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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
EDWARD LEON MAJOR, :
:
Appellant : No. 212 MDA 2015
Appeal from the PCRA Order entered on December 30, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, No. CP-36-CR-0001619-2010
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 22, 2015
Edward Leon Major (“Major”) appeals from the Order denying his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On October 24, 2004, Major, along with three co-conspirators, entered
Heather Nunn’s (“Nunn”) home at 224 Pearl Street, Lancaster County, in an
attempt to rob Nunn. With her two children upstairs, Nunn confronted Major
at the front door. A struggle ensued between the two parties, at which point
Nunn was shot three times in her chest at point blank range. Nunn died as a
result of the gunshot wounds. Early investigations failed to link Major and
his accomplices to the murder. On December 9, 2009, detectives, following
up on a lead, interviewed Major’s cousin, Kevin Major (“Kevin”). Kevin
identified Major and three other men as the men responsible for the
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unsolved crime. Kevin also identified Major as the triggerman who shot and
killed Nunn. Thereafter, Major and his co-conspirators were taken into
custody and charged with Nunn’s murder.
On March 21, 2011, following a two-week jury trial, Major was
convicted of Murder of the First Degree.1 The trial court sentenced Major to
life in prison without the possibility of parole. This Court affirmed the
judgment of sentence, and the Pennsylvania Supreme Court denied
allowance of appeal. See Commonwealth v. Major, 48 A.3d 484 (Pa.
Super. 2012) (unpublished memorandum), appeal denied, 54 A.3d 347 (Pa.
2012).
Major filed a timely pro se PCRA Petition. Major was appointed
counsel, who then filed an amended Petition. A hearing was held on August
14, 2014. Thereafter, the PCRA court denied the Petition. Major filed a
timely Notice of Appeal.
On appeal, Major raises the following question for our review:
“Whether [Major] was entitled to Post Conviction Relief due to ineffective
assistance of counsel[?]” Brief for Appellant at iii.
We review an order [denying] a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of the record. We will not disturb a PCRA
court’s ruling if it is supported by evidence of record and is free
of legal error.
1
18 Pa.C.S.A. § 2502(a).
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Major contends that trial counsel was ineffective for failing to request a
change of venue. Brief for Appellant at 5-8. Major argues that a change of
venue was necessary in order to receive a fair and impartial trial due to pre-
trial publicity. Id. at 6. Major directs this Court’s attention to local
newspaper articles published after the murder, including six articles between
October 24, 2004, and October 31, 2004, two additional articles in
December 2004, and one in March 2005. Id. at 6-8. Major also asserts that
three more additional articles were published in March and April 2010,
around the time of trial. Id. at 7, 8; see also id. at 7 (where Major argues
that there were also articles regarding the trial itself, during the time of the
trial). Major claims he raised the issue with counsel, and that one juror
indicated she had read articles about the case prior to trial. Id. at 7. Major
contends that he was prejudiced by his trial counsel’s ineffectiveness in not
requesting a venue change. Id. at 9.
To succeed on an ineffectiveness claim, Major must demonstrate by
the preponderance of the evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but
for counsel’s ineffectiveness, there is a reasonable probability
that the outcome of the proceedings would have been different.
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Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). “A failure to satisfy
any prong of the test for ineffectiveness will require rejection of the claim.”
Commonwealth v. Bryant, 855 A.2d 726, 736 (Pa. 2004). Counsel is
presumed to be effective and the burden is on the appellant to prove
otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).
A change in venue is compelled whenever a trial court
concludes a fair and impartial jury cannot be selected from the
residents of the county where the crime occurred. As a general
rule, for a defendant to be entitled to a change of venue because
of pretrial publicity, he or she must show that the publicity
caused actual prejudice by preventing the empaneling of an
impartial jury. The mere existence of pretrial publicity alone,
however, does not constitute actual prejudice.
Commonwealth v. Briggs, 12 A.3d 291, 313 (Pa. 2011) (citations
omitted). The jurors are not required to be totally ignorant of the facts and
issues involved. Id. “It is sufficient if the juror can lay aside his impression
or opinion and render a verdict based on the evidence presented in court.”
