J-A25042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

LUIS BERNAL 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 258 MDA 2020

Appeal from the PCRA Order Entered January 21, 2020

In the Court of Common Pleas of Huntingdon County

Criminal Division at No(s): CP-31-CR-0000615-2014

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: JANUARY 21, 2021

Appellant, Luis Bernal, appeals from the order entered in the Huntingdon 

County Court of Common Pleas, which denied his first petition filed under the 

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

This Court has previously summarized the factual history and some of 

the procedural history of this case as follows:

The charges in this matter arose after an eighteen-month 

investigation conducted by various law enforcement 

agencies in Huntingdon County. The investigation was 

initiated when Huntingdon Borough Police received 

complaints that [Appellant] and his girlfriend, Jacquita 

Kiernan, had moved to the area in November 2012 from 

New York City and were bringing large quantities of heroin 

into the area for distribution. Agent Mark Sinisi of the Office 

of Attorney General was the lead investigator. Agent Sinisi, 

with the assistance of confidential informants, made 

numerous controlled buys from [Appellant’s] distributors. 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
J-A25042-20

- 2 -

Ultimately, [Appellant] was arrested on April 28, 2014. He 

made two statements to the police. The first, in the hours 

immediately following his arrest, was brief, lasting only 

forty-five minutes. The second statement, during which he 

was represented by counsel, occurred on May 22, 2014, and 

lasted approximately three hours. The trial court 

summarized that interview as follows:

[Appellant] told Agent Sinisi that he and Kiernan

moved to Huntingdon County from New York City in

November, 2012. Ms. Kiernan had family in the area, 

and the couple stayed with them until moving to the 

Comfort Inn in Huntingdon. Subsequently they rented 

a cabin on Snyder’s Run Road[.]

Almost immediately, [Appellant] began distributing 

heroin. He told Agent Sinisi that initially Kiernan’s

cousin was selling two (2) bundles of heroin for him 

every two (2) to three (3) days. A bundle is ten (10) 

stamp size bags containing from .01 to .04 grams of 

heroin. [Appellant] charged the cousin $125 per 

bundle. The cost to [Appellant] at that time, he said, 

was $70 per bundle.

[Appellant] told Agent Sinisi that he obtained the 

heroin he sold in New York. Over the course of the 

eighteen (18) months that he was in business, 

[Appellant] related that he had several different 

suppliers in New York. At the beginning he said he 

was obtaining thirty (30) bundles every two (2) 

weeks. In January, 2013, and continuing for seven 

(7) or eight (8) months, a new New York supplier 

increased his volume to fifty (50) bundles every two 

(2) weeks. This source, [Appellant] said, was only 

charging him $60 a bundle. In Huntingdon at that 

time a bundle sold for as much as $300. [Appellant]

related that his volume gradually increased, and that 

he obtained as much as ninety (90) bundles every two 

(2) weeks, and that on his birthday, July 5, 2013, he 

was able to purchase one hundred (100) bundles. In 

the months preceding his arrest, [Appellant] told 

Agent Sinisi that he began purchasing raw heroin 

which he would then cut and package in green, stamp 

size bags.
J-A25042-20

- 3 -

[* * *]

During the course of the second interview, [Appellant] 

gave Agent Sinisi two (2) estimates of the gross 

income from his heroin operation. First, he opined 

that he was taking in $3,000 every two (2) weeks. 

Later, he said he was grossing $5,000 every two (2) 

weeks. Agent Sinisi conservatively estimated that 

over the course of eighteen (18) months [Appellant] 

grossed $180,000.

Trial Court Opinion, 6/28/16, at 4-7.

After a jury trial, [Appellant] was found guilty of [three 

counts of possession of a controlled substance with the 

intent to deliver (“PWID”), two counts of corrupt 

organizations, and one count each of conspiracy, criminal 

use of a communication facility, and dealing in proceeds of 

unlawful activities] on September 11, 2015. On January 5, 

2016, the court sentenced him to an aggregate term of 16 

to 32 years’ imprisonment. The trial court denied 

[Appellant’s] post-sentence motions. On July 12, 2016, 

[Appellant] filed a timely notice of appeal, followed by a 

court-ordered statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b).

Commonwealth v. Bernal, No. 1129 MDA 2016, unpublished memorandum 

at 2-4 (Pa.Super. filed Feb. 27, 2017) (internal footnote omitted). This Court 

affirmed the judgment of sentence on February 27, 2017. See id. Appellant 

did not seek further direct review. 

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

Appellant filed a counseled, amended PCRA petition on May 31, 2018. In his 

petitions, Appellant raised various claims of trial and appellate counsels’

ineffectiveness. The court held a PCRA hearing on April 18, 2019, at which 

trial counsel testified. On January 21, 2020, the court denied PCRA relief. 
J-A25042-20

- 4 -

Appellant timely filed a notice of appeal on February 12, 2020. On February 

18, 2020, the court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant 

timely filed on March 11, 2020.

Appellant raises seven issues for our review:

Trial counsel failed to interview or call Alexis Swanger as a 

witness given that she was a confidential informant and 

would provide testimony that police falsified her statements.

Trial counsel was ineffective when he failed to request a 

mistrial when the co-defendant Jacquita Kiernan was 

removed from the case/courtroom after her plea of guilty 

despite the fact that the jury saw her present during jury 

selection.

Trial counsel was ineffective when he failed to request that 

the court give a proper curative instruction to the jury after 

Kiernan’s guilty plea and trial counsel was ineffective when 

he failed to request that the court voir dire the jury 

regarding Kiernan’s guilty plea.

Trial counsel was ineffective when he failed to object on 

multiple occasions to hearsay testimony.

