J-S10042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                     Appellee            :
                                         :
                v.                       :
                                         :
 CARL SMITH                              :
                                         :
                     Appellant           :        No. 1996 EDA 2018

             Appeal from the PCRA Order Entered July 10, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0008870-2011


BEFORE:    GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED APRIL 22, 2019

     Appellant, Carl Smith, appeals from the order entered in the Philadelphia

County Court of Common Pleas, which denied his first petition brought

pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

     In its opinion, the PCRA court fully and correctly set forth the relevant

facts and procedural history of this case.   Therefore, we have no need to

restate them.

     Appellant raises the following issues for our review:

          DID THE PCRA COURT ERR IN DISMISSING APPELLANT’S
          PCRA PETITION WITHOUT A HEARING BECAUSE TRIAL
          COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST
          THAT THE JURY BE CHARGED AS TO INVOLUNTARY
          MANSLAUGHTER, APPELLANT SUFFERED PREJUDICE, AND
          [A] NEW TRIAL SHOULD HAVE BEEN ORDERED?

          DID THE PCRA COURT ERR IN DISMISSING APPELLANT'S
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10042-19


         PCRA PETITION WITHOUT A HEARING BECAUSE TRIAL
         COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
         THE ADMISSION OF HEARSAY PRIOR BAD ACTS EVIDENCE
         WITHOUT NOTICE INCLUDING AN ALLEGED THEFT FROM
         THE HOME OF GIOVANNI MARQUEZ, APPELLANT SUFFERED
         PREJUDICE, AND [A] NEW TRIAL SHOULD HAVE BEEN
         ORDERED?

(Appellant’s Brief at 4).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007).     We give no such deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Sandy L.V.

Byrd, we conclude Appellant’s issues merit no relief. The PCRA court opinion


                                     -2-
J-S10042-19


comprehensively discusses and properly disposes of the questions presented.

(See PCRA Court Opinion, filed October 5, 2018, at 3-7) (finding: (1) facts of

case did not support jury charge on involuntary manslaughter; Appellant

raised   justification   defense   to   obtain   complete   acquittal;   involuntary

manslaughter instruction could have compromised possibility of acquittal by

undermining Appellant’s claim of self-defense; (2) court properly admitted

prior bad acts evidence of Appellant’s fist fight with Victim and theft of laptop,

to show motive; Commonwealth provided notice of intent to introduce prior

bad acts evidence by including it in affidavit of probable cause and discovery

materials; prior bad acts evidence also placed Victim in poor light; further,

Commonwealth presented overwhelming evidence against Appellant, who

cannot establish prejudice from admission of prior bad acts evidence;

Appellant presented no claim of arguable merit and was not entitled to PCRA

hearing). The record supports the reasoning of the PCRA court. Accordingly,

we affirm based on the PCRA court opinion.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/19


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                                                                                              Opinion omm. v. Smith, Can



                                   CARL SMITH                                            I
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                                                                                 III/II8172955401
                                                                                 .
                                                             OPINION

                Byrd, J.                                                                            October 5, 2018


                            On March 25, 2013, a jury sitting before the Honorable Lillian Ransom convicted Carl

                Smith of first degree murder, possessing an instrument of crime and two violations of the Uniform

            Firearms Act. Thereafter, Smith was found guilty of violating section 6105 of the Uniform

            Firearms Act by Judge Ransom following a bench trial. Smith was sentenced to a mandatory term

            of life imprisonment without the possibility of parole. Smith filed a post-sentence motion which

            was denied by operation of law on July 29, 2013. He filed a notice of appeal, and on September

                16, 2014, the Superior Court affirmed his judgment of sentence. On May 13, 2015, Smith's petition

            for allowance of appeal was denied by the Supreme Court. The United States Supreme Court

            denied certiorari on October 5, 2015.

                            Petitioner filed a pro se petition under the Post Conviction Relief Act (PCRA) on

            September 30, 2016. Appointed counsel filed an amended petition on October 31, 2017, and the

            matter was assigned to this court following Judge Ransom's appointment to the Superior Court.

