Com. v. Collins, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD ALLEN COLLINS :
:
Appellant : No. 2043 EDA 2018
Appeal from the PCRA Order Entered June 22, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004658-2015
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED APRIL 22, 2019
Appellant Richard Allen Collins appeals from the order denying his timely
first petition under the Post Conviction Relief Act1 (PCRA) without a hearing.
Appellant argues that the trial court imposed an illegal sentence for his first-
degree murder conviction and trial counsel was ineffective for making
inappropriate remarks during closing arguments. We affirm.
The PCRA court opinion set forth the relevant facts of this appeal as
follows:
Mariah Walton testified that she, Appellant and the murder victim,
Artie Bradley, sold cocaine, crack cocaine and heroin from several
locations in the Borough of Pottstown, Pennsylvania in 2014 and
2015. Walton narrated to the jury while the prosecutors showed
them a sequence of still photographs taken from a video recording
. . . of a customer buying crack cocaine from Appellant, with the
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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assistance of Walton and Bradley, inside an apartment at 826 East
High Street in Pottstown.
Walton was Appellant’s lover; and Appellant and Bradley were
“like brothers.” Bradley’s relationship with the other two changed
for the worse after Appellant and Walton returned from a trip in
early February 2015, to find that “there was $10,000 worth of
heroin money missing.” Appellant confronted Bradley, whose
excuses were unpersuasive. Appellant told Bradley he would have
to pay the money back by way of future drug sales. Although
Appellant tried to appear as if he “let it go” at that, he was still
angry at Bradley because (as Walton explained on cross-
examination) “[t]here’s no way you’re going to work off $10,000.”
At approximately ten minutes before 10:00 p.m. on March 20,
2015, Sergeant Brian Rathgeb of the Pottstown Borough Police
Department and a team of other police officers searched the area
of the 400-500 blocks of Chestnut and Walnut Streets in Pottstown
after being dispatched to investigate reports of gunshots. They
found no victim of a gunshot wound or other evidence of shots
being fired in that area. At approximately 11:30 p.m., Sergeant
Rathgeb was dispatched to the nearby intersection of Beech and
Washington Streets in Pottstown to investigate a call for an
ambulance to treat an unresponsive person. That
person―Bradley―was already dead when the ambulance team
had arrived. Forensic pathologist Gregory McDonald, D.O.,
testified that he performed an autopsy of Bradley’s remains and
determined that Bradley had sustained seven gunshot wounds to
the chest and abdomen, which caused fatal injuries to the lung
and liver, which he agreed were “vital parts of the body.” Mariah
Walton testified,
I was a knowing participant [in] the murder of Artie Bradley.
I knew that [Appellant] had a gun, and I knew he went there
to get in a confrontation, and I not only watched him kill
Artie Bradley, I drove him away from the crime scene and
covered up for him.
At the time Appellant and Walton decided to commit the murder,
they had just learned that Bradley was at the home of a mutual
friend, Troy Holmes, only a few blocks from the apartment
Appellant and Walton rented at 423 East High Street in Pottstown.
Appellant was expressing hostility toward Bradley, calling him
derogatory names. Appellant put a gun in his jacket pocket and
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told Walton he was leaving to confront Bradley and would
telephone her when he was ready for her to pick him up in her
car. Approximately two minutes after Appellant left, Walton drove
her car to a vantage point on Washington Street where she could
see when Appellant and Bradley would leave the home of their
mutual friend, and telephoned Appellant to tell him she was
waiting there. Walton saw Appellant and Bradley leave the home
and cross the street together, then she saw Appellant shoot
Bradley twice, saw Bradley fall, and saw Appellant shoot Bradley
four more times as he lay on the ground. Walton put her car in
gear, Appellant got in, and the two fled to Philadelphia.
PCRA Ct. Op., 8/23/18, at 1-4 (footnotes omitted).
Police arrested Appellant on March 24, 2015. On September 9, 2015,
the Commonwealth charged Appellant with multiple offenses related to the
homicide. The information also included drug offenses stemming from
Appellant’s and Ms. Walton’s sale of crack cocaine to a confidential informant
on January 28, 2015.
On January 6, 2016, Appellant and Ms. Walton filed a motion for a joint
defense agreement, asserting that they wanted to prepare a joint defense
strategy. The trial court granted the motion, and counsel and investigators
for the co-defendants subsequently met and shared information about the
case.
