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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

JOHNATHAN LANE

                             Appellant               No. 2033 EDA 2015


                    Appeal from the PCRA Order June 5, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013415-2009


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 05, 2016

        Johnathan Lane appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, which dismissed his petition filed

pursuant to the Post Conviction Relief Act (PCRA).1 After careful review, we

affirm.

        Following a jury trial, Lane was convicted of third-degree murder,2

criminal conspiracy,3 and possessing an instrument of crime4 based upon his

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2502(c).
3
    18 Pa.C.S. § 903.
4
    18 Pa.C.S. § 907(a).
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actions with his co-defendant, Shawn Jones-Bing. After a verbal altercation

with the victim, Lane and Jones-Bing approached the victim’s car. Lane and

Jones-Bing entered the car while the victim was inside; Lane sat in the front

passenger seat and Jones-Bing sat in the back seat. Shortly after entering

the car, eyewitnesses heard a gunshot coming from inside the car. Lane and

Jones-Bing exited the vehicle, entered their own car, and drove away. The

victim, who had been shot in the eye, was transported to a hospital and

pronounced dead.

     Based on these facts, Lane was convicted of the foregoing offenses,

and on November 15, 2010, he was sentenced to an aggregate term of 20 to

40 years’ incarceration.   Following a timely direct appeal to this Court,

Lane’s judgment of sentence was affirmed on July 30, 2012.               See

Commonwealth v. Lane, 55 A.3d 150 (Pa.Super. 2012) (unpublished

memorandum). Thereafter, on January 3, 2013, the Pennsylvania Supreme

Court denied Lane’s petition for allowance of appeal. Lane filed a timely pro

se PCRA petition on July 24, 2013, and counsel was appointed. Lane later

retained private counsel, who filed the instant amended PCRA petition.

After issuing a notice pursuant to Pa.R.Crim.P. 907, the PCRA court

dismissed the petition on June 5, 2015. Lane filed a timely notice of appeal

and court-ordered concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

     On appeal, Lane raises the following issues for our review:




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      1. Was trial counsel ineffective because he failed to object – on
         due process grounds – to the court’s summary of proof
         beyond a reasonable doubt in the court’s final instructions?

      2. Was trial counsel ineffective because he failed to request that
         the court charge that a summary of proof beyond a
         reasonable doubt went far beyond a suspicion, a probability of
         guilt, a preponderance of the evidence, and clear and
         convincing evidence?

      3. Was trial counsel ineffective for failing to object to the court’s
         definition of reasonable doubt?

      4. Was trial counsel ineffective because he failed to object to the
         court’s instructions on “demeanor evidence”?

Brief for the Appellant, at 8 (emphasis in original).

      Our standard and scope of review regarding the denial of a PCRA

petition is well-settled.   We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and review its

conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

      To be eligible for relief under the PCRA, Lane must prove by a

preponderance of the evidence that his conviction resulted from “ineffective

assistance of counsel which, in the circumstances of the particular case so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.”       42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed to be effective and the burden of demonstrating



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ineffectiveness rests on appellant.”    Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011).           To demonstrate ineffectiveness, the

appellant must satisfy a three-part test by showing that: “1) his underlying

claim is of arguable merit; (2) counsel had no reasonable basis for his action

or inaction; and (3) the petitioner suffered actual prejudice as a result.”

Spotz, supra at 311.

      When reviewing a trial court’s jury instructions, we

      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, 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. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citations omitted).   Additionally, “[c]ounsel will not be deemed ineffective

for failing to raise a meritless objection to proper jury instructions.”

Commonwealth v. Howard, 749 A.2d 941, 957 (Pa. Super. 2000).

      Lane’s first three issues assert that trial counsel failed to object or

request clarification as to the trial court’s instructions regarding reasonable

doubt.    Specifically, Lane argues that the court’s summary of the

requirements for proof beyond a reasonable doubt was incomplete and that

the definition of reasonable doubt was incorrect.

      The trial court’s instructions regarding the Commonwealth’s burden to

prove that Lane committed the crimes charged were as follows:


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     [I]t is the Commonwealth that always has the burden of proving
     each and every element of the crime charged and that each
     defendant is guilty of those crimes beyond a reasonable doubt.

     And I will give you those elements towards the end of this
     charge.

     If the evidence presented fails to meet the Commonwealth’s
     burden, then your verdict must be not guilty.

     On the other hand, if the evidence does prove beyond
     reasonable doubt that a defendant is guilty of the crimes
     charged, then your verdict should be guilty.

     Although the Commonwealth has the burden of proving each
     defendant is guilty beyond reasonable doubt, this does not mean
     that the Commonwealth must prove its case beyond all doubt,
     nor to a mathematical certainty.

     Nor must it demonstrate the complete impossibility of innocence.

     You also do not have to have all of your questions answered
     before you can find a defendant guilty. But you must be
     conviced beyond reasonable doubt as to each and every element
     of each crime charged before you can find him guilty.

     A reasonable doubt is a doubt that would cause a
     reasonably careful and sensible person to pause, hesitate,
     or refrain from acting upon a matter of the highest
     importance in his or her own affairs or to his or her own
     interests.

     A reasonable doubt must fairly arise out of the evidence that was
     presented or out of the lack of evidence presented, with respect
     to some element of the crimes charged.

     So, to summarize, you may not find the defendants guilty
     based upon a mere suspicion of guilt.

     The Commonwealth has the burden of proving each defendant
     guilty beyond reasonable doubt.

