Commonwealth v. Williams, J., Aplt. , 196 A.3d 1021 ( 2018 )

[J-30-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 736 CAP
:
Appellee : Appeal from the Order entered on
: 12/31/2016 in the Court of Common
: Pleas, Lehigh County, Criminal
v. : Division, dismissing PCRA relief at
: No. CP-39-CR-0003716-1996.
:
JAMES T. WILLIAMS, : SUBMITTED: March 19, 2018
:
Appellant :
OPINION
JUSTICE MUNDY DECIDED: November 21, 2018
Appellant, James T. Williams, appeals from the order of the Court of Common
Pleas of Lehigh County dismissing his timely first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 We affirm.
I. Factual and Procedural Background
On May 29, 1995, Appellant, together with four co-defendants, planned to rob
Richard White, a drug dealer they believed to possess significant amounts of cash.
During the commission of the robbery outside White’s home, Appellant shot White three
times with a MAC 10 automatic weapon. White died from his wounds. Appellant
1 The PCRA provides that this Court shall have exclusive jurisdiction over appeals from a
final order granting or denying relief in cases where the death penalty has been imposed.
42 Pa.C.S. § 9546(d); Commonwealth v. Mason, 130 A.3d 601, 610 n.1 (Pa. 2015).
represented himself during his trial and sentencing proceedings, which were presided
over by Judge Edward Reibman. Judge Reibman appointed standby counsel.2 A jury
convicted Appellant of first-degree murder, robbery, and conspiracy to commit robbery.3
Thereafter, Appellant was sentenced to death. On appeal, Appellant again proceeded
pro se with access to new standby counsel. A more detailed account of the factual and
procedural history of this stage of the case is provided in our 2006 opinion. See
Commonwealth v. Williams, 896 A.2d 523, 530-32 (Pa. 2006), cert. denied, 549 U.S. 1213(2007) (Williams I).
On direct appeal, standby counsel, on behalf of Appellant, filed several procedural
applications with this Court during the pendency of the appeal. In addition to four requests
for extension of time to file a brief, which we granted, standby counsel filed an application
for remand to the trial court to prepare a supplemental opinion; an application for remand
to the trial court to supplement the certified record; a motion for funds and/or remand to
retain the services of mitigation and psychological experts; a motion for remand to
supplement the certified record with affidavits of witnesses; and a motion for remand to
supplement the certified record with an affidavit of standby counsel. On April 9, 2003,
standby counsel, on behalf of Appellant, filed Appellant’s brief, raising eighteen
allegations of error in the pre-trial, trial and penalty phases of the trial court proceedings.
On April 29, 2003, this Court issued a series of per curiam orders which granted
remand for standby counsel to file a statement of matters complained of on appeal with
the trial court and for that court to prepare a supplemental opinion; granted remand to
supplement the certified record; granted remand for the trial court to consider Appellant’s
2The Commonwealth was represented by then Assistant District Attorney (ADA) Maria L.
Dantos. In 2007, ADA Dantos was appointed to fill a vacancy on the Court of Common
Pleas of Lehigh County and subsequently elected to a full term.
3 18 Pa.C.S. §§ 2502(a), 37(a)(1); and 903(a)(1) & (2), respectively.
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request to supplement the certified record with witness statements regarding any grant of
immunity or bail arrangements; granted remand for the trial court to consider Appellant’s
request to supplement the certified record with standby counsel’s affidavit regarding
criminal records of Commonwealth witnesses; and denied Appellant’s motion for funds
and/or remand to secure an expert relative to Appellant’s competency.
