Com. v. Davis, G.

J-S12008-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY DAVIS :
:
Appellant : No. 608 EDA 2021

Appeal from the PCRA Order Entered March 9, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002634-2013

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 8, 2022

Appellant, Gary Davis, appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. After careful review, we affirm.

Appellant’s convictions stemmed from the events of December 8, 2012,

at the Easy Corner Bar in Philadelphia, where Appellant was caught on video

fatally shooting the victim, Irving Vaughn. As summarized by Appellant,

[i]t was not disputed that Appellant shot and killed the decedent
at trial. Instead, Appellant asserted that he acted in self-defense,
and portions of the incident were captured by the bar’s video
surveillance. … In sum, Philadelphia Police responded to a
shooting at the Easy Corner Bar in Philadelphia on December 8,
2012. When police arrived, they found the decedent suffering
from gunshot wounds to the neck, torso, and finger. They also
obtained a video from the bar’s manager which showed much of
the incident.

The video showed Appellant entering the bathroom of the bar.
The decedent, seemingly guided by Appellant’s female cousin,
walked into the bathroom to have a conversation with Appellant.
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The cousin did not believe that there was any tension or issue
between Appellant and the decedent. The video did not show what
happened in the bathroom, but eventually, the door to the
bathroom flew open. It was then possible to see Appellant and
the decedent struggling over a firearm. Appellant eventually shot
the decedent, put a gun in his waistband, and left the bar.
Appellant testified that he acted in self-defense and had shot the
decedent with a gun that Appellant wrestled away from the
decedent. He testified that he did not start the fight and that he
thought the two men were just going to have a conversation. No
witnesses testified to the contrary.

Appellant’s Brief at x-xi. A thorough review of the facts adduced at trial was

provided by the trial court during the litigation of Appellant’s direct appeal.

See Trial Court Opinion, 3/4/16, at 2–21.

Following a bifurcated jury/nonjury trial held in early 2015, Appellant

was convicted of third-degree murder, reckless endangerment, possessing an

instrument of crime, and two firearm violations.1 On August 18, 2015, the

trial court sentenced Appellant to an aggregate term of 30-60 years’

incarceration. After Appellant’s post-sentence motion was denied by

operation of law, he filed a timely notice of appeal. This Court affirmed

Appellant’s judgment of sentence. Commonwealth v. Davis, 159 A.3d 48

(Pa. Super. 2016) (unpublished memorandum). Appellant did not seek further

review with our Supreme Court.

____________________________________________

1 A jury convicted Appellant of all these crimes, but for one of the firearm
violations, on February 23, 2015. “On that same day, [Appellant] executed a
valid waiver of his right to a jury trial and [the trial court] found him guilty”
of the remaining firearm offense. PCRA Court Opinion (“PCO”), 6/29/21, at
1.

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Appellant filed, pro se, the at-issue PCRA petition on July 25, 2017, and

appointed counsel filed amended PCRA petitions on Appellant’s behalf on

February 27, 2019, and November 26, 2019 (collectively “the petition”). On

January 21, 2021, pursuant to Pa.R.Crim.P. 907, the PCRA court issued notice

of its intent to dismiss the petition without a hearing. On March 10, 2021, the

court dismissed the petition.

Appellant filed a timely notice of appeal on March 29, 2021. He then

filed a Pa.R.A.P. 1925(b) statement on May 26, 2021, although the PCRA court

did not order him to do so. The court issued its Rule 1925(a) opinion on June

29, 2021.

Appellant now presents the following questions for our review:

I. Whether the PCRA court erred in denying [the petition]
without an evidentiary hearing where trial counsel and
appellate counsel failed to properly challenge the
prosecutor’s opening statement assertion that Appellant had
the face of a murderer?

II. Whether the PCRA court erred in denying [the petition]
without an evidentiary hearing where trial and appellate
counsel were ineffective in failing to challenge the trial
court’s decision to admit the surprise testimony of the
surrogate assistant medical examiner that the decedent was
shot from behind instead of from the front where that
testimony was beyond the scope of the expert report?

