J-S07019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 DANIEL LIVINGSTON                         :
                                           :
                     Appellant             :    No. 1761 EDA 2017

                  Appeal from the PCRA Order June 1, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001554-2011

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 DANIEL LIVINGSTON                         :
                                           :
                     Appellant             :    No. 2149 EDA 2017

                 Appeal from the PCRA Order June 30, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001552-2011


BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                                FILED JULY 09, 2018

      Daniel Livingston appeals from the order dismissing his petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, without a hearing. Livingston alleges he was entitled to an evidentiary

hearing, and ultimately a new trial, due to trial counsel’s ineffectiveness during

his jury trial. We affirm.
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      For a recitation of the complete factual background and procedural

history of this case, we direct the interested reader to the memorandum

decision written by a prior panel of this Court in response to Livingston’s direct

appeal. See Commonwealth v. Livingston, No. 3334 EDA 2012, at 1-6 (Pa.

Super. filed Nov. 8, 2013) (unpublished memorandum).

      Briefly, on September 28, 2009, Jesse Jones was walking to the store

when he ran into Livingston, Gerald Outland, and Parrish Holmes standing on

the corner of Locust and Crowson streets in Philadelphia. Jones observed

Outland and Holmes get into a verbal argument that morphed into a physical

altercation. At some point, Outland removed himself from the physical

altercation, walked over to Livingston, removed a gun from Livingston’s

waistband, and used the gun to shoot Holmes in the stomach. Holmes was

taken to the hospital for treatment. When the police interviewed Holmes

concerning his gunshot wound the next day, Holmes informed the police that

Outland shot him with Livingston’s gun.

      One month later, Detective William Knecht interviewed Holmes again

concerning the events of September 28, 2009. Holmes identified both Outland

and Livingston from a photo array. Prior to leaving the interview, Holmes,

pointing to the photograph of Livingston, informed Detective Knecht, “if you

ever find me dead, he did it.” N.T., Trial, 7/25/12, at 157. Based upon this

information, Detective Knecht obtained and executed search warrants on both

Outland and Livingston’s homes on November 5, 2009. Subsequent to the

search, Livingston agreed to meet with the detectives, but failed to follow

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through. An arrest warrant was issued for Livingston. However, police were

unable to locate him.

      Two days after the police executed the search warrants, Jones ran into

Holmes. Holmes informed Jones that “he was going to get his gun, because

[Livingston] was saying he was going to kill him.” N.T., Trial, 7/26/12, at 67-

68. Ten minutes later, Jones observed Holmes walking towards Boyd and

Woodlawn Street, approximately one block from where Jones was standing on

Chew Street. Holmes walked up to an individual and spoke to him for a few

seconds before being shot five times. Holmes did not survive.

      Police recovered a Ruger 9-mm handgun and an ammunition magazine

near the scene. The police were able to determine that all of the cartridge

casings recovered from the scene were fired from the Ruger 9-mm handgun.

Additionally, three fingerprints recovered from the ammunition magazine

matched Livingston’s fingerprints.

      Based upon this evidence, Livingston was arrested and charged with

numerous offenses arising from these two incidents. A jury trial commenced

on July 25, 2012. At trial, the Commonwealth presented, in part, the

testimony of Detective Knecht and Jones. Detective Knecht testified regarding

Holmes’s identification of Livingston and his belief that Livingston would kill

him. Jones identified Livingston as the individual who shot Holmes and

recounted that Livingston had informed him before Holmes’s death that “he

was going to kill [Holmes] because he thought he was telling on him.” N.T.,

Trial, 7/26/12, at 63-65.

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       On July 31, 2012, the jury convicted Livingston of first-degree murder,

intimidation of a victim, retaliation against a victim, two counts of carrying a

firearm without a license, two counts of possessing an instrument of crime,

and two counts of possession of a firearm by a prohibited person.1

       A panel of this Court affirmed his judgment of sentence on November 8,

2013, and our Supreme Court denied his subsequent petition for allocatur.

       On December 3, 2014, Livingston filed a timely pro se PCRA petition.

The PCRA court appointed counsel who later filed an amended petition. The

PCRA court issued notice of its intent to dismiss Livingston’s petition without

a hearing, and ultimately dismissed the petition.2 This timely appeal follows.

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.




____________________________________________


1 As the two counts of possession of a firearm by a prohibited person required
proof of Livingston’s prior felony as an element of the offense, the trial court
severed these charges from its first charge to the jury, and only charged the
jury on these offenses once they had returned with a verdict on Livingston’s
other charges.

2  While the record reflects that Livingston’s PCRA petition collectively
challenged his convictions under both docket numbers, it appears that a
clerical error resulted in different dismissal dates for each docket number.
Thus, the petition was dismissed on June 1, 2017, for the claims arising under
docket number CP-51-CR-0001554-2011, while the claims arising under
docket number CP-XX-XXXXXXX-2011 were not dismissed until June 30, 2017.
As Livingston filed a timely notice of appeal from each of these orders, this
clerical error does not affect our review.

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Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id.

