Com. v. Warner, L. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEVON WARNER :
:
Appellant : No. 2171 EDA 2019
Appeal from the PCRA Order Entered July 17, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005973-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEVON WARNER :
:
Appellant : No. 2172 EDA 2019
Appeal from the PCRA Order Entered July 17, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005975-2008
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 18, 2020
Appellant Levon Warner, appeals from the orders dismissing his first
timely Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition.
Appellant argues that trial counsel was ineffective for failing to object to the
trial court’s reasonable doubt instruction. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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We summarize the facts underlying Appellant’s convictions as follows:
In the spring of 2008, co-conspirator Howard Cain developed a
plan to rob a Bank of America branch located inside a Philadelphia
supermarket. Mr. Cain recruited several individuals to carry out
the plan, which began with a series of separate robberies to obtain
weapons and a getaway vehicle. Appellant, however, did not
participate in these preliminary robberies. On the morning of May
3, 2008, Appellant and Mr. Cain met with co-defendant Eric Floyd
to consummate the bank robbery. Prior to departing for the bank,
Mr. Floyd and Mr. Cain disguised themselves in burqas. Appellant
wore a wig, glasses, and a dust mask to obscure his face. Mr.
Floyd drove the men to the supermarket in a stolen Jeep. Upon
arriving at the supermarket parking lot, Mr. Floyd parked the
vehicle, picked out a shopping cart, and placed a box inside the
cart. The box contained a stolen SKS assault rifle. When the co-
conspirators entered the supermarket, Mr. Floyd stood with the
shopping cart near the door to the bank.
With Mr. Floyd serving as a lookout, Mr. Cain and Appellant
entered the bank, stood in the back, and watched a bank manager
unlock the gate to the teller area. Once the gate was unlocked,
Mr. Cain rushed toward the manager, grabbed her, dragged her
into the teller area, brandished a handgun, and demanded that
the tellers place money into a bag Mr. Cain was carrying. Armed
with a handgun, Appellant paced in front of the teller windows as
the tellers complied with Mr. Cain’s demands. The tellers placed
approximately $50,000.00 into Mr. Cain’s bag, along with a GPS
tracking device. The tracking device activated at 11:27 a.m.,
when the thieves exited the bank.
After the robbery, Appellant, Mr. Cain, and Mr. Floyd returned to
the Jeep. Mr. Floyd served as the getaway driver. Within minutes,
calls went out over police radio relaying information about the
robbery and the suspects. Philadelphia Police Sergeant Stephen
Liczbinski received the call, spotted the getaway car, and
commenced a pursuit. During the chase, someone in the Jeep
said, “Bang him.” At that point, Mr. Cain asked Appellant for the
assault rifle, which Appellant handed to him. Mr. Floyd stopped
the Jeep, and Mr. Cain exited with the assault rifle. Sergeant
Liczbinski stopped his vehicle behind the Jeep, exited, and
approached the Jeep. Before Sergeant Liczbinski could draw his
service weapon, Mr. Cain opened fire with the assault rifle and
killed the sergeant.
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After the shooting, Mr. Cain reentered the Jeep; and Mr. Floyd
drove to a second getaway vehicle, a minivan, parked nearby.
Appellant drove the minivan a short distance before Mr. Cain
ordered him to pull over. Appellant pulled over, and the suspects
exited and split up. Later that day, Mr. Cain died during a
shootout with police. Police subsequently arrested Appellant, and
he provided a statement detailing his participation in the robbery.
Police did not arrest Mr. Floyd until May 7, 2008, when a tipster
led them to the abandoned house where Mr. Floyd was hiding. On
May 8, 2008, Mr. Floyd provided an inculpatory statement
regarding his own participation in the bank robbery.
Commonwealth v. Warner, 2013 WL 11299285, *1 (Pa. Super. Jan. 14,
2013) (unpublished mem.).
