J. S63006/16

 

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JAMEL S. FORD, : No. 2332 EDA 2015

:

 Appellant :

Appeal from the PCRA Order, July 20, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos. CP-51-CR-0002100-2008,

CP-51-CR-0005080-2007, CP-51-CR-0005081-2007,

CP-51-CR-0005082-2007

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 06, 2016

Jamel S. Ford appeals from the order entered in the Court of Common 

Pleas of Philadelphia County that dismissed, without a hearing, his first 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-9546. We affirm.

In a prior memorandum, affirming appellant’s judgment of sentence on 

direct appeal, this court summarized the history of this case as follows:

On December 5, 2006, around 11:10 p.m., 

while walking at Emerald and Ontario Streets in 

Philadelphia, Jamal Wright and Stephanie Wilcox 

conversed with Haneef Dyches, who was also known 

as “Neef” and “Neef Bucks.” [Appellant] approached 

on foot, acknowledged Wright and Dyches, and 

followed Dyches across Ontario Street. As Wright 

and Wilcox followed, [appellant] abruptly pulled a 

gun from his pocket and shot Wright in the head, 
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causing Wright to fall to the ground. [Appellant] 

shot Wilcox in the right side of her face, and then 

shot Wright again in the chest as Wright lay 

motionless on the ground. Wilcox ran down the 

block, hid, and called emergency services. Dyches 

began to walk away, heard a click, and looked back 

over his shoulder. [Appellant], with his gun aimed at 

the back of Dyches’ head, told Dyches “Pussy, you 

ain’t seen nothing” and then left the area. 

Luis Rivera, who was inside his residence on the 

2000 block of Emerald Street, heard the three shots, 

looked out the window, saw [appellant] and Dyches 

walking in opposite directions, and saw Wright’s 

body lying on the sidewalk. 

Police arrived, sought medical treatment for 

Wilcox, secured the area, and recovered three (3) 

fired .380 caliber casings from the ground next to 

Wright’s body, which were analyzed by a ballistics 

expert and were found to exhibit similar firing 

characteristics. Wright was already dead and police 

recovered the following items from his body: a semiautomatic Tec-9, 9 millimeter pistol, which was in 

Wright’s waistband; forty dollars ($40.00); a cell 

phone; and a bag containing ten (10) crack cocaine 

packets. Ballistics analysis indicated that the Tec-9 

was operable, contained no cartridges, and did not 

fire the .380 caliber casings. 

Medical Examiner Bennett Preston, M.D., 

performed Wright’s autopsy, which confirmed that 

Wright was shot in the right side of his head at close 

range, e.g., six inches from the gun barrel, that 

Wright sustained head injuries, e.g., terminal fall 

injuries, which were likely incurred when he fell after 

he was shot in the head, that Wright was also shot in 

the chest from a slightly more distant range, that the 

cause of Wright’s death was multiple gunshot 

wounds, and that the manner of Wright’s death was 

homicide. 

Wilcox was hospitalized for four (4) days for a 

shattered jaw, eight (8) shattered teeth, and severe 

lacerations to her face, mouth, and tongue, all of 
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which required reconstructive surgery. She could 

not eat or speak normally for nearly eight (8) 

months due to a metal fixation device on her exterior 

jaw. Wilcox’s jaw cannot be fully reconstructed, 

eight (8) teeth remain missing, and she still suffers 

facial numbness and scarring. 

An investigation ensued, during which Wilcox 

and Dyches gave statements and, when shown an 

array with [appellant]’s photograph, separately 

identified [appellant], who they know as ‘Face,’ as 

the shooter; Wilcox also identified Dyches, by 

photograph, as the eyewitness. A warrant for 

[appellant]’s arrest was issued, but [appellant] could 

not be located and federal authorities were notified 

that [appellant] was a fugitive. 

