Com. v. Spencer, M.

J-S29036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL RAKEEM SPENCER :
:
Appellant : No. 275 MDA 2023

Appeal from the PCRA Order Entered January 17, 2023
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000882-2015

BEFORE: MURRAY, J., KING, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED: SEPTEMBER 18, 2023

Michael Rakeem Spencer appeals from the post-hearing order that

dismissed his timely filed Post Conviction Relief Act (“PCRA”) petition. See 42

Pa.C.S. §§ 9541-9546. On appeal, Spencer presents two ineffective assistance

of counsel claims, contending that his counsel was ineffective for having

deficiently prepared for his trial, specifically in failing to recall certain

witnesses that he avers would have been materially beneficial to his defense,

and, too, was ineffective for not making an objection when the trial court

addressed jury questions, but Spencer was not present in the courtroom. We

conclude that Spencer has not demonstrated his counsel was ineffective and

therefore affirm.

Spencer’s convictions that are the subject of this PCRA matter relate to

____________________________________________

 Retired Senior Judge assigned to the Superior Court.
J-S29036-23

his involvement in an April 18, 2015 shooting incident immediately outside of

Club Imbibe in Williamsport, Pennsylvania. The evidence presented at trial

showed that, while leaving the Club in the early hours of the morning, there

was an altercation between Spencer and one of the victims, which ultimately

involved Spencer retrieving a firearm and proceeding to indiscriminately fire

at a crowd of people that included the target victims. Five bystanders were

struck by the bullets fired from Spencer’s gun. Among the witnesses presented

by the Commonwealth at trial were Bahteem Sims and Adrian Stafford.

Stafford, who had been present with Spencer for most of the evening prior to

the shooting, testified that Spencer told him that he had repeatedly fired his

weapon and, too, that Stafford saw Spencer’s gun when the two of them left

the area. Sims, while not present for the shooting, testified that Spencer told

him to throw a firearm that had been in Spencer’s closet into a river. However,

according to Sims, the firearm had actually belonged to Stafford. The lower

court provided the following additional factual and procedural summary in its

opinion:

[O]n July 29, 2016, following a jury trial, [Spencer] was found
guilty of, among other charges: [one count of criminal attempt to
commit homicide and four counts of aggravated assault]. [In
addition, Spencer] was found guilty of numerous other related
charges[.]

On October 12, 2016, the court sentenced [Spencer] to an
aggregate term of twenty-seven and a half … years to fifty-five …
years of incarceration in a state correctional institution. …

Petitioner filed a [p]ost-[s]entence [m]otion on October 31, 2016.
Among the issues raised by [Spencer] in his [p]ost-[s]entence

-2-
J-S29036-23

[m]otion were that the court abused its discretion in sentencing
[him] to consecutive sentences and that the evidence was
insufficient to convict [Spencer] with respect to all of the counts.
[Spencer’s] [p]ost-[s]entence [m]otion was denied by [o]rder of
[c]ourt dated January 30, 2017.

[Spencer] filed a timely notice of appeal. In his appeal, [Spencer]
claimed that the evidence was insufficient to convict him of the
offenses and that the verdict was against the weight of the
evidence. By [o]pinion and [o]rder of the Superior Court dated
February 22, 2018, the judgment of sentence was affirmed.
[Spencer] subsequently sought allowance of appeal to the
Pennsylvania Supreme Court, which [that Court] denied on August
20, 2018.

Petitioner filed a timely Post Conviction Relief Act … petition. There
were various delays including, but not limited to, [Spencer]
wanting to represent himself and then changing his mind and
PCRA counsel initially filing a no[-]merit letter and changing her
mind and filing an amended PCRA petition and a supplement
thereto. The [PCRA] judge gave notice of his intent to dismiss
several of the claims without holding an evidentiary hearing but
directed further amendment and an evidentiary hearing with
respect to the claims asserted in paragraphs 16, 17 and 18 of the
[supplemental petition]. Shortly thereafter, the [PCRA] judge
[specifically dismissed Spencer’s claim as it related to jury
instructions being given outside of his presence, finding it to have
no merit and Spencer to have suffered no prejudice and, in that
same general period of time, the judge] left the bench[, and a new
judge was thereafter assigned to the present matter].

The evidentiary hearing [over issues associated with trial
counsel’s alleged failure to call certain witnesses] was continued
several times due to issues with transporting [Spencer] to the
evidentiary hearing. The evidentiary hearing was held on July 13,
2022.

