supra. See Appellant’s Brief

at 35, citing N.T., 11/16/00, at 44 (line 25) and 45 (lines 2-5). A review of

the Commonwealth’s closing argument demonstrates one additional reference

to Appellant’s abuse of Mother, as follows:

This poor little boy did not have a chance. I submit to you that

between having [Mother] who was using alcohol and drugs but

who was trying to get help by going into a [rehabilitation facility,]

and [Father], who was using the same stuff but wasn’t in a

[rehabilitation facility] and who was abusing both of them, that

child didn’t have a chance.

N.T., 11/16/00, at 53. For purpose of our disposition, we consider this second

portion of the Commonwealth’s closing argument in conjunction with the

portion cited by Appellant.

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he cursed at her, followed her, and was abusive; that he tried to steal money

from her and burned her with an iron; and that he knocked her into a closet

door – were properly admitted testimonial statements. As such, the

Commonwealth’s references in its closing argument to Appellant’s abusive

behavior towards Mother were grounded in the evidence and are not

objectionable. Therefore, we concur with the PCRA court, and the record

supports, that the Commonwealth’s references to Appellant’s abuse of Mother

“would in no way amount to prosecutorial misconduct.” PCRA Court Opinion,

6/30/22, at 11; see also Sneed, 45 A.3d at 1110 (stating, “[c]omments

grounded upon the evidence or reasonable inferences therefrom are not

objectionable”).

Next, Appellant claims that trial counsel was ineffective for failing to

object to the trial court’s response, during deliberations, to a jury question

regarding mens rea. Appellant’s Brief at 39-44. Appellant contends that the

trial court answered “yes” to the jury’s question, “[I]n committing a crime[,]

does total disregard for the outcome of the victim constitute an intent to kill?”

Id. at 39.

Because Appellant’s ineffectiveness claim is predicated upon trial

counsel’s failure to object to a jury instruction, our analysis is guided by the

well-settled principles pertaining to jury instructions.

A trial court has broad discretion in formulating and delivering

instructions to a jury. When reviewing the exercise of that

discretion, an appellate court must evaluate the trial court's

instruction as a whole to determine if it was fair or prejudicial. A

trial court may use such language as it chooses, so long as the

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law is clearly, adequately, and accurately presented to the jury for

its consideration. We will not rigidly inspect a jury charge, finding

reversible error for every technical inaccuracy, but rather evaluate

whether the charge sufficiently and accurately apprises a lay jury

of the law it must consider in rendering its decision. Error cannot

be predicated on isolated excerpts of the charge, but it is the

general effect of the charge that controls.

Commonwealth v. Drummond, 285 A.3d 625, 634-635 (Pa. 2022)

(footnotes and quotation marks omitted), cert. denied, ___ S.Ct. ___, 2023

WL 2959478 (2023) (slip copy). It is well-established that a jury is presumed

to follow a trial court’s instructions. Commonwealth v. Naranjo, 53 A.3d

66, 71 (Pa. Super. 2012).

Here, the trial court’s answer regarding the jury’s question was as

follows:

[TRIAL COURT:] The question reads: In committing a

crime does the total disregard for the

outcome of the victim constitute the

intent to kill?

Correct?

[JURY:] Yes.

[TRIAL COURT:] At the risk of repeating myself, as I

said - and I don't mind. It's what I have

to do.

As I said earlier today, the word intent

occupies a prominent space in the charge

of the court when I talk about malice. In

fact, when I defined, as you will recall,

both first and third[-]degree murder, the

only time the word intent is used in the

definition of the essential elements for

each of those offenses is in reference to

the third element under first[-]degree

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murder, which requires specific intent to

kill and with malice.

As I said, in talking about malice we're

dealing with three states of mind: An

intent to kill, an intent to inflict serious

bodily harm or, thirdly, a conscious

disregard of an unjustified and extremely

high risk that his actions might cause

death or serious bodily harm.

I also said that specific intent to kill, the

first form of malicious state of mind under

the law, is the type of finding that would

satisfy under first[-]degree murder both

malice and intent to kill. In other words,

the finding of a specific intent to kill would

satisfy the requirement of both the

specific intent required and the malice

required.