On February 7, 2007, [appellant] was detained 

in Atlanta, Georgia as a possible fugitive. Atlanta 

Homicide Investigator Brett Zimbrick, preliminarily 

asked [appellant] if he was wanted in Philadelphia 

and [appellant], who appeared sober, responded 

affirmatively, admitted that he shot a man in 

December 2006. [Appellant] received and waived 

Miranda[

1

] warnings and gave a statement to 

Investigator Zimbrick, which was videotaped, in 

which he admitted that he shot Wright and Wilcox, 

claimed that Wright had robbed him of drugs and 

money earlier that day, and claimed that, just before 

he shot Wright, he believed Wright was pulling out a 

gun. [Appellant] was transported to Philadelphia, 

arriving on February 20, 2007, and was brought to 

the Philadelphia Homicide Unit and interviewed by 

Detective William Sierra. [Appellant] received and 

waived Miranda warnings and gave a second 

statement, memorialized in writing, therein 

admitting that he shot Wilcox and Wright on 

December 5, 2006, claiming that he did so after 

Wright pulled out a gun, and also claiming that, in 

the course of that same day, he had a couple of 

drinks, he was robbed by Wright, he purchased ‘wet’ 

or PCP, and he made various cocaine sales. 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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On April 25, 2007, Dyches testified at 

[appellant]’s preliminary hearing in this case. On 

that day and for the next six (6) months, Dyches 

was in custody for an unrelated case and was housed 

at the Philadelphia Detention Center (“PDC”), 

cellblock “G”.

On occasion, inmates housed in separate 

cellblocks at the Detention Center are able to 

interact with each other in the kitchen, church, 

medical center, and gym. 

On August 3, 2007, as Philadelphia Corrections 

Officer Chi Haliburton, an officer with fourteen 

years[’] experience, was on duty at the Philadelphia 

Detention Center and was inspecting incoming mail, 

her suspicious [sic] were aroused by a letter 

postmarked “August 2, 2007,” which was addressed 

to Jamal Bowens, an inmate housed in the 

“D” cellblock, with a return address of ‘Rel-Rel, 2528 

North 15th Street, Philadelphia, Pennsylvania, 

19132[.]” The writer, who identified himself in the 

letter as “Terrell Bowens, PP Number 968912, 7901 

State Road, Philadelphia,” requested that Jamal 

Bowens “take care” of “some bull on your block 

name Neef Buck...that nigga ratting on my 

folks...Bang that nigga the fuck out or fuck that nigga 

up...Make that nigga check on P.C.,[Footnote 4]” and 

enclosed a copy of Dyches’ statement in this matter, 

which was modified with a superimposed copy of 

Dyches’ police photograph. 

[Footnote 4] “P.C.” is a reference to 

protective custody, a heightened security 

custody for inmates who are not 

permitted to mingle with the prison 

population.

Police investigation revealed that Terrell 

Bowens resided at 2528 North 15th Street in 

Philadelphia, had a matching Police Photograph 

Number/PP Number, was in custody at the Curran 

Fromhold Correctional Facility (“CFCF”), 7901 State 
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Road, Philadelphia, and was housed in [appellant]’s 

cellblock. A search of Terrell Bowens’ cell by prison 

personnel led to the recovery of, inter alia,

correspondence addressed to “Rel-Rel,” while a 

search of [appellant]’s cell led to the recovery of, 

inter alia, Dyches’ photograph. 

On August 10, 2007, [appellant] received and 

waived Miranda warnings and gave a third 

statement, in which he admitted that he had given 

Dyches’ photograph to “people on my block, to know 

who is snitching” and that he had “a guy...in the Law 

Library” make the superimposed photocopy of 

Dyches’ photograph and statement. 

Commonwealth v. Ford, No. 1686 EDA 2009, unpublished memorandum 

at 2-5, quoting trial court opinion, 9/16/09 at 2-6 (citations and footnote 

omitted).

The PCRA court set forth the following procedural history:

On February 10, 2009, after a capital jury trial 

before this Court, [appellant] was convicted of 

[first-degree murder, possessing an instrument of 

crime (“PIC”), attempted murder, two counts of 

aggravated assault, two counts of witness 

intimidation, solicitation – murder, and conspiracy –

murder[2]. On February 17, 2009, after the penalty 

hearing and an adequate period of deliberation, the 

jury was discharged as it could not reach a 

unanimous verdict on the existence of aggravating 

circumstances, which would have been the basis for 

a sentence of death. On April 24, 2009, this Court 

sentenced [appellant] to consecutive terms of 

incarceration as follows: Life Imprisonment for 

Murder; two-and one-half to five (21⁄2-5) years for 

PIC; twenty to forty (20-40) years for Attempted 

Murder; ten to twenty (10-20) years for one count of 

Aggravated Assault; ten to twenty years (10-20) on 

each of the two counts of Intimidation; ten to twenty 

 

