Com. v. Brown, R. ( 2022 )


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  • J-S04040-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    RAHEEM BROWN                               :
    :
    Appellant               :   No. 975 EDA 2021
    Appeal from the PCRA Order Entered May 5, 2021
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0010356-2013
    BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                      FILED FEBRUARY 10, 2022
    Raheem Brown appeals from the May 5, 2021 order dismissing his
    petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
    §§ 9541-9546. After careful review, we affirm.
    The PCRA court summarized the relevant facts and procedural history
    of this case as follows:
    On June 11, 2013, [Appellant] was arrested and
    charged with second degree murder, conspiracy,
    burglary, robbery and [carrying a firearm without a
    license], in connection with the robbery and shooting
    death of Rush Thompson [“Thompson”]. From May 5
    to May 15, 2015, [Appellant] and his co-defendant
    Emmanuel Duran were tried before this Court in the
    presence of a jury. [Appellant] was represented by
    Michael Huff, Esquire. On May 15, 2015, the jury
    found [Appellant] guilty of all charges. That same day,
    this Court sentenced him to the mandatory sentence
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-S04040-22
    of life imprisonment without the possibility of parole
    on the second-degree murder charge, 20 to 40 years
    state incarceration on conspiracy, 10 to 20 years state
    incarceration on robbery, 10 to 20 years state
    incarceration on burglary, and 3½ to 7 years state
    incarceration on [carrying a firearm without a license].
    All of the terms were to run concurrently with one
    another. [Appellant] filed a post-sentence motion for
    reconsideration on May 22, 2015. This was denied by
    operation of law on September 30, 2015. On October
    1, 2015, [Appellant] filed a Notice of Appeal to the
    Superior Court; the Superior Court affirmed his
    judgment of sentence on December 28, 2016. On June
    27, 2017, the Pennsylvania Supreme Court denied
    [Appellant’s] petition for allowance of appeal.[1]
    On July 14, 2017, [Appellant] filed the instant first and
    timely pro se PCRA petition. On January 19, 2018,
    [Appellant] filed a pro se Amended Petition. On
    March 15, 2018, George Yacoubian, Esquire was
    appointed as PCRA counsel. On August 3, 2018,
    [Appellant] filed a motion to proceed pro se. On May
    8, 2019, this Court conduced a Grazier2 hearing and
    permitted [Appellant] to proceed pro se. On June 28,
    2019, [Appellant] filed a pro se supplemental
    petition. On July 15, 2019, [Appellant] retained Teri
    Himebaugh, Esquire as private counsel. On November
    11, 2019, Ms. Himebaugh filed an Amended Petition.
    On February 20, 2020, she filed a Supplemental
    Petition. On December 16, 2020, the Commonwealth
    filed its Motion to Dismiss. On April 5, 2021, this Court
    sent [Appellant] a Notice of Intent to Dismiss Pursuant
    to Rule 907. [Appellant] did not reply to the 907
    Notice. On May 5, 2021, this Court dismissed
    [Appellant’s] petition based upon lack of merit. On
    May 13, 2021, [Appellant] appealed this dismissal to
    Superior Court.
    ____________________________________________
    1See Commonwealth v. Brown, 
    159 A.3d 1016
     (Pa.Super. 2016), appeal
    denied, 
    169 A.3d 595
     (Pa. 2017).
    2   Commonwealth v. Grazier, 
    713 A.2d 81
     (Pa. 1998).
    -2-
    J-S04040-22
    PCRA court opinion, 8/20/21 at 1-2 (footnotes added).
    The PCRA court did not order Appellant to file a concise statement of
    errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
    Thereafter, on August 20, 2021, the PCRA court filed a comprehensive Rule
    1925(a) opinion addressing all of Appellant’s claims.
    Appellant raises the following issues for our review:
    I.     Did the PCRA Court err when it found that trial
    counsel did not violate Appellant’s rights under
    the Sixth and Fourteenth Amendments of the
    U.S. Constitution and Article 1 section 9 of the
    Pennsylvania Constitution by ineffectively failing
    to make the correct argument in support of
    severance?
