Com. v. Harding, J.

J-S09040-26

                                   2026 PA Super 80


  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  JASON HARDING                                :
                                               :
                       Appellant               :   No. 627 EDA 2025
                                               :

           Appeal from the PCRA Order Entered February 7, 2025
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0001709-2020


BEFORE: MURRAY, J., LANE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                             FILED APRIL 22, 2026

       Appellant, Jason Harding, appeals pro se from the February 7, 2025,

order entered in the Court of Common Pleas of Philadelphia County dismissing

his first petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9545, without an evidentiary hearing. After our careful

review, we affirm.

       The relevant facts and procedural history have been set forth previously,

in part, by this Court as follows:

              On December 21, 2018, [Appellant] and four other
       individuals, [including Appellant’s younger brother and three
       friends], were filming a “rap video” near 2100 Middleton Street in
       Philadelphia. N.T., Jury Trial, 9/1/21, at 70. At approximately
       10:00 p.m., the victim, Bernell Gibson, inquired as to what the
       group was doing on the street and requested that they leave. Id.
       When [Appellant] first saw the victim approaching the group,
____________________________________________


* Former Justice specially assigned to the Superior Court.
J-S09040-26


     [Appellant] saw a light and thought the victim was holding a
     firearm. In response, [Appellant] removed his firearm from his
     pocket. Upon realizing the light [Appellant] saw was the victim’s
     phone, [Appellant] placed his firearm under his shirt. Id. at 76-
     77; see Exhibit D-1.
            [Appellant] testified that the victim’s tone was “aggressive,”
     id. at 70, and that the victim was “calling for somebody.” Id. at
     71. [Appellant] “[saw the victim’s] right hand [go] down[] his
     body [and go] sideways [] and it looked like he went to reach for
     something, that’s when I started shooting.” Id. [Appellant]
     testified, “When I shot [the victim], I thought he was going to try
     to reach for a gun and start shooting at me….The first couple of
     shots [were] warnings shots. And then the second time I started
     shooting, it was [] out of fear.” Id. at 72. [Appellant] was
     “probably seven feet” away from the victim during the incident,
     id.at 75, and fired a semi-automatic firearm nine times.
     [Detective James Poulos testified that nine .40 caliber shell
     casings were found at the scene, and the casings were consistent
     with the firing of a semi-automatic weapon. N.T., Jury Trial,
     8/31/21, at 92, 110.] Detective Thorston Lucke testified [a]
     surveillance video,[ which the jury viewed], shows “[the victim]
     turn and kind of run away as he’s being shot.” Id. at 42. The
     parties stipulated that the victim died due to a gunshot wound to
     his torso. Id. at 117-18.
           On September 7, 2019, [after Appellant was arrested at the
     scene of an unrelated robbery], [Appellant] was arrested and
     charged with murder [in connection with the death of the victim],
     a violation of the Uniform Firearms Act, and possessing an
     instrument of a crime. A preliminary hearing was held on
     February 30, 2021, during which [Appellant] pled not guilty to all
     charges.    [Represented by Gary Server, Esquire, and Scott
     Gessner, Esquire, (collectively, “trial counsel”) Appellant]
     proceeded to a jury trial on August 30, 2021, after which he was
     found guilty on third-degree murder, carrying a firearm without a
     license, and carrying a firearm in a public place in Philadelphia.
     Sentencing was deferred pending a pre-sentence investigation
     (PSI) report and a mental health evaluation.
           On November 19, 2021, the trial court sentenced
     [Appellant] to an aggregate term of 22½ to 45 years’ incarceration
     followed by 5 years of probation. [Appellant] filed a timely post-
     sentence motion, which was denied. [He then filed a timely,
     counseled direct appeal.]


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Commonwealth v. Harding, No. 883 EDA 2022, at * 1-3 (Pa.Super. filed

2/6/23) (unpublished memorandum) (footnotes omitted).

       On direct appeal, Appellant presented challenges to the weight of the

evidence, the sufficiency of the evidence, and the discretionary aspects of his

sentence.     Finding no merit to his claims, a panel of this Court affirmed

Appellant’s judgment of sentence on February 6, 2023. See id. Appellant

filed a petition for allowance of appeal, which our Supreme Court denied on

July 5, 2023.

       On or about October 18, 2023, Appellant filed a timely, pro se PCRA

petition, and the PCRA court appointed Walter C. Chisholm, Esquire, to

represent Appellant. On December 28, 2024, Attorney Chisholm filed a

Turner/Finley1        “no-merit”     letter    and   a   petition   to   withdraw   his

representation. On December 30, 2024, the PCRA court gave notice of its

intent to dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.

Appellant did not file a response.

       The PCRA court granted PCRA counsel’s petition to withdraw and

formally dismissed Appellant’s PCRA petition. Appellant filed a timely, pro se

notice of appeal. On February 26, 2025, the PCRA court directed Appellant to

file a Pa.R.A.P. 1925(b) statement, and Appellant timely complied. The PCRA

____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),                                  and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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court filed a responsive Rule 1925(a) opinion on March 24, 2025. Appellant

filed a motion to supplement his Rule 1925(b) statement to raise issues of

PCRA counsel’s ineffectiveness, and on March 27, 2025, the PCRA court

granted Appellant’s request to file a supplemental Rule 1925(b) statement.

On April 6, 2025, Appellant filed a supplemental Rule 1925(b) statement

raising claims of PCRA counsel’s ineffectiveness.

      On March 27, 2025, Appellant filed a pro se “Application to Compel” in

this Court. Therein, Appellant averred that, despite his repeated requests,

trial counsel failed to provide Appellant with his case file, including trial

transcripts. Further, on April 2, 2025, Appellant filed a pro se “Application for

Relief” in this Court seeking permission to file a supplemental Pa.R.A.P.

