Com. v. McWhite, A. ( 2021 )

J-S27007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY LAMAR MCWHITE :
:
Appellant : No. 61 WDA 2021
Appeal from the PCRA Order Entered February 26, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001700-2010
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: DECEMBER 30, 2021
Appellant, Anthony Lamar McWhite, appeals from the order entered on
February 26, 2021, which denied his first petition filed under the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The facts and procedural history of Appellant’s case are as follows. On
May 3, 2010, Appellant was charged with homicide.1 PCRA Court Opinion,2
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2501.
2The Honorable Debra A. Pezze presided over Appellant’s underlying jury trial
proceedings and the beginning of his PCRA proceedings. Judge Pezze
authored the first PCRA Court Opinion, entered January 8, 2015. Judge Pezze
passed away in 2016 and, thereafter, Appellant’s case was reassigned to the
Honorable Timothy A. Krieger. Judge Krieger authored the PCRA Court
Opinion, entered February 25, 2021.
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2/25/21, at 1. The PCRA court aptly summarized the relevant evidence
adduced at trial:
On April 3, 2010, at approximately 8:49 p.m., Shawntez “Sleeze”
Weems was shot in the back while on his way to make a drug sale,
walking down Constitution Boulevard, in the City of New
Kensington, Westmoreland County, Pennsylvania. Eight
discharged cartridge casings consistent with a .40 caliber gun
were discovered in an area between an abandoned building and
an apartment building located on Constitution Boulevard.
Shortly before the shooting, a witness saw [Appellant] standing in
the shadows across the street from Weems’s residence. Two
witnesses saw Weems come out of his house and walk down the
street. They then saw [Appellant] follow him. Several minutes
later, they heard gunshots.
The Commonwealth additionally provided evidence that on May
29, 2008, [Appellant] was pistol whipped and robbed. [Appellant]
learned that Weems was involved in this incident and, in the
aftermath, made threats to retaliate against him. One of the
Commonwealth witnesses testified that shortly before Weems was
shot, [Appellant] said that he was going to kill him. Another
testified that he saw [Appellant] in the afternoon on the day
Weems was shot and heard [Appellant] say that he was going to
“put a cap in Sleeze” because Sleeze took his drugs and money
and that they could “get” Sleeze “outside of his crib, referring to
his house.”
Sheldon “Pete” Pinnock, and Erica O’Neal, Pinnock’s girlfriend,
were at the mall on the night Weems was killed. Pinnock received
a telephone call from [Appellant] who said that he was walking
behind Weems and that he “had the drop on him.” [Appellant]
asked Pinnock to pick [Appellant] up at Pinnock’s girlfriend’s
house. In a subsequent telephone call, [Appellant] told Pinnock
that he shot Weems. Pinnock met [Appellant] and drove him to
his car. On the ride to [Appellant’s] car, [Appellant] told Pinnock
that he had just shot at Sleeze with a .40 caliber gun. [Appellant]
asked Pinnock to get rid of the gun for him and told Pinnock that
he had hidden it in a bag under the porch stairs at Pinnock’s
girlfriend’s house.
After dropping off [Appellant], Pinnock retrieved the gun and gave
it to Don Moyer with instructions to take the gun to Esquipula
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“Polo” Griego’s house. A week or so later, Pinnock went to jail
and telephoned Griego, telling him to throw the gun in the river.
Subsequently, Griego took police to the place where he disposed
of the firearm. Divers were able to locate and secure the gun from
the water. The firearm found in the river was a .40 caliber Glock
handgun. An analysis of tool markings associated with this
weapon showed that all eight cartridge casings found between the
buildings on Constitution Boulevard were discharged from it.
Latoyia Graves testified that she was [Appellant’s] girlfriend and
that she was with [Appellant] on April 3, 2010. On that date, the
two rode dirt bikes into the early evening. Around 7:00 p.m., they
went to [Appellant’s] mother’s house, located on Fifth Avenue in
the City of New Kensington. [Appellant’s] mother’s house was
“close to a mile” from where Weems was killed. [Appellant] took
a shower and then Graves took a shower. [Appellant], without
Graves, left the house for about [20] or [30] minutes. Graves
testified that she and [Appellant] then went to Pittsburgh after it
was dark outside but before 8:00 p.m.
