J-A31030-17


    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
    SCOTT JAMES                           :
                                          :
                    Appellant             :   No. 1546 EDA 2017

                  Appeal from the PCRA Order May 11, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012334-2013


BEFORE:     PANELLA and OLSON, JJ., and STEVENS,* P.J.E.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 15, 2018

       Appellant, Scott James1, appeals from the May 11, 2017 order

dismissing his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       The factual background of this case is as follows. Late in the evening of

February 27, 2013, Appellant was drinking at a bar near his aunt’s house when

his cousin, Gregory Scott (“Cousin”), assaulted him.        Appellant called his

friend, James Hiller (“Hiller”) and asked Hiller to bring a firearm so that he

could confront Cousin. When Hiller gave Appellant the firearm, Appellant shot

Cousin in the head and then fired several shots into Cousin’s corpse.




1Appellant apparently goes by “Scott James” and “James Scott.” As the notice
of appeal filed in this case identifies Appellant as “Scott James,” we shall use
that name for purposes of this appeal.


* Former Justice specially assigned to the Superior Court
J-A31030-17

        The procedural history of this case is as follows. On October 4, 2013,

the Commonwealth charged Appellant via criminal information with first-

degree murder,2 conspiracy to commit murder,3 possession of a firearm by a

prohibited person,4 carrying a firearm without a license,5 carrying a firearm

on the streets of Philadelphia,6 and possessing an instrument of crime.7 On

May 8, 2015, Appellant was convicted of first-degree murder, carrying a

firearm on the streets of Philadelphia, and possessing an instrument of crime.

The trial court immediately sentenced him to the mandatory term of life

imprisonment without the possibility of parole. Appellant did not file a direct

appeal.

        On April 15, 2016, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition. On March 24, 2017, the PCRA court

issued notice of its intent to dismiss the petition without an evidentiary

hearing. See Pa.R.Crim.P. 907. On May 11, 2017, the PCRA court dismissed

the petition. This timely appeal followed.

        Appellant presents three issues for our review:


2   18 Pa.C.S.A. § 2502(a).

3   18 Pa.C.S.A. §§ 903, 2502.

4   18 Pa.C.S.A. § 6105(a)(1).

5   18 Pa.C.S.A. § 6106(a)(1).

6   18 Pa.C.S.A. § 6108.

7   18 Pa.C.S.A. § 907(a).


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      1. Whether the PCRA court erred in denying [A]ppellant’s claim
      that trial counsel was ineffective for failing to consult with
      Appellant about the propriety of an appeal?

      2. Whether the PCRA court erred in denying [A]ppellant’s claim
      that trial counsel was ineffective for failing to present a voluntary
      intoxication defense?

      3. Whether the PCRA court erred in denying [A]ppellant’s claim
      that trial counsel was ineffective for failing to object to evidence
      about Appellant’s prior conviction?

Appellant’s Brief at 4.

      “We review the denial of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.”     Commonwealth v. McGarry, 172 A.3d 60, 65 (Pa.

Super. 2017) (cleaned up).            Appellant’s three issues challenge the

effectiveness of his trial counsel.

      “[T]he Sixth Amendment to the United States Constitution and Article I,

[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective

counsel. This right is violated where counsel’s performance so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d

1194, 1197 (Pa. 2015) (cleaned up). “Counsel is presumed to have been

effective.” Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super.

2017). To prevail on an ineffective assistance of counsel claim, a “petitioner

must plead and prove that: (1) the underlying legal claim is of arguable merit;

(2) counsel’s action or inaction lacked any objectively reasonable basis



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designed to effectuate his [or her] client’s interest; and (3) prejudice, to the

effect that there was a reasonable probability of a different outcome if not for

counsel’s error.”     Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa.

Super. 2017) (citation omitted). “Failure to satisfy any prong of the test will

result in rejection of the [petitioner’s] ineffective assistance of counsel claim.”

Commonwealth v. Smith, 167 A.3d 782, 787-788 (Pa. Super. 2017)

(citation omitted).

      In his first issue, Appellant argues that his trial counsel was ineffective

for failing to consult with him about filing a direct appeal. In order to prove

that counsel was ineffective for failing to consult with a defendant regarding

a direct appeal, a petitioner must show that (1) either (a) there is reason to

believe that the defendant would want to file a direct appeal, or (b) the

defendant reasonably demonstrated to counsel that he or she wished to file a

direct appeal; and (2) there is a reasonable probability that, if counsel would

have consulted with the defendant, he or she would have filed a direct appeal.

Commonwealth v. Carter, 21 A.3d 680, 683 (Pa. Super. 2011) (citation

omitted).

      In this case, Appellant argues that there is a reason to believe that he

would have wanted to file a direct appeal and that he previously demonstrated

his interest in filing a direct appeal.    We need not reach that argument,

however, because the record reflects that there is not a reasonable probability

that Appellant would have filed a direct appeal if he consulted with his



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attorney. In other words, Appellant failed to plead and prove the second prong

of the test articulated in Carter.

         After being advised of his appellate rights, Appellant said, “I have

absolutely no problem with serving the rest of my life in prison. I actually

want to. I probably won’t even be filing an appeal.” N.T. 5/8/15, at 138-139.

The trial court then reminded Appellant that was his choice.         Id. at 139.

