J-S60040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL TYRELL HOLSTON

                            Appellant                 No. 223 MDA 2014


                  Appeal from the PCRA Order January 15, 2014
                In the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-CR-0005167-2009


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED OCTOBER 28, 2014

        Michael Holston appeals from an order denying his amended petition

for relief under the Post Conviction Relief Act (“PCRA”)1. We affirm.

        On January 28, 2011, a jury found Holston guilty of first degree

murder2 and two counts of firearms not to be carried without a license 3. The

trial court sentenced Holston to life imprisonment for first degree murder

and to concurrent terms of 3-7 years’ imprisonment on each firearm count.

        Holston filed post-sentence motions, which the trial court denied, and

then a direct appeal.        On August 17, 2012, the Superior Court affirmed

Holston’s judgment of sentence. On February 1, 2013, Holston timely filed a
____________________________________________


1
    42 Pa.C.S. § 9541 et seq.
2
    18 Pa.C.S. § 2502.
3
    18 Pa.C.S. § 6106.
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pro se PCRA petition in the trial court.   The court appointed counsel to

represent Holston, and counsel filed an amended PCRA petition.

      On November 1, 2013, the court issued a notice of intent to dismiss

Holston’s amended PCRA petition without a hearing. On January 14, 2014,

the court issued an order dismissing Holston’s petition.    Holston filed a

timely notice of appeal and timely Pa.R.A.P. 1925(b) statement.

      The trial court summarized the evidence adduced during trial as

follows:

           Moshe Cohen, a longtime friend of the victim,
           seventeen year old David Carr, testified that on July
           30, 2009, he and Carr went to the 1900 Block of
           State Street in Harrisburg to try to buy marijuana
           from a person known as Source. (Transcript of
           Proceedings, Jury trial, January 24, 2011-January
           28, 2011, pp. 141-142) (hereinafter, ‘N.T.’) Source
           was not around. The Defendant Michael Holston
           spoke with them, and told them that he could get
           them a half pound of marijuana. (N.T. p. 144).

           Cohen made arrangements with a few other friends
           to pool their money to buy the half pound, and gave
           it to Carr. (N.T. p. 149). Two days later, on August
           2, Cohen met Carr at the Burger King on Cameron
           Street to obtain the marijuana. The Defendant and a
           friend of Carr's, Ashton Dickerson, were in Carr's
           vehicle. (N.T. p. 151)      When Carr and Cohen
           returned home and weighed the marijuana, it
           weighed 5 ounces, not the 8 ounces for which they
           paid Holston. Carr took the shorted portion for
           himself. (N.T. p. 154). Later, on August 7, Carr
           spoke to Moshe about his intention to visit Defendant
           the next day and get money back for the shortage.
           Moshe discouraged him from doing so. (N.T. pp.
           158-159).


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          Video footage taken August 8, 2009, from a nearby
          restaurant store, shows David Carr's vehicle pull up
          to 1900 North Street. (N.T. p. 413)         A person
          approached the vehicle; Carr waited in his vehicle for
          about 17 minutes, then got out of his car and walked
          to 1905 North Street, near Defendant's address.
          (N.T. pp. 415-417)

          Tanaya Scott lived at 1907 North Street. (N.T. p.
          232) She knew Defendant and spoke with him
          frequently. On the morning of August 8, 2009, Scott
          spoke to the Defendant and saw him smoking ‘water’
          or ‘wet’ (embalming fluid) at 8:30 or 9:00 a.m., and
          also about an hour before the shooting. (N.T. p. 241)
          Scott testified that it was common for Defendant to
          smoke water daily. Id. That afternoon, before the
          shooting, although Scott testified that Defendant was
          ‘bouncing around’ and talking a lot, he walked the
          dog with her son. (N.T. p. 243) When he returned,
          Defendant took off his necklace, gave it to Scott's
          son, and told him he was a ‘good boy’. (N.T. p. 244)
          Shortly before the shooting, Scott overheard
          Defendant talking on the phone and heard him say,
          ‘I'm sorry. I know I got you waiting.’ (N.T. p. 246)
          Scott observed that Defendant had a handgun in his
          right top pocket, and something heavy in his cargo
          pants pocket, which he touched frequently. (N.T. pp.
          246-247)

          Scott observed Defendant walk to the front of the
          building, and return with David Carr. (N.T. p. 250).
          Defendant introduced Carr to Scott; Defendant joked
          that Carr was short, like him, but had big feet. (N.T.
          p. 250) Scott went into her house.

