J-S32028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

TYRELL JAMAR JONES

                            Appellant                     No. 2813 EDA 2015


                  Appeal from the PCRA Order August 11, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004523-2007

BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                                   FILED JUNE 09, 2016

        Appellant, Tyrell Jamar Jones, appeals nunc pro tunc from the August

11, 2015 order denying his first petition for relief under the Post Conviction

Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        We summarize the facts and procedural history of this case as follows.

On January 14, 2010, a jury convicted Appellant of second-degree murder,

third-degree murder, robbery, and criminal conspiracy for his role in a July

8, 2007 murder-robbery.1 PCRA Court Opinion, 8/7/15, at 1.2 On April 5,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S.A.        §§    2502(b),     2502(c),   3701(a)(1),   and   903(a)(1),
respectively.
2
  We note that the PCRA court’s opinion does not contain pagination. For
ease of review, we have assigned each page a corresponding page number.
J-S32028-16


2010, the trial court imposed an aggregate judgment of sentence of life

imprisonment.3       On November 2, 2011, this Court affirmed Appellant’s

convictions, and our Supreme Court denied Appellant’s petition for allowance

of appeal on April 26, 2013. See Commonwealth v. Jones, 38 A.3d 911

(Pa. Super. 2011) (unpublished memorandum), appeal denied, 67 A.3d 794

(Pa. 2013). Appellant did not file a petition for a writ of certiorari with the

United States Supreme Court.

       On July 2, 2014, Appellant timely filed his first, pro se PCRA petition.4

Counsel was appointed, and on April 7, 2015, counsel filed an amended

PCRA petition.       On May 28, 2015, the PCRA court held an evidentiary

hearing. Thereafter, on August 11, 2015, the PCRA court denied the PCRA

petition. The PCRA court served notice of its August 11, 2015 order on the

district attorney and Appellant, but did not give notice to Appellant’s

counsel. On September 17, 2015, with the Commonwealth’s stipulation, the

PCRA court granted Appellant permission to file a notice of appeal nunc pro


____________________________________________


3
  Specifically, the trial court sentenced Appellant to life in prison on    the
second-degree murder conviction, five to ten years’ imprisonment             for
robbery, and five to ten years’ for criminal conspiracy. The trial court    did
not impose a sentence for the third-degree murder conviction. All           the
sentences are concurrent.
4
 Appellant’s sentence became final on July 25, 2013, when his time to file a
petition for a writ of certiorari expired.   See generally 42 Pa.C.S.A.
§ 9545(b)(3); U.S. S. Ct. R. 13(1).




                                           -2-
J-S32028-16


tunc because it did not provide Appellant’s counsel with notice. 5 That same

day, Appellant filed a timely notice of appeal nunc pro tunc.6

       On appeal, Appellant presents the following two issues for our review.

              1. [Whether] [t]rial counsel was ineffective for failing
                 to object to the trial judge’s charge to the jury on
                 the defense of duress which was erroneous
                 because the judge told the jury that “if the
                 evidence matches up with the elements of the
                 offense … you should find him guilty … If they do
                 line[ ]up and you find duress, he again, is
                 guilty[?]

              2. Trial counsel was ineffective for failing to object to
                 an incorrect response by the trial judge to a
                 question by the jury asking to define duress,
                 because the judge told them that if duress is
                 found the jury may find [Appellant] not guilty.
____________________________________________


5
  “Generally, an appellate court cannot extend the time for filing an appeal.”
Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007),
appeal denied, 960 A.2d 838 (Pa. 2008). “Nonetheless, this general rule
does not affect the power of the courts to grant [nunc pro tunc] relief in the
case of fraud or breakdown in the processes of the court.”             Id.   A
“breakdown” can occur when the trial court departs from the obligations
specified in the Pennsylvania Rules of Criminal Procedure. Id. Under
Pennsylvania Rule of Criminal Procedure 908, the PCRA court must serve an
order denying a PCRA petition as specified in Rule 114. Pa.R.Crim.P.
908(D)(1). Rule 114 provides that “[a] copy of any order … promptly shall
be served on each party’s attorney[.]” Id. at 114(B)(1). Here, the PCRA
court explained that it granted Appellant the right to file a notice of appeal
nunc pro tunc because it did not serve Appellant’s counsel with the order
denying the PCRA petition. PCRA Court Opinion, 11/13/15, at 1. The record
confirms that the PCRA court did not serve a copy of the order denying
Appellant’s PCRA petition on Appellant’s counsel. Accordingly, a nunc pro
tunc appeal is warranted due to the breakdown in the process of the court,
and we will address the merits of Appellant’s issues on appeal.
6
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                           -3-
J-S32028-16


