Com. v. Rogers, R.

J. S17035/19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

RONALD ROGERS, No. 728 EDA 2018

Appellant

Appeal from the PCRA Order, February 23, 2018,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0011563-2009

BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 15, 2019

Ronald Rogers appeals from the February 23, 2018 order entered in the

Court of Common Pleas of Philadelphia County that denied his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

("PCRA"). We affirm.

A previous panel of this court set forth the following:

On August 23, 2006, Appellant and Demetrius Hayes

were involved in a shootout in which an unrelated

bystander, William Green, was struck by an errant

bullet and killed. On February 8-11, 2011, Appellant

was tried by a jury. Tyrone Singleton, an eyewitness,

testified for the Commonwealth. During the direct

appeal of this case, we summarized his testimony as

follows:

Tyrone Singleton testified that he met

with his friend, Demetrius Hayes, at the

corner of 10th and Master Streets on

August 23, 2006. He got into the

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passenger seat of Mr. Hayes' black

Mercedez-Benz. Mr. Hayes was seated in

the driver's seat. Mr. Hayes drove down

10th Street towards Thompson Street.

Mr. Hayes pulled his vehicle over toward

the curb to where Appellant was standing.

While the vehicle

was stopped,

Mr. Singleton saw two (2) friends of

Appellant's, Andre Holliday and Ronald

Fenwick, walking on Thompson Street

toward Mr. Hayes' vehicle. He saw

another male he knew to be a friend of

Appellant's across the street standing on

the corner.

Mr. Singleton heard Appellant say to

Mr. Hayes that "he needs $6,000.00 or it's

on." Appellant then pulled a weapon from

his waist and began firing. Mr. Singleton

leaned over and heard bullets hitting the

car. Mr. Hayes then pulled a gun that he

had next to him on his seat and returned

fire two (2) or three (3) times and then

took off at a high rate of speed.

Mr. Singleton continued to hear gun shots

coming from outside the car as they

pulled away.

Mr. Singleton had first testified at trial

that Mr. Hayes fired first but then testified

the next day that he said that because he

was afraid of two (2) men who had been

in the courtroom the day before and who

were no longer present.

Mr. Singleton's statement to the

detectives, testimony at the preliminary

hearing and testimony at the trial of

Demetrius Hayes were all consistent with

his final trial testimony that [Appellant]

pulled his weapon first and fired the first

shot.

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Mr. Singleton further testified that he and

Mr. Hayes inspected the vehicle when

they got to 10th and Popular Streets and

saw that one of the tires was flat; there

were three (3) bullet holes in the

passenger side door; and, two (2) bullet

holes in the passenger side air bag.

Mr. Singleton went to retrieve his own

vehicle and picked up Mr. Hayes. Later

that day, they heard that a person known

as "Ill Will" had been killed.

Mr. Singleton that prior to

testified

August 23, [2006], he had witnessed an

incident where [Appellant] shot at

Mr. Hayes' vehicle.

Commonwealth v. Rogers, No. 2834 EDA 2011,

2013 WL 11262994, *1 -*2 (Pa. Super. June 19, 2013)

(unpublished memorandum) (original brackets

omitted), appeal denied, 83 A.3d 415 (Pa. 2014).

As noted above, Singleton had previously testified for

the defense at the trial of Hayes and at Appellant's

preliminary hearing on September 9, 2009. He had

also given a statement to police detectives in relation

to this case. In each instance, Singleton testified,

consistently with the above, that Appellant fired the

first shots. As a result of Singleton's testimony at

Hayes' trial, Hayes was acquitted of all charges,

including murder.

However, when Singleton first began his testimony at

Appellant's trial, he stated that it was Hayes, and not

Singleton, who shot first. The trial court stopped the

testimony, excused the jury for the day, and said the

following on the record to Singleton:

Now that we are all here, let me express

this to you, Mr. Singleton, in no uncertain

terms: I don't know what your street mind

thinks, but I am going to explain it to you.

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You maybe made a mistake today. I am

not sure. You may have heard incorrectly.

You just took the stand in this case, this

week, and said that [Hayes] shot first, but

last week, you said, under oath, and on

this same record, with the same

stenographer, and the same Judge, that

[Appellant] shot first.

You have now just placed yourself -- the

District Attorney was getting ready to see

if that was a mistake. I stopped it there,

before you said one more thing.

