J-S93042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYRIRK HARRIS,

                            Appellant                 No. 689 EDA 2016


                 Appeal from the PCRA Order November 6, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0004135-2012


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:FILED FEBRUARY 07, 2017

        Appellant, Tyrirk Harris, appeals pro se and nunc pro tunc1 from the

denial of his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The PCRA court granted Appellant leave to appeal nunc pro tunc because
notice of his PCRA petition’s denial was sent to counsel, who previously had
been granted leave to withdraw. Because Appellant did not receive the
notice due to a breakdown in the court’s operations, the court found that
appeal nunc pro tunc was warranted. We agree. See Commonwealth v.
Stock, 679 A.2d 760, 764 (Pa. 1996) (“Reading the civil cases and criminal
cases together, the principle emerges that an appeal nunc pro tunc is
intended as a remedy to vindicate the right to an appeal where that right
has been lost due to certain extraordinary circumstances.”) (citations
omitted); see also Fischer v. UPMC Northwest, 34 A.3d 115, 120 (Pa.
Super. 2011) (“Generally, a [t]rial [c]ourt may grant an appeal nunc pro
tunc when a delay in filing is caused by extraordinary circumstances
(Footnote Continued Next Page)
J-S93042-16


        On February 1, 2013, a jury convicted Appellant of murder of the third

degree and possession of an instrument of crime.2 The charges related to

Appellant’s fatal shooting of a neighbor who complained to him about

Appellant’s dog entering his yard and making a mess.          The trial court

sentenced Appellant to an aggregate term of incarceration of not less than

twenty nor more than forty years. On February 21, 2014, a panel of this

Court affirmed the judgment of sentence. (See Commonwealth v. Harris,

97 A.3d 810 (Pa. Super. 2014) (unpublished memorandum)). Our Supreme

Court denied further review on June 12, 2014.        (See Commonwealth v.

Harris, 94 A.3d 1008 (Pa. 2014)).

        On June 15, 2015, Appellant filed a timely pro se PCRA petition.3

Appointed counsel filed a motion to withdraw and a Turner/Finley4 no merit

letter on September 17, 2015. On October 1, 2015, the court filed notice of

its intention to dismiss Appellant’s petition without a hearing.          See

                       _______________________
(Footnote Continued)

involving fraud or some breakdown in the court’s operations through a
default of its officers.”) (citation and internal quotation marks omitted).
2
    18 Pa.C.S.A. §§ 2502(c) and 907, respectively.
3
  On July 29, and August 14, 2015, Appellant filed amended pro se PCRA
petitions.  Although Appellant did not seek permission to file these
amendments, the PCRA court and counsel addressed the issues raised
therein.
4
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




                                            -2-
J-S93042-16


Pa.R.Crim.P. 907(1).5        The PCRA court denied the petition and granted

counsel’s motion to withdraw on November 6, 2015.                   Appellant timely

appealed.6

             As a prefatory matter, although this Court is willing to
       construe liberally materials filed by a pro se litigant, pro se
       status generally confers no special benefit upon an appellant.
       Accordingly, a pro se litigant must comply with the procedural
       rules set forth in the Pennsylvania Rules of the Court. This Court
       may quash or dismiss an appeal if an appellant fails to conform
       with the requirements set forth in the Pennsylvania Rules of
       Appellate Procedure. [See] Pa.R.A.P. 2101.

Commonwealth v. Freeland, 106 A.3d 768, 776-77 (Pa. Super. 2014)

(case citations omitted).

       In this case, Appellant did not include a statement of questions

involved in his brief.        (See Appellant’s Brief, at i-iii, 2-12); see also

Pa.R.A.P. 2111(a)(4), 2116(a). “The rule requiring a statement of questions

involved is to be considered in the highest degree mandatory, admitting of

no exception; ordinarily no point will be considered which is not set forth in

the    statement       of    questions         involved   or   suggested   thereby.”

