J-S42008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHERROD RICE,
Appellant No. 1746 EDA 2014
Appeal from the PCRA Order June 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0400722-2003
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 14, 2016
Appellant, Sherrod Rice, appeals from the Order entered on June 12,
2014, that denied his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The relevant facts of this case were set forth by a prior panel of this
Court in addressing Appellant’s direct appeal in 2009. This Court, quoting
the trial court, stated as follows:
The trial court summarized the procedural and factual
history of this case as follows:
[Appellant], Sherrod Rice, went to trial for the
above-captioned case before this court, and he
elected to be tried by a jury. This was a retrial of a
capital case, as the first trial ended on April 4, 2005
as a hung jury. [Appellant] was re-tried with his two
co-defendants, Dyrome Fuller and Robert
*
Former Justice specially assigned to the Superior Court.
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Richardson. The instant trial commenced on January
19, 2006, with the jury being sworn in and
[Appellant] being formally arraigned on the charges
of murder, firearms not to be carried without a
license, carrying firearms on public streets or public
property, possessing instruments of crime, criminal
conspiracy, aggravated assault, and recklessly
endangering another person. At the time of his
arraignment before the sworn jury, he pleaded not
guilty to all of the charges against him.
The Commonwealth rested its case against
[Appellant] on January 31, 2006, after presenting
witness testimony and forensic evidence. [Appellant]
offered no testimonial or physical evidence on his
own behalf, and rested his case after agreeing to a
final set of evidentiary stipulations.
The jury rendered its verdict on February 2,
2006. They found [Appellant] guilty of all charges.
They returned a verdict of first-degree murder as to
the general charge of murder for that bill of
information, and found him guilty of all of the other
offenses as charged. The trial court had previously
entered a judgment of acquittal for the charge of
firearms not to be carried without a license. The
penalty phase of the trial was continued to February
6, 2006. On that date, the trial court granted
[Appellant’s] challenge to the proposed “death
qualifying aggravating factors”.
The formal sentencing hearing for [Appellant]
was deferred, and a pre-sentence investigation
report and mental health evaluation were ordered.
After a review of the facts of this case, [Appellant’s]
prior record score, and his offense gravity score,
[Appellant] was sentenced on March 22, 2006. At
that time, [Appellant] was sentenced to the
mandatory sentence of life imprisonment for the
first-degree murder conviction. He received
sentences of imprisonment of two and one half years
to five years for the possessing instruments of crime
conviction, two and one half to five years’
imprisonment for firearms not to be carried on public
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street or public property, ten to twenty years for
criminal conspiracy, ten to twenty years for
aggravated assault, and one to two years for
reckless endangering another person. All of these
sentences were to run consecutive to the sentence of
life imprisonment and consecutive to each other.
A direct appeal to the Superior Court of
Pennsylvania followed, and was timely filed.
However, that appeal was dismissed for previous
appellate counsel’s failure to file a 1925(b)
statement. The appeal was reinstated by the
Superior Court pursuant to a motion by present
appellate counsel who cited the trial court reporter’s
failure to provide transcripts as the reason for the
inability to file a 1925(b) statement. This opinion by
the trial court is in response to the Pa.R.A.P. 1925(b)
statement that was ultimately filed by [Appellant] on
July 11, 2008.
FACTS:
On the afternoon of June 29, 2002, three of
the Commonwealth witnesses in this case, Ronald
James, Gregory Allen, and Hakim Lane, were
involved in a confrontation on a residential street in
Southwest Philadelphia that allegedly centered on
drug trafficking. There were gunshots fired at that
time, but no one was hit or injured. After this
incident, Hakim Lane summoned some of his friends
from North Philadelphia to retaliate against Ronald
James.
These “Friends” were [Appellant] and his two
codefendants, and they arrived on the block shortly
after the first altercation had ended. [Appellant] and
one of his codefendants were armed with automatic
handguns, and the second co-defendant came to the
scene with an assault rifle. The prosecution
witnesses linked [Appellant] with a nine millimeter
weapon that he was found with at the time of his
arrest some months later.
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As they entered the block after turning the
corner, all three of them began firing in an apparent
attempt to shoot Ronald James. When the shooting
commenced, there were a number of adults and
children who were sitting, walking, or playing on the
block. The Commonwealth offered testimony that
there were close to forty shots fired that afternoon
from the three weapons that [Appellant] and co-
defendants possessed. Car windows were shattered,
porches were struck, and two people were wounded.
