Com. v. Scott, D. ( 2018 )

J-S21001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD WILLIAM SCOTT :
:
Appellant : No. 1238 WDA 2016
Appeal from the PCRA Order July 19, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0018335-2008
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JULY 03, 2018
Appellant, Donald William Scott, appeals from the order entered on July
19, 2016, dismissing his petition filed under the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S.A. § 9541-9546. We vacate in part and affirm in part.
Specifically, we vacate the portion of the order that failed to grant Appellant
relief on his illegal sentencing claim. We also vacate Appellant’s judgment of
sentence and remand for re-sentencing. In all other respects, we affirm.
The trial court previously explained the facts underlying Appellant’s
convictions:
This matter arises out of a shooting which took place in the
early morning hours of November 23, 2008 in a parking lot
adjacent to a building owned by [Appellant] in Wilkinsburg,
[Pennsylvania]. The shooting resulted in the death of Derrick
House and the wounding of William [Bennett]. . . .
[Appellant] had rented out a room in his building for a
birthday party that started at approximately 9:00 p.m. on
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November 22. Although planned for a group of 30 to 40
young teenagers, many more and much older teenagers
arrived and were admitted to the party until there was well
in excess of 80 people at the party. [Appellant] and other
adults assisting him were searching the teenagers for
weapons as they entered and providing security throughout
the night. . . .
The evidence establishes that the party, for the most part,
remained orderly. However, as the party was ending a large
group of the older teenagers were leaving and a fight erupted
between Defendant and one of the older teenagers, Troy
Cole, over a broken gold chain necklace being worn by Cole.
This fight, which started inside the building, eventually spilled
out into the street behind the building and an adjacent
parking lot. . . .
Once outside, several of the other teenagers also began
threatening or attacking [Appellant], until he was able to
retreat back inside the building. Shortly thereafter, Edric
McArthur, one of the adults assisting [Appellant], while trying
to disperse the group, also came under attack when he
ventured outside the building. [Appellant] went back outside
to aid McArthur and again was attacked until he and McArthur
could get back inside. . . .
After remaining inside for at least several minutes,
[Appellant] decided to go to his car that was parked in the
Save A Lot store parking lot, adjacent to his building. A video
surveillance camera for the store captured the events that
followed, which were also described by three witnesses who
were in the parking lot, Shenita Howard, Bennett and Cole. .
..
Bennett, . . . Howard and Cole all testified they saw
[Appellant] running to his car and that a large group of the
teenagers who had been lingering nearby saw [Appellant]
and ran at him as he reached his vehicle. The Commonwealth
described it as a group of 15 to 20 [teenagers]. The
surveillance video clearly shows [Appellant] running to his
vehicle and the teenagers converging on [Appellant] as he
reaches his vehicle and struggling with him as he closes or
attempts to close his door. One of those running towards the
vehicle was the victim, House. . . .
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The witnesses further testified that someone then yelled that
[Appellant] had a gun. At that point, some of the attackers,
including House, can be seen on the video running from
[Appellant’s] vehicle. Within seconds, at least [three] shots
were fired by [Appellant], one of which struck House as he
was running with his back to [Appellant] approximately 40
feet away. The bullet, which was believed by the medical
examiner to be a high velocity bullet such as a .44 caliber,
struck the back of the victim's head resulting in his death.
The medical examiner also testified that there was no
evidence of gunshot residue, soot or [stippling] which would
indicate that House was at close range when shot. Bennett,
who was running down Penn Avenue, was shot in his leg,
shattering his femur, and arm.
Howard testified that after seeing House shot, she saw
[Appellant] standing or pacing outside his vehicle with a silver
handgun and then he reentered his vehicle and pulled out
from the parking lot. As [Appellant] pulled out of the parking
lot [Sergeant] Henry Singer of the Wilkinsburg Police
Department, who received a dispatch about a disturbance at
12:20 a.m., pulled into the parking lot. . . .
As he [was] approaching the scene, [Sergeant] Singer heard
[four or five gunshots]. He identified the video from the
surveillance camera which showed [Appellant’s] vehicle
pulling out as he pulled into the lot. The video then showed
[Sergeant] Singer approaching the victim as he lay in the
parking lot. [Sergeant] Singer testified that he secured the
area and later searched for evidence but found no shell
casings, bullets, guns or other physical evidence.
The Commonwealth called Officer Rory McLaughlin, a
Department of Veterans Affairs police officer, who testified
that at approximately 3:00 a.m. on November 23 he was
dispatched to the VA [Hospital] by emergency room
personnel because [Appellant] had come to the hospital
saying he was involved in an incident in which shots were
fired and he was injured. McLaughlin was dispatched to
search [Appellant] for weapons. . . .
McLaughlin testified that he spoke with [Appellant] and
[Appellant] described being attacked twice, the second time
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at his car, and that he then left the scene and he must have
"passed out." [Appellant] did say that shots were fired,
however, did not tell McLaughlin that he had fired a gun that
night. He also told McLaughlin that he had not called the
police, but that he needed to call to report the incident.
McLaughlin found Defendant's cell phone on him, but no
weapons. McLaughlin also testified that video surveillance at
the hospital showed that [Appellant] entered the hospital at
2:50 a.m.
[Appellant] was subsequently interviewed by Detective
Thomas DeFelice of the Allegheny County Police at
approximately 4:30 a.m. Detective DeFelice testified that
[Appellant] described the events that night, but stated that
"while he was being attacked he heard three or four
gunshots. He was able to kick a male off of him and he made
it to his truck. He put his truck in reverse and drove away."
He then said that he blacked out but denied firing a gun.
When informed that a gunshot residue test could be
performed, [Appellant] told the Detective that he was
cleaning his gun earlier in the day. At trial, Defendant denied
owning or possessing any handguns.
The Commonwealth called Detective Matthews of the
Allegheny County Police who testified that he conducted a
search of [Appellant’s] house and vehicle, finding some
ammunition for handguns, including a .44 caliber cartridge
on the passenger's side of [Appellant’s] vehicle, as well as a
magazine and a grip for a handgun. However, no handguns
were found.
The Commonwealth also called Detective Kinavey of the
Allegheny County Police who identified a digital sketch and
measurements made of the scene of the shooting which
showed that House was 41 feet, 9 inches from [Appellant’s]
vehicle when he was shot in the back of the head. He also
testified that State Police gun license records showed that
[Appellant] was not licensed to carry a firearm.
...
[Appellant] testified that he owned the building where the
party took place for 15 years. He rented the room for the
party, which was to be for 30 to 40 children between the ages
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of 11 to 14, and that he asked Edric McArthur, among others,
to help him with the part. . . .
The party started at 9:00 p.m. [Appellant] and McArthur
patted down the teenagers for weapons as they entered the
party. [Appellant] testified that as the party was concluding
he got into a confrontation with Troy Cole about his gold chain
and during the argument, Cole and three other teenagers
jumped him. He said his attackers then ran outside and he
shut the door. However, McArthur went outside to disperse
the group and he then saw them beating McArthur so he went
outside to assist McArthur and was attacked again until he
and McArthur were able to get back inside. . . .
He [] waited about [ten] to 15 minutes and then went outside
to get his truck to get some of the younger children home
and to get medical attention for himself and [McArthur]. As
he went to his car, he saw a large group of teenagers running
at him and screaming that they were going to kill him. . . .
As he got to his truck they were grabbing, hitting and pulling
him. He testified that he didn't have a gun, but as he
struggled, "One of them that was standing right directly in
front of me, he was grabbing [at] my sweater. The gun came
out of his coat." At that time he instinctively grabbed for the
gun at which time it went off. He described it as a black
revolver. He then testified that he recalls shooting the gun
at least one more time and when he did his attackers, "were
just there, in front, everyone still. It was just a split second."
He testified that he thought his life was in danger but he
didn't try to shoot anyone. . . .
[Appellant] testified he then went to a friend's house and then
to the VA Hospital for what he described as a gash on his
head, bruises and contusions to his face and defensive
wounds on his hands, back, and both legs. In the attack
[Appellant] also sustained or aggravated a hernia that
required surgery and he subsequently suffered a stroke for
which he was in rehabilitation. [Appellant] testified that
because of the stroke, he had "aphasia", which affected his
speech, thinking, and his ability to read and write.
On cross-examination, [Appellant] denied seeing the police
coming onto the scene as he drove away. [Appellant] stated
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that he did not go straight to the hospital because he blacked
out. He denied the gun was his or that he owned any
handguns. He testified that he believed that he dropped the
gun used in the shooting in the parking lot. He explained the
ammunition in his vehicle as ammunition that was transferred
from one car to another and that may have been his wife's or
someone else's.
The defense also called Edric McArthur who also testified to
the fights and the encounters with the teenagers inside and
outside the building. However, McArthur did not see or hear
the shooting in the parking lot.
The defense also called Medina El, who had rented the room
from [Appellant] for her child's 14th birthday party. She
confirmed the fact that [Appellant] and McArthur were beaten
up and that the teenagers outside were threatening and
saying "they had guns." She called 911 because of her fear
of the crowd outside. She also believed that [Appellant] was
going to his vehicle to help take some of the younger children
home.
The defense also called Vlossie Long, [Appellant’s] friend,
who testified that [Appellant] came to his house about 1:00
to 1:30 a.m. and he appeared to be "a little bit beat up." He
said [Appellant] kept saying that they "jumped me." He
stated that [Appellant] stayed about 15 minutes and Long
told him to go to the hospital.
The defense also presented character testimony through
Long and Chris Sullivan, who testified to [Appellant’s] long
involvement in a boxing program in the area which benefited
the young people of the community. . . .
After being appropriately instructed, the jury found
[Appellant] guilty of voluntary manslaughter, aggravated
assault and carrying a firearm without a license. . . .
Trial Court Opinion, 11/15/11, at 4-10 (internal citations omitted).
On December 22, 2010, the Commonwealth provided Appellant with
notice that it intended to seek mandatory minimum sentences of five to ten
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years in prison, under 42 Pa.C.S.A. § 9712, for Appellant’s voluntary
manslaughter and aggravated assault convictions. Commonwealth’s Notice
Pursuant to 42 Pa.C.S.A. § 9712. The Commonwealth notified Appellant that
it was seeking the mandatory minimum sentencing terms because Appellant’s
convictions were “crimes of violence” and Appellant “visibly possessed a
firearm . . . that placed the victim[s] in reasonable fear of death or serious
bodily injury, during the commission of the offense[s].” See id.; see also 42
Pa.C.S.A. § 9712(a) (held unconstitutional in Commonwealth v. Valentine,
101 A.3d 801 (Pa. Super. 2014)).
On February 24, 2011, the trial court sentenced Appellant to serve an
aggregate term of ten to 20 years in prison for his convictions; Appellant’s
aggregate sentence included the two above-mentioned mandatory minimum
sentencing terms of five to ten years in prison, under 42 Pa.C.S.A. § 9712(a).
See N.T. Sentencing Hearing, 2/24/11, at 26.
We affirmed Appellant’s judgment of sentence on November 29, 2012
and the Pennsylvania Supreme Court denied his petition for allowance of
appeal on May 30, 2013. Commonwealth v. Scott, 63 A.3d 840 (Pa. Super.
2012) (unpublished memorandum) at 1-21, appeal denied, 68 A.3d 908 (Pa.
2013).
On August 22, 2014, Appellant filed the current, timely PCRA petition.
See 42 Pa.C.S.A. § 9545(b); U.S.Sup.Ct.R. 13(1). The counseled petition
raised a number of claims, including that Appellant’s “mandatory minimum
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sentences are illegal under Alleyne v. United States[, 570 U.S. 99 (2013)].”
Appellant’s PCRA Petition, 8/22/14, at 16.
The Commonwealth responded to Appellant’s petition and conceded that
Appellant’s sentence was illegal under Alleyne. Commonwealth’s Supplement
to Answer to PCRA Petition, 4/8/16, at 1-2. However, the Commonwealth
argued that the remainder of Appellant’s claims failed. See Commonwealth’s
Answer to PCRA Petition, 10/29/15, at 1-39; Commonwealth’s Supplement to
Answer to PCRA Petition, 4/8/16, at 1-7.
On May 9, 2016, the PCRA court held a hearing on the matter. At the
beginning of the hearing, the Commonwealth declared:
Your Honor, . . . two of the issues raised in the [petition] . .
. pertain to sentencing. With your permission, I believe the
correct way to proceed is essentially bifurcate those issues.
If [Appellant] was to in fact get PCRA relief and get a new
trial, obviously any sentencing claims are . . . moot. If the
PCRA is denied, then at that point the Commonwealth does
agree that [Appellant] does need to be resentenced pursuant
to Alleyne. He had a mandatory minimum. I guess at the
end of this proceeding we could pick a date perhaps for that.
N.T. PCRA Hearing, 5/9/16, at 4-5.
The PCRA court and Appellant’s counsel agreed to this course of action.
Id. at 5.
At the conclusion of the hearing, the PCRA court reserved its decision
on the matter; the court did not rule on Appellant’s illegal sentencing claim.
Id. at 77-79.
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On July 19, 2016, the PCRA court dismissed Appellant’s petition in toto.
Appellant filed a timely notice of appeal; Appellant numbers ten claims on
appeal:
[1.] Was [Appellant’s] claim for relief properly cognizable
under the [PCRA]?
[2.] Did the [PCRA] court err in finding that direct appeal
counsel was not ineffective for failing to argue that
[Appellant] was entitled to a new trial under the June 28,
2011 amendments to 18 Pa.C.S.A. § 505(b)?
[3.] Did the [PCRA] court err in denying the motion for
discovery to obtain the medical records of [] victim William
Bennett, and any associated ballistics reports?
[4.] Did the [PCRA] court err in finding that counsel was not
ineffective for failing to object to the hearsay opinion
testimony given by non-expert Detective Kinavey on the
scientific qualities of the surveillance video recording; and
that counsel was not ineffective for failing to have the
surveillance video professionally analyzed and the quality
enhanced, and for not showing it to the jury at normal, full
speed?
[5.] Did the [PCRA] court err in finding that trial counsel was
not ineffective for failing to utilize the 911 transcript and
surveillance videos showing the movements of the crowd
prior to the final assault on [Appellant] at his vehicle?
[6.] Did the [PCRA] court err in finding that trial counsel was
not ineffective for failing to utilize all available impeachment
evidence in cross-examining Commonwealth witness Shenita
Howard, and in refusing the court’s offer to specifically direct
its jury instruction on prior inconsistent statements to [Ms.]
Howard’s statements?
[7.] Did the [PCRA] court err in finding that trial counsel was
not ineffective for failing to document the extent of
[Appellant’s] injuries at the time of the incident, and the very
real effects consequent upon his subsequent stroke, as they
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affected the manner of his testimony on the stand and his
rehabilitative needs?
[8.] Did the [PCRA] court err in finding that trial counsel was
not ineffective for failing to object to the deficient jury
instruction with respect to the defense of justification?
[9.] Did the [PCRA] court err in finding that trial counsel was
not ineffective for failing to object and move for a mistrial
following improper argument by the prosecution?
[10.] Did the [PCRA] court err in not considering the errors
cumulatively, and not finding that prejudice resulted from
multiple constitutional errors where [Appellant] established
the ineffectiveness claims have merit and that counsel had
no reasonable basis for his acts or omissions?
