J-A06038-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SEAN JOSE RAIN JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 770 WDA 2023

Appeal from the PCRA Order Entered June 20, 2023

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

No(s): CP-43-CR-0001331-2018

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY BECK, J.: FILED: MAY 31, 2024

Sean Jose Rain Jr. (“Rain”) appeals from the order entered by the Mercer 

County Court of Common Pleas dismissing his petition pursuant to the Post 

Conviction Relief Act (“PCRA”).1 On appeal, Rain raises a litany of claims 

asserting the ineffectiveness of his trial counsel. Because we conclude that 

his claims either lack merit or are waived, we affirm.

A prior panel summarized the factual and procedural history of this case:

On June 23, 2018, at approximately 3:00 A.M., the Sharon

Police Department was dispatched to a shots fired call in the 100

block of South Myers Ave. in the City of Sharon, Pennsylvania. 

Upon arrival, officers discovered a deceased male identified as

Trivoune R. Craig (hereinafter “Victim”) seated in the front driver

seat of his own car. Victim had sustained multiple gunshot

wounds to his face. N.T.[], 6/12/19, A.M. session, at 26.

____________________________________________

1

 42 Pa.C.S. §§ 9541-9546.
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Antonio Volpe resides at 54 South Myers Avenue and

testified that ... he woke up around 2:42 a.m. to three or four

gunshots on the day of the incident. Mr. Volpe went to his living

room and looked out his living room’s window to see Victim’s

vehicle across the street with its lights on. Mr. Volpe walked

outside on to his front porch and called out and asked if everyone

was okay. No one responded. ... Mr. Volpe called 911 to report

the incident. The Commonwealth admitted into evidence Mr.

Volpe’s 911 call. During the 911 call, Mr. Volpe stated he heard

voices arguing before the gunshots went off. N.T.[], 6/11/19, 

P.M. session, at 34-35, 37-38.

[Rain]’s aunt, Ashley West [(“West”)], and her paramour, 

Donta Bell [(“Bell”)], lived at 70 South Myers Avenue, which was 

two “houses apart from” Volpe’s residence at 54 South Myers 

Avenue. [Id.] at 5. The trial court summarized their trial 

testimony:

[Bell] testified that on the day of the incident he was

downstairs playing video games when he heard two (2) gunshots

in the early morning hours. [Bell] went upstairs to check that

[West] and her son were okay. Upon returning downstairs, [Bell]

heard a knock at his door. [Bell] then peeked through the 

peephole to see [Rain] standing outside. [Bell] opened the door 

and [Rain] walked right in without saying anything to [Bell]. 

N.T.[], 6/13/19, P.M. session, at 9-12.

After walking into [Bell]’s residence, ... [Rain] immediately 

walked back towards the kitchen area. [Bell] asked [Rain] “what’s 

going on.” [Rain] responded, “it’s cool, Unc.”

* * *

As [Bell] was walking away from [Rain], [Rain] made a 

comment about someone disrespecting [Rain]’s cousin Bubby. 

Bubby had been murdered sometime in the past and [Rain] was 

extremely close to him. [Bell] then went upstairs and told [West]

that she had to go downstairs and talk to [Rain]. [Id.] at 14-17.

[West] testified that she awoke in the early morning hours

on the day of the incident to a commotion. When she first talked

to [Bell], [he] “seemed a little frantic, like something was wrong.” 

[West] ... observed [Rain] inside her ... kitchen. [Rain] then went 

to the laundry room, took off his clothes, including blue jeans, put 
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them in the washing machine, and added detergent and bleach.

N.T.[], 6/13/19, A.M. session, at 86-87, 89-90.

[Rain] stated to [West] “something along the lines of

somebody being gone.” After [Rain] ... put [his clothes] in the 

washing machine, [he] retrieved a bag from [West]’s residence 

that he kept there that had clothes in it. [Rain] then put on the 

clothes and went up into [West]’s attic. [West]’s attic has no bed 

but does have a window where [Rain] could look directly at the 

crime scene below. [Id.] at 93-94, 96, 115.

After [Rain] was up in the attic, a Sharon Police Officer

knocked on [West]’s door [and asked] if she had heard anything. 

[West] informed the Sharon Police Officer that she did not hear 

anything. Additionally, [West] testified that [Rain] was “very 

close” to their cousin Bubby who had been shot to death. [Id.] at 

96, 98-99, 104-05.

* * *

Subsequently, the police searched West and Bell’s house 

and discovered drugs and a 9mm Taurus gun that was licensed to 

West. N.T.[, 6/13/2019], A.M. session, at 99. Both witnesses 

“were given immunity for their testimony and there was also an 

agreement not to pursue any charges against [Bell] or [West].” 

[Id.] at 118.

The Commonwealth also presented the testimony of three 

individuals who were with [Rain] and Victim on the night of the 

shooting at TnT Bar in Farrell, Pennsylvania.

