Com. v. Powell, G. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY POWELL :
:
Appellant : No. 2143 EDA 2021
Appeal from the PCRA Order Entered September 20, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0100741-1998
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 8, 2023
Appellant, Gregory Powell, appeals from the September 20, 2021 order
entered in the Court of Common Pleas of Philadelphia County that dismissed
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
Our Supreme Court previously summarized the factual history as
follows:
[The victim] was born [in] November [] 1991, the son of [Mother],
with whom [Appellant] had an ongoing relationship for a number
of years that included periods of cohabitation. Whether or not
[the victim] was [Appellant's] biological child was disputed at trial;
however, it was undisputed that [Appellant's] name appears on
[the victim’s] birth certificate as his father, that [the victim] knew
[Appellant] as his father, and that [Appellant] held out [the victim]
as his biological son. [The victim] lived with [Mother] or his
maternal grandmother for the majority of his life, but [Appellant]
obtained custody of [the victim] in 1997, while [Mother] was in a
residential treatment program for addictions to cocaine and
alcohol. After [Appellant] obtained custody, [the victim] was
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exclusively under his care and control, seeing [Mother] on only a
few occasions before his death.
Appellant and [the victim] resided [in a first-floor apartment
located] in Philadelphia, [Pennsylvania.] A neighbor[], who lived
in the second floor rear apartment of the building, often saw [the
victim] and [Appellant], and had regular access to their apartment
to spray insecticides. According to [the neighbor], the apartment
was always neat and clean, but he often noticed that [the victim]
had dark circles around his eyes and that he “appeared frail.” At
least twice a week during the nine to twelve months leading up to
the murder, [the neighbor] heard [Appellant] cursing and yelling
at [the victim] that he [] told him time and time again not to do
things and to “shut the fuck up.” [The neighbor] heard furniture
being knocked over or pushed about, the sound of blows, and [the
victim] crying and pleading with [Appellant] to stop. While [the
neighbor] never spoke with [Appellant] about what he heard, he
did call the police and the Department of Human Services to report
the abuse. The police came to investigate, but at the time, they
found nothing amiss and they left.
Because [Appellant] worked evenings, [the victim] was cared for
in his paternal grandmother's home by his grandmother and uncle
from after school until approximately 11:00 p.m. on school days,
after which [Appellant] would pick [the victim] up and take him
home. Appellant's brother[] lived four blocks from [the paternal
grandmother’s house] and saw [the victim] frequently. [The
brother] noticed that [the victim] was frequently bruised or
injured, and later said that both he and his mother were
“suspicious” of [the victim’s] myriad [of] wounds. Less than a
month before [the victim] was murdered, [the brother] noticed
that [the victim] had a large knot on his forehead that lasted two
to three weeks, as well as a black eye. A week before the murder,
[the brother] touched [the victim] on [the] sides [of his body,]
and [the victim] moaned and said that his sides were sore. [The
brother] later stated that the shape of [the victim’s] face []
actually begun to change from the frequent injuries, and [] started
to look “like a prizefighter's face that had been in a lot of fights,
like someone had been beating on it a lot.”
Other than [Appellant's] mother and brother, few people ever saw
or spoke with [the victim] outside of [Appellant's] presence. [The
victim] saw [Mother] only three times between March and
November 1997. While [Mother] asked [Appellant] to allow her
to see [the victim] on other occasions, [Appellant] claimed that
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[the victim] was sick or that he did not have time to bring him for
a visit. Appellant walked [the victim] to school every morning and
[the victim’s] teacher remembers a polite and friendly child with
a nice smile; however, for several weeks before [the victim’s]
death, he did not attend school. [An] acquaintance of [Appellant],
saw [the victim] several times during the month-long period
leading to his death, but [Appellant] would not allow her to see
[the victim] outside of his presence and would not allow [the
victim] to play with [the acquaintance’s] children. [The
acquaintance] testified that at one time, she went to [the victim’s
bed]room to talk with him and [Appellant] followed her and did
not allow [the victim] to speak for himself. Appellant told [the
acquaintance] that [the victim] did not appreciate what
[Appellant] was doing for him, that he “always wanted his way,”
and that once, when [the victim] asked for a glass of water but
then drank very little of it, [Appellant] threw the rest of the water
into the six-year-old [victim’s] face. When [the acquaintance]
asked why, [Appellant] explained that after that incident, [the
victim] “never did it again.” [The acquaintance] also noticed that
during the month before his death[, the victim] was always sick,
and that the day before he died he had a large lump on his
forehead. Appellant told her that [the victim] was clumsy and fell
a lot.
Events the night of [the victim’s] murder unfolded as follows. At
some point in the evening of November 20, 1997, [Appellant]
called his mother's house, spoke with his brother, [] and told him
that [the victim] hit his head on the wall and would not wake up.
Leaving [the victim] at his apartment, [Appellant] then went to
his mother's house and told his mother and brother that he could
not wake [the victim], and that [the victim] had been playing
when he ran into the wall. Appellant called 911 [emergency
services] from his mother's house.
At approximately 11:00 p.m., Philadelphia firefighters[,] serving
on collateral duty as [emergency medical services (“EMS”)]
personnel, were summoned to [Appellant's] apartment. They
arrived to find the building dark and vacant. They were unable to
gain entry, but [Appellant] then appeared and approached them.
When [Appellant] informed [the firefighters] that he summoned
them to the house because something was wrong with his son,
the [firefighters] detected the odor of alcohol on his breath.
Appellant let the firefighters into his apartment, where [the victim]
was lying on the sofa covered with a blanket. From the color of
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[the victim’s] skin, [the firefighters] could immediately tell that
[the victim] was dead. When asked what [] happened, [Appellant]
said that [the victim fell] in the bathtub and hit his head at
approximately 9:00 p.m. that night. [One of the firefighters] saw
no head wounds on [the victim] but did observe bruising on his
chest and abdomen. When [the firefighter] asked [Appellant] why
he waited so long to call 911 [emergency services, Appellant] did
not respond. [The victim] was then transported to the [hospital],
where he was pronounced dead upon arrival.
The doctor who examined [the victim’s] body reported that the
bruises observed by [the firefighter] were “suspicious,” and [a
police officer] was summoned to the hospital. [The police officer]
spoke with [Appellant] in the waiting room of the hospital, and
[Appellant] told him that [the victim] had been running in the
house, fell, and hit his head. Appellant said that [the victim] was
in and out of consciousness after the head injury, and that he tried
to perform [cardiopulmonary resuscitation (“CPR”) on the victim].
Appellant stated that [the victim] was still breathing when he put
him down to sleep on the couch, and that after putting [the victim]
down, [Appellant] went to sleep himself. When he woke,
[Appellant] claimed that [the victim] stopped breathing, so he
called 911 [emergency services]. According to [the police officer,
Appellant's] manner was nervous and distracted.
Appellant spoke with several other people while at the hospital or
shortly afterwards. Appellant called [the acquaintance] and told
her that he [] called [the victim] into the kitchen for dinner, and
that when [the victim] came in, he hit his head on the wall and
fell. Appellant said that [the victim] would not wake up, so he put
cold water in the bathtub and put the [victim] in the tub. When
he still did not regain consciousness, [Appellant] gave [the victim]
mouth-to-mouth resuscitation and then brought him in the living
room and placed him on the [couch]. When [the acquaintance]
asked why [Appellant] did not contact someone or take him to the
hospital, [Appellant] stated that “it had happened before” and he
had “brought him back.” Appellant also told [the acquaintance]
that he had gotten high that day, and that if he had not been high,
perhaps he could have reacted better.
Appellant also discussed [the victim’s] death with [a second
neighbor] the day after [the victim’s] death. Appellant brought
two beers over to [the second neighbor’s] house, gave [the
second neighbor] one, and said that he thought he [] killed his
son. Appellant told [the second neighbor] that [the victim]
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“wouldn't shut up,” and that he hit [the victim] “all night” to get
him to stop crying. Appellant told [the second neighbor] that
“every time [the victim] would cry, he would beat him. Then he
would shut up and he would cry again, then [Appellant] would
beat him some more. Then he would cry again, then he stomped
him.” Shortly before leaving, [Appellant] told [the second
neighbor], “what's done is done, fuck it.” [The second neighbor]
called the police.
The same day, police crime[-]scene[-]unit personnel went to
[Appellant’s] apartment to photograph the scene. Two sections
of drywall in the kitchen were caved in. The [police] officers could
not determine when the damage [] occurred, but there was no
plaster dust, which indicated that the damage was not recent.
Appellant was charged with endangering the welfare of a child and
first-degree murder. A jury trial commenced on October 31, 2000.
At trial, the Commonwealth presented the testimony of [Mother,
the acquaintance, the brother, and the second neighbor], as well
as significant medical testimony. The medical examiner, Dr. Erwin
Lieberman [(“Dr. Lieberman”)], testified that [the victim] had
“more than ten” fresh injuries, as well as numerous healing
injuries and old scars. The new injuries were on the [victim’s]
head, chest, collarbone, upper back, lower back, elbows, and
mouth, including a recently broken tooth. According to [Dr.
