Com. v. Real, F.

Opinion

J-S52016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

FERNANDO REAL,

Appellant No. 1495 EDA 2013

Appeal from the PCRA Order entered May 3, 2013, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0207721-2004

BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.: FILED AUGUST 27, 2014

pro se from the order denying his

sections 9541-46. We affirm.

We previously summarized the factual background as follows:

On September 11, 200[2], Appellant shot and killed

Frankford section of the City and County of Philadelphia, Pennsylvania. According to eyewitness testimony of R when the victim placed an insufficient bet. A verbal argument between Appellant and the victim ensued.

with two other men. Shortly after Appellant returned to where the game was being played, the victim walked away from the game. Mr. Milburn then heard gun shots [sic] and saw Appellant with a 9 mm gun in his hand, standing over the victim who had fallen to the curb. After the

*Former Justice specially assigned to the Superior Court. J-S52016-14

shooting, Appellant ran away. Mr. Milburn had seen Appellant with the same 9 mm gun about a week earlier in a local bar. According to Mr. Milburn, nearby police officers immediately responded to the gunshots and, without waiting for an ambulance, transported the victim to the hospital. [The victim later died.]

Commonwealth v. Real, 972 A.2d 560 (Pa. Super. 2009), unpublished

memorandum at 1-2 (citations omitted).

A jury convicted Appellant of first-degree murder and possession of an

instrument of crime. Thereafter, the trial court sentenced Appellant to a

term of life in prison for his murder conviction, and a concurrent sentence of

two and one-half to five years in prison for possessing an instrument of

crime. Appellant filed a direct appeal to this Court. In an unpublished

sentence. Real, supra. On October 7, 2009, our Supreme Court denied

Commonwealth v. Real, 982

A.2d 65 (Pa. 2009). On April 5, 2010, the United States Supreme Court

certiorari.

Meanwhile, on February 26, 2010, Appellant filed a pro se PCRA

petition. Although the PCRA court appointed counsel, and PCRA counsel filed

an amended petition, on July 16, 2012, Appellant filed a motion to proceed

pro se, and an amended petition in which he raised several claims of

ineffective assistance of counsel. On September 13, 2012, the PCRA court

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conducted a Grazier1 hearing, and granted Appellant permission to proceed

pro se. The PCRA court then held several days of evidentiary hearings. By

PCRA petition. This timely appeal followed. The PCRA court did not require

Pa.R.A.P. 1925 compliance.

Appellant raises the following issues:

A. Whether the PCRA court erred when it held [Appellant]

prosecutor eliciting evidence of another crime previously ruled inadmissible the shooting at Officer Spence

under the Pennsylvania and United States Constitutions?

B. Whether the PCRA court erred when in denying [Appellant] relief when [his] right to effective assistance of

counsel was violated by the prosecutor displaying a photograph of [Appellant] to a witness, post formal charging without defense counsel being present?

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In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

____________________________________________

1 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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Johnson, 966 A.2d at 532. To be entitled

to relief under the PCRA, the petitioner must plead and prove by a

preponderance of the evidence that the conviction or sentence arose from

one or more of the errors enumerated in section 9543(a)(2) of the PCRA.

One such error involves the ineffectiveness of counsel.

To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by 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.

Id.

adequate, and counsel will only be deemed ineffective upon a sufficient

Id. This requires the petitioner to demonstrate

that: (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission. Id. at 533. A finding of

"prejudice" requires the petitioner to show "that there is a reasonable

proceeding would have been different." Id. In assessing a claim of

ineffectiveness, when it is clear that appellant has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel

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cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc),

appeal denied, 852 A.2d 311 (Pa. 2004).

Appellant first claims that trial counsel was ineffective for failing to

object and request a mistrial after Sergeant John Spence testified at trial

another occupant fired at the officer.

According to Appellant, the trial court previously ruled this evidence

cken[ed]

in the minds of the jury. Absent this error, the jury was free to believe

ad arguable merit, and

trial counsel did not provide a reasonable basis for his omission, the PCRA

court concluded that Appellant could not establish the requisite prejudice. In

ruling on the record, the PCRA court stated:

[T]his Court cannot find that there was a reasonable probability that the outcome of the trial would have been different had this evidence been excluded due to the overwhelming evidence of guilt in this case and the general cautionary instruction given to the jury regarding bad acts.

***

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This Court reviewed the jury instructions. In their totality, the instructions informed the jury of the limited purpose for which evidence of flight could be used, as well as any other evidence of bad acts by [Appellant].

N.T., 5/3/13, at 12-13.

because Appellant could not establish prejudice, his ineffectiveness claim

fails. Travaglia, supra. Earlier in the hearing, the PCRA court summarized

the overwhelming evidence of Appel

read to the jury since he was found to be unavailable to testify by the Trial Court.

described the circumstances surrounding the shooting. It was an improperly placed bet at a dice game. He described the gun used in the shooting as a 9 millimeter. Ballistics confirmed this. The victim was shot from behind. He testified that the victim was shot from behind. The medical examiner confirmed this. [Mr. Milburn] said that [Appellant] stood over the victim after he was down and fired more shots at him. Ballistics confirmed this. There

Milburn] testified that numerous shots were fired. The murder weapon was recovered empty and the victim was shot 12 times.

