J-S33027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

SOPHANA SOVANN

                            Appellant                   No. 1230 EDA 2014


                    Appeal from the PCRA Order April 4, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012793-2008


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

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 17, 2016

       Sophana Sovann appeals from the trial court’s order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.1 After careful review, we affirm.

       On January 14, 2010, Sovann was found guilty by a jury of third-

degree murder, criminal conspiracy, and firearms not to be carried without a

license.    He was sentenced to an aggregate term of 30-60 years of

incarceration.

       The trial court aptly set forth the facts of the case as follows:

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1
 The standard of review of an order denying a PCRA petition is whether that
determination is supported by the evidence of record and is free of legal
error. The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.    Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).
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           On July 27, 2008, [the victim], Ratseiey Yun, also known
     as K9, and Appellant resided on the same block of South 15th
     Street with his family two houses away in Philadelphia, PA. N.T.
     1/6/10, at 171 -72, 175; N.T. 1/11/10, at 67. Appellant testified
     that at the age of twelve (12) he was forced to become a
     member of a neighborhood gang called the TRGs and that he
     and Yun were brothers in the gang. N.T. 1/11//10, at 68 -71, 73.
     At some point at the end of 2007[,] Appellant told Yun that he
     no longer wanted to be in the gang or be a party to what Yun
     was doing and didn't want to become like Yun. Id. at 73.
     Appellant stated that this angered Yun and that Yun kidnapped
     his younger brother and shot gunfire at his home to persuade
     Appellant to return to the gang. Id. at 73, 79-80. Later, Yun
     began harassing Appellant and demanded that Appellant give
     him money. Id. at 76 -77. In an effort to stop Yun's conduct,
     Appellant obtained handguns from a male known to him as
     ‘Bayah’, and the two males, along with Johnny Un and co-
     defendant Ricky Chhea went looking for Yun to confront him.

     Appellant, armed with a .45 caliber handgun and Chhea with a
     .25 caliber handgun, instructed Un to find Yun. He further
     instructed Un to tell Yun that Appellant had the money Yun
     demanded and to meet Appellant around the corner from their
     homes. N.T. 1/6/10, at 151. When Yun arrived at the designated
     meeting place he asked Appellant where the money was, and
     Appellant and Chhea began firing their weapons at Yun. [] In
     total, sixteen (16) shots were fired by Appellant and Chheas'
     weapons, hitting Yun in the chest, stomach, and torso. N.T.
     1/7/10, at 23[;] N.T. 1/8/10, at 67, [] 71-72; N.T. 1/6/10, at
     73-74.

     After the shooting Yun was able to get himself back to the front
     of his house where he told his mother that Appellant shot him.
     N.T. 1/6/10, at 171-72. The police arrived shortly thereafter and
     Yun also stated to Philadelphia Police Officer James Dougherty
     that Appellant shot him. Yun was then transported to Jefferson
     Hospital where he died from the injuries sustained during the
     shooting. Id. at 80.

     Before being transported to the hospital, Yun pointed out where
     Appellant lived to Officer Dougherty who went to that location
     and arrested the Appellant. Appellant was transported to police
     headquarters where he cooperated with officers and gave them
     an inculpatory statement admitting that he and his co-
     defendant, Chhea, shot Yun. He explained that Yun had been

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       threatening him and demanding money, and that Yun had been
       harassing Appellant's family. Appellant further stated that he
       intended to kill Yun. Appellant’s co-defendant also gave a
       statement to police admitting that he and Appellant shot and
       killed Yun. Id. at 111-13.

Trial Court Opinion, 11/12/14, at 2-3.

       At trial, Sovann offered the defense that he acted “in the heat of

passion”2 when he shot the victim in retaliation for the victim having

kidnapped his brother, Seary, six months earlier.3             Sovann filed an

unsuccessful direct appeal and petition for allowance of appeal.

       On September 1, 2010, while represented by counsel, Sovann filed the

instant PCRA petition pro se.         Several new attorneys were appointed from

2011 through 2014 to represent Sovann on his PCRA petition.            Many of

these lawyers were seemingly permitted to withdraw, although the record is

unclear on this issue.       The court dismissed Sovann’s petition on April 4,

2014. Sovann filed a timely pro se appeal from the dismissal of his PCRA

petition. As a result of the “abject failure” of attorneys to take any action on

____________________________________________


2
  A person is guilty of “heat of passion” voluntary manslaughter if, at the
time of the killing, he reacted under a sudden and intense passion resulting
from serious provocation by the victim. Commonwealth v. Miller, 987
A.2d 638 (Pa. 2009) (quoting Commonwealth v. Ragan, 743 A.2d 390,
396 (Pa. 1999)). The “heat of passion” encompasses emotions such as
anger, rage, sudden resentment or terror, which renders the mind incapable
of reason. Commonwealth v. Browdie, 671 A.2d 668, 671 (Pa. 1996).
3
  The victim, Sovann, and his younger brother, Seary, were all involved in
local gangs. The victim allegedly kidnapped Seary to coerce Sovann to
rejoin the victim’s gang.




