Com. v. Metts, S.

J-A06040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

SALMAR METTS

Appellant No. 764 EDA 2014

Appeal from the PCRA Order March 3, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003292-2008

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MARCH 26, 2015

Appellant Salmar Metts appeals from the order entered in the

Delaware County Court of Common Pleas which dismissed his petition

seeking relief pursuant to the Post Conviction Relief Act (“PCRA”). 1 We

affirm.

The PCRA court sets forth the relevant facts of this appeal as follows:

This case arises from the shooting and death of
Christopher Howell [“Victim”] on May 21, 2008. At
approximately 5:30 pm that evening[,] [Victim] was on
Weymouth Street in Darby Borough, Delaware County,
with three other young men. The men were drinking
alcohol and smoking marijuana. [Appellant] and three of
his friends were also on Weymouth Street. An argument
between [Appellant] and [Victim] began because [Victim]

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1
42 Pa.C.S. §§ 9541-9546.
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allegedly did not want [Appellant], who was a resident of
Chester, on Weymouth Street where [Victim’s] friend lived.

A witness, Rashaad Carroll, testified at trial that he was
with [Victim]. Carroll testified that he intervened in the
argument and escorted [Victim] away. Carroll also
testified that no punches were thrown. Another witness
who was a friend of [Appellant], Jabree Branch,
corroborated this testimony at trial. The two groups
subsequently parted ways. Later that evening at
approximately 10:00 pm, both groups arrived back on
Weymouth Street.

Carroll testified that [Victim] was seated in Carroll’s vehicle
near his home. [Appellant] and his friends arrived and
stood by a fence near the car. [Victim] was looking at
[Appellant] and words were exchanged between the two.
[Victim] attempted to get out of the vehicle and Carroll
tried to hold him back. [Victim] was partially out of the
vehicle when [Appellant] pulled out a revolver and shot
[Victim] from a distance of approximately three feet.
[Victim] was hit and began running away from [Appellant].
[Appellant] then shot at [Victim] several more times. After
shooting [Victim], [Appellant] and his friends ran away.

Carroll testified that the following day he drove to the
Darby Borough Police Department to speak with a
detective regarding the shooting. Carroll identified
[Appellant] as the shooter from a photo array. Carroll also
provided police with a signed statement about the
shooting. Carroll also testified that [Victim] never carried
a gun and did not have a gun on him at the time that he
was shot and killed by [Appellant]. That evening the police
arrived at [Appellant’s] sister’s home and arrested
[Appellant].

The Delaware County Medical Examiner, Dr. Frederick
Hellman, also testified at trial. The Examiner testified that
[Victim] died as a result of multiple gunshot wounds. One
bullet wound was to the base of his neck having entered
from the front and the other four wounds were inflicted to
[Victim’s] back as he was running. Dr. Hellman concluded
that the gunshot wounds were inflicted from a distance of
more than a few feet away based upon the absence of

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gunpowder particles on [Victim]. Tests upon [Victim]
reflected that there was no indication that he had recently
handled or fired a firearm.

PCRA Court Opinion, filed October 9, 2014 at 1-2 (citations to the record and

unnecessary capitalization omitted).

The trial court sets forth some of the relevant procedural history of

this appeal as follows:

On May 23, 2008, [Appellant] was arrested and charged
with criminal homicide and related offenses in connection
with the events of May 21, 2008. From September 29,
2009 through October 2, 2009[,] a trial was held before
the Honorable Ann A. Osborne. [Appellant] was
represented by Mary Beth Welch, Esq. at trial.[2]

On January 20, 2010, [Appellant] was sentenced to a term
of 20 to 40 years[’] imprisonment for murder in the third
degree, and to consecutive terms of 42 to 84 months for
firearms without a license and 12 to 24 months for
possession of an instrument of crime.[3]

On February 17, 2010, counsel for [Appellant] filed a post-
sentence motion for arrest of judgment, for judgment of
acquittal, and for a new trial.[4]

On December 21, 2010, the court permitted Mary Elizabeth
Welch, Esq. to withdraw as counsel for [Appellant]. Jordan
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2
The court conducted a previous trial from June 2, 2009 through June 5,
2009, in which Appellant was represented by different counsel, Thomas
Dreyer, Esq. The jury was unable to reach a unanimous verdict, and the
court declared a mistrial.
3
18 Pa.C.S. §§ 2502, 6106, 907, respectively.
4
In his post-sentence motion, Appellant requested an additional ten days
after receipt of the notes of testimony to raise additional post-sentence
motions. The court granted this request on December 23, 2010.

