J-S78010-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEFFREY CEPEDA

Appellant No. 821 MDA 2014

Appeal from the PCRA Order April 23, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0001759-2005

BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 19, 2015

Appellant, Jeffrey Cepeda, appeals from the order entered in the Berks 

County Court of Common Pleas, which dismissed his first petition brought 

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm. 

The PCRA court’s opinion sets forth the relevant facts and procedural 

history of this case as follows:

Appellant was convicted of third degree murder and 

related charges in connection with the shooting death of 

19-year-old Rene Castro, known by some witnesses as 

“Buzz” (...“Victim Rene Castro”), in the early morning 

hours of December 31, 2004. At trial, the Commonwealth 

presented multiple witnesses to the shooting, including 

Priscilla Rodriguez, Robert Cairnes, Crystal Talarico, Erica 

Nowotarski, Jared Hopgood, Amy Smith, and Omar 

Serrano. All of these witnesses saw the events of 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
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December 31, 2004 unfold from various vantage points 

along Perkiomen Avenue in Reading, Berks County, 

Pennsylvania. They each testified to substantially the 

same facts: that Appellant and Victim Rene Castro were 

engaged in a verbal argument as they walked along 

Perkiomen Avenue, that Victim Rene Castro walked onto a 

porch, a physical altercation ensued between the men, and 

Appellant ultimately shot Victim Rene Castro three times. 

None of the witnesses characterized Victim Rene Castro as 

the aggressor in the argument, and no one saw a gun in 

his hand prior to the shooting. Several Commonwealth 

witnesses testified that they saw Appellant shoot Victim 

Rene Castro, and that eventually Victim Rene Castro 

produced a gun, but by that time Appellant was already 

running away. 

Commonwealth witness Priscilla Rodriguez testified that, in 

the very early morning hours of December 31, 2004, the 

sounds of an argument in the street caught her attention. 

Upon looking out her window, she recognized a man she 

knew as “Buzz” (Victim Rene Castro), and saw Appellant 

shoving Victim Rene Castro as the two men walked on 

Perkiomen Avenue toward 17th Street. She further 

testified that Appellant “pushed (Victim Rene Castro) in his 

face” and then walked away, crossing the street. After a 

further exchange of words and gestures, however, 

Appellant ran back across the street and followed Victim 

Rene Castro onto the porch. She then heard the sound of 

punching, followed by three gun shots, fixed in rapid 

succession. She saw Appellant walk away, look back at 

Victim Rene Castro on the porch, and then run away from 

the scene. 

Similarly, Commonwealth witness Jarod Hopgood, who did 

not personally know [Victim Rene Castro] but recognized 

him from the neighborhood, testified that he had been on 

the phone with Priscilla Rodriguez on December 31, 

2004[,] and recalled her telling him that she heard an 

argument in front of her house on Perkiomen. Avenue. 

Hopgood lived on the same block as Ms. Rodriguez, and his 

first floor apartment faced the street. He went out onto 

his porch and watched the argument unfolding on the 

street. Mr. Hopgood also noticed two other people in the 

street or on the sidewalk, but it appeared to him that they 
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were not involved in the argument. He testified:

Well, I saw—I saw Rene (Victim Rene Castro). He 

was standing there. And someone was arguing with 

him. And the person—Rene wasn’t saying too much. 

It was the other person who was yelling at him. 

At some point, Victim Rene Castro threw his hands up and 

walked away, but the other person (later identified as 

Appellant) followed him, continuing to yell. Appellant 

turned and began walking away from Victim Rene Castro, 

but then there was a yell and Appellant ran, specifically he 

sprinted, back towards the porch where Victim Rene Castro 

was then standing. “When he started sprinting, I went 

into the house. I didn’t—I got a bad feeling.” When Mr. 

Hopgood got inside, one of his friends reported that the 

men had begun to fight. Wanting to watch the fight, he 

decided to return to his front porch. Before he made it 

back outside, however, he heard gunshots. He saw 

Appellant standing in front of Victim Rene Castro with his 

arm extended toward Mr. Castro, but did not see a gun. 

Mr. Hopgood retreated to his apartment a second time, but 

at some point came back outside and saw Victim Rene 

Castro “slumped in the vestibule” of the house where the 

shooting had taken place. 

Commonwealth witness Robert Cairnes, who was Jarod 

Hopgood’s roommate at 1621 Perkiomen Avenue at the 

time of the shooting, testified that on December 31, 

2004[,] while hanging out with friends at home, he heard 

an argument outside his apartment. He walked over to a 

bay window facing Perkiomen Avenue, and looked out 

through the blinds. He testified to seeing three men 

walking and arguing, coming from the direction of the APlus mini market towards his residence. Mr. Cairnes 

moved to the vestibule in the front of the apartment 

building to watch. He recognized “Buzz” (Victim Rene 

Castro), and saw that he was involved in an argument with 

two other men, who were yelling. Mr. Cairnes testified 

that the argument was loud enough to be heard from 

inside his apartment. It appeared to him that Appellant 

was arguing with Victim Rene Castro and that the third 

man was “just tagging along,” not participating in the 

argument. At some point, Mr. Cairnes saw Victim Rene 
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Castro cross the street to “Omar’s house” (Commonwealth 

witness Omar Serrano), directly across from the witness’ 

house. He saw Victim Rene Castro knock on the window of 

the house a few times, and then enter the building’s front 

vestibule. Mr. Cairnes then saw Mr. Omar Serrano come 

out of the residence and stand with Victim Rene Castro. 

Mr. Cairnes did not see anything in either man’s hands 

prior to the fight that ensued, and he did not see Victim 

Rene Castro hit Appellant at any time. He saw Victim Rene 

Castro reel backward after being hit by Appellant, and 

stated that Mr. Serrano was not a participant in the fight. 

