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[U] Commonwealth v. Stewart

Superior Court of Pennsylvania

February 12, 2014



Appeal from the Order Entered February 5, 2013, in the Court of Common Pleas of Lancaster County Criminal Division at No. CP-36-CR-0003579-2005




Micah Jermaine Stewart appeals from the order of February 5, 2013, denying his PCRA[1] petition. We affirm.

The PCRA court aptly summarized the facts and procedural history of this matter as follows:

Defendant, Micah Stewart, and Cortney Fry, the victim in this case, met while attending the Lancaster County Academy, an alternative high school. Defendant and Cortney began dating in March of 2003. After several months, Cortney became pregnant, and on July 4, 2004 she gave birth to the couple's daughter, Giovanna. Throughout the pregnancy, Defendant became increasingly suspicious that Cortney was being unfaithful. Eventually, this suspicion led to physical abuse.
On the morning of July 12, 2004, Nicole Bush Sanchez, a friend of Cortney's, received a call from Cortney. Cortney was crying and revealed to Ms. Sanchez that she and Defendant had been up all night fighting about whether or not she was faithful to him. Ms. Sanchez and another friend, Laura Hess, drove to the apartment Cortney shared with Defendant to pick her and the baby up. After noticing marks on Cortney's neck, Ms. Sanchez and Ms. Hess drove Cortney to the police station. Once she reported the abuse, Cortney and the baby went to Ms. Sanchez's mother's home to stay for the night. Defendant called Cortney multiple times throughout the night and during the following day until Ms. Sanchez transported her back to the couple's apartment.
On July 14, 2004, Sandra Peppler, a coordinator from Healthy Beginnings, went to Cortney's apartment for a home visit. During her visit, Ms. Peppler noticed bruising on Cortney's arm, neck and face, and scratches on her chest. Ms. Peppler expressed concern about the injuries and gave Cortney information about women's shelters and abuse hotlines.
The following day, July 15, 2004, Defendant argued with Cortney about what he perceived to be a discrepancy between the time that she said she was working and the amount of time that she was paid for during her pregnancy. Defendant called Cortney's former employer, Home Team, Incorporated, to inquire about how many hours Cortney worked, and whether she engaged in any relationships with her co-workers. Despite being assured that Cortney was "a complete young lady" at work, Defendant became enraged and told Tabitha Flickinger, a Home Team employee, "that's it, you killed her, you killed her baby, and you killed this family."
After speaking with Ms. Flickinger on the phone, Defendant called his sister, Alicia Stewart, to ask if she would settle his dispute with Cortney. Defendant then drove Cortney to his sister's home in Elizabethtown, Pennsylvania. During the car ride, Defendant threw Cortney's glasses out of the vehicle and beat her head against the car window. Defendant also told Cortney that he could take his gun, drive her down a dirt road and shoot her in the head, and that no one would miss her. When he arrived at his sister's apartment, Defendant was yelling and throwing his arms in the air, threatening both Ms. Stewart and Cortney. Defendant informed Ms. Stewart that he beat Cortney during the entire car ride from their apartment in Columbia to her home in Elizabethtown. Additionally, Ms. Stewart observed bruises on Cortney's arms and neck. Ms. Stewart was so threatened by Defendant's behavior that she contacted the police. After the police arrived and spoke with Defendant, Ms. Stewart took Cortney and the baby back to her apartment in Columbia to get some clothing, then to Ms. Sanchez's home so Cortney could spend the evening there.
On July 16, 2004, Ms. Hess and Ms. Sanchez took Cortney to the salon to get her hair styled by Debra Morgan. Ms. Morgan observed four large weeping wounds on Cortney's head while she was preparing to cut her hair. Cortney told Ms. Morgan that the wounds were caused by Defendant grabbing her hair and pulling it out of her head. While Cortney and her friends were at the salon, Defendant called Ms. Sanchez's home incessantly and threatened Ms. Sanchez's mother. After the hair cut, Ms. Hess took Cortney back to Ms. Stewart's home to talk to Defendant.
The next day, July 17, 2004, Cortney's father, Charles Fry, took Cortney to stay with her mother, Holly Fry, for the weekend. Defendant called Ms. Fry's home throughout the weekend attempting to contact Cortney. Defendant would argue with Cortney over the phone, hang up, then call back again. Finally, on Monday, July 19, 2004, Defendant picked Cortney and the baby up and took them back to the couple's apartment.
On July 20, 2004, Defendant took Cortney and the baby for a paternity test in Dallastown, Pennsylvania. The test was performed by Lisa Olphin-Hamberger. Cortney told Ms. Olphin-Hamberger that she was going to leave Defendant and that she planned to take the baby with her. Cortney wanted to use Defendant's cell phone to make arrangements to be picked up from the testing center, but Defendant would not allow her to make a call. Ms. Olphin-Hamberger permitted Cortney to use her cell phone. Cortney contacted her sister, Samantha Groff, and asked to be taken back to her mother's home. Cortney was informed that she could come home, but that she needed to stay there permanently. Ultimately, the paterntity [sic] test determined that Defendant was the father of Cortney's baby.