            This court issued a notice of intent to dismiss the petition, pursuant to Pennsylvania Rule of

            Criminal Procedure 907, on June 8, 2018. The petition was formally dismissed on July 10, 2018,
and petitioner filed a notice of appeal that day. On July 12, 2018, this court ordered petitioner to

file a statement of B-rrors complained of on appeal. Petitioner filed his statement on July 17,

2018.

                                    STATEMENT OF FACTS

        The following facts are reproduced from the trial court's December 24, 2013 opinion:

        These charges arose out of a shooting that occurred on June 17, 2011, in the 5100
        block of C Street in Philadelphia. Prior to that day, Appellant had taken a laptop
        from the decedent, John Claude ("Claude''), also known as "Mo".l Claude and his
        brother, Evan Claude ("Evan'') met Appellant at Appellant's house on or about June
         14, 2011. Claude told Appellant that he wanted his laptop back and a fight ensued
        between Appellant and Claude. Claude got the upper hand in the fight and beat up
        Appellant before Evan separated Appellant and Claude.
        On June 17, 2011, in the evening, Claude, Evan, and Appellant met again. Claude
        and Evan were in a car rented by Evan, when they saw Appellant with a handgun.
        Evan drove down the alley, away from Appellant, and then Claude told Evan to
        stop the car. Claude got out of the car and told Appellant to put the gun down and
        fight him. Appellant fired the gun and Claude turned to run down the alley.
        Appellant fired three (3) times at Claude. Evan ducked to avoid the gunfire and saw
        Claude fall to the ground as he was struck by a bullet in the back of his head. The
        bullet exited the front of Claude's skull and blew out the front of Claude's face on
        the right side. Evan drove around the comer to park and returned moments later to
        find Claude on the ground. Neighbors who witnessed the incident called 911 while
        Evans stayed with Claude.
        At approximately 5:25 p.m., Police Officer Christopher Smith ("Officer Smith")
        and his partner, Officer Gruger, received a radio caJI stating there was a person with
        a gun at C & Albanus Streets. Officers Smith and Gruger arrived to the- scene
        approximately 2 minutes later and noticed a crowd of approximately thirty (30)
        people. Officer Smith noticed a black male, later identified as Claude, lying on the
        ground in a large pool of blood with what appeared to be a gunshot wound to the
        head. Officer Smith described the wound as a "small softball or wiffleball" sized
        hole on the right side near the eye. Officer Gruger told Officer Smith that Claude
        appeared to be breathing so they called over the radio to inform other officers that
        they were transporting Claude to the hospital in their police car. Officers Smith and
        Gruger transported Claude to the nearest hospital, Einstein Medical Center. Claude
        was pronounced dead at 5:42 p.m. on June 17, 2011.
        Based on witness information, an arrest warrant for Appellant was secured by
        Philadelphia.Police Detective Charles Grebolski ("Detective Grebolski") on June
        21, 2011. At approximately 8:30 that evening, Detective Grebolski received
        information that Appellant was on a bus headed to Macon, Georgia. U.S. Marshalls
        were contacted and they arrested a black male at the bus terminal in Georgia who
        matched Appellant's description. The male initially gave a false name of Malik

                                                  2
           Brown but a photo provided by Philadelphia Police revealed· he was in fact,
           Appellant Carl Smith.

                   STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

           Petitioner raised the following issues in his statement of matters complained of on appeal 1:

           1. The PCRA court erred in dismissing Appellant's PCRA Petition without a
           hearing because trial counsel was ineffective for failing to request that the jury be
           charged as to Involuntary Manslaughter, Appellant suffered prejudice, and new trial
           should have been ordered. Am. PCRA Pet., at 4- 7.
           2. The PCRA court erred in dismissing Appellant's PCRA Petition without a
           hearing because trial counsel was ineffective for failing to object to the admission
           of hearsay Prior Bad Acts evidence without Notice including an alleged theft from
           the home of Giovanni Marquez, Appellant suffered prejudice, and new trial should
           have been ordered. Am. PCRA Pet., at 8-9.

