Com. v. Anderson, B.
Opinion
J-S25014-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
BRIAN K. ANDERSON :
:
Appellant : No. 1866 EDA 2024
Appeal from the PCRA Order Entered June 18, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005632-2011
BEFORE: PANELLA, P.J.E., DUBOW, J., and BENDER, P.J.E.
MEMORANDUM BY PANELLA, P.J.E.: FILED SEPTEMBER 4, 2025
Brian K. Anderson appeals from the order dismissing his petition filed
pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Anderson asserts the PCRA court erred in finding prior counsel was not
ineffective. After careful review, we affirm on the basis of the well-reasoned
opinion of the PCRA court.
In its opinion, the PCRA court fully and correctly sets forth the relevant
factual and procedural history. We, therefore, have no reason to restate them
at length here. Briefly, on April 19, 2011, Anderson hit the victim, Toby Gale,
Jr., twice in the head with a hammer. Anderson later told police he hit Gale
once in the head with the hammer because he believed Gale was reaching for
a firearm and was about to rob him. Anderson, with the assistance of co-
defendant Donier White, then wrapped Gale in trash bags, sealed them with
J-S25014-25
duct tape and dumped Gale’s body. The Commonwealth’s medical expert
testified at trial that Gale was still alive when Anderson and White wrapped
him in trash bags and duct tape. Anderson was charged, inter alia, with
murder of the first degree, murder of the third degree, possessing instruments
of crime, abuse of corpse, and tampering with or fabricating physical
evidence.1
Anderson proceeded to trial, held jointly with co-defendant White.
Anderson argued to the jury that he was not guilty of first-degree murder
because he acted in self-defense. Anderson did not testify, and counsel relied
on Anderson’s statement to police that he believed Gale was reaching for a
firearm and about to rob him. The Commonwealth sought to discredit
Anderson’s statement through multiple means.
The jury convicted Anderson of murder of the first degree, possessing
instruments of crime, abuse of corpse, and tampering with or fabricating
physical evidence.2 The trial court sentenced Anderson to an aggregate life
imprisonment without parole and an additional 1-2 years’ incarceration.
Anderson appealed and this Court affirmed his judgment of sentence on
November 26, 2013. Anderson did not file a petition for allowance of appeal
with our Supreme Court. However, Anderson did file a timely PCRA petition
____________________________________________
1 18 Pa.C.S.A. §§ 2502(a), 2502(c), 907(a), 5510, 4910, respectively.
2 18 Pa.C.S.A. §§ 2502(a), 907(a), 5510, 4910, respectively.
J-S25014-25
on January 22, 2014, alleging, inter alia, appellate counsel was ineffective for
failing to file a petition for allowance of appeal. On May 22, 2015, the PCRA
court granted the petition and reinstated Anderson’s right to file a petition
with our Supreme Court nunc pro tunc.
Anderson filed his petition for allowance of appeal, and our Supreme
Court denied that petition on December 8, 2015. Anderson filed the instant
PCRA petition on March 6, 2016.3 Counsel was appointed and numerous
requests for additional time to review Anderson’s case file were granted.
Ultimately, a counseled amended PCRA petition was filed on August 31, 2022.
A hearing was held on November 8, 2023, where trial and appellate counsel
testified to their respective stewardship of the case. On June 18, 2024, the
PCRA court dismissed Anderson’s PCRA petition. Anderson timely appealed
and complied with the PCRA court’s order to file a Rule 1925(b) statement.
See Pa.R.A.P. 1925(b).
Anderson raises four issues for our review:
1. Whether the PCRA court erred in finding [Anderson’s] trial counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in allowing Juror #4 to be seated, as the juror was openly biased against [Anderson] based on the
____________________________________________
3 We note the instant PCRA petition is a timely, first PCRA petition filed after
Anderson’s appeal nunc pro tunc rendered his judgment of sentence final. See Commonwealth v. O’Bidos, 849 A.2d 243, 252 n.3 (Pa. Super. 2004) (noting “the one-year [PCRA] time clock will not begin to run until [an] appeal nunc pro tunc renders [a] judgment of sentence final.”) (italics and citation omitted).
J-S25014-25
nature of the case, and in ruling that trial counsel’s error was not prejudicial?
2. Whether the PCRA [c]ourt erred in finding that [Anderson’s] trial counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in failing to object to the closing argument of the prosecutor, during which the prosecutor argued that the statement of co-defendant Donier White, redacted to replace any reference to [] Anderson by name, proved [] Anderson’s guilt of [f]irst [d]egree [m]urder?
3. Whether the PCRA [c]ourt erred in finding that [Anderson’s] trial counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in failing to object to prejudicial and inflammatory remarks made by the prosecutor during closing argument, in which the prosecutor referred to [Anderson’s] statement to police as lies, purported to cross examine [Anderson’s] statement as if [Anderson] had actually testified and offered that [Anderson’s] statement should be used to “line the cat box[,”] where counsel had no reasonable basis to forego an objection to the remarks, and [Anderson] was prejudiced in that the remarks of the prosecutor were of such a nature as to form in the minds of the jurors a fixed bias against [Anderson]?
4. Whether the PCRA [c]ourt erred in finding [Anderson’s] direct appeal counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in failing to raise on direct appeal trial court error in admitting the testimony of Ratika Cruz that, prior to the homicide, [Anderson] uttered a threat of violence directed at no specific person, where Cruz’[s] testimony was inadmissible because it did not connect to the homicide, and, as evidence of a prior bad act was highly prejudicial and its admission not harmless as the Pennsylvania Superior Court cited the testimony as tending to prove malice required for [f]irst [d]egree [m]urder?
Appellant’s Brief, at 4-5.
All four of Anderson’s claims challenge the dismissal of his PCRA petition.
Our Supreme Court has instructed:
J-S25014-25
When reviewing the denial of PCRA relief, we must determine whether the PCRA court’s factual findings are supported by the record, and whether its conclusions of law are free from legal error. Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party. Although we are bound by credibility determinations, we apply a de novo standard of review to legal conclusions.
Commonwealth v. Clancy, 192 A.3d 44, 63 (Pa. 2018) (italics and citations
omitted).
The PCRA court’s opinion methodically details the law and facts
surrounding ineffective assistance of counsel and each individual claim
Anderson raised. We therefore see no reason to restate them here.
After a thorough review of the record, briefs of the parties, applicable
law, and comprehensive opinion of the Honorable Kevin F. Kelly dated
December 23, 2024, we conclude there is no merit to Anderson’s claims. See
PCRA Court Opinion, 12/23/24, at 17-45 (finding (1) Anderson failed to prove
he was prejudiced by the seating of juror number 4, juror number 4
presumably followed the court’s legal instructions, and Anderson presented no
evidence to the contrary; (2) the prosecutor did not commit a Bruton4
Free access — add to your briefcase to read the full text and ask questions with AI
J-S25014-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
BRIAN K. ANDERSON :
:
Appellant : No. 1866 EDA 2024
Appeal from the PCRA Order Entered June 18, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005632-2011
BEFORE: PANELLA, P.J.E., DUBOW, J., and BENDER, P.J.E.
MEMORANDUM BY PANELLA, P.J.E.: FILED SEPTEMBER 4, 2025
Brian K. Anderson appeals from the order dismissing his petition filed
pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Anderson asserts the PCRA court erred in finding prior counsel was not
ineffective. After careful review, we affirm on the basis of the well-reasoned
opinion of the PCRA court.
In its opinion, the PCRA court fully and correctly sets forth the relevant
factual and procedural history. We, therefore, have no reason to restate them
at length here. Briefly, on April 19, 2011, Anderson hit the victim, Toby Gale,
Jr., twice in the head with a hammer. Anderson later told police he hit Gale
once in the head with the hammer because he believed Gale was reaching for
a firearm and was about to rob him. Anderson, with the assistance of co-
defendant Donier White, then wrapped Gale in trash bags, sealed them with
J-S25014-25
duct tape and dumped Gale’s body. The Commonwealth’s medical expert
testified at trial that Gale was still alive when Anderson and White wrapped
him in trash bags and duct tape. Anderson was charged, inter alia, with
murder of the first degree, murder of the third degree, possessing instruments
of crime, abuse of corpse, and tampering with or fabricating physical
evidence.1
Anderson proceeded to trial, held jointly with co-defendant White.
Anderson argued to the jury that he was not guilty of first-degree murder
because he acted in self-defense. Anderson did not testify, and counsel relied
on Anderson’s statement to police that he believed Gale was reaching for a
firearm and about to rob him. The Commonwealth sought to discredit
Anderson’s statement through multiple means.
The jury convicted Anderson of murder of the first degree, possessing
instruments of crime, abuse of corpse, and tampering with or fabricating
physical evidence.2 The trial court sentenced Anderson to an aggregate life
imprisonment without parole and an additional 1-2 years’ incarceration.
Anderson appealed and this Court affirmed his judgment of sentence on
November 26, 2013. Anderson did not file a petition for allowance of appeal
with our Supreme Court. However, Anderson did file a timely PCRA petition
____________________________________________
1 18 Pa.C.S.A. §§ 2502(a), 2502(c), 907(a), 5510, 4910, respectively.
2 18 Pa.C.S.A. §§ 2502(a), 907(a), 5510, 4910, respectively.
J-S25014-25
on January 22, 2014, alleging, inter alia, appellate counsel was ineffective for
failing to file a petition for allowance of appeal. On May 22, 2015, the PCRA
court granted the petition and reinstated Anderson’s right to file a petition
with our Supreme Court nunc pro tunc.
Anderson filed his petition for allowance of appeal, and our Supreme
Court denied that petition on December 8, 2015. Anderson filed the instant
PCRA petition on March 6, 2016.3 Counsel was appointed and numerous
requests for additional time to review Anderson’s case file were granted.
Ultimately, a counseled amended PCRA petition was filed on August 31, 2022.
A hearing was held on November 8, 2023, where trial and appellate counsel
testified to their respective stewardship of the case. On June 18, 2024, the
PCRA court dismissed Anderson’s PCRA petition. Anderson timely appealed
and complied with the PCRA court’s order to file a Rule 1925(b) statement.
See Pa.R.A.P. 1925(b).
Anderson raises four issues for our review:
1. Whether the PCRA court erred in finding [Anderson’s] trial counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in allowing Juror #4 to be seated, as the juror was openly biased against [Anderson] based on the
____________________________________________
3 We note the instant PCRA petition is a timely, first PCRA petition filed after
Anderson’s appeal nunc pro tunc rendered his judgment of sentence final. See Commonwealth v. O’Bidos, 849 A.2d 243, 252 n.3 (Pa. Super. 2004) (noting “the one-year [PCRA] time clock will not begin to run until [an] appeal nunc pro tunc renders [a] judgment of sentence final.”) (italics and citation omitted).
J-S25014-25
nature of the case, and in ruling that trial counsel’s error was not prejudicial?
2. Whether the PCRA [c]ourt erred in finding that [Anderson’s] trial counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in failing to object to the closing argument of the prosecutor, during which the prosecutor argued that the statement of co-defendant Donier White, redacted to replace any reference to [] Anderson by name, proved [] Anderson’s guilt of [f]irst [d]egree [m]urder?
3. Whether the PCRA [c]ourt erred in finding that [Anderson’s] trial counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in failing to object to prejudicial and inflammatory remarks made by the prosecutor during closing argument, in which the prosecutor referred to [Anderson’s] statement to police as lies, purported to cross examine [Anderson’s] statement as if [Anderson] had actually testified and offered that [Anderson’s] statement should be used to “line the cat box[,”] where counsel had no reasonable basis to forego an objection to the remarks, and [Anderson] was prejudiced in that the remarks of the prosecutor were of such a nature as to form in the minds of the jurors a fixed bias against [Anderson]?
4. Whether the PCRA [c]ourt erred in finding [Anderson’s] direct appeal counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in failing to raise on direct appeal trial court error in admitting the testimony of Ratika Cruz that, prior to the homicide, [Anderson] uttered a threat of violence directed at no specific person, where Cruz’[s] testimony was inadmissible because it did not connect to the homicide, and, as evidence of a prior bad act was highly prejudicial and its admission not harmless as the Pennsylvania Superior Court cited the testimony as tending to prove malice required for [f]irst [d]egree [m]urder?
Appellant’s Brief, at 4-5.
All four of Anderson’s claims challenge the dismissal of his PCRA petition.
Our Supreme Court has instructed:
J-S25014-25
When reviewing the denial of PCRA relief, we must determine whether the PCRA court’s factual findings are supported by the record, and whether its conclusions of law are free from legal error. Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party. Although we are bound by credibility determinations, we apply a de novo standard of review to legal conclusions.
Commonwealth v. Clancy, 192 A.3d 44, 63 (Pa. 2018) (italics and citations
omitted).
The PCRA court’s opinion methodically details the law and facts
surrounding ineffective assistance of counsel and each individual claim
Anderson raised. We therefore see no reason to restate them here.
After a thorough review of the record, briefs of the parties, applicable
law, and comprehensive opinion of the Honorable Kevin F. Kelly dated
December 23, 2024, we conclude there is no merit to Anderson’s claims. See
PCRA Court Opinion, 12/23/24, at 17-45 (finding (1) Anderson failed to prove
he was prejudiced by the seating of juror number 4, juror number 4
presumably followed the court’s legal instructions, and Anderson presented no
evidence to the contrary; (2) the prosecutor did not commit a Bruton4
violation in his closing as he only referred to the co-defendant’s statement and
the physical/forensic evidence and did not identify Anderson as the other guy
named in co-defendant’s statement, therefore trial counsel was not ineffective
because there was no basis for him to object to the prosecutor’s closing
____________________________________________
4 Bruton v. U.S., 391 U.S. 123 (1968).
J-S25014-25
statement; (3) trial counsel had a reasonable basis not to object to the
prosecution’s closing where he argued Anderson’s statement was all lies
because trial counsel did not want to draw attention to it, further, this claim
does not have arguable merit as the prosecutor was simply arguing in
response to Anderson’s closing argument where he told the jury to believe his
statement to police; and (4) appellate counsel was not ineffective for failing
to appeal the admission of Cruz’s testimony because, even if in error, it was
harmless due to the significant amount of medical and forensic evidence
establishing Anderson’s guilt).
For the convenience of the parties, we have attached the cogent and
thorough 47-page opinion of the Honorable Kevin F. Kelly dated December 23,
2024.
Order affirmed.
Date: 9/4/2025
Circulated O /14/2025 11.23 AM Circulated 08/14/2025
12_0pinion
11:23 AM
Dated 12-23-202.
2_Opinion Dated 12-23-202.
THE THE COURT COURT OF OF COMMON
COMMON PLEAS
PLEAS OF
OF DELAWARE
DELA WARE COUNTY,
COUNTY, PENNSYLVANIA
PENNSYLVANIA
CRIMINAL CRIMINAL
COMMONWEALTH COMMONWEALTH OF OF PENNSYLVANIA
PENNSYLVANIA : NO.
NO. 5632-11
5632-11
v. v. ·r·;
i ■■■ : n
5
pt /I
BRIAN BRIAN KEITH KEITH ANDERSON +
ANDERSON Superior Court No.:1866 EDA2024\ Court No.1866EDA2024
Superior .·-.. c CO
i
Michael J.J. Flowers, Michael Flowers, Esquire Esquire--Assistant
Assistant District
District Attorney
Attorney for
for the Commonwealth
the Commonwealth
William P. Wismer, Esquire - Attorney for Brian Anderson William P. Wismer, Esquire -- Attorney for Brian Anderson I : - .: .
OPINION OPINION
Kelly, Kelly,J.J. Date: December Date: December23,
23,2024
2024
i I.I. Introduction Introduction
BrianKeith Brian KeithAnderson, Anderson,(hereinafter
(hereinafterreferred
referredtotoasas“the
"theDefendant”
Defendant"oror“Defendant
"DefendantAndersonp
Anderso '
hasfiled has fileda atimely, timely,counseled
counselednotice
noticeofofappeal fromthis appealfrom court'sJune thiscourt’s June18,
18,2024,
2024,Order
OrderDismissing
Dismissi
PCRAPetition PCRA PetitionAfter AfterEvidentiary
EvidentiaryHearing PursuanttotoPa.R.Crim.P.
HearingPursuant Pa.R.Crim.P.908. SeeAmended 908. See AmendedPetition Petitionfol-
ReliefUnder Underthe thePennsylvania Post-ConvictionCollateral PennsylvaniaPost-Conviction CollateralRelief ReliefAct 1
Act1(hereafter "PCRA")docket (hereafter“PCRA”) docket3d Relief
ononAugust 31,2022;
August31, 2022;PCRA PCRAevidentiary
evidentiaryhearing
hearingononNovember
November8,8,2023,
2023,N.T.
N.T. 11/8/23,
11/8/23,pp. 1- 'il;
pp.1-G;
PCRADismissal PCRA DismissalOrder Orderdated
datedJune
June18,
18,2024;
2024;Notice
NoticeofofAppeal filedJuly Appealfiled July12,
12,2024;
2024;and
andSuper
SuperJr r
Court CourtNo.
No.1866 1866EDA
EDA2024;
2024;and
andrelated
relatedresponsive
responsivefilings.
filings.
I
Forthe For thereasons reasonsdetailed
detailedinfra, thePCRA infra, the PCRAclaims
claimsfor
forrelief
reliefadvanced
advancedby Defend Jit
Anderson'scounseled, Anderson’s counseled,Amended AmendedPCRA
PCRAPetition,
Petition,upon
upona areview
reviewofofthe
therelevant
relevantrecord
recorddoes
doesnot
support supporta agrant grantofof
PCRA
PCRArelief.
relief.
II. II. Case
CaseHistory
Historv
This This case case commenced
commenced on
on April
April 23,
23, 2011,
2011, with
with the
the filing
filing of
of aa criminal
criminal complaint
complaint by
b
Detectives DetectivesJames JamesE.E.Nolan,
Nolan,IV,
IV,Chester
ChesterCity
CityPolice
PoliceDepartment,
Department,and
andMichael
MichaelJay,
Jay,Delaware
DelawareCounty
Coun
Criminal Criminal Investigation InvestigationDivision,
Division, inter
interalia,
alia, charging
charging Defendant
DefendantAnderson
Andersonwith
withmurder
murderof
ofthe
thefirst
fir t
degree; degree;2 murder murder of
of the
the third
third degree; 3 possessing degree;' possessing instruments instruments of
of crime; 4 abuse
crime;" abuse of
of corpse;
corpse;55 an
anI
6
tamperingwith tampering with ororfabricating fabricatingphysical evidence.6 physical evidence.
On On September September28,
28, 201 1, aapreliminary
2011, preliminary hearing hearingwas
washeld
heldbefore
beforethe
themagisterial
magisterialdistrict
districtcourt.
co
At At the the conclusion conclusion of
ofthe
the preliminary
preliminary hearing’s
hearing's presentation
presentation of
ofevidence,
evidence, the
the presiding
presiding magisterial
magisteri
district district judge judge found
found the
the prosecution
prosecution had
had established
established prima
primafacia
facia all
all prosecuted
prosecuted offenses.
offenses. N.V
N.
9/28/11, 9/28/11, pp.
pp. 5-6,
5-6, 75-77.
75-77. See
See also
also listed
listed offenses
offenses supra.
supra.
Before Before the the trial
trial court
court on
on October
October 27,
27, 2011,
2011, the
the Defendant
Defendant was
was formally
formally arraigned
arraigned atat which
whi /
time time the the Office Office of
of the
the District
District Attorney
Attorney of
of Delaware
Delaware County
County lodged
lodged against
against him
him aa criminal
crimi
information information averring, averring, inter
inter alia,
alia, the
the above-referenced
above-referenced crimes.
crimes. (Count
(Count 11 —- Murder
Murder of
of the
the First
Fi s
Degree; Degree; Count Count 22-
- Murder
Murder of
ofthe
the Third
Third Degree;
Degree; Count
Count 44
- Possessing
Possessing Instruments
Instruments of
ofCrime;
Crime; Count
Co
66 --Abuse Abuse of of Corpse;
Corpse; and
and Count
Count 77-
- Tampering
Tampering with
with or
or Fabricating
Fabricating Physical
Physical Evidence.)
Evidence.) TTi
e
Commonwealth Commonwealth as as well
well filed
filed aa Notice
Notice of
of Proposed
Proposed Joinder
Joinder Under
Under Pennsylvania
Pennsylvania Rule
Rule of
of CriminEl
Crim·
Procedure Procedure 582
White White (No.
582 of
of its
its intent
(No. 5625-11).
intent to
5625-11). See
to collectively
collectively try
See Pa.R.Crim.P.
Pa.R.Crim.P. 582.
try the
582. See
the Defendant,
See also
Defendant, along
along with
also Commonwealth
with his
his Co-Defendant,
Commonwealth v.v. White,
Co-Defendant, Don
White, No.
No. 5625-11.
Don er
5625-11. Ihee
r
Office Office of of the the Public
Public Defender
Defender of
of Delaware
Delaware County
County having
having determined
determined that
that the
the Defendant
Defendant qualif
qualifleed
ld
for its professional services, and the court having concluded that a conflict of interest existed in intt lat
office’s office's representation representation of
of Defendant
Defendant Anderson,
Anderson, by
by order
order of
of December
December 1,1, 2011,
2011, Scott
Scott D.
D. Galloway,
Galloway
Esquire Esquire was was appointed
appointed his
his counsel.
counsel. See
See Order
Order dated
dated December
December 1,1, 201 1.
2011.
At At trial,
trial, the
the prosecution
prosecution proceeded
proceeded only
only on
on the
the following
following charges:
charges: Count
Count 11Murder
- Murder of
of th;
th
First First Degree;
Degree;77 Count
Count 22-
- Murder
Murder of
ofthe
the Third
Third Degree;
Degree;88 Count
Count 44 -- Possessing
Possessing Instruments
Instruments of
ofCrime:
Crime 9
Count Count 66 -Abuse Abuse of
of Corpse;
Corpse;"10 and
and Count
Count 77 -- Tampering
Tampering with
with or
or Fabricating
Fabricating Physical
Physical Evidence,
Evidence,"!
11
withdrawing, withdrawing, of-record, of-record, the
the balance
balance of
of past
past filed
filed criminal
criminal information’s
information's counts
counts the
the day
day prior
prior to
to jury
j
selection. selection. N.T.
N.T. 5/10/12
5/10/12 (Robing
(Robing Room
Room Conference),
Conference), pp.
pp. 3-4.
3-4.
After Afterjury
jury selection
selection on
on May
May 11, 2012,
11, 2012, the
the Defendant’s
Defendant's jury
jury trial
trial commenced
commenced before
before this
this court
co
on on May May 14, 14, 2012,
2012, continued
continued over
over the
the next
next two
two (2)
(2) days
days (May
(May 15,
15, 2012,
2012, and
and May
May 16,
16, 2012),
2012), ard
concluded concluded the the following
following day,
day, May
May 17,
17, 2012.
2012. As
As to
to all
all prosecuted
prosecuted charges,
charges, count
count 11-
- murder
murder of
oftthe
- I first first degree;
degree;'12 count
count 44 -- possessing
possessing instruments
instruments of
of crime;
crime;'13 count
count 66 -- abuse
abuse of
of corpse,
corpse,"14 and
and count 7
count'7
-- tampering tampering with with or
or fabricating
fabricating physical
physical evidence,
evidence,'5the
1 the jury
jury found
found Defendant
Defendant Anderson
Anderson guilty
guilty.. N.
N. f.
5/17/12, 5/17/12, pp.
pp. 113-27.
113-27. See
See Jury
Jury Verdict.
Verdict.
By By virtue
virtue of
of the
the jury
jury having
having found
found Defendant
Defendant Anderson
Anderson guilty
guilty of
of count
count 11-
- murder
murder of
oftt re
first first degree, degree, per
per the
the court’s
court's final
final instructions,
instructions, it
it did
did not
not render
render aa verdict
verdict otherwise
otherwise on
on the
the lesser
!es l
degrees degrees of of homicide,
homicide, murder
murder of
of the
the third
third degree,
degree,'16 and
and voluntary
voluntary manslaughter.
manslaughter.'17 See
See Pa.SSJI
Pa.S
(Crim) (Crim) 15.2501B.
15.2501B. Although
Although not
not aa charge
charge levied
levied by
by the
the Commonwealth,
Commonwealth, the
the crime
crime of
of voluntary
volunt
manslaughter manslaughter was was at
at trial
trial counsel’s
counsels request
request submitted
submitted for
for decision
decision to
to the
the jury,
jury, absent
abs
Commonwealth Commonwealth objection.
objection. N.T.
N.T. 5/16/12,
5/16/12, pp.
pp. 192-93,
192-93, 203-05,
203-05, 207-08,
207-08, 216-17;
216-17; and
and N.T.
