Submitted August 5, 2013
[Copyrighted Material Omitted]
Appeal from the PCRA Order of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0010713-2008. Before OVERTON, J.
Burton A. Rose, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.[*]
Appellant, Brandon Denzel Charleston, appeals from the order dismissing his counseled first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § § 9541-9546, without a hearing, as without merit. Appellant claims ineffective assistance of trial counsel. We affirm.
On August 25, 2009, a jury convicted Appellant of murder of the first degree, 18 Pa.C.S.A. § 2502(a), and possessing an instrument of crime with intent to employ it criminally (PIC), 18 Pa.C.S.A. § 907(a). Appellant's conviction arose out of his fatal shooting of William Stanton, a long-time friend, on June 15, 2008, at the home of Tracey Leslie, 2428 North 25th Street, in North Philadelphia.
At the time of the shooting, Appellant and Stanton were the only people in the house. Appellant claimed Stanton pulled a gun on him in an argument over the purchase of Xanax pills. At trial, the Commonwealth acknowledged that Stanton was a drug dealer in the neighborhood. (See N.T. Trial, 8/18/09, at 180-81).
Appellant, who testified on his own behalf at trial, maintained that he acted in self-defense. (See, e.g., N.T. Trial, 8/24/09, 41) (" I thought he was going to kill me. You know, I was fearing for my life." ); see also Commonwealth v. Charleston, 2011 PA Super. 32, 16 A.3d 505, 508 (Pa. Super. 2011), appeal denied, 612 Pa. 696, 30 A.3d 486 (Pa. 2011) (" The evidence adduced at trial showed that Appellant shot and killed William Stanton (the victim). Appellant claimed, in a statement to the police and at trial, that he acted in self defense." )).
According to Appellant, the shooting occurred after he tried to bargain with Stanton for more Xanax pills with the same amount of money. (See N.T. Trial, 8/24/09, at 38-39; 71-73). He claimed that Stanton pulled a handgun, and the two struggled over the weapon. (See id. at 40-41). Appellant admitted he shot Stanton three times. (Id. at 42) (" You know, pow, pow, pow. It wasn't drawn out like, you know, it happened and then it happened and happened. It happened all at once. It happened all at once." ). Appellant testified that he left the house and threw the gun into a sewer outside the house. (See id. at 44). However, the handgun was never recovered.
Stanton received three gunshot wounds: a horizontal wound to the chest, a downward wound to the right lower part of the abdomen, and a downward wound to the thigh exiting out the side of the right knee. (See N.T. Trial, 8/21/09, at 79-80). When Tracey Leslie returned to his house he found Stanton lying on the floor face down. He called 911. Stanton was pronounced dead at Temple University Hospital at 3:46 p.m. on the same day by Dr. Julie Toto. (See N.T. Trial, 8/21/09, at 68).
About a month later, on July 16, 2008, while the police were investigating an unrelated
gang murder, the mother of the victim in this case, Clara Stanton, approached Officer Anthony Soliman and told him that the man he was interviewing in the police car, Appellant, had shot her son, William Stanton. (See N.T. Trial, 8/20/09, at 61, 171-72). Officer Soliman asked Appellant if he knew anything about William Stanton. He said " [N]o, I don't." (Id. at 176).
Officer Soliman transported Appellant to the Homicide Unit where detectives determined that he could not be interviewed because he was intoxicated. (See id. at 177; N.T. Trial, 8/21/09, at 150). Homicide Detective Greg Singleton interviewed Appellant the next day. (See N.T. Trial, 8/21/09, at 151). After receiving Miranda  warnings, Appellant gave a statement to Detective Singleton and his partner Detective Dove, which he then read and signed. (See id. at 168-69). As already noted, Appellant claimed self-defense. The statement was read into the trial record. (See id. at 168) (" It was self defense. It's not like I pointed it at him and shot him or nothing like that." ).
At trial, after Appellant's direct testimony, on cross-examination the Commonwealth established numerous inconsistencies in his various versions of the incident, perhaps most notably his denial that he had any knowledge that the victim had been shot when he left the house. (See N.T. Trial, 8/24/09, at 133) (" I couldn't believe that. I didn't even know that he was shot. I just tried to, you know, I thought he was shot because he wasn't answering me when I was talking to him, but I didn't know for sure that he was shot." ) (emphasis added).
During their investigation of the homicide the police determined that Ms. Stanton's belief that Appellant had shot her son, which prompted her to alert the police, stemmed from a general understanding in the neighborhood, or " word on the street." (N.T. Trial, 8/20/09, at 130; see also id. at 180).
At trial, the Commonwealth also attempted to elicit specific testimony from Nashua Sanders, a relative of Ms. Stanton's neighbors, that she had told Ms. Stanton that Appellant, with whom she was friends, had told her a week before the murder that he planned to rob William Stanton. However, on the stand, Ms. Sanders denied making the statement, or speaking at all with Ms. Stanton, beyond giving her condolences. (See id. at 35).
