Com. v. Copper, T. ( 2018 )

J-S37012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREESE COPPER :
:
Appellant : No. 1926 EDA 2017
Appeal from the PCRA Order May 25, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007129-2009
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 06, 2018
Appellant, Tyreese Copper, appeals from the order entered on May 25,
2017, dismissing his first petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court summarized the facts of this case as follows:
On February 18, 2009, at approximately 8:00 p.m., Reginald
James and Davina Sparks left Mr. James's home at 5611 Stokes
Street to pick up snacks for Mr. James's younger siblings at the
corner grocery store. After buying the snacks, Mr. James and Ms.
Sparks headed back to Mr. James's house. As the two sat in Ms.
Sparks's car, along with her two-year old daughter, a black male
approached the passenger side of the car and tried to open it. Ms.
Sparks was concerned because she did not know him, but Mr.
James said that he knew him, and got out of the car. As Mr. James
got out of the car and began to walk towards the man, another
black male appeared from behind a van, and Mr. James turned
around and began to run away from both men. He was in front of
Ms. Sparks's car when he was shot multiple times.
Ms. Sparks drove herself and her daughter away from the scene,
before encountering police a few blocks away. She immediately
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* Former Justice specially assigned to the Superior Court.
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jumped out of her car and alerted Philadelphia Police Officer
Robert Nesmith that her boyfriend had just been shot by two black
males on Stokes Street. Officer Nesmith put out a radio call that
a shooting had taken place, to which Officer Christopher Mulderrig
and his partner responded. When they arrived at 5611 Stokes
Street, Officer Mulderrig and his partner loaded Mr. James into the
back of their police car. They then drove Mr. James to Einstein
Hospital, where he was pronounced dead. He had been shot a total
of nine times, sustaining gunshot wounds to his chest, back,
stomach, thigh, arm, and hand.
Officer Nesmith and his partner drove Ms. Sparks around the area
in an attempt to locate the shooters. Ms. Sparks identified one
man on the street as being the person who had attempted to open
her car door. This man, George Spain, was taken into custody and
gave a statement to police that night.
On February 19, 2009, based on Mr. Spain's statement, detectives
brought a juvenile, [S.K.], into the police station to be
interviewed. [S.K.] told police that in mid-February, four or five
nights before Mr. James's murder, [S.K.] had stolen a safe out of
[Appellant's] basement. He told police that he and his Uncle Tony
then brought the safe to Mr. James's basement because they knew
he would have the tools to get it open. [S.K.], Mr. James, and
“Uncle Tony” got the safe open and split the money they found
inside, which was approximately fifteen hundred dollars. [S.K.]
told police that word quickly spread around the neighborhood that
he had stolen [Appellant's] safe.
On February 19, 2009, police showed Ms. Sparks a photo array
that contained [Appellant's] photograph. She identified
[Appellant] as the man who'd appeared from behind the van and
shot Mr. James. A warrant was issued for [Appellant's] arrest, and
he was ultimately arrested on April 21, 2009.
Trial Court Opinion, 2/23/2012, at 2–4 (record citations and footnotes
omitted).
On September 22, 2011, a jury convicted Appellant of first-degree
murder and the trial court sentenced Appellant to life imprisonment. This
Court affirmed Appellant’s judgment of sentence on July 12, 2013. See
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Commonwealth v. Copper, 2013 WL 11261346 (Pa. Super. 2013)
(unpublished memorandum). Our Supreme Court denied further review on
April 30, 2014. See Commonwealth v. Copper, 82 A.3d 1063 (Pa. 2014).
On March 13, 2015, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel to represent Appellant on October 8, 2015. At
Appellant’s request, on January 28, 2016, the PCRA court allowed Appellant
to proceed pro se after conducting a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998) (“When the waiver of the right to counsel is
sought during PCRA review, an on-the-record determination should be made
that the waiver is knowing, intelligent, and voluntary.”). Thereafter, Appellant
filed pro se amended PCRA petitions on May 31, 2016 and August 8, 2016.
On March 10, 2017, the PCRA court issued notice of its intent to dismiss the
PCRA petition pursuant to Pa.R.Crim.P. 907. On March 31, 2017, Appellant
filed a pro se response to the PCRA court’s Rule 907 notice. The PCRA court
denied Appellant PCRA relief by order entered on May 25, 2017. This timely
appeal resulted.1
Appellant claims the PCRA court erred or abused its discretion in
dismissing his PCRA petition without an evidentiary hearing, claiming trial
counsel was ineffective by:
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1 Appellant filed a pro se notice of appeal on June 3, 2017. On June 8, 2018,
the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on June 13, 2017. The PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on September 12, 2017.
