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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH WRIGHT,                              :
                                               :
                       Appellant               :      No. 1244 WDA 2017

                   Appeal from the PCRA Order August 1, 2017
               in the Court of Common Pleas of Allegheny County,
              Criminal Division at No(s): CP-02-CR-0003580-2011

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 15, 2018

        Keith Wright (“Wright”) appeals from the Order denying his first Petition

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

        On the night of December 31, 2010, Tauvea Hurt (“the victim”) was

attending a party at a townhouse in Clairton, Pennsylvania. Around 1:00 a.m.,

Wright and his brother, Lindsey Wright (“Lindsey”), entered the townhouse

wearing masks and dark clothing. Lindsey pushed through a crowd of people,

and confronted the victim, while Wright stood by the front door. Following a

physical altercation between Lindsey and the victim, Lindsey pulled out a gun

and shot the victim. Lindsey then approached and stood over the victim, and

shot him eight more times.          Lindsey and Wright fled the townhouse.   The

victim was transported to the hospital and pronounced dead later that day.

____________________________________________


1   See 42 Pa.C.S.A. §§ 9541-9546.
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       Subsequently, Wright presented to a hospital for treatment of a bullet

wound to the foot.     Police were notified and dispatched to the hospital to

interview Wright. Police believed that Wright was an innocent bystander, so

no charges were immediately filed.        However, the police’s investigation

produced several witnesses who identified Wright and Lindsey as the masked

men.

       On February 3, 2012, following a jury trial, Wright was convicted of

second-degree murder, burglary, and criminal conspiracy to commit burglary.

The trial court sentenced Wright to an aggregate prison term of life plus 7 to

14 years. Wright filed a timely post-sentence Motion, which was denied by

the trial court.

       This Court vacated Wright’s judgment of sentence as to the burglary

conviction and affirmed the sentence in all other respects, and the

Pennsylvania       Supreme   Court   denied   allowance    of   appeal.       See

Commonwealth v. Wright, 97 A.3d 812 (Pa. Super. 2013) (unpublished

memorandum), appeal denied, 95 A.3d 278 (Pa. 2014).

       Wright filed a timely PCRA Petition. The PCRA court appointed Wright

counsel, who filed an amended Petition. Following a hearing, the PCRA court

denied Wright’s PCRA Petition. Wright filed a timely Notice of Appeal.

       On appeal, Wright raises the following question for our review:

       Whether trial counsel gave ineffective assistance for failing to
       request a jury instruction that[,] because the Commonwealth had
       lost or destroyed clothing in its possession without testing for DNA


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      or gunshot residue, any inference that it could have been
      exculpatory should have been given to [Wright]?

Brief for Appellant at 5.

               We review an order [denying] 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 the record. We will not disturb a PCRA court’s ruling
      if it is supported by evidence of record and is free of legal error.

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

omitted).

      Wright contends that his trial counsel, Christy P. Foreman, Esquire

(“Attorney Foreman”), was ineffective for failing to request a jury instruction

regarding missing evidence, Pennsylvania Standard Jury Instruction 3.21B.

Brief for Appellant at 27, 32-35.     Wright claims that the Commonwealth

possessed jeans that he was wearing the night of the incident and failed to

present the clothing as evidence at trial. Id. at 32. Wright alleges that the

fact that his jeans were blue in color is material because a witness told police

that the perpetrators were wearing all black. Id. at 28-29. Wright asserts

that had the jeans been presented as evidence at trial, the jury may have

discredited the witness’s identification of him, and found him not guilty. Id.

at 32, 34-35.    Moreover, Wright claims that Attorney Foreman lacked a

reasonable basis for not requesting the jury instruction. Id. at 34-35.

      To succeed on an ineffectiveness claim, Wright must demonstrate by a

preponderance of evidence that




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      (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). Counsel is presumed

to be effective and the burden is on the appellant to prove otherwise.

