Com. v. Edwards, T.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TYREE EDWARDS, : No. 3874 EDA 2017
:
Appellant :
Appeal from the PCRA Order, October 31, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006690-2009
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 11, 2019
Tyree Edwards appeals from the October 31, 2017 order entered by
the Court of Common Pleas of Philadelphia County denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
The factual history of this case was provided by a previous panel of
this court and need not be reproduced here. See Commonwealth v.
Edwards, 82 A.3d 461 (Pa.Super. 2013) (unpublished memorandum). The
procedural history of this case is as follows: the Commonwealth charged
appellant with, inter alia, second-degree murder, attempted murder,
aggravated assault, criminal conspiracy, and possession of an instrument of
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crime.1 Following trial, the jury convicted appellant of the above offenses on
March 1, 2012. Immediately thereafter, the trial court sentenced appellant
to an aggregate term of life imprisonment. Appellant appealed the judgment
of sentence to this court on July 6, 2012. We affirmed the judgment of
sentence on June 17, 2013. Id. Appellant did not file a petition for
allowance of appeal with our supreme court.
On May 22, 2014, appellant filed a timely pro se petition pursuant to
the PCRA. The PCRA court appointed counsel to represent appellant, and on
January 25, 2016, appellant filed a counseled amended PCRA petition.
Appellant filed another amended PCRA petition on October 25, 2016.
The PCRA court filed a notice of its intent to dismiss appellant’s PCRA
petition without a hearing pursuant to Pa.R.Crim.P. 907 on September 27,
2017. On October 31, 2017, the PCRA court dismissed appellant’s petition
without a hearing.
Appellant filed a timely pro se notice of appeal to this court on
November 22, 2017. On November 27, 2017, the PCRA court ordered
appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The PCRA
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on April 9, 2018.
Appellant raises the following issues for our review:
1 18 Pa.C.S.A. §§ 2502(b), 901(a), 2702(a), 903(a)(1), and 907(a),
respectively.
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I. Did the Honorable PCRA Court err when it
dismissed [appellant’s] PCRA Petition without a
Hearing?
II. Is [appellant] entitled to a new trial as the
result of error on the part of the PCRA court?
Appellant’s brief at 3.
We begin by noting the following standard of review,
guiding our consideration of this appeal. “On appeal
from the denial of PCRA relief, our standard of
review calls for us to determine whether the ruling of
the PCRA court is supported by the record and free
of legal error.” Commonwealth v. Calhoun, 52
A.3d 281, 284 (Pa.Super. 2012) (citation omitted).
“The PCRA court's findings will not be disturbed
unless there is no support for the findings in the
certified record.” Commonwealth v. Garcia, 23
A.3d 1059, 1061 (Pa.Super. 2011) (internal
quotation marks and citation omitted), appeal
denied, [] 38 A.3d 823 ([Pa.] 2012). “The PCRA
court's factual determinations are entitled to
deference, but its legal determinations are subject to
our plenary review.” Commonwealth v. Johnson,
[] 966 A.2d 523, 532 ([Pa.] 2009) (internal
quotation marks and citations omitted).
Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012), appeal
denied, 72 A.3d 602 (Pa. 2013).
In both issues raised on appeal, appellant alleges separate allegations
of ineffective assistance on the part of his trial counsel, Thomas McGill, Esq.
Specifically, appellant alleges that Attorney McGill rendered ineffective
assistance by failing to object to the trial court’s alibi instruction to the jury
and by failing to file a motion to suppress identification evidence. (See
appellant’s brief at 7-12.)
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The governing legal standard of review of ineffective
assistance of counsel claims is well-settled:
[C]ounsel is presumed effective, and to
rebut that presumption, the PCRA
petitioner must demonstrate that
counsel's performance was deficient and
that such deficiency prejudiced him.
Strickland v. Washington, 466 U.S.
668, [] (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into
two distinct components.
Commonwealth v. Pierce, [] 527 A.2d
973, 975 ([Pa.] 1987). Accordingly, to
prove counsel ineffective, the petitioner
must demonstrate that (1) the
underlying legal issue has arguable
merit; (2) counsel's actions lacked an
objective reasonable basis; and (3) the
petitioner was prejudiced by counsel's
act or omission. Id. A claim of
ineffectiveness will be denied if the
petitioner's evidence fails to satisfy any
one of these prongs.
Commonwealth v. Busanet, [] 54 A.3d 34 [35],
45 ([Pa.] 2012) (citations formatted). Furthermore,
“[i]n accord with these well-established criteria for
review, [an appellant] must set forth and individually
discuss substantively each prong of the Pierce test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910
(Pa.Super. 2009).
Commonwealth v. Roane, 142 A.3d 79, 88 (Pa.Super. 2016), quoting
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),
order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).
In his first issue, appellant contends that Attorney McGill’s provided
ineffective assistance of counsel when he failed to object to the trial court’s
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alibi instruction to the jury.2 We must first determine if appellant’s
underlying legal issue—whether the trial court’s alibi instruction to the jury—
is of arguable merit.
[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
discretion or an inaccurate statement of the law is
there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014), quoting Commonwealth v.
