J-S55019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

KEVIN SOUFFRANT

                            Appellant                 No. 217 MDA 2017


                  Appeal from the PCRA Order January 10, 2017
                in the Court of Common Pleas of Lancaster County
    Criminal Division at No(s): CP-36-CR-0002313-2013, CP-36-CR-0002314-
                                      2013


BEFORE: DUBOW, RANSOM, and STRASSBURGER, JJ.*

MEMORANDUM BY RANSOM, J.:                       FILED SEPTEMBER 15, 2017

        Appellant, Kevin Souffrant, appeals from the order entered January 10,

2017, denying his petition for collateral relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        A prior panel of this Court summarized the facts of this matter as

follows:

        On March 9, 2013, officers from the Lancaster City Bureau of
        Police responded to a report of shots fired at 1117 Wabank
        Street, apartment C-304, in Lancaster County, Pennsylvania.
        Upon arrival, officers located inside the apartment a deceased
        female, Shadae Brooks, who had suffered multiple gunshot
        wounds, and additionally found Appellant in the vestibule outside
        of the apartment, also suffering from multiple gunshot wounds.
        Their investigation led police officers to interview Leonda
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Washington and Shaina Taylor-Brooks, who informed police that
       they had been inside the apartment prior to the shooting, and
       saw Appellant strike the victim on the head with a small silver
       handgun, and threaten to kill everyone in the apartment,
       including three children under age five. Ms. Washington and Ms.
       Taylor-Brooks were able to leave the apartment with two of the
       children while Appellant was beating the victim, and when the
       victim attempted to give Ms. Washington and Ms. Taylor-Brooks
       the third child to take with them, Appellant physically restrained
       her from doing so, and pointed the gun at Ms. Washington and
       Ms. Taylor-Brooks. Ms. Washington and Ms. Taylor-Brooks were
       able to leave with two of the children while the victim remained
       in the apartment with Appellant and her infant child. Appellant
       instructed Ms. Washington and Ms. Taylor-Brooks that if he
       heard police sirens he would shoot the victim, and the two
       women thus opted not to report the incident to police. However,
       at approximately 4:38 p.m. that afternoon, Officer Mark Gehron
       received a report from an unidentified source of shots fired at
       Apartment C-304, and upon arrival found Appellant and the
       deceased victim.       Appellant was transported to Lancaster
       General Hospital for treatment of his gunshot injuries, where he
       was interviewed by police and informed them that two men had
       entered his apartment and shot him and the decedent.
       Following further investigation, Appellant was arrested and
       charged with the aforementioned crimes.

See Commonwealth v. Souffrant, 125 A.3d 459, *1-3 (Pa. Super. 2015)

(unpublished memorandum) (internal citations to the record omitted).

       Following a trial during which the jury heard a tape of Appellant

threatening to kill the victim and witnesses, Appellant was convicted of first-

degree murder, aggravated assault, two counts of simple assault, terroristic

threats, and endangering the welfare of a child.1 On July 3, 2014, Appellant

received a mandatory sentence of life imprisonment for first-degree murder
____________________________________________


1
  See 18 Pa.C.S. §§ 2502(a), 2702(a)(1), 2701(a)(3), 2706(a)(1), and
4304(a)(1), respectively.



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and aggregate consecutive sentences of eleven to twenty-two years of

incarceration on the remaining charges.      Appellant’s judgment of sentence

was affirmed on appeal. Souffrant, 125 A.3d at 459. He did not petition

the Pennsylvania Supreme Court for allowance of appeal.

      In March 2016, Appellant pro se timely filed a petition seeking post-

conviction relief. Counsel was appointed and filed an amended petition on

Appellant’s behalf, arguing that trial counsel was ineffective for failing to

argue for a manslaughter verdict. See PCRA Petition, 7/1/16, at ¶¶ 44-51.

The court convened a hearing at which trial counsel, Douglas Conrad,

testified.

      Mr. Conrad testified that his theory of the case, based upon 1)

Appellant’s statements to police; 2) police acknowledgment there were no

cameras from the courtyard in the back stairwell; and 3) the back door latch

did not close all of the time, was that other individuals had broken into the

apartment and committed the crime.          See Notes of Testimony (N.T.),

9/23/16, at 9-10.

      Mr. Conrad discussed potential theories of the case with Appellant

prior to trial, and Appellant agreed it was not in his best interests to testify,

due to the potential admission of prior bad acts evidence and prior

convictions.   Id. at 23-24.   This evidence included 1) Appellant throwing

urine on the victim; 2) Appellant pulling the victim out of a car; 3) Appellant

punching the victim in the mouth and hitting her with a door; and 4) several


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New York convictions. Id. at 24-25. Additionally, had Mr. Conrad chosen to

present the “alternative” theory of heat of passion, he would have had to

inform the jury Appellant had lied to the police, and he was concerned that

this would negatively affect Appellant’s credibility. Id. at 25-26. Following

these discussions, Mr. Conrad picked the theory he felt had the best chance

of success. Id. at 39.

