Com. v. Carter, S.

J-A15043-20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SOLOMON CARTER, :
:
Appellant : No. 415 EDA 2019

Appeal from the PCRA Order Entered January 17, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000228-2009

BEFORE: LAZARUS, J., KING, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED: FEBRUARY 26, 2021

Solomon Carter (Appellant) pro se appeals from the January 17, 2019

order, which dismissed his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm in part

and reverse in part, vacate Appellant’s judgment of sentence, and remand

for resentencing.

Appellant’s underlying charges stem from the stabbing of Karima

Ballard. On direct appeal, the trial court provided the following factual

history, which this Court adopted. Commonwealth v. Carter, 75 A.3d 554

(Pa. Super. 2013) (unpublished memorandum at 1).

On Sunday, October 8, 2008, at about 3:00 a.m., police
responded to a disturbance [on North 16th Street,] and found

* Retired Senior Judge assigned to the Superior Court.
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two victims suffering from stab wounds. One victim, Ballard, was
later pronounced dead from the stab wounds.

The day prior to the night of the incident, between 4:00
and 5:00 p.m., Appellant was released from jail and went to see
his girlfriend, Ballard, who braided his hair so he would look
presentable when seeing his family. The couple did not argue
and after having his hair braided, Appellant went to North
Philadelphia to see his family.

Appellant returned between 1:00 and 2:00 a.m., later that
night[,] angry and agitated and Ballard asked him to leave.
Appellant left the residence after Ballard gathered some of his
items from the house and put them in a back[]pack. Appellant,
however, did not leave the area and remained outside her home
ringing the bell and demanding the rest of his belongings.
Ballard gathered more of his belongings, and when she went to
open the outer door of the house, Appellant entered and threw
Ballard across a table and onto a couch.

At this point, Gabrielle Kirben, who was also present in the
house, testified that she grabbed one of her children and put him
in a back bedroom away from the danger. When she returned,
Appellant had dragged Ballard to her bedroom and locked the
door, so Kirben went to the kitchen to get a knife and attempted
to gain access to the room. She testified that she heard Ballard’s
speech being muffled, as if she was being prevented from talking
or breathing. After being unable to open the door with the knife,
Kirben kicked the door open to see Appellant choking Ballard.

Kirben called the police and when Appellant saw her on the
phone, he chased after her. A struggle ensued between Kirben
and Appellant[,] during which Appellant took the knife from
Kirben. Kirben received minor cuts at this time. All three persons
eventually ended up in the bathroom where they continued to
struggle.

At this time police arrived, and when Appellant saw an
officer through a window, Kirben was able to flee the bathroom
and escape through the front door, though she received
additional lacerations on her arms in the process. Appellant then
locked the front door and barricaded himself in the house as
police tried to gain entry. One police officer testified that while

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looking through the bathroom window she witnessed Appellant
stab Ballard at least twice.

Police officers eventually gained entry to the house and a
second bathroom where Appellant and Ballard were both found.
Another police officer, the first to enter the barricaded bathroom,
saw Appellant standing over Ballard with the knife in his hand.
He ordered Appellant to drop the knife, which Appellant did[,]
after which he threw up his hands.

Appellant was placed under arrest while other officers
carried the still[-]alive Ballard to a patrol car and raced her to
the hospital. She was alive upon arriving at the hospital, but
later died.

Appellant, while in custody approximately two hours after
the incident, was heard by officers saying[,] “Is she dead yet? Is
she dead yet? Is the fucking bitch dead yet?”

Trial Court Opinion, 2/24/2012, at 2-3 (unnumbered) (party designations

altered). Based on the foregoing, Appellant was charged with criminal

homicide, attempted murder, aggravated assault, and possessing an

instrument of crime (PIC).

Appellant proceeded to a non-jury trial from October 3 to 4, 2011.1 At

the conclusion of the trial, the court found Appellant guilty of first-degree

murder, aggravated assault, and PIC, and not guilty of attempted murder.

That same day, the trial court sentenced Appellant to the mandatory

sentence of life imprisonment without the possibility of parole for his first-

degree murder conviction, and an aggregate concurrent sentence of five to

ten years of incarceration on the remaining two charges. This Court affirmed

1 A team of two attorneys represented Appellant during trial.

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Appellant’s judgment of sentence, and on September 9, 2013, our Supreme

Court denied Appellant’s petition for allowance of appeal. Carter, 75 A.3d

554, appeal denied, 74 A.3d 1029 (Pa. 2013).