Lieberman], the head and mouth injuries were caused by blunt
force trauma with a relatively padded instrument, such as a hand.
Additionally, there was extensive hemorrhaging in [the victim’s]
thymus gland, which is located high up on the chest, fluid in [the
victim’s] lungs[,] and traumatic brain injury. [Dr. Lieberman]
explained that the fluid in [the victim’s] lungs was caused by a
seizure, which was brought on by blows to the head. Dr.
Lieberman testified that, during the seizure, [the victim] would
have exhibited involuntary jerking movements, his eyes would
have rolled back in his head, and foam would have come from his
nose and mouth due to the water building up in his lungs. Dr.
Lieberman testified that the manner of death was multiple blunt
force injuries and that the cause of death was homicide. Dr.
Lieberman also stated that the injuries [the victim] sustained
would have killed not just a small child, but also “an 18-year-old
or a 40-year-old.”
A neuropathologist, Dr. Lucy B. Rorke [(“Dr. Rorke”)], examined
[the victim’s] brain, spine, and eyes, and found both acute injuries
(inflicted within twelve to twenty-four hours of death) and older
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injuries. The oldest brain injuries were “several months old.” Dr.
Rorke testified that there were hemorrhages in [the victim’s] eyes,
as well as under and along the membranes that cover the brain.
Some of the hemorrhages had been present for some time, while
there was also acute bleeding in the brain, blood clots, and
evidence of oxygen deprivation. Dr. Rorke also testified that fluid
in [the victim’s] brain was stained with blood, and that there was
bleeding in his spinal cord that was several weeks old. She noted
that [the victim’s] brain displayed evidence of acute oxygen
deprivation. Dr. Rorke testified that [] the injuries she described
were typically secondary to trauma, of a type commonly found in
battered and traumatized infants. Although the injuries were not
externally apparent, Dr. Rorke added that the older retinal
hemorrhaging could have been detected had a doctor looked into
[the victim’s] eyes. The recent injuries were detectable only
during autopsy.
In his defense, [Appellant] presented the testimony of his mother,
[] his landlord, [the victim’s] kindergarten teacher, a family friend,
a school crossing guard, [Appellant's] work supervisor who had
met [the victim] on a few occasions, and [the victim’s] primary
care physician, all of whom testified that they never noticed any
signs of abuse and that [the victim] appeared to be a happy and
normal child. However, [the victim’s] kindergarten teacher also
testified that [the victim] had not been in school for over a week
before his death.
Commonwealth v. Powell, 956 A.2d 406, 414 (Pa. 2008) (record citations,
extraneous capitalization, footnote, and original brackets omitted), cert.
denied, 556 U.S. 1131 (2009). A jury convicted Appellant of first-degree
murder and endangering the welfare of a child.1 Powell, 956 A.2d at 414.
The penalty phase began on November 27, 2000. The
Commonwealth incorporated the trial evidence, while [Appellant]
testified on his own behalf and presented the testimony of his
mother and his [other] brother[.] The Commonwealth submitted
three aggravating factors to the jury: (1) that the victim was
under twelve years of age; (2) that the offense was committed by
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1 18 Pa.C.S.A. §§ 2502(a) and 4304, respectively.
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means of torture; and (3) that [Appellant] had a significant history
of felony convictions involving the use or threat of violence to the
person. Three mitigating circumstances were also presented: (1)
that [Appellant] was under the influence of extreme mental or
emotional disturbance; (2) the capacity of [Appellant] to
appreciate the criminality of his conduct or to conform his conduct
to the requirements of law was substantially impaired; and (3) the
catchall mitigator. The jury found all three aggravating
circumstances, and wrote in as a mitigating circumstance,
“mercy.” The jury concluded that the aggravating circumstances
outweighed the non-statutory mitigating circumstance, and,
accordingly, returned a verdict of death for [Appellant's]
first-degree murder conviction. Appellant filed a motion in arrest
of judgment and for a new trial. At that time, [Appellant's] original
[trial] counsel was permitted to withdraw, and new counsel was
appointed. The motion in arrest of judgment and for a new trial
was denied, and [Appellant] was formally sentenced to death for
[first-degree] murder, and to three and one-half to seven years'
incarceration for endangering the welfare of a child, to be served
concurrently. A second post-sentence motion was filed on May
29, 2001, and denied.
Id. (footnotes and record citations omitted). On September 24, 2008, our
Supreme Court affirmed Appellant’s judgment of sentence,2 and the Supreme
Court of the United States denied a petition for writ of certiorari on March 23,
2009.
On July 8, 2009, Appellant filed pro se a timely PCRA petition. The next
day, counsel from the Federal Community Defender Office (“FCDO counsel”)
filed an unopposed emergency motion for stay of execution on the ground that
Appellant had not been afforded collateral review of his convictions and
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2 Pursuant to 42 Pa.C.S.A. § 9711(h)(1), our Supreme Court had automatic
appellate review of Appellant’s case because a sentence of death was imposed.
42 Pa.C.S.A. § 9711(h)(1).
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sentence.3 Unopposed Emergency Motion for Stay of Execution, 7/9/09.
Although an order granting Appellant’s request for a stay of execution does
not appear as part of the PCRA court docket, based upon the filing of
Appellant’s pro se PCRA petition and the PCRA court’s subsequent grant of a
continuance on November 17, 2009, to afford FCDO counsel an opportunity to
review the record, it is apparent that a stay of execution was, in fact, granted.
On April 22, 2010, Appellant filed pro se a motion to dispense with
court-appointed counsel and proceed pro se in his PCRA petition. On
September 2, 2010, Appellant filed pro se a motion requesting a Grazier
hearing to address his request for self-representation.4 On October 29, 2010,
FCDO counsel filed a motion for ex parte and under seal proceedings,
regarding objections to Appellant’s request for self-representation and an
evidentiary proffer that Appellant suffered from significant mental
impairments which prevented him from adequately representing himself.
Motion for Ex Parte and Under Seal Proceedings, 10/29/10. In the motion,
FCDO counsel asserted, “the Commonwealth lacks standing to participate in
the resolution of [counsel’s objections.]” Id. at ¶2.
On September 8, 2011, the PCRA court denied Appellant’s pro se motion
requesting self-representation, and granted FCDO counsel’s request for a
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3Appellant’s execution was scheduled for August 18, 2009. FCDO counsel
entered his appearance on behalf of Appellant on October 13, 2009.
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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psychiatric examination of Appellant. On October 11, 2011, the
Commonwealth appealed the September 8, 2011 PCRA court order denying
Appellant’s pro se motion requesting self-representation on the ground that
FCDO counsel does “not properly represent [Appellant] and [FCDO counsel’s]
appearance in state court is unlawful.” Commonwealth’s Statement of Errors
Complained of on Appeal, 10/11/11. In a May 10, 2012 per curiam order, our
Supreme Court remanded the case to the PCRA court with the directive that
the PCRA court “determine whether to formally appoint appropriate
post-conviction counsel and to consider whether [FCDO counsel] may or
should lawfully represent [Appellant] in this state capital PCRA proceeding.”
Per Curiam Order, 5/10/12 (641 CAP 2012). Upon remand, the PCRA court
removed FCDO counsel from Appellant’s case and scheduled a Grazier
hearing to determine whether Appellant wished to proceed pro se. PCRA Court
Order, 6/14/12; see also N.T., 6/14/12.
On August 22, 2014, the PCRA court appointed Samuel Stretton, Esquire
(“Attorney Stretton”) to represent Appellant. On November 7, 2014, Appellant
filed pro se a motion to remove Attorney Stretton and to proceed pro se. On
August 26, 2015, the PCRA court, without first conducting a Grazier hearing,
denied Appellant’s motion to proceed pro se and confirmed Attorney Stretton
as counsel of record for Appellant. PCRA Court Order, 8/26/15; see also N.T.,
8/26/15.
On October 3, 2016, Appellant filed pro se a motion for the removal of
Attorney Stretton as counsel of record “because of [a] serious conflict of
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interest.” Pro Se Motion Regarding Conflict of Interest, 10/3/16, at 4
(unpaginated). On October 19, 2016, the PCRA court granted Appellant’s pro
se motion and appointed Teri Himebaugh, Esquire (“Attorney Himebaugh”) to
represent Appellant. PCRA Court Order, 10/19/16; see also N.T., 10/19/16.
