Com. v. Bronner, J. ( 2018 )


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  • J-S33015-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JAZS BRONNER                               :
    :
    Appellant               :   No. 87 EDA 2018
    Appeal from the PCRA Order November 28, 2017
    In the Court of Common Pleas of Bucks County
    Criminal Division at No(s): CP-09-CR-0003294-2014
    BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.
    MEMORANDUM BY OTT, J.:                                FILED OCTOBER 10, 2018
    Jazs Bronner appeals from the order of the Court of Common Pleas of
    Bucks County, entered November 28, 2017, that denied his first petition filed
    under the Post Conviction Relief Act (“PCRA”).1 In this timely appeal, Bronner
    claims the PCRA court erred in finding counsel was not ineffective for failing
    to request the jury be supplied with written instructions on justification. As
    that issue was not raised in his amended PCRA petition, it is waived.
    Accordingly, we affirm the order denying Bronner relief.
    ____________________________________________
       Former Justice specially assigned to the Superior Court.
    1   42 Pa.C.S. §§ 9541–9546.
    J-S33015-18
    In its opinion, the PCRA court fully and correctly set forth the relevant
    facts and procedural history of this case. See PCRA Court Opinion, 2/1/2018,
    at 1-5. We summarize the facts as follows:
    On March 31, 2014, Bronner murdered his father with a dumbbell.
    Bronner repeatedly told police that his father had fallen and hit his head once
    on the dumbbell, but an autopsy revealed that Bronner’s father had sustained
    multiple injuries. A blood splatter expert testified that the blood at the scene
    was consistent with two blows, not just one, and that the blood splatter was
    above the height for a person falling and hitting his head on the dumbbell.
    During deliberations, the jury requested “the instructions as to first,
    third, voluntary and involuntary manslaughter” and “the definition of . . .
    passion[.]”    N.T., 5/6/2015, at 167., see also Ex. Ct.-5.       The trial court
    provided written instructions for murder of the first degree, murder of the
    third degree, voluntary manslaughter, and involuntary manslaughter but did
    not provide a separate definition of “passion.” Id. Trial counsel did not object
    to the jury being provided with written copies of these instructions nor did she
    request that the jury be provided with the written instructions for justification.
    See id.
    On May 6, 2015, the jury convicted Bronner of murder of the third
    degree and possessing instruments of crime.2 After sentencing, Bronner filed
    ____________________________________________
    2   18 Pa.C.S. §§ 2501(a) and 907(a), respectively.
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    J-S33015-18
    a timely post-sentence motion, which the trial court denied on October 15,
    2015.
    On November 10, 2015, [Bronner] filed a Notice of Appeal to the
    Superior Court of Pennsylvania from th[e trial c]ourt’s denial of
    his Motion. On August 9, 2016, the Superior Court affirmed the
    Order of Sentence. [See Commonwealth v. Bronner, 
    156 A.3d 330
     (Pa. Super. 2016) (unpublished memorandum).]              On
    September 9, 2016 [Bronner] filed a Petition for Allowance of
    Appeal to the Supreme Court of Pennsylvania, which the Supreme
    Court denied on December 27, 2016. [See Commonwealth v.
    Bronner, 
    164 A.3d 475
     (Pa. 2016).]
    On December 21, 2016, [Bronner] filed a pro se Petition for Post
    Conviction Relief. On March 1, 2017, the [PCRA c]ourt appointed
    Blake Jackman, Esquire, as PCRA counsel for [Bronner and
    ordered PCRA counsel to file an amended PCRA petition]. On
    June 12, 2017, [Bronner] filed an Amended PCRA Petition[.]
    PCRA Court Opinion, 2/1/2018, at 4.         The amended petition asserted trial
    counsel’s ineffectiveness on multiple grounds; the only ground relating to
    written jury instructions was that trial counsel “failed to object where the court
    committed a reversible error by providing the jury with written instructions.”
    Am. PCRA Pet., 6/12/2017, at 5 ¶ 28.a. It continued:
    i.    Following a question by the jury, the [t]rial [c]ourt provided
