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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JULIO ANGEL ORTIZ-LUGO :
:
Appellant : No. 900 MDA 2020
Appeal from the PCRA Order Entered June 16, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000797-2014
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 29, 2021
Appellant Julio Angel Ortiz-Lugo appeals from the Order entered in the
Court of Common Pleas of Berks County on June 16, 2020, denying his first
petition filed pursuant to the Post Conviction Relief Act (PCRA).1 We affirm.
This Court previously set forth the relevant facts and procedural history
on direct appeal as follows:
. . . [Appellant] was sentenced to serve a term of life
imprisonment for first degree murder, was concurrently sentenced
to a term of life imprisonment for second degree murder, and
concurrently sentenced to a term of one to five years for
possession of instruments of crime.1 Appellant received credit for
488 days time served. He was also ordered to pay costs of
$8,139.75.
On November 16, 2013, Aida Flores (“Flores”), the lessee of
504 Minor Street in the City of Reading, Pennsylvania, hosted a
number of people. Her son Brandon Troncoso (“Troncoso”); and
daughter, Nayaliz Flores; her boyfriend, appellant; Lizmar Torres
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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(“Torres”); and Juan Carlos Lopez Bonilla (“Bonilla”). That day,
Flores and appellant had a disagreement. Flores told appellant to
leave. (Notes of testimony, 3/16–18/15 at 114–115.) That
evening, Flores invited her nephew, Jaxel Flores, over to have
pizza and spend the night. (Id. at 122.)
At approximately 10:00 or 11:00 p.m., Flores left her house
to meet her godmother and have a few drinks. When she returned
home at approximately 3:00 a.m., only Torres and Bonilla were
awake. Torres prepared some food and then went upstairs to her
bedroom where her children were sleeping. Torres then fell asleep
herself. (Id. at 121–123.)
Later, Troncoso woke up Torres, by screaming, “Dundy,
what are you doing here?”2 (Id. at 123.) Apparently, appellant
entered the house by breaking and entering through a bathroom
window. Appellant grabbed Torres' phone and ran downstairs.
Troncoso followed him. After checking on the safety of her
daughter, Torres went downstairs. She saw a bloody Bonilla on
the sofa asking for help. Appellant was no longer in the house,
and the front door was open. (Id. at 127–129.) The police were
summoned. Bonilla soon died. The police interviewed Flores, and
she admitted that appellant was her ex-boyfriend. The videotape
of this interview was subsequently played at appellant's trial. (Id.
at 150.)
Appellant was arrested and charged with first, second, and
third-degree murder, burglary, two counts of aggravated assault,
and possession of the instruments of a crime.
Appellant's trial commenced on December 4, 2014. Torres
testified that she came to live with Flores after she was evicted
and that she lived on the third floor of the house. (Id. at 80.)
Torres testified that at around 3:00 or 4:00 a.m. on November
17, 2013, she got up to get milk for her child. She saw appellant
and Bonilla fighting in the living room. She did not see any
weapons but noticed that there was blood on Bonilla's sweatshirt,
appellant's sweatshirt, and appellant's left hand. (Id. at 82–84 .)
The Commonwealth introduced a videotape of Torres' interview
with the Reading Police on November 17, 2013, in which she
stated that appellant had a knife which she described and
demonstrated a stabbing motion. (Id. at 95.)
Jaxel Flores testified that he was at Flores' house on the
night of the killing. He went to bed at between 2:00 to 3:00 a.m.
(Id. at 36, 39.) He was awakened sometime later when he heard
glass breaking. He then heard Torres screaming, “Dundy, no,
don't do it.” (Id. at 40–41.)
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Troncoso, who was 12 years old at the time of trial, testified
that Bonilla stayed at his house for about three or four days
because he was a friend of appellant's. Appellant left the house
that day because he and Flores were fighting. (Id. at 53.) That
night, Troncoso went to bed in his mother's room at approximately
1:30 or 2:00 a.m. He, his sister, and his mother were sleeping in
that room. He woke up when he heard glass breaking in the
bathroom. Troncoso then saw appellant running downstairs after
appellant took Flores' phone. (Id. at 55.) Troncoso went
downstairs and saw Bonilla with “blood all over the couch, on him,
on his head, his hair.” (Id. at 58.) Troncoso saw appellant leave
and throw a knife down a drain outside. (Id. at 58.) In the midst
of cross-examination, Troncoso stated, “I want to go. I don't want
to be here no [sic] more.” (Id. at 67.) After a brief recess,
Troncoso continued with his father, Anthony Troncoso, standing
behind him while he was on the witness stand. (Id. at 73.)
