J-S01029-25
2025 PA Super 55
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANDREW NEALY :
:
Appellant : No. 303 MDA 2024
Appeal from the PCRA Order Entered February 23, 2024
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004591-2017
BEFORE: NICHOLS, J., KING, J., and STEVENS, P.J.E.*
OPINION BY KING, J.: FILED: MARCH 10, 2025
Appellant, David Andrew Nealy, appeals from the order entered in the
Luzerne County Court of Common Pleas, which denied his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
This Court has previously set forth the relevant facts of this case as
follows:
On the night of October 12, 2013, [Appellant] and Roberto
Battle drove together to Outsiders bar in Wilkes-Barre,
Pennsylvania, in a silver 2005 Mercedes C230 sedan that
[Appellant] had borrowed from Michael Goodrich. As the
two men entered the bar, security overheard [Appellant]
introduce Battle as his “shooter.” Multiple staff and patrons
of the bar observed [Appellant] and Battle in the bar. As
the evening progressed, Battle fought with another patron
of the bar, and was evicted by security. [Appellant] left the
bar shortly thereafter, the two men departed together in the
silver Mercedes, and proceeded to the residence of Shakim
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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Varick and Jessica Fox. Varick grew up with [Appellant] and
Battle, and Battle occasionally stayed at Varick’s residence.
Battle knew where Varick stored a Keltec handgun in his
home. Battle entered the residence and removed Varick’s
Keltec handgun, loaded with Hornady Zombie 9mm
ammunition, then returned to [Appellant] in the waiting
Mercedes. Shortly after 2:00 a.m., [Appellant] and Battle
drove back to Outsiders.
The victim, Michael Onley, was in Outsiders on the evening
of October 12, 2013, taking promotional photographs for the
bar. Onley had several friends on the Outsiders security
staff, and was known to them and other patrons for his work
as a local DJ. When the bar closed, Onley exited the building
with patrons and staff, but lingered at the door where
security typically congregated after they made a final patrol
of the parking lot. As security was returning to the bar,
[Appellant] and Battle drove past on Pennsylvania Avenue,
and Battle fired multiple shots out of the passenger side
window of the Mercedes into the parking lot and building.
Dalair Edwards and Prince Rodriguez, bar security, heard
gunshots and saw muzzle flashes coming from the passing
silver sedan. Rodriguez, who testified that he could see the
car clearly, identified it as the one in which [Appellant] and
Battle left the club earlier. Security footage shows a passing
car with muzzle flashes coming from the passenger window.
When Edwards and Rodriguez returned to the bar entrance,
they saw the victim lying on the ground with a gunshot
wound to his head. Damien Pitters, a club patron in the
parking lot when the shots were fired, saw the victim fall
from a chair by the bar’s door. Pitters, an army combat
medic, moved to help, but despite efforts to revive the
victim, he died of the gunshot wound.
Following the shooting, [Appellant] and Battle drove
together to the home of Jamie Compton, where several
people were gathered. While there, the group learned that
the victim had been shot. In response to this news, Battle
laughed and said that he had “shot the place up.” After
leaving Compton’s residence, [Appellant] and Battle
returned together to Shakim Varick’s residence sometime
between 3:00 a.m. and 3:30 a.m., where they encountered
Varick and Jessica Fox. …Battle told Varick that [they] “did
a drive-by” on Pennsylvania Avenue, and admitted that he
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had used Varick’s gun. Upon learning this, Varick checked
and saw that the gun was no longer in the nightstand. Two
days later, Battle returned the gun to Varick, empty of
bullets. [Appellant] did not deny Battle’s statement.
[Appellant], when testifying on his own behalf, denied
knowing that Battle had a gun and intended to fire shots
into Outsider’s parking lot as staff and patrons exited the
bar, but [Appellant] admitted to hearing those shots being
fired and to abandoning the borrowed silver Mercedes after
learning that the victim had been killed. Additionally,
although [Appellant] expressed his remorse for the victim’s
death by the time the jury trial occurred, [Appellant] had
not aided in the investigation of the crime by divulging to
the police his knowledge of the night’s events, or Battle’s
identity as the shooter.
