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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

             

             

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ILLIAM PLUMMER       

 

Appellant 

 No. 1623 EDA 2021 

Appeal from the PCRA Order Entered July 8, 2021 
In the Court of Common Pleas of Philadelphia County  
Criminal Division at No(s):  CP-51-CR-0003690-2014 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

ILLIAM PLUMMER       

 

Appellant 

 No. 2070 EDA 2021 

Appeal from the PCRA Order Entered July 8, 2021 
In the Court of Common Pleas of Philadelphia County  
Criminal Division at No(s):  CP-51-CR-0015155-2013 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

ILLIAM PLUMMER       

 

Appellant 

 No. 262 EDA 2022 

Appeal from the PCRA Order Entered July 8, 2021 
In the Court of Common Pleas of Philadelphia County  
Criminal Division at No(s):  CP-51-CR-0003689-2014 

EFORE:  PANELLA, P.J., STABILE, J., and KING, J. 

v. 

v. 

v. 

 

 

 

 

 

 

     

   

     

   

     

   

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MEMORANDUM BY PANELLA, P.J.: 

FILED MARCH 16, 2023 

 

William Plummer appeals, pro se, from the orders dismissing his petition 

for  relief  filed  pursuant  to  the  Post  Conviction  Relief  Act  (“PCRA”).1  See  42 

Pa.C.S.A. §§ 9541-9546. Plummer raises numerous ineffective assistance of 

counsel claims. We affirm.  

 

This Court previously set forth the underlying facts as follows: 

On September  29, 2013, at around 1:00 a.m., Ronald Elliot left 
his  girlfriend,  Kandis  Fowler’s,  home  at  3601  Conshohocken 
Avenue  and  went  to  the  apartment  building’s  parking  lot. 
[Plummer]  and  two  other  men,  holding  fake  police  badges, 
jumped  out  of  the  bushes  and  yelled  “Freeze,  Police.”  Elliot  ran 
out  of  the  parking  lot  and  across  the  street  as  the  three  men 
chased  him.  [Plummer]  stopped  pursuing  Elliot  and  acted  as  a 
lookout  standing  on  the  sidewalk  on  the  parking  lot  side  of  the 
street  while  the  other  two  men  caught  Elliot  across  the  street. 
After the two men hit Elliot four or five times in the head with a 
firearm, cutting him on the head, the two men took Elliot’s watch, 
money and car keys. The men joined back up with [Plummer] and 
all three men ran to the parking lot. Elliot saw [Plummer] drive off 
in Fowler’s Ford Expedition.  
 

____________________________________________ 

1 Plummer filed timely appeals at 1623 EDA 2021 and 2070 EDA 2021. At 262 
EDA 2022, Plummer filed a pro se notice of appeal from the July 8, 2021 order 
on January 11, 2022, which would make the appeal untimely. However, the 
PCRA court docket does not indicate that the July 8, 2021 order was served 
on Plummer or the date of service of the order. See Pa.R.Crim.P. 114(B)(1) 
(“A copy of any order or court notice promptly shall be served on … the party 
if  unrepresented.”);  Pa.R.Crim.P.114(C)(2)(c)  (requires  the  criminal  docket 
entries to include “the date of service of the order”); see also Pa.R.Crim.P. 
907(4)  (providing  that  a  PCRA  court  order  dismissing  a  petition  without  a 
hearing “shall be filed and served as provided in Rule 114.”). Therefore, we 
consider  the  appeal  at  262  EDA  2022  to  be  timely.  Furthermore,  because 
these  appeals  have  a  substantially  similar  procedural  history  and  raise  the 
same legal questions, we consolidate them sua sponte and will consider them 
together. 

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On  February  5,  2014,  after  [Plummer]  had  been  arrested  and 
charged with [the] robbery of Elliot, Elliot received multiple phone 
calls from [Plummer]. [Plummer] threatened Elliot, explaining that 
if  Elliot  attended  the  next  court  date  [Plummer]  was  going  to 
firebomb the homes of Elliot’s mother, girlfriend, and grandparent 
and kill Elliot….  

n February 9[,] 2014, Valerie and Russell Fowler, Kandis Fowler’s 
parents, were living in a row home on Washington Lane. At about 
4:00  a.m.,  Valerie  Fowler  heard  a  “bang”  and  smelled  smoke. 
Russell Fowler went downstairs and saw a small fire in the back 
yard.  After  the  fire  was  extinguished,  Russell  Fowler  noted  that 
the  first  floor  back  window  was  broken  and  saw  a  bottle  with  a 
wick in it in the back yard.  