Be very careful what you do, because

that's Perjury, and it is Perjury on the

record, and it is Perjury in front of the

same Judge.

If you are playing some little game here,

guess what is going to happen? You are

going to get charged with Perjury. Now,

this is a Homicide case, so I will make sure

that you receive a maximum consecutive

sentence.

Think about who you are helping out here,

because it isn't yourself.

Now, we are going to take a break for

today. Do some long hard thinking

tonight. You get on this stand, and you

tell the truth. You have been warned. So,

you can tell whatever story you want, but

I am telling you now: If you say that

again, it is Perjury, because it is on the

record. If it is the truth, and you perjured

yourself before, then live with it, but if it

is not the truth, and you think that you

are doing some favor, or you are afraid,

guess who is getting the sentence here?

You, and it will be the maximum,

consecutive.

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Take him back.

Appellant's attorney made no objection to the court's

remarks.

The next day, Singleton resumed his testimony,

recanted his testimony from the previous day, and

testified that Appellant fired first. Singleton explained

that the preceding day he "made a mistake" and "said

the wrong thing," because he was nervous.

At the conclusion of the trial, Appellant was found

guilty of third-degree murder, aggravated assault,

violating the Uniform Firearms Act, and possession of

an instrument of crime.[Footnote 1] He was

sentenced on May 5, 2011, to sixteen to thirty-two

years' incarceration.[Footnote 2] Appellant's

judgment of sentence was affirmed by this Court on

June 19, 2013, and the Pennsylvania Supreme Court

denied Appellant's request for further direct review on

January 16, 2014.

[Footnote 1] 18 Pa.C.S.[A.] §§ 2502(c),

2702, 6106, and 907, respectively.

[Footnote 2] Appellant received a

sentence of sixteen to thirty-two years'

incarceration for the murder charge, and

lesser concurrent sentences on his other

charges.

Appellant filed a timely PCRA petition, pro se, on

August 5, 2014, and thereafter filed a separate motion

to proceed pro se. Counsel was appointed to

represent Appellant on March 24, 2015; on July 9,

2015, counsel filed a no -merit letter[Footnote 3] and

petition to withdraw. The PCRA court conducted

Grazier[Footnote 4] hearings on October 19, 2015,

and December 21, 2015, after which the court allowed

counsel to withdraw and allowed Appellant to proceed

pro se and file an amended petition. [Footnote 5]

[Footnote 3] See Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988);

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Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988).

[Footnote 4] See Commonwealth v.

Grazier, 713 A.2d 81 (Pa. 1998).

[Footnote 5] Appellant was present at the

Grazier hearings via video-conferencing.

Appellant filed an amended petition on February 22,

2016.[Footnote 6] On June 23, 2016, the PCRA court

issued notice of its intention to dismiss Appellant's

claims without a hearing pursuant to

Pa.R.Crim.P. 907. The court announced its reasons

for dismissing the petition in open court that day; a

representative of the Commonwealth was present in

court, but Appellant was not. Appellant did not

respond to the Rule 907 notice, and on August 9,

2016, the PCRA court dismissed his petition.

Appellant thereafter filed this timely appeal.

[Footnote 6] The Commonwealth moved

to dismiss Appellant's PCRA petition on

May 24, 2016. In its motion, the

Commonwealth argued that the trial

court's comments to Singleton were

within that court's discretion and that the

firearms evidence at trial, which

established that eight fired cartridges

cases [sic] matching Appellant's gun were

found at the scene of the shooting, versus

only three from Hayes' gun, supported

Singleton's account that Appellant fired

first and continued to fire as Hayes

escaped. The Commonwealth also argued

that no evidentiary hearing was

warranted in this case because Appellant

did not provide a signed certification

regarding each witness he intended to call

at the hearing.

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Commonwealth v. Rogers, No. 2799 EDA 2016 at 1-6, unpublished

memorandum (Pa.Super. filed August 16, 2017) (record citations omitted;

brackets in original).

In the appeal of the August 9, 2016 order denying appellant PCRA relief,

appellant raised two issues. In his first issue, appellant claimed that the PCRA

court abused its discretion in dismissing appellant's PCRA petition because

counsel was ineffective for failing to object to the trial court's improper

pressuring of Tyrone Singleton, the Commonwealth's key witness. (Id. at 6.)

