J-S04031-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JERMAINE SMITH

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2107 EDA 2022

Appeal from the PCRA Order Entered August 8, 2022

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

No(s): CP-51-CR-0009568-2010

BEFORE: BOWES, J., STABILE, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED APRIL 10, 2024

Jermaine Smith (“Smith”) appeals from the order denying his timely, 

first Post Conviction Relief Act1 (“PCRA”) petition. We affirm.

The Commonwealth charged Smith with fatally shooting Isaac Nesmith 

(“the victim”) at close range, while the victim sat in the driver’s seat of a van. 

The victim was able to drive a short distance away, but he was declared dead 

at the scene. At trial, Smith was represented by J. Michael Farrell, Esquire 

(“Trial Counsel”).

At trial, the Commonwealth called Richard Broady, who testified that 

shortly before the shooting, he was in the van with the victim, Thomas Spence, 

and Trabit Green. Broady went to a store across the street, and while he was 

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1 See 42 Pa.C.S.A. §§ 9541-9546.
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exiting the store, he heard gunshots, looked across the street to the van, and 

saw someone wearing a hoodie run into the alley. Broady testified he did not 

see the person’s face and could not identify him. The Commonwealth, 

however, confronted Broady with: (1) his two prior statements to homicide

detectives, in which he stated he saw Smith, known as “Maniac,” standing 

next to the van and shooting into the van; as well as (2) Broady’s testimony 

at the preliminary hearing — that at the time of the gunshots, he saw Smith, 

whom he had known a “couple years,” standing next to the van and then 

running through the alley. N.T. Trial Vol. II, 9/11/12, at 186, 216, 234.

The Commonwealth also called Spence, who testified he was in the rear 

seat of the van, the victim was in the driver’s seat, and no one else was in the 

van. Spence further testified that when he heard gunshots, he “got down”

and did not see the shooter, and that when the victim “pulled off” the van, the 

victim stated only, “Can’t see.” N.T. Trial Vol. III, 9/12/12, at 43-45. Spence 

denied he knew Smith. The Commonwealth then confronted Spence with the 

statements he previously gave to detectives: that Trabit Green was also in the 

van, and after the gunshots, the victim said, “Maniac shot me.” Id. at 66-67.

Smith did not testify at trial, and presented a few exhibits as evidence. 

He argued: there was no physical evidence linking him to the shooting; instead 

the homicide detectives’ investigation was based solely on information given 

by an anonymous confidential informant (the “CI”); and the detectives 

threatened Broady and Spence into naming him as the shooter.
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The jury found Smith guilty of murder in the first degree and possessing 

instruments of crime2 (“PIC”). Immediately thereafter, the trial court imposed 

a sentence of life imprisonment without parole for murder, with no further

penalty for PIC.

Still represented by Trial Counsel, Smith filed a direct appeal. This Court 

affirmed his judgment of sentence, and the Pennsylvania Supreme Court 

denied his petition for allowance of appeal. See Commonwealth v. Smith, 

106 A.3d 155 (Pa. Super. 2014) (unpublished memorandum), appeal denied, 

110 A.3d 997 (Pa. 2015).

Smith then filed a pro se timely, first PCRA petition. Teri Himebaugh, 

Esquire (“PCRA Counsel”), entered her appearance to represent him, and she 

filed an amended PCRA petition, raising several allegations of Trial Counsel’s 

ineffective assistance.3 PCRA Counsel also attached an affidavit, purportedly

from Green, the third passenger in the van, which stated Trial Counsel did not 

contact him, but furthermore that he saw the shooter for a “split second” and 

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2 See 18 Pa.C.S.A. §§ 2501(a)(1), 907(a), respectively.

3 The amended PCRA petition also raised a claim that Smith was denied his 

right to effective assistance of counsel, where Trial Counsel was under federal 

investigation for participating in organized drug trafficking activity. At the 

PCRA hearing, Trial Counsel testified he was convicted in federal court of 

money laundering, tampering with a witness, and tampering with an official 

proceeding, and he lost his law license in April 2017. On appeal, Smith has 

abandoned this issue.
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did not know who the shooter was. See Smith’s Amended Motion for Post 

Conviction Relief, 3/4/18, Exhibit P2.

The PCRA Court convened a limited evidentiary hearing on, inter alia,

Smith’s claim that Trial Counsel was ineffective for not interviewing or calling 

Green to testify. Although Green was subpoenaed to testify, he did not appear 

that day, and thus Smith could not present him as a witness. Nevertheless, 

the PCRA court stated it would consider this claim on the basis of the filed

amended petition. The PCRA court then heard testimony from Smith and Trial 

Counsel on the issue of Trial Counsel’s preparation for trial, as well as what 

Trial Counsel told Smith concerning his right to testify.4

On August 8, 2022, the PCRA court issued the underlying order, denying 

relief on Smith’s amended PCRA petition.5 Smith filed a timely notice of appeal 

and a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal, and the PCRA court filed an opinion.

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4 The PCRA court initially stated it would not hear testimony concerning 

Smith’s claim that Trial Counsel was ineffective for advising him not to testify 

at trial, but it would also consider this issue on the basis of the filed amended 

petition. Both Trial Counsel and Smith, however, did give testimony about 

their conversation on this issue, which the PCRA court ultimately permitted.

5 We note the relatively long passage of time, between: Smith’s May 2016 pro 

se PCRA petition; PCRA Counsel’s August 2017 entry of appearance; the March 

2018 filing of the counseled amended PCRA petition; the Commonwealth’s 

April 2019 motion to dismiss the amended petition; and the August 2022 

evidentiary hearing. In total, more than six years lapsed between the filing 

of the pro se petition and the PCRA court’s order dismissing it.
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While the appeal was pending, PCRA Counsel filed a petition to withdraw 

from representation, explaining Smith no longer wished for her to represent 

him. This Court granted the petition, and present counsel, Lonny Fish, 

Esquire, entered his appearance. Attorney Fish then filed a petition for 

remand, so that he could file an amended Rule 1925(b) statement that raised

new issues of PCRA Counsel’s alleged ineffectiveness. See Commonwealth 

v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (holding “that a PCRA petitioner 

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”). This Court granted the relief sought.

