Com. v. Harris, T.

J-S93042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRIRK HARRIS,
Appellant No. 689 EDA 2016
Appeal from the PCRA Order November 6, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004135-2012
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.:FILED FEBRUARY 07, 2017
Appellant, Tyrirk Harris, appeals pro se and nunc pro tunc1 from the
denial of his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
The PCRA court granted Appellant leave to appeal nunc pro tunc because
notice of his PCRA petition’s denial was sent to counsel, who previously had
been granted leave to withdraw. Because Appellant did not receive the
notice due to a breakdown in the court’s operations, the court found that
appeal nunc pro tunc was warranted. We agree. See Commonwealth v.
Stock, 679 A.2d 760, 764 (Pa. 1996) (“Reading the civil cases and criminal
cases together, the principle emerges that an appeal nunc pro tunc is
intended as a remedy to vindicate the right to an appeal where that right
has been lost due to certain extraordinary circumstances.”) (citations
omitted); see also Fischer v. UPMC Northwest, 34 A.3d 115, 120 (Pa.
Super. 2011) (“Generally, a [t]rial [c]ourt may grant an appeal nunc pro
tunc when a delay in filing is caused by extraordinary circumstances
(Footnote Continued Next Page)
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On February 1, 2013, a jury convicted Appellant of murder of the third
degree and possession of an instrument of crime.2 The charges related to
Appellant’s fatal shooting of a neighbor who complained to him about
Appellant’s dog entering his yard and making a mess. The trial court
sentenced Appellant to an aggregate term of incarceration of not less than
twenty nor more than forty years. On February 21, 2014, a panel of this
Court affirmed the judgment of sentence. (See Commonwealth v. Harris,
97 A.3d 810 (Pa. Super. 2014) (unpublished memorandum)). Our Supreme
Court denied further review on June 12, 2014. (See Commonwealth v.
Harris, 94 A.3d 1008 (Pa. 2014)).
On June 15, 2015, Appellant filed a timely pro se PCRA petition.3
Appointed counsel filed a motion to withdraw and a Turner/Finley4 no merit
letter on September 17, 2015. On October 1, 2015, the court filed notice of
its intention to dismiss Appellant’s petition without a hearing. See
_______________________
(Footnote Continued)
involving fraud or some breakdown in the court’s operations through a
default of its officers.”) (citation and internal quotation marks omitted).
2
18 Pa.C.S.A. §§ 2502(c) and 907, respectively.
3
On July 29, and August 14, 2015, Appellant filed amended pro se PCRA
petitions. Although Appellant did not seek permission to file these
amendments, the PCRA court and counsel addressed the issues raised
therein.
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Pa.R.Crim.P. 907(1).5 The PCRA court denied the petition and granted
counsel’s motion to withdraw on November 6, 2015. Appellant timely
appealed.6
As a prefatory matter, although this Court is willing to
construe liberally materials filed by a pro se litigant, pro se
status generally confers no special benefit upon an appellant.
Accordingly, a pro se litigant must comply with the procedural
rules set forth in the Pennsylvania Rules of the Court. This Court
may quash or dismiss an appeal if an appellant fails to conform
with the requirements set forth in the Pennsylvania Rules of
Appellate Procedure. [See] Pa.R.A.P. 2101.
Commonwealth v. Freeland, 106 A.3d 768, 776-77 (Pa. Super. 2014)
(case citations omitted).
In this case, Appellant did not include a statement of questions
involved in his brief. (See Appellant’s Brief, at i-iii, 2-12); see also
Pa.R.A.P. 2111(a)(4), 2116(a). “The rule requiring a statement of questions
involved is to be considered in the highest degree mandatory, admitting of
no exception; ordinarily no point will be considered which is not set forth in
the statement of questions involved or suggested thereby.”
Commonwealth v. Maris, 629 A.2d 1014, 1016 (Pa. Super. 1993) (citing
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5
According to the PCRA court’s opinion, Appellant responded to the Rule 907
notice pro se on October 19, 2015. (See PCRA Court Opinion, 11/06/15, at
2). However, the response is not on the docket.
6
The PCRA court did not order, and Appellant did not file, a statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). The court did not
file a Rule 1925(a) opinion. See Pa.R.A.P. 1925(a).
