Com. v. Scott, D.

J-S21001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DONALD WILLIAM SCOTT :

:

Appellant : No. 1238 WDA 2016

Appeal from the PCRA Order July 19, 2016

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0018335-2008

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED JULY 03, 2018

Appellant, Donald William Scott, appeals from the order entered on July

19, 2016, dismissing his petition filed under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. § 9541-9546. We vacate in part and affirm in part.

Specifically, we vacate the portion of the order that failed to grant Appellant

relief on his illegal sentencing claim. We also vacate Appellant’s judgment of

sentence and remand for re-sentencing. In all other respects, we affirm.

The trial court previously explained the facts underlying Appellant’s

convictions:

This matter arises out of a shooting which took place in the

early morning hours of November 23, 2008 in a parking lot

adjacent to a building owned by [Appellant] in Wilkinsburg,

[Pennsylvania]. The shooting resulted in the death of Derrick

House and the wounding of William [Bennett]. . . .

[Appellant] had rented out a room in his building for a

birthday party that started at approximately 9:00 p.m. on

J-S21001-18

November 22. Although planned for a group of 30 to 40

young teenagers, many more and much older teenagers

arrived and were admitted to the party until there was well

in excess of 80 people at the party. [Appellant] and other

adults assisting him were searching the teenagers for

weapons as they entered and providing security throughout

the night. . . .

The evidence establishes that the party, for the most part,

remained orderly. However, as the party was ending a large

group of the older teenagers were leaving and a fight erupted

between Defendant and one of the older teenagers, Troy

Cole, over a broken gold chain necklace being worn by Cole.

This fight, which started inside the building, eventually spilled

out into the street behind the building and an adjacent

parking lot. . . .

Once outside, several of the other teenagers also began

threatening or attacking [Appellant], until he was able to

retreat back inside the building. Shortly thereafter, Edric

McArthur, one of the adults assisting [Appellant], while trying

to disperse the group, also came under attack when he

ventured outside the building. [Appellant] went back outside

to aid McArthur and again was attacked until he and McArthur

could get back inside. . . .

After remaining inside for at least several minutes,

[Appellant] decided to go to his car that was parked in the

Save A Lot store parking lot, adjacent to his building. A video

surveillance camera for the store captured the events that

followed, which were also described by three witnesses who

were in the parking lot, Shenita Howard, Bennett and Cole. .

..

Bennett, . . . Howard and Cole all testified they saw

[Appellant] running to his car and that a large group of the

teenagers who had been lingering nearby saw [Appellant]

and ran at him as he reached his vehicle. The Commonwealth

described it as a group of 15 to 20 [teenagers]. The

surveillance video clearly shows [Appellant] running to his

vehicle and the teenagers converging on [Appellant] as he

reaches his vehicle and struggling with him as he closes or

attempts to close his door. One of those running towards the

vehicle was the victim, House. . . .

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The witnesses further testified that someone then yelled that

[Appellant] had a gun. At that point, some of the attackers,

including House, can be seen on the video running from

[Appellant’s] vehicle. Within seconds, at least [three] shots

were fired by [Appellant], one of which struck House as he

was running with his back to [Appellant] approximately 40

feet away. The bullet, which was believed by the medical

examiner to be a high velocity bullet such as a .44 caliber,

struck the back of the victim's head resulting in his death.

The medical examiner also testified that there was no

evidence of gunshot residue, soot or [stippling] which would

indicate that House was at close range when shot. Bennett,

who was running down Penn Avenue, was shot in his leg,

shattering his femur, and arm.

Howard testified that after seeing House shot, she saw

[Appellant] standing or pacing outside his vehicle with a silver

handgun and then he reentered his vehicle and pulled out

from the parking lot. As [Appellant] pulled out of the parking

lot [Sergeant] Henry Singer of the Wilkinsburg Police

Department, who received a dispatch about a disturbance at

12:20 a.m., pulled into the parking lot. . . .

As he [was] approaching the scene, [Sergeant] Singer heard

[four or five gunshots]. He identified the video from the

surveillance camera which showed [Appellant’s] vehicle

pulling out as he pulled into the lot. The video then showed

[Sergeant] Singer approaching the victim as he lay in the

parking lot. [Sergeant] Singer testified that he secured the

area and later searched for evidence but found no shell

casings, bullets, guns or other physical evidence.

The Commonwealth called Officer Rory McLaughlin, a

Department of Veterans Affairs police officer, who testified

that at approximately 3:00 a.m. on November 23 he was

dispatched to the VA [Hospital] by emergency room

personnel because [Appellant] had come to the hospital

saying he was involved in an incident in which shots were

fired and he was injured. McLaughlin was dispatched to

search [Appellant] for weapons. . . .

McLaughlin testified that he spoke with [Appellant] and

[Appellant] described being attacked twice, the second time

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at his car, and that he then left the scene and he must have

"passed out." [Appellant] did say that shots were fired,

however, did not tell McLaughlin that he had fired a gun that

night. He also told McLaughlin that he had not called the

police, but that he needed to call to report the incident.

McLaughlin found Defendant's cell phone on him, but no

weapons. McLaughlin also testified that video surveillance at

the hospital showed that [Appellant] entered the hospital at

2:50 a.m.

[Appellant] was subsequently interviewed by Detective

Thomas DeFelice of the Allegheny County Police at

approximately 4:30 a.m. Detective DeFelice testified that

[Appellant] described the events that night, but stated that

"while he was being attacked he heard three or four

gunshots. He was able to kick a male off of him and he made

it to his truck. He put his truck in reverse and drove away."

He then said that he blacked out but denied firing a gun.

When informed that a gunshot residue test could be

performed, [Appellant] told the Detective that he was

cleaning his gun earlier in the day. At trial, Defendant denied

owning or possessing any handguns.

The Commonwealth called Detective Matthews of the

Allegheny County Police who testified that he conducted a

search of [Appellant’s] house and vehicle, finding some

ammunition for handguns, including a .44 caliber cartridge

on the passenger's side of [Appellant’s] vehicle, as well as a

magazine and a grip for a handgun. However, no handguns

were found.

The Commonwealth also called Detective Kinavey of the

Allegheny County Police who identified a digital sketch and

measurements made of the scene of the shooting which

showed that House was 41 feet, 9 inches from [Appellant’s]

vehicle when he was shot in the back of the head. He also

testified that State Police gun license records showed that

[Appellant] was not licensed to carry a firearm.

...

[Appellant] testified that he owned the building where the

party took place for 15 years. He rented the room for the

party, which was to be for 30 to 40 children between the ages

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J-S21001-18

of 11 to 14, and that he asked Edric McArthur, among others,

to help him with the part. . . .

The party started at 9:00 p.m. [Appellant] and McArthur

patted down the teenagers for weapons as they entered the

party. [Appellant] testified that as the party was concluding

he got into a confrontation with Troy Cole about his gold chain

and during the argument, Cole and three other teenagers

jumped him. He said his attackers then ran outside and he

shut the door. However, McArthur went outside to disperse

the group and he then saw them beating McArthur so he went

outside to assist McArthur and was attacked again until he

and McArthur were able to get back inside. . . .

He [] waited about [ten] to 15 minutes and then went outside

to get his truck to get some of the younger children home

and to get medical attention for himself and [McArthur]. As

he went to his car, he saw a large group of teenagers running

at him and screaming that they were going to kill him. . . .

As he got to his truck they were grabbing, hitting and pulling

him. He testified that he didn't have a gun, but as he

struggled, "One of them that was standing right directly in

front of me, he was grabbing [at] my sweater. The gun came

out of his coat." At that time he instinctively grabbed for the

gun at which time it went off. He described it as a black

revolver. He then testified that he recalls shooting the gun

at least one more time and when he did his attackers, "were

just there, in front, everyone still. It was just a split second."

He testified that he thought his life was in danger but he

didn't try to shoot anyone. . . .

[Appellant] testified he then went to a friend's house and then

to the VA Hospital for what he described as a gash on his

head, bruises and contusions to his face and defensive

wounds on his hands, back, and both legs. In the attack

[Appellant] also sustained or aggravated a hernia that

required surgery and he subsequently suffered a stroke for

which he was in rehabilitation. [Appellant] testified that

because of the stroke, he had "aphasia", which affected his

speech, thinking, and his ability to read and write.

On cross-examination, [Appellant] denied seeing the police

coming onto the scene as he drove away. [Appellant] stated

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J-S21001-18

that he did not go straight to the hospital because he blacked

out. He denied the gun was his or that he owned any

handguns. He testified that he believed that he dropped the

gun used in the shooting in the parking lot. He explained the

ammunition in his vehicle as ammunition that was transferred

from one car to another and that may have been his wife's or

someone else's.

The defense also called Edric McArthur who also testified to

the fights and the encounters with the teenagers inside and

outside the building. However, McArthur did not see or hear

the shooting in the parking lot.

The defense also called Medina El, who had rented the room

from [Appellant] for her child's 14th birthday party. She

confirmed the fact that [Appellant] and McArthur were beaten

up and that the teenagers outside were threatening and

saying "they had guns." She called 911 because of her fear

of the crowd outside. She also believed that [Appellant] was

going to his vehicle to help take some of the younger children

home.

The defense also called Vlossie Long, [Appellant’s] friend,

who testified that [Appellant] came to his house about 1:00

to 1:30 a.m. and he appeared to be "a little bit beat up." He

said [Appellant] kept saying that they "jumped me." He

stated that [Appellant] stayed about 15 minutes and Long

told him to go to the hospital.

The defense also presented character testimony through

Long and Chris Sullivan, who testified to [Appellant’s] long

involvement in a boxing program in the area which benefited

the young people of the community. . . .

After being appropriately instructed, the jury found

[Appellant] guilty of voluntary manslaughter, aggravated

assault and carrying a firearm without a license. . . .

Trial Court Opinion, 11/15/11, at 4-10 (internal citations omitted).

On December 22, 2010, the Commonwealth provided Appellant with

notice that it intended to seek mandatory minimum sentences of five to ten

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years in prison, under 42 Pa.C.S.A. § 9712, for Appellant’s voluntary

manslaughter and aggravated assault convictions. Commonwealth’s Notice

Pursuant to 42 Pa.C.S.A. § 9712. The Commonwealth notified Appellant that

it was seeking the mandatory minimum sentencing terms because Appellant’s

convictions were “crimes of violence” and Appellant “visibly possessed a

firearm . . . that placed the victim[s] in reasonable fear of death or serious

bodily injury, during the commission of the offense[s].” See id.; see also 42

Pa.C.S.A. § 9712(a) (held unconstitutional in Commonwealth v. Valentine,

101 A.3d 801 (Pa. Super. 2014)).

On February 24, 2011, the trial court sentenced Appellant to serve an

aggregate term of ten to 20 years in prison for his convictions; Appellant’s

aggregate sentence included the two above-mentioned mandatory minimum

sentencing terms of five to ten years in prison, under 42 Pa.C.S.A. § 9712(a).

See N.T. Sentencing Hearing, 2/24/11, at 26.

We affirmed Appellant’s judgment of sentence on November 29, 2012

and the Pennsylvania Supreme Court denied his petition for allowance of

appeal on May 30, 2013. Commonwealth v. Scott, 63 A.3d 840 (Pa. Super.

2012) (unpublished memorandum) at 1-21, appeal denied, 68 A.3d 908 (Pa.

2013).

On August 22, 2014, Appellant filed the current, timely PCRA petition.

See 42 Pa.C.S.A. § 9545(b); U.S.Sup.Ct.R. 13(1). The counseled petition

raised a number of claims, including that Appellant’s “mandatory minimum

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sentences are illegal under Alleyne v. United States[, 570 U.S. 99 (2013)].”

Appellant’s PCRA Petition, 8/22/14, at 16.

The Commonwealth responded to Appellant’s petition and conceded that

Appellant’s sentence was illegal under Alleyne. Commonwealth’s Supplement

to Answer to PCRA Petition, 4/8/16, at 1-2. However, the Commonwealth

argued that the remainder of Appellant’s claims failed. See Commonwealth’s

Answer to PCRA Petition, 10/29/15, at 1-39; Commonwealth’s Supplement to

Answer to PCRA Petition, 4/8/16, at 1-7.

On May 9, 2016, the PCRA court held a hearing on the matter. At the

beginning of the hearing, the Commonwealth declared:

Your Honor, . . . two of the issues raised in the [petition] . .

. pertain to sentencing. With your permission, I believe the

correct way to proceed is essentially bifurcate those issues.

If [Appellant] was to in fact get PCRA relief and get a new

trial, obviously any sentencing claims are . . . moot. If the

PCRA is denied, then at that point the Commonwealth does

agree that [Appellant] does need to be resentenced pursuant

to Alleyne. He had a mandatory minimum. I guess at the

end of this proceeding we could pick a date perhaps for that.

N.T. PCRA Hearing, 5/9/16, at 4-5.

The PCRA court and Appellant’s counsel agreed to this course of action.

Id. at 5.

At the conclusion of the hearing, the PCRA court reserved its decision

on the matter; the court did not rule on Appellant’s illegal sentencing claim.

Id. at 77-79.

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On July 19, 2016, the PCRA court dismissed Appellant’s petition in toto.

Appellant filed a timely notice of appeal; Appellant numbers ten claims on

appeal:

[1.] Was [Appellant’s] claim for relief properly cognizable

under the [PCRA]?

[2.] Did the [PCRA] court err in finding that direct appeal

counsel was not ineffective for failing to argue that

[Appellant] was entitled to a new trial under the June 28,

2011 amendments to 18 Pa.C.S.A. § 505(b)?

[3.] Did the [PCRA] court err in denying the motion for

discovery to obtain the medical records of [] victim William

Bennett, and any associated ballistics reports?

[4.] Did the [PCRA] court err in finding that counsel was not

ineffective for failing to object to the hearsay opinion

testimony given by non-expert Detective Kinavey on the

scientific qualities of the surveillance video recording; and

that counsel was not ineffective for failing to have the

surveillance video professionally analyzed and the quality

enhanced, and for not showing it to the jury at normal, full

speed?

[5.] Did the [PCRA] court err in finding that trial counsel was

not ineffective for failing to utilize the 911 transcript and

surveillance videos showing the movements of the crowd

prior to the final assault on [Appellant] at his vehicle?

[6.] Did the [PCRA] court err in finding that trial counsel was

not ineffective for failing to utilize all available impeachment

evidence in cross-examining Commonwealth witness Shenita

Howard, and in refusing the court’s offer to specifically direct

its jury instruction on prior inconsistent statements to [Ms.]

Howard’s statements?

[7.] Did the [PCRA] court err in finding that trial counsel was

not ineffective for failing to document the extent of

[Appellant’s] injuries at the time of the incident, and the very

real effects consequent upon his subsequent stroke, as they

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affected the manner of his testimony on the stand and his

rehabilitative needs?

[8.] Did the [PCRA] court err in finding that trial counsel was

not ineffective for failing to object to the deficient jury

instruction with respect to the defense of justification?

