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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEVIN SOUFFRANT
Appellant No. 217 MDA 2017
Appeal from the PCRA Order January 10, 2017
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002313-2013, CP-36-CR-0002314-
2013
BEFORE: DUBOW, RANSOM, and STRASSBURGER, JJ.*
MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 15, 2017
Appellant, Kevin Souffrant, appeals from the order entered January 10,
2017, denying his petition for collateral relief filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the facts of this matter as
follows:
On March 9, 2013, officers from the Lancaster City Bureau of
Police responded to a report of shots fired at 1117 Wabank
Street, apartment C-304, in Lancaster County, Pennsylvania.
Upon arrival, officers located inside the apartment a deceased
female, Shadae Brooks, who had suffered multiple gunshot
wounds, and additionally found Appellant in the vestibule outside
of the apartment, also suffering from multiple gunshot wounds.
Their investigation led police officers to interview Leonda
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*
Retired Senior Judge assigned to the Superior Court.
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Washington and Shaina Taylor-Brooks, who informed police that
they had been inside the apartment prior to the shooting, and
saw Appellant strike the victim on the head with a small silver
handgun, and threaten to kill everyone in the apartment,
including three children under age five. Ms. Washington and Ms.
Taylor-Brooks were able to leave the apartment with two of the
children while Appellant was beating the victim, and when the
victim attempted to give Ms. Washington and Ms. Taylor-Brooks
the third child to take with them, Appellant physically restrained
her from doing so, and pointed the gun at Ms. Washington and
Ms. Taylor-Brooks. Ms. Washington and Ms. Taylor-Brooks were
able to leave with two of the children while the victim remained
in the apartment with Appellant and her infant child. Appellant
instructed Ms. Washington and Ms. Taylor-Brooks that if he
heard police sirens he would shoot the victim, and the two
women thus opted not to report the incident to police. However,
at approximately 4:38 p.m. that afternoon, Officer Mark Gehron
received a report from an unidentified source of shots fired at
Apartment C-304, and upon arrival found Appellant and the
deceased victim. Appellant was transported to Lancaster
General Hospital for treatment of his gunshot injuries, where he
was interviewed by police and informed them that two men had
entered his apartment and shot him and the decedent.
Following further investigation, Appellant was arrested and
charged with the aforementioned crimes.
See Commonwealth v. Souffrant, 125 A.3d 459, *1-3 (Pa. Super. 2015)
(unpublished memorandum) (internal citations to the record omitted).
Following a trial during which the jury heard a tape of Appellant
threatening to kill the victim and witnesses, Appellant was convicted of first-
degree murder, aggravated assault, two counts of simple assault, terroristic
threats, and endangering the welfare of a child.1 On July 3, 2014, Appellant
received a mandatory sentence of life imprisonment for first-degree murder
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1
See 18 Pa.C.S. §§ 2502(a), 2702(a)(1), 2701(a)(3), 2706(a)(1), and
4304(a)(1), respectively.
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and aggregate consecutive sentences of eleven to twenty-two years of
incarceration on the remaining charges. Appellant’s judgment of sentence
was affirmed on appeal. Souffrant, 125 A.3d at 459. He did not petition
the Pennsylvania Supreme Court for allowance of appeal.
In March 2016, Appellant pro se timely filed a petition seeking post-
conviction relief. Counsel was appointed and filed an amended petition on
Appellant’s behalf, arguing that trial counsel was ineffective for failing to
argue for a manslaughter verdict. See PCRA Petition, 7/1/16, at ¶¶ 44-51.
The court convened a hearing at which trial counsel, Douglas Conrad,
testified.
Mr. Conrad testified that his theory of the case, based upon 1)
Appellant’s statements to police; 2) police acknowledgment there were no
cameras from the courtyard in the back stairwell; and 3) the back door latch
did not close all of the time, was that other individuals had broken into the
apartment and committed the crime. See Notes of Testimony (N.T.),
9/23/16, at 9-10.
