J. S71043/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
                                             :
JAVIER S. CRUZ-ECHEVARRIA,                   :
                                             :
                          Appellant          :     No. 1942 MDA 2013


                  Appeal from the PCRA Order October 3, 2013
               In the Court of Common Pleas of Lycoming County
               Criminal Division No(s).: CP-41-CR-0000615-2007

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED NOVEMBER 25, 2014

        Pro se Appellant, Javier S. Cruz-Echevarria, appeals from the order

entered in the Lycoming County Court of Common Pleas dismissing his first

Post Conviction Relief Act (“PCRA”) petition. He raises various allegations of

trial court error and trial counsel’s ineffectiveness.1    We affirm the order,

deny Appellant’s motion for remand, and deny Appellant’s application for an

order to compel as moot.

        We state the facts as set forth by a prior panel of this Court:




*
    Former Justice specially assigned to the Superior Court.
1
    The Commonwealth did not file a brief.
J. S71043/14


           [S]ince we write for the sole benefit of the parties, it
           suffices here to reiterate (1) that [A]ppellant was alleged
           to have conspired with Sean Durrant and Maurice
           Patterson to murder Eric Sawyer, (2) that in the early
           morning hours of March 31, 2007, Durrant and [A]ppellant
           met Sawyer in an alleyway in Williamsport, Pennsylvania,
           and (3) that Durrant shot and killed Sawyer with a shotgun
           in that alleyway.     Moments after the shooting, patrol
           officers from the Williamsport Police Department spotted
           [A]ppellant and Durrant driving out of the alleyway in a
           vehicle operated by [A]ppellant. After the officers signaled
           for [A]ppellant to stop, [A]ppellant complied and was
           detained without incident. Durrant fled from the vehicle,
           but was apprehended shortly thereafter.

               Durrant subsequently confessed to the police that he
           killed Sawyer and negotiated an agreement under which
           the Commonwealth accepted his plea of guilty to a charge
           of murder of the third degree on the condition that he
           testify against [A]ppellant. Appellant proceeded to a jury
           trial on charges of murder of the first degree and
           conspiracy, and Durrant testified on behalf of the
           Commonwealth.[2] The jury, on May 14, 2008, found


2
    During his testimony, the following exchange transpired:

           [COUNSEL FOR THE COMMONWEALTH]: Mr. Durrant, what
           was the real reason why Eric Sawyer was killed?

           [DURRANT]: The real reason why Eric Sawyer was killed
           was because [Appellant] and Maurice Patterson had some
           problems with Eric. Maurice Patterson came on, was trying
           to fuck Eric’s girlfriend, and she told Eric about it, and he
           went back — Sawyer went and approached Patterson
           about it and told him that he was going to hurt him, fuck
           him up, if he come around his wife, his girl again. And
           [directed to Appellant] — you motherfucker! Man is dead
           for you lying!

           [COUNSEL FOR APPELLANT]: Your Honor, I would request
           —




                                       -2-
J. S71043/14


         [A]ppellant guilty of all charges, and the trial court
         immediately sentenced [A]ppellant to serve two concurrent
         terms of life imprisonment.

Commonwealth v. Cruz-Echevarria, 1930 MDA 2008, slip op. at 1-2 (Pa.

Super. Mar. 4, 2011) (unpublished memorandum) (footnote omitted).           On

direct appeal, Appellant argued, inter alia, that the trial court erred by not

granting a mistrial following Durrant’s emotional outburst.    Id. at 3.   This

Court affirmed the convictions, but vacated Appellant’s sentence for

conspiracy, and remanded for resentencing. Id. at 27. Our Supreme Court

denied Appellant’s petition for allowance of appeal on September 12, 2011.

Commonwealth v. Cruz-Echevarria, 256 MAL 2011 (Pa. Sept. 12, 2011).




         [DURRANT]: The boy’s mother got to sit here and go
         through this again!

         THE COURT: Sir, sir, you can’t give an answer unless
         people are asking you a question.