The decedent, Omain Gullette, was fatally wounded
as he attempted to run away from the gunfire.
Another one of the unfortunate bystanders that
afternoon, Akeem Johnson, was severely injured
when he suffered gunshot wounds to one of his legs
as he stepped off his porch to go to the grocery
store.
Eyewitnesses were called by the
Commonwealth, and they testified that they saw
[Appellant] and co-defendants shooting up and down
the street on the afternoon in question. In addition,
there was testimonial evidence that detailed the
defendants’ relationship to each other, the reason
they were on the block that afternoon, and the
earlier conflicts that prompted them to arrive there
with the intent to kill or seriously injure Mr. James.
None of the three defendants offered any substantive
evidence to rebut the account of the incident that
was presented to the jury by the Commonwealth
witnesses, though they did challenge the credibility
of the eyewitnesses to this tragic event.
Trial Court Opinion (T.C.O.), 8/12/08, at 1-5.
Commonwealth v. Rice, 1490 EDA 2006, 981 A.2d 320 (Pa. Super. filed
June 17, 2009) (unpublished memorandum at 1-4).
The prior panel of this Court affirmed Appellant’s judgment of sentence
in the memorandum cited above on June 17, 2009. On December 18, 2009,
Appellant filed a timely PCRA petition. Barbara McDermott, Esquire, filed a
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counseled and amended PCRA petition on August 31, 2011. Subsequently,
the PCRA court appointed Emily Cherniack, Esquire to represent Appellant,
and Attorney Cherniack filed a supplemental PCRA petition on July 20, 2012,
and a second supplemental PCRA petition on July 11, 2013. On June 12,
2014, the PCRA court denied Appellant’s PCRA petition.
Appellant, through Attorney Cherniack, filed a timely appeal from the
PCRA court’s denial of his PCRA petition. While the appeal was pending,
Appellant filed a pro se letter with this Court challenging Attorney
Cherniack’s effectiveness as counsel. This Court forwarded Appellant’s pro
se letter to Attorney Cherniack pursuant to Commonwealth v. Jette, 23
A.3d 1032, 1044 (Pa. 2011). On June 3, 2015, Attorney Cherniack filed a
document with this Court in which she sought to either withdraw as counsel
or have the case remanded for a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998).1 On July 23, 2015, this Court filed an
order denying in part and granting in part Attorney Cherniack’s motion to
withdraw. In the July 23, 2015 order, we stated as follows:
Appellant, Sherrod Rice, is currently appealing an order
dismissing a first petition filed under the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. During the pendency of
the instant appeal, Appellant filed pro se documents assailing,
inter alia, the effectiveness of Attorney Emily Cherniack, his
appellate counsel. These documents were forwarded to Attorney
Cherniack pursuant to Pa.R.A.P. 3304 and Commonwealth v.
1
In Grazier, our Supreme Court held that where a defendant seeks to
waive his right to counsel, an on-the-record determination should be made
concerning whether that waiver is knowing, intelligent, and voluntary. Id.
at 12-13.
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Jette, 23 A.3d 1032, 1044 (Pa. 2011). On June 3, 2015, in
response to Appellant’s pro se pleadings, Attorney Cherniack
filed the aforementioned Petition to Withdraw as Counsel or in
the Alternative, Remand for a Grazier Hearing.
In Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.
Super. 2003), this Court explained that “[b]efore an attorney
can be permitted to withdraw from representing a petitioner
under the PCRA, Pennsylvania law requires counsel to file and
obtain approval of a ‘no-merit’ letter pursuant to the mandates
of Turner/Finley.”[2] Id. at 947 (citation omitted). In addition,
in Grazier, our Supreme Court set forth the requirement that an
on-the-record inquiry must be conducted to determine whether
an appellant’s waiver of counsel is knowing, intelligent, and
voluntary.
Here, Attorney Cherniack’s petition does not satisfy the
standards for withdrawal under Turner/Finley. Accordingly, we
DENY, without prejudice to raise the issue on remand, counsel’s
petition to withdraw. Moreover, while Appellant has expressed
his displeasure with present counsel and purported to raise
issues he desires to have decided by this Court, he has not
specifically requested to proceed pro se. Nevertheless, given the
pro se documents already filed by Appellant and Attorney
Cherniack’s petition, we find it prudent to remand this matter to
the PCRA Court for further proceedings. Therefore, we GRANT
counsel’s petition to remand for a hearing.