Later that evening, Ms. Fry called Cortney to discuss an upcoming appointment for post-partum depression. During the phone call, Mr. Fry arrived at the apartment to drop off spring water for Cortney and the baby. Mr. Fry stated that it appeared that Cortney, Defendant and the baby were getting ready to leave the apartment. Jessica Koontz, an employee at Musser's market and Cortney's former co-worker, saw Cortney and Defendant at the grocery store later that evening. Ms. Koontz recalled that the baby was with them, but that Ms. Fry and Defendant were not speaking to each other.
On July 21, 2004, Mr. Fry attempted to call Cortney's apartment at 10:30 A.M., but did not receive an answer. Around 11:00 A.M., Karen Garber, a social worker from Children and Youth, arrived at the apartment. Ms. Garber found Defendant and the baby in the apartment, but Cortney was not present. In the early afternoon, Mr. Fry came to the apartment and found Defendant alone. Defendant told Mr. Fry that he went to the store the evening before, and that when he returned home, Cortney was gone. Later that day, Defendant threw away many of Cortney's clothes and personal items in a dumpster near the apartment. That evening, after attempting unsuccessfully to locate Cortney, Mr. Fry contacted the Columbia Borough Police Department and reported his daughter missing.
On July 22, 2004, Officer Edgar Mann of the Columbia Borough Police Department went to Defendant's apartment to question him about Cortney's disappearance. Defendant gave Officer Mann permission to search the apartment. Officer Mann found two young girls, ages 14 and 15, in the bathroom. One of the girls, 15 year old Rozalyn McAleer, stated that she was Defendant's girlfriend. Ms. McAleer additionally revealed that she had engaged in sexual intercourse with Defendant that evening.
The following day, July 23, 2004, Sergeant Jack Brommer of the Columbia Borough Police Department interviewed Defendant about Cortney's disappearance. Defendant told Sergeant Brommer that on July 20, 2004, he dropped Cortney and the baby off at the couple's apartment around 7:30 or 8:00 P.M., and that afterwards he went to his father's home.
Later that night, Manny Santos, one of Defendant's former neighbors, received a call from Defendant stating that he was traveling to Delaware to visit a female friend, Kristina Arnold. Four days later, on July 27, 2004, Defendant returned from Delaware. Chief Michael Landis of the Lancaster City Police Department interviewed Defendant about Cortney's disappearance at his mother, Cindy Adams', home. During the interview, Defendant consented to a search of his apartment and of his car.
After the interview concluded, Defendant met with his step-brother, Lemuel James. Defendant told Mr. James that, during an argument, he choked Cortney to death. Defendant also informed Mr. James that he disposed of Cortney's body by burning it in a field. Following this conversation, Mr. James drove Defendant to his aunt's home in Brooklyn, New York. After returning from New York, Mr. James told his mother, Angelica Rivera, where he had taken Defendant. Ms. Rivera insisted that she and Mr. James drive to New York and bring Defendant back to Columbia. Several days after returning from New York, Defendant again confessed to murdering Cortney, this time to Ms. Rivera.
On January 22, 2005, while rabbit hunting in Manor Township, James Ortman discovered skeletal remains in a field. Two days later, Dr. Stefan Bender, Cortney's dentist, identified the remains as Cortney Fry's through the use of dental records. The remains and the surrounding area had been heavily damaged by a fire. Several of Cortney's bones were broken or chipped, particularly around the ribs, thigh, nose, and jaw areas, and some of her teeth were broken. Additionally, a circular hole was present on the left side of Cortney's skull. Forensic pathologists concluded that a long fixed object was used to penetrate the skull. Cortney's cause of death was determined to be multiple traumatic injuries and the manner of death was deemed to be homicide.
A search of Defendant's car revealed the fingertips of a latex glove stained with blood and plant matter that was also found at the location where Cortney's remains were discovered. Additionally, a screwdriver recovered from the trunk of Defendant's car was the correct size and length to create the circular hole on the side of Cortney's skull.
On July 14, 2005, Defendant was charged with one Count of Criminal Homicide for the murder of Cortney Fry. After a six day trial, on December 13, 2006, Defendant was found guilty of the First Degree Murder. At trial, Defendant was represented by Attorney Roger Renteria with Attorney Jay Whittington serving as standby counsel. On February 5, 2007, Defendant was sentenced to a term of life in prison without the possibility of parole. After filing a timely Notice of Appeal to the Superior Court of Pennsylvania, Defendant's sentence was affirmed on December 19, 2007. Defendant then filed a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, which Petition was denied on September 23, 2008. On June 23, 2009, Defendant filed a pro se Petition for Post-Conviction Collateral Relief and was appointed counsel. An Amended Petition was filed on May 7, 2010. A PCRA hearing was held on October 20, 2010, however, due to counsel's inability to secure an essential witness, a portion of the hearing was continued to April 20, 2012. Defendant is claiming ineffective assistance of counsel and violations of the Constitution of the Commonwealth of Pennsylvania and laws of the United States.