At the above docket numbers, the Commonwealth charged Appellant
with three counts of robbery, one count each of conspiracy, first-degree
murder, and possession of an instrument of crime, as well as firearms
violations.1 Appellant’s cases were consolidated for trial with that of his co-
defendant, Mr. Floyd.
Following closing arguments, the trial court charged the jury. In
relevant part, the trial court posed the following analogy while charging the
jury on reasonable doubt:
You have heard me talk about the Commonwealth’s burden of
proof. It is the highest burden in the law. There is nothing like
proof beyond a reasonable doubt. The Commonwealth bears that
burden in this case and every case but, ladies and gentlemen, that
does not mean the Commonwealth must prove its case beyond all
doubt.
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1 18 Pa.C.S. §§ 3701, 903, 2502(a), 907, 908.
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The Commonwealth is not required to meet some mathematical
certainty. The Commonwealth is not required to demonstrate the
complete impossibility of innocence. The Commonwealth is not
going to answer all of your questions. The Commonwealth must
address your concerns to a reasonable doubt. A reasonable doubt
is a doubt that would cause a reasonably careful and sensible
person to pause, to hesitate, to refrain from acting upon a matter
of the highest importance to their own affairs or to their own
interests.
A reasonable doubt must fairly arise out of the evidence that was
presented or out of the lack of evidence presented with respect to
some element of each of the crimes charged. You see, the
Commonwealth has to prove the crime was committed and it has
to prove the person on trial committed the crime. So what you
are looking to see is these crimes, each one is defined by the
Legislature and they are defined by the elements. Did the
Commonwealth meet those elements? Did they meet them to
proof beyond a reasonable doubt?
It may be helpful to think about reasonable doubt this way. Now
this was a very long slow jury selection but one of the benefits of
the length of the jury selection is that I had the opportunity to
speak with each of you individually. So I know that each one of
you has someone in your life that you love. Each of you has a
precious one, a spouse, a significant other, a sibling, a niece, a
nephew, a grandchild. Each one of you loves somebody.
Think for a moment if your precious one was told by their
physician that they have a life-threatening condition and that the
only protocol for that life-threatening condition was surgery. Now,
very likely you are going to ask for a second opinion. If you are
like me, you will go through your Rolodex and call everybody you
know who knows anything at all about medicine. Tell me about
this disease. Tell me what you know about this surgery. Tell me
who you know does the surgery. Who is the best in the city? Who
is the best in the country? How can I help my loved one? You will
research everything you can high and low but at some point, the
question will be called. If you go forward with the surgery, it is
not because you have moved beyond all doubt. Ladies and
gentlemen, there are no guarantees. If you go forward, it is
because you have moved beyond all reasonable doubt.
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A reasonable doubt must be a real doubt, ladies and gentlemen.
It cannot be a doubt that is imagined or manufactured. It cannot
be a doubt that you create to avoid carrying out an unpleasant
responsibility. You may not find [Appellant] or Eric Floyd guilty
based upon a mere suspicion. The Commonwealth bears its
burden of proving each person guilty beyond a reasonable doubt.
If the Commonwealth has met that burden, then Levon Warner
and Eric Floyd are no longer presumed to be innocent and you
should find each one individually guilty; on the other hand, if the
Commonwealth has not met its burden, then you must find each
one individually not guilty.
N.T. Trial, 7/26/10, at 57-61.2 Appellant did not object to this particular
instruction.
The jury found Appellant guilty of the above crimes but ultimately “could
not reach a unanimous decision regarding the imposition of the death
penalty.” Warner, 2013 WL 11299285 at *2. Accordingly, the trial court
sentenced Appellant to life imprisonment without parole and a consecutive
aggregate sentence of 67½ to 135 years’ imprisonment. While still
represented by trial counsel, Appellant appealed, and this Court affirmed on
January 14, 2013. See id. at *1. Appellant did not challenge the jury
instruction on direct appeal and did not file a petition for allowance of appeal
with our Supreme Court.
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2 Except for the surgery analogy, the trial court’s jury instruction generally
tracked the language set forth in Pennsylvania’s Suggested Standard Criminal
Jury Instruction § 7.01 (“Presumption of Innocence—Burden of Proof—
Reasonable Doubt”).
