J-S60018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES E. STYLES

                            Appellant                No. 3474 EDA 2015


                Appeal from the PCRA Order November 13, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014913-2009


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                            FILED JANUARY 03, 2017

        James E. Styles appeals from the order entered November 13, 2015,

in the Philadelphia County Court of Common Pleas, dismissing his first

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1       Styles seeks relief from a term of five to ten years’

imprisonment, and a consecutive, aggregate term of five years’ probation,

for numerous violations under the Uniform Firearms Act (“VUFA”). 2          On

appeal, Styles contends trial counsel was ineffective for failing to pursue a


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    See 42 Pa.C.S. §§ 9541-9546.
2
    See 18 Pa.C.S. § 6101 et seq.
J-S60018-16


duress defense and corresponding instruction.      For the reasons below, we

affirm.

      The PCRA court set forth the factual history as follows:

            At trial, the Commonwealth presented the testimony of
      Philadelphia Police Officer Javier Montanez. On October 2, 2009,
      at approximately 10:15 p.m., Officer Montanez was on patrol in
      the area of 29th and Flora Streets, in the city and county of
      Philadelphia, Pennsylvania. While driving southbound on 29 th
      Street, he observed a crowd of approximately twenty-five (25)
      people on the corner of 29th and Flora Street[s], standing outside
      a bar called “Sarah’s Place.”

            Officer Montanez saw [Styles] standing “at the lower step
      of the bar,” pointing a silver handgun at a group of females
      about twenty (20) feet away.        Officer Montanez witnessed
      [Styles] fire the gun “toward the waistline and leg area of the
      females.” The officer testified that he heard the gunshot, and
      saw a “muzzle flash.”

             After the gunshot, Officer Montanez immediately parked
      and exited his patrol car with his gun drawn. By this time, a
      crowd of people were chaotically running toward him. Among
      this crowd was [Styles], who was “speed walking” in the officer’s
      direction as though “not acknowledging that [the officer] actually
      saw him discharge the firearm at the females.” Officer Montanez
      ordered [Styles] to the ground, “placed [his] knee … on
      [Styles’s] waistline,” reached into [Styles]’s right waistband, and
      recovered the gun. The firearm was loaded with six live rounds
      in its magazine and one round in the chamber.1 After placing
      [Styles] under arrest, Officer Montanez recovered a spent shell
      casing outside the bar, at the same location from which [Styles]
      fired the gun. Forensic evidence established that the gun had
      discharged this shell casing.2
      _____________________
          1
             The parties stipulated that the certified record, from the
          Pennsylvania State Police, states that [Styles] had no
          license to carry a firearm on October 2, 2009.
          2
            The Commonwealth presented the testimony of Gamilia
          Marshal, who is a Firearms Examiner for the Philadelphia

                                      -2-
J-S60018-16


       Police Department. [Styles] stipulated that Ms. Marshal is
       qualified as an expert in “firearms identification,” and she
       testified “to a reasonable degree of scientific certainty”
       that the shell casing was discharged from the gun
       recovered from [Styles].
     _____________________

           Officer Montanez further testified that the three females, at
     whom he saw [Styles] shoot, ran up to him and screamed:
     “[h]e just shot at me. He just shot at me.” These females were
     Precious Leverette, Shakea Johnston, and Thomika Thomas.

           Precious Leverette testified at trial.3 She claimed that she,
     her cousin (Thomika Thomas), and her friend (Shakea
     Johnston), together went to “Sarah’s Place” on October 2, 2009.
     At some point in the evening a fight broke out and the bar’s
     owner, “Ms. Sarah,” told everyone to leave … because there was
     too much complication in the bar.” While the three females
     made their way to the exit, [Styles] began “pushing [Ms.
     Thomas], telling her [to] move, bitch, hurry up bitch.” Upon
     hearing this, Ms. Leverette confronted [Styles], who “started
     pushing” her and calling her a bitch. When Ms. Leverette exited
     the bar, and after being pushed by [Styles] “about four times,”
     she “grabbed [Styles] and threw him towards a black truck.”
     _____________________
        3
          Ms. Leverette originally lied to the police, telling them
       her name was Precious “Taylor.” She claimed she had
       given this false name because she lives in the
       neighborhood where the incident occurred, and feared the
       consequences of cooperating with the police. She feared,
       in particular, being labeled a “snitch.”
     _____________________