    II.    Did the PCRA Court err when it found that trial
    counsel did not violate Appellant’s rights under
    the Sixth and Fourteenth Amendments of the
    U.S. Constitution and Article 1 section 9 of the
    Pennsylvania Constitution by ineffectively failing
    to request that the Court give the jury a
    contemporaneous instruction on the limited
    purpose for which they could consider Myron
    Baker’s testimony about the November 9, 2009
    robbery evidence in relation to Appellant’s guilt
    or innocence?
    III.   Did the PCRA Court err when it found that trial
    counsel did not violate Appellant’s rights under
    the Sixth and Fourteenth Amendments of the
    U.S. Constitution and Article 1 section 9 of the
    Pennsylvania Constitution by ineffectively failing
    to request an immediate cautionary instruction
    be given in relation to the testimony of Myron
    Baker, who violated the Court’s Sequestration
    Order?
    IV.    Did the PCRA Court err when it found that trial
    counsel did not violate Appellant’s rights under
    -3-
    J-S04040-22
    the Sixth and Fourteenth Amendments of the
    U.S. Constitution and Article 1 section 9 of the
    Pennsylvania Constitution by ineffectively failing
    to object to the prosecutor’s opening statement
    which vouched for the reliability of the
    identification   made     by    []   eyewitness
    Fahnbulleh[?]
    V.    Did the PCRA Court err in finding that
    Appellant’s constitutional right to due process of
    law and a fair trial was not violated by the
    cumulative    impact     of    trial   counsel[’s]
    ineffectiveness in violation of the Sixth
    Amendment?
    Appellant’s brief at 3-4.
    Proper appellate review of a PCRA court’s dismissal of a PCRA petition
    is limited to the examination of “whether the PCRA court’s determination is
    supported by the record and free of legal error.” Commonwealth v. Miller,
    
    102 A.3d 988
    , 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
    findings will not be disturbed unless there is no support for the findings in the
    certified record.” Commonwealth v. Lawson, 
    90 A.3d 1
    , 4 (Pa.Super. 2014)
    (citations omitted). “This Court grants great deference to the findings of the
    PCRA court, and we will not disturb those findings merely because the record
    could support a contrary holding.” Commonwealth v. Hickman, 
    799 A.2d 136
    , 140 (Pa.Super. 2002) (citation omitted).
    All of Appellant’s claims concern the ineffectiveness of his trial counsel.
    To prevail on a claim of ineffective assistance of counsel under the PCRA, a
    petitioner must plead and prove by a preponderance of the evidence that
    counsel’s ineffectiveness “so undermined the truth-determining process that
    -4-
    J-S04040-22
    no reliable adjudication of guilt or innocence could have taken place.”
    42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining
    whether trial counsel was ineffective, derived from the test articulated by the
    United States Supreme Court in Strickland v. Washington, 
    466 U.S. 668
    ,
    687 (1984), and as applied in Commonwealth v. Pierce, 
    527 A.2d 973
     (Pa.
    1987). Commonwealth v. Simpson, 
    66 A.3d 253
    , 260 (Pa. 2013).
    The Pierce test requires a PCRA petitioner to prove:
    (1) the underlying legal claim was of arguable merit;
    (2) counsel had no reasonable strategic basis for his
    action or inaction; and (3) the petitioner was
    prejudiced—that is, but for counsel’s deficient
    stewardship, there is a reasonable likelihood the
    outcome of the proceedings would have been
    different.
    
    Id.,
     citing Pierce, 527 A.2d at 975.
    This court has explained that a petitioner “must meet all three prongs
    of the test for ineffectiveness[.]” Commonwealth v. Charleston, 
    94 A.3d 1012
    , 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),
    appeal denied, 
    104 A.3d 523
     (Pa. 2014).          “[C]ounsel is presumed to be
    effective and the burden of demonstrating ineffectiveness rests on appellant.”
    Commonwealth v. Ousley, 
    21 A.3d 1238
    , 1244 (Pa.Super. 2011) (citation
    omitted), appeal denied, 
    30 A.3d 487
     (Pa. 2011).
    Following a thorough review of the record, including the briefs of the
    parties, the applicable law, and the well-reasoned opinion of the PCRA court,
    it is our determination that Appellant’s ineffectiveness claims warrant no relief.