* * *

At the evidentiary hearing, PCRA counsel called as witnesses:
[Spencer] and Bahteem Sims. Neither trial counsel nor
[Commonwealth trial witness] Adrian Stafford was called as a
witness by either party.

-3-
J-S29036-23

[Spencer] testified that he was 40 years old and had a ninth-grade
education. He stated that he could not read and write that well
but his reading has improved over the last 6 or 7 years because
he has been taking classes since he was incarcerated. He was
represented by Robert Cronin at his preliminary hearing and by
Greta Davis and Ravi Marfatia at trial. He indicated that he did not
meet Mr. Marfatia until the first day of trial.

[Spencer] testified that he was present at Imbibe on the date of
the shooting. He did not see who did the shooting, but had heard
shots close to him. Adrian Stafford was close to him at that time.

* * *

[Spencer further] testified that [he and Ms. Davis] discussed
witnesses right before trial. One of the people that he thought
could testify for him was already a witness for the Commonwealth.
[Spencer] also told Ms. Davis to call his uncle, Herbert Brown, as
a witness. [Spencer] indicated that Judge Lovecchio gave them a
lounge to use. They talked about calling David Baker as a witness
but the Commonwealth “got to him” before Ms. Davis did. They
also talked about Bahteem Sims.

During the trial, [Spencer] wanted Ms. Davis to recall Adrian
Stafford as a witness for him. Stafford was a Commonwealth
witness on the first day of trial. [Spencer] contends that Stafford
never said that he saw [Spencer] shoot the weapon. [Spencer]
also testified that his attorney tried to ask Stafford if he had a gun
before and to ask if he beat his uncle Herbert Brown with it.
[Spencer] thought that these questions were objected to but he
did not understand why. The attorneys were called to the judge’s
bench and when Ms. Davis came back, it was not going to be done.
They did not discuss recalling Stafford after that.

[Spencer] also wanted Ms. Davis to recall his cousin, Bahteem
Sims, as a defense witness. [Spencer] indicated that Sims was
there when Stafford entered [Spencer’s] room in the morning.
[Spencer] stated that everyone in the house was asleep when he
got home. Sims saw Stafford come to [Spencer’s] house the
morning after the shooting and saw him in [Spencer’s] bedroom.
[Spencer] believed that Stafford put the gun in his room that
morning and later that morning Sims took the gun out of his room.

[Spencer] noted that he and Stafford were both in Stafford’s car

-4-
J-S29036-23

that night and they both drove to Philadelphia the next day in
Stafford’s car. The shirt was in Stafford’s possession when it was
turned over to the police. [Spencer] contends that the shirt
Stafford provided to the police was not the shirt he wore that night
to Imbibe. [Spencer] also noted that there was a small amount of
gunshot residue on the shirt that Stafford turned in. [Spencer]
contends that if he were the actual shooter, there would have
been way more gun powder on the shirt.

[Spencer] also claimed that everybody was drunk or high that
night, particularly [Christopher] Harrold[, a witness to the
shooting]. He did not believe that his attorney questioned the
witnesses about drinking or being under the influence that night
and whether it would have affected their ability to recall. He also
believed that he asked his attorney to request a jury instruction
regarding intoxication but he did not believe any such instruction
was given.

[During the same PCRA hearing,] Bahteem Sims testified that he
was 18 years old in 2015, and he resided in the same residence
with [Spencer] back then. [Spencer] is his cousin. He did not see
[Spencer] come home on the night of the shooting as he may have
been asleep or on his phone. When he got up in the morning,
[Spencer] was asleep in [his] room. Stafford came to the
residence early in the morning. Sims got up when he heard the
door. Stafford went into [Spencer’s] room and stayed there “for a
while.” He could not tell how long. Later, Sims received a call
about getting rid of a gun. He found the gun in a closet in the
room where [Spencer] had been sleeping, which is the same room
that Stafford was in that morning. He sold the gun. Sims got
arrested for tampering with evidence. He testified for the
Commonwealth at trial. He was told before trial that he would get
probation but the guilty plea and sentencing did [not] occur until
after the trial.

Sims also testified that he had seen Stafford with a gun every time
he saw Stafford before the shooting at Imbibe. [Spencer’s] lawyer
never talked to Sims before the trial.

