Com. v. Wright, D. ( 2016 )

J-S44035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DARIN WRIGHT, :
:
Appellant : No. 1723 EDA 2015
Appeal from the PCRA Order May 11, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0009147-2008
BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 28, 2016
Darin Wright (“Wright”) appeals from the Order denying his first
Petition filed pursuant to the Post Conviction Relief Act.1 We affirm.
The PCRA court set forth the relevant factual and procedural history in
its Opinion, which we adopt for the purpose of this appeal. See PCRA Court
Opinion, 7/10/15, at 1-3.2
On appeal, Wright raises the following issues for our review:
1. Was trial counsel ineffective because he failed to object – on
due process grounds – to the [trial] court’s initial and final
instructions on demeanor evidence?
1
See 42 Pa.C.S.A. §§ 9541-9546.
2
In its Opinion, the PCRA court incorporated the trial court’s recitation of
facts, wherein the trial court mistakenly indicated that “Defendant” was
pronounced dead at the scene. See PCRA Court Opinion, 7/10/15, at 2
(citing Trial Court Opinion, 4/19/12, at 2-3). We assume that the trial court
intended to indicate that “the victim” was pronounced dead at the scene.
J-S44035-16
2. Was direct [appeal] counsel ineffective because he waived
[Wright’s] claim that the prosecutor went outside the record
in his summation?
3. Was trial counsel ineffective because he called Dr. Donald
Tibbs as an expert in the area of hip-hop [music] to try to
interpret the lyrics in the video made by [Wright]?
Brief for Appellant at 5 (capitalization omitted).
In his first issue, Wright points to the trial court’s jury instruction on
assessing the credibility of witnesses, and contends that “[n]o standards
were imparted to the jury on how to judge ‘a convincing manner,’ or how to
judge a witness’s ‘look,’ or speech, or how to assess credibility from
demeanor.” Id. at 8. Wright asserts that his “trial counsel had no strategic
reason for not objecting – on due process grounds – to these credibility
factors in the court’s charge.” Id. Wright claims that the jury instruction
violated his federal constitutional rights because it instructed the jury to
draw inferences of credibility from factors that do not support an inference of
credibility. Id. at 12. Wright argues that the trial court’s jury instruction
“throws irrational factors into the decision making process.” Id. at 14.
According to Wright, how the witness looked or acted, or the manner of
speech used by the witness, has no bearing on the witness’s credibility. Id.
Wright asserts that, because the effect of the trial court’s error cannot be
assessed, it constitutes a structural error from which prejudice must be
presumed. Id. at 16.
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J-S44035-16
The PCRA court set forth the relevant law, addressed Wright’s first
issue, and determined that it lacks merit. See PCRA Court Opinion,
7/10/15, at 9. We agree with the reasoning of the PCRA court and affirm on
this basis as to Wright’s first issue. See id.
In his second issue, Wright contends that, although his direct appeal
counsel raised the claim that the trial court erred by denying Wright’s Motion
for a mistrial following the prosecutor’s reference to evidence outside the
record during his summation, the claim was deemed waived because direct
appeal counsel provided no analysis, citation to the record, or citation to
legal authority.3 Brief for Appellant at 17. Wright asserts that this claim
“was meritorious to the point that it could have won a new trial,” and that
direct appeal counsel had no strategic reason for waiving the claim. Id.
Wright claims that his trial counsel’s approval of a curative instruction did
not result in waiver of his Motion for mistrial based on the prosecutor’s
comments. Id. at 18. Wright argues that the Commonwealth cannot show
that the prosecutor’s comments “in no way contributed to the verdict.” Id.
at 22. Wright contends that direct appeal counsel was ineffective for failing
to properly brief the issue. Id. at 24.