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Pa.R.A.P. 2116(a)) (internal quotation marks omitted). Therefore, it would
be within the province of this Court to dismiss the claims raised in the
argument section of Appellant’s brief. However, “in the interest of justice we
[will] address the arguments that [we] can reasonably [] discern[.]”
Freeland, supra at 777.
Appellant raises three claims of trial counsel’s ineffectiveness for our
review. (See Appellant’s Brief, at 6-12). Specifically, he claims that counsel
was ineffective for failing to object to the trial court’s “giving the jury the
option of adjudicating [him] guilty of any degree of murder other than
first[]”; for “facilitating [] the suppression of the two knives;” and for
“facilitating the Commonwealth’s use of slanderous testimonial evidence
about [Appellant] from Officer Brian Gordon[.]” (Appellant’s Brief, at 6, 8,
10). Appellant’s claims lack merit.
Our standard of review for an order denying PCRA relief is well-settled:
This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review
is limited to the findings of the PCRA court and the evidence of
record and we do not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Similarly, 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 is
plenary. . . .
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citations,
quotation marks, and brackets omitted).
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[I]n order to obtain relief based on [an
ineffective assistance of counsel (“IAC”) ] claim, a
petitioner must establish: (1) the underlying claim
has arguable merit; (2) no reasonable basis existed
for counsel’s actions or failure to act; and (3)
petitioner suffered prejudice as a result of counsel’s
error such that there is a reasonable probability that
the result of the proceeding would have been
different absent such error.
A failure to satisfy any prong of the test for ineffectiveness
will require rejection of the claim. Trial counsel is presumed to
be effective, and a PCRA petitioner bears the burden of pleading
and proving each of the three factors by a preponderance of the
evidence.
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015), appeal
denied, 141 A.3d 479 (Pa. 2016) (citations omitted).
Here, Appellant first claims that trial counsel’s failure to object to “the
[c]ourt’s giving the jury the option of adjudicating [him] guilty of any degree
of murder other than first-degree” violated his constitutional rights.
(Appellant’s Brief, at 6; see id. at 6-7). Appellant maintains that, because
the information charged him with first degree murder, and the assistant
district attorney represented at the preliminary hearing that there was
enough evidence to hold Appellant over on that charge, “the third-degree
murder conviction achieved in this case ran afoul of [his] constitutional
rights to notice of charges, jury trial, burden of proof, post-trial rights, and
effective assistance of counsel.” (Id. at 6). This issue lacks merit.
It is well-settled that “[t]he purpose of the information is to advise the
accused of the allegations and the crimes charged, to give sufficient notice
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to allow the opportunity to prepare a defense, and to define the issues for
trial. The grading of the offense is not an element thereof[.]”
Commonwealth v. Kisner, 736 A.2d 672, 674 (Pa. Super. 1999) (citation
omitted). In other words, “[a]n information need not specify a degree of
murder[.]” Commonwealth v. Chambers, 852 A.2d 1197, 1199 (Pa.
Super. 2004), appeal denied, 871 A.2d 188 (Pa. 2005).
In this case, a review of the information reveals that the
Commonwealth charged Appellant with murder generally, pursuant to 18
Pa.C.S.A. § 2502, not murder in the first degree. (See Information,
4/11/12, at 1). Specifically, it stated that Appellant:
Intentionally and with malice caused the death of another human
being; and/or while engaged as a principal or as an accomplice
in the perpetration of a felony, with malice caused the death of
another human being intentionally, knowing[ly], recklessly, or
negligently; and/or with malice caused the death of another
human being knowingly, recklessly, or negligently.
(Id.).
We conclude that this information filed by the Commonwealth placed
Appellant on notice of the murder charge against him. (See id.).
Therefore, the PCRA court properly found that counsel was not ineffective for
failing to raise a meritless objection about Appellant’s conviction of third
degree murder. Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa.
2006) (“Counsel will not be deemed ineffective for failing to raise a meritless
claim.”) (citation omitted); see Rigg, supra at 1084. Appellant’s first issue
lacks merit.
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In his second issue, Appellant maintains that trial counsel was
ineffective because he “facilitat[ed] . . . the suppression” of two knives found
on the victim. (Appellant’s Brief, at 8; see id. at 8-9). Specifically, he
argues that, if the knives had been produced, it would be “reasonable to
conclude” that his use of deadly force was justified. (Id. at 9). This issue
lacks merit.