2 18 Pa.C.S.A. §§ 2502, 907, 901, 2702, 4952, 902, and 903, respectively.
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(10-20) years for Solicitation; ten to twenty (10-20) 

years for Conspiracy; and no further penalty for the 

second Aggravated Assault count, as it merged with 

Attempted Murder. [Appellant’s] May 4, 2009 

Post-Sentence Motion was denied on May 14, 2009.

On June 9, 2009, Appellant appealed to the 

Superior Court of Pennsylvania. On October 26, 

2010, the Superior Court affirmed Appellant’s 

judgment of sentence. On May 3, 2011, the 

Supreme Court of Pennsylvania denied Appellant’s 

Petition for Allowance of Appeal.

On November 1, 2011, Appellant, pro se, 

timely filed the instant PCRA Petition as it was filed 

well within one year of when his conviction became 

final. 42 [Pa.C.S.A. § 9545(b)]. On June 23, 2014, 

court-appointed counsel filed an amended petition on 

Appellant’s behalf. On January 20, 2015, the 

Commonwealth filed a motion to dismiss Appellant’s 

Amended PCRA Petition. On May 18, 2015, after 

reviewing Appellant’s Amended PCRA Petition and 

the Commonwealth’s Motion to Dismiss, the Court 

issued a Notice of Intent to Dismiss pursuant to 

Pa.R.Crim.P. 907 finding that all of the claims raised 

by Appellant were previously litigated, waived, or 

without merit. On June 24, 2015, Appellant, pro se, 

filed a supplemental PCRA petition, which the Court 

did not consider pursuant to judicial policy barring 

hybrid representation because Appellant is being 

represented by counsel. On July 20, 2015, the Court 

formally dismissed Appellant’s Amended PCRA 

Petition.

On July 29, 2015, Appellant timely filed the 

instant appeal to the Superior Court. On July 29, 

2015, the Court ordered Appellant to file a concise 

statement of matters complained of on appeal 

pursuant to Pa.R.A.P. 1925(b) []. Appellant timely 

complied and filed his 1925(b) Statement on 

August 19, 2015. . . . 

PCRA court opinion, 10/14/15 at 1-3 (footnotes omitted).
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Appellant raises the following issues for our review:

A. Whether The Appellant claims that trial counsel 

was ineffective for failing to challenge that his 

statement to the police was involuntary where 

he was illegally held in custody over six hours 

in violation of his 14th and 5th amendment 

rights. All previous counsel were ineffective for 

failing to raise this issue?

B. Whether The Appellant claims that trial counsel 

was ineffective for failing to challenge that he 

was deprived of counsel during critical stages 

in his case- when he gave a statement, during 

and after his transport from Atlanta to 

Philadelphia?

C. Whether The Appellant claims that trial counsel 

was ineffective in failing to fully investigate his 

claim of self-defense or imperfect self-defense?

D. [Whether] The Appellant claims that trial 

counsel was ineffective in failing to retain a 

mental health expert to determine 

[appellant’s] state of mind at the time the 

crime was committed?

E. Whether Trial counsel was ineffective for failing 

to present the testimony of [appellant] who 

could have presented a defense to the matter?

F. Whether Trial counsel was ineffective in that 

trial counsel did not properly argue a 

suppression motion which was based on the 

illegal search and seizure of a letter that was 

taken from his prison cell?

G. Whether Trial counsel was ineffective for failing 

to investigate and challenge the second 

statement Appellant gave to police, which was 

the product of extreme duress?

H. Whether Trial and appellate counsel were 

ineffective for failing to challenge portions of 
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the closing argument which referred to 

[appellant] as an “executioner[”] and a “cold 

and calculating person” and commented on the 

credibility of the witnesses which was so 

prejudicial as to deprive [appellant] of a fair 

trial?

