J-S68029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FREDDIE CLEVELAND,
Appellant No. 210 EDA 2014
Appeal from the PCRA Order entered December 19, 2013,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR0000001-2009.
BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J. FILED NOVEMBER 10, 2014
Freddie Cleveland (“Appellant”) appeals from the order denying his
petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
sections 9541-46. We affirm.
We previously summarized the pertinent facts as follows:
[Appellant] dated [the victim] while [she] was in high
school, and after her graduation they lived together at the
Drexel Brook Apartments for 2-3 months. On December
29, 2008, [the victim] broke off their relationship and
moved back to her parents’ house on Drexel Hill.
One day [later], on December 30, 2008, [Appellant]
returned his keys to the lease administrator at the Drexel
Hill Apartments. When the administrator opined that
[Appellant] and [the victim] were too young to live
together, [Appellant] “became a little bit animated. . . .
[H]e said, you never know, and he might get back with
her.”
Later that afternoon, [the victim] arrived at her parents’
house while conversing with Daniel Bronner on her
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cellphone. She informed Bronner that [Appellant] was
outside the house. Bronner heard [Appellant] beg [the
victim] for a hug and ask “why they couldn’t be together, if
he was good enough for her.” Concerned for her safety,
[the victim] entered her parents’ house and instructed her
younger sister, [A.J.], to close the blinds and not to go
outside. [The victim] said that she saw [Appellant]
outside.
[The victim] and [A.J.] were the only persons in the
house. Moments after [the victim] arrived, [A.J.] heard
glass break on the front door. [The victim] tried to keep
the door closed, shouting: “Go away, Fred.” Over the
phone, Bronner heard glass breaking and [the victim]
screaming, “Fred, no, don’t do this.” A genetic analyst for
the Commonwealth identified a blood stain at the front
door as matching [Appellant’s] DNA profile.
[The victim] told [A.J.] to hide and call their father[.]
[A.J.] ran to her bedroom closet, called [their father] on
her cellphone and reported that “something was wrong,
and . . . [Appellant] was in the house, and . . . going to
hurt [the victim].” [A.J.] heard footsteps running up the
back steps and the kind of screaming she associated with
scary movies. The screaming eventually stopped, and she
heard footsteps going downstairs.
[The girls’ father] arrived home nine minutes after
[A.J.’s] phone call and saw the center glass broken on the
front door. [A.J.] approached him and said that she saw
somebody’s foot in the kitchen. [The girls’ father] ran into
kitchen and saw [Appellant] there gasping for air with a
dark spot on his shirt and a cut on his throat. Officer
[Kevin] Cosentino of the Upper Darby Police, who had
arrived at the residence shortly after [the girls’ father],
saw [Appellant] lying in the kitchen and identified the spot
on [Appellant’s] clothes as blood. A genetic analyst for the
Commonwealth found that the blood stain on Appellant’s
shirt matched [the victim’s] DNA profile.
[The girls’ father] ran upstairs in search of [the victim]
and found her lying in a pool of blood in the bathroom.
She had been stabbed with a butcher’s knife from the
kitchen. The Commonwealth’s medical examiner
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determined that she died from 26-28 stab wounds and 5-
10 slash wounds on her head, chest, hands and back. . . .
[Appellant] was non-responsive and had a life-
threatening injury to his chest. He underwent successful
emergency surgery at the University of Pennsylvania
Hospital.
Commonwealth v. Cleveland, 30 A.3d 545 (Pa. 2011), unpublished
memorandum at 1-3 (citations omitted).
The Commonwealth charged Appellant with first-degree murder. On
March 26, 2010, following a four-day trial, a jury convicted Appellant as
charged. On May 3, 2010, the trial court sentenced Appellant to life in
prison without parole. Appellant filed a timely appeal to this Court. On May
13, 2011, we affirmed Appellant’s judgment of sentence. Cleveland,
supra. Subsequently, we denied Appellant’s petition for reargument. On
July 31, 2012, our Supreme Court denied Appellant’s petition for allowance
of appeal. Commonwealth v. Cleveland, 49 A.3d 442 (Pa. 2012).
