J-S37012-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREESE COPPER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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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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