Com. v. Ford, J.

J. S63006/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMEL S. FORD, : No. 2332 EDA 2015
:
Appellant :

Appeal from the PCRA Order, July 20, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0002100-2008,
CP-51-CR-0005080-2007, CP-51-CR-0005081-2007,
CP-51-CR-0005082-2007

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 06, 2016

Jamel S. Ford appeals from the order entered in the Court of Common

Pleas of Philadelphia County that dismissed, without a hearing, his first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

In a prior memorandum, affirming appellant’s judgment of sentence on

direct appeal, this court summarized the history of this case as follows:

On December 5, 2006, around 11:10 p.m.,
while walking at Emerald and Ontario Streets in
Philadelphia, Jamal Wright and Stephanie Wilcox
conversed with Haneef Dyches, who was also known
as “Neef” and “Neef Bucks.” [Appellant] approached
on foot, acknowledged Wright and Dyches, and
followed Dyches across Ontario Street. As Wright
and Wilcox followed, [appellant] abruptly pulled a
gun from his pocket and shot Wright in the head,

* Former Justice specially assigned to the Superior Court.
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causing Wright to fall to the ground. [Appellant]
shot Wilcox in the right side of her face, and then
shot Wright again in the chest as Wright lay
motionless on the ground. Wilcox ran down the
block, hid, and called emergency services. Dyches
began to walk away, heard a click, and looked back
over his shoulder. [Appellant], with his gun aimed at
the back of Dyches’ head, told Dyches “Pussy, you
ain’t seen nothing” and then left the area.
Luis Rivera, who was inside his residence on the
2000 block of Emerald Street, heard the three shots,
looked out the window, saw [appellant] and Dyches
walking in opposite directions, and saw Wright’s
body lying on the sidewalk.

Police arrived, sought medical treatment for
Wilcox, secured the area, and recovered three (3)
fired .380 caliber casings from the ground next to
Wright’s body, which were analyzed by a ballistics
expert and were found to exhibit similar firing
characteristics. Wright was already dead and police
recovered the following items from his body: a semi-
automatic Tec-9, 9 millimeter pistol, which was in
Wright’s waistband; forty dollars ($40.00); a cell
phone; and a bag containing ten (10) crack cocaine
packets. Ballistics analysis indicated that the Tec-9
was operable, contained no cartridges, and did not
fire the .380 caliber casings.

Medical Examiner Bennett Preston, M.D.,
performed Wright’s autopsy, which confirmed that
Wright was shot in the right side of his head at close
range, e.g., six inches from the gun barrel, that
Wright sustained head injuries, e.g., terminal fall
injuries, which were likely incurred when he fell after
he was shot in the head, that Wright was also shot in
the chest from a slightly more distant range, that the
cause of Wright’s death was multiple gunshot
wounds, and that the manner of Wright’s death was
homicide.

Wilcox was hospitalized for four (4) days for a
shattered jaw, eight (8) shattered teeth, and severe
lacerations to her face, mouth, and tongue, all of

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which required reconstructive surgery. She could
not eat or speak normally for nearly eight (8)
months due to a metal fixation device on her exterior
jaw. Wilcox’s jaw cannot be fully reconstructed,
eight (8) teeth remain missing, and she still suffers
facial numbness and scarring.

An investigation ensued, during which Wilcox
and Dyches gave statements and, when shown an
array with [appellant]’s photograph, separately
identified [appellant], who they know as ‘Face,’ as
the shooter; Wilcox also identified Dyches, by
photograph, as the eyewitness. A warrant for
[appellant]’s arrest was issued, but [appellant] could
not be located and federal authorities were notified
that [appellant] was a fugitive.

