Commonwealth v. Charleston , 94 A.3d 1012 ( 2014 )

OPINION BY PLATT, J.:

Appellant, Brandon Denzel Charleston, appeals from the order dismissing his counseled first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, without a hearing, as without merit. Appellant claims ineffective assistance of trial counsel. We affirm.

On August 25, 2009, a jury convicted Appellant of murder of the first degree, 18 Pa.C.S.A. § 2502(a), and possessing an instrument of crime with intent to employ it criminally (PIC), 18 Pa.C.S.A. § 907(a). Appellant’s conviction arose out of his fatal shooting of William Stanton, a long-time friend, on June 15, 2008, at the home of Tracey Leslie, 2428 North 25th Street, in North Philadelphia.

At the time of the shooting, Appellant and Stanton were the only people in the house. Appellant claimed Stanton pulled a gun on him in an argument over the purchase of Xanax pills.¹ At trial, the Commonwealth acknowledged that Stanton was a drug dealer in the neighborhood. (See N.T. Trial, 8/18/09, at 180-81).

Appellant, who testified on his own behalf at trial, maintained that he acted in self-defense.² (See, e.g., N.T. Trial, 8/24/09, 41) (“I thought he was going to kill me. You know, I was fearing for my life.”); see also Commonwealth v. Charleston, 16 A.3d 505, 508 (Pa.Super.2011), appeal denied, 612 Pa. 696, 30 A.3d 486 (2011) (“The evidence adduced at trial showed that Appellant shot and killed William Stanton (the victim). Appellant claimed, in a statement to the police and at trial, that he acted in self defense.”).

According to Appellant, the shooting occurred after he tried to bargain with Stanton for more Xanax pills with the same amount of money. (See N.T. Trial, 8/24/09, at 38-39; 71-73). He claimed that Stanton pulled a handgun, and the two struggled over the weapon. (See id. at 40^41). Appellant admitted he shot Stanton three times. (Id. at 42) (‘You know, pow, pow, pow. It wasn’t drawn out like, you know, it happened and then it happened and happened. It happened all at once. It happened all at once.”). Appellant testified that he left the house and threw the gun into a sewer outside the house. (See id. at 44). However, the handgun was never recovered.

Stanton received three gunshot wounds: a horizontal wound to the chest, a downward wound to the right lower part of the abdomen, and a downward wound to the thigh exiting out the side of the right knee. (See N.T. Trial, 8/21/09, at 79-80). When Tracey Leslie returned to his house he found Stanton lying on the floor face down. He called 911. Stanton was pronounced dead at Temple University Hospital at 3:46 p.m. on the same day by Dr. Julie Toto. (See N.T. Trial, 8/21/09, at 68).

About a month later, on July 16, 2008, while the police were investigating an unrelated gang murder, the mother of the victim in this case, Clara Stanton, approached Officer Anthony Solimán and told him that the man he was interviewing in the police car, Appellant, had shot her son, William Stanton. (See N.T. Trial, 8/20/09, at 61, 171-72). Officer Solimán asked Appellant if he knew anything about William Stanton. He said “[N]o, I don’t.” (Id. at 176).

Officer Solimán transported Appellant to the Homicide Unit where detectives determined that he could not be interviewed because he was intoxicated. (See id. at 177; N.T. Trial, 8/21/09, at 150). Homicide Detective Greg Singleton interviewed Appellant the next day. (See N.T. Trial, 8/21/09, at 151). After receiving Miranda³ warnings, Appellant gave a statement to Detective Singleton and his partner Detective Dove, which he then read and signed.⁴ (See id. at 168-69). As already noted, Appellant claimed self-defense. The statement was read into the trial record. (See id. at 168) (“It was self defense. It’s not like I pointed it at him and shot him or nothing like that.”).

At trial, after Appellant’s direct testimony, on cross-examination the Commonwealth established numerous inconsistencies in his various versions of the incident, perhaps most notably his denial that he had any knowledge that the victim had been shot when he left the house. (See N.T. Trial, 8/24/09, at 133) (“I couldn’t believe that. I didn’t even know that he was shot. I just tried to, you know, I thought he was shot because he wasn’t answering me when I was talking to him, but I didn’t know for sure that he was shot.”) (emphasis added).

During their investigation of the homicide the police determined that Ms. Stanton’s belief that Appellant had shot her son, which prompted her to alert the police, stemmed from a general understanding in the neighborhood, or “word on the street.” (N.T. Trial, 8/20/09, at 130; see also id. at 180).

At trial, the Commonwealth also attempted to elicit specific testimony from Nashua Sanders, a relative of Ms. Stanton’s neighbors, that she had told Ms. Stanton that Appellant, with whom she was friends, had told her a week before the murder that he planned to rob William Stanton. However, on the stand, Ms. Sanders denied making the statement, or speaking at all with Ms. Stanton, beyond giving her condolences.⁵ (See id. at 35).

