Opinion
127 EDA 2023 J-S40035-23
08-27-2024
COMMONWEALTH OF PENNSYLVANIA v. DONOVAN A. REMEKIE Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered December 1, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010866-2017
Benjamin D. Kohler, Esq.
BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
Appellant, Donovan Remekie, appeals from the order of the Court of Common Pleas of Philadelphia County denying his petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. ("PCRA"), collaterally attacking his conviction of murder in the first degree for the 2017 stabbing murder of his estranged wife. We affirm.
Appellant elected to waive his right to a jury and was tried by the Honorable Barbara A. McDermott. The trial judge also was the PCRA judge. Judge McDermott set forth the factual basis for the conviction in her 2019 trial court opinion, as follows:
In May 2016, the [Appellant], Donovan Remekie, a Jamaican national, married the decedent, Tracey Newton, after the decedent agreed to sponsor his immigration visa. Their relationship became contentious, each accusing the other of being
unfaithful on multiple occasions. In September 2017, Newton filed for divorce, but the [Appellant] continued to live with her in the home she owned, located at 6521 N. 10th Street in Philadelphia. N.T. 2/12/2019 at 71-72, 74, 85.
On November 13, 2017, Newton moved the [Appellant's] belongings out of their shared bedroom and into the basement. The next afternoon, when he came home from his day shift job, the [Appellant] put his belongings back into the bedroom while Newton was at work, allegedly based on advice from his attorney. The [Appellant] then took a nap before his night shift job at United Parcel Service ("UPS"). Although his shift began at 11:30 p.m., the [Appellant] decided at 10 p.m. that he was going to miss work and remain at home that evening because he was tired and overslept. N.T. 2/12/2019 at 101-103, 151, 156-57.
In the early morning hours of November 15, 2017, both A.N., the decedent's eight-year-old daughter, and Winifred Miller, the decedent's mother, woke up to the sounds of the decedent's horrific screams. A.N. ran into her mother's bedroom and found her lying on the floor, in a pool of her own blood, and the blood soaked [Appellant] straddling her, with a chef's knife in his hand. A.N. begged the [Appellant] to stop hurting her mother. N.T. 2/11/2019 at 13, 15, 18-20, 43.
When Miller went into Newton's room, she saw Newton lying lifeless on the floor, with a knife handle protruding from her right shoulder and her blood splattered on the bedsheets and bedroom walls. The [Appellant], who was standing next to Newton's body, told Miller, "I killed the bitch. I killed the bitch. I told you I was going to kill the bitch." A.N. ran into the hallway to call 9-1-1 on the house phone, but was too nervous to speak, so she gave the phone to Miller. A.N. led Miller, who was horrified, downstairs to the living room to wait for the police to arrive. The [Appellant] went into the bathroom and washed his hands, covering the sink and drain with blood stains. N.T. 2/11/2019 at 53-54, 102-103, 117-118.
At approximately 2:40 a.m., Officer Thomas Dempsey responded to a radio call for a person with a weapon and a person screaming at 6521 N. 10th Street in Philadelphia. He was greeted by silence. After he knocked on the door repeatedly for a few minutes, the [Appellant] answered, dressed only in his boxer shorts, and covered with blood. The [Appellant] was out of breath, and
immediately proclaimed, "I didn't do anything," as Officer Dempsey told him to step back. N.T. 2/11/2019 at 69-70, 85, 88.
Upon entering the living room, Officer Dempsey frisked the [Appellant] and told him to sit down. A distraught Miller, who was consoling a hysterical A.N., told Officer Dempsey that the [Appellant] had stabbed the decedent upstairs in the bedroom. Officer Jeffrey Lendzinski and his partner, Officer Timothy Straus, went upstairs and found the decedent lying unresponsive, in a pool of her own blood, on the master bedroom floor. Officer Lendzinski, an experienced Philadelphia Police Officer, attempted to check the decedent's pulse, but his finger slid deep into her throat because the decedent's head was nearly severed from her body. Upon seeing the gruesome scene, Officer Straus immediately shouted for Officer Dempsey to "cuff" the [Appellant]. N.T. 2/1/2019 at 26; 2/11/2019 at 70-72, 157-58.
At approximately 2:50 a.m., medics arrived on scene and pronounced Newton dead. The decedent died from multiple stab and incised wounds. The [Appellant] stabbed her seventeen times, perforating her thyroid, larynx, multiple veins and cervical spine, and fracturing her skull. Dr. Lindsay Simon, a Philadelphia Medical Examiner, examined the decedent's body and concluded that the stab wounds to her neck, blood vessels, and cervical spine were fatal. Dr. Simon had extreme difficulty removing the knife from the decedent's body because the knife was embedded six and one-half inches deep into the decedent's neck. N.T. 2/11/2019 at 3, 6, 8, 10-11, 15-16, 38, 121.
Pursuant to a valid search warrant, Detective Thorsten Lucke, an expert in forensic extractions from cellular devices, performed an extraction of both the [Appellant's] cell phone, numbered […]3152, and the decedent's cell phone, numbered […]3956. Detective Lucke extracted the [Appellant's] browsing history, cookies, SMS messages, e-mails, and closed-out web history, dating back to September 1, 2017, and retrieved over 4,000 results. The web searches included "Find the Best Divorce Lawyer in Philadelphia," and "Can I Apply for Citizenship If I Have Divorced The Person Who Got Me My Green Card?" He also retrieved the [Appellant's] text messages sent to the decedent in November 2017, such as "You will pay dearly," and, "You barking up the wrong tree. Just be careful. One thing I know I'm not letting you off the hook this time. Repent and be forgiven." N.T. 2/12/2019 at 39-42, 48, 50-51, 53-55.