Kaleb Shorts [(“Shorts”)] testified he was at TnT Bar with 

[Rain], Victim, Daniel Wiley [(“Wiley”)], and Isaiah Abram

[(“Abram”)], and they all eventually ... were hanging outside [sic] 

rapping. ... TnT Bar was closing, and [Abram] was the first person 

to leave the group by getting picked up. ... Victim ... retrieved his 

vehicle, drove to the front of TnT Bar and asked if anybody needed 

a ride home. [Shorts] ... declined but [Rain] and [Wiley] got into 

Victim’s vehicle. N.T.[], 6/12/19, P.M. session, at 5, 7-9.

[Abram] is Victim’s cousin. [Abram] testified that [w]hen

TnT Bar was closing, ... Victim and he went outside and were

hanging out with [Rain] and [Wiley]. ... [Abram] and [Rain] were 

rap battling each other and during the rap battle, [Rain] lifted his 
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shirt with his arm to expose a dark object located in [his] waist 

area. When [Rain] let his shirt fall back down, [Abram] could no 

longer see the same dark object. [Abram] testified that he was 

picked up by his girlfriend and went home. [Id.] at 60-65.

[Wiley] testified that he was at TnT Bar around the time it

closed with [Rain], Victim, and [Abram]. When it was time to 

leave, [Wiley] ... got into [] Victim’s vehicle to get a ride home. 

[Rain] started talking to Victim and then entered the backseat.

Victim dropped off [Wiley], who lived very close to TnT Bar. Upon 

[Wiley] exiting Victim’s vehicle, [Rain] got in the front seat. [Id.] 

at 27-30, 32.

The Commonwealth also presented several surveillance 

videos:

TnT Bar provided surveillance video from multiple camera 

angles which were shown to the jury. One video showed [Rain] 

interacting with various people. Sharon Police Department

Captain Travis Martwinski [(“Captain Martwinski”)] testified that 

[Rain] was exhibiting signs of printing, which he explained was 

“carrying a concealed firearm.”

* * *

N.T.[, 6/12/2019], P.M. session, at 79, 81-82, 100, 105-06.

Furthermore, Captain Martwinski testified that the

surveillance video inside TnT Bar showed [Rain] with a large bulge 

in his waistband on the right side of his shirt. [Id.] at 104.

* * *

[Rain] was detained, and on June 24, 2020 — the day after 

the shooting — police administered a gun residue test, N.T.[,

6/13/2019], P.M. session, at 49, 51, which indicated the presence 

of gunshot residue on both of [his] hands. Trial Ct. Op. at 11, 

citing N.T.[, 6/13/2019], P.M. session, at 105. [Rain] was charged 

with, inter alia, criminal homicide, persons not to possess a 

firearm, and carrying a firearm without a license.

On May 10, 2019, the Commonwealth filed a pre-trial 

motion in limine. It explained:
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[A]fter Victim’s murder, Victim’s wife ... informed Sharon 

Police Department that about three (3) to four (4) months prior 

to Victim’s death, their house at 508 Emerson Avenue was shot 

at. No one reported the incident to the police when it occurred, 

and no one was ever charged with the shooting. Sharon Police

recovered a bullet slug from a cabinet in Victim’s house, which did 

not match the bullets that killed Victim.

Trial Ct. Op. at 13 (emphasis added). The Commonwealth 

sought to preclude any reference to this incident, arguing it was 

not relevant, it was overly prejudicial, and it would be confusing 

to the jury. Id. at 12.

The trial court conducted a hearing on June 5, 2019. The 

parties referred to a report, in which “an individual named 

[Timothy Crawford (“Crawford”)]” told police “[Victim] was having 

issues with another individual, who apparently had shot at him in 

the recent past.” N.T.[, 6/5/2019], at 9.

* * *

[Rain] also cited a report ... that Victim “had been having an 

ongoing issue with” someone named Zach Owens [(“Owens”)]. 

Id. at 11. [Rain] argued he should be permitted “to explore other 

suspects” who were not investigated for “very recent past ...

attempts on Victim’s life.” Id. at 9. The Commonwealth 

responded that although, following Victim’s death, there were “a 

couple names thrown out as to who may have had problems with 

Victim,” nothing tied any of those names to the shots fired at 

Victim’s house. Id. at 13.

The trial court agreed with the Commonwealth. Two days 

after the hearing, on June 7, 2019, the trial court granted its 

request to preclude any evidence relating to the shots fired at []

Victim’s house. However, the court provided it would admit such 

evidence if [Rain] could “establish a factual or evidentiary 

foundation that” the prior incident was relevant to the instant

case. Trial Ct. Op. at 14, citing Order, 6/7/19.

