J-A21010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DOUGLAS EUGENE STEPHENSON,

                            Appellant                 No. 819 WDA 2016


                Appeal from the PCRA Order Entered May 9, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016742-2009


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 20, 2017

       Appellant, Douglas Eugene Stephenson, appeals from the post-

conviction court’s May 9, 2016 order denying his petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.            After careful

review, we affirm.

       Briefly, a jury convicted Appellant of second-degree murder, robbery,

and conspiracy to commit robbery, based on evidence that he and a cohort,

Travis Hawkins, attempted to rob a jitney driver, during which Hawkins shot

and killed the driver.1           Appellant was sentenced to a term of life

incarceration, without the possibility of parole, for his murder conviction, and

a consecutive term of 72 to 144 months’ incarceration for his conspiracy
____________________________________________


1For a detailed recitation of the facts of Appellant’s case, see PCRA Court
Opinion (PCO), 1/19/17, at 2-5.
J-A21010-17



offense. This Court affirmed Appellant’s judgment of sentence on August 6,

2013, and our Supreme Court denied his subsequent petition for allowance

of appeal.    Commonwealth v. Stephenson, 83 A.3d 1058 (Pa. Super.

2013) (unpublished memorandum), appeal denied, 81 A.3d 77 (Pa. 2013).

      On April 2, 2014, [Appellant] filed the pro se PCRA petition that

underlies the present appeal.      Counsel was appointed and an amended

petition was filed on Appellant’s behalf on September 9, 2015. Following a

PCRA hearing on May 9, 2016, the court issued an order denying Appellant’s

petition.    Appellant filed a timely notice of appeal, and he also timely

complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement.

Thereafter, the court filed a Rule 1925(a) opinion addressing the following

three claims that Appellant raises herein:

      I.     Whether trial counsel gave ineffective assistance for failing
             to request a full and proper instruction advising that the
             jury cannot use certain statements made by witnesses as
             substantive evidence but they are only to be used as
             impeachment?

      II.    Whether trial counsel gave ineffective assistance for failing
             to object to written instructions being sent to the jury, in
             lieu of oral instructions, which violated Pa.R.Crim.P.
             646(C)(4)?

      III.   Whether the trial court gave an illegal sentence [on]
             conspiracy to commit robbery when, under the facts of this
             case, criminal conspiracy merged for purposes of
             sentencing with the crime of second-degree murder?

Appellant’s Brief at 5.

      We have reviewed the certified record, the briefs of the parties, and

the applicable law. We have also reviewed the Rule 1925(a) opinion of The

                                      -2-
J-A21010-17



Honorable Randal B. Todd of the Court of Common Pleas of Allegheny

County.    We conclude that Judge Todd’s well-reasoned decision accurately

disposes of the three issues raised by Appellant herein.2 See PCO at 5-11

(rejecting Appellant’s first issue, as he failed to demonstrate that he was

prejudiced by trial counsel’s not objecting to the jury instruction); id. at 11-

12 (finding no merit to Appellant’s second issue, as he failed to establish

arguable merit in, or resulting prejudice from, his claim that trial counsel

should have objected to the court’s sending a note to the jury in response to

a question); id. at 14-15 (rejecting Appellant’s contention that his sentence

is illegal because his conspiracy for robbery conviction should have merged

for   sentencing     purposes     with    his    second-degree   murder   offense).3
____________________________________________


2  We note that Appellant presented four issues in his Rule 1925(b)
statement, but he has abandoned one of those claims in his brief to this
Court. Thus, we do not rely on the portion of Judge Todd’s decision which
addresses Appellant’s abandoned issue. See PCO at 12-14.

3 In response to Appellant’s illegal sentencing claim, we add one brief note.
Appellant’s argument rests on the premise that the felony offense underlying
his second-degree murder conviction was conspiracy to commit robbery
and, therefore, his sentence for conspiracy must merge with his murder
sentence. This argument is meritless for several reasons, but two are worth
mentioning. First, conspiracy to commit robbery is not a felony offense that
can underlie a second-degree murder conviction.          See 18 Pa.C.S. §§
2502(b) (“A criminal homicide constitutes murder of the second degree
when it is committed while [the] defendant was engaged as a principal or an
accomplice in the perpetration of a felony.”); 2502(d) (defining “Perpetration
of a felony” as: “The act of the defendant engaging in or being an
accomplice in the commission of, or an attempt to commit, or flight after
committing, or attempting to commit robbery, rape, or deviate sexual
intercourse by force or threat of force, arson, burglary or kidnapping.”).
Second, Appellant was convicted of robbery in this case, and that offense
(Footnote Continued Next Page)


                                           -3-
J-A21010-17



Accordingly, we adopt Judge Todd’s rationale as our own, and affirm the

order denying Appellant’s PCRA petition on that basis.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017




(Footnote Continued) _______________________

merged with his murder conviction for sentencing purposes. See Order of
Sentence, 11/7/11. Thus, Appellant’s argument that his conspiracy to
commit robbery conviction should also merge is meritless.




