Com. v. Maldonado, A.

J-A16028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL MALDONADO :
:
Appellant : No. 1646 EDA 2021

Appeal from the PCRA Order Entered July 20, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011234-2007

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL MALDONADO :
:
Appellant : No. 1647 EDA 2021

Appeal from the PCRA Order Entered July 20, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011255-2007

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 20, 2023

Angel Maldonado (Appellant) appeals from the orders1 entered in the

Philadelphia County Court of Common Pleas denying his first petition filed

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellant filed two separate notices of appeal for both criminal dockets.
Therefore, he has complied with Commonwealth v. Walker, 185 A.3d 969,
(Footnote Continued Next Page)
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under the Post-Conviction Relief Act (PCRA).2 Appellant was convicted of two

counts of first-degree murder, and one count each of attempted murder,

aggravated assault, possession of a firearm prohibited, firearms not to be

carried without a license, and possession of an instrument of crime,3 and

sentenced to an aggregate term of life imprisonment. On appeal, he asserts

the PCRA court erred when it dismissed, without holding an evidentiary

hearing, his challenges to trial counsel’s ineffectiveness for failing to object to

the trial court’s jury instructions pertaining to the standard of proof and certain

witness testimony. For the reasons below, we affirm.

Appellant, along with his co-defendant Angelo Martinez, shot and killed

two individuals and seriously wounded a third person following a verbal

dispute on a street corner in Philadelphia. The PCRA court summarized the

underlying facts as follows:

____________________________________________

977 (Pa. 2018) (separate notices of appeal must be filed when a single order
resolves issues arising on more than one trial court docket), overruled in
part, Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021) (reaffirming
that Pa.R.A.P. 341 requires separate notices of appeal when single order
resolves issues under more than one docket, but holding Pa.R.A.P. 902
permits appellate court to consider appellant’s request to remediate error
when notice of appeal is timely filed). This Court consolidated these appeals
sua sponte on September 7, 2021. Order, 9/7/21.

2 42 Pa.C.S. §§ 9541-9546.

318 Pa.C.S. §§ 2502(a), 901(a), 2702(a), 6105(a)(1), 6106(a)(1), 2705, and
907(a), respectively.

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On June 21, 2007, at approximately 5:00 p.m., Jennifer
Patrick (“Jennifer”) and her sister, Diane Patrick (“Diane”)[4] were
outside their home with their five . . . year old niece and neighbors
near the corner of Emerald and Somerset Streets in . . .
Philadelphia. At that time, [Appellant] and Angelo Martinez drove
Martinez’s Pontiac Bonneville to that location where they began
“setting up the corner” to sell drugs. Diane approached
[Appellant] and told him “We’re not allowing that here[.]”
[Appellant] responded, “it’s me Dirt, it’s me.” Diane replied, “I
don’t care who it is, it’s not happening here.” Martinez, standing
next to [Appellant], pointed to the sisters and said “Man, F*ck
them bitches, f*ck them!”

Jennifer and Diane then began walking their niece to the
corner store [and a]s the sisters walked away, [Appellant] pulled
up his shirt and yelled “F*ck it,” revealing a black handgun in his
waistband. Martinez continued to point at the sisters yelling,
“F*ck them bitches!” After they returned from the store, Jennifer
brought her niece into her house. Diane approached [Appellant]
and Martinez, who were still standing on the corner, and told them
both to leave.

Raheem Haines, who lived across the street and was friends
with Jennifer and Diane, heard the argument and came out of his
house to stop the argument. As the argument escalated, Jennifer
tapped her finger on [Appellant]’s forehead and said, “You’re a
f*cking nut for showing a gun while my niece is out here.” In
response, [Appellant] pulled out his gun and shot Jennifer once in
her stomach. Jennifer fell to the ground and cried out[,] “He shot
me!” Diane began to scream and hit [Appellant] with her fists.
[Appellant] then shot Diane in her chest and neck.

As . . . Haines tried to intervene, Martinez punched [him]
and threw him to the ground. [Appellant] then repeatedly shot
[Haines] in the head and torso as he laid on the ground. As
Jennifer crawled away, [Appellant] continued to shoot at her, as
he and Martinez ran to Martinez’s car and drove away from the
scene. Diane was pronounced dead at a nearby hospital.
[ ]Haines was pronounced dead at the scene. Jennifer was taken

____________________________________________

4Throughout the trial, Diane Patrick is also referred to as “Dirt” or “Day Day.”
N.T. Trial (Jury) Volume 1, 4/27/10, at 6.

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to a hospital and underwent successful emergency surgery for her
gunshot wound.

Police responded to the scene and began searching for
[Appellant] and Martinez. The pair were caught and arrested after
they were identified by eyewitnesses. A Beretta 9mm handgun
was recovered after a search of Martinez’s car.

