J-A18024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 LAWRENCE GAINES,                          :
                                           :
                    Appellant              :    No. 115 EDA 2018

             Appeal from the PCRA Order November 30, 2017
  In the Court of Common Pleas of Northampton County Criminal Division
                    at No(s): CP-48-CR-0003210-2012


BEFORE:    STABILE, J., STEVENS*, P.J.E., and STRASSBURGER**, J.

MEMORANDUM BY STEVENS, P.J.E.:                   FILED SEPTEMBER 12, 2018

      Appellant Lawrence Gaines appeals from the order entered by the Court

of Common Pleas of Northampton County dismissing his petition pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Appellant raises several claims of the ineffectiveness of his trial counsel. After

careful review, we affirm.

      Appellant’s underlying convictions are based on the following factual

background: on July 3, 2012, at approximately 6 a.m., William “Poncho”

Thompson (hereinafter “the victim”) attempted to purchase drugs at a

residence known for the sale of controlled substances at 613 Ferry Street in

Easton, Pennsylvania. When the victim initially knocked at the door, no one

answered. Tony Williams, who was present in the home, heard the victim

knocking, but the owner of the home directed Williams not to open the door


____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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because the house was “shut…down for the night.” Notes of Testimony (N.T.),

5/7/13, at 39. When the victim continued to knock, Williams answered the

door. The victim begged Williams to be allowed inside and was waiving a $20

bill. Williams refused to allow the victim inside.

      Thereafter, the victim continued to persistently knock at the door of the

residence. Appellant subsequently opened the door as he grew tired of the

victim’s knocking and did not want the police to be called. Once Appellant and

the victim’s discussion became heated, Appellant exited the home and

continued to argue with the victim. Mr. Williams also exited the residence and

attempted to calm the situation.

      Appellant then “vicious[ly]” hit the victim, causing the victim to fall to

the ground. Id. at 46. Appellant positioned himself over the victim, hit him

several more times, and kicked him in the head. When Appellant turned away,

the victim was able to recover and grabbed a stick that Williams characterized

as a “rail, like an old house rail.” Id. at 48. The victim hit Appellant from

behind with the stick, causing the stick to break in half and both men to fall

to the ground.

      Appellant got back on his feet, pulled a three-inch knife from his back

pocket, and yelled “oh, it’s like that? Yeah, it’s like that.” Id. at 50. Appellant

repeatedly stabbed the victim, who was still lying on the ground. Williams

pulled Appellant off the victim and both Williams and Appellant fled the scene.

      Easton police officers responded to the crime scene after they were

contacted by a couple who saw the victim lying on the roadway. Officer Jamie

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Luise observed the victim facedown in a large amount of blood running down

Ferry Street.    Id. at 25.    Although the officers immediately called for

emergency personnel, the victim died shortly after he was transported to the

hospital.

      Dr. Samuel Land, a forensic pathologist who performed the autopsy,

determined that the victim sustained five stab wounds, including one stab

wound to the right groin, which perforated the femoral artery.        Dr. Land

testified that damage to the femoral artery will quickly lead to large amounts

of blood loss and ultimately cause death.

      After Appellant was charged with the victim’s murder, he proceeded to

a jury trial.   On May 9, 2013, the jury convicted Appellant of first-degree

murder.     On the same day, Appellant was sentenced to life imprisonment

without the possibility of parole. Appellant filed timely post-sentence motions,

which were subsequently denied. On September 2, 2014, this Court affirmed

Appellant’s judgment of sentence, and on February 17, 2015, the Supreme

Court denied Appellant’s petition for allowance of appeal.

      On June 8, 2015, Appellant filed a timely pro se PCRA petition. Although

the PCRA court appointed counsel, Appellant filed an amended pro se petition.

Counsel attempted to file a petition to withdraw and a no-merit letter pursuant

to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). The PCRA court

provided notice of its intent to dismiss the petition without a hearing pursuant

to Pa.R.Crim.P. 907 and denied Appellant’s petition on October 9, 2015.

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      After Appellant filed a timely appeal, this Court vacated the PCRA court’s

order and remanded for further proceedings as counsel’s petition to withdraw

and Turner/Finley brief was never filed of record and did not appear on the

docket. Further, this Court noted that there was no evidence that Appellant

had been properly informed of his right to proceed pro se or retain new counsel

upon PCRA counsel’s attempted withdrawal of his representation. As a result,

this Court remanded for PCRA counsel to properly file a copy of his petition to

withdraw and no-merit letter.

