J-S48025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 I. DEAN FULTON                          :
                                         :
                   Appellant             :   No. 3614 EDA 2017

              Appeal from the PCRA Order November 2, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007871-2013


BEFORE:    DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                         FILED AUGUST 30, 2018

     I. Dean Fulton (Appellant) appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

     The facts underlying this appeal stem from a January 24, 2010 incident

during which Appellant shot Dominique Jenkins (Jenkins) in the head, killing

him, and Lamar Henderson in the leg and buttock, seriously injuring him.

     Henderson testified that [Jenkins] wanted to purchase a gun, and
     that [Jenkins] ultimately purchased a small, silver gun from
     [Appellant] for $200.00. Approximately one week prior to the
     shooting, [Appellant] asked [Jenkins] if he could borrow the gun
     back. [Jenkins] agreed. [Appellant] gave [Jenkins] a small black
     and gold gun as “collateral” and an extra $40.00 for allowing him
     to borrow the gun since [Jenkins] had just purchased it from
     [Appellant].

     On the day of the shooting, [Appellant] called [Jenkins] and told
     him to meet him on 62nd Street and Buist Avenue to exchange the
     guns.   Henderson testified that [Appellant], Steven Jordan,

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       [Jenkins], and he met on the corner, exchanged handshakes, and
       walked to 62nd Street and Chelwynde Avenue.

       Henderson testified that [Appellant] and [Jenkins] were standing
       close to each other, face-to-face – [Appellant] was facing 63rd
       Street, [while Jenkins] was facing 62nd Street. Steven Jordan was
       standing somewhat behind [Appellant]. Henderson testified that
       he was standing towards Dicks Avenue, and that he had a clear
       view of [Appellant], [Jenkins], and Steven Jordan.

       Henderson testified: “We got to the corner of 62nd and Chelwynde.
       [Jenkins] had the collateral gun in his hand ready to just make
       the exchange. [Appellant] then pulled out the other weapon and
       just started shooting . . . He shot Dom point-blank and then
       as I tried to get away, he shot me.” [Appellant] was standing
       approximately two-and-a-half to three feet away from [Jenkins]
       when he shot him in the forehead. Henderson testified that
       [Jenkins] immediately fell against the car that he was standing
       next to after [Appellant] shot him.       He also testified that
       [Appellant] was still shooting at him (Henderson) as he tried to
       run away.

Commonwealth v. Fulton, -- A.3d --, 2016 WL 2349178, at *4-5 (Pa. Super.

2016) (unpublished memorandum) (internal citations omitted; emphasis in

original).

       Following a jury trial, Appellant was convicted of one count each of

possession of an instrument of crime, aggravated assault, firearms not to be

carried without a license, and carrying a firearm on a public street in

Philadelphia.1     On February 11, 2015, Appellant was sentenced to an

aggregate term of 9 to 18 years in prison. On February 17, 2015, Appellant

filed a post-sentence motion, which the trial court denied without hearing. On
____________________________________________


118 Pa.C.S.A. §§ 907, 2702, 6106, and 6108. Appellant was acquitted on the
charges of murder, 18 Pa.C.S.A. § 2502, and conspiracy to commit murder,
18 Pa.C.S.A. § 903, in connection with the death of Jenkins.


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March 16, 2015, Appellant filed a direct appeal with this Court. This Court

affirmed Appellant’s judgment of sentence on May 4, 2016.

       On January 31, 2017, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel to represent Appellant in his PCRA proceedings.

On August 16, 2017, the Commonwealth filed a motion to dismiss Appellant’s

PCRA petition without a hearing.               Appellant filed a response to the

Commonwealth’s motion on August 22, 2017. On September 21, 2017, the

PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition

without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal

Procedure. On September 10, 2017, Appellant filed a response to the PCRA

court’s Rule 907 notice. On November 2, 2017, the PCRA court dismissed

Appellant’s PCRA petition. This timely appeal followed.2

       On appeal, Appellant presents the following issues for our review

(reordered for ease of disposition):

       I.     WHETHER TRIAL COUNSEL WAS CONSTITUTIONALLY
              INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL
              COURT’S OMISSION OF A FOWLIN INSTRUCTION WHEN
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2 On November 27, 2017, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. On December 19, 2017, counsel
for Appellant filed a Rule 1925(b) statement. We note, however, that
Appellant’s “concise” statement is anything but concise. Appellant takes 18
pages to complain of the PCRA court’s order denying his petition without a
hearing, listing 5 issues as to why this order was in error. Arguably, Appellant
has waived all issues on appeal given the statement’s length, breadth and
complexity. See Pa.R.A.P. 1925(b)(4)(iv). In the interest of justice, however,
we decline to find waiver, but caution counsel to comply with our Rules of
Appellate Procedure in all future filings.