1925(b) statement nunc pro tunc. By order entered on April 11, 2025, this

Court directed the PCRA court to ensure that Appellant received all transcripts

and other relevant documents. Moreover, by order entered on April 14, 2025,

this Court denied Appellant’s request to supplement his Rule 1925(b)

statement; however, we noted Appellant could file a request to supplement

his statement with the PCRA court.

      On April 15, 2025, Appellant filed a pro se “Application for Remand” in

this Court. Therein, Appellant indicated he planned to raise issues of PCRA

counsel’s ineffectiveness on appeal, and, consequently, he requested a

remand to the PCRA court for the appointment of new counsel and/or an

evidentiary hearing on his claims of PCRA counsel’s ineffectiveness. By order


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J-S09040-26


entered on May 2, 2025, this Court denied Appellant’s “Application for

Remand” and informed Appellant he could file a request for the appointment

of new counsel with the PCRA court.

     On May 25, 2025, Appellant simultaneously filed a pro se request to

further supplement his Rule 1925(b) statement nunc pro tunc, as well as a

supplemental Rule 1925(b) statement, in the PCRA court. On June 5, 2025,

the PCRA court appointed new counsel, Stephen O’Hanlon, Esquire, to

represent Appellant on appeal, and on July 25, 2025, Attorney O’Hanlon filed

a supplemental Rule 1925(b) statement on behalf of Appellant. On August 8,

2025, the PCRA court filed a supplemental Rule 1925(a) opinion.

     On August 22, 2025, Appellant filed a pro se “Application for Relief” in

this Court seeking the removal of Attorney O’Hanlon. Specifically, Appellant

averred that, although he asked this Court to appoint him new counsel, he

never asked the PCRA court to appoint him new counsel. Consequently, he

sought the dismissal of new counsel (Attorney O’Hanlon) so that he could file

a pro se appellate brief. On October 2, 2025, this Court granted Appellant’s

request for the removal of Attorney O’Hanlon.

     On appeal, Appellant presents the following issues in his “Statement of

the Questions Presented” (verbatim):

     1. PCRA counsel and PCRA appeal counsel were ineffective for
        failing to raise direct appeal counsel’s ineffectiveness for failing
        to raise on direct appeal that the trial court erred by failing to
        grant a mistrial. Where the trial court excused two jurors
        leaving only eleven jurors to legitimately serve on the juror,
        [Appellant’s] refusal to proceed to trial with only eleven jurors,

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J-S09040-26


         trial counsel informed the trial court to declare a mistrial, and
         the trial was actually aborted when the jurors were excused,
         but instead the trial court continued the trial to return the two
         excused jurors after they had been discharged from the panel.
      2. PCRA counsel and PCRA appeal counsel were ineffective for
         failing to raise trial counsel’s ineffectiveness for failing to object
         to the trial court continuing [Appellant’s] trial, right in the
         middle, to return two discharged jurors.
      3. The trial court erred in denying [Appellant’s] motion to
         suppress [Appellant’s] inculpatory statement regarding flight
         because [Appellant] gave a statement without Miranda
         warnings, and direct appeal and PCRA counsel were ineffective
         for failing to raise this issue leading to [Appellant] suffering
         prejudice because the jury was informed of consciousness of
         guilt and other crimes. N.T., 8/31/21, at 16, 19, 22, 26.
      4. PCRA counsel and PCRA appeal counsel were ineffective for
         failing to raise trial counsel’s ineffectiveness for failing to call
         Ashaun Harding to discredit the testimony of Shakeyma
         Hunlay, who testified that Ashaun was in the video of the
         shooting and identified [Appellant] as the shooter in the video
         by their beards, stance, and dress, in lieu of advising
         [Appellant] to take the stand to incriminate himself by
         testifying that he was the shooter.
      5. PCRA counsel and PCRA appeal counsel were ineffective for
         failing to raise the cumulative effect of errors at [Appellant’s]
         trial, that so undermined the verdict as to constitute a denial
         of his constitutional right to due process, effective counsel, and
         a fair trial.

Appellant’s Pro Se Brief at 1-2.

      Initially, we note that, when reviewing the dismissal of a PCRA petition,

we examine “whether the PCRA court’s conclusions are supported by the

record and free from legal error.” Commonwealth v. Johnson, 289 A.3d

959, 979 (Pa. 2023) (citation omitted).

      The PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record. This Court grants
      great deference to the findings of the PCRA court, and we will not

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      disturb those findings merely because the record could support a
      contrary holding. In contrast, we review the PCRA court’s legal
      conclusions de novo.

Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa.Super. 2020) (en banc)

(citations omitted). A PCRA petitioner “has the burden of persuading [an

appellate c]ourt that the PCRA court erred and that such error requires relief.”

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

      Moreover, we note that, in Pennsylvania, counsel is presumed to have

rendered effective assistance. Commonwealth v. Orlando, 156 A.3d 1274,

1281 (Pa.Super. 2017). To overcome this presumption, a petitioner must

plead and prove by a preponderance of the evidence that: (1) the underlying

claim has arguable merit; (2) counsel had no reasonable strategic basis for

his or her action or inaction; and (3) the petitioner suffered prejudice because

of counsel’s action or inaction. Id. Our Supreme Court has explained that:

            A chosen strategy will not be found to have lacked a
      reasonable basis unless it is proven that an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued.
            Prejudice in the context of ineffective assistance of counsel
      means demonstrating that there is a reasonable probability, but
      for counsel’s error, the outcome of the proceedings would have
      been different.

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (citations omitted).

If a petitioner fails to satisfy any one of the three prongs, the claim fails.

Orlando, 156 A.3d at 1281. “Counsel will not be found ineffective for failing

to raise a meritless claim.” Commonwealth v. Brown, 196 A.3d 130, 151

(Pa. 2018).

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J-S09040-26


       In the case sub judice, in each of his claims, Appellant presents

challenges to the effectiveness of his PCRA counsel. In Commonwealth v.

