Com. v. Villenes, W. ( 2023 )

J-S07042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM VILLINES :
:
Appellant : No. 898 EDA 2021
Appeal from the PCRA Order Entered April 26, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015464-2009
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED AUGUST 14, 2023
Appellant, William Villines, appeals from the order entered in
Philadelphia County Court of Common Pleas, denying his petition filed under
the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court opinion sets forth the relevant facts and procedural
history of this case as follows:
On September 17, 2009, Anwar Connors (“Decedent”) was
shot and killed in the city and county of Philadelphia. On
October 15, 2009, Appellant was arrested and charged with
murder generally, conspiracy to commit murder, various
firearms charges, and [possessing instruments of crime
(“PIC”)].
A jury trial began on January 18, 2011. During the course
of the trial, it was established that Appellant was at the
house of his cousin and co-defendant, Jermaine Villines.
Testimony was provided that Decedent got into a verbal
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
J-S07042-23
argument with Jermaine over money. This argument
occurred outside of the co-defendant’s house and was
witnessed by Appellant. Upon witnessing this argument,
Appellant retrieved a firearm and went outside and followed
Decedent as he walked towards his vehicle. Decedent then
observed Appellant’s firearm and turned around with his
arms raised saying “whoa, whoa, hold on.” Appellant asked
Jermaine “Hit him?” to which Jermaine replied “Green light.
Hit him.” Appellant then shot [D]ecedent and after he fell
to the ground fired a total of five or six more shots at him.
Decedent was struck three times and died as a result of the
gunshot wounds. Appellant made a statement to Detectives
after his arrest, generally acknowledging the
aforementioned facts and also confirmed that [D]ecedent
was unarmed. However, he indicated that he believed
[D]ecedent was going to his car to retrieve a firearm.
[At trial, Appellant testified that Decedent showed Appellant
and co-defendant that Decedent had a gun in his waistband
earlier that night. Appellant sat inside the house, drank “a
couple of drinks,” and heard an argument outside. He
grabbed his gun and went to the porch. Appellant testified
that Decedent threatened that he was going to kill Appellant
and his cousin and go to his car to get a gun. As Decedent
started to walk to the car, Appellant shot at him because he
was scared.]
On January 24, 2011, following a jury trial…, Appellant was
found guilty of First Degree Murder, Attempted Murder,
Criminal Conspiracy to Commit Murder, various firearms
charges, and PIC. On the same date, Appellant was
sentenced to mandatory life without parole and a
consecutive term of 15 to 40 years of incarceration.
On January 31, 2011, Appellant filed timely post-sentence
motions, which were denied on May 31, 2011. On June 14,
2011, Appellant filed a timely Notice of Appeal to the
Pennsylvania Superior Court. On May 24, 2013, the
Pennsylvania Superior Court affirmed the judgment of
sentence. On May 29, 2013, Appellant filed a Petition for
Allowance of Appeal with the Pennsylvania Supreme Court.
The aforementioned petition was denied on October 29,
2013. [See Commonwealth v. Villines, 81 A.3d 1004(Pa.Super. 2013) (unpublished memorandum), appeal
-2-
J-S07042-23
denied, 621 Pa. 703, 78 A.3d 1091 (2013).] On January 2,
2014, Appellant filed a timely, first PCRA Petition.
Earl G. Kauffman, Esquire, was assigned to be Appellant’s
first PCRA Counsel. Attorney Kauffman determined that this
issue lacked merit and filed Finley Letters[2] on two
separate occasions. After Appellant filed a response to the
[Pa.R.Crim.P.] 907 Notice, Attorney Kauffman was removed
and Gina A. Amoriello, Esquire (“PCRA Counsel”), was
appointed. PCRA Counsel initially filed a Finley letter
opining that all issues in the PCRA Petition lacked merit,
prior to filing an Amended PCRA Petition on March 4, 2019.
On March 20, 2021, [the] court sent a Dismissal Notice as
per Rule 907. On April 28, 2021, [the] court formally
dismissed Appellant’s PCRA Petition.
(PCRA Court Opinion, filed 1/10/22, at 1-2). Appellant timely filed a notice of
appeal on May 1, 2021. On September 23, 2021, the PCRA court ordered
Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, and Appellant timely complied on September 26, 2021.
