J-S68029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

FREDDIE CLEVELAND,

                         Appellant                   No. 210 EDA 2014


         Appeal from the PCRA Order entered December 19, 2013,
            in the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s): CP-23-CR0000001-2009.


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.                         FILED NOVEMBER 10, 2014

      Freddie Cleveland (“Appellant”) appeals from the order denying his

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

sections 9541-46. We affirm.

      We previously summarized the pertinent facts as follows:

            [Appellant] dated [the victim] while [she] was in high
         school, and after her graduation they lived together at the
         Drexel Brook Apartments for 2-3 months. On December
         29, 2008, [the victim] broke off their relationship and
         moved back to her parents’ house on Drexel Hill.

             One day [later], on December 30, 2008, [Appellant]
         returned his keys to the lease administrator at the Drexel
         Hill Apartments.    When the administrator opined that
         [Appellant] and [the victim] were too young to live
         together, [Appellant] “became a little bit animated. . . .
         [H]e said, you never know, and he might get back with
         her.”

           Later that afternoon, [the victim] arrived at her parents’
         house while conversing with Daniel Bronner on her
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       cellphone. She informed Bronner that [Appellant] was
       outside the house. Bronner heard [Appellant] beg [the
       victim] for a hug and ask “why they couldn’t be together, if
       he was good enough for her.” Concerned for her safety,
       [the victim] entered her parents’ house and instructed her
       younger sister, [A.J.], to close the blinds and not to go
       outside.    [The victim] said that she saw [Appellant]
       outside.

          [The victim] and [A.J.] were the only persons in the
       house. Moments after [the victim] arrived, [A.J.] heard
       glass break on the front door. [The victim] tried to keep
       the door closed, shouting: “Go away, Fred.” Over the
       phone, Bronner heard glass breaking and [the victim]
       screaming, “Fred, no, don’t do this.” A genetic analyst for
       the Commonwealth identified a blood stain at the front
       door as matching [Appellant’s] DNA profile.

          [The victim] told [A.J.] to hide and call their father[.]
       [A.J.] ran to her bedroom closet, called [their father] on
       her cellphone and reported that “something was wrong,
       and . . . [Appellant] was in the house, and . . . going to
       hurt [the victim].” [A.J.] heard footsteps running up the
       back steps and the kind of screaming she associated with
       scary movies. The screaming eventually stopped, and she
       heard footsteps going downstairs.

          [The girls’ father] arrived home nine minutes after
       [A.J.’s] phone call and saw the center glass broken on the
       front door. [A.J.] approached him and said that she saw
       somebody’s foot in the kitchen. [The girls’ father] ran into
       kitchen and saw [Appellant] there gasping for air with a
       dark spot on his shirt and a cut on his throat. Officer
       [Kevin] Cosentino of the Upper Darby Police, who had
       arrived at the residence shortly after [the girls’ father],
       saw [Appellant] lying in the kitchen and identified the spot
       on [Appellant’s] clothes as blood. A genetic analyst for the
       Commonwealth found that the blood stain on Appellant’s
       shirt matched [the victim’s] DNA profile.

          [The girls’ father] ran upstairs in search of [the victim]
       and found her lying in a pool of blood in the bathroom.
       She had been stabbed with a butcher’s knife from the
       kitchen.      The Commonwealth’s medical examiner



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           determined that she died from 26-28 stab wounds and 5-
           10 slash wounds on her head, chest, hands and back. . . .

              [Appellant] was non-responsive and had a life-
           threatening injury to his chest. He underwent successful
           emergency surgery at the University of Pennsylvania
           Hospital.

Commonwealth v. Cleveland, 30 A.3d 545 (Pa. 2011), unpublished

memorandum at 1-3 (citations omitted).

     The Commonwealth charged Appellant with first-degree murder.         On

March 26, 2010, following a four-day trial, a jury convicted Appellant as

charged.     On May 3, 2010, the trial court sentenced Appellant to life in

prison without parole. Appellant filed a timely appeal to this Court. On May

13, 2011, we affirmed Appellant’s judgment of sentence.          Cleveland,

supra.     Subsequently, we denied Appellant’s petition for reargument.   On

July 31, 2012, our Supreme Court denied Appellant’s petition for allowance

of appeal. Commonwealth v. Cleveland, 49 A.3d 442 (Pa. 2012).

     On January 22, 2013, Appellant filed a timely, counseled PCRA

petition, in which he contended that, given the overwhelming evidence that

he killed the victim, trial counsel was ineffective for failing to pursue a

defense relating to Appellant’s mental health issues, establishing that the

crime rose to no more than voluntary manslaughter. To this end, Appellant

quoted from the findings of a forensic psychologist, who opined that because

Appellant suffered from a borderline personality disorder, a defense based

on mental issues would have been meritorious.       On March 12, 2013, the

Commonwealth filed its response.       On June 25, 2013, the PCRA court


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convened      an   evidentiary   hearing,   at     which    Appellant,      the   forensic

psychologist identified in Appellant’s PCRA petition, trial counsel, and

Appellant’s father testified.    After hearing this testimony, and considering

arguments and briefs presented by counsel for the parties, the PCRA court,

by order entered December 19, 2013, denied Appellant’s PCRA petition. This

timely appeal followed. Both Appellant and the PCRA court have complied

with Pa.R.A.P. 1925.

