J-S80041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    BRIAN HOOK,                                :
                                               :
                      Appellant                :       No. 857 EDA 2017

                  Appeal from the PCRA Order February 17, 2017
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0013429-2009

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 27, 2018

        Brian Hook (“Hook”) appeals from the Order dismissing his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1        We

affirm.

        In its Opinion, the PCRA court set forth the factual and procedural

background of this case, which we adopt for the purpose of this appeal. See

PCRA Court Opinion, 5/26/17, at 1-5.

        On appeal, Hook raises the following issue for our review: “Whether

trial counsel was ineffective for not objecting to the trial court’s instructions

after jurors had informed the trial court they were ‘solidly’ deadlocked at 6-




____________________________________________


1   See 42 Pa.C.S.A. §§ 9541-9546.
J-S80041-17


6[,] and for       not   requesting     the    trial court   to   issue   a   Spencer[2]

instruction[?]”3 Brief for Appellant at 3 (capitalization omitted, footnote




____________________________________________


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

3
 A Spencer instruction is a non-coercive charge given to a deadlocked jury
which informs the jury of the following:

       (i) that in order to return a verdict, each juror must agree
       thereto; (ii) that jurors have a duty to consult with one another
       and to deliberate with a view to reaching an agreement, if it can
       be done without violence to individual judgment; (iii) that each
       juror must decide the case for himself, but only after an
       impartial consideration of the evidence with his fellow jurors; (iv)
       that in the course of deliberations, a juror should not hesitate to
       reexamine his own views and change his opinion if convinced it
       is erroneous; and (v) that no juror should surrender his honest
       conviction as to the weight or effect of the evidence solely
       because of the opinion of his fellow jurors, or for the mere
       purpose of returning a verdict.

Commonwealth v. Greer, 951 A.2d 346, 387 (Pa. 2008) (quoting
Spencer, 275 A.2d at 304 n.7).




                                           -2-
J-S80041-17


added).4

             We review an order dismissing a petition under the PCRA
       in the light most favorable to the prevailing party at the PCRA
       level. This review is limited to the findings of the PCRA court
       and the evidence of record. We will not disturb a PCRA court’s
       ruling if it is supported by evidence of record and is free of legal
       error. This Court may affirm a PCRA court’s decision on any
       grounds if the record supports it. Further, we grant great
       deference to the factual findings of the PCRA court and will not
       disturb those findings unless they have no support in the record.
       However, we afford no such deference to its legal conclusions.
       Where the petitioner raises questions of law, our standard of
       review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

       Hook contends that, on the afternoon of December 9, 2010, during his

criminal trial, the jury indicated to the trial court that it was deadlocked at 6-


____________________________________________


4 The Commonwealth contends that Hook waived the issue by failing to raise
it in his court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors
complained of on appeal. See Commonwealth’s Brief at 4; see also
Pa.R.A.P. 1925(b)(3)(vii) (providing that “issues not included in the
Statement … are waived.”). While Hook’s Spencer claim was framed in his
Concise Statement solely as trial court error, without any reference to trial
counsel’s ineffectiveness, Hook raised his ineffectiveness claim before the
PCRA court, and the PCRA court addressed it in its Pa.R.A.P. 1925(a)
Opinion.     Thus, we decline to find waiver on this basis.              See
Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) (declining
to find waiver, despite a vague concise statement, where the trial court filed
an opinion which meaningfully addressed the Commonwealth’s arguments);
see also Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007)
(stating that this Court can review an issue, despite a vague Rule 1925(b)
statement, where trial court readily apprehends appellant’s claim and
addresses it in substantial detail.).



                                           -3-
J-S80041-17


6.   Brief for Appellant at 8, 16.     Hook states that the trial court then

instructed the jury as follows:

      Well, what I am going to do at this time is to send you home to
      kind of think about what your fellow jurors have had to say[,]
      and to mull over the facts and circumstances[,] and have you
      come back at nine o’clock tomorrow morning[,] when you will
      resume deliberating. And[,] if after coming back and having
      slept on it[,] you’re still at 6-6 or not close to anything, let me
      know and I will give you an additional charge at that time.