On December 15, 2016, the PCRA court sua sponte vacated its October
19, 2016 order and reinstated Attorney Stretton as counsel for Appellant on
the ground that the October 19, 2016 order was erroneously entered. PCRA
Court Order, 12/15/16; see also N.T., 12/15/16. The PCRA Court also
ordered that Appellant’s pro se motion regarding a conflict of interest be held
under advisement. On January 18, 2017, Appellant filed pro se a notice of
appeal challenging the December 15, 2016 order that reinstated Attorney
Stretton’s representation of Appellant.5
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5 Although Appellant, in his pro se notice of appeal, stated he was appealing
from a December 8, 2016 order reinstating Attorney Stretton as Appellant’s
counsel, a review of Appellant’s accompanying statement and the PCRA court
docket demonstrates that Appellant was appealing the December 15, 2016
order reinstating Attorney Stretton as counsel of record.
Although we can find no indication that the PCRA court forwarded a copy of
Appellant’s notice of appeal to our Supreme Court, we discern no error (and
thus, maintain jurisdiction in the instant appeal) because an order reinstating
Attorney Stretton as counsel of record was not a final, and immediately
appealable, order. See Commonwealth v. Wells, 719 A.2d 729, 730 (Pa.
1998) (finding that, an order denying a petition to withdraw as counsel does
not qualify as a collateral order, and therefore immediately appealable,
because such an order does not pertain to a matter unreviewable on appeal
from final judgment); see also Pa.R.A.P. 313(b) (defining a collateral order,
which is immediately appealable, as “an order separable from and collateral
to the main cause of action where the right involved is too important to be
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On December 31, 2018, Attorney Stretton filed an amended PCRA
petition, asserting several claims of ineffective assistance of trial counsel and
requesting a new trial, or in the alternative, that the PCRA court vacate the
death penalty sentence. Amended PCRA Petition, 12/31/18. On May 17,
2019, in a pro se letter directed to the PCRA court, Appellant reiterated his
“conflict of interest” claim against Attorney Stretton and renewed his request
to have Attorney Stretton removed as counsel. Pro Se Letter, 5/17/19. On
May 20, 2019, Appellant filed pro se a motion for the appointment of new
counsel due to an irreconcilable conflict of interest with Attorney Stretton.
On June 17, 2019, the Commonwealth filed a response to Appellant’s
amended PCRA petition. In its response, the Commonwealth, inter alia,
agreed that Appellant “received ineffective assistance of counsel” during the
penalty phase hearing, and requested that the PCRA court grant a new penalty
phase hearing. Commonwealth Response, 6/17/19, at 2. The Commonwealth
further stated that if a new penalty phase hearing were granted, the
Commonwealth remained “committed to maintaining a life sentence without
the possibility of parole[.]” Id. at 3. That same day, the PCRA court vacated
Appellant’s death sentence upon agreement of both the Commonwealth and
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denied review and the question presented is such that if review is postponed
until final judgment in the case, the claim will be irreparably lost”).
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Appellant’s counsel.6 PCRA Court Order to Vacate Death Penalty by
Agreement, 6/17/19; see also N.T., 6/17/19.
On June 17, 2019, the PCRA court also granted Appellant’s pro se motion
for new counsel thereby removing Attorney Stretton as Appellant’s counsel.
PCRA Court Docket Entry, 6/17/19; see also N.T., 6/17/19, at 8-9. On
September 17, 2019, the PCRA court appointed George Yacoubian, Esquire
(“Attorney Yacoubian”) to represent Appellant in his PCRA proceedings. On
October 23, 2019, Attorney Yacoubian filed a motion to withdraw as counsel.7
On November 6, 2019, Appellant filed pro se a motion requesting
self-representation in his PCRA proceeding. On December 17, 2019, the PCRA
court granted Attorney Yacoubian’s motion to withdraw as counsel for
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6 In its order, the PCRA stated, “after consideration of the motion to vacate
death penalty by the attorney for [Appellant,] it is ordered that the motion to
vacate death penalty is granted. Death penalty vacated by agreement of [the]
Commonwealth and [Appellant].” PCRA Court Order to Vacate Death Penalty
by Agreement, 6/17/19 (extraneous capitalization omitted).
7 In his motion to withdraw as Appellant’s counsel, Attorney Yacoubian
explained,
On [October 22, 2019], the undersigned [(Attorney Yacoubian)]
went to [the state correctional institution] to visit [Appellant] for
a second time since appointment. Within no more than 10
minutes, and only after being asked several questions about his
trial transcripts, [Appellant] was screaming at the undersigned.
When the undersigned asked [Appellant] to calm down, he
continued his verbal abuse, at which point the undersigned left,
and [Appellant] indicated he wanted to “go pro se.”
Motion to Withdraw as Counsel, 10/23/21.
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Appellant and scheduled a Grazier hearing on Appellant’s request for
self-representation. PCRA Court Order, 12/17/19; see also N.T., 12/17/19.
On February 10, 2020, the PCRA court, after conducting a Grazier
hearing, denied Appellant’s pro se motion for self-representation and
appointed James Lloyd, Esquire (“Attorney Lloyd”) to represent Appellant in
the PCRA proceedings. PCRA Court Order, 2/10/20; see also N.T., 2/10/20.
On March 16, 2020, the PCRA court sua sponte appointed Earl Kauffman,
Esquire (“Attorney Kauffman”) to represent Appellant. On October 26, 2020,
the PCRA court, at the conclusion of a status conference hearing, granted
Attorney Kauffman’s unopposed request for additional time in which to file a
second amended PCRA petition. N.T., 10/26/20. On December 23, 2020,
Appellant filed pro se a motion for the appointment of new counsel due to
irreconcilable differences with Attorney Kauffman.
On January 31, 2021, Attorney Kauffman filed a second amended PCRA
petition. The Commonwealth filed a motion to dismiss Appellant’s PCRA
petition on March 14, 2021. On July 14, 2021, the PCRA court notified
Appellant, pursuant to Pennsylvania Rule of Criminal Procedure 907, of its
intent to dismiss his petition without a hearing and advised Appellant he had
20 days to file a response. Rule 907 Notice, 7/14/21. On August 9, 2021,
Appellant filed pro se a response to the Rule 907 notice to dismiss. On
September 20, 2021, the PCRA court dismissed Appellant’s petition. In that
same order, the PCRA court granted Attorney Kauffmann’s motion to withdraw
as counsel and advised Appellant that he “may hire new counsel for appeal
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purposes.” PCRA Court Order, 9/20/21 (extraneous capitalization omitted).
On October 12, 2021, Appellant filed pro se a notice of appeal.
In a December 6, 2021 per curiam order, this Court directed the PCRA
court to determine Appellant’s eligibility for court-appointed appellate counsel
within 60 days and, if Appellant were eligible, to appoint counsel. In a March
24, 2022 per curiam order, this Court, having received no notice of the PCRA
court’s assessment and whether appellate counsel had been appointed,
directed the PCRA court again to make an assessment of Appellant’s in
pauperis status, and appoint counsel, if eligible, within 30 days. On April 26,
2022, the PCRA court re-appointed Attorney Lloyd.
On June 1, 2022, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). On June 21, 2022, Appellant filed his Rule
1925(b) statement. The PCRA court filed its Rule 1925(a) opinion on June 30,
2022.
Appellant raises the following issues for our review:
[1.] Did the PCRA court err []or abuse its discretion when it
denied [Appellant’s] petition under the PCRA without an
evidentiary hearing where trial counsel was ineffective for
failing to:
a. object to evidence regarding nine instances of prior
bad acts by [Appellant] which were inadmissible and
unduly prejudicial;
b. object to the prosecutor's improper closing argument;
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c. object to the [trial] court's answer to a jury question
which provided an inaccurate, incomplete[,] and
misleading statement of controlling law;
d. have the [trial] court give a timely and non-prejudicial
curative jury instruction regarding improper
testimony that [Appellant] "calmed down after he
went to prison" []or not objecting to a prejudicial
curative instruction; and,
e. challenge the cause of death[?]
[2.] Did the PCRA court err []or abuse its discretion when it
denied [Appellant's] petition under the PCRA without an
evidentiary hearing where PCRA counsel was ineffective for
failing to raise claims that trial counsel was ineffective for
failing to properly investigate and prepare for trial by not
presenting medical evidence that conflicted with the
Commonwealth's evidence and theory of guilt?
Appellant’s Brief at 4-5.
In addressing Appellant’s issues, we are mindful of our well-settled
standard and scope of review of an order denying a PCRA petition. Proper
appellate review of a PCRA court’s dismissal of a petition is limited to an
examination of “whether the PCRA court’s determination is supported by the
record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted). “This Court grants great deference to the findings of the PCRA court,
and we will not disturb those findings merely because the record could support
a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140
(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s
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legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).
Appellant’s first issue, in toto, raises a claim alleging that trial counsel
provided ineffective assistance. Appellant’s Brief at 22-53. Specifically,
Appellant alleges that trial counsel was ineffective for failing to (1) object to
prior bad acts evidence, which Appellant asserts was inadmissible and unduly
prejudicial; (2) object to statements made by the Commonwealth in its closing
argument; (3) object to the trial court’s answer provided in response to a
question raised by the jury during its deliberation; (4) object when the trial
court failed to provide a curative jury instruction during its charge that the
trial court previously ruled it would provide; and (5) challenge the victim’s
cause of death. Id.“It is well-established that counsel is presumed effective[.]”