III. Whether the PCRA [c]ourt should have held an evidentiary
hearing on the assertion that Appellant’s biographical report
had been altered to suggest that he was taller than he really
is, thereby improperly weakening his clam of self-defense?

Appellant’s Brief at vii.

This Court reviews

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an order dismissing a petition under the PCRA in the light most
favorable to the prevailing party at the PCRA level. This review is
limited to the findings of the PCRA court and the evidence of
record. We will not disturb a PCRA court’s ruling if it is supported
by evidence of record and is free of legal error. This Court may
affirm a PCRA court’s decision on any grounds if the record
supports it. Further, 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 plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).

Here, the record does not include a PCRA hearing, because the PCRA

court declined to hold one. In these circumstances, we note that

the right to an evidentiary hearing on a post-conviction petition is
not absolute. It is within the PCRA court’s discretion to decline to
hold a hearing if the petitioner’s claim is patently frivolous and has
no support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.

Commonwealth v. Khalifah, 852 A.2d 1238, 1239–40 (Pa. Super. 2004)

(citations omitted).

In his first two claims, Appellant asserts that his prior attorneys provided

ineffective assistance of counsel (“IAC”). In reviewing IAC claims, we

begin with the presumption that counsel rendered effective
assistance. To obtain relief on a claim of ineffective assistance of
counsel, a petitioner must rebut that presumption and
demonstrate that counsel’s performance was deficient, and that
such performance prejudiced him. Strickland v. Washington,

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466 U.S. 668, 687–91 (1984). In our Commonwealth, we have
rearticulated the Strickland Court’s performance and prejudice
inquiry as a three-prong test. Specifically, a petitioner must
show: (1) the underlying claim is of arguable merit; (2) no
reasonable basis existed for counsel’s action or inaction; and (3)
counsel’s error caused prejudice such that there is a reasonable
probability that the result of the proceeding would have been
different absent such error. Commonwealth v. Pierce, 527
A.2d 973, 975 (Pa. 1987).

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citations

reformatted, some internal citations omitted).

I

Appellant first claims that his trial and/or direct-appeal attorney failed

to properly challenge a statement made during the Commonwealth’s opening

regarding Appellant’s appearance. During that opening statement, the

prosecutor told the jury:

I sometimes wonder in my job, and this is maybe like an
occupational hazard, but I think about murder a lot. It’s what I
do. I think about it a lot, probably not very healthy. I think about
when a person commits murder, when a person takes life from
another violently, I wonder to myself—

[At this point, the trial court overrules defense counsel’s brief
objection to “what the Commonwealth wonders” as not being
“appropriate” for an opening statement.]

I wonder what is the look on the person’s face, because I don’t
know. I have an idea from movies, TV, but I don’t know. What
is a look of a person who rips life from another? Is it disbelief? Is
it panic? Is it fear? Is it horror?

Well, if for some reason any of you have ever thought or wondered
about that moment, you have come to the right place because
[Appellant] is on tape. Yeah, it’s on tape.

You will see [Appellant]’s face, his face the moment he murdered
Irving Vaughn, shooting him four times. Folks, it’s cold. There’s
no panic. There’s no fear. It’s ice. [Appellant] stood over Irving

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Vaughn’s lifeless body, tucking that gun under his sweater with
ice in his veins, no emotion. And he walked off, sauntered off out
of that bar. It’s on video.

N.T. Trial, 2/10/15, at 54-55. Appellant’s trial counsel did not make any

further objection to these remarks.

Appellant argues that the Commonwealth’s opening statement to the

jury constituted misconduct because the “prosecutor described her personal

feelings to the jury and expressed her personal belief that Appellant had the

face of a murderer. This was a statement in which she expressed an improper

personal opinion which was not supported by the evidence.” Appellant’s Brief

at 8. Appellant maintains that his appellate counsel provided IAC by failing to

raise this prosecutorial misconduct claim on direct appeal. Alternatively, to

the extent that the issue was not adequately preserved at trial for purposes

of review on direct appeal, Appellant claims that trial counsel provided IAC by

failing to preserve it. Appellant further asserts that the merit of the underlying

claim of prosecutorial misconduct is supported by our Supreme Court’s

decision in Commonwealth v. Capalla, 185 A. 203 (Pa. 1936).

