J. 

### S11040/19 NON-PRECEDENTIAL DECISION 

## - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA v. SAHARRIS ROLLINS, No. 2483 EDA 2017 

### Appellant Appeal 

### from the PCRA Order, May 8, 1997, in 

### the Courtof Common Pleas of Philadelphia County Criminal Division at No. 

### CP-51-CR-0405851-1986

BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: 

### FILEDAUGUST 

### 08, 

### 2019 Following 

### reinstatement of his 

### collateral appeal 

### rights

## nuncpro tunc, Saharris Rollins appeals

### from the May 8, 1997 

### order entered in the Court of Common Pleas 

### of Philadelphia County 

### that dismissed his 

### petition filed 

### pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 

### 9541- 9546. We 

### affirm. The PCRA 

### court 

### that entered the May 8, 1997 

### order denying 

### appellant PCRA 

### relief set

### forth the

### following: OnJanuary22, 1986, 

### [appellant] knocked onthedoor of Jose Carrasquillo and Violeta 

### Clintron's residence 

### for the purpose of obtaining [c]ocaine. Mr. Carrasquillo was not

### there, but Mrs. 

### Clintron, her 

### brother (Raymond 

### Clintron), and herone

### year old son were present. Recognizing 

### [appellant] as anassociate of her 

### boyfriend, Mrs. 

### Clintron 

### permitted [appellant] to 

### enter the home. 

### After entering, [appellant] asked 

### for a 

### "sixteen" or 1.5 grams of cocaine. WhenJ. 

### S11040/19
Mrs. 

### Clintronmeasured the cocaine, 

### [appellant]asked to 

### trade methamphetamine for the cocaine. Mrs. 

### Clintron refused and demanded cash instead. 

### [Appellant] responded by leaving the residence and 

### returning a few 

### minutes later with a 

### forty-five automatic pistol. Upon 

### returning, [appellant] pointed the weapon atVioleta and demanded 

### the cocaine. At 

### this point, Raymond 

### Clintron began 

### wrestling with 

### [appellant] in an 

### attempt to seize the weapon. 

### After several shots were 

### fired, Mr. 

### Clintron was wounded and fell to the floor. 

### [Appellant] then picked up the 

### victim and fired at least two more rounds into the 

### victim's body. As a consequence, Violeta 

### surrendered the cocaine and 

### [appellant] left. 

### [Appellant] was apprehended 

### three days 

### later following another unrelated shooting 

### incident.[Footnote 1] The police picked up 

### [appellant] and 

### transported him to the hospital, where he was 

### identified by witnesses 

### from the 

### first shooting. 

### After the police 

### verified a ballistics match on the spent cartridges from thetwo crime scenes, 

### [appellant] was arrested and charged 

### with murder. [Footnote 1] On January 25, 1986, 

### [appellant] knocked on Richard Campbell's door. Mr. Campbell's

### younger brother answered the door and called a 

### warning 

### that [appellant] had a gun. Mr. Campbell, who was 

### upstairs, grabbed a loaded shotgun out ofthe closet. When 

### [appellant] reached the bottom of the stairs, he pointed his 

### forty-five automatic pistol at Mr. Campbell and the two exchanged 

### gunfire. [Appellant] was wounded and fled. A pedestrian observing 

### [appellant] on the sidewalk, called police. Following a 

### jury trial held between February 10 and March 6, 1987, 

### [appellant] wasfound

### guiltyof 

### murder in the 

### first degree, 

### robbery and possession of an 

### instrument of crime. 

### After the penalty hearing, the 

## -2J. 

### S11040/19 

### juryfound two

### aggravating circumstances,which

### they concluded 

### outweighed the one 

### mitigating circumstance. On the basis of its 

### findings, the

### jury sentenced 

### [appellant] todeath. On May 11, 1987,the 

### [t]rial [c]ourt heard and denied post 

### trial motions. Subsequently, 

### [appellant] appealed asserting claims of

### ineffective assistance

### ofcounsel and 

### trial error. On July 15, 1988, the Pennsylvania Supreme Court granted counsel's 

### petition to 

### withdraw, remanded the record tothe 

### [t]rial [c]ourtforthe

### appointmentofnew counsel and 

### permitted new counsel to press the claims. The Supreme Court reviewed the case and 

### affirmed both the conviction and sentence. 

