J-S84038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER FLOURNEY
Appellant No. 253 EDA 2016
Appeal from the PCRA Order January 7, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s):
CP-51-CR-0004163-2008
CP-51-CR-0004164-2008
BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 22, 2017
Appellant, Christopher Flourney, appeals from an order dismissing his
first petition for relief under the Post Conviction Relief Act 1 (“PCRA”) without
a hearing. Appellant argues that trial counsel was ineffective for failing to
contact and interview an eyewitness to his gunfight with two police officers
and for failing to object to the introduction of a statement by his non-
testifying co-defendant during trial in violation of his rights under the
Confrontation Clause. We affirm.
The trial court’s opinion on direct appeal accurately summarizes the
evidence adduced during trial as follows:
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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On November 10, 2007, Officer Hagan and his partner
Officer Corcoran were in uniform and in their marked
patrol car. The [o]fficers were assigned to patrol the area
around 25th to 29th Streets between Oakford and
Dickinson Streets in South Philadelphia as there had been
a shooting in that area earlier in the day. While driving
eastward on the 2900 block of Dickinson Street, Officers
Hagan and Corcoran heard gunshots and saw muzzle
flashes coming from both sides of 28th Street to their
north. The officers activated their lights and sirens and
drove toward the direction of the gunshots.
While the officers were driving north on 28th Street
they heard more gunshots and saw two muzzle flashes
from two males on the east side of the street. Both males
were facing in the direction of the officers’ patrol car at the
time of the muzzle flashes, indicating that guns were being
fired at the officers. An inspection of the patrol car after
the gunfire ended showed that a bullet had struck the
windshield at “head-level.” The officers pursued the two
males who had shot at them and who ran north on 28th
Street. Each male was wearing a black hooded sweatshirt
with a pocket in the front. Three males who were on the
west side of the street ran away.
The officers were able [to] see the two males who shot
at their patrol car more clearly when they ran in a well-lit
area at the intersection of 28th and Reed Streets. Both
officers recognized one of the males as [Appellant], who
they both knew prior to this incident. [Appellant] was
holding a handgun as he was running away. As the
officers attempted to cut [Appellant] off as he approached
Earp Street, [Appellant] went over the hood of the patrol
car, pointed a gun at the officers, and continued running
north on 28th Street. At the same time, the other male,
who was subsequently identified as co-defendant Lashawn
Reaves, ran east on Earp Street. After Reaves appeared to
point a gun at them, the officers fired at Reaves, who was
hit once in the leg. As Officer Corcoran went to secure
Reaves, Officer Hagan left to pursue [Appellant] and sent
out a flash description.
About twelve minutes later, another officer stated over
the radio that she had seen [Appellant] look out of the
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window of a house on Sears Street. Officer Albertus and
his partner responded to this call by going to the house at
2754 Sears Street, where they ordered everyone out of
the house. Officer Hagan arrived and identified one of the
individuals taken out of the house as [Appellant], who was
no longer wearing a black hooded sweatshirt. After
obtaining a search warrant for the house, Detective Blowes
found a handgun hidden under some dirty underwear
inside a hole in the wall on the second floor. Detectives
Blowes turned the gun over to the Crime Scene Unit for
testing. Detective Blowes also took from this house a
black hooded sweatshirt that was also found on the second
floor.
Officer Edward Nelson of the Firearms Identification Unit
inspected the gun found hidden in the wall of 2754 Sears
Street and determined it to be an operable nine-millimeter
Ruger handgun with a four-inch barrel. He also inspected
sixteen fired cartridge casings that had been found in the
area on 28th Street from where the males had been seen
firing at the officers. Sixteen of the casings were fired
from the nine-millimeter Ruger that was recovered from
inside the wall in the house where [Appellant] was hiding.
Trial Ct. Op., 1/19/10, at 2-4 (record citations omitted).
Appellant and Reaves were tried together. The jury found Appellant
guilty of attempted murder,2 aggravated assault,3 criminal conspiracy,4
carrying a firearm without a license,5 possessing an instrument of crime,6
2
18 Pa.C.S. § 901(a).
3
18 Pa.C.S. § 2702(a).
4
18 Pa.C.S. § 903(a).
5
18 Pa.C.S. § 6106(a)(1).
6
18 Pa.C.S. § 907(a).
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and carrying a firearm on a public street in Philadelphia.7 On July 23, 2009,
the trial court imposed an aggregate sentence of twenty-five to fifty years’
imprisonment. Appellant filed timely post-sentence motions. On October
19, 2009, the Court granted Appellant’s motion for a judgment of acquittal
concerning his conviction for carrying a firearm without a license.8
On August 13, 2010, this Court affirmed Appellant’s judgment of
sentence, and on February 3, 2011, our Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Flourney, 3086 EDA
2009 (Pa. Super. Aug. 13, 2010), appeal denied, 476 EAL 2010 (Feb. 3,
2011). On December 7, 2011, Appellant timely filed a PCRA petition pro se.