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On January 21, 2014, Appellant filed timely pro se PCRA petitions at
both docket numbers. At docket no. 5973-2008, the docket reflects that on
August 19, 2014, Todd Mosser, Esq., entered his appearance as Appellant’s
counsel. On February 10, 2015, the docket at no. 5973-2008 states that the
PCRA court relieved Attorney Mosser and that Barnaby Wittels, Esq., entered
his appearance. The docket at no. 5975-2008 does not reflect any entry of
appearance by Attorney Mosser, but states that on November 4, 2014,
Attorney Wittels entered his appearance.
Eventually, on December 21, 2017, Attorney Wittels filed amended
PCRA petitions at both docket numbers. The petitions challenged the trial
court’s reasonable doubt instruction and alleged that trial and direct appeal
counsel were ineffective for failing to challenge the instruction. On October
23, 2018, Attorney Wittels filed a second amended PCRA petition, which listed
both docket numbers.3 On March 1, 2019, the Commonwealth filed a motion
to dismiss Appellants’ PCRA petition at both docket numbers.4 On May 30,
2019, at both docket numbers, the PCRA court issued a Pa.R.Crim.P. 907
notice, which stated that Appellant’s claims lacked merit. On June 19, 2019,
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3We note that only the docket at no. 5975-2008 reflects Appellant’s second
amended PCRA petition. The docket at no. 5973-2008 does not reflect any
such filing.
4 Only the docket at 5973-2008 reflects the Commonwealth’s motion to
dismiss. The docket at 5975-2008 does not have an entry for the
Commonwealth’s motion to dismiss.
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Appellant filed a response to the Rule 907 notice reiterating his challenge to
the trial court’s instruction. On July 17, 2019, the PCRA court formally
dismissed both PCRA petitions.
On July 30, 2019, Appellant filed timely notices of appeal at each docket
number. Neither the records nor dockets reflect any motion to withdraw by
Attorney Wittell. Nonetheless, both dockets state that on August 19, 2019,
the PCRA court granted Attorney Wittell’s request to withdraw and appointed
James F. Berardinelli, Esq., as appellate counsel. Appellant timely filed a
court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues:
1. Did the PCRA court err in finding that the defendant’s right of
due process under the 5th, 6th and 14th amendments of the U.S.
Constitution and Article 1, §9 of the Pennsylvania Constitution was
not violated by the trial court’s constitutionally infirm reasonable
doubt instruction which contained a hypothetical that
impermissibly raised the degree of reasonable doubt required to
acquit, thereby directing the jury to favor conviction, and
improperly structured the hypothetical in terms of the jury
proceeding to take action as opposed to hesitating?
2. Did the PCRA court err in finding that trial counsel and all prior
appellate/PCRA counsel were not ineffective for failing to object to
the violation of defendant’s right of due process under the 5th, 6th
and 14th amendments of the U.S. Constitution and Article 1, §9 of
the Pennsylvania Constitution was not violated by the trial court’s
constitutionally infirm reasonable doubt instruction which
contained a hypothetical that impermissibly raised the degree of
reasonable doubt required to acquit, thereby directing the jury to
favor conviction, and improperly structured the hypothetical in
terms of the jury proceeding to take action as opposed to
hesitating?
Appellant’s Brief at 3.
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We summarize both of Appellant’s arguments together. Appellant first
argues that he must be awarded a new trial because the trial court’s
reasonable-doubt instruction violated his right to due process. Appellant’s
Brief at 10. Appellant alleges that the trial court’s analogy about pursuing a
life-saving surgery for a loved one “impermissibly raised the degree of
reasonable doubt required to acquit,” and directed the jury to favor conviction.
