Com. v. Nelson, T.

J. S37032/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TYRIK NELSON, : No. 3300 EDA 2018
:
Appellant :

Appeal from the PCRA Order Entered October 23, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0005743-2009,
CP-51-CR-0005745-2009

BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 29, 2020

Tyrik Nelson appeals, pro se, from the October 23, 2018 orders entered

by the Court of Common Pleas of Philadelphia County denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 6541-

6546. After careful review, we affirm.

On February 23, 2010, the trial court convicted appellant of two counts

each of attempted murder, aggravated assault, possessing an instrument of

crime, and recklessly endangering another person, and of one count each of

carrying a firearm without a license and carrying a firearm in public in

Philadelphia,1 following a bench trial. The charges against appellant were set

1 18 Pa.C.S.A. §§ 901(a), 2702(a), 907(a), 2705, 6106(a)(1), and 6108,
respectively.
J. S37032/19

forth in two separate trial court dockets. On April 20, 2010, the trial court

sentenced appellant to an aggregate term of 12-28 years’ imprisonment.

Appellant filed a timely direct appeal to this court. On July 27, 2012,

this court affirmed appellant’s judgment of sentence. Commonwealth v.

Nelson, 55 A.3d 148 (Pa.Super. 2012) (unpublished memorandum). Our

supreme court denied appellant’s petition for allowance of appeal on

February 23, 2017. Commonwealth v. Nelson, 167 A.3d 699 (Pa. 2017).

Appellant filed a timely pro se PCRA petition on June 6, 2017. The trial

court appointed Peter A. Levin, Esq., to represent appellant. On February 8,

2018, appellant filed an amended PCRA petition. The PCRA court filed a notice

of its intention to dismiss appellant’s PCRA petition without a hearing pursuant

to Pa.R.Crim.P. 907 on September 12, 2018. On October 23, 2018, the PCRA

court dismissed appellant’s PCRA petition without a hearing.

Appellant filed a premature pro se notice of appeal to this court on

September 20, 2018. On October 16, 2018, appellant filed a statement of

errors complained of on appeal, even though the PCRA court did not order him

to do so. Appellant waived his right to counsel on appeal of the PCRA court’s

dismissal of his PCRA petition, and the PCRA court permitted Attorney Levin

to withdraw his appearance following a Grazier2 hearing on October 23, 2018.

During the Grazier hearing, the PCRA court ordered appellant to re-file his

notice of appeal.

2 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

-2-
J. S37032/19

Appellant complied and filed a pro se notice of appeal on October 30,

2018. On November 8, 2018, the PCRA court ordered appellant to file a

concise statement of errors complained of pursuant to Pa.R.A.P. 1925(b), and

appellant complied. The PCRA court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on January 31, 2019.

On May 2, 2019, we issued an order directing appellant to show cause

why his appeal should not be quashed pursuant to our supreme court’s holding

in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Appellant filed a

timely response, and this court discharged the rule to show cause, referring

the issue to the merits panel.

Before we address appellant’s issues on appeal, we must first address

whether appellant filed a notice of appeal in compliance with the requirements

set forth in the Pennsylvania Rules of Appellate Procedure and Walker. Of

note, a recent en banc panel of this court observed:

Applying the rules of statutory construction, [our
supreme court] found that the 2013 amendment to
the Official Comment of [Pa.R.A.P.] 341(a) required a
bright-line rule: “Where . . . one or more orders
resolves issues arising on more than one docket or
relating to more than one judgment, separate notices
of appeal must be filed.” [Walker, 185 A.3d] at 977.

Commonwealth v. Johnson, A.3d , 2020 WL 3869723 at *3

(Pa.Super. July 9, 2020) (en banc). The Walker court applied its holding

prospectively to any notices of appeal filed after June 1, 2018. In the instant

case, the notice of appeal was filed on October 30, 2019, and therefore, the

-3-
J. S37032/19

Walker mandate applies. The appeal before us is from two separate orders

filed at each docket number denying appellant’s PCRA petition. A review of

the record demonstrates that appellant filed one notice of appeal including

both docket numbers in violation of our supreme court’s mandate in Walker.

Our inquiry cannot end here. A recent en banc panel of this court held

that we may overlook the requirements set forth in Walker in cases where a

breakdown in the court system occurs. Commonwealth v.

