Com. v. Alexander, C.

• Court: Superior Court of Pennsylvania
• Decided: January 21, 2015
• Docket: 2849 EDA 2013
• Status: Unpublished

Opinion

J-S74011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CHARLES ALEXANDER,

Appellant No. 2849 EDA 2013

Appeal from the PCRA Order Entered September 11, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1000871-1998

BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 21, 2015

Appellant, Charles Alexander, appeals from the order entered

September 11, 2013, denying his first post-conviction relief petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–

9546. Appellant raises multiple claims alleging the ineffective assistance of

trial and appellate counsel and, relatedly, that the PCRA court erred in

dismissing his PCRA petition without an evidentiary hearing. After careful

review, we affirm.

The PCRA Court summarized the facts underlying Appellant’s

conviction for first degree murder and related offenses as follows:

In July, 1997, a dispute over drug territory between Appellant's codefendant, Kareem Morefield, and Decedent, Benjamin ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S74011-14

Singleton, escalated to gunfire that ultimately led to Appellant's contract killing of … [D]ecedent on April 20, 1998 for the sum of two thousand dollars ($2,000). Decedent and Morefield were competing drug dealers with a history of animosity and violence. Morefield and his companions, Darryl Booker and Greg Robinson, were selling drugs from a house on the 2300 block of Beechwood Street, Philadelphia, PA. Morefield believed that Decedent, who sold drugs at a nearby intersection, had designs on taking over drug sales in the area. On July 22, 1997, Morefield met with Decedent on the corner near Decedent's mother's home on the 400 block of East Collum Street, Philadelphia, PA. A conversation ensued concerning threats made to Decedent by Morefield's associates, and concerning the rumors that the victim intended to take over drug trafficking. There was no resolution of the dispute and the two left the scene, Morefield entering the nearby home of one of his associate's mother, and Decedent walking around the next corner. Decedent's sister was observing from her front door and she testified that Morefield and Booker, carrying firearms[,] followed Decedent. She then heard gunshots [and] observed Decedent run[ning] back to the house screaming that he had been shot and that Morefield shot him. Decedent was shot in the leg and abdomen and was taken to the hospital[,] requiring extensive surgery and several months of treatment. Decedent was later released from the hospital and Morefield told Booker that he would finish the job he started; further stating that he wanted Decedent dead.

On April 20, 1998, [at] approximately 8:00 PM, Morefield and his associates were selling drugs from a house near 18 th and Cumberland Streets when Decedent and Appellant came in, ostensibly looking for a mutual friend. Shortly thereafter, Lamont Hill, who lived nearby[,] testified that he was in his bedroom and heard multiple gunshots from the street below. When he looked out of his window he observed two men running, enter into Appellant's gold Hyundai Excel, and the men fled. One of the males was carrying a gun. Hill went outside and found Decedent lying face down in the street in a pool of blood. Decedent had been shot nine times with nine millimeter bullets.

Robert Herring, Decedent's friend, testified that after the shooting Morefield warned him to keep quiet about the shooting. Morefield also confided to Darryl Booker that he paid the shooter two thousand dollars ($2,000) to kill Decedent. In his conversation with Booker, Morefield accurately described the

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events of the shooting and the scene of the crime. Morefield further remarked to Booker that he paid half of the shooter[’]s bail in connection with this case.

PCRA Court Opinion (PCO), 2/4/14, 2-4 (internal citations and footnotes

omitted).

Appellant’s first trial, a non-jury proceeding before the Honorable

William J. Mazzola, began on May 13, 2003. Before the trial concluded,

Judge Mazzola became ill, resulting in a three-month postponement. When

Judge Mazzola returned on September 8, 2003, he declared a mistrial, sua

sponte, due to his health problems. A second trial began on January 26,

2004, before the Honorable Renee Cardwell Hughes, at which Appellant

elected to be tried by a jury. Appellant’s second trial was held jointly with

codefendant Morefield.1

On February 4, 2004, the jury convicted Appellant (and Morefield) of

first degree murder and conspiracy. Additionally, the jury convicted

Appellant of possessing an instrument of crime. On that same day, the trial

court sentenced Appellant to a mandatory term of life imprisonment for first

degree murder, and no further penalty as to the remaining counts.

Appellant filed a direct appeal, but this Court found all of his appellate

claims waived after he failed to raise them in his Pa.R.A.P. 1925(b)

statement. See Commonwealth v. Alexander, 897 A.2d 513 (Pa. Super. ____________________________________________

1 Hereinafter, references to Appellant’s “trial” refer specifically to his second trial, and references to “the trial court” refer specifically to Judge Hughes, unless otherwise noted.

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2006) (unpublished memorandum). Appellant subsequently filed a

successful PCRA petition seeking reinstatement of his direct appellate rights

nunc pro tunc. In his second direct appeal, Appellant presented a single

question for our review. This Court rejected that claim on its merits,

affirmed Appellant’s judgment of sentence, and our Supreme Court

subsequently rejected his petition for allowance of appeal. See

Commonwealth v. Alexander, 981 A.2d 910 (Pa. Super. 2010)

(unpublished memorandum), appeal denied, 992 A.2d 885 (Pa. 2010).

On March 21, 2011, Appellant filed a timely PCRA petition.2 Counsel

was appointed, and Appellant then filed a counseled, amended PCRA petition

on October 17, 2012 (hereinafter, “the Petition”). The Commonwealth

subsequently filed a motion to dismiss the Petition without a hearing, and

Appellant filed a timely response. The PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss the Petition without a hearing on July 16,

2013. Following Appellant’s timely response on August 5, 2013, the PCRA

court entered an order dismissing the Petition on September 11, 2013. On

October 7, 2013, Appellant filed a timely notice of appeal from that order,

and filed a timely Pa.R.A.P. 1925(b) statement on November 6, 2013. The

PCRA court issued its Rule 1925(a) opinion on February 4, 2014.

Appellant now presents the following questions for our review:

____________________________________________

2 This was Appellant’s second PCRA petition, but his first following the reinstatement of his direct appellate rights.

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I. Were [both] trial counsel ineffective for failing to object to the declaration of a mistrial at Petitioner's first trial and for failing to object to the second trial as a violation of the federal and state constitutional protections against double jeopardy?

II. Did trial counsel render ineffective assistance by failing to make the correct and proper objections to the constitutionally insufficient redaction of Darryl Booker's prior recorded testimony and of the statements by non- testifying co[]defendant Morefield contained therein, and to the highly prejudicial instructions by the Court and argument by the prosecution related thereto?