Four days [later], a five-day jury trial commenced. The jury 

found [Rain] guilty of [first-degree murder] and firearms not to 

be carried without a license. Separately, the trial court found him 

guilty of person not to possess a firearm.
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On September 4, 2019, the trial court sentenced [Rain] as 

follows: (1) life imprisonment without parole for the murder 

count; (2) a consecutive 42 to 84 months [in prison] for carrying 

a firearm without a license; and (3) a concurrent 18 to 36 months

[in prison] for persons not to possess a firearm.

Commonwealth v. Rain, 407 WDA 2020, 2021 WL 944416 at **1-5 (Pa. 

Super. Mar. 12, 2021) (non-precedential decision) (original brackets and 

some internal citations to the trial court opinion omitted).

Rain timely appealed to this Court, which affirmed his judgment of 

sentence on March 12, 2021. Id. Our Supreme Court denied his petition for 

allowance of appeal on October 1, 2021. Commonwealth v. Rain, 264 A.3d 

332 (Pa. 2021).

Rain filed a timely PCRA petition in which he raised numerous claims of 

ineffective assistance of counsel. On January 6, 2023, the PCRA court held a 

hearing on Rain’s petition. On June 1, 2023, the PCRA court issued notice of 

its intent to dismiss Rain’s petition pursuant to Pennsylvania Rule of Criminal 

Procedure 907, and on June 20, 2023, entered an order dismissing the 

petition. This timely appeal followed. Both the PCRA court and Rain have 

complied with Pennsylvania Rule of Appellate Procedure 1925.

Rain’s brief is a quagmire in terms of its structure, organization, and 

readability—it is in many ways difficult to follow and understand. Additionally, 

the brief violates the Pennsylvania Rules of Appellate Procedure, as it does not 

contain a statement of the questions Rain raises in his brief pursuant to 
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Pa.R.A.P. 2116(a).2 While we could find Rain’s claims waived for his failure to 

comply with the brief requirements under the Pennsylvania Rules of Appellate 

Procedure, see Pa.R.A.P. 2101 (stating that “if the defects are in the brief ... 

of the appellant and are substantial, the appeal ... may be quashed or

dismissed”), we decline to do so. Nevertheless, to aid the readability of this 

memorandum, we will condense and address related issues together.

We begin by acknowledging our standard of review. “We review the 

denial of PCRA relief by examining whether the PCRA court’s conclusions are 

supported by the record and free from legal error.” Commonwealth v. 

Johnson, 289 A.3d 959, 979 (Pa. 2023). “[W]e defer to the factual findings 

of the post-conviction court, which is tasked with hearing the evidence and 

assessing credibility. Id. Our standard of review of a PCRA court’s legal 

conclusions, however, is de novo. Id.

Each of the issues Rain presents for review claim that trial counsel 

provided ineffective assistance.

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2

 Pertinently, Rule 2116(a) provides that “[t]he statement of the questions 

involved must state concisely the issues to be resolved, expressed in the terms 

and circumstances of the case but without unnecessary detail. The statement 

will be deemed to include every subsidiary question fairly comprised therein.

No question will be considered unless it is stated in the statement of questions 

involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Although the 

argument section of Rain’s brief includes more than a dozen separate claims 

of error, the portion of his brief titled “Statement of the Question Involved” 

states only: “Whether the PCRA Court erred by denying Appellant relief in the 

form of a new trial based on one or more instances of ineffective assistance 

of trial counsel (1 (a-e)- 10)?” Rain’s Brief at 4.
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It is well-settled that counsel is presumed to have been effective 

and that the petitioner bears the burden of proving counsel’s 

alleged ineffectiveness. To overcome this presumption, a 

petitioner must establish that: (1) the underlying substantive 

claim has arguable merit; (2) counsel did not have a reasonable 

basis for his or her act or omission; and (3) the petitioner suffered 

prejudice as a result of counsel’s deficient performance, that is, a 

reasonable probability that but for counsel’s act or omission, the 

outcome of the proceeding would have been different.

Commonwealth v. Reid, 259 A.3d 395, 405 (Pa. 2021) (quotation marks 

and citation omitted). Importantly, a PCRA petitioner must address each of 

these three prongs on appeal, as the petitioner bears the burden of pleading 

that counsel provided ineffective assistance. Id. This Court, however, need 

not review claims of ineffective assistance of counsel in any particular order, 

as the law is clear that “[a] petitioner’s failure to satisfy any prong of this test 

is fatal to the claim.” Id.

Ineffective Assistance of Counsel – Alternative Suspect Defense

The first five issues Rain raises on appeal (specifically, the issues he lists 

as 1A through 1D and 2 in his brief) relate to his claim that trial counsel was 

ineffective for failing to investigate and develop an alternate suspect defense. 