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1) Failing to raise a Confrontation Clause objection to the testimony
of medical examiner Dr. Edward Lieberman;
2) Failing to object to the [trial c]ourt’s clearing of the courtroom
during the testimony of Davina Sparks;
3) Failing to hire an expert in identification;
4) Failing to investigate facts favorable to [Appellant] and failing to
investigate witness Davina Sparks;
5) Failing to object when the Commonwealth stated during closing
arguments that Gregory Anderson was the second shooter and
vouched for witness Davina Sparks;
6) Failing to object to the Commonwealth’s closing arguments;
7) Failing to investigate the motive of Gregory Anderson for
identifying [Appellant] as the shooter;
8) Failing to impeach the Commonwealth’s ballistics expert and hire
a ballistics expert on behalf of [Appellant];
9) Failing to make a more specific objection to the [trial c]ourt’s
instruction on conspiratorial and accomplice liability;
PCRA Court Opinion, 9/12/2017, at 2.2 Finally, Appellant claims that the PCRA
court abused its discretion by declining to hold an evidentiary hearing.
Appellant’s Brief at 37-38.
“We must determine whether the PCRA court's ruling is supported by
the record and free of legal error.” Commonwealth v. Johnson, 179 A.3d
1153, 1156 (Pa. Super. 2018). Our standard of review when considering a
claim of counsel ineffectiveness is as follows:
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2 We have reordered the issues for ease of discussion. The issues we address
are taken from the PCRA court opinion as Appellant did not set forth the
precise issues raised in his brief.
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The law presumes counsel has rendered effective assistance. The
burden of demonstrating ineffectiveness rests on Appellant. To
satisfy this burden, Appellant must plead and prove by a
preponderance of the evidence that: (1) his underlying claim is of
arguable merit; (2) the particular course of conduct pursued
by counsel did not have some reasonable basis designed to
effectuate his interests; and, (3) but for counsel's ineffectiveness,
there is a reasonable probability that the outcome of the
challenged proceeding would have been different. Failure to
satisfy any prong of the test will result in rejection of the
appellant's ineffective assistance of counsel claim.
Id. at 1158 (internal citations and quotations omitted).
First, we address Appellant’s contention that trial counsel was ineffective
for failing to object to the testimony of Dr. Edwin Lieberman regarding the
manner and cause of the victim’s death. Appellant’s Brief at 9-11. Appellant
contends that such failure was in violation of the Confrontation Clause because
Dr. Lieberman did not personally conduct the autopsy and, instead, relied on
the findings of Dr. Bennett G. Preston. Id.
Here, the PCRA court determined that after Dr. Preston retired, Dr.
Lieberman independently reviewed the autopsy photos and various medical
reports in formulating his own opinion regarding the victim’s death. PCRA
Court Opinion, 9/12/2017, at 6. Thus, the PCRA court found “there were no
grounds upon which defense counsel could have properly objected to Dr.
Lieberman’s testimony.” Id.
Our Supreme Court recently decided Commonwealth v. Brown, 185
A.3d 316 (Pa. 2018). Therein, the Commonwealth admitted an autopsy report
into evidence authored by a medical examiner who was no longer employed
by the Medical Examiner’s Office and was not called at trial. Brown, 185 A.3d
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at 318. Instead, the Commonwealth called another medical examiner from
“the Philadelphia Medical Examiner's Office, who had not been present at the
autopsy, to provide expert testimony based on portions of the autopsy report
as well as autopsy photographs.” Id. at 318–319. The Brown Court
determined that an autopsy report is “testimonial in nature, and its admission
into evidence without [the testimony of the doctor who performed the
autopsy], and in the absence of any prior opportunity to cross-examine [that
doctor], violate[s a defendant’s] constitutional right to confront the witnesses
against him.” Id. at 333. Our Supreme Court, however, ultimately concluded
that the error in admitting the autopsy report was harmless where the
testifying, substitute medical examiner “formed an independent conclusion
and testified to [his] conclusion based on his own review of both the otherwise
inadmissible facts and data contained in the report and the data provided by
the autopsy photographs.” Id. at 332. Thus, “[b]ecause [the testifying
medical examiner] properly formed an independent opinion, and was available
to be cross-examined regarding the basis of that opinion, [our Supreme Court]
conclude[d] there was no Confrontation Clause violation with respect to his
opinion regarding the cause of death.” Id. The Brown Court further found
that, “[e]ach case involving this particular challenge to the Confrontation
Clause must be based on its unique circumstances, as different facts regarding
the nature of the opinion offered and the type of data relied upon by the
testifying witness could result in a finding of prohibited surrogacy.” Id. at
333.