III. Was trial counsel ineffective for failing to interview or call as a witness Gregory Robinson, who would have testified that the conversation between himself, Booker and Petitioner's co[]defendant Morefield — as described in Booker's prior recorded testimony — never took place?

IV. Was trial counsel ineffective for failing to make the proper objections to the admission of evidence concerning an assault upon the witness Robert Herring and the witness's belief that Petitioner procured it, where the evidence was insufficient to tie Petitioner to the occurrence, where the witness's beliefs were irrelevant given that he in fact testified favorably to the Commonwealth, and where the Commonwealth blatantly flaunted the Trial Court's in limine ruling setting limits upon said evidence?

V. Was trial counsel also ineffective for failing to request an appropriate cautionary instruction in light of the Trial Court's in limine ruling restricting the evidence concerning the assault to its relevance for Herring's state of mind?

VI. Was trial counsel ineffective for failing to use readily available impeachment evidence in his cross examination of Robert Herring and Carlton Gerald?

VII. Was trial counsel ineffective for failing to make the correct objections as bases for his motion for mistrial following the prosecutor's inflammatory closing argument to the jury?

VIII. Did direct appeal counsel render[] ineffective assistance by failing to raise the Trial Court's error in permitting the use of Darryl Booker's prior recorded testimony, where the

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Commonwealth failed to make a good faith effort to find him?

IX. For purposes of evaluating prejudice, must a court consider the cumulative effects of the various constitutional errors demonstrated?

X. Did the Court below err[] by failing to afford Petitioner an evidentiary hearing?

Appellant’s Brief, at 2-4.

Here, Appellant’s PCRA claims were denied without a hearing pursuant

to Pa.R.Crim.P. 907. Our standard of review for this matter is well-settled:

In reviewing the propriety of a PCRA court's order dismissing a PCRA petition, we are limited to determining whether the PCRA court's findings are supported by the record and whether the order in question is free of legal error. Commonwealth v. Ragan, 592 Pa. 217, 220, 923 A.2d 1169, 1170 (2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Spencer, 892 A.2d 840, 841 (Pa. Super. 2006) (citation omitted). Moreover, “[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008), appeal denied, 956 A.2d 433 (Pa. 2008) (citing Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)); Pa.R.Crim.P. 907(2). A reviewing court must examine the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001) (citation omitted).

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

Appellant asserts multiple claims of the ineffective assistance of

counsel (IAC) that occurred during various stages of his trial and direct

appeal.

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Our standard of review when faced with a claim of ineffective assistance of counsel is well settled. First, we note that counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on [the] appellant. Commonwealth v. Thomas, 783 A.2d 328, 332 (Pa. Super. 2001) (citation omitted). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007). A petitioner must show (1) that the underlying claim has merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors or omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Id. (citation omitted). The failure to prove any one of the three prongs results in the failure of petitioner's claim.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).

I.

Appellant’s first claim concerns the mistrial declared by Judge Mazzola

during Appellant’s first trial. Appellant asserts that his trial counsel during

that first trial was ineffective for failing to object to Judge Mazzola’s

declaration of a mistrial. Additionally, he claims that his attorney during his

second trial was ineffective for failing to object to the second trial as a

violation of Appellant’s state and federal double jeopardy rights. Both of

these issues turn on the question of whether Judge Mazzola’s declaration of

a mistrial was a manifest necessity.

It is within the trial judge's discretion to declare a mistrial, and, absent an abuse of that discretion, no reversal of its exercise will result. Nonetheless, a judge may declare a mistrial sua sponte only when manifestly necessary or where the ends of public justice would otherwise be defeated. Where there is

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“manifest necessity” for a trial judge to declare a mistrial sua sponte, neither the Fifth Amendment to the United States Constitution nor Article I, § 10 of the Pennsylvania Constitution will bar retrial. However, any doubt about the manifest necessity of declaring a mistrial must be resolved in the defendant's favor.

Reviewing courts use no mechanical formula in determining whether a trial court had a manifest need to declare a mistrial. Rather, “...varying and often unique situations aris[e] during the course of a criminal trial...[and] the broad discretion reserved to the trial judge in such circumstances has been consistently reiterated....” Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). Far more conversant with the factors relevant to the determination than any reviewing court can possibly be, the trial judge, who is the foremost authority in his or her courtroom, is usually best- positioned to determine the necessity of recusal in any individual case. This principle assumes great weight when the issue involves how the presentation of evidence or the conduct of parties affects a trial's fact-finder.

When judges doubt their own ability to adjudicate impartially, they should recuse themselves. Such an inability to be objective creates a manifest necessity for the declaration of a mistrial, particularly when a judge must exert the broad discretion that a bench trial demands.

Commonwealth v. Leister, 712 A.2d 332, 334-35 (Pa. Super. 1998).

Here, the PCRA court states that “Judge Mazzola indicated that he

considered all other less drastic alternatives to mistrial, but that his illness

and current medicine regimen, coupled with the passage of time that

affected his recall of the evidence and witness credibility, demanded that a

mistrial be declared.” PCO, at 5. Appellant avers that there was no

manifest necessity requiring Judge Mazzola to declare a mistrial because

neither Appellant nor his codefendant requested a mistrial, and Judge

Mazzola’s impartiality had not been called into question. Furthermore,

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Appellant argues that because the trial was substantially complete, Judge

Mazzola should have waited to see if his memory was adequately refreshed

by the notes of testimony, which had yet to be produced at the time he

declared the mistrial. Appellant contends that his first trial counsel should

have objected to the Court’s sua sponte declaration of a mistrial on any or

all of these bases.

We conclude that there could be no arguable merit to the proposed

objections. Here, Judge Mazzola was presiding over a bench trial. As such,

he was sitting in the place of a jury as the factfinder, and his recollection of

the testimony and evidence presented before the delay in proceedings was

of paramount concern affecting the fairness of the trial, regardless of his

impartiality. Appellant’s arguments would be far more compelling if Judge

Mazzola had been presiding over a jury trial because it would have been the

jury’s recall of the evidence and testimony that would be at issue, not the

judge’s.

Furthermore, Appellant has not convinced us that the notes of

testimony in these circumstances could have adequately refreshed Judge

Mazzola’s memory so as to obviate the manifest necessity justifying the

mistrial. Judge Mazzola’s recollection difficulties were not solely caused by

the passage of time. He also stated that the nature of his illness, as well as

the pharmaceuticals he was taking to treat it, had impaired his memory.

Judge Mazzola was in the best position and, perhaps, the only position, to

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adequately assess his ability to perform his duties in light of his illness and

medicinal regime.