      Upon remand, the PCRA court appointed new counsel to represent

Appellant, and on November 22, 2016, Appellant filed a counseled amended

PCRA petition.    After holding evidentiary hearings, the PCRA court denied

Appellant’s petition on November 30, 2017. Appellant filed a timely appeal

and complied with the PCRA court’s direction to file a Concise Statement of

Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

      A. [Trial counsel] was ineffective for failing to request that the
         Trial Court charge the jury that the stick was a lethal weapon.

      B. [Trial counsel] was ineffective for failing to sufficiently meet
         with [Appellant] and advise him that he needed to testify to
         support his justification defense, imperfect self-defense, and
         heat passion defense [sic].

      C. [Trial counsel] was ineffective for failing to file a post-sentence
         motion that included a challenge to the weight of the evidence.

Appellant’s Brief, at 4.




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      In reviewing the lower court’s decision to deny Appellant’s PCRA

petition, we examine whether the PCRA court's determination “is supported

by the record and free of legal error.” Commonwealth v. Mitchell, 636 Pa.

233, 244, 141 A.3d 1277, 1283–84 (2016) (citations omitted). In order to be

eligible for PCRA relief, the petitioner must prove by a preponderance of the

evidence that his conviction or sentence resulted from one or more of the

enumerated circumstances found in 42 Pa.C.S.A. § 9543(a)(2), which includes

the ineffective assistance of counsel.

      “It is well-established that counsel is presumed effective, and to rebut

that presumption, the PCRA petitioner must demonstrate that counsel's

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on an

ineffectiveness claim, the petitioner has the burden to prove that “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Commonwealth v. Sneed, 616

Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 786 A.2d 203, 213 (2001)). “A petitioner establishes prejudice

when he demonstrates “that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.”   Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966 A.2d

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523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694). The failure to

satisfy any one of the three prongs will cause the entire claim to fail. Sneed,

616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

      Appellant first claims that trial counsel was ineffective in failing to

request that the trial court charge the jury that the stick that the victim used

to attack Appellant constituted a lethal weapon as a matter of law. Appellant’s

trial counsel had argued that the castle doctrine was applicable and contended

that Appellant had no duty to retreat when the victim assaulted him with a

lethal weapon.

      At trial, the lower court read the following jury instruction, verbatim:

      (iii) A defendant is not obligated to retreat from the place where
      he or she is attacked if:

      A. The defendant has a right to be in that place;

      B. The defendant is not at that time engaged in criminal
         activity.  “Criminal activity” means conduct that is a
         misdemeanor or felony, is not justifiable under the Crimes
         Code, and is related to the confrontation between an actor
         and the person against whom force is used;

      C. The defendant is not at that time illegally in possession of a
         firearm;

      D. The defendant reasonably believes it is immediately
         necessary for him or her to protect himself or herself against
         death [or] serious bodily injury [or kidnapping or sexual
         intercourse compelled by force or threat]; and

      E. The person against whom the defendant uses force displays
         or otherwise uses a firearm or any weapon readily or
         apparently capable of lethal harm.

Pa.S.S.J.I. 9.501A (Crim) (emphasis added).

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      We reject Appellant’s claim that the trial court also should have informed

the jury that the victim attacked Appellant with a stick that constituted a

“weapon readily or apparently capable of lethal harm”; the trial court properly

noted that this was a question of fact for the jury alone to decide. Trial counsel

recognized that Appellant was not entitled to such an instruction and thus,

appropriately argued that the jury should find the victim hit Appellant with a

lethal weapon and introduced the stick as physical evidence for the jury’s

examination as to its weight and texture. Commonwealth v. Spotz, 610 Pa.

17, 111, 18 A.3d 244, 299–300 (2011) (“[c]ounsel will not be held ineffective

for failing to request an instruction to which his client was not entitled”). As

a result, we find no merit in Appellant’s claim that counsel was ineffective in

failing to request this instruction.