         [COUNSEL FOR APPELLANT]: I would request two things. I
         would request a recess and I’d also like to make a motion.

         THE COURT: Sure. Okay, ladies and gentlemen, what we’ll
         do is take our mid-afternoon recess at this time, so if you’d
         please put your note pads —

         [DURRANT]: I asked you twice —

         THE COURT: Mr. Durrant, Mr. Durrant, please do not say
         another word . . . .

Commonwealth v. Cruz-Echevarria, 1930 MDA 2008, slip op. at 4-5 (Pa.
Super. Mar. 4, 2011) (unpublished memorandum) (quoting trial transcript).




                                     -3-
J. S71043/14


       Appellant, pro se, filed the instant, timely PCRA petition on June 11,

2012. Counsel was appointed, who did not file an amended PCRA petition.

On August 30, 2013, the PCRA court issued a Pa.R.Crim.P. 907 notice. On

October 3, 2013, the PCRA court dismissed Appellant’s petition. On October

17, 2013, Appellant filed a pro se response in opposition to the Rule 907

notice and seeking to waive counsel.         On October 25, 2013, the court

ordered that Appellant’s pro se filing be forwarded to counsel for further

action. Appellant’s counsel filed a timely notice of appeal on November 1,

2013, and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

       Appellant’s counsel filed a petition to withdraw with this Court on

February 27, 2014. This Court remanded to have the PCRA court conduct a

Grazier3 hearing.         On April 23, 2014, the PCRA court granted counsel

permission to withdraw and for Appellant to represent himself pro se.

Meanwhile, on April 21, 2014, Appellant filed with this Court a pro se motion

to remand this matter to the PCRA court to permit him to raise additional

issues. We note that the motion essentially reiterates the arguments raised

in his appellate brief.

       Pro se Appellant raises the following issues:

          Whether the trial court erred in denying Appellant’s PCRA
          petition where trial counsel failed to object when court
          improperly expressed to the jury its opinion that
          commonwealth witness Sean Durrant (who by his own

3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).




                                       -4-
J. S71043/14


           admission killed Eric Sawyer) and [Appellant] were
           accomplices in the murder of Eric Sawyer, thereby
           communication to jury [Appellant] was guilty?

           Whether the trial court erred in denying Appellant’s PCRA
           petition where trial counsel failed to pursue “revenge
           theory” on cross examination to impeach Commonwealth
           witness Sean Durrant, thereby exposing to jury his
           motives to testify falsely?

           Whether the trial court erred in denying Appellant’s PCRA
           petition where trial counsel failed to request a cautionary
           or limiting instruction from the trial court following a
           prejudicial   outburst    from      Sean    Durrant,    the
           Commonwealth’s principal witness?

Appellant’s Brief at 2.

      We summarize Appellant’s arguments for all of his issues.            He

contends the trial court improperly opined to the jury that Appellant was an

accomplice. Trial counsel, Appellant suggests, should have objected to the

court’s opinion and moved for a mistrial. Appellant insists that trial counsel

was ineffective by not pursuing a “revenge theory” when cross-examining

Durrant.     Finally, Appellant argues trial counsel was ineffective by not

requesting a limiting or cautionary instruction after Durrant’s emotional

outburst while testifying. We hold Appellant is due no relief.

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008).

           [C]ounsel is presumed to have provided effective
           representation unless the PCRA petitioner pleads and


                                      -5-
J. S71043/14


        proves that: (1) the underlying claim is of arguable merit;
        (2) counsel had no reasonable basis for his or her conduct;
        and (3) Appellant was prejudiced by counsel’s action or
        omission. To demonstrate prejudice, an appellant must
        prove that a reasonable probability of acquittal existed but
        for the action or omission of trial counsel. A claim of
        ineffective assistance of counsel will fail if the petitioner
        does not meet any of the three prongs. Further, a PCRA
        petitioner must exhibit a concerted effort to develop his
        ineffectiveness claim and may not rely on boilerplate
        allegations of ineffectiveness.

