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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
SHAWN WINTERS,                            :         No. 1329 EDA 2017
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, March 17, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0006675-2009


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JUNE 01, 2018

        Shawn Winters appeals from the order of March 17, 2017, issued by

the Court of Common Pleas of Philadelphia County that dismissed his PCRA 1

petition without a hearing. After careful review, we affirm.

        The factual history of this matter as recounted by the PCRA court is as

follows:

              On or around February 9, 2009 Lynda Collazo (the
              decedent) was shot in the head in an alley in
              Philadelphia. According to the decedent’s partner, at
              the time of the murder [appellant] was the
              decedent’s drug supplier.     On the night of the
              murder, [appellant] called the decedent to set up a
              drug deal, and picked her up from her house.
              Instead of dealing with the decedent directly and at
              her home as he had done before, [appellant] was to
              facilitate a drug deal in a remote location between
              the decedent and a third party whom she had never

1   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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              met. [Appellant] then took her to the 400 block of
              West        Abbotsford        Street,     Philadelphia.
              Matthew Burse was already in the vicinity. Burse
              testified that he also expected to purchase marijuana
              from [appellant] that evening, and did not serve as
              [appellant’s] connection to the unknown third-party
              drug dealer, as [appellant] asserted. Burse testified
              that [appellant] instructed him to wait in his own
              vehicle nearby as [appellant] and the victim went
              into the alley to retrieve the marijuana. After he saw
              [appellant] and the victim enter the alley, he heard
              gunshots and witnessed [appellant] running out of
              the alley. [Appellant’s] cell phone was found in the
              alley, 20 feet from the decedent’s body, and, at trial,
              [appellant] admitted that he fled the scene
              immediately after the shooting.        Burse testified
              [appellant] told him a few days later that he,
              [appellant] had shot the victim.

Trial court opinion, 8/4/17 at 2-3 (citations to record omitted).

        The trial court also set forth the following procedural history:

              On July 21, 2010, following a capital jury trial before
              this Court, [appellant] was found guilty of murder of
              the first degree (H-1).[2] On July 22 and 26, 2010,
              after a penalty phase hearing, the jury found that
              there were two aggravating circumstances and one
              mitigating circumstance, and that the aggravating
              circumstances did not outweigh the mitigating
              circumstance, and that therefore [appellant] should
              receive a sentence of life imprisonment. On that
              same day, this Court sentenced [appellant] to life
              imprisonment without parole.

              On July 30, 2010, [appellant] filed post-sentence
              motions, which were denied by this Court on
              November 24, 2010. [Appellant] filed a timely notice
              of appeal on December 23, 2010. On April 30, 2012,
              Superior    Court  affirmed  the     judgment     of
              sentence.[Footnote 6] On August 28, 2012, our


2   18 Pa.C.S.A. § 2502(a).


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            Supreme Court denied [appellant’s] petition for
            allowance of appeal.[Footnote 7].

                  [Footnote   6]    Commonwealth      v.
                  Winters, 3[48]9 EDA 2010, slip op.
                  (Pa.Super. Apr. 30, 2012) (memorandum
                  opinion).

                  [Footnote   7]  Commonwealth      v.
                  Winters, 265 EAL 2012, slip op. (Pa.
                  Aug. 28, 2012).

            On October 16, 2013, [appellant] filed a timely
            pro se PCRA petition.       Counsel was appointed,
            entering his appearance on August 14, 2014. On
            June 12, 2016, counsel filed an amended PCRA
            petition (Amended Petition). On September 2, 2016,
            the Commonwealth responded to the Amended
            Petition with a Motion to Dismiss. After reviewing
            the pleadings, on February 1, 2017, this Court sent
            [appellant] notice of its intent to deny and dismiss
            his    claim  without     a   hearing   pursuant   to
            Pa.R.Crim.P. 907 (907 Notice). A response to this
            Court’s 907 Notice was filed February 15, 2017, and,
            after reviewing it, this Court nevertheless dismissed
            [appellant’s] petition, on March 17, 2017.       This
            timely appeal followed.

Trial court opinion, 8/4/17 at 1-2 (footnotes 1-5, 8, and 9 omitted).