      Second, Appellant contends that trial counsel was ineffective in failing

to advise him that Appellant needed to testify on his own behalf to support his

self-defense theory. It is well established that:

      The decision of whether or not to testify on one’s own behalf is
      ultimately to be made by the defendant after full consultation with
      counsel. In order to sustain a claim that counsel was ineffective
      for failing to advise the appellant of his rights in this regard, the
      appellant must demonstrate either that counsel interfered with his
      right to testify, or that counsel gave specific advice so
      unreasonable as to vitiate a knowing and intelligent decision to
      testify on his own behalf.

Commonwealth v. Smith, 181 A.3d 1168, 1179 (Pa.Super. 2018) (quoting

Commonwealth v. Nieves, 560 Pa. 529, 746 A.2d 1102, 1104 (2000)).




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      In this case, Appellant’s claim is meritless as he failed to demonstrate

“counsel interfered with his right to testify, or that counsel gave specific advice

so unreasonable as to vitiate a knowing and intelligent decision to testify on

his own behalf.”       See Smith, supra.     The record does not contain any

evidence that would suggest that Appellant’s waiver of his right to testify was

not knowing, voluntarily, and intelligent.

      The trial court conducted an oral colloquy of Appellant on the record,

during which Appellant acknowledged that he understood he had the right to

testify, was not forced or threatened to testify, and was making an

independent decision not to testify of his own free will.       Our courts have

emphasized that “a defendant who made a knowing, voluntary, intelligent

waiver of testimony may not later claim ineffective assistance of counsel for

failure to testify.”     Commonwealth v. Lawson, 762 A.2d 753, 755

(Pa.Super. 2000).

      At the PCRA hearing, Appellant’s trial counsel testified that he had

emphasized to Appellant that it was Appellant’s decision alone to decide

whether to testify on his own behalf. Trial counsel asserted that he explained

to Appellant that he intended to set forth a self-defense theory and presented

the advantages and disadvantages of Appellant taking the witness stand.

      However, trial counsel admitted that he agreed with Appellant’s decision

not to testify as counsel had strategic concerns about the risks that Appellant

faced in being subject to cross-examination. Had Appellant chosen to testify,

the Commonwealth would have been able to impeach Appellant with his

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numerous crimen falsi convictions and cross-examined Appellant about his

conduct after the murder that suggested his consciousness of guilt, including

Appellant’s flight from the scene, his failure to seek help, his attempt to

conceal the murder weapon, and his statements to police denying that he

killed the victim in self-defense.

      Moreover,    trial   counsel    contended   that    the   testimony    of   the

Commonwealth’s      own    witness,    Tony   Williams,   had    already    provided

circumstantial evidence to advance Appellant’s theory of self-defense:

      As I recall, the testimony, which was largely from somebody else
      who was present at the scene; there was testimony as to the
      argument that preceded this assault, there was his description of
      the reaction of [Appellant] to that argument that occurred, there
      was testimony as to his reaction and his statements of annoyance
      at the incessant knocking at the door of this house by the victim
      looking to score drugs, there was his description of how the fight
      started, how it escalated, how [Appellant] disengaged from the
      physical altercation between he and the victim, and how it
      proceeded after the victim came back and hit him with the stick
      and how he reacted and what was said.

      And I believe that and other testimony was certainly sufficient to
      ask for the charge, and to make the argument, and to ask the
      Court – excuse me, ask the jury to infer that [Appellant] believed
      that he was in a fight for his life.

      A stick has been used against him by somebody who had – after
      essentially losing the first part of the fight, had gone away,
      returned with a weapon, the stick, attacked [Appellant], and
      knocked him to the ground.

      To the extent that, maybe in the cooler light of the courtroom,
      that this wasn’t self-defense, I think it was still arguable that you
      can infer, and that the jury could understand; well now that I see
      the stick or I see what it is like, maybe it wasn’t perfect self-
      defense, but given the circumstances, the time of the day, the
      time of the night actually, and all that leads up to it, you could see

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      where a person – and I asked the jury to understand, you could
      proceed, even if it turns out it was wrong, that you could have to
      use or be able to use deadly force.

N.T. PCRA hearing, 3/3/17, at 16-18.