PCRA Ct. Op. 9/10/21, at 1-2.5

Appellant was subsequently charged with two counts of first-degree

murder, and one count each of attempted murder, aggravated assault,

possession of a firearm prohibited, firearms not to be carried without a license,

carrying a firearm on public streets of Philadelphia, reckless endangerment of

another person (REAP), conspiracy, and possession of an instrument of crime.6

This case proceeded to a jury trial, where he was jointly tried with co-

defendant Martinez.7

At trial, the Commonwealth presented the testimony of, inter alia,

eyewitness and victim Jennifer Patrick. Relevant to this appeal, we note that

during her testimony, the trial court gave a curative instruction regarding

certain statements she made about medication and being in a relocation

program and comments the court made about trial counsel. Notably, trial
____________________________________________

5 The PCRA court gleaned its recitation of facts from this Court’s decision
concerning co-defendant Martinez’s PCRA appeal. See PCRA Ct. Op. at 2 n.1,
citing Commonwealth v. Martinez, 2821 EDA 2010 (unpub. memo. at 2-4)
(Pa. Super. Feb. 14, 2012).

6 18 Pa.C.S. §§ 6108, 903(a)(1), respectively.

7Martinez was charged with inter alia, two counts of third-degree murder, one
count of attempted murder, and one count of aggravated assault. 18 Pa.C.S.
§ 2502(c).

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counsel did not object to the curative instruction. At the conclusion of trial,

and pertinent to this appeal, the court charged the jury on the “beyond a

reasonable doubt” standard, to which trial counsel also did not object.

The jury found Appellant guilty of two counts of first-degree murder,

and one count each of attempted murder, aggravated assault, possession of

a firearm prohibited, firearms not to be carried without a license, and

possession of an instrument of crime.8

On May 12, 2010, the trial court sentenced Appellant as follows: (1) on

both counts of first-degree murder, a term of life imprisonment; (2) on

attempted murder, a consecutive term of 20 to 40 years’ incarceration; (3)

on possession of firearms prohibited, a concurrent term of three years’ and

six months’ to seven years’ incarceration; (4) on firearms not to be carried

without a license, a concurrent term of three years’ and six months’ to seven

years’ incarceration; and (5) on possession of an instrument of crime, a

concurrent term of two years’ and six months’ to five years’ incarceration.

Appellant’s conviction for aggravated assault merged with attempted murder

for sentencing purposes.

Appellant took a direct appeal with this Court, which affirmed the

judgment of sentence on February 14, 2012. Commonwealth v.

Maldonado, 1595 EDA 2010 (unpub. memo.) (Pa. Super. Feb. 14, 2012).

____________________________________________

8Appellant was found not guilty of conspiracy and the remaining charges were
nolle prossed.

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The Pennsylvania Supreme Court denied Appellant’s subsequent petition for

allowance of appeal on March 21, 2013.9 Commonwealth v. Maldonado,

448 EAL 2012 (Pa. March 21, 2013).

Appellant timely filed a pro se PCRA petition, his first, on February 28,

2014.10 The PCRA court appointed David Rudenstein, Esquire, who filed an

amended PCRA petition on October 31, 2017, where he raised claims of

ineffective assistance of counsel for failing to raise certain claims on appeal.11

Appellant’s Amended Petition Under Post-Conviction Relief Act at ¶¶ 12-13.

Counsel then filed a supplemental amended petition on August 11, 2019,

challenging the trial court’s jury instruction on reasonable doubt and claiming

both trial and appellant counsel were ineffective for failure to preserve this

claim on appeal. Appellant’s Supplemental Amended Petition Under Post-

Conviction Relief Act, 8/11/19, at ¶ 3. The Commonwealth filed a motion to

dismiss and a supplemental motion to dismiss on May 1, 2018, and September

____________________________________________

9 The PCRA court and Appellant each state he did not file a petition for
allowance of appeal with the Supreme Court. The record reflects otherwise.
See Maldonado, 448 EAL 2012.

10 Appellant asserts in his brief that he filed his first PCRA petition on
September 18, 2014. Appellant’s Brief at 15. The certified record reflects
February 28th. Accordingly, we will refer to that day as the operative filing
date.

11According to Appellant’s amended petition, he was appointed counsel who
withdrew from representation before the PCRA court appointed Attorney
Rudenstein. Appellant’s Amended Petition Under Post-Conviction Relief Act,
10/31/17, at ¶ 7. Appellant asserts this is a first timely PCRA petition. Id. at
¶ 9.

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J-A16028-22

9, 2019, respectively. The PCRA court filed a notice of dismissal pursuant to

Pa.R.Crim.P. 907 on October 30, 2019. Appellant then filed a pro se motion

requesting an extension of time to retain private counsel. Appellant’s Motion

for Enlargement of Time In Order to Retain Private Counsel, 11/13/19.

On December 3, 2019, Appellant filed a motion to proceed pro se and

an amended PCRA petition. On July 10, 2020, the PCRA court removed

Attorney Rudenstein and appointed Joseph Schultz, Esquire to represent

Appellant. On February 21, 2021, Attorney Schultz filed a supplemental PCRA

petition. In this supplemental petition, Appellant incorporated the claims in

his previous October 13, 2017, and August 11, 2019, petitions and raised a

new claim, arguing trial counsel was ineffective for failing to object to an

improper curative instruction after Jennifer’s testimony. Appellant’s

Supplemental Petition Seeking Post-Conviction Relief, 2/21/21, at ¶¶ 5-6, 8,

10.

