J-S03036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID REYES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 985 EDA 2021

Appeal from the PCRA Order Entered April 14, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0001249-2013

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 20, 2023

David Reyes (“Reyes”) appeals from the order dismissing his first 

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 

We affirm.

The PCRA court provided the following factual and procedural history:

[I]n May [] 2012, at approximately 5:34 PM, [Reyes] shot 

and killed Samuel Rivera (the “victim”) at the victim’s place of 

employment, Jiffy Lube[, on] Aramingo Avenue in the city and 

county of Philadelphia. Prior to this shooting, [Reyes] and the 

victim had argued about the victim’s relationship with [Reyes’s]

sister[,] Jacqueline Reyes[ (“Ms. Reyes”),] and her son[,] E.C. At 

trial, Ms. Reyes testified that she had a relationship with the victim 

that began in 1996 and ended in 2003 because the victim was 

allegedly abusive to her and her family. In 2008, [Reyes] accused 

the victim of sexually abusing E.C. These accusations led to 

criminal charges being brought against the victim, who was 

arrested[, tried,] and later acquitted[, following a non-jury trial

(“the victim’s child abuse trial”)]. [At the conclusion of the 

victim’s child abuse trial, the trial court found the prosecution’s 

____________________________________________

1 See 42 Pa.C.S.A. §§ 9541-9546.
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witnesses incredible, and, further, that someone—unidentified in 

the record for this case sub judice—had planted a memory of 

abuse in E.C.’s mind.]

Before fatally shooting the victim [in 2012], [Reyes] had 

walked to the Jiffy Lube[, where the victim worked,] with a 

concealed weapon[,] and engaged the victim in an argument[,]

[during which Reyes] again accused the victim of sexually

assaulting [Reyes’s] minor nephew. According to [Reyes], the 

victim then referenced his acquittal of those charges [and then 

taunted Reyes, including, saying, “Fuck your mother,” to Reyes 

about Reyes’s recently deceased mother.]

During this exchange[,] the victim was inside a vehicle 

which was being serviced. The victim began to point and yell at 

[Reyes] and scream for someone to call police. As he continued 

to yell, [Reyes] pulled a handgun from his waistband and shot the 

victim at least six times. After the shooting, [Reyes] walked away 

from the Jiffy Lube. He walked through an alleyway and then onto 

Tulip Street where he disposed of a gun holster, black jacket, and 

ear buds.

William Nash [(“Nash”)], another Jiffy Lube employee, 

heard the victim yelling for someone to call police and dialed 911. 

Nash later gave two statements to police and identified [Reyes]

from a photograph as the shooter. . . . Derrick and Shanta Wilson 

and their sixteen-year-old daughter . . . were inside their vehicle 

and exiting a shopping center parking lot when they witnessed the 

murder. . . . Later that day, the Wilson family provided 

statements to Homicide Unit detectives. Because the Wilson’s 

[sixteen]-year-old daughter saw the shooter’s face, homicide 

detectives visited the Wilson home the next day and interviewed 

her a second time. At this second interview, she circled [Reyes’s]

photograph and identified him as the shooter.

When Police Officer Jason Smaron arrived on the scene a 

few minutes after the shooting, he observed the victim inside the 

vehicle with his legs on the driver’s side and his waist and torso

leaning over the console towards the front passenger seat. At 

approximately 5:56 p.m., the victim was pronounced dead at 

Temple University Hospital. . . . Police would later locate [Reyes]

in Florida[,] where [Reyes] was residing prior to being 

apprehended.
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On January 5, 2015, [Reyes received a plea offer from the 

Commonwealth, conferred with counsel, and informed the trial 

court that he was rejecting the offer; and he thereafter]

underwent a trial by jury [that] lasted for five days[. At trial, 

Reyes testified, and he also presented testimony by Allan M. 

Tepper, J.D., Psy.D (“Dr. Tepper”), who opined that Reyes’s 

“modest problem-solving skills,” history of drug abuse, 

“longstanding underlying mental health problems,” “underlying 

emotional problems,” his grief over his mother’s recent death, and 

the verbal confrontations with the victim, all could or would have 

limited his ability to form the specific intent to kill. See N.T., 

1/8/15, at 233-36. While trial counsel attempted to elicit 

testimony from Dr. Tepper about provocation and also requested 

a voluntary manslaughter jury instruction, the trial court

precluded the testimony and declined to read the jury instruction, 

concluding that there was no factual basis to support either. See 

id. at 202-09, 255. At the conclusion of the trial, the jury found 

Reyes] guilty of murder in the first degree, possession of an 

instrument of crime, carrying a concealed firearm without a

license, and carrying a firearm in the public streets in Philadelphia. 

[The trial court sentenced Reyes] to[, inter alia,] life imprisonment 

on the first[-]degree murder conviction . . ..