Ms. Stanton testified that on the day her son was killed he had between $600 to $650 on his person. (See id. at 45). He was also carrying a black wallet and a Pennsylvania ID card. (See id. at 47). Ms. Stanton never saw these items again. (See id.). Detective Kevin Judge testified that when he did a full body inspection of William Stanton for the homicide investigation at Temple University Hospital, he found Stanton’s clothes, in a bag, a set of keys, a cell phone, and three dollars. (See id. at 96).

Later in the trial the Commonwealth recalled Ms. Stanton. The trial court permitted Ms. Stanton to testify that Ms. Sanders had told her that Appellant told her (Ms. Sanders) that he planned to rob William Stanton, as a statement inconsistent with Ms. Sanders’ denial at trial. (See id. at 112). Immediately after Ms. Stanton completed her testimony, the trial court gave the following cautionary instruction, sua sponte:

Ladies and gentlemen, with regard to the testimony that you just heard, I’m just going to give you an instruction and that evidence is not necessarily to be accepted for the truth of the statements made by Ms. Sanders to Ms. Stanton, okay. It doesn’t — they were statements and you will be given additional instructions at the appropriate time.

Okay, next witness.

(Id. at 116).⁶

Dr. Sam Gulino, the Chief Medical Examiner for the City of Philadelphia, testified as an expert in forensic pathology for the Commonwealth. (See N.T. Trial, 8/21/09, at 62-95). Dr. Gulino testified that, based on the nature of the wounds and the amount of soot from gunpowder residue on the clothing and the wounds, the wound to the chest was “within [a] range of eight inches,” (id. at 78), the wound to the abdomen in the pelvic region a greater distance, but less than three feet, (see id.), and the wound to the thigh, two feet or more (see id. at 79). Mr. Gamal Emira, testifying without objection as an expert in forensic science, reached similar conclusions about the range of fire for the three wounds. (See id. at 106-10).

Officer Louis Grandizio, of the Philadelphia Police Firearms Identification Unit testified for the Commonwealth as an expert in ballistics evidence, by agreement of defense counsel. (See id., at 116-46). Officer Grandizio testified that for a handgun to fire three times, the trigger would have to be pulled three separate times. (See id. at 128). In his expert opinion, because of the six to seven pounds of pressure required to pull the trigger, the ejection of the spent cartridge, and the natural recoil of the handgun, it could not have fired three or four times in rapid succession during a struggle for possession, as maintained by the defense. (See id. at 129-131). Officer Grandizio testified that in his expert opinion, in the kind of struggle described by the defendant, the gun would probably jam after the first round was fired. (See id. at 132).

In his closing argument, defense counsel stressed that his client was “quite candid with you in terms of what happened[.]” (N.T. Trial, 8/24/09, at 156). Counsel also noted that “despite the fact that he [Appellant] didn’t have to say nothing [sic] was eager to see him [Homicide Detective Greg Singleton] and was eager to tell just what happened.” (Id. at 157). Similarly, trial counsel argued that (“[Appellant] had nothing to hide. And he [Appellant] told [Detective Singleton] just what happened.”). (Id. at 158).

During closing argument for the Commonwealth, the prosecutor first compared the credibility of the testimony of Nashua Sanders to that of Clara Stanton, the victim’s mother. (See id. at 168-69). The prosecutor also challenged Appellant’s credibility by highlighting some of the inconsistencies in his testimony, specifically characterizing his claim of self-defense as a “joke,” “nonsense,” and “potentially some of the craziest testimony that has been heard in this city.” (Id. at 192-93).

The trial court instructed the jury that evidence of Appellant’s prior criminal convictions, introduced by stipulation, (see id. at 145-46), was not evidence of Appellant’s guilt, but could be used by the jury to help them judge the credibility and weight of the testimony given by him at trial. (See id. at 227).

On August 25, 2009, the jury convicted Appellant of murder of the first degree, and possession of an instrument of crime with intent. (See N.T. Trial, 8/25/09, at 8; see also Verdict Slip, 8/25/09). At the request of defense counsel, the court polled the jury. (See N.T. Trial, 8/25/09, at 8-10). The verdict was unanimous on both counts. (See id,.).

On September 28, 2009, the trial court sentenced Appellant to life imprisonment on the murder conviction and to a concurrent term of not less than three months nor more than twenty-four months’ imprisonment on the PIC conviction. The court denied Appellant’s post sentence motion on October 6, 2009. On direct appeal, this Court affirmed Appellant’s judgment of sentence in a published opinion. (Commonwealth v. Charleston, 16 A.3d 505 (Pa.Super.2011)).⁷ Our Supreme Court denied allowance of appeal on September 27, 2011. (Commonwealth v. Charleston, 612 Pa. 696, 30 A.3d 486 (2011)).

