J-S25014-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN K. ANDERSON : : Appellant : No. 1866 EDA 2024 Appeal from the PCRA Order Entered June 18, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005632-2011

BEFORE: PANELLA, P.J.E., DUBOW, J., and BENDER, P.J.E.

MEMORANDUM BY PANELLA, P.J.E.: FILED SEPTEMBER 4, 2025 Brian K. Anderson appeals from the order dismissing his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541- 9546. Anderson asserts the PCRA court erred in finding prior counsel was not ineffective. After careful review, we affirm on the basis of the well-reasoned opinion of the PCRA court.

In its opinion, the PCRA court fully and correctly sets forth the relevant factual and procedural history. We, therefore, have no reason to restate them at length here. Briefly, on April 19, 2011, Anderson hit the victim, Toby Gale, Jr., twice in the head with a hammer. Anderson later told police he hit Gale once in the head with the hammer because he believed Gale was reaching for a firearm and was about to rob him. Anderson, with the assistance of co- defendant Donier White, then wrapped Gale in trash bags, sealed them with J-S25014-25

duct tape and dumped Gale’s body. The Commonwealth’s medical expert testified at trial that Gale was still alive when Anderson and White wrapped him in trash bags and duct tape. Anderson was charged, inter alia, with murder of the first degree, murder of the third degree, possessing instruments of crime, abuse of corpse, and tampering with or fabricating physical evidence.1 Anderson proceeded to trial, held jointly with co-defendant White.

Anderson argued to the jury that he was not guilty of first-degree murder because he acted in self-defense. Anderson did not testify, and counsel relied on Anderson’s statement to police that he believed Gale was reaching for a firearm and about to rob him. The Commonwealth sought to discredit Anderson’s statement through multiple means.

The jury convicted Anderson of murder of the first degree, possessing instruments of crime, abuse of corpse, and tampering with or fabricating physical evidence.2 The trial court sentenced Anderson to an aggregate life imprisonment without parole and an additional 1-2 years’ incarceration.

Anderson appealed and this Court affirmed his judgment of sentence on November 26, 2013. Anderson did not file a petition for allowance of appeal with our Supreme Court. However, Anderson did file a timely PCRA petition

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1 18 Pa.C.S.A. §§ 2502(a), 2502(c), 907(a), 5510, 4910, respectively.

2 18 Pa.C.S.A. §§ 2502(a), 907(a), 5510, 4910, respectively.

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on January 22, 2014, alleging, inter alia, appellate counsel was ineffective for failing to file a petition for allowance of appeal. On May 22, 2015, the PCRA court granted the petition and reinstated Anderson’s right to file a petition with our Supreme Court nunc pro tunc.

Anderson filed his petition for allowance of appeal, and our Supreme Court denied that petition on December 8, 2015. Anderson filed the instant PCRA petition on March 6, 2016.3 Counsel was appointed and numerous requests for additional time to review Anderson’s case file were granted.

Ultimately, a counseled amended PCRA petition was filed on August 31, 2022.

A hearing was held on November 8, 2023, where trial and appellate counsel testified to their respective stewardship of the case. On June 18, 2024, the PCRA court dismissed Anderson’s PCRA petition. Anderson timely appealed and complied with the PCRA court’s order to file a Rule 1925(b) statement.

See Pa.R.A.P. 1925(b).

Anderson raises four issues for our review: 1. Whether the PCRA court erred in finding [Anderson’s] trial counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in allowing Juror #4 to be seated, as the juror was openly biased against [Anderson] based on the

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3 We note the instant PCRA petition is a timely, first PCRA petition filed after Anderson’s appeal nunc pro tunc rendered his judgment of sentence final. See Commonwealth v. O’Bidos, 849 A.2d 243, 252 n.3 (Pa. Super. 2004) (noting “the one-year [PCRA] time clock will not begin to run until [an] appeal nunc pro tunc renders [a] judgment of sentence final.”) (italics and citation omitted).

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nature of the case, and in ruling that trial counsel’s error was not prejudicial?

2. Whether the PCRA [c]ourt erred in finding that [Anderson’s] trial counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in failing to object to the closing argument of the prosecutor, during which the prosecutor argued that the statement of co-defendant Donier White, redacted to replace any reference to [] Anderson by name, proved [] Anderson’s guilt of [f]irst [d]egree [m]urder?

3. Whether the PCRA [c]ourt erred in finding that [Anderson’s] trial counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in failing to object to prejudicial and inflammatory remarks made by the prosecutor during closing argument, in which the prosecutor referred to [Anderson’s] statement to police as lies, purported to cross examine [Anderson’s] statement as if [Anderson] had actually testified and offered that [Anderson’s] statement should be used to “line the cat box[,”] where counsel had no reasonable basis to forego an objection to the remarks, and [Anderson] was prejudiced in that the remarks of the prosecutor were of such a nature as to form in the minds of the jurors a fixed bias against [Anderson]?

4. Whether the PCRA [c]ourt erred in finding [Anderson’s] direct appeal counsel was not ineffective under the Sixth Amendment to the United States Constitution and parallel provisions of the Pennsylvania Constitution, in failing to raise on direct appeal trial court error in admitting the testimony of Ratika Cruz that, prior to the homicide, [Anderson] uttered a threat of violence directed at no specific person, where Cruz’[s] testimony was inadmissible because it did not connect to the homicide, and, as evidence of a prior bad act was highly prejudicial and its admission not harmless as the Pennsylvania Superior Court cited the testimony as tending to prove malice required for [f]irst [d]egree [m]urder?

Appellant’s Brief, at 4-5.

All four of Anderson’s claims challenge the dismissal of his PCRA petition.

Our Supreme Court has instructed:

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When reviewing the denial of PCRA relief, we must determine whether the PCRA court’s factual findings are supported by the record, and whether its conclusions of law are free from legal error. Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party. Although we are bound by credibility determinations, we apply a de novo standard of review to legal conclusions.

Commonwealth v. Clancy, 192 A.3d 44, 63 (Pa. 2018) (italics and citations omitted).

The PCRA court’s opinion methodically details the law and facts surrounding ineffective assistance of counsel and each individual claim Anderson raised. We therefore see no reason to restate them here.

After a thorough review of the record, briefs of the parties, applicable law, and comprehensive opinion of the Honorable Kevin F. Kelly dated December 23, 2024, we conclude there is no merit to Anderson’s claims. See PCRA Court Opinion, 12/23/24, at 17-45 (finding (1) Anderson failed to prove he was prejudiced by the seating of juror number 4, juror number 4 presumably followed the court’s legal instructions, and Anderson presented no evidence to the contrary; (2) the prosecutor did not commit a Bruton4 violation in his closing as he only referred to the co-defendant’s statement and the physical/forensic evidence and did not identify Anderson as the other guy named in co-defendant’s statement, therefore trial counsel was not ineffective because there was no basis for him to object to the prosecutor’s closing

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4 Bruton v. U.S., 391 U.S. 123 (1968).

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statement; (3) trial counsel had a reasonable basis not to object to the prosecution’s closing where he argued Anderson’s statement was all lies because trial counsel did not want to draw attention to it, further, this claim does not have arguable merit as the prosecutor was simply arguing in response to Anderson’s closing argument where he told the jury to believe his statement to police; and (4) appellate counsel was not ineffective for failing to appeal the admission of Cruz’s testimony because, even if in error, it was harmless due to the significant amount of medical and forensic evidence establishing Anderson’s guilt).

For the convenience of the parties, we have attached the cogent and thorough 47-page opinion of the Honorable Kevin F. Kelly dated December 23, 2024.

Order affirmed.

Date: 9/4/2025

-6- Circulated O /14/2025 11.23 AM Circulated 08/14/2025 12_0pinion 11:23 AM Dated 12-23-202.

2_Opinion Dated 12-23-202.

THE THE COURT COURT OF OF COMMON COMMON PLEAS PLEAS OF OF DELAWARE DELA WARE COUNTY, COUNTY, PENNSYLVANIA PENNSYLVANIA CRIMINAL CRIMINAL

COMMONWEALTH COMMONWEALTH OF OF PENNSYLVANIA PENNSYLVANIA : NO. NO. 5632-11 5632-11 v. v. ·r·;

i ■■■ : n pt /I BRIAN BRIAN KEITH KEITH ANDERSON + ANDERSON Superior Court No.:1866 EDA2024\ Court No.1866EDA2024 Superior .·-.. c CO i Michael J.J. Flowers, Michael Flowers, Esquire Esquire--Assistant Assistant District District Attorney Attorney for for the Commonwealth the Commonwealth William P. Wismer, Esquire - Attorney for Brian Anderson William P. Wismer, Esquire -- Attorney for Brian Anderson I : - .: .

OPINION OPINION

Kelly, Kelly,J.J. Date: December Date: December23, 23,2024 2024

i I.I. Introduction Introduction

BrianKeith Brian KeithAnderson, Anderson,(hereinafter (hereinafterreferred referredtotoasas“the "theDefendant” Defendant"oror“Defendant "DefendantAndersonp Anderso ' hasfiled has fileda atimely, timely,counseled counselednotice noticeofofappeal fromthis appealfrom court'sJune thiscourt’s June18, 18,2024, 2024,Order OrderDismissing Dismissi PCRAPetition PCRA PetitionAfter AfterEvidentiary EvidentiaryHearing PursuanttotoPa.R.Crim.P. HearingPursuant Pa.R.Crim.P.908. SeeAmended 908. See AmendedPetition Petitionfol- ReliefUnder Underthe thePennsylvania Post-ConvictionCollateral PennsylvaniaPost-Conviction CollateralRelief ReliefAct 1 Act1(hereafter "PCRA")docket (hereafter“PCRA”) docket3d Relief ononAugust 31,2022; August31, 2022;PCRA PCRAevidentiary evidentiaryhearing hearingononNovember November8,8,2023, 2023,N.T.

N.T. 11/8/23, 11/8/23,pp. 1- 'il; pp.1-G; PCRADismissal PCRA DismissalOrder Orderdated datedJune June18, 18,2024; 2024;Notice NoticeofofAppeal filedJuly Appealfiled July12, 12,2024; 2024;and andSuper SuperJr r Court CourtNo.

No.1866 1866EDA EDA2024; 2024;and andrelated relatedresponsive responsivefilings. filings.

I Forthe For thereasons reasonsdetailed detailedinfra, thePCRA infra, the PCRAclaims claimsfor forrelief reliefadvanced advancedby Defend Jit Anderson'scounseled, Anderson’s counseled,Amended AmendedPCRA PCRAPetition, Petition,upon upona areview reviewofofthe therelevant relevantrecord recorddoes doesnot support supporta agrant grantofof PCRA PCRArelief. relief.

II.

II. Case CaseHistory Historv

This This case case commenced commenced on on April April 23, 23, 2011, 2011, with with the the filing filing of of aa criminal criminal complaint complaint by b Detectives DetectivesJames JamesE.E.Nolan, Nolan,IV, IV,Chester ChesterCity CityPolice PoliceDepartment, Department,and andMichael MichaelJay, Jay,Delaware DelawareCounty Coun Criminal Criminal Investigation InvestigationDivision, Division, inter interalia, alia, charging charging Defendant DefendantAnderson Andersonwith withmurder murderof ofthe thefirst fir t degree; degree;2 murder murder of of the the third third degree; 3 possessing degree;' possessing instruments instruments of of crime; 4 abuse crime;" abuse of of corpse; corpse;55 an anI tamperingwith tampering with ororfabricating fabricatingphysical evidence.6 physical evidence.

On On September September28, 28, 201 1, aapreliminary 2011, preliminary hearing hearingwas washeld heldbefore beforethe themagisterial magisterialdistrict districtcourt. co At At the the conclusion conclusion of ofthe the preliminary preliminary hearing’s hearing's presentation presentation of ofevidence, evidence, the the presiding presiding magisterial magisteri district district judge judge found found the the prosecution prosecution had had established established prima primafacia facia all all prosecuted prosecuted offenses. offenses. N.V N.

9/28/11, 9/28/11, pp. pp. 5-6, 5-6, 75-77.

75-77. See See also also listed listed offenses offenses supra. supra.

Before Before the the trial trial court court on on October October 27, 27, 2011, 2011, the the Defendant Defendant was was formally formally arraigned arraigned atat which whi / time time the the Office Office of of the the District District Attorney Attorney of of Delaware Delaware County County lodged lodged against against him him aa criminal crimi information information averring, averring, inter inter alia, alia, the the above-referenced above-referenced crimes. crimes. (Count (Count 11 —- Murder Murder of of the the First Fi s Degree; Degree; Count Count 22- - Murder Murder of ofthe the Third Third Degree; Degree; Count Count 44 - Possessing Possessing Instruments Instruments of ofCrime; Crime; Count Co --Abuse Abuse of of Corpse; Corpse; and and Count Count 77- - Tampering Tampering with with or or Fabricating Fabricating Physical Physical Evidence.)

Evidence.) TTi e Commonwealth Commonwealth as as well well filed filed aa Notice Notice of of Proposed Proposed Joinder Joinder Under Under Pennsylvania Pennsylvania Rule Rule of of CriminEl Crim· Procedure Procedure 582 White White (No. of of its its intent (No. 5625-11). intent to 5625-11). See to collectively collectively try See Pa.R.Crim.P. Pa.R.Crim.P. 582. try the 582. See the Defendant, See also Defendant, along along with also Commonwealth with his his Co-Defendant, Commonwealth v.v. White, Co-Defendant, Don White, No. No. 5625-11.

Don er 5625-11. Ihee r Office Office of of the the Public Public Defender Defender of of Delaware Delaware County County having having determined determined that that the the Defendant Defendant qualif qualifleed ld for its professional services, and the court having concluded that a conflict of interest existed in intt lat

office’s office's representation representation of of Defendant Defendant Anderson, Anderson, by by order order of of December December 1,1, 2011, 2011, Scott Scott D.

D. Galloway, Galloway Esquire Esquire was was appointed appointed his his counsel. counsel. See See Order Order dated dated December December 1,1, 201 1.

2011.

At At trial, trial, the the prosecution prosecution proceeded proceeded only only on on the the following following charges: charges: Count Count 11Murder - Murder of of th; th First First Degree; Degree;77 Count Count 22- - Murder Murder of ofthe the Third Third Degree; Degree;88 Count Count 44 -- Possessing Possessing Instruments Instruments of ofCrime: Crime 9 Count Count 66 -Abuse Abuse of of Corpse; Corpse;"10 and and Count Count 77 -- Tampering Tampering with with or or Fabricating Fabricating Physical Physical Evidence, Evidence,"!

withdrawing, withdrawing, of-record, of-record, the the balance balance of of past past filed filed criminal criminal information’s information's counts counts the the day day prior prior to to jury j selection. selection. N.T.

N.T. 5/10/12 5/10/12 (Robing (Robing Room Room Conference), Conference), pp. pp. 3-4.

3-4.

After Afterjury jury selection selection on on May May 11, 2012, 11, 2012, the the Defendant’s Defendant's jury jury trial trial commenced commenced before before this this court co on on May May 14, 14, 2012, 2012, continued continued over over the the next next two two (2) (2) days days (May (May 15, 15, 2012, 2012, and and May May 16, 16, 2012), 2012), ard concluded concluded the the following following day, day, May May 17, 17, 2012.

2012. As As to to all all prosecuted prosecuted charges, charges, count count 11- - murder murder of oftthe - I first first degree; degree;'12 count count 44 -- possessing possessing instruments instruments of of crime; crime;'13 count count 66 -- abuse abuse of of corpse, corpse,"14 and and count 7 count'7 -- tampering tampering with with or or fabricating fabricating physical physical evidence, evidence,'5the the jury jury found found Defendant Defendant Anderson Anderson guilty guilty.. N.

N. f.

5/17/12, 5/17/12, pp. pp. 113-27.

113-27. See See Jury Jury Verdict.

Verdict.

By By virtue virtue of of the the jury jury having having found found Defendant Defendant Anderson Anderson guilty guilty of of count count 11- - murder murder of oftt re first first degree, degree, per per the the court’s court's final final instructions, instructions, it it did did not not render render aa verdict verdict otherwise otherwise on on the the lesser !es l degrees degrees of of homicide, homicide, murder murder of of the the third third degree, degree,'16 and and voluntary voluntary manslaughter. manslaughter.'17 See See Pa.SSJI Pa.S (Crim) (Crim) 15.2501B.

15.2501B. Although Although not not aa charge charge levied levied by by the the Commonwealth, Commonwealth, the the crime crime of of voluntary volunt manslaughter manslaughter was was at at trial trial counsel’s counsels request request submitted submitted for for decision decision to to the the jury, jury, absent abs Commonwealth Commonwealth objection. objection. N.T.

N.T. 5/16/12, 5/16/12, pp. pp. 192-93, 192-93, 203-05, 203-05, 207-08, 207-08, 216-17; 216-17; and and N.T.

N.T. 5/17/ 5/17/ LA,' pp. pp. 67-69, 67-69, 73-74, 73-74, 76-82.

76-82. See See also also Jury Jury Verdict.

Verdict.

A sentencing hearing was held on July 26, 2012. Defendant Anderson was sentenced by thi A sentencing hearing was held on July 26, 2012. Defendant Anderson was sentenced by this court pursuant to the applicable statute to a term of incarceration at a state correctional institutio court pursuant to the applicable statute to a term of incarceration at a state correctional insMon of life without parole on count 1 - first degree murder;' three (3) to sixty (60) months under co of life without parole on count 1 - first degree murder;" three (3) to sixty (60) months under count 4-possessing instruments of crime;" one (1) to twenty-four (24) months per count 7 - tamperin one (1) to twenty-four (24) months per count 7 - tampering - possessing instruments of crime; with or fabricating physical evidence; and one (1) to two (2) years on count 6 - abuse of corpse. with or fabricating physical evidence- and one (1) to two (2) years on count 6 - abuse of corpse.

See 18 Pa.C.S. §1102(a). The sentences of count 4 -- possessing instruments of crimeand count See 18 Pa.C.S. §1 102(a). The sentences of count 4 - possessing instruments ofcrime- and count J - tampering with or fabricating physical evidence23 were directed to be served concurrent to eac directed to be served concurrent to eac i - tampering with or fabricating physical evidence 23 were other, .as well as concurrent with the sentence imposed under count 1- first degree murder, 24 ■, 24 whilewhi e other,. as well as concurrent with the sentence imposed under count 1 first degree murder, the sentence of count 6 -abuse of corpse25 was imposed consecutive to count 1 - first degr the sentence of count 6 - abuse of corpse- was imposed consecutive to count 1 - first degr e murder.26 Thus, the aggregate sentence was life imprisonment without parole followed by one ( life imprisonment without parole followed by one (1 ) murder. 26 Thus, the aggregate sentence was through two (2) years additional incarceration. N.T. 7/26/12,i, pp. 32-40. See also Certificate 32-40. See also Certificate of through two (2) years additional incarceration. N.T. 7/26/12, PP Imposition of Judgment of Sentence.

Imposition of Judgment of Sentence.

Following sentencing, Jordan Kelleher Reilly, Esquire assumed stewardship of t j v iicsUnr Peillv Esauire assumed stewardship of the Following sentencing, Jordan Kelleher Reilly, Esquire Defendant's interests. Through Ms. Reilly, Defendant Anderson timely lodged on August 3, 201 + , ah Ms Reillv Defendant Anderson timely lodged on August 3, 12 Defendant’s interests. Through Ms. Keiny, post-sentence motions challenging each of his convictions and seeking an arrest of judgme each of his convictions and seeking an arrest of judgment, post-sentence motions challenging judgment of acquittal, and/or the granting of a new trial. See Defendant's Post-Sentence Motio» trial. See Defendant’s Post-Sentence Motions, %

judgment of acquittal, and/or the granting of anew Paragraphs I and II. See generally Pa.R.Crim.P. 720.

Paragraphs I and II. See generally Pa.R.Crim.P. 720.

At the resulting hearing on November 16, 2012, defense counsel, with the Defendan 's At fire resulting hearing on November 16, 2012, defense counsel, wtth the Defen an. agreement,advancedof-record, agreement, advanced of-record,ininopen opencourt, court,ananoral oralapplication applicationtotodiscontinue discontinuethese thesepost-senteilae post-sente ce motions. Upon the court's conducting a colloquy of-record regarding the withdrawal of the p motions. Upon the court’ s conducting a colloquy of-record regarding the withdrawal of the pos - sentence sentencemotions, motions,m/er interu//n, alia,Defendant DefendantAnderson Andersonacknowledged acknowledgedthat thathehewas wascompletely completelyaware awareml appreciated appreciatedthe theconsequences consequencesofofsuch suchactions actionsand andknowingly, knowingly,intelligently intelligentlyasaswell wellasasvoluntarily voluntarilywas ininagreement agreementwith withthe thediscontinuation discontinuationofof thesepost-sentence these motions.The post-sentencemotions. Thecourt courtrelatedly directe relatedlydirected thatthe that thepost-sentence post-sentencemotions motionswere weretotobebenoted notedof-record of-recordasaswithdrawn withdrawnper perananorder orderdated date November16,16,2012.

November 2012.See Orderdated SeeOrder datedNovember November16,16,2012.

2012.

TheDefendant The Defendantforwarded forwardeda aletter lettertotochambers chambersononDecember December10, 10,2012, 2012,inter interalia, alia,requesting requestin thatthe that thecourt courtappoint appointananattorney attorneytotoassist assisthim himpursue pursuea adirect directappeal. Defendant'sLetter.

SeeDefendant’s appeal. See Letter. A resultinghearing resulting hearingwas washeld heldononDecember December13, 13,2012, 2012,and andwith withDefendant DefendantAnderson Anderson's agreement,the s agreement, t courtappointed court Ms.Reilly appointedMs. Reillyasasappellate counselrecognizing appellatecounsel recognizingher herpast pastinvolvement involvementatatbar barafforded afford herananunderstanding her understandingofofthe thecase casenot notenjoyed enjoyedbybyother otherlawyers. lawyers.