Bradley, 261 A.3d 381, 401 (Pa. 2021), our Supreme Court held “that a PCRA

petitioner may, after a PCRA court denies relief, and after obtaining new

counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the

first opportunity to do so, even if on appeal.” Bradley, supra, 261 A.3d at

401.2 Accordingly, the question then is whether we must remand to the PCRA

court for further proceedings or whether “the record before the appellate court

[is] sufficient to allow for disposition of [the] newly-raised ineffectiveness

claims.” Id. at 402. As discussed infra, we conclude the record is sufficient

to allow for disposition of the ineffectiveness claims.



____________________________________________


2 We recognize that this Court clarified after Bradley that, when a petitioner

represents himself on appeal after his counsel’s withdrawal pursuant to
Turner/Finley, the pro se petitioner must raise any PCRA counsel
ineffectiveness claims in his court-ordered Rule 1925(b) statement or waive
any such claims. See Commonwealth v. Snyder, 316 A.3d 178, 182
(Pa.Super. 2024).(holding that pro se petitioner failed to preserve PCRA
counsel ineffectiveness claims when he did not include them in his court-
ordered concise statement, “which would have been his first opportunity to
raise his claims of PCRA counsel’s ineffectiveness”). In the case sub judice,
after the PCRA court granted Attorney Chisholm’s application to withdraw
pursuant to Turner/Finley, Appellant raised claims of Attorney Chisholm’s
ineffectiveness in his initial and supplemental pro se Rule 1925(b) statements.
Moreover, to the extent Appellant challenges the effectiveness of Attorney
O’Hanlon, who was appointed to assist Appellant on appeal and filed a
counseled Rule 1925(b) statement, we note Appellant was permitted to raise
claims related to his ineffectiveness on appeal for the first time. See Bradley,
supra. In sum, in light of Bradley, and its progeny, we conclude Appellant
has not waived his claims of ineffective assistance of PCRA counsel or PCRA
appellate counsel.

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J-S09040-26


       To obtain relief on a layered claim of ineffectiveness,

       [an] appellant must plead and prove that: (1) trial counsel [and/or
       direct appeal counsel] was ineffective for a certain action or failure
       to act; and (2) [PCRA] counsel was ineffective for failing to raise
       [prior] counsel’s ineffectiveness. As to each relevant layer of
       representation, appellant must meet all three prongs of the
       Pierce[3] test for ineffectiveness. A failure to satisfy any of the
       three prongs of the Pierce test requires rejection of a claim of
       ineffective assistance of trial counsel [and/or direct appeal
       counsel], which, in turn, requires rejection of a layered claim of
       ineffective assistance of [PCRA] counsel.

Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011).

       Appellant’s    first   and   second     ineffectiveness   claims   are   related.

Specifically, in his first issue, Appellant contends that, when Juror No. 6 and

Juror No. 8 became unavailable on September 7, 2021, thus reducing the

number of jurors to eleven, the trial court should have granted trial counsel’s

request for a mistrial. Appellant’s Brief at 19. Appellant contends that Juror

No. 6 and Juror No. 8 were “formally discharged” from jury service, thus

requiring a mistrial on September 7, 2021. Appellant notes the trial court

asked Appellant if he would proceed with eleven jurors on September 7, 2021,

and Appellant refused to do so. Id. at 17. Appellant contends trial counsel

“requested a mistrial” on September 7, 2021, and the trial court erred in

denying the request. Id. Accordingly, Appellant alleges direct appeal counsel

was ineffective in failing to raise the issue of the trial court’s error, and both



____________________________________________


3 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).




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PCRA counsel were ineffective in failing to raise the issue of direct appeal

counsel’s ineffectiveness.

      Moreover, in his second issue, Appellant notes that, instead of declaring

a mistrial on September 7, 2021, the trial court continued the trial until

September 16, 2021, at which time a full complement of twelve jurors was

available. Appellant contends that trial counsel should have objected to the

delay and requested a mistrial on September 16, 2021, and all subsequent

counsel were ineffective in failing to raise the issue of trial counsel’s

ineffectiveness.

      Pennsylvania Rule of Criminal Procedure 641 provides:

      In all cases, at any time after a jury of twelve is initially sworn and
      before verdict, the defendant and the attorney for the
      Commonwealth, with approval of the judge, may agree to a jury
      of fewer than twelve but not fewer than six. Such agreement shall
      be made a part of the record. The verdict in such a case shall have
      the same force and effect as a verdict by a jury of twelve.

Pa.R.Crim.P. 641.

      As Rule 641 provides, the defendant “may agree to a jury of fewer than

twelve;” however, he is not required to do so and may exercise his

constitutional right to a verdict rendered by the 12-person jury.         See id.;

Const. Article 1, § 6. Further, this Court has held that “after the dismissal of

a juror over objection, if the defendant and his counsel still believe the juror

was improperly discharged, the defendant may refuse to proceed with less

than twelve and thereby require the court to formally declare the mistrial.”

Commonwealth v. Stewart, 448 A.2d 598, 599 (Pa.Super. 1982).