On June 4, 2003, Appellant filed an application for relief entitled “Motion to File an
Emergency Amended Pro Se Appeal.” Therein, Appellant asserted that standby counsel
was acting without his authorization by filing a brief that failed to contain various issues
he wished to include. On August 12, 2003, this Court tolled the briefing schedule pending
filing of the trial court’s opinion. On September 17, 2003, standby counsel, by “Letter in
Lieu of Supplemental Brief,” indicated Appellant would rely on the brief filed on April 9,
2003. On December 23, 2003, this Court issued a per curiam order denying Appellant’s
June 4, 2003 application for relief. On June 27, 2005, Appellant filed an application for
leave to file post-submission communication. Therein, Appellant raised the same
allegations as in his June 4, 2003 motion. Specifically, he alleged that “[i]nstead of
presenting [A]ppellant’s relevant issues as promised, this ‘stand-by counsel’ unwanted in
the first place, [r]eplaced [Appellant’s] original issues with his own frivolous, specious
issues and forged [A]ppellant’s signature to the brief . . ..” Pro Se Application for Relief,
357 Cap., 6/27/2005 at 3. Within his pro se June 4, 2003 and June 27, 2005 motions,
Appellant set forth the nine or ten additional issues he wished this Court to address. On
November 16, 2005, we issued a per curiam order denying Appellant’s application for
post-submission communication. This Court affirmed the judgment of sentence on April
21, 2006. Williams I, 896 A.2d at 548.
Appellant filed a timely pro se PCRA petition on March 9, 2007. The PCRA court
appointed the Federal Community Defender Office for the Eastern District of
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Pennsylvania (FCDO) to represent Appellant. Appellant again expressed his intention to
proceed pro se, which the PCRA court confirmed in a colloquy on June 5, 2008, with the
FCDO remaining as standby counsel. The PCRA court granted Appellant several
extensions to file an amended PCRA petition. Appellant filed an amended petition on
July 24, 2009. Appellant filed a motion for discovery pursuant to Pennsylvania Rule of
Criminal Procedure 902(E)(2) on December 18, 2009. The Commonwealth filed a motion
to dismiss on January 7, 2010. Appellant filed an answer to the Commonwealth’s motion
on March 10, 2010.4
In December 2010, the PCRA court granted, in part, Appellant’s discovery
requests, and continued the hearing on the merits of Appellant’s PCRA petition. In May
2011, Appellant renewed a discovery request for the prosecution’s notes of witness
interviews and preparation sessions. The PCRA court granted the request. The
Commonwealth sought reconsideration and an opportunity to be heard on the issue. The
PCRA court denied the motion for reconsideration and the Commonwealth appealed to
this Court. We held that the PCRA court abused its discretion in granting the discovery
request absent support in the record that good cause was shown as required by
Pennsylvania Rule of Criminal Procedure 902(E)(2). See Commonwealth v. Williams, 86
A.3d 771 (Pa. 2014) (Williams II).5 The PCRA court, in the meantime, conducted a full
4 On that date, In light of Judge Dantos’ ascension to the bench, Judge Reibman recused
himself, sua sponte. Subsequently, this Court appointed Senior Judge John L. Braxton
to preside over the case.
5 Included in our mandate to the PCRA court in Williams II was an instruction to determine
“the propriety of the role of the FCDO as standby counsel.” Williams II, 86 A.3d at 791.
This question had been similarly raised by this Court in a number of other cases. See
Commonwealth v. Wright, 78 A.3d 1070, 1087 (Pa. 2013) (collecting cases). The record
does not show that the PCRA court made such a determination, however, as we
acknowledged in Commonwealth v. Sepulveda, 144 A.3d 1270, 1276-77 (Pa. 2016), the
Third Circuit has ruled that the question of the disqualification of the FCDO implicates the
regulatory scheme Congress has enacted and is, therefore, preempted. See In re
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multiday PCRA hearing, commencing December 14, 2010 and concluding on May 2,
2012. After submission of post-hearing briefs, the PCRA court filed an order dismissing
Appellant’s PCRA petition.