At this hearing, the PCRA court shall make the following
determinations: 1) if Appellant desires to represent himself, the
PCRA court shall conduct an on-the-record colloquy pursuant to
Grazier as to whether Appellant may proceed pro se; 2) if
Appellant does not wish to proceed pro se, the PCRA court shall
determine whether Attorney Cherniack may be permitted to
withdraw as counsel; and 3) if the PCRA court permits Attorney
Cherniack to withdraw, it shall determine if Appellant is entitled
to the appointment of new counsel. This hearing shall be
held within thirty days from the filing of this order, and
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) are
the seminal Pennsylvania cases discussing the requirements counsel must
satisfy in order to withdraw from representing a defendant on collateral
review.
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the PCRA court shall promptly notify this Court of its
determination. Upon notification of the PCRA court’s
determination, the Superior Court Prothonotary shall establish a
new briefing schedule.
Order, 7/23/15 (emphasis in original).
The PCRA court promptly complied with this Court’s directive and held
a Grazier hearing on August 18, 2015. Following the hearing, the PCRA
court permitted Attorney Cherniack to withdraw, determined that Appellant
did not desire to represent himself, and appointed current counsel, Barnaby
C. Wittels, Esquire. Thereafter, Attorney Wittels filed a brief on Appellant’s
behalf on January 19, 2016, and the Commonwealth filed its brief in
response on June 15, 2016.3 This matter is now ripe for disposition.
On appeal, Appellant raises the following issues for this Court’s
consideration:
A. Did the PCRA court err in denying PCRA relief where trial
counsel was ineffective for failing to object to an improper and
constitutionally incorrect jury instruction on specific intent to kill
in this first degree murder case?
B. Did the PCRA Court err in not granting an evidentiary hearing
so that Appellant could present testimony relative to trial
counsel’s failure to properly investigate the case?
C. Did the PCRA Court err in not granting an evidentiary hearing
so that Appellant could testify that trial counsel did not consult
with him prior to trial counsel admitting in his opening statement
to the jury that Appellant was guilty of some of the crimes
charged?
3
Appellant and the Commonwealth each petitioned for and were granted
three continuances in this protracted appeal. These six continuances are the
reason for the delay in our disposition of this matter.
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D. Did the PCRA Court err in not finding trial counsel ineffective
for failing to object to non-relevant and highly prejudicial
testimony at trial about drug dealing and Appellant’s role
therein?
Appellant’s Brief at 8.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
Appellant’s issues on appeal allege ineffective assistance of counsel.
When considering an allegation of ineffective assistance of counsel, we note
that counsel is presumed to have provided effective representation unless
the PCRA petitioner pleads and proves that: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his or her conduct;
and (3) appellant was prejudiced by counsel’s action or omission.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet
the prejudice prong of the ineffectiveness standard, a defendant must show
that there is a ‘reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of
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ineffective assistance of counsel will fail if the petitioner does not meet any
of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
2013). “The burden of proving ineffectiveness rests with Appellant.”
Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007). Additionally,
the right to an evidentiary hearing on a PCRA petition is not absolute, and
the PCRA court may decline to hold a hearing if the petitioner’s claims are
patently frivolous with no support in either the record or other evidence.
Commonwealth v. Walls, 993 A.2d 289 (Pa. Super. 2010); Pa.R.Crim.P.
907.
Appellant first argues that trial counsel was ineffective for failing to
object to an improper and incorrect jury instruction regarding the specific
intent to kill. On review, we are constrained to conclude that this issue was
not properly preserved.
