Com. v. Lawrence, B.

J-S74002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BREON LAWRENCE :
:
Appellant : No. 1347 EDA 2018
Appeal from the PCRA Order April 17, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005326-2014
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J. Filed: January 2, 2019
Breon Lawrence appeals from the order, entered in the Court of
Common Pleas of Delaware County, denying his petition filed under the Post-
Conviction Relief Act (“PCRA”).1 Lawrence argues trial counsel was ineffective
for (1) failing to object and move for a new trial when the prosecution asked
a witness if he was Muslim, and (2) failing to request a voluntary manslaughter
charge. After our review, we affirm.
On April 11, 2014, Donald Womack, Jabri Green, Dondre Ellis, and Jahkil
Swain drove to Crosby Square in Chester, Delaware County. When they
arrived, Lawrence, who was outside of the vehicle, leaned into the vehicle and
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1 42 Pa.C.S.A. § 9541-9546.
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asked the victim, Swain, who was in the passenger’s seat, “[i]s it beef or is it
squashed?”2 N.T. Trial, 8/5/15, at 57. Lawrence asked the victim this
approximately ten times. He then asked the victim if he wanted to fight, to
which the victim replied that he does not fight. Lawrence again asked, “What,
you think you can’t die? . . . I just want to know if it’s beef or if it’s squashed.”
Id. at 62-63. The victim responded with an obscenity and, when pressed
again, stated, “It’s whatever.” Id. at 61-63. After the victim’s response,
Lawrence pulled out a gun, ran in front of the car, and fired a shot, killing
Swain.
Multiple witnesses identified Lawrence as the shooter and police officers
recovered the murder weapon from Lawrence’s bedroom. On August 5, 2015,
a jury found Lawrence guilty of murder in the first degree,3 recklessly
endangering another person,4 possession of an instrument of crime,5 and
persons not to possess a firearm.6
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2According to common street talk in Chester City, a “beef” means “problems”
and “squashed” means let’s be friends again, let’s not beef no more.” N.T.
Trial, 8/5/15, at 57. Squashed in relation to a beef means “let bygones be
bygones” and [l]et’s shake hands and make up.” Id. at 60.
3 18 Pa.C.S.A. § 2502.
4 18 Pa.C.S.A. § 2705.
5 18 Pa.C.S.A. § 907.
6 18 Pa.C.S.A. § 6105.
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During trial, counsel for the Commonwealth presented several
witnesses, including Dondre Ellis, a friend of Lawrence, who was a passenger
in the vehicle during the shooting. During direct examination, the
Commonwealth asked Ellis where he and the victim were going before the
shooting took place. The following exchange occurred between Ellis and the
assistant district attorney:
Q: Okay. When you guys came back up from the mall, where
were you headed? Where were you guys going, you and Jahkil?
A: I got dropped off.
Q: Okay. Where'd you get dropped off at?
A: (inaudible).
Q: I'm sorry, say that again?
A: I went to go pray.
Q: You went to a parade?
A: Wanted to go pray.
Q: Party?
A: Pray.
Q: Oh, pray, I'm sorry. I couldn't -- I -- you're Muslim, correct?
A: Yes.
Q: Where did -- so when you got dropped off, whoever this third
person was that was driving, where were you at in the car when
they dropped you off? Were you in the back?
N.T. Trial, 8/5/16, at 240-41.
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On September 11, 2015, the trial court sentenced Lawrence to life
imprisonment without the possibility of parole. Lawrence filed a timely appeal
and this Court affirmed Lawrence’s judgment of sentence on June 24, 2016.
Commonwealth v. Lawrence, 153 A.3d 1117 (Pa. Super. 2016).
Lawrence filed a timely pro se PCRA petition on April 26, 2017. The
PCRA court appointed counsel on April 28, 2017, but on June 26, 2017, private
counsel entered his appearance and filed an amended PCRA petition on July
20, 2017. On August 15, 2017, the Commonwealth filed a response, and on
August 24, 2017, PCRA counsel filed a reply. The court held an evidentiary
hearing on March 15, 2018, and dismissed Lawrence’s PCRA petition. On
appeal, Lawrence raises the following two issues:
1. Did not the PCRA court err in denying Lawrence a new trial
where the prosecutor, at trial, asked a close friend of Lawrence
if he was a “Muslim” and trial counsel had no reasonable basis
for failing to object and move for a mistrial?