After Victim Rene Castro was knocked back by Appellant’s 

blows, Mr. Cairnes testified that he saw Appellant reach 

towards his waist, and then he heard shots. “I just seen 

him reach for his waist. And the next thing you know 

three gunshots are fired.” He said the shots were fired

while Victim Rene Castro was recovering from the blow to 

the head. Mr. Cairnes then saw Appellant turn and run 

down the street and noticed that the other people he had 

seen earlier were also running. Although Mr. Cairnes did 

not see anything in his hand prior to the shooting, he 

testified that, after being shot, Victim Rene Castro 

stumbled back into the vestibule or hallway, and when he 

reappeared he had a gun in his hand. By the time Victim 

Rene Castro re-emerged with the weapon, Appellant was 

already across the street and running away. On crossexamination, Mr. [Cairnes] reiterated that before [Victim 

Rene Castro] was shot, [Mr. Cairnes] did not see Victim 

Rene Castro reach for anything. 

Commonwealth witness Crystal Talarico testified that on 

the night of the shooting, she had been at 1621 Perkiomen 

Avenue with Robert Cairnes, Erica Nowotarski, Eddie 

Schwambach, Jarod Hopgood and Phil Reifsnyder when she 

heard yelling “out front.” The entire group went to the 

front porch, with the exception of Phil Reifsnyder who was 

already sleeping. She saw two people arguing, and also 

saw two other people who did not appear to be involved in 

the argument. Like the other witnesses, Crystal Talarico 

did not see a gun in anyone’s hand prior to the shooting, 

however she did see Appellant extend his right arm, heard 

three shots, and simultaneously saw “some kind of light go 

off,” which she further described as “like sparks.” 
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Commonwealth witness Erica Nowotarski testified that she, 

too, heard arguing on December [31], 2004[,] outside the 

residence on Perkiomen Avenue, which prompted her to 

look outside where she saw “two guys in the street 

arguing.” She also noted that there were other people on 

the street, and observed that Victim Rene Castro was 

wearing a fur-trimmed jacket. With respect to the 

argument, Ms. Nowotarski testified that it looked to her 

like Victim Rene Castro did not wish to argue, because, as 

she explained: “Rene was walking away from it. He didn’t 

want anything to do with it.” She saw Victim Rene Castro 

walk to a house and knock on the door, and then saw 

Appellant come up on the porch behind Victim Rene Castro 

and hit him in the head. Appellant hit Victim Rene Castro 

on the head as he was walking away. She never saw 

Victim Rene Castro punch Appellant. Ms. [Nowotarski] 

then testified that she saw Appellant pull out his gun, hold 

it out towards Victim Rene Castro, and then she heard 

three shots. 

Commonwealth witness Amy Smith, who lived on the 

sixteen hundred block of Perkiomen Avenue at the time of 

the shooting, testified that at 12:49 a.m. on December 31, 

2004[,] she was watching TV in her first-floor living room 

when she heard arguing. She looked outside and saw two 

men engaged in an argument, one of which was bald and 

the other of which was wearing a coat with fur around the 

hood. She testified that although both men were arguing, 

the bald one was doing “more yelling.” Ms. Smith did not 

see anything in either of the men’s hands. She indicated 

that the man with the fur-trimmed hood started walking 

away first, and that the bald man followed him. The men 

then walked out of her view, and, after approximately ten 

or fifteen minutes, she heard gunshots and called 911. 

Commonwealth witness Omar Serrano testified that on 

December 31, 2004[,] he was residing at 1622 Perkiomen 

Avenue in the City of Reading, and that in the early 

morning hours of that day he was watching television in 

the living room when he heard a knock at his window. He 

went to the window to see who it was and 

recognized...Victim Rene Castro. Mr. Serrano opened the 

front door and saw Victim Rene Castro and another 

individual arguing on the front porch. He identified that 
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other person as Appellant. Mr. Serrano testified that 

Appellant began to hit Victim Rene Castro on the head, 

punching him with both hands while Victim Rene Castro 

attempted to shield himself from the blows. Mr. Serrano 

testified that he could see Victim Rene Castro’s hands, and 

that there was nothing in them. Mr. Serrano testified that 

he intervened in the fight, and that Appellant went to the 

steps while Victim Rene Castro remained on the porch with 

him. When asked what happened next, he stated, 

Appellant “pulled out a gun and shoot him.” He elaborated 

a bit, saying that Appellant had pulled a gun from his 

waist, pointed it at Victim Rene Castro, and shot him. He 

also testified definitively that Victim Rene Castro did not 

have a gun in his hands at the time he was shot. Mr. 

Serrano then ran inside the building to his apartment, and, 

after a few minutes, called 911. 

(PCRA Court Opinion, filed July 28, 2014, at 2-8) (internal citations to record 

omitted). A jury convicted Appellant on April 20, 2006, of third-degree 

murder, two counts of aggravated assault, firearms not to be carried without 

a license, and two counts of possessing instruments of crime. The court 

sentenced Appellant on June 23, 2006, to an aggregate term of fifteen (15) 

to thirty (30) years’ imprisonment. Appellant did not file any post-sentence 

motions or a direct appeal. 

The PCRA court’s opinion further summarized:

On November 30, 2006[,] Appellant filed a pro se [PCRA] 

petition seeking restoration of his appellate rights, which 

[the PCRA court] granted on July 14, 2008. Thereafter 

Appellant filed a direct appeal nunc pro tunc. On August 9, 

2009[,] Appellant’s appeal was quashed as untimely, and 

he was directed to file a PCRA petition to restore his direct 

appeal rights. Accordingly, on October 8, 2009, Appellant 

filed a second PCRA petition, which [the PCRA court] 

granted and Appellant again appealed to the Superior 

Court. His judgment of sentence was affirmed on January 

12, 2011[,] and the Pennsylvania Supreme Court denied 
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Appellant’s Petition for Allowance of Appeal on August 30, 

2011. On August 17, 2013, Appellant filed another pro se, 

check-the-box motion for post conviction collateral relief. 

[The PCRA court] appointed PCRA counsel...to represent 

Appellant in the disposition of his PCRA claims. After 

exhaustively reviewing the record and finding no issues of 

merit, PCRA counsel filed a “No Merit” Letter pursuant to 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 

1988) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988). ...

