Com. v. Banks, J. ( 2016 )

J-S63032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JEROME BANKS
Appellant No. 2678 EDA 2015
Appeal from the PCRA Order August 24, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0008665-2007
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 19, 2016
Appellant, Jerome Banks, appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his first Post Conviction
Relief Act1 (“PCRA”) petition without an evidentiary hearing. Appellant
contends trial counsel was ineffective for failing to preserve a weight of the
evidence claim. We affirm.
On Appellant’s direct appeal nunc pro tunc, this Court summarized the
relevant facts of Appellant’s convictions for first-degree murder2 and
possessing an instrument of crime3 (“PIC”):
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S §§ 9541-9546.
2
18 Pa.C.S. § 2502(a).
3
18 Pa.C.S. § 907(a).
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It is uncontroverted that [A]ppellant shot and killed the
victim, Andre Johnson (the victim). Commonwealth
witness Carl Martin, a security guard on his way home
from work, testified that, on May 12, 2007, at
approximately 11:15 PM, he was ascending the stairs to
the eastbound SEPTA Market-Frankford elevated station
(El) at 52nd and Market Street[s] in the City and County of
Philadelphia, when he heard two males, later identified as
[A]ppellant and the victim, facing each other arguing.
When he reached the E[l] platform, Martin heard two or
three gunshots, looked down from the El platform and
observed [A]ppellant standing close to the victim with his
arm outstretched, a gun in his hand. Appellant was
saying, “You threatening me? You threatening me?” The
victim appeared to be attempting to back away from
[A]ppellant. A few minutes later, Martin heard an
additional two shots and saw the victim fall to the ground.
Just then, a police patrol car rode by traveling northbound
on 52nd Street. As the patrol car drove by, [A]ppellant
raised his arms in the air, stating “self defense, self
defense.” However, the patrol car did not stop. Appellant
then walked to a nearby vehicle, got in, and drove away,
traveling southbound on 52nd Street. Martin waited until
the vehicle was gone, called 911, then came down from
the El platform to check the victim. He observed two
gunshot wounds on the victim, one to the right shoulder
area and one to the stomach area. He searched the victim
but did not find a weapon. Martin was taken to the
Homicide Unit where he gave a statement consistent with
his testimony.
Commonwealth witness Robert E. Johnson, Sr., testified
that he got off the El at 52nd and Market Street[s] and
walked down the up escalator onto the southwest corner of
52nd and Market. He observed two males, [A]ppellant
who he identified in court, and the victim, who he knew
from the area, holding a conversation. As he walked by,
he heard the victim tell [A]ppellant, “So, I said, you know
what, put a hit out on your butt.” Appellant responded,
“What, you still talking stuff.” When Johnson was about
twenty-five feet away, he heard three gunshots. He took
cover, called 911 and looked back to see [A]ppellant facing
west up Market Street. He heard two more shots, saw
flashes from [A]ppellant’s hand, and observed the victim,
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who had been out of his view, fall to the ground. Johnson
then watched as [A]ppellant raised his hands as a police
patrol car drove by. When the patrol car drove away,
Johnson observed [A]ppellant get into a minivan and drive
away. He was able to give a description of the vehicle and
the tag number to the 911 operator. Johnson gave a
statement to [h]omicide [d]etectives.
Philadelphia Police Officers arrived at the scene at
approximately 11:18 PM, to find the body of the victim,
lying on the southwest corner of 52nd and Market
Street[s], by the SEPTA elevated [escalator. Medics tried
to revive the victim, but pronounced him] dead at the
scene . . . . The medical examiner determined that the
victim died of blood loss as a result of multiple gunshot
wounds; a perforating gunshot wound to the chest that
entered the right chest, traveled through the heart, the
right lung, the aorta, and the left lung, then exited the left
back, and a penetrating gunshot wound that traveled
through the pelvis and into the left buttock where a bullet
was retrieved. The bullet was turned over to the Firearms
Identification Unit (FIU) for analysis.
Meanwhile, in response to a radio call that the shooter
involved in the incident at 52nd and Market Street[s]
wanted to surrender, Police Officer Hector Rodriguez of the
18th Police District went to the District Headquarters at
55th and Pine Streets where he found [A]ppellant in a
burgundy minivan with the flashers on. As Officer
Rodriguez removed [A]ppellant from the minivan and
placed him in the police vehicle, [A]ppellant told Officer
Rodriguez that he shot the victim, that it was self defense,
that the victim put a hit out on him, and that they both
were drunk. Appellant also told the Officer that his gun
was in the vehicle, in the console between the two seats.
