# Commonwealth v. Mason, L., Aplt

> Supreme Court of Pennsylvania · December 29, 2015 · 634 Pa. 359

URL: https://www.frixlaw.com/law-library/cases/9820896

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Lenwood MASON, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** December 29, 2015
- **Citations:** 634 Pa. 359; 130 A.3d 601; 2015 Pa. LEXIS 3191; 2015 WL 9485173
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Stevens
- **Judges:** Saylor, Eakin, Baer, Todd, Stevens
- **Cited by:** 624 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9820896

## How later opinions describe it (automated extraction)

- explaining that, “the passage of time between provocation and the ‘passion’ must be viewed as a cooling period, and killings will not be deemed to have occurred under the heat of passion where there was sufficient time for cooling between whatever provocation might have existe…
- stating: “To establish a diminished capacity defense, a defendant must prove that his cognitive abilities of deliberation and premeditation were so compromised, by mental defect or voluntary intoxication, that he was unable to formulate the specific intent to kill”
- concluding that Mason waived a claim that he raised for the first time in his response to the Commonwealth’s motion to dismiss, where Mason failed to point to where he sought, and was granted, the PCRA court’s permission to amend his petition to include the claim
- stating: “What our jurisprudence has consistently prohibited at both trial and appellate levels when strategic disagreements arise between defendant and counsel is the option of hybrid representation, where an otherwise represented defendant acts as de facto co-counsel exercis…
- stating that, the question is not whether there were other more logical courses of action which trial counsel could have pursued but, rather, whether trial counsel’s decisions had any reasonable basis

## Opinion text

OPINION
Justice STEVENS.
This is a collateral capital appeal from an order of the Court of Common Pleas of Philadelphia County dismissing Appellant Lenwood Mason’s first petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. 1
Appellant’s convictions arose from the June 19, 1994, stabbing death of Iona Jeffries. The underlying facts as adduced at trial were enunciated by this Court in affirming Appellant’s conviction and sentence on direct appeal:
*376 [0]n March 31, 1994, police were called to the 3800 block of Clearfield Street in Philadelphia. Officer Terry Brown observed Appellant walking on Clearfield Street, with Iona Jeffries close to his side. Noting a frightened look on Ms. Jeffries’ face, the officer approached her and asked if she was all right. The officer noticed bruises on Ms. Jeffries’ forehead, shoulder, neck and mouth. Although Appellant told the officer that Ms. Jeffries had been attacked by several other women, Ms. Jeffries informed the officer that Appellant had actually caused her injuries. Ms. Jeffries explained to the officer that she was reluctant to press charges against Appellant, as she feared he would kill her. Based on his [sic] own observations and Ms. Jeffries’ statements, however, the officer placed Appellant under arrest.
Approximately three months later, on the evening of June 18, 1994, Ms. Jeffries was at a bar, Cadillac Slim’s, with Appellant and several of her friends. Appellant had been released from prison two days earlier, on June 16, 1994. When Ms. Jeffries and her friends decided to leave Cadillac Slim’s and go to another club, Ms. Jeffries asked that a male acquaintance drive Appellant home, as she did not want him to accompany her to the club. Upset by Ms. Jeffries’ plans to exclude him, Appellant yelled, “You want it like that?” and ran out of the bar.
At approximately 9:30 the following morning, Ms. Jeffries’ mother, Mrs. Wisteria Jeffries, was at her home when she heard Appellant banging on the door. As Wisteria Jeffries approached the door, she saw Appellant’s hand protruding through the screen door. When Wisteria Jeffries asked Appellant what he wanted, he replied that he needed to speak with Ms. Jeffries. Wisteria Jeffries explained that Ms. Jeffries was asleep. After Appellant insisted that he speak with Ms. Jeffries, Wisteria Jeffries told Appellant to wait outside while she got Ms. Jeffries. She locked the door and went upstairs to Ms. Jeffries’ room, where Ms. Jeffries was sleeping on a bed with her then three year-old son, Anthony. Ms. Jeffries refused to come downstairs. Wisteria Jeffries returned to the front door and told Appellant *377 that Ms. Jeffries was sleeping and that he would have to wait to speak with her. Appellant then forced his way into the house, pushed past Wisteria Jeffries, and ran up the stairs. Wisteria Jeffries immediately called the police.
Wisteria Jeffries retrieved a knife from the kitchen and began to head upstairs, when she saw Appellant descending the steps. Appellant stated to Wisteria Jeffries, “I got her now.” At that point, Wisteria Jeffries attempted to stab Appellant, but he pushed her aside and ran outside, where a neighbor, Greg Bell, saw Appellant placing what appeared to be a knife into the waistband of his pants. Wisteria Jeffries ran upstairs to Ms. Jeffries’ bedroom and found Ms. Jeffries bleeding profusely from multiple stab wounds. Police and rescue units arrived and Ms. Jeffries was taken to the hospital, where she was pronounced dead. [ 2 ] Later that same day, Appellant surrendered to the police and was charged with murder in the first-degree, burglary and possessing an instrument of crime.
Commonwealth v. Mason, 559 Pa. 500, 507-08 , 741 A.2d 708, 712 (1999).
Attorney Thomas W. Moore, Jr., Esq., undertook Appellant’s representation, hiring an investigator, interviewing Appellant and his mother, and retaining Dr. Allan Tepper, an expert in the field of forensic and clinical psychology, to perform a psychological evaluation of Appellant and to provide testimony during the guilt and sentencing phases of trial. As part of his evaluation, Dr. Tepper conducted a clinical interview of Appellant, administered intelligence tests, interviewed Appellant’s mother, and reviewed police discovery materials along with Philadelphia School District records and past drug treatment records. Letter from Dr. Allan Tepper to trial counsel, dated 3/28/95; Declaration and Affidavit of Dr. Allan Tepper, dated 10/29/07, filed 11/1/07.
*378 A jury trial before the Honorable C. Darnell Jones was conducted in February 1996. As we noted on direct appeal, the trial included the following testimony:
Appellant testified on his own behalf, claiming that he had been drinking and doing drugs, including POP for the first time, at the bar on the night before the murder. He testified that after he smoked the PCP, everything went blurry and that he did not recall leaving Cadillac Slim’s or going to Ms. Jeffries’ house on the morning of her murder. He further maintained that he did not regain his senses again until late in the evening on the day of the murder, when he was already in jail. Appellant’s mother and brother [Kevin Mason] also testified in Appellant’s defense. Essentially, they claimed that when they saw Appellant on the day of the murder, he was under the influence of drugs and that his condition was unlike any “high” that they had ever seen him experience.
Mason, 569 Pa. at 509, 741 A.2d at 713 . On February 15, 1996, the jury found Appellant guilty of first-degree murder, burglary, and possessing an instrument of crime. At the penalty phase of trial, Judge Jones instructed the jury with regard to three aggravating circumstances and four mitigating circumstances. 3 All the evidence presented on Appellant’s behalf during the guilt phase of trial was incorporated during the penalty phase, and Appellant’s mother, his uncle, Larry Lawhorn, and Dr. Tepper provided additional testimony to *379 support the mitigating circumstances. 4 Following the penalty phase, the jury returned a verdict of death after finding two aggravating circumstances and no mitigating circumstances. 5 Judge Jones formally imposed the death sentence on February 20, 1996.
Following Appellant’s conviction and sentence, trial counsel was replaced by Gerald Stein, Esq., who filed a direct appeal on Appellant’s behalf. Appellant initially challenged the sufficiency of the evidence to support the jury’s verdict of first-degree murder on the grounds that (1) there was insufficient evidence to establish that Appellant acted with the necessary premeditation; (2) the jury erred in failing to find that Appellant was acting under the “heat of passion” when he fatally stabbed Ms. Jeffries; and (3) the jury erred in finding a specific intent to kill because Appellant presented evidence to show that he was intoxicated at the time of the killing. See Mason, 559 Pa. at 509-511 , 741 A.2d at 718-714 . This Court found no merit to Appellant’s sufficiency claims, determining that: (1) the circumstances of the case did not, as a matter of law, foreclose a finding of premeditation; (2) the record did not support a heat of passion claim since Appellant claimed that he was so intoxicated at the time of the stabbing that he could not remember whether words were exchanged which would give rise to a heat of passion defense, there was no evidence that the victim did anything immediately before the stabbing to provoke Appellant, and the victim’s son testified that his mother was just lying on the bed when Appellant came into the room and began stabbing her; and (3) it was well within the power of the jury to make a credibility determination and disbelieve the evidence presented by Appellant to establish that intoxication prevented him from forming *380 a specific intent to kill. Id., 559 Pa. at 510-512 , 741 A.2d at 713-714 . 6
Appellant’s direct appeal additionally alleged that trial counsel rendered ineffective assistance during the guilt phase of Appellant’s trial by (1) failing to properly consult with Appellant prior to trial; (2) failing to conduct an adequate pre-trial investigation, which would have revealed corroborative evidence that Appellant and the victim reconciled and spent time together in the days immediately before the murder; and (8) referring to the stabbing as a heinous crime during his guilt phase closing argument. Id., 559 Pa. at 513, 515, 518 , 741 A.2d at 715, 716, 718 . This Court determined, however, that Appellant had failed to show that counsel was ineffective. Specifically, we explained that the amount of pre-trial consultation is not a legitimate basis for inferring the total extent and adequacy of counsel’s pre-trial preparation, and we further noted that Appellant had failed to allege any issues that his counsel should have raised or any beneficial information that his counsel would have discovered had further pre-trial consultations been held. Id., 559 Pa. at 514 , 741 A.2d at 715 . Further, regarding the adequacy of counsel’s pretrial investigation, we found that the jury was aware of the apparent reconciliation through the testimony of several witnesses, including the victim’s mother herself; thus, the evidence allegedly missed was merely cumulative, and, regardless, would not have precluded the first-degree murder conviction. Id., 559 Pa. at 515-516 , 741 A.2d at 716-717 . Lastly, as to counsel’s guilt phase closing argument, this Court determined the record reflected that the challenged comment was merely a reminder to the jury that evidence, not emotion, should control the outcome of the case, and, when read in context, the comment was clearly part of counsel’s strategy to persuade the jury that despite the crime’s gruesomeness the evidence showed Appellant was too intoxicated to form the specific *381 intent necessary for a first-degree murder conviction. Id, 559 Pa. at 518-519 , 741 A.2d at 718 .
In addition to leveling guilt phase ineffectiveness claims, Appellant also asserted on direct appeal that he was entitled to a new trial based on after discovered evidence consisting of a letter written by the victim to Appellant while he was imprisoned and a picture of the victim visiting Appellant in prison, which, Appellant asserted, demonstrated their close and intimate relationship. Id., Id., 559 Pa. at 517 , 741 A.2d at 717 . Again, this Court determined that no relief was due since Appellant failed to meet any of the requirements for the grant of a new trial based on after-discovered evidence. Id.
Appellant’s sentence was thus affirmed by this Court on November 24, 1999, and it became final on October 2, 2000, when the United States Supreme Court denied certiorari. Appellant’s execution was subsequently scheduled for March 8, 2001, but was stayed following the filing of a timely pro se PCRA petition on February 13, 2001. 7 Following several extensions of time, Attorney Patrick Egan filed an amended petition on Appellant’s behalf on January 25, 2002, raising thirteen claims for relief and asserting entitlement to an evidentiary hearing and discovery. 8 In addition to the January 25, 2002 amended PCRA petition, Appellant submitted a variety of additional documents including: a “Motion to Immediately Re-Sentence Petitioner to Life Imprisonment” pursuant to Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) and an accompanying “Supplemental *382 Amended PCRA Petition”; 9 a “Supplement and Response in Opposition to the Commonwealth’s Motion to Dismiss and Reply in Support of His Motion for Relief Pursuant to Atkins v. Virginia; ” and two “Supplemental” PCRA petitions. In response, the Commonwealth filed several motions to dismiss, asserting that the majority of Appellant’s claims were previously litigated or waived, or, if reviewable, meritless. Additionally, the Commonwealth assailed as boilerplate Appellant’s allegations of appellate counsel’s ineffectiveness, asserting that such claims are insufficient to overcome waiver.
Over the course of an eleven-year period, the parties’ pleadings, along with various discovery requests and numerous ancillary motions, were heard first by Judge Jones and then by the Honorable M. Teresa Sarmina. Judge Jones scheduled an evidentiary hearing on several of Appellant’s claims, but before the hearing occurred, Judge Jones was appointed to the Federal District Court and Appellant’s case was transferred to Judge Sarmina. The evidentiary hearing was eventually held in October 2011, and was limited to Appellant’s penalty phase issues. During the five day hearing, testimony on behalf of Appellant was elicited from Dr. Robert L. Sadoff, an expert in forensic psychiatry; Dr. Gerald Cooke, an expert in forensic and neuropsychology; Dr. Richard Restak, an expert in neurology; Dr. Allan Tepper, Appellant’s trial expert; Attorney Thomas Moore, Appellant’s trial counsel; Attorney Gerald Stein, Appellant’s direct appeal counsel; Thel *383 ma Mason, Appellant’s mother; Larry Lawhorn, Appellant’s uncle; and Brian Mason, Appellant’s brother. The Commonwealth, in turn, elicited the testimony of Dr. Barry Gordon, an expert in behavioral neurology with special expertise in neu-ropsychology.
