Com. v. Scott, D. ( 2018 )


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  • J-S21001-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                         :
    :
    :
    DONALD WILLIAM SCOTT                     :
    :
    Appellant             :   No. 1238 WDA 2016
    Appeal from the PCRA Order July 19, 2016
    In the Court of Common Pleas of Allegheny County Criminal Division at
    No(s): CP-02-CR-0018335-2008
    BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY OLSON, J.:                               FILED JULY 03, 2018
    Appellant, Donald William Scott, appeals from the order entered on July
    19, 2016, dismissing his petition filed under the Post-Conviction Relief Act
    (PCRA), 42 Pa.C.S.A. § 9541-9546.      We vacate in part and affirm in part.
    Specifically, we vacate the portion of the order that failed to grant Appellant
    relief on his illegal sentencing claim. We also vacate Appellant’s judgment of
    sentence and remand for re-sentencing. In all other respects, we affirm.
    The trial court previously explained the facts underlying Appellant’s
    convictions:
    This matter arises out of a shooting which took place in the
    early morning hours of November 23, 2008 in a parking lot
    adjacent to a building owned by [Appellant] in Wilkinsburg,
    [Pennsylvania]. The shooting resulted in the death of Derrick
    House and the wounding of William [Bennett]. . . .
    [Appellant] had rented out a room in his building for a
    birthday party that started at approximately 9:00 p.m. on
    J-S21001-18
    November 22. Although planned for a group of 30 to 40
    young teenagers, many more and much older teenagers
    arrived and were admitted to the party until there was well
    in excess of 80 people at the party. [Appellant] and other
    adults assisting him were searching the teenagers for
    weapons as they entered and providing security throughout
    the night. . . .
    The evidence establishes that the party, for the most part,
    remained orderly. However, as the party was ending a large
    group of the older teenagers were leaving and a fight erupted
    between Defendant and one of the older teenagers, Troy
    Cole, over a broken gold chain necklace being worn by Cole.
    This fight, which started inside the building, eventually spilled
    out into the street behind the building and an adjacent
    parking lot. . . .
    Once outside, several of the other teenagers also began
    threatening or attacking [Appellant], until he was able to
    retreat back inside the building. Shortly thereafter, Edric
    McArthur, one of the adults assisting [Appellant], while trying
    to disperse the group, also came under attack when he
    ventured outside the building. [Appellant] went back outside
    to aid McArthur and again was attacked until he and McArthur
    could get back inside. . . .
    After remaining inside for at least several minutes,
    [Appellant] decided to go to his car that was parked in the
    Save A Lot store parking lot, adjacent to his building. A video
    surveillance camera for the store captured the events that
    followed, which were also described by three witnesses who
    were in the parking lot, Shenita Howard, Bennett and Cole. .
    ..
    Bennett, . . . Howard and Cole all testified they saw
    [Appellant] running to his car and that a large group of the
    teenagers who had been lingering nearby saw [Appellant]
    and ran at him as he reached his vehicle. The Commonwealth
    described it as a group of 15 to 20 [teenagers]. The
    surveillance video clearly shows [Appellant] running to his
    vehicle and the teenagers converging on [Appellant] as he
    reaches his vehicle and struggling with him as he closes or
    attempts to close his door. One of those running towards the
    vehicle was the victim, House. . . .
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    The witnesses further testified that someone then yelled that
    [Appellant] had a gun. At that point, some of the attackers,
    including House, can be seen on the video running from
    [Appellant’s] vehicle. Within seconds, at least [three] shots
    were fired by [Appellant], one of which struck House as he
    was running with his back to [Appellant] approximately 40
    feet away. The bullet, which was believed by the medical
    examiner to be a high velocity bullet such as a .44 caliber,
    struck the back of the victim's head resulting in his death.
    The medical examiner also testified that there was no
    evidence of gunshot residue, soot or [stippling] which would
    indicate that House was at close range when shot. Bennett,
    who was running down Penn Avenue, was shot in his leg,
    shattering his femur, and arm.
    Howard testified that after seeing House shot, she saw
    [Appellant] standing or pacing outside his vehicle with a silver
    handgun and then he reentered his vehicle and pulled out
    from the parking lot. As [Appellant] pulled out of the parking
    lot [Sergeant] Henry Singer of the Wilkinsburg Police
    Department, who received a dispatch about a disturbance at
    12:20 a.m., pulled into the parking lot. . . .
    As he [was] approaching the scene, [Sergeant] Singer heard
    [four or five gunshots]. He identified the video from the
    surveillance camera which showed [Appellant’s] vehicle
    pulling out as he pulled into the lot. The video then showed
    [Sergeant] Singer approaching the victim as he lay in the
    parking lot. [Sergeant] Singer testified that he secured the
    area and later searched for evidence but found no shell
    casings, bullets, guns or other physical evidence.
    The Commonwealth called Officer Rory McLaughlin, a
    Department of Veterans Affairs police officer, who testified
    that at approximately 3:00 a.m. on November 23 he was
    dispatched to the VA [Hospital] by emergency room
    personnel because [Appellant] had come to the hospital
    saying he was involved in an incident in which shots were
    fired and he was injured. McLaughlin was dispatched to
    search [Appellant] for weapons. . . .
    McLaughlin testified that he spoke with [Appellant] and
    [Appellant] described being attacked twice, the second time
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    at his car, and that he then left the scene and he must have
    "passed out." [Appellant] did say that shots were fired,
    however, did not tell McLaughlin that he had fired a gun that
    night. He also told McLaughlin that he had not called the
    police, but that he needed to call to report the incident.
    McLaughlin found Defendant's cell phone on him, but no
    weapons. McLaughlin also testified that video surveillance at
    the hospital showed that [Appellant] entered the hospital at
    2:50 a.m.
    [Appellant] was subsequently interviewed by Detective
    Thomas DeFelice of the Allegheny County Police at
    approximately 4:30 a.m. Detective DeFelice testified that
    [Appellant] described the events that night, but stated that
    "while he was being attacked he heard three or four
    gunshots. He was able to kick a male off of him and he made
    it to his truck. He put his truck in reverse and drove away."
    He then said that he blacked out but denied firing a gun.
    When informed that a gunshot residue test could be
    performed, [Appellant] told the Detective that he was
    cleaning his gun earlier in the day. At trial, Defendant denied
    owning or possessing any handguns.
    The Commonwealth called Detective Matthews of the
    Allegheny County Police who testified that he conducted a
    search of [Appellant’s] house and vehicle, finding some
    ammunition for handguns, including a .44 caliber cartridge
    on the passenger's side of [Appellant’s] vehicle, as well as a
    magazine and a grip for a handgun. However, no handguns
    were found.
    The Commonwealth also called Detective Kinavey of the
    Allegheny County Police who identified a digital sketch and
    measurements made of the scene of the shooting which
    showed that House was 41 feet, 9 inches from [Appellant’s]
    vehicle when he was shot in the back of the head. He also
    testified that State Police gun license records showed that
    [Appellant] was not licensed to carry a firearm.
    ...
    [Appellant] testified that he owned the building where the
    party took place for 15 years. He rented the room for the
    party, which was to be for 30 to 40 children between the ages
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    of 11 to 14, and that he asked Edric McArthur, among others,
    to help him with the part. . . .
    The party started at 9:00 p.m. [Appellant] and McArthur
    patted down the teenagers for weapons as they entered the
    party. [Appellant] testified that as the party was concluding
    he got into a confrontation with Troy Cole about his gold chain
    and during the argument, Cole and three other teenagers
    jumped him. He said his attackers then ran outside and he
    shut the door. However, McArthur went outside to disperse
    the group and he then saw them beating McArthur so he went
    outside to assist McArthur and was attacked again until he
    and McArthur were able to get back inside. . . .
    He [] waited about [ten] to 15 minutes and then went outside
    to get his truck to get some of the younger children home
    and to get medical attention for himself and [McArthur]. As
    he went to his car, he saw a large group of teenagers running
    at him and screaming that they were going to kill him. . . .
    As he got to his truck they were grabbing, hitting and pulling
    him. He testified that he didn't have a gun, but as he
    struggled, "One of them that was standing right directly in
    front of me, he was grabbing [at] my sweater. The gun came
    out of his coat." At that time he instinctively grabbed for the
    gun at which time it went off. He described it as a black
    revolver. He then testified that he recalls shooting the gun
    at least one more time and when he did his attackers, "were
    just there, in front, everyone still. It was just a split second."
    He testified that he thought his life was in danger but he
    didn't try to shoot anyone. . . .
    [Appellant] testified he then went to a friend's house and then
    to the VA Hospital for what he described as a gash on his
    head, bruises and contusions to his face and defensive
    wounds on his hands, back, and both legs. In the attack
    [Appellant] also sustained or aggravated a hernia that
    required surgery and he subsequently suffered a stroke for
    which he was in rehabilitation. [Appellant] testified that
    because of the stroke, he had "aphasia", which affected his
    speech, thinking, and his ability to read and write.
    On cross-examination, [Appellant] denied seeing the police
    coming onto the scene as he drove away. [Appellant] stated
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    J-S21001-18
    that he did not go straight to the hospital because he blacked
    out. He denied the gun was his or that he owned any
    handguns. He testified that he believed that he dropped the
    gun used in the shooting in the parking lot. He explained the
    ammunition in his vehicle as ammunition that was transferred
    from one car to another and that may have been his wife's or
    someone else's.
    The defense also called Edric McArthur who also testified to
    the fights and the encounters with the teenagers inside and
    outside the building. However, McArthur did not see or hear
    the shooting in the parking lot.
    The defense also called Medina El, who had rented the room
    from [Appellant] for her child's 14th birthday party. She
    confirmed the fact that [Appellant] and McArthur were beaten
    up and that the teenagers outside were threatening and
    saying "they had guns." She called 911 because of her fear
    of the crowd outside. She also believed that [Appellant] was
    going to his vehicle to help take some of the younger children
    home.
    The defense also called Vlossie Long, [Appellant’s] friend,
    who testified that [Appellant] came to his house about 1:00
    to 1:30 a.m. and he appeared to be "a little bit beat up." He
    said [Appellant] kept saying that they "jumped me." He
    stated that [Appellant] stayed about 15 minutes and Long
    told him to go to the hospital.
    The defense also presented character testimony through
    Long and Chris Sullivan, who testified to [Appellant’s] long
    involvement in a boxing program in the area which benefited
    the young people of the community. . . .
    After being appropriately instructed, the jury found
    [Appellant] guilty of voluntary manslaughter, aggravated
    assault and carrying a firearm without a license. . . .
    Trial Court Opinion, 11/15/11, at 4-10 (internal citations omitted).
    On December 22, 2010, the Commonwealth provided Appellant with
    notice that it intended to seek mandatory minimum sentences of five to ten
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    years in prison, under 42 Pa.C.S.A. § 9712, for Appellant’s voluntary
    manslaughter and aggravated assault convictions. Commonwealth’s Notice
    Pursuant to 42 Pa.C.S.A. § 9712. The Commonwealth notified Appellant that
    it was seeking the mandatory minimum sentencing terms because Appellant’s
    convictions were “crimes of violence” and Appellant “visibly possessed a
    firearm . . . that placed the victim[s] in reasonable fear of death or serious
    bodily injury, during the commission of the offense[s].” See id.; see also 42
    Pa.C.S.A. § 9712(a) (held unconstitutional in Commonwealth v. Valentine,
    
    101 A.3d 801
     (Pa. Super. 2014)).
    On February 24, 2011, the trial court sentenced Appellant to serve an
    aggregate term of ten to 20 years in prison for his convictions; Appellant’s
    aggregate sentence included the two above-mentioned mandatory minimum
    sentencing terms of five to ten years in prison, under 42 Pa.C.S.A. § 9712(a).
    See N.T. Sentencing Hearing, 2/24/11, at 26.
    We affirmed Appellant’s judgment of sentence on November 29, 2012
    and the Pennsylvania Supreme Court denied his petition for allowance of
    appeal on May 30, 2013. Commonwealth v. Scott, 
    63 A.3d 840
     (Pa. Super.
    2012) (unpublished memorandum) at 1-21, appeal denied, 
    68 A.3d 908
     (Pa.
    2013).
    On August 22, 2014, Appellant filed the current, timely PCRA petition.
    See 42 Pa.C.S.A. § 9545(b); U.S.Sup.Ct.R. 13(1).      The counseled petition
    raised a number of claims, including that Appellant’s “mandatory minimum
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    sentences are illegal under Alleyne v. United States[, 
    570 U.S. 99
     (2013)].”
    Appellant’s PCRA Petition, 8/22/14, at 16.
    The Commonwealth responded to Appellant’s petition and conceded that
    Appellant’s sentence was illegal under Alleyne. Commonwealth’s Supplement
    to Answer to PCRA Petition, 4/8/16, at 1-2. However, the Commonwealth
    argued that the remainder of Appellant’s claims failed. See Commonwealth’s
    Answer to PCRA Petition, 10/29/15, at 1-39; Commonwealth’s Supplement to
    Answer to PCRA Petition, 4/8/16, at 1-7.
    On May 9, 2016, the PCRA court held a hearing on the matter. At the
    beginning of the hearing, the Commonwealth declared:
    Your Honor, . . . two of the issues raised in the [petition] . .
    . pertain to sentencing. With your permission, I believe the
    correct way to proceed is essentially bifurcate those issues.
    If [Appellant] was to in fact get PCRA relief and get a new
    trial, obviously any sentencing claims are . . . moot. If the
    PCRA is denied, then at that point the Commonwealth does
    agree that [Appellant] does need to be resentenced pursuant
    to Alleyne. He had a mandatory minimum. I guess at the
    end of this proceeding we could pick a date perhaps for that.
    N.T. PCRA Hearing, 5/9/16, at 4-5.
    The PCRA court and Appellant’s counsel agreed to this course of action.
    Id. at 5.
    At the conclusion of the hearing, the PCRA court reserved its decision
    on the matter; the court did not rule on Appellant’s illegal sentencing claim.
    Id. at 77-79.
    -8-
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    On July 19, 2016, the PCRA court dismissed Appellant’s petition in toto.
    Appellant filed a timely notice of appeal; Appellant numbers ten claims on
    appeal:
    [1.] Was [Appellant’s] claim for relief properly cognizable
    under the [PCRA]?
    [2.] Did the [PCRA] court err in finding that direct appeal
    counsel was not ineffective for failing to argue that
    [Appellant] was entitled to a new trial under the June 28,
    2011 amendments to 18 Pa.C.S.A. § 505(b)?
    [3.] Did the [PCRA] court err in denying the motion for
    discovery to obtain the medical records of [] victim William
    Bennett, and any associated ballistics reports?
    [4.] Did the [PCRA] court err in finding that counsel was not
    ineffective for failing to object to the hearsay opinion
    testimony given by non-expert Detective Kinavey on the
    scientific qualities of the surveillance video recording; and
    that counsel was not ineffective for failing to have the
    surveillance video professionally analyzed and the quality
    enhanced, and for not showing it to the jury at normal, full
    speed?
    [5.] Did the [PCRA] court err in finding that trial counsel was
    not ineffective for failing to utilize the 911 transcript and
    surveillance videos showing the movements of the crowd
    prior to the final assault on [Appellant] at his vehicle?
    [6.] Did the [PCRA] court err in finding that trial counsel was
    not ineffective for failing to utilize all available impeachment
    evidence in cross-examining Commonwealth witness Shenita
    Howard, and in refusing the court’s offer to specifically direct
    its jury instruction on prior inconsistent statements to [Ms.]
    Howard’s statements?
    [7.] Did the [PCRA] court err in finding that trial counsel was
    not ineffective for failing to document the extent of
    [Appellant’s] injuries at the time of the incident, and the very
    real effects consequent upon his subsequent stroke, as they
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    affected the manner of his testimony on the stand and his
    rehabilitative needs?
    [8.] Did the [PCRA] court err in finding that trial counsel was
    not ineffective for failing to object to the deficient jury
    instruction with respect to the defense of justification?
    [9.] Did the [PCRA] court err in finding that trial counsel was
    not ineffective for failing to object and move for a mistrial
    following improper argument by the prosecution?
    [10.] Did the [PCRA] court err in not considering the errors
    cumulatively, and not finding that prejudice resulted from
    multiple constitutional errors where [Appellant] established
    the ineffectiveness claims have merit and that counsel had
    no reasonable basis for his acts or omissions?
