J-S37036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
TYLER DWAYNE JOHNS,                       :
                                          :
                  Appellant               :           No. 1628 MDA 2016

         Appeal from the PCRA Order entered September 23, 2016
            in the Court of Common Pleas of Lancaster County,
             Criminal Division, No(s): CP-36-CR-0001443-2009

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 17, 2017

      Tyler Dwayne Johns (“Johns”) appeals from the Order denying his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      This Court previously set forth the relevant underlying facts as follows:

      On the afternoon of January 24, 2009, [Johns], who was sixteen
      years and eleven months old and a member of a gang, fatally
      stabbed Kenyon Wright-Carter [(“Victim”).]         Commonwealth
      witness Taisha Rivera [(“Rivera”)], who was friends with Victim
      and knew [Johns], testified at trial to the following. Victim and
      [Johns] had an ongoing dispute. [N.T.], 5/3/10, at 71-72. Six
      months prior to the stabbing, Rivera was driving a car with
      Victim and Victim’s cousin, “Booby.” Id. at 72. [Johns] and his
      brother[,] Anthony Johns [(“Anthony”),] were in the car behind
      them. Id. at 73. They stopped to buy marijuana, and Anthony
      went to Booby’s window and “just started popping off at him[.]”
      Id. Booby exited the car and engaged in a fist fight with
      Anthony. Id. [Johns] stepped in to help his brother Anthony,
      and Victim helped his cousin Booby, and thus [Johns] and Victim
      fought each other. Id. at 74.

      On the day of the stabbing, Rivera was driving a car, Victim was
      in the front passenger seat, and another person, K., was in the
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     left rear seat; they were seeking to buy marijuana. Id. at 80,
     81. Rivera parked the car, exited, and asked Anthony, who was
     standing there, where to buy marijuana. Id. at 84. Anthony
     replied there was none, and Rivera returned to the car. Id.

     Seated in the car, Rivera saw[,] in her side mirror[,] [Johns]
     approach them from behind. Id. at 83, 85.          Anthony asked
     Victim to open his window to talk. Id. at 85. [After] Victim
     asked Rivera to lower the window, Rivera inserted the key in the
     ignition, and Victim lowered the window himself. Id. at 85-86.
     [Johns] arrived at the window at that time, opened the door
     without saying anything, and “jabb[ed] at” Victim ten to fifteen
     times. Id. at 86-88. Rivera did not see Victim reach for his
     waist or at anything else. [Id. at 88-89.] Victim screamed,
     “[H]e stabbed me,” and went to the rear seat with Rivera and
     K.’s help. Id. at 87-89. Anthony then kicked Victim “a couple
     times,” but Victim succeeded in running out of the car, into a
     house, and back out before lying on the sidewalk. Id. at 90-91.
     Rivera saw Victim was bleeding a lot. Id. at 90. K. corroborated
     Rivera’s testimony at trial. See [N.T.], 5/4/10, at 147-57.

     [Johns] testified to the following. With respect to his prior fight
     with Victim, it was Booby who “sucker-punched” Anthony.
     [N.T.], 5/5/10, at 339-40. [Johns] went “to check on” Anthony,
     and Victim hit him, threatening him. Id. at 340. When asked
     what Victim said, [Johns] stated:

       That is what we already know. We already know that it is
       with him, and his peoples, his gang. [sic]

                                   ***

       Meaning, I took it as, you know, it was a situation at the
       time and, you know, kind of concerned me because after
       that, I pretty much knew that I am going to go through
       problems with these Bloods [gang members].

     Id. at 340.

     Subsequently, there was an incident in which Victim and his
     friends chased [Johns] with bats. Id. at 340-41. [Johns] felt
     scared “of a possibility something could happen to” him. Id. at
     341. Then, in early January [] 2009, Victim shot a gun at
     [Johns] from behind as he was leaving someone’s house;


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      [Johns] hid between two cars, and Victim fled. Id. at 342.
      [Johns] stated these events caused him to be scared, but he did
      not tell his family because he feared police involvement and
      escalation to “a situation occurring to one of my family member’s
      house [sic].” Id.

