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Commonwealth v. Fletcher

December 28, 2009


Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0360011-1992, dated April 26, 2007.

The opinion of the court was delivered by: Madame Justice Greenspan


SUBMITTED: May 6, 2009


This is a collateral capital appeal from an order dismissing Appellant Anthony Fletcher's petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.*fn1

Factual and Procedural History

Appellant's convictions arose out of the shooting death of Vaughn Christopher on March 2, 1992, at approximately 1:00 a.m., in the 2000 block of South 60th Street in Philadelphia.*fn2 Appellant shot Christopher because Christopher failed to pay for drugs Appellant had given him. The shooting was witnessed by several persons including Natalie Grant, Angelic Kirkman, and Ronald "Skeet" Williams. In summary, the witnesses testified that Appellant approached Christopher and asked him for the money Christopher owed him.*fn3 Without giving Christopher an opportunity to respond, Appellant reached into his coat, pulled out a silver.380 caliber semi-automatic handgun, and then fired one shot at Christopher's feet. Christopher immediately began walking away from Appellant. When Christopher was about seven feet from Appellant, Appellant fired two more shots at him. One of the bullets hit Christopher in his thigh and the other hit him in his right flank. The bullet that struck Christopher in his flank caused damage to his right kidney, liver, and chest wall. Christopher stumbled away and collapsed against a parked car. He asked Williams to help him but Williams declined.

Christopher managed to rise to his feet and walk several steps but then fell to the ground and lapsed into unconsciousness. Police arrived soon thereafter and transported Christopher to a nearby hospital where he died a day and a half later.

Following the shooting, Appellant returned to his home and changed his clothes. He then returned to the scene of the shooting and remarked to Grant and Williams that, "You all better tell that boy he better not tell who shot him." Almost a week later Appellant approached Grant and warned her not to speak to the police. Afraid for her own safety and that of her family, Grant promised Appellant that she would not speak to the police about the shooting.

Police arrested Appellant on March 10, 1992, and charged him with, inter alia, murder, generally, and possessing an instrument of crime (PIC). Appellant then agreed to speak to police. After receiving Miranda*fn4 warnings, Appellant told the police that he approached Christopher and punched him in the head because Christopher and another man had robbed him during a dice game. Appellant further remarked that Christopher pulled out a gun, which prompted him to grab for Christopher's weapon. Appellant stated that he was able to gain control of Christopher's weapon and fired it twice at Christopher's legs.

On January 29, 1993, a jury convicted Appellant of first-degree murder (18 Pa.C.S. § 2502(a)) and PIC (18 Pa.C.S. § 907). Following the recording of the verdict and a penalty hearing, the jury found that the aggravating circumstances outweighed the mitigating circumstances and fixed the penalty at death.*fn5 See 42 Pa.C.S. § 9711(c)(iv) (the verdict must be a sentence of death if the jury unanimously finds one or more aggravating circumstances outweigh any mitigating circumstances).

Following the penalty hearing, trial counsel filed post-verdict motions pursuant to former Rule of Criminal Procedure 1123.*fn6 Appellant thereafter requested new counsel and Willis W. Berry, Jr., Esquire, was appointed to represent Appellant.*fn7 Appellant, who had filed numerous pro se motions seeking relief from his convictions, petitioned to have Mr. Berry removed as counsel and to proceed pro se. The trial court conducted an extensive colloquy and granted Appellant the right to represent himself. N.T. 4/4/95, 20-31; Commonwealth v. Fletcher, 896 A.2d 508, 512-13 (Pa. 2006) (Fletcher II) (setting forth excerpts from the colloquy). Mr. Berry was then appointed to be standby counsel.

Mr. Berry and Appellant filed several supplemental post-verdict motions and the trial court held hearings at which Appellant represented himself and standby counsel acted in a supplemental capacity. The trial court eventually denied Appellant's motions. On February 21, 1996, Appellant, represented by new counsel, John Cotter, Esquire, was formally sentenced to death. Appellant, still represented by Mr. Cotter, filed a direct appeal in this Court. On March 24, 2000, this Court affirmed the judgment of sentence. Commonwealth v. Fletcher, 750 A.2d 261 (Pa. 1999) (Fletcher I).*fn8 Appellant requested reargument but that request was denied on May 15, 2000. Appellant then filed a petition for a writ of certiorari in the United States Supreme Court which was also denied. Fletcher v. Pennsylvania, 531 U.S. 1035 (2000) (per curiam).

