Com. v. Styles, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES E. STYLES
Appellant No. 3474 EDA 2015
Appeal from the PCRA Order November 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014913-2009
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED JANUARY 03, 2017
James E. Styles appeals from the order entered November 13, 2015,
in the Philadelphia County Court of Common Pleas, dismissing his first
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 Styles seeks relief from a term of five to ten years’
imprisonment, and a consecutive, aggregate term of five years’ probation,
for numerous violations under the Uniform Firearms Act (“VUFA”). 2 On
appeal, Styles contends trial counsel was ineffective for failing to pursue a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See 42 Pa.C.S. §§ 9541-9546.
2
See 18 Pa.C.S. § 6101 et seq.
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duress defense and corresponding instruction. For the reasons below, we
affirm.
The PCRA court set forth the factual history as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia Police Officer Javier Montanez. On October 2, 2009,
at approximately 10:15 p.m., Officer Montanez was on patrol in
the area of 29th and Flora Streets, in the city and county of
Philadelphia, Pennsylvania. While driving southbound on 29 th
Street, he observed a crowd of approximately twenty-five (25)
people on the corner of 29th and Flora Street[s], standing outside
a bar called “Sarah’s Place.”
Officer Montanez saw [Styles] standing “at the lower step
of the bar,” pointing a silver handgun at a group of females
about twenty (20) feet away. Officer Montanez witnessed
[Styles] fire the gun “toward the waistline and leg area of the
females.” The officer testified that he heard the gunshot, and
saw a “muzzle flash.”
After the gunshot, Officer Montanez immediately parked
and exited his patrol car with his gun drawn. By this time, a
crowd of people were chaotically running toward him. Among
this crowd was [Styles], who was “speed walking” in the officer’s
direction as though “not acknowledging that [the officer] actually
saw him discharge the firearm at the females.” Officer Montanez
ordered [Styles] to the ground, “placed [his] knee … on
[Styles’s] waistline,” reached into [Styles]’s right waistband, and
recovered the gun. The firearm was loaded with six live rounds
in its magazine and one round in the chamber.1 After placing
[Styles] under arrest, Officer Montanez recovered a spent shell
casing outside the bar, at the same location from which [Styles]
fired the gun. Forensic evidence established that the gun had
discharged this shell casing.2
_____________________
1
The parties stipulated that the certified record, from the
Pennsylvania State Police, states that [Styles] had no
license to carry a firearm on October 2, 2009.
2
The Commonwealth presented the testimony of Gamilia
Marshal, who is a Firearms Examiner for the Philadelphia
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Police Department. [Styles] stipulated that Ms. Marshal is
qualified as an expert in “firearms identification,” and she
testified “to a reasonable degree of scientific certainty”
that the shell casing was discharged from the gun
recovered from [Styles].
_____________________
Officer Montanez further testified that the three females, at
whom he saw [Styles] shoot, ran up to him and screamed:
“[h]e just shot at me. He just shot at me.” These females were
Precious Leverette, Shakea Johnston, and Thomika Thomas.
Precious Leverette testified at trial.3 She claimed that she,
her cousin (Thomika Thomas), and her friend (Shakea
Johnston), together went to “Sarah’s Place” on October 2, 2009.
At some point in the evening a fight broke out and the bar’s
owner, “Ms. Sarah,” told everyone to leave … because there was
too much complication in the bar.” While the three females
made their way to the exit, [Styles] began “pushing [Ms.
Thomas], telling her [to] move, bitch, hurry up bitch.” Upon
hearing this, Ms. Leverette confronted [Styles], who “started
pushing” her and calling her a bitch. When Ms. Leverette exited
the bar, and after being pushed by [Styles] “about four times,”
she “grabbed [Styles] and threw him towards a black truck.”
_____________________
3
Ms. Leverette originally lied to the police, telling them
her name was Precious “Taylor.” She claimed she had
given this false name because she lives in the
neighborhood where the incident occurred, and feared the
consequences of cooperating with the police. She feared,
in particular, being labeled a “snitch.”