Troncoso admitted that when he was interviewed by the police, he
did not mention a knife. (Id. at 76.)
Officer Charles Federico (“Officer Federico”) of the Reading
Police Department testified that he responded to the call for a
stabbing at Flores' residence. When he arrived, Officer Federico
saw blood on the front door, Bonilla lying in a pool of blood, and
two adults and five children. Troncoso told Officer Federico that
Bonilla was the victim and that his “mom's ex-boyfriend
[appellant]” stabbed him. (Id. at 154–156.) Torres told Officer
Federico that appellant and Bonilla had an argument and “he
[appellant] pulled out a knife and began to stab him.” (Id. at 158.)
Other testimony included evidence that blood samples in the
bathroom window, hallway, entrance way at Flores' house, and
along the sidewalk along the front door of the house were tested
for DNA which indicated that the blood belonged to appellant. (Id.
at 230–237.) Neil Hoffman, M.D. (“Dr.Hoffman”), a forensic
pathologist, testified that Bonilla's death was caused by a
penetrating stab wound that penetrated between the fifth and
sixth ribs and into the pericardial sac and the left ventricle of the
heart. (Id. at 247–249.) On cross-examination, Dr. Hoffman also
testified that the wounds occurred during the course of a struggle.
(Id. at 261–262.)
On March 18, 2015, the jury found appellant guilty of all
charges. On April 29, 2015, the trial court issued its sentence.
On May 8, 2015, appellant filed a post-sentence motion and
sought a new trial and/or arrest of judgment and/or judgment of
acquittal. Appellant alleged the following:
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1. The verdicts are contrary to law.
2. The verdicts are contrary to the evidence.
3. The verdicts are contrary to the weight of the evidence.
4. The evidence was insufficient to sustain the verdicts of
guilty.
5. The verdict of guilty to all counts of the information is
contrary to the law, the evidence, the weight of the
evidence, and the evidence is insufficient to sustain a verdict
of guilty, and defendant is otherwise entitled to appropriate
legal relief, for the following reasons:
(a) [Appellant] avers that given the equivocal and
contradictory nature of the testimony of the witnesses
presented by the Commonwealth, unsupported or
corroborated by forensic evidence that the verdicts as
to the homicide/assault are against the weight of the
evidence.
(b) The Commonwealth lacked sufficient admissible,
reliable and credible evidence of identification that
showed [Appellant] was in fact the perpetrator.
(c) [Appellant] avers that the weight of the evidence
may have established burglary and theft charges and
thus his presence at the scene. However, the evidence
as to his involvement in the homicide/assault was
undercut where [,] although [Appellant's] blood was
all over the house [,] none was apparently present on
or about the body of the deceased.
Appellant's post-sentence motion, 5/8/15 ¶¶ 1–5 at 1–2.
By order dated May 14, 2015, the trial court denied the
motion.
________
118 Pa.C.S.A. § 2502(A), 18 Pa.C.S.A. § 2502(B), and 18
Pa.C.S.A. § 907 respectively.
Commonwealth v. Ortiz-Lugo, 2016 WL 1292858, at *1–3 (Pa.Super. Apr.
1, 2016) (unpublished memorandum).
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After finding Appellant had waived the three issues he presented, this
Court affirmed Appellant’s judgment of sentence on direct appeal. Id. at *4.
The Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of
Appeal on August 23, 2016. See Commonwealth v. Ortiz-Lugo, 636 Pa.
674 (2016).
On December 13, 2016, Appellant timely filed a PCRA petition, pro se.
Counsel was appointed and was granted multiple extensions of time in which
to file an amended PCRA petition. Appellant eventually filed his Amended
Petition for Post Conviction Collateral Relief on August 30, 2019. Therein,
Appellant asserted trial counsel had been ineffective for, inter alia, failing to
request a manslaughter jury instruction. The Commonwealth filed its Answer
to Amended Petition for Post Conviction Collateral Relief on November 12,
2019.