On direct examination, Graves acknowledged that she had been
convicted of [r]eceiving [s]tolen [p]roperty in 2003 and
volunteered that she was “on [f]ederal probation, supervised
release, for distribution of crack cocaine.” On cross-examination,
the prosecutor asked Graves two questions about the sentence
she received in federal court. On re-direct examination, counsel
for [Appellant] asked Graves if she was doing well while on federal
probation. The court sustained the prosecutor’s objection after
defense counsel stated before the jury that Graves has “absolutely
no problem on probation, going to school, that she has a good
relationship with her probation officer.” No instruction to
disregard counsel’s statement was requested by the prosecutor or
given by the court. Additional testimony was offered that, at one
point during the investigation, Graves was interviewed by police
at the Federal Probation Office.
On May 2, 2010, Officer Samuel Long, of the New Kensington
Police Department, saw [Appellant] driving a black Buick with
tinted windows. He knew that there was an arrest warrant for
[Appellant]. This warrant was issued for criminal charges not in
connection with the homicide. As officers followed [Appellant’s]
car, [Appellant] jumped out of the vehicle. [Appellant] was found
hiding under a nearby car and taken into custody.
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Marvin Ainsco, in a non-responsive answer to a question by the
prosecutor, stated that he knew [Appellant] as a “drug dealer.”
Another witness, Erin Jarosinski, testified that she was with
[Appellant] on January 12, 2010, when he made statements
threatening the victim. She said that they had been going
together to get drugs and that she knew [Appellant] because he
sold drugs. Jarosinski also admitted that she was a drug addict
during the time she knew [Appellant]. No other reference was
made to drug dealing activity on the part of [Appellant].
Id. at 4-7 (citations to the record omitted). On July 17, 2012, a jury found
Appellant guilty of murder in the first degree and Appellant was sentenced to
life without the possibility of parole. Id. Appellant’s judgment of sentence
was affirmed on August 23, 2013. See Commonwealth v. McWhite, 2013
WL 11256408 (Pa. Super. 2013) (unpublished decision).
Relevant to the current appeal, the PCRA court summarized:
On October 8, 2013, [Appellant], acting pro se, filed a timely
[PCRA] petition[.] Issues raised in this pro se petition were: (1)
[i]neffective assistance of counsel in failing to object to references
to [Appellant] as a “known drug dealer”; (2) [i]neffective
assistance of counsel in failing to object to evidence that the police
arrested [Appellant] on a warrant issued for other criminal
offenses; and (3) [i]neffective assistance of counsel in failing to
object to a jury instruction regarding flight as evidence of guilt.
Counsel was appointed to represent [Appellant] in this
proceeding.
On February 25, 2014, an amended PCRA petition was filed by
counsel on [Appellant’s] behalf. This counseled petition raised the
issues set forth in [Appellant’s] pro se petition as well as an
additional issue of ineffectiveness of counsel for failing to object
to evidence that [Appellant’s] alibi witness had been convicted of
cocaine distribution.
On September 16, 2014, counsel filed a second amended PCRA
petition raising the issue of ineffectiveness of counsel for failing to
call Austin King, an [additional] alibi witness for [Appellant].
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PCRA Court Opinion, 2/25/21, at 2. On January 8, 2015, the PCRA court filed
an opinion addressing Appellant’s issues and an order giving notice of its intent
to dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. See PCRA
Court Notice of Intent to Dismiss, 1/8/15. On January 21, 2015, Appellant,
through counsel, filed a response to the PCRA court’s notice, within which he
requested to further investigate and develop his claim with respect to alibi
witness Austin King. See Response to Notice of Intent to Dismiss, 1/21/15.
On March 27, 2015, the PCRA court granted Appellant’s request to further
develop his alibi witness claim and elected not to issue an order formally
dismissing his other claims at that time. See PCRA Court Order, 3/27/15.