Commonwealth       v.   Perry,   959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation marks and citations omitted).

     After careful review of the record, Appellant’s brief, and the well-

reasoned decision by the Honorable Nancy L. Butts, we affirm on the basis of

the PCRA court’s opinion. See PCRA Ct. Op., 8/30/13, at 2-8 (holding: trial

court recited standard jury instruction for accomplice testimony; our

Supreme Court previously held in Commonwealth v. Williams, 863 A.2d

505 (Pa. 2000), that such jury instruction did not imply defendant was

accomplice; Appellant’s trial counsel impeached Durrant via multiple lines of

cross-examination and Durrant admitted having motive to testify against

Appellant for revenge; and Superior Court, on direct appeal, held Durrant’s

outburst was not prejudicial).   Accordingly, having discerned no trial court

error or trial counsel ineffectiveness, we affirm the order below. See Perry,

959 A.2d at 936.

     Order affirmed.    Appellant’s motion for remand denied.        Appellant’s

application for an order to compel denied as moot.



                                       -6-
J. S71043/14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014




                          -7-
                                                                                  Circulated 11/06/2014 12:45 PM




 IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

 COMMONWEALTH OF PE~o/~X,L Y;\NIA.                           ..... : I
        v.                                                               No. 615-CR-2007
                                                                                               /
                                          ,   Ci"
                                                    , .) )               CRIMINAL DIVISION
JAVIER CRUZ-ECHEVARIUA,
          Defendant  ,,                                                  APPEAL
                                   r;i

      OPINION IN SUPPORT OF ORDER IN COMPLIANCE WITH RULE 1925(a)
                 OF THE RULES OF APPELLATE PROCEDURE


        On June 13,2012, the Defendant filed a Post-Conviction Relief Act (PCRA) Petition.

This Court appointed Julian Allatt, Esq. to represent the Defendant on his Petition. On February

26,2013, the Defendant filed a Motion to Waive Counsel. On May 14,2013, at the time of the

Grazier Hearing, the Defendant withdrew his Motion to Waive Counsel on the record and an

additional PCRA conference was scheduled.

        On July 23,2013, Attorney Allatt filed an amended PCRA Petition. The Petition alleged

three (3) issues: I) whether trial counsel was ineffective for failing to object when the Court

improperly expressed that DUll'ant and the Defendant were accomplices; 2) Whether trial """M"!

was ineffective for failing to pursue a "revenge theory" on cross examination to impeach

Durrant; and 3) whether trial counsel was ineffective for failing to request a cautionary or

limiting instruction from the trial court following DUll'ant's outburst.

       On August 30, 2013, this Court proposed the dismissal of the Defendant's PCRA Petition!

for failing to allege an issue with merit and gave him twenty (20) days to file an objection. After

receiving no response by the Defendant, this COUli dismissed the PCRA Petition on October 3,

2013 and notified the Defendant of his right to appeal. On October 28,2013, the Defendant filed,
                                                                      Circulated 11/06/2014 12:45 PM




pro se Objections to Notice ofIntent to Dismiss, which this COUli did not have jurisdiction to

consider since the PCRA Petition had already been dismissed.

         On November I, 2013, Attorney Allatt filed a Notice of Appeal on behalf of the

Defendant. On November 15,2013, this Court directed the Defendant to file a concise statement

of matters complained of on appeal. The Defendant raised the same three issues previously

addressed by this COUli in the proposed dismissal of his PCRA Petition.

        Therefore, for purposes of this Opinion, the Court will rely on its Opinion and Order

dated August 30, 2013, which found that the Defendant's PCRA Petition lacked merit.




                                                            By the Court,



                                                           Mrjl;t«~-
                                                            Nancy L. Butts, Preside I t Judge


xc:   A
      . Julian Allatt, Esq.




