Com. v. Winters, S. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SHAWN WINTERS, : No. 1329 EDA 2017
:
Appellant :
Appeal from the PCRA Order, March 17, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006675-2009
BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 01, 2018
Shawn Winters appeals from the order of March 17, 2017, issued by
the Court of Common Pleas of Philadelphia County that dismissed his PCRA 1
petition without a hearing. After careful review, we affirm.
The factual history of this matter as recounted by the PCRA court is as
follows:
On or around February 9, 2009 Lynda Collazo (the
decedent) was shot in the head in an alley in
Philadelphia. According to the decedent’s partner, at
the time of the murder [appellant] was the
decedent’s drug supplier. On the night of the
murder, [appellant] called the decedent to set up a
drug deal, and picked her up from her house.
Instead of dealing with the decedent directly and at
her home as he had done before, [appellant] was to
facilitate a drug deal in a remote location between
the decedent and a third party whom she had never
1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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met. [Appellant] then took her to the 400 block of
West Abbotsford Street, Philadelphia.
Matthew Burse was already in the vicinity. Burse
testified that he also expected to purchase marijuana
from [appellant] that evening, and did not serve as
[appellant’s] connection to the unknown third-party
drug dealer, as [appellant] asserted. Burse testified
that [appellant] instructed him to wait in his own
vehicle nearby as [appellant] and the victim went
into the alley to retrieve the marijuana. After he saw
[appellant] and the victim enter the alley, he heard
gunshots and witnessed [appellant] running out of
the alley. [Appellant’s] cell phone was found in the
alley, 20 feet from the decedent’s body, and, at trial,
[appellant] admitted that he fled the scene
immediately after the shooting. Burse testified
[appellant] told him a few days later that he,
[appellant] had shot the victim.
Trial court opinion, 8/4/17 at 2-3 (citations to record omitted).
The trial court also set forth the following procedural history:
On July 21, 2010, following a capital jury trial before
this Court, [appellant] was found guilty of murder of
the first degree (H-1).[2] On July 22 and 26, 2010,
after a penalty phase hearing, the jury found that
there were two aggravating circumstances and one
mitigating circumstance, and that the aggravating
circumstances did not outweigh the mitigating
circumstance, and that therefore [appellant] should
receive a sentence of life imprisonment. On that
same day, this Court sentenced [appellant] to life
imprisonment without parole.
On July 30, 2010, [appellant] filed post-sentence
motions, which were denied by this Court on
November 24, 2010. [Appellant] filed a timely notice
of appeal on December 23, 2010. On April 30, 2012,
Superior Court affirmed the judgment of
sentence.[Footnote 6] On August 28, 2012, our
2 18 Pa.C.S.A. § 2502(a).
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Supreme Court denied [appellant’s] petition for
allowance of appeal.[Footnote 7].
[Footnote 6] Commonwealth v.
Winters, 3[48]9 EDA 2010, slip op.
(Pa.Super. Apr. 30, 2012) (memorandum
opinion).
[Footnote 7] Commonwealth v.
Winters, 265 EAL 2012, slip op. (Pa.
Aug. 28, 2012).
On October 16, 2013, [appellant] filed a timely
pro se PCRA petition. Counsel was appointed,
entering his appearance on August 14, 2014. On
June 12, 2016, counsel filed an amended PCRA
petition (Amended Petition). On September 2, 2016,
the Commonwealth responded to the Amended
Petition with a Motion to Dismiss. After reviewing
the pleadings, on February 1, 2017, this Court sent
[appellant] notice of its intent to deny and dismiss
his claim without a hearing pursuant to
Pa.R.Crim.P. 907 (907 Notice). A response to this
Court’s 907 Notice was filed February 15, 2017, and,
after reviewing it, this Court nevertheless dismissed
[appellant’s] petition, on March 17, 2017. This
timely appeal followed.
Trial court opinion, 8/4/17 at 1-2 (footnotes 1-5, 8, and 9 omitted).
On April 18, 2017, the trial court ordered appellant to file a statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant
complied with the order on May 8, 2017. The trial court issued its
Pa.R.A.P. 1925(a) opinion on August 4, 2017.
Appellant presents the following issues for this court’s review:
I. Did the PCRA Court err when it failed to grant
a hearing and where [appellant] properly pled,
and would have been able to prove, that trial
counsel was ineffective for having failed to
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object to the jury charge concerning
accomplice liability?
II. Did the PCRA Court err when it dismissed
without a hearing and without granting relief
where [appellant] properly pled and would
have been able to prove that he should have
been awarded a new trial as the result of
ineffective assistance of counsel when counsel
failed to request a jury instruction on “corrupt
source,” thus denying [appellant] due process
under the Pennsylvania and Federal
Constitutions?
Appellant’s brief at 3.