N.T. 5/17/
5/17/ LA,'
pp. pp. 67-69, 67-69, 73-74, 73-74, 76-82.
76-82. See
See also
also Jury
Jury Verdict.
Verdict.
A sentencing hearing was held on July 26, 2012. Defendant Anderson was sentenced by thi A sentencing hearing was held on July 26, 2012. Defendant Anderson was sentenced by this court pursuant to the applicable statute to a term of incarceration at a state correctional institutio court pursuant to the applicable statute to a term of incarceration at a state correctional insMon of life without parole on count 1 - first degree murder;' three (3) to sixty (60) months under co of life without parole on count 1 - first degree murder;" three (3) to sixty (60) months under count 4-possessing instruments of crime;" one (1) to twenty-four (24) months per count 7 - tamperin one (1) to twenty-four (24) months per count 7 - tampering 4 - possessing instruments of crime;
with or fabricating physical evidence; and one (1) to two (2) years on count 6 - abuse of corpse.
21
with or fabricating physical evidence- and one (1) to two (2) years on count 6 - abuse of corpse.
See 18 Pa.C.S. §1102(a). The sentences of count 4 -- possessing instruments of crimeand count See 18 Pa.C.S. §1 102(a). The sentences of count 4 - possessing instruments ofcrime- and count J - tampering with or fabricating physical evidence23 were directed to be served concurrent to eac directed to be served concurrent to eac i - tampering with or fabricating physical evidence 23 were other, .as well as concurrent with the sentence imposed under count 1- first degree murder, 24 ■, 24 whilewhi e
other,. as well as concurrent with the sentence imposed under count 1 first degree murder, the sentence of count 6 -abuse of corpse25 was imposed consecutive to count 1 - first degr the sentence of count 6 - abuse of corpse- was imposed consecutive to count 1 - first degr e murder.26 Thus, the aggregate sentence was life imprisonment without parole followed by one ( life imprisonment without parole followed by one (1 )
murder. 26 Thus, the aggregate sentence was through two (2) years additional incarceration. N.T. 7/26/12,i, pp. 32-40. See also Certificate 32-40. See also Certificate of through two (2) years additional incarceration. N.T. 7/26/12, PP Imposition of Judgment of Sentence. Imposition of Judgment of Sentence.
Following sentencing, Jordan Kelleher Reilly, Esquire assumed stewardship of t j v iicsUnr Peillv Esauire assumed stewardship of the Following sentencing, Jordan Kelleher Reilly, Esquire Defendant's interests. Through Ms. Reilly, Defendant Anderson timely lodged on August 3, 201 + , ah Ms Reillv Defendant Anderson timely lodged on August 3, 20 12
Defendant’s interests. Through Ms. Keiny, post-sentence motions challenging each of his convictions and seeking an arrest of judgme each of his convictions and seeking an arrest of judgment, post-sentence motions challenging judgment of acquittal, and/or the granting of a new trial. See Defendant's Post-Sentence Motio» trial. See Defendant’s Post-Sentence Motions, %
judgment of acquittal, and/or the granting of anew Paragraphs I and II. See generally Pa.R.Crim.P. 720. Paragraphs I and II. See generally Pa.R.Crim.P. 720.
At the resulting hearing on November 16, 2012, defense counsel, with the Defendan 's At fire resulting hearing on November 16, 2012, defense counsel, wtth the Defen an.
agreement,advancedof-record, agreement, advanced of-record,ininopen opencourt,
court,ananoral
oralapplication
applicationtotodiscontinue discontinuethese
thesepost-senteilae
post-sente ce
motions. Upon the court's conducting a colloquy of-record regarding the withdrawal of the p motions. Upon the court’ s conducting a colloquy of-record regarding the withdrawal of the pos - sentence sentencemotions, motions,m/er
interu//n,
alia,Defendant
DefendantAnderson
Andersonacknowledged
acknowledgedthat
thathehewas
wascompletely
completelyaware
awareml
appreciated appreciatedthe theconsequences
consequencesofofsuch
suchactions
actionsand
andknowingly,
knowingly,intelligently
intelligentlyasaswell
wellasasvoluntarily
voluntarilywas
ininagreement agreementwith withthe
thediscontinuation
discontinuationofof thesepost-sentence these motions.The post-sentencemotions. Thecourt courtrelatedly directe relatedlydirected
thatthe that thepost-sentence post-sentencemotions
motionswere
weretotobebenoted
notedof-record
of-recordasaswithdrawn
withdrawnper
perananorder
orderdated
date
November16,16,2012. November 2012.See Orderdated SeeOrder datedNovember
November16,16,2012.
2012.
TheDefendant The Defendantforwarded
forwardeda aletter
lettertotochambers
chambersononDecember
December10,
10,2012,
2012,inter
interalia,
alia,requesting
requestin
thatthe that thecourt courtappoint
appointananattorney
attorneytotoassist
assisthim
himpursue
pursuea adirect
directappeal. Defendant'sLetter.
SeeDefendant’s
appeal. See Letter. A
resultinghearing resulting hearingwas washeld
heldononDecember
December13,
13,2012,
2012,and
andwith
withDefendant
DefendantAnderson
Anderson's agreement,the
s agreement, t
courtappointed court Ms.Reilly appointedMs. Reillyasasappellate counselrecognizing appellatecounsel recognizingher herpast
pastinvolvement
involvementatatbar
barafforded
afford
herananunderstanding her understandingofofthe thecase
casenot
notenjoyed
enjoyedbybyother
otherlawyers.
lawyers.
TheDefendant The Defendanton
onDecember
December 14,
14,2012,
2012,timely
timelyfiled
filed a acounseled
counselednotice
noticeofofappeal
appealtotothe
t
Superior Courtof SuperiorCourt ofPennsylvania fromthis Pennsylvaniafrom thiscourt’s court'ssentencing
sentencingjudgment
judgmentmade
madefinal
finalvia
viaits
itsorder
orderof
November 16, November 16, 2012, memorializing of-record, 2012, memorializing of-record, asas withdrawn, withdrawn, the
the Defendant’s
Defendant's post-sentence post-senten
motions. See motions. Noticeof SeeNotice ofAppeal datedDecember Appealdated December14,
14,2012.
2012. See
Seealso SuperiorCourt
alsoSuperior CourtNo.
No.3459
3459EDA
E
2012. 2012.
By order dated By order dated January
January 3,3, 2013,
2013, the
the court
court directed
directed Defendant
Defendant Attorney’s
Attorney's attorney
attorney file
file of-
record aaConcise record Concise Statement Statement of
ofMatters
Matters Complained ofon Complained of onAppeal.
Appeal. See Pa.R.A.P. 1925(b).
See Pa.R.A.P. 1925(b). See See also
a
Order dated Order dated January January 3,3, 2013.
2013.
On or On or about
about January 2013, Ms.
January 9,9, 2013, Ms. Reilly filed of-record Reilly filed of-record aa Petition Petition for
for Leave
Leave to
to Withdrew.
Withdr
Petition dated See Petition See dated January 2013. A January 9,9, 2013. A hearing hearing regarding
regarding this
this withdrawal
withdrawal petition
petition was
was held
held on
a
January January 22, 22, 2013, before this
2013, before this court.
court. Absent
Absent opposition, the court opposition, the court permitted pennitted Ms.
Ms. Reilly
Reilly to
to step
step as
• c.e
and and appointed Andrew Goldberg, appointed Andrew Goldberg, Esquire Esquire to assume stewardship to assume stewardship of
ofthe
the Defendant’s
Defendant's interests
interests at
at jar L
by order of by order of that that same
same date
date (January 22, 2013).
(January 22, 2013). See Petition and See Petition and Order
Order dated
dated January
January 22,
22, 2013.
2013.
Mr. Goldberg given his most recent appointment understandably sought additional time t Mr. Goldberg given his most recent appointment understandably sought additional time to identify and raise the Defendant's appellate challenges through his lodging of a Petition fo identify and raise the Defendant’s appellate challenges through his lodging of a Petition for Extension of Time to File l 925(b) Statement of Matters. See Extension Petition dated January 3 , Extension of Time to File 1925(b) Statement of Matters. See Extension Petition dated January 3C, 2013. Per order of January 30, 2013, without Commonwealth objection, the court granted th 2013. Per order of January 30, 2013, without Commonwealth objection, the court granted the Defendant's extension application and directed defense counsel to file of-record and serve on t · s Defendant’s extension application and directed defense counsel to file of-record and serve on this court a statement of errors for appellate review no later than sixty ( 60) days subsequent.
court a statement of errors for appellate reviewno later than sixty (60) days subsequent. See Order dated January 30, 2013. See generally Pa.R.A.P. 1925(b). dated January 30, 2013. See generally Pa.R.A.P. 1925(b).
Defense counsel timely lodged on March 12, 2013, a statement of matters complained of Defense counsel timely lodged on March 12, 2013, a statement of matters complained of on appeal. See Statement of Matters Complained dated March 12, 2013. See generally Pa.R.A. appeal. See Statement of Matters Complained dated March 12, 2013. See generally Pa.R.A.P.
1925(b). This error assignment statement raised the sole error assignment that the trial eviden 1925(b). This error assignment statement raised the sole error assignment that the trial evidence while sufficient to prove voluntary manslaughter,27 was as a matter of law insufficient to sustain t while sufficient to prove voluntary manslaughter?’ was as a matter of law insufficient to sustain tie
l
Defendant's first degree murder,28 conviction. See Statement of Matters Complained dated Mar Defendant’s first degree murder,” conviction. See Statement of Matters Complained dated Mar h 12, 2013. 12, 2013.
This court lodged of-record on or about June 26, 2013, its required opinion. See Pa.R.A This court lodged of-record on or about June 26, 2013, its required opinion. See Pa.R.A.P.
1925(a). See also Trial Court Opinion dated June 26, 2013. For a comprehensive recitation oft 1925(a). See also Trial Court Opinion dated June 26, 2013. For a comprehensive recitation of the evidence presented at trial, this court references and incorporates its 1925(a) direct appeal opini evidence presented at trial, this court references and incorporates its 1925(a) direct appeal opinion. See Id, pp. 11-56. See Id., pp. 11-56.
The Superior Court by its opinion dated November 26, 2013, found the totality of the t · 1 The Superior Court by its opmion dated November 26, 2013, found the totality of the 1 , record was legally sufficient to sustain the Defendant's first degree murder conviction d record was legally sufficient to sustain the Defendant’s first degree murde^’ conviction ok affirmed his sentencing judgment. See Superior Court No. 3459 EDA 2012 - Opinion, p. 6, affirmed his sentencing judgment. See Superior Court No. 3459 EDA 2012 - Opinion, p. 6, C A.3d 67 (Pa.Super. 2013)(Table), 2013 WL 11250364 (text) A.3d 67 (Pa.Super. 2013)(Table), 2013 WL 11250364 (text)
From the Superior Court's affirming the Defendant's judgment of sentence, defense counse From the Superior Court's affirming the Defendant's judgment of sentence, defense counse. did not lodge with the Pennsylvania Supreme Court a Petition for Allowance of Appeal.
■ l u n Ivania Sunreme Court a Petition for Allowance of Appeal.
The Defendant on or about January 22, 2014, lodged prose a Motion for Post Convictio , t oo 9014 lodged pro se a Motion for Post Conviction The Defendant on or about January 22, 2014, lodged pro Collateral Relief. See Defendant's Motion dated January 22, 2014. By this collateral filin , j t no 0014 Bv this collateral filing, Collateral Relief. See Defendant's Motion dated January , ■ Defendant Anderson averred the ineffective assistance of counsel in that his appellate attorney faile ective assistance of counsel in that his appellate attorney tatleo to file an allowance of appeal petition with the Pennsylvania Supreme Court, despite the Defendant'
with the Pennsylvania Supreme Court, despite the Defendant!
to file an allowance of appeal petition repeated direction that such on his behalf be done. See Defendant's Motion dated January 22,201 .
.. See Defendant’s Motion dated January 22, 2014 .
repeated direction that such on his behalf be done Consistent with his request for an attorney's assistance, Stephen D. Molineux, Esquire vi Consistent with his revest for an attorney's assistance, Stephen D. Molineux, E squire v
court order dated January 24, 2014, was appointed stewardship of Defendant Anderson's interest .
court order dated January 24, 2014, was appointed stewardship of Defendant Anderson's mterestd See generally Commonwealth v. Luckett, 700 A.2d 1014, 1016 (Pa.Super. 1997). See al Ifh v Luckett 700 A.2d 1014, 1016 (Pa.Super. 1997). See also See generally Commonwealth v. Luckett, Commonwealth v. Perez, 799 A.2d 848, 851-52 (Pa.Super. 2002) citing Commonwealth v. Guthri , CommonWeM V. Perez, W A.2d 848, 851-52 ( Pa.Super. 2002) citing Commonwealth v. Gut 4, 749 A.2d 502, 504 (Pa.Super. 2000); Commonwealth v. Ferguson, 722 A.2d 177, 179 (Pa.Sup 749 A 2d 502, 504 (Pa.Super. 2000); Commonwealth v. Ferguson, 722 A.2d 177, 179 (Pa.SupA 1998); Commonwealth v. Hampton, 718 A.2d 1250, 1252-53 (Pa.Super. 1998); and Commonweal
19 98);—
v. Romas, 14 A.3d 894, 895-96 (Pa.Super. 2011). See also Motion dated January 22, 2014, p. 7.
v. Romas, 14 A.3d 894, 895-96 (Pa.Super. 2011). See also Motion dated January 22, 2014, p. 7.
After requesting and being granted several such extension applications, collateral counste ■ 4 heina granted several such extension applications, collateral counil After requesting and being g filed on or about April 17, 2015, an amended PCRA petition. See Amended Petition dated Ap · , , PCRA petition. See Amended Petition dated April filed on or about April 17, 2015, an amended PCRA petmon 11 17, 2015. See also Orders dated October 15, 2014; -
February 6, 2015; and March 24, 2015. Throu it 001 5- and March 24, 2015. Through 17 2015 See also Orders dated October 15, 2014; February 6, 2015, and M J this amended collateral pleading, the Defendant's lawyer similar to the original prose PCRA moti this amended collateral pleadmg, the Defendant’s lawy er simrlar to the original Prose PCRA mo । asserted the ineffectiveness of direct appeal counsel in that an allowance of appeal petition was .sertedthemelfe— lodged with the Supreme Court of Pennsylvania contrary to that which the Defendant tim .. .... ~ - - •“ ~j directed. See Amended Petition dated April 17, 2015 -- Paragraph Nos. 10-17. Per the amen „ s„ „„ p— - " । '
petition, petition, thethe defense defense attorney
attorney sought
sought reinstatement
reinstatement ofof
thethe Defendant's
Defendant’s right to to
right pursue a direct a direct
pursue appea.
appea
through through thiscourt this court permitting permitting thethe lodging lodging with
with thethe Pennsylvania
Pennsylvania Supreme Court Court
Supreme ofof a mnunc
a nunc pro tun
protunc
petition petition forforallowance allowanceofof
appeal. SeeAmended
appeal.See Amended Petition Petition dated
dated April 2015.
April17,17,2015.
AAhearing hearingregarding
regardingthetheDefendant’s Defendant'sPCRA
PCRApleadings washeld
pleadingswas heldononMay 21,2015, May21, befor
2015,before
thiscourt. this court.The TheDefendant
Defendanthaving
havingbeen
beenmade
madeaware
awareofof
hishisright
righttotobebephysically
physicallypresent
presentknowingly,
knowing!
intelligently,and intelligently, andvoluntarily waivedthe voluntarilywaived thesame sameand
andononthe
theadvice
adviceand
andconsent
consentofofhishislawyer
lawyeragreed
agree
totoappear appearand andparticipate
participatefor
forpurposes
purposesofofthis
thisproceeding
proceedingvia
viavideo
videoconferencing fromSCI conferencingfrom S
Huntingdon. Seegenerally Huntingdon. See generallyPa.R.Crim.P.
Pa.R.Crim.P.119(A)(7).
119(A)(7).
TheOffice The Officeofofthe theDelaware
DelawareCounty
CountyDistrict
DistrictAttorney
Attorneyacknowledged of-recordatatthe acknowledgedof-record thehearing hearin
thePCRA
regardingthe regarding PCRApleadings thatitithad pleadingsthat hadconfirmed confirmedwith
withhis
hisdirect
directappellate
appellateattorney Defenda attorneyDefendant
Andersondid Anderson didininfact factmake
maketimely
timelyknown
knowntotohim
himthat
thatininthe
theevent
eventthe
theSuperior
SuperiorCourt
Courtaffirmed
affirmedtie
t
judgmentatatbar
sentencingjudgment sentencing barananallowance allowanceofofappeal petitionwas appealpetition wastotobebelodged lodgedwith
withthe
thePennsylvan
Pennsylv a
Supreme Court. Supreme Court.
Thecourt The courton onMay 22,2015,
May22, 2015,entered
enteredan
anorder
ordergranting theDefendant’s grantingthe Defendant'samended amendedpetition
petitionar c.
reinstated nuncpro reinstatednunc tunethe protunc theDefendant’s
Defendant'sright
righttotoseek
seekwith
withthe
theSupreme
SupremeCourt
Courtof
ofPennsylvania
Pennsylvaniaiin
allowanceof allowance ofappeal. SeeOrder appeal. See Orderdated
datedMay
May22,
22,2015.
2015.
Contemporaneous with his Contemporaneous with his filing filing of
of the
the amended
amended collateral
collateral petition
petition then
then pending,
pending, N i.
Molineuxas Molineux aswell well lodged anApplication lodgedan forAppointment Applicationfor ofDirect Appointmentof DirectAppeal Appeal Counsel
Counsel and
andWithdrawal
Withdra
ofAppearance of ofPCRA Appearance of PCRA Counsel. See Withdrawal Counsel. See Withdrawal Application. See Application Application. See Application dated dated April
April b,
2015. 2015.
By separate order also of May 22, 2015, the court, absent opposition, granted PC , kn nf Mav 22 2015 the court, absent opposition, granted PCRA By separate order also oi May zz, zvij, counsel's application to withdraw and for purposes of the Defendant pursuing before th counsel’s application to withdraw and for purposes of the Defendant pursm g Pennsylvania Supreme Court an allowance of Nusrat J. Esquir .
petitionpetition
Pennsylvania Supreme Court an allowance of appeal appeal Nusrat J. Rashid,Rashid, appointed
appointed Esquire.
See Order dated May 22, 2015.
See Order dated May 22, 2015.
On July 2, 2015, Attorney Rashid lodged a Petition for Allowance of Appeal with th on July 2, 2015, Attorney Rashid lodged a Petition for Allowance of Appeal with thb Pennsylvania Supreme Court. See Supreme Court No. 509 MAL 2015 - Petition for Allowance „ M AT 2015 - Petition for Allowance c f Pennsylvania Supreme Court. See Supreme Court No. 509 MAL Appeal.
Appeal.
The Pennsylvania Supreme Court on December 8, 2015, entered an order denying t e The Pennsylvania Supreme Court on December 8, 2015, entered an order denying the Defendant's allowance of appeal petition. See Supreme Court No. 509 MAL 2015 -- Order dat Defendant’s allowance of appeal petition. See Supreme Court No. 509 MAL 2015 - Order dat^d December 8, 2015; 634 Pa. 740, 130 A.3d 1285 (2015)(Table).
December 8, 2015; 634 Pa. 740, 130 A.3d 1285 (2015)(Table).
The Defendant's counsel then fil The Defendant’s counsel then fild<| on December 18, 2015, an Application for Reconsideration of Denial of Petition for Allowance on December 18, 2015, an Application for Reconsideration of Denial of Petition for Allowance | Appeal. See Supreme Court No. 509 MAL 2015 -- Application for Reconsideration of Denial Appeal, See Supreme Court No. 509 MAL 2015 - Application for Reconsideration of Dema Petition for Petitionfor Allowance Allowance of Appeal.
of Appeal. TheThe Supreme Supreme Court
Court of Pennsylvania of Pennsylvania by order by order dated
dated January
January 2|1 2
2016, denied this application for reconsideration. See Supreme Court No. 509 MAL 2015 -- Ord Court No. 509 MAL 2015 -Ords-
2016, denied this application for reconsideration. See Supreme dated January 21, 2016.
dated January 21, 2016.
Attorney Rashid on February 9, 2016, filed a Petition to Withdraw Appearance in the abo February 9, 2016, filed a Petition to Withdraw Appearance in the abo^ Attorney Rashid on
captioned matter. By an order dated February 10, 2016, this court granted this petition to withdra 10, 2016, this court granted this petition to withdraw captioned matter. By an order dated February See Order dated February 10, 2016. See Order dated February 10, 2016.
On March 16, 2016, the Defendant lodged his most recent Motion for Post Convicti Defendant lodged his most recent Motion for Post Convictibh On March 16, 2016, the
Collateral Relief. See Motion filed on March 16, 2016, and postmarked March 14, 2016.
March 16, 2016, and postmarked March 14, 2016 Collateral Relief. See Motion filed on
Via Viaananorder orderdated
datedMarch
March23,
23,2016,
2016,Henry
HenryDiBenedetto
DiBenedettoForrest,
Forrest,Esquire
Esquirewas
wasfor
forpurposes
purpose
ofofthis thiscollateral collateralaction
actionappointed
appointedtotorepresent
representDefendant
DefendantAnderson. SeeOrder Anderson. See Orderdated datedMarch
March23,
23
2016. After 2016. Aftera anumber numberofofextension
extensionrequests
requestsand
andhybrid
hybridfilings theDefendant, filingsbybythe whichwere Defendant,which werenot
n
adopted adoptedbybyhis hisappointed
appointedPCRA
PCRAcounsel,
counsel,said
saidcounsel
counselmade
madeapplication
applicationtotowithdraw
withdrawfrom
fromthis
thismatte
matter
because becauseofofananirretrievable irretrievablebreakdown
breakdownininnecessary
necessaryattorney
attorney---client
clientrelations. SeeApplication relations. See Applicationtot
Withdrawfiled Withdraw filedFebruary February10,
10,2022.
2022.This
Thiscourt
courtgranted
grantedthe
thewithdrawal
withdrawalrequest andappointed requestand prese t appointedpresent
PCRA PCRAcounsel, counsel,William WilliamP.P.Wismer,
Wismer,Esquire
Esquirebybyorder
orderdated
datedMarch
March14,
14,2022. SeeOrder
2022. See Orderentered
entere
March14, March 14,2022 2022and
andAOPC
AOPCDocket.
Docket.
The TheDefendant, Defendant,through
throughhis
hiscounseled,
counseled,amended
amendedPCRA
PCRApetition,
petition,sought
soughtrelief
reliefininthe
theform
formc f
vacatinghis vacating hisconvictions convictionsfor
formurder
murderand
andrelated.
relatedoffenses
offensesand
andordering
orderingaanew
newtrial. SeeDefendant’s trial. See Defendant s
counseled, counseled, Amended Amended PCRA
PCRA Petition
Petition docketed
docketed August
August 31,
31, 2022.
2022. This
This court
court ordered,
ordered, and
and the
Commonwealth responded Commonwealth responded toto the the Defendant’s
Defendant's Amended
Amended PCRA
PCRA Petition. See Commonwealth Petition. See Commonwealths
MotiontotoDismiss Motion Dismissand andMemorandum
Memorandumof
ofLaw,
Law,filed
filedFebruary 20,2023.
February20, 2023.
On OnNovember November 8,8, 2023,
2023, pursuant
pursuant toto Pa.R.Crim.P.
Pa.R.Crim.P. 908,
908, the
the court
court held
held aa PCRA
PCRA evidential}
evidenti
See N.T.
hearing. See hearing. N.T. 11/8/23, 11/8/23, pp. 1-67. By
pp. 1-67. agreement and By agreement and atat the the direction
direction of
ofthe
the court,
court, both
bothparties
parti
submitted post-hearing submitted memoranda following post-hearing memoranda following receipt of the receipt of the PCRA
PCRA hearing
hearing transcript. See N.
transcript. See N. f
11/8/23, pp. 11/8/23, pp. 66-67;
66-67; Petitioner’s
Petitioner's Memorandum
Memorandum of
ofLaw
Law dated
datedJanuary
January 2,
2, 2024;
2024; and
and Commonwealth’s
Commonwealt '
Supplemental Supplemental Post-Hearing Post-Hearing Memorandum
Memorandum in
in Support
Support of
ofDismissal
Dismissal filed
filed February
February 1,1, 2024.
2024.