At the close of testimony, the parties were directed to file post-hearing submissions addressing the penalty phase issues that had been the subject of the evidentiary hearing. N.T. 10/28/11 at 52. At that time it became clear that Appellant was concerned he had guilt phase claims that remained outstanding, as counsel expressed uncertainty as to which claims had been disposed of by Judge Jones and which claims were unresolved. Id. at 50-51. Appellant’s counsel indicated to Judge Sarmina that he would provide the court with the status of Appellant’s issues, and Judge Sarmina requested that, in addition to addressing the penalty phase mitigation issues, the parties’ post-hearing submissions also indicate the issues upon which Judge Jones definitively ruled and what issues were “still open.” Id. at 51-52. Judge Sarmina then set aside February 13, 2012, “for argument on this whole case, we will be able to see just where everything is at. And what issues might be still left....” Id. at 54-55.
The parties filed the requested post-hearing submissions on February 6, 2012. Appellant initially argued to the court that trial counsel failed to fully investigate Appellant’s background and provide such background information to his expert. Appellant’s Post-Hearing Memorandum at 3. 10 Citing the affida *384 vit and testimony of Thelma Mason and the affidavits of Brian Mason and MaryAnn Mason, Appellant also argued that trial counsel failed to conduct penalty hearing-focused interviews with Appellant’s family, which Appellant suggested would have revealed (1) Appellant’s early developmental problems and his failure to meet expected standards, (2) Appellant’s hyperactivity and accident prone nature, (3) the use of corporal punishment in Appellant’s household, (4) Appellant’s difficulty adjusting in a predominantly white school and white neighborhood, (5) Appellant’s drug use as a teen and subsequent addiction that caused paranoid hallucinations, and (6) Appellant’s drug use on the night before the murder. Id. at 9-13. Appellant further maintained that trial counsel failed to investigate Appellant’s mental health deficiencies, and, despite Dr. Tepper’s pre-trial request, failed to provide additional school records, records of past psychiatric treatment and alcohol and drag abuse treatment, and criminal records, which, Appellant asserted, would have prompted Dr. Tepper to recommended neuropsychological testing that would have revealed Appellant suffered from organic brain damage and enabled Dr. Tepper to opine on the presence of statutory and non-statutory mental health mitigation. In support of this argument, Appellant cited to the testimony of Doctors Cooke, Sadoff and Restak, who, according to Appellant, had the benefit of Appellant’s full records and offered opinions that Appellant suffered from a variety of cognitive conditions that affected his behavior and would have altered the jury’s determination as to the mitigating factors set forth in Sections 9711(e)(2) and (3). Id. at 15-21. 11
*385 In addition to raising claims of counsels’ ineffectiveness, Appellant also argued to the court that the prosecutor’s guilt phase closing arguments improperly urged the jury to convict Appellant because he had no remorse or sympathy for the victim. Id. at 40 (citing N.T. 2/14/96 at 99-100). 12 Appellant acknowledged that his trial counsel objected to the prosecutor’s comment and the objection was sustained, but Appellant contended that trial counsel rendered ineffective assistance for failing additionally to request a curative jury instruction and that appellate counsel rendered ineffective assistance for failing to raise trial counsel’s error. Id. at 41.
The Commonwealth countered that trial counsel properly hired and relied on the opinions of Dr. Tepper, who reviewed a majority of the records that counsel allegedly failed to present, and, following that review, did not recommend any additional testing. Commonwealth’s post hearing brief at 2-3. The Commonwealth further perceived that the information contained in the “additional” records was nothing more than cumulative of information presented to the jury from other sources. Id. at 6. The Commonwealth insisted that even if the jury had been presented with the opinions of the experts retained by Appellant at the PCRA stage, the “mild” impairment from which they believed Appellant to suffer would not have compelled a different mitigation/aggravation conclusion. Id. at 7-13. Similarly, the Commonwealth disputed the contention that ineffectiveness could be found based on counsel’s tactics with regard to family testimony. Id. at 14-16.
Oral argument occurred before Judge Sarmina on February 13, 2012. Appellant immediately complained to the court that his counsel had not addressed the outstanding guilt phase issues, to which Appellant’s counsel responded that he didn’t include them in the post-hearing memorandum submitted on Appellant’s behalf because the penalty phase issues addressed *386 at the hearing were extensive and “it certainly did not seem the appropriate time to do so.” N.T. 2/13/12 at 4-5. Appellant’s counsel maintained that the issues “have not been waived,” and indicated his intention to address them “at the appropriate time.” Id. at 5. Before proceeding to hear argument on the penalty phase issues, Judge Sarmina again requested that the parties indicate what issues were before the court. Id. at 8. 13
Following additional oral argument on June 22, 2012, Judge Sarmina stated on the record that Appellant had not met the prejudice prong required to achieve relief on Appellant’s claim that trial counsel rendered ineffective assistance at the penalty phase of trial. N.T. 6/22/12 at 19. In so finding, Judge Sarmina indicated that she had credited the testimony of Dr. Gordon and had concluded “on balance the prejudice prong has not been met.” Id. Following this determination, Appellant’s counsel again expressed his uncertainty regarding what other issues remained outstanding and requested further opportunity to brief the court. Id. at 22-23. Acknowledging the necessity of a formal ruling on whatever claims remained undecided, Judge Sarmina permitted additional briefing. Id. at 23-24.
On August 28, 2012, Appellant filed a “Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law,” indicating that despite “thoroughly reviewing the record, it is not entirely clear which claims Judge Jones had previously ruled on.” Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law filed 8/28/12 at 1. The motion then sought reconsideration of Judge Sarmina’s determination that Appellant has not proven trial counsel’s ineffectiveness with regard to the penalty phase claims and argued two additional guilt phase claims that: (1) the trial court failed to instruct the jury that “life imprisonment” means life without the possibility of parole and counsel was *387 ineffective for failing to seek such an instruction, and (2) trial counsel was ineffective for failing to present expert testimony and additional evidence in support of heat of passion and voluntary intoxication defenses. Id. at 10,14. Judge Sarmina heard final oral argument on January 3, 2013, and denied Appellant post-conviction relief. Appellant filed a timely appeal of the PCRA court’s denial of relief. 14
“Our review of a PCRA court’s decision is limited to examining whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law are free from legal error.” Commonwealth v. Hanible, 612 Pa. 183, 204 , 30 A.3d 426, 438 (2011) (citing Commonwealth v. Colavita, 606 Pa. 1, 21 , 993 A.2d 874, 886 (2010)). We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party. Id. With respect to the PCRA court’s decision to deny a request for an eviden-tiary hearing, or to hold a limited evidentiary hearing, such a decision is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion. See Commonwealth v. Reid, 627 Pa. 151 , 99 A.3d 470, 485 (2014). “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.” Commonwealth v. Roney, 622 Pa. 1, 16 , 79 A.3d 595, 603 (2013). The denial of an appellant’s request for discovery is reviewed for abuse of discretion. Id.
To be entitled to PCRA relief, a petitioner bears the burden of establishing, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2), which include a violation of the Pennsylvania or United States Constitution or ineffectiveness of counsel, any one of which “so undermined the truth-determining process that no reliable *388 adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(i) and (ii). Further, the petitioner must show that the allegation of error has not been previously litigated or waived pursuant to Pa.C.S. § 9543(a)(3); See Commonwealth v. Baumhammers, 625 Pa. 354, 364 , 92 A.3d 708, 714 (2014).
An issue has been previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” A PCRA claim is waived “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.”
Commonwealth v. Martin, 607 Pa. 165, 176 , 5 A.3d 177, 183 (2010) (citing 42 Pa.C.S. § 9544(a)(2), (b)).
The majority of Appellant’s claims assert that his trial and appellate counsel provided ineffective assistance. Counsel is presumed effective, and in order to overcome that presumption a PCRA petitioner must plead and prove that: (1) the legal claim underlying the ineffectiveness claim has arguable merit; (2) counsel’s action or inaction lacked any reasonable basis designed to effectuate petitioner’s interest; and (3) counsel’s action or inaction resulted in prejudice to petitioner. Commonwealth v. Fletcher, 604 Pa. 493, 515 , 986 A.2d 759, 772 (2009); Commonwealth v. Natividad, 595 Pa. 188, 207 , 938 A.2d 310, 321 (2007). 15 “With regard to ‘reasonable basis,’ the PCRA court ‘does not question whether there were other more logical courses of action which counsel could have pursued; rather, [the court] must examine whether counsel’s decisions had any reasonable basis.’ ” Commonwealth v. Bardo, 629 Pa. 352 , 105 A.3d 678, 684 (2014) (citing Roney, 622 Pa. at 17 , 79 A.3d at 604 ). “Where matters of strategy and tactics are concerned, ‘[a] finding that a chosen *389 strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.’ ” Commonwealth v. Spotz, 624 Pa. 4, 33 , 84 A.3d 294, 311-12 (2014) (citing Colavita, 606 Pa. at 21 , 993 A.2d at 887 ). To demonstrate prejudice, a petitioner must show that there is a reasonable probability that, but for counsel’s actions or inactions, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ; Commonwealth v. Laird, 632 Pa. 332 , 119 A.3d 972, 978 (2015); Commonwealth v. Tedford, 598 Pa. 639, 659 , 960 A.2d 1, 12 (2008). Failure to establish any prong of the Strickland/Pierce test will defeat an ineffectiveness claim. Commonwealth v. Walker, 613 Pa. 601, 612 , 36 A.3d 1, 7 (2011).
Because Appellant was represented by new counsel on direct appeal and that appeal predated Commonwealth v. Grant, 572 Pa. 48 , 813 A.2d 726 (2002), Appellant was required to raise allegations of trial counsel’s ineffectiveness at that time, on pain of waiver. See 42 Pa.C.S. § 9544(b); Fletcher, 604 Pa. at 515 , 986 A.2d at 772-73 ; Commonwealth v. Hubhard, 472 Pa. 259 , 372 A.2d 687 , 695 n. 6 (1977). 16 Although Appellant did raise several allegations of trial counsel’s ineffectiveness on direct appeal, the issues regarding trial counsel’s performance that Appellant currently asks this court to decide were not among them. We note, however, that Appellant’s January 25, 2002 amended PCRA petition included the following claim:
To the extent that prior counsel failed to properly investigate and to make the objections and arguments raised throughout this petition, at trial, in post-trial motions and on direct appeal, counsel were ineffective, in violation of Petitioner’s rights under the Fifth, Sixth, Eighth and Four *390 teenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution.
Amended PCRA Petition filed 1/25/02. Additionally, Appellant’s brief to this Court attaches to each of the claims of trial counsel’s ineffectiveness a layered claim that appellate counsel i-endered ineffective assistance for failing to include those claims on direct appeal.
Where claims of trial counsel ineffectiveness have already been, or could previously have been, litigated ... the only way a petitioner can successfully mount a challenge to the effectiveness of counsel is to assert a “layered” claim of ineffectiveness, establishing first that appellate counsel was ineffective in failing to challenge the effectiveness of trial counsel, which requires as a threshold matter that trial counsel was ineffective in the first instance.
Commonwealth v. Dennis, 597 Pa. 159, 175 , 950 A.2d 945, 954 (2008) (citation omitted). To prevail upon a layered ineffectiveness claim a petitioner must present argument on the three prongs of the Strickland/'Pierce test as to each relevant layer of representation. Commonwealth v. Reaves, 592 Pa. 134, 147-48 , 923 A.2d 1119, 1127-28 (2007).
Thus, Appellant may still be entitled to PCRA relief if he can demonstrate ineffectiveness as to both trial counsel and appellate counsel. The Commonwealth contends that Appellant has not accomplished this because his brief offers only bald assertions of appellate counsel’s ineffectiveness which fail to adequately address all three Strickland/Pierce criteria as to those layered claims. Commonwealth’s brief at 13-15 (citing Commonwealth v. Steele, 599 Pa. 341, 361 , 961 A.2d 786, 797 (2008) for the proposition that “where an appellant fails to meaningfully discuss all three prongs of the ineffectiveness test, this Court is ‘constrained to find such claims waived for lack of development.’ ”). 17
*391 The Commonwealth acknowledges, however, that this Court has held that it may be appropriate to remand the case rather than deny relief where deficiencies in developing claims of appellate counsel ineffectiveness “mirror those in the PCRA pleadings.” Id. at 15, n. 2 (citing Walker, 613 Pa. at 614 , 36 A.3d at 8-9 ). Remand is unnecessary here, the Commonwealth avers, because even assuming Appellant’s claims can be deemed to mirror those presented below, he has already had ample opportunity to develop and support them, and, in any event, his underlying claims are without merit. Id.