The procedural history in this matter is . . . complex. [I]n 

February [] 2015, [Reyes] filed a timely [n]otice of [a]ppeal to the 

Pennsylvania Superior Court. [I]n February [] 2017, the 

Pennsylvania Superior Court[, having rejected, inter alia, Reyes’s 

argument that he was entitled to a provocation defense or 

voluntary manslaughter jury instruction,] affirmed [his] judgment 

of sentence. [I]n March [] 2017, [Reyes] filed a [p]etition for 

[a]llowance of [a]ppeal with the Pennsylvania Supreme Court. On 

August 8, 2017, the aforementioned petition was denied. On 

March 6, 2018, [Reyes] filed a timely PCRA [p]etition [via 

privately-retained counsel, Jack McMahon, Esquire]. [Following 

uncertainty about whether Attorney McMahon was continuing to 

represent Reyes or whether Reyes needed new counsel to be 

appointed, the matter was continued in August 2018.] On 

September 6, 2018, George Yacoubian, Esquire, [was appointed 

to represent Reyes]. [Attorney Yacoubian moved to withdraw 

later that month, the PCRA court granted the motion, and Attorney

McMahon again entered his appearance on December 6, 2018, yet 

failed to appear for status hearings on December 7, 2018 and 

January 17, 2019. On January 18, 2019, the PCRA court again 

appointed Attorney Yacoubian to represent Reyes.] [I]n March []
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2019, Attorney Yacoubian filed a [no-merit letter pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A2d 213 (Pa. Super. 1988) (en 

banc). That same month, the PCRA court] issued a [Pa.R.Crim.P.] 

907 [n]otice of [d]ismissal. . . . [Reyes] filed a motion for 

extension of time so he could respond to the [Rule] 907 [n]otice. 

[Reyes] filed additional pro se motions which were not ruled on by 

the PCRA [c]ourt. On May 3, 2019, the PCRA [c]ourt issued an 

order dismissing [Reyes’s] PCRA [p]etition.

[Reyes] filed a [timely n]otice of [a]ppeal [i]n May [] 2019 

through [Attorney McMahon]. [Subsequently i]n May [] 2019, 

[Reyes] filed a motion to proceed pro se. The PCRA Court did not 

rule on this motion[, but instead] ordered [Reyes] to file a 

[Pa.R.A.P.] 1925(b) [s]tatement. [Reyes filed in the Superior 

Court a petition to proceed pro se, and o]n July 2, 2019, the 

Pennsylvania Superior Court remanded the matter for a . . .

hearing [pursuant to Commonwealth v. Grazier, 713 A.2d 81 

(Pa. 1998), to determine whether Reyes’s waiver of counsel was

knowing intelligent, and voluntary]. [I]n August [] 2019, the 

PCRA Court permitted [Reyes] to proceed pro se. On May 21, 

2020, [t]he Pennsylvania Superior Court [determined that 

Attorney Yacoubian’s no-merit letter, and the PCRA court’s Rule 

907 notice, were defective, and] vacated the PCRA [c]ourt’s order

dismissing [Reyes’s] petition[,] and remanded for . . . [Attorney

Yacoubian] to file a proper motion to withdraw and an amended 

[Turner/]Finley [no-merit] letter. [See generally

Commonwealth v. Reyes, 237 A.3d 468 (Pa. Super. 2020) 

(unpublished memorandum).]

[Attorney Yacoubian filed another no-merit letter and 

motion to withdraw in October 2020, and i]n January [] 2021, th[e 

PCRA] court filed a [n]otice of [d]ismissal under Rule 907.

[Reyes] filed a [m]otion for [e]xtension of [t]ime and[, later, a]

response[] to the [Rule] 907 [n]otice [in March 2021, in which 

Reyes sought leave to file an amended PCRA petition pro se and 

raised layered claims of ineffectiveness against PCRA counsel 

grounded on five assertions of ineffectiveness against trial and 

appellate counsel]. After reviewing the pro se filing[], th[e] court 

dismissed [Reyes’s] PCRA [p]etition [i]n April [] 2021. [I]n May 

[] 2021[, Reyes] filed a timely pro se [n]otice of [a]ppeal to the 

Pennsylvania Superior Court[, after which the PCRA court, 

apparently erroneously, appointed counsel; and, following Reyes’s 

petition in the Superior Court to proceed pro se, the Court, in 
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October 2021,] remand[ed the case] for the PCRA court to conduct 

a[nother] Grazier hearing to inquire as to whether [Reyes] could 

rightly represent himself[. I]n April [] 2022[,] the PCRA court 

granted [Reyes’s motion to proceed pro se]. [Reyes timely] filed 

his [Pa.R.A.P.] 1925(b) statement . . ..

