J-S74002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BREON LAWRENCE                             :
                                               :
                       Appellant               :   No. 1347 EDA 2018

                   Appeal from the PCRA Order April 17, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0005326-2014


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.                                 Filed: January 2, 2019

        Breon Lawrence appeals from the order, entered in the Court of

Common Pleas of Delaware County, denying his petition filed under the Post-

Conviction Relief Act (“PCRA”).1 Lawrence argues trial counsel was ineffective

for (1) failing to object and move for a new trial when the prosecution asked

a witness if he was Muslim, and (2) failing to request a voluntary manslaughter

charge. After our review, we affirm.

        On April 11, 2014, Donald Womack, Jabri Green, Dondre Ellis, and Jahkil

Swain drove to Crosby Square in Chester, Delaware County.              When they

arrived, Lawrence, who was outside of the vehicle, leaned into the vehicle and


____________________________________________


1   42 Pa.C.S.A. § 9541-9546.
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asked the victim, Swain, who was in the passenger’s seat, “[i]s it beef or is it

squashed?”2      N.T. Trial, 8/5/15, at 57.      Lawrence asked the victim this

approximately ten times. He then asked the victim if he wanted to fight, to

which the victim replied that he does not fight. Lawrence again asked, “What,

you think you can’t die? . . . I just want to know if it’s beef or if it’s squashed.”

Id. at 62-63. The victim responded with an obscenity and, when pressed

again, stated, “It’s whatever.”        Id. at 61-63.   After the victim’s response,

Lawrence pulled out a gun, ran in front of the car, and fired a shot, killing

Swain.

        Multiple witnesses identified Lawrence as the shooter and police officers

recovered the murder weapon from Lawrence’s bedroom. On August 5, 2015,

a jury found Lawrence guilty of murder in the first degree,3 recklessly

endangering another person,4 possession of an instrument of crime,5 and

persons not to possess a firearm.6




____________________________________________


2According to common street talk in Chester City, a “beef” means “problems”
and “squashed” means let’s be friends again, let’s not beef no more.” N.T.
Trial, 8/5/15, at 57. Squashed in relation to a beef means “let bygones be
bygones” and [l]et’s shake hands and make up.” Id. at 60.

3   18 Pa.C.S.A. § 2502.

4   18 Pa.C.S.A. § 2705.

5   18 Pa.C.S.A. § 907.

6   18 Pa.C.S.A. § 6105.

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      During     trial,   counsel   for   the   Commonwealth   presented   several

witnesses, including Dondre Ellis, a friend of Lawrence, who was a passenger

in the vehicle during the shooting.               During direct examination, the

Commonwealth asked Ellis where he and the victim were going before the

shooting took place. The following exchange occurred between Ellis and the

assistant district attorney:


      Q: Okay. When you guys came back up from the mall, where
      were you headed? Where were you guys going, you and Jahkil?

      A: I got dropped off.

      Q: Okay. Where'd you get dropped off at?

      A: (inaudible).

      Q: I'm sorry, say that again?

      A: I went to go pray.

      Q: You went to a parade?

      A: Wanted to go pray.

      Q: Party?

      A: Pray.

      Q: Oh, pray, I'm sorry. I couldn't -- I -- you're Muslim, correct?

      A: Yes.

      Q: Where did -- so when you got dropped off, whoever this third
      person was that was driving, where were you at in the car when
      they dropped you off? Were you in the back?


N.T. Trial, 8/5/16, at 240-41.


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      On September 11, 2015, the trial court sentenced Lawrence to life

imprisonment without the possibility of parole. Lawrence filed a timely appeal

and this Court affirmed Lawrence’s judgment of sentence on June 24, 2016.

Commonwealth v. Lawrence, 153 A.3d 1117 (Pa. Super. 2016).

      Lawrence filed a timely pro se PCRA petition on April 26, 2017. The

PCRA court appointed counsel on April 28, 2017, but on June 26, 2017, private

counsel entered his appearance and filed an amended PCRA petition on July

20, 2017. On August 15, 2017, the Commonwealth filed a response, and on

August 24, 2017, PCRA counsel filed a reply. The court held an evidentiary

hearing on March 15, 2018, and dismissed Lawrence’s PCRA petition.           On

appeal, Lawrence raises the following two issues:

      1. Did not the PCRA court err in denying Lawrence a new trial
         where the prosecutor, at trial, asked a close friend of Lawrence
         if he was a “Muslim” and trial counsel had no reasonable basis
         for failing to object and move for a mistrial?

