Com. v. Stephenson, D. ( 2017 )


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  • J-A21010-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    DOUGLAS EUGENE STEPHENSON,
    Appellant                 No. 819 WDA 2016
    Appeal from the PCRA Order Entered May 9, 2016
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0016742-2009
    BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
    MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 20, 2017
    Appellant, Douglas Eugene Stephenson, appeals from the post-
    conviction court’s May 9, 2016 order denying his petition under the Post
    Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.            After careful
    review, we affirm.
    Briefly, a jury convicted Appellant of second-degree murder, robbery,
    and conspiracy to commit robbery, based on evidence that he and a cohort,
    Travis Hawkins, attempted to rob a jitney driver, during which Hawkins shot
    and killed the driver.1           Appellant was sentenced to a term of life
    incarceration, without the possibility of parole, for his murder conviction, and
    a consecutive term of 72 to 144 months’ incarceration for his conspiracy
    ____________________________________________
    1For a detailed recitation of the facts of Appellant’s case, see PCRA Court
    Opinion (PCO), 1/19/17, at 2-5.
    J-A21010-17
    offense. This Court affirmed Appellant’s judgment of sentence on August 6,
    2013, and our Supreme Court denied his subsequent petition for allowance
    of appeal.    Commonwealth v. Stephenson, 
    83 A.3d 1058
    (Pa. Super.
    2013) (unpublished memorandum), appeal denied, 
    81 A.3d 77
    (Pa. 2013).
    On April 2, 2014, [Appellant] filed the pro se PCRA petition that
    underlies the present appeal.      Counsel was appointed and an amended
    petition was filed on Appellant’s behalf on September 9, 2015. Following a
    PCRA hearing on May 9, 2016, the court issued an order denying Appellant’s
    petition.    Appellant filed a timely notice of appeal, and he also timely
    complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement.
    Thereafter, the court filed a Rule 1925(a) opinion addressing the following
    three claims that Appellant raises herein:
    I.     Whether trial counsel gave ineffective assistance for failing
    to request a full and proper instruction advising that the
    jury cannot use certain statements made by witnesses as
    substantive evidence but they are only to be used as
    impeachment?
    II.    Whether trial counsel gave ineffective assistance for failing
    to object to written instructions being sent to the jury, in
    lieu of oral instructions, which violated Pa.R.Crim.P.
    646(C)(4)?
    III.   Whether the trial court gave an illegal sentence [on]
    conspiracy to commit robbery when, under the facts of this
    case, criminal conspiracy merged for purposes of
    sentencing with the crime of second-degree murder?
    Appellant’s Brief at 5.
    We have reviewed the certified record, the briefs of the parties, and
    the applicable law. We have also reviewed the Rule 1925(a) opinion of The
    -2-
    J-A21010-17
    Honorable Randal B. Todd of the Court of Common Pleas of Allegheny
    County.    We conclude that Judge Todd’s well-reasoned decision accurately
    disposes of the three issues raised by Appellant herein.2 See PCO at 5-11
    (rejecting Appellant’s first issue, as he failed to demonstrate that he was
    prejudiced by trial counsel’s not objecting to the jury instruction); 
    id. at 11-
    12 (finding no merit to Appellant’s second issue, as he failed to establish
    arguable merit in, or resulting prejudice from, his claim that trial counsel
    should have objected to the court’s sending a note to the jury in response to
    a question); 
    id. at 14-15
    (rejecting Appellant’s contention that his sentence
    is illegal because his conspiracy for robbery conviction should have merged
    for   sentencing     purposes     with    his    second-degree   murder   offense).3
    ____________________________________________
    2  We note that Appellant presented four issues in his Rule 1925(b)
    statement, but he has abandoned one of those claims in his brief to this
    Court. Thus, we do not rely on the portion of Judge Todd’s decision which
    addresses Appellant’s abandoned issue. See PCO at 12-14.
    3 In response to Appellant’s illegal sentencing claim, we add one brief note.
    Appellant’s argument rests on the premise that the felony offense underlying
    his second-degree murder conviction was conspiracy to commit robbery
    and, therefore, his sentence for conspiracy must merge with his murder
    sentence. This argument is meritless for several reasons, but two are worth
    mentioning. First, conspiracy to commit robbery is not a felony offense that
    can underlie a second-degree murder conviction.          See 18 Pa.C.S. §§
    2502(b) (“A criminal homicide constitutes murder of the second degree
    when it is committed while [the] defendant was engaged as a principal or an
    accomplice in the perpetration of a felony.”); 2502(d) (defining “Perpetration
    of a felony” as: “The act of the defendant engaging in or being an
    accomplice in the commission of, or an attempt to commit, or flight after
    committing, or attempting to commit robbery, rape, or deviate sexual
    intercourse by force or threat of force, arson, burglary or kidnapping.”).