The other two examples of the state of

mind the law considers bad enough to

elevate a killing to murder is an intent to

inflict serious bodily harm or the third,

which I just defined starting with the

words: A conscious disregard of an

unjustified and extremely high risk.

You've asked a subjective question.

You've asked basically whether or not

under certain circumstances could a

conscious disregard of an extremely high

risk that what you're doing might cause

death or serious bodily harm rise high

enough in your analysis to be equivalent

to a specific intent to kill.

That's a subjective question, not

necessarily a factual question, although

facts do have a bearing upon its

resolution. The best I can tell you is that

you will have to evaluate all the evidence

in the case. You will have to understand

that it is not by accident that when the law

defines malice it specifically enumerates

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an intent to kill, an intent to inflict serious

bodily harm[,] and a conscious disregard

as three separate and distinct categories.

They can all result in a finding of malice[,]

but they do not all result in a

first[-]degree murder verdict.

Because when you're talking about, in

terms of your question, the intent to kill,

as I said in my charge earlier, considering

the seriousness of first degree, what

first[-]degree murder entails, the law

requires in the intent aspect of that that

at the time the killing act took place the

law demands that it be shown beyond a

reasonable doubt that at the time the

killing act took place the killer intended to

cause the end of the life of the person he

struck.

I'm sure in your life experience in the

application of common sense you can

conceive of situations where you would

conclude under the conscious disregard

theory some circumstances where you

might find that the person who was

disregarding the risk desired the end of

the life of the individual who was put at

risk. And I'm sure you can conceive of

situations where although someone was

disregarding a high risk that

[their]·actions might result in death you

can condemn that but would not

necessarily find that the person desired

the end of the life of the person. So I say

it's subjective.

I think it's significant that the law broke

the malice down into three separate

categories. I am not going to tell you

here and now that every factual

circumstance in life that results in

death under the conscious disregard

is equivalent to a specific intent to kill

but I'm not going to say that that's

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impossible either. That's an evaluative

decision that you would have to make, as

I said, because it's subjective looking at

all the facts and circumstances in the

case.

But I also think it's significant and

relevant to that determination to

remember that the law; not by accident,

specifically set out as the first [] form of

state of mind language with an intent to

kill. And I think, contemplating the

seriousness of the charge of first[-]degree

murder, as I said a moment ago, they

generally anticipate a finding where the

fact-finder - that is you in this case - can

conclude beyond a reasonable doubt at

the time the blow was struck or the blows

were struck that the result desired was

the end of someone's life. That's what

makes it first[-]degree murder as

opposed to other types of homicide.

I don't know if that answers your question

but I can't - part of what you have to do

is subjective in analyzing or making

inferences or conclusions from the

evidence.

I'm not saying it is an impermissible

exercise in logic to conclude that a

disregard of the outcome is equivalent to

an intent to kill. That's a possibility.

That's one of the alternatives. Whether it

rises that high or not, as I said, I think it's

something you'll have to evaluate based

upon how you interpret and evaluate and

infer from the evidence.

I can't add much more than that. All I'm

trying to point out is that it's instructive

that the law did break malice down into

three separate categories for the reasons

I've stated. I don't know if that helps you.

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N.T., 11/17/00, at 13-18 (emphasis added). The trial court later clarified its

response to the jury’s question as follows:

[TRIAL COURT:] Before I let you go - I will acknowledge on

the record this is sua sponte, without

correspond[e]nce with the jury or either

counsel.

I have done some reflection about things

that I've talked to you earlier about.

Although I believe that - in answer to your

last question I mean. I believe I gave you

a correct statement of the law but in an

abundance of caution I'm a little bit

concerned that there's a possibility,

however slight, that I might have caused

some confusion or misled you in any way.

So I want to make sure that we're, to

quote Richard Nixon, perfectly clear.

There's a phrase which is called murder

generally. When we as attorneys refer to

murder generally[,] we refer to a situation

where someone has been charged with

murder and the fact-finder, judge or jury,

has basically two decisions relevant to

that charge. They have to decide whether

in fact a murder was committed and, if so,

the second decision they make is

whether - what degree of murder is

involved.

When you hear the phrase murder

generally that's talking about murder

without any specification or conclusion as

of yet as to what degree may or may not

be involved.