Larkin, A.3d , 2020 WL 3869710 at *3 (Pa.Super. July 9, 2020)

(en banc); see also Commonwealth v. Stansbury, 219 A.3d 157

(Pa.Super. 2019). The panels in both Larkin and Stansbury held that a

breakdown in the court system included instances in which the trial or PCRA

court provides an appellant with misinformation regarding his or her appellate

rights. Larkin, 2020 WL 3869710 at *3; Stansbury, 219 A.3d at 160.

Here, our review of the record reveals a breakdown in the court system

similar to the scenarios presented in Larkin and Stansbury. At the

conclusion of the October 23, 2018 Grazier hearing, the PCRA court instructed

appellant’s former counsel to go over appellant’s appellate rights, which he

did on the record as follows:

[Appellant,] the appeal that you filed to the Superior
Court was filed too early because your case was never
dismissed.

So the Superior Court has sent me a number of orders
and letters asking me to respond as to whether your
appeal should be thrown out because it had not been
dismissed yet.

-4-
J. S37032/19

The latest motion that I filed with the Superior Court
was that the PCRA had not been dismissed, and that
I was taking no position on the appeal being
dismissed, which means -- in other words the Superior
Court is going to dismiss the first appeal you filed
because it’s too early.

Now that your PCRA has officially been dismissed, you
have thirty days from today’s date to file a notice of
appeal to the Superior Court.

Notes of testimony, 10/23/18 at 14 (emphasis added).

Appellant indicated on the record that he understood his appellate

rights. Before adjourning the hearing, the PCRA court said the following to

appellant: “That means[, appellant,] that I expect to receive notice of your

appeal within thirty days, and make sure you send that notice to the Superior

Court as well.” (Id. at 15 (emphasis added).) At no point did either

appellant’s former counsel or the PCRA court notify appellant that he was

required to comply with the mandates of Walker. Accordingly, we will

overlook the requirements of Walker and will proceed to review appellant’s

issues on the merits. See Larkin, 2020 WL 3869710 at *3; Stansbury, 219

A.3d at 160.

Appellant raises the following issues for our review:

1.) Whether the lower court erred in dismissing
PCRA petition without a hearing on all
ineffective assistance of counsel claims:

(A) Trial counsel was ineffective for
failing to file motion for
reconsideration of sentence?

-5-
J. S37032/19

(B) Trial counsel was ineffective for
failing to investigate, interview and
call witnesses to testify?

(C) Trial counsel was ineffective for
failing to protect appellant’s rights
when co-defendant’s statement was
introduced at trial?

(D) Trial counsel was ineffective for
advising appellant to waive his jury
trial right?

2.) Whether PCRA counsel was ineffective by:

(A) Deleting from pro[-]se petition the
Commonwealth committed Brady[3]
violation by withholding police report
that contained names and addresses
of witnesses that gave statements to
Detective Mullen and Officer
Thomas?

(B) Failing to raise trial counsel was
ineffective for failing to raise at
pre-trial, trial, and in post-trial
motions the Commonwealth
committed Brady violations by
withholding the police report that
contained names and addresses of
witnesses that gave statements to
Detective Mullen and Officer
Thomas?

(C) Failing to raise trial counsel’s
ineffectiveness for failing to raise
double jeopardy 5th Amendment
violation where appellant was
convicted and sentenced for
attempted murder and aggravated
assault based on the same conduct?

3 Brady v. Maryland, 373 U.S. 83 (1963).

-6-
J. S37032/19

3.) Whether this case should be remanded to the
PCRA court for an evidentiary hearing to
develop the record on all questions presented
and errors raised?

Appellant’s brief at 4-5 (full capitalization and extraneous capitalization

omitted; bolding and italics added).

When reviewing the denial of relief pursuant to the PCRA, we are

governed by the following standard:

Our standard of review of the denial of a PCRA petition
is limited to examining whether the evidence of record
supports the court’s determination and whether its
decision is free of legal error. Commonwealth v.
Conway, 14 A.3d 101 (Pa.Super. 2011), appeal
denied, [], 29 A.3d 795 ([Pa.] 2011). This Court
grants great deference to the findings of the PCRA
court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513
(Pa.Super. 2007), appeal denied, [], 932 A.2d 74
([Pa.] 2007). We do not give the same deference,
however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super.
2012).

