Com. v. Carter, K.

J-A24026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLE CARTER :
:
Appellant : No. 2174 EDA 2021

Appeal from the PCRA Order Entered September 24, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005038-2012

BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED MARCH 28, 2023

Kyle Carter appeals from the order entered in the Philadelphia County

Court of Common Pleas on September 24, 2021, dismissing his petition filed

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

9546. Carter raises multiple issues on appeal, including numerous claims of

ineffective assistance of counsel. After careful review, we affirm.

We previously adopted the factual history as set forth by the trial court

on direct appeal as follows:

At trial, the Commonwealth presented the testimony of William
Deas, Leon Monroe, Shanheed Perrin, Dorenda Wicker, Tanya
Wiley, Dr. Gary Lincoln Collins, Philadelphia Police Officers
Anthony Glaviano and Christopher Reed, Philadelphia Police
Detective Jonathan Ruth, and Philadelphia Police Sergeants Brian
Beaudet and Daniel Ayres. [Carter] testified on his own behalf and
offered, by stipulation, the testimony of Coy Hudgens, Professor
Anthony Dandridge, Carmen Coleman, Barbara Wilkins, Chad
Davis, Candice Bing, and Dijon Davis. Viewed in the light most
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favorable to the Commonwealth as the verdict winner, their
testimony established the following.

On February 23, 2012, at approximately 1 a.m., Leon Monroe,
Erick Thompson, and "Rel" were at a bar in the Glenside
neighborhood of Philadelphia when they decided to go to Club
Onyx, a gentleman's club in South Philadelphia. When the three
men arrived at the club, they encountered Shanheed Perrin, who
was working security for the club that night. Perrin asked the men
for identification in order to enter the club, which Monroe and Rel
produced. [Brock] informed Perrin that he did not have his ID with
him, and Perrin told [Brock] that he could not enter the club
without it. [Brock] became upset and placed a call to another
security guard who was inside the club, Rob, whom [Brock] knew.
Rob then came outside and, after patting down [Brock] and his
friends for weapons, escorted them into the club.

Approximately one hour later, at 2 a.m., [Brock] emerged from
the club onto the club's porch with the head of the club's security,
William Deas. [Brock] pointed out Perrin to Deas, and said that
Perrin would not let [Brock] in the club earlier. As Deas tried to
calm [Brock] down, [Brock] began yelling at Perrin. Perrin yelled
back at [Brock], then stopped arguing with him and assumed his
position at the club's door.

At that point, [Carter], an off-duty security officer for Club Onyx,
approached [Brock] and began arguing with him. [Brock] yelled
back at [Carter], who then pulled out a gun and said to [Brock]
and his friends, "y'all got five seconds to leave off the porch."
[Brock] then counted down, "five, four, three, two, one," but
[Brock] remained on the porch. [Carter] then immediately shot
[Brock] in the neck. [Carter] then walked to his car, got in, and
drove away.

Shanheed Perrin called 911. The police arrived and transported
[Brock] to Jefferson Hospital. [Brock] was in critical condition
when he arrived at the hospital, where doctors performed
emergency surgery. After surgery, doctors determined that
[Brock] was brain dead. He was removed from life support and
died on February 26, 2012.

Police recovered one .45 caliber cartridge casing from the club's
porch. [Carter] surrendered to the police on February 24, 2012.

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[When police subsequently searched Carter’s residence and
vehicle, they did not find the firearm used to kill Brock.]

On May 16, 2012, Philadelphia Police Sergeant Daniel Ayres was
patrolling the Mount Airy area of Philadelphia when he pulled over
[Carter]’s brother, Vernon Carter, for a traffic violation. Vernon
Carter was driving [Carter]’s car. From the car, Sergeant Ayres
recovered a .45 caliber handgun containing nine rounds of
ammunition. This .45 caliber handgun was positively matched to
the fired cartridge casing found at the scene of the shooting.

Sergeant Ayres also recovered a note from the vehicle that read,
"I, Kyle Carter, authorize my brother Vernon Carter permission to
receive my car from the police impound." The document also listed
the vehicle's identification number (VIN), and the make, model,
and color of the car. The document bore the signature, "Kyle B.
Carter." The document also bore the stamp of a notary public, but
did not contain the notary's seal, date, or signature.