     If the Commonwealth has met that burden, then the defendants
     are no longer presumed innocent and you should find them
     guilty. On the other hand, if the Commonwealth has not met its
     burden, then you must find them not guilty.



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N.T. Trial, 8/16/10, at 233-35 (emphasis added).

      Lane argues that the phrase “to summarize, you may not find the

defendants guilty based upon a mere suspicion of guilt” is “not a summary

at all. It is a statement which takes the lowest level of proof (suspicion) and

tells the jury that proof beyond a reasonable doubt requires more than

suspicion.” Brief for the Appellant, at 12. Lane asserts that his trial counsel

should have objected to this statement and requested an instruction that

proof beyond a reasonable doubt goes beyond suspicion, probability,

preponderance of the evidence, and clear and convincing evidence.         Lane

argues that without an objection and additional instruction, the statement

reduced the standard of proof the jury needed to find in order to convict

him. We disagree.

      We note that the instructions the court provided regarding reasonable

doubt and the Commonwealth’s burden of proof mirror the charge provided

in the Pennsylvania Suggested Standard Criminal Jury Instructions.        See

Pa.S.S.J.I (Criminal) § 7.01. Indeed, the standard instructions provide the

exact phrase to which Lane objects. Additionally, Lane’s argument isolates

the phrase and takes it out of context, in contravention of our mandate to

consider jury instructions as a whole.     Antidormi, supra.    Moreover, our

Supreme Court has rejected an identical argument objecting to the phrase

“mere suspicion of guilt” when used within a rendition of the same standard

jury instructions as were used here. See Commonwealth v. Ragan, 743




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A.2d 390, 401-02 (Pa. 1999).      Accordingly, any objection by trial counsel

would have been meritless. Howard, supra.

      Next, Lane asserts that trial counsel should have objected to the

court’s definition of reasonable doubt.    The court stated that a reasonable

doubt arises when a reasonable person would “pause, hesitate, or refrain

from acting” upon an important matter. N.T. Trial, 8/16/10, at 234. Lane

argues that the inclusion of the term “refrain” improperly introduced a

higher degree of doubt required for acquittal than did “pause” or “hesitate.”

Brief for the Appellant, at 21. In Commonwealth v. Uderra, 862 A.2d 74

(Pa. 2004), the same language was at issue, and the appellant argued that

“defining reasonable doubt in such a way as would require a juror to

‘refrain’ from acting altogether, rather than merely to ‘hesitate’ before

acting, . . . significantly reduc[ed] the Commonwealth’s burden from the

constitutionally-approved level and infring[ed] on the presumption of

innocence.”   Id. at 92.   Our Supreme Court rejected this claim and held

that, taken as a whole, the instructions accurately conveyed the concept of

reasonable doubt.    Id.   Thus, the court’s instruction was proper in the

instant matter and any objection to the definition would have been without

merit. Howard, supra.

      Finally, Lane argues that trial counsel was ineffective for failing to

object to the trial court’s instructions regarding “demeanor evidence.” The

court provided the following regarding the credibility of witnesses:




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     You must consider and weigh the testimony of each witness and
     give it such weight as, in your judgment, it is fairly entitled to
     receive.

     The matter of the credibility of a witness – that is, whether his or
     her testimony is believable and accurate, in whole or in part – is
     solely for your determination.

     I will mention some of the factors which might bear on that
     determination:

     Whether the witness has any interest in the outcome of the case
     or has friendship or animosity towards other persons concerned
     in the case.

     The behavior of the witness on the witness stand and his or her
     demeanor.

     His or her manner of testifying and whether she or he shows any
     bias or prejudiced which might color his or her testimony. The
     accuracy of his or her testimony – I’m sorry.

     The accuracy of his or her memory and recollection.

     His or her ability and opportunity to acquire knowledge of or to
     observe the matters about which she or he testifies.

     The consistency or inconsistency of her or his testimony, as well
     as its reasonableness or unreasonableness in light of all of the
     evidence of the case.

N.T. Trial, 8/16/10, at 235-36.

     Lane claims that

     [t]hese instructions invited the jury to make credibility findings
     which could easily have led to a conviction based on “the
     behavior of the witness on the witness stand” or ”his or her own
     demeanor” or “his or her manner of testifying[.”] No standards
     were given [to] the jury on how to make these determinations or
     on how to make such judgments.

Brief for the Appellant, at 28. We disagree.

     Here, Lane again takes certain phrases out of context, when jury

instructions are to be considered in their entirety. Antidormi, supra. The


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portions Lane isolates are possible factors, among others, that a jury may

find relevant in determining credibility. We have held that such factors are

permissible for a jury to consider: “[W]itnesses’ credibility may be assessed

by the content of the testimony and the manner in which it is presented,

e.g., did the witness ‘appear’ forthright in his demeanor and delivery.”

Commonwealth v. Paxton, 821 A.2d 594, 597 (Pa. Super. 2003)

Moreover, the standard jury instructions regarding credibility of witnesses

include that the jury may consider how convincing a witness is and how a

witness looks, acts, and speaks while testifying. See Pa.S.S.J.I. (Criminal) §

4.17.    Thus, we find that any objection counsel may have made to the

court’s instructions regarding demeanor of witnesses would have been

without merit. Howard, supra.

        For the foregoing reasons, Lane has failed to show that any of his

claims have merit; accordingly, counsel cannot be deemed ineffective.

Spotz, supra. Accordingly, the PCRA court did not err in dismissing Lane’s

PCRA petition.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2016


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