Com. v. Reed, E.

J-S20041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIK LAMONT REED, JR. :
:
Appellant : No. 268 WDA 2022
Appeal from the PCRA Order Entered February 23, 2022
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000087-2016
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: DECEMBER 14, 2022
Appellant, Erik Lamont Reed, Jr., appeals from the order entered in the
Westmoreland County Court of Common Pleas, which dismissed his first
petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court set forth the relevant facts and procedural history of
this case as follows:
[Appellant] was charged with counts of Murder of the First
Degree, 18 Pa.C.S. § 2502(a), Murder of the Third Degree,
18 Pa.C.S.A. § 2502(c), and Firearms not to be Carried
without a License, 18 Pa.C.S.A. § 6106(a)(1). This arose
out of his shooting of Donald Williams [(“Victim”)] during a
melee between two (2) families in the City of Arnold,
Westmoreland County on December 15, 2015. At the time
of the shooting, [Appellant] was eighteen (18) years of
age… [H]is jury trial … commenced on August 14, 2017.
[Appellant], represented by Attorney Ralph Karsh, Esq.
[(“Trial Counsel”)], testified and acknowledged that he killed
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1 42 Pa.C.S.A. §§ 9541-9546.
J-S20041-22
[Victim]. However, he asserted that he was justified, as he
was defending his stepfather, Kahil Dandridge
[(“Stepfather”)], from [Victim]’s aggression. Specifically,
he claimed that [Victim] was choking [Stepfather] when he
shot him. The jury did not agree with those assertions, and
[Appellant] was convicted of Murder of the First Degree and
Firearms Not to be Carried without a License. Judge
Hathaway sentenced him to life imprisonment without the
possibility of parole on November 9, 2017.
Immediately following sentencing, [Trial Counsel] withdrew
his appearance, and Judge Hathaway appointed Timothy
Andrews, Esq. to represent [Appellant] during post-trial and
appellate proceedings. Attorney Andrews filed post-
sentence motions on November 15, 2017, and amended
post-sentence motions on January 29, 201[8]. He argued
that there was insufficient evidence upon which to convict
[Appellant] of Murder in the First Degree and, in the
alternative, that the verdict was against the weight of the
evidence.
In her “Opinion and Order of Court” dated March 1, 2018,
Judge Hathaway found that there was sufficient evidence to
establish the elements of Murder in the First Degree and
denied [Appellant’s] motions. In support of her finding, she
stated the following:
* * *
The Commonwealth introduced sufficient evidence to
disprove the defense of others beyond a reasonable
doubt. While [Stepfather] stated that he was being
choked to such an extent that he nearly lost
consciousness, there were no injuries to his neck.
Moreover, Detective Gardner and Officer Schubert
testified that when [Stepfather] gave them his story of
what had happened during the fight, he did not inform
either of them that he was being choked, or that he was
in fear for his life. Officer Schubert testified that
[Stepfather] informed him that “I got in a fight with him.
He missed me. I hit him and nobody got shot.” While
[Appellant] stated that he shot [Victim] so that he would
stop choking [Stepfather], [Appellant] testified that he
did not warn [Victim] that he had a gun, nor did he
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attempt to shoot him, in a nonlethal location. When
asked why he did not shoot him in the hand or foot
instead of the chest, which [Appellant] knew contained
vital organs, [Appellant] simply stated that he did not
think he had time, and that he was “not thinking about
where I’m going to shoot him.”
(Opin. and Ord. of Ct., J. Hathaway, Mar. 1, 2018, 21).
[This Court affirmed the judgment of sentence on December
18, 2018 and our Supreme Court denied the petition for
allowance of appeal on June 27, 2019. See
Commonwealth v. Reed, No. 477 WDA 2018 (Pa.Super.
December 18, 2018) (unpublished memorandum), appeal
denied, 654 Pa. 495, 216 A.3d 220 (2019)]. [Appellant]
timely filed the within counseled PCRA Petition on May 18,
2020. He asserts that trial counsel was ineffective for failing
to present expert testimony explaining how the
undeveloped brain of an eighteen-year-old affects “impulse
control, planning ahead, and risk avoidance.” …
On June 16, 2020, [Appellant] filed a Motion for Leave to
Hire an Expert, for the purpose of informing the [c]ourt “if
retaining an expert would have offered a potential for
success substantially greater than the course actually
pursued, resulting in a reasonable probability that the
outcome of the proceedings would have been different, but
for counsel’s action or inaction.” The Commonwealth
objected to [Appellant]’s motion. The prosecution argued
first that an expert’s testimony is irrelevant; and second,
even if the [c]ourt finds that expert testimony providing
context to the jury as to the mind set of an eighteen-year
old is relevant, providing said testimony would not have
offered a strategy with a greater likelihood of success than
the justification defense pursued by [Trial Counsel]. By
Order of Court dated October 26, 2020, the [c]ourt found
[Appellant’s] request to hire an expert was premature and
denied [Appellant]’s Motion without prejudice, permitting
him to re-file or re-present his motion at the conclusion of
the evidentiary hearing on [Appellant]’s PCRA petition.