_____________________
In response to being thrown against the truck, [Styles]
pulled a gun from his waistband, pointed it towards Ms.
Leverette’s feet, and fired. Ms. Leverette testified that the bullet
missed her because Ms. Johnston had grabbed her from behind
and pulled her away. After the gunshot, Ms. Leverette and her
companions ran, “going zigzag” around cars because Ms.
Leverette believed [Styles] would shoot again.
Ms. Leverette’s testimony differs in some respects from
that of Officer Montanez. Officer Montanez testified that [Styles]
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and Ms. Leverette stood approximately twenty (20) feet apart
when [Styles] shot the gun, but Ms. Leverette testified they were
“face to face.” Officer Montanez further testified that he
recovered the gun from [Styles]’s right waistband while [Styles]
was face-first on the ground, but Ms. Leverette testified that
[Styles] had placed the gun on the ground in compliance with
the officer’s orders. In other words, Ms. Leverette claimed that
Officer Montanez did not recover the gun from [Styles]’s
waistband.4
_____________________
4
Furthermore, on cross-examination, Ms. Leverette
testified she did not see Officer Montanez arrive until after
the shot was fired. She also testified that she originally
tried to flee the scene, but was stopped by the police.
_____________________
The defense presented the testimony of Ernestine Savage
and Tujuana Burgess, both of whom claimed to have been at
Sarah’s Place at the time of the shooting. Ms. Savage testified
that an argument broke out between [Styles] and another
female inside Sarah’s Place, which culminated outside the bar.
Looking outside the bar’s front door, Ms. Savage saw “a lot of
females surrounding [Styles] …[.] They were on his back, like
they were jumping on him.” Ms. Savage heard a gunshot during
the brawl, but she did not see [Styles] with a gun.5
_____________________
5
On cross-examination, Ms. Savage testified that she had
known [Styles] for approximately fifteen (15) years and
that she is his “close friend.” However, prior to trial, Ms.
Savage never informed the police or “anyone” else that
she had seen [Styles], her “close friend,” being assaulted
by a group of females just prior to his arrest.
_____________________
Ms. Burgess, an “acquaintance” of [Styles] who frequents
Sarah’s Place, likewise testified that an argument broke out
inside the bar, during which [Styles] asked a female patron “to
leave his cousin’s establishment because he didn’t want no
trouble in there.” Although Ms. Burgess heard [Styles] call the
female a bitch, she never saw [Styles] push or punch this
individual. Rather, when [Styles] stepped outside of the bar, Ms.
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Burgess saw him talking to an unidentified male and “trying to
apologize for calling the girls a bitch.”
According to Ms. Burgess, while [Styles] offered his
apology, “[a] girl came up from behind and hit [him] in his
head.” “[T]hen another girl came, and it was like a free for all, it
was a fight.” While [Styles] was under attack, still another
“young lady,” who “wasn’t in the bar,” pulled out a silver gun.
[Styles] “wrestled” this woman for the gun, and “the next thing
[Ms. Burgess] knew … the gun went off.”6
_____________________
6
Ms. Burgess testified in part: “[Styles] thought quick.
We all could have been dead out there. One of us could
have been killed. I’m glad he got the gun from her. I
really am. Similar to Ms. Savage, Ms. Burgess never
bothered to inform the police that [Styles] had disarmed a
dangerous individual, and that they arrested the wrong
person.
PCRA Court Opinion, 8/11/2014, at 2-6 (record citations omitted) (emphasis
in original).
