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____________________________________ * Former Justice specially assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

RAYMOND ARMSTRONG

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3465 EDA 2017 Appeal from the PCRA Order October 12, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0008303

- 2009

BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E. MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 30, 2018
Appellant Raymond Armstrong appeals from the Order entered in the Court of Common Pleas of Philadelphia County on October 12, 2017, dismissing his first petition filed under t he Post Conviction Relief Act (“PCRA”). 1 We affirm. This Court offered the following summary of the case history in deciding Appellant’s direct appeal :

These charges arose out of a September 27, 2008, incident in which police responded to a radio call for a person with a weapon at 2629 Wilder Street in the city and county of Philadelphia. Upon arrival, the police found [A]ppel l ant lying naked in the street and upon inspection of the home found the decedent, later identified as Anthony Williams (Willia ms), a thirty

seven (37) year

- old black male lying on the living room floor unresponsive. Williams was pronounced dead by paramedics at

_________________ __________ ______ ____ _______ 1 42 Pa.C.S.A. §§ 9541

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the scene at 10:55 p.m. An autopsy later revealed that the decedent’s cause of death was asphyxia due to strangulation and manner of death was homicide. Trial Court Opinion, 11/15/12, at 2. Commonwealth v. Armstrong , No. 1851 EDA 2012 , unpublished memorandum at 1

- 2 (Pa.Super. filed Sept. 3, 2013), appeal denied , 624 Pa. 685, 87 A.3d 317 (2014), cert. denied , Armstro ng v. P ennsylvania , 135 S.Ct. 275, 1 90 L.Ed. 2d, 202, 83 USLW 3192 (Oct. 6. 2014). Appellant filed the instant PCRA petition on August 21, 2015, and thereafter filed his Amended P CRA Petition on April 3, 2016. The Commonwealth filed its Motion to D ismiss on November 28, 2016, and on February 21, 2017, and June 12, 2017, the PCRA court held evidentiary hearing s . O n July 14 and 20, 2017, Appellant and the Commonwealth filed post
- hearing briefs, respectively, following which the PCRA court held a n

a dditional evidentiary hearing on August 29, 2017

. The PCRA court ultimately dismissed Appellant’s PCRA petition on October 12, 2017 , at which time it also filed its Order and Opinion

. Appellant filed a timely notice of appeal with this Co urt on October 20, 2017. The trial court did not order Appellant to file a statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did not file a concise statement

. In his “Petitioner

- Appellant’s Opening Brief , ” (here inafter “Appellant’s Brief”), Appellant presents the following issues f o r this Court’s consideration:J

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I. The PCRA court erred by denying [Appellant’s] Brady [ 2 ]

claim because the record evidence establishes: (1) [Appellant], while at Homicide, gave two exculpatory statements to Detectives Harkins and Morton, where he explained how Anthony Williams attempted to sexually assault him and this is what precipitated the events that ultimately led to Williams’s death; (2) Homicide suppressed these exculpatory s tatements by not disclosing them to the District Attorney’s Office; and (3) the suppression of these two exculpatory statements prejudiced [Appellant], particularly in light of the prosecutor’s closing arguments where he accused [Appellant] of fabricating the sexual assault narrative only after reviewing the discovery and crime scene photographs. U.S. Const. Amdts. 5, 6, 8, 14; Pa.Const.art.1, sec.8,9.
II. The prosecutor’s false argument to the jury where he told

the jury [Appellant] fabricated the sex ual assault narrative only after he viewed the discovery and physical evidence prejudiced [Appellant] warranting a new trial. U.S. Co nst. amdts. 5,6, 8, 14’ Pa. Const. art.1, §§ 8,9.
III. The PCRA court erred by not granting an evide ntiary

hearing where [Appellant] could present several witnesses in support of his claim trial counsel was ineffective for failing to present substantial testimony and evidence that corroborated [Appellant’s] testimony that Anthony Williams die d as a result of [Appellant] defending himself against Williams’s attempted sexual assau l t. U.S. Const. amdts. 5,6,8,14; Pa. Const. art.1, §§ 8,9. [IV.] The PCRA court erred because trial counsel was

ineffective for failing to request an involuntary manslaughter instruction. U.S. Const. amdts. 5,6,8,14; Pa. Const. art. 1, §§ 8,9. [V.] The PCRA court erred because trial counsel was

ineffective for not requesting a sudden pro vocation

_________________ __________ ______ ____ _______ 2 Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).J

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- instruction in connecti on with the trial court’s voluntary manslaughter instruction. U.S. Const. amdts. 5,6,8,14; Pa. Const. art.1, §§ 8,9. [VI