           In response to being thrown against the truck, [Styles]
     pulled a gun from his waistband, pointed it towards Ms.
     Leverette’s feet, and fired. Ms. Leverette testified that the bullet
     missed her because Ms. Johnston had grabbed her from behind
     and pulled her away. After the gunshot, Ms. Leverette and her
     companions ran, “going zigzag” around cars because Ms.
     Leverette believed [Styles] would shoot again.

           Ms. Leverette’s testimony differs in some respects from
     that of Officer Montanez. Officer Montanez testified that [Styles]

                                    -3-
J-S60018-16


     and Ms. Leverette stood approximately twenty (20) feet apart
     when [Styles] shot the gun, but Ms. Leverette testified they were
     “face to face.”      Officer Montanez further testified that he
     recovered the gun from [Styles]’s right waistband while [Styles]
     was face-first on the ground, but Ms. Leverette testified that
     [Styles] had placed the gun on the ground in compliance with
     the officer’s orders. In other words, Ms. Leverette claimed that
     Officer Montanez did not recover the gun from [Styles]’s
     waistband.4
     _____________________
        4
            Furthermore, on cross-examination, Ms. Leverette
       testified she did not see Officer Montanez arrive until after
       the shot was fired. She also testified that she originally
       tried to flee the scene, but was stopped by the police.
     _____________________

           The defense presented the testimony of Ernestine Savage
     and Tujuana Burgess, both of whom claimed to have been at
     Sarah’s Place at the time of the shooting. Ms. Savage testified
     that an argument broke out between [Styles] and another
     female inside Sarah’s Place, which culminated outside the bar.
     Looking outside the bar’s front door, Ms. Savage saw “a lot of
     females surrounding [Styles] …[.] They were on his back, like
     they were jumping on him.” Ms. Savage heard a gunshot during
     the brawl, but she did not see [Styles] with a gun.5
     _____________________
        5
         On cross-examination, Ms. Savage testified that she had
       known [Styles] for approximately fifteen (15) years and
       that she is his “close friend.” However, prior to trial, Ms.
       Savage never informed the police or “anyone” else that
       she had seen [Styles], her “close friend,” being assaulted
       by a group of females just prior to his arrest.
     _____________________

            Ms. Burgess, an “acquaintance” of [Styles] who frequents
     Sarah’s Place, likewise testified that an argument broke out
     inside the bar, during which [Styles] asked a female patron “to
     leave his cousin’s establishment because he didn’t want no
     trouble in there.” Although Ms. Burgess heard [Styles] call the
     female a bitch, she never saw [Styles] push or punch this
     individual. Rather, when [Styles] stepped outside of the bar, Ms.


                                   -4-
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       Burgess saw him talking to an unidentified male and “trying to
       apologize for calling the girls a bitch.”

             According to Ms. Burgess, while [Styles] offered his
       apology, “[a] girl came up from behind and hit [him] in his
       head.” “[T]hen another girl came, and it was like a free for all, it
       was a fight.” While [Styles] was under attack, still another
       “young lady,” who “wasn’t in the bar,” pulled out a silver gun.
       [Styles] “wrestled” this woman for the gun, and “the next thing
       [Ms. Burgess] knew … the gun went off.”6
       _____________________
          6
             Ms. Burgess testified in part: “[Styles] thought quick.
          We all could have been dead out there. One of us could
          have been killed. I’m glad he got the gun from her. I
          really am. Similar to Ms. Savage, Ms. Burgess never
          bothered to inform the police that [Styles] had disarmed a
          dangerous individual, and that they arrested the wrong
          person.

PCRA Court Opinion, 8/11/2014, at 2-6 (record citations omitted) (emphasis

in original).

