J-S29007-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MALIK ANDERSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1645 EDA 2020

Appeal from the PCRA Order Entered August 3, 2020

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0011782-2013

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 28, 2022

Malik Anderson appeals from the Philadelphia Court of Common Pleas’ 

order dismissing his first petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546, without holding an evidentiary 

hearing. In his petition, Anderson raised multiple claims of counsel’s 

ineffectiveness. Those claims included Anderson’s allegation that trial counsel 

had been ineffective for failing to seek suppression of the derivative evidence 

obtained from an initial statement Anderson made to police during the 

investigation of the murder of Daquan Crump, a crime for which Anderson was 

later convicted. Counsel did file a motion to suppress the statement itself, but 

the trial court denied that motion. On direct appeal, this Court determined 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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that the court erred by failing to suppress Anderson’s initial statement because 

it had been a product of an unconstitutional interrogation, but we also 

concluded that no relief was due because the error had been harmless. 

Anderson now asserts that counsel should have also filed a motion to 

suppress all derivative evidence obtained from that initial statement as it “led 

to the bulk of the evidence the Commonwealth presented at trial.” 

Commonwealth’s Brief at 43. The Commonwealth concedes that this 

ineffectiveness claim is “most problematic” and asks this Court to remand to 

the PCRA court to hold an evidentiary hearing on the claim. Commonwealth’s 

Brief at 3. We agree that Anderson is entitled to an evidentiary hearing on this 

issue, and therefore reverse that part of the PCRA court’s order dismissing 

this claim without a hearing. However, we also agree with the Commonwealth 

and the PCRA court that the remainder of Anderson’s ineffectiveness claims 

lack merit and therefore affirm that portion of the PCRA court’s order 

dismissing those claims.

In order to fully understand Anderson’s first ineffectiveness claim, and 

why it requires a remand for a hearing, a detailed recitation of both the facts 

and the procedural history of this case is necessary. On August 19, 2013, 

construction workers discovered Crump’s body at a construction site in 

Northeast Philadelphia (“the construction site”). Crump had been shot multiple 

times in the head. 
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Police spoke to Crump’s sister on August 20, 2013. She told them that 

“Quil Banga,” later determined to be Sirrieah-Mean Jharquil, had been 

threatening Crump on Facebook. She also told police she had called a number 

her brother often used to contact her, and that person, later determined to be 

Anderson, told Crump’s sister that he had been with Crump the night before 

his murder (August 18, 2013) and had last seen him around midnight. The 

police suspected Jharquil of Crump’s murder but wanted to speak with 

Anderson in connection with the shooting.

Philadelphia Police Detective James Griffin asked Anderson to come to 

the station, and Anderson’s parents took Anderson to the police station around 

12:20 p.m. on August 20, 2013, for what Detective Griffin described as an

“informal interview.” N.T. Motion Volume I, 10/6/14, at 11. Anderson was the 

first person to be interviewed in connection with the murder. Detectives Griffin 

and Henry Glenn did not read Anderson his Miranda1rights, but they did keep 

and question him for more than 30 hours. During that time, Anderson’s 

parents retained an attorney, who contacted the police station as well as 

Detective Griffin directly. Detective Griffin, however, did not relay the 

information to Anderson that his parents had retained an attorney because, 

according to Detective Griffin, Anderson never asked for an attorney.

____________________________________________

1 See Miranda v. Arizona, 384 U.S. 436 (1966).
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During the questioning, Anderson gave information to the detectives 

and eventually signed a statement. Anderson denied any involvement in the 

murder. He told the detectives that he and Crump, who Anderson identified 

as his best friend, were hanging out with three of their friends at Anderson’s 

house on the evening of August 18, 2013. Anderson identified those friends 

as James Thompson, Ryan Farrell and Darrell Holmes. 

According to Anderson, Crump announced to the group that he was 

going to Frankford, and Anderson, Thompson, Holmes and Farrell then got in 

Farrell’s car and went to Farrell’s house. Anderson claimed he last saw Crump 

around midnight, standing outside of Anderson’s house. Sometime around 

three a.m., Anderson said, he received a call from his parents to come home, 

and he and Thompson left Farrell’s house to walk back to Anderson’s house. 

Anderson took a shortcut through the construction site while Thompson took 

a longer route. Anderson stated that once they got back to Anderson’s house, 

the two of them went to sleep. Anderson also told the detectives about the 

dispute Crump had with Jharquil, and the threats Jharquil had made to Crump 

on Facebook.

Based on this information from Anderson, the detectives obtained 

photos of Farrell, Thompson and Holmes. Anderson helped the detectives find 

Thompson’s photo on Facebook. Police then interviewed Farrell and Holmes 

separately at the police station on August 21, 2013, and both gave statements 

with a narrative similar to Anderson’s. They stated that they had last seen 
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Crump around midnight at Anderson’s house on August 19, 2013. Neither 

implicated Anderson in the murder. 

Police released Anderson around 8:40 p.m. on August 21, 2013, more 

than 30 hours after they brought him in for questioning. Anderson met with 

his attorney the following day, August 22, 2013. Anderson’s attorney 

repeatedly told Anderson not to say anything to police about the shooting 

unless he was present.

Meanwhile, also on August 22, 2013, Detectives Ohmarr Jenkins and 

Fred Mole interviewed Jharquil who told police that he had last seen Crump in 

July of 2013 when they had a dispute over missing jeans. He also told the 

detectives that Anderson had shown him a .22 caliber gun in May of 2013. 

Jharquil maintained that he had been at his mother’s office at the time Crump 

was shot. Police were able to confirm this alibi and therefore excluded Jharquil 

as a suspect. 