Styles was charged with three counts of aggravated assault3 and
recklessly endangering another person (REAP),4 and three violations of
VUFA.5 The jury acquitted Styles of aggravated assault and REAP, but
convicted him of two of the VUFA charges (carrying without a license and
carrying on a public street in Philadelphia). Following the jury trial, the trial
____________________________________________
3
18 Pa.C.S. § 2702.
4
18 Pa.C.S. § 2705.
5
18 Pa.C.S. §§ 6105, (persons not to possess firearms), 6106 (firearms not
to be carried without a license), and 6108 (carrying firearms on public
streets or property in Philadelphia).
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court held a bench trial, and convicted Styles of persons not to possess
firearms. The trial court sentenced Styles to an aggregate term of five to
ten years’ incarceration, followed by a term of five years’ probation.6 A
panel of this Court affirmed the judgment of sentence on direct appeal.
Commonwealth v. Styles, 38 A.3d 908 [2878 EDA 2010] (Pa. Super.
2011) (unpublished memorandum).7
On March 2, 2012, Styles filed, pro se, a timely first PCRA petition.
The PCRA court appointed counsel, who filed amended and supplemental
petitions on August 29, 2012, and November 5, 2012, respectively. The
PCRA court held hearings on December 13, 2013, and March 6, 2014. The
court formally dismissed Styles’s petition on March 24, 2014.
Styles appealed and argued the PCRA court erred in denying a new
trial based on after-discovered evidence and ineffective assistance of counsel
for not presenting a duress defense. The panel affirmed in part and vacated
in part. Commonwealth v. Styles, 122 A.3d 453 [876 EDA 2014] (Pa.
Super. 2014) (unpublished memorandum). With respect to the
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6
Specifically, Styles was sentenced to five to ten years’ incarceration on the
charge of persons not to possess firearms, three years’ probation on the
charge of firearms not to be carried without a license, and two years’
probation on the charge of carrying firearms on public streets in
Philadelphia. His terms of probation were to run consecutive to each other,
and consecutive to his term of imprisonment.
7
Styles did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court.
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ineffectiveness issue, which is pertinent to this appeal, Styles claimed trial
counsel should have argued to the jury and requested an instruction on
duress because he maintained he was forced to take the handgun from
Leverette so that she did not shoot anyone else. Id. (unpublished
memorandum at 8-9). The panel determined Styles’s claim was sufficient to
overcome the arguable merit prong of the ineffective assistance of counsel
test. Specifically, the panel stated:
We agree with [Styles] that his claim has arguable merit.6
At trial, Savage testified that some females began fighting inside
the bar, that [Styles] asked them to leave, and that five to six
females “jump[ed],” punched, and kicked [Styles] in the street.
Burgess testified that [Styles] asked a woman who caused a
“commotion” inside the bar to leave. She said that when
[Styles] was outside, a woman punched him in the back of his
head. A fight broke out, and Burgess saw a woman pull a gun,
[Styles] and the woman “tussl[ed],” and the gun went off.
[Styles]’s evidence—if believed—shows he was accosted by an
armed Leverette, and took the firearm in a struggle to prevent
her from shooting him or anyone else. Based on that evidence,
trial counsel could have argued that Leverette, armed with a
handgun, threatened [Styles]; [Styles] reasonably feared for his
safety; and Leverette’s threat was of such a nature that a person
of reasonable firmness in the defendant’s situation would have
been unable to resist it. That is, trial counsel could have argued
that [Styles] possessed the firearm under duress, and requested
jury instruction on duress.
_____________________
6
We reject, however, the conclusions [Styles] reaches
from the jury’s acquittal of aggravated assault and REAP.
[Styles] attempts to argue that the jury’s partial acquittal
shows it found Officer Montanez’s and Precious Leverette’s
testimony not credible, and that [Styles] did not
deliberately fire the weapon into a crowd. [Styles]’s Brief
at 22, 27. Contrary to [Styles]’s argument, “[a partial]
acquittal cannot be interpreted as a specific finding in
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relation to some of the evidence.” Commonwealth v.
Carter, 282 A.2d 375, 376 (Pa. 1971).
