Com. v. Rogers, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RONALD ROGERS, No. 728 EDA 2018
Appellant
Appeal from the PCRA Order, February 23, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0011563-2009
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 15, 2019
Ronald Rogers appeals from the February 23, 2018 order entered in the
Court of Common Pleas of Philadelphia County that denied his petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
("PCRA"). We affirm.
A previous panel of this court set forth the following:
On August 23, 2006, Appellant and Demetrius Hayes
were involved in a shootout in which an unrelated
bystander, William Green, was struck by an errant
bullet and killed. On February 8-11, 2011, Appellant
was tried by a jury. Tyrone Singleton, an eyewitness,
testified for the Commonwealth. During the direct
appeal of this case, we summarized his testimony as
follows:
Tyrone Singleton testified that he met
with his friend, Demetrius Hayes, at the
corner of 10th and Master Streets on
August 23, 2006. He got into the
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passenger seat of Mr. Hayes' black
Mercedez-Benz. Mr. Hayes was seated in
the driver's seat. Mr. Hayes drove down
10th Street towards Thompson Street.
Mr. Hayes pulled his vehicle over toward
the curb to where Appellant was standing.
While the vehicle
was stopped,
Mr. Singleton saw two (2) friends of
Appellant's, Andre Holliday and Ronald
Fenwick, walking on Thompson Street
toward Mr. Hayes' vehicle. He saw
another male he knew to be a friend of
Appellant's across the street standing on
the corner.
Mr. Singleton heard Appellant say to
Mr. Hayes that "he needs $6,000.00 or it's
on." Appellant then pulled a weapon from
his waist and began firing. Mr. Singleton
leaned over and heard bullets hitting the
car. Mr. Hayes then pulled a gun that he
had next to him on his seat and returned
fire two (2) or three (3) times and then
took off at a high rate of speed.
Mr. Singleton continued to hear gun shots
coming from outside the car as they
pulled away.
Mr. Singleton had first testified at trial
that Mr. Hayes fired first but then testified
the next day that he said that because he
was afraid of two (2) men who had been
in the courtroom the day before and who
were no longer present.
Mr. Singleton's statement to the
detectives, testimony at the preliminary
hearing and testimony at the trial of
Demetrius Hayes were all consistent with
his final trial testimony that [Appellant]
pulled his weapon first and fired the first
shot.
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Mr. Singleton further testified that he and
Mr. Hayes inspected the vehicle when
they got to 10th and Popular Streets and
saw that one of the tires was flat; there
were three (3) bullet holes in the
passenger side door; and, two (2) bullet
holes in the passenger side air bag.
Mr. Singleton went to retrieve his own
vehicle and picked up Mr. Hayes. Later
that day, they heard that a person known
as "Ill Will" had been killed.
Mr. Singleton that prior to
testified
August 23, [2006], he had witnessed an
incident where [Appellant] shot at
Mr. Hayes' vehicle.
Commonwealth v. Rogers, No. 2834 EDA 2011,
2013 WL 11262994, *1 -*2 (Pa. Super. June 19, 2013)
(unpublished memorandum) (original brackets
omitted), appeal denied, 83 A.3d 415 (Pa. 2014).
As noted above, Singleton had previously testified for
the defense at the trial of Hayes and at Appellant's
preliminary hearing on September 9, 2009. He had
also given a statement to police detectives in relation
to this case. In each instance, Singleton testified,
consistently with the above, that Appellant fired the
first shots. As a result of Singleton's testimony at
Hayes' trial, Hayes was acquitted of all charges,
including murder.
However, when Singleton first began his testimony at
Appellant's trial, he stated that it was Hayes, and not
Singleton, who shot first. The trial court stopped the
testimony, excused the jury for the day, and said the
following on the record to Singleton:
Now that we are all here, let me express
this to you, Mr. Singleton, in no uncertain
terms: I don't know what your street mind
thinks, but I am going to explain it to you.
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You maybe made a mistake today. I am
not sure. You may have heard incorrectly.
You just took the stand in this case, this
week, and said that [Hayes] shot first, but
last week, you said, under oath, and on
this same record, with the same
stenographer, and the same Judge, that
[Appellant] shot first.
You have now just placed yourself -- the
District Attorney was getting ready to see
if that was a mistake. I stopped it there,
before you said one more thing.