Trial Court Opinion, 4/21/14, at 2-4 (citations omitted); see also

Commonwealth v. Carter, 906 EDA 2017 (Pa. Super. filed April 24, 2018)

(unpublished memorandum).

On July 19, 2013, a jury found Carter guilty of third degree murder. On

September 20, 2013, after denying Carter’s oral motion for extraordinary

relief, the trial court sentenced Carter to eighteen to forty years’ incarceration.

Carter filed post-sentence motions, which were denied. Carter timely

appealed, but this Court later dismissed the appeal for failure to file a brief.

Carter was represented at trial and on appeal by Michael Coard, Esquire.

Carter filed a successful PCRA petition and was granted reinstatement

of his appellate rights nunc pro tunc. Carter timely appealed, and this Court

affirmed his judgment of sentence. See Carter, 906 EDA 2017.

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On October 10, 2018, Carter filed the instant pro se PCRA petition

alleging Attorney Coard was ineffective at trial. Counsel was appointed and

filed an amended petition. Counsel was subsequently granted permission to

withdraw due to a conflict, and new counsel was appointed and filed a

supplemental petition.

After the Commonwealth filed a motion to dismiss, the PCRA court

issued notice of its intent to dismiss the petition without a hearing pursuant

to Pa.R.Crim.P. 907. Carter responded, seeking to amend the petition with

two new claims. The PCRA court permitted the amendment. The

Commonwealth filed a motion to dismiss the new claims. On August 6, 2021,

the PCRA court issued a Rule 907 notice. On September 24, 2021, the PCRA

court dismissed the petition as meritless. This timely appeal followed.

On appeal, Carter raises the following twelve issues for our review:

1. Was trial counsel ineffective for failing to preserve an objection
to the trial court's modification to the "castle doctrine"?

2. Did the PCRA court err by denying certification to the Superior
Court nunc pro tunc on Issue 1 concerning the castle doctrine jury
instruction?

3. Was trial counsel ineffective for failing to introduce into
evidence court records documenting two prior bad acts by the
decedent?

4. Was trial counsel ineffective for failing to request specific
instructions in the justification charge and voluntary manslaughter
charges regarding the decedent's prior bad acts of violence?

5. Was trial counsel ineffective for failing to litigate a motion in
limine, or request a cautionary instruction regarding firearms
evidence unrelated to the shooting?

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6. Was trial counsel ineffective for failing to object to life-in-being
testimony?

7. Was trial counsel ineffective for failing to subpoena and cross-
examine eyewitness Shanheed Perrin with his Robbery crimen
falsi conviction?

8. Was trial counsel ineffective for failing to subpoena and
introduce the victim's medical records?

9. Was trial counsel ineffective for failing to obtain Appellant's
express consent to stipulate to the character witnesses?

10. Was trial counsel ineffective for failing to effectively cross-
examine William Deas on an inconsistent statement under Pa. R.
Evidence 613?

11. Was trial counsel ineffective for failing to meet a minimum
standard of effective performance under Commonwealth v.
Brooks, 839 A.2d 245 (Pa. 2003)

12. Did the "cumulative impact" of trial counsel's ineffectiveness
as asserted in the issues set forth herein and all PCRA petitions
violate the Appellant's right to a fair trial?

Appellant’s Brief, at 8-9 (suggested answers omitted).

Our review of an order dismissing a PCRA petition is limited to examining

whether the PCRA court’s determinations are supported by the record and the

court’s decision is free of legal error. See Commonwealth v. Shaw, 217

A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the

factual findings of the PCRA court and will not disturb those findings unless

they have no support in the record, we apply a de novo standard of review to

the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147

A.3d 915, 919 (Pa. Super. 2016).

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A majority of Carter’s claims challenge the effectiveness of his trial

counsel. Counsel is presumed to have been effective. See Commonwealth

v. Brooks, 839 A.2d 245, 248 (Pa. 2003). In order to overcome that

presumption and prevail on a claim of ineffectiveness, Carter must establish

that: (1) the underlying claim has arguable merit; (2) counsel had no

reasonable basis for their conduct; and (3) he was prejudiced by counsel’s

ineffectiveness, i.e. there is a reasonable probability that because of the act

or omission in question, the outcome of the proceeding would have been

different. See id. As is true for all petitioners, Carter’s “failure to prove any

one of the three prongs results in the failure of [his] claim.” Commonwealth

v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (citation omitted).