    Appellant’s Brief at 4-5 (some internal capitalization omitted).
    “In reviewing the denial of PCRA relief, we examine whether the PCRA
    court’s determination is supported by the record and free of legal error.”
    Commonwealth v. Fears, 
    86 A.3d 795
    , 803 (Pa. 2014) (internal quotations
    and citations omitted).
    Appellant raises ten claims on appeal. Nevertheless (and for reasons
    this Court simply cannot understand), Appellant failed to raise any claim that
    the PCRA court erred when it denied him relief on his illegal sentencing claim.
    We sua sponte raise the illegal sentencing issue, vacate the PCRA court’s order
    in part, vacate Appellant’s judgment of sentence, and remand for re-
    sentencing.1
    ____________________________________________
    1 We inform Appellant’s counsel that, if we had not raised the illegal sentencing
    issue sua sponte and had simply reviewed the specific issues raised on appeal,
    we would have affirmed the PCRA court’s order and the PCRA court would not
    - 10 -
    J-S21001-18
    As we have held:
    Alleyne challenges implicate the legality of a sentence. A
    challenge to the legality of a sentence may be entertained as
    long as the reviewing court has jurisdiction. An illegal
    sentence must be vacated. Issues relating to the legality of
    a sentence are questions of law. Our standard of review over
    such questions is de novo and our scope of review is plenary.
    Commonwealth v. Ali, 
    112 A.3d 1210
    , 1225 (Pa. Super. 2015) (internal
    citations, quotations, and corrections omitted).
    In Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), the United States
    Supreme Court held: “[o]ther than the fact of a prior conviction, any fact that
    increases the penalty for a crime beyond the prescribed statutory maximum
    must be submitted to a jury, and proved beyond a reasonable doubt.”
    Apprendi, 
    530 U.S. at 489
    . Further, in Alleyne, the United States Supreme
    Court expanded “Apprendi’s basic jury-determination rule to mandatory
    minimum sentences.”            Alleyne, 570 U.S. at 120 (Breyer, J., concurring).
    Specifically, the Alleyne court held that, where an “aggravating fact”
    increases a mandatory minimum sentence, “the fact is an element of a distinct
    and aggravated crime. [The fact] must, therefore, be submitted to the jury
    and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 116.
    As this Court has held, Alleyne rendered the mandatory minimum
    sentencing     statute    of    42   Pa.C.S.A.     §   9712   wholly   unconstitutional.
    Valentine, 
    101 A.3d at 812
    . Further, in Commonwealth v. Ruiz, 131 A.3d
    ____________________________________________
    have had jurisdiction to grant Appellant any form of relief on the illegal
    sentencing claim.
    - 11 -
    J-S21001-18
    54 (Pa. Super. 2015), this Court held that an Alleyne claim is a non-waivable
    challenge to the legality of a sentence that may be raised for the first time on
    direct appeal or in a timely-filed PCRA petition. Ruiz, 131 A.3d at 60; 42
    Pa.C.S.A. § 9542 (“persons serving illegal sentences may obtain collateral
    relief”). We also observed in Ruiz that Alleyne may be applied retroactively
    to cases pending on collateral review so long as the petitioner’s judgment of
    sentence was not final when Alleyne was decided. Ruiz, 131 A.3d at 59-60.
    With respect to the case at bar, the trial court sentenced Appellant on
    February 24, 2011, we affirmed Appellant’s judgment of sentence on
    November 29, 2012, and the Pennsylvania Supreme Court denied Appellant’s
    petition for allowance of appeal on May 30, 2013. Commonwealth v. Scott,
    
    63 A.3d 840
     (Pa. Super. 2012) (unpublished memorandum) at 1-21, appeal
    denied, 
    68 A.3d 908
     (Pa. 2013). Therefore, Appellant’s judgment of sentence
    became final at the end of the day on August 28, 2013. See 42 Pa.C.S.A.
    § 9545(b)(3) (“A judgment becomes final at the conclusion of direct review,
    including discretionary review in the Supreme Court of the United States . . .
    , or at the expiration of time for seeking the review”); see also U.S.Sup.Ct.R.
    13(1). Since Alleyne was decided on June 17, 2013, Appellant is entitled to
    the benefit of Alleyne and the instant case does not implicate an
    impermissible retroactive application of that case.
    Based on our review of the procedural background of this case and the
    relevant case law discussed above, we conclude that Appellant is entitled to
    resentencing without consideration of the mandatory minimum sentencing
    - 12 -
    J-S21001-18
    provision of 42 Pa.C.S.A. § 9712. Therefore, since the PCRA court erred in
    dismissing Appellant’s petition raising an Alleyne challenge, we vacate, in
    part, the order denying Appellant PCRA relief; vacate Appellant’s judgment of
    sentence; and, remand for resentencing.
    However, we conclude that the remainder of Appellant’s claims on
    appeal are meritless and that the opinion of the Honorable Randall B. Todd,
    entered on July 19, 2017, meticulously and accurately disposes of Appellant’s
    issues on appeal.      Therefore, we affirm the remainder of the PCRA court’s
    order on the basis of Judge Todd’s thorough opinion and adopt it as our own.
    In any future filing with this or any other court addressing this ruling, the filing
    party shall attach a copy of Judge Todd’s opinion.2
    Order vacated in part and affirmed in part.         Judgment of sentence
    vacated. Case remanded for resentencing. Jurisdiction relinquished.
    ____________________________________________
    2 We note that Appellant’s trial counsel did not request a self-defense jury
    instruction based upon the castle doctrine. See N.T. Trial, 12/8/10, at 356-
    370; N.T. Trial, 12/9/10, at 370-384 and 469-502. Therefore, even if the
    relevant amendments to 18 Pa.C.S.A. § 505(b)(2.1) and (2.5) (regarding the
    addition of “occupied vehicle” to the castle doctrine) are procedural,
    Appellant’s direct appellate counsel could not have been ineffective for failing
    to raise the issue, as the issue was waived at the trial level.            See
    Commonwealth v. Napold, 
    170 A.3d 1165
    , 1168 (Pa. Super. 2017) (“in
    order for a new rule of law to apply retroactively to a case pending on direct
    appeal, the issue had to be preserved at all stages of adjudication up to and
    including the direct appeal”) (internal citations and quotations omitted); see
    also 
    id.
     at 1168 n.3 (noting that “[a]n exception to the issue-preservation
    requirement exists where the challenge is one implicating the legality of the
    appellant’s sentence”) (internal citations and quotations omitted); Pa.R.A.P.
    302(a) (“[i]ssues not raised in the lower court are waived and cannot be raised
    for the first time on appeal”).
    - 13 -
    J-S21001-18
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/3/2018
    - 14 -
    Circulat d 06/19/2018 09:45 AM
    IN THE COURT OF COMMON PLEAS OF ALLEGHENY
    COUNTY, P
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    COMMONWEALTH OF PENNSYLVANIA,                                                        CRIMINAL DIVISION
    '416
    vs.                                                                                                                           1   Aive
    CC NO: 2008-18335
    DONALD WILLIAM SCOTT,
    APPEAL
    Petitioner.                           OPINION
    JUDGE RANDAL B. TODD
    COPIES SENT TO:
    Counsel of Record for the
    Commonwealth of Pennsylvan
    Stephen A. Zappala, Jr.
    District Attorney
    By
    Michael Streilly, Esquire.
    Assistant District Attorney
    401 Courthouse
    Pittsburgh, PA 15219
    Counsel for Petitioner:
    Suzanne M. Swan, Esquire
    310 Grant Street
    Suite 823
    1   .     0.-
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    IN THE COURT OF COMMON PLEAS OF
    ALLEGHENY COUNTY, PENNSY                                 VANIA
    COMMONWEALTH OF                                                  CRIMINAL DIVISION
    PENNSYLVANIA,
    vs.                                                    CC NO. 2008-18335
    DONALD WILLIAM            scow,
    Petitioner.
    OPINION
    TODD, J.
    July 19, 2017
    This is an appeal by Petitioner, Donald William Scott, from an
    order entered on Jul 19, 2016
    denying his PCRA petition. On August 17, 2016 Petitioner
    filed a Notice, of Appeal to the uperior
    Court. On August, 23,2016 a 1925(b) Order for Concise
    Statement of Matters Complained of on Appeal
    was entered. After granting a Motion for Extension of
    Time to file Concise        Statement, Peti loner filed
    his Concise Statement of Matters Complained of on
    Appeal on November 7, 2016 raising               e. following
    issues:
    "A.    The court erred in finding that counsel who represented
    Petitioner on direct Teal
    was not effective for failing to argue that Petitioner was
    entitled to a new tri
    under the June 28, 2011 amendments to 18 Pa C S 505(b);
    §
    B.     The court erred in denying' the motion for discovery to
    obtain the medical rec rds
    of alleged victim William Bennett, and any associated ballistics
    reports, inso as
    the Petition presented exceptional circumstances under
    Pa.R.Crim.P. 902(E),
    specifically, that the record supported the Petitioner's belief that the documen
    s
    would support the theory that Bennett's injuries were the result of
    gunfire
    originating from a person or persons other than the Petitioner.
    C.     The court erred in finding that counsel was not ineffective for
    failing to objet to,
    the hearsay opinion testimony given by non-expert
    Detective Kinavey on the
    scientific qualities of the surveillance video recording; and that
    counsel was ii it
    1
    ineffective for failing to have the surveillance video professionally analyz=. and
    the quality enhanced, and for not showing it to the jury at normal, full sp - - I
    D.   The court erred in finding that trial counsel was not ineffective for failing t show
    the jury the available surveillance video clips showing mass movements o the
    mob of teenagers rushing towards and away from the entranceway to the p
    premises; and that trial counsel was not ineffective for not presenting evi Ii nce
    corroborating the 911 calls made by Petitioner and Medina El prior to the
    shooting;
    E.   The court erred in finding that trial counsel was not ineffective for failing t
    utilizeS all available impeachment evidence in cross-examining Commonw alth
    witness Shenita Howard, and in refusing the court's offer to specifically d     t its
    jury instruction regarding prior inconsistent statements to Ms. Howard's
    statements;
    F.   The court erred in finding that trial counsel was not ineffective for failing ti
    submit a motion in limine objecting to the prosecution's use of crimen falsi
    convictions against defense witness Edric Marthur, which convictions wer stale,
    and their prejudicial effect substantially outweighed their probative value;
    G.   The court erred in finding that trial counsel was not ineffective for failing t
    11
    present facts showing that Petitioner's ability to perceive what was happem g at
    the time of the incident was adversely affected by physical conditions, and or
    failing to present the testimony of an expert witness who would have info ed the
    jury of the extent and impact of Petitioner's injuries at the time of the incid nt, as
    well as how his subsequent stroke affected his speech and behavior during rial,
    particularly during his testimony;
    H.   The court erred in finding that trial counsel was not ineffective for failing t
    challenge the deficient jury instruction with respect. tolhe.defense of jnstifi ation
    by excluding the word "complW.when:charging.the jury that the use of d dly
    force for self-protection is not justifiable where. "the actor knows that he c. avoid
    the necessity of using force to complete safety by retreating";
    1.   The court erred in finding that counsel was not ineffective for failing to obj t.to
    the prosecutOr's use of leading questions .during .direct examination of
    Commonwealth witnesses Howard and Bennett; and that counsel was not
    ineffective for failing to object to.and.move for a. mistrial based on the imp iper.
    argument by the prosecutor (1) based' on matters not of record, '(2) express.' ga
    personal opinion as to.. the guilt: of the Petitioner, and (3) commenting on th
    Petitioner's post-arrest..chOitelo remain silent;
    J.   Where Petitioner established that the issues raising trial counsel's ineffectiv ness
    have merit, and that counsel could not have had a reasonable basis for his o her
    respective actions or omissions, the court erred in not considering the errors
    2
    cumulatively, and finding that prejudice resulted from the multiple consti tional
    violations."
    BACKGROUND
    The factual background concerning this matter and the trial ,testimony"was' review d in the
    1925(b) opinion that was filed in this matter on November 15,2011,, and which set for th following:
    This matter arises out of ashooting which took place in the early morning hours
    November 23, 2008 in a parking lot adjacent to a building owned by Defendant in
    Wilkinsburg, Pa. The shooting resulted in the' death of Derrick House and the wo ding,
    of Will     Bennett. Defendant had rented out a, room in his building for a birthda party
    that started at approximately 9:00 p.m. on November 22. (T., p. 257) Although p1 ed
    for a group of 30 to 40 young teenagers, many more and much older teenagers arri ed
    and were admitted to the party until there was well in excess of 80 people at the p Y.
    (T, p. 155) Defendant and other adults assisting him were searching the teenagers or
    weapons as they entered and providing security throughout the night. (T.,. pp. 257 261)
    The evidence establishes that the party; for the most part, remained orderly. How er, as
    the party was ending a large group of the older teenagers were leaving and a fight. rupted
    between Defendant and one of the older teenagers,. Troy Cole, over a broken gold hain
    necklace being worn by Cole. (T., p. 162) This fight, which started inside the bui ing,
    eventually spilled out into the street behind the building and an adjacent parking 1     (T.,
    p. 164) Once outside, several of the other teenagers also began threatening or atta king
    Defendant, until he was able to retreat back inside the building. Shortly thereafter, Edric
    McArthur, one of the adults assisting Defendant, while trying to disperse the grou also
    came under attack when he ventured outside the building. Defendant went back o tside
    to aid McArthur and again was attacked until he and McArthur could get back insi e.
    (T., pp. 169, 184) After remaining inside for at least several minutes, Defendant d ided
    to go to his car that was parked in the ,Save :A Lot store parking lot, adjacent to his
    building. A video surveillance camera for the store captured the events that follow d,
    which were also described by three vvitnesses who were in the parking lot, .Shenita
    Howard, Bennett and Cole. Bennett, Who was later Wounded in the shooting, How
    and Cole all testified, they saw Defendant running to his car and that a large group, f the
    teenagers who' had been lingering nearby saw Defendant and ran at him as he reac          his
    vehicle. (T., pp. 85, 132, 174) The Commonwealth described it as a group of 15 t 20.
    (T., p. 25) The surveillance video dearly shows Defendant running to his vehicle: d the
    teenagers converging on Defendant as he reaches his vehicle and struggling with h as
    he, closes or attempts to close his door. One of those running towards: the vehicle as the
    victim, House. The witnesses further testified that someone then yelled that Defen ant
    had a gun. (T, pp. 87, 132, 174) At that point, some of the attackers, including H use,
    3
    can be seen on the video running from Defendant's vehicle. Within seconds, at 1 t 3
    shots were fired by Defendant, one of which struck House as he was running with his
    back to Defendant approximately 40 feet away. (T., pp. 217, 224) The bullet, wh ch was
    believed by the medical examiner to be a high velocity bullet such as a .44 caliber struck
    the back of the victim's head resulting in his death. (T., pp. 42-45) The medical
    examiner also testified that there was no evidence of gunshot residue, soot or stipl g
    which would indicate that House was at close range when shot. (T., p. 42) Bernie t, who
    was running down Penn Avenue, was shot in his leg, shattering his femur, and         . (T.,
    pp. 135-140)
    Howard .tettified,that after seeing House shot, she saw Defendant standing 'r
    pacing outside his vehicle with a silver handgun and then he reentered his vehicle: d
    pulled out from the parking. lot.. (T., pp. 89-9:1) As Defendant pulled out of the p king
    lot Sgt. Henry Singer of the Wilkinsbnrg Police Department, who received a dispa ch
    about.a disturbance, at 12:20 a.m., pulled. into the parking lot. As he had been
    approaching the scene, Sgt. Singer heard 4 or 5 gait shots: (T., p..50) He identifie the
    video from the surveillance camera which showed Defendant's vehicle pulling out as
    pulled into the lot: The video then showed Sgt. Singer approaching the               as e lay
    in the parking lot. .(T., p. 52) Sgt. Singer testified that he secured the area and late
    searched for evidence but found no ahell'easings,.bao., guns or other physical e iderice,
    p. 53).
    The Commonwealth called Officer Rory McLaughlin, a Department of Ve rans     p
    Affairs police officer, who testified that at approximately 3:00 a.m. on November 3 he
    was dispatched to the VA Hospital by emergency room personnel because Defend nt had
    come to the hospital saying he was involved in an incident in which shots were fir .d and
    he was injured. McLaughlin was dispatched to search Defendant for weapons. (T ; p.