### Commonwealth v. 

### Rollins, [] 580 A.2d 744 

### ([Pa.] 1990). PCRA 

### courtopinion, 

### 9/8/97 at 1-3. The record reflects

### that on November 12, 1996,

### appellantfiledthe PCRA 

### petition 

### that is 

### the root of this appeal. In 

### that petition, appellant asserted claims of 

### ineffective assistance of counsel,

### trial courterror, and 

### prosecutorial misconduct. On May 8, 1997, the PCRA 

### court denied 

### the petition 

### without holding a hearing. Oursupreme 

### courtaffirmed the 

### order denying 

### appellant's PCRA 

### petition, finding 

### thatappellant waived his claims of

### trial court errorand 

### prosecutorial misconduct 

### for failure to raise 

### them on 

### direct appeal and 

### rejecting appellant's ineffective assistance 

### of counsel claims on the 

### merits. 

### Commonwealth v. 

### Rollins, 738 A.2d 435 (Pa. 1999). On March 10, 2000, 

### appellantfiled a 

### petition

### for

### writof

### habeas

### corpus in the United States 

### District Court 

### for the Eastern 

### District of Pennsylvania seeking 

### relieffrom his death sentence on

### substantiallythe same grounds

### that he raised in his PCRA 

### petition. The 

### district court granted 

### habeas 

### corpus 

## -3J. 

### S11040/19 relief with respect to 

### appellant's death sentence 

### after finding 

### that two 

### significant errors occurred during the penalty phase 

### of appellant's criminal 

### trial.' The 

### district court directed 

### that appellant be given a new sentencing hearing or be sentenced to life 

### imprisonment. 

### Rollins v. 

### Horn, 2005 U.S. Dist. LEXIS 15493, 2005 WL 1806504 (E.D. Pa. 

### 2005). On July 7, 2010, the United StatesCourt ofAppeals

### fortheThird Circuit

### affirmed. 

### Rollinsv. 

### Horn, 386 Fed. Appx. 267 (3d Cir. 

### 2010). On June 13, 2012, 

### appellant was resentenced to life 

### without parole on the 

### first-degree 

### murder conviction and 

### concurrenttermstotaling 121/2 to 25 years of incarceration on the remaining charges. On 

### August 8, 2016, 

### appellant filed a PCRA 

### petition wherein he claimed 

### relief pursuantto

### the United States Supreme Court's decision in 

### Williams v. 

### Pennsylvania, 136 S.Ct. 1899 

### (2016).2 In 

### Williams, the Supreme Courtof Pennsylvania had vacated an 

### order granting PCRA 

### relief to a 

### prisoner convicted of

### first-degree 

### murder and sentenced to death. Then

### -ChiefJustice



### ' The 

### district court found 

### that (1) appellant's 

### trial counsel was 

### ineffective in failing to prepare

### forthe penalty phase ofthe

### trial until 

### afterthe

### jury rendered its

### verdict; specifically,

### forfailingto 

### investigatepotentially mitigating evidence concerning the psychological impact of 

### appellant's abusive childhood; and (2) the 

### trial court presented 

### ambiguous 

### jury instructions with respect to 

### whether aggravating and 

### mitigating circumstances must be found 

### unanimously. 

### Rollins, 2005 U.S. Dist. LEXIS 

### 15493; 2005 WL 1806504.

2

### Although we have concerns as to 

### whether 

### Williams,supra, can be applied 

### retroactively, aswell as concerns asto 

### certain 

### other procedural issues related to this appeal, we will go 

### forward in the 

### interest of 

### justice and 

### judicial economy. 

## -4J. 

### S11040/19 Ronald D. Castille had been the 

### district attorneywho had given approval to seek the death penalty in 

### Williams's case. 

### Thereafter, while 

### sitting on the Pennsylvania Supreme Court, then-Chief Justice Castille denied 

### Williams's motion 

### for recusal and 

### participated in the court's decision to deny Williams PCRA relief. On appeal, the United States Supreme 

### Court determined 

### that then-ChiefJustice Castille's denialofthe recusal 

### motion and his 

### participation in 

### Williams's collateral appeal 

### violated the Due Process Clause of 

### the FourteenthAmendment. The High 

### Court held 

### that

### "[w]here a

### judge has had

an 