On August 23, 2013, Detective Gregory Santamala prepared an affidavit 

of probable cause for a warrant to search Anderson’s house. A search warrant 

was issued that same day, and at approximately 2:45 p.m., Detective 

Santamala went to Anderson’s house to conduct the search. As Detective 

Santamala was beginning the search, he received a call from Detective Edward 

Tolliver. Detective Tolliver told Detective Santamala to look for a gun in a 

waffle box in the kitchen freezer based on information he had just learned 

during an interview with Thompson. 
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Detective Tolliver had picked Thompson up to question him on August 

22, 2013, but because Thompson was under the influence of drugs, detectives 

were not able to interview Thompson at that time. Police kept Thompson 

overnight and Detectives Tolliver and Charles Grebloski began interviewing 

Thompson at approximately 2:15 p.m. on August 23, 2013. During that 

interview, Thompson ultimately gave a statement implicating Anderson in 

Crump’s murder. Thompson told the detectives that Crump had actually gone 

with the group from Anderson’s house to Farrell’s house in the early morning 

hours of August 19, 2013. 

Thompson said that at around five a.m., he, Anderson and Crump left 

Farrell’s house to go back to Anderson’s house. However, Thompson stated 

that he did not want to take the shortcut to Anderson’s house through the 

construction site, so he took a longer route to Anderson’s house, while 

Anderson and Crump took the shortcut. According to Thompson, he heard 

gunshots coming from the construction site and Anderson arrived home 

without Crump. He and Anderson then went to sleep.

Thompson recounted that later in the morning on August 19, 2013, 

Anderson told him that he had shot and killed Crump. Thompson stated that 

he saw Anderson with a black .22 caliber gun, which Anderson hid in a crate 

in the basement of Thompson’s girlfriend’s neighbor's house. Thompson then 

told the detectives that a day or two later, Anderson showed Thompson an 

Eggo waffle box while they were in Farrell’s basement and told Thompson he 
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was going to hide the gun in the box in his kitchen freezer until he could bury 

the gun. 

Based on this information, Detective Tolliver called Detective Santamala 

and told him to look for that waffle box in Anderson’s kitchen freezer. 

Detective Santamala searched the freezer, and he found a family pack Eggo 

waffle box inside the freezer in the bottom of a freezer drawer. He picked up 

the box, turned it, and saw an undershirt sticking out from the box. Inside the 

box, wrapped in the undershirt, was a black .22 caliber gun. The gun was later 

determined to be the murder weapon.

Detectives then re-interviewed Farrell on August 23, 2013 and Holmes 

on August 24, 2013. Farrell changed his version of events from the one he 

had given in his first statement. Specifically, Farrell stated that the group had 

not separated from Crump in the early morning hours of August 19, 2013, as 

he had previously maintained, but that Crump had actually come to Farrell’s 

house with the rest of the group. Sometime between three and five a.m. on 

August 19, 2013, Anderson, Thompson and Crump left Farrell's house for 

Anderson’s house. Farrell recounted that Anderson later confessed to shooting 

Crump and that Anderson subsequently met with Farrell, Thompson and 

Holmes to make sure that their stories all aligned.

Holmes also implicated Anderson in his second statement. Holmes 

stated that, contrary to his first statement, Crump did go to Farrell’s house 

with the group and that it was at Farrell's house, not Anderson’s house, where 
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Holmes last saw Crump. According to Holmes, Anderson told Holmes on 

August 19, 2013, to say that he last saw Crump at Anderson’s house around 

midnight. Holmes said he had seen Anderson with a .22 Ruger gun, and he 

saw that gun in a duffel bag Anderson was carrying the day after the shooting.

Detective Griffin arrested Anderson on August 28, 2013. According to 

Detective Griffin, he read Anderson his Miranda rights and Anderson waived 

his rights. Anderson then signed a second statement. In this statement, 

Anderson shared that he and Crump “hung out all day Sunday and smoked 

weed and drank at my house.” Investigation Interview Record of Malik 

Anderson, 8/28/13, at 2. He conceded that Crump had gone to Farrell’s house 

with the group and that “[e]arly Monday morning” he and Crump left Farrell’s 

house. Id. He stated that he had been angry at Crump for single-handedly 

stealing and selling a game system from Farrell that he and Crump had 

planned on stealing and selling together. He confessed to shooting Crump in 

the construction site, admitting that he “stood over him and pulled the trigger 

and shot him in the face until the gun stopped.” Id. Anderson was charged 

with, inter alia, first-degree murder.

The Commonwealth later offered Anderson a plea with a recommended 

sentence of 32 to 64 years in exchange for a guilty plea to third-degree 

murder, a firearms offense, conspiracy to commit burglary and false reports 

to police. Following two separate colloquies, Anderson rejected the plea and 

expressed his desire to go to trial.
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Counsel filed a motion to suppress both of Anderson’s statements to the 

police, and the court held a hearing on the suppression motion.2 Detective 

Griffin and Anderson both testified and gave vastly different accounts of what 

occurred prior to the recitation of each statement. As for the first statement, 

Anderson testified that he was held for over 30 hours at the station but was 

not offered any food or given the opportunity to sleep during that time. 

Detective Griffin denied this. As for the second statement, Anderson said he 

never gave or signed a statement, was never Mirandized and per his very 

specific instructions by his lawyer, repeatedly asked for his lawyer.

The trial court denied the motion to suppress, and the case proceeded 

to trial.3 A jury found Anderson guilty of first-degree murder, possession of an 

instrument of crime and firearms not to be carried without a license. The court 

immediately sentenced Anderson to the mandatory term of life imprisonment 

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2

In the motion, counsel also generally sought to suppress all physical evidence 

seized by law enforcement. See Omnibus Pre-trial Motion General Allegations, 

10/14/13, at 1-2 (unpaginated). However, counsel did not argue for that 

during the hearing, instead limiting his argument to the suppression of the 

statements. See N.T., Motion Volume I, 10/6/14, at 3. 