II. General Principles of Law
“On appeal from the denial of PCRA relief, our standard of review calls for us to
determine whether the ruling of the PCRA court is supported by the record and free of
legal error.” Commonwealth v. Washington, 927 A.2d 586, 593 (Pa. 2007) (citations
omitted). “The PCRA court’s credibility determinations, when supported by the record,
are binding on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013), cert.
denied, Roney v. Pennsylvania, ---U.S.---. 135 S. Ct. 56 (2014). To be eligible for relief
under the PCRA, a defendant must plead and prove that his conviction and/or sentence
resulted from one of the circumstances delineated by the PCRA. See 42 Pa.C.S. §
9543(a)(2) (outlining the requirements to be eligible for PCRA relief). Among those
requirements are that the issue raised be neither previously litigated nor waived. Id. at
9543(a)(3). “An issue is previously litigated if ‘the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits of the issue.
. . .’ [42 Pa.C.S.] § 9544(a)(2). An issue is waived ‘if the petitioner 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).” Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 2012).
“Appellant has the burden to persuade this Court that the PCRA court erred and that such
error requires relief. [Also, i]t is well settled that this Court may affirm a valid judgment or
Commonwealth’s Motion to Appoint Counsel Against or Directed to Def. Ass’n of Phila.,
790 F.3d 457, 461 (3d Cir. 2015), as amended (June 16, 2015), cert. denied sub nom.
Pennsylvania v. Def. Ass’n of Phila., –––U.S.–––, 136 S. Ct. 980 (2016), and cert. denied
sub nom. Pennsylvania v. Fed. Cmty. Def. Org. of Philadelphia, –––U.S.–––, 136 S. Ct.
994 (2016). Accordingly, we do not address the issue further here.
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order for any reason appearing as of record.” Commonwealth v. Wholaver, 177 A.3d 136,
144-45 (Pa. 2018) (citations omitted). In this case, Appellant acted pro se during his trial,
sentencing and direct appeal. Accordingly, his right to assert claims of ineffectiveness of
counsel under Section 9544(a)(2) is circumscribed. “[W]e will not consider any
ineffectiveness claims that arise from the period of self-representation.” Commonwealth
v. Bryant, 855 A.2d 726, 737 (Pa. 2004).
III. Appellant’s Issues
Appellant raises fourteen issues. The bulk of these allege trial court error or
prosecutorial misconduct in the pretrial, trial and sentencing phases of his prosecution.
These issues bear a direct relationship with the issues Appellant asserted, in his June 4,
2003 and June 27, 2005 pro se motions, had been improperly omitted from his direct
appeal brief by standby counsel. We set forth the issues verbatim.
I. Is Appellant entitled to a new trial because the
prosecutor committed multiple acts of prosecutorial
misconduct that, individually and cumulatively, denied him a
fair trial and whose conduct amounted to a fraud on the court?
II. Was Appellant denied his constitutional rights to self -
representation, to be present, and to present a defense when
the trial court with standby counsel conducted a pre-trial
hearing without Appellant’s knowledge or consent and
excluded him from participating?
III. Were Appellant’s constitutional rights violated when
standby counsel objected to his closing argument and told the
jury that Appellant was not being truthful, thereby usurping his
right to represent himself and undermining his ability to
present a defense?
IV. Was Appellant denied his constitutional rights where
the trial court ordered Appellant to wear a stun belt at trial
without a hearing and without any threatening or inappropriate
behavior by Appellant?
V. Did the trial court violate Appellant’s rights to remain
silent and presumption of innocence when it commented that
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Appellant was testifying in closing argument and failed to
testify during trial?
VI. Were Appellant’s due process rights violated where the
trial court failed to provide a jury instruction on evidence of
other crimes committed by Curtis French?
VII. Was Appellant denied his rights to a fair trial and an
impartial jury because Lehigh County jury selection
procedures systematically excluded minorities?
VIII. Was Appellant denied his constitutional rights to
present a defense, to call witnesses on his behalf, to
confrontation, and to due process when the trial court
prohibited him from presenting evidence of his innocence?
IX. Was Appellant’s death sentence arbitrarily imposed
where the prosecution improperly admitted victim impact
evidence and the jury failed to give any effect to unrebutted
statutory mitigating factors presented during the sentencing
phase?
X. Did the trial judge err when he conducted himself in a
partial manner in this case?