    The PCRA court comprehensively discussed each of Appellant’s allegations of
    -5-
    J-S04040-22
    ineffective assistance of trial counsel and concluded that they failed to satisfy
    one or more prongs of the Pierce test.         We find that the PCRA court’s
    conclusions are supported by competent evidence and are clearly free of legal
    error.
    Specifically, we agree with the PCRA court that Appellant failed to
    demonstrate that there was a reasonable probability that the outcome of the
    trial would have been different had he been tried separately from his co-
    defendant. See PCRA court opinion, 8/20/21 at 4-5. Likewise, we agree with
    the PCRA court that trial counsel had a reasonable basis for not requesting a
    limiting instruction with respect to Myron Baker’s testimony, as it could have
    served to highlight negative evidence. Id. at 5-6.
    We further agree with the PCRA court that trial counsel was not
    ineffective for failing to request an immediate cautionary instruction with
    respect to Baker’s testimony, as the record demonstrated his violation of the
    trial court’s sequestration order was unintentional and trial counsel was
    provided the opportunity to question him. Id. at 6-7. Additionally, we agree
    with the PCRA court that the prosecutor did not improperly vouch for the
    credibility of eyewitness Wuyatta Fahnbulleh during his opening statement
    and Appellant’s ineffectiveness claim in this regard is devoid of arguable merit.
    Id. at 7-8.
    Lastly, we agree with the PCRA court that Appellant is not entitled to
    relief on his claim that the cumulative prejudice suffered from trial counsel’s
    -6-
    J-S04040-22
    purported ineffectiveness rendered his trial unconstitutionally unfair. See id.
    at 9-10; Appellant’s brief at 52-55.
    In reaching this conclusion we note that our Supreme Court has long
    recognized that “no number of failed [ineffectiveness] claims may collectively
    warrant relief if they fail to do so individually.” Commonwealth v. Johnson,
    
    966 A.2d 523
    , 532 (Pa. 2009) (citations omitted). “[W]here a claimant has
    failed to prove prejudice as the result of any individual errors, he cannot
    prevail on a cumulative effect claim unless he demonstrates how the
    particular cumulation requires a different analysis.”       Commonwealth v.
    Wright, 
    961 A.2d 119
    , 158 (Pa. 2008) (emphasis added).
    Here, we agree with the PCRA court that Appellant has failed to do so in
    this instance. Appellant’s ineffectiveness claims at issue are, in large part,
    factually and legally independent, with no reasonable connection warranting
    a conclusion that their cumulative effect amounts to actual prejudice.
    Accordingly, we adopt the PCRA court’s comprehensive August 20, 2021
    opinion as our own for purposes of this appellate review.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/10/2022
    -7-
    Circulated 02/04/2022 09:58 AM
    IN THE COURT OF COMMON PLEAS
    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
    CRIMINAL TRIAL DIVISION
    COMMONWEALTH                                                       CP-51-CR-0010356-2013
    FILED
    A 20 2021
    vs,
    Olfce of Judicial Records
    Appeals/Post Trial
    SUPERIOR COURT
    RAHEEM DROWN                                                       975 EDA 2021
    OPINION
    DRINKLEY, J.                                                       AUGUST 20, 2021
    Defendant Raheem Brown filed a first and timely petition for relief pursuant to the Post
    Conviction Relief Aet (PCRA), 42 Pa.C.S.A. § 9541 et seq. (eff. Jan. 16, 1996), claiming
    ineffective assistance of counsel and relief based upon cumulative error. After independently
    reviewing Defendant's pro se petition and subsequent prose filings, counsel's amended and
    supplemental petitions, and the Commonwealth's motion to dismiss, this Court dismissed
    Defendant's petition based upon lack of merit. Defendant appealed this dismissal to Superior
    Court. This Court's dismissal should be affirmed.
