J-S25029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTOINE DAVIS
Appellant No. 300 EDA 2016
Appeal from the PCRA Order January 22, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006327-2007
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY RANSOM, J.: FILED MAY 26, 2017
Appellant, Antoine Davis, appeals from the order entered January 22,
2016, denying his petition for collateral relief filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In December 2006, Appellant was arrested in connection with the
strangling death of the victim, L.P., with whom he had a romantic
relationship.1 See PCRA Court Opinion (PCO), 8/26/16, at 1-3. Prior to and
during trial, the parties litigated a number of evidentiary issues on which the
court ruled throughout the proceedings.
On May 13, 2009, Appellant filed an omnibus pretrial motion seeking,
among other things, to present evidence that Johnathan Anderson, L.P.’s
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1
Due to the nature of the crime, we will use the victim’s initials.
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former boyfriend, had abused her. See Omnibus Motion, 5/13/09, at ¶¶ 24-
28. The evidence Appellant sought to admit was 1) a Protection From Abuse
Act petition (“PFA”), and 2) testimony from L.P.’s niece that Mr. Anderson
had previously strangled L.P. Id.
Prior to trial on November 9, 2009, counsel made an oral a motion in
limine, seeking to admit the evidence above. See Notes of Testimony
(N.T.), 11/9/09, at 8-9. Specifically, counsel sought to admit PFA petitions
that L.P. had filed against Mr. Anderson in 2004 or 2005, and a statement
L.P.’s niece had given to police that Mr. Anderson had once strangled L.P. to
the point of unconsciousness. See N.T., 11/9/09, at 9. The trial court
denied admission of the PFA as hearsay, but held that it would permit L.P.’s
niece to testify that L.P. and Mr. Anderson had argued over child custody if
she had heard the argument herself. Id. at 19-20; see also Docket No. CP-
51-CR-00062327-2007, 11/09/09. The information regarding the argument
was later elicited on cross-examination. See N.T., 11/10/09, at 109-10.
The next day, counsel provided the court with a report compiled by a
private investigator; however, upon review, the report indicated only that
L.P. had told Jerome Brown, Catherine Jackson, and Jennifer Cabezudo that
Mr. Anderson had abused her. See N.T., 11/10/09, at 3-20. The court
denied admission of the report as none of the proposed witnesses had
actually seen Mr. Anderson abuse L.P. To resolve the ongoing evidentiary
dispute, the prosecutor proposed a stipulation: she would stipulate that
L.P.’s niece had overheard L.P.’s argument with Anderson, and defense
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counsel would stipulate to the excited utterance by L.P. where she stated
that Appellant had choked her. Id. at 11-17. After considering, defense
counsel declined the stipulation and as noted, supra, later elicited testimony
regarding the argument on cross examination. Id. at 11-17, 109-10.
The matter proceeded to trial. In November 2009, a jury convicted
Appellant of third degree murder.2 In January 2010, Appellant was
sentenced to fifteen to thirty years of incarceration. Appellant filed a post-
sentence motion, which was denied. His judgment of sentence was affirmed
on appeal. See Commonwealth v. Davis, 37 A.3d 1242 (Pa. Super. 2011)
(unpublished memorandum). Appellant did not seek review with the
Pennsylvania Supreme Court.
On October 19, 2012, Appellant pro se timely filed a PCRA petition.
Counsel was appointed and filed an amended petition and supplemental
amended petition on Appellant’s behalf. In December 2015, the court sent
Appellant notice pursuant to Pa.R.Crim.P. 907 that his petition would be
dismissed without a hearing. The court formally dismissed Appellant’s
petition on January 22, 2016.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA
court issued a responsive opinion.
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2
See 18 Pa.C.S. § 2502(c).
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On appeal, Appellant raises the following issues for our review.
A. Is Appellant entitled to post conviction relief in the form of the
grant of a new trial or a remand for an evidentiary hearing
since trial counsel rendered ineffective assistance of counsel
when she failed to present the stipulation concerning
Jonathan Anderson’s abuse of the victim and failed to make
an appropriate proffer with regard to other evidence
establishing Anderson’s abuse of the victim. Alternatively,
were post-sentence motion counsel and direct appeal counsel
ineffective when they failed to raise the issue of the trial
court’s denial of Appellant’s motion to admit evidence of
Anderson’s abuse of the victim at trial in the post-sentence
motion or in the direct appeal?