A search of [A]ppellant’s person recovered a pocket knife,
a six-round speed loader loaded with six live .357 rounds
and an ankle holster. Appellant was placed in a police
vehicle and transported to the Homicide Unit.
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After being Mirandized,[4] [A]ppellant gave Homicide
Detective David Baker a statement indicating that he felt
that his life was threatened because the victim told
[A]ppellant that he had put a contract out on him.
Appellant took the threat seriously. Appellant indicated
that he lifted his shirt to show the victim that he was not
carrying a gun and the victim became more aggressive.
Appellant then retrieved his gun from the ankle holster and
placed it in his pocket. The victim lunged at [A]ppellant
and [A]ppellant shot him in his left leg then in his right leg.
The victim made another step and called [A]ppellant a
name. Appellant then shot the victim in his chest. He
tried to get the attention of an officer who [rode] by in his
patrol car, but when the officer did not stop, [A]ppellant
decided to drive himself to the police station and called
911 to let the police know. He drove to 55th and Pine
Streets and put his flashers on. Appellant stated that he
did not see the victim with a weapon, but he was
“reaching” as if he had one. Appellant did not retreat
because he thought he had no reason to, and because he
had a gun. Appellant’s testimony at trial was substantially
consistent with the statement he gave Detective Baker.
Commonwealth v. Banks, 2454 EDA 2011 (unpublished memorandum at
1-2) (Pa. Super. filed Jan. 29, 2013), appeal denied, 90 EAL 2013 (Pa. Aug.
29, 2013) (citation and internal footnotes omitted).
At trial, Appellant testified on direct examination that he was
“hacking”5 at the corner of 52nd and Market Streets in Philadelphia on March
12, 2007, at around 10:30 p.m., when he encountered the victim and struck
up a conversation. N.T. Trial, 1/7/08, at 134-35, 137. The victim began
4
Miranda v. Arizona, 384 U.S. 436 (1966).
5
“Hacking” referred to Appellant’s working as an unlicensed taxi driver. N.T.
Trial, 1/7/08, at 130.
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ranting to Appellant how people were in the victim’s business, and how he
killed people for “contracts.” Id. at 140-41. Appellant continued:
[Appellant]. Okay. Just basically [the victim] finally had
got to the point―after he was saying all this, he finally got
to the point and said that he had put a contract out on me.
And I said, Well, what did I do to you? He said, Don’t
worry about it.
[Appellant’s Trial Counsel6]. What was his tone of voice
when he was saying that to you?
A. Basically his expressions and his voice was high-
pitched.
Q. Did you feel threatened as a result of what he said to
you?
A. Basically, basically, when he first said that he had put a
contract on me, I have to be honest, no, I did not believe
him.
But by me asking him and saying certain things,
basically, I have to admit, I played along with him just to
feel if it was the truth.
Q. Okay. What did he say to you?
A. When he said that he put a contract on me, I said,
Yeah? He said that’s what he do. He do contracts.
I said, You do contracts? He said yeah. He said it’s
young boys who contracts. He said they’re going to do the
job for him.
I said, Yeah, they going to do it for free? He said, Don’t
worry about that.
6
Appellant was represented at trial by Douglas L. Dolfman, Esq. (“trial
counsel”).
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He said―I said, Well, I don’t know no young boys who
do jobs for free.
I’m basically playing with him.
* * *
Q. All right. Go on. What happens next?
A. And while he’s saying this in my face and by his facial
expressions, tone of voice, and then he was spitting in my
face, beings as though he had a missing tooth and I guess
by he was drunk, as he was speaking, he was spitting in
my face.
And that’s when basically I started taking him serious.
I had to ask him, I said, Dray, can you get out of my face?
He kept on saying, yeah, well, yeah, something about to
happen. It’s about to happen real soon.
Q. Was Dray his nickname?
A. Yes.
Q. Go on.
A. And when he kept going and I kept―I had told him.
Basically I used the word. I told him to get the “F” out of
my face. Then he just continued on. He said yeah, yeah,
he said, don’t worry. It’s about to happen.
At the time he just stepped two steps away from me,
and then when he said that, for me, that put my level of
awareness up. I have to look around. I’m not looking at
him anymore. I’m letting him talk. Now I’m looking
around both sides because to me that’s a sign of he’s
about to set me up.
Q. What did you see?
A. What did I see? I seen four or five gentlemen come up
from my left, and when they came up from my left, I
recognized them because these was the same gentlemen
which a year ago had broke into my car. . . .
