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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE GERMANY :
:
Appellant : No. 254 WDA 2022
Appeal from the PCRA Order Entered January 24, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002955-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 25, 2023
Tyrone Germany appeals the denial of his request for relief under the
Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-9546. Germany
maintains that his trial counsel was ineffective. We affirm.
On January 19, 2016, Germany shot and killed the victim. At a non-jury
trial, the Commonwealth presented testimony from Adria Maxwell. Maxwell
testified that she was in a house on the night of the killing, and Michelle Stock
let the victim and Germany into the house. N.T., Trial, 12/13/16, at 10. After
letting them into the house, Stock went back upstairs. Id. at 12. Maxwell
stated that she observed the victim and Germany fighting on the floor and
heard Germany tell the victim “he was going to shoot him, and [Germany]
fired a shot.” Id. at 12, 13, 15. She then observed Germany shoot the victim
a second time. Id. at 15. Following the second shot, Maxwell ran from the
house but later returned after hearing the victim on the porch “calling for [her]
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to call 911.” Id. at 15-16, 34. The Commonwealth did not call Stock as a
witness.
Germany claimed self-defense and the Commonwealth admitted his
recorded interview with detectives. In the interview, Germany claimed that he
gave the victim money for drugs he wanted to purchase, and the victim went
upstairs. Confession of Tyrone Germany, 1/29/14, at 6. The victim returned
downstairs empty-handed and told Germany he was keeping the money and
not turning over the drugs. Id. The two began to argue and the victim pushed
him. Id. at 6-7. Germany claimed that the victim then grabbed him and placed
him in a headlock. Id. At 7. Germany stated that the victim had a gun in his
front pocket and Germany reached for it while in the headlock. Id. at 8.
Germany claimed that he then fired the gun three times, but it only went off
the third time. Id.
The court found Germany guilty of third-degree murder and persons not
to possess a firearm.1 Germany filed a direct appeal. In its 1925(a) opinion,
the trial court stated in part, “Ms. Maxwell credibly testified that [the victim]
never went upstairs[.]” Trial Court Opinion, filed 1/3/18, at 13. We affirmed
the judgment of sentence. Commonwealth v. Germany, No. 1035 WDA
2017, 2018 WL 6695309 (Pa.Super. filed December 20, 2018). Germany did
not seek further review.
____________________________________________
1 18 Pa.C.S.A. §§ 2502(c) and 6105(a)(1), respectively.
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On November 25, 2019, Germany filed a pro se “Motion for Extension,”
which the court treated as a first PCRA petition. The court appointed counsel,
but Germany later hired private counsel. Counsel filed an amended PCRA
petition raising claims of ineffective assistance of counsel. Relevant to this
appeal, Germany argued that trial counsel erred in failing to object to the
Commonwealth’s and the trial court’s “twist of the evidence.” Amended
Petition Pursuant to the Post-Conviction Relief Act, filed 11/5/20, at 10. This
evidence consisted of testimony regarding whether the victim went upstairs
prior to being shot and killed. Germany also alleged that trial counsel
“neglected to refute the court’s reliance on Adria Maxwell’s credibility amid
misrepresentation of facts.” Id. at 13. Germany also maintained that trial
counsel “failed to produce a vital witness[, Michelle M. Stock,] described
throughout the police reports who saw the victim come downstairs.” Id. at
16. Additionally, Germany argued that counsel erred by failing to ask for a
missing witness jury instruction based on Stock’s absence from the trial.
Germany attached to his PCRA petition an affidavit from trial counsel.
Id. at Appendix B, Unsworn Statements for Amended Petition Pursuant to the
Post-Conviction Relief Act, ¶ 2. In the affidavit, counsel states that he did not
object to the Commonwealth’s or the court’s summary of the evidence
regarding the position of the victim prior to being shot by Germany because
he did not believe it was “an unfair characterization of the testimony[.]” Id.