Trial counsel [was] ineffective for not requesting jury 

instruction 4.06—certain testimony subject to special 

scrutiny as to Beth Harms, Aaron Dimoff, and David Steel 

as well as not requesting jury instruction 4.01—Accomplice 

Testimony as to Beth Harms, Aaron Dimoff, and David Steel.

Trial counsel was ineffective for not cross-examining Aaron 

Dimoff on [his] arrest in this instant case as it relates to his 

bias in providing testimony to the prosecution.

Appellate counsel was ineffective for failing to properly 

challenge the discretionary aspects of Appellant’s sentence 

by not complying with Pa.R.A.P. [2119(f)].

(Appellant’s Brief at 6). 
J-A25042-20

- 5 -

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 do not give the same deference, however, to the court’s legal 

conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). “A 

PCRA court passes on witness credibility at PCRA hearings, and its credibility 

determinations should be provided great deference by reviewing courts.” 

Commonwealth v. Johnson, 600 Pa. 329, 356, 966 A.2d 523, 539 (2009).

In his first issue, Appellant argues trial counsel was ineffective in failing 

to investigate and/or call as a witness Alexis Swanger. Appellant asserts 

Alexis Swanger was a confidential informant used in drug investigations 

conducted by Agent Sinisi. Appellant maintains that Ms. Swanger wrote a 

letter to Appellant’s mother dated March 20, 2016, indicating that Agent Sinisi 

sometimes told her to include things that were untrue in her informant 

statements. Appellant insists part of his defense theory at trial was that the 

Commonwealth exaggerated his role in the crimes charged. Appellant 

emphasizes that he presented Attorney Christopher Wencker as a witness at 

trial, who had represented Appellant during one of the police interviews. 
J-A25042-20

- 6 -

Attorney Wencker testified that police tried to pressure Appellant to 

“cooperate” by admitting things Appellant did not believe were necessarily 

true. Appellant contends trial counsel was ineffective for failing to investigate 

and/or present Ms. Swanger as a witness because her testimony would have 

corroborated the testimony of Attorney Wencker and supported Appellant’s 

position that “law enforcement already had a theory and narrative of the case 

and anything that did not match their conclusions [was] dismissed as [a] 

falsehood[.]” (Appellant’s Brief at 11). Appellant concludes the PCRA court 

improperly denied Appellant’s ineffectiveness claim, and this Court must grant 

appropriate relief. We disagree.

Pennsylvania 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: (1) the underlying claim has 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 
J-A25042-20

- 7 -

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot 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). 

For claims of ineffectiveness based upon counsel’s failure to call a 

witness: 

A defense attorney’s failure to call certain witnesses does 

not constitute per se ineffectiveness. In establishing 

whether defense counsel was ineffective for failing to call 

witnesses, a defendant must prove the witnesses existed, 

the witnesses were ready and willing to testify, and the 

absence of the witnesses’ testimony prejudiced petitioner 

and denied him a fair trial. 

Commonwealth v. Cox, 603 Pa. 223, 267-68, 983 A.2d 666, 693 (2009) 
J-A25042-20

- 8 -

(internal citations omitted). A petitioner “must show how the uncalled 

witnesses’ testimony would have been beneficial under the circumstances of 

the case.” Commonwealth v. Gibson, 597 Pa. 402, 441, 951 A.2d 1110, 

1134 (2008). 

Regarding counsel’s preparation for trial: 

Counsel has a general duty to undertake reasonable 

investigations or make reasonable decisions that render 

particular investigations unnecessary. Counsel’s 

unreasonable failure to prepare for trial is an abdication of 

the minimum performance required of defense counsel. The 

duty to investigate, of course, may include a duty to 

interview certain potential witnesses; and a prejudicial 

failure to fulfill this duty, unless pursuant to a reasonable 

strategic decision, may lead to a finding of ineffective 

assistance. 

Johnson, supra at 350-51, 966 A.2d at 535-36 (internal citations and 

quotation marks omitted). 

Instantly, Appellant did not present Ms. Swanger as a witness at the 

PCRA hearing. Rather, Appellant relied on a letter purportedly authored by 

Ms. Swanger, which Appellant attached to his PCRA petition as Exhibit B. As 

the PCRA court explained: “In the letter the writer said that she had been a 

confidential informant for Agent Sinisi and that he had her put false 

information into her written informant reports. The writer did not indicate she 

had been an informant in this case.” (Rule 1925(a) Opinion, filed April 6, 

2020, at 4). 

Trial counsel testified at the PCRA hearing that Ms. Swanger’s letter 

related to police misconduct in controlled buys she was involved in, unrelated 
J-A25042-20

- 9 -

to Appellant’s case. Counsel testified that he would not have called Ms. 

Swanger as a witness at trial because she had nothing specific to offer related 

to Appellant’s case. (See N.T. PCRA Hearing, 4/18/19, at 18). Under these 

circumstances, Appellant has failed to demonstrate how the proffered 

unauthenticated letter satisfied his burden to prove Ms. Swanger was ready 

and willing to testify on Appellant’s behalf, and that the absence of such

testimony prejudiced Appellant and denied him a fair trial. See Cox, supra. 

Moreover, trial counsel’s testimony makes clear he had a reasonable basis for 

declining to call Ms. Swanger as a witness. See Pierce, supra. For these 

reasons, Appellant’s first claim of trial counsel’s ineffectiveness fails.

For purposes of disposition, we combine Appellant’s second and third 

issues as they are related. In his second issue, Appellant argues his codefendant, Ms. Kiernan, initially proceeded to a joint trial with Appellant. 

Appellant asserts that shortly after jury selection, but before trial began, Ms. 

Kiernan pled guilty. Consequently, Appellant proceeded to trial alone. 