_____________________
To reject [Styles]’s claim, the PCRA court improperly
weighed the evidence. The PCRA court posited that [Styles]
could have taken the gun from Leverette, or thrown it onto a
rooftop instead of firing the weapon. Whether [Styles] could
have taken another course of action relevant to duress is for the
fact-finder to resolve. The Commonwealth points to evidence
that [Styles] possessed the firearm prior to discharging toward a
crowd of people. However, the record also contains evidence
that [Styles] wrestled away the firearm from Leverette.
Although it is possible to disbelieve the evidence supporting
duress, determination of the credibility and weight of the
evidence are for the jury to decide. Where the defendant puts
forward evidence to support a duress defense, a trial court
cannot refuse to instruct the jury based on its determination that
the evidence is not credible. See Markman, 916 A.2d at 607-
08 (concluding trial court erred in refusing instruction on duress
where defendant testified that her codefendant battered her and
threatened her with a knife if she did not participate in
kidnapping and murder).
Additionally, the record contains conflicting evidence as to
whether [Styles] recklessly placed himself into a situation where
he would probably be under duress. The Commonwealth’s
witnesses testified that [Styles] initiated the confrontation, while
[Styles]’s witnesses testified that a woman and her companions
did so. The PCRA court accepted as true evidence that [Styles]
was the initial aggressor. See PCRA Court Opinion, 8/11/14, at
10 (“Arguably, the defense of duress was not even available to
[Styles] given his behavior in physically pushing and shoving Ms.
Thompson and Ms. Leverette, and addressing each of them as
‘bitch’.”). “Notably, it is the trier of fact that must determine
whether the defendant acted recklessly.” Markman, 916 A.2d
at 608 (emphasis in original). Therefore, the trier of fact should
have determined whether [Styles] was indeed the initial
aggressor, or whether [Styles]’s witnesses credibly testified that
the victims started the fight. See id. at 609 (concluding trial
court erred in refusing duress instruction where record contained
conflicting evidence on the issue of whether the defendant was
reckless).
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Styles, 122 A.3d 453 [876 EDA 2014] (Pa. Super. 2014) (unpublished
memorandum at 13-15) (record citations omitted; emphasis in original).
Nevertheless, the panel declined to reverse the PCRA court’s order
entirely because the court did not address whether trial counsel had a
reasonable basis for not pursuing a duress defense and whether there was
prejudice resulting from the omission. See id. (unpublished memorandum
at 16-17). Therefore, the panel remanded the matter, directing the PCRA
court to analyze whether Styles met these remaining prongs of the
ineffectiveness test.
Following remand, the PCRA court held a second evidentiary hearing
on August 27, 2015, and counsel submitted briefs on the matter. On
November 16, 2015, the PCRA court again dismissed Styles’s petition,
finding that neither of the two remaining prongs were met. This appeal
followed.
In his sole argument on appeal, Styles contends the PCRA court erred
in finding trial counsel was not ineffective for failing to present a duress
defense and seek a corresponding jury instruction. See Styles’s Brief at 15.
Our review of an order dismissing a PCRA petition is well-established:
we must determine whether the PCRA court’s findings of fact are supported
by the record, and whether its legal conclusions are free from error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference
is granted to the findings of the PCRA court, and these findings will not be
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disturbed unless they have no support in the certified record.”
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation
omitted).
With respect to a claim of ineffective assistance of counsel, we are
guided by the following:
It is well-settled that counsel is presumed effective, and to rebut
that presumption, the PCRA petitioner must demonstrate that
counsel’s performance was deficient and that such deficiency
prejudiced him. Strickland v. Washington, 466 U.S. 668,
687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This Court
has described the Strickland standard as tripartite by dividing
the performance element into two distinct components.
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
(Pa. 1987). Accordingly, to prove trial counsel ineffective, the
petitioner must demonstrate that: (1) the underlying legal issue
has arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) the petitioner was prejudiced by
counsel’s act or omission. Id. A claim of ineffectiveness will be
denied if the petitioner’s evidence fails to satisfy any one of
these prongs.