Id. at 8-9, 16-17 (citing N.T., 12/9/10, at 140).      Hook indicates that the

trial court further instructed the jurors that “you will not be permitted to

resume your deliberations until [tomorrow, when] you have been specifically

instructed to do so by the [c]ourt ….” Brief for Appellant at 17 (citing N.T.,

12/9/10, at 142).     Hook further indicates that, after the jury had been

excused on the afternoon of December 9, 2010, the trial court stated to

defense counsel and the prosecutor, “I don’t know if counsel wants the

Spencer charge given. Decide both of you in the morning, if they are still

deadlocked.” Brief for Appellant at 9-10, 20 (quoting N.T., 12/9/10, at 142).

      Hook claims that the trial court’s instructions to the jury, “were

internally inconsistent[,] and it is reasonably likely the inconsistency

confused the jurors into thinking they were permitted to privately deliberate

about the case while at home on the night of December 9th.”             Brief for

Appellant at 18 (emphasis in original); see also id. at 10 (wherein Hook

claims that “[t]here is a reasonable likelihood that jurors interpreted the trial

court’s late[-]day instructions on December 9th to permit, if not require,


                                      -4-
J-S80041-17


them to continue their deliberations at home – without input from their

fellow jurors.”). Hook asserts that his counsel was ineffective for failing to

object to the instructions provided by the trial court, and for failing to

request a Spencer charge before the trial court dismissed the jurors for the

evening.   Id. at 9, 11, 19.     Hook also claims that his trial counsel was

ineffective for failing to request the trial court to instruct the jurors to take

an initial vote on the morning of December 10, 2010, to determine if they

were still deadlocked and, if so, to issue a Spencer charge at that time. Id.

at 10. According to Hook, the jury began deliberating at 9:00 a.m. on the

morning of December 10, 2010, and reached a unanimous verdict of guilty

by 11:39 a.m. Id. Hook argues that

      [i]t is reasonably likely that the combination of the trial court’s
      inappropriate “mull it over” instruction and trial counsel’s failure
      to request an instruction informing jurors not to surrender their
      honest convictions[,] played a substantial role in convincing the
      six “not guilty” jurors to flip their votes to guilty in such a short
      period of time on December 10th.

Id. (emphasis in original); see also id. at 22-23. Hook asserts that, had

his counsel objected to the trial court’s instruction and requested a Spencer

instruction before the jurors were excused on December 9, 2010, there is a

reasonable probability that the outcome of his trial would have been

different, “either resulting in an acquittal or mistrial based on the jury’s

inability to render a unanimous verdict.” Id. at 11-12, 23.

      To succeed on an ineffectiveness claim, appellant must demonstrate

by the preponderance of the evidence that

                                      -5-
J-S80041-17


      (1) [the] 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.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                 Counsel is

presumed to be effective and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

      In its Opinion, the PCRA court addressed Hook’s issue, set forth the

relevant law and concluded that the issue lacks merit because, inter alia, the

trial court had instructed the jury “using substantially the same language” as

included within a Spencer instruction. See PCRA Court Opinion, 5/26/17,

at 8-10.   Specifically, the trial court instructed the jury as follows prior to

dismissing them on the afternoon of December 9, 2010:

      Review the evidence impartially with the other jurors and do not
      hesitate to reexamine your own views and change your opinion if
      the others convince you that you made a mistake. But[,] each
      of you must finally decide the case for himself or herself. Try to
      come to a unanimous conclusion if you can do that honestly and
      with self-respect.

See id. at 9 (citing N.T., 12/9/10, at 122-23). On this basis, the PCRA court

determined that Hook’s counsel had no basis to object to the trial court’s

instructions, and was not ineffective for failing to do so. See id. at 9, 10.

As we discern no abuse of discretion or error of law, we affirm the PCRA

court’s ruling. See id.; see also Commonwealth v. Jones, 912 A.2d 268,

                                     -6-
J-S80041-17


278 (Pa. 2006) (holding that counsel cannot be found ineffective for failing

to challenge legally proper jury instructions).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




                                      -7-
0024_Opinion
                                                                                                                      Circulated 01/31/2018 03:30 PM




                                            PHILADELPHIA COURT OF COMMON PLEAS
                                                  CRIMINAL TRIAL DIVISION                                                                        FILED
                                                                                                                                            MAY 2 6 2017
               COMMONWEALTH                                                                                                            Office of Judicial Records
                                                                                          CP-51-CR-0013429-2009                         Appeals/Post Trial


                          v.

