MEMORANDUM
MURRAY, J.
Marlin
Kelly (Appellant) appeals from the order denying, after an
evidentiary hearing, his first petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546. Upon review of the record and applicable law, we
incorporate the PCRA court's comprehensive opinion and
affirm.[1]
Appellant
is serving a mandatory life sentence for second-degree
murder, second-degree murder of an unborn child, and
conspiracy.[2] This Court affirmed Appellant's
sentence on direct appeal, and the Pennsylvania Supreme Court
denied allowance of appeal.[3] We summarized the underlying
facts as follows:
Around August 2012, [Appellant] became involved in a
heroindealing operation with three other men: Stephen Murray
("Murray"), Murray's brother, Herbert Murray
("Herbert"), and Tyrone Fuller
("Fuller"). In early October 2012, a disagreement
among the four divided the group into two enterprises:
[Appellant] with Fuller, and Murray with Herbert. On October
21, 2012, Murray stole approximately six bricks of heroin
that had belonged to [Appellant]. After Fuller discovered
that Murray had taken the heroin, and was selling it to
Fuller and [Appellant's] usual customers, [Appellant] and
Fuller formed a plan to retrieve the heroin by robbing Murray
at gunpoint.
[Appellant] and Fuller enlisted the help of James Leo
("Leo"), a heroin addict who frequently provided
transportation for Fuller in exchange for heroin. Fuller and
[Appellant] asked Leo to buy heroin from Murray, so that
Fuller and [Appellant] could determine where [Murray] lived.
In exchange, Fuller and [Appellant] would provide the buy
money and Leo could keep the heroin that he purchased.
Leo agreed to the arrangement and on October 28, 2012, drove
[Appellant] and Fuller to Murray's apartment building.
Leo called Murray and arranged to buy the heroin. [Appellant]
and Fuller, both armed with handguns, ascended the exterior
stairs of the apartment building, and hid in a shadowy area
in the stairwell, waiting to ambush whoever met with Leo.
While [Appellant] and Fuller were waiting, someone approached
their position, causing them to retreat to another floor.
[Appellant] stopped outside of the front door to Murray's
apartment. At that moment, Murray's girlfriend, Conekia
Finney ("Finney"), opened the door, startling
[Appellant], and causing him to point his gun into the
doorway and pull the trigger. Finney was seven months
pregnant with her daughter, Sekiah. After realizing he had
shot someone, [Appellant] fled the scene with Fuller
following close behind, unaware of what had happened. Both
Finney and Sekiah died as a result of the gunshot wound.
Several days later, [Appellant] and Fuller were apprehended.
[Appellant] was charged with criminal homicide, criminal
homicide of an unborn child, robbery, and conspiracy to
commit robbery.
Commonwealth v. Kelly, 192 A.3d 256 (Pa. Super. May
17, 2018) (unpublished memorandum at *1), appeal
denied, 197 A.3d 224 (Pa. Nov. 15, 2018).
On
August 5, 2019, Appellant filed a pro se PCRA
petition raising more than 10 claims. The PCRA
court[4] appointed counsel, who filed an amended
petition which included Appellant's pro se
issues, along with three additional issues. Thereafter, the
case "experienced some delays due to the COVID-19
pandemic." PCRA Court Opinion, 12/20/21, at 6 (footnote
omitted). With the PCRA court's permission,
Appellant's first appointed counsel withdrew his
appearance. The PCRA court appointed current counsel, who
filed a second amended petition raising more issues. The PCRA
court observed that "[e]ach
of [Appellant's] eighteen claims assert that his trial
counsel was ineffective." Id. at 8.
The
PCRA court held an evidentiary hearing on September 27, 2021.
Appellant testified and presented testimony from trial
counsel, Stephen Colafella, Esquire. The Commonwealth did not
present any witnesses. Relevant to this appeal, Appellant
testified as follows:
PCRA COUNSEL. And to your recollection, do you recall
discussing the trial strategy in both trial one and trial
two?
A. Yes.
Q. To your recollection, did it change?
A. It was about the same.
PCRA COUNSEL: Thank you, [Appellant].
THE COURT: Cross-examination.
COMMONWEALTH: Thank you.
Q. Good morning, [Appellant].
A. Good morning.
Q. [Appellant], you had said when [PCRA counsel] asked you
about Colafella questioning did you go running to the
DA's Office, you said it threw you for a loop, I think
those were your words?
A. Yeah.
Q. Why did it throw you for a loop? What do you mean by that?
A. Because like that's not something we discussed. Like
we had went over a few, you know, a few questions before, but
that's, that's not one of the questions we had, you
know what I mean, had discussed.
