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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DERRICK WHITE
Appellant No. 4056 EDA 2017
Appeal from the PCRA Order December 7, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0012991-2010
BEFORE: OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED MARCH 25, 2019
Appellant, Derrick White, appeals from an order dated December 7,
2017 denying his petition for relief under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
During Appellant’s direct appeal, this Court summarized the factual and
procedural history of this case as follows:
In January 2006, Abdul Taylor (“Victim”) was with Nafeas Flamer
and Hakim Bond at 22nd Street and Sigel Street in South
Philadelphia. Mr. Flamer was waiting for Allen Moment, Jr. to
return a gun he had taken from Mr. Flamer. As Victim walked
down the street with Mr. Flamer and Mr. Bond, they were shot at
from behind. Mr. Flamer later told Victim it was a set-up, and
indicated a desire to seek revenge on Mr. Moment. On January
18, 2006, Victim encountered Mr. Flamer and Mr. Bond in a lot on
Ellsworth Street with some other individuals, several of whom
were armed. Victim heard Mr. Flamer say, “He’s outta here and
we going down there tonight,” to which someone else responded,
“We not going down there tonight. You drawing.” Victim believed
they were plotting to kill Mr. Moment, so he left and informed his
mother of the plot. On the evening of January 20, 2006, Tyree
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Branch came to Victim’s house and told him that Mr. Flamer and
Mr. Bond were mad at Victim because he refused to “ride with
them to go see [Mr. Moment.]” Approximately one hour later,
Victim heard Mr. Flamer’s grandmother scream. Victim looked
outside and saw Nafeas Flamer’s uncle, Marvin Flamer, run and
get into a car. Later that night, police responded to a radio call
reporting a shooting on the 2800 block of Ellsworth Street. Police
found Mr. Moment lying in the street with multiple gunshot
wounds. Mr. Moment was admitted to the hospital in critical
condition.
In another incident on May 21, 2007, police responded to a radio
call of a person with a gun on the 2300 block of Ellsworth Street.
When they arrived, they found Richard Smith lying on the ground
with multiple gunshot wounds. On the way to the hospital, Mr.
Smith told police he believed he was about to die and that he was
shot by Nafeas Flamer and [Appellant]. Mr. Smith, who survived
the shooting, confirmed that Nafeas Flamer and [Appellant] were
the shooters in a subsequent statement to the police.
Mr. Moment remained in critical condition for over two years and
eventually died on August 6, 2008, from injuries he suffered in
the 2006 shooting. Shortly before he died, Mr. Moment gave a
statement to the police about the shooting, which led to the
arrests of Nafeas Flamer, Marvin Flamer, and Hakim Bond. All
three individuals were charged with first-degree murder following
Mr. Moment’s death. Around the time that Mr. Moment died,
Victim told his sister that the Flamers wanted Victim to state
falsely that they were in Victim’s studio on the night of Mr.
Moment’s shooting. Victim also told Mr. Moment’s father that the
Flamers and Hakim Bond had admitted killing Mr. Moment, and
that they wanted Victim to provide them with a false alibi. Victim
told Marvin Flamer, “No, I ain’t giving you no alibi. I’m telling the
truth, you know.” On August 13, 2008, Victim gave a statement
to the police describing his knowledge of Mr. Bond and the
Flamers’ plans to kill Mr. Moment. After Victim cooperated with
police, he acquired a reputation in the community as a “snitch.”
While incarcerated awaiting trial for the murder of Mr. Moment,
Marvin Flamer called his mother, Geneva Flamer, on September
18, 2008, and said he needed to find out what type of evidence
the Commonwealth had against him. Ms. Flamer said they had
“the boy” listed as living at the address of Victim’s girlfriend.
Marvin Flamer asked if [Appellant] had “gone up there” yet, and
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Ms. Flamer said no. Mr. Flamer then said, “Man, they bullshittin’.
Like everybody sayin’ they gonna do something, they don’t do it.”