Mr. Conrad discussed potential theories of the case with Appellant
prior to trial, and Appellant agreed it was not in his best interests to testify,
due to the potential admission of prior bad acts evidence and prior
convictions. Id. at 23-24. This evidence included 1) Appellant throwing
urine on the victim; 2) Appellant pulling the victim out of a car; 3) Appellant
punching the victim in the mouth and hitting her with a door; and 4) several
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New York convictions. Id. at 24-25. Additionally, had Mr. Conrad chosen to
present the “alternative” theory of heat of passion, he would have had to
inform the jury Appellant had lied to the police, and he was concerned that
this would negatively affect Appellant’s credibility. Id. at 25-26. Following
these discussions, Mr. Conrad picked the theory he felt had the best chance
of success. Id. at 39.
Following the hearing, the PCRA court denied Appellant’s petition.
Appellant timely appealed. The PCRA court did not issue an order pursuant
to Pa.R.A.P. 1925(b) but instead relied upon its opinion denying Appellant’s
petition.
On appeal, Appellant raises a single issue for our review:
Did the lower court err by failing to find trial counsel ineffective
for choosing a trial strategy that had virtually no chance of
producing a verdict other than first-degree murder where an
alternative strategy was available that would likely have
produced a different verdict?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
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)).
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Appellant contends that counsel provided ineffective assistance for his
failure to argue that Appellant had committed the killing while acting under
the heat of passion. See Appellant’s Brief at 9. Essentially, he contends
that 1) trial counsel chose a strategy that had virtually no chance of
resulting in an outcome other than first-degree murder, and 2) an
alternative strategy was available that would have resulted in a more
favorable outcome. Id. Appellant claims trial counsel should have argued
that this was a domestic incident that “turned extremely violent” when the
decedent attempted to kill Appellant by shooting him three times, and that
counsel should have advanced this argument despite Appellant’s lack of
testimony. Id. at 10-11.
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.
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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).
Initially, we note that 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, rendering the mind incapable of reason. Id. A defendant is not
entitled to a voluntary manslaughter charge where the evidence does not
support it. Id.
Here, Appellant’s claim fails on both the prejudice and the reasonable
basis theories. First, Appellant’s claim that a manslaughter defense would
have altered the result of the trial cannot succeed. Although he argues that
the evidence showed that Ms. Brooks shot Appellant three times before he
killed her, Appellant does not address the evidence contradicting his
manslaughter theory, namely 1) numerous areas of bruising, bite marks,
and trauma on Ms. Brooks’ body, and 2) a recording of Appellant’s threats to
kill Ms. Brooks made prior to the attack and murder. As this testimony
would have directly contradicted Appellant’s original statements to the police
and the jury may not have credited it, Appellant cannot claim that but for
counsel’s failure to advance the manslaughter theory, the outcome would
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have been different. See, e.g., Johnson, 966 A.2d at 533. Thus, his claim
fails. Springer, 961 A.2d at 1267.
Further, counsel had an objective, reasonable basis for failing to
advance a manslaughter defense. We note, additionally, that with regard to
the reasonable basis prong,
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. Courts should not deem
counsel’s strategy or tactic unreasonable unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.
Also as a general rule, a lawyer should not be held ineffective
without first having an opportunity to address the accusation in
some fashion . . . The ultimate focus of an ineffectiveness
inquiry is always upon counsel, and not upon an alleged
deficiency in the abstract.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (internal
citations and quotations omitted). Here, counsel’s strategy had a reasonable
basis designed to effectuate his client’s interests. As the PCRA court
correctly noted, the trial strategy employed by Mr. Conrad was consistent
with the original statements Appellant made to police, and was supported by
testimony and facts introduced at trial. See PCO at 5-6. That the jury did
not, ultimately, believe this testimony is not a factor in the reasonable basis
analysis. Here, the court credited Mr. Conrad’s testimony 1) that he
discussed with Appellant the possibility of Appellant testifying at trial, and
decided against it due to the risk of prior bad acts evidence; and 2) he
picked the strategy he felt had the best probability of success. Id. On the
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contrary, the strategy suggested by Appellant would have required counsel’s
acknowledgment that Appellant’s original statements to police were
inconsistent with the arguments now proffered. See Appellant’s Brief at 11.
Accordingly, Appellant cannot show that the alternative theory he
avers counsel should have pursued would have offered a potential for
success substantially greater than the course actually pursued. See
Koehler, 36 A.3d at 132; Springer, 961 A.2d at 1267.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2017
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