(PCRA Court Opinion at 1-2). On February 24, 2014, the PCRA court 

granted counsel’s motion to withdraw, and issued notice of its intent to 

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. 

Appellant filed a pro se response on March 19, 2014. The PCRA court 

subsequently denied Appellant’s petition on April 23, 2014. Appellant timely 

filed a pro se notice of appeal on May 12, 2014. The PCRA court ordered 

Appellant on May 21, 2014, to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied 

pro se on June 4, 2014. 

Appellant raises the following issues for our review:

WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR, 

WHICH WAS STRUCTURAL IN NATURE, WHEN IT 

INSTRUCTED THE JURY IN SUCH A WAY THAT THE 

COMMONWEALTH WAS PERMITTED TO OBTAIN A THIRD 

DEGREE MURDER CONVICTION BY PROVING THE 

ELEMENTS OF UNREASONABLE BELIEF SELF-DEFENSE, 

WHICH IS CLEARLY, AND STATUTORILY, ONLY 

VOLUNTARY MANSLAUGHTER? 

WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE WHEN [COUNSEL] FAILED TO OBJECT TO 

THE TRIAL COURT’S ERRONEOUS AND MISLEADING JURY 

INSTRUCTIONS WITH REGARD TO THIRD DEGREE
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MURDER AND VOLUNTARY MANSLAUGHTER? 

WHETHER APPOINTED PCRA COUNSEL RENDERED 

INEFFECTIVE ASSISTANCE BY FAILING TO HAVE ANY 

CONTACT WITH HIS CLIENT, INCLUDING NOT 

RESPONDING TO CORRESPONDENCE, BY FAILING TO FILE 

A PROPER “NO MERIT” LETTER WHEN COUNSEL MERELY 

REVIEWED THE PRO SE PCRA PETITION AND DID NOT 

CONDUCT A COMPLETE REVIEW OF THE TRIAL RECORD, 

AND BY COMPLETELY IGNORING THE PURPOSE OF PCRA 

REVIEW? 

(Appellant’s Brief at 4). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the 

findings of the PCRA court if the record contains any support for those 

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal 

denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, 

however, to the court’s legal conclusions. Commonwealth v. Ford, 44 

A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a 

PCRA hearing as a matter of right; the PCRA court can decline to hold a 

hearing if there is no genuine issue concerning any material fact, the

petitioner is not entitled to PCRA relief, and no purpose would be served by 

any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338 

(Pa.Super. 2012). 
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In his first and second issues combined, Appellant argues trial counsel 

was ineffective for failing to object to the trial court’s jury instruction. 

Specifically, Appellant alleges the following jury instructions were in error:

[T]here can be no malice when certain reducing 

circumstances are present. When these circumstances are 

present, a killing may be voluntary manslaughter but not 

murder. This is true, for example, when a defendant kills 

in the heat of passion following serious provocation or 

when [a] defendant kills a person under the unreasonable 

mistaken belief in justifying circumstances; in other words, 

that a defendant killed a person under an unreasonable 

mistaken belief that he had the right to use self-defense. 

Accordingly, you can find...malice and find [Appellant] 

guilty of murder only if you are satisfied beyond a 

reasonable doubt that [Appellant] was not acting under a 

sudden and intense passion resulting from serious 

provocation by the victim or that he was acting under 

an unreasonable belief that the circumstances were 

such that if they existed would have justified the killing. 

(N.T. Trial, 4/17/06-4/20/06, at 613-14) (emphasis added). Appellant 

claims the jury instructions, when read as a whole, were misleading and 

caused the jury to find Appellant guilty of third-degree murder rather than 

voluntary manslaughter. Appellant avers the jury misinterpreted the court’s 

instructions, and there is a substantial possibility the jury rested Appellant’s 

third-degree murder conviction on the court’s misleading instructions. 

Appellant affirms neither defense counsel objected to the erroneous jury 

instructions, which led to Appellant’s conviction for third degree murder, and 

a more severe sentence than would have otherwise been imposed. 

Appellant also asserts trial counsel could not have had any rational, strategic 
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basis for failing to object to the jury instructions. Appellant insists a timely 

objection would have permitted the court to correct or clarify the jury 

charge. Appellant maintains there is a reasonable probability that, but for 

trial counsels’ failure to object, the jury would have returned a guilty verdict 

for voluntary manslaughter rather than third-degree murder. Appellant 

concludes this Court should reverse the PCRA court’s order and remand for 

further proceedings, or, in the alternative, vacate Appellant’s conviction for 

third-degree murder and grant him a new trial. We disagree. 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, the petitioner is 

required to demonstrate that: (1) the underlying claim is of arguable merit; 

(2) counsel had no reasonable strategic basis for his action or inaction; and, 

(3) but for the errors and omissions of counsel, there is a reasonable 

probability that the outcome of the proceedings would have been different. 

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The 

failure to satisfy any prong of the test for ineffectiveness will cause the claim 

to fail. Williams, supra. 

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit....” Commonwealth 

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot 
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be found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004). 

Once this threshold is met we apply the ‘reasonable basis’ 

test to determine whether counsel’s chosen course was 

designed to effectuate his client’s interests. If we conclude 

that the particular course chosen by counsel had some 

reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective. 

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted). 

Prejudice is established when [an appellant] demonstrates

that counsel’s chosen course of action had an adverse

effect on the outcome of the proceedings. The [appellant]

must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome. In [Kimball, supra], we held 

that a “criminal [appellant] alleging prejudice must show 

that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. 

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 

(2002) (some internal citations and quotation marks omitted). 