As cited above, our review of the sua sponte declaration of a mistrial is

not mechanistic, and the trial court is imparted with “broad discretion” to

address the unique circumstances that may arise during the course of

criminal trials. Id. at 335 (quoting Somerville). Although we acknowledge

that “any doubt about the manifest necessity of declaring a mistrial must be

resolved in the defendant's favor,” Appellant has not cited any controlling

authority that would give us pause regarding whether there was a less

drastic remedy available to deal with Judge Mazzola’s predicament. Id.

Consequently, we ascertain no abuse of discretion in Judge Mazzola’s

decision to declare a mistrial and, therefore, no arguable merit to any claim

that an objection should have been lodged by counsel. Accordingly, we

conclude that the PCRA court’s determination to dismiss this claim without a

hearing was legally correct and supported by the record, because Judge

Mazzola’s sua sponte declaration of a mistrial was a manifest necessity.

We also ascertain no prejudice resulting from subsequent defense

counsel’s failure to object to Appellant’s second trial on double jeopardy

grounds. See Commonwealth v. Diehl, 615 A.2d 690, 691 (Pa. 1992)

(“Since Justice Story's 1824 opinion in United States v. Perez, 22 U.S. (9

Wheat.) 579, 580, 6 L.Ed. 165 [(1824)], it has been well settled that the

question whether under the Double Jeopardy Clause there can be a new trial

after a mistrial has been declared without the defendant's request or consent

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depends on where there is a manifest necessity for the mistrial, or the ends

of public justice would otherwise be defeated.”). Thus, we conclude that the

PCRA court’s dismissal of this claim is supported by the record and free of

legal error.

II.

Next, Appellant claims that his (second) trial attorney3 was ineffective

for failing to adequately object to both the admission, and the accompanying

cautionary instruction, of the prior recorded testimony of Darryl Booker

(“Booker’s Recorded Testimony”). More specifically, Appellant contends 1)

that Booker’s Recorded Testimony was completely inadmissible against

Appellant under Bruton v. United States, 391 U.S. 123 (1968); 2) the

redaction of references to Appellant’s name in Booker’s Recorded Testimony

as presented to the jury did not comply with the exception(s) to Bruton

provided by Richardson v. Marsh, 481 U.S. 200 (1987), and its progeny;

3) although trial counsel objected to the admission of Booker’s Recorded

Testimony, he was ineffective for not objecting to the inadequacy of the

redaction; and 4) trial counsel was also ineffective for not objecting to the

adequacy of the cautionary instruction issued by the trial court that

accompanied the admission of the redacted version of Booker’s Recorded

Testimony.

3 This and all subsequent references to Appellant’s trial counsel refer exclusively to Appellant’s attorney during his second trial.

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Booker testified at Morefield’s preliminary hearing. However, Booker

was unavailable to testify at the time of Appellant’s joint trial with Morefield,

and Appellant never had the opportunity to cross-examine Booker regarding

that testimony. Booker’s Recorded Testimony concerned his account of a

conversation he had with Morefield after the victim was killed. Morefield told

Booker that he had hired Appellant to kill the victim in exchange for $2000.

Morefield also told Booker several details about the killing that were unlikely

to be known by anyone other than the perpetrators.

Our Supreme Court summarized the applicable jurisprudence relating

to the admissibility of a codefendant's confession that implicates a defendant

at their joint trial in Commonwealth v. Brown, 925 A.2d 147 (Pa. 2007):

Included in the scope of the right guaranteed by the Sixth Amendment's Confrontation Clause is the right to cross-examine witnesses. Richardson, 481 U.S. at 206…. Generally, at a joint trial, a witness's testimony is not considered to be “ against” a defendant if an instruction is given to the jury to consider that evidence only against a co[]defendant. Id. The general presumption in the law is that juries will abide by such instructions. [Commonwealth v.] McCrae, 832 A.2d [1026,] 1037 [(Pa. 2003)]; [Commonwealth v.] Travers, 768 A.2d [845,] 847 [(Pa. 2001)]. In Bruton, however, the U.S. Supreme Court recognized that there are some instances where “the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton, 391 U.S. at 135…. The Bruton Court held that, if a nontestifying co[]defendant's confession directly and powerfully implicates the defendant in the crime, then an instruction to the jury to consider the evidence only against the co[]defendant is insufficient, essentially as a matter of law, to protect the defendant's confrontation rights. Id. at 135–37…; Gray [v. Maryland], 523 U.S. [185,] 192 [(1998)] (citing Richardson, 481 U.S. at 207…).

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Bruton, however, is not the last word from the Court concerning how to treat co[]defendant statements in joint trials. In Richardson v. Marsh, the Supreme Court held that the Confrontation Clause is not violated by the “admission of a non- testifying co[]defendant's confession with a proper limiting instruction when … the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.” 481 U.S. at 211…. This Court had previously approved of such a practice in the wake of Bruton. See Commonwealth v. Johnson, … 378 A.2d 859, 860 ([Pa.] 1977). We have also held that substituting the neutral phrase “the guy” … for the name of the defendant is an appropriate manner of redaction under Bruton. Travers, 768 A.2d at 851.

Brown, 925 A.2d at 157.

As a threshold matter, we address the Commonwealth’s assertion that

Bruton is not implicated by the admission of Booker’s Recorded Testimony.

Clearly, Morefield’s statements to Booker were inculpatory with respect to

both himself and Appellant. However, the Commonwealth argues:

Any finding of Bruton error necessarily also requires an initial determination that the Confrontation Clause applies, as determined by Crawford v. Washington, 541 U.S. 36 (2004), and subsequent decisions articulating the scope of the Confrontation Clause. Under Crawford, confrontation concerns arise only from testimonial hearsay, such as statements to police during questioning or actual testimony. Crawford[,] 541 U.S. at 51-52. Accord United States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012) ("[B]ecause Bruton is no more than a by-product of the Confrontation Clause, the Court's holdings in Davis v. Washington, 547 U.S. 813 (2006), and Crawford ... likewise limit Bruton to testimonial statements.").

Commonwealth’s Brief, at 24. Although Berrios is not controlling authority,

we find it highly persuasive in this instance, for the following reasons.

Clearly, Booker’s Recorded Testimony, per se, does not implicate

Bruton, because Booker was not a codefendant in Appellant’s trial.