On remand, Smith filed an amended Rule 1925(b) statement, raising 

issues related to both his prior claims of Trial Counsel’s ineffective assistance, 

as well as new claims of PCRA Counsel’s ineffectiveness for not raising 

additional claims of Trial Counsel’s ineffectiveness. The PCRA court issued a 

Rule 1925(a) supplemental opinion, addressing all of these claims.

Smith presents the following issues for our review:

1. The PCRA Court erred in finding that . . . Smith’s rights pursuant

to the 6th and 14th Amendments [to] the U.S. Constitution and 

Article 1, § 9 of the Pennsylvania Constitution were not violated 

by Trial Counsel’s ineffective advice that Smith not testify on his 

own behalf, thereby making Smith’s waiver unknowing and 

unintelligent.

2. The PCRA Court erred in finding that Smith’s rights pursuant to 

the 5th, 6th[,] and 14th Amendments [to] the U.S. Constitution 

and Article 1, § 9 of the Pennsylvania Constitution were not 

violated based on after-discovered evidence of an unconstitutional 

pattern, practice and custom by Philadelphia homicide detectives.
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3. The PCRA Court erred in finding that Smith’s constitutional 

rights under the 6th and 14th amendments [to] the U.S. 

Constitution and Article 1, § 9 of the Pennsylvania Constitution 

were not violated by [Trial Counsel’s] failure to preserve at trial 

and argue on direct appeal that trial court erred by not finding 

that the Commonwealth improperly withheld the existence and 

identity of a [CI] and violated Smith’s rights under the 

Confrontation Clause when it denied the defense request for a 

hearing where the CI could be questioned as to the source of his 

information about the case. 

4. The PCRA Court erred in finding that Smith’s constitutional 

rights under the 6th and 14th Amendments [to] the U.S. 

Constitution and Article 1, § 9 of the Pennsylvania Constitution 

were not violated by [T]rial [C]ounsel’s failure to object to the 

prosecutor’s improper opening and closing arguments.

5. Pursuant to Bradley, 261 A.3d 381 . . . , PCRA [C]ounsel was 

ineffective by failing to argue in [the amended PCRA] petition that 

Smith’s rights pursuant to the 6th and 14th Amendments [to] the

U.S. Constitution and Article 1, § 9 of the Pennsylvania 

Constitution were violated by [T]rial [C]ounsel’s ineffectiveness 

for stipulating to the authenticity of an edited compilation video of 

security footage and their failure to object and/or to make a

motion to exclude said video recordings and any compilation of 

footage used by the Commonwealth at trial to convict . . . Smith.

6. Pursuant to . . . Bradley, 261 A.3d 381 . . . , PCRA [C]ounsel

was ineffective by failing to argue in [the amended PCRA] petition 

that Smith’s rights pursuant to the 6th and 14th Amendments [to] 

the U.S. Constitution and Article 1, § 9 of the Pennsylvania 

Constitution were violated by [T]rial [C]ounsel’s ineffectiveness 

for having . . . Smith stand up in court for identification purposes. 

The trial took place an estimated two years after the alleged 

incident and . . . Smith’s weight and body size had changed. . . . 

Smith was 225 lbs on or around the date of offense and at trial he 

weighed 290 lbs. Additionally the man on the footage was wearing 

a black jacket/hoodie and that could have made them look as big 

as . . . Smith during the in-court identification.

7. Pursuant to . . . Bradley[,] 261 A.3d 381 . . . , PCRA [C]ounsel 

was ineffective by failing to argue in [the amended PCRA] petition 

that Smith’s rights pursuant to the 6th and 14th Amendments [to] 
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the U.S. Constitution and Article 1, § 9 of the Pennsylvania 

Constitution were violated by [T]rial [C]ounsel’s ineffectiveness 

for failing to effectively cross-examine Commonwealth’s 

witness . . . Bro[a]dy regarding inconsistencies between their

statements and the surveillance video referenced previously.

8. Pursuant to . . . Bradley[,] 261 A.3d 381 . . . , PCRA [C]ounsel 

was ineffective by failing to argue in [the amended PCRA] petition 

that Smith’s rights pursuant to the 6th and 14th Amendments [to] 

the U.S. Constitution and Article 1, § 9 of the Pennsylvania 

Constitution were violated by [Trial Counsel’s] ineffectiveness for 

failing to raise issues preserved during jury selection.

9. Pursuant to . . . Bradley[,] 261 A.3d 381 . . . , PCRA [C]ounsel 

was ineffective by failing to argue in [the amended PCRA] petition 

that Smith’s rights pursuant to the 6th and 14th Amendments [to] 

the U.S. Constitution and Article 1, § 9 of the Pennsylvania 

Constitution were violated by Trial Counsel’s failure to call fact 

witness . . . Green who was at the scene of the shooting but was 

not called to testify.

10. The PCRA Court erred in finding that the cumulative impact of

multiple instances of ineffective assistance of counsel did not 

deprive Smith of his due process rights under the 14th 

Amendment [to] the U.S. Constitution and the broader protections 

of the Pennsylvania Constitution.

Smith’s Brief at 5-8 (unnecessary capitalization omitted).

Preliminarily, we address the large number of claims raised on appeal

by Smith’s present counsel, Attorney Fish, and note with displeasure that 

counsel largely fails to address the PCRA court’s well-reasoned analyses. We 

remind counsel of “the importance of expert, focused appellate advocacy.