See Rain’s Brief at 21-54. Rain argues that trial counsel was ineffective 

because he failed to engage a private investigator, Anthony McClure

(“McClure”),3to assist in gathering information for Rain’s defense until 

approximately three to four weeks prior to trial. Id. at 30-34. Rain asserts 

____________________________________________

3

 McClure was formerly an investigator for the Detective Bureau of the Beaver 

County District Attorney’s Office. N.T., 1/6/2023, at 9, 130.
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that if trial counsel had engaged McClure at an earlier date, it would have 

allowed him to properly develop an alternate suspect defense. See id. With 

respect to an alternate suspect defense, Rain points to Crawford, who did not 

testify at Rain’s trial, as the missing component to the defense. Id. at 34-47. 

Rain maintains that Crawford had firsthand information that Victim had an 

ongoing conflict with Owens and Meco “Magic” Brown (“Brown”), that Crawford 

was with Owens on the night of Victim’s murder, that Owens was carrying a 

firearm, and that Crawford dropped Owens off in the vicinity of the crime 

scene. Id. Thus, Rain contends, trial counsel was ineffective for failing to call 

Crawford as a witness at trial. Id. Additionally, Rain argues that trial counsel 

was ineffective because he misconstrued the trial court’s granting of the

Commonwealths’ motion of limine precluding evidence related to the shooting 

of Victim’s house that occurred three to four months prior to his murder. Id.

at 50-54. Rain asserts that trial counsel wrongly operated under the 

assumption that the trial court’s decision entirely precluded him from calling 

Crawford and other witnesses, such as Brown, JaJuan Adkins-Holland 

(“Adkins-Holland”), and Owens, to support an alternate suspect defense. Id.

To establish that counsel was ineffective for failing to call a witness, a 

PCRA petitioner 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.
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Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). 

Importantly, “[f]ailure to call a witness is not per se ineffective assistance of 

counsel[.]” Id. “To demonstrate ... prejudice, the PCRA petitioner must show 

how the uncalled witnesses’ testimony would have been beneficial under the 

circumstances of the case.” Commonwealth v. Johnson, 966 A.2d 523, 536

(Pa. 2009) (quotation marks and citation omitted).

“Counsel has a general duty to undertake reasonable investigations or 

make reasonable decisions that render particular investigations unnecessary.”

Id. at 535. “Counsel’s unreasonable failure to prepare for trial is an abdication 

of the minimum performance required of defense counsel.” Id. (quotation 

marks and citations omitted). “The duty to investigate ... may include a duty 

to interview certain potential witnesses; and a prejudicial failure to fulfill this 

duty, unless pursuant to a reasonable strategic decision, may lead to a finding 

of ineffective assistance.” Id. at 535-36. The Court explained, however, that 

while “it is per se unreasonable not to attempt to investigate and interview 

known eyewitnesses in connection with defenses that hinge on the credibility 

of other witnesses[,]” it does not mean “that such an omission is per se 

prejudicial.” Id. at 536 (quotation marks and citations omitted). “Indeed, 

such a per se failing as to performance ... does not make out a case of 

prejudice, or overall entitlement to ... relief.” Id.
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As it relates to trial counsel’s failure to investigate, interview, and call 

Crawford as a witness at trial, and trial counsel’s alleged misunderstanding of 

the trial court’s decision on the Commonwealth’s motion in limine, Rain has 

not established that the absence of Crawford’s testimony at trial was 

prejudicial. The record reflects that during the PCRA hearing, Crawford 

testified as follows:

[Crawford]. I told [the police] I was with [Owens] around the

time this incident was supposed to had happened. And that I 

dropped him off, when I dropped him off. I told him about the 

conversations that the Abrams are saying happened with [Owens] 

in between the time of me dropping [Owens] off; me picking him 

up and dropping him off.

Q. You had personal knowledge of what [Owens] was doing in 

that timeframe; correct?

[Crawford]. Right. That we -- that he was with me?

Q. Well, not when he was -- well, that he was -- when he was 

with you, the fact that you dropped him off or whatever, you had 

some knowledge of what he was doing that night; correct?

[Crawford]. Yes.

Q. As opposed to someone else telling you is what I’m saying.

[Crawford]. Yes.

Q. And is that what you told the police in that statement that you 

gave?

[Crawford]. Right. That I had knowledge of what he was -- where 

he was at?

Q. Yeah. And that -- that you had some ideas that maybe he or 

someone else was involved in this.

[Crawford]. No. I said it could have been a possible because they
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–- the Abrams was coming at him over him having problems with 

[Victim].

* * *

Q. So, you had some background on it also. Is that what you’re 

telling the [c]ourt?

[Crawford]. No. I didn’t have no background on it. I – [Victim]

and me is, like, related.

Q. Okay. What I’m saying is you had some personal knowledge 

of not only what [Owens] may have been doing, but also the 

background between [Owens] and the Abrams, [Victim]. Is that

-- is that fair to say?

[Crawford]. Yeah.

* * *

Q. And did you -- did you, in fact, tell the police that you were 

[Victim]’s cousin?