The [Appellant] testified that on the night of November 14, 2017, Newton came into the bedroom and went to sleep. At 2:30 a.m., she was twisting and turning in bed. The [Appellant] asked her if she was okay, and she replied that she was not. Their conversation turned into an argument. The [Appellant] got out of bed to go to the bathroom, and when he came back, Newton was sitting, crying, in bed, holding a knife with a seven-inch blade. According to the [Appellant], Newton, angrily raised her arm and said, "I'm going to hurt you." The [Appellant] testified that he and Newton had a brief struggle over the knife and when he finally took the knife out of her hands, she charged towards him. The [Appellant] alleged that Newton grabbed his testicles, causing him to stab her out of fear, anger, and rage. The [Appellant] claimed he had no idea there was a knife in the bedroom that evening, but knew Newton loved fruit and often had a knife in their bedroom to peel it. This Court found the [Appellant's] testimony incredible. N.T. 2/12/2019 at 104, 106-113, 161.Trial Court Opinion, 5/17/19, 2-5.
On February 12, 2019, the trial court found Appellant guilty of murder of the first degree and possessing an instrument of crime. Immediately following the verdict, the trial court imposed a term of life imprisonment without possibility of parole on the murder conviction and no further punishment for possessing an instrument of crime. Id., 1. In his direct appeal, Appellant challenged the sufficiency of the evidence. This Court affirmed the judgment of sentence. See Commonwealth v. Remekie, 737 EDA 2019, 2020 WL 4192434 (Pa. Super., filed July 21, 2020) ("Direct Appeal"). The Pennsylvania Supreme Court denied Appellant's Petition for Allowance of Appeal on January 6, 2021. See Commonwealth v. Remekie, 244 A.3d 6 (Pa. 2021) (table).
18 Pa.C.S. §§ 2502(a) and 907(a), respectively.
On December 29, 2021, Appellant filed a pro se PCRA petition. Counsel was appointed. Order, 1/6/22; Trial Court Record, 407. On February 24, 2022, appointed counsel sought a continuance from March 10, 2022, in order to consult with Appellant in preparation for filing an amended PCRA petition or a no-merit letter. On March 10, 2022, the PCRA court appointed new PCRA counsel for the purposes of filing an amended petition or no-merit letter. Order, 3/10/22; Trial Court Record, 416. On June 14, 2022, new PCRA counsel filed a no-merit letter pursuant to Commonwealth v. Finely, 550 A.2d 213 (Pa. Super. 1988) (en banc), in which she addressed the two claims raised by Appellant in the pro se petition and an additional two claims. Finley Letter, 6/14/22; Trial Court Record, 418-446. When the PCRA court issued a Notice of Intent to Dismiss in accordance with Pa.R.Crim.P 907, Appellant filed a pro se response alleging second appointed PCRA counsel's ineffective assistance. Rule 907 Notice, 6/22/22; Response to 907 Notice, 7/8/22; Trial Court Record, 447-450, 481-500. The PCRA court permitted second PCRA counsel to withdraw and appointed substitute PCRA counsel pursuant to Commonwealth v. Betts, 240 A.3d 616 (Pa. Super. 2020). Order, 7/21/22; Trial Court Record, 501.
Contemporaneously with the filing of his PCRA petition, Appellant filed a petition in federal court seeking habeas relief under 28 U.S.C. § 2254. He also filed a motion to stay the federal court proceedings while he pursued PCRA relief in state court. See Remekie v. Sorber, Civ. Act. No. 22-79, 2022 WL 672687, *2 (E.D. Pa., filed Mar. 7, 2022). The motion for stay was denied and the petition dismissed without prejudice to Appellant to refile. Id., *4.
On October 5, 2022, after independent review, substitute PCRA counsel also filed a Finley letter addressing the claims raised by prior PCRA counsel in the June 14 Finley letter and many additional discrete claims. Finley Letter, 10/5/22; Trial Court Record, 532-547. The PCRA court issued a new Rule 907 Notice of Intent to Dismiss on October 19, 2022. Rule 907 Notice, 10/19/22; Trial Court Record, 554-558. Appellant filed a response on November 14, 2022, in which he alleged the substitute PCRA counsel also provided ineffective assistance. Response to 907 Notice and Request for Reconsideration, 11/14/22; Trial Court Record, 560-680. The PCRA court dismissed the petition on December 1, 2022. PCRA Court Order and Opinion 12/1/22. See also Order Dismissing Petition, 12/1/22; Trial Court Record, 725. Appellant filed a motion to accept a certification for Richard J. Friedman, the managing attorney for Philadelphia Legal Assistance (the "Friedman Certification"). The PCRA court received it after having dismissed the petition, but reviewed the certification and determined that no further discussion of Appellant's claims was warranted. PCRA Court Supplemental Opinion, 12/20/22.
Appellant filed a timely pro se Notice of Appeal. In the Statement of Questions Involved in his pro se brief, Appellant separates his numerous individual claims into five categories: (1) eight claims of trial court error and/or PCRA court error; (2) trial court and derivative PCRA court error in failing to find that the Commonwealth failed to provide mandatory consular notification; (3) PCRA court error for failing to grant relief on any of 13 allegations of trial counsel's ineffective assistance with additional sub-allegations; (4) PCRA court error for failing to grant relief on four allegations of direct appeal counsel's ineffective assistance with sub-allegations; and (5) an umbrella claim of PCRA counsel's ineffective assistance for failing to raise Appellant's claims.
We review an order denying a PCRA petition to determine whether the PCRA court's decision is supported by the evidence of record and free of legal error. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018); Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016). The PCRA court need not hold an evidentiary hearing if it "can determine from the record that no genuine issues of material fact exist." Commonwealth v. McCready, 295 A.3d 292, 298 (Pa. Super. 2023) (citation omitted). We review the PCRA court's legal conclusions de novo. Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).
The first set of claims raised by Appellant are waived under the PCRA. To be eligible for PCRA relief, appellant must plead, and then prove by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, and "the failure to litigate the issue prior to or during trial ... or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." Id. § 9543(a)(3), (a)(4). See Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013). An issue is previously litigated if "the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2). An issue is waived if appellant "could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postconviction proceeding." Id. § 9544(b).