      Appellant raises the following issue:

         Was [Appellant] denied effective assistance of counsel for
         the failure to present a viable defense at trial, to wit, that
         the homicide in this case rose no higher than voluntary
         manslaughter?

Appellant’s Brief at 3.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported     by   the    evidence   of   record    and    is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).          To be entitled to relief under the PCRA, the

petitioner must plead and prove by a preponderance of the evidence that the

conviction or sentence arose from one or more of the errors enumerated in

section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness

of counsel.

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      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.”   Johnson, 966 A.2d at 532.      This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

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

petitioner was prejudiced by counsel's act or omission.      Id. at 533.    A

finding of "prejudice" requires the petitioner to show "that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different." Id.

      In assessing a claim of ineffectiveness, when it is clear that appellant

has failed to meet the prejudice prong, the court may dispose of the claim

on that basis alone, without a determination of whether the first two prongs

have been met.     Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995). Counsel will not be deemed ineffective if any reasonable basis exists

for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.

1994). Even if counsel had no reasonable basis for the course of conduct

pursued, an appellant is not entitled to relief if he fails to demonstrate the


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requisite prejudice which is necessary under Pennsylvania's ineffectiveness

standard.       Douglas, 645 A.2d at 232.         Counsel cannot be deemed

ineffective for failing to pursue a meritless claim.        Commonwealth v.

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852

A.2d 311 (Pa. 2004).

      Moreover, trial counsel's strategic decisions cannot be the subject of a

finding of ineffectiveness if the decision to follow a particular course of action

was reasonable and was not the result of sloth or ignorance of available

alternatives.    Commonwealth v. Collins, 545 A.2d 882, 886 (Pa. 1988)

(cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204 (Pa.

1997)).     Counsel's approach must be "so unreasonable that no competent

lawyer would have chosen it."       Commonwealth v. Ervin, 766 A.2d 859,

862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d

233, 234 (Pa. 1981). Our Supreme Court has defined “reasonableness” as

follows:

               Our inquiry ceases and counsel’s assistance is deemed
           constitutionally effective once we are able to conclude that
           the particular course chosen by counsel had some
           reasonable basis designed to effectuate his client’s
           interests. The test is not whether other alternatives were
           more reasonable, employing a hindsight evaluation of the
           record.    Although weigh the alternatives we must, the
           balance tips in favor of a finding of effective assistance as
           soon as it is determined that trial counsel’s decision had any
           reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com.

ex rel. Washington v. Maroney, 235 A.2d 349, 352-53 (Pa. 1967)). See

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also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining

that a defendant asserting ineffectiveness based upon trial strategy must

demonstrate that the “alternatives not chosen offered a potential for success

substantially greater than the tactics utilized”).      A defendant is not entitled

to appellate relief simply because a chosen strategy is unsuccessful.

Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995).

      In support of his claim of ineffectiveness, Appellant asserts “the

defense utilized at trial—that Appellant was not the perpetrator—was

completely unreasonable in view of [the] overwhelming evidence that he

was, and [trial] counsel failed to consider presenting a defense based on

expert   evidence   that   this   killing   rose   no     higher   than   voluntary

manslaughter[.]”    Appellant’s Brief at 13.       According to Appellant, “the

victim had engaged in a series of provocative behaviors toward [him] that

resulted in a total loss of control. Id. Appellant then references the forensic

psychologist’s findings that he is “a person with a history of emotional

fragility, intolerance of abandonment and impulsive conduct.” Id. Appellant

contends further, “[d]ue to this passion, [his] mind was not then capable of

cool reflection.” Id. Appellant therefore claims he is entitled to a new trial

where he could present this defense.

      In rejecting Appellant’s claim, the PCRA court explained:

         The Court concludes that trial counsel’s strategy was
         reasonable. During the evidentiary hearing in this case,
         [PCRA] counsel presented the expert testimony of Dr.
         Elliott Atkins, a psychologist, and cross-examined trial

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           counsel. [Appellant] testified as well. Trial counsel’s
           testimony was credible; [Appellant] was evasive and
           equivocal.     The Commonwealth’s post-hearing brief
           summarizes the critical facts, all of which the Court finds
           credible and supported by the record:

              [Trial counsel] discussed with [Appellant] the
              Commonwealth’s case against him. [Although trial
              counsel explained] to [Appellant] the significant and
              powerful evidence that clearly established that [he]
              stabbed the victim to death, [Appellant] never
              admitted to killing [the victim]. Instead, [Appellant]
              maintained that he did not recall what happened. . .
              Although [trial counsel] considered the possibility of
              a voluntary manslaughter defense, that pursuit was
              made impossible because [Appellant] insisted that he
              did not recall what happened. Also problematic with
              a possible voluntary manslaughter defense was the
              passage of time [between the date] that [the victim]
              broke up with [Appellant] and the actual killing.