    192) McLaughlin testified that he spoke with Defendant and Defendant described eing
    attacked twice, the second time at his car, and that he then left the scene and he m t have
    "passed out." (T., p. 194) Defendant did say that shots were fired, however, did n t tell
    McLaughlin that he had fired a gun that night. (T., p. 194) He also told McLaugh in that
    he had not called the police, but that he needed to call to report the incident. (T., p 195)
    McLaughlin found Defendant's cell phone on him, but no weapons. (T., p. 195)
    McLaughlin also testified that video surveillance at the hospital showed that Defe ant
    entered the hospital at 2:50 a.m. (T., p. 199)
    Defendant was subsequently interviewed by Detective Thomas DeFelice o the
    Allegheny County Police at approximately 4:30 a.m. Detective DeFelice testified sat
    Defendant described the events that night, but stated that "while he was being attac ed he
    heard three or four gunshots. He was able to kick a male off of him and he made it to his
    truck. He put his truck in reverse and drove away." (T., p. 234) He then said that he
    4
    blacked out but dmied firing.agun. (T., pp. 234-235) When informed that a guns ot
    residue: test could be performed, Defendant told the Detective that he was cleaning his:
    gun earlier in the day:. (T.,. p. 236) At trial, Defendant denied owning or. posses$ili any
    handguns. (T., pp. 293-294)
    The Commonwealth called Detective Matthews of the Allegheny County P lice
    who testified that he conducted a search of Defendant's house and vehicle, finding some
    ammunition for handguns, including a .44 caliber cartridge on the passenger's side of
    Defendant's vehicle, as well as a magazine and a grip for a handgun. However, no
    handguns were found. (T., pp. 204-208)
    The Commonwealth also called Detective Kinavey of the Allegheny Count
    Police who identified a digital sketch and measurements made of the scene of the
    shooting which showed that House was 41 feet, 9 inches from Defendant's vehicle when
    he was shot in the back of the head. (T., pp. '217,224) He also testified that State olice
    gun license records showed that Defendant was not licensed to carry a firearm. (T. p.
    218)
    At the conclusion of the Commonwealth's case, a colloquy was conducted ith
    Defendant regarding the fact that he was not required to testify and Defendant
    acknowledged that he wished to testify in his defense. (T., pp. 254-255) Neither a that
    time, nor at any time prior thereto, did Defendant or his counsel indicate that Defe ant
    was suffering from any type of disability which affected his ability to participate in or
    consult with counsel concerning his defense. Defendant acknowledged that he wis ed to
    testify in his defense. (T., pp. 254-255)
    Defendant testified that he owned the building where the party took place f. r 15
    years. (T., p. 257) He rented the room for the party, which was to be for 30 to 40
    children between the ages of 11 to 14, and that he asked Edric McArthur, among o ers,
    to help him with the party. (T., p. 258) The party started at 9:00 p.m. Defendant d
    McArthur patted down the teenagers for weapons as they entered the party. (T., p. 60)
    Defendant testified that as the party was concluding he got into a confrontation wi Troy
    Cole about his gold chain and during the argument, Cole and three other teenagers
    jumped him. (T., p. 265) He said his attackers then ran outside and he shut the do
    (T., p. 266) However, McArthur went outside to disperse the group and he then sa
    them beating McArthur so he went outside to assist McArthur and was attacked ag
    until he and McArthur were able to get back inside. (T., p. 267) He then waited ab ut 10
    to 15 minutes and then went outside to get his truck to get some of the younger chil n
    home and to get medical attention for himself and McArthur. (T., p. 268) As he we t to
    his car, he saw a large group of teenagers running at him and screaming that they w re
    going to kill him. As he got to his truck they were grabbing, hitting and pulling hi . (T.,
    5
    p. 269) He testified that he didn't have a gun, but as he struggled, "One of them    at was
    standing right directly in front of me, he was grabbing to (sic) my sweater. The       n came
    out of his coat." (T., p. 269) At that time he instinctively grabbed for the gun at hich
    time it went off. He described it as a black revolver. (T., p. 271) He then testifie that
    he recalls shooting the gun at least one more time and when he did his attackers,' ere
    just there, in front, everyone still. It was just a split second." (T., p. 275) He test fled
    that he thought his life was in danger but he didn't try to shoot anyone. (T., p. 27 )
    Defendant testified he then went to a friend's house and then to the VA Hospital ir what
    he described as a gash on his head, bruises and contusions to his face and defensi e
    wounds on his hands, back, and both legs. (T., p. 278) In the attack Defendant al o
    sustained or aggravated a hernia that required surgery and he subsequently suffer- a
    stroke for which he was in rehabilitation. Defendant testified that because of the oke,
    he had "aphasia", which affected his speech, thinking, and his ability to read and rite.
    (T., p. 279)
    On cross-examination, Defendant denied seeing the police coming onto th         scene
    as he drove away. (T., p. 283) Defendant stated that he did not go straight to the     ospital
    because he blacked out. (T., p. 291) He denied the gun was his or that he owned          y
    handguns. (T., p. 293) He testified that he believed that he dropped the gun used     n the
    shooting in the parking lot. (T., p. 297) He explained the ammunition in his vehi     le as
    ammunition that was transferred from one car to another and that may have been        s
    wife's or someone else's.
    The defense also called Edric McArthur who also testified to the fights an
    encounters with the teenagers inside and outside the building. (T., pp. 308-311)
    However, McArthur did not see or hear the shooting in the parking lot. (T., p. 31
    The defense also called Medina El, who had rented the room from Defend t for
    her child's 14th birthday party. (T., p. 326) She confirmed the fact that Defendant and
    McArthur were beaten up and that the teenagers outside were threatening and sayi g
    "they had guns." (T., p. 328) She called 911 because of her fear of the crowd ou 'ide.
    She also believed that Defendant was going to his vehicle to help take some of the
    younger children home. (T., p. 330)
    The defense also called Vlossie Long, Defendant's friend, who testified th
    Defendant came to his house about 1:00 to 1:30 a.m. and he appeared to be "a littl bit
    beat up." (T., p. 337) He said Defendant kept saying that they "jumped me." (T.,
    339) He stated that Defendant stayed about 15 minutes and Long told him to go t the
    hospital. (T., p. 343)
    The defense also presented character testimony through Long and Chris Su livan,
    who testified to Defendant's long involvement in a boxing program in the area whi
    6
    benefited the young people of the community. (T., p. 355) After being appropriat ly
    instructed, the jury found Defendant guilty of voluntary manslaughter, aggravated ssault
    and carrying a firearm without a license. This timely appeal followed.
    DISCUSSION
    Petitioner filed a PCRA Petition on August 22,2014 and an Amended PCRA Petit on aniline
    16, 2015. The Commonwealth filed an Answer to the PCRA Petition on October 29, 201 and a
    Supplement to Answer to PCRA Petition on April 8, 2016. Petitioner's PCRA Petition an Amended
    PCRA Petition included Exhibits A through R, which included an expert report regarding he
    enhancement and analysis of the surveillance video. It was stipulated prior to the hearing         at the expert
    report would be offered into evidence without the necessity of the expert testifying. At th PCRA
    hearing Petitioner presented the testimony of his physician, Dr. Susan Hoppe; trial counse Mr. William
    Brennan; and, appellate counsel, Wendy Williams. Petitioner did not testify. The Comm              wealth
    presented the testimony of the prosecutor, Ilan Zur, Petitioner now raises several claims .o error in
    failing to find that trial and appellate counsel provided Petitioner. ineffective assistance :of ounsel both
    at trial and on appeal.
    In order for Petitioner to be entitled to relief On the basis that trial counsel was inef ectiVe,.
    Petitioner must show by a preponderance -of the evidence ineffective assistance of counsel         hich, in the
    circumstances of the particularcase, so .undermined the truth -determining process that nor liable
    adjudication of gUilt or innocence could have taken place. Commonwecath.v..Brqdy,..741 *A 2d. 758, 763
    (Pa. 'Super. 1999) This standard requires Petitioner to show: (1) that the claim is. of argua le merit; (2)
    that counsel had no reasonable, objective basis for his actions;.and(3) that, but for the erro s or
    omissions of counsel, there is a reasonable probability that the outcome of the proceedings. ould have
    been different, that is, that the petitioner was prejudiced by the. alleged ineffectiveness of c
    7
    Commonwealth       v.   Kimball, 
    724 A.2d 326
    ,333 (1999). Counsel is presumed to be effeeti e, however,
    and the burden rests with the petitioner tO overcome that presumption. Commonwealth v. Pierce, 
    527 A.2d 973
    , 975 (1987), commonwealth         v.   Pirela, 
    580 A.2d 848
    , 850 (1990), appeal denie 
    594 A.2d 658
    :,(1'991).   lf a petitioner fails to meet any one of these tluee prongs, then an evidentiar hearing is not
    necessary. Commonwealth V. Wells, 
    578 A.2d 27
    , 32 (Pa. Super. 1990)
    Generally, counsel's assistance is deemed constitutionally effective if he 'chose ',a p        'cular
    course of conduct that had some reasonable basis designed to effectuate his client's intere             'Where
    matters of strategy and tactics are -concerned, a finding that.a.chosen. strategy lacked area.' onable basis .is
    not warranted unless it can be concluded that an alternative not chosen offered a potential or success
    substantially greater than the course, actually pursued. To demonstrate prejudice, the petiti ner must
    show that "there is a reasonable probability that, but for counsel's unprofessional errors,       e result of the
    proceedings would have been different." Commonwealth v. King, 
    618 Pa. 405
    ,57 A,3d 6                ,   613 (2012)
    (quotation, quotation marks, and citation omitted)." lik] reasonable probability is a prob         ility that is
    sufficient to undermine confidence in the outcome of the' proceeding.' " Commonwealth              Spotz, 
    84 A.3d 294
    , 311-12 (2014)
    Petitioner first claims that appellate counsel was ineffective for failing to argue on ppeal that
    Petitioner was entitled, to 'a new trial as a result of the June 28, 2011 amendments to the la     in
    Pennsylvania dealing with self defense. On June 28, 2011 Act 10 of 2011 (P.L. 48) was s gned into law
    amending 18 Pa. C.S.A. §505(b) dealing with self defense or the castle doctrine in Permsy vania. The
    amendments to Act 10 were to take effect in 60 days on August 29,2011. Defendant's tri             was held
    from December 7 to December 9; 2011 and his appeal to the Superior Court was filed on              arch 30,
    2011. Appellate counsel filed Petitioner's Amended Brief for Appellant in the Superior C urt on
    Feburary 24, 2012. The brief did not address the amendments to §505. Defendant conten                  that the
    8
    amendments to §505, specifically the addition of subsection (b)(2.l) and (2.5), should be pplied
    retroactively to his case as it was still pending on appeal on the effective dates of the ame dments and
    appellate counsel was ineffective for failing to raise the issue that the amendments were 'à. basis for a
    new trial. The Commonwealth argues that the amendments should not be applied retroacii vely as the act
    did not expressly state that it was retroactive.1 In addition, even if they were to be applie retroactively
    Petitioner failed to establish prejudice because regardless of the amendments; Petitioner's se of deadly
    force under the circumstances was not reasonable, even if the amendments established, th: the castle
    doctrine applied to an actor's "occupied vehicle." Finally, the Commonwealth argues that appellate
    counsel did challenge the sufficiency and weight of the evidence on appeal arguing that P titioner had a
    reasonable belief that he was, in danger of death or serious bodily injury and that the amen ments to
    §505 would not have altered the appellate arguments.
    The amendments to the: §505, specifically the addition of subsection ()(2.1) and ( .5),
    established a presumption that a person using deadly force had a reasonable belief that de ly force was
    immediately necessary to protect himself against death or serious bodily injury if the pers n against
    whom the force was used was, in the process of unlawfully and forcefully entering, or had unlawfully
    and forcefully entered and is present within, a dwelling, residence or occupied vehicle. In addition, the
    amendments added the presumption that a person who unlawfully and by force enters or a empts to
    enter an actor's dwelling, residence or occupied vehicle or removes or attempts to remove       other
    against that other's will from the actor's dwelling, residence or occupied vehicle is prestmi d to be doing
    so with the intent to commit an act resulting in death or serious bodily, injury. The amend ents at issue
    provide as follows:
    "No statute shall be construed to be retroactive unless clearly and manifestly so intended y the
    General Assembly." 1 Pa.C.S.A. § 1926
    9
    (a) Use of force justifiable for protection of the person. --The use of force upon
    toward another person is justifiable when the actor believes that such force is
    immediately necessary for the purpose of protecting himself against the use of unl wful
    force by such other person on the present occasion.
    (2.1) Except as otherwise provided in paragraph (2.2), an actor is presumed              have
    a reasonable belief that deadly force is immediately necessary to protect him            if.
    against death, serious bodily injury, kidnapping or sexual intercourse compelle          by
    force or threat if both of the following conditions exist:
    (i) The person against whom the force is used is in the process of unlawfully        d
    I
    forcefully entering, or has unlawfully and forcefully entered and is present with'   a
    ,
    dwelling, residence or occupied vehicle; or the person against whom the force is    sed is
    or is attempting to unlawfully and forcefully remove another against that other's w 11 from
    the dwelling, residence or occupied vehicle.
    (ii) The actor knows or has reason to believe that the unlawful and forceful entry act is        .
    occurring or has occurred.
    (2.5) Unless one of the exceptions under paragraph (2.2) applies, a person who
    unlawfully and by force enters or attempts to enter an actor's dwelling, reside ce or
    occupied vehicle or removes or attempts to remove another against that other' will
    from the actor's dwelling, residence or Occupied vehicle is presumed to be doing so
    with the intent to commit:
    (i) an act resulting in death or serious bodily injury; or
    (ii) kidnapping or sexual intercourse by force or threat.
    18 Pa.C.S.A. § 505 (Emphasis added)
    The Supreme Court addressed the retroactive application of §505(b)(2.1) in Commonweal h           v.   Childs,
    
    142 A.3d 823
     ( 2016). In Childs the Court considered the question of whether or not Chil s was entitled
    to a castle doctrine jury instruction pursuant to 18 Pa.C.S.A. § 505(b)(2.1), which became ffective after
    Childs was charged with the crimes at issue but prior to his trial on those charges. The a       licable facts
    and procedural history in Childs are that in November 2011, Childs was tried for murder          d possessing
    an instrument of crime after he stabbed the victim who was attacking him with a broomsti k in Childs'
    home. The victim and Childs were'arguing outside Childs' home. Childs then went insid his house and
    the victim entered Childs' home, who was attempting to hold the screen door to the house losed, and hit
    Childs several times with a broomstick. Childs grabbed a knife and stabbed the victim on e in the chest
    but he died from the wound and Childs was arrested and charged with homicide and posse sing
    10
    instruments of crime. At the first trial Childs was convicted   a possessing instruments of rime but the
    jury deadlocked on the homicide charge. In November 2012,. Childs was tried again on th homicide
    charge. The Supreme Court noted that
    At both trials, Childs claimed that he acted in self-defense and requested a castle: octrine
    jury instruction in conformance with section 505(b)(2.1), providing that the e is a
    presumption that he had a reasonable belief that deadly force was immediately ne essary
    to protect himself from, serious, bodily injury or death because he was attacked in ide his
    residence. MT., 11/10/2011, at 4-5; N.T., 11/16/2012, at 28-29. In respon e, the
    Commonwealth did not dispute that the facts of the case entitled Childs to castle
    doctrine defense; but objected to Childs request on the basis that, section 505(bX .1) did
    not become effective until more than a year after Childs stabbed Victim, and that giving
    the instruction would be an improper retroactive application of a substantive la . N.T.,
    11/10/2011, at 6-7, N.T., 11/16/2012, at 29. The trial court refused Childs' re est at
    both trials. On November 16, 2012, Childs was convicted of third-degree murder e was
    subsequently sentenced to a term of sixteen to thirty-two years of imprisonment or the
    murder conviction and a consecutive term of five years of probation on e PIC
    conviction. Commonwealth v. Childs, 
    142 A.3d 823
    ,,825-26 (Pa. 2016)
    On appeal, the Superior Court found that the trial court erroneously concluded that provid g the jury
    instruction would have been a retroactive application of the applicable law and reversed th judgment of
    sentence and remanded the case for a new trial, Commonwealth       v.   Childs, No. 272 EDA 2113, 
    2014 WL 10788813
    , (Pa. Super. Ct. Nov. 10,2014), affd 
    142 A.3d 823
     (Pa. 2016) In reviewin the Superior
    Court's opinion, it was noted that the sole question before the Superior Court was whether       e trial court
    correctly concluded that section 505(b)(2.1), should not be applied retroactively. The issue before the
    Court was whether the amendment, adding the presumption in 505(b)(2.1) was a procedura or
    substantive amendment. Noting the Superior Court's statement that "the law of retroactivity is, less than
    a model of clarity" the Court stated:
    The Superior Court began by recognizing that "a statute is impermissibly retroacti      e if it
    'attaches new legal consequences to events completed before its enactment. Retroa        tive
    application occurs only when the statute or rule relates back a.nd gives a previous
    transaction a legal effect different from that which it had under the law in effect wh   n it
    transpired.' " Commonwealth v. Childs, 272 EDA 2013, 
    2014 WL 10788813
    , *7-8
    (Pa.Super. Nov. 10, 2014) (quoting Commonwealth v. Robinson, 
    7 A.3d 868
    , 871-
    (Pa.Super.2010)). The Superior Court further recognized that concerns of impermis        ible:
    .11
    retroactive application arise only where the law at issue
    impairs a vested right or
    contractual obligation. 
