Com. v. Bevans, J.

• Court: Superior Court of Pennsylvania
• Decided: August 2, 2021
• Docket: 1130 EDA 2020
• Status: Unpublished

Opinion

J-S18015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOEL BEVANS : : Appellant : No. 1130 EDA 2020

Appeal from the PCRA Order Entered March 13, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001789-2012

BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 2, 2021

Joel Bevans appeals pro se from the order denying his first petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We

affirm.

In the early morning hours of July 9, 2011, two Philadelphia Police

Officers, Christopher Culver and Joseph Rapone, observed a moving vehicle

with multiple violations of the Motor Vehicle Code. When the patrolling officers

activated their lights and sirens to stop the vehicle, it sped up and attempted

to leave the area. Bevans eventually exited the still moving vehicle from the

passenger side and fled on foot, with the officers in pursuit. At one point,

Bevans turned and pointed a gun at Officer Culver. In response, Officer Culver

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* Retired Senior Judge assigned to the Superior Court. J-S18015-21

shot at Bevans and the bullet struck his shoulder. Bevans was taken to the

hospital for a graze wound to his shoulder.

On October 11, 2012, a jury convicted Bevans of aggravated assault on

a protected class member, possessing an instrument of crime, and three

violations of the Uniform Firearms Act. On November 29, 2012, the trial court

sentenced Bevans to an aggregate term of incarceration of eighteen to thirty-

six years. This Court affirmed his judgment of sentence on June 25, 2014,

and our Supreme Court denied his petition for allowance of appeal on

November 18, 2014. Commonwealth v. Bevans, 926 EDA 2013 (Pa. Super.

filed June 25, 2014) (unpublished memorandum), appeal denied, 104 A.3d 1

(Pa. 2014).

Bevans filed this timely PCRA petition on July 17, 2015. The PCRA court

appointed counsel, who then filed a Finley1 no-merit letter and a petition to

withdraw. Thereafter, Bevans privately retained counsel, who filed two

amended PCRA petitions. The PCRA court held an evidentiary hearing only as

to a claim of after-discovered evidence. On March 13, 2020, the PCRA court

entered an order dismissing the PCRA petition. This timely appeal followed. 2

1 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988 (en banc).

2 On June 3, 2020, counsel filed with this Court a motion to withdraw, indicating that Bevans has not retained him for purposes of this appeal. This Court granted the motion to withdraw and directed the PCRA court to (Footnote Continued Next Page)

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Bevans presents multiple issues challenging the effective assistance of

trial counsel. Basically, Bevans asserts counsel was ineffective for failing to

request that jury instructions include various lesser-included offenses and

failing to object to numerous instances of evidence presented by the

Commonwealth.

Our standard of review for an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

See id.

Concerning ineffective assistance of counsel arguments, we presume

counsel is effective, and the appellant bears the burden to prove otherwise.

See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). The

appellant must demonstrate: (1) his underlying claim is of arguable merit; (2)

the particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and (3) but for counsel’s

ineffectiveness, there is a reasonable probability that the outcome of the

proceedings would have been different. See Commonwealth v. Solano,

determine Bevans’ eligibility for court-appointed counsel. See Order, 6/29/20. Pursuant to our order, the PCRA court held a hearing and determined Bevans is not eligible for court-appointed counsel.

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129 A.3d 1156, 1162-1163 (Pa. 2015). Failure to satisfy any prong of the

test for ineffectiveness will require rejection of the claim. See

Commonwealth v. Jones, 815 A.2d 598, 611 (Pa. 2002).

When it is clear that an appellant has failed to meet the prejudice prong

of an ineffective assistance of counsel claim, the claim may be disposed of on

that basis alone, without a determination of whether the first two prongs have

been met. See Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005). We are mindful that prejudice requires proof that there is a reasonable

probability that but-for counsel’s error, the outcome of the proceeding would

have been different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.

2001).

Bevans first argues that trial counsel was ineffective for failing to request

a jury instruction on the lesser-included offense of aggravated assault for

attempting to cause bodily injury to a police officer. He contends the

instruction should have been given as an alternative to the charge of

aggravated assault for attempting to cause serious bodily injury to a police

officer, the crime for which Bevans was convicted. We disagree.