Id. In support, Appellant cites two unreported federal district court decisions:
Brooks v. Gilmore, 2017 WL 3475475 (E.D. Pa. Aug. 11, 2017) (unpublished
mem.), in which a federal court found unconstitutional an almost identical jury
instruction given by the same judge, and McDowell v. DelBalso, 2019 WL
7484699 (E.D. Pa. Jan. 23, 2019) (unpublished mem.). Id. at 13-14.
Appellant contends that the trial court improperly structured the hypothetical
in terms of the jury “proceeding to take action” as opposed to hesitating to
act. Id. (citing Holland v. United States, 348 U.S. 121, 140 (1954), and
Brooks). Additionally, Appellant, citing an unrelated federal appellate case,
argues that the Commonwealth conceded that counsel’s failure to object to
the same instruction was ineffective assistance of counsel. Id. at 16 (citing
Grant v. Giroux, No. 17-2559 (3d Cir. 2018)).5
In support of his second issue, Appellant argues that trial counsel was
ineffective for failing to object to the instruction, which Appellant alleges
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5 Appellant did not provide any other citation.
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violated his due process rights. Id. at 15-16. Appellant asserts that due to
the fundamental nature of the principle of reasonable doubt, there was no
reasonable basis for trial counsel to not object to the instruction that “stripped
[the defendant] of vital protection.” Id. at 16 (citing Brooks). Appellant also
contends that the prejudice resulting from the failure to object to an
unconstitutional reasonable doubt instruction is presumed because a defective
reasonable doubt instruction constitutes structural error. Id. (citing Sullivan
v. Louisiana, 508 U.S. 275 (1993), and Weaver v. Massachusetts, 137 S.
Ct. 1899 (2017)). Appellant asserts that he must be awarded a new trial due
to ineffective assistance of trial counsel.
The Commonwealth did not address whether the trial court’s jury
instruction was unconstitutional. The Commonwealth, however, argues that
Appellant’s trial counsel’s decision to not object was reasonable.
Commonwealth’s Brief at 21-22. The Commonwealth claims that at least one
other decision by the same district court in which Brooks was decided did not
find a similar jury instruction unconstitutional. Id. (citing Johnson v.
Varner, No. 01-CV-2409 (E.D. Pa. Sept. 4, 2003)).6 Similarly, the
Commonwealth argues that Pennsylvania courts have routinely upheld the
same jury instruction. Id. (citing Commonwealth v. Corbin, 2016 WL
1603471 (Pa. Super. April 19, 2016) (unpublished mem.) (rejecting the
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6 The Commonwealth did not provide any other citation.
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challenge to the identical illustrative hypothetical on reasonable doubt issued
by the same trial judge herein), Commonwealth v. Gant, No. 1612 EDA
2007 (Pa. Super. Sept. 21, 2009) (unpublished mem.) (same), and
Commonwealth v. Johnson, No. 1639 EDA 1999 (Pa. Super. Aug. 3, 2000)
(unpublished mem.) (same)).7 Accordingly, the Commonwealth argues that
because other Pennsylvania and federal courts reached the same conclusion,
it was reasonable for Appellant’s trial counsel to not object. Id.More importantly, the Commonwealth reasons that Appellant is not
entitled to a presumption of prejudice under Sullivan because ineffectiveness
claims are subject to the requirement that the petitioner must affirmatively
prove prejudice. Id. at 23- 24 (citing Strickland v. Washington, 466 U.S.
668, 693 (1984)).8 The Commonwealth argues that Appellant cannot prove
such prejudice because there was compelling evidence of Appellant’s guilt
such as DNA, a detailed confession, and eyewitness testimony. Id. at 22.
This Court’s review of an order dismissing a PCRA petition is “limited to
examining whether the PCRA court’s determination is supported by the
evidence of the record and whether it is free of legal error.” Commonwealth
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7 The Commonwealth’s citation of non-precedential, unpublished
memorandum decisions of this Court filed prior to May 2, 2019 is prohibited
under 210 Pa. Code § 65.37 and does not provide persuasive nor reliable legal
authority in this case.
8 See Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (adopting
Strickland).
