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Commonwealth of Pennsylvania v. Jose Busanet

October 19, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOSE BUSANET, APPELLANT



Appeal from the Order dated February 7, 2011 (entered on February 8, 2011) in the Court of Common Pleas, Criminal Division of Berks County at No. CP-06-CR-: 0001386-1998

The opinion of the court was delivered by: Mr. Justice Baer

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

SUBMITTED January 3, 2012

OPINION

Following several evidentiary hearings in this post-conviction capital case, the Court of Common Pleas of Berks County ("PCRA court") dismissed the petition filed by Appellant Jose Busanet pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. For the reasons set forth herein, we affirm.*fn1

The facts underlying Appellant's conviction of first degree murder and related offenses are discussed in our opinion affirming his judgment of sentence on direct appeal. Commonwealth v. Busanet, 817 A.2d 1060 (Pa. 2002). We shall reiterate those facts which are relevant to the claims raised in Appellant's PCRA petition.

In the spring of 1997, Wilson Melendez and Nsilo Lane*fn2 worked for Appellant, who was a drug dealer in Reading, Pennsylvania. In May of that year, Lane told Melendez and Appellant that Jason Bolton ("the victim"), a rival drug dealer, had stolen Lane's gold chain and money. Appellant responded by telling Lane that he was going to kill the victim in retribution. Sometime thereafter, Appellant learned that the victim had made threats against him. The next month, on June 11, 1997, Appellant was at the home of LaDonna Johnson with Melendez, Richard Boxley, and Tamika Johnson. While there, Tamika heard Appellant state that the victim had 48 hours to live because he had robbed Lane. Shortly thereafter, at Appellant's request, Melendez and Boxley left the house to buy cigars at a corner store, and observed the victim walking down the street. Boxley then ran to tell Appellant the victim's whereabouts.

Moments later, Appellant and Boxley met Melendez on the street, and the three men followed the victim for several blocks, during which time Appellant stated he was going to kill the victim in broad daylight. After the victim turned a corner, Appellant directed Melendez to see where he went. Melendez reported that the victim was standing on the street and speaking to someone on the second floor of a house. Additionally, three people were standing across the street near a church, children were playing outside, and a woman was sitting on a nearby porch.

Appellant instructed Boxley to proceed around the corner and approach the victim first because the victim would not recognize him. As Boxley walked toward the victim, Boxley's gun accidentally discharged in his back pants pocket. Boxley then ran toward the victim, firing his gun. The victim did not draw a weapon. Appellant, who had been following a few steps behind Boxley during the incident, fired two shots in the victim's direction over the heads of the children playing in the street. The victim ran up onto a porch and entered the building. In response, Boxley fired his gun into the vestibule of the building that the victim had entered, killing him.

Following the shooting, Appellant returned to LaDonna Johnson's house with Melendez and Boxley, and directed Melendez to hide the firearms. Tamika Johnson was also present at LaDonna's house and observed the three men celebrating. Appellant told Tamika to go to the crime scene and determine whether the victim had died. When she returned and reported that the victim was dead, Appellant and Melendez remained celebratory, while Boxley appeared frightened. Melendez then left for his mother's house to hide the murder weapons, which were later recovered by police. Appellant was subsequently arrested in New York City for the shooting. He provided statements to New York City police officers, and later to Reading police officers, indicating, inter alia, that he had followed the victim on the street and fired two shots at him from his 9 millimeter revolver.

At Appellant's trial, the Commonwealth presented the testimony of Melendez, who described the events leading up to the murder, as well as the actual shooting of the victim. Melendez acknowledged that he currently had charges pending against him as an accomplice to the murder of the victim, and could possibly face the death penalty. He stated that the Commonwealth did not make any promises or agreements in exchange for his testimony against Appellant, although he hoped for leniency in return for his cooperation. Tamika Johnson testified that, on the day of the murder, she saw Appellant in possession of a firearm, heard him state that the victim had 48 hours to live because he had robbed Lane, and observed Appellant celebrating after the murder. The Commonwealth also presented the testimony of a ballistics expert, who opined that the bullet fragments and shell casings recovered from the crime scene matched the millimeter revolvers recovered by police. In addition, the Commonwealth introduced into evidence the statements Appellant gave to police officers from New York City and Reading.

