J-S74011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHARLES ALEXANDER,

Appellant No. 2849 EDA 2013

Appeal from the PCRA Order Entered September 11, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1000871-1998

BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 21, 2015

Appellant, Charles Alexander, appeals from the order entered 

September 11, 2013, denying his first post-conviction relief petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–

9546. Appellant raises multiple claims alleging the ineffective assistance of 

trial and appellate counsel and, relatedly, that the PCRA court erred in 

dismissing his PCRA petition without an evidentiary hearing. After careful 

review, we affirm.

The PCRA Court summarized the facts underlying Appellant’s 

conviction for first degree murder and related offenses as follows:

In July, 1997, a dispute over drug territory between Appellant's 

codefendant, Kareem Morefield, and Decedent, Benjamin 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Singleton, escalated to gunfire that ultimately led to Appellant's 

contract killing of ... [D]ecedent on April 20, 1998 for the sum of 

two thousand dollars ($2,000). Decedent and Morefield were 

competing drug dealers with a history of animosity and violence. 

Morefield and his companions, Darryl Booker and Greg Robinson, 

were selling drugs from a house on the 2300 block of Beechwood 

Street, Philadelphia, PA. Morefield believed that Decedent, who 

sold drugs at a nearby intersection, had designs on taking over 

drug sales in the area. On July 22, 1997, Morefield met with 

Decedent on the corner near Decedent's mother's home on the 

400 block of East Collum Street, Philadelphia, PA. A 

conversation ensued concerning threats made to Decedent by 

Morefield's associates, and concerning the rumors that the victim 

intended to take over drug trafficking. There was no resolution 

of the dispute and the two left the scene, Morefield entering the 

nearby home of one of his associate's mother, and Decedent 

walking around the next corner. Decedent's sister was observing 

from her front door and she testified that Morefield and Booker, 

carrying firearms[,] followed Decedent. She then heard 

gunshots [and] observed Decedent run[ning] back to the house 

screaming that he had been shot and that Morefield shot him. 

Decedent was shot in the leg and abdomen and was taken to the 

hospital[,] requiring extensive surgery and several months of 

treatment. Decedent was later released from the hospital and 

Morefield told Booker that he would finish the job he started; 

further stating that he wanted Decedent dead. 

On April 20, 1998, [at] approximately 8:00 PM, Morefield 

and his associates were selling drugs from a house near 18th and 

Cumberland Streets when Decedent and Appellant came in, 

ostensibly looking for a mutual friend. Shortly thereafter, 

Lamont Hill, who lived nearby[,] testified that he was in his 

bedroom and heard multiple gunshots from the street below. 

When he looked out of his window he observed two men 

running, enter into Appellant's gold Hyundai Excel, and the men 

fled. One of the males was carrying a gun. Hill went outside 

and found Decedent lying face down in the street in a pool of 

blood. Decedent had been shot nine times with nine millimeter 

bullets.

Robert Herring, Decedent's friend, testified that after the 

shooting Morefield warned him to keep quiet about the shooting. 

Morefield also confided to Darryl Booker that he paid the shooter 

two thousand dollars ($2,000) to kill Decedent. In his 

conversation with Booker, Morefield accurately described the 
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events of the shooting and the scene of the crime. Morefield 

further remarked to Booker that he paid half of the shooter[’]s 

bail in connection with this case.

PCRA Court Opinion (PCO), 2/4/14, 2-4 (internal citations and footnotes 

omitted). 

Appellant’s first trial, a non-jury proceeding before the Honorable 

William J. Mazzola, began on May 13, 2003. Before the trial concluded, 

Judge Mazzola became ill, resulting in a three-month postponement. When 

Judge Mazzola returned on September 8, 2003, he declared a mistrial, sua 

sponte, due to his health problems. A second trial began on January 26, 

2004, before the Honorable Renee Cardwell Hughes, at which Appellant 

elected to be tried by a jury. Appellant’s second trial was held jointly with 

codefendant Morefield.1 

On February 4, 2004, the jury convicted Appellant (and Morefield) of 

first degree murder and conspiracy. Additionally, the jury convicted 

Appellant of possessing an instrument of crime. On that same day, the trial 

court sentenced Appellant to a mandatory term of life imprisonment for first 

degree murder, and no further penalty as to the remaining counts. 

Appellant filed a direct appeal, but this Court found all of his appellate 

claims waived after he failed to raise them in his Pa.R.A.P. 1925(b) 

statement. See Commonwealth v. Alexander, 897 A.2d 513 (Pa. Super. 

____________________________________________

1 Hereinafter, references to Appellant’s “trial” refer specifically to his second 

trial, and references to “the trial court” refer specifically to Judge Hughes, 

unless otherwise noted. 
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2006) (unpublished memorandum). Appellant subsequently filed a 

successful PCRA petition seeking reinstatement of his direct appellate rights 

nunc pro tunc. In his second direct appeal, Appellant presented a single 

question for our review. This Court rejected that claim on its merits, 

affirmed Appellant’s judgment of sentence, and our Supreme Court 

subsequently rejected his petition for allowance of appeal. See 

Commonwealth v. Alexander, 981 A.2d 910 (Pa. Super. 2010) 

(unpublished memorandum), appeal denied, 992 A.2d 885 (Pa. 2010).

On March 21, 2011, Appellant filed a timely PCRA petition.2 Counsel 

was appointed, and Appellant then filed a counseled, amended PCRA petition 

on October 17, 2012 (hereinafter, “the Petition”). The Commonwealth 

subsequently filed a motion to dismiss the Petition without a hearing, and 

Appellant filed a timely response. The PCRA court issued a Pa.R.Crim.P. 907 

notice of its intent to dismiss the Petition without a hearing on July 16, 

2013. Following Appellant’s timely response on August 5, 2013, the PCRA 

court entered an order dismissing the Petition on September 11, 2013. On 

October 7, 2013, Appellant filed a timely notice of appeal from that order, 

and filed a timely Pa.R.A.P. 1925(b) statement on November 6, 2013. The 

PCRA court issued its Rule 1925(a) opinion on February 4, 2014. 

Appellant now presents the following questions for our review:

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2 This was Appellant’s second PCRA petition, but his first following the 

reinstatement of his direct appellate rights. 
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I. Were [both] trial counsel ineffective for failing to object to 

the declaration of a mistrial at Petitioner's first trial and for 

failing to object to the second trial as a violation of the 

federal and state constitutional protections against double 

jeopardy?

II. Did trial counsel render ineffective assistance by failing to 

make the correct and proper objections to the 

constitutionally insufficient redaction of Darryl Booker's 

prior recorded testimony and of the statements by nontestifying co[]defendant Morefield contained therein, and 

to the highly prejudicial instructions by the Court and 

argument by the prosecution related thereto? 

III. Was trial counsel ineffective for failing to interview or call 

as a witness Gregory Robinson, who would have testified 

that the conversation between himself, Booker and 

Petitioner's co[]defendant Morefield — as described in 

Booker's prior recorded testimony — never took place? 