. ] The cumulative errors

- fr o m the Brady violatio n s, to the

prosecutor’s false argument, to trial counsel’s ineffectiveness

- rendere d [Appellant’s] trial fundamentally unfair. U.S. C o nst. amdts. 5,6,8,14; Pa. Const. art.1, §§ 8,9. Appellant’s Brief at 3

- 4. ( boldface type and unnecessary capitalization omitted). 3 “Our standard of review for issues arising from the denial of PCRA relief is well

- settled. We must determine whether the PCRA court’s ruling is supported by the record and free of legal error.” Commonwealth v. Johnson , 179 A.3d 1153, 1156 (Pa.Super. 2018) ( citation omitted). Prior to considering Appellant’s first two issues presented , we note that
issues which could have been raised on direct appeal but were not are waived for the purposes of the PCRA. See 42 Pa.C.S. A. § 9544(b) (providing that “an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction

_________________ __________ ______ ____ _______ 3 Pursuant to Pa.R.A.P. 2135, “a principal brief shall not exceed 14,000 words and a reply brief shall not exceed 7,000 words .” Pa.R.A.P. 2135(a)(1). Appellant’s brief excee ds 14,000 words ; however, he properly filed a motion requesting to exceed that word limit on March 16, 2018, and this C ourt granted the motion in a Per Curiam Order filed on April 10, 2018.J

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proceedi ng”). As we find both of these claims could have been raised previously , they are waived

. Appellant argues in his brief that his Brady claim 4 arises following the testimony of Detectives Brian Peters, John Harkins and Levi Morton at the

_________________ __________ ______ ____ _______ 4 “The crux of the Brady rule is that due process is offended when the prosecution withholds material evidence favorable to the accused.” Commonwealth v. Wholaver , ___ Pa. ___, ____, 177 A.3d 136, 158 ( 2018) (citation omitted) . “To succeed on a Brady claim, the defendant must show: (1) evidence was suppressed by the prosecution; (2) the evidence, whether exculpatory or impeaching, was favorable to the defendant; and (3) prejudice resulted.” Commonwealth v. Hannibal , 638 Pa. 336, 358, 156 A.3d 197, 209 ( 2016). “A Brady violation exists only where the suppressed evidence is material to guilt or punishment, i.e. , where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Id

. Brad y does not require the disclosure of information that is not exculpatory but might merely form the groundwork for p ossible arguments or defenses, nor does Brady requi re the prosecution to disclose every fruitless lead considered during a criminal investi gation . The duty to disclose is limited to information in the possession of the government bringing the prosecution, and the duty does extend to exculpatory evidence in the files of police agencies of the government bringing the prosecution. Brady is not v iolated when the appellant knew or, with reasonable diligence, could have uncovered the evidence in question, or when the evidence was available to the defense from other sources. Brady sets forth a limited duty, not a general rule of discovery for crimi nal cases. Commonwealth v. Roney , 622 Pa. 1, 23, 79 A.3d 595, 608 (2013) , cert. denied , 135 S.Ct. 56, 190 L.Ed.2d 56, 83 USLW 3185 (2014) (internal citations and quotation marks omitted) (emphasis in original)

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PCRA hearing held on July 12, 2017, at which time they indicated Appellant had made certain statements concerning the circumstances of Mr. Wi ll iams’ death which neither reduced to writing

. S ee Appellant ’s Brief at 52

- 5 9

. Appellant surely was aware prior to trial that he had spoken with police on the night of the murder because he detailed for the PCRA court a t the initial evidentiary hearing his conversations with Detective s Harkins and Morton