TheDefendant The Defendanton onDecember December 14, 14,2012, 2012,timely timelyfiled filed a acounseled counselednotice noticeofofappeal appealtotothe t Superior Courtof SuperiorCourt ofPennsylvania fromthis Pennsylvaniafrom thiscourt’s court'ssentencing sentencingjudgment judgmentmade madefinal finalvia viaits itsorder orderof November 16, November 16, 2012, memorializing of-record, 2012, memorializing of-record, asas withdrawn, withdrawn, the the Defendant’s Defendant's post-sentence post-senten motions. See motions. Noticeof SeeNotice ofAppeal datedDecember Appealdated December14, 14,2012.

2012. See Seealso SuperiorCourt alsoSuperior CourtNo.

No.3459 3459EDA E 2012.

2012.

By order dated By order dated January January 3,3, 2013, 2013, the the court court directed directed Defendant Defendant Attorney’s Attorney's attorney attorney file file of- record aaConcise record Concise Statement Statement of ofMatters Matters Complained ofon Complained of onAppeal.

Appeal. See Pa.R.A.P. 1925(b).

See Pa.R.A.P. 1925(b). See See also a Order dated Order dated January January 3,3, 2013.

2013.

On or On or about about January 2013, Ms. January 9,9, 2013, Ms. Reilly filed of-record Reilly filed of-record aa Petition Petition for for Leave Leave to to Withdrew.

Withdr Petition dated See Petition See dated January 2013. A January 9,9, 2013. A hearing hearing regarding regarding this this withdrawal withdrawal petition petition was was held held on a January January 22, 22, 2013, before this 2013, before this court. court. Absent Absent opposition, the court opposition, the court permitted pennitted Ms. Ms. Reilly Reilly to to step step as • c.e and and appointed Andrew Goldberg, appointed Andrew Goldberg, Esquire Esquire to assume stewardship to assume stewardship of ofthe the Defendant’s Defendant's interests interests at at jar L by order of by order of that that same same date date (January 22, 2013). (January 22, 2013). See Petition and See Petition and Order Order dated dated January January 22, 22, 2013.

2013.

Mr. Goldberg given his most recent appointment understandably sought additional time t Mr. Goldberg given his most recent appointment understandably sought additional time to identify and raise the Defendant's appellate challenges through his lodging of a Petition fo identify and raise the Defendant’s appellate challenges through his lodging of a Petition for Extension of Time to File l 925(b) Statement of Matters. See Extension Petition dated January 3 , Extension of Time to File 1925(b) Statement of Matters. See Extension Petition dated January 3C, 2013. Per order of January 30, 2013, without Commonwealth objection, the court granted th 2013. Per order of January 30, 2013, without Commonwealth objection, the court granted the Defendant's extension application and directed defense counsel to file of-record and serve on t · s Defendant’s extension application and directed defense counsel to file of-record and serve on this court a statement of errors for appellate review no later than sixty ( 60) days subsequent. court a statement of errors for appellate reviewno later than sixty (60) days subsequent. See Order dated January 30, 2013. See generally Pa.R.A.P. 1925(b). dated January 30, 2013. See generally Pa.R.A.P. 1925(b).

Defense counsel timely lodged on March 12, 2013, a statement of matters complained of Defense counsel timely lodged on March 12, 2013, a statement of matters complained of on appeal. See Statement of Matters Complained dated March 12, 2013. See generally Pa.R.A. appeal. See Statement of Matters Complained dated March 12, 2013. See generally Pa.R.A.P. 1925(b). This error assignment statement raised the sole error assignment that the trial eviden 1925(b). This error assignment statement raised the sole error assignment that the trial evidence while sufficient to prove voluntary manslaughter,27 was as a matter of law insufficient to sustain t while sufficient to prove voluntary manslaughter?’ was as a matter of law insufficient to sustain tie l Defendant's first degree murder,28 conviction. See Statement of Matters Complained dated Mar Defendant’s first degree murder,” conviction. See Statement of Matters Complained dated Mar h 12, 2013.

12, 2013.

This court lodged of-record on or about June 26, 2013, its required opinion. See Pa.R.A This court lodged of-record on or about June 26, 2013, its required opinion. See Pa.R.A.P. 1925(a). See also Trial Court Opinion dated June 26, 2013. For a comprehensive recitation oft 1925(a). See also Trial Court Opinion dated June 26, 2013. For a comprehensive recitation of the evidence presented at trial, this court references and incorporates its 1925(a) direct appeal opini evidence presented at trial, this court references and incorporates its 1925(a) direct appeal opinion.

See Id, pp. 11-56.

See Id., pp. 11-56.

The Superior Court by its opinion dated November 26, 2013, found the totality of the t · 1 The Superior Court by its opmion dated November 26, 2013, found the totality of the 1 , record was legally sufficient to sustain the Defendant's first degree murder conviction d record was legally sufficient to sustain the Defendant’s first degree murde^’ conviction ok affirmed his sentencing judgment. See Superior Court No. 3459 EDA 2012 - Opinion, p. 6, affirmed his sentencing judgment. See Superior Court No. 3459 EDA 2012 - Opinion, p. 6, C A.3d 67 (Pa.Super. 2013)(Table), 2013 WL 11250364 (text) A.3d 67 (Pa.Super. 2013)(Table), 2013 WL 11250364 (text)

From the Superior Court's affirming the Defendant's judgment of sentence, defense counse From the Superior Court's affirming the Defendant's judgment of sentence, defense counse. did not lodge with the Pennsylvania Supreme Court a Petition for Allowance of Appeal. ■ l u n Ivania Sunreme Court a Petition for Allowance of Appeal.

The Defendant on or about January 22, 2014, lodged prose a Motion for Post Convictio , t oo 9014 lodged pro se a Motion for Post Conviction The Defendant on or about January 22, 2014, lodged pro Collateral Relief. See Defendant's Motion dated January 22, 2014. By this collateral filin , j t no 0014 Bv this collateral filing, Collateral Relief. See Defendant's Motion dated January , ■ Defendant Anderson averred the ineffective assistance of counsel in that his appellate attorney faile ective assistance of counsel in that his appellate attorney tatleo to file an allowance of appeal petition with the Pennsylvania Supreme Court, despite the Defendant' with the Pennsylvania Supreme Court, despite the Defendant! to file an allowance of appeal petition repeated direction that such on his behalf be done. See Defendant's Motion dated January 22,201 . .. See Defendant’s Motion dated January 22, 2014 . repeated direction that such on his behalf be done Consistent with his request for an attorney's assistance, Stephen D. Molineux, Esquire vi Consistent with his revest for an attorney's assistance, Stephen D. Molineux, E squire v court order dated January 24, 2014, was appointed stewardship of Defendant Anderson's interest . court order dated January 24, 2014, was appointed stewardship of Defendant Anderson's mterestd See generally Commonwealth v. Luckett, 700 A.2d 1014, 1016 (Pa.Super. 1997). See al Ifh v Luckett 700 A.2d 1014, 1016 (Pa.Super. 1997). See also See generally Commonwealth v. Luckett, Commonwealth v. Perez, 799 A.2d 848, 851-52 (Pa.Super. 2002) citing Commonwealth v. Guthri , CommonWeM V. Perez, W A.2d 848, 851-52 ( Pa.Super. 2002) citing Commonwealth v. Gut 4, 749 A.2d 502, 504 (Pa.Super. 2000); Commonwealth v. Ferguson, 722 A.2d 177, 179 (Pa.Sup A 2d 502, 504 (Pa.Super. 2000); Commonwealth v. Ferguson, 722 A.2d 177, 179 (Pa.SupA 1998); Commonwealth v. Hampton, 718 A.2d 1250, 1252-53 (Pa.Super. 1998); and Commonweal 98);— v. Romas, 14 A.3d 894, 895-96 (Pa.Super. 2011). See also Motion dated January 22, 2014, p. 7. v. Romas, 14 A.3d 894, 895-96 (Pa.Super. 2011). See also Motion dated January 22, 2014, p. 7.

After requesting and being granted several such extension applications, collateral counste ■ 4 heina granted several such extension applications, collateral counil After requesting and being g filed on or about April 17, 2015, an amended PCRA petition. See Amended Petition dated Ap · , , PCRA petition. See Amended Petition dated April filed on or about April 17, 2015, an amended PCRA petmon 17, 2015. See also Orders dated October 15, 2014; - February 6, 2015; and March 24, 2015. Throu it 001 5- and March 24, 2015. Through 2015 See also Orders dated October 15, 2014; February 6, 2015, and M J this amended collateral pleading, the Defendant's lawyer similar to the original prose PCRA moti this amended collateral pleadmg, the Defendant’s lawy er simrlar to the original Prose PCRA mo । asserted the ineffectiveness of direct appeal counsel in that an allowance of appeal petition was .sertedthemelfe— lodged with the Supreme Court of Pennsylvania contrary to that which the Defendant tim .. .... ~ - - •“ ~j directed. See Amended Petition dated April 17, 2015 -- Paragraph Nos. 10-17. Per the amen „ s„ „„ p— - " । ' petition, petition, thethe defense defense attorney attorney sought sought reinstatement reinstatement ofof thethe Defendant's Defendant’s right to to right pursue a direct a direct pursue appea. appea through through thiscourt this court permitting permitting thethe lodging lodging with with thethe Pennsylvania Pennsylvania Supreme Court Court Supreme ofof a mnunc a nunc pro tun protunc petition petition forforallowance allowanceofof appeal. SeeAmended appeal.See Amended Petition Petition dated dated April 2015.

April17,17,2015.

AAhearing hearingregarding regardingthetheDefendant’s Defendant'sPCRA PCRApleadings washeld pleadingswas heldononMay 21,2015, May21, befor 2015,before thiscourt. this court.The TheDefendant Defendanthaving havingbeen beenmade madeaware awareofof hishisright righttotobebephysically physicallypresent presentknowingly, knowing!

intelligently,and intelligently, andvoluntarily waivedthe voluntarilywaived thesame sameand andononthe theadvice adviceand andconsent consentofofhishislawyer lawyeragreed agree totoappear appearand andparticipate participatefor forpurposes purposesofofthis thisproceeding proceedingvia viavideo videoconferencing fromSCI conferencingfrom S Huntingdon. Seegenerally Huntingdon. See generallyPa.R.Crim.P. Pa.R.Crim.P.119(A)(7).

119(A)(7).

TheOffice The Officeofofthe theDelaware DelawareCounty CountyDistrict DistrictAttorney Attorneyacknowledged of-recordatatthe acknowledgedof-record thehearing hearin thePCRA regardingthe regarding PCRApleadings thatitithad pleadingsthat hadconfirmed confirmedwith withhis hisdirect directappellate appellateattorney Defenda attorneyDefendant Andersondid Anderson didininfact factmake maketimely timelyknown knowntotohim himthat thatininthe theevent eventthe theSuperior SuperiorCourt Courtaffirmed affirmedtie t judgmentatatbar sentencingjudgment sentencing barananallowance allowanceofofappeal petitionwas appealpetition wastotobebelodged lodgedwith withthe thePennsylvan Pennsylv a Supreme Court.

Supreme Court.

Thecourt The courton onMay 22,2015, May22, 2015,entered enteredan anorder ordergranting theDefendant’s grantingthe Defendant'samended amendedpetition petitionar c. reinstated nuncpro reinstatednunc tunethe protunc theDefendant’s Defendant'sright righttotoseek seekwith withthe theSupreme SupremeCourt Courtof ofPennsylvania Pennsylvaniaiin allowanceof allowance ofappeal. SeeOrder appeal. See Orderdated datedMay May22, 22,2015.

2015.

Contemporaneous with his Contemporaneous with his filing filing of of the the amended amended collateral collateral petition petition then then pending, pending, N i.

Molineuxas Molineux aswell well lodged anApplication lodgedan forAppointment Applicationfor ofDirect Appointmentof DirectAppeal Appeal Counsel Counsel and andWithdrawal Withdra ofAppearance of ofPCRA Appearance of PCRA Counsel. See Withdrawal Counsel. See Withdrawal Application. See Application Application. See Application dated dated April April b, 2015.

2015.

By separate order also of May 22, 2015, the court, absent opposition, granted PC , kn nf Mav 22 2015 the court, absent opposition, granted PCRA By separate order also oi May zz, zvij, counsel's application to withdraw and for purposes of the Defendant pursuing before th counsel’s application to withdraw and for purposes of the Defendant pursm g Pennsylvania Supreme Court an allowance of Nusrat J. Esquir . petitionpetition Pennsylvania Supreme Court an allowance of appeal appeal Nusrat J. Rashid,Rashid, appointed appointed Esquire.

See Order dated May 22, 2015.

See Order dated May 22, 2015.

On July 2, 2015, Attorney Rashid lodged a Petition for Allowance of Appeal with th on July 2, 2015, Attorney Rashid lodged a Petition for Allowance of Appeal with thb Pennsylvania Supreme Court. See Supreme Court No. 509 MAL 2015 - Petition for Allowance „ M AT 2015 - Petition for Allowance c f Pennsylvania Supreme Court. See Supreme Court No. 509 MAL Appeal.

Appeal.

The Pennsylvania Supreme Court on December 8, 2015, entered an order denying t e The Pennsylvania Supreme Court on December 8, 2015, entered an order denying the Defendant's allowance of appeal petition. See Supreme Court No. 509 MAL 2015 -- Order dat Defendant’s allowance of appeal petition. See Supreme Court No. 509 MAL 2015 - Order dat^d December 8, 2015; 634 Pa. 740, 130 A.3d 1285 (2015)(Table).

December 8, 2015; 634 Pa. 740, 130 A.3d 1285 (2015)(Table).

The Defendant's counsel then fil The Defendant’s counsel then fild<| on December 18, 2015, an Application for Reconsideration of Denial of Petition for Allowance on December 18, 2015, an Application for Reconsideration of Denial of Petition for Allowance | Appeal. See Supreme Court No. 509 MAL 2015 -- Application for Reconsideration of Denial Appeal, See Supreme Court No. 509 MAL 2015 - Application for Reconsideration of Dema Petition for Petitionfor Allowance Allowance of Appeal. of Appeal. TheThe Supreme Supreme Court Court of Pennsylvania of Pennsylvania by order by order dated dated January January 2|1 2 2016, denied this application for reconsideration. See Supreme Court No. 509 MAL 2015 -- Ord Court No. 509 MAL 2015 -Ords- 2016, denied this application for reconsideration. See Supreme dated January 21, 2016.

dated January 21, 2016.

Attorney Rashid on February 9, 2016, filed a Petition to Withdraw Appearance in the abo February 9, 2016, filed a Petition to Withdraw Appearance in the abo^ Attorney Rashid on captioned matter. By an order dated February 10, 2016, this court granted this petition to withdra 10, 2016, this court granted this petition to withdraw captioned matter. By an order dated February See Order dated February 10, 2016.

See Order dated February 10, 2016.

On March 16, 2016, the Defendant lodged his most recent Motion for Post Convicti Defendant lodged his most recent Motion for Post Convictibh On March 16, 2016, the Collateral Relief. See Motion filed on March 16, 2016, and postmarked March 14, 2016.

March 16, 2016, and postmarked March 14, 2016 Collateral Relief. See Motion filed on

Via Viaananorder orderdated datedMarch March23, 23,2016, 2016,Henry HenryDiBenedetto DiBenedettoForrest, Forrest,Esquire Esquirewas wasfor forpurposes purpose ofofthis thiscollateral collateralaction actionappointed appointedtotorepresent representDefendant DefendantAnderson. SeeOrder Anderson. See Orderdated datedMarch March23, 2016. After 2016. Aftera anumber numberofofextension extensionrequests requestsand andhybrid hybridfilings theDefendant, filingsbybythe whichwere Defendant,which werenot n adopted adoptedbybyhis hisappointed appointedPCRA PCRAcounsel, counsel,said saidcounsel counselmade madeapplication applicationtotowithdraw withdrawfrom fromthis thismatte matter because becauseofofananirretrievable irretrievablebreakdown breakdownininnecessary necessaryattorney attorney---client clientrelations. SeeApplication relations. See Applicationtot Withdrawfiled Withdraw filedFebruary February10, 10,2022.

2022.This Thiscourt courtgranted grantedthe thewithdrawal withdrawalrequest andappointed requestand prese t appointedpresent PCRA PCRAcounsel, counsel,William WilliamP.P.Wismer, Wismer,Esquire Esquirebybyorder orderdated datedMarch March14, 14,2022. SeeOrder 2022. See Orderentered entere March14, March 14,2022 2022and andAOPC AOPCDocket.

Docket.

The TheDefendant, Defendant,through throughhis hiscounseled, counseled,amended amendedPCRA PCRApetition, petition,sought soughtrelief reliefininthe theform formc f vacatinghis vacating hisconvictions convictionsfor formurder murderand andrelated. relatedoffenses offensesand andordering orderingaanew newtrial. SeeDefendant’s trial. See Defendant s counseled, counseled, Amended Amended PCRA PCRA Petition Petition docketed docketed August August 31, 31, 2022.

2022. This This court court ordered, ordered, and and the Commonwealth responded Commonwealth responded toto the the Defendant’s Defendant's Amended Amended PCRA PCRA Petition. See Commonwealth Petition. See Commonwealths MotiontotoDismiss Motion Dismissand andMemorandum Memorandumof ofLaw, Law,filed filedFebruary 20,2023.

February20, 2023.

On OnNovember November 8,8, 2023, 2023, pursuant pursuant toto Pa.R.Crim.P. Pa.R.Crim.P. 908, 908, the the court court held held aa PCRA PCRA evidential} evidenti See N.T. hearing. See hearing. N.T. 11/8/23, 11/8/23, pp. 1-67. By pp. 1-67. agreement and By agreement and atat the the direction direction of ofthe the court, court, both bothparties parti submitted post-hearing submitted memoranda following post-hearing memoranda following receipt of the receipt of the PCRA PCRA hearing hearing transcript. See N. transcript. See N. f 11/8/23, pp.

11/8/23, pp. 66-67; 66-67; Petitioner’s Petitioner's Memorandum Memorandum of ofLaw Law dated datedJanuary January 2, 2, 2024; 2024; and and Commonwealth’s Commonwealt ' Supplemental Supplemental Post-Hearing Post-Hearing Memorandum Memorandum in in Support Support of ofDismissal Dismissal filed filed February February 1,1, 2024.

2024.

Upon Upon review review and and consideration consideration of of the the entire entire PCRA PCRA hearing hearing record, record, which which included includ Defendant’s Defendant's Amended Amended PCRA PCRA Petition Petition docketed docketed August August 31, 31, 2022; 2022; the the Commonwealth’s Commonwealth's Motion Motion to t Dismiss Dismiss and and Memorandum Memorandum of of Law Law dated dated February February 20, 20, 2023; 2023; the the PCRA PCRA evidentiary evidentiary hearing heari

transcript dated November 8, 2023; the Petitioner's counseled post-hearing Memorandum i transcript dated November 8, 2023; the Petitioner’s counseled post-hearing Memorandum m Support of Post Conviction Relief dated January 2, 2024; and the Commonwealth's Supplement Support of Post Conviction Relief dated January 2. 2024; and the Commonwealth’s Supplemental Response docketed February 1, 2024, as well as having conducted an independent and thoroug Response docketed February 1, 2024, as well as having conducted an independent and thorough review of the record at trial, the court on June 18, 2024, dismissed Defendant Anderson's amende review of the record at trial, the court on June 18, 2024, dismissed Defendant Anderson’s amended PCRA petition and denied his related post-conviction collateral request for relief. See Ord PCRA petition and denied bis related post-conviction collateral request for relief. See Ordi Dismissing PCRA Petition after Evidentiary Hearing dated June 18, 2024; and AOPC Docket. Se Dismissing PCRA Petition after Evidentiary Hearing dated June 18, 2024; and AOPC Docket. See also Defendant's counseled, Amended PCRA Petition docketed August 31, 2022. also Defendant’s counseled, Amended PCRA Petition docketed August 31, 2022.

The relevant underlying factual background as elicited at Defendant Anderson's trial is s t The relevant underling factua! backed as elicited at Defendant Anderson’s trial is sit forth infra from the Superior Court's Memorandum Opinion affirming the Defendant's sentencin forth infra from the Superior Court’s Memorandum Opinion affirming the Defendant’s sentencing judgement. judgement.

Appellant, Brian K. Anderson, appeals from the judgment of Anpellant sentence, Brian K. toAnderson, pursuant appeals a conviction from for first the murder, degree judgmententered of sentence, pursuant to a conviction for first degree ““^entered on July 26, 2012, by the Honorable Kevin F. Kelly, Court of on Common Tulv 26 Pleas 2012, of by Delaware the Honorable County.KevinAfterF. careful Ke ly, Court review,orwe Common affirm. Pleas of Ddaware County. After careftd review. we affirm.

In a recorded statement to police investigators on April 22, 2011, In Anderson a recordedadmitted statement thattoinpolice investigators the evening of Aprilon19,April 2011,22he , 2011 had hit Anderson admitted that in the evening of April 19, 2011, the victim, Toby Gale, Jr., in the head with a hammer. Anderson he had mt X Tobv Gale Jr in the head with a hammer. Anderson stated that he delivered the blow because he believed that Gale was trying to rob him and was reaching for a firearm. It is undisputed that Gale did not have a firearm at the time. that Gale did not have a firearm at the time.