He also stated that the court’s characterization of the evidence was “supported
by the evidence presented and reasonable inferences taken from the
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evidence.” Id. Regarding Stock, counsel believed that Stock “was not available
to the prosecution at trial” and “her statements to police [were] damning to
the defense theory of the case.” Id. The affidavit also states that counsel
“cross examined [Maxwell] in an effort to challenge her testimony and to
attempt to get it to support Mr. Germany’s version of the events[.]” Id.
The court held an evidentiary hearing on October 26, 2021. The deputy
district attorney who tried Germany’s case (“the DDA”) testified, as well as
trial counsel. Trial counsel testified similarly to his affidavit. He stated that
Germany proceeded on a self-defense claim at trial. N.T., PCRA Hearing,
10/26/21, at 9. Trial counsel said that Stock’s statement only corroborated “a
small portion of Mr. Germany’s statement[.]” Id. at 22. Counsel said that he
did not call her as a witness because “the Commonwealth was unable to locate
her . . . and her statement to the police was not entirely corroborative of Mr.
Germany’s testimony.” Id. at 11. He said he did not try to locate her because
he did not believe that she was a relevant witness to the defense. Id. at 22.
Trial counsel explained that in his view, “there were numerous issues
that were not corroborated in Mr. Germany’s statement and whether [the
victim] went up the stairs or not was in [his] view one of the less significant
things that weren’t corroborated.” Id. He testified that he did not seek a
missing witness jury instruction because it was a non-jury trial and “it’s not
typically my practice during a non-jury trial to cite jury instructions.” Id. at
12. He testified that he did not doubt the judge’s knowledge of the law about
the missing witness jury instruction. Id.
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Regarding the Commonwealth’s statement during its closing that
Maxwell testified that the victim did not go upstairs, trial counsel testified that
he “considered it an interpretation of what was factually presented[.]” Id. at
18. He pointed out that the statement reflected the Commonwealth’s view of
the facts. Id. at 14. Counsel did not object because “I didn’t think that it was
a key issue in the case[.]” Id.
The DDA testified that on the night of the murder, when Stock initially
spoke with detectives, she did not say that she saw the victim go upstairs. Id.
at 33. He said that Stock later told detectives in an unsolicited conversation
that “she had passed [the victim] on the stairs” prior to the shooting. Id.; see
also Supplemental Report (Identification of Actor/Recovery of Additional
Evidence), dated 1/20/16. When detectives formally interviewed Michelle
Stock, she “did not mention passing [the victim] on the stairs” prior to the
shooting. N.T., PCRA Hearing, at 33; see also Supplemental Report (Photo
Array and Interview with Michelle Stock), dated 1/20/16; Supplemental
Report (Interview of Michelle Stock), dated 1/21/16. The DDA was not asked
about Stock’s availability as a witness at trial.
Following the evidentiary hearing, the court denied Germany’s PCRA
petition. This timely appeal followed. The PCRA court issued a Pa.R.A.P.
1925(b) order, and Germany filed a Rule 1925(b) statement.
Germany raises the following claims:
I. Did defense counsel offer ineffective assistance of
counsel when he failed to object and did not appeal
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on the Commonwealth and court’s perverse twist of
the evidence?
II. Did the defense ineffectively fail to produce a vital
witness described throughout the police reports who
saw the victim come downstairs, in corroboration of
[Germany’s] confession, and fail to request the
missing witness charge?
Germany’s Br. at 3 (answer of trial court omitted).
The PCRA court urges us to find waiver on the ground that Germany’s
Rule 1925(b) statement is too vague. We decline to find waiver on this basis.
The statement is not concise — it spans nine pages — and improperly
“provide[s] lengthy explanations.” Pa.R.A.P. 1925(b)(4)(iv). Nonetheless, it
was sufficiently clear for the PCRA court to identify the two issues Germany
lists in his brief and author a responsive Rule 1925(a) opinion. See Pa.R.A.P.
1925(b)(4)(ii).
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error.” Commonwealth v. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019).
