Com. v. Smith, L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LANCE SMITH :
:
Appellant : No. 2207 EDA 2021
Appeal from the PCRA Order Entered September 30, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002394-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LANCE SMITH :
:
Appellant : No. 2208 EDA 2021
Appeal from the PCRA Order Entered September 30, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002395-2014
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 19, 2023
Lance Smith appeals from the orders dismissing his petition for relief
filed pursuant the Post Conviction Relief Act (“PCRA”), see 42 Pa.C.S.A. §§
9541-9546. Smith now argues his trial counsel was ineffective for failing to
object to certain jury instructions and for failing to object to statements made
by the prosecutor during closing arguments. We affirm.
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In November 2013, Smith was involved in a fight that started inside a
restaurant and club on South Street in Philadelphia when another patron,
Willie Crenshaw, believed he observed Smith choking a woman and
intervened. Crenshaw’s brother, Demetry Presley, joined in the fight. The fight
continued outside. Smith retrieved a .40 caliber handgun and returned to
South Street, where he saw Crenshaw and Presley. Presley had been badly
injured in the fight and needed his brother’s assistance to walk. The brothers
crossed the street to avoid Smith, who followed and began shooting toward
them, even as Crenshaw and Presley tried to hide between parked vehicles.
Smith ultimately shot Presley five times, including a fatal shot to the head.
Smith was charged at two separate dockets with murder generally and related
offenses.
In July 2016, Smith pled guilty to third-degree murder, persons not to
possess firearms, and possession of an instrument of crime. Prior to
sentencing, Smith was permitted to withdraw his guilty plea. The matter then
proceeded to a jury trial, after which Smith was convicted of first-degree
murder, firearms not to be carried without a license, recklessly endangering
another person, and resisting arrest. The trial court sentenced Smith to an
aggregate term of life in prison. This Court subsequently affirmed Smith’s
judgment of sentence. See Commonwealth v. Smith, 216 A.3d 442, 3041
and 3042 EDA 2017 (Pa. Super. filed Apr. 30, 2019) (unpublished
memorandum).
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On March 27, 2020, Smith filed the instant, timely PCRA petition raising
several ineffective assistance of counsel claims. The Commonwealth filed a
motion to dismiss Smith’s petition. The PCRA court issued notice of its intent
to dismiss the petition pursuant to Pa.R.Crim.P. 907, to which Smith filed an
objection. On September 30, 2021, the PCRA court dismissed Smith’s PCRA
petition. This timely appeal followed.1
Our appellate review of the denial of PCRA relief “is limited to examining
whether the PCRA court’s findings of fact are supported by the record, and
whether its conclusions of law are free from legal error.” Commonwealth v.
Koehler, 36 A.3d 121, 131 (Pa. Super. 2012) (citation omitted).
On appeal, Smith argues his trial counsel provided ineffective
assistance. Preliminarily, we presume that counsel is effective, and the
appellant bears the burden of proving otherwise. See Commonwealth v.
Bennett, 57 A.3d 1185, 1195 (Pa. 2012). The appellant must demonstrate
that: “(1) the underlying legal claim is of arguable merit; (2) counsel’s action
or inaction lacked any objectively reasonable basis designed to effectuate his
client’s interest; and (3) prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.” Commonwealth
v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citation omitted). Failure
to satisfy any prong of the ineffectiveness test requires rejection of the claim.
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1 Smith filed timely notices of appeal at each docket number. This Court
consolidated the appeals sua sponte.
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See Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016) (citation
omitted).
Smith first claims his trial counsel was ineffective for failing to object to
the trial court’s allegedly erroneous self-defense and voluntary manslaughter
jury instructions. See Appellant’s Brief at 3. According to Smith, the standard
jury instruction for justification does not properly explain that a defendant
may successfully raise a justification defense even where he kills someone
other than the individual who provoked justified deadly force. See id. at 4.
Smith acknowledges that trial counsel requested a modification of the jury
instruction to reflect the defense theory that Smith was justified in shooting
at Crenshaw but shot Presley as a result of poor aim. See id. at 5. According
to Smith, the trial court read the standard instruction despite the parties’
agreement to the modified instruction, and counsel failed to object. See id.
at 6. Smith also avers that trial counsel failed to object to an improper
voluntary manslaughter instruction on the basis that justification could reduce
homicide to manslaughter. See id. at 6-10.