On February 7, 2007, [appellant] was detained
in Atlanta, Georgia as a possible fugitive. Atlanta
Homicide Investigator Brett Zimbrick, preliminarily
asked [appellant] if he was wanted in Philadelphia
and [appellant], who appeared sober, responded
affirmatively, admitted that he shot a man in
December 2006. [Appellant] received and waived
Miranda[1] warnings and gave a statement to
Investigator Zimbrick, which was videotaped, in
which he admitted that he shot Wright and Wilcox,
claimed that Wright had robbed him of drugs and
money earlier that day, and claimed that, just before
he shot Wright, he believed Wright was pulling out a
gun. [Appellant] was transported to Philadelphia,
arriving on February 20, 2007, and was brought to
the Philadelphia Homicide Unit and interviewed by
Detective William Sierra. [Appellant] received and
waived Miranda warnings and gave a second
statement, memorialized in writing, therein
admitting that he shot Wilcox and Wright on
December 5, 2006, claiming that he did so after
Wright pulled out a gun, and also claiming that, in
the course of that same day, he had a couple of
drinks, he was robbed by Wright, he purchased ‘wet’
or PCP, and he made various cocaine sales.

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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On April 25, 2007, Dyches testified at
[appellant]’s preliminary hearing in this case. On
that day and for the next six (6) months, Dyches
was in custody for an unrelated case and was housed
at the Philadelphia Detention Center (“PDC”),
cellblock “G”.

On occasion, inmates housed in separate
cellblocks at the Detention Center are able to
interact with each other in the kitchen, church,
medical center, and gym.

On August 3, 2007, as Philadelphia Corrections
Officer Chi Haliburton, an officer with fourteen
years[’] experience, was on duty at the Philadelphia
Detention Center and was inspecting incoming mail,
her suspicious [sic] were aroused by a letter
postmarked “August 2, 2007,” which was addressed
to Jamal Bowens, an inmate housed in the
“D” cellblock, with a return address of ‘Rel-Rel, 2528
North 15th Street, Philadelphia, Pennsylvania,
19132[.]” The writer, who identified himself in the
letter as “Terrell Bowens, PP Number 968912, 7901
State Road, Philadelphia,” requested that Jamal
Bowens “take care” of “some bull on your block
name Neef Buck…that nigga ratting on my
folks…Bang that nigga the fuck out or fuck that nigga
up…Make that nigga check on P.C.,[Footnote 4]” and
enclosed a copy of Dyches’ statement in this matter,
which was modified with a superimposed copy of
Dyches’ police photograph.

[Footnote 4] “P.C.” is a reference to
protective custody, a heightened security
custody for inmates who are not
permitted to mingle with the prison
population.

Police investigation revealed that Terrell
Bowens resided at 2528 North 15th Street in
Philadelphia, had a matching Police Photograph
Number/PP Number, was in custody at the Curran
Fromhold Correctional Facility (“CFCF”), 7901 State

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Road, Philadelphia, and was housed in [appellant]’s
cellblock. A search of Terrell Bowens’ cell by prison
personnel led to the recovery of, inter alia,
correspondence addressed to “Rel-Rel,” while a
search of [appellant]’s cell led to the recovery of,
inter alia, Dyches’ photograph.

On August 10, 2007, [appellant] received and
waived Miranda warnings and gave a third
statement, in which he admitted that he had given
Dyches’ photograph to “people on my block, to know
who is snitching” and that he had “a guy…in the Law
Library” make the superimposed photocopy of
Dyches’ photograph and statement.

Commonwealth v. Ford, No. 1686 EDA 2009, unpublished memorandum

at 2-5, quoting trial court opinion, 9/16/09 at 2-6 (citations and footnote

omitted).

The PCRA court set forth the following procedural history:

On February 10, 2009, after a capital jury trial
before this Court, [appellant] was convicted of
[first-degree murder, possessing an instrument of
crime (“PIC”), attempted murder, two counts of
aggravated assault, two counts of witness
intimidation, solicitation – murder, and conspiracy –
murder[2]. On February 17, 2009, after the penalty
hearing and an adequate period of deliberation, the
jury was discharged as it could not reach a
unanimous verdict on the existence of aggravating
circumstances, which would have been the basis for
a sentence of death. On April 24, 2009, this Court
sentenced [appellant] to consecutive terms of
incarceration as follows: Life Imprisonment for
Murder; two-and one-half to five (2½-5) years for
PIC; twenty to forty (20-40) years for Attempted
Murder; ten to twenty (10-20) years for one count of
Aggravated Assault; ten to twenty years (10-20) on
each of the two counts of Intimidation; ten to twenty

2
18 Pa.C.S.A. §§ 2502, 907, 901, 2702, 4952, 902, and 903, respectively.