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             THE TRIAL RECORD WAS SUFFICIENT TO SUPPORT THE
             INSTRUCTION AND THE FAILURE TO OBJECT TO ITS
             OMISSION DEPRIVED [APPELLANT] OF THE SIXTH
             AMENDMENT RIGHT TO A TRIAL BY JURY ON THE CHARGE
             OF AGGRAVATED ASSAULT AND WAIVED THE RIGHT TO
             HAVE THE APPELLATE COURT DECIDE WHETHER IT WAS
             LEGAL ERROR FOR THE TRIAL COURT TO OMIT THE
             FOWLIN INSTRUCTION?

      II.    WHETHER THE PCRA COURT DENIED THE SIXTH
             AMENDMENT RIGHT TO A JURY TRIAL AND THE
             FOURTEENTH AMENDMENT RIGHT TO SUBSTANTIVE AND
             PROCEDURAL DUE PROCESS AND SIMILAR RIGHTS
             PROTECTED BY THE STATE CONSTITUTION WHEN SHE
             MANUFACTURED FINDINGS OF FACT PATENTLY CONTRARY
             TO THE TRIAL RECORD AND, IN ANY EVENT, WITHIN THE
             EXCLUSIVE PROVINCE OF A PROPERLY INSTRUCTED JURY?

      III.   WHETHER THE PCRA COURT ERRED AND DENIED
             PROCEDURAL DUE PROCESS WHEN SHE DENIED THE
             CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
             WITHOUT HOLDING AN EVIDENTIARY HEARING?

Appellant’s Brief at 2-3.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and

citations omitted).   “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, his conviction or sentence

resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] §

9543(a)(2)[.]” Id.

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,



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the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.” Id. (citation omitted). If an appellant

fails to prove by a preponderance of the evidence any of the three prongs, the

Court need not address the remaining prongs of the test. Commonwealth

v. Williams, 863 A.2d 505, 513 (Pa. 2004).

       In his first two issues, Appellant argues that the PCRA court erred in

concluding that trial counsel was not ineffective for failing to request a jury

instruction based on Commonwealth v. Fowlin, 710 A.2d 1130 (Pa. 1998).3

Appellant argues the evidence reveals he shot Henderson, who was a



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3 In Fowlin, the defendant was accosted by three men who assaulted him
with pepper spray and simultaneously drew a handgun. The defendant
assumed, with reason, that they intended to kill or seriously injure him. He
acted instinctively and began shooting at the men, killing one of his attackers.
While defending himself, however, the defendant also shot and injured an
innocent bystander. Our Supreme Court held:

       Because the crimes with which Fowlin was charged[, reckless
       endangerment and aggravated assault,] require proof of
       recklessness, and because . . . a claim of self-defense, if believed,
       negates any element of recklessness, Fowlin, a fortiori, cannot be
       found to have been reckless [in injuring the innocent bystander],
       for the Commonwealth admits that his actions were justified. If
       he cannot be held to have been reckless, he cannot be convicted
       of aggravated assault or reckless endangerment. . . .

Fowlin, 710 A.2d at 1133.

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bystander, in the course of shooting Jenkins in self-defense, and thus, he was

prejudiced by trial counsel’s failure to raise a justification defense.

      Appellant was convicted of aggravated assault under 18 Pa.C.S.A. §

2702(a)(1), which provides, in relevant part:

      § 2702. Aggravated assault

      (a) Offense defined. – A person is guilty of aggravated assault
      if he:

      (1) attempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life[.]

18 Pa.C.S.A. § 2702(a)(1).

      In Pennsylvania, the right to use deadly force in self-protection is strictly

delimited by statute:

      § 505. Use of force in self-protection

                               ***

      (b) Limitations on justifying necessity for use of force. –

                               ***

      (2) The use of deadly force is not justifiable under this section
      unless the actor believes that such force is necessary to protect
      himself against death, serious bodily injury, kidnapping or sexual
      intercourse compelled by force or threat; nor is it justifiable if:

           (i) the actor, with the intent of causing death or serious
           bodily injury, provoked the use of force against himself
           in the same encounter; or

           (ii) the actor knows that he can avoid the necessity of
           using such force with complete safety by retreating,


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          except the actor is not obliged to retreat from his
          dwelling or place of work, unless he was the initial
          aggressor or is assailed in his place of work by another
          person whose place of work the actor knows it to be.

18 Pa.C.S.A. § 505(b)(2).

     In rejecting his ineffective assistance of counsel claim, the PCRA court

concluded that Appellant’s claim was without arguable merit.         The court

explained:

     [I]n order for Counsel to be ineffective, the first prong of the test
     is that the issue must have merit. In the direct appeal, the
     [Appellant] argued that there was insufficient evidence
     establishing that he intentionally shot Mr. Henderson and,
     therefore, pursuant to Commonwealth v. Fowlin, . . .
     [A]ppellant’s argument is that the evidence revealed that he shot
     Mr. Henderson, who was a bystander, in the course of shooting
     Mr. Jenkins in self-defense and, thus, he cannot be found guilty of
     aggravated assault . . . .