“[T]o succeed on an allegation of...counsel’s ineffectiveness...a postconviction petitioner must, at a minimum, present argumentation relative to 

each layer of ineffective assistance, on all three prongs of the ineffectiveness 

standard....” Commonwealth v. D’Amato, 579 Pa. 490, 500, 856 A.2d 

806, 812 (2004) (internal citations omitted). “[A] petitioner does not 

preserve a...claim of ineffectiveness merely by focusing his attention on 

whether...counsel was ineffective. Rather, the petitioner must also present 

argument as to how the second and third prongs of the Pierce test are met 
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with regard to the...claim.” Commonwealth v. Santiago, 579 Pa. 46, 69, 

855 A.2d 682, 696 (2004). “[A]n undeveloped argument, which fails to 

meaningfully discuss and apply the standard governing the review of 

ineffectiveness claims, simply does not satisfy [the petitioner’s] burden of 

establishing that he is entitled to any relief.” Commonwealth v. Bracey, 

568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001). 

A jury charge is erroneous only if the charge as a whole is inadequate, 

unclear, or has a tendency to mislead or confuse, rather than clarify, a 

material issue. Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 

2008), appeal denied, 606 Pa. 644, 992 A.2d 885 (2010) (citation omitted). 

A charge is considered adequate unless the jury was 

palpably misled by what the trial judge said or there is an 

omission which is tantamount to fundamental error. 

Consequently, the trial court has wide discretion in 

fashioning jury instructions. 

Id.

The trial court may use its own form of expression to 

explain difficult legal concepts to the jury, as long as the 

trial court’s instruction accurately conveys the law. A 

verdict will not be set aside if the instructions of the trial 

court, taken as a whole, and in context, accurately set 

forth the applicable law. 

Commonwealth v. Jones, 858 A.2d 1198, 1201 (Pa.Super. 2004). “Error 

cannot be predicated on isolated excerpts of the charge...it is the general 

effect of the charge that controls.” Id. (quoting Commonwealth v. 

Pursell, 555 Pa. 233, 724 A.2d 293, 314 (1999) (quotation marks omitted). 

When viewed in its entirety, an isolated misstatement is insignificant where 
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it fails to prejudice the appellant, and the charge is otherwise free of errors. 

See Commonwealth v. Mickens, 597 A.2d 1196, 1204-05 (Pa.Super. 

1991). Therefore, under these circumstances, an appellant is not entitled to 

a new trial. See id. at 1205. 

Instantly, the trial court instructed the jury on the elements of thirddegree murder, including the necessity of proof beyond a reasonable doubt 

that Appellant committed the killing with malice. (See N.T. Trial, 4/17/06-

4/20/06, at 611-12.) The court also summarized the distinctions between 

murder and manslaughter:

Murder requires malice. Manslaughter does not. 

First degree murder requires the specific intent to kill. 

Third degree murder is any other murder. 

Voluntary manslaughter is basically an intentional killing 

from which malice is not proven because of passion and 

provocation or because [a] defendant had an unreasonable 

mistaken belief in justifying circumstances such as an 

unreasonable mistaken belief in self-defense. 

Id. at 618. When read in context, the court’s instructions as a whole clearly

conveyed only murder requires malice, but voluntary manslaughter does 

not. See Baker, supra. One alleged misstatement in thirty-six pages of 

jury instructions did not mislead the jury or prejudice Appellant. See id.; 

Mickens, supra. Therefore, we are unable to conclude the court’s jury 

instructions constitute reversible error. Accordingly, Appellant’s 

ineffectiveness claim lacks arguable merit. See Pierce, supra. 

With regard to Appellant’s third issue, claiming ineffectiveness of PCRA 
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counsel, after a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable James M. 

Bucci, we conclude Appellant’s third issue merits no relief. The PCRA court 

opinion comprehensively discusses and properly disposes of the question 

presented. (See PCRA Court Opinion at 9) (finding: Appellant failed to 

prove any of three prongs for ineffective assistance of counsel claims; 

Appellant was unable to demonstrate prejudice because he failed to prove 

that, but for PCRA counsel’s acts or omissions, outcome of PCRA petition 

would have been different; PCRA counsel followed requirements of PCRA and 

accompanying law in filing of “No Merit” letter).2 The record supports the 

PCRA court’s decision; therefore, we see no reason to disturb it. As for 

Appellant’s third issue, we affirm on the basis of the PCRA court’s opinion. 

Accordingly, we affirm the PCRA court’s order dismissing Appellant’s petition. 

____________________________________________

2 We note two citation matters in the PCRA court’s opinion at page 9. First, 

the correct citation for the Pierce case is Commonwealth v. Pierce, 537 

Pa. 514, 524, 645 A.2d 189, 194 (1994). Second, Commonwealth v. 

Rios, 920 A.2d 790, 799 (Pa. 2007) was overruled on other grounds; 

however, the proposition cited is still good law. 
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2015
Circulated 02/06/2015 10:44 AM

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COMMONWEALTH OF PENNSYLVANIA 

v. 

JEFFREY CEPEDA 

Alisa Hobart, Esquire, 

Attorney for the Commonwealth 

Jeffrey Cepeda, 

Defendant, pro se 

: IN THE COURT OF COMMON PLEAS 

: BERKS COUNTY, PENNSYL VANIA 

: CRIMINAL DIVISION 

: CP-06-CR-0001759-2005 

: Assigned to: Judge James M. Bucci 

July 21, 2014 Memorandum Opini J. Bucci, J. 

PROCEDURAL HISTORY 

The defendant, Jeffrey Cepeda ("Appellant"), was convicted by ajury of third degree 

murder, two counts of aggravated assault, flreanns not to be carried without a license, and 

possessing the instrument of a crime. He was sentenced to a total period of incarceration of 15 to 

30 years in a state correctional facility. 

On November 30, 2006 Appellant flied a pro se Post Conviction Relief Act ("PCRA") 

petition seeking restoration of his appellate rights, which we granted on July 14, 2008. 