Appellant acknowledges that the court instructed the jury not to concern itself 

with Ms. Kiernan’s absence. Nevertheless, Appellant claims there is “good 

reason to suspect that the jury would have concluded that the sudden absence 

of his co-defendant and paramour was the result of a guilty plea.” (Appellant’s 

Brief at 14). Appellant emphasizes that on the first day of trial, a local 

newspaper published an article showing pictures of Appellant and Ms. Kiernan 

side-by-side and indicating that Ms. Kiernan had entered a guilty plea in this 
J-A25042-20

- 10 -

matter while Appellant elected to go to trial. Appellant contends it is “not a 

far stretch” to reach the conclusion that the jury discovered Ms. Kiernan had 

pled guilty. 

Appellant insists trial counsel should have requested a mistrial after Ms. 

Kiernan entered her guilty plea so that Appellant could have selected another 

jury. Appellant avers counsel had no reasonable basis for failing to request a 

mistrial where it would not have significantly delayed the proceedings because 

all that was required was a new jury panel. Appellant emphasizes he was 

prejudiced by counsel’s error because he had to share his peremptory 

challenges with Ms. Kiernan. Appellant proclaims that Ms. Kiernan’s entry of 

a guilty plea destroyed Appellant’s presumption of innocence. 

Relatedly, in his third issue, Appellant argues trial counsel should have 

asked the court to issue a more appropriate cautionary instruction rather than 

the court’s general instruction for the jury not to concern itself with Ms. 

Kiernan’s absence from trial. Appellant further asserts counsel should have 

asked the court to voir dire the jury after Ms. Kiernan’s guilty plea to uncover 

whether any jurors were aware of her plea. Appellant submits that “it is very 

reasonable that the jury was aware of [Ms. Kiernan’s] guilty plea and that 

influenced their decision.” (Id. at 19). For these reasons, Appellant concludes 

trial counsel was ineffective and this Court must grant appropriate relief. We 

disagree.

Initially, we note that Appellant cites only general law concerning when 
J-A25042-20

- 11 -

the remedy of a mistrial is appropriate, and he provides no legal authority to 

support his claim that a mistrial is appropriate where one co-defendant pleads 

guilty after jury selection in the case. On this basis, we could deem Appellant’s 

second issue waived. See Commonwealth v. Miller, 212 A.3d 1114 

(Pa.Super. 2019), appeal denied, ___ Pa. ___, 221 A.3d 643 (2019) 

(explaining general principle that this Court can deem issue waived on appeal 

where appellant fails to properly develop issue or cite legal authority to 

support contention in his appellate brief).

In support of his third issue, Appellant relies on Commonwealth v. 

Brado, 470 Pa. 306, 368 A.2d 643 (1977) and Commonwealth v. 

Kirkpatrick, 386 A.2d 602 (Pa.Super. 1978). In Brado, the defendant was 

charged with murder, voluntary manslaughter, and related offenses, in 

connection with his shooting of victim, which occurred while the defendant 

was under the influence of alcohol and controlled substances. On the morning 

of the defendant’s jury selection, a local newspaper published an editorial 

entitled “Drunkenness As a Defense,” which criticized a then-recent Supreme 

Court decision and stated that, as a result of that judicial decision, “by claiming 

drunkenness one may be able to escape punishment for premeditated murder, 

robbery, burglary and rape.” Brado, supra at 309, 368 A.2d at 644. 

When confronted with the newspaper article, trial counsel moved for a 

continuance, which the court denied. The court conducted voir dire of the 

jurors to see if any jurors had read the article and several admitted having 
J-A25042-20

- 12 -

done so, but those jurors said they could still decide the defendant’s guilt or 

innocence based on the evidence presented at trial. Id. at 310, 368 A.2d at 

644. The defendant raised a due process violation on appeal, and our 

Supreme Court reversed his manslaughter conviction and remanded for a new 

trial. In so doing, the Court stated: “The probability that the jurors would be 

affected by the article and direct their anger against the defendant, who 

presented that very defense the day the [article was] published, was so high 

that the article must be deemed inherently prejudicial to the defendant[.]” 

Id. at 311, 368 A.2d at 645.

In Kirkpatrick, supra, the appellant challenged the trial court’s refusal 

to voir dire the jury after a radio broadcast on the day trial was set to begin 

revealed that the appellant’s co-defendant had pled guilty in the case. 

Although trial counsel asked the court for a continuance and to voir dire the 

jurors to determine if any had heard the broadcast, the court denied both 

requests. Relying on Brado, this Court concluded that the trial court’s refusal 

to voir dire the jurors amounted to an abuse of discretion. Consequently, this 

Court remanded for a new trial.

Instantly, on direct appeal, Appellant claimed, inter alia, (1) the trial 

court committed an error of law in concluding the jury pool was not tainted by 

allowing Ms. Kiernan to plead guilty without providing a cautionary instruction 

to the jury or by selecting a new jury; and (2) the trial court erred by 

concluding that trial counsel was required to request a specific cautionary 
J-A25042-20

- 13 -

instruction. See Bernal, supra at 4. In analyzing these claims, this Court 

stated:

[Appellant’s] first two claims involve the trial court’s failure 

to give the jury a cautionary instruction regarding his codefendant’s guilty plea. When jury selection began, 

[Appellant] and Kiernan were slated to be tried together as 

co-defendants, and prospective jurors were informed of this 

fact. However, after the jury was empaneled, but before 

the commencement of trial, Kiernan entered a guilty plea. 

Thus, when the jury returned for trial, [Appellant] was the 

sole remaining defendant. [Appellant] asserts that 

Kiernan’s absence caused the jury to improperly infer that 

“if she pled guilty to some offenses, ... [Appellant] must 

have also committed the same offenses.” Brief of Appellant, 

at 9. We conclude that this claim is both waived and 

meritless.