[Appellant] visited Marvin and Nafeas Flamer in jail on multiple
occasions. In a subsequent telephone conversation on May 6,
2010, Ms. Flamer told Marvin Flamer, “[Appellant] told me to tell
you he send his love.” That same evening, Victim visited his
mother, who was cooking at her home. At one point, Victim left to
buy sugar for his mother. While Victim was walking back to the
house, [Appellant] approached Victim and shot him in the head.
[Appellant] then fled the scene. The following day, a man known
as “Strong” told Marvin Flamer over the phone that Victim had
been killed. Marvin Flamer responded, “Aw. Aw, hey man, that
hurt man.” Two days after the shooting, Ms. Flamer relayed to
Marvin Flamer a conversation with an unidentified person, stating,
“He just said I told you I was comin’ by. Said this is your Mother’s
Day present. Happy Mother’s Day. Have yourself a beautiful
weekend. Enjoy yourself, and he said I told you that I was
gonna[,] Marvin, he said.” The police apprehended [Appellant],
who claimed he had killed Victim in self-defense. In [Appellant]’s
confession, he said he was aware of a “rumor” that Victim had
given a police interview in Mr. Bond and the Flamers’ murder case.
Following the guilt phase of Appellant’s trial, a jury convicted
Appellant of first-degree murder, retaliation against witness,
conspiracy, PIC and VUFA. On February 29, 2012, at the
conclusion of the penalty phase, the jury returned a verdict of
death for the offense of first-degree murder. The court
immediately sentenced Appellant to death in accordance with the
verdict and imposed no further penalty for the remaining offenses.
Appellant filed an appeal with the Pennsylvania Supreme Court.
The Court entered an order on July 2, 2013, which granted in part
Appellant’s petition for remand for the trial court to determine
whether penalty phase counsel was ineffective. On remand, the
trial court granted Appellant a new penalty phase hearing.
Following that hearing, the court quashed the sole aggravating
circumstance and sentenced Appellant, on March 23, 2015, to life
imprisonment without parole for the murder conviction. The court
sentenced Appellant to consecutive terms of three (3) to six (6)
years’ incarceration for retaliation against witness, and three-and-
a-half (3½) to seven (7) years’ incarceration for the VUFA
convictions. The court also imposed concurrent terms of eight (8)
to sixteen (16) years’ incarceration for conspiracy, and one (1) to
two (2) years’ incarceration for PIC.
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Commonwealth v. White, 1152 EDA 2015, at 1-6 (Pa. Super. Feb. 5, 2016)
(unpublished memorandum). On February 5, 2016, this Court affirmed
Appellant’s judgment of sentence. On July 19, 2016, the Supreme Court
denied Appellant’s petition for allowance of appeal.
On June 10, 2017, Appellant timely filed a counseled PCRA petition. On
October 19, 2017, the PCRA court filed a Notice of Intent to Dismiss under
Pa.R.Crim.P. 907. In an opinion and order dated December 7, 2017, the PCRA
court dismissed Appellant’s petition. This timely appeal followed. The PCRA
court did not direct Appellant to file a Pa.R.A.P. 1925 statement.
Appellant raises the following issues in this appeal:
I. Was the Appellant denied his rights under the Sixth Amendment
of the U.S. Constitution and Article I, § 9 of the Pennsylvania
Constitution when trial counsel ineffectively failed to challenge the
voluntariness of Appellant’s statement to police prior to and at
trial?
II. Were Appellant’s rights pursuant to the Fifth, Sixth and
Fourteenth Amendments of the U.S. Constitution and Article I, §
9 of the Pennsylvania Constitution violated based on after
discovered evidence that Det. Pitts has a pattern, practice and
custom of holding suspects and witnesses in isolation for
prolonged periods for purposes of interrogation, coercing false
statements from suspects and witnesses and physically and
psychologically threatening and abusing witnesses and suspects?
