J-S33026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JEFFREY PALMER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2738 EDA 2019

Appeal from the PCRA Order Entered August 29, 2019

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

No(s): CP-51-CR-0002288-2015

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

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 14, 2020

Jeffrey Palmer (Appellant) appeals from the order dismissing his petition 

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

A prior panel of this Court summarized the facts and procedural history:

On July 19, 2014, residents of the 6000 block of North 

Beechwood Street held a block party. At around 11 

p.m., while the party was winding down, Malik Hairston 

heard several men yelling, ‘where gray tank top at?’ 

Around the same, [sic] Octavious Thornton, also 

known as ‘Ta,’ wearing a gray tank top, was outside 

his mother’s house at [the] 6088 block of North 

Beechwood Street. While Thornton was moving tables 

and chairs from the party into the house, a group of 

men approached. One of the men said, ‘let me holler 

at you,’ in which Thornton replied, ‘I don't know you 

from a can of paint.’ Another male in the group asked 

Thornton, ‘What’s up? What’s up?’ Then a man in a 

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* Former Justice specially assigned to the Superior Court.
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red polo shirt advised Thornton, ‘It's just a yes or no 

question.’ As Thornton walked away and made his way 

into the house, the group of men grabbed him from the 

porch steps, and began punching him. More men soon 

gathered, and up to ten or twelve men punched 

Thornton and pulled him into the street. Thornton 

placed his back against a car and covered his body with 

his arms to protect himself from the barrage of 

punches.

Thornton’s mother, sister (Daria), and Hairston, 

attempted to intervene. After Hairston struck one 

man, and pulled him off Thornton, the group of men 

attacked Hairston. Hairston grabbed a rake and swung 

it at some of the attacking men. After Hairston swung 

the rake, a voice among the attacking men yelled, 

‘Shoot that n*gger.’ Immediately thereafter, gunshots 

rang out. To avoid being shot, Hairston ran into the 

house at [the] 6088 block of North Beechwood through 

the front door. He was the only person who fled into 

the house. After firing the shots, the shooter jumped 

into a gray vehicle and drove off.

Thornton told police that the shooter had a revolver, 

and described him as a black male, dark skin, 25 years 

old, wearing a red polo shirt, approximately 5′ 6′′ to 5′ 

8′′, with a stocky build. Thornton’s sister Daria also 

stated that the shooter wore a red shirt. She further 

testified that no one else involved in the fight had a red 

shirt on. Following the shooting, both Thornton and 

Hairston identified [Appellant] from a photographic 

array as the male in the red polo shirt.

Almost immediately following the shooting, at or 

around 11:20 p.m., Police Officer James Butler saw a 

silver vehicle speeding southbound on Ogontz Avenue, 

about six to eight blocks from the shooting on 

Beechwood. Officer Butler and Officer Mark Austin 

attempted to pursue the vehicle, but lost sight of it.

Not long after Officer Butler first spotted the speeding 

vehicle on Ogontz Avenue, a security guard at Albert 

Einstein Hospital—just a few blocks from Ogontz 

Avenue—heard tires screeching and witnessed a gray 
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vehicle speeding up the hospital’s emergency 

entrance. After the vehicle appeared to hit a guardrail, 

the passenger side window lowered, and the vehicle 

backed up and drove off. When a security guard 

inspected the guardrail for damage, he saw a gun lying 

nearby in the grass.

Roughly a minute after losing sight of the vehicle on 

Ogontz Avenue, Offices Butler and Austin responded to 

Einstein Hospital for a report of a gunshot victim, later 

identified as Thomas Fields, who had just arrived. 

Fields was pronounced dead at 11:40 p.m. The cause 

of death was a gunshot wound to the neck and the 

manner of death was homicide. A bullet entered the 

right side, upper back, near the neck. It traveled 

through the neck, striking the cervical spine, and 

perforated the right vertebral arteries, which provide 

blood to the brain. The bullet exited the front of the 

neck.

Upon their arrival at the hospital, Officers Butler and 

Austin noticed the same vehicle that they had just 

observed speeding on Ogontz parked in front of the ER. 

The passenger door was ajar, and a large amount of 

blood was on the vehicle’s interior. The officers 

secured the vehicle, believing that it was a crime 

scene. Blood was subsequently found on the vehicle’s 

seat, armrest, floor, door panel, and console. The front 

passenger side wheel was also flat.