               BRIAN HOOK                                                                 Superior Court No.
                                                                                          857 EDA 2017
               Sarmina,J.

               May 26, 2017
                                                                       OPINION


               PROCEDURAL HISTORY:

                          On December 10, 2010, following a jury trial' before this Court, Brian Hook (hereafter,

               petitioner) was found guilty of murder of the first degree (H-1) and possessing instruments of crime

               (PIC)(Nf-1).2 On that same date, petitioner was sentenced to the mandatory term' of life

               imprisonment. 4 Petitioner filed post-sentence motions on December 14, 2010, and filed

               supplemental post-sentence motions on February 8, 2011 and February 10, 2011. This Court

               denied petitioner's post-sentence motions on April 13, 2011. Petitioner filed a timely notice of



                                                                                            CP-51-CR-0013429-2009 Comm.    v. Hook, Brian
                                                                                                            Opinion




               1
                   At trial, petitioner was represented by Harvey Yanks, Esquire.
                                                                                                               I
                                                                                                 ll I I IIIII7954038391
                                                                                                               I I II I IIIII II Ill

               2   18 Pa.CS.§§ 2502(a), and 907(a), respectively.

               ' 18 Pa.CS. § 1102(a).

               � .-\s to the charge of PIC, petitioner was sentenced to a concurrent term of not less than 1 year nor more than 2 years
               imprisonment. Notes of Testimony (N.T.) 12/10/10 at 17.

               5 On December 21, 2010, this Court granted petitioner's appellate counsel t"wenty days from the date that petitioner's
               trial transcript became available in which to file supplemental post-sentence motions. John Belli, Esquire, represented
               petitioner in post-sentence motions and on direct appeal.

                                                                              1
appeal on May 5, 2011. On January 9, 2012, Superior Court affirmed petitioner's judgment of

sentence, and, on July 9, 2012, our Supreme Court denied petitioner's allowance of appeal."

              On May 28, 2013, petitioner filed a timely prose Post-Conviction Relief Act (PCRA)7

petition, and submitted a pro se "Amended PClv\ Petition with Memorandum of Law" on

September 30, 2013. Counsel was appointed," entering his appearance on February 20, 2014. On

April 12, 2016, petitioner requested to proceed pro se" On July 25, 2016, following a Grazier!"

hearing before this Court, petitioner was permitted to proceed prose. On August 15, 2016, petitioner

filed an amended prose PCiv\ petition. On November 2, 2016, the Commonwealth filed a Motion

to Dismiss the petition. On January 6, 2017, having reviewed the pleadings and determ.ined that

petitioner's claims lacked merit, this Court sent petitioner notice of its intent to deny and dism.iss his

PClv\ petition without a hearing pursuant to Pa.RCrim.P. 907 (907 Notice). On January 26, 2017,

petitioner filed a response to the 907 Notice. Finding that petitioner's response to the 907 Notice

raised no new claims and asserted no additional facts to supplement the claims already raised so as

to warrant relief, this Court dismissed petitioner's PCR.1\ petition on February 17, 2017. This timely

appeal followed.

FACTS:

              On August 7, 2009, at approximately 11 :35 p.m., Orlando Morrison (decedent) was fatally

shot inside his place of employment, Cousin Danny's Lounge, an exotic bar located at 322 South

52"d Street in Philadelphia. Notes of Testimony (N.T.) 12/7 /2010 at 85, 60; 12/8/2010 at 43.


6
Commonwealth v. Hook, No. 1322 EDA 2011, slip op. (Pa.Super, J:m. 9, 2012) (memorandum opinion), allocatur
�' No. 34 E"\L 2012, slip op. (Pa.,Jul. 9, 2012).

7     42 Pa.C.S. §§ 9541-9546.

8
      Dennis Turner, Esquire, was appointed to represent petitioner on collateral attack.

9
 This matter was assigned to this Court on May 25, 2016. On.June 24, 2016, pursuant to this Court's Order on June 7,
2016, PC]v\ counsel appeared to address what, if anything, he had done for this matter since entering his appearance.