IV. Was trial counsel ineffective for failing to make the proper 

objections to the admission of evidence concerning an 

assault upon the witness Robert Herring and the witness's 

belief that Petitioner procured it, where the evidence was 

insufficient to tie Petitioner to the occurrence, where the 

witness's beliefs were irrelevant given that he in fact 

testified favorably to the Commonwealth, and where the 

Commonwealth blatantly flaunted the Trial Court's in 

limine ruling setting limits upon said evidence? 

V. Was trial counsel also ineffective for failing to request an 

appropriate cautionary instruction in light of the Trial 

Court's in limine ruling restricting the evidence concerning 

the assault to its relevance for Herring's state of mind?

VI. Was trial counsel ineffective for failing to use readily 

available impeachment evidence in his cross examination 

of Robert Herring and Carlton Gerald? 

VII. Was trial counsel ineffective for failing to make the correct 

objections as bases for his motion for mistrial following the 

prosecutor's inflammatory closing argument to the jury? 

VIII. Did direct appeal counsel render[] ineffective assistance by 

failing to raise the Trial Court's error in permitting the use 

of Darryl Booker's prior recorded testimony, where the 
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Commonwealth failed to make a good faith effort to find 

him?

IX. For purposes of evaluating prejudice, must a court 

consider the cumulative effects of the various 

constitutional errors demonstrated?

X. Did the Court below err[] by failing to afford Petitioner an 

evidentiary hearing?

Appellant’s Brief, at 2-4. 

Here, Appellant’s PCRA claims were denied without a hearing pursuant 

to Pa.R.Crim.P. 907. Our standard of review for this matter is well-settled:

In reviewing the propriety of a PCRA court's order dismissing a 

PCRA petition, we are limited to determining whether the PCRA 

court's findings are supported by the record and whether the 

order in question is free of legal error. Commonwealth v. 

Ragan, 592 Pa. 217, 220, 923 A.2d 1169, 1170 (2007). The 

PCRA court's findings will not be disturbed unless there is no 

support for the findings in the certified record. Commonwealth 

v. Spencer, 892 A.2d 840, 841 (Pa. Super. 2006) (citation 

omitted). Moreover, “[t]here is no absolute right to an 

evidentiary hearing on a PCRA petition, and if the PCRA court 

can determine from the record that no genuine issues of material 

fact exist, then a hearing is not necessary.” Commonwealth v. 

Jones, 942 A.2d 903, 906 (Pa. Super. 2008), appeal denied, 

956 A.2d 433 (Pa. 2008) (citing Commonwealth v. Barbosa, 

819 A.2d 81 (Pa. Super. 2003)); Pa.R.Crim.P. 907(2). A

reviewing court must examine the issues raised in the PCRA 

petition in light of the record in order to determine whether the 

PCRA court erred in concluding that there were no genuine 

issues of material fact and in denying relief without an 

evidentiary hearing. Commonwealth v. Jordan, 772 A.2d 

1011, 1014 (Pa. Super. 2001) (citation omitted).

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

Appellant asserts multiple claims of the ineffective assistance of 

counsel (IAC) that occurred during various stages of his trial and direct 

appeal. 
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Our standard of review when faced with a claim of ineffective 

assistance of counsel is well settled. First, we note that counsel 

is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on [the] appellant. Commonwealth v. 

Thomas, 783 A.2d 328, 332 (Pa. Super. 2001) (citation 

omitted). In order to prevail on a claim of ineffective assistance 

of counsel, a petitioner must show, by a preponderance of the 

evidence, ineffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place. Commonwealth v. 

Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007). A petitioner 

must show (1) that the underlying claim has merit; (2) counsel 

had no reasonable strategic basis for his or her action or 

inaction; and (3) but for the errors or omissions of counsel, 

there is a reasonable probability that the outcome of the 

proceedings would have been different. Id. (citation omitted). 

The failure to prove any one of the three prongs results in the 

failure of petitioner's claim.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). 

I.

Appellant’s first claim concerns the mistrial declared by Judge Mazzola 

during Appellant’s first trial. Appellant asserts that his trial counsel during 

that first trial was ineffective for failing to object to Judge Mazzola’s 

declaration of a mistrial. Additionally, he claims that his attorney during his 

second trial was ineffective for failing to object to the second trial as a 

violation of Appellant’s state and federal double jeopardy rights. Both of 

these issues turn on the question of whether Judge Mazzola’s declaration of 

a mistrial was a manifest necessity. 

It is within the trial judge's discretion to declare a mistrial, 

and, absent an abuse of that discretion, no reversal of its 

exercise will result. Nonetheless, a judge may declare a mistrial 

sua sponte only when manifestly necessary or where the ends of 

public justice would otherwise be defeated. Where there is 
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“manifest necessity” for a trial judge to declare a mistrial sua 

sponte, neither the Fifth Amendment to the United States 

Constitution nor Article I, § 10 of the Pennsylvania Constitution 

will bar retrial. However, any doubt about the manifest 

necessity of declaring a mistrial must be resolved in the 

defendant's favor. 

Reviewing courts use no mechanical formula in 

determining whether a trial court had a manifest need to declare 

a mistrial. Rather, “...varying and often unique situations aris[e] 

during the course of a criminal trial...[and] the broad discretion 

reserved to the trial judge in such circumstances has been 

consistently reiterated....” Illinois v. Somerville, 410 U.S. 

458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). Far 

more conversant with the factors relevant to the determination 

than any reviewing court can possibly be, the trial judge, who is 

the foremost authority in his or her courtroom, is usually bestpositioned to determine the necessity of recusal in any individual 

case. This principle assumes great weight when the issue 

involves how the presentation of evidence or the conduct of 

parties affects a trial's fact-finder.

When judges doubt their own ability to adjudicate 

impartially, they should recuse themselves. Such an inability to 

be objective creates a manifest necessity for the declaration of a 

mistrial, particularly when a judge must exert the broad 

discretion that a bench trial demands. 

Commonwealth v. Leister, 712 A.2d 332, 334-35 (Pa. Super. 1998). 

Here, the PCRA court states that “Judge Mazzola indicated that he 

considered all other less drastic alternatives to mistrial, but that his illness 

and current medicine regimen, coupled with the passage of time that 

affected his recall of the evidence and witness credibility, demanded that a 

mistrial be declared.” PCO, at 5. Appellant avers that there was no 

manifest necessity requiring Judge Mazzola to declare a mistrial because 

neither Appellant nor his codefendant requested a mistrial, and Judge 

Mazzola’s impartiality had not been called into question. Furthermore, 
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Appellant argues that because the trial was substantially complete, Judge 

Mazzola should have waited to see if his memory was adequately refreshed 

by the notes of testimony, which had yet to be produced at the time he 

declared the mistrial. Appellant contends that his first trial counsel should 

have objected to the Court’s sua sponte declaration of a mistrial on any or 

all of these bases. 

We conclude that there could be no arguable merit to the proposed 

objections. Here, Judge Mazzola was presiding over a bench trial. As such, 

he was sitting in the place of a jury as the factfinder, and his recollection of 

the testimony and evidence presented before the delay in proceedings was 

of paramount concern affecting the fairness of the trial, regardless of his 

impartiality. Appellant’s arguments would be far more compelling if Judge 

Mazzola had been presiding over a jury trial because it would have been the 

jury’s recall of the evidence and testimony that would be at issue, not the 

judge’s. 