On January 22, 2013, Appellant filed a timely, counseled PCRA
petition, in which he contended that, given the overwhelming evidence that
he killed the victim, trial counsel was ineffective for failing to pursue a
defense relating to Appellant’s mental health issues, establishing that the
crime rose to no more than voluntary manslaughter. To this end, Appellant
quoted from the findings of a forensic psychologist, who opined that because
Appellant suffered from a borderline personality disorder, a defense based
on mental issues would have been meritorious. On March 12, 2013, the
Commonwealth filed its response. On June 25, 2013, the PCRA court
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convened an evidentiary hearing, at which Appellant, the forensic
psychologist identified in Appellant’s PCRA petition, trial counsel, and
Appellant’s father testified. After hearing this testimony, and considering
arguments and briefs presented by counsel for the parties, the PCRA court,
by order entered December 19, 2013, denied Appellant’s PCRA petition. This
timely appeal followed. Both Appellant and the PCRA court have complied
with Pa.R.A.P. 1925.
Appellant raises the following issue:
Was [Appellant] denied effective assistance of counsel for
the failure to present a viable defense at trial, to wit, that
the homicide in this case rose no higher than voluntary
manslaughter?
Appellant’s Brief at 3.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). 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.
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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.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Johnson, 966 A.2d at 532. 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 probability that, but for counsel’s unprofessional errors, the
result of the 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 will not be deemed ineffective if any reasonable basis exists
for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.
1994). Even if counsel had no reasonable basis for the course of conduct
pursued, an appellant is not entitled to relief if he fails to demonstrate the
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requisite prejudice which is necessary under Pennsylvania's ineffectiveness
standard. Douglas, 645 A.2d at 232. Counsel 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).
Moreover, trial counsel's strategic decisions cannot be the subject of a
finding of ineffectiveness if the decision to follow a particular course of action
was reasonable and was not the result of sloth or ignorance of available
alternatives. Commonwealth v. Collins, 545 A.2d 882, 886 (Pa. 1988)
(cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204 (Pa.
1997)). Counsel's approach must be "so unreasonable that no competent
lawyer would have chosen it." Commonwealth v. Ervin, 766 A.2d 859,
862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d
233, 234 (Pa. 1981). Our Supreme Court has defined “reasonableness” as
follows:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that
the particular course chosen by counsel had some
reasonable basis designed to effectuate his client’s
interests. The test is not whether other alternatives were
more reasonable, employing a hindsight evaluation of the
record. Although weigh the alternatives we must, the
balance tips in favor of a finding of effective assistance as
soon as it is determined that trial counsel’s decision had any
reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com.
ex rel. Washington v. Maroney, 235 A.2d 349, 352-53 (Pa. 1967)). See
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also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining
that a defendant asserting ineffectiveness based upon trial strategy must
demonstrate that the “alternatives not chosen offered a potential for success
substantially greater than the tactics utilized”). A defendant is not entitled
to appellate relief simply because a chosen strategy is unsuccessful.
Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995).
In support of his claim of ineffectiveness, Appellant asserts “the
defense utilized at trial—that Appellant was not the perpetrator—was
completely unreasonable in view of [the] overwhelming evidence that he
was, and [trial] counsel failed to consider presenting a defense based on
expert evidence that this killing rose no higher than voluntary
manslaughter[.]” Appellant’s Brief at 13. According to Appellant, “the
victim had engaged in a series of provocative behaviors toward [him] that
resulted in a total loss of control. Id. Appellant then references the forensic
psychologist’s findings that he is “a person with a history of emotional
fragility, intolerance of abandonment and impulsive conduct.” Id. Appellant
contends further, “[d]ue to this passion, [his] mind was not then capable of
cool reflection.” Id. Appellant therefore claims he is entitled to a new trial
where he could present this defense.
In rejecting Appellant’s claim, the PCRA court explained:
The Court concludes that trial counsel’s strategy was
reasonable. During the evidentiary hearing in this case,
[PCRA] counsel presented the expert testimony of Dr.
Elliott Atkins, a psychologist, and cross-examined trial
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counsel. [Appellant] testified as well. Trial counsel’s
testimony was credible; [Appellant] was evasive and
equivocal. The Commonwealth’s post-hearing brief
summarizes the critical facts, all of which the Court finds
credible and supported by the record:
[Trial counsel] discussed with [Appellant] the
Commonwealth’s case against him. [Although trial
counsel explained] to [Appellant] the significant and
powerful evidence that clearly established that [he]
stabbed the victim to death, [Appellant] never
admitted to killing [the victim]. Instead, [Appellant]
maintained that he did not recall what happened. . .