On April 26, 2021, the Commonwealth filed a Supplemental Motion to

Dismiss Appellant’s most recently filed PCRA petition. On June 5, 2019, this

matter was administratively reassigned to the undersigned Honorable Charles

A. Ehrlich, for disposition. This matter was then listed for review of the above

referenced petitions and responses, and argument before the PCRA court. On

May 27, 2021, the PCRA court, after extensive assessment of the briefs, law,

and arguments presented by counsel, issued a 20-day Notice of Dismissal

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pursuant to Rule 907. Appellant did not file a response. Thereafter, on July

20, 2021, the PCRA court formally dismissed Appellant’s PCRA petition.12

Appellant filed a timely notice of appeal at each of his dockets and

complied with the PCRA court’s order to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court

issued a Pa.R.A.P. 1925(a) opinion on September 10, 2021.

On appeal, Appellant raises the following issues:

1. [Whether t]he PCRA court erred when it denied, without an
evidentiary hearing, [ ] Appellant’s request for a new trial
based on counsel’s ineffectiveness for failing to object to the
trial court’s deficient reasonable doubt instruction[?]

2. [Whether t]he PCRA court erred in denying, without an
evidentiary hearing, [ ] Appellant’s argument that trial counsel
was ineffective for failing to object to an improper curative
instruction from witness Jennifer Patrick[?]

Appellant’s Brief at 15, 22 (some capitalization omitted).13

Preliminarily, we note the relevant standard of review for denial of a

PCRA petition:

We must determine whether the findings of the PCRA court are
supported by the record and whether the court’s legal conclusions
____________________________________________

12 We note that co-defendant Martinez also filed a PCRA petition raising
substantially similar issues to Appellant’s present PCRA petition. The PCRA
court dismissed Martinez’s petition, and a panel of this Court recently affirmed
the court’s decision. See Commonwealth v Martinez, 1921/1922 EDA 2020
(unpub. memo.) (Pa. Super. March 8, 2022).

13 Appellant’s “Statement of Questions Involved” included issues that are
either not complete sentences or unrelated to the claims he raised in the
argument section of his brief. Appellant’s Brief at 8. This does not impact our
review as Appellant includes his claims in the argument section of his brief.

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J-A16028-22

are free from error. The findings of the PCRA court and the
evidence of record are viewed in a light most favorable to the
prevailing party. The PCRA court’s credibility determinations,
when supported by the record, are binding; however, this [C]ourt
applies a de novo standard of review to the PCRA court’s legal
conclusions. We must keep in mind that the petitioner has the
burden of persuading this Court that the PCRA court erred and
that such error requires relief. Finally, this Court may affirm a
valid judgment or order for any reason appearing of record.

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations

omitted).

With respect to the PCRA’s timeliness requirements, this Court has

explained:

Section 9545 of the PCRA expressly states that a PCRA petition
“shall be filed within one year of the date the judgment becomes
final.” 42 Pa.C.S. § 9545. A judgment of sentence becomes final
at the conclusion of direct review, including discretionary review,
or at the expiration of time for seeking the review. [42 Pa.C.S.]
§ 9545(b)(3). “Our courts have strictly interpreted this
requirement as creating a jurisdictional deadline.” A court may
not address the merits of the issues raised if the PCRA petition
was not timely filed.

Id. (some citations omitted).

In the instant case, this Court affirmed Appellant’s judgment of sentence

on February 14, 2012, and the Pennsylvania Supreme Court denied his

petition for allowance of appeal on March 21, 2013. See Maldonado, 1595

EDA 2010; Maldonado, 448 EAL 2012. Therefore, he had 90 days — or until

June 19, 2013 — to file a writ of certiorari with the United States Supreme

Court. See S.Ct.R. 13(1). Appellant did not, and thus, his judgment of

sentence became final on June 19th. Appellant then had one year, or until

June 19, 2014, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1).

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Appellant filed the present petition on February 28, 2014, and as such, it is

timely.

Both of Appellant’s claims challenge the PCRA court’s dismissal of his

petition without an evidentiary hearing on his ineffectiveness claims. As such,

we preliminarily note, counsel is presumed to have rendered effective

assistance. Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super.

2014) (citation omitted). To prevail on an ineffectiveness claim, the petitioner

must establish the following factors: (1) the underlying claim has arguable

merit; (2) counsel had no reasonable basis for his action or inaction; and (3)

the defendant was prejudiced. Id. at 1020. Further, the defendant’s claims

“must meet all three prongs of the test for ineffectiveness, if the court can

determine without an evidentiary hearing that one of the prongs cannot be

met, then no purpose would be advanced by holding an evidentiary hearing.”

Id. (citation omitted).