XI. Were Appellant’s state and federal rights to self-
representation and due process violated where Pennsylvania
allow[ed] him to represent himself on appeal but then
undermined his right to self-representation when it accepted
a brief filed by standby counsel, over his objection, that did not
contain the issues Appellant wished to raise on appeal and
standby counsel was ineffective for failing to raise those
claims?
XII. Were Appellant’s rights to a full, fair, and complete
PCRA hearing violated?
XIII. Did the PCRA court err by failing to rule on Appellant’s
motion to amend his post-conviction petition docketed June
19, 2015?
XIV. Is Appellant entitled to relief because of the cumulative
effect of the errors in this case?
Appellant’s Brief at 1-3.
IV. Previous Litigation and/or Waiver of Issues
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We address first whether Appellant’s issues I through X raise claims for which he
is eligible for relief under the PCRA. This requires consideration of Appellant’s issue XI,
which includes his argument against the PCRA court’s waiver conclusions. As is evident
from Appellant’s statement of the issues quoted above, he does not expressly couch them
in terms of ineffective assistance of counsel. Rather, he raises direct issues of trial court
error or prosecutorial misconduct, which he claims the PCRA court erred in dismissing.
As noted above, the PCRA court deemed many of Appellant’s PCRA issues either
previously litigated or waived. PCRA Ct. Op., 1/31/17, at 3-4, 6, 7. Additionally, the
Commonwealth argues all of Appellant’s allegations of trial court error and prosecutorial
misconduct are ineligible for relief under the PCRA as being either waived or previously
litigated. Commonwealth’s Brief at 11-20.
Anticipating the issue, Appellant includes a section in his brief entitled “Statement
Relating to Waiver and Previous Litigation,” which incorporates his issue XI. Appellant’s
Brief at 5. In this regard, Appellant advances a blended argument that standby direct
appeal counsel was ineffective and that he interfered with Appellant’s right of self-
representation. “In addition to usurping [Appellant’s] right to self-representation, [standby
counsel] was ineffective for failing to set forth the numerous meritorious issues set forth
in this brief.” Appellant’s Brief at 96. Specifically, Appellant argues that his standby
counsel acted without his authorization when counsel filed a brief with this Court that
omitted the issues for which Appellant now seeks redress through the PCRA.6 Appellant
6 Appellant cites Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993) and Commonwealth
v. Rogers, 645 A.2d 223 (Pa 1994) in support of his contention that his right to self-
representation was violated. While these cases recognize a defendant’s right to choose
to represent him or herself, they address limitations on hybrid representation by
defendants who are represented by counsel on appeal.
A represented appellant may petition to terminate his
representation; he may, acting pursuant to the rules of
criminal procedure, proceed on his own behalf. Conversely,
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contends the PCRA court’s conclusion that Appellant acquiesced to a collaborative
relationship with standby counsel, allowing counsel to draft documents, is not borne out
by the record. He asserts he communicated with standby counsel only by letter and he
had sent standby counsel various drafts of issues to be included in the brief. He asserts
standby counsel improperly asserted control over the appeal, editing the issues to be
pursued in the appeal, and filing the brief without first securing Appellant’s approval or
signature. These circumstances, according to Appellant, demonstrate that his right to
self-representation was interfered with and, as a consequence, the issues he now
pursues cannot be deemed waived or previously litigated. For the various reasons
discussed below, we disagree and conclude the PCRA court did not err in dismissing
these claims.
The PCRA court determined, “based on the testimony [Appellant] acquiesced to
the collaborative role with standby counsel and had counsel write his brief. [Appellant]
accepted assistance of counsel, waiving his right to present a pro se brief on appeal, and
thus, such claim is rejected.” PCRA Ct. Op, 1/31/17, at 8. The Commonwealth equates
Appellant’s argument to an impermissible assertion of ineffective assistance of counsel
by a pro se defendant. Commonwealth Brief at 17 (citing Commonwealth v. Fletcher,
986, A.2d 759, 778 (Pa. 2009) (holding, in exercising one’s right to self-representation, [a
he may elect to allow counsel to take his appeal, but, should
counsel not prevail, assert counsel’s ineffectiveness at a later
time and, thus indirectly, assert the claims he would have
made on direct appeal. The only thing he may not do is
confuse and overburden the court by his own pro se filings of
briefs at the same time his counsel is filing briefs on his behalf.