As an initial matter, we conclude that appellate counsel did not provide

IAC in the circumstances of this case. Trial counsel’s limited and debatably

premature objection did not fully encapsulate the argument Appellant now

raises regarding the nature of the prosecutor’s purported misconduct during

the Commonwealth’s opening statement. Thus, the matter was effectively

waived for review on direct appeal. As such, counsel cannot be deemed

ineffective for failing to raise a claim on direct appeal that had been waived at

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trial. See Commonwealth v. Spotz, 18 A.3d 244, 278 (Pa. 2011) (holding

“[t]here is no merit to [a] claim that appellate counsel was ineffective for

failing to raise, on direct appeal, a waived claim of trial court error related to

[a] prosecutor’s comments”). This is axiomatic because it is “elementary that

issues not preserved for appellate review … will not be considered by an

appellate court.” Commonwealth v. McKenna, 383 A.2d 174, 179 (Pa.

1978).

Consequently, we turn to consider Appellant’s claim that trial counsel

provided IAC by not challenging the entirety of the portion of the prosecutor’s

opening statement that opined on Appellant’s appearance as it relates to his

culpability.

An IAC claim

grounded in trial counsel’s failure to object to a prosecutor’s
conduct may succeed when the petitioner demonstrates that the
prosecutor’s actions violated a constitutionally or statutorily
protected right, such as the Fifth Amendment privilege against
compulsory self-incrimination or the Sixth Amendment right to a
fair trial, or a constitutional interest such as due process. To
constitute a due process violation, the prosecutorial misconduct
must be of sufficient significance to result in the denial of the
defendant’s right to a fair trial. The touchstone is fairness of the
trial, not the culpability of the prosecutor. Finally, not every
intemperate or improper remark mandates the granting of a new
trial; reversible error occurs only when the unavoidable effect of
the challenged comments would prejudice the jurors and form in
their minds a fixed bias and hostility toward the defendant such
that the jurors could not weigh the evidence and render a true
verdict.

Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012) (cleaned up).

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Thus, in order for Appellant to be entitled to relief, we first consider

whether the prosecutor’s comments were forbidden due to their impact on a

constitutionally or statutorily protected right. Second, if the comments were

prohibited, we then consider whether they were so egregious that the

“unavoidable effect” was to create in the jurors’ minds “a fixed bias and

hostility toward” Appellant that undermined the fairness of his trial. Id.

The PCRA court determined that the prosecutor’s comments were not

improper:

These comments were appropriate since the prosecutor intended
to present to the jury a video of [Appellant’s] shooting the victim.
The jury would be able to view the video for themselves, observe
[Appellant]’s demeanor, and draw their own conclusions.
Moreover, the prosecutor did not improperly label [Appellant] “a
murderer;” the Commonwealth’s position at trial was that
[Appellant] murdered Irving Vaughn.

PCO at 6. The court further noted that “this comment was based upon

evidence the prosecutor planned to introduce at trial….” Id. at 7. The

Commonwealth also maintains that “nothing in the prosecutor’s opening

statement rose to the level of prosecutorial misconduct” and that the

“prosecutor was commenting on the evidence she intended to present at

trial—a video that showed [Appellant] killing the victim.” Commonwealth’s

Brief at 12.

Appellant argues that the prosecutor’s comments “involved her own

personal opinion of guilt, an inappropriate claim of expertise as to what a

murderer’s face looks like, and an attempt to stigmatize Appellant and unfairly

inflame the passions of the jury against him.” Appellant’s Brief at 5. Appellant

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further claims our Supreme Court’s decision in Capalla is “directly on point[.]”

Id. at 8.

