Com. v. Wright, D.

J-S44035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

DARIN WRIGHT, :

:

Appellant : No. 1723 EDA 2015

Appeal from the PCRA Order May 11, 2015

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No(s): CP-51-CR-0009147-2008

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 28, 2016

Darin Wright (“Wright”) appeals from the Order denying his first

Petition filed pursuant to the Post Conviction Relief Act.1 We affirm.

The PCRA court set forth the relevant factual and procedural history in

its Opinion, which we adopt for the purpose of this appeal. See PCRA Court

Opinion, 7/10/15, at 1-3.2

On appeal, Wright raises the following issues for our review:

1. Was trial counsel ineffective because he failed to object – on

due process grounds – to the [trial] court’s initial and final

instructions on demeanor evidence?

1

See 42 Pa.C.S.A. §§ 9541-9546.

2

In its Opinion, the PCRA court incorporated the trial court’s recitation of

facts, wherein the trial court mistakenly indicated that “Defendant” was

pronounced dead at the scene. See PCRA Court Opinion, 7/10/15, at 2

(citing Trial Court Opinion, 4/19/12, at 2-3). We assume that the trial court

intended to indicate that “the victim” was pronounced dead at the scene.

J-S44035-16

2. Was direct [appeal] counsel ineffective because he waived

[Wright’s] claim that the prosecutor went outside the record

in his summation?

3. Was trial counsel ineffective because he called Dr. Donald

Tibbs as an expert in the area of hip-hop [music] to try to

interpret the lyrics in the video made by [Wright]?

Brief for Appellant at 5 (capitalization omitted).

In his first issue, Wright points to the trial court’s jury instruction on

assessing the credibility of witnesses, and contends that “[n]o standards

were imparted to the jury on how to judge ‘a convincing manner,’ or how to

judge a witness’s ‘look,’ or speech, or how to assess credibility from

demeanor.” Id. at 8. Wright asserts that his “trial counsel had no strategic

reason for not objecting – on due process grounds – to these credibility

factors in the court’s charge.” Id. Wright claims that the jury instruction

violated his federal constitutional rights because it instructed the jury to

draw inferences of credibility from factors that do not support an inference of

credibility. Id. at 12. Wright argues that the trial court’s jury instruction

“throws irrational factors into the decision making process.” Id. at 14.

According to Wright, how the witness looked or acted, or the manner of

speech used by the witness, has no bearing on the witness’s credibility. Id.

Wright asserts that, because the effect of the trial court’s error cannot be

assessed, it constitutes a structural error from which prejudice must be

presumed. Id. at 16.

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J-S44035-16

The PCRA court set forth the relevant law, addressed Wright’s first

issue, and determined that it lacks merit. See PCRA Court Opinion,

7/10/15, at 9. We agree with the reasoning of the PCRA court and affirm on

this basis as to Wright’s first issue. See id.

In his second issue, Wright contends that, although his direct appeal

counsel raised the claim that the trial court erred by denying Wright’s Motion

for a mistrial following the prosecutor’s reference to evidence outside the

record during his summation, the claim was deemed waived because direct

appeal counsel provided no analysis, citation to the record, or citation to

legal authority.3 Brief for Appellant at 17. Wright asserts that this claim

“was meritorious to the point that it could have won a new trial,” and that

direct appeal counsel had no strategic reason for waiving the claim. Id.

Wright claims that his trial counsel’s approval of a curative instruction did

not result in waiver of his Motion for mistrial based on the prosecutor’s

comments. Id. at 18. Wright argues that the Commonwealth cannot show

that the prosecutor’s comments “in no way contributed to the verdict.” Id.

at 22. Wright contends that direct appeal counsel was ineffective for failing

to properly brief the issue. Id. at 24.

The PCRA court set forth the relevant law, addressed Wright’s second

issue, and determined that it lacks merit. See PCRA Court Opinion,

3

In his summation to the jury, the prosecutor argued that Wright’s intent to

kill the victim could be inferred from Wright’s statement that the victim

“caught me slipping, he caught me sleeping.” PCRA Court Opinion, 7/10/15,

at 7 (citing N.T., 9/12/11, at 81).