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v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011). To the extent Appellant’s
issues raise questions of law, we review the PCRA court’s legal conclusions de
novo. Commonwealth v. Diaz, 226 A.3d 995 (Pa. 2020).
We note that a jury charge that misstates the level of reasonable doubt
necessary for an acquittal violates due process. Cage v. Louisiana, 498 U.S.
39, 41 (1990).9 Such an error on direct appeal constitutes structural error.10
See Sullivan, 508 U.S. at 281-82;11 see generally Weaver, 137 S. Ct. at
1908; Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013).
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9 See also Sullivan, 508 U.S. at 278 (“It is self-evident, we think, that the
Fifth Amendment requirement of proof beyond a reasonable doubt and the
Sixth Amendment requirement of a jury verdict are interrelated). On direct
appeal, when an appellate court reviews a challenge to a trial court’s
reasonable doubt instruction on direct appeal, the instruction must be read as
a whole, instead of in isolated fragments. Commonwealth v. Cook, 952
A.2d 594, 626-27 (Pa. 2008). “An instruction will be upheld if it clearly,
adequately and accurately reflects the law. The trial court may use its own
form of expression to explain difficult legal concepts to the jury, as long as the
trial court’s instruction accurately conveys the law.” Id. (quoting
Commonwealth v. Spotz, 759 A.2d 1280, 1287 (Pa. 2000)). Further, we
note that trial courts are given great discretion in framing jury instructions.
Commonwealth v. Eichinger, 915 A.2d 1122, 1138 (Pa. 2007).
10 “The ‘structural error’ concept is not commonplace in Pennsylvania
jurisprudence. It is closely allied to the notion of fundamental error.”
Commonwealth v. Baroni, 795 A.2d 1007, 1009 n.2 (Pa. Super. 2002).
11 The Sullivan Court reasoned that “a misdescription of the burden of proof
. . . vitiates all the jury’s findings. A reviewing court can only engage in pure
speculation—its view of what a reasonable jury would have done. And when
it does that, the wrong entity judge[s] the defendant guilty.” Sullivan, 508
U.S. at 281 (citations omitted).
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In Weaver, the United States Supreme Court discussed structural errors that
were preserved on direct appeal, where prejudice is presumed, and the
prejudice prong of the ineffectiveness analysis where the underlying claim of
alleged counsel’s ineffectiveness is a structural defect.12 Weaver, 137 S. Ct.
at 1907-12. Specifically, the High Court held that for a claim of ineffective
assistance of counsel for failure to object to the closing of the courtroom
during voir dire, the petitioner is required to prove that counsel’s omission
prejudiced the defendant. Id. at 1912-13. Even though the claim could have
resulted in a new trial if it was raised on direct appeal without a harmless error
analysis, the petitioner must still satisfy the Strickland prejudice
requirement:
[I]n the case of a structural error where there is an objection at
trial and the issue is raised on direct appeal, the defendant
generally is entitled to “automatic reversal” regardless of the
error’s actual “effect on the outcome.”
The question then becomes what showing is necessary when the
defendant does not preserve a structural error on direct review
but raises it later in the context of an ineffective-assistance-of-
counsel claim. To obtain relief on the basis of ineffective
assistance of counsel, the defendant as a general rule bears the
burden to meet two standards. First, the defendant must show
deficient performance—that the attorney’s error was “so serious
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12 The Weaver Court identified three classes of structural error. “First, an
error has been deemed structural in some instances if the right at issue is not
designed to protect the defendant from erroneous conviction but instead
protects some other interest.” Weaver, 137 S. Ct. at 1908. “Second, an
error has been deemed structural if the effects of the error are simply too hard
to measure.” Id. “Third, an error has been deemed structural if the error
always results in fundamental unfairness.” Id.
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that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Second, the defendant must
show that the attorney’s error “prejudiced the defense.”
Id. at 1910 (citations omitted); Commonwealth v. Isaac, 205 A.3d 358,
365 (Pa. Super. 2019) (reiterating “that an error that would invalidate a
conviction on direct appeal need not necessarily do so on collateral review.”