It is well settled that in order to preserve an issue for appellate review,
an appellant must timely file a court-ordered Pa.R.A.P. 1925(b) statement of
errors complained of on appeal, and any issues not raised will be deemed
waived. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (re-
affirming the bright-line rule first set forth in Commonwealth v. Lord, 719
A.2d 306 (Pa. 1998)). Here, the Pa.R.A.P. 1925(b) statement that was filed
by prior counsel broadly alleges that “the trial court gave the incorrect jury
instruction on criminal conspiracy, accomplice liability, and first degree
murder.” Appellant’s Pa.R.A.P. 1925(b), 7/18/14, at ¶5. This issue, as
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presented to the PCRA court, fails to provide the basis for the challenge,
e.g., ineffective assistance of counsel, and fails to provide a concise error. If
Appellant was purporting to challenge that trial counsel was ineffective for
failing to object to a jury instruction, he provided a vague and imprecise
issue. In other words, all that can be gleaned from the issue as presented in
the Pa.R.A.P. 1925(b) statement is that the trial court allegedly erred in
providing its instruction to the jury on conspiracy, accomplice liability, and
first degree murder. We conclude that this overly broad claim of error fails
to preserve the issue for review. See Commonwealth v. Lemon, 804 A.2d
34, 38 (Pa. Super. 2002) (stating that when an appellant’s Pa.R.A.P.1925(b)
statement is too vague to identify his specific issue, the issue is waived).
Present counsel narrowed Appellant’s issue to an allegation that trial counsel
failed to object to the instruction as to “the specific intent to kill” element
necessary to prove first-degree murder. Appellant’s Brief at 23. However,
as stated above, this finite error was not presented to the PCRA court, and
therefore, we conclude that Appellant’s issue is waived on appeal.
In the second issue, Appellant avers that the PCRA Court erred in not
holding an evidentiary hearing to allow Appellant to present testimony
regarding trial counsel’s alleged failure to investigate this case. Specifically,
Appellant argues that trial counsel failed to investigate the backgrounds of
Commonwealth witnesses Channa Wright, Tricia Goldberg, Ronald James,
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and Darnell Peace because “much of their testimony was contradictory.”
Appellant’s Brief at 25.
On review, we point out that this is simply a bald accusation, and it is
not supported by any argument, citation to the record, or citation to relevant
authority. Accordingly, we conclude that this issue is waived.
Commonwealth v. Irvin, 134 A.3d 67, 73-74 (Pa. Super. 2016).4
In his third issue on appeal, Appellant avers that the PCRA court erred
in not holding a hearing “so Appellant could testify that trial counsel did not
consult with him prior to trial counsel admitting in his opening statement to
the jury that Appellant was guilty of some of the crimes charged.”
Appellant’s Brief at 26. We cannot agree.
At the outset, we note that Appellant had no right to an evidentiary
hearing.
A PCRA court is only required to hold a hearing where the
petition, or the Commonwealth’s answer, raises an issue of
material fact. Pa.R.Crim.P. 909(B)(1)-(2). When there are no
disputed factual issues, an evidentiary hearing is not required.
Id.; Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037,
1042 (1996) (citation omitted). If a PCRA petitioner’s offer of
proof is insufficient to establish a prima facie case, or his
allegations are refuted by the existing record, an evidentiary
hearing is unwarranted. See Commonwealth v. Hutchinson,
611 Pa. 280, 25 A.3d 277, 320 (2011) (citation omitted);
Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 17 (2011).
Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014).
4
Additionally, we point out that there is no assertion or indication in the
brief that the result of the proceedings would have been any different had
counsel investigated these witnesses. Thus, this issue would fail on that
basis as well. Reed, 42 A.3d at 319.
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The PCRA court comprehensively addressed Appellant’s issue as
follows:
During his opening statement, defense counsel conceded
to [Appellant’s] guilt as to “some of the crimes” with which he
was charged, and asked the jury to “only hold him accountable
for that which he committed.” (N.T. 1/19/06, pgs. 100-104).
Defense counsel asserted five times throughout his opening that
the evidence would show that [Appellant] “never shot” the
victim, and that he “was not guilty of first-degree murder.” Id.
Counsel did argue that [Appellant] was present at the scene of
the crime and brandished a firearm only with the intent to
confront a drug rival. It was asserted that [Appellant] neither
knew the decedent, nor had any motive to kill him.5
5
Counsel’s strategy was to show that just because
[Appellant] was present at the crime scene, that fact
alone did not automatically conclude that he was
guilty of first-degree murder. [Appellant] was tried
with two co-defendants all charged with related
crimes. In addition, a ballistics expert testified at
trial that projectiles removed from the victim’s body
indicated that the gunshot wounds were inflicted
from multiple firearms, none of which matched the
caliber firearm possessed by [Appellant]. (N.T.
1/26/06, pgs. 201-208).