This Court has found that in cases where the arguable merit of the underlying claim of trial counsel’s ineffectiveness has been established, remand may be warranted for the opportunity to correct a deficient pleading of the remaining two prongs of the Stickland/Pierce test regarding appellate counsel’s ineffectiveness. Commonwealth v. Moore, 580 Pa. 279, 290 , 860 A.2d 88, 94 (2004) (italics added). We have also concluded, however, that there is no need to remand a PCRA petition when the petitioner has not carried his Stickland/Pierce burden in relation to the underlying claim of trial counsel’s ineffectiveness, “since even if the petitioner were able to craft a perfectly layered argument in support of his claim, the petitioner’s claim would not entitle him to relief.” Id., (citing Commonwealth v. Rush, 576 Pa. 3, 14 , 838 A.2d 651, 657-58 (2003)). Thus, we need not remand if Appellant has not met his burden of proving trial counsel’s ineffectiveness. See also Reid, 627 Pa. at 171-72 , 99 A.3d at 483 (where the Commonwealth’s waiver objection is based solely on the inadequacy of Appellant’s presentation of his claim of appellate counsel’s ineffectiveness, we will address the claims on the merits, where appropriate).
With these standards in mind, we turn to the claims raised by Appellant.
*392 Claim 1. Counsel was ineffective for failing to develop heat of passion, diminished capacity, and voluntary intoxication defenses to first-degree murder; appellate counsel was ineffective; and the lower court erred in summarily denying this claim without an evidentiary hearing.
Before reaching the merits of this claim, we first address the Commonwealth’s assertion that a portion of it has been waived. To do so, we recognize the circuitous path the parties have traveled to reach this Court. Although Appellant now argues that trial counsel should have developed each of the three defenses of heat of passion, diminished capacity, and voluntary intoxication, he did not originally request post-conviction relief on that particular ground. Appellant’s January 25, 2002, amended PCRA petition instead asserted as grounds for relief that:
PETITIONER IS ENTITLED TO RELIEF FROM HIS CONVICTION AND SENTENCE BECAUSE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT STAGE OF PETITIONER’S TRIAL BY FAILING TO PROPERLY CONSULT WITH PETITIONER PRIOR TO TRIAL, FAILING TO PERFORM AN ADEQUATE PRE-TRIAL INVESTIGATION, AND FAILING TO INVESTIGATE, PROCURE AND PRESENT EVIDENCE IN SUPPORT OF THE ONLY DEFENSE OFFERED TO THE CHARGE OF FIRST DEGREE MURDER—VOLUNTARY INTOXICATION. AS A RESULT, PETITIONER’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 9, 13 AND 14 OF THE PENNSYLVANIA CONSTITUTION WERE VIOLATED.
Amended PCRA petition filed 1/25/02, Claim II at i-ii, 17 (capitalization in original).
In pertinent part, the amended PCRA petition supported this claim with detailed argument that, in light of trial counsel’s decision to pursue a voluntary intoxication diminished *393 capacity defense, counsel was ineffective in failing to obtain lay and expert testimony to support that defense. The only mention of trial counsel’s failure to develop a mental deficit diminished capacity defense was a bald allegation that “in addition to his failure to present to the jury the overwhelming evidence of [Appellant’s] diminished capacity due to his PCP use at the time of the offense, trial counsel also failed to investigate and present to the jury the readily available evidence of [Appellant’s] mental deficiencies,” id. at 27, and the amended PCRA petition did not assert or argue that trial counsel was ineffective for failing to develop a heat of passion defense.
The matter was pending before Judge Jones for nearly three more years before Appellant made any reference to trial counsel’s failure to develop a heat of passion defense, and that reference came not in a court approved supplement to Appellant’s PCRA petition, but in a “Response in Opposition to the Commonwealth’s Supplemental Motion to Dismiss and Discovery Requests.” Response filed 12/23/04 at 9. 18 There is no indication that Appellant requested that the PCRA court consider this document to be an amendment to Appellant’s PCRA petition, and there is no indication that the court explicitly granted leave to amend. 19
By the time Appellant raised the heat of passion issue in the “Response in Opposition to the Commonwealth’s Supplemental Motion to Dismiss and Discovery Requests” in December, 2004, the PCRA court was embroiled in Appellant’s Atkins claim, which was followed by argument in 2005 on the applica *394 bility of Grant, supra; a 2006 claim by Appellant (spurred by the disclosure of the “Sagel Lecture” notes) that the Commonwealth had violated Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) (determining that race-based peremptory strikes violated equal protection); and a 2007 claim by Appellant that his conviction must be vacated because he did not receive a pre-trial competency hearing. Although Judge Jones ruled on the bulk of these issues, 20 Appellant’s underlying request for post-conviction relief remained outstanding in 2009, when Judge Jones moved to the Federal bench and Judge Sarmina took his place.
Only after Judge Sarmina conducted the evidentiary hearing on Appellant’s penalty phase mitigation claim did she turn to Appellant’s unresolved guilt phase claims. N.T. 10/24/11— 10/28/11; N.T. 6/22/12 at 22-23. 21 By that time, more than ten years had passed since Appellant’s Amended PCRA petition had been filed, and nearly eight years had passed since Appellant inserted allegations regarding counsel’s failure to raise a heat of passion defense into his “Response in Opposition to the Commonwealth’s Supplemental Motion to Dismiss and Discovery Requests.” Further complicating matters, when Appellant filed his “Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law,” he couched the heat of passion issue as a “claim that had been previously submitted but not adjudicated,” without acknowledging that Judge Jones had never granted permission to supplement the PCRA petition to add the claim. Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law filed 8/28/12 at 1 (emphasis added).
*395 On January 3, 2013, Judge Sarmina heard argument on the reconsideration of Appellant’s penalty phase mitigation claim and additional guilt phase claims. Appellant briefly argued trial counsel’s failure to present evidence in support of voluntary intoxication and mental deficit diminished capacity defenses but did not address counsel’s failure to present a heat of passion defense. The Commonwealth did not comment on Appellant’s failure to properly raise the heat of passion claim as grounds for post-conviction relief, neither was it addressed by Judge Sarmina, who decided at the conclusion of the hearing that trial counsel was not ineffective. N.T. 1/3/13 at 29-30. In so determining, Judge Sarmina first addressed trial counsel’s failure to assail Appellant’s ability to form the specific intent to kill, noting that “the evidence as a whole did, in fact, show that [Appellant] was capable of forming the specific intent to kill and showed very clearly that [Appellant] acted in a deliberate manner.” Id. Additionally, Judge Sarmina determined that trial counsel was not obligated to seek additional expert opinions after Dr. Tepper indicated his findings would not be helpful at the guilt phase of trial. Id. at 30. 22 Thus, Judge Sarmina did not separately address mental deficit diminished capacity but generally found that the evidence demonstrated that Appellant was capable of forming the specific intent to kill and that trial counsel had reasonably retained and relied on Dr. Tepper, thus supporting a finding *396 that trial counsel should not be found ineffective for failing to develop that defense.
With regard to the presentation of a heat of passion defense, Judge Sarmina concluded that trial counsel was not ineffective for failing to present psychiatric testimony in support of such a defense because Appellant could not make the requisite objective showing of sufficient legal provocation by the victim; thus, all the elements of the defense were not present. Id. at 30-31. Judge Sarmina further noted that even if Appellant could prove sufficient legal provocation, he failed to establish that the killing happened so suddenly as to preclude a cooling period. Id. Judge Sarmina also acknowledged that this Court had determined on direct appeal that there was no evidence of provocation. Id. (citing Mason, 559 Pa. at 511 , 741 A.2d at 714 ). 23 After setting forth her reasons for doing so on the record, Judge Sarmina denied reconsideration and dismissed Appellant’s request for post-conviction relief in open court, indicating that the parties would receive no additional notice of the dismissal. N.T. 1/3/13 at 32.
Following his timely appeal of Judge Sarmina’s denial of relief, Appellant filed a Rule 1925(b) statement. Adding to the developing procedural quagmire, however, despite arguing to Judge Sarmina in his “Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law” that trial counsel failed to develop each of the three discrete defenses of heat of passion, mental deficit diminished capacity and voluntary intoxication diminished capacity, Appellant’s Rule 1925(b) statement alerted Judge Sarmina only that Appellant intended to claim on appeal “counsel failed to ... obtain and elicit witness and expert testimony that would demonstrate petitioner was guilty of no more than third-degree murder.” Pa. *397 R.A.P. 1925(b) statement at 2, Matter 5. As a result, the response contained in Judge Sarmina’s Rule 1925(a) opinion harkens back to Appellant’s original claim that trial counsel failed to “investigate, procure and present evidence” in support of the defense of voluntary intoxication, Amended PCRA petition at 17, and addresses the reasons trial counsel should not be found ineffective for failing to develop that defense.
In doing so, Judge Sarmina initially opined that, to the extent Appellant asserts that trial counsel erred in failing to call lay witnesses Larry Lawhorn and Brian Mason in support of a voluntary intoxication defense, 24 such an allegation was previously litigated by this Court on direct appeal, Pa.R.A.P. 1925(a) Opinion filed 11/20/13 at 19-20 (citing Mason, 559 Pa. at 514, n. 6 , 741 A.2d at 716 n. 6). Turning to whether trial counsel was ineffective for failing to call a mental health expert to explain the effects of PCP and opine that the drug prevented Appellant from forming the specific intent to kill, 25 Judge Sarmina reiterates her conclusion that trial counsel was not ineffective for failing to do so because (1) counsel acted appropriately by retaining Dr. Tepper, an experienced expert in forensic and clinical psychology, to evaluate Appellant for purposes of building potential guilt phase defenses; (2) counsel reasonably relied on Dr. Tepper’s indication to counsel that based on his examination of Appellant he could not render an opinion to assist during the guilt phase and to do so might instead be harmful to the defense; and (3) counsel was not obligated to search for additional, different, expert opinions after receiving Dr. Tepper’s opinion. Id. at 21-22 (citing Commonwealth v. Bracey, 568 Pa. 264, 278 , 795 A.2d 935 , 942- *398 943 (2001)) (“An attorney will not be deemed ineffective for choosing not to present expert testimony in support of a particular defense if an expert, after conducting a reasonable evaluation, informed the attorney that he could not aid the defense(s) at issue.”). 26
Additionally, as part of a discussion of Appellant’s Rule 1925(b) claim that the PCRA Court erred by limiting the scope of the evidentiary hearing by not permitting additional evidence to illustrate that Appellant was guilty of no more than third-degree murder, Judge Sarmina opined that with regard to the presentation of a mental deficit diminished capacity defense, trial counsel retained Dr. Tepper in an attempt to secure expert testimony at the guilt phase to support any defense to murder of the first-degree, including mental deficit diminished capacity. Dr. Tepper examined and evaluated Appellant for such potential guilt-phase defenses, including the mental deficit diminished capacity defense, but Dr. Tepper informed trial counsel that he could not testify in support any guilt-phase defenses; thus, trial counsel cannot be deemed ineffective for reasonably relying on Dr. Tepper’s learned evaluation. Id. at 22, n. 19. 27
Veering from the language of his Rule 1925(b) statement back to the more specific language of his “Motion for Reconsideration and Supplemental Post-Hearing Memoran *399 dum of Law,” Appellant currently asserts to this Court that trial counsel was ineffective for failing to develop the defenses of heat of passion, mental deficit and voluntary intoxication diminished capacity. Appellant’s brief at 10. 28 The Commonwealth asks that we find waived the portion of this claim pertaining to the heat of passion defense because it was not raised in Appellant’s amended PCRA petition and Appellant failed to obtain leave of court to supplement the petition to include it. 29 Commonwealth’s brief at 25 (citing Reid, 627 Pa. at 173-74 , 99 A.3d at 484 ; Baumhammers, 625 Pa. at 390 , 92 A.3d at 730-731 ; Commonwealth v. Elliott, 622 Pa. 236, 261 , 80 A.3d 415, 430 (2013)). 30 Appellant does not specifically *401 disagree with the Commonwealth’s accusation that he did not obtain leave of court to amend his PCRA petition to include the heat of passion issue. Instead, addressing this issue as part of a larger challenge to the various “deficiencies” raised by the Commonwealth, 31 Appellant asserts that the PCRA court’s failure to give notice of its intention to dismiss as required by Pennsylvania Rule of Criminal Procedure 909 denied him the opportunity to respond to the dismissal and remedy the deficiencies, requiring us to remand the matter. 32 Appellant’s reply brief at 7-10.
Appellant’s argument is misplaced. He did not receive notice of dismissal for failure to properly amend (and the accompanying opportunity to, presumably, seek to cure the deficiency by properly amending) because that was not the ground upon which Judge Sarmina dismissed the issue. Instead, because of the procedural irregularities of this case, caused in part by Appellant’s own counsel’s indication to the court that the heat of passion issue had been properly pleaded and was awaiting determination, Judge Sarmina did not recognize that the issue had not been properly pleaded. As such, *402 she allowed both written and oral argument on it and addressed it on its merits, see N.T. 1/3/13 at 25-30, before determining that trial counsel was not ineffective for failing to pursue a heat of passion defense because it could not be proven in the absence of the necessary element of provocation. Although the Commonwealth is correct that Appellant never received permission to amend his request for relief to include the heat of passion claim, the Commonwealth is partially responsible for Judge Sarmina’s failure to recognize that fact, as the prosecutor not only failed to contradict Appellant’s counsel’s misstatements to the court, but also argued the issue at the January 3, 2013 hearing as if it had been properly pled. Id. at 25.