      As a result, trial counsel’s proposed strategy was to rely on Williams’s

testimony to support Appellant’s claim of self-defense and to avoid the risk of

the prosecution discrediting Appellant on cross-examination if he testified. In

light of the foregoing testimony, we cannot find trial counsel interfered with

Appellant’s right to testify or gave unreasonable advice that prevented him

from making a knowing and intelligent decision to testify on his own behalf.

      Lastly, Appellant claims trial counsel was ineffective in failing to raise a

challenge to the weight of the evidence supporting his first-degree murder

conviction.   Specifically, Appellant claims that the Commonwealth failed to

show he had specific intent to kill, contending that he did not use a deadly

weapon on a vital part of the victim’s body and asserting that he was only

acting in self-defense.    The Commonwealth argues that a weight of the

evidence challenge would have been meritless and counsel cannot be held

ineffective for failing to raise a meritless claim.

      Our standard of review for a weight of the evidence claim is as follows:

         The essence of appellate review for a weight claim appears
         to lie in ensuring that the trial court's decision has record
         support. Where the record adequately supports the trial
         court, the trial court has acted within the limits of its
         discretion.
                                         ***
         A motion for a new trial based on a claim that the verdict is
         against the weight of the evidence is addressed to the
         discretion of the trial court. A new trial should not be


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          granted because of a mere conflict in the testimony or
          because the judge on the same facts would have arrived at
          a different conclusion. Rather, the role of the trial judge is
          to determine that notwithstanding all the facts, certain facts
          are so clearly of greater weight that to ignore them or to
          give them equal weight with all the facts is to deny justice.
                                         ***
          An appellate court's standard of review when presented with
          a weight of the evidence claim is distinct from the standard
          of review applied by the trial court. Appellate review of a
          weight claim is a review of the exercise of discretion, not of
          the underlying question of whether the verdict is against the
          weight of the evidence.

     Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054–55
     (2013) (quotation marks, quotations, and citations omitted). In
     order for an appellant to prevail on a challenge to the weight of
     the evidence, “the evidence must be so tenuous, vague and
     uncertain that the verdict shocks the conscience of the court.”
     Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa.Super.
     2003) (quotation marks and quotations omitted).

Commonwealth v. Rodriguez, 174 A.3d 1130, 1139–40 (Pa.Super. 2017).

     In order to sustain a conviction for first-degree murder, the
     Commonwealth must demonstrate that a human being was
     unlawfully killed; the defendant was responsible for the killing;
     and the defendant acted with malice and a specific intent to kill,
     i.e., the killing was performed in an intentional, deliberate, and
     premeditated manner. Commonwealth v. Chamberlain, 30
     A.3d 381, 394, (Pa. 2011). Specific intent may be established
     through circumstantial evidence, such as the use of a deadly
     weapon on a vital part of the victim's body. [Commonwealth v.]
     Smith, 985 A.2d [886, 895 (Pa. 2009)]. Malice also may be
     inferred from the use of a deadly weapon upon a vital part of the
     victim's body. Commonwealth v. Houser, 18 A.3d 1128, 1134
     (Pa. 2011)

Commonwealth v. Ramtahal, 613 Pa. 316, 325–26, 33 A.3d 602, 607

(2011).




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      In this case, the Commonwealth presented evidence that Appellant

brutally attacked the victim, who was lying on the ground. Appellant inflicted

multiple stab wounds with a knife and continued to repeatedly stab the victim

until Williams pulled Appellant away. The autopsy revealed the severity of the

victim’s wounds; in particular, the fatal wound was so deep that it penetrated

the victim’s muscle, completely severed the femoral artery, and traveled

through the muscle again.      The victim also sustained stab wounds to his

buttocks that were approximately twice as deep as the length of the knife

blade; the pathologist opined that Appellant had to use substantial force to

inflict such wounds.

      Upon our review of the record, we find the trial court did not abuse its

discretion in rejecting Appellant’s request for a new trial as it found the jury’s

verdict was amply supported by competent evidence. Appellant essentially

asks this Court to reweigh the evidence in his favor; however, we may not

substitute our judgment for that of the jury as factfinder, which was free to

believe all, part, or none of the evidence. See Ramtahal, supra. As a result,

we conclude that trial counsel was not ineffective in failing to raise a meritless

challenge to the weight of the evidence.

      For the foregoing reasons, we affirm the PCRA court’s decision to deny

Appellant’s petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/18




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