While criminal defendants often believe that the best way to pursue their 

appeals is by raising the greatest number of issues, actually, the opposite is 

true: selecting the few most important issues succinctly stated presents the 

greatest likelihood of success.” See Commonwealth v. Ellis, 626 A.2d 1137, 
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1140-41 (Pa. 1993) (citation omitted); see also Commonwealth v. Walker, 

954 A.2d 1249, 1255 (Pa. Super. 2008) (en banc) (stating that “[t]his Court 

is an error correcting court; it is not an error-finding court”).

We set forth the relevant standard of review:

When reviewing the denial of a PCRA petition, we must determine 

whether the PCRA court’s order is supported by the record and 

free of legal error. Generally, we are bound by a PCRA court’s 

credibility determinations. However, with regard to a court’s legal 

conclusions, we apply a de novo standard.

Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018) (citation 

omitted).

With respect to a claim of ineffective assistance of counsel, this Court 

has stated:

It is well-established that counsel is presumed effective[.] To 

prevail on an ineffectiveness claim, the petitioner has the burden 

to prove that (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. The failure to satisfy any one of the prongs 

will cause the entire claim to fail.

Id. at 1174-75. Furthermore, “counsel cannot be deemed ineffective for 

failing to raise a meritless claim.” Id. at 1175.

In his first issue, Smith avers the PCRA court erred in finding Trial 

Counsel was not ineffective for advising him not to testify at trial. This Court 

has explained:

[t]he decision of whether or not to testify on one’s own 

behalf is ultimately to be made by the defendant after 

full consultation with counsel. In order to sustain a claim 
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that counsel was ineffective for failing to advise the 

appellant of his rights in this regard, the appellant must 

demonstrate either that counsel interfered with his right 

to testify, or that counsel gave specific advice so 

unreasonable as to vitiate a knowing and intelligent 

decision to testify on his own behalf.

Additionally, “where a defendant voluntarily waives his right to 

testify after a colloquy, he generally cannot argue that trial 

counsel was ineffective in failing to call him to the stand.”

Commonwealth v. Sandusky, 203 A.3d 1033, 1075 (Pa. Super. 2019) 

(citations omitted).

Smith asserts that Trial Counsel met with him only once before trial, and 

that when Smith stated he had an alibi and asked “whether he should take 

the stand,” “the sum and substance” of counsel’s advice was, “No. I got this.” 

Smith’s Brief at 16, 20. Smith claims, without citation to authority, that “[a]ny 

reasonably experienced criminal defense counsel would agree that most juries 

want to hear from the defendant himself.” Id. at 20. Smith contends that if 

he had testified: (1) not only would the jury have learned he was at a friend’s 

house at the time of the crime and thus could not have been the shooter; but 

also (2) he would have been entitled to an alibi jury charge. Smith concludes 

Trial Counsel had no reasonable basis for advising him not to testify, and he 

was prejudiced, as he would have taken the stand at trial. We conclude no 

relief is due.

Here, the PCRA court denied relief on two bases: (1) Smith was bound 

by the statements he made in his waiver colloquy at trial — that he was 

satisfied with Trial Counsel, and after consultation with counsel, he decided 
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not to testify; and (2) in any event, at the PCRA hearing, both Smith and Trial 

Counsel testified they did “go over the pros and cons of” testifying. See PCRA 

Court Opinion, 3/20/23, at 7-8.

Our review reveals the PCRA court’s analysis is supported by the record. 

First, at trial, the trial court conducted an oral colloquy on the record into 

Smith’s decision not to testify. Smith responded in the affirmative to the 

following questions: whether he “had sufficient time to discuss” with Trial 

Counsel the issue of whether he should testify; whether he had “weighed the 

benefits [of] testifying in [his] own defense against the deficits or the bad 

things that might result;” and whether he had “decided that it is in [his] best 

interest not to testify [on his] own behalf.” N.T., Trial Vol. IV, 9/13/12, at 

292. The trial court also informed Smith he had “an absolute right” under 

both the Pennsylvania and United States Constitutions to not testify, but 

advised, “I can’t read people’s minds, and I can’t guarantee you that there 

isn’t somebody on the jury who might be thinking, well, if he’s really innocent, 

why doesn’t he tell his side of the story?” Id. at 293-94. The trial court asked 

Smith whether he had considered this “possibility” when “weighing the 

benefits and deficits of testifying in his [own] defense.” Id. at 294. Smith 

replied, “Yes. . . . I’m not a good talker,” and affirmed that he believed it was 

“best to rely on” Trial Counsel and “his attack on the [Commonwealth’s] 

evidence.” Id.
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Additionally, at the PCRA hearing, Trial Counsel testified that prior to 

trial, he met with Smith multiple times and advised it was his decision whether 

to testify. N.T. Evidentiary Hearing, 8/1/22, at 12, 17. Trial Counsel denied 

that Smith told him he was with a friend at the time of the crime or named

any potential witnesses to interview. Id. at 13, 16. Smith testified that Trial 

Counsel only met with him once and that he told counsel of his alibi; however,

he acknowledged counsel did “go over . . . the pros and cons of . . . taking 

the stand.” Id. at 31, 34. The PCRA court credited Trial Counsel’s testimony,

and we are bound by this finding. See Smith, 181 A.3d at 1174; see also 

PCRA Court Opinion, 3/20/23, at 9.

In sum, Smith merely reiterates the claims already rejected by the PCRA 

court, while wholly ignoring the court’s findings regarding his waiver colloquy 

at trial and the testimony at the PCRA hearing. Smith is bound by his 

statements at trial, and he cannot now claim Trial Counsel did not advise him 

as to his right to testify. See Sandusky, 203 A.3d at 1075. We thus 

determine Smith’s first ineffectiveness claim is meritless. See Smith, 181 

A.3d at 1174-75. Accordingly, his first issue merits no relief.