    Second, Appellant was convicted of robbery in this case, and that offense
    (Footnote Continued Next Page)
    -3-
    J-A21010-17
    Accordingly, we adopt Judge Todd’s rationale as our own, and affirm the
    order denying Appellant’s PCRA petition on that basis.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/20/2017
    (Footnote Continued) _______________________
    merged with his murder conviction for sentencing purposes. See Order of
    Sentence, 11/7/11. Thus, Appellant’s argument that his conspiracy to
    commit robbery conviction should also merge is meritless.
    -4-
    Circulated 11/01/2017 12:35 PM
    IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
    COMMONWEALTH OF                       CRIMINAL DIVISION
    PENNSYLVANIA                                                        44,
    NO:      CC200916742
    v.
    Appeal
    DOUGLAS EUGENE STEPHENSON,
    OPINION
    Petitioner.
    JUDGE RANDAL B. TODD
    COPIES SENT TO:
    Stephen A. Zappala, Jr.
    District Attorney
    By
    Michael Streily, Esquire
    Assistant District Attorney
    401 Courthouse
    436 Grant Street
    Pittsburgh, PA 15219
    Counsel of Record for Petitioner:
    Thomas N. Farrell, Esquire
    Farrell & Associates
    100 Ross Street, Suite 1
    Pittsburgh, PA 15219
    Douglas Eugene Stephenson, Petitioner
    #KG4514
    SCI Camp Hill
    P.O. Box 200
    Camp Hill, PA 17001-8837
    IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
    COMMONWEALTH OF                                                CRIMINAL DIVISION
    PENNSYLVANIA
    v.                                                             NO:     CC200916742
    DOUGLAS EUGENE STEPHENSON,
    Petitioner.
    TODD, J.
    January 19, 2017
    OPINION
    This is an appeal from an order entered on May 9, 2016 dismissing Petitioner's PCRA
    Petition after a hearing on May 3, 2016. On June 8, 2016 Petitioner filed    a   timely Notice of
    Appeal. On June 20, 2016     a   1925(b) Order was entered ordering Petitioner to file a Concise
    Statement of Matters Complained of on Appeal. On July 11, 2016 Petitioner filed an Extension
    for Statement of Errors Complained of on Appeal which was granted by Order of July 12, 2016.
    On July 14, 2016 Petitioner filed his Statement of Errors Complained of on Appeal setting forth
    the following claims:
    Whether trial counsel gave ineffective assistance for failing to request a
    full and proper instruction advising that the jury cannot use certain
    statements made by witnesses as substantive evidence but they are only to
    be used as impeachment?
    2.      Whether trial counsel gave ineffective assistance for failing to object to
    written instructions being sent to the jury, in lieu of oral instructions,
    which violated Pa.R.Crim.P. 646(c)(4)?
    1
    3.     Whether trial counsel gave ineffective assistance when she permitted the
    Commonwealth to present the taped statement of Travis Hawkins, the Co -
    Defendant, in violation of the Confrontation Clauses of the Pennsylvania
    and United States Constitutions?
    4.     Whether the trial court gave an illegal sentence of conspiracy to commit
    robbery when, under the facts of this case, criminal conspiracy merged for
    purposes of sentencing with the crime of second degree murder?"
    BACKGROUND:
    The factual background regarding this case was set forth in the 1925(b) opinion of
    January 14, 2013 as follows:
    "This matter arises out the shooting death of James William, Jr., a 53 year old
    jitney driver in the Sheridan area of the City of Pittsburgh on July 7, 2009. The
    police received a call in the early morning hours of July 7, 2009 that a vehicle had
    run into a yard at the corner of Zephyr and Ashlyn Streets. (T., p 33)
    Investigating officers found a 1998 Jeep Cherokee crashed in the yard with an
    unresponsive black male slumped over in the driver's seat of the vehicle with the
    motor running, the vehicle in gear and the headlights on. (T., p. 38) Paramedics
    called to the scene at 1:55 a.m. found the victim had sustained a fatal gunshot
    wound to his chest. (T., p. 60) The area was secured and processed as a crime
    scene. The vehicle was examined for fingerprints and a partial left palm
    impression print was obtained from the passenger's side window. (T., p. 105) A
    search and canvas of the neighborhood was performed but there were no
    witnesses discovered and no additional evidence was recovered. (T., pp. 67-71)
    At trial the Commonwealth called Dr. Karl E. Williams of the Allegheny
    County Medical Examiner's Office who testified that the victim died of a gunshot
    would that entered the left side of his chest, went through the right side of the
    heart, the diaphragm, the liver and then exited the right side of his body. (T., p.