III. Was Appellant denied his rights under the Sixth and
Fourteenth Amendments of the U.S. Constitution and Article I, §
9 of the Pennsylvania Constitution when trial counsel ineffectively
failed to present evidence to refute the prosecutor’s inferences
concerning the September 18, 2008 recorded phone
conversation?
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IV. Was Appellant denied his rights under the Sixth and
Fourteenth Amendments of the U.S. Constitution and Article I, §
9 of the Pennsylvania Constitution when trial counsel ineffectively
failed to move to preclude admission of photographs of Appellant
and Flamer in the CFCF visiting and counsel on direct appeal and
ineffectively failed to assert a claim that the prosecution violated
Brady v. Maryland when it failed to turn over to the defense
Flamer’s CFCF Visitor Logs and presented evidence which falsely
inferred that Appellant had visited and conspired with Flamer
three hours prior to the shooting to commit the crime?
V. Is Appellant’s life without the possibility of parole sentence a
“cruel and unusual punishment” under Article I, §§ 1, 9 and 13 of
the Pennsylvania Constitution and the Eighth and Fourteenth
Amendments to the U.S. Constitution?
VI. Were Appellant’s constitutional rights to due process of law
and a fair trial violated by the cumulative impact of trial counsels’
ineffectiveness in violation of the Sixth Amendment?
Appellant’s Brief at 3-4.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). We will not disturb the PCRA
court’s findings unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
To obtain PCRA relief for ineffective assistance of counsel, the petitioner
must establish (1) that the claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction; and, (3) that, but
for the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. Commonwealth
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v. Zook, 887 A.2d 1218, 1227 (Pa. 2005). The petitioner bears the burden
of proving all three prongs of this test. Commonwealth v. Meadows, 787
A.2d 312, 319–20 (Pa. 2001). “Counsel is presumed to be effective and
Appellant has the burden of proving otherwise.” Commonwealth v.
Holloway, 739 A.2d 1039, 1044 (Pa. 1999). “A defendant’s failure to satisfy
even one of the three requirements results in the denial of relief.”
Commonwealth v. Miller, 987 A .2d 638, 649 (Pa. 2009).
When the PCRA petition or the Commonwealth’s answer raises material
issues of fact, the PCRA court shall order a hearing. Pa.R.Crim.P. 908(A)(2).
The court should hold an evidentiary hearing when the petitioner sets forth
sufficient facts upon which the court can conclude that trial counsel may have
been ineffective. Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.
1981).
Appellant asserts that trial counsel was ineffective for failing to move to
suppress his statement to police on the basis that police obtained it through
coercion. Appellant contends that the detectives who questioned him punched
and choked him, psychologically abused him, and forced him to sign the
statement. Moreover, Appellant claims, he and his grandmother informed his
attorneys about the detectives’ conduct, but they still neglected to move to
suppress the statement. The record—particularly Appellant’s trial testimony—
belies Appellant’s allegations of abuse.
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Police detectives initially questioned Appellant on June 12, 2010, and he
claimed he had an alibi that proved he was not the perpetrator. The detectives
immediately questioned the person Appellant identified as his alibi witness,
but that person could not provide an alibi. N.T. 2/21/12, 121-41 (suppression
hearing); 2/24/12, 90-91 (trial).
One month later, on July 22, 2010, the same detectives informed
Appellant that his DNA was found on items recovered near the crime scene.
At that point, Appellant stated that he shot the victim in a moment of terror.
He claimed that the victim had threatened him numerous times in the past,
and when the victim walked up to him from behind, he panicked and shot him
out of fear. N.T. 2/21/12, 141, 145 (Detective Pitts’ suppression hearing
testimony); 2/24/12, 90-107, 112-14 (Detective Pitts’ trial testimony).