Upon Upon review review and
and consideration
consideration of
of the
the entire
entire PCRA
PCRA hearing
hearing record,
record, which
which included
includ
Defendant’s Defendant's Amended Amended PCRA
PCRA Petition
Petition docketed
docketed August
August 31,
31, 2022;
2022; the
the Commonwealth’s
Commonwealth's Motion
Motion to
t
Dismiss Dismiss and and Memorandum Memorandum of
of Law
Law dated
dated February
February 20,
20, 2023;
2023; the
the PCRA
PCRA evidentiary
evidentiary hearing
heari
transcript dated November 8, 2023; the Petitioner's counseled post-hearing Memorandum i transcript dated November 8, 2023; the Petitioner’s counseled post-hearing Memorandum m Support of Post Conviction Relief dated January 2, 2024; and the Commonwealth's Supplement Support of Post Conviction Relief dated January 2. 2024; and the Commonwealth’s Supplemental Response docketed February 1, 2024, as well as having conducted an independent and thoroug Response docketed February 1, 2024, as well as having conducted an independent and thorough review of the record at trial, the court on June 18, 2024, dismissed Defendant Anderson's amende review of the record at trial, the court on June 18, 2024, dismissed Defendant Anderson’s amended PCRA petition and denied his related post-conviction collateral request for relief. See Ord PCRA petition and denied bis related post-conviction collateral request for relief. See Ordi Dismissing PCRA Petition after Evidentiary Hearing dated June 18, 2024; and AOPC Docket. Se Dismissing PCRA Petition after Evidentiary Hearing dated June 18, 2024; and AOPC Docket. See also Defendant's counseled, Amended PCRA Petition docketed August 31, 2022. also Defendant’s counseled, Amended PCRA Petition docketed August 31, 2022.
The relevant underlying factual background as elicited at Defendant Anderson's trial is s t The relevant underling factua! backed as elicited at Defendant Anderson’s trial is sit forth infra from the Superior Court's Memorandum Opinion affirming the Defendant's sentencin forth infra from the Superior Court’s Memorandum Opinion affirming the Defendant’s sentencing judgement. judgement.
Appellant, Brian K. Anderson, appeals from the judgment of Anpellant
sentence, Brian K. toAnderson, pursuant appeals a conviction from for first the murder, degree judgmententered
of
sentence, pursuant to a conviction for first degree ““^entered on July 26, 2012, by the Honorable Kevin F. Kelly, Court of on Common
Tulv 26 Pleas
2012, of
by Delaware
the Honorable
County.KevinAfterF. careful Ke ly, Court
review,orwe
Common
affirm. Pleas of Ddaware County. After careftd review. we affirm.
In a recorded statement to police investigators on April 22, 2011, In Anderson
a recordedadmitted
statement
thattoinpolice investigators the evening of Aprilon19,April 2011,22he
, 2011
had hit
Anderson admitted that in the evening of April 19, 2011, the victim, Toby Gale, Jr., in the head with a hammer. Anderson he had mt X Tobv Gale Jr in the head with a hammer. Anderson stated that he delivered the blow because he believed that Gale was trying to rob him and was reaching for a firearm. It is undisputed that Gale did not have a firearm at the time. that Gale did not have a firearm at the time.
Anderson then wrapped Gale, who may have still been alive at the time, in trash bags sealed with duct tape. Anderson placed Gale in the trunk of his vehicle and dumped him in a vacant lot in the City of Chester. Anderson then disposed of the hammer in a dumpster behind a market in Chester. He was subsequently arrested by beM
Chestera police
mX in Chester.
officers He was and charged withsubsequently murder. arrested by Chester
k police officers kand charged with murder.k *k k
* On appeal, Anderson * challenges the sufficiency of the evidence On appeal, Anderson challenges the sufficiency of the evidence supporting his conviction for first-degree murder. In particular, Anderson contends that the evidence cannot, as a matter of law, be
'
sufficient sufficienttotoovercome overcomehishisclaimed
claimedexcuse
excuseofofimperfect
imperfectself-defense:
self-defense:
“As "As[Anderson]
[Anderson]actually actuallybut
butunreasonably
unreasonablybelieved
believedthat
thatdeadly
deadlyforce
force
was necessary to defend himself, the evidence was sufficient toto was necessary to defend himself, the evidence was sufficient prove proveVoluntary VoluntaryManslaughter Manslaughter(i.e.,
(i.e.,“imperfect
"imperfectself-defense”)
self-defense)but but
notMurder not MurderofofthetheFirst FirstDegree.”
Degree."Appellant’s Brief,atat6.6.
Appellant'sBrief,
However, However,our ourreview reviewofofthetherecord
recordreveals
revealsaaplethora
plethoraof
ofevidence
evidencetoto
support a finding that Anderson killed Gale with malice, and support a finding that Anderson killed Gale with malice, andnot notout
out
ofan of anactual actualfear fearfor
forhis
hislife.
life.
*k *k *k *k *k First, First, the the Commonwealth Commonwealth presented
presented evidence
evidence of ofanimus
animus between
between
Anderson and Gale. At the time of Gale’s death, Anderson was Anderson and Gale. At the time of Gale's death, Anderson was living with his grandmother, Teresa Bishop. Ratika Lashandra Cruz living with his grandmother, Teresa Bishop. Ratika Lashandra Cruz was was aacare-taker care-takerfor forBishop,
Bishop, and
and was
was atatBishop’s
Bishop's home
hometoto arrange
arrange
for services for Bishop on the afternoon of April 19, 2011. She for services for Bishop on the afternoon of April 19, 2011. She testified testifiedthat thatshe
she observed
observedAnderson
Andersontexting
texting on
onhis
his cell
cellphone
phone and
and
state “if this nigger come over here I’m going to fuck him up.” N.T., state "if this nigger come over here I'm going to fuck him up." N.T., Trial, Trial, 5/14/2012, 5/14/2012, atat 204.
204. While
While CruzCruz testified
testified that
that she
she was
was not
not
explicitly aware of who Anderson was referring to, it was explicitly aware of who Anderson was referring to, it was permissible permissible for for the the jury
jury toto infer
infer that
that Gale
Gale was
was thethe object
object ofof
Anderson’s ire, given that Anderson admits that he killed Gale that Anderson's ire, given that Anderson admits that he killed Gale that evenmg. evening.
In In addition, addition, thethe Commonwealth Commonwealth presented presented expert expert testimony
testimony that that
Gale Gale was was struck strucktwice
twice ininthe
the head
head with
with aahammer,
hammer, not notjust
just once,
once, asas
claimed by Anderson. Bennett Preston, M.D., testified that Gale had claimed by Anderson. Bennett Preston, M.D., testified that Gale had been been “struck "struck twice twice inin the
the head,
head, once
once toto the
the upper
upper forehead
forehead to to the
the
right side and once to the right side of the head.” N.T., Trial, right side and once to the right side of the head. N.T., Trial, 5/16/2012, 5/16/2012, atat 37.37. The The injury
injury to to the
the forehead
forehead waswas caused
caused by by “the
"the
rounded, flat end” of the head of the hammer. Id., at 40. The injury rounded, flat end" of the head of the hammer. Id, at 40. The injury to to the the right right side side ofofthe
the head
head waswas caused
caused by by the
the claw
claw ofofthe
the hammer
hammer
head. Id Either head. Id. Either injury injury would
would have have been
been enough
enough to to immediately immediately
incapacitate Gale. See id., at 46. This testimony certainly undercut incapacitate Gale. See id, at 46. This testimony certainly undercut the the credibility credibility of of Anderson’s Anderson's claim claim that that he
he struck
struck Gale
Gale only
only once
once
with the hammer. Evidence of a second blow from the hammer, after with the hammer. Evidence of a second blow from the hammer, after Gale Gale was was already already incapacitated,
incapacitated, isis also also sufficient, sufficient, by by itself, itself, to
to
support a finding that Anderson acted with malice and not in self¬ support a finding that Anderson acted with malice and not in self- defense. defense.
Furthermore, Furthermore, Dr.Dr. Preston Preston opined
opined that
that Gale
Gale was
was still
still alive
alive when
when
Anderson Anderson placed placed aa garbage
garbage bag
bag over
over his
his head.
head. See
See id.,
id, atat 45-46.
45 46. Gale
Gale
had a had a 50/50 chance chance of surviving the injuries to his head head if he had
had
been been provided provided immediate immediate medical
medical treatment. See id., id, at 48. Dr.
Preston believed that Gale’s Gale's death was caused by “[b]lunt-force "[b]lunt-force
injury to to the head head contributed to by asphyxiation.”
asphyxiation." Id.,
Id, at 50. Based
upon uponthis
thisevidence,
evidence,even
evenififthe
thejury
juryhad
hadbelieved
believedthat
thatAnderson
Andersonacted
acted
pursuant to an actual belief that Gale was threatening him, the jury pursuant to an actual belief that Gale was threatening him, the jury was entitled to conclude that Anderson’s failure to seek immediate was entitled to conclude that Anderson's failure to seek immediate medical medical attention
attention for
for Gale
Gale established
established that
that Anderson
Anderson acted
acted with
with
malice. malice.
Finally,
Finally,the
theCommonwealth
Commonwealthpresented
presentedevidence
evidencethat
thatAnderson
Andersonwent went
totogreat
greatlengths
lengthstotoclean
cleanup
upand
andhide
hidethe
thecrime
crimescene.
scene.See, e.g.,N.T., See, e.g., N.T.,
Trial, 5/15/12, at 45-54; 201-204. Evidence that the defendant Trial, 5/15/12, at 45-54; 201-204. Evidence that the defendant cleaned
cleanedthethesite
siteofofthe
themurder
murderininan
anattempt
attempttotohide
hideevidence
evidenceof ofthe
the
crime permits an inference of the defendant’s consciousness of his crime permits an inference of the defendant's consciousness of his own
own guilt.
guilt. See
See Truong,
Truong, 36 36 A.3d
A.3d 592,
592, 600
600 (Pa.Super.2012)(en
(Pa.Super.2012)(en
bane). banc).
Viewing Viewing thethe record
record asas aa whole,
whole, there
there was
was sufficient
sufficient evidence
evidence toto
support the jury’s verdict that Anderson acted with malice when support the jury's verdict that Anderson acted with malice whenhe he killed killedGale.
Gale.We
Wetherefore
thereforeconclude
concludethat
thatAnderson’s
Anderson'schallenge
challengetotothe
the
sufficiency of the evidence supporting his conviction merits no sufficiency of the evidence supporting his conviction merits no relief. relief.
See See Superior SuperiorCourt CourtMemorandum
MemorandumOpinion
Opiniondated
datedNovember
November26,26, 2013,
2013,supra
supra atat*1
*1 and
and *3.
3. See
See also
also
Pa.R.A.P. 1925(a) Trial Court Opinion on direct appeal dated June 26, 2013, pp. 11-56, referenced Pa.R.A.P. 1925(a) Trial Court Opinion on direct appeal dated June 26, 2013, pp. 11-56, referenc supra. supra.
III. III. Timeliness
Timeliness
Before Before reachin
reachingg the
the merits
merits of
of Defendant’s
Defendant's claims,
claims, the
the timeliness
timeliness of
of Defendant’s
Defendant's petition
petitio
had had to to be be addressed.
addressed. See
See Commonwealth
Commonwealth v.• Miller,
Miller, 102
102 A.3d
A.3d 988,
988, 992
992 (Pa.Super.
(Pa.Super. 2014).
2014). A
defendant defendant must must file
file aa PCRA
PCRA petition
petition within
within one
one (1)
( 1) year
year from
from the
the date
date the
the judgment
judgment of
of sentence
sentenc
becomes becomes final.
final. 42 42 Pa.C.S.
Pa.C.S. §9545(b)(l).
§9545(b)(l). “The
"The timeliness
timeliness of
of aa PCRA
PCRA petition
petition is
is jurisdictional. If a
jurisdictional. If
PCRA PCRA petition petition is is untimely,
untimely, aa court
court lacks
lacks jurisdiction.”
jurisdiction." Commonwealth Commonwealth v.v. Reeves, Reeves, 296
296 A.3d
A.3d 122b,
122 ,
1230-31 1230-31 (Pa.Super.
(Pa.Super. 2023).
2023). See
See also
also Commonwealth
Commonwealth v.
v. Pew, 189 A.3d 486, 488(Pa.Super. 2018)
201
(“All (AII PCRA PCRA petitions petitions must be
be filed within one year of the date upon which the judgment of of sentenc
sen ten e
becamefinal, became final,unless unlessone
oneofofthethestatutory
statutoryexceptions
exceptionssetsetforth
forthinin4242Pa.C.S.
Pa.C.S.§9545(b)(l)(i)-(iii)
§9545(b)(l)(i)-(iii)
applies.");Commonwealth applies.”); Commonwealthv. v.Kretchmar, Kretchmar,189
189A.A.3d 459,462
3d 459, 462 (Pa.Super.
(Pa.Super.2018) quoting4242Pa.C.S.
2018)quoting Pa.C.S.
§9545(b)(l)(i)-(iii);Commonwealth §9545(b)(l)(i)-(iii); Commonwealthv. v. Staton, Staton, 184
184A.A.3d 954(Pa.Super.
949,954
3d 949, (Pa.Super.2018)
2018)quoting
quotin
Commonwealthv. v.Cox, Commonwealth Cox,636 636Pa.
Pa.603,
603,613,
613,146
146A.3d
A.3d221,
221,227
227(2016); Commonwealthv.v.Johnson.
(2016);Commonwealth Johnson
945A.2d 945 A.2d185, 185,188
188(Pa.Super.
(Pa.Super.2008);
2008);Commonwealth
Commonwealthv. v.Davis,
Davis,916
916A.2d
A.2d1206, 1208-09(Pa.Super.
1206,1208-09 (Pa.Super
2007); and 2007); and Commonwealth Commonwealth v. v. Jackson, Jackson, 3030 A.A.3d 516, 518-19 3d 516, 518-19 (Pa.Super.
(Pa.Super. 2011) quoting424 2011) quoting
Pa.C.S.§9545(b). Pa.C.S. 89545(b). AAsentencing sentencingjudgment
judgmentbecomes
becomesfinal
finalfor
forpurposes
purposesofofthe
thePost
PostConviction
ConvictionRelie::
Relief
Act“ "......atatthe Act theconclusion conclusionofofdirect
directreview,
review,including
includingdiscretionary reviewininthe discretionaryreview theSupreme Co SupremeCour:
ofofthe theUnited UnitedStates Statesand
andthe
theSupreme
SupremeCourt
CourtofofPennsylvania,
Pennsylvania,ororatatthe
theexpiration
expirationofoftime
timefor
forseeking
seekin
thereview.” the review." 42 42Pa.C.S.
Pa.C.S.§9545(b)(3).
§9545(b)(3).
TheDefendant’s The Defendant'sinitial, initial,uncounseled,
uncounseled,pro
prosesePCRA
PCRAPetition
Petitionrequesting restorationof requestingrestoration ofhs
righttotopursue right pursueaanunc nuncpro tunepetition
protunc petitionfor
forallowance
allowanceof
ofappeal docketedon
appealdocketed onJanuary 22,2014, January22, 2014,w<.s
w
clearlytimely. clearly timely. See SeeDefendant’s
Defendant'spro
prose PCRAPetition
se PCRA Petitionfiled
filedJanuary 22,2014,
January22, 2014,(“Prisoner Mailb ("PrisonerMailbcx
Rule"where Rule” wherean anincarcerated
incarceratedpro
prose defendant'sfiling
se defendant’s filingdate dateisisdeemed
deemedwhen
whenititisisplaced
placedininthe
thehands
han
ofprison of authorities for prison authorities for mailing.).
mailing.). See
See also
also Commonwealth
Commonwealth v.v». Crawford, Crawford, 17
17 A.3d
A.3d 1277,
1277, 1211
12
and
(2011); an (2011); Commonwealth v.v. Wojtaszek, d Commonwealth Wojtaszek, 951 951 A.2d
A.2d 1169,
1169, 1170,
1170, Fn.
Fn. 33 (Pa.
(Pa. Super.
Super. 2008). T
2008). The
PrisonerMailbox Prisoner MailboxRule Rule was
was not
not applied here due
applied here due toto lack lackof
ofnecessity. See also
necessity. See also Counsel’s Counsel's Amended
Amend
PCRA Petition PCRA Petition dated dated April 17, 2015;
April 17, 2015; and
and 42
42 Pa.C.S.
Pa.C.S. §9545(b)(l)(3).
§9545(b)(1)(3).
When aa PCRA When PCRA petitioner’s direct appeal petitioner's direct rights are appeal rights are reinstated, reinstated, aa subsequent PCRA pleading subsequent PCRA pleadi
isis considered considered aa first first PCRA
PCRA filing
filing for
for timeliness
timeliness purposes.
purposes. Commonwealth
Commonwealth v.v. Karanicolas, Karanicolas, 836
836 A.2d
A.
940, 944 940, 944 (Pa.Super.
(Pa.Super. 2003) citing generally 2003) citing Commonwealth v.v. Lewis, generally Commonwealth Lewis, 718 718 A.2d
A.2d 1262
1262 (Pa.Supsr.
(Pa.Sup
1998); Commonwealth v.• Turner, 1998); Commonwealth Turner, 734 734 A.3d
A.3d 1283,
1283, 1286,
1286, Fn.
Fn. 33 (Pa.Super.
(Pa.Super. 2013)(The
2013)(The one-year
one-year PCI
PC A
filing time certain does not begin to run until the appeal nunc tune renders the o filing time certain does not begin to run until the appeal nunc propro judgment tunc renders the judgment o::
sentence final.) sentence final.)
The Supreme Court of Pennsylvania on December 8,2015, The Supreme Court of Pennsylvania on December 8, 2015, denied Defendant Anderson'
denied Defendant Anderson’ ;
Petition for Allowance of Appeal salient to his convictions' direct appellate review, and upo
Petition for Allowance of Appeal salient to his convictions’ direct appellate review, and upon application, subsequently refused reconsideration of its order denying allocatur on application, subsequently refused reconsideration of its order denying allocatur on January 21,21, January
2016. See Commonwealth v. Anderson supra. Hence, after recognizing 2016. See Commonwealth v. Anderson supra. Hence, after recognizing the ninety
the ninety (90)
(90) dayday perio
period
for filing a Petition for Writ of Certiorari to the United States Court, the Defendant'
SupremeCourt, the Defendant’ s for filing a Petition for Writ of Certiorari to the United States Supreme sentencing judgment at bar became final on March 8, 2016, and the one year PCRA time cloc sentencing judgment at bar became final on March 8, 2016, and the one year PCRA time clocc commenced. See 42 Pa.C.S. §9545(b)(3). See also U.S.Sup.Ct.R. 13.1. To satisfy the Pot commenced. See 42 Pa.C.S. §9545(b)(3). See also U.S.Sup.Ct.R. 13.1. To satisfy the Post Conviction Relief Act's one (1) year filing mandate, Defendant Anderson was thus required to lod Conviction Relief Act’s one (1) year filing mandate, Defendant Anderson was thus required to lodge his PCRA pleadings no later than March 8, 2017. See 42 Pa.C.S. The Defendants §9545(b)(1)(3).The Defendant s his PCRA pleadings no later than March 8, 2017. See 42 Pa.C.S. §9545(b)(l)(3).
prose PCRA petition postmarked March 14, 2016, and docketed on March 16, 2016, once agai pro se PCRA petition postmarked March 14, 2016, and docketed on March 16, 2016, once again meets the jurisdictional requirements of the PCRA. meets the jurisdictional requirements of the PCRA.
IV. PCRA_Eligibility Requirements and Legal Standards IV. PCRA Eligibility Requirements and Legal Standards
Section 9543 of the PCRA, inter alia, provides to be eligible for relief a defendant m Section 9543 of the PCRA, inter alia, provides to be eligible for relief a defendant mus.
l
establish by a preponderance of the evidence that the conviction(s) resulted from one (1) or more establish by a preponderance of the evidence that the conviction(s) resulted from one (1) or more o:: the Act's specifically enumerated errors and/or defects and that such have not been waived. See the Act’s specifically enumerated errors and/or defects and that such have not been waived. See <-2 Pa.C.S. §9543(a)(l)(2)(3). See also Commonwealth v. Banks, 540 Pa. 143, 148-149, 656 A.. PaC S. §9543(a)(l)(2)(3). See also Commonwealth v. Banks, 540 Pa. 143, 148-149, 656 A.2d
G
467, 469 (1995) and Commonwealth v. Keaton, 615 Pa. 675, 693, 45 A.3d 1050, 1060 (201 467, 469 (1995) and Commonwealth v. Keaton, 615 Pa. 675, 693, 45 A.3d 1050, 1060 (2012)
42 Pa.C.S. §9544(b). A collateral claim is waived for purposes of the Post Convicti quoting 42 Pa.C.S. §9544(b). A collateral claim is waived for purposes of the Post Conviction quoting
Relief Relief Act“ "......ifif Act thepetitioner the petitionercould
couldhave
haveraised
raisedit itbut
butfailed
failedtotododososobefore
beforetrial,
trialat
, attrial,
trialduring
, durin
unitaryreview, unitary review,ononappeal appealororinina aprior
priorstate
statepost
postconviction
convictionproceeding.”
proceeding."4242Pa.C.S.
Pa.C.S.§9544(b).
§9544(b).
ToToprevail prevailonona petition
a petitionfor
forPCRA
PCRArelief,
relief,based
basedononthe
theissues
issuesraised
raisedand
andgrounds reliedononbyb groundsrelied
DefendantAnderson, Defendant Anderson,hehehad hadthe
theburden
burdentotoplead andburden pleadand burdenofofproving, proving,bybya apreponderance preponderanceofofthe
th
evidence,that evidence, thathis hisconviction
convictionresulted
resultedfrom
fromineffectiveness
ineffectivenessofofcounsel, which“so counsel,which "soundermined underminedthe
th
truth-determiningprocess truth-determining processthat thatnonoreliable
reliableadjudication
adjudicationofofguilt
guiltororinnocence
innocencecould
couldhave
havetaken
takenplace.
place.’ '
4242Pa.C.S.
Pa.C.S.§9543(a)(2)(ii);
§9543(a)(2)(ii);and Commonwealthv.v.Hopkins, andCommonwealth 231A.3d Hopkins,231 A.3d855, 871(Pa.Super.
855,871 2020, (Pa.Super.2020],
appealdenied, appeal 663Pa.
denied,663 Pa.418, 418,242
242A.A.3d 908(2020).
3d 908 (2020).
The law The lawpresumes presumes counsel
counsel has
has rendered
rendered effective
effective assistance,
assistance, and
and “ " .... . . the
the burden
burden of
demonstratingineffectiveness demonstrating ineffectivenessrests restson
on[the defendant]"Commonwealth [thedefendant]” Rivera, 10IOA.3d Commonwealthv.v.Rivera, A.3d127( 127 , ,
1279 (Pa.Super. 1279 2010) citing (Pa.Super. 2010) Commonwealth v.v. Thomas, citing Commonwealth 783 A.3d Thomas, 783 A.3d 328,
328, 332
332 (Pa.Supe-.
(Pa.Supe.
2001)(citation omitted). 2001)(citation omitted). To To satisfy
satisfy his
his oror her
her burden,
burden, aa defendant
defendant must
must plead
plead and
and prove
prove by
by a
ofthe
preponderanceof preponderance theevidence evidencethat:
that: (1) theunderlying
(1)the underlyingclaim
claimhas
hasarguable
arguablemerit;
merit;(2) noreasonable
(2)no reasonab e
basis existed basis existed for for counsel’s
counsel's actions
actions or
or failure
failure toto act;
act; and
and (3)
(3) absent
absent counsel
counsel's
s error(s), there isis a error(s), there
reasonable probability reasonable thatthe probability that the outcome outcome of
ofthe
the challenged
challenged proceeding would have proceeding would have been been different.
differe
Commonwealth v.• Spotz, Commonwealth 624 Pa.
Spotz, 624 Pa. 4,4, 33-34, 33-34, 84
84 A.3d
A.3d294,
294,312
312 (2014)(“[A] reasonable probability (2014)("[A] reasonable probability :s
aa probability, that isis sufficient probability that sufficient toto undermine undermine confidence
confidence in
in the
the outcome
outcome of
of the
the proceeding.”):
proceeding.'
Commonwealthv.v. Busanet, Commonwealth 54 A.3d Busanet, 54 A.3d35, 46 (Pa.
35, 46 2012); and
(Pa. 2012); Commonwealth v.v. Fulton, and Commonwealth 830 A.2d Fulton, 830 A.2d 56
567
572 (Pa. 572 See also 2003). See
(Pa. 2003). Commonwealth v.v. Hopkins also Commonwealth Hopkins supra 876 A.3d supra 876 A.3d at
at 876
876 quoting
quoting Commonweal^
Commonweal
v.v. Chambers, 570 Pa.