In certain respects what has been put on

the table for you is a determination of a

murder generally case. Of course there's

always the considerations - and I don't

mean to pass over them lightly - even

though there's been argument by counsel

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about who caused - statements by

counsel in their arguments about there's

no question as to who caused the injuries.

You still have to make a decision.

All that comes down to is that in a murder

trial, for a killing to be murder the

Commonwealth must establish, as I said

earlier, someone has been unlawfully

killed; that the person accused, the

defendant, did the killing; and that the

killing was done with malice. Malice is the

general intent. Finding that is a

prerequisite to a finding of murder. If

there's a killing and there's no malice it's

not murder. It's something else.

So once you make that initial decision you

have to determine whether or not, was

someone killed? The defendant - did the

defendant, the person accused in this

case, do the killing and was the killing with

malice? That's where you bring to bear

my earlier definition of malice. When you

make your decision as to whether or not

this killing was with malice, if you decide

it was, that decision could be based on a

finding by you beyond a reasonable doubt

that the malice was grounded in an intent

to kill on the part of the accused or it was

grounded in an intent to cause physical

harm or it was grounded in what I have

been referring to, a finding that the

accused acted with a conscious disregard

of extremely high risk that his actions

might cause death.

To establish murder in the first degree[,]

the Commonwealth must also prove the

defendant specifically intended to kill.

Thus, in addition to the three

requirements that you bring to bear on a

finding of malice, the Commonwealth

must also prove the specific intent, which

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involves the concepts of premeditation

and deliberation.

The job is made a little bit simpler because

if you [] conclude beyond a reasonable

doubt that there is malice and the malice

is based upon an intent to kill, then you're

in effect also already completing the

second step, which for first[-]degree

murder is a finding of specific intent to kill.

If, however, your finding of malice is

based upon a finding beyond a reasonable

doubt that the malice was based upon an

intent to cause physical harm or was

based upon the conscious disregard

concept that I defined, then you have to

go into a second step to determine

whether or not there was proven beyond

a reasonable doubt a specific intent to kill.

What you bring to bear on that issue is all

the facts and circumstances and evidence

in the case that would bear upon that

specific decision.

The point I'm making is for a murder

verdict there's basically two steps. You

have to first determine if there's malice

involved. If there's no malice involved[,]

it is not murder[,] and you don't have to

consider anything else.

If there is malice involved[,] then in order

for first degree to be found you also have

to find a specific intent to kill. A person

has a specific intent to kill if he has a fully

formed intent to kill and is conscious of his

own intention.

A killing is with specific intent to kill if it is

willful, deliberate[,] and premeditated.

And, as I also indicated, premeditation

does not require planning or previous

thought of any particular length of time.

It can occur quickly.

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I was just concerned[,] and I wanted to

make sure I didn't run the risk of

confusing or misleading you. Or maybe

the only one that was confused was

myself.

Id. at 19-24.

While Appellant characterizes the trial court’s response to the jury

question as “a simple ‘yes’” answer, we find the trial court’s response, and

subsequent clarifying response, to be far from a simple “yes.” See Appellant’s

Brief at 41, 42 (describing the trial court’s response as a “short shrift answer

of ‘yes’”). Rather, the trial court informed the jury that its question was a

“subjective question” that must be answered by the jury after consideration

of the case-specific facts. N.T., 11/16/00, at 15. As the trial court aptly noted,

in some instances a total disregard for the outcome of the victim may give

rise to a finding of an intent to kill, and would, thus, constitute first-degree

murder, when the person who totally disregarded the risk to the victim,

desired to end the victim’s life. Id. at 16. Alternatively, the trial court

explained that a total disregard for the outcome of the victim may not rise to

the level of “intent to kill,” and would, thus, constitute, third-degree murder,

when the person, who totally disregarded the risk to the victim, did not desire

to end the victim’s life. Id. As such, the trial court sufficiently and accurately

appraised the jury of the law, and we discern no error in the trial court’s

instructions. Therefore, Appellant’s ineffectiveness claim on this ground is

without merit.

