J-S58022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMUEL LEE FOSTER, II,
Appellant No. 707 MDA 2017
Appeal from the PCRA Order April 13, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000522-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 18, 2017
Appellant, Samuel Lee Foster, II, appeals from the order denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
[Appellant] was charged with one count of aggravated
assault.1 A two day jury trial, at which [Appellant] was
represented by the Lancaster County Public Defender’s Office,
commenced on May 6, 2013. At the conclusion of the trial,
[Appellant] was found guilty and, on June 28, 2013, was
sentenced to an aggregate term of two to six years
incarceration. [Appellant] is currently serving that sentence.
1 18 Pa.C.S. § 2702(a)(3).
The incident that gave rise to this charge occurred on
September 12, 2012, when [Appellant], an inmate housed in the
Medical Housing Unit of Lancaster County Prison, smeared butter
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on the lens of the surveillance camera in his cell and then left
the cell when a corrections officer came to clean it. In the
course of subduing [Appellant] and returning him to his cell, one
corrections officer’s pant leg was spit upon and that officer was
kneed in the groin by [Appellant].
[Appellant] filed a timely notice of appeal and the Superior
Court affirmed the judgment of sentence. Commonwealth v.
Foster, 1385 MDA 2013 (Pa. Super., April 9, 2014).
[Appellant’s] petition for allowance of appeal was denied on
October 24, 2014.
On January 23, 2015, [Appellant] filed a timely pro se
motion for post conviction collateral relief. The [c]ourt appointed
counsel who filed an amended motion for post conviction
collateral relief on August 16, 2016, alleging ineffective
assistance of counsel. In particular, [Appellant] alleges that his
trial counsel was ineffective for neither requesting an instruction
on prior inconsistent statements nor objecting when the [c]ourt
did not give such an instruction, [and] for failing to request an
instruction on the concept of false in one, false in all[.]
An evidentiary hearing was held on January 26, 2017.
[Appellant] and the Commonwealth have submitted briefs in
support of their respective positions.
PCRA Court’s Opinion, 4/13/17, at 1-2.
The PCRA court denied Appellant’s amended petition on April 13, 2017.
Appellant filed an appeal on April 24, 2017. The PCRA court and Appellant
complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
A. Whether the lower court erred in denying [Appellant’s]
amended PCRA when trial counsel was ineffective when he
neither requested an instruction on prior inconsistent
statements nor objected when the court failed to give such an
instruction?
B. Whether the lower court erred in denying [Appellant’s]
amended PCRA when counsel was ineffective by failing to
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request an instruction concerning the concept of false in one
and false in all?
Appellant’s Brief at 4 (full capitalization omitted).
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). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id.
Appellant first argues that trial counsel was ineffective for failing to
request an instruction on prior inconsistent statements, or object when the
trial court failed to give such an instruction. Appellant’s Brief at 11.
Appellant asserts that during cross-examination of Officer Stephen
Napolitan, counsel confronted Officer Napolitan regarding inconsistent
statements contained in the Officer’s report. Id. at 12-13. Specifically,
Appellant contends that Officer Napolitan was confronted with the fact that
his report indicated that the Officer applied an underarm neck hold on
Appellant outside of his cell, but Officer Napolitan testified on direct
examination that he had applied such neck hold when Appellant was already
in the cell. Id. at 13. Appellant maintains that although the Pennsylvania
Suggested Standard Jury Instructions specifically provide for an instruction
pertaining to prior inconsistent statements, counsel neither requested such
instruction nor objected when the trial court failed to give it. Id. Appellant
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further asserts that the trial court’s general jury instruction on witness
credibility given to the jury “does not excuse trial counsel’s decision in this
case.” Id. at 14.
When considering an allegation of ineffective assistance of counsel
(“IAC”), 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) petitioner 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
ineffective assistance of counsel will fail if the petitioner does not meet any
one 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).
We are mindful that:
When evaluating the propriety of jury instructions, this
Court will look to the instructions as a whole, and not simply
isolated portions, to determine if the instructions were improper.
We further note that, it is an unquestionable maxim of law in
this Commonwealth that a 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. Only where there is an abuse of
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discretion or an inaccurate statement of the law is there
reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014).