    77) Dr. Williams also testified that the victim did not have signs of any bruises,
    scratches, scrapes or contusions on his head or neck. (T., p. 83)
    The Commonwealth then called Detective Vonsal Boose who testified that
    on October 9, 2009, approximately 3 months after the shooting, Dana Williams
    was brought to the police station by a family member because she purportedly had
    information concerning the shooting. (T., 123) Detective Boose testified that
    Dana Williams described the events related to the shooting, gave a recorded
    statement and viewed a photo array. (T., p. 123) Based on information supplied
    by Dana Williams, two additional witnesses were developed, Dominique Clark
    2
    and her sister, Taneshia Clark. Both Dominique Clark and Taneshia Clark gave
    statements to the police on October 15, 2009. (T., pp. 190-193; 209-214)
    The Commonwealth called Dana Williams, Dominique Clark and
    Taneshia Clark to testify at trial. Each of these witnesses testified, however, that
    they could not recall the events of July 7, 2009. Dana Williams did identify
    Defendant as "CK" and acknowledged that she had given a statement to the
    police, but testified repeatedly that she did not recall the events on the night in
    question. (T., pp. 130-132) Consequently, the tape recording of her interview
    with police on October 9, 2009 was played for the jury. (T., p. 134) In her taped
    statement she stated that co-defendant, Travis Hawkins, (a/k/a "Twerk")
    approached the victim with a gun. She stated the following:
    "Twerk goes to the jitney driver's side, pulls the gun up to him. The
    jitney driver tries to pull the gun out of his hand. Basically, they was like tossing
    like." (Dana Williams Statement, October 9, 2009 - p. 5)
    "As Twerk and the jitney driver was like fighting, not really fighting but
    he was trying to take the gun out of his hand." and "... that's when Twerk pulled
    the trigger." (Dana Williams Statement, October 9, 2009 - p. 6)
    She further stated that she saw Defendant giving Hawkins the gun used in
    the robbery. She also stated that Defendant went to the passenger's side and
    "started punching the driver in the head. (Dana Williams Statement, October 9,
    2009 - p. 6)
    Dana Williams' testimony from the preliminary hearing of November 13,
    2009 was also read to the jury. (T., pp. 164-173) During this testimony Dana
    Williams again testified that Defendant handed the gun to Hawkins and that
    Hawkins then proceeded to the driver's side door of the vehicle at which time a
    struggle occurred between Hawkins and the victim. She then testified that, "CK
    walked to the passenger's side, opens the door, and I see him punching the jitney
    driver in the head", at which point the gun went off. (T., p. 160)
    Dominique Clark also acknowledged that she was present on the night of
    the shooting and that Defendant was present. (T., p. 181) However, she also
    testified that she either could not recall what transpired or was told what to say
    and what to write by the police. (T., pp. 182-187) Dominique Clark's statement
    of October 15, 2009 was then played. She likewise stated that she saw a boy with
    "his whole body is in the jitney driver's window." (Dominique Clark Statement,
    October 15, 2009 - p. 4) She stated that while the victim was struggling with the
    gunman, "CK and his friend were on the passenger's side." (Dominique Clark
    Statement, October 15, 2009 - p. 5) She described that his arm was in the vehicle,
    but his body wasn't. (Dominique Clark Statement, October 15, 2009 - p. 8)
    3
    The Commonwealth then called Taneshia Clark who also acknowledged
    being present and identified Hawkins as the shooter, but denied seeing Defendant
    or seeing Defendant near the passenger's side of the vehicle door and stated that
    she was told to write on the array that Defendant was on the passenger's side. (T.,
    pp. 199-202)
    The Commonwealth then called Detective James McGee who testified to
    his interview with Taneshia Clark and her description of the events that night.
    Detective McGee testified that Taneshia Clark stated:
    "At that time Mr. Hawkins, who she referred to as Twerk, and Mr.