Appellant filed a timely pro se PCRA Petition. Almost one year later Appellant filed a 245-page Amended Petition raising twenty primary issues, each of which was comprised of several sub-issues. The matter was assigned to the Honorable John Milton Younge for disposition. Judge Younge dismissed most of Appellant's claims but granted Appellant an evidentiary hearing on the following five claims:

1. Trial counsel was ineffective when he failed to present compelling exculpatory testimony from Dr. Hydow Park, the pathologist who performed the decedent's autopsy and also failed to expose a critical error by the testifying pathologist, Dr. [Ian] Hood;

2. The police in this case lost or withheld critical physical evidence regarding the decedent's clothing, and trial counsel was ineffective for failing to investigate and raise this issue of deficient police work at trial;

3. Trial counsel was ineffective for failing to investigate, develop, and present significant mitigating evidence, including mental health evidence;

4. Trial counsel was ineffective for failing to object where the jury found that the aggravating circumstance of "grave risk of death" to a person other than the victim existed based upon improperly admitted evidence, unconstitutionally broad jury instructions and improper argument by the prosecution; and

5. Trial counsel was ineffective for failing to object to the trial court's instruction regarding the possibility of parole. PCRA Court's Opinion, 6/9/04 at 2.

Following an evidentiary hearing, Judge Younge granted Appellant a new trial on Appellant's first claim above but denied relief on the remaining issues. Judge Younge also denied relief on the remainder of the claims set forth in Appellant's Amended Petition.*fn9 The Commonwealth appealed to this Court and on April 21, 2006, this Court reversed Judge Younge's order granting a new trial.*fn10 This Court held that Appellant had waived review of the claim on which the PCRA court granted relief because it had not been raised in any of the post-verdict motions filed prior to sentencing. Fletcher II, 896 A.2d at 521.*fn11 This Court also ruled that even if the claim had not been waived, no relief was due because Appellant failed to establish prejudice.*fn12 Fletcher II, 896 A.2d at 522-523. This Court remanded the matter so that the PCRA court could address any unresolved matters. Fletcher II, 896 A.2d at 523.

On remand, Judge Younge held, based on the decision in Fletcher II and his review of the record, that nineteen of Appellant's claims had either been waived or previously litigated. PCRA Court's Opinion, 1/29/08, 5-6.*fn13 Judge Younge also determined that he had no legal authority to rule on Appellant's claim that this Court failed, on direct appeal, to conduct an appropriate proportionality review of the death sentence imposed on Appellant. PCRA Court's Opinion, 1/29/08, 6. The instant appeal followed.


The PCRA provides relief to individuals who prove they were convicted of crimes they did not commit and those receiving illegal sentences. 42 Pa.C.S. § 9542. "A petitioner is eligible for PCRA relief only when he proves by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances delineated in 42 Pa.C.S. § 9543(a)(2)." Commonwealth v. Natividad, 938 A.2d 310, 320 (Pa. 2007). One of these circumstances is ineffective assistance of counsel. 42 Pa.C.S § 9542(a)(2)(ii) (the PCRA provides relief to those individuals whose convictions or sentences "resulted from. ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place"). To obtain relief under this provision, a defendant must plead and prove that: (1) the claim underlying the ineffectiveness claim has arguable merit; (2) counsel's actions lacked any reasonable basis; and (3) counsel's actions resulted in prejudice to petitioner. Commonwealth v. Rodney Collins, 957 A.2d 237 (Pa. 2008); Commonwealth v. Charles Pierce, 527 A.2d 973 (Pa. 1987).*fn14 "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.'" Commonwealth v. Rasheed Williams, 899 A.2d 1060, 1064 (Pa. 2006) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)). "Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different." Commonwealth v. Michael Pierce, 786 A.2d 203, 213 (Pa. 2001); Strickland v. Washington, 466 U.S. 668, 694 (1984). Counsel is presumed to have been effective and the burden of rebutting that presumption rests with the petitioner. Commonwealth v. Basemore, 744 A.2d 717, 728 n.10 (Pa. 2000).