                                          -4-
                                                             Circulated 11/01/2017 12:35 PM




     IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA


COMMONWEALTH OF                       CRIMINAL DIVISION
PENNSYLVANIA                                                        44,
                                      NO:      CC200916742
v.
                                      Appeal
DOUGLAS EUGENE STEPHENSON,
                                      OPINION
       Petitioner.

                                      JUDGE RANDAL B. TODD


                                      COPIES SENT TO:

                                      Stephen A. Zappala, Jr.
                                      District Attorney

                                               By

                                      Michael Streily, Esquire
                                      Assistant District Attorney
                                      401 Courthouse
                                      436 Grant Street
                                      Pittsburgh, PA 15219


                                      Counsel of Record for Petitioner:

                                      Thomas N. Farrell, Esquire
                                      Farrell & Associates
                                      100 Ross Street, Suite 1
                                      Pittsburgh, PA 15219

                                     Douglas Eugene Stephenson, Petitioner
                                     #KG4514
                                     SCI Camp Hill
                                     P.O. Box 200
                                     Camp Hill, PA 17001-8837
     IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA


COMMONWEALTH OF                                                CRIMINAL DIVISION
PENNSYLVANIA

v.                                                             NO:     CC200916742

DOUGLAS EUGENE STEPHENSON,

        Petitioner.


TODD, J.

January 19, 2017

                                              OPINION

        This is an appeal from an order entered on May 9, 2016 dismissing Petitioner's PCRA

Petition after a hearing on May 3, 2016. On June 8, 2016 Petitioner filed    a   timely Notice of

Appeal. On June 20, 2016     a   1925(b) Order was entered ordering Petitioner to file a Concise

Statement of Matters Complained of on Appeal. On July 11, 2016 Petitioner filed an Extension

for Statement of Errors Complained of on Appeal which was granted by Order of July 12, 2016.

On July 14, 2016 Petitioner filed his Statement of Errors Complained of on Appeal setting forth

the following claims:

                Whether trial counsel gave ineffective assistance for failing to request a
                full and proper instruction advising that the jury cannot use certain
                statements made by witnesses as substantive evidence but they are only to
                be used as impeachment?

        2.      Whether trial counsel gave ineffective assistance for failing to object to
                written instructions being sent to the jury, in lieu of oral instructions,
                which violated Pa.R.Crim.P. 646(c)(4)?




                                                    1
       3.     Whether trial counsel gave ineffective assistance when she permitted the
              Commonwealth to present the taped statement of Travis Hawkins, the Co -
              Defendant, in violation of the Confrontation Clauses of the Pennsylvania
              and United States Constitutions?

       4.     Whether the trial court gave an illegal sentence of conspiracy to commit
              robbery when, under the facts of this case, criminal conspiracy merged for
              purposes of sentencing with the crime of second degree murder?"

BACKGROUND:

       The factual background regarding this case was set forth in the 1925(b) opinion of

January 14, 2013 as follows:

       "This matter arises out the shooting death of James William, Jr., a 53 year old
       jitney driver in the Sheridan area of the City of Pittsburgh on July 7, 2009. The
       police received a call in the early morning hours of July 7, 2009 that a vehicle had
       run into a yard at the corner of Zephyr and Ashlyn Streets. (T., p 33)
       Investigating officers found a 1998 Jeep Cherokee crashed in the yard with an
       unresponsive black male slumped over in the driver's seat of the vehicle with the
       motor running, the vehicle in gear and the headlights on. (T., p. 38) Paramedics
       called to the scene at 1:55 a.m. found the victim had sustained a fatal gunshot
       wound to his chest. (T., p. 60) The area was secured and processed as a crime
       scene. The vehicle was examined for fingerprints and a partial left palm
       impression print was obtained from the passenger's side window. (T., p. 105) A
       search and canvas of the neighborhood was performed but there were no
       witnesses discovered and no additional evidence was recovered. (T., pp. 67-71)
                At trial the Commonwealth called Dr. Karl E. Williams of the Allegheny
       County Medical Examiner's Office who testified that the victim died of a gunshot
       would that entered the left side of his chest, went through the right side of the
       heart, the diaphragm, the liver and then exited the right side of his body. (T., p.
       77) Dr. Williams also testified that the victim did not have signs of any bruises,
       scratches, scrapes or contusions on his head or neck. (T., p. 83)
                The Commonwealth then called Detective Vonsal Boose who testified that
       on October 9, 2009, approximately 3 months after the shooting, Dana Williams
       was brought to the police station by a family member because she purportedly had
       information concerning the shooting. (T., 123) Detective Boose testified that
       Dana Williams described the events related to the shooting, gave a recorded
       statement and viewed a photo array. (T., p. 123) Based on information supplied
       by Dana Williams, two additional witnesses were developed, Dominique Clark