Where a court has dismissed a PCRA petition without an evidentiary

hearing, we review the decision for an abuse of discretion:

[T]he right to an evidentiary hearing on a post-conviction petition
is not absolute. It is within the PCRA court’s discretion to decline
to hold a hearing if the petitioner’s claim is patently frivolous and
has no support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.

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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted). “[T]o obtain reversal of a PCRA court’s decision to dismiss a petition

without a hearing, an appellant must show that he raised a genuine issue of

fact which, if resolved in his favor, would have entitled him to relief, or that

the court otherwise abused its discretion in denying a hearing.”

Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016).

In his first claim, Appellant argues trial counsel was ineffective where

he did not object to the trial court’s “reasonable doubt” instruction.

Appellant’s Brief at 18, 22. After review, we conclude no relief is due.

Keeping our standard of review in mind, we are guided by the following.

“[I]t is an unquestionable maxim of law in this Commonwealth that a trial

court has broad discretion in phrasing its instruction, and may choose its own

wording so long as the law is clearly, adequately, and accurately presented to

the jury for its consideration.” Commonwealth v. Antidormi, 84 A.3d 736,

754 (Pa. Super. 2014) (citations omitted). Thus, this Court will not find jury

instructions erroneous when, taken as a whole, they adequately and

accurately set forth the applicable law. Commonwealth v. Daniels, 963

A.2d 409, 410 (Pa. 2009).

In the present matter, at the conclusion of trial, the court gave the jury

the following instruction regarding the “reasonable doubt” standard:

[L]et’s be clear about reasonable doubt. I find it helpful to think
about it in this way. Now, each one of you has somebody in your
life you love. That’s the benefit of me having the opportunity to
talk with you individually. I know there is someone you love. Take
a moment and think if your precious one, the one you love, is told

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by their physician that they have life-threatening condition and
that . . . life-threatening condition required [surgery]. Now,
you’re probably going to ask for a second. You might even ask
for a third opinion. If you’re like me, you will start researching
the disease. You will start asking questions. What do you know?
What do you know about this disease? What do you know about
the treatment protocols? Who are the best doctors in town?
[W]ho are the best doctors in the country? What do I do to get
the best care possible for my loved one? What are my options?

Now, ladies and gentlemen, at some moment the question
will be called, are you going forward with the surgery to your loved
ones or not? If you go forward — because you have moved beyond
all doubt. There are no guarantees. There are no promises. If
you go forward, it’s because you have moved beyond all
reasonable doubt. A reasonable doubt must be a real doubt. It
may not be a doubt that is imagined or manufactured to avoid
carrying out an unpleasant responsibility. You may not find a
citizen guilty based upon a mere suspicion of guilt. The
Commonwealth bears its burden on proving each defendant guilty
beyond a reasonable doubt. If the Commonwealth has met that
burden, then the person is no longer presumed to be innocent and
you should find him guilty. On the other hand, if the
Commonwealth has not met its burden, you must find him not
guilty.

N.T. Trial (Jury) Vol. 1, 5/4/10, at 109-11 (paragraph break added).

In his argument, Appellant asserts the jury instruction “impermissibly

lowered the standard of proof required” to convict Appellant, and therefore, it

violated constitutional protections. Appellant’s Brief at 18. Appellant states

that the trial court’s jury instruction was substantially similar to the instruction

in a federal district court decision, Brooks v. Gilmore, 2017 WL 3475475

(E.D.Pa. 2017), which was deemed “constitutionally infirm.” Id. at 18-19.

Appellant claims the analogy — that a loved one is sick and needs surgery —

in the instruction “fails to even present a decision” and is a misstatement of

law for the beyond a “reasonable doubt” standard. Id. at 21. Further,

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Appellant maintains the jury instruction had a “structural error,” causing him

prejudice. Id. citing Sullivan v. Louisana, 508 U.S. 275, 281-82 (1993)

(opining “‘[B]eyond a reasonable doubt’ factual finding cannot be made where

the instructional error consists of a misdescription of the burden of proof[,]”

and therefore, constitutionally deficient reasonable doubt instruction cannot

be harmless error); Weaver v. Massachusetts, 137 S.Ct. 1899, 1902-04

(U.S. 2017) (stating “[A] structural error, which ‘affect[s] the framework

within which the trial proceeds, defies harmless error analysis[,]’” but

defendant was not entitled to relief on an ineffectiveness claim where he failed

to show prejudice) (citation omitted). For the above reasons, Appellant

argues the PCRA court erred when it denied his petition without an evidentiary

hearing. Id. at 15, 22.

We note that until very recently, this Court repeatedly rejected similar

Brooks-based challenges to the “reasonable doubt” instruction. See

Martinez, 1921/1922 EDA 2020 at *10-*11; Commonwealth v. Parker,

1104 EDA 2019 (unpub. memo.) (Pa. Super. July 12, 2021) (concluding

Brooks is not persuasive and even if the Court were to accept this analysis,

counsel cannot be held ineffective for failing to predict a change in the law

where the defendant’s trial was in 2011, and Brooks was decided in 2017);

Commonwealth v. Gamble, 2944 A.3d 2019 (unpub. memo.) (Pa. Super.