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Zeitz was appointed by the court to represent [Appellant]
in all matters directly related to the previously filed post
sentence motions and for purposes of appeal.

On February 1, 2011, new counsel for [Appellant], Jordan
Zeitz, Esq., filed a petition for funds for an investigator to
possibly uncover “after-discovered evidence.” On April 6,
2011, the request was denied.

On April 25, 2011[, Appellant] filed supplemental post-
sentence motions and [a] request for an evidentiary
hearing and oral argument. In this motion, [Appellant]
complained of various instances of alleged trial court error,
alleged that trial counsel provided ineffective assistance,
requested a modification of sentence, and requested an
evidentiary hearing. On July 27, 2011[,] [Appellant’s]
post-sentence motions were denied without a hearing.[5]

On September 21, 2011 [Appellant] filed a motion to
supplement the record. On October 14, 2011 the court
denied the motion.

On April 24, 2012 the Commonwealth filed a motion to
strike improper exhibits, documents and arguments in
Appellant’s Brief and reproduced record pursuant to
Pa.R.A.P. 1921. On April 30, 2012, [Appellant] filed an
answer in opposition to the Commonwealth’s motion to
strike. On May 11, 2012, the court denied the
Commonwealth’s motion to strike.

PCRA Court Opinion at 2-3 (unnecessary capitalization omitted).

On August 8, 2012, this Court affirmed Appellant’s January 20, 2010

judgment of sentence. Appellant filed a counseled PCRA petition on January

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5
On August 25, 2011, in consideration of Appellant’s notice of appeal, the
court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of upon appeal, and Appellant timely complied.

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2, 2013. After an evidentiary hearing on August 1, 2013, the court denied

Appellant PCRA relief on March 4, 2014.

On March 10, 2014, Appellant filed a notice of appeal. On March 13,

2014, the court ordered Appellant to file a concise statement of errors

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

complied on March 20, 2014.

Appellant raises the following five issues for our review:

I. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO CALL CERTAIN
WITNESSES AND INTRODUCE OTHER EVIDENCE WHICH
WOULD HAVE ESTABLISHED THAT THE DECEDENT WAS IN
FACT ARMED WITH A HANDGUN PRIOR TO BEING SHOT
AND WHICH WOULD HAVE SUPPORTED AN INSTRUCTION
ON BOTH MANSLAUGHTER AND SELF-DEFENSE WHERE
TRIAL COUNSEL ULTIMATELY ADMITTED DURING THE
EVIDENTIARY HEARING THAT SAID WITNESSES AND
EVIDENCE EXISTED AT THE TIME OF TRIAL DESPITE HER
CLAIMS TO THE CONTRARY?

II. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO CALL
APPELLANT AS A TRIAL WITNESS WHOSE TESTIMONY
WOULD HAVE SUPPORTED AN INSTRUCTION ON SELF-
DEFENSE?

III. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO PRESENT A
COGENT THEORY OF DEFENSE AND BY FAILING TO
REQUEST AN INSTRUCTION ON THE THEORY OF SELF-
DEFENSE?

IV. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY ELICITING TESTIMONY
THAT APPELLANT HAD ENGAGED IN PRIOR CRIMINAL
ACTIVITY AND BY STATING IN HER CLOSING ARGUMENT
THAT APPELLANT HAD ENGAGED IN SUCH ACTIVITY?