       Styles was charged with three counts of aggravated assault3 and

recklessly endangering another person (REAP),4 and three violations of

VUFA.5     The jury acquitted Styles of aggravated assault and REAP, but

convicted him of two of the VUFA charges (carrying without a license and

carrying on a public street in Philadelphia). Following the jury trial, the trial

____________________________________________


3
    18 Pa.C.S. § 2702.
4
    18 Pa.C.S. § 2705.
5
   18 Pa.C.S. §§ 6105, (persons not to possess firearms), 6106 (firearms not
to be carried without a license), and 6108 (carrying firearms on public
streets or property in Philadelphia).



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court held a bench trial, and convicted Styles of persons not to possess

firearms. The trial court sentenced Styles to an aggregate term of five to

ten years’ incarceration, followed by a term of five years’ probation.6      A

panel of this Court affirmed the judgment of sentence on direct appeal.

Commonwealth v. Styles, 38 A.3d 908 [2878 EDA 2010] (Pa. Super.

2011) (unpublished memorandum).7

       On March 2, 2012, Styles filed, pro se, a timely first PCRA petition.

The PCRA court appointed counsel, who filed amended and supplemental

petitions on August 29, 2012, and November 5, 2012, respectively.           The

PCRA court held hearings on December 13, 2013, and March 6, 2014. The

court formally dismissed Styles’s petition on March 24, 2014.

       Styles appealed and argued the PCRA court erred in denying a new

trial based on after-discovered evidence and ineffective assistance of counsel

for not presenting a duress defense. The panel affirmed in part and vacated

in part.   Commonwealth v. Styles, 122 A.3d 453 [876 EDA 2014] (Pa.

Super.     2014)    (unpublished      memorandum).    With   respect   to   the

____________________________________________


6
  Specifically, Styles was sentenced to five to ten years’ incarceration on the
charge of persons not to possess firearms, three years’ probation on the
charge of firearms not to be carried without a license, and two years’
probation on the charge of carrying firearms on public streets in
Philadelphia. His terms of probation were to run consecutive to each other,
and consecutive to his term of imprisonment.
7
  Styles did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court.



                                           -6-
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ineffectiveness issue, which is pertinent to this appeal, Styles claimed trial

counsel should have argued to the jury and requested an instruction on

duress because he maintained he was forced to take the handgun from

Leverette so that she did not shoot anyone else.            Id. (unpublished

memorandum at 8-9). The panel determined Styles’s claim was sufficient to

overcome the arguable merit prong of the ineffective assistance of counsel

test. Specifically, the panel stated:

             We agree with [Styles] that his claim has arguable merit.6
      At trial, Savage testified that some females began fighting inside
      the bar, that [Styles] asked them to leave, and that five to six
      females “jump[ed],” punched, and kicked [Styles] in the street.
      Burgess testified that [Styles] asked a woman who caused a
      “commotion” inside the bar to leave.         She said that when
      [Styles] was outside, a woman punched him in the back of his
      head. A fight broke out, and Burgess saw a woman pull a gun,
      [Styles] and the woman “tussl[ed],” and the gun went off.
      [Styles]’s evidence—if believed—shows he was accosted by an
      armed Leverette, and took the firearm in a struggle to prevent
      her from shooting him or anyone else. Based on that evidence,
      trial counsel could have argued that Leverette, armed with a
      handgun, threatened [Styles]; [Styles] reasonably feared for his
      safety; and Leverette’s threat was of such a nature that a person
      of reasonable firmness in the defendant’s situation would have
      been unable to resist it. That is, trial counsel could have argued
      that [Styles] possessed the firearm under duress, and requested
      jury instruction on duress.
      _____________________
         6
             We reject, however, the conclusions [Styles] reaches
         from the jury’s acquittal of aggravated assault and REAP.
         [Styles] attempts to argue that the jury’s partial acquittal
         shows it found Officer Montanez’s and Precious Leverette’s
         testimony not credible, and that [Styles] did not
         deliberately fire the weapon into a crowd. [Styles]’s Brief
         at 22, 27. Contrary to [Styles]’s argument, “[a partial]
         acquittal cannot be interpreted as a specific finding in


                                        -7-
J-S60018-16


       relation to some of the evidence.” Commonwealth v.
       Carter, 282 A.2d 375, 376 (Pa. 1971).
     _____________________

