J-S18045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

XAVIER BRASWELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3091 EDA 2022

Appeal from the PCRA Order Entered November 10, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008185-2016

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 1, 2023

Appellant, Xavier Braswell, appeals from the order entered in the Court 

of Common Pleas of Philadelphia County, which denied his first petition filed 

under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, 

following an evidentiary hearing. After a careful review, we affirm.

The relevant facts and procedural history are as follows: Appellant was 

arrested in connection with the murder of Shelton Merritt, and represented by 

counsel, he proceeded to a jury trial, which resulted in a mistrial on November 

3, 2017, when the jury failed to render a unanimous verdict. On May 14, 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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2018, Appellant, represented by counsel,1 appeared for a jury retrial. The 

trial court summarized the testimony presented at the retrial as follows:

At about 11:45 p.m., on July 24, 2016, [Appellant], his 

cousin Alex Rice (“Rice”), his friend Robert Renfro (“Renfro”), 

Rice’s sister Shadele Rice (“Shadele”), and a woman identified as 

“Lee Lee” entered the River Deck club on 417 North Columbus 

Boulevard in Philadelphia. Around the same time, a separate 

group of people including the decedent Shelton Merritt (“the 

decedent”), his friends Zachary Gorczynski (“Gorczynski”) and 

Jonathan Jones (known as “Jalil”), and two other males arrived at 

the River Deck club. The latter group was not permitted to enter 

because two of its members were wearing T-shirts, so they 

continued to stand outside in line. N.T., 5/14/18, at 117-20; N.T., 

5/15/18, at 179-89. 

Inside the club, Renfro became involved in a fight and was 

kicked at and punched by multiple people. After the fight, Renfro 

told [Appellant] that he had been assaulted and pointed out the 

group of people who had done it. Soon after, Shadele approached 

Renfro and told him that Rice was involved in a fight outside the 

club. On his way out, Renfro observed [Appellant] in a fight with 

the same group of people with whom he had fought. Outside the 

club, Renfro saw the decedent and numerous other people 

assaulting Rice, with one individual hitting Rice with a bottle, 

which caused him to fall to the ground. N.T., 5/14/18, at 120; 

N.T., 5/15/18, at 112-21. 

After the altercation with Rice, the decedent and his friends 

left the club and walked towards their car, a Ford Explorer SUV 

parked on the north side of Callowhill Street, near the intersection 

of Christopher Columbus Boulevard and about two blocks away 

from the River Deck. The group got into the vehicle, with the 

decedent seated in the back row. Shortly thereafter, [Appellant], 

Rice, and Renfro approached the vehicle. Rice and Renfro 

approached the driver’s side, where they confronted Jones. 

[Appellant] approached the passenger’s side of the vehicle, and 

Gorczynski exited the front passenger’s seat to speak with him. 

[Appellant] asked Gorczynski to identify the person who had 

____________________________________________

1 At the jury retrial, Appellant was represented by Joseph Green, II, Esquire, 

who was lead defense counsel, and W. Fred Harrison, Esquire, who was cocounsel.
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knocked out Rice, then drew a 9-millimeter semi-automatic 

handgun and pointed it at Gorczynki. [Appellant] pulled the 

trigger but the gun failed to fire. Gorczynski ran and told the group 

in the SUV that [Appellant] had a gun. The group exited the SUV, 

but the decedent, who was seated in the back row, was unable to 

escape the vehicle. [Appellant] fired nine times into the SUV, 

fatally shooting the decedent. N.T., 5/14/18, at 123-30; N.T., 

5/16/18, at 229, 239; N.T., 5/17/18, at 238-39. 

After the shooting, [Appellant] fled towards a nearby 

parking lot, pursued by Gorczynski and others. There, Gorczynski 

observed [Appellant] throw an object into the water. The object 

was never recovered. N.T., 5/14/18, at 123-30; N.T., 5/16/18, 

at 229, 239; N.T., 5/17/18, at 238-39.

At 11:45 p.m., Philadelphia Police Sergeant David DeCrosta 

responded to a priority radio call reporting gunshots. Upon 

arriving at the scene, he discovered the decedent lying with his 

torso outside of the SUV and his legs inside. Sergeant DeCrosta 

observed that the decedent had suffered a gunshot wound to the 

head and was bleeding heavily. He immediately placed the 

decedent into his patrol car and drove to Hahnemann University 

Hospital, where the decedent was pronounced dead at 12:07 a.m. 

N.T., 5/16/18, at 7-18.

Dr. Lindsay Simon, Associate Medical Examiner for the City 

of Philadelphia, performed the autopsy of the decedent. Dr. 

Simon concluded that the decedent had suffered one gunshot 

wound to the top of his head, five gunshot wounds to the back, 

and one gunshot wound to the right side of his neck. All of the 

gunshots were fired from an indeterminate range. The decedent 

also suffered abrasions on his arm caused by broken glass, as well 

as abrasions on his neck, right thigh, and the front of his right 

knee. There were no visible defensive wounds. Dr. Simon 

determined that the manner of death was homicide caused by 

multiple gunshot wounds. N.T., 5/14/18, at 63-95. 