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland
v. Washington, 466 U.S. 668, 687-691 (1984). To plead and prove a claim
of ineffective assistance of counsel, “a petitioner must establish: (1) that the
underlying issue has arguable merit; (2) counsel's actions lacked an
objective[ly] reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701,
706 (Pa. Super. 2013) (en banc), appeal denied, 93 A.3d 463 (Pa. 2014). “A
claim of ineffectiveness will be denied if the petitioner's evidence fails to meet
any of these prongs.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.
2010). “In determining whether counsel's action was reasonable, we do not
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question whether there were other more logical courses of action which
counsel could have pursued[. R]ather, we must examine whether counsel's
decision[] had any reasonable basis.” Commonwealth v. Washington, 927
A.2d 586, 594 (Pa. 2007). A petitioner establishes prejudice when he or she
demonstrates “that there is a reasonable probability that, but for counsel's
[acts or omissions], the result of the proceeding would have been different.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009).
Here, Appellant asserts that trial counsel was ineffective for failing “to
object to evidence regarding nine instances of prior bad acts by [Appellant]
which were inadmissible and unduly prejudicial.” Appellant’s Brief at 25.
Specifically, Appellant argues that trial counsel failed to object to (1) Mother’s
“testimony that [Appellant] cursed at her, followed her around, and was
abusive[;]” (2) Mother’s “testimony that [Appellant] tried to steal her money
and burned her with an iron[;]” (3) Mother’s “testimony that [Appellant]
knocked her into a closet door[;]” (4) the neighbor’s “testimony that
[Appellant] was a loud and abusive person[;8]” (5) the acquaintance’s
“statement that [Appellant] never hugged or talked to the [victim;]” (6)
statements made by [Appellant’s] brother[] that [Appellant] threw a sandwich
____________________________________________
8 In response to the Commonwealth’s question whether the neighbor heard
“anything unusual coming from [Appellant’s] apartment at any time during
the month of November [1997,]” the neighbor stated, “It wasn’t quite unusual
at all to hear [Appellant]. He was a loud and abusive person. He cursed a
lot[,] and I could hear him hollering at the [victim] a lot.” N.T., 11/13/00, at
107.
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at [the brother] when they were younger[;]” (7) the brother’s “testimony that
[Appellant] had gotten so mad he could kill someone[;]” (8) “the
Commonwealth’s question regarding [Appellant’s] reaction to his name not
being in [the victim’s] obituary[;]” and (9) the second neighbor’s “statement
that [Appellant] hollered at his girlfriend.” Id. at 25-26. Appellant contends
that the nine instances of prior bad acts evidence demonstrating that he was
loud, angry, and abusive toward people other than the victim were used to
“smear [his] character and impermissibly tilt the scale[s] of justice toward a
finding of guilty,” and trial counsel was ineffective in failing to
contemporaneously object to each of the nine statements. Id. at 27, 29.
Pennsylvania Rule of Evidence 404 provides, in pertinent part, as
follows:
Rule 404. Character Evidence; Other Crimes, Wrongs, or
Acts
...
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or act
is not admissible to prove a person's character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1) and (2). Thus, as our Supreme Court in Powell, supra,
noted, “[w]hile it is true that evidence of prior crimes and bad acts is generally
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inadmissible if offered for the sole purpose of demonstrating the defendant’s
bad character or criminal propensity, the same evidence may be admissible
where relevant for another purpose.” Powell, 956 A.2d at 419; see also
Commonwealth v. Busanet, 54 A.3d 35, 60 (Pa. 2012). In addition to the
“other purposes” enumerated in Rule 404(b)(2) that allow for the possible
admission of prior bad acts evidence, our Supreme Court carved out another
special circumstance, known as the res gestae exception, where prior bad acts
evidence is admissible if the evidence is “part of the history of [the] case and
formed part of [the] natural development of facts[.]” Commonwealth v.
Solano, 129 A.3d 1156, 1178 (Pa. 2015); see also Commonwealth v.
Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (en banc); Powell, 956 A.2d at
419. Additionally, the prior bad acts evidence must be relevant, and its
probative value must be outweighed by the potential for “unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Pa.R.E. 403. Finally, “the admissibility of
evidence is within the discretion of the trial court, and such rulings will not
form the basis for appellate relief absent an abuse of discretion.”
Commonwealth v. Saez, 225 A.3d 169, 177 (Pa. Super. 2019) (citation and
original quotation marks omitted), appeal denied, 234 A.3d 407 (Pa. 2020).
In the case sub judice, our review of the PCRA court’s denial of
Appellant’s ineffectiveness claim on this ground turns on the merits of the
underlying claim that the trial court erred or abused its discretion in admitting
the nine statements, as set forth supra. Stated another way, absent an abuse
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of discretion or error of law by the trial court in admitting these nine
statements at trial, trial counsel cannot be ineffective for failing to object to
the statements.
We begin by examining our Supreme Court’s disposition of a related
claim on direct appeal. There, in addition to the nine statements set forth
supra, Appellant claimed that he was prejudiced at trial by the admission of
three additional statements. Those three statements were (1) Mother’s
“testimony that [Appellant] put his hands on her[;]” (2) the acquaintance’s
“statements that [Appellant] had a cold personality[;]” and (3) the
acquaintance’s statement that Appellant “once threw water in [the victim’s
face].” Powell, 956 A.2d at 418. Our Supreme Court, in Powell, supra,
noted that these three statements, to which trial counsel lodged a
contemporaneous objection, were properly admitted because the statements
helped establish the family environment and the relationships Appellant had
with others, helped “establish the chain of events and pattern of abuse that
eventually caused” the victim’s death, and showed “both [Appellant’s] intent
and malice and the nature of the relationship with [the victim].” Id. at
419-420. The Powell Court found that trial counsel did not object to the
remaining nine statements, which are the subject of the instant appeal, and,
therefore, any direct appeal claim regarding the admissibility of these nine
statements was waived. Id. at 419.
In the case sub judice, we concur with the PCRA court that the nine
statements, which were not addressed on the merits by our Supreme Court in
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Powell, supra, were properly admitted because they were “part of a chain or
sequence of events that were part of the natural development of the case”
and “illustrate[d] the pattern of abuse that eventually caused the child victim’s
[death].” PCRA Court Opinion, 6/30/22, at 9-10 (quotation marks and
citations omitted). Similar to Mother’s statement that Appellant “put his hands
on her,” which our Supreme Court found was properly admitted, the first three
statements involved in this collateral appeal, namely Mother’s testimony that
Appellant cursed at her, tried to steal from her and burned her with an iron,
and that he knocked her into a closet door, were not offered “to show
[Appellant’s] propensity to crime, but in the context of establishing the family
environment and relationships among [Appellant]” (see Powell, 956 A.2d at
419) and were provided in response to trial counsel’s questions surrounding
the protection from abuse petitions that Mother and Appellant filed against
each other. In finding that the trial court did not err in admitting Mother’s
statement that Appellant “put his hands on her,” our Supreme Court
explained,
Considering the isolation in which [Appellant] kept [the victim],
this testimony was useful for the jury in understanding how
[Appellant] kept away [Mother], the other adult most likely to
have noticed the abuse and protected [the victim]. Appellant's
prior abuse of [Mother] (in addition to her testimony regarding
her drug abuse and time in [rehabilitation]) provides context for
her later testimony that she took little action when [Appellant]
refused to allow her access to her son, or, on those rare occasions
when she did see [the victim], to speak with him alone.
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Powell, 956 A.2d at 420. For the same reasons expressed by our Supreme
Court in Powell, supra, we find the three additional statements by Mother
were admitted without error.
Similarly, the neighbor’s statement that Appellant was “a loud and
abusive person” was made in response to a question by the Commonwealth
soliciting whether the neighbor heard “anything unusual” coming from
Appellant’s apartment prior to November 1997. N.T., 11/13/00, at 107. This
response provides context for the neighbor’s later statements that he was able
to hear Appellant’s abusive behavior towards the victim through the walls of
the apartments, including, inter alia, telling the victim to “shut the fuck up,”
smacking the victim, and knocking furniture over. Id. The neighbor’s
statement was part of the immediate story or natural progression of events
leading to the victim’s death and, therefore, was not admitted in error.
With regard to the acquaintance’s statement that she never saw
Appellant touch the victim or hug him, this statement arose in the context of
a discussion surrounding the acquaintance’s statements to police regarding
the incident. N.T., 11/13/00, at 164-167. On cross-examination, the
acquaintance was asked about a statement she made to the police that she
“thought [Appellant and the victim] had a good relationship.” Id. at 164-165.