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(10-20) years for Solicitation; ten to twenty (10-20)
years for Conspiracy; and no further penalty for the
second Aggravated Assault count, as it merged with
Attempted Murder. [Appellant’s] May 4, 2009
Post-Sentence Motion was denied on May 14, 2009.

On June 9, 2009, Appellant appealed to the
Superior Court of Pennsylvania. On October 26,
2010, the Superior Court affirmed Appellant’s
judgment of sentence. On May 3, 2011, the
Supreme Court of Pennsylvania denied Appellant’s
Petition for Allowance of Appeal.

On November 1, 2011, Appellant, pro se,
timely filed the instant PCRA Petition as it was filed
well within one year of when his conviction became
final. 42 [Pa.C.S.A. § 9545(b)]. On June 23, 2014,
court-appointed counsel filed an amended petition on
Appellant’s behalf. On January 20, 2015, the
Commonwealth filed a motion to dismiss Appellant’s
Amended PCRA Petition. On May 18, 2015, after
reviewing Appellant’s Amended PCRA Petition and
the Commonwealth’s Motion to Dismiss, the Court
issued a Notice of Intent to Dismiss pursuant to
Pa.R.Crim.P. 907 finding that all of the claims raised
by Appellant were previously litigated, waived, or
without merit. On June 24, 2015, Appellant, pro se,
filed a supplemental PCRA petition, which the Court
did not consider pursuant to judicial policy barring
hybrid representation because Appellant is being
represented by counsel. On July 20, 2015, the Court
formally dismissed Appellant’s Amended PCRA
Petition.

On July 29, 2015, Appellant timely filed the
instant appeal to the Superior Court. On July 29,
2015, the Court ordered Appellant to file a concise
statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b) []. Appellant timely
complied and filed his 1925(b) Statement on
August 19, 2015. . . .

PCRA court opinion, 10/14/15 at 1-3 (footnotes omitted).

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Appellant raises the following issues for our review:

A. Whether The Appellant claims that trial counsel
was ineffective for failing to challenge that his
statement to the police was involuntary where
he was illegally held in custody over six hours
in violation of his 14th and 5th amendment
rights. All previous counsel were ineffective for
failing to raise this issue?

B. Whether The Appellant claims that trial counsel
was ineffective for failing to challenge that he
was deprived of counsel during critical stages
in his case- when he gave a statement, during
and after his transport from Atlanta to
Philadelphia?

C. Whether The Appellant claims that trial counsel
was ineffective in failing to fully investigate his
claim of self-defense or imperfect self-defense?

D. [Whether] The Appellant claims that trial
counsel was ineffective in failing to retain a
mental health expert to determine
[appellant’s] state of mind at the time the
crime was committed?

E. Whether Trial counsel was ineffective for failing
to present the testimony of [appellant] who
could have presented a defense to the matter?

F. Whether Trial counsel was ineffective in that
trial counsel did not properly argue a
suppression motion which was based on the
illegal search and seizure of a letter that was
taken from his prison cell?

G. Whether Trial counsel was ineffective for failing
to investigate and challenge the second
statement Appellant gave to police, which was
the product of extreme duress?

H. Whether Trial and appellate counsel were
ineffective for failing to challenge portions of

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the closing argument which referred to
[appellant] as an “executioner[”] and a “cold
and calculating person” and commented on the
credibility of the witnesses which was so
prejudicial as to deprive [appellant] of a fair
trial?

I. Whether Trial and appellate counsel were
ineffective for failing to request a limiting
instruction regarding the references to other
crimes evidence that was introduced at trial?