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However, Appellant correctly notes that in Bruton, the testimony at issue

came from a postal worker who was not a defendant in the case, but who

had testified as to the contents of Bruton’s codefendant’s confession. Thus,

Appellant correctly argues that Booker’s status is irrelevant to our inquiry as

to the applicability of Bruton to the hearsay statement contained within

Booker’s Recorded Testimony.

Yet, Bruton itself is merely an application of the Confrontation

Clause, Bruton, 391 U.S. at 137 (“Here the introduction of [Bruton’s

codefendant’s] confession posed a substantial threat to [Bruton’s] right to

confront the witnesses against him, and this is a hazard we cannot ignore.”),

and Crawford effectively limited the application of the Confrontation Clause

claims to the admission of “testimonial” evidence. However, the Crawford

court left “for another day any effort to spell out a comprehensive definition

of ‘testimonial.’” Crawford, 541 U.S. at 68. After a series of cases

addressing the contours of the Confrontation Clause in the wake of

Crawford,4 the Supreme Court appeared to have arrived at a working

definition of “testimonial” in Michigan v. Bryant, 562 U.S. 344 (2011), but

that definition was tailored to statements that were the product of a non-

custodial police interrogation. However, just prior to Bryant, in Davis, a

4 See Davis v. Washington, 547 U.S. 813 (2006); Hammon v. Indiana, 547 U.S. 813 (2006); and Whorton v. Bockting, 549 U.S. 406 (2007).

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case also involving a police interrogation, the Supreme Court acknowledged

that statements other than those produced by a police interrogation may be

testimonial for Confrontation Clause purposes:

Our holding refers to interrogations because ... the statements in the cases presently before us are the products of interrogations—which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial.

Davis, 547 U.S. at 822 n. 1.

Our Supreme Court was confronted with the applicability of the

Confrontation Clause in a case which did not involve a police or judicial

interrogation in Commonwealth v. Allshouse, 36 A.3d 163, 167 (Pa.

2012), cert. denied sub nom., Allshouse v. Pennsylvania, 133 S.Ct. 2336

(2013) (“Allshouse II”).5 At issue in Allshouse II was whether a

statement given by an injured minor to a Children and Youth Services

(“CYS”) caseworker regarding Allshouse’s culpability, although admissible as

an exception to the hearsay rule pursuant to the Tender Years Hearsay Act,

42 Pa.C.S. § 5985.1, was nonetheless barred as violative of Allshouse’s

Confrontation Clause rights. Our Supreme Court ultimately held that the

statement was not testimonial. Applying the test espoused in Bryant, our

Supreme Court considered whether the primary purpose of the ____________________________________________

5 Commonwealth v. Allshouse, 985 A.2d 847 (Pa. 2009) (“Allshouse I”), had been vacated and remanded to our Supreme Court in light of Bryant.

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‘interrogation’ was to “to establish past events for use during a subsequent

criminal prosecution.” Allshouse II, 36 A.3d at 180. Our Supreme Court

considered all of the circumstances surrounding that interview and concluded

that it was not. Therefore, the Confrontation Clause was held not to bar

admission of the minor victim’s statement at Allshouse’s trial.6

With these precedents in mind, we agree with the Commonwealth that

the Third Circuit’s decision in Berrios accurately assesses that Bruton

claims only arise where the Confrontation Cause is implicated by the

statement sought to be precluded by Bruton. See Berrios, supra; accord

United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009) (“Because it

is premised on the Confrontation Clause, the Bruton rule, like the

Confrontation Clause itself, does not apply to nontestimonial statements.”);

United States v. Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009) (holding

that Bruton does not apply to codefendant’s nontestimonial statements);

United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir. 2008) (holding that

a statement by a codefendant to his fellow inmate was not testimonial

because he “would have had no reason to believe it would be used in a

6 Regarding another statement admitted under the tender years exception, one made by the minor victim to a doctor, our Supreme Court noted that consideration of the statement’s testimonial or nontestimonial nature under Bryant was more difficult. However, the Court avoided addressing the matter by concluding that the statement’s admission was harmless error because its content was merely cumulative of the victim’s statement to the CYS caseworker.

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judicial proceeding[;]” thus, its admission did not violate either Crawford or

Bruton).

Confessions are usually testimonial statements within the meaning of

Crawford because they are typically statements given to law enforcement

or, albeit less frequently, before judicial officers. Arguably, a “confession”

under the broadest possible definition of that term could include

nontestimonial statements (such as “I confessed my guilt to my parents,” or

“I confessed my sin to the preacher”). However, we do not believe that

“confessions” of that nature were those contemplated in Bruton, wherein

the at-issue statement was made under an interrogation while Bruton was in

custody (even though the interrogator was not a law enforcement official).

As Crawford, Davis, and Bryant imply, the types of confessions that are

addressed by the Confrontation Clause are those that are made in

anticipation of, or with the expectation of, future criminal litigation. These

are qualities that are less likely to apply to confessions made outside the

context of a criminal investigation or the judicial process, such as

confessions made in confidence to a friend, family member, or during

counseling with a religious or mental health professional. Confessions,

within the meaning of the Confrontation Clause, must be understood to

mean admissions of criminal culpability made in circumstances where the

primary purpose of the admission, or the solicitation of that admission, is to

establish past events for use during a subsequent criminal prosecution.

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There is no evidence in this case that Morefield’s statement to Booker

was a product of Booker’s ‘interrogation’ of Morefield. To the contrary, the

record tends to support the opposite conclusion: Morefield made the

statements to Booker under the impression that his admissions would be

held in confidence by Booker. Indeed, none of the attendant circumstances

present in this case suggest that Morefield intended his statements to

establish past events for use during a subsequent criminal prosecution, or

that Booker’s conversation with Morefield was undertaken by either party for

that purpose. Accordingly, we conclude that Bruton did not apply to

Morefield’s statements to Booker, because those statements were not

testimonial and, therefore, did not fall under the purview of the

Confrontation Clause. Although Booker’s Recorded Testimony itself fell

within the purview of the Confrontation Clause (because Booker was not

present to testify at trial and Appellant did not have an opportunity to cross-

examine him), it did not fall under the purview of Bruton because Booker

was not Appellant’s codefendant.

Consequently, we ascertain that the PCRA court’s dismissal of

Appellant’s Bruton-related IAC claim was supported by the record and free

of legal error. There could be no arguable merit to Appellant’s assertion that

trial counsel was ineffective for failing to adequately object under Bruton,

because the Bruton rule was inapplicable to the admission of Booker’s

Recorded Testimony. Accordingly, we do not reach the question of whether

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

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redactions of Booker’s Recorded Testimony, or to the trial court’s cautionary

instruction regarding the redacted testimony, as both of those subsidiary

claims are premised upon the applicability of Bruton.

