waived claim in Pennsylvania

2025See Smith, 151 A.3d at 1103 ; Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa.Super. 2008) (explaining that pursuing a waived claim on direct appeal is frivolous).

2025See Commonwealth - 21 - J-S38026-24 v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding that a waived claim is definitionally frivolous).

2022See Commonwealth v. Spotz, 18 A.3d 244, 278 (Pa. 2011) (holding “[t]here is no merit to [a] claim that appellate counsel was ineffective for failing to raise, on direct appeal, a waived claim of trial court error related to [a] prosecutor’s comments”).

2021See Commonwealth v. Spotz, 18 A.3d 244, 278 (Pa. 2011) (“There is no merit to [a] claim that appellate counsel was ineffective for failing to raise, on direct appeal, a waived claim of trial court error . . . .”). - 10 - J-S40045-20 2008 incident and the instant case are distinguishable on certain facts, trial counsel did not forfeit Appellant’s option for reversal on appeal given the deferential appellate standard applied to evidentiary determinations.

2007See D'Amato, 856 A.2d at 812 .

2007See D'Amato, 856 A.2d at 812 .

2024Id. at 1014 (citation omitted); see also Commonwealth v. Hackman, 623 A.2d 350 , 351 (Pa. Super. 1993) (citing Byrd for the proposition, “we may ____________________________________________ offenses, and any defense upon which the jury has been instructed.” Pa.R.Crim.P. 646(B). -7- J-A29035-23 consider a waived claim lest it return to the court in the form of an ineffective assistance of counsel claim.”).

2024Citing Byrd, we noted that “[m]oreover, we may consider a waived claim lest it return to the court in the form of an ineffective assistance of counsel claim.” Hackman, 623 A.2d at 351 .

2014See Commonwealth v. Padilla [— Pa.-] 80 A.3d 1238, 1272 (Pa.2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(S)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneou

2014See Commonwealth v. Padilla [— Pa.-] 80 A.3d 1238, 1272 (Pa.2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(S)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneou

2026Since it would be frivolous to raise a waived claim on appeal, we agree with counsel that this issue cannot support the present appeal.1 See Commonwealth v. Cook, 175 A.3d 345, 350 (Pa.Super. 2017).

2025Pro Se Response Wellman has filed a pro se response to the Anders brief, but as we find there are non-frivolous issues that counsel must address, we may not address the response. “[I]n the specific context of Anders, the United States Supreme Court has declared that, if a court determines that non-frivolous issues remain in an appeal, it must afford an indigent defendant the assistance of counsel prior to decision.” Commonwealth v. Orellana, 86 A.3d 877 , 882 n.7 (Pa. Super. 2014) (emphasis in original); see also Commonwealth v. Cook, 175 A.3d 345, 351 (Pa. Super. 2017) (reviewing pro se respo

2021See Commonwealth v. Spotz, 18 A.3d 244, 278, 281 (Pa. 2011); accord Weaver, 137 S. Ct. at ____________________________________________ 14 This Court may apply federal precedent to the prejudice inquiry.

2021See Commonwealth v. Spotz, 18 A.3d 244, 278, 281 (Pa. 2011); accord Weaver, 137 S. Ct. at ____________________________________________ 10 This Court may apply federal precedent to the prejudice inquiry.

2014See Commonwealth v. Padilla [— Pa.-] 80 A.3d 1238, 1272 (Pa.2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(S)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneou

2013See Commonwealth v. Padilla, — Pa. -, 80 A.3d 1238, 1272 (2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); 17 Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(3)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneo

2014See Commonwealth v. Hackett, 598 Pa. 350 , 956 A.2d 978, 989-91 (2008) (Castille, C.J., concurring, joined by Eakin and McCaffery, JJ.), cert. denied, Hackett v. Pennsylvania, 556 U.S. 1285 , 129 S.Ct. 2772 , 174 L.Ed.2d 277 (2009). .

2014See Commonwealth v. Hackett, 598 Pa. 350 , 956 A.2d 978, 989-91 (2008) (Castille, C.J., concurring, joined by Eakin and McCaffery, JJ.), cert. denied, Hackett v. Pennsylvania, 556 U.S. 1285 , 129 S.Ct. 2772 , 174 L.Ed.2d 277 (2009). .

2014See Commonwealth v. Padilla [— Pa.-] 80 A.3d 1238, 1272 (Pa.2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(S)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneou

2014See Commonwealth v. Padilla [— Pa.-] 80 A.3d 1238, 1272 (Pa.2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(S)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneou

2014See Commonwealth v. Padilla [— Pa.-] 80 A.3d 1238, 1272 (Pa.2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(S)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneou

2013See Commonwealth v. Padilla, — Pa. -, 80 A.3d 1238, 1272 (2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); 17 Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(3)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneo

2004See, e.g., Commonwealth v. (Aaron) Jones, 571 Pa. 112 , 811 A.2d 994, 1005 (2002); Commonwealth v. Rollins, 558 Pa. 532 , 738 A.2d 435, 451 (1999).