* * *

Here, the following exchange took place just prior to the 

swearing of the jury panel as trial commenced:

THE COURT: And the other thing is, of course, you’ll 

notice we have only one Defendant and you should 

not concern yourself about that. I might say to you 

your work has been made lighter. You’re trying only 

one case, not two.

Any reason why this jury should not be sworn?

[COUNSEL FOR THE COMMONWEALTH]: No, Your 

Honor.

THE COURT: [Defense counsel]?

[COUNSEL FOR APPELLANT]: None, Your Honor.

(Jury panel was sworn.)

N.T. Trial, 9/8/15, at 7.

[Appellant’s] counsel made no request either to dismiss the 
J-A25042-20

- 14 -

jury or for a further cautionary instruction. Although he 

asserts that counsel was not required to request a 

cautionary instruction and that the trial court was obliged to 

issue such a charge sua sponte, [Appellant] overlooks our 

Supreme Court’s decision in Commonwealth v. Boyer, 

891 A.2d 1265 (Pa. 2005), in which the Court found an 

identical claim waived for failure to preserve it with a 

request for a cautionary instruction. Accordingly, 

[Appellant’s] claim is waived.

Even if it were not waived, [Appellant’s] claim would garner 

him no relief. [Appellant] has failed to demonstrate 

that he was prejudiced by the trial court’s actions. 

First, the jury was completely unaware that Kiernan 

was absent because she had entered a guilty plea, 

and she was not called as a witness by either party. 

Second, the trial court did, in fact, instruct the jury 

not to concern itself with the reasons for Kiernan’s 

absence. See N.T. Trial, 9/8/15, at 7. Accordingly, 

[Appellant] is not entitled to relief.

Bernal, supra at 4-7 (emphasis added). 

Additionally, at the PCRA hearing, trial counsel explained that the trial 

court expressly informed the jurors not to look at any media coverage. Trial 

counsel stated: “I don’t have any evidence that they did[;] I know they were 

instructed not to, so I have to assume they followed those instructions[.]” 

(N.T. PCRA Hearing at 29-30).

Unlike the facts at issue in Brado and Kirkpatrick, the record in this 

case makes clear that the court (1) told the jury prior to publication of the 

newspaper article at issue not to view any media coverage concerning this 

case; and (2) informed the jury not to concern itself with Ms. Kiernan’s 
J-A25042-20

- 15 -

absence from trial.2 Under these circumstances, and for the reasons stated 

in this Court’s decision on direct appeal, Appellant is not entitled to relief on 

his second and third issues on appeal. See Kimball, supra.

In his fourth issue, Appellant argues trial counsel failed to object to 

multiple instances of hearsay. Specifically, Appellant challenges: (a) Agent 

Sinisi’s testimony that Officer Ammerman stated that he received an 

anonymous complaint that Appellant moved into Huntingdon County in 2012 

and was moving large quantities of heroin from New York City; (b) Agent 

Sinisi’s testimony that police had intelligence that Nolan Mill’s heroin source 

was Appellant; (c) Agent Sinisi’s testimony regarding what a confidential 

informant had told him about his purchase of narcotics, where the informant 

purchased two bags of heroin from Nolan Mills and handed him $50.00 in 

exchange; (d) Agent Sinisi’s testimony regarding what occurred in a controlled 

buy in which Agent Sinisi was not a participant but learned about after-thefact; (e) Agent Sinisi’s testimony that David Steel would get his heroin from 

Beth Harms, and Mr. Steel knew that Appellant was Beth Harm’s heroin 

source; and (f) the introduction of phone calls where Agent Sinisi explained to 

the jury “coded language” without the defense first laying a proper foundation 

regarding Agent Sinisi’s qualifications to testify about phone calls that were 

____________________________________________

2 Brado and Kirkpatrick also were not decided in the context of a claim of 

trial counsel’s ineffectiveness, so the relevant three-prong ineffectiveness test 

was not at issue in those cases.
J-A25042-20

- 16 -

“intercepted” or “consensualized and/or intercepted.” 

Appellant complains trial counsel was ineffective for failing to object in 

each of these instances based on hearsay. Appellant further contends 

admission of such testimony violated his rights under the Confrontation 

Clause. Appellant insists trial counsel had no reasonable basis for failing to 

lodge appropriate objections, or to request a cautionary jury instruction that 

there was a limited purpose for admission of the hearsay testimony (i.e., to 

show its effect on the listener). Appellant maintains counsel’s errors 

prejudiced Appellant because the above-listed testimony made him look like 

a bigger drug dealer than he was. Appellant complains the agent’s testimony 

also implied that Appellant was involved in narcotics transactions which could 

not have been proven otherwise because Appellant maintained he was not in 

Huntingdon County during the relevant timeframe. Appellant concludes trial 

counsel was ineffective, and this Court must grant him appropriate relief. We 

disagree.

Preliminarily:

[W]e observe generally that issues not raised in a Rule 

1925(b) statement will be deemed waived for review. An 

appellant’s concise statement must properly specify the 

error to be addressed on appeal. In other words, the Rule 

1925(b) statement must be specific enough for the trial 

court to identify and address the issue an appellant wishes 

to raise on appeal. A concise statement which is too vague 

to allow the court to identify the issues raised on appeal is 

the functional equivalent of no concise statement at all. The 

court’s review and legal analysis can be fatally impaired 

when the court has to guess at the issues raised. Thus, if a 

concise statement is too vague, the court may find waiver. 
J-A25042-20

- 17 -

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011), appeal 

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (internal citations and quotation 

marks omitted). 