J. Whether rial [sic] and appellate counsel were
ineffective for failing to challenge that the 72.5
to 145 year sentence that was imposed
consecutively to the life sentence was an abuse
of discretion?

Appellant’s brief at 6.

We limit our review of a PCRA court’s decision to examining whether

the record supports the PCRA court’s findings of fact and whether its

conclusions of law are free from legal error. Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s

findings and the evidence of record in a light most favorable to the prevailing

party. Id.

To be entitled to PCRA relief, the defendant bears the burden of

establishing, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so

undermined the truth-determining process that no reliable adjudication of

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guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i)

and (ii); see also Mason, 130 A.3d at 618 (citations omitted).

Here, appellant’s claims assert that his trial and/or direct-appeal

counsel provided ineffective assistance.

Counsel is presumed effective, and in order to
overcome that presumption a PCRA petitioner must
plead and prove that: (1) the legal claim underlying
the ineffectiveness claim has arguable merit;
(2) counsel’s action or inaction lacked any
reasonable basis designed to effectuate petitioner’s
interest; and (3) counsel’s action or inaction resulted
in prejudice to petitioner. With regard to reasonable
basis, the PCRA court does not question whether
there were other more logical courses of action
which counsel could have pursued; rather, [the
court] must examine whether counsel’s decisions
had any reasonable basis. Where matters of
strategy and tactics are concerned, [a] finding that a
chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an
alternative not chosen offered a potential for success
substantially greater than the course actually
pursued. To demonstrate prejudice, a petitioner
must show that there is a reasonable probability
that, but for counsel’s actions or inactions, the result
of the proceeding would have been different. Failure
to establish any prong of the [] test will defeat an
ineffectiveness claim.

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

Appellant first complains that “trial counsel was ineffective for failing to

challenge that his [second] statement to the police was involuntary where he

was illegally held in custody over six hours in violation of his 14 th and

5th amendment rights.” (Appellant’s brief at 11.) In support, appellant

relies on Commonwealth v. Davenport, 370 A.2d 301 (Pa. 1977).

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Davenport, however, has since been overruled by Commonwealth v.

Perez, 845 A.2d 779 (Pa. 2004), wherein our supreme court held that

“voluntary statements by an accused, given more than six hours after arrest

when the accused has not been arraigned, are no longer inadmissible

per se. Rather, . . . regardless of the time of their making, courts must

consider the totality of the circumstances surrounding the confession.”

Perez, 845 A.2d at 787 (footnote omitted); see also Commonwealth v.

Housman, 986 A.2d 822 (Pa. 2009). In his brief, appellant subsequently

concedes that Davenport “has been so altered over its history that it is

certainly not a bright line rule,” but “argues that the time that passed and

the conditions under which [appellant] was held deprived him of his basic

rights and his statement should have been suppressed.” (Appellant’s brief

at 14.) Therefore, the gravamen of appellant’s first complaint is that his

second confession was not voluntary due to the conditions of his transport

from Atlanta to Philadelphia and the circumstances of that confession.

Contrary to appellant’s claim, the record reflects that trial counsel

raised the issue of the voluntariness of both of appellant’s confessions prior

to trial. (Motion to suppress identification, physical evidence, and/or

statement, 1/13/09; Docket #4.) Moreover, the claim was raised,

addressed, and rejected on direct appeal. There, appellant contended,

among other things, that his transfer from Atlanta to Philadelphia “drained

him of the ability to withstand suggestion and coercion.” Ford, No. 1686

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EDA 2009 at 9. Based on the record, this court was unable to conclude that

the suppression court abused its discretion in finding that driving from

Atlanta to Philadelphia and then being interviewed was physically or

psychologically detrimental to appellant so as to require suppression of the

confession appellant made in Philadelphia. Id. at 10. Therefore, not only

does the record belie appellant’s claim that trial counsel failed to challenge

the voluntariness of his second confession, but on direct appeal, this court

deemed the claim meritless. Consequently, appellant’s claim amounts to

nothing more than an attempt to again challenge the voluntariness of his

confession and it must fail.