In his own defense, Appellant testified that he was afraid of the victim because several people had told him that the victim wanted to kill him, and because the victim had fired shots at him during an incident approximately two to three weeks before the murder. Notes of Testimony ("N.T."), Feb. 18, 1999, at 345, 356-57. Appellant conceded that, on the day of the murder, he followed the victim down the street and told Boxley to approach the victim because Appellant wanted to speak with him, but not shoot him. Id. at 348-49. Appellant testified that after he heard a gun discharge, he saw the victim reach for something, and then Appellant fired two shots over the victim's head to scare him. Id. at 350. He acknowledged that the victim was not carrying a weapon and did not threaten him on the day of the murder. Id., at 379, 372. Appellant further conceded that he could have avoided the victim, but chose to follow him. Id. at 375.

Following the jury trial, Appellant was convicted of first degree murder, conspiracy to commit first degree murder, reckless endangerment, and related offenses.*fn3 At the penalty hearing, he pursued three mitigating circumstances: (1) the age of the defendant at the time of the crime; 42 Pa.C.S. § 9711(e)(4); (2) the defendant's participation in the homicidal act was relatively minor; id. § 9711(e)(7); and, (3) any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense. Id. § 9711(e)(8). Nevertheless, the jury found no mitigating circumstances and one aggravating circumstance, that Appellant knowingly created a grave risk of death to another person in addition to the victim of the offense. Id. § 9711(d)(7). Accordingly, on February 19, 1999, the jury rendered a verdict of death. The trial court imposed the sentence of death on March 22, 1999.

Trial counsel thereafter withdrew from the case, and new counsel filed Appellant's post-verdict motions, alleging, inter alia, several counts of trial counsel ineffectiveness.*fn4 Following an evidentiary hearing, the trial court denied post-verdict motions on December 22, 1999. Appellant's direct appeal followed, in which he reiterated his claims of ineffective assistance of trial counsel. This Court affirmed Appellant's judgment of sentence on December 19, 2002. Busanet, supra. The United States Supreme Court denied certiorari on October 6, 2003. Busanet v. Pennsylvania, 540 U.S. 869 (2003).

Appellant filed his PCRA petition on September 24, 2004,*fn5 and amended such petition on December 14, 2004. As described infra at 52-53, upon Appellant's motion, the PCRA court judge, who had presided over Appellant's trial, recused himself from the PCRA proceeding based on general comments the judge had made in an unrelated case, which referenced his frustration with cases involving drug dealing and gun violence in the City of Reading. A new PCRA court judge was thereafter assigned to the case.

During the next few years, several different counsel withdrew their appearance due to conflicts of interest. Appellant filed amendments to his PCRA petition on September 14, 2007, and January 7, 2009.*fn6 Thereafter, he requested judicial immunity for witness Melendez to testify at the evidentiary hearing, which the PCRA court denied. The PCRA court ultimately conducted evidentiary hearings on October 27-28, 2009, January 25, 2010, and April 9, 13, and 14, 2010. As explained in detail infra, on February 7, 2011, the PCRA court entered an Order and Opinion, examining thoroughly each of Appellant's several claims, and denying PCRA relief.

In his direct appeal from the denial of PCRA relief, Appellant now raises thirteen issues. Our standard of review is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding. Id.

To be eligible for PCRA relief, the petitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances set forth at 42 Pa.C.S. § 9543(a)(2) (including the ineffective assistance of counsel and the unavailability at the time of trial of exculpatory evidence, which would have changed the outcome of the trial had it been introduced).

Additionally, the petitioner must demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived. Id. § 9543(a)(3). An issue has been previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." Id. § 9544(a)(2). A PCRA claim is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[-]conviction proceeding." Id. § 9544(b).