Be very careful what you do, because
that's Perjury, and it is Perjury on the
record, and it is Perjury in front of the
same Judge.
If you are playing some little game here,
guess what is going to happen? You are
going to get charged with Perjury. Now,
this is a Homicide case, so I will make sure
that you receive a maximum consecutive
sentence.
Think about who you are helping out here,
because it isn't yourself.
Now, we are going to take a break for
today. Do some long hard thinking
tonight. You get on this stand, and you
tell the truth. You have been warned. So,
you can tell whatever story you want, but
I am telling you now: If you say that
again, it is Perjury, because it is on the
record. If it is the truth, and you perjured
yourself before, then live with it, but if it
is not the truth, and you think that you
are doing some favor, or you are afraid,
guess who is getting the sentence here?
You, and it will be the maximum,
consecutive.
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Take him back.
Appellant's attorney made no objection to the court's
remarks.
The next day, Singleton resumed his testimony,
recanted his testimony from the previous day, and
testified that Appellant fired first. Singleton explained
that the preceding day he "made a mistake" and "said
the wrong thing," because he was nervous.
At the conclusion of the trial, Appellant was found
guilty of third-degree murder, aggravated assault,
violating the Uniform Firearms Act, and possession of
an instrument of crime.[Footnote 1] He was
sentenced on May 5, 2011, to sixteen to thirty-two
years' incarceration.[Footnote 2] Appellant's
judgment of sentence was affirmed by this Court on
June 19, 2013, and the Pennsylvania Supreme Court
denied Appellant's request for further direct review on
January 16, 2014.
[Footnote 1] 18 Pa.C.S.[A.] §§ 2502(c),
2702, 6106, and 907, respectively.
[Footnote 2] Appellant received a
sentence of sixteen to thirty-two years'
incarceration for the murder charge, and
lesser concurrent sentences on his other
charges.
Appellant filed a timely PCRA petition, pro se, on
August 5, 2014, and thereafter filed a separate motion
to proceed pro se. Counsel was appointed to
represent Appellant on March 24, 2015; on July 9,
2015, counsel filed a no -merit letter[Footnote 3] and
petition to withdraw. The PCRA court conducted
Grazier[Footnote 4] hearings on October 19, 2015,
and December 21, 2015, after which the court allowed
counsel to withdraw and allowed Appellant to proceed
pro se and file an amended petition. [Footnote 5]
[Footnote 3] See Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988);
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Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988).
[Footnote 4] See Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998).
[Footnote 5] Appellant was present at the
Grazier hearings via video-conferencing.
Appellant filed an amended petition on February 22,
2016.[Footnote 6] On June 23, 2016, the PCRA court
issued notice of its intention to dismiss Appellant's
claims without a hearing pursuant to
Pa.R.Crim.P. 907. The court announced its reasons
for dismissing the petition in open court that day; a
representative of the Commonwealth was present in
court, but Appellant was not. Appellant did not
respond to the Rule 907 notice, and on August 9,
2016, the PCRA court dismissed his petition.
Appellant thereafter filed this timely appeal.
[Footnote 6] The Commonwealth moved
to dismiss Appellant's PCRA petition on
May 24, 2016. In its motion, the
Commonwealth argued that the trial
court's comments to Singleton were
within that court's discretion and that the
firearms evidence at trial, which
established that eight fired cartridges
cases [sic] matching Appellant's gun were
found at the scene of the shooting, versus
only three from Hayes' gun, supported
Singleton's account that Appellant fired
first and continued to fire as Hayes
escaped. The Commonwealth also argued
that no evidentiary hearing was
warranted in this case because Appellant
did not provide a signed certification
regarding each witness he intended to call
at the hearing.
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Commonwealth v. Rogers, No. 2799 EDA 2016 at 1-6, unpublished
memorandum (Pa.Super. filed August 16, 2017) (record citations omitted;
brackets in original).
In the appeal of the August 9, 2016 order denying appellant PCRA relief,
appellant raised two issues. In his first issue, appellant claimed that the PCRA
court abused its discretion in dismissing appellant's PCRA petition because
counsel was ineffective for failing to object to the trial court's improper
pressuring of Tyrone Singleton, the Commonwealth's key witness. (Id. at 6.)