Regarding the reasonable basis prong of the ineffectiveness test,
we will conclude that counsel’s chosen strategy lacked a
reasonable basis only if the petitioner proves that the alternative
strategy not selected offered a potential for success substantially
greater than the course actually pursued. Commonwealth v.
Koehler, 614 Pa. 159, 36 A.3d 121, 132 (Pa. 2012). To
establish the prejudice prong, the petitioner must demonstrate
that there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel’s
ineffectiveness. Id.
Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013), cert. denied, 135
S. Ct. 50 (U.S. 2014).
Turning to the present matter, Styles states:
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The theory of the defense was that Precious [Leverette]
was lying; that the weapon Mr. Styles possessed when
confronted by the police was hers; and that the weapon was
taken away from her when she pointed it at Mr. Styles while he
was also being attacked by several other women.
Had counsel requested a charge on the duress defense, it
is respectfully submitted the jury could have found that he was
acting under both duress and self-defense. Indeed, that latter
defense had been accepted by the jury as to the assault charges.
The duress instruction and defense would have provided a
complete defense to the weapons charges as well.
Supporting this argument was defense testimony that the
women outside were attacking him and attacking him with a gun
so that he was forced to possess the weapon. The defense
witness testified that Mr. Styles went outside to apologize for his
use of the term “bitch” inside the bar and his potential rough
treatment of one of Ms. [Leverette]’s companions. Despite
presenting this olive branch, Mr. Styles was attacked by several
women, and Ms. [Leverette] pulled out a handgun, which she
had kept concealed. Styles was able to wrestle the gun away
from her and in so doing, the gun fired.
Id. at 15-16.8
Furthermore, with respect to the reasonableness prong of the
ineffectiveness test, Styles asserts the PCRA court erred in determining that
counsel’s actions were not unreasonable based on its conclusion that the
prior Styles panel’s “determination as to arguable merit constituted a novel
interpretation of the statute” and counsel could not have predicted “this
perceived change in the law.” Id. at 17. Relying on Commonwealth v.
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8
In other words, Styles alleges counsel should have argued a duress
defense for the possession crimes and a defense of self-defense for the
aggravated assault and REAP offenses.
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DeMarco, 809 A.2d 256 (Pa. 2002), Styles contends that one need only
look to the plain meaning of the statute to see that the duress defense
applies in the present matter. He states that based on the facts of this case,
a reasonable person would have believed that [Styles] could
have been shot and/or killed if he did not take quick and drastic
action. This factual scenario fits the definition of duress as
explained in DeMarco and contrary to the finding of the lower
Court, this was not a new interpretation which trial [c]ounsel
was not unreasonable for failing to predict.
Indeed at both hearings after [c]ounsel was confronted
with the plain meaning of the statute, he admitted he could have
used that defense because in taking the weapon used to attack
Mr. Styles, this required him to break the law.
He further conceded that there is nothing in the statute
that requires that a person actually has to direct a second
person under threat of some sort of harm to perform an illegal
act.
Id. at 20 (emphasis in original).
Additionally, with regard to the prejudice prong, Styles noted that in
convicting him of VUFA under Section 6105, the trial court did not find the
defense witnesses credible. Id. at 21. He states this is “problematic”
because if he “had been found not guilty of all charges, the [Section] 6105
case was going to be nol prossed” pursuant to a stipulation agreement
between the parties. Id. Styles requests this Court look to the jury’s
verdict and findings, rather than to the trial court’s finding with respect to
the prejudice prong. Id. at 22. He also points to the following to
demonstrate prejudice: (1) Leverette made a statement at trial that she
had the gun during the altercation; (2) Officer Montanez’s testimony was
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rejected and contradicted by the rest of the witnesses; and (3) the jury
acquitted Styles of aggravated assault and REAP. Id. at 22-23.