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J-S44035-16

7/10/15, at 7-9; see also Commonwealth v. Wright, 68 A.3d 363 (Pa.

Super. 2013) (unpublished memorandum at 9) (wherein a panel of this

Court noted the “overwhelming evidence of [Wright’s] guilt as established by

eyewitness testimony at trial”). We agree with the reasoning of the PCRA

court and affirm on this basis as to Wright’s second issue. See PCRA Court

Opinion, 7/10/15, at 7-9.

In his final issue, Wright contends that trial counsel’s decision to call

Dr. Donald Tibbs (“Dr. Tibbs”) as an expert in hip-hop music, to provide

opinion testimony regarding the meaning of the lyrics that Wright had used

in his music video, constitutes a “misguided trial strategy [which] destroyed

[Wright’s] presumption of innocence and his character.” Brief for Appellant

at 28. Wright asserts that Dr. Tibbs did not specify as to what degree of

certainty he held his opinions, and his opinions were not based on “scientific

acceptability in [] published, peer[-]reviewed literature.” Id. at 25. Wright

claims that, at the conclusion of Dr. Tibbs’s testimony, “the jury was left

with [Dr. Tibbs’s] essential position[,] which was [that Wright was] rapping

about the shooting of a driver of a car with a 9[-]millimeter [gun] in broad

daylight … [and it] was just a vast and terrible coincidence in that these

facts matched the facts of the murder charged to [Wright].” Id. at 26-27.

Wright argues that “[t]rial counsel apparently realized his dire mistake[,]

and did not mention Dr. Tibbs in his closing address to the jury.” Id. at 27.

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J-S44035-16

Wright contends that, as a result of trial counsel’s decision to present the

testimony of Dr. Tibbs, Wright was deprived of a fair trial. Id. at 30.

The PCRA court set forth the relevant law, addressed Wright’s third

issue, and determined that it lacks merit. See PCRA Court Opinion,

7/10/15, at 4-6; see also Commonwealth v. Talbert, 129 A.3d 536, 541

(Pa. Super. 2015) (concluding that the defendant’s rap music video

describing the murder at issue was relevant and admissible). We agree with

the reasoning of the PCRA court and affirm on this basis as to Wright’s third

issue. See PCRA Court Opinion, 7/10/15, at 4-6.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/28/2016

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Circulated 05/27/2016 02:59 PM

IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CRIMINAL TRIAL DIVISION

COMMONWEAL TH OF CP-5 l-CR-000914 7-2008

PENNSYLVANIA CP-51-CR-0009147-2008 Comm. v, Wright, Darin K.

Opinior.

FILED

v.

JUL 1 0 7.015

DARIN WRIGHT

11111111111111111·111\ 1111

7317963261

PostTrial UnM:

OPINION

BRONSON,J. July 10, 2015

I. PROCEDURALBACKGROUND

;,«.of>=- '

<a-:

On September 13, 2011, following a jury trial before this Court, defendant Darin Wright

was convicted of one count of murder of the third degree (18 Pa.C.S. § 2502(c)) and one count of

carrying a firearm on a public street in Philadelphia (18 Pa.C.S. § 6108).1 On January 12, 2012,

the Court imposed an aggregate sentence ~f twenty to forty years incarceration in state prison.

Defendant did not file a post-sentence motion. Defendant was represented at trial and at

sentencing by Joseph C. Arnold, Esquire, and on appeal by Nino Tinari, Esquire.

On February 15, 2013, the Superior Court affirmed defendant's judgment of sentence.