Nevertheless, it is well-settled that claims raised outside of a court-authorized PCRA petition are subject to waiver regardless of whether the Commonwealth raises a timely and specific objection to them at the time they are raised. Reid, 627 Pa. at 173-74 , 99 A.3d at 484 . While the Commonwealth in Reid urged this Court to find waiver in that case, we did not hold that waiver was conditional upon the Commonwealth first objecting to unauthorized claims. Instead, our decision depended only upon whether the petitioner had sought and received permission to amend his claims through a supplemental petition. Finding that the petitioner in Reid had not sought the court’s permission, we found his claims to be waived.
The petitioner bears the onus of informing the PCRA court that he or she seeks to add claims through an amended petition, and, in response, the court shall freely grant leave to amend where doing so achieves substantial justice consistent with the dictates of Pa.R.C.P. 905(A). As described above, Appellant failed properly to seek the PCRA court’s permission to amend his PCRA petition to include, for the first time, a layered ineffectiveness claim founded on the theory that trial counsel should have presented a diminished capacity “heat of passion” defense at trial. Judge Sarmina entertained the newly-raised theory on its merits during the evidentiary hear *403 ing not as part of a policy to authorize and address all new claims at that time—she had, in fact, adopted no such policy 33 —but in apparent reliance upon the parties’ taking up argument of the claim as if it had been properly pleaded at some point before Judge Jones. We, therefore, find that Appellant has waived the heat of passion claim for failure to raise it in an authorized amended PCRA petition.
Even if, under the particular circumstances of this case, we were willing to view Judge Sarmina’s opening statement at the January 3, 2013, evidentiary hearing as implicitly authorizing all new claims, including Appellant’s heat of passion claim, so as to preclude the application of waiver doctrine herein, we would still find no error with Judge Sarmina’s determination that trial counsel did not render ineffective assistance for failing to present lay and expert testimony in support of a “heat of passion” defense. We engage in merits review of this ineffective assistance claim first.
Applying the standard governing ineffectiveness claims under the PCRA, we begin by reviewing Appellant’s assertion that this underlying claim is of arguable merit because there was evidence that Appellant acted out of heat of passion, and the presentation of such evidence, coupled with expert testimony, would have raised a reasonable doubt as to first-degree murder. Appellant’s brief at 14. A heat of passion defense is a partial defense that addresses the element of intent and, if successfully argued, mitigates first-degree murder to third-degree murder. See Com. v. Hutchinson, 611 Pa. 280 , 25 A.3d 277, 314 (2011). It seeks to show that the defendant is guilty of voluntary manslaughter, not murder, by proving that at the time of the killing he or she was acting under a sudden and intense passion resulting from serious *404 provocation by the victim. See 18 Pa.C.S. § 2503(a) (“[a] person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by ... the individual killed.”).
In order to successfully argue heat of passion, a defendant must prove (1) provocation on the part of the victim, (2) that a reasonable man who was confronted with the provoking events would become “impassioned to the extent that his mind was incapable of cool reflection,” and (3) that the defendant did not have sufficient cooling off time between the provocation and the killing. See Commonwealth v. Busanet, 618 Pa. 1, 34-35 , 54 A.3d 35, 55 (2012) (holding no evidence of provocation where the victim’s threats against Appellant were made weeks prior to the shooting, thereby affording Appellant sufficient time to engage in cool reflection); Martin, 607 Pa. at 186 , 5 A.3d at 189 (“In determining whether there was sufficient provocation to create uncontrollable passion in a reasonable person, we determine whether the killer actually acted in the heat of passion, whether the provocation lead directly to the slaying of the person responsible for the provocation, and whether the killer had sufficient cooling off time.”); Commonwealth v. Williams, 602 Pa. 360 , 391 n. 30, 980 A.2d 510 , 529 n. 30 (2009) (a violent confrontation occurring two days before the murder would not serve to reduce the degree of guilt to manslaughter, since killings do not occur under the heat of passion where there was sufficient time for cooling between whatever provocation might have existed and the actual killings). Further, “[i]f any element is missing, the provocation defense fails.” Martin, supra. See also Commonwealth v. Sanchez, 623 Pa. 253, 314 , 82 A.3d 943, 980 (2013) (“If any of these be wanting—if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder.”).
Here, in declaring that there was arguable merit to a heat of passion defense, Appellant posits that the required *405 provocation came in the form of the cumulative effect of his “stormy relationship” with the victim and her revelations of infidelity. Appellant’s brief at 14-15. Appellant asserts that such revelations are shown through (1) the declaration of Appellant’s Uncle, Larry Lawhorn, that Appellant told Law-horn that the victim boasted to Appellant of her infidelity while they were dating; and (2) Appellant’s statement to Dr. Robert Sadoff that the victim told Appellant about her sexual exploits with other men during her relationship with Appellant. Id. at 15 (citing Declaration of Larry Lawhorn; N.T. 10/24/11, 31-32, Declaration of Dr. Robert Sadoff). Appellant does not specifically assert that, at the time of the killing, the victim’s provocation caused him to act, nor does he address the implications of a cooling off period.
In response, the Commonwealth disputes the arguable merit to the pursuit of a heat of passion defense, reflecting that Appellant made no claim the victim did anything immediately prior to the killing to provoke him, let alone that such hypothetical provocation incited Appellant to a sudden and intense passion, and noting that instead, Appellant testified that he had no recollection of the killing or his state of mind when committing it. Commonwealth’s brief at 26. In so arguing, the Commonwealth assails as inadmissible hearsay Appellant’s Uncle’s rendition of what Appellant allegedly told him the victim allegedly told Appellant, and further posits that regardless, revelations of infidelity are not sufficient provocation to support a heat of passion defense. Id. at 27 (citing Commonwealth v. Miller, 605 Pa. 1, 20-21 , 987 A.2d 638, 649-51 (2009) (allegations of victim’s past infidelities and flirtatiousness insufficient provocation); Watson, 523 Pa. at 61, 565 A.2d at 137 (awareness that victim, appellant’s former long-time girlfriend, had a new boyfriend was not sufficient legal provocation)). The Commonwealth additionally asserts that expert testimony regarding Appellant’s state of mind would have become relevant only had Appellant been able to show sufficient legal provocation, which he could not, and further, that trial counsel cannot be faulted for failing to investigate Appellant’s recollec *406 tions of the circumstances of the crime, because Appellant told trial counsel that he had no such recollections. Id. at 28.
We find Appellant has failed to show there was arguable merit to a heat of passion defense, and has not presented a basis upon which trial counsel may be found to have acted unreasonably. To the extent that Appellant suggests a heat of passion defense may be based purely on provoking actions or statements that are not contemporaneous to the resulting “sudden and intense passion,” Appellant is clearly mistaken, as the passage of time between provocation and the “passion” must be viewed as a cooling period, and killings will not be deemed to have occurred under the heat of passion where there was sufficient time for cooling between whatever provocation might have existed and the actual killings. See Williams, supra. 34
To the extent Appellant’s argument may be construed as suggesting there was a provoking event and/or statement immediately prior to the killing, such a suggestion is specious in light of Appellant’s own testimony that he does not recall his actions from the night before the murder until after it was committed, much less remember what provoked those actions, 35 and the testimony of the victim’s son that she did *407 nothing prior to the attack and was merely lying on the bed. Further, revelations of infidelity have been deemed insufficient to constitute provocation for purposes of a heat of passion defense. See Miller, 605 Pa. at 22 , 987 A.2d at 651 (“In numerous cases, evidence showing a history of minor disputes and allegations of past infidelity has been held not to be sufficiently provocative to reduce murder to manslaughter.”); Commonwealth v. Dick, 602 Pa. 180, 187 , 978 A.2d 956, 960 (2009) (A tumultuous relationship between appellant and his wife and their argument sometime prior to the incident was “clearly insufficient” to establish “heat of passion,” and appellant did not prove arguable merit to the pursuit of a heat of passion defense).
For these reasons Appellant has failed to prove arguable merit to the pursuit of a heat of passion defense. Even if we were to presume such a defense has arguable merit, Appellant must also show that trial counsel’s course of action lacked a reasonable basis, and he simply has not done so based on the omissions alleged. Appellant faults trial counsel for failing to develop accounts of Appellant’s “long-term, intense and contentious” relationship with the victim, and specifically argues that counsel should have obtained and presented letters from the victim to Appellant expressing her love for him. Appellant’s brief at 16-17. It is unclear how such letters would be of any benefit to proving that the victim provoked Appellant prior to the attack, causing him to act out of sudden and intense passion. Also, because Appellant testified that he did not recall the events of the killing, he could point to no evidence supporting his claim that he acted in the heat of passion. Further, there was no evidence of provocation on the part of the victim immediately prior to the attack, and the letters Appellant faults trial counsel for failing to obtain do not provide such evidence. As such, it was not unreasonable for counsel to forgo attempting to persuade the jury that Appellant acted in the heat of passion.
*408 We turn now to Appellant’s claim that trial counsel was ineffective for failing to develop a diminished capacity defense, and we conclude that Appellant has failed to show trial counsel rendered ineffective assistance with regard to the presentation of such a defense. A diminished capacity defense is focused on negating the element of specific intent to Mil and may be grounded in mental defect or voluntary intoxication. See Hutchinson, 611 Pa. at 340-41 , 25 A.3d at 312 ; Commonwealth v. Spots, 616 Pa. 164, 210 , 47 A.3d 63, 90 (2012). “To establish a diminished capacity defense, a defendant must prove that his cognitive abilities of deliberation and premeditation were so compromised, by mental defect or voluntary intoxication, that he was unable to formulate the specific intent to kill.” Spotz, 616 Pa. at 211 , 47 A.3d at 90-91 . A diminished capacity based on voluntary intoxication cannot be made out by mere evidence of intoxication, but rather requires evidence that demonstrates the defendant was intoxicated to such an extent he was unable to form the requisite intent. Commonwealth v. Spotz, 587 Pa. 1, 47 , 896 A.2d 1191, 1218 (2006). “For a defendant who proves a diminished capacity defense, first-degree murder is mitigated to third-degree murder.” Hutchinson, supra (citing Commonwealth v. Saranchak, 581 Pa. 490 , 866 A.2d 292, 299 (2005)). The factual circumstances under which a voluntary intoxication diminished capacity defense could be mounted are obviously different than those which would warrant a mental deficit diminished capacity defense. Nonetheless, Appellant addresses the defenses together for purposes of establishing that he has met the three Strickland/Pierce factors and showing that trial counsel rendered ineffective assistance.
Appellant initially asserts there exists arguable merit to the claim that trial counsel should have investigated and presented evidence to support a diminished capacity defense by involuntary intoxication or mental deficit. With respect to involuntary intoxication, Appellant argues, counsel knew Appellant was low-functioning mentally and struggled with substance abuse since his teen years. Appellant’s brief at 11. This profile, when coupled with testimony offered by family mem *409 bers who viewed Appellant to appear “highly intoxicated” and “paranoid” on the evening in question, should have prompted counsel to investigate further into Appellant’s medical and corrections history, which, Appellant asserts, would have provided additional evidence of his violent reactions to heavy drug use. Appellant concludes reasonable counsel in trial counsel’s position would have then consulted an expert as to the intoxicating effects of marijuana and PCP on Appellant’s mental state.
Contrary to Appellant’s position, however, it is clear that trial counsel did undertake such a defense by presenting extensive testimony from Appellant, his mother, and his brother, Kevin, regarding Appellant’s highly intoxicated state before the murder (fueled in part by his first-time use of PCP to the point where he blacked out completely and appeared to be hallucinating), and Appellant’s dazed and unusual appearance after the crime occurred. Moreover, he pursued the expert neuropsychological opinion of Doctor Tepper as to the likely effects of intoxication on Appellant, but he reasonably opted against using the unfavorable opinion Dr. Tepper offered. Therefore, though the record supports the position that there was arguable merit to investigating and presenting a diminished capacity-involuntary intoxication defense, it also shows that trial counsel did, in fact, investigate and present the claim. Whether trial counsel took a reasonable tack with respect to advancing this defense implicates the reasonable basis prong of this ineffectiveness claim, which we take up infra.