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In this case, the factual scenario is substantially similar Brown. Dr.
Preston, the original examiner who performed the autopsy and took forensic
photographs, had retired. N.T., 9/20/2011, at 61-62. Dr. Lieberman used
the information contained in Dr. Preston’s autopsy report and the photographs
taken to reach his own conclusions regarding the cause and manner of death.
Id. at 63-79. Moreover, here, unlike in Brown, Dr. Preston’s report was not
admitted into evidence. Accordingly, Dr. Lieberman’s opinion regarding the
manner and cause of the victim’s death was properly admitted, because it was
independent of Dr. Preston’s findings and Appellant had the ability to
cross-examine Dr. Lieberman regarding his opinion. As such, there is no merit
to Appellant’s claim of counsel ineffectiveness regarding Dr. Lieberman’s
testimony.
We turn now to issues two through six as set forth above, which relate
to trial counsel’s effectiveness with regard to eyewitness, Davina Sparks.
First, Appellant claims trial counsel was ineffective for failing to object when
the trial court cleared the courtroom during Ms. Sparks testimony which he
avers was in violation of his right to a public trial. Appellant’s Brief at 12-15.
We have previously determined:
[T]he right to a public trial is not absolute; rather, it must be
considered in relationship to other important interests. In
considering such other interests, a court must assess all of the
circumstances to determine if they present a situation in which an
exclusion order is necessary. If the court determines a necessity
exists, it may then issue an exclusion order; but the exclusion
order must be fashioned to effectuate protection of the important
interest without unduly infringing upon the accused's right to a
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public trial either through its scope or duration. Ultimately, the
determination of whether to exclude spectators, as well as the
determination of the scope and duration of an exclusion order,
must be left to the sound discretion of the trial court because it
alone is sufficiently close to the circumstances to apprehend fully
the subtleties that may be present. Thus, only if a trial court
abused its discretion in issuing an exclusion order or in fashioning
the order will reversible error be found on appeal. Therefore, we
must determine: (1) whether the court abused its discretion in
issuing the exclusion order; and (2) if it did not, whether it abused
its discretion in fashioning the scope and duration of the order.
Commonwealth v. Conde, 822 A.2d 45, 49 (Pa. Super. 2003) (internal
citation and footnotes omitted). We have permitted exclusion orders for “the
protection of a witness from embarrassment or emotional disturbance.” Id.
Moreover, “an exclusion order which is designed to protect a witness from
emotional trauma will not necessarily be constitutionally infirm if it excludes
the entire public for a limited time.” Id.
Based upon the foregoing, we discern no abuse of discretion in excluding
spectators from the courtroom while Ms. Sparks testified. In this case, the
PCRA court determined that the jury, in making its credibility determinations,
needed to see Ms. Sparks face while she testified. N.T., 11/21/2011, at 59-
60. However, because of her Muslim faith, Ms. Sparks wished to keep her face
covered. Id. at 54-55. As such, in striking a balance between Appellant’s
right to a public trial and the need to respect the witness’ religious beliefs, the
trial court cleared the courtroom, but only for the duration of Ms. Sparks’
testimony. Id. at 62-65. The exclusion was limited in duration to protect the
witness from emotional disturbance, as well as to protect Appellant’s right to
confront her and to allow the jury to make effective credibility determinations.
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As such, there is no merit to Appellant’s contention that trial counsel was
ineffective for failing to object to the trial court’s exclusion of spectators.
Next, Appellant argues that Ms. Sparks’ identification of Appellant as the
shooter was unreliable and that trial counsel was ineffective for failing to seek
suppression. Id. at 15-23. More specifically, Appellant acknowledges our
Supreme Court’s decision in Commonwealth v. Walker, 92 A.3d 766 (Pa.
2014), which post-dated his trial, but overturned long-standing precedent and
currently allows defense counsel to utilize an identification expert. Id. at 20.
Appellant, however, maintains “that counsel should have retained an expert
witness to challenge the reliability and accuracy of Davina Sparks’
identification of [] Appellant as the shooter.” Id. Appellant also maintains
that trial counsel was ineffective for failing to object to Ms. Sparks’
identification testimony.3 Id. at 15.