[9.] Did the [PCRA] court err in finding that trial counsel was

not ineffective for failing to object and move for a mistrial

following improper argument by the prosecution?

[10.] Did the [PCRA] court err in not considering the errors

cumulatively, and not finding that prejudice resulted from

multiple constitutional errors where [Appellant] established

the ineffectiveness claims have merit and that counsel had

no reasonable basis for his acts or omissions?

Appellant’s Brief at 4-5 (some internal capitalization omitted).

“In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotations

and citations omitted).

Appellant raises ten claims on appeal. Nevertheless (and for reasons

this Court simply cannot understand), Appellant failed to raise any claim that

the PCRA court erred when it denied him relief on his illegal sentencing claim.

We sua sponte raise the illegal sentencing issue, vacate the PCRA court’s order

in part, vacate Appellant’s judgment of sentence, and remand for re-

sentencing.1

____________________________________________

1 We inform Appellant’s counsel that, if we had not raised the illegal sentencing

issue sua sponte and had simply reviewed the specific issues raised on appeal,

we would have affirmed the PCRA court’s order and the PCRA court would not

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As we have held:

Alleyne challenges implicate the legality of a sentence. A

challenge to the legality of a sentence may be entertained as

long as the reviewing court has jurisdiction. An illegal

sentence must be vacated. Issues relating to the legality of

a sentence are questions of law. Our standard of review over

such questions is de novo and our scope of review is plenary.

Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal

citations, quotations, and corrections omitted).

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States

Supreme Court held: “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States Supreme

Court expanded “Apprendi’s basic jury-determination rule to mandatory

minimum sentences.” Alleyne, 570 U.S. at 120 (Breyer, J., concurring).

Specifically, the Alleyne court held that, where an “aggravating fact”

increases a mandatory minimum sentence, “the fact is an element of a distinct

and aggravated crime. [The fact] must, therefore, be submitted to the jury

and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 116.

As this Court has held, Alleyne rendered the mandatory minimum

sentencing statute of 42 Pa.C.S.A. § 9712 wholly unconstitutional.

Valentine, 101 A.3d at 812. Further, in Commonwealth v. Ruiz, 131 A.3d

____________________________________________

have had jurisdiction to grant Appellant any form of relief on the illegal

sentencing claim.

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54 (Pa. Super. 2015), this Court held that an Alleyne claim is a non-waivable

challenge to the legality of a sentence that may be raised for the first time on

direct appeal or in a timely-filed PCRA petition. Ruiz, 131 A.3d at 60; 42

Pa.C.S.A. § 9542 (“persons serving illegal sentences may obtain collateral

relief”). We also observed in Ruiz that Alleyne may be applied retroactively

to cases pending on collateral review so long as the petitioner’s judgment of

sentence was not final when Alleyne was decided. Ruiz, 131 A.3d at 59-60.

With respect to the case at bar, the trial court sentenced Appellant on

February 24, 2011, we affirmed Appellant’s judgment of sentence on

November 29, 2012, and the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal on May 30, 2013. Commonwealth v. Scott,

63 A.3d 840 (Pa. Super. 2012) (unpublished memorandum) at 1-21, appeal

denied, 68 A.3d 908 (Pa. 2013). Therefore, Appellant’s judgment of sentence

became final at the end of the day on August 28, 2013. See 42 Pa.C.S.A.

§ 9545(b)(3) (“A judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States . . .

, or at the expiration of time for seeking the review”); see also U.S.Sup.Ct.R.

13(1). Since Alleyne was decided on June 17, 2013, Appellant is entitled to

the benefit of Alleyne and the instant case does not implicate an

impermissible retroactive application of that case.

Based on our review of the procedural background of this case and the

relevant case law discussed above, we conclude that Appellant is entitled to

resentencing without consideration of the mandatory minimum sentencing

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J-S21001-18

provision of 42 Pa.C.S.A. § 9712. Therefore, since the PCRA court erred in

dismissing Appellant’s petition raising an Alleyne challenge, we vacate, in

part, the order denying Appellant PCRA relief; vacate Appellant’s judgment of

sentence; and, remand for resentencing.

However, we conclude that the remainder of Appellant’s claims on

appeal are meritless and that the opinion of the Honorable Randall B. Todd,

entered on July 19, 2017, meticulously and accurately disposes of Appellant’s

issues on appeal. Therefore, we affirm the remainder of the PCRA court’s

order on the basis of Judge Todd’s thorough opinion and adopt it as our own.

In any future filing with this or any other court addressing this ruling, the filing

party shall attach a copy of Judge Todd’s opinion.2

Order vacated in part and affirmed in part. Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.

____________________________________________

2 We note that Appellant’s trial counsel did not request a self-defense jury

instruction based upon the castle doctrine. See N.T. Trial, 12/8/10, at 356-

370; N.T. Trial, 12/9/10, at 370-384 and 469-502. Therefore, even if the

relevant amendments to 18 Pa.C.S.A. § 505(b)(2.1) and (2.5) (regarding the

addition of “occupied vehicle” to the castle doctrine) are procedural,

Appellant’s direct appellate counsel could not have been ineffective for failing

to raise the issue, as the issue was waived at the trial level. See

Commonwealth v. Napold, 170 A.3d 1165, 1168 (Pa. Super. 2017) (“in

order for a new rule of law to apply retroactively to a case pending on direct

appeal, the issue had to be preserved at all stages of adjudication up to and

including the direct appeal”) (internal citations and quotations omitted); see

also id. at 1168 n.3 (noting that “[a]n exception to the issue-preservation

requirement exists where the challenge is one implicating the legality of the

appellant’s sentence”) (internal citations and quotations omitted); Pa.R.A.P.

302(a) (“[i]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal”).

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/3/2018

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Circulat d 06/19/2018 09:45 AM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY

COUNTY, P

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COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION

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vs. 1 Aive

CC NO: 2008-18335

DONALD WILLIAM SCOTT,

APPEAL

Petitioner. OPINION

JUDGE RANDAL B. TODD

COPIES SENT TO:

Counsel of Record for the

Commonwealth of Pennsylvan

Stephen A. Zappala, Jr.

District Attorney

By

Michael Streilly, Esquire.

Assistant District Attorney

401 Courthouse

Pittsburgh, PA 15219

Counsel for Petitioner:

Suzanne M. Swan, Esquire

310 Grant Street

Suite 823

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IN THE COURT OF COMMON PLEAS OF

ALLEGHENY COUNTY, PENNSY VANIA

COMMONWEALTH OF CRIMINAL DIVISION

PENNSYLVANIA,

vs. CC NO. 2008-18335

DONALD WILLIAM scow,

Petitioner.

OPINION

TODD, J.

July 19, 2017

This is an appeal by Petitioner, Donald William Scott, from an

order entered on Jul 19, 2016

denying his PCRA petition. On August 17, 2016 Petitioner

filed a Notice, of Appeal to the uperior

Court. On August, 23,2016 a 1925(b) Order for Concise

Statement of Matters Complained of on Appeal

was entered. After granting a Motion for Extension of

Time to file Concise Statement, Peti loner filed

his Concise Statement of Matters Complained of on

Appeal on November 7, 2016 raising e. following

issues:

"A. The court erred in finding that counsel who represented

Petitioner on direct Teal

was not effective for failing to argue that Petitioner was

entitled to a new tri

under the June 28, 2011 amendments to 18 Pa C S 505(b);

§

B. The court erred in denying' the motion for discovery to

obtain the medical rec rds

of alleged victim William Bennett, and any associated ballistics

reports, inso as

the Petition presented exceptional circumstances under

Pa.R.Crim.P. 902(E),

specifically, that the record supported the Petitioner's belief that the documen

s

would support the theory that Bennett's injuries were the result of

gunfire

originating from a person or persons other than the Petitioner.

C. The court erred in finding that counsel was not ineffective for

failing to objet to,

the hearsay opinion testimony given by non-expert

Detective Kinavey on the

scientific qualities of the surveillance video recording; and that

counsel was ii it

1

ineffective for failing to have the surveillance video professionally analyz=. and

the quality enhanced, and for not showing it to the jury at normal, full sp - - I

D. The court erred in finding that trial counsel was not ineffective for failing t show

the jury the available surveillance video clips showing mass movements o the

mob of teenagers rushing towards and away from the entranceway to the p

premises; and that trial counsel was not ineffective for not presenting evi Ii nce

corroborating the 911 calls made by Petitioner and Medina El prior to the

shooting;

E. The court erred in finding that trial counsel was not ineffective for failing t

utilizeS all available impeachment evidence in cross-examining Commonw alth

witness Shenita Howard, and in refusing the court's offer to specifically d t its

jury instruction regarding prior inconsistent statements to Ms. Howard's

statements;

F. The court erred in finding that trial counsel was not ineffective for failing ti

submit a motion in limine objecting to the prosecution's use of crimen falsi

convictions against defense witness Edric Marthur, which convictions wer stale,

and their prejudicial effect substantially outweighed their probative value;

G. The court erred in finding that trial counsel was not ineffective for failing t

11

present facts showing that Petitioner's ability to perceive what was happem g at

the time of the incident was adversely affected by physical conditions, and or

failing to present the testimony of an expert witness who would have info ed the

jury of the extent and impact of Petitioner's injuries at the time of the incid nt, as

well as how his subsequent stroke affected his speech and behavior during rial,

particularly during his testimony;

H. The court erred in finding that trial counsel was not ineffective for failing t

challenge the deficient jury instruction with respect. tolhe.defense of jnstifi ation

by excluding the word "complW.when:charging.the jury that the use of d dly

force for self-protection is not justifiable where. "the actor knows that he c. avoid

the necessity of using force to complete safety by retreating";

1. The court erred in finding that counsel was not ineffective for failing to obj t.to

the prosecutOr's use of leading questions .during .direct examination of

Commonwealth witnesses Howard and Bennett; and that counsel was not

ineffective for failing to object to.and.move for a. mistrial based on the imp iper.

argument by the prosecutor (1) based' on matters not of record, '(2) express.' ga

personal opinion as to.. the guilt: of the Petitioner, and (3) commenting on th

Petitioner's post-arrest..chOitelo remain silent;

J. Where Petitioner established that the issues raising trial counsel's ineffectiv ness

have merit, and that counsel could not have had a reasonable basis for his o her

respective actions or omissions, the court erred in not considering the errors

2

cumulatively, and finding that prejudice resulted from the multiple consti tional

violations."

BACKGROUND

The factual background concerning this matter and the trial ,testimony"was' review d in the

1925(b) opinion that was filed in this matter on November 15,2011,, and which set for th following:

This matter arises out of ashooting which took place in the early morning hours

November 23, 2008 in a parking lot adjacent to a building owned by Defendant in

Wilkinsburg, Pa. The shooting resulted in the' death of Derrick House and the wo ding,

of Will Bennett. Defendant had rented out a, room in his building for a birthda party

that started at approximately 9:00 p.m. on November 22. (T., p. 257) Although p1 ed

for a group of 30 to 40 young teenagers, many more and much older teenagers arri ed

and were admitted to the party until there was well in excess of 80 people at the p Y.

(T, p. 155) Defendant and other adults assisting him were searching the teenagers or

weapons as they entered and providing security throughout the night. (T.,. pp. 257 261)

The evidence establishes that the party; for the most part, remained orderly. How er, as

the party was ending a large group of the older teenagers were leaving and a fight. rupted

between Defendant and one of the older teenagers,. Troy Cole, over a broken gold hain

necklace being worn by Cole. (T., p. 162) This fight, which started inside the bui ing,

eventually spilled out into the street behind the building and an adjacent parking 1 (T.,

p. 164) Once outside, several of the other teenagers also began threatening or atta king

Defendant, until he was able to retreat back inside the building. Shortly thereafter, Edric

McArthur, one of the adults assisting Defendant, while trying to disperse the grou also

came under attack when he ventured outside the building. Defendant went back o tside

to aid McArthur and again was attacked until he and McArthur could get back insi e.

(T., pp. 169, 184) After remaining inside for at least several minutes, Defendant d ided

to go to his car that was parked in the ,Save :A Lot store parking lot, adjacent to his

building. A video surveillance camera for the store captured the events that follow d,

which were also described by three vvitnesses who were in the parking lot, .Shenita

Howard, Bennett and Cole. Bennett, Who was later Wounded in the shooting, How

and Cole all testified, they saw Defendant running to his car and that a large group, f the

teenagers who' had been lingering nearby saw Defendant and ran at him as he reac his

vehicle. (T., pp. 85, 132, 174) The Commonwealth described it as a group of 15 t 20.

(T., p. 25) The surveillance video dearly shows Defendant running to his vehicle: d the

teenagers converging on Defendant as he reaches his vehicle and struggling with h as

he, closes or attempts to close his door. One of those running towards: the vehicle as the

victim, House. The witnesses further testified that someone then yelled that Defen ant

had a gun. (T, pp. 87, 132, 174) At that point, some of the attackers, including H use,

3

can be seen on the video running from Defendant's vehicle. Within seconds, at 1 t 3

shots were fired by Defendant, one of which struck House as he was running with his

back to Defendant approximately 40 feet away. (T., pp. 217, 224) The bullet, wh ch was

believed by the medical examiner to be a high velocity bullet such as a .44 caliber struck

the back of the victim's head resulting in his death. (T., pp. 42-45) The medical

examiner also testified that there was no evidence of gunshot residue, soot or stipl g

which would indicate that House was at close range when shot. (T., p. 42) Bernie t, who

was running down Penn Avenue, was shot in his leg, shattering his femur, and . (T.,

pp. 135-140)

Howard .tettified,that after seeing House shot, she saw Defendant standing 'r

pacing outside his vehicle with a silver handgun and then he reentered his vehicle: d

pulled out from the parking. lot.. (T., pp. 89-9:1) As Defendant pulled out of the p king

lot Sgt. Henry Singer of the Wilkinsbnrg Police Department, who received a dispa ch

about.a disturbance, at 12:20 a.m., pulled. into the parking lot. As he had been

approaching the scene, Sgt. Singer heard 4 or 5 gait shots: (T., p..50) He identifie the

video from the surveillance camera which showed Defendant's vehicle pulling out as

pulled into the lot: The video then showed Sgt. Singer approaching the as e lay

in the parking lot. .(T., p. 52) Sgt. Singer testified that he secured the area and late

searched for evidence but found no ahell'easings,.bao., guns or other physical e iderice,

p. 53).

The Commonwealth called Officer Rory McLaughlin, a Department of Ve rans p

Affairs police officer, who testified that at approximately 3:00 a.m. on November 3 he

was dispatched to the VA Hospital by emergency room personnel because Defend nt had

come to the hospital saying he was involved in an incident in which shots were fir .d and

he was injured. McLaughlin was dispatched to search Defendant for weapons. (T ; p.