On February 26, 2016, Appellant filed a motion in limine to preclude
testimony and a written statement from Ms. Walton. Appellant asserted that
after the trial court granted the motion for joint defense agreement, Ms.
Walton “provided a written statement incriminating [Appellant] and has
agreed to testify against [Appellant] in exchange for a reduced sentence.”
Mot., 2/26/16, at ¶7. Appellant concluded that he would suffer extreme
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prejudice if Ms. Walton testified against him, and he requested that the court
bar Ms. Walton from testifying at trial. The court denied the motion in limine
and Appellant proceeded to a jury trial.
Before trial commenced, Appellant’s trial counsel requested permission
to put certain information on the record about the defense strategy. The trial
court granted this request and trial counsel conducted the following colloquy
with Appellant:
[Trial Counsel:] [Appellant], I asked the Judge to clear the
courtroom, close the courtroom for a specific reason. I would like
to put [information] on the record about our trial strategy, and
the fact that you and I have spoken about this, okay?
[Appellant:] Yes.
[Trial Counsel:] But before I do, you understand that there may
be some sort of a constitutional right, that you have the right to
have all of this in front of witnesses and have an open courtroom.
Are you okay with the fact that I asked the court to close this
courtroom and exclude the public and the District Attorney’s Office
so that we get an opportunity to directly talk to the Judge without
anybody else hearing what we’re talking about?
[Appellant:] Yes.
[Trial Counsel:] Okay. That being said, is it true that you and I
have had an opportunity to review all of the evidence in this case?
[Appellant:] Yes.
[Trial Counsel:] And the trial strategy that I have I want to talk
about. We are going to proceed with a trial strategy that Mariah
Walton was the shooter in this case?
[Appellant:] Yes.
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[Trial Counsel:] And as a result of proceeding under that strategy,
we are going to have to essentially admit that you were present
at the scene of the murder?
[Appellant:] Yes.
[Trial Counsel:] And that there really, if the jury does not buy the
fact that Mariah Walton was the shooter in this case, that by virtue
of the fact that we’re putting you at the scene, we are essentially
making it that much easier for the jury to potentially convict; do
you understand that?
[Appellant:] Yes.
[Trial Counsel:] All right. But you and I have looked at all other
possible defenses, such as self-defense, diminished capacity. We
have talked about what that means. We have talked about the
lack of . . . intent would reduce it from a first to a third-degree.
We talked about alibi defenses, and just generally reasonable
doubt. We talked about all other defenses; is that accurate?
[Appellant:] Yes.
[Trial Counsel:] And that you agree with me that this is the best
trial strategy, based upon all of the―what I determine to be
overwhelming evidence that puts you at the scene of the murder?
[Appellant:] Yes.
[Trial Counsel:] Okay. And have I forced, threatened or coerced
you in any way to proceeding with this trial strategy?
[Appellant:] No.
[Trial Counsel:] And are you doing this of your own free will?
[Appellant:] Yes.
[Trial Counsel:] And do you believe, based upon all of the evidence
that we have talked about and looked at, that that is the best
possible trial strategy for this case?
[Appellant:] Yes.
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[Trial Counsel:] Are you satisfied with my representation at this
point?
[Appellant:] Yes.
[Trial Counsel:] And do you believe that by proceeding in this
manner, it gives you the best possible defense that you might
have?
[Appellant:] Yes.
[Trial Counsel:] I’m going to ask you one other question about
yesterday’s ruling. You understand that I filed a motion in limine
to preclude [Ms. Walton], but the Judge has ruled against that; do
you understand that?
[Appellant:] Yes.
[Trial Counsel:] I had thought about asking today, as a potential
cautionary instruction or even a new motion, to have the Judge
redact the portion of [Ms. Walton’s] statement pertaining to the
guns. You and I talked about that?
[Appellant:] Yes.
* * *
[Trial Counsel:] And our goal is to say that the reason Mariah
Walton knows about what gun it was is because she was the
shooter?
[Appellant:] Right.
[Trial Counsel:] So by redacting that portion of the statement, it
would actually hurt us at trial.
[Appellant:] Right.
[Trial Counsel:] And are you in agreement with that particular
strategy as well?