Trippett, 932 A.2d 188, 200 (Pa.Super. 2007) (citation omitted).
Here, appellant avers that the trial court made two errors as it
instructed the jury on appellant’s alibi defense. First, appellant contends
that the trial court provided a “misleading” direction when it instructed that
“the alibi had to demonstrate that [appellant] was at a different location at
the precise time that the crime occurred[.]” (Appellant’s brief at 7.)
2 We note that appellant is “not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine
issue concerning any material fact and [appellant] is not entitled to post-
conviction relief, and no purpose would be served by any further
proceedings.” Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super.
2008) appeal denied, 965 A.2d 433 (Pa. 2008), quoting Commonwealth
v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal denied, 951
A.2d 1163 (Pa. 2008) (citations omitted).
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Appellant takes specific issue with the trial court’s use of the word “precise.”
(Id. at 7-8.) To further his argument, appellant poses a hypothetical of
whether the jury could determine that appellant was “at a different location
one minute before the murder occurred, and that the different location was
far away, could [it] still find [appellant] not guilty if he was not at a different
location at the precise time that the crime was being committed?” (Id. at
8.) Appellant also contends that the trial court, through its instructions to
the jury, improperly shifted the burden of proving an alibi defense to
appellant. (Id. at 8-9.) The Commonwealth counters by arguing that the
trial court’s jury instructions substantively conformed with the Pennsylvania
Suggested Standard Jury Instructions. (Commonwealth’s brief at 7.)
The trial court’s jury instructions, in relevant part, were as follows:
In this case the defendant has presented evidence of
an alibi, meaning, that he was not present at the
scene and was at another location at the precise
time that the crime charged in this case took place.
You should consider this evidence, along with all of
the other evidence in the case, in determining
whether the Commonwealth has met their burden of
proving beyond a reasonable doubt that the
defendant committed or took part in commission of
the crimes at issue.
The defendant’s evidence that he was not present by
itself or together with evidence may be sufficient to
raise a reasonable doubt of his guilt. If you have a
reasonable doubt of the defendant’s guilt, you must
find him not guilty. On the other hand, if you are
convinced beyond a reasonable doubt that he is
guilty, you should find him guilty.
Notes of testimony, 2/28/12 at 64.
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By comparison, the Pennsylvania Criminal Suggested Standard Jury
Instructions include the following alibi instruction:
In this case, the defendant has presented evidence
of an alibi, that is, that [he] was not present at the
scene or was rather at another location at the
precise time that the crime took place. You should
consider this evidence along with all the other
evidence in the case in determining whether the
Commonwealth has met its burden of proving
beyond reasonable doubt that a crime was
committed and that the defendant [himself]
committed [or took part in committing] it. The
defendant’s evidence that [he] was not present,
either by itself or together with other evidence, may
be sufficient to raise a reasonable doubt of [his]
guilt. If you have a reasonable doubt of the
defendant’s guilt, you must find [him] not guilty.
Pennsylvania Criminal Suggested Standard Jury Instructions § 3.11.
Based on our review of the trial court’s jury instructions when
compared with the Pennsylvania Criminal Suggested Standard Jury
Instructions, we find that the trial court substantively complied with the
suggested standard jury instructions and thereby did not abuse its
discretion. Accordingly, appellant’s first issue is without arguable merit.
In his second issue on appeal, appellant contends that trial counsel
was ineffective for failing to file a pre-trial suppression motion pertaining to
the identification of appellant because appellant was alleged to have worn a
bandana over his face. (Appellant’s brief at 11-12). Appellant further
alleges that “identification evidence was the sole evidence used to convict
[appellant] or at the very least [a] major part of the evidence used to
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convict.” (Id. at 12.) To further his argument, appellant cites the testimony
of two of the Commonwealth’s witnesses at trial—Curtis McKnight and
Derrick Brazelton. (Id. at 11.)
Based on our review of the record, we find that appellant fails to
establish that counsel’s failure to file a pre-trial suppression motion was an
unreasonable omission on the part of trial counsel. Indeed, both McKnight
and Brazelton’s respective testimonies severely undercut appellant’s
contentions. Both McKnight and Brazelton have known appellant for their
entire lives. (Notes of testimony, 2/23/12 at 30; 2/27/12 at 47.) McKnight
explicitly testified that he was able to recognize appellant despite the fact
that appellant was wearing a bandana over his face. (Notes of testimony,
2/23/12 at 34-35.) Brazelton testified that despite the fact that appellant
was wearing a bandana; Brazelton was able to recognize him by his eyes,
forehead, and the sound of his voice. (Notes of testimony, 2/27/12 at 47.)
As part of his second issue, appellant also argues that a photo array
presented to Brazelton, which he also used to identify appellant, was
“unnecessarily suggestive and thus in violation of constitutional norms.”
(Appellant’s brief at 11.) Appellant, however, offers no other information as
to how and/or why the photo array in question was unnecessarily
suggestive. Accordingly, we find that appellant has not met his burden in
establishing ineffective assistance of counsel.
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Order affirmed.
Lazarus, J. joins this Memorandum.
McLaughlin, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/19
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