The first 10 pages of argument in Appellant's pro se brief, in a section alleging the PCRA court abused its discretion, discusses the sufficiency and weight of the evidence that Appellant committed murder of the first degree. See Appellant's Brief, 16-26. This Court held the evidence was sufficient on direct appeal. Therefore, the PCRA court could not have abused its discretion by not granting relief based on the alleged insufficiency of the evidence. Commonwealth v. Spotz, 47 A.3d 63, 101 (Pa. 2012) (where claim raised in PCRA petition was "rejected…on direct appeal" that claim "is not cognizable under the PCRA because it has been previously litigated").
To the extent that Appellant also raised a claim that his conviction was contrary to the weight of the evidence, see Appellant's Brief, 22, that claim was waived because it was not raised on direct appeal. 42 Pa.C.S. § 9544(b). See Commonwealth v. Roney, 79 A.3d 595, 609 (Pa. 2013) (PCRA claim that could have been raised at trial or direct appeal and which Appellant fails to argue that the failure to do so was due to prior counsel's ineffective assistance is waived for collateral review). Similarly waived are Appellant's litany of claims of derivative PCRA court error for not reversing alleged trial court errors in admitting evidence at trial, interjecting questions during (a bench) trial, permitting alleged prosecutorial misconduct, finding the medical examiner's testimony to be reliable, admitting into evidence photographs of the decedent, not ascertaining Appellant's criminal record for purposes of grading, not inquiring if Appellant was informed of his rights "pursuant to the Vienna Convention on Consular Relations … or if consular officials were notified of his arrest," by allegedly "allowing a Commonwealth witness to give testimony before the formal arraignment," not finding the police contaminated or tampered with evidence, finding credible the testimony that a key Commonwealth witness was competent to testify and not informing him during his jury waiver colloquy that he could seek a mistrial. See Appellant's Brief, 26-39. These claims could have been raised on direct appeal and were not, and prior counsel's ineffective assistance is not alleged. 42 Pa.C.S. § 9544(b); Roney, 79 A.3d at 609. See also Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007) (direct claims of error that could have been raised in a direct appeal are waived under the PCRA).
Appellant also contends that the removal of first appointed PCRA counsel "left a lot to be desired," in violation of Pa.R.Crim.P. 122(B)(2), and asserts he was prejudiced by the PCRA court's action because two subsequently appointed counsels independently filed Finley letters. Appellant's Brief, 38-39. Appellant also asserts that the PCRA court "showed gender bias" by removing first appointed PCRA counsel, a male, and appointing second PCRA counsel, a female. Appellant's Brief, 39. Unlike Appellant's other claims in Section I of his brief, these claims could not have been raised in the trial court. However, they could have been, and should have been, raised in the PCRA court. They were not. When second PCRA counsel was appointed on March 10, 2022, Appellant raised no objection. When the PCRA court issued a Rule 907 Notice, Appellant filed objections to dismissal of his petition, but not to counsel's appointment or withdrawal. Nor did Appellant object when substitute counsel was appointed. Instead, Appellant filed what he called "a formal complaint of mail theft to obstruct the course of justice" against second PCRA counsel and the PCRA court. See "Complaint of Mail Theft," 9/19/22; Trial Court Record, 503-531. In his "Complaint," Appellant alleged that a letter he sent to second PCRA counsel containing "sensitive information" was missing. Importantly for his present claim, Appellant did not contend that he had not received notice that second PCRA counsel had been appointed, or that the PCRA court "showed gender bias." As Appellant did not raise either claim in a timely manner before the PCRA court, these assertions of PCRA court error are waived for review. Commonwealth v. Paddy, 15 A.3d 431, 446 (Pa. 2011)("[f]ailure to raise an issue before the PCRA court results in waiver"). See also Commonwealth v. Bedford, 50 A.3d 707, 713-14 (Pa. Super. 2012) (en banc) (an appellant is confined to the specific objections made before the lower court).
On reply, Appellant argues that first PCRA counsel was more knowledgeable than subsequent counsel and therefore he was prejudiced by his removal by the PCRA court. Appellant's Reply Brief, 16-19. He does not, however, contend this objection was timely raised in the PCRA court.
In Section II of his brief, Appellant asserts another claim of direct trial court error for not having informed him of his consular notification rights under the Vienna Convention on Consular Relations and a bilateral treaty between the United States and Jamaica, where he holds citizenship, and of not having determined that neither the police nor his trial attorney had so informed him. Appellant's Brief, 40-46. This claim of trial court error, which, "could have been raised before trial, at trial, or on direct appeal," is waived for collateral review. Commonwealth v. Quaranibal, 763 A.2d 941, 944 (Pa. Super. 2000). See 42 Pa.C.S. § 9544(b); Roney, 79 A.3d at 609; Turetsky, 925 A.2d at 879. To the extent that Appellant argues he cannot waive or forfeit his right to consular notification, this Court has held otherwise. Commonwealth v. Oliver, 128 A.3d 1275, 1283 (Pa. Super. 2015) ("Appellant is not relieved of his own responsibility to claim a violation of his rights under the Vienna Convention within the framework of Pennsylvania's procedural rules merely because the obligation of consular notification rests with the Commonwealth").
"The Vienna Convention, Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820, was ratified by the United States upon the advice and consent of the Senate in 1969." Commonwealth v. Hannibal, 156 A.3d 197, 232 (Pa. 2016). Jamaica also signed the Vienna Convention. United States v. Briscoe, 69 F.Supp.2d 738, 745 (D.V.I. 1999), aff'd, 234 F.3d 1266 (3d Cir. 2000).
In Section III(a) of his brief, Appellant argues that trial counsel provided ineffective assistance by failing to advise him of his right to consular notification and access. Appellant's Brief, 48-52. Both second PCRA counsel and third PCRA counsel reviewed this claim and found that it did not have arguable merit. See Finley Letter, 6/14/22, 5-8; Finley Letter, 10/5/22, 7-8; Trial Court Record, 455-458, 538-539.