In his second issue, Smith avers the PCRA court erred in denying relief 

on his claim of after discovered evidence — that detectives in the Philadelphia 

Police homicide unit have engaged in an unconstitutional pattern of 

threatening and abusing suspects and witnesses into giving inculpatory 

statements. Subsection 9543(a)(2)(vi) of the PCRA provides relief to a 
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petitioner who pleads and proves, by a preponderance of the evidence, that 

his conviction or sentenced resulted from “[t]he unavailability at the time of 

trial of exculpatory evidence that has subsequently become available and 

would have changed the outcome of the trial if it had been introduced.” 42 

Pa.C.S.A. § 9543(a)(2)(vi). To establish relief, a petitioner must demonstrate 

the new evidence:

(1) could not have been obtained prior to the conclusion of the 

trial by the exercise of reasonable diligence; (2) is not merely 

corroborative or cumulative; (3) will not be used solely to impeach 

the credibility of a witness; and (4) would likely result in a different 

verdict if a new trial were granted.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018).

In support of his claim that Philadelphia homicide detectives have 

engaged in a pattern of unconstitutional and coercive conduct, Smith cites 

several trial court decisions, in which Philadelphia detectives, including 

Detectives Pitts, Dove, and Jenkins,6 were found to have engaged in such 

behavior. Smith then avers “there are additional Philadelphia homicide 

detectives who have the exact same unconstitutional pattern and practice,”

and “the instant case is yet another example of this unconstitutional pattern, 

practice and custom.” Smith’s Brief at 26, 29.

The PCRA court considered Smith’s second issue and determined that it 

lacked merit. The PCRA court found Smith relied on “unrelated cases, not

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6 Smith does not provide the first names of these detectives.
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involving the detectives in this case.” PCRA Court Opinion, 3/20/23, at 10 

(emphases added). The PCRA court reasoned Smith “failed to show any nexus 

between the alleged coercive cases and this case,” and found no basis to 

“make the broad assumption that there must have been coerced confessions 

in this case.” Id. at 11. 

Based on our review, we reject Smith’s premise that this evidence —

that Philadelphia homicide detectives engaged in threatening behavior — was 

not previously known to him. The record reflects that Smith, in fact, argued 

at trial that homicide detectives pressured witnesses into naming him as the 

shooter, by threatening to charge the witnesses with the shooting if they did 

not comply. N.T. Trial Vol. V, 9/14/22, at 24 (Trial Counsel arguing that 

“Homicide detectives pressure[d] vulnerable and weak individuals . . . to 

confirm what [a CI had reported] by threatening to charge them with the 

crime itself”). Accordingly, Smith’s claim — that evidence of the detectives’

alleged conduct was discovered only after trial — is belied by the record. See

42 Pa.C.S.A. § 9543(a)(2)(vi); see also Small, 189 A.3d at 972.

Moreover, Smith does not aver that any of the detectives investigating 

this case were found to have committed misconduct, nor that the detectives 

were even related to the other defendants’ cases that he cites. Smith does 

not dispute the PCRA court’s reasoning, but rather reraises his underlying 

factual claims for this Court to review de novo. This we cannot do. See
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Smith, 181 A.3d at 1174. Accordingly, as the PCRA court’s ruling is supported 

by the record and is free of error, Smith’s second issue warrants no relief.

In his third issue, Smith avers Trial Counsel was ineffective for not

pursuing a claim that the Commonwealth improperly withheld the existence 

and identity of a CI, which violated his rights under the Confrontation Clause

and Brady v. Maryland, 373 U.S. 83 (1963). “The 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) (citation omitted). However, the right of cross-examination is not 

absolute. Id. Generally, “the 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.

Furthermore, this Court has explained: “To succeed on a Brady claim, 

a defendant must show that: ‘(1) the evidence at issue was favorable to the 

accused, either because it is exculpatory or because it impeaches; (2) the 

evidence was suppressed by the prosecution, either willfully or inadvertently; 

and (3) prejudice ensued.’” Sandusky, 203 A.3d at 1061 (citation omitted). 

However, “Brady does not require the disclosure of information ‘that is not 

exculpatory but might merely form the groundwork for possible arguments or 

defenses . . ..’” Id. at 1062 (citation omitted).
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The record reflects that the existence of the CI was disclosed at the

pretrial motion in limine hearing, held on the eve of trial. Detective Kevin 

Judge had received information, from an FBI detective, that a CI provided 

Smith’s name as the shooter and Broady’s and Spence’s names as occupants 

of the van. See N.T. Trial Vol. I, 9/10/22, at 215-17, 219. Detective Judge

testified the CI did not have personal knowledge of the shooting, but was told 

this information by someone else. Id. at 216. Smith then requested 

“discovery of the source of the [CI’s] knowledge.” Id. at 266. The trial court

partially agreed with Smith, reasoning that if the CI received the information 

from an eyewitness to the shooting, the Commonwealth would have to 

disclose the CI’s identity to the defense. The trial court thus directed the 

Commonwealth to determine whether the CI received information from an 

eyewitness. The following day, the Commonwealth advised that it had spoken 

with the FBI detective, who confirmed the CI was not aware of any 

eyewitnesses, but rather had only “third party . . . through the neighborhoodtype information” as to who the shooter and occupants of the van were. N.T. 

Trial Vol. II, 9/11/12, at 21. The trial court thus denied Smith’s request to 

further investigate this CI. Trial Counsel did not make any further objection.

Smith asserts that against this record, Trial Counsel was ineffective for 

not further requesting that the Commonwealth disclose the CI’s identity, and 

not arguing that the withholding of this information was a Brady violation. 

Smith contends that but for the CI’s information, the detectives did not have 
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any evidence linking him to the crime, yet the CI’s naming him as the shooter 

“was based entirely on what [an] unnamed eyewitness told” him. Smith’s 

Brief at 32, 35. Meanwhile, Smith avers, detectives “ignored the physical 

evidence which did not match up with the [CI’s] version of events.” Id. at 32. 