On re-direct, the acquaintance was asked if she still thought Appellant and the
victim had a good relationship, to which the acquaintance responded
negatively. Id. at 167. When asked to explain why her opinion of the
relationship changed, the acquaintance responded, “I’ve never seen
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[Appellant] touch [the victim]; I’ve never seen him hug him or just talk to
him, you know, like you would your child. I’ve never seen that. I thought
that was odd.” Id. at 167. When examined within the context of the
acquaintance’s overall testimony, her statement completes the story of the
relationship Appellant had with the victim. Moreover, the testimony was
offered to clarify a statement the acquaintance previously made to police
regarding Appellant’s relationship with the victim – Appellant and the victim
had a good relationship - that was first raised by trial counsel. As such, the
challenged statement was not admitted in error.
Regarding Appellant’s brother’s statements that he witnessed Appellant
throw a sandwich and that Appellant got so mad that he could kill, we do not
find that these statements were admitted in error. First, Appellant
mischaracterizes the brother’s statement that he witnessed Appellant throw a
sandwich as occurring when they were younger. Appellant’s Brief at 25
(stating, “statements made by [the brother] that [Appellant] threw a sandwich
at [the brother] when they were younger” (emphasis added)). The
testimony concerning the sandwich episode was as follows:
[Commonwealth:] Do you recall the question on page two at
the bottom [(referring to a statement the
brother gave to police)] . . . Does
[Appellant] have a temper? And giving
the answer: Yes, a real bad temper. He’s
had it since he was born.
[Brother:] Yes.
[Commonwealth:] Was that true?
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[Brother:] Well, it is the same as I say he had it as
we was young, coming up.
[Commonwealth:] In fact, didn’t [Appellant] even
demonstrate it [(that he had a temper)]
the day that you gave this statement [to
police] in the car on your way to
homicide?
[Brother:] Yeah, he got mad at my oldest brother.
[He] and my oldest brother had a little
argument and he jumped out of the car.
[Commonwealth:] And threw a sandwich?
[Brother:] Yes.
[Commonwealth:] So he hadn’t lost his temper. Is that
correct?
...
[Brother:] He didn’t lose it but it calmed down a lot
from when we was young, coming up.
N.T., 11/14/00, at 90-91. The brother’s statement regarding the sandwich
concerned events that transpired after the discovery of the victim’s death and
not during Appellant’s childhood. The brother’s statement was made in
response to the Commonwealth’s question regarding a statement the brother
previously made to police – that Appellant had a bad temper, and the brother
offered the sandwich episode as an example of what he meant when he
described Appellant as having a bad temper. This statement was offered to
rebut Appellant’s claims that the victim’s death was the result of an accident
or the victim’s clumsiness, two explanations Appellant provided to police and
witnesses when he characterized the events leading to the victim’s death. This
statement goes to establishing that the victim’s injuries, which ultimately led
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to his death, were not the result of an accident or the victim’s own clumsiness.
See Pa.R.E. 404(b)(2) (stating, evidence of other acts “may be admissible for
another purpose, such as proving . . . lack of accident”). Therefore, the
brother’s testimony that Appellant threw a sandwich, as an example of
Appellant’s bad temper, was not admitted in error.9
Regarding the brother’s second statement – Appellant got so mad he
could kill, the Commonwealth asked the brother, “Did you tell the [police]
detective: [Appellant’s] temper is so bad that I’ve seen him get so bad that
he could kill with his temper?” The brother responded, “Yes, when [he and I]
used to fight a lot.” Id. at 91. As discussed supra, the brother’s response
rebuts Appellant’s claim that the victim’s death was the result of an accident
or clumsiness. Therefore, this statement was not admitted in error.
Appellant next complains that trial counsel should have objected to the
Commonwealth’s question regarding Appellant’s reactions to his name being
omitted from the victim’s obituary. Appellant’s Brief at 26. A review of the
pertinent testimony cited by Appellant is as follows:
[Commonwealth:] Did you[, Brother,] know that [Appellant]
wasn’t [the victim’s] father?
____________________________________________
9 Moreover, Appellant’s defense throughout trial, as discussed in greater detail
infra, was that the killing was done with malice but not a specific intent to kill.
As such, Appellant placed his character, temper, and aptitude for violence at
issue and the Commonwealth was permitted to use evidence of other acts to
show Appellant’s capacity for, or lack of mistake or accident in, the formation
and consciousness of an intent to kill.
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...
[Brother:] He was proved by the court that he was
the father.
...
[Commonwealth:] [Appellant’s] name isn’t mentioned in [the
victim’s] obituary, right?
[Trial Counsel:] Objection.
[Trial Court:] Sustained.
[Brother:] Can I –
[Commonwealth:] Nothing further.
...
[Trial Counsel:] Would you like to explain something at
this time, sir?
[Brother:] The reason why his name wasn’t in the
obituary is because [Mother] was all mad
and everything. The whole family was
mad at us.
[Trial Counsel:] So [Appellant] had nothing to do with the
obituary?
[Brother:] No.
[Trial Counsel:] That’s the reason the name wasn’t there?
[Brother:] Yeah.
N.T., 11/14/00, at 102-103. A review of the pertinent testimony
demonstrates that the Commonwealth’s question was not “a question
regarding [Appellant’s] reaction” to the omission of his name from the
obituary, as asserted by Appellant. See id. at 103; see also Appellant’s Brief
at 26. Rather, the Commonwealth attempted to demonstrate, through
circumstantial evidence, that Appellant’s name was omitted from the obituary
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because he was not the victim’s biological father. Trial counsel objected to
the question, and the trial court sustained the objection. Trial counsel then
asked the brother on recross-examination to explain why Appellant’s name
was omitted from the obituary. N.T., 11/14/00, at 103. The brother explained
that Appellant’s name was omitted because he did not participate in preparing
the obituary, and the obituary was prepared by Mother who was
understandably angry with Appellant after he killed her son. Id. There is
nothing in the brother’s testimony that constitutes a prior bad act. Therefore,
Appellant’s claim that trial counsel was ineffective for failing to object to the
brother’s testimony on the ground that it constituted prior bad act evidence is
without merit.
Finally, Appellant contends that trial counsel was ineffective for failing
to object to the second neighbor’s statement that he observed Appellant
“hollering” at his girlfriend. Appellant’s Brief at 26. This statement was made
in the context of the second neighbor’s testimony regarding his interaction
with Appellant on the day following the victim’s death when Appellant
confessed to the second neighbor that he thought he killed the victim. N.T.,
11/15/00, at 17-21. The pertinent testimony was as follows:
[Commonwealth:] Did you ever see whether or not
[Appellant] had an unusual temper?
[Second Neighbor:] Yes.
[Commonwealth:] What have you observed about him?
[Second Neighbor:] Hollering and screaming, cursing.
[Commonwealth:] At whom?
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[Second Neighbor:] His girlfriend and at the [victim].
Id. at 20-21. The second neighbor’s statement establishes the family
environment and the relationships among Appellant, the acquaintance, and
the victim that form the history of the case and were part of its natural
development of events which ultimately led to the death of the victim.
Moreover, this statement tends to refute Appellant’s claims that the victim’s
death was the result of an accident or the victim’s clumsiness. Therefore,
these statements were properly admitted, and Appellant’s ineffectiveness
claim based on this statement is without merit.
Next, Appellant asserts that trial counsel was ineffective for failing to
object to a portion of the Commonwealth’s closing argument. Appellant’s Brief
at 35-39. Specifically, Appellant contends that “the Commonwealth twice
referenced [Appellant’s] alleged abuse of [Mother.]” Id. at 35. Appellant
argues that “[t]he closing argument, in addition to painting [Appellant] as
generally violent and abusive, highlighted evidence of domestic violence likely
to evoke a passionate response from the jurors.” Id. at 26.
Appellant’s ineffectiveness claim involves an underlying claim of
prosecutorial misconduct for which our standard and scope of review are
well-established.
In reviewing an assertion of prosecutorial misconduct, our inquiry
centers on whether the defendant was deprived of a fair trial, not
deprived of a perfect trial. It is well-settled that a prosecutor must
be free to present his or her arguments with logical force and
vigor. Comments grounded upon the evidence or reasonable
inferences therefrom are not objectionable, nor are comments
that constitute “oratorical flair.” Furthermore, the prosecution
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must be permitted to respond to defense counsel's arguments.
Consequently, [appellate courts have] permitted vigorous
prosecutorial advocacy provided that there is a reasonable basis
in the record for the prosecutor's comments. A prosecutor's
remarks do not constitute reversible error unless their
unavoidable effect would prejudice the jurors, forming in their
minds fixed bias and hostility toward the defendant so that they
could not weigh the evidence objectively and render a true verdict.
Finally, [appellate courts] review the allegedly improper remarks
in the context of the closing argument as a whole.
Commonwealth v. Sneed, 45 A.3d 1096, 1109-1110 (Pa. 2012) (citations,
some quotation marks, and original brackets omitted).