Instantly, in his Rule 1925(b) statement raising this issue, Appellant 

claimed only that trial counsel was ineffective for failing to object to multiple 

occasions of hearsay testimony. Appellant did not specify in his Rule 1925(b) 

statement any of the precise claims of error he advances on appeal. 

Additionally, Appellant did not mention any violation of the Confrontation 

Clause in his Rule 1925(b) statement. Although Appellant stated in the 

introduction of the Rule 1925(b) statement that he intended to raise on appeal 

the same issues presented in his PCRA petition, this Court does not condone 

the incorporation by reference of other documents in a Rule 1925(b) 

statement. See Commonwealth v. Dodge, 859 A.2d 771, 774 (Pa.Super. 

2004), vacated on other grounds, 594 Pa. 345, 935 A.2d 1290 (2007).

3

 See 

also Commonwealth v. Smith, 955 A.2d 391, 393 n.5 (Pa.Super. 2008) 

(stating: “We do not condone the Commonwealth’s incorporation by reference 

____________________________________________

3

In Dodge, this Court declined to find waiver of the sentencing issues raised 

in the Rule 1925(b) statement because the arguments raised were largely the 

same as those raised in the appellant’s post-sentence motions, and the trial 

court understood the issues raised with regard to his sentence and referred 

this Court to portions of the record in which the court addressed the 

appellant’s arguments. See id. Thus, the deficient Rule 1925(b) statement 

did not hamper our review of the sentencing issues. Id.
J-A25042-20

- 18 -

of its motion for reconsideration. A Rule 1925(b) statement should include a 

concise statement of each issue to be raised on appeal”). 

Further, at the PCRA hearing, Appellant questioned trial counsel only 

generally about why trial counsel did not object to the instances of hearsay 

set forth in the amended PCRA petition.4 Appellant did not ask trial counsel 

specific questions concerning each instance of hearsay Appellant raised in the 

amended PCRA petition and sets forth on appeal. Trial counsel testified that 

he had objected to leading statements and hearsay a number of times, and 

explained that Agent Sinisi, as the investigating officer in the case, would have 

been afforded some leeway in discussing the background of the case and how 

the investigation progressed. (See PCRA Hearing at 19-20). Although trial 

counsel conceded that he could have objected more often, he stated: “I don’t 

think [the objections] would have been significant” or “critical...to the overall 

picture of things.” (Id. at 26). 

In rejecting this ineffectiveness claim, the PCRA court stated: “The 

difficulty with the claim is that it is not fact specific, a failure that makes 

impossible an analysis of whether the admission of the alleged hearsay 

evidence was prejudicial.” (Opinion in Support of Order Denying Relief, filed 

January 21, 2020, at 8). Based on Appellant’s vague Rule 1925(b) statement, 

the general questions posed to trial counsel at the PCRA hearing, and the 

____________________________________________

4 The amended PCRA petition preserves the claims of error raised on appeal.
J-A25042-20

- 19 -

PCRA court’s inability to analyze Appellant’s discrete claims of error, we deem 

Appellant’s fourth issue on appeal waived. See Hansley, supra.

In his fifth issue, Appellant argues trial counsel failed to request 

standard jury instruction 4.06 (certain testimony subject to special scrutiny) 

related to how the jury should evaluate testimony from Beth Harms, Aaron 

Dimoff, and David Steel. Appellant claims trial counsel also failed to request 

standard jury instruction 4.01 (corrupt and polluted source instruction 

regarding accomplices) as it relates to those same witnesses. Appellant 

asserts these witnesses were arrested and charged with Appellant, and they 

admitted selling narcotics with Appellant and at his direction. Appellant 

maintains trial counsel had no reasonable basis for failing to request these 

jury instructions, and that he suffered prejudice as a result. Appellant 

concludes counsel was ineffective and this Court must grant appropriate relief. 

We disagree.

When reviewing a challenge to a jury instruction: 

[W]e must review the jury charge as a whole to determine

if it is fair and complete. A trial court has wide discretion in 

phrasing its jury instructions, and can choose its own words

as long as the law is clearly, adequately, and accurately

presented to the jury for its consideration. The trial court

commits an abuse of discretion only when there is an 

inaccurate statement of the law.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 2008), appeal 

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

A jury charge will be deemed erroneous only if the charge 

as a whole is inadequate, not clear or has a tendency to 
J-A25042-20

- 20 -

mislead or confuse, rather than clarify, a material issue. 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. Additionally, “[t]he Suggested Standard Jury Instructions themselves are 

not binding and do not alter the discretion afforded trial courts in crafting jury 

instructions; rather, as their title suggests, the instructions are guides only.” 

Commonwealth v. Eichinger, 631 Pa. 138, 178, 108 A.3d 821, 845 (2014). 

Pennsylvania Suggested Standard Criminal Jury Instruction 4.01 

provides as follows:

4.01 ACCOMPLICE TESTIMONY

* * *

3. These are the special rules that apply to accomplice 

testimony:

First, you should view the testimony of an accomplice with 

disfavor because it comes from a corrupt and polluted 

source.

Second, you should examine the testimony of an accomplice 

closely and accept it only with care and caution.

Third, you should consider whether the testimony of an 

accomplice is supported, in whole or in part, by other 

evidence. Accomplice testimony is more dependable if 

supported by independent evidence. However, even if there 

is no independent supporting evidence, you may still find 

the defendant guilty solely on the basis of an accomplice’s 

testimony if, after using the special rules I just told you 

about, you are satisfied beyond a reasonable doubt that the 

accomplice testified truthfully and the defendant is guilty.