    Id.
     at 8 (citing Commonwealth v. Johnson 
    520 Pa. 1654
     
    55 A.2d 897
     (1989)).
    The Supreme Court noted that although the castle doctrine
    existed at common law in Pe            ylvania since
    its founding, it was not codified in Pennsylvania
    until 1972, with the enadtment     of 18 Pa.        A. j:505.
    The Court further stated that §505 codified existing
    case law pertaining to self-defense an was intended:
    to set forth in a. single rule the law governing the use of
    defensive force and that the legisla ure
    emphasized that §505 made no substantial change to the
    existing law. Childs at 829 (Pa. 2 16)
    Regarding the amendments to §505 enacted in 2011, the
    Court stated:
    This statute remained =changed until the passage
    of Act.10 on June 28, 2011. The
    preamble to Act 10 explains that its purpose was to
    strengthen the right of self-defe e.
    See H.B. 40 139th Gen. Assemb., Reg. Sess.
    (Pa.2011). In so doing, however, Act 0 did,
    not substantively alter the law regarding the use of
    deadly force within a residence,
    Commonwealth v. Childs, 
    142 A.3d 823
    , 829 (Pa. 2016)
    In addressing the amendment adding subsection
    (2.1) the Court stated:
    The presumption created by section 505(b)(2.1)
    codifies the inference between -rtain
    basic facts (an unlawful and forceful entry and
    knowledge thereof, as descri d in -
    subsections 505(b)(2.1)(i) and (ii)), and an element of
    a castle doctrine defe se (a
    reasonable belief that deadly, force is immediately
    necessary). Both before and aft r the
    enactment of section 505(b)(2.1), a finder of fact
    could make this inference, and s ction
    505(b)(2.1) merely provides the factfinder with an
    evidentiary mechanism to as St in
    evaluating the merits of making this inference based upon
    the specific facts presen ed in
    the case. We note that the current standard jury
    instruction directs the jury to "[clo ider
    the realities of the situation faced by the
    defendant ... when you assess wheth r the
    Commonwealth has proved beyond a reasonable doubt
    either that [the defendant] d not
    believe [he] was actually in danger of death or serious
    bodily injury ... or that, whil [the
    defendant] did believe that, [that] belief was
    unreasonable' Pa.SS.11 (Crim) § 9. 01A
    (2012). Commonwealth v. Childs, 
    142 A.3d 823
    ,
    830-31 (Pa. 2016)
    It was noted that the Superior Court concluded that
    section 505(b)(2.1) did not alter a defen     t's rights
    concerning claims of self-defense premised on actions
    in the home. It reasoned that section 05(b)(2.1)
    only "addresses a method of enforcing th[e] right of
    self-defense" and is therefore procedur . Because
    there is no prohibition on the retroactive application
    of a procedural statute, the Superior Co reasoned,
    Childs was entitled to a jury instruction regarding
    the castle doctrine. On that basis, it vacate' Childs'
    12
    judgment of sentence and remanded for anew trial. The Supreme Court, affirming the Su - dor Court,
    found that:
    Section 505 (b)(2.1) does not, as the Commonwealth contends, broaden the right of the
    accused when, asserting a castle doctrine defense. Commonwealths Brief at 14. To the
    contrary, both before and after the enactment of section 505(b)(2.1), a defend t was
    justified in using deadly force' if he or she was not the initial aggressor and had a
    reasonable belief that such force was necessary to protect against death, serious bodily
    injury, kidnapping, or sexual intercourse compelled by force or threat, and a de endant
    had no duty to 'retreat when attacked in his or her dwelling. Likewise; both befi re and
    after the enactment of section 505(b)(2.1), the Commonwealth could overcome a c aim of
    self-defense under the castle doctrine by establishing that the defendant did not tually
    possess the requisite fear or that the defendant's belief was not reasonable. In s m, the
    section 505(b)(2.1) presumption does not alter either the elements of a castle I, ctrine
    defense or the historical right to use deadly force in one's horne. Instead, it prov des an
    evidentiary mechanism to aid in the factfinder's evaluation of the merits of castle
    doctrine defense. Conimonwealth v. Childs, 
    142 A.3d 823
    , 831-32 (Pa. 2016)
    The Court further stated:
    Having determined that section 505(b)(2.1) is a procedural statute, the Common ealth's
    remaining arguments are rendered moot. As a procedural statute, section 505( )(2.1)
    applied to litigation pending at the time of its enactment as well as litigation co enced
    following its enactment. Estman, 915 A.2d at 1194. Both of Childs' pros utions
    commenced after the enactment of section 505(b)(2.1), and so Childs was entitl d to a
    jury instruction in conformance with section 505(b)(2.1). Commonwealth v. Chile s, 
    142 A.3d 823
    , 83:5 (Pa. 2016)
    It was noted that the Childs was entitled to jury instructions pursuant to 505(b)(2.1) becau e that section
    became effective prior to Childs' trials. The Court stated:
    As section 505(b)(2.1) was effective at the time of Childs' trials, there is no specter   if
    improper retroactive application. The statutory evidentiary presumption was in effe       t at
    the: time of his trial. Retroactivity concerns would arise only if 'a defendant rais
    self-defense based on the castle doctrine at a trial prior to August 29, 2011 (the
    effective date of section 505(b)(2.1)), and then filed a post-trial motion after A         ust
    29, 2011, arguing that he was entitled to section 505(h)(2.1) jury instruction at         is
    trial. That is not the case here. Commonwealth v. Childs, 
    142 A.3d 823
    , 833 (Pa.          016)
    Based on the foregoing holding in Childs, Petitioner is not entitled to relief on his claim th counsel was
    ineffective for failing to raise and argue the amendments to §505(b) on appeal. The Court etermined
    that a jury charge regarding the presumption created in 505(b)(2.1) would only be retroacti e to a case in
    13
    which. a defendant raised a .claim of self defense.based on the castle doctrine in a. trial occ      ing"prior' the
    effective date Of the act, that is.August.29, 2011. As Petitioner's trial commenced on.Dec tuber 7,. 2010
    and the jury returuedits verdict on December 9; 2010.1jefendantwas not entitled to: inst            tions based
    On.the amendments. to   005(4     Furthermore; to', the extentihat Petitioner argues that he:: as entitled to
    an instruction based on the expansion of the casfiedoctrine to'SpecifiOallyincludean "0c :pied vehicle,"
    it would appear' that this provision constitutes a substantive amendment which, pursuant t' the holding
    in.Child4 would notbe: applied:retroactively.
    At the PCRA hearing appellate counsel acknowledged that she did not raise or ar ue the
    amendments to §505(b) on appeal stating that:
    My reading of the statute and my understanding of the application of the, statute 'w,. s that
    although it codified the common law as to the Castle Doctrine which may apply to people
    M Mr. Scott's situation, that the statute itself was not retroactive and could not be plied
    retroactive because it was not expressly written into the statute that it had retroacti e
    application. (T, p. 70)
    Based on the decision in Childs, Petitioner was not entitled to anew trial based on the retri active
    application of the amendments to §505(b) to Petitioner's trial held in December 20:10. Co            sel will not
    be deemed ineffective, for failing to raise a meritless claim. Commonwealth       v.   Tilley, 566 a. 312, 780
    Aid 649(2001');
    The Commonwealth also argues that even if the amendments were applicable, Peti loner has
    failed.todemonstrate prejudice because the "underlying issue-that Petitioner reasonably b ieved that he
    'needed to, tire, his gun in order'to avoid death.or serious bodily harm" is not 'affected by thi.
    amendments. The.: COMmonwealtli argues that, appellate counsel challenged the sufficiene and weight
    of the evidence on appeal Specificallyarguing:that.Petitioner had.a.reasonable belief that h was in
    danger of death .or serious bodily injury. at the time thathe fired :the. shots. The:Commonw         Ith further
    argues that the Superior Court found that there w.as sufficient basis for the jury. to reject Pe 'tiotieris
    14
    defense claim and the amendment to §505(b) do not alter or affect this conclusion. As n         t4 by the
    Supreme Court in Childs:
    The presumption created by section 5050)(2.1) codifies the inference between Certain
    basic facts (an unlawful and forceful entry and knowledge thereof, as desc 'bed in
    subsections 505(b)(2.1)(i) and (ii)), and an element of a. castle doctrine de rise (a.
    reasonable belief that deadly force is immediately necessary). Both before and ter the
    enactment of section 505(b)(2.1), a finder of fact could make this inferen e, and
    section 505(b)(2.1) merely provides the factfiader with an evidentiary mecha ism to
    assist in evaluating the merits of making this inference based upon the speci c facts
    presented in the case. Commonwealth v. Childs, 142 A 3d 823, 830-31 (7016).
    (Emphasis added)
    hi this case the Commonwealth conceded that at the time Petitioner was attacked          e had a
    reasonable belief that he was in fear   a his life.   (T., p. 25) Therefore, the issue of the pre mption in the
    amendments to §505 were not at issue. Consequently; Petitioner has failed to establish pr judice.
    Petitioner's second allegation of error is that the. Court erred in denying his motion for discovery
    to obtain the medical records of William Bennett which were no longer available because           e
    Commonwealth lost its file and could not produce the records and trial counsel did not ha e a copy of
    the records in his file. In his motion Petitioner alleged that counsel was ineffective for fa ing to pursue
    the possibility that Bennett was injured as a result of shots fired from another gun other th     that fired
    by Petitioner. Petitioner: argued that there was certain evidence that tended to establish th    Bennett's
    wounds were not consistent with being shot by a gun fired by Petitioner ancl that he shout have been
    permitted to obtain Bennett's records leave the belief that there may be information in the ecords that
    might buttress his theory of other shooters. Petitioner further asserts that his motion for di covery to
    obtain Bennett's medical records directly from the hospital should have been granted as th re were
    exceptional circumstances to permit the discovery pursuant to Pa.R.Crim.P. 902(E) which provides:
    p Except
    Requests for Discovery
    (1)         provided
    as          in paragraph (E)(2), no discovery shall be permitted at any tage
    of the proceedings, except upon leave of court after a showing of exceptional
    circumstances. Pa. R. Crim. P. 902(E)(2)
    15
    Petitioner"asserts that there is evidence that supports his theory ,'and warranted the r quested
    discovery. The first is that a supplemental police report of Patrolman Gilbert Stubbs of th Wilkinsburg
    Police Department indicates that he arrived pn scene at 00:23 and was asked by Sergeant 'I ger to
    attend to Bennett. Stubbs describes encountering Bennett laying on the sidewalk "directly cross the
    ,;
    street from the parking lot, area" and that Bennett indicated he had been shot and that he w        "found to
    have a small puncture wound just above his right knee with another to the inside of his, left wrist."
    (PCRA Petition, Exhibit "F") Petitioner contends that the fact that Stubbs describes Benne t's wound as
    a "small, puncture wound" contradicts, the: Commonwealth's theory that Petitioner used al.ge caliber
    handgun, such as, a .44 Magnum. However, while, the Commonwealth argued the gun was                 .44
    Magnum, the gun, which Petitioner testified he wrestled from one of his attackers and then dropped in
    the parking 'lot after he, shot it, was never recovered.
    During trial the Commonwealth called Detective. Matthews of the Allegheny Count Police who
    testified that he: conducted a search of Petitioner's house and vehicle and found some amm     r
    ition for
    handguns, including .44 Magnum cartridges in the Petitioner's house and vehicle, as well a' a magazine
    and a grips for handguns. In addition, the medical examiner testified that House's fatal wo nd was
    consistent with a. .44 Magnum bullet. (See Commonwealth Exhibit        1   which demonstrates small
    puncture wound to the back of House's head.) The fact that Patrolman Stubbs characterize' one of
    l3ennett's wounds as a small puncture wound is of little significance and does not support         e theory that
    someone else shot Bennett. The evidence was used to contradict Petitioner's assertion that e (lid not
    own any handguns. (T., pp. 204-208)
    Petitioner next contends that Bennett was on Penn Avenue and not in the direction 1 the two
    muzzle flashes from Petitioner's gun,and Bennett was not, as the, other victim was, specific ly identifierl
    16
    in the video. As noted above, Patrolman Stubbs described Bennett as being found on th sidewalk
    directly across the street from the parking lot and there is no evidence that Bennett was s far beyond the
    range of Petitioner's gun fire that he could not, possibly have been, struck when Petitioner fired the gun.
    In addition, the fact that Bennett may have not been in the line of fire of the two muzzle ashes from
    Petitioner's gun actually captured on the video does not preclude the fact that there may 'h ve been other
    shots fired by Petitioner that simply were not captured on the video. As will be discusse in more detail
    herein, Petitioner's video expert,. Lars Daniel, concludes after analyzing the video that:
    There .are two apparent. muzzle .flashes in the -video at the. fifth frame .at 00:1938 d the  *
    first frame of 0O:19;39 With the 'low frametate.of the recording, the only thing th t can
    be determined from the video. is that two shots were.fired by the..defendant. It* not be
    determined if additional sbots. were tired by the.defendant,...or if shots were fir d by
    another person'and those muzzle.flaSlieS werebbscured via the environment, oats' e the
    lense (sic) of the camera, or not captured by the camera due to the low frame rate. June
    10, 2015 Video Forensics Report, Amended PCRA Petition, ..Exhibit "Q," pi 2)
    (Emphasis:..added).
    There is 'no support in the video. for -the 'theory that some else was.. firing.a.gun. In fact, di analysis of
    the video includes the possibility that Petitioner fired all the shots that. were heard' by the   .       itnesses.
    Petitioner's contention. that there were one'or:more other persons 'firing, a gun at thetinie. at. Bennett.
    was shotis 'speculation.
    Atthe.PCRA hearing triat.cottnsel testified that he had reviewed Bennett's medica records and
    did not:see, anything. that.Was relevant to the iSsue of ballistics or whiCh wouldca.use, him             s   believe that
    there' were ballistic issues. Counsel testified:
    I know I had reviewed the medical records   of ,Mr. Bennett I recall that the
    Commonwealth offered to give me a copy of those, and the file at that point was s
    copious I chose not to. 1 reviewed them twice. As I read them, I don't recall any
    evidence as to what the ballistics were as far as entry and exit. Idont believe the was
    any opinion as to what form of handgun would have caused the damage that result d in a
    broken femur to the victim. 'I believe he was also shot in the arm. (T., pp. 25-26)
    As stated in Commonwecdth     v.   Reid, 
    99 A.3d 470
     (2014):
    17
    A. showing      of .good cause requires more .than a generic demand for pot ntially
    -
    exculpatory. evidence; Tather,.. discovery requests in the PCRA. setting m St be
    accompanied by an. explanation why the exculpatory information was unavailable prior
    counsel and must identify specific documents or items that were not disclosed pre ial or
    .
    dining trial. proceedings.. Commonwealth v. Carson, 590 Pa.:. 50.1,. 
