Com. v. Bush, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES BUSH
Appellant No. 3052 EDA 2014
Appeal from the PCRA Order September 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014674-2009
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 20, 2016
Appellant, Charles Bush, appeals from the order entered in the
Philadelphia County Court of Common Pleas, dismissing his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
Appellant was charged with the assault of his seventeen-
year-old daughter, Yisa Johnson. On August 31, 2006, at
approximately 11:00 p.m., medics were dispatched to the
home of Yvette Johnson, Yisa’s mother. The medics found
Yisa hysterically crying and screaming with several
injuries, including a bleeding head wound. Yisa was
transported to Children’s Hospital of Philadelphia where
doctors sealed her chin laceration with three stitches and
her head laceration with four staples.
Yisa consistently told paramedics, detectives, and the
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1
42 Pa.C.S.A. §§ 9541-9546.
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emergency room physician that Appellant hit her over the
head with a hammer multiple times when she came home
late through the front door of her home. In her signed
statement to police, Yisa also claimed Appellant cursed at
her, pulled her hair, and threatened to kill her. Yisa
believed Appellant would have killed her had her boyfriend,
Decarlos Miller, and her friends not pulled Appellant off of
her. Appellant left the home after the attack.
After obtaining a search warrant for Yvette Johnson’s
home, detectives discovered drops of blood on the porch
and entrance area. Yvette directed detectives to a
hammer on the kitchen table with red stains on it. Over a
week later, detectives obtained a signed statement from
Decarlos Miller, in which he claimed he witnessed Appellant
hit Yisa multiple times in the head with a hammer and
gave an account of the incident consistent with Yisa’s
statement to police.
On September 14, 2006, police obtained a warrant for
Appellant’s arrest. However, despite numerous attempts
to find Appellant, police did not apprehend him until June
2, 2008, when he was arrested on the outstanding
warrant. Appellant was charged with attempted murder,
aggravated assault, possessing an instrument of crime,
recklessly endangering another person (REAP), and
endangering the welfare of a child. Appellant proceeded to
a jury trial which commenced on June 22, 2010.
At trial, Yisa, Decarlos, and Yvette all recanted their prior
statements of Appellant’s assault. Yisa had no recollection
of her father hitting her with a hammer and denied giving
police a statement. She could not remember getting
staples in her head [or] getting them removed. When
questioned about her memory loss, Yisa claimed she was
under the influence of marijuana on the night in question
and denied remembering anything. Although Yisa testified
that she did not have a close relationship with Appellant at
the time of the assault, she claimed their relationship “got
way better” afterward.
Similarly, Decarlos also had no recollection of the assault
or his statement to detectives and claimed to be under the
influence of drugs that night. He denied ever meeting
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Appellant or even knowing Appellant’s name. Decarlos
claimed the signature that appeared in cursive on his
statement to police was not his, because he allegedly
“prints” his signature. Detective Timothy Mayer testified
that neither Yisa nor Decarlos appeared to be under the
influence of a controlled substance when they gave their
statements.
Yisa’s mother, Yvette Johnson, denied showing detectives
the hammer used in the assault when they searched her
home. Even after the prosecutor showed Yvette the actual
hammer and a picture of the hammer lying on her kitchen
table, Yvette testified that she had never seen the hammer
before. Appellant testified on his own behalf, claiming that
Yisa and her friends burst through the door and attacked
him. He claimed he started swinging at the group in self-
defense, but never swung a hammer. Appellant admitted
on direct examination that he had a 2002 robbery
conviction for which he was still on parole at the time of
the altercation.
At the conclusion of the trial, the jury convicted Appellant
of aggravated assault and endangering the welfare of a
child, but acquitted him of the remaining charges. On
October 7, 2010, the trial court sentenced Appellant to an
aggregate sentence of eleven (11) to twenty-two (22)
years[’] imprisonment.
Commonwealth v. Bush, No. 2913 EDA 2010, unpublished memorandum
at 1-4 (Pa.Super. filed November 21, 2011).
Appellant filed a timely post-sentence motion, which the court denied
on October 18, 2010. Appellant filed a notice of appeal on October 22,
2010, and this Court affirmed the judgment of sentence on November 21,
2011. Id. Our Supreme Court denied Appellant’s petition for allowance of
appeal on May 15, 2012. See Commonwealth v. Bush, 615 Pa. 789, 44
A.3d 1160 (2012).