On cross-examination, Sims testified that he was interviewed by
PCRA counsel within the last few weeks, that he saw the summary
of his proposed testimony in the witness certification and that the
statements contained therein were all accurate. The
Commonwealth then admitted Sims’ witness certification as

-5-
J-S29036-23

Commonwealth Exhibit 1. On re-direct, Sims explained that
Exhibit 1 was PCRA counsel’s words, which described their
conversation [as outlined, supra]. [In addition, Sims’s testimony
established that the firearm he was asked to dispose of actually
belonged to Adrian Stafford.]

PCRA Court Opinion, 1/17/23, at 1-8 (record citations omitted).

After the hearing concluded, the PCRA court dismissed the remaining

portion of Spencer’s petition, which pertained to counsel’s asserted ineffective

assistance in failing to fully explore the testimony that both Stafford and Sims

could have offered at trial. Spencer timely appealed from his petition’s

dismissal, and the relevant parties have complied with their respective

obligations under Pennsylvania Rule of Appellate Procedure 1925. As such,

this appeal is ripe for review.

On appeal, Spencer presents two questions for adjudication:

1. Did the PCRA err in finding that Spencer had not established
ineffective assistance of counsel with respect to trial
preparation and the failure to recall witnesses that would have
been beneficial to the defense?

2. Did the PCRA court err when it failed to find that counsel was
ineffective for not objecting to portions of the trial taking place
outside of Spencer’s presence, specifically during a portion of
the jury instructions?

See Appellant’s Brief, at 4.

In reviewing the dismissal of a PCRA petition, our purview “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA

court’s credibility determinations, when supported by the record, are binding

-6-
J-S29036-23

on this Court; however, we apply a de novo standard of review to the PCRA

court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265

(Pa. 2014) (citation omitted).

For challenges that assert ineffective assistance of counsel, we employ

a well-settled set of precepts:

We presume counsel’s effectiveness, and an appellant bears the
burden of proving otherwise. To establish ineffectiveness of
counsel, a PCRA petitioner must plead and prove: [(1)] his
underlying legal claim has arguable merit; [(2)] counsel’s actions
lacked any reasonable basis; and [(3)] counsel’s actions
prejudiced him. Failure to satisfy any prong of the ineffectiveness
test requires dismissal of the claim. Arguable merit exists when
the factual statements are accurate and could establish cause for
relief. Whether the facts rise to the level of arguable merit is a
legal determination.

Commonwealth v. Urwin, 219 A.3d 167, 172 (Pa. Super. 2019) (internal

citations and quotation marks omitted) (brackets added). By way of further

elucidation, as defined by our Supreme Court: “a defendant raising a claim of

ineffective assistance of counsel is required to show actual prejudice; that is,

that counsel’s ineffectiveness was of such magnitude that it could have

reasonably had an adverse effect on the outcome of the proceedings.”

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (citations, brackets,

and internal quotation marks omitted).

Spencer first avers that his trial counsel failed to adequately prepare for

his trial. As the nucleus of this claim, Spencer suggests that, although they

were already witnesses who testified on behalf of the Commonwealth, counsel

should have interviewed Sims and Stafford before his trial because of the

-7-
J-S29036-23

“valuable testimony” they could have offered in his defense. Appellant’s Brief,

at 13. By failing to pursue these witnesses, counsel had “no reasonable

strategy.” Id.

We agree with Spencer’s proposition that “[c]ounsel has a general duty

to undertake reasonable investigations or make reasonable decisions that

render particular investigations unnecessary.” Id., at 12; see

Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016). Furthermore,

Spencer’s rule statement as to when counsel will be found to be ineffective for

failing to call a witness is apt: “[w]here a claim is made of counsel’s

ineffectiveness for failing to call witnesses, it is the appellant’s burden to show

that the witness existed and was available; counsel was aware of, or had a

duty to know of the witness; the witness was willing and able to appear; and

the proposed testimony was necessary in order to avoid prejudice to the

appellant.” Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011)

(citation omitted).

Beyond providing these standards, however, Spencer does not provide

any additional citations to the record or authority. Moreover, although he

delves into what counsel should have elicited as it relates to Stafford’s

testimony, Spencer materially fails to discuss the utility of Sims’s testimony.