B. Is Appellant entitled to post conviction relief in the form of the
grant of a new trial or a remand for an evidentiary hearing
since trial counsel rendered ineffective assistance of counsel
when she failed to request the trial court to instruct the jury
concerning heat of passion voluntary manslaughter?
Appellant’s Brief at 4.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
In this case, the PCRA court dismissed Appellant’s petition without a
hearing. See PCRA Court Order, 1/22/16 (citing in support Pa.R.Crim.P.
907). There is no absolute right to an evidentiary hearing. See
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On
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appeal, we examine the issues raised in light of the record “to determine
whether the PCRA court erred in concluding that there were no genuine
issues of material fact and denying relief without an evidentiary hearing.”
Springer, 961 A.2d at 1264.
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) that counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “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. Id. A claim
will be denied if the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
Appellant claims trial counsel rendered ineffective assistance when she
failed to present evidence that Jonathan Anderson had abused L.P. prior to
her death. See Appellant’s Brief at 26. Appellant raises a litany of
arguments that trial counsel failed to make an appropriate proffer with
regard to other evidence that would have established abuse, namely, 1) the
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stipulation; 2) PFA petitions; 3) Mr. Anderson’s court documents and
criminal history; and 4) investigative reports prepared by a private
investigator. Id. at 26-27. Appellant contends that this evidence would
have bolstered his argument that Mr. Anderson was the killer. Id. In the
alternative, Appellant claims post-sentence motion counsel and direct appeal
counsel were ineffective for their failure to raise the issue the trial court’s
evidentiary rulings. Id.
First, Appellant avers counsel was ineffective for failure to present to
the court the stipulation proposed by the Commonwealth. See Appellant’s
Brief at 26-41. In fifteen pages of his brief, Appellant fails to present a
coherent argument on this point. As noted supra, the proposed stipulation
was to two pieces of information, 1) L.P.’s niece overheard L.P. and Mr.
Anderson arguing about the custody of their child, and 2) prior to L.P.’s
death, Appellant had choked L.P. Here, counsel declined to accept the
stipulation.3 However, counsel cross-examined L.P.’s niece regarding the
argument. See N.T., 11/10/09, 109-10. The stipulation itself was a nullity,
as the proffered evidence was admitted regardless of said stipulation. Thus,
Appellant cannot show he was prejudiced by counsel’s failure to present the
stipulation. See Johnson, 966 A.2d at 533 (Pa. 2009) (noting that a
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3
We note that prior to trial, the Commonwealth filed a prior bad acts motion
pursuant to Pa.R.E. 404(b), and accordingly, was allowed to introduce
evidence of the choking. See Davis, 37 A.3d 1242, at * 19. This Court
upheld that admission on direct appeal. Id. at 19-20.
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petitioner establishes prejudice when he demonstrates a reasonable
probability that but for counsel’s errors the result of the proceeding would be
different).
Second, Appellant avers counsel was ineffective for failing to present
PFA petitions filed by L.P. against Mr. Anderson. See Appellant’s Brief at 28-
29. The PCRA court noted that the trial court ruled that the proffered
evidence was inadmissible and counsel cannot be ineffective for failure to
enter inadmissible evidence into the record. See PCO at 9; see also
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (noting that
counsel cannot be ineffective for failure to raise a meritless claim). We see
no error in this conclusion. Appellant now contends that the PFA petitions
should have been admissible under various hearsay exceptions, but fails to
address any law concerning hearsay and its exceptions beyond a bare
citation to the rules of evidence themselves. Accordingly, Appellant has
waived this argument for purposes of appeal. See Pa.R.A.P. 2119(a)-(c);
see also Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012)
(“[T]he argument portion of an appellate brief must be developed with a
pertinent discussion of the point which includes citations to the relevant
authority.”).
Third, Appellant argues counsel was ineffective for failure to introduce
Mr. Anderson’s criminal record and court documents. See Appellant’s Brief
at 26-29. The dockets in question reveal that 1) Mr. Anderson was
convicted of misdemeanor offenses involving the victim two years before her
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death in Philadelphia, and 2) that Mr. Anderson was convicted of simple
assault and resisting arrest in Delaware County in 2002, without any
indication that the victim was involved.4
Evidence must be relevant to be admissible, and its probative value
must outweigh its potential prejudicial effect. See Commonwealth v.