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Appellant timely filed a pro se PCRA petition on October 22, 2012. The
PCRA court appointed counsel, and counsel filed an amended PCRA petition
on November 22, 2013. The PCRA court held an evidentiary hearing on June
30, 2014. Appellant’s trial counsel testified at the hearing and stated he had
warned Appellant that his prior conviction could be used to impeach him if
he testified at trial. Counsel stated Appellant agreed to testify, and
Appellant knew trial counsel intended to bring out Appellant’s prior
conviction on direct examination as a strategy to minimize its impact on the
jury.
The PCRA court denied PCRA relief on September 29, 2014. Appellant
timely filed a notice of appeal on October 29, 2014. The court ordered on
November 14, 2014, Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely
complied on December 5, 2014.
Appellant raises one issue for our review:
SHOULD THIS MATTER BE REMANDED FOR THE PCRA
COURT TO MAKE A SPECIFIC CREDIBILITY FINDING THAT
IS CENTRAL TO [APPELLANT’S] ALLEGATION OF
INEFFECTIVE ASSISTANCE OF COUNSEL?
(Appellant’s Brief at 4).
Appellant argues he was totally unaware that his prior robbery
conviction could be used to impeach him if he testified at trial. Appellant
asserts he would not have testified at trial if he had known his prior robbery
conviction could be used to impeach him, and trial counsel unreasonably
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failed to apprise him of that risk. Appellant contends the PCRA court did not
find as a matter of fact that trial counsel had advised Appellant of the
possibility of his prior conviction coming forward at trial. According to
Appellant, if he had not taken the stand, then the jury would have been left
with just the testimony of the three recanting witnesses. Appellant
maintains trial counsel’s strategy of putting Appellant on the stand and
exposing him to the jury as a person with poor credibility made him easier to
convict. Appellant concludes this Court should reverse the PCRA court’s
order dismissing his petition and remand for a specific finding of fact on
whether trial counsel warned Appellant. We disagree.
Our standard of review for the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings; however, we give no deference to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).
“Traditionally, issues of credibility are within the sole domain of the trier of
fact [because] it is the trier of fact who had the opportunity to personally
observe the demeanor of the witnesses.” Commonwealth v. Abu-Jamal,
553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied, 528 U.S. 810, 120
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S.Ct. 41, 145 L.Ed.2d 38 (1999). “[A]s with any other credibility
determination, where the record supports the PCRA court’s credibility
determinations, those determinations are binding” on this Court. Id.The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is
required to demonstrate that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; 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. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The
failure to satisfy any prong of the test for ineffectiveness will cause the claim
to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for 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).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
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Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The [appellant]
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal [appellant] alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
By specifically finding a particular witness credible, the court implicitly
rejects claims contradictory to that witness’ testimony. In re M.K., 636
A.2d 198, 201 (Pa.Super. 1994), appeal denied, 537 Pa. 633, 642 A.2d 486(1994) (holding trial court’s finding witness testified credibly implies
rejection of appellant’s claim that witness’ testimony was fabricated).
Claims alleging ineffectiveness of counsel premised on
allegations that trial counsel's actions interfered with an
accused's right to testify require a defendant to prove
either that counsel interfered with his right to testify, or
that counsel gave specific advice so unreasonable as to
vitiate a knowing and intelligent decision to testify on his
own behalf.
Commonwealth v. Miller, 605 Pa. 1, 38, 987 A.2d 638, 660 (2009)
(quoting Commonwealth v. Nieves, 560 Pa. 529, 533, 746 A.2d 1102,
1104 (2000)). Where counsel discusses the right to testify with a defendant
and advises the defendant on whether he should testify in accordance with
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counsel’s strategy, counsel has not rendered deficient performance.
Commonwealth v. Preston, 613 A.2d 603, 606 (Pa.Super. 1992), appeal
denied, 533 Pa. 658, 625 A.2d 1192 (1993).
Even where its use is properly limited to impeaching
credibility, the introduction of a defendant’s criminal record
possesses a potential for severe prejudicial impact on a
jury. Thus, there would rarely be a time when the
introduction of such evidence would produce some result
favorable to the defendant. Nevertheless, there may be
situations where a defense attorney is substantially certain
that the prosecution will utilize a defendant’s prior
convictions if he decides to testify. In those situations, it
may be reasonable trial strategy for the defense counsel to
bring those convictions out on direct examination in order
to minimize their impact, thus muting the prosecution’s
thunder. Before doing so, however, counsel should be
convinced that such evidence is available to the
prosecution, i.e., that the convictions would properly be
admissible to impeach the defendant’s credibility.