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Next, Appellant raises a claim that trial counsel was ineffective for failing

to request that an agreed upon curative instruction be provided to the jury

before the start of deliberation and for failing to object to the trial court

providing the curative instruction sua sponte during the deliberation process.

Appellant’s Brief at 44-48.

To place Appellant’s ineffectiveness claim in context, during Appellant’s

trial and in response to a question by the Commonwealth whether Appellant

had a bad temper his entire life, Appellant’s brother responded, “No, it calmed

down when he went to prison.” N.T., 11/14/00, at 89. Trial counsel objected,

and the trial court sustained the objection and indicated that trial counsel

preserved the issue. Id. The following day, the trial court, sua sponte raised

trial counsel’s objection to the brother’s testimony. N.T., 11/15/00, at 11.

The trial court denied Appellant’s request for a mistrial, but granted the

request that a curative instruction be provided, stating that the curative

instruction would be provided as part of the final charge. Id. at 12. The trial

court, however, failed to provide the curative instruction as part of its

instructions to the jury. N.T., 11/16/00, at 59-100. At the conclusion of its

charge, the trial court asked counsel “if they [had] any additions or

subtractions,” to which Appellant’s trial counsel did not raise the trial court’s

failure to provide the curative instruction regarding the brother’s testimony.

Id. at 100. During jury deliberations and in responding to questions presented

by the jury, the trial court, sua sponte, provided the curative instruction as

follows:

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Before I [answer your question,] I also should remark – you may

or may not recall but in an abundance of caution I feel I must

mention this – that during the testimony of one of the witnesses,

[Appellant’s brother] I believe, when he was being asked

questions generally falling within the category of, quote unquote,

the temper of [Appellant], he mentioned basically – even though

he wasn’t asked he volunteered that [Appellant’s] temper

improved when he came out of prison. I struck that comment

from the record.

I would ask you not to read anything into [the brother’s response]

one way or another due to the fact that [Appellant] may have

been in prison at one time in his life. You must not regard that as

any significant evidence because I struck it from the record. It

should not enter into your deliberations in any way and it should

not affect your evaluation of the issues in the case. Because it is

not, as I said, evidence. You should not consider [Appellant]

might be a person of either bad character or criminal tendencies

from which you may infer something negative or guilt from him.

Just totally ignore it as if it never happened.

...

I think the issue is clear in your minds that whatever that incident

may have been in the past, it was totally irrelevant and immaterial

and has nothing to do with anything involved in this case.

N.T., 11/17/00, at 2-3.

Here, Appellant asserts that trial counsel’s failure to request the curative

instruction before the start of jury deliberations and to object to the curative

instruction being provided during deliberations prejudiced him because “[b]y

giving this instruction during jury deliberations, [] the trial court actually

emphasized to the jury that Appellant had previously been incarcerated for an

unrelated incident.” Appellant’s Brief at 46. A finding that trial counsel’s

alleged ineffectiveness prejudiced Appellant would require us to ignore the

well-established principle that a jury is presumed to follow a trial court’s

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instructions. See Naranjo, 53 A.3d at 71. We decline Appellant’s invitation.

The trial court, in providing the curative instruction, informed the jury that the

comment had been struck from the record and that consideration of the

statement should not enter the jury’s deliberations. N.T., 11/17/00, at 2-3.

The trial court clearly stated that the statement was “totally irrelevant and

immaterial and has nothing to do with anything involved in this case.” Id. at

3. Therefore, we presume that the jury followed the trial court’s instruction

and did not consider the content of the brother’s statement in reaching its

verdict. See Naranjo, 53 A.3d at 71. As such, the record supports the PCRA

court’s denial of Appellant’s petition on this ground.

Next, Appellant contends that trial counsel was ineffective for failing to

challenge the victim’s cause of death, asserting that proof the death was

caused by “head trauma,” as stated in the medical examiner’s notice of death,

“would have corroborated [Appellant’s] claims of innocence.”11 Appellant’s

Brief at 48-52. In support of his claim, Appellant asserts,

A touchstone consideration for the jury in this case is whether the

evidence indicates an intentional act specifically intended to cause

death, or a course of gross recklessness which indicated disregard

for whether death would occur. Indeed, this is the difference

between first- and third-degree murder.