            To reject [Styles]’s claim, the PCRA court improperly
     weighed the evidence. The PCRA court posited that [Styles]
     could have taken the gun from Leverette, or thrown it onto a
     rooftop instead of firing the weapon. Whether [Styles] could
     have taken another course of action relevant to duress is for the
     fact-finder to resolve. The Commonwealth points to evidence
     that [Styles] possessed the firearm prior to discharging toward a
     crowd of people. However, the record also contains evidence
     that [Styles] wrestled away the firearm from Leverette.
     Although it is possible to disbelieve the evidence supporting
     duress, determination of the credibility and weight of the
     evidence are for the jury to decide. Where the defendant puts
     forward evidence to support a duress defense, a trial court
     cannot refuse to instruct the jury based on its determination that
     the evidence is not credible. See Markman, 916 A.2d at 607-
     08 (concluding trial court erred in refusing instruction on duress
     where defendant testified that her codefendant battered her and
     threatened her with a knife if she did not participate in
     kidnapping and murder).

            Additionally, the record contains conflicting evidence as to
     whether [Styles] recklessly placed himself into a situation where
     he would probably be under duress.            The Commonwealth’s
     witnesses testified that [Styles] initiated the confrontation, while
     [Styles]’s witnesses testified that a woman and her companions
     did so. The PCRA court accepted as true evidence that [Styles]
     was the initial aggressor. See PCRA Court Opinion, 8/11/14, at
     10 (“Arguably, the defense of duress was not even available to
     [Styles] given his behavior in physically pushing and shoving Ms.
     Thompson and Ms. Leverette, and addressing each of them as
     ‘bitch’.”). “Notably, it is the trier of fact that must determine
     whether the defendant acted recklessly.” Markman, 916 A.2d
     at 608 (emphasis in original). Therefore, the trier of fact should
     have determined whether [Styles] was indeed the initial
     aggressor, or whether [Styles]’s witnesses credibly testified that
     the victims started the fight. See id. at 609 (concluding trial
     court erred in refusing duress instruction where record contained
     conflicting evidence on the issue of whether the defendant was
     reckless).


                                    -8-
J-S60018-16


Styles, 122 A.3d 453 [876 EDA 2014] (Pa. Super. 2014) (unpublished

memorandum at 13-15) (record citations omitted; emphasis in original).

      Nevertheless, the panel declined to reverse the PCRA court’s order

entirely because the court did not address whether trial counsel had a

reasonable basis for not pursuing a duress defense and whether there was

prejudice resulting from the omission. See id. (unpublished memorandum

at 16-17). Therefore, the panel remanded the matter, directing the PCRA

court to analyze whether Styles met these remaining prongs of the

ineffectiveness test.

      Following remand, the PCRA court held a second evidentiary hearing

on August 27, 2015, and counsel submitted briefs on the matter.           On

November 16, 2015, the PCRA court again dismissed Styles’s petition,

finding that neither of the two remaining prongs were met.       This appeal

followed.

      In his sole argument on appeal, Styles contends the PCRA court erred

in finding trial counsel was not ineffective for failing to present a duress

defense and seek a corresponding jury instruction. See Styles’s Brief at 15.

      Our review of an order dismissing a PCRA petition is well-established:

we must determine whether the PCRA court’s findings of fact are supported

by the record, and whether its legal conclusions are free from error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be


                                    -9-
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disturbed   unless   they   have   no   support   in   the   certified   record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).

     With respect to a claim of ineffective assistance of counsel, we are

guided by the following:

     It is well-settled that 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. Strickland v. Washington, 466 U.S. 668,
     687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This Court
     has described the Strickland standard as tripartite by dividing
     the performance element into two distinct components.
     Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
     (Pa. 1987). Accordingly, to prove trial counsel ineffective, the
     petitioner must demonstrate that: (1) the underlying legal issue
     has arguable merit; (2) counsel’s actions lacked an objective
     reasonable basis; and (3) the petitioner was prejudiced by
     counsel’s act or omission. Id. A claim of ineffectiveness will be
     denied if the petitioner’s evidence fails to satisfy any one of
     these prongs.