Chambers, 570 Pa. 3, 3, 22,
22, 887
887 A.2d
A.2d 872,
872, 883
883 (2002)(“[A]
(2002)([A] criminal
criminal defendant
defendant alleging
alleging prejudice
prejudi
must show must show that that counsel’s
counsel's errors
errors were
were so
so serious
serious as
as to
to deprive
deprive the
the defendant
defendant of
of aa fair trial, aa trial fair trial,
whose result whose result is is reliable.”). Failure to reliable."). Failure to satisfy satisfy any of the
any of the three
three (3)
(3) prongs
prongs of
of the
the test
test will
will result
result in
intthe
denial denialofofa adefendant’s defendant'sclaim.
claim. Id.;
Id.,·Commonwealth
Commonwealthv.v. Sandusky, Sandusky,203
203A.3d
A.3d1033,
1033, 1043
1043(Pa.Supei.
(Pa.Supe.
2019),appeal 2019), appealdenied, 654Pa.
denied,654 Pa.568,
568,216 A.3d1029
216 A.3d 1029(2019).
(2019).
Of Ofcourse, course,“"......counsel
counselcannot
cannotbe
bedeemed
deemedineffective
ineffectivefor
forfailing
failingtotoraise
raiseaameritless
meritlessclaim
claim’ '
ororfailing failingtotoperform performaafutile
futile act.
act. Commonwealth
Commonwealthv.v. Fears,
Fears, 86
86 A.A.3d
3d 795,
795, 804
804 (Pa.
(Pa. 2014)
2014)citing
citin
Commonwealth Commonwealthv.• Washington, Washington, 927
927A.2d
A.2d586,
586, 603
603 (Pa.
(Pa.2007)(Citations
2007)(Citationsomitted);
omitted); Commonwealth
Commonwealt
v.•Loner, 836A.2d Loner,836 A.2d 128, 128, 132
132(Pa.Super.
(Pa.Super.2003)(en
2003)(enbanc).
banc).
Finally, Finally, asasaageneral generalrule,
rule,“a
"alawyer
lawyershould
shouldnot
notbe
be held
held ineffective
ineffective without
without first
first having
having ai
opportunity opportunitytotoaddress addressthe
theaccusation
accusationininsome
somefashion.” Commonwealthv.». Colavita, fashion."Commonwealth Colavita, 993 993 A.2d
A.2d 87
87z, ,
895 895 (Pa.
(Pa.2010), 2010), overruled
overruledon
on other
othergrounds,
grounds,Commonwealth
Commonwealthv.v. Bradley, Bradley, 261
261 A.3d
A.3d 381
381 (Pa.
(Pa.2021)
2021)
V,Vy._ Ineffective
_IneffectiveAssistance
Assistance of
ofCounsel
Counsel Claims
Claims
Defendant Defendant Anderson Anderson posited
posited five
five (5)
(5) ineffective
ineffective assistance
assistance of
of counsel
counsel claims.
claims. First,
First, l e
averred averred that that trial trial counsel
counsel rendered
rendered ineffective
ineffective assistance
assistance by
by failing
failing to
to further
further question
question aajuror
juror who
w
affirmatively affirmatively responded responded that
that because
becausethe
the underlying
underlying circumstances
circumstances of
ofthe
the victim’s
victim's killing
killing were
were dug
d
related related itit would would be
be “difficult,
"difficult, if
ifnot
not impossible”
impossible" for
for him
him “to
"to be
be aa fair
fair and
and impartial
impartial juror
juror should
should [he;
[h
be be selected.”
selected." See See N.T.
N.T. 5/1 1/12, pp.
5/11/12, pp. 41-42.
41-42. Other
Other than
than standing
standing up
up along
along with
with four
four (4)
( 4) other
other membe
membe
of ofthe thejury jury panel panel after
after the
the question
question was
was asked, juror number
asked,juror number four
four (4)
( 4) was
was not
not individually
individually voir
voir direi,
dire
trial trial counsel counsel did did not
not move
move to
to challenge
challenge the
the juror
juror for
for cause,
cause, nor
nor did
did he
he utilize
utilize aa peremptory
peremptory strike
strike
eliminate eliminate the the juror.
juror. Panelist
Panelist number
number four
four (4)
(4) ended
ended up being
being seated as juror
juror number two (2)
(2) for
fortth^
Defendant's trial. See N.T. 5/11/12 at 263; Amended PCRA Petition docketed August 31,202 , N.T. 5/11/12 at 263; Amended PCRA Petition docketed August 31, 2022, Defendant’s trial. See pp. 3-4.
pp. 3-4.
Second, the Defendant alleged his trial counsel was constitutionally ineffective for failing t Second, the Defendant alleged his trial counsel was constitutionally ineffective for failing th file a motion to sever his case for trial from his Co-Defendant, Donier White's matter pursuant t file a motion to sever his case for trial from his Co-Defendant, Donier White’s matter pursuant tL Pa.R.Crim.P. 583. See Amended PCRA Petition docketed August 31, 2022, pp. 4-5. See als Pa.R.Crim.P. 583. See Amended PCRA Petition docketed August 31, 2022, pp. 4-5. See aha Commonwealth v. White, No. 5625-11. This issue; however, has not been preserved for appellat Commonwealth V. White, No. 5625-1 1. This issue; however, has not been preserved for appellaj review because it was not in included in the Defendant's Pa.R.A.P. 1925(b) Concise Statement review because it was not in included in the Defendant’s Pa.R.A.P. 1925(b) Concise Statement Matters Complained of on Appeal.3 See Defendant's Statement Pursuant to Pa.R.A.P. 1925 Matters Complained of on Appeal.” See Defendant’s Statement Pursuant to Pa.R.A.P. 1925(d)
docketed August 15, 2024.
docketed August 15,2024.
Defendant Anderson's third claim related to trial counsel's failure to object during t third claim related to trial counsel’s failure to object during thb Defendant Anderson’s
prosecutor's closing argument when he juxtaposed Defendant Anderson and his co-defendants when he juxtaposed Defendant Anderson and his eo-defendant s prosecutor’s closing argument statements with the physical evidence and the medical examiner findings. See Amended PC and the medical examiner findings. See Amended PCRA statements with the physical evidence Petition Docketed August 31, 2022, pp. 5-7 and N.T. 5/17/12, pp. 35-36. The Defendant conten . 5-7 andN.T. 5/17/12, pp. 35-36. The Defendant content s Petition Docketed August 31, 2022, pp that this was a clear violation of Bruton v. United States, 393 U.S. 123, 88 S.Ct 1620, 20 L.Ed.
United States, 393 U.S. 123. 88 S.Ct. 1620, 20 L.Ed.ii that this was a clear violation of Bruton v.
676 (1968) and the court's instructions to the attorneys prior to their closing arguments. 676 (1968) and the court’s instmctions to the attorneys prior to their closing arguments.
Next, the Defendant asserted his trial counsel was ineffective for failing to object to anoth ineffective for failing to object to anothei Next, the Defendant asserted his trial counsel was portion of the prosecutor's closing argument where he states that Defendant Anderson's stateme that Defendant Anderson’s statemenl portion of the prosecutor’s closing argument where he states to law enforcement was "so incoherent, so inconclusive, so contradictory that it's not worth t , contradictory that it’s not worth the to law enforcement was “so incoherent, so inconclusive, so paper it's printed on .... and [y]ou can line the cat box with it. It is nothing but lies .... "N.T N.
line the cat box with it. It is nothing but lies. ...
paper it’s printed on. ... and [y]ou can 5/17/12 at pp. 30-32. PCRA counsel contends such remarks wereinflammatory inflammatoryand
andprejudicial
prejudicialanc.
5/17/12 at pp. 30-32. PCRA counsel contends such remarks were
warranted warranted an an objection
objection by
by trial
trial counsel.
counsel. See
See Amended PCRA Petition Amended PCRA docketed August Petition docketed 31, 202 August 31, 2022,,
pp. pp. 7-9.
Defendant Defendant Anderson’s Anderson's final
final claim
claim alleged
alleged ineffective assistance of ineffective assistance of his his appellate
appellate counsel
counsel ffor
failing failing to to raise raise the
the claim
claim on
on direct
direct appeal
appeal that
that the
the court abused its
court abused its discretion discretion in allowing th in allowing ths
testimony testimony of of witness
witness Ratika
Ratika Cruz
Cruz who
who testified
testified that
that before
before the
the victim
victim was
was killed,
killed, while
while texting,
texting, ths
t
Defendant Defendant uttered uttered “if
"if this
this nigger
nigger come
come over
over here
here I’m
I'm going
going to
to fuck
fuck him
him up.”
up." N.T. 5/14/12, p.
N.T. 5/14/12, p. 201
20
and and Amended Amended PCRA PCRA Petition
Petition docketed
docketed August
August 31,
31, 2022,
2022, p.
p. 9.
9. Before Ms.
Before Ms. Cruz
Cruz testified, tril 1l
testified, tri
counsel counsel placed placed his his objection
objection to
to such
such testimony
testimony on
on the
the record
record and
and asserted
asserted that
that because
because the
the Defendai
Defend t
did not identify identify to whom he was referring, referring, it was speculative speculative and unduly prejudicial rather than th
probative. probative. See See N.T.
N.T. 5/14/12,
5/14/12, pp.
pp. 153-55.
153-55. The
The court
court overruled
overruled the
the objection
objection and
and the
the witness
witness testified
testifi
as as described.
described. Direct Direct appeal
appeal counsel
counsel did
did not
not pursue
pursue this
this issue
issue on
on appeal.
appeal.
The The court’s
court's analysis
analysis of
of the
the PCRA
PCRA issues
issues preserved
preserved for
for appellate
appellate review
review follows.
follows.
VI, VI. Discussion
Discussion
VI-A. VI-A. Alleged Alleged ineffective ineffective assistance
assistance of
of counsel
counsel during
during voir
voir dire
direfor
for not
not challenging
challengingfor
for cause
cause o
exercising exercising aa peremptory peremptory challenge
challenge to
to eliminate
eliminate juror
juror number
numberfour
four (4)
(4) from
from the
the panel
panel.
In Defendant Defendant Anderson’s Anderson's Rule
Rule 1925(b)
1925(b) statement,
statement, he
he couches
couches the
the first
first issue
issue in
in the
the following
followi
manner: manner:
Whether Whether the
the PCRA
PCRA court
court erred
erred in
infinding
finding Defendant’s
Defendant's trial
trial counsel
counsel
was was not
not ineffective
ineffective under
under the
the Sixth
Sixth Amendment
Amendment to to the
the United
United States
States
Constitution Constitution andand parallel parallel provisions
provisions of of the
the Pennsylvania
Pennsylvania
Constitution, Constitution, in
in allowing
allowing Juror
Juror #4#4 to
to be
be seated,
seated, as
as the
the juror
juror was
was
openlybiased, openly biasedagainst
againstthe
theDefendant
Defendantbased
basedononthe
thenature
natureofof thecase,
the case,
and in ruling that trial counsel's error was not and in ruling that trial counsel’s error was not prejudicial?
prejudicial?
Defendant'sStatement Defendant’s StatementPursuant PursuanttotoPa.R.A.P.
Pa.R.A.P.1925(b) docketedAugust 1925(b)docketed August15, 2024-No.
15,2024 - No. 1.1.
The ThePennsylvania Pennsylvaniaappellate
appellatecourts
courtshave
havelong
longrecognized
recognizedasasfollows
followsrelative
relativetotothe
thejury
j
selectionprocess: selection process:
The Thetest
testfor fordetermining
determining whetherwhether a aprospective prospectivejuror jurorshould shouldbebe
disqualified disqualified isis whether whether hehe isis willingwilling and and able able toto eliminate
eliminate thethe
influence of any scruples and render a verdict according to the influence of any scruples and render a verdict according to the evidence,and evidence, andthisthisisistotobebedetermined determinedon onthethebasis basisofofanswers
answerstoto
and demeanor ... . It questions and demeanor .... It must be determined whether any questions must be determined whether any biases or prejudices can be put biases or prejudices can be putaside on proper aside on properinstruction of the instruction of the
court court ....
. .. . AA challenge
challenge for for cause
cause should
should be be granted
granted whenwhen thethe
prospective juror has such a close relationship, familial, financial, oror prospective juror has such a close relationship, familial, financial, situational, situational,with withthe theparties,
parties,counsel,
counsel,victims,
victims,ororwitnesses
witnessesthat thatthe
the
court will presume a likelihood of prejudice or demonstrates aa court will presume a likelihood of prejudice or demonstrates likelihood of likelihood of prejudice prejudice by by his his oror her her conduct
conduct and and answers
answers toto
questions.... The decision on whether to disqualify is within questions .... The decision on whether to disqualify is within the the
discretion of the trial court and will not be reversed in the absence discretion of the trial court and will not be reversed in the absence ofaapalpable of palpableabuse abuseof ofdiscretion discretion.... ....
Commonwealthv.v.Lesko, Commonwealth Lesko,609 609Pa.
Pa. 128,
128,242-43,
242-43, 15
15A.3d
A.3d345,
345,413-14
413-14(201 1) quoting
(2011) Commonwealt quotingCommonwealth
v». Wilson, 543 Pa. 429, 442, 672 A.2d 293, 299 (1996) quoting Commonwealth v. Wilson, 543 Pa. 429, 442, 672 A.2d 293, 299 (1996) quoting Commonwealth v. Colson, 507 v. Colson, 507Pe..
P .
440, 440,454, 454,490 490A.2d
A.2d 811,
811, 818
818 (1985),
(1985),abrogated
abrogatedononother
othergrounds,
grounds, Commonwealth
Commonwealthv.v». Burke,
Burke,566
566Pa.
P .
402, 781 A.2d 1136 (2001). 402’ 781 A.2d 1136 (2001).
A A criminal criminal defendant’s
defendant'sright
rightto
to an
an impartial
impartialjury
jury isis explicitly
explicitly granted
grantedby
by Article
Article I,I, Section
Section )
of of the the Pennsylvania Pennsylvania Constitution Constitution and
and the
the Sixth
Sixth Amendment
Amendment of
of the
the United
United States
States Constitution.
Constitutio
Commonwealth Commonwealth v.v. Ellison, Ellison, 588
588 Pa.
Pa. 1,1, 8,8, 902
902 A.2d
A.2d 419,
419, 423
423 (2006)
(2006) citing
citing Commonwealth
Commonwealth v.v. Ingber, Ingbet,
516 516 Pa.
Pa. 2, 2, 6, 6, 531
531 A.2d
A.2d 1101,
1101, 1102
1102 (1986).
(1986). The
The jury
jury selection
selection process
process isis most
most certainly
certainly crucial
crucial to
that that right’s right's preservation. Id 588 preservation. Id. 588 Pa.
Pa. at
at 8,8, 902
902 A.2d
A.2d at
at 423. Voir dire
423. Voir dire provides
provides counsel
counsel the
the obviously
obvious}
requisite requisite opportunity opportunity to
to assess
assess the
the qualifications
qualifications of
of the
the prospective
prospective jurors
jurors to serve. ItIt isis therefoie to serve. therefo e
appropriate appropriate to to use
use such
such an
an examination
examination to
to disclose
disclose fixed
fixed opinions
opinions or
or to
to expose
expose other
other reasons
reasons for
f
disqualification. Commonwealth disqualification. Commonwealthv. v.Drew, 500Pa.
Drew,500 Pa.585,
585,588,
588,459
459A.2d
A.2d318, 320(1983)
318,320 citin
(1983)citing
Commonwealthv.v.Johnson, Commonwealth 452Pa.
Johnson,452 Pa.130,
130,134, 305A.2d
134,305 A.2d5,5,7 7(1973).
(1973).
ItItisiswell-settled well-settledthat
thatthe
thesole
solepurpose
purposeofofthe
thequestioning
questioningofofprospective prospectivejurors
jurorsunder
undervoir
voirdir
dir?
isistotosecure securea acompetent, competent,fair,
fair,impartial
impartialand
andunprejudiced
unprejudicedjury. Commonwealthv.v.Ellison jury. Commonwealth supra58581 Ellisonsupra
Pa.atat8,8,902 Pa. 902A.2d A.2datat423-24
423-24citing
citingCommonwealth
Commonwealthv.v.Drew
Drewsupra 500Pa.
supra500 Pa.atat589, A.2datat3232)
459 A.2d
589,459
Commonwealthv.».McGrew, citingCommonwealth citing 375Pa.
McGrew,375 Pa.518,
518,525,
525,100
100A.2d
A.2d467,
467,470
470 (1953). Whilea alawyer (1953). While lawy
should shouldbebepermitted permittedconsiderable
considerablelatitude
latitudeon
onvoir
voirdire,
dire,such
suchinquiries
inquiriesare
areconfined
confinedbybyrelevance
relevancetit
disclosingthe disclosing thelegal legalqualifications
qualificationsofofaajuror andwhether jurorand whetherthe
thejuror hasformed
jurorhas formedaafixed
fixedopinion
opinioncr r
maybe may beotherwise otherwisesubject subjecttotostriking
strikingfor
forcause.
cause. Id.
Id. See
Seealso 42Pa.C.S.
also42 Pa.C.S.§§4502 and4503.
§§4502and 4503.
Regarding Regardingjury juryselection
selectionininaacriminal
criminaltrial,
trial,the
theRules
Rulesof
ofCriminal
CriminalProcedure
Proceduredirect
directthat
thattrirl
tri 1
courts use courts use juror juror information
information questionnaires questionnaires inin conjunction with the conjunction with the voir voir dire examination cf dire examination
prospectivejurors. prospective jurors. See Pa.R.Crim.P. 631(E)
See Pa.R.Crim.P. 631(E) and and Pa.R.Crim.P.
Pa.R.Crim.P. 632.
632. The
The questionnaire serves to questionnaire serves
facilitate facilitateand andexpedite
expeditevoir
voirdire
direand
andisistotobe
beused
usedasasan
anaid
aidininthe
theoral
oralquestioning
questioningof
ofpotential
potentialjuror
juror>. .
By By providing providing the the trial
trialjudge
judge and
and attorneys
attorneys with
with basic
basic background
background information
information about
about the
the possible
possib
jurors and eliminating jurors and the need eliminating the need for for many
many commonly
commonly asked
asked questions, the informational questions, the infonnation
questionnaires questionnaires of ofvenirepersons
venirepersons enable
enable the
thejury
jury selection
selectionprocess
processtoto proceed
proceed more
more orderly
orderly and ti e
andtin
efficient. efficient. Nothing Nothing in
in these
these rules
rules detailing
detailing the
the use
use of
of potential
potential juror
juror questionnaires
questionnaires isis intended intended 1c
preclude oral questioning preclude oral during voir questioning during voir dire.
dire. See Pa.R.Crim.P. 631 See Pa.R.Crim.P. 631 Comment Comment and
and 632
632 Comment.
Comment. See
S
also Commonwealth also Commonwealth v.v. Ellison Ellison supra 588 Pa.
supra 588 Pa. at
at 8-9,
8-9, 902
902 A.2d
A.2d at
at 423-24.
423-24. Moreover,
Moreover, juror
jur
information information questionnaires questionnaires are
are to
to be
be used
used in
in conjunction
conjunction with
with the
the verbal
verbal examination
examination of
of the
t
prospective prospective jurors and are jurors and are not
not to
to be
be used
used as
as aa substitute
substitute for
for the
the equally
equally necessary
necessary oral
oral inquiries.
inquiries. See
S
Pa.R.Crim.P. 631(E) Pa.R.Crim.P. and Pa.R.Crim.P.
631(E) and Pa.R.Crim.P. 632(D).
632(D).
ItItisiswell-settled well-settledPennsylvania
Pennsylvanialaw
lawthat
thatthe
thescope
scopeof
ofvoir
voirdire
direisiswithin
withinthe
thesound
sounddiscretion
discretio
of ofthe thetrial trialjudge.
judge. Id.
Id 588
588Pa.
Pa.atat9,9,902
902 A.2d
A.2datat424
424citing
citingCommonwealth
Commonwealthv.v.McGrew
McGrewsupra
supra375
375Pe.
P .
atat526, 526, 100 100A.2d
A.2datat471.
471. “The
"Theopportunity
opportunitytotoobserve
observethe
thedemeanor
demeanorof
ofthe
theprospective
prospectivejuror
jurorand
andthth;
tenor tenorof ofthe thejuror’s
juror'sanswers
answers isisindispensable indispensabletotothe
thejudge
judgeinindetermining
determiningwhether
whetheraafair
fairtrial
trialcan
canb
b;
had had inin the the community.
community. Claims
Claims of
ofimpartiality
impartiality by
by prospective
prospective jurors
jurors are
are subject
subject toto scrutiny
scrutiny for
f
credibility credibility and and reliability
reliability as
as isis any
any testimony,
testimony, and
and the
thejudgment
judgment of
ofthe
the trial
trial court
court isis necessarily
necessaril
accorded accordedgreat greatweight.”
weight." Commonwealth
Commonwealthv.v. Bachert, Bachert,499
499Pa.
Pa. 398, 409, 453 A.2d
398,409,453 A.2d931, 937 (1982).
931,937 (1982).
These These decisions decisions of
ofthe
the trial
trialjudge
judge concerning
concerning voir
voir dire
dire will
will therefore
thereforenot
notbe
bereversed
reversedin
in tht 3
absence absence of of“palpable
"palpable error.”
error." Commonwealth
Commonwealth v.• Ellison
Ellison supra
supra 588
588 Pa.
Pa. atat 9,9, 902
902 A.2d
A.2d atat 424
424 citing
citin
Commonwealth Commonwealth v.». McGrew McGrew supra
supra 375
375 Pa.
Pa. atat 526,
526, 100
100 A.2d
A.2d atat 471.
471.
ItIt must must be
beremembered
remembered the
thepurpose
purpose of
ofthe
the voir
voir dire
dire examination
examination isisto
toprovide
provide an
an opportunity
opportuni
to to counsel counsel to to assess
assess the
the qualifications
qualifications of
ofprospective
prospectivejurors
jurors to
to serve.
serve. Commonwealth
Commonwealth v.v. Drew
Drew supra
sup
500 500 Pa.
Pa. at at 588, 588, 459
459 A.2d
A.2d at
at 320.
320. ItIt isis thus
thus appropriate
appropriate to
to use
use such
such an
an examination
examination to
to disclose
disclose fixed
fix
opinions opinions or or to to expose
expose other
other reasons
reasons for
for disqualification.
disqualification. Commonwealth Commonwealth v.v. Ingber
Ingber supra
supra 516
516 Pa.
Pa. ill
6, 6, 531 531 A.2d A.2d at at 1103. Hence,
1103. Hence, the
the qualification
qualification inquiries
inquiries must
must be
be directed
directed at
at ascertaining
ascertaining whether
whether tit e
venireperson venireperson isis legally legally competent
competent to
to serve
serve and
and capable
capable of
of rendering
rendering aa fair,
fair, impartial
impartial and
and unbiased
unbias
verdict. verdict. Id.
Id. citing citing Commonwealth
Commonwealth v.v. Johnson Johnson supra
supra 452
452 Pa.
Pa. at
at 130,
130, 305
305 A.2d
A.2d at
at 5.5. See
See also
also 42
Pa.C.S. Pa.C.S. §§4502 §§4502 and and 4503.
4503. The
The question
question relevant
relevant to
to aa determination
determination of
of qualification
qualification generally
generally is
whether whether any any biases biases or
or prejudices
prejudices can
can be
be put
put aside
aside upon
upon the
the proper
proper instruction
instruction of
of the
the couit
co
Commonwealth v.v. Karenbauer, Karenbauer, 552
552 Pa. 420,
420, 438,
438, 715
715 A.2d
A.2d 1086,
1086, 1094
1094 (Pa.
(Pa. 1998);
1998); Commonweal^
Commonweal
v.v. England, 474 474 Pa.
Pa. 1,
1, 7,
7, 375
375 A.2d
A.2d 1292,
1292, 1296
1296 (Pa.
(Pa. 1977).
1977).
Sucha principle Such a principleofof law law recognizes
recognizes that
that thethe frailtyofof
frailty human
human nature
nature whichat at
which times
times nurture
nurture ;
improvident improvident thoughtcan thought can
bebe rehabilitated
rehabilitated byby
thethe interventionofof properintervention proper thethe trialcourt, trial court,asasdiscussed discusse
in the appellate courts. in the appellate courts.
