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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                            :
                                          :
EDWARD LEON MAJOR,                        :
                                          :
                  Appellant               :           No. 212 MDA 2015

        Appeal from the PCRA Order entered on December 30, 2014
            in the Court of Common Pleas of Lancaster County,
              Criminal Division, No. CP-36-CR-0001619-2010

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 22, 2015

      Edward Leon Major (“Major”) appeals from the Order denying his

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

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

      On October 24, 2004, Major, along with three co-conspirators, entered

Heather Nunn’s (“Nunn”) home at 224 Pearl Street, Lancaster County, in an

attempt to rob Nunn. With her two children upstairs, Nunn confronted Major

at the front door. A struggle ensued between the two parties, at which point

Nunn was shot three times in her chest at point blank range. Nunn died as a

result of the gunshot wounds. Early investigations failed to link Major and

his accomplices to the murder. On December 9, 2009, detectives, following

up on a lead, interviewed Major’s cousin, Kevin Major (“Kevin”).        Kevin

identified Major and three other men as the men responsible for the
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unsolved crime. Kevin also identified Major as the triggerman who shot and

killed Nunn.     Thereafter, Major and his co-conspirators were taken into

custody and charged with Nunn’s murder.

        On March 21, 2011, following a two-week jury trial, Major was

convicted of Murder of the First Degree.1 The trial court sentenced Major to

life in prison without the possibility of parole.       This Court affirmed the

judgment of sentence, and the Pennsylvania Supreme Court denied

allowance of appeal.      See Commonwealth v. Major, 48 A.3d 484 (Pa.

Super. 2012) (unpublished memorandum), appeal denied, 54 A.3d 347 (Pa.

2012).

        Major filed a timely pro se PCRA Petition.        Major was appointed

counsel, who then filed an amended Petition. A hearing was held on August

14, 2014.     Thereafter, the PCRA court denied the Petition.      Major filed a

timely Notice of Appeal.

          On appeal, Major raises the following question for our review:

“Whether [Major] was entitled to Post Conviction Relief due to ineffective

assistance of counsel[?]” Brief for Appellant at iii.

              We review an order [denying] a petition under the PCRA in
        the light most favorable to the prevailing party at the PCRA
        level. This review is limited to the findings of the PCRA court
        and the evidence of the record. We will not disturb a PCRA
        court’s ruling if it is supported by evidence of record and is free
        of legal error.



1
    18 Pa.C.S.A. § 2502(a).


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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

          Major contends that trial counsel was ineffective for failing to request a

change of venue. Brief for Appellant at 5-8. Major argues that a change of

venue was necessary in order to receive a fair and impartial trial due to pre-

trial publicity.     Id. at 6.     Major directs this Court’s attention to local

newspaper articles published after the murder, including six articles between

October 24, 2004, and October 31, 2004, two additional articles in

December 2004, and one in March 2005. Id. at 6-8. Major also asserts that

three more additional articles were published in March and April 2010,

around the time of trial. Id. at 7, 8; see also id. at 7 (where Major argues

that there were also articles regarding the trial itself, during the time of the

trial).    Major claims he raised the issue with counsel, and that one juror

indicated she had read articles about the case prior to trial. Id. at 7. Major

contends that he was prejudiced by his trial counsel’s ineffectiveness in not

requesting a venue change. Id. at 9.

          To succeed on an ineffectiveness claim, Major must demonstrate by

the preponderance of the evidence that

          (1) [the] underlying claim is of arguable merit; (2) the particular
          course of conduct pursued by counsel did not have some
          reasonable basis designed to effectuate his interests; and (3) but
          for counsel’s ineffectiveness, there is a reasonable probability
          that the outcome of the proceedings would have been different.




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Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). “A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.”

Commonwealth v. Bryant, 855 A.2d 726, 736 (Pa. 2004).                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).

             A change in venue is compelled whenever a trial court
      concludes a fair and impartial jury cannot be selected from the
      residents of the county where the crime occurred. As a general
      rule, for a defendant to be entitled to a change of venue because
      of pretrial publicity, he or she must show that the publicity
      caused actual prejudice by preventing the empaneling of an
      impartial jury. The mere existence of pretrial publicity alone,
      however, does not constitute actual prejudice.