Impellizzeri, 661 A.2d 422, 428 (Pa. Super. 1995). Relevant evidence is
that which tends to establish the facts in issue or in some degree advances
the inquiry, and is therefore probative. Id. The probative value of the
evidence must outweigh its potential prejudicial impact. Id. Here, the
evidence Appellant argues was admissible is simply not probative of the
theory he wishes to advance. Mr. Anderson’s prior convictions do not make
it more likely that he murdered L.P., and Appellant’s arguments to the
contrary strain credulity.5 Therefore, counsel could not be ineffective for
failing to offer evidence which was irrelevant.
Additionally, Appellant argues counsel was ineffective for failure to
present an investigative report prepared by a private investigator. Counsel
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4
The dockets in question are attached to Appellant’s PCRA petition, which
does not utilize page numbers.
5
For example, Appellant argues that the arrest record “would have
corroborated” the testimony of a neighbor, who remembered hearing noises
coming from L.P.’s house early on November 23, 2006, which was
approximately two days after Appellant stated he last saw her. See
Appellant’s Brief at 39. Appellant argues that the victim was killed after
Appellant left the residence, and that that person was “presumably
Anderson.” Id.
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presented the report at trial. Upon review, the court ruled that the report
constituted hearsay, as the witnesses interviewed would only testify to what
L.P. had told them. See Appellant’s Brief at 29-30; see also N.T.,
11/10/09, at 3-13. An examination of the report provided in Appellant’s own
brief confirms this ruling was not in error. In the report, the witnesses
interviewed by the investigator stated they observed injuries to L.P.’s body,
but the sole evidence regarding the manner in which L.P. was injured
constituted hearsay. See Appellant’s Brief at 29-30. Trial counsel was not
ineffective for failing to convince the trial court that this report did not
consist of hearsay. Further, the issue of the trial court’s evidentiary ruling is
more properly raised on direct appeal. See 42 Pa.C.S. § 9544(b).
Next, Appellant claims that post-sentence motion counsel and
appellate counsel rendered ineffective assistance for failure to raise the issue
of the court’s evidentiary rulings. See Appellant’s Brief at 36-37, 39-40. As
noted above, the trial court’s rulings were proper. Counsel cannot be
ineffective for failure to raise a meritless claim. Fears, 86 A.3d at 804.
Finally, Appellant claims that trial counsel rendered ineffective
assistance of counsel when she failed to request a jury charge for heat of
passion voluntary manslaughter. See Appellant’s Brief at 42. Appellant
argues that because he informed homicide detectives that L.P. “had kicked
him in his ‘privates’” during a fight, the evidence supported such a charge.
Id. at 43. Appellant argues he was prejudiced because the jury could not
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consider this as a mitigating factor, and only focused on his own actions.
Id.
A person is guilty of voluntary manslaughter if at the time of the killing
he acted under a sudden and intense passion resulting from serious
provocation by the victim. See Commonwealth v. Browdie, 671 A.2d
668, 671 (Pa. 1996); see also 18 Pa.C.S. § 2503(a). “Heat of passion”
includes emotions such as anger, rage, sudden resentment or terror, which
renders the mind incapable of reason. Id. A defendant is not entitled to a
voluntary manslaughter charge where the evidence does not support it. Id.
Further, and more importantly, as the PCRA court noted:
Such an instruction requires that defendant admit to the killing.
See Commonwealth v. Sanchez, 623 Pa. 253, 315, 82 A.3d
943, 980 (Pa. 2013) (noting that the Supreme Court has “long
held that no jury charge is required on the elements of voluntary
manslaughter where the defendant denies having committed the
killing”). However, the defendant contended at trial that he was
not the killer.
See PCO at 9. We find no error in this conclusion. Accordingly, Appellant’s
underlying issue is not of arguable merit. See Sanchez, 82 A.3d at 980;
Johnson, 966 A.2d at 533. Counsel cannot be ineffective for failure to raise
a meritless claim, and Appellant is not entitled to a new trial or evidentiary
hearing on this issue. Fears, 86 A.3d at 804.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
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Com. v. Davis, A.
Combined Opinion