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      Relevantly, in addressing Appellant’s issues, the PCRA court indicated

as follows:

             This trial began on August 30, 2021, and the jury heard
      testimony on August 31st and September 1st. However, the
      Philadelphia courts were unexpectedly closed for the remainder of
      the week due to a storm, and previously scheduled to be closed
      on Monday, September 6th for Labor Day. On September 7th, the
      court reconvened, and the court had previously excused one juror
      (Juror No. 6) to go on a previously scheduled vacation to Cancun,
      [thus leaving twelve jurors in place]. [However, on September
      7th,] another juror (Juror No. 8) [reported to the trial court judge
      that she] had been exposed to COVID[.] [The trial court advised
      her] to stay home until her COVID test results were available. The
      court and counsel went on record to discuss how they would like
      to proceed, and it was ultimately decided to attempt to resolve
      the scheduled conflicts that had arisen. Court staff determined
      that the jurors were all available to come back for the remainder
      of the trial on September 16th, and scheduled the trial to resume
      on that date, with the [trial] judge coming in during his scheduled
      vacation to finish this trial.
                                    ***
              What occurred on September 7, 2021, is as follows:
                    THE COURT: We’re on the record. We’re waiting
              for the defendant to come up. In the meantime,
              Thursday and Friday the city closed the court
              buildings. On Thursday, I talked to Juror No. 6, and
              he had a paid vacation to Cancun beginning last
              Saturday. I excused him. This morning, we had a
              phone call from Juror No. 8, who told me that she was
              in contact with a person who tested positive for COVID
              on Saturday, and I asked her to stay home.
                     With that, I’m going to bring up the defendant
              so you can talk to the defendant to see if he wishes to
              proceed with less than 12 jurors. Commonwealth,
              that’s also your decision as well.
                    [ADA]: Yes, Your Honor.
                    [TRIAL COUNSEL]: Yes, sir.
                    THE COURT: Thank you.
                    (A brief recess was taken at this time.)

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                THE COURT: We’re back on the record. The first
          day I have available to try a week is June 6th of next
          year. I got June 6th, July 5th, July 18th, and July 25th.
                [TRIAL COUNSEL]: So, it is your intention to call
          a mistrial now? Wouldn’t you want to see if the lady
          tests positive?
                  THE COURT: You’re going to make me come
          back?
               [TRIAL COUNSEL]: Oh, right. It’s your vacation.
          Then you can declare a mistrial.
                THE COURT: See if he objects. If he objects, I’ll
          have to come back.
                 [TRIAL COUNSEL]: He does want his 12. We’ll
          talk to him.
               THE COURT: You can talk. I’ll step outside. Do
          you want time to talk to him for a minute?
                  [TRIAL COUNSEL]: Yes, just a minute.
               THE COURT: All right. We’re back on the record.
          Counsel, as I’ve told you, we’re down to 11 jurors.
          Defense, what’s your position?
                [TRIAL COUNSEL]: Yes, Your Honor. I’ve
          conferred with [Appellant] about that and the
          prospect of going with 11 jurors, and [Appellant]
          agrees that he wants to have his full complement of
          12 jurors.
                  THE COURT: Commonwealth.
                 [ADA]: Your Honor, I understand that one of the
          jurors was exposed to COVID over the weekend. Just
          for purposes of—we would ask that—instead of having
          a mistrial and going through this again, putting the
          family through this again, Your Honor, who is here in
          the court, I would ask that we be able to wait for the
          test results. But, I know it’s up to Your Honor.
                  THE COURT: Let me see counsel for a second.
          (Discussion held at sidebar off the record.)
                THE COURT: We’re back on the record. The
          court officers talked with all the jurors, except No. 8,
          and September 16th, they are all available. As it

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           stands now, we will come back on the 16th, and I will
           charge the jury and they will go deliberate. I will be
           in touch with Juror No. 8 personally. I will find out if
           they’re getting tested tomorrow, when the test results
           are back. And I will report by email to all parties as
           to what we find out.
                 [TRIAL COUNSEL]: Thank you, Your Honor.
                 [ADA]: Thank you, Your Honor.
                 THE COURT: We’re adjourned.
     (N.T., 9/7/21, pp. 3-6).
           On September 16th, the court resumed, and the following
     took place:
                 THE COURT: All right. We’re back on the record
           out of the presence of the jury. I want to put some
           things on the record. The Thursday and Friday after
           the storm, the courts were closed. We were here the
           Tuesday after that. And Juror No. 8, I believe, was not
           here because she was exposed to somebody with
           COVID.
                 In the meantime, I sent the following to [Juror
           No. 6]: Dear [Juror No. 6], I hope you’re enjoying
           your vacation. This is [the trial] judge in 507. I hate
           to intrude on your time in Cancun, but I thought I
           would advise you [of] the status of the trial where you
           were a juror. We are now reconvening on September
           16th at 9:00 a.m. in Courtroom 507. I am hoping that
           is convenient for you. I also have to ask you, if you
           discussed this case with anyone, that’s not a problem,
           as I told you to go to Mexico. It would, however,
           disqualify you from serving on the 16th. Please advise
           at your convenience. I gave him my cell phone
           number. Again, I apologize for interrupting your time
           off.
                 His response was: Hey, Good afternoon, Judge.
           Yes, that will be perfect, September 16th.
                  Also, I had conversations with Ms. Juror No. 8
           on Friday. It said—[Juror No. 8] texted me: Hi, Judge.
           This is [Juror No. 8] sending you an update on my
           COVID status. My lab appointment was pushed back
           to this evening, so I’ll notify you when the results are


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J-S09040-26


           available, two to five days. However, I did take the
           self-test kit earlier this weekend, and it tested
           negative. I’ll keep you posted.
                 Thank you. We’re reconvening on the 16th.
                Then yesterday, last evening, I sent her: [Juror
           No. 8], how are you? Will you be able to be in court
           tomorrow morning?
                 Her answer was: Yes. My lab results came back
           today, and it was negative.
                 I said: Glad to hear that.
                 That’s where we stand with the [2] jurors.
                  [TRIAL COUNSEL]: So, it sounds like we have a
           full 13 to work with today; is that correct?
                 THE COURT: Yes.
                  [TRIAL COUNSEL]: Your Honor, my request
           today is that, given the fact that it’s been two weeks
           that we were adjourned, I know the temptations are
           out there, and I also know jurors are presumed to
           have followed your directions, but in an abundance of
           caution my request is that we bring out each juror
           individually and voir dire them about whether or not
           they followed your admonishment not to discuss the
           case with anyone.
                 [ADA]: I have no objection.
                  THE COURT: We’ll proceed to do that….After
           this, supposedly, we should be charging the jury and
           proceeding from there.
     (N.T., 9/16/21, pp. 3-5.)
           Each juror was questioned if they had abided by the court’s
     instruction not to discuss the case with anyone, and all advised
     they had not discussed the case with anyone. The jury was then
     charged in the appropriate law. (N.T., 9/16/21, pp. 5-14).
                                 ***
            Here, a mistrial was clearly not warranted, as after some
     unforeseen delays, all parties worked to resolve the resulting
     scheduling conflicts. Additionally, the jurors were all questioned
     when the trial resumed to ensure that [Appellant’s] rights to a fair
     trial were preserved. [All jurors were present during all phases of

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      the trial.]…[Appellant] has not offered a scintilla of alleged
      prejudice he suffered as a result of the continuance, and,
      accordingly, he is not entitled to any relief on this claim.