     Regarding the reasonable basis prong of the ineffectiveness test,
     we will conclude that counsel’s chosen strategy lacked a
     reasonable basis only if the petitioner proves that the alternative
     strategy not selected offered a potential for success substantially
     greater than the course actually pursued. Commonwealth v.
     Koehler, 614 Pa. 159, 36 A.3d 121, 132 (Pa. 2012). To
     establish the prejudice prong, the petitioner must demonstrate
     that there is a reasonable probability that the outcome of the
     proceedings would have been different but for counsel’s
     ineffectiveness. Id.

Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013), cert. denied, 135

S.Ct. 50 (U.S. 2014).

     Turning to the present matter, Styles states:




                                    - 10 -
J-S60018-16


             The theory of the defense was that Precious [Leverette]
       was lying; that the weapon Mr. Styles possessed when
       confronted by the police was hers; and that the weapon was
       taken away from her when she pointed it at Mr. Styles while he
       was also being attacked by several other women.

             Had counsel requested a charge on the duress defense, it
       is respectfully submitted the jury could have found that he was
       acting under both duress and self-defense. Indeed, that latter
       defense had been accepted by the jury as to the assault charges.
       The duress instruction and defense would have provided a
       complete defense to the weapons charges as well.

             Supporting this argument was defense testimony that the
       women outside were attacking him and attacking him with a gun
       so that he was forced to possess the weapon. The defense
       witness testified that Mr. Styles went outside to apologize for his
       use of the term “bitch” inside the bar and his potential rough
       treatment of one of Ms. [Leverette]’s companions. Despite
       presenting this olive branch, Mr. Styles was attacked by several
       women, and Ms. [Leverette] pulled out a handgun, which she
       had kept concealed. Styles was able to wrestle the gun away
       from her and in so doing, the gun fired.

Id. at 15-16.8

       Furthermore, with respect to the reasonableness prong of the

ineffectiveness test, Styles asserts the PCRA court erred in determining that

counsel’s actions were not unreasonable based on its conclusion that the

prior Styles panel’s “determination as to arguable merit constituted a novel

interpretation of the statute” and counsel could not have predicted “this

perceived change in the law.”          Id. at 17.   Relying on Commonwealth v.

____________________________________________


8
   In other words, Styles alleges counsel should have argued a duress
defense for the possession crimes and a defense of self-defense for the
aggravated assault and REAP offenses.



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DeMarco, 809 A.2d 256 (Pa. 2002), Styles contends that one need only

look to the plain meaning of the statute to see that the duress defense

applies in the present matter. He states that based on the facts of this case,

      a reasonable person would have believed that [Styles] could
      have been shot and/or killed if he did not take quick and drastic
      action. This factual scenario fits the definition of duress as
      explained in DeMarco and contrary to the finding of the lower
      Court, this was not a new interpretation which trial [c]ounsel
      was not unreasonable for failing to predict.

            Indeed at both hearings after [c]ounsel was confronted
      with the plain meaning of the statute, he admitted he could have
      used that defense because in taking the weapon used to attack
      Mr. Styles, this required him to break the law.

            He further conceded that there is nothing in the statute
      that requires that a person actually has to direct a second
      person under threat of some sort of harm to perform an illegal
      act.

Id. at 20 (emphasis in original).

      Additionally, with regard to the prejudice prong, Styles noted that in

convicting him of VUFA under Section 6105, the trial court did not find the

defense witnesses credible.     Id. at 21.   He states this is “problematic”

because if he “had been found not guilty of all charges, the [Section] 6105

case was going to be nol prossed” pursuant to a stipulation agreement

between the parties.     Id.   Styles requests this Court look to the jury’s

verdict and findings, rather than to the trial court’s finding with respect to

the prejudice prong.     Id. at 22.     He also points to the following to

demonstrate prejudice:    (1) Leverette made a statement at trial that she

had the gun during the altercation; (2) Officer Montanez’s testimony was

                                    - 12 -
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rejected and contradicted by the rest of the witnesses; and (3) the jury

acquitted Styles of aggravated assault and REAP. Id. at 22-23.