There is no duty on a trial judge to charge a jury upon law which has no

applicability to the presented facts. See Commonwealth v. McClain, 587

A.2d 798, 803 (Pa. Super. 1991). “A defendant is entitled to ... an instruction

on a lesser included offense only where the evidence in the record would

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permit the jury to find, rationally, the defendant guilty of the lesser included

offense but not the greater offense.” Commonwealth v. Ferrari, 593 A.2d

846, 849 (Pa. Super. 1991) (emphasis in original). The mere possibility that

the jury may believe part but not all the Commonwealth’s evidence is not

sufficient to require the trial court to charge the jury on a lesser included

offense than that which the prosecution witness testifies has been committed.

See id. at 850.

We have reviewed the briefs of the parties, the relevant law, the certified

record and the PCRA court opinion authored by the Honorable Glenn B.

Bronson. We conclude that the PCRA court’s opinion accurately addresses

Bevans’ claim of ineffective assistance and properly determines that trial

counsel was not ineffective for failing to request the jury instruction. See

PCRA Court Opinion, 11/5/20, at 5-7. Specifically, we agree that the facts

presented establish that Bevans attempted to shoot a police officer and that

the gun malfunctioned in the process. This conduct demonstrates an intent

to cause serious bodily injury. Accordingly, we adopt the opinion of the PCRA

court as our own as to the determination of this issue of alleged trial counsel

ineffective assistance.

Similarly, in his second issue, Bevans argues that trial counsel was

ineffective for failing to request a jury instruction on the lesser-included

offense of simple assault. He again claims the requested instruction should

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have been given as an alternative to the charge for aggravated assault for

attempting to cause serious bodily injury to a police officer. This claim fails.

We discern two differences between the offense for which Bevans was

convicted of committing and the crime of simple assault. The differences are

the degree of bodily injury attempted by Bevans and whether the victim was

a member of a protected class.

As we noted in his first issue, the jury convicted Bevans of the crime

requiring proof of an attempt to cause serious bodily injury. The fact that

Bevans attempted to discharge a firearm while it was pointed at a police officer

supports this determination and negates the claim that a lesser included

offense charge for simple assault was appropriate. See Ferrari, 593 A.2d at

849-850. Moreover, it is undisputed that the intended victim was a police

officer, and therefore a member of a protected class under the statute. 3

Bevans would have been entitled to an instruction on simple assault only

if the evidence of record would permit the jury to find, rationally, that Bevans

was guilty of only the lesser included offense but not the greater offense. See

Ferrari. Here, the evidence supported the greater offense of aggravated

assault for attempting to cause serious bodily to a police officer. Therefore,

3 Pursuant to the Crimes Code, police officers, while in the performance of their duty, are among the members of the protected class. See 18 Pa.C.S.A. §§ 2702(a)(2) and (c)(1).

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Bevans was not entitled to an instruction on the offense of simple assault.

Accordingly, trial counsel was not ineffective for failing to request this jury

instruction and Bevans’ contrary claim lacks merit.

Bevans also argues that trial counsel was ineffective for falling to object

to various instances of character evidence presented by the Commonwealth.

Specifically, Appellant asserts trial counsel should have objected when the

Commonwealth presented evidence of Officer Culver’s clean shooting record,

Bevans’ presence in a high crime area, and the fact that both officers involved

in the incident had children.

Regarding Bevans’ claim that trial counsel was ineffective for failing to

object to testimony about the officer’s clean shooting record, we discern no

merit to the underlying claim. Our Supreme Court has stated, “[E]vidence of

a victim’s nature can be properly admitted to explain the victim’s actions and

support the Commonwealth’s theory of the case.” Commonwealth v.

Philistin, 53 A.3d 1, 13 (Pa. 2012) (citation omitted). Philistin involved the

shooting of two police officers by the defendant, and our Supreme Court held

that, in order to rebut a claim that the victims were rogue officers, the

Commonwealth properly presented evidence of their commendations, military

and police career, personnel records, and both officers' reputation for

professionalism. See id.