Appellant's allegation that trial counsel was ineffective for not informing him of his consular notification rights under the Vienna Convention and bilateral treaty is reviewable under the PCRA. To obtain relief on a claim of ineffectiveness, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). "In Pennsylvania, we have applied the Strickland test by looking to three elements: the petitioner must establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different." Robinson, 82 A.3d at 1005 (citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). The Sixth Amendment right to counsel is recognized "not for its own sake," but because of the effect it has on the accused's right to a fair trial. See Lockhart v. Fretwell, 506 U.S. 364, 369, (1993); see also Robinson, 82 A.3d at 1005.
With regard to the second prong (reasonable basis), "we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis." Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). We will hold that counsel's strategy lacked a reasonable basis only if the petitioner proves that a foregone alternative "offered a potential for success substantially greater than the course actually pursued." Spotz, 18 A.3d at 260. Our review of counsel's
performance "must be highly deferential." Commonwealth v. Tharp, … 101 A.3d 736, 772 (Pa. 2014) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). To establish the third element (prejudice), the petitioner must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. [Hanible, 30 A.3d at 439].Brown, 196 A.3d at 150-51 (internal citations edited for clarity). A failure to satisfy any of the three prongs is fatal to a claim of counsel's ineffective assistance. Id. at 151; Commonwealth v. Midgley, 289 A.3d 1111, 1119 (Pa. Super. 2023).
Article 36 of the Vienna Convention grants a foreign national like Appellant "the right to contact his consul upon his detention 'without delay' and requires that authorities inform him 'without delay' of this right." United States v. Briscoe, 69 F.Supp.2d 738, 745 (D.V.I. 1999), aff'd, 234 F.3d 1266 (3d Cir. 2000) (emphasis in original). "Article 36 does not guarantee defendants any assistance at all. The provision secures only a right of foreign nationals to have their consulate informed of their arrest or detention-not to have their consulate intervene[.]" Sanchez-Llamas v. Oregon, 548 U.S. 331, 349 (2006) (emphasis in original). Nor has the Pennsylvania Supreme Court fashioned a remedy for alleged violations. Commonwealth v. Hannibal, 156 A.3d 197, 233 (Pa. 2016); Commonwealth v. Padilla, 80 A.3d 1238, 1262 (Pa. 2013).
The PCRA court ruled that Appellant's underlying claim did not have arguable merit because the Vienna Convention does not confer individually enforceable rights or provide a judicial remedy for its violations. PCRA Court Opinion, 7 (citing Sanchez-Llamas). It also held that Appellant could not establish prejudice since the Vienna Convention does not guarantee that the consulate would provide assistance and Appellant had not demonstrated how any assistance would have changed the outcome of his trial. Id. We agree.
After the petition was dismissed, Appellant forwarded the Friedman Certification to the PCRA Court. In it, Appellant asserted on behalf of Attorney Friedman that the attorney would have corroborated Appellant's testimony at trial that he had put his belongings back into the shared bedroom on counsel's advice. Certification of Witness, 3/20/23, 2; Appellant's Brief, 42-43 & Attachment B. This is the sole basis on which Appellant argues he was prejudiced on appeal.
Appellant has abandoned on appeal the additional arguments made in the 907 Response that Attorney Friedman would have established the effect of the "uncontested divorce" on his immigration status, and that if notified the Jamaican consulate would have aided him in his defense. His attempt to resuscitate that part of his claim on reply, see Appellant's Reply Brief, 30-31, is unavailing. Commonwealth v. Williams, 909 A.2d 383, 386 n.6 (Pa. Super. 2006) ("an appellant cannot raise new issues in a reply brief").
Putting aside whether Appellant forwarded this certification in a timely fashion, there is no logical connection between Appellant having been informed of the right to consular notification and Attorney Friedman's proffered testimony. Even if we were to assume that officials from the Jamaican consulate would choose to provide some aid to Appellant, it is pure speculation that a different counsel would have been provided, much less that such hypothetical counsel would have tried the case differently. That missing step is fatal to the present claim of trial counsel's ineffective assistance. "Claims of ineffective assistance of counsel that are based on speculation and conjecture do not adequately establish the degree of prejudice necessary; namely, that there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different." Commonwealth v. Pursell, 724 A.2d 293, 311 (Pa. 1999); Commonwealth v. Charleston, 94 A.3d 1012, 1026 (Pa. Super. 2014) ("Unsupported speculation does not establish reasonable probability").
A case Appellant cites offers an interesting contrast demonstrating how his claim failed. See Appellant's Reply Brief, 28-29. The Court of Criminal Appeals of Oklahoma found that an allegation of a violation of Article 36 of the Vienna Convention with respect to the arrest of a Mexican national was not reviewable in a serial petition for post-conviction relief under state law. Valdez v. State, 46 P.3d 703, 706-710 (Okla. Crim. App. 2002). Nonetheless, an allegation of ineffectiveness against trial counsel inexperienced in capital trials for not obtaining the financial resources "to properly investigate Petitioner's childhood, social history or other aspects of his life" was reviewable and warranted relief because Valdez presented the Court with proof in "the record before this Court that the Government of Mexico would have intervened in the case, assisted with Petitioner's defense, and provided resources to ensure that he received a fair trial and sentencing hearing." Id. at 710. This was the proof of actual prejudice that Appellant's speculation lacks.
Appellant also alleges trial counsel's ineffective assistance in having failed "to investigate and call" Attorney Friedman as a witness. Appellant's Brief, 52-53. Substitute PCRA counsel reviewed the claim and found that Appellant's proffer was inadequate to warrant relief. See Finley Letter, 10/5/22, 11; Trial Court Record, 542. In response, Appellant argued that it was the duty of counsel to obtain the proper certification. Response to 907 Notice and Request for Reconsideration, 11/14/22, 42; Trial Court Record, 601.