    the jury with written instructions.
    ii.   In Commonwealth v. Oleynik, 
    568 A.2d 1238
     (Pa. 1990),
    the Superior Court of Pennsylvania found the submission of
    written instructions to the jury reversible error, due to the undue
    emphasis on portions of the charge, which potentially undermines
    the integrity of the deliberative process.
    iii.  In Commonwealth v. Karaffa, [
    709 A.2d 887
     (Pa. 1998),]
    the Court found trial counsel ineffective for failing to object to the
    use of written instructions.
    Id. at ¶ 28.a.i.-iii. (some formatting).
    -3-
    J-S33015-18
    An affidavit from trial counsel was attached to the amended PCRA
    petition. In it, trial counsel summarized each issue raised in the amended
    PCRA petition, including the allegation that she “failed to object where the
    court committed reversible error by providing the jury with written instructions
    during deliberations[.]” Am. PCRA Pet., 6/12/2017, Ex. A, at 2.3
    Following an evidentiary hearing on October 4, 2017, the PCRA court
    permitted the parties to submit briefs. In his brief, Bronner altered his claim.
    In his amended PCRA petition, Bronner had pleaded that no written
    instructions should have been provided to the jury and that trial counsel was
    ineffective for failing to do anything to try to prevent the jury from receiving
    any written instructions. Am. PCRA Pet., 6/12/2017, at 5 ¶ 28.a. In his post-
    hearing brief, Bronner changed his claim to contend that he had no
    disagreement with the jury receiving written instructions on the elements of
    the criminal homicide charges but, instead, that trial counsel should have
    objected to the jury receiving written instructions on the elements of the
    criminal homicide crimes without also receiving written instructions on
    justification or self-defense. Br. in Supp. of PCRA, 11/8/2017, at 4,4 citing
    Pa.R.Crim.P. 646(B).5
    ____________________________________________
    3   Trial counsel’s affidavit is not paginated.
    4   Bronner’s brief in support of PCRA is not paginated.
    5 This new challenge was not pleaded in the alternative – e.g., there is no
    suggestion that Bronner was still alleging that no written instructions should
    -4-
    J-S33015-18
    On November 28, 2017, the PCRA court denied the PCRA petition. This
    appeal followed.6
    Bronner raises the following issue for our review:
    Whether the [PCRA] court erred by denying [Bronner]’s petition
    for post conviction relief, where trial counsel[] rendered
    ineffective assistance of counsel that under the circumstances of
    this case so undermined the truth-determining process that no
    reliable adjudication of guilt or innocence could have taken place,
    by failing to object at trial to the jury being provided written jury
    instructions as to first-degree murder, third-degree murder,
    voluntary manslaughter, and involuntary manslaughter, without
    also being provided the written instructions for justification.
    Bronner’s Brief at 4.
    In reviewing an appeal from the denial of PCRA relief, “this Court is
    limited to ascertaining whether the evidence supports the determination of
    the PCRA court and whether the ruling is free of legal error.” Commonwealth
    v. Andrews, 
    158 A.3d 1260
    , 1263 (Pa. Super. 2017) (citation omitted).
    Bronner contends that the trial court erred by denying his PCRA petition,
    because his trial counsel was ineffective. Bronner’s Brief at 10. He continues
    that trial counsel failed to object to the jury being provided with written
    instructions on the elements of murder of the first degree, murder of the third
    ____________________________________________
    have been provided to the jury but, if they were provided, they should have
    included the justification instruction. See Br. in Supp. of PCRA, 11/8/2017,
    at 4. The brief only alleged that trial counsel was ineffective for failing to
    address the lack of a written instruction on justification.
    6  On January 24, 2018, the PCRA court ordered Bronner to file a concise
    statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
    and Bronner complied on January 30, 2018. On February 1, 2018, the PCRA
    court filed an opinion pursuant to Pa.R.A.P. 1925(a).