This court found that this claim had arguable merit. (Id. at 12.) Additionally,

because the PCRA court failed to hold an evidentiary hearing or address the

other two prongs of the ineffectiveness inquiry, this court determined that a

remand for an evidentiary hearing was necessary. This court further directed

that in the event that either party appealed, the PCRA court was to file a

written decision explaining its disposition. (Id.) As a result of its disposition

on appellant's first issue, this court declined to address appellant's second

issue on appeal, wherein appellant alleged ineffectiveness of trial counsel for

failure to bring forth certain evidence.' (Id.)

On February 23, 2018, the PCRA court held the evidentiary hearing,

after which it denied appellant PCRA relief. Appellant filed a timely notice of

appeal. The PCRA court directed appellant to file a concise statement of errors

' We note that in the appeal of the August 9, 2016 order at No. 2799 EDA

2016, this court denied the Commonwealth's motion for

reconsideration/reargurnent.

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complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely

complied. Thereafter, the PCRA court filed its Rule 1925(a) opinion.

Appellant raises the following issue for our review:

Whether the [PCRA] court erred in denying PCRA relief

when the record clearly showed trial counsel had no

reasonable basis for his strategy choices on an issue

of arguable merit and trial counsel's lack of reasonable

strategy choice sufficiently caused prejudice to

appellant to the effect that there is a reasonable

probability that the outcome would have been

different[?]

Appellant's brief at 4.

In PCRA appeals, our scope of review "is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court's hearing, viewed

in the light most favorable to the prevailing party." Commonwealth v. Sam,

952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most

PCRA appeals involve questions of fact and law, we employ a mixed standard

of review. Pitts, 981 A.2d at 878. We defer to the PCRA court's factual

findings and credibility determinations supported by the record.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In

contrast, we review the PCRA court's legal conclusions de novo. Id.

Appellant's sole claim asserts ineffective assistance of trial counsel.

In evaluating claims of ineffective assistance of

counsel, we presume that counsel is effective.

Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d

435, 441 (Pa. 1999). To overcome this presumption,

Appellant must establish three factors. First, that the

underlying claim has arguable merit. See

Commonwealth v. Travaglia, 541 Pa. 108, 661

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A.2d 352, 356 (Pa. 1995). Second, that counsel had

no reasonable basis for his action or inaction. Id. In

determining whether counsel's action was reasonable,

we do not question whether there were other more

logical courses of action which counsel could have

pursued; rather, we must examine whether counsel's

decisions had any reasonable basis. See Rollins, 738

A.2d at 441; Commonwealth v. (Charles) Pierce,

515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally,

"Appellant must establish that he has been prejudiced

by counsel's ineffectiveness; in order to meet this

burden, he must show that 'but for the act or omission

in question, the outcome of the proceedings would

have been different." See Rollins, 738 A.2d at 441

(quoting Travaglia, 661 A.2d at 357). A claim of

ineffectiveness may be denied by a showing that the

petitioner's evidence fails to meet any of these

prongs. Commonwealth v. (Michael) Pierce, 567

Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001);

Commonwealth v. Basemore, 560 Pa. 258, 744

A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v.

Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998)

("If it is clear that Appellant has not demonstrated

that counsel's act or omission adversely affected the

outcome of the proceedings, the claim may be

dismissed on that basis alone and the court need not

first determine whether the first and second prongs

have been met.").

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

At the outset, it is important to note that appellant's defense at trial was

self-defense, premised on the claim that Hayes fired first. Following the

evidentiary hearing on remand, the PCRA court summarized trial counsel's

evidentiary hearing testimony as follows:

At the evidentiary hearing after remand, trial counsel

explained that his basis for not objecting to the Court's

admonishment of Singleton, and not bringing out the

court's admonishment before the jury, was that he did

not want to adopt Singleton as a witness for the

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defense. Trial counsel fully expected Singleton to

testify that [appellant] was the initial shooter and

based his defense on that fact. Counsel's defense was

that Singleton should not be believed because he was

Hayes' friend and a passenger in the vehicle that was

shot at numerous times. A reasonable person would

fully expect Singleton to be adverse to [appellant] as

he was a party with interest and bias. Furthermore,

Singleton had convictions for crimes of dishonesty and

was currently incarcerated. In contrast, the defense

had an independent witness with no criminal

background[:] Myra Summers. Summers was driving

directly behind Hayes' vehicle and gave a statement

to detectives that the person in the vehicle shot first.