Thereafter Appellant flied a direct appeal nunc pro tunc. On August 9,2009 Appellant's appeal 

was quashed as untimely, and he was directed to file a PCRA petition to restore his direct appeal 

rights. Accordingly, on October 8, 2009, Appellant flied a second PCRA petition, which we 

granted and Appellant again appealedt6 itre Su~ri~r CJ'Jft. His judgment of sentence was 

affirmed on January 12, 2011 and theJ'jl{\1:l~y~yania\~uure,llle Court denied Appellant's Petition 

"HllIU .... .:Ill .{Il:J I;) 

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" :8 for Allowance of Appeal on August 30, 2011. On August 17, 2013, Appellant filed another pro 

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se, check-the-box motion for post conviction collateral relief. We appointed PCRA counsel, 

Osmer Deming, Esquire, to represent Appellant in the disposition of his PCRA claims. After 

exhaustively reviewing the record and finding no issues of merit, PCRA counsel filed a "No 

Merit" Letter pursuant to Commonwealth v. Finley. 550 A.2d 213 (Pa. Super. 1988) and 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). Following an independent review of the 

record, we agreed that Appellant was not entitled to post-conviction relief under the PCRA. 

Accordingly, we dismissed his PCRA petition and the present appeal followed. 

FACTUAL BACKGROUND 

Appellant was convicted of third degree murder and related charges in connection with 

the shooting death of 19-year-old Rene Castro, known by some witnesses as "Buzz" (hereinafter 

referred to as "Victim Rene Castro"), in the early morning hours of December 31, 2004. At trial, 

the Commonwealth presented multiple witnesses to the shooting, including Priscilla Rodriguez, 

Robert Cairnes, Crystal Talarico, Erica Nowotarski, Jared Hopgood, Amy Smith, and Omar 

Serrano. All of these witnesses saw the events of December 31, 2004 unfold from various 

vantage points along Perkiomen Avenue in Reading, Berks County, Pennsylvania. They each 

testified to substantially the same facts: that Appellant and Victim Rene Castro were engaged in 

a verbal argument as they walked along Perkiomen Avenue, that Victim Rene Castro walked 

onto a porch, a physical altercation ensued between the men, and Appellant ultimately shot 

Victim Rene Castro three times. None of the witnesses characterized Victim Rene Castro as the 

aggressor in the argument, and no one saw a gun in his hand prior to the shooting. Several 

Commonwealth witnesses testified that they saw Appellant shoot Victim Rene Castro, and that 

2 
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:~ eventually Victim Rene Castro produced a gun, but by that time Appellant was already running 

away . 

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,~ Commonwealth witness Priscilla Rodriguez testified that, in the very early morning hours 

I:tJ 

I~" " of December 31, 2004, the sounds of an argument in the street caught her attention. See Notes of 

Testimony, Jury Trial, April 17, 2006 to April 20, 2006, (hereinafter NT, Jury Trial, 4117106-

4120106) at 139-141. Upon looking out her window, she recognized a man she knew as "Buzz" 

(Victim Rene Castro), and saw Appellant shoving Victim Rene Castro as the two men walked on 

Perkiomen Avenue toward 17th Street. See NT, Jury Trial, 4117106-4120106, at p. 142-43. She 

further testified that Appellant ''pushed (Victim Rene Castro) in his face" and then walked away, 

crossing the street. Id at 148. After a further exchange of words and gestures, however, 

Appellant ran back across the street and followed Victim Rene Castro onto the porch. See id at 

151. She then heard the sound of punching, followed by three gun shots, fired in rapid 

succession. See id. at 152-53. She saw Appellant walk away, look back at Victim Rene Castro 

on the porch, and then run away from the scene. See id at 153. 

Similarly, Commonwealth witness Jarod Hopgood, who did not personally know the 

victim but recognized him from the neighborhood, testified that he had been on the phone with 

Priscilla Rodriguez on December 31, 2004 and recalled her telling him that she heard an 

argument in front of her house on Perkiomen Avenue. See id. at 171. Mr. Hopgood lived on the 

same block as Ms. Rodriguez, and his first floor apartment faced the street. See id at 169. He 

went out onto his porch and watched the argument unfolding on the street. See id at 171. Mr. 

Hopgood also noticed two other people in the street or on the sidewalk, but it appeared to him 

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:~ that they were not involved in the argument. See id. at 172. He testified: " 

'f"! 

'1'\" Well, I saw - I saw Rene (Victim Rene Castro). He was standing 

there. And someone was arguing with him. And the person - Rene 

wasn't saying too much. It was the other person who was yelling 

at him. 

1d at 173-74. At some point, Victim Rene Castro threw his hands up and walked away, but the 

other person (later identified as Appellant) followed him, continuing to yell. See id. at 175-76. 

Appellant turned and began walking away from Victim Rene Castro, but then there was a yell 

and Appellant ran, specifically he sprinted, back towards the porch where Victim Rene Castro 

was then standing. See id. at 179. "When he started sprinting, I went into the house. I didn'tI got a bad feeling." 1d When Mr. Hopgood got inside, one of his friends reported that the men 

had begun to fight. See id. at 180. Wanting to watch the fight, he decided to return to his front 

porch. 1d. Before he made it back outside, however, he heard gunshots. See td at 181-82. He 

saw Appellant standing in front of Victim Rene Castro with his arm extended toward Mr. Castro, 

but did not see a gun. See id. at 182-83. Mr. Hopgood retreated to his apartment a second time, 

but at some point came back outside and saw Victim Rene Castro "slumped in the vestibule" of 

the house where the shooting had taken place. Id. at 184. 

Commonwealth witness Robert Cairnes, who was Jarod Hopgood's roommate at 1621 

Perkiomen Avenue at the time of the shooting, testified that on December 31, 2004 while 

hanging out with friends at home, he heard an argument outside his apartment. NT, Jury Trial, 

4117106-4120106, p. 208. He walked over to a bay window facing Perkiomen Avenue, and 

looked out through the blinds. See id. at 209. He testified to seeing three men walking and 

arguing, coming from the direction of the A-Plus mini market towards his residence. See id at 

210. Mr. Cairnes moved to the vestibule in the front of the apartment building to watch. See id 

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·.a., .;. ,~ 

:re 

", 

.,-

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at 210-11. He recognized "Buzz" (Victim Rene Castro), and saw that he was involved in an 

argument with two other men, who were yelling. See id. at 210-11. Mr. Cairnes testified that 

the argument was loud enough to be heard from inside his apartment. See id. at 213. It appeared 

to him that Appellant was arguing with Victim Rene Castro and that the third man was "just 

tagging along", not participating in the argument. Id at 213. At some point, Mr. Cairnes saw 

Victim Rene Castro cross the street to "Omar's house" (Commonwealth witness Omar Serrano), 

directly across from the witness' house. Id. at 214. He saw Victim Rene Castro knock on the 

window of the house a few times, and then enter the building'S front vestibule. See id. at 215-16. 

