Commonwealth v. Faurelus

J-S56043-16

2016 PA Super 196

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOSUE FAURELUS,

Appellant No. 1236 MDA 2015

Appeal from the Order Entered June 9, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0004602-2008

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED AUGUST 31, 2016

Appellant Josue Faurelus appeals from the order of the Honorable

David W. Lupas of the Court of Common Pleas of Luzerne County denying

Appellant’s petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§

9541-9546. Petitioner raises several claims of ineffectiveness of counsel.

After careful review, we affirm.

Appellant was charged with criminal homicide (18 Pa.C.S. § 2501) and

possession of a firearm prohibited (18 Pa.C.S. § 6105(a)(1)) in connection

with October 20, 2008 shooting death of Christly Aristide (“the victim”). On

that day, Jose Cruz agreed to drive Tabitha Bidgood and her friend,

Appellant, to a home on High Street in Wilkes-Barre, Pennsylvania. Bidgood

and Cruz stayed in the car while Appellant entered the home. Shortly

thereafter, the victim exited the house and ran up the street. Appellant then

left the home and jumped into Cruz’s car. Cruz noticed Appellant’s lip was

*Former Justice specially assigned to the Superior Court.
J-S56043-16

bleeding. Appellant indicated that his friend had punched him and swore he

was “going to get this nigger.” Notes of Testimony (N.T.) Trial, 10/14/09 -

10/20/09, at 101, 409.

Once Cruz began driving, Appellant spotted the victim two blocks

away. Appellant yelled for Cruz to stop the vehicle, got out, and ran behind

the vehicle towards the victim. Bidgood heard Appellant say to the victim,

“What now, pussy?” N.T. Trial at 411. Both Bidgood and Cruz heard

gunshots. Cruz looked back and saw “a young guy on the floor” and claimed

that he observed “someone getting beaten with something.” N.T. Trial at

103. Appellant jumped back in the vehicle and told Cruz and Bidgood, “you

guys didn’t see nothing.” N.T. Trial at 104. Appellant wiped the gun off,

handed it to Bidgood, ordered her to get out of the car, and demanded that

Cruz continue to drive.

Complying with Appellant’s orders, Cruz observed an unmarked police

car while stopped at a traffic light. Cruz waited at the light after it turned

green, hoping the officer would initiate a traffic stop. Police subsequently

detained Cruz’s vehicle and arrested Appellant. Despite Appellant’s attempts

to remove gunpowder residue from his person, the police discovered

gunpowder residue on Appellant’s hands and clothing.

Police responded to the scene and found the victim with a head wound

and two gunshot wounds, one of which was to the victim’s back. Officers

spoke to eyewitnesses who observed the victim being beaten while he lay on

the ground dying. The victim was found in possession of $1,373 in cash.

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Through a tip from an informant, the officers also recovered the firearm

used in the shooting from one of Appellant’s associates.

Charged with the aforementioned offenses, Appellant filed several

pretrial motions, including a motion to suppress a letter delivered to the

prosecutor’s office on November 21, 2008. On that date, an unidentified

man gave a sealed letter addressed to the Luzerne County District Attorney

to the office’s receptionist, who in turn handed it to Assistant District

Attorney Jeffrey Tokash. ADA Tokash opened the sealed envelope and

discovered a second, previously opened envelope addressed to Appellant’s

girlfriend, Nicole Wenrich, from Appellant, who listed the county jail as the

return address. This envelope contained a letter in which Appellant directed

Wenrich to convince certain witnesses to provide false testimony.

After a hearing, the suppression court denied Appellant’s motion,

rejecting his argument that the Commonwealth violated a constitutionally

protected privacy interest in the letter by reading the letter without first

obtaining a warrant. Since the envelope Appellant sent to his girlfriend was

already opened when delivered to the prosecutor’s office, the suppression

court reasoned that any alleged search of the letter was performed by a

private party who was not acting as an agent of the Commonwealth or with

the knowledge of a Commonwealth official. See Commonwealth v.