Appellant’s Brief at 4-5 (some internal capitalization omitted).
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotations
and citations omitted).
Appellant raises ten claims on appeal. Nevertheless (and for reasons
this Court simply cannot understand), Appellant failed to raise any claim that
the PCRA court erred when it denied him relief on his illegal sentencing claim.
We sua sponte raise the illegal sentencing issue, vacate the PCRA court’s order
in part, vacate Appellant’s judgment of sentence, and remand for re-
sentencing.1
____________________________________________
1 We inform Appellant’s counsel that, if we had not raised the illegal sentencing
issue sua sponte and had simply reviewed the specific issues raised on appeal,
we would have affirmed the PCRA court’s order and the PCRA court would not
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As we have held:
Alleyne challenges implicate the legality of a sentence. A
challenge to the legality of a sentence may be entertained as
long as the reviewing court has jurisdiction. An illegal
sentence must be vacated. Issues relating to the legality of
a sentence are questions of law. Our standard of review over
such questions is de novo and our scope of review is plenary.
Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal
citations, quotations, and corrections omitted).
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States
Supreme Court held: “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States Supreme
Court expanded “Apprendi’s basic jury-determination rule to mandatory
minimum sentences.” Alleyne, 570 U.S. at 120 (Breyer, J., concurring).
Specifically, the Alleyne court held that, where an “aggravating fact”
increases a mandatory minimum sentence, “the fact is an element of a distinct
and aggravated crime. [The fact] must, therefore, be submitted to the jury
and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 116.
As this Court has held, Alleyne rendered the mandatory minimum
sentencing statute of 42 Pa.C.S.A. § 9712 wholly unconstitutional.
Valentine, 101 A.3d at 812. Further, in Commonwealth v. Ruiz, 131 A.3d
____________________________________________
have had jurisdiction to grant Appellant any form of relief on the illegal
sentencing claim.
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54 (Pa. Super. 2015), this Court held that an Alleyne claim is a non-waivable
challenge to the legality of a sentence that may be raised for the first time on
direct appeal or in a timely-filed PCRA petition. Ruiz, 131 A.3d at 60; 42
Pa.C.S.A. § 9542 (“persons serving illegal sentences may obtain collateral
relief”). We also observed in Ruiz that Alleyne may be applied retroactively
to cases pending on collateral review so long as the petitioner’s judgment of
sentence was not final when Alleyne was decided. Ruiz, 131 A.3d at 59-60.
With respect to the case at bar, the trial court sentenced Appellant on
February 24, 2011, we affirmed Appellant’s judgment of sentence on
November 29, 2012, and the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal on May 30, 2013. Commonwealth v. Scott,
63 A.3d 840 (Pa. Super. 2012) (unpublished memorandum) at 1-21, appeal
denied, 68 A.3d 908 (Pa. 2013). Therefore, Appellant’s judgment of sentence
became final at the end of the day on August 28, 2013. See 42 Pa.C.S.A.
§ 9545(b)(3) (“A judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States . . .
, or at the expiration of time for seeking the review”); see also U.S.Sup.Ct.R.
13(1). Since Alleyne was decided on June 17, 2013, Appellant is entitled to
the benefit of Alleyne and the instant case does not implicate an
impermissible retroactive application of that case.
Based on our review of the procedural background of this case and the
relevant case law discussed above, we conclude that Appellant is entitled to
resentencing without consideration of the mandatory minimum sentencing
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provision of 42 Pa.C.S.A. § 9712. Therefore, since the PCRA court erred in
dismissing Appellant’s petition raising an Alleyne challenge, we vacate, in
part, the order denying Appellant PCRA relief; vacate Appellant’s judgment of
sentence; and, remand for resentencing.
However, we conclude that the remainder of Appellant’s claims on
appeal are meritless and that the opinion of the Honorable Randall B. Todd,
entered on July 19, 2017, meticulously and accurately disposes of Appellant’s
issues on appeal. Therefore, we affirm the remainder of the PCRA court’s
order on the basis of Judge Todd’s thorough opinion and adopt it as our own.
In any future filing with this or any other court addressing this ruling, the filing
party shall attach a copy of Judge Todd’s opinion.2
Order vacated in part and affirmed in part. Judgment of sentence
vacated. Case remanded for resentencing. Jurisdiction relinquished.
____________________________________________
2 We note that Appellant’s trial counsel did not request a self-defense jury
instruction based upon the castle doctrine. See N.T. Trial, 12/8/10, at 356-
370; N.T. Trial, 12/9/10, at 370-384 and 469-502. Therefore, even if the
relevant amendments to 18 Pa.C.S.A. § 505(b)(2.1) and (2.5) (regarding the
addition of “occupied vehicle” to the castle doctrine) are procedural,
Appellant’s direct appellate counsel could not have been ineffective for failing
to raise the issue, as the issue was waived at the trial level. See
Commonwealth v. Napold, 170 A.3d 1165, 1168 (Pa. Super. 2017) (“in
order for a new rule of law to apply retroactively to a case pending on direct
appeal, the issue had to be preserved at all stages of adjudication up to and
including the direct appeal”) (internal citations and quotations omitted); see
also id. at 1168 n.3 (noting that “[a]n exception to the issue-preservation
requirement exists where the challenge is one implicating the legality of the
appellant’s sentence”) (internal citations and quotations omitted); Pa.R.A.P.
302(a) (“[i]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/2018
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Circulat d 06/19/2018 09:45 AM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY
COUNTY, P
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COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
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vs. 1 Aive
CC NO: 2008-18335
DONALD WILLIAM SCOTT,
APPEAL
Petitioner. OPINION
JUDGE RANDAL B. TODD
COPIES SENT TO:
Counsel of Record for the
Commonwealth of Pennsylvan
Stephen A. Zappala, Jr.
District Attorney
By
Michael Streilly, Esquire.
Assistant District Attorney
401 Courthouse
Pittsburgh, PA 15219
Counsel for Petitioner:
Suzanne M. Swan, Esquire
310 Grant Street
Suite 823
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IN THE COURT OF COMMON PLEAS OF
ALLEGHENY COUNTY, PENNSY VANIA
COMMONWEALTH OF CRIMINAL DIVISION
PENNSYLVANIA,
vs. CC NO. 2008-18335
DONALD WILLIAM scow,
Petitioner.
OPINION
TODD, J.
July 19, 2017
This is an appeal by Petitioner, Donald William Scott, from an
order entered on Jul 19, 2016
denying his PCRA petition. On August 17, 2016 Petitioner
filed a Notice, of Appeal to the uperior
Court. On August, 23,2016 a 1925(b) Order for Concise
Statement of Matters Complained of on Appeal
was entered. After granting a Motion for Extension of
Time to file Concise Statement, Peti loner filed
his Concise Statement of Matters Complained of on
Appeal on November 7, 2016 raising e. following
issues:
"A. The court erred in finding that counsel who represented
Petitioner on direct Teal
was not effective for failing to argue that Petitioner was
entitled to a new tri
under the June 28, 2011 amendments to 18 Pa C S 505(b);
§
B. The court erred in denying' the motion for discovery to
obtain the medical rec rds
of alleged victim William Bennett, and any associated ballistics
reports, inso as
the Petition presented exceptional circumstances under
Pa.R.Crim.P. 902(E),
specifically, that the record supported the Petitioner's belief that the documen
s
would support the theory that Bennett's injuries were the result of
gunfire
originating from a person or persons other than the Petitioner.
C. The court erred in finding that counsel was not ineffective for
failing to objet to,
the hearsay opinion testimony given by non-expert
Detective Kinavey on the
scientific qualities of the surveillance video recording; and that
counsel was ii it
1
ineffective for failing to have the surveillance video professionally analyz=. and
the quality enhanced, and for not showing it to the jury at normal, full sp - - I
D. The court erred in finding that trial counsel was not ineffective for failing t show
the jury the available surveillance video clips showing mass movements o the
mob of teenagers rushing towards and away from the entranceway to the p
premises; and that trial counsel was not ineffective for not presenting evi Ii nce
corroborating the 911 calls made by Petitioner and Medina El prior to the
shooting;
E. The court erred in finding that trial counsel was not ineffective for failing t
utilizeS all available impeachment evidence in cross-examining Commonw alth
witness Shenita Howard, and in refusing the court's offer to specifically d t its
jury instruction regarding prior inconsistent statements to Ms. Howard's
statements;
F. The court erred in finding that trial counsel was not ineffective for failing ti
submit a motion in limine objecting to the prosecution's use of crimen falsi
convictions against defense witness Edric Marthur, which convictions wer stale,
and their prejudicial effect substantially outweighed their probative value;
G. The court erred in finding that trial counsel was not ineffective for failing t
11
present facts showing that Petitioner's ability to perceive what was happem g at
the time of the incident was adversely affected by physical conditions, and or
failing to present the testimony of an expert witness who would have info ed the
jury of the extent and impact of Petitioner's injuries at the time of the incid nt, as
well as how his subsequent stroke affected his speech and behavior during rial,
particularly during his testimony;
H. The court erred in finding that trial counsel was not ineffective for failing t
challenge the deficient jury instruction with respect. tolhe.defense of jnstifi ation
by excluding the word "complW.when:charging.the jury that the use of d dly
force for self-protection is not justifiable where. "the actor knows that he c. avoid
the necessity of using force to complete safety by retreating";
1. The court erred in finding that counsel was not ineffective for failing to obj t.to
the prosecutOr's use of leading questions .during .direct examination of
Commonwealth witnesses Howard and Bennett; and that counsel was not
ineffective for failing to object to.and.move for a. mistrial based on the imp iper.
argument by the prosecutor (1) based' on matters not of record, '(2) express.' ga
personal opinion as to.. the guilt: of the Petitioner, and (3) commenting on th
Petitioner's post-arrest..chOitelo remain silent;
J. Where Petitioner established that the issues raising trial counsel's ineffectiv ness
have merit, and that counsel could not have had a reasonable basis for his o her
respective actions or omissions, the court erred in not considering the errors
2
cumulatively, and finding that prejudice resulted from the multiple consti tional
violations."
BACKGROUND
The factual background concerning this matter and the trial ,testimony"was' review d in the
1925(b) opinion that was filed in this matter on November 15,2011,, and which set for th following:
This matter arises out of ashooting which took place in the early morning hours
November 23, 2008 in a parking lot adjacent to a building owned by Defendant in
Wilkinsburg, Pa. The shooting resulted in the' death of Derrick House and the wo ding,
of Will Bennett. Defendant had rented out a, room in his building for a birthda party
that started at approximately 9:00 p.m. on November 22. (T., p. 257) Although p1 ed
for a group of 30 to 40 young teenagers, many more and much older teenagers arri ed
and were admitted to the party until there was well in excess of 80 people at the p Y.
(T, p. 155) Defendant and other adults assisting him were searching the teenagers or
weapons as they entered and providing security throughout the night. (T.,. pp. 257 261)
The evidence establishes that the party; for the most part, remained orderly. How er, as
the party was ending a large group of the older teenagers were leaving and a fight. rupted
between Defendant and one of the older teenagers,. Troy Cole, over a broken gold hain
necklace being worn by Cole. (T., p. 162) This fight, which started inside the bui ing,
eventually spilled out into the street behind the building and an adjacent parking 1 (T.,
p. 164) Once outside, several of the other teenagers also began threatening or atta king
Defendant, until he was able to retreat back inside the building. Shortly thereafter, Edric
McArthur, one of the adults assisting Defendant, while trying to disperse the grou also
came under attack when he ventured outside the building. Defendant went back o tside
to aid McArthur and again was attacked until he and McArthur could get back insi e.
(T., pp. 169, 184) After remaining inside for at least several minutes, Defendant d ided
to go to his car that was parked in the ,Save :A Lot store parking lot, adjacent to his
building. A video surveillance camera for the store captured the events that follow d,
which were also described by three vvitnesses who were in the parking lot, .Shenita
Howard, Bennett and Cole. Bennett, Who was later Wounded in the shooting, How
and Cole all testified, they saw Defendant running to his car and that a large group, f the
teenagers who' had been lingering nearby saw Defendant and ran at him as he reac his
vehicle. (T., pp. 85, 132, 174) The Commonwealth described it as a group of 15 t 20.
(T., p. 25) The surveillance video dearly shows Defendant running to his vehicle: d the
teenagers converging on Defendant as he reaches his vehicle and struggling with h as
he, closes or attempts to close his door. One of those running towards: the vehicle as the
victim, House. The witnesses further testified that someone then yelled that Defen ant
had a gun. (T, pp. 87, 132, 174) At that point, some of the attackers, including H use,
3
can be seen on the video running from Defendant's vehicle. Within seconds, at 1 t 3
shots were fired by Defendant, one of which struck House as he was running with his
back to Defendant approximately 40 feet away. (T., pp. 217, 224) The bullet, wh ch was
believed by the medical examiner to be a high velocity bullet such as a .44 caliber struck
the back of the victim's head resulting in his death. (T., pp. 42-45) The medical
examiner also testified that there was no evidence of gunshot residue, soot or stipl g
which would indicate that House was at close range when shot. (T., p. 42) Bernie t, who
was running down Penn Avenue, was shot in his leg, shattering his femur, and . (T.,
pp. 135-140)
Howard .tettified,that after seeing House shot, she saw Defendant standing 'r
pacing outside his vehicle with a silver handgun and then he reentered his vehicle: d
pulled out from the parking. lot.. (T., pp. 89-9:1) As Defendant pulled out of the p king
lot Sgt. Henry Singer of the Wilkinsbnrg Police Department, who received a dispa ch
about.a disturbance, at 12:20 a.m., pulled. into the parking lot. As he had been
approaching the scene, Sgt. Singer heard 4 or 5 gait shots: (T., p..50) He identifie the
video from the surveillance camera which showed Defendant's vehicle pulling out as
pulled into the lot: The video then showed Sgt. Singer approaching the as e lay
in the parking lot. .(T., p. 52) Sgt. Singer testified that he secured the area and late
searched for evidence but found no ahell'easings,.bao., guns or other physical e iderice,
p. 53).
The Commonwealth called Officer Rory McLaughlin, a Department of Ve rans p
Affairs police officer, who testified that at approximately 3:00 a.m. on November 3 he
was dispatched to the VA Hospital by emergency room personnel because Defend nt had
come to the hospital saying he was involved in an incident in which shots were fir .d and
he was injured. McLaughlin was dispatched to search Defendant for weapons. (T ; p.