Initially, we recite our standard of review:
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super.2001). It is within the PCRA court’s
discretion to decline to hold a hearing if the
petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. Id.
It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
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material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Turetsky, 925 A.2d at 882, quoting Commonwealth v. Khalifah, 852
A.2d 1238, 1239-1240 (Pa.Super. 2004).
Appellant raises two claims of counsel ineffectiveness. First, he argues
that his trial counsel was ineffective because he failed to object to the jury
charge concerning accomplice liability. Second, appellant contends that his
trial counsel was ineffective because he failed to request a jury instruction
on a “corrupt source” which resulted in a denial of appellant’s right to due
process under the Pennsylvania and United States constitutions. For the
reasons discussed infra, we find that neither contention has arguable merit.
The law presumes counsel has rendered effective
assistance. Commonwealth v. Gonzalez, 858
A.2d 1219, 1222 (Pa.Super.2004), appeal denied,
582 Pa. 695, 871 A.2d 189 (2005). To establish a
claim of ineffective assistance of counsel, Appellant
must demonstrate (1) the underlying claim is of
arguable merit; (2) counsel’s action or inaction
lacked any reasonable basis designed to effectuate
Appellant’s interest; 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.
Johnson, 868 A.2d 1278, 1281 (Pa.Super.2005),
appeal denied, 583 Pa. 680, 877 A.2d 460 (2005)
(internal citations omitted); Gonzalez, supra. The
failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail.
Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651
(2003). “The threshold inquiry in ineffectiveness
claims is whether the issue/argument/tactic which
counsel has foregone and which forms the basis for
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the assertion of ineffectiveness is of arguable
merit. . . .” Commonwealth v. Pierce, 537 Pa.
514, 524, 645 A.2d 189, 194 (1994). “Counsel
cannot be found ineffective for failing to pursue a
baseless or meritless claim.” Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa.Super.2004).
Commonwealth v. Taylor, 933 A.2d 1035, 1041-1042 (Pa.Super. 2007),
appeal denied, 951 A.2d 1163 (Pa. 2008).
Initially, appellant asserts that he was prosecuted as a lone defendant,
the Commonwealth’s theory was that appellant acted alone, and neither the
Commonwealth nor appellant’s counsel introduced any evidence to the
contrary. However, the trial court chose to give the instruction regarding
accomplice liability, and appellant’s counsel failed to object, which rendered
appellant’s counsel ineffective. (Appellant’s brief at 9.)
Section 306(c) of the Crimes Code defines accomplice liability as
follows:
Accomplice defined.--A person is an accomplice of
another person in the commission of an offense if:
(1) with the intent of promoting or
facilitating the commission of the
offense, he:
(i) solicits such other person to
commit it; or
(ii) aids or agrees or attempts to
aid such other person in
planning or committing it; or
(2) his conduct is expressly declared by law
to establish his complicity.
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18 Pa.C.S.A. § 306(c).
“Accomplice liability may be established by circumstantial evidence.
Only the least degree of concert or collusion in the commission of the
offense is sufficient to sustain a finding of responsibility as an accomplice.
No agreement is required, only aid.” Commonwealth v. Mitchell, 135
A.3d 1097, 1102 (Pa. Super. 2016) (internal citations and quotations
omitted). A person’s mere presence at the crime scene by itself does not
constitute complicity. Commonwealth v. Manchas, 633 A.2d 618, 627
(Pa.Super. 1993).
Appellant argues that the trial court erred when it gave the instruction
on accomplice liability and that his trial counsel was ineffective when he
failed to object to the instruction. Appellant asserts that as there was no
factual or legal basis for the instruction, his counsel was ineffective for failing
to object to the instruction. He also argues that he suffered prejudice
because the instruction gave the jury the opportunity to find him guilty
based on a legal theory that was inapplicable and that the Commonwealth
had not pursued.
In its opinion, the trial court reasoned:
While the Commonwealth’s theory at trial asserted
that [appellant] was guilty of the victim’s murder as
the principal, evidence was also presented from
which the jury could have found that [appellant] was
instead an accomplice of another person in a plan to
kill the victim. The evidence showed that [appellant]
had called the victim on the night of her death and
drove her from her home to the scene of the
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shooting under the guise of helping her to purchase
two pounds of marijuana. [Appellant] admitted that
he facilitated the alleged drug deal between the
victim and a third party, whom neither he nor the
victim had ever met, in a remote location, instead of
dealing with the victim directly and at her home as
he had done on previous occasions. [Appellant] also
admitted that he led the victim towards the alley
where she was shot in the face multiple times at
close range. [Appellant’s] cell phone was found
20 feet from the victim’s, and [appellant] admitted
that he had immediately fled the scene after the
shooting. When initially questioned by police as to
when [appellant] had last seen the victim [appellant]
lied.