    Background
    On June 11, 2013, Defendant was arrested and charged with second degree murder,
    conspiracy, burglary, robbery and VUFA 6106, in connection with the robbery and shooting
    death of Rush Thompson ["Thompson"]. From May 5 to May 15, 2015, Defendant and his co-
    defendant Emmanuel Duran were tried before this Court in the presence of a jury. Defendant was
    represented by Michael Huff, Esquire. On May 15, 2015, the jury found Defendant guilty of all
    charges. That same day, this Court sentenced him to the mandatory sentence of life
    imprisonment without the possibility of parole on the second degree murder charge, 20 to 40
    years state incarceration on conspiracy, IO to 20 years state incarceration on robbery, 10 to 20
    years state incarceration on burglary, and 3 ½ to 7 years state incarceration on VUFA 6106. All
    of the terms were to run concurrently with one another. Defendant filed a post-sentence motion
    for reconsideration on May 22, 2015. This was denied by operation of law on September 30,
    2015. On October 1, 2015, Defendant filed a Notice of Appeal to the Superior Court; the
    Superior Court affirmed his judgment of sentence on December 28, 2016. On June 27, 2017, the
    Pennsylvania Supreme Court denied Defendant's petition for allowance of appeal.
    On July 14, 2017, Defendant filed the instant first and timely pro se PCRA petition. On
    January 19, 2018, Defendant filed a prose Amended Petition. On March 15, 2018, George
    Yacoubian, Esquire was appointed as PCRA counsel. On August 3, 2018, Defendant filed a
    motion to proceed pro se. On May 8, 2019, this Court conduced a Grazier hearing and permitted
    Defendant to proceed prose. On June 28, 2019, Defendant filed a prose supplemental petition.
    On July 15, 2019, Defendant retained Teri Himebaugh, Esquire as private counsel. On
    November 11, 2019, Ms. Himebaugh filed an Amended Petition. On February 20, 2020, she filed
    a Supplemental Petition. On December 16, 2020, the Commonwealth filed its Motion to Dismiss.
    On April 5, 2021, this Court sent Defendant a Notice of Intent to Dismiss Pursuant to Rule 907.
    Defendant did not reply to the 907 Notice. On May 5, 2021, this Court dismissed Defendant's
    petition based upon lack of merit. On May 13, 2021, Defendant appealed this dismissal to
    Superior Court.
    2
    Discussion
    When reviewing the denial of PCRA relief, the appellate court's review is limited to
    determining whether the PCRA court's findings are supported by the record and without legal
    error. Commonwealth v, Edmiston, 
    619 Pa. 549
    , 
    65 A.3d 339
    , 345 (2013) (citing
    Commonwealth v, Breakiron, 
    566 Pa. 323
    , 
    781 A.2d 94
    , 97 n. 4 (2001)). The court's scope of
    review is limited to the findings of the PCRA court and the evidence on the record of the PCRA
    court's hearing, viewed in light most favorable to the prevailing party. Commonwealth_v. Fahy,
    
    598 Pa. 584
    , 
    959 A.2d 312
    , 316 (2008) (citing Commonwealth y, Duffey, 
    585 Pa. 493
    , 
    889 A.2d 56
    , 61 (2005)). The burden is on the petitioner in the PCRA petition to demonstrate by a
    preponderance of the evidence that he or she is eligible for PCRA relief. 42 Pa.C.S.A     $ 9543.
    This Court properly dismissed Defendant's petition because all of his claims of
    ineffective assistance of counsel are without merit. To prevail on a claim alleging counsel's
    ineffectiveness under the PCRA, the appellant must demonstrate (I) that the underlying claim is
    of arguable merit; (2) that counsel's course of conduct was without a reasonable basis; and (3)
    that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but
    for the act or omission in question the outcome of the proceedings would have been different.
    Commonwealth v. Timchak, 
    2013 PA Super 157
    , 
    69 A.3d 765
    , 769 (2013) (citing
    Commonwealth v, Wah, 
    42 A.3d 335
    , 338 (Pa.Super.2012)). 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. 
    Id.