PCRA Court Opinion, filed 8/8/25, at 10-14.

      We agree with the PCRA court that Appellant is not entitled to relief on

his claim. Initially, contrary to Appellant’s assertion, the trial court did not

permanently formally discharge Juror No. 6 and Juror. No. 8.                See

Commonwealth v. Briggs, 12 A.3d 291, 333 (Pa. 2011) (holding a juror is

discharged when they are disqualified from serving on the jury). Regarding

Juror No. 6, the trial court permitted him to take his vacation and then had

him report when the trial reconvened.         Regarding Juror No. 8, she was

instructed to get a COVID test and return to jury service if she tested negative

for COVID. Notably, after she tested negative for COVID, she returned to the

jury. Still, Appellant had the constitutional right to not move forward with his

trial on September 7, 2021, with less than twelve jurors.

      As Appellant suggests, the record reveals Appellant exercised his right

to twelve jurors, and, thus, on September 7, 2021, trial counsel informed the

trial court that Appellant would not proceed with less than twelve jurors.

However, contrary to Appellant’s assertion, trial counsel did not request a

mistrial at this time. In fact, the record reveals that, when the trial court

initially announced that it was going to declare a mistrial since Appellant would

not proceed with less than twelve jurors, trial counsel asked, “Wouldn’t you

want to see if [Juror No. 8] tests positive?” N.T., 9/7/21, at 4. When the trial


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J-S09040-26


judge reminded trial counsel that the trial judge had a vacation planned, trial

counsel indicated, “[T]hen, you can declare a mistrial.” Id. However, the trial

court then indicated that, if Appellant objected to less than twelve jurors, the

trial judge would come back early from vacation so that a mistrial would not

be needed. Id. Trial counsel agreed to the trial judge returning early from

vacation. Id. Thus, on September 7, 2021, the trial court did not proceed

against Appellant’s wishes with less than twelve jurors; but rather, the trial

court continued the trial until September 16, 2021, at which time a full jury

was available.

      Accordingly, Appellant is factually mistaken in asserting that trial

counsel requested a mistrial on September 7, 2021. That is, trial counsel did

not preserve the issue of whether the trial court erred in failing to grant a

mistrial on September 7, 2021. See Commonwealth v. McAndrews, 430

A.2d 1165 (Pa. 1981) (holding a defendant who fails to make a timely request

for a mistrial waives a claim that the trial court should have declared a

mistrial). Consequently, direct appeal counsel cannot be ineffective for failing

to raise an unpreserved claim on appeal, and Appellant’s layered claim of

ineffectiveness fails. Brown, supra, 196 A.3d at 151(“Counsel will not be

found ineffective for failing to raise a meritless claim.”).

      In any event, as Appellant argues, there was then a nine-day delay until

the jury reconvened with a full complement of jurors on September 16, 2021,

without trial counsel lodging an objection. Appellant contends trial counsel


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was ineffective in failing to object to the delay, and all subsequent counsel

were ineffective in failing to challenge trial counsel’s omission. We agree with

the PCRA court that Appellant has failed to demonstrate he was prejudiced by

trial counsel’s omission. That is, he has failed to demonstrate that “there is a

reasonable probability, but for counsel’s error, the outcome of the proceedings

would have been different.” Cox, supra, 983 A.2d at 678.

      In arguing he was prejudiced, Appellant summarily claims that, had the

issue been raised properly at each stage, there is a reasonable probability the

appellate Court would have found the trial court erred. It is well-settled that

boilerplate allegations and bald assertions of ensuing prejudice cannot satisfy

a defendant’s burden to prove that counsel was ineffective. See Chmiel,

supra. Simply put, Appellant has not demonstrated how the nine-day delay

prejudiced him such that the outcome of his proceedings would have been

different. Cox, supra.

      The record reveals the trial court honored Appellant’s request to proceed

to verdict with a 12-person jury, and out of an abundance of caution, when

the trial reconvened nine-days later, the trial court individually asked each

juror in open court the following question: “During the time we’re off, were

you able to abide by my instruction not to discuss the case with anybody?”

N.T., 9/16/21, at 5-14. Each juror answered, “Yes.” Id. Thus, since Appellant

has not demonstrated he was prejudiced by trial counsel’s failure to request a

mistrial due to the delay, Appellant’s claim of ineffective assistance of trial


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J-S09040-26


counsel fails, and, accordingly, his layered claims of ineffectiveness fail, as

well.

         In his third issue, Appellant alleges direct appeal counsel was ineffective

in failing to challenge the trial court’s denial of his motion to suppress

statements he made to the police, and all subsequent counsel were ineffective

in failing to raise the issue of direct appeal counsel’s ineffectiveness. In this

vein, Appellant claims he made inculpatory statements while he was subject

to custodial interrogation without receiving his Miranda4 warnings, and, thus,

the trial court erred in denying his suppression motion.