etective  Timothy  Brooks  of  the  Philadelphia  Police’s  Bomb 
Disposal  Unit  and  an  expert  in  arson  explosives  arrived  at  the 
Fowler’s  home  on  Washington  Lane  shortly  after  the  fire  was 
extinguished.  Outside  the  back  of  the  house,  Detective  Brooks 
observed two bottles with wicks in them, one intact and the other 
shattered,  which  he  believed  to  be  Molotov  cocktails.  Detective 
Brooks observed strike marks on the back window and a broken 
bottle at the bottom of the basement steps that indicated that a 
Molotov  cocktail  had  struck  the  house  and  fallen  to  the  ground. 
The intact bottle contained liquid and a cloth wick, which smelled 
of  gasoline.  Detective  Brooks  recovered  the  bottles,  wicks,  and 
liquid.  

n  February  9,  2014,  Detective  Kevin  Sloan  requested  that 
Philadelphia prison authorities search [Plummer’s cell]. The prison 
authorities recovered a cell phone in [Plummer’s] cell. According 
to  Cricket  Communications’  records,  the  cell  phone  recovered 
from [Plummer’s] cell had been used  to call  Elliot four  times on 
February 5, 2014.  

Plummer] testified on his own behalf. [He] asserted that in the 
first week of September 2013, Elliot gave [Plummer] $15,000 to 
purchase  drugs  for  him.  [Plummer]  kept  the  money  but  did  not 
purchase the drugs. [Plummer] asserted that on September 29, 
2013,  he  was  not  on  Conshohocken  Avenue  but  instead  was  in 
Norristown.  [Plummer]  explained  that  he  was  unable  to  run 
because he was shot many years before. [Plummer] admitted that 
he had called Elliot but claimed the call was to arrange to return 
Elliot’s money in exchange for Elliot not appearing at trial. 

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Plummer]  was  charged  with  numerous  crimes  at  the  above-
captioned docket numbers. Ultimately, a jury convicted him of one 
or more counts each of conspiracy, aggravated assault, robbery, 
robbery  of  a  motor  vehicle,  arson,  risking  a  catastrophe, 
intimidation  of  a  victim,  retaliation  against  a  victim,  and 
contraband  (non-controlled  substance).  [Plummer]  received  an 
aggregate  sentence  of  thirty  to  sixty  years  of  incarceration.  On 
direct appeal, this Court affirmed, and our Supreme Court denied 
[Plummer]’s 
appeal.  See 
Commonwealth v. Plummer, 153 A.3d 1110 (Pa. Super. 2016) 
(unpublished memorandum), appeal denied, 159 A.3d 938 (Pa. 
2016).  

allowance 

petition 

for 

of 

Plummer]  filed  a  timely  pro  se  PCRA  petition,  and  counsel  was 
appointed. Counsel filed an amended petition, including only four 
of  the  many  claims  that  [Plummer]  raised  in  his  pro  se  filings. 
for  the 
Displeased  by  the  omissions,  [Plummer]  applied 
appointment of new counsel. [Plummer] also filed a letter in which 
he contended that PCRA counsel had a duty to pursue each and 
every  claim  that  [Plummer]  wished  to  raise,  or  to  file  “a  hybrid 
[Commonwealth  v.  Turner,  544  A.2d  927  (Pa.  1988); 
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 
banc) letter” explaining why there was no merit in the claims he 
chose not to include in the amended petition. Citing [Plummer’s] 
lack of faith in his representation, counsel sought to withdraw and 
have  the  PCRA  court  appoint  new  counsel  or  hold  a  hearing 
pursuant  to  Commonwealth  v.  Grazier,  713  A.2d  81,  82  (Pa. 
1998)…. For reasons not apparent from the certified record, the 
PCRA  court  denied  the  request  without  conducting  a  Grazier 
hearing.  

Plummer] next filed a motion to proceed pro se, which the PCRA 
court addressed at the outset of the hearing it had scheduled on 
the  claims  raised  in  counsel’s  amended  petition.  [Plummer] 
informed the court that he did not want to represent himself, but 
rather he desired to have counsel pursue all of the claims that he 
wished to raise. The PCRA court deferred addressing that  issue, 
instead having PCRA counsel conduct the questioning of witnesses 
in connection with the issues raised in the counseled petition. At 
the end of the hearing, the PCRA court scheduled another date for 
[Plummer] to present additional witnesses.  
 