At the time of Appellant’s trial, however, Pennsylvania law barred the
use of expert testimony to aid a jury in understanding eyewitness
identifications. Our Supreme Court, however, changed tack in 2014 when it
decided “that such expert testimony on the limited issue of eyewitness
identification [] may be admissible, at the discretion of the trial court, []
assuming the expert is qualified, the proffered testimony relevant, and will
assist the trier of fact.” Commonwealth v. Walker, 92 A.3d 766, 792 (Pa.
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3 Appellant failed to raise this discrete issue in his concise statement of errors
complained of on appeal and, thus, has waived this aspect of his current claim.
See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the [Rule 1925(b)]
Statement […] are waived.”).
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2014). Trial counsel, however, cannot be deemed ineffective for failing
to anticipate a change in law in this Commonwealth. See Commonwealth
v. Hannibal, 156 A.3d 197, 231–232 (Pa. 2016). As such, we agree that no
relief is due.
Appellant also contends that trial counsel was ineffective for failing to
object to the Commonwealth’s closing argument wherein it vouched for Ms.
Sparks’ character by opining that she “suffered trauma when she saw her
boyfriend shot and killed.” Appellant’s Brief at 24.
When a prosecutor’s closing argument constitutes a fair response to a
defense argument or is based upon the evidence presented at trial, defense
counsel has no obligation to object and a related claim of trial counsel
effectiveness has no merit. See Commonwealth v. Carson, 913 A.2d 220,
240 (Pa. 2006). Here, the PCRA court recognized:
It is true that the prosecutor did make remarks about Ms. Sparks
being traumatized in an attempt to explain why Ms. Sparks had
initially identified someone else as the shooter on the night of the
shooting. This argument, however, was entirely proper. The
evidence presented at trial showed that [Ms.] Sparks was in a car
along with her daughter and the decedent immediately before the
shooting. She witnessed the decedent, who was her friend, being
shot and killed after getting out of the car and being chased by
two men. The decedent was right in front of the car, where [Ms.]
Sparks still sat with her daughter, when the killing occurred.
These were obviously traumatic events. Accordingly, the
prosecutor’s arguments regarding [Ms.] Sparks were [] well
supported by the evidence. As such, trial counsel had no basis
upon which to object.
PCRA Court Opinion, 9/12/2017, at 10. Upon review, we agree. There is no
dispute that Ms. Sparks personally witnessed the shooting from close range
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and the facts support the Commonwealth’s suggestion that she was
traumatized as a result.
Moreover, the failure to object to closing arguments does not prejudice
a defendant or amount to counsel ineffectiveness where the trial court
properly instructs a jury that closing arguments are not evidence, that the
jury is the sole judge of facts to be determined by the evidence, and that the
Commonwealth has the burden of proving its case beyond a reasonable doubt.
See Commonwealth v. Jones, 811 A.2d 1057, 1063 (Pa. Super. 2002).
Here, the trial court gave the jury all of those instructions. See N.T.,
11/22/2011, at 67-68 and 71. “[J]urors are presumed to follow the court’s
instructions.” Commonwealth v. Aikens, 168 A.3d 137, 143 (Pa. 2017) For
this additional reason, Appellant’s claim that counsel was ineffective for failing
to object to the Commonwealth’s closing argument fails.
Finally, with regard to Ms. Sparks, Appellant maintains trial counsel was
ineffective for failing to investigate additional facts about her. Id. at 35-37.
He claims that Ms. Sparks asked that her husband be permitted to remain in
the courtroom for her testimony, but “Ms. Sparks is not legally married and
she has no marriage license.” Id. at 35. Appellant asserts that if trial counsel
had properly investigated, he “could have impeached her before the jury and
the trial court.” Id. Appellant further claims that trial counsel “failed to
investigate the male that was identified by Ms. Sparks as the shooter on the
night of the shooting” when she subsequently identified Appellant from a
police photo array. Id. at 36.
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On this aspect of Appellant’s ineffective assistance of counsel claim, the
PCRA court noted:
[Appellant] failed to proffer any evidence that [Ms.] Sparks was
not married to the man who she identified as her husband.
Moreover, there is nothing in the record to suggest that the
outcome of the trial would have been different if trial counsel had
discovered that the man Sparks identified as her husband was not
legally married to her.
As to the individual who [Ms.] Sparks misidentified as the shooter,
[Appellant] failed to proffer any evidence suggesting that any
investigation would have uncovered evidence that could have
affected the outcome of the trial. No relief is due.