      2. Did not the PCRA court err in failing to grant Lawrence a new
         trial where Lawrence’s trial counsel unjustifiably failed to
         request a voluntary manslaughter charge when the shooting
         was the immediate result of and was in fact during a heated
         argument?

Appellant’s Brief, at 4.

      Our standard of review on appeal from the denial of a PCRA petition is

well settled:

      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


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      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) (internal

citations omitted).

      In his first issue, Lawrence argues that the PCRA court erred in finding

counsel was not ineffective for failing to object and move for a mistrial when

the Commonwealth asked a witness and friend of Lawrence if he was a Muslim.

We find no error.

      To prevail on a claim alleging counsel’s ineffectiveness under the PCRA,

an appellant must demonstrate the following: (1) the underlying claim is of

arguable merit; (2) counsel’s course of conduct was without a reasonable

basis designed to effectuate his client’s interest, and (3) appellant was

prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable probability

that but for the act or omission in question the outcome of the proceeding

would have been different. Commonwealth v. Bracey, 795 A.2d 935, 942

(Pa. 2001); Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).

      The Pennsylvania Judicial Code provides:

      (b) Religious belief may not be shown.-- No witness shall be
      questioned, in any judicial proceeding, concerning his religious
      belief; nor shall any evidence be heard upon the subject, for the
      purpose of affecting either his competency or credibility.




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42 Pa.C.S. § 5902.     The Pennsylvania Supreme Court has stated that there

is no per se rule requiring a finding of reversible error if there is a violation of

the statute.   Rather, “whether evidence admitted in violation of a statute

actually deprives a defendant of his right to a fair trial must be viewed in light

of attendant circumstances.” Commonwealth v. Eubanks, 512 A.2d 619,

623 (Pa. 1986) (quoting Commonwealth v. Mimms, 385 A.2d 334, 336 (Pa.

1987) (emphasis added)). An isolated comment in violation of the statute is

not an automatic entitlement of relief. Commonwealth v. Allen, 361 A.2d

393 (Pa. Super. 1976).        Rather, the record must demonstrate that the

violation deprived the defendant of a fair trial. Eubanks, supra.

      In Allen, appellant argued the trial court erred in not declaring a mistrial

when an officer testified that the co-defendant stated that he worked on a

“Muslim Truck” with the appellant. Allen, 361 A.2d at 397-98. The testimony

was in response to a question regarding the statement a co-defendant gave

to the police about his occupation. In his argument, appellant claimed “any

reference to ‘Muslims’ was highly prejudicial based upon the theory that white

jurors would automatically be turned against members of the Nation of Islam

or Black Muslim religion.” Id. at 398. This Court, finding no error, reasoned

that the reference was an isolated instance of the word “Muslim” in a lengthy

trial record. We stated: “[W]e are not convinced that a jury would render an

unfair verdict merely because it was aware that a defendant, whose own

religion was undisclosed, worked on a truck operated by a religious sect, even




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if we were to accept the premise that the particular sect was controversial to

certain segments of the citizenry.” Id.

      In contrast, in Eubanks, the Supreme Court found reversible error

because the prosecution continuously asked the witness improper questions

about his religion in an attempt to discredit him even after the court sustained

objections regarding such.          The Court stated: “[A] new trial is required

because the questioning was irrelevant to any issue in the case and because

the improper inquiry concerning Eubanks' religious beliefs continued even

after the court sustained objections to this type of inquiry, gave an instruction,

and ordered the improper questions stricken from the record.” Eubanks, 512

A.2d at 623.

      Here, like in Allen, and unlike in Eubanks, counsel did not persist in

asking improper questions about the witness’s religion in an attempt to

discredit him; rather, this was simply one isolated reference in a lengthy

transcript.   After a review of the record, we are not convinced this single

reference deprived Lawrence of a fair trial.        Counsel, therefore, was not

ineffective for failing to object to the prosecutor’s question.