June 8, 2021) (determining Brooks is not persuasive authority and this

argument afforded the defendant no relief).

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However, on November 23, 2022, after Appellant submitted his brief in

the instant matter, the Pennsylvania Supreme Court issued Commonwealth

v. Drummond, __ A.3d __, 2022 WL 1717610 (Pa. Nov. 23, 2022), which

concluded that the “reasonable doubt” instruction, like the one before us

presently, was reasonably likely to make jurors incorrectly apply a diminished

standard of proof.

In Drummond, the defendant shot and killed two people. Drummond,

28 EAP 2021 at *3. At trial, the court gave a jury instruction almost identical

to the one at issue. Id. at *9-*11. The jury found the defendant guilty of,

inter alia, two counts of first-degree murder. Id. at *11-*12. A panel of this

Court affirmed the defendant’s sentence, and the Supreme Court denied his

petition for allowance of appeal. Id. at *12. He then filed a PCRA petition

alleging his counsel was ineffective for failing to object to the jury instruction.

Id. The PCRA court dismissed his petition, stating “the instruction, when read

in the context of the court’s instructions in their entirety, did not diminish the

reasonable doubt standard.” Id. at *12-*13. A panel of this Court affirmed

the order, concluding the claim had no arguable merit because an “imperfect

jury instruction does not trigger automatic reversal, so long as the balance of

the instructions, ‘taken as a whole, fairly and accurately convey[ ] the

essential meaning.’” Id. at *13-*14. The Supreme Court granted the

defendant review of this claim. Id. at *14.

Ultimately, the Court determined the defendant’s claim — that his

counsel was ineffective for failing to object to the reasonable doubt instruction

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— had arguable merit. Drummond, 28 EAP 2021 at *22. Specifically, it

stated:

Methods of hypothetical explication and idiosyncratic analogy
allow for significant, subjective variance in how the criminal proof
standard is executed. A criminal jury is made up of twelve
individuals tasked with deliberating and reaching a verdict. Each
juror arrives in the jury box with life experiences of his or her own.
Each juror would act in his or her own individual manner when a
“precious one’s” life is on the line. Each juror would bring to bear
different religious, moral, and/or social beliefs in reaching that
decision. Juries are comprised of people of different
temperaments, backgrounds and identities, people who come
from different regions and outlooks. Such diversity necessarily
would produce a different “gut feeling” in each juror about surgery
decisions for “precious ones.” When a trial judge tells the jurors
to do anything other than objectively evaluate the evidence, the
court effectively creates twelve standards of review, each one
different from the next, silently generated in each individual
juror’s mind based upon the individual lived experiences and world
views of that particular juror. For some, that standard might be
higher than the point at which reasonable doubt exists on a
continuum. For others, it will be far lower. That is where the
constitutional violation occurs, down in the murky realm that lies
below proof beyond a reasonable doubt, where probabilities,
whims, personal defaults, shorthands, habits of mind, and
suppositions exist.

Drummond, 28 EAP 2021, at *32-*33. The Court then opined:

We recognize that the problematic aspect of the trial court’s
reasonable doubt instruction was bookended by other, correctly-
stated and objectively-based reasonable doubt instructions. We
do not overlook our practice of assessing instructions in the
context of the trial judge’s instructions as a whole, rather than in
isolation. We have considered all of the relevant instructions
provided to the jury in this case in their entirety, and in the
manner in which the instructions interact. Such analysis does not
ameliorate the error, nor does it undermine our conclusion that it
was reasonably likely that the jury here considered the
evidence using a lower standard of proof. The principle of
considering instructions as a whole might suffice to salvage a

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charge when a judge has made a minor misstatement in some
peripheral instruction. But this approach offers no safe harbor
when the misstatement confuses and distorts the most
fundamental principle in our criminal law and when it
instructs jurors to perform their otherwise objective task
by likening it to an impassioned, last-ditch plea to save a
loved one. Under these circumstances, comparing the valid
portions of the instruction against the invalid ones does not suffice
to neutralize the prejudicial effect of the error. If it did, there
never could be a successful challenge to an errant reasonable
doubt instruction so long as the judge correctly mentioned the
standard somewhere — anywhere — in the record. If that were
the case, then the Fourteenth Amendment would be toothless in
this context.

Drummond, 28 EAP 2021, at *39-*40 (emphases added). Relying on

Brooks, the Court also stated the similar instruction “allows for an acquittal

to occur only after the jury finds a very high degree of doubt, not just a

reasonable one.” Id. at *43.

Nevertheless, the Supreme Court concluded that despite the claim

having arguable merit, the defendant could not demonstrate that his counsel

acted unreasonably, opining:

It is well-settled that counsel “cannot be held ineffective
for failing to anticipate a change in the law.” At the time
of [the defendant’s] trial in December 2010, no
Pennsylvania court ever had invalidated jury instructions
that used the hypotheticals which we disapprove of today.
To the contrary, at the time, the Superior Court had upheld such
instructions, albeit in non-precedential decisions, and this Court
had never addressed the issue. Thus, based upon the law extant
in 2010, counsel was under no reasonable obligation to
raise a challenge to the instruction, as any such objection
would have lacked a then-existing legal foundation.
Counsel was not required to anticipate, nor could he have
foreseen, that this Court would find the instruction to be
constitutionally defective over a decade later. For this
reason, counsel cannot be deemed ineffective.