In his first issue on appeal, Carter contends his trial counsel rendered

ineffective assistance of counsel by failing to preserve an objection to the trial

court's modification to the "castle doctrine" jury instruction.

At trial, Carter argued that he acted in self-defense when he shot and

killed the decedent, pursuant to the “castle doctrine”, codified at 18 Pa.C.S.A.

§ 505(b)(2). Section 505(b) sets forth the limitations on the defense of

justification, in pertinent part, as follows:

(2) The use of deadly force is not justifiable under this section
unless the actor believes that such force is necessary to protect
himself against death, serious bodily injury, kidnapping or sexual
intercourse compelled by force or threat; nor is it justifiable if:

…

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(ii) The actor knows that he can avoid the necessity of using
such force with complete safety by retreating, except the
actor is not obliged to retreat from his dwelling or place of
work, unless he was the initial aggressor or is assailed in his
place of work by another person whose place of work the
actor knows it to be.

18 Pa.C.S.A. § 505(b)(2). The term “place of work” is not defined by the

Crimes Code.

At trial, the court instructed the jury as follows:

A duty to retreat arises where the defendant knows he could avoid
the necessity of using deadly force with complete safety by
retreating himself or by trying to cause the person he was trying
to protect to retreat. However, there are certain exceptions to this
duty to retreat. In particular, a defendant is not obliged to retreat
from his place of work unless he was the initial aggressor, nor is
he required to retreat if the person he seeks to protect was at that
person's place of work at that time, unless, once again, the
defendant was the initial aggressor. If he was the initial aggressor,
he has [a] duty to retreat.

Therefore, if you find that defendant at the time of the shooting
here at issue was then and there engaged in his occupation,
or that he was trying to protect another person who was then and
there engaged in his occupation, then defendant is not under a
duty to retreat unless he was [the] initial aggressor.

But if the Commonwealth proves any one of these elements
beyond a reasonable doubt, then the actions of the defendant in
using deadly force are not justified. If [the] Commonwealth fails
to prove any of these elements, the defendant's action was
justified and you must find him not guilty.

N.T., 7/18/13, at 27-28 (emphasis added).

Carter argues the court modified the charge such that it violated his due

process rights. Specifically, Carter argues the trial court’s indication that there

must be a finding that Carter was “then and there engaged in his occupation”

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shifted the burden from the Commonwealth to Carter, to prove that he was at

his place of work. We disagree.

A jury instruction must be evaluated as a whole. See Commonwealth

v. Cox, 863 A.2d 536, 549 (Pa. 2004). Here, we do not read the court’s jury

instruction as shifting the burden when read in context. In contrast, as stated

in the paragraph directly following the statement at issue, the trial court

clearly stated that the justification defense hinged on whether or not the

Commonwealth met its burden. In addition, the trial court noted this same

requirement numerous times throughout the jury instructions. See e.g., N.T.

7/18/13, at 23 (“Since the Commonwealth has the burden of proof in this

case, the Commonwealth must prove to you that defendant did not act in

justifiable self-defense or in justifiable defense of another person beyond a

reasonable doubt”); and id. at 29 (“Now once the defendant raises the issue

of self-defense or defense of another, it is [the] Commonwealth’s burden to

prove beyond a reasonable doubt that the defendant did not act in justifiable

self-defense or justifiable defense of another person”).

As we find the jury instruction was proper, Carter’s underlying claim

lacks arguable merit, and therefore trial counsel cannot be found ineffective

for failing to object to it.

In his second issue on appeal, Carter argues the PCRA court erred by

denying a request for certification of the above castle doctrine jury instruction

issue to our Court nunc pro tunc pursuant to Commonwealth v. Little, 246

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A.3d 312 (Pa. Super. 2021). In Little, trial counsel sought preclusion of

evidence that a witness was not at risk for punishment for his jailhouse

confession through a motion in limine. Trial counsel argued that the witness

was at risk for the death penalty for the murder to which he was confessing.

The trial court denied the motion in limine. When the Commonwealth

presented the challenged evidence, trial counsel did not object, nor did

counsel object when the trial court prohibited counsel from questioning the

witness on his knowledge of the possible penalties for the crime. On direct

appeal, this Court held that trial counsel had waived the issue by failing to

object to the evidence when presented. See Little, 246 A.3d at 320. On

collateral review, Little argued that trial counsel was ineffective for failing to

properly preserve his challenge to the evidence. A panel of this Court agreed,

and granted Little the right to a direct appeal of this issue. See id. at 331-32.