                                                   DISCUSSION

           The Post Conviction Relief Act affords collateral relief to those individuals convicted of

crimes they did not commit and to those individuals serving illegal sentences. 42 Pa. C.S. §9542.

Claims pursuant to the PCRA are extraordinary assertions that the judicial system failed; they are

not merely direct appeal claims that are made at a later stage of the judicial proceedings.

Commonwealth v. Rivers, 786 A.2d 923 (Pa. 2001). A petitioner is entitled to file all PCRA

petitions, including second and subsequent petitions within one (1) year from the date his judgment

of sentence becomes final. 42 Pa. C.S. §9545(b)(l); 42 Pa. C.S. §9545(b)(3). A petitioner is

eligible for relief under the PCRA if he proves by a preponderance of the evidence that his

conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.

C.S. §9543(a)(2) (setting forth the eligibility requirements of the PCRA). ·commonwealth v.

Ligons, 971 A.2d 1125 (Pa. 2009).

           A petitioner may be entitled to relief under the PCRA if he is able to plead and prove that

a conviction or sentence resulted from ineffective assistance of counsel which, in the


I
    The following is a verbatim account of petitioner's Statement.

                                                            3
circumstances of the particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. 42 Pa. C.S. §9543(a)(2)(ii). It is the

ineffectiveness claim, not the underlying error at trial, which is reviewed. See Commonwealth v.

Clayton, 816 A.2d 2 l7 (Pa. 2002). Under the PCRA, an allegation of ineffective assistance of

counsel amounts to constitutional malpractice where counsel's incompetence deprived a defendant

of his Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668 (1984);

Commonwealth v. Williams, 782 A.2d 517 (Pa. 2001).

        The law presumes that counsel was effective, and the petitioner carries the burden of

proving otherwise. Commonwealth v. Baker, 614 A.2d 663, 673 (Pa. 1992). To prevail on an

ineffective assistance of counsel claim, a three-pronged test must be satisfied: (1) the underlying

claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action

or inaction; and, (3) but for the errors and omissions of counsel, there is a reasonable probability

that the outcome of the proceedings would have been different. Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987). Furthermore, counsel's choices cannot be evaluated in hindsight, but

rather should be examined in light of the circumstances at that time. See Commonwealth v.

Hardcastle, 701 A.2d 541 (Pa. 1997). Even if there was no reasonable basis for counsel's course

of conduct, a petitioner is not entitled to relief if he fails to demonstrate prejudice.           See

Commonwealth v. Douglas, 645 A.2d 226 (Pa. 1994).

        As the court held in Commonwealth v. Fisher, 813 A.2d 761, 767 (Pa. 2002), "[s]peculation

by hindsight that a different strate$y might possibly have been successful is not the test which

establishes ineffectiveness of counsel." In Strickland v. Washington, 466 U.S. 668, 689 (1984),

the United States Supreme Court instructed that "[a] fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the



                                                   4
circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time."

       Additionally, "where matters of strategy and tactics are concerned, counsel's assistance is

deemed constitutionally effective if he chose a particular course that had some reasonable basis

designed to effectuate his client's interests." Commonwealth v. Howard, 719 A.2d 233, 237 (Pa.

1998). The Court has further declared that "[a] chosen strategy will not be found to have lacked a

reasonable basis unless it is proven 'that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued."' Commonwealth v, Williams, 899 A.2d

1060, 1064 (Pa. 2006) (quoting Howard, 719 A.2d at 237). Indeed, "a claim of ineffectiveness

will not succeed by comparing, in hindsight, the trial strategy trial counsel actually employed with

the alternatives foregone." Commonwealth v. Miller, 987 A.2d 638, 653 (Pa. 2009).