Ellis, 626 A.2d at 1141. In Rogers, this Court held that a represented defendant does not
have the right to terminate counsel’s representation after counsel has filed an appellate
brief, merely because the defendant wishes to file a substitute pro se brief. Rogers, 645
A.2d at 224. It is not contested that Appellant in this case was acting pro se from the
commencement of his direct appeal.
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defendant] relinquishes many . . . benefits . . ., including the future right to allege
ineffectiveness of counsel”)). The Commonwealth asserts this conclusion is not
diminished simply because standby counsel may have taken an active role. Id. at 20,
n.3.
To the extent Appellant is asserting ineffective assistance of standby counsel, we
note the law is clear that he may not do so.
When a defendant elects to proceed at trial pro se, the
defendant—and not standby counsel—is in fact counsel of
record and is responsible for trying the case. This
understanding of the limited role of standby counsel is
essential to satisfy the United States Supreme Court’s
directive that a defendant’s choice to proceed pro se “must be
honored out of ‘that respect for the individual which is the
lifeblood of the law’” even when the defendant acts to his or
her own detriment. [Faretta v. California, 422 U.S. 806, 834
(1975)]. This understanding also underlies our prior holding
that a defendant who chooses to represent himself cannot
obtain relief by raising a claim of ineffectiveness of counsel or
standby counsel.
Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012) (some citations omitted).
On the other hand, to the extent Appellant claims standby counsel interfered with
his right of self-representation, he is asserting an issue about the proper scope of the
standby counsel’s role and the court’s role in assuring it does not supplant a defendant’s
choice of self-representation. The United States Supreme Court recognized a
defendant’s right to self-representation in Faretta v. California, 422 U.S. 806 (1975).
Subsequently, the Court, in McKaskle v. Wiggins, 465 U.S. 168 (1984), reviewed the
effect participation by standby counsel may have on that right. Therein, the Court noted
that Faretta did not impose an “absolute bar on standby counsel’s unsolicited
participation.” McKaskle, 465 U.S. at 176. The Court described two interests served by
limitation of standby counsel’s independent action. The first concerned a defendant’s
right to preserve control over the case he or she wishes to present. Id. at 178. The
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second concerned the perception of the jury regarding a defendant’s self-representation.
Id. In the appeal context, therefore, only the first interest is implicated.
Faretta rights are adequately vindicated in proceedings
outside the presence of the jury if the pro se defendant is
allowed to address the court freely on his own behalf and if
disagreements between counsel and the pro se defendant are
resolved in the defendant’s favor whenever the matter is one
that would normally be left to the discretion of counsel.
Id. at 179.7
As mentioned, the PCRA court determined that Appellant acquiesced to standby
counsel’s collaborative role during his appeal. Contrary to Appellant’s assertion, we
conclude the record supports this finding. Petitioner concedes that he sent potential
issues to counsel to review for inclusion in his Appellate brief. Appellant’s Brief at 93.
7 We recognize that the United States Supreme Court has held that the right of self-
representation stems from the Sixth Amendment to the United States Constitution, which
addresses trial rights, and, as such, there is no Federal Constitutional right to self-
representation in connection with the statutory right to appeal.
[W]e conclude that neither the holding nor the reasoning in
Faretta requires California to recognize a constitutional right
to self-representation on direct appeal from a criminal
conviction. Our holding is, of course, narrow. It does not
preclude the States from recognizing such a right under their
own constitutions.
