Com. v. Bender, C. ( 2018 )

J-S28003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLARENCE A. BENDER :
:
Appellant : No. 1278 MDA 2017
Appeal from the PCRA Order July 25, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000287-2012
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JULY 27, 2018
Appellant, Clarence A. Bender, appeals pro se from the order entered
on July 25, 2016, dismissing his petition filed under the Post-Conviction Relief
Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.
The trial court ably explained the underlying facts of this case:
Ms. [Tiffany Daniels'] testimony is summarized as follows[.]
Ms. Daniels and [Victor Pearson (hereinafter “the Victim”)]
were engaged at the time of the shooting. The Victim aspired
to become a rapper, posted videos of himself rapping on
YouTube, and performed at clubs and events. The Victim had
a reputation as being involved in the hip-hop scene and he
maintained a public image as being affluent.
On December 3, 2011, Ms. Daniels and the Victim went to
the Derry Street Cafe ("Cafe"), left, went to another bar, and
then returned to the Cafe at approximately 12:15 a.m. on
December 4, 2011. Ms. Daniels was intoxicated by the end of
the night. Although Ms. Daniels was familiar with Appellant
and [Brandon Ruiz (hereinafter "Co-Defendant Ruiz")], she
did not see either individual or [Appellant's friend, Tyrell]
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Weaver at the Cafe. Ms. Daniels and the Victim left the Cafe
at closing time, which was approximately 1:30 a.m.
In the parking lot, the Victim tried to maneuver his and Ms.
[Daniels'] car out of its spot, but it was blocked by another
vehicle. The Victim exited his vehicle and asked a nearby
individual if he knew who owned the vehicle, but the
individual did not respond. The Victim turned and lifted his
right leg, at which point Appellant grabbed the Victim from
behind and demanded that he "give that shit up." Appellant
grabbed the Victim by the neck with his left arm and, with his
right hand, held a chrome semiautomatic gun against the
right side of the Victim's neck. When Ms. Daniels heard
Appellant threaten the Victim, she bent down to look out of
the open driver's side doorway.
The Victim reached for his gun as he was attacked. As
Appellant and the Victim tussled, [Co-Defendant Ruiz], who
was unarmed, patted down the Victim. Ms. Daniels heard a
gunshot, exited the vehicle, and found the Victim lying face-
up in a pool of blood. One of the chains the Victim had that
night was missing after the shooting. Ms. Daniels asserted in
her testimony that Appellant shot the Victim.
[John] Sanks[, head of security at the Cafe,] testified that
the Victim and Ms. Daniels were frequent patrons of the Cafe.
Mr. Sanks testified that he was familiar with Appellant and
[Co-Defendant Ruiz], and that the two men arrived around
midnight on December 4, 2011. According to Mr. [Sanks']
testimony, he patted down both Appellant and [Co-Defendant
Ruiz], but found no contraband. Mr. Sanks testified that he
did not witness Appellant or [Co-Defendant Ruiz] interacting
with Ms. Daniels or the Victim that night.
Mr. Sanks testified that Ms. Daniels and the Victim left the
Cafe, that Appellant, [Christopher] Diggs, and Mr. Weaver
left the bar a few minutes later, and that [Co-Defendant Ruiz]
walked out afterwards. Mr. Sanks testified that, upon hearing
a gunshot outside, he looked across the street and saw
Appellant, [Co-Defendant Ruiz], the Victim and Ms. Daniels
in the area where the shot came from; Mr. Sanks then
watched [Co-Defendant Ruiz] and Appellant cross Derry
Street to return to the SUV. According to Mr. [Sanks']
testimony, Appellant ran away from the scene first. Mr.
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Sanks testified that [Co-Defendant Ruiz] and Appellant got
into the SUV and, after a moment, the SUV drove westward
down Derry Street.
...