                                                2
and her sister, Taneshia Clark. Both Dominique Clark and Taneshia Clark gave
statements to the police on October 15, 2009. (T., pp. 190-193; 209-214)
        The Commonwealth called Dana Williams, Dominique Clark and
Taneshia Clark to testify at trial. Each of these witnesses testified, however, that
they could not recall the events of July 7, 2009. Dana Williams did identify
Defendant as "CK" and acknowledged that she had given a statement to the
police, but testified repeatedly that she did not recall the events on the night in
question. (T., pp. 130-132) Consequently, the tape recording of her interview
with police on October 9, 2009 was played for the jury. (T., p. 134) In her taped
statement she stated that co-defendant, Travis Hawkins, (a/k/a "Twerk")
approached the victim with a gun. She stated the following:

         "Twerk goes to the jitney driver's side, pulls the gun up to him. The
jitney driver tries to pull the gun out of his hand. Basically, they was like tossing
like." (Dana Williams Statement, October 9, 2009 - p. 5)
        "As Twerk and the jitney driver was like fighting, not really fighting but
he was trying to take the gun out of his hand." and "... that's when Twerk pulled
the trigger." (Dana Williams Statement, October 9, 2009 - p. 6)

         She further stated that she saw Defendant giving Hawkins the gun used in
 the robbery. She also stated that Defendant went to the passenger's side and
 "started punching the driver in the head. (Dana Williams Statement, October 9,
2009 - p. 6)
         Dana Williams' testimony from the preliminary hearing of November 13,
2009 was also read to the jury. (T., pp. 164-173) During this testimony Dana
Williams again testified that Defendant handed the gun to Hawkins and that
Hawkins then proceeded to the driver's side door of the vehicle at which time a
struggle occurred between Hawkins and the victim. She then testified that, "CK
walked to the passenger's side, opens the door, and I see him punching the jitney
driver in the head", at which point the gun went off. (T., p. 160)
         Dominique Clark also acknowledged that she was present on the night of
the shooting and that Defendant was present. (T., p. 181) However, she also
testified that she either could not recall what transpired or was told what to say
and what to write by the police. (T., pp. 182-187) Dominique Clark's statement
of October 15, 2009 was then played. She likewise stated that she saw a boy with
"his whole body is in the jitney driver's window." (Dominique Clark Statement,
October 15, 2009 - p. 4) She stated that while the victim was struggling with the
gunman, "CK and his friend were on the passenger's side." (Dominique Clark
Statement, October 15, 2009 - p. 5) She described that his arm was in the vehicle,
but his body wasn't. (Dominique Clark Statement, October 15, 2009 - p. 8)


                                         3
            The Commonwealth then called Taneshia Clark who also acknowledged
    being present and identified Hawkins as the shooter, but denied seeing Defendant
   or seeing Defendant near the passenger's side of the vehicle door and stated that
   she was told to write on the array that Defendant was on the passenger's side. (T.,
   pp. 199-202)
           The Commonwealth then called Detective James McGee who testified to
   his interview with Taneshia Clark and her description of the events that night.
   Detective McGee testified that Taneshia Clark stated:
            "At that time Mr. Hawkins, who she referred to as Twerk, and Mr.
   Stephenson, who she called CK, stated that those two left a group of people,
   walked down towards where the jitney was. Ms. Clark said that Mr. Hawkins
   approached the driver's side of the vehicle, and Mr. Stephenson went to the
   passenger's side of the vehicle. She said as soon as they reached the vehicle, she
   saw Mr. Hawkins reach in and was tussling with the driver. She said she believed
  they were tussling over a gun. She never saw it, but she thought it was a gun. At
  the same time she saw Mr. Stephenson leaning in the passenger's side of the
  window also tussling with the driver of the vehicle. She said as soon as they
  started doing that, she heard one gun shot." (T., pp. 210-211)
          The taped statement of Taneshia Clark was then played for the jury. (T.,
  p. 215) In her taped statement she, in fact, stated that she saw Hawkins and
  Defendant go to the car and that she saw Hawkins and the victim wrestling for the
  gun. She further said that while Hawkins and the jitney driver were "tussling"
  over the gun, that Defendant was on the passenger's side of the car and that his
 upper body was in the car when she heard the gun shot. (Taneshia Clark
 Statement, October 15, 2009 - pp. 5-6)
          After it was determined that co-defendant, Travis Hawkins, was invoking
 his Fifth Amendment rights and refusing testify, the Commonwealth played the
 taped statement of Travis Hawkins. (T., p. 175) In Hawkins' statement of
 October 16, 2009, after waiving his Miranda rights, Hawkins stated that:
          "I went up there and I pointed the gun to the driver, pointed the gun to
 him; said, Throw it off. He grabbed the gun, he started wrestling with the gun and
 me, I was scared. So, I tried to pull back with the gun with both hands and then it
 accidentally shot." (Travis Hawkins Statement, October 16, 2009 - p. 3)
         He also testified that he informed Defendant that he was about to rob the
victim and, although lie initially changed his mind, he ultimately decided to do it.
He testified he didn't know whether someone else was on the passenger's side of
the car because "I was too scared. I was too focused on trying to grab the gun."
(Travis Hawkins Statement, October 16, 2009 - p. 4) The Commonwealth also
called Detective John Godlewski, an expert in fingerprint analysis, who testified