Commonwealth v. Briggs, 12 A.3d 291, 313 (Pa. 2011) (citations

omitted). The jurors are not required to be totally ignorant of the facts and

issues involved. Id. “It is sufficient if the juror can lay aside his impression

or opinion and render a verdict based on the evidence presented in court.”

Id. at 314 (citation omitted).

      Nevertheless, there are some instances in which pretrial publicity can

be so pervasive and inflammatory that a defendant does not have to prove

actual prejudice. See id.

      Prejudice will be presumed whenever a defendant demonstrates
      that the pretrial publicity: (1) was sensational, inflammatory,
      and slanted toward conviction, rather than factual and objective;
      (2) revealed the defendant’s prior criminal record, if any, or
      referred to confessions, admissions or reenactments of the crime
      by the defendant; or (3) derived from official police or
      prosecutorial reports. However, if the defendant proves the
      existence of one or more of these circumstances, a change of
      venue will still not be compelled unless the defendant also


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      demonstrates that the presumptively prejudicial pretrial publicity
      was so extensive, sustained, and pervasive that the community
      must be deemed to have been saturated with it, and that there
      was insufficient time between the publicity and the trial for any
      prejudice to have dissipated.

Briggs, 12 A.3d at 314 (citations and quotation marks omitted).

      At the PCRA hearing, trial counsel testified that media attention

leading up to the trial was nothing out of the ordinary. See N.T., 8/14/14,

at 20. Counsel testifies that the initial articles from 2004 provided factual

information that Nunn was the mother of two, was shot and killed in her

home while the children were upstairs, and that no arrests had been made in

connection with the crime. Id. at 23-5. In addition, counsel stated that the

two 2005 articles briefly addressed the case as an example of stalled

investigations   in   Lancaster   County,   while   referencing   other   stalled

investigations in the community. Id. at 25. Further, counsel testified that

the 2010 articles reiterated the facts of the case with the additional

information that Major and his co-conspirators were arrested and charged

with the crime. Id. Trial counsel indicated that he received no calls at the

office regarding the case, and press coverage was minimal. Id. at 20. Trial

counsel further stated that, at the time of trial, the case was not fresh in the

minds of the public. Id.

      Our review discloses that the publicity was far from being extensive,

sustained, and pervasive, as required for the presumption of prejudice to

support a motion for change of venue.         See Briggs, 12 A.3d at 314.



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Indeed, the record does not support Major’s claim that jurors would recall or

rely on the 2004 and 2005 articles written six years before trial.        See

Commonwealth v. Tharp, 830 A.2d 519, 529 (Pa. 2003) (stating there

was a sufficient lapse of time between the end of the complained-of media

coverage and the beginning of jury selection for the adverse effects of the

publicity to dissipate).   Further, contrary to Major’s argument that the case

was a “cold case” that “sticks in members of the community’s minds,” Brief

for Appellant at 8, a “cold case” does not warrant a presumption of

prejudice.   Finally, the 2010 articles objectively informed the public about

the murder and that Major had been arrested.        See PCRA Court Opinion,

12/30/14, at 6, 7.

      Additionally, the record does not support Major’s claim that pretrial

publicity resulted in actual prejudice by preventing the impaneling of an

impartial jury. See id. at 313. Eleven of the twelve jurors had never heard

of the case before. See N.T., 8/14/14, at 21. Further, while one juror had

read about the case once in the paper, she was instructed that such

information was not evidence, and understood that it could not be

considered in her deliberation.     See N.T., 3/7/11, at 402-13; see also

Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992) (stating that the

presumption in our law is that the jury follows a trial court’s instructions).

Further, trial counsel testified that he would have used a peremptory strike

during voir dire if he felt that any prospective juror was prejudiced by what



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they had read or heard about the case. N.T., 8/14/14, at 21-22. Though

pretrial publicity existed to a limited extent, Major fails to establish actual

prejudice requiring a change of venue. See Briggs, 12 A.3d at 313.

      Based upon the foregoing, Major’s PCRA Petition fails to state a claim

of arguable merit.      Accordingly, Major’s ineffectiveness claim fails.   See

Commonwealth         v.   Eichinger,    108   A.3d   821,   831   (Pa.   2014);

Commonwealth v. Washington, 927 A.2d 586, 603 (Pa. 2007).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2015




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