As for the arguable merit to Appellant’s assertion that trial counsel should have pursued a diminished capacity-mental deficit defense, Appellant fails to establish that the record would have supported such a defense. Although the diminished capacity doctrine is well-recognized as a permissible defense to first-degree murder in the appropriate situation, this Court has recognized that the defense is an extremely limited one. See Commonwealth v. Taylor, 583 Pa. 170, 187 , 876 A.2d 916, 926 (2005) (citing Commonwealth v. Travaglia, 541 Pa. 108, 128, n. 10 , 661 A.2d 352 , 359 n. 10 (1995)). Because the defense is directed exclusively at the negation of *410 specific intent, for evidence to be admissible it must necessarily put into question the criminal defendant’s very ability to form the intent to kill. Id. Thus, “[ejvidence that the defendant lacked the ability to control his or her actions or acted impulsively is irrelevant to specific intent to kill, and thus is not admissible to support a diminished capacity defense. Furthermore, diagnosis with a personality disorder does not suffice to establish diminished capacity.” Hutchinson, 611 Pa. at 341 , 25 A.3d at 312 (citations and footnote omitted). Additionally, the evidence must provide insight as to the defendant’s mental state at the time of the offense, “the only relevant time for a diminished capacity defense.” Commonwealth v. Spotz, 610 Pa. 17, 144 , 18 A.3d 244, 319 (2011) (citing Commonwealth v. Rainey, 593 Pa. 67 , 928 A.2d 215, 237 (2007) (requiring a defendant advancing a defense of diminished capacity based on mental defect to “establish [that he or she] had a mental defect at the time of [the] murder that affected his [or her] cognitive abilities of deliberation and premeditation necessary to formulate specific intent to kill.”)).
Here, the only basis upon which Appellant suggests counsel was obligated to pursue a mental deficit diminished capacity defense was trial counsel’s knowledge that Appellant was “low functioning,” his IQ was “barely above the [intellectually disabled] level,” he had “learning difficulties” as a child and, according to Appellant’s uncle, suffered from a “nervous condition.” Appellant’s brief at 11-12. Even if true, these contentions do not suggest Appellant’s cognitive abilities of deliberation and premeditation were so compromised by mental defect that he was unable to formulate the specific intent to kill, much less that he suffered from such mental deficit at the time of the stabbing. Further, any support the evidence of Appellant’s low IQ and learning disabilities may have provided for a mental deficit diminished capacity defense was countered by the evidence that, at the time of the attack, Appellant appeared to be fully capable of deliberate and reasoned thought, as exhibited by Appellant’s lucid attempt to negotiate access to the victim’s house and his sober demeanor after turning himself in to police. Further, the arguable merit to a *411 mental deficit diminished capacity defense was not suggested to counsel by his expert, as Dr. Tepper, with knowledge that Appellant suffered such diminished IQ and learning difficulties, was nevertheless of the opinion that Appellant was indeed able to form a specific intent to kill. 36 We conclude, therefore, that Appellant has failed to show there would have been arguable merit to the pursuit of a diminished capacity-mental deficit defense. Commonwealth v. Philistin, 617 Pa. 358, 379 , 53 A.3d 1, 12 (2012) (“[A]s appellant failed to show he lacked the ability to form a specific intent to kill, a diminished capacity defense was inapplicable, and trial counsel was not ineffective for failing to present such defense.”).
Even assuming there would have been arguable merit to pursuing both a voluntary intoxication and a mental deficit diminished capacity defense, we nonetheless find Appellant has failed to show that trial counsel’s course of action lacks a reasonable basis, thus Appellant has not met the second prong of the Strickland/Pierce test. With regard to trial counsel’s alleged failure to appropriately pursue these defenses, Appellant accuses trial counsel of failing to seek additional records, failing to interview additional family members to learn more about how Appellant reacted when on drugs, and failing to consult with an expert and provide the expert with such records and testimony. Appellant’s brief at 12-13.
Appellant specifically faults trial counsel for failing to obtain records from the Albert Einstein Medical Center showing that *412 Appellant overdosed on drugs as a teenager, and Philadelphia Prison System records confirming Appellant’s heavy drug use and revealing “possible suicide attempts” and head trauma. Id. at 12. The Commonwealth counters that trial counsel reasonably pursued a voluntary intoxication defense by presenting testimony that Appellant used PCP for the first time the night before the stabbing, that during the early morning hours before the stabbing Appellant was mumbling and hallucinating (behavior which was markedly different from how he normally reacted when high), and that after the stabbing Appellant was extremely disoriented and remembered nothing of the previous hours’ events. Commonwealth’s brief at 16-17 (citing N.T. 2/12/96 at 156-167; 2/13/96 at 25-26, 30-36). The Commonwealth asserts that trial counsel properly relied on Appellant and his family to provide accurate background information, and, to the extent that they did not supply information about purported “suicide attempts” and “head trauma,” counsel cannot be found incompetent for failing to uncover such information. Id. at 20, Further, the Commonwealth points, out, Appellant himself specifically denied being suicidal. Id. at 20 n. 4 (citing N.T. 10/24/11, 58; 6/22/12, 17-18).
Appellant also faults trial counsel for failing to present the testimony of his brother Brian that Appellant had a longstanding drug problem and appeared high before the stabbing. He specifically asserts that Brian would have testified Appellant was a drug addict from the time he was a teenager, that Appellant hallucinated when he was high, and that Appellant looked high on the night of the murder. Appellant’s brief at 13 (citing N.T. 10/26/11, 190; Declaration of Brian Mason [Appendix to Amended PCRA petition, tab 4]), The Commonwealth counters that because only Appellant’s mother and uncle cooperated with trial counsel, and counsel was never informed that Brian Mason had any information that would have supported the defense, counsel cannot be deemed to have acted unreasonably in failing to call Brian Mason to testify. Commonwealth’s brief at 19 (citing N.T. 10/25/11 at 18; N.T. 10/26/11 at 202). The Commonwealth further asserts that *413 Brian Mason’s testimony would have been cumulative. Id. at 20.
Appellant lastly posits that “[pjrofessionally reasonable counsel who was in possession of this evidence would have consulted an expert with respect to diminished capacity/voluntary intoxication and provided the relevant information to the expert.” Appellant’s brief at 13. Appellant observes that his current counsel was able to obtain an opinion from Dr. Barbara Mash, an expert in neuropharmacology, that the intoxicating effects of marijuana and PCP, combined with Appellant’s underlying organic brain syndrome and history of cocaine dependence, prevented Appellant from forming a specific intent to kill. Id. at 13-14 (citing Declaration of Dr. Barbara Mash attached as “Exhibit C” to Appellant’s brief).
To the extent that the Commonwealth construes Appellant as faulting trial counsel for failing to call Dr. Mash as an expert witness, the Commonwealth insists such a claim has been waived by Appellant’s failure to include it in a PCRA petition. Commonwealth’s brief at 21 (citing Reid, 627 Pa. at 173-74 , 99 A.3d at 484 ; Baumhammers, 625 Pa. at 390 , 92 A.3d at 729-730 ; Elliott, 622 Pa. at 261 , 80 A.3d at 430 ). Regardless, the Commonwealth posits, trial counsel cannot be deemed ineffective on this basis because counsel did, in fact, consult an expert, Dr. Tepper, who evaluated Appellant’s history of drug and alcohol abuse, including his use of PCP, and the impact such abuse might have had on Appellant’s ability to control his behavior. Commonwealth’s brief at 17 (citing N.T. 2/16/96 at, 76-80, 83-84). 37 The Commonwealth emphasizes that trial counsel was nonetheless unable to offer Dr. Tepper as a guilt phase witness because Dr. Tepper told trial counsel that “he could not render an opinion sufficient to assist .., defendant at the guilt phase” and “it would probably be harmful to ... defendant if he were called to testify at that phase.” Id. at 17 (citing N.T. 2/17/96, 12-13); 22-23 (citing *414 N.T. 10/25/11, 50). 38 The Commonwealth further notes Dr. Tepper himself testified, in a manner completely incompatible with a diminished capacity defense, that Appellant’s actions near the time of the crime revealed that he was able to form an intent to kill. Id. at 23 (citing N.T. 10/25/11, 190-191). 39 The Commonwealth observes Appellant cites to nothing to indicate that Dr. Tepper’s opinion in this regard would have changed had he reviewed any of the additional information Appellant faults counsel for failing to provide. Id. 40 Thus, the Commonwealth asserts, trial counsel appropriately relied upon Dr. Tepper’s opinion and was not obligated to seek out additional experts in the hope that they would provide a more favorable opinion. Id. at 22 (citing Bracey, supra; Commonwealth v. Lewis, 560 Pa. 240, 244 , 743 A.2d 907, 909 (2000)).
We conclude that because the information contained in the additional records cited by Appellant would have been merely cumulative of the evidence of Appellant’s lifelong struggle with drugs, presented at trial through his own testimony and that of his mother and brother, Kevin, Appellant has failed to show that trial counsel’s failure to obtain the additional records was unreasonable. See Hanible, 612 Pa. at 221 , 30 A.3d at 449 (Trial counsel cannot be deemed ineffective for failing to present additional evidence cumulative of that already presented). Similarly, the proposed testimony from *415 Brian Mason would have been cumulative of the evidence already presented. Additionally, to prevail on a claim that trial counsel was ineffective for failing to present a witness, the defendant must demonstrate (in addition to the existence of the witness and counsel’s awareness of that witness) that the witness was willing and able to cooperate on behalf of the defendant; and that the proposed testimony was necessary to avoid prejudice to the defendant. Commonwealth v. Tharp, 627 Pa. 673 , 101 A.3d 736, 757-58 (2014) Here, Brian Mason never told trial counsel that he observed Appellant on the morning before the crime, and counsel testified that only Appellant’s mother and uncle cooperated with counsel’s investigation. N.T. 10/25/11 at 18, 38; N.T. 10/26/11 at 202. Further, Brian’s statements as to Appellant’s history of drag addiction and his condition prior to the crime would only have served to corroborate the testimony already presented, and cannot be deemed necessary to avoid prejudice to Appellant.
Neither do we find that Appellant has proven that trial counsel acted unreasonably in retaining Dr. Tepper, but declining to call him as a guilt-phase witness in support of a diminished capacity defense, in light of Dr. Tepper’s conclusion that Appellant was, indeed, capable of forming the intent to kill. See Commonwealth v. Whitney, 550 Pa. 618, 632-33 , 708 A.2d 471, 478 (1998) (trial counsel reasonably decided not to elicit guilt phase testimony from the expert he had retained to evaluate the defendant, because the expert determined that the defendant failed to meet the criteria for diminished capacity and would have weakened that defense).
Appellant also asserts that he suffered prejudice as the result of trial counsel’s course of action in this regard, alleging that had trial counsel conducted a reasonable investigation and provided the results to an appropriate expert, that expert could have testified that Appellant’s “underlying cognitive impairments and cocaine dependence, together with his intoxicated state at the time of the offense” rendered Appellant incapable of forming specific intent to kill, prompting the jury to acquit Appellant of first-degree murder. Appellant’s brief at 18-19. The Commonwealth disagrees, arguing that *416 additional evidence attempting to prove that Appellant’s purported mental deficit and intoxication prevented him from forming the specific intent to kill would not overcome in the minds of the jury the evidence introduced as to Appellant’s actual demeanor before, during and after the stabbing, which showed that he did, in fact, commit the crime in a deliberate and purposeful manner. Commonwealth’s brief at 24.
In light of our conclusion that there was no arguable merit to the pursuit of a mental deficit diminished capacity defense, our conclusion that trial counsel appropriately investigated and presented a voluntary intoxication defense, and the evidence of record concerning Appellant’s demeanor before, during, and after the commission of the crime that contradicted the assertion that he was unable to form the required specific intent, we find that Appellant has not shown that but for trial counsel’s course of action, the outcome of this matter would have been different, thus Appellant has not established that he was prejudiced.
Appellant asserts that we should remand for an evi-dentiary hearing on the issue of trial counsels’ failure to develop a mental deficit diminished capacity defense. In suggesting that a hearing is necessary, Appellant first perceives that it was unreasonable for Judge Sarmina to credit trial counsel’s statement at the January 1, 2013 hearing, discussed supra, that Dr. Tepper was unable to support such a guilt phase defense, because, Appellant asserts, the statement was not made in the context of an adversarial proceeding. Appellant’s brief at 20-21, Appellant did not complain of Judge Sarmina’s reliance on trial counsel’s explanation at that the time it occurred, however, nor did Appellant raise the allegation of error in his Rule 1925(b) statement. As such, it cannot now provide a basis for relief. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.”); Commonwealth v. Hairston, 624 Pa. 143, 170 , 84 A.3d 657, 672 (2014) (citing Commonwealth v. Castillo, *417 585 Pa. 395 , 888 A.2d 775, 780 (2005) (“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be waived.”)); Commonwealth v. Murray, 623 Pa. 506, 535 , 83 A.3d 137, 155 (2013) (Allegation that the trial court violated notions of due process by partaking in an ex parte communication waived under Pa.R.A.P. 302(a) due to failure to lodge an objection at the time the communication was revealed).
Appellant additionally asserts that remand for an evidentiary hearing is necessary because he raised material issues of fact as to trial counsel’s failure to provide Dr. Tepper with Appellant’s school records and psychiatric and family counseling records, and the PCRA court ignored trial counsel’s failure to obtain evidence to independently support a mental deficit diminished capacity defense. Appellant’s brief at 21 (citing N.T. 10/25/11, 12-13). Appellant has not proven the necessity of remand for an evidentiary hearing on this issue, however. Judge Sarmina did not find credible Dr. Tepper’s testimony that had he received the records he would have been persuaded to send petitioner for neuropsychological testing, and she was not persuaded that had Dr. Tepper been provided additional records he would have changed his opinion at trial that petitioner did “not exhibit any signs or symptoms indicative of an underlying major mental illness or disorder.”