      On the day of the stabbing, [Johns] walked out of his aunt’s
      house and saw a car parked three or four houses away. Id. at
      343. From two to three feet away, [Johns] saw Victim in the
      car[,] and “pull his hoody up.” Id. at 343-44. [Johns] was “in
      shock” to see him there because he did not think “the situation
      would come to a family member’s house [sic].” Id. at 344. It
      was Victim who opened the door, and as he stepped out of the
      car, he put his hand on his waist under his shirt. Id. at 344-45.
      [Johns] believed Victim was reaching for a gun. Id. at 345.
      [Johns] described the stabbing as follows: “[I]t happened so
      fast. [H]e was getting out of the car, … I just went to grab him
      and that this when we got in the thing and it happened so fast, I
      can’t actually remember how everything happened.” Id. at 344-
      45. [Johns] then ran into his aunt’s car. Id. at 345-46. He
      denied having [an] intent to kill Victim. Id. at 346.

      [Johns] filed a [M]otion to transfer his case to the juvenile
      system. The court held a hearing on December 20, 2009, and
      denied the [M]otion on April 20, 2010. A five-day jury trial
      commenced on May 3, 2010. The jury was charged on first-
      degree      murder,       third-degree    murder,      voluntary
      manslaughter/heat         of     passion,     and      voluntary
      manslaughter/unreasonable mistaken belief. The jury returned a
      verdict of guilty on third-degree murder[,] and not guilty of the
      remaining offenses.

See   Commonwealth       v.   Johns,   50   A.3d   245   (Pa.   Super.   2012)

(unpublished memorandum at 1-5) (footnotes omitted).

      The trial court sentenced Johns to twenty to forty years in prison. This

Court affirmed the judgment of sentence, and the Supreme Court of

Pennsylvania denied allowance of appeal. See id., appeal denied, 63 A.3d

774 (Pa. 2013).



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      In March 2014, Johns filed a timely pro se PCRA Petition. The PCRA

court appointed counsel, who filed an Amended PCRA Petition. Following an

evidentiary hearing, the PCRA court denied the Petition. Johns filed a timely

Notice of Appeal, and a court-ordered Pennsylvania Rule of Appellate

Procedure 1925(b) Concise Statement.

      On appeal, Johns raises the following questions for our review:

      A. Whether the [PCRA] court erred in denying [Johns’s]
         Amended PCRA [Petition,] when trial counsel was ineffective
         by failing to preserve for appellate review the claim that
         testimony by [Johns’s] girlfriend that[,] upon learning of the
         [V]ictim’s grave condition[,] [Johns] cried and prayed with
         her was relevant and admissible?

      B. Whether the [PCRA] court erred in denying [Johns’s]
         Amended PCRA [Petition,] when trial counsel was ineffective
         by failing to preserve for appellate review the claim that the
         court improperly instructed the jury concerning the
         interrelationship between malice and fear in the context of
         the crimes of murder and voluntary manslaughter?

Brief for Appellant at 4 (some capitalization omitted).

            Our standard of review of the denial of a PCRA petition is
      limited to examining whether the evidence of record supports
      the [PCRA] court’s determination and whether its decision is free
      of legal error. This Court grants great deference to the findings
      of the PCRA court if the record contains any support for those
      findings. We give no such deference, however, to the [PCRA]
      court’s legal conclusions.

Commonwealth v. Secreti, 134 A.3d 77, 79-80 (Pa. Super. 2016)

(citations omitted).

      As each of Johns’s claims involve the ineffective assistance of counsel,

to succeed on such a claim, he must demonstrate that



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      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s actions or failure to act; and (3) the
      petitioner suffered prejudice as a result of counsel’s error such
      that there is a reasonable probability that the result of the
      proceeding would have been different absent such error.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).                  “A failure to

satisfy any prong of the ineffectiveness test requires rejection of the claim.”