On February 19, 2015, through counsel, Appellant filed an amended PCRA
petition. On November 3, 2015, the PCRA court issued a notice of intent to
dismiss Appellant’s amended petition without a hearing. On January 7,
2016, the PCRA court entered an order dismissing Appellant’s PCRA petition.
Appellant filed a timely appeal to this Court, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
7
18 Pa.C.S. § 6108.
8
The trial court premised its judgment of acquittal on the “absence of
evidence that the handgun possessed by [Appellant] had been concealed or
carried in a vehicle.” Trial Ct. Op., at 1 n.1. This did not affect Appellant’s
sentence, because he had been sentenced to no further penalty on this
charge. Id.
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I. Whether the [PCRA] court erred in denying the
Appellant’s PCRA petition without an evidentiary hearing
on the issues raised in the amended PCRA petition
regarding trial counsel’s ineffectiveness.
II. Whether the [PCRA] court erred in not granting relief on
the PCRA petition alleging counsel was ineffective.
Appellant’s Brief at 9. Appellant argues that: (1) trial counsel was
ineffective for failing to contact and interview Ellen Banning, an eyewitness
to the gunfight, (2) trial counsel was ineffective for failing to object to the
introduction of a statement by his non-testifying co-defendant during trial,
thus violating Appellant’s rights under the Confrontation Clause, and (3) he
was entitled to an evidentiary hearing on these ineffectiveness claims.9
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v. Abu–
Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted). When a PCRA
petitioner alleges ineffective assistance of counsel, counsel is presumed to
have provided effective representation unless the petitioner pleads and
proves that: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable basis for his or her conduct; and (3) the petitioner was
prejudiced by counsel’s action or omission. See Commonwealth v. Spotz,
84 A.3d 294, 311 (Pa. 2014). “In order to meet the prejudice prong of the
ineffectiveness standard, a defendant must show that there is a reasonable
9
We have reordered Appellant’s arguments for disposition.
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probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Commonwealth v. Reed, 42 A.3d
314, 319 (Pa. Super. 2012) (citation and quotation marks omitted), appeal
denied, 114 A.3d 416 (Pa. 2015). A claim of ineffective assistance of
counsel will fail if the petitioner does not meet any of the three prongs. See
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). “The burden
of proving ineffectiveness rests with [a]ppellant.”
In his first argument, Appellant contends that Banning gave a
statement to police officers10 that exculpated Appellant, but defense counsel
failed to interview Banning or call her as a witness. A review of Banning’s
alleged statement, which is unsigned, indicates that she saw only one
shooter, Amended PCRA Pet., 2/19/15, Ex. B, whereas the police officers
testified that there were two shooters. N.T., 6/2/09, at 14-15, 67, 88.
Banning stated that the shooter “wasn’t too big, not tall, he was stocky, and
may have been dark comple[cted].” Amended PCRA Pet., Ex. B. Appellant
claims that he was “nearly 312 pounds, light skin[ned], 5’8” and far from
stocky” on the night of the incident. Appellant’s Brief at 19. Banning stated
that the shooter was wearing a coat with a hood that she thought was gray
in color and turned on Reed Street when fleeing the officers. Amended PCRA
Pet., Ex. B. The officers testified that both shooters were wearing black
10
Attached as exhibit B to Appellant’s amended PCRA petition is an unsigned
statement that Banning allegedly gave to the police on the night of the
incident.
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hooded sweatshirts, and that Appellant ran straight down 28th Street. N.T.,
6/2/09, at 18-20, 23-24. Banning stated that the patrol car’s overhead
lights were off during the gun battle. Amended PCRA Pet., Ex. B. The
officers testified that the overhead lights were on. N.T., 6/2/09, at 14, 67.
Collectively, Appellant concludes, these discrepancies cast doubt on the
Commonwealth’s version of events and made Banning an essential witness.
No relief is due.
Our Supreme Court has held: “Where a defendant claims that counsel
was ineffective for failing to call a particular witness, we require proof of that
witness's availability to testify, as well an adequate assertion that the
substance of the purported testimony would make a difference in the case.”
Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008). The defendant
must demonstrate that
(1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should
have known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the
absence of the testimony of the witness was so prejudicial
as to have denied the defendant a fair trial.