### earlier significant, personal 

### involvement as a 

### prosecutor in a 

### critical decision in 

### the defendant's case, the risk of actual bias in the 

### judicial proceeding rises to an 

### unconstitutional level" and due process 

### entitles 

### that defendant to a proceeding where he is assured 

### that no 

### member ofthe 

### court is predisposed to rule 

### against him. 

### Id. at 1910. With respect to 

### appellant's August 8, 2016 PCRA 

### petition, the PCRA 

### court explained

### that appellant: claimed due process 

### violations and 

### judicial improprieties. 

### [Appellant], along 

### with many other separate Philadelphia 

### petitioners, allege 

### [] ChiefJustice [Ronald D. 

### Castille] of the Supreme Court 

### of Pennsylvania, during his 

### tenure as Philadelphia 

### District Attorney, was involved in the decision to seekthe death penalty against 

### and/or had 

### significant personal 

### involvement in 

### their cases as Philadelphia 

### District Attorney. As such these actions by the then 

### District Attorney Ronald Castille 

### against 

### [appellant], and 

### [p]etitioners'due process 

### rightswere violated when the Chief Justice failed to recuse or 

### disqualify himself when 

### their case came before the Supreme Court of Pennsylvania 

### for appellate review. 

## -5J. 

### S11040/19 Following a hearing on April 24, 2017, this 

### court determinedthen 

### DistrictAttorney Ronald Castille was 

### significantly and 

### personally involved in 

### [appellant's] casewhen he 

### authorized his 

### subordinatesto seek the death penalty against 

### [appellant]. The 

### court granted the PCRA 

### petition in 

### part and 

### reinstated 

### [appellant's] appellate rights 

### nunc

### protunc on May 3, 2017. On May 31, 2017, the Commonwealth of Pennsylvania appealed 

### this court's 

### reinstatement of 

### [appellant's] appellate rights 

### nunc 

### pro tunc to the Superior Court.[3] On June 1, 2017, 

### [appellant] also filed a notice of appeal to

### the Pennsylvania Supreme Court. PCRA 

### courtopinion, 

### 10/19/17 at 1-2. The record reflects 

### that on 

### August 4, 2017, our supreme 

### court transferred the notice of appeal to 

### this court. 

### (Per

### curiam order, 

### 8/4/17.) On 

### August 28, 2017, this 

### court entered an 

### order directing appellant to show

cause

### withinten days asto 

### "whythis appeal should not be quashed as having been taken 

### from a 

### purported order 

### that is not entered upon the 

### appropriate docket of the lower 

### court." (Order, 

### 8/28/17.) Appellant filed a 

### timely response. In 

### that response, 

### appellant explained 

### that although the May 8, 1997 

### orderdoes not appear on the electronic docket, it was 

### "included on 

### the paper docket 

### that was prepared in 

### November 1997 in connection 

### with the original PCRA 

### appeal." (Appellant's response to 

### order to show cause, 

### 9/7/17

3 The record reflects 

### that on 

### August 30, 2017, 

### appellant filed "an unopposed 

### application 

### for exercise of 

### extraordinary jurisdiction in the Pennsylvania Supreme Court, requesting the Supreme Court to 

### take

### jurisdiction over the Commonwealth's appeal" of the PCRA 

### order 

### that granted appellant relief. (Appellant's response to 

### order to show cause, 

### 9/7/17 at 3, '11 9 and 

### attachment.) On March 5, 2018, the Commonwealth 

### withdrew and discontinued its appeal 

### of the May 3, 2017 

### order granting appellant PCRA relief. 

## -6J. 

### S11040/19
at 3, ¶ 11.) 

