Com. v. Wynn-Turner, E. ( 2020 )

J-S44043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EVANS ALEXANDER WYNN-TURNER :
:
Appellant : No. 622 MDA 2020
Appeal from the PCRA Order Entered March 24, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004144-2015
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 17, 2020
Evans Alexander Wynn-Turner (Appellant) appeals, pro se, from the
order entered March 24, 2020, in the York County Court of Common Pleas,
denying his first petition filed pursuant to the Post Conviction Relief Act1
(PCRA), seeking relief from his jury conviction of one count of persons not to
possess firearms.2 Appellant raises several claims concerning the ineffective
assistance of trial counsel. For the reasons below, we affirm.
The relevant facts and procedural history were recounted by this Court
in the memorandum decision affirming Appellant’s judgment of sentence on
direct appeal:
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. § 6105(a)(1).
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The record reveals that at approximately 11:00 p.m., on
April 27, 2015, York Police Officers responded to a 911 call
concerning a man with a weapon at 319 East King Street. When
officers arrived at the residence, they were permitted entry and
spoke to Ms. Lakiesha Liggins. Ms. Liggins provided a written
statement informing the officers that she called the police because
she had ended her relationship with Appellant, and when she told
him that he needed to vacate the premises, Appellant brandished
a gun and threatened to kill her.2 Police then searched the home.
Officer Paul Thorne testified that when he looked out of a window
on the third floor, he saw a lunch box on the roof of a neighboring
house. Officer Thorne requested a ladder from the fire
department, and with the ladder in place, he climbed to the roof
and retrieved the lunch box. Inside the lunch box, Officer Thorne
discovered a loaded handgun. Ms. Liggins testified at [a] habeas
corpus hearing that the lunch box belonged to her son and the
gun found inside was the gun that was kept at her house.
__________
2 It does not appear that this written statement was ever admitted
into evidence. Rather, Ms. Liggins’s April 27, 2015 statement was
used for impeachment purposes as a prior inconsistent statement,
and Ms. Liggins testified that she had written the statement and
signed it.
__________
Officer Matthew Tunnal testified that he located Appellant
on the third floor of the house. Appellant was calm until Officer
Sean Haggarty informed him that the firearm had been recovered.
Appellant then began sweating profusely. The officers arrested
Appellant and charged him with receiving stolen property, simple
assault, terroristic threats, and persons not to possess firearms.3
__________
318 Pa.C.S. § 3925(a), 18 Pa.C.S. § 2701(a)(3), 18 Pa.C.S. §
2706(a)(1), and 18 Pa.C.S. § 6105(a)(1), respectively.
__________
Despite the 911 call and the written statement she gave to
police, Ms. Liggins later disavowed her claim that Appellant
brandished a firearm, and at trial, Ms. Liggins refused to testify.
In light of Ms. Liggins’s recantation, the Commonwealth sought to
have her testimony from Appellant’s preliminary hearing and
habeas corpus hearing admitted under Pa.R.E. 804(a)(2).
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Appellant did not object to the admissibility of Ms. Liggins’s prior
testimony.4 However, Appellant did object to the Commonwealth
having Ms. Liggins’s written statement to police and the recording
of her 911 call admitted into evidence. The Commonwealth
sought to use Ms. Liggins’s written statement and 911 call as
evidence that Appellant possessed the gun that was later
discovered on the neighbor’s roof.
__________
4A declarant is considered unavailable as a witness if the declarant
refuses to testify about the subject matter despite a court order
to do so. Pa.R.E. 804(a)(2). When the declarant is unavailable,
the declarant’s prior testimony is admissible where it is offered
against a party who had a “full and fair” opportunity to examine
the witness. Pa.R.E. 804(b)(1) and comment thereto (citing
Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992)).
__________
After consideration, the trial court concluded that the
written statement could be used for impeachment purposes as a
prior inconsistent statement and the 911 call was admitted as an
excited utterance under Pa.R.E. 803(2).