Appellant timely filed the instant counseled petition for PCRA relief on February 2, 2012, claiming ineffective assistance of trial counsel.⁸ The Commonwealth responded with a motion to dismiss filed on June 12, 2012. The PCRA court filed notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907, on November 2, 2012, and as already noted, dismissed it, expressly denying relief, on November 26, 2012. This timely appeal followed.⁹

Appellant presents four questions for our review:

I. Was the Appellate [sic] denied effective assistance of counsel for the failure to request a proper limiting instruction regarding a hearsay statement attributed to Nashua Sanders by Commonwealth witness Clara Stanton that was used as substantive evidence of Appellant’s intent to commit murder and robbery?

II. Did trial counsel provide ineffective assistance in failing to object to prosecu-torial misconduct in the prosecutor’s closing speech to the jury suggesting that the Appellant had a motive to commit robbery [sic] due to unemployment [sic] and that the Appellant’s testimony lacked credibility [sic]?

III. Did trial counsel provide ineffective assistance by failing to object when the trial court instructed the jury that the prosecution had proven that the Appellant had “a bad reputation for telling the truth”?

IV. Did trial counsel provide ineffective assistance of counsel by failing to request that the jury be instructed regarding involuntary manslaughter and/or homicide by misadventure?

(Appellant’s Brief, at 3).

Our standard and scope of review for the denial of a PCRA petition is well-settled.

[A]n appellate court reviews the PCRA court’s findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error. The 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 at the trial level.

Commonwealth v. Spotz, — Pa.-, 84 A.3d 294, 311 (2014) (citations and internal quotation marks omitted).

In this appeal, all of Appellant’s claims challenge the effectiveness of trial counsel.

[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(h). Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him. In Pennsylvania, we have refined the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] performance and prejudice test into a three-part inquiry. See [Commonwealth v.] Pierce [, 515 Pa. 153, 527 A.2d 973 (1987) ]. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. If a petitioner fails to prove any of these prongs, his claim fails. Generally, counsel’s assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client’s interests. Where matters of strategy and tactics are concerned, a finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.

Id. at 311-12 (most case citations, internal quotation marks and other punctuation omitted). Our Supreme Court added:

As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error. Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 472 (2004). This Court has addressed the difference as follows:

[A] defendant [raising a claim of ineffective assistance of counsel] is required to show actual prejudice; that is, that counsel’s ineffectiveness was of such magnitude that it ‘could have reasonably had an adverse effect on the outcome of the proceedings.’ Pierce, 515 Pa. at 162, 527 A.2d at 977. This standard is different from the harmless error analysis that is typically applied when determining whether the trial court erred in taking or failing to take certain action. The harmless error standard, as set forth by this Court in Commonwealth v. Story, 476 Pa. [391], 409, 383 A.2d [155], 164 [ (1978) ] (citations omitted), states that “[w]henever there is a ‘reasonable possibility’ that an error ‘might have contributed to the conviction,’ the error is not harmless.” This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the Pierce prejudice standard, which requires the defendant to show that counsel’s conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant’s Sixth Amendment right to counsel. Pierce, supra.

Gribble, 580 Pa. at 676, 863 A.2d at 472 (emphasis in original).

Id. at 315. Similarly, this Court has explained:

To overcome the presumption of effectiveness, Appellant must establish three factors: first that the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that Appellant was prejudiced. Counsel’s assistance is deemed constitutionally effective once this Court determines that the defendant has not established any one of the prongs of the ineffectiveness test.

Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa.Super.2008) (citations and internal quotation marks omitted) (emphasis in original).

This Court has also explained: “The Pennsylvania Superior Court has held that Appellant’s claims ‘must meet all three prongs of the test for ineffectiveness, if the court can determine without an evidentiary hearing that one of the prongs cannot be met, then no purpose would be advanced by holding an evidentiary hearing.’ ” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super.2008), appeal denied, 598 Pa. 764, 956 A.2d 433 (2008) (citation omitted).

In this appeal, three of Appellant’s four ineffectiveness issues claim the failure to request or object to jury instructions.

[Our Supreme] Court has recognized that counsel are not constitutionally required to forward any and all possible objections at trial, and the decision of when to interrupt oftentimes is a function of overall defense strategy being brought to bear upon issues which arise unexpectedly at trial and require split-second decision-making by counsel. Under some circumstances, trial counsel may forego objecting to an objectionable remark or seeking a cautionary instruction on a particular point because objections sometimes highlight the issue for the jury, and curative instructions always do.

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 146 (2012) (case citations, internal quotation marks and other punctuation omitted).

In his first issue, Appellant asserts that trial counsel should have requested a “proper limiting instruction” for the testimony by Ms. Stanton repeating the statement made to her by Nashua Sanders. (Appellant’s Brief, at 3). He contends that the statement was used as substantive evidence of his intent to commit murder and robbery. (See id.). We disagree.