In Capalla, our Supreme Court held that Capalla was entitled to a new

trial when the prosecutor described him as a “cold-blooded killer” before the

jury. However, in the intervening years, the law significantly evolved from

our Supreme Court’s ruling in Capalla, culminating with the Hight Court’s

holding in Commonwealth v. Clancy, 192 A.3d 44 (Pa. 2018). In Clancy,

addressing the same language at-issue in Capalla, our Supreme Court held

that automatic reversal is not required where the statement of prosecutor

under consideration is tethered to the facts of the case and the

Commonwealth’s burden to prove each element of the charged offenses. The

Clancy Court explained:

Consistent with our clear departure from Capalla’s rigid standard,
and mindful of our concomitant allowance of oratorical flair, we
hold that offense-centric statements generally are permissible.
These are statements that speak to the elements of the particular
charges levelled against the defendant and the evidence
necessary to prove those elements at trial, such as those at issue
in Hall[2] and Chamberlain.[3] The prosecutor must be free to
argue that the facts of record establish every element of the crime
charged, and must be free to respond fairly to the arguments of
the defense. Thus, we should not preclude or condemn a
prosecutor’s characterizations of the defendant that are
both based upon the record and that inherently inform
elements of an offense at issue, especially where the remarks
constitute a fair response to defense counsel’s argument.
However, when statements deteriorate into impermissible
____________________________________________

2 Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997).

3 Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011).

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characterizations and inflammatory name-calling that are
divorced from the record or irrelevant to the elements of the crime
at issue, they are substantially unwarranted and must be
scrutinized for prejudicial effect.

Clancy, 192 A.3d at 65 (emphasis added).

Appellant contends that “this was not the arguably fair commentary at

issue in Clancy but instead [the prosecutor’s] own personal opinion that

Appellant had the face of a murderer. The prosecutor in Clancy did not talk

about their own personal feelings and thoughts, making that case

distinguishable.” Appellant’s Brief at 11.

First, we disagree with Appellant’s characterization of the record insofar

as he suggests that the prosecutor made a broad generalization about

Appellant’s appearance in relation to his guilt; the prosecutor did not suggest

in a vacuum that Appellant’s face looked like that of a murder. While directly

referencing the video of the killing that would be shown to the jury, the

prosecutor invited the jury to consider the expressions on Appellant’s face.

Appellant’s accusation that the prosecutor expressed “her personal belief that

Appellant had the face of a murderer[,]” id. at 8, is inaccurate as it suggests

that the prosecutor had commented impermissibly on Appellant’s permanent

facial features as suggestive of his guilt, rather than the temporary facial

expressions he exhibited in the immediate aftermath of the shooting.

Furthermore, we conclude that Appellant’s temporary facial expression

at that time is a relevant matter for the jury consideration. As the

Commonwealth explains,

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because [Appellant] admitted to killing the victim but claimed he
acted in justifiable self-defense, his state of mind was the key
element at issue. To meet her burden of proof, the prosecutor
was well within her rights to argue that [Appellant]’s facial
expression in the video showed that he was not acting out of fear
for his own safety when he shot the victim.

Commonwealth’s Brief at 13.

We agree with the Commonwealth. The prosecutor’s statements during

her opening argument were not impermissible in the circumstances of this

case. The prosecutor’s comments on Appellant’s facial expressions were

directly tethered to video evidence that would be presented to the jury in the

Commonwealth’s case-in-chief, and also spoke to the core issue to be decided

by the jury, which was whether Appellant had acted in self-defense, or with

malice,4 in the killing of Irving Vaughn. “The prosecutor is free to argue that

the evidence leads to the conclusion of guilt, and is permitted to suggest all

favorable and reasonable inferences that arise from the evidence.”

Chamberlain, 30 A.3d at 408. Appellant’s demeanor in the immediate

aftermath of the shooting, as evidenced by his facial expressions, could give

rise to reasonable inferences regarding whether he acted in self-defense or

with malice, although it was undisputed that he killed the victim. Thus, the

prosecutor’s comments were permissible under Clancy. Accordingly, we

____________________________________________

4 “Third[-]degree murder occurs when a person commits a killing which is
neither intentional nor committed during the perpetration of a felony, but
contains the requisite malice.” Commonwealth v. Kling, 731 A.2d 145, 147
(Pa. Super. 1999). “Malice exists where there is a wickedness of disposition,
hardness of heart, cruelty, recklessness of consequences, and a mind
regardless of social duty, although a particular person may not be intended to
be injured.” Id. at 147–48 (cleaned up).