Furthermore, Appellant has not convinced us that the notes of 

testimony in these circumstances could have adequately refreshed Judge 

Mazzola’s memory so as to obviate the manifest necessity justifying the 

mistrial. Judge Mazzola’s recollection difficulties were not solely caused by 

the passage of time. He also stated that the nature of his illness, as well as 

the pharmaceuticals he was taking to treat it, had impaired his memory. 

Judge Mazzola was in the best position and, perhaps, the only position, to 
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adequately assess his ability to perform his duties in light of his illness and 

medicinal regime. 

As cited above, our review of the sua sponte declaration of a mistrial is 

not mechanistic, and the trial court is imparted with “broad discretion” to 

address the unique circumstances that may arise during the course of 

criminal trials. Id. at 335 (quoting Somerville). Although we acknowledge 

that “any doubt about the manifest necessity of declaring a mistrial must be 

resolved in the defendant's favor,” Appellant has not cited any controlling 

authority that would give us pause regarding whether there was a less 

drastic remedy available to deal with Judge Mazzola’s predicament. Id. 

Consequently, we ascertain no abuse of discretion in Judge Mazzola’s 

decision to declare a mistrial and, therefore, no arguable merit to any claim 

that an objection should have been lodged by counsel. Accordingly, we 

conclude that the PCRA court’s determination to dismiss this claim without a 

hearing was legally correct and supported by the record, because Judge 

Mazzola’s sua sponte declaration of a mistrial was a manifest necessity.

We also ascertain no prejudice resulting from subsequent defense 

counsel’s failure to object to Appellant’s second trial on double jeopardy 

grounds. See Commonwealth v. Diehl, 615 A.2d 690, 691 (Pa. 1992) 

(“Since Justice Story's 1824 opinion in United States v. Perez, 22 U.S. (9 

Wheat.) 579, 580, 6 L.Ed. 165 [(1824)], it has been well settled that the 

question whether under the Double Jeopardy Clause there can be a new trial 

after a mistrial has been declared without the defendant's request or consent 
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depends on where there is a manifest necessity for the mistrial, or the ends 

of public justice would otherwise be defeated.”). Thus, we conclude that the 

PCRA court’s dismissal of this claim is supported by the record and free of 

legal error. 

II.

Next, Appellant claims that his (second) trial attorney3 was ineffective 

for failing to adequately object to both the admission, and the accompanying 

cautionary instruction, of the prior recorded testimony of Darryl Booker 

(“Booker’s Recorded Testimony”). More specifically, Appellant contends 1) 

that Booker’s Recorded Testimony was completely inadmissible against 

Appellant under Bruton v. United States, 391 U.S. 123 (1968); 2) the 

redaction of references to Appellant’s name in Booker’s Recorded Testimony 

as presented to the jury did not comply with the exception(s) to Bruton

provided by Richardson v. Marsh, 481 U.S. 200 (1987), and its progeny; 

3) although trial counsel objected to the admission of Booker’s Recorded 

Testimony, he was ineffective for not objecting to the inadequacy of the 

redaction; and 4) trial counsel was also ineffective for not objecting to the 

adequacy of the cautionary instruction issued by the trial court that 

accompanied the admission of the redacted version of Booker’s Recorded 

Testimony.

____________________________________________

3 This and all subsequent references to Appellant’s trial counsel refer 

exclusively to Appellant’s attorney during his second trial. 
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Booker testified at Morefield’s preliminary hearing. However, Booker 

was unavailable to testify at the time of Appellant’s joint trial with Morefield, 

and Appellant never had the opportunity to cross-examine Booker regarding 

that testimony. Booker’s Recorded Testimony concerned his account of a 

conversation he had with Morefield after the victim was killed. Morefield told 

Booker that he had hired Appellant to kill the victim in exchange for $2000. 

Morefield also told Booker several details about the killing that were unlikely 

to be known by anyone other than the perpetrators. 

Our Supreme Court summarized the applicable jurisprudence relating 

to the admissibility of a codefendant's confession that implicates a defendant 

at their joint trial in Commonwealth v. Brown, 925 A.2d 147 (Pa. 2007):

Included in the scope of the right guaranteed by the Sixth 

Amendment's Confrontation Clause is the right to cross-examine 

witnesses. Richardson, 481 U.S. at 206.... Generally, at a joint 

trial, a witness's testimony is not considered to be “ against” a 

defendant if an instruction is given to the jury to consider that 

evidence only against a co[]defendant. Id. The general 

presumption in the law is that juries will abide by such 

instructions. [Commonwealth v.] McCrae, 832 A.2d [1026,] 

1037 [(Pa. 2003)]; [Commonwealth v.] Travers, 768 A.2d 

[845,] 847 [(Pa. 2001)]. In Bruton, however, the U.S. Supreme 

Court recognized that there are some instances where “the risk 

that the jury will not, or cannot, follow instructions is so great, 

and the consequences of failure so vital to the defendant, that 

the practical and human limitations of the jury system cannot be 

ignored.” Bruton, 391 U.S. at 135.... The Bruton Court held 

that, if a nontestifying co[]defendant's confession directly and 

powerfully implicates the defendant in the crime, then an 

instruction to the jury to consider the evidence only against the 

co[]defendant is insufficient, essentially as a matter of law, to 

protect the defendant's confrontation rights. Id. at 135–37...; 

Gray [v. Maryland], 523 U.S. [185,] 192 [(1998)] (citing 

Richardson, 481 U.S. at 207...).
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Bruton, however, is not the last word from the Court 

concerning how to treat co[]defendant statements in joint trials. 

In Richardson v. Marsh, the Supreme Court held that the 

Confrontation Clause is not violated by the “admission of a nontestifying co[]defendant's confession with a proper limiting 

instruction when ... the confession is redacted to eliminate not 

only the defendant's name, but any reference to his or her 

existence.” 481 U.S. at 211.... This Court had previously 

approved of such a practice in the wake of Bruton. See 

Commonwealth v. Johnson, ... 378 A.2d 859, 860 ([Pa.] 

1977). We have also held that substituting the neutral phrase 

“the guy” ... for the name of the defendant is an appropriate 

manner of redaction under Bruton. Travers, 768 A.2d at 851.

Brown, 925 A.2d at 157.

As a threshold matter, we address the Commonwealth’s assertion that 

Bruton is not implicated by the admission of Booker’s Recorded Testimony. 

Clearly, Morefield’s statements to Booker were inculpatory with respect to 

both himself and Appellant. However, the Commonwealth argues:

Any finding of Bruton error necessarily also requires an initial 

determination that the Confrontation Clause applies, as 

determined by Crawford v. Washington, 541 U.S. 36 (2004), 

and subsequent decisions articulating the scope of the 

Confrontation Clause. Under Crawford, confrontation concerns 

arise only from testimonial hearsay, such as statements to police 

during questioning or actual testimony. Crawford[,] 541 U.S. 

at 51-52. Accord United States v. Berrios, 676 F.3d 118, 128 

(3d Cir. 2012) ("[B]ecause Bruton is no more than a by-product 

of the Confrontation Clause, the Court's holdings in Davis v. 