The Pennsylvania Supreme Court denied review on October 29, 2013. On December 4, 2014,

-.;:

.. ,''~

Norris E. Gelman, Esquire, filed a Post-Conviction Relief Act Petition ("PCRA Petition")

claiming that prior counsel were ineffective. Amended Petition at pp. 4-21. On March 16, 2015,

after reviewing defendant's PCRA Petition and the Commonwealth's Motion to Dismiss, this

Court ruled that the claims set forth in defendant's petition were without merit. That same day,

·l;;.,

pursuant to Pa.R. Crim.P. 907, the Court issued notice of its intent to dismiss the petition without

I

Defendant was acquitted of criminal conspiracy (18 Pa.C.S. § 903). Co-defendant Dwayne Williams was acquitted

of all charges. N.T. 9/13/2011 at 6-7.

a hearing ("907 Notice"). On May 11, 2015, the Court entered an order dismissing defendant's

PCRA Petition. This appeal followed.

Defendant has now appealed the Court's dismissal of his PCRA Petition, alleging that: 1)

trial counsel was ineffective for calling Dr. Donald Tibbs as an expert in Hip-Hop music; 2)

appellate counsel was ineffective for waiving defendant's claim that the Commonwealth went

outside the record during his summation; and 3) trial counsel was ineffective for failing to object

to the Court's charge concerning demeanor evidence:'J925(b) Statement- Nunc Pro Tune

("Statement of Errors") at pp. 2-6. For the reasons set forth below, defendant's claims are

without merit, and the PCRA Court's order dismissing his PCRA Petition should be affirmed.

II. FACTUAL BACKGROUND

The factual background for defendant's convict1~n is summarized in this Court's Rule

1925(a) Opinion regarding defendant's direct appeal:

On March 13, 2007, at approximately 4 p.m., John White picked up his

girlfriend, Aliyah Banks, from her school and began driving down Cambria Street

to take her home. N.T. 9/7/2011 at 161-163. At the comer of 24th Street and

Cambria Street, defendant and Dwayne Williams were standing in front of a

barber shop. N.T. 9/7/2011 at 199-200; 9/8/20T1 at 122. As Mr. White pulled his

car up to the comer, he, defendant, and Mr. Williams began arguing and "talking

trash" back and forth. N.T. 9/7/2011 at 204-205; 9/8/2011 at 125-126. The

argument continued until Mr. White drove off, dropping off Ms. Banks near her

home at the comer of 23rd Street and Cambria Street. N.T. 9/7/2011 at 161-163,

203-204. After Mr. White left, defendant said "fuck that nigger" and "[t]he next

time I see him, I'm going to hit him." N.T. 9/8/2011 at 127-128.

After dropping off Ms. Banks, Mr. White returned to the comer of 24th

Street and Cambria Street, and the three mencontinued arguing. N.T. 9/7/2011 at

209. As Mr. White sat in his car, defendant, who was standing four to five feet

away from Mr. White, pointed a silver handgun into the driver's side window of

the car and fired three to five shots at him. N.T. 9/7/2011 at 212-216; 9/8/2011 at

130-131. Mr. White, who was shot once in the head, fell forward and lost control

of the car, which travelled forward for approximately two blocks before it crashed

into a house at the comer of Taylor Street and Cambria Street. N.T. 9/7/2011 at

216; 9/8/2011 at 101, 131. Defendant was pronounced dead at the scene. The

cause of Mr. White's death was the gunshot wound to his head, which had killed

him instantly. N.T. 9/8/2011 at 101, 113.

2

Trial Court Opinion, filed April 19, 2012, pp. 2-3.

III. DISCUSSION

An appellate court's review of a PCRA court's grant or denial of relief "is limited to

determining whether the court's findings are supported by the record and the court's order is

otherwise free oflegal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996)

(citing Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super. 1995)). The reviewing court "will

not disturb findings that are supported by the record." Id.

Here, defendant's claims pertain to the allegedineffective assistance of trial and appellate

counsel. Under Pennsylvania law, counsel is presumed effective and the burden to prove

otherwise lies with the petitioner. Commonwealth v. Basemore, 7 44 A.2d 717, 728 (Pa. 2000),

n.10 (citing Commonwealth v. Copenhefer, 719 A.2d 242, 250 (Pa. 1998)). To obtain collateral

.;,....;

relief based on the ineffective assistance of counsel, ap,~titioner must show that counsel's

representation fell below accepted standards of advocacy and that as a result thereof, the

petitioner was prejudiced. Strickland v. Washington, 466 U.S. 668, 694 (1984). In

Pennsylvania, the Strickland standard is interpreted as requiring proof that: (1) the claim

underlying the ineffectiveness claim had arguable meri( (2) counsel's actions lacked any

reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice.

Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth v. Pierce, 527 A.2d

973, 974-75 (Pa. 1987). To satisfy the third prong of the test, the petitioner must prove that, but

for counsel's error, there is a reasonable probability that the outcome of the proceeding would

have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa. 2006) ( citing

Strickland, 466 U.S. at 694). lfthe PCRA court determines that any one of the three prongs

cannot be met, then the court need not hold an evidentiary hearing as such a hearing would serve

3

no purpose. Commonwealth v. Jones, 942A.2d 903, 906 (Pa. Super. 2008), app. denied, 956

,,.,;;~·:'.

A.2d 433 (Pa. 2008).

A. Testimony of Dr. Donald Tibbs

Defendant first asserts that trial counsel was ineffective for calling Dr. Donald Tibbs to

testify as an expert in the area of Hip-Hopmusic to interpret the lyrics of a YouTube video of

defendant rapping after White's murder. It was the Commonwealth's position that this rap

described White's murder and was, in effect, an admission by defendant that he shot and killed

White. N.T. 9/7/11 at 233-239. The Commonwealth called Troy Burton, an eyewitness to the

murder who grew up in defendant's community, was f~iliar with all the parties involved, and

was familiar with the vernacular used by defendant in the video, in order to explain the meaning

of the lyrics. N.T. 9/7/11 at 240-242; 253-271. The defendant called Dr. Tibbs to dispute

Burton's interpretation of the lyrics, and to refute the Commonwealth's contention that the video

was an admission of guilt by defendant.

.. ..,,.....,

Dr. Tibbs was an associate Professor of Law at the Earle Mack School of Law at Drexel

University, and a scholar in Hip-Hop and rap music. He had published articles and participated

in conferences concerning Hip-Hop, had lectured on Hip-Hop for approximately two-and-a-half

years prior to trial, and was scheduled to teach a class at Drexel University entitled "Hip-Hop

and the Law." N.T. 9/9/11 at 110-117.2 Defendant now claims that that trial counsel was

ineffective for calling Dr. Tibbs as a witness for two reasons: (1) Dr. Tibb's interpretations of

the video were not admissible under the rules of evidence; and (2) the introduction of Tibb's

testimony regarding rap permitted the Co~monwealth to link defendant to "a culture so far out

2

The Notes of Testimony for September 9, 2011 were incorrectly dated September 9, 2010. These notes are cited

herein using the correct date of September 9, 2011.

. __ ,~

4

of the pale [ of a] reasonable society as to shock the conscience of the jury" and thus destroy

defendant's character. Statement of Errors at pp. 2-4 .. .Both claims are without merit.

1. Admissibility of Dr. Tibb's Testimony

Defendant asserts that Dr. Tibbs' testimony was inadmissible as he "never specified to

what degree of certainty he held [his] opinions" and did not "establish that his opinion was based

on scientific acceptability in the published; peer reviewed literature ... " Statement of Errors at p.

2. This argument is frivolous. Dr. Tibb's expert testimony was offered by defendant in order to

support his argument that the rap video was not a confession to the murder. The rules governing

the admissibility of evidence protect the opponent of the evidence from having the factfinder

consider it if it is not admissible. Assuming arguendo.that the evidence was not admissible, and

yet was helpful to the defense, defense counsel could not have been constitutionally ineffective

for proffering such evidence. If, of course, the evidence were not helpful to the defense, then it

might have been error for defense counsel to present it whether or not the evidence was

admissible under the rules. That issue is addressed i11 defendant's next argument, below.