Commonwealth v. Nealy, No. 1021 MDA 2019, unpublished memorandum
at 1-3 (Pa.Super. filed Nov. 17, 2020), appeal denied, 666 Pa. 284,
252 A.3d
592 (2021) (quoting Trial Court Opinion, 12/10/19, at 6-8).
Procedurally:
A joint jury trial commenced on December 11, 2018, and,
on December 17, 2018, the jury found both [Appellant] and
Battle guilty of first-degree murder and criminal conspiracy.
On January 31, 2019, the trial court sentenced [Appellant]
to a mandatory life sentence on the first-degree murder
conviction, and a consecutive seventeen to forty-year term
of imprisonment on the conspiracy conviction. [Appellant]
filed a timely post-sentence motion in which he challenged
the sufficiency and the weight of the evidence supporting
his convictions. The trial court denied [Appellant’s] post-sentence motion on June 4, 2019. …
Id. at 3. This Court affirmed Appellant’s judgment of sentence on November
17, 2020, and our Supreme Court denied allowance of appeal on April 13,
2021. See id.
On May 27, 2022, Appellant timely filed a pro se PCRA petition. The
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court appointed counsel, who filed a supplemental PCRA petition on May 9,
2023. The court held a PCRA hearing on November 30, 2023, after which the
court took the matter under advisement. On February 23, 2024, the court
denied PCRA relief. Appellant timely filed a notice of appeal on February 29,
2024. On March 1, 2024, the court ordered Appellant to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and
Appellant timely complied on March 8, 2024.
Appellant raises one issue for our review:
Whether the PCRA Court erred by holding Trial Counsel was
not ineffective for failing to object to or file motions in limine
to prevent the admission of out of court statements from a
non-testifying codefendant during trial that violated
[Appellant’s] rights to Confrontation under the Pennsylvania
and Federal constitutions?
(Appellant’s Brief at 4).
“Our standard of review of [an] order granting or denying relief under
the PCRA calls upon us to determine whether the determination of the PCRA
court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting
Commonwealth v. Barndt,
74 A.3d 185, 191-92 (Pa.Super. 2013)). “The
PCRA court’s factual findings are binding if the record supports them, and we
review the court’s legal conclusions de novo.” Commonwealth v. Prater,
256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___,
268 A.3d
386 (2021). Further, where the PCRA court makes credibility determinations,
we are bound by them if they are supported by the record. Commonwealth
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v. Mojica, 242 A.3d 949 (Pa.Super. 2020), appeal denied,
666 Pa. 290,
252
A.3d 595 (2021).
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied,
663 Pa. 418,
242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
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. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied,
654 Pa. 568,
216 A.3d 1029 (2019) (internal citations and
quotation marks omitted).
Appellant argues that the admission of Battle’s out-of-court statements
at trial violated Appellant’s rights to Confrontation under both the
Pennsylvania and federal Constitutions. Appellant claims that Battle’s
statements, admitted at trial through the testimony of Varick,2 were direct
evidence that Appellant was an active participant in the victim’s murder.
Appellant highlights Varick’s testimony which stated that Battle had said
____________________________________________
2 Battle did not testify at trial.
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“they” did a drive-by shooting. Appellant insists that “they” could only have
meant Battle and Appellant. Appellant emphasizes that the Commonwealth
argued during closing arguments that “they” referred to Appellant and Battle.
Appellant also claims that another witness, Stephanie McGraw, also testified
that Battle said he did a drive-by shooting. When considering McGraw’s
statement in the context of other testimony that Appellant and Battle were
together the entire night the victim was murdered, Appellant submits this
testimony also implicated Appellant.