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In between hearings, [Plummer] filed another motion to proceed 
pro  se,  citing  “irreconcilable  differences  and  the  lack  of 
communication  on  strategy.”  At  the  second  PCRA  hearing,  the 
PCRA  court  did  not  conduct  a  Grazier  hearing  or  otherwise 
address  [Plummer’s]  renewed  request  for  self-representation. 
Instead, counsel continued to represent [Plummer] at the second 
hearing, presenting and cross-examining witnesses. Following the 
close of evidence and the arguments of counsel, the PCRA court 
invited [Plummer] to state “what it is that you want preserved for 
the record[.]” [Plummer] indicated, inter alia, that he wanted the 
pro  se  PCRA  claims  that  counsel  omitted  from  the  amended 
petition  to  be  “exhausted.”  At  that  point,  the  PCRA  court 
conducted a colloquy to determine whether [Plummer] wished to 
make a knowing and voluntary waiver of his right to counsel. The 
PCRA court [dismissed the amended PCRA petition. Further, the 
PCRA court] concluded that [Plummer] desired to proceed pro se 
on  appeal,  and  ultimately  entered  an  order  allowing  counsel  to 
withdraw. 

ommonwealth v. Plummer, 2042 EDA 2018 (Pa. Super. filed Apr. 1, 2020) 

  C

(unpublished memorandum at 2-5) (citations and footnote omitted). 

 

On  appeal,  this  Court  vacated  the  order,  finding  that  the  PCRA  court 

erred  in  failing  to  conduct  a  Grazier  hearing  when  the  court  was  first 

presented  the  issue  of  Plummer’s  desire  to  raise  all  of  his  PCRA  claims. 

Accordingly, this Court remanded for Plummer to file a pro se amended PCRA 

petition,  raising  the  claims  he  wished  the  PCRA  court  to  resolve.  See  id. 

(unpublished memorandum at 15-16). 

 

On  remand,  Plummer  filed  several  amended  PCRA  petitions,  raising 

ineffective assistance of trial, appellate, and PCRA counsel claims. The PCRA 

court issued a Pa.R.Crim.P. 907 notice. Plummer filed a response. Thereafter, 

the PCRA court dismissed Plummer’s petition. These timely appeals followed. 

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On  appeal,  Plummer  raises  a  voluminous  amount  of  ineffectiveness 

claims regarding his trial, appellate, and PCRA counsel, and claims of error by 

the  PCRA  court.  See  Appellant’s  Brief  at  5-6  (raising  8  issues);  Appellant’s 

Supplemental Brief at 4-9 (raising 22 issues labeled A through V). In essence, 

Plummer argues that (1) trial counsel and appellate counsel were ineffective 

for  failing  to  challenge  the  trial  court’s  jury  instruction  as  to  criminal 

conspiracy;  (2)  trial  counsel  was  ineffective  for  failing  to  file  a  motion  to 

suppress  the  cell  phone  found  in  his  prison  cell;  (3)  trial  counsel  was 

ineffective  for  failing  to  investigate  a  corroborating  witness  who  was 

Plummer’s cellmate; (4) trial counsel was ineffective for failing to challenge 

testimony or  evidence relating  to the cellphone  found in his prison  cell; (5) 

trial counsel was ineffective for not seeking discovery from the Commonwealth 

regarding his character; (6) PCRA counsel was ineffective for failing to raise 

numerous claims; and (7) the PCRA court erred in failing to order him to file 

a  Rule  1925(b)  concise  statement  so  that  it  could  more  fully  address  his 

claims. See Appellant’s Brief at 12-18; Appellant’s Supplemental Brief at 10-

51.  

Our standard of review regarding a PCRA court’s order “is whether the 

determination of the PCRA court is supported by the evidence of record and is 

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super. 

2017).  “The  PCRA  court’s  findings  will  not  be  disturbed  unless  there  is  no 

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support for the findings in the certified record.” Commonwealth v. Garcia, 

23 A.3d 1059, 1061 (Pa. Super. 2011) (citation omitted). 

Further,  to  succeed  on  an  ineffectiveness  claim,  Plummer  must 

demonstrate by a preponderance of evidence that “(1) the underlying claim 

has arguable merit; (2) counsel had no reasonable basis for his or her action 

or inaction; and (3) the petitioner suffered prejudice as a result of counsel’s 

action or inaction.” Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018) 

(citation omitted). Counsel is presumed to be effective, and the burden is on 

Plummer to prove otherwise. See Commonwealth v. Simpson, 66 A.3d 253, 

260 (Pa. 2013). A failure to satisfy any prong of the test for ineffectiveness 

will  require  rejection  of  the  claim.  See  Commonwealth  v.  Montalvo,  244 

A.3d 359, 368 (Pa. 2021). 

To be eligible for relief on a claim that appellate or PCRA counsel was 

ineffective,  the  petitioner  “must  meet  all  three  prongs  of  the  .  .  .  test  for 

ineffectiveness” for each counsel. Commonwealth v. Chmiel, 30 A.3d 1111, 

1128 (Pa. 2011) (citation omitted). “A failure to satisfy any of the three prongs 

of  the  [ineffectiveness]  test  requires  rejection  of  a  claim  of  ineffective 

assistance of trial counsel, which, in turn, requires rejection of a layered claim 

of ineffective assistance of” appellate or PCRA counsel. Id. (citation omitted). 