Most of Appellant's claims challenge the stewardship of prior counsel. It is well-settled that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-91 (1984). This Court has described the Strickland standard as tripartite by dividing the performance element into two distinct components. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Accordingly, to prove trial counsel ineffective, the petitioner must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the petitioner was prejudiced by counsel's act or omission. Id. A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs.

With regard to the reasonable basis prong, we will conclude that counsel's chosen strategy lacked a reasonable basis only if the petitioner proves that the alternative strategy not selected offered a potential for success substantially greater than the course actually pursued. Commonwealth v. Kohler, 36 A.3d 121, 132 (Pa. 2012). To establish the prejudice prong, the petitioner must demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's ineffectiveness. Id.

To prevail on a claim of appellate counsel ineffectiveness for failure to raise an allegation of trial counsel ineffectiveness on direct appeal, a PCRA petitioner must present a "layered"*fn7 claim by presenting argument as to each of the three prongs of the Pierce test for each layer of allegedly ineffective representation. Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011). To demonstrate the arguable merit prong of a derivative claim of appellate counsel ineffectiveness, the petitioner must prove that trial counsel was ineffective under the three-prong Pierce standard. Paddy, 15 A.3d at 443. If the petitioner cannot prove the underlying claim of trial counsel ineffectiveness, petitioner's derivative claim of appellate counsel ineffectiveness fails. Id.

I. Brady Claim

Appellant argues that the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the total benefits Wilson Melendez received in exchange for his testimony against Appellant. As noted, Melendez was the key Commonwealth witness because he was an eyewitness to the murder and implicated Appellant in the crime. Appellant acknowledges that the jury was aware Melendez had murder charges pending against him in connection with the shooting of the victim, and that Melendez hoped for leniency in return for his testimony against Appellant. N.T., Feb. 17,1999, at 83-84, 87. He argues, however, that the Commonwealth suppressed evidence that it had agreed to drop Melendez's charges of first and second degree murder in exchange for his testimony. Appellant maintains that a promise to exercise prosecutorial discretion in such manner would eliminate the possibility that Melendez would be sentenced to life imprisonment or death, and was sufficient to constitute the quid pro quo for an agreement, regardless of the fact that there was no specific understanding as to what charge Melendez would plead to or what particular sentence he would receive. See Commonwealth v. Strong, 761 A.2d 1167, 1171 (Pa. 2000) (providing that "[a]ny implication, promise or understanding that the government would extend leniency in exchange for a witness' testimony is relevant to the witness' credibility"). Had the jury been aware that a deal existed, Appellant submits, it may have rejected Melendez's testimony as a mere attempt to reduce the sentence he potentially faced in his own prosecution. Appellant concludes that Melendez's trial testimony denying the existence of a deal was false, and that the Commonwealth's failure to correct such testimony constituted prosecutorial misconduct that violated his due process rights and requires a new trial.

In support of this contention, Appellant relies on a December 5, 2008, declaration made by Melendez, which was admitted into evidence at the PCRA hearing.*fn8 In the declaration, Melendez stated that "the investigators and the D.A. made it clear that if I testified to the events laid out in my June 1997 statement, they would drop the death penalty and I would get a lighter sentence." Appellant also relies on letters Melendez purportedly wrote to his attorney, expressing a similar sentiment. Finally, Appellant relies on the PCRA hearing testimony of Melendez's counsel, Attorney P. David Maynard, who stated that he expected that Melendez would plead guilty to a lesser offense and be sentenced to incarceration for a term of years if he cooperated with the prosecution of Appellant.

Distinct from the Brady claim alleging prosecutorial misconduct for suppressing the deal between Melendez and the Commonwealth, Appellant alternatively argues that trial counsel was ineffective for failing to investigate whether a deal existed, and for failing to use such agreement to impeach Melendez's trial testimony. Further, Appellant submits that appellate counsel was ineffective for failing to challenge on direct appeal trial counsel's stewardship in this regard.

In response, the Commonwealth agrees that any understanding or agreement for leniency between the prosecution and a witness must be revealed to the jury, but submits that there was no undisclosed agreement between the Commonwealth and Melendez. Contrary to Appellant's contentions, it asserts that Attorney Maynard testified at the PCRA hearing that the prosecutor refused to discuss which charges would be dropped, which charges Melendez would plead to, or which sentence Melendez would receive in exchange for his cooperation. N.T., Apr. 14, 2010, at 6-7, 23, 38-39.