AsAswewerecognized
recognizedabove,
above,thethepurpose
purposeofof thethevoir
voirdire
direexamination
examinationis is
totodisclose
disclosequalifications
qualificationsororlack lackofofqualifications qualificationsofofa juror a jurorand andinin
particular to determine whether a juror has formed a fixed opinion asas particular to determine whether a juror has formed a fixed opinion totothe
theaccused’s
accused'sguilt
guiltororinnocence.
innocence.The Thelaw
lawrecognizes
recognizesthat thatit itwould would
bebeunrealistic
unrealistictotoexpect
expectjurors
jurorstotobebefree
freefrom
fromallallprejudices,
prejudices,a afailing
failing
common to all human beings. We common to all human beings. We can only attempt can only to have them attemptto have them put put aside those prejudices in the performance aside those prejudices in the performance of their duty, the of their duty, the determination of guilt or innocence. We therefore determination of guilt or innocence. We therefore do not expect do not expecta a tabularosa tabula rosa[sic]
[sic]but
butmerely
merelya amindmindsufficiently consciousofofitsitssworn sufficientlyconscious sworn responsibility and willing to attempt to reach a decision responsibility and willing to attempt to reach a decision solely on the solely on the factspresented, facts presented,assiduously assiduouslyavoiding
avoidingthe theinfluences influencesofofirrelevant
irrelevant
factors. factors.
Commonwealthv.v.Drew Commonwealth Drewsupra supra500
500Pa.
Pa.atat589,
589,459
459A.2d
A.2datat320
320quoting Commonwealthv.v.Johnson quotingCommonwealth Johnso supra 452 Pa. at 134-35, 305 A.2d at 7. supra 452 Pa. at 134-35, 305 A.2d at 7.
Thepurpose The purposeofofvoir voirdire
direisistotofacilitate
facilitatethe
theempaneling
empanelingofofa a "competent, fair,impartial, competent, fair, impartial,and
unprejudicedjury” unprejudiced andaatrial jury"and trialcourt’s
court'sdiscretion
discretionconcerning thescope concerningthe scopeofofvoir voirdire
diremust
mustrelatedly
relatedlybe
consideredininlight considered lightofofthe thefactual
factualcircumstances
circumstancesofofaaparticular criminalepisode.”
particularcriminal Commonweal episode." Commonwealth
v.v. Holt, Holt, 273 273 A.3d
A.3d 514,
514, 546
546(Pa.
(Pa. 2022)
2022) quoting Commonwealthv.v. Proctor, quotingCommonwealth Proctor, 526 526Pa.
Pa. 246,
246,257,
257, 585
5
A.2d454, A.2d 454, 460 460 (1991) and Commonwealth (1991) and Commonwealth v.• England supra474 Englandsupra 474Pa.
Pa. atat6,6, 375
375 A.2d
A.2datat 1295.
1295. Tie
T
breadth of breadth ofsuch such scope rests in
scope rests inthe
the sound
sound discretion
discretion of
ofthe
thetrial
trial court,
court, whose
whose decisions
decisions will
will not
notbe
reversed on reversed on appeal absent palpable appeal absent error. Commonwealth palpable error. Commonwealth v.v. Holt Holt supra 273 A.3d
supra 273 A.3d atat 547 547 citirg
citi
Commonwealth v.». Bomar, Commonwealth Bomar, 573 573 Pa. 426, 456,
Pa. 426, 456, 826
826 A.2d
A.2d 831,
831, 849
849 (2003)
(2003) citing
citing Commonwealth
Commonwealth p.
563 Pa. 1, 27, 757 A.2d 859, 872 (2000).
Bridges, 563 Bridges, Pa. 1, 27, 757 A.2d 859, 872 (2000).
During the voir During the voir dire, the court dire, the court instructed instructed the
the jury
jury panel that as
panel that as itit relates relates to
to principles oflaw
principles of 1
all juries all must follow juries must follow the the judge’s instructions. N.T.
judge's instructions. N.T. 5/1 5/11/12, 21. In
p. 21.
1/12, p. In such
such regard,
regard, the
the court
court asked
ask d
the thejurors jurorstotorespond respondtotoaaseries
seriesof
ofquestions
questionsand
andrespond
respondaffirmatively
affirmativelyby
bystanding
standingand
andidentifying
identify in
themselves themselvesby byjuror
jurornumber
numberininorder
ordertotoeffectuate
effectuatefurther
furtherindividual
individualquestioning
questioningififdeemed
deemednecessary
necessat
by bythe thecourt courtand andcounsel.
counsel. See
SeeN.T.
N.T. 5/1 1/12, pp.
5/11/12, pp.24-44;
24-44;and
andId.,
Id,pp.
pp.44-244
44-244(follow-up
(follow-upquestioning]
questioning . .
During During the
thepreliminary
preliminary questioning
questioning of
ofthe
the panel,
panel,juror
jurornumber
numberfour
four(4)
(4) and
andfour
four(4)
(4) other
oth
jurors jurorsstood stoodup uptotoindicate
indicatethat
thatbecause
because“there
"theremay
maybe
be evidence
evidencepresented
presentedatattrial
trialthat
thatthe
thekilling
killingof
Mr. Toby Mr. Toby Gale Gale was
was related
related either
either toto the
the use
use and
and oror the
the sale
sale of
ofdrugs
drugs .
. . that ... that such
such circumstances
circurnstanc
would wouldmake make itit difficult, difficult, ififnot
not impossible
impossible ...... toto be be aa fair
fair and
andimpartial
impartialjuror
juror ...”
... " N.T.
N. T. 5/1 1/12, pp.
5/11/12, p
41-42. 41-42. Juror Jurornumber numberfour
four (4)
(4) did
didnot
notstand
standfor
forany
any of
ofthe
the court’s
court's other
otherquestions
questionstotothe
thepanel.
panel. Witi
Wit
the the subsequent subsequent individual individual voir
voir dire
dire of
ofjurors
jurors who
who stood
stood up
up for
for any
any of
ofthe
the court’s
court's questions,
questions,jurcr
jur r
number number four four (4)
( 4) apparently
apparently and
and inexplicably
inexplicably was
was not
not questioned
questioned further.
further.
Without Without benefit
benefit of
offollow-up
follow-up questions
questions from
from either
either the
the court
court or
or attorneys,
attorneys,juror
juror number
number foir
fo
(4) (4) ultimately ultimately was was placed
placed on
on the
thejury
jury as
as juror
juror number
number two
two (2).
(2). Neither
Neither the
the prosecutor
prosecutor nor
nor defense
defen e
counsel counsel challenged challenged the thejuror
juror atat issue
issue for
for cause
cause nor
nor did
did they
they utilize
utilize one
one of
oftheir
theirperemptory
peremptory challenge
challeng s
to to remove remove the the juror.
juror. See
See N.T.
N.T. 11/14/12,
11/14/12, p.p. 263.
263. The
The prosecutor
prosecutor and
and defense
defense counsel
counsel for
for each
ea
defendant defendant accepted accepted the
thejury
jury as
as being
being properly
properly selected
selected and
and seated.
seated. Id.
Id.,,
p. p. 264.
264. Along
Along with
with the
the othei
oth
jurors jurors selected, selected, now now designated
designated juror
juror number
number two
two (2)
(2) was
was administered
administered the
the oath
oath and
and sworn
sworn in
in as
as a
juror, juror, promising promising to to decide
decide the
the case
case fairly
fairly and
and impartially.
impartially. See
See N.T.
N.T. 5/14/12,
5/14/12, p.
p. 17
17 and
and Pa.R.Crim.?
Pa.R.Crim.
640(B)(“You 640(B)(You do do solemnly
solemnly swear
swear by
by Almighty
Almighty God
God ... [or]
... [or] [.[..
.. do
do declare
declare and
and affirm]
affirm] that
that you
you will
w1
well well and and truly truly try try the
the issue
issue joined
joined between
between the
the Commonwealth
Commonwealth and
and the
the defendant(s),
defendant(s), and
and aattrue
verdict verdict render render according according to
to the
the evidence.”).
evidence."). The
The Defendant’s
Defendant's trial
trial counsel,
counsel, Scott
Scott P.
P. Galloway
Gallowa
Esquire, who the court knows to to be a capable, experienced criminal defense attorney, and one wk
w
is well-versed in the Delaware County jury selection process had no longer retained his case file or
notesfrom notes from juryselection jury selectionsome
sometwelve
twelve(12)
(12)years
yearsearlier.
earlier.HeHehad
hadnonoindependent recollectionofofth independentrecollection thi ;
jurorand juror andcould couldnot
notrecall
recallanything
anythingout
outofofthe
theordinary withthe
ordinarywith thejuror. SeeN.T.
juror.See N.T.11/8/23, 16-3 , 11/8/23,pp.pp.16-35,
48-53. 48-53.
"Exceptas.as.otherwise “Except otherwiseprescribed prescribedbybygeneral
generalrule,
rule,errors
errorsand
andomissions
omissionsininthe
theselection
selectionof
jurors......shall jurors shallnot notconstitute
constitutegrounds
groundstotoset
setaside
asideany
anyjury verdictininany
juryverdict civilororcriminal anycivil criminalmatter matteror
totoarrest, arrest,reverse, reverse,open
openororstrike
strikeany judgmententered anyjudgment enteredonona ajury andthe verdict,and
juryverdict, thetrial trialbybyjury anditsi
juryand
renditionofofa averdict rendition verdictininany anymatter
mattershall
shallconstitute
constitutea awaiver
waiverofofallallsuch
sucherrors
errorsand
andomissions.”
omissions." 424
Pa.C.S.§4527. Pa.C.S. §4527. Prospective Prospectivejuror
jurornumber
numberfour
four(4)
(4)may havecommenced
mayhave commencedvoir
voirdire
direwith
witha abelief
beliefth
tht t
thefacts the factsofofthe thecase
casecould
couldbebedifficult
difficultfor
forhim;
him;however,
however,heheultimately committedwithout ultimatelycommitted withoutan/ an
expressedreservation expressed reservationororequivocation equivocationtotocarrying
carryingout
outhis
hisoath
oathasasaajuror.
juror. AAprospective
prospectivejuror
juror's
s
viewsare
personalviews personal areof ofno
nomoment
momentunless
unlessthese
theseopinions
opinions“ " .
... . aresosodeeply . are embeddedasastotorende deeplyembedded rend r r
thatperson that personincapable ofaccepting incapableof andapplying acceptingand thelaw applyingthe lawasasgiven givenby
bythe
thecourt.
court." Commonwealth
Commonwealth1’.
Holtsupra Holt 273A.3d supra273 A.3d514, 514,547
547(2022)
(2022)quoting Commonwealthv.v.England quotingCommonwealth Englandsupra supra474
474Pa.
Pa.atat375 A.
375A.2d
atat 1296.
1296. “So "Solong
longasasthe
thejuror
jurorisisable
ableto,
to,intends
intendsto,
to, and
andeventually does,adhere eventually does, adheretotothe theinstructions
instructio
onthe on thelaw lawasaspropounded thetrial bythe
propoundedby trialcourt, court,he
heororshe
sheisiscapable ofperforming capableof thejuror's performingthe juror'sfunction function'”
Commonwealth v.v. Holt Commonwealth Holtsupra 273 A.3d supra 273 A.3d atat 547 547 quoting Commonwealth v.v. England quoting Commonwealth Englandsupra 375 A.2d supra 375 A.
at 1296. at 1296.
Moreover, our Moreover, our law
law presumes that aa juror presumes that followed the juror followed the trial trial courts
court's legal
legal instructions
instructio
Commonwealth v.v. Holt Commonwealth Holt supra 273 A.3d supra 273 A.3d at 547-48 citing at 547-48 Commonwealth v.v. Robinson, citing Commonwealth Robinson, 581 581 Pa.
Pa. 154
15
244, 864 A.2d 244, 864 A.2d 460, 513 (2004)
460, 513 and Commonwealth (2004) and Commonwealth v.v. Tedford, Tedford, 598
598 Pa.
Pa. 639,
639, 700,
700, 960
960 A.2d
A.2d 1,1, ; >
(2008). In its (2008). In its final final charge to the
charge to thejury, the court jury, the court emphasized emphasized that
that the
the jurors
jurors were
were without
without fail
fail to
to acce
acce r
and follow and follow his his rulings and instructions rulings and instructions on on the
the law,
law, N.T.
N.T. 5/17/12,
5/17/12, p.
p. 50;
50; to
to be
be true
true to
to the
the solemn
solemn oa.h
oa ,
theytook they tooktototrytrythe thecase
casefairly
fairlyand
andimpartially, N.T.Id.Id.atat54;
impartially,N.T. arriveatata aproper 54;arrive verdictbybyfairly properverdict fairl, ,
justly,and justly, andimpartially impartiallyfinding
findingthe
thetrue
truefacts
factswithout
withoutbeing
beingswayed sympathyororprejudice swayedbybysympathy prejudiceofofany an
kindororinfluenced kind influencedbybyanything anythingoutside
outsideofofthe
theevidence
evidencepresented andthe presentedand thelaw
lawasasinstructed
instructedbybythth3
court, N.T.IdIdatat95.;
court,N.T. 95.;and andtheir
theirdeliberations
deliberationstotobebefree freeofofbias,
bias,prejudice,
prejudice,ororpartiality, N.T.Id.Idst partiality,ininN.T.
103. 103.
Thereisisabsolutely There absolutelynonoindication indicationthat
thatthe
thejuror
juroratatissue
issuehad
hadany
anydifficulty
difficultyfollowing t
followingths
instructionsofofthe instructions thecourt.
court.Nor
Noratatany
anytime
timeduring
duringthe
theDefendant’s
Defendant'strial
trialdid
didthe
thejuror
juroratatissue
issueexpress
expre
anyreservations any reservationsregarding regardinghis
hisability
abilitytotoserve
serveasasa afair
fairand
andimpartial
impartialjuror.
juror. Despite PCRAcounsel’s DespitePCRA counsel']s
cogentargument, cogent argument,the theprejudice
prejudicerequired
requiredfor
forthe
thegrant
grantofofPCRA
PCRArelief
reliefcannot
cannoton
onthis recordbebefound.
thisrecord faun .
VI-B. VI-B. Ineffective Ineffectiveassistance
assistanceof
ofcounsel for failing
counsel/or Jailingtotoobject objecttotothe
theprosecutor’s
prosecutor'spurported
purported
Bruton violation in his closing argument. Bruton violation in his closing argument.
Defendant Anderson Defendant Anderson contends contends he
he was
was denied
denied the
the effective
effective assistance
assistance of
of counsel
counsel when
wh
withoutan without anobjection, theprosecutor objection,the allegedlyviolated prosecutorallegedly violatedthe thefoundational
foundationalreasoning
reasoningunderpinning t
underpinningthe
Brutondecision Bruton decisionby byusing Co-DefendantWhite’s usingCo-Defendant White'sstatement statementasasevidence
evidenceagainst (Anderson). StS e him(Anderson).
againsthim
Defendant's Amended Defendant’s AmendedPCRA PCRA Petition,
Petition, pp. 5-7; and
pp. 5-7; andDefendant’s
Defendant's Memorandum
Memorandum of
ofLaw,
Law, pp. 13-1
pp. 13-13.
See also See also Bruton Bruton v.v. United
UnitedStates
States supra
supra 391
391 U.S.
U.S. at
at 88
88 S.Ct.
S.Ct. 1620.
1620. This
This court
court disagrees.
disagrees.
In his In his 1925(b)
l 925(b) statement
statement of
oferrors,
errors, Defendant
Defendant questions
questions
[wfhether the PCRA [w]hether the PCRA Court Court erred
erred in
infinding
finding that
that Defendant’s
Defendant's trial
trial
counsel was not ineffective under the Sixth Amendment to the counsel was not ineffective under the Sixth Amendment to the United United States Constitution States Constitution andand parallel provisions of parallel provisions of the the Pennsylvania
Pennsylvania
Constitution, in failing to object to the closing argument Constitution, in failing to object to the closing argument of of the the
during which the prosecutor argued that the prosecutor, during which the prosecutor argued that the statement prosecutor, statement
of ofco-defendant
co-defendantDonier
Donier White,
White, redacted
redactedtotoreplace
replaceany
anyreference
referencetoto
Defendant DefendantAnderson
Anderson by
byname,
name,proved
provedDefendant
DefendantAnderson
Anderson's’s guilt
guilt
of First Degree Murder? of First Degree Murder?
Defendant’s Defendant'sStatement StatementPursuant
PursuanttotoPa.R.A.P.
Pa.R.A.P. 1925(b) docketed 1925(b) docketedAugust
August15,
15,2024 - No. 2.2.
2024--No.
Regarding RegardingBruton Brutonsupra,
supra, the
the Superior
SuperiorCourt
Courthas
hasopined:
opined:
In InBruton,
Bruton, the
theUnited
UnitedStates
States Supreme
SupremeCourtCourtheld
heldthat
thataanon-testifying
non-testifying
co-defendant's co-defendant'sconfession, confession,which
whichimplicates
implicatesanother
anotherdefendant
defendantininthe
the
charged offense, is inadmissible against the defendant because itit charged offense, is inadmissible against the defendant because violates violateshis
his Sixth
SixthAmendment
Amendmentright righttoto confront confrontand
andtoto cross-examine
cross-examine
any witnesses testifying against him. However, the Supreme Court any witnesses testifying against him. However, the Supreme Court subsequently subsequentlyheldheldthat
thatthetheConfrontation
ConfrontationClause
Clauseisisnot
notviolated
violatedby
bythe
the
admission of a non-testifying co-defendant's confession where the admission of a non-testifying co-defendant's confession where the statement statementisis redacted
redacted toto eliminate
eliminate anyany reference reference toto the
the defendant
defendant and
and
is accompanied by a limiting instruction. is accompanied by a limiting instruction.
Commonwealth Commonwealth v.v. Freeman, Freeman, 128
128 A.3d
A.3d 1231,
1231, 1244
1244 (Pa.Super.
(Pa.Super. 2015)
2015) citing
citingBruton
Bruton v.v. United
UnitedStates
Stat
supra 391 U.S. at 88 S.Ct. 1620. See also Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 supra 391 U.S. at 88 S.Ct. 1620. See also Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 9 L.Ed.2d 176(1987). L.Ed.2d 176 (1987).
In In examining examining issues
issues surrounding
surrounding aa co-defendant’s co-defendant's confession confession and
and testimony
testimony presented
presented atat a
joint joint trial trial about about the
the same,
same, the
the Pennsylvania
Pennsylvania Supreme
Supreme Court
Court has
has found:
found:
‘The 'The Confrontation
Confrontation Clause
Clause guarantees
guarantees aa criminal
criminal defendant
defendant the the right
right
to cross-examine witnesses. Richardson v. Marsh, 481 U.S. 200, 206 to cross-examine witnesses. Richardson v. Marsh, 481 U.S. 200,206 [107 [107 S.Ct.
S.Ct. 1702,
1702, 95L.Ed.2d
95 L.Ed.2 176] 176] (1987).
(1987). Ordinarily,
Ordinarily, aawitness
witness whosewhose
testimony is introduced at a joint trial is not considered a witness testimony is introduced at a joint trial is not considered a witness ‘against’ 'against' aa defendant
defendant if ifthe
thejury
jury isis instructed
instructed to to consider considerthethe testimony
testimony
only against a co-defendant. This principle is in accord with the only against a co-defendant. This principle is in accord with the wellwell -
established established presumption
presumption that
thatjurors
jurors will
will abide
abide by by their
their instructions.
instructions. In In
Bruton, however, the United States Supreme Court recognized that Bruton, however, the United States Supreme Court recognized that ‘there 'there are
are some
some contexts
contexts inin which
which the the risk
risk that
that thethe jury
jury will
will not,
not, oror
cannot, follow instructions is so great, and the consequences of failure cannot, follow instructions is so great, and the consequences of failure so so vital
vital to
to the
the defendant,
defendant, that
that thethe practical
practical andand human
human limitations
limitations of of
the the jury
jury system
system cannot
cannot be
be ignored.’
ignored.' Bruton
Bruton [supra]
[supra] 391391 U.S.
U.S. at at 135
135
[88 [88 S.Ct.
S.Ct. 1620].
1620]. Accordingly,
Accordingly, ‘[t]he'[t]he Bruton CourtCourt heldheld that, that, ifif aa non¬
non-
testifying testifying co-defendant's co-defendant's confession confession directlydirectly and and powerfully powerfully
implicates the the defendant in in the the crime, thenthen an instruction instruction to to the
the jury
to consider the evidence only against the co-defendant is insufficient, insufficient, essentially as as aa matter of law, to protect the defendant's defendant's confrontation rirights.'
ghts.’ Commonwealth v. Brown, [592 Pa. 376[, 390]] 925 A.2d A.2 147,
157(Pa. 157 (Pa.2007)
2007)(citing
(citing Bruton[supra]
Bruton [supra]391
391U.S.
U.S.at at135-36
135-36[88[88S.Ct.
S.Ct.
1620]). 1620]).
The The UnitedStates
United StatesSupreme Supreme CourtCourt examined examined thethe
perpersese Brutonrule
Bruton rulein in
Richardson, supra, Richardson, supra, and emphasized its narrow scope. Therein, thethe and emphasized its narrow scope. Therein, Courtheld Court heldthat
thatthethe‘Confrontation
'ConfrontationClause Clauseis isnot notviolated violatedbybythethe
admission of a non-testifying co-defendant's confession admission of a non-testifying co-defendant's confession with witha proper a proper
limiting instruction when .. . the confession is redacted limiting instruction when ... the confession is redacted to eliminate to eliminate notonly not onlythe thedefendant's defendant'sname,name,but butany referencetotohishisororher anyreference her existence.' Richardson, 481 U.S. at 211 [107 existence.’ Richardson, 481 U.S. at 211 [107 S.Ct. 1702]. S.Ct. Consistent 1702].Consistent
with the High Court's pronouncement and with the High Court's pronouncement and our own line our own lineofof cases,wewe cases,
have held that substituting the neutral phrase have held that substituting the neutral phrase ‘the guy 'the or 'theother ’ or ‘the guy' other
forthethedefendant’s
guy'for guy’ defendant'sname nameisisananappropriate redaction. See appropriateredaction. See Commonwealth v. Travers, [564 Pa. 362, 372-73], Commonwealth v. Travers, [564 Pa. 362, 372-73], 768 A.2d 845, 851 768 A.2d 845, 851 (Pa. 2001).' (Pa. 2001).’
Commonwealthv. v.Freeman Commonwealth Freemansupra supra128
128A.3d
A.3datat1244 quotingCommonwealth 1244quoting Commonwealthv. v.Cannon, Cannon,2222A.A.3
31
210, 217-18 (2011). 210,217-18 (2011).
Commonwealthv.v.Freeman,
InInCommonwealth Freeman,the theSuperior Courtheld
SuperiorCourt heldthat
thatthe
thereference
referencetotothe
thedefendart
defend
asas“the "thefirst firstguy” and/or“the
guy"and/or "thesecond
secondguy”
guy"was
wasnot
notininerror
errorprovided thetrial
providedthe trialcourt
courtdirected
directedthe
thejur/
j
thatthe that theconfession confessionwas
wastotobebeused
used solely
solelyasas evidence
evidenceagainst thedefendant againstthe defendantthat thatproffered t
profferedthe
statement and statement and not not soso considered
considered against
against his
his co-defendant. Id. 128 co-defendant. Id. 128 A.3d A.3d atat 1244. See also 1244. See al
Commonwealth v.». Travers Commonwealth Traverssupra, supra; Commonwealth
Commonwealth v.v. McGlone, McGlone, 716
716A.2d
A.2d 1280,
1280, 1286
1286 (Pa.Supe:.
(Pa.Supe.
andPa.SSJI(Crim)
1998);and 1998); 3.12. These Pa.SSJI(Crim)3.12. Thesereferences referencestoto“the
"theother
otherperson”
person"ororsimilar
similargeneric
genericpronours
prono1 [s
areclearly are notimproper clearlynot improperasasthe the same
samehas
has been
beenheld
heldtotobe
bepermissible
permissibleso
so long
longasasthe
thecourt
courtinstruc
instrucs
the jury the jury toto consider consider such
such testimony only inin regard testimony only regard toto the the defendant
defendant who
who uttered
uttered the
the statement.
stateme
Commonwealth v.v. Freeman Commonwealth Freeman supra supra 128
128A.3d
A.3datat 1244 quotingCommonwealth 1244 quoting Commonwealthv.v. Cannon Cannonsupra,
supra, 22
A.3d at 217-18. A.3dat217-18.
Defendant Anderson Defendant Anderson and and Co-Defendant
Co-Defendant White
White were
were both
both charged
charged under
under their
their respective
respecti
information based information based on on their
their alleged involvement in alleged involvement in the the murder
murder of
of Toby
Toby Gale,
Gale, their
their supposed
supposed friend.
frien
and andsubsequent subsequentdisposal disposalof
ofthe
thedeceased’s
deceased's(Mr.