Pa.SSJI (Crim) § 4.01. 
J-A25042-20

- 21 -

Pennsylvania Suggested Standard Criminal Jury Instruction 4.06 

provides as follows:

4.06 CERTAIN TESTIMONY SUBJECT TO SPECIAL 

SCRUTINY

You should examine closely and carefully and receive with 

caution the testimony of [name of witness] if you find that 

he or she...[give specific situation].

Pa.SSJI (Crim) § 4.06. “This instruction may be appropriate when the court 

wishes to caution the jury about testimony that falls into a category subject 

to special scrutiny, e.g., ... paid informer.... It should not be used with a 

category for which this manual gives a more specific instruction, e.g., 

accomplice testimony.” Id. at Subcommittee Note. 

“The justification for the [corrupt source] instruction is that an 

accomplice witness will inculpate others out of a reasonable expectation of 

leniency.” Commonwealth v. Manchas, 633 A.2d 618, 627 (Pa.Super. 

1993), appeal denied, 539 Pa. 647, 651 A.2d 535 (1994) (internal citation 

omitted). “An accomplice charge is necessitated not only when the evidence 

requires an inference that the witness was an accomplice, but also when it 

permits that inference.” Id.

In Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 873 (2011), cert. 

denied, 567 U.S. 937, 133 S.Ct. 24, 183 L.Ed.2d 680 (2012), the trial court 

refused trial counsel’s request to issue the Section 4.01 jury charge. In his 

PCRA petition, the appellant argued appellate counsel was ineffective for 

failing to challenge on appeal the trial court’s failure to give the requested 
J-A25042-20

- 22 -

instruction. In reviewing the claim, our Supreme Court explained that 

although the trial court did not issue the requested instruction under Section 

4.01, the court instructed the jury that witnesses Green and Rucker were coconspirators allegedly in a conspiracy with the appellant who testified on 

behalf of the Commonwealth, and the jury should bear this in mind during 

their deliberations when assessing their credibility. Id. at 662, 17 A.3d at 

906. 

The trial court also instructed the jury to weigh, analyze, and judge the 

credibility and reliability of the witnesses; to consider whether a witness had 

a motive to lie; to consider whether bias or prejudice entered into a witness’s 

testimony; and to consider whether the witness had an interest in the outcome 

of trial that would color that witness’s testimony. Id. at 662, 17 A.3d at 906-

07. Further, the jury heard that both Green and Rucker agreed to plead guilty 

to lesser offenses in exchange for their testimony against the appellant. Given

the totality of the jury charge and the evidence produced regarding Green and 

Rucker’s interest in testifying for the Commonwealth, the Supreme Court held 

that the appellant could not establish prejudice to prevail on his 

ineffectiveness claim. See id. at 663, 17 A.3d at 907. 

Additionally, in Commonwealth v. Slyman, 483 A.2d 519 (Pa.Super. 

1984), the appellant challenged the trial court’s failure to instruct the jury that 

it should regard with heightened scrutiny the testimony of the 

Commonwealth’s informant, who purchased cocaine from the appellant on 
J-A25042-20

- 23 -

behalf of an undercover agent. The appellant raised a related claim of trial 

counsel’s ineffectiveness in failing to request the “corrupt source” standard 

jury instruction. In rejecting the appellant’s claims, this Court explained that 

“[w]e have held that a trial court may properly refuse to grant a defendant’s 

point for charge, which posits that police officers and informants have an 

interest in the outcome of the case, where the court provides a general 

instruction that the jury must consider in its deliberations the potential bias 

or interest with which any witness may have testified.” Id. at 529. Because 

the trial court had issued a general instruction that adequately covered the 

matter of witness credibility,5this Court held that the trial court did not err in 

providing a more detailed jury instruction, and trial counsel was not ineffective 

for failing to request the “corrupt source” jury instruction. Id.

Instantly, at the PCRA hearing, trial counsel acknowledged in hindsight 

____________________________________________

5 The trial court’s instruction stated:

You, members of the jury, must determine what witnesses 

you will believe in order to determine what facts you find to 

be true, and we speak of that as passing upon the credibility 

of the witnesses, determining what credit their testimony is 

entitled to. In determining that, you take into consideration 

the means of knowledge of the matters to which they have 

testified, their appearance and their manner upon the stand 

when testifying, any interest that the witnesses may have 

in the outcome of the case, and considering all of these 

matters and using your own good judgment and experience, 

you will determine what witnesses you will believe and, 

therefore, what facts you find to be true.

Id.
J-A25042-20

- 24 -

that it would have been “better” if he had requested the standard jury 

instructions under Sections 4.01 and 4.06. (N.T. PCRA Hearing at 21). 

Nevertheless, trial counsel stated that a number of judges do not like the 

“corrupt and polluted source” instruction and will not give it. Further, even 

though he did not request, and the court did not give, the instructions under 

Sections 4.01 and 4.06, trial counsel opined that the court’s jury instructions 

viewed in totality adequately covered the relevant concepts of those 

suggested instructions. (Id.) Trial counsel elaborated that “in reviewing the 

jury charge [it] certainly seemed to be covered,” and trial counsel assumed 

“the [jurors] considered those points when they were weighing their decision.” 

(Id. at 28). 

In rejecting Appellant’s ineffectiveness claim, the PCRA court reasoned:

First, we point out that the jury in this case was instructed 

on two occasions with respect to the credibility of witnesses. 

In our opening instructions we told the jury it was their duty 

to judge the credibility of every witness and we gave them 

factors they might consider in performing that duty. One of 

the factors we instructed the jury to consider was whether 

a witness had an interest or anything to gain or lose in the 

outcome of the trial. We again charged the jury in our 

closing instructions with respect to the credibility of 

witnesses. We used as our guide [Pa.SSJI] (Crim) § 4.17.