Generally, “counsel is not deemed ineffective for failing to object to a
jury instruction given by the court where the instruction itself is justifiable or
not otherwise improper.” Commonwealth v. Eichinger, 108 A.3d 821, 845
(Pa. 2014). In order to establish prejudice from trial counsel’s failure to object
to an erroneous or missing jury instruction, an appellant must establish that
there is a reasonable probability that the outcome of the proceeding would
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have been different but for counsel’s inaction. See Commonwealth v. Spotz,
84 A.3d 294, 320 (Pa. 2014).
During trial, the parties discussed proposed points of charge with the
trial court, at which time trial counsel raised a question about a justification
charge. Counsel asked the court to change the phrase “the defendant did not
reasonably believe that he was in … imminent danger from [] Presley,” to
include Presley “or his brothers.” See N.T., 9/8/17, at 123.2 Counsel also
explained this change would reflect the defense theory that Smith was in fear
of imminent danger from Crenshaw, who was standing next to Presley. See
id. The Commonwealth, in turn, suggested the court leave out any mention
of names and instead instruct that “defendant did not reasonably believe he
was in imminent danger [of] death or serious bodily injury[.]” Id. at 124. Trial
counsel and the court agreed, and trial counsel identified two specific
instances in the instruction that identified Presley. See id. at 123-34.
The trial court instructed the jury as agreed to by the parties, omitting
Presley’s name in the two sentences that trial counsel had identified. While
Presley’s name appears twice during the instruction, our review reveals that
counsel explicitly identified only two places where Presley’s name should be
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2 We note that the transcripts from September 8, 2017, are not included in
the certified record. See Commonwealth v. Holston, 211 A.3d 1264, 1276
(Pa. Super. 2019) (en banc) (“[T]he ultimate responsibility of ensuring that
the transmitted record is complete rests squarely upon the appellant[.]”).
However, the transcripts from that date are included in the reproduced record,
and neither party contests their contents.
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removed, and the trial court removed those references as requested. See id.
at 123-24. The parties did not discuss removing Presley’s name from the
voluntary manslaughter instruction.
The trial court also explained that certain mitigating circumstances
vitiate malice, and that without malice, the killing may be reduced to voluntary
manslaughter. See N.T., 9/8/17, at 28. The court stated that voluntary
manslaughter may be found if the perpetrator kills under an unreasonable
mistaken belief that the killing was justified. See id. at 28-29; see also id.
at 22 (“[A] killing is without malice if the perpetrator acts with a lawful
justification or excuse or under circumstances that reduce the killing to
voluntary manslaughter.”), 28 (“[Y]ou can find malice and murder only if you
are satisfied beyond a reasonable doubt that the defendant was not acting …
under an unreasonable belief that the circumstances were such that, if they
existed, would have justified the killing.”). Further, the trial court aptly
explained that to negate a justification defense, the Commonwealth was
required to establish that either 1) Smith did not actually believe he was in
danger of death or serious bodily injury which required him to employ deadly
force in self-defense; or 2) Smith actually believed he was in immediate
danger, but that belief was unreasonable in light of the circumstances. See
id. at 25.
We conclude Smith’s underlying claim lacks merit. The challenged jury
instructions comported with the suggested standard jury instructions and
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accurately stated the law. See Pa. SSJI (Crim) § 9.501 (Use of Force/Deadly
Force in Self-Defense); Pa. SSJI (Crim) § 15.2503A (Voluntary Manslaughter—
Murder in Issue). “There is error in jury instructions only when the trial court
abuses its discretion and inaccurately states the law.” Commonwealth v.
Kane, 188 A.3d 1217, 1231 (Pa. Super. 2018). Because the jury instructions
reflected Smith’s particular requests and accurately stated the law, the
underlying claim lacks arguable merit.
Moreover, in light of the evidence supporting Smith’s first-degree
murder conviction, we do not find a reasonable probability that use of different
justification or voluntary manslaughter instruction would have resulted in a
more favorable outcome for Smith. See Spotz, 84 A.3d at 320. In evaluating
Smith’s direct appeal, this Court previously concluded the evidence sufficiently
established that Smith had time to cool off after the initial altercation and
proceeded to deliberately shoot Presley without justification:
[Smith] had been removed from the danger and given the
opportunity to obtain aid from the police and/or medical
professionals, and to be taken home by friends. Instead, [Smith]
ran from the car of women who had tried to remove him from the
scene; connected with a friend who provided [him] with a firearm
and a change of clothes; went back towards the [club] to
encounter Crenshaw and others who were attempting to get
Presley to a hospital; attacked the unarmed group of men,
shooting Presley in the arms, hand, and head; and immediately
thereafter fled from the police.