          From her bathroom window, Scott could see down
          into the alley between 105 and 1907 North Street.
          (N.T. p. 251) She heard loud talking, and heard Carr
          say, ‘Stop playing,’ to which the Defendant replied,
          "No M-----F-----." She then heard running. (N.T. p.
          252) In a written statement to police, Scott stated
          that she saw Defendant chasing Carr down the alley


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              with his arm outstretched. (N.T. p. 255). She next
              heard gunshots.

              Rabia Kouzouni testified, through an interpreter, that
              at the time of the shooting, she was taking her trash
              out from the kitchen door of her house at the 1900
              block of State Street. (N.T. p. 220)       From her
              window, Mrs. Kuzouni saw people arguing, one in a
              very loud voice. (N.T. pp. 222-223) She could see
              that the two people were standing "too close... very
              close". (N.T. p. 223)      She heard someone say
              something, which she did not understand4. As Mrs.
              Kouzouni began to take out the trash, she heard
              gunshots, and retreated inside. (N.T. p. 225) She
              hid inside, and heard the sound of someone running.
              (N.T. p. 226) She remained in the kitchen, and
              looked outside to see someone lying down. (N.T. p.
              226)

              Ed Polston testified that he knew Defendant through
              Defendant's visits to Polston's sister's house at 1900
              North Street. Polston went to his sister's house on
              the day of the shooting. When he arrived, someone
              told him that a person had been shot, and to get in
              the house. (N.T. p. 228) As Polston sat on the
              couch, the Defendant tried to put a gun in Polston's
              pocket, saying something to the effect of ‘just take
              this’ to which Polston responded ‘No.’ (N.T. p. 290)
              Polston and the Defendant then spoke briefly about a
              mutual friend who owed Polston five dollars. (N.T. p.
              291) The Defendant then left, and went to the store.
              (N.T. pp. 292-293)

              Monique Winston was also at 1900 North Street
              when she heard that something bad had happened.
              (N.T. p. 303) After police arrived at the alley, she
              went onto the balcony and watched what was
              occurring on the street. (N.T. p. 305)        Within
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4
 Her son, who is fluent in English, later translated the word Mrs. Kuzouni
heard to be "please, as to beg someone" (N.T. p. 223).


                                               4
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              minutes, the Defendant arrived at her house, came
              into the living room and spoke with Ed Polston. (N.T.
              pp. 305-306) Ms. Winston asked Defendant if she
              could go look out of Defendant's bedroom window, to
              be able to see where the body was lying. (N.T. p.
              312) Defendant stopped talking, and gave her a
              blank stare. (N.T. p. 312) Defendant then left the
              house, crossed the street, and entered the
              restaurant store. (N.T. p. 307) As Ms. Winston
              watched police lead Defendant out of the store,
              Defendant yelled to her, ‘Mo, call my mom. Don't
              worry about me. I'll be back. I'm extra wavy.’ 5 (N.T.
              p. 308)

              Monique Winston testified that during the time she
              dated Defendant, she smoked wet with him three or
              four times a day, and that the effects lasted about
              forty five minutes, then they would have to smoke it
              again to get high. (N.T. p. 310) When Defendant
              was on wet, he could function, and was not out of
              control or violent. (N.T. p. 311; N.T. pp. 313-314)

              Ed Polston's sister, Monique Polston, was also at
              1900 North Street at around 4:30 p.m. on the day of
              the shooting. (N.T. p. 319) Soon after she heard
              that someone had been shot, Defendant arrived.
              When Ms. Polston asked him what happened, he said
              he didn't know, that gunshots awoke him, and asked
              for a cigarette. (N.T. p. 322) Ms. Polston asked him
              about the twenty dollars he owed her, to which he
              responded he would pay her later. (N.T. p. 323)
              Defendant spoke and walked normally, although he
              seemed nervous. (N.T. pp. 323-324)

              At approximately 4:35 p.m., while working the 3
              p.m. to 11 p.m. shift in the Allison Hill area,
              Sergeant Steven Novacek of the Harrisburg Police
              received a call of shots fired with a person down at
____________________________________________


5
   A slang term from a rap song, which witnesses testified Defendant
frequently used, purportedly meaning ‘cool’ (N.T. p. 309).