Officer Austin then entered the hospital to locate the 

driver of the silver/gray vehicle. In the ER lobby, he 

found [Appellant] exiting the bathroom. There, 

[Appellant] informed the officer that an altercation 

took place at a cookout and someone there was shot. 

The police later took [Appellant] to the Homicide Unit 

for questioning.

On July 20, 2014, [Appellant] gave a statement to 

police, in which he told detectives that he was present 

when a shooting occurred at Beechwood. He said that 

he saw a fight break out at a block party and then 

heard gunshots. He also said that after the gunshots, 

Fields, his friend, said to him that he could not 
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breath[e]. [Appellant] stated that Fields had asthma. 

He claimed that after he and Fields got into his car to 

drive to the hospital, Fields coughed up blood.

Police later recovered a security video from Einstein 

Hospital. On the night of the shooting, at 

approximately 11:25:28, the camera captured 

[Appellant’s] vehicle driving up to the hospital’s 

emergency room ramp. At 11:26:14, the video 

showed [Appellant’s] vehicle, both doors open, pulling 

up outside the ER. [Appellant] existed [sic] the vehicle 

wearing a red polo shirt. Roughly thirty seconds later, 

[Appellant] removed the shirt, and threw it over a 

guardrail past where his vehicle was parked. A few 

minutes later, [Appellant] retrieved the shirt and 

tossed it into the trunk of the vehicle.

The police later recovered the gun that was lying near 

the hospital guardrail. The gun, a revolver, held two 

fired cartridge casing (“FCCs”) and three live rounds—

all of which were .38 caliber and of the same 

manufacture. A total of four ballistic pieces were 

recovered from the shooting scene at 6088 North 

Beechwood Street, including two copper fragments 

found on the property, a lead fragment in the outside 

wall near the doorframe, and a projectile in the front 

door, five inches south of the doorknob. Officer 

Raymond Andrejczak, of the Police Firearms 

Identification Unit, concluded to a reasonable degree 

of scientific certainty that both copper fragments, the 

projectile, and both FCCs in the gun were all fired in 

and from the subject revolver. The remaining piece 

(the lead fragment) was unsuitable for microscopic 

comparison, but was consistent with a 9 millimeter/.38 

caliber projectile. The subject revolver was incapable 

of firing a 9 millimeter bullet.

Trial Court Opinion, 4/18/16, at 2–5 (record citations omitted).

On August 4, 2014, police arrested Appellant for the murder of 

Fields. After a January 28, 2016 trial, a jury found Appellant guilty 

of [first-degree murder, attempted murder, unlawful possession 
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of a firearm, and possession of an instrument of crime.

1] The trial 

court [immediately sentenced Appellant to life in prison without

parole]. On January 29, 2016, Appellant filed a post-sentence 

motion challenging the weight and sufficiency of the evidence. 

The trial court denied that motion on February 11, 2016. 

Commonwealth v. Palmer, 861 EDA 2016, at *1-4 (Pa. Super. May 17, 

2017) (unpublished memorandum). Appellant filed a timely appeal. This 

Court affirmed his judgment of sentence on May 17, 2017, see id., and the 

Pennsylvania Supreme Court denied Appellant’s petition for allowance of 

appeal on January 3, 2018. Commonwealth v. Palmer, 285 EAL 2017 (Pa. 

Jan. 3, 2018).

On December 20, 2018, Appellant filed a pro se PCRA petition.

2

 See 

Motion for Post Conviction Collateral Relief, 12/20/18, at 4. The PCRA court 

appointed PCRA counsel for Appellant, who filed an amended petition on 

December 31, 2018. In his amended petition, Appellant raised various claims 

of ineffective assistance of counsel. On July 9, 2019, the Commonwealth filed 

a motion to dismiss Appellant’s PCRA petition. The PCRA court issued notice 

of its intent to dismiss Appellant’s petition without a hearing pursuant to Rule

907 of the Pennsylvania Rules of Criminal Procedure on July 23, 2019. 

Appellant filed a timely response to the PCRA court’s Rule 907 notice on 

August 9, 2019. On August 29, 2019, the PCRA court dismissed Appellant’s 

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1 18 Pa.C.S.A. §§ 2502(a), 901, 6106 and 907.