### Appellant

### further stated

### thatthe May 8, 1997 

### order is referenced in the Pennsylvania Supreme Courtdocket

### forthe original PCRA appeal. 

### (Id.) Appellantalso 

### informedthis court

### that on

### August31, 2017, hefiled a praecipe in the Court of Common Pleas of Philadelphia County to include the May 8, 1997 

### order in the electronic record. 

### (Id. at ¶ 12.) Also on 

### September 7, 2017, 

### appellant filed 

### with thiscourt an 

### application for correction of record to which he attached a copy of the paper docket sheet of the 

### original PCRA proceeding and a copy

### of his praecipe requesting

### thatthecommon pleas 

### court correctthe

### electronicdocket. 

### (Appellant's applicationfor correction ofrecord, 

### 9/7/17 at Exhibits E and G.) On 

### September 13, 2017, this 

### court discharged the ruletoshow causeand 

### referredthe

### appealability issueto the

### merits panel. On 

### September 13, 2017, 

### appellant filed an 

### application 

### for leave to file a 

### supplement to his response to 

### order to show cause to which he attached a 

### September 7, 2017 

### order directing the office of 

### judicial records in the Philadelphia Court of Common Pleas to 

### enter the May 8, 1997 

### order on the 

### appropriate docket. 

### (Appellant's application for leave to file 

### supplement to 

### appellant's response to 

### order to show cause, 

### 9/15/17 at 

### attachmentorder of 

### court, 

### 9/7/17.) On October 12, 2017, this 

### court directed the 

### trial court to 

### certify and include in the 

### trial court record the May 8, 1997 order. On October 20, 2017, the 

### trial courtcomplied. On February 15, 2018, the Commonwealth filed an 

### "unopposed motion to stay appeals" wherein it requested 

### that this 

### court enter an 

### order staying



### _7J. 

### S11040/19 appellant'sappeal at

### this docket, aswell as an appeal 

### thatthe Commonwealth filed at No. 2017 EDA 2478 

### that challenged the May 3, 2017 

### order granting appellant PCRA relief. Because the Commonwealth 

### withdrew its appeal at No. 2017 EDA 2478 on March 5, 2018,this 

### court entered an

### order denying as 

### moot the Commonwealth's motion to 

### stay the appeal 

### at 

### that docket. On January 19, 2018, our supreme 

### court denied 

### appellant's application for exercise 

### of 

### extraordinary relief. 

### (Per 

### curiam order, 

### 1/19/18.) Therefore, this appeal is now ripe

### for our review. Appellant raisesthe following issues: 

### [1.] Should 

### [appellant] be 

### granted a new 

### trial because defense counsel was 

### ineffective in failing to 

### investigate and 

### present 

### exculpatory evidence? 

### [2.] Should 

### [appellant] be 

### granted a new 

### trial because 

### of misconduct 

### committed by the prosecutor in hisopening 

### statement and closing 

### argument? 

### [3.] Should 

### [appellant] be 

### granted a new 

### trial because 

### trial counsel 

### ineffectively failed to 

### properly object when the 

### Commonwealth used its 

### peremptory strikes in a 

### racially 

### discriminatory manner? 

### Appellant's briefat 2. This 

### Court's review from the 

### grant or denial of post

### -conviction relief is 

### limited to 

### examining 

### whether the lower 

### court's determination is 

### supported by the evidenceofrecord and

### whether it isfree oflegal

### error. In 

### order to be eligible 

### for relief under the PCRA, an 

### appellant must plead and prove by a 

### preponderance ofthe evidence 

### that his 

### conviction or sentencearose 

### from oneormore ofthe

### errors listed 

### at42 Pa. C.S.

### [A.] 

## -8J. 

### S11040/19

§ 