III
      Commonwealth,.. Grazier, 713 _-\.2d 81 (Pa. 1998).
                                                                2
        Between the hours of 3:00 p.m. and 4:00 p.m. on August 7, 2009, the decedent went to get a

pedicure at a nail salon located at 61•• Street and \\'ioodland Avenue, accompanied by his girlfriend,

Tiffany Tadlock, Ms. Tadlock's sister, Bayyinah Debose, a woman named Shoshanah, and two little

girls. N.T. 12/8/2010 at 10, 13, 118. While he was there, Kina Moore, the sister of the decedent's

daughter's mother, lasia Moore, came into the nail salon with the decedent's daughter, Anyca, age

seven." N.T. 12/8/2010 at 38, 12. Upon seeing the decedent in the company of several women,

Kina Moore called her sister, lasia, complaining that the decedent "was there with five other females

and that he was getting their nails done and he needs to get his daughter's nails done." N .T.

12/8/2010 at 41. Feeling "bad vibes," Ms. Tadlock decided to leave the nail salon, and went home

with Ms. Debose to the house they shared. N.T. 12/8/2010 at 15-16. Despite the decedent's ready

agreement to pay for his daughter to have her nails done, he and Kina continued to argue, and the

fight carried over into the street outside the nail salon. N.T. 12/8/2010 at 15, 41, 155. The

argument became physical, as the decedent bent Kina's fingers back and grabbed her by the collar.

N.T. 12/8/2010 at 42, 46. Kina grabbed him back, ripping the collar of hist-shirt. N.T. 12/8/2010

at 42, 46, 116.

        Prompted by a phone call that J\Is. Tadlock received, Ms. Debose called the decedent. N.T.

12/8/2010 at 17. \\'ihen the decedent picked up the phone, Ms. Debose heard him arguing with

Kina. N.T. 12/8/2010 at 17-18. I<.ina yelled, "I'm gonna get you touched," to which the decedent

responded, "[p ]lay pussy, get fucked. You know where I work at." Id. at 115. Iasia Moore, who

was on the phone with Kina, heard the same exchange: Kina telling the decedent she was going to

"get him touched," and the decedent responding that she [Kina] knew where he worked."                      1i at 47.

\\'ihen Iasia and Kina spoke later that evening, Kina told Iasia that the decedent had also told her "to




11Kina Moore was petitioner's girlfriend, and the two of them had been Living together for approximately two and a half
years as of August 7, 2009. N.T. 12/8/2010 at 39, 157.
                                                          3
go get [her] boyfriend, that he knows where he works."                lil at 48.   Iasia testified at trial that she had

heard the phrase before, and was familiar with it, and that her understanding of the phrase "get

someone touched" was that it means "to have something done to someone." Id. at 47, 48. Ms.

Debose testified that "get someone touched" " ... could mean a whole lot of things. But on the

street when certain people say that, that means they going to get you killed." N.T. 12/8/2010 at

122. In her statement to detectives, she explained that the phrase means, "I'm gonna get someone

to get you or someone to beat you upl,] it could mean a lot of things. It could mean I could get

someone to kill you, or I can get you beat up."            .l£L at 121.

           After his argument with Kina, the decedent returned to Ms, Tadlock's and Ms. Debose's

house, changed his clothes, and went to work. N.T. 12/8/2010 at 124-25. Around 11:00 p.m.,

Tameka Beverly arrived at Cousin Danny's Lounge with her friend, Syreeta Delgado; the two

women were there to pick up a girlfriend, who was bartcnding at the lounge. N.T. 12/7 /2010 at 81-

83, 106. \Xlhen they arrived, three men were standing outside the lounge, one of whom was the

decedent, who proceeded to follow the two women inside.                   hl at 82-83. Because their girlfriend

was not yet finished with her shift, Ms. Beverly and Ms. Delgado waited at the bar, and Ms. Delgado

and the decedent struck up a conversation. Id, at 83-85.