[Crawford]. Yeah.

Q. Okay. And did you also tell the police that you believed that 

either [Owens] or Magic Meco Brown were responsible?

[Crawford]. No. I said I heard that they was responsible.

Q. Okay. Did the name Sean Jose Rain, Jr. ever come up?

[Crawford]. No.

Q. Were you aware of any problems between [Victim] and Magic 

Meco Brown?

[Crawford]. No. That’s what the Abrams was saying whenever

they was coming at [Owens]. I took [Owens] to where the Abrams 

was at and they was saying that they know that it was either him

or whoever Meco, Magic, whatever they call him. I don’t know

what they call him, but that’s what they was saying to [Owens].
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Q. Were they aware of a prior incident regarding [Victim]’s house 

also? Weeks or months before?

[Crawford]. Yeah. They was aware of it.

Q. Okay. So, you told the police everything that you knew about; 

right? In the statement you gave the detective?

A. Right.

Q. What about, umm, [Victim] and Meco getting into it? Was 

there also that mention a few weeks prior?

[Crawford]. No, that was mentioned on the day that -- that the

incident happened.

Q. Okay.

[Crawford]. As far as my knowledge. I’m pretty sure they knew

about it because they all hang around each other, but I didn’t 

know about him and Meco until the incident.

* * *

Q. Who told you about it?

[Crawford]. That’s when I heard, when he was talking to [Owens]. 

He said that him and Meco, Magic -- they call him Magic -- him 

and Magic had fall outs over a girl, so it was either him -- he 

thought that it was either Zach or Magic.

N.T., 1/6/2023, at 146-49 (emphasis added).

Crawford’s testimony at the PCRA hearing was vague and speculative, 

and in some respects, nearly incomprehensible. See id. At best, Crawford’s 

testimony regarding who, other than Rain, may have killed Victim, was

conjecture, as there was no testimony that directly pointed to Owens, Brown,

or anyone else, as the perpetrator. See id. Crawford himself did not even 

testify that he believed Owens or Brown was responsible for the murder, but 
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rather that he had heard they were responsible. Id. Crawford only testified 

that he dropped Owens off in Sharon on the night of Victim’s murder and that 

he heard, from an unnamed source, that Owens and Brown had issues with 

Victim. Id. Our Court has held that “merely suggesting that someone else 

may have had a motive is not evidence.” Commonwealth v. Foley, 38 A.3d 

882, 887 (Pa. Super. 2012) (quotation marks and citation omitted). Thus, 

Crawford’s testimony at the PCRA hearing only amounted to speculation and 

we cannot say, based on the record before us, that trial counsel’s failure to 

investigate and call Crawford as a witness prejudiced Rain.

To the extent Rain argues that trial counsel was ineffective because he 

did not have Brown, Adkins-Holland, or Owens testify in support of his 

alternative suspect defense, he is likewise not entitled to relief. None of these 

witnesses testified at Rain’s PCRA hearing and there is no sworn testimony of 

record from any of these witnesses indicating what they would have testified 

to at trial. See Commonwealth v. Pursell, 724 A.2d 293, 306 (Pa. 1999)

(rejecting appellant’s ineffective assistance of trial counsel claim for failing to 

present witnesses at trial, because appellant failed to show that the witnesses 

would have testified favorably on his behalf). Thus, Rain cannot satisfy the 

five-part test for establishing ineffective assistance of counsel for failing to call 

any of these individuals at trial.

Rain has failed to establish that he was prejudiced by trial counsel’s

failure to investigate, develop, and call witnesses for an alternate suspect 
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defense. Accordingly, we conclude that issues 1A through 1D and 2 do not 

entitle Rain to relief.

Ineffective Assistance of Counsel – TnT Bar’s Security Protocols

In issue 1E, Rain argues that trial counsel was ineffective for failing to 

investigate the TnT Bar’s security protocols. Rain’s Brief at 48-49. Rain 

asserts that had trial counsel conducted such an investigation, he would have 

been able to establish the improbability of a patron inside the bar carrying a 

gun. Id. Rain, however, has again failed to establish prejudice with respect 

to this issue. The record contains no evidence regarding TnT Bar’s security 

protocols—Rain did not call any witness to provide this information at the PCRA 

hearing and the protocols themselves were never presented as documentary 

evidence to the PCRA court. Thus, we cannot say whether it was possible or 

not to enter the bar with a firearm. Instead, Rain asks this Court to presume 

that trial counsel’s lack of investigation into the TnT Bar’s security protocols

was prejudicial. This we cannot do. See Commonwealth v. Sandusky, 203 

A.3d 1033, 1044 (Pa. Super. 2019) (“[B]oilerplate allegations and bald 

assertions of ... prejudice cannot satisfy a petitioner’s burden to prove that 

counsel was ineffective.”) (citation omitted). As such, this claim must fail. 