                                                2
                                                                          Circulated 11/06/2014 12:45 PM




     IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

    COMMONWEALTH OF PENNSYLVANIA,                                                       /
                                                               No. CR-61S-2007
             v.
                                                               CRIMINAL DIVISION
    JAVIER CRUZ-ECHEVARRIA,
              Defendant                                        PCRA


                                        OPINION AND ORDER
                                                                          , i:     »             ~-i     ;

             Javier Cruz-Echevarria (Defendant) was charged with criminaJI'Ip.l~lici~ and Criminal
                                                                           r~:    .f=
    Conspiracy to Commit Homicide? It was alleged that on March 31, 2007, the Igefend!1ll1 "'I

    conspired with Sean Durrant (Durrant) and Maurice Patterson (Patterson) to murder Eric Sawyer.

    The Defendant and Durrant met Sawyer in an alleyway and Durrant shot and killed Sawyer with

    a sawed-off shotgun. As part of the Commonwealth's evidence against the Defendant, Durrant

    testified as to the Defendant's involvement in the homicide. On May 14,2008, following a jury

    trial before this Court, the Defendant was found guilty of both charges. The Defendant was

sentenced to Count I First Degree Murder to a State Correctional Institution for life without the

possibility of parole. In addition, the Defendant received another concurrent life term of

imprisonment for Count 2 Criminal Conspiracy to Commit Homicide.

            On May 27, 2008, the Defendant filed Post-Sentence Motions, which included the issues

of whether the Court erred in ruling that the Commonwealth could proceed on accomplice

liability theory as to the Defendant and whether the COlllt erred in refusing a mistrial based upon

Sean Durrant's outburst. On March 4, 2011, the Superior Court of Pennsylvania upheld the

Defendant's conviction but found that the Detlmdant' sentence on the Conspiracy charge was

beyond the maximum sentence. On December II, 2012, the Defendant was re-sentenced by the



I   18 Pa.C.S. §250 I.
2   18 Pa.C.S. § 903 (a)( I).


                                                                                            ., ) " ?'"       "/
                                                                          Circulated 11/06/2014 12:45 PM




 Com1 and he received a concurrent twenty (20) to forty (40) years of imprisomnent for the

 charge of Criminal Conspiracy.

        On June 13,2012, the Defendant filed a Post-Conviction Relief Act (PCRA) Petition.

This COUli appointed Julian Allatt, Esq. to represent the Defendant on his Petition. On February

26,2013, the Defendant filed a Motion to Waive Counsel. On May 14,2013, at the time of the

Grazier Hearing, the Defendant withdrew his Motion to Waive Counsel on the record and an

additional PCRA conference was scheduled.

        On July 23,2013, Attorney Allatt filed an amended PCRA Petition. The Petition alleged

three (3) issues: 1) whether trial counsel was ineffective for failing to object when the Court

improperly expressed that Durrant and the Defendant were accomplices; 2) Whether trial counsel

was ineffective for failing to pursue a "revenge theory" on cross examination to impeach

Durrant; and 3) whether trial counsel was ineffective for failing to request a cautionary or

limiting instruction f!'om the trial court following Durrant's outburst. For the following reasons,

the Court finds that the Defendant's PCRA Petition is without merit.


Whether trial coul/sel was ineffective for failillg to object whe/l the trial court improperly
expressed to the jury its opilliol/ that Durral/t al/d the Defelldal/t were (lccomplices

        The Defendant alleges that the Court improperly characterized Durrant and the Defendant

as accomplices. To make a claim for ineffective assistance of counsel, a defendant must prove

the following: (I) an underlying claim of arguable merit; (2) no reasonable basis for counsel's

act or omission; and (3) prejudice as a result, that is, a reasonable probability that but for

counsel's act or omission, the outcome of the proceeding would have been different.

Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007) (citing Commonwealth v. Carpenter,

725 A.2d 154, 161 (1999)). A failure to satisfy any prong of this test is fatal to the




                                                  2
                                                                        Circulated 11/06/2014 12:45 PM




ineffectiveness claim. Cooper, 941 A.2d at 664 (citing Commonwealth v. Sneed, 899 A.2d 1067,

1076 (2006)). FUliher, Counsel is presumed to have been effective. Id.