Marquise Nixon gave a statement to police. He recanted at trial, however, under the law, his prior inconsistent, signed statement to police must be considered by a reviewing Court in the same manner as any other type of validly admitted substantive evidence when determining if sufficient evidence exists to sustain a criminal conviction.

game. He heard shots, [Appellant] as the shooter and he stated that he saw [Appellant] run toward Harrison Street. Police Officer

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photo out of an array[.]

Brian Perry also gave a statement to police. He was an eyewitness. He recanted at trial, but since it was a signed statement to police, which he adopted, that must be considered as substantive evidence, as well.

He stated that he was at a craps game, that he heard approximately seven shots coming from the area where he last saw [Appellant] behind him, that [Appellant] was wearing a white T-shirt and blue jeans, tall, real light, looks Puerto Rican, approximately 5, 11.

Police Officer Vincent - - I am going to purposely leave out her in- most likely should not have been permitted. She sees a light-skinned black male, 5,9 to 5,11, skinny, from 20 to 30 feet away in well-lit conditions. This male looks in her direction, stands flush against the wall, then runs toward Harrison Street.

Police Officer Vincent testified that she found the gun on the path along which she chased this person. That gun was later determined to be the murder weapon.

Other evidence presented in the case was that

attempted to reclaim it. Also [Appellant] could not be found for over one year. [Appellant] was finally found in a motel room in New Jersey with a loaded weapon which was a 9 millimeter and he gave a false name.

and there is no claim regarding the statements as a part of the PCRA. So the statements are substantive evidence that was legally admitted during the trial. The statements being I like shooting people and I already got two bodies.

N.T., 5/3/13, at 4-7.

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that the jury was adequately instructed as to the limited use of the evidence

in question. See N.T., 6/27/05, at 199-201. It is well settled that juries are

Commonwealth v.

Speight, 854 A.2d 450, 458 (Pa. 2004); see also Commonwealth v.

John, 596 A.2d

instructions may suffice to eradicate any prejudice that might result from

In his next issue, Appellant claims that the PCRA court erred in

on appeal his claim that his constitutional right to counsel was violated.

Prior to addressing this claim, the PCRA explained the circumstances

Now, by way of factual background, Police Officer Vincent arrived on the scene of the homicide. She saw a male run in her direction, then look in her direction and place his body flat against the wall. The male then ran off toward Harrison Street. Police Officer Vincent gave chase. She lost the male but recovered a gun on the path along which she chased the male which was later determined to be the murder weapon.

Police Officer Vincent gave a statement to homicide detectives wherein she described the male as a light- skinned black male, 5,9 to 5,11, skinny. Police Officer

[Appellant] that evening.

Approximately six weeks after the homicide, a wanted poster of [Appellant] was placed in the 15th Police District.

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Police Officer Vincent testified that she saw the poster and recognized it to be the person she chased on the night of the homicide. She failed to disclose this information to homicide detectives or to the Assistant District Attorney until pretrial preparation which was a few days before the trial.

When Police Officer Vincent told the Assistant District Attorney, which was close to three years after [Appellant] had been arrested and the wanted poster had been taken down, Police Officer Vincent, unbeknownst to the Defense Attorney beforehand, identified [Appellant] in court. The

colloquied Police Officer Vincent regarding the basis for her in-court identification.

Police Officer Vincent testified to seeing the wanted poster near the time of the homicide but also testified that she was shown the poster again by the Assistant District Attorney during the trial prep.

N.T., 5/3/13, at 15-17.

the first two prongs of the tripartite test applied to an ineffectiveness claim,

the PCRA denied relief based upon its conclusion that Appellant could not

establish the requisite prejudice:

[Even if the trial court had] afforded relief to the Defense in the form of a complete suppression of any identification by Police Officer Vincent, that still would not likely have changed the outcome of this case.

description. The direction in which he ran was consistent with the direction in which other witnesses say he ran and there were three other identification witnesses - - and this is the most important fact - - there were three other identification witnesses aside from Police Officer Vincent, witnesses who knew [Appellant]. Also, Police Officer Vincent was fully cross-examined and her credibility

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notice of her ability to make an identification in the case.

Id. at 21-22.

g that he was

prejudiced by any violation of his right to counsel. See, e.g.,

Commonwealth v. Spencer, 275 A.2d 299, 332 (Pa. 1971) (refusing to

improperly denied during pretrial identification, when the error was harmless

that prejudice is presumed is inapt. See

In sum, because the PCRA court correctly concluded that Appellant

order denying post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/27/2014

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