A defendant is not entitled to PCRA relief on claims that have been previously litigated or waived.*fn15 42 Pa.C.S. § 9544. Here, Appellant's direct appeal was filed before this Court issued its opinion in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which held that review of claims alleging ineffective assistance of counsel should generally be deferred until the post-conviction stage of proceedings. Appellant was represented by new counsel on direct appeal and was thus required to raise claims of trial counsel ineffectiveness under the pre-Grant framework. Therefore, on this collateral attack, Appellant is limited to claims of ineffective assistance of appellate counsel; claims respecting trial counsel are relevant only insofar as they prove a claim of appellate counsel ineffectiveness. Respecting such "layered" claims, Appellant must prove Strickland/Pierce ineffectiveness as to both trial and appeal counsel, in order to prove the cognizable claim of appellate counsel ineffectiveness.*fn16

The concept of "layering" ineffectiveness claims and the requirements that must be met to obtain relief on a "layered" claim of ineffectiveness were recently discussed by this Court in Commonwealth v. Daniels, 963 A.2d 409 (Pa. 2009):

In Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003), this Court clarified the procedure to be followed in forwarding a PCRA claim challenging the effectiveness of all prior counsel, including prior direct appeal counsel, i.e., a "layered" claim of ineffectiveness. PCRA layering is necessary when the petitioner was represented by new counsel on direct appeal because claims bottomed upon trial counsel ineffectiveness--in particular, record-based claims--could have been raised on direct appeal. In such circumstances, any claim that a petitioner would forward sounding in trial counsel ineffectiveness would be waived under 42 Pa.C.S. § 9544(b). McGill explicitly stated that "in order for a petitioner to properly raise and prevail on a layered ineffectiveness claim, sufficient to warrant relief if meritorious, he must plead, present, and prove" the ineffectiveness of direct appeal counsel, which necessarily related back to the actions of prior counsel. McGill, 832 A.2d at 1022 (emphasis in original). To "prove" that a layered claim of appellate counsel's ineffectiveness has arguable merit, the petitioner must develop and prove all three prongs of the Pierce test as to the ineffectiveness of trial counsel. Id.

Daniels, 963 A.2d at 419-20 (footnote omitted) (emphasis in original). In other words, in order to be eligible for relief on his claims of ineffectiveness, Appellant must establish that:

1) trial counsel was ineffective using the three-part test set forth above; and 2) all subsequent counsel were ineffective under the identical test for failing to argue that all prior counsel had been ineffective for not raising the claim at issue. Rodney Collins, 957 A.2d at 244; McGill, 832 A.2d at 1023.

Because Appellant was granted the right to proceed pro se during the post-verdict phase of the proceedings, he cannot successfully "layer" any claims alleging trial counsel's ineffectiveness that he did not raise in a post-verdict motion because review of such "layered" claims necessarily requires an assessment of whether Appellant himself was ineffective for not including the claims in a post-verdict motion. The law prohibits a defendant who chooses to represent himself from alleging his own ineffectiveness. Faretta v. California, 422 U.S. 806, 834 n.46 (1975); Fletcher II, 896 A2d at 518; Commonwealth v. Bryant, 855 A.2d 726, 736-37 (Pa. 2004). The fact that standby counsel was appointed to assist Appellant does not alter this conclusion. Fletcher II, 896 A.2d at 518. Thus, Appellant cannot succeed on any claim raised herein alleging either trial error or predicated on the ineffective assistance of trial counsel that Appellant, acting pro se, did not preserve in a post-verdict motion. Appellant's inability to raise his own ineffectiveness precludes him from presenting a properly layered ineffectiveness claim, except insofar as he preserved a claim of trial counsel ineffectiveness on post-verdict motions, only to have appellate counsel default it on appeal.