See Reid, 259 A.3d at 405.

Ineffective Assistance of Counsel – Jury Instruction

In issue 3, Rain argues that trial counsel was ineffective because he did 

not object to the trial court’s decision to deny his request for Standard Jury 
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Instruction 4.06, “Certain Testimony Subject to Special Scrutiny.”

4

 Rain’s 

Brief at 54. Rain argues this jury instruction was necessary because Bell, 

West, and Wiley received immunity in exchange for testifying at Rain’s trial

and that trial counsel’s failure to object to the denial of this jury instruction 

precluded him from pursuing the claim on direct appeal. Id. Rain further

asserts that trial counsel was ineffective for failing to request Standard Jury 

Instruction 4.15, “False in One, False in All.”

5

 Id. at 54-58. Rain asserts that 

this jury instruction would have allowed the jury to disregard the testimony 

Wiley, Bell, and West because their testimony lacked credibility. Id.

At trial, the trial court gave the following instructions to the jury 

regarding witness credibility:

As judges of the facts, you are the sole judges of the credibility of 

the witness and their testimony. This means you must judge the 

truthfulness and accuracy of each witness’s testimony and decide 

whether to believe all, part, or none of that testimony. The 

following are some of the factors that you may and should 

consider when judging credibility and deciding whether or not to 

believe testimony. ... Did the witness have an interest in the 

____________________________________________

4 Standard Jury Instruction 4.06 provides, “[y]ou should examine closely and 

carefully and receive with caution the testimony of [name of witness] [any 

witness] if you find that he or she [was previously hypnotized] [admitted that 

he or she committed perjury at another trial] [give specific situation].” Pa. 

SSJI (Crim) § 4.06 (brackets and italics in original).

5 Standard Jury Instruction 4.15 states, “[i]f you decide that a witness 

deliberately testified falsely about a material point, [that is, about a matter 

that could affect the outcome of this trial,] you may for that reason alone 

choose to disbelieve the rest of his or her testimony. But you are not required 

to do so. You should consider not only the deliberate falsehood but also all 

other factors bearing on the witness's credibility in deciding whether to believe 

other parts of [his] [her] testimony.” Pa. SSJI (Crim) § 4.15.
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outcome of the case, bias, prejudice, or other motive that might 

affect their testimony? ... If you believe some part of the testimony 

of a witness to be inaccurate, consider the inaccuracy -- consider 

whether the inaccuracy casts doubt upon the rest of their 

testimony.

N.T., 6/17/2019, at 91-92.

Thus, the record reveals that while the trial court did not instruct the 

jury using the precise language of Standard Jury Instructions 4.06 and 4.15, 

it nonetheless provided the jury with instructions that directly addressed the 

concerns Rain now raises on collateral review regarding the reliability or 

credibility of Wiley, Bell, and West. Significantly, the instruction addressed 

the issue of credibility of the witnesses, and informed the jury that it could 

disbelieve a witness’ entire testimony if it found that any part of the testimony 

provided by that witness was inaccurate.6 “[I]t is well[]settled that the trial 

court has wide discretion in fashioning jury instructions. The trial court is not 

required to give every charge that is requested by the parties and its refusal 

to give a requested charge does not require reversal unless the appellant was 

prejudiced by that refusal.” Commonwealth v. Kline, __ A.3d __ 2024 WL 

12453302024, *2 (Pa. Super. 2024) (quotation marks and citation omitted). 

Given the substance of the instruction set forth above that the trial court 

____________________________________________

6 The record reflects that during the cross-examination of Bell, West, and 

Wiley, trial counsel attacked their biases and credibility, given that they were 

granted immunity in exchange for their testimony in this case. See N.T., 

6/12/2019 (P.M. session), at 38-46; N.T., 6/13/2019 (A.M session), at 119-

57; N.T., 6/13/2019 (P.M. session), at 28-43.
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provided to the jury in this case, we cannot say that Rain was prejudiced by 

trial counsel’s failure to object to the denial of the “Certain Testimony Subject 

to Special Scrutiny” instruction or his failure to request the “False in One, False 

in All instruction.” See Commonwealth v. Spotz, 18 A.3d 244, 299 (Pa. 

2011) (holding that counsel was not ineffective for failing to object to the jury 

instructions where the instructions properly explained the law). Rain provides 

no specific argument that convinces us otherwise. Because Rain does not 

establish prejudice, his third issue does not entitle him to relief. See Reid, 

259 A.3d at 405.

Ineffective Assistance of Counsel – Motion in Limine

In issue 4, Rain argues that trial counsel was ineffective for failing to file 

a motion in limine to preclude the testimony of the Commonwealth’s gunshot 

residue (“GSR”) expert. Rain’s Brief at 59-63. Rain takes issue with the fact 

that the Commonwealth’s GSR expert’s report detected one particle of 

gunshot residue on Rain’s right hand approximately 36 hours after the Victim’s 

murder, “when detection within six hours is the scientific standard for such 

evidence.” Id. at 59.

