J-S67027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN M. SMALLWOOD                          :
                                               :
                       Appellant               :   No. 1207 EDA 2018

                   Appeal from the PCRA Order April 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006178-2012


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 17, 2019

        Appellant John M. Smallwood appeals from the order dismissing his first

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546.      Appellant argues that the PCRA court erred in dismissing his

ineffectiveness claims against trial counsel and appellate counsel without a

hearing. We affirm.

        On March 28, 2012, Appellant was charged with first-degree murder and

possession of an instrument of crime in connection with the killing of Shawn

Andrews (the Victim). The matter proceeded to a jury trial, where the details

of the killing were established through Appellant’s statement to police:

           We started out on Thursday at 2:00 in the morning getting
           high. We had some girls over there. He put the girls out
           and then he said he wanted to make another phone call to
           have some more drugs dropped off. I told him I was tired
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*   Retired Senior Judge assigned to the Superior Court.
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         and only had $4 left to my name and I had a lot on my mind.
         After that, the argument continued and he wanted to
         continue to get high and I didn’t want to.

         I got up and went to the bedroom and laid down. He walked
         around the kitchen and started slamming pots around. After
         that, I jumped up and we started to argue. He told me that
         I had to roll. I told him I wasn’t going any place, that I just
         gave him $250, and I gave him $100 on Monday.

         Then the argument started, then everything went boom. I
         might have pushed him out of the way because I was going
         back to the bedroom and then he pushed me. He picked up
         scissors and I picked up a knife. We started fighting. I
         stabbed him in the side of the jaw. I just wanted him to
         stop hollering. I knew if the neighbors came down and saw
         all the blood that it was a wrap.

         He lost the scissors. And the knife that I had bent up, I lost
         the knife. I reached over and grabbed the iron. He was
         laying on his back. I got on top of him and I hit him with
         the iron until it broke. After that, he was just laying there
         breathing and bleeding out. After that, I didn’t want to see
         him, so I ran and got a quilt and covered him up. I knew
         from watching TV that rigor mortis was going to settle in
         and I’m not that strong so I went ahead and dragged him
         into the closet.

         I knew that once rigor mortis set in I couldn’t move him and
         then I passed out on the bed. When I got up it was Friday.
         I collected my things, turned the thermostat up, took some
         of the bloody clothes and put them in a blue bag, then I
         went to 69th Street and dumped them there.

N.T., 7/24/2013, at 149-148.

      The Commonwealth presented expert testimony from Marlon Osbourne,

M.D., assistant medical examiner for the Philadelphia Medical Examiner’s

Office, who testified regarding the Victim’s injuries. Id. at 113. Dr. Osbourne

stated that the fatal stab wound was located on the left side of the Victim’s

neck. Id. at 127. The Victim also sustained several non-fatal stab wounds,


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which were located on the right side of his neck, his chin, his left cheek, his

upper back, and his lower back. Id. at 126-27. In addition, Dr. Osbourne

indicated that the Victim had several lacerations consistent with blunt force

trauma. Id. at 123. The Victim also had multiple abrasions on his hands

which Dr. Osbourne described as “defensive wounds.” Id. at 128.

      Detective Francis Kane testified that he conducted Appellant’s interview

at the Homicide Division. Id. at 135. He stated that most of what Appellant

said in his statement was corroborated at the scene. Id. at 167. However,

the police were unable to recover the pair of scissors that the Victim allegedly

picked up during the altercation. Id. Detective Kane also testified regarding

photographs he took of Appellant’s hand injuries on the day he gave his police

statement. Id. at 164. Detective Kane stated that Appellant did not have

any injuries on his right hand, but had several lacerations on his left hand.

Id. at 165.    Detective Kane opined that the left-hand lacerations were

offensive wounds, likely because “[h]e had the knife in his hand, and as he

was stabbing someone, it slipped.” Id. at 165-66.

      Appellant requested a jury instruction for voluntary manslaughter – heat

of passion. Id. at 97. The Commonwealth argued that the instruction was

unwarranted because nothing in the statement or the record demonstrated

that there was “sudden and intense passion.” Id. at 101. The trial court

denied Appellant’s request and instructed the jury on the elements of first-

degree and third-degree murder.