2 On the same date, Appellant’s trial counsel filed a separate PCRA petition on 

Appellant’s behalf. Because Appellant’s trial counsel was not appointed to 

represent Appellant through his collateral proceedings, the PCRA court did not 

consider this filing or any of the claims raised therein.
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petition. Appellant timely appealed to this Court. The PCRA court did not 

order Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 1925, and Appellant did 

not file one.

On appeal, Appellant presents four issues for our review:

1. Did the lower court err by dismissing Appellant’s PCRA Petition 

without [a] hearing where trial counsel was ineffective for 

failing to object to the lower court’s erroneous vital body part 

instruction?

2. Did the lower court err by dismissing Appellant’s PCRA Petition 

without [a] hearing where trial counsel was ineffective for 

failing to object to the lower court’s accomplice liability 

instruction?

3. Did the lower court err by dismissing Appellant’s PCRA Petition 

without [a] hearing where trial counsel was ineffective for 

failing to move to suppress the identifications in Appellant’s 

case?

4. Did the lower court err by dismissing Appellant’s PCRA Petition 

without [a] hearing where trial counsel was ineffective for 

presenting a closing argument that confused the issues, was 

prejudicial, and unrelated to [Appellant’s] case?

Appellant’s Brief at 2 (suggested answers omitted).

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and 

citations omitted). “To be entitled to PCRA relief, [an] appellant must 

establish, by a preponderance of the evidence, [that] his conviction or 
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sentence resulted from one or more of the enumerated errors in 42 

Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

All four of Appellant’s claims assert instances of ineffective assistance of 

trial counsel (Counsel). With respect to ineffective assistance of counsel 

claims, our Supreme Court has stated:

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. Commonwealth v. Cooper, 941 A.2d 

655, 664 (Pa. 2007). 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.” Id. A 

PCRA petitioner must address each of these prongs on appeal. 

See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 

2007) (explaining that “appellants continue to bear the burden of 

pleading and proving each of the Pierce elements on appeal to 

this Court”). A petitioner’s failure to satisfy any prong of this test 

is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations 

modified).

Vital Body Part Instruction: Failure to Object

In his first ineffectiveness claim, Appellant argues that Counsel was 

ineffective for failing to object to the trial court’s “erroneous” jury instruction 

regarding the “use of a deadly weapon on the ‘victim’s body’ without clarifying 

that the victim could only be the intended target.” Appellant’s Brief at 9. 

Appellant contends that Counsel should have objected to the vital body part 
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jury instruction, asserting that the jury was misled into believing that they 

could infer specific intent3through the use of a deadly weapon on a vital body 

part despite the Commonwealth’s evidence reflecting transferred intent.4 Id.

With respect to jury instruction challenges, our Supreme Court has held:

When reviewing a challenge to jury instructions, the reviewing 

court must consider the charge as a whole to determine if the 

charge was inadequate, erroneous, or prejudicial. The trial court 

has broad discretion in phrasing its instructions, and may choose 

its own wording so long as the law is clearly, adequately, and 

accurately presented to the jury for its consideration. A new trial 

is required on account of an erroneous jury instruction only if the 

instruction under review contained fundamental error, misled, or 

confused the jury.

Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009) (internal 

citations and quotations omitted).

Here, the trial court instructed the jury that it could “infer that the 

defendant had the specific intent to kill” if they believed “that the defendant 

intentionally used a deadly weapon on a vital part of the victim’s body.” N.T., 

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3

In order to sustain a conviction for first-degree murder, the Commonwealth 

must prove: 1) the defendant acted with a specific intent to kill; 2) a human 

being was unlawfully killed; 3) the person accused did the killing; and 4) the 

killing was done with deliberation. 18 Pa.C.S.A. § 2502(d). The use of a 

deadly weapon upon a vital part of the victim’s body is sufficient to prove the 

specific intent required for a conviction of first-degree murder. 

Commonwealth v. Hall, 701 A.2d 190, 196 (Pa. 1997).

4 “Pursuant to the doctrine of transferred intent, the intent to murder may be 

transferred where the person actually killed is not the intended victim.” 

Commonwealth v. Jones, 912 A.2d 268, 279 (Pa. 2006) (citing 18 Pa.C.S.A. 