Notwithstanding these deficiencies, Spencer suggests that, despite Stafford’s

trial testimony indicating that he asked Spencer “if he had shot the victims[,

… this line of questioning] could have been explored more, by bringing out the

fact that he was standing right next to [Spencer] and did not see [Spencer]

-8-
J-S29036-23

shoot toward the victims.” Appellant’s Brief, at 13. If this path would have

been pursued, “[t]he jury would have been able to consider whether …

Stafford should have been able to see [Spencer] commit the shooting if in fact

he was guilty.” Id. Spencer also baldly argues that counsel should have

presented evidence of Stafford’s alleged bad acts by failing to file a

Pennsylvania Rule of Evidence 404(b) notice, apparently as a way to impeach

Stafford’s testimony. See id.

Broadly, we are limited in our review of Spencer’s ineffective assistance

claims because, despite having a hearing, Spencer made no inquiry into

counsel’s reasonable basis for action or inaction. In other words, we do not

have any testimony from trial counsel serving to provide any context to any

of the discrete points now raised on appeal. “[A] lawyer should not be held

ineffective without first having an opportunity to address the accusation in

some fashion.” Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010),

overruled on other grounds by Commonwealth v. Bradley, 261 A.3d 381

(Pa. 2021). Moreover, it is the PCRA court, not the appellate court, that is the

appropriate forum for evidentiary and factual development. See

Commonwealth v. Shaw, 247 A.3d 1008, 1017 (Pa. 2021) (citations

omitted).

Based on what has been advanced in his brief, Spencer has not shown

any arguable merit as it pertains to his underlying claim that trial counsel

should have cast Stafford’s testimony in a more negative or impeachable light.

Although he alludes to trial counsel having been able to paint Stafford “as

-9-
J-S29036-23

violent[] and as an individual regularly in possession of the gun used to

commit these offenses,” Appellant’s Brief, at 15, there has been no

demonstration that impeachment would have been successful, that the

specific instances of Stafford’s violent conduct would have been admissible,

see Pa.R.E. 608(b)(1) (a witness’s character for truthfulness may not be

attacked through extrinsic evidence of specific instances of the witness’s

conduct), or that Stafford, should he have been recalled, would have testified

to anything inherently beneficial to Spencer’s cause. Moreover, we emphasize

the fact that Stafford testified on behalf of the Commonwealth and had ample

opportunity to be cross-examined. See N.T., 7/26/16, at 127-44 (including

an extensive cross-examination period from trial counsel). Without any

specific indication that Spencer’s counsel failed to act vis-à-vis Stafford and

thereby prejudiced Spencer, we are left with only vague insinuations as to

what counsel should have done differently at trial. Accordingly, Spencer has

failed to demonstrate that his counsel was ineffective in this domain. See 42

Pa.C.S. § 9543(a) (a PCRA “petitioner must plead and prove” his entitlement

to relief under the PCRA “by a preponderance of the evidence”);

Commonwealth v. Bretz, 830 A.2d 1273, 1276 (Pa. Super. 2003) (“Inherent

in this pleading and proof requirement is that the petitioner must not only

state what his issues are, but also he must demonstrate in his pleadings and

briefs how the issues will be proved.”) (citation omitted).

As to the potential impact of the testimony Sims now offers, his trial

testimony already materially covered these various points, illuminated, supra.

- 10 -
J-S29036-23

In particular, Sims testified, on cross-examination, that he had seen Stafford,

and never Spencer, with the gun Sims retrieved from a closet and thereafter

disposed of. See N.T., 7/27/16, at 37. Sims also discussed Stafford and

Spencer’s post-shooting trip to Philadelphia and further, immediately prior to

this trip, that (1) Spencer had been sleeping in his room, (2) Stafford went

into Spencer’s room, the room with the closet ultimately containing the gun

involved in the shooting, and (3) Stafford then proceeded to wake Spencer

up. See id., at 35.

With Sims’s trial testimony in mind, Spencer has not shown how further

development of his testimony would have served to benefit him at trial. In

fact, the PCRA court concluded the same: “[a]lthough Sims was not called as

a defense witness, the desired testimony was elicited during trial when Sims

was a witness for the Commonwealth.” PCRA Court Opinion, 1/17/23, at 12.

Moreover, the PCRA court found that there was no prejudice “because the jury

actually heard Sims[’]s testimony on this subject.” Id. As Spencer has not

shown any separation between Sims’s trial testimony and the proffered

testimony he faults his trial counsel for having not explored, Spencer has not

shown that he received ineffective assistance of counsel.