Detective Pitts, who took Appellant’s statement, testified that neither he nor
anyone else threatened Appellant or used force against him to induce his
statement. N.T. 2/21/12, 143-45 (suppression hearing); 2/24/12, 95-96
(trial). Appellant testified at trial that the written statement accurately
reflected what he told the detectives, and that his version of events in the
statement was what actually happened. Significantly, Appellant never claimed
that the detectives had threatened or abused him or forced him to provide a
statement. On the contrary, he admitted that (1) all of the constitutional
warnings printed on the statement were read to him; (2) as represented by
the statement, he voluntarily waived his right to remain silent and did so of
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“[his] own free will, without force or fear, and without any threats or promises
having been made to [him];” and (3) he responded affirmatively to the
prosecutor’s question that “[t]he fact that there were no threats or promises,
that’s all true.” N.T. 2/24/12, 94-98; 2/27/12, 36. Appellant cannot now
contradict his own sworn testimony in order to obtain post-conviction relief.
Commonwealth v. Bishop, 645 A.2d 274, 277 (Pa .Super. 1994) (appellant
could not claim that he was entitled to post-conviction relief because trial
counsel had coerced him into waiving his jury trial right, where he testified
during colloquy before trial that he voluntarily waived that right).
In a footnote in his brief, Appellant concedes that he never claimed at
trial that he was threatened or abused by the detectives despite being asked
how they treated him. Appellant claims that he did not reveal the detectives’
tactics during his trial testimony “because he thought that he could only
discuss the abuse at the suppression hearing and that he no longer had the
ability to do so.” Appellant’s Brief at 14 n.2. In fact, prior to Appellant’s
testimony, the court instructed the jury, in Appellant’s presence, that they
could consider Appellant’s statement only if they first determined that he had
voluntarily provided it. N.T. 2/24/12, at 88-89. Thus, Appellant was well
aware when he testified that the voluntariness of his statement, and any
alleged abuse by the detectives, was relevant. Additionally, Appellant had an
obligation to testify truthfully, and as demonstrated above, his testimony
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established that he voluntarily provided the statement to the police. For these
reasons, Appellant’s first argument is devoid of merit.
In his second argument, Appellant claims that he deserves a new trial
based on after-discovered evidence that Detective Pitts, one of the detectives
who took his custodial statement, had a prolonged pattern of coercing false
statements from defendants and witnesses in other cases. The PCRA court
properly denied this argument.
To obtain a new trial based upon after-discovered evidence, “the
defendant must prove, by a preponderance of the evidence, that the evidence:
(1) could not have been obtained before the conclusion of trial by the exercise
of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will
not be used solely to impeach a witness’s credibility; and (4) would likely
result in a different verdict.” Commonwealth v. Murray, 174 A.3d 1147,
1153 (Pa. Super. 2017).
Appellant submitted a decision in another Philadelphia case1 detailing
Detective Pitts’ lengthy pattern of abusive conduct during interrogations of
defendants in other cases. To begin with, this evidence would not likely result
in a different verdict. Regardless of what Detective Pitts did in other cases,
Appellant’s own testimony at trial establishes that his own statement to
the detectives was voluntary. Before Appellant testified, he heard the judge
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1 Commonwealth v. Dwayne Thorpe, CP-51-CR-0011433-2008 (C.P.
Phila., Nov. 3, 2017).