### 9543(a)(2) and 

### that the issues he raises have not been 

### previously litigated. An issue will be deemed 

### previously litigated when 

### "the highest appellate 

### court in which the 

### petitioner could have had review as a 

### matter of 

### right has ruled on the 

### merits ofthe issue." 42 Pa. 

### C.S.[A.] § 

### 9544(a)(2). 

### Commonwealth v. 

### Todaro, 701 A.2d 1343, 1346 (Pa. 1997) 

### (internal case law 

### citations 

### omitted). As 

### framed, appellant's

### first and 

### third issuesallege 

### ineffective assistance of 

### trial counsel. 

### Although appellant's second issue is 

### inartfully framed, a reading of

### appellant's PCRA 

### petition and his

### appellate brief on

### this issue reveal 

### that appellant alleges 

### that trial counsel was 

### ineffective for failing to 

### "meaningfullyor

### appropriately object"tothe prosecutor's opening and closing 

### remarks and 

### thatdirect appeal counsel was 

### ineffectiveforfailing to raise

### this issue on appeal. 

### (Appellant's PCRA 

### petition, 

### 11/12/96 at 

### 41-48; see

### also appellant's brief at 

### 20.) Therefore, all ofthe issues 

### that appellant raises 

### for

our review allege 

### ineffectiveness of counsel. The law presumes

### thattrial counselwas 

### effective and 

### appellant bears the burden of proving otherwise. In order to sustain a claim of 

### ineffective assistance of counsel, 

### petitioner must establish (1) 

### that the underlying claim is of arguable 

### merit; (2) 

### that counsel's 

### performance had no reasonable basis; and (3) 

### that counsel's ineffectiveness worked to 

### petitioner's prejudice. Moreover, under the PCRA, counsel's 

### ineffectiveness must have so 

### undermined the 

### truth determining process 

### that no reliable 

### adjudicationof

### guiltor innocence could haveoccurred. 42 Pa. 

### C.S.[A.] § 

### 9543(a)(2)(ii). Furthermore, counsel's 

### stewardship must be 

### judged under the existing law atthe 

### time of

### trial and counsel 

### cannot be 

## -9J. 

### S11040/19 deemed 

### ineffective 

### for failing to 

### predict 

### future developments or changes inthe law. 

### Todaro, 701 A.2d at 1346 

### (internal case law 

### citations 

### omitted). At the 

### outset, we note 

### that in 1987 when 

### appellant's post

### -verdict motions werefiled, the law required 

### criminal defendants to raise 

### ineffective assistance 

### of counsel claims at the 

### earliest stage where counsel whose 

### ineffectiveness was questioned no longer represented the defendant. 

### See 

### Commonwealth v. 

### Busanet, 54 A.3d 35, 44 n.4 (Pa. 2012) (explaining application of 

### Commonwealth v. 

### Hubbard, 372 A.2d 687 (Pa. 

### 1977), in

cases predating 

### Commonwealth v. 

### Grant, 813 A.2d 726, 738 (Pa. 

### 2002), wherein our supreme 

### court abrogated the rule in 

### Hubbard, holding 

### that a 

### defendant"should 

### waitto raiseclaims 

### of ineffective assistance of

### trial counsel 

### until collateral 

### review."). Here, 

### appellant's post

### -verdict motions and 

### direct appeal predated 

### our supreme court's decision in 

### Grant; consequently, the 

### Hubbard rule governsthis appeal. The PCRA 

### court addressed 

### appellant's ineffective assistance of counsel claim 

### for failure to 

### present a 

### mitigation defense during 

### the penalty phase. (PCRA 

### courtopinion,

### 9/8/97 at 

### 3-9.) With respecttothe nearly 50 remaining ineffectiveness claims presented in 

### the PCRA 

### petition, the PCRA 

### court determined,

### without discussion, 

### thatthey lacked 

### merit. 

### (Id. at 

### 13-14.) The PCRA 

### court 

### further found 

### that appellant had waived all of

### the ineffectiveness claims

### that it did not address in its 

### September 8, 1997 opinion 

### forfailure to raise

### them on 

### direct appeal. 

### (Id. at 14.)

- 10 -J. 