In support of this claim, Rain cites generally to Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993), for the standard of 

admissibility of scientific testimony and asserts that under Daubert, “the trial 

court retains its role as gatekeeper by making a preliminary assessment of 

whether the reasoning or methodology underlying the proposed expert 
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testimony is reliable and whether such reasoning or methodology is properly 

applied to the facts in issue.” Rain’s Brief at 62. Without any analysis of 

Daubert, Rain baldly concludes that he was prejudiced because trial counsel 

“allowed scientific norms to be trampled on” and he did not prevent the 

admission of the GSR evidence in this case. Id.

There are a number of problems with this argument. First, Daubert 

applies to the admissibility of novel scientific evidence, not scientific evidence 

generally, and Rain makes no claim that the evidence presented by the 

Commonwealth’s GSR expert is somehow novel. Second, and significantly, 

Daubert is not the applicable test in Pennsylvania, as our Supreme Court has 

adopted the standard set forth in Frye v. United States, 293 F. 1013 (D.C.

Cir. 1923), for the admissibility of novel scientific evidence. See Grady v. 

Frito-Lay, Inc., 839 A.2d 1038, 1043-44 (Pa. 2003). “Under Frye, novel 

scientific evidence is admissible if the methodology that underlies the evidence 

has general acceptance in the relevant scientific community.” Id. Therefore, 

Rain’s reliance on Daubert is misplaced.

Furthermore, Rain’s brief cites no authority in support of his assertion

that if trial counsel had filed a motion in limine to preclude the testimony of 

the GSR expert, the trial court likely would have granted it, or that the GSR 

evidence was otherwise inadmissible because the sample was taken from Rain 

thirty-six hours after Victim’s murder instead of the within six hours. Rain 

likewise did not present any expert testimony on GSR before the PCRA court. 
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Instead, Rain asks this Court to presume that trial counsel’s decision not to

file a motion in limine was prejudicial to Rain. See Sandusky, 203 A.3d at 

1044. As Rain has failed to demonstrate that trial counsel’s decision not to 

file a motion in limine resulted in any prejudice, his claim relating to the GSR 

expert does not warrant relief. See Reid, 259 A.3d at 405.

Ineffective Assistance of Counsel – Cross-Examination

In issue 5, Rain argues that trial counsel was ineffective in crossexamining Captain Martwinski, Sargeant Detective Ryan Chmura (“Detective 

Chmura”), West, and Bell. Rain’s Brief at 63-70. In support of this claim, 

Rain relies on Commonwealth v. Williams, 141 A.3d 440 (Pa. 2016), for 

the proposition that the failure to properly cross-examine a witness for the 

Commonwealth is prejudicial and would necessarily affect the outcome of a 

trial. See Rain’s Brief at 70.

At the outset, we recognize that “[t]he Confrontation Clause in the Sixth 

Amendment to the United States Constitution provides that all criminal 

defendants enjoy the right to confront and cross-examine adverse witnesses.” 

Commonwealth v. Rosser, 135 A.3d 1077, 1087 (Pa. Super. 2016) 

(quotation marks and citation omitted). The right of cross-examination, 

however, is not absolute. Id. “[T]he Confrontation Clause guarantees an 

opportunity for effective cross-examination, not cross-examination that is 

effective in whatever way, and to whatever extent, the defense might wish.” 

Id. “The scope and vigor of cross-examination is a matter which falls within 
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the ambit of sound trial strategy to be exercised by trial counsel alone.” 

Commonwealth v. Molina, 516 A.2d 752, 757 (Pa. Super. 1986).

Here, Rain makes no attempt to discuss our Supreme Court’s Williams

decision or analyze it in the context of this case. Indeed, Williams bears no 

relation to the facts of this case. In Williams, our Supreme Court determined 

that the appellant’s trial counsel was ineffective for failing to ask a single 

question on cross-examination of the Commonwealth’s three expert witnesses 

or present expert testimony of their own challenging the Commonwealth’s 

experts. Williams, 141 A.3d at 460-67. In this case, there is no dispute that 

trial counsel cross-examined each of the four witnesses identified by Rain. 

See Rain’s Brief at 63-70.

