Com. v. Wright, D.

J-S44035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
             v.                             :
                                            :
DARIN WRIGHT,                               :
                                            :
                   Appellant                :           No. 1723 EDA 2015

                   Appeal from the PCRA Order May 11, 2015
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0009147-2008

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 28, 2016

        Darin Wright (“Wright”) appeals from the Order denying his first

Petition filed pursuant to the Post Conviction Relief Act.1 We affirm.

        The PCRA court set forth the relevant factual and procedural history in

its Opinion, which we adopt for the purpose of this appeal. See PCRA Court

Opinion, 7/10/15, at 1-3.2

        On appeal, Wright raises the following issues for our review:

        1. Was trial counsel ineffective because he failed to object – on
           due process grounds – to the [trial] court’s initial and final
           instructions on demeanor evidence?




1
    See 42 Pa.C.S.A. §§ 9541-9546.
2
  In its Opinion, the PCRA court incorporated the trial court’s recitation of
facts, wherein the trial court mistakenly indicated that “Defendant” was
pronounced dead at the scene. See PCRA Court Opinion, 7/10/15, at 2
(citing Trial Court Opinion, 4/19/12, at 2-3). We assume that the trial court
intended to indicate that “the victim” was pronounced dead at the scene.
J-S44035-16


      2. Was direct [appeal] counsel ineffective because he waived
         [Wright’s] claim that the prosecutor went outside the record
         in his summation?

      3. Was trial counsel ineffective because he called Dr. Donald
         Tibbs as an expert in the area of hip-hop [music] to try to
         interpret the lyrics in the video made by [Wright]?

Brief for Appellant at 5 (capitalization omitted).

      In his first issue, Wright points to the trial court’s jury instruction on

assessing the credibility of witnesses, and contends that “[n]o standards

were imparted to the jury on how to judge ‘a convincing manner,’ or how to

judge a witness’s ‘look,’ or speech, or how to assess credibility from

demeanor.” Id. at 8. Wright asserts that his “trial counsel had no strategic

reason for not objecting – on due process grounds – to these credibility

factors in the court’s charge.” Id. Wright claims that the jury instruction

violated his federal constitutional rights because it instructed the jury to

draw inferences of credibility from factors that do not support an inference of

credibility. Id. at 12. Wright argues that the trial court’s jury instruction

“throws irrational factors into the decision making process.”       Id. at 14.

According to Wright, how the witness looked or acted, or the manner of

speech used by the witness, has no bearing on the witness’s credibility. Id.

Wright asserts that, because the effect of the trial court’s error cannot be

assessed, it constitutes a structural error from which prejudice must be

presumed. Id. at 16.




                                   -2-
J-S44035-16


      The PCRA court set forth the relevant law, addressed Wright’s first

issue, and determined that it lacks merit.         See PCRA Court Opinion,

7/10/15, at 9. We agree with the reasoning of the PCRA court and affirm on

this basis as to Wright’s first issue. See id.

      In his second issue, Wright contends that, although his direct appeal

counsel raised the claim that the trial court erred by denying Wright’s Motion

for a mistrial following the prosecutor’s reference to evidence outside the

record during his summation, the claim was deemed waived because direct

appeal counsel provided no analysis, citation to the record, or citation to

legal authority.3   Brief for Appellant at 17.   Wright asserts that this claim

“was meritorious to the point that it could have won a new trial,” and that

direct appeal counsel had no strategic reason for waiving the claim.       Id.

Wright claims that his trial counsel’s approval of a curative instruction did

not result in waiver of his Motion for mistrial based on the prosecutor’s

comments. Id. at 18. Wright argues that the Commonwealth cannot show

that the prosecutor’s comments “in no way contributed to the verdict.” Id.

at 22. Wright contends that direct appeal counsel was ineffective for failing

to properly brief the issue. Id. at 24.

      The PCRA court set forth the relevant law, addressed Wright’s second

issue, and determined that it lacks merit.         See PCRA Court Opinion,

3
 In his summation to the jury, the prosecutor argued that Wright’s intent to
kill the victim could be inferred from Wright’s statement that the victim
“caught me slipping, he caught me sleeping.” PCRA Court Opinion, 7/10/15,
at 7 (citing N.T., 9/12/11, at 81).


                                   -3-
J-S44035-16


7/10/15, at 7-9; see also Commonwealth v. Wright, 68 A.3d 363 (Pa.

Super. 2013) (unpublished memorandum at 9) (wherein a panel of this

Court noted the “overwhelming evidence of [Wright’s] guilt as established by

eyewitness testimony at trial”). We agree with the reasoning of the PCRA

court and affirm on this basis as to Wright’s second issue. See PCRA Court

Opinion, 7/10/15, at 7-9.

      In his final issue, Wright contends that trial counsel’s decision to call

Dr. Donald Tibbs (“Dr. Tibbs”) as an expert in hip-hop music, to provide

opinion testimony regarding the meaning of the lyrics that Wright had used

in his music video, constitutes a “misguided trial strategy [which] destroyed

[Wright’s] presumption of innocence and his character.” Brief for Appellant

at 28.   Wright asserts that Dr. Tibbs did not specify as to what degree of

certainty he held his opinions, and his opinions were not based on “scientific

acceptability in [] published, peer[-]reviewed literature.” Id. at 25. Wright

claims that, at the conclusion of Dr. Tibbs’s testimony, “the jury was left

with [Dr. Tibbs’s] essential position[,] which was [that Wright was] rapping

about the shooting of a driver of a car with a 9[-]millimeter [gun] in broad

daylight … [and it] was just a vast and terrible coincidence in that these

facts matched the facts of the murder charged to [Wright].” Id. at 26-27.

Wright argues that “[t]rial counsel apparently realized his dire mistake[,]

and did not mention Dr. Tibbs in his closing address to the jury.” Id. at 27.




                                  -4-
J-S44035-16


Wright contends that, as a result of trial counsel’s decision to present the

testimony of Dr. Tibbs, Wright was deprived of a fair trial. Id. at 30.

      The PCRA court set forth the relevant law, addressed Wright’s third

issue, and determined that it lacks merit.        See PCRA Court Opinion,

7/10/15, at 4-6; see also Commonwealth v. Talbert, 129 A.3d 536, 541

(Pa. Super. 2015) (concluding that the defendant’s rap music video

describing the murder at issue was relevant and admissible). We agree with

the reasoning of the PCRA court and affirm on this basis as to Wright’s third

issue. See PCRA Court Opinion, 7/10/15, at 4-6.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/28/2016




                                  -5-
                                                                                                  Circulated 05/27/2016 02:59 PM



                                IN THE COURT OF COMMON PLEAS
                           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                    CRIMINAL TRIAL DIVISION


       COMMONWEAL TH OF                                                                  CP-5 l-CR-000914 7-2008
       PENNSYLVANIA                    CP-51-CR-0009147-2008 Comm. v, Wright, Darin K.
                                                          Opinior.
                                                                                                    FILED
                v.
                                                                                                 JUL 1 0 7.015
       DARIN WRIGHT
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                                                             7317963261
                                                                                                PostTrial UnM:
                                                               OPINION

       BRONSON,J.                                                                               July 10, 2015

                                   I. PROCEDURALBACKGROUND
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