Next, the flagship of the Commonwealth’s case against 

[Appellant] was the extensive (3 hours) statement 

[Appellant] gave law enforcement three weeks after his 

arrest. [Appellant] requested the opportunity to speak and 

he was represented by counsel during the process. The 

remainder of the Commonwealth’s case against [Appellant] 

was corroborative of what he told law enforcement. In his 

statement, he provided the names of his accomplices and 

all but one testified at trial and subsequently entered pleas 
J-A25042-20

- 25 -

of guilty to the drug offenses. Thus, in this case, [Appellant] 

identified his accomplices to law enforcement, and all but 

one confirmed the relationship in his or her testimony. 

There was no issue of accomplices attempting to inculpate 

[Appellant] since he and they each admitted their 

relationship as well as their criminal enterprise. 

Accordingly, [Appellant] has failed to demonstrate prejudice 

as a consequence of his claim of ineffectiveness based on 

the failure of trial counsel to request a charge on accomplice 

testimony.

(Opinion in Support of Order Denying Relief at 10-11). The record supports 

the PCRA court’s analysis. 

Our review of the record shows that the jury instruction, viewed as a 

whole, was sufficient to instruct the jury regarding how to assess the 

credibility of the witnesses in this case. Consequently, Appellant cannot 

establish trial counsel’s ineffectiveness in failing to request the “corrupt 

source” jury instruction under Section 4.01. See Smith, supra; Slyman, 

supra. Because the standard jury instruction under Section 4.06 should not 

be used where a more specific instruction exists regarding accomplice 

testimony, we cannot say that trial counsel was ineffective in failing to request 

the jury instruction under Section 4.06. See Pa.SSJI (Crim) § 4.01, 

Subcommittee Note. Therefore, Appellant’s fifth issue merits no relief. 

In his sixth issue, Appellant argues that trial counsel failed to conduct 

an adequate cross-examination of Aaron Dimoff as it related to his bias in 

providing testimony for the Commonwealth. Appellant claims that trial 

counsel attempted to cross-examine Mr. Dimoff about his arrest in this case 
J-A25042-20

- 26 -

and whether Mr. Dimoff expected to receive favorable treatment on his 

charges in exchange for his testimony against Appellant. In response, Mr. 

Dimoff gave equivocal answers, claiming uncertainty regarding whether he 

was charged in connection with this case. Appellant insists trial counsel should 

have questioned Mr. Dimoff further to obtain truthful answers and to explore 

Mr. Dimoff’s potential bias.6 Appellant concludes trial counsel was ineffective 

in his cross-examination of Mr. Dimoff, and this Court must grant appropriate 

relief. We disagree.

Preliminarily, “a lawyer should not be held ineffective without first 

having an opportunity to address the accusation in some fashion.” 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 783 (Pa.Super. 2015) 

(en banc), appeal denied, 633 Pa. 744, 123 A.3d 331 (2015) (internal citation 

omitted). “[O]ur Supreme Court has cautioned against finding no reasonable 

basis for trial counsel’s actions in the absence of supporting evidence. The 

fact that an appellate court, reviewing a cold trial record, cannot prognosticate 

a reasonable basis for a particular failure to raise a plausible objection does 

____________________________________________

6 To the extent Appellant complains the prosecutor failed to correct Mr. 

Dimoff’s equivocal testimony concerning his arrest in this case, that claim is 

waived as it could have been presented on direct appeal. See 42 Pa.C.S.A. § 

9543(a)(3) (stating that to be eligible for relief under PCRA, petitioner must 

plead and prove allegation of error has not been previously litigated or 

waived); 42 Pa.C.S.A. § 9544(b) (stating that for purposes of this subchapter, 

issue is waived if petitioner could have raised it but failed to do so before trial, 

at trial, during unitary review, on appeal or in prior state post-conviction 

proceeding). 
J-A25042-20

- 27 -

not necessarily prove that an objectively reasonable basis was lacking.” Id.

at 784 (internal citation omitted). See also Commonwealth v. Weiss, 622 

Pa. 663, 81 A.3d 767 (2013) (collecting cases and explaining that because 

appellant was given evidentiary hearing and did not elicit from trial counsel 

his reasons for failing to request cautionary charge, and because decision 

whether to seek jury instruction implicates matter of trial strategy, record 

before us provided no grounds for deeming counsel ineffective for failing to 

request instruction). 

Instantly, at the PCRA hearing, Appellant did not ask trial counsel any 

questions concerning his cross-examination of Mr. Dimoff. As the court 

afforded Appellant the opportunity for an evidentiary hearing, that was the 

appropriate time for Appellant to inquire from trial counsel about whether he 

had a reasonable basis in failing to question Mr. Dimoff any further regarding 

his arrest in this case. See Weiss, supra. Based on Appellant’s failure to 

ask the necessary questions at the PCRA hearing, Appellant cannot establish 

that trial counsel lacked a reasonable basis for his actions. See id.; ReyesRodriguez, supra. Thus, Appellant’s sixth issue merits no relief. 

In his final issue on appeal, Appellant argues appellate counsel was 

ineffective for failing to comply with Pa.R.A.P. 2119(f). Specifically, Appellant 

complains that appellate counsel raised a challenge to the discretionary 

aspects of sentencing on direct appeal, but that this Court deemed the issue 

waived for Appellant’s failure to include the required Rule 2119(f) statement
J-A25042-20

- 28 -

in his brief. Appellant claims the trial court: (1) imposed consecutive 

sentences for each PWID count, which was inappropriate where the 

Commonwealth charged Appellant with four separate acts of PWID instead of 

only one; (2) miscalculated Appellant’s prior record score, which should have 

been a three instead of a four; (3) improperly determined the relevant drug 

quantities, which impacted Appellant’s offense gravity score (“OGS”); and (4) 

failed to consider Appellant’s rehabilitative needs when fashioning its 

sentence. Appellant insists he would have succeeded on these meritorious 

sentencing claims but for appellate counsel’s failure to include the Rule 

2119(f) statement. Appellant concludes appellate counsel was ineffective and 

this Court must grant appropriate relief. We disagree.