                                         4
          that the partial left palm impression lifted from the passenger window of the
          deceased's vehicle belonged to Defendant. (T., p. 114)
                  The Commonwealth then called Detective James Smith who testified that
          Defendant had a tattoo on his right hand that said "CK All Day" and also testified
          that the phrase "throw it off' means the same as "stick em up". (T., p. 178)
          After being appropriately instructed, the jury found Defendant guilty as set forth above.

          The jury returned a verdict on August 3, 2011 finding Petitioner guilty of Second
                                                                                            Degree
  Murder, Robbery - Serious Bodily Injury and Criminal Conspiracy - Robbery.
                                                                             Petitioner was
  sentenced to   a   term of life imprisonment for Second Degree Murder and a consecutive term of 72

  to 144 months for Criminal Conspiracy      -   Robbery. On August 6, 2013 the Superior Court

  affirmed the judgment of sentence. On November 26, 2013 Petitioner's Petition for
                                                                                    Allowance
  of Appeal to the Supreme Court was denied, On April 2, 2014 Petitioner
                                                                         filed a pro se PCRA
 Petition and on May 13, 2014 counsel was appointed. Petitioner's Motions for
                                                                              Extension of
 Time to File an Amended PCRA Petition were granted and an Amended PCRA
                                                                        Petition was
 filed on September 9, 2015. The Commonwealth filed an Answer
                                                              to Amended PCRA Petition
 on February 4, 2016. On May 2, 2016 a hearing was held at which time trial
                                                                            counsel testified
 addressing the issues raised in the petition. On May 9, 2016 an order was
                                                                           entered dismissing the
 PCRA Petition and this appeal followed.


DISCUSSION:

        Petitioner's first issue is that trial counsel was ineffective for failing to request a jury

instruction that certain alleged inconsistent statements made by Dana
                                                                      Williams and Taneshia
Clark could only be used for impeachment purposes and not as substantive
                                                                         evidence. Petitioner
also argues that counsel was ineffective for failing to object to the following
                                                                                instruction that was
given to the jury:

       "Now, you have heard evidence that witnesses make statements on
                                                                          earlier
       occasions that were inconsistent with their present testimony. You may, if you

                                                    5
        choose, regard this evidence as proof of the truth of anything that the witness said
        in an earlier statement. You may also consider this evidence to help you judge the
        credibility and the weight of the testimony given by the witness at the time of
        trial." (T., pp. 284-285)

        Petitioner submits that the instruction fails to differentiate between those inconsistent

statements that might be used as substantive evidence and those that may only be used for

impeachment purposes. A prior inconsistent statement made by witness can only be used as

substantive evidence when the witness testifies, is subject to cross-examination about the

statement, and the prior inconsistent statement of the witness was either: 1) given under oath and

subject to the penalty of perjury at a trial, hearing or other proceeding or in   a   deposition; 2) is a

writing signed were adopted by the witness; or, 3) is a verbatim contemporaneous electronic

audio tape or videotape recording of an old statement. The law concerning the use of prior

inconsistent statements   is set   forth in Pa.R.E. 803.1 and Commonwealth   v.   Lively, 610 A.2d   7


(1992). Rule 803.1 provides:

        "The following statements are not excluded by the rule against hearsay if the
       declarant testifies and is subject to cross-examination about the prior statement:
       (1) Prior Inconsistent Statement of Declarant -Witness. A prior statement by a
       declarant -witness that is inconsistent with the declarant -witness's testimony and:
       (A) was given under oath subject to the penalty of perjury at a trial, hearing, or
       other proceeding, or in a deposition;
       (B) is a writing signed and adopted by the declarant; or
       (C) is a verbatim contemporaneous electronic, audiotaped, or videotaped
       recording of an oral statement." Pa.R.E. 803.1

In Commonwealth    v.   Lively, 610 A.2d 7 (1992) the Pennsylvania Supreme Court held:

       In an effort to ensure that only those hearsay declarations that are demonstrably
       reliable and trustworthy are considered as substantive evidence, we now hold that
       a prior inconsistent statement may be used as substantive evidence only when the
       statement is given under oath at a formal legal proceeding; or the statement had
       been reduced to a writing signed and adopted by the witness; or a statement that is
       a contemporaneous verbatim recording of the witness's statements.
       Commonwealth v. Lively, 610 A.2d 7, 10 (1992)




                                                   6
            Petitioner alleges that Detective Evans and Detective McGee testified concerning

 statements made by Dana Williams and Taneisha Clark that were neither recorded in any manner

 nor adopted by them and, therefore, the jury should have been instructed that those statements

 could be used for impeachment purposes only.' Specifically Petitioner alleges that Detective

 Evans testified that Dana Williams told him that she was afraid of retaliation when he testified as

 follows:


                      Did she give an explanation as to why she took three months before she
                      came forward?

        A.            Yes, she did. She said that there were threats involved.

                             Ms. Foreman: Objection; that is hearsay.

                             The Court:     I will sustain the objection. It is   hearsay.

        Q.        What did she tell you?

        A.        She told me she was afraid of retaliation.

        Q.        What did she tell you about the incident?" (T., pp. 145-146)

Detective Evans also testified on cross-examination:

        "Q.       So she came right into the police station and came up to you or another
                  detective and said, I have a bunch of information on a homicide?

       A.         I   believe she called first before she came and spoke to my boss.

       Q.        You said that prior to her testifying here today you saw her crying in the
                 hallway?

       A.        That's correct.

       Q.        Is that your testimony?

       A.        Yes.


  There is no dispute that prior inconsistent statements made by Williams, Taneshia Clark and
Dominique Clark contained in their preliminary hearing transcripts and tape recorded statements
that were presented at trial could be used as substantive evidence and the jury instruction set
forth above is correct as to those statements.

                                                      7
             Q.     You keep saying, well, she was afraid. You don't have any firsthand
                    knowledge that she was fearful? You don't know why she was crying?
                    You are just assuming she was afraid?

             A.     She told me she was afraid.

            Q.      She told you she was afraid?

            A.      Yes.

            Q.      She didn't tell you why?

            A.      She said she's afraid of retaliation." (T., pp. 151-152)

  The statements, which were allegedly inconsistent with her trial
                                                                   testimony, were neither recorded
  in any manner nor adopted by Williams.


            In addition, Detective James McGee, Detective McGee
                                                                testified concerning statements
 allegedly made by him by Taneshia Clark as follows:


            "Miss Clark said that Mr. Hawkins approached the driver side of the vehicle,
                                                                                            and
           Mr. Stephenson went to the passenger side of the vehicle. She said
                                                                                 as soon as they
           reach the vehicle, she saw Mr. Hawkins reach in and was
                                                                      tussling with the driver.
           She said she believed they were tussling over the gun. She never
                                                                               saw it, but she
           thought it was a gun. At the same time she saw Mr. Stephenson
                                                                             leaning in the
           passenger side of the window also tussling with the driver of the vehicle.
                                                                                       She said
           as soon as they started doing that, she heard one
                                                             gunshot." (T., pp. 210 -211)
           The statement attributed to Clark by Detective McGee that
                                                                     Petitioner was "also tussling
with the driver" was not recorded or otherwise adopted by
                                                          Clark. In fact, Clark's recorded
statement only stated that Petitioner was on the passenger side of the
                                                                       vehicle, the door was open,
and Petitioner was leaning in. She also stated that when
                                                         Hawkins and the victim were tussling
over the gun she did not see what Petitioner was doing.
                                                        (Taneshia Clark Recorded Statement,
pp. 5-6)


       After Taneshia Clark's taped statement was played for the jury,
                                                                       Detective McGee was
cross-examined as follows:

                                                   8
         "Q.    Now, you just sat here and listened to this taped statement, but prior to the
        statement being played, when you were asked by Mr. Stadtmiller what Taneshia
        said to you that day, you indicated that she said she saw my client tussling with
        the victim in the car, on the other side of the car?