Harris, 572 Pa. 489, 513, 817 A.2d 1033, 1047 (2002) (stating “[t]he

proscriptions of the Fourth Amendment and Article I, § 8, do not apply to

searches and seizures conducted by private individuals”) (citations omitted).

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Even assuming Appellant had a constitutional right to privacy in the letter, 1

the suppression court found the Commonwealth’s viewing of the letter did

not exceed the scope of the private search. See id. at 515, 817 A.2d at

1048 (indicating that “additional invasions of privacy by [] government

agent[s] following a private search must be tested by the degree to which

they exceeded the scope of the private search”) (citation omitted).

On October 14-20, 2009, the trial court conducted a jury trial on the

homicide charge.2 As Appellant conceded he shot the victim, most of the

Commonwealth’s evidence was uncontested. Appellant’s intent and state of

mind at the time of the shooting were the disputed issues at trial. In

support of its theory that Appellant intended to kill the victim, the

Commonwealth called several eyewitnesses who testified that Appellant beat

the victim while he lay dying. In addition, the Commonwealth’s expert

witness indicated Appellant shot the victim in the back. The Commonwealth

also presented evidence that Appellant attempted to cover up the crime by

discarding the murder weapon, trying to remove gunpowder residue from his

body, and intimidating witnesses to influence their testimony.
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1
This Court pointed out on direct appeal that an inmate generally has no
constitutional right to privacy in his non-privileged prison mail.
Commonwealth v. Faurelus, No. 459 MDA 2010, unpublished
memorandum at 7 (Pa.Super. filed September 28, 2011) (citing
Commonwealth v. Moore, 928 A.2d 1092, 1102 (Pa.Super. 2007)).
2
Upon motion of the Commonwealth, the trial court severed the charge for
illegally possessing a firearm from the homicide charge.

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Appellant testified in his own behalf, admitting to shooting the victim,

but claiming he did so in self-defense. In giving his account of the events of

October 20, 2008, Appellant alleged that after encountering the victim in the

home on High Street, the victim punched Appellant, stole Appellant’s money,

and ran from the home. Further, Appellant claimed that, when the men met

again in the street, the victim pulled a gun on Appellant. Appellant

explained that when he reached to grab the gun from the victim, it went off,

causing him to panic and run away without retrieving his money. The

defense also presented the testimony of Appellant’s sister, Nahomie

Faurelus, who claimed that she had given Appellant $1,500 in cash before

the shooting to pay Appellant’s rent and medical bills and partly as a gift for

Appellant’s son’s birthday.

At the conclusion of the trial, the jury convicted Appellant of third-

degree murder.3 On February 23, 2010, the trial court sentenced Appellant

to twenty to forty years incarceration. Appellant filed a timely appeal. On

September 28, 2011, this Court affirmed Appellant’s judgment of sentence.

On April 12, 2012, our Supreme Court denied Appellant’s Petition for

Allowance of Appeal.

____________________________________________

3
Appellant pled guilty to the charge of possessing a firearm prohibited and
was sentenced on a separate docket.

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On December 10, 2012, Appellant filed a timely pro se PCRA petition.4

The PCRA court appointed counsel to represent Appellant, held a hearing on

his petition on May 27, 2015, and entered an order on June 9, 2013 denying

the petition. This timely appeal followed. Appellant complied with the PCRA

court’s direction to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues for our review on appeal:

A. Whether Appellate Counsel was ineffective in failing to
properly raise the issue of whether the evidence was
sufficient to establish malice in that the Commonwealth,
rather than [Appellant] had the burden to prove [Appellant]
did not act in the heat of passion?

B. Whether first Appellate Counsel was ineffective in failing to
properly raise the issue of insufficiency of the
Commonwealth’s evidence in disproving his claim of self-
defense in the 1925(b) Statement and whether Second
Appellate Counsel was ineffective in failing to ask the Superior
Court to remand the case back to supplement the 1925(b)
statement?