Appellant argues that the contemporaneous instruction given sua sponte by the trial court was “equivocal” and trial counsel was ineffective for “failing to demand a jury instruction that would have made it unequivocally clear that the statement of Nashua Sanders was not, under any circumstances, to be considered for the truth of its content.” (Id. at 12; see also id. at 7-13). Appellant argues that “he was surely prejudiced.” (Id. at 13). This issue is waived and would not merit relief.

Preliminarily, we are mindful that:

[W]hen evaluating the propriety of jury instructions, this Court will look to the instructions as a whole, and not simply isolated portions, to determine if the instructions were improper. We further note that, it is an unquestionable maxim of law in this Commonwealth that a trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. Only where there is an abuse of discretion or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super.2014) (citations omitted).

Next, we note that, aside from the cursory conclusion that “he was surely prejudiced” and a bald citation to Strickland, supra, and citation to authority on direct appeal, Appellant fails to develop an argument or present pertinent authority that the court’s use of the colloquial expression “not necessarily” rendered its instruction fatally equivocal.¹⁰ (See Appellant’s Brief, at 12-13).

Similarly, he fails to develop an argument that counsel had no reasonable basis not to request an additional instruction, or a reasonable probability that, but for counsel’s alleged unprofessional error in not requesting a second instruction, the result of the proceedings would have been different. (See id. at 7-13). Therefore, Appellant fails to establish any of the three prongs of the Pierce test. Accordingly, Appellant’s first issue is waived. See Spotz, supra at 311-12.

Furthermore, Appellant’s challenge to the jury instruction which the trial court actually gave does not have merit. Appellant’s claim focuses on an isolated portion of the charge, contrary to long-settled law, and ignores the “unquestionable maxim of law ... that a trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.” Antidormi, supra at 754; see also Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d 409, 432 (2009) (rejecting challenge to arguably problematic excerpt from jury charge on accomplice liability in first-degree murder case, after reviewing charge in its entirety).

Additionally, in his question and argument section Appellant merely assumes that the statement at issue was introduced by the Commonwealth as substantive evidence of Appellant’s intent to commit “murder and robbery,” rather than as evidence of an inconsistent statement.¹¹ (Appellant’s Brief, at 3; see also id. at 8-9). He does not develop an argument in support of the bald claim. Instead, he relies on a lengthy quotation from the prosecutor’s closing statement. (See id. at 9-11 (quoting N.T. Trial, 8/24/09, at 167-70)).¹² However, he does not develop an argument or offer pertinent authority in support of the specific claim that the prosecutor used the statement improperly, or that trial counsel ineffectively failed to object for that reason. See Pa.R.A.P. 2119(a); see also Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super.2007), appeal denied, 603 Pa. 679, 982 A.2d 509 (2009) (“We shall not develop an argument for [the appellant], nor shall we scour the record to find evidence to support an argument; consequently, we deem this issue waived.”). Accordingly, Appellant’s first claim would be waived for this reason as well.

Our independent review of the record reveals that the Commonwealth’s reference to the statement in closing argument, even as reproduced in the lengthy quotation presented by Appellant, goes to the credibility of the two witnesses rather than to the substance of the statement. (See N.T. Trial, 8/24/09, at 167 (“Consider the credibility of that statement that Clara Stanton stated, why shouldn’t you believe that? ... Doesn’t it have the ring of truth to it?”); see also id. at 167-70; Appellant’s Brief, at 9-11). Appellant’s claim has no arguable merit.

Furthermore, trial counsel had an obvious reasonable basis not to seek an additional instruction, which would have necessarily reminded the jury of the underlying statement that Appellant planned to rob the victim. “Under some circumstances, trial counsel may forego objecting to an objectionable remark or seeking a cautionary instruction on a particular point because objections sometimes highlight the issue for the jury, and curative instructions always do.” Koehler, supra at 146. Appellant’s first issue is waived and would not merit relief.

Secondly, Appellant asserts that trial counsel should have objected to the prosecutor’s reference in closing argument to Appellant’s having been out of work for a year, and that his testimony lacked credibility. (See Appellant’s Brief, at 3). Appellant argues that trial counsel’s failure to object deprived him of a fair trial and due process of law. (See id. at 13-15). We disagree.

First, again, Appellant fails to develop an argument of ineffectiveness in light of the three-pronged Pierce test. (See id.). Instead, Appellant baldly claims that the prosecutor “engaged in misconduct” when it improperly referred to his being out of work, citing Commonwealth v. Barkelbaugh, 526 Pa. 133, 584 A.2d 927 (1990) and Commonwealth v. Haight, 514 Pa. 438, 525 A.2d 1199 (1987), and that trial counsel’s failure to object constituted denial of due process. (Appellant’s Brief, at 14; see also id. at 15). Appellant’s argument is waived for that reason alone.