The PCRA court set forth the relevant law, addressed Wright’s second
issue, and determined that it lacks merit. See PCRA Court Opinion,
3
In his summation to the jury, the prosecutor argued that Wright’s intent to
kill the victim could be inferred from Wright’s statement that the victim
“caught me slipping, he caught me sleeping.” PCRA Court Opinion, 7/10/15,
at 7 (citing N.T., 9/12/11, at 81).
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J-S44035-16
7/10/15, at 7-9; see also Commonwealth v. Wright, 68 A.3d 363 (Pa.
Super. 2013) (unpublished memorandum at 9) (wherein a panel of this
Court noted the “overwhelming evidence of [Wright’s] guilt as established by
eyewitness testimony at trial”). We agree with the reasoning of the PCRA
court and affirm on this basis as to Wright’s second issue. See PCRA Court
Opinion, 7/10/15, at 7-9.
In his final issue, Wright contends that trial counsel’s decision to call
Dr. Donald Tibbs (“Dr. Tibbs”) as an expert in hip-hop music, to provide
opinion testimony regarding the meaning of the lyrics that Wright had used
in his music video, constitutes a “misguided trial strategy [which] destroyed
[Wright’s] presumption of innocence and his character.” Brief for Appellant
at 28. Wright asserts that Dr. Tibbs did not specify as to what degree of
certainty he held his opinions, and his opinions were not based on “scientific
acceptability in [] published, peer[-]reviewed literature.” Id. at 25. Wright
claims that, at the conclusion of Dr. Tibbs’s testimony, “the jury was left
with [Dr. Tibbs’s] essential position[,] which was [that Wright was] rapping
about the shooting of a driver of a car with a 9[-]millimeter [gun] in broad
daylight … [and it] was just a vast and terrible coincidence in that these
facts matched the facts of the murder charged to [Wright].” Id. at 26-27.
Wright argues that “[t]rial counsel apparently realized his dire mistake[,]
and did not mention Dr. Tibbs in his closing address to the jury.” Id. at 27.
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J-S44035-16
Wright contends that, as a result of trial counsel’s decision to present the
testimony of Dr. Tibbs, Wright was deprived of a fair trial. Id. at 30.
The PCRA court set forth the relevant law, addressed Wright’s third
issue, and determined that it lacks merit. See PCRA Court Opinion,
7/10/15, at 4-6; see also Commonwealth v. Talbert, 129 A.3d 536, 541
(Pa. Super. 2015) (concluding that the defendant’s rap music video
describing the murder at issue was relevant and admissible). We agree with
the reasoning of the PCRA court and affirm on this basis as to Wright’s third
issue. See PCRA Court Opinion, 7/10/15, at 4-6.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2016
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Circulated 05/27/2016 02:59 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEAL TH OF CP-5 l-CR-000914 7-2008
PENNSYLVANIA CP-51-CR-0009147-2008 Comm. v, Wright, Darin K.
Opinior.
FILED
v.
JUL 1 0 7.015
DARIN WRIGHT
11111111111111111·111\ 1111
7317963261
PostTrial UnM:
OPINION
BRONSON,J. July 10, 2015
I. PROCEDURALBACKGROUND
;,«.of>=- '
685 A.2d 1000, 1003 (Pa. Super. 1996)
(citing Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super. 1995)). The reviewing court "will
not disturb findings that are supported by the record." Id.Here, defendant's claims pertain to the allegedineffective assistance of trial and appellate
counsel. Under Pennsylvania law, counsel is presumed effective and the burden to prove
otherwise lies with the petitioner. Commonwealth v. Basemore, 7 44 A.2d 717, 728 (Pa. 2000),
n.10 (citing Commonwealth v. Copenhefer, 719 A.2d 242, 250 (Pa. 1998)). To obtain collateral
.;,....;
relief based on the ineffective assistance of counsel, ap,~titioner must show that counsel's
representation fell below accepted standards of advocacy and that as a result thereof, the
petitioner was prejudiced. Strickland v. Washington, 466 U.S. 668, 694 (1984). In
Pennsylvania, the Strickland standard is interpreted as requiring proof that: (1) the claim
underlying the ineffectiveness claim had arguable meri( (2) counsel's actions lacked any
reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice.
Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth v. Pierce, 527 A.2d
973, 974-75 (Pa. 1987). To satisfy the third prong of the test, the petitioner must prove that, but
for counsel's error, there is a reasonable probability that the outcome of the proceeding would
have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa. 2006) ( citing
Strickland, 466 U.S. at 694). lfthe PCRA court determines that any one of the three prongs
cannot be met, then the court need not hold an evidentiary hearing as such a hearing would serve
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no purpose. Commonwealth v. Jones, 942A.2d 903, 906 (Pa. Super. 2008), app. denied, 956
,,.,;;~·:'.
A.2d 433 (Pa. 2008).
A. Testimony of Dr. Donald Tibbs
Defendant first asserts that trial counsel was ineffective for calling Dr. Donald Tibbs to
testify as an expert in the area of Hip-Hopmusic to interpret the lyrics of a YouTube video of
defendant rapping after White's murder. It was the Commonwealth's position that this rap
described White's murder and was, in effect, an admission by defendant that he shot and killed
White. N.T. 9/7/11 at 233-239. The Commonwealth called Troy Burton, an eyewitness to the
murder who grew up in defendant's community, was f~iliar with all the parties involved, and
was familiar with the vernacular used by defendant in the video, in order to explain the meaning
of the lyrics. N.T. 9/7/11 at 240-242; 253-271. The defendant called Dr. Tibbs to dispute
Burton's interpretation of the lyrics, and to refute the Commonwealth's contention that the video
was an admission of guilt by defendant.
.. ..,,.....,
Dr. Tibbs was an associate Professor of Law at the Earle Mack School of Law at Drexel
University, and a scholar in Hip-Hop and rap music. He had published articles and participated
in conferences concerning Hip-Hop, had lectured on Hip-Hop for approximately two-and-a-half
years prior to trial, and was scheduled to teach a class at Drexel University entitled "Hip-Hop
and the Law." N.T. 9/9/11 at 110-117.2 Defendant now claims that that trial counsel was
ineffective for calling Dr. Tibbs as a witness for two reasons: (1) Dr. Tibb's interpretations of
the video were not admissible under the rules of evidence; and (2) the introduction of Tibb's
testimony regarding rap permitted the Co~monwealth to link defendant to "a culture so far out
2
The Notes of Testimony for September 9, 2011 were incorrectly dated September 9, 2010. These notes are cited
herein using the correct date of September 9, 2011.
. __ ,~
4
of the pale [ of a] reasonable society as to shock the conscience of the jury" and thus destroy
defendant's character. Statement of Errors at pp. 2-4 .. .Both claims are without merit.
1. Admissibility of Dr. Tibb's Testimony
Defendant asserts that Dr. Tibbs' testimony was inadmissible as he "never specified to
what degree of certainty he held [his] opinions" and did not "establish that his opinion was based
on scientific acceptability in the published; peer reviewed literature ... " Statement of Errors at p.
2. This argument is frivolous. Dr. Tibb's expert testimony was offered by defendant in order to
support his argument that the rap video was not a confession to the murder. The rules governing
the admissibility of evidence protect the opponent of the evidence from having the factfinder
consider it if it is not admissible. Assuming arguendo.that the evidence was not admissible, and
yet was helpful to the defense, defense counsel could not have been constitutionally ineffective
for proffering such evidence. If, of course, the evidence were not helpful to the defense, then it
might have been error for defense counsel to present it whether or not the evidence was
admissible under the rules. That issue is addressed i11 defendant's next argument, below.
2. Linking Defendant to Rap Culture and Destroying his Character
Defendant also asserts that trial counsel was ineffective for introducing Dr. Tibbs'
testimony as it linked defendant to "a culture so far out of the pale of reasonable society as to
shock the conscience," and that this testimony prejudiced defendant by destroying his character.