Our standard of review in an appeal from the denial of PCRA relief is "whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Gwynn, 943 A.2d 940, 944 (Pa. 2008) (citing Commonwealth v. Abu-Jamal, 833 A.2d 719, 723 (Pa. 2003)). "The level of deference accorded to the post-conviction court may vary depending upon whether the decision involved matters of credibility or matters of applying the governing law to the facts as so determined." Commonwealth v. Kenneth Williams, 950 A.2d 294, 299 (Pa. 2008). We review the following issues.


Appellant first argues that the PCRA court erred in relying on Fletcher II to hold that several of his claims had been waived or previously litigated because Appellant represented himself during the post-verdict stage of the proceedings and failed to preserve many of the issues he now presents for review by not including them in a post-verdict motion. This issue is relevant to the resolution of some of Appellant's claims because, in order to prove that appellate counsel was ineffective for failing to raise a defaulted trial level claim, Appellant must establish that either he himself was ineffective or that standby counsel was ineffective for not properly preserving several of the issues he now raises on appeal. The law is clear that a defendant cannot allege his own ineffectiveness or that of standby counsel. See Faretta, 422 U.S. at 834 n.46; Bryant, supra. Thus, any claim not raised in a post-verdict motion cannot serve as the basis for relief because relief is dependent on Appellant's establishing his own ineffectiveness for not raising the claim, which the law precludes him from doing.

Appellant claims that the PCRA court erred in finding waiver because it "mechanically applied this Court's holding that Mr. Fletcher had waived all ineffectiveness claims by briefly representing himself during a post-verdict hearing--a holding that erred on the law and misconstrued the facts." Appellant's Brief, 8. In the absence of new or additional evidence, or any legal support, Appellant essentially requests that we revisit this Court's holding in Fletcher II. We decline this invitation and conclude that Appellant is not entitled to relief on any claim that was not raised in a post-verdict motion and thus cannot be properly "layered" as required.

In the alternative, Appellant offers a host of additional reasons why the rule should not apply to his case. Appellant asserts that he did not actually represent himself during post-verdict motions and when he attempted to do so the trial court rebuffed him. Appellant contends that the record supports his position by showing that standby counsel acted during the post-verdict stage as if he were Appellant's counsel and that the trial court violated his constitutionally guaranteed right to represent himself by limiting him in his attempt to present various claims and arguments pro se. Appellant's Brief, 8-12.*fn17

Appellant also argues that he could not have relinquished any ineffectiveness claims because at the time he waived his right to counsel, the "relaxed waiver" doctrine applied and this Court excused the failure to adequately preserve claims for appellate review in capital cases.*fn18 Appellant's Brief, 11 n.3. Appellant further claims that under "relaxed waiver" it would have been reasonable for him to believe that his own ineffectiveness would be excused on appeal. Appellant's Brief, 11 n.3.

Appellant further argues that he was incompetent to waive his right to counsel and that even if he was competent, the waiver colloquy was defective. Appellant bases his claim of incompetence on "known mental difficulties and incomprehension of the law," and on the failure of the trial court to advise him of the elements of the crimes with which he was charged and their possible sentences. Appellant's Brief, 12.

Appellant's claim that the waiver colloquy was inadequate is premised on an assertion that the trial court failed to: 1) ascertain during the colloquy whether Appellant was sufficiently competent to understand the rights he was waiving by representing himself; 2) advise him of the elements of the crimes and possible sentences with which he was charged; and 3) discover why he decided to represent himself. Appellant's Brief, 13-15.

Next, Appellant contends that the rule prohibiting a defendant who voluntarily has decided to forego his right to counsel from later alleging his own ineffectiveness is violative of due process because: (1) it effectively punishes the defendant for exercising a right guaranteed him by the Sixth Amendment; (2) it is likely to lead to an unjust result; and (3) when combined with Pennsylvania's layering doctrine, it cuts off potentially meritorious claims of counsel's ineffectiveness. Appellant's Brief, 15. Appellant explains that it is simply unfair and unjust to prohibit a defendant from raising ineffectiveness claims because of a decision to forego counsel, a constitutionally guaranteed right, where there exist numerous claims of ineffectiveness having presumptive merit.