I. Whether Trial and appellate counsel were 

ineffective for failing to request a limiting 

instruction regarding the references to other 

crimes evidence that was introduced at trial?

J. Whether rial [sic] and appellate counsel were 

ineffective for failing to challenge that the 72.5 

to 145 year sentence that was imposed 

consecutively to the life sentence was an abuse 

of discretion?

Appellant’s brief at 6.

We limit our review of a PCRA court’s decision to examining whether 

the record supports the PCRA court’s findings of fact and whether its 

conclusions of law are free from legal error. Commonwealth v. Mason, 

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s 

findings and the evidence of record in a light most favorable to the prevailing 

party. Id.

To be entitled to PCRA relief, the defendant bears the burden of 

establishing, by a preponderance of the evidence, that his conviction or 

sentence resulted from one or more of the circumstances enumerated in 

42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so 

undermined the truth-determining process that no reliable adjudication of 
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guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i) 

and (ii); see also Mason, 130 A.3d at 618 (citations omitted).

Here, appellant’s claims assert that his trial and/or direct-appeal 

counsel provided ineffective assistance.

Counsel is presumed effective, and in order to 

overcome that presumption a PCRA petitioner must 

plead and prove that: (1) the legal claim underlying 

the ineffectiveness claim has arguable merit; 

(2) counsel’s action or inaction lacked any 

reasonable basis designed to effectuate petitioner’s 

interest; and (3) counsel’s action or inaction resulted 

in prejudice to petitioner. With 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. 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. To demonstrate prejudice, a petitioner 

must show that there is a reasonable probability 

that, but for counsel’s actions or inactions, the result 

of the proceeding would have been different. Failure 

to establish any prong of the [] test will defeat an 

ineffectiveness claim. 

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

Appellant first complains that “trial counsel was ineffective for failing to 

challenge that his [second] statement to the police was involuntary where he 

was illegally held in custody over six hours in violation of his 14th and 

5

th amendment rights.” (Appellant’s brief at 11.) In support, appellant 

relies on Commonwealth v. Davenport, 370 A.2d 301 (Pa. 1977). 
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Davenport, however, has since been overruled by Commonwealth v. 

Perez, 845 A.2d 779 (Pa. 2004), wherein our supreme court held that 

“voluntary statements by an accused, given more than six hours after arrest 

when the accused has not been arraigned, are no longer inadmissible 

per se. Rather, . . . regardless of the time of their making, courts must 

consider the totality of the circumstances surrounding the confession.” 

Perez, 845 A.2d at 787 (footnote omitted); see also Commonwealth v. 

Housman, 986 A.2d 822 (Pa. 2009). In his brief, appellant subsequently 

concedes that Davenport “has been so altered over its history that it is 

certainly not a bright line rule,” but “argues that the time that passed and 

the conditions under which [appellant] was held deprived him of his basic 

rights and his statement should have been suppressed.” (Appellant’s brief 

at 14.) Therefore, the gravamen of appellant’s first complaint is that his 

second confession was not voluntary due to the conditions of his transport 

from Atlanta to Philadelphia and the circumstances of that confession.

Contrary to appellant’s claim, the record reflects that trial counsel 

raised the issue of the voluntariness of both of appellant’s confessions prior 

to trial. (Motion to suppress identification, physical evidence, and/or 

statement, 1/13/09; Docket #4.) Moreover, the claim was raised, 

addressed, and rejected on direct appeal. There, appellant contended, 

among other things, that his transfer from Atlanta to Philadelphia “drained 

him of the ability to withstand suggestion and coercion.” Ford, No. 1686 
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EDA 2009 at 9. Based on the record, this court was unable to conclude that 

the suppression court abused its discretion in finding that driving from 

Atlanta to Philadelphia and then being interviewed was physically or 

psychologically detrimental to appellant so as to require suppression of the 

confession appellant made in Philadelphia. Id. at 10. Therefore, not only 

does the record belie appellant’s claim that trial counsel failed to challenge 

the voluntariness of his second confession, but on direct appeal, this court 

deemed the claim meritless. Consequently, appellant’s claim amounts to 

nothing more than an attempt to again challenge the voluntariness of his 

confession and it must fail.