               [Whether] [t]he judge should have instructed the
               jury that if duress is found, then they must find
               [Appellant] not guilty[?]

Appellant’s Brief at 2 (emphasis in original).

      We review an appeal from the denial of PCRA relief according to the

following principles.

            Our standard of review of the denial of a PCRA
            petition is limited to examining whether the court’s
            rulings are supported by the evidence of record and
            free of legal error. This Court treats the findings of
            the PCRA court with deference if the record supports
            those findings. It is an appellant’s burden to
            persuade this Court that the PCRA court erred and
            that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

            [Our] scope of review is limited to the findings of the
            PCRA court and the evidence of record, viewed in the
            light most favorable to the prevailing party at the
            PCRA court level.      The PCRA court’s credibility
            determinations, when supported by the record, are
            binding on this Court. However, this Court applies a
            de novo standard of review to the PCRA court’s legal
            conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted,

105 A.3d 658 (Pa. 2014). Further, in order to be eligible for PCRA relief, a

petitioner must plead and prove by a preponderance of the evidence that his

conviction or sentence arose from one or more of the errors listed at

Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). These errors


                                      -4-
J-S32028-16


include ineffectiveness of counsel. Id. § 9543(a)(2)(ii). The issues raised in

a PCRA petition must be neither previously litigated nor waived.            Id.

§ 9543(a)(3).

      In his PCRA petition, Appellant alleges ineffective assistance of trial

counsel in not objecting to two portions of the trial court’s jury instructions.

When reviewing a claim of ineffectiveness, we apply the following test, first

articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d

973 (Pa. 1987).

            [C]ourts presume that counsel was effective, and
            place upon the appellant the burden of proving
            otherwise. Counsel cannot be found ineffective for
            failure to assert a baseless claim.

                   To succeed on a claim that counsel was
            ineffective, Appellant must demonstrate that: (1) the
            claim is of arguable merit; (2) counsel had no
            reasonable strategic basis for his or her action or
            inaction; and (3) counsel’s ineffectiveness prejudiced
            him.

                                       …

                 [T]o demonstrate prejudice, appellant must
            show there is a reasonable probability that, but for
            counsel’s error, the outcome of the proceeding would
            have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)

(citations and internal quotation marks omitted).     “Failure to establish any

prong of the test will defeat an ineffectiveness claim.” Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011).




                                     -5-
J-S32028-16


      Appellant asserts that his trial counsel was ineffective for failing to

object to two jury instructions. Our standard of review of a trial court’s jury

instructions is as follows.

            [T]his Court will look to the instructions as a whole,
            and not simply isolated portions, to determine if the
            instructions were improper. We further note that []
            a trial court has broad discretion in phrasing its
            instructions, and may choose its own wording so
            long as the law is clearly, adequately, and accurately
            presented to the jury for its consideration. Only
            where there is an abuse of discretion or an
            inaccurate statement of the law is there reversible
            error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014). Moreover, “[t]he

law presumes that the jury will follow the instructions of the court.”

Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001) (citation

omitted), cert. denied, Brown v. Pennsylvania, 537 U.S. 1187 (2003).

      In Appellant’s first issue, he contends counsel was ineffective for

failing to object to the trial court’s erroneous instruction to the jury on his

duress defense. Appellant’s Brief at 6. Specifically, Appellant contends that

the trial court’s closing instruction on duress was a misstatement of the law.

Id.   After giving all of its charges, including other duress instructions that

Appellant does not challenge, the trial court explained, “[i]f the evidence

matches up with the elements of the offense, the defendant is no longer

presumed innocent, you should find him guilty. If they do not line up, then




                                     -6-
J-S32028-16


he must be found not guilty.     If they do line up and you find duress, he,

again, is guilty.” N.T., 1/14/10 (vol. 1), at 103.

