Com. v. Arias, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ADAMIS ARIAS, :
:
Appellant : No. 192 MDA 2019
Appeal from the PCRA Order Entered January 8, 2019
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001414-2013
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 13, 2020
Adamis Arias (“Arias”) appeals from the Order denying and dismissing
his Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On August 15, 2014, following a jury trial, Arias was convicted of third-
degree murder. The trial court sentenced Arias to 20 to 40 years in prison.
On January 22, 2016, this Court affirmed the judgment of sentence, and on
August 30, 2016, the Pennsylvania Supreme Court denied Arias’s Petition for
allowance of appeal. See Commonwealth v. Arias, 136 A.3d 1036 (Pa.
Super. 2016) (unpublished memorandum), appeal denied, 145 A.3d 722
(Pa. 2016).
On January 26, 2017, Arias, represented by counsel, filed the instant
timely PCRA Petition. On January 8, 2019, following a hearing, the PCRA court
denied and dismissed Arias’s PCRA Petition. Arias filed a timely Notice of
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Appeal and a Pa.R.A.P. 1925(b) Concise Statement of matters complained of
on appeal.
On appeal, Arias presents the following claims for our review:
I. Whether the PCRA [c]ourt erred when it found that trial
counsel’s performance was not objectively deficient[,] even
though [counsel] did not object to jury instructions which, read as
a whole, did not clearly, adequately and accurately present the
crucial legal issues to the jury for consideration[?] …
II. Whether the PCRA [c]ourt erred when it found that trial
counsel’s performance was not below professional norms[,] even
though the prosecution’s closing argument focused on [Arias’s]
lack of credibility[,] and [counsel] did not insist on an instruction
informing the jury that the prosecution could not satisfy its burden
of disproving self-defense based solely on the jury’s disbelief of
[Arias’s] testimony[?]
III. Whether the PCRA [c]ourt erred when it found that trial
counsel’s request for pattern instructions was not ineffective
assistance of counsel under the circumstances[?]
IV. Whether the PCRA [c]ourt erred and denied fundamental rights
guaranteed by the due process clause of the Fourteenth
Amendment to the Constitution of the United States[,] when it
affirmed the conviction despite the trial court’s failure to give the
jury clear, adequate and accurate instructions[,] thereby
depriving [Arias] of a fair trial[?]
Brief for Appellant at 2-3 (legal argument and citations omitted).
“The standard of review of an order [denying] a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).
“The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Id. (citation omitted).
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In his first claim, Arias alleges that his trial counsel was ineffective by
failing to object to a jury instruction regarding the inference of malice where
a deadly weapon is used on a vital part of the body. See Brief for Appellant
at 16-22. Arias argues that (1) the jury instruction improperly shifted the
burden of proof to Arias to disprove malice; and (2) the evidence at trial did
not show that Arias used a deadly weapon on a vital part of the victim’s body.
Id. at 18-22. Arias claims that had his trial counsel objected to the jury
instruction, the jury likely would not have found malice on the part of Arias.
Id. at 22.
To succeed on an ineffectiveness claim, Arias must demonstrate by a
preponderance of evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but
for counsel’s ineffectiveness, there is a reasonable probability that
the outcome of the proceedings would have been different.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). Counsel is presumed
to be effective and the burden is on the appellant to prove otherwise.
Commonwealth v. Hannible, 30 A.3d 426, 439 (Pa. 2011). A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
When reviewing a challenge to jury instructions, the
reviewing court must consider the charge as a whole to determine
if the charge was inadequate, erroneous, or prejudicial. The trial
court has broad discretion in phrasing its instructions, and may
choose its own wording so long as the law is clearly, adequately,
and accurately presented to the jury for its consideration. A new
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trial is required on account of an erroneous jury instruction only if
the instruction under review contained fundamental error, misled,
or confused the jury.
Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009).