     (citing 42 Pa.C.S. § 9543(a)(2)(ii)). Counsel's assistance is
    deemed constitutionally effective once the court determines that the defendant has not
    3
    established any one of the prongs of the ineffectiveness test. Id. (citing Commonwealth v. Rolan,
    
    964 A.2d 398
    , 406 (Pa.Super.2008)) To establish prejudice, the defendant must show that there
    is a reasonable probability that the outcome of th~ proceedings would have been different but for
    counsel's action or inaction. Commonwealth v. Davida, I 
    06 A.3d 611
    , 621 (Pa. 2014) (citing
    Commonwealth v, Williams, 
    587 Pa. 304
    , 
    899 A.2d 1060
    , 1064 (2006)). When an appellant fails
    to meaningfully discuss each of the three ineffectiveness prongs, "be is not entitled to relief, and
    we are constrained to find Such claims waived for lack of development." Commonwealth y,
    Fears, 
    624 Pa. 446
    , 461, 
    86 A.3d 795
    , 805 (2014) (quoting Commonwealth y. Steele, 
    599 Pa. 341
    , 361, 
    961 A.2d 786
    , 797 (2008) ("[U]ndeveloped claims, based on boilerplate allegations,
    cannot satisfy Appellant's burden of establishing ineffectiveness.").
    I.     Trial counsel was not ineffective for the argument he made in favor of
    severance, which this Court ultimately denied.
    First, trial counsel was not ineffective for failing to make the "correct" argument in
    support of severance. Defendant argues that trial counsel inadvertently argued for joinder instead
    of severance, and that counsel should have argued that severance was necessary because some
    evidence was admissible against only co-defendant Duran but allegedly was prejudicial to
    Defendant. This claim is without merit.
    Pursuant to Pa.R.Crim.P. 582(A)(2), "[djefendants charged in separate indictments or
    informations may be tried together if they are alleged to have participated in the same act or
    transaction or in the same series of acts or transactions constituting an offense or offenses."
    Whether to sever or join a defendant's trial from his/her codefendant's is a matter entrusted to
    the discretion of the trial court and that decision will not be disturbed absent a manifest abuse of
    discretion or prejudice and clear injustice to the defendant. Commonwealth v. Spotz, 
    756 A.2d 1139
    , 
    562 Pa. 498
     (2000). The Pennsylvania Supreme Court has set forth the Lark, infra, test to
    4
    determine whether severance is proper: (I) whether the evidence of each the offenses would be
    admissible in a separate trial for the other; (2) whether the evidence is capable of separation by
    the jury so as to avoid danger of confusion; and (3) whether the defendant will be unduly
    prejudiced by consolidation. Commonwealth v. Collins, 
    703 A.2d 418
    , 422 (Pa. 1997)(citing
    Commonwealth y. Lark, 
    518 Pa. 290
    , 302, 
    543 A.2d 491
    , 496-97 (1988)).
    In the case at bar, this Court properly determined that a joint trial was appropriate in this
    case and this Court would not have reached a different conclusion had trial counsel made the
    argument Defendant now claims is the correct one. Defendant and co-defendant Duran were both
    charged with murder, conspiracy and related charges based upon nearly the exact same evidence
    and witnesses. Defendant claims that he was prejudiced by evidence of Duran's involvement in
    the robbery of Myron Baker the morning after the murder. However, the evidence showed that
    both Defendant and Duran robbed Baker using a weapon similar to the one used to rob
    Thompson. This evidence was admissible to prove Defendant's identity as a participant in
    Thompson's robbery and murder. Whether the weapon was in the fact the same one used in both
    crimes went to the weight that the jury placed upon the evidence, not admissibility. Moreover,
    Defendant has failed to establish that he was prejudiced by being tried with Duran. He failed to
    demonstrate that there was a reasonable probability that the outcome of the trial would have been
    different had he been tried separately from Duran. Accordingly, no relief is due.
    II.     Trial counsel was not ineffective for failing to request an instruction limiting
    the jury's consideration of Myron Baker's testimony.
    Defendant argues that trial counsel was ineffective for failing to request that this Court
    give a contemporaneous instruction on the limited purpose for which they could consider Myron
    Baker's testimony regarding the November 9, 2009 robbery in relation to Defendant's guilt or
    innocence. This claim is without merit. Defendant is unable to show that counsel had no
    5
    reasonable basis for failing to request this instruction. The record shows that at several points
    during trial, trial counsel considered "other crimes" evidence concerns and whether limiting
    instructions were necessary and/or advisable. (N.T. 5/7/15, p. 36-75, 93-100). Trial counsel
    noted that he was concerned that additional limiting instructions could potentially serve to
    "highlight" negative evidence. [d. at 55. Thus, it is clear from the record that trial counsel
    carefully considered whether limiting instructions were advisable or would do more harm than
    good. Since it appears trial counsel had a reasonable basis for not requesting a limiting
    instruction with respect to Myron Baker's testimony, this claim is without merit. In addition,
    Defendant has failed to establish how he was prejudiced by the lack of a limiting instruction. No
    relief is due.