PCRA Court Opinion, 5/18/22, 1-5 (footnote and internal citations to the 

record omitted). The PCRA court likewise complied with Rule 1925.

Reyes raises the following issues for our review:

1. Did [Reyes’s two PCRA attorneys] fail to fulfill their duty . . . to 

provide meaningful assistance to afford [Reyes] a full and fair 

opportunity to raise meritorious claims of trial counsel’s 

ineffectiveness?

2. Did the [PCRA] court deny a fundamentally fair PCRA

proceeding [by] sua sponte removing privately[-]retained 

PCRA counsel and then . . . appointing [a second PCRA attorney 

to represent Reyes] without providing any notice to [Reyes]

that [the first PCRA] counsel was . . . removed and new PCRA

[attorney] appointed?

3. Did the PCRA court abuse its discretion in denying [Reyes’s]

request to file an amended/supplemental petition pursuant to 

Pa.R.Crim.P. 905(A) to specifically raise five meritorious claims 

of trial counsel’s ineffective assistance that PCRA counsel 

inexcusably failed to raise?

Reyes’s Brief at 4 (unnecessary capitalization omitted).

We begin with our standard of review for an order dismissing a PCRA 

petition:

Our review of a PCRA court’s decision is limited to examining 

whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. We view the record in the light most favorable to the 

prevailing party in the PCRA court. We are bound by any 

credibility determinations made by the PCRA court where they are 

supported by the record. However, we review the PCRA court’s 

legal conclusions de novo. 
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Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation 

and quotations omitted).

In his three issues, Reyes argues that his two PCRA attorneys rendered 

ineffective assistance of counsel; and, further, that the combination of their 

errors, along with the PCRA court’s prior failure to notify him about the change 

in counsel, in addition to the court’s denial of his motion for leave to file an 

amended petition pro se, precluded him from presenting five meritorious 

issues for the PCRA court’s consideration.

Reyes, in his first issue, presents layered claims of ineffectiveness 

against his PCRA attorneys based on their failure to advance five 

ineffectiveness claims against trial and appellate counsel. In order to be 

eligible for PCRA relief, the petitioner must prove by a preponderance of the 

evidence that his conviction or sentence resulted from one or more of the 

enumerated circumstances found in section 9543(a)(2), which includes the 

ineffective assistance of counsel. See 42 Pa.C.S.A § 9543(a)(2)(i); see also 

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa. Super. 2016). 

To prevail on an ineffective assistance of counsel claim, the petitioner 

has the burden to prove: “(1) the underlying substantive claim has arguable 

merit; (2) counsel whose effectiveness is being challenged did not have a 

reasonable basis for his or her actions or failure to act; and (3) the petitioner 

suffered prejudice as a result of counsel’s deficient performance.” Benner, 

147 A.3d at 920 (internal citations and quotations omitted). The failure to 
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satisfy any of these prongs is fatal to a petitioner’s claim. See id. 

Additionally, counsel is presumed effective. See id. 

Where a first PCRA petition is concerned, petitioners may, “after a PCRA 

court denies relief, and after obtaining new counsel or acting pro se, raise 

claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even 

if on appeal.” Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021).

“Whe[n] a petitioner alleges multiple layers of ineffectiveness, he is required 

to plead and prove, by a preponderance of the evidence, each of the three 

prongs of ineffectiveness relevant to each layer of representation.” 

Commonwealth v. Parrish, 273 A.3d 989, 1004 n.11 (Pa. 2022). “In 

determining a layered claim of ineffectiveness, the critical inquiry is whether 

the first attorney that the petitioner asserts was ineffective did, in fact, 

render ineffective assistance of counsel.” Commonwealth v. McCready, 

295 A.3d 292, 299 (Pa. Super. 2023) (internal citation, quotations, and 

brackets omitted; emphasis in original). Our Supreme Court has provided 

that, “[i]n some instances, the record before the appellate court will be 

sufficient to allow for disposition of any newly-raised ineffectiveness claims,”

though, “in other cases, the appellate court may need to remand to the PCRA 

court for further development of the record and for the PCRA court to consider 

such claims as an initial matter.” Bradley, 261 A.3d at 402 (internal citation 

omitted). In support of a remand for an evidentiary hearing on PCRA counsel’s 

ineffectiveness, a petitioner is “required to provide more than mere boilerplate 
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assertions of PCRA counsel’s ineffectiveness.” Id. (internal citation and 

quotations omitted). The PCRA petitioner “has the burden to persuade this 

Court that the PCRA court erred and that such error requires relief.” 

Commonwealth v. Wholaver, 177 A.3d 136, 144–45 (Pa. 2018) (internal 

citations omitted). Further, “it is well settled that this Court may affirm a valid 

judgment or order for any reason appearing as of record.” Id. at 145 (internal 

citation omitted).

