Com. v. Mouzon, D.

J-S44042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRIN MOUZON, :
:
Appellant : No. 1292 EDA 2017
Appeal from the PCRA Order March 17, 2017
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0011769-2007
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2018
Darrin Mouzon (“Mouzon”) appeals from the Order dismissing, without
a hearing, his Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In its Opinion, the PCRA court set forth the relevant facts underlying this
appeal as follows:
On September 28, 2006, [Mouzon] arrived at The Flamingo
Bar (Bar), located at 2054 Dennie Street in Philadelphia.
[Mouzon] was quite familiar with the Bar and its layout, and had
used both the main entrance and the rear exit of the Bar. He
entered the Bar prior to 9:00 p.m., at which time the Bar began
screening patrons for weapons. [Mouzon] went to the second floor
of the Bar and drank there for several hours. Shortly after
midnight, [Mouzon] encountered two young women, Shantae and
Erica, near the upstairs bathroom and attempted to speak to
them. He was quickly rebuked. [Mouzon] became very angry and
hostile, following the young women around the [B]ar while calling
them crude names and yelling at them that they “didn’t look good”
and that they “weren’t shit.” He also told the women that he
would “kill you bitches.” The women decided to get away from
[Mouzon,] but he followed them, first down the Bar’s staircase to
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the first floor and then across the first floor towards the Bar’s main
exit.
Dewhitt Smith, a friend who had accompanied Shantae and
Erica to the Bar, noticed [Mouzon’s] treatment of the young
women at that point and suggested they walk in front of him to
exit the Bar. As the young women did so, a heated exchange
occurred between [] Smith and [Mouzon]. The Bar’s security
guards were called into the Bar, and one of the guards pulled []
Smith outside. Immediately thereafter, Andre King (victim), a
friend of [] Smith’s, approached [Mouzon] and a physical
altercation ensued.[FN] [Mouzon] then took a gun out from his
waistband, at which time the victim began to back away from
[Mouzon] with his hands raised in the air; [Mouzon] fired two
shots at the victim’s head from a distance of between three to four
feet away. One bullet struck the victim in his left cheek and
another hit Darlene Redding, a bystander in the crowded Bar, in
her right thigh. [Mouzon] then fled through the Bar’s main exit.
The victim was pronounced dead fifteen days later, on October 13,
2006[,] at 2:30 p.m. at Temple University Hospital. [Mouzon], a
fugitive, was arrested on July 27, 2007.
[FN] There was conflicting testimony as to exactly how the
altercation ensued, but it was consistent that the victim, a rather
large man, hit [Mouzon] first.
PCRA Court Opinion, 9/29/17, at 2-4 (footnote in original; citations to record
and brackets omitted).
On April 23, 2009, following a jury trial, Mouzon was convicted of murder
of the first degree, aggravated assault, firearms not to be carried without a
license, and possession of an instrument of crime. See 18 Pa.C.S.A.
§§ 2502(a), 2702, 6106(a)(1), 907. The trial court sentenced Mouzon to an
aggregate term of life in prison. Mouzon filed a post-sentence Motion, which
was denied by operation of law.
On direct appeal, this Court concluded that the trial court erred by
excluding evidence of the victim’s prior robbery conviction to support
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Mouzon’s claim that the victim was the aggressor, and vacated Mouzon’s
judgment of sentence. See Commonwealth v. Mouzon, 6 A.3d 569 (Pa.
Super. 2010) (unpublished memorandum at 16-18). The Commonwealth
subsequently filed a Petition for allowance of appeal with the Pennsylvania
Supreme Court, which the Supreme Court granted as to the issue concerning
the exclusion of the victim’s prior conviction. See Commonwealth v.
Mouzon, 15 A.3d 43 (Pa. 2011). The Supreme Court reversed the Judgment
of the Superior Court, and reinstated Mouzon’s judgment of sentence,
reasoning that the exclusion of such evidence was not error because the
evidence presented at trial did not support a self-defense claim. See
Commonwealth v. Mouzon, 53 A.3d 738, 750-54 (Pa. 2012).
On March 22, 2013, Mouzon, pro se, filed the instant, timely PCRA
Petition, challenging, inter alia, the effectiveness of his trial counsel. The PCRA
court appointed Mouzon counsel, who filed an Amended PCRA Petition on
Mouzon’s behalf. On March 17, 2017, following appropriate Notice pursuant
to Pa.R.Crim.P. 907, the PCRA court dismissed Mouzon’s Petition without a
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hearing. The instant timely appeal followed.1
On appeal, Mouzon raises the following questions for our review:
I. Did the [] PCRA [c]ourt err when it dismissed [Mouzon’s] PCRA
Petition without a [h]earing wherein [Mouzon,] through counsel[,]
pled and would have been able to prove that he was entitled to
relief?