    Stephenson, who she called CK, stated that those two left a group of people,
    walked down towards where the jitney was. Ms. Clark said that Mr. Hawkins
    approached the driver's side of the vehicle, and Mr. Stephenson went to the
    passenger's side of the vehicle. She said as soon as they reached the vehicle, she
    saw Mr. Hawkins reach in and was tussling with the driver. She said she believed
    they were tussling over a gun. She never saw it, but she thought it was a gun. At
    the same time she saw Mr. Stephenson leaning in the passenger's side of the
    window also tussling with the driver of the vehicle. She said as soon as they
    started doing that, she heard one gun shot." (T., pp. 210-211)
    The taped statement of Taneshia Clark was then played for the jury. (T.,
    p. 215) In her taped statement she, in fact, stated that she saw Hawkins and
    Defendant go to the car and that she saw Hawkins and the victim wrestling for the
    gun. She further said that while Hawkins and the jitney driver were "tussling"
    over the gun, that Defendant was on the passenger's side of the car and that his
    upper body was in the car when she heard the gun shot. (Taneshia Clark
    Statement, October 15, 2009 - pp. 5-6)
    After it was determined that co-defendant, Travis Hawkins, was invoking
    his Fifth Amendment rights and refusing testify, the Commonwealth played the
    taped statement of Travis Hawkins. (T., p. 175) In Hawkins' statement of
    October 16, 2009, after waiving his Miranda rights, Hawkins stated that:
    "I went up there and I pointed the gun to the driver, pointed the gun to
    him; said, Throw it off. He grabbed the gun, he started wrestling with the gun and
    me, I was scared. So, I tried to pull back with the gun with both hands and then it
    accidentally shot." (Travis Hawkins Statement, October 16, 2009 - p. 3)
    He also testified that he informed Defendant that he was about to rob the
    victim and, although lie initially changed his mind, he ultimately decided to do it.
    He testified he didn't know whether someone else was on the passenger's side of
    the car because "I was too scared. I was too focused on trying to grab the gun."
    (Travis Hawkins Statement, October 16, 2009 - p. 4) The Commonwealth also
    called Detective John Godlewski, an expert in fingerprint analysis, who testified
    4
    that the partial left palm impression lifted from the passenger window of the
    deceased's vehicle belonged to Defendant. (T., p. 114)
    The Commonwealth then called Detective James Smith who testified that
    Defendant had a tattoo on his right hand that said "CK All Day" and also testified
    that the phrase "throw it off' means the same as "stick em up". (T., p. 178)
    After being appropriately instructed, the jury found Defendant guilty as set forth above.
    The jury returned a verdict on August 3, 2011 finding Petitioner guilty of Second
    Degree
    Murder, Robbery - Serious Bodily Injury and Criminal Conspiracy - Robbery.
    Petitioner was
    sentenced to   a   term of life imprisonment for Second Degree Murder and a consecutive term of 72
    to 144 months for Criminal Conspiracy      -   Robbery. On August 6, 2013 the Superior Court
    affirmed the judgment of sentence. On November 26, 2013 Petitioner's Petition for
    Allowance
    of Appeal to the Supreme Court was denied, On April 2, 2014 Petitioner
    filed a pro se PCRA
    Petition and on May 13, 2014 counsel was appointed. Petitioner's Motions for
    Extension of
    Time to File an Amended PCRA Petition were granted and an Amended PCRA
    Petition was
    filed on September 9, 2015. The Commonwealth filed an Answer
    to Amended PCRA Petition
    on February 4, 2016. On May 2, 2016 a hearing was held at which time trial
    counsel testified
    addressing the issues raised in the petition. On May 9, 2016 an order was
    entered dismissing the
    PCRA Petition and this appeal followed.
    DISCUSSION:
    Petitioner's first issue is that trial counsel was ineffective for failing to request a jury
    instruction that certain alleged inconsistent statements made by Dana
    Williams and Taneshia
    Clark could only be used for impeachment purposes and not as substantive
    evidence. Petitioner
    also argues that counsel was ineffective for failing to object to the following
    instruction that was
    given to the jury:
    "Now, you have heard evidence that witnesses make statements on
    earlier
    occasions that were inconsistent with their present testimony. You may, if you
    5
    choose, regard this evidence as proof of the truth of anything that the witness said
    in an earlier statement. You may also consider this evidence to help you judge the
    credibility and the weight of the testimony given by the witness at the time of
    trial." (T., pp. 284-285)
    Petitioner submits that the instruction fails to differentiate between those inconsistent
    statements that might be used as substantive evidence and those that may only be used for
    impeachment purposes. A prior inconsistent statement made by witness can only be used as
    substantive evidence when the witness testifies, is subject to cross-examination about the
    statement, and the prior inconsistent statement of the witness was either: 1) given under oath and
    subject to the penalty of perjury at a trial, hearing or other proceeding or in   a   deposition; 2) is a
    writing signed were adopted by the witness; or, 3) is a verbatim contemporaneous electronic
    audio tape or videotape recording of an old statement. The law concerning the use of prior
    inconsistent statements   is set   forth in Pa.R.E. 803.1 and Commonwealth   v.   Lively, 
    610 A.2d 7
    (1992). Rule 803.1 provides:
    "The following statements are not excluded by the rule against hearsay if the
    declarant testifies and is subject to cross-examination about the prior statement:
    (1) Prior Inconsistent Statement of Declarant -Witness. A prior statement by a
    declarant -witness that is inconsistent with the declarant -witness's testimony and:
    (A) was given under oath subject to the penalty of perjury at a trial, hearing, or
    other proceeding, or in a deposition;
    (B) is a writing signed and adopted by the declarant; or
    (C) is a verbatim contemporaneous electronic, audiotaped, or videotaped
    recording of an oral statement." Pa.R.E. 803.1
    In Commonwealth    v.   Lively, 
    610 A.2d 7
    (1992) the Pennsylvania Supreme Court held:
    In an effort to ensure that only those hearsay declarations that are demonstrably
    reliable and trustworthy are considered as substantive evidence, we now hold that
    a prior inconsistent statement may be used as substantive evidence only when the
    statement is given under oath at a formal legal proceeding; or the statement had
    been reduced to a writing signed and adopted by the witness; or a statement that is
    a contemporaneous verbatim recording of the witness's statements.
