Com. v. Barone, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PAUL BARONE, JR. :
:
Appellant : No. 1528 WDA 2018
Appeal from the PCRA Order Entered October 1, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006683-2013
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
DISSENTING MEMORANDUM BY COLINS, J.: FILED OCTOBER 24, 2019
Because I disagree with the learned majority’s conclusion that Appellant
is unable to show prejudice from his trial counsel’s failure to request an
imperfect self-defense voluntary manslaughter instruction, I respectfully
dissent.
Appellant was convicted of first-degree murder for killing a man in a
shootout in a parking lot outside a club. At his jury trial, Appellant did not
dispute that he fired a gun multiple times in the direction of the victim, but
testified that he got the gun from a friend’s car when he saw other people with
guns by the car where the victim was sitting and that he was being shot at
and fired the gun because he was in fear of his life and the lives of his friends
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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that were with him. N.T., 8/20/15, at 102-08, 121-28; N.T., 8/18/15, at 134-
36. The evidence at trial showed that the bullet that struck the victim in the
head was from a .40-caliber gun and that Appellant’s .40-caliber gun was fired
18 times. N.T., 8/19/15, at 282-88, 296-99, 375-76; N.T., 8/20/15, at 58,
73-76. The evidence at trial also showed that during the shootout, a 9-mm
gun was fired 5 times and an assault rifle was fired 8 times and that a fourth
firearm, a loaded handgun that did not match any of the cartridge casings of
the weapons that were fired, was found at the scene. N.T., 8/19/15, at 304,
311-12, 327-28, 330, 346-48; N.T., 8/20/15, at 43, 56-57, 59, 71-72.
The trial court concluded that the evidence was sufficient to warrant a
jury instruction on self-defense and defense of others and instructed the jury
that Appellant could not be found guilty of any crime with respect to the
victim’s death unless the Commonwealth proved either that Appellant “did not
reasonably believe that he or another was in immediate danger of death or
serious bodily injury” or “knew that he could avoid the necessity of using
deadly force with complete safety by retreating himself, trying to cause the
person he sought to protect to retreat and failing to do so.” N.T., 8/20/15, at
137, 180-84, 187-89. In this instruction, the trial court specifically directed
the jury that Appellant was not entitled to this defense if it found that Appellant
“actually believed he needed to use” deadly force, but “his belief was
unreasonable in light of all of the other circumstances known to him.” Id. at
182-83. Appellant’s trial counsel did not request that the jury be instructed
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on imperfect self-defense or voluntary manslaughter and the jury was not
instructed that Appellant could be convicted only of voluntary manslaughter if
it found that he intentionally or knowingly killed based on an unreasonable
belief that deadly force was necessary to protect himself or others from
immediate danger of death or serious injury.
As the majority correctly notes, Appellant can prevail on his claim of
ineffective assistance of counsel only if he proves all three of the following
elements: (1) that the underlying legal claim is of arguable merit; (2) that
counsel’s action or inaction had no reasonable basis designed to effectuate his
client’s interests; and (3) that he suffered prejudice as a result of counsel’s
action or inaction. See, e.g., Commonwealth v. Mason, 130 A.3d 601, 618
(Pa. 2015).
The first of these elements is plainly satisfied. Appellant testified that
he got and fired the gun after guns had been drawn and fired by other people
in the parking lot outside the club and that he believed that one of his friends
was in the parking lot and had not made it to a position of safety, and the trial
court concluded that the evidence was sufficient to warrant a jury instruction
on self-defense and defense of others. N.T., 8/20/15, at 102-08, 121-28,
137. As the majority correctly states, the only difference between the
defenses of self-defense and imperfect self-defense is that actual, but
unreasonable, belief that deadly force is necessary is sufficient to support
imperfect self-defense and a verdict of voluntary manslaughter rather than
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first-degree murder. 18 Pa.C.S. § 2503(b); Commonwealth v. Truong, 36
A.3d 592, 599 (Pa. Super. 2012) (en banc). The reasonableness of Appellant’s
belief that deadly force was necessary was at issue in the trial, as the
Commonwealth specifically argued to the jury that Appellant’s belief was
unreasonable because the friend that Appellant was protecting was in fact out
of danger. N.T., 8/20/15, at 155-56.
It also cannot be concluded on this record, where no hearing was held
on the PCRA petition, that trial counsel had a reasonable basis for failing to
request an imperfect self-defense instruction. A reasonable basis exists where
trial counsel has made a strategic decision to omit such an instruction to
increase the likelihood of outright acquittal. See Commonwealth v.
Ulatoski, 407 A.2d 32, 34 (Pa. Super. 1979). There is nothing in the record,
however, that indicates or supports a conclusion that trial counsel made any
such decision. Appellant in his PCRA petition alleged that trial counsel simply
neglected to consider whether to request an imperfect self-defense jury
instruction and proffered evidence in support of that claim. Failure to consider
an issue is not a strategic choice that defeats an ineffective assistance of
counsel claim. Commonwealth v. Williams, 141 A.3d 440, 463-65 (Pa.