Anderson then wrapped Gale, who may have still been alive at the time, in trash bags sealed with duct tape. Anderson placed Gale in the trunk of his vehicle and dumped him in a vacant lot in the City of Chester. Anderson then disposed of the hammer in a dumpster behind a market in Chester. He was subsequently arrested by beM Chestera police mX in Chester. officers He was and charged withsubsequently murder. arrested by Chester k police officers kand charged with murder.k *k k * On appeal, Anderson * challenges the sufficiency of the evidence On appeal, Anderson challenges the sufficiency of the evidence supporting his conviction for first-degree murder. In particular, Anderson contends that the evidence cannot, as a matter of law, be

' sufficient sufficienttotoovercome overcomehishisclaimed claimedexcuse excuseofofimperfect imperfectself-defense: self-defense: “As "As[Anderson] [Anderson]actually actuallybut butunreasonably unreasonablybelieved believedthat thatdeadly deadlyforce force was necessary to defend himself, the evidence was sufficient toto was necessary to defend himself, the evidence was sufficient prove proveVoluntary VoluntaryManslaughter Manslaughter(i.e., (i.e.,“imperfect "imperfectself-defense”) self-defense)but but notMurder not MurderofofthetheFirst FirstDegree.”

Degree."Appellant’s Brief,atat6.6.

Appellant'sBrief, However, However,our ourreview reviewofofthetherecord recordreveals revealsaaplethora plethoraof ofevidence evidencetoto support a finding that Anderson killed Gale with malice, and support a finding that Anderson killed Gale with malice, andnot notout out ofan of anactual actualfear fearfor forhis hislife. life. *k *k *k *k *k First, First, the the Commonwealth Commonwealth presented presented evidence evidence of ofanimus animus between between Anderson and Gale. At the time of Gale’s death, Anderson was Anderson and Gale. At the time of Gale's death, Anderson was living with his grandmother, Teresa Bishop. Ratika Lashandra Cruz living with his grandmother, Teresa Bishop. Ratika Lashandra Cruz was was aacare-taker care-takerfor forBishop, Bishop, and and was was atatBishop’s Bishop's home hometoto arrange arrange for services for Bishop on the afternoon of April 19, 2011. She for services for Bishop on the afternoon of April 19, 2011. She testified testifiedthat thatshe she observed observedAnderson Andersontexting texting on onhis his cell cellphone phone and and state “if this nigger come over here I’m going to fuck him up.” N.T., state "if this nigger come over here I'm going to fuck him up." N.T., Trial, Trial, 5/14/2012, 5/14/2012, atat 204.

204. While While CruzCruz testified testified that that she she was was not not explicitly aware of who Anderson was referring to, it was explicitly aware of who Anderson was referring to, it was permissible permissible for for the the jury jury toto infer infer that that Gale Gale was was thethe object object ofof Anderson’s ire, given that Anderson admits that he killed Gale that Anderson's ire, given that Anderson admits that he killed Gale that evenmg. evening.

In In addition, addition, thethe Commonwealth Commonwealth presented presented expert expert testimony testimony that that Gale Gale was was struck strucktwice twice ininthe the head head with with aahammer, hammer, not notjust just once, once, asas claimed by Anderson. Bennett Preston, M.D., testified that Gale had claimed by Anderson. Bennett Preston, M.D., testified that Gale had been been “struck "struck twice twice inin the the head, head, once once toto the the upper upper forehead forehead to to the the right side and once to the right side of the head.” N.T., Trial, right side and once to the right side of the head. N.T., Trial, 5/16/2012, 5/16/2012, atat 37.37. The The injury injury to to the the forehead forehead waswas caused caused by by “the "the rounded, flat end” of the head of the hammer. Id., at 40. The injury rounded, flat end" of the head of the hammer. Id, at 40. The injury to to the the right right side side ofofthe the head head waswas caused caused by by the the claw claw ofofthe the hammer hammer head. Id Either head. Id. Either injury injury would would have have been been enough enough to to immediately immediately incapacitate Gale. See id., at 46. This testimony certainly undercut incapacitate Gale. See id, at 46. This testimony certainly undercut the the credibility credibility of of Anderson’s Anderson's claim claim that that he he struck struck Gale Gale only only once once with the hammer. Evidence of a second blow from the hammer, after with the hammer. Evidence of a second blow from the hammer, after Gale Gale was was already already incapacitated, incapacitated, isis also also sufficient, sufficient, by by itself, itself, to to support a finding that Anderson acted with malice and not in self¬ support a finding that Anderson acted with malice and not in self- defense. defense.

Furthermore, Furthermore, Dr.Dr. Preston Preston opined opined that that Gale Gale was was still still alive alive when when Anderson Anderson placed placed aa garbage garbage bag bag over over his his head. head. See See id., id, atat 45-46.

45 46. Gale Gale had a had a 50/50 chance chance of surviving the injuries to his head head if he had had been been provided provided immediate immediate medical medical treatment. See id., id, at 48. Dr. Preston believed that Gale’s Gale's death was caused by “[b]lunt-force "[b]lunt-force injury to to the head head contributed to by asphyxiation.” asphyxiation." Id., Id, at 50. Based

upon uponthis thisevidence, evidence,even evenififthe thejury juryhad hadbelieved believedthat thatAnderson Andersonacted acted pursuant to an actual belief that Gale was threatening him, the jury pursuant to an actual belief that Gale was threatening him, the jury was entitled to conclude that Anderson’s failure to seek immediate was entitled to conclude that Anderson's failure to seek immediate medical medical attention attention for for Gale Gale established established that that Anderson Anderson acted acted with with malice. malice.

Finally, Finally,the theCommonwealth Commonwealthpresented presentedevidence evidencethat thatAnderson Andersonwent went totogreat greatlengths lengthstotoclean cleanup upand andhide hidethe thecrime crimescene. scene.See, e.g.,N.T., See, e.g., N.T., Trial, 5/15/12, at 45-54; 201-204. Evidence that the defendant Trial, 5/15/12, at 45-54; 201-204. Evidence that the defendant cleaned cleanedthethesite siteofofthe themurder murderininan anattempt attempttotohide hideevidence evidenceof ofthe the crime permits an inference of the defendant’s consciousness of his crime permits an inference of the defendant's consciousness of his own own guilt. guilt. See See Truong, Truong, 36 36 A.3d A.3d 592, 592, 600 (Pa.Super. 2012)(en (Pa.Super. 2012)(en bane). banc).

Viewing Viewing thethe record record asas aa whole, whole, there there was was sufficient sufficient evidence evidence toto support the jury’s verdict that Anderson acted with malice when support the jury's verdict that Anderson acted with malice whenhe he killed killedGale.

Gale.We Wetherefore thereforeconclude concludethat thatAnderson’s Anderson'schallenge challengetotothe the sufficiency of the evidence supporting his conviction merits no sufficiency of the evidence supporting his conviction merits no relief. relief.

See See Superior SuperiorCourt CourtMemorandum MemorandumOpinion Opiniondated datedNovember November26,26, 2013, 2013,supra supra atat*1 *1 and and *3.

3. See See also also Pa.R.A.P. 1925(a) Trial Court Opinion on direct appeal dated June 26, 2013, pp. 11-56, referenced Pa.R.A.P. 1925(a) Trial Court Opinion on direct appeal dated June 26, 2013, pp. 11-56, referenc supra. supra.

III.

III. Timeliness Timeliness

Before Before reachin reachingg the the merits merits of of Defendant’s Defendant's claims, claims, the the timeliness timeliness of of Defendant’s Defendant's petition petitio had had to to be be addressed. addressed. See See Commonwealth Commonwealth v.• Miller, Miller, 102 A.3d A.3d 988, 988, 992 (Pa.Super. (Pa.Super. 2014).

2014). A defendant defendant must must file file aa PCRA PCRA petition petition within within one one (1) ( 1) year year from from the the date date the the judgment judgment of of sentence sentenc becomes becomes final. final. 42 Pa.C.S.

Pa.C.S. §9545(b)(l).

§9545(b)(l). “The "The timeliness timeliness of of aa PCRA PCRA petition petition is is jurisdictional. If a jurisdictional. If PCRA PCRA petition petition is is untimely, untimely, aa court court lacks lacks jurisdiction.” jurisdiction." Commonwealth Commonwealth v.v. Reeves, Reeves, 296 A.3d A.3d 122b, , 1230-31 1230-31 (Pa.Super. (Pa.Super. 2023).

2023). See See also also Commonwealth Commonwealth v. v. Pew, 189 A.3d 486, 488(Pa.Super. 2018) (“All (AII PCRA PCRA petitions petitions must be be filed within one year of the date upon which the judgment of of sentenc sen ten e

becamefinal, became final,unless unlessone oneofofthethestatutory statutoryexceptions exceptionssetsetforth forthinin4242Pa.C.S.

Pa.C.S.§9545(b)(l)(i)-(iii) §9545(b)(l)(i)-(iii) applies.");Commonwealth applies.”); Commonwealthv. v.Kretchmar, Kretchmar,189 189A.A.3d 459,462 3d 459, 462 (Pa.Super. (Pa.Super. 2018) quoting4242Pa.C.S.

2018)quoting Pa.C.S.

§9545(b)(l)(i)-(iii);Commonwealth §9545(b)(l)(i)-(iii); Commonwealthv. v. Staton, Staton, 184 184A.A.3d 954(Pa.Super. 949,954 3d 949, (Pa.Super. 2018) 2018)quoting quotin Commonwealthv. v.Cox, Commonwealth Cox,636 636Pa.

Pa.603, 603,613, 613,146 146A.3d A.3d221, 221,227 227(2016); Commonwealthv.v.Johnson. (2016);Commonwealth Johnson 945A.2d A.2d185, 185,188 188(Pa.Super. (Pa.Super. 2008); 2008);Commonwealth Commonwealthv. v.Davis, Davis,916 916A.2d A.2d1206, 1208-09(Pa.Super. 1206,1208-09 (Pa.Super 2007); and 2007); and Commonwealth Commonwealth v. v. Jackson, Jackson, 3030 A.A.3d 516, 518-19 3d 516, 518-19 (Pa.Super. (Pa.Super. 2011) quoting424 2011) quoting Pa.C.S.§9545(b).

Pa.C.S. 89545(b). AAsentencing sentencingjudgment judgmentbecomes becomesfinal finalfor forpurposes purposesofofthe thePost PostConviction ConvictionRelie:: Relief Act“ "......atatthe Act theconclusion conclusionofofdirect directreview, review,including includingdiscretionary reviewininthe discretionaryreview theSupreme Co SupremeCour: ofofthe theUnited UnitedStates Statesand andthe theSupreme SupremeCourt CourtofofPennsylvania, Pennsylvania,ororatatthe theexpiration expirationofoftime timefor forseeking seekin thereview.” the review." 42 42Pa.C.S.

Pa.C.S.§9545(b)(3).

§9545(b)(3).

TheDefendant’s The Defendant'sinitial, initial,uncounseled, uncounseled,pro prosesePCRA PCRAPetition Petitionrequesting restorationof requestingrestoration ofhs righttotopursue right pursueaanunc nuncpro tunepetition protunc petitionfor forallowance allowanceof ofappeal docketedon appealdocketed onJanuary 22,2014, January22, 2014,w<.s w clearlytimely. clearly timely. See SeeDefendant’s Defendant'spro prose PCRAPetition se PCRA Petitionfiled filedJanuary 22,2014, January22, 2014,(“Prisoner Mailb ("PrisonerMailbcx Rule"where Rule” wherean anincarcerated incarceratedpro prose defendant'sfiling se defendant’s filingdate dateisisdeemed deemedwhen whenititisisplaced placedininthe thehands han ofprison of authorities for prison authorities for mailing.). mailing.). See See also also Commonwealth Commonwealth v.v». Crawford, Crawford, 17 A.3d A.3d 1277, 1277, 1211 and (2011); an (2011); Commonwealth v.v. Wojtaszek, d Commonwealth Wojtaszek, 951 A.2d A.2d 1169, 1169, 1170, 1170, Fn.

Fn. 33 (Pa. (Pa. Super. Super. 2008). T 2008). The PrisonerMailbox Prisoner MailboxRule Rule was was not not applied here due applied here due toto lack lackof ofnecessity. See also necessity. See also Counsel’s Counsel's Amended Amend PCRA Petition PCRA Petition dated dated April 17, 2015; April 17, 2015; and and 42 Pa.C.S.

Pa.C.S. §9545(b)(l)(3).

§9545(b)(1)(3).

When aa PCRA When PCRA petitioner’s direct appeal petitioner's direct rights are appeal rights are reinstated, reinstated, aa subsequent PCRA pleading subsequent PCRA pleadi isis considered considered aa first first PCRA PCRA filing filing for for timeliness timeliness purposes. purposes. Commonwealth Commonwealth v.v. Karanicolas, Karanicolas, 836 A.2d A.

940, 944 940, 944 (Pa.Super. (Pa.Super. 2003) citing generally 2003) citing Commonwealth v.v. Lewis, generally Commonwealth Lewis, 718 A.2d A.2d 1262 1262 (Pa.Supsr. (Pa.Sup 1998); Commonwealth v.• Turner, 1998); Commonwealth Turner, 734 A.3d A.3d 1283, 1283, 1286, 1286, Fn.

Fn. 33 (Pa.Super. (Pa.Super. 2013)(The 2013)(The one-year one-year PCI PC A filing time certain does not begin to run until the appeal nunc tune renders the o filing time certain does not begin to run until the appeal nunc propro judgment tunc renders the judgment o:: sentence final.) sentence final.)

The Supreme Court of Pennsylvania on December 8,2015, The Supreme Court of Pennsylvania on December 8, 2015, denied Defendant Anderson' denied Defendant Anderson’ ; Petition for Allowance of Appeal salient to his convictions' direct appellate review, and upo Petition for Allowance of Appeal salient to his convictions’ direct appellate review, and upon application, subsequently refused reconsideration of its order denying allocatur on application, subsequently refused reconsideration of its order denying allocatur on January 21,21, January 2016. See Commonwealth v. Anderson supra. Hence, after recognizing 2016. See Commonwealth v. Anderson supra. Hence, after recognizing the ninety the ninety (90) (90) dayday perio period for filing a Petition for Writ of Certiorari to the United States Court, the Defendant' SupremeCourt, the Defendant’ s for filing a Petition for Writ of Certiorari to the United States Supreme sentencing judgment at bar became final on March 8, 2016, and the one year PCRA time cloc sentencing judgment at bar became final on March 8, 2016, and the one year PCRA time clocc commenced. See 42 Pa.C.S. §9545(b)(3). See also U.S.Sup.Ct.R. 13.1. To satisfy the Pot commenced. See 42 Pa.C.S. §9545(b)(3). See also U.S.Sup.Ct.R. 13.1. To satisfy the Post Conviction Relief Act's one (1) year filing mandate, Defendant Anderson was thus required to lod Conviction Relief Act’s one (1) year filing mandate, Defendant Anderson was thus required to lodge his PCRA pleadings no later than March 8, 2017. See 42 Pa.C.S. The Defendants §9545(b)(1)(3).The Defendant s his PCRA pleadings no later than March 8, 2017. See 42 Pa.C.S. §9545(b)(l)(3). prose PCRA petition postmarked March 14, 2016, and docketed on March 16, 2016, once agai pro se PCRA petition postmarked March 14, 2016, and docketed on March 16, 2016, once again meets the jurisdictional requirements of the PCRA. meets the jurisdictional requirements of the PCRA.

IV. PCRA_Eligibility Requirements and Legal Standards IV. PCRA Eligibility Requirements and Legal Standards Section 9543 of the PCRA, inter alia, provides to be eligible for relief a defendant m Section 9543 of the PCRA, inter alia, provides to be eligible for relief a defendant mus.

l establish by a preponderance of the evidence that the conviction(s) resulted from one (1) or more establish by a preponderance of the evidence that the conviction(s) resulted from one (1) or more o:: the Act's specifically enumerated errors and/or defects and that such have not been waived. See the Act’s specifically enumerated errors and/or defects and that such have not been waived. See <-2 Pa.C.S. §9543(a)(l)(2)(3). See also Commonwealth v. Banks, 540 Pa. 143, 148-149, 656 A..

PaC S. §9543(a)(l)(2)(3). See also Commonwealth v. Banks, 540 Pa. 143, 148-149, 656 A.2d G

467, 469 (1995) and Commonwealth v. Keaton, 615 Pa. 675, 693, 45 A.3d 1050, 1060 (201 467, 469 (1995) and Commonwealth v. Keaton, 615 Pa. 675, 693, 45 A.3d 1050, 1060 (2012) Pa.C.S. §9544(b). A collateral claim is waived for purposes of the Post Convicti quoting 42 Pa.C.S. §9544(b). A collateral claim is waived for purposes of the Post Conviction quoting Relief Relief Act“ "......ifif Act thepetitioner the petitionercould couldhave haveraised raisedit itbut butfailed failedtotododososobefore beforetrial, trialat , attrial, trialduring , durin unitaryreview, unitary review,ononappeal appealororinina aprior priorstate statepost postconviction convictionproceeding.” proceeding."4242Pa.C.S.

Pa.C.S.§9544(b).

§9544(b).

ToToprevail prevailonona petition a petitionfor forPCRA PCRArelief, relief,based basedononthe theissues issuesraised raisedand andgrounds reliedononbyb groundsrelied DefendantAnderson, Defendant Anderson,hehehad hadthe theburden burdentotoplead andburden pleadand burdenofofproving, proving,bybya apreponderance preponderanceofofthe th evidence,that evidence, thathis hisconviction convictionresulted resultedfrom fromineffectiveness ineffectivenessofofcounsel, which“so counsel,which "soundermined underminedthe th truth-determiningprocess truth-determining processthat thatnonoreliable reliableadjudication adjudicationofofguilt guiltororinnocence innocencecould couldhave havetaken takenplace. place.’ ' 4242Pa.C.S.

Pa.C.S.§9543(a)(2)(ii); §9543(a)(2)(ii);and Commonwealthv.v.Hopkins, andCommonwealth 231A.3d Hopkins,231 A.3d855, 871(Pa.Super. 855,871 2020, (Pa.Super.2020], appealdenied, appeal 663Pa. denied,663 Pa.418, 418,242 242A.A.3d 908(2020).

3d 908 (2020).

The law The lawpresumes presumes counsel counsel has has rendered rendered effective effective assistance, assistance, and and “ " .... . . the the burden burden of demonstratingineffectiveness demonstrating ineffectivenessrests restson on[the defendant]"Commonwealth [thedefendant]” Rivera, 10IOA.3d Commonwealthv.v.Rivera, A.3d127( , , 1279 (Pa.Super. 1279 2010) citing (Pa.Super. 2010) Commonwealth v.v. Thomas, citing Commonwealth 783 A.3d Thomas, 783 A.3d 328, 328, 332 (Pa.Supe-. (Pa.Supe.

2001)(citation omitted).

2001)(citation omitted). To To satisfy satisfy his his oror her her burden, burden, aa defendant defendant must must plead plead and and prove prove by by a ofthe preponderanceof preponderance theevidence evidencethat: that: (1) theunderlying (1)the underlyingclaim claimhas hasarguable arguablemerit; merit;(2) noreasonable (2)no reasonab e basis existed basis existed for for counsel’s counsel's actions actions or or failure failure toto act; act; and and (3) (3) absent absent counsel counsel's s error(s), there isis a error(s), there reasonable probability reasonable thatthe probability that the outcome outcome of ofthe the challenged challenged proceeding would have proceeding would have been been different. differe Commonwealth v.• Spotz, Commonwealth 624 Pa. Spotz, 624 Pa. 4,4, 33-34, 33-34, 84 A.3d A.3d294, 294,312 (2014)(“[A] reasonable probability (2014)("[A] reasonable probability :s aa probability, that isis sufficient probability that sufficient toto undermine undermine confidence confidence in in the the outcome outcome of of the the proceeding.”): proceeding.' Commonwealthv.v. Busanet, Commonwealth 54 A.3d Busanet, 54 A.3d35, 46 (Pa. 35, 46 2012); and (Pa. 2012); Commonwealth v.v. Fulton, and Commonwealth 830 A.2d Fulton, 830 A.2d 56 (Pa. 572 See also 2003). See (Pa. 2003). Commonwealth v.v. Hopkins also Commonwealth Hopkins supra 876 A.3d supra 876 A.3d at at 876 quoting quoting Commonweal^ Commonweal v.v. Chambers, 570 Pa. Chambers, 570 Pa. 3, 3, 22, 22, 887 A.2d A.2d 872, 872, 883 (2002)(“[A] (2002)([A] criminal criminal defendant defendant alleging alleging prejudice prejudi must show must show that that counsel’s counsel's errors errors were were so so serious serious as as to to deprive deprive the the defendant defendant of of aa fair trial, aa trial fair trial, whose result whose result is is reliable.”). Failure to reliable."). Failure to satisfy satisfy any of the any of the three three (3) (3) prongs prongs of of the the test test will will result result in intthe denial denialofofa adefendant’s defendant'sclaim. claim. Id.; Id.,·Commonwealth Commonwealthv.v. Sandusky, Sandusky,203 203A.3d A.3d1033, 1033, 1043 1043(Pa.Supei. (Pa.Supe.

2019),appeal 2019), appealdenied, 654Pa. denied,654 Pa.568, 568,216 A.3d1029 216 A.3d 1029(2019). (2019).

Of Ofcourse, course,“"......counsel counselcannot cannotbe bedeemed deemedineffective ineffectivefor forfailing failingtotoraise raiseaameritless meritlessclaim claim’ ' ororfailing failingtotoperform performaafutile futile act. act. Commonwealth Commonwealthv.v. Fears, Fears, 86 A.A.3d 3d 795, 795, 804 (Pa. (Pa. 2014) 2014)citing citin Commonwealth Commonwealthv.• Washington, Washington, 927 927A.2d A.2d586, 586, 603 (Pa. (Pa. 2007)(Citations 2007)(Citationsomitted); omitted); Commonwealth Commonwealt v.•Loner, 836A.2d Loner,836 A.2d 128, 128, 132 132(Pa.Super. (Pa.Super. 2003)(en 2003)(enbanc). banc).