Appellant raises the following issue for our review:
Did the PCRA [c]ourt err and/or abuse its discretion when it
denied [Appellant’s] petition under the PCRA seeking a new
trial based upon a claim that trial counsel was ineffective for
failing to:
a. Pursue a defense based on voluntary intoxication;
b. Have the jury charged with respect to self-defense;
c. Question eyewitness Charles Mason regarding his
perceptions and belief about the conduct of [D]ecedent,
which was vital to a self-defense claim.
____________________________________________
2 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
-3-
J-S07042-23
(Appellant’s Brief at 4).
“Our standard of review of [an] order granting or denying relief under
the PCRA calls upon us to determine whether the determination of the PCRA
court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The
PCRA court’s factual findings are binding if the record supports them, and we
review the court’s legal conclusions de novo.” Commonwealth v. Prater,
256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d
386 (2021).
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, 663 Pa. 418, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant 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. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
-4-
J-S07042-23
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“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[.]” Commonwealth
v. K. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa.
175, 179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514,
524, 645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for
failing to pursue a baseless or meritless claim.” Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth
v. Geathers, 847 A.2d 730, 733 (Pa.Super. 2004)).
“Once this threshold is met we apply the ‘reasonable basis’ test to
determine whether counsel’s chosen course was designed to effectuate his
client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client’s
interests. We do not employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may
have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
-5-
J-S07042-23
“To demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[A] criminal
defendant alleging prejudice must show that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
In Appellant’s first claim of ineffectiveness, Appellant argues that trial
counsel failed to pursue a voluntary intoxication defense to reduce the murder
charge from first-degree to third-degree. Specifically, Appellant asserts that
there was evidence on the record to support this defense where (1) Appellant
told the police he drank “vodka and Pepsi,” (2) Appellant testified at trial that
he had a couple of drinks and was under the influence, and (3) Appellant told
trial counsel that he drank a half of bottle of vodka and smoked marijuana
before the incident.
Appellant insists counsel had no reasonable strategic basis for failing to
pursue a voluntary intoxication defense. Appellant contends that defense
counsel argued at trial that Appellant lacked the intent required for first degree
murder, therefore, a voluntary intoxication defense would not have conflicted
-6-
J-S07042-23
with the defense’s strategy. Appellant maintains that he suffered prejudice
because if counsel pursued the voluntary intoxication defense, there is a
reasonable probability that at least one juror would have possessed
reasonable doubt about first degree murder, and Appellant would have been
convicted of the lesser offense of third-degree murder, which carries a much
shorter sentence. Appellant concludes counsel was ineffective on this basis,
and this Court must grant relief. We disagree.
Our Supreme Court has explained:
A defense of diminished capacity grounded in voluntary
intoxication is a very limited defense, which does not
exculpate the defendant from criminal liability, but, if
successfully advanced, mitigates first-degree murder to
third-degree murder. The mere fact of intoxication is not a
defense; rather, the defendant must prove that his cognitive
abilities of deliberation and premeditation were so
compromised by voluntary intoxication that he was unable
to formulate the specific intent to kill. In other words, to
prove a voluntary intoxication defense, the defendant
must show that he was overwhelmed to the point of
losing his faculties and sensibilities. Evidence that the
defendant lacked the ability to control his actions or acted
impulsively is irrelevant to specific intent to kill, and thus
does not constitute support of a voluntary intoxication
defense.
Commonwealth v. Bardo, 629 Pa. 352, 415-16, 105 A.3d 678, 716 (2014)
(internal citations omitted) (emphasis added). See also Spotz, supra at 587
Pa. 1, 47, 896 A.2d 1191, 1218 (stating that to warrant finding that homicide
does not rise to level of first-degree murder, evidence must demonstrate that
defendant was intoxicated to such extent that he was unable to form requisite
-7-
J-S07042-23
intent; in other words, it must be established that defendant was
“overwhelmed to the point of losing his sensibilities”).