In the ensuing years, Appellant, through various appointed counsel,
pursued investigation of his alibi witness claim. See PCRA Court Opinion,
2/25/21, at 3. Ultimately, an evidentiary hearing was held on December 18,
2020, at which time Appellant withdrew his PCRA claim “insofar as it raised
[the issue concerning ineffectiveness of counsel in failing to investigate and
call Austin King as an alibi witness for [Appellant].” Id. at 3-4. Accordingly,
the PCRA court entered a final order denying and dismissing Appellant’s PCRA
petition on February 26, 2021. This appeal followed.3
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3 Appellant filed a notice of appeal on January 4, 2021, prior to the PCRA
court’s final order entered on February 26, 2021. We treat his notice of appeal
as timely filed on the day upon which the final appealable order was entered.
See Pa.R.A.P. 905. Appellant and the PCRA court complied with the dictates
of Pa.R.A.P. 1925.
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Appellant raises the following issues on appeal:
1. Whether the [PCRA c]ourt erred in determining trial counsel
provided effective assistance of counsel despite their failure to
object to or request a limiting jury instruction regarding witness
testimony regarding the Appellant’s involvement in the
distribution of controlled substances?
2. Whether the [PCRA c]ourt erred in determining trial counsel
provided effective assistance of counsel despite [eliciting
testimony] that the Appellant was arrested on separate pending
criminal charges during cross-examination of Officer Samuel
Long?
3. Whether the [PCRA c]ourt erred in determining trial counsel
provided effective assistance of counsel despite their failure to
object to irrelevant evidence that alibi witness Latoyia Graves was
on probation for distribution of cocaine, which was not admissible
to impeach her credibility?
4. Whether the [PCRA c]ourt erred in determining trial counsel
provided effective assistance of counsel despite their failure to
object to the flight and concealment as consciousness of guilt
instruction despite a lack of evidence the Appellant was aware he
was being pursued for homicide charges at the time of the alleged
flight?
Appellant’s Brief at 3-4.
Our standard of review for challenges to the denial and dismissal of
petitions filed pursuant to the PCRA is well-settled.
We must determine whether the findings of the PCRA court are
supported by the record and whether the court's legal conclusions
are free from error. The findings of the PCRA court and the
evidence of record are viewed in a light most favorable to the
prevailing party. The PCRA court's credibility determinations,
when supported by the record, are binding; however, this [C]ourt
applies a de novo standard of review to the PCRA court's legal
conclusions. We must keep in mind that the petitioner has the
burden of persuading this Court that the PCRA court erred and
that such error requires relief. Finally, this Court may affirm a
valid judgment or order for any reason appearing of record.
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Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations
omitted).
All of Appellant’s claims assert that trial counsel was ineffective.
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10
A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an appellant must plead and prove by a
preponderance of the evidence that[ ] (1) his underlying claim is
of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceeding would have been different. Failure to satisfy any prong
of the test will result in rejection of the appellant's ineffective
assistance of counsel claim.
Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations and quotation marks omitted). As this Court explained:
A claim has arguable merit where the factual averments, if
accurate, could establish [grounds] for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) (“if a
petitioner raises allegations, which, even if accepted as true, do
not establish the underlying claim . . . , he or she will have failed
to establish the arguable merit prong related to the claim”).
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client's interests. We do not employ a hindsight
analysis in comparing trial counsel's actions with other efforts he
may have taken.
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Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted).
Appellant claims that trial counsel was ineffective for eliciting, failing to
object to, or failing to limit the introduction of references to: (1) Appellant
being a drug dealer (2) Appellant’s flight from law enforcement as police
officers attempted to arrest Appellant for an unrelated charge; and (3) alibi
witness Graves’ distribution of crack cocaine conviction. Appellant’s Brief at
9. He also claims that trial counsel was ineffective for failing to object to a jury
instruction, which permitted the jury to consider his flight as consciousness of
guilt. Id. We examine Appellant’s first three claims together.
Our Supreme Court previously explained:
Counsel [is] not constitutionally required to forward any and all
possible objections at trial, and the decision of when to interrupt
oftentimes is a function of overall defense strategy being brought
to bear upon issues which arise unexpectedly at trial and require
split-second decision-making by counsel. The fact that an
appellate court, reviewing a cold trial record, cannot prognosticate
a reasonable basis for a particular failure to raise a plausible
objection does not necessarily prove that an objectively
reasonable basis was lacking. Objections sometimes highlight the
issue for the jury, and curative instructions always do.