Washington, 547 U.S. 813 (2006), and Crawford ... likewise 

limit Bruton to testimonial statements.").

Commonwealth’s Brief, at 24. Although Berrios is not controlling authority, 

we find it highly persuasive in this instance, for the following reasons. 

Clearly, Booker’s Recorded Testimony, per se, does not implicate 

Bruton, because Booker was not a codefendant in Appellant’s trial. 
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However, Appellant correctly notes that in Bruton, the testimony at issue 

came from a postal worker who was not a defendant in the case, but who 

had testified as to the contents of Bruton’s codefendant’s confession. Thus, 

Appellant correctly argues that Booker’s status is irrelevant to our inquiry as 

to the applicability of Bruton to the hearsay statement contained within 

Booker’s Recorded Testimony.

Yet, Bruton itself is merely an application of the Confrontation 

Clause, Bruton, 391 U.S. at 137 (“Here the introduction of [Bruton’s 

codefendant’s] confession posed a substantial threat to [Bruton’s] right to 

confront the witnesses against him, and this is a hazard we cannot ignore.”), 

and Crawford effectively limited the application of the Confrontation Clause 

claims to the admission of “testimonial” evidence. However, the Crawford

court left “for another day any effort to spell out a comprehensive definition 

of ‘testimonial.’” Crawford, 541 U.S. at 68. After a series of cases 

addressing the contours of the Confrontation Clause in the wake of 

Crawford,

4

the Supreme Court appeared to have arrived at a working 

definition of “testimonial” in Michigan v. Bryant, 562 U.S. 344 (2011), but 

that definition was tailored to statements that were the product of a noncustodial police interrogation. However, just prior to Bryant, in Davis, a 

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4 See Davis v. Washington, 547 U.S. 813 (2006); Hammon v. Indiana, 

547 U.S. 813 (2006); and Whorton v. Bockting, 549 U.S. 406 (2007). 
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case also involving a police interrogation, the Supreme Court acknowledged 

that statements other than those produced by a police interrogation may be 

testimonial for Confrontation Clause purposes:

Our holding refers to interrogations because ... the statements in 

the cases presently before us are the products of 

interrogations—which in some circumstances tend to generate 

testimonial responses. This is not to imply, however, that 

statements made in the absence of any interrogation are 

necessarily nontestimonial.

Davis, 547 U.S. at 822 n. 1.

Our Supreme Court was confronted with the applicability of the 

Confrontation Clause in a case which did not involve a police or judicial 

interrogation in Commonwealth v. Allshouse, 36 A.3d 163, 167 (Pa. 

2012), cert. denied sub nom., Allshouse v. Pennsylvania, 133 S.Ct. 2336 

(2013) (“Allshouse II”).5 At issue in Allshouse II was whether a 

statement given by an injured minor to a Children and Youth Services 

(“CYS”) caseworker regarding Allshouse’s culpability, although admissible as 

an exception to the hearsay rule pursuant to the Tender Years Hearsay Act, 

42 Pa.C.S. § 5985.1, was nonetheless barred as violative of Allshouse’s 

Confrontation Clause rights. Our Supreme Court ultimately held that the 

statement was not testimonial. Applying the test espoused in Bryant, our 

Supreme Court considered whether the primary purpose of the 

____________________________________________

5

 Commonwealth v. Allshouse, 985 A.2d 847 (Pa. 2009) (“Allshouse 

I”), had been vacated and remanded to our Supreme Court in light of 

Bryant. 
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‘interrogation’ was to “to establish past events for use during a subsequent 

criminal prosecution.” Allshouse II, 36 A.3d at 180. Our Supreme Court 

considered all of the circumstances surrounding that interview and concluded 

that it was not. Therefore, the Confrontation Clause was held not to bar 

admission of the minor victim’s statement at Allshouse’s trial.6 

With these precedents in mind, we agree with the Commonwealth that 

the Third Circuit’s decision in Berrios accurately assesses that Bruton

claims only arise where the Confrontation Cause is implicated by the 

statement sought to be precluded by Bruton. See Berrios, supra; accord

United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009) (“Because it 

is premised on the Confrontation Clause, the Bruton rule, like the 

Confrontation Clause itself, does not apply to nontestimonial statements.”); 

United States v. Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009) (holding 

that Bruton does not apply to codefendant’s nontestimonial statements); 

United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir. 2008) (holding that 

a statement by a codefendant to his fellow inmate was not testimonial 

because he “would have had no reason to believe it would be used in a 

____________________________________________

6 Regarding another statement admitted under the tender years exception, 

one made by the minor victim to a doctor, our Supreme Court noted that 

consideration of the statement’s testimonial or nontestimonial nature under 

Bryant was more difficult. However, the Court avoided addressing the 

matter by concluding that the statement’s admission was harmless error 

because its content was merely cumulative of the victim’s statement to the 

CYS caseworker. 
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judicial proceeding[;]” thus, its admission did not violate either Crawford or 

Bruton). 

Confessions are usually testimonial statements within the meaning of 

Crawford because they are typically statements given to law enforcement 

or, albeit less frequently, before judicial officers. Arguably, a “confession” 

under the broadest possible definition of that term could include 

nontestimonial statements (such as “I confessed my guilt to my parents,” or 

“I confessed my sin to the preacher”). However, we do not believe that 

“confessions” of that nature were those contemplated in Bruton, wherein 

the at-issue statement was made under an interrogation while Bruton was in 

custody (even though the interrogator was not a law enforcement official). 

As Crawford, Davis, and Bryant imply, the types of confessions that are 

addressed by the Confrontation Clause are those that are made in 

anticipation of, or with the expectation of, future criminal litigation. These 

are qualities that are less likely to apply to confessions made outside the 

context of a criminal investigation or the judicial process, such as 

confessions made in confidence to a friend, family member, or during 

counseling with a religious or mental health professional. Confessions, 

within the meaning of the Confrontation Clause, must be understood to 

mean admissions of criminal culpability made in circumstances where the 

primary purpose of the admission, or the solicitation of that admission, is to 

establish past events for use during a subsequent criminal prosecution. 
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There is no evidence in this case that Morefield’s statement to Booker 

was a product of Booker’s ‘interrogation’ of Morefield. To the contrary, the 

record tends to support the opposite conclusion: Morefield made the 

statements to Booker under the impression that his admissions would be 

held in confidence by Booker. Indeed, none of the attendant circumstances 

present in this case suggest that Morefield intended his statements to 

establish past events for use during a subsequent criminal prosecution, or 

that Booker’s conversation with Morefield was undertaken by either party for 

that purpose. Accordingly, we conclude that Bruton did not apply to 

Morefield’s statements to Booker, because those statements were not 

testimonial and, therefore, did not fall under the purview of the 

Confrontation Clause. Although Booker’s Recorded Testimony itself fell 

within the purview of the Confrontation Clause (because Booker was not 

present to testify at trial and Appellant did not have an opportunity to crossexamine him), it did not fall under the purview of Bruton because Booker 

was not Appellant’s codefendant.