Because “the critical inquiry” for layered ineffectiveness claims is 

whether the earlier attorneys rendered ineffective assistance of counsel, we 

first analyze Reyes’s five assertions of ineffectiveness against trial and 

appellate counsel.

In his first assertion of ineffectiveness against trial counsel, Reyes 

argues counsel “failed to provide adequate and competent advice pertaining 

to a plea proffer by the Commonwealth.” Reyes’s Brief at 29. An assertion of 

ineffectiveness in connection with the entry of a guilty plea merits relief only 

if the ineffectiveness caused the defendant to enter an involuntary or unknown 

plea:

Where the defendant enters his plea on the advice of counsel, the 

voluntariness of the plea depends on whether counsel’s advice 

was within the range of competence demanded of attorneys in 

criminal cases. Thus, to establish prejudice, the defendant must 

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

errors, he would not have pleaded guilty and would have insisted 

on going to trial.
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Commonwealth v. Pier, 182 A.3d 476, 478–79 (Pa. Super. 2018) (internal 

citations, quotations, and footnote omitted). Following successful plea 

negotiations and a plea of guilty, a defendant is bound by his statements made 

during the plea colloquy. See Commonwealth v. Reid, 117 A.3d 777, 783 

(Pa. Super. 2015). “The law does not require that [the defendant] be pleased 

with the outcome of his decision to enter a plea of guilty: All that is required 

is that his decision to plead guilty be knowingly, voluntarily, and intelligently 

made.” Commonwealth. v. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013) 

(internal citation, quotations, and brackets). 

Here, Reyes fails to set forth any factual basis whatsoever in support of 

his claim that trial counsel failed to provide adequate and competent advice 

in connection with his plea offer, or explain how PCRA counsel was ineffective 

for failing to raise this issue. Additionally, the PCRA court has cogently 

demonstrated that the trial court colloquied Reyes on the record about the 

terms of the Commonwealth’s plea agreement and Reyes affirmed that he had 

spoken with trial counsel about the offer and decided to reject it. See PCRA 

Court Opinion, 5/18/22, at 9-11 (quoting N.T., 1/5/15, at 12-15). Because 

Reyes has failed to set forth any facts to show that his claim of ineffectiveness 

against trial counsel, in connection with his guilty plea, has arguable merit, 

trial counsel cannot be deemed ineffective, nor can PCRA counsel be 

ineffective for failing to present this claim of trial counsel’s ineffectiveness. 

See McCready, 295 A.3d at 299 (providing that for a layered claim of 
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ineffectiveness, the critical question is whether the first attorney was 

ineffective); see also Bradley, 261 A.3d at 402 (a PCRA petitioner must set 

forth more than boilerplate assertions of ineffectiveness against PCRA counsel 

to merit relief).

In his second and third assertions of ineffectiveness against trial 

counsel, Reyes maintains counsel was ineffective for failing to “object [or] 

request a mistral or curative jury instruction when the prosecutor engaged in 

misconduct” during his cross-examination of Reyes. Reyes’s Brief at 29. 

Reyes further argues that, following the trial court’s ruling sustaining a

defense objection during this line of questioning, and thereafter issuing a 

curative instruction, trial counsel should nevertheless have moved for a 

mistrial, and was ineffective for failing to do so. See id. These issues involve 

the same facts and law; therefore, we address them together. The law 

regarding ineffectiveness claims grounded in prosecutorial misconduct is as 

follows:

[A] claim of ineffective assistance grounded in trial counsel’s 

failure to object to a prosecutor’s conduct may succeed when the 

petitioner demonstrates that the prosecutor’s actions violated a 

constitutionally or statutorily protected right, such as the Fifth 

Amendment privilege against compulsory self-incrimination or the 

Sixth Amendment right to a fair trial, or a constitutional interest 

such as due process. To constitute a due process violation, the 

prosecutorial misconduct must be of sufficient significance to 

result in the denial of the defendant’s right to a fair trial. The 

touchstone is fairness of the trial, not the culpability of the 

prosecutor. Finally, not every intemperate or improper remark 

mandates the granting of a new trial; reversible error occurs only 

when the unavoidable effect of the challenged comments would 

prejudice the jurors and form in their minds a fixed bias and 
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hostility toward the defendant such that the jurors could not weigh 

the evidence and render a true verdict.

Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012) (internal citations, 

quotations, and brackets omitted). Additionally, a mistrial is an “extreme 

remedy [that] must be granted only when an incident is of such a nature that 

its unavoidable effect is to deprive defendant of a fair trial.” Commonwealth 

v. Bracey, 831 A.2d 678, 682 (Pa. Super. 2003) (internal citation omitted). 