Appellant maintains that trial counsel should have filed motions in limine
to prevent admission of these statements at trial. Alternatively, Appellant
contends that trial counsel should have objected to Battle’s statements (by
way of Varick and McGraw’s testimony) at trial. Appellant insists this claim
has arguable merit because admission of Battle’s out-of-court statements
violated Appellant’s Confrontation Clause rights, and counsel had no
reasonable basis for failing to seek exclusion of this evidence. Appellant
further submits that he suffered prejudice where the court did not issue
cautionary instructions immediately after Battle’s statements were introduced
into evidence, Battle’s statements by way of Varick constituted direct evidence
that Appellant participated in the murder, and Battle’s statements by way of
McGraw constituted circumstantial evidence of Appellant’s participation in the
murder. Appellant emphasizes that no other direct evidence established that
Appellant was an active participant in the murder. Appellant also highlights
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that the Commonwealth reinforced Battle’s statements to the jury in closing
arguments. Appellant concludes trial counsel was ineffective on these
grounds, and this Court must vacate and remand for a new trial. We disagree.
“Under the Confrontation Clause of the Sixth Amendment, a criminal
defendant has a right to confront witnesses against him.” Commonwealth
v. Rivera, 565 Pa. 289, 299,
773 A.2d 131, 137 (2001), cert. denied,
535
U.S. 955,
122 S.Ct. 1360,
152 L.Ed.2d 355 (2002). A defendant is deprived
of his Sixth Amendment rights when his non-testifying co-defendant’s facially
incriminating confession is introduced at their joint trial, even if the jury is
instructed that the confession can be considered only against the confessing
co-defendant.
Id. Nevertheless, “[i]f a confession can be edited so that it
retains its narrative integrity and yet in no way refers to [the non-confessing]
defendant, then use of it does not violate the principles of Bruton[ v. U.S.,
391 U.S. 123,
88 S.Ct. 1620,
20 L.Ed.2d 476 (1968)].” 3 Commonwealth v.
Travers,
564 Pa. 362, 368,
768 A.2d 845, 848 (2001).
In Travers, our Supreme Court held that the redaction of a non-
testifying co-defendant’s confession in a joint trial, which replaced any direct
reference to the non-confessing co-defendant with a neutral pronoun, when
____________________________________________
3 In Bruton, the United States Supreme Court held that admission of a facially
incriminating confession by a non-testifying co-defendant introduced at the
defendant and co-defendant’s joint trial, deprives a defendant of his Sixth
Amendment right to confrontation, even where the court instructs the jury to
consider the confession only against the co-defendant. Id. at 135-37; 88
S.Ct. at 1627-28;
20 L.Ed.2d at ____.
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accompanied by an appropriate cautionary charge, sufficiently protected the
non-confessing defendant’s Sixth Amendment rights.4 Travers, supra at
372-73,
768 A.2d at 851. The Travers Court observed Pennsylvania law is
now clear that redacted statements trigger confrontation clause concerns
under Bruton only if the redacted statement on its face ties the defendant
to the crime, but not if the incrimination arises from linkage to other evidence
in the case.
Id. at 372 n.2,
768 A.2d at 850 n.2 (citing Gray v. Maryland,
523 U.S. 185,
118 S.Ct. 1151,
140 L.Ed.2d 294 (1998)).5 When the redacted
statement is not powerfully incriminating on its face, however, the general
rule that jurors can and will follow the court’s cautionary jury instructions
controls.
Travers, supra. See also Commonwealth v. Sanford,
470 A.2d
998 (Pa.Super. 1984) (holding there was no violation of Bruton where trial
court admitted redacted confessions of two of appellant’s co-defendants and
court replaced all mention of proper names with pronouns “we” and “us,” and
instructed jury that statements were to be considered only against speakers
and not against remaining defendants; this redaction, coupled with court’s
____________________________________________
4 In Travers, the direct references to the non-confessing defendant contained
in his co-defendant’s confession were replaced with the words “the other
man.”