A PCRA hearing was held on March 13, 2020, at which time only trial
counsel, who had been with the Berks County Public Defender’s Office for over
fourteen years, testified. N.T. 3/13/20, at 4. Appellant was present and
assisted by an Official Spanish Court Interpreter. Id. at 3.
Relevant to Appellant’s argument presented herein, counsel indicated
she did not ask the trial court to provide a manslaughter instruction to the
jury in light of Appellant’s defense theory prior to and throughout trial that he
was not present at the time of the murder. Id. at 7. Although counsel and
Appellant met “[q]uite a few” times prior to trial, Appellant’s position that he
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had not been present during the murder never changed. Id. at 8. Counsel
saw no facts which led her to believe a manslaughter instruction was justified.
To the contrary, she stated that one of the initial points a trial court makes
when providing that instruction is that “the defendant killed someone.” Id. at
8-9. For this reason, a manslaughter instruction would not have supported
the theory of defense that had been put forth at trial. Id. at 10.
Counsel admitted that during her closing argument she had focused on
the Commonwealth’s failure to prove malice and not specifically on Appellant’s
absence at the scene of the murder. Id. at 13-14, 17. However, counsel
explained that while there had been evidence presented at trial that an
argument occurred between the assailant and the victim, she did not believe
a verbal argument could invoke a sudden and intense passion on the part of
an assailant that would justify a manslaughter jury instruction. Id. at 16.2
On redirect examination, counsel agreed that Appellant at no time
authorized her “to “basically admit” that he had been present during the
murder. Id. at 17. She agreed that were she to have argued the evidence
supported a voluntary manslaughter instruction, she would have been making
an admission that Appellant was at the scene of the murder. Id. Neither
____________________________________________
2 “The ultimate test for adequate provocation remains whether a reasonable
man, confronted with this series of events, became impassioned to the extent
that his mind was incapable of cool reflection.” Commonwealth v. Montalvo,
986 A.2d 84, 100 (Pa. 2009) (citation omitted).
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Appellant nor any other witness testified at the PCRA hearing to contradict
trial counsel’s assertions pertaining to Appellant’s wishes during trial.
Following the PCRA hearing, the parties submitted briefs in support of
their respective positions. Upon consideration thereof along with the
testimony presented at the PCRA hearing, the PCRA court denied Appellant’s
Amended PCRA Petition on June 16, 2020, and Appellant filed a timely notice
of appeal on July 14, 2020. Appellant filed his concise statement of matters
complained of on appeal on July 24, 2020, and the PCRA court filed its Rule
1925(a) Opinion on September 15, 2020.
In his brief, Appellant presents the following Statement of the Questions
Involved:
I. Did the trial court err in denying PCRA relief given that
defense counsel at trial failed to request a manslaughter jury
instruction in a murder case and failed to put forth any defense of
manslaughter when there was testimonial evidence at trial that
the victim and Appellant had both been arguing and physically
fighting immediately prior to the stabbing death of the victim, thus
indicating hear of passion on the part of Appellant See
Commonwealth v. Diventura, 411 A.2d 815 (Pa.Super. 1979)?
II. Did the trial court err in denying PCRA relief given that
defense counsel at trial failed to request a manslaughter jury
instruction in a murder case when there was no evidence to
suggest any premeditated motive for Appellant to have killed the
victim?
III. Did the trial court err in denying PCRA relief given that
defense counsel at trial failed to request a manslaughter jury
instruction in a murder case despite the fact that defense counsel’s
testimony at the PCRA evidentiary hearing about her trial strategy
did not correspond to the content of her closing argument that she
actually delivered to the jury?
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Brief for Appellant at 4 (unnecessary capitalization omitted).
A petitioner raising claims of trial counsel’s ineffectiveness must
overcome the presumption that counsel is effective by demonstrating the
following:
1. the legal claim underlying the ineffectiveness claim has
arguable merit
2. counsel's action or inaction lacked any reasonable basis
designed to effectuate petitioner's interest;
3. counsel's action or inaction resulted in prejudice to petitioner.
Commonwealth v. Becker, 192 A.3d 106, 112-13 (Pa.Super. 2018). “A
failure to satisfy any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419
(Pa. 2009).