Appellant next complains that “trial counsel was ineffective for failing

to challenge that he was deprived of counsel during critical stages in his

case- when he gave a statement, during and after his transport from Atlanta

to Philadelphia.” (Appellant’s brief at 15.)

Once again, the record belies appellant’s contention. The record

reflects that in appellant’s suppression motion, trial counsel raised the issue

of appellant being “questioned by the police without his consent or without

waiving his rights” and also claimed that appellant “was not read his

Miranda rights prior to the questioning.” (Motion to suppress identification,

physical evidence, and/or statement, 1/13/09; Docket #4.) The issue was

also raised, addressed, and rejected on direct appeal. There, this court

noted that the suppression court found the testimony of Detective William

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Sierra credible. Ford, No. 1686 EDA 2009 at 9. Moreover, this court found

that the record demonstrated that Detective Sierra read appellant his

Miranda rights and then asked and typed appellant’s answers to seven

questions pertaining to those rights. Id. at 10, citing notes of testimony,

1/27/09 at 23. Appellant was then given the typed pages containing his

answers to the Miranda questions to review. Id., citing notes of testimony,

1/27/09 at 25. Appellant initialed each question, signed each page, and

agreed to an interview. Id., citing notes of testimony, 1/27/09 at 25.

Therefore, not only does the record belie appellant’s contention that trial

counsel failed to challenge appellant’s claimed deprivation of counsel in

violation of his Miranda rights, but on direct appeal, this court found no

abuse of discretion in the suppression court’s denial of appellant’s motion to

suppress because, among other things, the record supported the conclusion

that appellant was properly Mirandized before he voluntarily confessed.

Therefore, appellant’s claim amounts to nothing more than an attempt to

once again challenge the admissibility of his confession and it must fail.

Appellant next complains that “trial counsel was ineffective in failing to

fully investigate his claim of self-defense or imperfect self-defense.”

(Appellant’s brief at 18.) Appellant’s argument on this issue is that:

[t]rial counsel failed to properly investigate and
present evidence that after being robbed by the
decedent and his girlfriend, [appellant] did in fact
arm himself. Upon returning to gather his personal
belonging [sic] scattered on the ground. [sic]
[Appellant] observed the decedent and his girlfriend

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crossing the street, fearing for his life and being
accosted again [appellant] withdrew his weapon and
crossed to the opposite side of the street in an effort
to avoid any form of confrontation. At which point
the decedent and his girlfriend crossed the street
again. Not knowing or being able to discern the
motive they had, [appellant] panicked and opened
fired [sic] upon them. [Appellant] maintains that he
believed that he acted with legal justification when
he discharged the firearm and counsel was
ineffective for failing to explore this defense.

Id. at 19-20. Once again, the record belies appellant’s claim. The record

reflects that trial counsel pursued the theory of self-defense or imperfect

self-defense by first introducing the theory in his opening statement, as

follows:

[DEFENSE COUNSEL]: I submit to you that the
evidence will show that [appellant] is coming down
the street, he believes that Mr. Wright is pulling a
weapon on him. He reacts, and fires his weapon.
He didn’t mean to kill anybody. He thought that his
life was in jeopardy. He was protecting himself.

Notes of testimony, 1/28/09 at 92. Trial counsel also cross-examined police

investigator Brett Zimbrick regarding a statement appellant made to police

that indicated appellant acted in self-defense, with the investigator

confirming that appellant stated that appellant believed Wright was about to

pull a gun on him. (Notes of testimony, 1/29/09 at 48.) Moreover,

appellant’s February 20, 2007 confession was read into the record. In that

confession, appellant claimed that he shot Wright because Wright pulled a

gun out on him. (Notes of testimony, 2/3/09 at 73-75.) Additionally, trial

counsel cross-examined the medical expert with respect to appellant’s

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self-defense theory. (Notes of testimony, 2/2/09 at 66-68.) The record

further reflects that the trial court charged the jury on self-defense. (Notes

of testimony, 2/6/09 at 92-94.)