3 During trial, counsel raised the issue that the suppression of the physical 

evidence aspect of the suppression motion remained outstanding, though 

counsel conceded that he had not really argued that during the suppression 

hearing. See N.T. Trial, 10/10/14, at 73-74 (“I don’t recall you ruling on my

four corners motion with regard to physical evidence only”). The trial court 

agreed that “there was really no argument made” on the suppression of the 

physical evidence, but denied the motion on the record. Id. This discussion 

clearly references the written motion’s arguments regarding the search 

warrant for Anderson’s home and not any request for suppression of any 

derivative physical evidence based on the unconstitutional interrogation.
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for the first-degree murder conviction, and gave lesser sentences, to run 

concurrently on the remaining convictions. 

Anderson filed a notice of appeal with this Court, but that appeal was 

quashed as untimely. Anderson’s appellate rights were subsequently 

reinstated nunc pro tunc, and Anderson again filed a notice of appeal with this 

Court. In considering his appeal, we agreed with Anderson that the trial court 

had erred by not granting his motion to suppress his initial statement to police 

because it had been the product of a coercive custodial interrogation and 

Anderson had not been read his Miranda rights. See Commonwealth v. 

Anderson, 425 EDA 2018, 2019 WL 6911357, at *6 (Pa. Super. 2019) (nonprecedential decision). The Court, however, found that the error had been 

harmless and did not warrant any relief because the first statement given by 

Farrell to police, which had properly been admitted at trial, “contained 

substantially similar information” as that contained in Anderson’s initial 

statement. Id. We rejected Anderson’s remaining claims, and affirmed 

Anderson’s judgment of sentence. Our Supreme Court denied Anderson’s 

petition for allowance of appeal.

Anderson filed a timely pro se PCRA petition, raising 12 claims of 

ineffectiveness of counsel. Appointed counsel filed a Finley/Turner4 no-merit 

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4

 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

banc) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
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letter and an application to withdraw from representation. Anderson filed an 

opposition to the Finley/Turner letter, followed by two pro se supplemental 

PCRA petitions raising additional ineffectiveness claims. The PCRA court filed 

a Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA petition without a 

hearing. On March 10, 2020, Anderson filed a response to the Rule 907 notice, 

as well as a request for an evidentiary hearing on his ineffectiveness claims. 

Shortly thereafter, the courts closed due to the COVID-19 pandemic, and it 

was therefore not until August 3, 2020 that the PCRA court entered an order 

dismissing Anderson’s PCRA petition.5

Anderson filed a pro se notice of appeal, followed by several applications 

seeking to proceed pro se on appeal. This Court eventually remanded for a 

Grazier6 hearing, see Per Curiam Order, 1/19/21 (single page), and the PCRA 

court held a hearing and entered an order granting Anderson’s request to 

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5 Although counsel filed a Finley/Turner letter and an application to withdraw 

from representation, there is no order disposing of that application by the 

PCRA court. Indeed, appointed PCRA counsel filed an application to withdraw 

with this Court, stating that although the “PCRA court accepted the Finley

letter ... an order granting [the application to withdraw] was not entered on 

the [PCRA court’s] docket at the time of PCRA dismissal.” Motion to Withdraw 

as Counsel, 9/17/20, at 1. He urged this Court to grant the motion given that 

Anderson has filed all filings as pro se since the dismissal of the PCRA petition. 

See id. at 2. This Court denied the application to withdraw “without prejudice 

to Appellant’s right to apply to the PCRA court for the requested relief.” See

Per Curiam Order, 10/26/20 (single page).

6 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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proceed pro se on April 8, 2021. Anderson then filed his pro se brief with this 

Court, claiming that the PCRA court erred by rejecting his claims of 

ineffectiveness and dismissing his petition without a hearing.

Our review of an order dismissing a PCRA petition is limited to examining 

whether the PCRA court’s determinations are supported by the record and the 

court’s decision is free of legal error. See Commonwealth v. Shaw, 217 

A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the 

factual findings of the PCRA court and will not disturb those findings unless 

they have no support in the record, we apply a de novo standard of review to 

the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147 

A.3d 915, 919 (Pa. Super. 2016). 

Further, the PCRA court is not required to hold an evidentiary hearing 

prior to dismissing a petition as a petitioner is not entitled to a PCRA hearing 

as a matter of right. See Shaw, 217 A.3d at 269. 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.” Id. This Court is therefore tasked on appeal with 

examining each challenged issue to determine whether the PCRA court erred 

in its conclusion that there were no genuine issues of material fact in 

controversy and in denying relief without conducting a hearing. See 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
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Anderson raises multiple claims challenging trial counsel’s 

ineffectiveness. Counsel is presumed to have been effective. See 

Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003). In order to 

overcome that presumption and prevail on a claim of ineffectiveness, 

Anderson must establish that: (1) the underlying claim has arguable merit; 

(2) counsel had no reasonable basis for his conduct; and (3) he was prejudiced 

by counsel’s ineffectiveness, i.e. there is a reasonable probability that because 

of the act or omission in question, the outcome of the proceeding would have 

been different. See id. 