Finally, Finally, asasaageneral generalrule, rule,“a "alawyer lawyershould shouldnot notbe be held held ineffective ineffective without without first first having having ai opportunity opportunitytotoaddress addressthe theaccusation accusationininsome somefashion.” Commonwealthv.». Colavita, fashion."Commonwealth Colavita, 993 A.2d A.2d 87 87z, , (Pa. (Pa. 2010), 2010), overruled overruledon on other othergrounds, grounds,Commonwealth Commonwealthv.v. Bradley, Bradley, 261 A.3d A.3d 381 (Pa. (Pa. 2021) 2021)

V,Vy._ Ineffective _IneffectiveAssistance Assistance of ofCounsel Counsel Claims Claims

Defendant Defendant Anderson Anderson posited posited five five (5) (5) ineffective ineffective assistance assistance of of counsel counsel claims. claims. First, First, l e averred averred that that trial trial counsel counsel rendered rendered ineffective ineffective assistance assistance by by failing failing to to further further question question aajuror juror who w affirmatively affirmatively responded responded that that because becausethe the underlying underlying circumstances circumstances of ofthe the victim’s victim's killing killing were were dug d related related itit would would be be “difficult, "difficult, if ifnot not impossible” impossible" for for him him “to "to be be aa fair fair and and impartial impartial juror juror should should [he; [h be be selected.” selected." See See N.T.

N.T. 5/1 1/12, pp.

5/11/12, pp. 41-42.

41-42. Other Other than than standing standing up up along along with with four four (4) ( 4) other other membe membe of ofthe thejury jury panel panel after after the the question question was was asked, juror number asked,juror number four four (4) ( 4) was was not not individually individually voir voir direi, dire trial trial counsel counsel did did not not move move to to challenge challenge the the juror juror for for cause, cause, nor nor did did he he utilize utilize aa peremptory peremptory strike strike eliminate eliminate the the juror. juror. Panelist Panelist number number four four (4) (4) ended ended up being being seated as juror juror number two (2) (2) for fortth^

Defendant's trial. See N.T. 5/11/12 at 263; Amended PCRA Petition docketed August 31,202 , N.T. 5/11/12 at 263; Amended PCRA Petition docketed August 31, 2022, Defendant’s trial. See pp. 3-4. pp. 3-4.

Second, the Defendant alleged his trial counsel was constitutionally ineffective for failing t Second, the Defendant alleged his trial counsel was constitutionally ineffective for failing th file a motion to sever his case for trial from his Co-Defendant, Donier White's matter pursuant t file a motion to sever his case for trial from his Co-Defendant, Donier White’s matter pursuant tL Pa.R.Crim.P. 583. See Amended PCRA Petition docketed August 31, 2022, pp. 4-5. See als Pa.R.Crim.P. 583. See Amended PCRA Petition docketed August 31, 2022, pp. 4-5. See aha Commonwealth v. White, No. 5625-11. This issue; however, has not been preserved for appellat Commonwealth V. White, No. 5625-1 1. This issue; however, has not been preserved for appellaj review because it was not in included in the Defendant's Pa.R.A.P. 1925(b) Concise Statement review because it was not in included in the Defendant’s Pa.R.A.P. 1925(b) Concise Statement Matters Complained of on Appeal.3 See Defendant's Statement Pursuant to Pa.R.A.P. 1925 Matters Complained of on Appeal.” See Defendant’s Statement Pursuant to Pa.R.A.P. 1925(d) docketed August 15, 2024. docketed August 15,2024.

Defendant Anderson's third claim related to trial counsel's failure to object during t third claim related to trial counsel’s failure to object during thb Defendant Anderson’s prosecutor's closing argument when he juxtaposed Defendant Anderson and his co-defendants when he juxtaposed Defendant Anderson and his eo-defendant s prosecutor’s closing argument statements with the physical evidence and the medical examiner findings. See Amended PC and the medical examiner findings. See Amended PCRA statements with the physical evidence Petition Docketed August 31, 2022, pp. 5-7 and N.T. 5/17/12, pp. 35-36. The Defendant conten . 5-7 andN.T. 5/17/12, pp. 35-36. The Defendant content s Petition Docketed August 31, 2022, pp that this was a clear violation of Bruton v. United States, 393 U.S. 123, 88 S.Ct 1620, 20 L.Ed. United States, 393 U.S. 123. 88 S.Ct. 1620, 20 L.Ed.ii that this was a clear violation of Bruton v. (1968) and the court's instructions to the attorneys prior to their closing arguments.

676 (1968) and the court’s instmctions to the attorneys prior to their closing arguments.

Next, the Defendant asserted his trial counsel was ineffective for failing to object to anoth ineffective for failing to object to anothei Next, the Defendant asserted his trial counsel was portion of the prosecutor's closing argument where he states that Defendant Anderson's stateme that Defendant Anderson’s statemenl portion of the prosecutor’s closing argument where he states to law enforcement was "so incoherent, so inconclusive, so contradictory that it's not worth t , contradictory that it’s not worth the to law enforcement was “so incoherent, so inconclusive, so paper it's printed on .... and [y]ou can line the cat box with it. It is nothing but lies .... "N.T N. line the cat box with it. It is nothing but lies. ... paper it’s printed on. ... and [y]ou can 5/17/12 at pp. 30-32. PCRA counsel contends such remarks wereinflammatory inflammatoryand andprejudicial prejudicialanc.

5/17/12 at pp. 30-32. PCRA counsel contends such remarks were

warranted warranted an an objection objection by by trial trial counsel. counsel. See See Amended PCRA Petition Amended PCRA docketed August Petition docketed 31, 202 August 31, 2022,, pp. pp. 7-9.

Defendant Defendant Anderson’s Anderson's final final claim claim alleged alleged ineffective assistance of ineffective assistance of his his appellate appellate counsel counsel ffor failing failing to to raise raise the the claim claim on on direct direct appeal appeal that that the the court abused its court abused its discretion discretion in allowing th in allowing ths testimony testimony of of witness witness Ratika Ratika Cruz Cruz who who testified testified that that before before the the victim victim was was killed, killed, while while texting, texting, ths t Defendant Defendant uttered uttered “if "if this this nigger nigger come come over over here here I’m I'm going going to to fuck fuck him him up.” up." N.T. 5/14/12, p. N.T. 5/14/12, p. 201 and and Amended Amended PCRA PCRA Petition Petition docketed docketed August August 31, 31, 2022, 2022, p. p. 9.

9. Before Ms. Before Ms. Cruz Cruz testified, tril 1l testified, tri counsel counsel placed placed his his objection objection to to such such testimony testimony on on the the record record and and asserted asserted that that because because the the Defendai Defend t did not identify identify to whom he was referring, referring, it was speculative speculative and unduly prejudicial rather than th probative. probative. See See N.T.

N.T. 5/14/12, 5/14/12, pp. pp. 153-55.

153-55. The The court court overruled overruled the the objection objection and and the the witness witness testified testifi as as described. described. Direct Direct appeal appeal counsel counsel did did not not pursue pursue this this issue issue on on appeal. appeal.

The The court’s court's analysis analysis of of the the PCRA PCRA issues issues preserved preserved for for appellate appellate review review follows. follows.

VI, VI. Discussion Discussion

VI-A.

VI-A. Alleged Alleged ineffective ineffective assistance assistance of of counsel counsel during during voir voir dire direfor for not not challenging challengingfor for cause cause o exercising exercising aa peremptory peremptory challenge challenge to to eliminate eliminate juror juror number numberfour four (4) (4) from from the the panel panel.

In Defendant Defendant Anderson’s Anderson's Rule Rule 1925(b) 1925(b) statement, statement, he he couches couches the the first first issue issue in in the the following followi manner: manner: Whether Whether the the PCRA PCRA court court erred erred in infinding finding Defendant’s Defendant's trial trial counsel counsel was was not not ineffective ineffective under under the the Sixth Sixth Amendment Amendment to to the the United United States States Constitution Constitution andand parallel parallel provisions provisions of of the the Pennsylvania Pennsylvania Constitution, Constitution, in in allowing allowing Juror Juror #4#4 to to be be seated, seated, as as the the juror juror was was

openlybiased, openly biasedagainst againstthe theDefendant Defendantbased basedononthe thenature natureofof thecase, the case, and in ruling that trial counsel's error was not and in ruling that trial counsel’s error was not prejudicial? prejudicial?

Defendant'sStatement Defendant’s StatementPursuant PursuanttotoPa.R.A.P. Pa.R.A.P.1925(b) docketedAugust 1925(b)docketed August15, 2024-No. 15,2024 - No. 1.1.

The ThePennsylvania Pennsylvaniaappellate appellatecourts courtshave havelong longrecognized recognizedasasfollows followsrelative relativetotothe thejury j selectionprocess: selection process:

The Thetest testfor fordetermining determining whetherwhether a aprospective prospectivejuror jurorshould shouldbebe disqualified disqualified isis whether whether hehe isis willingwilling and and able able toto eliminate eliminate thethe influence of any scruples and render a verdict according to the influence of any scruples and render a verdict according to the evidence,and evidence, andthisthisisistotobebedetermined determinedon onthethebasis basisofofanswers answerstoto and demeanor ... . It questions and demeanor .... It must be determined whether any questions must be determined whether any biases or prejudices can be put biases or prejudices can be putaside on proper aside on properinstruction of the instruction of the court court .... . .. . AA challenge challenge for for cause cause should should be be granted granted whenwhen thethe prospective juror has such a close relationship, familial, financial, oror prospective juror has such a close relationship, familial, financial, situational, situational,with withthe theparties, parties,counsel, counsel,victims, victims,ororwitnesses witnessesthat thatthe the court will presume a likelihood of prejudice or demonstrates aa court will presume a likelihood of prejudice or demonstrates likelihood of likelihood of prejudice prejudice by by his his oror her her conduct conduct and and answers answers toto questions.... The decision on whether to disqualify is within questions .... The decision on whether to disqualify is within the the discretion of the trial court and will not be reversed in the absence discretion of the trial court and will not be reversed in the absence ofaapalpable of palpableabuse abuseof ofdiscretion discretion.... ....

Commonwealthv.v.Lesko, Commonwealth Lesko,609 609Pa.

Pa. 128, 128,242-43, 242-43, 15 15A.3d A.3d345, 345,413-14 413-14(201 1) quoting (2011) Commonwealt quotingCommonwealth v». Wilson, 543 Pa. 429, 442, 672 A.2d 293, 299 (1996) quoting Commonwealth v. Wilson, 543 Pa. 429, 442, 672 A.2d 293, 299 (1996) quoting Commonwealth v. Colson, 507 v. Colson, 507Pe..

P .

440, 440,454, 454,490 490A.2d A.2d 811, 811, 818 (1985), (1985),abrogated abrogatedononother othergrounds, grounds, Commonwealth Commonwealthv.v». Burke, Burke,566 566Pa.

P .

402, 781 A.2d 1136 (2001).

402’ 781 A.2d 1136 (2001).

A A criminal criminal defendant’s defendant'sright rightto to an an impartial impartialjury jury isis explicitly explicitly granted grantedby by Article Article I,I, Section Section ) of of the the Pennsylvania Pennsylvania Constitution Constitution and and the the Sixth Sixth Amendment Amendment of of the the United United States States Constitution.

Constitutio Commonwealth Commonwealth v.v. Ellison, Ellison, 588 Pa. Pa. 1,1, 8,8, 902 A.2d A.2d 419, 419, 423 (2006) (2006) citing citing Commonwealth Commonwealth v.v. Ingber, Ingbet, Pa. Pa. 2, 2, 6, 6, 531 A.2d A.2d 1101, 1101, 1102 1102 (1986). (1986). The The jury jury selection selection process process isis most most certainly certainly crucial crucial to that that right’s right's preservation. Id 588 preservation. Id. 588 Pa. Pa. at at 8,8, 902 A.2d A.2d at at 423. Voir dire 423. Voir dire provides provides counsel counsel the the obviously obvious} requisite requisite opportunity opportunity to to assess assess the the qualifications qualifications of of the the prospective prospective jurors jurors to serve. ItIt isis therefoie to serve. therefo e appropriate appropriate to to use use such such an an examination examination to to disclose disclose fixed fixed opinions opinions or or to to expose expose other other reasons reasons for f

disqualification. Commonwealth disqualification. Commonwealthv. v.Drew, 500Pa.

Drew,500 Pa.585, 585,588, 588,459 459A.2d A.2d318, 320(1983) 318,320 citin (1983)citing Commonwealthv.v.Johnson, Commonwealth 452Pa.

Johnson,452 Pa.130, 130,134, 305A.2d 134,305 A.2d5,5,7 7(1973). (1973).

ItItisiswell-settled well-settledthat thatthe thesole solepurpose purposeofofthe thequestioning questioningofofprospective prospectivejurors jurorsunder undervoir voirdir dir? isistotosecure securea acompetent, competent,fair, fair,impartial impartialand andunprejudiced unprejudicedjury. Commonwealthv.v.Ellison jury. Commonwealth supra58581 Ellisonsupra Pa.atat8,8,902 Pa. 902A.2d A.2datat423-24 423-24citing citingCommonwealth Commonwealthv.v.Drew Drewsupra 500Pa. supra500 Pa.atat589, A.2datat3232) 459 A.2d 589,459 Commonwealthv.».McGrew, citingCommonwealth citing 375Pa.

McGrew,375 Pa.518, 518,525, 525,100 100A.2d A.2d467, 467,470 (1953). Whilea alawyer (1953). While lawy should shouldbebepermitted permittedconsiderable considerablelatitude latitudeon onvoir voirdire, dire,such suchinquiries inquiriesare areconfined confinedbybyrelevance relevancetit disclosingthe disclosing thelegal legalqualifications qualificationsofofaajuror andwhether jurorand whetherthe thejuror hasformed jurorhas formedaafixed fixedopinion opinioncr r maybe may beotherwise otherwisesubject subjecttotostriking strikingfor forcause. cause. Id. Id. See Seealso 42Pa.C.S. also42 Pa.C.S.§§4502 and4503.

§§4502and 4503.

Regarding Regardingjury juryselection selectionininaacriminal criminaltrial, trial,the theRules Rulesof ofCriminal CriminalProcedure Proceduredirect directthat thattrirl tri 1 courts use courts use juror juror information information questionnaires questionnaires inin conjunction with the conjunction with the voir voir dire examination cf dire examination prospectivejurors. prospective jurors. See Pa.R.Crim.P. 631(E) See Pa.R.Crim.P. 631(E) and and Pa.R.Crim.P. Pa.R.Crim.P. 632.

632. The The questionnaire serves to questionnaire serves facilitate facilitateand andexpedite expeditevoir voirdire direand andisistotobe beused usedasasan anaid aidininthe theoral oralquestioning questioningof ofpotential potentialjuror juror>. .

By By providing providing the the trial trialjudge judge and and attorneys attorneys with with basic basic background background information information about about the the possible possib jurors and eliminating jurors and the need eliminating the need for for many many commonly commonly asked asked questions, the informational questions, the infonnation questionnaires questionnaires of ofvenirepersons venirepersons enable enable the thejury jury selection selectionprocess processtoto proceed proceed more more orderly orderly and ti e andtin efficient. efficient. Nothing Nothing in in these these rules rules detailing detailing the the use use of of potential potential juror juror questionnaires questionnaires isis intended intended 1c preclude oral questioning preclude oral during voir questioning during voir dire. dire. See Pa.R.Crim.P. 631 See Pa.R.Crim.P. 631 Comment Comment and and 632 Comment.

Comment. See S also Commonwealth also Commonwealth v.v. Ellison Ellison supra 588 Pa. supra 588 Pa. at at 8-9, 8-9, 902 A.2d A.2d at at 423-24.

423-24. Moreover, Moreover, juror jur information information questionnaires questionnaires are are to to be be used used in in conjunction conjunction with with the the verbal verbal examination examination of of the t prospective prospective jurors and are jurors and are not not to to be be used used as as aa substitute substitute for for the the equally equally necessary necessary oral oral inquiries. inquiries. See S Pa.R.Crim.P. 631(E) Pa.R.Crim.P. and Pa.R.Crim.P. 631(E) and Pa.R.Crim.P. 632(D).

632(D).

ItItisiswell-settled well-settledPennsylvania Pennsylvanialaw lawthat thatthe thescope scopeof ofvoir voirdire direisiswithin withinthe thesound sounddiscretion discretio of ofthe thetrial trialjudge. judge. Id. Id 588 588Pa.

Pa.atat9,9,902 A.2d A.2datat424 424citing citingCommonwealth Commonwealthv.v.McGrew McGrewsupra supra375 375Pe.

P . atat526, 526, 100 100A.2d A.2datat471.

471. “The "Theopportunity opportunitytotoobserve observethe thedemeanor demeanorof ofthe theprospective prospectivejuror jurorand andthth; tenor tenorof ofthe thejuror’s juror'sanswers answers isisindispensable indispensabletotothe thejudge judgeinindetermining determiningwhether whetheraafair fairtrial trialcan canb b; had had inin the the community. community. Claims Claims of ofimpartiality impartiality by by prospective prospective jurors jurors are are subject subject toto scrutiny scrutiny for f credibility credibility and and reliability reliability as as isis any any testimony, testimony, and and the thejudgment judgment of ofthe the trial trial court court isis necessarily necessaril accorded accordedgreat greatweight.” weight." Commonwealth Commonwealthv.v. Bachert, Bachert,499 499Pa.

Pa. 398, 409, 453 A.2d 398,409,453 A.2d931, 937 (1982).

931,937 (1982).

These These decisions decisions of ofthe the trial trialjudge judge concerning concerning voir voir dire dire will will therefore thereforenot notbe bereversed reversedin in tht 3 absence absence of of“palpable "palpable error.” error." Commonwealth Commonwealth v.• Ellison Ellison supra supra 588 Pa. Pa. atat 9,9, 902 A.2d A.2d atat 424 citing citin Commonwealth Commonwealth v.». McGrew McGrew supra supra 375 Pa. Pa. atat 526, 526, 100 A.2d A.2d atat 471.

471.

ItIt must must be beremembered remembered the thepurpose purpose of ofthe the voir voir dire dire examination examination isisto toprovide provide an an opportunity opportuni to to counsel counsel to to assess assess the the qualifications qualifications of ofprospective prospectivejurors jurors to to serve. serve. Commonwealth Commonwealth v.v. Drew Drew supra sup Pa. Pa. at at 588, 588, 459 A.2d A.2d at at 320.

320. ItIt isis thus thus appropriate appropriate to to use use such such an an examination examination to to disclose disclose fixed fix opinions opinions or or to to expose expose other other reasons reasons for for disqualification. disqualification. Commonwealth Commonwealth v.v. Ingber Ingber supra supra 516 Pa. Pa. ill 6, 6, 531 A.2d A.2d at at 1103. Hence, 1103. Hence, the the qualification qualification inquiries inquiries must must be be directed directed at at ascertaining ascertaining whether whether tit e venireperson venireperson isis legally legally competent competent to to serve serve and and capable capable of of rendering rendering aa fair, fair, impartial impartial and and unbiased unbias verdict. verdict. Id. Id. citing citing Commonwealth Commonwealth v.v. Johnson Johnson supra supra 452 Pa. Pa. at at 130, 130, 305 A.2d A.2d at at 5.5. See See also also 42 Pa.C.S.

Pa.C.S. §§4502 §§4502 and and 4503.

4503. The The question question relevant relevant to to aa determination determination of of qualification qualification generally generally is whether whether any any biases biases or or prejudices prejudices can can be be put put aside aside upon upon the the proper proper instruction instruction of of the the couit co Commonwealth v.v. Karenbauer, Karenbauer, 552 552 Pa. 420, 420, 438, 438, 715 A.2d A.2d 1086, 1086, 1094 1094 (Pa. (Pa. 1998); 1998); Commonweal^ Commonweal v.v. England, 474 Pa. Pa. 1, 1, 7, 7, 375 A.2d A.2d 1292, 1292, 1296 1296 (Pa. (Pa. 1977).

1977).

Sucha principle Such a principleofof law law recognizes recognizes that that thethe frailtyofof frailty human human nature nature whichat at which times times nurture nurture ; improvident improvident thoughtcan thought can bebe rehabilitated rehabilitated byby thethe interventionofof properintervention proper thethe trialcourt, trial court,asasdiscussed discusse in the appellate courts. in the appellate courts.

AsAswewerecognized recognizedabove, above,thethepurpose purposeofof thethevoir voirdire direexamination examinationis is totodisclose disclosequalifications qualificationsororlack lackofofqualifications qualificationsofofa juror a jurorand andinin particular to determine whether a juror has formed a fixed opinion asas particular to determine whether a juror has formed a fixed opinion totothe theaccused’s accused'sguilt guiltororinnocence. innocence.The Thelaw lawrecognizes recognizesthat thatit itwould would bebeunrealistic unrealistictotoexpect expectjurors jurorstotobebefree freefrom fromallallprejudices, prejudices,a afailing failing common to all human beings. We common to all human beings. We can only attempt can only to have them attemptto have them put put aside those prejudices in the performance aside those prejudices in the performance of their duty, the of their duty, the determination of guilt or innocence. We therefore determination of guilt or innocence. We therefore do not expect do not expecta a tabularosa tabula rosa[sic] [sic]but butmerely merelya amindmindsufficiently consciousofofitsitssworn sufficientlyconscious sworn responsibility and willing to attempt to reach a decision responsibility and willing to attempt to reach a decision solely on the solely on the factspresented, facts presented,assiduously assiduouslyavoiding avoidingthe theinfluences influencesofofirrelevant irrelevant factors. factors.

Commonwealthv.v.Drew Commonwealth Drewsupra supra500 500Pa.

Pa.atat589, 589,459 459A.2d A.2datat320 320quoting Commonwealthv.v.Johnson quotingCommonwealth Johnso supra 452 Pa. at 134-35, 305 A.2d at 7. supra 452 Pa. at 134-35, 305 A.2d at 7.