[Appellant:] Yes.
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[Trial Counsel:] And, again, has anybody forced, threatened or
coerced you on that issue?
[Appellant:] No.
[Trial Counsel:] Are you satisfied with my decision to proceed with
that strategy?
[Appellant:] Yes.
N.T. Trial, 3/1/16, at 3-8. The jury re-entered and trial began.
Thereafter, trial counsel extensively cross-examined Ms. Walton about
her credibility and her cooperation with the authorities. Specifically, trial
counsel asked Ms. Walton whether she was an honest person, and Ms. Walton
responded that she was not. See id. at 142-43, 158. Trial counsel forced
Ms. Walton to concede that she had lied to police three times before she
provided her final account of what happened on the night of the murder. See
id. at 148, 153-55. Trial counsel also questioned Ms. Walton about the deal
she made with the Commonwealth in exchange for her cooperation against
Appellant. Ms. Walton admitted that the Commonwealth dropped some
charges against her and amended others, thereby eliminating the possibility
that she would receive a sentence of life imprisonment. 2 See id. at 146-47,
156.
Trial counsel inquired about Ms. Walton’s testimony that Appellant killed
the victim over an unpaid drug debt. See id. at 160-62. Trial counsel forced
Ms. Walton to acknowledge that Appellant would not be paid if he murdered
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2Ms. Walton emphasized that the Commonwealth originally charged her with
conspiracy to commit first-degree murder, but amended the charge to
conspiracy to commit third-degree murder.
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the victim, and Appellant had confronted other individuals about unpaid debts
in the past without killing them. Id. Further, Ms. Walton testified that she
sold drugs, possessed firearms, and had a reputation for violence at the time
of the murder.3 See id. at 149-51. Ms. Walton also confirmed that she was
the only eyewitness to the murder. See id. at 147.
During his closing argument, trial counsel vigorously argued that the
Commonwealth failed to prove that Appellant was the shooter:
During my cross-examination, did I ever once suggest that my
client, [Appellant], was not involved in a drug trade? Did I ever
once suggest my client, as a result of that, didn’t have access to
guns?
Now, again, not our burden to prove any evidence, but through
my cross-examination questions, I thought it was pretty clear,
[Appellant] is a drug dealer. [Appellant] had guns. [Appellant] is
a bad guy. I don’t like [Appellant]. But you know what? Because
I don’t like [Appellant], and because [Appellant] is a drug dealer,
and [Appellant] had access to guns doesn’t make him a murderer.
It doesn’t make the fact that he shot and killed Artie Bradley
anymore of a fact.
N.T. Trial, 3/3/16, at 162.
Following trial, the jury convicted Appellant of two counts of criminal
conspiracy and one count each of first-degree murder and possession of a
controlled substance with intent to deliver (PWID).4 On May 31, 2016, the
trial court sentenced Appellant to life imprisonment for the first-degree murder
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3 Trial counsel did not attempt to cast doubt on Ms. Walton’s comments about
her drug dealing activities, and he did not attempt to distance Appellant from
the drug dealing activities. See N.T. Trial, 3/1/16, at 149.
4 18 Pa.C.S. §§ 903, 2502(a), and 35 P.S. § 780-113(a)(30), respectively.
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conviction, plus a consecutive term of one and one-half to five years’
imprisonment for the PWID conviction. This Court affirmed the judgement of
sentence on June 28, 2017, and Appellant did not seek further review with the
Pennsylvania Supreme Court. See Commonwealth v. Collins, 3249 EDA
2016 (Pa. Super. filed June 28, 2017) (unpublished mem.).
On September 8, 2017, Appellant filed a pro se motion to vacate or
correct an illegal sentence. The court treated Appellant’s filing as a pro se
PCRA petition and appointed PCRA counsel. PCRA counsel filed an amended
PCRA petition on Appellant’s behalf on February 9, 2018. In the amended
petition, Appellant argued that the trial court imposed an illegal sentence for
the first-degree murder conviction. Appellant claimed that his “life sentence
is not a sentence imposed for a definite time and does not have a minimum
and maximum release date. . . .” Am. PCRA Pet., 2/9/18, at 5. Appellant also
asserted that trial counsel was ineffective for making derogatory comments
about Appellant during his closing argument.
