J-S33045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ERIC ARMS
Appellant No. 2958 EDA 2014
Appeal from the PCRA Order October 14, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006895-2008, MC-51-0015843-2008
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 12, 2015
Eric Arms appeals from the order of the Court of Common Pleas of
Philadelphia County dismissing his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we
affirm.
The PCRA court has set forth the relevant facts of this matter as
follows:
[Arms’] convictions arose out of an incident that occurred on March 20, 2008. On that date, Maurice Shaw drove into a gas station located at 57th and Walnut Streets with his cousin, Ronnel James. [Arms], who was at the gas station at the time, saw Shaw as Shaw walked up to him. Shaw told [Arms] not to go anywhere and then reached under his shirt. [Arms], who had problems with Shaw in the past and was aware that Shaw was known to do “things” like that thereby implying that Shaw was reaching into his shirt for a weapon, grabbed a knife from his car and fatally stabbed Shaw four times; twice in the back and twice in the chest. [Arms] thereafter surrendered to police. J-S33045-15
PCRA Court Opinion, 1/16/15, at 2.
On November 3, 2009, Arms was convicted of third-degree murder1
and possessing instruments of crime,2 following a bench trial before Judge
Carolyn E. Temin. On March 2, 2010, Judge Temin imposed an aggregate
sentence of eighteen to forty-five years’ incarceration. Arms then filed a
notice of appeal to this Court and on February 24, 2011, we issued a
memorandum and order affirming the judgment of sentence.
Commonwealth v. Arms, 24 A.3d 463 (Pa. Super. 2011) (unpublished
memorandum). The Pennsylvania Supreme Court denied allowance of
appeal on September 14, 2011. Commonwealth v. Arms, 29 A.3d 370
(Pa. 2011) (unpublished memorandum).
Arms filed a pro se PCRA petition on June 26, 2012. Counsel was
appointed and, on October 3, 2013, filed an amended petition. A hearing
was held on September 12, 2014, and on October 14, 2014, the PCRA court
entered an order dismissing the petition without an evidentiary hearing.
On October 14, 2014, Arms filed a timely notice of appeal to this
Court, in which he raises the following issue:
The PCRA court erred in determining that trial counsel was not ineffective for failing to buttress [Arms’] self-defense theory by presenting evidence of decedent’s arrests for violent crimes and for failing to present evidence of decedent’s violent character. ____________________________________________
1 18 Pa.C.S. § 2502(c). 2 18 Pa.C.S. § 907(a).
-2- J-S33045-15
Appellant’s Brief, at 8.
Our standard of review of an order dismissing a PCRA petition is as
[I]n reviewing the propriety of an order granting or denying PCRA relief, we are limited to determining whether the evidence of record supports the determination of the PCRA court, and whether the ruling is free of legal error. Great deference is granted to the findings of the post-conviction court, and these findings will not be disturbed unless they have no support in the certified record.
Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002).
Arms argues that his trial counsel failed to buttress his self-defense
theory by not presenting evidence of Shaw’s arrests for violent crimes and
for failing to present evidence of Shaw’s violent character. Arms claims that
had trial counsel presented more evidence of Shaw’s violent tendencies, he
could have proven that he was in reasonable fear of death or great bodily
harm, which could have led to a not guilty verdict. Therefore, Arms believes
his trial counsel was ineffective.
Arms’ self-defense claim relies on well-settled law that proscribes the
following conditions:
(1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing;
(2) The slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to kill in order to save himself therefrom;
(3) The slayer must not have violated any duty to retreat or avoid the danger.
-3- J-S33045-15
Commonwealth v. Simmons, 475 A.2d 1310, 1313 (Pa. 1984) (citations
omitted).
In a claim for ineffectiveness of counsel, the law presumes that trial
counsel was effective. Commonwealth v. Rios, 920 A.2d 790, 805 (Pa.
2007). “In order to obtain relief under the PCRA premised upon a claim that
counsel was ineffective, a petitioner must establish beyond a preponderance
of the evidence that counsel’s ineffectiveness so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” Payne, 794 A.2d at 905 (quotation marks omitted)
(citing 42 Pa.C.S.A. § 9543 (a)(2)(ii)).
In order to succeed on an ineffectiveness of counsel claim, “[a]ppellant
must demonstrate that: (1) the claim is of arguable merit; (2) counsel had
no reasonable strategic basis for his or her action or inaction; and (3)
counsel’s ineffectiveness prejudiced him.” Commonwealth v. Michaud, 70
A.3d 862, 867 (Pa. Super. 2013). “Counsel cannot be deemed ineffective
for failing to pursue a meritless claim.” Payne, 794 A.2d at 906. “An
assessment of this prong requires appellant to establish each Pierce prong
with respect to trial counsel’s performance; failure to establish any one of
the prongs concerning trial counsel will defeat the entire claim.”
