Com. v. Booker, F.

J-S43018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
FRANK DONTE BOOKER
Appellant No. 1544 WDA 2016
Appeal from the PCRA Order Dated September 20, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008090-2012
CP-02-CR-0008338-2012
CP-02-CR-0011318-2013
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 12, 2017
Appellant, Frank Donte Booker, appeals pro se from the order
dismissing his petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
On August 22, 2013, a jury convicted Appellant of third-degree murder
and related charges. Appellant filed a direct appeal in which he raised two
claims challenging the trial court’s jury instructions. This Court stated,
“[b]oth issues are premised upon [Appellant’s] theory of the case that [two
individuals] attempted to rob him . . . and that he shot [one of the
individuals,] believing that his life was in danger.” Commonwealth v.
Booker, 134 A.3d 107 (Pa. Super. 2015) (unpublished memorandum),
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S43018-17
appeal denied, 131 A.3d 489 (Pa. 2016). Upon review, this Court affirmed
Appellant’s judgment of sentence based on our determination that Appellant
waived the two claims by not objecting when the trial court gave the jury
instructions. Appellant filed a petition for allowance of appeal with the
Supreme Court. After the Supreme Court denied the petition, Appellant
timely filed the underlying PCRA petition pro se. See 42 Pa.C.S. §
9545(b)(3).
The PCRA court appointed counsel to represent Appellant, and on
June 17, 2016, Appellant’s counsel filed a motion for leave to withdraw and
Turner/Finley brief in support of the motion.1 On July 14, 2016, the PCRA
court granted counsel’s request to withdraw his appearance and gave notice
of its intent to dismiss the PCRA petition. Appellant filed a pro se response
on September 19, 2016. The PCRA court dismissed Appellant’s PCRA
petition on September 20, 2016. Appellant filed a timely appeal on
October 7, 2016. The PCRA court issued its opinion on February 27, 2017
and the certified record was transmitted to this Court.
On appeal, Appellant presents four issues in which he asserts the
ineffectiveness as trial counsel:
1. Did the PCRA court err in rejecting without a hearing
[Appellant’s] claim that trial counsel was ineffective for failing to
lodge a timely and specific objection to the Court’s refusal to
charge the jury on justification/self-defense?
____________________________________________
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Finley v.
Pennsylvania, 550 A.2d 213 (Pa. Super. 1987) (en banc).
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2. Did the PCRA court err in rejecting without a hearing
[Appellant’s] claim that trial counsel was ineffective for failing to
lodge a timely and specific objection to the Court’s refusal to
charge the jury on the lesser-included offense of manslaughter?
3. Did the PCRA court err in rejecting without a hearing
[Appellant’s] claim that trial counsel was ineffective where she
failed to provide a full consultation about [Appellant’s] right to
testify, offered unreasonable advice to Petitioner not to testify,
and thereby depriv[ed] [Appellant] of his right to testify and the
right to a planned and coherent trial strategy?
4. Did the PCRA court err in rejecting without a hearing
[Appellant’s] claim that trial counsel was ineffective for failing to
present Dr. Alice Applegate, Ph.D., an expert in forensic
psychology, as a witness to support the “unreasonable belief”
facet of the defense?
Appellant’s Brief at 7.
Our standard of review is well-settled:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford
no such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
There is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that no
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J-S43018-17
genuine issues of material fact exist, then a hearing is not necessary.
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation
omitted), appeal denied, 956 A.2d 433 (Pa. 2008). However, a reviewing
court must examine the issues raised in the PCRA petition in light of the
record in order to determine whether the PCRA court erred in concluding
that there were no genuine issues of material fact and in denying relief
without an evidentiary hearing. Commonwealth v. Springer, 961 A.2d
1262, 1264 (Pa. Super. 2008) (citation omitted).
In all of his issues, Appellant claims his trial counsel was ineffective.
Our Supreme Court has stated:
Counsel is presumed effective, and the petitioner bears the
burden of proving otherwise. Commonwealth v. Roney, 622
Pa. 1, 79 A.3d 595, 604 (2013). To prevail on an ineffectiveness
claim, the petitioner must plead and prove, by a preponderance
of the evidence, the Sixth Amendment performance and
prejudice standard set forth in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This Court
has divided the performance component of Strickland into two
sub-parts dealing with arguable merit and reasonable strategy.
Commonwealth v. Baumhammers, . . . 92 A.3d 708, 719
([Pa.] 2014). Thus, to prevail on an ineffectiveness claim, the
petitioner must show: that the underlying legal claim has
arguable merit; that counsel had no reasonable basis for his or
her action or omission; and that the petitioner suffered prejudice
as a result. Id. (citing Commonwealth v. Pierce, 515 Pa. 153,
527 A.2d 973, 975–76 (1987)).
Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014). In other words,
to satisfy his burden, Appellant must plead and prove by a preponderance of
the evidence that: “(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some
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J-S43018-17
reasonable basis designed to effectuate his interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceedings would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of
this test will result in rejection of the petitioner’s ineffective assistance of
counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
Therefore, if a petitioner fails to prove by a preponderance of the evidence
any of the prongs, the court need not address the remaining prongs.
Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009),
appeal denied, 990 A.2d 727 (Pa. 2010). Where the underlying claim is
meritless, “the derivative claim of ineffective assistance of counsel for failing
to object has no arguable merit.” Commonwealth v. Spotz, 47 A.3d 63,
122 (Pa. 2012). Further, “counsel cannot be considered ineffective for
failing to pursue a meritless claim.” Commonwealth v. Lopez, 739 A.2d
485, 495 (Pa. 1999), cert. denied, 530 U.S. 1206 (2000).
Consistent with the foregoing, we have reviewed the record and
determined that the PCRA court did not err in concluding that Appellant’s
claims of trial counsel ineffectiveness did not warrant relief. The PCRA
court’s reasoning is supported by the record and free of legal error. The
Honorable David R. Cashman, who sat as both the trial and PCRA court, has
ably addressed Appellant’s four claims, referencing prevailing precedents, as
well as the evidence presented at trial. Accordingly, we adopt Judge
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Cashman’s opinion in affirming the order denying Appellant post-conviction
relief. The parties are instructed to attach a copy of Judge Cashman’s
February 27, 2017 opinion to any relevant future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2017
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•' Circulated 09/12/2017 10:58 AM
IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEALTH OF
PENNSYLVANIA
COUNTY OF ALLEGHENY
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
CC No. 201208090; 201208338;
201311318
Superior Court No. 1544WDA2016
vs.
FRANK DONTE BOOKER
OPINION
JUDGE DAVID R. CASHMAN
308 Courthouse
436 Grant Street
Pittsburgh, PA 15219
(412) 350-3905
Copies Sent To:
Michael Streily, Esquire
(Interoffice)
Office of the District Attorney
4th Floor, Courthouse
Pittsburgh, PA 15219
Frank D. Booker, #LJ8774
(US Mail)
SCI Fayette
P.O. Box 9999
LaBelle, PA 15450-0999
..
'
IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEALTH OF
PENNSYLVANIA
COUNTY OF ALLEGHENY
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA) CC No. 201208090; 201208338
) 201311318
vs. ) Superior Court No. 1544WDA2016
FRANK DONTE BOOKER )
OPINION
On August 22, 2013, following a jury trial, the appellant, Frank
Booker, (hereinafter referred to as "Booker"), was found guilty of third degree
murder, possession of a firearm without a license and three counts of
recklessly endangering another person. Prior to the commencement of that
jury trial, the charge of person not to possess a firearm was severed and
heard by this Court in a non-jury trial in conjunction with his jury trial. This
Court rendered a verdict of guilty with respect to that charge. A presentence
report was ordered and on November 26, 2013, Booker was sentenced to a
period of incarceration of not less than two hundred twenty-five to four
hundred fifty months for his conviction of third degree murder, a consecutive
sentence of incarceration of not less than sixty nor more than one hundred
twenty months for his conviction of person not to possess a firearm, which
sentence of incarceration was to be followed by a period of probation of seven
years for his conviction of possession of a firearm without a license and three
concurrent periods of probation for his convictions on the charges of
recklessly endangering another person. Booker filed a timely appeal with the
2
Superior Court and that Court, on October 26, 2015, affirmed his judgment of
sentence.
On February 8, 2016, the Supreme Court denied his request for an
allowance of appeal. On March 11, 2016, Booker filed a prose petition for
post-conviction relief and Charles Pass, Esquire, was appointed to represent
him in connection with that petition. On June 17, 2016, Pass filed a
Turner/Finley letter indicating that the claims sought to be raised by
Booker were without merit. This Court sent Booker a notice of intention to
dismiss his petition for post-conviction relief on July 13, 2016. Booker filed a
response to the notice of intention to dismiss on August 2, 2016 and after
reviewing the assertions set forth in that response, this Court denied his
petition without a hearing a on September 19, 2016. Booker then filed a
timely appeal to the Superior Court and was directed pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b) to file a concise statement
of matters complained of on appeal. In complying with that directive on
December 20, 2016, Booker raised four claims of error. Initially Booker
maintains that this Court erred in dismissing his petition without a hearing
as he believed that his trial counsel was ineffective for failing to lodge a
timely objection to this Court's refusal to charge the jury on the defense of
justification. Booker next ma,intains that his trial counsel was ineffective for
failing to object to this Court's refusal to charge on the lesser included offense.
of manslaughter. Booker further maintains that his trial counsel was
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ineffective in provide a full consultation with him with respect to his right to
testify. And, finally, Booker maintains that his trial counsel was ineffective
in failing to present the testimony of Dr. Alice Applegate as a witness in.
support of the unjustifiable belief that the use of deadly force was necessary
with respect to his claim of the defense of justification.
The facts of Booker's case were set forth in this Court's original
Opinion in connection with his direct appeal to the Superior Court as follows:
On May 11, 2012, the victim, Calvonne Rollins,
(hereinafter referred to as "Rollins"), picked up his girlfriend, Tamira
Scheuermann, at work and drove to the Get Go gas station located in
Penn Hills where they were to meet some other people. Rollins was
driving and Scheuermann was the front seat passenger and the one·
year-old son that she had with Rollins was in a car seat in the middle
of the back seat. At the Get Go station they met up with James
Ingram whom they knew and Frank Booker, whom they had never met
before. Ingram asked Rollins to give him a ride back to his house so
that he could get his phone charger and he got into Rollins' vehicle.
Since they did not know Booker, they left him at the Get Go gas
station.