PCRA court opinion, 2/5/13 at 1-9 (citations to the record omitted).[2]

Appellant has raised the following issues for this court's review:

A. Whether trial counsel was ineffective when he claimed in his opening statement that [appellant] had a[c]quired certain enemies since he had occasionally sold drugs when these statements were not supported by the record and needlessly attributed prior criminal conduct to [appellant]?
B. Whether trial counsel was ineffective when he failed to object to the testimony of Officer Michael Lyons to the effect that Courtney [sic] Fry told him that [appellant] threatened to "fucking shoot her" when this testimony was inadmissible hearsay and violated [appellant]'s confrontation rights?
C. Whether trial counsel was ineffective when he failed to object to the Commonwealth being permitted to ask Angelica Rivera leading question[s]?
D. Whether trial counsel was ineffective when he failed to object to the court's defective instruction defining malice?
E. Whether appellate counsel was ineffective when he failed to raise during the direct appeal that Exhibits 9, 10, 13, 14, 21 and 22 had been erroneously given to the jury during deliberations since those exhibits were unfairly prejudicial?
F. Whether trial counsel was ineffective when he failed to object to certain hearsay declarations by the victim which were unfairly prejudicial?

Appellant's brief at 4.

Initially, we recite our standard of review:
This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795, 799 n. 2 (2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).

"To prevail on a claim alleging counsel's ineffectiveness, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness." Commonwealth v. Wallace, 555 Pa. 397, 407, 724 A.2d 916, 921 (1999), citing Commonwealth v. Howard, 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994) (other citation omitted). In order to meet the prejudice prong of the ineffectiveness standard, a defendant must show that there is a "'reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Commonwealth v. Kimball, 555 Pa. 299, 308, 724 A.2d 326, 331 (1999), quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A "'[r]easonable probability' is defined as 'a probability sufficient to undermine confidence in the outcome.'" Id. at 309, 724 A.2d at 331, quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal denied, 574 Pa. 765, 832 A.2d 435 (2003). "We presume counsel is effective and place upon Appellant the burden of proving otherwise. Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004) (citations omitted).

In his first issue on appeal, appellant argues that trial counsel was ineffective for claiming in his opening statement that appellant was a drug dealer. There was never any evidence presented at trial that appellant was actually a drug dealer. Trial counsel remarked,

In fact, [appellant] had a lot of enemies in Columbia, Pennsylvania. There is no doubt about that. There are a lot of people who would like to see [appellant] -- something bad happen to him. Why? I am going to tell you right now. I don't want to hide anything from you. There is no reason to do that. [Appellant] was selling drugs from time to time. He was. There, I don't want you to think that I am trying to hide that fact. He had, because of his activities, many, many enemies.

Notes of testimony, 12/4/06 at 56.

Trial counsel explained that his strategy was to argue that police focused their attention on appellant, to the exclusion of other potential suspects. Trial counsel's strategy was to seek an outright acquittal by arguing that someone other than appellant could have killed the victim.