A trial court “may remove taint caused by improper testimony through 

curative instructions,” and “must consider all surrounding circumstances 

before finding that curative instructions were insufficient and the extreme 

remedy of a mistrial is required.” Id. (citations omitted). Lastly, jurors are 

presumed to have followed the trial court’s instructions. See 

Commonwealth v. Talbert, 129 A.3d 536, 542 (Pa. Super. 2015).

Here, Reyes again does not state the factual basis for his claim of 

prosecutorial misconduct. However, he asserts it occurred during his crossexamination and involved “prejudicial ‘testimonial hearsay.’” Reyes’s Brief at 

29. Reyes ostensibly means to refer to the point in his cross-examination, 

after Reyes had testified he did not “hate” his victim, see N.T., 1/8/15, at 

176, but “disliked” him, see id. at 181. The Commonwealth subsequently 

impeached Reyes with his prior testimony at the victim’s child abuse trial, 

which included statements that Reyes “couldn’t stand” the “kind of person he

[the victim] is.” See id. at 197. The Commonwealth also read findings of 

fact from the trial court in the victim’s child abuse trial during which the trial 
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court found Reyes incredible and concluded someone had planted a memory 

of abuse in the child abuse victim. See id. at 188-90.

The PCRA court considered these issues and concluded they were 

meritless:

[Reyes] alleges that his trial counsel was ineffective for 

failing to object to prosecutorial misconduct or request either a 

mistrial or a curative instruction during cross-examination. This

issue is meritless. [Reyes’s] trial counsel objected throughout 

[the] cross-examination.

* * * *

. . . It appears as though [Reyes] may believe that [trial 

counsel] did not object because [the trial court] either overruled 

[the] objections or did not rule on [them]. However, the mere 

fact that [the] objections failed does not equate to failing to

object.

* * * *

[Additionally, the trial court,] upon hearing [trial counsel’s]

objection regarding the information presented by the prosecutor 

regarding the victim’s prior trial where the victim was found not 

guilty, provided [a curative] instruction.

PCRA Court Opinion, 5/18/22, at 11-12.

Following our review, we conclude the PCRA court’s findings are 

supported by the record and its legal conclusions error-free. Reyes faults trial 

counsel for not objecting or requesting a mistrial or curative jury instruction; 

however, trial counsel objected several times, eleven of which the PCRA court 

noted, see id., and in response to an objection by trial counsel to the trial 

court’s findings in the victim’s child abuse trial, the trial court here held a 

sidebar, after which it issued the following curative instruction to the jury:
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Ladies and gentlemen of the jury, you’ve heard a good deal 

of testimony regarding another trial wherein the [victim] in this 

case was on trial. The [victim] . . . was found not guilty by a 

judge. That is a fact that you may consider. The judge’s 

reasoning for that is stricken. You may not consider the judge’s 

commentary. You may obviously consider the fact that the 

[victim] was exonerated of the charge lodged against him.

N.T., 1/8/15, at 190-91. Thus, counsel objected and received a curative 

instruction. The jurors are presumed to have followed the instruction. See 

Talbert, 129 A.3d at 542.

2

 Reyes fails to advance a colorable argument that 

the curative instruction was insufficient and that the “extreme remedy of a 

mistrial [was] required.” Bracey, 831 A.2d at 682 (Pa. Super. 2003).

3

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2 While the trial court in the victim’s child abuse case found that someone had 

planted memories in the complainant’s mind, and the Commonwealth read 

this into the record, this statement was addressed by the trial court’s curative 

instruction; further, trial counsel, on re-direct clarified that the judge there 

had not accused Reyes of implanting, or found that he had implanted, false 

memories in the complainant. See N.T., 1/8/15, at 198-99. Additionally, 

Reyes continued to maintain at his own trial that the victim was a “pedophile,” 

which put before the jury the issue of the victim’s acquittal in the child abuse 

trial. See id. at 185 (Reyes testifying that the victim was a pedophile).

3

In any event, once a party moves for a mistrial, the decision of whether to 

grant it is within the trial court’s discretion, and its decision is subject to an 

abuse of discretion standard. See Commonwealth v. Moury, 992 A.2d 162, 

175 (Pa. Super. 2010). Reyes has advanced no argument that a motion for a 

mistrial was likely to be successful or that the trial court would have abused 

its discretion by denying it. 

Further, to the extent that Reyes maintains trial counsel was ineffective for 

failing to object to his, Reyes’s, prior statements at the victim’s trial, such 

statements were not hearsay. See Pa.R.E. 803(25) (providing that 

statements by a party opponent are not excepted from the rule against 

hearsay); see also Commonwealth v. Williams, 176 A.3d 298, 325 (Pa. 