____________________________________________

11 As discussed supra, Appellant did not present a defense of innocence at trial

but, rather, asserted that his role in the victim’s death amounted only to

third-degree murder. See N.T., 11/16/00 (stating, “I [(Appellant)] fully

accept my responsibility. I’m not ducking and hiding behind no attorney and

not accepting I was responsible”).

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...

The Commonwealth was able to proffer a cause of death which

was at odds with the medical records.[12] More importantly, the

proffered cause of death undercut the defense while the “head

trauma” cause of death in the medical examiner’s notice [of

death] would have corroborated [Appellant’s] claims of innocence.

Had counsel aggressively challenged the cause of death, this

course of action would have directly supported the defense and

simultaneously undercut a keystone of the Commonwealth’s case.

Id. at 50.

A review of the “medical examiner’s notice and pronouncement of

death” (“notice of death”) demonstrates that the victim’s cause of death was

listed as “head trauma.” This cause of death was based upon the emergency

room physician’s assessment of the victim, upon his arrival at the hospital, as

well as information provided by the EMS worker who transported the victim to

the emergency room, and was not based upon an autopsy of the victim’s

body.13 The emergency room physician noted on the notice of death that the

victim arrived at the hospital with “bruises on [his] chest, [an] old scar on

____________________________________________

12 Appellant contends that the medical examiner, who performed an autopsy

of the victim and testified on behalf of the Commonwealth, stated that “the

actual cause of death was asphyxiation due to water buildup in decedent’s

lungs caused by a seizure, to which he was predisposed because of ‘prior

injuries.’” Appellant’s Brief at 49, citing Powell, 956 A.2d at 415-416.

13 As part of the notice of death, the treating emergency room physician noted,

based upon, inter alia, information provided by the EMS worker, that it was

reported the victim fell at 8:00 p.m., the victim could not be aroused at

9:30 p.m., Appellant initiated CPR, 911 emergency services received a call at

10:45 p.m. stating that the victim was unconscious, upon arrival of EMS the

victim had no vitals and was unconscious, and the victim was transported to

the emergency room where he was pronounced dead at 11:09 p.m.

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[his] head, [a left] eyelid laceration, [and] pupils [that were] fixed and

dilated.”

The medical examiner who oversaw the autopsy of the victim and was

admitted as an expert in the field of forensic pathology for the

Commonwealth,14 testified, at trial, to a reasonable degree of medical

certainty that the victim’s cause of death was due to “multiple blunt force

injuries” and the manner of death was homicide. N.T., 11/14/00, at 10, 23.

The medical examiner ruled the death a homicide because of the location of

the injuries on the victim’s body and the multiplicity of injuries, including

“fresh” injures, all over the victim’s body. Id. at 55.

The autopsy revealed “more than ten [fresh] blows” or blunt force

injuries to the victim’s body, including injury to the victim’s left upper eyelid,

the left jaw-cheek region, the back of the head and neck, over the forehead,

in the upper chest region, in the armpit and forearm regions, and to the

victim’s mouth, that were inflicted no more than 48 hours prior the victim’s

death. Id. at 23. In particular, the medical examiner testified that the victim

suffered, inter alia, a “fresh” blunt force injury to the top of his head. Id. at

20. The “fresh” injury to the victim’s skull and brain, coupled with prior,

similar injuries to the victim’s skull and brain, which were only detected as

part of the autopsy, in the medical examiner’s opinion, triggered the victim to

____________________________________________

14 The medical examiner who testified at trial was not the same physician who

examined the victim in the emergency room on November 20, 1997, and

completed the notice of death form.

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suffer a seizure on the day of death, which, in turn, caused the victim’s lungs

to fill with water and stopped the flow of oxygen to the victim’s brain, thereby

causing the victim to expire. Id. at 12-30. As such, the medical examiner’s

testimony that the victim’s cause of death was due to a blunt force injury to

the top of the victim’s head was not inconsistent with the emergency room

physician’s assessment that the cause of death was “head trauma.”