5 In Gray, the prosecution had redacted co-defendant A’s confession by
substituting a blank space or the word “deleted” for co-defendant B’s name.
The High Court concluded that the redaction was insufficient as it did not make
a significant legal difference as compared to the original, unredacted
statement.
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limiting instructions, provided sufficient protection against denial of
appellant’s Sixth Amendment rights; use of “we” and “us” only alerted jury
that at least one other person had acted with speaker).
Moreover, even where a redacted confession violates Bruton, its
admission might be harmless error if other properly admitted evidence
overwhelmingly establishes the defendant’s guilt. Commonwealth v.
McGlone, 716 A.2d 1280, 1284 (Pa.Super. 1998), cert. denied,
528 U.S. 932,
120 S.Ct. 332,
145 L.Ed.2d 259 (1999). Further, “the United States Supreme
Court has not extended the reach of its per se Bruton rule to comments by
counsel, which are by definition nonevidentiary.” Commonwealth v. Roney,
622 Pa. 1, 57,
79 A.3d 595, 629 (2013), cert. denied,
574 U.S. 829,
135 S.Ct.
56,
190 L.Ed.2d 56 (2014). “[U]nder certain circumstances a prosecutor’s
comments might be so prejudicial as to raise the possibility of a Bruton
violation, e.g., if the prosecution discloses to the jury that the co-defendant’s
statement has been redacted and unequivocally identifies the defendant as
the individual whose name was removed.” Id. at 58,
79 A.3d at 629 (internal
citation and quotation marks omitted) (holding that prosecutor’s implicit
linkage of one co-defendant’s statement to appellant and other co-defendant
referring to co-defendants collectively as “they” did not rise to egregious level
to constitute Bruton violation).
Instantly, the PCRA court evaluated Appellant’s claim as follows:
Appellant’s concise statement alleges that [the court] erred:
“by denying (Appellant’s) claim under subsection B of the
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supplemental PCRA Petition filed on May 9, 2023, that his
trial counsel was ineffective for failing to object to the
hearsay statements of his co-defendant…” Appellant’s
supplemental PCRA Petition at subsection (B) also citing
Bruton, identifies four (4) statements which he complains
counsel was ineffective for failing to object to as follows:
A. Stephanie McGraw testified that Mr. Battle and
[Appellant] arrived at her house together and Mr.
Battle said “that he shot up the place and proceeded
to laugh about it.” Trial Tr. 182:8-18.
B. Shakim Varick testified that “When I asked Battle
what’s going on, he said they put in work” which
meant that he and (Appellant) physically harmed
someone. Trial Tr. 219:15-220:5.
C. Shakim Varick specifically testified that Mr. Battle
said “they” meaning (Appellant) and himself jointly,
did a drive by shooting. Trial Tr. 220:3-23.
D. Jessica Fox testified that Mr. Battle, among others,
were discussing the shooting at Outsiders the night
the shooting occurred with the clear implication that
they were involved in the shooting. Trial Tr. 260:3-
14[.6]
As Appellant’s counsel points out, Stephanie McGraw
testified that she encountered Battle and Appellant just after
the killing and Battle said, “that he shot up the place and
proceeded to laugh about it.” Voluntary extrajudicial
statements made by a defendant may be used against him
and are generally considered to qualify for admission into
evidence pursuant to the admission exception to the rule
against hearsay. Commonwealth v. Kitchen, [730 A.2d
513 (Pa.Super. 1999)]. Battle’s statement to Stephanie
McGraw admitting to “shooting up the place” is thus not
hearsay.
Battle’s statement to McGraw does not implicate the rule in
____________________________________________
6 Appellant does not challenge the statement by Jessica Fox on appeal, so we
do not discuss it further.
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Bruton either. …
In the present case, Co-defendant Battle’s out of court
statements to McGraw which implicate him directly in the
killing of [the victim] did not directly implicate Appellant.