192) McLaughlin testified that he spoke with Defendant and Defendant described eing

attacked twice, the second time at his car, and that he then left the scene and he m t have

"passed out." (T., p. 194) Defendant did say that shots were fired, however, did n t tell

McLaughlin that he had fired a gun that night. (T., p. 194) He also told McLaugh in that

he had not called the police, but that he needed to call to report the incident. (T., p 195)

McLaughlin found Defendant's cell phone on him, but no weapons. (T., p. 195)

McLaughlin also testified that video surveillance at the hospital showed that Defe ant

entered the hospital at 2:50 a.m. (T., p. 199)

Defendant was subsequently interviewed by Detective Thomas DeFelice o the

Allegheny County Police at approximately 4:30 a.m. Detective DeFelice testified sat

Defendant described the events that night, but stated that "while he was being attac ed he

heard three or four gunshots. He was able to kick a male off of him and he made it to his

truck. He put his truck in reverse and drove away." (T., p. 234) He then said that he

4

blacked out but dmied firing.agun. (T., pp. 234-235) When informed that a guns ot

residue: test could be performed, Defendant told the Detective that he was cleaning his:

gun earlier in the day:. (T.,. p. 236) At trial, Defendant denied owning or. posses$ili any

handguns. (T., pp. 293-294)

The Commonwealth called Detective Matthews of the Allegheny County P lice

who testified that he conducted a search of Defendant's house and vehicle, finding some

ammunition for handguns, including a .44 caliber cartridge on the passenger's side of

Defendant's vehicle, as well as a magazine and a grip for a handgun. However, no

handguns were found. (T., pp. 204-208)

The Commonwealth also called Detective Kinavey of the Allegheny Count

Police who identified a digital sketch and measurements made of the scene of the

shooting which showed that House was 41 feet, 9 inches from Defendant's vehicle when

he was shot in the back of the head. (T., pp. '217,224) He also testified that State olice

gun license records showed that Defendant was not licensed to carry a firearm. (T. p.

218)

At the conclusion of the Commonwealth's case, a colloquy was conducted ith

Defendant regarding the fact that he was not required to testify and Defendant

acknowledged that he wished to testify in his defense. (T., pp. 254-255) Neither a that

time, nor at any time prior thereto, did Defendant or his counsel indicate that Defe ant

was suffering from any type of disability which affected his ability to participate in or

consult with counsel concerning his defense. Defendant acknowledged that he wis ed to

testify in his defense. (T., pp. 254-255)

Defendant testified that he owned the building where the party took place f. r 15

years. (T., p. 257) He rented the room for the party, which was to be for 30 to 40

children between the ages of 11 to 14, and that he asked Edric McArthur, among o ers,

to help him with the party. (T., p. 258) The party started at 9:00 p.m. Defendant d

McArthur patted down the teenagers for weapons as they entered the party. (T., p. 60)

Defendant testified that as the party was concluding he got into a confrontation wi Troy

Cole about his gold chain and during the argument, Cole and three other teenagers

jumped him. (T., p. 265) He said his attackers then ran outside and he shut the do

(T., p. 266) However, McArthur went outside to disperse the group and he then sa

them beating McArthur so he went outside to assist McArthur and was attacked ag

until he and McArthur were able to get back inside. (T., p. 267) He then waited ab ut 10

to 15 minutes and then went outside to get his truck to get some of the younger chil n

home and to get medical attention for himself and McArthur. (T., p. 268) As he we t to

his car, he saw a large group of teenagers running at him and screaming that they w re

going to kill him. As he got to his truck they were grabbing, hitting and pulling hi . (T.,

5

p. 269) He testified that he didn't have a gun, but as he struggled, "One of them at was

standing right directly in front of me, he was grabbing to (sic) my sweater. The n came

out of his coat." (T., p. 269) At that time he instinctively grabbed for the gun at hich

time it went off. He described it as a black revolver. (T., p. 271) He then testifie that

he recalls shooting the gun at least one more time and when he did his attackers,' ere

just there, in front, everyone still. It was just a split second." (T., p. 275) He test fled

that he thought his life was in danger but he didn't try to shoot anyone. (T., p. 27 )

Defendant testified he then went to a friend's house and then to the VA Hospital ir what

he described as a gash on his head, bruises and contusions to his face and defensi e

wounds on his hands, back, and both legs. (T., p. 278) In the attack Defendant al o

sustained or aggravated a hernia that required surgery and he subsequently suffer- a

stroke for which he was in rehabilitation. Defendant testified that because of the oke,

he had "aphasia", which affected his speech, thinking, and his ability to read and rite.

(T., p. 279)

On cross-examination, Defendant denied seeing the police coming onto th scene

as he drove away. (T., p. 283) Defendant stated that he did not go straight to the ospital

because he blacked out. (T., p. 291) He denied the gun was his or that he owned y

handguns. (T., p. 293) He testified that he believed that he dropped the gun used n the

shooting in the parking lot. (T., p. 297) He explained the ammunition in his vehi le as

ammunition that was transferred from one car to another and that may have been s

wife's or someone else's.

The defense also called Edric McArthur who also testified to the fights an

encounters with the teenagers inside and outside the building. (T., pp. 308-311)

However, McArthur did not see or hear the shooting in the parking lot. (T., p. 31

The defense also called Medina El, who had rented the room from Defend t for

her child's 14th birthday party. (T., p. 326) She confirmed the fact that Defendant and

McArthur were beaten up and that the teenagers outside were threatening and sayi g

"they had guns." (T., p. 328) She called 911 because of her fear of the crowd ou 'ide.

She also believed that Defendant was going to his vehicle to help take some of the

younger children home. (T., p. 330)

The defense also called Vlossie Long, Defendant's friend, who testified th

Defendant came to his house about 1:00 to 1:30 a.m. and he appeared to be "a littl bit

beat up." (T., p. 337) He said Defendant kept saying that they "jumped me." (T.,

339) He stated that Defendant stayed about 15 minutes and Long told him to go t the

hospital. (T., p. 343)

The defense also presented character testimony through Long and Chris Su livan,

who testified to Defendant's long involvement in a boxing program in the area whi

6

benefited the young people of the community. (T., p. 355) After being appropriat ly

instructed, the jury found Defendant guilty of voluntary manslaughter, aggravated ssault

and carrying a firearm without a license. This timely appeal followed.

DISCUSSION

Petitioner filed a PCRA Petition on August 22,2014 and an Amended PCRA Petit on aniline

16, 2015. The Commonwealth filed an Answer to the PCRA Petition on October 29, 201 and a

Supplement to Answer to PCRA Petition on April 8, 2016. Petitioner's PCRA Petition an Amended

PCRA Petition included Exhibits A through R, which included an expert report regarding he

enhancement and analysis of the surveillance video. It was stipulated prior to the hearing at the expert

report would be offered into evidence without the necessity of the expert testifying. At th PCRA

hearing Petitioner presented the testimony of his physician, Dr. Susan Hoppe; trial counse Mr. William

Brennan; and, appellate counsel, Wendy Williams. Petitioner did not testify. The Comm wealth

presented the testimony of the prosecutor, Ilan Zur, Petitioner now raises several claims .o error in

failing to find that trial and appellate counsel provided Petitioner. ineffective assistance :of ounsel both

at trial and on appeal.

In order for Petitioner to be entitled to relief On the basis that trial counsel was inef ectiVe,.

Petitioner must show by a preponderance -of the evidence ineffective assistance of counsel hich, in the

circumstances of the particularcase, so .undermined the truth -determining process that nor liable

adjudication of gUilt or innocence could have taken place. Commonwecath.v..Brqdy,..741 *A 2d. 758, 763

(Pa. 'Super. 1999) This standard requires Petitioner to show: (1) that the claim is. of argua le merit; (2)

that counsel had no reasonable, objective basis for his actions;.and(3) that, but for the erro s or

omissions of counsel, there is a reasonable probability that the outcome of the proceedings. ould have

been different, that is, that the petitioner was prejudiced by the. alleged ineffectiveness of c

7

Commonwealth v. Kimball, 724 A.2d 326,333 (1999). Counsel is presumed to be effeeti e, however,

and the burden rests with the petitioner tO overcome that presumption. Commonwealth v. Pierce, 527

A.2d 973, 975 (1987), commonwealth v. Pirela, 580 A.2d 848, 850 (1990), appeal denie 594 A.2d

658:,(1'991). lf a petitioner fails to meet any one of these tluee prongs, then an evidentiar hearing is not

necessary. Commonwealth V. Wells, 578 A.2d 27, 32 (Pa. Super. 1990)

Generally, counsel's assistance is deemed constitutionally effective if he 'chose ',a p 'cular

course of conduct that had some reasonable basis designed to effectuate his client's intere 'Where

matters of strategy and tactics are -concerned, a finding that.a.chosen. strategy lacked area.' onable basis .is

not warranted unless it can be concluded that an alternative not chosen offered a potential or success

substantially greater than the course, actually pursued. To demonstrate prejudice, the petiti ner must

show that "there is a reasonable probability that, but for counsel's unprofessional errors, e result of the

proceedings would have been different." Commonwealth v. King, 618 Pa. 405,57 A,3d 6 , 613 (2012)

(quotation, quotation marks, and citation omitted)." lik] reasonable probability is a prob ility that is

sufficient to undermine confidence in the outcome of the' proceeding.' " Commonwealth Spotz, 84

A.3d 294, 311-12 (2014)

Petitioner first claims that appellate counsel was ineffective for failing to argue on ppeal that

Petitioner was entitled, to 'a new trial as a result of the June 28, 2011 amendments to the la in

Pennsylvania dealing with self defense. On June 28, 2011 Act 10 of 2011 (P.L. 48) was s gned into law

amending 18 Pa. C.S.A. §505(b) dealing with self defense or the castle doctrine in Permsy vania. The

amendments to Act 10 were to take effect in 60 days on August 29,2011. Defendant's tri was held

from December 7 to December 9; 2011 and his appeal to the Superior Court was filed on arch 30,

2011. Appellate counsel filed Petitioner's Amended Brief for Appellant in the Superior C urt on

Feburary 24, 2012. The brief did not address the amendments to §505. Defendant conten that the

8

amendments to §505, specifically the addition of subsection (b)(2.l) and (2.5), should be pplied

retroactively to his case as it was still pending on appeal on the effective dates of the ame dments and

appellate counsel was ineffective for failing to raise the issue that the amendments were 'à. basis for a

new trial. The Commonwealth argues that the amendments should not be applied retroacii vely as the act

did not expressly state that it was retroactive.1 In addition, even if they were to be applie retroactively

Petitioner failed to establish prejudice because regardless of the amendments; Petitioner's se of deadly

force under the circumstances was not reasonable, even if the amendments established, th: the castle

doctrine applied to an actor's "occupied vehicle." Finally, the Commonwealth argues that appellate

counsel did challenge the sufficiency and weight of the evidence on appeal arguing that P titioner had a

reasonable belief that he was, in danger of death or serious bodily injury and that the amen ments to

§505 would not have altered the appellate arguments.

The amendments to the: §505, specifically the addition of subsection ()(2.1) and ( .5),

established a presumption that a person using deadly force had a reasonable belief that de ly force was

immediately necessary to protect himself against death or serious bodily injury if the pers n against

whom the force was used was, in the process of unlawfully and forcefully entering, or had unlawfully

and forcefully entered and is present within, a dwelling, residence or occupied vehicle. In addition, the

amendments added the presumption that a person who unlawfully and by force enters or a empts to

enter an actor's dwelling, residence or occupied vehicle or removes or attempts to remove other

against that other's will from the actor's dwelling, residence or occupied vehicle is prestmi d to be doing

so with the intent to commit an act resulting in death or serious bodily, injury. The amend ents at issue

provide as follows:

"No statute shall be construed to be retroactive unless clearly and manifestly so intended y the

General Assembly." 1 Pa.C.S.A. § 1926

9

(a) Use of force justifiable for protection of the person. --The use of force upon

toward another person is justifiable when the actor believes that such force is

immediately necessary for the purpose of protecting himself against the use of unl wful

force by such other person on the present occasion.

(2.1) Except as otherwise provided in paragraph (2.2), an actor is presumed have

a reasonable belief that deadly force is immediately necessary to protect him if.

against death, serious bodily injury, kidnapping or sexual intercourse compelle by

force or threat if both of the following conditions exist:

(i) The person against whom the force is used is in the process of unlawfully d

I

forcefully entering, or has unlawfully and forcefully entered and is present with' a

,

dwelling, residence or occupied vehicle; or the person against whom the force is sed is

or is attempting to unlawfully and forcefully remove another against that other's w 11 from

the dwelling, residence or occupied vehicle.

(ii) The actor knows or has reason to believe that the unlawful and forceful entry act is .

occurring or has occurred.

(2.5) Unless one of the exceptions under paragraph (2.2) applies, a person who

unlawfully and by force enters or attempts to enter an actor's dwelling, reside ce or

occupied vehicle or removes or attempts to remove another against that other' will

from the actor's dwelling, residence or Occupied vehicle is presumed to be doing so

with the intent to commit:

(i) an act resulting in death or serious bodily injury; or

(ii) kidnapping or sexual intercourse by force or threat.