(PCRA Court Opinion, filed 2/23/22, at 1-5) (internal footnotes and citations
omitted).
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The PCRA court held an evidentiary hearing on November 8, 2021. Trial
Counsel testified that his focus for the trial was to demonstrate that
Appellant’s actions were reasonable and justified because he was acting to
protect Stepfather’s life. Trial Counsel believed that he had a strong case for
a valid defense of others claim because of Appellant’s testimony of prior
altercations with the victim and his family, and the testimony of numerous
members of Appellant’s family about the circumstances of the fight prior to
the shooting. Trial Counsel was aware of Appellant’s young age at the time
of the shooting and thought it was an important point to stress to the jury.
Trial Counsel also stated that he was aware of the line of cases which relied
on scientific studies about the underdeveloped nature of the brain of
individuals under eighteen years old. Nevertheless, Trial Counsel did not think
those cases or studies were relevant for trial because the cases only implicated
sentencing and Appellant was already eighteen at the time of the shooting.
Accordingly, Trial Counsel did not explore acquiring an expert witness to
educate the jury on the relevant studies about the brain development and
decision-making capacity of young individuals. Trial Counsel also indicated
that he was constrained financially in his ability to hire an expert.
After considering all the evidence, the court denied Appellant’s PCRA
petition on February 23, 2022. On March 1, 2022, Appellant timely filed a
notice of appeal. On March 3, 2022, the court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
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Appellant timely complied on March 9, 2022.
Appellant raises the following issue for our review:
Did the PCRA Court err in denying [Appellant]’s PCRA
petition alleging ineffective assistance of counsel when Trial
Counsel failed to consult and present an expert regarding
the impact of [Appellant]’s age upon his decision making?
(Appellant’s Brief at 4).
Appellant argues that Trial Counsel provided ineffective assistance by
failing to consult with or hire an expert witness to explain the difference in
decision making between adolescents and adults, particularly in high-stress
situations. Appellant contends that such expert testimony “was crucial to the
assessment of [Appellant]’s state of mind as it pertains to the subjective
elements of both the voluntary manslaughter charge and the instructions
regarding justification.” (Id. at 8). Appellant asserts that Trial Counsel had
no reasonable basis for this failure, evidenced by Trial Counsel’s testimony at
the evidentiary hearing that he simply did not think to hire an expert for this
purpose. Appellant claims that given the legal context of the United States
Supreme Court’s acceptance of scientific research on adolescent decision
making and the fact that Appellant’s state of mind was a central issue in this
case, Trial Counsel’s failure to explore expert testimony in this area was
unreasonable. Further, Appellant avers that Trial Counsel’s failure prejudiced
Appellant because expert testimony on adolescent decision making could have
altered the jury’s determination on whether Appellant truthfully believed that
Stepfather’s life was in danger, resulting in a voluntary manslaughter verdict
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instead of a first-degree murder verdict. Appellant concludes that the PCRA
court erred in finding that Trial Counsel provided effective assistance, and this
Court should vacate the order denying his PCRA petition and remand for
further proceedings. We disagree.
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error.” Commonwealth v. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 428, 218
A.3d 850 (2019). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,
593 Pa. 754, 932 A.2d 74 (2007). “[W]e review the court’s legal conclusions
de novo.” Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super.
2021), appeal denied, ___ Pa. ___, 268 A.3d 386 (2021).
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
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a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth
v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175,
179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524,
645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing
to pursue a baseless or meritless claim.” Commonwealth v. Poplawski,
852 A.2d 323, 327 (Pa.Super. 2004).
“Once this threshold is met we apply the ‘reasonable basis’ test to
determine whether counsel’s chosen course was designed to effectuate his
client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client’s
interests. We do not employ a hindsight analysis in
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comparing trial counsel’s actions with other efforts he may
have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
“To demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[A] criminal
defendant alleging prejudice must show that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
Regarding counsel’s failure to call an expert witness:
To satisfy the arguable merit prong for a claim of
ineffectiveness based upon trial counsel’s failure to call an
expert witness, the petitioner must prove that an expert
witness was willing and available to testify on the subject of
the testimony at trial, counsel knew or should have known
about the witness and the defendant was prejudiced by the
absence of the testimony. Prejudice in this respect requires
the petitioner to show how the uncalled witnesses’
testimony would have been beneficial under the
circumstances of the case. Therefore, the petitioner’s
burden is to show that testimony provided by the uncalled
witnesses would have been helpful to the defense.