2. Linking Defendant to Rap Culture and Destroying his Character

Defendant also asserts that trial counsel was ineffective for introducing Dr. Tibbs'

testimony as it linked defendant to "a culture so far out of the pale of reasonable society as to

shock the conscience," and that this testimony prejudiced defendant by destroying his character.

Statement of Errors at p. 3. This argument is refuted by the record.

The YouTube video introduced by the Commonwealth was arguably highly incriminating

of defendant. In the video, as interpreted by the Commonwealth's witness, defendant spoke,

among other things, about a conflict between two ne~ghborhoods in which defendant loaded up a

nine-millimeter handgun and shot someone who was unarmed in broad daylight, and who was

5

driving a car. N.T. 9/7/11 at 240-242; 253-271. All of this matched the Commonwealth's

evidence of the murder here at issue. To refute that compelling evidence, the defense called

Professor Tibbs, who challenged the Commonwealth's interpretation of the lyrics. Dr. Tibbs

testified that defendant's rap "is normative to what we call gangsta rap music and that the lyrics

themselves contain more generalities than they do specificities and as a result of that it's difficult

... to make a positive statement of proof that he is actually talking about the facts that are alleged

in this case." N.T. 9/9/11 at 120. Dr. Tibbs further testified that gangsta rap musicians include

such individuals as Ice Cube, Jay-Z, and Kanye West, artists well known for their music, which

include violent lyrics that are not indicative ofreal crimes of violence. N.T. 9/9/11 at 122-130.

Dr. Tibbs also testified that, based on the video and lyrics, that defendant mixed "so many

metaphors that it's completely difficult to discern when he's talking about doing something

really and when he's talking about it in a metaphorical.sense," N.T. 9/9/11 at 163. Accordingly,

trial counsel sought to establish through Dr. Tibbs' testimony that defendant was not rapping

about the facts of this case, but was instead attempting to "get discovered so that [defendant

could] make it into the big time ... " and that defendant's song "sounds like a very sort of generic

versionofgangstarap." N.T. 9/9/11 at 131, 167.

Without the testimony of Dr. Tibbs, the defense would have left unchallenged the

Commonwealth's interpretation of the rap as being tantamount to a video confession. Dr. Tibbs,

who was eminently qualified, directly contradicted that evidence. Accordingly, the record

demonstrates that trial counsel had a reasonable basis for calling Dr. Tibbs' as a witness.

Counsel, therefore, could not have been ineffective for presenting this testimony. See

Commonwealth v. Collins, 957 A.2d 237, 250 (Pa. 2008) (counsel not ineffective as he had a

reasonable basis for deciding which witnesses to call at trial).

6

B. Prosecutor's Summation

Defendant next asserts that appellate counsel was ineffective "because he waived

[defendant's] claim that the prosecutor went outside the record in his summation in trying to

convict him." Statement of Errors at pp. 4-5. This claim is without merit.

It is well-established that an assistant district attorney's comments during closing

argument do not require a new trial unlessthe "unavoidable effect" of the comments "would be

to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that

they could not weigh the evidence and render a true verdict." Commonwealth v. Linder, 425

A.2d 1126, 1128 (Pa. Super. 1981) (quoting Commonwealth v. Stoltzfus, 337 A.2d 873, 882 (Pa.

· ....

1975)). Additionally, "[a] mistrial is not necessary where cautionary instructions are adequate to

overcome prejudice." Commonwealth v. Spatz, 716 A.2d 580, 593 (Pa. 1998).

At trial, defendant moved for a mistrial because of the following argument by the

Commonwealth:

[Assistant District Attorney]: The third waywe know that there was intent to

kill, his own words before the shooting, he caught me slipping, he caught me

sleeping. He's unarmed. Remember Darin Wright is unarmed when the conflict

starts. He says to anybody that will hear, he caught me slipping. When he comes

back, I'm going to hit him. When he comes back, I'm going to kill him. That's

the third way we know he possesses specific intent to kill.