. N.T. Hearing, 6/12/17, at 8

- 49 . He indic a ted that Detective Harkins was “writing things down on the desk” before he placed his pen down and “just started listening” to Appellant. Id . at 14. He recalled reiterating his account of the events leading to Mr. Williams’ death t o Detective Morton and another police officer who stood and listened. Id . at 16

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. Appellant also stated that he recollected his conversation s with Detectives Morton and Harkins and that he had inf o rmed trial counsel both prior to and during the trial in 2012 that he had provided the se d etectives with a statement. Id. at 49

- 50

. Furthermore, co unsel for Appellant argued Appellant had stated that on the night of the murder he was transported from the hospital to the Homicide
Unit where he gave statements and biographical information to a detective. Counsel characterized Appellant’s explanation of what happened next as follows: They transported him to Homicide and he gave statements to a detective. Harkins took it. They take bi ographical information and while Detective Harkins took that biographical information, he told Detective Harkins, Look, I did this. I defended myself because Mr. Williams was sexually assaulting me.J

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- They did a formal interview with Detective Morton, and according to [Appellant], he, again, gave another sta tement consistent with what he t old Detective Harkins. None of those statements

— there’s no Miranda [ 5 ] waiver statement or sheet in the discovery. And there is no statements from [Appellant] anywhere.
N.T. Hearing, 2/21/17, at 22

. In light of the foregoing, Appellant could have made a motion prior to August 21, 2015, the date on which he filed the instant PCRA petition , either
pre - trial, mid

- trial or post trial for a Brady hearing to determine whether or
not there had been any notes, recordings, or other transcriptions of Appellant’s interview with police to bolster h i s claim that he had revealed he

was defe nding himself because Mr. Willi ams was sexually assaulting him

. See Commonwealth v. Ovalles , 144 A.3d 957, 965

– 66 ( Pa. Super. 2016)

. Thus, Appellant could have alleged that the Detectives withhe l d any resultant notes/ statement and/or failed to disclose the same to the District Attorney’s
O ffice prior to the time he filed the instant PCRA petiti on. Therefore, we find this issue waived. 42 Pa.C.S.A. § 9544(b). 6

_________________ __________ ______ ____ _______ 5 Miranda v. Arizona , 384 U.S. 436 (1966). 6 Even were we to find Appellant ’ s Brady claim was not via ble until the Detectives testified in June of 2017, we agree with the PCRA court that Appellant cannot demonstrate he was prejudiced . Appellant had provided Detectives Harkin s and Morton with inconsistent , undocumented versions of the cause of Mr. Williams’ death. As the court found, if such contradictory statements were introduced at trial, “the inconsistency surely would have been used against [Appellant].” I n addition , the PCRA court stressed Appellant cannot establish the prejudice prong o f the Brady test, for “[b]ased on the amount of time it take s to strangle someone to death

- two to fiveJ

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It follows that Appellant could have challenged the prosecutor’s alleged “false argument” to the jury during closing argument on direct appeal at which time he, in fact, challenged the prosecutor’s closing argument on other grounds

. See Armstrong , supra , No. 1851 EDA 2012, at 8

- 11; therefore, this issue is waived as well

. 7 B ased on the foregoing, Appellant is not entitled to relief on either of these initial two claims

.

_________________ __________ ______ ____ _______ minutes

- even if [Appellant’s] police statements had been disclosed and admitted into evidence, it would have been exceedingly unlikely that the result of the proceeding would have been different. . . . if [Appellant] had initially acted in self

- defense, his excessive force n egated any self

- defense claim. ” Trial Court Order and Opinio n, filed 10/12/17, at 9

- 11. Furthermore , Appellant claims that because he “ immediately told detectives Williams attempted to sexually assault him and that this was what precipitated the altercation that ultimately led to William’s death, there is a reasonable probability this evidence would have altered at least one juror’s view of the Comm onwealth’s first

- degree murder narrative.” Appella n t’s Brief at 68 (emphasis added)