Smith, 3041 and 3042 EDA 2017 (unpublished memorandum at 8) (citations
to record omitted). Further, Smith pursued Crenshaw and Presley after
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shooting Presley multiple times and the pair had tried to hide behind a car.
See id. (unpublished memorandum at 9).
With more than sufficient evidence that Smith acted with malice and a
specific intent to kill, the mention of Presley’s name during the justification
and voluntary manslaughter instructions would not reasonably have resulted
in a different outcome at trial. Accordingly, Smith failed to demonstrate actual
prejudice. This ineffective assistance of counsel claim does not entitle him to
relief.
Next, Smith claims trial counsel was ineffective for failing to request an
involuntary manslaughter jury instruction, or to the extent he did request such
instruction, for failing to object to the court’s failure to give the instruction.
See Appellant’s Brief at 14-15; see also id. at 15 (“It is not clear whether
trial counsel actually requested an involuntary manslaughter instruction.”).
When evaluating the propriety of an involuntary manslaughter charge,
we consider “first, whether appellant made a timely request for an instruction
on involuntary manslaughter, second, whether the offense was made an issue
in the case, and finally, whether the evidence at trial could support a verdict
of involuntary manslaughter.” Commonwealth v. McCloskey, 656 A.2d
1369, 1372 (Pa. Super. 1995). Additionally, “[t]he issuance of lesser-included
homicide offenses must be firmly grounded in logic and policy, and cannot be
justified as giving a jury discretion to dispense mercy.” Commonwealth v.
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Yale, 150 A.3d 979, 986 (Pa. Super. 2016) (citation and internal quotation
marks omitted).
On direct appeal, Smith similarly argued the trial court erred by
declining to include an involuntary manslaughter jury instruction. As we noted
in our prior decision, “[t]he only reference to a request by [Smith] for a jury
instruction on involuntary manslaughter is the following: ‘I would ask you to
charge with involuntary manslaughter on both ends, both under the heat of
passion, which is logical under the evidence, and under self-defense.’” Smith,
3041 and 3042 EDA 2017 (unpublished memorandum at 11) (citation to
transcript omitted).
Because counsel referred to heat of passion and self-defense, the trial
court believed counsel intended to request a voluntary manslaughter charge.
See Trial Court Opinion, 5/8/18, at 10. Compare 18 Pa.C.S.A. § 2504(a) (“A
person is guilty of involuntary manslaughter when as a direct result of the
doing of an unlawful act in a reckless or grossly negligent manner, or the doing
of a lawful act in a reckless or grossly negligent manner, he causes the death
of another person.”) with 18 Pa.C.S.A. § 2503(a) (a killing committed without
lawful justification where the actor is “under a sudden and intense passion
resulting from serious provocation”), (b) (setting forth the justification
defense). Counsel did not later object to the absence of an involuntary
manslaughter charge. See Smith, 3041 and 3042 EDA 2017 (unpublished
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memorandum at 12) (deeming Smith’s direct appeal challenge waived
because counsel did not raise a timely objection).
Further, even if counsel had intended to request an involuntary
manslaughter charge and had properly objected to its absence, involuntary
manslaughter was not made an issue in the case, nor did the evidence support
an involuntary manslaughter verdict. An instruction for involuntary
manslaughter would have been appropriate if there was evidence that Smith
was reckless or grossly negligent in shooting and killing Presley. See 18
Pa.C.S.A. § 2504.
Here, however, Smith only vaguely argues that his actions were reckless
where he attempted to defend himself against Crenshaw but mistakenly shot
Presley instead. See Appellant’s Brief at 17. Further, while the parties
discussed the jury instructions, trial counsel stated as follows:
Judge, it’s the Commonwealth’s theory of the case that [Smith]
went back for revenge [f]or being beating [sic] up that evening. I
think that’s clearly a completely reasonable theory of what
happened; that he was beaten to a point of a fractured orbit. And
according to the Commonwealth, [Smith] returned with a gun to
seek vengeance. I think that’s a completely consistent version of
the facts.
N.T., 9/8/17, at 122. When the Commonwealth suggested that Smith either
intended to kill Presley or he ultimately drew his gun in self-defense, counsel
replied, “This is a clear case of heat of passion.” Id. at 122-23.