Furthermore, we note that the prosecutor’s two brief references in final argument to Appellant’s financial status consist of a total of three sentences in a summation which extends to over thirty pages of the trial transcript. “And we know that the defendant had not had a job for one year.” (N.T. Trial, 8/24/09, at 167). “The defendant [ ] doesn’t have any money. He’s been out of work for a year.” (Id. at 171; see also id. at 164-194).¹³

Appellant fails to develop an argument that, but for the alleged error in not objecting to these three sentences, the outcome of the trial would have been different. Instead, he makes a generic, unsupported claim that he was denied a fair trial and due process of law. (See Appellant’s Brief, at 15). “To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.” Spotz, supra at 312.

Appellant acknowledges, but purports to distinguish, Commonwealth v. Brown, 911 A.2d 576, 584 (Pa.Super.2006), appeal denied, 591 Pa. 722, 920 A.2d 830 (2007). (See Appellant’s Brief, at 15). The proffered distinction, that Brown addressed a direct tie between the financial difficulties and the crime, is unpersuasive. Brown held that there is no absolute bar to the admission of all evidence of financial difficulties. See Brown, supra at 584 (citing Commonwealth v. Wax, 391 Pa.Super. 314, 571 A.2d 386 (1990)). “[W]here evidence of the financial difficulty/debt is specific and evidence of the debt was not intended to stigmatize the appellant on the basis of his economic status, the general prejudice discussed in Barkelbaugh is not present.” Id.

Perhaps most importantly, as in his first claim, Appellant overlooks the obvious strategic motivation of trial counsel to avoid highlighting references to Appellant’s plan to rob, or motive to rob, as an explanation for the murder by raising an additional objection, especially after a cautionary instruction had already been given sua sponte by the trial court. See Koeh-ler, supra at 146.

Finally, on this claim, Appellant also alleges ineffectiveness in trial counsel’s purported failure to object to the prosecutor’s challenge to his credibility in her final argument. (See Appellant’s Brief, at 13-14). Appellant argues, without support in the record, that the prosecutor offered her own personal opinion of Appellant’s credibility. (See id.).

Our independent review of the record confirms that the prosecutor questioned Appellant’s credibility based on the inconsistencies in his testimony, not on her personal opinion: “Number one. You’ve got to believe the defendant. You got to believe this story. You got to believe that testimony. Seriously? That’s first and foremost.” (N.T. Trial, 8/24/09, at 192).

“In closing arguments, a prosecutor may comment on the evidence and any reasonable inferences arising from the evidence.” Commonwealth v. Arrington, — Pa.-, 86 A.3d 831, 853 (2014) (citation omitted). Here, the prosecutor did no more. Additionally, her remarks were permissible under well-settled principles which permit the Commonwealth the right of a fair response to the claims of the defense.

A prosecutor must have reasonable latitude in fairly presenting a case to the jury and must be free to present his or her arguments with logical force and vigor. The prosecutor is also permitted to respond to defense arguments. Finally, in order to evaluate whether the comments were improper, we do not look at the comments in a vacuum; rather we must look at them in the context in which they were made.

Rolan, supra at 410 (citation omitted). “Furthermore, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.” Commonwealth v. Culver, 51 A.3d 866, 876 (Pa.Super.2012) (citation and internal quotation marks omitted).

Here, in his closing argument, defense counsel had argued that the victim was behaving under the influence of drugs: “[Wjhen you’re high and under the influence of those drugs, it makes you do crazy things and he pulled a gun.”¹⁴ (N.T. Trial, 8/24/09, at 160; see also id. at 163) (emphasis added). The prosecutor’s comments were a fair response to that argument. “[I]t is axiomatic that [trial] counsel will not be considered ineffective for failing to pursue meritless claims.” Commonwealth v. Keaton, — Pa. -, 82 A.3d 419, 426 (2013) (citing Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 304 (1999)). Appellant’s second claim is waived and would not merit relief.

In his third claim, Appellant asserts ineffectiveness in trial counsel’s alleged failure to object to the trial court’s instruction, “that the prosecution had proven that he [Appellant] had ‘a bad reputation for telling the truth.’ ” (Appellant’s Brief, at 3).¹⁵ Appellant argues that trial counsel failed to object to matters not in evidence. (See id. at 16-17). We disagree.

Appellant’s third claim is based on an apparent misreading of the record and the applicable law. Both counsel stipulated to the admission of Appellant’s criminal record into evidence. (See N.T. Trial, 8/24/09, at 145-46). Appellant cites Commonwealth v. Randall, 758 A.2d 669, 678 (Pa.Super.2000), appeal denied, 564 Pa. 707, 764 A.2d 1067 (2000), for the proposition that “evidence which, is not in the record may not be cited by the court or the lawyers to suggest an outcome to the jury.” (Appellant’s Brief, at 17). The point is irrelevant because counsel stipulated to the admission of Appellant’s criminal record into evidence. Appellant offers no other authority in support of his claim. Appellant’s third claim fails.