Commonwealth v. Daniels, 104 A.3d 267, 281 (Pa. 2014).                  Counsel is

presumed to be effective, and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

      In his first claim, Johns contends that his trial counsel was ineffective

for failing to preserve a claim regarding the admissibility of testimony by his

girlfriend, Marie Gonzalez (“Gonzalez”).    Brief for Appellant at 12.       Johns

argues that Gonzalez’s testimony, i.e., that upon learning of Victim’s grave

condition Johns cried and prayed, was relevant to show his state of mind.

Id. at 12, 13, 15. Johns further asserts that the testimony was not hearsay.

Id. at 16-17. Johns claims that trial counsel’s failure to “articulate at the

time that testimony was proffered that it was admissible to show a lack of

malice[,]” caused a waiver of the issue on direct appeal.        Id. at 14; see

also id. at 12, 15, 18. Johns argues that trial counsel had no reasonable

basis for failing to preserve the issue, and that Johns was prejudiced by trial

counsel’s failure. Id. at 17-18.

      “Relevance    is   the   threshold   for   admissibility   of     evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015); see also



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Pa.R.E. 402.   “Evidence is relevant if it has any tendency to make a fact

more or less probable than it would be without the evidence[,] and the fact

is of consequence in determining the action.” Pa.R.E. 401; see also Tyson,

119 A.3d at 358 (stating that “[e]vidence is relevant if it logically tends to

establish a material fact in the case, tends to make a fact at issue more or

less probable or supports a reasonable inference or presumption regarding a

material fact.”). However, “[t]he court may exclude relevant evidence if its

probative value is outweighed by the danger of … unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Pa.R.E. 403.

      At trial, Johns sought to introduce Gonzalez’s testimony regarding his

actions after learning of Victim’s grave condition to demonstrate that he did

not have the specific intent to kill.      N.T., 5/5/10, at 333-34.       The

Commonwealth objected to the admission of such evidence, arguing that

Gonzalez’s testimony was irrelevant to establish intent. Id. The trial court

agreed, and ruled that the evidence was “not relevant to negate [Johns’s]

fully-formed intent to kill at the time the crime took place, which is the

relevant time for determining that intent.”   Id. at 335.   Following Johns’s

acquittal of first-degree murder and conviction of third-degree murder,

Johns argued on appeal that Gonzalez’s testimony should have been




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admitted to demonstrate Johns did not act with malice.1       See Johns, 50

A.3d 245 (unpublished memorandum at 10-11). This Court concluded that

because Johns did not raise this discrete issue before the trial court, it was

waived on appeal. See id. (unpublished memorandum at 11-12).

      Here, even if Johns’s counsel had raised the claim in the context of

malice, Johns would not be entitled to relief. Indeed, evidence that Johns

exhibited remorse about the stabbing and said prayers for Victim is

irrelevant in determining whether Johns acted with malice at the time of the

stabbing. See Commonwealth v. Tillia, 518 A.2d 1246, 1254 (Pa. Super.

1986) (noting that “[w]hether or not appellant expressed remorse is

irrelevant to the determination of guilt.”); see also Fisher, 80 A.3d at

1191. Moreover, the evidence presented, including the fact that Johns had

stabbed Victim, was sufficient to support a finding of malice.           See

Commonwealth v. Ventura, 975 A.2d 1128, 1144 (Pa. Super. 2009)

(concluding that there was sufficient evidence to prove the appellant

committed murder of the third degree where he stabbed the victim in the

chest with a knife).     Because Gonzalez’s testimony regarding Johns’s


1
  “[T]o convict a defendant of the offense of third[-]degree murder, the
Commonwealth need only prove that the defendant killed another person
with malice aforethought.” Commonwealth v. Fisher, 80 A.3d 1186, 1191
(Pa. 2013) (citation omitted). “[T]hird[-]degree murder is not a homicide
that the Commonwealth must prove was committed with malice and without
a specific intent to kill.” Id. (citation omitted). “Instead, it is a homicide
that the Commonwealth must prove was committed with malice, but one
with respect to which the Commonwealth need not prove, nor even address,
the presence or absence of a specific intent to kill.” Id. (citation omitted).


