J-S51012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

BRANDON LAMONT MCPHERSON,

                        Appellant                  No. 2224 MDA 2013


              Appeal from the PCRA Order December 11, 2013
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0001609-2007


BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 21, 2014

     Brandon Lamont McPherson appeals from the December 11, 2013

order denying him PCRA relief. We affirm.

     On November 14, 2008, Appellant was found guilty by a jury of

attempted murder, aggravated assault, and two counts each of conspiracy

and reckless endangerment. While the trial transcript is not contained in the

certified record, we outline the facts of the crimes as articulated during



        In the early evening hours of January 4, 2007, Appellant
     McPherson and Angel Serrano decided to shoot rival drug
     dealers. That day McPherson and Serrano had met at Brent


     respectively, remained at the house while McPherson and
     Serrano went to buy marijuana.
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        [McPherson and Serrano] returned to the house angry and
     upset because rival drug dealers had kicked them off the block
     where McPherson and Serrano tried to buy the drugs. They
     armed themselves with guns, left the house again, and went to
     the corner of Beaver Street and West Andrew Street. McPherson
     and Serrano opened fire on the group of males from earlier. At

     two cousins were across the street walking home from the store.
     A bullet struck B.P. in the back. An ambulance was called to the
     scene.

         If not for the extreme efforts of the EMT at the scene, and
     doctors and medical staff at the hospital, B.P. would have died.
     The EMT kept her alive en route to the hospital by sticking his
     finger in the bullet hole to stop the bleeding. Bone fragments
     and travel of the bullet caused injuries to her ribs, lungs, and
     heart. At the hospital, doctors had to shock her heart to get it
     beating again.

         McPherson and Serrano fled the shooting scene.     They ran

     cab. McPherson, Serrano, Murray, Owens, and Punchos took a
     taxi to a motel where they stayed the night. McPherson and
     Serrano bragged and boasted about shooting at the alleged drug
     dealers in front of the others. McPherson, Serrano, Owens and

     McPherson hid out. Upon returning to Lancaster, Serrano sought
     money from his step-father and girlfriend. Serrano left for
     Florida; he stayed with another girlfriend, Nicole Fedorek. While
     there, Serrano manipulated various women in an effort to obtain
     money and build an alibi.

         On January 29, 2007, McPherson was detained in Columbia
     Borough and subsequently transported to the City of Lancaster
     Police Department pursuant to an open arrest warrant. A silver
     revolver connected to the B.P. shooting was recovered on
     January 30, 2007. Serrano was arrested in Florida on February
     14, 2007.

Commonwealth v. McPherson, 4 A.3d 206 (Pa.Super. 2010) (unpublished

memorandum at 1-3) (quoting Trial Court Opinion, 7/2/09, at 1-2).

Following his convictions, Appellant was sentenced to twenty-five to sixty


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years incarceration. On May 26, 2010, we affirmed. Id. On November 10,

2010, Appellant filed a timely PCRA petition seeking reinstatement of his

right to file a petition for allowance of appeal. He was granted the requested

relief, and our Supreme Court denied review on October 25, 2011.

      Appellant filed his present PCRA petition on May 2, 2012. Counsel was

appointed and filed an amended petition, which averred that trial counsel

was ineffective for failing to seek a corrupt or polluted source jury instruction

as to Commonwealth witnesses Sheena Owens and Brent Murray.                 This

matter proceeded to an evidentiary hearing on October 2, 2013, where trial

counsel, Roger C. Renteria, Esquire testified.     Mr. Renteria did not recall

whether he had asked for a corrupt source charge for the two witnesses. He

indicated that, in retrospect, it was unlikely that he had requested such an



due to the fact that . . . the Commonwealth had not produced any evidence



crime. N.T. PCRA Hearing, 10/2/13, at 7-8. Mr. Renteria also noted that he

              -

have been inconsistent with that defense. Id. at 8.



court concluded that trial counsel was not ineffective for failing to request

the charge in question since the instruction was not warranted based upon

the trial evidence and since trial counsel had a strategic basis for his




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          [I.] Did trial counsel provide ineffective assistance of counsel
      to a degree that so undermined the truth determining process
      that no reliable adjudication of guilt or innocence could have
      taken placed by failing to request a corrupt and polluted source
      jury instruction prejudicing the defendant [a]ffecting the
      outcome of his trial.

          s brief at 2.