    -5-
    J-S33015-18
    degree, voluntary manslaughter, and involuntary manslaughter without also
    being provided with a written jury instruction about justification.       
    Id.
       He
    argues that trial counsel’s failure to object “so undermined the truth-
    determining process that no reliable adjudication of guilt or innocence could
    have taken place.” 
    Id.
     He adds that his “constitutional right to due process
    and effective assistance of Counsel under the Fifth, Sixth and Fourteenth
    Amendments to the United States Constitution and parallel provisions of the
    Constitution of the Commonwealth were violated in this case.” 
    Id.
    Preliminarily, we note that Bronner’s amended PCRA petition did not
    allege trial counsel’s failure to request a written instruction on justification or
    to object to the trial court’s failure to include such an instruction constituted
    ineffective assistance of counsel. Instead of pleading that trial counsel should
    have requested an additional written jury instruction on justification, the
    amended PCRA petition alleged that trial counsel was ineffective for failing to
    object to the trial court providing the jury with any written jury instructions.
    Am. PCRA Pet., 6/12/2017, at ¶ 28a.
    “[A] claim not raised in a PCRA petition cannot be raised for the first
    time on appeal. . . . [P]ermitting a PCRA petitioner to append new claims to
    the appeal already on review would wrongly subvert the time limitation and
    serial petition restrictions of the PCRA.” Commonwealth v. Santiago, 
    855 A.2d 682
    , 691 (Pa. 2004) (emphasis added) (citation omitted); accord
    Commonwealth v. Reid, 
    99 A.3d 470
    , 494 (Pa. 2014). As Bronner’s claim
    changed from his amended PCRA petition wanting no written jury instructions
    -6-
    J-S33015-18
    to his brief to this Court wanting more written jury instructions, his sole claim
    on appeal is waived.
    Additionally, the inclusion of the claim that trial counsel was ineffective
    for failing to address the lack of a written instruction on justification in the
    brief Bronner filed in the PCRA court after the evidentiary hearing does not
    preserve this issue for our review. In order to raise additional or novel claims
    of trial counsel’s ineffectiveness, the PCRA court must grant the petitioner
    leave to amend his petition. See Commonwealth v. Rykard, 
    55 A.3d 1177
    ,
    1192 (Pa. Super. 2014). Here, like the defendant in Rykard, Bronner neither
    sought nor was granted leave to amend his petition to include the claim that
    trial counsel was ineffective for failing to object the lack of or to request the
    addition of a written jury instruction on justification. See 
    id.
     Accordingly,
    Bronner is not entitled to relief.
    Assuming Bronner had preserved his challenge, we would still conclude
    that his claim merits no relief.     Although the PCRA court also holds that
    Bronner’s “alleged error” was waived, PCRA Court Opinion, 2/1/2018, at 5, it
    still provided an analysis “if [it] were to consider [Bronner]’s claim on the
    merits,” which comprehensively discusses and properly disposes of that
    question. (Finding:    Bronner failed to demonstrate that he suffered any
    prejudice as a result of his trial counsel’s failure to request a written jury
    instruction on self-defense; Bronner failed to establish how there could have
    been a reasonable probability that, but for his counsel’s failure to object to
    the lack of a justification instruction, he would have been convicted of
    -7-
    J-S33015-18
    voluntary manslaughter instead of murder of the third degree; the evidence
    did not show any basis for self-defense, as Bronner had previously only
    contended that his father’s death was accidental); see also Andrews, 158
    A.3d at 1263 (prejudice, “to the effect that there was a reasonable probability
    of a different outcome if not for counsel’s error,” is a required element to find
    ineffective assistance of counsel). See id. at 6-7.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/10/18
    -8-
    

Document Info

Docket Number: 87 EDA 2018

Filed Date: 10/10/2018

Precedential Status: Precedential

Modified Date: 10/11/2018