Ms. Stanton testified that on the day her son was killed he had between $600 to $650 on his person. (See id. at 45). He was also carrying a black wallet and a Pennsylvania ID card. (See id. at 47). Ms. Stanton never saw these items again. (See id.). Detective Kevin Judge testified that when he did a full body inspection of William Stanton for the homicide investigation at Temple University Hospital, he found Stanton's clothes, in a bag, a set of keys, a cell phone, and three dollars. (See id. at 96).
Later in the trial the Commonwealth recalled Ms. Stanton. The trial court permitted Ms. Stanton to testify that Ms. Sanders had told her that Appellant told her (Ms. Sanders) that he planned to rob William Stanton, as a statement inconsistent with Ms. Sanders' denial at trial. (See id. at 112). Immediately after Ms. Stanton completed her testimony, the trial
court gave the following cautionary instruction, sua sponte :
Ladies and gentlemen, with regard to the testimony that you just heard, I'm just going to give you an instruction and that evidence is not necessarily to be accepted for the truth of the statements made by Ms. Sanders to Ms. Stanton, okay. It doesn't--they were statements and you will be given additional instructions at the appropriate time.
Okay, next witness.
(Id. at 116).
Dr. Sam Gulino, the Chief Medical Examiner for the City of Philadelphia, testified as an expert in forensic pathology for the Commonwealth. (See N.T. Trial, 8/21/09, at 62-95). Dr. Gulino testified that, based on the nature of the wounds and the amount of soot from gunpowder residue on the clothing and the wounds, the wound to the chest was " within [a] range of eight inches," (id. at 78), the wound to the abdomen in the pelvic region a greater distance, but less than three feet, (see id.), and the wound to the thigh, two feet or more (see id. at 79). Mr. Gamal Emira, testifying without objection as an expert in forensic science, reached similar conclusions about the range of fire for the three wounds. (See id. at 106-10).
Officer Louis Grandizio, of the Philadelphia Police Firearms Identification Unit testified for the Commonwealth as an expert in ballistics evidence, by agreement of defense counsel. (See id., at 116-46). Officer Grandizio testified that for a handgun to fire three times, the trigger would have to be pulled three separate times. (See id. at 128). In his expert opinion, because of the six to seven pounds of pressure required to pull the trigger, the ejection of the spent cartridge, and the natural recoil of the handgun, it could not have fired three or four times in rapid succession during a struggle for possession, as maintained by the defense. (See id. at 129-131). Officer Grandizio testified that in his expert opinion, in the kind of struggle described by the defendant, the gun would probably jam after the first round was fired. (See id. at 132).
In his closing argument, defense counsel stressed that his client was " quite candid with you in terms of what happened[.]" (N.T. Trial, 8/24/09, at 156). Counsel also noted that " despite the fact that he [Appellant] didn't have to say nothing [sic] was eager to see him [Homicide Detective Greg Singleton] and was eager to tell just what happened." (Id. at 157). Similarly, trial counsel argued that " [Appellant] had nothing to hide. And he [Appellant] told [Detective Singleton] just what happened." ). (Id. at 158).
During closing argument for the Commonwealth, the prosecutor first compared the credibility of the testimony of Nashua Sanders to that of Clara Stanton, the victim's mother. (See id. at 168-69). The prosecutor also challenged Appellant's credibility by highlighting some of the inconsistencies in his testimony, specifically characterizing his claim of self-defense as a " joke," " nonsense," and " potentially some of the craziest testimony that has been heard in this city." (Id. at 192-93).
The trial court instructed the jury that evidence of Appellant's prior criminal convictions, introduced by stipulation, (see id. at 145-46), was not evidence of Appellant's guilt, but could be used by the jury to help them judge the credibility and weight of the testimony given by him at trial. (See id. at 227).
On August 25, 2009, the jury convicted Appellant of murder of the first degree,
and possession of an instrument of crime with intent. (See N.T. Trial, 8/25/09, at 8; see also Verdict Slip, 8/25/09). At the request of defense counsel, the court polled the jury. (See N.T. Trial, 8/25/09, at 8-10). The verdict was unanimous on both counts. (See id.).
On September 23, 2009, the trial court sentenced Appellant to life imprisonment on the murder conviction and to a concurrent term of not less than three months nor more than twenty-four months' imprisonment on the PIC conviction. The court denied Appellant's post sentence motion on October 6, 2009. On direct appeal, this Court affirmed Appellant's judgment of sentence in a published opinion. (Commonwealth v. Charleston, 2011 PA Super. 32, 16 A.3d 505 (Pa. Super. 2011)). Our Supreme Court denied allowance of appeal on September 27, 2011. (Commonwealth v. Charleston, 612 Pa. 696, 30 A.3d 486 (Pa. 2011)).
Appellant timely filed the instant counseled petition for PCRA relief on February 2, 2012, claiming ineffective assistance of trial counsel. The Commonwealth responded with a motion to dismiss filed on June 12, 2012. The PCRA court filed notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907, on November 2, 2012, and as already noted, dismissed it, expressly denying relief, on November 26, 2012. This timely appeal followed.