           1\ t 11 :30 p.m., J cffrey Gibson, standing outside the lounge, saw petitioner walk into the

lounge.12· 13 N.T. 12/8/2010 at 63-64. Inside the lounge, Ms. Beverly saw petitioner come partially

                       14 15
through the inner door, • and fire three shots at the decedent, who was standing in front of the


12 Mr, Gibson had come to the bar with a female
                                                acquaintance, who had gone into Cousin Danny's Lounge to purchase
marijuana. N.T. 12/8/2010 at 63-64. �Ir. Gibson was w;iiting outside, watching his cousin's bike while the cousin was
inside the Lounge. Id.

U    Mr. Gibson later identified petitioner in a police photo array. N.T. 12/8/2010 at 73-76.

1�Cousin Danny's Lounge had an interior door, separated from the front door bra small vestibule. N .T. 12/7 /2010 at
151-52. The interior door opened outward, into the vestibule. ill at 158.

rs Ms, Beverly later identified petitioner in a police phoro array. :\r first look, she pointed out rwo men that looked
familiar, but upon taking a second look, she definitively identified petitioner. N.T. 12/7 /2010 ar 93-95.
                                                              4
door, still talking to her and to Ms. Delgado. N .T. 12/7 /2010 at 86, 88. Petitioner was wearing a

brown hoody, with the hood up, the front of which only covered his hairline, leaving his whole face

exposed." N.T. 12/8/2010 at 6; 12/7 /2010 at 89-90. Petitioner then left the Lounge, tucking his

   17
gun into his pants as he walked out, and walked towards Pine Street. N .T. 12/7 /2010 at 65. As he

got to Pinc Street, police sirens sounded, and petitioner began to run.              fil.

           Philadelphia Police Officers Michelle Dennard-Sherard and Elaine Thomas were at a car

stop at 52"J and Spruce Streets, less than half a block from Cousin Danny's Lounge, when they

heard three gunshots. N.T. 12/7 /2010 at 60-61, 12/8/2010 at 128. The decedent had been shot

three times; all threebullets were recovered by the Assistant Medical Examiner from inside the

decedent's body. N.T. 12/8/2010 at 176-79.

            Philadelphia Crime Scene Investigator William Whitehouse recovered three fired' cartridge

casings (FCCs) from the floor inside the vestibule of Cousin Danny's Lounge. N.T. 12/7 /2010 at

145, 147. The Firearms Identification Unit found that all three FCCs were from the same Glock

firearm, a seiniautornatic weapon. Id, at 176-81.

LEGAL ANALYSIS:

           Petitioner raises the following issues on appeal:"

            1.   The PCRA court erred in violation of the Supremacy Clause of the United States
                 Constitution where it denied relief on petitioner's claim that the Commonwealth and the
                 trial court was without authority to sentence petitioner to life imprisonment without first
                 conducting a penalty hearing.




16
   Ms. Beverly testified that petitioner was standing under a light, which was turned on, and which was located at the top
of the inner doorway. N.T. 12/7 /2010 at 88. Mr. Gibson testified that there were lights outside the lounge, also turned
on. N.T. 12/8/2010 ill 67.

17   Mr, Gibson testified that he recognized the gun as being a semi-automatic. N.T. 12/8/2010 at 67.

1�   These claims have been renumbered and rephrased for ease of disposition.

                                                             5
            2. The PCRJ\ court erred in violation of the Supremacy Clause of the United States
               Constitution where it denied relief on petitioner's claim that the trial court issued a
               "deficient anti-deadlock instruction" to the jury.

            Initially, with respect to both issues, this Court notes that, while petitioner raised variations of

these claims in his PCRA petition, only on appeal has petitioner characterized either claim as an

assertion that the trial court erred in conflict with federal constitutional law, therefore implicating

the Supremacy Clause of the United States Constitution." \'vith respect to petitioner's first issue,

petitioner claimed ineffective assistance of counsel for trial counsel's failure to object to the Court's

authority to sentence him to life imprisonment without first conducting a penalty hearing, which

petitioner claimed was in violation of 42 Pa.C.S. § 9711 (a)(1). With respect to petitioner's second

issue, petitioner alleged both that the trial court erred when it gave a "deficient anti-deadlock

instruction" ("Spencer2" charge") and that trial counsel was ineffective for failing to raise an

objection to the Court's alleged omission of language in that instruction.