On September 3, 2014, Appellant pro se timely filed the instant PCRA

petition, raising 14 claims of ineffective assistance of trial and appellate

counsel, prosecutorial misconduct, and judicial error. The PCRA court

appointed counsel, who subsequently filed a petition to withdraw and

Turner/Finley2 no-merit letter on June 6, 2018.3 On August 20, 2018, the

PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition

without a hearing, pursuant to Pa.R.Crim.P. 907, in light of counsel’s

Turner/Finley letter. On September 11, 2018, Appellant responded, (1)

asking for PCRA counsel to remain or in the alternative to be appointed new

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3 We note our displeasure over the extensive delay of proceedings that
occurred in this case. Over six months passed before the PCRA court
appointed counsel, and over three years passed between counsel’s first
letter to Appellant and the filing of the Turner/Finley letter. Our Supreme
Court has made clear that “[t]he PCRA court [has] the ability and
responsibility to manage its docket and caseload and thus has an essential
role in ensuring the timely resolution of PCRA matters.” Commonwealth v.
Renchenski, 52 A.3d 251, 260 (Pa. 2012) (citing Commonwealth v.
Porter, 35 A.3d 4, 24-25 (Pa. 2012) (“[T]he court, not counsel, controls the
scope, timing and pace of the proceedings below.”)). Additionally, “post-
conviction counsel must ‘act expeditiously so as to reduce unnecessary
delays and ensure the efficient administration of justice.’” Id. (citing
Commonwealth v. Sneed, 45 A.3d 1096, 1104 n.11 (Pa. 2012)).

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counsel; (2) addressing the 14 claims raised in his pro se petition; and (3)

stating that PCRA counsel and appellate counsel had abandoned him.4 On

January 17, 2019, the PCRA court dismissed Appellant’s PCRA petition and

granted counsel’s motion to withdraw.

Appellant pro se timely filed a notice of appeal.5 On appeal, Appellant

argues that the PCRA court erred in dismissing nine of his ineffective-

assistance-of-counsel claims, and additionally argues that PCRA counsel

rendered ineffective assistance of counsel. Appellant’s Brief at 5-6. We begin

with our standard of review.

This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).

It is well settled that there is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine
from the record that no genuine issues of material fact exist,

4 Appellant simultaneously filed a complaint against PCRA counsel in order to
initiate disciplinary proceedings.
5 The PCRA court did not order Appellant to file a concise statement, and

none was filed. The PCRA court complied with Pa.R.A.P. 1925(a).

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then a hearing is not necessary. To obtain reversal of a PCRA
court’s decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of fact
which, if resolved in his favor, would have entitled him to relief,
or that the court otherwise abused its discretion in denying a
hearing.

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019)

(citations, original brackets, and quotations marks omitted). Because all of

Appellant’s claims assert the ineffective assistance of counsel, we also keep

in mind the following.

The law presumes counsel has rendered effective assistance. In
general, to prevail on a claim of ineffective assistance of counsel,
a petitioner must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place. The petitioner must demonstrate: (1) the
underlying claim has arguable merit; (2) counsel lacked a
reasonable strategic basis for his action or inaction; and (3) but
for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been
different. The petitioner bears the burden of proving all three
prongs of the test.

Commonwealth v. Postie, 200 A.3d 1015, 1022-23 (Pa. Super. 2018) (en

banc) (citations, footnote, and quotation marks omitted). “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).

Ineffective Assistance of Trial Counsel: Competency Evaluation

Appellant first argues that the PCRA court erred in dismissing his claim

that trial counsel rendered ineffective assistance by not requesting a

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competency hearing, and not objecting to the trial court’s “basic” colloquy

about Appellant’s jury trial waiver as being inadequate to assess Appellant’s

competency to stand trial. Appellant’s Brief at 10-13.6

We find our Supreme Court’s analysis in Commonwealth v. Rainey,

928 A.2d 215 (Pa. 2007), instructive.

Appellant is required to plead and prove by a preponderance of
the evidence ... that the conviction or sentence resulted from
... ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place. A defendant is presumed to be competent to
stand trial. Thus, the burden is on Appellant to prove, by a
preponderance of the evidence, that he was incompetent to
stand trial. In order to prove that he was incompetent, Appellant
must establish that he was either unable to understand the
nature of the proceedings against him or to participate in his
own defense.