         Specifically, he avers his statement to the police that “he's been on the

run and [the police] are lucky that [they] got him that day or [they] probably

weren't going to get him because he’s been out of state[,]” should have been

suppressed under Miranda. See Appellant’s Brief at 27. He notes he was

prejudiced by the admission of the statement because the trial court charged

the jury with a consciousness of guilt instruction due to his flight or

concealment. See id. at 28. For the reasons discussed infra, we find there is

no arguable merit to the underlying claim, and consequently, neither direct

appeal counsel nor subsequent counsel may be deemed ineffective on this

basis.




____________________________________________


4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


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J-S09040-26


      In reviewing the denial of a suppression motion, our standard of review

“is limited to determining whether the suppression court’s factual findings are

supported by the record and whether the legal conclusions drawn from those

facts are correct.” Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).

While we defer to the court’s factual determinations when supported by the

record, “we are not bound by the suppression court’s legal rulings, which we

review de novo.” Briggs, supra, 12 A.3d at 320-21. Our scope of review is

limited   to   “the   evidence   presented    at   the   suppression   hearing.”

Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa.Super. 2019).                   We

“consider only the Commonwealth’s evidence and so much of the defense’s

evidence as remains uncontradicted when read in the context of the

suppression hearing record as a whole.” Commonwealth v. Turpin, 216

A.3d 1055, 1060 (Pa. 2019) (citation and internal quotation marks omitted).

      Our Supreme Court has held that Miranda rights are only required prior

to a custodial interrogation. Commonwealth v. Housman, 986 A.2d 822,

839 (Pa. 2009). In In re V.H., 788 A.2d 976 (Pa.Super. 2001), a custodial

interrogation and the need for Miranda warnings were explained in the

following fashion:

             It is well-settled that the police are only required to advise
      a person of his Miranda rights if that person is subjected to
      custodial interrogation. The test for determining whether a
      suspect is being subjected to custodial interrogation so as to
      necessitate Miranda warnings is whether he is physically deprived
      of his freedom in any significant way or is placed in a situation in
      which he reasonably believes that his freedom of action or
      movement is restricted by such interrogation.

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J-S09040-26



Id. at 980.

      “Custodial interrogation is questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way.” Commonwealth v. Gonzalez,

979 A.2d 879, 887 (Pa.Super. 2009). In that regard, not every statement

made by an individual during a police encounter constitutes an interrogation.

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008) (en banc).

Additionally, volunteered or spontaneous utterances by an individual are

admissible without the administration of Miranda warnings. Id.        “When a

defendant gives a statement without police interrogation, we consider the

statement to be ‘volunteered’ and not subject to suppression. Interrogation is

police conduct ‘calculated to, expected to, or likely to evoke admission.’”

Commonwealth v. Schwing, 964 A.2d 8, 12 (Pa.Super. 2008).

      In the case sub judice, trial counsel sought the suppression of

Appellant’s statement on the basis he was subject to custodial interrogation

by the police without being provided with his Miranda warnings. Accordingly,

on August 31, 2021, the trial court held a suppression hearing at which Officer

Shawn Bossert testified.    Specifically, Officer Bossert testified he and his

partner were working on September 8, 2019, from 4:00 p.m. to 12:00 a.m.

N.T., 8/31/21, at 12. They were in uniform and traveling in a police vehicle.

Id.




                                    - 20 -
J-S09040-26


      During their tour, Officer Bossert heard on the police radio that a

“robbery was in progress [at 2*5] West Duncannon.” Id. He then heard on

the radio that the police were pursuing the robber’s getaway vehicle, and the

chase was headed in the direction where Officer Bossert and his partner were

located. Id. at 13. Officer Bossert activated the police cruiser’s lights and

sirens, and he then heard on the police radio that the getaway vehicle had

crashed with a pedestrian vehicle. Id. The police radio broadcasted that a

“black male bailed from the [getaway] vehicle and was running southbound

towards the 4000 block of Nice Street.” Id.

      Officer Bossert and his partner drove directly to the location, which

consisted of row homes with backyards. Id.         Officer Bossert, along with

several other responding police officers, went to the rear of the row homes,

and Officer Bossert saw a “black male stick his head up out of some heavy

brush area in a yard.” Id. at 14. The officers approached the male with the

aim of detaining him, and the male punched Officer Bossert in the face. Id.

After a brief struggle, the male, later identified as Appellant, was detained and

placed in the back of a police vehicle. Id. at 14-15.

      Officer Bossert testified that, after Appellant was placed in the police

vehicle: “[M]y partner was in the middle of asking [Appellant] what his name

was, [and] he made a statement that he’s been on the run and we’re lucky

that we got him that day or we probably weren’t going to get him because

he’s been out of state.”   Id. at 16.   Officer Bossert clarified that, prior to


                                     - 21 -
J-S09040-26


Appellant making the statement about “being on the run,” the only question

asked of him by the police was his name.        Id. at 16-17.   Officer Bossert

testified that, after Appellant gave his name, his partner ran him through the

system, which resulted in a positive hit for an active warrant for homicide.

Id. at 14.

      On cross-examination, Officer Bossert confirmed that, after Appellant

punched him, he did not say anything to Appellant or question him. Id. at

18. Rather, Appellant was handcuffed and led directly to the police cruiser, at

which time Officer Bossert’s partner sat in the front seat of the police cruiser

and asked Appellant his name. Id. at 19. Officer Bossert reiterated that, prior

to Appellant making his statement about “being on the run,” the only question

the police asked Appellant was his name. Id. at 20. Officer Bossert confirmed

Appellant was not given his Miranda warnings prior to Officer Bossert’s

partner asking Appellant his name. Id. at 22.

      In addressing Appellant’s suppression issue, the court reasoned that,

based on the testimony of Officer Bossert, the sole witness at the suppression

hearing, Appellant was in police custody when he made his inculpatory

statement. PCRA Court Opinion, filed 8/8/25, at 5. However, the court further

reasoned that Appellant “was not being interrogated by the officer when he

announced to the officers [that he had been on the run].” Id. Rather, the

court held “the record established that [Appellant] voluntarily gave this

statement without any coercion or conduct by the police officers to elicit the


                                     - 22 -
J-S09040-26


statement,” and since “Miranda does not preclude the admission of

spontaneous utterances,” the court properly denied the suppression motion.