Rollins drove Ingram to his house and they agreed to meet a
little while later so all of them could smoke some marijuana. Later
that day they met up with Gerald Brown and they smoked the
marijuana. Rollins decided to go back to the Get Go station and was
traveling along Coal Hollow Road when they ran into Ingram who was
leaving his girlfriend's house who asked them to give Booker a ride and
he would pay for it. They met up with Booker a short time later and
he agreed to pay for the ride to go to Blackadore Street. Booker was
seated directly behind Rollins in the left rear passenger seat. When
they approached the intersection of Blackadore and Ravina, Rollins
stopped the car. Scheuermann, who was on the phone, thought that
Booker was going to pay Rollins for the jitney ride since he was
fiddling with something inside of his hoodie. Booker then pulled a
silver gun and put it to Rollins' head and told him to "give it up".
When Brown saw the gun, he opened the right rear passenger door and
ran from the car. Rollins attempted to swat the gun away from Booker
and Scheuermann grabbed his wrist in an effort to get it away from
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Booker. Rollins then attempted to push Booker toward the open right
rear door when Booker started to fire anywhere between five and six
shots at Rollins. Booker then fled from the scene. The Escalade
started to drift back down Blackadore until it hit another car and came
to rest. Rollins then opened the driver's door and rolled out of the car
and was lying on the ground. Scheuermann called 911 and requested
the police and paramedics who arrived within ten minutes of that call.
It is obvious that Rollins was in critical condition as a result of the life-
threatening wounds that he received. When he was transported by the
paramedics to Presbyterian-University Hospital, he had no pulse and
was subsequently declared dead by the physicians who initially treated
him at the hospital. No weapon was found on Rollins by the
paramedics or the emergency room personnel who attempted to treat
Rollins.
In processing the Escalade, two bullet fragments were found,
one in the driver's door and the other one in the driver's footwell. It
was determined that the bullet fragments were the same caliber and
although they had similar markings, the criminalist who examined
these fragments was unable to determine if they had been fired from
the same weapon because one of the fragments was so small.
Brown and Scheuermann were interviewed that evening and
told the Allegheny County Police that Booker was the shooter. The
police prepared photo arrays for both Brown and Scheuermann and
both of these individuals identified Booker as the individual who shot
Rollins. An arrest warrant was issued for Booker and several weeks
later, he was arrested in Williamsport, Pennsylvania.
In his direct appeal to the .Superior Court, Booker raised claims that
this Court erred in failing to charge the jury on the defense of justification
and the lesser included offense of manslaughter. The Superior Court, in
reviewing these claims, determined that they were waived since no specific
objection was made by Booker's trial counsel after this Court announced that
it would not charge on justification or manslaughter. Booker has now raised
those claims on the basis that his trial counsel was ineffective for failing to
assert a timely objection to this Court's refusal to charge on justification and
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manslaughter. The claims of the ineffectiveness of his trial counsel provide
Booker with a separate avenue for seeking to address those issues since the
Supreme Court in Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564,
573 (2005), recognized that the claim of the ineffectiveness of counsel is a
separate claim from the underlying assertion that the Court erred in refusing
to charge on specific issues.
What is clear from Immelmann and Molina is that
ineffectiveness claims are distinct' from those claims that are raised on
direct appeal. The former claims challenge the adequacy of
representation rather than the conviction of the defendant.
Accordingly, we are persuaded by Appellant's position that a Sixth
Amendment claim of ineffectiveness raises a distinct legal ground for
purposes of state PCRA review under § ·9544(a)(2). Ultimately, the
claim may fail on the arguable merit or prejudice prong for the reasons
discussed on direct appeal, but a Sixth Amendment claim raises a
distinct issue for purposes of the PCRA and must be treated as such.
Cf. Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 462 (2004)
(noting alternatively that even if the ineffectiveness claim was not
previously litigated, the severance theory underlying the claim of
ineffectiveness fails for the same reason the Bruton v. United States,
391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) theory failed on
direct appeal). FNIO For these reasons, we believe that a PCRA court
should recognize ineffectiveness claims as distinct issues and review
them under the three-prong ineffectiveness standard announced in
Pierce.FN11 Consistent with this standard, the petitioner must establish
that: (1) the underlying claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis for his
or her actions or failure to act; and (3) the petitioner suffered prejudice
as a result of that counsel's deficient performance. Pi,erce, 527 A.2d at
976-77.
FNlO. Furthermore, although in many cases the claim will be
dismissed for the reasons discussed on direct appeal, this is not
,·.
a distinction without a difference, because it is a distinct,
constitutional claim that deserves its own analysis regardless of
the result of that analysis. Furthermore, we can envision
circumstances where a defendant may be entitled to relief on an
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ineffectiveness claim attacking counsel's performance on direct
review.
FNll. Of course, an exception to this, which should rarely occur
following our decision in Grant, supra n. 9, would occur if a
claim of ineffectiveness was raised on direct appeal and a
claimant seeks to raise the same claim of ineffectiveness on
collateral review.
The Pennsylvania Supreme Court in Commonwealth v. Collins,
supra; recognized that there is a separate and distinct claim that is being
asserted when the claim of the ineffectiveness is being made even as it
pertains to an issue that has been previously litigated since the claim that is
being raised is the stewardship of the petitioner's counsel which affects his
rights under the Sixth Amendment and the United States Constitution,
under Article I, Section 9 of the Pennsylvania Constitution. Although the
basis for the claims of the ineffectiveness of Booker's counsel had been
previously litigated in his direct appeal, it is the current contention of the
ineffectiveness of his counsel with respect to those claims that provides
Booker with the basis for asserting his current claims for relief under the
Post-Conviction Relief Act.