      On April 18, 2017, the trial court ordered appellant to file a statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant

complied with the order on May 8, 2017.            The trial court issued its

Pa.R.A.P. 1925(a) opinion on August 4, 2017.

      Appellant presents the following issues for this court’s review:

            I.    Did the PCRA Court err when it failed to grant
                  a hearing and where [appellant] properly pled,
                  and would have been able to prove, that trial
                  counsel was ineffective for having failed to


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                   object to the         jury   charge   concerning
                   accomplice liability?

            II.    Did the PCRA Court err when it dismissed
                   without a hearing and without granting relief
                   where [appellant] properly pled and would
                   have been able to prove that he should have
                   been awarded a new trial as the result of
                   ineffective assistance of counsel when counsel
                   failed to request a jury instruction on “corrupt
                   source,” thus denying [appellant] due process
                   under     the    Pennsylvania     and    Federal
                   Constitutions?

Appellant’s brief at 3.

      Initially, we recite our standard of review:

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            [T]he right to an evidentiary hearing on a
            post-conviction     petition   is    not    absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014
            (Pa.Super.2001).     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. Id.
            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


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            material fact in controversy and in denying relief
            without   conducting    an   evidentiary  hearing.
            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

Turetsky, 925 A.2d at 882, quoting Commonwealth v. Khalifah, 852

A.2d 1238, 1239-1240 (Pa.Super. 2004).

      Appellant raises two claims of counsel ineffectiveness. First, he argues

that his trial counsel was ineffective because he failed to object to the jury

charge concerning accomplice liability. Second, appellant contends that his

trial counsel was ineffective because he failed to request a jury instruction

on a “corrupt source” which resulted in a denial of appellant’s right to due

process under the Pennsylvania and United States constitutions.       For the

reasons discussed infra, we find that neither contention has arguable merit.

            The law presumes counsel has rendered effective
            assistance.     Commonwealth v. Gonzalez, 858
            A.2d 1219, 1222 (Pa.Super.2004), appeal denied,
            582 Pa. 695, 871 A.2d 189 (2005). To establish a
            claim of ineffective assistance of counsel, Appellant
            must demonstrate (1) the underlying claim is of
            arguable merit; (2) counsel’s action or inaction
            lacked any reasonable basis designed to effectuate
            Appellant’s interest; and (3) but for the errors and
            omissions of counsel, there is a reasonable
            probability that the outcome of the proceedings
            would have been different.       Commonwealth v.
            Johnson, 868 A.2d 1278, 1281 (Pa.Super.2005),
            appeal denied, 583 Pa. 680, 877 A.2d 460 (2005)
            (internal citations omitted); Gonzalez, supra. The
            failure to satisfy any prong of the test for
            ineffectiveness will cause the claim to fail.
            Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651
            (2003). “The threshold inquiry in ineffectiveness
            claims is whether the issue/argument/tactic which
            counsel has foregone and which forms the basis for


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            the assertion of ineffectiveness is of arguable
            merit. . . .” Commonwealth v. Pierce, 537 Pa.
            514, 524, 645 A.2d 189, 194 (1994). “Counsel
            cannot be found ineffective for failing to pursue a
            baseless or meritless claim.” Commonwealth v.
            Poplawski, 852 A.2d 323, 327 (Pa.Super.2004).

Commonwealth v. Taylor, 933 A.2d 1035, 1041-1042 (Pa.Super. 2007),

appeal denied, 951 A.2d 1163 (Pa. 2008).

      Initially, appellant asserts that he was prosecuted as a lone defendant,

the Commonwealth’s theory was that appellant acted alone, and neither the

Commonwealth nor appellant’s counsel introduced any evidence to the

contrary.   However, the trial court chose to give the instruction regarding

accomplice liability, and appellant’s counsel failed to object, which rendered

appellant’s counsel ineffective. (Appellant’s brief at 9.)