2. Did not the PCRA court err in failing to grant Lawrence a new
trial where Lawrence’s trial counsel unjustifiably failed to
request a voluntary manslaughter charge when the shooting
was the immediate result of and was in fact during a heated
argument?
Appellant’s Brief, at 4.
Our standard of review on appeal from the denial of a PCRA petition 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
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Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, 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. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal
citations omitted).
In his first issue, Lawrence argues that the PCRA court erred in finding
counsel was not ineffective for failing to object and move for a mistrial when
the Commonwealth asked a witness and friend of Lawrence if he was a Muslim.
We find no error.
To prevail on a claim alleging counsel’s ineffectiveness under the PCRA,
an appellant must demonstrate the following: (1) the underlying claim is of
arguable merit; (2) counsel’s course of conduct was without a reasonable
basis designed to effectuate his client’s interest, and (3) appellant was
prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable probability
that but for the act or omission in question the outcome of the proceeding
would have been different. Commonwealth v. Bracey, 795 A.2d 935, 942
(Pa. 2001); Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).
The Pennsylvania Judicial Code provides:
(b) Religious belief may not be shown.-- No witness shall be
questioned, in any judicial proceeding, concerning his religious
belief; nor shall any evidence be heard upon the subject, for the
purpose of affecting either his competency or credibility.
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42 Pa.C.S. § 5902. The Pennsylvania Supreme Court has stated that there
is no per se rule requiring a finding of reversible error if there is a violation of
the statute. Rather, “whether evidence admitted in violation of a statute
actually deprives a defendant of his right to a fair trial must be viewed in light
of attendant circumstances.” Commonwealth v. Eubanks, 512 A.2d 619,
623 (Pa. 1986) (quoting Commonwealth v. Mimms, 385 A.2d 334, 336 (Pa.
1987) (emphasis added)). An isolated comment in violation of the statute is
not an automatic entitlement of relief. Commonwealth v. Allen, 361 A.2d
393 (Pa. Super. 1976). Rather, the record must demonstrate that the
violation deprived the defendant of a fair trial. Eubanks, supra.
In Allen, appellant argued the trial court erred in not declaring a mistrial
when an officer testified that the co-defendant stated that he worked on a
“Muslim Truck” with the appellant. Allen, 361 A.2d at 397-98. The testimony
was in response to a question regarding the statement a co-defendant gave
to the police about his occupation. In his argument, appellant claimed “any
reference to ‘Muslims’ was highly prejudicial based upon the theory that white
jurors would automatically be turned against members of the Nation of Islam
or Black Muslim religion.” Id. at 398. This Court, finding no error, reasoned
that the reference was an isolated instance of the word “Muslim” in a lengthy
trial record. We stated: “[W]e are not convinced that a jury would render an
unfair verdict merely because it was aware that a defendant, whose own
religion was undisclosed, worked on a truck operated by a religious sect, even
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if we were to accept the premise that the particular sect was controversial to
certain segments of the citizenry.” Id.
In contrast, in Eubanks, the Supreme Court found reversible error
because the prosecution continuously asked the witness improper questions
about his religion in an attempt to discredit him even after the court sustained
objections regarding such. The Court stated: “[A] new trial is required
because the questioning was irrelevant to any issue in the case and because
the improper inquiry concerning Eubanks' religious beliefs continued even
after the court sustained objections to this type of inquiry, gave an instruction,
and ordered the improper questions stricken from the record.” Eubanks, 512
A.2d at 623.
Here, like in Allen, and unlike in Eubanks, counsel did not persist in
asking improper questions about the witness’s religion in an attempt to
discredit him; rather, this was simply one isolated reference in a lengthy
transcript. After a review of the record, we are not convinced this single
reference deprived Lawrence of a fair trial. Counsel, therefore, was not
ineffective for failing to object to the prosecutor’s question.
In his second issue, Lawrence argues that the PCRA court erred in failing
to grant Lawrence a new trial when his counsel “failed to request a voluntary
manslaughter charge when the shooting was the immediate result of and was
in fact during a heated argument.” Appellant’s Brief, at 9. Lawrence is not
entitled to relief on this claim.