C. Whether Trial Counsel was ineffective for failing to object to
hearsay testimony of Assistant District Attorney Jeffrey
Tokash during the Suppression Hearing?

D. Whether Trial Counsel was ineffective for failing to object
and/or request a complete and adequate reinstruction of
malice when the jury requested the definition of malice to be
re-read to them during deliberation?

____________________________________________

4
See 42 Pa.C.S. § 9545(b)(1) (“Any petition under this subchapter,
including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final....”).

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E. Whether Trial Counsel was ineffective for failing to object to
improper jury instructions given by the Court regarding the
crime of voluntary manslaughter?

F. Whether Trial Counsel was ineffective in failing to object to
prejudicial and improper statements made by the
Commonwealth during the Commonwealth’s closing
argument?

Appellant’s Brief, at 4 (reordered for review).

Our standard of review for the denial of a PCRA petition is as follows:

The standard of review for an order denying post-conviction
relief is limited to whether the record supports the PCRA court's
determination, and whether that decision 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. Walters, 135 A.3d 589, 591 (Pa.Super. 2016). In

order to be eligible for PCRA relief, the petitioner must prove by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated circumstances found in Section 9543(a)(2),

which includes the ineffective assistance of counsel. 42 Pa.C.S. §

9543(a)(2)(i).

“It is well-established that counsel is presumed effective, and to rebut

that presumption, the PCRA petitioner must demonstrate that counsel's

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

Strickland v. Washington, 466 U.S. 688, 687-91, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984)). To prevail on an ineffectiveness claim, the petitioner

has the burden to prove that “(1) the underlying substantive claim has

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arguable merit; (2) counsel whose effectiveness is being challenged did not

have a reasonable basis for his or her actions or failure to act; and (3) the

petitioner suffered prejudice as a result of counsel's deficient performance.”

Commonwealth v. Sneed, 616 Pa. 1, 18, 45 A.3d 1096, 1106 (2012)

(quoting Commonwealth v. Pierce, 567 Pa. 186, 203, 786 A.2d 203, 213

(2001)). “A petitioner establishes prejudice when he demonstrates “that

there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.”

Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966 A.2d 523, 532–33

(2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d

674). The failure to satisfy any one of the three prongs will cause the entire

claim to fail. Sneed, 616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

First, Appellant contends appellate counsel was ineffective in failing to

properly raise a challenge to the sufficiency of the evidence supporting his

third-degree murder conviction. Appellant claims counsel should have

argued that the burden of proof was improperly shifted to Appellant to prove

he did not act with malice, but instead acted in the heat of passion to

warrant a conviction on the lesser offense of voluntary manslaughter.

Although the issue statement is styled as a sufficiency claim, Appellant

seems to argue in his brief that trial counsel should have asked the trial

court to instruct the jury that the Commonwealth had the burden of

disproving that Appellant acted in the heat of passion. However, the trial

court did instruct the jury that the Commonwealth had the burden of proof

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and indicated that if they believed Appellant acted in the heat of passion,

this finding would eliminate the element of malice. Specifically, the trial

court stated that the jury “could find malice and murder only if you are

satisfied beyond a reasonable doubt that [Appellant] was not acting under a

sudden and intense passion resulting from serious provocation by [the

victim].” N.T. Trial at 797.5

In addition, Appellant suggests trial counsel should have not allowed

the trial court to instruct the jury that both specific intent and malice may be

proven by the use of a deadly weapon to a vital part of the victim’s body.

However, our Supreme Court has emphasized that “the finder of fact may

infer malice and specific intent to kill based on the defendant's use of a

deadly weapon on a vital part of the victim's body.” Commonwealth v.

Hitcho, ___Pa.___, 123 A.3d 731, 746 (2015) (citing Commonwealth v.

Arrington, 624 Pa. 506, 86 A.3d 831, 840 (2014), cert. denied, ___U.S.

___, 135 S.Ct. 479, 190 L.Ed.2d 363 (2014)). The trial court did not shift

the burden of proof to Appellant, but found it reasonable for the jury to infer

Appellant’s malice as he admittedly shot the victim in the abdomen and

back, where the bullets punctured several of the victim’s vital organs. N.T.