       "It is well-settled that where an accomplice implicates the defendant, the trial cOUli

should instruct the jury that the accomplice is a corrupt and polluted source whose testimony

should be considered with caution." Commonwealth v. Busanet, 54 A.3d 35, 70 (Pa. 2012); see

generally Commonwealth v. Maisonet, 31 A.3d 689 (Pa. 2009). The Defendant points to a small

section of the jury instmction, however, a broader and complete review of the transcript is

necessary:

       Before I begin these instructions let me define for you the term accomplice. I basically
       done it for you, but I wanted you to have this instruction as well to keep in your mind. A
       person is an accomplice of another person in the commission of a crime if he or she has
       the intent or is promoting or facilitating the commission of the crime, and one, solicits the
       other person to cOll1ll1it it; or two, aids or agrees or attempts to aid such other person in
       planning or committing the crime. Put simply an accomplice is a person who knowingly
       and voluntarily cooperates with or aids another person in committing an offense. When a
       Commonwealth witness is an accomplice, his or her testimony has to be judged by
       special precautionary mles. Experience shows that an accomplice when caught may
       often try to place the blame falsely on someone else. He may testify falsely in the hope
       of obtaining favorable treatment or for some conupt or wicket motive. On the other
      hand, an accomplice may be a perfectly truthful witness. The speciall'llles that I will
      YOIl are meant to help YOIl distingllish between trllthfiil andfalse accomplice testimony.
      In view of the evidence ofSean Durrant's criminal involvement YOIl must regard him as
      an accomplice in the crimes charged and apply the !.pecial rules to his testimony. You
      must decide whether Sean Dun'ant was-strike that. Use this test to determine whether
      Sean Durrant was an accomplice. Well, I'm telling you that he was. I'm sorry, I'm
      reading something here I should read to you. He is an accomplice based upon what you
      heard. These are the special rules that apply to accomplice testimony. First, you should
      view the testimony of an accomplice with disfavor because it comes from a corrupt and
      polluted source. Two, you should examine the testimony of an accomplice closely and
      accept it only with care and caution. Three, you should consider whether the testimony
      of an accomplice is suppOlied in whole or in pati by other evidence. Accomplice
      testimony is more dependable ifit's suppOlied by independent evidence. However, even
      ifthere is no independent supporting evidence you may still find the Defendant guilty
      solely Oil the basis of an accomplice testimony if after using the special rules I just told
      you about you are satisfied beyond a reasonable doubt that the accomplice testified
      truthfully and the Defendant is guilty.




                                                3
                                                                              Circulated 11/06/2014 12:45 PM




N.T., May 14,2008, p. 84-86 (emphasis added). In full context, the Court was stating that due to

Durrant's relationship with the Defendant his testimony should be considered with caution or

from a corrupt and polluted source.

        These standard jury instructions have already been detennined to be adequate by the

Supreme Court of Pennsylvania. See Pa.SSJI (crim) 4.01. In Williams, the trial cOUli instructed

the jury with the following instruction:

        When a Commonwealth witness was so involved in the crime charged that he was an
        accomplice, his testimony has to be judged by certain precautionary rules.

        ***
        In view of the evidence of Marc Draper's criminal involvement, you must regard him as
        an accomplice in the crimes charged and apply the special rules to his testimony. These
        are the special rules that apply in accomplice testimony: First, you should view the
        testimony of an accomplice with disfavor because it comes liOln a conupt and polluted
        source ....

Commonwealth v. Williams, 863 A.2d 505, 519 (Pa. 2000). The Supreme COUli found that the

instruction did not imply that the defendant was an accomplice but that the witness's statements

were coming liOln a corrupt source. rd.

        Here, the standard instruction adequately and accurately conveyed that Dunant's

testimony was coming from a conupt source. FUliher, as in Williams, the instruction did not

imply that the defendant was an accomplice with Durrant. Accordingly, this Court finds that

trial counsel was not ineffective for failing to object to the instruction.


