Com. v. Green, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
STANLEY GREEN :
:
Appellant : No. 1257 EDA 2017
Appeal from the PCRA Order April 10, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009234-2008
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 29, 2018
Stanley Green appeals from the denial of collateral relief for his
convictions for third-degree murder and firearms offenses arising from the
shooting death of Jameil Martin. He makes numerous claims that trial counsel
was ineffective. He also argues trial counsel’s cumulative errors rendered his
trial fundamentally unfair, and that the PCRA court erred by not granting an
evidentiary hearing. We affirm.
In April 2008, during an altercation on a corner in Philadelphia, Green
pulled out a gun and shot Martin, who died from his wounds. Police
investigated and charged Green. At Green’s jury trial in December 2009, the
prosecution presented the testimony of numerous witnesses, including three
eyewitnesses who testified that Green fired multiple shots at Martin, even after
Martin turned and ran. See N.T., 12/10/09, at 107, 219-221; N.T., 12/15/09,
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* Former Justice specially assigned to the Superior Court.
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at 38-41. One of the eyewitnesses testified that Green chased after Martin
and continued to shoot at him. That witness also said that although Martin
had his hands in his pockets, the “pockets were too small to conceal any
weapon.” N.T., 12/10/09, at 211. That testimony was corroborated by
testimony of a police crime scene investigator that, based on where the shell
cases landed, the shooter was moving while firing at Martin. N.T., 12/15/09,
at 160-161.
The Commonwealth also presented the testimony of a medical
examiner, Dr. Gary Collins. Dr. Collins testified that he did not perform the
victim’s autopsy, but offered opinions based on information in the autopsy
report, including that the victim might have been holding his arms in a
“defensive posture” when Green shot him. N.T., 12/16/09, at 80-81. Trial
counsel did not object either to the admission into evidence of the autopsy
report, or to Dr. Collins’ testimony.
Green testified in his own defense that Martin was pulling a gun from
his pocket when Green fired at him, and that a man who was with Martin at
the time of the shooting took Martin’s gun from the scene. Green described
the man as “short, brown skin, he had a brown hoody on, and a Muslim kufi.”
N.T., 12/16/09, at 171. The only other witness for the defense testified she
did not did not see the shooting, but was nearby, and said that a “short and
stocky” man with a mustache who was wearing a brown sweatshirt, black
coat, and a kufi “may have” had a gun. Id. at 138-139.
Following the close of evidence, the trial court instructed the jury,
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including about the Commonwealth’s burden of proving guilt beyond a
reasonable doubt. The court illustrated the reasonable doubt analysis by
drawing an analogy to having to decide whether a loved one should go through
with a medical procedure for a life-threatening condition.
The jury found Green guilty of third-degree murder, firearms not to be
carried without a license, carrying a firearm on public streets or public
property in Philadelphia, and possession of an instrument of crime.1 The Court
sentenced him in January 2010 to an aggregate term of incarceration of 19½
to 39 years. Green filed a direct appeal, and this Court affirmed the judgment
of sentence. The Pennsylvania Supreme Court denied Green’s petition for
allowance of appeal on November 14, 2011.
On November 6, 2012, Green filed a timely pro se Post Conviction Relief
Act (“PCRA”) petition. The court appointed counsel who filed both an amended
petition and a supplemental amended petition. The PCRA court dismissed the
petition on April 7, 2017.2 This appeal followed.3
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1 18 Pa.C.S.A. §§ 2502(c), 6106, 6108, and 907(a).
2 Although neither the lower court docket nor the certified record
demonstrates that the PCRA court sent Pa.R.Crim.P 907 notice of its intent to
dismiss the PCRA petition, we will not remand. The PCRA court’s opinion states
that it did, in fact, send Rule 907 notice, and in any event, Green does not
claim that he did not receive the Rule 907 notice. Rather, he argues that the
Rule 907 notice was substantively deficient. Green’s Br. at 45-46. No remand
is necessary because Green implicitly concedes having received the notice,
and, as discussed below, his claims lack merit.
3 The PCRA court ordered Green to file a Pennsylvania Rule of Appellate
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Green raises the following claims on appeal:
1. Whether PCRA counsel was ineffective for failing to raise a
meritorious trial counsel ineffectiveness claim for failing to
object to the trial court’s reasonable doubt instruction.
2. Whether trial counsel failed to object on confrontation
grounds to Dr. Gary Collins’s [sic] forensic pathology
testimony concerning Martin’s gunshot wounds because Dr.
Collins did not perform Martin’s autopsy or write the autopsy
report, yet he based his opinions regarding the gunshot
wounds on the autopsy report written and certified by Dr.