Smith also maintains the CI’s identity “would have been material to 

investigate” whether the CI himself was the shooter or an accomplice, and if 

so, what motive the CI had for falsely naming him as the shooter. Id. at 34.

In addressing this issue, the PCRA court reiterated that the CI did not 

possess personal knowledge of the shooting, it was not clear where he learned 

the information, and thus he would have been unable to present any material 

evidence. The PCRA court also found Smith raised “unspecified allegations, 

lacking in any particularity as to how the alleged information would have aided 

his defense.” PCRA Court Opinion, 3/20/23, at 12-13 (citing Pa.R.Crim.P. 

902(A)(12) (requiring that a PCRA petition cite the facts supporting each 

ground for relief)).

Based on our review, we discern no error by the PCRA court. Smith

again does not refute the PCRA court’s discussion, but instead baldly claims, 

without citation to any evidence and contrary to the statements at the pretrial 

hearing, that the CI “could have been compelled to disclose who the actual 

eyewitness was,” or that an investigation could have been made into whether 

“the CI himself [were] the actual shooter or assisting the actual shooter to set 

[him] up.” See Smith’s Brief at 34. Smith ignores that the trial court 
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specifically directed the Commonwealth to determine whether the CI received 

his information from an eyewitness, and the trial court was satisfied with the 

Commonwealth’s response that the CI did not know of any eyewitnesses, but 

rather had heard the information “through the neighborhood[.]” N.T. Trial 

Vol. III, 9/11/12, at 21. We therefore conclude that the record supports the 

PCRA court’s determination that Smith’s second ineffectiveness claim is 

meritless. Accordingly, this issue warrants no relief.

In his fourth issue, Smith asserts the PCRA court erred in denying relief 

on his claim that Trial Counsel was ineffective for not objecting to certain

statements in the Commonwealth’s closing argument.7 We note:

It is well-established that a prosecutor is free to present his 

argument with logical force and vigor so long as there is a 

reasonable basis in the record for the prosecutor’s remarks. 

Further, reversible error arises from a prosecutor’s comments only 

where their unavoidable effect is to prejudice the jurors, forming 

in their minds a fixed bias and hostility toward the defendant such 

that they could not weigh the evidence objectively and render a 

fair verdict.

To succeed on a claim of ineffective assistance of counsel based 

on trial counsel’s failure to object to prosecutorial misconduct, the 

defendant must demonstrate that the prosecutor’s actions 

violated a constitutionally or statutorily protected right, such as 

the Fifth Amendment privilege against compulsory selfincrimination or the Sixth Amendment right to a fair trial, or a 

constitutional interest such as due process. . . .

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7 Although Smith’s statement of the questions presented, as well as the 

relevant heading in his argument section, also refer to the Commonwealth’s 

opening argument, he does not present discussion of any opening statement. 

Accordingly, we deem any challenge regarding the Commonwealth’s opening 

statement to be waived. See Pa.R.A.P. 2119(a) (requiring argument section 

of brief to include discussion of particular claim raised).
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Commonwealth v. Walker, 110 A.3d 1000, 1006 (Pa. Super. 2015) (citation 

omitted).

Smith avers Trial Counsel was ineffective for not objecting to certain 

comments in the Commonwealth’s closing that were not supported by the 

evidence and thus prejudicial. Smith acknowledges the trial court sustained 

Trial Counsel’s objections to the Commonwealth’s rhetorical question — posed 

in response to the defense’s theory — of why the neighborhood would be in 

fear of a “destitute guy” and “drug addict that nobody cares about” (Smith).

N.T. Trial Vol. V, 9/14/12, at 96-97. The trial court instructed the jury that

such allegations were not a part of the evidence. Smith avers Trial Counsel 

should have then also objected to the Commonwealth’s ensuing remark, of 

why Broady and Spence would be afraid of Smith. Id. at 98. Smith maintains

the Commonwealth’s latter comment “again improperly referenced the 

neighbors being in fear when there was no such evidence of record.” Id. at 

37. He contends the “unavoidable effect” of the comment was to prejudice 

the jurors to such a degree that they formed a fixed bias toward him, and Trial 

Counsel lacked any reasonable basis for not renewing the objection. See id.

The PCRA court addressed Smith’s fourth issue and determined that it 

lacked merit. The PCRA court reasoned that after the trial court sustained the 

Trial Counsel’s objection to the Commonwealth’s statement, that the 

neighborhood in general feared Smith, the Commonwealth moved on to a

different argument, that Broady and Spence were afraid to testify, and it 
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was no longer addressing the issue of “fear throughout the neighborhood.” 

See PCRA Court Opinion, 3/20/23, at 15. The PCRA court then reasoned the 

Commonwealth’s comment was a fair inference based on the evidence, and 

thus Trial Counsel “cannot be faulted for not objecting.” Id.

Based on our review, we discern no error by the PCRA court. Again, 

Smith completely ignores this discussion on appeal, and instead reiterates a

claim that the Commonwealth’s statement, that Broady and Spence were 

afraid, should be construed as a continuation of its argument that the 

neighborhood was afraid of him. We agree with the PCRA court that Smith 

cannot show his underlying issue had merit, and furthermore that Trial 

Counsel cannot be deemed ineffective for not raising a meritless claim. See

Smith, 181 A.3d at 1174-75. We therefore conclude that the record supports 

the PCRA court’s determination that Smith’s fourth claim is meritless. 

In his fifth issue, Smith claims PCRA Counsel was ineffective for not 

raising a claim that Trial Counsel was ineffective for stipulating to the 

authenticity of “an edited compilation video.” Smith’s Brief at 39. Smith 

raised the present claim for the first time in his amended Rule 1925(b) 

statement.