      “Duress is a defense to criminal culpability.”     Commonwealth v.

Markman, 916 A.2d 586, 606 (Pa. 2007). The duress defense is codified as

follows:

      (a) General rule.--It is a defense that the actor engaged in the
      conduct charged to constitute an offense because he was
      coerced to do so by the use of, or a threat to use, unlawful force
      against his person or the person of another, which a person of
      reasonable firmness in his situation would have been unable to
      resist.

      (b) Exception.--The defense provided by subsection (a) of this
      section is unavailable if the actor recklessly placed himself in a
      situation in which it was probable that he would be subjected to
      duress. The defense is also unavailable if he was negligent in
      placing himself in such a situation, whenever negligence suffices
      to establish culpability for the offense charged.

18 Pa.C.S. § 309.

      In DeMarco, which Styles relies on, the Pennsylvania Supreme Court

stated:

      As set forth by the General Assembly in Section 309, in order to
      establish the duress defense in this Commonwealth, there must
      be evidence that: (1) there was a use of, or threat to use,
      unlawful force against the defendant or another person; and (2)
      the use of, or threat to use, unlawful force was of such a nature
      that a person of reasonable firmness in the defendant’s situation
      would have been unable to resist it.

Demarco, 809 A.2d at 261-262.

      Here, the PCRA court found the following:

           At the PCRA hearing, counsel for [Styles] called trial
      counsel to the stand who testified in pertinent part as follows:

                                    - 13 -
J-S60018-16



         THE COURT:      So the question is, [trial counsel],
       knowing what you knew prior to trial --

          [Trial counsel]: Yes.

          THE COURT: -- knowing everything that you knew prior
       to trial, both in terms of the duress defense, the law that
       supports the duress defense, and the facts of this case,
       would you have used the duress defense?

         Did you consider using the duress defense? And if not,
       why not?

           [Trial counsel]: I did not consider using the duress
       defense prior to this proceeding [today] because I was
       under the belief that the duress defense worked in a
       different set of facts than the facts we had in this
       particular case.

          THE COURT: And could you be more specific about that
       belief?

          [Trial counsel]: My belief was that a duress defense
       could have been brought forth, if, in fact, a person was
       coerced into committing a crime against their own will.

          For example, a robbery. Someone says, I’m going to
       rob this store, you’re going to drive me and take me back,
       I don’t want to do it, well, if you don’t do it then I’m going
       to do such and such to you. Then that person is forced to
       commit a crime with someone else.

          I was under the belief [that] that’s what the duress
       defense would cover. There are other avenues for which
       you could get duress defense, but that’s what I thought.

          In the situation with this particular case, where [Styles]
       had taken the weapon from someone else, I didn’t see that
       as a duress defense because they didn’t force him to take
       the weapon in the matter of, we want you to break the
       law.

     (N.T. 08/27/15, at pp. 11-12).

                                   - 14 -
J-S60018-16



             Based on the above testimony, and following a
      comprehensive review of case law involving the defense of
      duress, this Court finds that trial counsel’s belief -- though
      perhaps inaccurate in light of the Superior Court’s recent
      memorandum opinion Commonwealth v. Styles, supra -- was
      nonetheless reasonable. This Court has combed the case law
      and has unearthed no prior decision remotely involving the facts
      and charges sub judice; rather, virtually every pertinent duress
      decision involves facts and/or allegations of another intentionally
      and directly ordering the defendant to commit a crime, under the
      threat of physical harm. See, e.g., Commonwealth v. Markman,
      916 A.2d 586 (Pa. 2007); Commonwealth v. DeMarco, 809 A.2d
      256 (Pa. 2002); Commonwealth v. Horton, 644 A.2d 181 (Pa.
      Super. 1994). While this Court does not disagree with the
      learned analysis contained in the Superior Court’s memorandum
      opinion, it also does not find that trial counsel was unreasonable
      in failing to predict it. For this reason alone, [Styles]’s claim
      fails. See Commonwealth v. Sneed, 899 A.2d at 1076.