This was the witness the Defense wanted the jury to

believe. It would be much more implausible for the

jury to accept Singleton's newfound testimony that his

friend shot first, particularly in light of the three prior

statements given by Singleton that [appellant] shot

first. Quite simply, it would not benefit the defense

for Singleton to change his testimony so there would

be no reason for counsel to object to the court's

admonishment.

PCRA court opinion, 6/26/18 at 10.

Our review of the record reveals that the PCRA court accurately

summarized trial counsel's testimony as to why he did not object to the trial

court's admonishment of Singleton and place the admonishment in front of

the jury. Indeed, trial counsel repeatedly testified that he had no basis for

objecting to the admonishment because regardless of how Singleton testified,

his testimony would not have been determinative because he lacked

credibility. (Notes of testimony, 2/23/18 at 15, 25, 34-36, 39-41.) Trial

counsel further testified that the most credible defense witness was

Ms. Summers who happened to be travelling in a vehicle behind the Hayes

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vehicle, witnessed the shooting, and had no connection to any individual

involved in the shooting. (Id. at 15-16, 21, 33.) Based on trial counsel's

testimony, the PCRA court properly determined that counsel had a reasonable

basis for failing to object to the trial court's admonishment of Singleton and

for failing to place the admonishment in front of the jury. Therefore, appellant

failed to satisfy the reasonable basis prong of the ineffectiveness inquiry and

the PCRA court properly denied his petition

Nevertheless, with respect to prejudice, we note that in his brief to this

court, appellant claims that:

[s]ince Ms. Summers never gave trial counsel

testimony that was usable to support the self-defense

claim,[2] counsel's failure to proceed with

impeachment of Singleton for changing testimony

after the trial court admonition prevented [a]ppellant

from having the jury fully see Singleton entirely to

decide if his initial direct testimony was trustworthy.

Had the jury believed Singleton was trustworthy

about this, there was a reasonable probability a

different outcome would have occurred.

Appellant's brief at 10 (emphasis added). In order to establish prejudice,

however, a petitioner is required to "show that but for the act or omission in

question, the outcome of the proceedings would have been different."

Washington, 925 A.2d at 594 (citation and internal quotation marks

2 We note that appellant failed to include the trial transcript in the certified

record on appeal, so we may not consider it. See Pa.R.A.P. 1911 (requiring

appellant to order any necessary transcripts to complete the record for their

appeal); see also, Commonwealth v. Williams, 715 A.2d 1101, 1103 (Pa.

1998) (holding that appellate courts are limited to considering only the facts

contained in the certified record on appeal).

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omitted). Appellant's claim that if the jury believed Singleton, "there was a

reasonable probability a different outcome would have occurred" falls far short

of establishing that but for trial counsel's failure to object and place the

admonishment in front of the jury, the outcome would have been different.

We finally note that in concluding that appellant failed to demonstrate

prejudice, the PCRA court explained:

Had Counsel brought out before the jury that

Mr. Singleton's testimony could possibly have been

coerced by the Court, irregardless [sic],

Mr. Singleton's testimony was still inconsistent

testimony because there is a track record. He gave a

statement to police. He testified at the preliminary

hearing. He testified at a prior trial just a week earlier.

So what we would have is still an unreliable witness.

Secondly, all witnesses were consistent, and that

being Mr. Singleton, and Miss Summers and ballistics,

basically, that [appellant's] weapon, being held by

[appellant], continued to fire at a vehicle that was

fleeing, thereby, hitting an innocent bystander with a

bullet.

It was proven that it was [appellant's] gun because

[appellant] was arrested with that particular weapon

two months later that fired the fatal bullet and that

nine fired cartridge casings were found at the scene

and there was testimony that the vehicle was riddled

with bullets or had bullet holes in it and the vehicle

took off immediately upon shots being fired, indicating

that whoever was firing the weapon, [appellant]

continued to fire at a fleeing vehicle which no longer

posed a threat to [appellant], thereby, hitting an

innocent bystander.

So that would not make out self-defense nor would it

qualify under voluntary manslaughter or a mistaken

belief in self-defense. So it really would not have

changed the result of the proceedings.

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Notes of testimony, 2/23/18 at 63-64. Accordingly, denial of appellant's PCRA

petition would also have been proper because appellant failed to demonstrate

prejudice.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn,

Prothonotary

Date: 7/15/19

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