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          19th Street and Miller Alley. (N.T. pp. 70-71) Officer
          Novacek exited his vehicle and walked up the
          alleyway toward the person down. (N.T. p. 74-75)
          There, Officer Novacek saw a young white male, in
          a kneeling position, bent backwards, obviously
          deceased. (N.T. pp. 75-76) Other officers began
          responding, preserving the scene, and collecting
          evidence. (N.T. p. 78)

          Officer Kenneth Young of the Harrisburg Police,
          assigned to a robbery task force, also received a call
          regarding a shooting at the 1900 Block of Miller
          Street, with one person deceased. (N.T. pp. 83-84)
          After arriving at the scene, Officer Young assisted
          with canvassing neighbors to ask what they may
          have heard or observed. (N.T. pp. 87-88)         Two
          people indicated that the shooter went into 1900
          North Street. (N.T. pp. 88-89)         Officer Young
          observed a person who fit the description of the
          shooter, later identified as the Defendant, exit the
          residence, cross the street and enter a store. (N.T.
          pp. 91-92; N.T. p. 130) Officer Young entered the
          store. When police spoke to him, the Defendant
          asked the officer to ‘hold on’ while he paid for his
          food. (N.T. p. 94) When asked for identification,
          Defendant stated that he had a gun in the pocket of
          his cargo pants, and that the gun was registered.
          (N.T. p. 95) Defendant then twisted his body to
          evade search of his right pocket, in which police
          found another gun which had live bullets in the
          magazine and one in the chamber. (N.T. pp. 94-95;
          p. 120; p. 131)         [Officer Young] stated that
          Defendant followed the officers’ simple commands,
          walked and talked normally, and did not exude the
          pungent odor of PCP. (N.T. pp. 102-103; N.T. p.
          124) Inside the store, Defendant cooperated with
          police. (N.T. p. 100) As Police loaded Defendant in
          the police van, Defendant yelled to people watching
          to call his mother, and shouted a phone number.
          (N.T. p. 325)

          Detective    Donald   Heffner of the    Criminal
          Investigation Division of the Harrisburg Police
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          Department responded to the crime scene at about
          4:50 p.m. (N.T. p. 464) After securing the crime
          scene and assisting officers who apprehended
          Defendant, Detective Heffner next saw Defendant in
          the booking room. (N.T. p. 469) Defendant had a
          tissue or paper towel and was attempting to wipe his
          hands. Concerned that Defendant was removing gun
          residue and or blood from his hands, Detective
          Heffner took the tissue from Defendant. (N.T. p.
          471) Defendant was ‘passive aggressive’, in that he
          reluctantly followed commands. (N.T. p. 472)
          Detective Heffner did not seek permission to obtain a
          blood sample, in that he did not believe Defendant
          was intoxicated. (N.T. p. 473)       When Detective
          Heffner told Defendant that he would be charged
          with possession of handguns, Defendant blurted out,
          falsely, that one of the guns belonged to his mother,
          and that he had a permit for it. (N.T. pp. 473-474)
          Investigator William Kimmick of the Harrisburg Police
          had contact with Defendant in the booking area at
          approximately 8 p.m. on the night of the shooting,
          for the purpose of obtaining swabs from his hands to
          test for gunshot residue. (N.T. p. 403) Defendant
          did not appear to be under the influence, and was
          not argumentative, although he ignored commands.
          (N.T. p. 404)

          Wayne Ross, M.D., a forensic pathologist, testified
          that he conducted an autopsy of David Carr and
          determined the cause of death as multiple gunshot
          wounds to the top of the head. Eight bullets entered
          the head, six penetrated the skull. (N.T. p. 197) Dr.
          Ross reviewed a photograph of the position of the
          victim at the crime scene. Dr. Ross opined that the
          victim was shot from approximately [2 to 3 feet], as
          evidence by ‘stippling’, abrasions to the skin caused
          by gunshot residue. (N.T. pp. 200-202) The wounds
          were consistent with an ‘execution style’ killing, that
          is, within a few feet, over the top of the head, and
          directly to the brain or skull. (N.T. p. 204)

          The defense called Lawrence Guzzardi, M.D., as an
          expert toxicologist. Dr. Guzzardi testified that based
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               upon his understanding of the amount of
               formaldehyde the Defendant smoked, as related to
               him by Defendant, he did not believe that Defendant
               was capable of forming the specific intent to commit
               murder, (N.T. p. 662).