        A.      That's correct.

        Q.      But you would agree with me that during the taped statement when you
        asked her: Okay, well, if Twerk and the jitney driver were tussling over the gun,
        what was CK doing? She responds: I don't know what he was doing. You would
        agree that she never mentioned that he was tussling in anyway?

        A.      On the tape she didn't." (T., p. 216)


        In order for Petitioner to be entitled to relief on the basis that trial counsel was

 ineffective, Petitioner must show by a preponderance of the evidence ineffective assistance of

counsel which, in the circumstances of the particular case, so undermined the truth -determining

process that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth     v.   Brady, 741 A.2d. 758, 763 (Pa. Super. 1999) This standard requires

Petitioner to show: (1) that the claim is of arguable merit; (2) that counsel had no reasonable,

objective basis for his actions; and (3) that, but for the errors or omissions of counsel, there is    a

reasonable probability that the outcome of the proceedings would have been different, that is,

that the petitioner was prejudiced by the alleged ineffectiveness of counsel. Comtnomvealth       v.


Kimball, 724 A.2d 326, 333 (1999). Counsel is presumed to be effective, however, and the

burden rests with the petitioner to overcome that presumption. Commonwealth v. Pierce, 527

A.2d 973, 975 (1987), Commonwealth       v.   Pirela, 580 A.2d 848, 850 (1990), appeal denied, 594

A.2d 658 (1991). If a petitioner fails to meet any one of these three prongs, then an evidentiary

hearing is not necessary. Commonwealth        v.   Wells, 578 A.2d 27, 32 (Pa. Super. 1990)

       At the PCRA hearing, when questioned about failing to object to the instruction counsel,

although indicating that she had cross-examined Detective McGee about his statement, testified


                                                      9
   that she could not recall if she had a strategy as it pertained to the court's instruction to
                                                                                                 the jury.
   (T., pp. 10-12)

           The Commonwealth concedes that the testimony of Detective Evans and Detective

  McGee as set forth above concerning alleged prior inconsistent statements of Dana Williams
                                                                                             and
  Taneshia Clark would not have been appropriately admitted as substantive evidence.
                                                                                     However,
  as argued by the Commonwealth, it is clear that Petitioner has failed
                                                                        to demonstrate any actual

  prejudice as a result of any failure by trial counsel to request an instruction from the
                                                                                           court that
  certain statements of Williams, Taneshia Clark and Dominique Clark could only
                                                                                be considered
  for impeachment purposes. An examination of the prior statements that
                                                                        could properly be
  considered as substantive testimony indicate that Petitioner approached the
                                                                              passenger side of the
 vehicle and was either striking or hitting the victim. Specifically, Dana
                                                                           Williams testified that
 Petitioner went to the passenger side of the vehicle, opened the door and started
                                                                                   punching the
 jitney driver in the head. (Dana Williams Statement, p. 6) In Taneshia Clark's
                                                                                statement, she
 stated that Petitioner was on the passenger side of the vehicle with the
                                                                          door open, leaning in the
 vehicle while Hawkins was leaning in and tussling with the victim when the
                                                                            gun went off.
(Taneshia Clark Statement, pp. S-7) In addition, Dominique Clark's
                                                                   statement also placed
Petitioner next to the vehicle on the passenger side with his arm in the vehicle.
                                                                                  (Dominique
Clark Statement, pp. 5-8)

        As there was properly admitted substantive evidence that
                                                                 Petitioner was at the passenger
side of the vehicle, with the door open, reaching or leaning in and
                                                                    punching the victim at or
about the time Hawkins was struggling with the victim over the
                                                               gun when it went off, Petitioner
has failed to establish that, but for the failure to request the jury
                                                                      instructions as alleged, that there




                                                   10
  is a reasonable probability that the outcome of the proceedings would have been different.

  Therefore, there is no merit to Petitioner's claim on this issue and it was properly dismissed.

             Petitioner next argues that counsel was ineffective for failing to object to written

  instructions being sent to the jury, in lieu of oral instructions, in violation of Pa.R.Crim.P.