            "Issues not raised in the lower court are waived and cannot be raised for the first time on

appeal." Pa.R.A.P. 302(a). "In order to preserve an issue for review, a party must make a timely and

specific objection." Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa.Super. 2003), ciling

Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.Super. 1997). Moreover, "[a)n appellant may not

raise a new theory for an objection made [in the lower court] on his appeal." Id., tiling

Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa.Super. 1996) (emphasis added). "[B]elated

attacks upon what happened at trial arc better suited for consideration under a different rubric, such

as ineffective assistance of counsel, where the proper focus is on the reasons counsel failed to raise

an issue which was never brought to the trial judge's attention at a time when remedial measures

might have been undertaken." Commonwealth v. Watkins, 843 A.2d 1203, 1219 (Pa. 2003). This



19
     U.S. Const. art. VI, cl. 2.

2
    ° Commonwealth v. Spencer, 275 A2d 299 (Pa. 1971).
                                                         6
Court will not address whether petitioner's new theories on appeal, which ground his claims in the

Supremacy Clause rather than asserting ineffective assistance of counsel and trial court error in

applying the statutory law of this Commonwealth, result in waiver of those claims. That is a

determination for Superior Court. In lieu of attempting to anticipate the Supremacy Clause

arguments which petitioner intends to raise in this appeal, this Court will instead discuss petitioner's

claims, and this Court's basis for finding that they were mcritless, as they were raised in petitioner's

pro se filings.

     1. The Legality of Petitioner's Sentence of Life Without Parole

     Petitioner's amended petition claimed that counsel was ineffective for failing to object that this

Court lacked the authority to sentence petitioner to life imprisonment without first conducting a

penalty hearing. Amended Petition, 9 / 30 / 13, at 10-15. In support, petitioner cited to 42 Pa.C.S. §

9711 (a)(1 ), which provides for a separate sentencing hearing in which the jury determines whether to

impose a sentence of death or life imprisonment following a verdict of murder of the first degree.

Petitioner apparently was asserting that, in the absence of the jury deciding between a sentence of

death or life imprisonment, a decision that was not before the jury, petitioner could not receive a life

sentence.21 This claim lacked merit.

     The law of this Commonwealth provides that, in a capital case, a person who has been convicted

of murder of the first degree "shall be sentenced to death or to a term of life imprisonment in

accordance with 42 Pa.C.S. § 9711." 18 Pa.C.S. § 1102(a)(1). However, the sentencing procedure

set forth in§ 9711 on!y applies where the Commonwealth has elected to seek the death penalty;



21
   Petitioner argued at length that, because § 9711 does not explicitly provide the procedures for sentencing defendants
where the Commonwealth does nor pursue the death penalty, it is illegal for a court to impose a mandatory sentence of
life imprisonment for rhosc found guilty of murder of the first degree where a penalty phase is unnecessary because the
Commonwealth has not pursued the death penalty. \\;rhilc this Court finds that petitioner has raised a valid point that
the statute could have been written with more clarity to accounr for this circumstance, it nonetheless does not entitle
petitioner to relief. See 1 Pa.CS.§ 1922(1) (providing that, in ascertaining legislative intent in the enactment and
application of a statute, Pennsylvania courts arc to presume that the General Assembly docs not intend a result that is
absurd, impossible of execution or unreasonable).
                                                            7
where the Commonwealth docs not file a notice of aggravating circumstances, alleged at the time of

arraignment, there are no aggravating or mitigating circumstances for the fact finder to weigh, and,

upon conviction, a defendant is to be sentenced to the mandatory sentence of life imprisonment

under§ 1102(a)(l). See Commonwealth v. Buck, 709 1\.2d 892, 896 0)a. 1998) (finding that, because

the Commonwealth is required to file a notice of aggravating circumstances alleged at the time of

arraignment, the Commonwealth is required to disclose pre-trial whether it will seek the death

penalty). In petitioner's trial, the Commonwealth did not seek the death penalty. N.T. 12/6/10 at

10 (wherein the Court explains   to   the jury pool that "This case docs not involve the death penalty.").

Petitioner was thus required to be sentenced to the mandatory penalty of life imprisonment as

provided in § 1102. Therefore, petitioner's claim lacked merit, and it failed.