Trial Court Opinion, pp. 2-7.

        In his first issue on appeal, Holston argues that his constitutional

rights were violated because the police failed to give him Miranda6 warnings

before obtaining his custodial statement. Holston has waived this issue by

failing   to   raise   it   in   his   original    and   amended   PCRA   petitions.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super.2013) (Defendant

waived claims of ineffective assistance of trial counsel on appeal of dismissal

of PCRA petition, where defendant failed to raise the claims in his PCRA

petition).

        In his second issue on appeal, Holston argues that trial counsel was

ineffective for failing to object to the admission of a photograph depicting

the victim as it was discovered by the first responding police officer,

Sergeant Novacek. We disagree.

        In order to prevail on a claim of ineffective counsel, the appellant must

demonstrate that: (1) the underlying claim is of arguable merit; (2) that

defense counsel's action or inaction was not grounded on any reasonable

basis designed to effectuate the appellant's interest; and, (3) that the
____________________________________________


6
    Miranda v. Arizona, 384 U.S. 436 (1966).


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appellant suffered prejudice because of the ineffective assistance of counsel.

Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987). lf it is clear that an

appellant has not met the prejudice prong of the ineffectiveness standard,

the claim may be dismissed on that basis alone.                      Commonwealth v.

Travaglia,    661   A.2d      352,      357   (1995);    see        also   Strickland   v.

Washington, 466 U.S. 668, 697 (1984).

      Under Pierce, the first inquiry is whether the claim that the

photograph admitted into evidence was inflammatory must be of arguable

merit. The viewing of photographic evidence in a murder case is, by its

nature, a gruesome task.          However, photographs of a corpse are not

inadmissible per se.       Commonwealth v. Hetzel, 822 A.2d 747, 765

(Pa.Super.2003).    Rather, the admission of such photographs is a matter

within the discretion of the trial judge.            Commonwealth v. Tharp, 830

A.2d 519, 531 (Pa. 2003). The court must conduct a two-part test to

determine    admissibility.    First,    it   must    decide   if    the   photograph   is

inflammatory. If not, the photograph is admissible if it is relevant and can

assist the jury's understanding of the facts. lf it is inflammatory, the trial

court must decide whether or not the photograph is of such essential

evidentiary value that its need clearly outweighs the likelihood of inflaming

the minds and passions of the jurors. Id. In order for a photograph to be

deemed inflammatory, "the depiction must be of such a gruesome nature or

be cast in such an unfair light that it would tend to cloud an objective
                                              9
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assessment of the guilt or innocence of the [appellant]." Commonwealth

v. Dotter, 589 A.2d 726, 729 (Pa. Super. 1991). The visibility of blood in a

photograph, however, does not necessarily require a finding that the

photograph is inflammatory. Commonwealth v. Crawely, 526 A.2d 334,

341 (Pa. 1987).   Furthermore, the condition of the victim's body provides

evidence of the assailant's intent, and even where a medical examiner’s

testimony can describe the body's condition, such testimony does not

obviate the admissibility of photographs.   Commonwealth v. Rush, 646

A.2d 557, 560 (Pa. 1994).

     Here, the photograph at issue depicted the position of the victim's

body when Sergeant Novacek discovered it. The sergeant testified that the

photograph at issue showed "what [he] observed as [he] walked up to the

wooden fence where the victim was located. It shows the victim in his final

resting place that day...his knees bent toward the north, toward the street,

and his legs underneath him." (N.T. 75-76). The sergeant confirmed that the

photograph was a fair and accurate depiction and displayed exactly how he

found the victim's body. (N.T. 76). Despite its gruesome nature, this

photograph provided evidence of Holston's intent to murder the victim and

assisted the jury in understanding the circumstances of the execution style

murder. Therefore, the photograph was relevant in corroborating Sergeant

Novacek's testimony as the first responding officer, and it assisted the jury

in understanding the circumstances of the murder and Holston's specific
                                     10
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intent to kill. Holston's claim that it was inflammatory is without arguable

merit.