192) McLaughlin testified that he spoke with Defendant and Defendant described eing
attacked twice, the second time at his car, and that he then left the scene and he m t have
"passed out." (T., p. 194) Defendant did say that shots were fired, however, did n t tell
McLaughlin that he had fired a gun that night. (T., p. 194) He also told McLaugh in that
he had not called the police, but that he needed to call to report the incident. (T., p 195)
McLaughlin found Defendant's cell phone on him, but no weapons. (T., p. 195)
McLaughlin also testified that video surveillance at the hospital showed that Defe ant
entered the hospital at 2:50 a.m. (T., p. 199)
Defendant was subsequently interviewed by Detective Thomas DeFelice o the
Allegheny County Police at approximately 4:30 a.m. Detective DeFelice testified sat
Defendant described the events that night, but stated that "while he was being attac ed he
heard three or four gunshots. He was able to kick a male off of him and he made it to his
truck. He put his truck in reverse and drove away." (T., p. 234) He then said that he
4
blacked out but dmied firing.agun. (T., pp. 234-235) When informed that a guns ot
residue: test could be performed, Defendant told the Detective that he was cleaning his:
gun earlier in the day:. (T.,. p. 236) At trial, Defendant denied owning or. posses$ili any
handguns. (T., pp. 293-294)
The Commonwealth called Detective Matthews of the Allegheny County P lice
who testified that he conducted a search of Defendant's house and vehicle, finding some
ammunition for handguns, including a .44 caliber cartridge on the passenger's side of
Defendant's vehicle, as well as a magazine and a grip for a handgun. However, no
handguns were found. (T., pp. 204-208)
The Commonwealth also called Detective Kinavey of the Allegheny Count
Police who identified a digital sketch and measurements made of the scene of the
shooting which showed that House was 41 feet, 9 inches from Defendant's vehicle when
he was shot in the back of the head. (T., pp. '217,224) He also testified that State olice
gun license records showed that Defendant was not licensed to carry a firearm. (T. p.
218)
At the conclusion of the Commonwealth's case, a colloquy was conducted ith
Defendant regarding the fact that he was not required to testify and Defendant
acknowledged that he wished to testify in his defense. (T., pp. 254-255) Neither a that
time, nor at any time prior thereto, did Defendant or his counsel indicate that Defe ant
was suffering from any type of disability which affected his ability to participate in or
consult with counsel concerning his defense. Defendant acknowledged that he wis ed to
testify in his defense. (T., pp. 254-255)
Defendant testified that he owned the building where the party took place f. r 15
years. (T., p. 257) He rented the room for the party, which was to be for 30 to 40
children between the ages of 11 to 14, and that he asked Edric McArthur, among o ers,
to help him with the party. (T., p. 258) The party started at 9:00 p.m. Defendant d
McArthur patted down the teenagers for weapons as they entered the party. (T., p. 60)
Defendant testified that as the party was concluding he got into a confrontation wi Troy
Cole about his gold chain and during the argument, Cole and three other teenagers
jumped him. (T., p. 265) He said his attackers then ran outside and he shut the do
(T., p. 266) However, McArthur went outside to disperse the group and he then sa
them beating McArthur so he went outside to assist McArthur and was attacked ag
until he and McArthur were able to get back inside. (T., p. 267) He then waited ab ut 10
to 15 minutes and then went outside to get his truck to get some of the younger chil n
home and to get medical attention for himself and McArthur. (T., p. 268) As he we t to
his car, he saw a large group of teenagers running at him and screaming that they w re
going to kill him. As he got to his truck they were grabbing, hitting and pulling hi . (T.,
5
p. 269) He testified that he didn't have a gun, but as he struggled, "One of them at was
standing right directly in front of me, he was grabbing to (sic) my sweater. The n came
out of his coat." (T., p. 269) At that time he instinctively grabbed for the gun at hich
time it went off. He described it as a black revolver. (T., p. 271) He then testifie that
he recalls shooting the gun at least one more time and when he did his attackers,' ere
just there, in front, everyone still. It was just a split second." (T., p. 275) He test fled
that he thought his life was in danger but he didn't try to shoot anyone. (T., p. 27 )
Defendant testified he then went to a friend's house and then to the VA Hospital ir what
he described as a gash on his head, bruises and contusions to his face and defensi e
wounds on his hands, back, and both legs. (T., p. 278) In the attack Defendant al o
sustained or aggravated a hernia that required surgery and he subsequently suffer- a
stroke for which he was in rehabilitation. Defendant testified that because of the oke,
he had "aphasia", which affected his speech, thinking, and his ability to read and rite.
(T., p. 279)
On cross-examination, Defendant denied seeing the police coming onto th scene
as he drove away. (T., p. 283) Defendant stated that he did not go straight to the ospital
because he blacked out. (T., p. 291) He denied the gun was his or that he owned y
handguns. (T., p. 293) He testified that he believed that he dropped the gun used n the
shooting in the parking lot. (T., p. 297) He explained the ammunition in his vehi le as
ammunition that was transferred from one car to another and that may have been s
wife's or someone else's.
The defense also called Edric McArthur who also testified to the fights an
encounters with the teenagers inside and outside the building. (T., pp. 308-311)
However, McArthur did not see or hear the shooting in the parking lot. (T., p. 31
The defense also called Medina El, who had rented the room from Defend t for
her child's 14th birthday party. (T., p. 326) She confirmed the fact that Defendant and
McArthur were beaten up and that the teenagers outside were threatening and sayi g
"they had guns." (T., p. 328) She called 911 because of her fear of the crowd ou 'ide.
She also believed that Defendant was going to his vehicle to help take some of the
younger children home. (T., p. 330)
The defense also called Vlossie Long, Defendant's friend, who testified th
Defendant came to his house about 1:00 to 1:30 a.m. and he appeared to be "a littl bit
beat up." (T., p. 337) He said Defendant kept saying that they "jumped me." (T.,
339) He stated that Defendant stayed about 15 minutes and Long told him to go t the
hospital. (T., p. 343)
The defense also presented character testimony through Long and Chris Su livan,
who testified to Defendant's long involvement in a boxing program in the area whi
6
benefited the young people of the community. (T., p. 355) After being appropriat ly
instructed, the jury found Defendant guilty of voluntary manslaughter, aggravated ssault
and carrying a firearm without a license. This timely appeal followed.
DISCUSSION
Petitioner filed a PCRA Petition on August 22,2014 and an Amended PCRA Petit on aniline
16, 2015. The Commonwealth filed an Answer to the PCRA Petition on October 29, 201 and a
Supplement to Answer to PCRA Petition on April 8, 2016. Petitioner's PCRA Petition an Amended
PCRA Petition included Exhibits A through R, which included an expert report regarding he
enhancement and analysis of the surveillance video. It was stipulated prior to the hearing at the expert
report would be offered into evidence without the necessity of the expert testifying. At th PCRA
hearing Petitioner presented the testimony of his physician, Dr. Susan Hoppe; trial counse Mr. William
Brennan; and, appellate counsel, Wendy Williams. Petitioner did not testify. The Comm wealth
presented the testimony of the prosecutor, Ilan Zur, Petitioner now raises several claims .o error in
failing to find that trial and appellate counsel provided Petitioner. ineffective assistance :of ounsel both
at trial and on appeal.
In order for Petitioner to be entitled to relief On the basis that trial counsel was inef ectiVe,.
Petitioner must show by a preponderance -of the evidence ineffective assistance of counsel hich, in the
circumstances of the particularcase, so .undermined the truth -determining process that nor liable
adjudication of gUilt or innocence could have taken place. Commonwecath.v..Brqdy,..741 *A 2d. 758, 763
(Pa. 'Super. 1999) This standard requires Petitioner to show: (1) that the claim is. of argua le merit; (2)
that counsel had no reasonable, objective basis for his actions;.and(3) that, but for the erro s or
omissions of counsel, there is a reasonable probability that the outcome of the proceedings. ould have
been different, that is, that the petitioner was prejudiced by the. alleged ineffectiveness of c
7
Commonwealth v. Kimball, 724 A.2d 326,333 (1999). Counsel is presumed to be effeeti e, 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 denie 594 A.2d
658:,(1'991). lf a petitioner fails to meet any one of these tluee prongs, then an evidentiar hearing is not
necessary. Commonwealth V. Wells, 578 A.2d 27, 32 (Pa. Super. 1990)
Generally, counsel's assistance is deemed constitutionally effective if he 'chose ',a p 'cular
course of conduct that had some reasonable basis designed to effectuate his client's intere 'Where
matters of strategy and tactics are -concerned, a finding that.a.chosen. strategy lacked area.' onable basis .is
not warranted unless it can be concluded that an alternative not chosen offered a potential or success
substantially greater than the course, actually pursued. To demonstrate prejudice, the petiti ner must
show that "there is a reasonable probability that, but for counsel's unprofessional errors, e result of the
proceedings would have been different." Commonwealth v. King, 618 Pa. 405,57 A,3d 6 , 613 (2012)
(quotation, quotation marks, and citation omitted)." lik] reasonable probability is a prob ility that is
sufficient to undermine confidence in the outcome of the' proceeding.' " Commonwealth Spotz, 84
A.3d 294, 311-12 (2014)
Petitioner first claims that appellate counsel was ineffective for failing to argue on ppeal that
Petitioner was entitled, to 'a new trial as a result of the June 28, 2011 amendments to the la in
Pennsylvania dealing with self defense. On June 28, 2011 Act 10 of 2011 (P.L. 48) was s gned into law
amending 18 Pa. C.S.A. §505(b) dealing with self defense or the castle doctrine in Permsy vania. The
amendments to Act 10 were to take effect in 60 days on August 29,2011. Defendant's tri was held
from December 7 to December 9; 2011 and his appeal to the Superior Court was filed on arch 30,
2011. Appellate counsel filed Petitioner's Amended Brief for Appellant in the Superior C urt on
Feburary 24, 2012. The brief did not address the amendments to §505. Defendant conten that the
8
amendments to §505, specifically the addition of subsection (b)(2.l) and (2.5), should be pplied
retroactively to his case as it was still pending on appeal on the effective dates of the ame dments and
appellate counsel was ineffective for failing to raise the issue that the amendments were 'à. basis for a
new trial. The Commonwealth argues that the amendments should not be applied retroacii vely as the act
did not expressly state that it was retroactive.1 In addition, even if they were to be applie retroactively
Petitioner failed to establish prejudice because regardless of the amendments; Petitioner's se of deadly
force under the circumstances was not reasonable, even if the amendments established, th: the castle
doctrine applied to an actor's "occupied vehicle." Finally, the Commonwealth argues that appellate
counsel did challenge the sufficiency and weight of the evidence on appeal arguing that P titioner had a
reasonable belief that he was, in danger of death or serious bodily injury and that the amen ments to
§505 would not have altered the appellate arguments.
The amendments to the: §505, specifically the addition of subsection ()(2.1) and ( .5),
established a presumption that a person using deadly force had a reasonable belief that de ly force was
immediately necessary to protect himself against death or serious bodily injury if the pers n against
whom the force was used was, in the process of unlawfully and forcefully entering, or had unlawfully
and forcefully entered and is present within, a dwelling, residence or occupied vehicle. In addition, the
amendments added the presumption that a person who unlawfully and by force enters or a empts to
enter an actor's dwelling, residence or occupied vehicle or removes or attempts to remove other
against that other's will from the actor's dwelling, residence or occupied vehicle is prestmi d to be doing
so with the intent to commit an act resulting in death or serious bodily, injury. The amend ents at issue
provide as follows:
"No statute shall be construed to be retroactive unless clearly and manifestly so intended y the
General Assembly." 1 Pa.C.S.A. § 1926
9
(a) Use of force justifiable for protection of the person. --The use of force upon
toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of unl wful
force by such other person on the present occasion.
(2.1) Except as otherwise provided in paragraph (2.2), an actor is presumed have
a reasonable belief that deadly force is immediately necessary to protect him if.
against death, serious bodily injury, kidnapping or sexual intercourse compelle by
force or threat if both of the following conditions exist:
(i) The person against whom the force is used is in the process of unlawfully d
I
forcefully entering, or has unlawfully and forcefully entered and is present with' a
,
dwelling, residence or occupied vehicle; or the person against whom the force is sed is
or is attempting to unlawfully and forcefully remove another against that other's w 11 from
the dwelling, residence or occupied vehicle.
(ii) The actor knows or has reason to believe that the unlawful and forceful entry act is .
occurring or has occurred.
(2.5) Unless one of the exceptions under paragraph (2.2) applies, a person who
unlawfully and by force enters or attempts to enter an actor's dwelling, reside ce or
occupied vehicle or removes or attempts to remove another against that other' will
from the actor's dwelling, residence or Occupied vehicle is presumed to be doing so
with the intent to commit:
(i) an act resulting in death or serious bodily injury; or
(ii) kidnapping or sexual intercourse by force or threat.
18 Pa.C.S.A. § 505 (Emphasis added)
The Supreme Court addressed the retroactive application of §505(b)(2.1) in Commonweal h v. Childs,
142 A.3d 823 ( 2016). In Childs the Court considered the question of whether or not Chil s was entitled
to a castle doctrine jury instruction pursuant to 18 Pa.C.S.A. § 505(b)(2.1), which became ffective after
Childs was charged with the crimes at issue but prior to his trial on those charges. The a licable facts
and procedural history in Childs are that in November 2011, Childs was tried for murder d possessing
an instrument of crime after he stabbed the victim who was attacking him with a broomsti k in Childs'
home. The victim and Childs were'arguing outside Childs' home. Childs then went insid his house and
the victim entered Childs' home, who was attempting to hold the screen door to the house losed, and hit
Childs several times with a broomstick. Childs grabbed a knife and stabbed the victim on e in the chest
but he died from the wound and Childs was arrested and charged with homicide and posse sing
10
instruments of crime. At the first trial Childs was convicted a possessing instruments of rime but the
jury deadlocked on the homicide charge. In November 2012,. Childs was tried again on th homicide
charge. The Supreme Court noted that
At both trials, Childs claimed that he acted in self-defense and requested a castle: octrine
jury instruction in conformance with section 505(b)(2.1), providing that the e is a
presumption that he had a reasonable belief that deadly force was immediately ne essary
to protect himself from, serious, bodily injury or death because he was attacked in ide his
residence. MT., 11/10/2011, at 4-5; N.T., 11/16/2012, at 28-29. In respon e, the
Commonwealth did not dispute that the facts of the case entitled Childs to castle
doctrine defense; but objected to Childs request on the basis that, section 505(bX .1) did
not become effective until more than a year after Childs stabbed Victim, and that giving
the instruction would be an improper retroactive application of a substantive la . N.T.,
11/10/2011, at 6-7, N.T., 11/16/2012, at 29. The trial court refused Childs' re est at
both trials. On November 16, 2012, Childs was convicted of third-degree murder e was
subsequently sentenced to a term of sixteen to thirty-two years of imprisonment or the
murder conviction and a consecutive term of five years of probation on e PIC
conviction. Commonwealth v. Childs, 142 A.3d 823,,825-26 (Pa. 2016)
On appeal, the Superior Court found that the trial court erroneously concluded that provid g the jury
instruction would have been a retroactive application of the applicable law and reversed th judgment of
sentence and remanded the case for a new trial, Commonwealth v. Childs, No. 272 EDA 2113, 2014
WL 10788813, (Pa. Super. Ct. Nov. 10,2014), affd 142 A.3d 823 (Pa. 2016) In reviewin the Superior
Court's opinion, it was noted that the sole question before the Superior Court was whether e trial court
correctly concluded that section 505(b)(2.1), should not be applied retroactively. The issue before the
Court was whether the amendment, adding the presumption in 505(b)(2.1) was a procedura or
substantive amendment. Noting the Superior Court's statement that "the law of retroactivity is, less than
a model of clarity" the Court stated:
The Superior Court began by recognizing that "a statute is impermissibly retroacti e if it
'attaches new legal consequences to events completed before its enactment. Retroa tive
application occurs only when the statute or rule relates back a.nd gives a previous
transaction a legal effect different from that which it had under the law in effect wh n it
transpired.' " Commonwealth v. Childs, 272 EDA 2013, 2014 WL 10788813, *7-8
(Pa.Super. Nov. 10, 2014) (quoting Commonwealth v. Robinson, 7 A.3d 868, 871-
(Pa.Super.2010)). The Superior Court further recognized that concerns of impermis ible:
.11
retroactive application arise only where the law at issue
impairs a vested right or
contractual obligation. Id. at 8 (citing Commonwealth v. Johnson 520 Pa.