“Duress is a defense to criminal culpability.” Commonwealth v.
Markman, 916 A.2d 586, 606 (Pa. 2007). The duress defense is codified as
follows:
(a) General rule.--It is a defense that the actor engaged in the
conduct charged to constitute an offense because he was
coerced to do so by the use of, or a threat to use, unlawful force
against his person or the person of another, which a person of
reasonable firmness in his situation would have been unable to
resist.
(b) Exception.--The defense provided by subsection (a) of this
section is unavailable if the actor recklessly placed himself in a
situation in which it was probable that he would be subjected to
duress. The defense is also unavailable if he was negligent in
placing himself in such a situation, whenever negligence suffices
to establish culpability for the offense charged.
18 Pa.C.S. § 309.
In DeMarco, which Styles relies on, the Pennsylvania Supreme Court
stated:
As set forth by the General Assembly in Section 309, in order to
establish the duress defense in this Commonwealth, there must
be evidence that: (1) there was a use of, or threat to use,
unlawful force against the defendant or another person; and (2)
the use of, or threat to use, unlawful force was of such a nature
that a person of reasonable firmness in the defendant’s situation
would have been unable to resist it.
Demarco, 809 A.2d at 261-262.
Here, the PCRA court found the following:
At the PCRA hearing, counsel for [Styles] called trial
counsel to the stand who testified in pertinent part as follows:
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THE COURT: So the question is, [trial counsel],
knowing what you knew prior to trial --
[Trial counsel]: Yes.
THE COURT: -- knowing everything that you knew prior
to trial, both in terms of the duress defense, the law that
supports the duress defense, and the facts of this case,
would you have used the duress defense?
Did you consider using the duress defense? And if not,
why not?
[Trial counsel]: I did not consider using the duress
defense prior to this proceeding [today] because I was
under the belief that the duress defense worked in a
different set of facts than the facts we had in this
particular case.
THE COURT: And could you be more specific about that
belief?
[Trial counsel]: My belief was that a duress defense
could have been brought forth, if, in fact, a person was
coerced into committing a crime against their own will.
For example, a robbery. Someone says, I’m going to
rob this store, you’re going to drive me and take me back,
I don’t want to do it, well, if you don’t do it then I’m going
to do such and such to you. Then that person is forced to
commit a crime with someone else.
I was under the belief [that] that’s what the duress
defense would cover. There are other avenues for which
you could get duress defense, but that’s what I thought.
In the situation with this particular case, where [Styles]
had taken the weapon from someone else, I didn’t see that
as a duress defense because they didn’t force him to take
the weapon in the matter of, we want you to break the
law.
(N.T. 08/27/15, at pp. 11-12).
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Based on the above testimony, and following a
comprehensive review of case law involving the defense of
duress, this Court finds that trial counsel’s belief -- though
perhaps inaccurate in light of the Superior Court’s recent
memorandum opinion Commonwealth v. Styles, supra -- was
nonetheless reasonable. This Court has combed the case law
and has unearthed no prior decision remotely involving the facts
and charges sub judice; rather, virtually every pertinent duress
decision involves facts and/or allegations of another intentionally
and directly ordering the defendant to commit a crime, under the
threat of physical harm. See, e.g., Commonwealth v. Markman,
916 A.2d 586 (Pa. 2007); Commonwealth v. DeMarco, 809 A.2d
256 (Pa. 2002); Commonwealth v. Horton, 644 A.2d 181 (Pa.
Super. 1994). While this Court does not disagree with the
learned analysis contained in the Superior Court’s memorandum
opinion, it also does not find that trial counsel was unreasonable
in failing to predict it. For this reason alone, [Styles]’s claim
fails. See Commonwealth v. Sneed, 899 A.2d at 1076.
