Com. v. Evans, R.

J-A17026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RODNEY EVANS :
:
Appellant : No. 1936 EDA 2021
Appeal from the PCRA Order Entered August 23, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012651-2009
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 21, 2022
Appellant Rodney Evans appeals pro se from the order dismissing his
timely first Post Conviction Relief Act1 (PCRA) petition. Appellant contends
that his trial counsel and direct appeal counsel were ineffective. We affirm.
The underlying facts and procedural history of this case are well known
to the parties. Briefly, Appellant was charged with third-degree murder and
related offenses after a shooting outside of a bar in 2009. PCRA Ct. Op.,
11/18/19, at 2. At trial, the Commonwealth presented evidence establishing
that Appellant had an argument with another man at the bar, and this man
was identified only as a man wearing a red shirt. Id. While the two men were
still inside the bar, Appellant pulled out a gun, pointed it at the man in the red
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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shirt, and “walked him outside.” Trial Ct. Op., 8/1/11, at 4. This confrontation
escalated into a gunfight, and during the gunfight between Appellant and the
man in the red shirt, Mr. Peter Lyde, Jr., who was working security for the bar
that night, was struck and killed by one of the bullets. Id.
Appellant was convicted of third-degree murder, possessing an
instrument of crime (PIC), persons not to possess firearms, and firearms not
to be carried without a license.2 The jury convicted Appellant on a theory of
transferred intent. See id. at 6-7 (citing Commonwealth v. Gaynor, 648
A.2d 295 (Pa. 1994)).
On September 13, 2010, the trial court sentenced Appellant to a term
of twenty to forty years of incarceration on the murder conviction, one to two
years of incarceration for PIC, a sentence of guilt without further penalty for
persons not to possess firearms, and two-and-one-half to five years of
incarceration for firearms not to be carried without a license. Sentencing
Order, 9/13/10, at 1. The trial court ordered Appellant to serve all sentences
concurrently. See id. On direct appeal, this Court affirmed Appellant’s
judgment of sentence. See Commonwealth v. Evans, 55 A.3d 131, 354
EDA 2011 (Pa. Super. filed July 11, 2012) (Evans I) (unpublished mem.).
Appellant filed a PCRA petition on March 18, 2013, which the PCRA court
ultimately denied as untimely. See Order, 5/24/19. On appeal, a prior panel
of this Court explained that Appellant’s March 18, 2013 PCRA petition was filed
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2 18 Pa.C.S. §§ 2502(c), 907(a), 6105(a), and 6106(a)(1) respectively.
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within one year from the date Appellant’s judgment of sentence became final.
Therefore, the Court concluded that the PCRA court erred in dismissing
Appellant’s petition as untimely.3 Commonwealth v. Evans, 1743 EDA
2019, 2021 WL 2394589, at *1-2 (Pa. Super. filed June 9, 2021) (Evans II)
(unpublished mem.). The Court also found that remand was necessary for
the PCRA court to address the status of Appellant’s representation and his
request to proceed pro se. Id. at *4. Therefore, we vacated the PCRA court’s
order and remanded the matter to the PCRA court for further proceedings.
Id. at *5.
Following this Court’s remand, the PCRA court conducted a Grazier4
hearing on July 23, 2021. On July 27, 2021, the PCRA court granted
Appellant’s request to proceed pro se and PCRA counsel’s motion to withdraw.
Appellant did not file nor seek to file an amended PCRA petition, and on
August 2, 2021, the PCRA court issued a notice of intent to dismiss Appellant’s
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3 This Court affirmed Appellant’s judgment of sentence on July 11, 2012. See
Evans I. Accordingly, Appellant had one year from August 10, 2012, the date
on which the time for seeking an appeal in the Supreme Court of Pennsylvania
expired, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(3)
(explaining that for purposes of the PCRA, a petitioner’s judgment of sentence
becomes final at the conclusion of direct review, including discretionary review
in the Supreme Court of Pennsylvania and the Supreme Court of United
States, or at the expiration of time for seeking review); see also Pa.R.A.P.
1113 (stating that “a petition for allowance of appeal shall be filed with the
Prothonotary of the Supreme Court within 30 days after the entry of the order
of the Superior Court or the Commonwealth Court sought to be reviewed.”).
Accordingly, Appellant had until August 10, 2013, to file a PCRA petition, and
his March 18, 2013 PCRA petition was timely filed.