Commonwealth v. Beatty, 207 A.3d 957, 960-961 (Pa.Super. 2019),

appeal denied, 218 A.3d 850 (Pa. 2019).

In his first two issues, appellant raises issues based in claims of

ineffective assistance of counsel.

It is well-settled that counsel is presumed to have
been effective and that the petitioner bears the
burden of proving counsel’s alleged ineffectiveness.
Commonwealth v. Cooper, [], 941 A.2d 655, 664
([Pa.] 2007). To overcome this presumption, a
petitioner must establish that: (1) the underlying
substantive claim has arguable merit; (2) counsel did
not have a reasonable basis for his or her act or

-7-
J. S37032/19

omission; and (3) the petitioner suffered prejudice as
a result of counsel’s deficient performance, “that is, a
reasonable probability that but for counsel’s act or
omission, the outcome of the proceeding would have
been different.” Id. A PCRA petitioner must address
each of these prongs on appeal. See
Commonwealth v. Natividad, [], 938 A.2d 310, 322
([Pa.] 2007) (explaining that “appellants continue to
bear the burden of pleading and proving each of the
Pierce[4] elements on appeal to this Court”). A
petitioner’s failure to satisfy any prong of this test is
fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).

Within his first issue, appellant raises several sub-issues that we will

address individually:

Whether trial counsel was ineffective for failing to file a motion for
reconsideration of sentence[?]

First, appellant contends that trial counsel was ineffective because he

failed to file a motion for reconsideration of sentence on the grounds that the

trial court failed to “give specific attention to” the following factors when

imposing sentence:

(1) [] Appellant had a great deal of family support.

(2) [Appellant] had no prior convictions as an adult.

(3) [Appellant] is an intelligent young man and has
a high school diploma.

(4) [Appellant] grew up in an area where there is a
lot of poverty and crime.

4 See Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987).

-8-
J. S37032/19

(5) Appellant has been employed at [Glaxo] Smith
Kline lab as an assistant for about three years.
He was paid by check and there was nothing
under the table.

(6) The killing of his brother had a profound and
negative effect on him and he went into a shell.

Appellant’s brief at 11 (extraneous capitalization omitted). Appellant further

contends that trial counsel, “should have raised these issues at sentencing[.]”

(Id.)

The record belies appellant’s claims. Indeed, the PCRA court noted the

following:

The sentencing court repeatedly noted that it
possessed and reviewed [appellant’s] pre-sentence
investigation report and mental health evaluation
when considering what sentence to impose[. (Notes
of testimony, 4/20/10 at 6, 17, 44.)] The law
presumes that a sentencing court has weighed the
relevant sentencing considerations where, as here,
the [sentencing] court has consulted a pre[-]sentence
investigation report. See, e.g., Commonwealth v.
Jackson, 722 A.2d 1030, 1034 (Pa. 1999) (“The
presumption in this Commonwealth remains that if a
court has facts within its possession, it will apply
them.”); Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988) (where Pre-Sentence Report exists
appellate court will presume sentencing judge was
aware of defendant’s character and weighed it with
other factors). For this reason alone, counsel properly
declined to raise a meritless challenge to the
[sentencing] court’s supposed “failure to consider” the
factors [appellant] lists[.] Commonwealth v.
Hannibal, 156 A.3d 197, 217 (Pa. 2016) (“claim of
appellate counsel’s ineffectiveness must fail as
counsel cannot be deemed ineffective for failing to
raise a meritless claim”), citing Commonwealth v.
Treiber, 121 A.3d 435, 445 (Pa. 2015). Moreover,
the record reveals that [the sentencing court] did

-9-
J. S37032/19

consider these factors. [(Notes of testimony, 4/20/10
at 17, 18, 20.)] All of [appellant’s] family members
stood to show themselves [] and [appellant’s]
grandmother was called to testify on [appellant’s]
behalf. [(Id. at 18-19.)]

PCRA court opinion, 1/31/19 at unnumbered pages 4-5.

Based on our review of the record, appellant’s claim of ineffective

assistance of counsel is without arguable merit, as counsel cannot be found to

be ineffective for failing to raise a meritless objection. See Hannibal, 156

A.3d at 217. Accordingly, this claim must fail.

Whether trial counsel was ineffective for failing to investigate,
interview, and call witnesses to testify[?]

Next, appellant argues that his trial counsel “was ineffective when he

failed to contact and interview relevant witnesses that would have been

beneficial to [a]ppellant’s defense.” (Appellant’s brief at 12.)