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V. WHETHER THE TRIAL COURT ERRED BY FAILING TO “WRIT
IN” A WITNESS WHO POSSESSED “NEWLY DISCOVERED”
EVIDENCE IN FURTHER SUPPORT OF APPELLANT’S
POSITION THAT THE DECEDENT WAS IN-FACT ARMED
WITH A HANDGUN PRIOR TO BEING SHOT?

Appellant’s Brief at 4.

Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

To be eligible for PCRA relief, a petitioner must plead and prove, by a

preponderance of the evidence, that his conviction or sentence was the

result of one or more of the following:

(i) A violation of the Constitution of this
Commonwealth or the Constitution or laws of the United
States which, in the circumstances of the particular
case, so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have
taken place.

(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication
of guilt or innocence could have taken place.

(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement
caused the petitioner to plead guilty and the petitioner
is innocent.

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(iv) The improper obstruction by government officials
of the petitioner's right of appeal where a meritorious
appealable issue existed and was properly preserved in
the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of
exculpatory evidence that has subsequently become
available and would have changed the outcome of the
trial if it had been introduced.

(vii) The imposition of a sentence greater than the
lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2).

In his first four issues on appeal, Appellant argues his counsel was

ineffective and concludes the ineffective assistance of counsel entitles him to

a new trial. We disagree.

This Court follows the Pierce6 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

When a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from
ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place. We have
interpreted this provision in the PCRA to mean that the
petitioner must show: (1) that his claim of counsel’s
ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and
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6
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).

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(3) that the error of counsel prejudiced the petitioner-i.e.,
that there is a reasonable probability that, but for the error
of counsel, the outcome of the proceeding would have
been different. We presume that counsel is effective, and
it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). The

petitioner bears the burden of proving all three prongs of this test.

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an

appellant fails to prove by a preponderance of the evidence any of the

Pierce prongs, the Court need not address the remaining prongs of the

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),

appeal denied, 990 A.2d 727 (2010) (citation omitted).

In his first and third issues, Appellant claims counsel was ineffective

for failing to present a self-defense or manslaughter defense. Appellant

argues counsel should have called certain witnesses who would have

testified that Victim had a gun, made threatening comments about

Appellant, and had a history of violent behavior. He claims that testimony

from these witnesses would have supported a self-defense or manslaughter

defense. Further, Appellant contends counsel was aware of the existence of

the witnesses and other evidence of Victim’s violence and that counsel’s

failure to call the witnesses and present a self-defense or manslaughter

defense was ineffective. We disagree.

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To obtain relief on a missing witness claim, the appellant is required to

establish that (1) the witness existed; (2) the witness was available; (3)

counsel was informed of the existence of the witness or counsel should

otherwise have known of him; (4) the witness was prepared to cooperate

and testify for appellant at trial; and (5) the absence of the testimony

prejudiced appellant so as to deny him a fair trial. Commonwealth v.

Stanley, 632 A.2d 871, 872 (Pa.1993) (citing Commonwealth v. Petras,

534 A.2d 483, 485 (Pa.Super.1987)). It is the appellant’s responsibility to

show that counsel was actually aware of the witness’s existence or had a

duty to know of the witness. Id. “Moreover, Appellant must show how the

uncalled witnesses’ testimony would have been beneficial under the

circumstances of the case.” Commonwealth v. Gibson, 951 A.2d 1110,

1134 (Pa.2008) (internal citations omitted).

Here, because Appellant and counsel chose to employ a strategy of

poking holes in the prosecution’s case and not to pursue a defense of

voluntary manslaughter or self-defense, Appellant did not show how the

uncalled witnesses’ testimony would have been beneficial under the

circumstances of the case. See Gibson, supra..

“Under Pennsylvania law, a homicide defendant is entitled to a charge

on involuntary or voluntary manslaughter only if the evidence adduced at

trial would reasonably support a verdict on such a charge.”

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Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa.Super.1996), appeal

denied, 695 A.2d 786 (Pa.1997).

Voluntary manslaughter is defined by statute:

§ 2503. Voluntary manslaughter

(a) General rule.--A person who kills an individual
without lawful justification commits voluntary
manslaughter if at the time of the killing he is acting under
a sudden and intense passion resulting from serious
provocation by:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but he
negligently or accidentally causes the death of the
individual killed.