Id. at 314 (citation omitted).
Nevertheless, there are some instances in which pretrial publicity can
be so pervasive and inflammatory that a defendant does not have to prove
actual prejudice. See id.
Prejudice will be presumed whenever a defendant demonstrates
that the pretrial publicity: (1) was sensational, inflammatory,
and slanted toward conviction, rather than factual and objective;
(2) revealed the defendant’s prior criminal record, if any, or
referred to confessions, admissions or reenactments of the crime
by the defendant; or (3) derived from official police or
prosecutorial reports. However, if the defendant proves the
existence of one or more of these circumstances, a change of
venue will still not be compelled unless the defendant also
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demonstrates that the presumptively prejudicial pretrial publicity
was so extensive, sustained, and pervasive that the community
must be deemed to have been saturated with it, and that there
was insufficient time between the publicity and the trial for any
prejudice to have dissipated.
Briggs, 12 A.3d at 314 (citations and quotation marks omitted).
At the PCRA hearing, trial counsel testified that media attention
leading up to the trial was nothing out of the ordinary. See N.T., 8/14/14,
at 20. Counsel testifies that the initial articles from 2004 provided factual
information that Nunn was the mother of two, was shot and killed in her
home while the children were upstairs, and that no arrests had been made in
connection with the crime. Id. at 23-5. In addition, counsel stated that the
two 2005 articles briefly addressed the case as an example of stalled
investigations in Lancaster County, while referencing other stalled
investigations in the community. Id. at 25. Further, counsel testified that
the 2010 articles reiterated the facts of the case with the additional
information that Major and his co-conspirators were arrested and charged
with the crime. Id. Trial counsel indicated that he received no calls at the
office regarding the case, and press coverage was minimal. Id. at 20. Trial
counsel further stated that, at the time of trial, the case was not fresh in the
minds of the public. Id.
Our review discloses that the publicity was far from being extensive,
sustained, and pervasive, as required for the presumption of prejudice to
support a motion for change of venue. See Briggs, 12 A.3d at 314.
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Indeed, the record does not support Major’s claim that jurors would recall or
rely on the 2004 and 2005 articles written six years before trial. See
Commonwealth v. Tharp, 830 A.2d 519, 529 (Pa. 2003) (stating there
was a sufficient lapse of time between the end of the complained-of media
coverage and the beginning of jury selection for the adverse effects of the
publicity to dissipate). Further, contrary to Major’s argument that the case
was a “cold case” that “sticks in members of the community’s minds,” Brief
for Appellant at 8, a “cold case” does not warrant a presumption of
prejudice. Finally, the 2010 articles objectively informed the public about
the murder and that Major had been arrested. See PCRA Court Opinion,
12/30/14, at 6, 7.
Additionally, the record does not support Major’s claim that pretrial
publicity resulted in actual prejudice by preventing the impaneling of an
impartial jury. See id. at 313. Eleven of the twelve jurors had never heard
of the case before. See N.T., 8/14/14, at 21. Further, while one juror had
read about the case once in the paper, she was instructed that such
information was not evidence, and understood that it could not be
considered in her deliberation. See N.T., 3/7/11, at 402-13; see also
Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992) (stating that the
presumption in our law is that the jury follows a trial court’s instructions).
Further, trial counsel testified that he would have used a peremptory strike
during voir dire if he felt that any prospective juror was prejudiced by what
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they had read or heard about the case. N.T., 8/14/14, at 21-22. Though
pretrial publicity existed to a limited extent, Major fails to establish actual
prejudice requiring a change of venue. See Briggs, 12 A.3d at 313.
Based upon the foregoing, Major’s PCRA Petition fails to state a claim
of arguable merit. Accordingly, Major’s ineffectiveness claim fails. See
Commonwealth v. Eichinger, 108 A.3d 821, 831 (Pa. 2014);
Commonwealth v. Washington, 927 A.2d 586, 603 (Pa. 2007).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2015
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