§ 303(b)(1)).
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1/28/16, at 136-37. The court also instructed the jury that it could find 

specific intent through the doctrine of transferred intent:

Because the Commonwealth has alleged while the defendant 

intended to kill or actually conspired with the intent to kill Malik 

Hairston, he actually caused the death of Thomas Fields.

If you find beyond a reasonable doubt that the defendant intended 

to kill or conspired or was an accomplice with the intent to kill 

Malik Hairston, and was acting with that intent at the time that he 

killed Thomas Fields, you may find that the defendant acted with 

the specific intent to kill under what the law calls the doctrine of 

transferred intent.

What this means is that if the actual result that the defendant 

intended differs from what he contemplated, only because a 

different person than the one actually intended was killed, the 

element of causing the death with specific intent to kill is still 

established. 

Id. at 137-38. 

Appellant believes that the jury could only infer specific intent to kill 

from the use of a deadly weapon on a vital part of the victim’s body if the 

actual victim was the intended victim. This argument fails. In 

Commonwealth v. Jones, 912 A.2d 268 (Pa. 2006), our Supreme Court

addressed an identical argument. In rejecting the appellant’s claim, the Court 

concluded, “[t]he very purpose of the transferred intent instruction is to 

permit appropriate inferences of malice and specific intent to flow to an 

unintended victim.” Id. at 280. In the present case, the facts establish that 

Appellant intended to kill Hairston and that he possessed both the malice and 

the specific intent to do so. “Transferring this intent to an unintended victim 

is permitted by statute and easily meets the requirement of a rational 
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connection between the proven facts and the inference.” Id. Thus, 

Appellant’s claim lacks arguable merit and his first assertion of ineffective 

assistance of counsel fails.

Accomplice Liability Instruction: Failure to Object

In his second ineffectiveness claim, Appellant contends that Counsel was 

ineffective for failing to object to the trial court’s jury instruction on accomplice 

liability because “there was no evidence of a second shooter or accomplice 

introduced at trial” and “[i]n the absence of any evidence of another shooter 

or accomplice, . . . the addition of the accomplice liability charge served no 

purpose but to confuse the jury on the issues.” Appellant’s Brief at 20-21.

The trial court instructed as follows:

Now, there is a second and separate way in which a defendant can 

be proved liable for conduct of another person or persons. This is 

when the defendant is an accomplice of the person who actually 

commits the crime. There is a basic difference between being an 

accomplice and being a conspirator.

In a conspiracy people have to act jointly. To be an accomplice, 

a person does not have to agree to help someone else. The person 

is an accomplice if he on his own acts to help the other person 

commit a crime. More specifically, the defendant is an accomplice 

of another for a particular crime if the following two elements are 

proved beyond a reasonable doubt: That the defendant had the 

intent of promoting or facilitating the commission of the crime; 

and that the defendant solicits, commands, encourages or 

requests the other person to commit the crime; or aids, agrees to 

aid or attempts to aid the other person in planning or committing 

it.

It is important to understand that a person is not an accomplice 

merely because he is present where the crime is committed or 

knows that a crime is being committed. A person who is an 

accomplice will not be responsible for a crime, if and only, if the 
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person, before the other person commits the crime either stops 

his own efforts to promote or facilitate the commission of the 

crime and wholly derives his previous efforts of the effectiveness 

in the commission of the crime, or gives timely warning to law 

enforcement authorities, or otherwise makes a proper effort to 

prevent the commission of crime.

Now I’ve just given you the general rules of how a person can be 

responsible for a crime that was committed by another. There are 

special rules for the crime of first degree murder which is one of 

the crimes charged here. . . .

* * *

A person can also be guilty of the death personally when the 

Commonwealth proves beyond a reasonable doubt that he was an 

accomplice. Remember, to be an accomplice, the defendant must 

have been intended that a first degree murder occurred and that 

the defendant solicits, commands, encourages or requests the 

other person to commit it, or aids, agrees to aid, or attempts to 

aid the other person in planning or committing.

 

To sum up, a defendant may not be found guilty of the crime of 

first degree murder where the defendant himself, as a conspirator 

or as an accomplice, has the specific intent or goal of bringing 

about a murder in the first degree.

N.T., 1/28/16, at 125-28.