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When he approached me, when they came up, I was
aware of them. They had a hoodie on their head, they had
a baseball cap, and they had a hand in their pocket.
* * *
A. So when I seen they approach, when they came and
approached me, I knew basically it was like a setup.
That’s when I basically slipped from between Dray, and I
literally went in the middle of the street. I said if they was
going to try to make a move, I want everybody to see,
traffic. So I literally ran in the street in between traffic.
Q. Where did Dray go?
A. Dray had backed up. That’s when he backed up back to
the corner . . . and the other gentlemen, I seen them
approach, went up the steps, the escalator. But by that
time, which when they approached, I reached down and
grabbed my weapon.
Id. at 148-52. Appellant testified he removed his firearm from a holster on
his left ankle and placed it in his pocket. Id. at 152-53. The victim saw
Appellant and stated, “Yeah, here you go playing with guns. I’m not scared
of no guns.” Id. at 153.
The victim then approached Appellant, and Appellant fired two shots at
the victim’s leg. Id. at 154.
[Trial Counsel]. When you fired the two shots at [the
victim], where were his hands?
A. Oh, his hands constantly stayed in his pocket, yes.
* * *
Q. Did you ever see a weapon on him?
A. No.
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Id. at 155-56. Appellant testified that after the two shots, the victim
remained standing and “charged after” Appellant. Id. at 158. Appellant
then shot the victim in the chest. Id. After attempting and failing to flag
down a passing police car, Appellant called 911 and drove himself to the
local police station. Id. at 159, 162. Appellant told the 911 dispatcher that
he had shot the victim and still had his gun on him. Id. at 162-63.
Appellant went on to testify that he had a permit to carry his firearm:
[Trial counsel]. Did you have a permit to carry a gun?
A. Yes.
* * *
Q. Okay. And what did you state on [your permit] was
your reason for wanting a permit or reason for getting it?
A. Basically I’m on disability as I speak of right now. I am
a victim of a crime. My left arm is permanently damaged
for the rest of my life. I lost all muscle. If they want to
see my fingers, I have constant permanent nerve damage.
I’m in pain 24/7. I suppose to be going to the pain clinic,
but I stopped going to the pain clinic because I don’t
believe in taking medication.
Q. So what does it say on your permit for reason for
getting it?
A. Self-defense.
Id. at 164-65.
On cross-examination, the Commonwealth questioned Appellant about
his police statement, which the Commonwealth read into the record:
[Commonwealth]. I’m going to read it to you again.
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Question: When you first felt threatened by [the
victim], why didn’t you just walk away or call 9-1-1?
Answer: I basically had no reason to run. I didn’t
do nothing to nobody, and I was protected by my
gun. Really my mind told me that I shouldn’t run
because, if I ran, people would think that I wouldn’t
use my gun.
Did I read that accurately as it’s typed there on that
paper?
A. Yes, you is correct.
Q. Okay. And do you recall being asked that question by
the Homicide detectives?
A. Yes, you is correct.
Q. And did you give them that answer as I just read it?
A. Yes, you is correct.
Q. So you told them that?
A. Yes, you is correct.
Id. at 238-39.
At the conclusion of trial, the court charged the jury on first-degree
murder, third-degree murder, and voluntary manslaughter. The jury
convicted Appellant of first-degree murder and possessing an instrument of
crime (“PIC”). The court sentenced Appellant on March 28, 2008, to life
imprisonment for murder, and a concurrent sentence of two and one-half to
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five years’ imprisonment for PIC. No timely post-sentence motions were
apparently filed.7
On September 29, 2008, Appellant filed a pro se PCRA petition, in
which he alleged ineffective assistance of trial counsel. After filing a second
pro se petition, the court appointed Elayne Bryn, Esq. (“appointed counsel”),
to represent Appellant. Appointed counsel subsequently filed two amended
PCRA petitions and accompanying memoranda, which (1) alleged, inter alia,
trial counsel was ineffective for failing to preserve a weight of the evidence
claim and (2) requested reinstatement of Appellant’s rights to file a post-
sentence motion and direct appeal nunc pro tunc. Thereafter, on August 12,
2011, appointed counsel filed a motion to withdraw Appellant’s request to
file post-sentence motions nunc pro tunc citing this Court’s decision in
Commonwealth v. Barnett, 25 A.3d 371 (Pa. Super. 2011) (en banc).8
7
Trial counsel sent Appellant a letter on May 30, 2008, informing him that a
post-sentence motion had been filed on his behalf. Although a review of the
record indicates a post-sentence motion and a request for appointment of
appellate counsel were entered on the docket on April 18, 2008, the trial
court informed Appellant on August 15, 2008, that no post-sentence motions
were filed on his behalf. Furthermore, on June 11, 2008, this Court
apparently granted Appellant’s petition to withdraw an appeal, although the
circumstances giving rise to that order are unclear from the record.