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conduct after the stabbing is not relevant to a determination of malice,

counsel was not ineffective for failing to raise the claim before the trial court.

See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (noting that

counsel is not ineffective for failing to raise a claim that has no merit).

      In his second claim, Johns contends that trial counsel was ineffective

for failing to object to an instruction to the jury regarding the interplay

between malice and fear. Brief for Appellant at 18. Johns points out that in

response to a jury question, the trial judge instructed that “malice and fear

are not mutually exclusive.” Id. at 19. Johns argues that trial counsel did

not object to the instruction and this Court subsequently found the issue

waived on appeal.        Id. at 19-20.        Johns asserts that there was

overwhelming evidence of his fear of Victim, which would have negated a

finding of malice.    Id. at 20.     Johns claims that trial counsel had no

reasonable basis for failing to object, and Johns was prejudiced by counsel’s

failure, as there was a reasonable probability he would have been convicted

of voluntary manslaughter. Id. at 21-22.

             When reviewing a challenge to part of a jury instruction,
      we must review the jury charge as a whole to determine if it is
      fair and complete. A trial court has wide discretion in phrasing
      its jury instructions, and can choose its own words as long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. The trial court commits an abuse of
      discretion only when there is an inaccurate statement of the law.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super. 2008) (citation

omitted); see also Commonwealth v. Davalos, 779 A.2d 1190, 1195 (Pa.



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Super. 2001) (noting that “[t]he scope of supplemental instructions given in

response to a jury’s request rests within the sound discretion of the trial

judge.”). “It is an unquestionable maxim of law in this Commonwealth that

a trial court has broad discretion in phrasing its instructions, and may

choose its own wording so long as the law is clearly, adequately, and

accurately presented to the jury for its consideration.” Commonwealth v.

Leonberger, 932 A.2d 218, 224–25 (Pa. Super. 2007) (citation omitted).

“[W]here a jury returns on its own motion indicating confusion, the court has

the duty to give such additional instructions on the law as the court may

think necessary to clarify the jury’s doubt or confusion.” Davalos, 779 A.2d

at 1195.

      Here, in instructing the jury, the trial court set forth an extensive

recitation of the elements of and defenses to the various charges.         N.T.,

5/7/10, at 583-98. Specifically, with regard to third-degree murder, the trial

court stated the following:

      For murder in the third degree, a killing is [done] with malice if
      the perpetrator’s actions show his or her wanton and willful
      disregard of an unjustified and extremely high risk that his
      conduct would result in death or serious bodily injury to another.

      In this form of malice, the Commonwealth need not prove that
      the perpetrator specifically intended to kill another.      The
      Commonwealth must prove, however, that he took action while
      consciously, and that means knowingly, disregarding the most
      serious risk he was creating, and that, by his disregard of that
      risk, he demonstrated his or her extreme indifference to the
      value of human life.




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Id. at 584-85; see also id. at 587 (noting that to find Johns “guilty of third-

degree murder, [the jury] must find the following three elements have been

proven beyond a reasonable doubt:         First, that [Victim] is dead.   Second,

that [Johns] killed him; and third, that [Johns] did so with malice.”).

      Further, the trial court stated that “a killing is without malice if the

perpetrator acts with a lawful justification or excuse or under circumstances

that would reduce the killing to voluntary manslaughter.”        Id. at 587-88;

see also id. at 585, 593. The trial court additionally instructed the jury as

follows:

      When these circumstances are present, a killing may be
      voluntary manslaughter, but never murder. This is true when a
      defendant kills in the heat of passion following serious
      provocation or kills under an unreasonable mistaken belief in
      justifying circumstances. Accordingly, you can find malice and
      murder only if you are satisfied beyond a reasonable doubt that
      [Johns] was not acting under a sudden and intense passion
      resulting from serious provocation by [Victim] or under an
      unreasonable belief that the circumstances were such that, if
      they existed, would have justified the killing.