III.

Next, Appellant contends that trial counsel failed to interview or call

Gregory Robinson to testify on Appellant’s behalf. Appellant maintains that

Robinson would have testified that the conversation between Booker and

Morefield, memorialized in Booker’s Recorded Testimony, never took place.

Appellant argues that counsel’s failure in this regard clearly prejudiced him,

because it was a foregone “opportunity to directly contradict the cold, prior

testimony of such a witness, about a series of essentially hearsay

admissions, with a live witness capable of directly denying that those

admission had even been made[.]” Appellant’s Brief, at 40 (emphasis in

original).

Appellant presents two distinct claims: first, a failure to investigate

Robinson as a potential witness; and second, the failure to call Robinson to

the stand. However, in his brief, Appellant only discusses and cites legal

authority pertaining to the second of these claims. Accordingly, we conclude

that Appellant has waived any claim that trial counsel failed to interview or

otherwise investigate Robinson as a potential witness and, thus, we confine

our consideration to counsel’s failure to call Robinson as a defense witness.

See Lackner v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006) (holding that

“arguments which are not appropriately developed are waived”);

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Commonwealth v. Figueroa, 859 A.2d 793, 800 (holding that the

appellant waived a claim by failing “to cite to pertinent authority in

developing his argument”).

To assess whether trial counsel was ineffective for his failure to call

Robinson as a witness, we apply the following standards:

To establish ineffectiveness for failure to call a witness, Appellant must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have known him; (4) the witness was prepared to cooperate and testify for Appellant at trial; and (5) the absence of the testimony prejudiced Appellant so as to deny him a fair trial. A defendant must establish prejudice by demonstrating that he was denied a fair trial because of the absence of the testimony of the proposed witness.

Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003) (quoting

Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002)).

The PCRA Court found Appellant’s claim “waived and without merit.”

PCO, at 6. The Court explained:

At trial, the court conducted a colloquy with Appellant in which he was asked if he desired to present any witnesses other than the one witness who had already presented testimony on his behalf. Appellant responded that he did not. Appellant further stated that he did not desire counsel to do anything further in this regard. Appellant cannot now claim that trial counsel rendered ineffective assistance for failing to investigate and call an additional witness, Gregory Robinson. Error was not committed.

Id. at 6.

The court’s analysis is legally deficient and unsupported by any

authorities. Appellant’s ‘desire’ to present a witness to refute Booker’s

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Recorded Testimony is not a dispositive factor in determining whether trial

counsel was ineffective for failing to call Robinson as a witness. Robinson

was present during the conversation between Booker and Morefield. He

was, therefore, a potential witness who could have undermined the

credibility of Booker’s Recorded Testimony. Appellant’s failure to recognize

the potential of Robinson’s testimony during the court’s colloquy is simply

irrelevant to the question of whether trial counsel was ineffective for failing

to call him. There is no evidence in the record of this case that Robinson’s

existence was unknown to trial counsel, or that responsibility for counsel’s

lack of knowledge regarding Robinson was due to Appellant’s failure to

disclose Robinson’s existence.

Nevertheless, we may affirm the PCRA court’s denial of Appellant’s

petition “on any legal ground, regardless of the basis upon which the [PCRA]

court relied.” Commonwealth v. Auchmuty, 799 A.2d 823, 826 n.2 (Pa.

Super. 2002). Here, we agree with the Commonwealth that Appellant’s trial

counsel cannot be ineffective for failing to refute Booker’s Recorded

Testimony because the jury was instructed not to consider that evidence

against Appellant.

“The presumption in our law is that the jury follows instructions.”

Commonwealth v. Travaglia, 661 A.2d 352, 361 (Pa. 1995) (citing

Commonwealth v. Stoltzfus, 337 A.2d 873, 879 (Pa. 1975)). Prior to the

introduction of Booker’s Recorded Testimony, the trial court issued a lengthy

cautionary instruction, which read, in part, as follows:

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This evidence is to be admissible only against Kareem Morefield. It is to be considered solely for the purpose of evidence being offered in this proceeding of the Commonwealth versus Kareem Morefield.

The prior recorded testimony is not admissible in the case of the Commonwealth versus Charles Alexander, and is not under any circumstances to be considered as evidence in the case of the Commonwealth versus Charles Alexander.

N.T., 1/30/04, at 85.

Given our presumption that the jury followed the trial court’s

instructions, we are constrained to hold that Appellant could not have been

prejudiced by the absence of Robinson’s testimony. Appellant could only

have been prejudiced by the absence of Robinson’s testimony if Booker’s

Recorded Testimony had been admitted against him. Consequently, we

conclude that no prejudice resulted from trial counsel’s failure to call

Robinson as a witness and, therefore, that he was not denied a fair trial on

that basis.

IV.

Next, Appellant complains that trial counsel was ineffective for failing

to object, and/or adequately object, to the admission of evidence concerning

an assault of a witness, Robert Herring, who had testified against Appellant

and his codefendant. The trial court permitted Herring to testify that he

believed that the assault had been motivated by his upcoming testimony

against Appellant and Morefield. However, the trial court did not permit the

admission of hearsay evidence upon which Herring’s belief was purportedly

based. Appellant argues that the trial court’s decision to exclude that

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hearsay evidence was undermined when the prosecutor allegedly elicited

from Herring the source of the hearsay statement as well as its substance.

Appellant also complains that trial counsel, who did object on hearsay

grounds, was ineffective for not also objecting on relevancy grounds.

Appellant directs our attention to the following passages from the

direct examination of Herring:

Q [A.D.A. Malone]. Okay. The people who assaulted you — and you can't talk about what they said — but did they say anything to you?

A [Herring]. Yes.

Q. Based on what they said to you before, during or after the assault, why did you believe that you were assaulted?

A. For testifying in this case.

N.T., 1/28/04, at 165.

Q. Why did you write two letters to Charles Alexander?

A. Because I got word sent after I was assaulted that they thought that I was going to really tell; beings [sic] though that they assaulted me as well.

So, you know, the barber that cuts our hair is on the same block that he was on, we was on two different blocks. The barber will come over and cut our hair. So, the barber told me, you know —

MR. SANTAGUIDA [Defense Counsel for Morefield]: Objection.

THE COURT: Sustained ….

BY MR. MALONE:

Q. Without talking about the exact words the barber used, when you had a conversation with the barber, what was you[r] intention?