Though Appellant argues that Battle’s confessions to
McGraw incriminated Appellant by implication, such
evidence has not been held to violate a defendant’s 6 th
Amendment Confrontation rights. When we instructed the
jury, we gave a cautionary instruction directing them not to
consider Battle’s statements against Appellant. This
allegation of error is meritless.
Appellant was not prejudiced by McGraw’s testimony either.
Appellant testified at trial and in so doing he identified
himself as the driver and Battle as the shooter in the drive
by shooting that killed [the victim]. His testimony totally
eclipses the purported hearsay testimony offered by
McGraw. Indeed, at the PCRA hearing, Appellant testified
that he wanted trial counsel to recall McGraw to the stand
to repeat the statement Battle made to her. For each of
these reasons, Appellant’s allegations of error relative to the
testimony of McGraw are wholly without merit.
Appellant next cites two statements from the testimony of
Shakim Varick which he argues alternatively are hearsay
which also implicates his Confrontation Rights triggering the
application of the rule announced in Bruton. Shakim Varick
encountered Appellant and Battle at his residence at
approximately 3:30 AM on the night of the killing. At trial,
Varick testified that he saw Appellant that night and it
looked like he was sweating. The relevant exchange
followed:
Q: How did they look to you at this point?
Varick: (Appellant) was sweating. When he came
through I asked him what’s going on and he said I
should ask Battle what’s going on?
Q: So he told you to ask Battle what’s going on?
Varick: Yes.
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Q: What happened when you asked Battle what’s
going on?
Varick: When I asked Battle what’s going on, he said
they put in work.
Q: When he said they put in work, can you tell us what
that means?
Varick: Like physically harming somebody.
Q: Did there come a time they actually described what
they did?
Varick: Yes
Q: Describe that?
Varick: When I asked Battle what did he do and he
said, yeah, I did a drive by?
Q: They did a drive-by?
[Varick]: Yes.
Q: He didn’t say I did a drive-by?
[Varick]: No.
(Trial N.T. 219-220).
… [Under Sanford, supra], Battle’s statements implicating
himself and, only by implication, Appellant, do not fall within
the ambit of Bruton.
…
… We agree with trial counsel’s assessment because not
one of Battle’s statements directly implicates Appellant. …
Accordingly, Appellant’s claim lacks arguable merit, and
because trial counsel clearly had a reasonable basis for not
filing a frivolous motion, his claim of error fails.
(PCRA Court Opinion, filed 5/24/24, at 6-10; 13) (some internal citations
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omitted).
We agree with the PCRA court’s analysis. Trial counsel testified at the
PCRA hearing that he did not object to Varick’s statement that “when I asked
Battle what’s going on he said, they put in work” because the statement did
not specifically mention Appellant. (See N.T. PCRA Hearing, 11/30/23, at 4-
5). Trial counsel stated that “[i]t was a vague statement made by Mr. Varick
when he was trying to make a deal with the United States Attorney’s Office
and signed a Kastigar[7] letter in order to basically become a witness for the
Commonwealth.” (Id. at 5). When PCRA counsel asked trial counsel if he
was aware that Varick was going to testify that Battle said “they, meaning,
[Appellant] and Battle did a drive-by shooting[,]” trial counsel reiterated that
Battle used the generic they and did not specifically implicate Appellant. (Id.)
(emphasis in original) (some internal quotation marks omitted).
When asked why trial counsel did not file motions in limine to exclude
the challenged statements, trial counsel emphasized that “the statements that
were discussed, none of them specifically identified [Appellant] by name.
Even if it were with regard to any statements that perhaps Mr. Battle may
have made, as far as being in an incriminating nature, my recollection is that
at no time did Mr. Battle specifically identify [Appellant].” (Id. at 7). Trial
____________________________________________
7 Kastigar v. United States, 406 U.S. 441,
92 S.Ct. 1653,
32 L.Ed.2d 212
(1972) (explaining that transactional immunity provides witness full immunity
from prosecution for crimes arising from any transaction concerning which
witness was compelled to testify).