      Section 306(c) of the Crimes Code defines accomplice liability as

follows:

            Accomplice defined.--A person is an accomplice of
            another person in the commission of an offense if:

            (1)   with the intent of promoting or
                  facilitating the commission of the
                  offense, he:

                  (i)    solicits such other person to
                         commit it; or

                  (ii)   aids or agrees or attempts to
                         aid such other person in
                         planning or committing it; or

            (2)   his conduct is expressly declared by law
                  to establish his complicity.



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18 Pa.C.S.A. § 306(c).

      “Accomplice liability may be established by circumstantial evidence.

Only the least degree of concert or collusion in the commission of the

offense is sufficient to sustain a finding of responsibility as an accomplice.

No agreement is required, only aid.”         Commonwealth v. Mitchell, 135

A.3d 1097, 1102 (Pa. Super. 2016) (internal citations and quotations

omitted). A person’s mere presence at the crime scene by itself does not

constitute complicity.   Commonwealth v. Manchas, 633 A.2d 618, 627

(Pa.Super. 1993).

      Appellant argues that the trial court erred when it gave the instruction

on accomplice liability and that his trial counsel was ineffective when he

failed to object to the instruction.   Appellant asserts that as there was no

factual or legal basis for the instruction, his counsel was ineffective for failing

to object to the instruction.     He also argues that he suffered prejudice

because the instruction gave the jury the opportunity to find him guilty

based on a legal theory that was inapplicable and that the Commonwealth

had not pursued.

      In its opinion, the trial court reasoned:

            While the Commonwealth’s theory at trial asserted
            that [appellant] was guilty of the victim’s murder as
            the principal, evidence was also presented from
            which the jury could have found that [appellant] was
            instead an accomplice of another person in a plan to
            kill the victim. The evidence showed that [appellant]
            had called the victim on the night of her death and
            drove her from her home to the scene of the


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          shooting under the guise of helping her to purchase
          two pounds of marijuana. [Appellant] admitted that
          he facilitated the alleged drug deal between the
          victim and a third party, whom neither he nor the
          victim had ever met, in a remote location, instead of
          dealing with the victim directly and at her home as
          he had done on previous occasions. [Appellant] also
          admitted that he led the victim towards the alley
          where she was shot in the face multiple times at
          close range.    [Appellant’s] cell phone was found
          20 feet from the victim’s, and [appellant] admitted
          that he had immediately fled the scene after the
          shooting. When initially questioned by police as to
          when [appellant] had last seen the victim [appellant]
          lied.

          On July 20, 2010, after the defense closed its case,
          the Commonwealth requested that the Court also
          charge the jury on murder of the third degree and
          accomplice liability based on the possibility that the
          jury could accept trial counsel’s argument that
          [appellant] was not the shooter, but still consider
          that he was an accomplice in a plan to kill the victim.
          The Court granted the Commonwealth’s request,
          noting that the evidence discussed supra and trial
          counsel’s defense theory, which asserted [appellant]
          had not shot the victim and was not involved,
          warranted charging the jury on accomplice liability.

          In his petition, [appellant] argued that, due to the
          fact that the jury acquitted him of the firearms
          offenses, the jury must have found him guilty on a
          theory of accomplice liability, and that he was
          therefore prejudiced by counsel’s failure to object to
          the accomplice liability instruction. As the issue of
          “inconsistent verdict” has already been dismissed by
          Superior Court, this Court cannot reconsider it.
          Winters, 3849 EDA 2010 at 6. Superior Court also
          concluded that there was sufficient evidence to
          enable the jury to properly find [appellant] guilty of
          first-degree murder as the principal shooter. Id. at
          5-7. Additionally, [appellant] suffered no prejudice
          even if he was convicted as an accomplice, as he
          would be equally criminally liable, and defendants


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            can be convicted as accomplices even if only charged
            as principals. Commonwealth v. Potts, 566 A.2d
            287, 293 (Pa.Super. 1989) (holding defendants
            suffer no prejudice for being convicted as
            accomplices even if Commonwealth does not initially
            charge on accomplice liability)[.] As long as the
            theories at trial link defendant and another in the
            commission of the crime, defendant has adequate
            notice, and is thus not prejudiced. Id. Here, it was
            [appellant] who injected the theory of another
            person into the case. Therefore, because [appellant]
            did not establish that he was prejudiced when
            counsel did not object to this Court’s accomplice
            liability charge.