As noted above, Anderson’s first claim alleges that trial counsel was 

ineffective for failing to file a motion to suppress the evidence the police 

derived from his initial statement to police, which this Court has confirmed 

was illegally obtained. Specifically, Anderson argues this claim has arguable 

merit as there was clearly significant evidence acquired from the illegallyobtained statement. See Commonwealth v. Santiago, 209 A.3d 912, 924 

(Pa. 2019) (stating that the general exclusionary rule, which requires 

exclusion of all evidence unlawfully obtained, extends to the indirect and direct 

products of the illegality under the fruit of the poisonous tree doctrine). He 

further avers that counsel could not possibly have had a reasonable basis for 

failing to seek to suppress this evidence as it made up much of the 

Commonwealth’s case against him, and that the prejudice from this failure is 

clear.
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In response, the Commonwealth concedes that Anderson is entitled to 

a PCRA hearing on this claim, which it describes in the following way: 

[Anderson] argues that because he was the first person of interest 

the police interviewed, but for his illegally obtained statement the 

police would not have been led to the bulk of the evidence the 

Commonwealth presented at trial. [See] Brief for Appellant [at] 

29. [Anderson] lists the pieces of evidence he claims are fruits of 

the poisonous tree, including the identities of Farrell, Holmes, 

Thompson, and Jharquil, whose interviews formed the basis for 

probable cause for the search warrant, which led to the discovery 

of the murder weapon, which in turn led to [Anderson’s] arrest 

and his eventual allegedly false confession. [See] id. at 29. 

Counsel did not seek suppression of all of the evidence derived 

from [Anderson’s] custodial interrogation. [See] Omnibus PreTrial Motion, 10/14/13, 1-3 (unpaginated).

Commonwealth’s Brief at 43 (emphasis in original). 

The Commonwealth, in effect, recognizes that counsel should have done 

so. However, the Commonwealth essentially argues that, even had the more 

comprehensive suppression motion been filed, it may not have garnered relief 

as the Commonwealth may have presented evidence that it had an 

independent source, outside of Anderson’s statement, for the information 

derived from Anderson’s illegally-obtained statement. To that end, the 

Commonwealth states: 

The record does not reflect whether police had an independent 

source for the information [Anderson] now claims counsel should 

have moved to suppress. See [ ] Santiago, 209 A.3d [at] 923 [ ] 

(citing Nix v. Williams, 467 U.S. 431, 442-443 (1984) for the 

proposition that the independent source and inevitable discovery 

doctrine purges the taint of illegally obtained evidence). Of 

particular concern is whether Thompson’s only statement 

incriminating [Anderson] and informing detectives where to find 

the gun, and Farrell[’s] and Holmes’[s] second statements, were 

fruit of the poisonous tree. The evidence [Anderson] claims should 
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have been suppressed includes much of the evidence the 

Commonwealth presented at trial. 

Commonwealth’s Brief at 43-44. “Because much of the Commonwealth’s trial 

evidence is at issue”, the Commonwealth asks this Court to remand for an 

evidentiary hearing on this issue. See id. at 45.

We agree that an evidentiary hearing is warranted. At this juncture, we 

are unable to say that there is no genuine issue of material fact regarding this 

claim or that Anderson is not entitled to relief on the basis of counsel’s failure 

to seek a motion to suppress the derivative evidence obtained from the 

unconstitutionally-coerced statement. A hearing will provide a forum to 

answer these questions, and therefore there is a clear purpose to be served 

by such further proceedings. See Shaw, 217 A.3d at 269. 

We note that the PCRA court did not address this specific claim in its 

opinion. Rather, the PCRA court rejected Anderson’s suppression claim on the 

basis that counsel did, in fact, file a motion to suppress. While there is no 

dispute that counsel filed a motion to suppress, that motion sought 

suppression of the statements Anderson gave to police. It also sought, in a 

separate heading, suppression of the evidence seized from Anderson’s house 

based on an argument that the search warrant was defective.

The omnibus pre-trial motion did not seek suppression of the substantial 

evidence the police derived from Anderson’s initial and unconstitutional 

statement he gave to police, which is what forms the basis of Anderson’s 
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particular claim of ineffectiveness here.7In the end, we agree with the 

Commonwealth that the factual and procedural landscape of this case, 

detailed above, leaves open the question of whether counsel was ineffective 

for failing to seek suppression of the fruit derived from Anderson’s initial and 

unconstitutional statement to police. We therefore reverse the part of the 

PCRA court’s order dismissing this claim without a hearing, and remand to the 

PCRA court to hold such a hearing.

We must now turn to the five other ineffectiveness claims raised by 

Anderson to determine whether those claims merit any relief. Anderson 

essentially argues in his second claim that counsel was ineffective for allowing 

Anderson to reject the Commonwealth’s plea offer with a recommended 

sentence of 32 to 64 years before ensuring that Anderson was aware that he 

would receive a mandatory sentence of life imprisonment should he proceed 

to trial and be convicted of first-degree murder. Anderson insists he would 

have accepted the plea if he understood this. This claim fails.

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7 The PCRA court also noted that, in addition to its belief that counsel had 

already litigated this claim, this Court had previously reviewed this issue and 

found that although Anderson’s statement had been unconstitutionally 

obtained, the error was harmless because Farrell’s initial statement contained 

substantially similar information. However, Anderson’s claim here is 

essentially that police learned of Farrell’s identity through Anderson’s initial, 

unconstitutionally-obtained statement, which led to the police interviewing 

Farrell and ultimately obtaining his statement. To be sure, Detective Griffin 

explicitly stated that “we did not know of [Farrell] ... until we spoke to [ ] 

Anderson.” See N.T. Motion Volume I, 10/6/14, at 47-48. 
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Counsel has a duty to communicate and explain the advantages and 

disadvantages of a plea offer to his client. See Commonwealth v. Martinez, 

777 A.2d 1121, 1124 (Pa. Super. 2001). “Failure to do so may be considered 

ineffectiveness of counsel if the defendant is sentenced to a longer prison term 

than the term he would have accepted under the plea bargain.” Id. In order 

to obtain relief, a petitioner must show that the ineffective assistance of 

counsel caused him to reject the plea. See Commonwealth v. Steckley, 128 

A.3d 826, 832 (Pa. Super. 2015).