A review of the context of the closing arguments presented by both the
Commonwealth and trial counsel demonstrates a common agreement that the
case was not about whether Appellant’s actions resulted in the death of his
son but, rather, whether Appellant had the requisite intent to kill his son
required for a first-degree murder conviction. See N.T., 11/16/00, at 42
(stating, “[t]he case is about the degree of guilt, whether or not there’s
intent”); see also id. at 44 (stating, “I [(the prosecutor)] agree with [trial
counsel] on [the issue.] The whole issue for you ladies and gentlemen is: Is
[Appellant] guilty of first[-]degree [murder] or guilty of murder in the
third[-]degree? Because[] neither one of us [(the Commonwealth nor trial
counsel)] thinks that there’s any possibility that [Appellant] should not be
found guilty.”); Id. at 58 (explaining that, “I [(Appellant)] accept my
responsibility and I told [trial counsel that] I wanted him to some way address
the jury and let them know . . . I fully accept my responsibility”). During its
closing argument, the Commonwealth argued, in pertinent part, as follows:
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[Commonwealth:] [Mother] told you [Appellant] is a nice guy
except when he’s drinking, smoking
marijuana, using crack [cocaine]. What
did he do to her? He was abusive to her.
He was abusive to the child when the child
didn’t do –
[Trial Counsel:] Objection, your Honor – withdraw.
[Trial Court:] Okay.
[Commonwealth:] - when the child didn’t do exactly what he
wanted and the child touched the [video
cassette recorder,] touched the
television – and, remember, [the child]
was only four years old at that time,
maybe five – he would smack him. This
was a baby. And he would still smack
him.
Id. at 44-45.10 As explained supra, and as our Supreme Court held in Powell,
supra, Mother’s testimony regarding the abusive nature of Appellant’s actions
towards her – that he put his hands on her when he was drunk or high; that
____________________________________________
10 Although Appellant asserts, in his appellate brief, that “the Commonwealth
twice referenced [Appellant’s] alleged abuse of [Mother,]” Appellant only cites
to one portion of the transcript, which is set forth supra. See Appellant’s Brief
at 35, citing N.T., 11/16/00, at 44 (line 25) and 45 (lines 2-5). A review of
the Commonwealth’s closing argument demonstrates one additional reference
to Appellant’s abuse of Mother, as follows:
This poor little boy did not have a chance. I submit to you that
between having [Mother] who was using alcohol and drugs but
who was trying to get help by going into a [rehabilitation facility,]
and [Father], who was using the same stuff but wasn’t in a
[rehabilitation facility] and who was abusing both of them, that
child didn’t have a chance.
N.T., 11/16/00, at 53. For purpose of our disposition, we consider this second
portion of the Commonwealth’s closing argument in conjunction with the
portion cited by Appellant.
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he cursed at her, followed her, and was abusive; that he tried to steal money
from her and burned her with an iron; and that he knocked her into a closet
door – were properly admitted testimonial statements. As such, the
Commonwealth’s references in its closing argument to Appellant’s abusive
behavior towards Mother were grounded in the evidence and are not
objectionable. Therefore, we concur with the PCRA court, and the record
supports, that the Commonwealth’s references to Appellant’s abuse of Mother
“would in no way amount to prosecutorial misconduct.” PCRA Court Opinion,
6/30/22, at 11; see also Sneed, 45 A.3d at 1110 (stating, “[c]omments
grounded upon the evidence or reasonable inferences therefrom are not
objectionable”).
Next, Appellant claims that trial counsel was ineffective for failing to
object to the trial court’s response, during deliberations, to a jury question
regarding mens rea. Appellant’s Brief at 39-44. Appellant contends that the
trial court answered “yes” to the jury’s question, “[I]n committing a crime[,]
does total disregard for the outcome of the victim constitute an intent to kill?”
Id. at 39.
Because Appellant’s ineffectiveness claim is predicated upon trial
counsel’s failure to object to a jury instruction, our analysis is guided by the
well-settled principles pertaining to jury instructions.
A trial court has broad discretion in formulating and delivering
instructions to a jury. When reviewing the exercise of that
discretion, an appellate court must evaluate the trial court's
instruction as a whole to determine if it was fair or prejudicial. A
trial court may use such language as it chooses, so long as the
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law is clearly, adequately, and accurately presented to the jury for
its consideration. We will not rigidly inspect a jury charge, finding
reversible error for every technical inaccuracy, but rather evaluate
whether the charge sufficiently and accurately apprises a lay jury
of the law it must consider in rendering its decision. Error cannot
be predicated on isolated excerpts of the charge, but it is the
general effect of the charge that controls.
Commonwealth v. Drummond, 285 A.3d 625, 634-635 (Pa. 2022)
(footnotes and quotation marks omitted), cert. denied, ___ S.Ct. ___, 2023
WL 2959478 (2023) (slip copy). It is well-established that a jury is presumed
to follow a trial court’s instructions. Commonwealth v. Naranjo, 53 A.3d
66, 71 (Pa. Super. 2012).
Here, the trial court’s answer regarding the jury’s question was as
follows:
[TRIAL COURT:] The question reads: In committing a
crime does the total disregard for the
outcome of the victim constitute the
intent to kill?
Correct?
[JURY:] Yes.
[TRIAL COURT:] At the risk of repeating myself, as I
said - and I don't mind. It's what I have
to do.
As I said earlier today, the word intent
occupies a prominent space in the charge
of the court when I talk about malice. In
fact, when I defined, as you will recall,
both first and third[-]degree murder, the
only time the word intent is used in the
definition of the essential elements for
each of those offenses is in reference to
the third element under first[-]degree
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murder, which requires specific intent to
kill and with malice.
As I said, in talking about malice we're
dealing with three states of mind: An
intent to kill, an intent to inflict serious
bodily harm or, thirdly, a conscious
disregard of an unjustified and extremely
high risk that his actions might cause
death or serious bodily harm.
I also said that specific intent to kill, the
first form of malicious state of mind under
the law, is the type of finding that would
satisfy under first[-]degree murder both
malice and intent to kill. In other words,
the finding of a specific intent to kill would
satisfy the requirement of both the
specific intent required and the malice
required.
The other two examples of the state of
mind the law considers bad enough to
elevate a killing to murder is an intent to
inflict serious bodily harm or the third,
which I just defined starting with the
words: A conscious disregard of an
unjustified and extremely high risk.
You've asked a subjective question.
You've asked basically whether or not
under certain circumstances could a
conscious disregard of an extremely high
risk that what you're doing might cause
death or serious bodily harm rise high
enough in your analysis to be equivalent
to a specific intent to kill.
That's a subjective question, not
necessarily a factual question, although
facts do have a bearing upon its
resolution. The best I can tell you is that
you will have to evaluate all the evidence
in the case. You will have to understand
that it is not by accident that when the law
defines malice it specifically enumerates
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an intent to kill, an intent to inflict serious
bodily harm[,] and a conscious disregard
as three separate and distinct categories.
They can all result in a finding of malice[,]
but they do not all result in a
first[-]degree murder verdict.
Because when you're talking about, in
terms of your question, the intent to kill,
as I said in my charge earlier, considering
the seriousness of first degree, what
first[-]degree murder entails, the law
requires in the intent aspect of that that
at the time the killing act took place the
law demands that it be shown beyond a
reasonable doubt that at the time the
killing act took place the killer intended to
cause the end of the life of the person he
struck.
I'm sure in your life experience in the
application of common sense you can
conceive of situations where you would
conclude under the conscious disregard
theory some circumstances where you
might find that the person who was
disregarding the risk desired the end of
the life of the individual who was put at
risk. And I'm sure you can conceive of
situations where although someone was
disregarding a high risk that
[their]·actions might result in death you
can condemn that but would not
necessarily find that the person desired
the end of the life of the person. So I say
it's subjective.
I think it's significant that the law broke
the malice down into three separate
categories. I am not going to tell you
here and now that every factual
circumstance in life that results in
death under the conscious disregard
is equivalent to a specific intent to kill
but I'm not going to say that that's
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impossible either. That's an evaluative
decision that you would have to make, as
I said, because it's subjective looking at
all the facts and circumstances in the
case.
But I also think it's significant and
relevant to that determination to
remember that the law; not by accident,
specifically set out as the first [] form of
state of mind language with an intent to
kill. And I think, contemplating the
seriousness of the charge of first[-]degree
murder, as I said a moment ago, they
generally anticipate a finding where the
fact-finder - that is you in this case - can
conclude beyond a reasonable doubt at
the time the blow was struck or the blows
were struck that the result desired was
the end of someone's life. That's what
makes it first[-]degree murder as
opposed to other types of homicide.
I don't know if that answers your question
but I can't - part of what you have to do
is subjective in analyzing or making
inferences or conclusions from the
evidence.
I'm not saying it is an impermissible
exercise in logic to conclude that a
disregard of the outcome is equivalent to
an intent to kill. That's a possibility.