Nonetheless, turning to the prejudice prong, and as the
Superior Court expressly observed above, this Court was the fact
finder on the charge of persons not to possess firearms -- i.e.,
the only offense for which [Styles] received a sentence of
incarceration. In that regard, this Court did not find the defense
witnesses, Ernestine Savage and Tujuana Burgess -- both of
whom were friends of [Styles] -- to be credible. Rather, this
Court believed the testimony of Officer Montanez and Ms.
Leverette, and accordingly, found that [Styles] was indeed guilty
of the offense of persons not to possess firearms. A jury
instruction on duress would not have altered this Court’s
credibility determination as fact finder.
PCRA Court Opinion, 11/30/2015, at 2-4 (italics in original).
We agree with the PCRA court’s ultimate decision. We find the court’s
conclusion is tantamount to a determination that it would not have given the
duress defense jury charge if requested by trial counsel because, like
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counsel, it could not find any supporting case law. Indeed, prior to the
previous Styles memorandum,9 no decision, not even tenuously, has
involved a similar set of facts as those before us. Rather, as the PCRA court
opines, the limited precedence has applied the duress defense to facts where
another individual intentionally and directly orders the defendant to commit
a crime, under the threat of physical harm. See Commonwealth v.
Markman, 916 A.2d 586 (Pa. 2007) (defendant entitled to duress
instruction where evidence demonstrated defendant’s paramour repeatedly
beat her, placed a knife to her throat or side, and threatened to kill her if
she did not assist him in kidnapping and killing the victim); Commonwealth
v. DeMarco, 809 A.2d 256 (Pa. 2002) (defendant entitled to duress
instruction where the evidence established he suffered from borderline
mental retardation and was subject to unlawful force and threats by his own
roommate that caused him to perjure himself); Commonwealth v. Horton,
644 A.2d 181 (Pa. Super. 1994) (defendant established ineffective
assistance of counsel for failure to request adequate jury instruction on
duress defense where evidence demonstrated another perpetrator had
pointed his gun in appellant’s direction while issuing a command to take
money from the victim). We note that even though Styles relies on
DeMarco for an elaboration on the duress statute, the facts in DeMarco are
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9
We note that since the first Styles decision, there has been no case
applying the duress defense to a similar set of facts.
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not substantially similar to the facts. In DeMarco, there was an explicit and
direct threat made by another individual to the defendant whereas, in the
present matter, there was no explicit compulsion issued by another
individual, directing Styles to possess the gun.
As such, we emphasize:
Counsel cannot be faulted for failing to advance a novel legal
theory which has never been accepted by the pertinent courts.
See Commonwealth v. Todaro, 549 Pa. 545, 701 A.2d 1343,
1346 (Pa. 1997) (“counsel’s stewardship must be judged under
the existing law at the time of trial and counsel cannot be
deemed ineffective for failing to predict future developments or
changes in the law”).
Commonwealth v. Jones, 811 A.2d 994, 1005 (Pa. 2002).
Accordingly, we find trial counsel’s strategy did not lack a reasonable
basis because Styles has failed to demonstrate that an “alternative strategy
not selected offered a potential for success substantially greater than the
course actually pursued.” Elliott, 80 A.3d at 427.10 Furthermore, because
one can reasonably conclude based on the court’s opinion that it would not
have given the charge, Styles has not demonstrated “there is a reasonable
probability that the outcome of the proceedings would have been different
but for counsel’s ineffectiveness.” Id. Therefore, we conclude Styles has
failed to prove the remaining prongs of the ineffective assistance of counsel
____________________________________________
10
It also merits mention that trial counsel did present a defense of self-
defense, and one can reasonably infer that suggesting an alternate theory
could have had the effect of confusing the jury or detracting from the
credibility of the defense.
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J-S60018-16
test and the PCRA court did not err in dismissing his petition where trial
counsel cannot be considered ineffective for failing to pursue a duress
defense and corresponding instruction.
Order affirmed.
Judge Shogan joins the memorandum.
Judge Strassburger files a dissenting memorandum.
’Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2017
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