Commonwealth v. Williams, 863 A.2d 505, 513 n.9 (Pa. 2004) (citations
Arms argues that counsel should have introduced Shaw’s criminal
record in order to prove Shaw’s violent character. Whether this claim has
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merit is predicated on whether Shaw’s criminal record was admissible. In
order for the deceased victim’s criminal record to be admissible, the
defendant must use it either:
(1) to corroborate his alleged knowledge of the victim’s quarrelsome and violent character to show that the defendant reasonably believed that his life was in danger; or (2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor.”
Commonwealth v. Amos, 284 A.2d 748, 751 (Pa. 1971). This Court has
held that, “where offered merely to prove the allegedly violent propensities
of the victim to show that the victim was in fact the aggressor, mere arrests,
without convictions, are inadmissible.” Commonwealth v. Ignatavich,
482 A.2d 1044, 1047 (Pa. Super. 1984) (quotation marks and citations
Here, while Shaw had been arrested for multiple violent crimes, he had
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J-S33045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ERIC ARMS
Appellant No. 2958 EDA 2014
Appeal from the PCRA Order October 14, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006895-2008, MC-51-0015843-2008
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 12, 2015
Eric Arms appeals from the order of the Court of Common Pleas of
Philadelphia County dismissing his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we
affirm.
The PCRA court has set forth the relevant facts of this matter as
follows:
[Arms’] convictions arose out of an incident that occurred on March 20, 2008. On that date, Maurice Shaw drove into a gas station located at 57th and Walnut Streets with his cousin, Ronnel James. [Arms], who was at the gas station at the time, saw Shaw as Shaw walked up to him. Shaw told [Arms] not to go anywhere and then reached under his shirt. [Arms], who had problems with Shaw in the past and was aware that Shaw was known to do “things” like that thereby implying that Shaw was reaching into his shirt for a weapon, grabbed a knife from his car and fatally stabbed Shaw four times; twice in the back and twice in the chest. [Arms] thereafter surrendered to police. J-S33045-15
PCRA Court Opinion, 1/16/15, at 2.
On November 3, 2009, Arms was convicted of third-degree murder1
and possessing instruments of crime,2 following a bench trial before Judge
Carolyn E. Temin. On March 2, 2010, Judge Temin imposed an aggregate
sentence of eighteen to forty-five years’ incarceration. Arms then filed a
notice of appeal to this Court and on February 24, 2011, we issued a
memorandum and order affirming the judgment of sentence.
Commonwealth v. Arms, 24 A.3d 463 (Pa. Super. 2011) (unpublished
memorandum). The Pennsylvania Supreme Court denied allowance of
appeal on September 14, 2011. Commonwealth v. Arms, 29 A.3d 370
(Pa. 2011) (unpublished memorandum).
Arms filed a pro se PCRA petition on June 26, 2012. Counsel was
appointed and, on October 3, 2013, filed an amended petition. A hearing
was held on September 12, 2014, and on October 14, 2014, the PCRA court
entered an order dismissing the petition without an evidentiary hearing.
On October 14, 2014, Arms filed a timely notice of appeal to this
Court, in which he raises the following issue:
The PCRA court erred in determining that trial counsel was not ineffective for failing to buttress [Arms’] self-defense theory by presenting evidence of decedent’s arrests for violent crimes and for failing to present evidence of decedent’s violent character. ____________________________________________
1 18 Pa.C.S. § 2502(c). 2 18 Pa.C.S. § 907(a).
-2- J-S33045-15
Appellant’s Brief, at 8.
Our standard of review of an order dismissing a PCRA petition is as
[I]n reviewing the propriety of an order granting or denying PCRA relief, we are limited to determining whether the evidence of record supports the determination of the PCRA court, and whether the ruling is free of legal error. Great deference is granted to the findings of the post-conviction court, and these findings will not be disturbed unless they have no support in the certified record.
Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002).
Arms argues that his trial counsel failed to buttress his self-defense
theory by not presenting evidence of Shaw’s arrests for violent crimes and
for failing to present evidence of Shaw’s violent character. Arms claims that
had trial counsel presented more evidence of Shaw’s violent tendencies, he
could have proven that he was in reasonable fear of death or great bodily
harm, which could have led to a not guilty verdict. Therefore, Arms believes
his trial counsel was ineffective.
Arms’ self-defense claim relies on well-settled law that proscribes the
following conditions:
(1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing;
(2) The slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to kill in order to save himself therefrom;
(3) The slayer must not have violated any duty to retreat or avoid the danger.
-3- J-S33045-15
Commonwealth v. Simmons, 475 A.2d 1310, 1313 (Pa. 1984) (citations
omitted).
In a claim for ineffectiveness of counsel, the law presumes that trial
counsel was effective. Commonwealth v. Rios, 920 A.2d 790, 805 (Pa.