In order to prevail on a claim that counsel failed to contact and interview

a potential witness, a PCRA petitioner must demonstrate, among other things,

that “there is a reasonable probability that the testimony the witness would

have provided would have led to a different outcome at trial.”

Commonwealth v. Pander, 100 A.3d 626, 639 (Pa.Super. 2014) (en banc),

appeal denied, 109 A.3d 679 (Pa. 2015) (citation omitted). Our supreme

court has cautioned that, “[b]oilerplate allegations have never been sufficient

to discharge [a petitioner’s] affirmative burden to rebut the presumption of

- 10 -
J. S37032/19

[counsel] effectiveness.” Commonwealth v. Simmons, 804 A.2d 625, 639

(Pa. 2001) (citations omitted).

Here, appellant’s argument in its entirety is as follows:

One witness gave Officer Thomas a verbal statement
at the scene and another called Detective Mullen to
provide a statement. Appellant asserts that these
witnesses contradict the victim[, Kevin] Rawl’s
testimony that he was shot while on the ground. The
witnesses would say this was untrue as to him being
shot, that he was only beaten.

These witnesses were never investigated by trial
counsel and should have been. The detective had
their names and counsel never attempted to find out
who they were or to interview them. They could have
changed the outcome of the trial.

Appellant’s brief at 12 (extraneous capitalization omitted).

Here, appellant never identified the witnesses in question. Rather, he

provides a boilerplate allegation that two witnesses, had they been

investigated and interviewed by trial counsel, would have contradicted the

victim’s testimony. This is not sufficient to discharge appellant’s burden to

rebut the presumption that trial counsel rendered ineffective assistance.

Simmons, 804 A.2d at 639. Accordingly, appellant’s claim that trial counsel

was ineffective for failing to investigate and interview witnesses must fail.

Whether trial counsel was ineffective for failing to protect appellant’s
rights when co-defendant’s statement was introduced at trial[?]

Appellant further avers that trial counsel rendered ineffective assistance

for “failing to protect [appellant’s Confrontation Clause] right when

- 11 -
J. S37032/19

non-testifying co-defendant Lamont McDowell’s statement naming him as a

participant in the crime was introduced at their joint [bench] trial.”

(Appellant’s brief at 13 (extraneous capitalization omitted).) In his brief,

appellant concedes that his name was redacted when McDowell’s statement

was admitted into evidence, and that his name was replaced with the phrase,

“the other guy.” (Id. at 14.)

Here, appellant failed to establish that he was prejudiced. Indeed,

“[t]his was a bench trial, and a trial court acting as the fact-finder “is

presumed to know the law, ignore prejudicial statements, and disregard

inadmissible evidence.” Commonwealth v. McFadden, 156 A.3d 299, 309

(Pa.Super. 2017), appeal denied, 170 A.3d 993 (Pa. 2017), quoting

Commonwealth v. Smith, 97 A.3d 782, 788 (Pa.Super. 2014). Accordingly,

appellant’s claim of ineffective assistance of counsel for failing to protect

appellant’s rights under the Confrontation Clause must fail.

Whether trial counsel was ineffective for advising appellant to waive
his right to a trial by jury

Finally, appellant avers that trial counsel rendered ineffective assistance

of counsel because he advised appellant to waive his right to a trial by jury.

(Appellant’s brief at 15.) Within his argument, appellant appears to contend

that he was prejudiced because the same judge presided over both his

suppression hearing and trial. (Id. at 15-16.)

- 12 -
J. S37032/19

Appellant’s claim lacks arguable merit. Indeed, our supreme court has

held as follows:

A valid waiver of the right to a jury trial must contain
evidence that the accused understood the
fundamental essentials of a jury trial which are:
“1) that the jury be chosen from members of the
community (i.e., a jury of one’s peers), 2) that the
accused be allowed to participate in the selection of
the jury panel, and 3) that the verdict must be
unanimous.” Commonwealth v. Houck, [] 948 A.2d
780, 787 ([Pa.] 2008); see also [Commonwealth v.
Mallory, 941 A.2d 686, 697 (Pa. 2008)].

Commonwealth v. Miller, 987 A.2d 638, 660 (Pa. 2009).