18 Pa.C.S.A. § 505 (Emphasis added)

The Supreme Court addressed the retroactive application of §505(b)(2.1) in Commonweal h v. Childs,

142 A.3d 823 ( 2016). In Childs the Court considered the question of whether or not Chil s was entitled

to a castle doctrine jury instruction pursuant to 18 Pa.C.S.A. § 505(b)(2.1), which became ffective after

Childs was charged with the crimes at issue but prior to his trial on those charges. The a licable facts

and procedural history in Childs are that in November 2011, Childs was tried for murder d possessing

an instrument of crime after he stabbed the victim who was attacking him with a broomsti k in Childs'

home. The victim and Childs were'arguing outside Childs' home. Childs then went insid his house and

the victim entered Childs' home, who was attempting to hold the screen door to the house losed, and hit

Childs several times with a broomstick. Childs grabbed a knife and stabbed the victim on e in the chest

but he died from the wound and Childs was arrested and charged with homicide and posse sing

10

instruments of crime. At the first trial Childs was convicted a possessing instruments of rime but the

jury deadlocked on the homicide charge. In November 2012,. Childs was tried again on th homicide

charge. The Supreme Court noted that

At both trials, Childs claimed that he acted in self-defense and requested a castle: octrine

jury instruction in conformance with section 505(b)(2.1), providing that the e is a

presumption that he had a reasonable belief that deadly force was immediately ne essary

to protect himself from, serious, bodily injury or death because he was attacked in ide his

residence. MT., 11/10/2011, at 4-5; N.T., 11/16/2012, at 28-29. In respon e, the

Commonwealth did not dispute that the facts of the case entitled Childs to castle

doctrine defense; but objected to Childs request on the basis that, section 505(bX .1) did

not become effective until more than a year after Childs stabbed Victim, and that giving

the instruction would be an improper retroactive application of a substantive la . N.T.,

11/10/2011, at 6-7, N.T., 11/16/2012, at 29. The trial court refused Childs' re est at

both trials. On November 16, 2012, Childs was convicted of third-degree murder e was

subsequently sentenced to a term of sixteen to thirty-two years of imprisonment or the

murder conviction and a consecutive term of five years of probation on e PIC

conviction. Commonwealth v. Childs, 142 A.3d 823,,825-26 (Pa. 2016)

On appeal, the Superior Court found that the trial court erroneously concluded that provid g the jury

instruction would have been a retroactive application of the applicable law and reversed th judgment of

sentence and remanded the case for a new trial, Commonwealth v. Childs, No. 272 EDA 2113, 2014

WL 10788813, (Pa. Super. Ct. Nov. 10,2014), affd 142 A.3d 823 (Pa. 2016) In reviewin the Superior

Court's opinion, it was noted that the sole question before the Superior Court was whether e trial court

correctly concluded that section 505(b)(2.1), should not be applied retroactively. The issue before the

Court was whether the amendment, adding the presumption in 505(b)(2.1) was a procedura or

substantive amendment. Noting the Superior Court's statement that "the law of retroactivity is, less than

a model of clarity" the Court stated:

The Superior Court began by recognizing that "a statute is impermissibly retroacti e if it

'attaches new legal consequences to events completed before its enactment. Retroa tive

application occurs only when the statute or rule relates back a.nd gives a previous

transaction a legal effect different from that which it had under the law in effect wh n it

transpired.' " Commonwealth v. Childs, 272 EDA 2013, 2014 WL 10788813, *7-8

(Pa.Super. Nov. 10, 2014) (quoting Commonwealth v. Robinson, 7 A.3d 868, 871-

(Pa.Super.2010)). The Superior Court further recognized that concerns of impermis ible:

.11

retroactive application arise only where the law at issue

impairs a vested right or

contractual obligation. Id. at 8 (citing Commonwealth v. Johnson 520 Pa.

1654 55 A.2d

897 (1989)).

The Supreme Court noted that although the castle doctrine

existed at common law in Pe ylvania since

its founding, it was not codified in Pennsylvania

until 1972, with the enadtment of 18 Pa. A. j:505.

The Court further stated that §505 codified existing

case law pertaining to self-defense an was intended:

to set forth in a. single rule the law governing the use of

defensive force and that the legisla ure

emphasized that §505 made no substantial change to the

existing law. Childs at 829 (Pa. 2 16)

Regarding the amendments to §505 enacted in 2011, the

Court stated:

This statute remained =changed until the passage

of Act.10 on June 28, 2011. The

preamble to Act 10 explains that its purpose was to

strengthen the right of self-defe e.

See H.B. 40 139th Gen. Assemb., Reg. Sess.

(Pa.2011). In so doing, however, Act 0 did,

not substantively alter the law regarding the use of

deadly force within a residence,

Commonwealth v. Childs, 142 A.3d 823, 829 (Pa. 2016)

In addressing the amendment adding subsection

(2.1) the Court stated:

The presumption created by section 505(b)(2.1)

codifies the inference between -rtain

basic facts (an unlawful and forceful entry and

knowledge thereof, as descri d in -

subsections 505(b)(2.1)(i) and (ii)), and an element of

a castle doctrine defe se (a

reasonable belief that deadly, force is immediately

necessary). Both before and aft r the

enactment of section 505(b)(2.1), a finder of fact

could make this inference, and s ction

505(b)(2.1) merely provides the factfinder with an

evidentiary mechanism to as St in

evaluating the merits of making this inference based upon

the specific facts presen ed in

the case. We note that the current standard jury

instruction directs the jury to "[clo ider

the realities of the situation faced by the

defendant ... when you assess wheth r the

Commonwealth has proved beyond a reasonable doubt

either that [the defendant] d not

believe [he] was actually in danger of death or serious

bodily injury ... or that, whil [the

defendant] did believe that, [that] belief was

unreasonable' Pa.SS.11 (Crim) § 9. 01A

(2012). Commonwealth v. Childs, 142 A.3d 823,

830-31 (Pa. 2016)

It was noted that the Superior Court concluded that

section 505(b)(2.1) did not alter a defen t's rights

concerning claims of self-defense premised on actions

in the home. It reasoned that section 05(b)(2.1)

only "addresses a method of enforcing th[e] right of

self-defense" and is therefore procedur . Because

there is no prohibition on the retroactive application

of a procedural statute, the Superior Co reasoned,

Childs was entitled to a jury instruction regarding

the castle doctrine. On that basis, it vacate' Childs'

12

judgment of sentence and remanded for anew trial. The Supreme Court, affirming the Su - dor Court,

found that:

Section 505 (b)(2.1) does not, as the Commonwealth contends, broaden the right of the

accused when, asserting a castle doctrine defense. Commonwealths Brief at 14. To the

contrary, both before and after the enactment of section 505(b)(2.1), a defend t was

justified in using deadly force' if he or she was not the initial aggressor and had a

reasonable belief that such force was necessary to protect against death, serious bodily

injury, kidnapping, or sexual intercourse compelled by force or threat, and a de endant

had no duty to 'retreat when attacked in his or her dwelling. Likewise; both befi re and

after the enactment of section 505(b)(2.1), the Commonwealth could overcome a c aim of

self-defense under the castle doctrine by establishing that the defendant did not tually

possess the requisite fear or that the defendant's belief was not reasonable. In s m, the

section 505(b)(2.1) presumption does not alter either the elements of a castle I, ctrine

defense or the historical right to use deadly force in one's horne. Instead, it prov des an

evidentiary mechanism to aid in the factfinder's evaluation of the merits of castle

doctrine defense. Conimonwealth v. Childs, 142 A.3d 823, 831-32 (Pa. 2016)

The Court further stated:

Having determined that section 505(b)(2.1) is a procedural statute, the Common ealth's

remaining arguments are rendered moot. As a procedural statute, section 505( )(2.1)

applied to litigation pending at the time of its enactment as well as litigation co enced

following its enactment. Estman, 915 A.2d at 1194. Both of Childs' pros utions

commenced after the enactment of section 505(b)(2.1), and so Childs was entitl d to a

jury instruction in conformance with section 505(b)(2.1). Commonwealth v. Chile s, 142

A.3d 823, 83:5 (Pa. 2016)

It was noted that the Childs was entitled to jury instructions pursuant to 505(b)(2.1) becau e that section

became effective prior to Childs' trials. The Court stated:

As section 505(b)(2.1) was effective at the time of Childs' trials, there is no specter if

improper retroactive application. The statutory evidentiary presumption was in effe t at

the: time of his trial. Retroactivity concerns would arise only if 'a defendant rais

self-defense based on the castle doctrine at a trial prior to August 29, 2011 (the

effective date of section 505(b)(2.1)), and then filed a post-trial motion after A ust

29, 2011, arguing that he was entitled to section 505(h)(2.1) jury instruction at is

trial. That is not the case here. Commonwealth v. Childs, 142 A.3d 823, 833 (Pa. 016)

Based on the foregoing holding in Childs, Petitioner is not entitled to relief on his claim th counsel was

ineffective for failing to raise and argue the amendments to §505(b) on appeal. The Court etermined

that a jury charge regarding the presumption created in 505(b)(2.1) would only be retroacti e to a case in

13

which. a defendant raised a .claim of self defense.based on the castle doctrine in a. trial occ ing"prior' the

effective date Of the act, that is.August.29, 2011. As Petitioner's trial commenced on.Dec tuber 7,. 2010

and the jury returuedits verdict on December 9; 2010.1jefendantwas not entitled to: inst tions based

On.the amendments. to 005(4 Furthermore; to', the extentihat Petitioner argues that he:: as entitled to

an instruction based on the expansion of the casfiedoctrine to'SpecifiOallyincludean "0c :pied vehicle,"

it would appear' that this provision constitutes a substantive amendment which, pursuant t' the holding

in.Child4 would notbe: applied:retroactively.

At the PCRA hearing appellate counsel acknowledged that she did not raise or ar ue the

amendments to §505(b) on appeal stating that:

My reading of the statute and my understanding of the application of the, statute 'w,. s that

although it codified the common law as to the Castle Doctrine which may apply to people

M Mr. Scott's situation, that the statute itself was not retroactive and could not be plied

retroactive because it was not expressly written into the statute that it had retroacti e

application. (T, p. 70)

Based on the decision in Childs, Petitioner was not entitled to anew trial based on the retri active

application of the amendments to §505(b) to Petitioner's trial held in December 20:10. Co sel will not

be deemed ineffective, for failing to raise a meritless claim. Commonwealth v. Tilley, 566 a. 312, 780

Aid 649(2001');

The Commonwealth also argues that even if the amendments were applicable, Peti loner has

failed.todemonstrate prejudice because the "underlying issue-that Petitioner reasonably b ieved that he

'needed to, tire, his gun in order'to avoid death.or serious bodily harm" is not 'affected by thi.

amendments. The.: COMmonwealtli argues that, appellate counsel challenged the sufficiene and weight

of the evidence on appeal Specificallyarguing:that.Petitioner had.a.reasonable belief that h was in

danger of death .or serious bodily injury. at the time thathe fired :the. shots. The:Commonw Ith further

argues that the Superior Court found that there w.as sufficient basis for the jury. to reject Pe 'tiotieris

14

defense claim and the amendment to §505(b) do not alter or affect this conclusion. As n t4 by the

Supreme Court in Childs:

The presumption created by section 5050)(2.1) codifies the inference between Certain

basic facts (an unlawful and forceful entry and knowledge thereof, as desc 'bed in

subsections 505(b)(2.1)(i) and (ii)), and an element of a. castle doctrine de rise (a.

reasonable belief that deadly force is immediately necessary). Both before and ter the

enactment of section 505(b)(2.1), a finder of fact could make this inferen e, and

section 505(b)(2.1) merely provides the factfiader with an evidentiary mecha ism to

assist in evaluating the merits of making this inference based upon the speci c facts

presented in the case. Commonwealth v. Childs, 142 A 3d 823, 830-31 (7016).

(Emphasis added)

hi this case the Commonwealth conceded that at the time Petitioner was attacked e had a

reasonable belief that he was in fear a his life. (T., p. 25) Therefore, the issue of the pre mption in the

amendments to §505 were not at issue. Consequently; Petitioner has failed to establish pr judice.

Petitioner's second allegation of error is that the. Court erred in denying his motion for discovery

to obtain the medical records of William Bennett which were no longer available because e

Commonwealth lost its file and could not produce the records and trial counsel did not ha e a copy of

the records in his file. In his motion Petitioner alleged that counsel was ineffective for fa ing to pursue

the possibility that Bennett was injured as a result of shots fired from another gun other th that fired

by Petitioner. Petitioner: argued that there was certain evidence that tended to establish th Bennett's

wounds were not consistent with being shot by a gun fired by Petitioner ancl that he shout have been

permitted to obtain Bennett's records leave the belief that there may be information in the ecords that

might buttress his theory of other shooters. Petitioner further asserts that his motion for di covery to

obtain Bennett's medical records directly from the hospital should have been granted as th re were

exceptional circumstances to permit the discovery pursuant to Pa.R.Crim.P. 902(E) which provides:

p Except

Requests for Discovery

(1) provided

as in paragraph (E)(2), no discovery shall be permitted at any tage

of the proceedings, except upon leave of court after a showing of exceptional

circumstances. Pa. R. Crim. P. 902(E)(2)

15

Petitioner"asserts that there is evidence that supports his theory ,'and warranted the r quested

discovery. The first is that a supplemental police report of Patrolman Gilbert Stubbs of th Wilkinsburg

Police Department indicates that he arrived pn scene at 00:23 and was asked by Sergeant 'I ger to

attend to Bennett. Stubbs describes encountering Bennett laying on the sidewalk "directly cross the

,;

street from the parking lot, area" and that Bennett indicated he had been shot and that he w "found to

have a small puncture wound just above his right knee with another to the inside of his, left wrist."

(PCRA Petition, Exhibit "F") Petitioner contends that the fact that Stubbs describes Benne t's wound as

a "small, puncture wound" contradicts, the: Commonwealth's theory that Petitioner used al.ge caliber

handgun, such as, a .44 Magnum. However, while, the Commonwealth argued the gun was .44

Magnum, the gun, which Petitioner testified he wrestled from one of his attackers and then dropped in

the parking 'lot after he, shot it, was never recovered.

During trial the Commonwealth called Detective. Matthews of the Allegheny Count Police who

testified that he: conducted a search of Petitioner's house and vehicle and found some amm r

ition for

handguns, including .44 Magnum cartridges in the Petitioner's house and vehicle, as well a' a magazine

and a grips for handguns. In addition, the medical examiner testified that House's fatal wo nd was

consistent with a. .44 Magnum bullet. (See Commonwealth Exhibit 1 which demonstrates small

puncture wound to the back of House's head.) The fact that Patrolman Stubbs characterize' one of

l3ennett's wounds as a small puncture wound is of little significance and does not support e theory that

someone else shot Bennett. The evidence was used to contradict Petitioner's assertion that e (lid not

own any handguns. (T., pp. 204-208)

Petitioner next contends that Bennett was on Penn Avenue and not in the direction 1 the two

muzzle flashes from Petitioner's gun,and Bennett was not, as the, other victim was, specific ly identifierl

16

in the video. As noted above, Patrolman Stubbs described Bennett as being found on th sidewalk

directly across the street from the parking lot and there is no evidence that Bennett was s far beyond the

range of Petitioner's gun fire that he could not, possibly have been, struck when Petitioner fired the gun.

In addition, the fact that Bennett may have not been in the line of fire of the two muzzle ashes from

Petitioner's gun actually captured on the video does not preclude the fact that there may 'h ve been other

shots fired by Petitioner that simply were not captured on the video. As will be discusse in more detail

herein, Petitioner's video expert,. Lars Daniel, concludes after analyzing the video that:

There .are two apparent. muzzle .flashes in the -video at the. fifth frame .at 00:1938 d the *

first frame of 0O:19;39 With the 'low frametate.of the recording, the only thing th t can

be determined from the video. is that two shots were.fired by the..defendant. It* not be

determined if additional sbots. were tired by the.defendant,...or if shots were fir d by

another person'and those muzzle.flaSlieS werebbscured via the environment, oats' e the

lense (sic) of the camera, or not captured by the camera due to the low frame rate. June

10, 2015 Video Forensics Report, Amended PCRA Petition, ..Exhibit "Q," pi 2)

(Emphasis:..added).

There is 'no support in the video. for -the 'theory that some else was.. firing.a.gun. In fact, di analysis of

the video includes the possibility that Petitioner fired all the shots that. were heard' by the . itnesses.

Petitioner's contention. that there were one'or:more other persons 'firing, a gun at thetinie. at. Bennett.

was shotis 'speculation.