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The Pennsylvania Crimes Code provides for a conviction of voluntary
manslaughter under the following two circumstances: (1) where the defendant
acted under a sudden and intense passion resulting from a serious
provocation; or, alternatively, (2) where the defendant knowingly and
intentionally killed an individual under the unreasonable belief that the killing
was justified. 18 Pa.C.S. § 2503(a), (b). See Commonwealth v. Busanet,
54 A.3d 35, 52 n.11 (Pa. 2012).
Here, Lawrence has not asserted that he intentionally killed the victim
under the unreasonable belief that the killing was justified. Busanet, supra.
Thus, the question is whether Lawrence was “acting under a sudden and
intense passion” resulting from serious provocation by the victim. 18 Pa.C.S.
§ 2503(a). The test for provocation is “whether a reasonable [person]
confronted by the same series of events, would become impassioned to the
extent that his mind would be incapable of cool reflection.” Commonwealth
v. Kim, 888 A.2d 847, 853 (Pa. Super. 2005) (citing Commonwealth v.
Galloway, 485 A.2d 776, 783 (Pa. Super. 1984)). “[O]nly where an
instruction is requested and only if the evidence supports ‘heat of passion’
voluntary manslaughter, is an instruction thereon required.”
Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996).
To receive a “heat of passion” voluntary manslaughter instruction, the
petitioner must demonstrate that there was evidence in the record that
supports such an instruction, specifically, evidence that demonstrates that at
the time of the killing, the petitioner acted under a sudden and intense passion
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resulting from serious provocation from the victim. Commonwealth v.
Sanchez, 82 A.3d 943, 979 (Pa. 2013). The ultimate test to determine
whether the provocation by the victim was sufficient is, “whether a reasonable
man who was confronted with the provoking events would became
impassioned to the extent that his mind was incapable of cool reflection.”
Commonwealth v. Hutchinson, 25 A.3d 277, 314–15 (Pa. 2011) (quoting
Commonwealth v. Thornton, 431 A.2d 248, 252 (Pa. 1981)). Neither
words of provocation nor slight assault are sufficient to reduce murder to
manslaughter. Commonwealth v. Sheppard, 648 A.2d 563, 566 (Pa.
Super. 1994).
Here, there is nothing in the record to support a finding that a
reasonable person “confronted by the same series of events, would become
impassioned to the extent that his mind would be incapable of cool
reflection.” Kim, supra. In order to support a charge of voluntary
manslaughter, the victim must have provoked the passion. Here, Lawrence
was the party attempting to provoke a response from the victim, as he
repeatedly asked the victim whether the issue was “squashed” or “beef.” N.T.
Trial, 8/5/15, at 61. The victim did not answer Lawrence. Lawrence then
asked the victim again and the victim responded by spitting on him and telling
Lawrence to “suck his d**k.” Id. at 61. Lawrence again asked the victim if
the issue was “beef” or “squashed” and the victim was silent. Lawrence then
asked the victim whether he wanted to fight, and the victim responded that
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he does not fight. Lawrence responded, “what you think you can’t die? . . . I
just want to know if it’s beef or if it’s squashed.” Id. at 62-63. The victim
responded with “it’s whatever.” Id. at 63. Lawrence then pulled out a gun
and began firing, killing the victim.
The mere fact that the victim made an obscene retort to Lawrence’s
persistent questioning is insufficient to warrant a “heat of passion” instruction
under the law. See Sheppard, supra at 566 (serious provocation not
established when victim struck defendant’s brother and arguments ensued
between defendant and victim); Commonwealth v. Cartagena, 416 A.2d
560, 563 (Pa. Super. 1979) (punch by victim was not legally adequate
provocation for defendant to stab victim). There is no evidence in the record
to suggest that, at the time of the murder, Lawrence had been “so provoked
by the victim as to be compelled by passion beyond the control of his reason.”
Commonwealth v. Hutchinson, 25 A.3d 277, 314 (Pa. 2011). Counsel,
therefore, was not ineffective for failing to request the instruction. Bracey,
supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/2/2019
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