Our review of the cause of death testimony reveals that trial counsel

pursued a reasonable trial strategy given the evidence of substantial injuries

discovered on the victim’s body and the fact that the cause of death listed on

the notice of death was not inconsistent with the cause of death as explained

by the Commonwealth’s expert witness. For example, during

cross-examination of the medical examiner, trial counsel sufficiently

challenged the medical examiner’s assessment that the fatal injuries to the

victim’s head were not caused by a fall or accident. As a result of this

cross-examination, the medical examiner agreed that the victim’s death was

the “result of an accumulation of injuries [to the victim] over a time frame[.]”

Id. at 41. The medical examiner further agreed that it was conceivable the

injuries to the top of the victim’s head were caused by “a baseball hitting [the

victim] on the head.” Id. at 40.

It was then within the purview of the jury to weigh the evidence and

assess the credibility of the witnesses, such as the medical examiner, and

believe all, some, or none of the testimony regarding the cause of death. As

determined by our Supreme Court in Powell, supra, “[t]he evidence, when

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viewed in the light most favorable to the Commonwealth as verdict winner,

was sufficient to permit the jury to conclude, beyond a reasonable doubt, that

[Appellant] intentionally, deliberately, and with pre-meditation killed [the

victim].” Powell, 956 A.2d at 417.

Moreover, Appellant failed to demonstrate how he was prejudiced by

trial counsel’s alleged failure to challenge the cause of death by asserting that

the cause of death was simply due to “head trauma.” As discussed supra, the

cause of death listed on the notice of death is not inconsistent with the cause

of death as explained by the medical examiner who performed an autopsy on

the victim. Both the notice of death and the medical examiner noted the fresh

head trauma suffered by the victim, as well as fresh and healed injuries on

the victim’s body. As explained by the medical examiner, the fresh head

trauma, coupled with prior injuries, led to the victim suffering a seizure that

ultimately caused his death. In this context, focusing on head trauma as the

cause of death would not have wholly corroborated a claim of innocence, nor

was a strategy likely to diminish Appellant’s level of criminal culpability in a

meaningful way. As such, Appellant was not prejudiced by trial counsel’s

performance. Therefore, Appellant’s ineffectiveness claim on this ground is

without merit.

In his second issue, Appellant raises a claim that prior PCRA counsel was

ineffective for failing to raise trial counsel’s ineffectiveness regarding a

challenge to the victim’s cause of death. Appellant’s Brief at 53-59.

Appellant’s assertion of prior PCRA counsel’s ineffectiveness is belied by the

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record. Both Attorney Stretton, in the first amended PCRA petition, and

Attorney Kaufmann, the second amended PCRA petition, raised the claim that

trial counsel was ineffective for failing to challenge the cause of death. See

First Amended PCRA Petition, 12/31/18, at ¶17; see also Second Amended

PCRA Petition, 1/31/21, at 8. Moreover, the PCRA court addressed this claim

of trial counsel’s ineffectiveness in its Rule 1925(a) opinion. PCRA Court

Opinion, 6/30/22, at 13-15. As discussed supra, we concur with the PCRA

court that a claim of trial counsel’s ineffectiveness based on a failure to

challenge the cause of death is without merit. Therefore, Appellant is not

entitled to collateral relief based upon his allegations of PCRA counsel’s

ineffectiveness.15

____________________________________________

15 To the extent that Appellant asserts the PCRA court erred in denying his

petition without first conducting an evidentiary hearing, we find this claim to

be without merit.

It is well-established that a “a petitioner is not entitled to a PCRA hearing as

a matter of right[. T]he PCRA court can decline to hold a hearing if there is

no genuine issue concerning any material fact and the petitioner is not entitled

to post-conviction collateral relief, and no purpose would be served by any

further proceedings.” Commonwealth v. Taylor, 933 A.2d 1035, 1041

(Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008); see also

Pa.R.Crim.P. 907(1) (stating that, the PCRA court may dispose of a petition

without a hearing when the PCRA court is “satisfied from [its] review that

there are no genuine issues concerning any material fact and that the

[petitioner] is not entitled to post-conviction collateral relief, and no purpose

would be served by any further proceedings”). For the reasons discussed

herein, we find Appellant failed to establish a colorable claim about which there

remained a material issue of fact. Therefore, we discern no error of law or

abuse of discretion in the PCRA court’s decision to deny the petition without

an evidentiary hearing.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2023

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