1654 55 A.2d
897 (1989)).
The Supreme Court noted that although the castle doctrine
existed at common law in Pe ylvania since
its founding, it was not codified in Pennsylvania
until 1972, with the enadtment of 18 Pa. A. j:505.
The Court further stated that §505 codified existing
case law pertaining to self-defense an was intended:
to set forth in a. single rule the law governing the use of
defensive force and that the legisla ure
emphasized that §505 made no substantial change to the
existing law. Childs at 829 (Pa. 2 16)
Regarding the amendments to §505 enacted in 2011, the
Court stated:
This statute remained =changed until the passage
of Act.10 on June 28, 2011. The
preamble to Act 10 explains that its purpose was to
strengthen the right of self-defe e.
See H.B. 40 139th Gen. Assemb., Reg. Sess.
(Pa.2011). In so doing, however, Act 0 did,
not substantively alter the law regarding the use of
deadly force within a residence,
Commonwealth v. Childs, 142 A.3d 823, 829 (Pa. 2016)
In addressing the amendment adding subsection
(2.1) the Court stated:
The presumption created by section 505(b)(2.1)
codifies the inference between -rtain
basic facts (an unlawful and forceful entry and
knowledge thereof, as descri d in -
subsections 505(b)(2.1)(i) and (ii)), and an element of
a castle doctrine defe se (a
reasonable belief that deadly, force is immediately
necessary). Both before and aft r the
enactment of section 505(b)(2.1), a finder of fact
could make this inference, and s ction
505(b)(2.1) merely provides the factfinder with an
evidentiary mechanism to as St in
evaluating the merits of making this inference based upon
the specific facts presen ed in
the case. We note that the current standard jury
instruction directs the jury to "[clo ider
the realities of the situation faced by the
defendant ... when you assess wheth r the
Commonwealth has proved beyond a reasonable doubt
either that [the defendant] d not
believe [he] was actually in danger of death or serious
bodily injury ... or that, whil [the
defendant] did believe that, [that] belief was
unreasonable' Pa.SS.11 (Crim) § 9. 01A
(2012). Commonwealth v. Childs, 142 A.3d 823,
830-31 (Pa. 2016)
It was noted that the Superior Court concluded that
section 505(b)(2.1) did not alter a defen t's rights
concerning claims of self-defense premised on actions
in the home. It reasoned that section 05(b)(2.1)
only "addresses a method of enforcing th[e] right of
self-defense" and is therefore procedur . Because
there is no prohibition on the retroactive application
of a procedural statute, the Superior Co reasoned,
Childs was entitled to a jury instruction regarding
the castle doctrine. On that basis, it vacate' Childs'
12
judgment of sentence and remanded for anew trial. The Supreme Court, affirming the Su - dor Court,
found that:
Section 505 (b)(2.1) does not, as the Commonwealth contends, broaden the right of the
accused when, asserting a castle doctrine defense. Commonwealths Brief at 14. To the
contrary, both before and after the enactment of section 505(b)(2.1), a defend t was
justified in using deadly force' if he or she was not the initial aggressor and had a
reasonable belief that such force was necessary to protect against death, serious bodily
injury, kidnapping, or sexual intercourse compelled by force or threat, and a de endant
had no duty to 'retreat when attacked in his or her dwelling. Likewise; both befi re and
after the enactment of section 505(b)(2.1), the Commonwealth could overcome a c aim of
self-defense under the castle doctrine by establishing that the defendant did not tually
possess the requisite fear or that the defendant's belief was not reasonable. In s m, the
section 505(b)(2.1) presumption does not alter either the elements of a castle I, ctrine
defense or the historical right to use deadly force in one's horne. Instead, it prov des an
evidentiary mechanism to aid in the factfinder's evaluation of the merits of castle
doctrine defense. Conimonwealth v. Childs, 142 A.3d 823, 831-32 (Pa. 2016)
The Court further stated:
Having determined that section 505(b)(2.1) is a procedural statute, the Common ealth's
remaining arguments are rendered moot. As a procedural statute, section 505( )(2.1)
applied to litigation pending at the time of its enactment as well as litigation co enced
following its enactment. Estman, 915 A.2d at 1194. Both of Childs' pros utions
commenced after the enactment of section 505(b)(2.1), and so Childs was entitl d to a
jury instruction in conformance with section 505(b)(2.1). Commonwealth v. Chile s, 142
A.3d 823, 83:5 (Pa. 2016)
It was noted that the Childs was entitled to jury instructions pursuant to 505(b)(2.1) becau e that section
became effective prior to Childs' trials. The Court stated:
As section 505(b)(2.1) was effective at the time of Childs' trials, there is no specter if
improper retroactive application. The statutory evidentiary presumption was in effe t at
the: time of his trial. Retroactivity concerns would arise only if 'a defendant rais
self-defense based on the castle doctrine at a trial prior to August 29, 2011 (the
effective date of section 505(b)(2.1)), and then filed a post-trial motion after A ust
29, 2011, arguing that he was entitled to section 505(h)(2.1) jury instruction at is
trial. That is not the case here. Commonwealth v. Childs, 142 A.3d 823, 833 (Pa. 016)
Based on the foregoing holding in Childs, Petitioner is not entitled to relief on his claim th counsel was
ineffective for failing to raise and argue the amendments to §505(b) on appeal. The Court etermined
that a jury charge regarding the presumption created in 505(b)(2.1) would only be retroacti e to a case in
13
which. a defendant raised a .claim of self defense.based on the castle doctrine in a. trial occ ing"prior' the
effective date Of the act, that is.August.29, 2011. As Petitioner's trial commenced on.Dec tuber 7,. 2010
and the jury returuedits verdict on December 9; 2010.1jefendantwas not entitled to: inst tions based
On.the amendments. to 005(4 Furthermore; to', the extentihat Petitioner argues that he:: as entitled to
an instruction based on the expansion of the casfiedoctrine to'SpecifiOallyincludean "0c :pied vehicle,"
it would appear' that this provision constitutes a substantive amendment which, pursuant t' the holding
in.Child4 would notbe: applied:retroactively.
At the PCRA hearing appellate counsel acknowledged that she did not raise or ar ue the
amendments to §505(b) on appeal stating that:
My reading of the statute and my understanding of the application of the, statute 'w,. s that
although it codified the common law as to the Castle Doctrine which may apply to people
M Mr. Scott's situation, that the statute itself was not retroactive and could not be plied
retroactive because it was not expressly written into the statute that it had retroacti e
application. (T, p. 70)
Based on the decision in Childs, Petitioner was not entitled to anew trial based on the retri active
application of the amendments to §505(b) to Petitioner's trial held in December 20:10. Co sel will not
be deemed ineffective, for failing to raise a meritless claim. Commonwealth v. Tilley, 566 a. 312, 780
Aid 649(2001');
The Commonwealth also argues that even if the amendments were applicable, Peti loner has
failed.todemonstrate prejudice because the "underlying issue-that Petitioner reasonably b ieved that he
'needed to, tire, his gun in order'to avoid death.or serious bodily harm" is not 'affected by thi.
amendments. The.: COMmonwealtli argues that, appellate counsel challenged the sufficiene and weight
of the evidence on appeal Specificallyarguing:that.Petitioner had.a.reasonable belief that h was in
danger of death .or serious bodily injury. at the time thathe fired :the. shots. The:Commonw Ith further
argues that the Superior Court found that there w.as sufficient basis for the jury. to reject Pe 'tiotieris
14
defense claim and the amendment to §505(b) do not alter or affect this conclusion. As n t4 by the
Supreme Court in Childs:
The presumption created by section 5050)(2.1) codifies the inference between Certain
basic facts (an unlawful and forceful entry and knowledge thereof, as desc 'bed in
subsections 505(b)(2.1)(i) and (ii)), and an element of a. castle doctrine de rise (a.
reasonable belief that deadly force is immediately necessary). Both before and ter the
enactment of section 505(b)(2.1), a finder of fact could make this inferen e, and
section 505(b)(2.1) merely provides the factfiader with an evidentiary mecha ism to
assist in evaluating the merits of making this inference based upon the speci c facts
presented in the case. Commonwealth v. Childs, 142 A 3d 823, 830-31 (7016).
(Emphasis added)
hi this case the Commonwealth conceded that at the time Petitioner was attacked e had a
reasonable belief that he was in fear a his life. (T., p. 25) Therefore, the issue of the pre mption in the
amendments to §505 were not at issue. Consequently; Petitioner has failed to establish pr judice.
Petitioner's second allegation of error is that the. Court erred in denying his motion for discovery
to obtain the medical records of William Bennett which were no longer available because e
Commonwealth lost its file and could not produce the records and trial counsel did not ha e a copy of
the records in his file. In his motion Petitioner alleged that counsel was ineffective for fa ing to pursue
the possibility that Bennett was injured as a result of shots fired from another gun other th that fired
by Petitioner. Petitioner: argued that there was certain evidence that tended to establish th Bennett's
wounds were not consistent with being shot by a gun fired by Petitioner ancl that he shout have been
permitted to obtain Bennett's records leave the belief that there may be information in the ecords that
might buttress his theory of other shooters. Petitioner further asserts that his motion for di covery to
obtain Bennett's medical records directly from the hospital should have been granted as th re were
exceptional circumstances to permit the discovery pursuant to Pa.R.Crim.P. 902(E) which provides:
p Except
Requests for Discovery
(1) provided
as in paragraph (E)(2), no discovery shall be permitted at any tage
of the proceedings, except upon leave of court after a showing of exceptional
circumstances. Pa. R. Crim. P. 902(E)(2)
15
Petitioner"asserts that there is evidence that supports his theory ,'and warranted the r quested
discovery. The first is that a supplemental police report of Patrolman Gilbert Stubbs of th Wilkinsburg
Police Department indicates that he arrived pn scene at 00:23 and was asked by Sergeant 'I ger to
attend to Bennett. Stubbs describes encountering Bennett laying on the sidewalk "directly cross the
,;
street from the parking lot, area" and that Bennett indicated he had been shot and that he w "found to
have a small puncture wound just above his right knee with another to the inside of his, left wrist."
(PCRA Petition, Exhibit "F") Petitioner contends that the fact that Stubbs describes Benne t's wound as
a "small, puncture wound" contradicts, the: Commonwealth's theory that Petitioner used al.ge caliber
handgun, such as, a .44 Magnum. However, while, the Commonwealth argued the gun was .44
Magnum, the gun, which Petitioner testified he wrestled from one of his attackers and then dropped in
the parking 'lot after he, shot it, was never recovered.
During trial the Commonwealth called Detective. Matthews of the Allegheny Count Police who
testified that he: conducted a search of Petitioner's house and vehicle and found some amm r
ition for
handguns, including .44 Magnum cartridges in the Petitioner's house and vehicle, as well a' a magazine
and a grips for handguns. In addition, the medical examiner testified that House's fatal wo nd was
consistent with a. .44 Magnum bullet. (See Commonwealth Exhibit 1 which demonstrates small
puncture wound to the back of House's head.) The fact that Patrolman Stubbs characterize' one of
l3ennett's wounds as a small puncture wound is of little significance and does not support e theory that
someone else shot Bennett. The evidence was used to contradict Petitioner's assertion that e (lid not
own any handguns. (T., pp. 204-208)
Petitioner next contends that Bennett was on Penn Avenue and not in the direction 1 the two
muzzle flashes from Petitioner's gun,and Bennett was not, as the, other victim was, specific ly identifierl
16
in the video. As noted above, Patrolman Stubbs described Bennett as being found on th sidewalk
directly across the street from the parking lot and there is no evidence that Bennett was s far beyond the
range of Petitioner's gun fire that he could not, possibly have been, struck when Petitioner fired the gun.
In addition, the fact that Bennett may have not been in the line of fire of the two muzzle ashes from
Petitioner's gun actually captured on the video does not preclude the fact that there may 'h ve been other
shots fired by Petitioner that simply were not captured on the video. As will be discusse in more detail
herein, Petitioner's video expert,. Lars Daniel, concludes after analyzing the video that:
There .are two apparent. muzzle .flashes in the -video at the. fifth frame .at 00:1938 d the *
first frame of 0O:19;39 With the 'low frametate.of the recording, the only thing th t can
be determined from the video. is that two shots were.fired by the..defendant. It* not be
determined if additional sbots. were tired by the.defendant,...or if shots were fir d by
another person'and those muzzle.flaSlieS werebbscured via the environment, oats' e the
lense (sic) of the camera, or not captured by the camera due to the low frame rate. June
10, 2015 Video Forensics Report, Amended PCRA Petition, ..Exhibit "Q," pi 2)
(Emphasis:..added).
There is 'no support in the video. for -the 'theory that some else was.. firing.a.gun. In fact, di analysis of
the video includes the possibility that Petitioner fired all the shots that. were heard' by the . itnesses.
Petitioner's contention. that there were one'or:more other persons 'firing, a gun at thetinie. at. Bennett.
was shotis 'speculation.
Atthe.PCRA hearing triat.cottnsel testified that he had reviewed Bennett's medica records and
did not:see, anything. that.Was relevant to the iSsue of ballistics or whiCh wouldca.use, him s believe that
there' were ballistic issues. Counsel testified:
I know I had reviewed the medical records of ,Mr. Bennett I recall that the
Commonwealth offered to give me a copy of those, and the file at that point was s
copious I chose not to. 1 reviewed them twice. As I read them, I don't recall any
evidence as to what the ballistics were as far as entry and exit. Idont believe the was
any opinion as to what form of handgun would have caused the damage that result d in a
broken femur to the victim. 'I believe he was also shot in the arm. (T., pp. 25-26)
As stated in Commonwecdth v. Reid, 99 A.3d 470 (2014):
17
A. showing of .good cause requires more .than a generic demand for pot ntially
-
exculpatory. evidence; Tather,.. discovery requests in the PCRA. setting m St be
accompanied by an. explanation why the exculpatory information was unavailable prior
counsel and must identify specific documents or items that were not disclosed pre ial or
.
dining trial. proceedings.. Commonwealth v. Carson, 590 Pa.:. 50.1,. 913 A.2d 2 I, 261
(2006) ..("a.. PCRA petitioner.. is not entitled to discovery where he has. not sho n the
existence of requested documents, as speculation that requested documen s will
uncover exculpatory evidence. does not satisfy .the requirements of Rule 902( )(2)"),
Commonwealth v: Reid, 99. A30 470, 498 (2014)
This is nota cage in Whithit is. all6ged that the Commonwealth'failed' to produce relevant. cords or*
documents prior 'to trial or that trial counsel.didnot even.conduct an. examination the re. Ords: Here'
trial counsel.revieWed.the records and determined that the.tecords.:.dictriot.provideArty.evid ce that was
relevant to the case. Petitioner's claim. that the medical records May develop evidence on, e issue. of
causation of Betmett's, injuries is 'speculative and did not .warrantdiscovery pursuant toPa.
902(E), therefore, and the motion for discovery was appropriately denied.