As stated above, Bradley held “that a PCRA petitioner 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, 
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even if on appeal.” Bradley, 261 A.3d at 401. Our Supreme Court has 

explained:

In some instances, the record before the appellate court will be 

sufficient to allow for disposition of any newly-raised 

ineffectiveness claims. However, 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. [T]o advance a request for remand, a 

petition would be required to provide more than mere ‘boilerplate 

assertions of PCRA counsel’s ineffectiveness[;’] however, where 

there are ‘material facts at issue concerning [claims challenging 

counsel’s stewardship] and relief is not plainly unavailable as a 

matter of law, the remand should be afforded[.]’

Commonwealth v. Parrish, 273 A.3d 989, 1002 (Pa. 2022) (citations 

omitted). “Where a petitioner alleges multiple layers of [counsel’s] 

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.” Id. at 1003 n.11 

In claiming PCRA Counsel was ineffective for not raising a claim that 

Trial Counsel was ineffective for stipulating to the authenticity of a compilation 

video, the sum of Smith’s arguments are: (1) neither Trial Counsel, PCRA 

Counsel, nor the trial court asked him whether he agreed to stipulate to the 

“admissibility [sic]” of the video; (2) by stipulating to the authenticity of the 

video, Trial Counsel implicitly agreed the footage was credible; (3) Smith was 

prejudiced by the stipulation because he could not object to the admission of 

the evidence; and (4) the evidence was “damning and dispositive to the issue 

of his guilt.” Smith’s Brief at 39-40.
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The PCRA court addressed Smith’s fifth issue in its supplemental 

opinion, emphasizing that Smith made no claim that the video was inaccurate, 

nor that “exculpatory portions were left out.” PCRA Court Opinion, 3/20/23, 

at 16. The PCRA court also pointed out that Smith did not suggest what kind 

of objection Trial Counsel should have made to the video. The court thus 

concluded neither PCRA Counsel nor Trial Counsel were ineffective for not 

raising this meritless issue.

Based on our review, we discern no error by the PCRA Court. Smith 

again fails to address the PCRA court’s discussion. Instead, he simply presents 

the same vague and undeveloped discussion that Trial Counsel was 

ineffective, without specifying any inaccuracies in the video. Accordingly, 

Smith has not pleaded a sufficient layered claim of ineffectiveness. See 

Parrish, 273 A.3d at 1002. Furthermore, his boilerplate allegation does not 

warrant a remand for an evidentiary hearing on this new claim of PCRA 

Counsel’s ineffectiveness. See id. For the foregoing reasons, we do not 

disturb the PCRA court’s conclusion that no relief is due on Smith’s fifth claim.

In his sixth issue, Smith avers PCRA Counsel was ineffective for not 

raising a claim that Trial Counsel was ineffective for not objecting to Smith 

standing up at trial for identification purposes. With respect to a challenge to

a witness’ identification of a defendant, “the Commonwealth must prove, 

through clear and convincing evidence, the existence of an independent basis 

for the identification. . . . An independent basis is established when ‘the in-
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court identification resulted from the criminal act and not the suggestive 

[identification procedure].’” Commonwealth v. Davis, 17 A.3d 390, 394 

(Pa. Super. 2011). In determining whether the identification had an 

independent basis, a trial court must consider the witness’ opportunity “to 

view the criminal at the time of the crime, the witness’ degree of attention, 

the accuracy of the witness’ prior description of the criminal, the level of 

certainty demonstrated by the witness at the confrontation, and the length of 

time between the crime and the confrontation.” Id.

The PCRA court’s opinion first pointed out that Smith’s amended Rule 

1925(b) statement failed to identify the place in the trial transcript where he 

was ordered to stand for identification purposes. The PCRA court cited two 

instances where Smith’s physical appearance or identity as the shooter were 

raised, but the transcript did not indicate Smith was ordered to stand during 

either instance. Nevertheless, the court addressed these two instances, and 

reasoned that one witness, Broady, knew Smith prior to the shooting, and 

thus there was independent corroboration for the in-court identification.8

____________________________________________

8 The second possible instance cited by the trial court appeared in Officer 

Rahsaan Price’s testimony. Officer Price testified that four months before the 

shooting, he chased an individual named Maleek Custis, who had fired a gun 

at a group of people. Officer Price described Custis as approximately five feet 

and ten inches tall, and weighing approximately 190 pounds. The 

Commonwealth asked how Custis’s size compared to Smith’s size. Trial 

Counsel objected, but the trial court overruled the objection. Officer Price 

responded Custis was “much smaller” than Smith. N.T., 9/12/12, at 17.
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Despite this discussion by the PCRA court, on appeal Smith again fails 

to cite the place in the record where he was allegedly ordered to stand for 

identification purposes. While Smith states that “[t]he PCRA court was simply 

guessing as to where or whether the in-court identification took place at all,”

he does not confirm whether the two in-court identifications, discussed by the 

PCRA court, were indeed the identifications that he now wishes to challenge. 

Smith’s Brief at 42. In any event, the sum of Smith’s discussion is that the 

PCRA court “misse[d] the point of [his] argument,” because in the aggregate, 

the two identifications prejudiced him and were the “functional equivalent” of 

convicting him. Id.

First, we emphasize Smith has again failed, despite the PCRA court’s 

clear discussion, to cite the place in the record he was ordered to stand at trial 

for purposes of identification. Additionally, he does not dispute the PCRA 

court’s reasoning that because Broady knew him prior to the shooting, there 

was an independent basis for the in-court identification of him. See Davis, 

17 A.3d at 394. We also note Smith does not cite, and we have not

discovered, any legal authority imposing limits on an in-court identification of 

a defendant, particularly where identity was the issue at trial. Furthermore, 

we remind Smith that “[i]t is axiomatic in a criminal trial that all evidence 

offered by the prosecution will be prejudicial to the defendant.” 