In conjunction with Appellant’s assertion that trial counsel rendered ineffective assistance for failing to raise and/or properly support diminished capacity and heat of passion defenses, Appellant also argues appellate counsel’s ineffectiveness as follows:
Appellate counsel had no reasonable basis for failing to raise [trial counsel’s failure to investigate and present evidence supporting a diminished capacity/voluntary intoxication or heat of passion/voluntary manslaughter defense] on direct appeal. He could have made this claim as one sounding in trial counsel’s ineffectiveness for failing to investigate and raise a meritorious defense. For the reasons set out above, the claim would have been meritorious. Moreover, counsel could have had no strategic reason for failing to raise this claim on appeal, as the raising of a *418 meritorious claim was obligatory. Appellant has also established prejudice. Had counsel raised this claim on direct appeal, there is a reasonable probability that the outcome of the appeal would have been different.
Appellant’s brief at 20. Because Appellant has not demonstrated his entitlement to relief on the underlying claim of trial counsel’s ineffectiveness, however, his claim of appellate counsel’s ineffectiveness is necessarily defeated as well. See Moore, 580 Pa. at 289, n. 3 , 860 A.2d at 94, n. 3 .
Claim 2. Whether Mr. Mason is Entitled to a New Trial Because the Commonwealth Elicited Improper, Prejudicial Hearsay and Whether Counsel were Ineffective When They Did Not Object or Raise the Issue on Direct Appeal.
Officer Terry Brown testified as a prosecution witness as Appellant’s trial. As noted above, Officer Brown arrested Appellant on March 31, 1994 for assaulting the victim. The following exchange occurred at trial:
PROSECUTION: What observations about [the victim’s] demeanor did you make that led you to any particular conclusion about her state of mind?
WITNESS: Well, she was—she had like a frightened look on her face like she really didn’t want us to stop or she did want us to stop, it was really hard to tell, but I knew something was wrong, at which time as they approached the driver’s side of the wagon I jumped out of the wagon and I said to the female, Miss, are you alright. She started to say yes.
DEFENSE COUNSEL: Your Honor, objection.
COURT: Overruled.
WITNESS: She started to say yes and then the defendant, I noticed that the female had bruises on her forehead, she had one on her neck, she had one on her mouth, and at which time the defendant said that a bunch of girls had jumped her, at which time she snatched away from the defendant and said he did it.
DEFENSE COUNSEL: Objection, Your Honor.
*419 THE COURT: Just a moment. Overruled.
PROSECUTION: And she said what?
WITNESS: At which time she pointed to the defendant and she state to me he did it. I automatically placed the defendant under arrest.... I spoke with the female, asked her was she okay and I asked her if she wanted to press charges, at which time she was very unsure and I said, well, he’s under arrest anyway for what I see and from what you stated, he’s under arrest. She—
PROSECUTION: Whai>-go ahead.
WITNESS: At which time she says if you place him under arrest he’s going to kill me.
NT 2/9/96, 63-64. 41 Appellant’s trial counsel did not object to this final response, nor was the issue raised by appellate counsel via post-verdict motion or on direct appeal
Appellant now asserts to this Court:
As evident from the prosecutor’s question preceding the impermissible hearsay, which was changed mid-sentence, the prosecutor knew that the hearsay was improper. The prosecutor asked, “What—go ahead.” Evidently, his question was going to be “What [did she say]?” But, the prosecutor presumably feared that such a question would draw an objection and so he changed it to, “... go ahead.”
Appellant’s brief at 22. Appellant asserts that the prosecutor’s question called for “highly improper and prejudicial hearsay, the statement did not fit any of the hearsay exceptions, and trial counsel erred in failing to object to it.” Id. at 22-23. 42
*420 Before addressing the merits of this claim we note that the Commonwealth has asserted that it has been waived for Appellant’s failure to include it in his amended PCRA petition or any subsequent court approved amendment/supplement to that petition. Commonwealth’s brief at 30-31 (citing Reid, 627 Pa. 173 -74, 99 A.3d at 484 ; Baumhammers, 92 A.3d at 729-30 ; Elliott, 80 A.3d at 430 ).
A review of the record confirms that the claim was not included in Appellant’s January 25, 2002 amended PCRA petition. Instead, it is raised in “Petitioner’s Supplement and Response in Opposition to the Commonwealth’s Motion to Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed on November 10, 2003. The supplement and response specifically asserted:
Upon further investigation, Petitioner, through counsel and pursuant to Pa.R.Crim.P. 905(A) (“Amendment [of a post-conviction petition] shall be freely allowed to achieve substantial justice”), avers the following supplemental claims:
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Claim XVII. MR. MASON IS ENTITLED TO A NEW TRIAL BECAUSE THE COMMONWEALTH IMPROPERLY ELICITED IMPROPER, PREJUDICIAL HEARSAY AND COUNSEL WERE INEFFECTIVE WHEN *421 THEY DID NOT OBJECT OR RAISE THE ISSUE ON POST-VERDICT MOTIONS OR DIRECT APPEAL.
“Petitioner’s Supplement and Response in Opposition to the Commonwealth’s Motion to Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed 11/10/03 at 68, 79 (capitalization in original). 43
Appellant does not point to the location in the record where permission to add this supplemental claim was granted by the PCRA court, and our review of the docket sheet and record reveal nothing to suggest Appellant received such permission. 44 Although Judge Jones dealt with several of Appellant’s claims, he did not specifically address this allegation, nor was it addressed by Judge Sarmina when she took up the case. As we noted above, following the transition from one judge to the other, there was obviously confusion over what issues had been addressed by Judge Jones and what issues remained for Judge Sarmina’s determination. It is clear from the briefs and arguments presented by the parties, as well as the transcripts of the proceedings before Judge Sarmina, that the question of whether Judge Jones had granted Appellant permission to amend his PCRA petition to include this issue did not arise once the matter was transferred to Judge Sarmina. It is also clear that the underlying ineffectiveness claim was not one of the “remaining” issues Appellant sought permission to argue to Judge Sarmina following the evidentiary hearing on the penalty phase mitigating evidence issue, and it is similarly clear that Judge Sarmina did not address the issue. 45 *422 Thus, when Judge Sarmina dismissed Appellant’s PCRA petition, this claim was not mentioned in any way.
Appellant does not dispute the Commonwealth’s assertion that he failed to secure permission to amend his request for post-conviction relief to include this claim, but, he now complains that the PCRA court’s failure to provide proper Rule 909 notice prevented him from curing certain deficiencies alleged by the Commonwealth, including the failure to secure permission to supplement his PCRA petition with additional claims. Appellant did not raise this alleged error before the PCRA court at the time his request for post-conviction relief was denied, nor did he include it in his Rule 1925(b) statement. 46 Instead, he waited until February 22, 2015 (nearly two years after his PCRA petition was denied) to include it in a reply brief to the Commonwealth’s brief to this Court. Reply brief filed 2/2/15 at 9.
Because Appellant did not include the claim in a court-approved amendment to his PCRA petition, it was never decided by the PCRA court. Further, Appellant did not alert the PCRA court that the issue had been passed over until it was too late for the court to act to remedy the situation by allowing the amendment. 47 This claim has not been preserved for determination by this Court. Reid, 627 Pa. at 173-74 , 99 A.3d at 484 ; Baumhammers, 625 Pa. at 390 , 92 A.3d at 729-30 ; Elliott, 622 Pa. at 261 , 80 A.3d at 430 .
*423 Claim 3. Whether Mr. Mason is Entitled to a New Trial Because the Commonwealth Exercised its Peremptory Challenges in a Gender-Discriminatory Manner and Whether Prior Counsel were Ineffective for Failing to Litigate This Issue.
Appellant’s brief to this Court asserts that because the Commonwealth “used its peremptory strikes in a gender discriminatory manner to exclude women from the jury,” and “had no gender-neutral reason for striking these female prospective jurors,” Appellant’s equal protection was violated and he is entitled to a new trial. Appellant’s brief at 25 (citing J.E.B. v. Alabama, 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994)). 48 Since Appellant’s trial and direct appeal counsel did not complain of this allegedly discriminatory use of peremptory strikes, Appellant couches his allegation as an ineffectiveness claim. Id. 49
*424 Appellant did not raise this allegation in his amended PCRA petition, but included it in his “Petitioner’s Supplement and Response in Opposition to the Commonwealth’s Motion to Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed on November 10, 2003. As with Appellant’s previous issue, the Commonwealth again asserts that this allegation has been waived for failure to include it in a court approved supplement/amendment. Commonwealth’s brief at 36 (citing Reid, 627 Pa. at 173-74 , 99 A.3d at 484 ; Elliott, 622 Pa. at 261 , 80 A.3d at 430 ).
Appellant does not point to the location in the record where the PCRA court granted him permission to supplement/amend his request for post-conviction relief to include this claim of gender discrimination in the Commonwealth’s peremptory challenges. As with the prior issue he does not dispute that his request to amend his PCRA petition was never granted, and instead asserts via his February 2, 2015 reply brief that he was prevented from curing this deficiency by the PCRA court’s failure to provide proper Rule 909 notice. For the reasons expressed with regard to the previous issue, we find that this issue has not been preserved for our review.
Claim 4. Whether Appellant is Entitled to Relief from His Death Sentence Because Counsel was Ineffective at the Penalty Phase for Failing to Investigate, Develop, and Present Mitigating Evidence; Whether Appellate Counsel was Ineffective for Failing to Raise Trial Counsel’s Ineffectiveness, All in Violation of the Sixth, Eighth, and Fourteenth Amendments.
Appellant raised this issue in his January 25, 2002 amended PCRA petition, which asserted trial counsel’s ineffectiveness for failing to investigate, develop and present mitigating evidence of Appellant’s mental health impairments and history of *425 substance abuse at the penalty phase of trial, and correspondingly asserted that appellate counsel was ineffective for failing to argue trial counsel’s ineffectiveness. Amended PCRA petition filed 1/25/02 at ii-iii, 36, xi, 108.
A review of the records reveals that at the penalty phase hearing, Appellant’s trial counsel pursued mitigating circumstances under 42 Pa.C.S. § 9711(e)(2)—(4) and (8), urging the jury to find that Appellant was under the influence of extreme mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, as well as asking them to consider his age at the time of the crime and any other evidence of mitigation concerning Appellant’s character and record and the circumstances of the offense. N.T. 2/16/96 at 31-36, 40. 50 Trial counsel called witnesses in support of the mitigating circumstances, and incorporated all the evidence presented on Appellant’s behalf during the guilt phase of trial. Id.
Larry Lawhorn, Appellant’s uncle, explained to the jury that Appellant suffered from difficulties from a young age, prompting Appellant’s mother to seek educational and psychiatric help for him. Id. at 43-45. Mr. Lawhorn explained that although Appellant was a respectful person who was clearly crying out for help, “the systems failed him.” Id. at 46. Thelma Mason, Appellant’s mother, testified that Appellant had problems concentrating and suffered from learning disabilities that caused him to repeat first grade. Mrs. Mason told the jury that Appellant, along with rest of the family, underwent counseling to determine what the problem was, but Appellant continued to have trouble through elementary school into junior high school. Id. at 55-56. Appellant was eventually enrolled in school for children with learning disabilities and behavior problems, which caused the other children in his neighborhood to tease him for being different. Id. at *426 56-67. Mrs. Mason further explained that Appellant eventually started doing drugs and getting in trouble with the law, and continued to do drugs even while in court ordered treatment. Id. at 57-58. Appellant’s drug problems persisted, she told the jury, and he overdosed when he was 17 or 18, but even afterward he continued to battle addiction. Id. at 58-59. Mrs. Mason confirmed that Appellant had no self-esteem. Id. at 58-60.
In addition to calling lay witnesses to explain to the jury Appellant’s limited mental capacity and the depth of his struggles with drug addiction, trial counsel also elicited the testimony of Dr. Tepper, who testified that he met with Appellant on two occasions, with each meeting lasting between two and two and a half hours, during which time he interviewed Appellant, collected background information, and performed intellectual and personality tests. Id. at 72-73. Dr. Tepper explained that as part of his evaluation of Appellant, he interviewed Appellant’ mother, and reviewed the police reports for the crime, Appellant’s school records, and some drug and alcohol treatment records. Id. at 73. Dr. Tepper indicated that Appellant’s full scale IQ is 71, with a verbal scale score of 71 and a nonverbal scale score of 73. Id. at 74. Appellant and his mother informed Dr. Tepper that Appellant suffered from learning problems, and Appellant’s school records confirmed that Appellant had academic and behavioral problems beginning in kindergarten. Id. at 75. The personality testing, along with the interviews, suggested to Dr. Tepper that Appellant has long standing feeling of inadequacy and inferiority, low self-esteem, and difficulty expressing himself. Id. at 76. Dr. Tepper explained to the jury that such problems can cause the sufferer to turn to drugs and alcohol, and may account for the long standing report and record history of Appellant drug and alcohol issues. Id. at 76-77. Dr. Tepper explained that because Appellant cannot deal with his emotions or effectively express himself, he may resort to drugs and alcohol, and when he gets upset or angry he does not have other resources to deal with that anger in a controlled fashion. Id. at 77. Dr. Tepper further explained that because of *427 Appellant’s limited intellectual abilities and Ms low self-esteem, Appellant’s ability to deal with problems and interact with other people is already reduced, causing him to react more impulsively and angrily. Id. at 79. When Appellant is upset, agitated or intoxicated, Dr. Tepper told the jury, Appellant is even less able to maintain control. Id. at 80. Dr. Tepper was aware of Appellant’s long standing problems with drugs and alcohol, as Appellant reported to Dr. Tepper that he began experimenting with marijuana and anti-anxiety pills as a teenager, and later began using cocaine and POP. Id. at 83.