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      Thereafter, Appellant was convicted of first-degree murder and

sentenced to a mandatory term of life in prison without the possibility of

parole. Appellant filed a direct appeal, and this Court affirmed Appellant’s

judgment of sentence on April 7, 2015. See Commonwealth v. Smallwood,

2231 EDA 2013 (filed April 7, 2015) (unpublished mem.).

      Appellant’s timely pro se PCRA petition, his first, was docketed by the

PCRA court on April 15, 2017. The PCRA court appointed counsel who filed an

amended petition on June 3, 2017. On March 19, 2018, the PCRA court issued

a Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a

hearing. See Rule 907 Not., 3/19/18. The PCRA court dismissed Appellant’s

petition on April 19, 2018. That same day, Appellant filed a timely notice of

appeal.   Both Appellant and the PCRA court subsequently complied with

Pa.R.A.P. 1925.

      Appellant raises the following questions on appeal:

      1. Did the PCRA court err in dismissing Appellant’s PCRA [p]etition
         without a hearing because direct appeal counsel was ineffective
         for failing to raise the denial of Appellant’s request for a
         [v]oluntary [m]anslaughter jury instruction on direct appeal?

      2. Did the PCRA court err in dismissing Appellant’s PCRA [p]etition
         without a hearing because trial counsel was ineffective for
         failing to file a post-sentence [m]otion as to the weight of the
         evidence for the [f]irst-[d]egree [m]urder conviction?

Appellant’s Brief at 4.

      Our standard of review from the dismissal of a PCRA petition “is limited

to examining whether the PCRA court’s determination is supported by the



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evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

      To establish a claim of ineffective assistance of counsel, a defendant

“must show, by a preponderance of the evidence, 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.” Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa. Super. 2007) (citation omitted).

      The burden is on the defendant to prove all three of the following

prongs: “(1) the underlying claim is of arguable merit; (2) that counsel had

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

the errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.”              Id. (citation

omitted); see also Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (“A failure to satisfy any prong of the ineffectiveness test requires

rejection of the claim of ineffectiveness.” (citation omitted)). “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).

      Moreover, a PCRA petitioner is not automatically entitled to an

evidentiary hearing on his petition. See Commonwealth v. Smith, 121 A.3d

1049, 1052 (Pa. Super. 2015).       “[T]he PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact and the

petitioner is not entitled to postconviction collateral relief, and no purpose

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would be served by any further proceedings.” Id. On appeal, we “examine

each of the issues raised in the PCRA petition in light of the record in order to

determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and in denying relief without an evidentiary

hearing.” Id. (citation omitted).

      In his first issue, Appellant argues that direct appeal counsel was

ineffective for failing to challenge the trial court’s denial of his request for a

voluntary manslaughter jury instruction.      Appellant’s Brief at 8.   Appellant

asserts that “although [he] killed [the Victim] with a knife and iron, [the

Victim] was in possession of scissors and, therefore, Appellant acted under a

sudden and intense passion resulting from serious provocation by [the

Victim].”   Id.   He claims that the evidence established that Appellant and

Victim “got into a serious and escalating domestic argument when drugs had

been used and there was a dispute over money.” Id. at 12. He also argues

that “there was screaming and an escalation of physical violence . . . [Victim]

picked up scissors first and then Appellant initially grabbed a knife and stabbed

[Victim].” Id. He contends that, “[u]nder these circumstances, it was a jury

question as to whether Appellant was acting under a sudden and intense

passion resulting from serious provocation.” Id. Appellant concludes that,

based on his version of the facts, he was entitled to a voluntary manslaughter

instruction and direct appeal counsel was ineffective for failing to raise the

issue on appeal. Id.




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      When reviewing a challenge to jury instructions, this Court will “reverse

a [trial] court’s decision only when it abused its discretion or committed an

error of law.” Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super.

2011) (citation omitted). When a trial court refuses to deliver a specific jury

instruction, “it is the function of this Court to determine whether the record

supports the trial court’s decision.”    Commonwealth v. Buterbaugh, 91

A.3d 1247, 1257 (Pa. Super. 2014) (en banc) (citation omitted). “[T]he

relevant inquiry for this Court . . . is whether such charge was warranted by

the evidence in the case.” Commonwealth v. Baker, 963 A.2d 495, 506

(Pa. Super. 2008) (citation omitted).