Moreover, on direct appeal, appellant contended, among other things,

that the evidence was insufficient to sustain his first-degree murder

conviction because it established that he acted in self-defense. Ford,

No. 1686 EDA 2009 at 15 & 18. After reviewing the record, this court

concluded that the Commonwealth disproved appellant’s claim on

self-defense beyond a reasonable doubt. Id. at 19. Therefore, this claim

must fail.

Appellant next complains that “trial counsel was ineffective in failing to

retain a mental health expert to determine [appellant’s] state of mind at the

time the crime was committed.” (Appellant’s brief at 21.)

Here, after recitation of rules of law, appellant sets forth the following

three-sentence argument to support this contention:

[Appellant] argues that if the original jury had been
presented with evidence of his mental health, drug
usage, and diminished intellectual capacity, there is
a reasonable probability that the jury would have
determined that he lacked the ability to formulate a
specific intent to kill. Trial counsel made no effort to
investigate the mental state of [appellant]. Given
the seriousness of the charges–first degree murder,
it fell below the standard of effectiveness not [sic]
have the [appellant] evaluated and he should be
granted a new trial.

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Appellant’s brief at 21-22. The record, however, reflects that appellant’s

defense strategy at trial was self-defense. Trial counsel cannot be found

ineffective for failing to present the inconsistent defense of inability to form

specific intent. Therefore, this claim must fail.

Appellant next claims that “[t]rial counsel was ineffective for failing to

present the testimony of [appellant] who could have presented a defense to

the matter.” (Appellant’s brief at 23.) Once again, the record belies

appellant’s contention. The record reflects that appellant exercised his

constitutional right to remain silent and not present evidence on his behalf,

as follows:

THE COURT: Now, do you understand that you do
have a right, under the Constitution of the United
States of America, as well as the Constitution of the
Commonwealth of Pennsylvania, to present
evidence, and to testify on your own behalf?

Do you understand that?

[APPELLANT]: Yes, Sir.

THE COURT: You also have the right not to do that.

Do you understand that, also?

[APPELLANT]: Yes.

THE COURT: I have been informed by your attorney,
both of them, that it is your decision that you will not
present testimony, and you will not present
evidence, and it is your desire at trial to remain
silent; is that correct?

[APPELLANT]: Yes, Sir.

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....

THE COURT: Do you thoroughly understand the
decision that you are making right now?

[APPELLANT]: Yes.

THE COURT: Is it your desire not to testify on your
own behalf?

[APPELLANT]: Yes.

THE COURT: Is it your desire not to present
evidence on your behalf?

[APPELLANT]: It is.

Notes of testimony, 2/4/09 at 179 & 181. Therefore, this claim necessarily

fails.

Appellant next complains that “[t]rial counsel was ineffective in that

trial counsel did not properly argue a suppression motion which was based

on the illegal search and seizure of a letter that was taken from [appellant’s]

prison cell.” (Appellant’s brief at 25.) On this issue, appellant presents the

following four-sentence argument:

The letter was taken and [appellant] was
questioned about it even though [appellant] was
represented by counsel at the time there is is [sic] a
possibility that due to trial counsel’s actions or
inactions to prevent this evidence from being
admitted, the outcome may have been different.
The correctional officer acted as an agent for the
Philadelphia Police Department when the evidence
was taken from [appellant’s] prison cell. Trial
counsel was ineffective for failing to protect
[appellant’s] 4th and 14th Amendment rights when he
conceded that the search of the prison cell was legal.

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It violated the prison policy and also violated the
laws regarding search and seizure.

Appellant’s brief at 25.

The gravamen of appellant’s complaint is his dissatisfaction with the

trial court’s ruling on his suppression motion regarding the constitutionality

of the search of his prison cell. This issue was raised, reviewed, and

rejected on direct appeal wherein this court found no violation of appellant’s

constitutional rights. Ford, No. 1686 EDA 2009 at 10-12. Therefore, this

claim fails.

Appellant next complains that “[t]rial counsel was ineffective for failing

to investigate and challenge the second statement [appellant] gave to

police, which was the product of extreme duress.” (Appellant’s brief at 26.)