In reviewing a claim of ineffectiveness it is well settled that the law
presumes that counsel was effective and that the petitioner asserting that
claim of ineffectiveness bears the burden of proving it. Commonwealth v.
Khalil, 806 A.2d 415 (Pa. Super. 2002). In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States
Supreme Court set forth the standards for the performance and prejudice for
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evaluating the conduct of counsel. These standards were adopted by the
Pennsylvania Supreme Court in Commonwealth v. Pierce, 515 Pa. 153,
527 A.2d 973 (1987), and require that a defendant prove a three-prong test,
the first being that the claim currently being asserted has arguable merit;
second, that counsel had no reasonable basis for his action or omission; and,
third, that the defendant was prejudiced by his counsel's conduct. In
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999), the
Supreme Court set forth the burden of proof imposed upon a petitioner in
establishing the claim of ineffectiveness.
To show ineffective assistance of counsel which so undermined
truth-determining process that no reliable adjudication of guilt or
innocence could have taken place, postconviction petitioner must show:
(1) that claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and, (3) that, but for
the errors and omissions of counsel, there is reasonable probability
that outcome of proceeding would have been different.
It is axiomatic that counsel's assistance is presumed to be effective and
the petitioner has the burden of demonstrating otherwise. Commonwealth
v. Wright, 599 Pa. 270, 961 A.2d 119 (2008). In demonstrating counsel's
ineffectiveness the petitioner must prove that his underlying claim is of
arguable merit, that his counsel's performance lacked a reasonable basis and
that counsel's action or inaction caused him prejudice. Commonwealth v.
Gwynn, 596 Pa. 398, 943 A.2d 940 (2008). In order to demonstrate
prejudice, Booker must how that there is a reasonable probability but for
counsel's error, the outcome in his case would have been different.
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Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203 (2001). When it is
clear that a party asserting the ineffectiveness of his counsel has failed to
meet the prejudice prong of the ineffectiveness test, the claim may be
dismissed on that basis alone without ever making a determination as to
whether the other two prongs of the test had been met. Commonwealth v.
Rainey, 593 Pa. 67, 928 A.2d 215 (2007). Failure to meet any prong of the
test, however, would defeat an ineffectiveness claim since counsel is not
ineffective for failing to raise meritless claims. Commonwealth v.
Peterkin, 538 Pa. 455, 649 A.2d 121 (1994).
With respect to the two claims of error regarding the ineffectiveness of
Booker's trial counsel for failure to object to this Court's refusal to charge the
jury on the defense of justification and on the lesser-included offense of
manslaughter, the Court's rationale on why those underlying claims had no
merit was previously set forth in its original Opinion and that rationale has
not changed.
In his first claim of error, Booker maintains that when this
Court refused to charge the jury on justifiable self-defense, it deprived
him of a fair trial. In Commonwealth v. Antidormi, 84 A.3d 736,
754 (Pa. Super. 2014), the Court set forth the standard in reviewing
a claim that the charge given to a jury was in error.
[W]hen evaluating the propriety of jury instructions, this Court
will look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a 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. Only where there is an abuse of
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discretion or an inaccurate statement of the law is there
reversible error.
Booker's claim of error is not with respect to the charge that was given
to the jury but the failure to give a specific charge on justifiable self.
defense. In Commonwealth v. Hairston, Pa. , 84 A.ad 657, 668
(2014), the Court set forth the principle that would apply in examining
a jury instruction.
Defendants are generally entitled to instructions that they have
requested and that are supported by the evidence.
Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 607
(2007); Commonwealth v. DeMarco, 570 Pa. 263, 809 A.2d 256,
261 (2002) ("Where a defendant requests a jury instruction on a
defense, the trial court may not refuse to instruct the jury
regarding the defense if it is supported by evidence in the
record."); Commonwealth v. Browdie, 543 Pa. 337, 671 A.2d 6681
673-7 4 (1996) ("[W]e hold that a trial court shall only instruct
on an offense where the offense has been made an issue in the
case and where the trial evidence reasonably would support
such a verdict."). We have explained that the reason for this rule
is that "instructing the jury on legal principles that cannot
rationally be applied to the facts presented at trial may confuse
them and place obstacles in the path of a just verdict."
Commonwealth v. Taylor, 583 Pa. 170, 876 A.2d 916, 925-26
(2005) (quoting Commonwealth v. White, 490 Pa. 179, 415 A.2d
399, 400 (1980)). A criminal defendant must, therefore,
"establish that the trial evidence would 'reasonably support' a
verdict based on the desired charge and may not claim
entitlement to an instruction that has no basis in the evidence
presented during trial." Id. (citing Commonwealth v. Carter, 502
Pa. 4332 466 A.2d 1328, 1332-33 (1983)).