The Friedman Certification provided to the court does not assert he would have been available and willing to testify at trial, and therefore is inadequate to prove ineffective assistance. Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002) ("these statements do not meet the second and fourth prongs of the test [for ineffective assistance for failing to call a witness] because they do not indicate whether the individuals were available and willing to cooperate with the defense"). See also Commonwealth v. Selenski, 228 A.3d 8, 17-18 (Pa. Super. 2020) (it is fatal to an ineffectiveness claim for failing to call a witness where no indication that an identified witness was available or willing to testify).
Appellant alleges that trial counsel was ineffective for not maintaining an objection to the prior recorded statement of the decedent's daughter. Appellant's Brief, 54-55. In his 907 Response, as one part of a direct claim of trial court error in ruling decedent's daughter was competent to testify at trial, Appellant argued that the admission of the witness' prior recorded interview as substantive evidence "will no doubt shock one's sense of justice." Response to 907 Notice and Request for Reconsideration, 11/14/22, 22; Trial Court Record, 581. He then alleged trial counsel was ineffective "for failing to challenge the competency of" the witness, and suggested "special attention" should be paid to when the court asked of trial counsel whether he was conceding that the prior recorded statement would "ultimately" be admitted. See Response to 907 Notice and Request for Reconsideration, 11/14/22, 44; Trial Court Record, 603 (citing N.T. 2/11/19, 133). The PCRA court ruled there was no basis to challenge the competency of the child witness and Appellant had failed to explain how "stipulating to the child witness' video statement was premature or how he experienced prejudice." PCRA Court Opinion, 12.
The discussion between the trial court and trial counsel noted for "special attention" by Appellant, established that counsel had initially stipulated to the testimony of the interviewer to the authenticity of the video recording, but that "things shifted" due to the testimony from the child witness. N.T. 2/11/19, 133. As the discussion continued, it was clear the judge, prosecutor and defense counsel agreed there was a proper path for the prosecutor to follow to introduce the prior recorded statement and for the trial court to distinguish between the admissible substantive evidence on the video recording from the inadmissible. See N.T. 2/11/19, 133-137. Consequently, the video statement was introduced in full. Appellant forwards no valid basis for trial counsel to have argued to exclude the video. He also failed to establish prejudice from the intermixing of admissible and inadmissible portions of the video, because this was a bench trial. A trial court acting as the fact-finder "is presumed to know the law, ignore prejudicial statements, and disregard inadmissible evidence." Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014).
Appellant also alleges that trial counsel was ineffective for failing to investigate or present evidence of the decedent's character trait of being the physical aggressor. Appellant's Brief, 55-56. Substitute PCRA counsel evaluated the claim and found it to be meritless. See Finley Letter, 10/5/22, 11; Trial Court Record, 542. In response, Appellant argues that the decedent's character trait of being the aggressor was relevant to his defense of justification. See Response to 907 Notice and Request for Reconsideration 11/14/22, 43; Trial Court Record, 602.
On appeal Appellant argues that trial counsel knew of decedent's "habit of filing papers with courts … and her propensity to provoke and engage in confrontation," which he asserts would have been relevant to his claim of self-defense. Appellant's Brief, 55-56. The PCRA court ruled that Appellant only presented information with respect to decedent's prior civil cases, which would not be relevant to a claim of self-defense. PCRA Court Opinion, 11. We agree. More to the point, Appellant did not raise a claim of self-defense at trial, but rather that he had committed voluntary manslaughter by acting out of a sudden and intense passion from serious provocation by decedent as previously discussed by this Court. See Direct Appeal, 6-9. See Commonwealth v. Busanet, 54 A.3d 35, 51 (Pa. 2012) (victim's propensity for violence irrelevant where self-defense not at issue). Nor did he proffer evidence of decedent's alleged propensity other than civil filings. Without an offer of proof, Appellant's ineffectiveness claim could not succeed. Commonwealth v. Alderman, 811 A.2d 592, 596 (Pa. Super. 2002).
Appellant has abandoned on appeal his related claim that trial counsel was ineffective because he should have presented additional character witnesses at trial, specifically referencing five persons who reside in Jamaica. Finley Letter, 6/14/22, 8-11; Trial Court Record, 458-561. Notably, Appellant further alleged that the trial court had erred by failing to "give consideration" to his character evidence to being law-abiding and peaceful. Response to 907 Notice and Request for Reconsideration, 11/14/22, 20-21; Trial Court Record, 597-598. The record revealed that Appellant had provided a list of 40 names to trial counsel with no contact information. PCRA Court Opinion, 7-8. Appellant thus failed to demonstrate, as required, that any of the five additional character witnesses, much less the 40, were available and willing to testify at his trial. Khalil, 806 A.2d at 422; Selenski, 228 A.3d at 17-18. In addition, as the PCRA court explained, he could not demonstrate prejudice, because trial counsel presented character testimony to his "reputation for being a peaceful and law-abiding person," and so any additional testimony would have been cumulative. PCRA Court Opinion, 8 (citing N.T. 2/12/19, 68). See Commonwealth v. Thuy, 623 A.2d 327, 334 (Pa. Super. 1993).
Appellant's allegation that trial counsel should have argued decedent was intoxicated at the time of her murder failed because of a lack of prejudice. See Appellant's Brief, 56-57. Substitute PCRA counsel explained that trial counsel had not been ineffective because the toxicology report indicated there were no drugs in decedent's system. See Finley Letter, 10/5/22, 13-14; Trial Court Record, 544-555. The PCRA court ruled that the report showed "decedent did not have any drugs in her system" and counsel had been provided that report. PCRA Court Opinion, 11-12. Appellant has proffered no evidence to the contrary. Alderman, 811 A.2d at 596.