Here, while Carter’s argument is not well developed on appeal, we take

Carter to be reiterating his first issue, but instead of asking for a new trial, he

is asking for restoration of his direct appeal rights. However, as we conclude

there is no arguable merit to Carter’s first claim, we likewise conclude there

is no arguable merit to this contention. Little is distinguishable because

Carter’s trial counsel never objected to the trial court’s instruction on place of

work. Therefore, unlike Little, we are not reviewing a situation where we

already know how the trial court would have responded to Carter’s argument.

Instead, we are performing our traditional role on collateral review of

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assessing whether trial counsel was ineffective for failing to object. Little does

not apply under these circumstances, and Carter’s second issue on appeal

merits no relief.

In his third issue on appeal, Carter argues trial counsel was ineffective

for failing to introduce into evidence court records documenting Brock’s two

prior convictions, as well as a prior arrest for robbery for which he had been

acquitted after trial.

An accused may offer character evidence of the victim only where self-

defense is alleged. See Commonwealth v. Buterbaugh, 91 A.3d 1247,

1256 (Pa. Super. 2014). The Pennsylvania Supreme Court has stated:

[W]here a defendant alleges self-defense, he may use his
deceased victim's criminal record either (1) to corroborate his
alleged knowledge of the victim's quarrelsome and violent
character to show that the defendant reasonably believed that his
life was in danger; or (2) to prove the allegedly violent
propensities of the victim to show that the victim was in fact the
aggressor.

Commonwealth v. Amos, 284 A.2d 748, 751 (Pa. 1971). Since Carter

alleged self-defense in this matter, he could have used character evidence of

the victim pursuant to Amos.

However, Carter has failed to establish the third prong of the

ineffectiveness test, prejudice, for this claim. To establish prejudice, Little was

required to establish that “there was a reasonable probability of a different

outcome if not for counsel’s error.” Commonwealth v. Medina, 209 A.3d

992, 1000 (Pa. Super. 2019) (citation omitted).

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We begin by noting that the jury was presented with evidence of Brock’s

violent history. Carter specifically testified regarding Brock’s propensity for

violence. See N.T., 7/17/13, at 53-55. Carter testified that Brock had

“robbery, assault, weapons charges.” Id. He also stated that Brock had been

ejected from the club several weeks earlier. Id. at 53.

So the jury heard evidence supporting Carter’s contention that he

believed Brock was violent and dangerous. Admittedly, this evidence was

admitted only for that purpose. See id. at 52-53 (trial court instructing jury

that Carter’s testimony about Brock’s history was being admitted only for the

purpose of establishing Carter’s mental state, but not for the truth of the issue

of whether Brock indeed had a criminal history). In contrast, evidence of

Brock’s past criminal history could have been admitted for the purpose of

showing that Brock was in fact a violent person. See Amos, 284 A.2d at 751.

Despite this, we conclude the record does not support a conclusion that

there is a reasonable probability the jury would have returned a different

verdict if Carter had presented evidence of Brock’s prior criminal history. The

Commonwealth entered substantial evidence on the record, including video

evidence including different camera angles from Club Onyx, showing all of the

actions of different individuals leading up to the shooting, and eye-witness

testimony from multiple people who were either working or at the club the

night of the shooting. Finally, the Commonwealth presented evidence of

consciousness of guilt. Specifically, Sergeant Daniel Ayres testified that a few

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months after the murder, he performed a traffic stop on a vehicle driven by

Carter’s brother. After a search of the vehicle, Sergeant Ayres recovered a

firearm and a notarized letter from Carter, authorizing his brother to retrieve

his vehicle from a police impound lot after Carter’s arrest. See N.T., 7/16/13,

at 269-273. The vehicle driven by Carter’s brother matched the description of

Carter’s vehicle in the note including VIN number, make, model, and color.

Further, a stipulation was entered on the record that the fired cartridge casing

recovered at the scene was fired from the firearm found in the vehicle. See

id. at 278. This evidence that Carter had secreted the murder weapon to a

close family member was entered to show consciousness of guilt, along with

evidence that Carter had owned numerous firearms, none of which could be

found during a search of his home. In the face of all this evidence, the jury

chose to credit the unbiased eye-witness testimony over Carter’s self-serving

testimony. We cannot conclude the explicit admission of Brock’s criminal

history would have had a reasonable probability of changing this credibility

determination, and therefore the outcome of the trial.