      Our standard and scope of review in the present context is as follows:


      scope of review is limited to determining whether the PCRA
      court's findings are supported by the record and without legal
               Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa.

      PCRA court and the evidence of record, viewed in the light most
      favorable to the prevailing party at the
      Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 131


      Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259
      (2011) (citation                                 de
      novo
      Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa.Super. 2014).



which is subject to the following principles:

      [C]ounsel is presumed effective, and the burden of proving
      ineffectiveness rests on [the defendant]. The test for counsel
      ineffectiveness is, in substance, the same under both the
      Pennsylvania and federal Constitutions: it is the performance
      and prejudice test set forth in [Strickland v. Washington, 466
      U.S. 668 (1984).       In Pennsylvania, we have divided the
      performance element into two sub-parts dealing with arguable
      merit and reasonable strategy. Thus, to prove his trial counsel
      was ineffective, [an appellant] must demonstrate that: (1) his
      underlying claim is of arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) the petitioner
      suffered prejudice as a result.

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Commonwealth v. Burno, 2014 WL 2722758, 12 (Pa. 2014) (citations

                 e the [PCRA] petitioner fails to meet any aspect of this test,

                  Commonwealth v. Henkel, 90 A.3d 16, 30 (Pa.Super.

2014).



polluted source instruction as to Commonwe

source instruction advises the jury that if it finds that a certain witness who

testified against the defendant was an accomplice of the defendant in a

crime for which he is being tried, then the jury should deem that witness a



          Commonwealth v. Collins, 957 A.2d 237, 262 (Pa. 2008). Such



evidence to present a jury question with respect to whether the witness is an

              Id.; see also Commonwealth v. Hanible, 30 A.3d 426 (Pa.

2011).

      As noted by trial counsel and the PCRA court in this case, there was

insufficient evidence to support a finding that either Owens or Murray were

accomplices to Appellant and Serrano.      The definition of an accomplice is

contained in 18 Pa.C.S. § 306(c), which states in pertinent part that



facilitating the commission of t




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Pa.C.S. § 306(c)(1)(i-                                     ce liability requires

evidence that the person: (1) intended to aid or promote the substantive

offense; and (2) actively participated in that offense by soliciting, aiding, or

                                Collins, supra at 263.

      Instantly, there was insufficient proof that either witness had such an

involvement in the crime. They did not participate in the initial altercation

and were merely waiting for Appellant and Serrano when the latter two men

attempted to buy drugs. Neither witness encouraged or participated in the

activities of Appellant and Serrano, and there was no proof that they

solicited, aided, or agreed to aid those two actors in shooting at the

recalcitrant drug peddlers. Indeed, there is no indication that the witnesses

even had advance knowledge that Appellant and Serrano would start

randomly shooting at the group of men. They fled with the two shooters,

and one witness hailed a taxicab, as instructed by the perpetrators. These

type of activities are insufficient to warrant any finding that they were



an accomplice . . . nor is one who merely helps an offender try to escape

                                             Collins, supra at 263.     Hence,

Owens and Murray were not accomplices.

      Additionally, trial counsel articulated that he had a reasonable basis for

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defense.     By requesting a corrupt source instruction, counsel would have

been admitting that there was advance planning of the shooting among the




had a strategic basis for not seeking it. See Commonwealth v. Karabin,

426 A.2d 91 (Pa. 1981), and Commonwealth v. Johnson, 437 A.2d 1175

(Pa. 1981), holding that trial counsel had a reasonable strategy for not

asking for the corrupt and polluted source charge where the instruction was

inconsiste

crimes in question.



error, we must affirm.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




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