[Appellant] argues that defense counsel had no legal
authority to employ such a strategy. Specifically, [Appellant]
argues that, first, that [sic] the right to effective assistance of
counsel attaches during opening statements as a matter of
constitutional law under the Sixth Amendment, and second, that
by [sic] utilizing this concession of guilt tactic without
[Appellant’s] consent, amounts to per se ineffectiveness of
counsel. It is asserted that because of counsel’s strategy,
[Appellant] “suffered prejudice as a result of trial counsel’s
unilateral concession of guilt.” ([Appellant’s] Supplemental
Amended Petition, 6/20/12).
It is well settled that the law presumes that counsel was
effective at trial and the defendant carries the burden of proving
ineffectiveness. Commonwealth v. Baker, 614 A.2d 663 (Pa.
1992). It is the petitioner who bears the burden of proving that
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(1) the underlying claim has arguable merit, (2) counsel’s
actions or inaction had no reasonable basis, and, most
importantly, (3) the petitioner was prejudiced by the act or
omission to such a degree that but for counsel’s conduct, the
outcome of the proceedings would have been different.
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Strickland v.
Washington, 466 U.S. 668 (1984). If any of these elements are
not satisfied, the claim fails. Commonwealth v. Fulton, 830 A.2d
567 (Pa. 2003). A claim of ineffectiveness of counsel will only be
granted when the petitioner establishes the counsel’s conduct so
undermined the truth determining process that no reliable
verdict could have been rendered. See, 42 Pa.C.S.A. §9543.
In analyzing ineffectiveness claims, the courts today are
guided by Strickland, as well as its companion case, United
States v. Cronic, 466 U.S. 648 (1984) — two United States
Supreme Court (USSC) decisions that require different methods
of analyzing attorney ineffectiveness. In analyzing a claim under
Strickland, the [Appellant] must satisfy each prong of the test,
including the showing of actual prejudice. Conversely, when
analyzing counsel’s alleged ineffectiveness under Cronic, an
analysis is not required, as the prejudice element is already
presumed.6
6
The court in Cronic outlined three specific
circumstances in which prejudice can be assumed:
First, a presumption of prejudice is warranted where
there is a complete denial of counsel during a critical
stage of trial. Second, prejudice is also presumed
where counsel “entirely fails to subject the
prosecution’s case to meaningful adversarial
testing.” Third, in any case where “although counsel
is available to assist the accused during trial, the
likelihood that any lawyer, even a fully competent
one, could provide effective assistance is so small
that a presumption of prejudice is appropriate
without any inquiry.” Under these circumstances,
prejudice need not be proven, as it can be clearly
assumed.
In this case, [Appellant] argues that “Cronic’s per se
prejudice standard applies,” as he asserts that defense counsel’s
actions were blatantly prejudicial under the law.
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In the case of Commonwealth v. Cousin, 888 A.2d 710
(Pa. 2005), the Pennsylvania Supreme Court held that the
attorney’s actions of conceding guilt during closing arguments,
after realizing acquittal of a homicide charge was unrealistic, did
not amount to inefficiency. The court, using the Strickland/Pierce
test, found counsel not ineffective and determined that the
attorneys’ actions did not fall under the Cronic analysis. The
court’s rationale — the Cronic case “is limited to cases []where
the magnitude of counsel’s error is such that the verdict is
almost certain to be unreliable,” and that “attorney’s strategic
decision to concede guilt during his closing argument was
qualitatively different from a complete failure to subject the
state’s case to adversarial testing as contemplated by Cronic.”
Id.
Further, in the USSC opinion of Florida v. Nixon, 543 U.S.
175 (2004), after the trial attorney deposed all the state’s
witnesses and evaluated the evidence in the case, he determined
that the defendant’s guilt was not subject to dispute. Faced with
the inevitability of going to trial, even though his client pled not
guilty, counsel conceded to the defendant’s guilt during his
opening statement. In a unanimous opinion, the Court held that
counsel was not deemed ineffective following a Strickland/Pierce
analysis, as it determined that counsel’s strategy did not
automatically render his performance deficient to trigger a
review under Cronic.7
7
The court determined that “if counsel’s strategy,
given the evidence bearing on the defendant’s guilt,
satisfies the Strickland standard, that is the end of
the matter; no tenable claim of ineffective assistance
would remain.” Nixon at 177.