(citations omitted). “The trial court is not required to give every charge that
is requested by the parties and its refusal to give a requested charge does
not require reversal unless the [a]ppellant was prejudiced by that refusal.”
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).
We first note that aside from Appellant’s bald assertion that counsel’s
decision not to request this instruction was unreasonable and that Appellant
was prejudiced by the absence of this instruction, Appellant fails to develop
his argument or present pertinent authority to support his position.
Accordingly, his first issue is waived. Commonwealth v. Charleston, 94
A.3d 1012, 1021 (Pa. Super. 2014).
Furthermore, Appellant’s claim lacks merit. As the trial court
explained:
Although no instruction was requested or given regarding prior
inconsistent statements, the [c]ourt gave an extensive charge on
witness credibility that clearly, adequately and accurately
reflected the law.
In particular, the Court stated[:]
As judges of the facts, you are the sole judges
of the credibility of the witnesses and the witnesses’
testimony. This means you must judge the
truthfulness and accuracy of each witness’ testimony
and decide whether to believe all, part or none of
that testimony.
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The following are some of the factors that you
may consider when judging credibility and deciding
whether or not to believe testimony . . . .
Did the witness testify in a convincing manner?
How did the witness look, act and speak while
testifying? Was the witness’ testimony uncertain,
confused, self-contradictory or evasive? . . .
How well does the testimony of the witness
square with the other evidence in the case, including
the testimony of other witnesses? Was the witness’
testimony contradicted or supported by other
testimony and evidence? Does the witness’
testimony make sense to you?
If you believe some part of the testimony of a
witness is inaccurate, consider whether the
inaccuracy casts doubt upon the rest of the witness’
testimony. This may depend on whether the witness
has been inaccurate in an important matter or a
minor detail and on any possible explanation. For
example, did the witness make an honest mistake or
simply forget, or did the witness deliberately falsify?
While you are judging the credibility of each
witness, you are likely to be judging the credibility of
other witnesses or evidence. If there is a real
irreconcilable conflict, it is up to you to decide which,
if any, conflicting testimony or evidence to believe.
As sole judges of credibility and fact, you are
responsible to give the testimony of every witness
and all other evidence whatever credibility and
weight you think it deserves.
(N.T. trial, May 7, 2013, at 220-222).
In light of this instruction, trial counsel testified at the
PCRA hearing that the Court “adequately, and in great detail,
discussed what to take into account on witness credibility” and,
therefore, he did not request a specific instruction on prior
inconsistent statements. (PCRA hr’g tr., January 26, 2017, at 6).
Taken in its entirety, the jury instruction on assessing credibility
accurately reflected the law and adequately prepared the jury to
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deal with potential inconsistencies between testimony the
witness gave at trial and what he wrote in his earlier report even
if it did not specifically refer to prior inconsistent statements.
The jury was instructed that it was to consider aspects of the
testimony and evidence that might have been contradictory and,
in assessing potential inaccuracies in the testimony, it should
consider whether the inaccuracy was in an important matter or a
minor detail. Depending on its determination, the jury could
give the testimony whatever weight and credibility was
warranted.
Nor is there any reasonable probability that the result
would have been different had the instruction been requested
and given. As stated in the instructions, the jury was to consider
whether inaccuracies in any testimony related to important
matters or minor details. The discrepancies in the details of the
victim’s testimony and his prior written report relate to the
precise location and sequence of events unfolding during a
struggle between [Appellant] and three corrections officers in
which [Appellant] was flailing his arms and legs, trying to climb
over a railing outside his cell and resisting commands to return
to his cell and get on the floor to be handcuffed. Any
inconsistency in exactly where the particular action in question
occurred does not relate to any element of the Commonwealth’s
case, nor was it asserted by trial counsel as a defense.
Ultimately, any inconsistency would likely be seen as relatively
minor, and there is nothing to suggest that the jury would have
assessed the evidence differently had it been instructed on prior
inconsistent statements.
Trial Court Opinion, 4/13/17, at 6-8.
