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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PAUL BARONE, JR. :
:
Appellant : No. 1528 WDA 2018
Appeal from the PCRA Order Entered October 1, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006683-2013
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 24, 2019
Paul Barone, Jr. appeals from the order, entered in the Court of Common
Pleas of Allegheny County, dismissing without a hearing his petition filed under
the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we affirm.
In the early morning hours of March 3, 2013, Barone left Club Pink with
Travon Fuller. Barone retrieved a .40 caliber Glock pistol from the glove
compartment of Fuller’s black Audi. Barone then walked to the club parking
lot to find John Scott, a friend who had come with him to the club. While
looking for Scott, Barone noticed people in the parking lot “getting guns out
from under the hood” of a Dodge Intrepid. N.T. Trial, 8/20/15, 102. Barone
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* Retired Senior Judge assigned to the Superior Court.
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located Scott and they both returned to Fuller’s vehicle. As they approached
Fuller’s vehicle, Barone exchanged gunfire with unidentified individuals. While
being fired upon, all three fled the area inside Fuller’s vehicle. John Sumpter,
who was sitting in the Intrepid, died from a .40 caliber bullet wound to the
head.
Barone was charged with criminal homicide,1 and carrying a firearm
without a license.2 At trial, Barone’s counsel argued that Barone was justified
in firing his weapon in self-defense. A jury found Barone guilty of all charges,
and on August 20, 2015, Barone was sentenced to life imprisonment without
the possibility of parole and a concurrent 2-4 year’s imprisonment. After filing
post-sentence motions, Barone timely appealed and this court affirmed his
judgment of sentence on June 21, 2017. Commonwealth v. Barone, 232
WDA 2018 (Pa. Super. filed 6/21/17) (unpublished memorandum). Barone
did not file a petition for allowance of appeal to the Pennsylvania Supreme
Court. On June 18, 2018, Baron filed a counseled PCRA petition, which was
dismissed without a hearing on October 1, 2018. This timely appeal followed.
Barone’s sole argument on appeal is that the PCRA court improperly
dismissed his petition without a hearing because his trial counsel was
ineffective for failing to request a jury instruction on imperfect self-defense.
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1 18 Pa.C.S.A. § 2501(a).
2 18 Pa.C.S.A. § 6106.
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There is no absolute right to an evidentiary hearing on a PCRA petition.
Commonwealth v Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). The
PCRA court has discretion to dismiss a petition without a hearing when the
court is satisfied there are no genuine issues concerning any material fact, the
defendant is not entitled to post-conviction collateral relief, and no legitimate
purpose would be served by further proceedings. Pa.R.Crim.P. 907;
Commonwealth v. Cousar, 154 A.3d 287, 297 (Pa. 2017).
Barone’s issue concerns trial counsel’s effectiveness. We presume
counsel was effective, and it is Barone’s burden to prove otherwise. See
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). To prevail on an
ineffectiveness claim, Barone must establish:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
[appellant] suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Commonwealth v. Lesko, 15 A.3d 345, 373 (Pa. 2011). Barone must prove
each element; merely alleging each element is not sufficient. See
Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015). A reasonable
basis does not require that counsel chose the most logical course of action,
but that the decision had some reasonable basis. Commonwealth v. Bardo,
105 A.3d 678, 684 (Pa. 2014). “To demonstrate prejudice, a petitioner must
show that there is a reasonable probability that, but for counsel’s actions or
inactions, the result of the proceeding would have been different.” Mason,
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130 A.3d at 618 (citing Strickland v. Washington, 466 U.S. 668, 684
(1984)).
Self-defense and imperfect self-defense share many elements. For a
defendant to prevail on a theory of self-defense, there must be evidence that:
1) the defendant reasonably believed he was in imminent danger of death or
serious bodily harm and deadly force was necessary to prevent the harm; 2)
the defendant was free from fault in provoking the situation that ended in
death; and 3) the defendant could not have retreated in complete safety. See
Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012). Imperfect
self-defense is established when the defendant actually, but unreasonably,
believed that deadly force was necessary. Commonwealth v. Son Truong,
36 A.3d 592, 599 (Pa. Super. 2012). However, the defendant must still meet
the other two elements of self-defense. Id.
Here, Barone has failed to prove that trial counsel was ineffective
because he is unable to show that he suffered prejudice from counsel’s alleged
error. Both self-defense and imperfect self-defense require a showing that
Barone could not retreat safely. See Sepulveda, 55 A.3d at 1124. However,
the evidence at trial showed that Barone had multiple opportunities to retreat
safely. See Trial Court Opinion, 6/29/16, at 12. Thus, the outcome of the
trial would have been the same under an imperfect self-defense theory
because Barone did not retreat when he was able. Therefore, counsel was not
ineffective because his actions did not prejudice Barone.
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Order affirmed.
Judge Murray joins this Memorandum.
Judge Colins files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2019
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