According to [Harrisburg Police Detective Christopher
Krokos,] following an interview on December 4, 2011,
[Co-Defendant Ruiz] provided him with a statement that
essentially claimed that Appellant and [Co-Defendant Ruiz]
approached the Victim to assist him in maneuvering his
vehicle, but Appellant shot the Victim and took two of the
Victim's chains. Detective Krokos testified that, following an
interview on January 3, 2012, Appellant provided a statement
that asserted that [Co-Defendant Ruiz] was fighting with the
Victim in the parking lot, Appellant approached the two in
order to stop the fight, but [Co-Defendant Ruiz] shot the
Victim. Detective Krokos testified that the surveillance video
from the Cafe established Mr. Diggs, Mr. Weaver, and
Appellant arrived at the Café together, and that [Co-
Defendant Ruiz] met them at the bar. Detective Krokos
testified that the surveillance video from the Cafe established
that Appellant walked up directly behind the Victim when the
gunshot was fired.
Trial Court Opinion, 2/15/13, at 4-6 and 15 (internal footnotes omitted).
The jury found Appellant guilty of second-degree murder and robbery
and, on November 5, 2012, the trial court sentenced Appellant to serve a term
of life in prison for the murder conviction and a concurrent term of ten to 20
years in prison for the robbery conviction. See Commonwealth v. Bender,
96 A.3d 1093 (Pa. Super. 2014) (unpublished memorandum) at 3, appeal
denied, 99 A.3d 75 (Pa. 2014).
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On January 27, 2014, this Court affirmed Appellant’s judgment of
sentence in part and vacated the judgment of sentence in part.1 Specifically,
we vacated Appellant’s sentence for robbery (as robbery was the predicate
felony for Appellant’s second-degree murder conviction), but affirmed the
remainder of Appellant’s judgment of sentence. Id. at 11. Moreover, since
Appellant received a concurrent term of imprisonment for the robbery
conviction, we did not remand for resentencing. Id.; see, e.g.,
Commonwealth v. Robinson, 817 A.2d 1153, 1163 n. 14 (Pa. Super. 2003)
(holding: “our disposition does not upset the [trial] court's sentencing scheme
as the sentence we reverse here had been ordered to run concurrent to the
sentence imposed on [another] conviction. Under these circumstances, there
is no need to remand for resentencing”). The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal on August 29, 2014.
Commonwealth v. Bender, 96 A.3d 1093 (Pa. Super. 2014) (unpublished
memorandum) at 3, appeal denied, 99 A.3d 75 (Pa. 2014).
Appellant filed a timely, pro se PCRA petition on April 27, 2015. See
Appellant’s Pro Se PCRA Petition, at 3. As the PCRA court explained:
[Appellant] raised a myriad of issues in his [pro se petition].
These issues include an ineffective assistance of counsel
claim for failure to test the knowledge of lead Detective
Krokos and his affidavit for probable cause, an ineffectiveness
claim for failure to request a [Commonwealth v. Hall, 302
A.2d 342 (Pa. 1973)] hearing, failure to object to Ms.
[Daniels’ alleged] false testimony, failure to object to [Co-
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1 Our decision followed the nunc pro tunc restoration of Appellant’s direct
appeal rights.
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Defendant] Brandon [Ruiz’s alleged] false testimony, and
failure to object to the prosecutor’s closing argument.
Additionally, [Appellant raised] prosecutorial misconduct
[and Brady v. Maryland, 373 U.S. 83 (1963) claims].
PCRA Court Opinion, 9/23/16, at 2.
The PCRA court appointed counsel to represent Appellant during the
proceedings. See PCRA Court Order, 6/3/15 at 1; PCRA Court Order, 6/23/15
at 1; PCRA Court Order, 10/15/15, at 1. Nevertheless, on April 29, 2016,
appointed counsel filed a no-merit letter and a request to withdraw as counsel,
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
After reviewing counsel’s Turner/Finley letter, the PCRA court notified
Appellant that it intended to dismiss the PCRA petition in 20 days, without
holding a hearing. See PCRA Court Order, 9/23/16, at 1; Pa.R.Crim.P. 907(1).