In preparing the trial and looking over my notes, I recalled from the previous – we had done an attempted homicide trial for [appellant] and we had utilized somewhat of the same type of strategic positioning, wherein we were trying to put in the jury's mind right at the beginning of the trial that [appellant] had enemies, and that the police were somehow focussing solely on him based upon prior acts he committed in the community. And knowing this and having success on the previous trial with that, I decided to put that to the jury so they could have some form of, I don't know, starting point, as far as how the trial strategy was going to go and how my closing argument was going to be fashioned.

Notes of testimony, 10/20/10 at 6-7.

In Commonwealth ex rel. Washington v. Maroney, [427] Pa. [599], 235 A.2d 349 (1967), [overruled on other grounds by Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), ] we held that before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy Actually employed was so unreasonable that no competent lawyer would have chosen it.

Commonwealth v. Hill, 427 Pa. 614, 616-617, 235 A.2d 347, 349 (1967). "If a reasonable basis exists for the particular course, the inquiry ends and counsel's performance is deemed constitutionally effective." Commonwealth v. Abdul-Salaam, 570 Pa. 79, 84, 808 A.2d 558, 561 (2001), citing Commonwealth v. Derk, 553 Pa. 325, 333, 719 A.2d 262, 266 (1998) (opinion in support of affirmance).

Nor can a claim of ineffective assistance generally succeed through comparing, by hindsight, the trial strategy employed with alternatives not pursued. A finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.

Commonwealth v. Miller, 572 Pa. 623, 646, 819 A.2d 504, 517 (2002), cert. denied, 540 U.S. 827 (2003) (citation omitted).

It cannot be said that counsel's strategy was inherently unreasonable; indeed, apparently it had produced a successful result for appellant in a previous trial. As the PCRA court observes, the fact that the strategy did not result in an acquittal in this particular case does not make it unreasonable. (PCRA court opinion, 2/5/13 at 13.) Appellant asserts that drug dealers are "one of the most reviled categories of criminality." (Appellant's brief at 16.) However, it is not as though trial counsel told the jury that appellant was a child sexual predator, terrorist, or traitor, a far more prejudicial characterization. Given the strength of the Commonwealth's case, trial counsel felt that he had to give the jury something to hold onto. (Notes of testimony, 10/20/10 at 24-26.)

Furthermore, we agree with the PCRA court that appellant was unable to demonstrate prejudice in this case, where the evidence was overwhelming. (PCRA court opinion, 2/5/13 at 13-14.) The Commonwealth proved motive through appellant's history of physical and mental abuse of the victim, and his suspicion that he was not the father of the victim's child. After the victim disappeared, appellant immediately began cleaning up the apartment and disposing of the victim's belongings. Physical evidence, including the possible murder weapon, was found in appellant's vehicle. Appellant initially fled the jurisdiction, before being brought back by his stepmother. Most damning, appellant confessed to killing the victim to his stepmother and stepbrother. In the face of such overwhelming evidence of appellant's guilt, appellant cannot possibly show that but for trial counsel's opening statement in which he referred to appellant as a drug dealer, the jury's verdict would have been different.

In his second issue on appeal, appellant complains that trial counsel was ineffective for allowing Officer Lyons to testify, without objection, that the victim told him appellant threatened to "fucking shoot her." According to appellant, this was inadmissible hearsay. In the alternative, appellant argues that this testimony violated his constitutional right of confrontation.

Officer Michael Lyons testified that he was called to appellant's sister's house in Elizabethtown for a domestic incident. (Notes of testimony, 12/5/06 at 250.) Officer Lyons spoke with the victim, who was crying and visibly upset. (Id. at 253.) The victim related that appellant had been beating her, and had threatened to "fucking shoot her." (Id. at 253-254.) The victim stated that appellant had a gun, but she was not sure if he had it on him. (Id. at 254.) Police performed a pat-down of appellant but did not find a gun on his person. (Id.) Officer Lyons could not effectuate an arrest because the victim was unsure if any of the alleged criminal acts occurred in his jurisdiction of Elizabethtown. (Id. at 253, 258-259.) The victim also indicated that she did not wish to press charges. (Id. at 254, 260.)

The PCRA court found that the victim's statement qualified as an excited utterance under Pa.R.E. 803(2), and therefore counsel was not ineffective for failing to object.