According to Appellant, this accomplice liability instruction served no 

purpose “but to confuse the jury on the issues.” Appellant’s Brief at 21. The 

Commonwealth argues that Appellant’s claim completely disregards that the 

evidence at trial established that, although the Commonwealth argued that 

Appellant was the shooter, additional evidence was presented “from which the 

jury could have found that [Appellant] was an accomplice to another person 

who was the shooter; namely, that the shots were fired from a crowd of 

approximately ten of [Appellant’s] cohorts who were beating Thornton.” 
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Commonwealth’s Brief at 14. The Commonwealth further contends that 

defense counsel alluded throughout trial and during closing argument to the 

possibility that somebody else was the shooter. Id. (citing N.T., 1/25/16, at 

139; N.T., 1/18/16, at 52, 135-37).

The record supports the Commonwealth’s position that Appellant’s 

conviction for first-degree murder was premised on two theories: Appellant 

was the shooter; or Appellant was an accomplice to another person who was 

the shooter. There is no factual predicate to Appellant’s argument that the 

trial court improperly gave an accomplice liability instruction or that the 

instruction confused the jury on the issues. As such, Appellant cannot prevail 

on his claim that Counsel was ineffective for failing to object to this charge.5

Motion to Suppress

In his third ineffectiveness claim, Appellant asserts that the trial court 

was ineffective for failing to file a motion to suppress the pre-trial 

identifications of Appellant by Hairston and Thornton. Appellant’s Brief at 22. 

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5

In a footnote, Appellant raises an alternative argument, suggesting that “if 

this Court finds that [trial counsel’s] objection was sufficient to preserve the 

issue for appellate review, then Appellant respectfully avers that [trial counsel] 

was ineffective as appellate counsel for failing to raise this meritorious claim 

on direct appeal.” Appellant’s Brief at 21 n.5. Appellant has failed to develop 

this argument with citation to and analysis of relevant legal authority. 

Accordingly, we find this claim waived. See Pa.R.A.P. 2119(a); see also 

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that 

“where an appellate brief fails to provide any discussion of a claim with citation

to relevant authority or fails to develop the issue in any other meaningful 

fashion capable of review, that claim is waived”).
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According to Appellant, the identifications were “based on an unduly 

suggestive procedure and uncertain and thus should have been suppressed.” 

Id. at 24.

“When . . . an assertion of ineffective assistance of counsel is based 

upon the failure to pursue a suppression motion, proof of the merit of the 

underlying suppression claim is necessary to establish the merit of the 

ineffective assistance of counsel claim.” Commonwealth v. Carelli, 546 

A.2d 1185, 1189 (Pa. Super. 1988) (citations omitted).

An appellate court must assess the reliability of an out-of-court 

identification by examining the totality of the circumstances. 

Commonwealth v. Johnson, 139 A.3d 1257, 1278 (Pa. 2016). The mere 

fact that a witness was unsure about the identification does not mean that 

later identifications were unreliable—initial equivocation does not render later 

identifications constitutionally unreliable per se. Id. A pre-trial identification 

violates due process only when the facts and circumstances demonstrate that 

the identification procedure was so impermissibly suggestive that it gave rise 

to a very substantial likelihood of irreparable misidentification. Johnson, 139 

A.3d at 1278.

The PCRA court found no merit to Appellant’s ineffectiveness claim, 

explaining:

According to the Petitioner, the photo array identification 

procedure used by Homicide Detectives in this case was unduly 

suggestive because the detectives asked the witnesses whether 

they “recognize anyone” in the arrays, and did not inform the 
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witnesses that they were unsure if the suspect’s photo was 

included. The detectives’ questions were not suggestive, as they 

did not direct the witnesses’ attention to a specific photograph nor 

did detectives indicate whether [Appellant’s] photograph was 

included in any array. During Hairston’s interview, Detective Pitts 

and Fetters asked him the following question: “I am showing you 

a photo array, do you recognize anyone?” Detective Harkins and 

Burns asked Thornton a similar question: “I am showing you a 

photograph array consisting of eight like males, do you recognize 

any of these males?” These questions did not suggest to either 

witness that they should choose [Appellant’s] photograph and 

were properly phrased to obtain a reliable identification.

Thornton confirmed at trial that during his interview, he circled 

[Appellant’s] photograph, identifying him as the shooter. While 

Hairston testified at trial that detectives forced him to circle 

[Appellant’s] photo, Detective Fetters denied this coercion, and 

the jury chose to accept Detective Fetters’ testimony.