[Rainey] does not assert that he was unable to understand the
nature of the proceedings against him. See 50 P.S. § 7402(a) (a
person is incompetent to stand trial when he is “substantially
unable to understand the nature or object of the proceedings
against him or to participate and assist in his defense”).
Therefore, even if counsel had no reasonable basis to decline to
pursue a competency evaluation, [Rainey] fails to articulate how
he was prejudiced because he cannot establish that had
counsel requested an evaluation and hearing, the outcome of the
guilt or sentencing phase would have changed. The 1996
declaration submitted by Dr. Toomer merely concludes that
“[g]iven [Rainey]’s deficits and impairments,

6 Insofar as Appellant argues throughout his brief that counsel rendered
ineffective assistance by pursuing a diminished capacity defense at trial, that
claim is waived for having failed to raise it before the PCRA court.
Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (“[C]laim[s]
not raised in a PCRA petition cannot be raised for the first time on appeal.”).

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a competency evaluation would have been appropriate at the
time of trial proceedings.” Declaration of Dr. Toomer at 3.
Notably, Dr. Toomer does not claim that the result of
a competency evaluation would have demonstrated that
[Rainey’s] various mental deficiencies prevented him from
understanding the proceedings against him. This is insufficient to
satisfy [Rainey’s] burden to prove that he was, in fact,
incompetent to stand trial. We perceive no error in the PCRA
court’s dismissal of this claim, and decline to find that counsel
was ineffective for failing to seek a competency hearing.

Id. at 236-37 (some citations and quotation marks omitted).

Here, Appellant cites to counsel’s awareness of his mental illness in

support of his claim that counsel was ineffective for failing to request a

competency hearing. However, “a mental or physical disorder must interfere

with one’s ability to understand the proceedings or to assist counsel before it

is sufficient to constitute incompetency.” Commonwealth v. Hughes, 555

A.2d 1264, 1271 (Pa. 1989). Appellant does not assert that he was unable to

understand the nature of the proceedings against him or assist counsel.

Thus, as in Rainey, “even if counsel had no reasonable basis to decline to

pursue a competency evaluation,” Appellant “fails to articulate how he was

prejudiced because he cannot establish that had counsel requested an

evaluation and hearing, the outcome [] would have changed.” 928 A.2d at

236.

The PCRA court dismissed Appellant’s claim because “[A]ppellant

presented no evidence or support for his claim that his mental illness

prevented him from participating in his defense.” PCRA Court Opinion,

2/21/2019, at 20. Upon review, the PCRA court’s conclusion is supported by

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the record and free from legal error. Because Appellant failed to establish

prejudice, the PCRA court properly dismissed this claim.

Ineffective Assistance of Trial Counsel: Plea Negotiation

Appellant next argues that trial counsel rendered ineffective assistance

for failing to negotiate a plea of guilty but mentally ill and a sentence of less

than life imprisonment. Appellant’s Brief at 14-16. Appellant has set forth no

proof that (1) there was any plea deal on the table; (2) the Commonwealth

would have been willing to negotiate this specific deal; (3) Appellant would

have been willing to enter into such a deal; or (4) the trial court would have

accepted such a plea. Because the underlying claim lacks merit, the PCRA

court did not err in dismissing this claim.

Ineffective Assistance of Trial Counsel: Testimony Stipulations

Appellant next argues that the PCRA court erred in dismissing his

claims that trial counsel was ineffective for stipulating to the testimony of

Dr. Gary Collins and Sergeant McCoy, thereby “creating an automatic

presumption of guilt” because he was not afforded the opportunity to cross-

examine these witnesses. Appellant’s Brief at 17-23.

By way of background, the Commonwealth and trial counsel stipulated

to the admission of Dr. Collins’s autopsy report. Additionally, they stipulated

to his proposed testimony as follows.

[I]f called to testify, Dr. Collins would testify that he did perform
the postmortem examination of Karima Ballard, age 32, black
female, who was five-foot-one-inch and 113 pounds. That his
findings were that she suffered a stab wound to the left neck.

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The entrance was the lateral left neck. The path was the skin
subcutaneous tissue and muscle of the left side of the neck. Her
isthmus of thyroid, the direction of the injury was rightward,
forward and downward at a depth of approximately five to seven
centimeters.

He made other findings contained in his report that were
associated with hemorrhage into her lateral neck, hemo
aspiration and hemorrhage into her posterior mediastinum. She
suffered stab wounds to her left ear and abrasions to her
extremities, back and abdomen, but that stab wound was the
cause of death, and so the manner of death, of course, then was
homicide.