A. He told me to write a letter.

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Q. Listen to what I'm saying. Don't say what the barber actually said to you —

A. Uh-huh.

Q. — but after you had that conversation, what was going through your mind? What were you planning on doing?

A. Writing — getting a letter to Charles Alexander to let him know that everything was going to be cool. And, that once I come to Court that I wasn't going to testify against him.

Id. at 169-70.

Initially, we reject Appellant’s representation of the record in this case.

We do not read the above passage as demonstrating that the

Commonwealth intentionally elicited the excluded statements. During the

direct examination of Herring, but prior to the above testimony, there was

an objection lodged by Appellant’s trial counsel when the prosecutor began

to broach the subject of what occurred just prior to when Herring was

assaulted in prison. Id. at 138. A discussion ensued in the judge’s

chambers. Id. at 138-63. The statement that the prosecutor wished to

elicit from Herring was that, just prior to the assault, the three assailants

asked Herring, “Do you know Boo? You don’t know him? Oh, we heard you

do.” Id. at 140.7 The trial court determined that these statements were

inadmissible hearsay. There is nothing within the above-quoted portions of

Herring’s testimony that demonstrates that the prosecutor was attempting

to circumvent the court’s ruling. To the contrary, it appears that the

7 “Boo” was a nickname or alias used by Morefield.

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prosecutor was making every effort to steer Herring away from revealing the

excluded statement, as well as from any similar statement by the prison

barber. Thus, Appellant’s claim that trial counsel should have done more to

object to the prosecutor’s alleged circumventing of the trial court’s ruling is

without merit.

Appellant also argues that trial counsel was ineffective for only

objecting on hearsay grounds to this portion of Herring’s testimony. He

contends that counsel should have also objected on relevancy grounds.

Herring’s belief that Appellant was responsible for the assault was admitted

as probative of Herring’s state of mind when he wrote two letters to

Appellant. In those letters, Herring indicated to Appellant that he did not

intend to testify against him. Because those letters were favorable to

Appellant as impeachment evidence concerning Herring’s trial testimony, the

Commonwealth wanted to demonstrate that Herring had an alternative

purpose for writing them other than the truth of their contents. Under this

theory, the trial court admitted evidence of Herring’s belief that he had been

assaulted because of his planned testimony in this case. Appellant argues

that any reference to the assault should have been excluded as irrelevant,

and that trial counsel should have objected on that basis. He believes that

the only relevant evidence of Herring’s state of mind was whether the

Commonwealth had threatened Herring in order to convince him to ‘flip’ in

favor of the Commonwealth, as Herring’s prior statements and testimony

had been favorable to Appellant.

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We disagree. The PCRA court found the evidence admitted by the trial

court to be both relevant and admissible. Appellant fails to cite to any

authority that would suggest that, when admitting state of mind evidence to

explain such a ‘flip,’ the only relevant evidence is that pertaining to how the

party who ultimately secured favorable testimony from a witness may have

influenced that witness. Indeed, such a proposition is unreasonable and

self-serving. Appellant’s trial counsel attacked the credibility of Herring,

particularly with respect to his motivations for writing the two letters to

Appellant. N.T., 1/27/04, at 108-09. Appellant can hardly complain that his

counsel should have objected to the admission of state of mind evidence on

relevancy grounds, where the issue of Herring’s motivations for writing the

letters to Appellant and testifying for the Commonwealth was brought into

play by the defense’s strategy.

In Commonwealth v. Carr, 259 A.2d 165, 167 (Pa. 1969), our

Supreme Court acknowledged that “[t]hreats by third persons against public

officers or witnesses are not relevant unless it is shown that the defendant is

linked in some way to the making of the threats.” However, that rule

concerns the use of such threats as substantive evidence of guilt; threats

may be admissible for another purpose, such as to explain the motivation for

a prior inconsistent statement. Id. Here, the defense brought into question

Herring’s prior inconsistent statement, rendering relevant the threats that

induced that statement. Thus, Appellant’s trial counsel could not have

objected on relevancy grounds, as there is no arguable merit to that claim.

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Accordingly, we conclude that that the PCRA court’s order denying the

claim(s) pertaining to this aspect of Herring’s testimony was supported by

the record and free of legal error.

Appellant’s fifth claim also concerns Herring’s testimony regarding his

belief that the assault had been prompted in anticipation of his upcoming

testimony against Appellant and Morefield. Appellant argues that trial

counsel was ineffective for failing to request a cautionary instruction

indicating that Herring’s testimony regarding the assault was limited in

purpose to establishing his state of mind, and that it should not be

considered by the jury as substantive evidence of Appellant’s consciousness

of guilt.

“Evidence of a defendant's prior bad acts is generally inadmissible, and

where such evidence is admitted, a defendant is entitled to a jury instruction

that the evidence is admissible only for a limited purpose.”

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002). However,

“[w]here evidence of a defendant's prior bad acts is merely a fleeting or

vague reference, … trial counsel might reasonably decline to object or

request a limiting instruction to avoid drawing attention to a reference that

might have gone relatively unnoticed by the jury.” Id. at 561-62.

Because the PCRA court did not hold an evidentiary hearing, we cannot

ascertain whether Appellant’s trial counsel had a reasonable basis for not

requesting such an instruction. The PCRA court concluded that there was no

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merit to this claim, reasoning that while there was evidence of an assault, as

well as Herring’s belief that the assault was related to his involvement in this

case, there was no evidence admitted that Appellant had ordered or

participated in the assault.

We cannot agree with the PCRA court regarding the arguable merit of

this IAC claim. By permitting evidence of the assault, and Herring’s belief of

its cause, the trial court risked allowing the jury to infer that Herring had

been assaulted at the behest of Appellant or Morefield. Consequently, a

cautionary instruction should have been requested by trial counsel and

granted by the trial court. Nevertheless, we agree with the Commonwealth

that, despite trial counsel’s failure in this regard, his ineffectiveness was not

sufficiently prejudicial so as to warrant relief because there is no reasonable

probability that the outcome of Appellant’s trial would have been different

had trial counsel requested and been granted a limiting instruction.

First, as noted in our discussion of Appellant’s preceding claim, the

door to evidence concerning Herring’s state of mind in making prior

inconsistent statements was opened by the defense. Second, substantive

evidence of Appellant’s consciousness of guilt had already been properly

admitted without objection. Herring had already testified that Appellant had

threatened to harm him if he did not keep his mouth closed regarding the

murder. N.T., 1/28/04, at 106. Thus, even if the jury made the inference

that Appellant and/or Morefield were culpable for the assault, such

inferential evidence would have been cumulative of similar evidence that

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was properly admitted. Third, the jury did not hear any direct evidence

concerning the assault on Herring that would indicate that Appellant or his

codefendant had ordered it. Given these circumstances, we conclude that it

would be extremely unlikely that the jury would have reached a different

result had they been given a cautionary instruction accompanying Herring’s

testimony regarding his assault. Accordingly, we conclude that Appellant is

not entitled to relief on this claim.