Trial court opinion, 8/4/17 at 4-6 (citations to record omitted; footnotes

omitted).

       Appellant argues that there was no evidence of collusion or accomplice

liability and that if there had been, the Commonwealth would have pursued

it.   Appellant asserts that the mere fact that his attorney argued that

someone else could have killed the victim is of no moment because, if

appellant did not do it, of course, somebody else did and that would not

make appellant an accomplice.

       Based on the record before this court, appellant did not establish that

he suffered prejudice as the trial court specifically instructed the jurors to

only find appellant guilty as an accomplice “if he intended to bring about the

crime or to assist in bringing about the crime in some fashion.” (Notes of

testimony 7/21/10 at 148.)      It is presumed that the jurors followed the

instructions of the trial court. Commonwealth v. Busanet, 54 A.3d 35, 65

(Pa. 2012). The jury would only find appellant guilty under an accomplice


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theory if his actions fit the elements of the crime. Consequently, appellant

did not establish prejudice.

      However, while the Commonwealth put forth the theory that the

evidence at trial established that appellant was guilty of murder as the

principal, there was evidence presented which could lead the jury to find

that appellant was an accomplice of another person in a plan to kill the

victim.   Based on the evidence presented, the jury could conclude that

appellant enticed the victim to come with him to purchase marijuana in an

alley from someone she had not met before and then that person or some

other party shot the victim. A jury could have concluded that appellant was

involved in arranging for the victim to be at the alley where someone else

could have shot her. Given these facts, it was not inappropriate for the trial

court to give the accomplice liability charge.       See Commonwealth v.

Harper, 660 A.2d 596, 599 (Pa.Super. 1995) (accomplice liability instruction

was proper where Commonwealth focused on defendant as shooter but did

not expressly reject accomplice liability and witnesses testified that two

males participated in the shooting). As a result, counsel was not ineffective

for failing to object to the instruction as it was not improperly given.

      Appellant next contends that appellant must be awarded a new trial as

the result of ineffective assistance of counsel when counsel failed to request

a jury instruction of “corrupt source” which denied appellant due process

under the Pennsylvania and Federal Constitutions.        Appellant asserts that



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the only possible accomplice was Matthew Burse, and, if he were an

accomplice, the trial court had an obligation to charge the jury on corrupt

source.

      In Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999), the

Pennsylvania Supreme Court explained a corrupt source charge:

            With respect to the corrupt source charge, it is well
            established that, in any case in which an accomplice
            implicates the defendant, the trial court should
            instruct the jury that the accomplice is a corrupt and
            polluted source whose testimony should be
            considered with caution. The charges indicated in
            cases in which the evidence is sufficient to present a
            jury question with respect to whether the
            Commonwealth’s witness is an accomplice. Such a
            jury question is present when the witness could be
            indicted for the crime for which the accused is
            charged.      A person may be indicated as an
            accomplice where the evidence established that he
            “knowingly and voluntarily cooperated with her aides
            and other in the commission of a crime” with intent
            to assist the principal.

Id. at 1181 (citations omitted).

      Appellant asserts that when the trial court issued a charge on

accomplice liability, the trial court should have issued a charge on corrupt

source.

      The trial court explained its decision as follows:

            It is well settled that whether to request additional
            points for charge is one of the tactical decisions
            within    the    exclusive  province   of   counsel.
            Commonwealth v. Derk, 719 A.2d 262, 265 (Pa.
            1998), citing Commonwealth v. Sullivan, 299 A.2d
            608, 610 (Pa. 1973). “Generally, where matters of
            strategy and tactics are concerned, counsel’s


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          assistance is deemed constitutionally effective if he
          chose a particular course that had some reasonable
          basis designed to effectuate his client’s interests.”
          Commonwealth v. Puksa, 951 A.2d 267, 277 (Pa.
          2008), citing Commonwealth v. Miller, 819 A.2d
          505, 517 (Pa. 2002)[.] Courts are instructed to
          “scrupulously follow the presumption that attorneys
          act in the interests of their clients, and insist that
          [petitioner] meet his burden of proving that his
          attorneys had no reasonable basis for their action.”
          Commonwealth v. Watson, 565 A.2d 132, 139
          (Pa. 1989).