2007). “In order to obtain relief under the PCRA premised upon a claim that
counsel was ineffective, a petitioner must establish beyond a preponderance
of the evidence that counsel’s ineffectiveness so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” Payne, 794 A.2d at 905 (quotation marks omitted)
(citing 42 Pa.C.S.A. § 9543 (a)(2)(ii)).
In order to succeed on an ineffectiveness of counsel claim, “[a]ppellant
must demonstrate that: (1) the claim is of arguable merit; (2) counsel had
no reasonable strategic basis for his or her action or inaction; and (3)
counsel’s ineffectiveness prejudiced him.” Commonwealth v. Michaud, 70
A.3d 862, 867 (Pa. Super. 2013). “Counsel cannot be deemed ineffective
for failing to pursue a meritless claim.” Payne, 794 A.2d at 906. “An
assessment of this prong requires appellant to establish each Pierce prong
with respect to trial counsel’s performance; failure to establish any one of
the prongs concerning trial counsel will defeat the entire claim.”
Commonwealth v. Williams, 863 A.2d 505, 513 n.9 (Pa. 2004) (citations
Arms argues that counsel should have introduced Shaw’s criminal
record in order to prove Shaw’s violent character. Whether this claim has
-4- J-S33045-15
merit is predicated on whether Shaw’s criminal record was admissible. In
order for the deceased victim’s criminal record to be admissible, the
defendant must use it either:
(1) to corroborate his alleged knowledge of the victim’s quarrelsome and violent character to show that the defendant reasonably believed that his life was in danger; or (2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor.”
Commonwealth v. Amos, 284 A.2d 748, 751 (Pa. 1971). This Court has
held that, “where offered merely to prove the allegedly violent propensities
of the victim to show that the victim was in fact the aggressor, mere arrests,
without convictions, are inadmissible.” Commonwealth v. Ignatavich,
482 A.2d 1044, 1047 (Pa. Super. 1984) (quotation marks and citations
Here, while Shaw had been arrested for multiple violent crimes, he had
only been convicted of the crimes of disorderly conduct and drug possession.
Only these two convictions, and not the full arrest record, would be
admissible under Ignatavich. However, since neither of these two
convictions demonstrate a violent propensity in Shaw, his criminal record
would be inadmissible. Accordingly, this claim is meritless.
Arms also argues that trial counsel should have called witnesses from
the neighborhood in order to testify to Shaw’s violent character to bolster
Arms’ self-defense claim. To prevail on a claim of ineffective assistance of
counsel for failing to call witnesses, Arms must show:
-5- J-S33045-15
(1) the existence and availability of the witness; (2) counsel’s awareness of, or duty to know of, the witness; (3) the willingness and ability of the witness to cooperate and appear on behalf of the defendant; and (4) the necessity of the proposed testimony in order to avoid prejudice.
Commonwealth v. Pierce, 786 A.2d 203, 214 (Pa. 2001). Here, Arms has
failed to produce a single witness who could testify to Shaw’s purported
violent tendencies. Without proving the existence and availability of the
witness, Arms’ claim lacks merit.
Regarding trial counsel’s alleged failure to call Arms to testify to
Shaw’s violent character, we will “conclude that counsel's chosen strategy
lacked a reasonable basis only if Appellant proves that an alternative not
chosen offered a potential for success substantially greater than the course
actually pursued." Commonwealth v. Davido, 106 A.3d 611, 621 (Pa.
2014) (quotation marks and citations omitted).
Here, trial counsel testified that he believed that if Arms testified, the
district attorney, on cross-examination, would have made Arms look like a
very aggressive person. N.T. PCRA Hearing, 9/12/14, at 26-27. This was a
reasonable basis for trial counsel to decide not to have Arms testify, as
evidenced by the fact that Arms punched trial counsel in the head after the
verdict. N.T. Trial, 11/3/09, at 136. Accordingly, trial counsel had
reasonable basis not to have Arms testify and Arms’ argument fails here as
well.
Moreover, trial counsel’s failure to introduce certain character evidence
about Shaw, did not prejudice Arms. To establish prejudice, Arms must
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show that “there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel’s action or inaction.
Davido, 106 A.3d at 621 (citations omitted).
Here, trial counsel presented evidence that Shaw was a violent person.
Counsel introduced evidence, through Detective Mangold, that Arms and
Shaw “had problems in the past.” N.T. Trial, 11/3/09, at 104. Counsel also
introduced evidence that Shaw had a reputation for carrying a weapon. Id.
at 95, 106, 108. Finally, counsel presented evidence that Shaw had shot at
Arms the night before the stabbing. Id. at 110. The trial court heard
considerable evidence regarding Shaw’s violent character and therefore,
Arms was not prejudiced by his trial counsel’s failure to introduce certain
character evidence about Shaw’s violent nature.
Arms has failed to establish that counsel’s ineffectiveness so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place. Payne, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/12/2015
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