In order to convince the jury that it should find aggravating circumstances, the Commonwealth asserted that Appellant committed the killing in the perpetration of a felony, that he had a significant history of felony convictions involving the use or threat of violence, and that he knowingly created a grave risk of death to another person in addition to the victim when committing the offense. 42 Pa.C.S. § 9711 (d)(6)—(7), (9). The Commonwealth incorporated pertinent guilt phase testimony, including the testimony of the victim’s mother as to Appellant’s entry into her home and the presence of the victim’s son, and the testimony of the victim’s son as to where he was and what he observed, and also incorporated the stipulation as to Appellant’s felony convictions. N.T. 2/16/96 at 41. At the close of the penalty phase of trial, the jury found two aggravating circumstances (that Appellant killed the victim while committing a felony, and that he had a significant history of felony convictions involving the use or threat of violence), but no mitigating circumstances.
Appellant’s amended PCRA petition specifically faulted trial counsel for failing to investigate evidence of Appellant’s childhood dysfunction and abuse and his mental health deficiencies, and for failing to prepare the penalty phase witnesses to testify. Amended PCRA petition filed 1/25/02 at 37, 41, 42. Although Judge Jones did not originally grant an evidentiary hearing in this issue, See Order filed 1/19/05, he later indicated that the hearing would encompass whether trial counsel rendered ineffective assistance for failing to investigate, develop, and present evidence of Appellant’s mental *428 health treatments and history of substance abuse. N.T. 11/16/07 at 3; N.T. 11/27/07 at 10. As noted above, Judge Jones was moved to the Federal bench before he was able to conduct the evidentiary hearing, however, and Judge Sarmina took his place. When the evidentiary hearing eventually commenced on October 24, 2011, Appellant indicated to Judge Sarmina that its subject matter had been limited by Judge Jones “to the question of whether trial counsel was ineffective in failing to present ... adequate mental health testimony and background as it pertains to the mitigators E2 and E3 [that Appellant was under the influence of extreme mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired].” N.T. 10/24/11 at 6-7. 51
During the evidentiary hearing, Appellant presented expert testimony from Dr. Robert L. Sadoff, an expert in forensic psychiatry, Dr. Gerald Cooke, an expert in forensic and neu-ropsychology, Dr. Richard Restak, an expert in neurology; and Dr. Tepper, Appellant’s trial expert. Attorney Thomas Moore, Appellant’s trial counsel also testified, as did Attorney Gerald Stein, Appellant’s direct appeal counsel. Appellant presented lay testimony from his mother, his uncle, Larry Lawhorn, and his brother, Brian Mason.
Following the evidentiary hearing, the parties submitted post-hearing briefs, and oral argument occurred on February *429 13, 2012, at the conclusion of which Judge Sarmina determined that Appellant had not proven that trial counsel was ineffective for failing to adequately present mitigating evidence. Appellant then filed a supplemental post-hearing memorandum of law, and finally, a motion for reconsideration of Judge Sarmina’s February 13, 2012 denial of relief. Judge Sarmina denied reconsideration on January 3, 2013. Appellant appealed, and his Appellant’s Rule 1925(b) statement of matters complained of on appeal alerted the court that Appellant intended to assert that trial counsel rendered ineffective assistance at the penalty phase of trial for failing to investigate, develop and present mitigating evidence of Appellant’s “dysfunctional upbringing and mental health impairments and history of substance abuse, including evidence of intellectual disability, brain damage, childhood dysfunction, Dysthymia, attention-deficit/hyperactive disorder, and the psychiatric/psychological impact of drug abuse,” and that appellate counsel was ineffective for failing to pursue these claims. Pa.R.A.P. 1925(b) statement, issue 6.
In addressing these allegations, Judge Sarmina acknowledged Appellant’s insistence that trial counsel’s failure to investigate Appellant’s background prevented counsel from presenting to the jury the full extent and significance of Appellant’s history of drug abuse and his mitigating mental impairments. Pa.R.A.P. 1925(a) Opinion at 55 (citing Appellant’s Post-Hearing Brief, filed 2/6/2012 at 3). In addressing whether Appellant has proven trial counsel ineffective in this regard, Judge Sarmina considered the burden imposed upon counsel with respect to the presentation of mitigation evidence, examined the evidence that trial counsel actually presented during the evidentiary hearing, and assessed whether counsel’s course of action was unreasonable.
With regard to counsel’s course of conduct, Judge Sarmina cited the United States Supreme Court’s indication that “[cjounsel for a capital defendant has a duty to ‘conduct a thorough investigation of the defendant’s background.’ ” Id. at 56 (citing Williams v. Taylor, 529 U.S. 362, 396 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). Turning to the pronounce *430 ments of this Court, Judge Sarmina quoted the following discussion from Carson:
The key to our evaluation of counsel’s investigation is not focused on whether counsel should have presented a mitigation case or specific evidence, but rather questions whether the investigation supporting counsel’s decision not to present a particular mitigation case or evidence was reasonable. In evaluating the reasonableness of counsel’s investigation, this Court must remember that counsel’s decisions may depend heavily on the information that his client provides to him.
Rule 1925(a) opinion at 56 (citing Carson, 590 Pa. at 580, 913 A.2d at 266 (citations omitted)).
With regard to trial counsel’s performance here, Judge Sarmina concluded that Appellant has not shown that trial counsel’s course of action was unreasonable, thus Judge Sarmina opines that trial counsel did not render ineffective assistance and Appellant is not entitled to relief on this issue. To reach this conclusion, Judge Sarmina initially noted that trial counsel hired Dr. Tepper for purposes of both the guilt and penalty phases, and she acknowledges Dr. Tepper’s testimony at the evidentiary hearing that as part of his evaluation he met first with Appellant and gathered background information from him January 1995, then met and gathered background information from Appellant’s mother in February 1995. Id. (citing N.T. 10/25/11 at 95). Judge Sarmina acknowledges that following Dr. Tepper’s interview with Appellant’s mother, Dr. Tepper requested that trial counsel provide him with additional school records, mental health records, and drug treatment records. Id. (citing N.T. 10/25/11 at 100). Dr. Tepper then interviewed Appellant for a second time and administered psychological testing in March, 1995. Id. (citing N.T. 10/25/11 at 95). Judge Sarmina notes that although Dr. Tepper did not receive all the records he requested, based on the records he did receive, the testing he performed, and the information provided by Appellant and his mother, Dr. Tepper was able to testify at the penalty phase hearing that Appellant was borderline intellectually disabled, that he had long-stand *431 ing feelings of inferiority and problems with drug addiction, and that the cumulative effect of these issues compromised Appellant’s ability to exercise control over his own behavior. Id. (citing N.T. 2/16/1996 at 74-80).
Judge Sarmina notes Appellant’s current allegation that had trial counsel uncovered the records requested by Dr. Tepper, Dr. Tepper would have “recommended neurological testing, testing which ultimately revealed Mr. Mason’s organic brain damage.” Id. (citing Appellant’s Post-Hearing Brief, filed 2/6/2012 at 13). She further acknowledges Dr. Tepper’s statement during the evidentiary hearing that had he received “(1) records relevant to [Appellant’s] intellectual functioning, (2) prison records from 1992, which indicated that [Appellant] suffered head trauma, and (3) Eagleville Hospital records from 1993 regarding [Appellant’s] drug abuse[,]” he would have referred Appellant to a neuropsychologist for a neurop-sychological evaluation to look into potential or possible brain dysfunction. Id. at 56-57 (citing N.T. 10/25/2011 at 125-45).
Judge Sarmina explains, however, that she did not credit Dr. Tepper’s testimony that the receipt of such records would have persuaded him to refer Appellant to a neuropsychologist. Id. at 57. Specifically, Judge Sarmina reiterates that based on Dr. Tepper’s evaluation of Appellant, and the information he received from the records provided and the interviews conducted, Dr. Tepper did not deem it necessary to order neuropsychological testing and offered his opinion that Appellant did not exhibit any signs or symptoms indicative of an underlying major mental illness or disorder. Id. at 57 (citing N.T. 10/25/11 at 147); see also Letter from Dr. Tepper to trial counsel dated 3/28/95 at 4. Judge Sarmina opines that none of the additional records presented at the evidentiary hearing represented new information, i.e. information unknown to Dr. Tepper that would have altered the conclusion already reached. Rule 1925(a) Opinion at 57. Records which merely confirmed what Dr. Tepper already knew, could not, in Judge Sarmina’s opinion, provide a persuasive reason for Dr. Tepper to change his opinion that Appellant did not exhibit any signs or symptoms indicative of an underlying major mental illness *432 or disorder. Id. “[Although Dr. Tepper may not have had the physical records in his possession, he had already reached the conclusions to which he would have been directed by this data.” Id.
Specifically with regard to Dr. Tepper’s assertion that he would have been alerted to a possible neuropsychological problem if he had had records relevant to Appellant’s intellectual functioning and intelligence testing, Judge Sarmina concluded that the data included in the additional public school records would only have led Dr. Tepper to a conclusion that he had already reached: “that [Appellant] had been severely limited intellectually since he was a young child.” Id. at 58. In so determining, Judge Sarmina specifically found that despite Dr. Tepper’s indication that he learned from the additional public school records that Appellant had extremely low standardized test scores over a number of years that evidenced constant attention and concentration difficulties which might now be considered Attention Deficit Disorder and/or have been brain based, Dr. Tepper was already aware from his original testing and interviews that Appellant fell within the range of borderline intellectual disability, and that Appellant did so poorly in school that he repeated first grade and was placed in a school for those with learning disabilities. Id. (citing N.T. 10/25/11 at 181-132, 148-149, 156-158). 52 Because the records pertaining to Appellant’s intellectual function which trial counsel failed to provide to Dr. Tepper provided only cumulative information to that which he was already aware, the failure to provide such information does not support a finding that trial counsel rendered ineffective assistance in this regard. Id.
Neither was Judge Sarmina persuaded that trial counsel rendered ineffective assistance for failing to obtain prison records indicating that Appellant suffered some kind of head trauma. Id. at 59. Judge Sarmina points out that as part of *433 Dr. Tepper’s 1995 evaluation he had asked Appellant whether he had suffered any head injuries, but Appellant did not report any. Id. (citing N.T. 10/25/11 at 111, 177). Judge Sarmina posits that Appellant’s failure to include the 1992 incidents in the history he relayed to Dr. Tepper suggests that Appellant did not consider them to be significant. Id. Dr. Sarmina further opines that it was reasonable for Dr. Tepper and trial counsel to rely on Appellant’s representations of his history, thus Dr. Tepper did not ask trial counsel to search for records pertaining to unreported head injuries, and trial counsel cannot be faulted for failing to initiate such a search on his own. Id.
With regard to trial counsel’s failure to provide Dr. Tepper with records pertaining to drug treatment Appellant received at Eagleville Hospital in 1993, and Dr. Tepper’s subsequent claim that had he reviewed such reports he would have recommended neuropsychological testing, Judge Sarmina acknowledges Dr. Tepper’s indication that the records reflected that Appellant suffered from at least a ten year history of extensive drug use, Id. (citing N.T. 10/25/11 at 141-142), but Judge Sarmina further points out that this information was already known to Dr. Tepper as a result of the information provided by Appellant and his mother that Appellant began using cocaine and other drugs as a teenager, id. at 60 (citing N.T. 10/25/11 at 165), and that Appellant abused POP, used nerve pills, and got high every day from December 1993 through March 1994, id. (citing N.T. 10/25/11 at 165-166). As such, Judge Sarmina finds incredible the notion that Dr. Tepper would have changed his opinion if he had reviewed this additional but cumulative information regarding Appellant’s history of drug abuse. Id.