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conclude that Appellant’s first IAC claim lacks arguable merit and, therefore,

he is not entitled to relief. See Commonwealth v. Fears, 86 A.3d 795, 804

(Pa. 2014) (stating the failure “to prove any prong of this test will defeat an

ineffectiveness claim[,] and that “counsel cannot be deemed ineffective for

failing to raise a meritless claim”).

II

In his second claim, Appellant asserts that trial counsel was ineffective

for failing to object to portions of the expert testimony by the Commonwealth’s

trial expert that differed from the conclusions of the author of the autopsy

report. As background:

Dr. Gary Collins performed the autopsy on victim Irving Vaughn
and prepared the autopsy report. N.T. Trial, 2/10/15, at 124. Dr.
Albert Chu reviewed Dr. Collins’ report, photographs of the body,
toxicology reports, and the video of the shooting. Id. at 124-25,
131. Dr. Chu testified at trial as an expert in forensic pathology
since Dr. Collins was unavailable.3 Dr. Chu testified that he did
not agree with Dr. Collins’ findings that the bullet traveled from
the front to the back of the neck, stating that after his review of
the video, which Dr. Collins[] did not have access to, Dr. Chu
believed it was more likely that the bullet traveled from back to
front. Id. at 131. The Commonwealth then wanted to play the
video and ask Dr. Chu questions about it. Defense counsel
objected to Dr. Chu[’s] testifying about the video and requested a
side bar conversation, at which time he argued that the
Commonwealth was “attempting to add additional testimony to be
[sic] beyond what is in the report relating to asking this witness
about reviewing the video, and, assuming, to elicit some
additional opinions that were not provided to the defense in
discovery in relation to his review of the video.” Id. at 146-47.
The Commonwealth argued that it wanted to show the video so
Dr. Chu could explain why he did not adopt Dr. Collins’ report in
full and why he disagreed as to the entry and exit direction of the
bullet. This [c]ourt ruled that Dr. Chu could testify regarding why
his opinion differed from Dr. Collins’ based on the video since this

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testimony was already on the record and was not objected to
when he first said it. However, Dr. Chu could not add to his
testimony and opine as to when he believed Irving Vaughn
became incapacitated and unable to move after being shot. Id.
at 152-153.

3 At the time of trial, Dr. Collins no longer worked in
Philadelphia. He had left his position to begin serving as the
Chief Medical Examiner for the State of Delaware. Id. at
124.

PCO at 7-8 (citations reformatted).

Appellant contends that his trial counsel was ineffective for failing to

initially object to the portion of Dr. Chu’s testimony where he disagreed with

Dr. Collins’ autopsy report as to the trajectory of the bullet that caused the

victim’s neck wound. Appellant maintains that he was effectively ambushed

by critical expert testimony regarding the nature of a mortal wound to the

victim, because Dr. Chu’s differences of opinion with Dr. Collins were not

provided in discovery. He argues that his trial counsel could not have had a

reasonable basis for failing to object in a timely fashion to those portions of

Dr. Chu’s testimony.5 Appellant also argues that he was prejudiced by
____________________________________________

5 Appellant also argues in the alternative that, if trial counsel’s objection was
sufficient to preserve this claim, that his appellate counsel was ineffective for
failing to raise that claim on direct appeal. Here, trial counsel’s objection was
substantively on point, as he argued at trial that Dr. Chu was offering a new
and distinct opinion regarding the nature and timing of the neck wound,
effectively contradicting part of Dr. Collins’ report. See N.T. Trial, 2/10/15,
at 150-51. However, the record also demonstrates that the trial court had
denied the objection, in part, because Dr. Chu had already testified without
objection regarding his new theory about the trajectory of the neck-wound
bullet. Id. at 151-52. The court sustained Appellant’s objection insofar as it
related to Dr. Chu’s difference of opinion with Dr. Collins’ report about the
timing of the shots, as trial counsel’s objection was timely made in response
(Footnote Continued Next Page)

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counsel’s failure to object because he was not prepared to address the new

expert testimony.