Consequently, we ascertain that the PCRA court’s dismissal of 

Appellant’s Bruton-related IAC claim was supported by the record and free 

of legal error. There could be no arguable merit to Appellant’s assertion that 

trial counsel was ineffective for failing to adequately object under Bruton, 

because the Bruton rule was inapplicable to the admission of Booker’s 

Recorded Testimony. Accordingly, we do not reach the question of whether 

Appellant’s trial counsel was ineffective for failing to adequately object to the 
J-S74011-14

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redactions of Booker’s Recorded Testimony, or to the trial court’s cautionary 

instruction regarding the redacted testimony, as both of those subsidiary 

claims are premised upon the applicability of Bruton. 

III.

Next, Appellant contends that trial counsel failed to interview or call 

Gregory Robinson to testify on Appellant’s behalf. Appellant maintains that 

Robinson would have testified that the conversation between Booker and 

Morefield, memorialized in Booker’s Recorded Testimony, never took place. 

Appellant argues that counsel’s failure in this regard clearly prejudiced him, 

because it was a foregone “opportunity to directly contradict the cold, prior 

testimony of such a witness, about a series of essentially hearsay 

admissions, with a live witness capable of directly denying that those 

admission had even been made[.]” Appellant’s Brief, at 40 (emphasis in 

original). 

Appellant presents two distinct claims: first, a failure to investigate 

Robinson as a potential witness; and second, the failure to call Robinson to 

the stand. However, in his brief, Appellant only discusses and cites legal 

authority pertaining to the second of these claims. Accordingly, we conclude 

that Appellant has waived any claim that trial counsel failed to interview or 

otherwise investigate Robinson as a potential witness and, thus, we confine 

our consideration to counsel’s failure to call Robinson as a defense witness. 

See Lackner v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006) (holding that 

“arguments which are not appropriately developed are waived”); 
J-S74011-14

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Commonwealth v. Figueroa, 859 A.2d 793, 800 (holding that the 

appellant waived a claim by failing “to cite to pertinent authority in 

developing his argument”). 

To assess whether trial counsel was ineffective for his failure to call 

Robinson as a witness, we apply the following standards:

To establish ineffectiveness for failure to call a witness, Appellant 

must establish that: (1) the witness existed; (2) the witness was 

available; (3) counsel was informed of the existence of the 

witness or counsel should otherwise have known him; (4) the 

witness was prepared to cooperate and testify for Appellant at 

trial; and (5) the absence of the testimony prejudiced Appellant 

so as to deny him a fair trial. A defendant must establish 

prejudice by demonstrating that he was denied a fair trial 

because of the absence of the testimony of the proposed 

witness.

Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003) (quoting 

Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002)). 

The PCRA Court found Appellant’s claim “waived and without merit.” 

PCO, at 6. The Court explained:

At trial, the court conducted a colloquy with Appellant in which 

he was asked if he desired to present any witnesses other than 

the one witness who had already presented testimony on his 

behalf. Appellant responded that he did not. Appellant further 

stated that he did not desire counsel to do anything further in 

this regard. Appellant cannot now claim that trial counsel 

rendered ineffective assistance for failing to investigate and call 

an additional witness, Gregory Robinson. Error was not 

committed.

Id. at 6. 

The court’s analysis is legally deficient and unsupported by any 

authorities. Appellant’s ‘desire’ to present a witness to refute Booker’s 
J-S74011-14

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Recorded Testimony is not a dispositive factor in determining whether trial 

counsel was ineffective for failing to call Robinson as a witness. Robinson 

was present during the conversation between Booker and Morefield. He 

was, therefore, a potential witness who could have undermined the 

credibility of Booker’s Recorded Testimony. Appellant’s failure to recognize 

the potential of Robinson’s testimony during the court’s colloquy is simply 

irrelevant to the question of whether trial counsel was ineffective for failing 

to call him. There is no evidence in the record of this case that Robinson’s 

existence was unknown to trial counsel, or that responsibility for counsel’s 

lack of knowledge regarding Robinson was due to Appellant’s failure to 

disclose Robinson’s existence.

Nevertheless, we may affirm the PCRA court’s denial of Appellant’s 

petition “on any legal ground, regardless of the basis upon which the [PCRA] 

court relied.” Commonwealth v. Auchmuty, 799 A.2d 823, 826 n.2 (Pa. 

Super. 2002). Here, we agree with the Commonwealth that Appellant’s trial 

counsel cannot be ineffective for failing to refute Booker’s Recorded 

Testimony because the jury was instructed not to consider that evidence 

against Appellant. 

“The presumption in our law is that the jury follows instructions.” 

Commonwealth v. Travaglia, 661 A.2d 352, 361 (Pa. 1995) (citing 

Commonwealth v. Stoltzfus, 337 A.2d 873, 879 (Pa. 1975)). Prior to the 

introduction of Booker’s Recorded Testimony, the trial court issued a lengthy 

cautionary instruction, which read, in part, as follows:
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This evidence is to be admissible only against Kareem 

Morefield. It is to be considered solely for the purpose of 

evidence being offered in this proceeding of the Commonwealth 

versus Kareem Morefield. 

The prior recorded testimony is not admissible in the case 

of the Commonwealth versus Charles Alexander, and is not 

under any circumstances to be considered as evidence in the 

case of the Commonwealth versus Charles Alexander. 

N.T., 1/30/04, at 85. 

Given our presumption that the jury followed the trial court’s 

instructions, we are constrained to hold that Appellant could not have been 

prejudiced by the absence of Robinson’s testimony. Appellant could only 

have been prejudiced by the absence of Robinson’s testimony if Booker’s 

Recorded Testimony had been admitted against him. Consequently, we 

conclude that no prejudice resulted from trial counsel’s failure to call 

Robinson as a witness and, therefore, that he was not denied a fair trial on 

that basis.

IV.

Next, Appellant complains that trial counsel was ineffective for failing 

to object, and/or adequately object, to the admission of evidence concerning 

an assault of a witness, Robert Herring, who had testified against Appellant 

and his codefendant. The trial court permitted Herring to testify that he 

believed that the assault had been motivated by his upcoming testimony 

against Appellant and Morefield. However, the trial court did not permit the 

admission of hearsay evidence upon which Herring’s belief was purportedly 

based. Appellant argues that the trial court’s decision to exclude that 
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hearsay evidence was undermined when the prosecutor allegedly elicited 

from Herring the source of the hearsay statement as well as its substance. 

Appellant also complains that trial counsel, who did object on hearsay 

grounds, was ineffective for not also objecting on relevancy grounds. 

Appellant directs our attention to the following passages from the 

direct examination of Herring:

Q [A.D.A. Malone]. Okay. The people who assaulted you — and 

you can't talk about what they said — but did they say anything 

to you? 

A [Herring]. Yes.

Q. Based on what they said to you before, during or after the 

assault, why did you believe that you were assaulted? 

A. For testifying in this case.

N.T., 1/28/04, at 165. 

Q. Why did you write two letters to Charles Alexander? 

A. Because I got word sent after I was assaulted that they 

thought that I was going to really tell; beings [sic] though that 

they assaulted me as well.

So, you know, the barber that cuts our hair is on the same 

block that he was on, we was on two different blocks. The 

barber will come over and cut our hair. So, the barber told me, 

you know —

MR. SANTAGUIDA [Defense Counsel for Morefield]: Objection.

THE COURT: Sustained ....