8
Barnett concluded that ineffective assistance of counsel claims could not
be raised on direct appeal absent a waiver of the defendant’s PCRA rights.
Barnett, 25 A.3d at 377. Our Supreme Court subsequently vacated that
decision and remanded the case to the trial court for further proceedings in
light of Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). See
Commonwealth v. Barnett, 84 A.3d 1060 (Pa. 2014).
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Appellant also withdrew his claim regarding trial counsel’s ineffectiveness for
failing to challenge the weight of the evidence. The court permitted
Appellant to withdraw his ineffectiveness claims, and granted him leave to
file a notice of direct appeal nunc pro tunc.
Appellant filed a notice of appeal nunc pro tunc on September 7, 2011.
This Court subsequently affirmed Appellant’s judgment of sentence on
January 29, 2013, holding that the evidence was sufficient to rebut his claim
of self-defense and sustain the convictions. Banks, 2454 EDA 2011 at 10.
Although Appellant also attempted to challenge the weight of the evidence,
which the trial court addressed in its Pa.R.A.P. 1925(a) opinion, this Court
found that claim was waived based on Appellant’s failure to preserve it in a
post-sentence motion. See id. at 11. Our Supreme Court denied allowance
of appeal on August 29, 2013.
Appellant filed a pro se PCRA petition on September 26, 2013, and an
amended pro se petition on October 15, 2013, both of which alleged
ineffective assistance of trial counsel. The PCRA court appointed Dennis I.
Turner, Esq. (“PCRA counsel”), who filed an amended petition on March 1,
2015, alleging, inter alia, trial counsel’s ineffectiveness for failing to file a
post-sentence motion challenging the weight of the evidence. The
Commonwealth filed a motion to dismiss Appellant’s petition, and on July 28,
2015, the PCRA court issued notice of its intent to dismiss Appellant’s
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petition without a hearing pursuant to Pa.R.Crim.P. 907.9 The PCRA court
subsequently dismissed Appellant’s petition on August 24, 2015. Appellant
timely filed a notice of appeal on August 31, 2015. The PCRA court ordered
Appellant to file a Rule 1925(b) statement, and Appellant timely complied.
Appellant raises the following issue for our review:
Whether the PCRA court violated paragraph (1) of Rule
907 of Pa.R.Crim.P. by summarily dismissing [Appellant’s]
PCRA petition without [an] evidentiary hearing, where
there was a genuine issue of material fact as to whether
trial counsel had a reasonable basis for failing to file a post
trial motion to challenge the weight of the evidence in
connection [with] “specific intent to kill”, where
[Appellant’s] medical history of having previously been
violently assaulted would have bolstered the credibility
that [Appellant] believed it was necessary for him to use
deadly force on that present occasion to protect himself
from the use of unlawful deadly force against him by
decedent, in support[] [of] his self defense claim?
Appellant’s Brief at 5.
Appellant argues trial counsel was ineffective for failing to preserve a
weight of the evidence issue. Id. at 13. Appellant contends trial counsel
failed to present evidence of Appellant’s medical history to support his self-
defense claim, which went to the weight of the evidence. Id. Specifically,
Appellant alleges his pre-sentence investigative report revealed he was
9
Appellant responded pro se to the PCRA court’s Rule 907 notice on August
17, 2015. However, because PCRA counsel represented Appellant, his pro
se Rule 907 response violated the policy precluding hybrid representation
and could not be considered by the PCRA court. See Commonwealth v.
Jette, 23 A.3d 1032, 1036 (Pa. 2011).
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stabbed and slashed with a box cutter in 2000, shot in the arm and side in
2001, and was involved in a serious car accident in 2002. Id. at 18-19.
Appellant claims he suffers from post-traumatic stress disorder, substance
abuse, and chronic pain syndrome because of these events and has received
mental health treatment. Id. at 19.