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Drummond, 28 EAP 2021 at *45-*46 (footnotes omitted; emphases added).

We conclude Drummond is indistinguishable from the present matter on this

issue and governs our analysis.14

Here, as noted above, the jury instruction administered at trial and

Appellant’s claim was almost identical to that of Drummond. See

Drummond, 28 EAP 2021 at *9-*11. Therefore, there is arguable merit to

Appellant’s assertion. Nevertheless, pursuant to Drummond, counsel “was

under no reasonable obligation to raise a challenge to the instruction, as any

such objection would have lacked a then-existing legal foundation” and “was

not required to anticipate, nor could he have foreseen, that this Court would

find the instruction to be constitutionally defective over a decade later.” Id.

at *45-*46. For that reason, we agree with the PCRA court’s determination,

albeit for differing reasons,15 that Appellant’s ineffectiveness claim must fail.
____________________________________________

14 “Pennsylvania appellate courts apply the law in effect at the time of the
appellate decision. This means that we adhere to the principle that a party
whose case is pending on direct appeal is entitled to the benefit of changes in
law which occur before the judgment becomes final.” Commonwealth v.
Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (citations and quotation
marks omitted).

15 See Montalvo, 205 A.3d at 286 (“[T]his Court may affirm a valid judgment
or order for any reason appearing of record.”). Without having Drummond
as precedent when it wrote its Rule 1925(b) opinion, the PCRA court concluded
Appellant failed to establish his claim had arguable merit and as such, was not
entitled to an evidentiary hearing. The court provided the following rationale
for its decision: (1) Brooks is not controlling law in the present matter; (2)
this Court has affirmed the use of this particular jury instruction in multiple
non-precedential decisions both prior to and following Appellant’s trial; (3)
federal courts in the Eastern District of Pennsylvania have similarly upheld the
(Footnote Continued Next Page)

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See id. at *45-*46 (counsel cannot be ineffective for failing to object to a jury

instruction that had not been previously “invalidated” by a Pennsylvania

court). Appellant failed to establish the second prong of the ineffectiveness

test — that trial counsel did not act reasonably when she did not object to the

trial court’s instruction as she could not predict a change in law — and as such,

his claim cannot succeed. See Charleston, 94 A.3d at 1020. No relief is

due. See Johnson, 139 A.3d at 1273; Wah, 42 A.3d at 338.

In his second claim, Appellant argues trial counsel was ineffective for

failing to object to the trial court’s curative instruction that purportedly

bolstered Jennifer Patrick’s testimony. See Appellant’s Brief at 25-26.

With our standard of review in mind, we note the following. Improper

bolstering occurs when the government’s prestige is placed, normally by the

prosecution, behind a witness and “assures the jury that the witness is

credible, and such assurance is based on either the prosecutor’s personal

knowledge or other information not contained in the record.”

Commonwealth v. Ramos, 231 A.3d 955, 959 (Pa. Super. 2020). Though

a prosecutor may not reassure a jury as to a witness’s credibility, they “may

make fair comment on the admitted evidence[.]” Commonwealth v.

____________________________________________

constitutionality of similar instructions; (4) jury instructions are within the
discretion of the trial court and “was a proper and accurate example used to
explain a complicated legal concept[;]” and (5) when read in context of the
entire jury charge, the analogy provided to the jurors did not elevate the level
of doubt needed to acquit Appellant. PCRA Ct. Op. at 9-11.

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Sanchez, 82 A.3d 943, 981 (Pa. Super. 2013). Such comments “must be

evaluated in the context in which the comment was made.” Commonwealth

v. Reid, 259 A.3d 395, 429 (Pa. 2021). A trial court does not err where it

“merely allude[s] to evidence produced by the Commonwealth at trial while

instructing the jury that it could accept all, part, or none of the evidence.”

Commonwealth v. Fletcher, 750 A.2d 261, 271 (Pa. 2000), abrogated on

other grounds, Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003). We

presume that the jury follows the trial court’s instructions. Commonwealth

v. Arrington, 86 A.3d 831, 853 (Pa. Super. 2014).

By way of background, the Commonwealth called Jennifer to testify as

an eyewitness and victim to the incident. Jennifer expressed confusion during

her examination about the general timeline of this incident as well as unrelated

matters and the following exchange occurred:

[Appellant’s trial counsel]: Do you remember that at the
preliminary hearing? [The Commonwealth] said to you[,] you
have to go take care of your bench warrant?

[Jennifer]: I know. But I took care of my bench warrant.

[Appellant’s trial counsel]: I know you did. But I’m talking
about before you saw the detectives. You had an outstanding
bench warrant?