           Commonwealth’s Post-Hearing Memorandum, p. 11 []
           (citations to record omitted). Based on this evidence, the
           Court concludes that [Appellant] failed to prove that [trial
           counsel] provided ineffective assistance. To the contrary,
           the Court concludes that [trial counsel] was quite
           competent, but that the evidence of [Appellant’s] guilt was
           overwhelming.

PCRA Court Opinion, 7/2/14, at 4. Our review of the record and pertinent

case law supports the PCRA court’s conclusions.

     Significantly, the PCRA court credited the testimony of counsel over

the testimony and other allegations made by Appellant at the evidentiary

hearing.    We cannot disturb this determination.     See Commonwealth v.

Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility

determinations are solely within the province of the PCRA court).

     Our Supreme Court has summarized:


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            A person is guilty of “heat of passion” voluntary
         manslaughter if at the time of the killing he or she reacted
         under a sudden and intense passion resulting from serious
         provocation by the victim. “Heat of passion” includes
         emotions such as anger, rage, sudden resentment or terror
         which renders the mind incapable of reason. An objective
         standard is applied to determine whether the provocation
         was sufficient to support the defense of “heat of passion”
         voluntary manslaughter. The ultimate test for adequate
         provocation is whether a reasonable man, confronted with
         this series of events, became impassioned to the extent
         that his mind was incapable of cool reflection.

Commonwealth v. Miller, 987 A.2d 638, 649-650 (Pa. 2009) (citations

omitted).

      Our Supreme Court addressed a similar claim in Commonwealth v.

Mason, 741 A.2d 708 (Pa. 1999), abrogated by another capital appeal in

Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003).              In Mason, the

defendant, after being excluded from a social outing by the victim the night

before, forced his way into the victim’s home and stabbed her eighteen

times. A jury convicted defendant of first-degree murder and the trial court

sentenced him to death. Among the issues the defendant raised on direct

appeal was the claim that “the jury erred in failing to find that he was acting

under the ‘heat of passion’ when he fatally stabbed” the victim. Mason, 741

A.2d at 713.      In rejecting Appellant’s challenge, our Supreme Court

explained:

            Here, [the defendant] does not claim that his quarrel in
         the bar with [the victim], which occurred more than seven
         and one-half hours before the stabbing, caused him to kill
         [her] in the heat of passion. Rather, Appellant claims that
         he was so intoxicated at the time of the stabbing that he


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         can’t remember whether words were exchanged
         which would give rise to a heat of passion defense.
         However, there was no evidence to support a finding that
         [the victim] did anything immediately before the stabbing
         to provoke [the defendant] so as to cause him to act in the
         heat of passion. In fact, [the victim’s] son testified that
         his mother was just lying on the bed when Appellant came
         into the room and began stabbing her. Thus, the record in
         the instant case simply does not support Appellant’s
         speculative claim that he was acting under the heat of
         passion when he stabbed [the victim] to death.

Id. at 714 (citations omitted) (emphasis added).

      Here, Appellant consistently informed trial counsel that he could not

recall stabbing the victim.   Thus, as in Mason, there is no indication that

“words were exchanged which would give rise to a heat of passion defense.”

Also, as in Mason, there is no testimony (from either the victim’s sister or

the man who was on the phone with the victim at the time of the murder) as

to provoking statements made by the victim. Instead, Appellant references

his self-serving testimony that the victim was “saying different nasty things”

to him, and this fact caused him to stab her. N.T., 6/25/13, at 79. Finally,

at the evidentiary hearing, trial counsel testified that “my hands were kind of

tied as it goes to [a voluntary manslaughter] defense because [Appellant]

indicated that he did not recall the events.” Id. at 45.

      Because Appellant maintained that he did not recall the stabbing, the

PCRA court’s conclusion that trial counsel’s decision to forgo a “heat of

passion” defense was reasonable is supported by the record.          See also

Miller, 987 A.2d at 649-50 (rejecting the PCRA petitioner’s claim that trial

counsel was ineffective for failing to call an expert to testify as to his

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“personality makeup” and pursue a “heat of passion” defense; “[o]nce [the

defendant] refused to testify about the events surrounding the killing, he

made it virtually impossible to convince the [fact finder] that the killing was

committed in the ‘heat of passion’”). We thus affirm the PCRA court’s order

denying Appellant post-conviction relief.

      Order affirmed.

      Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014




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