Statement of Errors at p. 3. This argument is refuted by the record.
The YouTube video introduced by the Commonwealth was arguably highly incriminating
of defendant. In the video, as interpreted by the Commonwealth's witness, defendant spoke,
among other things, about a conflict between two ne~ghborhoods in which defendant loaded up a
nine-millimeter handgun and shot someone who was unarmed in broad daylight, and who was
5
driving a car. N.T. 9/7/11 at 240-242; 253-271. All of this matched the Commonwealth's
evidence of the murder here at issue. To refute that compelling evidence, the defense called
Professor Tibbs, who challenged the Commonwealth's interpretation of the lyrics. Dr. Tibbs
testified that defendant's rap "is normative to what we call gangsta rap music and that the lyrics
themselves contain more generalities than they do specificities and as a result of that it's difficult
... to make a positive statement of proof that he is actually talking about the facts that are alleged
in this case." N.T. 9/9/11 at 120. Dr. Tibbs further testified that gangsta rap musicians include
such individuals as Ice Cube, Jay-Z, and Kanye West, artists well known for their music, which
include violent lyrics that are not indicative ofreal crimes of violence. N.T. 9/9/11 at 122-130.
Dr. Tibbs also testified that, based on the video and lyrics, that defendant mixed "so many
metaphors that it's completely difficult to discern when he's talking about doing something
really and when he's talking about it in a metaphorical.sense," N.T. 9/9/11 at 163. Accordingly,
trial counsel sought to establish through Dr. Tibbs' testimony that defendant was not rapping
about the facts of this case, but was instead attempting to "get discovered so that [defendant
could] make it into the big time ... " and that defendant's song "sounds like a very sort of generic
versionofgangstarap." N.T. 9/9/11 at 131, 167.
Without the testimony of Dr. Tibbs, the defense would have left unchallenged the
Commonwealth's interpretation of the rap as being tantamount to a video confession. Dr. Tibbs,
who was eminently qualified, directly contradicted that evidence. Accordingly, the record
demonstrates that trial counsel had a reasonable basis for calling Dr. Tibbs' as a witness.
Counsel, therefore, could not have been ineffective for presenting this testimony. See
Commonwealth v. Collins, 957 A.2d 237, 250 (Pa. 2008) (counsel not ineffective as he had a
reasonable basis for deciding which witnesses to call at trial).
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B. Prosecutor's Summation
Defendant next asserts that appellate counsel was ineffective "because he waived
[defendant's] claim that the prosecutor went outside the record in his summation in trying to
convict him." Statement of Errors at pp. 4-5. This claim is without merit.
It is well-established that an assistant district attorney's comments during closing
argument do not require a new trial unlessthe "unavoidable effect" of the comments "would be
to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that
they could not weigh the evidence and render a true verdict." Commonwealth v. Linder, 425
A.2d 1126, 1128 (Pa. Super. 1981) (quoting Commonwealth v. Stoltzfus, 337 A.2d 873, 882 (Pa.
· ....
1975)). Additionally, "[a] mistrial is not necessary where cautionary instructions are adequate to
overcome prejudice." Commonwealth v. Spatz, 716 A.2d 580, 593 (Pa. 1998).
At trial, defendant moved for a mistrial because of the following argument by the
Commonwealth:
[Assistant District Attorney]: The third waywe know that there was intent to
kill, his own words before the shooting, he caught me slipping, he caught me
sleeping. He's unarmed. Remember Darin Wright is unarmed when the conflict
starts. He says to anybody that will hear, he caught me slipping. When he comes
back, I'm going to hit him. When he comes back, I'm going to kill him. That's
the third way we know he possesses specific intent to kill.
N.T. 9/12/2011 at 81 (emphasis added). At the conclusion of closing arguments, and outside the
presence of the jury, defense counsel objected to the specific portion of the Commonwealth's
argument in which defendant was quoted as having said "he caught me slipping." N.T.