    913 A.2d 2
     I, 261
    (2006) ..("a.. PCRA petitioner.. is not entitled to discovery where he has. not sho n the
    existence of requested documents,           as speculation that requested documen s will
    uncover exculpatory evidence. does not satisfy .the requirements of Rule 902( )(2)"),
    Commonwealth v: Reid, 99. A30 470, 498 (2014)
    This is nota cage in Whithit is. all6ged that the Commonwealth'failed' to produce relevant.         cords or*
    documents prior 'to trial or that trial counsel.didnot even.conduct an. examination     the re. Ords: Here'
    trial counsel.revieWed.the records and determined that the.tecords.:.dictriot.provideArty.evid ce that was
    relevant to the case. Petitioner's claim. that the medical records May develop evidence on, e issue. of
    causation of Betmett's, injuries is 'speculative and did not .warrantdiscovery pursuant toPa.
    902(E), therefore, and the motion for discovery was appropriately denied.
    Petitioner next.alleges that dial:counsel:was ineffective in three respects related to 'e
    surveillance video. Petltioner. first contends that counsel was ineffective in. failing to objec to.hearsay
    1
    and expert testimony by Petectivelcinavey explaining how the video' recorded,: or did.
    not:r Cord, certain
    events with particular'reference *to themuzZle flashes. Petitioner cites the following trial te
    timony of
    Detective.Kinavey.:
    Q.      Did you. hear Witnesses indicate there were between four and.five gunshots
    A.      Idid, .yes.
    Q.      Did you review the Video..and still 'images?'
    A.      I did.
    Q..    How mariyMuzzle flashes were.. you able.to,identify with certainty?
    A.     'Two.
    18
    Q.      And based on your understanding of how these surveillance cameras       work,
    is there any possible explanation as to why they didn't capture  perhaps all of e
    muzzle flashes, all of the gunshots?
    A.       Yes; It was explained to me.
    .Q.      And. what was that?
    A.      The explanation given to me was that the way the video captures is it's not like a
    video camera that you would have at home where it captures every event. It rapt es
    different images. Like, you might see a person take a      step. Then he might        two
    -
    steps ahead.
    Even on the motion sensor, it just doesn't have the pixels to capture each
    individual frame of each individual event. So you may lose like a millise ond. of
    each event due to the complexity of the surveillance video as well as the video b ing
    guess what they indicates was: it's a large file.        So they try. That's why they aVe, it:
    on motion sensor as well as collecting           the individual different frames. (T., p . 225-
    226)
    Petitioner contends that counsel was ineffective in failing to object to this testimo y because that
    the explanation as to how the video records or captures the movement on the video is ex            rt testirnony
    that Detective Kinavey was not qualified to give. In addition, as Detective Kinavey state', the
    information he was testifying to was "explained" to him and his testimony was clearly he               ay.
    Petitioner argues that counsel was ineffective in failing to object to Detective Kinavey's testimony and it
    was "clearly prejudicial given counsel's intention to argue to the jury the likely presence o shooters
    other than Petitioner." (Memorandum in Support ofAmended Petition for Post Convictio Collateral.
    Relief, p. 27)
    A review of all of the trial testimony concerning the video indicates that these tech ical aspects
    of the videos were never in dispute and trial counsel testified at the PCRA hearing that he ade the
    decision not, to object to Kinavey's testimony for that reason. At the PCRA hearing cowls          I   testified:
    Well, number one, it, was, there's no doubt about it. I chose not to object at that time.
    I had viewed the tape multiple times. I had discussed the tapes with County Police I had
    discussed the tapes with the prosecutor involved in that case, and what was being s id is
    of course what I was told during the frequent times that I saw those tapes. I knew hat
    19.
    was going to be said. It seemed to be useless to bring in at that point in time n
    expert to testify to what the detective was actually going to say. So, once aga , was it
    hearsay, yes, and I chose not to object to it. (T., p. 20) (Emphasis added)
    Regarding the question of whether or not Detective Kinavey's testimony was harmful or
    prejudicial, trial counsel testified:
    Q.      Did you consider Detective Kinavey's testimony on this point to be harmfu , that
    there were four or five gunshots but the video only showed two of them?
    A.      Frankly, no. My position was that indeed the defendant I knew was going o take
    the witness stand, and he had said at all times, and had said on the witness tand,
    there were two shots fired. Obviously we had three to four witnesses testif ing
    hearing somewhere in the range of four to five shots fired. Having seen th tape,
    we know indeed two gunshot flashes were seen which meant what happen to
    the other three which was not shown by that tape. In essence the argument would
    have been that those gunshots may have been by the victims or friends of e
    victims or whatever else, so I did not see that as per se harmful. (T, pp. 2 21)
    On cross examination of Detective Kinavey at trial, trial counsel established that based on is
    description of the mariner in which the video was recorded that, in fact, there could have b n two or
    three shots fired before the muzzle flashes attributed to Petitioner and that it could not be scertained
    "scientifically" the order of any shots that the various witnesses, including Petitioner, testi led they
    heard. Regarding the number of shots, trial counsel testified at the PCRA hearing that:
    "I recall the detective being on the witness stand and asking him very, very specificsally   if
    there was any scientific way one can detennine if my client fired any more than tw
    shots, and his answer was no." (T., p. 24)
    Counsel also pointed out that:
    "I outlined to the jury witnesses who claimed that these youth were yelling outside: we
    have guns, plural, we have guns. I emphasized the fact that five shots are heard an only
    two arguably can be attributed to my client, . . . " (T. p. 25)
    In fact, Kinavey's testimony could be used to buttress and confirm Petitioner's testimony t      he heard
    gun fire before the gun that he wrestled from one of his assailants at his vehicle discharged the first
    time.
    (T., p. 271)
    20
    The video expert, Lars Daniel, who analyzed the videos    and,   issued a report attach d.as Exhibit.
    "Q" to the Amended PCRA Petition, confirms Kinavey's, testimony. Kinavey's statement              atall gun.
    flashes might ñotbecapturedl on the video due to the manner in which the cameras captur d. the: video
    was also confirmed by Daniel, who explained it in terms of "low frame rate." Mr. Daniel explains in
    his report that upon examining the video he:
    .   Wound it to have, a frame rate of 6.5 frames per second, or FPF. For .a video't. be
    .   .
    considered live motion (meaning that the video was smooth, not choppy or flickeri g) the
    standard is 30 frames per second. (Amended PCRA Petition, Exhibit "Q", p. 1)
    Mr. Daniel also states in his report:
    I reviewed pages 221 through 227 of the court transcript, which contains a portion f the
    testimony of Detective Kinavey. On page 221, Detective Kinavey gives the expl ation
    of why there is a gap of approximately 30 seconds between the video files that we
    produced from the video surveillance systems by Save A Lot. As a point of clarifi ation,
    it is important to note that the "missing" 30 seconds is only between the two files
    containing the entirety of the exported video footage. This "missing" video in ni way
    impacts the footage of the actual incident and is not related to the explanation of
    frame rate provided by Detective Kinavey beginning on page 226. (Amended CRA
    Petition, Exhibit "Q", p. 6) (Emphasis added)
    In fact, Detective Kinavey's explanation that it is not like a "video camera that you have at home' where
    it captures every event" and that it "does not have the pixels to capture each individual ft      e:,of each.
    individual event" is simply'a less technical explanation of the.same conclusions reached          Petitioner's
    expert.
    Counsel testified that he made the decision not to object to Detective Kinavey's tes mony
    because there was "no doubt about it" and there is nothing in the record to support the pres nt claim that
    the failure to object was prejudicial because it affected counsel's ability to argue to the j     the likely
    presence of shooters other than Petitioner. Therefore, to the extent the testimony was eith        hearsay or
    expert testimony, counsel had a reasonable basis for his strategy, and he was not ineffe,ctiv in following
    that course. Commonwealth v. Williams,.
    899 A.2d 1060
    , 1063-64(2006),
    21
    Petitioner next contends that counsel was ineffective for failing to have the videos professionally
    enhanced and analyzed and expert testimony presented regarding that analysis which ,w9 Id have lead
    the jury to reach a different verdict. However, upon review of the report and after careful review of the
    both the video of the shooting presented at trial and the enhanced, video, there are no sign 'ficant or
    meaningful differences in the videos. The enhanced video is, in fact, somewhat brighter             areas where
    there is more illumination, that is in the foreground directly under the street lights and in       e background
    from signs or lights on or near Penn Avenue. 'In addition, while Petitioner's shirt is bright r as he is seen
    approaching and entering his vehicle, the figures seen rushing toward his vehicle are not s gnificantly
    clearer or brighter and the events for several seconds at or around the vehicle are not signi icantly
    enhanced. Based on the review of the enhanced video and its analysis, there is no reason le probability
    that the outcome of the trial would have been any different, if the proffered expert testimo 'y and video
    had been presented at trial.
    Mr. Daniel indicates in his: report that:
    I was asked to determine the amount of time between the change of direction of th
    crowd approaching the defendant's vehicle and the first muzzle flash. '1 was also ked to
    examine the video as it relates to the number of alleged muzzle flashes and if muz le
    flashes could have been 'missed' in the recording due to the frame rate of the video
    (Amended PCRA Petition, Exhibit "Q", p. 1)
    Addressing the issue of the time between the reversal of the crowd and 'the muzzle ash, Mr.
    i
    Daniel concludes that:
    At the sixth frame of 00:19:36 the victim turned and begins to change direction
    occurring before the crowd changing direction; the crowd then begins to change
    direction at the fifth frame of 00:19:37. At the fifth frame of 00:19:38 the firs
    muzzle flash can be seen. The second muzzle flash follows three frames after the first,
    or approximately .4 seconds after the first muzzle flash on the first frame of 00:19: 9.
    (Emphasis added)
    22
    Mr. Daniel reaches the conclusion that         time between the change of direction of the, cr wd and the
    "first muzile flash is one second. However, he also concludes that the victim changes dir            tion before
    'the crowd changes direction, that. is., the victim .changes direction at 00:19:3.6 and is shot. t 00:19:38.
    Petitioner claims, that, counsel was ineffective in 'failing to present expert testirndn regarding the
    video because it would have: establiShed conclusively the -short time that PetitiOnerhad :to ctually
    perceive that the *erowd'' was retreating, that is. one: second, and the time that the first mu zle flash
    occurred. Petitioner asserts that this analysis could have been used to counter the argume t of the
    prosecutor that the time was 21 or 3 seconds. In his opening statement the 'prosecutor sugg ted to the
    jury that Upon seeing the video. that "Whenfires.thatfitstshot, as you can see in the video at least two,
    Closer   tot= seconds have now passed. Three full Seconds...have passed since: these kids are now
    retreating! .and.that is. thecrux of this, that they are, in fact, retreating." (T.., :pp. 26-27) P' titioner
    contends that, trial counsel. imprOperty accepted this statement and did not attempt to refut it. This
    statement of the. tinie *between the crowd retreating and the first 'shot was notrepeated in        e
    Cotinitonwealth's testimony or by theprosecutorin closing. However,PetitiOnees'trial .c tinsel did
    refer:M.4.in his, closing by-stating 'that the Commonwealth's argurnent.that the mob was fl eing for "two
    or three". seconds was' not afl that the jury should consider in assessing. the. circumstances       at lead
    Petitioner to believe that he had a reasonable. belief that his life was in danger, Counsel, r then than
    conceding that only "two Or three" seconds was the tinteinvolyed that the:jury should con, ider, was in
    fact arguing that the.jury should Consider.* events of. the entire night. Conmel.stated,             quoting, the
    Court's charge to be given on. self defense,
    "Now my point is simply this: What this paragraph tells you, it's context. It wasp that
    second at the car. It was the evening of the assault after assault after assault it w s the
    beating on the door say "We got guns." It was the assault outside the door. It was at the
    car itself. " (T., p. 430) (Emphasis added)
    23
    In fact, this argument was consistent with Petitioner's testimony and the: argument that Pet tioner
    was not even aware that the crowd was fleeing. (T., p. 431) At the PCRA hearing trial c             set
    testified, as follows   :
    Q.      Well, did 'you think.therefOre it might be useful to have an expert to tell yo,
    exactly how.long.the..period.oftime was,. whether it was one 'Second or.thre
    !second?
    A.      I did not retain one, sir, and I did not think in terms of that.
    Q.      Okay. You argued to the jury that he was in fear of his life. The DA agre d he
    was in fear of his life. Isn't time to think or retreat a critical element there?
    A.      Certainly the lapse of time would be".a factor in this case, there's no doubt a out it.
    Q.                                -
    So you felt comfortable maybe I'm beating a dead horse here -- you felt
    comfortable with you just eyeballing it?
    A.      I thought that when one looks at the tape -- and of course, as you're aware, this
    case the jury had the tape as well with them in the jury room. When one Joked at
    the tape still by still, it would appear to me that -- it appeared to be a very, ery
    fast action. Now, what is defined by fast action. Again, according to the
    defendant in the case, he indicates at the time between shot one and shot twi was
    'a "split second. That was his term. (T., p. 27)
    Trial counsel further testified that he viewed the videos: repeatedly .and he Was Concerned        at if the
    video .were enhanced that it could.beharmful to. the Petitioner as it. was conceded, by the. Ci
    mmonwealth
    ..that Petitioner was being attacked and was infear for his. life. Counsel testified that the vid o
    did.not
    show the: gun in the Petitioner"S hand andif an enhancement had.been.done, it could haves pwrkhim
    :pciinting the gun. Counsel testified. thatthelestimOny of Petitioner was that although he fir
    d the gun,. he
    never aimedit. If the.enhancemerit showed .him aiming the gun at the crowd as they were               ing away,.
    it could be potentially harmful to the Petitioner. (T., p. 22)
    The proffered expert testimony establishes that there was one second from' when th; crowd
    began retreating and the first muzzle flash', however, it is unclear how the expert
    determine exactly
    24
    when the "crowd" began "retreating" because the movements of the individuals, especiall those in dote
    proximity to the vehicle, even in the enhanced video, are less than clear. The expert also concludes: that
    there were two seconds between when House, who did not reach the vehicle, began retrea ing and the,
    first muzzle flash. Petitioner contends that if the jury would have been told that there was only one
    second for Petitioner to perceive that the crowd was retreating, as opposed to two seconds that there is a
    reasonable probability that the result would have been different. However, this argument ails because it
    does not take into account, all of the evidence that supports the Commonwealth 's contenti n that,
    whether it was one second or two seconds, Petitioner, absent a credible explanation, had ti have
    perceived that the Crowd was running away. The timing of the retreating crowd and they tim as
    described by the expert was, not so significantly different from that which could be percei ed by the jury
    by viewing the' video and does not lead to the conclusion that the, expert testimony would ave affected
    the, outcome   of the trial. There was nothing in the expert report regarding the analysis oft e videos or
    the enhanced video itself which establishes that Petitioner was prejudiced by any alleged             effectiveness
    of counsel in failing to present expert testimony regarding the videos, and this claim was a ipropriately
    denied.
    Petitioner next claims that counsel was ineffective   in, failing   to show the jury the vi eo at full
    speed instead of half speed. Petitioner argues that by not playing it a full speed it allowed
    Commonwealth to' "artificially increase the apparent time lapse, exaggerating the time wt in which
    Petitioner was being asked to switch over from legitimate fear for his life when being rush d by the
    mob. . ." (PCRA Petition, p. 25) However, trial counsel testified as follows:
    Q.     Is there any reason why you didn't have it played for the jury at full speed?
    A.        Well, there are certain' factors that help the defense by playing it at half spe d.
    When you looked at it at full speed I'm sorry, at full speed it is somewhat of ,a         -
    blur. When you look at it at half speed, you basically see this gang of you come
    over a hillside, it would seems to swarm this gentlemen's car, to jump on di car.
    25
    They were on the roof, they were on the hood, they were on the windshield and
    of course part of the defense in this case, the major part was the fear he w in at
    the time, andI think showing it at halfspeed Was able. to Capture that as op tosed
    to full. speed it .would not.
    Q.     So you don't think showing it at full speed would have shown the full fear
    confusion of the incident?