Commonwealth v. Zapata, 455 Pa. 205, 208, 314 A.2d 299, 301 (1974).
Instantly, the PCRA court responded to Appellant’s claim as follows:
Counsel…testified, of course, and reiterated that he had
many discussions with [Appellant] concerning his testifying
on his own behalf. [Counsel] in his opinion thought that it
was important for [Appellant] to testify on his own behalf
[and counsel] discussed that with [Appellant]. He
discussed that the prior robbery conviction would most
certainly be used by the Assistant District Attorney.
However, [counsel] told [Appellant] that as part of his
strategy, trial strategy, [counsel] would bring that fact out
himself on direct examination, which he did, and told the
jury, of course, that [Appellant] was going to testify and
that that was the trial strategy agreed upon between
himself and [Appellant].
It is clear from the record. It was clear at trial. It was
also clear at the PCRA evidentiary hearing…[counsel]
testified credibly that in fact he did go over this trial
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strategy with [Appellant] extensively and that based on
[Appellant’s] agreement, he opened to the jury that
[Appellant] was going to testify. [Counsel] in fact put
[Appellant] on the stand. [Appellant] did not indicate any
unwillingness to testify.
When I offered to colloquy him on whether…to testify,
[Appellant] was in the room. [Appellant] heard [counsel]
say: “It’s not necessary, Your Honor. I’ve gone through
this with him over and over again. He’s aware of his right
to remain silent.”
That is on the record so I don’t find that that claim raised
by [Appellant] has merit. There is no error under those
circumstances.
(N.T. PCRA Evidentiary Hearing, 9/29/14, at 1-2).
In its subsequent Rule 1925(a) opinion, the PCRA court reasoned:
[From] the outset of trial, Appellant made it clear to the
jury that he was going to testify in his own defense to
refute the Commonwealth’s allegations. Prior to his
testimony, this [c]ourt offered to colloquy Appellant on the
decision of whether…to testify. Counsel for
Appellant…declined, stating, “I have abundantly covered
this numerous times with him, and he’s absolutely aware
of his right to refuse to testify.”
* * *
Based on the evidence presented at the hearing, and
having presided over Appellant’s trial, this Court found
Appellant’s ineffectiveness claim to be devoid of merit.
Moreover, it bears noting that Appellant is not claiming
that counsel erred by waiving the colloquy (rendering his
decision to testify “unknowing” and/or “unintelligent”)—
rather, he claims that counsel was ineffective for not
advising him that he could be impeached with his prior
robbery conviction. However, there is no doubt whatever
that the jury based its verdict on Appellant’s repeatedly
admitting to punching his daughter three or four
times coupled with her significant injuries—and not on his
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prior conviction for robbery. Indeed, even if Appellant
had a pristine prior record, the jury would have
convicted him based on the evidence adduced at trial.
Nonetheless, Appellant’s decision to take the stand proved
quite beneficial. That is, the jury obviously found his
testimony credible, having acquitted him of Attempted
Murder, PIC and REAP. As such, far from suffering
prejudice as a result of testifying at trial, Appellant
significantly benefited therefrom. In short, putting
aside the utter meritlessness of his claim, Appellant did
not, and indeed cannot, establish actual prejudice. For
this reason alone, he is due no relief.
(PCRA Court Opinion, filed January 20, 2015, at 9) (emphasis in original).
Contrary to Appellant’s argument, the PCRA court did make a specific
credibility finding in favor of trial counsel’s entire testimony, which included
telling Appellant that his past robbery conviction could be used to impeach
him if he testified on his own behalf and of counsel’s trial strategy to reveal
it on direct examination to minimize its impact. See Abu-Jamal, supra; In
re M.K., supra. The record supports the PCRA court’s evaluation.
Therefore, no remand is necessary. Additionally, we agree with the PCRA
court that Appellant benefited from trial counsel’s strategy, where the jury
obviously believed Appellant and acquitted him of attempted murder, PIC
and REAP. Appellant failed to prove how he was prejudiced by counsel’s trial
strategy or why PCRA relief was warranted. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2016
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