At the time of trial, the Commonwealth and Booker presented a total
of fourteen witnesses who established that Rollins was the driver of
the Escalade, Scheuermann was the front seat passenger, Brown was
the right rear passenger and Booker was the left rear passenger seated
directly behind Rollins. In between Brown and Booker was Rollins'
and Scheuermann's one year old son who was in a car seat. Not one of
these witnesses testified that Rollins had a gun and the only testimony
with respect to anybody in the car other than Booker having a gun,
was that Scheuermann had a gun a week after the shooting when she
believed she was being stalked by Booker and pulled a gun from her
purse. The investigating officers from Penn Hills Police Department
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and the Allegheny County Homicide Detectives believed that they may
have patted down Scheuermann and Brown but could not be certain of
that fact.
In order to sustain a claim for justifiable self-defense, the
evidence must establish three elements. First, that the defendant
reasonably believed that he was in imminent danger of death or
serious bodily injury and that it was necessary then and there to use
deadly force against the victim to prevent such harm to himself.
Second, that the defendant was free from fault in provoking the
difficulty which ultimately resulted in the killing of another individual
and, third, that the defendant did not violate a duty to retreat.
Commonwealth v. Samuel, 527 Pa. 298, 590 A.2d 1245 (1991).
The defense of justifiable self-defense has been codified in the Crimes
Code, Section 505, which provides as follows:
§ 505. Use of force in self-protection
(a) Use of force Justifiable for protection of the person.-
The 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
force by such other person on the present occasion.
(b) Limitations on justifying necessity for use of force.-·
(1) The use of force is not justifiable under this section:
(i) to resist an arrest which the actor knows is being made by a
peace officer, although the arrest is unlawful; or
(ii) to resist force used by the occupier or possessor of property or
by another person on his behalf, where the actor knows that the
person using the force is doing so under a claim of right to
protect the property, except that this limitation shall not apply
if:
(A) the actor is a public officer acting in the performance of his
duties or a person lawfully assisting him therein or a person
making or assisting in a lawful arrest;
(B) the actor has been unlawfully dispossessed of the property
and is making a reentry or recaption justified by section 507 of
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this title (relating to use of force for the protection of property);
or
(C) the actor believes that such force is necessary to protect
himself against death or serious bodily injury.
(2) The use of deadly force is not justifiable under this section
unless the actor believes that such force is necessary to protect
himself against death, serious bodily injury, kidnapping or
sexual intercourse compelled by force or threat; nor is it
justifiable if:
(i) the actor, with the intent of causing death or serious bodily
injury, provoked the use of force against himself in the same
encounter; or
(ii) the actor knows that he can avoid the necessity of using such
force with complete safety by retreating, except the actor is not
obliged to retreat from his dwelling or place of work, unless he
was the initial aggressor or is assailed in his place of work by
another person whose place of work the actor knows it to be.
(2.1) Except as otherwise provided in paragraph (2.2), an actor is
presumed to have a reasonable belief that deadly force is
immediately necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse compelled by
force or threat if both of the following conditions exist:
(i) The person against whom the force is used is in the process of
unlawfully and forcefully entering, or has unlawfully and
forcefully entered and is present within, a dwelling, residence or
occupied vehicle; or the person against whom the force is used is
or is attempting to unlawfully and forcefully remove another
against that other's will from the dwelling, residence or occupied
vehicle.
(ii) The actor knows or has reason to believe that the unlawful
and forceful entry or act is occurring or has occurred.
(2.2) The presumption set forth in paragraph (2.1) does not
apply if:
(i) the person against whom the force is used has the right to be
in or is a lawful resident of the dwelling, residence or vehicle,
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such as an owner or lessee;
(ii) the person sought to be removed is a child or grandchild or is
otherwise in the lawful custody or under the lawful
guardianship of the person against whom the protective force is
·used;
(iii) the actor is engaged in a criminal activity or is using the
dwelling, residence or occupied vehicle to further a criminal
activity; or
(iv) the person against whom the force is used is a peace officer
acting in the performance of his official duties and the actor
using force knew or reasonably should have known that the
person was a peace officer.
(2.3) An actor who is not engaged in a criminal activity, who is
not in illegal possession of a firearm and who is attacked in any
place where the actor would have a duty to retreat under
paragraph (2)(ii) has no duty to retreat and has the right to
stand his ground and use force, including deadly force, if:
(i) the actor has a right to be in the place where he was attacked;
(ii) the actor believes it is immediately necessary to do so to
protect himself against death, serious bodily injury, kidnapping
or sexual intercourse by force or threat; and
(iii) the person against whom the force is used displays or.
otherwise uses:
(A) a firearm or replica of a firearm as defined in 42 Pa.C.S. §
9712 (relating to sentences for offenses committed with
.firearms); or
(B) any other weapon readily or apparently capable of lethal use.
(2.4) The exception to the duty to retreat set forth under
paragraph (2.3) does not apply if the person against whom the
force is used is a peace officer acting in the performance of his
official duties and the actor using force knew or reasonably
should have known that the person was a peace officer.
(2.5) Unless one of the exceptions under paragraph (2.2) applies,
13
a person who unlawfully and by force enters or attempts to enter
an actor's dwelling, residence or occupied vehicle or removes or
attempts to remove another against that other's will from the
actor's dwelling, residence or occupied vehicle is presumed to be
doing so with the intent to commit:
(i) an act resulting in death or serious bodily injury; or
. (ii) kidnapping or sexual intercourse by force or threat.