Here, the Commonwealth offered Anderson a recommended sentence of 

32 to 64 years in exchange for a guilty plea to third-degree murder, a firearms 

offense, conspiracy to commit burglary, and false reports to police. The court 

colloquied Anderson twice regarding his decision on whether or not to accept 

the guilty plea. The court held the first plea colloquy on September 23, 2014.8

At that colloquy, the following exchange took place:

THE COURT: The charges against you are what we refer to 

as murder generally, which would include first-degree murder, 

and certain gun charges. If you go to trial and are convicted of 

first-degree murder, the mandatory sentence is life in prison. Do 

you understand that?

____________________________________________

8 The notes of testimony from the September 23, 2014 colloquy were not in 

the certified record. All appellants, even those proceeding pro se, are 

responsible for making sure the record forwarded to this Court contains that 

which is needed for the Court to properly review any particular claim brought 

by the appellant. See Commonwealth v. Shreffler, 249 A.3d 575, 584 (Pa. 

Super. 2021). Notwithstanding Anderson’s failure to do so here, upon informal 

inquiry, our Prothonotary was able to secure the notes of testimony and 

include them in the record, enabling us to undertake a more complete 

assessment of this claim.
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[ANDERSON]: Yes, sir.

THE COURT: There can be no other sentence. It’s life in 

prison without parole. Do you understand that, sir?

[ANDERSON]: Yes, sir.

N.T. Hearing, 9/23/14, at 5. The court then went on to explain the plea that 

the Commonwealth had offered him, including the recommended sentence of 

32 to 64 years, and Anderson acknowledged that those terms had been 

explained to him. See id. at 5-6. Anderson rejected the offer at that time. The 

court, however, gave him additional time to consider the plea. 

This exchange in and of itself shows that Anderson was made aware 

that, should he go to trial and be convicted of first-degree murder, he would 

face a mandatory sentence of life imprisonment. His claim fails for that reason 

alone. 

However, counsel’s involvement in making sure Anderson understood 

the terms of the plea and the consequences of not accepting that plea did not 

end there. Following this colloquy, on October 1, 2014, counsel sent Anderson 

a letter memorializing what Anderson and his family had discussed regarding 

the plea given the “serious ramifications involved” in this case. Attorney/Client 

Correspondence, 10/1/14, at 1 (unpaginated). The letter, in no uncertain 

terms, urged Anderson to accept the plea. The letter recounted the 

incriminating evidence the Commonwealth had against Anderson, including 

his confession, his admission to his friends that he had killed Crump, and the 
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fact that the murder weapon was found in his freezer. See id. at 1-2. It was, 

counsel admitted, the “most difficult set of facts [he had] ever been given.” 

Id. at 2. Counsel predicted that if Anderson went to trial, he would be 

convicted of murder in the first degree and he therefore implored him to 

accept the plea offer. Id. at 2. The letter stated:

Obviously, none of this is new news to you, as I have explained 

this all to you in person, which you readily rejected. I am hoping 

that perhaps if you see it in black and white, you will see how 

difficult a task you have been given... I do care about my clients, 

especially at the tender age of 19.

Id. at 2.

Anderson then appeared in court on October 6, 2014, and the court held 

a second plea colloquy. In that colloquy, the court recounted how it had 

previously discussed with Anderson the terms and the recommended sentence 

of the Commonwealth’s plea, and that Anderson had rejected the plea at that 

time. See N.T. Trial, 10/6/14, at 5-6. The court stated that it was its 

understanding that Anderson had again discussed the plea with counsel and 

family as recently as that morning. Anderson acknowledged that he had the 

opportunity to discuss the plea with his family and counsel, but that he still 

did not want to accept the plea. See id. at 6. 

Based on all of the above, it is clear that counsel was not ineffective for 

failing to ensure Anderson was aware that he faced a mandatory sentence of 

life if he proceeded to trial and in turn, that the Commonwealth’s plea offered 
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a lesser sentence than life. Anderson’s acknowledgement that he understood 

this is on the record. 

Anderson asserts in his next claim that counsel was ineffective for urging 

Anderson to take the plea because it included charges that were not included 

in the bill of information. Specifically, Anderson notes that the plea agreement 

would have required him to plead guilty to conspiracy to commit burglary and 

false reports to the police, and neither of these charges were included in the 

bill of information.9 He appears to argue that the inclusion of these charges in 

the plea confused him, counsel did not clarify the matter for him, and this 

confusion caused him to reject the plea. This claim fails.

The prosecutor has the power to select the criminal charges to be filed 

against a defendant and to negotiate plea bargains. See Commonwealth v. 

Cosby, 252 A.3d 1092, 1131 (Pa. 2021). As for the propriety of the terms of 

a plea agreement, we have stated:

The terms of plea agreements are not limited to the withdrawal of 

charges, or the length of a sentence. Parties may agree to - and 

seek enforcement of - terms that fall outside these areas. 

Moreover, even though a plea agreement arises in a criminal 

context, it remains contractual in nature and is to be analyzed 

under contract law standards.

Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013) 

(internal citation omitted). Of course, unlike a typical contract, a plea 

____________________________________________

9

In addition to murder, Anderson was charged with firearms not to be carried 

without a license, possession of a firearm prohibited, and possession of an 

instrument of crime. 
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agreement consented to by the parties does not become binding and valid 

until accepted by the trial court. See Commonwealth v. Martinez, 147 A.3d 

517.

Here, Anderson does not allege that the trial court would not have 

accepted the plea offered to him if Anderson himself had first chosen to accept 

it. In fact, in rejecting this claim below, the PCRA court stated:

It is clear to this court that [Anderson] was not given additional 

charges in his plea agreement. Instead, the plea agreement 

replaced charges, such as replacing first-degree murder with 

third[-]degree murder. The number of charges remained the 

same: the only difference was the severity of some of the charges. 