Mr. Cairnes then saw Mr. Omar Serrano come out of the residence and stand with Victim Rene 

Castro. See id. at 216. Mr. Cairnes did not see anything in either man's hands prior to the fight 

that ensued, and he did not see Victim Rene Castro hit Appellant at any time. See id. at 217-18. 

He saw Victim Rene Castro reel backward after being hit by Appellant, and stated that Mr. 

Serrano was not a participant in the fight. See id. at 218-19. After Victim Rene Castro was 

knocked back by Appellant's blows, Mr. Cairnes testified that he saw Appellant reach towards 

his waist, and then he heard shots. See id at 219. "I just seen him reach for his waist. And the 

next thing you know three gunshots are fired." Id. at 220. He said the shots were fired while 

Victim Rene Castro was recovering from the blow to the head. See id. at p. 220. Mr. Carines 

then saw Appellant tum and run down the street, and noticed that the other people he had seen 

earlier were also running. See id. at 221-22. Although Mr. Cairnes did not see anything in his 

hand prior to the shooting, he testified that, after being shot, Victim Rene Castro stumbled back 

into the vestibule or hallway, and when he reappeared he had a gun in his hand. See id at 223. 

By the time Victim Rene Castro re-emerged with the weapon, Appellant was already across the 

street and running away. See id. On cross-examination, Mr. Carines reiterated that before he 

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:m. ,II: 

:8 was shot, he did not see Victim Rene Castro reach for anything. See id. at 233. 

',"" 

'Ii" Commonwealth witness Crystal Talarico testified that on the night of the shooting, she ,~'" 

I~'!r 

I~;J " had been at 1621 Perkiomen Avenue with Robert Cairnes, Erica Nowotarski, Eddie 

';'; 

'Yl 

I~ Schwarnbach, Jarod Hopgood and Phil Reifsnyder when she heard yelling "out front". NT, Jury 

Trial, 4117106-4120106, at 239-240. The entire group went to the front porch, with the exception 

of Phil Reifsnyder who was already sleeping. Id. She saw two people arguing, and also saw two 

other people who did not appear to be involved in the argument. See id. at 242. Like the other 

witnesses, Crystal Talarico did not see a gun in anyone's hand prior to the shooting, however she 

did see Appellant extend his right arm, heard three shots, and simultaneously saw "some kind of 

light go off', which she further described as "like sparks". Id. at 248. 

Commonwealth witness Erica Nowotarski testified that she, too, heard arguing on 

December 21,2004 outside the residence on Perkiomen Avenue, which prompted her to look 

outside where she saw "two guys in the street arguing." NT, Jury Trial, 4117106-4120106 at 266. 

She also noted that there were other people on the street, and observed that Victim Rene Castro 

was wearing a fur-trimmed jacket. See id. at 268. With respect to the argument, Ms. Nowotarski 

testified that it looked to her like Victim Rene Castro did not wish to argue, because, as she 

explained: "Rene was walking away from it. He didn't want anything to do with it." Id. at 269-

70. She saw Victim Rene Castro walk to a house and knock on the door, and then saw 

Appellant come up on the porch behind Victim Rene Castro and hit him in the head. See id. at 

270-71. Appellant hit Victim Rene Castro on the head as he was walking away. See id. at 276. 

She never saw Victim Rene Castro punch Appellant. See id. at 278. Ms. Notowarski then 

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I~ 

iN ,,' 

:B testified that she saw Appellant pull out his gun, hold it out towards Victim Rene Castro, and ,. 

r~·' 

"- then she heard three shots. See id at pp. 272-74. 

'<I" 

'11!' 

:~ .., Commonwealth witness Amy Smith, who lived on the sixteen hundred block of 

:~ 

!~ Perkiomen Avenue at the time of the shooting, testified that at 12:49 a.m. on December 31, 2004 

she was watching TV in her first-floor living room when she heard arguing. NT, Jury Trial, 

4117106-4120106 at 331-32. She looked outside and saw two men engaged in an argument, one of 

which was bald and the other of which was wearing a coat with fur around the hood. See id. at 

333-34. She testified that although both men were arguing, the bald one was doing "more 

yelling". 1d at 336. Ms. Smith did not see anything in either of the men's hands. Id She 

indicated that the man with the fur-trimmed hood started walking away first, and that the bald 

man followed him. See id at 337. The men then walked out of her view, and, after 

approximately ten or fifteen minutes, she heard gunshots and called 91 L See id at 337-38. 

Commonwealth witness Omar Serrano testified that on December 31, 2004 he was 

residing at 1622 Perkiomen Avenue in the City of Reading, and that in the early morning hours 

of that day he was watching television in the living room when he heard a knock at his window. 

See NT, Jury Trial, 4117106-4120106 at 359-61. He went to the window to see who it was and 

recognized the victim, Victim Rene Castro. See id at 361. Mr. Serrano opened the front door 

and saw Victim Rene Castro and another individual arguing on the front porch. See id. at 362. 