Thepurpose The purposeofofvoir voirdire direisistotofacilitate facilitatethe theempaneling empanelingofofa a "competent, fair,impartial, competent, fair, impartial,and unprejudicedjury” unprejudiced andaatrial jury"and trialcourt’s court'sdiscretion discretionconcerning thescope concerningthe scopeofofvoir voirdire diremust mustrelatedly relatedlybe consideredininlight considered lightofofthe thefactual factualcircumstances circumstancesofofaaparticular criminalepisode.” particularcriminal Commonweal episode." Commonwealth v.v. Holt, Holt, 273 A.3d A.3d 514, 514, 546 546(Pa. (Pa. 2022) 2022) quoting Commonwealthv.v. Proctor, quotingCommonwealth Proctor, 526 526Pa.

Pa. 246, 246,257, 257, 585 A.2d454, A.2d 454, 460 (1991) and Commonwealth (1991) and Commonwealth v.• England supra474 Englandsupra 474Pa.

Pa. atat6,6, 375 A.2d A.2datat 1295.

1295. Tie T breadth of breadth ofsuch such scope rests in scope rests inthe the sound sound discretion discretion of ofthe thetrial trial court, court, whose whose decisions decisions will will not notbe reversed on reversed on appeal absent palpable appeal absent error. Commonwealth palpable error. Commonwealth v.v. Holt Holt supra 273 A.3d supra 273 A.3d atat 547 citirg citi Commonwealth v.». Bomar, Commonwealth Bomar, 573 573 Pa. 426, 456, Pa. 426, 456, 826 A.2d A.2d 831, 831, 849 (2003) (2003) citing citing Commonwealth Commonwealth p. 563 Pa. 1, 27, 757 A.2d 859, 872 (2000).

Bridges, 563 Bridges, Pa. 1, 27, 757 A.2d 859, 872 (2000).

During the voir During the voir dire, the court dire, the court instructed instructed the the jury jury panel that as panel that as itit relates relates to to principles oflaw principles of 1 all juries all must follow juries must follow the the judge’s instructions. N.T. judge's instructions. N.T. 5/1 5/11/12, 21. In p. 21.

1/12, p. In such such regard, regard, the the court court asked ask d the thejurors jurorstotorespond respondtotoaaseries seriesof ofquestions questionsand andrespond respondaffirmatively affirmativelyby bystanding standingand andidentifying identify in themselves themselvesby byjuror jurornumber numberininorder ordertotoeffectuate effectuatefurther furtherindividual individualquestioning questioningififdeemed deemednecessary necessat by bythe thecourt courtand andcounsel. counsel. See SeeN.T.

N.T. 5/1 1/12, pp.

5/11/12, pp.24-44; 24-44;and andId., Id,pp. pp.44-244 44-244(follow-up (follow-upquestioning] questioning . .

During During the thepreliminary preliminary questioning questioning of ofthe the panel, panel,juror jurornumber numberfour four(4) (4) and andfour four(4) (4) other oth jurors jurorsstood stoodup uptotoindicate indicatethat thatbecause because“there "theremay maybe be evidence evidencepresented presentedatattrial trialthat thatthe thekilling killingof Mr. Toby Mr. Toby Gale Gale was was related related either either toto the the use use and and oror the the sale sale of ofdrugs drugs . . . that ... that such such circumstances circurnstanc would wouldmake make itit difficult, difficult, ififnot not impossible impossible ...... toto be be aa fair fair and andimpartial impartialjuror juror ...” ... " N.T.

N. T. 5/1 1/12, pp.

5/11/12, p 41-42.

41-42. Juror Jurornumber numberfour four (4) (4) did didnot notstand standfor forany any of ofthe the court’s court's other otherquestions questionstotothe thepanel. panel. Witi Wit the the subsequent subsequent individual individual voir voir dire dire of ofjurors jurors who who stood stood up up for for any any of ofthe the court’s court's questions, questions,jurcr jur r number number four four (4) ( 4) apparently apparently and and inexplicably inexplicably was was not not questioned questioned further. further.

Without Without benefit benefit of offollow-up follow-up questions questions from from either either the the court court or or attorneys, attorneys,juror juror number number foir fo (4) (4) ultimately ultimately was was placed placed on on the thejury jury as as juror juror number number two two (2). (2). Neither Neither the the prosecutor prosecutor nor nor defense defen e counsel counsel challenged challenged the thejuror juror atat issue issue for for cause cause nor nor did did they they utilize utilize one one of oftheir theirperemptory peremptory challenge challeng s to to remove remove the the juror. juror. See See N.T.

N.T. 11/14/12, 11/14/12, p.p. 263.

263. The The prosecutor prosecutor and and defense defense counsel counsel for for each ea defendant defendant accepted accepted the thejury jury as as being being properly properly selected selected and and seated. seated. Id. Id.,, p. p. 264.

264. Along Along with with the the othei oth jurors jurors selected, selected, now now designated designated juror juror number number two two (2) (2) was was administered administered the the oath oath and and sworn sworn in in as as a juror, juror, promising promising to to decide decide the the case case fairly fairly and and impartially. impartially. See See N.T.

N.T. 5/14/12, 5/14/12, p. p. 17 and and Pa.R.Crim.?

Pa.R.Crim.

640(B)(“You 640(B)(You do do solemnly solemnly swear swear by by Almighty Almighty God God ... [or] ... [or] [.[.. .. do do declare declare and and affirm] affirm] that that you you will w1 well well and and truly truly try try the the issue issue joined joined between between the the Commonwealth Commonwealth and and the the defendant(s), defendant(s), and and aattrue verdict verdict render render according according to to the the evidence.”). evidence."). The The Defendant’s Defendant's trial trial counsel, counsel, Scott Scott P. P. Galloway Gallowa Esquire, who the court knows to to be a capable, experienced criminal defense attorney, and one wk w is well-versed in the Delaware County jury selection process had no longer retained his case file or

notesfrom notes from juryselection jury selectionsome sometwelve twelve(12) (12)years yearsearlier. earlier.HeHehad hadnonoindependent recollectionofofth independentrecollection thi ; jurorand juror andcould couldnot notrecall recallanything anythingout outofofthe theordinary withthe ordinarywith thejuror. SeeN.T. juror.See N.T.11/8/23, 16-3 , 11/8/23,pp.pp.16-35, 48-53.

48-53.

"Exceptas.as.otherwise “Except otherwiseprescribed prescribedbybygeneral generalrule, rule,errors errorsand andomissions omissionsininthe theselection selectionof jurors......shall jurors shallnot notconstitute constitutegrounds groundstotoset setaside asideany anyjury verdictininany juryverdict civilororcriminal anycivil criminalmatter matteror totoarrest, arrest,reverse, reverse,open openororstrike strikeany judgmententered anyjudgment enteredonona ajury andthe verdict,and juryverdict, thetrial trialbybyjury anditsi juryand renditionofofa averdict rendition verdictininany anymatter mattershall shallconstitute constitutea awaiver waiverofofallallsuch sucherrors errorsand andomissions.” omissions." 424 Pa.C.S.§4527.

Pa.C.S. §4527. Prospective Prospectivejuror jurornumber numberfour four(4) (4)may havecommenced mayhave commencedvoir voirdire direwith witha abelief beliefth tht t thefacts the factsofofthe thecase casecould couldbebedifficult difficultfor forhim; him;however, however,heheultimately committedwithout ultimatelycommitted withoutan/ an expressedreservation expressed reservationororequivocation equivocationtotocarrying carryingout outhis hisoath oathasasaajuror. juror. AAprospective prospectivejuror juror's s viewsare personalviews personal areof ofno nomoment momentunless unlessthese theseopinions opinions“ " . ... . aresosodeeply . are embeddedasastotorende deeplyembedded rend r r thatperson that personincapable ofaccepting incapableof andapplying acceptingand thelaw applyingthe lawasasgiven givenby bythe thecourt. court." Commonwealth Commonwealth1’.

Holtsupra Holt 273A.3d supra273 A.3d514, 514,547 547(2022) (2022)quoting Commonwealthv.v.England quotingCommonwealth Englandsupra supra474 474Pa.

Pa.atat375 A.

375A.2d atat 1296.

1296. “So "Solong longasasthe thejuror jurorisisable ableto, to,intends intendsto, to, and andeventually does,adhere eventually does, adheretotothe theinstructions instructio onthe on thelaw lawasaspropounded thetrial bythe propoundedby trialcourt, court,he heororshe sheisiscapable ofperforming capableof thejuror's performingthe juror'sfunction function'” Commonwealth v.v. Holt Commonwealth Holtsupra 273 A.3d supra 273 A.3d atat 547 quoting Commonwealth v.v. England quoting Commonwealth Englandsupra 375 A.2d supra 375 A.

at 1296. at 1296.

Moreover, our Moreover, our law law presumes that aa juror presumes that followed the juror followed the trial trial courts court's legal legal instructions instructio Commonwealth v.v. Holt Commonwealth Holt supra 273 A.3d supra 273 A.3d at 547-48 citing at 547-48 Commonwealth v.v. Robinson, citing Commonwealth Robinson, 581 Pa. Pa. 154 244, 864 A.2d 244, 864 A.2d 460, 513 (2004) 460, 513 and Commonwealth (2004) and Commonwealth v.v. Tedford, Tedford, 598 Pa. Pa. 639, 639, 700, 700, 960 A.2d A.2d 1,1, ; > (2008). In its (2008). In its final final charge to the charge to thejury, the court jury, the court emphasized emphasized that that the the jurors jurors were were without without fail fail to to acce acce r and follow and follow his his rulings and instructions rulings and instructions on on the the law, law, N.T.

N.T. 5/17/12, 5/17/12, p. p. 50; 50; to to be be true true to to the the solemn solemn oa.h oa , theytook they tooktototrytrythe thecase casefairly fairlyand andimpartially, N.T.Id.Id.atat54; impartially,N.T. arriveatata aproper 54;arrive verdictbybyfairly properverdict fairl, , justly,and justly, andimpartially impartiallyfinding findingthe thetrue truefacts factswithout withoutbeing beingswayed sympathyororprejudice swayedbybysympathy prejudiceofofany an kindororinfluenced kind influencedbybyanything anythingoutside outsideofofthe theevidence evidencepresented andthe presentedand thelaw lawasasinstructed instructedbybythth3 court, N.T.IdIdatat95.; court,N.T. 95.;and andtheir theirdeliberations deliberationstotobebefree freeofofbias, bias,prejudice, prejudice,ororpartiality, N.T.Id.Idst partiality,ininN.T.

103.

103.

Thereisisabsolutely There absolutelynonoindication indicationthat thatthe thejuror juroratatissue issuehad hadany anydifficulty difficultyfollowing t followingths instructionsofofthe instructions thecourt. court.Nor Noratatany anytime timeduring duringthe theDefendant’s Defendant'strial trialdid didthe thejuror juroratatissue issueexpress expre anyreservations any reservationsregarding regardinghis hisability abilitytotoserve serveasasa afair fairand andimpartial impartialjuror. juror. Despite PCRAcounsel’s DespitePCRA counsel']s cogentargument, cogent argument,the theprejudice prejudicerequired requiredfor forthe thegrant grantofofPCRA PCRArelief reliefcannot cannoton onthis recordbebefound. thisrecord faun .

VI-B.

VI-B. Ineffective Ineffectiveassistance assistanceof ofcounsel for failing counsel/or Jailingtotoobject objecttotothe theprosecutor’s prosecutor'spurported purported Bruton violation in his closing argument.

Bruton violation in his closing argument.

Defendant Anderson Defendant Anderson contends contends he he was was denied denied the the effective effective assistance assistance of of counsel counsel when wh withoutan without anobjection, theprosecutor objection,the allegedlyviolated prosecutorallegedly violatedthe thefoundational foundationalreasoning reasoningunderpinning t underpinningthe Brutondecision Bruton decisionby byusing Co-DefendantWhite’s usingCo-Defendant White'sstatement statementasasevidence evidenceagainst (Anderson). StS e him(Anderson). againsthim Defendant's Amended Defendant’s AmendedPCRA PCRA Petition, Petition, pp. 5-7; and pp. 5-7; andDefendant’s Defendant's Memorandum Memorandum of ofLaw, Law, pp. 13-1 pp. 13-13.

See also See also Bruton Bruton v.v. United UnitedStates States supra supra 391 U.S. U.S. at at 88 S.Ct. S.Ct. 1620.

1620. This This court court disagrees. disagrees.

In his In his 1925(b) l 925(b) statement statement of oferrors, errors, Defendant Defendant questions questions

[wfhether the PCRA [w]hether the PCRA Court Court erred erred in infinding finding that that Defendant’s Defendant's trial trial counsel was not ineffective under the Sixth Amendment to the counsel was not ineffective under the Sixth Amendment to the United United States Constitution States Constitution andand parallel provisions of parallel provisions of the the Pennsylvania Pennsylvania Constitution, in failing to object to the closing argument Constitution, in failing to object to the closing argument of of the the during which the prosecutor argued that the prosecutor, during which the prosecutor argued that the statement prosecutor, statement of ofco-defendant co-defendantDonier Donier White, White, redacted redactedtotoreplace replaceany anyreference referencetoto Defendant DefendantAnderson Anderson by byname, name,proved provedDefendant DefendantAnderson Anderson's’s guilt guilt of First Degree Murder? of First Degree Murder?

Defendant’s Defendant'sStatement StatementPursuant PursuanttotoPa.R.A.P. Pa.R.A.P. 1925(b) docketed 1925(b) docketedAugust August15, 15,2024 - No. 2.2.

2024--No. Regarding RegardingBruton Brutonsupra, supra, the the Superior SuperiorCourt Courthas hasopined: opined: In InBruton, Bruton, the theUnited UnitedStates States Supreme SupremeCourtCourtheld heldthat thataanon-testifying non-testifying co-defendant's co-defendant'sconfession, confession,which whichimplicates implicatesanother anotherdefendant defendantininthe the charged offense, is inadmissible against the defendant because itit charged offense, is inadmissible against the defendant because violates violateshis his Sixth SixthAmendment Amendmentright righttoto confront confrontand andtoto cross-examine cross-examine any witnesses testifying against him. However, the Supreme Court any witnesses testifying against him. However, the Supreme Court subsequently subsequentlyheldheldthat thatthetheConfrontation ConfrontationClause Clauseisisnot notviolated violatedby bythe the admission of a non-testifying co-defendant's confession where the admission of a non-testifying co-defendant's confession where the statement statementisis redacted redacted toto eliminate eliminate anyany reference reference toto the the defendant defendant and and is accompanied by a limiting instruction. is accompanied by a limiting instruction.

Commonwealth Commonwealth v.v. Freeman, Freeman, 128 A.3d A.3d 1231, 1231, 1244 1244 (Pa.Super. (Pa.Super. 2015) 2015) citing citingBruton Bruton v.v. United UnitedStates Stat supra 391 U.S. at 88 S.Ct. 1620. See also Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 supra 391 U.S. at 88 S.Ct. 1620. See also Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 9 L.Ed.2d 176(1987).

L.Ed.2d 176 (1987).

In In examining examining issues issues surrounding surrounding aa co-defendant’s co-defendant's confession confession and and testimony testimony presented presented atat a joint joint trial trial about about the the same, same, the the Pennsylvania Pennsylvania Supreme Supreme Court Court has has found: found: ‘The 'The Confrontation Confrontation Clause Clause guarantees guarantees aa criminal criminal defendant defendant the the right right to cross-examine witnesses. Richardson v. Marsh, 481 U.S. 200, 206 to cross-examine witnesses. Richardson v. Marsh, 481 U.S. 200,206 [107 [107 S.Ct. S.Ct. 1702, 1702, 95L.Ed.2d L.Ed.2 176] 176] (1987). (1987). Ordinarily, Ordinarily, aawitness witness whosewhose testimony is introduced at a joint trial is not considered a witness testimony is introduced at a joint trial is not considered a witness ‘against’ 'against' aa defendant defendant if ifthe thejury jury isis instructed instructed to to consider considerthethe testimony testimony only against a co-defendant. This principle is in accord with the only against a co-defendant. This principle is in accord with the well- well- established established presumption presumption that thatjurors jurors will will abide abide by by their their instructions. instructions. In In Bruton, however, the United States Supreme Court recognized that Bruton, however, the United States Supreme Court recognized that ‘there 'there are are some some contexts contexts inin which which the the risk risk that that thethe jury jury will will not, not, oror cannot, follow instructions is so great, and the consequences of failure cannot, follow instructions is so great, and the consequences of failure so so vital vital to to the the defendant, defendant, that that thethe practical practical andand human human limitations limitations of of the the jury jury system system cannot cannot be be ignored.’ ignored.' Bruton Bruton [supra] [supra] 391391 U.S. U.S. at at 135 [88 [88 S.Ct. S.Ct. 1620].

1620]. Accordingly, Accordingly, ‘[t]he'[t]he Bruton CourtCourt heldheld that, that, ifif aa non¬ non- testifying testifying co-defendant's co-defendant's confession confession directlydirectly and and powerfully powerfully implicates the the defendant in in the the crime, thenthen an instruction instruction to to the the jury to consider the evidence only against the co-defendant is insufficient, insufficient, essentially as as aa matter of law, to protect the defendant's defendant's confrontation rirights.' ghts.’ Commonwealth v. Brown, [592 Pa. 376[, 390]] 925 A.2d A.2 147, 157(Pa. 157 (Pa. 2007) 2007)(citing (citing Bruton[supra] Bruton [supra]391 391U.S.

U.S.at at135-36 135-36[88[88S.Ct. S.Ct. 1620]).

1620]).

The The UnitedStates United StatesSupreme Supreme CourtCourt examined examined thethe perpersese Brutonrule Bruton rulein in Richardson, supra, Richardson, supra, and emphasized its narrow scope. Therein, thethe and emphasized its narrow scope. Therein, Courtheld Court heldthat thatthethe‘Confrontation 'ConfrontationClause Clauseis isnot notviolated violatedbybythethe admission of a non-testifying co-defendant's confession admission of a non-testifying co-defendant's confession with witha proper a proper limiting instruction when .. . the confession is redacted limiting instruction when ... the confession is redacted to eliminate to eliminate notonly not onlythe thedefendant's defendant'sname,name,but butany referencetotohishisororher anyreference her existence.' Richardson, 481 U.S. at 211 [107 existence.’ Richardson, 481 U.S. at 211 [107 S.Ct. 1702]. S.Ct. Consistent 1702].Consistent with the High Court's pronouncement and with the High Court's pronouncement and our own line our own lineofof cases,wewe cases, have held that substituting the neutral phrase have held that substituting the neutral phrase ‘the guy 'the or 'theother ’ or ‘the guy' other forthethedefendant’s guy'for guy’ defendant'sname nameisisananappropriate redaction. See appropriateredaction. See Commonwealth v. Travers, [564 Pa. 362, 372-73], Commonwealth v. Travers, [564 Pa. 362, 372-73], 768 A.2d 845, 851 768 A.2d 845, 851 (Pa. 2001).' (Pa. 2001).’

Commonwealthv. v.Freeman Commonwealth Freemansupra supra128 128A.3d A.3datat1244 quotingCommonwealth 1244quoting Commonwealthv. v.Cannon, Cannon,2222A.A.3 210, 217-18 (2011).

210,217-18 (2011).

Commonwealthv.v.Freeman, InInCommonwealth Freeman,the theSuperior Courtheld SuperiorCourt heldthat thatthe thereference referencetotothe thedefendart defend asas“the "thefirst firstguy” and/or“the guy"and/or "thesecond secondguy” guy"was wasnot notininerror errorprovided thetrial providedthe trialcourt courtdirected directedthe thejur/ j thatthe that theconfession confessionwas wastotobebeused used solely solelyasas evidence evidenceagainst thedefendant againstthe defendantthat thatproffered t profferedthe statement and statement and not not soso considered considered against against his his co-defendant. Id. 128 co-defendant. Id. 128 A.3d A.3d atat 1244. See also 1244. See al Commonwealth v.». Travers Commonwealth Traverssupra, supra; Commonwealth Commonwealth v.v. McGlone, McGlone, 716 716A.2d A.2d 1280, 1280, 1286 1286 (Pa.Supe:. (Pa.Supe.

andPa.SSJI(Crim) 1998);and 1998); 3.12. These Pa.SSJI(Crim)3.12. Thesereferences referencestoto“the "theother otherperson” person"ororsimilar similargeneric genericpronours prono1 [s areclearly are notimproper clearlynot improperasasthe the same samehas has been beenheld heldtotobe bepermissible permissibleso so long longasasthe thecourt courtinstruc instrucs the jury the jury toto consider consider such such testimony only inin regard testimony only regard toto the the defendant defendant who who uttered uttered the the statement. stateme Commonwealth v.v. Freeman Commonwealth Freeman supra supra 128 128A.3d A.3datat 1244 quotingCommonwealth 1244 quoting Commonwealthv.v. Cannon Cannonsupra, supra, 22 A.3d at 217-18.

A.3dat217-18.

Defendant Anderson Defendant Anderson and and Co-Defendant Co-Defendant White White were were both both charged charged under under their their respective respecti information based information based on on their their alleged involvement in alleged involvement in the the murder murder of of Toby Toby Gale, Gale, their their supposed supposed friend. frien

and andsubsequent subsequentdisposal disposalof ofthe thedeceased’s deceased's(Mr. (Mr.Gale) Gale)body. body. Counsel Counselwith withassistance assistancefrom fromthe thecour:, co , crafted craftedan anunderstanding understandingthrough throughwhich whichthe thestatements statementsof ofeach eachdefendant defendantwere wereredacted. redacted. Copies Copiescf each eachDefendants’ Defendants'redacted redactedstatements statementsasasagreed agreedupon uponby bycounsel counselwere weremade madepart partof ofthe therecord. record. See Se N.T.

N.T. 5/15/12, 5/15/12, pp. pp. 180-81 180-81 and and 188-89 188-89 ---Commonwealth Commonwealth Exhibits Exhibits C-31 C-31 through through C-34; C-34; and andN.I'.

N.

5/16/12, 5/16/12,pp. pp. 119-22, 119-22, 126-29 - Commonwealth Exhibits 126-29-Commonwealth ExhibitsC-41 C-41 through throughC-44.

C-44.