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. On August 19,
2021, Appellant filed a response to the PCRA court’s Rule 907 notice, and on
August 23, 2021, the PCRA court dismissed Appellant’s PCRA petition.
Appellant filed a timely notice of appeal on September 14, 2021. The
PCRA court did not order Appellant to file a Rule 1925(b) statement. The
PCRA court subsequently issued an order incorporating prior opinions denying
PCRA relief and concluding that Appellant’s PCRA petition was properly
dismissed as meritless. PCRA Ct. Order, 9/14/21, at 1.
On appeal, Appellant raises the following issues for review:
1. Did the PCRA court err in denying Appellant’s claim that trial
counsel was ineffective for failing to adequately investigate
Appellant’s point of law and understand a ballistics expert with
an accurate measurement was needed to expose a forensic
contradiction between the evidence and the Commonwealth’s
expert witness’s testimony?
2. Did the PCRA court err in denying Appellant’s claim that trial
counsel was ineffective for failing to object and request a
mistrial to the court’s unrecorded ex parte instruction, and that
direct review counsel was ineffective for failing to raise the
claim?
3. Did the PCRA court err in denying Appellant’s claim that trial
counsel was ineffective for failing to object, and that direct
review counsel was ineffective for failing to raise the trial
court’s improper mandatory presumption instruction which
removed the choice from the jury to choose an independent
intervening cause?
Appellant’s Brief at 3-4.
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Failure To Call Ballistics Expert
In his first claim, Appellant argues that trial counsel was ineffective for
failing to call a ballistics expert at trial. Appellant’s Brief at 14-29. Appellant
claims that testimony from ballistics expert Carl Leisinger would have shown
to the jury that it was impossible for discharged shell casings to eject over
fifty feet from where Appellant was allegedly standing. Id. at 23. Appellant
contends that Mr. Leisinger’s expert testimony would have bolstered the
defense, and trial counsel had no reasonable basis for not calling him as a
witness at trial. Id. at 23-25.
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(citations omitted and formatting altered).
It is well settled that counsel is presumed to be effective, and Appellant
bears the burden of proving otherwise. Commonwealth v. Thomas, 270
A.3d 1221, 1226 (Pa. Super. 2022). This Court has explained:
[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
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action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the
proceedings would have been different.
* * *
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Sandusky, 203 A.3d at 1043-44 (citations omitted and formatting altered).
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, 141 A.3d 440, 460 (Pa. 2016) (citations and
footnote omitted and formatting altered).
Trial counsel need not introduce expert testimony on his client’s
behalf if he is able effectively to cross-examine prosecution
witnesses and elicit helpful testimony. Additionally, trial counsel
will not be deemed ineffective for failing to call a medical, forensic,
or scientific expert merely to critically evaluate expert testimony
[that] was presented by the prosecution. Thus, the question
becomes whether or not [defense counsel] effectively cross-
examined [the Commonwealth’s expert witness].
Commonwealth v. Marinelli, 810 A.2d 1257, 1269 (Pa. 2002) (citations
omitted and formatting altered).
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Here, the PCRA court addressed this issue as follows:
In support of this claim, Appellant presented a report of a newly
hired expert, Carl Leisinger. Specifically, Appellant alleged that
Mr. Leisinger’s opinion was that location of the 9mm discharged
shells demonstrated that the shooter of the fatal bullet could not
have been where Appellant was alleged to have been since it was
about 50 feet from where those shells were recovered. This claim,
too is meritless, as the proposed testimony was consistent, not
inconsistent with the testimony of the Commonwealth’s testifying
expert, Officer Walsh, who also testified that the casings could not
have traveled such a distance on their own. N.T., 6/18/10, 50-
51. In fact, this issue was not in dispute. The evidence was not
that Appellant’s gun killed the victim. Instead, it was alleged that
Appellant’s conduct, which began inside the bar, escalated into
the gunfight in which the man in the red shirt fired the fatal bullet.
Accordingly, this new witness, even if called would not have
changed the verdict and, accordingly, counsel could not have been
ineffective.
PCRA Ct. Op., 11/18/19, at 7-8.
After review, we conclude that although Appellant attached a copy of
Mr. Leisinger’s report to his amended PCRA petition,5 Appellant failed to
establish that Mr. Leisinger was willing and available to testify at Appellant’s
trial. Accordingly, Appellant’s claim fails. See Williams, 141 A.3d at 460;
see also Commonwealth v. Williamson, 2022 WL 2127289, at *3 (Pa.