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Again, we have reviewed the briefs of the parties, the certified record,

the relevant law, and the opinion authored by the PCRA court. We conclude

that the PCRA court properly addressed Bevans’ claim of ineffectiveness and

correctly determined that the evidence that the victim had not previously fired

his service weapon was admissible to rebut Bevans’ allegation that the officer

randomly shot Bevans as he fled. See PCRA Court Opinion, 11/5/20, at 8-9.

Hence, an objection by defense counsel would have been overruled.

Accordingly, there is no merit to the underlying issue and this claim of

ineffective assistance fails.

In addition, Bevans claims that trial counsel offered ineffective

assistance for failing to object to the testimony that Bevans was in a high-

crime area. During direct examination, both officers testified that on the night

of the incident they were patrolling the area in question, which they described

as a high-crime area. See N.T., 10/10/12, at 68-69, 106-107. As the PCRA

court aptly states, “[A]t no time did either officer state, or even imply, that

[Bevans’] presence in that area implied that he possessed bad character.”

PCRA Court Opinion, 11/5/20, at 10. Indeed, our review of the record reflects

that the Commonwealth was not attempting to interject facts that were not

relevant to the case. Rather, the statements from the officers were offered

to explain their assignment to the location on the night of the incident. Hence,

there is no merit to the underlying issue presented in this claim.

Consequently, Bevans’ claim of ineffective assistance in this regard fails.

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Bevans also argues that trial counsel was ineffective for failing to object

to evidence that the officers were parents to young children. Bevans claims

that this evidence denied him of a fair trial because it created sympathy for

the officers with irrelevant evidence.

Having thoroughly reviewed this issue, we conclude that the underlying

issue lacks merit. As the PCRA court stated, “[W]hen the character of officers

is attacked in an effort to prove that they are rogue and committed

misconduct, and that [the] defendant is a blameless victim of police

misconduct, the Commonwealth may offer evidence of the officers’

background as fair reply to the attack.” PCRA Court Opinion, 11/5/20, at 10

(citing Philistin). The passing references to the officers’ family life was a fair

reference to rebut the characterization of the officers by Bevans.

Consequently, this claim is meritless, and trial counsel was not ineffective in

failing to raise it.

Last, Bevans argues that trial counsel was ineffective for failing to object

to the introduction of Officer Culver’s prior consistent statement during the

subsequent investigation of the crime. Bevans contends that the introduction

of Officer Culver’s statement was unfairly prejudicial.

Under Pa.R.E. 613(c), a prior consistent statement is received for

rehabilitation purposes and not as substantive evidence. The comment to

Rule 613 explains that the rule “is consistent with Pennsylvania law in that the

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prior consistent statement is admissible, but only to rehabilitate the witness.”

Pa.R.E. 613, Comment. This Court has long held that prior consistent

statements may be used only for the purpose of rehabilitating a witness’s

credibility to the extent that the witness’s testimony was challenged. See

Commonwealth v. Polston, 616 A.2d 669, 675 (Pa. Super. 1992). This

Court further held that a prior consistent statement that augments or

supplements a witness’s trial testimony is inadmissible. See id.

Assuming for the sake of argument that there is merit to the underlying

claim and that trial counsel lacked a reasonable basis for failing to object, we

conclude Bevans has failed to establish that he suffered prejudice. As the

PCRA court accurately observes, during the investigation of the incident,

“Officer Culver gave a statement to Lieutenant Steven Nolan.” PCRA Court

Opinion, 11/5/20, at 11. Our review substantiates that during the trial both

Officer Culver and Lieutenant Nolan testified that Officer Culver gave a

statement to the lieutenant. N.T., 10/10/12, at 57-59, 91-92.

Although the statement was moved into evidence, the transcript was

not read in court, and it was neither shown nor given to the jury. Accordingly,

the jury was never informed of the content of the statement. Hence, the jury

did not know whether Officer Culver’s statement was a prior consistent

statement or a prior inconsistent statement. Rather, the testimony offered by

the two men only informed the jury that during the investigation, Officer

Culver gave a statement. Bevans fails to establish that if the jury had not

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known that Officer Culver made a statement to an investigator, it would have

weighed the evidence presented by the Commonwealth differently.

Accordingly, Bevans has failed to establish prejudice and is not entitled to

relief on this claim that trial counsel provided ineffective assistance.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/2/2021

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