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behalf of Sovann, our Court remanded the case for a Grazier4 hearing to

determine whether Sovann wished to proceed pro se in this collateral

appeal. Commonwealth v. Sovann, 1230 EDA 2014 (filed July 23, 2015)

(Pa. Super. 2015) (memorandum decision). On remand, the court held the

Grazier hearing and determined that “counsel had not abandoned Appellant

and that Appellant does not wish to proceed pro se, but, rather, desires

counsels’ continued representation.”             Grazier Hearing Determination,

9/1/15.      Accordingly, the court ordered Todd Michael Mosser, Esquire, to

continue to represent Sovann on appeal. Id.

       In his counseled brief, Sovann presents the following two issues for

our consideration:

       (1)    Did the PCRA court err by holding that trial counsel was
              not ineffective for failing to present crucial defense
              testimony?

       (2)    Was PCRA counsel ineffective for failing to properly
              present the claim of trial counsel’s ineffectiveness?

       With respect to claims of ineffective assistance of counsel, we begin

with the presumption that counsel is effective. Commonwealth v. Spotz,

47 A.3d 63, 76 (Pa. 2012).             To prevail on an ineffectiveness claim, a

petitioner must plead and prove, by a preponderance of the evidence, three

elements:      (1) the underlying legal claim has arguable merit; (2) counsel

had no reasonable basis for his or her action or inaction; and (3) the

____________________________________________


4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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petitioner suffered prejudice because of counsel's action or inaction.        Id.

(citation omitted).    Moreover, to prevail on a claim of trial counsel's

ineffectiveness for failure to call a witness, a defendant must show:

       (1) that the witness existed; (2) that the witness was available;
       (3) that counsel was informed of the existence of the witness or
       should have known of the witness’s existence; (4) that the
       witness was prepared to cooperate and would have testified on
       appellant’s behalf; and (5) that the absence of the testimony
       prejudice appellant. Commonwealth v. Fletcher, [] 750 A.2d
       261 (2000). Thus, trial counsel will not be found ineffective for
       failing to investigative or call a witness unless there is some
       showing by the appellant that the witness’s testimony would
       have been helpful to the defense. Commonwealth v. Auker, []
       681 A.2d 1305, 1319 (1996).

Commonwealth v. Brown, 767 A.2d 576, 581-82 (Pa. Super. 2001).

       Instantly, Sovann claims that his brother, Seary, should have been

called as a witness at his trial to corroborate Sovann’s story that he killed

the victim because the victim had kidnapped Seary. This testimony, Sovann

contends,   was    crucial   to   his   defense   and   supported   a   voluntary

manslaughter conviction rather than a first or third-degree murder verdict.

       Attached to Sovann’s PCRA petition is a signed statement from Seary

explaining that he was willing to testify that the victim had kidnapped him

and held him hostage. Thus, three of the Brown prongs for ineffectiveness

have been proven. The crux of the matter in this case, therefore, is whether

the absence of Seary’s testimony prejudiced his brother. We conclude it did

not.




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      First, as the Commonwealth points out, Sovann’s sister, Sopheap,

testified in detail about how she recovered her younger brother, Seary, who

had been kidnapped by the victim and held in exchange for Sovann. N.T.

Jury Trial, 1/11/10, at 37-51. She explained how the victim contacted her

to arrange a transfer of Seary for Sovann and how she rescued Seary from a

house at 5th and Tasker, without the victim knowing, after Seary had been

missing from her family home for over a day. Therefore, Seary’s testimony

about his being kidnapped would have been cumulative of his sister’s

testimony. Commonwealth v. Meadows, 787 A.2d 312, 320 (Pa. 2001).

      Second, at the time of trial, Seary was housed in a juvenile delinquent

facility, having been arrested on a gun charge.        We find that it was

reasonable for counsel to choose to have Sopheap testify, rather than Seary,

where the jury would likely find Sopheap more credible than her brother.

Meadows, supra.

      Third, the fact that the kidnapping occurred six months prior to the

instant shooting negates any heat of passion defense to support a

manslaughter verdict. Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa.

2012) (whether provocation by victim sufficient to support heat of passion

defense is determined by an objective test; if there is “time to cool, and

reason has resumed its sway, the killing will be murder.”).

      Therefore, under the facts of this case Sovann was not prejudiced by

counsel’s failure to present his brother’s testimony at trial where: (1) the

testimony was cumulative of his sister’s testimony regarding Seary being

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kidnapped by the victim; (2) Seary’s credibility would have been a factor for

the jury where he was being housed in a juvenile detention facility for drug

charges at the time of trial; (3) and the testimony did not support a heat of

passion defense where the kidnapping occurred six months prior to the

instant shooting.    Because the absence of the testimony did not prejudice

Sovann, trial counsel cannot be deemed ineffective.            Fletcher, supra;

Spotz, supra.       It follows that PCRA counsel was also not ineffective for

failing to raise a claim of trial counsel’s ineffectiveness.

      Order affirmed.

      DONOHUE, J., Did not participate in the consideration or decision of

this memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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