Around 11:45 p.m., Lieutenant Sean Dandridge of the 

Philadelphia Police Department arrived at the River Deck club in 

response to the fight, and he held a brief conversation with the 

manager outside the club. Lieutenant Dandridge then heard eight 

or nine shots in rapid succession. He got into his patrol vehicle 

and drove to a nearby parking lot where an unknown Latino male 

on a dirt bike stopped him, pointed towards [Appellant], and 

shouted, “He just shot my boy.” Lieutenant Dandridge spotted 

[Appellant] running. [Appellant] ignored Lieutenant Dandridge’s 
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commands to get on the ground for eight to ten seconds before 

complying. While Lieutenant Dandridge waited for backup to 

arrive, six males ran up from behind him, converged on 

[Appellant], and began punching and kicking him. Approximately 

thirty seconds later, more police cars arrived, and the other males 

fled. Lieutenant Dandridge and the other officers detained 

[Appellant], as well as Rice and Renfro, who were nearby, and 

transported them to the homicide unit at the Police Administration 

Building. N.T., 5/17/18, at 147-56. 

At the homicide unit, Detective James Pitts interviewed 

Renfro, who identified [Appellant] as the shooter. Detectives 

Scally and Peterman interviewed Rice, who told them that 

[Appellant] was the only person standing by the SUV during the 

shooting. N.T., 5/15/18, at 145-48; N.T., 5/16/18, at 139-57.

In the early morning on July 25, 2016, [several officers, 

including] Officer Clyde Frasier of the Crime Scene Unit, arrived 

on the scene. Officer Frasier observed and photographed nine 9-

millimeter fired cartridge casings (“FCCs”), as well as two bullet 

projectile fragments, blood stains, and shattered glass on the 

sidewalk near the SUV. Officer Frasier submitted the FCCs and 

projectiles to the Firearms Identification Unit. Ballistician Norman 

DeFields received the ballistic evidence and identified all nine FCCs 

as 9-millimeters, including eight Hornady Critical Defense Bullets, 

an expanding hollow-point type of bullet designed to create more 

damage. Officer DeFields determined that the ballistic evidence 

was consistent with someone shooting into the SUV. N.T., 

5/17/18, at 9-44, 238-52.

At trial, Renfro testified that he saw [Appellant] shooting 

into the SUV. Rice testified that he did not remember going into 

the River Deck club because he was drunk, and that he only 

remembered being assaulted outside, passing by the SUV, then 

hearing gunshots and running towards the club. He testified that 

he did not see [Appellant] at the SUV, but at the intersection of 

Callowhill and Christopher Columbus streets during the shooting. 

He testified that he did not remember giving a statement to the 

police. Rice’s testimony was impeached at trial by his police 

statement, as well as a video recording of his interview with 

detectives. N.T., 5/15/18, at 133-35; N.T., 5/16/18, at 132-88.

At trial, [Appellant] presented the testimony of Police 

Officers Patrick Greider and Gregory Neal, who came into contact

with Jones shortly after the incident. [Appellant] also called to the 

stand independent firearm and forensic consultant Frederick 
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Wentling, who testified that the more a gun is fired, the more 

gunshot residue it causes, and forensic scientist, Hung Le, who 

tested [Appellant’s] clothing and did not find any gunshot residue. 

Additionally, [Appellant] presented the testimony of Fatimot 

Adekanmbi, a member of the DNA laboratory within the City of 

Philadelphia’s Criminalistics Unit, who examined [Appellant’s]

clothes and did not find the decedent’s DNA. N.T., 5/18/18, at 6-

13, 26-28, 51, 98-103, 114-19. 

Trial Court Opinion, filed 8/6/18, at 2-5.

At the conclusion of all evidence, on May 21, 2018, the jury convicted 

Appellant of first-degree murder and related firearm offenses. See 18 

Pa.C.S.A. §§ 2502(a), 6108, and 907(a). On May 21, 2018, the trial court 

imposed the mandatory term of life in prison for first-degree murder, as well 

as a concurrent aggregate term of one year to two years in prison for the 

firearm offenses. Appellant filed timely post-sentence motions, which the trial 

court denied. 

Appellant filed a timely direct appeal to this Court presenting the 

following sole issue: “Did the trial court cause structural error by repeatedly 

interjecting its comments during witness testimony and chastising defense 

counsel in front of the jury, [and] deny Appellant a fair trial?” 

Commonwealth v. Braswell, No. 1893 EDA 2018, at *2 (Pa.Super. filed 

9/11/19) (unpublished memorandum). This Court found the issue to be 

waived and, in the alternative, found no merit to the claim. See id.

Accordingly, we affirmed Appellant’s judgment of sentence. See id. On March 

4, 2020, our Supreme Court denied Appellant’s petition for allowance of 
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appeal, and Appellant did not file a petition for a writ of certiorari with the 

United States Supreme Court.

On or about May 28, 2021, Appellant filed a timely, pro se PCRA 

petition,

2 and after Appellant filed a supplemental pro se PCRA petition, the 

PCRA court appointed counsel, who sought to withdraw. Appellant then 

retained private counsel, who filed a supplemental PCRA petition on behalf of 

Appellant on November 30, 2021. 