Generally,

evidentiary rulings are within the general province of the trial
courts and will not be overturned by an appellate court absent an
abuse of discretion, as, for example, when the law is overridden
or misapplied. In terms of the applicable law, expert testimony is
generally admissible if: the witness has a specialized knowledge
beyond that possessed by the average layperson; such knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue; and the expert’s methodology is
generally accepted in the relevant field. See Pa.R.E. 702.

Commonwealth v. Maconeghy, 171 A.3d 707, 712 (Pa. 2017) (citation

omitted).

In criminal cases,

Pa.R.Crim.P. 573(D) provides that both parties have a continuing
duty to disclose evidence that is requested prior to trial that is
subject to disclosure … including any expert information and
reports.
…

Although there are no rules of procedure in criminal cases
precisely governing expert reports, it cannot be asserted that
either the Commonwealth or a defendant has carte blanche to
allow an expert to testify beyond the information contained in his
or her report. To hold otherwise would eviscerate the requirement
that reports be disclosed.
____________________________________________

to that testimony. Because trial counsel’s objection to Dr. Chu’s new theory
as to the bullet’s trajectory was untimely, that issue was waived for purposes
of appellate counsel’s ability to raise it on direct appeal. Thus, we consider
this claim solely with respect to trial counsel’s alleged ineffectiveness for
failing to issue a timely objection to Dr. Chu’s new theory regarding the
directionality of the bullet wound to the victim’s neck. As with Appellant’s first
IAC issue, his counsel on direct appeal cannot be deemed ineffective for failing
to raise a claim that was waived at trial.

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Commonwealth v. Roles, 116 A.3d 122, 131–32 (Pa. Super. 2015).

However, even where the Commonwealth violates the rules of discovery

by providing expert testimony at trial that exceeds the scope of the disclosed

report, a petitioner must still show that he was prejudiced in order to prevail

on an IAC claim that counsel was ineffective for failing to object to the

discovery violation. See Commonwealth v. Henry, 706 A.2d 313, 328 (Pa.

1997); see also Roles, 116 A.3d at 133 (“A discovery violation and testimony

exceeding the scope of the expert’s report … do not automatically command

a new trial. [The appellant] still must establish that the introduction of the

expert testimony caused him prejudice to the degree that it affected his trial

strategy or likely affected the outcome of the proceedings.”).

Here, the PCRA court determined that Appellant could not have been

prejudiced by counsel’s failure to object, even if the other elements of the IAC

test were met:

[Appellant] is unable to prove that he was prejudiced by the
admission of Dr. Chu’s testimony regarding the trajectory of the
bullet. In his amended petition, [Appellant] argues that he was
“denied a fair trial when Dr. Chu gave his opinion about the
direction the bullet took” because “it permitted the
Commonwealth to argue and the jury to infer that [Appellant] shot
the victim as the victim was fleeing from him in contravention of
[Appellant’s] testimony and his defense of self-defense.” [Brief in
Support of Appellant’s Amended PCRA Petition, 2/27/19, at] 14.
However, [Appellant] fails to explain how Dr.] Chu’s opinion
allegedly unraveled his entire theory of the case. During
[Appellant]’s own testimony at trial, he stated that he and victim
Irving Vaughn were engaged in “tussling” and “vicious fight[ing]”
in a small public restroom, with “[a] lot of clothes getting gripped
up and bodies slammed back and forth.” []N.T. [Trial,] 2/13/15,
[at] 58-65[]. [Appellant] testified that when he grabbed the gun

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from the victim’s waistband and fired, he was not aiming at any
“specific place on the body, just the body.” [Id. at] 66-67[].
Thus, whether the victim was facing toward or away from
[Appellant] when he shot has no bearing on [Appellant]’s self-
defense argument since [Appellant] testified that he just shot in
the direction of Vaughn’s body during the struggle. Since
[Appellant] is unable to prove that Dr. Chu’s testimony prejudiced
him, no relief is due.

PCO at 9-10.

We agree with the PCRA court. Initially, we note our general agreement

with Appellant that evidence that a victim was shot from behind will often be

influential, if not fully determinative, of a jury’s assessment of the credibility

of a defendant’s self-defense claim. Additionally, we agree with Appellant that

the failure to disclose to the defense evidence of such a fact in a timely fashion

is objectionable, and that a defense attorney’s failure to object to such

evidence might provide grounds for a new trial in some circumstances.