Petitioner next.alleges that dial:counsel:was ineffective in three respects related to 'e
surveillance video. Petltioner. first contends that counsel was ineffective in. failing to objec to.hearsay
1
and expert testimony by Petectivelcinavey explaining how the video' recorded,: or did.
not:r Cord, certain
events with particular'reference *to themuzZle flashes. Petitioner cites the following trial te
timony of
Detective.Kinavey.:
Q. Did you. hear Witnesses indicate there were between four and.five gunshots
A. Idid, .yes.
Q. Did you review the Video..and still 'images?'
A. I did.
Q.. How mariyMuzzle flashes were.. you able.to,identify with certainty?
A. 'Two.
18
Q. And based on your understanding of how these surveillance cameras work,
is there any possible explanation as to why they didn't capture perhaps all of e
muzzle flashes, all of the gunshots?
A. Yes; It was explained to me.
.Q. And. what was that?
A. The explanation given to me was that the way the video captures is it's not like a
video camera that you would have at home where it captures every event. It rapt es
different images. Like, you might see a person take a step. Then he might two
-
steps ahead.
Even on the motion sensor, it just doesn't have the pixels to capture each
individual frame of each individual event. So you may lose like a millise ond. of
each event due to the complexity of the surveillance video as well as the video b ing
guess what they indicates was: it's a large file. So they try. That's why they aVe, it:
on motion sensor as well as collecting the individual different frames. (T., p . 225-
226)
Petitioner contends that counsel was ineffective in failing to object to this testimo y because that
the explanation as to how the video records or captures the movement on the video is ex rt testirnony
that Detective Kinavey was not qualified to give. In addition, as Detective Kinavey state', the
information he was testifying to was "explained" to him and his testimony was clearly he ay.
Petitioner argues that counsel was ineffective in failing to object to Detective Kinavey's testimony and it
was "clearly prejudicial given counsel's intention to argue to the jury the likely presence o shooters
other than Petitioner." (Memorandum in Support ofAmended Petition for Post Convictio Collateral.
Relief, p. 27)
A review of all of the trial testimony concerning the video indicates that these tech ical aspects
of the videos were never in dispute and trial counsel testified at the PCRA hearing that he ade the
decision not, to object to Kinavey's testimony for that reason. At the PCRA hearing cowls I testified:
Well, number one, it, was, there's no doubt about it. I chose not to object at that time.
I had viewed the tape multiple times. I had discussed the tapes with County Police I had
discussed the tapes with the prosecutor involved in that case, and what was being s id is
of course what I was told during the frequent times that I saw those tapes. I knew hat
19.
was going to be said. It seemed to be useless to bring in at that point in time n
expert to testify to what the detective was actually going to say. So, once aga , was it
hearsay, yes, and I chose not to object to it. (T., p. 20) (Emphasis added)
Regarding the question of whether or not Detective Kinavey's testimony was harmful or
prejudicial, trial counsel testified:
Q. Did you consider Detective Kinavey's testimony on this point to be harmfu , that
there were four or five gunshots but the video only showed two of them?
A. Frankly, no. My position was that indeed the defendant I knew was going o take
the witness stand, and he had said at all times, and had said on the witness tand,
there were two shots fired. Obviously we had three to four witnesses testif ing
hearing somewhere in the range of four to five shots fired. Having seen th tape,
we know indeed two gunshot flashes were seen which meant what happen to
the other three which was not shown by that tape. In essence the argument would
have been that those gunshots may have been by the victims or friends of e
victims or whatever else, so I did not see that as per se harmful. (T, pp. 2 21)
On cross examination of Detective Kinavey at trial, trial counsel established that based on is
description of the mariner in which the video was recorded that, in fact, there could have b n two or
three shots fired before the muzzle flashes attributed to Petitioner and that it could not be scertained
"scientifically" the order of any shots that the various witnesses, including Petitioner, testi led they
heard. Regarding the number of shots, trial counsel testified at the PCRA hearing that:
"I recall the detective being on the witness stand and asking him very, very specificsally if
there was any scientific way one can detennine if my client fired any more than tw
shots, and his answer was no." (T., p. 24)
Counsel also pointed out that:
"I outlined to the jury witnesses who claimed that these youth were yelling outside: we
have guns, plural, we have guns. I emphasized the fact that five shots are heard an only
two arguably can be attributed to my client, . . . " (T. p. 25)
In fact, Kinavey's testimony could be used to buttress and confirm Petitioner's testimony t he heard
gun fire before the gun that he wrestled from one of his assailants at his vehicle discharged the first
time.
(T., p. 271)
20
The video expert, Lars Daniel, who analyzed the videos and, issued a report attach d.as Exhibit.
"Q" to the Amended PCRA Petition, confirms Kinavey's, testimony. Kinavey's statement atall gun.
flashes might ñotbecapturedl on the video due to the manner in which the cameras captur d. the: video
was also confirmed by Daniel, who explained it in terms of "low frame rate." Mr. Daniel explains in
his report that upon examining the video he:
. Wound it to have, a frame rate of 6.5 frames per second, or FPF. For .a video't. be
. .
considered live motion (meaning that the video was smooth, not choppy or flickeri g) the
standard is 30 frames per second. (Amended PCRA Petition, Exhibit "Q", p. 1)
Mr. Daniel also states in his report:
I reviewed pages 221 through 227 of the court transcript, which contains a portion f the
testimony of Detective Kinavey. On page 221, Detective Kinavey gives the expl ation
of why there is a gap of approximately 30 seconds between the video files that we
produced from the video surveillance systems by Save A Lot. As a point of clarifi ation,
it is important to note that the "missing" 30 seconds is only between the two files
containing the entirety of the exported video footage. This "missing" video in ni way
impacts the footage of the actual incident and is not related to the explanation of
frame rate provided by Detective Kinavey beginning on page 226. (Amended CRA
Petition, Exhibit "Q", p. 6) (Emphasis added)
In fact, Detective Kinavey's explanation that it is not like a "video camera that you have at home' where
it captures every event" and that it "does not have the pixels to capture each individual ft e:,of each.
individual event" is simply'a less technical explanation of the.same conclusions reached Petitioner's
expert.
Counsel testified that he made the decision not to object to Detective Kinavey's tes mony
because there was "no doubt about it" and there is nothing in the record to support the pres nt claim that
the failure to object was prejudicial because it affected counsel's ability to argue to the j the likely
presence of shooters other than Petitioner. Therefore, to the extent the testimony was eith hearsay or
expert testimony, counsel had a reasonable basis for his strategy, and he was not ineffe,ctiv in following
that course. Commonwealth v. Williams,.899 A.2d 1060, 1063-64(2006),
21
Petitioner next contends that counsel was ineffective for failing to have the videos professionally
enhanced and analyzed and expert testimony presented regarding that analysis which ,w9 Id have lead
the jury to reach a different verdict. However, upon review of the report and after careful review of the
both the video of the shooting presented at trial and the enhanced, video, there are no sign 'ficant or
meaningful differences in the videos. The enhanced video is, in fact, somewhat brighter areas where
there is more illumination, that is in the foreground directly under the street lights and in e background
from signs or lights on or near Penn Avenue. 'In addition, while Petitioner's shirt is bright r as he is seen
approaching and entering his vehicle, the figures seen rushing toward his vehicle are not s gnificantly
clearer or brighter and the events for several seconds at or around the vehicle are not signi icantly
enhanced. Based on the review of the enhanced video and its analysis, there is no reason le probability
that the outcome of the trial would have been any different, if the proffered expert testimo 'y and video
had been presented at trial.
Mr. Daniel indicates in his: report that:
I was asked to determine the amount of time between the change of direction of th
crowd approaching the defendant's vehicle and the first muzzle flash. '1 was also ked to
examine the video as it relates to the number of alleged muzzle flashes and if muz le
flashes could have been 'missed' in the recording due to the frame rate of the video
(Amended PCRA Petition, Exhibit "Q", p. 1)
Addressing the issue of the time between the reversal of the crowd and 'the muzzle ash, Mr.
i
Daniel concludes that:
At the sixth frame of 00:19:36 the victim turned and begins to change direction
occurring before the crowd changing direction; the crowd then begins to change
direction at the fifth frame of 00:19:37. At the fifth frame of 00:19:38 the firs
muzzle flash can be seen. The second muzzle flash follows three frames after the first,
or approximately .4 seconds after the first muzzle flash on the first frame of 00:19: 9.
(Emphasis added)
22
Mr. Daniel reaches the conclusion that time between the change of direction of the, cr wd and the
"first muzile flash is one second. However, he also concludes that the victim changes dir tion before
'the crowd changes direction, that. is., the victim .changes direction at 00:19:3.6 and is shot. t 00:19:38.
Petitioner claims, that, counsel was ineffective in 'failing to present expert testirndn regarding the
video because it would have: establiShed conclusively the -short time that PetitiOnerhad :to ctually
perceive that the *erowd'' was retreating, that is. one: second, and the time that the first mu zle flash
occurred. Petitioner asserts that this analysis could have been used to counter the argume t of the
prosecutor that the time was 21 or 3 seconds. In his opening statement the 'prosecutor sugg ted to the
jury that Upon seeing the video. that "Whenfires.thatfitstshot, as you can see in the video at least two,
Closer tot= seconds have now passed. Three full Seconds...have passed since: these kids are now
retreating! .and.that is. thecrux of this, that they are, in fact, retreating." (T.., :pp. 26-27) P' titioner
contends that, trial counsel. imprOperty accepted this statement and did not attempt to refut it. This
statement of the. tinie *between the crowd retreating and the first 'shot was notrepeated in e
Cotinitonwealth's testimony or by theprosecutorin closing. However,PetitiOnees'trial .c tinsel did
refer:M.4.in his, closing by-stating 'that the Commonwealth's argurnent.that the mob was fl eing for "two
or three". seconds was' not afl that the jury should consider in assessing. the. circumstances at lead
Petitioner to believe that he had a reasonable. belief that his life was in danger, Counsel, r then than
conceding that only "two Or three" seconds was the tinteinvolyed that the:jury should con, ider, was in
fact arguing that the.jury should Consider.* events of. the entire night. Conmel.stated, quoting, the
Court's charge to be given on. self defense,
"Now my point is simply this: What this paragraph tells you, it's context. It wasp that
second at the car. It was the evening of the assault after assault after assault it w s the
beating on the door say "We got guns." It was the assault outside the door. It was at the
car itself. " (T., p. 430) (Emphasis added)
23
In fact, this argument was consistent with Petitioner's testimony and the: argument that Pet tioner
was not even aware that the crowd was fleeing. (T., p. 431) At the PCRA hearing trial c set
testified, as follows :
Q. Well, did 'you think.therefOre it might be useful to have an expert to tell yo,
exactly how.long.the..period.oftime was,. whether it was one 'Second or.thre
!second?
A. I did not retain one, sir, and I did not think in terms of that.
Q. Okay. You argued to the jury that he was in fear of his life. The DA agre d he
was in fear of his life. Isn't time to think or retreat a critical element there?
A. Certainly the lapse of time would be".a factor in this case, there's no doubt a out it.
Q. -
So you felt comfortable maybe I'm beating a dead horse here -- you felt
comfortable with you just eyeballing it?
A. I thought that when one looks at the tape -- and of course, as you're aware, this
case the jury had the tape as well with them in the jury room. When one Joked at
the tape still by still, it would appear to me that -- it appeared to be a very, ery
fast action. Now, what is defined by fast action. Again, according to the
defendant in the case, he indicates at the time between shot one and shot twi was
'a "split second. That was his term. (T., p. 27)
Trial counsel further testified that he viewed the videos: repeatedly .and he Was Concerned at if the
video .were enhanced that it could.beharmful to. the Petitioner as it. was conceded, by the. Ci
mmonwealth
..that Petitioner was being attacked and was infear for his. life. Counsel testified that the vid o
did.not
show the: gun in the Petitioner"S hand andif an enhancement had.been.done, it could haves pwrkhim
:pciinting the gun. Counsel testified. thatthelestimOny of Petitioner was that although he fir
d the gun,. he
never aimedit. If the.enhancemerit showed .him aiming the gun at the crowd as they were ing away,.
it could be potentially harmful to the Petitioner. (T., p. 22)
The proffered expert testimony establishes that there was one second from' when th; crowd
began retreating and the first muzzle flash', however, it is unclear how the expert
determine exactly
24
when the "crowd" began "retreating" because the movements of the individuals, especiall those in dote
proximity to the vehicle, even in the enhanced video, are less than clear. The expert also concludes: that
there were two seconds between when House, who did not reach the vehicle, began retrea ing and the,
first muzzle flash. Petitioner contends that if the jury would have been told that there was only one
second for Petitioner to perceive that the crowd was retreating, as opposed to two seconds that there is a
reasonable probability that the result would have been different. However, this argument ails because it
does not take into account, all of the evidence that supports the Commonwealth 's contenti n that,
whether it was one second or two seconds, Petitioner, absent a credible explanation, had ti have
perceived that the Crowd was running away. The timing of the retreating crowd and they tim as
described by the expert was, not so significantly different from that which could be percei ed by the jury
by viewing the' video and does not lead to the conclusion that the, expert testimony would ave affected
the, outcome of the trial. There was nothing in the expert report regarding the analysis oft e videos or
the enhanced video itself which establishes that Petitioner was prejudiced by any alleged effectiveness
of counsel in failing to present expert testimony regarding the videos, and this claim was a ipropriately
denied.
Petitioner next claims that counsel was ineffective in, failing to show the jury the vi eo at full
speed instead of half speed. Petitioner argues that by not playing it a full speed it allowed
Commonwealth to' "artificially increase the apparent time lapse, exaggerating the time wt in which
Petitioner was being asked to switch over from legitimate fear for his life when being rush d by the
mob. . ." (PCRA Petition, p. 25) However, trial counsel testified as follows:
Q. Is there any reason why you didn't have it played for the jury at full speed?
A. Well, there are certain' factors that help the defense by playing it at half spe d.
When you looked at it at full speed I'm sorry, at full speed it is somewhat of ,a -
blur. When you look at it at half speed, you basically see this gang of you come
over a hillside, it would seems to swarm this gentlemen's car, to jump on di car.
25
They were on the roof, they were on the hood, they were on the windshield and
of course part of the defense in this case, the major part was the fear he w in at
the time, andI think showing it at halfspeed Was able. to Capture that as op tosed
to full. speed it .would not.
Q. So you don't think showing it at full speed would have shown the full fear
confusion of the incident?