Finally, Appellant contends that the rule proscribing a defendant from alleging that standby counsel was ineffective deprives a defendant of due process at least with respect to those duties assigned to standby counsel. Appellant's Brief, 17. Appellant also claims that the application of the rule is especially harsh when, as here, standby counsel acts as Appellant's attorney and not as standby counsel.

The Commonwealth argues that we should summarily reject the many arguments Appellant presents in support of his request that we revisit the decision that Appellant waived claims he failed to raise while acting pro se. The Commonwealth first argues that, under the law in effect when Appellant was convicted, any claim not raised in a post-verdict motion was waived. See Commonwealth v. Green, 709 A.2d 382, 383 n.4 (Pa. 1998) (indicating that defendants convicted prior to January 1, 1994 waived for purposes of appellate review any issue not included in a post-verdict motion).*fn19 In addition, the Commonwealth argues that a defendant who has opted to represent himself and has waived claims of ineffectiveness by failing to timely raise them cannot surmount that waiver by presenting "layered" claims of ineffectiveness. See Commonwealth v. Tilley, 780 A.2d 649, 653 n.9 (Pa. 2001); Bryant, 855 A.2d at 736-37, 740. Commonwealth's Brief, 12.

The Commonwealth also asserts that the "law of the case" doctrine precludes Appellant's requested relief.*fn20 According to the Commonwealth, since the issue of whether Appellant waived all claims of trial counsel's ineffectiveness not presented in a post-verdict motion was decided against Appellant by this Court in a previous appeal, we may not now alter or amend that ruling. Commonwealth's Brief, 12-13.

The Commonwealth further argues that even if the "law of the case" doctrine does not apply, Appellant is not entitled to relief in any event. The Commonwealth submits that the record of the waiver colloquy and the transcripts of the hearings on Appellant's post-verdict motions belie Appellant's assertion that he did not represent himself during those proceedings. Fletcher II, 896 A.2d at 521. The Commonwealth asks us to categorically reject Appellant's argument that his waiver was invalid because of his purported belief that the "relaxed waiver" doctrine excused his own ineffectiveness. The Commonwealth states that the record shows Appellant acknowledged he understood his failure to present a claim would result in waiver. Commonwealth's Brief, 15. Finally, the Commonwealth contends that Appellant's assertion that the trial court interfered with his right to represent himself entitles Appellant to no relief because Appellant failed to raise this issue either on direct appeal or in his PCRA petition. Commonwealth's Brief, 15.

With respect to Appellant's claim that he was incompetent and could not proffer a valid waiver of his right to counsel, the Commonwealth points out that Appellant has failed to present any evidence to support this assertion. In addition, the Commonwealth argues that the record demonstrates Appellant was not suffering from any mental defect rendering him incapable of proffering a valid waiver of counsel. It further argues that Appellant waived the claim because he refused to undergo a second mental health evaluation.*fn21

Commonwealth's Brief, 18-19. The Commonwealth further contends that the waiver colloquy was sufficiently complete because it was obvious to the trial court that Appellant was competent, and the court had no legal obligation to explain to Appellant the elements of the crimes or their sentences at the post-verdict stage of the proceedings or to inquire of Appellant why he wished to proceed pro se.*fn22

The Commonwealth requests that we reject Appellant's two due process claims because Appellant did not provide legal authority or provide the standards applicable to their review. Commonwealth's Brief, 22, 23-24. In addition, the Commonwealth contends that Appellant's assertion that a pro se defendant should be permitted to raise his own ineffectiveness is "contrary to controlling authority." Commonwealth's Brief, 22 (citing Faretta, 422 U.S. at 834 n.46 (holding that a defendant who represents himself cannot thereafter complain that he was the victim of ineffective counsel)). The claim that a defendant should be permitted to challenge the effectiveness of standby counsel is meritless, according to the Commonwealth, because this Court relied on controlling authority in Fletcher II to hold that Appellant was not entitled to relief and because Appellant provided non-controlling legal support for this claim. Commonwealth's Brief, 24.