Rain further takes issue with the extent to which trial counsel crossexamined these witnesses. See id. With respect to Bell, Rain asserts that 

trial counsel should have questioned him regarding the fact that Bell only came 

forward with information about Victim’s homicide while he was imprisoned for 

a probation violation. Rain’s Brief at 64. For West, Rain argues that trial 

counsel should have challenged her when she testified that she took a gun to 

her place of employment for personal protection. Id. at 64-65. Rain claims 

that West works at a school where guns are prohibited, and this inconsistency 

in her testimony would have demonstrated that her testimony lacked 

credibility. Id.
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The record reflects that trial counsel conducted significant, in-depth 

cross-examinations of both Bell and West. See N.T., 6/13/2019 (A.M 

session), at 119-57; N.T., 6/13/2019 (P.M. session), at 28-43. During the 

cross-examination of both witnesses, trial counsel identified their biases and 

attacked their credibility, given that they were granted immunity in exchange 

for their testimony against Rain. See id. Indeed, the first question trial 

counsel asked of Bell pertained to his probation violation. N.T., 6/13/2019 

(P.M. session), at 28-29. With respect to West, Rain provides no citation to 

the record or evidentiary support for his assertion that West works at a school 

where guns are prohibited. Further, he fails to explain how trial counsel’s 

decision not to cross-examine West as to this singular detail would have 

changed the outcome of the trial, when the record reveals that trial counsel 

repeatedly attacked both her and Bell’s credibility throughout crossexamination.

As to Detective Chmura, Rain argues that trial counsel was ineffective 

for failing to question him on his failure to follow Captain Martwinski’s directive

to follow up on leads regarding Owens as suspect. Rain’s Brief at 66-67. He 

also contends that trial counsel was ineffective for failing to cross-examine 

Captain Martwinski on his “embellished/exaggerated statements of fact in the 

initial criminal complaint,” and his testimony regarding whether security 

footage and pictures from TnT Bar showed that Rain was carrying and 

concealing a firearm. Id. at 68.
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At the outset, we observe that trial counsel did, in fact, cross-examine 

Captain Martwinski regarding the criminal complaint. See N.T., 6/13/2019 

(A.M. session), at 33-38. Second, neither Detective Chmura, Captain 

Martwinski, nor Owens testified at Rain’s PCRA hearing. Thus, there is nothing 

in the record that indicates what Rain’s desired lines of questioning would have 

revealed or how it may have changed the outcome of trial. See Pursell, 724 

A.2d at 306. Rain’s argument relating to trial counsel’s performance during 

his cross-examination of Detective Chmura and Captain Martwinski amounts 

to nothing more than vague, speculative, and bald assertions of 

ineffectiveness. See Sandusky, 203 A.3d at 1044. Rain once again asks this 

Court to presume that trial counsel’s cross-examination of Detective Chmura

and Captain Martwinski was prejudicial because trial counsel did not ask the 

questions he believes trial counsel should have asked. However, Rain was not 

entitled to cross-examination of these, or any other witnesses, in the exact 

way or to the extent he desired. See Rosser, 135 A.3d at 1087. Accordingly, 

because Rain has not established that he was prejudiced by trial counsel’s 

allegedly deficient cross-examination of Bell, West, Detective Churma, and 

Captain Martwinski, this claim dose not entitle him to relief. See Reid, 259 

A.3d at 405.

Ineffective Assistance of Counsel – Waived Claims

For issues identified as 6 through 10, Rain raises myriad ineffective 

assistance of counsel claims. See Rain’s Brief at 70-83. These claims relate 
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to trial counsel’s failure to ensure Rain’s presence in the courtroom when, 

during deliberations, the jury raised a question for the court; trial counsel’s 

decision not to file a petition for habeas corpus or a bill of particulars on Rain’s 

behalf; trial counsel’s decision not to file a motion in limine to preclude Wiley 

from testifying at trial; trial counsel’s failure to respond to the 

Commonwealth’s motion in limine and to request a continuance to investigate 

the shooting of Victim’s home that occurred three to four months prior to his 

murder; and trial counsel’s reference to Rain’s “code of silence” during closing 

argument to explain why Rain did not identify anyone else as Victim’s killer. 

See id. At no point in his recitation of issues 6 through 10 does Rain cite a 

single authority in support of his claims. See id. Further, the entirety of his 

claims amount to nothing more than vague and speculative assertions of trial 

counsel’s ineffectiveness, with no explanation or argument, other than 

conclusory statements claiming that trial counsel’s stewardship of the case 

lacked a reasonable basis or caused prejudice to Rain. See id.

“The Rules of Appellate Procedure ... state unequivocally that each 

question an appellant raises is to be supported by discussion and analysis of 

pertinent authority.” Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. 

Super. 2020) (citation omitted). “This Court will not consider an argument 

where an appellant fails to cite to any legal authority or otherwise develop the 

issue.” In re C.R., 113 A.3d 328, 336 (Pa. Super. 2015). The failure to 

include citations to relevant authority constitutes waiver of the issue on 
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appeal, as it is not the role of this Court to develop an appellant’s argument 

where the brief provides mere cursory legal discussion. Commonwealth v. 

Johnson, 985 A.2d 915, 924-25 (Pa. 2009).

Rain has failed to properly develop issues 6 through 10 in a manner 

capable of meaningful appellate review. We therefore find these claims 

waived.

Order affirmed.

DATE: 5/31/2024