[Jennifer]: Yes.

[Appellant’s trial counsel]: When they came and got you?

[Jennifer]: Yes.

[Appellant’s trial counsel]: They didn’t lock you up for that,
did they?

[Jennifer]: For the bench warrant?

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[Appellant’s trial counsel]: For the bench warrant.

[Jennifer]: No. Because I got it lifted.

[Appellant’s trial counsel]: You got it lifted about four days
later. Are you with me? Do you remember that?

[Jennifer]: Yes.

[Appellant’s counsel]: What happened in those four days?
Did you stay in jail before you testified at the preliminary hearing
or were you allowed to go home?

[Jennifer]: I was in jail.

[Appellant’s trial counsel]: I’m sorry?

[Jennifer]: I was locked up.

[Appellant’s trial counsel]: How long were you locked up
before you[ —]

[Jennifer]: A good week. Not even a week.

[Appellant’s trial counsel]: Your Honor, I would just ask
defense counsel. I think Ms. Patrick is clearly confused.

[Trial court]: I think we are totally confused now. Let’s
clean this up. You got arrested in November of 2006?

[Jennifer]: Right.

[Trial court]: When you got arrested, you were in jail for a
little while; right?

[Jennifer]: Yes.

[Trial court]: And then they let you out of jail?

[Jennifer]: Yes.

[Trial court]: You made bail?

[Jennifer]: Yes.

[Trial court]: And you were suppose[d] to go to court some
time in 2007 before this shooting occurred?

[Jennifer]: Yes.

[Trial court]: And you didn’t go?

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[Jennifer]: No.

[Trial court]: You get shot?

[Jennifer]: Yes.

[Trial court]: Did you go to the hospital?

[Jennifer]: Yes.

[Trial court]: You come home from the hospital?

[Jennifer]: Yes.

[Trial court]: Did the homicide detectives come pick you up
for your interview?

[Jennifer]: I was in protective custody.

[Trial court]: You were in protective custody.

[Jennifer]: Yes.

N.T., 4/27/10, at 112-15. Jennifer also stated: “You just got to bear with me

because I take medication. You just got to bear with me because I’m not on

my medication right now. So you have to bear with me. I am on a lot of

medication because of this incident.” Id. at 84. After Jennifer stated she was

in “protective custody,” the trial court blamed the “mess” of her examination

on Appellant’s trial counsel. Id. at 115.

Trial counsel then requested a sidebar, and the Commonwealth

explained at that time and the next day before trial recommenced that Jennifer

was in witness relocation16 due to threats made by co-defendant Martinez’s

brother. N.T. 4/27/10, at 117-18; N.T., 4/28/10, at 8-10. The trial court,

____________________________________________

16 Jennifer stated she was in “protective custody,” but the Commonwealth
clarified she was only “relocated.” N.T. Trial (Jury) Vol. 2, 4/28/10, at 6.

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Appellant’s counsel, and co-defendant’s counsel were unaware that Jennifer

was in witness relocation prior to her testimony. N.T. 4/27/10, at 117-18;

N.T. 4/28/10, at 17, 20. Counsel for Appellant and co-defendant Martinez

made an oral motion for mistrial based on, inter alia, Jennifer’s testimony.

N.T., 4/28/10, at 17, 20-22. Trial counsel also argued that the trial court’s

admonition before the jury that the “mess” was her fault destroyed counsel’s

credibility and thus would deprive Appellant of a fair trial. The trial court

denied both requests for mistrial, stating “[t]here is nothing to support the

fact that this jury cannot be given the appropriate cautionary instructions with

respect to how to address what occurred yesterday afternoon.” Id. at 23.

Rather, the trial court precluded any evidence regarding threats made against

Jennifer, agreed to instruct the jury that the confusion was not the fault of

Appellant’s counsel, determined that all counsel would stipulate to the dates

surrounding Jennifer’s bench warrant, and decided to attribute Jennifer’s

witness relocation to “an unrelated case.” Id. at 24, 25, 28-30.

After speaking with the Commonwealth, Appellant’s counsel, and co-

defendant’s counsel extensively, see N.T., 4/28/10, at 24-33, the trial court

offered the following curative instruction to the jury:

Ladies and gentlemen, thank you for agreeing to come in late
today. You know I had other cases to work on. To say it
complicated my day is an understatement but that’s okay. I want
to start[,] in addition to thanking you for coming in, to ask for
your forgiveness. I was irritated yesterday when I last saw you.
. . . I work very hard at having things go smoothly and things did
not go smoothly yesterday afternoon[,] and I was not pleased
about that. And I did something that was wrong and that I should

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not have done. I told [Appellant’s counsel that] she created this
mess, to quote me. She didn’t. Nothing that occurred yesterday
afternoon was [her] fault.

There are times, and I would well imagine where you see
them in your own life, where the universe kind of comes together
and it’s like, boom. It was in no way her fault. It was wrong of
me to say it. So I apologize to her publicly for saying that. She’s
a really good lawyer. She works very hard. So part of what has
made us late today is my trying to figure out this because that’s
my job; to make sure the record is clean and that you understand
exactly what has occurred.