On March 15, 2022, the PCRA court provided Appellant with notice of its 

intent to dismiss the PCRA petition without a hearing; however, Appellant filed 

a response, and a supplemental response, in opposition thereto. On July 17, 

2022, the PCRA court held an evidentiary hearing, and on August 11, 2022, 

the parties filed post-hearing briefs. On August 13, 2022, Appellant filed a 

motion for a supplemental PCRA hearing, which the trial court granted, and

on September 9, 2022, the PCRA court held a supplemental evidentiary 

hearing.

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2 Appellant’s judgment of sentence became final on June 2, 2020, ninety days 

after our Supreme Court denied Appellant’s petition for allowance of appeal 

and the time to file a writ of certiorari with the United States Supreme Court 

expired. See U.S. Supreme Court Rule 13 (effective January 1, 1990) (stating 

that a petition for writ of certiorari to review a judgment of sentence is deemed 

timely when it is filed within 90 days). Thereafter, Appellant filed his PCRA 

petition on May 28, 2021, which is within one year of when his judgment of 

sentence became final. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly, 

Appellant’s first PCRA petition was timely filed. 
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By order entered on November 10, 2022, the PCRA court denied 

Appellant’s PCRA petition. The PCRA court filed an opinion in support of its 

order on November 14, 2022. This timely, counseled appeal followed on 

November 30, 2022. The PCRA court did not order Appellant to file a Pa.R.A.P. 

1925(b) statement, and consequently, no such statement was filed. 

On appeal, Appellant sets forth the following issues in his “Statement of 

Questions Presented” (verbatim):

I. Whether the PCRA court erred in finding trial counsel was 

not ineffective where trial counsel did not interview and call 

two alibi witnesses?

II. Whether the PCRA court erred in finding trial counsel was 

not ineffective for not filing a motion to suppress or 

otherwise exclude the prior statements and testimony of 

Robert Renfro and Alex Rice which were coerced by police 

with promises that they would not be charged with murder 

if they gave statements shifting blame for the murder to 

[Appellant]?

III. Whether the PCRA court erred in finding that trial counsel 

was not ineffective for failing to object to the prosecutor’s 

closing argument, which relied on a series of false 

misrepresentations in an effort to explain why there was no 

physical evidence implicating [Appellant] in the murder?

IV. Whether Appellant was convicted based on the knowing use 

of false testimony by the prosecution team?

Appellant’s Brief at 2 (unnecessary bold and capitalization omitted).

Initially, we note our standard of review for an order denying PCRA relief 

is limited to whether the record supports the PCRA court’s determination, and 

whether that decision is free of legal error. Commonwealth v. Sattazahn, 

597 Pa. 648, 952 A.2d 640, 652 (2008). “We must accord great deference to 
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the findings of the PCRA court, and such findings will not be disturbed unless 

they have no support in the record.” Commonwealth v. Scassera, 965 A.2d 

247, 249 (Pa.Super. 2009) (citation omitted).

As relevant here, a PCRA petitioner will be granted relief only when he 

proves, by a preponderance of the evidence, that his conviction or sentence 

resulted from the “[i]neffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken 

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). In reviewing Appellant’s ineffective 

assistance of counsel claims, we are mindful that, since there is a presumption 

counsel provided effective representation, the defendant bears the burden of 

proving ineffectiveness. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282 

(2010). 

To prevail on an ineffective assistance claim, a defendant must establish 

“(1) [the] 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 [client’s] interests; and (3) but for counsel’s ineffectiveness, 

there is a reasonable probability that the outcome of the proceedings would 

have been different.” Id. at 291 (citations omitted). 

We need not analyze the prongs of an ineffectiveness claim 

in any particular order. Rather, we may discuss first any prong 

that an appellant cannot satisfy under the prevailing law and the 

applicable facts and circumstances of the case. [C]ounsel cannot 

be deemed ineffective for failing to raise a meritless claim.
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Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(citations omitted). See Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d 

409, 419 (2009) (“A failure to satisfy any prong of the ineffectiveness test 

requires rejection of the claim of ineffectiveness.”) (citation omitted)). “A 

claim has arguable merit where the factual averments, if accurate, could 

establish cause for relief.” Commonwealth v. Stewart, 84 A.3d 701, 707 

(Pa.Super. 2013) (en banc) (citation omitted).

Regarding the reasonable basis prong of the ineffective assistance of 

counsel test, our Supreme Court has relevantly stated the following:

When assessing whether counsel had a reasonable basis for his 

act or omission, the question is not whether there were other 

courses of action that counsel could have taken, but whether 

counsel’s decision had any basis reasonably designed to effectuate 

his client’s interest....[T]his cannot be a hindsight evaluation of 

counsel’s performance, but requires an examination of “whether 

counsel made an informed choice, which at the time the decision 

was made reasonably could have been considered to advance and 

protect [the] defendant’s interests.” Our evaluation of counsel’s 

performance is “highly deferential.” 

Commonwealth v. Williams, 636 Pa. 105, 141 A.3d 440, 463 (2016) 

(citations and quotations omitted).