The most significant change was that the plea involved thirddegree murder, not first-degree murder, meaning that [Anderson] 

did not automatically face life imprisonment and instead faced an 

aggregate term of [32 to 64] years for those charges. Any claim 

that [Anderson’s] attorney negotiated for additional or illegal 

charges is incorrect.

PCRA Court Opinion, 10/22/20, at 15. 

We see no error in the court’s conclusion that counsel was not ineffective 

for advocating that Anderson take a plea that included lesser charges than 

those included in his bill of information. We note that Anderson does not cite 

to any case supporting his assertion that the plea offer was invalid because it 

included uncharged but lesser offenses than the ones he had been charged 

with in the bill of information. As the Commonwealth points out, the bill of 

information could have been amended to include the lesser charges. 

Moreover, again as the Commonwealth points out, the facts of this case “were 

sufficient to support the offenses offered in the plea, meaning the plea was 
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valid.” Commonwealth’s Brief at 51; see Commonwealth v. Vaughn, 326 

A.2d 393, 394 (Pa. 1974) (holding that a guilty plea should not be accepted if 

the facts of the case do not support the plea). Anderson does not dispute this. 

We also add that while counsel absolutely has a duty to explain the 

terms of a plea offer to the client, if the client is confused by those terms, as 

Anderson suggests he was here, it is incumbent upon the client to ask for 

further clarification. That way, counsel has the opportunity to try to explain 

the terms of a plea offer in a way the client better understands. Although 

Anderson now seems to claim he was confused by the plea offer, he does not 

allege that he asked counsel to try to defuse that confusion or that counsel 

refused to do so. No relief is due on this claim. 

Next, Anderson claims counsel was ineffective for failing to object to five 

statements the prosecutor made during closing arguments. Although the PCRA 

court did not specifically address each individual statement Anderson 

challenges, the court did conclude in its opinion that Anderson was not entitled 

to any relief on the basis of his claim of prosecutorial misconduct. We see no 

error in that conclusion.

A prosecutor’s comments constitute reversible error only “where their 

unavoidable effect is to prejudice the jury, forming in their minds a fixed bias 

and hostility toward the defendant such that [the jury] could not weigh the 

evidence objectively and render a fair verdict.” Commonwealth v. Tedford, 

960 A.2d 1, 33 (Pa. 2008) (citation omitted). A prosecutor is permitted to 
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respond to arguments made by the defense. See id. Therefore, if defense 

counsel attacks the credibility of a witness, the prosecutor may respond to 

counsel’s argument and address the credibility of the witness. See 

Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009). Moreover, 

comments based on the evidence, or proper inferences derived from that 

evidence, or ones that amount to mere oratorical flair, do not amount to 

prosecutorial misconduct. See Tedford, 960 A.2d at 33. Any prejudice 

stemming from a prosecutor's factual misstatement during closing arguments 

may be cured by the court’s instruction that the attorneys’ arguments are not 

evidence and the jury is the sole fact-finder. See Commonwealth v. 

Simmons, 662 A.2d 621, 639-640 (Pa. 1995) 

The first prosecutorial statement Anderson challenges is “James 

Thompson, you had to love James Thompson. He was the most credible 

witness in this case.” N.T. Trial, 10/15/14, at 62. Anderson complains that this 

statement amounted to improper witness bolstering in violation of the ABA 

Standards for Prosecutors. However, we agree with the Commonwealth that 

the statement was not improper as defense counsel questioned Thompson’s 

credibility during his closing argument, see N.T., 10/15/14, 52-54, and 

Anderson fails to show that the challenged statement was not a fair response 

to defense counsel’s argument in that regard. See Judy, 978 A.2d at 1020. 

As a result, Anderson has not demonstrated that counsel was ineffective for 

failing to object to this statement.
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Next, Anderson asserts that counsel was ineffective for failing to object 

when the prosecutor argued to the jury that the murder was a “gruesome 

thing. Daquan Crump is shot in the head ten times. He’s left to die in that 

construction site like a dog” and Anderson “let his friend die like a dog over 

$60.” N.T. Trial, 10/15/14, at 64-65, 71. Anderson complains these comments 

constituted an improper appeal to the passions and prejudices of the jury. 

However, we agree with the Commonwealth that these statements “exhibited 

oratorical flair supported by the evidence that [Crump] was shot in the head 

ten times” over a dispute regarding the proceeds from the sale of a stolen 

game system. Commonwealth’s Brief at 57; see also Tedford, 960 A.2d at 

33. They do not, contrary to Anderson’s allegations, constitute prosecutorial 

misconduct and Anderson has therefore not met his burden of showing counsel 

was ineffective for failing to object.

Third, Anderson claims that the prosecutor misstated the evidence when 

he argued to the jury that “Well, yeah James Thompson is down at Homicide 

because Quil Banga gives him information that [Anderson] has a .22. Huh, 

how about that link.” N.T., 10/15/14, at 72-73. We agree with Anderson that 

the prosecutor’s statement is not supported by the record. However, Anderson 

has not shown that the unavoidable effect of this statement was to prejudice 

the jury by forming in their minds a fixed bias and hostility toward Anderson, 

thus impeding their ability to weigh the evidence objectively. See Tedford, 

960 A.2d at 33. This is especially true in light of the fact that the trial court 
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specifically instructed the jury twice that the statements made by counsel are 

not evidence. See N.T. Trial, 10/6/14, at 136; N.T. Trial, 10/15/14, at 100; 

Simmons, 662 A.2d at 639-640. As such, Anderson has failed to show that 

this claim has arguable merit, and therefore that counsel’s failure to object to 

this statement amounted to ineffective assistance.10

We also do not agree with Anderson that counsel was ineffective for 

failing to object to the prosecutor’s statement that Anderson and Crump had 

been fighting since the Friday or Saturday before the murder. While the 

Commonwealth concedes there was no testimony at trial supporting the 

prosecutor's assertion in this regard, we note that Thompson did testify that 

Anderson had told him he was angry at Crump for stealing the game system 

without him and acting stingy. See N.T. Trial, 10/10/14, at 92-93. As such, 

we agree with the Commonwealth that the “misstatement was minor, and any 

prejudice [was] cured by the court’s instruction to the jury that the 

attorney[s’] arguments are not evidence. Simmons, 662 A.2d at 639-40.” 

