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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FERNANDO REAL,
Appellant No. 1495 EDA 2013
Appeal from the PCRA Order entered May 3, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0207721-2004
BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 27, 2014
pro se from the order denying his
sections 9541-46. We affirm.
We previously summarized the factual background as follows:
On September 11, 200[2], Appellant shot and killed
Frankford section of the City and County of Philadelphia,
Pennsylvania. According to eyewitness testimony of
R
when the victim placed an insufficient bet. A verbal
argument between Appellant and the victim ensued.
with two other men. Shortly after Appellant returned to
where the game was being played, the victim walked away
from the game. Mr. Milburn then heard gun shots [sic]
and saw Appellant with a 9 mm gun in his hand, standing
over the victim who had fallen to the curb. After the
*Former Justice specially assigned to the Superior Court.
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shooting, Appellant ran away. Mr. Milburn had seen
Appellant with the same 9 mm gun about a week earlier in
a local bar. According to Mr. Milburn, nearby police
officers immediately responded to the gunshots and,
without waiting for an ambulance, transported the victim
to the hospital. [The victim later died.]
Commonwealth v. Real, 972 A.2d 560 (Pa. Super. 2009), unpublished
memorandum at 1-2 (citations omitted).
A jury convicted Appellant of first-degree murder and possession of an
instrument of crime. Thereafter, the trial court sentenced Appellant to a
term of life in prison for his murder conviction, and a concurrent sentence of
two and one-half to five years in prison for possessing an instrument of
crime. Appellant filed a direct appeal to this Court. In an unpublished
sentence. Real, supra. On October 7, 2009, our Supreme Court denied
Commonwealth v. Real, 982
A.2d 65 (Pa. 2009). On April 5, 2010, the United States Supreme Court
certiorari.
Meanwhile, on February 26, 2010, Appellant filed a pro se PCRA
petition. Although the PCRA court appointed counsel, and PCRA counsel filed
an amended petition, on July 16, 2012, Appellant filed a motion to proceed
pro se, and an amended petition in which he raised several claims of
ineffective assistance of counsel. On September 13, 2012, the PCRA court
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conducted a Grazier1 hearing, and granted Appellant permission to proceed
pro se. The PCRA court then held several days of evidentiary hearings. By
PCRA petition. This timely appeal followed. The PCRA court did not require
Pa.R.A.P. 1925 compliance.
Appellant raises the following issues:
A. Whether the PCRA court erred when it held [Appellant]
prosecutor eliciting evidence of another crime previously
ruled inadmissible the shooting at Officer Spence
under the Pennsylvania and United States Constitutions?
B. Whether the PCRA court erred when in denying
[Appellant] relief when [his] right to effective assistance of
counsel was violated by the prosecutor displaying a
photograph of [Appellant] to a witness, post formal
charging without defense counsel being present?
-3.
In reviewing the propriety of an order granting or denying PCRA relief,
an appellate court is limited to ascertaining whether the record supports the
determination of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great
____________________________________________
1
See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Johnson, 966 A.2d at 532. To be entitled
to relief under the PCRA, the petitioner must plead and prove by a
preponderance of the evidence that the conviction or sentence arose from
one or more of the errors enumerated in section 9543(a)(2) of the PCRA.
One such error involves the ineffectiveness of counsel.
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish by a preponderance of the evidence
that counsel's ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
Id.
adequate, and counsel will only be deemed ineffective upon a sufficient
Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel's act or omission. Id. at 533. A finding of
"prejudice" requires the petitioner to show "that there is a reasonable
proceeding would have been different." Id. In assessing a claim of
ineffectiveness, when it is clear that appellant has failed to meet the
prejudice prong, the court may dispose of the claim on that basis alone,
without a determination of whether the first two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel
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cannot be deemed ineffective for failing to pursue a meritless claim.
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc),
appeal denied, 852 A.2d 311 (Pa. 2004).
Appellant first claims that trial counsel was ineffective for failing to
object and request a mistrial after Sergeant John Spence testified at trial
another occupant fired at the officer.
According to Appellant, the trial court previously ruled this evidence
cken[ed]
in the minds of the jury. Absent this error, the jury was free to believe
ad arguable merit, and
trial counsel did not provide a reasonable basis for his omission, the PCRA
court concluded that Appellant could not establish the requisite prejudice. In
ruling on the record, the PCRA court stated:
[T]his Court cannot find that there was a reasonable
probability that the outcome of the trial would have been
different had this evidence been excluded due to the
overwhelming evidence of guilt in this case and the general
cautionary instruction given to the jury regarding bad acts.
***
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This Court reviewed the jury instructions. In their
totality, the instructions informed the jury of the limited
purpose for which evidence of flight could be used, as well
as any other evidence of bad acts by [Appellant].
N.T., 5/3/13, at 12-13.
because Appellant could not establish prejudice, his ineffectiveness claim
fails. Travaglia, supra. Earlier in the hearing, the PCRA court summarized
the overwhelming evidence of Appel
read to the jury since he was found to be unavailable to
testify by the Trial Court.
described the circumstances surrounding the shooting. It
was an improperly placed bet at a dice game. He
described the gun used in the shooting as a 9 millimeter.