    A.     I don't believe so, no. (T., p.
    Counsel, after having reviewed the video numerous time prior to trial, made a reasonable s ategic
    decision that it was better to show the video at half speed. A review of the video at both h If speed and
    full speed demonstrates that not only does playing the video at half speed prolong the time that it shows
    the crowd rushing the vehicle, it prolongs the time that the crowd is seen engaging with Pe Wolter at his
    vehicle. Petitioner testified to what he perceived as a prolonged struggle with some in the rowd
    punching and pulling him from the vehicle, which occurred from when he first reached the vehicle until
    they began retreating. From a review of the video, it appears that the crowd reaches his ye idle door at
    00:19:30 and begins retreating no later than 00:19:37, as described in the expert report. A half speed
    the period of the attack appears longer than when viewed at full speed. Therefore, while            re may be
    countervailing arguments as to whether the video should have been shown to the jury at fu speed or
    half speed, trial counsel's strategy to show it at half speed was reasonable and he was not ' effective in
    doing so.2
    Petitioner next asserts that the court erred in finding that trial counsel was not ineff ctive for
    failing to show the jury the available surveillance video clips showing mass movements of           e crowd of
    teenagers rushing towards and away from the entranceway to the party premises and for no presenting
    evidence corroborating the 911 calls made by Petitioner and Medina El, a defense witness,'nor to the
    2 While the prosecutor testified at the PCRA hearing that during deliberations the jury had e videos
    and a computer and could have viewed the video at full speed, there is no conclusive evide cc that the
    jury viewed at full speed. (T.. pp. 73-77)
    26
    shooting. As to the surveillanc,e videos,, Petitioner presented with his Amended PCRA Pe tion videos
    obtained in discovery showing the, events outside the entrance to the party room. Petition,, claims
    counsel was ineffective for failing to show the jury the surveillance video becaUseit'woulu have
    corroborated The fact that the Petitioner, as well as others in the party room, had a reasona le fear of the
    crowd. However; there was no significant dispute in this case that there was a large group     if teenagers
    outside the door of the party room and that there were altercations that, took place. Petitio er
    acknowledges in' his Petition that, "these clips clearly tended to corroborate the assaults up inthe door
    and upon Mr. McArthur testified to by the Defendant's witnesses, as well as by the Comm nwealth's
    witness, Troy Cole." Mr. Cole testified at length concerning the altercations that look pla e both inside
    the building and outside stating:
    A.      It seemed like the crowd was start' closing in on him.
    Q.      Okay,.
    A.      And then once he start smacking the chairs together, the crowd, they start, I e,
    backing up. And then somebody threw a crate. I didn't quite see who         threw it, but
    they threw a crate and hit him. Then the crowd attacked the         security guard.     at's
    when Mr. Scott came out.
    Q.     'Okay. So a crate? Are you talking like - -
    A.      Like a milk carton crate.
    Q.      Like a plastic crate? You didn't see who threw it, but he got hit?
    A.     Yes.
    Q.     And then the crowd jumped him?
    A.     The crowd started attacking him, took the chair off of him and started
    hitting him with them. Mr. Scott came out, and they did the same to h m.
    Q.     How many kids are we talking about?
    A.     A lot of kids. Like,,! can't even remember. I know a lot of kids, more 't an
    the people that's In here. (T., p. 169) (Emphasis added)
    27
    In addition, Edric McArthur, Meclina El and Petitioner also testified as to these events and
    Commonwealth never disputed that these events took place. Trial Counsel testified that h did not show
    the videos because they were cumulative, stating:
    The only thing I can say with hindsight is that it was cumulative. We had a numbe of
    witnesses there, Miss El, and all the way through. As far as this mass crowd of yo
    banging on the door saying words to the effect "we have guns", we have witnesses ho
    place that one poor man outside and being attacked by fifteen youth at one time. A ain, I
    was aware of the fact that on cross or whatever else there was no challenge to what ad
    happened at scene one. Now, arguably if I had played the tape of the youth going ti ward
    that door in scene one would that have enhanced that sense of fear? Possibly. (T., p.
    35-36)
    Clearly the evidence suggested by Petitioner was cumulative and counsel was not ineffecti e for failing
    to present cumulative evidence.. A defendant is not prejudiced by the failure of counsel to resent
    merely cumulative evidence. Commonwealth.      v.   Spatz, 
    896 A.2d 1191
    , 1229(2006)
    Petitioner also argues that counsel was ineffective because he: "left uncorroborated     d therefore
    opened to disbelief the testimony by Petitioner and Mr. McArthur that they had twice call       911 for
    assistance and by Medina El that she had called 911, as well." Medina El testified as folio s:
    Q.     Did you see the assault on Mr. Scott inside that room?
    A.     Yes. They started hitting hirn with chairs_ They were, like, all      surround    8
    him hitting him with chairs when they were trying to get them         out the door, get    em
    out the door. The broke tables. It was just very      chaotic. Once they got them o       side
    of the building where the party was, hey start kicking on the doors, kicking, scream
    they had guns.
    I actually called 911 from my phone, and! told the operator that they w           re
    acting crazy co the other side of the door because we couldn't get out. We
    couldn't get out of the place. They were still kicking on the door, screaming they        d
    guns, all types of stuff. "Open this fing door."
    They were just cussing, and a lot of children that were inside of the party w     re
    just scared, terrified. They were crying. We were trying to contain           the child   en,
    audI that's all I could think of was to call 911. (T., pp.    328-329) (Emphasis add
    28
    Trial counsel also testified that evidence. to corroborate that calls wereAtade: to 911 was n t.offered.
    because thefactliat the calls were made.was undisputed, and such evidence would haye b en
    cumulative. 3CounSel.testified:
    Q.      Did you present the testimony that there were prior calls to the Wilkinsbur
    Police?
    A.      The testimony came from the client, the defendant on the witness stand.
    called a Miss El. Miss El indicated that she had made two telephone calls
    Wilkinsburg -- she made, two 911 calls, and she was asked at the scene if s
    knew specifically if the defendant made calls. She said she did. not know.
    defendant took the witness stand and said I believe he made two calls.
    Q.      Did you attempt to get 911 recordings or evidence that he had actually ma        calls
    to the police?
    A.      I did not.
    Q.     And why not?
    A.     Because it was basically unrebutted in this case. The incident -- I used the erm
    crime scene one of what happened in that so-called party room, party room
    outside of that, and the witnesses put on, including one of the defense wiM sses, I
    believe, a Mr. Troy Coles, basically was =rebutted as to what specifically
    happened in that area, outside of that area. And as far as I remember, it wa not
    even challenged by the Commonwealth in this case, so I felt no need to
    corroborate the 'issue of the telephone calls.
    We had two witnesses. Miss El was excellent, and there was no challenge ii the
    fact that she ma.de those calls. (T., pp. 30-31)
    Petitioner contends that corroboration of the above referenced evidence was important to' stablish the
    fact that Petitioner was in fear of his life at the time of the shooting. However, this issue      s   never in
    dispute. In fact, the prosecutor conceded this point in his opening statement saying:
    They rushed him as he was entering his car. He made it into the car. All the kids e
    right on the car, and you can make that out on the video. At that point, like.! said to
    3Sergeant Singer also testified that he was responding :to ,,.a call about a disturbance spillin ,out "Onto
    Stoner Way, when he came upon the scene of the shooting. (T., p.. 49)
    29
    you,. I.'01 not   pinto argue to, you to the contrary.     He. was in certain   fear fo his life.
    at thatipoint, and that is.clear and nOt contradicted.. (T.,. p. 2.5)   (Emphasis 'add         )
    Counsel was, therefore, not ineffective in. failing to present evidence to corroborate the        disputed
    testimony regarding the events outside the patty room and...the 911 calls and this. Claim is   .       eritless.
    Petitioner'next contends that. trial counsel was ineffective. for failing to .aggressive y impeach the
    commonwealth's witness, Shenita Howard, and fOrrefitSinga jury charge which would h ye singled her
    out as a witness who made prior. inconsistentstatements,. Specifically,.P.etitionerargues at Ms.
    Howard was the witness relied upon by the Commonwealth to establish that Petitioner w s drunk and
    *unruly throughout *Tarty, the. aggressor in thefightingthat subsequently 'ensued and th           the acted
    inappropriately towards certain girls. Petitioner also contends that it .was..HoWard Who ch            ged her story
    from interview to interview. and who most raditallyzOntradieted the objective facts as rep             red by the.
    surveillance video.
    TheronamortWealth argues that trialcounsel did.effectively cross-examine How.              i   regarding
    inconsistencies betweeither trial testimony, statements tothe..police and her testimony at eprelfininary
    hearing. A"review Of Howard's direct and.cross examination demonstrates that trial Court                   effectively
    crOssedetamined Howard by having:het-admit that the.Smoked.marijnana with her uncle, the victim
    House, a couplehours before the party, (T.,.p. 95); thatshe :gave statements that were inc nsistent with.
    Troy Colesregardingthe attack on McArthur, (T., p. 102); that she attended .4 "good. nu her" of parties,
    in the past where there. are'pat downs for 'weapons, (T.,. p. 97); that Petitionermayhave mi interpreted
    some of thedancing that partygoers were engaged in as fights, (T,         99);.thatanotherfe ale .adult at
    the.party thought there was. alight. going on.atthe party, (T., p. 100);. and, that her testitno         atthe
    py.
    preliminary hearing regarding the number of shots.. she heard was inconsistent .with het tri           testimony.
    (T., p. 114) In addition, by questioning Howard c.onceming.herrec011ections and observa ons, which
    were directly contradicted by the video evidence, ttialtoUnsel eleatlytteated doubts iabou Howard's
    30
    credibility. In his closing argument, trial counsel not only argued that Howard was, biased       d gave
    inconsistent and incredible testimony but also, suggested that her testimony was of little si    ificance. (T.,
    pp. 398-399) Therefore, counsel was not ineffective in, failing cross examine Howard.
    Petitioner next contends that trial counsel was, ineffective for consenting to the Co     onwealth's
    request that the instruction regarding inconsistent statements not "single out" Howard. (T.,      359) At
    the PCRA hearing counsel testified:
    1 know  that the Court had offered to direct it very specifically to Miss Howard, and
    perhaps I should have joined in on that, it made sense, but at the same time I am no sure
    that there was any damage done as a tesult (T., p. 61)
    The jury received an instruction regarding prior inconsistent statements of a witness and th t it could
    consider those inconsistent statements in assessing the credibility and the weight of the test mony. (T., p.
    481) In light of the instructions to the jury and the inconsistencies in Howard's testimony hat were
    developed on cross examination, Petitioner has failed to prove that the failure to single out     oward
    during the jury charge was prejudicial.
    Petitioner next contends that counsel was ineffective in failing to submit a motion .i litnine
    objecting to the prosecution's use of criinen falsi, convictions against a defense witness, Edr c McArthur,
    when those convictions were stale pursuant to Pa.R.E. 609(b) which provides:
    (a) In General. For the purpose of attacking the credibility of any witness, evidence     at
    the witness has been convicted of a crime, whether by verdict or by plea of guilty o     nolo
    contendere, must be admitted if it involved dishonesty or false statement.
    (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if mor       than
    10 years have passed since the witness's conviction or release from confmement for       t,
    whichever is later. Evidence of the conviction is admissible only if:
    (1) its probative value substantially outweighs its prejudicial effect; and
    (2) the proponent gives an adverse party reasonable writtennotice of the intent to us
    so that the party has a fair opportunity to contest its use. Pa.R.E. 609
    A review of McArthur's testimony shows that it dealt primarily with the events and altercations
    that: took: place in the party room and outside in the alley as the teenagers were leaving. (T., i p. 304-314)
    31.
    As noted 'above, there Wasno, substantial ordispute concerning, those 'facts, Which were a so testified to
    by other defense witnesses and a Commonwealth witness. McArthur also testified that'a he was
    locking up the room :after the event he did nothear any shots         n,   the parking. lot, ,did. not w tness the
    eVents, iifthe parking. lot and   did not. see Petitioner that night after he left to get in his car. (T., pp. 321-
    322) .At the. conclusion of his. testimony, the prosecutor cross-examined McArthur with r spect to his
    conviCtion.and..sentenceof.5 to 10 years.for.robbery and a guilty plea to receiving stolen               operty for
    which he received 5 years, probation. ,(T., p. 323) Trial 'counsel testified that' it was amis ake not to
    challenge the use of the 'convictions in McArthur's cross examination. (T., pp. 4142) In ddition, the
    Commonwealth concedes the convictions:were stale pursuant to 609(b), however, argues                      at when
    Considered in the .contextof the. totality of the evidence presented at trial, the error does n t undermine
    confidence in the verdict.
    Petitioner cOntendS...that he was, relying upon McArthties testimony to. vouch for P titioner's
    sobriety and reasonable behavior during.the early events, of the evening.a.nd to corroborat Petitioner's
    aridly's. El's description Ofthe out of control mob which was ;gathered
    outside the.partypremises once the teenagers. had been asked. to.exit. However, as rioted boVe, 'there
    were both Commonwealth and defense witnesses that..testified. concerning. those events w ich..were the
    subject of McArthur's testimony 'and, it :is clear that McArthur'Stestintony was cumulative Although
    counsel was ineffective in failing to object to'the use ofthe stale convictions to imPeach               c.Arthur,
    Petitioner hasfailed to prove any prejudice...and this claim is ineritleSs..
    Petitioner next contends that it was error to firid that trial* counsel was not ineffecti e for failing
    to present facts showing that. Petitioner's ability to perceive. what was happening at the ti             of the
    incidentwere:,.adversely affected by hisphysical condition.          Petitioner attached as ..Exhibi "K" to his
    PCRA Petitioner's, medical records from the Veterans Administration hospital fOr his treat ent on
    32
    November 23, 2008. Petitioner attaches a radiology report of November 23,2008 from a T :scan of his.
    head which. Petitioner indicates documents that he was suffering from "frontoparietal soft issue swelling
    on the left side corresponding to area of injury without fracture or contusion." In, addition    ere is a
    progress note that notes a small abrasion under the left eye and a 1/2 cm. curvilinear lacera 0.0 On the
    mid -forehead which was described as being "superficial." The. records indicate:that he ha a thief
    complaint "getting assaulted tonight, laceration to theleft forehead, under left:eye, report d loss of
    consciousness, hematoma left side of the forehead."       While these records do document s      e of the
    injuries that Petitioner suffered, these injuries do not appear to be significant and there are ortions of
    the record that are arguably harmful to Petitioner as it pertains to his injuries and physical ondition.
    For example the records note that he is "alert and oriented," that his nose is "not swollen,"    at the:
    laceration is "dermal only," and the laceration is "superficial." The records do not docume t 'any
    significant treatment and there is no indication that he required any stitches or bandages to    e head
    laceration. In addition, there are portions of the records that contradict Petitioner's trial to timony
    regarding the incident itself, such as his statement that during the attack at his vehicle, "He states he was:
    hit in the head and fell to the ground, losing consciousness briefly. He then woke up and       ove himself
    here to the ECC to be seen." (Exhibit      :-.Progress.Notes) This statement is contradict      by the' video
    that does not show Petitioner'being knocked' to the ground or suffering any period of unco ciousness
    nor does it account for the period of time that he went to his friend's house after the shoot
    There is little in the records from the Veterans Administration Hospital that support the
    contention that Petitioner would not have been able to perceive what was occurring during        e incident.
    Importantly, although Petitioner testified that he had sustained some injuries during the al    cation in the
    party room with Cole, Petitioner never testified that he was bleeding or suffered any other jury that
    affected his ability to perceive what was occurring when he left the building and went to hi vehicle.
    33
    Petitioner testified that he suffered "a: little blank out" after the gun he allegedly grabbed om one of the
    attackers fired, but, never attributed this "blank out" to any specific injury. (T., p. 283)
    Petitioner also argues that counsel failed to admit the complete set of photographs of the
    able
    Petitioner's. "various scrapes and cuts" which would have supported Petitioner's claims of ot being
    to see clearly as events unfolded because blood having gotten into his eye. (PCRA Petiti n, Exhibit
    "L") However, in reviewing Exhibit " L," one of the photographs of Petitioner's face an head showing
    the laceration on the left forehead and left cheek had already been adrnitted into evidence as
    Commonwealth Exhibit No. 193. The Commonwealth also offered in to evidence Exhibi s 194, 195,
    196 which are photographs of Petitioner's hands and knees. While Exhibit "L" does con 'n three
    additional close up photographs of Petitioner's face showing closer views of the laceratio             on
    Petitioner's forehead and cheek, they do not demonstrate injuries that would affect: his ab ity to perceive
    what was happening at the time     a the incident. A review of the other photographs attac             a.s   Exhibit
    "L" show what appear to be relatively minor scrapes on the back of his hands and 'muck'            ,   his left knee
    and right shin, the left side of his back and his right arm. These photos would have no b              ng on his
    ability to perceive the events surrounding the shooting. Petitioner fails to demonstrate 'h w the failure to
    offer the photographs prejudiced him and this claim is without merit.