PCRA Court Opinion, 8/29/19, at 6-7 (citations omitted).

Further, the PCRA court rejected Appellant’s attempt to attack the 

detectives’ failure to follow the Philadelphia Police Department’s “double blind 

procedure” for conducting photo arrays. The court explained:

This argument is illogical. As [Appellant] establishes in his 

Amended Petition, the detectives could not have violated these 

guidelines because they were not put into practice until November 

2014, more than four months after Thornton and Hairston were 

interviewed. [Appellant] cannot fault the Homicide Detectives for 

failing to follow a procedure that had not been implemented at the 

time of the identification. 

Id. at 7.

Given these determinations, the PCRA court concluded that Appellant 

failed to establish that a motion to suppress Thornton and Hairston’s 

identification of Appellant would have been successful, and trial counsel 

cannot be found ineffective for failing to file such a motion.
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The record supports the PCRA court’s conclusions that any attempt to 

suppress Thornton or Hairston’s identification testimony would be meritless. 

The PCRA court recognized that the jury credited the testimony of Detective 

Fetters over the testimony of Hairston, in which he alleged coercion by the 

detectives. We cannot disturb this determination. See Commonwealth v. 

Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility 

determinations are solely within the province of the PCRA court). Accordingly, 

because Counsel cannot be deemed ineffective for failing to file a meritless 

suppression motion, Appellant’s third issue fails. See Commonwealth v. 

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc) (explaining that 

counsel cannot be deemed ineffective for failing to pursue a meritless claim).

Closing Argument

In his fourth and final ineffectiveness claim, Appellant argues that 

Counsel was ineffective because his closing arguments “confused the issues 

for the jury, prejudiced Appellant, and was unrelated to Appellant’s case.” 

Appellant’s Brief at 30. Specifically, during closing arguments, Counsel read 

a poem to the jury to provide an example of reasonable doubt. See N.T., 

1/28/16, at 68-71. Appellant contends that the “strangeness of counsel’s 

ending to his closing argument likely undermined the entirety of his closing, 

and any arguments made on [Appellant’s] behalf.” Appellant’s Brief at 32.

The PCRA court rejected Appellant’s claim of Counsel’s ineffectiveness, 

finding that it failed to demonstrate prejudice. The court noted that Counsel’s 
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example properly illustrated the concept for reasonable doubt, and was not a 

misstatement of the law. PCRA Court Opinion, 8/29/19, at 10. Moreover, the 

court emphasized that, following closing arguments, it instructed the jury to 

only use the court’s instructions to assist in their deliberations, and cautioned 

the jury that counsel’s arguments were not facts nor law. Id. (citing N.T., 

1/28/16, at 22, 71). The PCRA court concluded that because Counsel’s 

definition was an accurate statement of the law and the jury was cautioned to 

only consider the law as explained by the court, Appellant was not prejudiced 

by Counsel’s inclusion of the poem. Id.

As we stated above, “counsel is presumed to have been effective and 

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

ineffectiveness.” Wholaver, 177 A.3d at 144. Further, “[w]ith regard to 

‘reasonable basis,’ the PCRA court ‘does not question whether there were 

other more logical courses of action which counsel could have pursued; rather, 

[the court] must examine whether counsel’s decisions had any reasonable 

basis.’” Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014). “Where 

matters of strategy and tactics are concerned, ‘[a] finding that a chosen 

strategy lacked a reasonable basis is not warranted unless it can be concluded 

that an alternative not chosen offered a potential for success substantially 

greater than the course actually pursued.’” Commonwealth v. Spotz, 84 

A.3d 294, 311–12 (Pa. 2014). 
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Here, although Appellant may not agree with the strategy pursued by 

Counsel during closing arguments, he has failed to establish that Counsel was 

ineffective. The record supports the PCRA court’s conclusion that Counsel’s 

closing argument was an accurate statement of law, and the jury was properly 

instructed to only consider the court’s instructions and definitions during their 

deliberation. As such, Appellant’s fourth and final claim of ineffective 

assistance of counsel fails.

As discussed above, Appellant has not demonstrated that any of his 

individual claims of ineffective assistance of counsel have merit. Accordingly, 

because we find no merit to Appellant’s issues, we conclude that the PCRA did 

not err in dismissing Appellant’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/14/20