Here, the trial court conducted the following colloquy on the record in

open court:

THE COURT: I don’t want you to think that there’s
any pressure on you. I mean that. If you have any
doubts whatsoever, let me know.

[Appellant,] I read to you the underlying factual basis
of the allegations. I told you the possible penalties for
them; and I’m now going to speak to you regarding
your decision on the matter of your trial.

You have the right to a jury trial. You have signed the
waiver form, which indicates that you wish to give up
that right to a jury trial and to be tried before me
sitting without a jury.

Now, I have to be sure you’re giving up the rights
you’re giving up.

How old are you?

[Appellant]: 26.

THE COURT: Today, are you under the influence of
any alcohol or controlled substance?

- 13 -
J. S37032/19

[Appellant]: No.

THE COURT: Have you ever been treated in any type
of mental health facility?

[Appellant]: No.

THE COURT: [Appellant,] if you wish, you have the
right to a trial by a jury of your peers, consisting of
residents of Philadelphia over the age of 18 who, by
the answers to their questions of [defense counsel,
the Commonwealth’s attorney,] and myself, would
have shown that they could be fair to you as well as
fair to the Commonwealth.

Once those 12 people were seated, the
Commonwealth would have the burden of proof to
prove your guilt beyond a reasonable doubt to all
12 jurors. A unanimous verdict in a jury case is a
verdict. Eight to six is not a verdict. The verdict, to
be effective, it must be unanimous. It must be 12 to
0, whether that be for guilt or nonguilt.

Do you understand that?

[Appellant]: Yes.

THE COURT: And the Commonwealth would have the
burden of proof to prove your guilt beyond a
reasonable doubt to all 12 of those jurors.

Do you understand that?

[Appellant]: Yes.

THE COURT: By giving up that right to a jury trial,
you’re saying I know the right that I have to a jury
trial, but I’m giving up that right to be tried before
Judge Dempsey.

And I just want to know, is that your decision?

[Appellant]: Yes.

- 14 -
J. S37032/19

THE COURT: Do you have any questions of me
regarding that decision?

[Appellant]: No.

THE COURT: You have spoken to [trial counsel]
regarding that decision?

[Appellant]: Yes.

....

THE COURT: [Appellant], have any promises or any
threats been made to you to give up your right to a
jury trial?

[Appellant]: No.

THE COURT: I will accept the waiver of jury trial.

Notes of testimony, 2/18/10 at 16-19 (full capitalization omitted).

Additionally, appellant completed a written waiver of his right to a trial

by jury. Therein, appellant acknowledged that:

(a) the jury would be chosen from members of the
community thereby producing a jury of his
peers;

(b) any verdict rendered by the jury must be
unanimous, that is, all twelve jurors must agree
before they can return a verdict of guilty; and

(c) he would be permitted to participate in the
selection of the jury.

Waiver of jury trial, 2/18/10 at 1.

Based on our review of the record, appellant knowingly, intelligently,

and voluntarily waived his right to a trial by jury. Accordingly, his claim of

- 15 -
J. S37032/19

ineffective assistance of counsel for advising appellant to waive his right to a

trial by jury is without arguable merit.

Moreover, even if appellant’s claim had arguable merit, it would

nonetheless fail because appellant has failed to establish the requisite

prejudice required for a successful ineffectiveness of counsel claim. As our

supreme court explained, in order to meet the prejudice prong, a petitioner

must allege and prove that “but for counsel’s alleged ineffectiveness, he would

not have waived a jury trial.” Miller, 987 A.2d at 660, citing Mallory, 941

A.2d at 697. Here, appellant makes no such claim. (See appellant’s brief

at 16 (arguing “trial counsel’s failure to handle [a]ppellant’s case properly

clearly prejudiced [a]ppellant”).) Therefore, appellant’s final claim of

ineffective assistance on the part of his trial counsel must fail.

In his second issue, appellant raises an ineffectiveness claim pertaining

to his PCRA counsel. In order to preserve this claim on appeal, an appellant

is required to raise it in a response to the PCRA court’s Rule 907 notice, which

represents an appellant’s first opportunity to raise the issue before the PCRA

court. Commonwealth v. Rykard, 55 A.3d 1177, 1186 (Pa.Super. 2012),

appeal denied, 64 A.3d 631 (Pa. 2013), citing Commonwealth v. Pitts,

981 A.2d 875, 880 n.4 (Pa. 2009). Failure to do so results in waiver of the

claim on appeal. Commonwealth v. Smith, 121 A.3d 1049, 1055 (Pa.Super.