Appellant also avers his history of being assaulted affected his
perception of his encounter with the victim and is directly relevant to his
self-defense claim or a possible reduction in the grade of the offense. Id. at
19-20. Appellant asserts the testimony of the Commonwealth’s witnesses
was consistent with Appellant’s perception that the victim threatened him
and caused him to fear for his life. Id. at 20. Appellant maintains trial
counsel lacked a reasonable basis for failing to raise a weight claim in a
post-sentence motion, and he suffered prejudice from trial counsel’s
inaction. Id. We conclude no relief is due.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted). “[A] PCRA
petitioner is not automatically entitled to an evidentiary hearing. We review
the PCRA court’s decision dismissing a petition without a hearing for an
abuse of discretion.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.
Super. 2014) (citation omitted). Further, when the PCRA court denies relief
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without an evidentiary hearing, this Court must examine each of the issues
raised in light of the record to determine whether the PCRA court erred in
concluding there were no genuine issues of material fact. Id. (citation
omitted).
[C]ounsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and
proves that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable basis for his or her conduct;
and (3) Appellant was prejudiced by counsel’s action or
omission. To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA
petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate
allegations of ineffectiveness.
Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (quotation
marks and citations omitted).
As to Appellant’s claim that trial counsel was ineffective for failing to
preserve a weight of the evidence claim,
[i]t is well settled that the jury is free to believe all, part,
or none of the evidence and to determine the credibility of
the witnesses, and a new trial based on a weight of the
evidence claim is only warranted where the jury’s verdict is
so contrary to the evidence that it shocks one’s sense of
justice.
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citation
omitted).
Rule 607 of the Pennsylvania Rules of Criminal Procedure states:
Rule 607. Challenges to the Weight of the Evidence
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(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A).
“To sustain a conviction for murder of the first-degree, the
Commonwealth must prove that: (1) a human being was unlawfully killed;
(2) the person accused is responsible for the killing; and (3) the accused
acted with specific intent to kill.” Commonwealth v. Rivera, 983 A.2d
1211, 1220 (Pa. 2009) (citations omitted). Murder requires proof of malice.
Commonwealth v. Sepulveda, 55 A.3d 1108, 1143 (Pa. 2012). The use
of deadly weapon upon a vital part of the body may establish the intent to
kill and malice. Commonwealth v. Briggs, 12 A.3d 291, 306 (Pa. 2011).
A claim of self-defense “tends to negate the malice required for
murder” and the unlawfulness of the killing. Sepulveda, 55 A.3d at 1143
(citation omitted). Section 505 of the Crimes Code defines self-defense, in
part, as follows:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the
person.—The use of force upon or toward another person
is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting
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himself against the use of unlawful force by such other
person on the present occasion.
(b) Limitations on justifying necessity for use of
force.—
* * *
(2) The use of deadly force is not justifiable under this
section unless the actor believes that such force is
necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse
compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or
serious bodily injury, provoked the use of force
against himself in the same encounter; or
(ii) the actor knows that he can avoid the
necessity of using such force with complete safety by
retreating, except the actor is not obliged to retreat
from his dwelling or place of work, unless he was the
initial aggressor or is assailed in his place of work by
another person whose place of work the actor knows
it to be.
18 Pa.C.S. § 505(a), (b)(2)(i)-(ii).
The Pennsylvania Supreme Court has observed,
When a defendant raises the issue of self-defense, the
Commonwealth bears the burden to disprove such a
defense beyond a reasonable doubt. While there is no
burden on a defendant to prove the claim, before the
defense is properly at issue at trial, there must be some
evidence, from whatever source, to justify a finding of self-
defense. If there is any evidence that will support the
claim, then the issue is properly before the fact finder.
Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001) (citations
omitted); accord Commonwealth v. Mouzon, 53 A.3d 738, 743 (Pa.
2012).
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Additionally, Section 2503(b) of the Crimes Code states:
A person who intentionally or knowingly kills an individual
commits voluntary manslaughter if at the time of the
killing he believes the circumstances to be such that, if
they existed, would justify the killing under Chapter 5 of
this title, but his belief is unreasonable.
18 Pa.C.S. § 2503(b). A claim of “imperfect self-defense” under Section
2503(b) is “imperfect in only one respect―an unreasonable rather than a
reasonable belief that deadly force was required to save the actor’s life. All
other principles of justification under 18 Pa.C.S. § 505 must have been met.
. . .” Rivera, 983 A.2d at 1225 (citation omitted). Thus, a defendant may
not provoke or continue “the difficulty” that led to the slaying and then claim
self-defense. Mouzon, 53 A.3d at 751. Similarly, a claim of justification or
imperfect self-defense may be rebutted “where there is an avenue of
retreat, if the defendant knows the avenue of retreat is available.”
Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa. Super. 2009)
(citation omitted).
At the outset, we note that Appellant’s claim that trial counsel was
ineffective for failing to file a post-sentence motion challenging the weight of
the evidence is misplaced. Appointed counsel initially raised the issue of
trial counsel’s ineffectiveness and sought reinstatement of Appellant’s rights
to file a post-sentence motion and a direct appeal nunc pro tunc. However,
appointed counsel withdrew Appellant’s request to file post-sentence
motions nunc pro tunc and proceeded to the direct appeal nunc pro tunc
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without preserving Appellant’s weight of the evidence claim. This Court
subsequently found Appellant’s weight of the evidence claim waived. See
Banks, 2454 EDA 2011 at 11; see also Pa.R.Crim.P. 607(A). Therefore,
Appellant’s claim of trial counsel’s ineffectiveness for failing to file a post-
sentence motion could have been addressed in the PCRA proceeding leading
to his direct appeal nunc pro tunc and his instant claim should have been
directed toward appointed counsel’s failure to preserve the issue in the
direct appeal nunc pro tunc. See 42 Pa.C.S. § 9544(b) (“an issue is waived
if the petitioner could have raised it but failed to do so . . . during unitary
review”).
In any event, we agree with the PCRA court’s determination that
Appellant cannot show prejudice resulting from trial counsel’s ineffectiveness
with respect to his intended weight challenge. See PCRA Ct. Op., 11/20/15,
at 5. Appellant testified on direct examination that he initially did not feel
threatened because he believed the victim was lying about having a
“contract” out to kill Appellant. N.T. Trial, 1/7/08, at 148-49. Nevertheless,
Appellant continued to engage in a conversation with the victim about the
“contract” until he began to get in Appellant’s face. Id. at 149-51. Upon
seeing several young men walking toward them, Appellant backed up into
the street and placed his firearm in his pocket. Id. at 151-52. Rather than
retreat, Appellant fired several shots at the victim’s legs. Id. at 154, 156.
When the victim continued to approach Appellant, he fired a fatal shot into
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the victim’s chest. Id. at 158. Appellant conceded he did not see the victim
with a weapon. Id. at 156.
Additionally, Appellant’s police statement further revealed that he did
not run away when he first felt threatened because he had his firearm and
believed people would discover that he fled instead of using it. Id. at 238-
39. When the Commonwealth further inquired as to why Appellant did not
back away down the street to his car after brandishing his firearm, Appellant
responded that he “should have, would have, could have” retreated. Id. at
264. Therefore, even if Appellant believed force was necessary to protect
himself from the victim, he knew he could have avoided any further
altercation with the victim by retreating. See Ventura, 975 A.2d at 1143.
Moreover, the jury was also aware that Appellant was the victim of
several crimes in his past that resulted in significant injuries. See N.T. Trial,
1/7/08, at 164-65. The court also instructed the jury on self-defense, as
well as imperfect self-defense. N.T. Trial, 1/8/08, at 33-38. Thus, the jury
was aware of the various scenarios for which self-defense could apply, but
still found Appellant’s actions were not justified. See 18 Pa.C.S. §§ 505(a),
(b)(2)(i)-(ii), 2503(b). Thus, the record supports the PCRA court’s
determination that even if Appellant’s weight of the evidence challenge had
been preserved for direct appeal, no relief would have been due because the
verdict did not shock the sense of justice. See PCRA Ct. Op. at 7; Houser,
18 A.3d at 1135-36.
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J-S63032-16
Lastly, to the extent Appellant asserts that there was additional, more
detailed evidence regarding his personal history and mental state at the time
of the incident, he has failed to develop independent claims that trial counsel
was ineffective for failing to investigate or present evidence. Similarly, he
has failed to respond to the PCRA court’s suggestion that he failed to plead
that counsel should have been aware of the evidence contained in the pre-
sentence investigative report. See PCRA Ct. Op. at 5. Therefore, these
claims are waived. See Commonwealth v. Janda, 14 A.3d 147, 164 (Pa.
Super. 2011). Moreover, because there was ample basis for the jury to find
that Appellant violated the duty to retreat, Appellant cannot claim that the
additional evidence regarding his mental state at the time of the incident
would have altered the jury’s deliberation on his claims of self-defense or
imperfect self-defense. Accordingly, because the PCRA court’s findings are
supported by the record and its legal conclusions are free of error, we affirm.
See Miller, 102 A.3d at 992.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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