As is well-settled, excited utterances fall under the common law concept of res gestae. Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858, 860 (Pa.1978). Res gestae statements, such as excited utterances, present sense impressions, and expressions of present bodily conditions are normally excepted out of the hearsay rule, because the reliability of such statements are established by the statement being made contemporaneous with a provoking event. Id. While the excited utterance exception has been codified as part of our rules of evidence since 1998, see Pa.R.E. 803(2), the common law definition of an excited utterance remains applicable, and has been often cited by this Court:
[A] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties. . . . Thus, it must be shown first, that [the declarant] had witnessed an event sufficiently startling and so close in point of time as to render her reflective thought processes inoperable and, second, that her declarations were a spontaneous reaction to that startling event.
Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 495-96 (Pa.2009) (quoting Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704, 712 (Pa.1992)). The circumstances surrounding the statements may be sufficient to establish the existence of a sufficiently startling event.

Commonwealth v. Murray, ___A.3d ___, 2013 WL 6831852 at *14-15 (Pa. December 27, 2013) (citations omitted).

Instantly, Officer Lyons testified that the victim was upset and crying when she made the statement that appellant had threatened to shoot her. (Notes of testimony, 12/5/06 at 253.) The victim stated that appellant had been beating her, starting in Columbia. (Id.) Under these circumstances, the victim's statement was plausibly admissible as an excited utterance. See Murray, supra (murder victim's statement that, "Oh, my God, they're going to kill me. They're going to kill me, " after receiving a telephone call, was admissible as an excited utterance). Therefore, the underlying issue lacks merit.

Furthermore, trial counsel had a reasonable basis for not objecting to the statement. Appellant had made a pre-trial motion in limine to exclude evidence of prior bad acts which was denied. (Notes of testimony, 10/20/10 at 10.) The trial court ruled that the Commonwealth could introduce evidence of prior uncharged bad acts, including physical and emotional abuse and threats to kill the victim. Because of the court's ruling, trial counsel made the strategic decision not to object to every single piece of hearsay evidence. (Id. at 10-11.) This was a reasonable strategy. In addition, appellant cannot demonstrate prejudice where there was an abundance of non-hearsay evidence of his abusive conduct towards the victim, including his own statements and actions personally observed by others. (Notes of testimony, 4/20/12 at 18.)

Appellant also claims that Crawford v. Washington, 541 U.S. 36 (2004), compels a new trial. In Crawford, the United States Supreme Court held that out-of-court testimonial statements by witnesses are barred, under the Confrontation Clause, unless the witnesses are unavailable and the defendant had a prior opportunity to cross-examine them, regardless of whether such statements are deemed "reliable" by the trial court. We agree with the PCRA court that in this case, the victim's statement to Officer Lyons was not testimonial in nature. More importantly, however, Crawford does not apply retroactively on collateral appeal. Commonwealth v. Brandon, 51 A.3d 231, 236 (Pa.Super. 2012) (citations omitted). This claim fails.

In his third issue on appeal, appellant claims trial counsel was ineffective for failing to object when the Commonwealth was permitted to treat Angelica Rivera ("Rivera") as a hostile witness and ask leading questions.

Leading questions should not be used on the direct or redirect examination of a witness except as may be necessary to develop the witness' testimony. . . . When a party calls a hostile witness, . . . interrogation may be by leading questions. . . .
Pa.R.E. 611(c). As discussed in Commonwealth v. Lambert, 765 A.2d 306, 360 (Pa.Super.2000), the "trial judge has wide discretion in controlling the use of leading questions." "The court's tolerance or intolerance for leading questions will not be reversed on appeal absent an abuse of discretion." Lambert, 765 A.2d at 360. A witness may be treated as hostile by the party calling him where the testimony of the witness is unexpected, contradictory to earlier statements, and harmful to the party calling the witness, and where an injustice would result if the request to treat the witness as hostile is denied. Id. at 357-59.

Commonwealth v. Bibbs, 970 A.2d 440, 453 (Pa.Super. 2009), appeal denied, 603 Pa. 683, 982 A.2d 1227 (2009).

Here, Rivera testified that she is like a mother to appellant, having lived with his father since 1992. (Notes of testimony, 12/6/06 at 715.) Rivera essentially raised appellant from the time he was six years old and considers him her son. (Id. at 716-717.) It was clear from Rivera's testimony that she did not want to cooperate with the Commonwealth. Rivera claimed she could not remember what appellant told her regarding the victim's death. (Id. at 726.) Rivera testified that appellant told her he merely slapped the victim, which conflicted with her grand jury testimony. (Id.) Eventually, after the trial court granted the Commonwealth permission to treat her as a hostile witness, Rivera admitted that appellant told her he suffocated the victim, dumped her body out of the rear bedroom window, took her body to a remote area and burned it. (Id. at 729-730.)