9/12/2011 at 123-124. As defense counsel correctly pointed out, the reference to defendant
saying that Mr. White "caught [him] slippi.ng" came from a portion of Dwayne Williams' s
statement that was not in evidence. N.T. 9/12/2011 at 123-124. As such, the Court sustained the
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objection and gave the following instruction immediately after the jury returned to the
courtroom:
Before I get to the charge I have a preliminary matter that I need to raise with you,
ladies and gentlemen. During his closing the Assistant District Attorney Mr.
O'Malley made reference to an alleged statement of defendant Wright that, quote,
he could have caught me slipping, close quote. There was no evidence as to that
and I direct you folks to disregard the portion of Mr. O'Malley's argument
regarding that alleged statement.
N.T. 9/12/2011 at 128.
Defendant sought review of the Court's denialof his motion for mistrial before the
Superior Court, which held that the claim was waived due to appellate counsel's failure to
provide analysis or citations to the record or legal authority to support this claim. Superior Court
Opinion, filed February 15, 2013, pg. 2 n. 4. Defendant now claims that appellate counsel was
ineffective for failing to properly present this issue t~ the Superior Court.
Defendant's claim of appellate counsel ineffectiveness should be rejected because the
claim that counsel waived is clearly without merit. Because the Court sustained defendant's
objection and promptly gave a curative instruction, the Court properly denied defendant's motion
for a mistrial. The reference to defendant complainii,:iK.that
he was caught "slipping," a reference
that defense counsel believed to mean "unarmed," N.T. 9/12/2011 at 125, was a reference that
the jury was unlikely to comprehend. Additionally, the reference was part of the
Commonwealth's argument regarding defendant's specific intent to kill White, which was
rejected by the jury as defendant was not convicted of first-degree murder. Because the Court
not only instructed the jury to disregard the offending comment, but also advised it that the
comment was not based on any evidence, the momentary reference to defendant "slipping" could
not conceivably have prejudiced defendant to the point that it deprived him of a fair trial. Since
appellate counsel could not have been ineffective for failing to properly present a meritless claim
8
to the Superior Court, no relief is due. Se:_ Commonwe~lth v. Tedford, 960 A.2d 1, 33 (Pa. 2008)
(appellate counsel not ineffective for declining to challenge prosecutor statements in closing
arguments as defendant was not prejudiced by the statements).
C. Court's Charge on Demeanor Evidence
Finally, defendant asserts that "trial counsel was ineffective for failing to object to the
Court's Due Process deficient charge on demeanor evidence." Statement of Errors at p. 6.
Specifically, defendant claims that the following instruction was in error: "The following are
some of the factors that you may and should consider when judging credibility and deciding
whether or not to believe testimony: ... Third, did the witness testify in a convincing manner,
·-~·:,:
how did he or she look, act and speak while testifying, was his or her testimony uncertain,
confused, self-contradictory or evasive." N.T. 9/10/12 at 134-135.
This claim is frivolous. The challenged instruction regarding demeanor evidence is taken
directly from Pennsylvania Suggested Standard Jury Instruction 4.17. See Pa.SSJI 4.17 ("Did
-.•.
. ...... ,..
the witness testify in a convincing manner? [How did [he] [she] look, act, and speak while
testifying? Was [his][her] testimony uncertain, confused, self-contradictory, or evasive?]"). The
Pennsylvania Supreme Court has previously held that Pa.SSJI 4.17 "provide]s] the jury with
those factors that are properly considered in ascertaining credibility." Commonwealth v. Snoke,
.,_
580 A.2d 295, 299-300 (Pa. 1990). Because there was no basis for counsel to object to the
charge, counsel could not have been ineffective for failing to do so.
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IV. CONCLUSION
For the foregoing reasons, the Court's order dismissing Defendant's PCRA petition
should be affirmed.
BY THE COURT:
- {3~
GLENN B. BRONSON, J .
. ,,......
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