    III,     Trial counsel was not ineffective for failing to request an immediate
    cautionary instruction regarding the testimony of Myron Baker, who
    violated this Court's sequestration order.
    Trial counsel was not ineffective for failing to request an immediate cautionary
    instruction regarding Myron Baker's testimony. Defendant argues that "fg]iven the nature and
    importance of Baker's testimony and the Commonwealth's reliance on it being the key link in
    the evidentiary chain ultimately leading to [Defendant], counsel should have asked the Court
    give both an immediate and a final instruction to the jury." Am. Pet. p. 34-35. He further argues
    that this "instruction should have advised the jury that during this trial, the Court had ordered
    that witnesses are sequestered so that they cannot learn of other witnesses' testimony. Baker
    violated that order. They may use the fact that Baker violated the sequestration order to evaluate
    the credibility and weight to give his in-court testimony." Id. at 35. This claim is without merit.
    Where a violation of a sequestration order occurs, the remedy selected "is within the
    sound discretion of the trial court. In exercising its discretion, the trial court should consider the
    seriousness of the violation, its impact on the testimony of the witness, and its probable impact
    6
    on the outcome of the trial. We will disturb the trial court's exercise of its discretion only if there
    is no reasonable ground for the action taken." Commonwealth v. Rose, 
    172 A.3d 1121
    , 1127
    (Pa.Super.2017)(quoting Commonwealth         y, Smith,   
    464 Pa. 314
    , 
    346 A.2d 757
    , 760 (1975)).
    The record shows that while Edward Brooks was testifying, Myron Baker arrived at the
    courtroom but instead of waiting outside in the hall, he entered the courtroom and sat in the
    galJery. Once this Court was made aware of his presence, this Court questioned Baker and
    determined that this sequestration violation was unintentional. (N.T, 5/6/15, p. 151-56, 215-24)
    Counsel then had the opportunity to question Baker as to whether Brooks' testimony would
    impact his own testimony and counsel determined that he had not been influenced by what he
    heard Brooks say. Id. at 215-24. Thus, this Court chose an appropriate remedy-allowing
    counsel to question Baker to his satisfaction-and had a reasonable basis for doing so. Defendant
    makes no argument that this remedy was wueasonable, beyond claiming that counsel
    "ineffectively chose not to request" that an instruction be given to the jury and that counsel's
    "decision not to actively advocate on his client's behalf was not in his client's best interest."
    Since Defendant is unable to show that counsel's decision to accept this Court's reasonable
    remedy was prejudicial in any way, no relief is due.
    IV,     Trial counsel was not ineffective for failing to object to the prosecutor's
    opening statement where he allegedly "vouched" for the reliability of the
    identification made by witness Fahnbulleh.
    Defendant argues that trial counsel was ineffective for failing to object to the prosecutor's
    opening statement, where he told the jury:
    Remember, when we have detectives investigate something, we
    have, now in 201 S, and back then in 2009, a lot of pictures. We
    have-if you ever been arrested, got a driver's license. There are
    pictures in the database. But we have to know a little bit more to be
    able to put those pictures in front of witnesses. We can't just put
    the seven billion people on this planet, and say pick out who they
    are.
    7
    (N.T. 5/15/15, p. 34). Defendant argues that the inference "was that the police had some sort of
    unidentified but reliable evidence that made them put [Edward] Brook's photo in the array that
    was shown to Fahnbulleh." Am. Pet. p. 38. This claim is without merit.
    Although it is not proper for a prosecutor to offer a personal opinion as to the credibility
    of the defendant or other witness, prosecutors are permitted to comment upon the credibility of
    the defendant or a witness. Commonwealth v. Sanchez, 
    82 A.3d 943
    , 981 (Pa. 2013) (citing
    Commonwealth v. Chmiel, 
    585 Pa. 547
    ,
    889 A.2d 501
    ,545 (2005)). Even an otherwise
    improper comment may be appropriate if it is in fair response to defense counsel's remarks.