            Nonetheless, turning to the prejudice prong, and as the
      Superior Court expressly observed above, this Court was the fact
      finder on the charge of persons not to possess firearms -- i.e.,
      the only offense for which [Styles] received a sentence of
      incarceration. In that regard, this Court did not find the defense
      witnesses, Ernestine Savage and Tujuana Burgess -- both of
      whom were friends of [Styles] -- to be credible. Rather, this
      Court believed the testimony of Officer Montanez and Ms.
      Leverette, and accordingly, found that [Styles] was indeed guilty
      of the offense of persons not to possess firearms. A jury
      instruction on duress would not have altered this Court’s
      credibility determination as fact finder.

PCRA Court Opinion, 11/30/2015, at 2-4 (italics in original).

      We agree with the PCRA court’s ultimate decision. We find the court’s

conclusion is tantamount to a determination that it would not have given the

duress defense jury charge if requested by trial counsel because, like




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counsel, it could not find any supporting case law.           Indeed, prior to the

previous Styles memorandum,9 no decision, not even tenuously, has

involved a similar set of facts as those before us. Rather, as the PCRA court

opines, the limited precedence has applied the duress defense to facts where

another individual intentionally and directly orders the defendant to commit

a crime, under the threat of physical harm.             See Commonwealth v.

Markman, 916 A.2d 586 (Pa. 2007) (defendant entitled to duress

instruction where evidence demonstrated defendant’s paramour repeatedly

beat her, placed a knife to her throat or side, and threatened to kill her if

she did not assist him in kidnapping and killing the victim); Commonwealth

v. DeMarco, 809 A.2d 256 (Pa. 2002) (defendant entitled to duress

instruction where the evidence established he suffered from borderline

mental retardation and was subject to unlawful force and threats by his own

roommate that caused him to perjure himself); Commonwealth v. Horton,

644   A.2d    181    (Pa.   Super.     1994)   (defendant   established   ineffective

assistance of counsel for failure to request adequate jury instruction on

duress defense where evidence demonstrated another perpetrator had

pointed his gun in appellant’s direction while issuing a command to take

money from the victim).            We note that even though Styles relies on

DeMarco for an elaboration on the duress statute, the facts in DeMarco are
____________________________________________


9
   We note that since the first Styles decision, there has been no case
applying the duress defense to a similar set of facts.



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not substantially similar to the facts. In DeMarco, there was an explicit and

direct threat made by another individual to the defendant whereas, in the

present matter, there was no explicit compulsion issued by another

individual, directing Styles to possess the gun.

       As such, we emphasize:

       Counsel cannot be faulted for failing to advance a novel legal
       theory which has never been accepted by the pertinent courts.
       See Commonwealth v. Todaro, 549 Pa. 545, 701 A.2d 1343,
       1346 (Pa. 1997) (“counsel’s stewardship must be judged under
       the existing law at the time of trial and counsel cannot be
       deemed ineffective for failing to predict future developments or
       changes in the law”).

Commonwealth v. Jones, 811 A.2d 994, 1005 (Pa. 2002).

       Accordingly, we find trial counsel’s strategy did not lack a reasonable

basis because Styles has failed to demonstrate that an “alternative strategy

not selected offered a potential for success substantially greater than the

course actually pursued.” Elliott, 80 A.3d at 427.10 Furthermore, because

one can reasonably conclude based on the court’s opinion that it would not

have given the charge, Styles has not demonstrated “there is a reasonable

probability that the outcome of the proceedings would have been different

but for counsel’s ineffectiveness.”        Id.     Therefore, we conclude Styles has

failed to prove the remaining prongs of the ineffective assistance of counsel
____________________________________________


10
    It also merits mention that trial counsel did present a defense of self-
defense, and one can reasonably infer that suggesting an alternate theory
could have had the effect of confusing the jury or detracting from the
credibility of the defense.



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test and the PCRA court did not err in dismissing his petition where trial

counsel cannot be considered ineffective for failing to pursue a duress

defense and corresponding instruction.

     Order affirmed.

     Judge Shogan joins the memorandum.

Judge Strassburger files a dissenting memorandum.


’Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2017




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