Despite Ms. Liggins’s refusal to testify at trial and
recantation of her statement that Appellant had pointed a gun at
her, the record reveals that she did admit calling 911 on the night
in question. Additionally, Ms. Liggins testified previously that
Appellant had a gun,[3] threatened to kill her, and that the gun the
police retrieved was the gun that was kept at her house. However,
Ms. Liggins stated that the gun belonged to a former paramour,
and she emphasized that the gun was not discovered inside her
house.
On March 22, 2017, a jury found Appellant guilty of persons
not to possess firearms and acquitted him of the remaining
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3 We note this appears to be a misstatement by the prior panel as Liggins
never testified that Appellant had a gun on the night in question. Rather, at
both the preliminary hearing and habeas hearing, Liggins testified that
Appellant did not threaten her with a gun. See N.T. Preliminary H’rg,
6/29/15, at 7; N.T. Habeas H’rg, 2/29/16, at 18. However, at both hearings,
she also conceded that she had stated he did threaten her with a gun in both
her 911 call and statement to police on the night of the incident. See N.T.,
Preliminary H’rg, at 9-10; N.T., Habeas H’rg, at 8, 15-16.
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charges. On May 3, 2017, the trial court sentenced Appellant to
a term of four to eight years of incarceration.
Commonwealth v. Wynn-Turner, No. 1410 MDA 2017 (unpub. memo. at
1-5) (record citations omitted).
Appellant was represented at trial and sentencing by Assistant Public
Defender Kathryn Bellfy, Esquire. At the sentencing hearing, Attorney Bellfy
informed the court that Appellant wished to proceed pro se post-sentencing.
N.T. Sentencing H’rg, 5/3/17, at 3. Thus, at the end of the hearing, the trial
court conducted a Grazier4 colloquy and determined that Appellant
“knowingly, voluntarily, and intelligently decided to represent himself from
[that] point forward[.]” Id. at 15. The trial court appointed Attorney Bellfy
as standby counsel. Id. at 15-16. Appellant filed a pro se post-sentence
motion later that same day, followed by an amended post-sentence motion
on May 22, 2017. The trial court denied relief on August 31, 2017, and this
Court subsequently affirmed Appellant’s judgment of sentence on direct
appeal on May 1, 2018.5 See Wynn-Turner, 1410 MDA 2017.6
On November 16, 2018, Appellant, acting pro se, filed both a
Memorandum of Law and Supplemental Brief, which the court considered,
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4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5 We note Appellant proceeded on direct appeal pro se, after the trial court
conducted a Grazier hearing, and determined Appellant knowingly and
voluntarily waived his right to counsel.
6 Although Appellant initially filed a petition for allowance of appeal in the
Pennsylvania Supreme Court, he later discontinued that request. See 360
MAL 2018.
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collectively, to be Appellant’s first, timely PCRA petition. In both filings,
Appellant raised claims challenging the ineffective assistance of trial counsel.
See Appellant’s Memorandum of Law Supporting Post-Conviction Collateral
Relief under the Pennsylvania Post Conviction Relief Act, 11/16/18, at 12-29;
Appellant’s Supplemental Brief in Support of Petition for Post Conviction Relief,
11/16/18, at 1-17. The PCRA court initially appointed counsel to assist
Appellant; however, Appellant later requested to proceed pro se, and following
another Grazier hearing, the court granted his request. See Order, 4/29/19.
On February 10, 2020, the PCRA court notified Appellant of its intent to
dismiss his petition without first conducting an evidentiary hearing pursuant
to Pa.R.Crim.P. 907. See Notice Pursuant to Pennsylvania Rule of Criminal
Procedure 907, 2/10/20. Although Appellant filed a timely, pro se response,
the PCRA court entered an order denying Appellant’s petition on March 24,
2020. This timely appeal follows.7
Appellant raises the following claims on appeal:
[1] Whether Attorney [ ] Bellfy provided ineffective assistance of
counsel at trial for failing to request Pennsylvania Suggested
Standard Jury Instruction 4.08(A) (criminal) to limit the jury’s use
of a prior inconsistent statement contained within the prior
recorded testimony from the habeas corpus hearting held
February 29, 2016[?]