2004See Commonwealth v. Bond, 572 Pa. 588, 601 , 819 A.2d 33, 40 (2002); Commonwealth v. Jones, 571 Pa. 112, 127 , 811 A.2d 994, 1003 (2002).

1997See, e.g., Commonwealth v. Hackman, 424 Pa.Super. 526, 529 , 623 A.2d 350, 351 (1993); Commonwealth v. Byrd, 409 Pa.Super. 611, 613-16 , 598 A.2d 1011, 1012-14 (1991); accord Commonwealth v. Widmer, — Pa. —, 689 A.2d 211 (1997) (although Widmer failed to file post-sentence motion, Court overlooked technical waiver of weight of the evidence claim where trial court addressed it, found it meritorious but lacked jurisdiction to act upon it).

1997See, e.g., Commonwealth v. Hackman, 424 Pa.Super. 526, 529 , 623 A.2d 350, 351 (1993); Commonwealth v. Byrd, 409 Pa.Super. 611, 613-16 , 598 A.2d 1011, 1012-14 (1991); accord Commonwealth v. Widmer, — Pa. —, 689 A.2d 211 (1997) (although Widmer failed to file post-sentence motion, Court overlooked technical waiver of weight of the evidence claim where trial court addressed it, found it meritorious but lacked jurisdiction to act upon it).

2014See Commonwealth v. Padilla [— Pa.-] 80 A.3d 1238, 1272 (Pa.2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(S)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneou

2014See Commonwealth v. Padilla [— Pa.-] 80 A.3d 1238, 1272 (Pa.2013) (declining to invoke this Court’s Section 9711(h)(3)(i) statutory review of death sentences to address the defendant’s challenge to an aggravating circumstance to which the defendant had stipulated at trial because the issue was waived and could only be pursued on collateral review as an ineffective assistance of counsel claim); Commonwealth v. May, 612 Pa. 505 , 31 A.3d 668, 675 (2011) (refusing to invoke Section 9711(h)(S)(i) statutory review to address waived penalty phase claims alleging prosecutorial misconduct and erroneou

2024See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011); see also Commonwealth v. Smith, 213 A.3d 307, 309 (Pa. Super. 2019) (“where an appellant includes an issue in his Pa.R.A.P. 1925(b) statement, such inclusion does not ‘resurrect’ a waived claim.”) (citation omitted).

2021Id. (citation omitted).

2004See, e.g., Commonwealth v. (Aaron) Jones, 571 Pa. 112 , 811 A.2d 994, 1005 (2002); Commonwealth v. Rollins, 558 Pa. 532 , 738 A.2d 435, 451 (1999).

2004See Commonwealth v. Bond, 572 Pa. 588, 601 , 819 A.2d 33, 40 (2002); Commonwealth v. Jones, 571 Pa. 112, 127 , 811 A.2d 994, 1003 (2002).

1954See also Commonwealth v. Gill, supra, at page 226.

1952The reasoning of the Superior Court in Commonwealth v. Gill, 166 Pa. Superior Ct. 223 on this subject is persuasive and should be followed, notwithstanding that the exact question here presented was not involved in that case inasmuch as the matter was before the court on a waived hearing rather than on certiorari.

2026See Butler v. Illes, 747 A.2d 943, 944 (Pa. Super. 2000) (stating, “[w]hen issues are not properly raised and developed in briefs, when briefs are wholly inadequate to present specific issues for review, [this] court will not consider the merits thereof”). 7.

2025Commonwealth v. Duffey, 855 A.2d 764, 769 (Pa. 2004).

2025See Smith, 151 A.3d at 1103 ; Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa.Super. 2008) (explaining that pursuing a waived claim on direct appeal is frivolous).

2024See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011); see also Commonwealth v. Smith, 213 A.3d 307, 309 (Pa. Super. 2019) (“where an appellant includes an issue in his Pa.R.A.P. 1925(b) statement, such inclusion does not ‘resurrect’ a waived claim.”) (citation omitted).

2024Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (finding that counsel cannot be deemed ineffective for failing to raise a meritless claim).

2022Commonwealth v. Tedford, 960 A.2d 1, 16 (Pa. 2008). -9- J-A04029-22 Finally, for claims of appellate counsel ineffectiveness, a petitioner must still prove each of the three underlying elements of the Strickland test.

2022See Krentz, 910 A.2d at 37 ; Lineberger, 894 A.2d at 149 .6 Order affirmed. ____________________________________________ (providing that “[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby”). 5 The fact that the trial court addressed and rejected Appellants’ Nanty-Glo argument in its Rule 1925(a) opinion does not operate to resuscitate the waived claim.

2022See Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (holding that the failure to properly preserve a claim will result in waiver, even if the trial court addresses the issue in its Rule Pa.R.A.P. 1925(a) opinion). 6 Even if Appellants had not waived their Nanty-Glo issue, it patently lacks merit.