Commonwealth v. Williams, 636 Pa. 105, 137-38, 141 A.3d 440, 460
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(2016) (internal citations, quotation marks, and footnote omitted).
Instantly, the PCRA court found that Appellant’s claim had arguable
merit because expert testimony on adolescent decision making would be
admissible for the limited purpose of establishing Appellant’s subjective belief
that deadly force was necessary to defend Stepfather’s life.2 On appeal,
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2 Our Supreme Court has held:
To prevail on a justification defense, there must be evidence
that the defendant (a) ... 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. The Commonwealth sustains its burden [of
disproving self-defense] 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]self therefrom;
or that the slayer violated a duty to retreat or avoid the
danger.
The derivative and lesser defense of imperfect belief self-
defense is imperfect in only one respect—an unreasonable
rather than a reasonable belief that deadly force was
required to save the actor’s life.
Commonwealth. v. Sepulveda, 618 Pa. 262, 289, 55 A.3d 1108, 1124
(2012) (internal quotation marks and citations omitted).
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
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Appellant does not contend that the PCRA court erred in this finding or that
expert testimony on this topic would be admissible for any other purpose.
Accordingly, we examine whether Trial Counsel had a reasonable basis for
failing to offer expert testimony for the purpose of establishing Appellant’s
subjective state of mind and whether such failure prejudiced Appellant.
We note that any expert testimony regarding Appellant’s genuine belief
that he needed to use deadly force to protect Stepfather’s life would have
been cumulative to the evidence Trial Counsel presented for this purpose.
Specifically, Appellant testified to his perception of the events prior to the
shooting that led him to believe that he needed to use deadly force to protect
Stepfather’s life. Stepfather testified that Victim was on top of him and
choking him at the time that Appellant shot Victim. Several members of
Appellant’s family testified about the chaotic fight during which Appellant
ultimately shot Victim. Additionally, the jury was made aware that Appellant
was eighteen years old at the time of the shooting. Given Appellant’s
testimony about his own state of mind and the corroborating testimony from
his family members about the circumstances surrounding the shooting, we
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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.
Commonwealth v. Rivera, 631 Pa. 67, 88, 108 A.3d 779, 791-92 (2014).
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discern no error in the court’s determination that it was reasonable for Trial
Counsel to proceed without calling an expert witness to establish Appellant’s
subjective belief. See King, supra.
Additionally, in his closing argument, Trial Counsel explained to the jury
that the jury was obligated to reach a verdict of voluntary manslaughter if the
jury found that Appellant held an honest but unreasonable belief regarding
the need to use deadly force to protect life. Despite the evidence and
argument that Trial Counsel presented of Appellant’s subjective belief, the jury
found Appellant guilty of first-degree murder, demonstrating that the jury did
not believe that Appellant genuinely believed deadly force was required to
protect Stepfather. We are unconvinced that expert testimony about
adolescent decision making would have swayed the jury’s determination about
Appellant’s subjective belief, particularly when the jury was aware of his age
and had the benefit of hearing from Appellant about his state of mind before
and during the shooting. As the PCRA court noted, it is likely that the jury did
not find Appellant credible especially considering the evidence presented by
the Commonwealth demonstrating that Stepfather’s life was not actually in
danger. Specifically, the court noted:
While [Stepfather] stated that he was being choked to such
an extent that he nearly lost consciousness, there were no
injuries to his neck. Moreover, Detective Gardner and
Officer Schubert testified that when [Stepfather] gave them
his story of what happened during the fight, he did not
inform either of them that he was being choked or that he
was in fear for his life.
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Based on this, it would appear that the jury did not believe
[Stepfather’s] testimony that [Victim] was chocking him
when [Appellant] pulled the trigger. Without the testimony
that his life was in danger, there was no other evidence
corroborating [Appellant]’s testimony that he had to use
lethal force to save [Stepfather].
(PCRA Court Opinion at 19) (internal citations omitted). On this record, we
discern no error in the court’s determination that the production of an expert
witness on adolescent decision making was unlikely to change the result of
the proceeding. See Spotz, supra. Accordingly, Appellant failed to establish
the second and third prong of the test for ineffectiveness and we affirm the
PCRA court’s denial of his ineffective assistance of counsel claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2022
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