Further,

To demonstrate prejudice, the petitioner must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceedings would have 

been different. [A] reasonable probability is a probability that is 

sufficient to undermine confidence in the outcome of the 

proceeding.
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Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294, 311-12 (2014) (citations, 

quotation marks, and quotations omitted). See Commonwealth v. Gribble, 

580 Pa. 647, 863 A.2d 455, 472 (2004) (“[A] defendant [raising a claim of 

ineffective assistance of counsel] is required to show actual prejudice; that is, 

that counsel’s ineffectiveness was of such magnitude that it could have 

reasonably had an adverse effect on the outcome of the proceedings.”) 

(quotation omitted)).

In his first issue, Appellant claims trial counsel was ineffective in failing

to personally interview3 and call two potential alibi witnesses, Demetrius Tilley 

(“Tilley”) and Kyle Lloyd (“Lloyd”), to testify at trial. Appellant contends that, 

if called to testify, “[e]ach man [would have] confirmed that Appellant [was] 

with him on the date and time of the shooting.” Appellant’s brief at 15. 

Specifically, Appellant avers the two men would have testified they were 

standing with Appellant outside of the River Deck club at the time the shooting 

began, and Appellant did not have a gun. Id. at 15-16. The Commonwealth 

contends Appellant’s ineffectiveness claim fails because he voluntarily waived 

the right to call additional witnesses at trial. After a careful review, we agree.

____________________________________________

3 Appellant admits that, at the direction of trial counsel, the defense’s private 

investigator interviewed Tilley and Lloyd prior to trial; however, he contends 

trial counsel was ineffective in failing to personally interview the two men.

Appellant’s Brief at 15. 
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At Appellant’s jury trial, the following exchange occurred on-the-record 

between the trial court and Appellant at the conclusion of all evidence and 

before the attorneys’ closing statements:

THE COURT: Have you made a decision as to whether or not 

you wish to testify?

[APPELLANT]: No. Not yet, Your Honor.

THE COURT: Okay. Well, the other things that I’m going to 

do is when you come back [from lunch] I’m going to ask you 

whether or not anyone forced you, promised you anything in order 

for you to make your decision.

Before we take our lunch recess, do you have any questions 

about the right to testify, about your right to testify for me?

[APPELLANT]: No, Your Honor.

THE COURT: Are there any witnesses that you wanted 

your attorneys to call that they have not called?

[APPELLANT]: No.

THE COURT: All right. So, they’ve presented the case, 

the defense that you’ve asked them to present?

[APPELLANT]: Yes.

N.T., 5/18/18, at 152 (emphasis added).

4

In Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686 (2008), our 

Supreme Court held:

[A]n on-the-record colloquy is a useful procedural tool whenever 

the waiver of any significant right is at issue, constitutional or 

otherwise, e.g., waiver of a trial, waiver of the right to counsel, 

waiver of the right to call witnesses, waiver of the right to 

cross-examine witnesses, waiver of rules-based speedy trial time 

limits, etc.

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4 When the trial court returned from the lunch recess, Appellant waived his 

right to testify.
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Mallory, supra, 941 A.2d at 697 (emphasis added). 

Similarly, in Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294 

(2002), our Supreme Court recognized that “a defendant who makes a 

knowing, voluntary, and intelligent decision concerning trial strategy will not 

later be heard to complain that trial counsel was ineffective on the basis of 

that decision.” Paddy, supra, 800 A.2d at 316. To hold otherwise, the 

Supreme Court indicated, “would allow a defendant to build into his case a 

ready-made ineffectiveness claim to be raised in the event of an adverse 

verdict.” Id. In Paddy, the defendant complained of trial counsel’s 

ineffectiveness for failing to call alibi witnesses, in response to which our 

Supreme Court held that “this ineffectiveness claim fails for the fundamental 

reason that Paddy agreed at trial to his attorney’s decision not to call the 

witnesses in question.” Paddy, supra, 800 A.2d at 315. 

Subsequently, in Commonwealth v. Brown, 649 Pa. 293, 196 A.3d 

130 (2018), our Supreme Court was asked to determine whether an 

appellant’s trial counsel was ineffective in failing to present a witness at trial

to impeach another witness’s trial testimony. In concluding the appellant was 

not entitled to relief on the ineffectiveness claim, our Supreme Court noted

the following colloquy occurred during the appellant’s trial:

The Court: Now, sir, are there any witnesses that you wanted to 

call or anything that you discussed with [trial counsel] that is not 

going to happen at this trial? And I know that there's a few 

witnesses that are going to be called, and why don't we just state 

for the record who those are.
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[Trial Counsel]: Judge, I intend to call Police Officer Kevin Fant, FA-N-T, and Detective Gregory Rodden, R-O-D-D-E-N, who was the 

assigned detective in this case. And we may call the crime scene 

detective who did the crime scene, Detective David Baker and 

Detective George Fetters. Detective Fetters has not yet arrived. 

We've only interviewed Detective Baker.

The Court: Okay. So those are all the police witnesses. Were there 

any other names that you gave to [trial counsel] for the trial 

portion of this case, not the penalty phase, that you expected to 

testify and whose names just did not hear mentioned?

[Brown]: Negative.

The Court: All right. And are you satisfied with the representation 

that you have received from your counsel.

[Brown]: Yes.