18 Pa.C.S. § 2503.

To establish a claim of self-defense, a defendant must prove three

elements: “(a) [that the defendant] reasonably believed that he was in

imminent danger of death or serious bodily injury and that it was necessary

to use deadly force against the victim to prevent such harm; (b) that the

defendant was free from fault in provoking the difficulty which culminated in

the slaying; and (c) that the [defendant] did not violate any duty to retreat.”

Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa.2012) (internal

footnotes omitted). Although the burden is on the Commonwealth to prove

beyond a reasonable doubt that the defendant was not acting in self-

defense, “before the defense is properly in issue, there must be some

evidence, from whatever source, to justify such a finding.” Id. at 741.

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Here, there was not enough evidence to support a finding of voluntary

manslaughter or self-defense. See Soltis, supra; Mouzon, supra. Based

on evidence that Appellant shot Victim in the back four times and Appellant’s

unwillingness to testify or admit that he shot Victim, Appellant and counsel

chose to employ a strategy of poking holes in the prosecution’s case instead

of presenting a self-defense or voluntary manslaughter defense. For this

reason, counsel had no reason to call witnesses who might have said that

Victim had a gun or was violent. The PCRA court reasoned:

Trial counsel cannot be deemed ineffective for failing to
call witnesses to support defenses which were not options
available to trial counsel at the time of trial.

* * *

The evidence in this case did not support a claim of serious
provocation by the victim causing a sudden and intense
passion by [Appellant] resulting in [Victim’s] death. There
were two incidents which involved arguments between
appellant and [Victim] but neither could be characterized
as involving a serious provocation by [Victim] causing
[Appellant] to react with a sudden and intense passion.
The evidence established that there had been an exchange
of words without a physical confrontation. The record is
devoid of evidence of sudden and intense serious
provocation which would have supported a voluntary
manslaughter instruction.

* * *

The evidence in this case did not support a claim of
necessity due to imminent danger of death, great bodily
harm, or the commission of a felony, resulting in [Victim’s]
death. There was no testimony to suggest that [Appellant]
was fearful of [Victim] or believed that [Victim] had a
weapon. Additionally, the testimony at trial established
that once [Victim] began to run away from [Appellant],

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[Appellant] continued shooting and hit [Victim] four times
in the back. The record is devoid of any evidence of
necessity which would justify a finding of self-defense.
This claim is therefore without merit.

PCRA Court Opinion at 5-7.

We agree with the PCRA court’s determination that Appellant’s first

and third issues lack merit.

In his second issue, Appellant complains that counsel was ineffective

for failing to call Appellant as a witness to support a self-defense theory. We

disagree.

We observe:

The decision of whether or not to testify on one’s own
behalf is ultimately to be made by the defendant after full
consultation with counsel. In order to sustain a claim that
counsel was ineffective for failing to advise the appellant of
his rights in this regard, the appellant must demonstrate
either that counsel interfered with his right to testify, or
that counsel gave specific advice so unreasonable as to
vitiate a knowing and intelligent decision to testify on his
own behalf.

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super.2013) (citing

Commonwealth v. Nieves, 746 A.2d 1102 (Pa.2000).

[U]nless appellant can show that counsel interfered with
his freedom to decide to testify or unless appellant can
point to specific advice of counsel so unreasonable as to
vitiate a knowing and intelligent decision to testify,
appellant cannot succeed on an ineffective assistance of
counsel claim.

Com. v. Bango, 685 A.2d 564, 567 (Pa.Super.1996) aff'd, 742 A.2d 1070

(Pa.1999).

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In the instant case, the PCRA court properly determined that

Appellant’s second claim lacks merit. The court gave Appellant a thorough

colloquy of his absolute right to testify or not to testify. Appellant admitted

at his PCRA hearing that he chose not to testify, despite his attorney’s

contrary advice. Further, as discussed above, the instruction of self-defense

was not appropriate, and Appellant’s testimony would not have altered the

conclusion.