A. I don't believe so, no. (T., p.
Counsel, after having reviewed the video numerous time prior to trial, made a reasonable s ategic
decision that it was better to show the video at half speed. A review of the video at both h If speed and
full speed demonstrates that not only does playing the video at half speed prolong the time that it shows
the crowd rushing the vehicle, it prolongs the time that the crowd is seen engaging with Pe Wolter at his
vehicle. Petitioner testified to what he perceived as a prolonged struggle with some in the rowd
punching and pulling him from the vehicle, which occurred from when he first reached the vehicle until
they began retreating. From a review of the video, it appears that the crowd reaches his ye idle door at
00:19:30 and begins retreating no later than 00:19:37, as described in the expert report. A half speed
the period of the attack appears longer than when viewed at full speed. Therefore, while re may be
countervailing arguments as to whether the video should have been shown to the jury at fu speed or
half speed, trial counsel's strategy to show it at half speed was reasonable and he was not ' effective in
doing so.2
Petitioner next asserts that the court erred in finding that trial counsel was not ineff ctive for
failing to show the jury the available surveillance video clips showing mass movements of e crowd of
teenagers rushing towards and away from the entranceway to the party premises and for no presenting
evidence corroborating the 911 calls made by Petitioner and Medina El, a defense witness,'nor to the
2 While the prosecutor testified at the PCRA hearing that during deliberations the jury had e videos
and a computer and could have viewed the video at full speed, there is no conclusive evide cc that the
jury viewed at full speed. (T.. pp. 73-77)
26
shooting. As to the surveillanc,e videos,, Petitioner presented with his Amended PCRA Pe tion videos
obtained in discovery showing the, events outside the entrance to the party room. Petition,, claims
counsel was ineffective for failing to show the jury the surveillance video becaUseit'woulu have
corroborated The fact that the Petitioner, as well as others in the party room, had a reasona le fear of the
crowd. However; there was no significant dispute in this case that there was a large group if teenagers
outside the door of the party room and that there were altercations that, took place. Petitio er
acknowledges in' his Petition that, "these clips clearly tended to corroborate the assaults up inthe door
and upon Mr. McArthur testified to by the Defendant's witnesses, as well as by the Comm nwealth's
witness, Troy Cole." Mr. Cole testified at length concerning the altercations that look pla e both inside
the building and outside stating:
A. It seemed like the crowd was start' closing in on him.
Q. Okay,.
A. And then once he start smacking the chairs together, the crowd, they start, I e,
backing up. And then somebody threw a crate. I didn't quite see who threw it, but
they threw a crate and hit him. Then the crowd attacked the security guard. at's
when Mr. Scott came out.
Q. 'Okay. So a crate? Are you talking like - -
A. Like a milk carton crate.
Q. Like a plastic crate? You didn't see who threw it, but he got hit?
A. Yes.
Q. And then the crowd jumped him?
A. The crowd started attacking him, took the chair off of him and started
hitting him with them. Mr. Scott came out, and they did the same to h m.
Q. How many kids are we talking about?
A. A lot of kids. Like,,! can't even remember. I know a lot of kids, more 't an
the people that's In here. (T., p. 169) (Emphasis added)
27
In addition, Edric McArthur, Meclina El and Petitioner also testified as to these events and
Commonwealth never disputed that these events took place. Trial Counsel testified that h did not show
the videos because they were cumulative, stating:
The only thing I can say with hindsight is that it was cumulative. We had a numbe of
witnesses there, Miss El, and all the way through. As far as this mass crowd of yo
banging on the door saying words to the effect "we have guns", we have witnesses ho
place that one poor man outside and being attacked by fifteen youth at one time. A ain, I
was aware of the fact that on cross or whatever else there was no challenge to what ad
happened at scene one. Now, arguably if I had played the tape of the youth going ti ward
that door in scene one would that have enhanced that sense of fear? Possibly. (T., p.
35-36)
Clearly the evidence suggested by Petitioner was cumulative and counsel was not ineffecti e for failing
to present cumulative evidence.. A defendant is not prejudiced by the failure of counsel to resent
merely cumulative evidence. Commonwealth. v. Spatz, 896 A.2d 1191, 1229(2006)
Petitioner also argues that counsel was ineffective because he: "left uncorroborated d therefore
opened to disbelief the testimony by Petitioner and Mr. McArthur that they had twice call 911 for
assistance and by Medina El that she had called 911, as well." Medina El testified as folio s:
Q. Did you see the assault on Mr. Scott inside that room?
A. Yes. They started hitting hirn with chairs_ They were, like, all surround 8
him hitting him with chairs when they were trying to get them out the door, get em
out the door. The broke tables. It was just very chaotic. Once they got them o side
of the building where the party was, hey start kicking on the doors, kicking, scream
they had guns.
I actually called 911 from my phone, and! told the operator that they w re
acting crazy co the other side of the door because we couldn't get out. We
couldn't get out of the place. They were still kicking on the door, screaming they d
guns, all types of stuff. "Open this fing door."
They were just cussing, and a lot of children that were inside of the party w re
just scared, terrified. They were crying. We were trying to contain the child en,
audI that's all I could think of was to call 911. (T., pp. 328-329) (Emphasis add
28
Trial counsel also testified that evidence. to corroborate that calls wereAtade: to 911 was n t.offered.
because thefactliat the calls were made.was undisputed, and such evidence would haye b en
cumulative. 3CounSel.testified:
Q. Did you present the testimony that there were prior calls to the Wilkinsbur
Police?
A. The testimony came from the client, the defendant on the witness stand.
called a Miss El. Miss El indicated that she had made two telephone calls
Wilkinsburg -- she made, two 911 calls, and she was asked at the scene if s
knew specifically if the defendant made calls. She said she did. not know.
defendant took the witness stand and said I believe he made two calls.
Q. Did you attempt to get 911 recordings or evidence that he had actually ma calls
to the police?
A. I did not.
Q. And why not?
A. Because it was basically unrebutted in this case. The incident -- I used the erm
crime scene one of what happened in that so-called party room, party room
outside of that, and the witnesses put on, including one of the defense wiM sses, I
believe, a Mr. Troy Coles, basically was =rebutted as to what specifically
happened in that area, outside of that area. And as far as I remember, it wa not
even challenged by the Commonwealth in this case, so I felt no need to
corroborate the 'issue of the telephone calls.
We had two witnesses. Miss El was excellent, and there was no challenge ii the
fact that she ma.de those calls. (T., pp. 30-31)
Petitioner contends that corroboration of the above referenced evidence was important to' stablish the
fact that Petitioner was in fear of his life at the time of the shooting. However, this issue s never in
dispute. In fact, the prosecutor conceded this point in his opening statement saying:
They rushed him as he was entering his car. He made it into the car. All the kids e
right on the car, and you can make that out on the video. At that point, like.! said to
3Sergeant Singer also testified that he was responding :to ,,.a call about a disturbance spillin ,out "Onto
Stoner Way, when he came upon the scene of the shooting. (T., p.. 49)
29
you,. I.'01 not pinto argue to, you to the contrary. He. was in certain fear fo his life.
at thatipoint, and that is.clear and nOt contradicted.. (T.,. p. 2.5) (Emphasis 'add )
Counsel was, therefore, not ineffective in. failing to present evidence to corroborate the disputed
testimony regarding the events outside the patty room and...the 911 calls and this. Claim is . eritless.
Petitioner'next contends that. trial counsel was ineffective. for failing to .aggressive y impeach the
commonwealth's witness, Shenita Howard, and fOrrefitSinga jury charge which would h ye singled her
out as a witness who made prior. inconsistentstatements,. Specifically,.P.etitionerargues at Ms.
Howard was the witness relied upon by the Commonwealth to establish that Petitioner w s drunk and
*unruly throughout *Tarty, the. aggressor in thefightingthat subsequently 'ensued and th the acted
inappropriately towards certain girls. Petitioner also contends that it .was..HoWard Who ch ged her story
from interview to interview. and who most raditallyzOntradieted the objective facts as rep red by the.
surveillance video.
TheronamortWealth argues that trialcounsel did.effectively cross-examine How. i regarding
inconsistencies betweeither trial testimony, statements tothe..police and her testimony at eprelfininary
hearing. A"review Of Howard's direct and.cross examination demonstrates that trial Court effectively
crOssedetamined Howard by having:het-admit that the.Smoked.marijnana with her uncle, the victim
House, a couplehours before the party, (T.,.p. 95); thatshe :gave statements that were inc nsistent with.
Troy Colesregardingthe attack on McArthur, (T., p. 102); that she attended .4 "good. nu her" of parties,
in the past where there. are'pat downs for 'weapons, (T.,. p. 97); that Petitionermayhave mi interpreted
some of thedancing that partygoers were engaged in as fights, (T, 99);.thatanotherfe ale .adult at
the.party thought there was. alight. going on.atthe party, (T., p. 100);. and, that her testitno atthe
py.
preliminary hearing regarding the number of shots.. she heard was inconsistent .with het tri testimony.
(T., p. 114) In addition, by questioning Howard c.onceming.herrec011ections and observa ons, which
were directly contradicted by the video evidence, ttialtoUnsel eleatlytteated doubts iabou Howard's
30
credibility. In his closing argument, trial counsel not only argued that Howard was, biased d gave
inconsistent and incredible testimony but also, suggested that her testimony was of little si ificance. (T.,
pp. 398-399) Therefore, counsel was not ineffective in, failing cross examine Howard.
Petitioner next contends that trial counsel was, ineffective for consenting to the Co onwealth's
request that the instruction regarding inconsistent statements not "single out" Howard. (T., 359) At
the PCRA hearing counsel testified:
1 know that the Court had offered to direct it very specifically to Miss Howard, and
perhaps I should have joined in on that, it made sense, but at the same time I am no sure
that there was any damage done as a tesult (T., p. 61)
The jury received an instruction regarding prior inconsistent statements of a witness and th t it could
consider those inconsistent statements in assessing the credibility and the weight of the test mony. (T., p.
481) In light of the instructions to the jury and the inconsistencies in Howard's testimony hat were
developed on cross examination, Petitioner has failed to prove that the failure to single out oward
during the jury charge was prejudicial.
Petitioner next contends that counsel was ineffective in failing to submit a motion .i litnine
objecting to the prosecution's use of criinen falsi, convictions against a defense witness, Edr c McArthur,
when those convictions were stale pursuant to Pa.R.E. 609(b) which provides:
(a) In General. For the purpose of attacking the credibility of any witness, evidence at
the witness has been convicted of a crime, whether by verdict or by plea of guilty o nolo
contendere, must be admitted if it involved dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if mor than
10 years have passed since the witness's conviction or release from confmement for t,
whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable writtennotice of the intent to us
so that the party has a fair opportunity to contest its use. Pa.R.E. 609
A review of McArthur's testimony shows that it dealt primarily with the events and altercations
that: took: place in the party room and outside in the alley as the teenagers were leaving. (T., i p. 304-314)
31.
As noted 'above, there Wasno, substantial ordispute concerning, those 'facts, Which were a so testified to
by other defense witnesses and a Commonwealth witness. McArthur also testified that'a he was
locking up the room :after the event he did nothear any shots n, the parking. lot, ,did. not w tness the
eVents, iifthe parking. lot and did not. see Petitioner that night after he left to get in his car. (T., pp. 321-
322) .At the. conclusion of his. testimony, the prosecutor cross-examined McArthur with r spect to his
conviCtion.and..sentenceof.5 to 10 years.for.robbery and a guilty plea to receiving stolen operty for
which he received 5 years, probation. ,(T., p. 323) Trial 'counsel testified that' it was amis ake not to
challenge the use of the 'convictions in McArthur's cross examination. (T., pp. 4142) In ddition, the
Commonwealth concedes the convictions:were stale pursuant to 609(b), however, argues at when
Considered in the .contextof the. totality of the evidence presented at trial, the error does n t undermine
confidence in the verdict.
Petitioner cOntendS...that he was, relying upon McArthties testimony to. vouch for P titioner's
sobriety and reasonable behavior during.the early events, of the evening.a.nd to corroborat Petitioner's
aridly's. El's description Ofthe out of control mob which was ;gathered
outside the.partypremises once the teenagers. had been asked. to.exit. However, as rioted boVe, 'there
were both Commonwealth and defense witnesses that..testified. concerning. those events w ich..were the
subject of McArthur's testimony 'and, it :is clear that McArthur'Stestintony was cumulative Although
counsel was ineffective in failing to object to'the use ofthe stale convictions to imPeach c.Arthur,
Petitioner hasfailed to prove any prejudice...and this claim is ineritleSs..
Petitioner next contends that it was error to firid that trial* counsel was not ineffecti e for failing
to present facts showing that. Petitioner's ability to perceive. what was happening at the ti of the
incidentwere:,.adversely affected by hisphysical condition. Petitioner attached as ..Exhibi "K" to his
PCRA Petitioner's, medical records from the Veterans Administration hospital fOr his treat ent on
32
November 23, 2008. Petitioner attaches a radiology report of November 23,2008 from a T :scan of his.
head which. Petitioner indicates documents that he was suffering from "frontoparietal soft issue swelling
on the left side corresponding to area of injury without fracture or contusion." In, addition ere is a
progress note that notes a small abrasion under the left eye and a 1/2 cm. curvilinear lacera 0.0 On the
mid -forehead which was described as being "superficial." The. records indicate:that he ha a thief
complaint "getting assaulted tonight, laceration to theleft forehead, under left:eye, report d loss of
consciousness, hematoma left side of the forehead." While these records do document s e of the
injuries that Petitioner suffered, these injuries do not appear to be significant and there are ortions of
the record that are arguably harmful to Petitioner as it pertains to his injuries and physical ondition.
For example the records note that he is "alert and oriented," that his nose is "not swollen," at the:
laceration is "dermal only," and the laceration is "superficial." The records do not docume t 'any
significant treatment and there is no indication that he required any stitches or bandages to e head
laceration. In addition, there are portions of the records that contradict Petitioner's trial to timony
regarding the incident itself, such as his statement that during the attack at his vehicle, "He states he was:
hit in the head and fell to the ground, losing consciousness briefly. He then woke up and ove himself
here to the ECC to be seen." (Exhibit :-.Progress.Notes) This statement is contradict by the' video
that does not show Petitioner'being knocked' to the ground or suffering any period of unco ciousness
nor does it account for the period of time that he went to his friend's house after the shoot
There is little in the records from the Veterans Administration Hospital that support the
contention that Petitioner would not have been able to perceive what was occurring during e incident.
Importantly, although Petitioner testified that he had sustained some injuries during the al cation in the
party room with Cole, Petitioner never testified that he was bleeding or suffered any other jury that
affected his ability to perceive what was occurring when he left the building and went to hi vehicle.
33
Petitioner testified that he suffered "a: little blank out" after the gun he allegedly grabbed om one of the
attackers fired, but, never attributed this "blank out" to any specific injury. (T., p. 283)
Petitioner also argues that counsel failed to admit the complete set of photographs of the
able
Petitioner's. "various scrapes and cuts" which would have supported Petitioner's claims of ot being
to see clearly as events unfolded because blood having gotten into his eye. (PCRA Petiti n, Exhibit
"L") However, in reviewing Exhibit " L," one of the photographs of Petitioner's face an head showing
the laceration on the left forehead and left cheek had already been adrnitted into evidence as
Commonwealth Exhibit No. 193. The Commonwealth also offered in to evidence Exhibi s 194, 195,
196 which are photographs of Petitioner's hands and knees. While Exhibit "L" does con 'n three
additional close up photographs of Petitioner's face showing closer views of the laceratio on
Petitioner's forehead and cheek, they do not demonstrate injuries that would affect: his ab ity to perceive
what was happening at the time a the incident. A review of the other photographs attac a.s Exhibit
"L" show what appear to be relatively minor scrapes on the back of his hands and 'muck' , his left knee
and right shin, the left side of his back and his right arm. These photos would have no b ng on his
ability to perceive the events surrounding the shooting. Petitioner fails to demonstrate 'h w the failure to
offer the photographs prejudiced him and this claim is without merit.