This court found that this claim had arguable merit. (Id. at 12.) Additionally,
because the PCRA court failed to hold an evidentiary hearing or address the
other two prongs of the ineffectiveness inquiry, this court determined that a
remand for an evidentiary hearing was necessary. This court further directed
that in the event that either party appealed, the PCRA court was to file a
written decision explaining its disposition. (Id.) As a result of its disposition
on appellant's first issue, this court declined to address appellant's second
issue on appeal, wherein appellant alleged ineffectiveness of trial counsel for
failure to bring forth certain evidence.' (Id.)
On February 23, 2018, the PCRA court held the evidentiary hearing,
after which it denied appellant PCRA relief. Appellant filed a timely notice of
appeal. The PCRA court directed appellant to file a concise statement of errors
' We note that in the appeal of the August 9, 2016 order at No. 2799 EDA
2016, this court denied the Commonwealth's motion for
reconsideration/reargurnent.
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complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
complied. Thereafter, the PCRA court filed its Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Whether the [PCRA] court erred in denying PCRA relief
when the record clearly showed trial counsel had no
reasonable basis for his strategy choices on an issue
of arguable merit and trial counsel's lack of reasonable
strategy choice sufficiently caused prejudice to
appellant to the effect that there is a reasonable
probability that the outcome would have been
different[?]
Appellant's brief at 4.
In PCRA appeals, our scope of review "is limited to the findings of the
PCRA court and the evidence on the record of the PCRA court's hearing, viewed
in the light most favorable to the prevailing party." Commonwealth v. Sam,
952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most
PCRA appeals involve questions of fact and law, we employ a mixed standard
of review. Pitts, 981 A.2d at 878. We defer to the PCRA court's factual
findings and credibility determinations supported by the record.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In
contrast, we review the PCRA court's legal conclusions de novo. Id.Appellant's sole claim asserts ineffective assistance of trial counsel.
In evaluating claims of ineffective assistance of
counsel, we presume that counsel is effective.
Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
435, 441 (Pa. 1999). To overcome this presumption,
Appellant must establish three factors. First, that the
underlying claim has arguable merit. See
Commonwealth v. Travaglia, 541 Pa. 108, 661
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A.2d 352, 356 (Pa. 1995). Second, that counsel had
no reasonable basis for his action or inaction. Id. In
determining whether counsel's action was reasonable,
we do not question whether there were other more
logical courses of action which counsel could have
pursued; rather, we must examine whether counsel's
decisions had any reasonable basis. See Rollins, 738
A.2d at 441; Commonwealth v. (Charles) Pierce,
515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally,
"Appellant must establish that he has been prejudiced
by counsel's ineffectiveness; in order to meet this
burden, he must show that 'but for the act or omission
in question, the outcome of the proceedings would
have been different." See Rollins, 738 A.2d at 441
(quoting Travaglia, 661 A.2d at 357). A claim of
ineffectiveness may be denied by a showing that the
petitioner's evidence fails to meet any of these
prongs. Commonwealth v. (Michael) Pierce, 567
Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001);
Commonwealth v. Basemore, 560 Pa. 258, 744
A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v.
Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998)
("If it is clear that Appellant has not demonstrated
that counsel's act or omission adversely affected the
outcome of the proceedings, the claim may be
dismissed on that basis alone and the court need not
first determine whether the first and second prongs
have been met.").
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).
At the outset, it is important to note that appellant's defense at trial was
self-defense, premised on the claim that Hayes fired first. Following the
evidentiary hearing on remand, the PCRA court summarized trial counsel's
evidentiary hearing testimony as follows:
At the evidentiary hearing after remand, trial counsel
explained that his basis for not objecting to the Court's
admonishment of Singleton, and not bringing out the
court's admonishment before the jury, was that he did
not want to adopt Singleton as a witness for the
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defense. Trial counsel fully expected Singleton to
testify that [appellant] was the initial shooter and
based his defense on that fact. Counsel's defense was
that Singleton should not be believed because he was
Hayes' friend and a passenger in the vehicle that was
shot at numerous times. A reasonable person would
fully expect Singleton to be adverse to [appellant] as
he was a party with interest and bias. Furthermore,
Singleton had convictions for crimes of dishonesty and
was currently incarcerated. In contrast, the defense
had an independent witness with no criminal
background[:] Myra Summers. Summers was driving
directly behind Hayes' vehicle and gave a statement
to detectives that the person in the vehicle shot first.