. However, the testimony of Detective Brian Peters at the June 12, 2017, PCRA hearing revealed Appellant initially identified himself as “Adam” and informed police the mu rder was “a cleansing for the revival, and that it had to be done,” N.T

. Hearing 6/12/17, at 53

- 55. In addition, Detective Harkins stated Appellant both indicated he thought Mr. Williams had broken his neck as a result of a fall down the steps and that h e had choked Mr. Williams until he stopped struggling

. In addition, Detective Harkins did not take a formal written statement from Appellant because of his agitated mental state, and he had no further involvement in the trial process. Id . at 68

- 71

. Detective Levi Morton testified that he had no pen or notepad when he spoke to Appellant , and ultimately decided not to obtain a writte n statement from Appellant due to th e inconsistencies in his account

. Id . at 107 , 128

- 29

. Thus, Appellant further has fa iled to prove that the Commonwealth suppressed the alleged material evidence.

7 Assistant District Attorney Mark Levenberg testified at the August 29, 2017, that he could not recall specifically speaking with any detective regarding Appellant’s statemen ts to them and his review of the discovery did not revealJ

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We now consider Appellant's three claims pertaining to the ineffective assistance of trial counsel. In doing so, we bear in mind that counsel is presumed to be effective. Commonwealth v. Washington , 592 Pa. 698, 712, 927 A.2d 586, 594 ( 2007). To overcome this presumption and establish the ineffective assistance of counsel, a PCRA [petitioner] must prove, by a preponderance of the evidence: “(1) the underlying legal issue has arguable merit; (2) that counsel's actions lacked an objective reasonable basis; and (3) actual prejudice befell the [appellant] from counsel's act or omission.” Commonwealth v. Johnson , 600 Pa. 329, 346, 966 A.2d 523, 533 ( 2009) (citations omitted). “[A petitioner] establishes prejudice when he demonstrates that ther e is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id

. A claim will be denied if the petitioner fails to meet any one of these requirements. Commonwealth v. Springer , 961 A .2d 1262, 1267 (Pa. Super. 2008).

_________________ __________ ______ ____ _______ any report indicating Appellant had provided detectives at Homicide with a statement. S ee N.T. Hearing, 8/29/17, at 18

- 25, 29

- 31. Notwithstanding, Attorney Levenberg’s closing argument would have been appropriate even if he were aware of the testimony Detectives Harkins and Morton had provided at the June 12, 2017, hearing, for his reference to Appellant’s contradictory testimony during his closing argument at trial wa s supported by the record. Appellant testified both that he never struck Mr. Williams in the face and that he hit him in the left side of his face when Mr. Williams was biting Appellant’s hand. N.T. Trial, 6/21/12, at 154, 158

- 59. Moreover, as we stated on direct appeal, the trial court instructed the jury that statements made by counsel do not constitute evidence. Armstrong , supra at 9

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Appellant maintains trial counsel had been ineffective for failing to present the testimony of numerous defense witnesses

- Tayo Afolabi, Michele Canales, Hayley Sydor, Eric Tolbert, Linda Armstrong (Appellant’s mother),
Dr s . Micha ls and Manion, and Harold Robinson

. Appellant argued before the
PCRA court that had each of the proposed witnesses testified at trial, he or she would have corroborated Appel lant’s claims he acted in self

- defense as a result of a sexual assault on the night of the murder. N.T. Hearing, 2/21/17,
at 7

- 8. Appellant agreed with the PCRA court’s characterization of the proposed testimony as “they’re basically all repeats or a variation on the same thing; that the decedent was obsessed with [Appellant].” Id . at 10. In his appellate brief, Appellant avers the opinion testimony of lay witnesses “would have been ‘helpful to a clear understanding’ of why Williams attacked [Appellant].” Appellant further reasons that “[s]imply saying Williams attempted to sexually assault him is a start, but t o ensure [Appellant] raised reasonable doubt regarding the murder charge, trial counsel needed to present this type o f e vidence to corroborate [Appellant’s] testimony that Williams was sexually attracted to a n d obsessed with him.” Appellant’s Brief
at 75. Appellant asserts such testimony was a dmissible to support his self

defense theory at trial und er Pa.R.Evid. 404(a)(2)(B) and 405(b)(2) 8 as

_________________ __________ ______ ____ _______
8 Rule 404 entitled “Character Evidence; Crimes or Other Acts” reads in pertinent part as follo w s:J