Clearly, Rivera was a reluctant witness, feigning loss of memory and refusing to acknowledge her prior grand jury testimony. The trial court did not abuse its discretion in allowing the Commonwealth to ask leading questions, and trial counsel was not ineffective for failing to object. As trial counsel explained at the PCRA hearing,

But what was occurring in this situation was the witness was rescinding and refusing to testify to information that was prior -- I think it was prior testimony on the record. And, as a result of that and her unwillingness to elicit or answer questions with regard to prior testimony, she was being combative to a certain degree with the prosecutor.

Notes of testimony, 10/20/10 at 13. This issue lacks merit.

Next, appellant argues that trial counsel was ineffective for failing to object to the trial court's jury instruction on the definition of malice. According to appellant, the instruction was incomplete because it did not inform the jury that a defendant can be found guilty of third degree murder if he intends to inflict serious bodily injury upon the victim, and such actions result in her death.

Our standard of review with respect to jury instructions is well settled. When reviewing a challenge to part of a jury instruction, we must review the jury charge as a whole to determine if it is fair and complete. See Commonwealth v. Hawkins, 549 Pa. 352, 390, 701 A.2d 492, 511 (1997). A trial court has wide discretion in phrasing its jury instructions, and "can choose its own words as long as the law is clearly, adequately, and accurately presented to the jury for its consideration." Id., at 391, 701 A.2d at 511. The trial court commits an abuse of discretion only when there is an inaccurate statement of the law. See id.

Commonwealth v. Einhorn, 911 A.2d 960, 975 (Pa.Super. 2006), appeal denied, 591 Pa. 723, 920 A.2d 831 (2007).

The trial court's instruction on malice was as follows:
The word malice, as I am using it, has a special legal meaning. It does not mean simply hatred, spite, or ill-will. Malice is a shorthand way of referring to a particular mental state that the law regards as being bad enough to make a killing murder. For murder of the third degree, a killing is with malice if the perpetrator's actions show his wanton and willful disregard of an unjustified and extremely high risk that his conduct would result in death or serious bodily injury to another. In this form of malice, the Commonwealth need not prove that the perpetrator specifically intended to kill another. The
Commonwealth must prove, however, that the perpetrator took action while consciously, that is, knowingly, disregarding the most serious risk he was creating, and that, by his disregard of that risk, the perpetrator demonstrated his extreme indifference to the value of human life. When deciding whether or not the defendant acted with malice, you should consider all the evidence regarding his words, conduct, and the attending circumstances that may show his state of mind.

Notes of testimony, 12/12/06 at 1407-1408.

The trial court gave the standard suggested jury instruction for third degree murder and malice. (PCRA court opinion, 2/5/13 at 24.) The trial court's instruction was thorough and complete. Trial counsel had no reason to object to the instruction.

Next, appellant argues that appellate counsel was ineffective for failing to raise on direct appeal whether the trial court erred by allowing certain photographs of the victim's skeletal remains to go out with the jury during their deliberations. One of the photographs depicted the alleged murder weapon, a screwdriver, inserted into a hole in the victim's skull. Trial counsel objected to these exhibits being viewed by the jury during deliberations but the objection was overruled. Appellate counsel did not raise the issue on direct appeal.

To the extent that appellant assails prior counsel for his failure to raise claims on appeal, as opposed to his failure to raise them at trial, that is a stage of the proceeding that is also subject to the settled Strickland test for counsel ineffectiveness. Smith v. Robbins, 528 U.S. 259, 285-89, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (petitioner "must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel"). Claims involving appellate counsel ineffectiveness, moreover, involve concerns unique to appellate practice. Arguably meritorious claims may be omitted in favor of pursuing claims which, in the exercise of appellate counsel's objectively reasonable professional judgment, offer a greater prospect of securing relief. Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). "[A]ppellate counsel . . . need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Robbins, 528 U.S. at 288, 120 S.Ct. 746 (characterizing Barnes). "This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), quoting Barnes, 463 U.S. at 751-52, 103 S.Ct. 3308. See also Buehl v. Vaughn, 166 F.3d 163, 174 (3d Cir.1999) ("One element of effective appellate strategy is the exercise of reasonable selectivity in deciding which arguments to raise.").