Martinez v. California, 528 U.S. 152, 163 (2000). We have acknowledged Martinez’s
holding, but have not directly addressed whether there exists a right to self-representation
on direct appeal under the Pennsylvania Constitution. See Commonwealth v. Davido,
868 A.2d 431, 444 (Pa. 2005) (acknowledging Martinez and holding the right to self-
representation includes the penalty phase in a capital case); Commonwealth v. Staton,
12 A.3d 277, 282 (Pa. 2010) (acknowledging Martinez, but resolving the issue on other
grounds while assuming, without determining, such a right exists). In the instant case,
neither the parties nor the PCRA court have addressed the issue of a state constitutional
right to self-representation on appeal. However, the record of Appellant’s direct appeal
evidences his pro se status was recognized. Therefore, as in Staton, we will assume for
argument’s sake that Appellant’s right to self-representation extended to his direct appeal
in this case and resolve the issue on other grounds.
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The record of Appellant’s direct appeal with this Court demonstrates that Appellant
deferred to standby counsel to file numerous remand requests and motions for extension
to file a brief. Thus, the record supports the PCRA court’s conclusion that Appellant
approved of standby counsel’s collaborative assistance in drafting and submitting filings
with this Court during his direct appeal. The fact that Appellant objected to the failure to
include various issues in the appellate brief subsequently submitted, does not mean that
standby counsel usurped or unduly interfered with Appellant’s right of self-representation.
McKaskle, 465 U.S. at 187. Appellant’s complaint is not with the fact standby counsel
drafted the appellate brief, but with the manner in which he drafted the brief. This
implicates the issue of counsel’s effectiveness, which, as noted above, is not an issue
Appellant can pursue in his PCRA petition. Spotz, 47 A.3d at 83. It also runs afoul of the
general prohibition against hybrid representation. Ellis, 626 A.2d at 1141.
Furthermore, and more significantly, Appellant raised these identical arguments
with this Court during his direct appeal. In two motions following the filing of his appellate
brief, Appellant alleged standby counsel acted without authority in excluding the subject
issues from his appellate brief, thus interfering with his right of self-representation.
Appellant sought leave to file a new pro se Appellate brief or amended brief, adding the
omitted issues. Significantly, Appellant did not at the time disavow the eighteen issues
contained in the original brief. As recited above, this Court denied both motions and
affirmed Appellant’s judgment of sentence.8 Appellant appealed that decision, but the
8 Justice Wecht, in his Concurring Opinion, suggests we mistakenly characterize
Silverman’s status as continuing to be that of standby counsel after this Court denied
Appellant’s motions for special relief during his direct appeal. Justice Wecht maintains
that our denial of those motions “necessarily presumed Williams’ acquiescence to
Silverman’s full representation.” Conc. Op. at 5. However, the orders denying Appellant’s
applications contain no explanation for the rulings, and furthermore, our docket for the
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United States Supreme Court denied certiorari. Accordingly, the argument Appellant
advances has already been adjudicated. Appellant may not resurrect the issue in the
guise of a PCRA petition. 42 Pa.C.S. § 9543(a)(3).9 Accordingly, we discern no error or
abuse of discretion by the PCRA court in dismissing Appellant’s PCRA issues as
previously litigated or waived.10
V. Allegations of PCRA Court Error
In his issue XII, Appellant claims the Commonwealth interfered with his right to a
full and fair PCRA proceeding by intimidating and interfering with two of his witnesses.
Appellant avers that the Commonwealth caused Waldemar Cortez to withdraw a previous
statement he had made against then ADA Dantos, and that Dantos conspired with Louis
direct appeal continues to reflect Appellant’s representation status as pro se with
Silverman as standby counsel. See 357 CAP (docket).
9Appellant does not articulate an alternative basis for consideration of his allegations of
prosecutorial misconduct based on after discovered evidence, or through discovery
during the PCRA proceedings.
[T]o prevail on an after-discovered evidence claim for relief
under subsection 9543(a)(2)(vi), a petitioner must prove that
(1) the exculpatory evidence has been discovered after trial
and could not have been obtained at or prior to trial through
reasonable diligence; (2) the evidence is not cumulative; (3) it
is not being used solely to impeach credibility; and (4) it would
likely compel a different verdict.
Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017). Absent a developed argument
demonstrating compliance with that burden, we deem such issue waived.