II. Is [Mouzon] entitled to a new trial where trial counsel was
ineffective when he failed to strongly advise [Mouzon] that he
must testify?
Brief for Appellant at 3.
Our standard of review of a PCRA court’s [dismissal] of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is free
of legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citation
omitted).
There is no absolute right to an evidentiary hearing, and a PCRA court
has discretion to deny a petition without a hearing “if the PCRA court
____________________________________________
1 On April 18, 2017, the PCRA court entered an Order instructing Mouzon to
file a concise statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Mouzon failed to comply, and the PCRA court issued an
Opinion, indicating that it would not address any issues raised by Mouzon.
See PCRA Court Opinion, 5/23/17. On July 17, 2017, PCRA counsel filed a
Petition for Remand in this Court, explaining that he had failed to file a concise
statement on Mouzon’s behalf as a result of an administrative error, and
asking this Court to remand the matter to the PCRA court so that he could file
a concise statement. This Court thereafter entered an Order, remanding the
case to the PCRA court, directing Mouzon to file a concise statement, and
instructing the PCRA court to file a supplemental opinion. Both Mouzon and
the PCRA court timely complied with this Court’s directive.
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determines that the petitioner’s claim is patently frivolous and is without a
trace of support in either the record or from other evidence.”
Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006). “To obtain
reversal of a PCRA court’s decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of fact which, if resolved
in his favor, would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Commonwealth v. Hanible, 30
A.3d 426, 438 (Pa. 2011) (citation and brackets omitted). Thus, when the
PCRA court denies a petition without an evidentiary hearing, we “examine
each issue raised in the PCRA petition in light of the certified record before it
in order to determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in denying relief
without conducting an evidentiary hearing.” Commonwealth v. Khalifah,
852 A.2d 1238, 1240 (Pa. Super. 2004).
The PCRA permits relief when a conviction is the result of “[i]neffective
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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
It is well-settled that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error.
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Franklin, 990 A.2d at 797 (citations omitted). “A PCRA petitioner must
address each of these prongs on appeal.” Commonwealth v. Wholaver,
177 A.3d 136, 144 (Pa. 2018). Additionally, “if the record reflects that the
underlying issue is of no arguable merit or no prejudice resulted, no
evidentiary hearing is required.” Commonwealth v. Baumhammers, 92
A.3d 708, 726-27 (Pa. 2014).
We will address Mouzon’s claims together. In his first claim, Mouzon
argues that the PCRA court erred in dismissing his Petition without a hearing,
because he would have been able to prove his allegations. Brief for Appellant
at 9. Specifically, Mouzon contends that his trial counsel was ineffective for
failing to “strongly advise” Mouzon to testify at trial. Id. Mouzon claims that
the issue before the court was whether he had a reasonable belief that the
exercise of deadly force was necessary, and therefore, testimony regarding
his mental state could have impacted the jury’s evaluation of the evidence.
Id. In his second claim, Mouzon restates, verbatim, his argument challenging
his trial counsel’s effectiveness for failing to advise him to testify at trial. Id.
at 13-15.
Here, Mouzon did not specifically address the three prongs of the test
for ineffective assistance of counsel. See Wholaver, 177 A.3d at 144.
Further, Mouzon failed to provide an adequate discussion of his claims with
citations to relevant legal authority. See Pa.R.A.P. 2119(a) (providing that
the argument shall include “such discussion and citation of authorities as are
deemed pertinent.”). Instead, Mouzon merely offers a summary of the
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Supreme Court’s decision, as well as several musings about how the Supreme
Court’s decision would have been different had the trial court determined that
the victim was the aggressor. See Brief for Appellant at 11-12. Because
Mouzon failed to properly develop this issue for our review, it is waived. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that
“where 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.”).2
Based upon the foregoing, we affirm the PCRA court’s Order dismissing
Mouzon’s Petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/18
____________________________________________
2 Mouzon also baldly claims that his trial counsel was ineffective for failing to
request a jury instruction on voluntary manslaughter. Brief for Appellant at
10. However, Mouzon similarly failed to develop this issue in a meaningful
fashion capable of our review. See Pa.R.A.P. 2119(a); see also Johnson,
supra. Even if Mouzon had properly developed his claims, we would conclude
that they lack merit for the reasons set forth by the PCRA court in its Opinion.
See PCRA Court Opinion, 9/29/17, at 4-8, 12-16.
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