Brown, supra, 196 A.3d at 173–74 (citation to record omitted).

Applying the reasoning of Mallory and Paddy, our Supreme Court held:

Brown asserts that trial counsel should have presented 

another witness, Akines-Harris, to impeach Anderson’s 

credibility.

***

As the record reflects, Brown participated in a colloquy at 

which he was advised of all of the witnesses his trial counsel 

intended to call in his defense, and he expressly acknowledged 

that after consulting with trial counsel, there were no other 

witnesses he wanted to testify on his behalf. As Brown voluntarily 

agreed that he did not want to call any other witnesses, he cannot 

now complain about trial counsel’s failure to call Akines-Harris to 

testify.

Brown, supra, 196 A.3d at 174. 

In the case sub judice, similar to as occurred in Brown, Appellant 

participated in a colloquy at trial in which he specifically confirmed there were 

no other witnesses he wanted his trial attorneys to call, and the defense 

presented the case, which Appellant wanted them to present. N.T., 5/18/18, 
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at 152. Since Appellant voluntarily agreed he was satisfied with the case 

presented by his attorneys, and there were no other witnesses he wanted his 

attorneys to call, he cannot now complain about his attorneys’ failure to 

investigate further and call Tilley or Lloyd to testify. Thus, Appellant is not 

entitled to relief on this claim. See Brown, supra. See also 

Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa.Super. 2000) (in 

rejecting claim trial counsel was ineffective in failing to investigate and call 

additional witnesses at trial, the court held the appellant voluntarily waived 

his right to call witnesses at trial during a colloquy, so he could not later claim 

ineffective assistance or purport he was coerced by counsel). 

In his next issue, Appellant claims trial counsel was ineffective in failing 

to file a motion seeking to suppress or otherwise exclude Renfro’s and Rice’s 

prior statements, as well as their testimony. Appellant avers the “testimony 

and statements of Renfro and Rice were tainted by police misconduct including 

promises of immunity from prosecution if they were willing to shift the blame 

to Appellant.” Appellant’s Brief at 24. Intertwined within this argument, 

Appellant claims trial counsel was ineffective in failing to ensure the jury was 

aware that detectives allegedly coerced Renfro’s and Rice’s statements, which 

implicated Appellant.

In concluding Appellant is not entitled to relief, the PCRA court relevantly 

indicated the following:

[Appellant] alleges that trial counsel was ineffective for 

failing to insist that the jury be informed that Renfro’s and Rice’s 
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testimony [and statements] were corrupted by police promises. 

This claim [is meritless] as the jury was informed of the police’s 

alleged promises to Renfro and Rice on cross-examination. Trial 

counsel conducted an extensive cross-examination of Renfro 

wherein he questioned Renfro about his statement to the police 

following the shooting and the circumstances surrounding his 

statements. Trial counsel questioned Renfro about his prior 

testimony at the preliminary hearing when he stated that police 

told him he would not be charged if he cooperated. At trial, Rice

claimed that he did not remember his statement to the police 

despite being shown his signed statement and a videotape of the 

interview. Detective Timothy Scally was called to testify regarding 

Rice’s statement, and he testified that no promises or threats were 

made to Rice to coerce his statement. The [trial] court also 

provided a jury instruction regarding witness credibility informing 

the jurors that they “may consider whether the witness had any 

potential bias or interest and whether the witness testified for the 

prosecution to gain favorable treatment in his own case.” N.T., 

5/16/18, at 37-40, 50-51, 152-53; N.T., 5/17/18, at 85; N.T., 

5/21/18, at 15. 

In his [next] claim, [Appellant] assert[s] that trial counsel 

was ineffective for failing to file a motion to suppress or exclude 

the statements of Renfro and Rice based on the alleged police 

coercion....The statements [of Renfro and Rice] were properly 

admitted at trial as a prior consistent statement for Renfro and a 

prior inconsistent statement for Rice, who claimed that he did not 

remember ever giving a statement to the police. Trial counsel 

cannot be found to be ineffective for failing to raise a baseless or 

frivolous claim. Since a motion to suppress or exclude would have 

been frivolous, trial counsel is not ineffective for failing to file it. 

[Appellant’s] ineffectiveness claim lacks arguable merit.

Even if this claim had arguable merit, it would still fail as 

[Appellant] has not demonstrated that there is a reasonable 

probability that the result of the proceedings would have been 

different if Renfro’s and Rice’s statements [and testimony] were 

suppressed or excluded....[Appellant] was...identified as the 

shooter by Gorczynski and Jonathon Jones (“Jones”) at trial. 

PCRA Court Opinion, filed 11/14/22, at 24-25.

We agree with the PCRA court’s sound reasoning. Regarding Appellant’s 

claim trial counsel was ineffective in failing to ensure the jury was aware of 
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alleged police coercion as it relates to Renfro and Rice, the record is clear the 

jury heard the circumstances surrounding Renfro’s and Rice’s statements.

Simply put, trial counsel extensively cross-examined Renfro and Rice about 

their police statements,5thus there is no merit to the underlying 

ineffectiveness claim. See Johnson, supra (holding trial counsel cannot be 

ineffective if underlying claim is meritless). 