First,  Plummer  claims  that  trial  and  direct  appeal  counsel  were 

ineffective for failing to argue that the court improperly instructed the jury in 

response to a jury question on the criminal conspiracy charge. See Appellant’s 

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Brief  at  12-14.  More  specifically,  Plummer  argues  that  trial  counsel  was 

ineffective  for  failing  to  object  to  the  instruction,  baldly  claiming  that  the 

instruction relieved the Commonwealth of its burden to prove each element 

of  the  crimes  charged  beyond  a  reasonable  doubt.  See  id.  at  12.  Plummer 

asserts that the trial court failed to explain to the jurors that they had to find 

the Commonwealth had proved every element of the robbery charges before 

they could find him guilty. See id. at 13. According to Plummer, his claim has 

arguable  merit,  neither  counsel  had  a  reasonable  basis  to  fail  to  raise  this 

issue, and he was clearly prejudiced. See id. at 13-14. Plummer also claims 

that PCRA counsel was ineffective for failing to obtain affidavits from trial and 

appellate counsel to determine whether either counsel had a reasonable basis 

for their failure to raise the jury instruction issue. See id. at 13. 

When evaluating the propriety of jury instructions, this Court will 
look  to  the  instructions  as  a whole,  and  not  simply  isolated 
portions,  to  determine  if  the  instructions  were  improper. We 
further  note  that,  it  is  an  unquestionable  maxim  of  law  in  this 
Commonwealth that a trial court has broad discretion in phrasing 
its instructions, and may choose its own wording so long as the 
law is clearly, adequately, and accurately presented to the jury for 
its consideration. Only where there is an abuse of discretion or an 
inaccurate statement of the law is there reversible error. 
 

Commonwealth  v.  Antidormi,  84  A.3d  736,  754  (Pa.  Super.  2014) 

(citations and brackets omitted). 

 

During deliberations, the jury asked the trial court: “If we find that the 

defendant is guilty of criminal conspiracy the night of the carjacking, does that 

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responded as follows: 

make  him  guilty  of  the  other  charges?”  N.T.  2/12/15,  at  9.  The  trial  court 

I  want  to  start  off  by  telling  you  that  to  reemphasize  –  not 
reemphasize, but to reiterate that there are two different types of 
conspiracy involved in this case. There is a conspiracy as a type 
of liability, and that was when I talked to you about how you can 
be responsible for the crime even if you didn’t physically commit 
it under a conspiratorial liability and/or accomplice liability. 

hen I said that the crime of conspiracy in and of itself is a crime 
in Pennsylvania. And you have separate incidents in this case. So 
the simple answer is let’s talk about the one incident in which the 
defendant is charged with the robbery, the carjacking, conspiracy, 
and the PIC. 

ou can have a conspiracy for that evening, all right, and we will 
talk about those incidents, but I want to make it clear that that 
conspiracy  would  not  jump  ahead  to  the  other  incidents.  There 
would  have  to  either  be  separate  conspiratorial  liability  for  the 
other charges, the intimidation, the retaliation, the arson, and the 
conspiratorial liability, or the defendant has been charged with the 
crime of conspiracy, and that's why there’s two separate charges 
of conspiracy. 

ow, you may have already figured that out and that may not be 
exactly what you were asking, but I wanted to preface my reading 
of the criminal conspiracy again to just make it very clear to you 
that if -- you have to look on the specific date to see if there was 
a conspiracy.  

o you have conspiratorial liability. Now we’re going to get to the 
crime of conspiracy. Understand that the elements are the same, 
okay. So what it really breaks down to is you can be convicted on 
a  conspiratorial  liability  without  ever  being  charged  with 
conspiracy,  but  in  this  particular  case  the  defendant  has  been 
charged with conspiracy. 

o in order to determine whether or not he’s guilty of -- we refer 
to  it  as  the  underlying  crime  or  crimes,  so  in  this  case  you’ve 
specifically asked about carjacking, what you have to do is make 
sure that the object of the crime if there's a conspiracy the specific 
crime that you’re evaluating. 

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o,  in  other  words,  I  don’t  know  what  facts  you’ve  determined, 
and I’m not going to speculate on that because that’s not my job, 
but you have to remember make sure that the object crime or the 
agreement is a specific crime that you’re considering. 

o in order -- let me use your example of carjacking. In order to 
convict the defendant of criminal conspiracy, you would have to 
determine  that  there  was  an  agreement  and  that  there  was  a 
specific  agreement  to  commit  the  carjacking.  If  you  look  at  the 
robbery, then you have to determine whether there was a specific 
agreement to commit the robbery. And that one person or more 
took a substantial step in furtherance of the agreement. 

n other words, there has to be the common understanding and 
it’s a firm common understanding that the particular crime would 
be committed. 