Appellant next complains that “trial counsel was ineffective for failing 

to challenge that he was deprived of counsel during critical stages in his 

case- when he gave a statement, during and after his transport from Atlanta 

to Philadelphia.” (Appellant’s brief at 15.)

Once again, the record belies appellant’s contention. The record 

reflects that in appellant’s suppression motion, trial counsel raised the issue 

of appellant being “questioned by the police without his consent or without 

waiving his rights” and also claimed that appellant “was not read his 

Miranda rights prior to the questioning.” (Motion to suppress identification, 

physical evidence, and/or statement, 1/13/09; Docket #4.) The issue was 

also raised, addressed, and rejected on direct appeal. There, this court 

noted that the suppression court found the testimony of Detective William 
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Sierra credible. Ford, No. 1686 EDA 2009 at 9. Moreover, this court found 

that the record demonstrated that Detective Sierra read appellant his 

Miranda rights and then asked and typed appellant’s answers to seven 

questions pertaining to those rights. Id. at 10, citing notes of testimony, 

1/27/09 at 23. Appellant was then given the typed pages containing his 

answers to the Miranda questions to review. Id., citing notes of testimony, 

1/27/09 at 25. Appellant initialed each question, signed each page, and 

agreed to an interview. Id., citing notes of testimony, 1/27/09 at 25. 

Therefore, not only does the record belie appellant’s contention that trial 

counsel failed to challenge appellant’s claimed deprivation of counsel in 

violation of his Miranda rights, but on direct appeal, this court found no 

abuse of discretion in the suppression court’s denial of appellant’s motion to 

suppress because, among other things, the record supported the conclusion 

that appellant was properly Mirandized before he voluntarily confessed. 

Therefore, appellant’s claim amounts to nothing more than an attempt to 

once again challenge the admissibility of his confession and it must fail.

Appellant next complains that “trial counsel was ineffective in failing to 

fully investigate his claim of self-defense or imperfect self-defense.” 

(Appellant’s brief at 18.) Appellant’s argument on this issue is that:

[t]rial counsel failed to properly investigate and 

present evidence that after being robbed by the 

decedent and his girlfriend, [appellant] did in fact 

arm himself. Upon returning to gather his personal 

belonging [sic] scattered on the ground. [sic] 

[Appellant] observed the decedent and his girlfriend 
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crossing the street, fearing for his life and being 

accosted again [appellant] withdrew his weapon and 

crossed to the opposite side of the street in an effort 

to avoid any form of confrontation. At which point 

the decedent and his girlfriend crossed the street 

again. Not knowing or being able to discern the 

motive they had, [appellant] panicked and opened 

fired [sic] upon them. [Appellant] maintains that he 

believed that he acted with legal justification when 

he discharged the firearm and counsel was 

ineffective for failing to explore this defense.

Id. at 19-20. Once again, the record belies appellant’s claim. The record 

reflects that trial counsel pursued the theory of self-defense or imperfect 

self-defense by first introducing the theory in his opening statement, as 

follows:

[DEFENSE COUNSEL]: I submit to you that the 

evidence will show that [appellant] is coming down 

the street, he believes that Mr. Wright is pulling a 

weapon on him. He reacts, and fires his weapon. 

He didn’t mean to kill anybody. He thought that his 

life was in jeopardy. He was protecting himself.

Notes of testimony, 1/28/09 at 92. Trial counsel also cross-examined police 

investigator Brett Zimbrick regarding a statement appellant made to police 

that indicated appellant acted in self-defense, with the investigator 

confirming that appellant stated that appellant believed Wright was about to 

pull a gun on him. (Notes of testimony, 1/29/09 at 48.) Moreover, 

appellant’s February 20, 2007 confession was read into the record. In that 

confession, appellant claimed that he shot Wright because Wright pulled a 

gun out on him. (Notes of testimony, 2/3/09 at 73-75.) Additionally, trial 

counsel cross-examined the medical expert with respect to appellant’s 
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self-defense theory. (Notes of testimony, 2/2/09 at 66-68.) The record 

further reflects that the trial court charged the jury on self-defense. (Notes 

of testimony, 2/6/09 at 92-94.)