    Commonwealth v. Lively, 
    610 A.2d 7
    , 10 (1992)
    6
    Petitioner alleges that Detective Evans and Detective McGee testified concerning
    statements made by Dana Williams and Taneisha Clark that were neither recorded in any manner
    nor adopted by them and, therefore, the jury should have been instructed that those statements
    could be used for impeachment purposes only.' Specifically Petitioner alleges that Detective
    Evans testified that Dana Williams told him that she was afraid of retaliation when he testified as
    follows:
    Did she give an explanation as to why she took three months before she
    came forward?
    A.            Yes, she did. She said that there were threats involved.
    Ms. Foreman: Objection; that is hearsay.
    The Court:     I will sustain the objection. It is   hearsay.
    Q.        What did she tell you?
    A.        She told me she was afraid of retaliation.
    Q.        What did she tell you about the incident?" (T., pp. 145-146)
    Detective Evans also testified on cross-examination:
    "Q.       So she came right into the police station and came up to you or another
    detective and said, I have a bunch of information on a homicide?
    A.         I   believe she called first before she came and spoke to my boss.
    Q.        You said that prior to her testifying here today you saw her crying in the
    hallway?
    A.        That's correct.
    Q.        Is that your testimony?
    A.        Yes.
    There is no dispute that prior inconsistent statements made by Williams, Taneshia Clark and
    Dominique Clark contained in their preliminary hearing transcripts and tape recorded statements
    that were presented at trial could be used as substantive evidence and the jury instruction set
    forth above is correct as to those statements.
    7
    Q.     You keep saying, well, she was afraid. You don't have any firsthand
    knowledge that she was fearful? You don't know why she was crying?
    You are just assuming she was afraid?
    A.     She told me she was afraid.
    Q.      She told you she was afraid?
    A.      Yes.
    Q.      She didn't tell you why?
    A.      She said she's afraid of retaliation." (T., pp. 151-152)
    The statements, which were allegedly inconsistent with her trial
    testimony, were neither recorded
    in any manner nor adopted by Williams.
    In addition, Detective James McGee, Detective McGee
    testified concerning statements
    allegedly made by him by Taneshia Clark as follows:
    "Miss Clark said that Mr. Hawkins approached the driver side of the vehicle,
    and
    Mr. Stephenson went to the passenger side of the vehicle. She said
    as soon as they
    reach the vehicle, she saw Mr. Hawkins reach in and was
    tussling with the driver.
    She said she believed they were tussling over the gun. She never
    saw it, but she
    thought it was a gun. At the same time she saw Mr. Stephenson
    leaning in the
    passenger side of the window also tussling with the driver of the vehicle.
    She said
    as soon as they started doing that, she heard one
    gunshot." (T., pp. 210 -211)
    The statement attributed to Clark by Detective McGee that
    Petitioner was "also tussling
    with the driver" was not recorded or otherwise adopted by
    Clark. In fact, Clark's recorded
    statement only stated that Petitioner was on the passenger side of the
    vehicle, the door was open,
    and Petitioner was leaning in. She also stated that when
    Hawkins and the victim were tussling
    over the gun she did not see what Petitioner was doing.
    (Taneshia Clark Recorded Statement,
    pp. 5-6)
    After Taneshia Clark's taped statement was played for the jury,
    Detective McGee was
    cross-examined as follows:
    8
    "Q.    Now, you just sat here and listened to this taped statement, but prior to the
    statement being played, when you were asked by Mr. Stadtmiller what Taneshia
    said to you that day, you indicated that she said she saw my client tussling with
    the victim in the car, on the other side of the car?
