Com. v. Clark, L.

J-A01007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMAR DOUGLAS CLARK :
:
Appellant : No. 400 MDA 2020
Appeal from the PCRA Order Entered January 31, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005760-2014
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 21, 2022
Appellant Lamar Douglas Clark appeals from the order denying his first
Post Conviction Relief Act1 (PCRA) petition. This case returns to us after our
Supreme Court granted prior PCRA counsel’s motion to withdraw, reinstated
Appellant’s PCRA appellate rights nunc pro tunc, and remanded this matter to
this Court. Subsequently, we remanded this matter to the PCRA court for the
appointment of new counsel, and this case is now ripe for disposition. On
appeal, Appellant raises claims alleging ineffective assistance of counsel. After
review, we vacate and remand for further proceedings.
A prior panel of this Court summarized the relevant facts and procedural
history of this matter as follows:
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1 42 Pa.C.S. §§ 9541-9546.
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Some time before 10:00 p.m. on November 7, 2014, Appellant
entered Shenk’s Cafe, a neighborhood tavern in Lancaster,
Pennsylvania, with Daniel Ishman, known as “Zip.” The bar area
of Shenk’s Cafe is a narrow space, approximately 14 feet wide. At
the time Appellant entered, the crowd in the barroom was
estimated at between 20 and 50 people.
Appellant and Ishman left the bar and returned approximately
twenty minutes later with Joshwin Gonzalez, known as “J” or
“Joey.” At around 10:00 p.m., Appellant called Ishman over and
said that “he felt like someone was after him.” Then, as Gonzalez
approached, Appellant told him to stop and asked why he was
coming over. Gonzalez replied that he thought Appellant had
called him. Appellant then pointed a [revolver] at him and fired
five shots. Three people were struck by gunfire.
Joshwin Gonzalez suffered a gunshot wound to the left arm.
Cynthia Boots, a customer who had been seated near the jukebox,
suffered a wound to the left breast. Barry Diffenderfer, a
customer also seated near the jukebox, suffered a fatal wound to
the chest. He was found unresponsive on the floor by the first
responding police officer.
Shortly after the shooting, police observed Appellant running
naked on Chestnut Street, approximately two blocks from Shenk’s
Cafe. As Appellant was being detained, a juvenile called to police
and gave a [revolver] to Lancaster City Detective Stanley Roache
explaining that Appellant had given the weapon to him. That
weapon, a five-shot revolver, contained five spent .38 caliber
cartridges. Four .38 caliber bullets were recovered from Shenk’s
Cafe; one had DNA from Joshwin Gonzalez and a second had DNA
from Cynthia Boots. A fifth bullet was recovered from the body of
Barry Diffenderfer. The [revolver] that the juvenile gave to police
was traced back to the late father of Appellant’s current girlfriend
at the address where Appellant lived with his girlfriend.
Police were able to identify and interview approximately twelve
people who had been in Shenk’s Cafe that night. One witness,
Veldresha Lucas, Appellant’s sister, testified to seeing the
interaction between Appellant, Ishman and Gonzalez that
preceded the shooting as well as the shooting itself. Others
testified to hearing shots and hiding in fear.
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Appellant also presented evidence which was largely discredited
by the jury. Martha Cuelo testified that she overheard Ishman
saying that “they [i.e., Ishman and Gonzalez,] had set up
Appellant and he was going to never come out.”
On cross examination, Detective Roache testified that the juvenile
who handed him the pistol told him that Appellant had said “they
tried to kill me.” Police Officer Ben Bradley, who was present
when Appellant was detained and transported him to the police
station, also testified on both direct and cross examination that
Appellant had said “they tried to set me up in Shenk’s.”
Commonwealth v. Clark, 400 MDA 2020, 2021 WL 118887, *1 (Pa. Super.
filed Jan. 13, 2021) (unpublished mem.) (citation omitted and formatting
altered).
Appellant was charged with third-degree murder, firearms not to be
carried without a license, aggravated assault, and multiple counts of recklessly
endangering another person.2 At trial, Appellant was represented by Randall
Miller, Esq. (trial counsel). The Commonwealth presented testimony from
Lucas and another eyewitness, Joshua Welsh, who stated that Appellant aimed
his revolver at Gonzalez before firing. R.R. at 241a3, 317a-18a.4 Lucas
explicitly testified that Appellant fired five rounds at Gonzalez. Id. at 241a.
At the conclusion of trial, the trial court instructed the jury on third-
degree murder, self-defense, and voluntary manslaughter. R.R. at 374a-77a.