In his fourth issue on appeal, Carter contends trial counsel was

ineffective for failing to request specific instructions in the justification and

voluntary manslaughter charges regarding Brock's prior violent acts.

In support of this contention, Carter relies upon Commonwealth v.

Fisher, 493 A.2d 719 (Pa. Super. 1985). In Fisher, the appellant stabbed the

victim twice in the chest, but claimed he did so in self-defense after the victim

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tackled him and repeatedly struck the appellant in the head with his fists. See

id. at 720–21. The appellant introduced evidence of two previous occasions

when the victim had beaten him. See id. at 723. However, the trial court

denied the appellant’s request that a jury instruction be given explaining that

the two acts of violence perpetrated on the appellant were admissible for the

purpose of determining whether appellant reasonably believed he was faced

with imminent death or serious bodily injury. See id. On appeal, the appellant

claimed trial counsel was ineffective for failing to timely submit a proposed

jury charge. See id. A panel of this Court agreed and held that, since the

victim's initial aggression was of non-deadly force, a charge instructing the

jury of the relevance of the victim's prior acts on the defense of justification

was appropriate. See id. at 724.

However, our Supreme Court has subsequently limited the breadth of

Fisher. See Commonwealth v. Watley, 699 A.2d 1240, 1245 (Pa. 1997).

Specifically, Watley provides that Fisher instructions regarding prior acts of

violence are not necessary in every case in which the claim of self-defense is

raised based on admission of prior acts of violence. Rather, the trial court

must consider the factual circumstances in which the claim of self-defense

arises. See Id. For example, under the facts presented there, the Watley

Court found Watley’s testimony that one of the victims had shot at him first

was obviously life threatening such that the jury did not require any further

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explanation from the court. See id. Watley's testimony, if believed by the

jury, was enough to demonstrate his belief was reasonable. See id.

Here, Carter testified he feared for his life, and the lives of others, when

the decedent threatened to kill a security guard and charged the security

guard while reaching for her gun. Carter’s testimony, if believed by the jury,

was enough to demonstrate reasonable fear of death or serious bodily injury

and, therefore, the trial court was not required to give the jury a Fisher

instruction. Therefore, counsel was not ineffective for failing to pursue this

jury instruction and petitioner's claim is without merit.

In his fifth issue on appeal, Carter argues trial counsel was ineffective

for failing to litigate a motion in limine, or request a cautionary instruction

regarding firearms evidence unrelated to the shooting. Specifically, aside from

introducing into evidence the weapon used in the shooting, a Glock .45, the

prosecutor additionally introduced two exhibits consisting of paperwork for

numerous firearms owned by Carter. We find no relief is due.

“The general rule is that where a weapon can not be specifically linked

to a crime, such weapon is not admissible as evidence.” Commonwealth v.

Robinson, 721 A.2d 344, 351 (Pa. 1998). Nevertheless, an exception to this

rule occurs “where the accused had a weapon or implement suitable to the

commission of the crime charged.” Id. (internal quotation marks omitted).

Further, evidence of possession of a weapon other than murder weapon can

be admitted if the Commonwealth identifies an otherwise proper purpose for

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the evidence. See Commonwealth v. DeJesus, 880 A.2d 608, 615 (Pa.

2005).

There, two witnesses testified that several months after the murder in

question, they saw the defendant in possession of a sawed-off shotgun, which

“was unquestionably not the murder weapon.” Id. at 615. The trial court

allowed this evidence, finding “it tended to prove that the defendant had a

weapon similar to the one used in preparation of the crime he was currently

charged with.” Id.

The Court affirmed, concluding that the evidence of record showed that

the defendant knew of his fugitive status and intended to evade police

custody, which in turn suggested his consciousness of guilt. See id.

“[T]estimony … that appellant possessed a sawed-off shotgun was support for

the implication that appellant was serious in his intention to continue to evade

– indeed, that he had the means to repel – police custody.” Id.

Here, the Commonwealth introduced evidence that Carter owned guns,

none of which were found during a search of his home, to attempt to show he

must have removed the guns from his home, including the murder weapon.