2016).
The majority holds that Appellant could not prove ineffective assistance
solely on the ground that he could not prove prejudice because there was
evidence that Appellant had opportunities to retreat and, therefore, the
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necessary elements of both self-defense and imperfect self-defense could not
be satisfied. I cannot agree that we can determine that the jury based its
verdict on the ability to safely retreat or that we or the trial court can conclude
that Appellant cannot show prejudice.
While the test for prejudice on a PCRA petition is whether there is a
reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different, this does not require proof that the
defendant would more likely than not have been acquitted or convicted of a
lesser offense. Commonwealth v. Jones, 210 A.3d 1014, 1018-19 (Pa.
2019); Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009);
Commonwealth v. Stewart, 84 A.3d 701, 707, 714-15 & n.5 (Pa. Super.
2013) (en banc). Rather, a reasonable probability of a different result
sufficient to show prejudice is a probability sufficient to undermine confidence
in the outcome. Jones, 210 A.3d at 1019; Commonwealth v. Postie, 200
A.3d 1015, 1023 (Pa. Super. 2018) (en banc); Stewart, 84 A.3d at 707.
Where counsel’s error or neglect has involved a central issue before the
jury, this Court has held that prejudice was shown and upheld or ordered a
new trial based on ineffective assistance of counsel without requiring or
reaching any conclusion that the jury’s verdict would probably have been
different. Stewart, 84 A.3d at 714-15 (prejudice was shown from counsel’s
failure to interview alibi witness, who was defendant’s fiancée, where
defendant’s defense was that he was with her at the time of the murder and
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the only evidence that defendant committed murder consisted of one witness’s
testimony, defendant was not required to demonstrate that jury would have
believed alibi witness at trial); Commonwealth v. Buksa, 655 A.2d 576,
583-87 & n.6 (Pa. Super. 1995) (defendant was entitled to new trial based on
counsel’s failure to request jury instruction on self-defense where both
defendant and victim testified that victim was cut with a knife during a
struggle, court rejected argument that requirements of self-defense could not
be satisfied on ground that retreat issue was for the jury to decide);
Commonwealth v. Simmons, 647 A.2d 568, 570 (Pa. Super. 1994) (failure
of counsel to request instruction concerning identification testimony was
prejudicial where the only evidence tying defendant to the scene of the murder
was one witness’s identification of defendant). An error of counsel that results
in a conviction with a substantially higher sentence constitutes prejudice.
Commonwealth v. Bickerstaff, 204 A.3d 988, 997 (Pa. Super. 2019)
(prejudice was shown where counsel’s error increased defendant’s maximum
sentence from 20 to 40 years).
Here, the main issue at trial was Appellant’s defense that he acted to
protect himself and his friends from being shot and there was undisputed
evidence that other persons at the scene had guns and fired them. The jury’s
verdict could have been based on a finding that Appellant’s testimony was not
credible and that he was the aggressor who started the shootout or on a
finding that Appellant and his friends could have retreated safely, neither of
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which would have been affected by an imperfect self-defense instruction. The
jury’s verdict, however, could also have been based on the argument that the
Commonwealth made in its closing that Appellant’s belief that he and his
friends were in danger was unreasonable and the trial court’s instruction that
actual but unreasonable belief that deadly force was necessary would not
support self-defense. N.T., 8/20/15, at 155-56, 182-83. In that case, a jury
instruction would have resulted in a different and significantly more favorable
outcome for Appellant, a conviction of voluntary manslaughter subject to a
maximum sentence of 10 to 20 years’ imprisonment, 18 Pa.C.S. §§ 1103(1),
2503(b), (c); 42 Pa.C.S. § 9756(b), rather than a first-degree murder
conviction and a sentence of life imprisonment without the possibility of
parole.
I do not believe that this Court or the trial court can confidently conclude
that the outcome of Appellant’s trial was unaffected by counsel’s failure to
request an imperfect self-defense manslaughter instruction. Given the
Commonwealth’s argument that Appellant’s belief was unreasonable, the trial
court’s instructions, and the fact that gunfire was involved, it cannot be said
that the jury rejected or was required to reject self-defense on the ground
that Appellant and his friends could have safely retreated by getting inside a
car. Indeed, the victim was inside a car when he was fatally struck by gunfire.
N.T., 8/18/15, at 134-36; N.T., 8/19/15, at 306.
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Because I cannot conclude that the record precludes Appellant from
proving all the elements of ineffective assistance of counsel, I would vacate
the dismissal of Appellant’s PCRA petition and remand this case for a hearing
on the PCRA petition on the issue of whether trial counsel had a reasonable
basis for failing to request an imperfect self-defense voluntary manslaughter
jury instruction.
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