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instruct the jury to refrain from considering his statement to the police unless
it first determined the statement was voluntary. Then, when he took the
stand, he took an oath to testify truthfully. Under these circumstances, had
the detectives actually coerced him into giving a confession, he would have
said so. Appellant, however, said the opposite. He admitted during his
testimony that the detectives read the required constitutional warnings to him,
that he voluntarily waived his right to remain silent, and he responded
affirmatively to the prosecutor’s question that the detectives made no threats
or promises. Accordingly, we decline relief, as we did in another recent
decision involving Detective Pitts. See Commonwealth v. Brown, 134 A.3d
1097, 1108-09 (Pa. Super. 2016) (allegation that Detective Pitts used coercive
interrogation tactics in other cases did not warrant new trial where witnesses
“would allege that Detective Pitts committed misconduct in coercing their
statements in other murder cases, but none of the witnesses can provide any
new evidence concerning his conduct in this case”); see also
Commonwealth v. Johnson, 179 A.3d 1105, 1123 (Pa. Super. 2018)
(detective’s criminal convictions in unrelated matter years after appellant’s
trial were not newly discovered evidence, “for there is no evidence the former
detective did anything inappropriate in the instant matter”); Commonwealth
v. Foreman, 55 A.3d 532, 537-38 (Pa. Super. 2012) (appellant failed to
satisfy fourth prong of after-discovered evidence test where appellant filed to
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show any nexus between his case and criminal charges filed against case
officer on unrelated matter).
In addition, evidence of Detective Pitts’ conduct in other cases did not
warrant relief because it would only have impeached his credibility without
undermining belief in the voluntariness of Appellant’s statement in the present
case—a fact which, as discussed above, Appellant’s own testimony
establishes. Brown, 134 A.3d at 1109 (new trial denied where witnesses’
testimony about Detective Pitts’ misconduct in other cases “would solely be
used to impeach Detective Pitts’ credibility”); Foreman, 55 A.3d at 537-38
(criminal charges against detective in unrelated matter does not meet the
after-discovered evidence test since such evidence would be used solely to
impeach detective’s credibility).2
Next, Appellant argues that trial counsel was ineffective for failing to
refute inferences that the prosecutor drew from the telephone conversation
that Marvin Flamer had from prison with his mother, Geneva Flamer, on
September 18, 2008. No relief is due.
The conversation in question took place while Flamer was in prison
awaiting trial for the murder of Allen Moment. The Commonwealth introduced
the recording as evidence that Flamer, one of Appellant’s co-conspirators,
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2 On August 28, 2018, Appellant filed an application for remand listing
additional cases in which Detective Pitts allegedly committed misconduct
during interrogations. We deny this application for the reasons provided on
pages 9-11, supra.
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wanted Appellant to confront the victim in the present case because he was a
potential witness in the Moment case. Isolating three lines in the recording,
Appellant claims that the conversation was actually about a newspaper’s
misprint of Flamer’s nephew’s address and that trial counsel were ineffective
for failing to “refute the prosecutor’s inferences” that the conversation was
evidence of Flamer’s desire for defendant to confront the victim.
Review of the entire conversation establishes that Appellant’s argument
lacks merit. The relevant portion of the conversation was as follows:
Flamer: I need to find out what type of evidence that they have,
man.
Geneva: What type of what?
Flamer: Evidence do they have against me. I need to find out from
David Walker, my lawyer.
Geneva: The got them in the paper again today.
Flamer: For what?
Geneva: The review.
Flamer: Oh.
Geneva: They got the boy listed as living [at] 1800 N. 29th Street.
This shit getting on my nerves. I’m just really fucking fed up with
everything. Getting on my nerves, for real.
Flamer: North 29th Street.
Geneva: Huh?
Flamer: North 29th Street.
Geneva: Yeah.
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Flamer: They ain’t got me in there?
Geneva: Him and the boy in there, him and the boy is in there.
Yeah.
Flamer: Yo, did what’s his name and them go up there?
Geneva: Who?
Flamer: Heavy [Appellant] and them.
Geneva: Heavy?
Flamer: Yeah, did they go up there?
Geneva: No. Hold on a minute, hold on.
Flamer: Got (indiscernible). (Indiscernible) the PP number.
Geneva: Yeah.
Flamer: Yeah.
Geneva: No, they ain’t go up there yet. (Indiscernible).
Flamer: Man they bullshittin’. Like everybody saying they gonna
do something, they don’t do it.
Geneva: Well they said they was goin’. That’s all I can tell you. I
don’t have, I can’t make nobody do nothing. Yeah, I don’t want
(Indiscernible, talking to someone in the background).
