Com. v. Germany, T.

J-S05045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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