Super. 2017) (holding that a recording of a conversation involving the 

(Footnote Continued Next Page)
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In his fourth assertion of ineffectiveness, Reyes argues trial counsel was 

ineffective for failing to request a voluntary manslaughter jury instruction, 

since he acted in the “heat of passion” when he shot the victim. See Reyes’s 

Brief at 30. Similarly, in his fifth assertion of ineffectiveness, Reyes asserts 

trial and appellate counsel were ineffective for failing to raise the issue of 

provocation or seek a voluntary manslaughter jury instruction grounded in 

federal constitutional law. See id. The law regarding voluntary manslaughter 

is as follows: Under Pennsylvania law, two different mental states can support 

a charge of voluntary manslaughter, one of which is as follows: a person is 

guilty of “heat of passion” voluntary manslaughter if he acts “under a sudden 

and intense passion resulting from serious provocation by . . . the individual 

killed.” 18 Pa.C.S.A. § 2503(a)(1); see also Commonwealth v. Soltis, 687 

A.2d 1139, 1142 (Pa. Super. 1996). 

Further:

Under Pennsylvania law, a homicide defendant is entitled to 

a charge on involuntary or voluntary manslaughter only if the 

evidence adduced at trial would reasonably support a verdict on 

such a charge. In other words, a trial court can give a 

manslaughter instruction only when there is evidence tending to 

show that the defendant is not guilty of the crime of murder but 

____________________________________________

defendant was fell within the hearsay exception in Rule 803(25) insofar as 

they were the defendant’s statements). Additionally, Reyes’s prior statements 

were relevant for impeachment purposes and to establish his motive to kill 

the victim: Reyes testified at his own trial that he had not been angry at the 

victim for trying to get custody of Reyes’s nephew. See N.T., 1/8/15, at 183. 

However, at the victim’s child abuse trial, Reyes testified that the victim had 

to be “crazy” to try to get custody of Reyes’s nephew, that the victim “had to 

be stopped,” and that he “couldn’t stand” the victim. See id. at 195-97.
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is guilty of the lesser crime of manslaughter. In determining 

whether the evidence would support a manslaughter charge, we 

must view the evidence in the light most favorable to the 

defendant.

Id. at 1141 (internal citations omitted). Additionally, the admission or 

exclusion of evidence is “a matter committed to the sound discretion of the 

trial court,” which this Court will not disturb absent an abuse of discretion. 

Commonwealth v. Jackson, 486 A.2d 431, 437 (Pa. Super. 1984). Lastly, 

only relevant competent evidence is admissible at trial. See id.

Reyes, citing Commonwealth v. McCusker, 292 A.2d 286 (Pa. 1972), 

argues that trial counsel was ineffective for failing to put forth a provocation 

defense and argue for a voluntary manslaughter jury instruction based on a 

“cumulative effect of a series of related events.” See Reyes’s Brief at 30.4 

Reyes further maintains that both trial and appellate counsel were ineffective 

for failing to present a federal constitutional due process argument, based on 

____________________________________________

4

In McCusker, our Supreme Court held that the trial court erred in precluding 

psychiatric evidence relevant to determining whether the defendant acted in 

the heat of passion when he murdered his wife. See 292 A.2d at 293. There, 

the provocation included the following: 

[McCusker’s] awareness within the last month before the crime 

that his wife had entered into a meretricious relationship with his 

step-brother; his knowledge within minutes of the crime that his 

wife was perhaps pregnant with his step-brother’s child; and his 

wife’s threat immediately before the crime that she was going 

to leave defendant and take with her his only child.

Id. at 289-90 (emphasis added).
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Mullaney v. Wilbur, 421 U.S. 684 (1975), that the Commonwealth was 

required to disprove that Reyes was acting in the heat of passion.5 See 

Reyes’s Brief at 31-37. Reyes maintains his expert witness, Dr. Tepper, a 

licensed psychologist would have testified that Reyes murdered his victim in 

the heat of passion. See Reyes’s Brief at 34.

The PCRA court considered these issues and determined they lack merit. 

The PCRA court noted that both the trial court and this Court previously 

determined that the victim’s actions did not rise to the level of constituting 

the requisite provocation to support a possible finding of voluntary 

manslaughter. See PCRA Court Opinion, 5/18/22, at 15 (citing 

Commonwealth v. Reyes, 161 A.3d 377 (Pa. Super. 2017) (unpublished 

memorandum at *2) and Trial Court Opinion, 10/23/15, at 16)). The PCRA 

court concluded that, because there was no evidence of record to support a 

provocation defense or to justify a voluntary manslaughter jury instruction, 

neither trial nor appellate counsel can be deemed ineffective. See id. at 15-

18. Further, because neither trial nor appellate counsel were ineffective, 

____________________________________________

5

In Mullaney, the U.S. Supreme Court held that federal due process “requires 

the prosecution to prove beyond a reasonable doubt the absence of the heat 

of passion on sudden provocation when the issue is properly presented in 

a homicide case.” 421 U.S. at 704 (emphasis added). Further, our Supreme 

Court and this Court have held that modifications in federal jurisprudence 

since Mullaney clarify that the prohibition is on requiring a defendant to 

negate an element of an offense or otherwise presuming guilt as to an element 

of an offense. See, e.g., Commonwealth v. Mouzon, 53 A.3d 738, 742-43 

(Pa. 2012); Commonwealth v. Kolovich, 170 A.3d 520, 528-29 (Pa. Super. 