On May 23, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss the petition without a hearing. 5 The court determined that
Appellant received a legal sentence for the first-degree murder conviction.
The court also found that trial counsel’s statements during closing argument
constituted “sound trial strategy.” Rule 907 Notice, 5/23/18, at 15. The
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5 The Court of Common Pleas incorrectly docketed the Rule 907 notice as
“Order Denying Amended/Petition for [PCRA] Relief Without A Hearing.”
Docket Entry, 5/23/18.
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parties did not respond to the Rule 907 notice, and the court denied
Appellant’s PCRA petition by order dated June 22, 2018.
Appellant timely filed a notice of appeal on July 17, 2018, and the PCRA
court did not order him to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On August 23, 2018, the PCRA court filed a Pa.R.A.P.
1925(a) opinion, relying on the analysis set forth in the Rule 907 notice.
Appellant now raises two issues for our review:
1. Whether Appellant’s sentence of life imprisonment without a
minimum parole date is an illegal sentence under Pennsylvania
law that must be vacated.
2. Whether Appellant’s trial counsel was ineffective for making
repeated derogatory, incriminating statements toward and about
Appellant throughout his closing statement.
Appellant’s Brief at 4 (full capitalization omitted).
In his first issue, Appellant acknowledges that a trial court can sentence
a person convicted of first-degree murder to “a term of life imprisonment.”
Id. at 10 (quoting 18 Pa.C.S. § 1102(a)(1)). Appellant argues, however, that
the relevant statutes do not state that “‘a term of life imprisonment’ is a term
without a minimum sentence date, a mandatory minimum date, or that a
convicted defendant is ineligible for parole at a minimum sentence date.” Id.
at 10-11. Appellant also cites the Sentencing Code for the proposition that a
trial court “shall impose a minimum sentence of confinement which shall not
exceed one-half of the maximum sentence imposed.” Id. at 11 (quoting 42
Pa.C.S. § 9756(b)).
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Based upon the foregoing, Appellant insists that the trial court needed
“to impose a minimum sentence of confinement pursuant to [Section]
9756(b),” whereby Appellant would be eligible for parole. Id. at 12. “As there
is no statutory authorization for Appellant to be sentenced without a minimum
sentence, Appellant’s sentence is illegal.” Id. at 14. Appellant concludes that
this Court must vacate the illegal sentence for his first-degree murder
conviction. Id. at 16.
Our review of the denial of a PCRA petition is limited to the examination
of “whether the PCRA court’s determination is supported by the record and
free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.
Super. 2014) (quotation marks and citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.
2014) (citation omitted). We review the PCRA court’s legal conclusions de
novo. See Miller, 102 A.3d at 992.
“The PCRA provides the sole means for obtaining collateral review of a
judgment of sentence. A court may entertain a challenge to the legality of
the sentence so long as the court has jurisdiction to hear the claim.”
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (citations,
quotation marks, and brackets omitted). “A claim that implicates the
fundamental legal authority of the court to impose a particular sentence
constitutes a challenge to the legality of the sentence. If no statutory
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authorization exists for a particular sentence, that sentence is illegal and
subject to correction.” Id. at 363 (citations and quotation marks omitted).
The Crimes Code governs first-degree murder sentences as follows:
§1102. Sentence for murder, murder of unborn child and
murder of law enforcement officer
(a) First degree.―
(1) Except as provided under section 1102.1 (relating
to sentence of persons under the age of 18 for
murder, murder of an unborn child and murder of a
law enforcement officer), a person who has been
convicted of a murder of the first degree or of murder
of a law enforcement officer of the first degree shall
be sentenced to death or to a term of life
imprisonment in accordance with 42 Pa.C.S. § 9711
(relating to sentencing procedure for murder of the
first degree).
18 Pa.C.S. § 1102(a)(1) (emphasis added).
When analyzing prior versions of the statutes governing sentences for
first-degree murder, this Court has observed that
the repealed 18 P.S. § 4701 and the current 18 Pa.C.S.A. § 1102[6]
both mandate that a trial court not imposing the death penalty
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6 Section 4701 provided:
Whoever is convicted of the crime of murder of the first degree is
guilty of a felony and shall be sentenced to suffer death in the
manner provided by law, or to undergo imprisonment for life at
the discretion of the jury trying the case, which shall, in the
manner hereinafter provided, fix the penalty[.]