VI.

Next, Appellant claims trial counsel was ineffective for not utilizing

available impeachment material during the cross-examination of Herring and

another witness, Carlton Gerald. Specifically, Appellant complains that trial

counsel failed to use impeachment material used by Appellant’s previous

attorney during the first trial, and that the cross-examination of both

witnesses was markedly less effective as a result. Appellant argues that trial

counsel was ineffective for not impeaching Herring’s testimony with evidence

of his three attempted murder charges, and for not impeaching Gerald’s

testimony with his armed robbery and drug convictions.

Regarding Herring, the PCRA court found that the attempted murder

charges were no longer pending against him at Appellant’s second trial, as

they had been withdrawn on February 28, 2003. Thus, the court concluded

that “[e]vidence of those charges was therefore inadmissible and could not

be used to impeach Herring. See[] Commonwealth v. Chmiel, 889 A.2d

501 (Pa. 2005).” PCO, at 8. We agree.

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In Chmiel, our Supreme Court reaffirmed that “the veracity of a

witness may not be impeached by prior arrests which have not led to

convictions.” Chmiel, 889 A.2d at 534. Appellant argues, however, that

this same evidence was permitted during his first trial because “the

Commonwealth was free to reinstitute the charges at any time.” Appellant’s

Brief at 47. This argument is unpersuasive, as it is not accompanied by

citation to any controlling authority suggesting that such evidence is

admissible. Moreover, it is not at all clear that the first trial court was

correct in permitting the admission of such evidence; indeed, it appears that

such impeachment evidence should not have been admitted, as the charges

in question were withdrawn before the first trial. It is illogical to suggest

that otherwise inadmissible evidence should be permitted at a second trial

simply because such evidence was erroneously admitted at the first.

Regarding Gerald, the PCRA court determined that Appellant was not

prejudiced by counsel’s failure to impeach. The court explains:

Gerald testified at the first trial and gave police a signed statement wherein he stated that Morefield offered two thousand dollars ($2,000) for … killing [the Decedent]. He also stated that Booker, Robinson, and Morefield sold drugs together … and that Appellant usually carried a 9 mm pistol and .45 caliber gun. When Gerald testified at the second trial he recanted his prior statements and testimony. He testified that he made up the information or that it was a rumor he heard.

PCO, at 8.

Thus, the PCRA court concluded that Appellant could not demonstrate

prejudice where the testimony he contends should have been impeached by

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trial counsel “was actually helpful to the defense….” Id. We agree.

Furthermore, Appellant fails to offer any argument addressing the specific

basis on which this claim was rejected by the PCRA court. Accordingly, we

conclude that the PCRA court’s dismissal of these impeachment-based IAC

claims was supported by the record and free of legal error.

VII.

In Appellant’s seventh claim, he asserts that trial counsel was

ineffective for failing to adequately object to comments made by the

prosecutor during the Commonwealth’s closing argument, and that if the

appropriate objections had been made, a mistrial would have been granted.

Appellant alleges that the prosecutor “blatantly attempted to divert the jury

from proper consideration of the evidence as to who in fact committed the

murder, and invited its decision based instead on raw emotion and the

nature of the killing.” Appellant’s Brief, at 50. In support of this claim,

Appellant directs our attention to numerous portions of the prosecutor’s

closing remarks. He also claims that cumulative prejudice of these remarks

undermined his right to a fair trial. We disagree.

The Commonwealth is entitled to comment during closing arguments on matters that might otherwise be objectionable or even outright misconduct, where such comments constitute fair response to matters raised by the defense, or where they are merely responsive to actual evidence admitted during a trial. See Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243, 249 (2000) (plurality opinion) (“A remark by a prosecutor, otherwise improper, may be appropriate if it is in fair response to the argument and comment of defense counsel.”) (citing United States v. Robinson, 485 U.S. 25, 31, 108 S.Ct. 864, 99

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L.Ed.2d 23 (1988)); Commonwealth v. Marrero, 546 Pa. 596, 687 A.2d 1102, 1109 (1996). Furthermore, “prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.” Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491, 514 (1995).

Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012).

We have reviewed all of the remarks highlighted by Appellant, and we

conclude, like the PCRA court, that there was no prosecutorial misconduct

during the Commonwealth’s closing argument. For instance, regarding

Appellant’s assertion that the prosecutor’s comments concerning a “higher

power” were improper, we note that defense counsel arguably breached the

topic during his closing argument by contending that only a “higher judge”

knew the truth of what happened. N.T., 2/3/04, at 191-92. Nevertheless,

Appellant contends the prosecutor “perverted” defense counsel’s remarks.

Yet, read as a whole, there was nothing improper about the prosecutor’s

comments, regardless of whether they constituted fair response to the

defense’s closing argument. The prosecutor did not invoke a higher power,

but instead instructed the jury to ignore such concerns. The prosecutor

summarized his retort to the defense’s purported invocation of a higher

power by stating: “So don’t wait for God to help. This is about earth and

this planet and what we call justice on this planet while we are here.” N.T.,

2/3/04, at 210. There is nothing improper about these remarks. Indeed,

these remarks properly directed the jury away from considering religious

motivations in reaching their verdict.

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Appellant also complains that the prosecutor “falsely suggest[ed] that

venire persons had been excused for cause out of fear of retaliation for

serving on the jury.” Appellant’s Brief at 52. We disagree. The passage in

question8 does nothing more than highlight a sad reality that there is often a ____________________________________________

8 This aspect of Appellant’s argument concerns the following portions of the prosecutor’s closing:

Do you remember when we were in a bigger group, when it was forty or sixty of you, when you first came in here? Judge Hughes asked a question: Is there anything about the nature of these charges that would make you unable to sit and fairly listen to the evidence in this case? A lot of your colleagues, a lot of your brothers and sisters, raised their cards up. Why did they do that? Why wouldn't they want to be sitting right here in front of the — in front of them and doing a job? Why not? Why did people put their cards up? The same reason that people get cold feet when they have to sit here, when they have to point at them, when they have to talk on the record, and when they have to look at all these people, the same reason.