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_________________ __________ ______ ____ _______ (a) Character Evidence. (1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to limitations imposed by statute a defe ndant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant's same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.
Pa.R.E. 404. Pa.R.E. 405(b)(2) en titled “M ethods of Proving C haracter”
states: (b) By Specific In stances of Conduct. Specific instances of conduct are not admissible to prove character or a trait of character, except: *** (2) In a criminal case, when character or a character trait of an alleged victim is admissible under Pa.R.E. 404(a)(2)(B) the defen dant may prove the character or character trait by specific instances of conduct.
Pa.R.E. 405.J

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evidence of a personal character trait of the alleged victim, and “not only admissible, but extremely probative to the issue of whether Williams attempted to sexually assault [Appellant.]” Appellant’s Brief at 76, 85. “Counsel has a general duty to undertake reasonable investigations or make reasonable decisions that render particul ar investigations un necessary.” Johnson , at 350 , 96 6 A.2d at 535 . “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.” Id . at 350, 966 A.2d 535

- 36. [W]hen raising a claim of ineffectiveness for the failure to call a potential witness, a petitioner satisfies the performance and prejudice requirements of the [ Strickland v. Washington , 46 6 U.S. 668 (1984)] test by establishing that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimo ny of the witness was so prejudicial as to have denied the defendant a fair trial[.] To demonstrate Strickland prejudice, a petitioner must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case. Coun sel will not be found ineffective for failing to call a witness unless the petitioner can show that the witness’s testimony would have been helpful to the defense. Commonwealth v. Matias , 63 A.3d 807, 810

- 11 (Pa.Super. 2013) (citations and quotation marks omitted) , appeal denied , 621 Pa. 671, 74 A.3d 1030 (2013)

. In determining these claims lacked merit, the trial court reasoned as follows:J

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[Appellant] asserts that trial counsel was ineffective for failing to call as witnesses, Harold Robinson, Semaj Howard, Tayo Afola bi, Michele Canales, and Hayley Sydor. Each witness would have testified to the victim's obsession with [Appellant] and his unwanted sexual advances toward others. [Appellant] argues that this testimony would have helped establish that [Appellant] acted in self

- defense at the time of the murder. Robinson, who previously lived with the victim, would have testified that the victim made unwanted sexual advances toward him (Robinson) and a friend, Jerome, while Robinson lived at the victim's home. According to Robinson, the victim arranged for attractive men from out of town to travel to his home to have sex with. Robinson also claims that the victim, who took photographs of male models, had more photograph s of [Appellant] than any other male model. Similar to Robinson, Howard would have testified t hat the victim "inappropriately touched him [(Howard)] repeatedly by grabbing his buttock and trying to kiss him." Howard would have further testified that he wit nessed the victim become angry when [Appellant] was with women. Afolabi would have testified that the victim led men to believe that he had a modeling company to bait them to have sex with him. He would have also testified that the victim was fascinated wi th [Appellant][.] Similarly, Canales and Sydor would have testified that young m en frequently stayed with the victim and that the victim was sexually obsessed with [Appellant]

. To obtain relief based on ineffective assistance of counsel, a petitioner must show that such ineffectiveness "in the circumstances of the particular case, so undermined the truth

- determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v Jones , 912 A.2d 268, 278 (Pa. 2006); 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is strongly presumed to have rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington , 466 U.S. 668 (1984); Commonwealth v Weiss , 81 A.3 d 767, 783 (Pa. 2013). To overcome this strong presumption, the Petitioner has to satisfy the performance and prejudice test set forth in Strickland v Washington , 466 U.S. 668 (1984); see also Commonwealth v Pierce , 527 A.2d 973, 975 (Pa. 1987). The Strick land/Peirce test applies by looking to three elements

- whether: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) the petitioner hasJ