Once again, appellant complains about the conditions of his transport from

Atlanta to Philadelphia in an attempt to demonstrate the involuntariness of

his second confession. This claim does nothing more than reiterate the

arguments advanced in appellant’s first issue on appeal, which were

unsupported by the record and raised, reviewed, and rejected on direct

appeal. Therefore, this claim must fail.

Appellant next complains that “[t]rial and appellate counsel were

ineffective for failing to challenge portions of the closing argument which

referred to [appellant] as an ‘executioner’ and a ‘cold and calculating person’

and commented on the credibility of the witnesses which was so prejudicial

as to deprive [appellant] of a fair trial.” (Appellant’s brief at 27.) Once

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again, the record belies appellant’s contention. The record reflects that trial

counsel placed numerous objections on the record during the

Commonwealth’s closing argument and that trial counsel also moved for a

mistrial. (Notes of testimony, 2/5/09 at 131-222.) Moreover, on direct

appeal, appellant challenged the Commonwealth’s closing argument,

claiming that the prosecutor engaged in repeated and blatant misconduct for

alleged instances of discussing facts not in evidence, asking the jury to place

themselves in the victim’s shoes, introducing facts not pertaining to the

case, injecting personal opinions, using a faith-based argument, and

revealing that a witness was in protective custody. Ford, No. 1686 EDA

2009 at 23-24. On review, this court agreed with the trial court that the

statements, considered as a whole, did not prejudice the jury in such a

manner that it could not weigh the evidence and render a true verdict. Id.

at 24. Moreover, this court noted that even assuming that the

Commonwealth’s closing remarks were sufficiently prejudicial, “[i]n light of

the overwhelming evidence of guilt presented against [appellant], we would

not reverse and remand the case for a new trial because of those remarks.”

Id. at 24-25. Therefore, this claim fails.

Appellant next complains that “[t]rial and appellate counsel were

ineffective for failing to request a limiting instruction regarding the

references to other crimes evidence that was introduced at trial.”

(Appellant’s brief at 29.) Appellant then contends that:

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[t]he Commonwealth’s witness Detective Zimbrick
testified that [appellant] provided a statement in
which he alleged he was en route to sale [sic] drugs
when the victim was shot. There was a clear
insinuation that [appellant] was involved in drug
dealing activity and the jury could have inferred that
[appellant] was engaged in drug activity.

Id.

The gravamen of appellant’s complaint again goes to the voluntariness

of appellant’s confession. As discussed in appellant’s first claim of error, this

issue was raised, reviewed, and rejected on direct appeal, and appellant’s

statements were admissible. Therefore, counsel cannot be deemed

ineffective for failing to request a limiting instruction for the statements

appellant made in his voluntary confession which were subsequently

admitted into evidence and used against him. Therefore, this claim fails.

Appellant finally argues that “[t]rial and appellate counsel were

ineffective for failing to challenge that the 72.5 to 145-year sentence that

was imposed consecutively to the life sentence was an abuse of discretion.”

(Appellant’s brief at 31.) Following a recitation of inapplicable law, appellant

sets forth the following three-sentence argument:

In the instant matter, [appellant] was already
sentenced to a sentence of life without parole. The
court did not place the appropriate reasons on the
record and used [appellant’s] prior criminal history
which had already been included in his sentencing
guidelines to enhance his sentence. The court could
have imposed a concurrent period of incarceration
which would have been sufficient.

Appellant’s brief at 31.

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J. S63006/16

Appellant waives this claim because he fails to cite to any authority

that supports his position and he fails to fully develop any meaningful

argument concerning this claim. See Commonwealth v. Rompilla, 983

A.2d 1207, 1210 (Pa. 2009); Commonwealth v. Brougher, 978 A.2d 373

(Pa.Super. 2009) (claim is waived if there is no citation to authority);

Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998) (petitioner

waives undeveloped and/or unclear claims). Moreover, the argument that a

concurrent and not a consecutive sentence should have been given would

not have presented a substantial question on appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/6/2016

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