At his second ineffective assistance of counsel claim, Spencer asserts

that his counsel failed to object to jury instructions that were given outside of

his presence during the jury deliberation process.

Pennsylvania Rule of Criminal Procedure 602(A) mandates that a

“defendant shall be present at every stage of the trial including the impaneling

- 11 -
J-S29036-23

of the jury and the return of the verdict, and at the imposition of sentence,

except as otherwise provided by this rule.” However, other than citing this

Rule and other pieces of authority providing analogous support to that Rule,

Spencer has failed to show that what transpired, which was at most a technical

violation of Rule 602(A), constituted anything more than harmless error. See

Commonwealth v. Strong, 836 A.2d 884 887 (Pa. 2003) (citation omitted)

(“[A]n error may be harmless where the properly admitted evidence of guilt

is so overwhelming and the prejudicial effect of the error is so insignificant by

comparison that it is clear beyond a reasonable doubt that the error could not

have contributed to the verdict.”). Spencer has not directed us to any

authority that compels the opposite conclusion or demonstrates that the

court’s actions resulted in per se prejudice.

During jury deliberations, the trial court addressed various jury

questions apparently without Spencer being present, although, importantly,

his counsel was there. See N.T., 7/29/16, at 85. In particular, the jury asked:

“[w]hat does specific intent to kill, fully formed intent to kill, coconscious [sic]

[o]f his intention mean, and beyond a reasonable doubt.” Id. To answer the

jury, the court reread jury instructions that had already been given and then

added “some language.” Id., at 88. The court expounded upon the phrase

“specific intent to kill,” stating that it “does not require planning or previous

thought or any particular length of time. It can occur quickly. All that is

necessary is that there be time enough so that [Spencer] can and does fully

form an intent to kill and is conscious of that intention.” Id. The court then

- 12 -
J-S29036-23

reread the definition it had already given for the term “reasonable doubt.” Id.,

at 89.

When Spencer was subsequently brought before the court, still during

the jury deliberation process and just prior to the court being informed of the

jury’s verdict, the court informed Spencer what had happened:

[the court] read to [the jury] the definition of specific intent to kill
as defined in the first[-]degree murder [charge], but [it] didn’t
say premeditated. What [it] said was, specific intent to kill does
not require planning or previous thought or any particular length
of time. It can occur quickly. All that is necessary is there be time
enough so that the defendant can and does fully form an intent to
kill and is conscious of that intention. In decide [sic] whether the
defendant had specific intent to kill [the jury] should consider all
the evidence regarding his words and conduct and the attending
circumstances that might show his state of mind.

Id., at 91. Immediately thereafter, when asked, Spencer stated that he did

not have any concerns about the court’s response to the jury’s questions and

further did not want to question his counsel about the information provided to

the jury. See id., at 91-92.

In its subsequent opinion, the court concluded that

Spencer’s absence during the jury’s deliberation when the court
explained reasonable doubt and specific intent, despite his rule[-
]based and constitutional right to be present, would have been
harmless error. The jury did not hear a new or different charge in
private; the jury heard verbatim what previously transpired in
open court in the presence of [Spencer]. Furthermore, the verdict
showed that the jury carefully considered all of the evidence and
the court’s instructions by deliberating for a significant time and
actually acquitting [Spencer] on various charges.

PCRA Court Opinion, 12/14/20, at 11-12 (citations omitted).

While he explicitly maintains that his “absence without explanation to

- 13 -
J-S29036-23

the jury … prejudiced him … and had an effect on the verdict[,]” Appellant’s

Brief, at 17, Spencer fails to either refute the contents of the court’s response

to the jury’s questions by, e.g., arguing that they were somehow legally

inaccurate or outside of the scope of what the jury had already been apprised

of, or show that launching some sort of contemporaneous objection would

have been successful in ultimately altering the jury’s verdict.

After a thorough review of the trial transcript and in the absence of any

authority militating a different outcome, we conclude that Spencer was not

prejudiced by his nonappearance during the at-issue jury question and answer

period, which was materially limited in subject matter to reiterating and

marginally expounding upon the jury instructions as they had already been

given prior to the deliberation process.

As Spencer has failed to demonstrate that his counsel was ineffective,

we affirm the order of the lower court, which dismissed his PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/18/2023

- 14 -