Instantly, the PCRA court concluded that Appellant’s claim of
ineffectiveness based on counsel’s failure to pursue a voluntary intoxication
defense lacked arguable merit. The court reasoned:
Appellant cannot satisfy the first prong of the test for
ineffective assistance of counsel—that this claim has
arguable merit. This issue was discussed at length in both
[counsel’s] Finley letters as well as in the original 907
Notice issued by [the trial court]. Appellant had originally
told police that he had been drinking “vodka and Pepsi.” At
trial, Appellant then testified that he had “a couple of drinks”
and referenced being under the influence. Appellant at
some point told [PCRA counsel] that he drank half a bottle
of vodka and had been smoking marijuana all day, but it is
unclear when Appellant communicated this to PCRA
Counsel. Appellant had been represented by various
attorneys for four years with numerous Finley letters
having been written addressing this claim. It is unclear why,
if Appellant had actually drank half a bottle of vodka and
smoked marijuana all day when he shot [D]ecedent, he
failed to mention this in his own defense. Appellant has
gone from saying that he consumed an unspecified amount
of “vodka and Pepsi,” which did not satisfy the requirements
for an intoxication defense, to Appellant claiming he drank
half a bottle of vodka and smoked marijuana all day long
before shooting [D]ecedent. Considering how Appellant
appeared to recall the events of that day clearly at his trial,
this casts doubt on what Appellant actually consumed that
day. Finally, in Appellant’s statement to police he indicated
that he deliberately brought his firearm with him from his
house when he went outside during the confrontation with
Decedent because “something told me to take the gun and
I took it off the shelf with me.” N.T. January 21, 2011,
pages 76-77. This shows he exhibited the cognitive tools of
deliberation and premeditation that would need to be
impaired in order to establish diminished capacity.
However, Appellant’s actions on the night in question
demonstrate that his cognitive ability was sufficient to form
-8-
J-S07042-23
the specific intent to kill, despite some degree of
intoxication.1
1 Upon exiting his house with the firearm, Appellant
turned to his cousin [co-defendant] and asked “Hit
him[?]” to which [co-defendant] replied “Green light,
hit him.” N.T. January 19, 2011, page 131 lines 2-6.
Appellant’s exchange with his cousin prior to shooting
[D]ecedent six times demonstrates sufficient
cognitive ability to form a specific intent to kill
regardless of Appellant’s level of intoxication.
(PCRA Court Opinion at 5-6).
We agree with the PCRA court’s analysis. As the PCRA court explained,
Appellant testified in his own defense and mentioned only that he consumed
a “couple of drinks.” In his statement to police, Appellant said he drank an
unspecified amount of “vodka and Pepsi.” Although Appellant claims on
appeal that he drank half of a bottle of vodka and smoked marijuana, nothing
in the record supports Appellant’s assertion that he consumed this amount of
alcohol and drugs prior to the shooting. Further, Appellant admitted at trial
that he chose to retrieve his gun off the shelf, establishing Appellant’s control
of his faculties. Under these circumstances, the evidence would not have
supported that Appellant was overwhelmed to the point of losing his
sensibilities, necessary for a voluntary intoxication defense. See Bardo,
supra. Thus, Appellant’s first claim of ineffectiveness lacks arguable merit.
See K. Smith, supra. Counsel is not ineffective for failing to pursue a
meritless claim. See Poplawski, supra.-9-
J-S07042-23
In Appellant’s second claim of ineffectiveness, he argues that counsel
failed to seek a jury instruction on either self-defense or imperfect self-
defense. Specifically, Appellant acknowledges that counsel initially requested
a jury instruction on self-defense. Nevertheless, the court stated it would only
issue such an instruction if counsel provided the court with legal authority to
support the jury instruction. Although the judge gave counsel the opportunity
to provide case law to support the jury instruction requested, Appellant
complains that counsel never submitted a memorandum of law. Appellant
asserts that there is ample case law that would have supported a self-defense
or imperfect self-defense jury instruction under the facts of this case.
Appellant claims that counsel had no reasonable strategic basis for
failing to provide the court with the relevant case law. Appellant contends
that a self-defense or imperfect self-defense jury instruction would have been
consistent with Appellant’s theory of the case throughout trial. Appellant
maintains he suffered prejudice based on counsel’s actions because had the
court issued the requested jury instruction, there is a reasonable probability
that at least one juror would have possessed reasonable doubt to convict
Appellant of first-degree murder. Appellant concludes that counsel was
ineffective on this basis, and this Court must grant relief. We disagree.