[2] Whether Attorney [ ] Bellfy provided ineffective assistance of
counsel at trial for failing to make a standard hearsay objection to
____________________________________________
7Appellant complied with the PCRA court’s directive to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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inadmissible hearsay contained within Lakeisha Liggins[’s]
preliminary hearing testimony held June 29, 2015[?]
[3] Whether Attorney [ ] Bellfy provided ineffective assistance of
counsel at trial for failing to utilize the written affidavit of Lakiesha
Marie Liggins which was an exculpatory document material to the
case against [Appellant] and would have had an obvious impact
on the credibility of the Commonwealth’s key witness[?]
[4] Whether Attorney [ ] Bellfy provided ineffective assistance of
counsel at trial for not objecting to improper arguments made by
the Commonwealth’s attorney during opening statements and
closing arguments[?]
[5] Whether Attorney [ ] Bellfy provided ineffective assistance of
counsel at trial for failing to request redaction of a racial slur in
Commonwealth Exhibit Number 2[?]
[6] Whether the cumulative impact of each of the individual
claims of Attorney [ ] Bellfy’s ineffectiveness, considered
collectively, resulted in such prejudice to Appellant that a new trial
should be awarded[?]
Appellant’s Brief at 4-5.
Our review of an order denying a PCRA petition is well-settled: “[W]e
must determine whether the PCRA court’s order ‘is supported by the record
and free of legal error.’” Commonwealth v. Johnson, 139 A.3d 1257, 1272
(Pa. 2016) (citation omitted). Moreover,
“[A] petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no
genuine issue concerning any material fact and the petitioner is
not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings.” “A reviewing court
on appeal must examine each of the issues raised in the PCRA
petition in light of the record in order to determine whether the
PCRA court erred in concluding that there were no genuine issues
of material fact and in denying relief without an evidentiary
hearing.”
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Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015) (citations
omitted).
Where, as here, a petitioner’s claims raise allegations of prior counsel’s
ineffectiveness,
the petitioner must demonstrate: (1) that the underlying claim
has arguable merit; (2) that no reasonable basis existed for
counsel’s actions or failure to act; and (3) that the petitioner
suffered prejudice as a result of counsel’s error. . . . Counsel is
presumed to be effective; accordingly, to succeed on a claim of
ineffectiveness the petitioner must advance sufficient evidence to
overcome this presumption.
Johnson, 139 A.3d at 1272 (citations omitted). Furthermore, it is well-
established that “[a] failure to satisfy any prong of the ineffectiveness test
requires rejection of the claim of ineffectiveness.” Commonwealth v. Miller,
231 A.3d 981, 991 (Pa. Super. 2020) (citations omitted).
In his first issue, Appellant insists Attorney Bellfy provided ineffective
assistance when she failed to request a jury instruction limiting the jury’s
consideration of Liggins’s prior inconsistent statement to impeachment
purposes only. Appellant’s Brief at 9. See Pa. SSJI (Crim) § 4.08A(2) [Second
Alternative] (“You may not regard evidence of an earlier inconsistent
statement as proof of the truth of anything said in that statement.”).
By way of background, we reiterate that during her 911 call to police on
the night of the incident, Liggins stated Appellant threatened her with a gun.8
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8 The 911 call was played for the jury during Appellant’s trial. See N.T.,
3/20/17, at 94-95. On direct appeal, this Court concluded the trial court did
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N.T., 3/21/17, at 64-65, 86. That same night, Liggins signed a written
statement for the police in which she claimed that during an argument,
Appellant “pulled out a gun, and said, you better send me to jail soon because
I feel like killing you.” N.T., Habeas H’rg, at 15. Although the written
statement was not introduced into evidence, it was read verbatim during
Appellant’s habeas hearing. See id. At both Appellant’s preliminary hearing,
held on June 29, 2015, and habeas hearing, held on February 29, 2016,
Liggins contradicted her prior statements, and testified that Appellant did not
possess a firearm at any time during their argument. See N.T., Preliminary
H’rg, at 7, 9-10, 13-14; N.T., Habeas H’rg, at 18. In response, at both
hearings, the Commonwealth confronted Liggins with her prior statements.