Commonwealth v. Hicks, 151 A.3d 216, 224 (Pa. Super. 2016) (citation 

omitted). We conclude Smith has failed to plead a sufficient layered claim of 
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PCRA Counsel’s ineffectiveness, and furthermore failed to show that a remand 

is necessary for further review of his undeveloped claim. See Parrish, 273 

A.3d at 1002. Based on our review, we do not disturb the PCRA court’s 

determination that Smith’s sixth claim is meritless.

In his seventh issue, Smith claims PCRA Counsel was ineffective for not 

raising a claim that Trial Counsel was ineffective for not cross-examining 

Broady about inconsistencies between his prior statement to the police and a 

surveillance video played at trial. “The scope and vigor of cross-examination 

is a matter which falls within the ambit of sound trial strategy to be exercised 

by trial counsel alone.” Commonwealth v. Molina, 516 A.2d 752, 757 (Pa. 

Super. 1986). 

Smith avers PCRA Counsel was ineffective for not raising a claim that 

Trial Counsel was ineffective for not fully cross-examining Broady. 

Specifically, Smith avers that previously, Broady told detectives he was 

outside the store, on the sidewalk, when heard gunshots. However, the 

surveillance video played at trial showed Broady was in the doorway of the 

store. Smith acknowledges that Trial Counsel cross-examined Broady on this 

inconsistency, but insists “[t]here should have been more areas of 

exploration.” Smith’s Brief at 44. In support, Smith contends that “[i]f there 

were true discrepancies[] between Broady’s statement and the video . . . , 

[Trial C]ounsel was deficient and ineffective[.]” Id. Smith also claims there

was per se ineffectiveness, where the Commonwealth had questioned Broady 
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for hours, but Trial Counsel’s cross-examination comprised fewer than twenty 

pages of the trial transcript.

In denying relief on his issue, the PCRA court pointed out that Smith did 

not identify any additional inconsistencies between Broady’s statement and 

the surveillance video. The PCRA court concluded it thus could not provide 

any meaningful review on this claim.

Despite this discussion by the PCRA court, Smith again fails to explain 

what alleged inconsistencies Trial Counsel should have explored on crossexamination. He acknowledges Trial Counsel did question Broady on the one 

inconsistency cited — whether he was in the doorway or on the sidewalk when 

he heard gunshots. Furthermore, Smith does not cite, and we have not 

discovered, any legal authority supporting his claim that an attorney may be 

found per se ineffective when his cross-examination is far shorter than the 

Commonwealth’s direct examination of the same witness. Based on our 

review, we discern no error in the PCRA court’s analysis. As Smith has not 

sufficiently articulated why Trial Counsel was allegedly deficient, PCRA Counsel 

cannot be considered to have been ineffective for not raising the underlying 

claim, and no remand is necessary for development of a record on this bald 

claim. See Parrish, 273 A.3d at 1003 n.11. We thus agree with the PCRA 

court’s denial of relief on Smith’s seventh issue.
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In his eighth issue, Smith claims that although Trial Counsel raised two 

different Batson9 challenges during jury selection, PCRA Counsel was 

ineffective for not raising a claim that Trial Counsel failed to argue more 

“forcefully . . . that the conduct of the Commonwealth was discriminatory.” 

Smith’s Brief at 46. “Batson established that it is unconstitutional to use 

peremptory strikes in a purposefully discriminatory manner.” 

Commonwealth v. Alexander, 296 A.3d 1, 4 (Pa. Super. 2024). A 

petitioner raising a Batson claim under the PCRA must prove there was 

“actual, purposeful discrimination by a preponderance of the evidence,” and 

“[a] finding by the trial court as to an absence of discriminatory intent must 

be given great deference on appeal.” Commonwealth v. Sepulveda, 55 

A.3d 1108, 1132 (Pa. 2012).

Smith acknowledges that Trial Counsel did make two Batson challenges 

at different times during jury selection, the latter when the Commonwealth 

struck a potential juror who was Native American. Smith summarizes that in 

response to the second Batson challenge, the trial court admonished the 

Commonwealth to articulate specific reasons for striking a juror. Despite this 

exchange, Smith contends Trial Counsel was ineffective for not “effectively 

advocat[ing] for the removal of the putative offending juror” and, again, not

____________________________________________

9 Batson v. Kentucky, 476 U.S. 79 (1986).
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“forcefully argu[ing]” that the Commonwealth’s conduct was discriminatory. 

Smith’s Brief at 46.

By way of background, we note the PCRA court summarized the relevant 

portions of jury selection. The Commonwealth used peremptory strikes to 

remove three potential jurors who were, respectively: white; Hispanic or 

another race; and black and Hispanic. Trial Counsel argued the 

Commonwealth had no nondiscriminatory reason for the latter two strikes and 

was showing a “pattern” of exercising its peremptory strikes according to race. 

N.T. Trial Vol. I, 9/10/12, at 128. The trial court disagreed, reasoning the 

Commonwealth did accept five jurors, out of nine, who were African American 

or Asian, and thus denied relief.

Subsequently, Trial Counsel renewed his Batson challenge when the 

Commonwealth struck a juror who identified as Native American. The trial 

court directed the Commonwealth to state its reason for striking the juror, and 

the Commonwealth replied that: (1) the juror had “very long hair,” “was 

younger,” worked in retail, was single, and had a child; (2) the juror had “a 

lot of responsibility;” and (3) the Commonwealth believed it “could find a 

better juror.” Id. at 149-50. In response, Trial Counsel argued that the 

Commonwealth’s reasons were discriminatory under Batson, and requested 

the trial court to seat this juror. The trial transcript does not indicate whether 

the trial court directed this juror to be seated.
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In addressing Smith’s eighth issue, the PCRA court explained that the 

trial record did not identify the race of: the venirepersons in the jury pool; the 

venirepersons remaining after challenges for cause; the jurors ultimately 

selected; nor the jurors struck by Trial Counsel but who were acceptable to 

the Commonwealth. The PCRA court found that in the absence of such 

information, Smith’s Batson-based ineffectiveness claim must fail.