On July 20, 2010, after the defense closed its case,
the Commonwealth requested that the Court also
charge the jury on murder of the third degree and
accomplice liability based on the possibility that the
jury could accept trial counsel’s argument that
[appellant] was not the shooter, but still consider
that he was an accomplice in a plan to kill the victim.
The Court granted the Commonwealth’s request,
noting that the evidence discussed supra and trial
counsel’s defense theory, which asserted [appellant]
had not shot the victim and was not involved,
warranted charging the jury on accomplice liability.
In his petition, [appellant] argued that, due to the
fact that the jury acquitted him of the firearms
offenses, the jury must have found him guilty on a
theory of accomplice liability, and that he was
therefore prejudiced by counsel’s failure to object to
the accomplice liability instruction. As the issue of
“inconsistent verdict” has already been dismissed by
Superior Court, this Court cannot reconsider it.
Winters, 3849 EDA 2010 at 6. Superior Court also
concluded that there was sufficient evidence to
enable the jury to properly find [appellant] guilty of
first-degree murder as the principal shooter. Id. at
5-7. Additionally, [appellant] suffered no prejudice
even if he was convicted as an accomplice, as he
would be equally criminally liable, and defendants
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can be convicted as accomplices even if only charged
as principals. Commonwealth v. Potts, 566 A.2d
287, 293 (Pa.Super. 1989) (holding defendants
suffer no prejudice for being convicted as
accomplices even if Commonwealth does not initially
charge on accomplice liability)[.] As long as the
theories at trial link defendant and another in the
commission of the crime, defendant has adequate
notice, and is thus not prejudiced. Id. Here, it was
[appellant] who injected the theory of another
person into the case. Therefore, because [appellant]
did not establish that he was prejudiced when
counsel did not object to this Court’s accomplice
liability charge.
Trial court opinion, 8/4/17 at 4-6 (citations to record omitted; footnotes
omitted).
Appellant argues that there was no evidence of collusion or accomplice
liability and that if there had been, the Commonwealth would have pursued
it. Appellant asserts that the mere fact that his attorney argued that
someone else could have killed the victim is of no moment because, if
appellant did not do it, of course, somebody else did and that would not
make appellant an accomplice.
Based on the record before this court, appellant did not establish that
he suffered prejudice as the trial court specifically instructed the jurors to
only find appellant guilty as an accomplice “if he intended to bring about the
crime or to assist in bringing about the crime in some fashion.” (Notes of
testimony 7/21/10 at 148.) It is presumed that the jurors followed the
instructions of the trial court. Commonwealth v. Busanet, 54 A.3d 35, 65
(Pa. 2012). The jury would only find appellant guilty under an accomplice
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theory if his actions fit the elements of the crime. Consequently, appellant
did not establish prejudice.
However, while the Commonwealth put forth the theory that the
evidence at trial established that appellant was guilty of murder as the
principal, there was evidence presented which could lead the jury to find
that appellant was an accomplice of another person in a plan to kill the
victim. Based on the evidence presented, the jury could conclude that
appellant enticed the victim to come with him to purchase marijuana in an
alley from someone she had not met before and then that person or some
other party shot the victim. A jury could have concluded that appellant was
involved in arranging for the victim to be at the alley where someone else
could have shot her. Given these facts, it was not inappropriate for the trial
court to give the accomplice liability charge. See Commonwealth v.
Harper, 660 A.2d 596, 599 (Pa.Super. 1995) (accomplice liability instruction
was proper where Commonwealth focused on defendant as shooter but did
not expressly reject accomplice liability and witnesses testified that two
males participated in the shooting). As a result, counsel was not ineffective
for failing to object to the instruction as it was not improperly given.
Appellant next contends that appellant must be awarded a new trial as
the result of ineffective assistance of counsel when counsel failed to request
a jury instruction of “corrupt source” which denied appellant due process
under the Pennsylvania and Federal Constitutions. Appellant asserts that
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the only possible accomplice was Matthew Burse, and, if he were an
accomplice, the trial court had an obligation to charge the jury on corrupt
source.
In Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999), the
Pennsylvania Supreme Court explained a corrupt source charge:
With respect to the corrupt source charge, it is well
established that, in any case in which an accomplice
implicates the defendant, the trial court should
instruct the jury that the accomplice is a corrupt and
polluted source whose testimony should be
considered with caution. The charges indicated in
cases in which the evidence is sufficient to present a
jury question with respect to whether the
Commonwealth’s witness is an accomplice. Such a
jury question is present when the witness could be
indicted for the crime for which the accused is
charged. A person may be indicated as an
accomplice where the evidence established that he
“knowingly and voluntarily cooperated with her aides
and other in the commission of a crime” with intent
to assist the principal.
Id. at 1181 (citations omitted).