See N.T., 7/17/13, at 202 (“The sixteen guns in his house isn’t to show you

he [is] a gun-toting thug. The 16 guns in his house is to show you he knew

the police were coming for him and he got rid of all the weapons so that they

can’t be found or traced. Consciousness of guilt, that is knowing you did

something wrong.”). Further, the trial court instructed the jury that this

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evidence was relevant to Carter’s consciousness of guilt. See N.T., 7/18/13,

at 17 (“You also heard evidence in this case tending to show [Carter] may

have attempted to conceal the firearm that was allegedly used in the shooting

that is at issue in this case. If you believe this evidence, you may consider it

as [] tending to prove [Carter]’s consciousness of guilt. You are not required

to do so.”). As in DeJesus, the challenged evidence was properly used for the

purpose of proving consciousness of guilt. Therefore, Carter has failed to

establish that a motion to exclude the evidence would have been successful.

He therefore fails to establish this claim has arguable merit.

In his sixth issue on appeal, Carter argues trial counsel was ineffective

for failing to object to testimony from Brock’s mother. During the guilt phase

of trial, Brock’s mother testified that she last saw Brock before he was shot

the prior Friday. The next time she saw him was in the hospital after he was

shot; and that she remembered the date Brock passed away because his

daughter was born on the same day. See N.T., 7/17/13, at 26-28.

On appeal, Carter argues Brock’s mother’s testimony should not have

been admitted because it was cumulative and overly prejudicial and was

improper victim impact evidence. The trial court found, and the

Commonwealth agreed, that the testimony was life-in-being testimony and

was properly admitted to establish that the decedent was alive and well before

the shooting.

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While victim impact evidence is not admissible until sentencing, life-in-

being testimony is admissible during the guilt phase of a murder trial when it

is proffered to show the victim was alive at a time prior to the murder, and

therefore is relevant to the first element of murder, that a human being was

unlawfully killed. See Commonwealth v. Jordan, 65 A.3d 318, 333 (Pa.

2013).

Here, however, there is no dispute that Brock was alive prior to the

shooting. Further, Brock's mother’s testimony was not necessary as life-in-

being testimony, as the medical examiner and other witnesses had already

testified in this regard. See Commonwealth v. Rivers, 644 A.2d 710, 716

(Pa. 1994) (concluding admission of a photograph of the victim, taken prior

to her death, as life-in-being evidence was erroneous where the existence of

the victim as a life-in-being had already been established by the testimony of

two witnesses and the coroner and was proffered solely to engender sympathy

for the victim since it irrelevant to the central issue at trial regarding the guilt

or innocence of the defendant).

As Brock’s mother’s testimony was not necessary as life-in-being

testimony, it assumed the character of victim impact evidence, which is

inadmissible during the guilt phase of trial. Therefore, Brock has established

the arguable merit prong of this ineffective assistance of counsel claim.

However, we decline to hold that Carter is entitled to relief because Carter

was not prejudiced by such error.

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The trial court clearly instructed the jury that it must not decide the case

based on sympathy. See N.T., 7/18/13, at 5-6. We presume the jury followed

the court's instructions. See Commonwealth v. Hutchinson, 25 A.3d 277,

296 (Pa. 2011). Given the plethora of evidence of the circumstances that led

to the shooting from eyewitnesses and recorded video, combined with the trial

court's clear instructions to the jury to decide the case objectively based on

the evidence, we conclude Carter suffered no prejudice from the error in the

admission of this brief passage in Brock’s mother’s testimony. Accordingly,

Carter is entitled to no relief on his sixth issue.

In his seventh issue on appeal, Carter argues trial counsel was

ineffective for failing to introduce crimen falsi evidence to impeach Shanheed

Perrin. Generally, evidence that a witness was convicted of a crimen falsi

offense, i.e., a crime involving dishonesty or false statement, is admissible to

attack the credibility of the witness. See Pa.R.E. 609(a). However, if more

than ten years have passed since the witness’s conviction, or release from

confinement, whichever is later, evidence of the conviction is only admissible

if its probative value substantially outweighs its prejudicial effect, and the

proponent gives the adverse party reasonable written notice of the intent to

use the conviction. See Pa.R.E. 609(b).