(2.6) A public officer justified in using force in the performance
of his duties or a person justified in using force in his assistance
or a person justified in using force in making an arrest or
preventing an escape is not obliged to desist from efforts to
perform such duty, effect such arrest or prevent such escape
because of resistance or threatened resistance by or on behalf of
the person against whom such action is directed.
(3) Except as otherwise required by this subsection, a person
employing protective force may estimate the necessity. thereof
under the circumstances as he believes them to be when the
force is used, without retreating, surrendering possession, doing
any other act which he has no legal duty to do or abstaining
from any lawful action.
(c) Use of confinement as protective force.-The
justification afforded by this section extends to the use of
confinement as protective force only if the actor takes all
reasonable measures to terminate the confinement as soon as he
knows that he safely can, unless the person confined has been
arrested on a charge of crime.
(d) Definition.--As used in this section, the term "criminal
activity" means conduct which is a misdemeanor or felony, is not
justifiable under this chapter and is related to the confrontation
between an actor and the person against whom force is used.
Booker did not testify and, accordingly, his state of mind would
have to be established by circumstantial evidence. Initially Booker
maintains that the evidence presented by the Commonwealth would
establish that two guns were in that vehicle since there were two
bullet fragments that were found in the vehicle, one in the driver's door
and one in the driver's footwell. Booker maintains that the
Commonwealth's expert, Deborah Tator, who examined the bullet
14
fragments testified that they came from two different guns. A review
of her testimony clearly indicates that she never offered an opinion
that these bullets were fired from two different weapons. She testified
that she examined 'both bullet fragments and was able to make the
determination that they were of the same caliber and also suggested
that they came from two different manufacturers; however, they had
markings on both of them, which were consistent with each other.
When asked whether or not these bullets were fired from the same
gun, she could not offer an opinion on that because the second bullet
was such a small sample. The location of the bullet fragments also
militates against two guns since they were both found in the driver's
area. Dr. Shakir, who performed the autopsy, indicated that Rollins
had been shot three times from behind since the entry wounds were in
his back and the exit wounds were in his chest.
As previously noted, the only testimony, which would establish
that somebody else had another gun, was that Scheuermann possessed
a firearm a week after the shooting, for which she had a valid license.
If she in fact had a firearm, it is inexplicable why Rollins would have
been shoot since he did not possess that firearm and there was no
testimony that Booker shot at either Scheuermann or Brown,
Booker has suggested that Rollins must have had a firearm
since a month prior to this homicide, the back window of his Escalade
was shot out. In an attempt to explain why no one saw him with a
gun, Booker has suggested that Scheuermann must have taken the
gun off of him along with his personal belongings, since he did not have
any when he was examined by the paramedics and she hid them in an
effort to hide what really took place in the Cadillac Escalade. The
proposed defense of justifiable self-defense was premised not upon
facts of record but, rather, was supposition and the inferences to be
drawn from those suppositions.
In Commonwealth v. Mouzon, 617 Pa. 527, 53 A3d 738, 740-
741 (2012), the Court was presented with a similar situation when the
Trial Court rejected Mouzon's claim of self-defense because he had not
established the basis for that defense. Like Booker, Mouzon did not
testify and, accordingly, the evidence that would be the predicate for
justifiable defense, would have been primarily based upon the
Commonwealth's evidence and the circumstantial evidence drawn
therefrom.
By way of background, a claim of self-defense (or
justification, to use the term employed in the Crimes Code)
requires evidence establishing three elements: "(a) [that the
15
defendant] reasonably believed that he was in imminent danger
of death or serious bodily injury and that it was necessary to use
deadly force against the victim to prevent such harm; (b) that
the defendant was free from fault in provoking the difficulty
which culminated in the slaying; and (c) that the [defendant] did
not violate any duty to retreat." Commonwealth v. Samuel, 527
Pa. 298, 590 A.2d 1245, 1247-48 (1991). See also Commonwealth
v. Harris, 550 Pa: 92, 703 A.2d 4411 449 (1997); 18 Pa.C.S. §
505.FN2 Although the defendant has no burden to prove self-
defense, see discussion below, before the defense is properly in
issue, "there must be some evidence, from whatever sourcs.fo
justify such a finding." Once the question is properly raised, "the
burden is upon the Commonwealth to prove beyond a reasonable
doubt that the defendant was not acting in self-defense."
Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627, 630 (1977).
The Commonwealth sustains that burden of negation "if it
proves any of the following: that the slayer was not free from
fault in provoking or continuing the difficulty which resulted in
the slaying; that the slayer did not reasonably believe that [he]
was in imminent danger of death or great bodily harm, and that
it was necessary to kill in order to save [him]selftherefrom; or
that the slayer violated a duty to retreat or avoid the danger."
Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506, 507 (1980).
There was no evidence presented as to the defendant's state of mind or
what an individual's state of mind would have been had they been in
the position that Booker found himself. There was no evidence to
conclude that anyone in the Cadillac Escalade, other than Booker, had
a weapon. There was no evidence of a fight or altercation between
Booker and Rollins nor was there any evidence which one could
reasonably infer that it was then and there necessary for Booker to use
deadly force to repel an attack being perpetrated against him by his
victim. In light of Booker's failure to point to evidence from which one
could reasonably conclude that he was in fear of serious bodily injury
or death, the claim of justifiable defense was rejected and this Court
properly refused to charge on that purported defense.