Whethel' tl'iat cOlli/set was ineffective fOl'failing pUl'sue a "I'evenge theol'Y" on CI'OSS
examination to impeach DlIl'l'ant

       The Defendant alleges that trial counsel was ineffective for failing to impeach Durrant on

the theory that he was seeking revenge against the Defendant by testifYing. The Defendant cites

Collins, where a witness identified the defendant as the shooter. COll1l11onwealth v. Collins, 545



                                                   4
                                                                          Circulated 11/06/2014 12:45 PM




 A,2d 882 (Pa. 1988). In that case defense counsel did not impeach the witness on the fact that

 her son has been convicted and imprisoned for the shooting death of the defendant's cousin. The

 Supreme Court of Pennsylvania found that counsel was not ineffective because there were

 reasonable reasons not impeach the witness, including introducing motive for the defendant's

 shooting.

        Here, the Defendant argues that there was no reasonable reason not to impeach Durrant

on his motive tor testifying and therefore trial counsel was ineffective. Trial counsel sought to

impeach Durrant through many routes. First, defense counsel cross-examined Durrant about

how his statements changed to police and how he first stated that the Defendant was not

involved. N.T., May 8, 2008, p. 133-34, 157-61. Second, DU11'ant was questioned about

inconsistencies with his stories and evidence obtained by police. Id. at 167; N.T., May 9, 2008,

p. 4-6. Third, defense counsel questioned Durrant on whether his motive for testifying was

because of the plea agreement he received from the Commonwealth. N.T., May 9, 2008, p.12-

20. Finally, defense counsel elicited statements by Durrant on his motive to testify, which was

because the Defendant lied to him about why the victim needed to be killed. N.T., May 8, 2008,

p.136, 148, 162;N.T., May9,2008,p.11-12, 14, 15,16,18-19. Durrant testified that he killed

the victim because he believed he was cooperating with police. After the homicide Durrant

learned that Patterson and the Detlmdant lied to him and the reason they wanted the victim killed

was because the victim had threatened Patterson for hitting on his girlfriend.

       Based on the entire record, the Court finds that defense counsel was reasonable in his

approach to impeaching Durrant mostly on his plea agreement. "A decision by counsel not to

take a particular action does not constitute ineffective assistance if that decision was reasonably

based, and was to the result of sloth or ignorance of available alternative." Collins, 545 A.2d at

886. Defense counsel's theory during trial and closing argument was that Durrant initially stated


                                                 5
                                                                          Circulated 11/06/2014 12:45 PM




 the truth when he told police that the Defendant was not involved in the shooting. Further, the

 theory was that Durrant believed he was going to win a suppression issue and after he learned

 that he would not sought to get a plea offer by lying and testifying against the Defendant. The

revenge theory that the Defendant now claims should have been used to impeach Durrant would

have conflicted with the plea agreement theory.

        In addition, Durrant constantly referenced that he was testifying because the Defendant

lied to him and the victim's mother should hear the truth. The revenge theory sought by the

Defendant was freely testified to by Durrant during trial. The Court fUliher finds that there is not

a reasonable probability that the outcome of the proceeding would have been different if trial

counsel would have impeached Durrant more on a "revenge theory" than the theory which was

used.


 Whether trial cou11selwas illeffective /or/aili11g to request a cautio11ary 01' limitillg i11stmction
/1'0111 the trial cOllrt/ol/owillg Durra11t's outburst

        The Defendant contends that trial counsel was ineffective because he did not request a

limiting instruction following Dunant's outburst. The relevant portion of the transcript states:

        COMMONWEALTH:                  Mr. Durrant, what was the real reason why Eric Sawyer
                                       was killed?

        DURRANT:                       The real reason why Eric Sawyer was killed was because
                                       Javier Cruz and Maurice Patterson had some problelms
                                       with Eric. Maurice Patterson came on, was trying to fuck
                                       Eric's girlfriend, and she told Eric about it, and he went
                                       back - Sawyer went and approached Patterson about it and
                                       told him that he was going to hmi him, fuck him up, if he
                                       came around his wife, his girl again. And - you
                                       motherfucker! Man is dead for you lying!