***

Also contained in [the medical examiner’s report] were, of
course, the toxicology with results of Karima Ballard. Present in
her blood was atropine, benzoylglycine, cocaine and ecgonine
methyl ester and levamisole.

N.T., 10/3/2011, at 108-09. As to Sergeant McCoy, the Commonwealth and

trial counsel stipulated to his testimony as follows, because the

Commonwealth believed live testimony would have been redundant to the

testimony of Officer Brian Saunders.

If called to testify, Sergeant McCoy would testify that he pushed
the bathroom door open and then the offender pushed the door
closed. He attempted to push the door open again and got it
partially open and he observed the offender on top of the victim
with a knife in his hand. It was a silver kitchen knife about six to
eight inches long.

***

He would also testify he instructed the offender to drop the knife
at which point he did and then threw his hand up.

Id. at 106-07.

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According to Appellant, the stipulations permitted the Commonwealth

to make unqualified medical interpretations and conflicted with the

testimony of Officer Brian Saunders regarding his giving of chest

compressions to Ballard while she was breathing. Appellant’s Brief at 19-21.

As such, he argues he was denied a fair trial by counsel’s abdication of the

opportunity to cross-examine Dr. Collins and Sergeant McCoy on these

issues. Id. at 21-23.

In dismissing the claims regarding Dr. Collins, the PCRA court

explained as follows.

Here, it is clear [] that trial counsel’s decision [] to agree
to the introduction of the autopsy report and the testimony of
Dr. Collins by way of stipulation without first consulting with
Appellant was a decision fitting within those matters which
counsel may decide without consulting his client. This is
especially so because the reports contained no exculpatory
information that could have been elicited by cross-examination
and there is no dispute as to the accuracy of the information
contained therein.

Moreover, even if there were vigorous attempts to revive
the victim, [] intervening events do not excuse [a defendant’s]
criminal acts when a defendant’s acts were the direct cause of
the intervening event. Thus, Appellant cannot escape liability
because his act started an unbroken chain of causation leading
to the death of the victim, even if the subsequent event was the
immediate cause of her death.

***

Instantly, the admission of the autopsy report did not
make the outcome a foregone conclusion.

PCRA Court Opinion, 2/21/2019, at 8-9, 11 (capitalization altered; citations

omitted).

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As to Sergeant McCoy,

Appellant argued that trial counsel should not have stipulated to
the testimony because Sergeant McCoy was the senior officer at
the scene and thus, according to Appellant, had more experience
in observing highly charged situations as in the instant case.
Appellant further asserts that because the sergeant was the first
law enforcement officer to arrive at the scene, he was in a
position to explain the nature of the sounds the other officers
heard coming from the bathroom.

Th[e PCRA] court deemed that this claim lacked merit primarily
because Appellant failed to establish that counsel’s actions in
stipulating to the sergeant’s testimony prejudiced him. This is so
because the evidence of Appellant’s guilt was overwhelming.
Witnesses saw him assaulting the victim and a police officer
observed him stab the victim. Moreover, the stipulation merely
reiterated other testimony presented by the Commonwealth. …

Id. at 11-12 (capitalization altered; citations and quotation marks omitted).

Upon review, we hold that the PCRA court’s conclusions are supported

by the record and free from legal error. Because the underlying claims lack

merit and Appellant failed to establish prejudice, the PCRA court properly

dismissed these claims.

Ineffective Assistance of Trial Counsel: Perjury

Appellant next argues that the PCRA court erred in dismissing his claim

that trial counsel rendered ineffective assistance by committing perjury.

Specifically, Appellant avers that trial counsel told the trial court that Chris

Crawford, a witness Appellant desired to call, did not appear for trial.

Appellant’s Brief at 24, 27. According to Appellant, Crawford was present at

trial because he had “signed in.” Pro se PCRA Petition, 9/3/2014, at 3a-2.

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“A person is guilty of perjury[] if in any official proceeding he makes a

false statement under oath or equivalent affirmation, or swears or affirms

the truth of a statement previously made, when the statement is material

and he does not believe it to be true.” 18 Pa.C.S. § 4902(a). Because trial

counsel was not under oath or affirmation, she cannot be guilty of perjury,

even if she did not believe her statement about Crawford’s presence to be

true. Thus, Appellant’s underlying claim lacks merit, and the PCRA court

properly dismissed this claim of ineffective assistance of counsel.7

Ineffective Assistance of Trial Counsel: Cross-Examination

Appellant next argues that the PCRA court erred in dismissing his claim

that trial counsel rendered ineffective assistance of counsel for failing to

cross-examine adequately Officer Linda Smith regarding her stating for the

first time at trial that she witnessed Appellant stab Ballard. Appellant’s Brief

at 28.8

In dismissing this claim, the PCRA court explained as follows.