Appellant alleges counsel's ineffectiveness for stipulating to the admission of, rather than "suppressing," allegedly inflammatory photographs of the decedent. Appellant's Brief, 57-58. This allegation was not raised before the PCRA court either by PCRA counsel or Appellant. Rather, Appellant asserted trial court error for admitting the photographs. Response to 907 Notice and Request for Reconsideration, 11/14/22, 33-34; Trial Court Record, 592-593. As a direct claim of trial court error, it is waived. See 42 Pa.C.S. § 9544(b); Roney, 79 A.3d at 609; Turetsky, 925 A.2d at 879. It also is waived as a claim of trial counsel's ineffective assistance because it was not raised before the PCRA court as such. "It is well-settled that issues not raised in a PCRA petition cannot be considered on appeal." Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011); Commonwealth v. Lauro, 819 A.2d 100, 104 (Pa. Super. 2003).
See also Commonwealth v. Peterson, 1512 MDA 2022, 2023 WL 6878813, *5 (Pa. Super. 2023) (non-precedential decision), appeal denied, 2024 WL 1400997 (Pa. Apr. 2, 2024); Commonwealth v. Persaud, 1521 MDA 2022, 2022 WL 778647, *5 (Pa. Super. 2022)(non-precedential decision).
Also waived, but for a different reason, is Appellant's allegation that trial counsel was ineffective for not challenging the competency of the decedent's young daughter. Appellant's Brief, 59. Substitute PCRA counsel addressed this claim, noting that the trial court had conducted the required competency hearing and the record supported the ruling. See Finley Letter, 10/5/22, 12; Trial Court Record, 543. In his response, Appellant cited to numerous pages of testimony without explanation. See Response to 907 Notice and Request for Reconsideration, 11/14/22, 44; Trial Court Record, 603. On appeal, he fails to develop this claim beyond citing to rules for preservation of testimony, which are not competency based, and to three cases that discuss relevant standards for determining the competency of a child witness but without any argument based on those cases. We will not craft Appellant's argument for him. Therefore, this allegation of ineffective assistances is waived. Commonwealth v. D'Amato, 856 A.2d 806, 814 (Pa. 2004) (undeveloped arguments that are the functional equivalent of no argument at all are waived). The PCRA court, moreover, ruled "there was no basis for trial counsel to challenge the competency of the child witness," as she had shown all the requisites prior to testifying. PCRA Court Opinion, 12. See also N.T. 2/11/19, 4-8. Appellant has not convinced us otherwise. Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) ("It is an appellant's burden to persuade [an appellate court] that the PCRA court erred and that relief is due").
Appellant alleges trial counsel was ineffective for not visiting the murder scene and thereby obtaining evidence that the police had "contaminated and tampered with the evidence." Appellant's Brief, 59-60. To the extent this allegation was raised before the PCRA court, it was within the guise of counsel having failed to "bring out evidence of corruption by investigating police officers." See Finley Letter, 10/5/22, 12; Response to 907 Notice and Request for Reconsideration 11/14/22, 46; Trial Court Record, 543, 606. On appeal, Appellant fails to develop this claim beyond citing to a few moments at trial from which he draws conclusory allegations of police corruption. His assertions are anything but clear and so the claim is waived. D'Amato, 856 A.2d at 814.
Even assuming the argument were developed enough to review, Appellant's allegations as to what trial counsel would have found at the scene are pure conjecture inadequate to establish actual prejudice. Pursell, 724 A.2d at 311; Charleston, 94 A.3d at 1026. For example, Appellant notes that on cross-examination Officer Clyde Frasier would not speculate as to how blood smears at the top of the stairs would have been possible, see N.T. 2/11/19, 121, yet Appellant was covered in blood when he went down the stairs to open the door for police. Appellant also cites to testimony that a box cutter found at the scene did not have blood on it, which was recovered while the murder weapon was still in the victim's chest. See N.T. 2/11/19, 123, 127. This evidence was consistent with Appellant's guilt and did not raise a reasonable doubt.
On reply, Appellant argues that the fact that there was blood later found on the box cutter was proof that police had tampered with evidence. Appellant's Reply Brief, 42-44. To the contrary, the scene as found by officers, and the blood later found on the box cutter as well as the blood found in the bathroom were all discussed thoroughly at trial. See N.T. 2/11/19, 101-128. None of the testimony indicates police tampered with the evidence.
Appellant alleges trial counsel's ineffective assistance for failing to object to judicial intervention and prosecutorial misconduct. Appellant's Brief, 60-62. Substitute PCRA counsel addressed this claim noting that (1) his review of the record revealed no "instance of impropriety by" the trial court, when at most it "inquired for clarification purposes," and (2) the prosecutor's summation describing the decedent's daughter's bravery was fair response to defense argument. See Finley Letter, 10/5/22, 14-15; Trial Court Record, 545-546. Appellant in his response noted three moments he believed to be improper judicial intervention without explaining how they were improper or how he might have been prejudiced. Response to 907 Notice and Request for Reconsideration, 11/14/22, 30-31, 47; Trial Court Record, 589-590, 607. The PCRA court explained that there was no arguable merit that it had improperly intervened at trial, because it had "a right to question witnesses to clarify existing facts and elicit new information" and its brief questioning of witnesses "did not show bias." PCRA Court Opinion, 13. We agree with the PCRA court. In addition, Appellant's failure before the PCRA court to allege, much less demonstrate, that he suffered actual prejudice from the trial court's clarifications renders this claim waived for appellate review. Ousley, 21 A.3d at 1242; Lauro, 819 A.2d at 104.
Even though the claim was waived below, Pa.R.A.P. 302(a), we note that Appellant did not argue he was prejudiced by the trial court's questions in his brief on appeal either. See Appellant's Brief, 61.
With respect to the prosecutor's summation to the trial court, Appellant identified the portion of the argument in which the prosecutor argued he had lied but forwarded no argument on any of the other prongs of an ineffectiveness claim. Response to 907 Notice and Request for Reconsideration, 11/14/22, 29, 50; Trial Court Record, 588, 610. Noting that Appellant raised the claim as improper comment on the credibility of both he and the child witness, the PCRA court explained that the Commonwealth is permitted to argue credibility and the trial court is presumed to ignore prejudicial statements. Therefore, there was no arguable merit. PCRA Court Opinion, 11.