And what I have been able to determine is that on November
4[,] 2006 Jennifer . . .was arrested. She was arrested for crimes
related to the possession and sale of drugs. On June 1[,] 2007, a
bench warrant was issued because she failed to show up in court.
Clearly that had nothing to do with this case because the date that
is relevant to us is June 21[,] 2007. That’s the day that the
citizens in question lost their life. [Jennifer] Patrick was injured on
that day. She was released from Temple Hospital on June 30[,]
2007. She stayed with various family and friends between June
30th and September 15[,] 2007. She gave her statement to
Homicide on September 15[,] 2007. On September 19[,] 2007,
she testified at the preliminary hearing. One year later completely
unrelated to this case as best I can tell, her bench warrant was
lifted on September 18[,] 2008.

Now, [Jennifer] used a term that we don’t actually use
yesterday. She said she was in protective custody. She also told
us at some point during her testimony that she takes medication
but she did not take her medicine yesterday. When she used that
term “protective custody,” she was referring to what we call
witness relocation. [Jennifer] was placed in witness relocation
from February 12[,] 2008, until April 14[,] 2008 in a case
completely unrelated to this proceeding.

It is my conclusion — and you’re not required to draw any
conclusion that I have reached. My conclusions have no bearing
on you. But it is my conclusion that yesterday was a long day.
She didn’t take her meds. We were asking all these questions
about dates and times. I think she got confused. These are the
facts. The inferences you draw from these facts and how you use
this information is solely for you to decide. But these are the facts
for you to use as you deem appropriate.

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N.T., 4/28/10, at 41-44 (paragraph breaks added). Trial counsel did not

object to the curative instruction.

Here, Appellant avers the trial court’s instruction “undermined the

entirety of trial counsel’s examination by expressing [its] opinion on the

evidence” and as such, trial counsel should have objected. Appellant’s Brief

at 23. Appellant maintains that the trial court’s instruction was “impermissible

error” and warranted a new trial. Id. at 25. He insists that trial counsel’s

strategy was to impeach Jennifer “with every possible fact available to them”

and failing to object undermined this tactic. Id. Specifically, Appellant argues

the instruction did the following:

(1) informed the jury to disregard Jennifer[‘s] motive for
testifying; and, (2) undermined trial counsel’s cross-examination,
which attempted to paint Jennifer . . . as a cooperating witness
who was willing to implicate others in criminal actions as . . . an
attempt to receive a lesser sentence for her own crimes. [The
trial court] unilaterally gave . . . imprimatur to Jennifer[‘s]
testimony, which was central to securing . . . Appellant’s
conviction.

Id.

The PCRA court concluded Appellant’s argument, that the curative

instruction told the jury to disregard evidence and improperly bolstered

Jennifer’s testimony, was without merit. PCRA Ct. Op. at 14. Instead, it

stated its instruction did the following: (1) attempted to explain Jennifer’s

confusion surrounding the timing of events by reminding them she did not

take her medication and was involved in another criminal matter for which she

failed to appear; and (2) reminded the jury that it was free to utilize the

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information in any way they deemed appropriate and emphasized the court’s

conclusions had “no bearing” on their decision. Id. at 15; N.T. 4/28/10, at

24. We agree.

Based on the record before us, we conclude that the trial court’s curative

instruction did not improperly bolster Jennifer’s testimony. The trial court did

not comment on the truthfulness or credibility of the witness. See Ramos,

231 A.3d at 959; Sanchez, 82 A.3d at 981. Further, it only relied on

statements in the record, Jennifer’s testimony about her medication and

stipulations by counsel as to the timeline, in charging the jury. Contrary to

Appellant’s allegations, the trial court did not offer inappropriate personal

opinion regarding the credibility of the witness, but provided important context

and clarification regarding the timeline of events while also reminding the

jurors several times they are not required to come to the same conclusion as

the court. See N.T., 5/4/10, at 31-32, 99-100, 101-105, 111-114, 118-121.

Moreover, we note that Appellant benefitted from Jennifer’s testimony

and the trial court’s actions afterward. The curative instruction indirectly

touched upon Jennifer’s credibility, or lack thereof, painting the witness as

confused, attributed the confusion to her not taking her medication before

testifying, and as being involved in multiple criminal matters. The instruction

also precluded evidence potentially damaging to Appellant and co-defendant’s

defense from ever reaching the jury — specifically the fact that certain

statements from co-defendant’s family caused Jennifer to enter a relocation

program. Because of the above factors, we conclude Appellant’s argument is

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meritless, so his ineffectiveness claim must fail. See Charleston, 94 A.3d at

1020.

Since both of Appellant’s claims are unavailing, no purpose would be

served by an evidentiary hearing. Id. Accordingly, no relief is due, and we

affirm the PCRA court’s order dismissing Appellant’s petition. See Johnson,

139 A.3d at 1273; Wah, 42 A.3d at 338.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/20/2023

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