      Appellant asserts that this instruction was an error of law because

duress is a complete defense. Appellant’s Brief at 6. Thus, the trial court

should have instructed the jury that if it found duress, it must find Appellant

not guilty.     Id.   Further, Appellant contends that the instruction was

inconsistent with the other duress instructions and “could reasonably have

caused confusion by the jury when examining the duress defense which was

critical to [] Appellant’s overall defense strategy.” Id. at 7.

      As our standard of review directs, we must look at the trial court’s

instructions on duress as a whole.     Antidormi, supra.          Before giving the

instruction that Appellant complains of, the trial court provided numerous

charges to the jury that duress was a complete defense to the crimes. The

trial court prefaced its instructions on the elements of the crimes by stating,

“I’m going to talk about the general legal principles but have constant in

your mind that the defendant’s position is that the defense of duress is there

and he is not responsible for any of these crimes which I’ll discuss with you.”

N.T., 1/14/10 (vol. 1), at 75-76; see also id. at 79-80, 82-83. Further, the

trial court provided a detailed charge on duress, in part, as follows.

                    Now, the defendant does not deny that he was
              there. And the defendant says yes, I was there. But
              the defendant says to you I was there only as a
              result of the threat that Mr. Bermudez made to me
              and to my family. So what you’re looking for in the
              law is responsibility of a person who was

                                      -7-
J-S32028-16


            intentionally, knowingly or recklessly doing some
            kind of activity because obviously, we’re responsible
            for our activity.

                  Conversely, if someone is compelled to do
            something that they would not have otherwise done
            and they didn’t have any means to avoid that
            compulsion, then the law is not going to hold them
            criminally responsible because they are not acting of
            their own will, they are acting under duress. So
            there are certain things that have to be established
            here to accomplish the defense of duress.

                   Duress is a defense to all of those charges. If
            a defendant committed the acts otherwise instituting
            [sic] the crime but did so under duress, he may not
            be found guilty of that crime. So you can find that
            all of those crimes occurred. But if you find that he
            acted under duress even though you find the
            offenses have been proven beyond a reasonable
            doubt, if he acted under duress he is not responsible
            for those crimes.

                                       …

            So you have to go back and ask yourself the defense
            has been raised of duress, has the Commonwealth
            disproven that defense beyond a reasonable doubt.
            If they have disproven it and you find the defendant
            guilty of the other offenses beyond a reasonable
            doubt, you should go ahead and convict him. If you
            find all of the crimes have been committed but you
            find that the defendant was only involved as a result
            of duress then, of course, you can’t find him guilty.
            You must find him not guilty.

Id. at 91-92, 96. After a sidebar, the trial court restated its instructions and

again reminded the jury that if “[t]he defendant says he acted under duress,

[he is] not liable.   You can find him [not liable of] all of those offenses

committed [] because he acted under duress. And that is a person under his


                                     -8-
J-S32028-16


circumstances given the information available, did he act reasonably or not.

That is the duress.”         Id. at 98.        The trial court concluded with the

summation that, that “[i]f the evidence matches up with the elements of the

offense, the defendant is no longer presumed innocent, you should find him

guilty. If they do not line up, then he must be found not guilty. If they do

line up and you find duress, he, again, is guilty.” Id. at 103.

       We agree with Appellant that the final sentence is a misstatement of

the law.    The trial court should have said “not guilty” instead of “guilty.” 7

However, we cannot review this one statement in isolation from the rest of

the jury instructions.         See Antidormi, supra.         When we view the

instructions as a whole, we conclude that this one misstatement is not

prejudicial because the trial court repeatedly and extensively explained that

duress was a defense to all of the crimes charged. See Commonwealth v.