Q. Did it, it threw you for a loop because you knew that
that's generally not something you're allowed to
bring up in a trial?
A. I mean, no. I mean I'm not an attorney, but my thing
is, ... if we discussed something, you know what I mean,
going one way and then something else is thrown in there,
that's not part of what we discussed. It kind of like,
you know what I'm saying, it kind of threw me for a loop.
...
Q. You had, basically, and I'm paraphrasing, you had no
knowledge that a question like that would be inadmissible?
A. Yeah, correct.
Q. But you also said it threw you for loop because that
wasn't one of your rehearsed questions, is that what
you're saying?
A. Yes. Plus he, he told me before that ... like basically,
yeah, it was just something we hadn't discussed before.
Q. But you knew the whole, the whole point of this trial was
Tyrone Fuller was a snitch, Tyrone Fuller got a deal, Tyrone
Fuller was lying, right?
A. Yes.
Q. And that you weren't, right?A. Correct.
Q. You weren't, you stood your ground, right?
A. Correct.
Q. And you, you heard [your trial counsel, Mr.] Colafella say
that in his opening, that you were standing your ground,
right?
A. Correct.
Q. And you agree with it, right?
A. Correct.
Q. Because that's what you were trying to portray, right,
that you were standing your ground, you weren't lying?
A. Yeah, I wasn't lying, correct.
Q. And your story, and I'm paraphrasing, but your, your
defense was going to be, even though Leo dropped you guys off
in the area of Smoke Murray's house, that Tyrone Fuller
went to Smoke's house, you went elsewhere, right, that
was your whole strategy?
A. Correct.
Q. And Tyrone Fuller comes on board later with the
Commonwealth and says both of you were at Smoke Murray's
house, and that is a lie, that was what your understanding of
what the strategy was, is that fair to say?
A. Correct.
Q. And you were confident in Mr. Colafella's abilities -
A. Correct.
Q. -- is that right? Obviously, you were convicted the first
time, but he filed an appeal on your behalf, right?
A. Yes.
Q. And he was successful in that appeal, right?
A. Yes.
Q. And you felt comfortable with the amount of times that he
met you. You had testified in the first trial, right?
A. Yes.
Q. He had gone over that with you before, right?
A. Yes.
Q. And you felt comfortable testifying a second time because
the rapport that you had with Mr. Colafella because of the
abilities that you knew Mr. Colafella had, right?
Q. And when Mr. Colafella says to the jury, and you heard
this, you were present for the opening, right, that you were
standing your ground, you thought, okay, this sounds good,
this is in line with what the strategy is, right?
A. More or less, yes.
N.T., 9/27/21, at 105-09 (emphasis added).
At the
conclusion of the hearing, the PCRA court stated:
At this particular point, both side's counsel ha[ve]
taken a look at the record. This is an extensive case. A case
that has had, we'll just say, had a lot of time and a lot
of effort by both the Commonwealth and the defense in this
case. We've waited for this PCRA petition. Obviously,
we've allowed amendments on two different occasions.
We've had testimony.
I think, at this particular point, do[] both counsel agree
that they would like to submit briefs based upon a transcript
record to the [PCRA c]ourt on the legal issues before it so
that that would be an aid in the [c]ourt deciding this
Postconviction Collateral Relief Petition?
N.T., 9/27/21, at 114. The parties expressed their desire to
file briefs, and Appellant's counsel stated he would
order the transcript from the PCRA hearing. Id. at
115. The PCRA court stated that Appellant's brief would
be due within 30 days of Appellant receiving the PCRA hearing
transcript, and the Commonwealth's brief would be due
within 30 days of receiving Appellant's brief.
Id. at 116.
On
December 20, 2021, the PCRA court entered an order and
opinion denying relief. Appellant timely appealed. The PCRA
court did not order Appellant to file a Pa.R.A.P. 1925(b)
concise statement. The court stated it
had "explained its reasons for denying each and every
one of [Appellant's] PCRA claims in its December 20, 2021
opinion, which is attached and incorporated by
reference." Pa.R.A.P. 1925(a) Opinion, 1/13/22.
On
appeal, Appellant claims:
I. The PCRA Court erred in denying relief where [Appellant]
established trial counsel's ineffective assistance for
pursuing an unreasonable trial strategy that implicated
[Appellant's] right to remain silent; for failing to
confer with [Appellant] regarding a line of questioning that
would infringe [upon] his Fifth Amendment Rights;
...