N.T. 9/12/2011 at 81 (emphasis added). At the conclusion of closing arguments, and outside the

presence of the jury, defense counsel objected to the specific portion of the Commonwealth's

argument in which defendant was quoted as having said "he caught me slipping." N.T.

9/12/2011 at 123-124. As defense counsel correctly pointed out, the reference to defendant

saying that Mr. White "caught [him] slippi.ng" came from a portion of Dwayne Williams' s

statement that was not in evidence. N.T. 9/12/2011 at 123-124. As such, the Court sustained the

7

objection and gave the following instruction immediately after the jury returned to the

courtroom:

Before I get to the charge I have a preliminary matter that I need to raise with you,

ladies and gentlemen. During his closing the Assistant District Attorney Mr.

O'Malley made reference to an alleged statement of defendant Wright that, quote,

he could have caught me slipping, close quote. There was no evidence as to that

and I direct you folks to disregard the portion of Mr. O'Malley's argument

regarding that alleged statement.

N.T. 9/12/2011 at 128.

Defendant sought review of the Court's denialof his motion for mistrial before the

Superior Court, which held that the claim was waived due to appellate counsel's failure to

provide analysis or citations to the record or legal authority to support this claim. Superior Court

Opinion, filed February 15, 2013, pg. 2 n. 4. Defendant now claims that appellate counsel was

ineffective for failing to properly present this issue t~ the Superior Court.

Defendant's claim of appellate counsel ineffectiveness should be rejected because the

claim that counsel waived is clearly without merit. Because the Court sustained defendant's

objection and promptly gave a curative instruction, the Court properly denied defendant's motion

for a mistrial. The reference to defendant complainii,:iK.that

he was caught "slipping," a reference

that defense counsel believed to mean "unarmed," N.T. 9/12/2011 at 125, was a reference that

the jury was unlikely to comprehend. Additionally, the reference was part of the

Commonwealth's argument regarding defendant's specific intent to kill White, which was

rejected by the jury as defendant was not convicted of first-degree murder. Because the Court

not only instructed the jury to disregard the offending comment, but also advised it that the

comment was not based on any evidence, the momentary reference to defendant "slipping" could

not conceivably have prejudiced defendant to the point that it deprived him of a fair trial. Since

appellate counsel could not have been ineffective for failing to properly present a meritless claim

8

to the Superior Court, no relief is due. Se:_ Commonwe~lth v. Tedford, 960 A.2d 1, 33 (Pa. 2008)

(appellate counsel not ineffective for declining to challenge prosecutor statements in closing

arguments as defendant was not prejudiced by the statements).

C. Court's Charge on Demeanor Evidence

Finally, defendant asserts that "trial counsel was ineffective for failing to object to the

Court's Due Process deficient charge on demeanor evidence." Statement of Errors at p. 6.

Specifically, defendant claims that the following instruction was in error: "The following are

some of the factors that you may and should consider when judging credibility and deciding

whether or not to believe testimony: ... Third, did the witness testify in a convincing manner,

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how did he or she look, act and speak while testifying, was his or her testimony uncertain,

confused, self-contradictory or evasive." N.T. 9/10/12 at 134-135.

This claim is frivolous. The challenged instruction regarding demeanor evidence is taken

directly from Pennsylvania Suggested Standard Jury Instruction 4.17. See Pa.SSJI 4.17 ("Did

-.•.

. ...... ,..

the witness testify in a convincing manner? [How did [he] [she] look, act, and speak while

testifying? Was [his][her] testimony uncertain, confused, self-contradictory, or evasive?]"). The

Pennsylvania Supreme Court has previously held that Pa.SSJI 4.17 "provide]s] the jury with

those factors that are properly considered in ascertaining credibility." Commonwealth v. Snoke,

.,_

580 A.2d 295, 299-300 (Pa. 1990). Because there was no basis for counsel to object to the

charge, counsel could not have been ineffective for failing to do so.

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IV. CONCLUSION

For the foregoing reasons, the Court's order dismissing Defendant's PCRA petition

should be affirmed.

BY THE COURT:

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GLENN B. BRONSON, J .

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10