Carter contends trial counsel should have impeached Perrin with the fact

that he was convicted of robbery in 1997, sixteen years prior to the start of

Carter’s trial. Carter argues that he was prejudiced by this failure “because it

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was relevant to evaluating the credibility of Perrin [who] testified that [Carter]

was not on duty.” Appellant’s Brief, at 42. Carter contends that if the jury

believed Perrin’s testimony on this issue, it could have concluded he violated

his duty to retreat under the castle doctrine. While the issue of whether Carter

was on-duty was disputed at trial, we cannot conclude that Carter has

established the jury concluded he violated his duty to retreat under the castle

doctrine. The Commonwealth never argued that Carter violated a duty to

retreat; rather, the prosecutor focused on whether Carter had a reasonable

belief deadly force was necessary to protect himself or another person. See

N.T., 7/17/13, at 195 (“Nobody felt threatened.”); 197 (“Either way, that is

five seconds to think and stop and use your training … and determine if anyone

was in danger. And no one was.”); 207-08 (“He had no reason to fear [Brock]

at that moment. No one else did. [Brock] was not [anywhere] near him, wasn’t

coming near him, didn’t have a weapon, nothing. There is nothing that is

justified in killing another human being under those circumstances.”). Carter

has not established that Perrin’s testimony that Carter was off-duty on the

night of the shooting affected the verdict. As a result, he has not established

that he was prejudiced by counsel’s failure to impeach Perrin with Perrin’s 16-

year-old robbery conviction.

In his eighth issue on appeal, Carter claims trial counsel was ineffective

for failing to subpoena Brock’s medical records and introduce them into

evidence. Specifically, Carter argues these records “would have provided

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crucial corroboration that the decedent was the aggressor” by emphasizing

the trajectory of the bullet was downward. Appellant’s Brief, at 43.

The medical examiner testified on direct examination at trial. As part of

the medical examiner’s testimony, the Commonwealth admitted the medical

records currently at issue as evidence. See N.T., 7/17/13, at 13. In fact,

Carter cites to the exhibit containing the medical records in his appellate brief.

See Appellant’s Brief, at 43. Further, the medical examiner specifically

testified that the bullet path was “slightly downward”. N.T. 7/17/13, at 19.

As the medical records were included in the record, and the medical

examiner testified regarding the bullet's path, Carter cannot show he was

prejudiced by trial counsel’s alleged failure to subpoena and enter the same

medical records in order to elicit testimony that was nevertheless provided.

In his ninth issue on appeal, Carter argues trial counsel was ineffective

for failing to obtain Carter’s express consent to enter character evidence

through stipulation rather than by live witness testimony. Specifically, Carter

argues that two character witnesses, Coy Hudgens and Professor Anthony

Dandridge, were available to testify and would have testified that Carter

enjoyed an excellent reputation in the community for being peaceful, law-

abiding, non-violent, and honest.

This Court has held that trial counsel will not be deemed constitutionally

ineffective for introducing character evidence by stipulation rather than live

testimony where the jury is instructed that the stipulation is to be considered

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as evidence, and the jury is fully instructed as to the proper use to be made

of the evidence. See Commonwealth v. Thuy, 623 A.2d 327, 334 (Pa.

Super. 1993). “Whether to use live witnesses or place before the jury [a

defendant's] good character by stipulation is nothing more than a strategic

decision. It cannot be said that no competent lawyer would proceed [in that

manner]”. Id.

Here, trial counsel presented evidence of Carter’s character by

stipulation that seven members of the community would aver that Carter had

an excellent reputation for being non-violent and law-abiding. See N.T.,

7/17/13, at 34-35. The trial court instructed the jury to weigh and consider

the evidence of good character along with all of the other evidence in the case.

See N.T., 7/18/13, at 14.

Accordingly, because trial counsel’s use of stipulations for character

evidence was a strategic decision left to counsel’s discretion, this issue is

without merit.