  646(c)(4)     .   Rule 646 provides as follows:

               Rule 646. Material Permitted in Possession of the Jury
              Currentness
               (A) Upon retiring, the jury may take with it such exhibits as the trial judge deems
              proper, except as provided in paragraph (C).
              (B) The trial judge may permit the members of the jury to have for use during
              deliberations written copies of the portion of the judge's charge on the elements of
              the offenses, lesser included offenses, and any defense upon which the jury has
              been instructed.
              (1) If the judge permits tile jury to have written copies of the portion of the judge's
             charge on the elements of the offenses, lesser included offenses, and any defense
             upon which the jury has been instructed, the judge shall provide that portion of
             the charge in its entirety.
             (2) The judge shall instruct the jury about the use of the written charge. At a
             minimum, the judge shall instruct the jurors that
             (a) the entire charge, written and oral, shall be given equal weight; and
             (b) the jury may submit questions regarding any portion of the charge.
            (C) During deliberations, the jury shall not be permitted to have:
            (1) a transcript of any trial testimony;
            (2) a copy of any written or otherwise recorded confession by the defendant;
            (3) a copy of the information or indictment; and
            (4) except as provided in paragraph (B), written jury instructions.
             Pa. R. Crim. P. 646


        The record reflects that the jury began its deliberations at 11:50 a.m. (T., p 303) At 1:30

p.m. the jury foreperson submitted the following question:

        "If guilt is found for felony robbery, are all murder charges still open, options? If
        so, could you please redefine all of them." (T., p. 304)


In response to the question, counsel was advised that the following response would
                                                                                   be given to
the jury:



                                                      11
         "Dear Mr. Foreperson and Members of the Jury, each of the three counts that the
         defendant is charged with are separate and distinct charges. You have to decide
         guilty or not guilty on each count separately. If you feel it is necessary to be
         recharged on criminal homicide, please inform my tip staff, Mr. Woodcock." (T,,
         pp. 304-305)


  Upon receiving the response, the jury foreperson indicated that the jury wished to be recharged

  on the issue of criminal homicide. Consequently, the jury was brought back to the
                                                                                    courtroom
 and re -instructed in the presence of counsel and Petitioner. (T., pp. 306 - 312)

         Clearly the response to the jurors' question was not an instruction given in violation of

 Pa.R.Crim.P. 646 (c)(4). There was no instruction on the law given to the jury in the note. It

 simply advised them that they were to deliberate on each count separately as
                                                                              previously
 instructed and to advise the court if they needed further clarification or reinstruction.
                                                                                           In response

 to the note the jury requested the reinstruction and were, therefore,
                                                                       brought back to the
 courtroom for further instruction. Consequently, there was no violation of Rule 646
                                                                                     (c)(4). In
addition, Petitioner has failed to present any evidence demonstrating that he was
                                                                                  in any way
prejudiced by the note that was given to the jury. Therefore, counsel was not
                                                                              ineffective in
failing to object to the note.

        In   Petitioner's third issue on appeal, Petitioner claims that trial counsel was ineffective

when she failed to object to the admission of the taped statement of Travis
                                                                            Hawkins. At the
PCRA hearing trial counsel testified about her strategy regarding
                                                                  Hawkins' taped statement.
Counsel testified:

       "I believe that Mr. Hawkins was deemed unavailable to testify
                                                                     and that's why the
       taped statement was brought in. However, that statement was    probably the best
       evidence that we had to go along with the theory of our case, so I wouldn't
                                                                                     have
       objected to it because I believe that it helped Mr. Stephenson. He and I had a lot
       of conversations about the defense in that case, and from what I recall the
                                                                                   defense
       was that Mr. Hawkins was the perpetrator and the sole perpetrator of the
                                                                                  robbery,
       that he was the one who masterminded the robbery. When they got the
                                                                                gun,

                                                   12
         approached the jitney driver, tussled with the jitney driver, shot him, and
        everyone ran. The taped statement actually only one time referenced a CK, which
        was Mr. Stephenson's street name at the time, and that reference was made in
        conjunction with Mr. Hawkins saying something like he was telling him he was
        going to get a gun and go rob this person, and it is Mr. Stephenson, CK, saying,
        no, don't do it. That's the only reference to CK in there. In fact, the whole
        statement was Mr. Hawkins saying, you know, he devised this plan to rob this
        person, he went and got the gun, he went to the jitney car, he tussled with him,
        and the guy was shot. And he was even asked during the statement whether or not
        there was anybody else involved, and he indicated he didn't recall anybody. So I
        wouldn't have objected because I believe it was helpful to our defense." (PCRA
        H.T., pp 7-8)

        Petitioner did not testify at the PCRA hearing to refute counsel's testimony that he and

 counsel agreed to a trial strategy that included the use of Hawkins' statement. Petitioner asserts

 that without Hawkins' statement, the Commonwealth would not have been able to establish the

fact that the shooting occurred during a robbery and thus provide a basis for the conviction for

second-degree murder. In response, trial counsel stated:

        "Well, there were other witnesses, girls that came in to testify later and indicated
        there was a robbery and a gun involved, so, no, I think other statements would've
        come in any way." (PCRA H.T., p. 8)

