J-S33045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ERIC ARMS

                        Appellant                   No. 2958 EDA 2014


                Appeal from the PCRA Order October 14, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006895-2008,
                            MC-51-0015843-2008


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 12, 2015

      Eric Arms appeals from the order of the Court of Common Pleas of

Philadelphia County dismissing his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       Upon careful review, we

affirm.

      The PCRA court has set forth the relevant facts of this matter as

follows:

      [Arms’] convictions arose out of an incident that occurred on
      March 20, 2008. On that date, Maurice Shaw drove into a gas
      station located at 57th and Walnut Streets with his cousin,
      Ronnel James. [Arms], who was at the gas station at the time,
      saw Shaw as Shaw walked up to him. Shaw told [Arms] not to
      go anywhere and then reached under his shirt. [Arms], who had
      problems with Shaw in the past and was aware that Shaw was
      known to do “things” like that thereby implying that Shaw was
      reaching into his shirt for a weapon, grabbed a knife from his car
      and fatally stabbed Shaw four times; twice in the back and twice
      in the chest. [Arms] thereafter surrendered to police.
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PCRA Court Opinion, 1/16/15, at 2.

        On November 3, 2009, Arms was convicted of third-degree murder1

and possessing instruments of crime,2 following a bench trial before Judge

Carolyn E. Temin. On March 2, 2010, Judge Temin imposed an aggregate

sentence of eighteen to forty-five years’ incarceration.       Arms then filed a

notice of appeal to this Court and on February 24, 2011, we issued a

memorandum          and     order     affirming   the   judgment   of   sentence.

Commonwealth v. Arms, 24 A.3d 463 (Pa. Super. 2011) (unpublished

memorandum).          The Pennsylvania Supreme Court denied allowance of

appeal on September 14, 2011.             Commonwealth v. Arms, 29 A.3d 370

(Pa. 2011) (unpublished memorandum).

        Arms filed a pro se PCRA petition on June 26, 2012.         Counsel was

appointed and, on October 3, 2013, filed an amended petition.           A hearing

was held on September 12, 2014, and on October 14, 2014, the PCRA court

entered an order dismissing the petition without an evidentiary hearing.

        On October 14, 2014, Arms filed a timely notice of appeal to this

Court, in which he raises the following issue:

        The PCRA court erred in determining that trial counsel was not
        ineffective for failing to buttress [Arms’] self-defense theory by
        presenting evidence of decedent’s arrests for violent crimes and
        for failing to present evidence of decedent’s violent character.
____________________________________________


1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 907(a).



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Appellant’s Brief, at 8.

      Our standard of review of an order dismissing a PCRA petition is as

follows:

      [I]n reviewing the propriety of an order granting or denying
      PCRA relief, we are limited to determining whether the evidence
      of record supports the determination of the PCRA court, and
      whether the ruling is free of legal error. Great deference is
      granted to the findings of the post-conviction court, and these
      findings will not be disturbed unless they have no support in the
      certified record.

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002).

      Arms argues that his trial counsel failed to buttress his self-defense

theory by not presenting evidence of Shaw’s arrests for violent crimes and

for failing to present evidence of Shaw’s violent character. Arms claims that

had trial counsel presented more evidence of Shaw’s violent tendencies, he

could have proven that he was in reasonable fear of death or great bodily

harm, which could have led to a not guilty verdict. Therefore, Arms believes

his trial counsel was ineffective.

      Arms’ self-defense claim relies on well-settled law that proscribes the

following conditions:

      (1) The slayer must have been free from fault in provoking or
      continuing the difficulty which resulted in the killing;

      (2) The slayer must have reasonably believed that he was in
      imminent danger of death or great bodily harm, and that there
      was a necessity to kill in order to save himself therefrom;

      (3) The slayer must not have violated any duty to retreat or
      avoid the danger.




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Commonwealth v. Simmons, 475 A.2d 1310, 1313 (Pa. 1984) (citations

omitted).

      In a claim for ineffectiveness of counsel, the law presumes that trial

counsel was effective.   Commonwealth v. Rios, 920 A.2d 790, 805 (Pa.

2007). “In order to obtain relief under the PCRA premised upon a claim that

counsel was ineffective, a petitioner must establish beyond a preponderance

of the evidence that counsel’s ineffectiveness so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.”    Payne, 794 A.2d at 905 (quotation marks omitted)

(citing 42 Pa.C.S.A. § 9543 (a)(2)(ii)).