Specifically, Appellant argues trial counsel should have objected to the prosecutor's assertion that he had "lied to you about their relationship and he has lied to you about the night of Tracey's murder and you should not accept anything that he has said to you other than the fact that it was him holding the knife that killed Tracey Newton." N.T. 2/12/19, 205. This argument was based on the evidence the Commonwealth presented and tracks a standard jury instruction. See Pennsylvania Suggested Standard Jury Instruction (Crim) 4.15. Appellant also asserts counsel should have objected when the prosecutor noted that the decedent's daughter wore a t-shirt to court that read "everyone loves a brave girl" and argued that she was brave to testify "to you to the best of her recollection of what she remembers about her mother's murder." Id., 206. "In closing arguments, a prosecutor may comment on the evidence and any reasonable inferences arising from the evidence." Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citation omitted). Here, the prosecutor did no more, as each argument was grounded in the evidence before the trial court. A "prosecutor's assertion that a witness had lied does not warrant a new trial when the statement was a fair inference from irrefutable evidence rather than a broad characterization." Commonwealth v. Cox, 863 A.2d 536, 547 (Pa. 2004) (citation omitted). It is not improper for a prosecutor to "invite" the factfinder "to consider Appellant's motives for testifying untruthfully and to contrast them with [a Commonwealth witness'] motives for her testimony." Commonwealth v. Holloway, 739 A.2d 1039, 1045 (Pa. 1999).
"False in one, false in all" is a concept for assessing the weight of evidence. It means "a jury may disregard the testimony of a witness if the jury believes that witness deliberately, or willfully and corruptly, testified falsely about a material issue." Commonwealth v. Vicens-Rodriguez, 911 A.2d 116, 117 (Pa. Super. 2006).
We therefore agree with the PCRA court and find no arguable merit to Appellant's underlying claim. Moreover, this was a bench trial, and a trial court acting as the factfinder "is presumed to know the law, ignore prejudicial statements, and disregard inadmissible evidence." Smith, 97 A.3d at 788. We would find that Appellant failed to demonstrate actual prejudice, but in fact, he did not argue the prejudice prong either before the PCRA court or on appeal. Ousley, 21 A.3d at 1242; Lauro, 819 A.2d at 104.
Appellant alleges trial counsel was ineffective for not having presented an expert to testify "on the nature of the battered woman syndrome." Appellant's Brief, 62-63. Substitute PCRA counsel found the related allegation of ineffective assistance for not presenting an expert witness to rebut the Commonwealth's case was too vague and boilerplate to warrant relief. See Finley Letter, 10/5/22, 13; Trial Court Record, 544. In his response, Appellant asserted that the "Commonwealth's ridiculous misconstrued motive for the killing of decedent could have been dismissed by the participation of consular officials as Amicus Curiae." Response to 907 Notice and Request for Reconsideration, 11/14/22, 48; Trial Court Record, 608. The PCRA court interpreted this claim to be coincident with Appellant's assertion that counsel should have called Attorney Friedman as a witness. PCRA Court Opinion, 12. Appellant's present allegation of ineffective assistance was not raised in the PCRA court and is therefore waived for appellate review. Ousley, 21 A.3d at 1242; Lauro, 819 A.2d at 104. Even if we were to entertain the claim, however, it would fail to warrant relief because Appellant has not even identified an expert or set forth that expert's proposed testimony, much less asserted that a particular expert would have been available and willing to testify at trial. See Khalil, 806 A.2d at 422; Selenski, 228 A.3d at 17-18.
In Appellant's final allegation of trial counsel's ineffective assistance, he argues that trial counsel should have "presented [his] criminal record to [the] court" because it would have been an "aid in the grading of the offenses" and to the cross-examination of the decedent's daughter. Appellant's Brief, 63-64. In addition, he suggests that gathering the necessary information may have delayed trial and that having his criminal record would have presented a "high probability that [the] outcome would be different." Id. Substitute PCRA counsel addressed this as two separate claims of (1) ineffectiveness for failing to ask effective questions and (2) ineffectiveness for failing to present Appellant's criminal record as an aid to grading. See Finley Letter, 10/5/22, 14; Trial Court Record, 545. With respect to the first, counsel deemed it a meritless "boilerplate" claim, and with the second, explained Appellant's criminal record would have been irrelevant to cross-examination of the witness or grading of the offense. Id. Appellant responded that the first three pages of cross-examination of decedent's daughter made it clear how the cross-examination would have been improved by better questioning, and that there was no evidence that his criminal record was ascertained. Response to 907 Notice and Request for Reconsideration, 11/14/22, 49; Trial Court Record, 609.
The PCRA court did not address this claim. Appellant failed to specify the alleged errors trial counsel made when cross-examining decedent's daughter, and, therefore, the claim was inadequately pleaded and waived, as well as inadequately briefed and waived. Ousley, 21 A.3d at 1242; D'Amato, 856 A.2d at 814; Lauro, 819 A.2d at 104. Appellant also failed to demonstrate that his criminal record would have been relevant to the grading of the offenses charged, which were homicide and possessing an instrument of crime, the grading of which are set by statute without regard to a prior record.
Appellant also challenges the effectiveness of direct appeal counsel for: not following Appellant's directions to (1) argue trial counsel's ineffective assistance on direct appeal; (2) move for oral argument; (3) file a writ of certiorari in the Supreme Court of the United States; and (4) brief additional arguments. Appellant's Brief, 64-67. To obtain relief an on allegation of direct appeal counsel's ineffective assistance, a defendant must plead and prove all of the elements of an ineffective assistance of counsel claim, underlying merit, reasonable basis and actual prejudice. In addition:
[w]hen considering whether appellate counsel had a reasonable basis for her actions, we do not question whether there were other more logical courses of action which counsel could have pursued: rather, we must examine whether counsel's decisions had any reasonable basis. We will conclude that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.Commonwealth v. Luster, 71 A.3d 1029, 1045 (Pa. Super. 2013) (en banc) (internal citations and quotation marks omitted). Moreover, because prejudice requires proof that "but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different," Appellant must demonstrate that the alleged error was not harmless. Id. at 1046 (citing Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa. Super. 2011)) (internal citations omitted).