Bennett Preston.
3. Trial counsel failed to retain and present an independent
forensic pathologist to rebut the Commonwealth’s claim that
Green shot Martin as Martin had his hands in a defensive
posture.
4. Trial counsel’s cumulative errors rendered Green’s trial
fundamentally unfair.
5. The PCRA court erred by not granting an evidentiary
hearing.
Green’s Br. at 4.
I. Green Is Not Entitled to Relief on his Ineffectiveness Claims.
Green claims his PCRA counsel was ineffective for failing to raise a claim
that trial counsel was ineffective for not objecting to the reasonable doubt
instruction. He further argues the PCRA court should not have dismissed his
PCRA petition because he raised meritorious claims that his trial counsel was
ineffective for failing to make a Confrontation Clause objection to Dr. Collins’
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Procedure 1925(b) statement, but Green did not comply. We decline to find
waiver, however, because there is no notation on the docket that the trial
court prothonotary gave Green the required notice of the entry of the Rule
1925(b) order. See Pa.R.C.P. 236(a); Commonwealth v. Davis, 867 A.2d
585, 588 (Pa.Super. 2005) (en banc).
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testimony, and for failing to present expert testimony to rebut Dr. Collins’
testimony.
When reviewing the dismissal of a PCRA petition, we examine the PCRA
court’s “findings of fact to determine whether they are supported by the
record, and . . . its conclusions of law to determine whether they are free from
legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). To
prevail on an ineffectiveness claim, a petitioner must establish that (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable basis for
the action or inaction; and (3) the petitioner suffered actual prejudice as a
result. Id. We presume counsel was effective and the petitioner bears the
burden of demonstrating ineffectiveness. Id. The prejudice prong requires the
petitioner to show that there is a reasonable probability that the outcome of
the proceedings would have been different but for counsel’s alleged
ineffectiveness. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).
The petitioner must establish all three prongs of the ineffectiveness test in
order to prevail. Spotz, 84 A.3d at 311.
A. Failure to Object to the Trial Court’s Reasonable
Doubt Instruction
Green first argues his PCRA counsel was ineffective for not arguing that
trial counsel was ineffective for failing to object to the trial court’s reasonable
doubt jury instruction. He argues that the hypothetical the trial court used to
explain reasonable doubt overstated the degree of uncertainty necessary to
secure an acquittal, and in effect increased it to something greater than
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reasonable doubt. Green raises this claim for the first time on appeal. He did
not make such a claim in any of his filings before the PCRA court. He has
therefore waived it. Pa.R.A.P.302; Commonwealth v. Henkel, 90 A.3d 16,
20, 29 (Pa.Super. 2014) (en banc) (holding that PCRA petitioner cannot raise
claim that PCRA counsel was ineffective for the first time on appeal).
Even if Green had preserved this claim, we would deny relief because
the underlying objection lacks arguable merit. “[A] jury charge must be read
as a whole to determine whether it is fair or prejudicial.” Commonwealth v.
Miller, 746 A.2d 592, 604 (Pa. 2000). “The trial court has broad discretion in
phrasing its instructions so long as the law is clearly, adequately and
accurately presented to the jury.” Id.Here, the trial court began its reasonable doubt instruction by telling the
jury that reasonable doubt is “not proof beyond all doubt,” but one “that would
cause a reasonably careful and sensible person to pause, to hesitate, to refrain
from acting upon a matter of the highest importance to their own affairs”:
Proof beyond a reasonable doubt is not proof beyond all
doubt. Proof beyond a reasonable doubt is not proof to a
mathematical certainty. It is likewise not a requirement that
the Commonwealth demonstrate the complete impossibility
of innocence.
A reasonable doubt is a doubt that would cause a reasonably
careful and sensible person to pause, to hesitate, to refrain
from acting upon a matter of the highest importance to their
own affairs.
A reasonable doubt must fairly arise out of the evidence that
was presented or out of the lack of evidence presented with
respect to some element of each of the crimes charged.
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N.T., 12/17/09, at 131-32.
The court then illustrated reasonable doubt to the jury by drawing an
analogy to having to decide whether a loved one should go through with a
medical procedure for a life-threatening condition:
If you were told by that loved one’s physician that the loved
one had a life-threatening condition, very likely, ladies and
gentlemen, you are going to get a second opinion, you are
probably going to get a third opinion.
If you are like me, you . . . are going to call everybody you
know about – who got some knowledge about medicine.
What do you know? Tell me about this illness. Tell me what
the protocols are for it. How do we best treat it? Who is the
best doc in town? What do you know? You might do Internet
research. You do a ton of stuff.