Super. filed June 14, 2022) (unpublished mem.) (explaining that a claim that
counsel was ineffective for failing to call an expert witness is facially defective
when the petitioner fails to show that the expert was available and willing to
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5 See Am. PCRA Pet., 10/6/14, at Ex. B.
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testify for the defense (citing Commonwealth v. Selenski, 228 A.3d 8, 17
(Pa. Super. 2020)).6,7
In any event, were we to reach the merits of this issue, we would affirm
on the basis of the PCRA court’s opinion. See PCRA Ct. Op., 11/18/19, at 7-
8. Had this issue been properly presented, we would find no error in the PCRA
court’s conclusions. See Sandusky, 203 A.3d at 1043. As noted by the PCRA
court, the evidence at trial established that Appellant engaged in a gunfight,
and this gunfight resulted in the death of Mr. Lyde. Appellant was convicted
of murder on a theory of transferred intent. See PCRA Ct. Op., 11/18/19, at
8; Trial Ct. Op., 8/1/11, at 6-7. The Commonwealth’s evidence also
established that the 9mm shell casings at issue could not have travelled more
than fifty feet from where one witness placed Appellant. See PCRA Ct. Op.,
11/18/19, at 8 (citing N.T. 6/18/10, at 50-51). Appellant’s argument that Mr.
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6We may cite to unpublished memorandum decisions of this Court filed after
May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).
7 Additionally, much of Appellant’s argument on this first issue directly
challenges the weight of the evidence rather than counsel’s stewardship. See
Appellant’s Brief at 17-29. We note that Appellant thoroughly, but
unsuccessfully, litigated a challenge to the weight of the evidence on direct
appeal. See Evans I, 354 EDA 2011 at 6-10. We are cognizant that an issue
presented as a claim of ineffective assistance of counsel is distinct from a
weight claim raised on direct appeal. See, e.g., Commonwealth v. Hanible,
30 A.3d 426, 442 (Pa. 2011). Here, however, Appellant directly challenges
the weight of the evidence throughout his argument, and because this issue
was raised and addressed on direct appeal, we conclude that it was previously
litigated, relief was denied, and further review of this issue is precluded. See
42 Pa.C.S. § 9544(a)(2) (providing that an issue is previously litigated where
“the highest appellate court in which the petitioner could have had review as
a matter of right has ruled on the merits of the issue[.]”).
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Leisinger would have testified to this same conclusion would not benefit
Appellant’s defense. In other words, Appellant cannot establish prejudice
because the proposed testimony was cumulative, and it concerned facts that
were not in dispute and would not have changed the outcome of the trial. See
Williams, 141 A.3d at 460. Therefore, were we to reach this issue, we would
agree with the PCRA court that the claim fails. See PCRA Ct. Op., 11/18/19,
at 7-8.
Ex Parte Jury Instruction
In his next issue, Appellant argues that both trial counsel and direct
appeal counsel were ineffective for failing to challenge the trial court’s alleged
ex parte jury instruction. Appellant’s Brief at 29-38. Appellant contends that
the trial court answered two questions from the jury outside the presence of
Appellant and trial counsel, and that trial counsel and direct appeal counsel
were ineffective for failing to raise the issue. See id.
The Commonwealth responds that Appellant’s entire claim is based on
the fact that the challenged jury questions and the trial court’s answers were
not included in the notes of testimony, and further that Appellant has not
established that any ex parte communication occurred. Commonwealth’s Brief
at 9. Therefore, the Commonwealth contends that Appellant’s claim is
meritless. Id. at 10.
When a defendant claims that current counsel was ineffective for failing
to challenge prior counsel’s effectiveness, the defendant must present a
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layered claim of ineffectiveness. See Commonwealth v. McGill, 832 A.2d
1014, 1022-23 (Pa. 2003).
This Court has explained:
Where the defendant asserts a layered ineffectiveness claim he
must properly argue each prong of the three-prong ineffectiveness
test for each separate attorney.
Layered claims of ineffectiveness are not wholly distinct from the
underlying claims, because proof of the underlying claim is an
essential element of the derivative ineffectiveness claim. In
determining a layered claim of ineffectiveness, the critical inquiry
is whether the first attorney that the defendant asserts was
ineffective did, in fact, render ineffective assistance of counsel. If
that attorney was effective, then subsequent counsel cannot be
deemed ineffective for failing to raise the underlying issue.