Commonwealth v. Maris, 629 A.2d 1014, 1016 (Pa. Super. 1993) (citing

____________________________________________


5
 According to the PCRA court’s opinion, Appellant responded to the Rule 907
notice pro se on October 19, 2015. (See PCRA Court Opinion, 11/06/15, at
2). However, the response is not on the docket.
6
   The PCRA court did not order, and Appellant did not file, a statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). The court did not
file a Rule 1925(a) opinion. See Pa.R.A.P. 1925(a).




                                           -3-
J-S93042-16


Pa.R.A.P. 2116(a)) (internal quotation marks omitted). Therefore, it would

be within the province of this Court to dismiss the claims raised in the

argument section of Appellant’s brief. However, “in the interest of justice we

[will] address the arguments that [we] can reasonably [] discern[.]”

Freeland, supra at 777.

      Appellant raises three claims of trial counsel’s ineffectiveness for our

review. (See Appellant’s Brief, at 6-12). Specifically, he claims that counsel

was ineffective for failing to object to the trial court’s “giving the jury the

option of adjudicating [him] guilty of any degree of murder other than

first[]”; for “facilitating [] the suppression of the two knives;” and for

“facilitating the Commonwealth’s use of slanderous testimonial evidence

about [Appellant] from Officer Brian Gordon[.]” (Appellant’s Brief, at 6, 8,

10). Appellant’s claims lack merit.

      Our standard of review for an order denying PCRA relief is well-settled:

             This Court analyzes PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record and we do not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.
      Similarly, we grant great deference to the factual findings of the
      PCRA court and will not disturb those findings unless they have
      no support in the record. However, we afford no such deference
      to its legal conclusions. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review is
      plenary. . . .

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citations,

quotation marks, and brackets omitted).


                                      -4-
J-S93042-16


                   [I]n order to obtain relief based on [an
            ineffective assistance of counsel (“IAC”) ] claim, a
            petitioner must establish: (1) the underlying claim
            has arguable merit; (2) no reasonable basis existed
            for counsel’s actions or failure to act; and (3)
            petitioner suffered prejudice as a result of counsel’s
            error such that there is a reasonable probability that
            the result of the proceeding would have been
            different absent such error.

             A failure to satisfy any prong of the test for ineffectiveness
      will require rejection of the claim. Trial counsel is presumed to
      be effective, and a PCRA petitioner bears the burden of pleading
      and proving each of the three factors by a preponderance of the
      evidence.

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015), appeal

denied, 141 A.3d 479 (Pa. 2016) (citations omitted).

      Here, Appellant first claims that trial counsel’s failure to object to “the

[c]ourt’s giving the jury the option of adjudicating [him] guilty of any degree

of murder other than first-degree” violated his constitutional rights.

(Appellant’s Brief, at 6; see id. at 6-7). Appellant maintains that, because

the information charged him with first degree murder, and the assistant

district attorney represented at the preliminary hearing that there was

enough evidence to hold Appellant over on that charge, “the third-degree

murder conviction achieved in this case ran afoul of [his] constitutional

rights to notice of charges, jury trial, burden of proof, post-trial rights, and

effective assistance of counsel.” (Id. at 6). This issue lacks merit.

      It is well-settled that “[t]he purpose of the information is to advise the

accused of the allegations and the crimes charged, to give sufficient notice


                                      -5-
J-S93042-16


to allow the opportunity to prepare a defense, and to define the issues for

trial.        The     grading   of    the     offense     is    not   an     element    thereof[.]”

Commonwealth v. Kisner, 736 A.2d 672, 674 (Pa. Super. 1999) (citation

omitted).       In other words, “[a]n information need not specify a degree of

murder[.]”          Commonwealth v. Chambers, 852 A.2d 1197, 1199 (Pa.

Super. 2004), appeal denied, 871 A.2d 188 (Pa. 2005).