    2. Spencer Charge

        Petitioner's supplemental amended petition claimed that this Court instructed the jury with

a "deficient" Spencer charge and that trial counsel was ineffective for failing to object to allegedly

omitted language in that instruction. Supplemental Amended Petition, 8/15/16, at 3. Because this

Court never gave an instruction to the jury specifically addressing the resolution of any impasse in

deliberations, and this Court properly instructed the jury that jurors should only agree with other

jurors on the basis of honest conviction, this claim failed.

        In Commonwealth v. Spencer, 275 J\.2d 299 0\1.. 1971), our Supreme Court addressed

interaction with deadlocked juries and prohibited the use of jury charges promulgated by Allen v.

United States, 164 U.S. 492 (1896) (suggesting that a dissenting juror should "consider whether his

doubt is a reasonable one" if it did not persuade other jurors in the jury). Instead, Spencer provided

that courts should look to the guidelines of the American Bar Association ("ABA'') governing jury

deadlock. Spencer, 275 J\.2d at 338. The relevant scope and standard of review for a claim

involving a court's instructions to a deadlocked jury is for an abuse of discretion. Commonwealth v.


                                                     8
Santiago, 424 A.2d 870 (Pa. 1981). An abuse of discretion regarding instructions to a deadlocked

jury will be found where the jury verdict is the product of coercion or fatigue. Commonwealth v.

Greer, 951 A.2d 346, 354-55 (Pa. 2008).

        Petitioner claimed that this Court's jury charge was defective for omitting "an admonition

that no juror should surrender his honest conviction as to the weight or effect of the evidence solely

because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict."

Supplemental Amended Petition, 8/15/16, at 3. However, in its charge to the jury prior to excusing

the jury to deliberate, this Court made that point to the jury using substantially the same language:

        THE COURT: Review the evidence impartially with the other jurors and do not hesitate to
        reexamine your own views and change your opinion if the others convince you that you
        made a mistake. Bur each of you must finally decide the case for himself or herself. Try to
        come to a unanimous conclusion if you can do that honestly and with self-respect.

N.T. 12/9/10, at 122-23.

        As this Court made the point that jurors should only agree on the basis of honest conviction,

there were no arguable grounds for counsel   to   object. Commonwealth v. Brown, 9111\.2d 576, 583

(Pa.Super. 2006), quoting Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super. 2006) ("1\ charge

is considered adequate unless the jury was palpably misled by what the trial judge said or there is an

omission which is tantamount to fundamental error. Consequently, the trial court has wide

discretion in fashioning jury instructions."). Beyond this initial charge, the Court gave no Spencer
.       .
instruction.

        On December 9, 2010, at approximately 3:25 P!'vf at the end of the first day of deliberations,

the Court received a note from the jury foreperson indicating that the jury was unable to reach a

unanimous decision. N.T. 12/9/10 at 139-140 ("THE COURT: I received from you the note: "\Y./e

are solidly 6-6. What now?""). This Court elected to send the jurors home, to resume deliberations

the following day, and advised the jurors that, if they remained deadlocked the following morning,

they should let the Court know so that the jury could be given additional instructions. hl at 140.

                                                    9
The Court admonished the jurors not to discuss the case with anyone, including fellow jurors, in any

fashion or to conduct any individual investigation of the facts, and that they would only resume

deliberations following specific instructions by the Court the next day. Id. at 141-42. After the jury

was excused, the Court addressed counsel: "I don't know if counsel wants the Spencer charge given.

Decide both of you in the morning, if they are still deadlocked." l..d, The record for the next day

begins with the jury announcing its unanimous verdict. N.T. 12/10/10, at 3-4. As, under these

circumstances, there was no need for a Spencer charge, this Court did not give one. Further, as this

Court's initial instruction to the jury made the point that jurors should only agree with each other

according to their honest convictions, trial counsel had no basis to object. Therefore, trial counsel

was not ineffective, this Court did not err in its charge to the jury, and this claim failed.

    For the foregoing reasons, petitioner was not entitled to relief under the PCR.1\ and the Court

did not err in dismissing the petition. Accordingly, the Court's dismissal of the petition should be

affirmed.


                                                          BY THE COURT:




                                                          ���R�




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