          In a criminal trial where a Commonwealth witness is
          an accomplice of the accused in a crime for which
          the accused is being tried, a “corrupt source”
          instruction advises the jury that accomplices often
          attempt to falsely place blame on another in hopes
          of obtaining favorable treatment. Pa. SSJI (Crim)
          § 4.01. In light of this reality, a “corrupt source”
          instruction advises the jury that the witness’
          testimony should be treated with “disfavor because it
          comes from a corrupt and polluted source.” Id. A
          “corrupt source” instruction is only warranted in
          cases where there is sufficient evidence to present a
          jury question with respect to whether the witness in
          question was an accomplice to the crime charged.
          Commonwealth v. Collins, 957 A.2d 237, 262 (Pa.
          2008).

          At trial, [appellant] presented a consistent theory of
          defense asserting that he had no role in the killing:
          [Appellant] testified that he drove the victim to the
          scene for the purpose of facilitating a purchase of
          two pounds of marijuana, and claimed that the
          victim and Burse entered the alley where the
          shooting took place to meet a third-party drug
          dealer. [Appellant] claimed that, after they got to
          the alley’s entrance, he realized he had left his
          phone in his car, returned to his car to retrieve it,
          and then returned to the alley with the phone.
          [Appellant] claimed that he then saw either Burse or
          the unknown third person shoot the victim in the



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             head, and that he must have dropped his phone in
             the alley as he was fleeing back to his car.

             Given that [appellant] was on trial for the shooting, a
             “corrupt source’ instruction with respect to Burse’s
             testimony would have suggested to the jury that
             [appellant] and Burse committed the crime together.
             See Commonwealth v. Spotz, 716 A.2d 580, 585
             (Pa. 1998) (“[A]n accomplice is equally criminally
             liable for the acts of another if he acts with the intent
             of promoting or facilitating the commission of an
             offense and agrees, aids, or attempts to aid such
             other person . . [. .”).] Where counsel’s strategy at
             trial is to assert that a petitioner is not involved with
             the crime, counsel has a reasonable basis for not
             requesting a “corrupt source” instruction.           See
             Commonwealth v. Williams, 732 A.2d 1167, 1182
             (Pa. 1999) (rejecting claim of counsel ineffectiveness
             for failure to request a “corrupt source” instruction
             where counsel argued at trial that defendant was not
             involved in the killing); Commonwealth v.
             Karabin, 426 A.2d 91, 93-94 (Pa. 1981) (trial
             counsel was not ineffective for failing to request a
             corrupt source instruction, which would have implied
             that the defendant participated in criminal activity of
             which he claimed to be innocent, as this would have
             derogated the defense strategy); Commonwealth
             v. Corley, 816 A.2d 1109, 1115 (Pa.Super. 2003)
             (counsel had reasonable basis not to request a
             “corrupt source” instruction because it would have
             contradicted the theory of defense, where defendant
             testified that he had no involvement with the crime).
             As trial counsel’s strategy asserted that [appellant]
             was not at all involved with the shooting, counsel’s
             basis for not requesting a “corrupt source”
             instruction was reasonable. Therefore, this claim
             fails[.]

Trial court opinion, 8/4/17 at 6-7 (citations to record omitted; emphasis in

original).




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      This court agrees with the trial court that appellant’s claim of

ineffective assistance of counsel fails. A court should not find that counsel

was ineffective if a reasonable basis exists for counsel’s decision during the

trial. See Commonwealth v. Derk, 719 A.2d 262, 265 (Pa. 1998). As the

trial court stated, a corrupt source charge to the jury that it should view

appellant as an accomplice rather than as someone who had no role in the

murder and just took the victim to the alley to conduct a drug transaction

would contradict and cast doubt on appellant’s primary theory of defense.

As counsel’s action had a reasonable basis to support the interest of his

client, appellant, counsel was not ineffective when he failed to request the

instruction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 6/1/18




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