Counsel is presumed effective. Commonwealth v. Mason, 130 A.3d
601, 618 (Pa. 2015). To overcome this presumption, the petitioner must plead
and prove that: “(1) the legal claim underlying the ineffectiveness claim has
arguable merit; (2) counsel’s action or inaction lacked any reasonable basis
designed to effectuate petitioner’s interest; and (3) counsel’s action or
inaction resulted in prejudice to petitioner.” Id. The petitioner must satisfy
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each prong, or the claim will fail. See Commonwealth v. Basemore, 744
A.2d 717, 738 n.23 (Pa. 2000).
In his first issue, Germany claims that trial counsel rendered ineffective
assistance by failing to object to the Commonwealth’s “twist of the evidence.”
Germany’s Br. at 11. He states that in its closing argument, the
Commonwealth misstated the evidence by claiming that Maxwell testified that
the victim never went upstairs. He maintains that the trial court repeated this
alleged misrepresentation of the evidence in its opinion on direct appeal.
Germany reiterates his confession and argues that counsel “did not enlighten
the [c]ourt on the facts” and “never spoke up to correct the allegation that
Ms. Maxwell said the victim did not go upstairs.” Id. at 13. He further notes
that counsel did not object to the Commonwealth’s sentencing remarks, which
reiterated the conclusion that the victim never went upstairs. Germany
maintains that he was prejudiced by counsel’s failure to object because this
misrepresentation of the facts changed the evidence of the case and “tragically
contributed to a Murder conviction that was affirmed.” Id. at 12.
“[A] prosecutor has considerable latitude during closing arguments and
his arguments are fair if they are supported by the evidence or use inferences
that can reasonably be derived from the evidence.” Commonwealth v.
Holley, 945 A.2d 241, 250 (Pa.Super. 2008). “Prosecutorial comments based
on the evidence or reasonable inferences therefrom are not objectionable, nor
are comments that merely constitute oratorical flair.” Commonwealth v.
Chmiel, 30 A.3d 1111, 1146 (Pa. 2011).
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Germany’s argument does not warrant relief. In its closing argument
the Commonwealth stated, “And Adria Maxwell says [the victim] never went
upstairs.” N.T., Trial, at 108. Maxwell testified that immediately prior to the
shooting, Germany and the victim were downstairs. She then saw the two
men fighting on the floor and saw Germany shoot the victim twice. Maxwell
did not testify at any point that she observed the victim go upstairs. Under
these facts, the Commonwealth’s statement that Maxwell said that the victim
never went upstairs was a reasonable inference based on evidence of record.
Trial counsel was therefore not ineffective for failing to object to it. For the
same reasons, counsel was also not ineffective for failing to object to the
Commonwealth’s comment at the sentencing hearing or challenge the court’s
making the inference in its direct appeal opinion. The objections underlying
Germany’s claim of ineffectiveness lack arguable merit. Moreover, the issue
would not undermine confidence in the verdict. According to Germany’s own
statement, Germany spotted the gun in the victim’s pocket, took it during the
scuffle, and shot the victim with it. His ineffectiveness claim consequently fails.
Germany also claims that counsel was ineffective for failing to impeach
Maxwell with a transcript of her call to 911, where she stated that she was
upstairs when she heard the gunshot. See Germany’s Br. at 17. He notes that
the trial court found her testimony credible but maintains that trial counsel
could have undermined her credibility by showing that she told the 911
operator that she was upstairs when the shooting occurred.
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Germany waived this issue because it is not in his Pa.R.A.P. 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii). He also waived it by not putting it
in his statement of questions involved. See Pa.R.A.P. 2116(a); In re
R.A.M.N., 230 A.3d 423, 431 (Pa.Super. 2020). In any event, it is meritless.