Appellant responded to the PCRA court’s notice of intent to dismiss and raised
a number of additional claims for relief, including: 1) the jury’s inconsistent
verdict “demonstrat[es] that [Appellant] did not receive a fair trial;” 2) trial
counsel was ineffective for failing to object to the prosecutor’s closing
statement; and, 3) the Commonwealth committed a Brady violation because
“the surveillance video described by the detective at trial and in written
materials does not match the surveillance video shown at trial.” Appellant’s
Response to Rule 907 Notice, 11/7/16, at 1-6.
On June 8, 2017, the PCRA court again notified Appellant that it intended
to dismiss his petition in 20 days, without holding a hearing. PCRA Court
Order, 6/8/17, at 1. Appellant did not file a further response and, on July 25,
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2017, the PCRA court finally dismissed Appellant’s petition. PCRA Court Order,
7/25/17, at 1. The PCRA court then granted counsel’s petition to withdraw on
August 14, 2017. PCRA Court Order, 8/14/17, at 1.
Appellant filed a timely notice of appeal. He raises ten issues to this
Court:2
1. Did the PCRA court err when it ruled [Appellant’s] issues
as previously litigated and waived under 42 Pa.C.S.A.
§ 9544(b) when [Appellant] brought his claims under
ineffective assistance of counsel and other constitutional
violations pursuant to the . . . Constitution?
2. Did the [PCRA] court err when it dismissed [Appellant’s
PCRA petition] claiming that trial counsel was ineffective for
not requesting a suppression hearing, thereby violating
[Appellant’s constitutional rights]?
3. Did the PCRA court err by denying [Appellant] relief for not
conducting a post-trial evidentiary hearing under [Franks v.
Delaware, 438 U.S. 154 (1978)], thereby denying his rights
under the . . . Constitution, when [Appellant] proved by more
than a preponderance of the evidence that lead Detective []
Krokos, knowingly presented false statements in his affidavit
of probable cause for the arrest warrant, and without those
false statements there would have been insufficient probable
cause to arrest?
4. Did the PCRA court err when it dismissed Appellant’s
PCRA[] claim that trial counsel was ineffective when he failed
to object to the prosecutor’s use of false testimony from its
star witness when such false testimony rose to the level of
prosecutorial misconduct?
5. Did the PCRA court err when it denied Appellant’s PCRA
claim that the prosecutor knew before trial that he was going
to present false testimony from his star witness during trial,
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2 For ease of discussion, we have re-numbered Appellant’s claims on appeal.
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thereby violating [Appellant’s] rights under the . . .
Constitution?
6. Did the PCRA court err by dismissing Appellant’s PCRA
claim that counsel . . . was ineffective for not finding trial
counsel . . . ineffective for not objecting to false testimony?
7. Did the PCRA court err in denying Appellant relief under
the . . . Constitution when it was demonstrated that the
attorney for the Commonwealth . . . made a prima facie case
that [Appellant] was the person who shot and killed [the
Victim,] solely based on the Commonwealth’s star witness,
Tiffany Daniels[,] on January 17, 2012, given that on August
20, 2012, at docket number 2230 MDA 2012, the attorney
for the Commonwealth . . . finally conceded that [Co-
Defendant] Brandon Ruiz shot the Victim?
8. Did the PCRA court err in not granting PCRA relief when
trial counsel failed to object to the prosecutor’s closing
statements wherein he vouched for the truth of the
Commonwealth’s [witness’] testimony he knew was false?
9. Did the PCRA court err in not granting relief where trial
counsel failed to investigate pretrial evidence, i.e. video
footage that shows his client was away from the scene when
the fatal shot was fired?
10. Did the PCRA court err in denying Appellant PCRA relief
when trial counsel failed to object to flawed jury instructions
because they were flawed as a matter of law?