Finally, the Commonwealth has provided the following summary of reasons why we should reject this claim:

As both this Court and the PCRA court correctly concluded, any claim defendant did not present in post-verdict motions is waived and cannot be reviewed under the guise of "layered ineffectiveness." Defendant--who bears the burden of pleading in his petition and proving that his claims are not waived, 42 Pa.C.S. § 9543 (a)(3), and of identifying where each issue he presents has been preserved, Pa.R.A.P. 2117(c), 2119(e)--has nonetheless failed to identify any of his instant claims as having been preserved in those motions. Accordingly, each of his claims should be deemed waived.

Commonwealth's Brief, 24-25.

Upon careful review of the briefs and arguments submitted by the parties, we hold that Appellant's argument that we should not adhere to our prior holding in Fletcher II is baseless. In Fletcher II this Court explicitly determined that Appellant acted as his own attorney during the post-verdict motions stage of the proceedings and that standby counsel's limited participation and the trial court's actions did not infringe or limit Appellant's ability to represent himself and present his claims. 896 A.2d at 522-23. Since this precise claim was raised previously, the "law of the case" doctrine clearly applies. We decline the invitation to revisit the issue of whether Appellant did, in fact, represent himself at post-verdict motions. See Commonwealth v. Starr, 664 A.2d 1326 (Pa. 1995).*fn23 While there are exceptions to the "law of the case" doctrine, Appellant has satisfied none; he has not presented any new facts, alleged any change in the law, or established that the decision reached in Fletcher II was erroneous such that these exceptions would apply. Starr, 664 A.2d at 1332.

Next, Appellant's assertions that he was incompetent to effectuate a valid waiver of counsel and that the waiver colloquy was deficient are not reviewable because Appellant has not preserved them by presenting them in a PCRA petition. See Pa.R.A.P. 302(a); Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa. 2004) ("Claims not raised in the PCRA court are waived and cannot be raised for the first time on appeal to this Court.").*fn24

Appellant's due process claims involving the inability to raise his own ineffectiveness or that of standby counsel do not entitle him to relief because the law is clear that a defendant who chooses to represent himself has no recourse if he or standby counsel has been ineffective. In Fletcher II, this Court held "[Appellant's] pro se actions precluded future claims of ineffective assistance of trial counsel." Fletcher II, 896 A2d at 522. See also Faretta, 422 U.S. at 834 n.46; Bryant, 855 A.2d at 736-37, 741; Commonwealth v. Appel, 689 A.2d 891, 904 (Pa. 1997). Our holding in Fletcher II was based on the United States Supreme Court's prior conclusion in Faretta where the Court explained that permitting pro se representation was a constitutional necessity because forcing experienced and competent legal representation on an unwilling defendant could be realized only "imperfectly." "The right to defend is personal" since it is the defendant that must bear the personal consequences of his representation. "And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.'" Faretta, 422 U.S. at 834. Thus, the Court explained, purely as a practical matter, in exercising one's right to self-representation, he or she relinquishes many of the benefits associated with the right to counsel, including the future right to allege ineffectiveness of counsel.*fn25 Also, were it otherwise, a pro se defendant could guarantee himself a new trial by intentionally being ineffective. Bryant, 855 A.2d at 736-37 (finding compelling trial court's observation that allowing a pro se defendant to raise his own ineffectiveness would make a mockery of the judicial system).

Appellant's request that we should apply the "relaxed waiver" doctrine and overlook his ineffectiveness during the post-verdict motions stage of the proceedings is equally unavailing. He argues the doctrine was in effect when he was tried and when he litigated his post-verdict motions, and he thus had a reasonable basis to assume that his own ineffectiveness would not be an impediment to review of any issue he failed to raise or preserve through his own ineffectiveness. We have categorically rejected this argument on numerous occasions and again do so here. See Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).

We hold that Appellant cannot obtain relief on any issue he failed to raise in a post-verdict motion while acting pro se. We now undertake a review of Appellant's remaining claims keeping in mind that Appellant is not entitled to relief on any claim that has not been properly preserved or has been previously litigated. See 42 Pa.C.S. § 9544(a).


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