To succeed on a claim of self-defense, a defendant must show:
1) the defendant reasonably believed that he was in
imminent danger of death or serious bodily injury and that
it was necessary to use deadly [force] to prevent such harm;
2) the defendant did not provoke the threat that resulted in
- 10 -
J-S07042-23
the slaying; and 3) the defendant did not violate a duty to
retreat.
Commonwealth v. Green, 273 A.3d 1080, 1084-85 (Pa.Super. 2022)
(quoting Commonwealth v. Jones, 271 A.3d 452, 458 (Pa.Super. 2021)).
Further, “before the issue of self-defense may be submitted to a jury for
consideration, a valid claim of self-defense must be made out as a matter of
law, and this determination must be made by the trial judge.” Id. at 1085(quoting Commonwealth v. Hansley, 24 A.3d 410, 420 (Pa.Super. 2011)).
A valid claim of self-defense,
may consist of evidence from whatever source. Such
evidence may be adduced by the defendant as part of his
case, or conceivably, may be found in the Commonwealth’s
own case in chief or be elicited through cross-examination.
However, such evidence from whatever source must speak
to [the aforementioned] three specific elements for a claim
of self-defense to be placed in issue for a jury’s
consideration.
Hansley, supra at 420-21. “If there is evidence supporting the three
elements of self-defense, then the decision as to whether the claim is a valid
one is left to the jury and the jury must be charged properly thereon by the
trial court.” See Green supra at 1085 (internal citations omitted).
Additionally:
A defense of “imperfect self-defense” exists where the
defendant actually, but unreasonably, believed that deadly
force was necessary. However, all other principles of self-
defense must still be met in order to establish this defense.
The requirements of self-defense are statutory: [t]he use of
force upon or toward another person is justifiable when the
actor believes that such force is immediately necessary for
the purpose of protecting himself against the use of unlawful
- 11 -
J-S07042-23
force by such other person on the present occasion. If the
defender did not reasonably believe deadly force was
necessary[,] he provoked the incident, or he could retreat
with safety, then his use of deadly force in self-defense was
not justifiable. A successful claim of imperfect self-defense
reduces murder to voluntary manslaughter.
Commonwealth v. Truong, 36 A.3d 592, 599 (Pa.Super. 2012) (internal
citations omitted).
Instantly, the PCRA court concluded that this ineffectiveness claim
lacked arguable merit, explaining:
Trial counsel raised the possibility of a self-defense jury
instruction prior to the Commonwealth closing.3 Throughout
the Commonwealth’s testimony, it became clear that
[D]ecedent was walking towards his vehicle when Appellant
retrieved a firearm and followed him. When [D]ecedent
turned around, he raised his hands in the air and said “whoa,
whoa,” making it clear that he was unarmed. After
Appellant shot Decedent and Decedent fell to the ground, it
remained clear that Decedent was unarmed as Appellant
shot Decedent at least five more times. Based on these
facts, [the trial court] opined that a self-defense instruction
was not warranted. [The trial judge] indicated that she
would be willing to reconsider the issue if a memo with case
law was submitted supporting the use of an instruction given
these facts or if new testimony was presented supporting
such an instruction.
Appellant’s strongest argument was that his testimony
provided a sufficient basis to provide either a self-defense
or imperfect self-defense claim and therefore [the trial
court] would have reconsidered if again raised by [c]ounsel.
Appellant testified that he was concerned because he saw
Decedent with a gun a few hours earlier. This would not
satisfy the second element of reasonably believing he was
in imminent danger. Even assuming it was sufficient for the
affirmative defense of either self-defense or imperfect self-
defense, he would still need to show the other two
elements—that he was free from fault in provoking or
continuing the difficulty which resulted in the use of deadly
- 12 -
J-S07042-23
force and that he did not violate any duty to retreat or to
avoid the danger. It is undisputed that Appellant retrieved
a firearm and then exited the house and followed
[D]ecedent to his vehicle. This belies any argument that he
was free from fault in continuing the difficulty. Further,
exiting the house and pursuing [D]ecedent is the opposite
of avoiding danger and was certainly contrary to the duty to
retreat. Therefore, the first and third elements were not
satisfied for the affirmative defense of either self-defense or
imperfect self-defense.