Moreover, on direct appeal, appellant contended, among other things, 

that the evidence was insufficient to sustain his first-degree murder 

conviction because it established that he acted in self-defense. Ford, 

No. 1686 EDA 2009 at 15 & 18. After reviewing the record, this court 

concluded that the Commonwealth disproved appellant’s claim on 

self-defense beyond a reasonable doubt. Id. at 19. Therefore, this claim 

must fail.

Appellant next complains that “trial counsel was ineffective in failing to 

retain a mental health expert to determine [appellant’s] state of mind at the 

time the crime was committed.” (Appellant’s brief at 21.)

Here, after recitation of rules of law, appellant sets forth the following 

three-sentence argument to support this contention:

[Appellant] argues that if the original jury had been 

presented with evidence of his mental health, drug 

usage, and diminished intellectual capacity, there is 

a reasonable probability that the jury would have 

determined that he lacked the ability to formulate a 

specific intent to kill. Trial counsel made no effort to 

investigate the mental state of [appellant]. Given 

the seriousness of the charges–first degree murder, 

it fell below the standard of effectiveness not [sic] 

have the [appellant] evaluated and he should be 

granted a new trial.
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Appellant’s brief at 21-22. The record, however, reflects that appellant’s 

defense strategy at trial was self-defense. Trial counsel cannot be found 

ineffective for failing to present the inconsistent defense of inability to form 

specific intent. Therefore, this claim must fail.

Appellant next claims that “[t]rial counsel was ineffective for failing to 

present the testimony of [appellant] who could have presented a defense to 

the matter.” (Appellant’s brief at 23.) Once again, the record belies 

appellant’s contention. The record reflects that appellant exercised his 

constitutional right to remain silent and not present evidence on his behalf, 

as follows:

THE COURT: Now, do you understand that you do 

have a right, under the Constitution of the United 

States of America, as well as the Constitution of the 

Commonwealth of Pennsylvania, to present 

evidence, and to testify on your own behalf?

Do you understand that?

[APPELLANT]: Yes, Sir.

THE COURT: You also have the right not to do that.

Do you understand that, also?

[APPELLANT]: Yes.

THE COURT: I have been informed by your attorney, 

both of them, that it is your decision that you will not 

present testimony, and you will not present 

evidence, and it is your desire at trial to remain 

silent; is that correct?

[APPELLANT]: Yes, Sir.
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. . . .

THE COURT: Do you thoroughly understand the 

decision that you are making right now?

[APPELLANT]: Yes.

THE COURT: Is it your desire not to testify on your 

own behalf?

[APPELLANT]: Yes.

THE COURT: Is it your desire not to present 

evidence on your behalf? 

[APPELLANT]: It is.

Notes of testimony, 2/4/09 at 179 & 181. Therefore, this claim necessarily 

fails.

Appellant next complains that “[t]rial counsel was ineffective in that 

trial counsel did not properly argue a suppression motion which was based 

on the illegal search and seizure of a letter that was taken from [appellant’s] 

prison cell.” (Appellant’s brief at 25.) On this issue, appellant presents the 

following four-sentence argument:

The letter was taken and [appellant] was 

questioned about it even though [appellant] was 

represented by counsel at the time there is is [sic] a 

possibility that due to trial counsel’s actions or 

inactions to prevent this evidence from being 

admitted, the outcome may have been different. 

The correctional officer acted as an agent for the 

Philadelphia Police Department when the evidence 

was taken from [appellant’s] prison cell. Trial 

counsel was ineffective for failing to protect 

[appellant’s] 4th and 14th Amendment rights when he 

conceded that the search of the prison cell was legal. 
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It violated the prison policy and also violated the 

laws regarding search and seizure.

Appellant’s brief at 25.

The gravamen of appellant’s complaint is his dissatisfaction with the 

trial court’s ruling on his suppression motion regarding the constitutionality 

of the search of his prison cell. This issue was raised, reviewed, and 

rejected on direct appeal wherein this court found no violation of appellant’s 

constitutional rights. Ford, No. 1686 EDA 2009 at 10-12. Therefore, this 

claim fails.

Appellant next complains that “[t]rial counsel was ineffective for failing 

to investigate and challenge the second statement [appellant] gave to 

police, which was the product of extreme duress.” (Appellant’s brief at 26.) 