Petitioner also claims that trial counsel was ineffective in failing to present expe medical
testimony to explain to the jury the effects of the stroke that Petitioner suffered while on" ergoing
surgery in February of 2010 for a hernia and the impact of his symptoms on his ability t s testify. At the
PCRA hearing Petitioner presented the testhriony of Dr. Susan Hoppe., Dr. Hoppe, who s board
certified in internal medicine, testified that she was Petitioner's, treating physician from 009 to 2010
and that she had reviewed his medical records for the period from February 2010 to Dec mber 2011.
(T., p. 7) Dr. Hoppe testified that. Petitioner had suffered a left parietal infarct diat left h in with
34
difficulties both in expressing himself atid understanding speech. (T., p.9) She testified at the stroke
also caused some mild cognitive difficulties and memory impairment. (T., p. 9) Dr. Ho e testified that
Petitioner had expressive aphasia which included phonemic paraphasia which meant that e might
confuse certain words, for example "he might want to say the word cat and instead he wo id say the
word can." (T., p. 9) In addition, she, testified that Petitioner might suffer some difficult with
comprehension , such that he would not answer a question in a way that showed that he derstood the
question. She also testified that the aphasia could be greater under stress such as when h would be
testifying in court. (T., p.10) She testified that the effect of this could be that he would g t upset and in
attempting to express himself might become tearful. She could not testify if the aphasia ould make his
mood labile. (T., p. 11) Dr. Hoppe also testified that she had witnessed some tearfulness and frustration
which was not typical of Petitioner before his stroke. She testified that it was often neces ary to repeat
things several times to a patient with aphasia. (T., p.12) She further testified that stroke uld affect
short-term memory. On cross examination Dr. Hoppe acknowledged that she was not pre ent during
Petitioner's trial and ,that it would be hard for her to actually know how Petitioner respon ed to
questions based on reading the transcript. (T., P. 14) She also acknowledged that in her eport of
February 2015 she stated that his comprehension deficits would be generally mild. She al o stated that
his ability to remember the actual events of the incident which occurred in 2008 would no have been
affected by the' stroke. (T., p. 15)
Petitioner alleges that counsel was ineffective in failing to call Dr. Hoppe or prese t other expert
testimony to establish the effects of Petitioner's aphasia because a physician would have b tter explained
to the jury any difficulties that Petitioner might exhibit in responding to questions or testif ing, which
might be constmed by the jury as Petitioner being evasive or unsure of his testimony. Pe tioner also
. 35
specifically refers to Petitioner's cross-examination in which the prosecutor questioned P titioner about
his crying during his testimony earlier in the day, stating:
Q. Are you sure that wasn't just a ploy to get sympathy from the jury and that you
weren't really crying? Because there was no tears; right?
A. I was trying back, pulling everything back. I was trying testimony withou crying.
Q. So you're actually saying :those' were real, honest emotions about the cryin ?
A. Yes.
Q. But your eyes didn't get red? Your, nose wasn't running?
A. Yes, my nose running, yes. (T., pp. 280-281)
In addition, duting his closing argument, the prosecutor argued:
"And the way he testified, I really hope that you saw it. I hope you saw through at
facade. I hope you saw through the fake crying, the exaggerated stuttering when I was
questioning him as opposed to when Mr. Brennan was, his claim of lack of merno y, how
he doesn't know what's going on. It's an act for you. It's an act for you to sympa ize
with him, but I hope you saw through it. (T., pp. 453-453)
Petitionerargues that medical testimony confirming his condition would have precludeds ch questions
or argument or,.at theVery least, lessened their impact.
At the PCRA hearing' trial counsel testified -that he was awarathat Petitioner had: fered
.stroke: and was' undergoing rehabiritation:And,...."Wanted 'to make sure that be could respond appropriately
N.vben.ealled tothe witness stand." (T., p. 43) ;He testified that he noted that the aphasia. .ifeSted
itself in his discussions" with Petitioner, stating:*
"Typically if.! was posing 'questions to him on ;direct, sometimes it would simply t
a time frame:to:answer. I would ask a.question,; and.typically he Would raise is
finger and;he would give an answer, or then he woUld just say to me: can you wail a
second? Andi would. wait. for a second, and he. would give inewhatthe appropria
answer was, at least it Was an answer consistent with the prior interviews with him ".
p. 43)
36
Counsel testified that he, met frequently with Petitioner, who was out on bail, to prepare, fir trial and -that
he did not recall any tendency by Petitioner to omit words, have difficulty with complex entences, or
difficulty with comprehension or having to explain things "more than once." He did des 'be Petitioner
exhibiting what he called a "pregnant pause" between being asked a question and respon ing. CT., p.
44) Counsel also indicated that while he knew about Petitiones aphasia, he did not, cons It with an
expert but "read up on the subject area." (T., p. 45) Counsel also testified that he did con ider that the,
jury might interpret the symptoms as .a lack of forthrightness and, therefore, elicited testi ony from
ir
Petitioner that he suffered a stroke while undergoing surgery for a hernia that was aggrav ted on the
night of the incident. (T., p. 78) Petitioner testified as follows at trial:
Q. So did you suffer that stroke during surgery at the VA Hospital?
A. Correct.
Q. Are you in rehab for that now?
A. Yes.
Q. And how long have you been in rehab as a result 'of the stroke that you su red
while in surgery for the hernia?
A. Every week, and I had to stay for 30 days at the VA in Aspinwall.
Q. And, sir, what effect has that stroke had on you?
A. I have aphasia. It's called aphasia.
Q. What's that mean, sir?
A. My coordination of my speech and, my, thinking, and 'I can't-- could read nd
write' a lot.
Q. And that affects you as of right now, sir? Did you mean to shoot or kill an one at
all, Mr. Scott?
A. No. No. (T., pp. 278-279)
37
Petitioner contends that counsel was ineffective because the failure to obtain expe testimony
left Petitioner wide open to the remarks made by the prosecutor questioning the reality of ;' etitioner's
symptoms. In addition, Petitioner argues that his own testimony and the remarks of trial ounsel in his
closing argument did not carry the weight that the testimony of a medical professional wo Id have
carried. Clearly, presenting medical testimony would have more clearly explained to the ury the
symptoms of aphasia. Such testimony may have given the prosecutor pause in questionin Petitioner's
symptoms and making the argument that his symptoms were a facade. However, it app that, the
emphasis in, the prosecutor's argument was that Petitioner's difficulties in testifying appe d to, manifest
themselves during his cross-examination as compared to his direct examination and were H
attempt to -
garner sympathy, which should not be considered in rendering a verdict. (T., p. 453)
Finally, neither Dr. Hoppe nor Petitioner testified at the PCRA hearing to any part- ular
instances during the trial, where he failed to understand a question or demonstrated a lack f ability to
express himself and answer questions correctly. Dr. Hoppe, testified that it would be diffi It for her to
point out, simply from reading the transcript, any particular difficulties that Petitioner had uring trial.
However Petitioner did not testify at the PCRA hearing to any significant difficulties that e
experienced. There was no testimony from Petitioner, after having had an opportunity to, view the trial,
transcript, to instances in which he believed that he experienced any inability to understan the questions
or respond fully and appropriately as a result of his aphasia. It 'was"previously noted in th 1925(b)
Opinion previously filed in this case that this Court did' not' witness any significant difficul y that
Petitioner had in testifying due to his aphasia. While expert medical testimony may have ore clearly
established, the effects of Petitioner's stroke and aphasia there is not sufficient evidence, to stablish that
Petitioner was prejudiced by any failure, to call an expert witness to address this issue.
38
Petitioner next contends that the trial court erred, in finding that trial counsel was ot ineffective
in, failing to challenge the, deficient jury instruction with respect to the defense of justific ion which
excluded die word "complete" when instructing the jury that the Petitioner knew that he c uld avoid the
"necessity of using deadly force with complete.,safety," The relevant portion of the charg from the
transcript states:
Consider the realities of the situation faced by the defendant here, when you asses
whether the Commonwealth has proven beyond a reasonable doubt either that he id not
believe he was in actual danger of death or serious bodily injury to the extent that e
needed to use such force in self-defense or that while he did believe, it was unreas enable
for him to do so, or that the defendant knew that he could have avoided the necess ty of
using deadly force with safety by retreating but he failed to do so. (T., p. 484)
The instruction does not contain the word' "complete" and in its post hearing, subm ssion the
Commonwealth indicates that it confirmed with the' court reporter that there is no indicati n that the
transcript is inaccurate. Trial counsel testified at the PCRA hearing that he did not object er request
additional instructions because he did not hear that the word "complete" was not used in: e charge. (T.,
p. 49) Petitioner argues that the omission of the word "complete" from the charge was o great
important because Petitioner had been subject to not just one but to repeated attacks by th same mob of
teenagers and that, "under: those circumstances, the concept, of safety was clearly a relativ term and the
difference between potential safety and 'complete' safety was, very large." (Memorandum in Support of
Amended PCRA Petition, p. 53) While there is no dispute that the word "complete" is in uded in the
standard instruction 9.501 'on "Justification: Use of Force/Deadly Force in Self-Defense w ich was
being read to the jury and was inadvertently omitted, it is also clear that there was no imp' per
qualifying words use to describe the concept of safety such as "potential" or "possible." he
instructions as whole conveyed to the jury the concept that the Commonwealth had the b den of
proving an one of three elements regarding self defense, which included that the defendan knew he
39
could avoid the necessity of using deadly force with safety by =treating. As stated in Co rnonwealth v.
Spotz, 896 A.2d 1191 (2006)
"In reviewing a challenged jury instruction, we must review the charge as a whol and
not simply isolated portions, to ascertain whether it fairly conveys the required le al
principles at issue." Gilbert Jones, 683 A.2d at 1196. "[Ilt is an unquestionable m im of
law in this Commonwealth that a trial court has broad discretion in phrasing its
instructions, and may choose its own wording so long as the law is clearly, adequ tely,
and, accurately presented to the jury for its consideration." Commonwealth v. Port r, 556
Pa. 301, 728 Aid 890, 899 (1999).
Spotz insists that his trial counsel was ineffective for failing to object to the trial urt's
omission of the word "case" from its jury instruction on aggravating and mitigati
circumstances. However, as the PCRA court concluded, we find this "hyper-techn cal
semantical claim" to be "patently frivolous." (Opinion of the PCRA Court at 57).
In Porter, supra, this Court rejected a similar hyper-technical claim. There, the ap slant
argued that it was reversible error for the trial court to instruct the jury that a reaso able
doubt was one that "would cause a reasonably careful and sensible person to restr
before acting." Porter, 728 A.2d at 899 (emphasis added). Instead, the appellant isted
that the jury should have been given the Pennsylvania Standard Jury Instructions:
Criminal Section, § 7.01(3) (1979), which states that a reasonable doubt is one tha
"would cause a reasonably careful and sensible person to hesitatebefore acting." d.
(emphasis added). In dismissing this semantical claim, we noted that, "although w have
historically considered the language contained in these standard instructions to be aid
in, our review, we have not placed our imprimatur upon them." Id. Moreover, we a so
emphasized that the trial court has broad discretion in phrasing its instructions as 1 ing as
the instruction clearly, adequately, and accurately reflects the law. Id. Because the
distinction between "hesitate before acting" and "restrain before acting" was de m imis,
we concluded that such a slight deviation by the trial court was not an abuse of dis retion.
Similar to Porter, we believe that the trial court's omission of the word "case" was de
minimis. As the PCRA court concluded, "Whe instructions as given, clearly, adeq ately
and accurately explained to the jury how to use the aggravating *96 and mitigatin
circumstances in accordance with the law." (Opinion of the PCRA Court at 57).
As such, we do not believe that such a trivial omission in phrasing would constitut an
abuse of the trial court's discretion. Likewise, as there was no reasonable basis for 'al
counsel to object to the instruction as given, counsel will not be deemed ineffectiv for
failing to raise a meritless objection. Commonwealth v. Spotz, 896 A2d 1191, 1 -47
(2006)
Considering the instructions given to the jury as a whole, the instruction as given, with the omission of
the word "complete," still adequately conveyed to the jury the law regarding the elements at the
Commonwealth was required to prove' beyond a reasonable doubt to' establish that Petitio r did not act
40
in justifiable self-defense. Therefore, Petitioner has failed to establish prejudice and this laim was
appropriately denied.
Petitioner next claims that trial counsel was ineffective for failing to object and m ve for a
mistrial following improper argument by the prosecution. As stated in Commonwealth v. ii, 10 A.3d
282 (2010):
The standards governing challenges to statements by the prosecutor are well-settl. : A
prosecutor has reasonable latitude during his closing argument to advocate his cas
respond to arguments of opposing counsel, and fairly present the Commonwealth'
version of the evidence to the jury. A challenged statement by a prosecutor must b
evaluated in the context in which it was made. Not every intemperate or improper etnark
mandates the granting of anew trial. Reversible error occurs only when the unavo dable
effect of the challenged comments would prejudice the jurors and form in their m" ds a
fixed bias and hostility toward the defendant such that the jurors could not weigh e
evidence and render a true verdict Commonwealth v. Cooper, 596 Pa. 119, 941 A. d
655, 668 (2007) (citations omitted). Prosecutor remarks are not objectionable if th
remarks "were based on the evidence or proper inferences therefrom...." Common ealth
v. [Aaron] Jones, 571 Pa. 112, 811 A.2d 994, 1006 (2002). On the other hand, of 4 urse,
the prosecutor should not "misstate the evidence or mislead the jury as to the: infer nce it
may draw." Commonwealth v. Shain, 493 Pa. 360, 426 A.2d 589, 591-92 (1981)
Commonwealth v. Ali, 10 A.3d 282, 307-08 (2010)
Petitioner first submits that the prosecutor improperly asked the jury:
"Do you think that at the very least Sergeant Singer who testified would know the
difference between one gun firing and two guns firing? He said there were four to we
shots and nothing about hearing those shots indicated to him that it came from MO than
one gun because it didn't. (T., p. 439)
On direct examination Sergeant Singer, who was the: first police officer to wive at the see e,:teStified as
.follows:
Q. Now..,when you were in route to the location, did you:hear anything that
.
your. attention?
A. Yes. As I was pulling onto the scene, I heard approximately four to five gu shots
sounding out. (T., p. 50)
41
Officer Singer was not asked any other questions on direct examination concemin the gunshots
that he heard. He also testified that he did not 'find any weapons at the scene. (T., p. 53) owever, on.
cross-examination Officer Singer testified that when he heard the shots he was approxim. ely 100 feet
away and he ::was sure they were gunshots. He was also asked:
Q. Can' you tell :us; if you remember, if there Was any kind of gap in time be een,
like, .gunshot 1 and I know you said 4 or 5, so was there anytime lapse - tween
shot 1 and, shot or shot 5 or were.they.someWha rapid?
A. I can't recall if there was any time lapse between the shots.
Q- Okay. Okay. Now, when you arrive at the scene, you've already heard fo or
five shots. Are you quite sure that it was four or five shots? Is that one of he
things that you're sure about?
A. *Yes, that's what Lean recall,.four.or fiveshots. (T.,:pp. 5859).
The prosectitor's..argitment.concerning this issue, including the. statement objected by
Petitioner, waS.s.as
"There'.are at least a minimum of three shots that Mr. Scott fired that we know d
that's based on the. injuricS. And I. submit to youlhatthe.fourto five shots that eve one.
said they heard were all fired by Mr. Scott. TO suggest there was some other seque ce of
gunfire is ridictilous. It's not what. happened. Do you think that at the very least S rgeant
Singer who testifiedwoUld.know the.differencebetween.one gun firing and two g s
.firing?. Be' said there were four to 'five shots and nothing about hearing those shots
indicated to him that it came from more than one gun because it *didn't. The only p rson.
who had, a gun:there was Mr. Scott. (T;, p 439).