Trill, 543     A.2d 1106, 1114 (Pa.            Super. 1988) (concluding that 2

misstatements of the law in over 31 pages of jury charges are not prejudicial

because the trial court correctly recited the law in other portions of the
____________________________________________


7
  In its opinion, the PCRA judge, who was also the trial judge, maintains that
he actually said “not guilty” to the jury. PCRA Court Opinion, 8/7/15, at 2.
Similarly, at the PCRA hearing, trial counsel testified that he did not have an
independent recollection of the duress instructions, but he would have
objected if he heard the trial court state that Appellant was guilty if the jury
found duress. N.T., 5/28/15, at 18. However, the parties stipulated that if
the court reporter had testified at the PCRA hearing, she would have said
that the transcript accurately reflected her notes taken during trial. Id. at 5.
Given our disposition of Appellant’s first issue, we need not address whether
the transcript accurately reflects the trial court’s instructions.



                                           -9-
J-S32028-16


colloquy and “[i]t would be fatuous to require a trial judge to perform such a

lengthy charge flawlessly on each attempt[]”), appeal denied, 562 A.2d 826

(Pa. 1989).

      Even if we were to agree that the misstatement was somehow more

significant because it was the last statement before the jury began

deliberating, the trial court later cured its mistake. During its deliberations,

the jury asked the trial court for a written version of the charges.      N.T.,

1/14/10 (vol. 2), at 4.    The trial court explained that it could not provide

written charges, but it orally re-issued its charges.    Id. at 4-5.   The trial

court explained duress as follows.

              Duress is a defense to a criminal charge or charges
              and the defense says it’s a defense to each and
              every one of those charges. If a defendant commits
              the act otherwise constituting the crimes that I just
              discussed but did so under duress, he may not be
              found guilty of those crimes or any one of those
              crimes and it’s a duress analysis as to each one of
              the offenses.

                                       …

                   If you find that the defense of duress has been
              properly raised, then it is the Commonwealth’s
              burden to disprove duress by proof beyond a
              reasonable doubt.

Id. at 14, 16-17. This instruction cured the trial court’s earlier misstatement

by clarifying that if the jury found Appellant committed the offenses under

duress, Appellant was not guilty. Appellant did not object to the language of




                                     - 10 -
J-S32028-16


this instruction. As the jury is presumed to follow this instruction, we find

Appellant’s first issue on appeal lacks merit. See Brown, supra.

       In his second issue, Appellant contends that trial counsel was

ineffective for failing to object to the trial court’s abovementioned duress

instruction, given in response to the jury’s question, which stated that if the

jury found duress, Appellant “may not be found guilty.”8 Appellant’s Brief at

8. Appellant asserts that the proper statement of the law is that if the jury

found duress, Appellant “must” not be found guilty. Id. However, the trial

court’s language mirrored the language of the Pennsylvania Suggested

Standard Criminal Jury Instructions in effect at the time of the trial. We will

not parse out the phrasing of the jury instruction, which comported with the

suggested standard instruction. See Commonwealth v. Towles, 106 A.3d

591, 607 n.9 (Pa. 2014) (declining to “critique the subtleties of the language

in the Pennsylvania Suggested Standard Jury Instructions” in the absence of

a claim that those instructions violate the appellant’s constitutional or other

legal rights), cert. denied, Towles v. Pennsylvania, 135 S. Ct. 1494

(2015); Trill, supra (finding the “distinction between ‘may’ and ‘will’ … to be

specious[]”). Instead, viewing the instructions as a whole, we conclude that

they adequately informed the jury that if it found duress, it should find
____________________________________________


8
  We note that in his Rule 1925(b) concise statement, Appellant did not
specifically frame this issue as an ineffectiveness of counsel issue. However,
because his PCRA petition and appellate brief adequately argue it as an
ineffectiveness issue, we will address it as such.



                                          - 11 -
J-S32028-16


Appellant not guilty.     See Antidormi, supra.    Therefore, we conclude

Appellant’s second issue on appeal is meritless.

      Based on the foregoing, we conclude that Appellant’s ineffectiveness

claims lack arguable merit. See Michaud, supra. Accordingly, Appellant is

not entitled to PCRA relief. See Birdsong, supra. The PCRA court’s rulings

are supported by the evidence of record and free of legal error.      See

Feliciano, supra. Therefore, we affirm the PCRA court’s August 11, 2015

order denying Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2016




                                    - 12 -