    A.      That's correct.
    Q.      But you would agree with me that during the taped statement when you
    asked her: Okay, well, if Twerk and the jitney driver were tussling over the gun,
    what was CK doing? She responds: I don't know what he was doing. You would
    agree that she never mentioned that he was tussling in anyway?
    A.      On the tape she didn't." (T., p. 216)
    In order for Petitioner to be entitled to relief on the basis that trial counsel was
    ineffective, Petitioner must show by a preponderance of the evidence ineffective assistance of
    counsel which, in the circumstances of the particular case, so undermined the truth -determining
    process that no reliable adjudication of guilt or innocence could have taken place.
    Commonwealth     v.   Brady, 741 A.2d. 758, 763 (Pa. Super. 1999) This standard requires
    Petitioner to show: (1) that the claim is of arguable merit; (2) that counsel had no reasonable,
    objective basis for his actions; and (3) that, but for the errors or omissions of counsel, there is    a
    reasonable probability that the outcome of the proceedings would have been different, that is,
    that the petitioner was prejudiced by the alleged ineffectiveness of counsel. Comtnomvealth       v.
    Kimball, 
    724 A.2d 326
    , 333 (1999). Counsel is presumed to be effective, however, and the
    burden rests with the petitioner to overcome that presumption. Commonwealth v. Pierce, 
    527 A.2d 973
    , 975 (1987), Commonwealth       v.   Pirela, 
    580 A.2d 848
    , 850 (1990), appeal denied, 
    594 A.2d 658
    (1991). If a petitioner fails to meet any one of these three prongs, then an evidentiary
    hearing is not necessary. Commonwealth        v.   Wells, 
    578 A.2d 27
    , 32 (Pa. Super. 1990)
    At the PCRA hearing, when questioned about failing to object to the instruction counsel,
    although indicating that she had cross-examined Detective McGee about his statement, testified
    9
    that she could not recall if she had a strategy as it pertained to the court's instruction to
    the jury.
    (T., pp. 10-12)
    The Commonwealth concedes that the testimony of Detective Evans and Detective
    McGee as set forth above concerning alleged prior inconsistent statements of Dana Williams
    and
    Taneshia Clark would not have been appropriately admitted as substantive evidence.
    However,
    as argued by the Commonwealth, it is clear that Petitioner has failed
    to demonstrate any actual
    prejudice as a result of any failure by trial counsel to request an instruction from the
    court that
    certain statements of Williams, Taneshia Clark and Dominique Clark could only
    be considered
    for impeachment purposes. An examination of the prior statements that
    could properly be
    considered as substantive testimony indicate that Petitioner approached the
    passenger side of the
    vehicle and was either striking or hitting the victim. Specifically, Dana
    Williams testified that
    Petitioner went to the passenger side of the vehicle, opened the door and started
    punching the
    jitney driver in the head. (Dana Williams Statement, p. 6) In Taneshia Clark's
    statement, she
    stated that Petitioner was on the passenger side of the vehicle with the
    door open, leaning in the
    vehicle while Hawkins was leaning in and tussling with the victim when the
    gun went off.
    (Taneshia Clark Statement, pp. S-7) In addition, Dominique Clark's
    statement also placed
    Petitioner next to the vehicle on the passenger side with his arm in the vehicle.
    (Dominique
    Clark Statement, pp. 5-8)
    As there was properly admitted substantive evidence that
    Petitioner was at the passenger
    side of the vehicle, with the door open, reaching or leaning in and
    punching the victim at or
    about the time Hawkins was struggling with the victim over the
    gun when it went off, Petitioner
    has failed to establish that, but for the failure to request the jury
    instructions as alleged, that there
    10
    is a reasonable probability that the outcome of the proceedings would have been different.
    Therefore, there is no merit to Petitioner's claim on this issue and it was properly dismissed.
    Petitioner next argues that counsel was ineffective for failing to object to written
    instructions being sent to the jury, in lieu of oral instructions, in violation of Pa.R.Crim.P.
    646(c)(4)     .   Rule 646 provides as follows:
    Rule 646. Material Permitted in Possession of the Jury
    Currentness
    (A) Upon retiring, the jury may take with it such exhibits as the trial judge deems
    proper, except as provided in paragraph (C).
    (B) The trial judge may permit the members of the jury to have for use during
    deliberations written copies of the portion of the judge's charge on the elements of
    the offenses, lesser included offenses, and any defense upon which the jury has
    been instructed.