(discussing Weaver)).13 “Consistent with Weaver, the Pennsylvania
Supreme Court has held on several occasions that the absence of harmless
error for purposes of direct appeal does not equate to presumed prejudice on
collateral review.” Isaac, 205 A.3d at 365-66.14
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13Cf. also Commonwealth v. Koehler, 229 A.3d 915, 955 n.8 (Pa. 2020)
(Dougherty, J., concurring and dissenting) (noting the High Court has
recognized that “some structural errors, when raised collaterally (as here), as
opposed to on direct review . . . still require a showing of prejudice.” (citing
Weaver, 137 S. Ct. at 1910)).
14 Cf. also Commonwealth v. Fisher, 813 A.2d 761, 774-75 (Pa. 2002)
(Saylor, J., concurring). In Fisher, the petitioner brought an ineffective
assistance of counsel claim based on trial counsel’s failure to object to a
reasonable doubt instruction. Fisher, 813 A.2d at 774-75. In regard to
prejudice, the petitioner argued that errors involving the reasonable doubt
standard can never be harmless. Id. Justice Saylor concurred in the result,
reasoning that the petitioner was not entitled to relief and found the petitioner
had failed to argue that counsel’s failure to object to a reasonable doubt
instruction prejudiced him. Id. (agreeing that while “errors involving the
reasonable doubt standard can never be harmless” when that assertion is
raised on “direct review, in this case, the claim is presented in the form of a
collateral attack and governed by an ineffectiveness standard. [The
petitioner] must therefore demonstrate that counsel’s omission, namely, his
failure to object, had an actual adverse effect on the outcome of the
proceedings, that is, that there is a reasonable probability the verdict would
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In sum, whether the defendant is entitled to a presumption of prejudice
after it is determined there was a structural defect on direct appeal is different
from the prejudice that a PCRA petitioner must establish when claiming
counsel was ineffective. See id.15 Indeed, our Supreme Court has required
a petitioner to establish prejudice in resolving a claim that trial counsel was
ineffective for failing to object to an erroneous instruction on reasonable
doubt. See Commonwealth v. Cox, 863 A.2d 536, 549 (Pa. 2004) (holding
the petitioner “has failed to demonstrate that he was prejudiced by the failure
of trial counsel to object to the jury instruction regarding reasonable doubt.
[The defendant] has not shown that there is a reasonable probability that, but
for counsel’s alleged error, his verdict would have been different.” (citation
omitted)).
It is well established that in order to obtain PCRA relief, the petitioner
must establish that trial counsel’s ineffectiveness “so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
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have been different absent counsel’s alleged ineffectiveness.” (citation
omitted)).
15See generally Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005)
(holding that ineffective assistance of counsel claims raise “a distinct legal
ground for purposes of state PCRA review” and the claim should be reviewed
“under the three-prong ineffectiveness standard”); Commonwealth v.
Howard, 645 A.2d 1300, 1307-08 (Pa. 1994) (differentiating the harmless
error standard from prejudice in collateral review and explaining that “it is not
axiomatic that what can never be harmless error by the trial court equates to
ineffective assistance of counsel”).
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have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). The law, however, presumes
that counsel was effective, which requires the petitioner to carry the burden
of proving that counsel was ineffective. Commonwealth v. Simpson, 66
A.3d 253, 260 (Pa. 2013).
Recently, in Diaz, our Supreme Court provided useful guidance in
reviewing claims of ineffective assistance of counsel claims:
To overcome this presumption [of effective assistance], the vast
majority of cases, decided under Strickland, require the
defendant to plead and prove that (1) the claim has arguable
merit; (2) counsel lacked any reasonable basis for the action or
inaction; and (3) the petitioner suffered prejudice as a result.
Prejudice, in this context, has been repeatedly stated as requiring
proof that but for counsel’s action or inaction, there was a
reasonable probability that the proceeding would have had a
different outcome. . . .