Moreover, as it relates to Appellant’s claim trial counsel was ineffective 

in seeking to suppress or exclude the statements and testimony of Renfro and 

Rice based on alleged police coercion, we agree with the PCRA court there is 

____________________________________________

5 At trial, Renfro testified on direct examination by the Commonwealth that 

Appellant was the shooter. On cross-examination, trial counsel asked Renfro

whether the police told him that if he cooperated with the Commonwealth he 

would not be charged, and Renfro answered, “I don’t recall.” N.T., 5/16/18, 

at 37. Accordingly, trial counsel confronted Renfro with his preliminary 

hearing testimony in which Renfro testified the police told him that, if he 

cooperated, he would not be charged. Id. at 38-39. Renfro acknowledged he 

testified in such a manner at the preliminary hearing. Id. at 39-40. Renfro 

also admitted during cross-examination that he cooperated with the police 

because he didn’t want to be charged with a murder. Id.

At trial, Rice testified on direct examination by the Commonwealth that

he remembered hearing gunshots at the time in question, but he didn’t

remember anything else about the shooting. Id. at 137. He testified on direct 

that he did not remember talking to homicide detectives or making a 

statement, let alone a statement that incriminated Appellant. Id. at 138-39. 

When the Commonwealth confronted him with his police statement, which was 

inconsistent with his trial testimony, Rice testified he did not remember 

making the statement. Id. at 138-60. On cross-examination, trial counsel 

asked Rice about the shooting, and Rice indicated he had no memory of where 

Appellant was located during the shooting. Id. at 201. The Commonwealth 

then presented the testimony of Detective Scally, who testified he did not 

promise Rice anything or threaten him to give a statement. N.T., 5/17/18, at 

85. 
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no merit to the underlying claim. Simply put, Appellant did not meet his 

burden of demonstrating Renfro and Rice were “coerced” by the police, and 

there was no basis for trial counsel to seek exclusion of their statements or 

testimony on this basis. See id. 

Additionally, we agree with the trial court that, assuming, arguendo, 

there is arguable merit to Appellant’s claim, he failed to demonstrate 

prejudice. Given the overwhelming evidence of Appellant’s guilt, including the 

eyewitness testimony of Gorczynski and Jones, who identified Appellant as the 

shooter, Appellant has not demonstrated that “but for counsel’s unprofessional 

errors, the result of the proceedings would have been different.” Spotz, 

supra, 84 A.3d at 311-12 (citations, quotation marks, and quotations 

omitted). 

In his next issue, Appellant contends trial counsel was ineffective in 

failing to object to statements made by the prosecutor during closing 

argument. Appellant avers the prosecutor improperly made false statements

to explain why there was no physical evidence implicating Appellant in the 

murder. He concludes these false statements were highly prejudicial.

We analyze Appellant’s underlying claim with the following relevant legal 

precepts in mind:

In accord with the long-standing principle that a “prosecutor 

must be free to present his or her arguments with logical force 

and vigor,” this Court has permitted prosecutorial advocacy “as 

long as there is a reasonable basis in the record for the 

[prosecutor’s] comments.” Commonwealth v. Robinson, 581 

Pa. 154, 864 A.2d 460, 516–17 (2004). Prosecutorial comments 
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based on the evidence or reasonable inferences therefrom are not 

objectionable, nor are comments that merely constitute oratorical 

flair. Furthermore, the prosecution must be permitted to respond 

to defense counsel’s arguments. Id. Any challenged prosecutorial 

comment must not be viewed in isolation, but rather must be 

considered in the context in which it was offered. Robinson,

supra, 864 A.2d at 517.

It is improper for a prosecutor to offer his or her personal 

opinion as to the guilt of the accused or the credibility of any 

testimony. Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 

102, 112 (2004). However, it is well within the bounds of proper 

advocacy for the prosecutor to summarize the facts of the case 

and then ask the jury to find the accused guilty based on those 

facts. See id.

The standard by which the court considers allegations of 

improper prosecutorial comments is a stringent one:

Comments by a prosecutor constitute reversible error 

only where their unavoidable effect is to prejudice the 

jury, forming in their minds a fixed bias and hostility 

toward the defendant such that they could not weigh 

the evidence objectively and render a fair verdict.

Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1146-47 (2011)

(citations omitted) (emphasis in original).

In the case sub judice, Appellant avers the prosecutor misrepresented 

the evidence when “she stated that Appellant obtained a gun from his blue 

Acura, which was parked in the club’s parking lot.” Appellant’s Brief at 28. 

Appellant also avers the prosecutor misrepresented the evidence when she 

“told the jury that Appellant threw the gun into the river.”6 Id. 

____________________________________________

6 We note with disapproval that Appellant has not set forth the place in the 

certified record where the prosecutor made the statements, which he is now 

challenging. However, the PCRA court has set forth specific page numbers in 

its opinion, and, thus, we shall refer to the relevant passages appearing at 

those cited page numbers in our analysis. 
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Regarding the first challenged statement, in context, the prosecutor 

indicated the following:

The Defendant—the video stops at 11:32. That’s as much 

video as we had from the organization, the club, 11:32.

If I do my math right...that should be 13 minutes away from 

11:45. But if I messed it up, you all can do the math.