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations
omitted and formatting altered), abrogated in part by Commonwealth v.
Bradley, 261 A.3d 381 (Pa. 2021). However, it is well settled that “counsel
cannot be deemed ineffective for failing to raise a meritless claim.”
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citation
omitted).
Here, the PCRA court concluded that Appellant’s claim lacked arguable
merit because Appellant did not establish that the alleged unrecorded ex parte
jury instruction actually occurred. PCRA Ct. Op., 9/28/20, at 8. Based on our
review of the record, we agree with the PCRA court’s conclusion.
The notes of testimony reflect that the trial court received and answered
the jury’s “third” question on July 1, 2020. See N.T., 7/1/10, at 2. The notes
of testimony clearly reflect that trial counsel was present at that time. See
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id. at 2. However, there is no indication in the record that an ex parte
communication by the trial court to the jury occurred or that trial counsel
believed that an ex parte communication took place.
Further, as noted by the PCRA court, Appellant failed to present any
evidence, establishing that the trial court gave an ex parte instruction to the
jury. Instead of providing an affidavit from trial counsel that would support
his claim, Appellant presents a letter from court reporter Kim Kendall which
states that there are no notes of testimony from June 30, 2010, which was
the date that the trial court allegedly answered the jury’s first two questions,
but the letter does not indicate that the trial court conducted ex parte
communications with the jury. Second Am. PCRA Pet., 8/5/15, at Ex. B.
Accordingly, even if there were no notes of testimony from that date, there is
no support for Appellant’s accusation that trial court conducted the
proceedings while Appellant and trial counsel were absent from the courtroom.
For these reasons, we find no error in the PCRA court’s conclusion that
Appellant’s claim is meritless. See Sandusky, 203 A.3d at 1043. Therefore,
because there is no arguable merit to Appellant’s contention, his
ineffectiveness claims fail. See Treiber, 121 A.3d at 445; Rykard, 55 A.3d
at 1190. Accordingly, Appellant is not entitled to relief.
Causation Instruction
In his final issue, Appellant argues that trial counsel was ineffective for
failing to challenge the trial court’s jury instruction regarding the causation
element for third-degree murder. Appellant’s Brief at 38-39. Appellant claims
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that the jury instruction prevented the jury from finding that there was an
independent intervening cause and created a mandatory presumption. Id. at
39-42. Appellant asserts that trial counsel had no reasonable basis for failing
to raise the claim, and direct appeal counsel had no reasonable basis for failing
to present the claim on direct appeal. Id. at 42-43.
As stated previously, “counsel cannot be deemed ineffective for failing
to raise a meritless claim.” Treiber, 121 A.3d at 445. Therefore, Appellant
must show a reasonable probability that counsel’s objection to the challenged
instruction would have led to a more favorable outcome. See generally
Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007).
With regard to jury instructions, our Supreme Court has explained:
The trial court possesse[s] broad discretion in phrasing its
instructions to the jury and [is] permitted to choose its own
wording so long as the law was clearly, adequately and accurately
presented to the jury for consideration. Furthermore, a trial court
need not accept counsel’s wording for an instruction, as long as
the instruction given correctly reflects the law. It is axiomatic
that, in reviewing a challenged jury instruction, an appellate court
must consider the charge in its entirety, not merely isolated
fragments, to ascertain whether the instruction fairly conveys the
legal principles at issue. Instructions will be upheld if they
adequately and accurately reflect the law and are sufficient to
guide the jury properly in its deliberations.
Commonwealth v. Fletcher, 986 A.2d 759, 802 (Pa. 2009) (citation
omitted). Further, this Court has stated:
A jury charge will be deemed erroneous only if the charge as a
whole is inadequate, not clear or has a tendency to mislead or
confuse, rather than clarify, a material issue. A charge is
considered adequate unless the jury was palpably misled by what
the trial judge said or there is an omission which is tantamount to
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fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions.
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (citations
omitted). “In examining the propriety of the instructions a trial court presents
to a jury, our scope of review is to determine whether the trial court committed
a clear abuse of discretion or an error of law which controlled the outcome of
the case.” See id. (citation omitted).
A mandatory presumption “tells the trier of fact that he must find the
elemental fact upon proof of the basic fact.” Commonwealth v. Hall, 830
A.2d 537, 544 (Pa. 2003). When determining whether a charge created a
mandatory presumption, the analysis is as follows:
The threshold inquiry in ascertaining the constitutional analysis
applicable to this kind of jury instruction is to determine the nature
of the presumption it describes. Francis v. Franklin, [471 U.S.