Initially, we observe that Appellant seems to misinterpret the sentencing 

issues raised on direct appeal. On appeal, the sole challenge to the 

discretionary aspects of sentencing raised concerned calculation of Appellant’s 

OGS. Specifically, Appellant claimed “that the trial court erred in assigning an 

[OGS] of ten to each count of PWID, when the evidence presented at 

sentencing failed to [establish] that he possessed between 50 and 100 grams 

of heroin in the time-frame underlying each count.” Bernal, supra at 12. 

Although this Court concluded that Appellant filed a timely post-sentence 

motion raising this claim, followed by a timely notice of appeal, and presented 

a substantial question for review, this Court deemed Appellant’s sentencing 

challenge waived for failure to include a Rule 2119(f) statement. Id. at 12-
J-A25042-20

- 29 -

13. Because the Commonwealth objected to omission of the Rule 2119(f) 

statement, this Court declined to review the merits of Appellant’s claim. 

Appellant now suggests on appeal that he would have succeeded on his 

various sentencing challenges but for appellate counsel’s failure to include the 

Rule 2119(f) statement. Nevertheless, appellate counsel did not raise on 

direct appeal sentencing challenges related to the court’s imposition of 

consecutive sentences in light of the Commonwealth’s separate charges,

7

miscalculation of Appellant’s prior record score, or failure to consider 

Appellant’s rehabilitative needs. Notably, Appellant does not challenge 

appellate counsel’s ineffectiveness in failing to advance these claims on direct 

appeal.8 Rather, Appellant bases his ineffectiveness claim on appellate 

counsel’s failure to include the required Rule 2119(f) statement. Thus, we will 

____________________________________________

7 Appellant raised a similar but distinct issue on direct appeal regarding the 

Commonwealth’s filing of separate PWID charges. Specifically, Appellant 

challenged the Commonwealth’s prosecutorial discretion in charging Appellant 

with four separate PWID charges for conduct that continued over an eighteenmonth timeframe rather than filing a single charge. Appellant complained this 

charging decision ultimately led to Appellant’s receipt of an OGS of 10 on four 

separate counts, instead of an OGS of 11 at only one count. Initially, this 

Court concluded the claim was waived for failure to cite relevant supporting 

authority. See id. at 7-8. Moreover, this Court decided the issue lacked merit 

based on the prosecutor’s considerable discretion in deciding how to bring 

charges, particularly where Appellant was essentially seeking a “volume 

discount” for a year and a half of criminal activity. Id. at 8.

8 To the extent Appellant’s argument could be construed as challenging 

appellate counsel’s ineffectiveness in failing to advance these claims on direct 

appeal, Appellant’s Rule 1925(b) did not preserve such a challenge, as it states 

only that appellate counsel was ineffective in failing to comply with Rule 

2119(f). See Hansley, supra.
J-A25042-20

- 30 -

review only whether Appellant would have succeeded on direct appeal on his 

challenge regarding his OGS had appellate counsel complied with Rule 

2119(f).

In denying relief on this claim, the PCRA court stated:

By way of background, the Commonwealth in its 

Information charged [Appellant] with four counts of [PWID]. 

Each count represented a four month period beginning in 

November, 2012. In each of the four counts it was alleged 

that during that four month period [Appellant] possessed 

with intent to deliver 100 to 1,000 grams of heroin. In this 

regard, it should be noted that the jury acquitted [Appellant] 

of Count 2, the first of the four PWID counts, which covered 

the period from November, 2012 through March, 2013.

This court held a hearing at sentencing since there was 

disagreement with respect to the proper [OGS] to be 

assigned to the three counts of PWID as well as the count 

of conspiracy. The focus of the hearing was the manner 

employed by the Commonwealth in determining the weight 

of the drugs charged in each PWID count as well as the 

count charging conspiracy. Weight was significant 

since...the OGS for PWID of between 100 and 1,000 grams 

of heroin is 11 while the OGS for PWID of between 50 and 

less than 100 grams is 10.

* * *

[Based on the evidence presented at the sentencing 

hearing], and over the strong objection of the 

Commonwealth, we determined that 10 was the appropriate 

OGS since the evidence at trial indicated that [Appellant] 

was addicted to heroin and was using some of his product 

for personal use. Trial counsel agreed that 10 was fair under 

all the circumstances of the case. 

(Opinion in Support of Order Denying Relief at 11-12) (internal citations 

omitted). The PCRA court emphasized that Appellant “won the argument with 

respect to the proper [OGS]” and the court did not know why Appellant was 
J-A25042-20

- 31 -

claiming the evidence produced at the sentencing hearing was insufficient to 

support the OGS of 10. (See id. at 14-15). 

Here, our review of the sentencing transcript supports the PCRA court’s 

analysis. Appellant does not specify on appeal why the court’s use of an OGS 

of 10 was improper in this case.9 Consequently, Appellant cannot demonstrate 

that he suffered prejudice as a result of appellate counsel’s omission of the 

Rule 2119(f) statement. See Chambers, supra. Therefore, Appellant’s final 

claim merits no relief. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/21/2021

____________________________________________

9 Appellant’s reference on appeal to more specific arguments made in his postsentence motions is insufficient to satisfy Appellant’s obligation to develop his 

issues in his appellate brief. See Pa.R.A.P. 2119(a) (discussing argument 

section of appellate brief); Smith, supra; Dodge, supra.