That's one of the alternatives. Whether it
rises that high or not, as I said, I think it's
something you'll have to evaluate based
upon how you interpret and evaluate and
infer from the evidence.
I can't add much more than that. All I'm
trying to point out is that it's instructive
that the law did break malice down into
three separate categories for the reasons
I've stated. I don't know if that helps you.
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N.T., 11/17/00, at 13-18 (emphasis added). The trial court later clarified its
response to the jury’s question as follows:
[TRIAL COURT:] Before I let you go - I will acknowledge on
the record this is sua sponte, without
correspond[e]nce with the jury or either
counsel.
I have done some reflection about things
that I've talked to you earlier about.
Although I believe that - in answer to your
last question I mean. I believe I gave you
a correct statement of the law but in an
abundance of caution I'm a little bit
concerned that there's a possibility,
however slight, that I might have caused
some confusion or misled you in any way.
So I want to make sure that we're, to
quote Richard Nixon, perfectly clear.
There's a phrase which is called murder
generally. When we as attorneys refer to
murder generally[,] we refer to a situation
where someone has been charged with
murder and the fact-finder, judge or jury,
has basically two decisions relevant to
that charge. They have to decide whether
in fact a murder was committed and, if so,
the second decision they make is
whether - what degree of murder is
involved.
When you hear the phrase murder
generally that's talking about murder
without any specification or conclusion as
of yet as to what degree may or may not
be involved.
In certain respects what has been put on
the table for you is a determination of a
murder generally case. Of course there's
always the considerations - and I don't
mean to pass over them lightly - even
though there's been argument by counsel
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about who caused - statements by
counsel in their arguments about there's
no question as to who caused the injuries.
You still have to make a decision.
All that comes down to is that in a murder
trial, for a killing to be murder the
Commonwealth must establish, as I said
earlier, someone has been unlawfully
killed; that the person accused, the
defendant, did the killing; and that the
killing was done with malice. Malice is the
general intent. Finding that is a
prerequisite to a finding of murder. If
there's a killing and there's no malice it's
not murder. It's something else.
So once you make that initial decision you
have to determine whether or not, was
someone killed? The defendant - did the
defendant, the person accused in this
case, do the killing and was the killing with
malice? That's where you bring to bear
my earlier definition of malice. When you
make your decision as to whether or not
this killing was with malice, if you decide
it was, that decision could be based on a
finding by you beyond a reasonable doubt
that the malice was grounded in an intent
to kill on the part of the accused or it was
grounded in an intent to cause physical
harm or it was grounded in what I have
been referring to, a finding that the
accused acted with a conscious disregard
of extremely high risk that his actions
might cause death.
To establish murder in the first degree[,]
the Commonwealth must also prove the
defendant specifically intended to kill.
Thus, in addition to the three
requirements that you bring to bear on a
finding of malice, the Commonwealth
must also prove the specific intent, which
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involves the concepts of premeditation
and deliberation.
The job is made a little bit simpler because
if you [] conclude beyond a reasonable
doubt that there is malice and the malice
is based upon an intent to kill, then you're
in effect also already completing the
second step, which for first[-]degree
murder is a finding of specific intent to kill.
If, however, your finding of malice is
based upon a finding beyond a reasonable
doubt that the malice was based upon an
intent to cause physical harm or was
based upon the conscious disregard
concept that I defined, then you have to
go into a second step to determine
whether or not there was proven beyond
a reasonable doubt a specific intent to kill.
What you bring to bear on that issue is all
the facts and circumstances and evidence
in the case that would bear upon that
specific decision.
The point I'm making is for a murder
verdict there's basically two steps. You
have to first determine if there's malice
involved. If there's no malice involved[,]
it is not murder[,] and you don't have to
consider anything else.
If there is malice involved[,] then in order
for first degree to be found you also have
to find a specific intent to kill. A person
has a specific intent to kill if he has a fully
formed intent to kill and is conscious of his
own intention.
A killing is with specific intent to kill if it is
willful, deliberate[,] and premeditated.
And, as I also indicated, premeditation
does not require planning or previous
thought of any particular length of time.
It can occur quickly.
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I was just concerned[,] and I wanted to
make sure I didn't run the risk of
confusing or misleading you. Or maybe
the only one that was confused was
myself.
Id. at 19-24.
While Appellant characterizes the trial court’s response to the jury
question as “a simple ‘yes’” answer, we find the trial court’s response, and
subsequent clarifying response, to be far from a simple “yes.” See Appellant’s
Brief at 41, 42 (describing the trial court’s response as a “short shrift answer
of ‘yes’”). Rather, the trial court informed the jury that its question was a
“subjective question” that must be answered by the jury after consideration
of the case-specific facts. N.T., 11/16/00, at 15. As the trial court aptly noted,
in some instances a total disregard for the outcome of the victim may give
rise to a finding of an intent to kill, and would, thus, constitute first-degree
murder, when the person who totally disregarded the risk to the victim,
desired to end the victim’s life. Id. at 16. Alternatively, the trial court
explained that a total disregard for the outcome of the victim may not rise to
the level of “intent to kill,” and would, thus, constitute, third-degree murder,
when the person, who totally disregarded the risk to the victim, did not desire
to end the victim’s life. Id. As such, the trial court sufficiently and accurately
appraised the jury of the law, and we discern no error in the trial court’s
instructions. Therefore, Appellant’s ineffectiveness claim on this ground is
without merit.
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Next, Appellant raises a claim that trial counsel was ineffective for failing
to request that an agreed upon curative instruction be provided to the jury
before the start of deliberation and for failing to object to the trial court
providing the curative instruction sua sponte during the deliberation process.
Appellant’s Brief at 44-48.
To place Appellant’s ineffectiveness claim in context, during Appellant’s
trial and in response to a question by the Commonwealth whether Appellant
had a bad temper his entire life, Appellant’s brother responded, “No, it calmed
down when he went to prison.” N.T., 11/14/00, at 89. Trial counsel objected,
and the trial court sustained the objection and indicated that trial counsel
preserved the issue. Id. The following day, the trial court, sua sponte raised
trial counsel’s objection to the brother’s testimony. N.T., 11/15/00, at 11.
The trial court denied Appellant’s request for a mistrial, but granted the
request that a curative instruction be provided, stating that the curative
instruction would be provided as part of the final charge. Id. at 12. The trial
court, however, failed to provide the curative instruction as part of its
instructions to the jury. N.T., 11/16/00, at 59-100. At the conclusion of its
charge, the trial court asked counsel “if they [had] any additions or
subtractions,” to which Appellant’s trial counsel did not raise the trial court’s
failure to provide the curative instruction regarding the brother’s testimony.
Id. at 100. During jury deliberations and in responding to questions presented
by the jury, the trial court, sua sponte, provided the curative instruction as
follows:
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Before I [answer your question,] I also should remark – you may
or may not recall but in an abundance of caution I feel I must
mention this – that during the testimony of one of the witnesses,
[Appellant’s brother] I believe, when he was being asked
questions generally falling within the category of, quote unquote,
the temper of [Appellant], he mentioned basically – even though
he wasn’t asked he volunteered that [Appellant’s] temper
improved when he came out of prison. I struck that comment
from the record.
I would ask you not to read anything into [the brother’s response]
one way or another due to the fact that [Appellant] may have
been in prison at one time in his life. You must not regard that as
any significant evidence because I struck it from the record. It
should not enter into your deliberations in any way and it should
not affect your evaluation of the issues in the case. Because it is
not, as I said, evidence. You should not consider [Appellant]
might be a person of either bad character or criminal tendencies
from which you may infer something negative or guilt from him.
Just totally ignore it as if it never happened.
...
I think the issue is clear in your minds that whatever that incident
may have been in the past, it was totally irrelevant and immaterial
and has nothing to do with anything involved in this case.
N.T., 11/17/00, at 2-3.
Here, Appellant asserts that trial counsel’s failure to request the curative
instruction before the start of jury deliberations and to object to the curative
instruction being provided during deliberations prejudiced him because “[b]y
giving this instruction during jury deliberations, [] the trial court actually
emphasized to the jury that Appellant had previously been incarcerated for an
unrelated incident.” Appellant’s Brief at 46. A finding that trial counsel’s
alleged ineffectiveness prejudiced Appellant would require us to ignore the
well-established principle that a jury is presumed to follow a trial court’s
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instructions. See Naranjo, 53 A.3d at 71. We decline Appellant’s invitation.
The trial court, in providing the curative instruction, informed the jury that the
comment had been struck from the record and that consideration of the
statement should not enter the jury’s deliberations. N.T., 11/17/00, at 2-3.
The trial court clearly stated that the statement was “totally irrelevant and
immaterial and has nothing to do with anything involved in this case.” Id. at
3. Therefore, we presume that the jury followed the trial court’s instruction
and did not consider the content of the brother’s statement in reaching its
verdict. See Naranjo, 53 A.3d at 71. As such, the record supports the PCRA
court’s denial of Appellant’s petition on this ground.