        TRAVIS:                        Your Honor, I would request-

        DURRANT:                       The boy's mother got to sit here go tln'ough this again!




                                                  6
                                                                         Circulated 11/06/2014 12:45 PM




        COURT:                         Sir, sir, you can't give an answer unless people are asking
                                       you a question.

        TRAVIS:                        I would request two things. I would request a recess and
                                       I'd also like to make a motion.

        COURT:                        Sure. Okay, ladies and gentlemen, what we'll do is take
                                      our mid-afternoon recess at this time, so if you'd please put
                                      your note pads -

       DURRANT:                       I asked you twice-

       COURT:                         Mr. Durrant, Mr. Durrant, please do not say another word.
                                      Please put your pads and your pens back in your folders
                                      and slide them under your chairs. Everyone else please
                                      remain seated. Ladies and gentleman of the jury, if you
                                      would follow Mr. Walker he will take you back to the
                                      jurors' lounge.

N.T., May 8, 2008, p. 104-06. Defense counsel did not request a limiting instruction but made a

motion for mistrial. The Court found that the manner Durrant testified was relevant to his

credibility, similar to a witness crying, and denied the motion. Id. at 109, Ill.

       Here, the there is no reasonable probability that but for defense counsel failing to request

a limiting instruction, the outcome of the proceeding would have been different. The

information provided in the outburst was testified to by Durrant numerous times during the trial.

Durrant repeated many times that the Defendant had lied to why the victim needed to be killed

and that the victim's mother deserved to know the truth. The only distinguishing characteristic

of this testimony was the volume and not the substance.

       Further, the Superior Court of Pennsylvania addressed the prejudice caused by Durrant's

outburst. The Superior COUli found that the outburst did not change the outcome of the

proceeding:

       Following our review of the record, we detect no basis upon which to disturb the
       conclusion of the trial court that neither Durrant's outburst, nor the comments by counsel
       for the Commonwealth, were so prejudicial as to require the declaration of mistrial. See
       gel/erally: COI1l1ll0I/We(/!tlt v. Kil/g, 959 A.2d 405, 418 CPa. Super. 2008). Moreover,


                                                 7
                                                                       Circulated 11/06/2014 12:45 PM




       our conclusion in this regard is bolstered by the properly admitted testimony given by
       Durrant as to the pmticipants in, and nature of, the conspiracy to kill Sawyer, as well as
       the objective evidence presented by the Commonwealth to corroborate the testimony that
       appellant had patticipated in planning the murder of Sawyer and abetted Durrant in the
       accomplishment of that plan. In short, we conclude that the evidence of appellant's guilt
       was ovetwhelming, and that any prejudice attendant the witness's outburst and
       subsequent comments by counsel for the Commonwealth did not prevent the jUly from
       weighing the evidence fairly and rendering a verdict. Consequently, we agree with the
       trial court that appellant was not entitled to a mistrial based upon Durrant's outburst or
       the comments by counsel for the Commonwealth during closing arguments.

CommonweatIh v. Cruz-Echevarria, No. 1930 MDA 2008, slip op. (Pa. Super. March 4, 2011).

The Court finds that any prejudice from the outburst would not have changed the outcome of the

proceeding. See also Commonwealth v. King, 57 A.3d 607, 624-25 (Pa. 2012).



                                            ORDER


       AND NOW, this         -'lg~f        August, 2013, the Defendant is notified that it is the

intention of the COUlt to dismiss the Defendant's PCRA petition because it does not raise a

genuine issue concerning any material fact. The Court will dismiss Defendant's claim unless

Defendant files an objection to that dismissal within twenty days (20) oftoday's date.




                                                           /               Urx~
                                                            Nancy L. Butts, PtVsidcnt udge



      V
xc:   ~en   Osokow, Esq.
       Julian Allatt, Esq.




                                               8