307, 314 (1985)] (quoting Speiser v. Randall, 357 U.S. 513, 514
(1958)). This Court must determine whether the challenged
portion of the instruction creates a mandatory presumption, or
merely a permissive inference. A mandatory presumption
instructs the jury that it must infer the presumed fact if the state
proves certain predicate facts. On the other hand, a permissive
inference suggests to the jury a possible conclusion to be drawn
if the state proves predicate facts, but [it] does not require the
jury to draw that conclusion. In determining whether a mandatory
presumption or a permissive inference has been created, a
reviewing court must assess the challenged instruction from the
viewpoint of a reasonable juror and declare it to create a
“mandatory presumption” if such a juror could reasonably believe
that proof of the predicate facts automatically shifts the burden of
persuasion on the relevant element to the defendant. See id.,471 U.S. at 315.
A mandatory presumption is the more troublesome of the two
evidentiary devices, “for it may affect not only the strength of the
‘no reasonable doubt’ burden but also the placement of that
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burden; it tells the trier that he or she must find the elemental
fact upon proof of the basic fact, at least until the defendant has
come forward with some evidence to rebut the presumed
connection between the two facts.” Ulster County Court v.
Allen, 442 U.S. 140, 157 (1979). If a jury instruction contains a
mandatory presumption, a reviewing court must examine the
presumption on its face to determine the extent to which the basic
and elemental facts truly coincide. If these facts do not coincide,
then the presumption will be deemed violative of due process,
regardless of whether an independent evaluation of the facts
presented by the state supports the mandatory inference. See
id. If, on the other hand, a jury instruction contains a permissive
inference, then the totality of evidence in the record other than
the presumption will be germane in an analysis of the inference’s
constitutional validity. See id.Thus, the first step for this Court is to decide whether the
instruction given by the trial court created either a mandatory
presumption or a permissive inference.
Commonwealth v. Kelly, 724 A.2d 909, 911-12 (Pa. 1999) (formatting
altered).
Here, as stated previously, Appellant was convicted of third-degree
murder, and the standard jury instruction for causation provides, in relevant
part, as follows:
1. The defendant has been charged with killing [or] causing the
death of [name of victim]. To find the defendant guilty of this
offense, you must find beyond a reasonable doubt that the
defendant’s conduct was a direct cause of his . . . death.
2. In order to be a direct cause of a death, a person’s conduct
must be a direct and substantial factor in bringing about the
death. There can be more than one direct cause of a death. A
defendant who is a direct cause of a death may be criminally liable
even though there are other direct causes.
3. A defendant is not a direct cause of a death if . . . the actions
of a third person [or] the occurrence of another event plays such
an independent, important, and overriding role in bringing about
the death, compared with the role of the defendant, that the
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defendant’s conduct does not amount to a direct and substantial
factor in bringing about the death.
4. A defendant’s conduct may be a direct cause of a death even
though his or her conduct was not the last or immediate cause of
the death. Thus, a defendant’s conduct may be a direct cause of
a death if it initiates an unbroken chain of events leading to the
death of the victim.
Pa. SSJI (Crim), § 15.2501C(1)-(4) (some formatting altered). Moreover, the
standard jury instruction for transferred intent states:
The Commonwealth has alleged that while the defendant intended
to kill . . . [name of intended victim], he . . . actually caused the
death of [name of deceased].
If you find beyond a reasonable doubt that the defendant intended
to kill . . . [name of intended victim] and was . . . acting with that
intent at the time he . . . in fact killed [name of deceased], you
may find the defendant acted with the specific intent to kill under
what the law calls the doctrine of transferred intent.
What this means is that if the actual result the defendant intended
differs from what he . . . contemplated only because a different
person than the one actually intended was killed, the element of
causing the death with specific intent to kill is still established.
Pa. SSJI (Crim), § 15.2501C.1.