But at some point the question will be called. Do I go forward
with the medical procedure for my loved one? . . .
If you go forward, it is not because you have moved beyond
all doubt. There are no guaranties in life. If you go forward,
it is because you have moved beyond a reasonable doubt.
Ladies and gentlemen, a reasonable doubt must be a real
doubt. It is not a doubt that is imagined or manufactured to
avoid carrying out an unpleasant responsibility. I told you,
I’m not asking you to do something easy. I’m asking you to
do something hard.
N.T. Trial, 12/17/2009, at 132-134.
The court concluded the reasonable doubt instruction by stating that “a
mere suspicion of guilt” is insufficient for the jury to convict, and that the
prosecution bears the burden of proving guilt beyond a reasonable doubt:
To find a citizen guilty, it must be grounded on the evidence
that proves the elements of the crimes beyond a reasonable
doubt. A mere suspicion of guilt is insufficient to meet the
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Commonwealth's burdens. The Commonwealth bears the
burden of proving Stanley Green guilty beyond a reasonable
doubt.
Id. at 134.
Green argues that the trial court’s hypothetical unconstitutionally
increased the degree of doubt. In support, he cites a federal habeas decision,
Brooks v. Gilmore, 2:15-cv-05659, 2017 WL 3475475, at *5 (E.D. Pa. Aug.
11, 2017), appeal dismissed sub nom. Brooks v. Superintendent
Greene SCI, No. 17-2971, 2018 WL 1304895 (3d Cir. Feb. 28, 2018). His
reliance on Brooks is misplaced for two reasons. First, we are not bound by
decisions of the federal district courts. See Commonwealth v. Orie, 88 A.3d
983, 1009 (Pa.Super. 2014). Second, the jury instruction at issue here
differed in material ways from the instruction the federal district court found
unconstitutional in Brooks.
In Brooks, the trial court analogized the reasonable doubt analysis to
having to decide whether a loved one should undergo “the only known protocol
or the best protocol” for “a life-threatening condition,” where the protocol “was
an experimental surgery. . . .” Id. at 3. The federal district court in Brooks
trained on these additional facts – a single or best protocol that was
experimental – in finding that the instruction increased the degree of doubt to
something more than reasonable doubt. The court explained that, in its view,
rather than reasonable doubt, one would need “profound, if not overwhelming,
doubt to deny a loved one their only or best opportunity for a cure” of a “life-
threatening condition.” Id. at *4. The court reasoned that such a “powerful
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and emotionally charged metaphor” erroneously instructed the jury to
disregard doubts and to favor conviction, because “any person of decency and
morals would strive to put aside doubt when faced with a single life-saving
option for a loved one.” Id.
The instruction in this case included no such details, or any other factor
that would be improper under Brooks. Unlike the analogy at issue in Brooks,
the hypothetical here only referred to a “protocol” as a piece of information
one might want to know before deciding whether to “go forward with the
medical procedure.” In contrast, in Brooks, the condition was one for which
there was an “only known” or “best” protocol, and that protocol was an
“experimental surgery.” Because these key facts were absent from the
hypothetical the court used in this case, and there were no other factors in
the hypothetical here that would have caused the jury improperly to put aside
doubts, Brooks is inapposite and does not persuade us that the instruction
here was erroneous.
When the analogy is read in the context of the total jury instruction, the
trial court’s explanation of reasonable doubt was not improper. The jury
instructions in this case first correctly informed the jury that a reasonable
doubt “is a doubt that would cause a reasonably careful and sensible person
to pause, to hesitate, to refrain from acting upon a matter of the highest
importance to their own affairs,” and must arise from the evidence, or lack
thereof. N.T. Trial, 12/17/2009, at 131. The hypothetical to which Green
belatedly objects then followed, and the court closed the reasonable doubt
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instruction by reminding the jury that the Commonwealth bore the burden of
proving guilt beyond a reasonable doubt, and that it could not carry that
burden with a “mere suspicion of guilt.” Id. at 134. The hypothetical was in
no way contrary to the other portions of the reasonable doubt instruction,
which are undisputed here. Overall, the instruction correctly informed the jury
about the Commonwealth’s burden of proving guilt beyond a reasonable
doubt. Accordingly, the underlying claim lacks arguable merit.
Although Green complains that the hypothetical described reasonable
doubt in terms of deciding whether to “go forward” with a treatment, rather
than as a factor that would cause hesitation, that observation does not tell the
whole story. A more complete consideration of the charge in its entirety
reveals that the judge, in fact, first told the jury that a reasonable doubt is
one that would “cause a reasonably careful and sensible person to pause, to
hesitate, to refrain. . . .” N.T., 12/17/09, at 131. When the court later used
the phrase, “go forward,” it did so as a way of telling the jury that the
Commonwealth bore the burden of convincing the jury beyond a reasonable
doubt. That was a correct statement of the law.