However, in this case it was undisputed that Appellant and the victim

were engaged in a tussle for the firearm when Appellant fired multiple shots

at the victim in quick succession. Thus, in the specific circumstances of

Appellant’s self-defense claim, the fact that one of those shots may have

entered from the back of the victim’s neck rather than the front was

immaterial to Appellant’s self-defense claim. Thus, the credibly of Appellant’s

self-defense claim turned not on the trajectory of any particular bullet (even

in small part), but instead on the credibility of Appellant’s testimony about

how the altercation began off-camera immediately preceding the shooting, as

well as other circumstantial evidence not related to the nature of the victim’s

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bullet wounds. The Commonwealth argued that Appellant drew his firearm

first, whereas Appellant testified that the victim drew first, and that he was

attempting to disarm the victim when the shots were fired as seen on the

video. With these competing narratives, the direction of the bullet through

the victim’s neck was unlikely to be a determinative factor in the jury’s

decision.

In his reply brief, Appellant emphasizes that the Commonwealth

exploited the admission of Dr. Chu’s testimony by arguing to the jury that “the

Commonwealth heavily relied on the replacement medical examiner’s novel

opinion to argue that the decedent had been immediately shot in the back of

the neck and collapsed.” Appellant’s Reply Brief at 5. He further asserts that

the prosecutor “specifically argued that the jury should not find Appellant

acted in self-defense because the decedent’s body provided a version of

events which would show that he was only shot in the back.” Id. at 3.

Appellant’s assertions misrepresent the record. In the portion of the

Commonwealth’s closing argument cited by Appellant in support of this claim,

the prosecutor acknowledged that the first shot was a bullet that caused

multiple wounds and ultimately lodged in the victim’s shoulder. N.T. Trial,

2/17/15, at 69-70 (“That’s when [Appellant] fires, and that first shot goes

right through Irving's finger, right into his shoulder”). That was not the shot

that was the subject of Dr. Chu’s disagreement with Dr. Collins. At no point

did the prosecutor assert that the victim was only shot in the back. The only

change in the sequence of events suggested by Dr. Chu’s new testimony was

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that three shots hit the victim from behind rather than two. In any event, the

jury was able to view the video of the shooting and could judge for themselves

how the sequence of shots affected the credibility of Appellant’s self-defense

claim; it was not solely reliant on the expert report as the only source of

objective evidence regarding the circumstances of the shooting. We also note

that the jury returned a not-guilty verdict on the charge of first-degree

murder, suggesting that it had rejected any inference that the shots to the

victim’s back constituted specific intent to kill the victim, even after the victim

was incapacitated by the shot to his neck.

Finally, Appellant asserts that “[h]ad trial counsel known that the

medical examiner would have an entirely different conclusion regarding the

trajectory of the bullets, he could have potentially retained his own expert,

prepared additional cross-examination, addressed the issue in opening

statements, or even considered whether to engage in plea negotiations.”

Appellant’s Reply Brief at 5. As discussed above, Dr. Chu’s testimony only

changed with respect to the trajectory of one bullet. In any event, Appellant

provides only speculation as to how he would have benefited from obtaining

his own expert. He did not proffer a new expert opinion in the petition, nor

did he proffer any expert testimony for an evidentiary hearing. Likewise,

Appellant fails to explain how he would have cross-examined Dr. Chu

differently, or changed his opening argument, to such an extent that it would

give rise to a reasonable probability that the outcome of the trial would be

different. Appellant also baldly asserts that Dr. Chu’s new testimony would

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have affected plea negotiations, but he fails to elaborate on this point. We

fail to see how a fact that we do not believe had a significant effect on

Appellant’s verdict in the circumstances of this case could have nonetheless

affected Appellant’s decision to pursue a different course of action regarding

a plea.

Accordingly, we ascertain no error in the PCRA court’s determination

that there was no reasonable probability that the jury’s verdict would have

been different had the trial court sustained an objection by Appellant’s trial

counsel regarding the portion of Dr. Chu’s testimony that differed from Dr.