Initially, we could find Appellant’s issues waived for his failure to specify
both in his Amended Petition for Post Conviction Collateral Relief and in his
Concise Statement of Errors Complained of on Appeal whether which he
maintains counsel should have requested a voluntary manslaughter
instruction, an involuntary manslaughter instruction, or both. This confusion
is compounded by the fact that in his concise statement and appellate brief,
Appellant relies upon Commonwealth v. Diventura, 411 A.2d 815
(Pa.Super. 1979), which concerned trial counsel’s failure to request an
involuntary manslaughter charge; yet, he argues there was “ample evidence
of anger and heat of passion and was enough for trial counsel to have made
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a request for a heat of passion or a manslaughter defense as a jury instruction
and counsel was ineffective for not doing so. See Commonwealth v.
DiVentura, 411 A.2d 815 (Pa.Super. 1979).” Brief for Appellant at 18.
“An appellant's concise statement must properly specify the error to be
addressed on appeal.” Commonwealth v. Jackson, 215 A.3d 972, 978
(Pa.Super. 2019). “In other words, the Rule 1925(b) statement must be
specific enough for the trial court to identify and address the issue an appellant
wishes to raise on appeal.” Id. A concise statement which is too vague to
allow the court to identify the issues an appellant raises on appeal is the
functional equivalent of no concise statement at all, and its review and legal
analysis can be fatally impaired when the court has to guess at the issues
raised. “Thus, if a concise statement is too vague, the court may find waiver.”
Id. (citations omitted).
Herein, while trial counsel testified generally at the PCRA hearing
regarding a “manslaughter instruction,” PCRA counsel did question her
specifically about the charge of voluntary manslaughter. N.T., 3/23/20 at 15-
16. In addition, the PCRA court distinguished DiVentura from the case at
bar and rejected the applicability of a voluntary manslaughter jury charge
under the evidence presented in its Rule 1925(a) Opinion. See PCRA Court
Opinion, filed 9/15/20, at 9-11. Thus, to the extent Appellant has preserved
his claims as to trial counsel’s failure to request a voluntary manslaughter jury
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instruction, we next consider their merits. As Appellant’s first two issues are
related, we will discuss them together.
Pursuant to 18 Pa.C.S.A. § 2503, a person commits voluntary
manslaughter if he kills another while, inter alia, “acting under a sudden and
intense passion resulting from serious provocation by” the victim. 18 Pa.C.S.
§ 2503(a)(1). The Pennsylvania Supreme Court has determined a jury
instruction for voluntary manslaughter with respect to a “heat of passion” is
appropriate where the evidence suggests “that, at the time of the killing,
[a]ppellant acted under a sudden and intense passion resulting from serious
provocation by the victim.” Commonwealth v. Sanchez, 82 A.3d 943, 979
(Pa. 2013) (quoting Commonwealth v. Montalvo, 986 A.2d 84, 100 (Pa.
2009)) (alteration in original). “If any of these be wanting—if there be
provocation without passion, or passion without a sufficient cause of
provocation, or there be time to cool, and reason has resumed its sway, the
killing will be murder.” Id. at 980 (quoting Commonwealth v. Hutchinson,
25 A.3d 277, 315 (Pa. 2011)).
As the PCRA court stressed, a reading of the aforementioned elements
of voluntary manslaughter necessitates an individual’s acknowledgement that
he or she killed another person. The PCRA court found that “[t]his fact is of
extreme importance in the instant matter where [t]rial [c]ounsel is accused of
ineffective assistance for failing to request a jury instruction that would have
essentially conceded that her client was (1) present at the scene, and (2)
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actually killed the victim.” PCRA Court Opinion, filed 9/15/20, at 6. The PCRA
court explained it had found trial counsel’s unrebutted testimony at the PCRA
hearing to be “highly credible” and her strategy to be “reasonable, simple, and
straightforward; namely, that her client was not involved in any way with the
murder of the victim.” Id. at 7-8. The PCRA court went on to state:
Had Attorney Billman attempted to procure the alternate
theory of manslaughter, she would have placed herself in the
position of admitting that her client was present, had committed
the murder, and that heat of passion excused it to some extent.
As stated above, throughout her representation, [Appellant]
never gave her permission to admit that he had committed the
act of killing the deceased. (PCRA Hearing, 3/13/20 at p.7, 8,10,
12). Considering that [Appellant] did not testify and/or refute
[t]rial [c]ounsel's statements regarding his own defense strategy,
this [c]ourt finds that it is disingenuous to now argue that [t]rial
[c]ounsel was ineffective for abiding by his prior wishes at the
time of trial.