Commonwealth v. Spotz, 870 A.2d 822, 832 (Pa. 2005). It is a PCRA
petitioner’s burden to demonstrate that no competent counsel would have
chosen a particular course of action or inaction, or that an unchosen
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alternative offered a significantly greater potential chance of success.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-1044 (Pa. Super.
2019). Appellant is also required to make an actual showing of prejudice. Id.
at 834-835.
We have carefully reviewed the certified record, the relevant law, the
notes of testimony, the submissions of the parties, and the PCRA opinions
issued by Judge Pezze and Judge Krieger, respectively. Based upon our
review, we agree with the able discussion and analysis provided by the PCRA
courts on Appellant’s first three issues. They noted, inter alia, that (1)
references to Appellant as a drug dealer would be permitted as motive
evidence and trial counsel reasonably chose to overlook them because such
references would “otherwise go unnoticed among the repeated references to
drug dealing on the part of the victim and other Commonwealth witnesses;”
(2) for similar reasons, Appellant could not demonstrate prejudice by alibi
witness Graves’s volunteered testimony of her own drug involvement; and (3)
eliciting testimony that officers arrested Appellant on an unrelated charge was
a reasonable strategy to rebut the Commonwealth’s inference that Appellant
fled from officers because he was guilty of the homicide. See PCRA Court
Opinion, 2/25/21; PCRA Court Opinion, 1/8/15. Thus, we affirm the dismissal
order on the grounds set forth in the PCRA courts’ prior opinions. Id.
In his fourth issue, Appellant challenges trial counsel’s effectiveness in
failing to object to a jury instruction regarding flight as evidence of guilt.
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Appellant argues that “[t]here is simply no evidence to suggest [ ] Appellant
was aware he would be charged with homicide when he attempted to flee from
Officer [Samuel] Long.” Appellant’s Brief at 28-29. The Commonwealth
rebuts Appellant’s contention by citing to notes of testimony from the jury trial
which established that Appellant contacted a friend to transport him from the
crime scene, confessed to that friend that he shot someone, and asked that
friend to dispose of the gun. Commonwealth’s Brief at 23.
A jury charge is proper if supported by the evidence of record.
Commonwealth v. Washington, 692 A.2d 1024, 1028 ([Pa.]
1997). [Our Supreme] Court has held that “when a person
commits a crime, knows that he is wanted therefor, and flees or
conceals himself, such conduct is evidence of consciousness of
guilt, and may form the basis of a conviction in connection with
other proof from which guilt may be inferred.” Commonwealth
v. Rios, 684 A.2d 1025, 1025 ([Pa.] 1996), quoting
Commonwealth v. Coyle, 203 A.2d 782, 789 ([Pa.] 1964).
Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (cleaned up; parallel
citations omitted).
Appellant’s challenge argues that the record is devoid of evidence
demonstrating his guilty knowledge. Guilty knowledge, however, may be
inferred by circumstantial evidence. Commonwealth v. Robinson, 128 A.3d
261, 267 (Pa. Super. 2015). Here, multiple witnesses testified that they heard
Appellant make threats toward Weems prior to and including the day of his
death. Subsequently, Appellant confessed to Pinnock that he shot Weems
when he asked Pinnock to pick him up. He later told Pinnock that he shot
Weems with a .40 caliber gun, hid the murder weapon, and asked Pinnock to
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dispose of it. Accordingly, sufficient circumstantial evidence supported the
inference of guilty knowledge, as required for a jury instruction regarding flight
as evidence of consciousness of guilt. Thus, the trial court would have
properly overruled any objection to the jury instruction. PCRA Court Opinion,
1/8/15, at 3. Moreover, Appellant fails to establish in what way he was
prejudiced by such jury instruction when “the Commonwealth’s evidence in
support of a conviction was overwhelming.” PCRA Court Opinion, 2/25/21, at
14; see also Rios, 684 A.2d at 1025 (flight instruction may form basis of
conviction “in connection with other proof from which guilt may be inferred”).
Thus, Appellant’s fourth issue warrants no relief.
We affirm the dismissal of Appellant’s petition. Because we adopt a
portion of the PCRA courts’ opinions, the parties are directed to attach a copy
of the January 8, 2015 and February 25, 2021 PCRA court opinions to all future
filings pertaining to the disposition of this appeal.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2021
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