      Trial courts are not to instruct a jury on legal principles that are not

applicable to the facts presented at trial because such instructions are likely

to confuse jurors and place obstacles in the path of a just verdict.      See

Commonwealth v. Taylor, 876 A.2d 916, 925 (Pa. 2005).             Therefore, a

defendant must establish that the trial evidence would have reasonably

supported a verdict based on the desired charge, and may not claim

entitlement to an instruction that is not supported by the evidence presented

at trial. Id. at 925-26.

      Additionally, “[u]nder Pennsylvania law, a homicide defendant is entitled

to a charge on involuntary or voluntary manslaughter only if the evidence

adduced at trial would reasonably support a verdict on such a charge.”

Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa. Super. 1996) (citations

omitted). “In other words, a trial court can give a manslaughter instruction

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only when there is evidence tending to show that the defendant is not guilty

of the crime of murder but is guilty of the lesser crime of manslaughter.” Id.

(citation omitted).    “In determining whether the evidence would support a

manslaughter charge, we must view the evidence in the light most favorable

to the defendant.” Id. (citation omitted).

      Our Supreme Court has stated that to determine “whether there was

sufficient provocation to create uncontrollable passion in a reasonable person,

we determine whether the killer actually acted in the heat of passion, whether

the provocation lead directly to the slaying of the person responsible for the

provocation, and whether the killer had sufficient cooling off time.”

Commonwealth          v.   Martin,   5   A.3d   177,   186   (Pa.   2010)   (citing

Commonwealth v. McCusker, 292 A.2d 286, 290 (Pa. 1972)).                    “If any

element is missing, the provocation defense fails.” Martin, 5 A.3d at 186

(citation omitted).

      Our Supreme Court has also stated that

      [r]elevant to the heat of passion claim, we note that a defendant
      charged with murder may establish that he is guilty, not of
      murder, but rather of voluntary manslaughter, by proving that, at
      the time of the killing, he was acting under a sudden and intense
      passion resulting from serious provocation by the victim.
      Emotions encompassed by the term passion include anger, rage,
      sudden resentment or terror which renders the mind incapable of
      reason.

      Whether the provocation by the victim was sufficient to support a
      heat of passion defense is determined by an objective test:
      whether a reasonable man who was confronted with the provoking
      events would become impassioned to the extent that his mind was
      incapable of cool reflection. Significantly, we have clarified that
      both passion and provocation must be established, and that if

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      there be provocation without passion, or passion without a
      sufficient cause of provocation, or there be time to cool, and
      reason has resumed its sway, the killing will be murder.

Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012) (citations and

internal quotation marks omitted).

      In dismissing Appellant’s petition, the PCRA court concluded that the

trial court did not abuse its discretion, as the evidence did not reasonably

establish the elements required for a voluntary manslaughter defense. See

PCRA Ct. Op., 5/30/18, at 9. We agree.

      Instantly, Appellant’s statement to police established that Appellant and

the Victim were in an argument when the Victim picked up a pair of scissors.

N.T., 7/24/13, at 148. At that point, Appellant picked up a knife, Appellant

and the Victim fought, and Appellant stabbed the Victim in the side of the jaw.

Id. at 149. Appellant stated that, at that moment, “I just wanted him to stop

hollering. I knew if the neighbors came down and saw all the blood that it

was a wrap.” Id. Thereafter, Appellant stabbed the Victim multiple times

until the knife bent. Id. At that point, Appellant grabbed a clothing iron,

which he used to bludgeon the Victim until it broke. Id. As the Victim laid on

the floor “breathing and bleeding out,” Appellant covered him with a quilt and

dragged him to the closet. Id.

      Given these facts, we agree with the PCRA court’s conclusion that the

evidence at trial did not reasonably support a voluntary manslaughter charge.