3 Considering that [D]ecedent was shot on his way to
his vehicle, Appellant would not be able to avail
himself to either the affirmative defenses of self-
defense or defense of others considering that at the
time [D]ecedent was shot, even if self-defense could
apply, Appellant would have used unwarranted
excessive force. Also, Appellant would have also
violated his duty to retreat. Appellant admitted that
he argued with Decedent on a porch and that after the
argument Appellant entered the house, took the
firearm off the shelf, and followed Decedent to his car
before shooting him. As such, Appellant violated his
duty to retreat by not staying in the house and instead
choosing to take the firearm and follow Decedent to
his vehicle.
(PCRA Court Opinion at 8-9).
We agree with the PCRA court’s analysis. Despite Appellant’s testimony
that he believed that he was in danger when Decedent was walking to his car
to get a gun, Appellant failed to establish that the danger was imminent or
that he could not retreat. The prosecutor asked Appellant during cross-
examination: “There was nothing stopping you from running into [the house],
correct?” Appellant admitted that he could have retreated. (See N.T. Trial,
1/21/11, at 96). Under these circumstances, a jury instruction on self-defense
was not warranted because Appellant did not establish the three elements for
- 13 -
J-S07042-23
self-defense or imperfect self-defense. See Green, supra. See also
Truong, supra. Consequently, Appellant’s ineffectiveness claim lacks
arguable merit. See K. Smith, supra.In his last claim of ineffectiveness, Appellant argues that counsel failed
to question eyewitness Charles Mason about his perceptions of Decedent’s
actions. Specifically, Appellant insists counsel should have cross-examined
Mr. Mason about whether he believed Decedent was armed or about to
retrieve a gun from the car. Appellant contends counsel had no reasonable
strategic basis for failing to pursue this line of questioning. Appellant insists
that cross-examining Mr. Mason on his belief about whether Decedent was
going to the car to retrieve a gun would have advanced defense counsel’s
theory of imperfect self-defense. Appellant maintains that he suffered
prejudice because testimony from Mr. Mason which corroborated Appellant’s
testimony regarding whether Decedent was going to get a gun would have
given the jury reasonable doubt on Appellant’s first-degree murder charge.
Appellant concludes counsel was ineffective on this basis, and this Court must
grant relief. We disagree.
“Matters concerning the examination and cross-examination of
witnesses are matters clearly within the province of trial counsel.”
Commonwealth v J. Smith, 609 Pa. 605, 672, 17 A.3d 873, 912 (2011),
cert. denied, 567 U.S. 937, 133 S.Ct. 24, 183 L.ed.2d 680 (2012). “The right
to representation by counsel to be meaningful necessarily includes the right
- 14 -
J-S07042-23
to effective representation.” Id. “The examination into the effectiveness of
counsel does not turn on whether other alternatives were more reasonable,
employing a hindsight evaluation of the record.” Id.Instantly, the PCRA court addressed this claim as follows:
Trial counsel extensively cross-examined witness Charles
Mason regarding the events that night. According to Mason,
he witnessed the argument between Co-Defendant
Jermaine Villines and Decedent. After diffusing the
situation, Mason began to walk away. Mason then heard
Co-Defendant Jermaine Villines say “green light, hit him.”
This was followed by multiple gunshots. Mason then turned
around, at which time he saw Appellant standing over
Decedent and firing multiple gunshots. As a result, Mason’s
back was turned in the moments immediately prior to and
during the shooting. There was no opportunity for Mason to
witness Decedent do anything that would have warranted
the use of deadly force. [Appellant] did not offer what facts
trial counsel could have used to cross-examine Mason as
there was no evidence of prior statements he made that
may have supported self-defense.
Appellant specifically wanted counsel to ask “whether
[Mason] had reason to believe [D]ecedent was armed or
about to retrieve a gun from his vehicle at the time of the
incident.” Amended Petition, March 5, 2019, page 8. This
question would not have changed the outcome of the case
as Mason was questioned by [co-defendant’s] counsel about
this topic:
ATTORNEY SERVER: “[Decedent] got shot right next
to the passenger’s side door there to that vehicle,
didn’t he?”