Relief was denied with respect to this issue because a review of
the record indicates that Appellant failed to prove that counsels’
alleged error prejudiced him. The evidence of guilt in this case

7 Because Appellant only argues that counsel perjured herself, not that she
was ineffective for failing to call Crawford, we do not review Appellant’s
claim under that standard.

8 Within his brief, Appellant also assails counsel’s cross-examination of
Officer Saunders, as well as counsel’s failure to present Appellant’s alternate
theory of events. Appellant failed to present these claims to the PCRA court,
and therefore they are waived. Santiago, 855 A.2d at 691.

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was overwhelming and Appellant would have been found guilty
of the crimes herein even had counsel presented evidence
establishing that the officer never told anyone prior to the day
she testified in this case that she witnessed Appellant stab the
victim. The facts show that Appellant was caught in the act of
killing the victim and the officer’s testimony was only one part of
a web of evidence implicating Appellant in the crime.

PCRA Court Opinion, 2/21/2019, at 14 (capitalization altered).

Our review of the record indicates that counsel questioned Officer

Smith regarding her failure to include her observations in her initial police

report or in any subsequent report or interview. N.T., 10/3/2011, at 42, 44.

Although brief, counsel’s cross-examination was pointed and effective,

particularly as to Officer Smith’s stated observations of Appellant’s stabbing

Ballard and her failure to report that prior to trial. Because the underlying

claim lacks merit Appellant failed to prove prejudice, we hold that the PCRA

court’s conclusions are supported by the record and free from legal error.

Thus, the PCRA court properly dismissed this claim.

Ineffective Assistance of Trial Counsel: Kirben’s Testimony

Appellant next argues that the PCRA court erred in dismissing his claim

that counsel was ineffective for failing to object to Kirben’s testimony

regarding her injuries, which he claims were unsupported by her medical

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records and therefore objectionable. Appellant’s Brief at 33-34.9 In

dismissing this claim, the PCRA court explained as follows.

A review of the record indicates that Kirben testified that
she suffered a few cuts, one of which was to her hand, which
was inflicted during a struggle with Appellant for the knife she
retrieved from the kitchen[,] and another she suffered to her
arm when she ran by Appellant and he chased her to the front
door. Kirben added that during the incident[,] Appellant was
saying that he was[] “tired of us bitches, and basically that
everything was going to stop today[,]” and that he was going to
get Kirben and her children because she was “nosey.”

Relief was denied with respect to this claim because
Appellant failed to prove that Kirben’s hospital records
contradicted her in-court testimony. Kirben did not exaggerate
the severity of her injuries when she testified and Appellant did
not include Kirben’s medicals records or cite to them in his pro
se PCRA petition. Therefore, the PCRA court lacked a basis to
grant him relief.

In any event, the PCRA court would have denied Appellant
relief on this claim even had there been a discrepancy in the
medical records because it was clear to the court that Appellant
acted with the intent to cause Kirben serious bodily injury, and
thus, was guilty of the crime of aggravated assault as a felony of
the first degree. …

Instantly, Appellant not only threatened Kirben, he then cut her
with the knife as she fled from him and then he chased her to
the door. His actions, coupled with his threats, established that
he acted with the intent necessary to convict him of aggravated
assault. Thus, even had Kirben’s medical records shown that her
injuries were less serious than she said, the PCRA court would
have still convicted Appellant of committing aggravated assault.

9 Again, Appellant raises a claim on appeal that was not presented to the
PCRA court. See Appellant’s Brief at 35 (arguing counsel rendered
ineffective assistance by failing to investigate and present Kirben’s medical
records). Accordingly, this claim is waived. Santiago, 855 A.2d at 691.

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PCRA Court Opinion, 2/21/2019, at 15-16 (party designations altered;

citations omitted).

Upon review, we hold that the PCRA court’s conclusion that Appellant

failed to establish prejudice is supported by the record and free from legal

error. Thus, the PCRA court properly dismissed this claim.

Ineffective Assistance of Trial Counsel: Miranda10

Appellant next argues that the PCRA court erred in dismissing his claim

that trial counsel rendered ineffective assistance by failing to object to

evidence obtained in violation of Miranda. Appellant’s Brief at 37.