PCRA Court Opinion, 9/12/2017, at 13.
We agree with the trial court’s assessment. Appellant has the burden
to plead and prove he is entitled to relief under the PCRA. Moreover, our
Supreme Court has stated:
Counsel has a general duty to undertake reasonable investigations
or make reasonable decisions that render particular investigations
unnecessary. Counsel's strategic choices made after less than a
complete investigation are considered reasonable, on a claim of
ineffective assistance, precisely to the extent that reasonable
professional judgments support limitations on the
investigation. Failure to conduct a more intensive investigation,
in the absence of any indication that such investigation would
develop more than was already known, is simply not
ineffectiveness.
Commonwealth v. Eichinger, 108 A.3d 821, 847 (Pa. 2014) (internal
citations omitted). Appellant has failed to proffer any additional exculpatory
evidence that trial counsel should have presented or could have uncovered.
Appellant’s allegations are purely speculative and the PCRA court properly
determined that Appellant failed to show he was prejudiced or that the
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outcome of trial would have somehow been different had trial counsel
investigated additional facts about Ms. Sparks or the man she identified as the
perpetrator immediately after the shooting.
Next, we address three inter-related claims of ineffective assistance of
counsel with regard to Appellant’s father and Commonwealth witness, Gregory
Anderson. Generally, Appellant contends that trial counsel was ineffective
for failing to refute the Commonwealth’s theory that Anderson was the second
shooter. Appellant’s Brief at 23.
In his seventh issue presented, Appellant claims that trial counsel was
ineffective for failing to investigate Anderson’s motive “to give false police
statements incriminating [] Appellant in the [] shooting.” Appellant’s Brief at
29. On this issue, the PCRA court recognized that, at trial, “Anderson recanted
the majority of his statement [made to police] and testified that he did not
tell police that he witnessed the shooting and did not identify [Appellant] as
the shooter.” PCRA Court Opinion, 9/12/2017, at 10. Accordingly, the PCRA
court determined that “had trial counsel presented evidence of Anderson’s
motive in identifying [Appellant] as the shooter, it would have undermined
Anderson’s testimony that he had not identified [Appellant] as the shooter.”
Id. at 11. Upon review, we agree with the PCRA court’s assessment. At trial,
Anderson completely recanted the statements he made to police. As such,
any evidence of Anderson’s motive, in giving a statement that he later
repudiated, would have been needlessly redundant. Hence, there is no merit
to Appellant’s claim. Moreover, Appellant fails to show trial counsel’s chosen
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strategy lacked a reasonable basis or how he was prejudiced. The jury was
already confronted with Anderson’s inconsistent positions. We reject
Appellant’s suggestion that trial counsel should have impeached Anderson
more so than his own inconsistent positions.
In his eighth issue presented, Appellant contends that trial counsel was
ineffective for failing to retain a firearms expert to refute the Commonwealth’s
“expert [who] stated that two separate guns were used to fire the bullets into
the decedent” because .38 caliber and .357 caliber projectiles were recovered
from the decedent. Appellant’s Brief at 32. On this issue, Appellant claims in
sum:
a .357 caliber handgun can and will fire a .38 caliber bullet as well
as a .357 bullet. This is an absolute fact and is documented in the
FBI Shooters Bible. Any “real” firearms expert knows this as fact.
So the Commonwealth expert was wrong and trial counsel could
have impeached him but because [] trial counsel was not
knowledgeable in firearms he had no info[rmation] to impeach the
Commonwealth witness with.
Id. at 32.
Appellant, however, does not support his contention with any proof to
support his bald contention and, therefore, has not met his burden under the
PCRA. Bald, undeveloped allegations do not satisfy a petitioner's initial burden
to plead and prove that he is entitled to PCRA relief. See 42 Pa.C.S.A.
§9543(a); Commonwealth v. Cousar, 154 A.3d 287, 299 (Pa. 2017) (“[I]t
is not enough to take a cold record, state alternative choices counsel could
have made, and then declare an entitlement to relief[; m]ere conclusory
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allegations [in a PCRA petition,] are insufficient to establish entitlement to
relief.”). Here, Appellant’s claim that a .357 caliber firearm will fire two
different caliber bullets is wholly unsupported. While Appellant alleges that
there is documentary proof in the “FBI Shooters Bible,” he has not presented
it. Even if true, Appellant fails to explain how the record supports his
contention that the same firearm fired two bullets of different calibers in the
same shooting incident. At trial, the Commonwealth’s firearm expert opined
that the physical evidence showed two firearms were used based upon an
examination of distinct, microscopic “land and groove” markings on two
different bullets that were recovered. N.T., 11/20/2011, at 277-278. The
expert testified that he was scientifically certain that at least two different
firearms were used in this shooting. Id. at 278-279. He unequivocally stated,
“[T]here’s no way [the different bullets] could have been fired from the same
firearm.” Id. at 278.