So remember, Ladies and Gentlemen, you guys are numbers. I mean, I'm talking to you and you are human beings and you are the ones that are going to decide this case, but ultimately, you are numbers. You are juror number one. You are juror number two, three, four, up the list. The lawyers are instructed to destroy your names. You don't have to give your addresses. You only had to give neighborhoods where you live. Do you remember that? Not Robert Herring, not Carlton Gerald. ....

N.T., 2/3/04, at 251-52.

Imagine you had a 16 year-old son, and your 16 year-old son comes home and tells you that he just saw a murder, that he knows the guy who did it, and he's a ruthless drug dealer. He knows the guy who died. What would you do? What would you do? Would you march him on down to the police station and (Footnote Continued Next Page)

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reluctance among the citizenry to get involved in the criminal process, even

for jurors who remain relatively anonymous when compared to witnesses.

This was a clear effort to contextualize the fears that prompted witnesses

like Herring and Gerald to vacillate between positions favoring and

disfavoring the Commonwealth’s theory of the case, witnesses whose

credibility was of significant importance. The prosecutor never stated that

potential jurors had actually been dismissed in this case due to a specific

fear of retaliation. We view these comments as permissible oratorical flair.

In any event, trial counsel did object to some of the comments made

by the prosecutor, and he requested a mistrial on that basis. Appellant

contends that more objections should have been made, with better

reasoning, and that if such objections had been made, a mistrial would have

been granted. We disagree. We have not identified any clear prosecutorial

error in the portions of the Commonwealth’s closing argument cited by

Appellant. All of the statements highlighted by Appellant were either

unobjectionable, oratorical flair, or fair response to arguments made by the

defense. Accordingly, the PCRA court’s dismissal of this claim was supported

by the record and free of legal error. _______________________ (Footnote Continued)

say: All right, Johnny, tell the detectives what you know. Put yourself in this homicide case now. Let's — let them put your name down. Let them put your address down. Would you do it? Maybe some of you would. I don't know.

Id. at 255-56.

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VIII.

Appellant’s next claim concerns the performance of his direct appeal

counsel, who he claims was ineffective for failing to challenge on appeal the

admission of Booker’s Recorded Testimony over objections that the

Commonwealth failed to make a good faith effort to find him. That issue

had been preserved by trial counsel, but abandoned by (both) appellate

counsel.

Appellant alleges:

In this case, the Commonwealth [only] made cursory efforts to locate Booker at the time of the bench trial before Judge Mazzola, but then suspended all efforts until two days prior to Petitioner’s second trial, when detectives again began to look for Booker and his mother at a number of different addresses and locations, during daytime hours only, omitting to check the known address of Booker’s girlfriend.

Appellant’s Brief, at 55-56.

“Where the Commonwealth seeks to admit a missing witness's prior

recorded testimony, a ‘good faith’ effort to locate the witness must be

established.” Commonwealth v. Wayne, 720 A.2d 456, 467 (Pa. 1998)

(quoting Commonwealth v. Jackson, 344 A.2d 842 (Pa. 1975)). “What

constitutes a ‘good faith’ effort is a matter left to the discretion of the trial

court.” Id.

Here, Police Officer Broderick Mason testified that he checked multiple

locations where Booker had previously been known to live and frequent, and

did so on multiple occasions. N.T., 1/29/04, at 12-20. Officer Mason knew

Booker since 1990. Id. at 13. He said he checked all the locations where

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he knew Booker had resided or where he “hung out ….” Id. Booker’s

brother was contacted and instructed to encourage Booker to contact the

police or the district attorney. Id. at 18. Based on information regarding

the whereabouts of Booker’s mother, received from Booker’s brother, Officer

Mason then visited where the brother had indicated Booker’s mother was

staying. Id. However, he could not locate her there or any information

about her living at that location from the property manager. Id. at 18-19.

Separate searches had been conducted in anticipation of the first trial. Id.

at 21. However, Officer Mason did not begin looking for Booker again until a

few days before the second trial, a few months short of a year from the end

of the first trial. Id. at 21-22.

Police Officer Michael Rocks also testified that he made efforts to

locate Booker beginning a week before the second trial began. Id. at 32.

Officer Rocks looked for Booker at no less than seven different locations on

multiple occasions. Id. at 33-35. Officer Rocks inquired if the people he

encountered knew Booker, but was unsuccessful in those efforts. Id. at 34.

Officer Rocks spent several hours at some locations where Booker was

known to frequent but was unable to locate him. Id. at 36-37. These

efforts continued until the day before the second trial. Id. at 37.

Based on the testimony of Officers Mason and Rocks, we ascertain no

abuse of discretion in the trial court’s conclusion that the Commonwealth

undertook a good faith effort to secure Booker’s presence at Appellant’s

second trial. Thus, there is no arguable merit to the assertion of direct

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appeal counsel’s ineffectiveness. Consequently, we agree with the PCRA

court’s determination that Appellant was not prejudiced by his direct appeal

counsel’s failure to challenge whether the Commonwealth made a good faith

effort to locate Booker, as that determination is supported by the record and

free of legal error.

IX.

In Appellant’s ninth claim, he contends that the cumulative prejudice

of prior counsels’ ineffectiveness dictate that a new trial is warranted. We

disagree. We have disposed of all but one of Appellant’s IAC claims by

either holding that there was no arguable merit to the underlying legal issue

or that there was no prejudice resulting from the (in)actions of counsel.

Only with respect to Appellant’s fifth claim did we ascertain that some

degree of prejudice resulted from counsel’s ineffective action; nevertheless,

therein we concluded that there was no reasonable probability that the

outcome of Appellant’s trial would have been different had counsel acted

effectively. Accordingly, there is no cumulative prejudice for this Court to

consider and, therefore, Appellant’s cumulative prejudice claim lacks merit.

See Commonwealth v. Sneed, 45 A.3d 1096, 1117 (Pa. 2012) (holding

that “where claims are rejected for lack of arguable merit, there is no basis

for an accumulation claim[,]” and, similarly, that there is no basis for an

accumulation claim where individual claims have been disposed of for an

absence of prejudice).

X.

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In Appellant’s final issue, he contends that the PCRA court erred by

dismissing his claims without a hearing.

Under Pennsylvania Rule of Criminal Procedure 909, the PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied “that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings.” Pa.R.Crim.P. 909(B)(2). “[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.” Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004).

Sneed, 45 A.3d at 1105-06.

Appellant has not alleged any genuine issues of material fact that, if

resolved in his favor, would entitle him to relief. Accordingly, we ascertain

no abuse of discretion in the PCRA court’s dismissal of Appellant’s petition

without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/21/2015

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