Appellant’s Brief at 2-4 (some internal capitalization omitted).
“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (internal citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
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resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
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success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
internal quotations and citations omitted). “A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.” Id.Finally, a PCRA petitioner is not automatically entitled to an evidentiary
hearing on his petition. A PCRA petition may be dismissed without a hearing
if the PCRA court “is satisfied from [its review of the petition] 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.” Pa.R.Crim.P. 907(1). However, when the PCRA
petition raises material issues of fact, the PCRA court “shall order a hearing.”
Pa.R.Crim.P. 908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision
to dismiss a petition without a hearing, an appellant must show that he raised
a genuine issue of fact which, if resolved in his favor, would have entitled him
to relief, or that the court otherwise abused its discretion in denying a
hearing.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (internal
quotations and citations omitted).
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First, Appellant claims that the PCRA court erred in its September 23,
2016 memorandum opinion, when the PCRA concluded that Appellant’s
petition “raises several claims that were addressed by the Pennsylvania
Superior Court on direct appeal and are therefore waived as claims that [were]
previously litigated.” PCRA Court Opinion, 9/23/16, at 3. Appellant argues
that his claims have not been previously litigated or waived, as they are
ineffective assistance of counsel claims or are otherwise cognizable under the
PCRA – and the first time he could have raised the claims was in his current
PCRA petition. See Appellant’s Brief at 32-33.
We agree with Appellant and conclude that his ineffective assistance of
counsel claims have not been previously litigated or waived under the PCRA
because “an ineffective assistance of counsel claim is a separate legal issue
distinct from the underlying substantive claim for which counsel allegedly had
provided ineffective assistance.” Commonwealth v. Derk, 913 A.2d 875,
883 n.6 (Pa. Super. 2006); see also Commonwealth v. Collins, 888 A.2d
564, 573 (Pa. 2005). Further, Appellant’s seventh claim – where he alleges
that he recently discovered exculpatory evidence – is also cognizable under
the PCRA and has not been previously litigated or waived. See 42 Pa.C.S.A.
§ 9543(a)(2)(vi). Thus, to the extent the PCRA court held otherwise, the court
erred.3
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3 We note that Appellant is not entitled to relief on appeal unless he can
establish that the PCRA court erred when it dismissed his petition without
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Appellant’s second through sixth claims all revolve around Appellant’s
contention that eyewitness Tiffany Daniels falsely identified him as the
shooter. See Appellant’s Brief at 12-35. Specifically, Appellant claims, in Ms.
Daniels’ December 4, 2011 statement to the police, Ms. Daniels told the police
that, while she witnessed the shooting, she did not know the shooter or his
accomplice. However, on December 5, 2011, Ms. Daniels told the police that,
prior to the shooting, she knew Appellant and Co-Defendant Ruiz – and that
she witnessed Appellant murder the Victim. See id. at 12-19; see also N.T.
Trial, 9/12/12, at 11-37 and 41-72. According to Appellant, Ms. Daniels’
second statement could not have been true because “[a person’s] memory
while intoxicated does not ‘improve’ the next day.” Appellant’s Brief at 16.
Further, Appellant claims that the statement was false and manufactured by
the police, as the police wanted “to get [Appellant] off the streets for good”
and they did this by “coercing Ms. Daniels to change her testimony to implicate
[Appellant].” Id. at 17.
From this unsupported supposition, Appellant claims that his trial
counsel was ineffective for: 1) not requesting a suppression hearing because
the affiant in the search warrant affidavit, Detective Krokos, “deliberately used
[Ms. Daniels’] fabricated evidence/statements in the affidavit of probable
____________________________________________
holding an evidentiary hearing. See, e.g., Commonwealth v. Williams,
977 A.2d 1174, 1177 n.8 (Pa. Super. 2009) (“we may affirm the PCRA court’s
decision on any basis”).