Petitioner argues that. nothing in the record.. suggests that Sergeant Singer Was .asked if h&c suld make
such a distinction between two guns Cr that he in any Waytestified to, the non-existence...of second gun
firing and, that the statement by the prosecutor was complete fabrication. However,
the statement by the prosecutor' does accurately'state that Sergeant Singer testified that he eard four or,
five shots and did not recall.any.tiMe hipSe..betiwen the..shots. Whether 'the:prosecutor w referring to
this lack :of a lapse in the titne.bptween shots is. unclear. HOwever, given that the statemen was, in'the
context of argument and the jury was instructed that. the, argument of counsel was' not evil nee and they
42
were the sole finders of the facts based on the evidence that wa.s presented, there is no bas s for finding
that'counsel was ineffective in failing to object to the statement. (T., pp. 472-473)
Petitioner next argues that the prosecutor's arguments concerning, the size and ch cteristics of,
gun used in the shooting was improper. The prosecutor argued that the gun used was a la ge gun, a .44
magnum and that "it's not the typical gun that is around these days, which is usually a se -automatic.
They're obviously a lot smaller so they are used for concealment and so forth." (T., p. 43 )
The evidence is clear that the gun used in the shooting was not retrieved and thee idence
regarding the type of weapon used was circumstantial. Dr. Todd Luckasevic, Associate edical
Examiner, and Forensic Pathologist from the Allegheny County Medical Examiner's Offic , testified that
the injuries sustained by the decedent were consistent with "a large caliber such as a .44 agnum." and
that " a .44 Magnum is a large handgun caliber, it's one of the largest." (T., p. 44)' In ad ition, the
Firearm and Toolmark Examiner of the Allegheny County Medical Examiner's Office, Dee orate Tator,
testified concerning the barrel lengths of a,.44 Magnum revolver and testified that it could vary in
length, based on the make and model, from two inches to up to about ten and a half inches (T., p. 246)
She also exhibited and demonstrated to the jury a Ruger .44 Magnum revolver that had 'a el length of
seven and a half inches. (T., p. 246)
Finally, the Commonwealth presented the testimony of Detective' Gregory Matthe s of the
Allegheny County Police Department who testified that he executed a search warrant on P titioner's
residence which resulted in locating three rounds of .38 ammunition and one round of 35 ammunition.
(T., p. 204) In addition, during a search, of Petitioner's vehicle that, was: at the scene of the s ooting, he
'found 'a .44 Magnum cartridges recovered 'from ,the passenger's side of the Petitioner's vehi e and a .44
Magnum cartridge recovered from the center consol. (T., pp. 206-208) The prosecutor's gument is
supported by the circumstantial evidence, and the inferences therefrom, that the gun, used i the shooting
43
was .44 Magnum owned or possessed by Petitioner. In addition the argument that it was large gun
could also be a justifiable inference from the evidence. However, the prosecutor's &gime t that the gun
is not "typical" or that it is from the "old days" is not specifically supported by the evidenc In fact,
Ms. Tator's 'testimony ,that the .44 magnum can be found in various barrel lengths dependi g on the
make and model would imply that it is not from the "old days." As noted above, not ever improper
remark by a prosecutor warrants a new trial. In the context of all of the, evidence in this ca e, and given
that Petitioner admitted that he fired a gun during the incident, Petitioner has failed to esta lish that he
was prejudiced by the prosecutors argument concerning the gun used in the shooting.
Petitioner next contends that the prosecutor improperly represented the Petitioner's estimony
about his medical issues and the physical manifestations of his aphasia at trial by claiming at they
were fake. As discussed, above regarding Petitioner's symptoms of aphasia, the prosecutor n his closing
argument argued that Petitioner's conduct on the, stand was to garner sympathy, which she Id not be
considered by the jury in rendering its verdict. He also argued that the conduct of Petitions r varied
depending on whether he was being questioned by his own counsel or the prosecutor. The ury had the:
opportunity to observe Petitioner and could make its own assessment as to whether or not', ó argument
by the prosecutor was valid. The prosecutor did not misstate any evidence and, therefore, y, claim that
counsel was ineffective' in failing to object to these remarks is meritless.
Petitioner next asserts that trial counsel was ineffective in failing to object to the pr secutor's
statements during his closing argument that Petitioner "lied" during his: testimony. Regard g the
Petitioner's testimony that he did not have the gun used in the shooting and that he got it fr m one of his
attackers and that he dropped it in the parking lot, 'the prosecutor stated: "And to further SU gest that,
that's an absolute lie by Mr. Scott." (T., p. 440) ; "He lied to you about what happened with the gun
when he dropped it in the parking lot." (T., p 441):; "No. 1, he lied about the gun." (T., p. 59)
44
Regarding the statements made at the hospital where Petitioner went for treatment: "It's erstandable,
perhaps to argue that after he shoots Derrick and you see him get of the car and he realiz what he's
done - which, by the way, is another lie he told you, that he didn't know he shot anybody, that he told
the officer at the VA he didn't shoot anybody. (T., p. 442). Regarding calling the police Cr the
shooting, the prosecutor stated: "He lied about calling the police. He calls the police way efore he kills
anybody." (T., p. 462)
In Commonwealth v. Cox, 863 Aid 536 (2004) the Supreme Court considered the ssue of a
prosecutor repeatedly referring in his argument to the defendant as a "liar" and stated:
Appellant's third claim is that all prior counsel were ineffective for failing to objec to
alleged prosecutorial misconduct Appellant argues that, during closing argument, e i
prosecutor made impermissible statements relating to the testimony of Appellant d
Molyneux. First, Appellant contends that the prosecutor improperly referred to, Ap ellant
as "a liar" on numerous occasions. Relying on the decision of this Court in.
Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811 (1994), Appellant maintains tha
a-refutable evidence did not exist for the prosecutor to broadly characterize Appel': t as
"a liar." Second, Appellant contends that the prosecutor improperly argued that
Molyneux was not thoroughly versed in his profession, and instead engaged in "ho us
pocus" and "mumbo jumbo," which was clearly contrary to the record. Consequent y,
Appellant avers that trial counsel was ineffective for failing to object to the statetn ts of
the prosecutor and, accordingly, appellate counsel was ineffective for failing to rais the
alleged misconduct on direct appeal.
In Ragan, we explained that a prosecutor canriot intrude upon the exclusive functi n of
the jury to evaluate the credibility of witnesses by broadly characterizing the testimny of
a witness as a "big lie." Ragan, 645 A.2c1 at 829 (citing Commonwealth v. Kuebler, 484
Pa. 358, 399 A.2d 116, 118 (1979)). We also noted in Ragan, however, that "a
prosecutor's assertion that a witness had lied dOes not warrant a new trial when the
statement vvas a fair inference from irrefutable evidence rather than a broad
characterization." Id (citing Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365, 3 9
(1984)).
10111213 It is well settled that statements made by the prosecutor to the jury durin
closing argument will not form the basis for granting a new trial unless the unavoid ble
effect of such comments is to prejudice the jury, forming in their minds fixed bias d
hostility towards the accused that would prevent them from properly weighing the
evidence and rendering a true verdict. Commonwealth v. Gorby, 527 Pa. 98, 588 A. d
902, 909 (1991). Similar to the defense, the prosecution is accorded reasonable latit de
and may employ oratorical flair in arguing its version of the case to the jury.
Commonwealth v Williams, 541 Pa. 85, 660 A..2c11316, 1322 (1995), cert. denied, )16
U.S. 1051, 116 S.Ct. 717,133:L.Ed.2d 671 (1996). Prosecutorial misconduct will nit be
45
found where the comments were based on the evidence or derived from proper
inferences. Commonwealth v. Chester, 526 Pa, 578, 587 A.2d 1367, 1377 (1991), ert.
denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991). Finally, any alleged y
improper prosecutorial comments must be examined within the context of the con uct. of.
defense counsel. Commonwealth v. Clayton, 516 Pa. 263,532 A.2d 385, 396 (198 ), cert.
denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988).
As support for his argument, Appellant notes the remark of the prosecutor during
closing argument in which he stated: "Well, I suggest to you that he didn't tell you hat
he knew, and he told you three different stories about what he knew and he lied in ach
one of them." (N.T., May 15, 1987, page 1957). Further, Appellant points to anoth
comment made by the prosecutor during his closing argument in which he asserted
"Let's look at his other statement, the next one he gives, the next scenario of lies h tells."
(N.T., May 15, 1987, page 1971).
In rejecting the argument of Appellant, the PCRA court explained that the stateme w of
the prosecutor "were fair comments on the evidence and did not unreasonably infl e or
incite the passions of the jury." PCRA Court Memorandum Opinion, June 18, 200 ,at
We agree. Commonwealth v. Cox, 581 Pa. 107, 126-28, 863 A.2d 536, 547-48 (2 04)
The statements by the prosecutor that Petitioner lied were in reference to. and refuting spec fie testimony
by Petitioner and argument by defense counsel that Petitioner grabbed the gun from one his attackers
and subsequently dropped it on the ground at the scene. (T., pp. 419-421). These.argprifen addressed
the evidence that no gun Was found at the scene despite the fact the police arrived and beg . securing
the scene as Petitioner Was leaving the scene and cartridges consistent with.ahandgun,wer found in
.Petitioner's vehicle. The comments also address the evidence that indicated that Petitioner stated that he
had not fired a.gun that day when he at trial he acknowledged, and the. video confirmed, th. t: he; in. fact,
fired the gun. The comments also are directed to Petitioner's testimonylhat.he intended to all the
police after the shooting but he didn't have a phone when the VA officer testified that he f I I &that
Petitioner had an operational cell phone in his possession and it was the VA officer who Ca led the
police. Therefore, counsel was not ineffective for failing to object to the above statements ad
argument.
Petitioner also claims that the prosecutor improperly referred to the shooting as "m rder" when
he stated: "And you have to ask yourself, why didn't he call the police? We didn't he repo that he just
46
murdered some kid, shot him in the back of the: head? (T., p.. 462) Although the word "m rder" was
used, the use of this word in this context does not warrant a finding that counsel was ineff ctive in
failing to object. In Commonwealth v. Brown, 711 A.2d 444, 455 (1998) the Court discus ed the use of
the phrase "child murder" when referencing the defendant and stated:
"When viewed in context, this reference to Brown's attempts to avoid being arrest, as a.
child murderer is not so inflammatory that it rendered the jury incapable of rend ing a
fair verdict. In an abundance of caution, the prosecutor mitigated any perceived pr judice
to Brown when he withdrew this statement m front of the jury. Moreover, the trial ourt
gave the jury two instructions-one before opening statements and another before losing
arguments-that the arguments of counsel are not evidence.. id. at 52; and MT., F ruary
16, 1995, p. 24. We must presume that the jury followed these instructions.
Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992). Accordingly, no retie is due
for this claim. Commonwealth v. Brown, 711 A.2d 444, 455 (1998) (Emphasis ad ed)
In this case, despite the fact that the prosecutor used the word "murder" in referencing the act of
shooting the victim, it is also clear that he informed the jury that he did not believe that Pe itioner shot
victim intentionally. During his closing argument the prosecutor stated:
"Mr. Scott obviously is the one who caused the death of Derfick House, and it could be ar ed that he
did so recklessly, as I am to you." (T., p. 456) Considering the context of the statement, c unsel was
not ineffective failing to object to the statement or move fora mistrial.
Petitioner next alleges that the prosecutor improperly commented on F'etitioner's p st arrest, post
Miranda decision to terminate his interview with Detective DeFelice. (T., p. 462)
Detective DeFelice testified that he interviewed Petitioner on the morning of the shooting t police
headquarters and prior to doing so he gave him his Miranda warnings. (T., p. 231). Petiti ner waived
his rights and during the subsequent interview he denied that he fired a firearm at all that d y. (T., p.
235) Detective DeFelice reminded him that prior to the interview they had conducted a gu shot residue
test on his hands at which point Petitioner informed Detective DeFelice that he was clean g his guns
earlier in the day. Detective DeFelice then asked him if he shot anybody that night in the arking lot
47
and at that point Petitioner did not answer the question and ended the interview. (T., p.,2 7) During his
closing argument, the prosecutor made the: following comments:
"But that gun was his. Some kid didn't pull it out of his pocket.
He doesn't report it to the police. He never admits to either the VA officer or Det ctive
DeFelice what he did because he's conscious of his guilt. And when Detective De elice
says to him, Did you fire a gun that night?' He says, 'No, I didn't.' And they resp nded
with, 'Well, remember we did a gunshot residue test on your hands?' He said, 'We 1,
maybe I was cleaning my guns at home.' And just a brief aside about the gunshot sidue
kit, it's a test that Detective DeFelice has told you he did on the' defendant's hands o
show whether or not he recently fired a gun. You didn't hear any evidence about t e
results of that test because it wasn't in contention in this case. He admits to firing at
weapon. So whatever the results were were not brought into evidence because it ould
be a waste of your time. There's no point in getting into every single detail of this ase.
It's already admitted by the defendant, and that's the point. But when Detective De elice
then comes back, 'Are you sure you never fired a gun that night, 'lie ends the inte iew,
doesn't answer the question. And why? Because, of course, he knows what he di but he 1
didn't want to admit it" (T., pp. 461-462) (Emphasis added)
Petitioner contends that this, comment by the prosecutor was in .a.ditect violation of his:Fi
Amendment right to remain silent. At the PCRA hearing trial Counsel testified.that he did not recall the
various comments made dining the closing .argument of'the prosecutor and did not consid r making .a
motion for Mistrial on the'basis of any arguments that were heard during closing argumen . (T., pp.. 50-
51) Although.the above statement references the.temiination ofthe Interview,... the referen 'is* the.
Context that Petitioner.had.already told Detective DeFelice,. after being.given his Miranda arnhigs; That
he hadnot. fired .4 gun that. day. (T.,.p.. 235) .The. statement by Petitioner *that he had not f .ed a: gun that
.day was, compared to the evidence on the video, as well as Petitioner's admission at trial, at .he. had, iii
fact, fired a gun. (T.,pp.271-272) Although 'the prosecutor could have referenced both P itioner's
statement 'during .theinterview thathe.hadnotifire.d a gun With.his admission* trial witho t discussing
the termination of the interview, the.prosecutofs.statement. was not an attempt'to use Petit" ner's.
decision to terminate..the interview in order to impeach: any testimony or evidence subsequ ntly offered
by Petitioner *trial that he did not fire agun, as..that issue was, not in.dispute.. Therefore, al counsel
48
was not ineffective in failing to object to the comment or mOve for. a mistrial as Petitioner. as failed to
11
.prove.that he was prejudiced.
Petitioner's final argument is that it was error tonot. consider the alleged claims..of
ineffectiveness of counsel and in not finding that prejudice resuited.from.the ultiple
constitutional violations. However, no number of failedineffectivenesS claims may collec ively form a
basis .for relief if the....claimS individually fail: w do so.". Commonwealth v, .Reicl, 99 A.3d 47 ,.520 (2014)
As a result of of the foregoing,.Petitioners.PatA Petition was appropriately dismissed.
49