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shown that he suffered prejudice as a result of counsel's lapse, i.e., that there is a reason able probability that the result of the proceeding would have been different. Commonwealth v Bennett , 57 A.3d 1185, 1195

- 96 (Pa. 2012) ( citing Pierce , 527 A.2d at 975). Failure to satisfy any prong of this test for ineffectiveness will require rejection of the claim. Commonwealth v. Daniels , 104 A.3d 267 (Pa. 2014). If a claim fails under any necessary element of the Strickland/Pierce test, the court may proceed to that element first. Bennett , 57 A.3d at 1196. A "claim has arguable merit where the factual averments, if accurate, could establish cause for relief." Commonwealth v Pander , 100 A.3d 626, 631 (Pa. Super. 2013). In addition to meeting the Strickland/Peirce requirements for ineffectiveness, to establish t hat counsel was ineffective for failing to call a witness, the Petitioner must demonstrate that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the witness's testimony was so prejudicial as to deny him a fair trial. Commonwealth v Washington , 927 A.2d 586, 599 (Pa. 2007) (citing Commonwealth v. Fletcher , 561 Pa. 266, 750 A.2d 261, 275 (Pa. 2000)). Because none of the proffered testimony of Robinson, Howard, Afolabi, Canales, and Sydor is relevant to prove self

defense, these claims are devoid of merit. Further, claims that the victim made unwanted sexual advances toward [Appellant] are inadmissible. As the Commonwealth correctly asserts, a defendant is permitted to introduce specific acts of violence by the victim only "if an accused has knowledge of the victim's prior violent conduct"; or if the victim had a prior conviction that showed his aggressi ve propensities. Commonwealth v McClain , 587 A 2d 798, 802

- 03 (Pa. Super. 1991) (emphasis original). [Appellant’s] claims fail under both prongs. For the first prong, [Appellant] never stated during his trial testimony that he was aware that the victim atta cked anyone prior to the instant murder. Further, nothing indicates that [Appellant] was afraid of the victim. [Appellant] testified that he stayed over the victim's house roughly two hundred times before the murder. He also testified that he never had a p roblem with the vic tim, that the victim never injured, hurt, or attacked him before, and that theJ

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victim was a good friend . N.T., 6/21/2012 at 141. [ 9 ] The second McClain prong is inapplicable as [Appellant] fails to assert that the victim was convicted for any of the alleged unwanted sexual ad vances claimed by the aforesaid witnesses. Because the alleged testimony from these five witnesses is irrelevant and would be inadmissible at trial, counsel cannot be deem [ed] ineffective for failing to call them [.] [Appellant] next claims that counsel was ineffective for failing to call his mother, Linda Armstrong, to testify at trial. The [Appellant’s] mother would have testified that she was on the phone with [Appellant] right before the murder and heard the victim say to [Appellant], "you're mine now, oh yeah, you're mine now." Presumably, this testimony would have helped establish that [Appellant] acted in self

- defense. This claim is without merit as [Appellant] cannot demonstrate prejudice. Even if, arguendo , Lin da Armstrong's testimony were admissible to show that [Appellant] acted in self

defense, [Appellant] cannot escape the fact that he strangled the victim to death. The medical examiner testified that after thirty seconds, a person being strangled l oses cons ciousness; to cause death, the strangulation must last two to five minutes . N.T., 6/20/2012 at 96

- 97. If [Appella n t] had initially acted in self

defense, his use of excessive force

- strangling the victim past the point of unconsciousness

- negated any self

- de fense claim and demonstrated his specific intent to kill. See Commonwealth v Harris , 703 A.2d 441 (Pa. 1997) (when the defendant's first shot disabled the victim, the next five shots to the victim were excessive force); see Commonwealth v Tilley , 595 A.2d 575 (Pa. 1991) (after the first two shots paralyzed the victim, the third shot to his face was excessive force). As such, no relief is due. [Appellant] also claims that counsel failed to call Eric Tolbert as a witness. Tolbert would hav e testified that [Ap pellant] had planned to move out of the victim's home before the murder. [Appellant] would have offered this testimony to counter a Commonwealth theory that a possible motive for the murder was that the victim had planned to evict [Appellant][.] Tolbert's testimony, however, would be inadmissible hearsay. Furthermore, [Appellant] testified at trial, and never mentioned