Ballistics confirmed this. The victim was shot from behind.
He testified that the victim was shot from behind. The
medical examiner confirmed this. [Mr. Milburn] said that
[Appellant] stood over the victim after he was down and
fired more shots at him. Ballistics confirmed this. There
Milburn] testified that numerous shots were fired. The
murder weapon was recovered empty and the victim was
shot 12 times.
Marquise Nixon gave a statement to police. He
recanted at trial, however, under the law, his prior
inconsistent, signed statement to police must be
considered by a reviewing Court in the same manner as
any other type of validly admitted substantive evidence
when determining if sufficient evidence exists to sustain a
criminal conviction.
game. He heard shots,
[Appellant] as the shooter and he stated that he saw
[Appellant] run toward Harrison Street. Police Officer
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photo out of an array[.]
***
Brian Perry also gave a statement to police. He was an
eyewitness. He recanted at trial, but since it was a signed
statement to police, which he adopted, that must be
considered as substantive evidence, as well.
He stated that he was at a craps game, that he heard
approximately seven shots coming from the area where he
last saw [Appellant] behind him, that [Appellant] was
wearing a white T-shirt and blue jeans, tall, real light,
looks Puerto Rican, approximately 5, 11.
Police Officer Vincent - - I am going to purposely leave
out her in-
most likely should not have been permitted. She sees a
light-skinned black male, 5,9 to 5,11, skinny, from 20 to
30 feet away in well-lit conditions. This male looks in her
direction, stands flush against the wall, then runs toward
Harrison Street.
Police Officer Vincent testified that she found the gun on
the path along which she chased this person. That gun
was later determined to be the murder weapon.
Other evidence presented in the case was that
attempted to reclaim it. Also [Appellant] could not be
found for over one year. [Appellant] was finally found in a
motel room in New Jersey with a loaded weapon which was
a 9 millimeter and he gave a false name.
and there is no claim regarding the statements as a part of
the PCRA. So the statements are substantive evidence
that was legally admitted during the trial. The statements
being I like shooting people and I already got two bodies.
N.T., 5/3/13, at 4-7.
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that the jury was adequately instructed as to the limited use of the evidence
in question. See N.T., 6/27/05, at 199-201. It is well settled that juries are
Commonwealth v.
Speight, 854 A.2d 450, 458 (Pa. 2004); see also Commonwealth v.
John, 596 A.2d
instructions may suffice to eradicate any prejudice that might result from
In his next issue, Appellant claims that the PCRA court erred in
on appeal his claim that his constitutional right to counsel was violated.
Prior to addressing this claim, the PCRA explained the circumstances
Now, by way of factual background, Police Officer
Vincent arrived on the scene of the homicide. She saw a
male run in her direction, then look in her direction and
place his body flat against the wall. The male then ran off
toward Harrison Street. Police Officer Vincent gave chase.
She lost the male but recovered a gun on the path along
which she chased the male which was later determined to
be the murder weapon.
Police Officer Vincent gave a statement to homicide
detectives wherein she described the male as a light-
skinned black male, 5,9 to 5,11, skinny. Police Officer
[Appellant] that evening.
Approximately six weeks after the homicide, a wanted
poster of [Appellant] was placed in the 15th Police District.
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Police Officer Vincent testified that she saw the poster and
recognized it to be the person she chased on the night of
the homicide. She failed to disclose this information to
homicide detectives or to the Assistant District Attorney
until pretrial preparation which was a few days before the
trial.
When Police Officer Vincent told the Assistant District
Attorney, which was close to three years after [Appellant]
had been arrested and the wanted poster had been taken
down, Police Officer Vincent, unbeknownst to the Defense
Attorney beforehand, identified [Appellant] in court. The
colloquied Police Officer Vincent regarding the basis for her
in-court identification.
Police Officer Vincent testified to seeing the wanted
poster near the time of the homicide but also testified that
she was shown the poster again by the Assistant District
Attorney during the trial prep.
N.T., 5/3/13, at 15-17.
the first two prongs of the tripartite test applied to an ineffectiveness claim,
the PCRA denied relief based upon its conclusion that Appellant could not
establish the requisite prejudice:
[Even if the trial court had] afforded relief to the
Defense in the form of a complete suppression of any
identification by Police Officer Vincent, that still would not
likely have changed the outcome of this case.
description. The direction in which he ran was consistent
with the direction in which other witnesses say he ran and
there were three other identification witnesses - - and this
is the most important fact - - there were three other
identification witnesses aside from Police Officer Vincent,
witnesses who knew [Appellant]. Also, Police Officer
Vincent was fully cross-examined and her credibility
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notice of her ability to make an identification in the case.
Id. at 21-22.
g that he was
prejudiced by any violation of his right to counsel. See, e.g.,
Commonwealth v. Spencer, 275 A.2d 299, 332 (Pa. 1971) (refusing to
improperly denied during pretrial identification, when the error was harmless
that prejudice is presumed is inapt. See
In sum, because the PCRA court correctly concluded that Appellant
order denying post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
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