Commonwealth v. Lambert, 568 Pa. 346, 366-367, 797 A.2d 232, 244 (2001) (footnotes omitted).

Pa.R.Crim.P. 646 governs "Material Permitted in Possession of the Jury." The rule states, in pertinent part, that:
(A) Upon retiring, the jury may take with it such exhibits as the trial judge deems proper, except as provided in paragraph (C).
(C) During deliberations, the jury shall not be permitted to have:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded confession by the defendant;
(3) a copy of the information; and
(4) except as provided in paragraph (B), written jury instructions.
Pa.R.Crim.P. 646. "Whether an exhibit should be allowed to go out with the jury during its deliberation is within the sound discretion of the trial judge." Commonwealth v. Merbah, 270 Pa.Super. 190, 411 A.2d 244, 247 (1979) (citing Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973)); Pa.R.Crim.P. 1114 (renumbered 646, effective April 1, 2001).
The underlying reason for excluding certain items from the jury's deliberations is to prevent placing undue emphasis or credibility on the material, and de-emphasizing or discrediting other items not in the room with the jury. If there is a likelihood the importance of the evidence will be skewed, prejudice may be found; if not, there is no prejudice per se and the error is harmless.
Commonwealth v. Dupre, 866 A.2d 1089, 1103 (Pa.Super.2005) (quoting Commonwealth v. Strong, 575 Pa. 433, 836 A.2d 884, 888 (2003)).

Commonwealth v. Barnett, 50 A.3d 176, 193-194 (Pa.Super. 2012), appeal denied, ___Pa. ____, 63 A.3d 772 (2013).

In interpreting this rule, this Court has noted that such trial court decisions are committed to the trial court's discretion and will not be reversed absent an abuse of that discretion. Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976). An abuse of discretion "is not merely an error of judgement, but if in reaching a conclusion the law is overridden or misapplied, or the judgement exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence of record, discretion is abused." Melzer v. Witsberger, 505 Pa. 462, 475, 480 A.2d 991, 997 (1984).

Commonwealth v. Rucci, 543 Pa. 261, 285, 670 A.2d 1129, 1141 (1996) (additional citation omitted), cert. denied, Rucci v. Pennsylvania, 520 U.S. 1121 (1997).

The photographs in question were not prohibited under paragraph (C) of the rule; therefore, it was within the trial court's discretion whether to allow them to be sent out with the jury. They were not gory or bloody, they were photographs of the victim's skeletal remains. The trial court determined that they were not graphic or offensive and would aid the jury in their deliberations. (PCRA court opinion, 2/5/13 at 25.) The photographs were important to show the condition of the victim's remains and to help establish the cause and manner of death. The photograph of the screwdriver, which was found in the trunk of appellant's car, showed that it could have been used to create the puncture wound in the victim's skull. Appellate counsel explained that he did not raise the issue on direct appeal because he felt there were other, more meritorious issues to be raised:

My only reason would have been that once the record was read and reviewed in its entirety, I made the decision to go forward with what I viewed to be the best appellate issues versus all possible appellate issues. And I went with the six issues that you made reference to earlier in this proceeding.

Notes of testimony, 4/20/12 at 7. We determine that the trial court did not abuse its discretion in allowing the photographs to be used by the jury during deliberations, and the issue would not have afforded appellant relief on appeal in the form of a new trial. Therefore, direct appeal counsel cannot be deemed ineffective for choosing not to raise it.

Finally, appellant claims trial counsel was ineffective for failing to object to hearsay statements by the victim to Nicole Sanchez and Laura Hess to the effect that appellant beat her up, they had been fighting, etc. The PCRA court found that these statements were admissible either as excited utterances or present sense impressions under Pa.R.E. 803(1) and 803(2). We need not address whether the challenged statements fell within any exception to the rule against hearsay because we determine, for the same reasons discussed when evaluating Officer Lyons' testimony, that appellant cannot satisfy the third prong of the Strickland test, i.e., prejudice.[3] There was ample evidence concerning appellant's past physical and mental abuse of the victim. In addition, the evidence in this case was overwhelming, including appellant's admissions to his stepbrother and stepmother that he killed the victim. Exclusion of the challenged statements would not have altered the jury's verdict. Order affirmed.

Judgment Entered.

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