He identified that other person as Appellant. See id. at 363. Mr. Serrano testified that Appellant 

began to hit Victim Rene Castro on the head, punching him with both hands while Victim Rene 

Castro attempted to shield himself from the blows. See id at 364-66. Mr. Serrano testified that 

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he could see Victim Rene Castro's hands, and that there was nothing in them. See id. at 364-

366. Mr. Serrano testified that he intervened in the fight, and that Appellant went to the steps 

while Victim Rene Castro remained on the porch with him. See id. at 366-367. When asked 

what happened next, he stated, Appellant "pulled out a gun and shoot him". Id at 367. He 

elaborated a bit, saying that Appellant had pulled a gun from his waist, pointed it at Victim Rene 

Castro, and shot him. See id at 367-369. He also testified definitively that Victim Rene Castro 

did not have a gun in his hands at the time he was shot. See id. at 369. Mr. Serrano then ran 

inside the building to his apartment, and, after a few minutes, called 911. See id at 370. 

ISSUES RAISED ON APPEAL 

I. PCRA counsel Osmer Deming was ineffective in his representation of Appellant in 

the disposition of his PCRA Petition; 

2. Trial counsel was ineffective in his representation of Appellant for failing to object to 

the jury instructions relating to third degree murder and manslaughter; 

3. The court erred at trial by giving incorrect jury instructions with respect to third 

degree murder and manslaughter; and 

4. The court erred by failing to conduct an evidentiary hearing on Appellant's PCRA 

petition. 

DISCUSSION 

Appellant is appealing the dismissal of his PCRA petition. He first contends that his 

court-appointed PCRA counsel, Osmer Deming, Esquire, was ineffective in his representation of 

Appellant by: 

misstating the waiver standard with regard to issues raised in the 

pro se PCRA petition; refusing to have any contact, including 

responding to correspondence from petitioner, with his client; not 

filing a proper "no merit" letter where there was no indication that 

counsel's review of the record revealed no other issues that may be 

cognizable on PCRA review, his only focus being on the claims 

raised in the pro se petition; and, counsel misled the court as to the 

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[t]he trial court committed plain error, structural in nature, when it 

instructed the jury such that the Commonwealth was permitted to 

obtain a third degree murder conviction by proving the elements of 

unreasonable belief self-defense, which is clearly and statutorily 

only voluntarily manslaughter. 

The jury instructions are reproduced in their entirety as part of the Notes of Testimony. 

See NT, Jury Trial, 4117106-4120106, pp. 603-652. In our Notice ofIntent to Dismiss, we 

summarized the pertinent portions of the jury instructions at issue. This court instructed the jury 

as follows with respect to malice, third degree murder, and voluntary manslaughter: 

Now, before defining each of these crimes I will tell you about 

malice which is an element of murder but is not an element of 

manslaughter. That's what differentiates murder from 

manslaughter, the concept of malice. 

A person who kills must act with malice to be guilty of any degree 

of murder whether first or third degree murder. The word malice 

as I am using it has a special legal meaning. It doesn't mean 

simply hatred, spite, or ill will. Malice is a shorthand way of 

referring to any three different mental states that the law regards as 

being bad enough to make a killing a murder. 

The type of malice differs for each degree of murder. Thus, for 

murder of the first degree a killing is with malice if the perpretrator 

acts with, first, an intent to kill or as we'll explain later, the 

definition - or as I will explain later in my definition of first degree 

murder, the killing is willful, deliberate, and premeditated. 

Now for murder of the third degree a killing is with malice if the 

perpetrator's actions show his wanted (sic) and willful disregard of 

an unjustified and extremely high risk that his conduct would result 

in death or serious bodily injury. In this form of malice the 

Commonwealth need not prove that the perpetrator specifically 

intended to kill the other person. 

The Commonwealth must prove, however, that he took action 

while consciously; that is, knowingly disregarding the most serious 

risk he was creating and that by his disregard of that risk he 

demonstrated his own extreme indifference to the value of human 

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life. 

Now, a killing is likewise without malice if the perpetrator acts 

with lawful justification or excuse. Lawful justification or excuse 

not only negates malice but also is a complete defense to any 

charge of criminal homicide whether it's murder or manslaughter. 

I shall say more about this when I charge you on the defense of 

self-defense. 

So again, as a way of introduction the difference between murder 

and manslaughter is the necessary element of malice. In order to 

find the defendant guilty of either first degree murder or third 

degree murder, you must be satisfied beyond a reasonable doubt 

that the Commonwealth - that the Commonwealth has proved 

malice. Malice is not an element of manslaughter. 

NT, Jury Trial, 4117106-4120106, at 607-609. We then went on to charge the jury with respect to 

third degree murder and manslaughter: 

Third degree murder is any killing with malice that is not first 

degree murder. The defendant has been charged with third degree 

murder. And to fmd the defendant guilty of this offense you must 

find that the following three elements have been proven beyond a 

reasonable doubt: First that Rene Castro, II, is dead; second, that 

the defendant killed him; and third, that the defendant did so with 

malice. 

Again, the word malice has special meaning. It does not mean 

simply hatred, spite, or ill will. Malice is a shorthand way of 

referring to a particular mental state that the law regards as being 

bad enough to make a killing a murder rather than reducing it to 

manslaughter ... 

On the other hand, a killing is without malice if the perpetrator acts 

with lawful justification or excuse such as self defense or under 

circumstance, other circumstances that reduce the killing to 

voluntary manslaughter. And, again, I will explain those other 

circumstances that reduce a killing to manslaughter when I give 

you the definition of manslaughter. ... 

When deciding whether the defendant acted with malice you 

should consider all of the evidence including his words, conduct, 

and the attending circumstances that show his state of mind. If you 

believe that the defendant intentionally used a deadly weapon on a 

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vital part of the victim's body you may regard that as an item of 

circumstantial evidence from which you may choose to (sic) that 

that defendant acted with malice. 

So, again, you may find the defendant guilty of third degree 

murder if you are satisfied beyond a reasonable doubt that Rene 

Castro, II, is dead; second, that the defendant killed him; and, third, 

that the defendant did so with malice. 

If you are not satisfied that all three elements have been proven 

beyond a reasonable doubt you must find the defendant not guilty 

of third degree murder. 