18 P.S. § 4701 (repealed 1972). The prior version of Section 1102 stated:
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sentence a person convicted of first-degree murder to life
imprisonment. Under the clear wording of the statute, the
sentencing court may not sentence a first-degree murderer to a
lesser term. Accordingly, we . . . conclude that the absence of the
magic words “not less than” or “at least” does not render [a
sentence of life imprisonment for first-degree murder] something
other than a mandatory minimum.
Commonwealth v. Yount, 615 A.2d 1316, 1321 (Pa. Super. 1992); accord
Hudson v. Pa. Bd. of Prob. & Parole, ___ A.3d ___, ___, 2019 WL
1339492, at *4-*5 (Pa. Mar. 26, 2019) (stating that Section 9756 was never
intended specifically to create a personal right to be reviewed for parole, and
the Board lacks the power to parole an inmate serving a mandatory life
sentence for second-degree murder).
Instantly, the Crimes Code requires a term of life imprisonment for a
person convicted of first-degree murder. See 18 Pa.C.S. § 1102(a)(1). We
agree with this Court’s interpretation of a substantially similar version of
Section 1102 in Yount, which concluded that a term of life imprisonment
without a minimum term is a legal sentence for individuals convicted of first-
degree murder. See Yount, 615 A.2d at 1321; accord Hudson, 2019 WL
1339492, at *4-*5. Therefore, statutory authorization exists for Appellant’s
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A person who has been convicted of a murder of the first degree
shall be sentenced to death or to a term of life imprisonment
in accordance with section 1311(d) [now 42 Pa.C.S.A. § 9711] of
this title (relating to sentencing procedure for murder of the first
degree).
18 Pa.C.S. § 1102 (amended 2012) (emphasis added).
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sentence, and the PCRA court’s determination is free of legal error. See
Miller, 102 A.3d at 992; Infante, 63 A.3d at 363.
In his second issue, Appellant cites the previously quoted portion of trial
counsel’s closing argument, contending that trial counsel made “repeated,
derogatory, incriminating statements” about Appellant and Appellant’s
involvement in the drug trade. Appellant’s Brief at 17. Appellant asserts that
trial counsel did not inform Appellant “about his intention to make such
statements that would concede his guilt on certain charges and demean his
character.” Id. Appellant claims that trial counsel did not have a reasonable
strategic basis to make the comments at issue. Id. Moreover, the comments
resulted in prejudice to Appellant, because trial counsel’s characterization of
Appellant “signaled to the jury that Appellant was capable and willing to
commit murder.” Id.Appellant also relies on McCoy v. Louisiana, 138 S. Ct. 1500 (2018),
for the proposition that “a defendant has the right under the Sixth Amendment
of the United States Constitution to insist that his counsel refrain from
admitting his guilt, even if his counsel had a reasonable strategy for doing so.”
Id. at 19. Pursuant to McCoy, Appellant alleges that trial counsel’s comments
need not be reviewed under the traditional three-prong test for
ineffectiveness. Id. “Rather, a violation of a defendant’s autonomous rights
occurs under the Sixth Amendment and is therefore a ‘structural error’ not
subject to harmless error review.” Id. at 19-20. Appellant concludes that
“not only was [trial] counsel ineffective in making the statements to the jury,
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[trial] counsel also violated Appellant’s Sixth Amendment rights by making
such statements, perpetuating his ineffectiveness.” Id. at 21.
We presume that the petitioner’s counsel was effective.
Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish
a claim of ineffectiveness, a petitioner “must show, by a preponderance of the
evidence, ineffective assistance 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.” Commonwealth
v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). A
petitioner must establish (1) that the underlying claim has arguable merit; (2)
that counsel lacked a reasonable basis for his action or inaction; and (3) but
for the act or omission in question, the outcome of the proceedings would
have been different. Commonwealth v. Washington, 927 A.2d 586, 594
(Pa. 2007). “A claim of ineffectiveness may be denied by a showing that the
petitioner’s evidence fails to meet any of these prongs.” Id. (citation omitted).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit[.] Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Smith, 167 A.3d 782, 788 (Pa. Super. 2017) (citations
and quotation marks omitted).