Trial at 489-91.

____________________________________________

5
Appellant does not claim that defense counsel were ineffective in deciding
not to pursue an argument that he acted in the heat of passion.

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While Appellant argues that trial counsel should have asked the trial

court for a specifically worded jury instruction, he does not show actual

prejudice as he failed to show there is a reasonable probability that the

outcome of his trial would have been more favorable to him had counsel

objected to the trial court’s instruction. See Commonwealth v. Spotz, 624

Pa. 4, 47-48, 84 A.3d 294, 320 (2014) (“to establish prejudice from trial

counsel's failure to object to the challenged portion of the [jury] charge, [the

petitioner] must show there is a reasonable probability that, but for

counsel's error or omission, the result of the proceeding would have been

different”). We thus conclude that the PCRA court correctly dismissed this

claim of ineffectiveness.

Second, Appellant claims that his first appellate counsel, Atty. Matthew

Kelly, was ineffective in failing to properly raise in his 1925(b) statement the

issue of insufficiency of the evidence in disproving his claim of self-defense.

Appellant also contends that his second appellate counsel, Demetrius

Fannick, was ineffective in failing to ask the Superior Court to remand the

case back to supplement the 1925(b) statement to add this issue.

At the PCRA hearing, Atty. Kelly and Atty. Fannick testified that they

discussed the prospects of this appeal before filing Appellant’s 1925(b)

statement and chose not to include a sufficiency challenge because they

believed it was not a strong argument. Atty. Fannick admitted that he had

included a sufficiency claim regarding the malice element (an issue that had

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not been preserved in the 1925(b) statement) in his appellate brief only to

satisfy Appellant who was adamant that it be raised on appeal.

We agree that defense counsel had a strategic basis for not raising a

weak sufficiency claim to focus on other issues that they believed had

arguable merit. The Commonwealth presented ample evidence to show that

Appellant did not act in self-defense. After encountering the victim at the

home on High Street, Appellant told Cruz and Bidgood that he would “get”

the victim. N.T. Trial at 101, 409. When he encountered the victim a few

blocks away, he initiated contact and taunted the victim, yelling, “What now,

pussy?” N.T. Trial at 411. Appellant shot the victim and was observed

beating the victim as he lay on the ground dying. Moreover, Appellant tried

to cover up his involvement in the shooting by getting rid of the murder

weapon, ordering witnesses not to testify, and trying to eliminate gunpowder

residue from his clothing and body. As a result, we conclude that defense

counsel had a reasonable basis for choosing not to raise this issue on appeal

and thus were not ineffective.

Third, Appellant claims trial counsel was ineffective for failing to object

to hearsay testimony of Assistant District Attorney Jeffrey Tokash during the

Suppression Hearing. Appellant takes issue with the fact that the trial court

allowed ADA Tokash to testify that the receptionist of the prosecutor’s office

told him that an unidentified male dropped off the letter addressed to the

district attorney’s office. Appellant claims that he suffered significant

prejudice when the Commonwealth was allowed to admit this letter, which

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Appellant wrote to his girlfriend in an attempt to dissuade witnesses from

testifying or in influencing their testimony.

The PCRA court rejected Appellant’s argument as it found that trial

counsel had a strategic basis for refraining from objecting to ADA Tokash’s

testimony. Atty. Fannick testified at the PCRA hearing that he wished to

focus on his theory that the Commonwealth had violated Appellant’s right to

privacy in reading the letter without the permission of Appellant or the

letter’s intended recipient. On direct appeal, Appellant had argued there was

no evidence to establish that anyone other than the district attorney or the

police had viewed the letter and thus, contended that there was a

governmental intrusion of privacy which exceeded that of any private party.