Relying on Commonwealth v. Champney, 832 A.2d 403 (Pa. 2003), the Commonwealth submits that a witness's assumption that the prosecutor promised lenient treatment in exchange for his testimony against another is insufficient to establish that an agreement existed, especially where the individuals who allegedly struck the deal specifically denied under oath that one was made. Thus, the Commonwealth submits, the expectations of Melendez or his counsel, without more, are insufficient to establish that an agreement was reached. This is particularly true, it maintains, because Attorney Maynard clearly testified that his expectation that Melendez would benefit from his cooperation was not based on any representation by the prosecutor, but rather was based on his prior experience with the Berks County District Attorney's Office. N.T., Apr. 14, 2010, at 7.

The Commonwealth further argues that Appellant's declaration, which suggests that particular charges would be dropped in exchange for Melendez's testimony, is not credible given that it is an unreliable recantation of Melendez's trial testimony that no deal existed. See Commonwealth v. McNeil, 487 A.2d 802, 807 n.4 (Pa. 1985) (providing that recantation evidence has often been recognized as one of the least reliable forms of after-discovered evidence). The Commonwealth concludes that the Brady claim lacks merit because the allegedly suppressed evidence, i.e., the undisclosed deal between the Commonwealth and Melendez, simply does not exist. Thus, it submits, any claims alleging the ineffective assistance of trial or appellate counsel for not pursuing the issue likewise fail.

The PCRA court agreed with the Commonwealth and rejected Appellant's Brady claim, finding that he failed to prove that an undisclosed agreement existed. It relied on Melendez's testimony at Appellant's trial that no deal had been made in exchange for his testimony, as well as Attorney Maynard's PCRA hearing testimony that there had been no agreement, express or implied, between Melendez and the Commonwealth. The PCRA court discounted Appellant's reliance on self-serving letters Melendez purportedly wrote to Attorney Maynard, finding that they did not establish that an agreement existed. Further, it rejected as incredible Melendez's declaration, which alleged that the prosecutor promised to drop certain charges in exchange for his testimony. Even assuming that an alleged undisclosed deal existed and was suppressed by the Commonwealth, the PCRA court held that no prejudice resulted because the jury was aware of Melendez's motive to testify falsely against Appellant to obtain leniency in his own prosecution. For all of these reasons, the PCRA court found that prior counsel could not be deemed ineffective for failing to pursue claims relating to a purportedly undisclosed deal between Melendez and the Commonwealth.

Upon careful review, we find that the PCRA court's factual findings are supported by the record and its conclusions of law are free from legal error. In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id., 373 U.S. at 87. This Court has held that "[t]o prove a Brady violation, the defendant must show that: (1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant; and (3) the suppression prejudiced the defendant." Commonwealth v. Pagan, 950 A.2d 270, 291 (Pa. 2008) (citing Commonwealth v. Carson, 913 A.2d 220, 245 (Pa. 2006)).

Because the record supports the factual finding that no undisclosed agreement existed, Appellant has failed to demonstrate that any exculpatory or impeaching evidence was suppressed by the Commonwealth. Attorney Maynard's testimony that he had absolutely no discussions with the prosecutor regarding what Melendez would receive in return for his cooperation in Appellant's prosecution directly refuted Appellant's allegations that the prosecutor promised to drop certain charges against Melendez in exchange for his testimony. The PCRA court credited Attorney Maynard's testimony and found that no agreement had been reached. We decline to disturb that factual finding as it is supported by the record. See Commonwealth v. Koehler, 36 A.3d at 135 (affirming the denial of collateral relief where the PCRA court rejected a Brady claim based on the factual finding that no undisclosed deal existed between the Commonwealth witness and the prosecutor, and such factual finding was supported by the record).