       Petitioner raises two claims ofineffective assistance of counsel. First, petitioner claims that

he suffered prejudice because trial counsel was ineffective for failing to request the jury be charged

on involuntary manslaughter. Here, there was no reasonable basis for an involuntary manslaughter

charge. A defendant commits involuntary manslaughter when he directly causes the death of

another person by reckless or grossly negligent conduct. 18 Pa. C.S.A. § 2504. At trial, petitioner

testified that he fired because he saw the victim approaching him armed with a firearm. N .T.,

3/20/13 at 175-178. Thus, the facts in this case did not support a jury instruction on involuntary

manslaughter. Commonwealth v. Fletcher, 986 A.2d 759, 791 (Pa. 2009). Further, trial counsel

had a reasonable basis for not requesting an involuntary manslaughter charge. At trial, petitioner

raised the defense of justification, and a jury charge on involuntary manslaughter would have

undermined the self-defense claim, and reduced the chance of an outright acquittal. Where counsel

has a reasonable basis for his actions, counsel cannot be ineffective. Commonwealth v. Farmer,



                                                  5
758 A.2d 173 (Pa. Super. 2000) (Internal citations omitted). Indeed, seeking a complete acquittal

does not constitute ineffective assistance unless "no competent lawyer" would have chosen that

course. Id Such is not the case here. Thus, petitioner having failed to satisfy the three prongs of

the test to show prejudice, this claim is meritless. See Pierce, 527 A.2d at 973.

       Next, petitioner claims trial counsel was ineffective for failing to object to the admission

of prior bad acts evidence. The evidence petitioner contends trial counsel should have objected to

is the testimony of decedent's brother concerning a fist fight he and decedent had with petitioner

stemming from the theft of a laptop, after which petitioner stole more items from decedent and his

brother in retaliation. N.T., 3/19/13 at 185-190. The Pennsylvania Rules of Evidence provide:

       (1) Prohibited Uses. Evidence of a crime; wrong, or other act is not admissible to
       prove a person's character in order to show that on a particular occasion the person
       acted in accordance with the character.
       (2) Permitted Uses. This evidence may be admissible for another purpose, such as
       proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
       of mistake, or lack of accident. In a criminal case this evidence is admissible only
       if the probative value of the evidence outweighs its potential for unfair prejudice.
       (3) Notice in a Criminal Case. In a criminal case the prosecutor must provide
       reasonable notice in advance of trial, or during trial if the court excuses pretrial
       notice on good cause shown, of the general nature of any such evidence the
       prosecutor intends to introduce at trial.

Pa. R.E., Rule 404. Here, the evidence was properly admitted, not to show defendant's propensity

to commit crime, but as evidence of motive, which is a permissible use of prior bad acts evidence.

        Despite petitioner's contention, the Commonwealth provided notice by including this

evidence in the affidavit of probable cause as well as in the discovery materials. Additionally, trial

counsel's strategic decision not to object to this evidence had a reasonable basis. The prior bad

acts evidence placed the victim in a poor light, which this court concluded was a reasonable basis

for not objecting to the evidence. N.T., 6/8/2018 at 9. Furthermore, petitioner has failed to prove




                                                  6
prejudice. The Commonwealth's case against him was overwhelming, and even without the prior

bad acts evidence, the same verdict would have resulted.

       Finally, petitioner's argument that he is entitled to an evidentiary hearing to adjudicate his

ineffective assistance of counsel claims is baseless. A PCRA petitioner is not entitled to an

evidentiary hearing as a matter of right, and only receives one if there are genuine issues of

arguable merit. Commonwealth v. Keaton, 45 A.3d 1050, 1094 (Pa. 2012); see also Pa.R.Crim.P.

Rule 907 ("If the judge is satisfied from this review that there are no genuine issues concerning

any material fact and that the defendant is not entitled to post-conviction collateral relief, and no

purpose would be served by any further proceedings, the judge shall give notice to the parties of

the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.")

Here, petitioner did not raise a single claim of arguable merit.

       Accordingly, for the foregoing reasons the dismissal of the PCRA petition should be

AFFIRMED.



                                                              BY THE COURT:




                                                 7