    Commonwealth y, Burno, 
    96 A.3d 956
    , 974 (Pa. Super, 2014) (quoting Commonwealth             v,
    Elliott, 80 .2d 415, 443 (Pa. 2013). Furthermore, a prosecutor's comments do not constitute
    reversible error unless their unavoidable effect was to prejudice the jury, forming in their minds
    fixed bias and hostility towards the defendant so that they could not weigh the evidence
    objectively and render a true verdict. 
    Id.
    In the case at bar, the prosecutor did not improperly vouch for Fahnbulleh's credibility
    with this statement. Rather, he simply explained identification procedures used by law
    enforcement. In addition, he was anticipating and responding to defense counsel's argument that
    the police should have shown Fahnbulleh a photo of Troy Rawlinson, aka "Scooty," whom
    Defendant argues was the actual killer. Police had no reason to show Fahnbulleh a photo of
    Scooty, but did have reason to show her a photo of Brooks, the third individual who participated
    in Thompson's murder and subsequently pled guilty to this crime. As with each of Defendant's
    claims above, he also has failed to demostrate how he was prejudiced in any way. Accordingly,
    no relief is due.
    8
    V,     Cumulative Error Claim--No Relief is Due
    Defendant argues that he is owed relief based upon the "cumulative en ors" in his case
    that the believes amounted to ineffective assistance of counsel. He claims that he is "still entitled
    to relief on the basis that the cumulative prejudice resulting from the errors undermined the
    fundamental fairness of his trial and denied him his constitutional right to due process."
    Amended Petition, p. 39. He argues that "each of counsels [sic] errors individually undermined
    his misidentification defense. When considered together [Defendant] was essentially left
    defenseless." Id. at 40, This claim is meritless.
    "[WJhere a claimant has failed to prove prejudice as a result of any individual errors, he
    cannot prevail on a cumulative effect claim unless he demonstrates how the particular
    cumulation requires a different analysis." Commonwealth y. Hutchinson, 
    611 Pa. 280
    , 318-19,
    
    25 A.3d 277
     (201 1)(quoting Commonwealth_v Wright, 
    599 Pa. 270
    , 
    961 A.2d 119
    , 158 (2008)).
    The claimant must set forth "a specific, reasoned, and legally and factually supported argument
    for the claim" of cumulative prejudice. Hutchinson, 
    25 A.3d at
    352 (citing Commonwealth y,
    Johnson, 
    600 Pa. 329
    , 
    966 A.2d 523
    , 532 (2009)). Bald claims of cumulative prejudice are
    insufficient. Hutchinson, 
    25 A.3d at 352
    .
    In the case at bar, Defendant has failed to demonstrate how the particular cumulation of
    alleged ineffective assistance of counsel prejudiced him in such a way that requires a different
    analysis. This Court reviewed each of his claims of ineffective assistance of counsel and
    determined that in each instance, the claim was meritless and Defendant failed to demonstrate
    prejudice. The record shows this Court properly allowed joinder of Defendant and co-
    defendant's cases and would not have reached a different conclusion if counsel had made the
    argument Defendant suggests. Counsel had a reasonable basis for not requesting a limiting
    instruction regarding Myron Baker's testimony since it could have served to highlight negative
    9
    evidence. This Court invoked the appropriate remedy when Myron Brooks unintentionally
    violated the sequestration order. Last, the prosecutor did not improperly vouch for a witness's
    credibility. Even when reviewed in the aggregate, these claims still do not amount to a denial of
    Defendant's due process by "undermining his misidentification defense" or "leaving him
    essentially defenseless." Each claim is meritless and Defendant has failed to demonstrate
    prejudice. As such, bis claim of cumulative prejudice must fail and no relief is due.
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    CONCLUSION
    After reviewing the applicable case law, statutes, and testimony, this Court committed no
    error. This Court properly dismissed Defendant's petition based upon lack of merit. Accordingly,
    no relief is due and this Court's dismissal should be affirmed.
    BY THE COURT:
    J.
    11