Smith’s primary defense theory was that he believed he was in danger
from Crenshaw and acted in self-defense, mistakenly shooting Presley instead.
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The only recklessness or gross negligence implied in that scenario is that of
Smith’s marksmanship. In other words, this framing concedes that Smith fired
his gun with the intent to, at the very least, hit Crenshaw. That he instead hit
Presley was not relevant to his mens rea under criminal law. See 18 Pa.C.S.A.
§ 303(b)(1).
Alternatively, Smith argued he acted in the heat of passion, which
would point to voluntary manslaughter rather than involuntary manslaughter.
Smith fails to point to any evidence introduced at trial which would support a
verdict of involuntary manslaughter or properly bring the issue of recklessness
or gross negligence before the jury. See Yale, 150 A.3d at 987 (trial court did
not err in denying defendant’s requested involuntary manslaughter jury
charge where there was no evidence that he acted recklessly or with gross
negligence). Moreover, as we discussed above, Smith cannot establish actual
prejudice given the abundant evidence supporting his first-degree murder
conviction. Therefore, counsel was not ineffective for failing to request, or
object to the absence of, an involuntary manslaughter charge.
Smith also claims his trial counsel should have objected to certain
statements made by the prosecutor during closing arguments. See Appellant’s
Brief at 22. In particular, Smith challenges the Commonwealth’s suggestion
that he had motive to kill Presley, arguing that there was no evidence showing
any interaction between the two prior to the shooting. See id. at 22-23.
According to Smith, video footage and witness testimony established that he
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did not interact with Presley during the initial fight. See id. at 23. Smith claims
he was prejudiced by the improper argument because it provided the jury with
a basis for finding malice to support a murder conviction. See id. at 27.
A claim of ineffective assistance grounded in trial counsel’s failure
to object to a prosecutor’s conduct may succeed when the
petitioner demonstrates that the prosecutor’s actions violated a
constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or the
Sixth Amendment right to a fair trial, or a constitutional interest
such as due process. To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to
result in the denial of the defendant’s right to a fair trial.
Commonwealth v. Hanible, 30 A.3d 426, 464-65 (Pa. Super. 2011)
(internal citations and quotation marks omitted). We must also consider the
circumstances and context in which the statement was made. See id. at 465.
We will reverse only if “the unavoidable effect of the challenged comments
would prejudice the jurors and form in their minds a fixed bias and hostility
toward the defendant such that the jurors could not weigh the evidence and
render a true verdict.” Id. (citation and quotation marks omitted).
Here, the PCRA court considered the challenged statements within the
context of the larger argument and concluded the prosecutor merely
summarized the evidence and presented reasonable inferences which could
be deduced therefrom. See PCRA Court Opinion, 12/22/21, at 12-15.3 The
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3 We note that the PCRA court addressed Smith’s final issue as a prosecutorial
misconduct claim rather than as a challenge to counsel’s representation for
failing to object to the statements. Nevertheless, its reasoning speaks to the
arguable merit prong of the ineffective assistance of counsel test.
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court described the events of that evening as “an all-out brawl” and a “melee,”
and concluded there was no common-sense basis to claim that Smith only
fought with Crenshaw, where Presley was also involved in the fight. See id.The PCRA court’s conclusion is supported by the record. Smith was
involved in a large and chaotic fight in a Philadelphia club. It was not
unreasonable to deduce that Smith was at one time engaged in a fight with
Presley or was at least aware of Presley’s participation in the fight. Moreover,
the jury had the opportunity to listen to the testimony and watch the video
footage that Smith references in support of his claim. The trial court also
adequately instructed the jury that closing arguments should not be
considered as evidence and that the jury is not bound by counsels’ recollection
of the evidence. See N.T., 9/8/17, at 150-52. We disagree with Smith’s
assertion that the prosecutor’s comments had the unavoidable effect of
biasing the jury against him, causing the jury to inappropriately weigh the
evidence, or otherwise denying him the right to a fair trial. See
Commonwealth v. Busanet, 54 A.3d 35, 65 (Pa. 2012) (appellant was not
entitled to relief where prosecutor’s repeated implication that appellant
disregarded human life “did not divert the jury’s focus away from considering
the relevant facts of the case and applying them to the law as instructed by
the trial court or in any way deny him the right to a fair trial.”). Therefore, the
underlying claim lacks arguable merit, and Smith’s final ineffective assistance
of counsel claim fails.
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Based upon the foregoing, we affirm the order dismissing Smith’s PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2023
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