See Soltis, 687 A.2d at 1141. Even when viewed in the context of the alleged

argument, the Victim’s act of picking up scissors would not cause a reasonable

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person to become impassioned to the point where he is incapable of cool

reflection and compelled to commit murder. Moreover, the evidence did not

establish that Appellant was under a sudden and intense passion that rendered

him incapable of reason.          See Busanet, 54 A.3d at 55.      As indicated

previously, Appellant’s own statement reflected his reasoned thought process

at the time of the killing.       Therefore, the PCRA court correctly found that

Appellant’s underlying claim was meritless1 and that direct appeal counsel was

not ineffective for failing to raise the issue on appeal. See Loner, 836 A.2d

at 132; see also Daniels 963 A.2d at 419.

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

for failing to file a post-sentence motion preserving his weight of the evidence

claim. Appellant’s Brief at 13. Appellant contends that the “weight of the

evidence does not support a conviction for first-degree [m]urder because the

act was not premeditated or proven not to be impulsive.”             Id. at 16.

Specifically, he argues that the evidence demonstrates that “Appellant and

[the Victim] had been doing drugs, there was an escalating verbal and physical

altercation, and [the Victim] picked up scissors during the altercation.

Appellant then immediately picked up a knife and started stabbing [the

____________________________________________


1 To the extent that Appellant argues that the jury was entitled to determine
whether or not the facts supported a voluntary manslaughter conviction, we
disagree. As noted above, this Court has held that where evidence does not
support a finding of manslaughter, the court is not required to submit the
issue to the jury. See Commonwealth v. Carr, 580 A.2d 1362, 1365 (Pa.
Super. 1990).


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Victim].” Id. at 16. Appellant contends that he was prejudiced by counsel’s

failure to challenge the weight of the evidence “because his conviction is

extremely questionable given the domestic history, mutual antagonism, drug

consumption, apparent impulsiveness, and so forth.” Id. at 17.

      “One of the least assailable reasons for granting or denying a new trial

is the lower court’s conviction that the verdict was or was not against the

weight of the evidence and that a new trial should be granted in the interest

of justice.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation

omitted). “A true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.”   Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super.

2006) (citation omitted). Weight of the evidence claims “[are] addressed to

the discretion of the trial court.” Commonwealth v. Galvin, 985 A.2d 783,

793 (Pa. 2009) (citation omitted).

      Our Supreme Court has explained that

      [t]he weight of the evidence is exclusively for the finder of fact
      who is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses. An appellate court
      cannot substitute its judgment for that of the finder of fact. Thus,
      we may only reverse the . . . verdict if it is so contrary to the
      evidence as to shock one’s sense of justice.

Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999) (citation omitted).

      Moreover, “where the trial court has ruled on the weight claim below,

an appellate court’s role is not to consider the underlying question of whether

the verdict is against the weight of the evidence.”       Commonwealth v.

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Champney, 832 A.2d 403, 408 (Pa. 2003).                 Instead, “appellate review is

limited to whether the trial court palpably abused its discretion in ruling on

the weight claim.” Id.

        Appellant correctly asserts that counsel failed to preserve his weight

claim for appellate review.2 However, as noted by the PCRA court, the trial

court addressed the merits of the issue in its 1925(a) opinion and concluded

that the verdict did not “shock the conscience.” See Trial Ct. Op., 12/20/13,

at 9.

        Based on our review of the record, we agree with the PCRA court that

Appellant’s underlying weight of the evidence claim was meritless. The jury,

as fact finder, was free to believe all, part, or none of the evidence presented

at trial.   Small, 741 A.2d at 672.            The jury concluded that the portion of

Appellant’s statement relating to drug use and his argument with the Victim

were outweighed by the Commonwealth’s evidence that Appellant acted with

intent when he killed the Victim.          The trial court appropriately considered

Appellant’s weight of the evidence challenge, and we find no abuse of

discretion in the trial court’s assessment. See Champney, 832 A.2d at 408.

Accordingly, because Appellant’s underlying claim lacked merit, counsel was

not ineffective for failing to preserve it. See Loner, 836 A.2d at 132; see

also Daniels, 963 A.2d at 419.

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2 On direct appeal, this Court concluded that Appellant waived his challenge
to the weight of the evidence due to counsel’s failure to preserve the issue in
a post-sentence motion. See Smallwood, 2231 EDA 2013.

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     Finally, given our disposition of Appellant’s ineffectiveness claims, we

conclude that the PCRA court did not err in declining to hold an evidentiary

hearing. See Smith, 121 A.3d at 1052.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/19




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