In the present case, trial counsel, after fully reviewing the
case, determined that knowing the evidence against his client,
there was no possibility of acquittal. Therefore, counsel’s best
strategic defense was to seek a conviction for a lesser offense
than first-degree murder. According to the rationale of the
above-mentioned case law, counsel in the present case cannot
be found per se ineffective under Cronic.
Therefore, counsel’s actions in this case must be analyzed
under the Strickland/Pierce standard; however, [Appellant]
cannot sustain any of these elements. Counsel did have a
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reasonable basis for his strategic decision to concede
[Appellant’s] guilt — the evidence against [Appellant] was
overwhelming: multiple eyewitnesses (one of whom regularly
purchased drugs from [Appellant]) and ballistics evidence placed
[Appellant] at the scene of the crime as the victim was shot
multiple times. As this court noted in its opinion, trial counsel
“made a strategic choice not to attempt to make an absurd
argument that [Appellant] was not present at the crime scene or
that he did not fire a gun that afternoon, given the
overwhelming evidence to the contrary.” (Trial Court Opinion,
pg. 12). Counsel’s strategy was to argue to the jury that
[Appellant] was at the crime scene firing a weapon, but was not
firing at the decedent, and most importantly, according to
ballistics, he did not shoot the deceased. Trial counsel made the
only sensible and reasonable argument according to the facts of
this case. [Appellant] was neither prejudiced nor was he
deprived a fair trial. Additionally, because [Appellant] must
demonstrate actual prejudice, he failed to prove that but for
counsel’s conduct, the outcome of the proceedings would have
been different, as the evidence against [Appellant] was
overwhelming — he was present at the scene of the crime
engaged in criminal activity.[]
[Appellant] also argues that trial counsel made the
strategic decision to concede guilt without his consent.
[Appellant] may not have known exactly how counsel was going
to execute that strategy, but a mutual understanding must be
assumed in that the decision was the best opportunity to obtain
a favorable verdict. Further, if [Appellant] disagreed, objected,
or did not approve of counsel’s strategy, he never voiced any
concern or objection to the court at any time following opening
statements. (N.T. 1/19/06, pg. 105).9 Additionally, the Nixon
court also addressed this issue when it stated that defense
counsel, as a general matter, “has a duty to discuss potential
strategies with the defendant..., but when a defendant, informed
by counsel, neither consents nor objects to the course counsel
describes as the most promising means to avert a sentence of
death, counsel is not automatically barred from pursuing that
course.” Nixon at 178. However, the court in Cousin addressed
that point and held that the rationale in Nixon cannot be read so
narrowly as to only be applicable to capital cases. The court in
Cousin reasoned that the emphasis of Nixon was upon the
difference between a guilty plea and a reasoned strategy of
conceding guilt while still preserving all of the defendant’s other
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rights, rather than on the fact of counsel’s unsuccessful attempts
to elicit a response from his client after formulating his defense
strategy. The court went on to explain that Nixon recognized
that even if counsel concedes guilt during an opening statement,
the prosecution still must present sufficient evidence to support
a verdict of guilt beyond a reasonable doubt in spite of counsel’s
strategy.
9
See, Cousin (defense counsel stated that he never
specifically discussed conceding guilt with the
defendant, although he maintained that he and his
client understood that there was no possibility of an
acquittal. The court, in its rationale stated,
“...whereas here the attorney apparently conceded
guilt only upon the tacit understanding that both he
and his client understood form the state of affairs at
trial and this comprised the best opportunity to
attain a favorable verdict.”) at 722.
In the present case, concerning counsel’s concession of
guilt during opening statements, the actions were sensible and
reasonable under the circumstances and that the decision was
the best opportunity to obtain a favorable verdict in an attempt
to avoid a first-degree murder conviction. See, Commonwealth
v. Colavita, 993 A.2d 874 (Pa. 2010) (it is well established that
“where matters of strategy and tactics are concerned, counsel’s
assistance is deemed constitutionally effective if he chose a
particular course that had some reasonable basis designed to
effectuate his client’s interests”). Counsel’s actions cannot be
deemed per se prejudicial, and therefore cannot be governed by
Cronic. Therefore, counsel’s strategy, under a Strickland
analysis, cannot support a claim of ineffectiveness, as the
strategy was reasonable and [Appellant] has failed to show
exactly how he was prejudiced in that but for counsel’s actions,
the outcome of the trial would have been different. Rather,
[Appellant] has concentrated on various constitutional concerns,
rather than attempting to fulfill each of the prongs of Strickland.