See N.T., Preliminary H’rg, at 9-10; N.T., Habeas H’rg, at 8, 15-16.
Subsequently, at Appellant’s jury trial, Liggins refused to testify at all. N.T.,
3/20/17, at 76-78. Therefore, the trial court permitted the Commonwealth to
read to the jury Liggins’s prior testimony at both the preliminary hearing and
habeas hearing. See id. at 86; N.T., 3/21/17, at 61, 73. Liggins’s written
statement to police was read into the record via her testimony at Appellant’s
habeas hearing. N.T., 3/21/17, at 84.
Furthermore, we note that on direct appeal, Appellant challenged, inter
alia, the trial court’s evidentiary rulings admitting both the 911 call and
____________________________________________
not abuse its discretion in admitting the 911 call into evidence “as a present
sense impression exception to the rule against hearsay.” Wynn-Turner,
1410 MDA 2017 (unpub. memo. at 17).
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Liggins’s written police statement into evidence. See Wynn-Turner, 1410
MDA 2017 (unpub. memo. at 11-18). With regard to the written police
statement, this Court concluded the trial court properly admitted the
statement:
The written statement was used as a prior inconsistent
statement to impeach Ms. Liggins’s contradictory statement that
Appellant did not have a gun. A non-party witness may be cross-
examined on prior statements they have made when those
statements contradict their in-court testimony. Commonwealth
v. Carmody, 799 A.2d 143, 148 (Pa. Super. 2002). As noted,
prior inconsistent statements are admissible for impeachment
purposes. Id. Moreover, a prior inconsistent statement may be
offered as substantive evidence if it meets additional requirements
of reliability: 1) was the statement given under reliable
circumstances; and 2) was the declarant available for cross-
examination. Id.We are cognizant that Carmody contemplates prior
inconsistent statements on cross-examination. However, it is
within the trial court’s discretion to permit a party to impeach its
own witness with prior inconsistent statements. Commonwealth
v. Grimes, 648 A.2d 538, 543 (Pa. Super. 1994).
Here, when Ms. Liggins refused to testify at trial, the
Commonwealth sought to treat her as a hostile witness as on
cross-examination. The trial court did not specifically rule on this
because the court opined that Ms. Liggins was refusing to answer
any questions, hostile or otherwise. The trial court then inquired
if the Commonwealth had any prior statements made by Ms.
Liggins. The Commonwealth proceeded to ask Ms. Liggins if she
had made that prior inconsistent statement, and she agreed that
she had. Moreover, we note that Ms. Liggins read the written
statement into evidence at the preliminary hearing, and the notes
of testimony from that hearing were admitted into evidence.[9]
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9 This appears to be a misstatement. Liggins read her written police statement
into evidence during the habeas hearing, not the preliminary hearing. See
N.T., 2/29/16, at 15-16. Nevertheless, the transcript from the habeas hearing
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While Ms. Liggins was clearly unavailable for cross-examination at
trial, which is required for the statement to be admitted as
substantive evidence under Carmody, she was available when
the statement was read into the record at the [prior] hearing as
noted by the court. Ultimately, we conclude that the portions of
the written statement introduced via the trial court’s discretion
and through prior testimony were properly admitted.
Wynn-Turner, 1410 MDA 2017 (unpub. memo at 13-14) (record citations
omitted). Thus, this Court determined Liggins’s written statement to police
was admissible as both impeachment and substantive evidence. See
Carmody, 799 A.2d at 148 (holding prior inconsistent statement may be
admissible as substantive evidence when (1) it is “given under reliable
circumstance[,]” such as reduced to writing and signed by the declarant, and
(2) the declarant is available for cross-examination, even if cross examination
occurred at a prior hearing).