Here, the trial court instructed the jury that “[i]f you believe that [Arias]
intentionally used a deadly weapon on a vital part of the victim’s body, you
may regard that as an item of circumstantial evidence from which you may,
if you choose, infer that the defendant had the specific intent to kill.” See
N.T., 8/12-14/2014, at 818-19 (emphasis added). The jury instruction
allowed the jury to find malice if it found that a deadly weapon was used on a
vital part of the victim’s body, but did not require that finding. This instruction
mirrors the standard Pennsylvania deadly weapon jury instruction, see
Pa.SSJI (Crim) 15.2502A, and has been upheld by our Supreme Court. See
Commonwealth v. O’Searo, 352 A.2d 30, 37-38 (Pa. 1976) (upholding a
deadly weapon jury instruction that “permits the jury to find intent [to kill]
from the use of a deadly weapon[,]” but does not require it).1 Therefore, the
jury instruction was not improper.
Additionally, the evidence established that Arias shot the victim twice in
the torso; one bullet entered the victim’s back and lodged in his spine; the
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1 We note that Arias’s comparison of the jury instruction herein to the
instruction ruled unconstitutional in Yates v. Evatt, 500 U.S. 391 (1991), is
misplaced. The instruction in Yates was based on a mandatory presumption.
See id. (stating that the instruction used at trial informed the jury that “malice
is implied or presumed” when a deadly weapon is used (emphasis added)).
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second bullet entered the victim’s abdomen and lodged in his stomach cavity.
See N.T., 8/12-14/2014, at 491-96; see also id. at 175-76. Gary Ross, M.D.,
a forensic pathologist, testified at trial that the gunshot wound to the victim’s
abdomen “was unquestionably lethal, and [the victim] died directly as a result
of this gunshot wound.” Id. at 499. Therefore, the evidence established that
Arias used a deadly weapon on a vital part of the victim’s body. See
Commonwealth v. Sepulveda, 855 A.2d 783, 789 (Pa. 2004) (stating that
where the defendant was shot in the abdomen, he was shot in a vital part of
his body); Commonwealth v. Drumheller, 808 A.2d 893, 908 (Pa. 2002)
(holding that the torso may be considered a vital part of the body).
Accordingly, because Arias’s underlying claim lacks merit, his ineffectiveness
claim fails.
We will consider Arias’s second and third claims together. In his second
claim, Arias alleges that his trial counsel rendered ineffective assistance by
failing to request a jury instruction. See Brief for Appellant at 22-27. Arias
argues that the jury should have been instructed that the Commonwealth
could not sustain its burden of proof solely on the fact-finder’s disbelief of
Arias’s testimony. Id.
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In his third claim, Arias alleges that trial counsel was ineffective by
requesting “pattern jury instructions.”2 See id. at 27-34. Arias argues that
the facts of his case were too complicated for pattern jury instructions to
adequately inform the jury of the law that applied to his case. Id.
In both his second and third claims, Arias fails to develop all three
prongs of the ineffectiveness test. In his second claim, Arias provides
discussion of why his claims have merit, but fails to develop the remaining
two prongs of the ineffectiveness test. In his third claim, Arias cites to general
legal authority regarding jury instructions, but fails to cite to any pertinent
legal authority regarding his particular claim, or provide any discussion of why
trial counsel’s actions lacked any reasonable basis. Because Arias failed to
properly develop these issues for our review, they are waived. See
Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (stating that an
“appellant’s failure to develop any argument at all concerning the second and
third prongs of the ineffectiveness test … results in waiver of” the claim); see
also Martin, supra.
In his fourth claim, Arias alleges that the trial court failed to give
adequate jury instructions, in violation of his right to due process under the
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2 Also referred to as “model jury instructions,” pattern jury instructions are
defined as “[a] form jury charge usu[ally] approved by a state bar association
or similar group regarding matters arising in a typical case. Courts usu[ally]
accept model jury instructions as authoritative.” BLACK’S LAW DICTIONARY (11th
ed. 2019), available at Westlaw.
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Fourteenth Amendment to the United States Constitution. See Brief for
Appellant at 34-37. Arias argues that the jury instructions were not tailored
to the facts of his case, and failed to accurately and sufficiently state the law
regarding self-defense. Id.
Here, Arias fails to provide pertinent argument as to why the jury
instructions used in his case were deficient, and to reference relevant legal
authority in support. “[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is waived.”
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). It is not the
role of this Court to “formulate [an a]ppellant’s arguments for him.” Id. at
925. Accordingly, Arias’s fourth claim is waived. See id., supra.
Based on the foregoing, we affirm the PCRA court’s Order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2020
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