Appellant responded, “I’m absolutely fine. Because, you know, I mean, I can’t

sit here and really explain to you why I don’t mind spending the rest of my

life in prison, but [] I am at peace for a lot of reasons.” Id. After speaking

about his faith, Appellant concluded that “I have plenty of time to [obey God]

while in prison.” Id. at 140. When directly asked if he wanted his counsel to

file a post-sentence motion or notice of appeal, Appellant responded, “No.”

Id. at 144.     Accordingly, even if trial counsel would have consulted with

Appellant about the propriety of filing a direct appeal, there is not a reasonable

probability that Appellant would have chosen to file an appeal. As such, the

PCRA court properly dismissed this claim without an evidentiary hearing.

         In his second issue, Appellant argues that his trial counsel was

ineffective for failing to pursue a voluntary intoxication defense.          This

argument fails because Appellant denied shooting Cousin when he testified at

trial.   N.T., 5/7/15, at 198-199, 202.     It is well-settled that a voluntary

intoxication defense is only available when the defendant admits criminal

liability.   Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011).



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Therefore, Appellant’s underlying claim lacks arguable merit because trial

counsel could not pursue a voluntary intoxication defense due to Appellant’s

failure to admit criminal liability.

      In his third issue, Appellant argues that trial counsel was ineffective for

failing to object to introduction of prior bad acts testimony pursuant to

Pennsylvania Rule of Evidence 609(b).8 Specifically, Appellant argues that his

trial counsel should have objected to evidence of his robbery conviction from

1984. Appellant contends that the Commonwealth failed to show that the

“probative value [of the 1984 robbery evidence] substantially outweigh[ed]

its prejudicial effect.” Pa.R.Evid. 609(b)(1); see Appellant’s Brief at 12 (“The

claim is of arguable merit because the trial court did not make an explicit

finding that the prosecution met its burden to prove that the evidence of prior

criminal convictions outweighed it [sic] prejudice.”). 9

      Rule 609 provides, in pertinent part, that evidence of a witness’ prior

conviction older than ten years is only admissible to attack a witness’ character

if “(1) its probative value substantially outweighs its prejudicial effect; and (2)

the proponent gives an adverse party reasonable written notice of the intent

to use it so that the party has a fair opportunity to contest its use.” Pa.R.Evid.


8 Appellant cites Rule 404(b) in his brief; however, admission of the prior
robbery conviction was governed by Rule 609.

9 Appellant also appears to argue that his trial counsel was ineffective for
failing to make relevancy objections to certain questions by the
Commonwealth with respect to this evidence. See Pa.R.Evid. 401. This
argument is waived. See Pa.R.A.P. 2116(a), 2119(a).


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609(b).     As   noted   above,   Appellant   only   challenges   whether   the

Commonwealth satisfied Rule 609(b)(1).        When determining whether the

probative value of a prior conviction substantially outweighs its prejudicial

effect, trial courts must weigh the following factors:

      (1) the degree to which the commission of the prior offense
      reflects upon the veracity of the defendant-witness; (2) the
      likelihood, in view of the nature and extent of the prior record,
      that it would have a greater tendency to smear the character of
      the defendant and suggest a propensity to commit the crime for
      which he stands charged, rather than provide a legitimate reason
      for discrediting him as an untruthful person; (3) the age and
      circumstances of the defendant; (4) the strength of the
      prosecution’s case and the prosecution’s need to resort to this
      evidence as compared with the availability to the defense of other
      witnesses through which its version of the events surrounding the
      incident can be presented; and (5) the existence of alternative
      means of attacking the defendant’s credibility.

Commonwealth v. Hoover, 107 A.3d 723, 725 (Pa. 2014) (cleaned up).

      We conclude that the PCRA court properly found that Appellant failed to

prove that his underlying claim has arguable merit.       Prior to Appellant’s

testimony, the trial court barred the Commonwealth from introducing

evidence related to the 1984 robbery conviction unless Appellant opened the

door during his testimony.        See N.T., 5/7/15, at 87-88.       On cross-

examination, Appellant testified that, “I am not a violent person.” Id. at 208.

The Commonwealth viewed this as opening the door which permitted it to ask

about the 1984 robbery conviction.       When it asked Appellant about the

conviction, Appellant’s counsel did not object; however, Appellant asked the

trial court if he should answer the question. See id. The trial court responded



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in the affirmative.       See id.   In other words, the trial court implicitly told

Appellant that he opened the door to that line of questioning. We agree with

this assessment.

        Several factors weigh in favor of admission of Appellant’s prior robbery

conviction.        A prior robbery conviction reflected upon the veracity of

Appellant’s statement that he was not a violent person. Appellant had fair

warning prior to his testimony that the robbery conviction would not be

admitted unless he opened the door during his testimony.            Moreover, the

Commonwealth had a strong case and was not planning to use the evidence

until Appellant asserted that he was not violent. Some factors weigh slightly

against admission of the evidence. Specifically, the robbery occurred 31 years

ago and was done to help Appellant’s father.          Weighing these factors, the

PCRA court reasonably concluded that the probative value of the 1984 robbery

conviction substantially outweighed the prejudicial effect. As such, Appellant’s

underlying claim lacks arguable merit and Appellant is not entitled to relief on

his third claim of error.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/18


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