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counsel continued: “He used generic terminology like we or that the place
was shot up. He never identified [Appellant] as having been complicit in
that.” (Id.) (emphasis in original). Trial counsel went on to state that when
he “did the research on Bruton, which would basically preclude some of those
statements had they identified [Appellant], they had already been realistically
redacted because the remedy is for the [c]ourt to redact any specific reference
to a co-defendant in a joint trial, which this was.” (Id.) The following
exchange then took place between PCRA counsel and trial counsel:
[PCRA counsel]: And you would agree with me that for
at least the statement that Shakim Varick testified to that
when I asked Battle what’s going on he said, they put in
work. Only [Appellant] and Mr. Battle and Mr. Varick were
present for that statement, right?
[Trial counsel]: I think supposedly one or two of the
other females were possibly at that location, as well. And
Mr. Varick supposedly had not been around at the time of
the shooting. Who also interestingly enough drove a
similarly colored vehicle and style-type vehicle as
[Appellant].
[PCRA counsel]: You would agree with me though that
Mr. Battle’s statement that they only referred to himself and
[Appellant]?
[Trial counsel]: I did not draw that conclusion because
the statement was vague enough that—we put in the
work, okay. Well, that doesn’t necessarily mean that any
other person that was along with Mr. Battle, might not have
gone to the apartment. May have stopped off somewhere
else. May have gone someplace else.
But he never specifically identified [Appellant]. Nor from
what I can recall from discovery, which I extensively
reviewed and actually had another attorney help me review
because I was concerned about these statements, was
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basically he never specifically refers to [Appellant].
And we and those different terms and the terminology that
Mr. Battle was using was generic in nature. And from what
I recall, [Appellant] never said anything with regards to that
he was complicit. My understanding was he was sulking in
a corner. Apparently according to one of the witnesses,
seeming somewhat upset. That, I don’t believe, lead me to
believe that was who Mr. Battle was referring to,
[Appellant].
(Id. at 7-9) (emphasis in original).
Trial counsel also indicated that he did not want to draw any attention
to this statement by objecting to it because, in counsel’s experience, “that
draws attention to the jury to something that is quite frankly you want to
leave it as is; they.” (Id. at 11) (emphasis in original). Trial counsel
suggested that Battle’s reference to “they” could have included Appellant “or
any one of another dozen people who could have been involved, including Mr.
Varick, who mysteriously had disappeared to New York and then reappeared
right after the shooting.” (Id.) As part of his trial strategy, trial counsel
explained that he would not want to highlight Battle’s statements by objecting
to them, which are statements against interest, especially where it did not
specifically identify his client, Appellant. (Id.) Trial counsel indicated that
part of his trial strategy was “pointing the finger” at Mr. Varick, who counsel
argued received a “sweetheart deal” in exchange for his testimony. (Id. at
13-14).
Regarding Stephanie McGraw’s statement that Battle said “that he shot
the place up and proceeded to laugh about it[,]” trial counsel explained that
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he did not object to this statement, which only implicated Battle. (Id. at 9-
10). Trial counsel repeated that “[a]s far as I could tell, when I reviewed the
file in whole, I don’t believe at any point in time did [Battle] specifically
implicate [Appellant] as being an accomplice, an associate or in any way being
involved in this.” (Id. at 10). Regarding this statement, Appellant testified
at the PCRA hearing that he believed “the statement couldn’t hurt me. If
anything, it more helps more towards my defense.” (Id. at 27). When the
statement was made at trial, Appellant claimed he wanted trial counsel to
recall McGraw so trial counsel could “put more light onto her statement.” (Id.
at 27-28).