Atthe.PCRA hearing triat.cottnsel testified that he had reviewed Bennett's medica records and

did not:see, anything. that.Was relevant to the iSsue of ballistics or whiCh wouldca.use, him s believe that

there' were ballistic issues. Counsel testified:

I know I had reviewed the medical records of ,Mr. Bennett I recall that the

Commonwealth offered to give me a copy of those, and the file at that point was s

copious I chose not to. 1 reviewed them twice. As I read them, I don't recall any

evidence as to what the ballistics were as far as entry and exit. Idont believe the was

any opinion as to what form of handgun would have caused the damage that result d in a

broken femur to the victim. 'I believe he was also shot in the arm. (T., pp. 25-26)

As stated in Commonwecdth v. Reid, 99 A.3d 470 (2014):

17

A. showing of .good cause requires more .than a generic demand for pot ntially

-

exculpatory. evidence; Tather,.. discovery requests in the PCRA. setting m St be

accompanied by an. explanation why the exculpatory information was unavailable prior

counsel and must identify specific documents or items that were not disclosed pre ial or

.

dining trial. proceedings.. Commonwealth v. Carson, 590 Pa.:. 50.1,. 913 A.2d 2 I, 261

(2006) ..("a.. PCRA petitioner.. is not entitled to discovery where he has. not sho n the

existence of requested documents, as speculation that requested documen s will

uncover exculpatory evidence. does not satisfy .the requirements of Rule 902( )(2)"),

Commonwealth v: Reid, 99. A30 470, 498 (2014)

This is nota cage in Whithit is. all6ged that the Commonwealth'failed' to produce relevant. cords or*

documents prior 'to trial or that trial counsel.didnot even.conduct an. examination the re. Ords: Here'

trial counsel.revieWed.the records and determined that the.tecords.:.dictriot.provideArty.evid ce that was

relevant to the case. Petitioner's claim. that the medical records May develop evidence on, e issue. of

causation of Betmett's, injuries is 'speculative and did not .warrantdiscovery pursuant toPa.

902(E), therefore, and the motion for discovery was appropriately denied.

Petitioner next.alleges that dial:counsel:was ineffective in three respects related to 'e

surveillance video. Petltioner. first contends that counsel was ineffective in. failing to objec to.hearsay

1

and expert testimony by Petectivelcinavey explaining how the video' recorded,: or did.

not:r Cord, certain

events with particular'reference *to themuzZle flashes. Petitioner cites the following trial te

timony of

Detective.Kinavey.:

Q. Did you. hear Witnesses indicate there were between four and.five gunshots

A. Idid, .yes.

Q. Did you review the Video..and still 'images?'

A. I did.

Q.. How mariyMuzzle flashes were.. you able.to,identify with certainty?

A. 'Two.

18

Q. And based on your understanding of how these surveillance cameras work,

is there any possible explanation as to why they didn't capture perhaps all of e

muzzle flashes, all of the gunshots?

A. Yes; It was explained to me.

.Q. And. what was that?

A. The explanation given to me was that the way the video captures is it's not like a

video camera that you would have at home where it captures every event. It rapt es

different images. Like, you might see a person take a step. Then he might two

-

steps ahead.

Even on the motion sensor, it just doesn't have the pixels to capture each

individual frame of each individual event. So you may lose like a millise ond. of

each event due to the complexity of the surveillance video as well as the video b ing

guess what they indicates was: it's a large file. So they try. That's why they aVe, it:

on motion sensor as well as collecting the individual different frames. (T., p . 225-

226)

Petitioner contends that counsel was ineffective in failing to object to this testimo y because that

the explanation as to how the video records or captures the movement on the video is ex rt testirnony

that Detective Kinavey was not qualified to give. In addition, as Detective Kinavey state', the

information he was testifying to was "explained" to him and his testimony was clearly he ay.

Petitioner argues that counsel was ineffective in failing to object to Detective Kinavey's testimony and it

was "clearly prejudicial given counsel's intention to argue to the jury the likely presence o shooters

other than Petitioner." (Memorandum in Support ofAmended Petition for Post Convictio Collateral.

Relief, p. 27)

A review of all of the trial testimony concerning the video indicates that these tech ical aspects

of the videos were never in dispute and trial counsel testified at the PCRA hearing that he ade the

decision not, to object to Kinavey's testimony for that reason. At the PCRA hearing cowls I testified:

Well, number one, it, was, there's no doubt about it. I chose not to object at that time.

I had viewed the tape multiple times. I had discussed the tapes with County Police I had

discussed the tapes with the prosecutor involved in that case, and what was being s id is

of course what I was told during the frequent times that I saw those tapes. I knew hat

19.

was going to be said. It seemed to be useless to bring in at that point in time n

expert to testify to what the detective was actually going to say. So, once aga , was it

hearsay, yes, and I chose not to object to it. (T., p. 20) (Emphasis added)

Regarding the question of whether or not Detective Kinavey's testimony was harmful or

prejudicial, trial counsel testified:

Q. Did you consider Detective Kinavey's testimony on this point to be harmfu , that

there were four or five gunshots but the video only showed two of them?

A. Frankly, no. My position was that indeed the defendant I knew was going o take

the witness stand, and he had said at all times, and had said on the witness tand,

there were two shots fired. Obviously we had three to four witnesses testif ing

hearing somewhere in the range of four to five shots fired. Having seen th tape,

we know indeed two gunshot flashes were seen which meant what happen to

the other three which was not shown by that tape. In essence the argument would

have been that those gunshots may have been by the victims or friends of e

victims or whatever else, so I did not see that as per se harmful. (T, pp. 2 21)

On cross examination of Detective Kinavey at trial, trial counsel established that based on is

description of the mariner in which the video was recorded that, in fact, there could have b n two or

three shots fired before the muzzle flashes attributed to Petitioner and that it could not be scertained

"scientifically" the order of any shots that the various witnesses, including Petitioner, testi led they

heard. Regarding the number of shots, trial counsel testified at the PCRA hearing that:

"I recall the detective being on the witness stand and asking him very, very specificsally if

there was any scientific way one can detennine if my client fired any more than tw

shots, and his answer was no." (T., p. 24)

Counsel also pointed out that:

"I outlined to the jury witnesses who claimed that these youth were yelling outside: we

have guns, plural, we have guns. I emphasized the fact that five shots are heard an only

two arguably can be attributed to my client, . . . " (T. p. 25)

In fact, Kinavey's testimony could be used to buttress and confirm Petitioner's testimony t he heard

gun fire before the gun that he wrestled from one of his assailants at his vehicle discharged the first

time.

(T., p. 271)

20

The video expert, Lars Daniel, who analyzed the videos and, issued a report attach d.as Exhibit.

"Q" to the Amended PCRA Petition, confirms Kinavey's, testimony. Kinavey's statement atall gun.

flashes might ñotbecapturedl on the video due to the manner in which the cameras captur d. the: video

was also confirmed by Daniel, who explained it in terms of "low frame rate." Mr. Daniel explains in

his report that upon examining the video he:

. Wound it to have, a frame rate of 6.5 frames per second, or FPF. For .a video't. be

. .

considered live motion (meaning that the video was smooth, not choppy or flickeri g) the

standard is 30 frames per second. (Amended PCRA Petition, Exhibit "Q", p. 1)

Mr. Daniel also states in his report:

I reviewed pages 221 through 227 of the court transcript, which contains a portion f the

testimony of Detective Kinavey. On page 221, Detective Kinavey gives the expl ation

of why there is a gap of approximately 30 seconds between the video files that we

produced from the video surveillance systems by Save A Lot. As a point of clarifi ation,

it is important to note that the "missing" 30 seconds is only between the two files

containing the entirety of the exported video footage. This "missing" video in ni way

impacts the footage of the actual incident and is not related to the explanation of

frame rate provided by Detective Kinavey beginning on page 226. (Amended CRA

Petition, Exhibit "Q", p. 6) (Emphasis added)

In fact, Detective Kinavey's explanation that it is not like a "video camera that you have at home' where

it captures every event" and that it "does not have the pixels to capture each individual ft e:,of each.

individual event" is simply'a less technical explanation of the.same conclusions reached Petitioner's

expert.

Counsel testified that he made the decision not to object to Detective Kinavey's tes mony

because there was "no doubt about it" and there is nothing in the record to support the pres nt claim that

the failure to object was prejudicial because it affected counsel's ability to argue to the j the likely

presence of shooters other than Petitioner. Therefore, to the extent the testimony was eith hearsay or

expert testimony, counsel had a reasonable basis for his strategy, and he was not ineffe,ctiv in following

that course. Commonwealth v. Williams,.899 A.2d 1060, 1063-64(2006),

21

Petitioner next contends that counsel was ineffective for failing to have the videos professionally

enhanced and analyzed and expert testimony presented regarding that analysis which ,w9 Id have lead

the jury to reach a different verdict. However, upon review of the report and after careful review of the

both the video of the shooting presented at trial and the enhanced, video, there are no sign 'ficant or

meaningful differences in the videos. The enhanced video is, in fact, somewhat brighter areas where

there is more illumination, that is in the foreground directly under the street lights and in e background

from signs or lights on or near Penn Avenue. 'In addition, while Petitioner's shirt is bright r as he is seen

approaching and entering his vehicle, the figures seen rushing toward his vehicle are not s gnificantly

clearer or brighter and the events for several seconds at or around the vehicle are not signi icantly

enhanced. Based on the review of the enhanced video and its analysis, there is no reason le probability

that the outcome of the trial would have been any different, if the proffered expert testimo 'y and video

had been presented at trial.

Mr. Daniel indicates in his: report that:

I was asked to determine the amount of time between the change of direction of th

crowd approaching the defendant's vehicle and the first muzzle flash. '1 was also ked to

examine the video as it relates to the number of alleged muzzle flashes and if muz le

flashes could have been 'missed' in the recording due to the frame rate of the video

(Amended PCRA Petition, Exhibit "Q", p. 1)

Addressing the issue of the time between the reversal of the crowd and 'the muzzle ash, Mr.

i

Daniel concludes that:

At the sixth frame of 00:19:36 the victim turned and begins to change direction

occurring before the crowd changing direction; the crowd then begins to change

direction at the fifth frame of 00:19:37. At the fifth frame of 00:19:38 the firs

muzzle flash can be seen. The second muzzle flash follows three frames after the first,

or approximately .4 seconds after the first muzzle flash on the first frame of 00:19: 9.

(Emphasis added)

22

Mr. Daniel reaches the conclusion that time between the change of direction of the, cr wd and the

"first muzile flash is one second. However, he also concludes that the victim changes dir tion before

'the crowd changes direction, that. is., the victim .changes direction at 00:19:3.6 and is shot. t 00:19:38.

Petitioner claims, that, counsel was ineffective in 'failing to present expert testirndn regarding the

video because it would have: establiShed conclusively the -short time that PetitiOnerhad :to ctually

perceive that the *erowd'' was retreating, that is. one: second, and the time that the first mu zle flash

occurred. Petitioner asserts that this analysis could have been used to counter the argume t of the

prosecutor that the time was 21 or 3 seconds. In his opening statement the 'prosecutor sugg ted to the

jury that Upon seeing the video. that "Whenfires.thatfitstshot, as you can see in the video at least two,

Closer tot= seconds have now passed. Three full Seconds...have passed since: these kids are now

retreating! .and.that is. thecrux of this, that they are, in fact, retreating." (T.., :pp. 26-27) P' titioner

contends that, trial counsel. imprOperty accepted this statement and did not attempt to refut it. This

statement of the. tinie *between the crowd retreating and the first 'shot was notrepeated in e

Cotinitonwealth's testimony or by theprosecutorin closing. However,PetitiOnees'trial .c tinsel did

refer:M.4.in his, closing by-stating 'that the Commonwealth's argurnent.that the mob was fl eing for "two

or three". seconds was' not afl that the jury should consider in assessing. the. circumstances at lead

Petitioner to believe that he had a reasonable. belief that his life was in danger, Counsel, r then than

conceding that only "two Or three" seconds was the tinteinvolyed that the:jury should con, ider, was in

fact arguing that the.jury should Consider.* events of. the entire night. Conmel.stated, quoting, the

Court's charge to be given on. self defense,

"Now my point is simply this: What this paragraph tells you, it's context. It wasp that

second at the car. It was the evening of the assault after assault after assault it w s the

beating on the door say "We got guns." It was the assault outside the door. It was at the

car itself. " (T., p. 430) (Emphasis added)

23

In fact, this argument was consistent with Petitioner's testimony and the: argument that Pet tioner

was not even aware that the crowd was fleeing. (T., p. 431) At the PCRA hearing trial c set

testified, as follows :

Q. Well, did 'you think.therefOre it might be useful to have an expert to tell yo,

exactly how.long.the..period.oftime was,. whether it was one 'Second or.thre

!second?

A. I did not retain one, sir, and I did not think in terms of that.

Q. Okay. You argued to the jury that he was in fear of his life. The DA agre d he

was in fear of his life. Isn't time to think or retreat a critical element there?

A. Certainly the lapse of time would be".a factor in this case, there's no doubt a out it.

Q. -

So you felt comfortable maybe I'm beating a dead horse here -- you felt

comfortable with you just eyeballing it?

A. I thought that when one looks at the tape -- and of course, as you're aware, this

case the jury had the tape as well with them in the jury room. When one Joked at

the tape still by still, it would appear to me that -- it appeared to be a very, ery

fast action. Now, what is defined by fast action. Again, according to the

defendant in the case, he indicates at the time between shot one and shot twi was

'a "split second. That was his term. (T., p. 27)

Trial counsel further testified that he viewed the videos: repeatedly .and he Was Concerned at if the

video .were enhanced that it could.beharmful to. the Petitioner as it. was conceded, by the. Ci

mmonwealth

..that Petitioner was being attacked and was infear for his. life. Counsel testified that the vid o

did.not

show the: gun in the Petitioner"S hand andif an enhancement had.been.done, it could haves pwrkhim

:pciinting the gun. Counsel testified. thatthelestimOny of Petitioner was that although he fir

d the gun,. he

never aimedit. If the.enhancemerit showed .him aiming the gun at the crowd as they were ing away,.

it could be potentially harmful to the Petitioner. (T., p. 22)

The proffered expert testimony establishes that there was one second from' when th; crowd

began retreating and the first muzzle flash', however, it is unclear how the expert

determine exactly

24

when the "crowd" began "retreating" because the movements of the individuals, especiall those in dote

proximity to the vehicle, even in the enhanced video, are less than clear. The expert also concludes: that

there were two seconds between when House, who did not reach the vehicle, began retrea ing and the,

first muzzle flash. Petitioner contends that if the jury would have been told that there was only one

second for Petitioner to perceive that the crowd was retreating, as opposed to two seconds that there is a

reasonable probability that the result would have been different. However, this argument ails because it

does not take into account, all of the evidence that supports the Commonwealth 's contenti n that,

whether it was one second or two seconds, Petitioner, absent a credible explanation, had ti have

perceived that the Crowd was running away. The timing of the retreating crowd and they tim as

described by the expert was, not so significantly different from that which could be percei ed by the jury

by viewing the' video and does not lead to the conclusion that the, expert testimony would ave affected

the, outcome of the trial. There was nothing in the expert report regarding the analysis oft e videos or

the enhanced video itself which establishes that Petitioner was prejudiced by any alleged effectiveness

of counsel in failing to present expert testimony regarding the videos, and this claim was a ipropriately

denied.