Accordingly, because this Court determined on direct appeal that
Liggins’s written police statement was admissible as substantive evidence,
Appellant’s present claim has no arguable merit. Indeed, trial counsel had no
basis to request a jury instruction limiting its consideration of the statement
as impeachment evidence only. Thus, his first claim fails.
Next, in a related claim, Appellant contends Attorney Bellfy was
ineffective for failing to “make a standard hearsay objection to inadmissible
hearsay contained within Ms. Liggins[’s] preliminary hearing testimony[.]”
____________________________________________
was also read into evidence during Appellant’s jury trial. See N.T., 3/21/17,
at 73-87. Moreover, Appellant, acting pro se, had the opportunity to cross-
examine Liggins concerning this prior inconsistent statement at the habeas
hearing, although he questioned her only about her contradictory statement
in the 911 call. See N.T., Habeas H’rg, at 17-18.
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Appellant’s Brief at 16. Again, Appellant focuses on Ms. Liggins’s written
statement to police. At the preliminary hearing, the written statement was
not read into evidence; rather, the Commonwealth questioned Ms. Liggins
about her prior inconsistent statement in the following exchange:
[Commonwealth:] You also provided police with a written
statement; is that correct?
[Liggins:] Yes.
[Commonwealth:] You see this document that I’m holding up?
That is your handwriting?
[Liggins:] Yes.
[Commonwealth:] And that’s your signature at the bottom?
[Liggins:] Yes.
[Commonwealth:] And in that you state that [Appellant] said that
he pulled out a gun and said, You better send me to jail soon
because I feel like killing you?
[Liggins:] Yeah.
[Commonwealth:] Did you write it?
[Liggins:] Yeah, I just wrote it.
[Commonwealth:] And it is your claim today that there was no
gun?
[Liggins:] No gun.
N.T., Preliminary H’rg, at 10. Further, as noted above, during the subsequent
habeas hearing, the Commonwealth asked Liggins to read her written police
statement into the record. N.T., Habeas H’rg, at 15-16. The transcripts of
both of these hearings were later read into the record at trial after Liggins
refused to testify. N.T., 3/20/17, at 77, 92; N.T., 3/21/17, at 61-87.
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Although on direct appeal, Appellant challenged the court’s ruling
admitting Liggins’s written statement via her habeas testimony, he now
appears to argue that counsel should have “raised a standard hearsay
objection to the admission of Ms. Liggins’[s] written statement contained
within the preliminary hearing testimony from June 29, 2015.” See
Appellant’s Brief at 20. We conclude his argument fails all three prongs of the
ineffectiveness test.
The Commonwealth’s reference to Liggins’s prior written statement was
permissible at the preliminary hearing for the same reasons it was permissible
at the habeas hearing: the prior inconsistent statement was given under
reliable circumstances and Liggins was available for cross-examination. See
Wynn-Turner, 1410 MDA 2017 (unpub. memo. at 13). Thus, counsel had
no basis to object to this testimony from the preliminary hearing transcript.
Moreover, Appellant cannot demonstrate he was prejudiced by the reference
to Liggins’s prior statement in the preliminary hearing transcript since
Liggins read her entire statement into the record at the habeas hearing,
and, as we determined supra, that transcript was properly read into the
record at trial. Therefore, Appellant’s second claim fails. See Johnson, 139
A.3d at 1272.
In his third issue, Appellant asserts Attorney Bellfy was ineffective for
failing to utilize an “exculpatory” notarized affidavit, authored by Liggins on
May 22, 2016, in which she averred she had written a “false statement” about
Appellant in April 2015, and that Appellant “never possessed the gun that was
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found that day that [she] made [the] false allegations.” See Affidavit of
Lakiesha Marie Liggins, 5/22/16. Although the affidavit was marked as
Commonwealth Exhibit 11 at trial,10 it was not introduced by either party. In
its Rule 907 notice, the PCRA court opined that the affidavit was hearsay, and
not subject to any exceptions. Notice Pursuant to Pennsylvania Rule of
Criminal Procedure 907 at ¶ 2(B). However, on appeal, Appellant maintains
the affidavit was admissible pursuant to Pennsylvania Rule of Evidence 806,
“Attacking and Supporting the Declarant’s Credibility.”11 Furthermore, while
he recognizes “[t]he jury did hear that [ ] Liggins recanted her claim that [he]
possessed a gun on the date in question” through Liggins’s habeas hearing
testimony, Appellant contends that testimony was “effectively impeached by
the Commonwealth,” and, therefore, he was prejudiced when Attorney Bellfy
failed to use the affidavit to “support the credibility of [ ] Liggins’ habeas
corpus testimony.” Appellant’s Brief at 25 (emphasis added).