      “The right to an evidentiary hearing on a post-conviction petition is not

absolute.” Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010)

(citations and brackets omitted). A PCRA court may decline to hold a hearing

where it can determine, from the record, that there are no genuine issues of

material fact. See Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008). “With respect to the PCRA court’s decision to deny a request for an

evidentiary hearing … such a decision is within the discretion of the PCRA court

and will not be overturned absent an abuse of discretion.” Commonwealth

v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citation omitted).

      Livingston’s sole issue on appeal asserts the ineffective assistance of

trial counsel. We presume counsel provided effective assistance; Livingston

has the burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d

699, 708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a claim

of ineffective assistance of counsel, he must show, by a preponderance of the

evidence, ineffective assistance of counsel which … so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.

Super. 2005) (citation omitted). Further,

      [an a]ppellant must plead and prove by a preponderance of the
      evidence that: (1) the underlying legal claim has arguable merit;
      (2) counsel had no reasonable basis for his action or inaction; and
      (3) [a]ppellant suffered prejudice because of counsel’s action or
      inaction.

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Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

A failure to satisfy any prong of the test will require rejection of the entire

claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citations and internal quotation marks omitted).

“Prejudice is established if there is a reasonable probability that, but for

counsel’s errors, the result of the proceedings would have been different. A

reasonable probability is probability sufficient to undermine confidence in the

outcome.” Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013)

(en banc) (citations and internal quotation marks omitted).

      Livingston claims that trial counsel was ineffective in failing to object to

the admission of evidence offered in the form of inadmissible hearsay.

Specifically, Livingston challenges the introduction of Holmes’s statement,

elicited through Detective Knecht’s testimony, that if Detective Knecht ever

found Holmes dead, it was at Livingston’s hand. See N.T., Trial, 7/25/12, at

157. Livingston alleges that this statement is inadmissible hearsay, that trial

counsel had no reasonable basis in failing to object to this statement, and that

this statement was extremely prejudicial.

      Conversely, the Commonwealth and PCRA court contend Livingston’s

claim of ineffectiveness fails because the challenged statement is admissible

evidence. Specifically, the PCRA court found that the statement, while

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constituting hearsay, was admissible under Pennsylvania Rule of Evidence

804(b)(6) Statement Offered Against a Party That Wrongfully Caused the

Declarant's Unavailability. We agree.

     “Hearsay is an out-of-court statement offered to prove the truth of the

matter asserted by the declarant.” Commonwealth v. Puksar, 740 A.2d

219, 225 (Pa. 1999) (citation omitted). While our rules of evidence generally

prohibit the admission of hearsay, there are several exceptions to the rule.

Relevant to the instant case, Rule of Evidence 804(b)(6) provides:

           Rule 804. Hearsay exceptions; declarant unavailable

           (a) Criteria for Being Unavailable. A declarant is
           considered to be unavailable as a witness if the declarant:

                 (4) cannot be present or testify at the trial or hearing
                 because of death or a then-existing infirmity, physical
                 illness, or mental illness …

           (b) The Exceptions. The following are not excluded by the
           rule against hearsay if the declarant is unavailable as a
           witness:

                 (6) Statement Offered Against a Party That Wrongfully
                 Caused the Decedent’s Unavailability. A statement
                 offered against a party that wrongfully caused -- or
                 acquiesced in wrongfully causing -- the declarant’s
                 unavailability as a witness, and did so intending that
                 result.

Pa.R.E. 804(a)(4), (b)(6).

     Under this rule, our courts have found that statements made by a

decedent against defendant, made prior to the decedent’s death, are not

barred by the rules against hearsay if the Commonwealth shows that decedent


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was killed in an attempt to prevent him from participating as a witness in

another matter. See Commonwealth v. Kuncle, 79 A.3d 1173, 1186-1187

(Pa. Super. 2013) (finding decedent’s statement that he was afraid defendant

would attempt to kill him admissible under Rule 804(b)(6) where decedent

was planning to be a witness against defendant in a child custody dispute);

see also Commonwealth v. King, 959 A.2d 405, 413-417 (Pa. Super. 2008)

(holding that Pa.R.E. 804(b)(6) allowed hearsay statements of murder victim

shot to prevent the victim’s testimony regarding illegal arms purchase).

      Here, the evidence adduced at trial clearly supports the conclusion that

Livingston’s alleged motive in killing Holmes was to make him unavailable as

a witness in in a trial arising from the September 28, 2009 incident. Livingston

was aware that he was being investigated concerning this incident. Further,

he informed Jones that “he was going to kill [Holmes] because he thought he

was telling on him.” N.T., Trial, 7/26/12, at 64.

      As the Commonwealth presented sufficient evidence that Livingston

killed Holmes in order to keep him from testifying, and Holmes was clearly

unavailable as a witness, this evidence was properly introduced under the

forfeiture by wrongdoing exception to the hearsay rule. Accordingly,

Livingston’s claim of trial counsel error lacks arguable merit and, thus, his sole

ineffectiveness claim fails. The PCRA court committed no error in dismissing

the petition without a hearing.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/18




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