On this record, we agree with the PCRA court that Appellant’s claim lacks
arguable merit. As to McGraw’s statement, the record makes clear that
McGraw’s testimony concerning what Battle said implicated only Battle, where
Battle said “he shot the place up and then proceeded to laugh about it.” (See
N.T. Trial, 12/12/18, at 182) (emphasis added). As nothing in this statement
is facially incriminating as to Appellant, any challenge to this statement merits
no relief. See Rivera, supra. Further, as previously mentioned, Appellant
testified at the PCRA hearing that McGraw’s testimony to this effect
strengthened Appellant’s theory of the case, and Appellant even wanted to
recall McGraw to provide more details about this statement. Thus, Appellant’s
claim that trial counsel was ineffective for failing to move for exclusion of this
evidence lacks arguable merit, and Appellant did not suffer prejudice
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concerning this statement by McGraw in any event. See Sandusky, supra.
Regarding Varick’s statements that Battle had said “they put in work”
(see N.T. Trial, 12/12/18, at 219) and “they did a drive-by” (see id. at 220),
we agree with trial counsel that Battle’s use of the word “they” effectively
redacted the statements and did not directly implicate Appellant to trigger a
violation of Bruton. See Rivera, supra. See also
Travers, supra;Sanford, supra. Although Appellant contends that these statements implied
that Battle was referencing Appellant because other evidence showed
Appellant and Battle were together the entire night, such implication is not
“facially incriminating” against Appellant to trigger Bruton concerns. See
Travers, supra;Sanford, supra. Further, we disagree with Appellant’s
contention that the context of Varick’s statement made clear that Battle was
necessarily talking about himself and Appellant when using the word “they.”
Although the context of the statement begins with Varick explaining how
Appellant and Battle had arrived at Varick’s house (see N.T. Trial, 12/12/18,
at 218-19), that does not lend itself to the conclusion that Battle must have
been referencing Appellant when he said, “they put in the work” and “they did
a drive by.”
Notably, the court also issued a cautionary instruction during its jury
charge. (See N.T. Trial, 12/17/28, at 685) (stating: “A statement made
before trial may be considered as evidence only against the defendant who
made that statement. Thus, you may consider the statements as evidence
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against the defendant, Roberto Battle, if you believe he made the statement
voluntarily. You must not, however, consider the statement as evidence
against [Appellant]; and you must not use the statement in any way against
him"). The jury is presumed to have followed the court’s instructions. See
Travers, supra. Appellant fails to acknowledge the instruction given during
the jury charge and complains that the court did not issue an immediate
cautionary instruction. Appellant cites no law, however, to support an
argument that an immediate cautionary instruction is required to remedy a
potential Bruton violation. Moreover, even if the challenged statements
violate Bruton, such error is harmless where Appellant testified at trial that
he was driving the vehicle when Battle fired the shots. (See N.T. Trial,
12/14/18, at 542-553). See also
McGlone, supra.
Further, counsel made clear that he did not file motions in limine to
exclude the challenged statements where they did not mention Appellant by
name, and did not object to them at trial because counsel did not want to
highlight the testimony for the jury. We cannot say that counsel’s chosen
strategy was unreasonable based on the controlling law. See Sandusky,
supra.
Appellant also claims prejudice where the prosecutor highlighted the
challenged statements in the prosecutor’s closing arguments. Nevertheless,
the prosecutor’s statements are not evidence. See Roney, supra. As well,
the prosecutor’s argument that Battle’s reference to “they” meant Appellant
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J-S01029-25
and Battle was a proper inference based on the evidence, particularly in light
of Appellant’s testimony. Additionally, Appellant claims that he “may not
have testified if these improper statements did not place him at the scene of
the murder and with the murderer before and after [the victim] was killed.”
(Appellant’s Brief at 24) (emphasis added). Initially, this does not satisfy the
prejudice threshold, i.e., that there is a reasonable probability that the
outcome of the proceedings would have been different. See Sandusky,
supra. Further, Appellant made no claim at the PCRA hearing that he would
not have testified in his own defense had the challenged statements not come
in at trial. Based upon the foregoing, we agree with the PCRA court that
Appellant has failed to demonstrate trial counsel’s ineffectiveness on the
grounds alleged. See
id. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 3/10/2025
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