Petitioner next claims that counsel was ineffective in, failing to show the jury the vi eo at full

speed instead of half speed. Petitioner argues that by not playing it a full speed it allowed

Commonwealth to' "artificially increase the apparent time lapse, exaggerating the time wt in which

Petitioner was being asked to switch over from legitimate fear for his life when being rush d by the

mob. . ." (PCRA Petition, p. 25) However, trial counsel testified as follows:

Q. Is there any reason why you didn't have it played for the jury at full speed?

A. Well, there are certain' factors that help the defense by playing it at half spe d.

When you looked at it at full speed I'm sorry, at full speed it is somewhat of ,a -

blur. When you look at it at half speed, you basically see this gang of you come

over a hillside, it would seems to swarm this gentlemen's car, to jump on di car.

25

They were on the roof, they were on the hood, they were on the windshield and

of course part of the defense in this case, the major part was the fear he w in at

the time, andI think showing it at halfspeed Was able. to Capture that as op tosed

to full. speed it .would not.

Q. So you don't think showing it at full speed would have shown the full fear

confusion of the incident?

A. I don't believe so, no. (T., p.

Counsel, after having reviewed the video numerous time prior to trial, made a reasonable s ategic

decision that it was better to show the video at half speed. A review of the video at both h If speed and

full speed demonstrates that not only does playing the video at half speed prolong the time that it shows

the crowd rushing the vehicle, it prolongs the time that the crowd is seen engaging with Pe Wolter at his

vehicle. Petitioner testified to what he perceived as a prolonged struggle with some in the rowd

punching and pulling him from the vehicle, which occurred from when he first reached the vehicle until

they began retreating. From a review of the video, it appears that the crowd reaches his ye idle door at

00:19:30 and begins retreating no later than 00:19:37, as described in the expert report. A half speed

the period of the attack appears longer than when viewed at full speed. Therefore, while re may be

countervailing arguments as to whether the video should have been shown to the jury at fu speed or

half speed, trial counsel's strategy to show it at half speed was reasonable and he was not ' effective in

doing so.2

Petitioner next asserts that the court erred in finding that trial counsel was not ineff ctive for

failing to show the jury the available surveillance video clips showing mass movements of e crowd of

teenagers rushing towards and away from the entranceway to the party premises and for no presenting

evidence corroborating the 911 calls made by Petitioner and Medina El, a defense witness,'nor to the

2 While the prosecutor testified at the PCRA hearing that during deliberations the jury had e videos

and a computer and could have viewed the video at full speed, there is no conclusive evide cc that the

jury viewed at full speed. (T.. pp. 73-77)

26

shooting. As to the surveillanc,e videos,, Petitioner presented with his Amended PCRA Pe tion videos

obtained in discovery showing the, events outside the entrance to the party room. Petition,, claims

counsel was ineffective for failing to show the jury the surveillance video becaUseit'woulu have

corroborated The fact that the Petitioner, as well as others in the party room, had a reasona le fear of the

crowd. However; there was no significant dispute in this case that there was a large group if teenagers

outside the door of the party room and that there were altercations that, took place. Petitio er

acknowledges in' his Petition that, "these clips clearly tended to corroborate the assaults up inthe door

and upon Mr. McArthur testified to by the Defendant's witnesses, as well as by the Comm nwealth's

witness, Troy Cole." Mr. Cole testified at length concerning the altercations that look pla e both inside

the building and outside stating:

A. It seemed like the crowd was start' closing in on him.

Q. Okay,.

A. And then once he start smacking the chairs together, the crowd, they start, I e,

backing up. And then somebody threw a crate. I didn't quite see who threw it, but

they threw a crate and hit him. Then the crowd attacked the security guard. at's

when Mr. Scott came out.

Q. 'Okay. So a crate? Are you talking like - -

A. Like a milk carton crate.

Q. Like a plastic crate? You didn't see who threw it, but he got hit?

A. Yes.

Q. And then the crowd jumped him?

A. The crowd started attacking him, took the chair off of him and started

hitting him with them. Mr. Scott came out, and they did the same to h m.

Q. How many kids are we talking about?

A. A lot of kids. Like,,! can't even remember. I know a lot of kids, more 't an

the people that's In here. (T., p. 169) (Emphasis added)

27

In addition, Edric McArthur, Meclina El and Petitioner also testified as to these events and

Commonwealth never disputed that these events took place. Trial Counsel testified that h did not show

the videos because they were cumulative, stating:

The only thing I can say with hindsight is that it was cumulative. We had a numbe of

witnesses there, Miss El, and all the way through. As far as this mass crowd of yo

banging on the door saying words to the effect "we have guns", we have witnesses ho

place that one poor man outside and being attacked by fifteen youth at one time. A ain, I

was aware of the fact that on cross or whatever else there was no challenge to what ad

happened at scene one. Now, arguably if I had played the tape of the youth going ti ward

that door in scene one would that have enhanced that sense of fear? Possibly. (T., p.

35-36)

Clearly the evidence suggested by Petitioner was cumulative and counsel was not ineffecti e for failing

to present cumulative evidence.. A defendant is not prejudiced by the failure of counsel to resent

merely cumulative evidence. Commonwealth. v. Spatz, 896 A.2d 1191, 1229(2006)

Petitioner also argues that counsel was ineffective because he: "left uncorroborated d therefore

opened to disbelief the testimony by Petitioner and Mr. McArthur that they had twice call 911 for

assistance and by Medina El that she had called 911, as well." Medina El testified as folio s:

Q. Did you see the assault on Mr. Scott inside that room?

A. Yes. They started hitting hirn with chairs_ They were, like, all surround 8

him hitting him with chairs when they were trying to get them out the door, get em

out the door. The broke tables. It was just very chaotic. Once they got them o side

of the building where the party was, hey start kicking on the doors, kicking, scream

they had guns.

I actually called 911 from my phone, and! told the operator that they w re

acting crazy co the other side of the door because we couldn't get out. We

couldn't get out of the place. They were still kicking on the door, screaming they d

guns, all types of stuff. "Open this fing door."

They were just cussing, and a lot of children that were inside of the party w re

just scared, terrified. They were crying. We were trying to contain the child en,

audI that's all I could think of was to call 911. (T., pp. 328-329) (Emphasis add

28

Trial counsel also testified that evidence. to corroborate that calls wereAtade: to 911 was n t.offered.

because thefactliat the calls were made.was undisputed, and such evidence would haye b en

cumulative. 3CounSel.testified:

Q. Did you present the testimony that there were prior calls to the Wilkinsbur

Police?

A. The testimony came from the client, the defendant on the witness stand.

called a Miss El. Miss El indicated that she had made two telephone calls

Wilkinsburg -- she made, two 911 calls, and she was asked at the scene if s

knew specifically if the defendant made calls. She said she did. not know.

defendant took the witness stand and said I believe he made two calls.

Q. Did you attempt to get 911 recordings or evidence that he had actually ma calls

to the police?

A. I did not.

Q. And why not?

A. Because it was basically unrebutted in this case. The incident -- I used the erm

crime scene one of what happened in that so-called party room, party room

outside of that, and the witnesses put on, including one of the defense wiM sses, I

believe, a Mr. Troy Coles, basically was =rebutted as to what specifically

happened in that area, outside of that area. And as far as I remember, it wa not

even challenged by the Commonwealth in this case, so I felt no need to

corroborate the 'issue of the telephone calls.

We had two witnesses. Miss El was excellent, and there was no challenge ii the

fact that she ma.de those calls. (T., pp. 30-31)

Petitioner contends that corroboration of the above referenced evidence was important to' stablish the

fact that Petitioner was in fear of his life at the time of the shooting. However, this issue s never in

dispute. In fact, the prosecutor conceded this point in his opening statement saying:

They rushed him as he was entering his car. He made it into the car. All the kids e

right on the car, and you can make that out on the video. At that point, like.! said to

3Sergeant Singer also testified that he was responding :to ,,.a call about a disturbance spillin ,out "Onto

Stoner Way, when he came upon the scene of the shooting. (T., p.. 49)

29

you,. I.'01 not pinto argue to, you to the contrary. He. was in certain fear fo his life.

at thatipoint, and that is.clear and nOt contradicted.. (T.,. p. 2.5) (Emphasis 'add )

Counsel was, therefore, not ineffective in. failing to present evidence to corroborate the disputed

testimony regarding the events outside the patty room and...the 911 calls and this. Claim is . eritless.

Petitioner'next contends that. trial counsel was ineffective. for failing to .aggressive y impeach the

commonwealth's witness, Shenita Howard, and fOrrefitSinga jury charge which would h ye singled her

out as a witness who made prior. inconsistentstatements,. Specifically,.P.etitionerargues at Ms.

Howard was the witness relied upon by the Commonwealth to establish that Petitioner w s drunk and

*unruly throughout *Tarty, the. aggressor in thefightingthat subsequently 'ensued and th the acted

inappropriately towards certain girls. Petitioner also contends that it .was..HoWard Who ch ged her story

from interview to interview. and who most raditallyzOntradieted the objective facts as rep red by the.

surveillance video.

TheronamortWealth argues that trialcounsel did.effectively cross-examine How. i regarding

inconsistencies betweeither trial testimony, statements tothe..police and her testimony at eprelfininary

hearing. A"review Of Howard's direct and.cross examination demonstrates that trial Court effectively

crOssedetamined Howard by having:het-admit that the.Smoked.marijnana with her uncle, the victim

House, a couplehours before the party, (T.,.p. 95); thatshe :gave statements that were inc nsistent with.

Troy Colesregardingthe attack on McArthur, (T., p. 102); that she attended .4 "good. nu her" of parties,

in the past where there. are'pat downs for 'weapons, (T.,. p. 97); that Petitionermayhave mi interpreted

some of thedancing that partygoers were engaged in as fights, (T, 99);.thatanotherfe ale .adult at

the.party thought there was. alight. going on.atthe party, (T., p. 100);. and, that her testitno atthe

py.

preliminary hearing regarding the number of shots.. she heard was inconsistent .with het tri testimony.

(T., p. 114) In addition, by questioning Howard c.onceming.herrec011ections and observa ons, which

were directly contradicted by the video evidence, ttialtoUnsel eleatlytteated doubts iabou Howard's

30

credibility. In his closing argument, trial counsel not only argued that Howard was, biased d gave

inconsistent and incredible testimony but also, suggested that her testimony was of little si ificance. (T.,

pp. 398-399) Therefore, counsel was not ineffective in, failing cross examine Howard.

Petitioner next contends that trial counsel was, ineffective for consenting to the Co onwealth's

request that the instruction regarding inconsistent statements not "single out" Howard. (T., 359) At

the PCRA hearing counsel testified:

1 know that the Court had offered to direct it very specifically to Miss Howard, and

perhaps I should have joined in on that, it made sense, but at the same time I am no sure

that there was any damage done as a tesult (T., p. 61)

The jury received an instruction regarding prior inconsistent statements of a witness and th t it could

consider those inconsistent statements in assessing the credibility and the weight of the test mony. (T., p.

481) In light of the instructions to the jury and the inconsistencies in Howard's testimony hat were

developed on cross examination, Petitioner has failed to prove that the failure to single out oward

during the jury charge was prejudicial.

Petitioner next contends that counsel was ineffective in failing to submit a motion .i litnine

objecting to the prosecution's use of criinen falsi, convictions against a defense witness, Edr c McArthur,

when those convictions were stale pursuant to Pa.R.E. 609(b) which provides:

(a) In General. For the purpose of attacking the credibility of any witness, evidence at

the witness has been convicted of a crime, whether by verdict or by plea of guilty o nolo

contendere, must be admitted if it involved dishonesty or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if mor than

10 years have passed since the witness's conviction or release from confmement for t,

whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable writtennotice of the intent to us

so that the party has a fair opportunity to contest its use. Pa.R.E. 609

A review of McArthur's testimony shows that it dealt primarily with the events and altercations

that: took: place in the party room and outside in the alley as the teenagers were leaving. (T., i p. 304-314)

31.

As noted 'above, there Wasno, substantial ordispute concerning, those 'facts, Which were a so testified to

by other defense witnesses and a Commonwealth witness. McArthur also testified that'a he was

locking up the room :after the event he did nothear any shots n, the parking. lot, ,did. not w tness the

eVents, iifthe parking. lot and did not. see Petitioner that night after he left to get in his car. (T., pp. 321-

322) .At the. conclusion of his. testimony, the prosecutor cross-examined McArthur with r spect to his

conviCtion.and..sentenceof.5 to 10 years.for.robbery and a guilty plea to receiving stolen operty for

which he received 5 years, probation. ,(T., p. 323) Trial 'counsel testified that' it was amis ake not to

challenge the use of the 'convictions in McArthur's cross examination. (T., pp. 4142) In ddition, the

Commonwealth concedes the convictions:were stale pursuant to 609(b), however, argues at when

Considered in the .contextof the. totality of the evidence presented at trial, the error does n t undermine

confidence in the verdict.

Petitioner cOntendS...that he was, relying upon McArthties testimony to. vouch for P titioner's

sobriety and reasonable behavior during.the early events, of the evening.a.nd to corroborat Petitioner's

aridly's. El's description Ofthe out of control mob which was ;gathered

outside the.partypremises once the teenagers. had been asked. to.exit. However, as rioted boVe, 'there

were both Commonwealth and defense witnesses that..testified. concerning. those events w ich..were the

subject of McArthur's testimony 'and, it :is clear that McArthur'Stestintony was cumulative Although

counsel was ineffective in failing to object to'the use ofthe stale convictions to imPeach c.Arthur,

Petitioner hasfailed to prove any prejudice...and this claim is ineritleSs..

Petitioner next contends that it was error to firid that trial* counsel was not ineffecti e for failing

to present facts showing that. Petitioner's ability to perceive. what was happening at the ti of the

incidentwere:,.adversely affected by hisphysical condition. Petitioner attached as ..Exhibi "K" to his

PCRA Petitioner's, medical records from the Veterans Administration hospital fOr his treat ent on

32

November 23, 2008. Petitioner attaches a radiology report of November 23,2008 from a T :scan of his.

head which. Petitioner indicates documents that he was suffering from "frontoparietal soft issue swelling

on the left side corresponding to area of injury without fracture or contusion." In, addition ere is a

progress note that notes a small abrasion under the left eye and a 1/2 cm. curvilinear lacera 0.0 On the

mid -forehead which was described as being "superficial." The. records indicate:that he ha a thief

complaint "getting assaulted tonight, laceration to theleft forehead, under left:eye, report d loss of

consciousness, hematoma left side of the forehead." While these records do document s e of the

injuries that Petitioner suffered, these injuries do not appear to be significant and there are ortions of

the record that are arguably harmful to Petitioner as it pertains to his injuries and physical ondition.