Id. (quotation marks and quotation omitted). We agree with the court’s sound

reasoning.

      Simply put, this Court has held that “not every statement made by an

individual   during   a   police   encounter   constitutes   an   interrogation.”

Commonwealth v. Garvin, 50 A.3d 694, 698 (Pa.Super. 2012) (citation

omitted). “When a defendant gives a statement without police interrogation,

we consider the statement to be ‘volunteered’ and not subject to

suppression....Interrogation is police conduct ‘calculated to, expected to, or

likely to evoke admission.’” Id. (citations omitted).

      Moreover, a statement made in a custodial setting will not be

suppressed where the suspect spontaneously “blurts out” the statement, or

makes an incriminating statement in the course of “small talk” with

authorities, or is merely responding to biographical questioning. See

Commonwealth v. Page, 59 A.3d 1118 (Pa.Super. 2013). “Generally

speaking, general information such as name, height, weight, residence,

occupation, etc. is not the kind of information which requires Miranda

warnings since it is not information generally considered as part of an

interrogation.” Garvin, 50 A.3d at 698 (quotation marks and quotation

omitted).




                                      - 23 -
J-S09040-26


      Accordingly, in the case sub judice, we conclude the police officer’s

question seeking to elicit Appellant’s name was not an “interrogation,” and,

thus, the court properly determined that Appellant’s statement in response to

the question, i.e., that he “had been on the run,” was a spontaneous

utterance. Accordingly, since the police were seeking biographical information

when Appellant “blurted out” his statement, there was no requirement that

Appellant be advised of his Miranda warnings. See Page, supra.

      Consequently, there is no arguable merit to Appellant’s underlying

suppression claim. Thus, Appellant’s claim of ineffective assistance of direct

appeal counsel fails, and, accordingly, his layered claims of ineffectiveness

fail, as well. See Brown, supra, 196 A.3d at 151 (“Counsel will not be found

ineffective for failing to raise a meritless claim.”).

      In his fourth issue, Appellant claims trial counsel was ineffective in

failing to call Ashaun Harding to discredit the identification testimony of

Shakeyma Hunlay. Ms. Hunlay testified she was watching the local news on

television when a video of the instant shooting was played. N.T., 8/31/21, at

128-30. She testified that she recognized two of her brothers in the video;

namely, Ashaun Harding and Appellant. Id. at 132. She identified Appellant

as the man shooting a gun in the video. Id. Ms. Hunlay confirmed she gave

a pre-trial statement to the police identifying her brothers in the video. Id.

at 133.




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J-S09040-26


       Appellant claims that, had trial counsel called Ashaun, he would have

testified that neither he nor Appellant were in the video, thus discrediting Ms.

Hunlay’s testimony. Accordingly, Appellant claims trial counsel was ineffective

in failing to call Ashaun to testify, and all subsequent counsel were ineffective

in failing to raise the issue of trial counsel’s ineffectiveness.

       Relevantly, our Supreme Court has held as follows:

       When raising a claim of ineffectiveness for the failure to call a
       potential witness, a petitioner satisfies the performance and
       prejudice requirements of the Strickland[5] test by establishing
       that: (1) the witness existed; (2) the witness was available to
       testify for the defense; (3) counsel knew of, or should have known
       of, the existence of the witness; (4) the witness was willing to
       testify for the defense; and (5) the absence of the testimony of
       the witness was so prejudicial as to have denied the defendant a
       fair trial. To demonstrate Strickland prejudice, a petitioner “must
       show how the uncalled witnesses’ testimony would have been
       beneficial under the circumstances of the case.” Commonwealth
       v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008). Thus, counsel will
       not be found ineffective for failing to call a witness unless the
       petitioner can show that the witness’s testimony would have been
       helpful to the defense.

Commonwealth v. Sneed, 45 A.3d 1096, 1108–09 (Pa. 2012) (citations

omitted) (footnote added).

       Here, we conclude Appellant has failed to demonstrate how the absence

of Ashaun’s testimony was so prejudicial as to have denied him a fair trial.

See id. At trial, Appellant testified in his own defense. Specifically, Appellant

admitted he was the shooter, but he asserted a claim of self-defense. N.T.,


____________________________________________


5 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).

                                          - 25 -
J-S09040-26


9/1/21, at 69-74. That is, he claimed he shot the victim because he believed

the victim had a gun and was going to shoot him and his friends. Id. at 73.

         As indicated, Appellant now claims that trial counsel should have called

Ashaun to testify that neither he nor Appellant were in the video or otherwise

at the scene, thus discrediting Ms. Hunlay’s testimony identifying Appellant in

the video as the shooter.        However, given Appellant’s testimony and self-

defense strategy, Appellant has failed to demonstrate how Ashaun’s testimony

would have been beneficial under the circumstances. See Commonwealth

v. Chmiel, 889 A.2d 501, 546 (Pa. 2005).            That is, Ashaun’s proposed

testimony would have been inconsistent with Appellant’s asserted defense at

trial.   See id (“Trial counsel's failure to call a particular witness does not

constitute ineffective assistance without some showing that the absent

witness’ testimony would have been beneficial or helpful in establishing the

asserted defense.”).

         Accordingly, Appellant has failed to demonstrate trial counsel was

ineffective in failing to call Ashaun to testify, and consequently, Appellant’s

layered claims of ineffectiveness fail, as well.6 Chmiel, supra, 30 A.3d at

1128.