In his fourth claim, Appellant alleges ineffectiveness in trial counsel’s not requesting an instruction on involuntary manslaughter or homicide by misadventure. (See Appellant’s Brief, at 3). Central to Appellant’s argument, he maintains that for our review this Court “must accept the version of the facts most favorable to the position of the defendant[.]” (Appellant’s Brief, at 18) (emphasis in original). We disagree.

Once again, Appellant falls to develop an argument for his claim in light of the well-settled three pronged Pierce test for ineffectiveness analysis. Instead, citing cases involving direct appeals, Appellant merely asserts that he was entitled to an instruction on homicide by misadventure¹⁶ and involuntary manslaughter.¹⁷ (See Appellant’s Brief, at 19). Accordingly, Appellant’s claim is waived. See Rolan, supra at 406. Moreover, it would not merit relief.

In the first place, Appellant fails to prove that he was prejudiced by the purported omissions. Specifically, he does not prove that it is likely that if he had received the instructions he now claims, the outcome of his trial would have been different. (See Appellant’s Brief, at 17-21); see also Spotz, supra at 311-12.¹⁸

Crucially, Appellant again misapprehends our standard and scope of review in a collateral appeal. This Court analyzes PCRA appeals “in the light most favorable to the prevailing party at the PCRA level.” Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super.2012), appeal denied, 619 Pa. 714, 64 A.3d 631 (2013) (emphasis added); see also Spotz, supra at 311 (“The 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 at the trial level.”) (emphasis added). Put another way, this Court reviews appeals from the denial of collateral relief under the actual prejudice standard, not the less stringent harmless error standard. See Spotz, supra at 315, 320. Therefore, this Court’s review of the PCRA court’s order need not and does not accept Appellant’s “version of the facts.” (Appellant’s Brief, at 18) (emphasis omitted).

Thus, viewing the prejudice question under the appropriate standard, to establish prejudice from trial counsel’s failure to object to the challenged portion of the justification charge, Appellee must show there is a reasonable probability that, but for counsel’s error or omission, the result of the proceeding would have been different. See Koehler, supra.

Spotz, supra at 320.

Here, Appellant asserts that if different instructions had been requested, “the outcome of the trial may well have been different[.]” (Appellant’s Brief, at 20) (emphasis added). Unsupported speculation does not establish reasonable probability.

Moreover, Appellant’s citation of direct appeal authority does not present alternate'grounds for relief. We are mindful that the following principles would apply in a direct appeal involving a jury instruction:

Defendants are generally entitled to instructions that they have requested and that are supported by the evidence. Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 607 (2007); Commonwealth v. DeMarco, 570 Pa. 263, 809 A.2d 256, 261 (2002) (“Where a defendant requests a jury instruction on a defense, the trial court may not refuse to instruct the jury regarding the defense if it is supported by evidence in the record.”); Commonwealth v. Browdie, 543 Pa. 337, 671 A.2d 668, 673-74 (1996) (“[W]e hold that a trial court shall only instruct on an offense where the offense has been made an issue in the case and where the trial evidence reasonably would support such a verdict.”). We have explained that the reason for this rule is that “instructing the jury on legal principles that cannot rationally be applied to the facts presented at trial may confuse them and place obstacles in the path of a just verdict.” Commonwealth v. Taylor, 583 Pa. 170, 876 A.2d 916, 925-26 (2005) (quoting Commonwealth v. White, 490 Pa. 179, 415 A.2d 399, 400 (1980)). A criminal defendant must, therefore, “establish that the trial evidence would ‘reasonably support’ a verdict based on the desired charge and may not claim entitlement to an instruction that has no basis in the evidence presented during trial.” Id. (citing Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328,1332-33 (1983)).

Commonwealth v. Hairston, — Pa.-, 84 A.3d 657, 668 (2014).

Here, neither homicide by misadventure nor involuntary manslaughter were at issue in the trial. Aside from his procedurally erroneous supposition that the record must be viewed in the light most favorable to him, Appellant offers no argument or authority that the evidence at trial objectively supported his claim for either of the new instructions he now desires.

Appellant principally cites to three cases: Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378, 381 (1979); Commonwealth v. Beach, 438 Pa. 37, 264 A.2d 712 (1970); and Commonwealth v. Flax, 331 Pa. 145, 200 A. 632, 637-38 (1938). (See Appellant’s Brief, at 18). Notably, all three cases are direct appeals from the judgment of sentence which preceded our Legislature’s enactment of the PCRA. Therefore, they are inapposite to the claims raised in this collateral appeal.

In any event, Appellant also misreads the import of the cases. In relevant part, Musi, supra decided that “since the testimony did not warrant a charge as to homicide by misadventure, defense counsel’s failure to request such a charge is obviously not a basis for finding ineffective assistance of counsel.” Musi, supra at 381 (citations omitted) (emphases added).