This assertion is confirmed by   a   review of the record. In addition, counsel's strategy was

evident in her closing argument when she stated:

       "I want to talk about the statement of Mr. Travis Hawkins, because I think this is
       the most important piece of evidence you were given. Mr. Standttniller asked to
       play the tape of Travis Hawkins. I didn't object. He is the co-conspirator. I
       wanted you to hear it. I wanted you to hear the words out of this man's mouth as
       he told them confessed to the police that he committed the crimes that day and he
       committed the crime of murder. (T.T., p. 250)

Counsel further stated in her argument:

       "This is a man who goes in and who confesses to the police that he acted alone,
       never indicated that Douglas enticed him in any way, that he acted alone, he had
       the gun, he went over to the car, he made the choice, he made the decision by
       himself. There was not an agreement, not a conspiracy. (T.T., p. 250)




                                                   13
          A review of Hawkins' statement indicates that Hawkins did not clearly implicate

  Petitioner as a participant in the robbery or shooting. (Amended PCRA Petition Exhibit I) As

  trial counsel testified, there was one reference to "CK" in which Hawkins stated that after seeing

  the jitney parked on Zephyr Street he "informed CK, told him that I was about to rob him. He

  said, no at first and then I said No, but f   _ k it." (Travis Hawkins Statement, p. 3) Hawkins

  then stated that when he stated that, that meant that he was "not going to do it." (Travis
                                                                                             Hawkins
 Statement, p. 3) There is no further reference in the remainder of the statement to Petitioner.

 Petitioner's allegation that there is nothing in the statement that helps his case is contradicted by

 the statement itself. Clearly counsel's strategy was to use Hawkins' recorded
                                                                               statement to argue
 to the jury that Hawkins never implicated Petitioner in the shooting in any manner and
                                                                                        that he
 acted alone. An examination of counsel's closing argument shows that she emphasized

 Hawkins' statement and used it to buttress the further argument that the testimony of Dana

 Williams, Taneshia Clark and Dominique Clark was contradictory and should be rejected.

        A review of the entire record indicates that counsel weighed the potential
                                                                                   benefit of the
admission of Hawkins' statement in light of all of the other evidence in the case.
                                                                                   Counsel
established a reasonable strategy for not objecting to the admission of the statement. Therefore,

counsel was not ineffective in failing to object to the admission of Hawkins' taped statement.

        Petitioner's final claims is that he was given an illegal sentence for conspiracy to commit

robbery when, under the facts of the case, criminal conspiracy merged for purposes of
                                                                                      sentencing
with the crime of second degree murder. Petitioner alleges that his sentence was
                                                                                 illegal because
he received   a   life sentence for second degree murder and a consecutive sentence for conspiracy

to commit robbery. Specifically, Petitioner argued that the jury was instructed that
                                                                                     it could




                                                   14
  convict him of second degree murder as either a co-conspirator or as an accomplice.
                                                                                      Petitioner
  alleged that:

          "The conspiracy theory incorporated the same elements as the criminal charge of
         conspiracy. Pursuant to an Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348
         (2000), because the jury was not asked specifically as to what theory they used to
         convict Petitioner, an increase in sentence cannot occur, In other words, it must
         be assumed that the jury found Petitioner guilty of second degree murder because
         of the conspiracy theory. Id." (PCRA Petition, p. 19)

         In Apprendi     v.   New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, (2000) the United States

 Supreme Court held that any finding which results in punishment beyond the statutory
                                                                                      maximum
 must be submitted to a jury and proven beyond a reasonable doubt. Commonwealth
                                                                                              v.

 Haughwout, 837 A.2d 480, 488 (2003) The holding in Apprendi is inapplicable
                                                                             in this case.
 There was no enhancement of the sentence based on a fact not found by
                                                                       the jury. Whether or not
 Petitioner was found guilty of second degree murder as        a   co-conspirator or an accomplice is
 unrelated to his conviction for criminal conspiracy -robbery.


        The crime of conspiracy is separate and distinct from the underlying
                                                                             substantive crime.
Commonwealth      v.   Ritter, 615 A.2d. 442, 444 (Pa. Super. 1992) Sentences will merge
                                                                                         when: (1)
the crimes have the same elements, i.e., are lesser included offenses,
                                                                       and (2) the facts of the cases
are such that the facts which establish one criminal charge also serve
                                                                       as the basis for the

additional criminal charge. Commonwealth         v.   Servich, 602 A.2d. 1338, 1345 (Pa. Super. 1992)

Therefore, Petitioner's claim that he was subject to an illegal sentence was
                                                                             appropriately
dismissed.




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