In his tenth issue on appeal, Carter argues trial counsel was ineffective

for failing to effectively cross-examine a Commonwealth witness, William

Deas, regarding an inconsistent statement he made prior to trial. Specifically,

Carter contends trial counsel should have impeached Deas’s testimony with

an email he wrote to Club Onyx on February 29, 2012. The contents of that

email read as follows:

At the closing of the club at 2am on the day in question, [I] asked
the patron known as “E” (he is the guy who got shot) to exit the

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club because [it was] closing time. E asked me to give him a few
minutes, because he ordered food and wanted to finish it[. I] gave
him some time and once he finished his food [I] walked him to the
door. I led “E” outside on the porch and E said a few words to me
about the guard that was on the porch. E and [Shanheed] (the
armed guard) got into a verbal confrontation. E became very
aggressive, he threatened [Shanheed] and tried to force his way
[past] me. E was with another guy who was trying to get [past]
me to get to the armed guard. [I] pushed them both back then E
got really aggressive and tried to move me, at that point [I]
grabbed E by his shirt and forced him back and told him to keep
moving [off] the grounds. As soon as [I] moved E back [I] heard
a shot and E was down… The shot came from behind me so [I] did
not see who took the shot. [M]y eyes were on E…

Appellant’s Brief, at Exhibit H.

During trial, in addition to claiming self-defense, Carter also argued that

he fired his gun because Brock was reaching towards a female guard, Dorenda

Wicker, and Carter believed Brock could obtain Wicker’s firearm and hurt her.

Carter contends the above email would have bolstered the reasonableness of

his concern for the physical safety of Wicker, who he claims is the “armed

guard” mentioned in the email. However, the email clearly names Shanheed

Perrin as the “armed guard” referenced in the email. Accordingly, this

contention has no merit.

In his eleventh issue on appeal, Carter contends trial counsel was

ineffective for failing to meet a minimum standard of effective performance.

Carter relies on Commonwealth v. Brooks, 839 A.2d 245 (Pa. 2003) for his

contention that trial counsel was ineffective for failing to investigate and

properly prepare for trial.

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In Brooks, our Supreme Court found that an attorney's failure to meet,

in person, with a defendant facing a trial on capital charges amounted to

ineffective assistance of counsel. See id. at 249 (“Indeed, the very nature of

a capital case, typically quite involved and always subjecting the defendant to

the possibility of death, clearly necessitates at least one in-person meeting

between a lawyer and his client before trial begins.”).

Brooks was charged with first degree murder and the Commonwealth

sought the death penalty. Id. at 247. Counsel failed to meet with the

defendant “even once before his trial on capital charges.” Id. at 250. Instead,

counsel could only “specifically recall one telephone conversation” which

lasted about twenty to thirty minutes. Id. at 249. Our Supreme Court

concluded counsel's lack of contact with the defendant had no reasonable

basis, prejudiced the defendant, and found the conduct amounted to

ineffective assistance of counsel. Id.

Carter’s reliance on Brooks is misplaced. In Brooks, counsel failed to

meet with the defendant, even once, prior to trial on capital charges, instead

only having one brief phone conversation. Id. at 247-50. As such, Brooks

stands for the proposition that counsel representing a defendant facing the

death penalty is ineffective for completely failing to meet with a client in

person before trial.

Conversely, in the case at hand, Carter was not facing the death penalty.

Further, trial counsel met with Carter, in person, prior to trial. Counsel met

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with Carter for ninety minutes. Carter does identify alleged failures by counsel

that were the result of counsel’s failure to adequately prepare for trial.

However, these alleged failures were all raised by Carter as independent

claims of ineffective assistance of counsel. As we have concluded none of these

allegations merit relief, Carter is due no relief on this issue.

Finally, Carter contends the cumulative effect of trial counsel’s

numerous ineffective acts and omissions deprived him of a fair trial and his

due process rights.

Our Supreme Court has emphasized:

We have often held that no number of failed [] claims may
collectively warrant relief if they fail to do so individually.
However, we have clarified that this principle applies to claims that
fail because of lack of merit or arguable merit. When the failure of
individual claims is grounded in lack of prejudice, then the
cumulative prejudice from those individual claims may properly be
assessed.

Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (citations and

internal quotation marks omitted).

Here, while we found some of Carter’s claims failed due to lack of

prejudice, we concluded many of them failed for lack of arguable merit. As far

as those claims where we cited lack of prejudice, we find there is no

cumulative prejudice warranting relief, as these claims are independent and

distinct. They did not warrant relief individually, and did not prejudice Carter

in the aggregate. Nor is there a basis for cumulative error with regard to the

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remainder of Carter’s claims which we denied based on lack of arguable merit.

Carter is not entitled to relief on his final claim.

As none of Carter’s issues merit relief, we find the PCRA court did not

err in denying Carter’s PCRA petition and affirm the order denying relief.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2023

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