To the extent that Appellant claims that a firearm expert could have
refuted the Commonwealth’s expert, Appellant has not proffered such an
expert. “It is axiomatic that when a PCRA petitioner claims counsel was
ineffective for failing to call a witness, he or she must establish (1)
the witness existed; (2) the witness was available to testify for the defense;
(3) counsel knew of, or should have known of, the existence of the witness;
(4) the witness was willing to testify for the defense; and (5) the absence of
the testimony of the witness was so prejudicial as to have denied the
defendant a fair trial.” Commonwealth v. Goodmond, 2018 WL 2996061,
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at *4 (Pa. Super. 2018). Accordingly, Appellant’s bald claim of ineffective
assistance of counsel lacks merit.
Next, Appellant claims that trial counsel was ineffective for failing to
object to the Commonwealth’s closing argument wherein the Commonwealth
suggested that Anderson was the second shooter, despite the fact that
Anderson was never charged in this case. Appellant’s Brief at 23. As
previously noted, the trial court instructed the jury that closing arguments
were not evidence, that the jury was the sole judge of facts to be determined
by the evidence, and that the Commonwealth had the burden of proving its
case beyond a reasonable doubt. See N.T., 11/22/2011, at 67-68, 71. As
such, we presume the jury followed the trial court’s instructions and,
therefore, we find no merit to Appellant’s ineffectiveness claim as presented.
See Commonwealth v. Jones, 811 A.2d at 1063.
Appellant also claims that, “trial counsel was ineffective for failing to
make a more specific objection to the trial court’s jury instruction on [the]
conspiratorial and accomplice charge.” Appellant’s Brief at 33 (complete
capitalization omitted). Appellant acknowledges that trial counsel objected to
the proffered jury instruction, but claims “this jury charge, in which Appellant
was made liable as an actor in a conspiracy, and/or as an accomplice in the
shooting and killing of the decedent, when Appellant was never charged with
either[,] violated due process and prejudiced Appellant by denying him a fair
trial.” Id. at 34. Here, Appellant concedes that trial counsel objected to the
jury charge. Upon our review of the record, counsel did object to “the
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instructions with regards to liability for conspiratorial conduct.” N.T.,
11/22/2011, at 20. As a result, PCRA court opined that, “[t]rial counsel cannot
be ineffective for failing to make an objection that he did, in fact, make.” PCRA
Court Opinion, 9/12/2017, at 7. Moreover, the PCRA court determined that
there “was nothing in the record to suggest that a ‘more specific objection’
would have resulted in the [trial c]ourt declining to give the instruction.” Id.
Upon review, we agree that there is no merit to this claim. Appellant
does not suggest how a more strenuous objection would have yielded a
different result. Moreover, to the extent that Appellant suggests trial court
error in permitting the instruction, this claim was litigated on direct appeal
and a prior panel of our Court found it waived for failure to cite to the record
or legal authority. See Commonwealth v. Copper, 2013 WL 11261346, at
*6 (Pa. Super. 2013) (unpublished memorandum). Appellant still fails to cite
authority to this Court for his bald proposition. Moreover, Appellant does not
argue that direct appeal counsel was ineffective for failing to support his direct
appeal with legal and record citations. As such, we agree with the PCRA court
that Appellant’s claim must fail. For all of the foregoing reasons, we conclude
that Appellant was not entitled to relief under the PCRA.
Finally, with regard to Appellant’s claim that the PCRA court abused its
discretion in dismissing his PCRA petition without an evidentiary hearing, we
have previously determined:
There is no absolute right to an evidentiary hearing on
a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing
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is not necessary. With respect to the PCRA court's decision to
deny a request for an evidentiary hearing, or to hold a
limited evidentiary hearing, such a decision is within the discretion
of the PCRA court and will not be overturned absent an abuse of
discretion.
Commonwealth v. McGarry, 172 A.3d 60, 70 (Pa. Super. 2017) (internal
citations and quotations omitted). Having determined that there was no merit
to any of Appellant’s contentions, we discern no abuse of discretion by the
PCRA court in denying an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/18
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