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2 18 Pa.C.S. §§ 2502(c), 6106(a)(1), 2702(a)(1), and 2705, respectively.
3 N.T. Trial vol. 3, 4/28/16, at 78.
4 We may cite to the reproduced record for the parties’ convenience.
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Trial counsel did not request an involuntary-manslaughter instruction.5 Our
Supreme Court summarized the subsequent procedural history as follows:
On May 3, 2016, a jury found [Appellant] guilty of one count of
third-degree murder and related crimes . . . . The trial court
sentenced [Appellant] to an aggregate term of thirty-eight-and-
one-half to eighty-one years’ incarceration, and the Superior
Court affirmed his judgment of sentence. This Court denied his
petition for allowance of appeal on January 3, 2018. See
Commonwealth v. Clark, 1289 MDA 2016, 2017 WL 1520732(Pa. Super. Apr. 25, 2017), petition for allowance of appeal
denied, 644 Pa. 536, 177 A.3d 829 (2018) (per curiam).
On November 26, 2018, [Appellant], acting pro se, timely filed a
[PCRA petition], challenging the effectiveness of his trial counsel.
The PCRA court appointed . . . Edwin G. Pfursich, IV, [(prior PCRA
counsel)] to represent [Appellant]. Counsel did not file an
amended petition on [Appellant’s] behalf. On January 31, 2020,
following an evidentiary hearing at which [Appellant’s] prior
attorney testified, the PCRA court dismissed [Appellant’s] petition,
concluding that trial counsel had a reasonable basis for his trial
strategy and that [Appellant] failed to demonstrate a reasonable
probability that the outcome of the trial would have been different
but for counsel’s alleged errors.
Commonwealth v. Clark, 254 A.3d 723, 724 (Pa. 2021) (per curiam order).
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court filed a Rule 1925(a) opinion addressing
Appellant’s the claims of ineffective assistance of counsel that were raised in
the Rule 1925(b) statement.
In his initial brief, Appellant raised the following issues:
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5We add that the assistant district attorney, during his closing, asserted that
no promises were made to anyone in exchange for their testimony. R.R. at
364a.
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1. Whether [trial counsel] provided ineffective assistance of
counsel by failing to request an involuntary-manslaughter
instruction.
2. Whether [trial counsel] provided ineffective assistance of
counsel by failing to object to evidence excluded by the trial
court before trial.
3. Whether trial counsel provided ineffective assistance by failing
to seek DNA testing of the revolver used in the shooting.
Appellant’s Brief at 3 (formatting altered). However, as stated above,
pursuant to the remand from our Supreme Court, Appellant retained new
counsel (current counsel), and with the assistance of current counsel,
Appellant filed a reply brief. Appellant’s reply brief includes three additional
claims of ineffective assistance by prior PCRA counsel.6
In his reply brief, Appellant first asserts that prior PCRA counsel should
have asked Appellant’s brother about the conversation that Ishman had with
Thornton. Appellant’s Reply Brief at 28. Appellant reasons this “evidence
would have been helpful when determining whether [trial counsel] had a
reasonable strategic basis for not seeking the [involuntary-manslaughter]
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6 Prior to Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), this Court
“followed then-binding precedent which compelled us to hold that [a
defendant’s] claims concerning the ineffectiveness of his PCRA counsel could
not be addressed on the merits because they had been raised for the first time
on appeal.” Commonwealth v. Crumbley, ___ A.3d ___, 2022 PA Super
16, 2022 WL 221556, *1 (Pa. Super. filed Jan. 26, 2022). Subsequently,
under Bradley, “layered claims of ineffective PCRA counsel may now be raised
for the first time on appeal if that is the earliest practical opportunity to do
so.” Id. As discussed below, Appellant raised supplemental claims of
ineffectiveness in his reply brief, which was the earliest practical opportunity.
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instruction.” Id. Appellant maintains that trial counsel’s failure to call his
brother resulted in an unfair trial. Id. at 29-30. Therefore, Appellant argues
that prior PCRA counsel should have amended the PCRA petition to include a
claim that trial counsel was ineffective for failing to call Appellant’s brother as
a witness at trial. Id. at 28-29.
Second, Appellant claims that despite the Commonwealth’s statement
that no agreements were made in exchange for testimony, prior PCRA counsel
was ineffective for failing to investigate a Brady7 claim that the
Commonwealth did not disclose an agreement with Lucas. Id. at 30. In
support, Appellant claims that five months after his conviction, Lucas pleaded
guilty in two pending cases. Id. at 31. Appellant asserts that such evidence
would have been critical to impeaching Lucas’ credibility. Id. at 31-32.