Initial Initial statements statements were were provided provided toto Chester Chester City City Police Police Detective Detective James James Nolan Nolan (now (no Delaware Delaware County County Chief Chiefof ofthe the District DistrictAttorney’s Attorney's Criminal Criminal Investigation Investigation Division Division (CID)) (CID))on onAprl April 21, 21, 2011.

2011. The The following following day day (April (April 22, 22, 2011) 2011) both both defendants defendants gave gave more more detailed detailed statements statements to Delaware Delaware County County CID CID Homicide Homicide Detective Detective Michael Michael Jay. Id. Jay. Id.

Recognizing Recognizing the the testimony testimony substituting substituting Defendant Defendant Anderson Anderson as as “the "the other other person” person" or or “he "h": during during the the evidentiary evidentiary presentation presentation of ofthe the co-defendant’s co-defendant's statement statementper per Mr. Mr. White Whitehas hasbeen beenheld held by the the appellate appellate courts courts to to be be an an acceptable acceptable redaction redaction and and this this court court relatedly relatedly charged charged the thejury jury with with the relevant, relevant, requisite requisite instruction instruction limiting limiting its its consideration consideration of ofCo-Defendant Co-Defendant White’s White's statement statement only only Io the the question question of ofhis his guilt, guilt, these these references references were were constitutionally constitutionally proper. proper. Commonwealth Commonwealth v.v. Freeman Freem supra supra 128 A.3d A.3d at at 1244 1244 quoting quoting Commonwealth Commonwealth v.v. Cannon Cannon supra supra 22 A.3d A.3d at at 217-18; 217-18; Cf Commonwealth Commonwealth v.v. Travers Travers supra supra 564 Pa. Pa. at at 369, 369, 768 A. 2d at A.2d at 849.

849. See See also also Pa. Pa. SSJI(Crim) SSJl(Crim) 3.12.

3.12.

The The court court while while charging charging the the jury jury provided, provided, inter inter alia, alia, the the following following instruction: instruction: The The Court: Court: ... Regarding Regarding each each [defendant} [defendant] you you may may not not consider any any statement statement either Mr.Mr. Anderson Anderson and/or and/or Mr. White allegedly allegedly made asas evidence against that Defendant Defendant unless unless you you find find that that the the Defendant, Defendant, in in fact, made the statement. ... ...

*** kkk

......[T]here’s [T]here'saarule ruleof oflaw lawthat thatrightly rightlyrestricts restrictsuse use by you of the evidence offered to show that a certain by you of the evidence offered to show that a certain Defendant Defendantmade madeaastatement statementconcerning concerningthe thecrimes crimes charged. charged. AA statementstatement made made before before trialtrial may may bebe considered as evidence only against the Defendant considered as evidence only against the Defendant who whomade madethe thestatement. statement. Thus, Thus,you youmaymayconsider considerasas evidence the statements of Mr. - - evidence the statements of Mr. - - the statements Mr. the statements Mr. Anderson Anderson allegedly allegedly mademade toto police police detectives detectives onlyonly Mr. against Mr. Anderson. ... against Anderson. . . . Equally, you may Equally, you may consider consider as as evidence evidence thethe statements statements Mr. Mr. White White supposedly made to police detectives only against supposedly made to police detectives only against Mr. Mr. White, White,again againassuming assumingyou’ve you'veconcluded concludedhe heinin fact made those statements and such statements fact made those statements and such statements were were voluntary. voluntary. However, However, you you must must notnot consider consider Mr. Mr. White’s White's statements statements as as evidence evidence against against Mr.Mr. Anderson.

Anderson. You must not use the supposed You must not use the supposed statement statementof ofMr.

Mr. White Whitemade madetotopolice policeinvestigators investigators in any way against Mr. Anderson. in any way against Mr. Anderson.

N.T.

N.T. 5/17/12, 5/17/12,pp. pp. 86, 86,91-92.

91-92. (Emphasis (Emphasis added). added). SeeSeealso alsoN.T.

N.T. 5/17/12, 5/17/12,pp. pp. 86-93 86-93 (Jury (Jury instruction instructio pertaining pertaining toto determining determiningvoluntariness voluntariness of ofthe the statements statements if, if, in in fact, fact, made madeinintheir their entirety). entirety).

“Absent "Absent evidence evidence to to the the contrary, contrary, the the jury jury isis presumed presumed to to have have followed followed the the trial trial court' court s instructions.” instructions." Commonwealth Commonwealth v.». O’Hannon, O'Hannon, 557 Pa. Pa. 256, 256, 262, 262, 732 A.2d A.2d 1193, 1193, 1196 1196 (1999) (1999) citing citi Commonwealth Commonwealth v.v. LaCava, LaCava, 542 Pa..

Pa. 160, 160, 182, 666 A.2d 182,666 A.2d 221, 221, 231 (1995); (1995); Commonwealth Commonwealth v.v. Brown, Brow Pa. Pa. 272, 272, 289, 289, 786 A.2d A.2d 961, 961, 971 (2001) (2001) citing citing Commonwealth Commonwealth v.v. Travers Travers supra supra citing citi Commonwealth v.». Travaglia, Commonwealth Travaglia, 541 Pa. Pa. 108, 661 A.2d 108,661 A.2d 352 352 (1995); (1995); and and Commonwealth Commonwealth v.v. Spotz Spotz supra sup Pa. Pa. at at 57, 57, 896 A.2d A.2d 1t 1224 1224 quoting quoting Commonwealth Commonwealth v.v. Brown Brown supra supra 567 Pa. Pa. at at 289, 289, 786 A.2d A.2d at {t and Commonwealth v.». 0’Hannon and Commonwealth O 'Hannon supra supra 557 Pa. Pa. at at 262, 262, 732 A.2d A.2d at at 1196.

1196. See See also al J Commonwealth Commonwealth v.v. Becher, Becher, 293 A.3d A.3d 126, 126, 1240 1240 (Pa.Super (Pa.Super 2023)(“It 2023)("It is is well well settled settled that that aa jury jury j presumed presumed to to follow follow the the trial trial court’s court's instructions.”) instructions.") quoting Commonwealth Commonwealth v.v. Cash, Cash, 635 Pa. Pa. 45 1, A.3d A.3d 1262, 1262, 1280 1280 (Pa. 2016); Commonwealth v. Patterson, 180 A.2d A.2d 1217, 1217, 1228 1228 (Pa.Super (Pa.Sup

201 8)(“ Absent evidence 2018)("Absent evidencetotothe thecontrary, contrary,the thejury juryisispresumed presumedtotohave havefollowed followedthe theinstructions instructionscf the thecourt.”) court.")quoting quotingCommonwealth Commonwealthv.v. Spotz Spotzsupra supra 587 587Pa.

Pa. atat 57, 57, 896 A.2d A.2dt t 1224 1224 and andciting citin Commonwealthv.•0O'Hannon Commonwealth 'Hannonsupra 732A.2d supra732 A.2datat1196.

1196.

Here, Here,the theprosecutor prosecutordid didnot notcommit commitaaBruton Brutonviolation violationby byidentifying identifyingDefendant DefendantAnderson Anderso asasbeing beingthe the“he” "he"(other (otherperson) person)ininCo-Defendant Co-DefendantWhite’s White'sstatement. statement. See SeeN.T.

N.T. 5/17/12, 5/17/12,pp. pp.35-36 35-3 Rather, Rather,he heshowed showedhow howCo-Defendant Co-DefendantWhite’s White'sstatement statementproved provedtotobe beconsistent consistentwith withthe theforensic forensi testimony testimonyand andthat thatof ofthe themedical medicalexaminer examinerand andimmediately immediatelyused useditittotoargue arguethat thatthe theCo-Defendant Co-Defend (White)was (White) wasguilty guiltyof ofmore morethan thanjust voluntarymanslaughter. justvoluntary Id. manslaughter. Id.

Unfortunately Unfortunately for for the the Defendant, Defendant, that that same same forensic forensic and and medical medical evidence evidence showed showed that th t Defendant DefendantAnderson Andersonused usedaaclaw clawhammer hammeron onToby Toby Gale’s Gale's head headnot not once, once, but buttwice, twice, and andthen thenwhite whi the the deceased deceased was was still still alive alivetied tied him himup, up, placed placed him him in in aatrash trashbag, bag, and and threw threw him himinto into aa field field like like a piece pieceof ofgarbage. garbage. Failing Failingto to call call“911” and cleaning "911 and cleaningup upthe thecrime crime scene scene also also contributed contributedtotothe thejury’s jury s rejection ofDefendant rejection of Defendant Anderson’s Anderson's claim claim of ofmistaken mistaken self-defense. self-defense.

Trial Trial counsel’s counsel's decision decision not not to to dwell dwell on on such such evidence evidence by by lodging lodging an an objection objection wts w reasonable reasonable and and no no prejudice prejudice can canbe be demonstrated demonstrated by by not not raising raising aa meritless meritless objection. objection. See See N.T.

N.T. 1 111/8 23, 23, pp. pp. 41-47, 41-47, 55-6.

55-6. See See also also Commonwealth Commonwealth v.v. Fears Fears sypra supra 86 A.3d A.3d at at 804 citing citing Commonwealth Commonweal v.». Washington Washington supra supra 927 A.2d A.2d at at 603 (citations (citations omitted)(“ omitted)(" ... ... [C]ounsel [C]ounsel cannot cannot be be deemed deem ineffective ineffective for for failing failing to to raise raise aa meritless meritless claim[] claim[] or or failing failing to to perform perform aa futile futile act.”); act."); Commonwealth Commonweal v.v. Busanet Busanet supra supra 54 A.3d A.3d at at 46; 46; Commonwealth Commonwealth v.v. Fulton Fulton supra supra 830 A.2d A.2d at at 572, 572; and Commonwealth Commonwealth v. v. Spotz Spotz supra supra 896 A.2d A.2d at 1210 (“Counsel will not be deemed ineffective 1210("Counsel ineffective for failin faili g to raise to raise aa meritless meritless claim.”) claim.")

VI-C.

VI-C. Ineffective Ineffective assistance assistance of of counsel for failing counsel/or failing to to object object during during the theprosecutor’s prosecutor's closing closing argument. argument.

The The Defendant Defendant also also maintains maintains that that his his trial trial lawyer lawyer was was professionally professionally incompetent incompetent for for failin failin to to object object to to the the prosecution’s prosecution's closing closing argument argument where where the the assistant assistant district district attorney attorney purportedly purportedly used use inflammatory inflammatory and and prejudicial prejudicial language. language. See See Amended Amended PCRA PCRA Petition Petition docketed docketed August August 31, 31, 2022, , pp. pp. 7-9.

7-9. Trial Trial counsel’s counsel's failure failure to to do do so so waived waived the the issue issue for for appellate appellate purposes. purposes. In In support support of oftthis collateral collateral claim, claim, PCRA PCRA counsel counsel references references the the comment comment the the prosecutor prosecutor offered offered during during his summation summation pertaining pertaining to to the the Defendant’s Defendant's statement statement to to the the police police and and how how itit was was all all lies, lies, not not worti wort the the paper paper on on which which itit was was written, written, and and should should be be used used to to line line the the cat cat (litter) (litter) box. box. See See N.T.

N.T. 5/17/12, 5/17/1 , pp. pp. 30-32; 30-32; Defendant’s Defendant's Amended Amended PCRA PCRA Petition Petition docketed docketed August August 31, 2022, pp. 7-9; ani Defendant’s Defendant's Memorandum Memorandum of of Law Law filed filed January January 2, 2, 2024, 2024, pp. pp. 18-21.

18-21.

In In his his 1925(b) 1925(b) Statement Statement Defendant Defendant Anderson Anderson posits: posits: [wjhether [wJhether thethe PCRA PCRA Court Court erred erred in in finding finding that that Defendant’s Defendant's trial trial counsel counsel was was notnot ineffective ineffective under under the the Sixth Sixth Amendment Amendment to to the the United United States States Constitution Constitution and and parallel parallel provisions provisions of of the the Pennsylvania Pennsylvania Constitution, Constitution, in in failing failing to to object object to to prejudicial prejudicial andand inflammatory inflammatory remarks remarks made made by by the the prosecutor prosecutor during during closing closing argument, argument, in in which which the the prosecutor prosecutor referred referred to to Defendant’s Defendant's statement statement to to police police as as lies, lies, purported purported to to cross cross examine examine Defendant Defendant's ’s statement statement asas if ifDefendant Defendant had had actually actually testified testified and and offered offered that that Defendant Defendant's ’s statement statement should should be used to ‘Une the cat box’’, where counsel had no reasonable basis be used to 'line the cat box", where counsel had no reasonable basis to to forego forego an an objection objection to to the the remarks, remarks, and and the the Defendant Defendant was was prejudiced prejudiced in in that that the the remarks remarks of of the the prosecutor prosecutor were were of of such such aa nature nature as as to to form form in in the the minds minds ofof the the jurors jurors aa fixed fixed bias bias against against the the Defendant?

Defendant?

Defendant’s Defendant's Statement Statement Pursuant Pursuant to to Pa.R.A.P. Pa.R.A.P. 1925(b) 1925(b) docketed docketed August August 15, 15, 2024 2024 -No. --No. 3.

3.

AsAs thethe Defendant's Defendant’s trial trial counsel counsel hadhad anan eminently eminently reasonable reasonable basis basis forfor notnot objecting to tot objecting the remarks, remarks, this this ineffective ineffective assistance assistance allegation allegation is is without without merit.AsAs merit. well, thethe well, prejudice prejudice required fcrfr required any relief cannot be demonstrated. any relief cannot be demonstrated.

The The PennsylvaniaSuperior Pennsylvania Superior Court Court hasheld has heldthat thatcomments commentsmade madeduring a closingargument duringa closing argume t “ «...must must bebeconsidered consideredinin thethecontext contextofof thetheentire entiresummation.” Commonwealthv. v.Johnson, summation."Commonwealth 71 Johnson,719 A.2d778, A.2d 778,790 790(Pa.Super. (Pa.Super. 1998), appealdenied, 1998),appeal denied,559 559Pa.Pa.689, 689,739 739A.2d A.2d1056 1056(1999). Seealso (1999). See al Commonwealthv. v.Santiago-Burgos, Commonwealth Santiago-Burgos,314 314A.3d A.3d535, 535,547 547(Pa.Super. (Pa.Super. 2024); Commonwealthv. v.Scot', 2024);Commonwealth Seo , 212A.3d A.3d1094, 1094,1110 1110(Pa.Super. (Pa.Super. 2019)(The courtmust 2019)(Thecourt mustreview reviewa achallenged comment“not challengedcomment "notin· isolationbut isolation butininthe thecontext contextininwhich whichit itwas wasmade.”); Commonwealthv. •Ligons, made.");Commonwealth 565Pa.

Ligons,565 Pa.417, 43 417,430, 773A.2d A.2d1231, 1231,1238 1238(2001); (2001);and Commonwealthv. v.Brown, andCommonwealth Brown;911 911A.2d A.2d576, 576,579 579(Pa.Super. 200 (Pa.Super. 2006) citingCommonwealth citing Commonwealthv.v.Sampson, Sampson,900 900A.2d A.2d887, 887,890 890(Pa.Super. (Pa.Super. 2006) 2006)quoting Commonwealth■>. quotingCommonwealth Correa,444 Correa, 444Pa.Super. Pa.Super.621, 621,624,664 A.2d607, 624, 664 A.2d 607,609 609(1995). TheSuperior (1995). The Commonweal CourtininCommonwealth SuperiorCourt v.v.Raffensberger, Raffensberger,291 291Pa.Super. 193,207, Pa.Super.193, 207,435 435A.2d A.2d864, 864,870-71 870-71(1981) (1981)found foundthat thatthe thescope scopeofofth s contextualreview contextual reviewextends extendseven evenfurther furthertotoinclude includethe thecontents contentsofofthe theentire entirecase. case.( ("...... [A]llegedly [A ]lleged remarksmust prejudicialremarks prejudicial mustbe beread readininthe thecontext contextof ofthe thecase caseasasaawhole, whole,with withaaparticular viewtotothe particularview t evidencepresented evidence andreasonable presentedand reasonableinferences inferencesdrawn drawntherefrom, therefrom,ininorder ordertotodetermine determinewhether whetherthey th areindeed are indeedprejudicial.” Id.). See prejudicial."Id.). See also also Commonwealth Commonwealth v.v. Boone, Boone,286 286Pa.Super. Pa.Super. 384, 384, 398-400, 398-400, 428 AA.2d 1382, 1389-90 2d 1382, 1389-90 (1981).- Seegenerally (1981). See Commonwealthv.v. Bullock, generallyCommonwealth Bullock,284 284Pa.Super. Pa.Super. 601, 601,426 426A.^c A.

657 (1981).

657 Review of (1981). Review ofprosecutorial remarks requires prosecutorial remarks the court requires the court “to "to evaluate evaluate whether whether aa defendant defenda received aafair received fairtrial trial rather ratherthan than aaperfect perfect one.” Commonwealth v.v. Rios, one." Commonwealth Rios, 554 Pa. Pa. 419, 419, 721 A.2d A.2d 104 1 1054 (1998)(czte<7 1054 in Santiago-Burgos (1998)(cited in supra) and Santiago-Burgos supra) Commonwealth v.• Woeber, and Commonwealth Woeber, 174 A.3d A.3d 1096, 1096, ll(') (Pa.Super. 2017)(same). (Pa.Super. 2017)(same).

During Duringthe the course course of ofclosing closing summations, summations, “(t]he "[t]heprosecutor prosecutorisisfree free to to argue arguethat thatthe the evidence evidenc leads leads to to the the conclusion conclusion of ofguilt, guilt, and and isis permitted permitted to to suggest suggest all all favorable favorable and and reasonable reasonable inferences inferenc that that arise arise from from the the evidence.” evidence." Commonwealth Commonwealth v.v. Chamberlain, Chamberlain, 612 Pa. Pa. 107, 107, 153, 153, 30 30 A. 3d 381, A.3d 381, 40? (2011) (2011) citing citing Commonwealth Commonwealth v.v. Sam, Sam, 535 Pa. Pa. 350, 350, 362, 362, 635 635 A. 2d 603, A.2d 603, 608 (1993). (1993). A A new newtrial trial wi.l will not not be be considered considered necessary necessary “[w]here "[w]here the the prosecutor's prosecutor's arguments arguments are are supported supported by by the the evidence evidence anl an contain contain inferences inferences which which are are reasonably reasonably derived derived therefrom.” therefrom." Id. Id. citing citing Commonwealth Commonwealth v. .

Bronshtein, Bronshtein, 547 Pa. Pa. 460, 485, 691 A.2d 460,485,691 A.2d 907, 919 (1997).

907,919 (1997). See See also also Commonwealth Commonwealth v.v. LaCava LaCava supri supr Pa. Pa. at at 181, 181, 666 A.2d A.2d at at 231 and and Commonwealth Commonwealth v.v. Hardcastle, Hardcastle, 519 Pa. Pa. 236, 236, 254, 254, 546 A.21 A.2 1101, 1101, 1109 1109 (1988). (1988).

Furthermore, Furthermore, “[t]he "[t]he prosecutor prosecutor may may ... ... argue argue to to the the jury jury that that the the evidence evidence establishes establishes the guilt guilt of of the the defendant defendant and and that that certain certain facts facts in in evidence evidence are are conclusive conclusive of of such such guilt.” guilt. ' Commonwealth Commonwealth v.v. Kaufman, Kaufman, 307 Pa.Super. Pa.Super. 63, 63, 71, 71, 452 452 A. 2d 1039, A.2d 1039, 1043 1043 (1982) (1982) citing citin Commonwealth Commonwealth v.v. Oglesby, Oglesby, 274 Pa.Super. Pa.Super. 586, 586, 595, 595, 418 A.2d A.2d 561, 565 (1980).

561,565 (1980). A A prosecutor prosecutor during duri the the course course of of his his closing closing summation, summation, may may as as well well"..... . attempt attempt to to meet meet the the arguments arguments made made by b defense defense counsel counsel in in his his summation.” summation." Commonwealth Commonwealth v.v. Kelly, Kelly, 319 Pa.Super. Pa.Super. 204, 204, 211, 211, 465 A.2d A.2 1301, 1301, 1305 1305 (1983) (1983) citing citing Commonwealth Commonwealth v. Van Van Cliff, Cliff, 483 Pa. Pa. 576, 576, 584, 584, 397 A.2d A.2d 1173, 1173, 1177 (1979). (1979). See See also also Commonwealth v.v. Robinson Robinson supra 583 Pa. Pa. at at 383, 383, 877 A.2d A.2d at at 448 citing citi Commonwealth v. v. Trivigno, Trivigno, 561 Pa. Pa. 232, 244, 750 232,244, 750 A.2d A.2d 243, 243, 249 (2000). (2000). See also Commonwealth Commonweal v. Hardcastle supra supra 519 Pa. at 254, 546 A.2d at 1109 quoting Commonwealth v. Barren, 501 Pa. P .

493, 498, 462 A.2d 233, 235 (1983).

In In aa closing closing argument, argument, “"... ... it it is is improper improper for for aa prosecutor prosecutor to to offer offer any any personal personal opinion opinion cis to the guilt guilt of the defendant or the credibility of the witnesses . .... . [;]” [;]" however, an assistant district distri

attorney attorney may may “. .. summarize " ... summarize the the evidence evidence presented, presented, to to offer offer reasonable reasonable deductions deductions and and inference inference s from from the the evidence, evidence, and and to to argue argue that that the the evidence evidence establishes establishes the the defendant's defendant's guilt.” guilt." Commonwealth Commonwealt v.v. Thomas, Thomas, 618 Pa. Pa. 70, 70, 54 A.3d A.3d 332, 338 (2012) 332,338 (2012) citing citing Commonwealth Commonwealth v.v. Hutchinson, Hutchinson, 611 Pa. Pa. 280, , A.3d A.3d 277, 307 (201 277,307 1) and (2011) and Commonwealth Commonwealth v.• Chamberlain Chamberlain supra supra 612 Pa. Pa. at at 152, 152, 30 A.3d A.3d at at 408.