Moreover, a thorough reading of the trial transcript shows
that there is no evidence that points to a provocation on behalf of
the deceased victim, and that such provocation was directed
toward [Appellant]. If anything, the evidence in the case points to
the fact [Appellant] was the initial aggressor who broke into the
residence and then committed the murder out of jealousy. (N.T.
March 16, 2015 at 39-41, 53, 55-59, 80-82, 88-89, 114,117,123-
129). The mere assertion by PCRA [c]ounsel that the victim and
[Appellant] were “arguing and fighting immediately prior to the
stabbing death of the victim” 3 does not-by any means-prove that
the deceased victim caused an intense provocation that
[Appellant] had to overcome. Absent such evidence, [Appellant]
is incapable of establishing the lack of any type of “cooling off”
period that is required in order to establish a basis for voluntary
manslaughter Busanet, supra, Sanchez, supra. [Appellant’s] claim
must therefore fail.
***
Contrary to the situation in DiVentura, [Appellant] in the
instant case did not take the stand in his own defense and did not
assert any facts that would lead this Court to the conclusion that
a manslaughter charge would be appropriate. To the contrary,
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[Appellant’s] trial counsel-Attomey Billman-made it very clear at
the PCRA hearing that it was her client's position the entire time
that he did not engage in any activity that would suggest that he
fought with the victim, let alone killed the victim. (PCRA Hearing,
3/13/20 at p.7, 8, 10, 12). As such, our case is factually
distinguishable from the case cited by [Appellant].
Moreover, the Superior Court in DiVentura makes it clear
that DiVentura's trial counsel did not assert any trial strategy “as
the reason for counsel's decision not to request the instruction.”
DiVentura, supra. In the instant case, Attorney Billman made her
trial strategy abundantly clear to this [c]ourt; namely, her client
stated that he wasn't present and therefore did not commit the
act. Attomey Billman specifically stated that a request for a
manslaughter instruction would run counter to her client's position
as the definition of Manslaughter starts with the presumption that
her client did, in fact, commit a murder, albeit under a “heat of
passion” scenario. Unlike the situation in DiVentura, Attorney
Billman relied on the present state of the law, and her reasonable
trial strategy, as her basis for not requesting the manslaughter
instruction. From this, we find no ineffectiveness against Trial
Counsel and PCRA counsel's reliance on DiVentura is factually and
legally misplaced.
______
3See [Appellant’s] Concise Statement of Errors Complained of on
Appeal, page 1.
Id. at 8-9, 10-11.
The law is settled that trial counsel will not be deemed ineffective for
failing to request a jury instruction on voluntary manslaughter where such a
charge is contrary to the defense theory of the case. See Commonwealth v.
Ort, 581 A.2d 230 (Pa.Super. 1990) (holding trial counsel not ineffective for
failing to request voluntary manslaughter instruction in murder trial where
person killed in an arson-connected fire and where defense was defendant did
not set fire); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208
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(1983)(finding voluntary manslaughter charge inconsistent with “innocent
bystander” defense).
In the matter sub judice, the record reveals counsel's strategy was to
pursue Appellant’s theory that he did not commit the murder, and this strategy
is clearly inconsistent with a charge of voluntary manslaughter. Indeed,
because Appellant insisted that he was not at the scene of the murder, counsel
was prevented from requesting a jury instruction for manslaughter, which
would have required some concession of Appellant’s culpability for the murder.
See McCoy v. Louisiana, ___ U.S. ___, 138 S. Ct. 1500, 1505, 200 L. Ed.
2d 821 (2018) (holding a defendant has the constitutional right to adamantly
object to any admission of guilt and to insist that counsel refrain from
admitting his or her guilt, even when counsel’s experienced-based view is that
conceding guilt offers the defendant the best chance to avoid a greater
penalty).
Furthermore, we note that the jury was charged on first-degree, second
degree, and third-degree murder, and returned a verdict of guilty on all
offenses. See N.T., 3/18/15, at 302. Accordingly, even if trial counsel erred
in failing to request a manslaughter charge, Appellant suffered no prejudice.