o,  remember,  there’s  the  agreement  and  then  the  defendant 
cannot be convicted of conspiracy unless he or a fellow conspirator 
does something more, an overt act. So as long as someone does 
an  overt  act  in  the  furtherance  of  the  conspiracy,  that  means 
something  that  would  further  the  goal  of  the  conspiracy,  that 
shows that the parties have a firm agreement and they’re not just 
talking about or thinking about a crime, as I said to you before, 
the act has reached the action stage. 

o  in  this  particular  case  remember  what  happens  is  under 
conspiratorial liability the defendant becomes responsible for the 
actions of the other individuals for the specific crime. 

hen  when  you  look  at  the  charge  of  conspiracy,  it’s  a  whole 
separate  charge  itself.  So  the  law  says  it’s  not  just  a  theory  of 
liability.  In  Pennsylvania  we’re  making  the  agreement  and  the 
action in furtherance of the agreement an additional charge other 
than just let’s say the robbery or the carjacking. 

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Contrary  to  Plummer’s  assertion  of  error,  our  review  of  the  record 

reveals  that,  when  taken  in  its  entirety,  the jury instruction  was  specifically 

tailored  to  answer  the  question  and  appropriately  reflected  the  law  and 

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d. at 9-14. 

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accurately  described  the  differences  between  conspiratorial  liability  and  the 

conspiracy.  Importantly,  during  the  original  charge,  the  trial  court  also 

instructed  the  jury  on  the  robbery  and  robbery  of  a  motor  vehicle  charges. 

See  id.  at  200-02.  Moreover,  the  trial  court  has  provided  the  jury  with  an 

extensive  instruction  for  the  conspiracy  charges  in  its  original  charge.  See 

N.T., 2/11/15, at 197-200, 202-06. It is presumed that the jury will “follow the 

trial court’s instructions,” Commonwealth v. Vucich, 194 A.3d 1103, 1113 

(Pa.  Super.  2018)  (citation  omitted),  and  Plummer  takes  no  issue  with  the 

original instructions. Accordingly, Plummer fails to demonstrate that there was 

arguable merit to his underlying claim or that any of the verdicts would have 

been  different  with  any  additional  charge.  Therefore,  trial  counsel  was  not 

ineffective for failing to object to the trial court’s instruction, and by extension, 

appellate counsel was not ineffective. See Chmiel, 30 A.3d at 1128 (noting 

that  “if  the  petitioner  cannot  prove  the  underlying  claim  of  trial  counsel 

ineffectiveness,  then  petitioner’s  derivative  claim  of  appellate  counsel 

ineffectiveness of necessity must fail”). Likewise, Plummer’s claim that PCRA 

counsel was ineffective for failing to obtain affidavits is also without merit, as 

trial and appellate counsel were not ineffective. See id. 

Next,  Plummer  argues  that  trial  counsel  was  ineffective  for  failing  to 

suppress the cell phone seized from his jail cell, and the information obtained 

from  the  phone.  See  Appellant’s  Brief  at  14-15,  16;  see  also  Appellant’s 

Supplemental Brief at 34-35. Plummer claims  the search of his jail cell  was 

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conducted without a warrant and in violation of his Fourth Amendment rights. 

See Appellant’s Brief at 15. Plummer therefore contends that the contents of 

his phone is also subject to suppression. See id.  

The PCRA court focused on Plummer’s status as a prisoner in concluding 

trial counsel was not ineffective: 

[Plummer]  was  incarcerated  at  Curran-Fromhold  Correctional 
Facility  (“CFCF”)  at  the  time  he  used  an  illegal  cell  phone  to 
threaten Elliot. After Elliot informed the police that [Plummer] was 
the individual who called and threatened him, the police requested 
that prison officials  search [Plummer’s]  prison cell. When  prison 
officials searched his cell, they confiscated his illegal cell phone, 
which  he  was  not  entitled  to  possess  under  any  circumstances. 
See  18  Pa.C.S.[A.]  §  5123[(c.2)].  After  correctional  officers 
turned  the  cell  phone  over  to  police  officers,  officers  obtained  a 
valid  search  warrant  and  pulled  the  call  records  from  Cricket 
Wireless. These records indicated that the phone was used to call 
Elliot four different times. … 

Plummer] has not shown that there was a reasonable basis for 
counsel  to  litigate  a  suppression  motion.  There  was  nothing 
improper  with 
law  enforcement’s  search  and  seizure  of 
[Plummer’s] cell phone and any motion to suppress it would have 
been  frivolous.  The  applicability  of  both  the  federal  and 
Commonwealth  constitutional  protections  against  unreasonable 
search  and  seizure  to  prisoners  is  limited.  Commonwealth  v. 
Moore, 928 A.2d 1092, 1099 (Pa. Super. 2007) (citing Hudson 
v.  Palmer,  468  U.S.  517  (1984)).  Additionally,  an  incarcerated 
individual  has  a  limited  right  to  privacy  while  in  prison.  Moore, 
928 A.2d [at 1102] …; DeBlasio v. Pignoli, 918 A.2d 822 (Pa. 
[Cmwlth].  2007)  ….  Courts  have  consistently  upheld  these 
limitations on a prisoner’s right to privacy because of the need to 
ensure  the  safety  and  operational  function  of  the  prison. 
Commonwealth  v.  Boyd,  580  A.2d  393,  394  (Pa.  [Super.] 
1990). 