BY MR. MALONE:

Q. Without talking about the exact words the barber used, when 

you had a conversation with the barber, what was you[r] 

intention? 

A. He told me to write a letter.
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Q. Listen to what I'm saying. Don't say what the barber actually 

said to you —

A. Uh-huh.

Q. — but after you had that conversation, what was going 

through your mind? What were you planning on doing? 

A. Writing — getting a letter to Charles Alexander to let him 

know that everything was going to be cool. And, that once I 

come to Court that I wasn't going to testify against him.

Id. at 169-70. 

Initially, we reject Appellant’s representation of the record in this case. 

We do not read the above passage as demonstrating that the 

Commonwealth intentionally elicited the excluded statements. During the 

direct examination of Herring, but prior to the above testimony, there was 

an objection lodged by Appellant’s trial counsel when the prosecutor began 

to broach the subject of what occurred just prior to when Herring was 

assaulted in prison. Id. at 138. A discussion ensued in the judge’s 

chambers. Id. at 138-63. The statement that the prosecutor wished to 

elicit from Herring was that, just prior to the assault, the three assailants 

asked Herring, “Do you know Boo? You don’t know him? Oh, we heard you 

do.” Id. at 140.7 The trial court determined that these statements were 

inadmissible hearsay. There is nothing within the above-quoted portions of 

Herring’s testimony that demonstrates that the prosecutor was attempting 

to circumvent the court’s ruling. To the contrary, it appears that the 

____________________________________________

7

“Boo” was a nickname or alias used by Morefield. 
J-S74011-14

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prosecutor was making every effort to steer Herring away from revealing the 

excluded statement, as well as from any similar statement by the prison 

barber. Thus, Appellant’s claim that trial counsel should have done more to 

object to the prosecutor’s alleged circumventing of the trial court’s ruling is 

without merit. 

Appellant also argues that trial counsel was ineffective for only 

objecting on hearsay grounds to this portion of Herring’s testimony. He 

contends that counsel should have also objected on relevancy grounds. 

Herring’s belief that Appellant was responsible for the assault was admitted 

as probative of Herring’s state of mind when he wrote two letters to 

Appellant. In those letters, Herring indicated to Appellant that he did not 

intend to testify against him. Because those letters were favorable to 

Appellant as impeachment evidence concerning Herring’s trial testimony, the 

Commonwealth wanted to demonstrate that Herring had an alternative 

purpose for writing them other than the truth of their contents. Under this 

theory, the trial court admitted evidence of Herring’s belief that he had been 

assaulted because of his planned testimony in this case. Appellant argues 

that any reference to the assault should have been excluded as irrelevant, 

and that trial counsel should have objected on that basis. He believes that 

the only relevant evidence of Herring’s state of mind was whether the 

Commonwealth had threatened Herring in order to convince him to ‘flip’ in 

favor of the Commonwealth, as Herring’s prior statements and testimony 

had been favorable to Appellant. 
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We disagree. The PCRA court found the evidence admitted by the trial 

court to be both relevant and admissible. Appellant fails to cite to any

authority that would suggest that, when admitting state of mind evidence to 

explain such a ‘flip,’ the only relevant evidence is that pertaining to how the 

party who ultimately secured favorable testimony from a witness may have 

influenced that witness. Indeed, such a proposition is unreasonable and 

self-serving. Appellant’s trial counsel attacked the credibility of Herring, 

particularly with respect to his motivations for writing the two letters to 

Appellant. N.T., 1/27/04, at 108-09. Appellant can hardly complain that his 

counsel should have objected to the admission of state of mind evidence on 

relevancy grounds, where the issue of Herring’s motivations for writing the 

letters to Appellant and testifying for the Commonwealth was brought into 

play by the defense’s strategy. 

In Commonwealth v. Carr, 259 A.2d 165, 167 (Pa. 1969), our 

Supreme Court acknowledged that “[t]hreats by third persons against public 

officers or witnesses are not relevant unless it is shown that the defendant is 

linked in some way to the making of the threats.” However, that rule 

concerns the use of such threats as substantive evidence of guilt; threats 

may be admissible for another purpose, such as to explain the motivation for 

a prior inconsistent statement. Id. Here, the defense brought into question 

Herring’s prior inconsistent statement, rendering relevant the threats that 

induced that statement. Thus, Appellant’s trial counsel could not have 

objected on relevancy grounds, as there is no arguable merit to that claim. 
J-S74011-14

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Accordingly, we conclude that that the PCRA court’s order denying the 

claim(s) pertaining to this aspect of Herring’s testimony was supported by 

the record and free of legal error. 

V.

Appellant’s fifth claim also concerns Herring’s testimony regarding his

belief that the assault had been prompted in anticipation of his upcoming 

testimony against Appellant and Morefield. Appellant argues that trial 

counsel was ineffective for failing to request a cautionary instruction 

indicating that Herring’s testimony regarding the assault was limited in 

purpose to establishing his state of mind, and that it should not be 

considered by the jury as substantive evidence of Appellant’s consciousness 

of guilt. 

“Evidence of a defendant's prior bad acts is generally inadmissible, and 

where such evidence is admitted, a defendant is entitled to a jury instruction 

that the evidence is admissible only for a limited purpose.” 

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002). However, 

“[w]here evidence of a defendant's prior bad acts is merely a fleeting or 

vague reference, ... trial counsel might reasonably decline to object or 

request a limiting instruction to avoid drawing attention to a reference that 

might have gone relatively unnoticed by the jury.” Id. at 561-62. 

Because the PCRA court did not hold an evidentiary hearing, we cannot 

ascertain whether Appellant’s trial counsel had a reasonable basis for not 

requesting such an instruction. The PCRA court concluded that there was no 
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merit to this claim, reasoning that while there was evidence of an assault, as 

well as Herring’s belief that the assault was related to his involvement in this 

case, there was no evidence admitted that Appellant had ordered or 

participated in the assault. 

We cannot agree with the PCRA court regarding the arguable merit of 

this IAC claim. By permitting evidence of the assault, and Herring’s belief of 

its cause, the trial court risked allowing the jury to infer that Herring had 

been assaulted at the behest of Appellant or Morefield. Consequently, a 

cautionary instruction should have been requested by trial counsel and 

granted by the trial court. Nevertheless, we agree with the Commonwealth 

that, despite trial counsel’s failure in this regard, his ineffectiveness was not 

sufficiently prejudicial so as to warrant relief because there is no reasonable 

probability that the outcome of Appellant’s trial would have been different 

had trial counsel requested and been granted a limiting instruction. 

First, as noted in our discussion of Appellant’s preceding claim, the 

door to evidence concerning Herring’s state of mind in making prior 

inconsistent statements was opened by the defense. Second, substantive 

evidence of Appellant’s consciousness of guilt had already been properly 

admitted without objection. Herring had already testified that Appellant had 

threatened to harm him if he did not keep his mouth closed regarding the 

murder. N.T., 1/28/04, at 106. Thus, even if the jury made the inference 

that Appellant and/or Morefield were culpable for the assault, such 

inferential evidence would have been cumulative of similar evidence that 
J-S74011-14

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was properly admitted. Third, the jury did not hear any direct evidence 

concerning the assault on Herring that would indicate that Appellant or his 

codefendant had ordered it. Given these circumstances, we conclude that it 

would be extremely unlikely that the jury would have reached a different 

result had they been given a cautionary instruction accompanying Herring’s 

testimony regarding his assault. Accordingly, we conclude that Appellant is 

not entitled to relief on this claim.