See Commonwealth v. Haynes, 577 A.2d 564, 574 (Pa.Super. 1990
(concluding appellant suffered no prejudice from trial court's denial of
voluntary manslaughter charge where jury was charged on first, second and
third-degree murder and found appellant guilty of first degree murder; “jury
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could have exercised its mercy dispensing power and brought in a verdict of
third or second degree murder[,] but it found appellant guilty of first-degree
murder.”).
Therefore, as the PCRA court concluded, Appellant was not entitled to a
jury instruction on voluntary manslaughter, and trial counsel was not
ineffective for failing to request that instruction. See Becker, supra.
Accordingly, Appellant is entitled to no relief on his first two claims.
In his final issue, Appellant alleges trial counsel’s testimony at the PCRA
hearing was in direct conflict with statements she made during closing
argument to the jury at trial. Specifically, Appellant reasons that because
counsel focused a portion of her closing argument on disproving an element
of first degree murder, malice, she also should have argued in favor of
manslaughter as that would have been consistent with the trial testimony and
achieved her apparent goal of obtaining a verdict of something less than first
degree murder. In finding no merit to this contention, the PCRA court stated:
This [c]ourt finds PCRA [c]ounsel's unrebutted testimony
highly credible in that she did not believe that the testimony
produced at trial established a basis for a Manslaughter defense.
Without such evidence, Attorney Billman had no factual basis, or
legal obligation, to request such a charge. See Commonwealth
v. Williams, 640 A.2d 1251(1994). Moreover, this [c]ourt does
not agree that [t]rial [c]ounsel's argument to the jury that malice
was not proven by the Commonwealth is somehow akin to arguing
that the elements of Manslaughter were present. To the contrary,
it is clear to this [c]ourt that [t]rial [c]ounsel was merely arguing
that the Commonwealth had failed to establish [Appellant’s] guilt
of First Degree Murder beyond a reasonable doubt. We do not read
anything further in her closing statement to the jury, nor do we
find her closing argument in any way inconsistent with her
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testimony before this [c]ourt at the PCRA Hearing on March 13,
2020. For these reasons, we find Petitioner's final claim to be
without merit.
Trial Court Opinion, filed 9/15/20, at 13.
Appellant’s entire argument on this claim of ineffectiveness of counsel
centers around his interpretation of certain statements trial counsel uttered
during her closing argument as being contradicted by her PCRA testimony.
However, his view that the closing argument focused upon the element of
malice is belied by a reading of it in its entirety, wherein she develops a
metaphor of the case as a puzzle in which the Commonwealth’s evidence had
left numerous missing pieces. See N.T. Trial, 3/18/15, at 271-277. Counsel’s
references to malice were made in the larger context of her emphasis upon
the shortcomings and inconsistencies in the Commonwealth’s witness’
testimony as “flawed Individuals,” id. at 272, not as an admission that the
elements of manslaughter had been satisfied.
Moreover, regardless of the allegations counsel made in her closing
argument, the trial court properly instructed the jury at the outset of trial as
follows:
First and foremost remember that you alone are the judges
of the facts. And you’re going to hear that in my last charge to
you at the end of the case, several times; that is, you must
determine what the facts are based solely on the evidence that
will be presented to you here in court. What attorneys say is
not evidence. It’s only what you will hear from the witnesses
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who appeal and who will testify that constitutes evidence, as well
as any exhibits that are admitted. . . .(emphasis added).3
N.T. Trial, 3/16/15, at 11.
“It is well settled that the jury is presumed to follow the trial court's
instructions, and Appellant does not otherwise attempt to offer any evidence
establishing that the jury failed to do so in the instant case.” Commonwealth
v. Cash, 635 Pa. 451, 484, 137 A.3d 1262, 1280 (2016) (citation omitted).
Similarly, the jury herein was well aware that neither defense counsel’s nor
the Commonwealth’s closing argument was evidence or could usurp its role
as the sole finder of facts from the evidence presented at trial and the sole
judge of a witness’s credibility. Accordingly, Appellant has failed to prove by
a preponderance of the evidence that trial counsel provided ineffective
assistance due to statements made during closing argument. As a result, his
final claim must fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/29/2021
____________________________________________
3The trial court’s closing instructions were given but not transcribed. See
N.T.3/18/15, at 295 (indicating only “(Charge of the Court)”.
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