Although [trial counsel] considered the possibility of
a voluntary manslaughter defense, that pursuit was
made impossible because [Appellant] insisted that he
did not recall what happened. Also problematic with
a possible voluntary manslaughter defense was the
passage of time [between the date] that [the victim]
broke up with [Appellant] and the actual killing.
Commonwealth’s Post-Hearing Memorandum, p. 11 []
(citations to record omitted). Based on this evidence, the
Court concludes that [Appellant] failed to prove that [trial
counsel] provided ineffective assistance. To the contrary,
the Court concludes that [trial counsel] was quite
competent, but that the evidence of [Appellant’s] guilt was
overwhelming.
PCRA Court Opinion, 7/2/14, at 4. Our review of the record and pertinent
case law supports the PCRA court’s conclusions.
Significantly, the PCRA court credited the testimony of counsel over
the testimony and other allegations made by Appellant at the evidentiary
hearing. We cannot disturb this determination. See Commonwealth v.
Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility
determinations are solely within the province of the PCRA court).
Our Supreme Court has summarized:
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A person is guilty of “heat of passion” voluntary
manslaughter if at the time of the killing he or she reacted
under a sudden and intense passion resulting from serious
provocation by the victim. “Heat of passion” includes
emotions such as anger, rage, sudden resentment or terror
which renders the mind incapable of reason. An objective
standard is applied to determine whether the provocation
was sufficient to support the defense of “heat of passion”
voluntary manslaughter. The ultimate test for adequate
provocation is whether a reasonable man, confronted with
this series of events, became impassioned to the extent
that his mind was incapable of cool reflection.
Commonwealth v. Miller, 987 A.2d 638, 649-650 (Pa. 2009) (citations
omitted).
Our Supreme Court addressed a similar claim in Commonwealth v.
Mason, 741 A.2d 708 (Pa. 1999), abrogated by another capital appeal in
Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003). In Mason, the
defendant, after being excluded from a social outing by the victim the night
before, forced his way into the victim’s home and stabbed her eighteen
times. A jury convicted defendant of first-degree murder and the trial court
sentenced him to death. Among the issues the defendant raised on direct
appeal was the claim that “the jury erred in failing to find that he was acting
under the ‘heat of passion’ when he fatally stabbed” the victim. Mason, 741
A.2d at 713. In rejecting Appellant’s challenge, our Supreme Court
explained:
Here, [the defendant] does not claim that his quarrel in
the bar with [the victim], which occurred more than seven
and one-half hours before the stabbing, caused him to kill
[her] in the heat of passion. Rather, Appellant claims that
he was so intoxicated at the time of the stabbing that he
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can’t remember whether words were exchanged
which would give rise to a heat of passion defense.
However, there was no evidence to support a finding that
[the victim] did anything immediately before the stabbing
to provoke [the defendant] so as to cause him to act in the
heat of passion. In fact, [the victim’s] son testified that
his mother was just lying on the bed when Appellant came
into the room and began stabbing her. Thus, the record in
the instant case simply does not support Appellant’s
speculative claim that he was acting under the heat of
passion when he stabbed [the victim] to death.
Id. at 714 (citations omitted) (emphasis added).
Here, Appellant consistently informed trial counsel that he could not
recall stabbing the victim. Thus, as in Mason, there is no indication that
“words were exchanged which would give rise to a heat of passion defense.”
Also, as in Mason, there is no testimony (from either the victim’s sister or
the man who was on the phone with the victim at the time of the murder) as
to provoking statements made by the victim. Instead, Appellant references
his self-serving testimony that the victim was “saying different nasty things”
to him, and this fact caused him to stab her. N.T., 6/25/13, at 79. Finally,
at the evidentiary hearing, trial counsel testified that “my hands were kind of
tied as it goes to [a voluntary manslaughter] defense because [Appellant]
indicated that he did not recall the events.” Id. at 45.
Because Appellant maintained that he did not recall the stabbing, the
PCRA court’s conclusion that trial counsel’s decision to forgo a “heat of
passion” defense was reasonable is supported by the record. See also
Miller, 987 A.2d at 649-50 (rejecting the PCRA petitioner’s claim that trial
counsel was ineffective for failing to call an expert to testify as to his
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“personality makeup” and pursue a “heat of passion” defense; “[o]nce [the
defendant] refused to testify about the events surrounding the killing, he
made it virtually impossible to convince the [fact finder] that the killing was
committed in the ‘heat of passion’”). We thus affirm the PCRA court’s order
denying Appellant post-conviction relief.
Order affirmed.
Judge Jenkins did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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