VI.

Next, Appellant claims trial counsel was ineffective for not utilizing 

available impeachment material during the cross-examination of Herring and 

another witness, Carlton Gerald. Specifically, Appellant complains that trial 

counsel failed to use impeachment material used by Appellant’s previous 

attorney during the first trial, and that the cross-examination of both 

witnesses was markedly less effective as a result. Appellant argues that trial 

counsel was ineffective for not impeaching Herring’s testimony with evidence 

of his three attempted murder charges, and for not impeaching Gerald’s 

testimony with his armed robbery and drug convictions. 

Regarding Herring, the PCRA court found that the attempted murder 

charges were no longer pending against him at Appellant’s second trial, as 

they had been withdrawn on February 28, 2003. Thus, the court concluded 

that “[e]vidence of those charges was therefore inadmissible and could not 

be used to impeach Herring. See[] Commonwealth v. Chmiel, 889 A.2d 

501 (Pa. 2005).” PCO, at 8. We agree.
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In Chmiel, our Supreme Court reaffirmed that “the veracity of a 

witness may not be impeached by prior arrests which have not led to 

convictions.” Chmiel, 889 A.2d at 534. Appellant argues, however, that 

this same evidence was permitted during his first trial because “the 

Commonwealth was free to reinstitute the charges at any time.” Appellant’s 

Brief at 47. This argument is unpersuasive, as it is not accompanied by 

citation to any controlling authority suggesting that such evidence is 

admissible. Moreover, it is not at all clear that the first trial court was 

correct in permitting the admission of such evidence; indeed, it appears that 

such impeachment evidence should not have been admitted, as the charges 

in question were withdrawn before the first trial. It is illogical to suggest 

that otherwise inadmissible evidence should be permitted at a second trial 

simply because such evidence was erroneously admitted at the first. 

Regarding Gerald, the PCRA court determined that Appellant was not 

prejudiced by counsel’s failure to impeach. The court explains:

Gerald testified at the first trial and gave police a signed 

statement wherein he stated that Morefield offered two thousand 

dollars ($2,000) for ... killing [the Decedent]. He also stated that 

Booker, Robinson, and Morefield sold drugs together ... and that 

Appellant usually carried a 9 mm pistol and .45 caliber gun. 

When Gerald testified at the second trial he recanted his prior 

statements and testimony. He testified that he made up the 

information or that it was a rumor he heard.

PCO, at 8. 

Thus, the PCRA court concluded that Appellant could not demonstrate 

prejudice where the testimony he contends should have been impeached by 
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trial counsel “was actually helpful to the defense....” Id. We agree. 

Furthermore, Appellant fails to offer any argument addressing the specific 

basis on which this claim was rejected by the PCRA court. Accordingly, we 

conclude that the PCRA court’s dismissal of these impeachment-based IAC 

claims was supported by the record and free of legal error. 

VII.

In Appellant’s seventh claim, he asserts that trial counsel was 

ineffective for failing to adequately object to comments made by the 

prosecutor during the Commonwealth’s closing argument, and that if the 

appropriate objections had been made, a mistrial would have been granted. 

Appellant alleges that the prosecutor “blatantly attempted to divert the jury 

from proper consideration of the evidence as to who in fact committed the 

murder, and invited its decision based instead on raw emotion and the 

nature of the killing.” Appellant’s Brief, at 50. In support of this claim, 

Appellant directs our attention to numerous portions of the prosecutor’s 

closing remarks. He also claims that cumulative prejudice of these remarks 

undermined his right to a fair trial. We disagree. 

The Commonwealth is entitled to comment during closing 

arguments on matters that might otherwise be objectionable or 

even outright misconduct, where such comments constitute fair 

response to matters raised by the defense, or where they are 

merely responsive to actual evidence admitted during a trial. 

See Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243, 

249 (2000) (plurality opinion) (“A remark by a prosecutor, 

otherwise improper, may be appropriate if it is in fair response to 

the argument and comment of defense counsel.”) (citing United 

States v. Robinson, 485 U.S. 25, 31, 108 S.Ct. 864, 99 
J-S74011-14

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L.Ed.2d 23 (1988)); Commonwealth v. Marrero, 546 Pa. 596, 

687 A.2d 1102, 1109 (1996). Furthermore, “prosecutorial 

misconduct will not be found where comments were based on 

the evidence or proper inferences therefrom or were only 

oratorical flair.” Commonwealth v. Jones, 542 Pa. 464, 668 

A.2d 491, 514 (1995).

Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012).

We have reviewed all of the remarks highlighted by Appellant, and we 

conclude, like the PCRA court, that there was no prosecutorial misconduct 

during the Commonwealth’s closing argument. For instance, regarding 

Appellant’s assertion that the prosecutor’s comments concerning a “higher 

power” were improper, we note that defense counsel arguably breached the 

topic during his closing argument by contending that only a “higher judge” 

knew the truth of what happened. N.T., 2/3/04, at 191-92. Nevertheless, 

Appellant contends the prosecutor “perverted” defense counsel’s remarks. 

Yet, read as a whole, there was nothing improper about the prosecutor’s 

comments, regardless of whether they constituted fair response to the 

defense’s closing argument. The prosecutor did not invoke a higher power, 

but instead instructed the jury to ignore such concerns. The prosecutor 

summarized his retort to the defense’s purported invocation of a higher 

power by stating: “So don’t wait for God to help. This is about earth and 

this planet and what we call justice on this planet while we are here.” N.T., 

2/3/04, at 210. There is nothing improper about these remarks. Indeed, 

these remarks properly directed the jury away from considering religious 

motivations in reaching their verdict.
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Appellant also complains that the prosecutor “falsely suggest[ed] that 

venire persons had been excused for cause out of fear of retaliation for 

serving on the jury.” Appellant’s Brief at 52. We disagree. The passage in 

question8 does nothing more than highlight a sad reality that there is often a

____________________________________________

8 This aspect of Appellant’s argument concerns the following portions of the 

prosecutor’s closing:

Do you remember when we were in a bigger group, when 

it was forty or sixty of you, when you first came in here? Judge 

Hughes asked a question: Is there anything about the nature of 

these charges that would make you unable to sit and fairly listen 

to the evidence in this case? A lot of your colleagues, a lot of 

your brothers and sisters, raised their cards up. Why did they 

do that? Why wouldn't they want to be sitting right here in front 

of the — in front of them and doing a job? Why not? Why did 

people put their cards up? The same reason that people get cold 

feet when they have to sit here, when they have to point at 

them, when they have to talk on the record, and when they have 

to look at all these people, the same reason.

So remember, Ladies and Gentlemen, you guys are 

numbers. I mean, I'm talking to you and you are human beings 

and you are the ones that are going to decide this case, but 

ultimately, you are numbers. You are juror number one. You are 

juror number two, three, four, up the list. The lawyers are 

instructed to destroy your names. You don't have to give your 

addresses. You only had to give neighborhoods where you live. 