Specifically, Appellant references the admission of his statement regarding

whether Ballard was dead yet. Id. at 38.

Our Supreme Court has explained Miranda protections as follows.

To protect an individual’s Fifth Amendment privilege against self-
incrimination, the United States Supreme Court has held that,
before an individual in police custody may be interrogated, he
must first be informed, in clear and unequivocal terms, that he
has the right to remain silent, that anything he says can and will
be used against him in court, and that he has the right to consult
with counsel and to have counsel present during interrogation,
and, if he is indigent, counsel will be appointed for him.

Commonwealth v. Frein, 206 A.3d 1049, 1064 (Pa. 2019) (footnote

omitted) (citing Miranda, 384 U.S. at 467-69). Thus, a “statement made by

a criminal defendant during a custodial interrogation who has not

been apprised of the warnings required by Miranda, generally must be

10 Miranda v. Arizona, 384 U.S. 436 (1966).

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suppressed.” Commonwealth v. Bishop, 217 A.3d 833, 835-36 (Pa.

2019).

In dismissing Appellant’s claim, the PCRA court offered a two-fold

analysis. First, the PCRA court denied relief because Appellant’s claim was

undeveloped. PCRA Court Opinion, 2/21/2019, at 17-18.

Second, the claim was deemed to lack merit because
Appellant did not undergo custodial interrogation. Miranda
warnings are only required prior to custodial interrogation.
Although a remark Appellant made was admitted into evidence,
that remark was admissible in the absence of Miranda warnings
because it was volunteered and not induced by authorities. Thus,
Appellant’s volunteered statements need not have been
preceded by Miranda warnings to be admissible.

Id. at 18 (capitalization altered; citations omitted).

Upon review, we hold that the record supports the PCRA court’s

conclusions and they are free from legal error. Because Appellant’s

spontaneous statement was not the product of an interrogation subject to

Miranda, counsel cannot be deemed ineffective for failing to object on

Miranda grounds. See Commonwealth v. Odrick, 599 A.2d 974, 976 (Pa.

Super. 1991) (holding that “statements made by [Odrick] after he was

handcuffed were not a result of custodial interrogation but instead were

‘blurt outs’ and thus were admissible despite the fact Miranda warnings

were not given”). Accordingly, the PCRA court properly dismissed this claim.

Ineffective Assistance of Trial Counsel: Commonwealth’s Closing Argument

Appellant next argues that the PCRA court erred in dismissing his claim

of ineffective assistance of trial counsel for failing to object to prejudicial

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statements made during the Commonwealth’s closing arguments regarding

an alleged motive, which Appellant contends was not supported by the

evidence. Appellant’s Brief at 40. Specifically, Appellant claims the

prosecutor’s statements regarding Appellant’s motive, the size of the incision

on Ballard’s neck, and the nature of the wounds to Kirben were “falsified

accounts of evidence, utilized to inflame the passions of the judicial

officer[.]” Id. at 41-42.

Regarding prosecutorial misconduct in a bench trial, our Supreme

Court has held as follows.

[W]e will not assume that a verdict rendered by a jurist was
influenced by [] extraneous prejudicial remarks and comments,
rather it must be demonstrated by the record that the verdict
was indeed the product of that corrupt source. Where [] the
weight of the competent evidence, much of it uncontroverted,
clearly supports the verdict there can be no legitimate basis for
assuming that it was tainted by the prosecutorial misconduct.

Commonwealth v. Harvey, 526 A.2d 330, 333 (Pa. 1987) (emphasis in

original).

In dismissing this claim, the PCRA court explained as follows.

Relief was properly denied with respect to this claim because
th[e trial] court was aware of the evidence and was not
influenced or swayed by the comments [Appellant] complains of
in his pro se PCRA petition. When the trial court sits as the
factfinder, the presumption in the law is that the court will be
able to ignore prejudicial information in reaching its verdict.

Here, th[e trial] court did just that and ignored any alleged
improprieties by the prosecutor. Therefore, counsel’s failure to
object to the prosecutor’s [] comments caused him no
prejudice[.]

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PCRA Court Opinion, 2/21/2019, at 18-19 (capitalization altered; citations

omitted).

Given the ample evidence in this case, Appellant has failed to

demonstrate that the verdict was based on the prosecutor’s comments

instead of the evidence presented. Thus, the PCRA court did not err in

dismissing this claim.