      In order to succeed on an ineffectiveness of counsel claim, “[a]ppellant

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.” Commonwealth v. Michaud, 70

A.3d 862, 867 (Pa. Super. 2013).       “Counsel cannot be deemed ineffective

for failing to pursue a meritless claim.”      Payne, 794 A.2d at 906.          “An

assessment of this prong requires appellant to establish each Pierce prong

with respect to trial counsel’s performance; failure to establish any one of

the   prongs   concerning   trial   counsel   will   defeat   the   entire   claim.”

Commonwealth v. Williams, 863 A.2d 505, 513 n.9 (Pa. 2004) (citations

omitted).

      Arms argues that counsel should have introduced Shaw’s criminal

record in order to prove Shaw’s violent character. Whether this claim has

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merit is predicated on whether Shaw’s criminal record was admissible.      In

order for the deceased victim’s criminal record to be admissible, the

defendant must use it either:

      (1) to corroborate his alleged knowledge of the victim’s
      quarrelsome and violent character to show that the defendant
      reasonably believed that his life was in danger; or (2) to prove
      the allegedly violent propensities of the victim to show that the
      victim was in fact the aggressor.”

Commonwealth v. Amos, 284 A.2d 748, 751 (Pa. 1971). This Court has

held that, “where offered merely to prove the allegedly violent propensities

of the victim to show that the victim was in fact the aggressor, mere arrests,

without convictions, are inadmissible.”    Commonwealth v. Ignatavich,

482 A.2d 1044, 1047 (Pa. Super. 1984) (quotation marks and citations

omitted).

      Here, while Shaw had been arrested for multiple violent crimes, he had

only been convicted of the crimes of disorderly conduct and drug possession.

Only these two convictions, and not the full arrest record, would be

admissible under Ignatavich.        However, since neither of these two

convictions demonstrate a violent propensity in Shaw, his criminal record

would be inadmissible. Accordingly, this claim is meritless.

      Arms also argues that trial counsel should have called witnesses from

the neighborhood in order to testify to Shaw’s violent character to bolster

Arms’ self-defense claim. To prevail on a claim of ineffective assistance of

counsel for failing to call witnesses, Arms must show:



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        (1) the existence and availability of the witness; (2) counsel’s
        awareness of, or duty to know of, the witness; (3) the
        willingness and ability of the witness to cooperate and appear on
        behalf of the defendant; and (4) the necessity of the proposed
        testimony in order to avoid prejudice.

Commonwealth v. Pierce, 786 A.2d 203, 214 (Pa. 2001). Here, Arms has

failed to produce a single witness who could testify to Shaw’s purported

violent tendencies.     Without proving the existence and availability of the

witness, Arms’ claim lacks merit.

        Regarding trial counsel’s alleged failure to call Arms to testify to

Shaw’s violent character, we will “conclude that counsel's chosen strategy

lacked a reasonable basis only if Appellant proves that an alternative not

chosen offered a potential for success substantially greater than the course

actually pursued."     Commonwealth v. Davido, 106 A.3d 611, 621 (Pa.

2014) (quotation marks and citations omitted).

        Here, trial counsel testified that he believed that if Arms testified, the

district attorney, on cross-examination, would have made Arms look like a

very aggressive person. N.T. PCRA Hearing, 9/12/14, at 26-27. This was a

reasonable basis for trial counsel to decide not to have Arms testify, as

evidenced by the fact that Arms punched trial counsel in the head after the

verdict.     N.T. Trial, 11/3/09, at 136.       Accordingly, trial counsel had

reasonable basis not to have Arms testify and Arms’ argument fails here as

well.

        Moreover, trial counsel’s failure to introduce certain character evidence

about Shaw, did not prejudice Arms.          To establish prejudice, Arms must


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show that “there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s action or inaction.

Davido, 106 A.3d at 621 (citations omitted).

     Here, trial counsel presented evidence that Shaw was a violent person.

Counsel introduced evidence, through Detective Mangold, that Arms and

Shaw “had problems in the past.” N.T. Trial, 11/3/09, at 104. Counsel also

introduced evidence that Shaw had a reputation for carrying a weapon. Id.

at 95, 106, 108. Finally, counsel presented evidence that Shaw had shot at

Arms the night before the stabbing.           Id. at 110.    The trial court heard

considerable evidence regarding Shaw’s violent character and therefore,

Arms was not prejudiced by his trial counsel’s failure to introduce certain

character evidence about Shaw’s violent nature.

     Arms     has   failed   to   establish   that   counsel’s   ineffectiveness   so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place. Payne, supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2015




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