rison  officials’  search  of  [Plummer’s]  prison  cell  was  justified 
because  of  the  need  to  ensure  the  safety  and  function  of  the 
prison.  Police  officers  gave  prison  officials  credible  information 
that [Plummer] possessed an illegal cell phone and was using it to 

  [

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threaten another  individual. Because  “society is  not prepared to 
recognize as legitimate any subjective expectation of privacy that 
a prisoner might have in his prison cell,” trial counsel had no basis 
to litigate a suppression motion, and the claim fails. See Hudson, 
468 U.S. at 517 …. 

Plummer] claims that counsel failed to present evidence that he 
was incarcerated at the time when he threatened Elliot. This claim 
is belied by the record. It was clear from trial counsel’s opening 
statement and the evidence presented at trial that [Plummer] was 
incarcerated  at  CFCF  at  the  time  Elliot’s  house  was  firebombed. 
N.T.[,] 2/10/15[,] at 60. Thus, his claim fails. 

  [

 

PCRA Court Opinion, 7/8/21, at 6-8. 

We  agree  with  the  sound  reasoning  of  the  PCRA  court.  See  id.;  see 

also  Commonwealth  v.  Watley,  153  A.3d  1034,  1046  (Pa.  Super.  2016) 

(finding  that  because  the  claim  that  the  evidence  should  have  been 

suppressed was without merit, counsel was not ineffective for failing to file a 

motion  to  suppress).  Therefore,  Plummer’s  ineffectiveness  claim  is  without 

merit.2 

entirety is as follows: 

Plummer also contends trial counsel was ineffective for failing to obtain 

exculpatory  evidence.  See  Appellant’s  Brief  at  16.  Plummer’s  claim  in  its 

Trial  counsel’s  failure  to  investigate  or  interview  potential 
corroborating  witness  Desean  Dobbins  who  was  cell  mates  with 
[Plummer]  at  the  time  of  these  calls  to  uncover  exculpatory 
evidence that would have supported [Plummer’s] trial testimony. 
United States v. Gray, 878 F.2d 702 (3rd Cir. 1989)[.] See also 

____________________________________________ 

2 Plummer also raised a claim that PCRA counsel was ineffective for failing to 
raise this claim. See Appellant’s Supplemental Brief at 34. However, as noted 
below, he fails to provide any pertinent analysis to support his ineffectiveness 
claim in this regard. See Pa.R.A.P. 2119(a). Accordingly, this claim is waived. 

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Commonwealth  v.  Mabie,  359  A.2d  369,  374  (Pa.  1976). 
Counsel’s actions had no reasonable basis and prejudice resulted 
from  counsel’s  failure  to  investigate,  interview  potential  witness 
Desean Dobbins, had trial counsel done so, Desean Dobbins would 
have been called to [testify] in-order to corroborate [Plummer’s] 
trial testimony.  

J-S40007-22 
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d. 

  I

While recognizing that this Court can liberally construe a  pro se brief, 

we  conclude  that  Plummer’s  argument  is  woefully  inadequate.  See 

Commonwealth v. Ray, 134 A.3d 1109, 1114-15 (Pa. Super. 2016) (stating 

that  “a  pro  se  litigant  must  still  comply  with  the  Pennsylvania  Rules  of 

Appellate  Procedure.”  (citation  omitted)).  Plummer  merely  provides 

conclusory statements that counsel was ineffective without indicating whether 

Dobbins was available to testify on his behalf or the contents of his alleged 

corroborative  statements.  See  Commonwealth  v.  Spotz,  896  A.2d  1191, 

1250  (Pa.  2006)  (“[B]oilerplate,  undeveloped”  arguments  regarding 

ineffective assistance of counsel are “insufficient to establish an entitlement 

to post-conviction relief.” (citation omitted)). Therefore, Plummer waived this 

claim. See Commonwealth v. Paddy, 15 A.3d 431, 444 (Pa. 2011) (stating 

that when an appellant fails “to set forth all three prongs of the ineffectiveness 

test and [to] meaningfully discuss them, he is not entitled to relief, and we 

are constrained to find such claims waived for lack of development”) (citation 

omitted)). 

Plummer also contends that trial and appellate counsel were ineffective 

for failing to challenge the evidence obtained from the cell phone, because it 

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was not properly authenticated and  was unreliable. See Appellant’s Brief at 

16-17.  However,  Plummer  fails  to  meaningfully  discuss  the  three  prongs  of 

the ineffectiveness test; therefore, we conclude that this claim is also waived. 