Similarly, Appellant extracts a quotation derived from Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069, 1074 (1991) (en banc), out of context, for the proposition that “a claim of accidental shooting and a claim of self-defense are not necessarily inconsistent if the circumstances of the case ‘allow that the accidental injury or death occurred within the course of the act of defending himself[.]’ ” (Appellant’s Brief, at 19).¹⁹ In any event the extract quoted is mere dicta.

The actual issue in Mayfield was not an instruction on involuntary manslaughter. Rather, it was whether the appellant was entitled to an instruction on self-defense, an instruction which was indisputably given here. See Mayfield, supra at 1070 (“The issue as presented by the Commonwealth for this court’s review is whether appellant is entitled to an instruction on self-defense when appellant denied committing the act for which he was convicted.”).

Our independent review of the pertinent authority confirms that there is no arguable merit to Appellant’s claims on appeal. See Musi, supra at 381 (no ineffectiveness where testimony did not warrant charge as to homicide by misadventure); Commonwealth v. Duffy, 355 Pa.Super. 145, 512 A.2d 1253, 1260 (1986), appeal denied, 514 Pa. 641, 523 A.2d 1130 (1987) (holding act of lunging for loaded gun not one which is done with reasonable care and due regard for the lives of others; appellant not entitled to charge of homicide by misadventure); see also Commonwealth v. Soltis, 455 Pa.Super. 218, 687 A.2d 1139, 1141 (1996), appeal denied, 548 Pa. 647, 695 A.2d 786 (1997) (holding appellant not entitled to involuntary manslaughter charge absent evidence that tended to show he acted recklessly or with gross negligence in causing death) (citing 18 Pa.C.S.A. § 2504(a)). Trial counsel’s strategic decision not to pursue competing theories of homicide by misadventure or involuntary manslaughter with requested instructions had a reasonable basis. Appellant fails to prove prejudice.

Finally, we note that the fundamental premise of Appellant’s fourth claim is flawed.

It is by now axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. In making this assessment we are not to employ a hindsight evaluation to determine whether other alternatives may have been more reasonable, but whether there was a reasonable basis for the course of action actually selected.

Musi, supra at 380 (citation omitted) (emphasis added).

Where counsel has made a strategic decision after a thorough investigation of law and facts, it is virtually unchallengeable; strategic choices made following a less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. As noted, an evaluation of counsel’s performance is highly deferential, and the reasonableness of counsel’s decisions cannot be based upon the distorting effects of hindsight.... Furthermore, reasonableness in this context depends, in critical part, upon the information supplied by the defendant. Thus, assuming a reasonable investigation, where there is no notice to counsel of particular mitigating evidence, he cannot be held ineffective for failing to pursue it.

Rolan, supra at 406 (citations omitted); see also Commonwealth v. Hudson, 455 Pa. 117, 314 A.2d 231, 235 (1974) (“The essence of advocacy is to select in light of the evidence and trial atmosphere what may be conceded and to challenge what counsel’s judgment indicates may best advance his client’s interests.”).

Here, after initial denials, from his first substantive statement to the police, to his testimony at trial, despite numerous inconsistencies, variations and other discrepancies, Appellant maintained that he acted in self-defense. On review, we discern no basis to find trial counsel ineffective, based on the information supplied by Appellant, for pursuing his claim of self-defense and presenting the jury with a consistent theme and strategy of the case. See Rolan, supra at 406; see also Hudson, supra at 235. Appellant’s fourth issue is waived and would not merit relief.

Accordingly, all of Appellant’s claims are waived, and merit no relief. He has failed to overcome the presumption of effectiveness. The PCRA court properly dismissed his petition without a hearing. Our reasoning differs somewhat from that of the PCRA court. However, “we may affirm the PCRA court’s decision on any basis.” Commonwealth v. Williams, 977 A.2d 1174, 1177 n. 8 (Pa.Super.2009), appeal denied, 605 Pa. 700, 990 A.2d 730 (2010).

Order affirmed.

OLSON, J., files a Concurring and Dissenting Opinion.

2 . See 18 Pa.C.S.A. § 505.

1 . Xanax is a sedative-type drug prescribed to alleviate anxiety; it is also used as a drug of abuse. (See N.T. Trial, 8/21/09, at 86).

3 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4 . Detective Dove's first name is not provided in the trial transcript.

5 .Ms. Sanders admitted she had told Detective Williams that she was fearful for herself and her family if she testified against Appellant. (See N.T. Trial, 8/20/09, at 38).

6 . Although the trial court later gave the jury-other general instructions, no further instruction on this point was given.

7 . For clarity and completeness, we note that Appellant mis-cites our prior decision as "16 A.3d 105” in his brief. (See Appellant's Brief, at 8).