40 .

The The accepted accepted goal goal of of the the prosecutor’s prosecutor's closing closing summation summation is is to to “" ... ... present present the the facts facts in in aa manner manne that that will will lead lead the the jury jury to to aa dispassionate dispassionate and and objective objective evaluation evaluation of of those those facts facts and and will will produce produce a judgment judgment warranted warranted by by the the evidence.” evidence." Commonwealth Commonwealth v.v. Turner, Turner, 390 Pa.Super. Pa.Super. 216, 222, 568 A.2d 216,222,568 A.2 622, 622, 625 (1989) (1989) citing citing Commonwealth Commonwealth v.v. Davis, Davis, 363 Pa.Super. Pa.Super. 562, 562, 583, 583, 526 A.2d A.2d 1205, 1205, 1216 (1987), (1987), allocatur allocatur denied, denied, 518 Pa. Pa. 624, 624, 541 A.2d A.2d 1135 (1988).

1135 (1988).

A A Commonwealth’s Commonwealth's attorney attorney will will not not be be found found to to have have advocated advocated impermissibly impermissibly and and hence henc committed committed “reversible "reversible error” error" during during his his closing closing"“.... .. unless unless the the unavoidable unavoidable effect effect of of such such comments comment would would be be to to prejudice prejudice the the jury, jury, forming forming in in their their minds minds fixed fixed bias bias and and hostility hostility toward toward the the defendant defend so so that that they they could could not not weigh weigh the the evidence evidence objectively objectively and and render render aa true true verdict.” verdict." Commonwealth Commonwealth v Nicholson, Nicholson, 308 Pa.Super. Pa.Super. 370, 370, 384, 384, 454 A.2d A.2d 581, 581, 588 (1982) (1982) quoting quoting Commonwealth Commonwealth v.v. McNeai, McNea, Pa. Pa. 394, 394, 400, 400, 319 A.2d A.2d 669, 669, 673 (1974). (1974). Commonwealth Commonwealth v.v. Epps, Epps, 240 A.3d A.3d 640, 640, 646 (Pa.Supei. (Pa.Supe .

2020).

2020). See See also also Commonwealth Commonwealth v. v. Boone, Boone, 287 Pa.Super. Pa.Super. 1, 1, 6, 6, 428 A.2d A.2d 1382, 1382, 1389 1389 (1981); (1981 ; Commonwealth Commonwealth v.v. Ligons Ligons supra supra 565 Pa. Pa. at at 430, 430, 773 A.2d A.2d at at 1238 1238 citing citing Commonwealth Commonwealth v.». Morales, Morale , Pa. Pa. 400, 400, 423, 423, 701 A.2d A.2d 516, 516, 527-28 527-28 (1997); (1997); and and Commonwealth Commonwealth v.v. Turner Turner supra supra 390 Pa.Super. Pa.Supe. at at 223, 223, 568 A.2d A.2d at at 625 (Referred (Referred to to in in Turner Turner as as the the “unavoidable "unavoidable prejudice prejudice test”). test"). “" ‘Whether 'Whether i reversal reversal of ofjudgment judgment is is required required depends depends on on whether whether the the remarks remarks made made by by the the prosecutor prosecutor are are of of sue. sue i aa nature nature that that they they would would seriously seriously threaten threaten the the jury’s jury's objectivity objectivity and and deprive the accused deprive the accused of of aa fair fai trial.’ trial.' ”" Commonwealth Commonwealth v. ». Gruff, Gruff, 822 A.2d A.2d 773, 773, 782 (Pa.Super. (Pa.Super. 2003) 2003) quoting quoting Commonwealth Commonwealth v.

Carter, Carter,537 537Pa.

Pa.233, 264, 643 233,264, 643A.2d61, A.2d 61,7676(1994). (1994). The Thecourt courtininCommonwealth Commonwealthv.v.Guilford Guilfordrelatedl/ relatedl held heldthat that“[a] "[a]new newtrial trialisisnot notmandated mandatedevery everytime timeaaprosecutor prosecutormakes makesan anintemperate intemperateororimproper improp r remark.” remark."Commonwealth Commonwealthv.v.Guilford, Guilford,861 861A.2d A.2d365, 371 (Pa.Super. 365,371 (Pa.Super. 2004).

2004). See Seealso alsoCommonwealth Commonwealt v.•Ervin, Ervin,766 766A.2d A.2d859, 859,864 864(Pa.Super. (Pa.Super. 2000).

2000).

The The decision decisionasastotothe theprejudicial prejudicial quality quality of ofthe the statements statements by by the theprosecution prosecution offered offerediai summation summationisisfor forthe thetrial trialjudge. Commonwealthv.v. Williams, judge. Commonwealth Williams, 289 289Pa.Super. Pa.Super. 388, 388, 393, 393, 433 A.21 A.2 505, 505, 508 (1981) (1981) citing citing Commonwealth Commonwealth v.• Stoltzfus, Stoltzfus, 462 Pa. Pa. 43, 43, 61, 61, 337 A.2d A.2d 873, 873, 882 (1975 (1975 .

Moreover, “ ......the Moreover," theremedy remedytotobe beapplied appliedinineach eachcase caseisiswithin withinthe thediscretion discretionof ofthe thetrial trialjudge.” judge." Id. Ji .

See See also also Commonwealth Commonwealth v.v. Silvis, Silvis, 445 Pa. Pa. 235, 235, 237, 237, 284 A.2d A.2d 740, 740, 741 (1971). (1971). Finally, Finally, like like the t defense, defense,the theprosecution prosecutionisis accorded accordedreasonable reasonable latitude latitude and andmay may employ employ oratorical oratorical flair flairininarguing arguin its itsversion versionof ofthe thecase caseto tothe thejury. jury. “The "Thebounds boundsof of‘oratorical 'oratoricalflair’ flair' afford affordthe theprosecution prosecutionsigniftcar signific tit leeway leeway in inthis thisregard. regard .... Commonwealthv.v. Anderson, ...”" Commonwealth Anderson,_ _A. 3d _ A.3d __2024 2024 Pa.Super. Pa.Super. 271, 271, 202 2021 WL WL 4759146, 4 (filed 4759146, *4 (filed 11/13/24). See 11/13/24). See also also Commonwealth Commonwealth v.v. Henry, Henry, 550 Pa. Pa. 346, 346, 706 A.2d A.2d 31: 31.,, 330-31 330-31 (1997)(Reference (1997)(Reference to to defense defense being being “ridiculous” "ridiculous" did did not not constitute constitute misconduct misconduct or or warrai.t warr t relief); relief); Commonwealth Commonwealth v.v. Faulkner, Faulkner, 528 Pa. Pa. 57, 57, 595 A.2d28 A.2d 28 (1991)(Prosecutor (1991)(Prosecutor calling calling the the defense defen “stupid” "stupid" and and describing describing defense defense counsel’s counsel's conduct conduct as as “outrageous” "outrageous" did did not not merit merit relief relief i; Commonwealth Commonwealth v.v. Brawner, Brawner, 553 A.2d A.2d 458 (Pa.Super. (Pa.Super. 1989), 1989), appeal appeal denied, denied, 522 Pa. Pa. 617, 617, 563 A.2d A.2 (1989)(Prosecutor’s (1989)(Prosecutor's comments comments in in his his closing closing that that the the defense defense “smells "smells to to high high heaven,” heaven," iss “rotten”, "rotten, and and “stinks” "stinks" not not so so egregious egregious as as to to render render the the jury jury incapable incapable of of delivering delivering aa true true verdict, verdict. i;; Commonwealth Commonwealth v.v. Maxwell, Maxwell, 505 Pa. Pa. 152, 477 A.2d 1309, 152,477 1309, 1316-17 1316-17 (1984)(Prosecutor’s (1984)Prosecutor's rhetorical rhetoric 1 characterization of of defense defense counsel as “blowing "blowing smoke” smoke" did not warrant warrant relief). relief.).

“An ineffectiveness "An ineffectiveness claim claim based on counsel's based on counsel’s failure failure to to object object to to aa prosecutor's prosecutor’s closin closing argument has argument has merit merit where where it it is is demonstrated demonstrated that that the comment deprived the comment deprived the the petitioner petitioner of of i constitutional or constitutional or statutory statutory right, right, such such as as the right to the right to aa fair trial or fair trial or due due process." process.” Commonwealth Commonwealth v. Anderson supra citing Anderson supra citing Commonwealth Commonwealth v. v. Tedford, Tedford, 598 598 Pa. 639, 960 Pa. 639, 960 A.2d A.2d 1, 28-29 (2008).

1, 28-29 “Ths (2008). "Th touchstone is the touchstone is the fairness of the fairness of trial, not the trial, not the the culpability culpability of of the prosecutor.” Id. the prosecutor." Id. at at 28.

28. See See als also Commonwealth v. Commonwealth v. Reid, 688 Pa. Reid, 688 Pa. 358, 358, 415-16, 415-16, 259 A.3d A.3d 395, 395, 429 02021). (2021).

When viewed When viewed by by the the applicable standards set applicable standards set forth forth immediately above, the immediately above, Defendant’ s the Defendant' allegation of allegation of the the assistant district attorney assistant district attorney making making improper improper and and prejudicial prejudicial argument argument during during th the Commonwealth’s summation Commonwealth's summation is is readily readily seen seen to to merit merit no no relief. relief.

The prosecutor The prosecutor during during his his closing closing argument argument was was allowed allowed to to"“ .... . argue argue that that the evidence the evidenc leads leads to to the conclusion of the conclusion of guilt guilt and and is is permitted permitted to suggest all to suggest all favorable favorable and and reasonable inference s reasonable inference that arise from that arise from the the evidence." evidence.” Commonwealth Commonwealth v. v. Chamberlain Chamberlain supra supra 612 Pa. Pa. at at 153, 30 153, 30 A.3d A.3d at at 40 citing Commonwealth v. citing Commonwealth Sam supra • Sam 535 Pa. supra 535 Pa. at at 362, 362, 635 A.2d A.2d at at 608.

608. On On reviewing reviewing this this collater collateral contention in contention in the the context context of of the the trial trial as as aa whole, whole, the assistant district the assistant district attorney attorney was was within within the the bound bound 5 assigned of assigned of his his prosecutorial prosecutorial duties duties to “argue the to "argue the evidence," evidence,” offer offer reasoned reasoned inferences inferences based based upo upon the evidence that the evidence that had had been presented at been presented at trial and attempt trial and attempt to meet in to meet his closing in his closing the the arguments arguments mad made by defense counsel. by defense counsel. See See Commonwealth Commonwealth v. v. Kelly Kelly supra supra 319 Pa. Pa.Super. at 211, Super. at 211, 465 A.2d A.2d at at 130 1305 citing Commonwealth citing Commonwealth v. v. Van Van Cliff Cliff supra supra 483 Pa. Pa. at at 584, 584, 397 A.2d A.2d at at 1177.

1177.

To reiterate, To reiterate, "a “a prosecutor prosecutor is is permitted permitted to to 'vigorously ‘vigorously argue argue his his case case so so long long as as his his comment comment, are supported are supported by by the evidence or the evidence or constitute constitute legitimate legitimate inferences inferences arising arising from the evidence.' from the evidence.’ ”' Commonwealth v. Commonwealth Luster, 71 v. Luster, 71 A.3d A.3d 1029, 1048 (Pa.Super. 1029, 1048 (Pa.Super. 2013)(en 2013)(en banc). “(CJomments by banc). "[C]omments by a

prosecutor do not constitute reversible error unless the unavoidable effect of such comments would woul be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant sd s that they could not weigh the evidence objectively and render a true verdict. Commonwealth v..

Hall, 701 A.2d 190, 202 (Pa. 1997); accord Commonwealth v. Reid, 259 A. 3d 395, 429, citing A.3d citin Commonwealth v. Williams, 896 A.2d 523, 542 (Pa. (Pa. 2006).

Assuming the court would have sustained an objection, had had it been raised, raised, and if argued b/ b trial counsel, the court could have have granted the additional relief relief of of aa cautionary instruction instruction or or a mistrial. mistrial. A A cautionary cautionary instruction instruction would would not not have have created created any any reasonable reasonable probability probability of of changin ; changin the the jury’s jury's verdict verdict and and the the prosecutor’s prosecutor's comment comment clearly clearly did did not not warrant warrant the the grant grant of of aa mistria mistrial..

Moreover, Moreover, trial trial counsel counsel gave gave aa perfectly perfectly reasonable reasonable explanation explanation that that as as aa matter matter of of tactics, tactics, he he did di not not want want to to place place undue undue emphasis emphasis on on the the prosecutor’s prosecutor's overly overly dramatic dramatic oratory. oratory. See See N.T.

N.T. 11/18/12,, 11/18/1 pp. pp. 44-47, 44-47, 57-59.

57-59, See See Commonwealth Commonwealth v.v. Anderson Anderson supra supra at at *3.

3. (“[W]e ("[WJe do do not not question whether question whether there there were were other other more more logical logical courses courses of of action action which which counsel counsel could could have have pursued; pursued; rather rather we we must mu t examine examine whether whether counsel’s counsel's decisions decisions had had any any reasonable reasonable basis.” basis." quoting quoting Commonwealth Commonwealth v.v. Hanible, Hanibl , Pa. Pa. 183, 183, 30 A.3d A.3d 426, 426, 439 (2011).”). (2011)."). “" ‘A 'A review review of of counsel’s counsel's performance performance must must be be ‘highly 'highl deferential.’ deferential.'"” Anderson Anderson supra supra at*3 at3 quoting quoting Commonwealth Commonwealth v.v. Brown, Brown, 649 Pa. Pa. 293, 293, 196 A.3d A.3d 130, , 150-51 150-51 (2018) (2018) quoting quoting Commonwealth Commonwealth v.v. Tharp, Tharp, 6T1 Pa. Pa. 673, 673, 101 A.3d A.3d 736, 736, 772 (2014). (2014).

The The Defendant’s Defendant's contention contention fails fails on on at at least least two two (2) (2) or or all all three three (3) (3) conjunctive conjunctive prongs prongs of oftthe well-settled well-settled ineffectiveness ineffectiveness standard standard needed needed for for PCRA PCRA relief relief(I.e. (le. arguable arguable merit, merit, reasonable reasonable basis, basi , and and required required prejudice). prejudice).

VI-D. Ineffective assistance of counsel on direct appeal for failure to litigate trial court’s court's alleged evidentiary ruling error.

At the trial, the prosecutor intended to call a family friend and caretaker of the Defendant’s Defendant's grandmother. Defendant Anderson lived with his grandmother at the time in question. The da/ Theda before the Defendant admitted killing the victim (Toby Gale), the caretaker, Ms. Ratika Cruz, Cru , stopped by to check on Defendant Anderson’s Anderson's grandmother. While she was chatting with the t Defendant, Defendant, he was texting and audibly uttered “if "if this n***** n***** come over here I’m I'm going to to fr** P himhi up [szc].” [sic]." N.T. 5/14/12, p. p. 204. The person person the Defendant was referring referring to was never never identifier identifie , but but the the certainly certainly deceased deceased fit fit the the general general description. description. Before Before Ms. Ms. Cruz’s Cruz's testimony, testimony, trial trial counse couns l1 raised raised his his objection objection in in the the court’s court's robing robing room. room. See See N.T.

N.T. 5/14/12 5/14/12 pp. pp. 153-55.

153-55. Defense Defense counsel couns 1 asserted asserted that that because because the the object object of of the the Defendant’s Defendant's hostility hostility was was never never identified identified that that such such aa remar remar < was was speculative speculative and and unduly unduly prejudicial. prejudicial. Because Because of of the the timing timing of of the the comment, comment, the the court court deemed deeme the the testimony testimony to to be be admissible admissible and and any any inference inference to to be be assigned assigned for for the thejury’s jury's determination, determination, that that is, i , aa matter matter of of weight weight rather rather than than admissibility. admissibility. Trial Trial counsel’s counsel's objection objection was was therefore therefore respectfully respectful! overruled. overruled. Id. Id.

The The fourth fourth issue issue raised raised in in Defendant’s Defendant's 1925(b) 1925(b) statement statement of of matters matters pursued pursued on on appeal appeal is· expressed expressed by by asking: asking:

[w]hether [w]hether thethe PCRA PCRA Court Court erred erred in infinding finding the the Defendant’s Defendant's direct direct appeal appeal counsel counsel was was not not ineffective ineffective under under thetheSixth SixthAmendment Amendmentto to the the United United States States Constitution Constitution and and parallel parallel provisions provisions of of thethe Pennsylvania Pennsylvania Constitution, in failing to raise on direct appeal trial Constitution, in failing to raise on direct appeal trial court court error error in in admitting admitting the the testimony testimony of ofRatika Ratika Cruz Cruz that, that, prior prior to to the homicide, Defendant uttered a threat of violence directed at no the homicide, Defendant uttered a threat of violence directed at no specific specificperson, person, where where CruzCruz'’ testimony testimony was was inadmissible inadmissible because because itit did didnot not connect connect toto the the homicide, homicide, and,and, asas evidence evidence ofofaaprior prior bad badactact was highly was highly prejudicial prejudicial and its admission not harmless as the and its admission not harmless as the

Pennsylvania Superior Court cited the testimony as tending to prove malice requiredfor requiredfor First Degree Murder?

Defendant’s Defendant's Statement Pursuant to Pa.R.A.P. 1925(b) docketed August 15, 2024 - No. 4.

2024-No.

Defendant’s Defendant's PCRA counsel counsel ably ably argued argued that that this this piece piece of of evidence evidence was was referenced referenced by by the t Superior Court Court as as showing showing animus animus between the the Defendant Defendant and and his his supposed supposed friend, friend, the the deceased decease Mr. Mr. Gale, Gale, in in upholding upholding the the Defendant’s Defendant's first first degree degree murder murder guilty guilty verdict. verdict. See See Petitioner’s Petitioner s Memorandum Memorandum in in Support Support of of Post Post Conviction Conviction Relief, Relief, dated dated January January 2, 2, 2024, 2024, pp. pp. 21-26; 21-26; and and Supericr Superi r Court Court Memorandum Memorandum Opinion Opinion supra. supra. At At the the PCRA PCRA evidentiary evidentiary hearing, hearing, the the Defendant’s Defendant's counsel counsel ooi direct direct appeal appeal testified testified that that itit had had been been twelve twelve (12) (12) years, years, but but he he could could only only assume assume that that he he did did net n t raise raise the the issue issue because because at at that that time time he he deemed deemed the the issue issue to to be be without without merit. merit. See See N.T.

N.T. 11/8/23, p. .

11/8/23, 13.

13.

As As itit relates relates to to this this challenge challenge on on appeal, appeal, the the Pennsylvania Pennsylvania Supreme Supreme Court Courtregarding regardingthe the trie tri 1 court’s court's decisions decisions to to permit permit certain certain evidence evidence has has long long recognized recognized that that below: below: . .. [I]ssues ... [I]ssues concem[ing] concem[ing] the the admissibility admissibility of ofevidence, evidence, which which rests rests within within the sound discretion of the trial court and therefore, [the appellate courts] the sound discretion of the trial court and therefore, [the appellate courts] ‘will 'will reverse reverse [the] [the] trial trial court’s court's decision decision ... ... only only ififthe the appellant appellant sustains sustains the the ‘heavy 'heavy burden’ burden' to to show show that that the the trial trial court courthashas abused abused its its discretion.’ discretion.' ... It is not sufficient to persuade the appellate court that it might have ... It is not sufficient to persuade the appellate court that it might have reached reachedaadifferent differentconclusion conclusion [;]it[;]itisisnecessary necessarytotoshow showan anactual actualabuse abuseof of discretionary power. An abuse of discretion will not be found based on aa discretionary power. An abuse of discretion will not be found based on mere mere error error of ofjudgement, judgement, but but rather rather exists exists where where thethe court court has has reached reached aa conclusion [that] overrides or misapplies to law, or where the judgement conclusion [that] overrides or misapplies to law, or where the judgement exercised exercisedisismanifestly manifestlyunreasonable, unreasonable, or orthe theresult resultof ofpartiality, partiality,prejudice, prejudice, bias, or ill-will. bias, or ill-will.

Commonwealth Commonwealth v.v. Christine, Christine, 633 Pa. Pa. 389, 389, 397, 397, 125 A.3d A.3d394, 394,398 (2015) (2015) quoting quotingCommonwealth Commonwealt v. Bryant, v. Bryant,620 Pa. 218, 235, 67 A.3d 716, 726 (2013) quoting Commonwealth v. Eichenger, 591 620 Pa. 218, 235, 67 A.3d 716, 726 (2013) quoting Commonwealth ». Eichenger, 591 Pe..

P. 1,31,915 1, 31,915A.2d A.2d 1122, 1122, 1139-40(2007).

1139-40 (2007). See Seealso alsoCommonwealth Commonwealthv.v. Woodard, Woodard,634634Pa.

Pa. 162, 162, 186, 186, 129 12 A.3d 480, 494 (2015) quoting Commonwealth v. Reid, CM Pa. 151, 189, 99 A.3d 470, 493 (2014] ; A.3d 480,494 (2015) quoting Commonwealth v. Reid, 627 Pa. 151, 189, 99 A.3d 470, 493 (2014); Commonwealth Commonwealthv.v. Roberts, Roberts,293293A.3d A.3d 1221, 1221, 1223 1223 (Pa.Super. (Pa.Super. 2023).

2023).

The Pennsylvania The Pennsylvania Rules Rules of of Evidence Evidence provide, provide, in in material material part, part, the the following: following: Rule 401 . Test Rule 401. Test for for Relevant Relevant Evidence.

Evidence.

Evidence is Evidence is relevant relevant if: if: ((a) it has a) it has any any tendency tendency to to make make aa fact fact more more or less or less probable probable than than it it would would be be without without evidence; and evidence; and (b) the (b) the fact fact is is of of consequence consequence in in determining determining the action. the action.