(Mr.Gale)
Gale)body.
body. Counsel
Counselwith
withassistance
assistancefrom
fromthe
thecour:,
co ,
crafted craftedan anunderstanding understandingthrough
throughwhich
whichthe
thestatements
statementsof
ofeach
eachdefendant
defendantwere
wereredacted.
redacted. Copies
Copiescf
each eachDefendants’
Defendants'redacted redactedstatements
statementsasasagreed
agreedupon
uponby
bycounsel
counselwere
weremade
madepart
partof
ofthe
therecord.
record. See
Se
N.T. N.T. 5/15/12, 5/15/12, pp.
pp. 180-81
180-81 and
and 188-89
188-89 ---Commonwealth
Commonwealth Exhibits
Exhibits C-31
C-31 through
through C-34;
C-34; and
andN.I'.
N.
5/16/12, 5/16/12,pp.
pp. 119-22,
119-22, 126-29 - Commonwealth Exhibits 126-29-Commonwealth ExhibitsC-41 C-41 through
throughC-44.
C-44.
Initial Initial statements statements were
were provided
provided toto Chester
Chester City
City Police
Police Detective
Detective James
James Nolan
Nolan (now
(no
Delaware Delaware County County Chief
Chiefof
ofthe
the District
DistrictAttorney’s
Attorney's Criminal
Criminal Investigation
Investigation Division
Division (CID))
(CID))on
onAprl
April
21, 21, 2011.
2011. The The following
following day
day (April
(April 22,
22, 2011)
2011) both
both defendants
defendants gave
gave more
more detailed
detailed statements
statements to
Delaware Delaware County County CID
CID Homicide
Homicide Detective
Detective Michael
Michael Jay. Id.
Jay. Id.
Recognizing Recognizing the the testimony
testimony substituting
substituting Defendant
Defendant Anderson
Anderson as
as “the
"the other
other person”
person" or
or “he
"h":
during during the the evidentiary evidentiary presentation
presentation of
ofthe
the co-defendant’s
co-defendant's statement
statementper
per Mr.
Mr. White
Whitehas
hasbeen
beenheld
held by
the the appellate appellate courts courts to
to be
be an
an acceptable
acceptable redaction
redaction and
and this
this court
court relatedly
relatedly charged
charged the
thejury
jury with
with the
relevant, relevant, requisite requisite instruction
instruction limiting
limiting its
its consideration
consideration of
ofCo-Defendant
Co-Defendant White’s
White's statement
statement only
only Io
the the question question of ofhis
his guilt,
guilt, these
these references
references were
were constitutionally
constitutionally proper.
proper. Commonwealth
Commonwealth v.v. Freeman Freem
supra supra 128 128 A.3d A.3d at
at 1244
1244 quoting
quoting Commonwealth
Commonwealth v.v. Cannon
Cannon supra
supra 22
22 A.3d
A.3d at
at 217-18;
217-18; Cf
Commonwealth Commonwealth v.v. Travers Travers supra
supra 564
564 Pa.
Pa. at
at 369,
369, 768
768 A. 2d at
A.2d at 849.
849. See
See also
also Pa.
Pa. SSJI(Crim)
SSJl(Crim) 3.12.
3.12.
The The court court while
while charging
charging the
the jury
jury provided,
provided, inter
inter alia,
alia, the
the following
following instruction:
instruction:
The The Court:
Court:
... Regarding
Regarding each
each [defendant}
[defendant] you you may
may not
not
consider any
any statement
statement either Mr.Mr. Anderson Anderson and/or
and/or
Mr. White allegedly
allegedly made asas evidence against that Defendant Defendant unless
unless you
you find
find that
that the
the Defendant,
Defendant, in
in
fact, made the statement. ...
...
***
kkk
......[T]here’s
[T]here'saarule ruleof
oflaw
lawthat thatrightly
rightlyrestricts
restrictsuse
use
by you of the evidence offered to show that a certain by you of the evidence offered to show that a certain Defendant
Defendantmade madeaastatement statementconcerning
concerningthe thecrimes crimes
charged.
charged. AA statementstatement made made before before trialtrial may may bebe
considered as evidence only against the Defendant considered as evidence only against the Defendant who
whomade madethe
thestatement.
statement. Thus,
Thus,you youmaymayconsider considerasas
evidence the statements of Mr. - - evidence the statements of Mr. - - the statements Mr.
the statements Mr.
Anderson
Anderson allegedly
allegedly mademade toto police police detectives
detectives onlyonly
Mr.
against Mr. Anderson. ...
against Anderson. . . . Equally, you may Equally, you may consider
consider as as evidence evidence thethe statements statements Mr. Mr. White White
supposedly made to police detectives only against supposedly made to police detectives only against Mr.
Mr. White,
White,again
againassuming
assumingyou’ve you'veconcluded concludedhe heinin
fact made those statements and such statements fact made those statements and such statements were were voluntary.
voluntary. However,
However, you you must must notnot consider consider
Mr.
Mr. White’s
White's statements
statements as as evidence evidence against against Mr.Mr.
Anderson.
Anderson. You must not use the supposed You must not use the supposed statement
statementof ofMr.
Mr. White
Whitemade
madetotopolice policeinvestigators investigators
in any way against Mr. Anderson. in any way against Mr. Anderson.
N.T. N.T. 5/17/12, 5/17/12,pp. pp. 86, 86,91-92.
91-92. (Emphasis
(Emphasis added).
added). SeeSeealso
alsoN.T.
N.T. 5/17/12,
5/17/12,pp.
pp. 86-93
86-93 (Jury
(Jury instruction
instructio
pertaining pertaining toto determining determiningvoluntariness
voluntariness of
ofthe
the statements
statements if,
if, in
in fact,
fact, made
madeinintheir
their entirety).
entirety).
“Absent "Absent evidence
evidence to
to the
the contrary,
contrary, the
the jury
jury isis presumed
presumed to
to have
have followed
followed the
the trial
trial court'
court s
instructions.” instructions." Commonwealth Commonwealth v.». O’Hannon, O'Hannon, 557
557 Pa.
Pa. 256,
256, 262,
262, 732
732 A.2d
A.2d 1193,
1193, 1196
1196 (1999)
(1999) citing
citi
Commonwealth Commonwealth v.v. LaCava, LaCava, 542
542 Pa..
Pa. 160,
160, 182, 666 A.2d
182,666 A.2d 221,
221, 231
231 (1995);
(1995); Commonwealth
Commonwealth v.v. Brown,
Brow
567 567 Pa.
Pa. 272, 272, 289, 289, 786
786 A.2d
A.2d 961,
961, 971
971 (2001)
(2001) citing
citing Commonwealth
Commonwealth v.v. Travers Travers supra
supra citing
citi
Commonwealth v.». Travaglia, Commonwealth Travaglia, 541 541 Pa.
Pa. 108, 661 A.2d
108,661 A.2d 352
352 (1995);
(1995); and
and Commonwealth
Commonwealth v.v. Spotz
Spotz supra
sup
587 587 Pa.
Pa. at at 57, 57, 896
896 A.2d
A.2d 1t 1224
1224 quoting
quoting Commonwealth
Commonwealth v.v. Brown
Brown supra
supra 567
567 Pa.
Pa. at
at 289,
289, 786
786 A.2d
A.2d at
{t
871 871 and Commonwealth v.». 0’Hannon and Commonwealth O 'Hannon supra supra 557
557 Pa.
Pa. at
at 262,
262, 732
732 A.2d
A.2d at
at 1196.
1196. See See also
al J
Commonwealth Commonwealth v.v. Becher, Becher, 293
293 A.3d
A.3d 126,
126, 1240
1240 (Pa.Super
(Pa.Super 2023)(“It
2023)("It is
is well
well settled
settled that
that aa jury
jury j
presumed presumed to to follow follow the
the trial
trial court’s
court's instructions.”)
instructions.") quoting Commonwealth Commonwealth v.v. Cash,
Cash, 635
635 Pa.
Pa. 45
45 1,
137 137 A.3d A.3d 1262, 1262, 1280
1280 (Pa. 2016); Commonwealth v. Patterson, 180 180 A.2d
A.2d 1217,
1217, 1228
1228 (Pa.Super
(Pa.Sup
201 8)(“ Absent evidence 2018)("Absent evidencetotothe thecontrary,
contrary,the
thejury
juryisispresumed
presumedtotohave
havefollowed
followedthe
theinstructions
instructionscf
the thecourt.”)
court.")quoting quotingCommonwealth
Commonwealthv.v. Spotz
Spotzsupra
supra 587
587Pa.
Pa. atat 57,
57, 896
896 A.2d
A.2dt t 1224
1224 and
andciting
citin
Commonwealthv.•0O'Hannon Commonwealth 'Hannonsupra 732A.2d supra732 A.2datat1196.
1196.
Here, Here,the theprosecutor
prosecutordid
didnot
notcommit
commitaaBruton
Brutonviolation
violationby
byidentifying
identifyingDefendant
DefendantAnderson
Anderso
asasbeing beingthe the“he”
"he"(other
(otherperson)
person)ininCo-Defendant
Co-DefendantWhite’s
White'sstatement.
statement. See
SeeN.T.
N.T. 5/17/12,
5/17/12,pp.
pp.35-36
35-3
Rather, Rather,he heshowed showedhow
howCo-Defendant
Co-DefendantWhite’s
White'sstatement
statementproved
provedtotobe
beconsistent
consistentwith
withthe
theforensic
forensi
testimony testimonyand andthat
thatof
ofthe
themedical
medicalexaminer
examinerand
andimmediately
immediatelyused
useditittotoargue
arguethat
thatthe
theCo-Defendant
Co-Defend
(White)was (White) wasguilty guiltyof
ofmore
morethan
thanjust voluntarymanslaughter.
justvoluntary Id.
manslaughter. Id.
Unfortunately Unfortunately for for the
the Defendant,
Defendant, that
that same
same forensic
forensic and
and medical
medical evidence
evidence showed
showed that
th t
Defendant DefendantAnderson Andersonused
usedaaclaw
clawhammer
hammeron
onToby
Toby Gale’s
Gale's head
headnot
not once,
once, but
buttwice,
twice, and
andthen
thenwhite
whi
the the deceased deceased was was still
still alive
alivetied
tied him
himup,
up, placed
placed him
him in
in aatrash
trashbag,
bag, and
and threw
threw him
himinto
into aa field
field like
like a
piece pieceof ofgarbage.
garbage. Failing
Failingto
to call
call“911” and cleaning
"911 and cleaningup
upthe
thecrime
crime scene
scene also
also contributed
contributedtotothe
thejury’s
jury s
rejection ofDefendant rejection of Defendant Anderson’s Anderson's claim
claim of
ofmistaken
mistaken self-defense.
self-defense.
Trial Trial counsel’s
counsel's decision
decision not
not to
to dwell
dwell on
on such
such evidence
evidence by
by lodging
lodging an
an objection
objection wts
w
reasonable reasonable and and no
no prejudice
prejudice can
canbe
be demonstrated
demonstrated by
by not
not raising
raising aa meritless
meritless objection.
objection. See
See N.T.
N.T. 1
111/8
23, 23, pp.
pp. 41-47, 41-47, 55-6.
55-6. See
See also
also Commonwealth
Commonwealth v.v. Fears
Fears sypra
supra 86
86 A.3d
A.3d at
at 804
804 citing
citing Commonwealth
Commonweal
v.». Washington Washington supra supra 927
927 A.2d
A.2d at
at 603
603 (citations
(citations omitted)(“
omitted)(" ...
... [C]ounsel
[C]ounsel cannot
cannot be
be deemed
deem
ineffective ineffective for for failing
failing to
to raise
raise aa meritless
meritless claim[]
claim[] or
or failing
failing to
to perform
perform aa futile
futile act.”);
act."); Commonwealth
Commonweal
v.v. Busanet Busanet supra supra 54
54 A.3d
A.3d at
at 46;
46; Commonwealth Commonwealth v.v. Fulton
Fulton supra
supra 830
830 A.2d
A.2d at
at 572,
572; and
Commonwealth Commonwealth v.
v. Spotz
Spotz supra
supra 896
896 A.2d
A.2d at 1210 (“Counsel will not be deemed ineffective 1210("Counsel ineffective for failin faili g
to raise to raise aa meritless meritless claim.”)
claim.")
VI-C. VI-C. Ineffective Ineffective assistance assistance of
of counsel for failing
counsel/or failing to
to object
object during
during the
theprosecutor’s
prosecutor's closing
closing
argument. argument.
The The Defendant Defendant also
also maintains
maintains that
that his
his trial
trial lawyer
lawyer was
was professionally
professionally incompetent incompetent for
for failin
failin
to to object object to to the
the prosecution’s
prosecution's closing
closing argument
argument where
where the
the assistant
assistant district
district attorney
attorney purportedly
purportedly used
use
inflammatory inflammatory and and prejudicial
prejudicial language.
language. See
See Amended
Amended PCRA
PCRA Petition
Petition docketed
docketed August
August 31,
31, 2022,
202 ,
pp. pp. 7-9.
7-9. Trial Trial counsel’s counsel's failure
failure to
to do
do so
so waived
waived the
the issue
issue for
for appellate
appellate purposes.
purposes. In
In support
support of
oftthis
collateral collateral claim, claim, PCRA
PCRA counsel
counsel references
references the
the comment
comment the
the prosecutor
prosecutor offered
offered during
during his
summation summation pertaining pertaining to
to the
the Defendant’s
Defendant's statement
statement to
to the
the police
police and
and how
how itit was
was all
all lies,
lies, not
not worti
wort
the the paper paper on on which
which itit was
was written,
written, and
and should
should be
be used
used to
to line
line the
the cat
cat (litter)
(litter) box.
box. See
See N.T.
N.T. 5/17/12,
5/17/1 ,
pp. pp. 30-32;
30-32; Defendant’s Defendant's Amended
Amended PCRA
PCRA Petition
Petition docketed
docketed August
August 31, 2022, pp. 7-9; ani
Defendant’s Defendant's Memorandum Memorandum of
of Law
Law filed
filed January
January 2,
2, 2024,
2024, pp.
pp. 18-21.
18-21.
In In his his 1925(b)
1925(b) Statement
Statement Defendant
Defendant Anderson
Anderson posits:
posits:
[wjhether [wJhether thethe PCRA
PCRA Court
Court erred
erred in
in finding
finding that
that Defendant’s
Defendant's trial
trial
counsel counsel was
was notnot ineffective
ineffective under
under the
the Sixth
Sixth Amendment
Amendment to to the
the United
United
States States Constitution
Constitution and and parallel parallel provisions
provisions of of the
the Pennsylvania
Pennsylvania
Constitution, Constitution, in in failing failing to to object
object to
to prejudicial
prejudicial andand inflammatory inflammatory
remarks remarks made
made by by the
the prosecutor
prosecutor during
during closing
closing argument,
argument, in in which
which
the the prosecutor
prosecutor referred
referred to to Defendant’s Defendant's statement
statement to to police
police as as lies,
lies,
purported purported to to cross
cross examine
examine Defendant
Defendant's ’s statement statement asas if
ifDefendant
Defendant
had had actually
actually testified
testified and
and offered
offered that
that Defendant
Defendant's ’s statement
statement should
should
be used to ‘Une the cat box’’, where counsel had no reasonable basis be used to 'line the cat box", where counsel had no reasonable basis to to forego
forego an an objection
objection to to the
the remarks,
remarks, and and the
the Defendant
Defendant was was
prejudiced prejudiced in
in that
that the
the remarks
remarks of
of the
the prosecutor
prosecutor were
were of
of such
such aa
nature nature as
as to
to form
form in in the
the minds
minds ofof the
the jurors
jurors aa fixed
fixed bias
bias against
against the
the
Defendant? Defendant?
Defendant’s Defendant's Statement Statement Pursuant
Pursuant to
to Pa.R.A.P.
Pa.R.A.P. 1925(b)
1925(b) docketed
docketed August
August 15,
15, 2024
2024 -No.
--No. 3.
3.
AsAs thethe Defendant's
Defendant’s trial
trial counsel
counsel hadhad
anan eminently
eminently reasonable
reasonable basis
basis forfor
notnot
objecting to tot
objecting the
remarks, remarks, this this ineffective ineffective assistance
assistance allegation
allegation is is without
without merit.AsAs
merit. well, thethe
well, prejudice
prejudice required fcrfr
required
any relief cannot be demonstrated. any relief cannot be demonstrated.
The The PennsylvaniaSuperior Pennsylvania Superior Court Court hasheld
has heldthat
thatcomments
commentsmade
madeduring a closingargument duringa closing argume t
“ «...must must bebeconsidered
consideredinin
thethecontext
contextofof
thetheentire
entiresummation.” Commonwealthv. v.Johnson, summation."Commonwealth 71 Johnson,719
A.2d778, A.2d 778,790 790(Pa.Super.
(Pa.Super.1998), appealdenied, 1998),appeal denied,559 559Pa.Pa.689,
689,739
739A.2d
A.2d1056
1056(1999). Seealso
(1999). See al
Commonwealthv. v.Santiago-Burgos, Commonwealth Santiago-Burgos,314 314A.3d
A.3d535,
535,547
547(Pa.Super.
(Pa.Super.2024); Commonwealthv. v.Scot', 2024);Commonwealth Seo ,
212A.3d 212 A.3d1094, 1094,1110
1110(Pa.Super.
(Pa.Super.2019)(The courtmust 2019)(Thecourt mustreview reviewa achallenged comment“not challengedcomment "notin·
isolationbut isolation butininthe thecontext
contextininwhich
whichit itwas
wasmade.”); Commonwealthv. •Ligons, made.");Commonwealth 565Pa.
Ligons,565 Pa.417, 43 417,430,
773A.2d 773 A.2d1231, 1231,1238
1238(2001);
(2001);and Commonwealthv. v.Brown, andCommonwealth Brown;911 911A.2d
A.2d576,
576,579
579(Pa.Super. 200
(Pa.Super.2006)
citingCommonwealth citing Commonwealthv.v.Sampson, Sampson,900
900A.2d
A.2d887,
887,890
890(Pa.Super.
(Pa.Super.2006)
2006)quoting Commonwealth■>.
quotingCommonwealth
Correa,444 Correa, 444Pa.Super.
Pa.Super.621,
621,624,664 A.2d607,
624, 664 A.2d 607,609
609(1995). TheSuperior
(1995). The Commonweal CourtininCommonwealth
SuperiorCourt
v.v.Raffensberger, Raffensberger,291 291Pa.Super. 193,207,
Pa.Super.193, 207,435
435A.2d
A.2d864,
864,870-71
870-71(1981)
(1981)found
foundthat
thatthe
thescope
scopeofofth s
contextualreview contextual reviewextends extendseven
evenfurther
furthertotoinclude
includethe
thecontents
contentsofofthe
theentire
entirecase.
case.( ("...... [A]llegedly [A ]lleged
remarksmust
prejudicialremarks prejudicial mustbe beread
readininthe
thecontext
contextof
ofthe
thecase
caseasasaawhole,
whole,with
withaaparticular viewtotothe particularview t
evidencepresented evidence andreasonable presentedand reasonableinferences inferencesdrawn
drawntherefrom,
therefrom,ininorder
ordertotodetermine
determinewhether
whetherthey
th
areindeed are indeedprejudicial.” Id.). See prejudicial."Id.). See also also Commonwealth
Commonwealth v.v. Boone,
Boone,286
286Pa.Super.
Pa.Super. 384,
384, 398-400,
398-400, 428
4
AA.2d 1382, 1389-90 2d 1382, 1389-90 (1981).- Seegenerally (1981). See Commonwealthv.v. Bullock, generallyCommonwealth Bullock,284 284Pa.Super.
Pa.Super. 601,
601,426
426A.^c
A.
657 (1981). 657 Review of (1981). Review ofprosecutorial remarks requires prosecutorial remarks the court requires the court “to
"to evaluate
evaluate whether
whether aa defendant
defenda
received aafair received fairtrial trial rather
ratherthan
than aaperfect
perfect one.” Commonwealth v.v. Rios, one." Commonwealth Rios, 554 554 Pa.
Pa. 419,
419, 721
721 A.2d
A.2d 104
104 1
1054 (1998)(czte<7 1054 in Santiago-Burgos (1998)(cited in supra) and Santiago-Burgos supra) Commonwealth v.• Woeber, and Commonwealth Woeber, 174 174 A.3d
A.3d 1096,
1096, ll(')
11
(Pa.Super. 2017)(same). (Pa.Super. 2017)(same).
During Duringthe the course
course of
ofclosing
closing summations,
summations, “(t]he
"[t]heprosecutor
prosecutorisisfree
free to
to argue
arguethat
thatthe
the evidence
evidenc
leads leads to to the the conclusion
conclusion of
ofguilt,
guilt, and
and isis permitted
permitted to
to suggest
suggest all
all favorable
favorable and
and reasonable
reasonable inferences
inferenc
that that arise arise from from the
the evidence.”
evidence." Commonwealth
Commonwealth v.v. Chamberlain, Chamberlain, 612
612 Pa.
Pa. 107,
107, 153,
153, 30
30 A. 3d 381,
A.3d 381, 40?
40
(2011) (2011) citing citing Commonwealth Commonwealth v.v. Sam,
Sam, 535
535 Pa.
Pa. 350,
350, 362,
362, 635
635 A. 2d 603,
A.2d 603, 608
608 (1993).
(1993). A
A new
newtrial
trial wi.l
will
not not be be considered considered necessary necessary “[w]here
"[w]here the
the prosecutor's
prosecutor's arguments
arguments are
are supported
supported by
by the
the evidence
evidence anl
an
contain contain inferences inferences which which are
are reasonably
reasonably derived
derived therefrom.”
therefrom." Id.
Id. citing
citing Commonwealth
Commonwealth v. .
Bronshtein, Bronshtein, 547 547 Pa.
Pa. 460, 485, 691 A.2d
460,485,691 A.2d 907, 919 (1997).
907,919 (1997). See
See also
also Commonwealth
Commonwealth v.v. LaCava
LaCava supri
supr
542 542 Pa.
Pa. at at 181, 181, 666
666 A.2d
A.2d at
at 231
231 and
and Commonwealth
Commonwealth v.v. Hardcastle, Hardcastle, 519
519 Pa.
Pa. 236,
236, 254,
254, 546
546 A.21
A.2
1101, 1101, 1109 1109 (1988).
(1988).
Furthermore, Furthermore, “[t]he "[t]he prosecutor
prosecutor may
may ...
... argue
argue to
to the
the jury
jury that
that the
the evidence
evidence establishes
establishes the
guilt guilt of of the the defendant defendant and
and that
that certain
certain facts
facts in
in evidence
evidence are
are conclusive
conclusive of
of such
such guilt.”
guilt. '
Commonwealth Commonwealth v.v. Kaufman, Kaufman, 307
307 Pa.Super.
Pa.Super. 63,
63, 71,
71, 452
452 A. 2d 1039,
A.2d 1039, 1043
1043 (1982)
(1982) citing
citin
Commonwealth Commonwealth v.v. Oglesby, Oglesby, 274
274 Pa.Super.
Pa.Super. 586,
586, 595,
595, 418
418 A.2d
A.2d 561, 565 (1980).
561,565 (1980). A
A prosecutor
prosecutor during
duri
the the course course of of his
his closing
closing summation,
summation, may
may as
as well
well"..... . attempt
attempt to
to meet
meet the
the arguments
arguments made
made by
b
defense defense counsel counsel in in his
his summation.”
summation." Commonwealth
Commonwealth v.v. Kelly,
Kelly, 319
319 Pa.Super.
Pa.Super. 204,
204, 211,
211, 465 A.2d
A.2
1301, 1301, 1305 1305 (1983)
(1983) citing
citing Commonwealth
Commonwealth v. Van
Van Cliff,
Cliff, 483
483 Pa.
Pa. 576,
576, 584,
584, 397
397 A.2d
A.2d 1173,
1173, 1177
11
(1979). (1979). See See also also Commonwealth v.v. Robinson Robinson supra 583
583 Pa.
Pa. at
at 383,
383, 877
877 A.2d
A.2d at
at 448
448 citing
citi
Commonwealth v.
v. Trivigno,
Trivigno, 561
561 Pa.
Pa. 232, 244, 750
232,244, 750 A.2d
A.2d 243,
243, 249
249 (2000).
(2000). See also Commonwealth Commonweal
v. Hardcastle supra supra 519 Pa. at 254, 546 A.2d at 1109 quoting Commonwealth v. Barren, 501 Pa.
P .
493, 498, 462 A.2d 233, 235 (1983).
In In aa closing
closing argument,
argument, “"...
... it
it is
is improper
improper for
for aa prosecutor
prosecutor to
to offer
offer any
any personal
personal opinion
opinion cis
to the guilt guilt of the defendant or the credibility of the witnesses .
....
. [;]”
[;]" however, an assistant district distri
attorney attorney may may “. .. summarize " ... summarize the
the evidence
evidence presented,
presented, to
to offer
offer reasonable
reasonable deductions
deductions and
and inference
inference s
from from the the evidence, evidence, and and to
to argue
argue that
that the
the evidence
evidence establishes
establishes the
the defendant's
defendant's guilt.”
guilt." Commonwealth
Commonwealt
v.v. Thomas, Thomas, 618 618 Pa.