Booker next maintains that this Court erred when it failed to
charge on a lesser-included offense of voluntary manslaughter.
Voluntary manslaughter! is defined in the Pennsylvania Crimes Code
as follows:
§ 2503. Voluntary manslaughter
1
18 Pa.C.S.A. §2503(a) and (b).
16
(a) General rule.--A person who kills an individual without
. lawful justification commits voluntary manslaughter if at the
time of the killing he is acting under a sudden and intense
passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently
or accidentally causes the death of the individual killed.
(b) Unreasonable belief killing justifiable.--A person who
intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the
circumstances to be such that, if they existed, would justify the
killing under Chapter 5 of this title (relating to general
principles of justification), but his belief is unreasonable.
When reviewing.the record in the instant case, it is clear that there
was no basis upon which the charge of voluntary manslaughter should
have been submitted to the jury. As previously noted, Booker's actions
were not as a result of justifiable self-defense but, rather, an
intentional killing occurred during the commission of an attempted
robbery. There is nothing in the record, which would establish that
Booker was acting under a sudden and intense passion resulting from
serious provocation or that negligence. or an accident caused the death
of Rollins. In Commonwealth v. Scott, 73 A.3d 599, 602 (Pa.
Super. 2013), the Court noted that a Court is not required to give
every instruction requested but, rather, should only instruct the jury
on the issues that have been joined between the Commonwealth and
the defense.
In reviewing a jury charge, we are to determine "whether .
the trial court committed a clear abuse of discretion or an error
of law which controlled the outcome of the case." Commonwealth
v. Brown, 911 A.2d 576, 582-83 (Pa.Super.2006). In so doing, we
must view the charge as a whole, recognizing that the trial court
is free to use its own form of expression in creating the charge.
Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa.Super.2001).
"[Our] key inquiry is whether the instruction on a particular
issue adequately, accurately and clearly presents the law to the
jury, and is sufficient to guide the jury in its deliberations." Id.
It is well-settled that "the trial court has wide discretion in
17
fashioning jury instructions. The trial court is not required to
· give every charge that is requested by the parties and its refusal
to give a requested charge does not require reversal unless the
appellant was prejudiced by that refusal." Brown, 911 A.2d at
583.
The issue of voluntary manslaughter never arose since there was
insufficient factual basis to establish that Booker killed Rollins in a
heated passion or did so with the unjustifiable belief of a right of self·
defense. This Court charged the jury based upon the facts of record
and limited those issues for its consideration to first-degree murder,
second-degree murder and third-degree murder. As with Booker's first
claim of error' this current contention had no merit.
Since the underlying claims had no merit, Booker's trial counsel could not
have been ineffective for failing to object to this Court's refusal to charge on
his claims.
Booker's next claim of error is that his trial counsel was ineffective for
failing to counsel him properly on his right to testify. The fallacy of this
claim of ei:ror is demonstrated by the colloquy that this Court undertook with
Booker with respect to his right to remain silent or to testify, which is
contained in pages two hundred twenty-six through two hundred thirty-two
of the trial transcript. In that colloquy this Court advised Booker of the
charges that had been filed against him and the maximum penalties that
could be imposed upon him should he be convicted of those charges. The
Court also advised him that under the Constitutions of the United States and
the Commonwealth of Pennsylvania, he had an absolute right to remain
silent. Booker was also advised that if he exercised his right to remain silent,
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and should he request the appropriate jury instruction, the jury would be
instructed that they could not infer guilt from his decision not to testify nor
could they draw any inference adverse to him as a result of his decision not to
testify. This Court further advised Booker that he had an absolute right to
testify and if he would testify then he would have been subjected to a cross-
examination as to any and all matters that might touch upon his direct
testimony. Booker was also advised of his right to present character
testimony and if he presented such testimony, the Commonwealth had the
right to attempt to impeach that testimony by his convictions of other crimes.
Booker was asked whether or not he had sufficient time to discuss the
question of whether or not he should he testify with his counsel and he said
that he·did and also understood that his counsel could not make this decision
for him and that his decision not to testify was a free and voluntary decision.
Booker acknowledged that he had no drugs or alcohol within forty-eight
hours prior to making this decision nor did he suffer from any mental illness
which would have prevented him from making that decision.
It is abundantly clear that Booker understood his right to testify and
his right to remain silent. It is also clear that if in fact his counsel suggested
that he· not testify, there was a legitimate reason for him not to testify since
his testimony could have been impeached by his 2000 convictions for
burglary, theft by unlawful taking and theft by deception. In addition, he
had a conviction for the unauthorized use of a motor vehicle in 2010 and in
19
.,
2011 he had a conviction for criminal attempt to commit criminal trespass.
Booker knew of these convictions and his counsel was also well aware of them
and it would have been a reasonable strategy to suggest that he not testify
since these convictions would be used to impeach any evidence that he might
have attempted to educe with respect to his state of mind and belief that he
had the defense of justification and also, whether or not he acted in the heat
of passion or an unjustifiable belief of the right of self defense which would
have entitled him to the charge of manslaughter. It is abundantly clear that
Booker was well aware of his right to testify and he, and he alone, made the
decision not to testify.