For example the records note that he is "alert and oriented," that his nose is "not swollen," at the:

laceration is "dermal only," and the laceration is "superficial." The records do not docume t 'any

significant treatment and there is no indication that he required any stitches or bandages to e head

laceration. In addition, there are portions of the records that contradict Petitioner's trial to timony

regarding the incident itself, such as his statement that during the attack at his vehicle, "He states he was:

hit in the head and fell to the ground, losing consciousness briefly. He then woke up and ove himself

here to the ECC to be seen." (Exhibit :-.Progress.Notes) This statement is contradict by the' video

that does not show Petitioner'being knocked' to the ground or suffering any period of unco ciousness

nor does it account for the period of time that he went to his friend's house after the shoot

There is little in the records from the Veterans Administration Hospital that support the

contention that Petitioner would not have been able to perceive what was occurring during e incident.

Importantly, although Petitioner testified that he had sustained some injuries during the al cation in the

party room with Cole, Petitioner never testified that he was bleeding or suffered any other jury that

affected his ability to perceive what was occurring when he left the building and went to hi vehicle.

33

Petitioner testified that he suffered "a: little blank out" after the gun he allegedly grabbed om one of the

attackers fired, but, never attributed this "blank out" to any specific injury. (T., p. 283)

Petitioner also argues that counsel failed to admit the complete set of photographs of the

able

Petitioner's. "various scrapes and cuts" which would have supported Petitioner's claims of ot being

to see clearly as events unfolded because blood having gotten into his eye. (PCRA Petiti n, Exhibit

"L") However, in reviewing Exhibit " L," one of the photographs of Petitioner's face an head showing

the laceration on the left forehead and left cheek had already been adrnitted into evidence as

Commonwealth Exhibit No. 193. The Commonwealth also offered in to evidence Exhibi s 194, 195,

196 which are photographs of Petitioner's hands and knees. While Exhibit "L" does con 'n three

additional close up photographs of Petitioner's face showing closer views of the laceratio on

Petitioner's forehead and cheek, they do not demonstrate injuries that would affect: his ab ity to perceive

what was happening at the time a the incident. A review of the other photographs attac a.s Exhibit

"L" show what appear to be relatively minor scrapes on the back of his hands and 'muck' , his left knee

and right shin, the left side of his back and his right arm. These photos would have no b ng on his

ability to perceive the events surrounding the shooting. Petitioner fails to demonstrate 'h w the failure to

offer the photographs prejudiced him and this claim is without merit.

Petitioner also claims that trial counsel was ineffective in failing to present expe medical

testimony to explain to the jury the effects of the stroke that Petitioner suffered while on" ergoing

surgery in February of 2010 for a hernia and the impact of his symptoms on his ability t s testify. At the

PCRA hearing Petitioner presented the testhriony of Dr. Susan Hoppe., Dr. Hoppe, who s board

certified in internal medicine, testified that she was Petitioner's, treating physician from 009 to 2010

and that she had reviewed his medical records for the period from February 2010 to Dec mber 2011.

(T., p. 7) Dr. Hoppe testified that. Petitioner had suffered a left parietal infarct diat left h in with

34

difficulties both in expressing himself atid understanding speech. (T., p.9) She testified at the stroke

also caused some mild cognitive difficulties and memory impairment. (T., p. 9) Dr. Ho e testified that

Petitioner had expressive aphasia which included phonemic paraphasia which meant that e might

confuse certain words, for example "he might want to say the word cat and instead he wo id say the

word can." (T., p. 9) In addition, she, testified that Petitioner might suffer some difficult with

comprehension , such that he would not answer a question in a way that showed that he derstood the

question. She also testified that the aphasia could be greater under stress such as when h would be

testifying in court. (T., p.10) She testified that the effect of this could be that he would g t upset and in

attempting to express himself might become tearful. She could not testify if the aphasia ould make his

mood labile. (T., p. 11) Dr. Hoppe also testified that she had witnessed some tearfulness and frustration

which was not typical of Petitioner before his stroke. She testified that it was often neces ary to repeat

things several times to a patient with aphasia. (T., p.12) She further testified that stroke uld affect

short-term memory. On cross examination Dr. Hoppe acknowledged that she was not pre ent during

Petitioner's trial and ,that it would be hard for her to actually know how Petitioner respon ed to

questions based on reading the transcript. (T., P. 14) She also acknowledged that in her eport of

February 2015 she stated that his comprehension deficits would be generally mild. She al o stated that

his ability to remember the actual events of the incident which occurred in 2008 would no have been

affected by the' stroke. (T., p. 15)

Petitioner alleges that counsel was ineffective in failing to call Dr. Hoppe or prese t other expert

testimony to establish the effects of Petitioner's aphasia because a physician would have b tter explained

to the jury any difficulties that Petitioner might exhibit in responding to questions or testif ing, which

might be constmed by the jury as Petitioner being evasive or unsure of his testimony. Pe tioner also

. 35

specifically refers to Petitioner's cross-examination in which the prosecutor questioned P titioner about

his crying during his testimony earlier in the day, stating:

Q. Are you sure that wasn't just a ploy to get sympathy from the jury and that you

weren't really crying? Because there was no tears; right?

A. I was trying back, pulling everything back. I was trying testimony withou crying.

Q. So you're actually saying :those' were real, honest emotions about the cryin ?

A. Yes.

Q. But your eyes didn't get red? Your, nose wasn't running?

A. Yes, my nose running, yes. (T., pp. 280-281)

In addition, duting his closing argument, the prosecutor argued:

"And the way he testified, I really hope that you saw it. I hope you saw through at

facade. I hope you saw through the fake crying, the exaggerated stuttering when I was

questioning him as opposed to when Mr. Brennan was, his claim of lack of merno y, how

he doesn't know what's going on. It's an act for you. It's an act for you to sympa ize

with him, but I hope you saw through it. (T., pp. 453-453)

Petitionerargues that medical testimony confirming his condition would have precludeds ch questions

or argument or,.at theVery least, lessened their impact.

At the PCRA hearing' trial counsel testified -that he was awarathat Petitioner had: fered

.stroke: and was' undergoing rehabiritation:And,...."Wanted 'to make sure that be could respond appropriately

N.vben.ealled tothe witness stand." (T., p. 43) ;He testified that he noted that the aphasia. .ifeSted

itself in his discussions" with Petitioner, stating:*

"Typically if.! was posing 'questions to him on ;direct, sometimes it would simply t

a time frame:to:answer. I would ask a.question,; and.typically he Would raise is

finger and;he would give an answer, or then he woUld just say to me: can you wail a

second? Andi would. wait. for a second, and he. would give inewhatthe appropria

answer was, at least it Was an answer consistent with the prior interviews with him ".

p. 43)

36

Counsel testified that he, met frequently with Petitioner, who was out on bail, to prepare, fir trial and -that

he did not recall any tendency by Petitioner to omit words, have difficulty with complex entences, or

difficulty with comprehension or having to explain things "more than once." He did des 'be Petitioner

exhibiting what he called a "pregnant pause" between being asked a question and respon ing. CT., p.

44) Counsel also indicated that while he knew about Petitiones aphasia, he did not, cons It with an

expert but "read up on the subject area." (T., p. 45) Counsel also testified that he did con ider that the,

jury might interpret the symptoms as .a lack of forthrightness and, therefore, elicited testi ony from

ir

Petitioner that he suffered a stroke while undergoing surgery for a hernia that was aggrav ted on the

night of the incident. (T., p. 78) Petitioner testified as follows at trial:

Q. So did you suffer that stroke during surgery at the VA Hospital?

A. Correct.

Q. Are you in rehab for that now?

A. Yes.

Q. And how long have you been in rehab as a result 'of the stroke that you su red

while in surgery for the hernia?

A. Every week, and I had to stay for 30 days at the VA in Aspinwall.

Q. And, sir, what effect has that stroke had on you?

A. I have aphasia. It's called aphasia.

Q. What's that mean, sir?

A. My coordination of my speech and, my, thinking, and 'I can't-- could read nd

write' a lot.

Q. And that affects you as of right now, sir? Did you mean to shoot or kill an one at

all, Mr. Scott?

A. No. No. (T., pp. 278-279)

37

Petitioner contends that counsel was ineffective because the failure to obtain expe testimony

left Petitioner wide open to the remarks made by the prosecutor questioning the reality of ;' etitioner's

symptoms. In addition, Petitioner argues that his own testimony and the remarks of trial ounsel in his

closing argument did not carry the weight that the testimony of a medical professional wo Id have

carried. Clearly, presenting medical testimony would have more clearly explained to the ury the

symptoms of aphasia. Such testimony may have given the prosecutor pause in questionin Petitioner's

symptoms and making the argument that his symptoms were a facade. However, it app that, the

emphasis in, the prosecutor's argument was that Petitioner's difficulties in testifying appe d to, manifest

themselves during his cross-examination as compared to his direct examination and were H

attempt to -

garner sympathy, which should not be considered in rendering a verdict. (T., p. 453)

Finally, neither Dr. Hoppe nor Petitioner testified at the PCRA hearing to any part- ular

instances during the trial, where he failed to understand a question or demonstrated a lack f ability to

express himself and answer questions correctly. Dr. Hoppe, testified that it would be diffi It for her to

point out, simply from reading the transcript, any particular difficulties that Petitioner had uring trial.

However Petitioner did not testify at the PCRA hearing to any significant difficulties that e

experienced. There was no testimony from Petitioner, after having had an opportunity to, view the trial,

transcript, to instances in which he believed that he experienced any inability to understan the questions

or respond fully and appropriately as a result of his aphasia. It 'was"previously noted in th 1925(b)

Opinion previously filed in this case that this Court did' not' witness any significant difficul y that

Petitioner had in testifying due to his aphasia. While expert medical testimony may have ore clearly

established, the effects of Petitioner's stroke and aphasia there is not sufficient evidence, to stablish that

Petitioner was prejudiced by any failure, to call an expert witness to address this issue.

38

Petitioner next contends that the trial court erred, in finding that trial counsel was ot ineffective

in, failing to challenge the, deficient jury instruction with respect to the defense of justific ion which

excluded die word "complete" when instructing the jury that the Petitioner knew that he c uld avoid the

"necessity of using deadly force with complete.,safety," The relevant portion of the charg from the

transcript states:

Consider the realities of the situation faced by the defendant here, when you asses

whether the Commonwealth has proven beyond a reasonable doubt either that he id not

believe he was in actual danger of death or serious bodily injury to the extent that e

needed to use such force in self-defense or that while he did believe, it was unreas enable

for him to do so, or that the defendant knew that he could have avoided the necess ty of

using deadly force with safety by retreating but he failed to do so. (T., p. 484)

The instruction does not contain the word' "complete" and in its post hearing, subm ssion the

Commonwealth indicates that it confirmed with the' court reporter that there is no indicati n that the

transcript is inaccurate. Trial counsel testified at the PCRA hearing that he did not object er request

additional instructions because he did not hear that the word "complete" was not used in: e charge. (T.,

p. 49) Petitioner argues that the omission of the word "complete" from the charge was o great

important because Petitioner had been subject to not just one but to repeated attacks by th same mob of

teenagers and that, "under: those circumstances, the concept, of safety was clearly a relativ term and the

difference between potential safety and 'complete' safety was, very large." (Memorandum in Support of

Amended PCRA Petition, p. 53) While there is no dispute that the word "complete" is in uded in the

standard instruction 9.501 'on "Justification: Use of Force/Deadly Force in Self-Defense w ich was

being read to the jury and was inadvertently omitted, it is also clear that there was no imp' per

qualifying words use to describe the concept of safety such as "potential" or "possible." he

instructions as whole conveyed to the jury the concept that the Commonwealth had the b den of

proving an one of three elements regarding self defense, which included that the defendan knew he

39

could avoid the necessity of using deadly force with safety by =treating. As stated in Co rnonwealth v.

Spotz, 896 A.2d 1191 (2006)

"In reviewing a challenged jury instruction, we must review the charge as a whol and

not simply isolated portions, to ascertain whether it fairly conveys the required le al

principles at issue." Gilbert Jones, 683 A.2d at 1196. "[Ilt is an unquestionable m im of

law in this Commonwealth that a trial court has broad discretion in phrasing its

instructions, and may choose its own wording so long as the law is clearly, adequ tely,

and, accurately presented to the jury for its consideration." Commonwealth v. Port r, 556

Pa. 301, 728 Aid 890, 899 (1999).

Spotz insists that his trial counsel was ineffective for failing to object to the trial urt's

omission of the word "case" from its jury instruction on aggravating and mitigati

circumstances. However, as the PCRA court concluded, we find this "hyper-techn cal

semantical claim" to be "patently frivolous." (Opinion of the PCRA Court at 57).

In Porter, supra, this Court rejected a similar hyper-technical claim. There, the ap slant

argued that it was reversible error for the trial court to instruct the jury that a reaso able

doubt was one that "would cause a reasonably careful and sensible person to restr

before acting." Porter, 728 A.2d at 899 (emphasis added). Instead, the appellant isted

that the jury should have been given the Pennsylvania Standard Jury Instructions:

Criminal Section, § 7.01(3) (1979), which states that a reasonable doubt is one tha

"would cause a reasonably careful and sensible person to hesitatebefore acting." d.

(emphasis added). In dismissing this semantical claim, we noted that, "although w have

historically considered the language contained in these standard instructions to be aid

in, our review, we have not placed our imprimatur upon them." Id. Moreover, we a so

emphasized that the trial court has broad discretion in phrasing its instructions as 1 ing as

the instruction clearly, adequately, and accurately reflects the law. Id. Because the

distinction between "hesitate before acting" and "restrain before acting" was de m imis,

we concluded that such a slight deviation by the trial court was not an abuse of dis retion.

Similar to Porter, we believe that the trial court's omission of the word "case" was de

minimis. As the PCRA court concluded, "Whe instructions as given, clearly, adeq ately

and accurately explained to the jury how to use the aggravating *96 and mitigatin

circumstances in accordance with the law." (Opinion of the PCRA Court at 57).

As such, we do not believe that such a trivial omission in phrasing would constitut an

abuse of the trial court's discretion. Likewise, as there was no reasonable basis for 'al

counsel to object to the instruction as given, counsel will not be deemed ineffectiv for

failing to raise a meritless objection. Commonwealth v. Spotz, 896 A2d 1191, 1 -47

(2006)

Considering the instructions given to the jury as a whole, the instruction as given, with the omission of

the word "complete," still adequately conveyed to the jury the law regarding the elements at the

Commonwealth was required to prove' beyond a reasonable doubt to' establish that Petitio r did not act

40

in justifiable self-defense. Therefore, Petitioner has failed to establish prejudice and this laim was

appropriately denied.