      A defendant acts under an intense passion if he or she acts
      under any emotion such as anger, rage, sudden resentment, or
      terror that is so strong that it renders him incapable of full
      reflection. A defendant acts under a sudden passion if the time
      between provocation and the killing is not long enough for the
      passion of a reasonable person to cool.

                                      ***

      The law recognizes that the cumulative impact of a series of
      related events can lead to sudden passion and amount to serious
      provocation.    The test is whether a reasonable person,
      confronted with the same series of events[,] would become so
      impassioned that he would be incapable of cool reflection.



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                                     ***

      Another circumstance that can reduce murder to voluntary
      manslaughter is when a defendant is acting under [an]
      unreasonable belief that the circumstances of the killing were
      justified. This is known as imperfect self-defense. A self-
      defense claim under this theory is imperfect only in one respect,
      an unreasonable rather than reasonable belief that deadly force
      was required to save the actor’s life.

                                     ***

      Imperfect self-defense applies where the defendant actually
      believed he was in immediate danger of death or serious bodily
      injury from the victim at the time he used deadly force, but his
      belief was unreasonable in light of the facts as they appeared to
      him at that time, the defendant did not violate his duty to
      retreat.

Id. at 593-96.

      During deliberations, the jury asked two questions regarding the

definition of malice as to each of the various charges and whether imperfect

self-defense must be proven to enter a voluntary manslaughter verdict. Id.

at 605. In response, the trial court re-read its prior instruction with regard

to the murder and voluntary manslaughter charges. Id. at 605-20. After

the jury continued its deliberations, it asked the trial court whether “malice

and fear exist in the same circumstance or are they mutually exclusive of

each other?” Id. at 621. The trial court answered the question as follows:

      I heard the question to be, are the concepts of malice and fear
      mutually exclusive?

      Simply stated, the answer to that is no, they are not mutually
      exclusive if you are satisfied to the beyond the reasonable doubt
      standard that there is evidence that proves all the elements that



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      are necessary for a finding of malice or any other element or
      principle that you are dealing with here.

Id. at 626-27.

      Here, viewing the jury charge as a whole, we conclude that the trial

court accurately stated the elements of voluntary manslaughter and third-

degree murder two separate times to the jury. See, e.g., Fisher, supra;

Commonwealth v. Yale, 150 A.3d 979, 986 (Pa. Super. 2016) (noting that

a “person who kills an individual without lawful justification commits

voluntary manslaughter if[,] at the time of the killing[,] he is acting under a

sudden and intense passion resulting from serious provocation by … the

individual    killed.”)   (citation   omitted);   see   also   Commonwealth   v.

Sepulveda, 55 A.3d 1108, 1142 (Pa. 2012) (stating that trial court

accurately conveyed the law with regard to the voluntary manslaughter

charge when instructing the jury on two separate occasions); Baker, 963

A.2d at 507 (stating that in reviewing a jury charge, it must be viewed as a

whole).      The trial court set forth an extensive recitation of the interplay

between malice and the elements of voluntary manslaughter, i.e., a

reasonable belief that the actor was in immediate danger of serious bodily

injury or death. In point of fact, the trial court clearly stated that the jury

could not find malice if the elements of voluntary manslaughter were

present. See N.T., 5/7/10, at 594, 616; see also id. at 627 (instructing, in

its supplemental instruction, that the jury must find all of the elements of

malice beyond a reasonable doubt). While Johns argues that the trial court


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should have instructed the jury that the mere existence of fear was enough

to overcome a finding of malice, such a statement would not have been a

proper statement of the law.    See Commonwealth v. Grove, 526 A.2d

369, 373 (Pa. Super. 1987) (noting that while a history of abuse “is certainly

a factor to be considered in determining whether an accused’s alleged fear of

imminent death or serious bodily injury is genuine and reasonable, it does

not alter the requirement that the threat of death or serious bodily injury be

imminent on the present occasion.”).        Thus, the trial court properly

instructed the jury, and Johns has not established that trial counsel was

obliged to object to the instruction, or that this failure caused the third-

degree murder verdict.

      Based upon the foregoing, the trial court properly denied Johns’s PCRA

Petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2017




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