Ineffective Assistance of PCRA Counsel

Appellant next argues that PCRA counsel rendered ineffective

assistance by failing to raise a claim that direct appeal counsel rendered

ineffective assistance in failing to challenge the weight and sufficiency of the

evidence. Appellant’s Brief at 47.

[A]bsent recognition of a constitutional right to effective
collateral review counsel, claims of PCRA counsel ineffectiveness
cannot be raised for the first time after a notice of appeal has
been taken from the underlying PCRA matter.” Commonwealth
v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012). A petitioner’s
failure to raise an ineffectiveness of counsel claim after receiving
Rule 907 notice results in waiver of the claim. Commonwealth
v. Pitts, 981 A.2d 875, 880 n. 4 (Pa. 2009).

Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa. Super. 2015)

In the instant case, Appellant filed a response to the PCRA court’s Rule

907 notice. However, he did not raise a claim of ineffective assistance of

PCRA counsel therein. Although Appellant asserted in his response that PCRA

counsel has ignored and abandoned him, Appellant did not claim that PCRA

counsel rendered ineffective assistance by failing to assert direct appeal

counsel’s ineffectiveness. “In the framework of Rule 907 notice, the law

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makes clear Appellant had to preserve his claims of PCRA counsel’s

ineffectiveness in a response to the notice.” Smith, 121 A.3d at 1056

(citations omitted). Accordingly, this claim is waived.

Ineffective Assistance of Trial Counsel: Victim Impact

Finally, we review whether the PCRA court erred in dismissing

Appellant’s claim that trial counsel rendered ineffective assistance for failing

to object to victim impact testimony by Officer Ryan Saunders. Appellant’s

Brief at 44-45. We consider this claim mindful of the following.

“The admissibility of evidence, including victim impact evidence, rests

with the sound discretion of the trial court.” Commonwealth v. King, 182

A.3d 449, 455 (Pa. Super. 2018) (citation and quotation marks omitted).

The purpose of a victim impact statement is to allow victims of
crime to inform the court of how the crime impacted their lives.
In 1998, our General Assembly promulgated a Bill of Rights for
crime victims which provides them the right:

“to have opportunity to offer prior comment on the
sentencing of a defendant... to include the
submission of a written and oral victim impact
statement detailing the physical, psychological and
economic effects of the crime on the victim and the
victim’s family. The written statement shall be
included in any predisposition or presentence report
submitted to the court. Victim-impact statements
shall be considered by a court when determining
the... sentence of an adult.”

18 P.S. § 11.201(5) [].

The Supreme Court of the United States stated that the purpose
of victim impact evidence is to show the victim’s uniqueness as a
human being and to illustrate that a particular individual’s loss
has a distinct effect on society. Payne v. Tennessee, 501 U.S.

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808, 824 (1991), Similarly, in Pennsylvania, this Court has
emphasized that crime victims in the Commonwealth have the
“right to breathe life with all its emotion into their victim impact
statements.” Commonwealth v. Penrod, 578 A.2d 486, 491
(Pa. Super. 1989). In other words, the purpose of victim impact
statements is to personalize the crime and to illustrate the
human effects of it. Id.

The text of [subs]ection 11.201(5) explicitly identifies three
types of information or evidence that the speaker may attest to
which are: (1) the defendant’s sentencing, (2) the physical,
psychological and economic effects on the victim and (3) the
victim’s family. Additionally, the sentencing court must consider
“the gravity of the offense as it relates to the impact on the life
of the victim and on the community.” 42 Pa.C.S. § 9721 [].
Hence, the court should consider the information set forth by the
victim concerning the sentencing, the impact of the crime on
himself or his family, and finally the impact the offense had on
the community.

Id. (citation format altered). The Crime Victims Act defines “victim” to

include the following individuals.

(1) A direct victim.

(2) A parent or legal guardian of a child who is a direct victim,
except when the parent or legal guardian of the child is the
alleged offender.

(3) A minor child who is a material witness to any of the
following crimes and offenses under 18 Pa.C.S. (relating to
crimes and offenses) committed or attempted against a member
of the child’s family:

Chapter 25 (relating to criminal homicide).

Section 2702 (relating to aggravated assault).

Section 3121 (relating to rape).

(4) A family member of a homicide victim, including stepbrothers
or stepsisters, stepchildren, stepparents or a fiance, one of
whom is to be identified to receive communication as provided

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for in this act, except where the family member is the alleged
offender.