This was the witness the Defense wanted the jury to
believe. It would be much more implausible for the
jury to accept Singleton's newfound testimony that his
friend shot first, particularly in light of the three prior
statements given by Singleton that [appellant] shot
first. Quite simply, it would not benefit the defense
for Singleton to change his testimony so there would
be no reason for counsel to object to the court's
admonishment.
PCRA court opinion, 6/26/18 at 10.
Our review of the record reveals that the PCRA court accurately
summarized trial counsel's testimony as to why he did not object to the trial
court's admonishment of Singleton and place the admonishment in front of
the jury. Indeed, trial counsel repeatedly testified that he had no basis for
objecting to the admonishment because regardless of how Singleton testified,
his testimony would not have been determinative because he lacked
credibility. (Notes of testimony, 2/23/18 at 15, 25, 34-36, 39-41.) Trial
counsel further testified that the most credible defense witness was
Ms. Summers who happened to be travelling in a vehicle behind the Hayes
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vehicle, witnessed the shooting, and had no connection to any individual
involved in the shooting. (Id. at 15-16, 21, 33.) Based on trial counsel's
testimony, the PCRA court properly determined that counsel had a reasonable
basis for failing to object to the trial court's admonishment of Singleton and
for failing to place the admonishment in front of the jury. Therefore, appellant
failed to satisfy the reasonable basis prong of the ineffectiveness inquiry and
the PCRA court properly denied his petition
Nevertheless, with respect to prejudice, we note that in his brief to this
court, appellant claims that:
[s]ince Ms. Summers never gave trial counsel
testimony that was usable to support the self-defense
claim,[2] counsel's failure to proceed with
impeachment of Singleton for changing testimony
after the trial court admonition prevented [a]ppellant
from having the jury fully see Singleton entirely to
decide if his initial direct testimony was trustworthy.
Had the jury believed Singleton was trustworthy
about this, there was a reasonable probability a
different outcome would have occurred.
Appellant's brief at 10 (emphasis added). In order to establish prejudice,
however, a petitioner is required to "show that but for the act or omission in
question, the outcome of the proceedings would have been different."
Washington, 925 A.2d at 594 (citation and internal quotation marks
2 We note that appellant failed to include the trial transcript in the certified
record on appeal, so we may not consider it. See Pa.R.A.P. 1911 (requiring
appellant to order any necessary transcripts to complete the record for their
appeal); see also, Commonwealth v. Williams, 715 A.2d 1101, 1103 (Pa.
1998) (holding that appellate courts are limited to considering only the facts
contained in the certified record on appeal).
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omitted). Appellant's claim that if the jury believed Singleton, "there was a
reasonable probability a different outcome would have occurred" falls far short
of establishing that but for trial counsel's failure to object and place the
admonishment in front of the jury, the outcome would have been different.
We finally note that in concluding that appellant failed to demonstrate
prejudice, the PCRA court explained:
Had Counsel brought out before the jury that
Mr. Singleton's testimony could possibly have been
coerced by the Court, irregardless [sic],
Mr. Singleton's testimony was still inconsistent
testimony because there is a track record. He gave a
statement to police. He testified at the preliminary
hearing. He testified at a prior trial just a week earlier.
So what we would have is still an unreliable witness.
Secondly, all witnesses were consistent, and that
being Mr. Singleton, and Miss Summers and ballistics,
basically, that [appellant's] weapon, being held by
[appellant], continued to fire at a vehicle that was
fleeing, thereby, hitting an innocent bystander with a
bullet.
It was proven that it was [appellant's] gun because
[appellant] was arrested with that particular weapon
two months later that fired the fatal bullet and that
nine fired cartridge casings were found at the scene
and there was testimony that the vehicle was riddled
with bullets or had bullet holes in it and the vehicle
took off immediately upon shots being fired, indicating
that whoever was firing the weapon, [appellant]
continued to fire at a fleeing vehicle which no longer
posed a threat to [appellant], thereby, hitting an
innocent bystander.
So that would not make out self-defense nor would it
qualify under voluntary manslaughter or a mistaken
belief in self-defense. So it really would not have
changed the result of the proceedings.
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Notes of testimony, 2/23/18 at 63-64. Accordingly, denial of appellant's PCRA
petition would also have been proper because appellant failed to demonstrate
prejudice.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 7/15/19
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