____________________________________________


6 Moreover, we note that, after the Commonwealth rested, the trial court
conducted a colloquy of Appellant outside of the jury’s presence. During this
colloquy, the trial court specifically asked Appellant the following question:
“Are there other witnesses you have wished to present?” N.T., 9/1/21, at 64.
Appellant specifically answered, “No.” Id. Further, the trial court asked
(Footnote Continued Next Page)


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J-S09040-26


        Moreover, we note Appellant contends trial counsel was ineffective “for

calling him to testify because he incriminated himself.” Appellant’s Brief at

12. He claims counsel’s advice that he should testify was so unreasonable as

to vitiate a knowing and intelligent decision to testify on his own behalf. He

further contends all subsequent counsel were ineffective for failing to raise the

issue of trial counsel’s ineffectiveness.

        Our Supreme Court has observed that “[t]he right of an accused to

testify on his own behalf is a fundamental tenet of American jurisprudence

and is explicitly guaranteed by Article I, Section 9 of the Pennsylvania

Constitution.” Commonwealth v. Nieves, 746 A.2d 1102, 1105 (Pa. 2000).

Thus,

              The decision of whether or not to testify on one’s own
              behalf is ultimately to be made by the defendant after
              full consultation with counsel. In order to sustain a
              claim that counsel was ineffective for failing to advise
              the appellant of his rights in this regard, the appellant
              must demonstrate either that counsel interfered with
              his right to testify, or that counsel gave specific advice
              so unreasonable as to vitiate a knowing and intelligent
              decision to testify on his own behalf.

Nieves, supra, 746 A.2d at 1104 (citations omitted).




____________________________________________


Appellant: “And you’re satisfied the attorneys have done the investigations
necessary for this, correct?” Id. Appellant answered, “Yes.” Id. Appellant
is bound by his statements, which he made in open court while under oath.
See Commonwealth v. Pier, 182 A.3d 476, 480 (Pa.Super. 2018) (holding
a defendant is bound by his statements made in open court while under oath).

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J-S09040-26


     Here, prior to Appellant testifying, the trial court conducted the following

colloquy:

           THE COURT: [Appellant], I got some of the same questions
     as yesterday. How are you?
            [APPELLANT]: Good.
            THE COURT: You know you’re here for your trial?
            [APPELLANT]: Yes.
          THE COURT: And the Commonwealth has rested. Do you
     understand that?
            [APPELLANT]: Yes.
           THE COURT: Are you under the influence of drugs or
     alcohol?
            [APPELLANT]: No.
           THE COURT: Now is the determination of whether or not you
     wish—two things, whether or not you wish to take the stand in
     your own defense and whether or not you have any other
     witnesses you wish to present.
           Now, the first thing is whether or not you want to take the
     stand in your own defense.          You have a right under both
     Constitutions, Pennsylvania and United States, to take the stand
     in your own defense if you want to do so. You also have a right
     not to take the stand in your own defense if you wish to do so. If
     you do not testify, I will instruct the jury, if you want, that they
     cannot take any adverse inference because you failed to testify.
            Do you understand those principles?
            [APPELLANT]: Yes.
          THE COURT: Have you had a chance to talk to your attorney
     about this?
            [APPELLANT]: Yes.
          THE COURT: And you’re satisfied with their representation
     up until this point?
            [APPELLANT]: Yes.
           THE COURT: All right. The determination on whether or not
     you take the stand, you should listen to what your attorneys have
     to say, because they’re both very experienced and good lawyers.


                                    - 28 -
J-S09040-26


      But the decision is not theirs. The decision is yours and yours
      alone.
            Do you understand that?
            [APPELLANT]: Yes.
            THE COURT: Have you had enough time to talk with your
      attorneys concerning whether or not you wish to take the stand in
      your own defense?
            [APPELLANT]: Yes.
            THE COURT: Have you made a decision?
            [APPELLANT]: Yes, I did.
            THE COURT: What’s that decision?
            [APPELLANT]: I want to testify.
            THE COURT: You’re going to testify?
            [APPELLANT]: Yes.

N.T., 9/1/21, at 61-64.

      As is evident, the trial court conducted a thorough oral colloquy with

Appellant regarding his right to testify, and Appellant acknowledged that the

right to testify or not to testify was his decision alone. See id. Based on the

record, Appellant’s decision to testify was knowing, voluntary, and intelligent.

Accordingly, Appellant is not entitled to relief on his claim of ineffective

assistance of trial counsel. See Commonwealth v. Lawson, 762 A.2d 753

(Pa.Super. 2000) (holding that a defendant who makes a knowing, voluntary,

intelligent decision regarding his right to testify may not later claim ineffective

assistance of counsel for his own decision).        Thus, his layered claims of

ineffective assistance of subsequent counsel fail, as well.




                                      - 29 -
J-S09040-26


       In his final issue, Appellant claims that cumulative errors denied him

due process. Our Supreme Court has held that “[w]here a claimant has failed

to prove prejudice as the result of any individual errors, he cannot prevail on

a cumulative effect claim unless he demonstrates how the particular

cumulation requires a different analysis.” Commonwealth v. Hutchinson,

25 A.3d 277, 318–19 (Pa. 2011) (citations omitted). See Commonwealth v.

Small, 980 A.2d 549, 579 (Pa. 2009) (concluding that a broad and vague

claim of the prejudicial effect of cumulative errors did not entitle the appellant

to relief).

       Although cumulative prejudice from individual claims may be properly

assessed in the aggregate when the individual claims have failed due to lack

of prejudice, nothing in our precedent relieves an appellant who claims

cumulative prejudice from setting forth a specific, reasoned, and legally and

factually supported argument for the claim. See Commonwealth v.

Johnson, 966 A.2d 523, 532 (Pa. 2009) (citation omitted). Here, Appellant

presents a bald averment of cumulative prejudice, and, thus, he is not entitled

to relief. See Hutchinson, supra.

       For all of the foregoing reasons, we conclude Appellant is not entitled to

relief. Thus, we affirm.

       Order affirmed.




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Date: 4/22/2026




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