### S11040/19 The 

### Commonwealth contends 

### that appellant waived his 

### first and 

### third issues of 

### trial counsel's ineffectiveness 

### for failure to raise 

### them on 

### direct appeal as required by

### Hubbard,supra. The

### Commonwealth

### furthercontends 

### that only appellant's second issue 

### of ineffectiveness of 

### trial counsel is cognizable on 

### collateral appeal because 

### appellant couched the claim in

### terms of

### direct appeal counsel's 

### ineffectiveness. In 

### Commonwealth v. 

### Hutchinson, 25 A.3d 277 (Pa. 

### 2011), a case where 

### Hubbardwas also 

### prevailing law when 

### petitioner's direct appeal was decided, our supreme 

### court explained 

### that although prevailing law required 

### petitionerto raise claims of

### trial counsel's ineffectiveness on

### direct appeal and the

### failuretodo so resulted in

### waiver, 

### petitionercould raise

### appellate counsel's 

### ineffectiveness under the PCRA, including claims of appellate counsel's ineffectiveness 

### for failure to raise 

### trial counsel's 

### ineffectiveness on 

### direct appeal. Our supreme 

### court 

### further explained 

### that to do so, 

### petitionerwould be required to 

### present his 

### argument as to each prong 

### ofthe ineffectiveness 

### test for each layer of the alleged 

### ineffective representation. 

### Id. at 286. 

### Accordingly, to raise a claim of 

### direct appeal counsel's ineffectiveness, a 

### petitioner would be required to 

### demonstrate 

### that the underlying claim is of arguable 

### merit; 

### that direct appeal counsel's 

### performance had no reasonable basis; and 

### that direct appeal counsel's ineffectiveness worked to 

### petitioner's prejudice. 

### Id. at 285-286.J. 

### S11040/19 Here, a review ofappellant's PCRA 

### petition demonstrates

### that appellant failed to 

### satisfy each prong 

### of the ineffectiveness 

### test for each 

### layer of the ineffective representation. Although appellant argues in his 

### petition 

### that his 

### underlying claims have 

### merit, he fails to 

### satisfy the reasonable basis and 

### prejudice prongs

### with respect to 

### trial counsel's alleged 

### ineffectiveness. With regard to 

### direct appeal counsel's alleged 

### ineffectiveness, appellant includes a 

### boilerplate allegation with respect to his

### first and 

### third issues

### that states: 

### [t]o the 

### extent appellate counsel failed to assert or 

### adequately preserve any of the claims set 

### forth herein, such counsel rendered 

### ineffective assistance ofcounsel in

### violation of 

### [appellant's] rights underthe 

### [Sixth, Eighth and 

### Fourteenth Amendments to the United States 

### Constitution and 

### Article 

### I, §§ 9 and 13 ofthe Pennsylvania 

### Constitution] and 

### [appellant] was prejudiced 

### thereby. Appellant's PCRA 

### petition, 

### 11/12/96 at 142, ¶ 379. With respectto 

### appellant's second claim and 

### direct appeal counsel's alleged 

### ineffectiveness, appellant merely concludes 

### that "[a]ppellate counsel was 

### ineffective 

### for not raising all instances 

### of misconduct on 

### appeal." 

### (Id. at 51, ¶ 179.) In addition to failing to 

### fully satisfy the ineffectiveness 

### test for trial counsel's alleged 

### ineffectiveness, appellant 

### entirely failed to bear his burden of proving 

### that appellate counsel's 

### performance had no reasonable basis and 

### that appellate counsel's

### ineffectiveness

### forfailing to raisethe issueson

### direct appeal resulted in 

### prejudice. Nevertheless,

### with regard to 

### appellant's 

### first issue, we note 

### that in his 

### appellate brief, appellant claims

### thattrial counsel was 

### ineffective

### forfailing to

- 12 -J. 