“With regard to the second, reasonable basis prong, we do not question
whether there were other more logical courses of action which counsel could
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have pursued; rather, we must examine whether counsel’s decisions had any
reasonable basis.” Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.
2011) (citation and quotation marks omitted). “We will conclude that
counsel’s chosen strategy lacked a reasonable basis only if [the petitioner]
proves that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.” Id. (citation and
quotation marks omitted); see also Commonwealth v. Rega, 933 A.2d 997,
1018-19 (Pa. 2007) (stating a petitioner “must prove that the strategy
employed by trial counsel “was so unreasonable that no competent lawyer
would have chosen that course of conduct” (citation omitted)).
In McCoy, the attorney conceded that his client committed three
murders during the guilt phase of a capital trial. The attorney’s concession
came despite the defendant “vociferously insist[ing] that he did not engage in
the charged acts and adamantly object[ing] to any admission of guilt.”
McCoy, 138 S. Ct. at 1505. Consequently, the United States Supreme Court
held “that a defendant has the right to insist that counsel refrain from
admitting guilt, even when counsel’s experienced-based view is that
confessing guilt offers the defendant the best chance to avoid the death
penalty.” Id.Instantly, the PCRA court provided context for trial counsel’s closing
argument:
[Appellant] was accused of conspiring with [Walton] to murder his
former partner in drug dealing, Artie Bradley, because he thought
Bradley had cheated him of proceeds from their drug sales. The
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evidence against [Appellant] included a similar act in which he and
Walton had worked together to assault another man, Herbierto
Delmorel, who had stolen drugs belonging to the [Appellant and]
Bradley[’s] partnership. The evidence also included testimony
that [Appellant] and Walton had purchased a firearm in
preparation for their plan to kill Bradley, and evidence that
[Appellant] possessed other firearms was relevant and admissible
to [a] charge of unlawful possession of a firearm.
Rule 907 Notice at 13 (record citations omitted).
In light of this record, the PCRA court concluded that trial counsel had a
reasonable basis for commenting on Appellant’s character during his closing
argument:
[Trial counsel’s] closing remarks were sound trial strategy. He
anticipated the risk that the jurors would be inclined to conclude
[Appellant] murdered Bradley because of his character, as
indicated by his prior assaults and possession of guns. Because
the evidence left him unable to portray [Appellant] as a virtuous
man, [trial counsel] took the approach of reminding the jurors that
they were not to consider character when deliberating. Because
of the direct and indisputable evidence that [Appellant] was guilty
of the drug and firearms charges, [trial counsel] conceded guilt as
to those; but not the murder, which was proven by circumstantial
evidence and the testimony of Walton, who pled guilty and knew
her testimony would be considered when she was sentenced.
[Trial counsel’s] decision to do so was tactically sound because it
maximized the credibility he and his client could preserve with the
jurors and prompted them to contrast the strength of the
Commonwealth’s evidence of the lesser charges with the strength
of the evidence of the murder charge.
Id. at 15-16. Following our review of the record and Appellant’s arguments,
we discern no basis to disturb the PCRA court’s determination.
To the extent Appellant relies on McCoy, that case is distinguishable.
Whereas the defendant in McCoy “adamantly objected” to his attorney’s
actions, Appellant consulted with trial counsel and agreed upon the best
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strategy for his case. Appellant’s on-the-record colloquy demonstrated that
he was aware of other possible defenses, but he opted to have trial counsel
do everything possible to convince the jury that Ms. Walton actually shot the
victim. See N.T. Trial, 3/1/16, at 3-8. The contested remarks in trial counsel’s
closing argument amounted to a final effort to help advance the chosen
defense strategy.
In light of the relevant case law and applicable standard of review, we
conclude that the PCRA court properly determined that trial counsel had a
reasonable basis for his actions. See Chmiel, 30 A.3d at 1127; Miller, 102
A.3d at 992. Therefore, we conclude that the PCRA court did not err in denying
Appellant’s petition.7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/19
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7 On March 1, 2019, Appellant filed a pro se motion to strike the
Commonwealth’s brief. Because Appellant has counsel of record, we direct
this Court’s Prothonotary to forward the pro se motion to counsel. See
Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (reiterating “that
the proper response to any pro se pleading is to refer the pleading to counsel,
and to take no further action on the pro se pleading unless counsel forwards
a motion”).
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