So, the Defendant had 13 minutes to go from the club to his 

car to get the gun. And that’s where the gun was, he wasn’t 

partying with the gun on his waist. The gun was in the car. He 

went to the car, and he got that gun because his car, that little 

blue Acura, was parked in the lot. That same lot that he went to, 

to try to run back to, to get away from. 

N.T., 5/18/18, at 240-41.

Regarding the second challenged statement, in context, the prosecutor 

indicated the following:

Let’s deal with—let’s deal with the chase for a minute before 

we go to identification.

Zack [Gorczynski] said he chased the Defendant down 

Callowhill, across Delaware, Columbus Avenue and saw him toss 

a gun.

Now, the cops said, “We looked for the gun, but we couldn’t 

find it. If it was a little to the left, we could have missed it. A 

little to the right, we could have missed it. We got on our hands 

and our knees, on August 8th, and we tried to find it, but we 

couldn’t find it.” 

We know he had a gun because he is the only person ever, 

ever, ever, ever, ever that any of the witnesses said that they saw 

shooting.

We know Officer Frasier searched that area thoroughly for a 

gun; up the street, under cars, around and so on and so forth. 

And we also know that the river is right there. Right there 

(indicating). 

And the testimony of Gorczynski was that the Defendant 

threw that gun away even before he got to [Lieutenant] 

Dandridge, before he got to Dandridge.
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Id. at 226-27.

In analyzing these passages, and concluding Appellant was not entitled 

to relief on his ineffectiveness claim, the PCRA court indicated the following:

[Appellant] has failed to show that trial counsel was 

ineffective because the statements made by the prosecutor were 

not improper and did not violate any constitutionally or statutorily 

protected right. The comments made by the prosecutor during 

closing argument were supported by or were fair inferences from 

the evidence presented at trial. The prosecutor’s remarks were 

also fair responses to comments made by trial counsel during 

closing argument.

The prosecutor’s comment about [Appellant] retrieving a 

gun from his car before the shooting was proper as it is based 

upon a reasonable inference from the evidence presented at trial. 

The prosecutor’s comment is based on the amount of time 

between when [Appellant] left the club and when the shooting 

occurred. Surveillance video from the River Deck club showed 

[Appellant] leaving the club at approximately 11:32 p.m. A police 

radio call reported gunshots fired at about 11:45 p.m. Renfro also 

provided testimony that [Appellant] did not have a gun at the club 

prior to the shooting, and Renfro did not know where [Appellant] 

was between leaving the club and the shooting. The prosecutor’s 

comment was a fair inference from the evidence presented that 

[Appellant] retrieved a gun from his car before the shooting. N.T., 

5/15/18, at 196-98; N.T., 5/16/18, at 7-8, 101, 104-05; N.T., 

5/18/18, at 241.

***

The prosecutor’s references to [Appellant] throwing a gun 

into the river were permissible because they were based on 

evidence introduced at trial. Although the Philadelphia Police 

Marine Unit conducted a search of the river and failed to find a 

gun, the prosecutor’s references were supported by Gorczynski’s 

testimony. At trial, Gorczynski stated that he saw [Appellant] 

throw a gun into the river as he was chasing him. The prosecutor’s 

references were also a fair response to trial counsel’s closing 

argument in which he stated that Gorczynski’s testimony that he 

saw [Appellant] throw the gun in the river should not be credited. 

N.T., 5/14/18, at 129, 185; N.T., 5/18/18, at 187-88, 226-27. 
J-S18045-23

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***

[Appellant] has also failed to establish that the prosecutor’s 

comments prejudiced him. None of the prosecutor’s statements 

during closing argument violated any of [Appellant’s] 

constitutional or statutory rights. The prosecutor’s statements 

were not so prejudicial that they caused the jury to form a bias or 

hostility toward [Appellant] that would make them incapable of 

weighing the evidence and rendering a verdict in a fair manner. 

Additionally, the [trial] court instructed the jury repeatedly that 

the questions and arguments of counsel are not to be considered 

evidence. Jurors are presumed to follow the court’s instructions. 

See Commonwealth v. Aikens, 641 Pa. 351, 168 A.3d 137, 143 

(2017); N.T., 5/14/18, at 26, 30-31; N.T., 5/18/18, at 167. As 

the prosecutor’s comments were not improper and did not 

prejudice [Appellant], trial counsel was not ineffective for failing 

to object.

PCRA Court Opinion, 11/14/22, at 22-24 (citation omitted).

We agree with the PCRA court’s sound reasoning. Simply put, the 

prosecutor’s statements were based on fair and reasonable inferences arising 

from the testimony and evidence presented during trial, as well as a fair 

response to the defense’s closing argument.