In addition, it is assumed [Appellant] was aware that an
acquittal was unlikely, and if he objected or disagreed with his
attorney’s strategy, he never voiced any objection to this court.
[Appellant] cannot satisfy any claim of attorney error concerning
this issue. For the reasons stated herein, [Appellant’s] claim
should be dismissed.
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PCRA Opinion, 9/18/14, at 3-9 (footnotes and emphases in original)
(footnote 8 omitted). We agree with this analysis. Counsel’s strategy was
wholly reasonable under the circumstances presented here, and Appellant
has failed to prove any of the prongs necessary to establish a claim of
ineffective assistance of counsel.
In his final claim of error, Appellant argues that the PCRA Court erred
in not finding trial counsel ineffective for failing to object to the
Commonwealth’s references to Appellant’s role in selling drugs. We
conclude that no relief is due.
Pursuant to stare decisis and our rules of evidence:
While evidence of prior bad acts is inadmissible to prove the
character of a person in order to show conduct in conformity
therewith, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Commonwealth v. Sherwood,
603 Pa. 92, 982 A.2d 483, 497 (2009); Pa.R.E. 404(b)(2)
(providing that “[e]vidence of other crimes, wrongs, or acts may
be admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident”).
Commonwealth v. Busanet, 54 A.3d 35, 60 (Pa. 2012). Moroever, we
note that counsel cannot be deemed ineffective for failing to present a
meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).
Here the PCRA court addressed Appellant’s argument as follows:
For the reasons mentioned herein, no claim of
ineffectiveness can be sustained, as it would have proven
meritless for defense counsel to object to evidence that was
properly admitted into the record.
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The evidence concerning [Appellant’s] prior drug dealing
activity and his relationships with his co-defendants was highly
relevant in establishing [Appellant’s] motive, intent, and identity
of why he was present at the crime scene firing a weapon.
It has been well established that where such evidence of
prior bad acts or crimes offered for some relevant purpose other
than to show criminal propensity or bas character, such evidence
is admissible. Commonwealth v. Spotz, 756 A.2d 1139 (Pa.
2000). Such evidence can be admitted to show, among other
things, motive, intent, plan, or identity. First, the evidence was
admitted to prove [Appellant’s] identity, as multiple witnesses
testified that they purchased drugs from [Appellant] on multiple
occasions. (N.T. 1/24/06, 139-143; 1/25/06, 86-88). Those
same witnesses identified [Appellant] as a shooter at the scene
of the crime. Second, the evidence was also admitted to
demonstrate [Appellant’s] motive, as [Appellant] was in dispute
with rival drug dealers who were present at the scene of the
crime. It was necessary for the jury to know this background
information, as it was the basis and backdrop for the events that
transpired at the scene of the crime.
Therefore, no claim of ineffectiveness can be sustained —
if counsel had objected to the admission of this relevant and
properly admitted evidence, the objection would have been
overruled. As the evidence was properly introduced at trial, it
was therefore proper for the Commonwealth to utilize that
evidence during opening statements. In analyzing this claim
under Pierce /Strickland, counsel cannot be deemed ineffective
as his failure to object was reasonable under the circumstances,
and because [Appellant] cannot demonstrate that but for
counsel’s conduct, the outcome of the proceedings would have
been different.10 Counsel cannot be deemed ineffective for failing
to raise a meritless claim. Commonwealth v. Monaco, 869 A.2d
1026 (Pa. Super. 2005).
10
In addition, this court instructed the jury on how
to specifically and properly use the evidence of prior
criminal acts. (N.T. 1/23/06, pgs. 119-120; 2/1/06,
pgs. 33-34). The law presumes that the jury follows
the instructions of the court. Commonwealth v.
Chmiel, 889 A.2d 501 (Pa. 2005).
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PCRA Opinion, 9/18/14, at 10-11 (footnote in original). We agree with the
PCRA court and conclude that this issue is meritless. References to
Appellant’s illicit drug activity were relevant and necessary to prove
Appellant’s motive, intent, identity, and absence of mistake.
For the reasons set forth above, we discern no error of law or abuse of
discretion in the PCRA court’s decision. Accordingly, we affirm the order
denying Appellant’s petition for collateral relief.
Order affirmed.
Judge Mundy joins this Memorandum.
Justice Fitzgerald Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2016
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