WITNESS MASON: “Yes.”
ATTORNEY SERVER: “Like he was getting into the car,
right?”
WITNESS MASON: “I don’t know.”
- 15 -
J-S07042-23
ATTORNEY SERVER: “Well, that was the car
[Decedent] was driving, right?”
WITNESS MASON: “Yes.”
ATTORNEY SERVER: “So he got shot right next to the
passenger’s side door as opposed to the driver’s side;
isn’t that right?”
WITNESS MASON: “Yes.”
ATTORNEY SERVER: “If we can put up C-8.”
ATTORNEY SERVER: “That’s exactly where [Decedent]
got shot, right at that spot where the bloodstain is;
isn’t that right?”
WITNESS MASON: “Yes.”
ATTORNEY SERVER: “Trying to get in the passenger’s
side of the vehicle?”
WITNESS MASON: “I don’t know.”
ATTORNEY SERVER: “The side where the gun might
have been located?”
WITNESS MASON: “I don’t know.”
ATTORNEY SERVER: “Well, you saw him carry a gun,
didn’t you?”
WITNESS MASON: “No.”
ATTORNEY SERVER: “If we could put up C-11.”
ATTORNEY SERVER: “Do you see the windshield of
that vehicle?”
WITNESS MASON: “Yes.”
ATTORNEY SERVER: “Is that [Decedent’s] vehicle?”
WITNESS MASON: “Yes.”
- 16 -
J-S07042-23
Witness Mason had every opportunity to express his belief
as to whether or not decedent was going to retrieve a
weapon in his vehicle. While [co-defendant’s] counsel did
not specifically ask the witness about his subjective belief,
these questions certainly did open the door for Mason to
express same. His response that he did not know if
[Decedent] was trying to get into the passenger side or if
he might have had a gun located there answered the
question posed by Appellant. Repeating this question again
[by Appellant’s trial counsel] would be questionable in terms
of admissibility, since it was already asked and answered.
Further, Witness Mason had his back turned and did not
know that Decedent was in the area of Decedent’s vehicle
until Mason turned around. Mason testified that he believed
that [D]ecedent was following Mason back into Mason’s
house. NT. January 19, 2011, page 181 lines 9-12. As a
result, there would have been no point in time where Mason
could have formed a belief as to why Decedent was going to
his car until after the shooting. Therefore, any “perceptions
or beliefs” would be based upon hindsight.
Even if this could satisfy the first prong of ineffective
assistance of counsel, there would be a reasonable basis for
not asking the question again. Once trial counsel saw that
Mason refused to offer a favorable statement when this
question was posed by counsel for Co-Defendant Jermaine
Villines, there would be potential negative consequences of
revisiting this topic, such as drawing attention to the fact
that [Decedent] was unarmed when he was shot repeatedly
by Appellant. Assuming the court allowed trial counsel to
ask this question again, possibly using more subjective
phrasing, the consequences could have been disastrous to
Appellant’s defense. Mason had already declined to offer a
belief that Decedent may have been going to retrieve a
firearm from the passenger seat. There was no prior
statement that would have supported the idea that Mason
believed that [D]ecedent posed a threat to either Appellant
or his Co-Defendant cousin Jermaine Villines. An attorney
would have a reasonable basis for not asking this question
when he knew the witness was not readily offering a
favorable response. Consequently Appellant cannot prove
ineffective assistance of counsel.
- 17 -
J-S07042-23
(PCRA Court Opinion at 11-13).
We agree with the PCRA court’s analysis. Cross-examination of Mr.
Mason by co-defendant’s counsel suggested that Mr. Mason was not aware if
Decedent was going to the vehicle to retrieve a gun. Additionally, nothing in
the record supports Appellant’s contention that further cross-examination of
Mr. Mason on this topic by Appellant’s trial counsel would have yielded
favorable testimony to Appellant. See J. Smith, supra. Rather, as the PCRA
court explained, additional testimony from Mr. Mason on this topic might have
hurt Appellant’s case instead of helping it. Under these circumstances,
Appellant’s final ineffectiveness claim lacks arguable merit. See K. Smith,
supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2023
- 18 -