Once again, appellant complains about the conditions of his transport from 

Atlanta to Philadelphia in an attempt to demonstrate the involuntariness of 

his second confession. This claim does nothing more than reiterate the 

arguments advanced in appellant’s first issue on appeal, which were 

unsupported by the record and raised, reviewed, and rejected on direct 

appeal. Therefore, this claim must fail.

Appellant next complains that “[t]rial and appellate counsel were 

ineffective for failing to challenge portions of the closing argument which 

referred to [appellant] as an ‘executioner’ and a ‘cold and calculating person’ 

and commented on the credibility of the witnesses which was so prejudicial 

as to deprive [appellant] of a fair trial.” (Appellant’s brief at 27.) Once 
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again, the record belies appellant’s contention. The record reflects that trial 

counsel placed numerous objections on the record during the 

Commonwealth’s closing argument and that trial counsel also moved for a 

mistrial. (Notes of testimony, 2/5/09 at 131-222.) Moreover, on direct 

appeal, appellant challenged the Commonwealth’s closing argument, 

claiming that the prosecutor engaged in repeated and blatant misconduct for 

alleged instances of discussing facts not in evidence, asking the jury to place 

themselves in the victim’s shoes, introducing facts not pertaining to the 

case, injecting personal opinions, using a faith-based argument, and 

revealing that a witness was in protective custody. Ford, No. 1686 EDA 

2009 at 23-24. On review, this court agreed with the trial court that the 

statements, considered as a whole, did not prejudice the jury in such a 

manner that it could not weigh the evidence and render a true verdict. Id.

at 24. Moreover, this court noted that even assuming that the 

Commonwealth’s closing remarks were sufficiently prejudicial, “[i]n light of 

the overwhelming evidence of guilt presented against [appellant], we would 

not reverse and remand the case for a new trial because of those remarks.” 

Id. at 24-25. Therefore, this claim fails.

Appellant next complains that “[t]rial and appellate counsel were 

ineffective for failing to request a limiting instruction regarding the 

references to other crimes evidence that was introduced at trial.” 

(Appellant’s brief at 29.) Appellant then contends that:
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[t]he Commonwealth’s witness Detective Zimbrick 

testified that [appellant] provided a statement in 

which he alleged he was en route to sale [sic] drugs 

when the victim was shot. There was a clear 

insinuation that [appellant] was involved in drug 

dealing activity and the jury could have inferred that 

[appellant] was engaged in drug activity.

Id.

The gravamen of appellant’s complaint again goes to the voluntariness 

of appellant’s confession. As discussed in appellant’s first claim of error, this 

issue was raised, reviewed, and rejected on direct appeal, and appellant’s 

statements were admissible. Therefore, counsel cannot be deemed 

ineffective for failing to request a limiting instruction for the statements 

appellant made in his voluntary confession which were subsequently 

admitted into evidence and used against him. Therefore, this claim fails.

Appellant finally argues that “[t]rial and appellate counsel were 

ineffective for failing to challenge that the 72.5 to 145-year sentence that 

was imposed consecutively to the life sentence was an abuse of discretion.” 

(Appellant’s brief at 31.) Following a recitation of inapplicable law, appellant 

sets forth the following three-sentence argument:

In the instant matter, [appellant] was already 

sentenced to a sentence of life without parole. The 

court did not place the appropriate reasons on the 

record and used [appellant’s] prior criminal history 

which had already been included in his sentencing 

guidelines to enhance his sentence. The court could 

have imposed a concurrent period of incarceration 

which would have been sufficient.

Appellant’s brief at 31.
J. S63006/16

- 20 -

Appellant waives this claim because he fails to cite to any authority 

that supports his position and he fails to fully develop any meaningful 

argument concerning this claim. See Commonwealth v. Rompilla, 983 

A.2d 1207, 1210 (Pa. 2009); Commonwealth v. Brougher, 978 A.2d 373 

(Pa.Super. 2009) (claim is waived if there is no citation to authority); 

Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998) (petitioner 

waives undeveloped and/or unclear claims). Moreover, the argument that a 

concurrent and not a consecutive sentence should have been given would 

not have presented a substantial question on appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016