Pa. 70,
70, 54
54 A.3d
A.3d 332, 338 (2012)
332,338 (2012) citing
citing Commonwealth
Commonwealth v.v. Hutchinson, Hutchinson, 611
611 Pa.
Pa. 280,
28 ,
25 25 A.3d A.3d 277, 307 (201 277,307 1) and (2011) and Commonwealth
Commonwealth v.• Chamberlain Chamberlain supra
supra 612
612 Pa.
Pa. at
at 152,
152, 30
30 A.3d
A.3d at
at 408.
40 .
The The accepted accepted goal goal of
of the
the prosecutor’s
prosecutor's closing
closing summation
summation is
is to
to “" ...
... present
present the
the facts
facts in
in aa manner
manne
that that will will lead lead the
the jury
jury to
to aa dispassionate
dispassionate and
and objective
objective evaluation
evaluation of
of those
those facts
facts and
and will
will produce
produce a
judgment judgment warranted warranted by by the
the evidence.”
evidence." Commonwealth
Commonwealth v.v. Turner, Turner, 390
390 Pa.Super.
Pa.Super. 216, 222, 568 A.2d 216,222,568 A.2
622, 622, 625 625 (1989)
(1989) citing citing Commonwealth
Commonwealth v.v. Davis,
Davis, 363
363 Pa.Super.
Pa.Super. 562,
562, 583,
583, 526
526 A.2d
A.2d 1205,
1205, 1216
121
(1987), (1987), allocatur allocatur denied, denied, 518
518 Pa.
Pa. 624,
624, 541
541 A.2d
A.2d 1135 (1988).
1135 (1988).
A A Commonwealth’s Commonwealth's attorney attorney will
will not
not be
be found
found to
to have
have advocated
advocated impermissibly
impermissibly and
and hence
henc
committed committed “reversible "reversible error”
error" during
during his
his closing
closing"“....
.. unless
unless the
the unavoidable
unavoidable effect
effect of
of such
such comments
comment
would would be be to to prejudice prejudice the
the jury,
jury, forming
forming in
in their
their minds
minds fixed
fixed bias
bias and
and hostility
hostility toward
toward the
the defendant
defend
so so that that they they could could not
not weigh
weigh the
the evidence
evidence objectively
objectively and
and render
render aa true
true verdict.”
verdict." Commonwealth
Commonwealth v
Nicholson, Nicholson, 308 308 Pa.Super.
Pa.Super. 370,
370, 384,
384, 454
454 A.2d
A.2d 581,
581, 588
588 (1982)
(1982) quoting
quoting Commonwealth
Commonwealth v.v. McNeai, McNea,
456 456 Pa.
Pa. 394, 394, 400, 400, 319
319 A.2d
A.2d 669,
669, 673
673 (1974).
(1974). Commonwealth
Commonwealth v.v. Epps,
Epps, 240
240 A.3d
A.3d 640,
640, 646
646 (Pa.Supei.
(Pa.Supe .
2020). 2020). See See also also Commonwealth
Commonwealth v.
v. Boone,
Boone, 287
287 Pa.Super.
Pa.Super. 1,
1, 6,
6, 428
428 A.2d
A.2d 1382,
1382, 1389
1389 (1981);
(1981 ;
Commonwealth Commonwealth v.v. Ligons Ligons supra
supra 565
565 Pa.
Pa. at
at 430,
430, 773
773 A.2d
A.2d at
at 1238
1238 citing
citing Commonwealth
Commonwealth v.». Morales, Morale ,
549 549 Pa.
Pa. 400, 400, 423, 423, 701
701 A.2d
A.2d 516,
516, 527-28
527-28 (1997);
(1997); and
and Commonwealth
Commonwealth v.v. Turner
Turner supra
supra 390
390 Pa.Super.
Pa.Supe.
at at 223, 223, 568 568 A.2d A.2d at
at 625
625 (Referred
(Referred to
to in
in Turner
Turner as
as the
the “unavoidable
"unavoidable prejudice
prejudice test”).
test"). “" ‘Whether
'Whether i
reversal reversal of ofjudgment judgment is
is required
required depends
depends on
on whether
whether the
the remarks
remarks made
made by
by the
the prosecutor
prosecutor are
are of
of sue.
sue i
aa nature nature that that they
they would
would seriously
seriously threaten
threaten the
the jury’s
jury's objectivity
objectivity and
and deprive the accused
deprive the accused of
of aa fair
fai
trial.’ trial.' ”" Commonwealth Commonwealth v.
». Gruff,
Gruff, 822
822 A.2d
A.2d 773,
773, 782
782 (Pa.Super.
(Pa.Super. 2003)
2003) quoting
quoting Commonwealth
Commonwealth v.
Carter, Carter,537 537Pa.
Pa.233, 264, 643
233,264, 643A.2d61,
A.2d 61,7676(1994).
(1994). The
Thecourt
courtininCommonwealth
Commonwealthv.v.Guilford
Guilfordrelatedl/
relatedl
held heldthat that“[a]
"[a]new
newtrial
trialisisnot
notmandated
mandatedevery
everytime
timeaaprosecutor
prosecutormakes
makesan
anintemperate
intemperateororimproper
improp r
remark.” remark."Commonwealth Commonwealthv.v.Guilford, Guilford,861
861A.2d
A.2d365, 371 (Pa.Super.
365,371 (Pa.Super.2004).
2004). See
Seealso
alsoCommonwealth
Commonwealt
v.•Ervin, Ervin,766 766A.2d
A.2d859,
859,864
864(Pa.Super.
(Pa.Super.2000).
2000).
The The decision decisionasastotothe
theprejudicial
prejudicial quality
quality of
ofthe
the statements
statements by
by the
theprosecution
prosecution offered
offerediai
summation summationisisfor forthe
thetrial
trialjudge. Commonwealthv.v. Williams, judge. Commonwealth Williams, 289 289Pa.Super.
Pa.Super. 388,
388, 393,
393, 433
433 A.21
A.2
505, 505, 508 508 (1981)
(1981) citing
citing Commonwealth
Commonwealth v.• Stoltzfus, Stoltzfus, 462
462 Pa.
Pa. 43,
43, 61,
61, 337
337 A.2d
A.2d 873,
873, 882
882 (1975
(1975 .
Moreover, “ ......the Moreover," theremedy remedytotobe
beapplied
appliedinineach
eachcase
caseisiswithin
withinthe
thediscretion
discretionof
ofthe
thetrial
trialjudge.”
judge." Id.
Ji .
See See also also Commonwealth Commonwealth v.v. Silvis, Silvis, 445
445 Pa.
Pa. 235,
235, 237,
237, 284
284 A.2d
A.2d 740,
740, 741
741 (1971).
(1971). Finally,
Finally, like
like the
t
defense, defense,the theprosecution
prosecutionisis accorded
accordedreasonable
reasonable latitude
latitude and
andmay
may employ
employ oratorical
oratorical flair
flairininarguing
arguin
its itsversion versionof ofthe
thecase
caseto
tothe
thejury.
jury. “The
"Thebounds
boundsof
of‘oratorical
'oratoricalflair’
flair' afford
affordthe
theprosecution
prosecutionsigniftcar
signific tit
leeway leeway in inthis thisregard.
regard .... Commonwealthv.v. Anderson, ...”" Commonwealth Anderson,_ _A. 3d _
A.3d __2024
2024 Pa.Super.
Pa.Super. 271,
271, 202
2021
WL WL 4759146, 4 (filed 4759146, *4 (filed 11/13/24). See 11/13/24). See also
also Commonwealth
Commonwealth v.v. Henry,
Henry, 550
550 Pa.
Pa. 346,
346, 706
706 A.2d
A.2d 31:
31.,,
330-31 330-31 (1997)(Reference (1997)(Reference to to defense
defense being
being “ridiculous”
"ridiculous" did
did not
not constitute
constitute misconduct
misconduct or
or warrai.t
warr t
relief); relief); Commonwealth Commonwealth v.v. Faulkner, Faulkner, 528
528 Pa.
Pa. 57,
57, 595
595 A.2d28
A.2d 28 (1991)(Prosecutor (1991)(Prosecutor calling calling the
the defense
defen
“stupid” "stupid" and and describing describing defense
defense counsel’s
counsel's conduct
conduct as
as “outrageous”
"outrageous" did
did not
not merit
merit relief
relief i;
Commonwealth Commonwealth v.v. Brawner, Brawner, 553
553 A.2d
A.2d 458
458 (Pa.Super.
(Pa.Super. 1989),
1989), appeal
appeal denied,
denied, 522
522 Pa.
Pa. 617,
617, 563
563 A.2d
A.2
886 886 (1989)(Prosecutor’s (1989)(Prosecutor's comments comments in
in his
his closing
closing that
that the
the defense
defense “smells
"smells to
to high
high heaven,”
heaven," iss
“rotten”, "rotten, and and “stinks”
"stinks" not
not so
so egregious
egregious as
as to
to render
render the
the jury
jury incapable
incapable of
of delivering
delivering aa true
true verdict,
verdict. i;;
Commonwealth Commonwealth v.v. Maxwell, Maxwell, 505
505 Pa.
Pa. 152, 477 A.2d 1309,
152,477 1309, 1316-17 1316-17 (1984)(Prosecutor’s (1984)Prosecutor's rhetorical rhetoric 1
characterization of of defense
defense counsel as “blowing "blowing smoke”
smoke" did not warrant
warrant relief).
relief.).
“An ineffectiveness "An ineffectiveness claim claim based on counsel's
based on counsel’s failure failure to
to object
object to
to aa prosecutor's
prosecutor’s closin
closing
argument has argument has merit merit where
where it
it is
is demonstrated
demonstrated that
that the comment deprived the comment deprived the
the petitioner
petitioner of
of i
constitutional or constitutional or statutory statutory right,
right, such
such as
as the right to
the right to aa fair trial or fair trial or due
due process."
process.” Commonwealth
Commonwealth v.
Anderson supra citing Anderson supra citing Commonwealth Commonwealth v.
v. Tedford,
Tedford, 598
598 Pa. 639, 960
Pa. 639, 960 A.2d
A.2d 1, 28-29 (2008).
1, 28-29 “Ths
(2008). "Th
touchstone is the touchstone is the fairness of the fairness of trial, not the trial, not the
the culpability
culpability of
of the prosecutor.” Id.
the prosecutor." Id. at
at 28.
28. See
See als
also
Commonwealth v. Commonwealth v. Reid, 688 Pa.
Reid, 688 Pa. 358,
358, 415-16,
415-16, 259
259 A.3d
A.3d 395,
395, 429
429 02021).
(2021).
When viewed When viewed by by the
the applicable standards set applicable standards set forth forth immediately above, the immediately above, Defendant’ s the Defendant'
allegation of allegation of the the assistant district attorney assistant district attorney making making improper
improper and
and prejudicial
prejudicial argument
argument during
during th
the
Commonwealth’s summation Commonwealth's summation is is readily
readily seen
seen to
to merit
merit no
no relief.
relief.
The prosecutor The prosecutor during during his
his closing
closing argument
argument was
was allowed
allowed to
to"“ .... . argue
argue that
that the evidence
the evidenc
leads leads to to the conclusion of the conclusion of guilt guilt and
and is
is permitted
permitted to suggest all
to suggest all favorable
favorable and
and reasonable inference s reasonable inference
that arise from that arise from the the evidence."
evidence.” Commonwealth
Commonwealth v.
v. Chamberlain
Chamberlain supra
supra 612
612 Pa.
Pa. at
at 153, 30
153, 30 A.3d
A.3d at
at 40
408
citing Commonwealth v. citing Commonwealth Sam supra • Sam 535 Pa.
supra 535 Pa. at
at 362,
362, 635
635 A.2d
A.2d at
at 608.
608. On
On reviewing
reviewing this
this collater
collateral
contention in contention in the the context
context of
of the
the trial
trial as
as aa whole,
whole, the assistant district the assistant district attorney attorney was
was within
within the
the bound
bound 5
assigned of assigned of his his prosecutorial
prosecutorial duties
duties to “argue the
to "argue the evidence,"
evidence,” offer
offer reasoned
reasoned inferences
inferences based
based upo
upon
the evidence that the evidence that had had been presented at
been presented at trial and attempt trial and attempt to meet in to meet his closing
in his closing the
the arguments
arguments mad
made
by defense counsel. by defense counsel. See See Commonwealth
Commonwealth v.
v. Kelly
Kelly supra
supra 319
319 Pa.
Pa.Super. at 211,
Super. at 211, 465
465 A.2d
A.2d at
at 130
1305
citing Commonwealth citing Commonwealth v.
v. Van
Van Cliff
Cliff supra
supra 483
483 Pa.
Pa. at
at 584,
584, 397
397 A.2d
A.2d at
at 1177.
1177.
To reiterate, To reiterate, "a “a prosecutor
prosecutor is
is permitted
permitted to
to 'vigorously
‘vigorously argue
argue his
his case
case so
so long
long as
as his
his comment
comment,
are supported are supported by by the evidence or
the evidence or constitute constitute legitimate
legitimate inferences
inferences arising
arising from the evidence.'
from the evidence.’ ”'
Commonwealth v. Commonwealth Luster, 71 v. Luster, 71 A.3d
A.3d 1029, 1048 (Pa.Super.
1029, 1048 (Pa.Super. 2013)(en 2013)(en banc). “(CJomments by banc). "[C]omments by a
prosecutor do not constitute reversible error unless the unavoidable effect of such comments would woul
be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant sd
s
that they could not weigh the evidence objectively and render a true verdict. Commonwealth v..
Hall, 701 A.2d 190, 202 (Pa. 1997); accord Commonwealth v. Reid, 259 A. 3d 395, 429, citing A.3d citin
Commonwealth v. Williams, 896 A.2d 523, 542 (Pa.
(Pa. 2006).
Assuming the court would have sustained an objection, had had it been raised,
raised, and if argued b/
b
trial counsel, the court could have have granted the additional relief relief of
of aa cautionary instruction instruction or
or a
mistrial. mistrial. A A cautionary
cautionary instruction
instruction would
would not
not have
have created
created any
any reasonable
reasonable probability
probability of
of changin ;
changin
the the jury’s jury's verdict verdict and
and the
the prosecutor’s
prosecutor's comment
comment clearly
clearly did
did not
not warrant
warrant the
the grant
grant of
of aa mistria
mistrial..
Moreover, Moreover, trial trial counsel
counsel gave
gave aa perfectly
perfectly reasonable
reasonable explanation
explanation that
that as
as aa matter
matter of
of tactics,
tactics, he
he did
di
not not want want to to place place undue
undue emphasis
emphasis on
on the
the prosecutor’s
prosecutor's overly
overly dramatic
dramatic oratory.
oratory. See
See N.T.
N.T. 11/18/12,,
11/18/1
pp. pp. 44-47, 44-47, 57-59.
57-59, See
See Commonwealth
Commonwealth v.v. Anderson Anderson supra
supra at
at *3.
3. (“[W]e
("[WJe do
do not
not question whether
question whether
there there were were other other more
more logical
logical courses
courses of
of action
action which
which counsel
counsel could
could have
have pursued;
pursued; rather
rather we
we must
mu t
examine examine whether whether counsel’s counsel's decisions
decisions had
had any
any reasonable
reasonable basis.”
basis." quoting
quoting Commonwealth
Commonwealth v.v. Hanible, Hanibl ,
612 612 Pa.
Pa. 183, 183, 30 30 A.3d
A.3d 426,
426, 439
439 (2011).”).
(2011)."). “" ‘A
'A review
review of
of counsel’s
counsel's performance
performance must
must be
be ‘highly
'highl
deferential.’ deferential.'"” Anderson Anderson supra
supra at*3
at3 quoting
quoting Commonwealth
Commonwealth v.v. Brown,
Brown, 649
649 Pa.
Pa. 293,
293, 196
196 A.3d
A.3d 130,
13 ,
150-51 150-51 (2018)
(2018) quoting quoting Commonwealth
Commonwealth v.v. Tharp,
Tharp, 6T1
627 Pa.
Pa. 673,
673, 101
101 A.3d
A.3d 736,
736, 772
772 (2014).
(2014).
The The Defendant’s Defendant's contention
contention fails
fails on
on at
at least
least two
two (2)
(2) or
or all
all three
three (3)
(3) conjunctive
conjunctive prongs
prongs of
oftthe
well-settled well-settled ineffectiveness ineffectiveness standard
standard needed
needed for
for PCRA
PCRA relief
relief(I.e.
(le. arguable
arguable merit,
merit, reasonable
reasonable basis,
basi ,
and and required required prejudice).
prejudice).
VI-D. Ineffective assistance of counsel on direct appeal for failure to litigate trial court’s court's
alleged evidentiary ruling error.
At the trial, the prosecutor intended to call a family friend and caretaker of the Defendant’s Defendant's
grandmother. Defendant Anderson lived with his grandmother at the time in question. The da/ Theda
before the Defendant admitted killing the victim (Toby Gale), the caretaker, Ms. Ratika Cruz, Cru ,
stopped by to check on Defendant Anderson’s Anderson's grandmother. While she was chatting with the
t
Defendant, Defendant, he was texting and audibly uttered “if "if this n*****
n***** come over here I’m I'm going to
to fr**
P himhi
up [szc].”
[sic]." N.T. 5/14/12, p.
p. 204. The person
person the Defendant was referring referring to was never
never identifier
identifie ,
but but the the certainly certainly deceased deceased fit
fit the
the general
general description.
description. Before
Before Ms.
Ms. Cruz’s
Cruz's testimony,
testimony, trial
trial counse
couns l1
raised raised his his objection objection in
in the
the court’s
court's robing
robing room.
room. See
See N.T.
N.T. 5/14/12
5/14/12 pp.
pp. 153-55.
153-55. Defense
Defense counsel
couns 1
asserted asserted that that because because the
the object
object of
of the
the Defendant’s
Defendant's hostility
hostility was
was never
never identified
identified that
that such
such aa remar
remar <
was was speculative speculative and and unduly
unduly prejudicial.
prejudicial. Because
Because of
of the
the timing
timing of
of the
the comment,
comment, the
the court
court deemed
deeme
the the testimony testimony to to be
be admissible
admissible and
and any
any inference
inference to
to be
be assigned
assigned for
for the
thejury’s
jury's determination,
determination, that
that is,
i ,
aa matter matter of of weight
weight rather
rather than
than admissibility.
admissibility. Trial
Trial counsel’s
counsel's objection
objection was
was therefore
therefore respectfully
respectful!
overruled. overruled. Id.
Id.
The The fourth fourth issue
issue raised
raised in
in Defendant’s
Defendant's 1925(b)
1925(b) statement
statement of
of matters
matters pursued
pursued on
on appeal
appeal is·
expressed expressed by by asking:
asking:
[w]hether [w]hether thethe PCRA
PCRA Court
Court erred
erred in infinding
finding the
the Defendant’s
Defendant's direct
direct
appeal appeal counsel
counsel was
was not
not ineffective
ineffective under
under thetheSixth
SixthAmendment
Amendmentto to the
the
United United States
States Constitution
Constitution and and parallel parallel provisions
provisions of of thethe
Pennsylvania Pennsylvania Constitution, in failing to raise on direct appeal trial Constitution, in failing to raise on direct appeal trial court court error
error in
in admitting
admitting the the testimony testimony of ofRatika
Ratika Cruz
Cruz that,
that, prior
prior to to
the homicide, Defendant uttered a threat of violence directed at no the homicide, Defendant uttered a threat of violence directed at no specific specificperson,
person, where
where CruzCruz'’ testimony testimony was was inadmissible inadmissible because
because itit
did didnot
not connect
connect toto the
the homicide,
homicide, and,and, asas evidence evidence ofofaaprior
prior bad
badactact
was highly was highly prejudicial
prejudicial and its admission not harmless as the and its admission not harmless as the
Pennsylvania Superior Court cited the testimony as tending to prove malice requiredfor
requiredfor First Degree Murder?
Defendant’s Defendant's Statement Pursuant to Pa.R.A.P. 1925(b) docketed August 15, 2024 - No. 4.
2024-No.
Defendant’s Defendant's PCRA counsel counsel ably
ably argued
argued that
that this
this piece
piece of
of evidence
evidence was
was referenced
referenced by
by the
t
Superior Court Court as as showing
showing animus
animus between the
the Defendant
Defendant and
and his
his supposed
supposed friend,
friend, the
the deceased
decease
Mr. Mr. Gale, Gale, in in upholding
upholding the
the Defendant’s
Defendant's first
first degree
degree murder
murder guilty
guilty verdict.
verdict. See See Petitioner’s
Petitioner s
Memorandum Memorandum in in Support
Support of
of Post
Post Conviction
Conviction Relief,
Relief, dated
dated January
January 2,
2, 2024,
2024, pp.
pp. 21-26;
21-26; and
and Supericr
Superi r
Court Court Memorandum Memorandum Opinion Opinion supra.
supra. At
At the
the PCRA
PCRA evidentiary
evidentiary hearing,
hearing, the
the Defendant’s
Defendant's counsel
counsel ooi
direct direct appeal appeal testified testified that
that itit had
had been
been twelve
twelve (12)
(12) years,
years, but
but he
he could
could only
only assume
assume that
that he
he did
did net
n t
raise raise the the issue issue because
because at
at that
that time
time he
he deemed
deemed the
the issue
issue to
to be
be without
without merit.
merit. See
See N.T.
N.T. 11/8/23, p. .
11/8/23,
13. 13.
As As itit relates relates to
to this
this challenge
challenge on
on appeal,
appeal, the
the Pennsylvania
Pennsylvania Supreme
Supreme Court
Courtregarding
regardingthe
the trie
tri 1
court’s court's decisions decisions to
to permit
permit certain
certain evidence
evidence has
has long
long recognized
recognized that
that below:
below:
. .. [I]ssues ... [I]ssues concem[ing]
concem[ing] the the admissibility admissibility of ofevidence, evidence, which
which rests
rests within
within
the sound discretion of the trial court and therefore, [the appellate courts] the sound discretion of the trial court and therefore, [the appellate courts] ‘will 'will reverse
reverse [the]
[the] trial
trial court’s
court's decision
decision ... ... only
only ififthe
the appellant
appellant sustains
sustains
the the ‘heavy
'heavy burden’
burden' to to show
show that
that the
the trial
trial court
courthashas abused
abused its its discretion.’
discretion.'
... It is not sufficient to persuade the appellate court that it might have ... It is not sufficient to persuade the appellate court that it might have reached reachedaadifferent
differentconclusion
conclusion [;]it[;]itisisnecessary necessarytotoshow showan anactual actualabuse
abuseof
of
discretionary power. An abuse of discretion will not be found based on aa discretionary power. An abuse of discretion will not be found based on mere mere error
error of
ofjudgement,
judgement, but but rather rather exists
exists where
where thethe court
court has
has reached
reached aa
conclusion [that] overrides or misapplies to law, or where the judgement conclusion [that] overrides or misapplies to law, or where the judgement exercised exercisedisismanifestly
manifestlyunreasonable,
unreasonable, or orthe theresult
resultof ofpartiality,
partiality,prejudice,
prejudice,
bias, or ill-will. bias, or ill-will.
Commonwealth Commonwealth v.v. Christine, Christine, 633
633 Pa.
Pa. 389,
389, 397,
397, 125
125 A.3d
A.3d394,
394,398
398 (2015)
(2015) quoting
quotingCommonwealth
Commonwealt
v. Bryant, v. Bryant,620 Pa. 218, 235, 67 A.3d 716, 726 (2013) quoting Commonwealth v. Eichenger, 591 620 Pa. 218, 235, 67 A.3d 716, 726 (2013) quoting Commonwealth ». Eichenger, 591 Pe..
P.
1,31,915 1, 31,915A.2d A.2d 1122,
1122, 1139-40(2007).
1139-40 (2007). See Seealso alsoCommonwealth
Commonwealthv.v. Woodard, Woodard,634634Pa.
Pa. 162,
162, 186,
186, 129
12
A.3d 480, 494 (2015) quoting Commonwealth v. Reid, CM Pa. 151, 189, 99 A.3d 470, 493 (2014] ; A.3d 480,494 (2015) quoting Commonwealth v. Reid, 627 Pa. 151, 189, 99 A.3d 470, 493 (2014); Commonwealth Commonwealthv.v. Roberts, Roberts,293293A.3d
A.3d 1221,
1221, 1223
1223 (Pa.Super.
(Pa.Super.2023).
2023).
The Pennsylvania The Pennsylvania Rules Rules of
of Evidence
Evidence provide,
provide, in
in material
material part,
part, the
the following:
following:
Rule 401 . Test Rule 401. Test for
for Relevant
Relevant Evidence.