Collins’ autopsy report. As Appellant has failed to demonstrate that he was

prejudiced by counsel’s failure to timely object, his second IAC claim lacks

merit. See Fears, supra.

III

In his final claim, Appellant asserts that the PCRA court erred by failing

to conduct an evidentiary hearing to address his trial counsel’s ostensible

ineffectiveness, due to counsel’s failure to investigate the altering of

biographical information (specifically, his self-reported height) by police

during their investigation. Appellant contends that his height was misreported

intentionally, for the purposes of undermining his self-defense claim by

minimizing the size difference between Appellant and the victim. Appellant

contends that

when the police interviewed Appellant shortly after his arrest, he
told the interviewing officer that he was 5’ 6” tall. Appellant would
have testified at an evidentiary hearing that the officer put down

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that information on the form. However, the form later showed
that someone altered the six into an eight.[6] [Reproduced Record
at 394]. Trial counsel failed to investigate the alteration or
challenge it at trial despite the fact that Appellant advised counsel
of the alteration[,] and despite the fact that the prosecutor argued
that because Appellant was only two inches shorter than the 5’
10” tall victim, he did not have the right to use deadly force.

Appellant’s Brief at 25.

It is axiomatic that an attorney may be deemed ineffective for failing to

adequately investigate in preparation for trial; in such cases, prejudice “can

be demonstrated by alleging beneficial information or issues that counsel

should have presented had he been prepared adequately, which would have

changed the outcome of the trial.” Commonwealth v. Elliott, 80 A.3d 415,

432 (Pa. 2013).

Here, the PCRA court found that Appellant

is unable to show that he was prejudiced by any failure to
investigate this alleged alteration. During his testimony,
[Appellant] stated that the biographical information was incorrect,
that he was only 5’ 6” tall, and therefore [that] Vaughn was 4”
taller than him. []N.T. [Trial,] 2/13/15, [at] 125-26[].
[Appellant] testified that “[e]verything else is correct but that” one
detail about his height. Id. at 126. Thus, the jury was aware that
the height differential was either [two inches] based upon the
biographical report or [four inches] based upon [Appellant]’s
testimony. The jury, who viewed the video of the shooting, could
make their own determination regarding the size difference
between the victim and [Appellant]. In the end, the jury did not
believe [Appellant]’s claim of self-defense and found him guilty of
murder. Since [Appellant] is unable to show prejudice due to trial
counsel’s failure to investigate an alleged alteration to the
____________________________________________

6 On the Biographical Information Report, we note that it appears as if a
correction of some sort was made, such that either the “6” was written over
with an “8,” or vice versa. However, it is not obvious which number was
written first.

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biographical report, trial counsel cannot be found ineffective for
failing to do so.

PCO at 15.

We agree with the PCRA court. Even assuming Appellant could prove at

an evidentiary hearing that he is only 5’ 6’’, and assuming that his trial counsel

would have testified at a hearing that he had no reasonable basis for failing

to investigate the discrepancy on the biographical information form (or

assuming the PCRA court would conclude that counsel’s basis for not

investigating the issue was unreasonable), Appellant still would have to

demonstrate that his counsel would have uncovered evidence that the

biographical information had been intentionally altered in order to undermine

Appellant’s self-defense claim. Appellant fails to explain how he or his counsel

could provide evidence that the form had been intentionally altered. Most

importantly, Appellant fails to identify what other witnesses or evidence he

could have presented at an evidentiary hearing to establish intentional

misconduct of that nature. Appellant did not proffer any other witnesses or

evidence in the petition for that purpose. Appellant’s underlying claim of

intentional misconduct is pure speculation; he has not proven, nor offered a

means to prove, that the alleged misconduct occurred, and so Appellant has

failed to show that he was prejudiced by counsel’s failure to investigate such

a speculative claim. See Commonwealth v. Lawrence, 165 A.3d 34, 48

(Pa. Super. 2017) (holding that where an “underlying … allegation is

unsupported by any evidence of record and is, instead, based on mere

speculation, we deem it, and the ineffectiveness claims premised upon it,

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meritless”). Accordingly, we conclude that the PCRA court did not err in

denying Appellant’s third IAC claim without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2022

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