### S11040/19 learn 

### appellant's blood 

### type prior to 

### trial; for stipulating to 

### appellant's blood 

### type at

### trial; forfailing to spend 

### sufficienttime arguing 

### that appellant's blood 

### type was not found in a hat 

### that was found near the crime scene; and 

### that based on 

### appellant's blood 

### type and his 

### dominant hand, he could not have been the shooter. 

### (Appellant's brief at 

### 8-17.) Appellant asserts 

### that trial counsel's 

### ineffectiveness inthis regard resulted in 

### prejudice because

### "itwould have 

### strongly suggested 

### that appellant was not the 

### shooter at the homicide 

### scene." 

### (Id. at 15.) 

### Notwithstanding the deficiencies in 

### appellant's PCRA 

### petition and his

### failure to 

### properly layer his 

### ineffectiveness allegations,

we note 

### that at 

### trial, the Commonwealth presented the 

### testimony of Violeta 

### Clintron who eyewitnessed the 

### murder and 

### identified appellant as the shooter. (Notes of

### testimony, 

### 2/25/87 at

### 637-676.) In his second issue, 

### appellant argues

### that trial counsel was 

### ineffective 

### for failing to 

### object to

### that portion ofthe 

### prosecutor's closing 

### argument

### that included a 

### hypothetical to explain to 

### the

### jurywhy appellant's blood 

### type was notfound in the hat

### thatwas found nearthe 

### murder scene. 

### Appellant claims 

### that had 

### trial counsel 

### objected, 

### "the

### jurywould have 

### entertained reasonable 

### doubt." (Appellant's brief at 21.) 

### Notwithstanding the deficiencies in 

### appellant's PCRA 

### petition and his

### failure to 

### properly layer his 

### ineffectiveness allegations, we note 

### thattrial counsel placed 

### three objections on the record during 

### this portion of the prosecution's closing 

### argument. (Notes 

### of 

### testimony, 

### 3/4/87 at 1614, 1621, and 

### 1622.)

- 13 -J. 

### S11040/19 In hisfinal issue, 

### appellant claims

### thateven 

### though

### trial counsel placed 

### objections onthe record astothe prosecution's use

### of

### peremptorystrikesand

even 

### though 

### trial counsel unsuccessfully raised the issue in post

### -verdict motions, 

### trial counsel was nevertheless 

### ineffective because he should have placed more 

### objectionsto the prosecution's use 

### of 

### preemptorystrikes on the recordwhichwould havedocumented a 

### pattern ofdiscrimination. (Appellant's brief at 

### 17-22.) In his PCRA 

### petition, however, appellant claimed 

### that he is 

### entitled to a new 

### trial because the 

### trial court allowed 

### the prosecution to exercise race-based 

### strikes and refused to hold a hearing under 

### Batson v. 

### Kentucky, 474 U.S. 942 

### (1985). (Appellant's PCRA 

### petition, 

### 11/12/96 at 

### 92-94 § 4, 

### III 264-269.) In a 

### footnote, appellant noted 

### that "[d]efense counsel objected often enough to 

### apparent race-based 

### peremptories 

### that he should be deemed to have a 

### continuing 

### objection" and 

### that 

### "[t]o the 

### extent defense counselwaived any 

### objection byfailing to raise it 

### specifically, he was 

### ineffective." 

### (Id. at 93 

### n.31.) Notwithstanding thedeficiencies in 

### appellant's PCRA 

### petition and his 

### failure to 

### properly layer his 

### ineffectiveness allegations,

we note

### that appellantdid not raise the issue he now 

### attempts to raise in his PCRA 

### petition, the 

### failure of which would 

### result in 

### waiver. See Pa.R.A.P. 

### 302(a) (providingforwaiver ofissues onappeal

### thatwere notraised in the lower

### court); 

### Commonwealthv. 

### Paul, 557A.2d 357 (Pa.Super. 1989) 

### appealdenied, 578 A.2d 927 (Pa. 1990) 

### (reiterating 

### that Rule 

### 302(a) does

- 14 -J. 

### S11040/19
not 

### permit an 

### appellate 

### court to consider an issue raised 

### forthe 

### firsttime on appeal). Order

### affirmed. Judgment Entered.

Joseph D. 

### Seletyn, Prothonotary

Date: 

### 8/8/19

- 15 -