Moreover, we reject Appellant's argument that an agreement was formed merely because Melendez and his counsel expected the prosecutor to drop certain charges if Melendez cooperated. The record demonstrates that such expectations were not based upon any representations made by the prosecutor. N.T., Apr. 14, 2010, at 7. As the Commonwealth cogently noted, this Court held in Champney that a witness's assumption that he will benefit from cooperating in the prosecution of the defendant, without more, is insufficient to establish that an agreement existed, and does not trigger Brady disclosure requirements. Champney, 832 A.2d at 412. Accordingly, because there was no exculpatory or impeaching evidence that the Commonwealth had an obligation to disclose under Brady, Appellant is not entitled to collateral relief on this claim. Moreover, trial counsel was not ineffective for failing to discover the non-existent agreement between Melendez and the Commonwealth, and appellate counsel was not ineffective for failing to preserve this issue on appeal.

II. Failure to Investigate and Present Evidence of Victim's Violent Character

Appellant argues that trial counsel was ineffective for failing to investigate and present evidence of the victim's violent character, and that appellate counsel was ineffective for failing to preserve this issue on appeal. He asserts that such evidence could have been presented during the guilt phase of trial to discredit Melendez's testimony that Appellant shot the victim in retribution for the victim's robbery of Lane, and thereby corroborate Appellant's testimony that he fired shots at the victim solely because he feared him. Specifically, Appellant maintains that had trial counsel called Lane as a witness, Lane would have testified that the victim never robbed him, which, according to Appellant, would have eliminated the Commonwealth's motive, and suggested that Appellant shot the victim out of fear.*fn9 He additionally argues that evidence of the victim's violent character could have been presented through the testimony of Aloisa Rodriguez, who would have testified that Appellant was afraid of the victim and believed his life was in danger. He asserts that he was precluded from presenting Rodriguez's testimony because the trial court denied his request for a continuance. Appellant further suggests that trial counsel should have requested a jury instruction as to the relevance of the evidence of the victim's violent character.

Without elaboration, Appellant additionally asserts that trial counsel was ineffective for failing to present evidence of the victim's previous criminal record and violent character during the penalty phase of trial to support the catchall mitigating circumstance, 42 Pa.C.S. § 9711(e)(8), and the mitigating circumstance of evidence that the defendant was under the influence of extreme mental or emotional disturbance. Id. § 9711(e)(2).

The Commonwealth responds that evidence of the victim's violent character is only admissible if the defendant offered evidence that the victim was the first aggressor,

i.e., that the defendant acted defendant in self-defense. See Commonwealth v. Dillon, 598 A.2d 963, 964-65 (Pa. 1991) (providing that character evidence of the decedent is admissible to prove the decedent's violent propensities where self-defense is asserted and where there is an issue as to the identity of the aggressor); see also Pa.R.E. 404(a)(2)(ii) (providing that, "[i]n a homicide case, where the accused has offered evidence that the deceased was the first aggressor, evidence of a character trait of the deceased for peacefulness is admissible when offered by the prosecution to rebut the same").

Here, the Commonwealth maintains, the evidence indisputably establishes that Appellant was the initial aggressor as he followed the unarmed victim down the street in broad daylight, and fired shots at the victim after declaring his intent to kill him. The victim's previous threats or violent acts cannot justify Appellant's shooting of the victim as self-defense, it submits, because the record is devoid of evidence of any altercation immediately preceding the murder, which would have justified the use of deadly force. See 18 Pa.C.S. § 505.*fn10 In fact, the Commonwealth contends, the record indisputably establishes that the victim posed no immediate threat of physical harm, and that Appellant violated his duty to retreat by pursuing the victim on the street. Thus, the Commonwealth concludes, there is no arguable merit to the underlying claim that trial counsel was ineffective for failing to investigate and present evidence of the victim's violent character.

Moreover, the Commonwealth asserts, Appellant could not have been prejudiced by trial counsel's failure to investigate and present the proffered evidence of the victim's violent character. It submits that the jury was already aware of the victim's violent nature, as Appellant, himself, testified that the victim was a dangerous man who had fired shots at him during an incident approximately two to three weeks before the murder, and that several people had told Appellant that the victim wanted to kill him. N.T., Feb. 18, 1999, at 356-57.