Therefore, Appellant reasons that prior PCRA counsel should have investigated
this issue and filed an amended PCRA petition. Id. at 32.
Third, Appellant asserts that prior PCRA counsel should have
investigated whether trial counsel was ineffective for failing to request a
weapon-focus8 jury instruction. Id. at 32.
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7 Brady v. Maryland, 373 U.S. 83 (1963).
8 “The presence of a weapon impairs an eyewitness’s ability to accurately
identify the perpetrator’s face.” Jones on Evidence § 61:21 (7th ed.) (citing
Elizabeth F. Loftus, et al., Some Facts About “Weapon Focus”, 11 L. & HUM.
BEHAV. 55, 61 (1987); Kerri L. Pickel, Unusualness and Threat as Possible
Causes of “Weapon Focus”, 6 MEMORY 277, 278 (1998); Nancy Mehrkens
(Footnote Continued Next Page)
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In Bradley, our Supreme Court adopted a new rule allowing PCRA
petitioners to “raise claims of ineffective PCRA counsel at the first opportunity,
even if on appeal.” Bradley, 261 A.3d at 405. In reaching that conclusion,
the Bradley Court emphasized the need to preserve a petitioner’s right to
effective PCRA counsel. Id.
The Bradley Court also reaffirmed the Court’s preference for
evidentiary hearings, and explained:
In some instances, the record before the appellate court will be
sufficient to allow for disposition of any newly-raised
ineffectiveness claims. However, in other cases, the appellate
court may need to remand to the PCRA court for further
development of the record and for the PCRA court to consider such
claims as an initial matter. Consistent with our prior case law, to
advance a request for remand, a petition would be required to
provide more than mere boilerplate assertions of PCRA counsel’s
ineffectiveness; however, where there are material facts at issue
concerning claims challenging counsel’s stewardship and relief is
not plainly unavailable as a matter of law, the remand should be
afforded.
Id. at 402 (citations and footnote omitted and formatting altered); see also
Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010) (stating that, as
“a general rule, a lawyer should not be held ineffective without first having an
opportunity to address the accusation in some fashion” and noting the Court’s
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Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 L. & HUM.
BEHAV. 413, 416 (1992).
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“strong preference that counsel be heard from before being found
ineffective”), overruled on other grounds by Bradley, supra.9
Here, following our review of the record, we conclude that Appellant
raised the supplemental claims challenging prior PCRA counsel’s effectiveness
at the earliest opportunity in his reply brief.10 Further, relief is not plainly
unavailable, and Appellant’s claims are specific challenges to the effectiveness
of PCRA counsel’s representation and “more than mere boilerplate assertions
of PCRA counsel’s ineffectiveness.” See Bradley, 261 A.3d at 402. As stated
above, where there are material facts at issue concerning claims challenging
counsel’s stewardship and relief is not plainly unavailable as a matter of law,
remand should be afforded. See id. Additionally, PCRA counsel should not
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9 In Commonwealth v. Smith, 817 EDA 2020, 2021 WL 6051850 (Pa. Super.
filed Dec. 21, 2021) (unpublished memo.), this Court remanded a matter for
an evidentiary hearing to resolve claims of PCRA counsel’s ineffectiveness that
were raised for the first time in the Rule 1925(b) statement and appellate
brief. We note that we may cite to non-precedential cases for their persuasive
value to the extent those cases were filed after May 1, 2019. See Pa.R.A.P.
126(b).
10 Appellant filed his opening brief on October 6, 2021, and the Bradley
decision was issued on October 20, 2021. Arguably, Appellant could have filed
a motion to file an amended opening brief after October 20, 2021, raising prior
PCRA counsel’s advocacy. However, given our Supreme Court’s expressed
preference “to protect and enforce a PCRA petitioner’s right to effective
assistance of counsel on collateral review,” we decline to find waiver on this
basis. Bradley, 261 A.3d at 389. Further, we note that waiver would likely
result in Appellant seeking “relief in the federal system through the de novo
filing of a writ of habeas corpus[, which] undermines essential principles of
respect and cooperation between the state and federal judiciary, delays the
collateral review process, and burdens federal courts to dispose of matters
more properly addressed by our Commonwealth’s judiciary.” Id. at 399.
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be determined to be ineffective without first having an opportunity to address
the accusations. See Colavita, 993 A.2d at 895.
For these reasons, we vacate the order denying PCRA relief and we
remand the matter to the PCRA court for an evidentiary hearing to permit
Edwin G. Pfursich, Esq. (prior PCRA counsel) to testify concerning the
supplemental ineffectiveness claims included in Appellant’s reply brief.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2022
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