Booker's final contention of error is that his trial counsel was
ineffective for failing to present the testimony of Dr. Alice Applegate as a
witness in support of his claim of a defense of justification. In
Commonwealth v. Rivera, 631 Pa. 67, 108 A.ad 779, 791-792 (2014), the
Supreme Court set forth the elements necessary to establish the reasonable
belief that deadly force is needed to protect oneself from death or serious
bodily injury as follows:
Germane to whether the defendant reasonably believed it was necessary to kill to
protect from imminent death or great bodily harm, our case law has recognized
two requisite components to a defendant's state of mind: (1) the defendant's
subjective belief that he had an honest, bona fide belief that he was in imminent
danger, to which expert testimony is admissible; and (2) the objective
measurement of that belief, i.e., the reasonableness of that particular belief in light
of the facts as they appear, to which expert testimony is inadmissible. Sepulveda,
55 A.3d at 1125-26; Commonwealth v. Sheppard, 436 Pa.Super. 584, 648 A.2d
563, 568 (1994).
Assuming, for purposes of discussion, that there is arguable merit to Appellant's
20
..
claim, we conclude that he has failed to satisfy the remaining prongs of the
ineffectiveness test. First, we decline to hold that it was unreasonable for trial
counsel to present Appellant's testimony in support of a self-defense claim in the
absence of corroborative expert testimony. As noted cogently by the
Commonwealth, it is not beyond the purview of a layperson to comprehend that
Appellant may have reasonably believed that his life was in danger when he was
being chased by an unidentified man in the middle of the night after an altercation
in a parking lot. See N.T., Aug. 7, 2008, at 694 (where trial counsel sets forth the
defense theory in closing argument that "you have a situation of [Appellant] being
chased by a man he doesn't know, seconds after a fight and gunshots are fired").
See also e.g., Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 781 (1998)
(holding that there was no need for expert testimony to demonstrate that a victim
would experience fear and terror when he is being brutalized and suffocated).
We understand Appellant's argument that it would have furthered trial counsel's
strategy of presenting him as a credible witness if counsel had portrayed him as an
individual suffering from mental illness who, due to his PTSD, subjectively
viewed Officer Wertz's unarmed pursuit as a threat requiring the use of deadly
force. It cannot be ignored, however, that Dr. Blumberg's diagnosis of PTSD did
not exist at the time of trial, and was not rendered until 2011, five years after the
murder. Significantly, as detailed infra at 804-06 (discussing Appellant's claim of
ineffectiveness for failing to present mental health mitigation evidence during the
penalty phase of trial), Appellant, in fact, had been evaluated by a defense mental
health expert prior to trial who did not opine that Appellant suffered from PTSD
or any disorder affecting the subjective reasonableness of his belief that deadly
force was required.! Accordingly, Appellant's real contention is that he is now
dissatisfied with the conclusions of the defense mental health expert that his
counsel retained for trial. As espoused infra at 809-10, trial counsel was effective
in retaining a mental health expert prior to trial and preparing him to testify on
Appellant's behalf, and was not required to seek out a second mental health expert
to provide a different opinion more favorable to his client. Moreover, to the extent
that Appellant contends trial counsel was ineffective for failing to provide his own
mental health expert with the requisite information to enable him to conclude that
Appellant suffered from PTSD, this claim is belied by the record, as demonstrated
in our discussion of his related penalty phase claim. Id.
Additionally, the PCRA court's conclusion that no prejudice resulted from trial
counsel's failure to present expert testimony is supported by the record and is free
from legal error. Even assuming the reasonableness of Appellant's belief that he
was in imminent danger, this Court held on direct appeal that Appellant failed to
satisfy the remaining requisites for justification because he acknowledged that he
could have retreated safely, instead of employing deadly force, and was the initial
aggressor in the encounter by firing his weapon in a crowded parking lot. See
Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 55 (2012) (rejecting the claim
that trial counsel was ineffective for failing to present mental health evidence to
lessen his culpability from first degree murder to voluntary manslaughter under
21
.~
the theory of imperfect self-defense because it had already been established that
Appellant initiated the encounter and acknowledged that he could have avoided
the whole incident by retreating safely).~
There is no need to present expert testimony if a reasonable person believed
that his or her life was in danger or believed that the situation they were in
made it necessary to use deadly force to protect himself or herself.
The problem with this particular contention, however, is that there is no
basis for suggesting that he had a reasonable belief. Booker did not testify,
his state of mind was never placed at issue, the facts of the case were such
that he was the aggressor, be was the one that had the weapon and he was
the one that was attempting to commit a robbery since he placed a gun at the
victim's head initially and demanded the victim's money. What Booker was
attempting to do was establish the facts through a proposed expert since he
. decided not to testify. It should also be noted that Dr. Applegate did not
testify during the trial, she testified at sentencing and not once through her
testimony did she ever make reference to an unjustifiable belief that Booker
had in the commission of these crimes. Rather, she attempted to present
mitigating testimony with respect to his sentencing. She described him as
mentally retarded since her psychological tests revealed that he had an IQ of
fifty-five, that he was anti-social, and that he felt like he was being victimized
by other people. She also indicated that he would have a difficult time in
certain situations in establishing right from wrong.
22
( .
..
It is abundantly clear that this claim of error is not predicated upon a
claim of ineffectiveness but, rather, on Booker's desire to have that expert
testimony substituted for his own on his state of mind when he knew that his
testimony would be filled with challenges as a result of his numerous prior
convictions.
BY THE COURT:
DATED: February 2\, 2017
23