Do you remember that? Not Robert Herring, not Carlton Gerald. 

....

N.T., 2/3/04, at 251-52.

Imagine you had a 16 year-old son, and your 16 year-old son 

comes home and tells you that he just saw a murder, that he 

knows the guy who did it, and he's a ruthless drug dealer. He 

knows the guy who died. What would you do? What would you 

do? Would you march him on down to the police station and 

(Footnote Continued Next Page)
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reluctance among the citizenry to get involved in the criminal process, even 

for jurors who remain relatively anonymous when compared to witnesses. 

This was a clear effort to contextualize the fears that prompted witnesses 

like Herring and Gerald to vacillate between positions favoring and 

disfavoring the Commonwealth’s theory of the case, witnesses whose 

credibility was of significant importance. The prosecutor never stated that 

potential jurors had actually been dismissed in this case due to a specific

fear of retaliation. We view these comments as permissible oratorical flair. 

In any event, trial counsel did object to some of the comments made 

by the prosecutor, and he requested a mistrial on that basis. Appellant 

contends that more objections should have been made, with better 

reasoning, and that if such objections had been made, a mistrial would have 

been granted. We disagree. We have not identified any clear prosecutorial 

error in the portions of the Commonwealth’s closing argument cited by 

Appellant. All of the statements highlighted by Appellant were either 

unobjectionable, oratorical flair, or fair response to arguments made by the 

defense. Accordingly, the PCRA court’s dismissal of this claim was supported 

by the record and free of legal error. 

(Footnote Continued) _______________________

say: All right, Johnny, tell the detectives what you know. Put 

yourself in this homicide case now. Let's — let them put your 

name down. Let them put your address down. Would you do it? 

Maybe some of you would. I don't know.

Id. at 255-56. 
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VIII.

Appellant’s next claim concerns the performance of his direct appeal 

counsel, who he claims was ineffective for failing to challenge on appeal the 

admission of Booker’s Recorded Testimony over objections that the 

Commonwealth failed to make a good faith effort to find him. That issue 

had been preserved by trial counsel, but abandoned by (both) appellate 

counsel. 

Appellant alleges: 

In this case, the Commonwealth [only] made cursory efforts to 

locate Booker at the time of the bench trial before Judge 

Mazzola, but then suspended all efforts until two days prior to 

Petitioner’s second trial, when detectives again began to look for 

Booker and his mother at a number of different addresses and 

locations, during daytime hours only, omitting to check the 

known address of Booker’s girlfriend.

Appellant’s Brief, at 55-56. 

“Where the Commonwealth seeks to admit a missing witness's prior 

recorded testimony, a ‘good faith’ effort to locate the witness must be 

established.” Commonwealth v. Wayne, 720 A.2d 456, 467 (Pa. 1998) 

(quoting Commonwealth v. Jackson, 344 A.2d 842 (Pa. 1975)). “What 

constitutes a ‘good faith’ effort is a matter left to the discretion of the trial 

court.” Id.

Here, Police Officer Broderick Mason testified that he checked multiple

locations where Booker had previously been known to live and frequent, and 

did so on multiple occasions. N.T., 1/29/04, at 12-20. Officer Mason knew 

Booker since 1990. Id. at 13. He said he checked all the locations where 
J-S74011-14

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he knew Booker had resided or where he “hung out ....” Id. Booker’s 

brother was contacted and instructed to encourage Booker to contact the 

police or the district attorney. Id. at 18. Based on information regarding 

the whereabouts of Booker’s mother, received from Booker’s brother, Officer 

Mason then visited where the brother had indicated Booker’s mother was 

staying. Id. However, he could not locate her there or any information 

about her living at that location from the property manager. Id. at 18-19. 

Separate searches had been conducted in anticipation of the first trial. Id.

at 21. However, Officer Mason did not begin looking for Booker again until a 

few days before the second trial, a few months short of a year from the end 

of the first trial. Id. at 21-22. 

Police Officer Michael Rocks also testified that he made efforts to 

locate Booker beginning a week before the second trial began. Id. at 32. 

Officer Rocks looked for Booker at no less than seven different locations on 

multiple occasions. Id. at 33-35. Officer Rocks inquired if the people he 

encountered knew Booker, but was unsuccessful in those efforts. Id. at 34. 

Officer Rocks spent several hours at some locations where Booker was 

known to frequent but was unable to locate him. Id. at 36-37. These 

efforts continued until the day before the second trial. Id. at 37. 

Based on the testimony of Officers Mason and Rocks, we ascertain no 

abuse of discretion in the trial court’s conclusion that the Commonwealth 

undertook a good faith effort to secure Booker’s presence at Appellant’s 

second trial. Thus, there is no arguable merit to the assertion of direct 
J-S74011-14

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appeal counsel’s ineffectiveness. Consequently, we agree with the PCRA 

court’s determination that Appellant was not prejudiced by his direct appeal 

counsel’s failure to challenge whether the Commonwealth made a good faith 

effort to locate Booker, as that determination is supported by the record and 

free of legal error.

IX.

In Appellant’s ninth claim, he contends that the cumulative prejudice 

of prior counsels’ ineffectiveness dictate that a new trial is warranted. We 

disagree. We have disposed of all but one of Appellant’s IAC claims by 

either holding that there was no arguable merit to the underlying legal issue 

or that there was no prejudice resulting from the (in)actions of counsel. 

Only with respect to Appellant’s fifth claim did we ascertain that some 

degree of prejudice resulted from counsel’s ineffective action; nevertheless, 

therein we concluded that there was no reasonable probability that the 

outcome of Appellant’s trial would have been different had counsel acted 

effectively. Accordingly, there is no cumulative prejudice for this Court to 

consider and, therefore, Appellant’s cumulative prejudice claim lacks merit. 

See Commonwealth v. Sneed, 45 A.3d 1096, 1117 (Pa. 2012) (holding 

that “where claims are rejected for lack of arguable merit, there is no basis 

for an accumulation claim[,]” and, similarly, that there is no basis for an 

accumulation claim where individual claims have been disposed of for an 

absence of prejudice). 

X.
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In Appellant’s final issue, he contends that the PCRA court erred by 

dismissing his claims without a hearing. 

Under Pennsylvania Rule of Criminal Procedure 909, the PCRA 

court has the discretion to dismiss a petition without a hearing 

when the court is satisfied “that there are no genuine issues 

concerning any material fact, the defendant is not entitled to 

post-conviction collateral relief, and no legitimate purpose would 

be served by any further proceedings.” Pa.R.Crim.P. 909(B)(2). 

“[T]o obtain reversal of a PCRA court's decision to dismiss a 

petition without a hearing, an appellant must show that he 

raised a genuine issue of fact which, if resolved in his favor, 

would have entitled him to relief, or that the court otherwise 

abused its discretion in denying a hearing.” Commonwealth v. 

D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004).

Sneed, 45 A.3d at 1105-06.

Appellant has not alleged any genuine issues of material fact that, if 

resolved in his favor, would entitle him to relief. Accordingly, we ascertain 

no abuse of discretion in the PCRA court’s dismissal of Appellant’s petition 

without a hearing. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/21/2015
J-S74011-14

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