Though counsel did not impeach Maxwell with her call to 911, he thoroughly
cross-examined her about inconsistencies in her testimony. For example,
counsel pointed out that Maxwell testified that the two men wrestled with each
other on the floor but had told the police that the victim had Germany in a
headlock, which was consistent with Germany’s version of events. N.T., Trial,
at 23. Thus, counsel challenged Maxwell’s credibility. Furthermore, the court,
through counsel’s cross-examination, was privy to Maxwell’s inconsistencies
regarding what she observed the night of the murder. Moreover, as noted,
Germany’s statement was that he took the gun out of the victim’s pocket and
shot him with it. Germany has not shown prejudice.
In Germany’s remaining issue, he argues that counsel was ineffective
for failing to request a missing witness jury instruction for Michelle Stock. He
also argues that counsel “offered ineffective assistance of counsel when he
rested his laurels on the Commonwealth’s efforts and failed to find this witness
himself.” Germany’s Br. at 21. He claims that Stock’s testimony would have
changed the outcome of the trial because she would have testified that the
victim went upstairs, and this would have corroborated Germany’s testimony.
See id. at 23. He also claims that counsel was ineffective for not calling her
as a witness.
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“[I]n non-jury trials, we presume the court is ‘imbued with the
knowledge of the law that he would have given in a formal charge in a jury
case.’” Commonwealth v. Akhmedov, 216 A.3d 307, 321 (Pa.Super. 2019)
(en banc). A missing witness jury instruction is proper where the “witness is
available to only one of the parties to a trial, and it appears this witness has
special information material to the issue, and this person’s testimony would
not merely be cumulative[.]” Commonwealth v. Evans, 664 A.2d 570, 573
(Pa.Super. 1995) (quoting Commonwealth v. Manigault, 462 A.2d 239,
241 (Pa. 1983)). A court may deny a request for this instruction for several
reasons including where the court concludes that the witness is equally
available to both parties. Id.
Germany again fails to show prejudice. The trial court, sitting as fact
finder, is presumed to have known relevant law, including the missing witness
jury instruction and its applicability to the case. See Akhmedov, 216 A.3d at
321. Furthermore, Germany has not established that the underlying claim has
arguable merit. The evidence at trial does not show that Stock was available
only to the Commonwealth, had special information, or would have given non-
cumulative testimony. The record therefore does not show that the principles
underlying such an instruction applied here.
The claim regarding counsel’s failure to call Stock as a witness likewise
fails. “To prevail on a claim that trial counsel was ineffective for failing to
present a witness, the [PCRA petitioner] must demonstrate that: (1) the
witness existed; (2) counsel was either aware of or should have been aware
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of the witness’s existence; (3) the witness was willing and able to cooperate
on behalf of the defendant; and (4) the proposed testimony was necessary to
avoid prejudice to the defendant.” Commonwealth v. Tharp, 101 A.3d 736,
757 (Pa. 2014) (citation omitted). “[T]he PCRA petitioner ‘must show how the
uncalled witnesses’ testimony would have been beneficial under the
circumstances of the case.’” Commonwealth v. Johnson, 966 A.2d 523, 536
(Pa. 2009) (citation omitted).
At the PCRA hearing, trial counsel explained that though Stock
corroborated a small portion of Germany’s statement to police, “there were
numerous issues that were not corroborated in Mr. Germany’s statement.”
N.T., PCRA Hearing, at 22. He testified that therefore he did not attempt to
locate Stock because he “did not think she was a relevant witness to our
defense.” Id. Trial counsel also pointed out that “[t]he Commonwealth was
unable to locate [Stock.]” Id. at 11.
Here, Germany did not demonstrate that Stock was willing and able to
testify on his behalf or that she would have testified that the victim went
upstairs. Moreover, even without her testimony, the court still had available
Germany’s statement that the victim went upstairs prior to their fight.
Furthermore, because Stock’s statement only corroborated a small portion of
Germany’s statement, it was a matter of reasonable trial strategy to choose
not to call her as a witness. As such, Germany did not satisfy his burden to
prevail on this claim of ineffectiveness as it lacks merit. Tharp, 101 A.3d at
757; Johnson, 966 A.2d at 536. We therefore affirm.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2023
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