Commonwealth’s Brief at 59. Moreover, Anderson does not allege that the 

prosecutor deliberately misrepresented the testimony, nor does a review of 

____________________________________________

10 Anderson also summarily asserts that the prosecutor’s statement was an 

attempt to divert the jury’s attention away from the fact that Thompson went 

to the police station intoxicated and with the intent to lie. Anderson does not 

explain or develop this bald assertion any further, and it is consequently 

waived. See Commonwealth v. Treiber, 121 A.3d 435, 467 (Pa. 2015) 

(stating that ineffectiveness claims that are not properly developed are 

waived).
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the record show evidence of such intent. See Simmons, 662 A.2d at 639-640 

(holding that prosecutor’s misstatement of testimony was not prosecutorial 

misconduct when there was no evidence the misstatement was deliberate). 

Therefore, Anderson has failed to show counsel was ineffective.

The final prosecutorial statement Anderson claims counsel was 

ineffective for failing to object to is the statement “That’s when the body is 

found. James Thompson, I don’t know what time it was, 3:30, 4:30. It was 

somewhere around there. He called his parents. You know he called his 

parents. Finally, they’re like, Where are you? That’s how come he knows what 

time it was.” N.T. Trial, 10/15/14, at 77-78. Anderson argues this statement 

was improper because Thompson did not testify that he called his parents that 

morning. As the Commonwealth notes, however, this statement was likely a 

mix-up with Anderson’s statement that his parents called him around three 

a.m. to come home. Indeed, Anderson does not allege, nor does the record 

reflect, that the misstatement was deliberate. We agree with the 

Commonwealth that this was an unintentional and minor inconsistency, and 

any prejudice was cured by the court’s jury instructions, given twice, that the 

attorney’s comments are not evidence. See Simmons, 662 A.2d at 639-40. 

Therefore, this particular claim also does not support a finding that counsel 

was ineffective.

In the end, we see no error in the PCRA court’s conclusion that none of 

these instances of alleged prosecutorial misconduct provide a basis of relief 
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for Anderson. He has not shown that counsel was ineffective for failing to 

object to any of these statements, either because the comments were proper 

responses to defense counsel’s arguments, represented oratorical flair 

supported by the evidence, or were factual misstatements with any resulting 

prejudice being cured by the court’s specific instruction that the attorneys’ 

arguments are not evidence. No relief is due. 

In his fourth claim, Anderson takes issue with counsel’s actions 

regarding the diminished capacity/intoxication charge given by the court. 

Anderson acknowledges that counsel asked for a diminished 

capacity/intoxication charge based on the evidence that Anderson smoked 

marijuana on the day of the murder, and the court gave such a charge. See

N.T. Trial, 10/15/14, at 120-121, 123. He contends, however, that counsel 

should have also requested that the charge include the fact that Anderson 

“drank” on the day of the murder. In support of this contention, Anderson 

points to his second statement to police in which he claimed that he and 

Crump “smoke and drank” all day prior to the murder. He proposes that 

“drank” could possibly mean that he took some type of oral medication, and 

speculates that a toxicology report of Crump could support this.11 In the 

alternative, he argues that “drank” refers to alcohol consumption. Either way, 

____________________________________________

11 We note that the record does include a toxicology report performed on 

Crump. However, Anderson in no way makes any meaningful effort to tie that 

toxicology report to his claim here.
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he summarily asserts that counsel should have requested that the diminished 

capacity/intoxication charge include a reference that he had also “drank” on 

the day of the murder. This claim is meritless.

A diminished capacity instruction due to voluntary intoxication is only 

warranted where the record contains evidence that the defendant was 

intoxicated to the point of losing his faculties or sensibilities. See

Commonwealth v. Padilla, 80 A.3d 1238, 1263 (Pa. 2013). Evidence that a 

defendant merely ingested alcohol or drugs, without more, does not warrant 

a voluntary intoxication instruction. See id.

Here, we agree with the PCRA court’s conclusion that Anderson has not 

demonstrated that counsel was ineffective as it relates to his request for a 

diminished capacity instruction. As the Commonwealth aptly explains:

The court instructed the jury on diminished capacity because there 

was evidence that [Anderson] smoked marijuana. The only 

evidence that [Anderson] drank alcohol is a passing reference in 

his confession. Moreover, there was no evidence that [Anderson] 

was intoxicated to the point of losing his faculties or sensibilities.

Commonwealth’s Brief at 62 (citations to notes of testimony omitted). 

As such, it is questionable whether Anderson has shown that he was 

entitled to any diminished capacity instruction, though the court granted 

counsel’s request and gave one as it related to Anderson’s marijuana use. In 

any event, because the record does not contain evidence that would warrant 

the giving of a diminished capacity instruction for use of an unidentified oral 

medication or alcohol, Anderson has failed to demonstrate that counsel was 
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ineffective for requesting a diminished capacity instruction that included the 

ingestion of those substances. No relief is due.