_________________ __________ ______ ____ _______ 9 Indeed, Appellant stressed that in all the time he had known Mr. Williams, who was raising a young teenager, “nothing like this had ever happened,” and he agreed he had “never had any problems at all with him: or ever knew him to act in a similar way.” N .T. Trial, 6/21/12 at 172

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any plans to move out. For these reasons, this issue warrants no relief. [Appellant] claims that trial counsel was ineffective for not calling Dr. Michals and Dr. Manion, both psychiatrists, as witnesses. 3 [Appellant] avers that the psychiatrists would have testified to his state of mind at the time of the murder, in that, after an alleged sexual assault by the victim, [Appellant] ei ther acted in a heat of passion (sufficient to reduce the murder to voluntary manslaughter), in self

- defense, or did not have the requisite mens rea . This claim is meritless. As the Commonwealth correctly points out, there is no scientific component to the se reports
- the reports are merely based on what [Appella n t] told the psychiatrists. Moreover, [Appellant] never asserted at trial that he had acted under a heat of passion; instead, he claimed that he accidently strangled the victim. N.T., 6/21/2012 132

- 33

. Lastly, these reports would not rebut [Appellant’s] use of excessive force in strangling the victim to death. See Harris and Tilley , supra [.]

____ 3 Dr. Manion interviewed [Appellant] on June 1, 2012[;] the date of Dr. Michaels’ interview is unknown. Order and Opinion, filed October 12, 2017, at 4

- 8 (emphasis in original)

. Upon our review, we have no need to expand upon the PCRA court’s analysis in finding this claim lacks merit , and we rely upon it in disposing of Appellant’s third issue. Appellant next posits trial counsel was ineffective for failing to request both an involuntary manslaughter jury instruction and a sudden provocation
instruction. However, a revi e w of the record reveals trial counsel did request an involuntary manslaugh ter instruction, and the trial court refused that request : Defense Counsel: I would ask for voluntary manslaughter as to justification, mistaken self

- defense. I would ask for self

- defense and I think what goes with that is the voluntary part ofJ

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manslaugh ter which is imperfect self

- defense or mistaken self

defense. And I would also ask, Your Honor, for involuntary manslaughter. And I have the jury instruction with me. There’s also some case law on point that talks about a fight and somebody dying as a r esult of the fight. N.T. Trial, 6/21/12, at 186 ; N.T. Hearing, 2/21/17, at 18

. Although counsel did not ask the trial court to provide the jury with a specific voluntary manslaught er (sudden and intense passion) instruction, the trial court st ated on the record it had contemplated so instructing the j u ry, but found no support for it in the trial evidence. N.T. T r ial, 6/22/12, at 5. The PCRA court reiterated that “[e] ven if counsel had made the request, it would have been denied.” N.T. Hearin g, 2/21/17, at 19. Thus, Appellant has failed to establish trial counsel ’s ineffectiveness on these grounds. Finally, Appellant contends the cumulative effect of the aforementioned alleged errors rendered his trial “fundamentally unfair.” Ap pellant’s Brief at
95. The Pennsylvania Supreme Court has determined that: no number of claims which fail on their merits may collectively warrant relief

. Commonwealth v. Spotz , 610 Pa. 17, 18 A.3d 244, 320

– 21 (2011). However, “[w]hen the failure of individual claims is grounded in lack of prejudice, then the cumulative prejudice from those individual claims may properly be assessed.” Id

. at 321. Commonwealth v. Wholaver , ___ P a. ____, 177 A.3d 136, 180 ( 2018)

. As we determined above, n one of Appellant's issues entitle him to relief

. We have disposed of Appellant's issues in a number of ways, including waiver, lack of merit and Appellant's failure to carry his burden of persuasion on appeal. To the extent that we have reject ed some of Appellant's issues basedJ

- S41003

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upon a prejudice analysis, we also find that collective prejudice is lacking and, thus, deny relief on this last issue. Id

. Order Affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/30/18