Judge Sarmina thus concludes that had Dr. Tepper been privy to the records introduced at the evidentiary hearing, Dr. Tepper would have been confronted with nearly the same information that he already had. Id. None of the information elicited during the evidentiary hearing revealed a previously unknown aspect of Appellant’s life—it merely confirmed Dr. Tepper’s prior findings to be substantially accurate and com- *434 píete—that Appellant was a borderline intellectually disabled offender, who struggled academically throughout his life and abused serious drugs dating back to his teenage years. Id. Judge Sarmina observes that based on Dr. Tepper’s accurate assessment of Appellant’s condition and addictions, Dr. Tepper had reasonably concluded that there was no need to refer Appellant for neuropsychological testing. Id. Judge Sarmina concludes that as Dr. Tepper’s analysis of Appellant was based on sufficient information, it was entirely reasonable for trial counsel to rely on Dr. Tepper’s determination that neuropsy-chological testing was unnecessary. Id. at 60 (citing Bracey, 796 A.2d at 942-43 (“[C]ounsel was not required to disregard the findings of his expert and continue to consult experts, at the expense of limited judicial resources, until he found one willing to testify that Appellant was organically brain damaged
In addition to finding that Appellant failed to prove the second prong of the Strickland/Pierce analysis, Judge Sarmina further determines that even assuming, arguendo, that trial counsels’ decision not to send Appellant for a neu-ropsychological evaluation was entirely unreasonable, Appellant still failed to demonstrate that he was prejudiced by the absence of testimony that he suffered from organic brain damage. Id. at 61 n. 30. Acknowledging the directive that to assess prejudice in the context of a claim of ineffective representation as to a penalty phase mitigation investigation, the court must “ ‘consider the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweigh it against the evidence in aggravation,’ ” Judge Sarmina notes that here, the strongest, most persuasive mitigation evidence available to Appellant was, in fact, presented during the penalty phase through Dr. Tepper’s testimony that the combination of Appellant’s low intelligence and use of drugs significantly impacted his ability to control his impulses. Id. (citing Sears v. Upton, 661 U.S. 945 , 955-56, 130 S.Ct. 3259, 3266-67 , 177 L.Ed.2d 1025 (2010); N.T. 2/16/1996 at 78-79). Judge Sarmi- *435 na suggests that the fact that the jury did not find Appellant’s lack of impulse control, borne out of drug use and low intelligence, to rise to the level of a mitigating circumstance indicates that other, less convincing evidence would not have persuaded the jurors to find a mitigating circumstance, and she reiterates that she had credited Dr. Barry Gordon’s opinion that: (1) Appellant’s ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired by his neuropsy-chological condition or substance abuse, and (2) that Appellant did not suffer from a mental or emotional disturbance so extreme that he could not control his behavior. Id. (citing N.T. 10/27/2011 at 38-39). Judge Sarmina observes that Dr. Gordon based his evaluation on the totality of Appellant’s actions at the time of the murder, and that she specifically found Dr. Gordon’s reasoning to be sound. Id. (citing N.T. 10/27/11 at 45-46).
Judge Sarmina thus concludes that the original evidence of mitigation presented during the penalty phase, and the additional evidence of mitigation presented during the post-conviction evidentiary hearing, would not have persuaded a jury to find a mitigating circumstance, thus petitioner was not prejudiced by the failure to present such evidence. Id.
Our relevant standard of review is well-settled:
In evaluating an ineffectiveness claim alleging counsel’s failure to investigate and present mitigation evidence in a capital case, “we consider a number of factors, including the reasonableness of counsel’s investigation, the mitigation evidence that was actually presented, and the additional or different mitigation evidence that could have been presented.” [Commonwealth v. Lesko, 609 Pa. 128, 187 , 15 A.3d 345, 380 (2011) ]; Commonwealth v. Collins, 585 Pa. 45 , 888 A.2d 564, 580 (2005). None of the aforementioned factors is, by itself, dispositive, because even if counsel’s investigation is deemed unreasonable, the defendant is not entitled to *436 relief unless the defendant demonstrates that prejudice resulted from counsel’s conduct. Id.
Tharp, 627 Pa. at 720 , 101 A.3d at 764 (2014). Furthermore:
Strategic choices made following a less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. []Bridges, 584 Pa. at [596], 886 A.2d [at] 1132[] (citing Commonwealth v. Fears, 575 Pa. 281 , 836 A.2d 52, 72 (2003)). Our evaluation of counsel’s performance is, however, highly deferential, and the reasonableness of counsel’s decisions cannot be based upon the distorting effects of hindsight. Id. Furthermore, “reasonableness in this context depends, in critical part, upon the information supplied by the defendant.” Bridges, 886 A.2d at 1132 (citing, Commonwealth v. Peterkin, 511 Pa. 299 , 513 A.2d 373, 383 (1986)).
Commonwealth v. Rega, 593 Pa. 659, 708 , 933 A.2d 997, 1025-26 (2007). Finally:
In making this determination, the PCRA court is “to develop a specific comparison of the mitigation case offered at trial with the credited evidence offered on post-conviction review....” Commonwealth v. Beasley, 600 Pa. 458 , 967 A.2d 376, 391 (2009); Commonwealth v. Gibson, 597 Pa. 402 , 951 A.2d 1110, 1123 (2008) (“Gibson I”) (same). In reviewing the PORA court’s determination, “we reweigh the evidence in aggravation against the totality of available mitigating evidence, which includes the evidence presented at the penalty hearing and the evidence that would have been presented had counsel conducted a proper investigation.” [Com. v. Gibson ] Gibson II [ 610 Pa. 332 ], 19 A.3d [512] at 526 [ (2011) ]; see also Lesko, 15 A.3d at 384-85 (emphasizing that Strickland prejudice in this context requires consideration of context of case, including gravity of aggravating circumstances and strength of mitigating circumstances found by jury).
Commonwealth v. Watkins, 630 Pa. 652 , 108 A.3d 692, 713 (2014) (per curiam).
*437 The reasonableness of counsel’s investigation into potentially mitigating evidence may depend upon the information provided by defendant, “and counsel cannot be deemed ineffective for not introducing information uniquely within the knowledge of the defendant and his family which is not supplied to counsel.” See Commonwealth v. Williams, 577 Pa. 473, 485 , 846 A.2d 105, 113 (2004) (citing Commonwealth v. Bond, 572 Pa. 588, 609-610 , 819 A.2d 33, 45-46 (2002)). Nor may a determination of ineffective assistance of counsel be founded upon counsel’s failure to present mitigating evidence that would have been cumulative of evidence presented at the penalty phase. Commonwealth v. Mitchell, 629 Pa. 572 , 105 A.3d 1257, 1286 (2014) (refuting merit to argument that even more details of defendant’s alcoholism would have persuaded jury to accept his diminished capacity defense).
In addition to denying relief on the grounds stated in footnote 51, supra, our comprehensive review of both the record and governing jurisprudence leads us to adopt the probing, well-reasoned opinion of Judge Sarmina discerning no merit to any of Appellant’s ineffectiveness claims. Accordingly, Appellant’s claim fails.
Claim 5. Whether Mr. Mason is Entitled to a New Sentencing Hearing Because the Trial Court Imper-missibly Curtailed the Questioning of Defense Psychologist Allan Tepper and Whether Counsel were Ineffective for Failing to Properly Litigate this Issue.
During the penalty phase of trial, Dr. Tepper testified that Appellant suffered from personality and intellectual deficits, and was asked to explain to the jury the effect those deficits, combined with Appellant’s long term drug use, would have on Appellant’s ability to control his behavior. N.T. 2/16/96 at 79. Following Dr. Tepper’s response, which indicated that Appellant’s ability to control his behavior was limited by these factors, trial counsel inquired: “Is it possible that the defendant in a situation might be able to form the specific *438 intent to kill while not being able to control his conduct?” Id. at 80. The Commonwealth objected, and Judge Jones sustained the objection. Id. Appellant now asserts before this Court that it was error to sustain the Commonwealth’s objection to this question, and further that following the objection, his trial counsel should have argued to the court that the answer would properly be before the jury because it would have been permissible evidence in support of the statutory mitigating factor of substantially impaired capacity (Section 9711(e)(3)). 53 Id. Additionally, Appellant claims, appellate counsel rendered ineffective assistance for failing to raise trial counsel’s error. Id. at 57.
As with the second and third issues raised by Appellant’s brief to this Court, Appellant did not raise this allegation in his amended PCRA petition, but instead included it in his “Petitioner’s Supplement and Response in Opposition to the Commonwealth’s Motion to Dismiss and Reply in Support of his Motion for Relief pursuant to Atkins v. Virginia,” filed on November 10, 2003. Also as with those previous issues, the Commonwealth asserts that this allegation has been waived for failure to include it in a court approved supplement/amendment. Commonwealth’s brief at 36 (citing Reid, 627 Pa. at 173-74 , 99 A.3d at 484 ; Elliott, 622 Pa. at 261 , 80 A.3d at 430 ).
Appellant does not point to the location in the record where the PCRA court granted him permission to supplement/amend his request for post-conviction relief to include this claim, and as with the prior issues he does not dispute that he did not obtain permission to amend his PCRA petition, but instead asserts via his February 2, 2015 reply brief that he was prevented from curing this deficiency by the PCRA court’s failure to provide proper Rule 909 notice. For the reasons expressed with regard to the previous issues, we find that this issue has not been preserved for our review.
*439 Claim 6. Whether the Trial Court’s Failure to Instruct the Jury that “Life Imprisonment” Means Life Without Possibility of Parole Violated Appellant’s Rights Under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Whether Trial Counsel was Ineffective for Failing to Request the Instruction and Appellate Counsel was Ineffective for Failing to Raise the Issue and Prior Counsel’s Ineffectiveness.
Appellant presented this issue in his amended PCRA petition, which argued in pertinent part that such a penalty phase instruction was required under Simmons v. South Carolina, 512 U.S. 154 , 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994), because Appellant’s future dangerousness had been put at issue by (1) the introduction during the guilt phase of trial evidence of Appellant’s prior assault on the victim and his criminal history, (2) the prosecutor’s statement during his guilt phase closing argument that the evidence showed that Appellant had “occasions of violence,” and (3) the statement in the prosecutor’s penalty phase closing argument that Appellant had a “history of violence.” Amended PCRA petition filed 1/25/02 at 59, 61 (citing N.T. 2/9/96 at 59-66, 92-99; N.T. 2/14/96 at 97, N.T. 2/16/96 at 110, 112). 54 Appellant reiterated these claims in his “Motion for Reconsideration and Supplemental Post- *440 Hearing Memorandum of Law,” which additionally argued that on cross-examination of Dr. Tepper, the prosecution elicited testimony that Appellant was “someone, who when angry, can and might respond with violence,” and asked if Appellant “might become very violent” and “respond with violence.” “Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law” filed 8/28/12 at 10-11.
Oral argument on this issue was conducted before Judge Sarmina on January 3, 2013. Judge Sarmina denied Appellant relief on the issue based on this Court’s determination in Commonwealth v. Fisher, 559 Pa. 558 , 741 A.2d 1234 (1999). N.T. 1/3/13 at 28. 55
Judge Sarmina’s Rule 1925(a) opinion addresses the three instances alleged to put Appellant’s “future dangerousness” at issue, Rule 1925(a) opinion at 36 (citing N.T. 2/14/96 at 97; 2/16/96 at 110, 112), and explains that at the time of Appellant’s trial, then-controlling law required that trial courts provide a Simmons instruction only when the defendant’s “future dangerousness” was “expressly implicated.” Id. 56
*441 Judge Sarmina opines that references to a defendant’s violent past are insufficient to expressly implicate “future dangerousness,” and unless the prosecution explicitly connected a defendant’s prior conduct with the prospect of future harm, a Simmons instruction was not implicated. Id. at 37 (citing Carson, 590 Pa. at 592, 913 A.2d at 273; Spotz, 587 Pa. at 88 , 896 A.2d at 1243 ). Here, she concludes, the references to Appellant’s violent past were insufficient to expressly implicate “future dangerousness,” thus trial counsel did not render ineffective assistance for failing to request a Simmons instruction. Id. at 37-38. Since trial counsel was not ineffective, Appellant cannot show that appellate counsel was ineffective. Id. at 38. 57
Appellant’s argument to this Court reiterates the claims raised in his Amended PCRA petition and the claim regarding Dr. Tepper’s cross-examination first asserted in his “Motion for Reconsideration and Supplemental Post-Hearing Memorandum of Law.” Appellant’s brief at 58-62. 58
The trial transcript shows that the contested testimony of Dr. Tepper was part of a larger line of the prosecution’s cross-examination which sought to impeach Dr. Tepper’s medical impression that Appellant’s difficulty with expressing his emotions played a role in his past difficulties with controlling *442 violent thoughts and impulses. Specifically, the prosecutor read from Dr. Tepper’s report containing the doctor’s opinion that Appellant’s substance abuse was part of an attempt to control his unpleasant thoughts and emotions, but he nevertheless, despite these attempts, “possesses somewhat brittle and ineffectual psychological defenses and thus under more anxiety provoking situations his underlying thoughts and impulses may come through into consciousness in a less modulated or controlled fashion.” N.T. at 86. The following testimony was then elicited:
PROSECUTION: Is that to say that if someone makes him angry he might become very violent?
WITNESS: Simplistically, yes. I mean it’s also trying to say that he might because of the—the last sentence that you did not finish with, that because of some of the underlying feelings he certainly may become either angry or more violent if he’s pushed.
PROSECUTION: I am somewhat of a simple person, so I’m going to ask you, is that another way of saying that when he becomes angry, he can respond with violence?
WITNESS: Yes.
PROSECUTION: Now, then you indicated he had trouble expressing himself at one point in time in your testimony, I’m not going to your report now, that he had tro

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9820896. Public record. Not legal advice.