Moreover, even if the use of the hypothetical constituted error, Green
fails to establish prejudice. The evidence against Green was quite strong. The
Commonwealth presented the testimony of multiple eyewitnesses that was
corroborated by physical and ballistics evidence. Green has not established
that there is a reasonable probability that the outcome of his trial would have
been different if trial counsel had objected to the reasonable doubt jury
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instruction. See Commonwealth v. Fisher, 813 A.2d 761, 775 (Pa. 2002)
(Saylor, J., concurring) (finding no prejudice, despite concluding that
objection to hypothetical on reasonable doubt would have had arguable merit,
where other parts of instructions gave jury correct definitions of reasonable
doubt and the evidence was overwhelming). Accordingly, even if PCRA counsel
had raised this claim before the PCRA court, Green would not be entitled to
relief.
B. Failure to Object to the Testimony of Dr. Gary Collins
and the Admission of the Autopsy Report
Green next argues trial counsel was ineffective for not objecting to the
admission of the autopsy report and to Dr. Gary Collins’ expert forensic
pathology testimony. He contends that such an objection would have been
meritorious because Dr. Collins did not perform the victim’s autopsy, and
rather based his opinions on the autopsy report that Dr. Bennett Preston
prepared. Green argues that if his trial counsel had objected to the autopsy
report and Dr. Collins’ testimony, it is reasonably likely that the jury would
have found him not guilty of third-degree murder.
The admission of an autopsy report without the accompanying
testimony of the person who prepared it violates a defendant’s Sixth
Amendment right to confront witnesses, unless the preparer “was unavailable
and [the defendant] ‘had a prior opportunity to cross-examine’ him.”
Commonwealth v. Brown, 185 A.3d 316, 329 (Pa. 2018). Further, the
Confrontation Clause “precludes the admission of a testimonial report through
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‘surrogate’ in-court testimony.” Id. at 319 n.3 (citing Bullcoming v. New
Mexico, 564 U.S. 647, 652-53 (2011)); but see Commonwealth v. Yohe,
79 A.3d 520, 538 (Pa. 2013) (distinguishing Bullcoming and finding no
Confrontation Clause violation where the testifying witness reviewed the entire
file, compared test printouts, certified the accuracy of results, and signed the
report).
Here, Green cannot prevail on his ineffectiveness claim because he fails
to establish prejudice. To the extent the autopsy report was evidence that
Martin died from gunshot wounds, Green’s own testimony was evidence of
that same fact. Green took the stand and testified at trial that he shot Martin.
N.T., 12/16/09, at 172. Further, Howard and Mumford testified that Martin
died. N.T., 12/10/09, at 170; N.T., 12/15/09, at 71. It is therefore difficult to
see how the report independently influenced the jury’s decision to such an
extent that there is a reasonable probability that the verdict would have been
different without it.
As for Dr. Collins’ testimony, to the extent it posed a Confrontation
Clause issue,4 Green is similarly unable to prove prejudice. Green’s arguments
focus on Dr. Collins’ testimony that the position of bullet holes in Martin
indicated that Martin’s arms were in a defensive position when Green shot
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4 But see Williams v. Illinois, 567 U.S. 50, 58 (2012) (plurality) (citing
F.R.E. 703, and stating, “Out-of-court statements that are related by the
expert solely for the purpose of explaining the assumptions on which that
opinion rests are not offered for their truth and thus fall outside the scope of
the Confrontation Clause”), cited in Brown, 185 A.3d at 327.
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him. Green fails to establish that testimony prejudiced him because Dr. Collins’
testimony played a minor role in the Commonwealth’s evidence disproving
Green’s claim of self-defense.
A claim of self-defense requires evidence of three elements: (a) the
defendant reasonably believed that he or she was in imminent danger of death
or serious bodily injury and that it was necessary to use deadly force against
the victim to prevent such harm; (b) the defendant was free from fault in
provoking the difficulty which culminated in the slaying; and (c) the defendant
did not violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738,
740 (Pa. 2012). If the evidence before the factfinder raises a question about
whether the defendant acted in self-defense, the Commonwealth must
disprove self-defense beyond a reasonable doubt. Id. (citing
Commonwealth v. Black, 376 A.2d 627, 630 (Pa. 1977)).