    Petitioner also claims that trial counsel was ineffective in failing to present expe medical
    testimony to explain to the jury the effects of the stroke that Petitioner suffered while on" ergoing
    surgery in February of 2010 for a hernia and the impact of his symptoms on his ability t s testify. At the
    PCRA hearing Petitioner presented the testhriony of Dr. Susan Hoppe., Dr. Hoppe, who s board
    certified in internal medicine, testified that she was Petitioner's, treating physician from 009 to 2010
    and that she had reviewed his medical records for the period from February 2010 to Dec mber 2011.
    (T., p. 7) Dr. Hoppe testified that. Petitioner had suffered a left parietal infarct diat left h in with
    34
    difficulties both in expressing himself atid understanding speech. (T., p.9) She testified    at the stroke
    also caused some mild cognitive difficulties and memory impairment. (T., p. 9) Dr. Ho         e testified that
    Petitioner had expressive aphasia which included phonemic paraphasia which meant that e might
    confuse certain words, for example "he might want to say the word cat and instead he wo id say the
    word can." (T., p. 9) In addition, she, testified that Petitioner might suffer some difficult with
    comprehension , such that he would not answer a question in a way that showed that he          derstood the
    question. She also testified that the aphasia could be greater under stress such as when h would be
    testifying in court. (T., p.10) She testified that the effect of this could be that he would g t upset and in
    attempting to express himself might become tearful. She could not testify if the aphasia ould make his
    mood labile. (T., p. 11) Dr. Hoppe also testified that she had witnessed some tearfulness and frustration
    which was not typical of Petitioner before his stroke. She testified that it was often neces ary to repeat
    things several times to a patient with aphasia. (T., p.12) She further testified that stroke   uld affect
    short-term memory. On cross examination Dr. Hoppe acknowledged that she was not pre ent during
    Petitioner's trial and ,that it would be hard for her to actually know how Petitioner respon ed to
    questions based on reading the transcript. (T., P. 14) She also acknowledged that in her eport of
    February 2015 she stated that his comprehension deficits would be generally mild. She al o stated that
    his ability to remember the actual events of the incident which occurred in 2008 would no have been
    affected by the' stroke. (T., p. 15)
    Petitioner alleges that counsel was ineffective in failing to call Dr. Hoppe or prese t other expert
    testimony to establish the effects of Petitioner's aphasia because a physician would have b tter explained
    to the jury any difficulties that Petitioner might exhibit in responding to questions or testif ing, which
    might be constmed by the jury as Petitioner being evasive or unsure of his testimony. Pe tioner also
    .   35
    specifically refers to Petitioner's cross-examination in which the prosecutor questioned P titioner about
    his crying during his testimony earlier in the day, stating:
    Q.       Are you sure that wasn't just a ploy to get sympathy from the jury and that you
    weren't really crying? Because there was no tears; right?
    A.       I was trying back, pulling everything back.   I was trying testimony withou crying.
    Q.       So you're actually saying :those' were real, honest emotions about the cryin ?
    A.       Yes.
    Q.       But your eyes didn't get red? Your, nose wasn't running?
    A.      Yes, my nose running, yes. (T., pp. 280-281)
    In addition, duting his closing argument, the prosecutor argued:
    "And the way he testified, I really hope that you saw it. I hope you saw through at
    facade. I hope you saw through the fake crying, the exaggerated stuttering when I was
    questioning him as opposed to when Mr. Brennan was, his claim of lack of merno y, how
    he doesn't know what's going on. It's an act for you. It's an act for you to sympa ize
    with him, but I hope you saw through it. (T., pp. 453-453)
    Petitionerargues that medical testimony confirming his condition would have precludeds ch questions
    or argument or,.at theVery least, lessened their impact.
    At the PCRA hearing' trial counsel testified -that he was awarathat Petitioner had:       fered
    .stroke: and was' undergoing rehabiritation:And,...."Wanted 'to make sure that be could respond appropriately
    N.vben.ealled tothe witness stand." (T., p. 43) ;He testified that he noted that the aphasia.     .ifeSted
    itself in his discussions" with Petitioner, stating:*
    "Typically if.! was posing 'questions to him on ;direct, sometimes it would simply t
    a time frame:to:answer. I would ask a.question,; and.typically he Would raise is
    finger and;he would give an answer, or then he woUld just say to me: can you wail a
    second? Andi would. wait. for a second, and he. would give inewhatthe appropria
    answer was, at least it Was an answer consistent with the prior interviews with him ".
    p. 43)
    36
    Counsel testified that he, met frequently with Petitioner, who was out on bail, to prepare, fir trial and -that
    he did not recall any tendency by Petitioner to omit words, have difficulty with complex entences, or
    difficulty with comprehension or having to explain things "more than once." He did des 'be Petitioner
    exhibiting what he called a "pregnant pause" between being asked a question and respon ing.               CT., p.
    44) Counsel also indicated that while he knew about Petitiones aphasia, he did not, cons It with an
    expert but "read up on the subject area." (T., p. 45) Counsel also testified that he did con ider that the,
    jury might interpret the symptoms as .a lack of forthrightness and, therefore, elicited testi ony from
    ir
    Petitioner that he suffered a stroke while undergoing surgery for a hernia that was aggrav ted on the
    night of the incident. (T., p. 78) Petitioner testified as follows at trial:
    Q.      So did you suffer that stroke during surgery at the VA Hospital?
    A.      Correct.
    Q.     Are you in rehab for that now?
    A.      Yes.
    Q.      And how long have you been in rehab as a result 'of the stroke that you su           red
    while in surgery for the hernia?
    A.      Every week, and I had to stay for 30 days at the VA in Aspinwall.
    Q.      And, sir, what effect has that stroke had on you?
    A.      I have aphasia. It's called aphasia.
    Q.      What's that mean, sir?
    A.      My coordination of my speech and, my, thinking, and 'I can't-- could read nd
    write' a lot.
    Q.      And that affects you as of right now, sir? Did you mean to shoot or kill an one at
    all, Mr. Scott?
    A.      No. No. (T., pp. 278-279)
    37
    Petitioner contends that counsel was ineffective because the failure to obtain expe testimony
    left Petitioner wide open to the remarks made by the prosecutor questioning the reality of ;' etitioner's
    symptoms. In addition, Petitioner argues that his own testimony and the remarks of trial ounsel in his
    closing argument did not carry the weight that the testimony of a medical professional wo Id have
    carried. Clearly, presenting medical testimony would have more clearly explained to the ury the
    symptoms of aphasia. Such testimony may have given the prosecutor pause in questionin Petitioner's
    symptoms and making the argument that his symptoms were a facade. However, it app                    that, the
    emphasis in, the prosecutor's argument was that Petitioner's difficulties in testifying appe        d to, manifest
    themselves during his cross-examination as compared to his direct examination and were          H
    attempt to   -
    garner sympathy, which should not be considered in rendering a verdict. (T., p. 453)
    Finally, neither Dr. Hoppe nor Petitioner testified at the PCRA hearing to any part- ular
    instances during the trial, where he failed to understand a question or demonstrated a lack         f ability to
    express himself and answer questions correctly. Dr. Hoppe, testified that it would be diffi It for her to
    point out, simply from reading the transcript, any particular difficulties that Petitioner had uring trial.
    However Petitioner did not testify at the PCRA hearing to any significant difficulties that e
    experienced. There was no testimony from Petitioner, after having had an opportunity to, view the trial,
    transcript, to instances in which he believed that he experienced any inability to understan the questions
    or respond fully and appropriately as a result of his aphasia. It 'was"previously noted in th 1925(b)
    Opinion previously filed in this case that this Court did' not' witness any significant difficul y that
    Petitioner had in testifying due to his aphasia. While expert medical testimony may have            ore clearly
    established, the effects of Petitioner's stroke and aphasia there is not sufficient evidence, to stablish that
    Petitioner was prejudiced by any failure, to call an expert witness to address this issue.
    38
    Petitioner next contends that the trial court erred, in finding that trial counsel was ot ineffective
    in,   failing to challenge the, deficient jury instruction with respect to the defense of justific ion which
    excluded die word "complete" when instructing the jury that the Petitioner knew that he c uld avoid the
    "necessity of using deadly force with complete.,safety," The relevant portion of the charg from the
    transcript states:
    Consider the realities of the situation faced by the defendant here, when you asses
    whether the Commonwealth has proven beyond a reasonable doubt either that he id not
    believe he was in actual danger of death or serious bodily injury to the extent that e
    needed to use such force in self-defense or that while he did believe, it was unreas enable
    for him to do so, or that the defendant knew that he could have avoided the necess ty of
    using deadly force with safety by retreating but he failed to do so. (T., p. 484)
    The instruction does not contain the word' "complete" and in its post hearing, subm ssion the
    Commonwealth indicates that it confirmed with the' court reporter that there is no indicati n that the
    transcript is inaccurate. Trial counsel testified at the PCRA hearing that he did not object er request
    additional instructions because he did not hear that the word "complete" was not used in: e charge. (T.,
    p. 49)     Petitioner argues that the omission of the word "complete" from the charge was o great
    important because Petitioner had been subject to not just one but to repeated attacks by th same mob of
    teenagers and that, "under: those circumstances, the concept, of safety was clearly a relativ term and the
    difference between potential safety and 'complete' safety was, very large." (Memorandum in Support of
    Amended PCRA Petition, p. 53) While there is no dispute that the word "complete" is in uded in the
    standard instruction 9.501 'on "Justification: Use of Force/Deadly Force in Self-Defense w ich was
    being read to the jury and was inadvertently omitted, it is also clear that there was no imp' per
    qualifying words use to describe the concept of safety such as "potential" or "possible."        he
    instructions as whole conveyed to the jury the concept that the Commonwealth had the b den of
    proving an one of three elements regarding self defense, which included that the defendan knew he
    39
    could avoid the necessity of using deadly force with safety by =treating. As stated in Co rnonwealth          v.
    Spotz, 
    896 A.2d 1191
     (2006)
    "In reviewing a challenged jury instruction, we must review the charge as a whol and
    not simply isolated portions, to ascertain whether it fairly conveys the required le al
    principles at issue." Gilbert Jones, 683 A.2d at 1196. "[Ilt is an unquestionable m im 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, adequ tely,
    and, accurately presented to the jury for its consideration." Commonwealth v. Port r, 
    556 Pa. 301
    , 728 Aid 890, 899 (1999).
    Spotz insists that his trial counsel was ineffective for failing to object to the trial urt's
    omission of the word "case" from its jury instruction on aggravating and mitigati
    circumstances. However, as the PCRA court concluded, we find this "hyper-techn cal
    semantical claim" to be "patently frivolous." (Opinion of the PCRA Court at 57).
    In Porter, supra, this Court rejected a similar hyper-technical claim. There, the ap slant
    argued that it was reversible error for the trial court to instruct the jury that a reaso able
    doubt was one that "would cause a reasonably careful and sensible person to restr
    before acting." Porter, 728 A.2d at 899 (emphasis added). Instead, the appellant isted
    that the jury should have been given the Pennsylvania Standard Jury Instructions:
    Criminal Section, § 7.01(3) (1979), which states that a reasonable doubt is one tha
    "would cause a reasonably careful and sensible person to hesitatebefore acting." d.
    (emphasis added). In dismissing this semantical claim, we noted that, "although w have
    historically considered the language contained in these standard instructions to be aid
    in, our review, we have not placed our imprimatur upon them." Id. Moreover, we a so
    emphasized that the trial court has broad discretion in phrasing its instructions as 1 ing as
    the instruction clearly, adequately, and accurately reflects the law. Id. Because the
    distinction between "hesitate before acting" and "restrain before acting" was de m imis,
    we concluded that such a slight deviation by the trial court was not an abuse of dis retion.
    Similar to Porter, we believe that the trial court's omission of the word "case" was de
    minimis. As the PCRA court concluded, "Whe instructions as given, clearly, adeq ately
    and accurately explained to the jury how to use the aggravating *96 and mitigatin
    circumstances in accordance with the law." (Opinion of the PCRA Court at 57).
    As such, we do not believe that such a trivial omission in phrasing would constitut an
    abuse of the trial court's discretion. Likewise, as there was no reasonable basis for 'al
    counsel to object to the instruction as given, counsel will not be deemed ineffectiv for
    failing to raise a meritless objection. Commonwealth v. Spotz, 896 A2d 1191, 1             -47
    (2006)
    Considering the instructions given to the jury as a whole, the instruction as given, with the omission of
    the word "complete," still adequately conveyed to the jury the law regarding the elements       at the
    Commonwealth was required to prove' beyond a reasonable doubt to' establish that Petitio       r did not act
    40
    in justifiable self-defense. Therefore, Petitioner has failed to establish prejudice and this laim was
    appropriately denied.
    Petitioner next claims that trial counsel was ineffective for failing to object and m ve for a
    mistrial following improper argument by the prosecution. As stated in Commonwealth         v.   ii, 
    10 A.3d 282
     (2010):
    The standards governing challenges to statements by the prosecutor are well-settl. : A
    prosecutor has reasonable latitude during his closing argument to advocate his cas
    respond to arguments of opposing counsel, and fairly present the Commonwealth'
    version of the evidence to the jury. A challenged statement by a prosecutor must b
    evaluated in the context in which it was made. Not every intemperate or improper etnark
    mandates the granting of anew trial. Reversible error occurs only when the unavo dable
    effect of the challenged comments would prejudice the jurors and form in their m" ds a
    fixed bias and hostility toward the defendant such that the jurors could not weigh e
    evidence and render a true verdict Commonwealth v. Cooper, 
    596 Pa. 119
    , 941 A. d
    655, 668 (2007) (citations omitted). Prosecutor remarks are not objectionable if th
    remarks "were based on the evidence or proper inferences therefrom...." Common ealth
    v. [Aaron] Jones, 
    571 Pa. 112
    , 
    811 A.2d 994
    , 1006 (2002). On the other hand, of 4 urse,
    the prosecutor should not "misstate the evidence or mislead the jury as to the: infer nce it
    may draw." Commonwealth v. Shain, 
    493 Pa. 360
    , 
    426 A.2d 589
    , 591-92 (1981)
    Commonwealth v. Ali, 
    10 A.3d 282
    , 307-08 (2010)
    Petitioner first submits that the prosecutor improperly asked the jury:
    "Do you think that at the very least Sergeant Singer who testified would know the
    difference between one gun firing and two guns firing? He said there were four to we
    shots and nothing about hearing those shots indicated to him that it came from MO than
    one gun because it didn't. (T., p. 439)
    On direct examination Sergeant Singer, who was the: first police officer to wive at the see e,:teStified as
    .follows:
    Q.     Now..,when you were in route to the location, did you:hear anything that
    .
    your. attention?
    A.     Yes. As I was pulling onto the scene, I heard approximately four to five gu shots
    sounding out. (T., p. 50)
    41
    Officer Singer was not asked any other questions on direct examination concemin the gunshots
    that he heard. He also testified that he did not 'find any weapons at the scene. (T., p. 53)    owever, on.
    cross-examination Officer Singer testified that when he heard the shots he was approxim. ely 100 feet
    away and he ::was sure they were gunshots. He was also asked:
    Q.       Can' you tell :us; if you remember, if there Was any kind of gap in time be een,
    like, .gunshot 1 and I know you said 4 or 5, so was there anytime lapse - tween
    shot 1 and, shot or shot 5 or were.they.someWha rapid?
    A.        I can't recall   if there was any time lapse between the shots.
    Q-        Okay. Okay. Now, when you arrive at the scene, you've already heard fo or
    five shots. Are you quite sure that it was four or five shots? Is that one of he
    things that you're sure about?
    A.       *Yes, that's   what Lean recall,.four.or fiveshots. (T.,:pp. 5859).
    The prosectitor's..argitment.concerning this issue, including the. statement objected    by
    Petitioner,   waS.s.as
    "There'.are at least a minimum of three shots that Mr. Scott fired that we know         d
    that's based on the. injuricS. And I. submit to youlhatthe.fourto five shots that eve one.
    said they heard were all fired by Mr. Scott. TO suggest there was some other seque ce of
    gunfire is ridictilous. It's not what. happened. Do you think that at the very least S rgeant
    Singer who testifiedwoUld.know the.differencebetween.one gun firing and two g s
    .firing?. Be' said there were four to 'five shots and nothing about hearing those shots
    indicated to him that it came from more than one gun because it *didn't. The only p rson.
    who had, a gun:there was Mr. Scott. (T;, p 439).