Flamer: Ah, man.
Geneva: Oh Lord.
Flamer: Like I ain’t getting nowhere man. I’m thinking . . .
Geneva: I know. I ain’t getting nothin’ but a damn headache
‘cause I’m tired of it.
Commonwealth Trial Exhibit C-32. Flamer’s own words show that he was
concerned about the evidence the prosecution had against him for killing
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Moment; that he wanted Appellant to “go up there” and “do something” about
the case; and that when he learned that Appellant had not “go[ne] up there
yet,” he became upset: “Man they bullshittin. Like everybody saying they
gonna do something, they don’t do it.” The evidence belies Appellant’s claim
that the conversation was actually about a newspaper’s misprint of Marvin’s
nephew’s address.
Next, Appellant argues that trial counsel was ineffective for failing to
move the Commonwealth from asserting that Appellant met with Marvin
Flamer at the prison three hours before Victim’s murder. In support of this
argument, Appellant emphasizes that the prison visitor logs for Flamer did not
list Appellant as one of his visitors. Appellant further contends that direct
appeal counsel provided ineffective assistance by not claiming that the
Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by not
providing the logs to defendant prior to trial.
Appellant’s ineffectiveness claim against his trial counsel lacks merit.
The Commonwealth introduced a recorded conversation between Flamer and
his mother just three hours before the murder in which Flamer stated that he
saw Appellant earlier that day. Further, despite claiming on the witness stand
that the prison logs would not reflect that he visited Flamer, Appellant
conceded he saw Flamer in prison and even took two photographs with him
there. N.T. 2/27/12, 46-47. The photographs demonstrate that Appellant
visited Flamer at least twice, because Appellant was wearing different shirts
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in each photograph. This evidence entitled the Commonwealth to claim that
Appellant met with Flamer on the date of Victim’s murder.
Appellant’s Brady argument fails as well. To establish a Brady
violation, the defendant must show that “(1) the evidence was suppressed by
the Commonwealth, either willfully or inadvertently; (2) the evidence was
favorable to the defendant; and (3) the evidence was material, in that its
omission resulted in prejudice to the defendant.” Commonwealth v.
Lawrence, 165 A.3d 34, 47 (Pa. Super. 2017)). It does not appear that the
Commonwealth suppressed the visitor logs. Appellant claimed that they did
not include his name, thus suggesting that he knew what they stated.
Moreover, they were not material, because the evidence described above
shows that Appellant visited Flamer multiple times, including the day of
Victim’s murder.
Next, Appellant claims that his sentence of life imprisonment without
parole for his first-degree murder conviction is unconstitutional under Miller
v. Alabama, 567 U.S. 460 (2012). Miller held that the Constitution prohibits
mandatory life sentences without parole for juvenile offenders. Appellant,
however, was twenty years old, and not a juvenile, when he committed these
crimes. Thus, as of this date,3 Miller does not apply to him, so the PCRA
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3 We note that we are presently reviewing, en banc, whether a PCRA petitioner
who was eighteen years and nine months old may obtain relief under Miller.
See Commonwealth v. Lee, 1891 WDA 2016. We make no prediction about
the ultimate outcome of that case.
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court properly denied this claim. Commonwealth v. Furgess, 149 A.3d 90,
93-94 (Pa. Super. 2016) (nineteen-year-old appellant not entitled to relief
under Miller; rejecting argument that he should be considered a “technical
juvenile”).
Finally, Appellant claims that the cumulative prejudice resulting from
the totality of the errors undermined the fundamental fairness of his trial and
denied him due process. This argument fails because none of his arguments
have merit. Commonwealth v. Sneed, 45 A.3d 1096, 1117 (Pa. 2012) (no
basis exists for cumulative prejudice claim where all individual claims are
without merit).
For these reasons, the PCRA court properly denied Appellant’s PCRA
petition.
Order affirmed. Application for remand denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/19
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