2017).
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neither PCRA attorney could be ineffective for failing to raise prior counsels’

ineffectiveness. See id. at 18-19.

Based on our review, we discern no basis to disturb the PCRA court’s 

ruling. The factual basis of the case establishes that Reyes shot his victim not 

in response to a threat, but rather, as Reyes testified, “He said fuck your 

mother, not guilty, not guilty . . . just mocking me. And everything just turned 

black for me. Like something took over me. I forgot I had the gun on me. . ..

I blanked out . . .. Yeah, that’s when I shot him.” See N.T., 1/8/15, at 156-

57; contra McCusker (holding that expert testimony about heat of passion 

was improperly excluded where the trial court heard evidence that the victim 

threatened to leave her husband and take his only child just before he shot 

her). For these reasons, this Court has already concluded that the trial court 

did not err or abuse its discretion in determining that “there was no factual 

basis for a jury instruction on voluntary manslaughter,” and, further, the trial 

court “properly excluded the proposed heat of passion expert testimony” for 

the same reason. See Reyes, 161 A.3d 377 (unpublished memorandum at 

*2); contra Mullaney, 421 U.S. at 704 (requiring the prosecution to prove 

absence of heat of passion when the issue is properly presented); cf.

N.T., 1/9/15, at 50 (trial court informing the jury that “the Commonwealth . . 

. always has the burden of proving each and every element of the crimes 

charged and that the defendant is guilty . . . beyond a reasonable doubt. So 
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a person accused of a crime is not required to present evidence or to prove 

anything in his own defense”) (emphasis added).6

For the foregoing reasons, neither trial nor appellate counsel may be 

deemed ineffective for the reasons Reyes advances. Accordingly, Reyes’s first 

issue in which he levels layered claims of ineffectiveness against his PCRA 

attorneys merits no relief. See McCready, 295 A.3d at 299.

In his second issue, Reyes argues that the PCRA court denied him a 

“fundamentally fair” PCRA proceeding by sua sponte removing Attorney 

McMahon and then appointing Attorney Yacoubian without providing notice to 

Reyes. Reyes maintains that, following the removal of Attorney McMahon, 

Reyes had “an absolute right to either choose self-representation or retain 

new counsel and then move the PCRA court to file a supplemental PCRA 

petition to raise additional claims of trial counsel’s ineffectiveness . . ..” 

Reyes’s Brief at 26. However, Reyes asserts he was unable to exercise this 

right because he was not served with an order pursuant to Pa.R.Crim.P. 

122(B)(1) indicating the change in counsel. See id.

____________________________________________

6 To the extent that the PCRA court denied relief because it concluded Reyes’s 

voluntary manslaughter issues were previously litigated within the meaning of 

the PCRA, specifically, section 9544(a)(2), it erred, because the claim of 

ineffectiveness is distinct from the underlying substantive legal issue. 

Compare PCRA Court Opinion, 5/18/22, at 16-17 with, e.g., 

Commonwealth v. Spotz, 18 A.3d 244, 262 n.8 (Pa. 2011). However, as 

noted above, we may affirm a valid order for any reason appearing as of 

record. See Wholaver, 177 A.3d at 145.
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The PCRA court concluded this issue merits no relief. The court noted 

that at a Grazier hearing in August 2019, Reyes informed the court that he 

had not wanted Attorney McMahon to represent him. See PCRA Court 

Opinion, 5/18/22, at 22. Additionally, because Reyes had a rule-based right 

to counsel for his first PCRA petition, the court appointed Attorney Yacoubian 

to “protect [Reyes’s] due process rights. The mere fact that Attorney 

Yacoubian filed a [Turner/]Finley letter” does not change this fact. Id. 

Following our review, we discern no error in the PCRA court’s conclusion. 