      In his second issue, Lawrence argues that the PCRA court erred in failing

to grant Lawrence a new trial when his counsel “failed to request a voluntary

manslaughter charge when the shooting was the immediate result of and was

in fact during a heated argument.” Appellant’s Brief, at 9. Lawrence is not

entitled to relief on this claim.




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      The Pennsylvania Crimes Code provides for a conviction of voluntary

manslaughter under the following two circumstances: (1) where the defendant

acted under a sudden and intense passion resulting from a serious

provocation; or, alternatively, (2) where the defendant knowingly and

intentionally killed an individual under the unreasonable belief that the killing

was justified. 18 Pa.C.S. § 2503(a), (b). See Commonwealth v. Busanet,

54 A.3d 35, 52 n.11 (Pa. 2012).

      Here, Lawrence has not asserted that he intentionally killed the victim

under the unreasonable belief that the killing was justified. Busanet, supra.

Thus, the question is whether Lawrence was “acting under a sudden and

intense passion” resulting from serious provocation by the victim. 18 Pa.C.S.

§ 2503(a).    The test for provocation is “whether a reasonable [person]

confronted by the same series of events, would become impassioned to the

extent that his mind would be incapable of cool reflection.” Commonwealth

v. Kim, 888 A.2d 847, 853 (Pa. Super. 2005) (citing Commonwealth v.

Galloway, 485 A.2d 776, 783 (Pa. Super. 1984)).              “[O]nly where an

instruction is requested and only if the evidence supports ‘heat of passion’

voluntary     manslaughter,     is   an     instruction   thereon     required.”

Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996).

      To receive a “heat of passion” voluntary manslaughter instruction, the

petitioner must demonstrate that there was evidence in the record that

supports such an instruction, specifically, evidence that demonstrates that at

the time of the killing, the petitioner acted under a sudden and intense passion

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resulting from serious provocation from the victim. Commonwealth v.

Sanchez, 82 A.3d 943, 979 (Pa. 2013). The ultimate test to determine

whether the provocation by the victim was sufficient is, “whether a reasonable

man who was confronted with the provoking events would became

impassioned to the extent that his mind was incapable of cool reflection.”

Commonwealth v. Hutchinson, 25 A.3d 277, 314–15 (Pa. 2011) (quoting

Commonwealth v. Thornton, 431 A.2d 248, 252 (Pa. 1981)).              Neither

words of provocation nor slight assault are sufficient to reduce murder to

manslaughter.     Commonwealth v. Sheppard, 648 A.2d 563, 566 (Pa.

Super. 1994).

      Here, there is nothing in the record to support a finding that a

reasonable person “confronted by the same series of events, would become

impassioned to the extent that his mind would be incapable of cool

reflection.”   Kim, supra.    In order to support a charge of voluntary

manslaughter, the victim must have provoked the passion. Here, Lawrence

was the party attempting to provoke a response from the victim, as he

repeatedly asked the victim whether the issue was “squashed” or “beef.” N.T.

Trial, 8/5/15, at 61. The victim did not answer Lawrence. Lawrence then

asked the victim again and the victim responded by spitting on him and telling

Lawrence to “suck his d**k.” Id. at 61. Lawrence again asked the victim if

the issue was “beef” or “squashed” and the victim was silent. Lawrence then

asked the victim whether he wanted to fight, and the victim responded that


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he does not fight. Lawrence responded, “what you think you can’t die? . . . I

just want to know if it’s beef or if it’s squashed.” Id. at 62-63. The victim

responded with “it’s whatever.” Id. at 63. Lawrence then pulled out a gun

and began firing, killing the victim.

      The mere fact that the victim made an obscene retort to Lawrence’s

persistent questioning is insufficient to warrant a “heat of passion” instruction

under the law. See Sheppard, supra at 566 (serious provocation not

established when victim struck defendant’s brother and arguments ensued

between defendant and victim); Commonwealth v. Cartagena, 416 A.2d

560, 563 (Pa. Super. 1979) (punch by victim was not legally adequate

provocation for defendant to stab victim). There is no evidence in the record

to suggest that, at the time of the murder, Lawrence had been “so provoked

by the victim as to be compelled by passion beyond the control of his reason.”

Commonwealth v. Hutchinson, 25 A.3d 277, 314 (Pa. 2011).                Counsel,

therefore, was not ineffective for failing to request the instruction. Bracey,

supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2019

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