8 . On August 22, 2012, Appellant also filed a pro se PCRA petition, chiefly seeking relief under Miller v. Alabama, — U.S. - —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that mandatory life imprisonment without parole for those under the age of eighteen at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments). The PCRA court properly disregarded the pro se petition, which was impermissible hybrid representation. See Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044 (2011). In any event, Appellant's Miller claim has no merit. Appellant concedes that at the time of the crime he was two weeks short of twenty-one years old. (See Petition, 8/22/12, at 1).

9 .On December 24, 2012, Appellant filed a Statement of Errors to be Complained of on Appeal. See Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) opinion on January 11, 2013. See Pa.R.A.P. 1925(a).

10 . Instead, Appellant cites Commonwealth v. Paisa, 521 Pa. 113, 555 A.2d 808 (1989), and Commonwealth v. Toth, 455 Pa. 154, 314 A.2d 275 (1974). (See Appellant's Brief, at 12). Both were direct appeals. Both are distinguishable.

In Paisa, our Supreme Court decided that, on the facts of that case, an out-of-court statement [that appellant had sought to buy fifteen pounds of marijuana with intent to distribute — (the crime for which he was being tried)] by an informant, who by the time of trial was a fugitive from justice unavailable to testify, was improperly admitted to explain the course of police conduct leading to appellant's arrest. See Paisa, supra at 810-11. None of those facts pertain here. Notably, the Paisa Court added: "This balancing process is governed by the sound discretion of the trial court, and, as with other evidentiary decisions, the trial court’s decision will be upheld on appeal unless there has been an abuse of that discretion.” Id. at 811 (citation omitted).

In Toth, our Supreme Court granted a new trial after the district attorney argued that because defense counsel offered an indirectly exculpatory out-of-court statement not for its truth, but to show the statement was made, he apparently didn't believe it himself. (The de-clarant had testified, over the prosecutor’s objection, that two fellow inmates told him they planned to implicate appellant falsely in the burglary at issue, to get leniency for themselves.). The Supreme Court noted that no cautionary instruction was given. See Toth, supra at 277 n. 2.

11 . For clarity and clarification, it bears noting that the statement at issue does not mention murder, as alleged by Appellant, only robbery. (See N.T. Trial, 8/20/09, at 112).

12 . Appellant notes, correctly, that on direct appeal, this Court decided that the challenge to the cautionary instruction was waived for lack of objection at trial. (See Appellant's Brief, at 8, 11; see also Charleston, supra at 528).

13 . The foundation for the references is in the Commonwealth's cross-examination of Appellant. (See N.T. Trial, 8/24/09, at 61-62, 65).

14 . Trial counsel’s premise was factually incorrect. Dr. Gulino, the Chief Medical Examiner, testified that the only drug in the victim’s bloodstream was Xanax, which is, as already noted, a sedative-type drug prescribed to alleviate anxiety. (See N.T. Trial, 8/21/09, at 86).

15 . Appellant inaccurately paraphrases and technically misquotes the instruction at issue. The trial court actually said, in relevant part: “The assistant district attorney introduced evidence tending to show that the defendant’s reputation for telling the truth is bad.” (N.T. Trial, 8/24/09, at 227 (emphasis added); see also PCRA Court Opinion, 1/11/13, at 6; Commonwealth’s Brief, at 26).

16 .Our Supreme Court has defined homicide by misadventure as follows:

Homicide by misadventure, which is excusable, is defined as: the accidental killing of another, where the slayer is doing a lawful act, unaccompanied by any criminally careless or reckless conduct. "Three elements enter into the defense of excusable homicide by misadventure: [1] The act resulting in death must be a lawful one; [2] It must be done with reasonable care and due regard for the lives and persons of others; and [3] the killing must be accidental and not intentional, or without unlawful intent, or without evil design or intention on the part of the slayer.... Even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act, such as pointing or presenting a gun, pistol or other firearm at another person in such a manner as to constitute an offense under the laws of the state....”

Commonwealth v. Legg, 551 Pa. 437, 711 A.2d 430, 432 n. 2 (1998) (quoting Commonwealth v. Hobson, 484 Pa. 250, 398 A.2d 1364, 1368 (1979)).

17 . The offense of involuntary manslaughter is defined by statute as follows:

A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

18 Pa.C.S.A. § 2504(a).

18 . To the contrary, in view of Appellant's admission that he fired the fatal shots, the illegal circumstances of the shooting, his initial denial of knowledge of anything about the death, his claim at trial that he didn’t even know the victim had been shot, his steadfast claim of self-defense, and the ballistics evidence contradicting his version of the shooting, we conclude that the proposition that an instruction on homicide by misadventure would have likely resulted in a different verdict is remote in the extreme.

19 . The actual quote from Mayfield is "actor,” not "act of.” Mayfield, supra at 1074.