Substitute PCRA counsel addressed these claims but found them to be boilerplate or obviously lacking in merit or actual prejudice. See Finley Letter, 10/5/22, 14-15; Trial Court Record, 545-546. In his response, Appellant failed to argue or demonstrate any prejudice. Response to 907 Notice and Request for Reconsideration, 11/14/22, 49-50; Trial Court Record, 609-610. Therefore, the claims were inadequately pleaded and waived for appellate review. Ousley, 21 A.3d at 1242; Lauro, 819 A.2d at 104. Nevertheless, we will address each of his claims for the sake of completeness.
Appellant's arguments that counsel should have included claims of trial counsel's ineffective assistance in the direct appeal brief is without merit. Absent specific circumstances not applicable here, claims of ineffective assistance of counsel are deferred until PCRA review. Commonwealth v Holmes, 79 A.3d 562, 577-578 (Pa. 2013); Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Similarly meritless are Appellant's individual claims that direct appeal counsel should have raised arguments that were not preserved in the trial court: "prosecutorial misconduct, the judge testifying as a witness, judicial intervention, proper consideration was not given to the evidence of good character of Appellant, etc." Appellant's Brief, 66. A timely objection is necessary to preserve each of these claims, and "for any claim that was required to be preserved, this Court cannot review a legal theory in support of that claim unless that particular legal theory was presented to the trial court." Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006). Prior counsel cannot be deemed ineffective for declining to present a meritless or waived claim. Hanible, 30 A.3d at 441. See also Commonwealth v. Blakeney, 108 A.3d 739, 763-64 (Pa. 2014) (defaulted claims "were unavailable to counsel on direct appeal").
With respect to whether any of these claims had been preserved for direct appeal counsel to raise, this Court has explained what is necessary for an appellant to do:
First, it is the appellant's obligation to demonstrate which appellate issues were preserved for review. Pa.R.A.P. 2117(c), 2119(e). Second, during our review of a case, we rely only on facts and documents in the certified record. This Court does not rely on items dehors the record, such as assertions in an appellate brief or a trial court opinion. Moreover, the duty to ensure the certified record contains all the facts and documents necessary for our review lies with the appellant. Thus, because our review necessitates a determination of whether issues were preserved, the appellant has the burden to demonstrate which part of the certified record reveals the preservation of the appellate issues.Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (internal citations omitted). Appellant has not made the necessary demonstration that any of the claims had been preserved at the time of the direct appeal.
As for Appellant's claim that direct appeal counsel should have raised a weight of the evidence claim on appeal, which had been preserved, it too was meritless. PCRA Court Opinion, 14. Because it was preserved, the trial court addressed it in its written opinion. It ruled that the conviction of murder of the first degree was supported by the weight of the evidence in that Appellant "sent threatening text messages to Newton in the weeks leading up to the murder, planned to be home from work on the night he killed her, and stabbed her seventeen times in vital parts of her body. After killing the decedent, he told Miller he 'killed the bitch[.]'" Trial Court Opinion, 5/17/19, 9.
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict
was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal emphasis and citations omitted). The trial court, which was the finder of fact, did not abuse its discretion by finding that Appellant's conviction was consistent with the weight of the evidence. Appellate counsel cannot be deemed ineffective for not raising this claim on direct appeal. Hanible, 30 A.3d at 441.
Appellant's two remaining allegations of direct appeal counsel's ineffectiveness are based in appellate procedure. Without question he has failed to demonstrate prejudice. He alleges appeal counsel should have requested oral argument in this Court after it had been submitted for decision on the briefs due to the COVID-19 emergency. We note that such a motion would have been left to our discretion to grant or deny. Appellant asserts he "stood a better chance of getting relief" if counsel had orally argued the sufficiency issue because as it was the court could only "view[…] cold records to make a decision." Appellant's Brief, 65. Appellate review is limited to the certified record on appeal, which often is a cold transcript of testimony. Moreover, the standard of review is identical whether a claim is submitted on the briefs for decision or orally argued before a panel of this Court. Appellant's assertion is pure speculation insufficient to establish prejudice. Pursell, 724 A.2d at 311; Charleston, 94 A.3d at 1026. As it was, the panel of this Court that reviewed Appellant's direct appeal was unanimous. There was no reasonable probability that two judges would have reversed their decisions if oral argument had been requested and granted. Certainly, Appellant has not provided any reason to believe otherwise.
Even less likely than that is the possibility that a Petition for a Writ of Certiorari, if filed, on the sufficiency of the evidence or a derivative question of due process, would have been granted and the convictions reversed by the Supreme Court of the United States. Appellant therefore has not demonstrated prejudice. See Commonwealth v. Jermyn, 620 A.2d 1128, 1132 (Pa. 1993) (to prevail on a claim that counsel was ineffective for not filing a Petition for Writ of Certiorari to the Unted States Supreme Court must set forth, at the least, a basis for that Court to grant, such as, a conflict between federal and state law or among other jurisdictions). We note further, Appellant also has not demonstrated that he requested direct appeal counsel to seek further review after the Petition for Allowance of Appeal in the Pennsylvania Supreme Court was denied.
In his final set of claims, Appellant argues that his second and substitute PCRA counsel rendered ineffective assistance by filing Finley letters rather than amended petitions raising the "issues of merit" that he "presented to counsels." Appellant's Brief, 68-69. The PCRA court found that none of Appellant's "underlying claims have merit and PCRA counsel cannot be held ineffective for filing to rise a frivolous claim." PCRA Court Opinion, 15. As we also have found that none of the claims raised by Appellant to PCRA counsel would have merited relief, we agree with the PCRA court. Counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006). Order affirmed.
Judgment Entered,
[*]Retired Senior Judge assigned to the Superior Court.