In this case, the evidence that Green was not acting in self-defense was
extensive. Three eyewitnesses testified that Martin was unarmed, and police
did not find a gun anywhere at the scene or on Martin’s person. N.T.,
12/10/09, at 100-101, 211; N.T., 12/15/09, at 41; N.T., 12/15/09, at 140;
N.T., 12/16/09, at 37. Two of the eyewitnesses stated that, after Green began
shooting, Martin ran away as Green chased him and continued to shoot at
him. N.T., 12/10/09, at 101, 107; 219-21; N.T., 12/15/09, at 38-39, 160-61.
Green was the only person to testify that Martin had a gun, and no evidence
corroborated his testimony that Martin had a gun. N.T., 12/16/09, at 171-72.
The only other defense witness did not testify that she saw the shooting, and,
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inconsistently with Green’s testimony, said that it was Martin’s companion at
the time of the shooting who “may have” had a gun, not Martin. Id. at 138-
39.
In view of this evidence, we cannot say that if trial counsel had
successfully objected to Dr. Collins’ testimony, there is a reasonable likelihood
the outcome of Green’s trial would have been different. Cf. Brown, 185 A.3d
at 318 (rejecting Confrontation Clause challenge on harmless error grounds).5
C. Failure to Retain and Present an Independent
Forensic Pathologist
Green also claims that trial counsel was ineffective for failing to retain
and present the testimony of an independent forensic pathologist to rebut Dr.
Collins’ testimony that Martin suffered defensive wounds. N.T. 12/16/09, 79-
80. The PCRA court properly dismissed this claim because Green again cannot
establish prejudice.
“Where a claim is made of counsel's ineffectiveness for failing to call
witnesses, it is the appellant's burden to show that the witness existed and
was available; counsel was aware of, or had a duty to know of the witness;
the witness was willing and able to appear; and the proposed testimony was
necessary in order to avoid prejudice to the appellant.” Commonwealth v.
Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (quoting Commonwealth v.
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5 The Court in Brown unanimously agreed that the Confrontation Clause error
in admitting an autopsy report “presented without accompanying testimony
by its author” was harmless error, but no majority of the Court was in
agreement as to the reason the error was harmless.
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Wayne, 720 A.2d 456, 470 (Pa. 1998).
Here, the PCRA court found that even if trial counsel had presented
rebuttal expert testimony, it would not have altered the outcome of the trial
because of the extent of the evidence against Green. Trial Court Opinion, flied
Aug. 31, 2017, at 8. We agree. As we explain above, the testimony of the
three eyewitnesses, the testimony of the crime scene investigator, and the
absence of evidence corroborating Green’s testimony, were strong evidence
against Green. The testimony that Green chased after Martin while continuing
to shoot at him was particularly persuasive evidence that Green did not shoot
Martin in self-defense. We cannot say that there is a reasonable probability
that even if trial counsel had obtained and introduced into evidence rebuttal
expert testimony, the verdict would have been different. PCRA court did not
err in denying Green’s ineffectiveness claims.
II. Green is not Entitled to Relief for Cumulative
Ineffectiveness.
Green seeks PCRA relief based on the cumulative effect of the purported
errors raised in his Amended Petition. However, “no number of failed claims
may collectively warrant relief if they fail to do so individually.”
Commonwealth v. Tedford, 960 A.2d 1, 56 (Pa. 2008) (quoting
Commonwealth v. Washington, 927 A.2d 586, 617 (Pa. 2007)). Therefore,
Green’s claim of cumulative errors does not render counsel’s assistance
ineffective.
III. The PCRA Court Did Not Err in Refusing to Grant an
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Evidentiary Hearing.
Green claims that the PCRA court erred in refusing to grant an
evidentiary hearing. “[T]he PCRA court can decline to hold a hearing if there
is no genuine issue concerning any material fact and the petitioner is not
entitled to post-conviction collateral relief, and no purpose would be served
by any further proceedings.” Commonwealth v. Taylor, 933 A.2d 1035,
1040 (Pa.Super. 2007). On appeal, to determine whether the failure to
conduct a hearing was error, we “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
material fact in controversy and in denying relief without conducting an
evidentiary hearing.” Id. (quoting Commonwealth v. Turetsky, 925 A.2d
876, 882 (Pa.Super. 2007)).
There was no genuine issue of material fact as to any claim before the
trial court (i.e., Green’s claims other than regarding the reasonable doubt
instruction, which he challenges for the first time on appeal). As explained
above, the record establishes that trial counsel was not ineffective for failing
to object to the autopsy report and medical examiner testimony, or for not
calling a rebuttal expert. There was no need for an evidentiary hearing, and
the PCRA court did not err in dismissing Green’s petition without holding one.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/18
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