In his fourth issue, Appellant argues counsel was ineffective for

eliciting evidence of Appellant’s prior criminal activity, and for mentioning it

during her closing argument. Again, we disagree with Appellant.

Appellant’s counsel had a strategic basis for mentioning possible

criminal activity in her closing argument, namely giving the jury some

possible reasons, other than murder, that could make a person run from the

police. Thus, his claim lacks merit. See Pierce, supra.

The trial court reasoned:

A review of the record does not indicate that trial counsel
introduced evidence that [Appellant] had engaged in prior
criminal activity. During cross-examination of Detective
Jay, trial counsel elicited testimony as to whether there
were any controlled substances in the house, and he
responded that crack cocaine was found. In trial counsel’s
closing argument, she stated that [Appellant] was running
from the police on the night of the incident, but that this
fact was not necessarily indicative of [Appellant’s] guilt.
She suggested to the jury that there are many reasons
why one would run from the police, and stated, “Maybe
you have a probation violation...maybe you failed to
appear for a bench warrant...maybe there’s drugs in the
house.” This does not constitute a statement or inference

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to the jury that [Appellant] had a prior criminal record.
Trial counsel testified that she had strategically offered
these suggestions to the jury as a way of countering the
Commonwealth’s argument that [Appellant] “was running
away from knowing that he was going to be arrested for
murder.” Although trial counsel did let in evidence that
[Appellant] had a probation or parole violation which would
have generated a warrant, this was relevant for the
aforementioned purposes of furnishing the context and
completing the story of the events surrounding the
incident. Furthermore, trial counsel testified that she had
discussed this decision with [Appellant] prior to the start of
trial and that he never took issue with the proposed
strategy.

In the Commonwealth’s opening, the prosecutor made a
statement that [Appellant] was friends with the
Commonwealth’s witnesses, was with them the night of
the incident, and that these witnesses had criminal
histories. Trial counsel states that the reason she did not
object to this portion or any other of the Commonwealth’s
opening was because she believed “That was his
explanation of why his witnesses were less than forthright
and changed their stories, which was part of my defense
as well.” Trial counsel neither elicited testimony nor stated
that [Appellant] had engaged in prior criminal activity. This
claim is therefore without merit.

Trial Court Opinion at 8-9.

In his final issue, Appellant attempts to obtain PCRA relief by claiming

he has newly discovered evidence, specifically a notarized letter from a

fellow inmate, John Webb, who explains Victim had a gun. Appellant argues

that testimony of Mr. Webb would support a self-defense theory for

Appellant.

To be eligible for PCRA relief based on after acquired evidence, the

appellant must plead and prove by a preponderance of the evidence “[t]he

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unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” 42 Pa.C.S. § 9543 (a)(2)(vi). A petitioner

must establish that: “(1) the evidence has been discovered after trial and it

could not have been obtained at or prior to trial through reasonable

diligence; (2) the evidence is not cumulative; (3) it is not being used solely

to impeach credibility; and (4) it would likely compel a different verdict.”

Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa.2004) (quoting

Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa.1998)).

Appellant is attempting to introduce a letter written after the trial from

a fellow inmate that Appellant claims had a conversation with a witness. He

fails to plead and prove that this letter is exculpatory evidence that was not

available at the time of trial, has subsequently become available, and would

change the outcome of the trial. See D’Amato, supra. The trial court

reasoned:

The letter is unsubstantiated hearsay from a convicted
felon regarding a conversation he allegedly had with a
Commonwealth witness after trial. Additionally, two eye
witnesses at trial, Rashaad Carroll and Jabree Branch, both
testified regarding the shooting and death of [Victim] at
trial. Neither Caroll nor Branch, who is a friend of
[Appellant], testified that [Victim] was carrying a handgun
prior to being shot. This claim is therefore without merit.

PCRA Court Opinion at 10.

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We see no reason to disturb the PCRA court’s findings or

determinations because they are supported by the evidence and free of legal

error. See Barndt, supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/26/2015

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