The trial court’s analysis is supported by the evidence of record. Thus,
had Appellant’s issue not been waived, we would find that it lacked merit
because Appellant has failed to establish all three prongs of an IAC claim.
Spotz, 84 A.3d at 311.
In his second issue, Appellant argues that trial counsel was ineffective
for failing to request an instruction concerning the concept of “false in one,
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false in all.” Appellant’s Brief at 15. Appellant again contends that counsel’s
reasons for failing to request the instruction cannot be deemed reasonable
and that Appellant was prejudiced. Id. Appellant further maintains that it
was “vitally important” that he received this instruction due to the fact that
some of the video evidence of the incident was of poor quality, and as a
result, the case boiled down to the credibility of the correctional officers and
Appellant. Id.
“False in one, false in all” is a concept for assessing the weight of
evidence. The maxim is simply a translation of the Latin phrase
“falsus in uno, falsus in omnibus.” It currently means that a jury
may disregard the testimony of a witness if the jury believes
that witness deliberately, or willfully and corruptly, testified
falsely about a material issue. The standard jury charge reads:
If you decide that a witness deliberately testified
falsely about a material point [that is, about a matter
that could affect the outcome of this trial,] you may
for that reason alone choose to disbelieve the rest of
his or her testimony. But you are not required to do
so. You should consider not only the deliberate
falsehood but also all other factors bearing on the
witness’s credibility in deciding whether to believe
other parts of [his] [her] testimony.
Commonwealth v. Vicens-Rodriguez, 911 A.2d 116, 117–118 (Pa.
Super. 2006) (footnote omitted); Pennsylvania Suggested Standard Jury
Instruction (Crim) 4.15. In Vicens-Rodriguez, this Court further stated:
It is true that the “false in one, false in all” charge is a proper
statement of the law, and there is no harm if that charge is
given. However, we do hold that when a full and complete
charge is given on credibility, ... there is no error in failing to
give the specific charge.
Id. at 120 (footnote omitted).
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As the holding in Vicens-Rodriguez makes clear, to be entitled to
relief, Appellant must demonstrate more than the applicability of the “false
in one, false in all” instruction to the facts of the case. Under that authority,
Appellant must also establish the inadequacy of the jury instructions actually
given on matters addressed by the “false in one, false in all” instruction.
Appellant’s brief, however, contains no discussion whatsoever of the jury
instructions actually given, or their inadequacy in relation to the proposed
instruction. A review of the instruction given reflects that a full and
complete charge on credibility was given. Thus, we find no error in the trial
court’s failure to give such a charge or counsel’s failure to request such
charge. Vicens-Rodriguez, 911 A.2d at 120.
Moreover, counsel explained at the PCRA hearing that he decided not
to request this instruction as the court’s instruction adequately covered
consideration of witness credibility. N.T., 1/26/17, at 6-7. Thus, trial
counsel had a reasonable basis for his actions, and as a result, Appellant
fails to establish the second prong of the IAC test. Spotz, 84 A.3d at 311.
Furthermore, the trial court addressed Appellant’s claim as follows:
For many of the same reasons [outlined in addressing
Appellant’s first issue], [Appellant’s] claim that counsel was
ineffective for failing to request an instruction on the concept of
false in one, false in all also lacks merit.2 Additionally, it is
notable that [Appellant] chose to testify at trial and that his
testimony was contradicted by three corrections officers in both
direct and rebuttal testimony. Had an instruction been given on
false in one, false in all, it would have applied equally and most
likely detrimentally to [Appellant]. Further, as with his previous
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claim, [Appellant] has failed to demonstrate he was prejudiced
by trial counsel’s asserted failure to request this instruction.
2This instruction applies to willfully false testimony,
not minor inconsistencies or simple lapses in
memory.
Trial Court Opinion, 4/13/17, at 8.
We agree with the trial court’s analysis. Appellant has failed to
establish that if the “false in one, false in all” instruction had been given that
the outcome of the trial would have been different. Reed, 42 A.3d at 319.
Thus, Appellant has not established the prejudice prong of the IAC test.
Spotz, 84 A.3d at 311. Accordingly, Appellant’s claim of IAC on the basis of
his failure to request this jury instruction fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
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