7 See Chmiel, supra. 

Accordingly, there was no basis for trial counsel to object. Id. Moreover, as 

the PCRA court indicated, the trial court’s jury instruction, which indicated the 

____________________________________________

7 For example, during closing argument, defense counsel suggested Appellant 

did not have a gun during the time of the shooting since the River Deck club 

pats people down for weapons before they enter the club, and Appellant had 

just exited the club before the shooting occurred. N.T., 5/18/18, at 183. Also, 

during closing argument, defense counsel pointed to Gorczynski’s testimony

that Appellant dropped the gun in the water by the parking lot, and defense 

counsel indicated, “We know that ain’t so.” Id. at 187. The prosecutor was 

permitted to make arguments during closing, which were a fair response to 

the defense arguments and supported by the record. See Chmiel, supra.
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attorneys’ arguments are not evidence, cured any potential prejudice. See 

Commonwealth v. Stokes, 576 Pa. 299, 839 A.2d 226, 244 (2003) (holding 

a trial court’s instruction that a prosecutor’s comments do not constitute 

evidence removed any prejudice, as the jury is presumed to follow the court’s 

instructions; counsel was not ineffective for failing to object). Thus, Appellant 

is not entitled to relief on his ineffective assistance of counsel claim. See Ali, 

supra.

In his final issue, Appellant claims he has “new evidence” that the 

prosecutor permitted false testimony against Appellant at trial. Specifically, 

he contends he has discovered “Detective Pitts has been charged with two 

counts of felony perjury.”8 Appellant’s Brief at 30. He reasons that Pitts’ 

misconduct in an unrelated case is evidence that Pitts must have “engaged in 

objective police misconduct designed to corrupt [Appellant’s] trial by offering 

immunity to a person in exchange for testimony shifting the blame to another 

person.” Id. 

Initially, we note that a claim of after-discovered evidence is cognizable 

under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vi).

To obtain relief based upon newly-discovered evidence under the 

PCRA, [the petitioner] must establish that: (1) the evidence has 

been discovered after trial and it could not have been obtained at 

or prior to trial through reasonable diligence; (2) the evidence is 

____________________________________________

8 Appellant does not explain when he learned of the charges against Detective 

Pitts in the unrelated case. However, the PCRA court notes Detective Pitts 

was charged on March 3, 2022, which was during the pendency of Appellant’s 

instant PCRA petition. 
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not cumulative; (3) it is not being used solely to impeach 

credibility; and (4) it would likely compel a different verdict.

Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 595–96 

(2007).

The standard on PCRA review is whether “the new evidence ‘would have 

changed the outcome of the trial if it had been introduced.’” Commonwealth

v. Soto, 983 A.2d 212, 216 (Pa.Super. 2009) (quoting 42 Pa.C.S.A. § 

9543(a)(2)(vi)). Where, as here, the claim is based on the improprieties of an 

investigating police officer, the petitioner must demonstrate a nexus between 

the improprieties and the petitioner’s claim for relief. See Commonwealth

v. Foreman, 55 A.3d 532 (Pa.Super. 2012).

In rejecting Appellant’s claim of after-discovered evidence, the PCRA 

court relevantly indicated the following:

[Appellant] raised [an] issue alleging misconduct by 

Detective James Pitts, who conducted Renfro’s police 

interview....This claim amounts to an after-discovered evidence 

claim.

***

On March 3, 2022, Detective Pitts was charged with two 

counts of felony perjury. Detective Pitts is alleged to have 

physically assaulted a defendant in another case to obtain a 

confession and later lied about the interaction during his 

testimony at [the defendant’s] trial. Although Detective Pitts 

conducted Renfro’s interview, [Appellant] has not presented any 

factual averments which show any misconduct by Detective Pitts 

in this case. [Appellant] has not alleged with any specificity any 

actions taken by Detective Pitts which would amount to 

misconduct. Renfro’s interview was recorded, and the video does 

not show any inappropriate conduct by the police throughout the 

interview. Renfro’s testimony at trial was consistent with his 

statement to the police, and Renfro has never alleged that there 
J-S18045-23

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was any misconduct by any of the detectives involved in his 

interview.

[Appellant] is not entitled to relief based on Detective Pitts’ 

alleged misconduct in an unrelated case. At most, [Appellant’s] 

claim of misconduct by Detective Pitts could only be used to 

impeach the credibility of Renfro. See Commonwealth v. 

Johnson, 179 A.3d 1105, 1123 (Pa.Super. 2018) (filing of 

criminal charges against detectives in an unrelated matter does 

not meet the after-discovered evidence test since such evidence 

would be used solely to impeach). 

Even without Renfro’s testimony, a different verdict is not 

likely if a new trial were granted in this case. As [Appellant] has 

failed to establish that the evidence would not be solely used to 

impeach the credibility of a witness, and that there is no 

reasonable probability that the introduction of the evidence would 

result in a different verdict, [Appellant’s] after-discovered 

evidence claim concerning Detective Pitts fails. 

PCRA Court Opinion, filed 11/14/22, at 25-27. 

We agree with the PCRA court’s sound reasoning. Absent proof that 

Detective Pitts committed misconduct in Appellant’s case, the evidence of his 

misconduct in an unrelated case could only be used for impeachment purposes 

if Appellant were granted a new trial. Washington, supra. Also, given 

overwhelming evidence of Appellant’s guilt, including the eyewitness 

identification testimony of Gorczynski and Jones, Appellant has failed to 

demonstrate this “new evidence” would likely compel a different verdict. Id.

Thus, Appellant cannot satisfy the after-discovered evidence test. See 

Johnson, supra. 

For all of the aforementioned reasons, we affirm.

Affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/1/2023