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

      In order to demonstrate the arguable merit of an ineffectiveness claim

for failure to raise a jury instruction, an appellant must prove that he was

entitled to the jury instruction based upon the evidence in the case.

Commonwealth v. Spotz, 18 A.3d 244, 299–300 (Pa. 2011).

      Pa.SSJI (Crim) 3.21B provides as follows:

            1. There is a question about what weight, if any, you should
      give to the failure of the Commonwealth to produce an item of
      potential evidence at this trial.

            2. If three factors are present, and there is no satisfactory
      explanation for a party’s failure to produce an item, the jury is
      allowed to draw a common-sense inference that the item would
      have been evidence unfavorable to that party.           The three
      necessary factors are:

            First, the item is available to that party and not to the other.

            Second, it appears the item contains or shows special
            information material to the issue; and

            Third, the item would not be merely cumulative evidence.




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             3. Therefore, if you find these three factors present and
      there is no satisfactory explanation for the Commonwealth’s
      failure to produce the item, at this trial, you may infer, if you
      choose to do so, that it would have been evidence unfavorable to
      the Commonwealth.

Pa.SSJI (Crim) 3.21B.

      Here, Taryn Ingram (“Ingram”), an eyewitness to the shooting,

“immediately identified” the masked men as Wright and Lindsey. See N.T.,

1/30/12-2/1/12, at 165-66; see also Criminal Complaint, Affidavit of

Probable Cause, 1/5/11, at 2. At trial, she testified that they were wearing

dark clothing, either black or blue in color. See N.T., 1/30/12-2/1/12, at 165-

66; see also id. at 110 (wherein Parris Shepherd testified that the two

masked men were wearing black hoodies); id. at 140 (wherein Shelby Taylor

testified that the two masked men were wearing “dark clothes”). Ingram

stated that Wright stood by the door while Lindsey walked across the living

room and engaged in a fight with the victim. Id. at 166-68. She said that

Wright remained by the front door as Lindsey shot the victim six or seven

times, and did not move until Lindsey fled out the back door, and Wright

followed. Id.

      Further, Wright admitted to being at the party when the victim was shot.

Id. at 294-98. He testified that he went with Lindsey to the party, knowing

that Lindsey intended on killing the victim as retribution for the victim’s

involvement in shooting Wright several months prior. Id. at 319-24, 345-47.

Wright stated that he watched Lindsey shoot the victim numerous times, then


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fled out the back door with Lindsey. Id. at 318-28. Moreover, testing for

gunpowder residue on Wright proved that he either fired a gun, was in close

proximity to a discharging gun, or came into contact with material that had

gunpowder residue on it. Id. at 31-32.

       The identification of Wright as one of the masked men did not rely on

the color of his pants. Indeed, none of the eyewitnesses testified that Wright

was wearing black pants. Thus, the color of Wright’s pants was not material

to the identity of the perpetrators. See Pa.SSJI (Crim) 3.21B. Because Wright

was not entitled to Jury Instruction 3.21(B), there is no arguable merit to his

ineffectiveness claim. See Ali, supra. Further, the failure to request this

instruction would not have changed the outcome of the proceedings based

upon the overwhelming evidence of guilt. Accordingly, Attorney Foreman was

not ineffective for failing to request the instruction.2

       Based on the foregoing, we affirm the PCRA court’s Order.

       Order affirmed.




____________________________________________


2  We note that in his Statement of Questions, Wright alleges that the
Commonwealth’s failure to test his jeans for gunshot residue (“GSR”) and DNA
evidence also entitled him to Jury Instruction 3.21(B). However, Wright
makes no argument as to how GSR or DNA evidence would have supported
his case. See Pa.R.A.P. 2119(a) (stating that an appellant’s argument must
include a discussion of and citation to pertinent authorities). Accordingly, this
claim is waived. See Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa.
Super. 2012) (stating that where an appellant fails to adequately develop
argument of a claim, that claim is waived).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2018




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