In his final claim, Anderson argues that counsel breached his duty of 

loyalty to Anderson, and labored under a conflict of interest, because counsel 

did not, according to Anderson, believe Anderson’s version of the events 

surrounding Crump’s murder. In support of this assertion, he points to 

excerpts from counsel’s letter urging him to take the plea as well as to 

statements made by counsel during trial and his opening argument. He 

appears to allege that all of the above ineffectiveness claims are a result of 

counsel’s hostility towards him and his subsequent breach of loyalty, and that 

he is therefore entitled to relief based on the cumulative prejudice emanating 

from those claims. This claim is also without any merit. 

The duty of loyalty is the obligation of counsel to avoid actual conflicts 

of interest that would adversely affect counsel’s ability to perform on behalf 

of their client. See Commonwealth v. Washington, 880 A.2d 536, 543 (Pa. 

2005). To establish a breach of this duty, the client must show there was an 

actual conflict of interest and that the conflict adversely affected the outcome 

of the client’s case. See id. When a client claims that counsel was ineffective 

because personal animosity caused a conflict of interest, the client must show 

a direct correlation between the animosity and the deprivation of his right to 

a fair trial. See id. at 545. At the same time, counsel’s strict belief in a client’s 
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innocence is not a requisite of effective representation. See Commonwealth 

v. Gardner, 378 A.2d 465, 469 (Pa. Super. 1977).

Anderson first argues that counsel’s letter, referenced in detail above, 

demonstrates that counsel breached his duty of loyalty to him. We agree with 

the PCRA court that this is simply not the case. Rather, it is clear that counsel 

“wrote the letter to give [Anderson] a realistic outlook of his trial prospects, 

not as proof of abandoning his client.” PCRA court opinion, 10/22/20, at 26. 

The reality outlined by counsel was that, in light of the extensive evidence the 

Commonwealth had against Anderson, it was counsel’s belief that Anderson 

would be convicted of first-degree murder if he went to trial. Counsel made 

clear in this letter that he was actually looking out for Anderson’s interests by 

recommending that he take the plea to avoid a first-degree murder conviction. 

Anderson complains, however, that the letter demonstrated counsel had 

a conflict of interest and did not believe his side of the story given that the 

letter documented that the murder weapon had been found in his freezer, 

Anderson had spoken to police against counsel’s advice, and that he was the 

last person to be seen with Crump. Of course, as both the Commonwealth and 

the PCRA court point out, counsel’s letter was merely reciting the evidence 

the Commonwealth had to support its prosecution of Anderson for first-degree 

murder. In any event, even if counsel “actively believed” that Anderson 

confessed to and was guilty of the murder, as Anderson maintains, “[c]ounsel 

does not have to believe in their client’s innocence to effectively represent 
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him, so absent a demonstration of how this belief directly affected the 

outcome of trial, counsel did not breach his duty of loyalty.” Commonwealth’s 

Brief at 65 (citing Washington 880 A.2d at 545; Gardner, 378 A.2d at 469). 

In the same vein, Anderson complains that counsel’s statements during 

trial that Anderson stayed home on the night of August 19, 2013, rather than 

going to Farrell’s house with the rest of the group, represented a breach of 

loyalty because it contradicted the record and his version of events. Again, 

Anderson has not shown that counsel made these statements out of hostility 

towards him or out of any conflict of interest, or that the statements served 

to deprive him of a fair trial. See Washington, 880 A.2d at 545.

Anderson also insists that counsel acted contrary to his interests when 

he stated in his opening remarks that “If what was just said [by the prosecutor 

in her opening remarks, outlining all of the evidence the Commonwealth had 

against Anderson] was the situation, we don’t even need a trial. We just need 

a noose.” N.T. Trial, 10/8/14, at 146. However, Anderson neglects to put this 

statement in context. After he made that statement, defense counsel 

continued:

This defendant suffered a tremendous loss when his friend was 

killed. They were friends a long time. They were really good 

friends. And so much so that when the deceased, Daquan Crump, 

needed a place to live, he brought him in.

Id.

As the Commonwealth explains, “[c]ounsel made [the challenged] 

statement in the context of setting up the defense theory that [Anderson] had 
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no motive to desire the death of [Crump] because they were best friends. In 

this instance, [the challenged] statement was not prejudicial.”

Commonwealth’s Brief at 65. 

We agree, and conclude that Anderson has not shown that this 

statement demonstrates counsel was hostile towards him or was laboring 

under a conflict of interest, nor has he shown that the statement deprived him 

of a fair trial. See Washington, 880 A.2d at 545. We also note that to the 

extent Anderson makes the overarching claim that all of the ineffectiveness 

claims he presents in this appeal stemmed from counsel’s hostility towards 

him or some other conflict of interest, and that he is therefore entitled to relief 

based on the cumulative effect of all of those claims, we reject this claim. “No 

number of failed claims may collectively warrant relief if they fail to do so 

individually.” Tedford, 960 A.2d at 56 (citations omitted). While we agree 

with Anderson that his first claim merits relief, we have given him relief based 

on that one meritorious claim. The rest of his ineffectiveness claims do not 

warrant relief, individually or cumulatively.

In sum, we conclude that Anderson is entitled to an evidentiary hearing 

on his claim that counsel was ineffective for failing to file a motion to suppress 

the evidence derived from his initial, unconstitutionally-obtained statement to 

police. We therefore reverse the portion of the PCRA court order denying that 

claim without a hearing. We also agree with the PCRA court that the remainder 
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of Anderson’s ineffectiveness claims lack merit, and affirm that portion of its 

order dismissing those claims without a hearing.

Order reversed in part, and affirmed in part. Matter remanded to the 

PCRA court to hold a hearing, limited to Anderson’s claim that counsel was 

ineffective for failing to file a motion to suppress the evidence derived from 

Anderson’s initial statement to police. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/28/2022