Now, let me turn to voluntary manslaughter. As my earlier 

definition of malice indicates, there can be no malice when certain 

reducing circumstances are present. When these circumstances are 

present, a killing may only be voluntary manslaughter but not 

murder. This is true, for example, when a defendant kills in the 

heat of passion following serious provocation or when the 

defendant kills a person under the unreasonable mistaken belief in 

justifYing circumstances; in other words, that a defendant killed a 

person under an unreasonable mistaken belief that he had the right 

to use self-defense. 

Accordingly, you can fmd malice and murder - - accordingly you 

can find malice and find the defendant guilty of murder only if you 

are satisfied beyond a reasonable doubt that the defendant was not 

acting under a sudden and intense passion resulting from serious 

provocation by the victim or that he was acting under an 

unreasonable belief that the circumstances were such that if they 

existed would have justified the killing. 

NT, Jury Trial, 4/17/06-4/20/06, at 611-614 (emphasis added). As set forth in our Notice of 

Intent to Dismiss, contrary to Appellant's assertions, we did not instruct the jury that they could 

find Appellant guilty of third degree murder where the evidence showed that Appellant held an 

unreasonable belief that self-defense was justified. The jury instructions address unreasonable 

self-defense, and clearly state that, where there is a belief that self defense is justified, even 

where that belief is unreasonable, this would negate a finding of malice necessary to support a 

conviction for murder of any degree. 

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Because the jury instructions given at trial accurately distinguished between third degree 

murder and voluntary manslaughter, we found that Appellant had failed to raise a cognizable 

claim with respect to the jury instructions. Further, the evidence presented by the 

Commonwealth clearly supported Appellant's conviction for third degree murder, as previously 

affirmed by the Superior Court. 1 

With respect to Appellant's related claim, that trial counsel was ineffective for failing to 

object to the jury instructions pertaining to third degree murder discussed above, we submit that 

trial counsel could not be ineffective for failing to object to something that was not 

objectionable. 

When asserting ineffective assistance of counsel, (Petitioner) must 

demonstrate that (1) the underlying claim is of arguable merit; (2) 

the particular course chosen by counsel did not have any 

reasonable basis designed to effectuate his client's interests; and 

(3) counsel's ineffectiveness prejudiced (Petitioner). 

Commonwealth v. Cook, 544 Pa. 361, 367, 676 A.2d 639,647 (1996). This is a restatement of 

the well-established three-prong test set forth in Pierce, in which the Pennsylvania Supreme 

Court adopted the Strickland standard. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 

1987), adopting Strickland v. Washington, 466 U.S. 668, 687 (1984). As discussed in the 

preceding section, failure to establish any ofthe three prongs necessarily results in the dismissal 

of the claim. Commonwealth v. Basemore, 744 A.2d 717 (Pa. 1999). 

1 Superior Court Docket Number 1904 MDA 2009. 

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'l"" 

!~.' 

We dismissed Appellant's PCRA claims relating to the jury instructions because they 

were without any arguable merit. The instructions given were proper, and, therefore, trial 

counsel could not have been ineffective for failing to object to them. Because the claim for 

ineffectiveness is without arguable merit, we did not address the second two prongs of the test in 

our Notice of Intent to Dismiss. Because Appellant failed to show how trial counsel was 

ineffective for failing to object to the jury instructions, it follows that this court did not err in 

dismissing Appellant's PCRA petition on those grounds. 

Lastly, Appellant contends that this court erred in failing to conduct an evidentiary 

hearing on the merits of his PCRA Petition. Pursuant to the Pennsylvania Rules of Criminal 

Procedure, if, after reviewing the petition and the record, the court determines that there are no 

"genuine issues of material fact and that the defendant is not entitled to post-conviction collateral 

relief' then no hearing is required. Pa.R.C.P.907. There is no absolute right to a hearing under 

the PCRA. See Commonwealth v. Granberry, 644 A.2d 204 (pa. SuperJ994). We reviewed the 

entire record and considered Appellant's claims under the PCRA, and determined his claims 

were frivolous and did not entitle him to a hearing. 

CONCLUSION 

Appellant appealed the dismissal of his PCRA Petition. Because we believe the dismissal 

of his PCRA Petition was proper, we respectfully request that his appeal be DENIED. 

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!OI 

I~~ 

.. 

-,. 

if"'! 

merits ofthe issues raised in the pro se petition. 

With respect to PCRA counsel Deming's representation of Appellant, it is well 

established that under Pennsylvania jurisprudence counsel is presumed effective, and Appellant 

bears the burden of proving otherwise. See Commonwealth v. Hall, 701 A.2d 190,200-01 (Pa. 

1997). The test for ineffectiveness consists of three prongs: (1) the claim is of arguable merit; 

(2) counsel had no reasonable basis for his or her actions or inactions, and (3) actual prejudice 

resulted, in that the outcome of the proceedings would have been different but for the actions or 

inactions of counsel. See Commonwealth v. McGill, 832 A.2d 1014,1020 (Pa. 2003) and 

Commonwealth v. Pierce, 786 A.2d 203, 213 (pa. 1987), adopting Strickland v. Washington, 

466 U.S. 668, 687 (1984). Failure to establish any of the three prongs necessarily results in the 

dismissal of the claim. Commonwealth v. Basemore, 744 A.2d 717 (Pa. 1999). To establish the 

prong of prejudice, Defendant must demonstrate that "but for the act or omission in question, the 

outcome of the proceedings would have been different". Commonwealth v. Rios, 920 A.2d 790, 

799 (Pa. 2007). Appellant has not shown any of the three prongs, but specifically has not 

demonstrated prejudice, because he has not established that, but for PCRA Counsel's acts or 

omissions, thy outcome would have been different. This court independently reviewed the 

record, and concurred with PCRA counsel that there were no issues of merit. PCRA counsel 

followed the edicts of the PCRA and the accompanying decisional law in filing his "No Merit" 

Letter, and Appellant has not demonstrated how his PCRA attorney was ineffective. 

Appellant next contends that his trial counsel was ineffective for failing to object to the 

jury instructions on third degree murder, and he also argues that the court erred in giving said 

instructions. According to Appellant: 

9