       Following the hearing, the PCRA court denied Appellant’s petition.

Appellant timely appealed. The PCRA court did not issue an order pursuant

to Pa.R.A.P. 1925(b) but instead relied upon its opinion denying Appellant’s

petition.

      On appeal, Appellant raises a single issue for our review:

      Did the lower court err by failing to find trial counsel ineffective
      for choosing a trial strategy that had virtually no chance of
      producing a verdict other than first-degree murder where an
      alternative strategy was available that would likely have
      produced a different verdict?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.    Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).


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     Appellant contends that counsel provided ineffective assistance for his

failure to argue that Appellant had committed the killing while acting under

the heat of passion.   See Appellant’s Brief at 9.   Essentially, he contends

that 1) trial counsel chose a strategy that had virtually no chance of

resulting in an outcome other than first-degree murder, and 2) an

alternative strategy was available that would have resulted in a more

favorable outcome. Id. Appellant claims trial counsel should have argued

that this was a domestic incident that “turned extremely violent” when the

decedent attempted to kill Appellant by shooting him three times, and that

counsel should have advanced this argument despite Appellant’s lack of

testimony. Id. at 10-11.

     We presume counsel is effective.     Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) that counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.


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Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      Initially, we note that a person is guilty of voluntary manslaughter if at

the time of the killing he acted under a sudden and intense passion resulting

from serious provocation by the victim. See Commonwealth v. Browdie,

671 A.2d 668, 671 (Pa. 1996); see also 18 Pa.C.S. § 2503(a).           “Heat of

passion” includes emotions such as anger, rage, sudden resentment or

terror, rendering the mind incapable of reason.      Id.   A defendant is not

entitled to a voluntary manslaughter charge where the evidence does not

support it. Id.

      Here, Appellant’s claim fails on both the prejudice and the reasonable

basis theories. First, Appellant’s claim that a manslaughter defense would

have altered the result of the trial cannot succeed. Although he argues that

the evidence showed that Ms. Brooks shot Appellant three times before he

killed her, Appellant does not address the evidence contradicting his

manslaughter theory, namely 1) numerous areas of bruising, bite marks,

and trauma on Ms. Brooks’ body, and 2) a recording of Appellant’s threats to

kill Ms. Brooks made prior to the attack and murder.         As this testimony

would have directly contradicted Appellant’s original statements to the police

and the jury may not have credited it, Appellant cannot claim that but for

counsel’s failure to advance the manslaughter theory, the outcome would


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have been different. See, e.g., Johnson, 966 A.2d at 533. Thus, his claim

fails. Springer, 961 A.2d at 1267.

      Further, counsel had an objective, reasonable basis for failing to

advance a manslaughter defense. We note, additionally, that with regard to

the reasonable basis prong,

      where matters of strategy and tactics are concerned, counsel’s
      assistance is deemed constitutionally effective if he chose a
      particular course that had some reasonable basis designed to
      effectuate his client’s interests.    Courts should not deem
      counsel’s strategy or tactic unreasonable unless it can be
      concluded that an alternative not chosen offered a potential for
      success substantially greater than the course actually pursued.
      Also as a general rule, a lawyer should not be held ineffective
      without first having an opportunity to address the accusation in
      some fashion . . . The ultimate focus of an ineffectiveness
      inquiry is always upon counsel, and not upon an alleged
      deficiency in the abstract.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (internal

citations and quotations omitted). Here, counsel’s strategy had a reasonable

basis designed to effectuate his client’s interests.      As the PCRA court

correctly noted, the trial strategy employed by Mr. Conrad was consistent

with the original statements Appellant made to police, and was supported by

testimony and facts introduced at trial. See PCO at 5-6. That the jury did

not, ultimately, believe this testimony is not a factor in the reasonable basis

analysis.   Here, the court credited Mr. Conrad’s testimony 1) that he

discussed with Appellant the possibility of Appellant testifying at trial, and

decided against it due to the risk of prior bad acts evidence; and 2) he

picked the strategy he felt had the best probability of success. Id. On the

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contrary, the strategy suggested by Appellant would have required counsel’s

acknowledgment    that    Appellant’s    original   statements   to   police   were

inconsistent with the arguments now proffered. See Appellant’s Brief at 11.

     Accordingly, Appellant cannot show that the alternative theory he

avers counsel should have pursued would have offered a potential for

success substantially greater than the course actually pursued.                See

Koehler, 36 A.3d at 132; Springer, 961 A.2d at 1267.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




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