Commonwealth v. D'Amato, 856 A.2d 806, 814, (Pa. 2004).
10 Appellant’s issues I through X correspond, as he asserts, with the issues he tried to
raise through his June 4, 2003 and June 27, 2005 motions. The Commonwealth points
out, however, that as argued, Appellant’s issues also overlap with issues he properly
raised and litigated on appeal. See Commonwealth Brief at 16, PCRA Ct. Op., 1/31/17,
at 3-4. It is the extent such issues overlap that we deem previously litigated. The issues
representative of the issues delineated by Appellant in his June 4, 2003 and June 27,
2005 motions are waived. See Pa.C.S. §9544.
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Washington to the effect that Washington refused to answer questions about
correspondence he had maintained with Dantos. Appellant’s Brief at 98-100. The
Commonwealth responds that Appellant is merely dissatisfied with the information
provided by his own witnesses during the PCRA hearings, which were conducted over
numerous days of testimony spanning more than sixteen months. The Commonwealth
asserts Appellant’s characterization of a “grand conspiracy” is the result of pure
speculation unsupported by the record. Commonwealth’s Brief at 99-100. We agree.
Appellant merely references the testimony of the witnesses which demonstrates their
reluctance to testify and their fear of consequences if they testified falsely. We find no
basis in the record to disturb the PCRA court’s finding that Appellant’s claim that his due
process rights were violated is meritless. See PCRA Ct. Op, 1/31/17, at 8.
Relatedly, Appellant claims in his issue XIII, that the PCRA court erred in failing to
rule on his June 19, 2015 motion to amend his PCRA petition to conform to evidence
adduced at the PCRA hearing. Appellant identifies two items he wished to include in the
amendment. The first consisted of averments relative to the purported interference of the
Commonwealth with his PCRA witnesses as discussed above. The second was an
allegation that the trial court interfered with his right to remain silent (Appellant’s issue V,
supra). Appellant notes that the PCRA court addressed the issue in its PCRA opinion,
finding the trial court’s comment admonishing Appellant not to testify during his closing
argument to the jury was proper and did not infringe on Appellant’s right to remain silent.
See PCRA Ct. Op., 1/31/17, at 9. We discern no error. Relative to the first proposed
amendment, we note the averments do not constitute a PCRA claim. Appellant’s
concerns about the Commonwealth’s actions during the PCRA proceedings needed to
be raised before the PCRA court by objection, motion or argument, but do not constitute
an additional PCRA claim requiring amendment of the PCRA petition. See 42 Pa.C.S. §
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9543(a). Relative to the second proposed amendment, we note the PCRA court
addressed the issue, implying it accepted the amended claim. Furthermore, the claim is
not derived from evidence adduced during the PCRA hearing to which it can conform.
Nevertheless, for the reasons outlined above, we conclude the issue had been waived.
Appellant did not raise the issue before the trial court and presents no reason for failing
to do so. Accordingly, Appellant is due no relief based on the PCRA court failing to
expressly grant his motion to amend.
Finally, Appellant avers he is entitled to relief based on the cumulative effect of the
errors alleged. “A bald averment of cumulative prejudice does not constitute a claim.”
Spotz, 47 A.3d 63 at 129 (quoting Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d
277, 319 (2011)). “[N]o number of claims that have been denied because of lack of merit
can collectively warrant relief.” Commonwealth v. Bardo, 105 A.3d 678, 717 (Pa. 2014).
Because Appellant has not presented a meritorious issue eligible for relief under the
PCRA, it follows that no relief is due under a claim of cumulative prejudice.
VI. Conclusion
Based upon the foregoing, we affirm the order of the PCRA court dismissing
Appellant’s PCRA petition.11
Chief Justice Saylor and Justices Baer and Donohue join the opinion.
Justice Wecht files a concurring opinion in which Justice Todd joins.
Justice Dougherty concurs in the result.
11 In accordance with 42 Pa.C.S. § 9711(i), the Prothonotary of the Supreme Court is
directed to transmit the complete record of this case to the Governor.
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