Finally, the Commonwealth refutes Appellant's claim that counsel was ineffective for failing to present the aforementioned evidence of the victim's violent character and criminal record during the penalty hearing. It contends that such evidence does not fall under 42 Pa.C.S. § 9711(e)(8)'s "catchall" mitigating circumstance because it does not involve the "character and record of the defendant" or the "circumstances of his offense." Id. Thus, the Commonwealth concludes, there is no arguable merit to the underlying claim that trial counsel was ineffective for failing to present it, and appellate counsel cannot be deemed ineffective for failing to raise the issue on appeal.

The PCRA court agreed with the Commonwealth, finding that the proffered evidence of the victim's violent character would have been inadmissible at trial because Appellant's own testimony established that he was the aggressor, as he secretly pursued the unarmed victim for several blocks. Even assuming the testimony of Lane and Rodriguez was admissible to establish the victim's character and reputation for violence, the PCRA court held that Appellant was not prejudiced by counsel's failure to present the same because the jury was already aware of the victim's violent nature via Appellant's testimony. The PCRA court further concluded that trial counsel could not be deemed ineffective for failing to request a jury charge regarding evidence of the victim's violent character when the trial court had ruled that Appellant was not entitled to a jury instruction on justification. Accordingly, it held that there was no arguable merit to the claim of trial counsel ineffectiveness, and appellate counsel could not be deemed ineffective for failing to raise a meritless claim on appeal.

Additionally, the PCRA court held that trial counsel was not ineffective during the penalty phase for failing to present the aforementioned evidence of the victim's violent character in support of the catchall mitigating factor of 42 Pa.C.S. § 9711(e)(8) (encompassing any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense). Relying on the statutory language, the court held that such evidence was neither relevant to the character of Appellant, nor germane to the factual circumstances of the shooting. Alternatively, the PCRA court held that Appellant was not prejudiced because, as noted, other evidence established the victim's violent nature and trial counsel urged the jury in his penalty phase closing argument to consider such evidence as support for the catchall mitigating circumstance. N.T., Feb. 19, 1999, at 546 (where trial counsel urged the jury to consider as evidence of the catchall mitigating circumstance that "[t]he person who was killed was obviously a drug dealer, clearly a very violent and dangerous person").

Finally, the PCRA court ruled that the proffered evidence of the victim's violent character would not have supported the Section 9711(e)(3) mitigating circumstance, i.e., that the defendant was acting under the influence of extreme mental or emotional disturbance, because the evidence revealed that Appellant purposefully gathered his cohorts and led them in a pursuit of the victim. Under these circumstances, the PCRA court held that trial counsel cannot be deemed ineffective for failing to investigate and present evidence of the victim's violent character, and the derivative claim of appellate counsel ineffectiveness fails.

Upon review, we conclude that the PCRA court's findings of fact are supported by the record, and its legal conclusions are free of error. This Court has permitted the introduction of character evidence to prove the victim's violent propensities where self-defense is asserted, and where there is a factual issue as to who was the aggressor. Dillon, 598 A.2d at 965 (citing Alexander v. Commonwealth, 105 Pa. 1, 9 (1884)). Pursuant to Section 505 of the Crimes Code, self-defense is established and the use of force is justifiable "when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." 18 Pa.C.S. § 505(a). Significantly, the use of deadly force, however, is not justifiable if the actor provoked the use of force against him or could have avoided the necessity of using force by retreating. Id. § 505(b).

Here, rather than support a theory of self-defense, Appellant's trial testimony refuted it. Specifically, he testified that on the day of the murder, the victim was not carrying a weapon, and did not threaten him in any way. N.T., Feb. 18, 1999, at 379, 372. Further, Appellant conceded that he could have avoided the whole encounter, but instead pursued the victim by following him down the street, and firing two shots in his direction. Id. at 375, 349-50. Considering this evidentiary record, the PCRA court was correct in concluding that evidence of the victim's violent character would not have been admissible at Appellant's trial. Thus, ...


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