Evidence.
Evidence is Evidence is relevant
relevant if:
if:
((a) it has
a) it has any
any tendency
tendency to
to make
make aa fact
fact more
more
or less or less probable
probable than
than it
it would
would be
be without
without
evidence; and evidence; and
(b) the (b) the fact
fact is
is of
of consequence
consequence in
in determining
determining
the action. the action.
Whether evidence has Whether evidence has aa tendency tendency to to make
make aa
given fact more given fact more oror less less probable
probable is is to
to be
be
determined by the determined by the court court in
in light
light ofof reason,
reason,
experience, scientific experience, scientific principles principles and and the
the other
other
testimony offered testimony offered in
in the
the case.
case. .. ...
.
Pa.R.E. 401(a)(b) Pa.R.E. 401(a)(b) and Comment (italicized).
and Comment (italicized).
Rule 403. Rule 403. Excluding
Excluding Relevant
Relevant Evidence
Evidence for
for Prejudice,
Prejudice, ...
... or
or Other
Other
Reasons. The Reasons. The court
court may
may exclude
exclude relevant
relevant evidence
evidence ifif its
its probative
probative
value is value is outweighed
outweighed byby aa danger danger of
of one
one or
or more
more of
of the
the following:
following:
unfair prejudice, unfair prejudice, confusing confusing the
the issues,
issues, misleading the jury, misleading the jury, undue undue
delay, wasting delay, wasting time,
time, or
or needlessly
needlessly presenting
presenting cumulative
cumulative evidence.
evidence.
Pa.R.E. 403. Pa.R.E. 403.
Rule 404.. Rule 404. ....
. Other
Other Crimes, Wrongs or
Crimes, Wrongs or Acts.
Acts.
(b) ... (b) ... Other
Other Crimes,
Crimes, Wrong
Wrong or
or Acts.
Acts.
(1) Prohibited (1) Uses. Evidence Prohibited Uses. Evidence of of any other any other
crime, wrong, crime, wrong, or or other other act is not
act is not admissible
admissible
to prove to prove aa person's
person’s character
character inin order
order to
to show
show
that on that on aa particular
particular occasion
occasion the
the person
person acted
acted
in accordance in with the accordance with the character.
character.
(2) Permitted Uses. (2) Permitted Uses. This evidence This may be
evidence may be
admissible for admissible for another purpose, such another purpose, such asas proving proving motive,
motive, opportunity, opportunity, intent,
intent,
preparation, preparation, plan, knowledge, identity, plan, knowledge, identity, absence of mistake, absence of mistake, oror lack lack of
of accident. In aa
accident. In
criminal case criminal case this
this evidence
evidence is
is admissible only
admissible only
if the probative if the probative value
value ofof the
the evidence
evidence
outweighs its outweighs potential for its potential for unfair
unfair prejudice.
prejudice.
Pa.R.E. 404(b)(1)(2). Pa.R.E. 404(b)(l)(2).
“As the "As the comment comment to
to Rule
Rule 403
403 instructs,
instructs, "“ '[un]fair
‘[un]fair prejudice'
prejudice’ means
means aa tendency
tendency to
to sugge
suggest
decision on decision on an an improper
improper basis or to
basis or to divert
divert the
the jury’s
jury's attention
attention away from its
away from its duty of weighing duty of weighing tthe
evidence impartially.' evidence impartially.’ "” Commonwealth Commonwealth v.
v. Hairston,
Hairston, 624
624 Pa.
Pa. 143,
143, 159,
159, 84
84 A.3d
A.3d 657,
657, 666
666 (201
(201 z)
quoting Pa.R.E. quoting Pa.R.E. 403 (Comment).
403 (Comment).
“Because all "Because all relevant relevant Commonwealth
Commonwealth evidence
evidence is
is meant
meant to
to prejudice
prejudice aa defendant,
defendant, exclusi
exclusion
is limited is limited to evidence so to evidence so prejudicial prejudicial that
that it
it would
would inflame
inflame the
the jury
jury to
to make
make aa decision
decision based
bas
upon something upon something other other than the legal
than the propositions relevant legal propositions to the relevant to the case.” Commonwealth v.
case." Commonwealth v. Broaste Broaste.-,
563 A.2d 863 A.2d 588, 588, 592 592 (Pa.Super.
(Pa.Super. 2004).
2004). See
See also
also Commonwealth
Commonwealth v.
v. Serge, 837 A.2d
Serge, 837 A.2d 1255,
1255, 1260-
1260-611
(Pa.Super. 2003). (Pa.Super. 2003). "Not “Not surprisingly,
surprisingly, criminal
criminal defendants
defendants always
always wish to excise
wish to excise eviden
evidence
of unpleasant of unpleasant and and unpalatable
unpalatable circumstances circumstances surrounding surrounding aa criminal
criminal offense
offense from
from the
Commonwealth’s presentation Commonwealth's presentation at at trial.
trial. Of
Of course,
course, the
the courts
courts must
must make
make sure
sure that
that evidence
evidence of
of su
such
circumstances have circumstances have some some relevance
relevance to the case
to the case and
and are
are not offered solely
not offered solely to
to inflame
inflame the
the jury
jury or
arouse prejudice arouse prejudice against against the
the defendant.
defendant. The
The [trial]
[trial] court
court is
is not, however, required not, however, required to to sanitize
sanitize tthe
trial to trial to eliminate eliminate all all unpleasant
unpleasant facts
facts from
from the
the jury's
jury’s consideration
consideration where
where those
those facts
facts are
are relevant
relevant Io
the issues the issues at at hand and form
hand and form part
part of
of the
the history
history and
and natural development of natural development of the the events
events and offenses
and offens
for which for which the the defendant
defendant is
is charged
charged ...
...”" Commonwealth
Commonwealth v.
v. Lark,
Lark, 518
518 Pa.
Pa. 290,
290, 310,
310, 543
543 A.2d
A.2d 49
49 L
501 (1988). 501 (1988).
“At the "At the heart heart of
of the
the ...
... prohibition
prohibition on
on propensity
propensity evidence
evidence is
is the
the threat
threat of
of prejudice
prejudice to
to a
defendant caused by defendant caused replacing the by replacing presumption of the presumption of innocence innocence with
with aa presumption
presumption of
of guilt
guilt based
based cr
prior conduct." prior conduct.” Commonwealth Commonwealth v.
v. Yale,
Yale, 249
249 A.3d
A.3d 1001,
1001, 1014-15
1014-15 (Pa.
(Pa. 2021)
2021) citing
citing Commonweal
Commonwealth
v. Fortune, 464 v. Fortune, 464 Pa.
Pa. 367,
367, 346
346 A.2d
A.2d 783,
783, 786
786 (1975). Relatedly, “ ...
(1975). Relatedly," ... exacting standards corral exacting standards corral ttie
Commonwealth’s use Commonwealth's use of of Rule
Rule 404(b)
404(b) evidence
evidence to
to prevent
prevent unfair
unfair prejudice
prejudice to
to aa defendant
defendant woi
whose
liberty is at liberty is at stake stake and
and to
to prevent
prevent the
the potential
potential loss
loss of
of the
the presumption
presumption of
of innocence."
innocence.” Commonweal
Commonweal h
v. Yale supra v. Yale supra 249 249 A.3d
A.3d at
at 1015.
1015. See also Commonwealth See also Commonwealth v.
v. Herring,
Herring, 271
271 A.3d
A.3d 911,919
911, 919 (Pa.Sup
(Pa.Super
2022) citing and 2022) citing quoting Commonwealth and quoting Commonwealth v.
v. Yale
Yale supra
supra 249
249 A.3d
A.3d at
at 1015.
1015.
The sole The sole purpose purpose of
of the evidence was
the evidence was to
to demonstrate
demonstrate the
the Defendant's
Defendant’s possible
possible state
state of
of mir
mi e,
at the at the time time of of the
the infliction
infliction of
of the
the victim's
victim’s abusive
abusive head
head trauma
trauma by
by way of Defendant
way of Defendant Anders
Anderson
striking the striking the victim's victim’s head
head twice
twice with
with aa hammer.
hammer. An
An inference
inference regarding the Defendant's regarding the Defendant’s comme comme i:
pertaining to pertaining to what what he
he was
was going
going to
to do
do could
could be
be accepted
accepted or
or rejected
rejected by
by the jury. Such
the jury. Such an
an inferen
inference
was in was in stark stark contrast contrast to witnesses who to witnesses who testified testified to
to the
the friendship
friendship between
between Defendant
Defendant Anderson
Anderson ana
the deceased. the deceased. See See for
for e.g.,
e.g., N.T.
N.T. 5/14/12,
5/14/12, pp.
pp. 115
115 (Tony,
(Tony, Donier,
Donier, and Brian were
and Brian were still
still friends
friends in
in Ap
April
·
2012) 2012) and N.T. 5/14/12, and N.T. 5/14/12, pp.
pp. 166-67
166-67 (The
(The guys
guys would
would hang out together.).
hang out together.). A
A review of the
review of the mater·
material 1
trial record trial record demonstrates that the demonstrates that the admission admission of
of the
the subject
subject testimony
testimony at
at issue was not
issue was not manifes
manifestly
unreasonable and/or unreasonable and/or the the court's
court’s decision grounded in decision grounded in partiality, partiality, prejudice,
prejudice, bias,
bias, and/or
and/or ill
ill will.
will,
Indeed, in Indeed, reviewing the in reviewing the sufficiency sufficiency of
of the
the evidence
evidence presented
presented to
to sustain
sustain the
the Defendant's
Defendant’s first
first degr
degr l
murder conviction murder conviction on on direct
direct appeal,
appeal, the
the Superior
Superior Court
Court recognized
recognized that
that such
such evidence
evidence allowed
allowed for
the permissible the inference "that permissible inference “that [the deceased] Gale [the deceased] Gale was
was the
the object
object of
of [Defendant]
[Defendant] Anderson's
Anderson’s ire
r
given that Anderson given that Anderson admits admits that
that he
he killed
killed Gale
Gale that
that evening."
evening.” Superior
Superior Court Memorandum Opini Court Memorandum Opini ):i
supra at *3. supra at *3. See See also Pa.R.A.P. 1925(a)
also Pa.R.A.P. 1925(a) Trial Trial Court
Court Opinion
Opinion supra
supra at 21; and
at 21; andN.T. 5/14/12, p.
N.T. 5/14/12, p. 2(<
2
harmless Assuming Assuming arguendo,
harmless because on the because on that the
arguendo, that
the trial
the court
trial record
court was
was mistaken
it could
record it
mistaken in
could not
not have
in admitting
admitting the
have contributed
the evidence,
contributed to
evidence, such
to the
the verdict.
such error
verdict. The
error v as
The doctrine
doctrine off
i
harmless error harmless error is is aa technique
technique of
of appellate
appellate review
review designed to advance designed to advance judicial judicial economy
economy by
by obviati
obviatir £
the necessity the necessity for for aa retrial
retrial where
where the
the appellate
appellate court
court is
is convinced
convinced that
that aa trial
trial error
error was
was harmle
harmless
beyond aa reasonable beyond reasonable doubt.
doubt. Its
Its purpose
purpose is
is premised
premised on
on the
the well-settled
well-settled proposition
proposition “that
"that aa defend
defendail
is entitled is entitled to to aa fair trial but
fair trial but not
not aa perfect
perfect one."
one.” Commonwealth
Commonwealth •
v. Thornton,
Thornton, 491
491 Pa.
Pa. 260, 266, 4
260, 266, 42 1
A.2d248, A.2d 251 (1981);
248, 251 (1981); and and Commonwealth
Commonwealth v.
v. Yockey,
Yockey, 158
158 A.3d
A. 3d 1246,
1246, 1254
1254 (Pa.Super.
(Pa. Super. 2017), appeal 2017), appe
denied, 643 denied, 643 Pa.
Pa. 686,
686, 174
174 A.3d
A. 3d 567
567 (2017)
(2017) citing
citing Commonwealth
Commonwealth v.
v. Chmiel,
Chmiel, 585
585 Pa.
Pa. 547,
547, 581-8
581-82.
889 A.2d 501, 889 A.2d 501, 521 521 (2005).
(2005). An error is
An error is harmless if, inter harmless if, inter alia, the record alia, the record demonstrates “the error demonstrates "the error dd: c
not prejudice not prejudice the the defendant
defendant or
or the
the prejudice
prejudice was
was de
de minimis.
minimise Commonwealth
Commonwealth v.
v. Hairston,
Hairston, 84 A2 c
84 A.
657, 671-72 657, 671-72 (Pa.
(Pa. 2014).
2014).
Here, any Here, any prejudicial prejudicial effect of the effect of the putative
putative error
error is
is so
so insignificant
insignificant that
that it
it is
is clear
clear beyond
beyond s.
reasonable doubt reasonable doubt the the claimed
claimed mistake
mistake could
could not
not have contributed to
have contributed to the
the verdict.
verdict. Commonwealth
Commonwealth v
Story, 476 Story, Pa. 391,412,383 476 Pa. 391, 412, 383 A.2d A.2d 155,
155, 165
165 (1978).
(1978). The
The prejudice,
prejudice, if
if any,
any, caused
caused by
by the
the one
one crypt
crypt o
comment made comment made by by the
the Defendant
Defendant is
is de
de minimis
minimis compared
compared to
to the
the expert medical and
expert medical and forens forensic,
I
evidence introduced evidence introduced by by the
the Commonwealth
Commonwealth to
to establish
establish Defendant
Defendant Anderson's
Anderson’s guilt.
guilt. See
See pp.
pp. 11-13
11- ,
supra quoting supra quoting Super Super Court
Court Memorandum
Memorandum Opinion
Opinion dated
dated November
November 26,
26, 2013 at *1
2013 at *1 and
and 3.
*3. ("[O]
(“[O]ir
review of review the record of the record reveals reveals aa plethora
plethora of
of evidence
evidence to
to support
support aa finding
finding that
that Anderson
Anderson killed Ga.e
killed Ga
with malice, with malice, and not out and not out of
of an
an actual
actual fear
fear for
for his
his life.”)
life.")
Although the Although the defense defense objection
objection may
may be
be of
of arguable
arguable merit,
merit, nonetheless,
nonetheless, the
the court's
court’s ruling
ruling w
w iss
not an not an abuse abuse of of discretion
discretion and,
and, therefore,
therefore, the
the Defendant
Defendant did
did not
not suffer
suffer any
any prejudice
prejudice as
as aa result
result r
appellate counsel appellate counsel not not pursuing
pursuing the
the issue
issue on
on appeal.
appeal. The
The forensics
forensics and
and expert
expert medical
medical testimo
testimony
presented by presented by the the Commonwealth
Commonwealth complete
completely refuted .the·
�y refuted the De.
Defendant’s version of
fendant�s version of w
what
�at occurred.
oc�urre_ 1.
Apart from the Apart from the compelling and uncontradicted compelling and medical evidence uncontradicted medical evidence introduced, introduced, the
the jurors'
jurors’ pl
plain
commonsense was commonsense was sufficient sufficient cause
cause to
to reject
reject the
the Defendant's
Defendant’s supposed
supposed self-defense
self-defense explanatio
explanation
This error This error assignment assignment is
is meritless,
meritless, but if this
but if this court's
court’s ruling
ruling were
were to
to be
be deemed an abuse
deemed an of discretio abuse of discretion
it was it was on the trial on the trial record's record’s totality
totality harmless error. See harmless error. Commonwealth v.
See Commonwealth v. Thornton Thornton supra 491 Pa.
supra 491 Pa. r:
266, 431 266, 431 A.2d A.2d at at 251; Commonwealth v.
251; Commonwealth v. Yockey Yockey supra
supra 158
158 A.3d
A.3d at 1254 citing
at 1254 Commonwealth e citing Commonwealth
Chmiel supra Chmiel supra 585 585 Pa.
Pa. at 581-82, 889
at 581-82, 889 A.2d
A.2d at 521 ; Commonwealth at 521; v. Hairston Commonwealth v. supra 84 Hairston supra A.3d at 84 A.3d at 67
67
72; Commonwealth 72; Commonwealth v.
v. Kurtz,
Kurtz, 294
294 A.3d
A.3d 509,531,
509, 531, n.
n. 15
15 (Pa.Super.
(Pa. Super. 2023)
2023) quoting
quoting Commonwealth
Commonwealth v
Holt supra Holt supra 273 273 A.3d
A. 3d at
at 540.
540.
summary, appellate In summary, counsel was appellate counsel was not ineffective for not ineffective for failing failing to
to raise
raise on
on direct
direct appeal
appeal the
subject evidentiary subject evidentiary claim.
claim. For claims
For claims of
of appellate
appellate counsel
counsel ineffectiveness,
ineffectiveness, aa defendant defendant mus
m st
established each established of the each of the underlying
underlying elements
elements of
of the
the Strickland
Strickland test. See Strickland test. See v. Washingto Strickland v. Washington
466 U.S. 466 U.S. 668, 668, 104 104 S.Ct.
S.Ct. 2952,
2952, 80 L.Ed.2d 674
80 L.Ed.2d 674 (1984);
(1984); Commonwealth
Commonwealth v. Tedford, 950 v. Tedford, 950 A.2d
A.2d 1,
1, ' 6
(Pa. 2008). (Pa. Accordingly, aa defendant 2008). Accordingly, defendant yet yet must
must prove:
prove: (1)
(1) the
the underlying claim is
underlying claim is of
of arguable
arguable mer
mer tt
(2) that (2) counsel had that counsel had no no reasonable
reasonable strategic
strategic basis
basis for
for his
his action
action or
or inaction;
inaction; and
and (3)
(3) but
but for
for the
the err
errors
and omissions and omissions of of counsel,
counsel, there
there is
is aa reasonable
reasonable probability
probability that
that the
the outcome
outcome would
would have
have be
been
different. Commonwealth different. Commonwealth v.
v. D'A
D’A 'mato,
'mato, 856 A.2d 806,812
856 A.2d 806, 812 (Pa.
(Pa. 2004);
2004); Commonwealth
Commonwealth v.
v. Sandus
Sandus
supra 203 supra 203 A.3d at 1043.
A.3d at 1043. As
As an
an appellate issue, aa defense appellate issue, defense claim claim that
that the
the court's
court’s ruling
ruling was
was an
an abuse
ab
of discretion is of discretion is meritless;
meritless; and
and moreover,
moreover, the
the required
required prejudice
prejudice under
under the
the PCRA cannot be
PCRA cannot
demonstrated. demonstrated.
VII. Conclusion
Conclusion
Of Of the the four
four (4)
(4) issues
issues of
of alleged
alleged ineffective
ineffective assistance of collateral assistance of collateral counsel counsel raised
raised and
litigated litigated by by the Defendant, none
the Defendant, none of
of the
the actions
actions or
or omissions alleged by
omissions alleged the trial by the trial lawyer
lawyer or
or attorn
attorney
on on direct direct appeal appeal (either
(either individually
individually and/or
and/or cumulatively) caused prejudice cumulatively) caused prejudice to Defendant Anders to Defendant Anderson
such such that that the the truth
truth determining
determining process
process was
was undermined.
undermined. While
While some
some of Defendant’s individual of Defendant's individ
claims claims either either lack lack merit
merit and/or
and/or trial
trial counsel
counsel had
had aa reasonable
reasonable basis
basis for
for his
his actions,
actions, Defendant
Defend
Anderson’s Anderson's claims claims all
all fall
fall under
under the
the third
third prong
prong of
of the
the PCRA
PCRA standard
standard as
as the Defendant has
the Defendant has cle
clearly
ly �
failed failed to to demonstrate demonstrate the
the requisite
requisite prejudice
prejudice to
to warrant the grant
warrant the grant of
of PCRA
PCRA relief.
relief. The
The evidence
evidence or
Defendant Defendant Anderson’s Anderson's guilt
guilt was
was so
so overwhelming
overwhelming such
such that
that there
there is
is no
no probability
probability the
the outcome
outcome of
of
the the trial trial could could have
have been
been different
different if
if he
he had
had succeeded
succeeded on
on any
any or
or all
all of
of the
the issues
issues now
now raised.
raised.
For For all all these
these reasons,
reasons, the
the court’s
court's dismissal
dismissal of
of the
the Defendant’s
Defendant's counseled,
counseled, amended
amended PCJA.
PC
petition petition following following such such an
an evidentiary
evidentiary hearing
hearing should
should be
be affirmed.
affirmed.
BY BY THE
THE COU
COU
Kevin IVtyell
1'42 Pa.C.S. §§9541 42 Pa.C.S. §§9541 et.
et. seq.
seq.
22 18 18 Pa.C.S.
Pa.C.S. §2502(a).
§2502(a).
3 18 Pa.C.S. §2502(c).
§2502(c).
3 18 Pa.C.S.
44 1818 Pa.C.S.
Pa.C.S. §907.
§907.
•18 5 18 Pa.C.S.
Pa.C.S. §5510.
§5510.
66 18 18 Pa.C.S.
Pa.C.S. §4910.
§4910.
7 18 Pa.C.S. 7 18 Pa.C.S. §2502(a).
§2502(a).
8 18 Pa.C.S. 8 18 §2502(c).
Pa.C.S. §2502(c).
918 9 18 Pa.C.S. §907.
Pa.C.S. §907.
1918 10 18 Pa.C.S.
Pa.C.S. $5510.
§5510.
11 18 Pa.C.S.
11 18 Pa.C.S. §4910.
§4910.
121818 Pa.C.S.
Pa.C.S. $2502(a).
§2502(a).
318 13 18 Pa.CS.
Pa.C.S. $907.
§907.
18 Pa.C.S.
14 18 Pa.C.S. 65510 §5510
15 18 Pa.C.S. 1518 Pa.C.S. $4910.
§4910.
18 Pa.C.S.
16 18 6 Pa.C.S. §2502(c).
$2502(c).
718 17 18Pa.C.S.
Pa.C.S. §2503(b).
$2503(b).
18 Pa.C.S.
1· 18 18 Pa.C.S. $2502(a).
§2502(a).
1918 19 18 Pa.C.$S.
Pa.C.S. §907.
$907.
20 18 30 18 Pa.C.S.
Pa.C.S. §4910.
$4910.
2118 21 18 Pa.C.S.
Pa.C.S. $5510.
§5510.
22 18 7 18 Pa.C.S.
Pa.C.S. §907.
$907.
23 18 273 18 Pa.C.S.
Pa.C.S. §4910.
$4910.
24 18 Pa.C.S. 2418 Pa.C.S. $2502(a).
§2502(a).
18 Pa.C.S.
25 18 5 Pa.C.S. §5510.
$5510.
18 Pa.C.S.
26 18 Pa.C.S. 82502(a).
§2502(a).
18 Pa.C.S.
27 18 7 Pa.C.S. $2503(b).
§2503(b).
18 Pa.C.S.
28 18 Pa.C.S. 82502(a).
§2502(a).
18 Pa.C.S.
29 18 9 Pa.C.S. 82502(a).
§2502(a).
30 30 When "the When “the trial trial court
court orders
orders an
an Appellant
Appellant to to file
file aa concise
concise statement
statement of
of matters complained of matters complained of on on appeal
appeal un
under
Pa.R.A.P. 1925, any Pa.R.A.P. 1925, any issue issue not
not contained
contained inin that
that statement
statement isis waived
waived on on appeal."
appeal.” Commonwealth
Commonwealth • v. Rolen, Rolen, 964
964 A.
A. 2d
398, 409 398, 409 (Pa.Super. 2008). "Any (Pa.Super. 2008). “Any issues issues not
not raised
raised in
in aa [Rule]
[Rule] 1925(b) Statement will 1925(b) Statement will be be deemed
deemed waive
waived.’ .'
Commonwealth v. Commonwealth v. Castillo, Castillo, 888
888 A.2d
A.2d 775,
775, 780
780 (Pa.
(Pa. 2005)(quoting
2005)(quoting Commonwealth Commonwealth v. v. Lord, Lord, 719
719 A.2d
A.2d 306,
306, 309
309 ((Pz.
1998)). See 1998)). See also also Pa.R.A.P.
Pa.R.A.P. 1925(b)(4)(vii)("Issues 1925(b)(4)(vii)(“Issues notnot included included in the statement in the statement and/or
and/or not
not raise
raise in accordance with
in accordance with th;
provisions of provisions of this this paragraph (b)(4) are paragraph (b)(4) are waived."
waived.” Accordingly, Defendant Anderson’s Accordingly, Defendant PCRA claim Anderson's PCRA claim with with respect
respect to
to the
trial court's trial court’s ruling ruling that
that he
he and
and his
his co-defendant's
co-defendant’s (Donier
(Donier White's)
White’s) case
case could
could be
be joined
joined for
for trial is on
trial is on app
appesl
unreviewable. unreviewable.
Com. v. Anderson, B. (Com. v. Anderson, B.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.