    (1) If the judge permits tile jury to have written copies of the portion of the judge's
    charge on the elements of the offenses, lesser included offenses, and any defense
    upon which the jury has been instructed, the judge shall provide that portion of
    the charge in its entirety.
    (2) The judge shall instruct the jury about the use of the written charge. At a
    minimum, the judge shall instruct the jurors that
    (a) the entire charge, written and oral, shall be given equal weight; and
    (b) the jury may submit questions regarding any portion of the charge.
    (C) During deliberations, the jury shall not be permitted to have:
    (1) a transcript of any trial testimony;
    (2) a copy of any written or otherwise recorded confession by the defendant;
    (3) a copy of the information or indictment; and
    (4) except as provided in paragraph (B), written jury instructions.
    Pa. R. Crim. P. 646
    The record reflects that the jury began its deliberations at 11:50 a.m. (T., p 303) At 1:30
    p.m. the jury foreperson submitted the following question:
    "If guilt is found for felony robbery, are all murder charges still open, options? If
    so, could you please redefine all of them." (T., p. 304)
    In response to the question, counsel was advised that the following response would
    be given to
    the jury:
    11
    "Dear Mr. Foreperson and Members of the Jury, each of the three counts that the
    defendant is charged with are separate and distinct charges. You have to decide
    guilty or not guilty on each count separately. If you feel it is necessary to be
    recharged on criminal homicide, please inform my tip staff, Mr. Woodcock." (T,,
    pp. 304-305)
    Upon receiving the response, the jury foreperson indicated that the jury wished to be recharged
    on the issue of criminal homicide. Consequently, the jury was brought back to the
    courtroom
    and re -instructed in the presence of counsel and Petitioner. (T., pp. 306 - 312)
    Clearly the response to the jurors' question was not an instruction given in violation of
    Pa.R.Crim.P. 646 (c)(4). There was no instruction on the law given to the jury in the note. It
    simply advised them that they were to deliberate on each count separately as
    previously
    instructed and to advise the court if they needed further clarification or reinstruction.
    In response
    to the note the jury requested the reinstruction and were, therefore,
    brought back to the
    courtroom for further instruction. Consequently, there was no violation of Rule 646
    (c)(4). In
    addition, Petitioner has failed to present any evidence demonstrating that he was
    in any way
    prejudiced by the note that was given to the jury. Therefore, counsel was not
    ineffective in
    failing to object to the note.
    In   Petitioner's third issue on appeal, Petitioner claims that trial counsel was ineffective
    when she failed to object to the admission of the taped statement of Travis
    Hawkins. At the
    PCRA hearing trial counsel testified about her strategy regarding
    Hawkins' taped statement.
    Counsel testified:
    "I believe that Mr. Hawkins was deemed unavailable to testify
    and that's why the
    taped statement was brought in. However, that statement was    probably the best
    evidence that we had to go along with the theory of our case, so I wouldn't
    have
    objected to it because I believe that it helped Mr. Stephenson. He and I had a lot
    of conversations about the defense in that case, and from what I recall the
    defense
    was that Mr. Hawkins was the perpetrator and the sole perpetrator of the
    robbery,
    that he was the one who masterminded the robbery. When they got the
    gun,
    12
    approached the jitney driver, tussled with the jitney driver, shot him, and
    everyone ran. The taped statement actually only one time referenced a CK, which
    was Mr. Stephenson's street name at the time, and that reference was made in
    conjunction with Mr. Hawkins saying something like he was telling him he was
    going to get a gun and go rob this person, and it is Mr. Stephenson, CK, saying,
    no, don't do it. That's the only reference to CK in there. In fact, the whole
    statement was Mr. Hawkins saying, you know, he devised this plan to rob this
    person, he went and got the gun, he went to the jitney car, he tussled with him,
    and the guy was shot. And he was even asked during the statement whether or not
    there was anybody else involved, and he indicated he didn't recall anybody. So I
    wouldn't have objected because I believe it was helpful to our defense." (PCRA
    H.T., pp 7-8)
    Petitioner did not testify at the PCRA hearing to refute counsel's testimony that he and
    counsel agreed to a trial strategy that included the use of Hawkins' statement. Petitioner asserts
    that without Hawkins' statement, the Commonwealth would not have been able to establish the
    fact that the shooting occurred during a robbery and thus provide a basis for the conviction for
    second-degree murder. In response, trial counsel stated:
    "Well, there were other witnesses, girls that came in to testify later and indicated
    there was a robbery and a gun involved, so, no, I think other statements would've