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cause” and 2) failing to object to the Commonwealth’s use of Ms. Daniels’ false
testimony at trial.4 See Appellant’s Brief at 12-35.
Appellant’s claims on appeal fail. Simply stated, the mere fact that Ms.
Daniels’ December 5, 2011 statement to the police differed from her
December 4, 2011 statement does not prove that her December 5, 2011
statement was false. Further, the jury was well aware of Ms. Daniels’ differing
statements because the defense introduced Ms. Daniels’ December 4 and 5,
2011 statements into evidence at trial – and then thoroughly cross-examined
Ms. Daniels as to differences between her statements and her possible
motivations for giving different statements to the police. See N.T. Trial,
9/12/12, at 11-37 and 41-72. Thus, Appellant’s second through sixth claims
are meritless.
Next, Appellant claims that he is entitled to relief because, during the
August 20, 2012 oral argument in Co-Defendant Ruiz’s direct appeal to the
Superior Court, the Commonwealth allegedly “conceded that ‘the evidence
showed [Appellant] was only involved in a robbery’ and that [Co-Defendant]
Ruiz ‘executed Victor Pearson.’” Appellant’s Brief at 21. According to
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4 Appellant’s claims on appeal are repetitive. Appellant’s contention that his
trial counsel was ineffective for not requesting a suppression hearing, as
Detective Krokos “deliberately used [Ms. Daniels’] fabricated
evidence/statements in the affidavit of probable cause” constitute Appellant’s
second and third claims on appeal. Appellant’s Brief at 12-26. Appellant’s
claim of ineffectiveness for failing to object to the Commonwealth’s use of Ms.
Daniels’ false testimony at trial encompasses Appellant’s fourth, fifth, and
sixth appellate claims. Id. at 26-35.
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Appellant, this alleged confession proves that “the prosecutor[] deliberate[ly]
use[d] [Ms. Daniels’] false statements . . . during trial” and that he is entitled
to relief under the PCRA because the Commonwealth’s alleged confession
“exculpates” him. Id. at 36-37. This claim fails.
Under 42 Pa.C.S.A. § 9543(a)(2)(vi), a petitioner is entitled to relief
under the PCRA where their conviction resulted from “[t]he unavailability at
the time of trial of exculpatory evidence that has subsequently become
available and would have changed the outcome of the trial if it had been
introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). As the Pennsylvania Supreme
Court has explained:
to prevail on an after-discovered evidence claim for relief
under subsection 9543(a)(2)(vi), a petitioner must prove
that (1) the exculpatory evidence has been discovered after
trial and could not have been obtained at or prior to trial
through reasonable diligence; (2) the evidence is not
cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.
Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017).
Here, even if the Commonwealth had conceded that ‘the evidence
showed [Appellant] was only involved in a robbery’ and that [Co-Defendant]
Ruiz ‘executed Victor Pearson,’” Appellant would not be entitled to relief under
the PCRA because Appellant was convicted of second-degree murder. Thus,
the “concession” that Appellant did not pull the trigger – but was involved in
the robbery – does not exculpate Appellant and would not have “changed the
outcome of the trial” because the Victim was shot and murdered during the
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course of this robbery. See 18 Pa.C.S.A. § 2502(b) (“[a] criminal homicide
constitutes murder of the second degree when it is committed while defendant
was engaged as a principal or an accomplice in the perpetration of a felony”).
Thus, regardless of whether Appellant did or did not pull the trigger, Appellant
was guilty of second-degree murder for the homicide that was committed
while he “was engaged as a principal or accomplice in the perpetration of” the
robbery. See id. Appellant’s claim on appeal thus cannot succeed.
For Appellant’s eighth claim on appeal, Appellant contends that his trial
counsel was ineffective for failing to object to “the prosecutor’s closing
statements wherein he vouched for the truth of [Ms. Daniels’] testimony.”
Appellant’s Brief at 37-38.