18 P.S. § 11.103.

By way of background, Officer Saunders testified as a fact witness

during Appellant’s bench trial as one of the officers who responded to the

scene and transported Ballard to the hospital. Following the court’s rendering

of its verdict, Officer Saunders testified at Appellant’s sentencing hearing, as

follows.

ASSISTANT DISTRICT ATTORNEY [(ADA)]: I do have victim
impact, Your Honor, if you will entertain it.

THE COURT: Yes.

[ADA]: Thank you. I would first call Officer Ryan Saunders to the
stand.

***

[ADA]: Officer Saunders, this is your opportunity to tell [the trial
court] how this crime impacted you. Would you like to take that
opportunity?

THE WITNESS: Yes, Ma’am.

[ADA]: Go ahead.

THE WITNESS: Your Honor, this crime impacted me in a way
that’s not really normal. I’ve been a police officer going on eight
years now. I’ve seen a lot of bad things, but in relation to them
it was something I never seen or experienced before in my life.
It got to a point after this crime that my sergeant at the time[]
had to place me into counselling due to the fact of the vision of
the crime scene and the consistent picture of the victim, her last
breath, and knowing that she was killed in such a horrific way
that her last breath wasn’t by bedside with her family, it wasn’t
at home with her family, it wasn’t really even in a hospital. It
was in the back seat of a police car, and she died in my arms,

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and that affected me in such a way that I had to seek
counselling. I had to seek counselling. Couldn’t gather my notes
for about two or three weeks, and I actually had to be, you
know, my sergeant helped me. I had to be taken off the street. I
had to be kind of brought back to a level to the point of being
taught how I learned in my studies as far as going to the police
academy of not taking the job home with me, and in this
particular incident it wasn’t such the case.

N.T., 10/4/2011, at 40-42. The court then heard victim impact testimony

from Ballard’s family members and Kirben, as well as statements from

Appellant and his mother. Following this, the court told Appellant that,

“[q]uite frankly, in the number of homicides I’ve heard over six years, I’ve

never seen police officers affected so intensely.” Id. at 53.

In his pro se PCRA petition, Appellant claimed that the trial court erred

in allowing Officer Saunders to offer victim impact testimony when he was

not a victim, and that the record showed the testimony “affected the

[c]ourt’s decision.” Pro se PCRA Petition, 9/3/2014, at 3a-6. Counsel agreed

with Appellant that the trial court should not have permitted Officer

Saunders to offer victim impact testimony, but concluded that Appellant was

not prejudiced because Appellant was sentenced to concurrent terms of

incarceration for the crimes of aggravated assault and PIC. Turner/Finley

Letter, 6/6/2018, at 15. The PCRA court dismissed Appellant’s claim

“because Officer Saunders was a fact witness and not a victim[ ]impact

witness. He did not give victim impact testimony. The fact that while

testifying he appeared to have been affected by what he saw was not victim

impact testimony[].” PCRA Court Opinion, 2/21/2019, at 21.

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Contrary to the PCRA court’s conclusion, it is evident from the record

that Officer Saunders was offered and accepted as a victim impact witness

during Appellant’s sentencing hearing. See N.T., 10/4/2011, at 40-42.

Unquestionably, Officer Saunders did not qualify as a victim in this case.

Therefore, we hold that the trial court erred in allowing Officer Saunders to

offer victim impact testimony at Appellant’s sentencing hearing. Additionally,

the record indicates that the trial court considered this testimony prior to

imposing Appellant’s sentence. See id. at 53. Although Appellant received a

mandatory sentence of life imprisonment without parole for his first-degree

murder conviction, we cannot conclude based on the record before us that

the improper victim impact testimony did not affect Appellant’s concurrent

sentences for aggravated assault and PIC. Specifically, the record is devoid

of Appellant’s sentencing guidelines, so we do not know the range into which

these sentences fall. Moreover, it was only after imposing Appellant’s

sentence that the trial court inquired about Appellant’s prior record score, to

which the ADA responded, “I think he’s a three or a two.” Id. at 55-56.

Under these circumstances, we conclude that the PCRA court erred in

dismissing this claim, and Appellant is entitled to a new sentencing hearing.

Having concluded that the PCRA court erred in dismissing Appellant’s

victim-impact-testimony claim, we reverse only that part of the PCRA court’s

order, vacate Appellant’s judgment of sentence, and remand for

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resentencing. As to Appellant’s remaining claims, we affirm the PCRA court’s

order.

Order affirmed in part and reversed in part. Judgment of sentence

vacated. Case remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judge King concurs in the result.

Judge Lazarus notes dissent.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/26/21

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