See Paddy, 15 A.3d at 444; Spotz, 896 A.2d at 1250. 

Next,  Plummer  baldly  argues  that  “[t]rial  counsel  provided  ineffective 

assistance  where  he  failed  to  demand  reciprocal  discovery  regarding  any 

negative  character  evidence  during  appellant’s  trial  testimony.”  Appellant’s 

Brief at 17. Again, Plummer has not provided any other argument and does 

not  meaningfully  discuss  the  three  prongs  of  the  ineffectiveness  test;  as  a 

result, the claim is waived. See Paddy, 15 A.3d at 444; Spotz, 896 A.2d at 

1250.  

Additionally,  Plummer  asserts  that  the  PCRA  court  erred  in  failing  to 

order him to file a concise statement so that it could address his numerous 

ineffective assistance of PCRA counsel claims in an opinion.  See Appellant’s 

Brief  at  17-18.  According  to  Plummer,  the  PCRA  court  did  not  discharge  its 

duty to address all of his claims. See id. at 18.  

Here, Plummer supports his argument by citing to case law related to 

counsel’s  withdrawal  from  PCRA  representation  under  Turner/Finley, 

claiming that the PCRA court must conduct an independent examination of the 

record. Such an argument does not in any way establish that the PCRA court 

did not address all of his pro se claims in this case or that the PCRA court had 

a legal duty to order the filing of a Pa.R.A.P. 1925(b) concise statement. In 

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fact, Plummer neglects to acknowledge that Rule 1925(a) opinions are merely 

advisory  and  are  issued  for  the  benefit  of  appellate  review.  See  Youst  v. 

Keck’s Food Serv., Inc., 94 A.3d 1057, 1075 (Pa. Super. 2014); see also 

Commonwealth v. Lobiondo, 462 A.2d 662, 665 n.4 (Pa. 1983) (noting that 

a  trial  court’s  Rule  1925(a)  opinion  “is  intended  as  an  aid  to  the  reviewing 

appellate  court  and  cannot  alter  a  previously  entered  verdict”).  Because 

Plummer fails to demonstrate that the PCRA court did not consider his claims 

prior to dismissing his petition, he is not entitled to relief on this claim.3 

We  now  turn  to  Plummer’s  supplemental  brief,  in  which  he  raises  22 

claims relating to PCRA counsel’s ineffectiveness. As a preliminary matter, our 

Supreme Court recently held that the proper procedure for enforcing the right 

to  effective  PCRA  counsel  is  by  “allowing  a  petitioner  to  raise  claims  of 

ineffective PCRA counsel at the first opportunity [(after obtaining new counsel 

or acting pro se)], even if on appeal.” Commonwealth v. Bradley, 261 A.3d 

381, 405 (Pa. 2021).  

to  allow 

In some instances,  the record before the appellate court  will  be 
for  disposition  of  any  newly-raised 
sufficient 
ineffectiveness  claims.  However,  in  other  cases,  the  appellate 
court  may  need  to  remand  to  the  PCRA  court  for  further 
development of the record and for the PCRA court to consider such 

____________________________________________ 

3 We additionally note that Plummer argues our Supreme Court “condemned 
the wholesale adoption of a party’s brief in lieu of filing a PCRA court opinion 
on the grounds that the independent role of the judiciary is not properly served 
absent some autonomous judicial expression of the reasons for dismissing the 
PCRA petition.” Appellant’s Brief at 18. However, Plummer cites to no portion 
of the PCRA court’s opinion wherein the PCRA court adopted a party’s brief. 
Therefore, this claim is without merit. 

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claims as an initial matter. Consistent with our prior case law, to 
advance  a  request  for  remand,  a  petition  would  be  required  to 
provide more than mere boilerplate assertions of PCRA counsel’s 
ineffectiveness; however, where there are material facts at issue 
concerning claims challenging counsel’s stewardship and relief is 
not plainly unavailable as a matter of law, the remand should be 
afforded.  
 

Id. at 402 (citations, brackets, and quotation marks omitted). In other words, 

“appellate courts will have the ability to grant or deny relief on straightforward 

claims, as well as the power to remand to the PCRA court for the development 

of the record.” Id. at 403.  

We  acknowledge  that  Plummer  timely  raised  his  PCRA  counsel’s 

ineffectiveness  claims  in  his  PCRA  petitions  upon  remand  by  this  Court. 