The record reflects that the trial court conducted a charging conference
at which both trial counsel and the Commonwealth discussed the proposed
jury instructions. See N.T., 6/28/10, at 5-38. At that time, trial counsel
reiterated the defense theory that the actions of the man in the red shirt
constituted an independent intervening cause of the victim’s death and
therefore an affirmative defense to the third-degree murder charge. See id.
at 12. Specifically, trial counsel argued that if Appellant “did not shoot or
demonstrate his intent to shoot,” then the actions by the man in the red shirt
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were not “self defensive” and “would be an independent intervening cause of
death.” Id. at 15. Therefore, trial counsel requested an instruction stating
that the jury could only reject the independent intervening cause theory if it
specifically found that Appellant not only chased the man in the red shirt while
“brandishing” a gun, but also gave chase “while pointing a gun with the intent
to shoot.” See id. at 12-19.
Ultimately, the trial court instructed the jury that Appellant was charged
with causing the death of Mr. Lyde. The court informed the jury that before
it may find Appellant guilty of third-degree murder, it must find that
Appellant’s actions constituted a direct cause of Mr. Lyde’s death, and that
Appellant acted with malice. N.T. 6/29/10, at 132, 136-37. The trial court
further stated:
In order to be a direct cause of a death a person’s conduct must
be a direct and substantial factor in bringing about the death.
There can be more than one direct cause of the death. A
defendant who is a direct cause of the death may be criminally
liable even though there are other direct causes.
However, a defendant is not a direct cause of the death if the
actions of the third person or the occurrence of another event
played such an independent important and overriding role in
bringing about the death compared with the role of the defendant
that the defendant’s conduct does not amount to a direct and
substantial factor in bringing about the death.
A defendant’s conduct may be a direct cause of the death even
though his conduct was not the last or immediate cause of the
death. Thus, a defendant’s conduct may be a direct cause of the
death if it initiates an unbroken chain of events leading to the
death of the victim.
When the defendant with a conscious disregard of life intentionally
commits an act that is likely to cause death and his intended victim
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or someone else kills in reasonable response to such act the
causation element has been satisfied[.]
Id. at 133 (formatting altered). The trial court included the following
examples of where an independent intervening cause cannot be established:
[F]or example, by initiating a gunfight or participating in mutual
gunfights or while chasing someone while brandishing a gun with
the intent to shoot or by some other similar aggressive conduct
which demonstrates to the jury that the defendant had a
conscious disregard for life. Under those circumstances a self-
defense killing by someone other than the defendant cannot be
considered an independent intervening cause.
Id. at 133-134 (formatting altered).
Here, the PCRA court rejected Appellant’s claim that trial counsel and
direct appeal counsel were ineffective for failing to challenge the jury
instruction for causation. See PCRA Ct. Op., 11/18/19, at 7. Based on our
review of the record, we agree with the PCRA court’s conclusion.
The record reflects that trial court provided the standard jury instruction
for both causation and transferred intent. As part of the charge for third-
degree murder, the jury was instructed to determine if Appellant’s conduct
was the cause of Mr. Lyde’s death or if there was an independent intervening
action of another person that was the direct cause of Mr. Lyde’s death. N.T.,
6/29/10, at 133. Because there was evidence that the man in the red shirt
may have fired shots at Appellant in self-defense, the trial court instructed the
jury to consider whether Appellant initiated the gunfight or if Appellant
pursued the man in the red shirt with the intent to shoot him. Id. at 134.
The trial court then stated that if the evidence showed that Appellant engaged
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in either action, they could not find that the actions by the man in the red shirt
were an independent intervening cause of the victim’s death. See id.
Following our review of the record, we find no error in the PCRA court’s
conclusion on this issue. See Sandusky, 203 A.3d at 1043. On this record,
there is no basis to conclude that the trial court’s instruction created a
mandatory presumption regarding the causation element for third-degree
murder. As noted previously, the trial court gave the standard instruction for
causation and accurately described the circumstances where an independent
intervening cause may exist. Therefore, we conclude that the trial court’s
instructions, when read as a whole, did not relieve the Commonwealth of its
burden of proving the elements of the crime beyond a reasonable doubt. See
Fletcher, 986 A.2d at 803; see also Sandusky, 203 A.3d at 1099.
Further, trial counsel was not ineffective in failing to object to jury
instructions that, when viewed as a whole, properly informed the jury on the
law and which did not create a mandatory presumption. See Fletcher, 986
A.2d at 803; Kelly, 724 A.2d at 911-12. Similarly, because the underlying
issue was meritless, direct appeal counsel was not ineffective for failing to
raise the issue on appeal. See Treiber, 121 A.3d at 445. For these reasons,
Appellant is not entitled to relief.
Order affirmed.
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J-A17026-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2022
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