On the same day that the Court issued its opinion in Strickland,
the high Court also decided [United States v. Cronic, 466 U.S.
648 (1984)], which recognized an exception to Strickland’s
general rule requiring proof of prejudice to prevail on a claim of
ineffective assistance of counsel. . . .
The [Cronic] Court observed, however, that there were certain,
limited circumstances where prejudice is so likely that the cost of
litigating the question of prejudice is unnecessary. Without
providing an exhaustive list of scenarios, the Cronic Court gave
examples of when the presumption of prejudice applies. They
included: (1) the actual or constructive denial of counsel at a
critical stage of trial; (2) when counsel fails entirely to provide
“meaningful adversarial testing” of the prosecution’s case; and (3)
circumstances wherein no lawyer, regardless of general
competency, could have provided effective assistance of counsel.
Id. at 1007-08 (citations omitted); see Commonwealth v. Bond, 819 A.2d
33, 42 (Pa. 2002); Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa.
1999); Commonwealth v. Lauro, 819 A.2d 100, 105-06 (Pa. Super. 2003).
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“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit. Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Smith, 167 A.3d 782, 788 (Pa. Super. 2017). If it is
clear that a claim of ineffective assistance of counsel is baseless or meritless,
then an evidentiary hearing is unnecessary, and the unfounded allegation
should be rejected and dismissed. Commonwealth v. Clemmons, 479 A.2d
955, 957 (Pa. 1984); Commonwealth v. Stanley, 830 A.2d 1021, 1022 (Pa.
Super. 2003). Counsel is only considered ineffective when the alternative not
selected “offered a potential for success substantially greater than the tactics
used.” Clemmons, 479 A.2d at 957.
Even assuming the claim has arguable merit, generally, the petitioner
must plead and prove the remaining two prongs to establish counsel’s
ineffectiveness. Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.
Super. 2009). A petitioner’s failure to satisfy any prong of the test for
ineffectiveness mandates rejection of the claim without further analysis.
Commonwealth v. Busanet, 817 A.2d 1060, 1066 (Pa. 2002).
Instantly, Appellant’s sole claim is that he is entitled to a presumption
of prejudice due to Sullivan, which held that on direct appeal, an
unconstitutional reasonable doubt instruction is a structural error that is not
subject to a harmless error analysis. Sullivan, 508 U.S. at 281-82.
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Assuming, without holding, that Appellant has established that the challenge
to the instruction at issue has arguable merit, Appellant must still establish
actual prejudice. See Cox, 863 A.2d at 549; Diaz, 226 A.3d at 1007-08.
Appellant, however, failed to recognize his burden of proof under Cox, and he
simply failed to argue any reasonable probability of a different outcome but
for counsel’s error. See Cox, 863 A.2d at 549. For example, as discussed
above, the Cox Court affirmed the dismissal of a PCRA petition because the
petitioner did not demonstrate that he was prejudiced by trial counsel’s failure
to object to a reasonable doubt instruction. Id. Cf. also Fisher, 813 A.2d at
774-75. Just as in Cox, we are bound to conclude that Appellant, because he
failed to argue any Strickland/Pierce prejudice or presumption of prejudice
whatsoever, is not entitled to relief. See Cox, 863 A.2d at 549; Busanet,
817 A.2d at 1066; Diaz, 226 A.3d at 1007-08. Because Appellant has failed
to demonstrate prejudice sufficient to entitle him to relief, and for the
foregoing reasons, we affirm.16 See Hudson, 820 A.2d at 726.
Order affirmed.
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16We note that the trial court denied Appellant’s petition on the grounds that
there was no arguable merit to his challenge to the analogy used by the trial
court to define reasonable doubt. PCRA Ct. Op. at 11. However, “[t]o the
extent our legal reasoning differs from the trial court’s we note that as an
appellate court, we may affirm on any legal basis supported by the certified
record.” Commonwealth v. Williams, 125 A.3d 425, 433 n.8 (Pa. Super.
2015).
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President Judge Panella joins the memorandum.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/20
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