    Petitioner argues that. nothing in the record.. suggests that Sergeant Singer Was .asked if h&c suld make
    such a distinction between two guns Cr that he in any Waytestified to, the non-existence...of second gun
    firing and, that the statement by the prosecutor was complete fabrication. However,
    the statement by the prosecutor' does accurately'state that Sergeant Singer testified that he eard four or,
    five shots and did not recall.any.tiMe hipSe..betiwen the..shots. Whether 'the:prosecutor w    referring to
    this lack :of a lapse in the titne.bptween shots is. unclear. HOwever, given that the statemen was, in'the
    context of argument and the jury was instructed that. the, argument of counsel was' not evil nee and they
    42
    were the sole finders of the facts based on the evidence that wa.s presented, there is no bas s for finding
    that'counsel was ineffective in failing to object to the statement. (T., pp. 472-473)
    Petitioner next argues that the prosecutor's arguments concerning, the size and ch              cteristics of,
    gun used in the shooting was improper. The prosecutor argued that the gun used was a la ge gun, a .44
    magnum and that "it's not the typical gun that is around these days, which is usually a se         -automatic.
    They're obviously a lot smaller so they are used for concealment and so forth." (T., p. 43 )
    The evidence is clear that the gun used in the shooting was not retrieved and thee idence
    regarding the type of weapon used was circumstantial. Dr. Todd Luckasevic, Associate               edical
    Examiner, and Forensic Pathologist from the Allegheny County Medical Examiner's Offic              ,   testified that
    the injuries sustained by the decedent were consistent with "a large caliber such as a .44          agnum." and
    that " a .44 Magnum is a large handgun caliber, it's one of the largest." (T., p. 44)' In ad ition, the
    Firearm and Toolmark Examiner of the Allegheny County Medical Examiner's Office, Dee orate Tator,
    testified concerning the barrel lengths of a,.44 Magnum revolver and testified that it could vary in
    length, based on the make and model, from two inches to up to about ten and a half inches (T., p. 246)
    She also exhibited and demonstrated to the jury a Ruger .44 Magnum revolver that had 'a                  el length of
    seven and a half inches. (T., p. 246)
    Finally, the Commonwealth presented the testimony of Detective' Gregory Matthe s of the
    Allegheny County Police Department who testified that he executed a search warrant on P titioner's
    residence which resulted in locating three rounds of .38 ammunition and one round of 35 ammunition.
    (T., p. 204) In addition, during a search, of Petitioner's vehicle that, was: at the scene of the s ooting, he
    'found 'a .44 Magnum cartridges recovered 'from ,the passenger's side of the Petitioner's vehi e and a .44
    Magnum cartridge recovered from the center consol. (T., pp. 206-208) The prosecutor's               gument is
    supported by the circumstantial evidence, and the inferences therefrom, that the gun, used      i       the shooting
    43
    was .44 Magnum owned or possessed by Petitioner. In addition the argument that it was             large gun
    could also be a justifiable inference from the evidence. However, the prosecutor's &gime          t that the gun
    is not "typical" or that it is from the "old days" is not specifically supported by the evidenc     In fact,
    Ms. Tator's 'testimony ,that the .44 magnum can be found in various barrel lengths dependi g on the
    make and model would imply that it is not from the "old days." As noted above, not ever improper
    remark by a prosecutor warrants a new trial. In the context of all of the, evidence in this ca e, and given
    that Petitioner admitted that he fired a gun during the incident, Petitioner has failed to esta lish that he
    was prejudiced by the prosecutors argument concerning the gun used in the shooting.
    Petitioner next contends that the prosecutor improperly represented the Petitioner's estimony
    about his medical issues and the physical manifestations of his aphasia at trial by claiming       at they
    were fake. As discussed, above regarding Petitioner's symptoms of aphasia, the prosecutor n his closing
    argument argued that Petitioner's conduct on the, stand was to garner sympathy, which she Id not be
    considered by the jury in rendering its verdict. He also argued that the conduct of Petitions r varied
    depending on whether he was being questioned by his own counsel or the prosecutor. The ury had the:
    opportunity to observe Petitioner and could make its own assessment as to whether or not', ó argument
    by the prosecutor was valid. The prosecutor did not misstate any evidence and, therefore,          y, claim    that
    counsel was ineffective' in failing to object to these remarks is meritless.
    Petitioner next asserts that trial counsel was ineffective in failing to object to the pr secutor's
    statements during his closing argument that Petitioner "lied" during his: testimony. Regard g the
    Petitioner's testimony that he did not have the gun used in the shooting and that he got it fr m one of his
    attackers and that he dropped it in the parking lot, 'the prosecutor stated: "And to further SU gest that,
    that's an absolute lie by Mr. Scott." (T., p. 440) ; "He lied to you about what happened with the gun
    when he dropped it in the parking lot." (T., p 441):; "No. 1, he lied about the gun." (T., p. 59)
    44
    Regarding the statements made at the hospital where Petitioner went for treatment: "It's          erstandable,
    perhaps to argue that after he shoots Derrick and you see him get of the car and he realiz        what he's
    done   - which, by the way, is another lie he told you, that he didn't know he shot anybody, that he told
    the officer at the VA he didn't shoot anybody. (T., p. 442). Regarding calling the police         Cr   the
    shooting, the prosecutor stated: "He lied about calling the police. He calls the police way efore he kills
    anybody." (T., p. 462)
    In Commonwealth     v.   Cox, 863   Aid 536 (2004) the Supreme Court considered the       ssue of a
    prosecutor repeatedly referring in his argument to the defendant as a "liar" and stated:
    Appellant's third claim is that all prior counsel were ineffective for failing to objec to
    alleged prosecutorial misconduct Appellant argues that, during closing argument, e   i
    prosecutor made impermissible statements relating to the testimony of Appellant d
    Molyneux. First, Appellant contends that the prosecutor improperly referred to, Ap ellant
    as "a liar" on numerous occasions. Relying on the decision of this Court in.
    Commonwealth v. Ragan, 
    538 Pa. 2
    , 
    645 A.2d 811
     (1994), Appellant maintains tha
    a-refutable evidence did not exist for the prosecutor to broadly characterize Appel': t as
    "a liar." Second, Appellant contends that the prosecutor improperly argued that
    Molyneux was not thoroughly versed in his profession, and instead engaged in "ho us
    pocus" and "mumbo jumbo," which was clearly contrary to the record. Consequent y,
    Appellant avers that trial counsel was ineffective for failing to object to the statetn ts of
    the prosecutor and, accordingly, appellate counsel was ineffective for failing to rais the
    alleged misconduct on direct appeal.
    In Ragan, we explained that a prosecutor canriot intrude upon the exclusive functi n of
    the jury to evaluate the credibility of witnesses by broadly characterizing the testimny of
    a witness as a "big lie." Ragan, 645 A.2c1 at 829 (citing Commonwealth v. Kuebler, 
    484 Pa. 358
    , 
    399 A.2d 116
    , 118 (1979)). We also noted in Ragan, however, that "a
    prosecutor's assertion that a witness had lied dOes not warrant a new trial when the
    statement vvas a fair inference from irrefutable evidence rather than a broad
    characterization." Id (citing Commonwealth v. Floyd, 
    506 Pa. 85
    , 
    484 A.2d 365
    , 3 9
    (1984)).
    10111213 It is well settled that statements made by the prosecutor to the jury durin
    closing argument will not form the basis for granting a new trial unless the unavoid ble
    effect of such comments is to prejudice the jury, forming in their minds fixed bias d
    hostility towards the accused that would prevent them from properly weighing the
    evidence and rendering a true verdict. Commonwealth v. Gorby, 
    527 Pa. 98
    , 588 A. d
    902, 909 (1991). Similar to the defense, the prosecution is accorded reasonable latit de
    and may employ oratorical flair in arguing its version of the case to the jury.
    Commonwealth v Williams, 
    541 Pa. 85
    , 660 A..2c11316, 1322 (1995), cert. denied, )
    16 U.S. 1051
    , 
    116 S.Ct. 717
    ,133:L.Ed.2d 671 (1996). Prosecutorial misconduct will nit be
    45
    found where the comments were based on the evidence or derived from proper
    inferences. Commonwealth v. Chester, 526 Pa, 578, 
    587 A.2d 1367
    , 1377 (1991), ert.
    denied, 
    502 U.S. 959
    , 
    112 S.Ct. 422
    , 
    116 L.Ed.2d 442
     (1991). Finally, any alleged y
    improper prosecutorial comments must be examined within the context of the con uct. of.
    defense counsel. Commonwealth v. Clayton, 
    516 Pa. 263
    ,
    532 A.2d 385
    , 396 (198 ), cert.
    denied, 
    485 U.S. 929
    , 
    108 S.Ct. 1098
    , 
    99 L.Ed.2d 261
     (1988).
    As support for his argument, Appellant notes the remark of the prosecutor during
    closing argument in which he stated: "Well, I suggest to you that he didn't tell you hat
    he knew, and he told you three different stories about what he knew and he lied in ach
    one of them." (N.T., May 15, 1987, page 1957). Further, Appellant points to anoth
    comment made by the prosecutor during his closing argument in which he asserted
    "Let's look at his other statement, the next one he gives, the next scenario of lies h tells."
    (N.T., May 15, 1987, page 1971).
    In rejecting the argument of Appellant, the PCRA court explained that the stateme w of
    the prosecutor "were fair comments on the evidence and did not unreasonably infl e or
    incite the passions of the jury." PCRA Court Memorandum Opinion, June 18, 200 ,at
    We agree. Commonwealth v. Cox, 
    581 Pa. 107
    , 126-28, 
    863 A.2d 536
    , 547-48 (2 04)
    The statements by the prosecutor that Petitioner lied were in reference to. and refuting spec fie testimony
    by Petitioner and argument by defense counsel that Petitioner grabbed the gun from one           his attackers
    and subsequently dropped it on the ground at the scene. (T., pp. 419-421). These.argprifen addressed
    the evidence that no gun Was found at the scene despite the fact the police arrived and beg       .   securing
    the scene as Petitioner Was leaving the scene and cartridges consistent with.ahandgun,wer found in
    .Petitioner's vehicle. The comments also address the evidence that indicated that Petitioner stated that he
    had not fired a.gun that day when he at trial he acknowledged, and the. video confirmed, th.     t: he;   in. fact,
    fired the gun. The comments also are directed to Petitioner's testimonylhat.he intended to all the
    police after the shooting but he didn't have a phone when the VA officer testified that he f I    I   &that
    Petitioner had an operational cell phone in his possession and it was the VA officer who Ca led the
    police. Therefore, counsel was not ineffective for failing to object to the above statements ad
    argument.
    Petitioner also claims that the prosecutor improperly referred to the shooting as "m rder" when
    he stated: "And you have to ask yourself, why didn't he call the police? We didn't he repo that he just
    46
    murdered some kid, shot him in the back of the: head? (T., p.. 462) Although the word "m rder" was
    used, the use of this word in this context does not warrant a finding that counsel was ineff ctive in
    failing to object. In Commonwealth     v.   Brown, 
    711 A.2d 444
    , 455 (1998) the Court discus ed the use of
    the phrase "child murder" when referencing the defendant and stated:
    "When viewed in context, this reference to Brown's attempts to avoid being arrest, as a.
    child murderer is not so inflammatory that it rendered the jury incapable of rend ing a
    fair verdict. In an abundance of caution, the prosecutor mitigated any perceived pr judice
    to Brown when he withdrew this statement m front of the jury. Moreover, the trial ourt
    gave the jury two instructions-one before opening statements and another before losing
    arguments-that the arguments of counsel are not evidence.. id. at 52; and MT., F ruary
    16, 1995, p. 24. We must presume that the jury followed these instructions.
    Commonwealth v. Baker, 
    531 Pa. 541
    , 
    614 A.2d 663
     (1992). Accordingly, no retie is due
    for this claim. Commonwealth v. Brown, 
    711 A.2d 444
    , 455 (1998) (Emphasis ad ed)
    In this case, despite the fact that the prosecutor used the word "murder" in referencing the act of
    shooting the victim, it is also clear that he informed the jury that he did not believe that Pe itioner shot
    victim intentionally. During his closing argument the prosecutor stated:
    "Mr. Scott obviously is the one who caused the death of Derfick House, and it could be ar        ed that he
    did so recklessly, as I am to you." (T., p. 456) Considering the context of the statement, c unsel was
    not ineffective failing to object to the statement or move fora mistrial.
    Petitioner next alleges that the prosecutor improperly commented on F'etitioner's p st arrest, post
    Miranda decision to terminate his interview with Detective DeFelice. (T., p. 462)
    Detective DeFelice testified that he interviewed Petitioner on the morning of the shooting t police
    headquarters and prior to doing so he gave him his Miranda warnings. (T., p. 231). Petiti ner waived
    his rights and during the subsequent interview he denied that he fired a firearm at all that d y. (T., p.
    235) Detective DeFelice reminded him that prior to the interview they had conducted a gu shot residue
    test on his hands at which point Petitioner informed Detective DeFelice that he was clean g his guns
    earlier in the day. Detective DeFelice then asked him if he shot anybody that night in the arking lot
    47
    and at that point Petitioner did not answer the question and ended the interview. (T., p.,2 7) During his
    closing argument, the prosecutor made the: following comments:
    "But that gun was his. Some kid didn't pull it out of his pocket.
    He doesn't report it to the police. He never admits to either the VA officer or Det ctive
    DeFelice what he did because he's conscious of his guilt. And when Detective De elice
    says to him, Did you fire a gun that night?' He says, 'No, I didn't.' And they resp nded
    with, 'Well, remember we did a gunshot residue test on your hands?' He said, 'We 1,
    maybe I was cleaning my guns at home.' And just a brief aside about the gunshot sidue
    kit, it's a test that Detective DeFelice has told you he did on the' defendant's hands o
    show whether or not he recently fired a gun. You didn't hear any evidence about t e
    results of that test because it wasn't in contention in this case. He admits to firing at
    weapon. So whatever the results were were not brought into evidence because it ould
    be a waste of your time. There's no point in getting into every single detail of this ase.
    It's already admitted by the defendant, and that's the point. But when Detective De elice
    then comes back, 'Are you sure you never fired a gun that night, 'lie ends the inte iew,
    doesn't answer the question. And why? Because, of course, he knows what he di but he       1
    didn't want to admit it" (T., pp. 461-462) (Emphasis added)
    Petitioner contends that this, comment by the prosecutor was in .a.ditect violation of his:Fi
    Amendment right to remain silent. At the PCRA hearing trial Counsel testified.that he did not recall the
    various comments made dining the closing .argument of'the prosecutor and did not consid                r making .a
    motion for Mistrial on the'basis of any arguments that were heard during closing argumen               .    (T., pp.. 50-
    51) Although.the above statement references the.temiination ofthe Interview,... the referen             'is*    the.
    Context that Petitioner.had.already told Detective DeFelice,. after being.given his Miranda                arnhigs; That
    he hadnot. fired .4 gun that. day. (T.,.p.. 235) .The. statement by Petitioner *that he had not   f .ed a: gun that
    .day was, compared to the evidence on the video, as well as Petitioner's admission at trial,           at .he. had, iii
    fact, fired a gun. (T.,pp.271-272) Although 'the prosecutor could have referenced both P itioner's
    statement 'during .theinterview thathe.hadnotifire.d a gun With.his admission* trial witho t discussing
    the termination of the interview, the.prosecutofs.statement. was not an attempt'to use Petit" ner's.
    decision to terminate..the interview in order to impeach: any testimony or evidence subsequ ntly offered
    by Petitioner *trial that he did not fire agun, as..that issue was, not in.dispute.. Therefore,            al counsel
    48
    was not ineffective in failing to object to the comment or mOve for. a mistrial as Petitioner. as failed to
    11
    .prove.that he was prejudiced.
    Petitioner's final argument is that it was error tonot. consider the alleged claims..of
    ineffectiveness of counsel                 and in not finding that prejudice resuited.from.the              ultiple
    constitutional violations. However, no number of failedineffectivenesS claims may collec ively form a
    basis .for relief if the....claimS individually fail: w do so.". Commonwealth   v, .Reicl,   
    99 A.3d 47
     ,.520 (2014)
    As a result of    of the foregoing,.Petitioners.PatA Petition was appropriately dismissed.
    49