First, we observe that again, Smith does not address any of this wellreasoned discussion by the PCRA court. Second, his argument on appeal —

that Trial Counsel was ineffective for not advocating “for the removal of the 

putative offending juror” — is not clear. See Smith’s Brief at 46 (emphasis 

added). A proper Batson argument in this context would be that the 

Commonwealth improperly used a peremptory strike against a potential juror 

based on race alone, and thus the juror should not have been excluded. 

Consistent with such a theory, here, Trial Counsel requested the trial court to 

seat the juror. To the extent present counsel merely made a typographical 

error in the brief, we would conclude no relief is due on his other contention —

that Trial Counsel was ineffective for “meekly” raising the Batson challenge. 

See id. Trial Counsel raised two Batson challenges, the latter of which 

resulted in the trial court’s requirement that going forward, the 

Commonwealth must state its reasons for striking a juror. Additionally, as the 

PCRA court discussed, by the time of the first Batson challenge, the 

Commonwealth had accepted five jurors, out of nine, who were African 
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American or Asian. Based on our review, we discern no error in the PCRA 

court’s analysis. Accordingly, Smith’s eighth issue merits no relief.

In his ninth issue, Smith claims PCRA Counsel was ineffective for not 

raising a claim that Trial Counsel was ineffective for not interviewing Green or 

calling him as a witness at trial. In claiming that defense counsel was 

ineffective for failing to call a certain witness, a petitioner must

prove (1) the witness existed; (2) the witness was available to 

testify for the defense; (3) counsel knew of, or should have known 

of, the existence of the witness; (4) the witness was willing to 

testify for the defense; and (5) the absence of the testimony of 

the witness was so prejudicial as to have denied the defendant a 

fair trial.

Commonwealth v. Medina, 209 A.3d 992, 998 (Pa. Super. 2019) (citation 

omitted).

As stated above, Smith avers PCRA Counsel was ineffective for not 

presenting a claim that Trial Counsel was ineffective for not interviewing 

Green, or calling him as a witness at trial. In support, Smith first maintains

that there was no forensic evidence, and instead, the Commonwealth’s case 

was dependent on the reliability of its witnesses. Additionally, Smith contends

that if Green were in the front passenger seat of the van during the shooting, 

he would have had “the best view of the shooter.” Smith’s Brief at 49. Smith 

avers that Green was identified as a witness in the discovery provided to the 

defense, but Trial Counsel did not make any attempt to contact Green. Smith 

now claims that had Trial Counsel interviewed Green, counsel would have 

learned that: (1) Green told detectives he saw the shooter “for a split second”
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and did not know who the shooter was; but (2) detectives confiscated $750 

from Green, “tried to force [him] to identify” Smith as the shooter, and told 

Green he could not “leave until he confirmed everything they already knew.” 

Id. at 49-50, 52.

In addressing Smith’s ninth issue, the PCRA court noted that PCRA 

Counsel did raise a claim, in the amended PCRA petition, that Trial Counsel 

was ineffective for not interviewing or calling to testify Green, and that the 

PCRA court convened an evidentiary hearing so that Smith could present 

Green as a witness. Although Green was subpoenaed, he did not appear, and 

thus Smith was unable to call him as a witness. The PCRA court further noted

that Smith provided no explanation why Green failed to appear at the PCRA 

hearing, and in any event, Smith did not show Green was willing and able to 

testify at trial. The PCRA court also found that Smith failed to show how 

Green’s testimony would have aided his defense, where Smith’s own amended 

PCRA petition acknowledged that Green told detectives he did not know who 

the shooter was and had “barely seen his face.” PCRA Court Opinion, 3/20/23, 

at 25.

Based on our review, we discern no error in the PCRA court’s analysis. 

Again, Smith fails to address the PCRA court’s reasoning. Our review of the 

record reveals that neither the amended PCRA petition nor Green’s purported 

affidavit asserted that Green was available and willing to testify at trial. See 

Medina, 209 A.3d at 998. Furthermore, in arguing that Green would have 
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had a good view of the shooter, Smith ignores his own, earlier assertion that 

Green stated he did not see the shooter’s face. We thus agree that Smith has 

not shown how the absence of Green’s testimony so prejudiced him as to have 

denied him a fair trial. See Medina, 209 A.3d at 998. Accordingly, we agree 

with the PCRA court that no relief is due on Smith’s ninth issue.

In his final issue, Smith asserts that the multiple instances of Trial 

Counsel’s ineffectiveness combine to establish prejudice and a due process 

violation. This Court has explained:

“[N]o number of failed [] claims may collectively warrant relief if 

they fail to do so individually.” However, . . . this principle applies 

to claims that fail because of lack of merit or arguable merit. 

When the failure of individual claims is grounded in lack of 

prejudice, then the cumulative prejudice from those individual 

claims may properly be assessed.

Sandusky, 203 A.3d at 1102 (citation omitted).

Smith asserts that while each of his above claims alone entitles him to 

relief, the cumulative effect of Trial Counsel’s multiple instances of ineffective 

assistance was to render his trial fundamentally unfair. Smith contends he 

was denied his right to due process and a fair trial.

The PCRA court addressed Smith’s final issue and rejected his claim of 

a cumulative effect of Trial Counsel’s alleged ineffective assistance. The PCRA 

court reasoned that none of his claims established any prejudice. We conclude 

that the PCRA court did not err in denying Smith’s claims of Trial Counsel’s 

alleged ineffectiveness. In so doing, we incorporate our above discussions of 

each of Smith’s claims. Furthermore, we determine Smith has not established 
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he is entitled to a remand for the PCRA court to hold an evidentiary hearing 

on his new claims of PCRA Counsel’s ineffectiveness. See Parrish, 273 A.3d 

at 1003 n.11. Accordingly, we affirm the order denying his PCRA petition.

Order affirmed.

Date: 4/10/2024