2015), appeal denied, 136 A.3d 981 (Pa. 2016).

- 16 -
J. S37032/19

Here, appellant failed to file a response to the PCRA court’s notice of its

intent to dismiss appellant’s PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907. Rather, appellant raises these claims for the first time on

appeal. Accordingly, appellant waives his claims of ineffective assistance on

the part of PCRA counsel on appeal.

In his third issue, appellant contends that the PCRA court erred when it

did not hold a hearing on appellant’s claims. (Appellant’s brief at 21.) When

determining whether the PCRA court erred when it dismisses a PCRA petition

without a hearing, we are held to the following standard:

The PCRA court has the discretion to dismiss a petition
without a hearing when the court is satisfied “that
there are no genuine issues concerning any material
fact, the defendant is not entitled to post-conviction
collateral relief, and no legitimate purpose would be
served by further proceedings.” Commonwealth v.
Paddy, [] 15 A.3d 431, 442 ([Pa.] 2011) (quoting
Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a
PCRA court’s decision to dismiss a petition without a
hearing, an appellant must show that he raised a
genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.”
Id. (quoting Commonwealth v. D’Amato, [] 856
A.2d 806, 820 [Pa.] 2004)). We stress that an
evidentiary hearing “is not meant to function as a
fishing expedition for any possible evidence that may
support some speculative claim of ineffectiveness.”
Commonwealth v. Jones, [] 811 A.2d 994, 1003 n.8
([Pa.] 2002) (citation omitted). In Jones, we
declined to remand for an evidentiary hearing when
the appellant merely asserted that counsel did not
have a reasonable basis for his lack of action but made
no proffer of evidence as to counsel’s lack of action.

- 17 -
J. S37032/19

Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa. 2013), cert. denied

sub nom. Roney v. Pennsylvania, 574 U.S. 829 (2014).

Here, as noted in detail supra, appellant’s claims of ineffective

assistance of counsel failed for lacking arguable merit, lack of prejudice, and

waiver. Appellant’s argument in the instant case is limited to boilerplate

allegations that his claims are not clear from the record and that genuine

issues of material fact exist. Accordingly, appellant’s third issue is without

merit.

In his brief, appellant appears to raise a fourth issue that was neither

included in his statement of questions presented nor his Rule 1925(b)

statement. Appellant contends that the “cumulative prejudicial effect

described [in his brief] denied appellant due process and effective assistance

of counsel.” (Appellant’s brief at 22 (full capitalization omitted).)

Failure to include an issue in a Rule 1925(b) statement constitutes

waiver of that issue on appeal. Pa.R.A.P. 1925(b)(4)(vii). Accordingly,

appellant’s fourth issue is waived on appeal. Nevertheless, even if appellant

had adequately preserved this issue for appellate review, he would not be

entitled to relief.

[Our supreme court has] often held that “no number
of failed [] claims may collectively warrant relief if
they fail to do so individually.” [Commonwealth v.
Johnson, 966 A.2d 523, 532 (Pa. 2009)] (quoting
Commonwealth v. Washington, [] 927 A.2d 586,
617 ([Pa.] 2007)). However, [the court has] clarified
that this principle applies to claims that fail because
of lack of merit or arguable merit. [Commonwealth

- 18 -
J. S37032/19

v. Sattazahn, 952 A.2d 640, 671 (Pa. 2008)]. When
the failure of individual claims is grounded in lack of
prejudice, then the cumulative prejudice from those
individual claims may properly be assessed. Id.;
Johnson, supra at 532 (citing Commonwealth v.
Perry, [] 644 A.2d 705, 709 ([Pa.] 1994), for the
principle that a new trial may be awarded due to
cumulative prejudice accrued through multiple
instances of trial counsel’s ineffective representation.

Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011).

Here, only one of appellant’s issues pertaining to ineffective assistance

of counsel was disposed of due to a lack of a showing of prejudice. The

remaining issues failed either due to a lack of arguable merit or were waived

on appeal. Accordingly, even if he had preserved this issue for appellate

review, appellant’s claim of cumulative prejudice from multiple errors would

fail for lack of merit.

Orders affirmed.

Judgment Entered.

JosephD.Seletyn,Esq.
Prothonotary

Date: 9/29/20

- 19 -