Petitioner next claims that trial counsel was ineffective for failing to object and m ve for a

mistrial following improper argument by the prosecution. As stated in Commonwealth v. ii, 10 A.3d

282 (2010):

The standards governing challenges to statements by the prosecutor are well-settl. : A

prosecutor has reasonable latitude during his closing argument to advocate his cas

respond to arguments of opposing counsel, and fairly present the Commonwealth'

version of the evidence to the jury. A challenged statement by a prosecutor must b

evaluated in the context in which it was made. Not every intemperate or improper etnark

mandates the granting of anew trial. Reversible error occurs only when the unavo dable

effect of the challenged comments would prejudice the jurors and form in their m" ds a

fixed bias and hostility toward the defendant such that the jurors could not weigh e

evidence and render a true verdict Commonwealth v. Cooper, 596 Pa. 119, 941 A. d

655, 668 (2007) (citations omitted). Prosecutor remarks are not objectionable if th

remarks "were based on the evidence or proper inferences therefrom...." Common ealth

v. [Aaron] Jones, 571 Pa. 112, 811 A.2d 994, 1006 (2002). On the other hand, of 4 urse,

the prosecutor should not "misstate the evidence or mislead the jury as to the: infer nce it

may draw." Commonwealth v. Shain, 493 Pa. 360, 426 A.2d 589, 591-92 (1981)

Commonwealth v. Ali, 10 A.3d 282, 307-08 (2010)

Petitioner first submits that the prosecutor improperly asked the jury:

"Do you think that at the very least Sergeant Singer who testified would know the

difference between one gun firing and two guns firing? He said there were four to we

shots and nothing about hearing those shots indicated to him that it came from MO than

one gun because it didn't. (T., p. 439)

On direct examination Sergeant Singer, who was the: first police officer to wive at the see e,:teStified as

.follows:

Q. Now..,when you were in route to the location, did you:hear anything that

.

your. attention?

A. Yes. As I was pulling onto the scene, I heard approximately four to five gu shots

sounding out. (T., p. 50)

41

Officer Singer was not asked any other questions on direct examination concemin the gunshots

that he heard. He also testified that he did not 'find any weapons at the scene. (T., p. 53) owever, on.

cross-examination Officer Singer testified that when he heard the shots he was approxim. ely 100 feet

away and he ::was sure they were gunshots. He was also asked:

Q. Can' you tell :us; if you remember, if there Was any kind of gap in time be een,

like, .gunshot 1 and I know you said 4 or 5, so was there anytime lapse - tween

shot 1 and, shot or shot 5 or were.they.someWha rapid?

A. I can't recall if there was any time lapse between the shots.

Q- Okay. Okay. Now, when you arrive at the scene, you've already heard fo or

five shots. Are you quite sure that it was four or five shots? Is that one of he

things that you're sure about?

A. *Yes, that's what Lean recall,.four.or fiveshots. (T.,:pp. 5859).

The prosectitor's..argitment.concerning this issue, including the. statement objected by

Petitioner, waS.s.as

"There'.are at least a minimum of three shots that Mr. Scott fired that we know d

that's based on the. injuricS. And I. submit to youlhatthe.fourto five shots that eve one.

said they heard were all fired by Mr. Scott. TO suggest there was some other seque ce of

gunfire is ridictilous. It's not what. happened. Do you think that at the very least S rgeant

Singer who testifiedwoUld.know the.differencebetween.one gun firing and two g s

.firing?. Be' said there were four to 'five shots and nothing about hearing those shots

indicated to him that it came from more than one gun because it *didn't. The only p rson.

who had, a gun:there was Mr. Scott. (T;, p 439).

Petitioner argues that. nothing in the record.. suggests that Sergeant Singer Was .asked if h&c suld make

such a distinction between two guns Cr that he in any Waytestified to, the non-existence...of second gun

firing and, that the statement by the prosecutor was complete fabrication. However,

the statement by the prosecutor' does accurately'state that Sergeant Singer testified that he eard four or,

five shots and did not recall.any.tiMe hipSe..betiwen the..shots. Whether 'the:prosecutor w referring to

this lack :of a lapse in the titne.bptween shots is. unclear. HOwever, given that the statemen was, in'the

context of argument and the jury was instructed that. the, argument of counsel was' not evil nee and they

42

were the sole finders of the facts based on the evidence that wa.s presented, there is no bas s for finding

that'counsel was ineffective in failing to object to the statement. (T., pp. 472-473)

Petitioner next argues that the prosecutor's arguments concerning, the size and ch cteristics of,

gun used in the shooting was improper. The prosecutor argued that the gun used was a la ge gun, a .44

magnum and that "it's not the typical gun that is around these days, which is usually a se -automatic.

They're obviously a lot smaller so they are used for concealment and so forth." (T., p. 43 )

The evidence is clear that the gun used in the shooting was not retrieved and thee idence

regarding the type of weapon used was circumstantial. Dr. Todd Luckasevic, Associate edical

Examiner, and Forensic Pathologist from the Allegheny County Medical Examiner's Offic , testified that

the injuries sustained by the decedent were consistent with "a large caliber such as a .44 agnum." and

that " a .44 Magnum is a large handgun caliber, it's one of the largest." (T., p. 44)' In ad ition, the

Firearm and Toolmark Examiner of the Allegheny County Medical Examiner's Office, Dee orate Tator,

testified concerning the barrel lengths of a,.44 Magnum revolver and testified that it could vary in

length, based on the make and model, from two inches to up to about ten and a half inches (T., p. 246)

She also exhibited and demonstrated to the jury a Ruger .44 Magnum revolver that had 'a el length of

seven and a half inches. (T., p. 246)

Finally, the Commonwealth presented the testimony of Detective' Gregory Matthe s of the

Allegheny County Police Department who testified that he executed a search warrant on P titioner's

residence which resulted in locating three rounds of .38 ammunition and one round of 35 ammunition.

(T., p. 204) In addition, during a search, of Petitioner's vehicle that, was: at the scene of the s ooting, he

'found 'a .44 Magnum cartridges recovered 'from ,the passenger's side of the Petitioner's vehi e and a .44

Magnum cartridge recovered from the center consol. (T., pp. 206-208) The prosecutor's gument is

supported by the circumstantial evidence, and the inferences therefrom, that the gun, used i the shooting

43

was .44 Magnum owned or possessed by Petitioner. In addition the argument that it was large gun

could also be a justifiable inference from the evidence. However, the prosecutor's &gime t that the gun

is not "typical" or that it is from the "old days" is not specifically supported by the evidenc In fact,

Ms. Tator's 'testimony ,that the .44 magnum can be found in various barrel lengths dependi g on the

make and model would imply that it is not from the "old days." As noted above, not ever improper

remark by a prosecutor warrants a new trial. In the context of all of the, evidence in this ca e, and given

that Petitioner admitted that he fired a gun during the incident, Petitioner has failed to esta lish that he

was prejudiced by the prosecutors argument concerning the gun used in the shooting.

Petitioner next contends that the prosecutor improperly represented the Petitioner's estimony

about his medical issues and the physical manifestations of his aphasia at trial by claiming at they

were fake. As discussed, above regarding Petitioner's symptoms of aphasia, the prosecutor n his closing

argument argued that Petitioner's conduct on the, stand was to garner sympathy, which she Id not be

considered by the jury in rendering its verdict. He also argued that the conduct of Petitions r varied

depending on whether he was being questioned by his own counsel or the prosecutor. The ury had the:

opportunity to observe Petitioner and could make its own assessment as to whether or not', ó argument

by the prosecutor was valid. The prosecutor did not misstate any evidence and, therefore, y, claim that

counsel was ineffective' in failing to object to these remarks is meritless.

Petitioner next asserts that trial counsel was ineffective in failing to object to the pr secutor's

statements during his closing argument that Petitioner "lied" during his: testimony. Regard g the

Petitioner's testimony that he did not have the gun used in the shooting and that he got it fr m one of his

attackers and that he dropped it in the parking lot, 'the prosecutor stated: "And to further SU gest that,

that's an absolute lie by Mr. Scott." (T., p. 440) ; "He lied to you about what happened with the gun

when he dropped it in the parking lot." (T., p 441):; "No. 1, he lied about the gun." (T., p. 59)

44

Regarding the statements made at the hospital where Petitioner went for treatment: "It's erstandable,

perhaps to argue that after he shoots Derrick and you see him get of the car and he realiz what he's

done - which, by the way, is another lie he told you, that he didn't know he shot anybody, that he told

the officer at the VA he didn't shoot anybody. (T., p. 442). Regarding calling the police Cr the

shooting, the prosecutor stated: "He lied about calling the police. He calls the police way efore he kills

anybody." (T., p. 462)

In Commonwealth v. Cox, 863 Aid 536 (2004) the Supreme Court considered the ssue of a

prosecutor repeatedly referring in his argument to the defendant as a "liar" and stated:

Appellant's third claim is that all prior counsel were ineffective for failing to objec to

alleged prosecutorial misconduct Appellant argues that, during closing argument, e i

prosecutor made impermissible statements relating to the testimony of Appellant d

Molyneux. First, Appellant contends that the prosecutor improperly referred to, Ap ellant

as "a liar" on numerous occasions. Relying on the decision of this Court in.

Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811 (1994), Appellant maintains tha

a-refutable evidence did not exist for the prosecutor to broadly characterize Appel': t as

"a liar." Second, Appellant contends that the prosecutor improperly argued that

Molyneux was not thoroughly versed in his profession, and instead engaged in "ho us

pocus" and "mumbo jumbo," which was clearly contrary to the record. Consequent y,

Appellant avers that trial counsel was ineffective for failing to object to the statetn ts of

the prosecutor and, accordingly, appellate counsel was ineffective for failing to rais the

alleged misconduct on direct appeal.

In Ragan, we explained that a prosecutor canriot intrude upon the exclusive functi n of

the jury to evaluate the credibility of witnesses by broadly characterizing the testimny of

a witness as a "big lie." Ragan, 645 A.2c1 at 829 (citing Commonwealth v. Kuebler, 484

Pa. 358, 399 A.2d 116, 118 (1979)). We also noted in Ragan, however, that "a

prosecutor's assertion that a witness had lied dOes not warrant a new trial when the

statement vvas a fair inference from irrefutable evidence rather than a broad

characterization." Id (citing Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365, 3 9

(1984)).

10111213 It is well settled that statements made by the prosecutor to the jury durin

closing argument will not form the basis for granting a new trial unless the unavoid ble

effect of such comments is to prejudice the jury, forming in their minds fixed bias d

hostility towards the accused that would prevent them from properly weighing the

evidence and rendering a true verdict. Commonwealth v. Gorby, 527 Pa. 98, 588 A. d

902, 909 (1991). Similar to the defense, the prosecution is accorded reasonable latit de

and may employ oratorical flair in arguing its version of the case to the jury.

Commonwealth v Williams, 541 Pa. 85, 660 A..2c11316, 1322 (1995), cert. denied, )16

U.S. 1051, 116 S.Ct. 717,133:L.Ed.2d 671 (1996). Prosecutorial misconduct will nit be

45

found where the comments were based on the evidence or derived from proper

inferences. Commonwealth v. Chester, 526 Pa, 578, 587 A.2d 1367, 1377 (1991), ert.

denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991). Finally, any alleged y

improper prosecutorial comments must be examined within the context of the con uct. of.

defense counsel. Commonwealth v. Clayton, 516 Pa. 263,532 A.2d 385, 396 (198 ), cert.

denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988).

As support for his argument, Appellant notes the remark of the prosecutor during

closing argument in which he stated: "Well, I suggest to you that he didn't tell you hat

he knew, and he told you three different stories about what he knew and he lied in ach

one of them." (N.T., May 15, 1987, page 1957). Further, Appellant points to anoth

comment made by the prosecutor during his closing argument in which he asserted

"Let's look at his other statement, the next one he gives, the next scenario of lies h tells."

(N.T., May 15, 1987, page 1971).

In rejecting the argument of Appellant, the PCRA court explained that the stateme w of

the prosecutor "were fair comments on the evidence and did not unreasonably infl e or

incite the passions of the jury." PCRA Court Memorandum Opinion, June 18, 200 ,at

We agree. Commonwealth v. Cox, 581 Pa. 107, 126-28, 863 A.2d 536, 547-48 (2 04)

The statements by the prosecutor that Petitioner lied were in reference to. and refuting spec fie testimony

by Petitioner and argument by defense counsel that Petitioner grabbed the gun from one his attackers

and subsequently dropped it on the ground at the scene. (T., pp. 419-421). These.argprifen addressed

the evidence that no gun Was found at the scene despite the fact the police arrived and beg . securing

the scene as Petitioner Was leaving the scene and cartridges consistent with.ahandgun,wer found in

.Petitioner's vehicle. The comments also address the evidence that indicated that Petitioner stated that he

had not fired a.gun that day when he at trial he acknowledged, and the. video confirmed, th. t: he; in. fact,

fired the gun. The comments also are directed to Petitioner's testimonylhat.he intended to all the

police after the shooting but he didn't have a phone when the VA officer testified that he f I I &that

Petitioner had an operational cell phone in his possession and it was the VA officer who Ca led the

police. Therefore, counsel was not ineffective for failing to object to the above statements ad

argument.

Petitioner also claims that the prosecutor improperly referred to the shooting as "m rder" when

he stated: "And you have to ask yourself, why didn't he call the police? We didn't he repo that he just

46

murdered some kid, shot him in the back of the: head? (T., p.. 462) Although the word "m rder" was

used, the use of this word in this context does not warrant a finding that counsel was ineff ctive in

failing to object. In Commonwealth v. Brown, 711 A.2d 444, 455 (1998) the Court discus ed the use of

the phrase "child murder" when referencing the defendant and stated:

"When viewed in context, this reference to Brown's attempts to avoid being arrest, as a.

child murderer is not so inflammatory that it rendered the jury incapable of rend ing a

fair verdict. In an abundance of caution, the prosecutor mitigated any perceived pr judice

to Brown when he withdrew this statement m front of the jury. Moreover, the trial ourt

gave the jury two instructions-one before opening statements and another before losing

arguments-that the arguments of counsel are not evidence.. id. at 52; and MT., F ruary

16, 1995, p. 24. We must presume that the jury followed these instructions.

Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992). Accordingly, no retie is due

for this claim. Commonwealth v. Brown, 711 A.2d 444, 455 (1998) (Emphasis ad ed)

In this case, despite the fact that the prosecutor used the word "murder" in referencing the act of

shooting the victim, it is also clear that he informed the jury that he did not believe that Pe itioner shot

victim intentionally. During his closing argument the prosecutor stated:

"Mr. Scott obviously is the one who caused the death of Derfick House, and it could be ar ed that he

did so recklessly, as I am to you." (T., p. 456) Considering the context of the statement

This text is long and has been trimmed here. Open the source document for the complete record.