In addressing this issue, the PCRA court observed:
Trial counsel cross-examined both Officers Robert Flade and
Steven Hancock, where he elicited that the decedent was
carrying two knives at the time of the murder. While [Appellant]
testified that he killed the decedent in self-defense, during cross-
examination, he stated that he did not see the decedent carry a
knife at the time of the murder. . . . [T]he jury was under no
obligation to accept [Appellant’s] flawed justification defense
and, in fact, chose not to. This [c]ourt agrees [Appellant’s]
argument is without merit.
(PCRA Ct. Op., at 9) (record citations omitted). We agree.
Our review of the record confirms that the jury knew that the victim
was carrying knives at the time of his murder because Appellant’s counsel
thoroughly cross-examined the officers about them. (See N.T. Trial,
1/30/13, at 30, 34, 40, 46-47, 64). In fact, Appellant testified that he had
not had any prior confrontations with the victim, and did not see him with
any weapons on the day of the incident. (See id. at 140; N.T. Trial,
1/31/13, at 22-23, 36). Therefore, Appellant has failed to establish that he
was somehow prejudiced by the fact that the jury did not see the knives
themselves. The PCRA court properly found that trial counsel was not
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ineffective on this basis. See Rigg, supra at 1084. Appellant’s second
issue lacks merit.
In his third claim, Appellant maintains that counsel was ineffective for
failing to object to Officer Brian Gordon’s testimony because it was
impermissible testimony about his character. (See Appellant’s Brief, at 10-
11). This issue lacks merit because it is belied by the record, which reflects
that trial counsel did, in fact, object and move for a mistrial, which a panel
of this Court found the trial court properly denied.
Specifically, this Court observed:
“The often-stated rule in Pennsylvania governing evidence
of other crimes is that such evidence is not admissible solely to
show a defendant’s bad character or propensity for continuing
criminal acts.” Commonwealth v. Ragan, 645 A.2d 811, 819
(Pa. 1994) (citation omitted). “However, not all references
which may indicate prior criminal acts warrant reversal.” Id. [].
“Mere passing references to prior criminal activity will not require
reversal unless the record illustrates definitively that prejudice
resulted from the reference.” Id. (citation and internal
quotations omitted). “An immediate curative instruction to the
jury may alleviate any harm to the defendant that results from
reference to prior criminal conduct.” Commonwealth v.
Morris, 519 A.2d 374, 377 (Pa. 1986) [(citations omitted)].
The testimony of Officer Gordon in the instant case was an
unexpected response to a proper question[.] . . . As part of its
rebuttal case, the Commonwealth called Officer Gordon and
asked him to state whether Appellant’s reputation for being
peaceful and law abiding was good, bad, or beyond the officer’s
knowledge. Phrased as such, the question asked for permissible
testimony regarding Appellant’s general reputation and in a
manner to avoid improper references to specific instances of
criminal conduct. Officer Gordon stated that he “locked
[Appellant] up for─[,]” but was interrupted [by defense counsel’s
objection] and did not state the reason for the arrest or make
reference to a specific crime charged. (See N.T. Trial, 1/31/13,
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at 83). The trial court immediately directed the jury to disregard
the comment and struck it from the record. Moreover, the trial
court told the jury that the charges briefly alluded to had been
withdrawn. (See id. at 88-89). . . . Thus, the record does not
definitively illustrate that prejudice resulted from the passing
reference to unspecified criminal conduct inadvertently elicited
from Officer Gordon. Accordingly, the trial court did not abuse
its discretion in denying Appellant’s request for a mistrial. . . .
(Commonwealth v. Harris, No. 1473 EDA 2013, unpublished
memorandum at *6-7 (Pa. Super. filed Feb. 21, 2014) (some record citation
formatting provided)).
Based on the foregoing, Appellant’s claim that counsel was ineffective
for not objecting to Officer Gordon’s testimony lacks merit, both because it is
belied by the record, and because this Court already concluded that the trial
court correctly found that Appellant was not prejudiced by the passing
reference immediately followed by a curative instruction. Therefore, the
PCRA court properly denied Appellant’s petition. See Spotz, supra at 1210;
Rigg, supra at 1084.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2017
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