    come in any way." (PCRA H.T., p. 8)
    This assertion is confirmed by   a   review of the record. In addition, counsel's strategy was
    evident in her closing argument when she stated:
    "I want to talk about the statement of Mr. Travis Hawkins, because I think this is
    the most important piece of evidence you were given. Mr. Standttniller asked to
    play the tape of Travis Hawkins. I didn't object. He is the co-conspirator. I
    wanted you to hear it. I wanted you to hear the words out of this man's mouth as
    he told them confessed to the police that he committed the crimes that day and he
    committed the crime of murder. (T.T., p. 250)
    Counsel further stated in her argument:
    "This is a man who goes in and who confesses to the police that he acted alone,
    never indicated that Douglas enticed him in any way, that he acted alone, he had
    the gun, he went over to the car, he made the choice, he made the decision by
    himself. There was not an agreement, not a conspiracy. (T.T., p. 250)
    13
    A review of Hawkins' statement indicates that Hawkins did not clearly implicate
    Petitioner as a participant in the robbery or shooting. (Amended PCRA Petition Exhibit I) As
    trial counsel testified, there was one reference to "CK" in which Hawkins stated that after seeing
    the jitney parked on Zephyr Street he "informed CK, told him that I was about to rob him. He
    said, no at first and then I said No, but f   _ k it." (Travis Hawkins Statement, p. 3) Hawkins
    then stated that when he stated that, that meant that he was "not going to do it." (Travis
    Hawkins
    Statement, p. 3) There is no further reference in the remainder of the statement to Petitioner.
    Petitioner's allegation that there is nothing in the statement that helps his case is contradicted by
    the statement itself. Clearly counsel's strategy was to use Hawkins' recorded
    statement to argue
    to the jury that Hawkins never implicated Petitioner in the shooting in any manner and
    that he
    acted alone. An examination of counsel's closing argument shows that she emphasized
    Hawkins' statement and used it to buttress the further argument that the testimony of Dana
    Williams, Taneshia Clark and Dominique Clark was contradictory and should be rejected.
    A review of the entire record indicates that counsel weighed the potential
    benefit of the
    admission of Hawkins' statement in light of all of the other evidence in the case.
    Counsel
    established a reasonable strategy for not objecting to the admission of the statement. Therefore,
    counsel was not ineffective in failing to object to the admission of Hawkins' taped statement.
    Petitioner's final claims is that he was given an illegal sentence for conspiracy to commit
    robbery when, under the facts of the case, criminal conspiracy merged for purposes of
    sentencing
    with the crime of second degree murder. Petitioner alleges that his sentence was
    illegal because
    he received   a   life sentence for second degree murder and a consecutive sentence for conspiracy
    to commit robbery. Specifically, Petitioner argued that the jury was instructed that
    it could
    14
    convict him of second degree murder as either a co-conspirator or as an accomplice.
    Petitioner
    alleged that:
    "The conspiracy theory incorporated the same elements as the criminal charge of
    conspiracy. Pursuant to an Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    120 S. Ct. 2348
             (2000), because the jury was not asked specifically as to what theory they used to
    convict Petitioner, an increase in sentence cannot occur, In other words, it must
    be assumed that the jury found Petitioner guilty of second degree murder because
    of the conspiracy theory. Id." (PCRA Petition, p. 19)
    In Apprendi     v.   New Jersey, 
    530 U.S. 466
    , 490, 
    120 S. Ct. 2348
    , (2000) the United States
    Supreme Court held that any finding which results in punishment beyond the statutory
    maximum
    must be submitted to a jury and proven beyond a reasonable doubt. Commonwealth
    v.
    Haughwout, 
    837 A.2d 480
    , 488 (2003) The holding in Apprendi is inapplicable
    in this case.
    There was no enhancement of the sentence based on a fact not found by
    the jury. Whether or not
    Petitioner was found guilty of second degree murder as        a   co-conspirator or an accomplice is
    unrelated to his conviction for criminal conspiracy -robbery.
    The crime of conspiracy is separate and distinct from the underlying
    substantive crime.
    Commonwealth      v.   Ritter, 615 A.2d. 442, 444 (Pa. Super. 1992) Sentences will merge
    when: (1)
    the crimes have the same elements, i.e., are lesser included offenses,
    and (2) the facts of the cases
    are such that the facts which establish one criminal charge also serve
    as the basis for the
    additional criminal charge. Commonwealth         v.   Servich, 602 A.2d. 1338, 1345 (Pa. Super. 1992)
    Therefore, Petitioner's claim that he was subject to an illegal sentence was
    appropriately
    dismissed.
    15
    

Document Info

Docket Number: 819 WDA 2016

Filed Date: 11/20/2017

Precedential Status: Precedential

Modified Date: 11/20/2017