However, Plummer is not entitled to relief on these claims or further remand 

to  develop  the  record.  Indeed,  for  his  claims  labeled  A  through  T  and  V, 

Plummer merely raises bald allegations of PCRA counsel’s ineffectiveness for 

failing  to  raise  multiple  claims,  and  mostly  cites  to  case  law  regarding  the 

general standards applicable to an ineffectiveness assistance of counsel claim 

without  any  further  analysis  establishing  ineffectiveness  based  upon  the 

discrete claims. See Supplemental  Appellant’s Brief at  10-48, 51; see also 

Pa.R.A.P.  2119(a)  (noting  that  an  argument  must  include  a  pertinent 

discussion  and  citation  to  authorities).  To  that  end,  Plummer  has  failed  to 

satisfy any of the three prongs  of the  ineffectiveness  test for each counsel, 

which requires a rejection of his claim. See Chmiel, 30 A.3d at 1128; Spotz, 

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896  A.2d  at  1250.4  Accordingly,  based  upon  this  argument  and  record,  we 

conclude  that  Plummer’s  PCRA  counsel  ineffectiveness  claims  are  without 

merit. See Bradley, 261 A.3d at 402 (noting that  boilerplate allegations of 

ineffectiveness do not entitle a petitioner to relief); see also Commonwealth 

v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020) (stating that this Court will 

not act as counsel or develop arguments for appellant, and that raising issues 

without analysis or citation to pertinent authority precludes appellate review 

of the claim). 

For  his  claim  at  U  in  the  supplemental  brief,  Plummer  contends  that 

PCRA counsel rendered ineffective assistance of counsel by not asserting trial 

counsel’s ineffectiveness in failing to object to inflammatory comments by the 

prosecution during closing argument.  See Appellant’s Supplemental Brief at 

48-50. Plummer argues that the prosecution made a joke about his disability. 

See id.  at  48  (citing  N.T.,  2/11/15,  at  143  (“I  don’t  think  he  can’t  walk  as 

much as he wants you to think as he sort of stumbles his way up to the chair, 

but he probably can’t run.”)). According to Plummer, the central issue for the 

jury to decide was the credibility of the witnesses, and prosecutor’s statement 

influenced the jury. See id. at 49-50. Plummer also claims that there was no 

____________________________________________ 

4 We additionally note that Plummer’s claims J, R, T, and V in his supplemental 
appellate brief merely incorporate prior sections of his argument, and he does 
not articulate any new assertions. See Commonwealth v. Briggs, 12 A.3d 
291,  342  (Pa.  2011)  (stating  that  the  appellate  rules  do  not  allow 
incorporation by reference  arguments  and  it  “is  an  unacceptable  manner  of 
appellate advocacy for the proper presentation of a claim for relief”). 

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reasonable basis for either counsel’s failure to raise the issue, and that he was 

prejudiced by the failure to object to the statement. See id. at 50. 

A  prosecutor’s  arguments  to  the  jury  are  generally  not  a 
basis for the granting of a new trial unless the unavoidable effect 
of such comments would be to prejudice the jury, forming in their 
minds  fixed  bias  and  hostility  towards  the  accused  which  would 
prevent them from properly weighing the evidence and rendering 
a true verdict. 

  prosecutor  must  have  reasonable  latitude  in  fairly 
presenting  a  case  to  the  jury  and  must  be  free  to  present  [] 
arguments  with  logical  force  and  vigor.  The  prosecutor  is  also 
permitted  to  respond  to  defense  arguments.  Finally,  in  order  to 
evaluate whether the comments were improper, we do not look at 
the comments in a vacuum; rather we must look at them in the 
context in which they were made. 

  A

 

Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) (citation 

and brackets omitted). 

Here, the prosecutor made the statement in the context of the facts of 

the  case,  noting  that  Plummer  stopped  chasing  Elliot  and  allowed  his  two 

cohorts  to  chase  Elliot  because  Plummer  cannot  run.  See N.T.,  2/11/15,  at 

143. Importantly, the prosecutor emphasized that Plummer admitted that he 

could not run. See id. The statement cited by Plummer does not in any way 

indicate that the prosecutor was joking about Plummer’s disability. Therefore, 

the contested statement was proper in the context of the evidence of the case 

and Plummer’s claim that trial counsel was ineffective does not have arguable 

merit.  See  Solomon,  25  A.3d  at  383.  Likewise,  Plummer  fails  to  establish 

that this single statement prejudiced him where the evidence established that 

as  Elliot  approached  the  vehicle  in  question,  Plummer  and  two  other  men 

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jumped out from behind some nearby bushes and confronted Elliot; the two 

men, but not Plummer, chased Elliot across the street before they were able 

to catch him and take the car keys from him; and Plummer drove the car away 

from  the  scene.  In  light  of  the  foregoing,  Plummer’s  ineffectiveness  claims 

regarding trial and PCRA counsel are without merit. See Chmiel, 30 A.3d at 

In summary, we conclude all of Plummer’s claims of PCRA court error 

are either meritless or waived. We therefore affirm the orders dismissing his 

amended PCRA petition. 

Orders affirmed. 

Judgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/16/2023 

1128. 

 

 

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  D

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