We note that while Reyes argues that the PCRA court’s “drastic action of 

removing retained counsel and appointing new counsel without a hearing or 

providing notice . . . denied [Reyes] due process and fundamental fairness 

and was essentially tantamount to [him] having no counsel to assist him,” see 

Reyes’s Brief at 26, Reyes has consistently maintained that he does not want 

counsel to represent him in relation to his PCRA petition: In August 2019, 

Reyes indicated to the PCRA court that while his family retained Attorney 

McMahon, “I had told them that I did not want [Attorney] McMahon.” See 

N.T., 8/13/19, at 9-11. Additionally, following Attorney McMahon’s removal

and Attorney Yacoubian’s appointment and subsequent no-merit letter, Reyes 

responded with assertions of layered ineffectiveness claims and repeatedly 

sought to proceed pro se. See, e.g., Motion to Proceed Pro Se, 5/21/19; Rule 

907 Response, 3/9/21, at 8 (moving for leave to file a pro se amended PCRA 

petition rather than appointment of new PCRA counsel and asserting layered 
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claims of ineffectiveness); Motion to Proceed Pro Se, 1/14/22 (seeking a 

Grazier hearing in order to proceed pro se); Application, 3/30/22, at ¶ 7 

(Reyes stating that he had “not made any request since the August [] 2019 

Grazier hearing for the appointment of counsel”); Short Certificate, 4/8/22 

(PCRA court noting that it had held a Grazier hearing and that Reyes was 

permitted to proceed pro se); Petition, No. 985 EDA 2021, 6/27/22 (Reyes 

requesting this Court to order the PCRA court to enter an order correcting the 

docket to reflect that Reyes is proceeding pro se). In sum: Reyes had never 

wanted Attorney McMahon to represent him; to safeguard Reyes’s rights 

following Attorney McMahon’s repeated failure to appear for court, the PCRA 

court appointed Attorney Yacoubian. Following Attorney Yacoubian’s no-merit 

letter, Reyes has repeatedly asserted his desire to proceed pro se. The PCRA 

court held at least two Grazier hearings on the matter; and Reyes, even now, 

seeks to proceed pro se so as to present his five assertions of ineffectiveness 

against trial and appellate counsel. Contra Reyes’s Brief at 26 (citing 

Commonwealth v. Sangricco, 415 A.2d 65, 67 (Pa. 1980) (vacating an 

order dismissing an uncounseled petition for post-conviction relief where 

appointed counsel repeatedly failed to take action to amend the petition, and 

though the petitioner requested new counsel, the post-conviction court did not 

grant the request)). For these reasons, Reyes’s asserted due process 

violations are meritless. 
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Lastly, in his third issue, Reyes argues the PCRA court abused its 

discretion by denying his request to file an amended/supplemental PCRA 

petition pursuant to Pa.R.Crim.P. 905(A). Pennsylvania Rule of Criminal 

Procedure 905(A) permits a PCRA court to grant leave for a petitioner to 

amend or withdraw a PCRA petition at any time, and that amendment “shall 

be freely allowed to achieve substantial justice.” See Commonwealth v. 

Boyd, 835 A.2d 812, 816 (Pa. Super. 2003). A PCRA court has “substantial 

latitude” in deciding whether to permit the amendment of a petition. Id. 

Where a PCRA court denies a motion to file an amended petition, but considers 

another pleading containing issues not included in the prior petition, the PCRA 

court has “effectively allowed [the petitioner] to amend his petition to include 

those issues . . ..” Id.

Reyes maintains the PCRA court should have permitted him to raise his 

claims of ineffectiveness against trial and appellate counsel because he had 

not had an opportunity to “raise and develop” the claims in his previously 

pending petition. See Reyes’s Brief at 38. Reyes asserts that he could more 

thoroughly present his claims in a pro se petition rather than a Rule 907 

response. See id. For that reason, the PCRA court abused its discretion in 

denying his motion to file an amended petition pro se.

The PCRA court concluded this issue merits no relief. The court 

explained that it “reviewed the five additional issues [Reyes] sought to raise 

prior to dismissing [his] PCRA [p]etition.” PCRA Court Opinion, 5/18/22, at 8. 
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The court indicated that it analyzed these issues “in order to give [Reyes] all 

proper considerations regarding his . . . petition.” Id.

Based on our review, we conclude the PCRA court did not abuse its 

discretion by denying Reyes’s motion to file an amended petition. Reyes 

maintains the PCRA court erred in denying him leave to file an amended 

petition, see Reyes’s Brief at 36-37; however, by considering the substantive 

merits of Reyes’s issues as presented in his Rule 907 response, the PCRA court 

“effectively allowed [him] to amend his petition to include those issues,” and, 

thereby, acted “within its discretion and . . . in furtherance of achieving 

substantial justice” in compliance with the rule. Boyd, 835 A.2d at 816. 

Reyes has failed to show how his claims would be any more meritorious if 

raised in an amended pro se petition rather than his Rule 907 response. 

Accordingly, Reyes is due no relief.

In sum, because none of Reyes’s issues merit relief, we affirm the PCRA 

court’s order dismissing Reyes’s petition.

Order affirmed.

Date: 12/20/2023
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