Regardless of whether the PCRA court properly admitted ADA Tokash’s

testimony, we find that Appellant has not shown he was prejudiced by the

entry of this additional evidence that Appellant attempted to influence

witness testimony before his trial. Appellant’s girlfriend, Nicole Wenrich,

testified at trial that Appellant would call her and send her letters from

prison asking her to contact Cruz and Bidgood to influence their testimony.

Both Jose Cruz and Tabitha Bidgood testified that either Appellant himself or

Appellant’s associates approached them and asked them not to testify or to

testify in favor of Appellant. Wenrich also shared that Appellant asked her to

research how to eliminate gunshot residue from clothing. The actual letter

from Appellant to Wenrich was merely cumulative evidence corroborating

the aforementioned testimony that Appellant attempted to cover up his role

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in the shooting. As a result, we find the PCRA court did not err in dismissing

this ineffectiveness claim.

Fourth, Appellant contends that trial counsel was ineffective for failing

to object and/or request a complete and adequate reinstruction of malice

when the jury requested the definition of malice to be re-read to them

during deliberation. However, after reviewing the record, we note that the

trial court fully accommodated the jury’s request by thoroughly explaining

the concept of malice and the differences between first and third degree

murder. N.T. Trial at 814-18. As such, there was no reason for counsel to

object or request a different instruction. Thus, we find this claim to be

without merit.

Fifth, Appellant argues that trial counsel was ineffective for failing to

object to the trial court’s jury instruction regarding the voluntary

manslaughter charge, asserting that the jury was misled into believing they

could not convict Appellant of the lesser offense of voluntary manslaughter

unless they found Appellant had specific intent to kill the victim. Appellant

contends that trial counsel should have asked the trial court to include in this

instruction that the jury could find Appellant had intent to kill or seriously

injure the victim in convicting him of voluntary manslaughter. Appellant

cites Commonwealth v. Moore, 398 Pa. 198, 202, 157 A.2d 65, 68 n. 2

(1959), for the principle that “where there is a nonmalicious felonious killing

with a specific intent either to kill or to seriously injure, it is voluntary

manslaughter.” Id.

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With respect to jury instruction challenges, our Supreme Court has

held the following:

When reviewing a challenge to jury instructions, the reviewing
court must consider the charge as a whole to determine if the
charge was inadequate, erroneous, or prejudicial. The trial court
has broad discretion in phrasing its instructions, and may choose
its own wording so long as the law is clearly, adequately, and
accurately presented to the jury for its consideration. A new
trial is required on account of an erroneous jury instruction only
if the instruction under review contained fundamental error,
misled, or confused the jury.

Commonwealth v. Fletcher, 604 Pa. 493, 546, 986 A.2d 759, 792 (2009)

(internal citations and quotations omitted).

Regardless of whether the trial court’s instruction was proper,6

Appellant has not shown any prejudice in counsel’s decision not to object as

the record contains overwhelming evidence of Appellant’s intent to kill the

victim. Appellant fired his weapon at the victim several times, hitting

several of the victim’s vital body parts and piercing several of his vital

organs. The jury was free to infer from Appellant’s conduct in using a

deadly weapon on the victim’s vital body parts that Appellant intended to kill

the victim. See Hitcho, supra. The Commonwealth also presented

testimony of eyewitnesses that observed Appellant subsequently beating the

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6
We note that the Supreme Court has provided that “[v]oluntary
manslaughter, imperfect self-defense, requires that the Commonwealth
establish that the defendant ‘intentionally and knowingly’ killed another.”
Commonwealth v. Weston, 561 Pa. 199, 207, 749 A.2d 458, 462 (2000)
(quoting 18 Pa.C.S. § 2503(b)).

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victim as he lay dying from the gunshot wounds Appellant inflicted.

Appellant has not shown it is probable that, but for counsel's failure to object

to the instruction, the result of the proceeding would have been different.

See Johnson, supra. This lack of prejudice leads us to conclude that the

PCRA court did not err in denying this ineffectiveness claim.

Lastly, Appellant claims trial counsel was ineffective in failing to object

to a statement the prosecutor made in closing argument. In reviewing the

denial of a motion for a mistrial, we evaluate whether the trial court abused

its discretion. Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa. Super.