Appellant presents four questions for our review:
I. Was the Appellate [sic] denied effective assistance of counsel for the failure to request a proper limiting instruction regarding a hearsay statement attributed to Nashua Sanders by Commonwealth witness Clara Stanton that was used as substantive evidence of Appellant's intent to commit murder and robbery?
II. Did trial counsel provide ineffective assistance in failing to object to prosecutorial misconduct in the prosecutor's closing speech to the jury suggesting that the Appellant had a motive to commit robberty [sic] due to umemployment [sic] and that the Appellant's testimony lacked credibilty [sic] ?
III. Did trial counsel provide ineffective assistance by failing to object when the trial court instructed the jury that the prosecution had proven that the Appellant had " a bad reputation for telling the truth" ?
IV. Did trial counsel provide ineffective assistance of counsel by failing to request that the jury be instructed regarding involuntary manslaughter and/or homicide by misadventure?
(Appellant's Brief, at 3).
Our standard and scope of review for the denial of a PCRA petition is well-settled.
[A]n appellate court reviews the PCRA court's findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error. The 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 prevailing party at the trial level.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations and internal quotation marks omitted).
In this appeal, all of Appellant's claims challenge the effectiveness of trial counsel.
[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii). 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. In Pennsylvania, we have refined the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] performance and prejudice test into a three-part inquiry. See [Commonwealth v.] Pierce[, 515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. If a petitioner fails to prove any of these prongs, his claim fails. Generally, counsel's assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client's interests. Where matters of strategy and tactics are concerned, 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. To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.
Id. at 311-12 (most case citations, internal quotation marks and other punctuation omitted). Our Supreme Court added:
As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error. Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 472 (2004). This Court has addressed the difference as follows:
[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.' Pierce, 515 Pa. at 162, 527 A.2d at 977. This standard is different from the harmless error analysis that is typically applied when determining whether the trial court erred in taking or failing to take certain action. The harmless error standard, as set forth by this Court in Commonwealth v. Story,
476 Pa. , 409, 383 A.2d , 164 [(1978)] (citations omitted), states that " [w]henever there is a 'reasonable possibility' that an error 'might have contributed to the conviction,' the error is not harmless." This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the Pierce prejudice standard, which requires the defendant to show that counsel's conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant's Sixth Amendment right to counsel. Pierce, supra.
Gribble, 580 Pa. at 676, 863 A.2d at 472 (emphasis in original).
Id. at 315. Similarly, this Court has explained:
To overcome the presumption of effectiveness, Appellant must establish three factors: first that the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that Appellant was prejudiced. Counsel's assistance is deemed constitutionally effective once this Court determines that the defendant has not established any one of the prongs of the ineffectiveness test.
Commonwealth v. Rolan, 2008 PA Super. 291, 964 A.2d 398, 406 (Pa. Super. 2008) (citations and internal quotation marks omitted) (emphasis in original).
This Court has also explained: " The Pennsylvania Superior Court has held that Appellant's claims 'must meet all three prongs of the test for ineffectiveness, if the court can determine without an evidentiary hearing that one of the prongs cannot be met, then no purpose would be advanced by holding an evidentiary hearing.'" Commonwealth v. Jones, 942 A.2d 903, 906, 2008 PA Super. 16 (Pa. Super. 2008), appeal denied, 598 Pa. 764, 956 A.2d 433 (Pa. 2008) (citation omitted).
In this appeal, three of Appellant's four ineffectiveness issues claim the failure to request or object to jury instructions.
[Our Supreme] Court has recognized that counsel are not constitutionally required to forward any and all possible objections at trial, and the decision of when to interrupt oftentimes is a function of overall defense strategy being brought to bear upon issues which arise unexpectedly at trial and require split-second decision-making by counsel. Under some circumstances, trial counsel may forego objecting to an objectionable remark or seeking a cautionary instruction on a particular point because objections sometimes highlight the issue for the jury, and curative instructions always do.
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 146 (Pa. 2012) (case citations, internal quotation marks and other punctuation omitted).
In his first issue, Appellant asserts that trial counsel should have requested a " proper limiting instruction" for the testimony by Ms. Stanton repeating the statement made to her by Nashua Sanders. (Appellant's Brief, at 3). He contends that the statement was used as substantive evidence of his intent to commit murder and robbery. (See id.). We disagree.
Appellant argues that the contemporaneous instruction given sua sponte by the trial court was " equivocal" and trial counsel was ineffective for " failing to demand
a jury instruction that would have made it unequivocally clear that the statement of Nashua Sanders was not, under any circumstances, to be considered for the truth of its content." (Id. at 12; see also id. at 7-13). Appellant argues that " he was surely prejudiced." (Id. at 13). This issue is waived and would not merit relief.
Preliminarily, we are mindful that:
[W]hen evaluating the propriety of jury instructions, this Court will look to the instructions as a whole, and not simply isolated portions, to determine if the instructions were improper. We further note that, it is an unquestionable maxim of law in this Commonwealth that a trial court has broad discretion ...