Com. v. McPherson, B. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRANDON LAMONT MCPHERSON,
Appellant No. 2224 MDA 2013
Appeal from the PCRA Order December 11, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001609-2007
BEFORE: BOWES, OTT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 21, 2014
Brandon Lamont McPherson appeals from the December 11, 2013
order denying him PCRA relief. We affirm.
On November 14, 2008, Appellant was found guilty by a jury of
attempted murder, aggravated assault, and two counts each of conspiracy
and reckless endangerment. While the trial transcript is not contained in the
certified record, we outline the facts of the crimes as articulated during
In the early evening hours of January 4, 2007, Appellant
McPherson and Angel Serrano decided to shoot rival drug
dealers. That day McPherson and Serrano had met at Brent
respectively, remained at the house while McPherson and
Serrano went to buy marijuana.
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[McPherson and Serrano] returned to the house angry and
upset because rival drug dealers had kicked them off the block
where McPherson and Serrano tried to buy the drugs. They
armed themselves with guns, left the house again, and went to
the corner of Beaver Street and West Andrew Street. McPherson
and Serrano opened fire on the group of males from earlier. At
two cousins were across the street walking home from the store.
A bullet struck B.P. in the back. An ambulance was called to the
scene.
If not for the extreme efforts of the EMT at the scene, and
doctors and medical staff at the hospital, B.P. would have died.
The EMT kept her alive en route to the hospital by sticking his
finger in the bullet hole to stop the bleeding. Bone fragments
and travel of the bullet caused injuries to her ribs, lungs, and
heart. At the hospital, doctors had to shock her heart to get it
beating again.
McPherson and Serrano fled the shooting scene. They ran
cab. McPherson, Serrano, Murray, Owens, and Punchos took a
taxi to a motel where they stayed the night. McPherson and
Serrano bragged and boasted about shooting at the alleged drug
dealers in front of the others. McPherson, Serrano, Owens and
McPherson hid out. Upon returning to Lancaster, Serrano sought
money from his step-father and girlfriend. Serrano left for
Florida; he stayed with another girlfriend, Nicole Fedorek. While
there, Serrano manipulated various women in an effort to obtain
money and build an alibi.
On January 29, 2007, McPherson was detained in Columbia
Borough and subsequently transported to the City of Lancaster
Police Department pursuant to an open arrest warrant. A silver
revolver connected to the B.P. shooting was recovered on
January 30, 2007. Serrano was arrested in Florida on February
14, 2007.
Commonwealth v. McPherson, 4 A.3d 206 (Pa.Super. 2010) (unpublished
memorandum at 1-3) (quoting Trial Court Opinion, 7/2/09, at 1-2).
Following his convictions, Appellant was sentenced to twenty-five to sixty
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years incarceration. On May 26, 2010, we affirmed. Id. On November 10,
2010, Appellant filed a timely PCRA petition seeking reinstatement of his
right to file a petition for allowance of appeal. He was granted the requested
relief, and our Supreme Court denied review on October 25, 2011.
Appellant filed his present PCRA petition on May 2, 2012. Counsel was
appointed and filed an amended petition, which averred that trial counsel
was ineffective for failing to seek a corrupt or polluted source jury instruction
as to Commonwealth witnesses Sheena Owens and Brent Murray. This
matter proceeded to an evidentiary hearing on October 2, 2013, where trial
counsel, Roger C. Renteria, Esquire testified. Mr. Renteria did not recall
whether he had asked for a corrupt source charge for the two witnesses. He
indicated that, in retrospect, it was unlikely that he had requested such an
due to the fact that . . . the Commonwealth had not produced any evidence
crime. N.T. PCRA Hearing, 10/2/13, at 7-8. Mr. Renteria also noted that he
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have been inconsistent with that defense. Id. at 8.
court concluded that trial counsel was not ineffective for failing to request
the charge in question since the instruction was not warranted based upon
the trial evidence and since trial counsel had a strategic basis for his
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[I.] Did trial counsel provide ineffective assistance of counsel
to a degree that so undermined the truth determining process
that no reliable adjudication of guilt or innocence could have
taken placed by failing to request a corrupt and polluted source
jury instruction prejudicing the defendant [a]ffecting the
outcome of his trial.
s brief at 2.
Our standard and scope of review in the present context is as follows:
scope of review is limited to determining whether the PCRA
court's findings are supported by the record and without legal
Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa.
PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 131
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259
(2011) (citation de
novo
Id.
Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa.Super. 2014).
which is subject to the following principles:
[C]ounsel is presumed effective, and the burden of proving
ineffectiveness rests on [the defendant]. The test for counsel
ineffectiveness is, in substance, the same under both the
Pennsylvania and federal Constitutions: it is the performance
and prejudice test set forth in [Strickland v. Washington, 466
U.S. 668 (1984). In Pennsylvania, we have divided the
performance element into two sub-parts dealing with arguable
merit and reasonable strategy. Thus, to prove his trial counsel
was ineffective, [an appellant] must demonstrate that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered prejudice as a result.
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Commonwealth v. Burno, 2014 WL 2722758, 12 (Pa. 2014) (citations
e the [PCRA] petitioner fails to meet any aspect of this test,
Commonwealth v. Henkel, 90 A.3d 16, 30 (Pa.Super.
2014).
polluted source instruction as to Commonwe
source instruction advises the jury that if it finds that a certain witness who
testified against the defendant was an accomplice of the defendant in a
crime for which he is being tried, then the jury should deem that witness a
Commonwealth v. Collins, 957 A.2d 237, 262 (Pa. 2008). Such
evidence to present a jury question with respect to whether the witness is an
Id.; see also Commonwealth v. Hanible, 30 A.3d 426 (Pa.
2011).
As noted by trial counsel and the PCRA court in this case, there was
insufficient evidence to support a finding that either Owens or Murray were
accomplices to Appellant and Serrano. The definition of an accomplice is
contained in 18 Pa.C.S. § 306(c), which states in pertinent part that
facilitating the commission of t
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Pa.C.S. § 306(c)(1)(i- ce liability requires
evidence that the person: (1) intended to aid or promote the substantive
offense; and (2) actively participated in that offense by soliciting, aiding, or
Collins, supra at 263.
Instantly, there was insufficient proof that either witness had such an
involvement in the crime. They did not participate in the initial altercation
and were merely waiting for Appellant and Serrano when the latter two men
attempted to buy drugs. Neither witness encouraged or participated in the
activities of Appellant and Serrano, and there was no proof that they
solicited, aided, or agreed to aid those two actors in shooting at the
recalcitrant drug peddlers. Indeed, there is no indication that the witnesses
even had advance knowledge that Appellant and Serrano would start
randomly shooting at the group of men. They fled with the two shooters,
and one witness hailed a taxicab, as instructed by the perpetrators. These
type of activities are insufficient to warrant any finding that they were
an accomplice . . . nor is one who merely helps an offender try to escape
Collins, supra at 263. Hence,
Owens and Murray were not accomplices.
Additionally, trial counsel articulated that he had a reasonable basis for
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defense. By requesting a corrupt source instruction, counsel would have
been admitting that there was advance planning of the shooting among the
had a strategic basis for not seeking it. See Commonwealth v. Karabin,
426 A.2d 91 (Pa. 1981), and Commonwealth v. Johnson, 437 A.2d 1175
(Pa. 1981), holding that trial counsel had a reasonable strategy for not
asking for the corrupt and polluted source charge where the instruction was
inconsiste
crimes in question.
error, we must affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
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