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10 See N.T., 3/20/17, at 79-80.
11 Rule 806 provides:
When a hearsay statement has been admitted in evidence, the
declarant’s credibility may be attacked, and then supported, by
any evidence that would be admissible for those purposes if the
declarant had testified as a witness. The court may admit
evidence of the declarant’s inconsistent statement or conduct,
regardless of when it occurred or whether the declarant had an
opportunity to explain or deny it. If the party against whom the
statement was admitted calls the declarant as a witness, the party
may examine the declarant on the statement as if on cross-
examination.
Pa.R.E. 806.
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We need not address whether the May 2016 affidavit was admissible
under Rule 806 because we conclude Appellant cannot demonstrate he was
prejudiced. See Miller, 231 A.3d at 991. Indeed, at both Appellant’s
preliminary hearing and habeas hearing, Liggins testified under oath that
Appellant did not possess a firearm on the night in question. Her sworn
testimony from both hearings was read to the jury at trial. The
Commonwealth then attempted to discredit her by introducing her 911 call
and written statement to police from the night of the incident, in which she
stated Appellant threatened her with a firearm. The fact that Liggins signed
an affidavit admitting she lied in her initial statement after both the
preliminary hearing and habeas hearing, renders the affidavit superfluous.
Appellant already had the opportunity at both prior hearings to cross-examine
Liggins concerning why she purportedly initially lied to the police. See N.T.,
Preliminary H’rg, at 13 (Liggins testified she told police Appellant had a gun
because she “just wanted him out of the house [and] figured they wouldn’t
make him leave because he’s a resident there”); N.T., Habeas H’rg, at 17-18
(same). Thus, by the time Liggins signed the affidavit, she had already
recanted her prior statement to police under oath in two separate hearings.
Because Appellant cannot demonstrate “that there is a reasonable probability
that the outcome of the proceedings would have been different but for
counsel’s” failure to introduce Liggins’s May 2016 affidavit, we conclude no
relief is warranted. See Johnson, 139 A.3d at 1272.
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Appellant’s fourth claim alleges Attorney Bellfy’s ineffectiveness for
failing to object to purported improper arguments in the Commonwealth’s
opening and closing statements to the jury. See Appellant’s Brief at 27.
Appellant insists the Commonwealth committed misconduct when it argued
that the jury should consider Liggins’s April 2015 written police statement as
substantive evidence, “beyond the limited purpose it was admitted.” Id. See
also N.T., 3/20/17, at 71-72; N.T., 3/21/17, at 119-20. However, the fallacy
with this claim is that this Court held on direct appeal that Liggins’s statement
to police was admissible as both impeachment and substantive evidence.
Wynn-Turner, 1410 MDA 2017 (unpub. memo at 13-14). Thus, Appellant’s
present allegation has no arguable merit. See Johnson, 139 A.3d at 1272.
In his penultimate issue, Appellant insists Attorney Bellfy was ineffective
for failing to request the redaction of a racial slur from the 911 call. Appellant’s
Brief at 31. Appellant maintains that during the call, Liggins stated “I don’t
give a fuck about no nigga.”12 Id. The 911 call was played twice for the jury
— once during the Commonwealth’s case-in-chief and a second time during
deliberations when the jury requested to hear the recording again. See N.T.,
3/20/17, at 95; N.T., 3/21/17, at 157. Appellant argues “[c]ompetent trial
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12We note the recording of the 911 call is not included in the certified record,
and the PCRA court believed Liggins stated, “I’m not talking about no nigger.”
Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907 at ¶ 2(H).
However, regardless of what Liggins actually stated, both the PCRA court and
Commonwealth agree she referred to Appellant by a racial slur. See id.;
Commonwealth’s Brief at 18.
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counsel would not allow the Commonwealth’s attorney to present evidence
that referred to Appellant in such a hateful manner when it could have easily
been redacted.” Appellant’s Brief at 31. Further, he asserts that “[e]ach time
the word . . . was played loudly and echoed throughout the . . . courtroom,
[he] felt so small and helpless because [he] was the ‘nigga.’” Id. at 32.
Again, we conclude no relief is warranted. As the PCRA court found in
its Rule 907 notice, “Ms. Liggins used [a racial slur] during a phone call she
made to 911, while she was in an excited emotional state, shortly after she
was threatened by [Appellant] at gunpoint while her child and mother were
also in the residence.” Notice Pursuant to Pennsylvania Rule of Criminal
Procedure 907 at ¶ 2(H). The court noted that the Commonwealth did not
refer to Appellant “in any derogatory or offensive manner.” Id.
Furthermore, Appellant has also failed to demonstrate he was
prejudiced. Indeed, the trial court specifically inquired of the jury during voir
dire whether anyone believed “that [Appellant’s] race would play any part
whatsoever in deciding whether or not he is guilty of any of the crimes
charged[.]” N.T., 3/20/17, at 41. No juror responded affirmatively. Id.
Appellant’s only allegation of prejudice in his brief is that Liggins’s use of the
racial slur made him feel “small and helpless.” Appellant’s Brief at 32. He has
failed to demonstrate “that there is a reasonable probability that the outcome
of the proceedings would have been different but for counsel’s” failure to seek
redaction of the racial slur in the 911 call. See Johnson, 139 A.3d at 1272.
Thus, this claim fails.
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Lastly, Appellant raises a claim of cumulative error, arguing “Attorney .
. . Bellyfy’s errors viewed cumulatively denied Appellant a trial worthy of
confidence.” Appellant’s Brief at 34. Appellant recognizes that “Pennsylvania
State Appellate Courts have consistently rejected the idea that cumulative
error can lead to post-conviction relief if the claims have no arguable merit.”
Appellant’s Brief at 33. See Commonwealth v. Johnson, 966 A.2d 523,
532 (Pa. 2009) (“This Court has repeatedly held that ‘no number of failed
[ineffectiveness] claims may collectively warrant relief if they fail to do so
individually.’”) (citations omitted). Nevertheless, he maintains the
Pennsylvania Supreme Court has held that “issues that are dismissed based
on a lack of prejudice will be considered together.” Appellant’s Brief at 33.
See Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (“When the
failure of individual claims is grounded in lack of prejudice, then the
cumulative prejudice from those individual claims may properly be
assessed.”); Johnson, 966 A.3d at 532 (“[I]f multiple instances of deficient
performance are found, the assessment of prejudice properly may be
premised upon cumulation.”). Based solely on his bald allegation that
Attorney Bellfy’s cumulative “errors” denied him a fair trial, Appellant insists
he is entitled to relief.
We disagree. First, we emphasize that of the five ineffectiveness claims
Appellant has raised on appeal, we deny three based on lack of merit, and
only two based solely on lack of prejudice — Attorney Bellfy’s alleged failure
to introduce Liggins’s May 2016 affidavit, and her alleged failure to seek
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redaction of a racial slur from the 911 call. We cannot conclude that these
purported errors, even considered together, resulted in cumulative prejudice
warranting relief. See Spotz, 18 A.3d at 321 (noting that with regard to the
one claim and three sub-claims the Court denied based on lack of prejudice,
the “claims [were] independent factually and legally, with no reasonable and
logical connection that would have caused the jury to assess them
cumulatively”). Accordingly, Appellant is entitled to no relief on his final claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2020
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