      In his third and final issue on appeal, Holston contends that appellate

counsel was ineffective for failing to challenge the sufficiency of the evidence

on direct appeal.    Holston argues that the evidence of his intoxication

negated the Commonwealth’s evidence that he had specific intent to kill the

victim, thus nullifying his conviction for first degree murder. We disagree on

the ground that this claim lacks arguable merit.

      The standard we apply in reviewing the sufficiency of the evidence is

            whether viewing all the evidence admitted at trial in
            the light most favorable to the verdict winner, there
            is sufficient evidence to enable the fact-finder to find
            every element of the crime beyond a reasonable
            doubt. In applying [the above] test, we may not
            weigh the evidence and substitute our judgment for
            the fact-finder. In addition, we note that the facts
            and       circumstances      established     by      the
            Commonwealth need not preclude every possibility
            of innocence. Any doubts regarding a defendant's
            guilt may be resolved by the fact-finder unless the
            evidence is so weak and inconclusive that as a
            matter of law no probability of fact may be drawn
            from       the    combined      circumstances.      The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.
            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the [finder] of
            fact, while passing upon the credibility of witnesses
            and the weight of the evidence produced, is free to
            believe all, part or none of the evidence.

Commonwealth v. Devine, 26 A.3d 1139, 1145 (Pa.Super.2011).
                               11
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      To sustain a conviction of first-degree murder, the Commonwealth

must prove beyond a reasonable doubt that: (1) a human being was killed;

(2) the accused caused the death; and (3) the accused acted with malice

and a specific intent to kill. Commonwealth v. Chine, 40 A.3d 1239, 1242

(Pa. Super. 2012). The Commonwealth may prove the specific intent to kill

with circumstantial evidence. For instance, the use of a deadly weapon on a

vital part of a victim's body is sufficient to establish the specific intent to kill.

Commonwealth v. Fletcher, 861 A.2d 898, 907 (Pa. 2004).                        "The

existence of legal malice may be inferred and found from the attending

circumstances of the act resulting in the death."             Commonwealth v.

Gardner, 416 A.2d 1007, 1008 (Pa. 1980). "It is well settled that specific

intent to kill, as well as malice, may be inferred from the use of a deadly

weapon upon a vital part of the victim's body.” Id.

      The defense of intoxication is set forth in 18 Pa.C.S. § 308:

             Neither voluntary intoxication nor voluntary drugged
             condition is a defense to a criminal charge, nor may
             evidence of such conditions be introduced to
             negative the element of intent of the offense, except
             that evidence of such intoxication or drugged
             condition of the defendant may be offered by the
             defendant whenever it is relevant to reduce murder
             from a higher degree to a lower degree of murder.

Id.   Evidence of intoxication may be offered by a defendant to reduce

murder from a higher degree to a lower degree. Id. Intoxication, however,

may only reduce murder to a lower degree if the evidence shows that the


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defendant was “overwhelmed to the point of losing his faculties and

sensibilities.”    Commonwealth v. Breakiron, 571 A.2d 1035, 1041

(Pa.1990).     The value of such evidence is generally for the finder of fact,

who is free to believe or disbelieve any, all, or none of the testimony

addressing intoxication. Commonwealth v. Fletcher, 861 A.2d 898, 908

(Pa.2004).

      The Commonwealth presented sufficient evidence at trial to prevail

over an intoxication defense. The victim's died from multiple gunshot

wounds to the head at close proximity in an execution style murder. (N.T.

197, 204). Multiple witnesses saw Holston with the victim moments before

the killing.      (N.T. 222-24, 249-50).       Although Holston's trial counsel

presented      evidence   to   support   his   intoxication   defense   through   a

toxicologist, Dr. Lawrence Guzzardi (N.T. 614-735), the Commonwealth

presented multiple witnesses who described that Holston did not exhibit

overt displays of intoxication. (N.T. 102-03, 124-25, 323-24, 365, 403-04

472-73, 503-05, 511-12).         Finally, Edward Polston testified that Holston

tried to give him the murder weapon shortly after the killing, thus displaying

Holston's awareness of the criminality of his actions in murdering the victim.

(N.T. 290-91).

      For these reasons, Holston’s claim that his appellate counsel provided

ineffective assistance is devoid of substance.

      Order affirmed.
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2014




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