2015). More specifically, this Court has provided the following standards for

reviewing a claim of prosecutorial misconduct in a closing statement:

it is well settled that any challenged prosecutorial comment must
not be viewed in isolation, but rather must be considered in the
context in which it was offered. Commonwealth v. Correa,
444 Pa.Super. 621, 664 A.2d 607 (1995). Our review of a
prosecutor's comment and an allegation of prosecutorial
misconduct requires us to evaluate whether a defendant
received a fair trial, not a perfect trial. Commonwealth v.
Rios, 554 Pa. 419, 721 A.2d 1049 (1998). Thus, it is well
settled that statements made by the prosecutor to the jury
during closing argument will not form the basis for granting a
new trial “unless the unavoidable effect of such comments would
be to prejudice the jury, forming in their minds fixed bias and
hostility toward the defendant so they could not weigh the
evidence objectively and render a true verdict.”
Commonwealth v. Fletcher, 580 Pa. 403, 434–35, 861 A.2d
898, 916 (2004) (quotation and quotation marks omitted). The
appellate courts have recognized that not every unwise remark
by an attorney amounts to misconduct or warrants the grant of a
new trial. Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d
28 (1991). Additionally, like the defense, the prosecution is
accorded reasonable latitude, may employ oratorical flair in
arguing its version of the case to the jury, and may advance

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arguments supported by the evidence or use inferences that can
reasonably be derived therefrom. Commonwealth v. Carson,
590 Pa. 501, 913 A.2d 220 (2006); Commonwealth v. Holley,
945 A.2d 241 (Pa.Super. 2008). Moreover, the prosecutor is
permitted to fairly respond to points made in the defense's
closing, and therefore, a proper examination of a prosecutor's
comments in closing requires review of the arguments advanced
by the defense in summation. Commonwealth v. Chmiel, 585
Pa. 547, 889 A.2d 501 (2005).

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016).

Appellant specifically takes issue with the prosecutor’s statement

highlighting the fact that Appellant did not have any cuts on his hands after

he allegedly attempted to grab the gun from the victim. The prosecutor

pointed to the firearm, stating “the slide – if your hand was in the position

that [Appellant] said it was, the slide would cut [Appellant’s] hand. You

heard the evidence that there were no cuts on his hand, no defensive

wounds, nothing like that.” N.T. Trial, at 757-58. Appellant argues that trial

counsel should have objected since the Commonwealth did not present

expert testimony to show that Appellant would have cut his hand.

In response, the Commonwealth claims the prosecutor’s comment was

a reasonable inference supported by the record and showed discrepancies in

Appellant’s account of the shooting. Moreover, Appellant’s trial counsel

agreed that the prosecutor’s remark was a fair response to trial counsel’s

own suggestion in his closing statement that Appellant’s lack of cuts on his

hands showed Appellant did not beat the victim as he lay dying. N.T. Trial

at 716; N.T. PCRA Hr’g, 5/27/15, at 104-105.

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After viewing the prosecutor’s comment in context of the summation

of both parties, we agree that the Commonwealth was entitled a degree of

latitude to respond to the defense’s argument that Appellant’s lack of

injuries was circumstantial evidence that he did not physically attack the

victim. Moreover, even assuming the prosecutor’s remark was unwise, it

was not so prejudicial as to prevent the jury from weighing the evidence

objectively and rendering a true verdict. Although defense counsel did not

object to the comment, any prejudice that the comment caused was cured

by the trial court’s instruction that counsel’s arguments are not evidence and

should not be considered as evidence. See Commonwealth v. Thompson,

660 A.2d 68, 76 (Pa. Super. 1995). A jury is presumed to follow a trial

court’s instructions. Id. Accordingly, we reject Appellant’s claim that trial

counsel was ineffective in failing to object to the prosecutor’s closing

statement.

For the foregoing reasons, we affirm the PCRA court’s order denying

Appellant’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2016

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