Appellant asserts that when the trial court issued a charge on
accomplice liability, the trial court should have issued a charge on corrupt
source.
The trial court explained its decision as follows:
It is well settled that whether to request additional
points for charge is one of the tactical decisions
within the exclusive province of counsel.
Commonwealth v. Derk, 719 A.2d 262, 265 (Pa.
1998), citing Commonwealth v. Sullivan, 299 A.2d
608, 610 (Pa. 1973). “Generally, where matters of
strategy and tactics are concerned, counsel’s
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assistance is deemed constitutionally effective if he
chose a particular course that had some reasonable
basis designed to effectuate his client’s interests.”
Commonwealth v. Puksa, 951 A.2d 267, 277 (Pa.
2008), citing Commonwealth v. Miller, 819 A.2d
505, 517 (Pa. 2002)[.] Courts are instructed to
“scrupulously follow the presumption that attorneys
act in the interests of their clients, and insist that
[petitioner] meet his burden of proving that his
attorneys had no reasonable basis for their action.”
Commonwealth v. Watson, 565 A.2d 132, 139
(Pa. 1989).
In a criminal trial where a Commonwealth witness is
an accomplice of the accused in a crime for which
the accused is being tried, a “corrupt source”
instruction advises the jury that accomplices often
attempt to falsely place blame on another in hopes
of obtaining favorable treatment. Pa. SSJI (Crim)
§ 4.01. In light of this reality, a “corrupt source”
instruction advises the jury that the witness’
testimony should be treated with “disfavor because it
comes from a corrupt and polluted source.” Id. A
“corrupt source” instruction is only warranted in
cases where there is sufficient evidence to present a
jury question with respect to whether the witness in
question was an accomplice to the crime charged.
Commonwealth v. Collins, 957 A.2d 237, 262 (Pa.
2008).
At trial, [appellant] presented a consistent theory of
defense asserting that he had no role in the killing:
[Appellant] testified that he drove the victim to the
scene for the purpose of facilitating a purchase of
two pounds of marijuana, and claimed that the
victim and Burse entered the alley where the
shooting took place to meet a third-party drug
dealer. [Appellant] claimed that, after they got to
the alley’s entrance, he realized he had left his
phone in his car, returned to his car to retrieve it,
and then returned to the alley with the phone.
[Appellant] claimed that he then saw either Burse or
the unknown third person shoot the victim in the
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head, and that he must have dropped his phone in
the alley as he was fleeing back to his car.
Given that [appellant] was on trial for the shooting, a
“corrupt source’ instruction with respect to Burse’s
testimony would have suggested to the jury that
[appellant] and Burse committed the crime together.
See Commonwealth v. Spotz, 716 A.2d 580, 585
(Pa. 1998) (“[A]n accomplice is equally criminally
liable for the acts of another if he acts with the intent
of promoting or facilitating the commission of an
offense and agrees, aids, or attempts to aid such
other person . . [. .”).] Where counsel’s strategy at
trial is to assert that a petitioner is not involved with
the crime, counsel has a reasonable basis for not
requesting a “corrupt source” instruction. See
Commonwealth v. Williams, 732 A.2d 1167, 1182
(Pa. 1999) (rejecting claim of counsel ineffectiveness
for failure to request a “corrupt source” instruction
where counsel argued at trial that defendant was not
involved in the killing); Commonwealth v.
Karabin, 426 A.2d 91, 93-94 (Pa. 1981) (trial
counsel was not ineffective for failing to request a
corrupt source instruction, which would have implied
that the defendant participated in criminal activity of
which he claimed to be innocent, as this would have
derogated the defense strategy); Commonwealth
v. Corley, 816 A.2d 1109, 1115 (Pa.Super. 2003)
(counsel had reasonable basis not to request a
“corrupt source” instruction because it would have
contradicted the theory of defense, where defendant
testified that he had no involvement with the crime).
As trial counsel’s strategy asserted that [appellant]
was not at all involved with the shooting, counsel’s
basis for not requesting a “corrupt source”
instruction was reasonable. Therefore, this claim
fails[.]
Trial court opinion, 8/4/17 at 6-7 (citations to record omitted; emphasis in
original).
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This court agrees with the trial court that appellant’s claim of
ineffective assistance of counsel fails. A court should not find that counsel
was ineffective if a reasonable basis exists for counsel’s decision during the
trial. See Commonwealth v. Derk, 719 A.2d 262, 265 (Pa. 1998). As the
trial court stated, a corrupt source charge to the jury that it should view
appellant as an accomplice rather than as someone who had no role in the
murder and just took the victim to the alley to conduct a drug transaction
would contradict and cast doubt on appellant’s primary theory of defense.
As counsel’s action had a reasonable basis to support the interest of his
client, appellant, counsel was not ineffective when he failed to request the
instruction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/18
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