     In Commonwealth v. Fowlin, an innocent bystander was struck
     while the defendant was acting under a reasonable belief that self-
     defense was necessary. In Fowlin, the Court dismissed the
     aggravated assault charge stemming from a gunshot injury to an
     innocent bystander where the accused, who had simply been
     sitting at a bar, justifiably fired his gun multiple times at three
     attackers who had ambushed him, thrown him to the floor, stayed
     on top of him to continue the attack, maced him to near blindness
     and pointed a gun in his face.

     In that case, the [d]efendant, fearing that he was about to be
     killed, . . . drew his own handgun and fired repeatedly in the
     direction of the attackers. Although he was nearly blinded by the
     pepper spray, he killed the assailant, who had drawn the gun, and
     wounded one of the others. However, he also wounded an
     innocent bystander.

     As this Court found in its opinion to the Superior Court, the facts
     of Fowlin are readily distinguishable from the facts in this
     particular case.



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     Mr. Henderson was not an unintentionally injured third party
     bystander. Mr. Henderson himself testified that, quote, appellant
     shot [Mr. Jenkins] . . . point-blank, he was shot within a foot and
     Mr. Henderson was with [Mr. Jenkins]. They approached together
     and then, as I tried to get away, he shot me. Mr. Henderson was
     shot in the back of the right leg and left buttock.

                                   ***

     At that particular point, the [A]ppellant wasn’t defending himself
     against anyone. The person, who he believed caused the threat,
     was totally incapacitated and down. The person, Mr. Henderson,
     who was standing beside [Jenkins], who was never claimed to
     have been armed or pointed a weapon or did anything
     threatening, ran away . . . after the first shooting incident
     happened and [Jenkins] was totally incapacitated. . . .

N.T., 9/21/17, at 6-9; see also Fulton, 2016 WL 2349178, at *7-10.

     In advancing his present appeal, Appellant essentially asks this Court to

reconsider the evidence in the light most favorable to him and deem his

version of the facts credible.   Specifically, Appellant avers that because

Henderson was standing between Jenkins and Appellant when he was shot,

Appellant could not have shot Henderson intentionally. Appellant’s Brief at

26. To support his position, Appellant points to the following exchange that

occurred during Appellant’s cross-examination of Henderson during trial:

     [Attorney for Appellant]: A few moments ago you said you were
     standing between the person you are identifying as [Appellant]
     and the person you are saying is [Jenkins], am I right about that,
     sir?

     [Henderson]: Yes.

N.T., 10/9/14, at 192-93; see also Appellant’s Brief at 26.




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          The trial court, however, ultimately credited the testimony of Henderson

over that of Appellant, explaining:

          Moreover, the evidence tended to show where [Appellant],
          Henderson, and [Jenkins] were respectively standing at the time
          of the shooting . . . that [Appellant] intentionally shot Henderson.
          Henderson was not literally standing “in between” [Appellant]
          and [Jenkins] as defense counsel repeatedly asserts. Henderson’s
          testimony established that [Appellant], [Jenkins], and he were
          essentially standing in a triangle – [Appellant] and [Jenkins] were
          standing close to each other, face-to-face; and Henderson was
          facing Dicks Avenue, permitting him to have a clear view of both
          [Appellant] and [Jenkins].        Based on Henderson’s position,
          [Appellant] would have had to shoot [Jenkins] in the forehead and
          then re-position the firearm to his far right in order to shoot
          Henderson in the back of his right leg and buttock.

Fulton, 2016 WL 2349178, at *9 (quoting Trial Court Opinion, 8/7/15, at 11-

13) (emphasis in original). Our review of the record finds ample support for

the PCRA court’s determination that Appellant’s claim lacks arguable merit.

Accordingly, because Appellant’s appeal depends entirely upon an untenable

argument, it provides no basis upon which to reverse the order denying PCRA

relief.

          Finally, Appellant argues that the PCRA court erred in dismissing his

case without a hearing. This Court has explained:

          [T]he right to an evidentiary hearing on a post-conviction petition
          is not absolute. It is within the PCRA court’s discretion to decline
          to hold a hearing if the petitioner’s claim is patently frivolous and
          has no support either in the record or other evidence. It is the
          responsibility of the reviewing court on appeal to examine each
          issue raised in the PCRA petition in light of the record certified
          before it in order to determine if the PCRA court erred in its
          determination that there were no genuine issues of material fact
          in controversy and in denying relief without conducting an
          evidentiary hearing.

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Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (internal

citations and brackets omitted). If the PCRA court “can determine without an

evidentiary hearing that one of the prongs cannot be met, then no purpose

would be advanced by holding an evidentiary hearing.” Commonwealth v.

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

     Appellant argues that the PCRA court was “required to hold an

evidentiary hearing where, as here, the facts set forth in the PCRA petition,

assumed to be true, entitle the Petitioner to the relief sought.” Appellant’s

Brief at 13. As discussed above, the evidence Appellant would have presented

in support of this claim would have been Henderson’s testimony on cross-

examination that was already made a part of the record.      The trial court,

however, credited Henderson’s testimony on direct examination.      As there

were no genuine issues of material fact in controversy, no purpose would have

been served by holding a hearing. Accordingly, the PCRA court did not err in

denying Appellant’s petition without a hearing.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/18

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