Next, Appellant contends that trial counsel was ineffective for failing to
challenge the victim’s cause of death, asserting that proof the death was
caused by “head trauma,” as stated in the medical examiner’s notice of death,
“would have corroborated [Appellant’s] claims of innocence.”11 Appellant’s
Brief at 48-52. In support of his claim, Appellant asserts,
A touchstone consideration for the jury in this case is whether the
evidence indicates an intentional act specifically intended to cause
death, or a course of gross recklessness which indicated disregard
for whether death would occur. Indeed, this is the difference
between first- and third-degree murder.
____________________________________________
11 As discussed supra, Appellant did not present a defense of innocence at trial
but, rather, asserted that his role in the victim’s death amounted only to
third-degree murder. See N.T., 11/16/00 (stating, “I [(Appellant)] fully
accept my responsibility. I’m not ducking and hiding behind no attorney and
not accepting I was responsible”).
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...
The Commonwealth was able to proffer a cause of death which
was at odds with the medical records.[12] More importantly, the
proffered cause of death undercut the defense while the “head
trauma” cause of death in the medical examiner’s notice [of
death] would have corroborated [Appellant’s] claims of innocence.
Had counsel aggressively challenged the cause of death, this
course of action would have directly supported the defense and
simultaneously undercut a keystone of the Commonwealth’s case.
Id. at 50.
A review of the “medical examiner’s notice and pronouncement of
death” (“notice of death”) demonstrates that the victim’s cause of death was
listed as “head trauma.” This cause of death was based upon the emergency
room physician’s assessment of the victim, upon his arrival at the hospital, as
well as information provided by the EMS worker who transported the victim to
the emergency room, and was not based upon an autopsy of the victim’s
body.13 The emergency room physician noted on the notice of death that the
victim arrived at the hospital with “bruises on [his] chest, [an] old scar on
____________________________________________
12 Appellant contends that the medical examiner, who performed an autopsy
of the victim and testified on behalf of the Commonwealth, stated that “the
actual cause of death was asphyxiation due to water buildup in decedent’s
lungs caused by a seizure, to which he was predisposed because of ‘prior
injuries.’” Appellant’s Brief at 49, citing Powell, 956 A.2d at 415-416.
13 As part of the notice of death, the treating emergency room physician noted,
based upon, inter alia, information provided by the EMS worker, that it was
reported the victim fell at 8:00 p.m., the victim could not be aroused at
9:30 p.m., Appellant initiated CPR, 911 emergency services received a call at
10:45 p.m. stating that the victim was unconscious, upon arrival of EMS the
victim had no vitals and was unconscious, and the victim was transported to
the emergency room where he was pronounced dead at 11:09 p.m.
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[his] head, [a left] eyelid laceration, [and] pupils [that were] fixed and
dilated.”
The medical examiner who oversaw the autopsy of the victim and was
admitted as an expert in the field of forensic pathology for the
Commonwealth,14 testified, at trial, to a reasonable degree of medical
certainty that the victim’s cause of death was due to “multiple blunt force
injuries” and the manner of death was homicide. N.T., 11/14/00, at 10, 23.
The medical examiner ruled the death a homicide because of the location of
the injuries on the victim’s body and the multiplicity of injuries, including
“fresh” injures, all over the victim’s body. Id. at 55.
The autopsy revealed “more than ten [fresh] blows” or blunt force
injuries to the victim’s body, including injury to the victim’s left upper eyelid,
the left jaw-cheek region, the back of the head and neck, over the forehead,
in the upper chest region, in the armpit and forearm regions, and to the
victim’s mouth, that were inflicted no more than 48 hours prior the victim’s
death. Id. at 23. In particular, the medical examiner testified that the victim
suffered, inter alia, a “fresh” blunt force injury to the top of his head. Id. at
20. The “fresh” injury to the victim’s skull and brain, coupled with prior,
similar injuries to the victim’s skull and brain, which were only detected as
part of the autopsy, in the medical examiner’s opinion, triggered the victim to
____________________________________________
14 The medical examiner who testified at trial was not the same physician who
examined the victim in the emergency room on November 20, 1997, and
completed the notice of death form.
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suffer a seizure on the day of death, which, in turn, caused the victim’s lungs
to fill with water and stopped the flow of oxygen to the victim’s brain, thereby
causing the victim to expire. Id. at 12-30. As such, the medical examiner’s
testimony that the victim’s cause of death was due to a blunt force injury to
the top of the victim’s head was not inconsistent with the emergency room
physician’s assessment that the cause of death was “head trauma.”
Our review of the cause of death testimony reveals that trial counsel
pursued a reasonable trial strategy given the evidence of substantial injuries
discovered on the victim’s body and the fact that the cause of death listed on
the notice of death was not inconsistent with the cause of death as explained
by the Commonwealth’s expert witness. For example, during
cross-examination of the medical examiner, trial counsel sufficiently
challenged the medical examiner’s assessment that the fatal injuries to the
victim’s head were not caused by a fall or accident. As a result of this
cross-examination, the medical examiner agreed that the victim’s death was
the “result of an accumulation of injuries [to the victim] over a time frame[.]”
Id. at 41. The medical examiner further agreed that it was conceivable the
injuries to the top of the victim’s head were caused by “a baseball hitting [the
victim] on the head.” Id. at 40.
It was then within the purview of the jury to weigh the evidence and
assess the credibility of the witnesses, such as the medical examiner, and
believe all, some, or none of the testimony regarding the cause of death. As
determined by our Supreme Court in Powell, supra, “[t]he evidence, when
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viewed in the light most favorable to the Commonwealth as verdict winner,
was sufficient to permit the jury to conclude, beyond a reasonable doubt, that
[Appellant] intentionally, deliberately, and with pre-meditation killed [the
victim].” Powell, 956 A.2d at 417.
Moreover, Appellant failed to demonstrate how he was prejudiced by
trial counsel’s alleged failure to challenge the cause of death by asserting that
the cause of death was simply due to “head trauma.” As discussed supra, the
cause of death listed on the notice of death is not inconsistent with the cause
of death as explained by the medical examiner who performed an autopsy on
the victim. Both the notice of death and the medical examiner noted the fresh
head trauma suffered by the victim, as well as fresh and healed injuries on
the victim’s body. As explained by the medical examiner, the fresh head
trauma, coupled with prior injuries, led to the victim suffering a seizure that
ultimately caused his death. In this context, focusing on head trauma as the
cause of death would not have wholly corroborated a claim of innocence, nor
was a strategy likely to diminish Appellant’s level of criminal culpability in a
meaningful way. As such, Appellant was not prejudiced by trial counsel’s
performance. Therefore, Appellant’s ineffectiveness claim on this ground is
without merit.
In his second issue, Appellant raises a claim that prior PCRA counsel was
ineffective for failing to raise trial counsel’s ineffectiveness regarding a
challenge to the victim’s cause of death. Appellant’s Brief at 53-59.
Appellant’s assertion of prior PCRA counsel’s ineffectiveness is belied by the
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record. Both Attorney Stretton, in the first amended PCRA petition, and
Attorney Kaufmann, the second amended PCRA petition, raised the claim that
trial counsel was ineffective for failing to challenge the cause of death. See
First Amended PCRA Petition, 12/31/18, at ¶17; see also Second Amended
PCRA Petition, 1/31/21, at 8. Moreover, the PCRA court addressed this claim
of trial counsel’s ineffectiveness in its Rule 1925(a) opinion. PCRA Court
Opinion, 6/30/22, at 13-15. As discussed supra, we concur with the PCRA
court that a claim of trial counsel’s ineffectiveness based on a failure to
challenge the cause of death is without merit. Therefore, Appellant is not
entitled to collateral relief based upon his allegations of PCRA counsel’s
ineffectiveness.15
____________________________________________
15 To the extent that Appellant asserts the PCRA court erred in denying his
petition without first conducting an evidentiary hearing, we find this claim to
be without merit.
It is well-established that a “a petitioner is not entitled to a PCRA hearing as
a matter of right[. T]he PCRA court can decline to hold a hearing if there is
no genuine issue concerning any material fact and the petitioner is not entitled
to post-conviction collateral relief, and no purpose would be served by any
further proceedings.” Commonwealth v. Taylor, 933 A.2d 1035, 1041
(Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008); see also
Pa.R.Crim.P. 907(1) (stating that, the PCRA court may dispose of a petition
without a hearing when the PCRA court is “satisfied from [its] review that
there are no genuine issues concerning any material fact and that the
[petitioner] is not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings”). For the reasons discussed
herein, we find Appellant failed to establish a colorable claim about which there
remained a material issue of fact. Therefore, we discern no error of law or
abuse of discretion in the PCRA court’s decision to deny the petition without
an evidentiary hearing.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2023
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