Within Appellant’s Amended PCRA Petition, Appellant claimed that
counsel was ineffective for failing to object to the following statements during
the Commonwealth’s closing argument: “both men had their hands on the
victim” and “Ms. Daniels does not have to lie.” Appellant’s Amended PCRA
Petition, 2/23/17, at 5. However, on appeal, Appellant contends that counsel
was ineffective for failing to object to the following statements made during
closing argument: a) “And what’s significant about her testimony is that she
saw it, she saw what happened, she saw who shot him. She saw who robbed
him;” b) “What motive does she have to give you that testimony? What
interest in the outcome of this case does she have to give you that testimony?
And what bias does she have towards anyone to say this was a robbery?” and,
c) “I ask you to credit her testimony because it is as I said free of motive, any
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bias, or any interest in the outcome of the case.” Appellant’s Brief at 38-40.
Appellant did not plead any of his appellate claims in his PCRA petition.
Therefore, the claims are waived. Pa.R.A.P. 302(a) (“[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on appeal”);
42 Pa.C.S.A. § 9543(a) (“To be eligible for relief under [the PCRA], the
petitioner must plead and prove by a preponderance of the evidence all of
the following. . .”) (emphasis added).
Ninth, Appellant argues that his trial counsel was ineffective for failing
to investigate “video footage that shows [Appellant] was away from the scene
when the fatal shot was fired.” Appellant’s Brief at 40. According to Appellant,
he did not receive this particular video footage during discovery. Id. at 40-
41. Nevertheless, Appellant admits that the jury saw the particular video
footage of which he complains and Appellant does not explain how he was
prejudiced, in any way, by counsel’s alleged failure to investigate. See id. at
41. Further, we cannot see how Appellant was prejudiced by counsel’s alleged
failure to investigate and obtain the video footage, when the jury actually saw
the video that, Appellant claims, his attorney failed to obtain.5 The claim thus
fails.
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5 Within this numbered claim, Appellant also contends that counsel was
ineffective for failing to call an expert “to testify at trial regarding the effects
of alcohol on the cognitive functions of the brain in an intoxicated individual.”
Appellant’s Brief at 41-42. This particular claim was not listed in Appellant’s
Pennsylvania Rule of Appellate Procedure 2116 “statement of questions
involved” section of his brief. Therefore, the claim is waived. Pa.R.A.P.
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Finally, Appellant claims that his trial counsel was ineffective for failing
to object to the trial court’s second-degree murder instructions because they
“were faulty as a matter of law.” Appellant’s Brief at 42.
As the PCRA court explained:
[Appellant] attempts to argue that the jury instruction, when
read as a whole, is clearly flawed and mis-instructs the jury
on the law and on the theory of criminality, or as the judge
stated, “culpability.” [Appellant’s Amended PCRA Petition,
2/23/17, at 11]. However, when viewed as a whole, this
instruction is nearly identical to the second alternative: killing
by defendant’s co-felon standard jury instruction for second-
degree murder. Pennsylvania Suggested Standard Jury
Instruction §15.2502(B) - Second-Degree Murder (Second
Alternative).
Read as a whole, the charge sufficiently instructed the jury
on the charge of second-degree murder. Therefore, counsel
cannot be deemed ineffective because he did not argue for
different jury instructions. As a result, appellate counsel
cannot also be deemed ineffective for failure to raise this
issue. Accordingly, this issue is without merit.
PCRA Court Opinion, 6/8/17, at 3-4 (internal footnote and corrections omitted
and some internal quotations omitted).
We agree with the PCRA court’s cogent analysis and conclude that
Appellant’s final claim on appeal fails.
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2116(a) (“No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby”).
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Appellant’s “Motion for Oral Argument Transcripts Held in this Court on
August 20 2013 in the Matter of Commonwealth v. Brandon Ruiz Docket No:
2230 MDA 2017” denied. Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/27/2018
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