Id. (citations omitted). Here, Appellant failed to certify in his amended
PCRA petition, and failed to argue in his appellate brief, that Banning was
available and willing to testify on his behalf. This alone justified the PCRA
court’s decision to deny PCRA relief without an evidentiary hearing. See
Commonwealth v. Brown, 161 A.3d 960, 967 (Pa. Super. 2017) (PCRA
court could properly dismissed claim of failing to call alleged witnesses
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without evidentiary hearing where petitioner failed to provide PCRA court
with affidavits or certifications indicating, inter alia, witnesses’ availability
and willingness to testify on appellant’s behalf).
In his second argument, Appellant contends that trial counsel was
ineffective for failing to object to the admission of a statement by Reaves to
a police detective that was redacted with neutral terms such as “the other
guy” or “him” substituted for Appellant’s name. Appellant argues that
although his name was replaced with neutral terms such as the “other guy,”
Reaves’ statement “clearly identified Appellant, [because] Reaves denied
being in the actual area [of the gunfight], and Appellant . . . and . . . Reaves
were the only two on trial for the incident in question.” Appellant’s Brief at
22. Further, Appellant argues that defense counsel was ineffective for failing
to request that the court give a limiting instruction directing the jury to use
the statement only as evidence against Reaves but not against Appellant.
Id. at 21. We disagree.
The PCRA court correctly summarized the relevant law as follows:
Under Bruton v. United States, 391 U.S. [1]23
(1968), the confession of a co-defendant that incriminates
another defendant at a joint trial may not be admitted as
evidence unless the codefendant who made the statement
takes the stand and is subject to cross-examination.
Otherwise, the Sixth Amendment right to confrontation of
the defendant who did not make the statement would be
violated. However, the Confrontation Clause is satisfied if
the confession is redacted in such a manner as to remove
facially incriminating references to the other defendant and
the jury is given an appropriate instruction to only consider
the statement as evidence against the defendant who
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made it. Commonwealth v. Daniels, 104 A.3d 267, 294
(Pa. 2014). Contextual implication will not violate a
defendant’s rights. So long as neutral pronouns such as
“the other guy” or “him” are substituted for the name of
the other defendant, and the jury is given an appropriate
limiting instruction, Bruton is satisfied. Daniels, 104
A.3d at 294.
PCRA Ct. Op., at 7-8.
Here, the Commonwealth introduced Reaves’ statement, which was
edited in accordance with Bruton to refer to Appellant as “the other guy” or
“him.” N.T., 6/3/09, 77-87. Thus, trial counsel had no basis to object to the
admission of the edited statement.
We note, as did the PCRA court, that defense counsel failed to request
a limiting instruction directing the jury that it could only consider the
statement as evidence against Reaves. Nevertheless, assuming that defense
counsel was ineffective for failing to request this instruction, Appellant did
not suffer prejudice. The PCRA court aptly observed that the evidence
against Appellant was overwhelming, because after multiple gunshots were
fired at the officers,
[t]he officers saw [Appellant] with a firearm as they were
pursing him, and found a firearm in a hole in the wall in
the house into which [Appellant] fled after the incident.
Ballistics matched that firearm to all [sixteen] fired
cartridge casings found at the scene of the shooting. The
black hooded sweatshirt that Officer Hagan saw
[Appellant] wearing during the incident was also found in
the same house. Both Officer Hagan and Officer Corcoran
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knew [Appellant] from previous encounters and recognized
him both during the pursuit and after his arrest.11
PCRA Ct. Op. at 6. Given this evidence, the lack of a limiting instruction
plainly did not affect the outcome of trial. See Commonwealth v.
Hutchinson, 25 A.3d 277, 305-06 (Pa. 2011) (petitioner was not prejudiced
by trial counsel’s failure to request limiting instruction as to permissible use
of prior bad act evidence that murder victim had requested protection from
abuse order against defendant and that defendant used aliases, where there
was overwhelming evidence of defendant’s guilt, including eyewitness
testimony of victim’s two children, both of whom knew defendant).
Lastly, Appellant argues that he was entitled to an evidentiary hearing
regarding the foregoing claims. However,
[t]he right to an evidentiary hearing on a post-conviction
petition is not absolute. It is within the PCRA court’s
discretion to decline to hold a hearing if the petitioner's
claim is patently frivolous and has no support either in the
record or other evidence. It is the responsibility of the
reviewing court on appeal to examine each issue raised in
the PCRA petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief without
conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations
omitted). Having reviewed Appellant’s claims in light of the record, we
11
We cannot take the statement of Banning, the alleged eyewitness, into
account, since she did not testify at trial, and, as discussed above, Appellant
failed to certify or aver that she was willing and able to testify on his behalf.
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discern no abuse of discretion in the PCRA court’s decision to dismiss
Appellant’s amended PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2017
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