Whether evidence has Whether evidence has aa tendency tendency to to make make aa given fact more given fact more oror less less probable probable is is to to be be determined by the determined by the court court in in light light ofof reason, reason, experience, scientific experience, scientific principles principles and and the the other other testimony offered testimony offered in in the the case. case. .. ... .

Pa.R.E. 401(a)(b) Pa.R.E. 401(a)(b) and Comment (italicized). and Comment (italicized).

Rule 403.

Rule 403. Excluding Excluding Relevant Relevant Evidence Evidence for for Prejudice, Prejudice, ... ... or or Other Other Reasons. The Reasons. The court court may may exclude exclude relevant relevant evidence evidence ifif its its probative probative value is value is outweighed outweighed byby aa danger danger of of one one or or more more of of the the following: following: unfair prejudice, unfair prejudice, confusing confusing the the issues, issues, misleading the jury, misleading the jury, undue undue delay, wasting delay, wasting time, time, or or needlessly needlessly presenting presenting cumulative cumulative evidence. evidence.

Pa.R.E. 403.

Pa.R.E. 403.

Rule 404..

Rule 404. .... . Other Other Crimes, Wrongs or Crimes, Wrongs or Acts.

Acts.

(b) ... (b) ... Other Other Crimes, Crimes, Wrong Wrong or or Acts.

Acts.

(1) Prohibited (1) Uses. Evidence Prohibited Uses. Evidence of of any other any other crime, wrong, crime, wrong, or or other other act is not act is not admissible admissible to prove to prove aa person's person’s character character inin order order to to show show that on that on aa particular particular occasion occasion the the person person acted acted in accordance in with the accordance with the character. character.

(2) Permitted Uses. (2) Permitted Uses. This evidence This may be evidence may be admissible for admissible for another purpose, such another purpose, such asas proving proving motive, motive, opportunity, opportunity, intent, intent, preparation, preparation, plan, knowledge, identity, plan, knowledge, identity, absence of mistake, absence of mistake, oror lack lack of of accident. In aa accident. In criminal case criminal case this this evidence evidence is is admissible only admissible only

if the probative if the probative value value ofof the the evidence evidence outweighs its outweighs potential for its potential for unfair unfair prejudice. prejudice.

Pa.R.E. 404(b)(1)(2).

Pa.R.E. 404(b)(l)(2).

“As the "As the comment comment to to Rule Rule 403 instructs, instructs, "“ '[un]fair ‘[un]fair prejudice' prejudice’ means means aa tendency tendency to to sugge suggest decision on decision on an an improper improper basis or to basis or to divert divert the the jury’s jury's attention attention away from its away from its duty of weighing duty of weighing tthe evidence impartially.' evidence impartially.’ "” Commonwealth Commonwealth v. v. Hairston, Hairston, 624 Pa. Pa. 143, 143, 159, 159, 84 A.3d A.3d 657, 657, 666 (201 (201 z) quoting Pa.R.E. quoting Pa.R.E. 403 (Comment).

403 (Comment).

“Because all "Because all relevant relevant Commonwealth Commonwealth evidence evidence is is meant meant to to prejudice prejudice aa defendant, defendant, exclusi exclusion is limited is limited to evidence so to evidence so prejudicial prejudicial that that it it would would inflame inflame the the jury jury to to make make aa decision decision based bas upon something upon something other other than the legal than the propositions relevant legal propositions to the relevant to the case.” Commonwealth v. case." Commonwealth v. Broaste Broaste.-, 563 A.2d 863 A.2d 588, 588, 592 (Pa.Super. (Pa.Super. 2004).

2004). See See also also Commonwealth Commonwealth v. v. Serge, 837 A.2d Serge, 837 A.2d 1255, 1255, 1260- 1260-611 (Pa.Super. 2003). (Pa.Super. 2003). "Not “Not surprisingly, surprisingly, criminal criminal defendants defendants always always wish to excise wish to excise eviden evidence of unpleasant of unpleasant and and unpalatable unpalatable circumstances circumstances surrounding surrounding aa criminal criminal offense offense from from the Commonwealth’s presentation Commonwealth's presentation at at trial. trial. Of Of course, course, the the courts courts must must make make sure sure that that evidence evidence of of su such circumstances have circumstances have some some relevance relevance to the case to the case and and are are not offered solely not offered solely to to inflame inflame the the jury jury or arouse prejudice arouse prejudice against against the the defendant. defendant. The The [trial] [trial] court court is is not, however, required not, however, required to to sanitize sanitize tthe trial to trial to eliminate eliminate all all unpleasant unpleasant facts facts from from the the jury's jury’s consideration consideration where where those those facts facts are are relevant relevant Io the issues the issues at at hand and form hand and form part part of of the the history history and and natural development of natural development of the the events events and offenses and offens for which for which the the defendant defendant is is charged charged ... ...”" Commonwealth Commonwealth v. v. Lark, Lark, 518 Pa. Pa. 290, 290, 310, 310, 543 A.2d A.2d 49 L (1988).

501 (1988).

“At the "At the heart heart of of the the ... ... prohibition prohibition on on propensity propensity evidence evidence is is the the threat threat of of prejudice prejudice to to a defendant caused by defendant caused replacing the by replacing presumption of the presumption of innocence innocence with with aa presumption presumption of of guilt guilt based based cr

prior conduct." prior conduct.” Commonwealth Commonwealth v. v. Yale, Yale, 249 A.3d A.3d 1001, 1001, 1014-15 1014-15 (Pa. (Pa. 2021) 2021) citing citing Commonweal Commonwealth v. Fortune, 464 v. Fortune, 464 Pa. Pa. 367, 367, 346 A.2d A.2d 783, 783, 786 (1975). Relatedly, “ ... (1975). Relatedly," ... exacting standards corral exacting standards corral ttie Commonwealth’s use Commonwealth's use of of Rule Rule 404(b) 404(b) evidence evidence to to prevent prevent unfair unfair prejudice prejudice to to aa defendant defendant woi whose liberty is at liberty is at stake stake and and to to prevent prevent the the potential potential loss loss of of the the presumption presumption of of innocence." innocence.” Commonweal Commonweal h v. Yale supra v. Yale supra 249 A.3d A.3d at at 1015.

1015. See also Commonwealth See also Commonwealth v. v. Herring, Herring, 271 A.3d A.3d 911,919 911, 919 (Pa.Sup (Pa.Super 2022) citing and 2022) citing quoting Commonwealth and quoting Commonwealth v. v. Yale Yale supra supra 249 A.3d A.3d at at 1015.

1015.

The sole The sole purpose purpose of of the evidence was the evidence was to to demonstrate demonstrate the the Defendant's Defendant’s possible possible state state of of mir mi e, at the at the time time of of the the infliction infliction of of the the victim's victim’s abusive abusive head head trauma trauma by by way of Defendant way of Defendant Anders Anderson striking the striking the victim's victim’s head head twice twice with with aa hammer. hammer. An An inference inference regarding the Defendant's regarding the Defendant’s comme comme i: pertaining to pertaining to what what he he was was going going to to do do could could be be accepted accepted or or rejected rejected by by the jury. Such the jury. Such an an inferen inference was in was in stark stark contrast contrast to witnesses who to witnesses who testified testified to to the the friendship friendship between between Defendant Defendant Anderson Anderson ana the deceased. the deceased. See See for for e.g., e.g., N.T.

N.T. 5/14/12, 5/14/12, pp. pp. 115 (Tony, (Tony, Donier, Donier, and Brian were and Brian were still still friends friends in in Ap April · 2012) 2012) and N.T. 5/14/12, and N.T. 5/14/12, pp. pp. 166-67 166-67 (The (The guys guys would would hang out together.). hang out together.). A A review of the review of the mater· material 1

trial record trial record demonstrates that the demonstrates that the admission admission of of the the subject subject testimony testimony at at issue was not issue was not manifes manifestly unreasonable and/or unreasonable and/or the the court's court’s decision grounded in decision grounded in partiality, partiality, prejudice, prejudice, bias, bias, and/or and/or ill ill will. will, Indeed, in Indeed, reviewing the in reviewing the sufficiency sufficiency of of the the evidence evidence presented presented to to sustain sustain the the Defendant's Defendant’s first first degr degr l murder conviction murder conviction on on direct direct appeal, appeal, the the Superior Superior Court Court recognized recognized that that such such evidence evidence allowed allowed for the permissible the inference "that permissible inference “that [the deceased] Gale [the deceased] Gale was was the the object object of of [Defendant] [Defendant] Anderson's Anderson’s ire r given that Anderson given that Anderson admits admits that that he he killed killed Gale Gale that that evening." evening.” Superior Superior Court Memorandum Opini Court Memorandum Opini ):i supra at *3. supra at *3. See See also Pa.R.A.P. 1925(a) also Pa.R.A.P. 1925(a) Trial Trial Court Court Opinion Opinion supra supra at 21; and at 21; andN.T. 5/14/12, p. N.T. 5/14/12, p. 2(<

harmless Assuming Assuming arguendo, harmless because on the because on that the arguendo, that the trial the court trial record court was was mistaken it could record it mistaken in could not not have in admitting admitting the have contributed the evidence, contributed to evidence, such to the the verdict. such error verdict. The error v as The doctrine doctrine off i harmless error harmless error is is aa technique technique of of appellate appellate review review designed to advance designed to advance judicial judicial economy economy by by obviati obviatir £ the necessity the necessity for for aa retrial retrial where where the the appellate appellate court court is is convinced convinced that that aa trial trial error error was was harmle harmless beyond aa reasonable beyond reasonable doubt. doubt. Its Its purpose purpose is is premised premised on on the the well-settled well-settled proposition proposition “that "that aa defend defendail is entitled is entitled to to aa fair trial but fair trial but not not aa perfect perfect one." one.” Commonwealth Commonwealth • v. Thornton, Thornton, 491 Pa. Pa. 260, 266, 4 260, 266, 42 1 A.2d248, A.2d 251 (1981); 248, 251 (1981); and and Commonwealth Commonwealth v. v. Yockey, Yockey, 158 A.3d A. 3d 1246, 1246, 1254 1254 (Pa.Super. (Pa. Super. 2017), appeal 2017), appe denied, 643 denied, 643 Pa. Pa. 686, 686, 174 A.3d A. 3d 567 (2017) (2017) citing citing Commonwealth Commonwealth v. v. Chmiel, Chmiel, 585 Pa. Pa. 547, 547, 581-8 581-82. 889 A.2d 501, 889 A.2d 501, 521 (2005). (2005). An error is An error is harmless if, inter harmless if, inter alia, the record alia, the record demonstrates “the error demonstrates "the error dd: c not prejudice not prejudice the the defendant defendant or or the the prejudice prejudice was was de de minimis. minimise Commonwealth Commonwealth v. v. Hairston, Hairston, 84 A2 c 84 A.

657, 671-72 657, 671-72 (Pa. (Pa. 2014).

2014).

Here, any Here, any prejudicial prejudicial effect of the effect of the putative putative error error is is so so insignificant insignificant that that it it is is clear clear beyond beyond s. reasonable doubt reasonable doubt the the claimed claimed mistake mistake could could not not have contributed to have contributed to the the verdict. verdict. Commonwealth Commonwealth v Story, 476 Story, Pa. 391,412,383 476 Pa. 391, 412, 383 A.2d A.2d 155, 155, 165 (1978). (1978). The The prejudice, prejudice, if if any, any, caused caused by by the the one one crypt crypt o comment made comment made by by the the Defendant Defendant is is de de minimis minimis compared compared to to the the expert medical and expert medical and forens forensic, I evidence introduced evidence introduced by by the the Commonwealth Commonwealth to to establish establish Defendant Defendant Anderson's Anderson’s guilt. guilt. See See pp. pp. 11-13 11- , supra quoting supra quoting Super Super Court Court Memorandum Memorandum Opinion Opinion dated dated November November 26, 26, 2013 at *1 2013 at *1 and and 3. *3. ("[O] (“[O]ir review of review the record of the record reveals reveals aa plethora plethora of of evidence evidence to to support support aa finding finding that that Anderson Anderson killed Ga.e killed Ga with malice, with malice, and not out and not out of of an an actual actual fear fear for for his his life.”) life.")

Although the Although the defense defense objection objection may may be be of of arguable arguable merit, merit, nonetheless, nonetheless, the the court's court’s ruling ruling w w iss not an not an abuse abuse of of discretion discretion and, and, therefore, therefore, the the Defendant Defendant did did not not suffer suffer any any prejudice prejudice as as aa result result r appellate counsel appellate counsel not not pursuing pursuing the the issue issue on on appeal. appeal. The The forensics forensics and and expert expert medical medical testimo testimony presented by presented by the the Commonwealth Commonwealth complete completely refuted .the· �y refuted the De.

Defendant’s version of fendant�s version of w what �at occurred. oc�urre_ 1.

Apart from the Apart from the compelling and uncontradicted compelling and medical evidence uncontradicted medical evidence introduced, introduced, the the jurors' jurors’ pl plain

commonsense was commonsense was sufficient sufficient cause cause to to reject reject the the Defendant's Defendant’s supposed supposed self-defense self-defense explanatio explanation This error This error assignment assignment is is meritless, meritless, but if this but if this court's court’s ruling ruling were were to to be be deemed an abuse deemed an of discretio abuse of discretion it was it was on the trial on the trial record's record’s totality totality harmless error. See harmless error. Commonwealth v. See Commonwealth v. Thornton Thornton supra 491 Pa. supra 491 Pa. r: 266, 431 266, 431 A.2d A.2d at at 251; Commonwealth v. 251; Commonwealth v. Yockey Yockey supra supra 158 A.3d A.3d at 1254 citing at 1254 Commonwealth e citing Commonwealth Chmiel supra Chmiel supra 585 Pa. Pa. at 581-82, 889 at 581-82, 889 A.2d A.2d at 521 ; Commonwealth at 521; v. Hairston Commonwealth v. supra 84 Hairston supra A.3d at A.3d at 67 72; Commonwealth 72; Commonwealth v. v. Kurtz, Kurtz, 294 A.3d A.3d 509,531, 509, 531, n. n. 15 (Pa.Super. (Pa. Super. 2023) 2023) quoting quoting Commonwealth Commonwealth v Holt supra Holt supra 273 A.3d A. 3d at at 540.

540.

summary, appellate In summary, counsel was appellate counsel was not ineffective for not ineffective for failing failing to to raise raise on on direct direct appeal appeal the subject evidentiary subject evidentiary claim. claim. For claims For claims of of appellate appellate counsel counsel ineffectiveness, ineffectiveness, aa defendant defendant mus m st established each established of the each of the underlying underlying elements elements of of the the Strickland Strickland test. See Strickland test. See v. Washingto Strickland v. Washington 466 U.S. 466 U.S. 668, 668, 104 S.Ct. S.Ct. 2952, 2952, 80 L.Ed.2d 674 80 L.Ed.2d 674 (1984); (1984); Commonwealth Commonwealth v. Tedford, 950 v. Tedford, 950 A.2d A.2d 1, 1, ' 6 (Pa. 2008). (Pa. Accordingly, aa defendant 2008). Accordingly, defendant yet yet must must prove: prove: (1) (1) the the underlying claim is underlying claim is of of arguable arguable mer mer tt (2) that (2) counsel had that counsel had no no reasonable reasonable strategic strategic basis basis for for his his action action or or inaction; inaction; and and (3) (3) but but for for the the err errors and omissions and omissions of of counsel, counsel, there there is is aa reasonable reasonable probability probability that that the the outcome outcome would would have have be been different. Commonwealth different. Commonwealth v. v. D'A D’A 'mato, 'mato, 856 A.2d 806,812 856 A.2d 806, 812 (Pa. (Pa. 2004); 2004); Commonwealth Commonwealth v. v. Sandus Sandus supra 203 supra 203 A.3d at 1043.

A.3d at 1043. As As an an appellate issue, aa defense appellate issue, defense claim claim that that the the court's court’s ruling ruling was was an an abuse ab of discretion is of discretion is meritless; meritless; and and moreover, moreover, the the required required prejudice prejudice under under the the PCRA cannot be PCRA cannot demonstrated. demonstrated.

VII. Conclusion Conclusion

Of Of the the four four (4) (4) issues issues of of alleged alleged ineffective ineffective assistance of collateral assistance of collateral counsel counsel raised raised and litigated litigated by by the Defendant, none the Defendant, none of of the the actions actions or or omissions alleged by omissions alleged the trial by the trial lawyer lawyer or or attorn attorney on on direct direct appeal appeal (either (either individually individually and/or and/or cumulatively) caused prejudice cumulatively) caused prejudice to Defendant Anders to Defendant Anderson such such that that the the truth truth determining determining process process was was undermined. undermined. While While some some of Defendant’s individual of Defendant's individ claims claims either either lack lack merit merit and/or and/or trial trial counsel counsel had had aa reasonable reasonable basis basis for for his his actions, actions, Defendant Defend Anderson’s Anderson's claims claims all all fall fall under under the the third third prong prong of of the the PCRA PCRA standard standard as as the Defendant has the Defendant has cle clearly ly � failed failed to to demonstrate demonstrate the the requisite requisite prejudice prejudice to to warrant the grant warrant the grant of of PCRA PCRA relief. relief. The The evidence evidence or Defendant Defendant Anderson’s Anderson's guilt guilt was was so so overwhelming overwhelming such such that that there there is is no no probability probability the the outcome outcome of of the the trial trial could could have have been been different different if if he he had had succeeded succeeded on on any any or or all all of of the the issues issues now now raised. raised.

For For all all these these reasons, reasons, the the court’s court's dismissal dismissal of of the the Defendant’s Defendant's counseled, counseled, amended amended PCJA.

PC petition petition following following such such an an evidentiary evidentiary hearing hearing should should be be affirmed. affirmed.

BY BY THE THE COU COU

Kevin IVtyell

1'42 Pa.C.S. §§9541 Pa.C.S. §§9541 et. et. seq. seq.

22 18 18 Pa.C.S.

Pa.C.S. §2502(a).

§2502(a).

3 18 Pa.C.S. §2502(c).

§2502(c).

18 Pa.C.S.

44 1818 Pa.C.S.

Pa.C.S. §907.

§907. •18 18 Pa.C.S.

Pa.C.S. §5510.

§5510.

66 18 Pa.C.S.

Pa.C.S. §4910.

§4910.

18 Pa.C.S.

7 18 Pa.C.S. §2502(a).

§2502(a).

18 Pa.C.S.

8 18 §2502(c).

Pa.C.S. §2502(c).

9 18 Pa.C.S. §907.

Pa.C.S. §907.

1918 18 Pa.C.S.

Pa.C.S. $5510.

§5510.

18 Pa.C.S.

11 18 Pa.C.S. §4910.

§4910.

121818 Pa.C.S.

Pa.C.S. $2502(a).

§2502(a).

13 18 Pa.CS.

Pa.C.S. $907.

§907.

18 Pa.C.S.

14 18 Pa.C.S. 65510 §5510 18 Pa.C.S.

1518 Pa.C.S. $4910.

§4910.

18 Pa.C.S.

16 18 6 Pa.C.S. §2502(c). $2502(c).

17 18Pa.C.S.

Pa.C.S. §2503(b). $2503(b).

18 Pa.C.S.

1· 18 18 Pa.C.S. $2502(a).

§2502(a).

1918 18 Pa.C.$S.

Pa.C.S. §907. $907.

20 18 30 18 Pa.C.S.

Pa.C.S. §4910. $4910.

2118 21 18 Pa.C.S.

Pa.C.S. $5510.

§5510.

22 18 7 18 Pa.C.S.

Pa.C.S. §907. $907.

23 18 273 18 Pa.C.S.

Pa.C.S. §4910. $4910.

24 18 Pa.C.S.

2418 Pa.C.S. $2502(a).

§2502(a).

18 Pa.C.S.

25 18 5 Pa.C.S. §5510. $5510.

18 Pa.C.S.

26 18 Pa.C.S. 82502(a).

§2502(a).

18 Pa.C.S.

27 18 7 Pa.C.S. $2503(b).

§2503(b).

18 Pa.C.S.

28 18 Pa.C.S. 82502(a).

§2502(a).

18 Pa.C.S.

29 18 9 Pa.C.S. 82502(a).

§2502(a).

30 When "the When “the trial trial court court orders orders an an Appellant Appellant to to file file aa concise concise statement statement of of matters complained of matters complained of on on appeal appeal un under Pa.R.A.P. 1925, any Pa.R.A.P. 1925, any issue issue not not contained contained inin that that statement statement isis waived waived on on appeal." appeal.” Commonwealth Commonwealth • v. Rolen, Rolen, 964 A.

A. 2d 398, 409 398, 409 (Pa.Super. 2008). "Any (Pa.Super. 2008). “Any issues issues not not raised raised in in aa [Rule] [Rule] 1925(b) Statement will 1925(b) Statement will be be deemed deemed waive waived.’ .' Commonwealth v. Commonwealth v. Castillo, Castillo, 888 A.2d A.2d 775, 775, 780 (Pa. (Pa. 2005)(quoting 2005)(quoting Commonwealth Commonwealth v. v. Lord, Lord, 719 A.2d A.2d 306, 306, 309 ((Pz.

1998)). See 1998)). See also also Pa.R.A.P. Pa.R.A.P. 1925(b)(4)(vii)("Issues 1925(b)(4)(vii)(“Issues notnot included included in the statement in the statement and/or and/or not not raise raise in accordance with in accordance with th; provisions of provisions of this this paragraph (b)(4) are paragraph (b)(4) are waived." waived.” Accordingly, Defendant Anderson’s Accordingly, Defendant PCRA claim Anderson's PCRA claim with with respect respect to to the trial court's trial court’s ruling ruling that that he he and and his his co-defendant's co-defendant’s (Donier (Donier White's) White’s) case case could could be be joined joined for for trial is on trial is on app appesl unreviewable. unreviewable.