         In    this    case,    a    review    of   the        information    reveals    that   the

Commonwealth charged Appellant with murder generally, pursuant to 18

Pa.C.S.A. § 2502, not murder in the first degree.                             (See Information,

4/11/12, at 1). Specifically, it stated that Appellant:

         Intentionally and with malice caused the death of another human
         being; and/or while engaged as a principal or as an accomplice
         in the perpetration of a felony, with malice caused the death of
         another human being intentionally, knowing[ly], recklessly, or
         negligently; and/or with malice caused the death of another
         human being knowingly, recklessly, or negligently.

(Id.).

         We conclude that this information filed by the Commonwealth placed

Appellant on notice of the murder charge against him.                                   (See id.).

Therefore, the PCRA court properly found that counsel was not ineffective for

failing to raise a meritless objection about Appellant’s conviction of third

degree murder.            Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa.

2006) (“Counsel will not be deemed ineffective for failing to raise a meritless

claim.”) (citation omitted); see Rigg, supra at 1084. Appellant’s first issue

lacks merit.

                                                -6-
J-S93042-16


      In his second issue, Appellant maintains that trial counsel was

ineffective because he “facilitat[ed] . . . the suppression” of two knives found

on the victim.    (Appellant’s Brief, at 8; see id. at 8-9).    Specifically, he

argues that, if the knives had been produced, it would be “reasonable to

conclude” that his use of deadly force was justified. (Id. at 9). This issue

lacks merit.

      In addressing this issue, the PCRA court observed:

      Trial counsel cross-examined both Officers Robert Flade and
      Steven Hancock, where he elicited that the decedent was
      carrying two knives at the time of the murder. While [Appellant]
      testified that he killed the decedent in self-defense, during cross-
      examination, he stated that he did not see the decedent carry a
      knife at the time of the murder. . . . [T]he jury was under no
      obligation to accept [Appellant’s] flawed justification defense
      and, in fact, chose not to. This [c]ourt agrees [Appellant’s]
      argument is without merit.

(PCRA Ct. Op., at 9) (record citations omitted). We agree.

      Our review of the record confirms that the jury knew that the victim

was carrying knives at the time of his murder because Appellant’s counsel

thoroughly cross-examined the officers about them.             (See N.T. Trial,

1/30/13, at 30, 34, 40, 46-47, 64). In fact, Appellant testified that he had

not had any prior confrontations with the victim, and did not see him with

any weapons on the day of the incident.         (See id. at 140; N.T. Trial,

1/31/13, at 22-23, 36). Therefore, Appellant has failed to establish that he

was somehow prejudiced by the fact that the jury did not see the knives

themselves.      The PCRA court properly found that trial counsel was not


                                     -7-
J-S93042-16


ineffective on this basis.   See Rigg, supra at 1084.       Appellant’s second

issue lacks merit.

      In his third claim, Appellant maintains that counsel was ineffective for

failing to object to Officer Brian Gordon’s testimony because it was

impermissible testimony about his character. (See Appellant’s Brief, at 10-

11). This issue lacks merit because it is belied by the record, which reflects

that trial counsel did, in fact, object and move for a mistrial, which a panel

of this Court found the trial court properly denied.

      Specifically, this Court observed:

            “The often-stated rule in Pennsylvania governing evidence
      of other crimes is that such evidence is not admissible solely to
      show a defendant’s bad character or propensity for continuing
      criminal acts.” Commonwealth v. Ragan, 645 A.2d 811, 819
      (Pa. 1994) (citation omitted). “However, not all references
      which may indicate prior criminal acts warrant reversal.” Id. [].
      “Mere passing references to prior criminal activity will not require
      reversal unless the record illustrates definitively that prejudice
      resulted from the reference.”        Id. (citation and internal
      quotations omitted). “An immediate curative instruction to the
      jury may alleviate any harm to the defendant that results from
      reference to prior criminal conduct.”        Commonwealth v.
      Morris, 519 A.2d 374, 377 (Pa. 1986) [(citations omitted)].

            The testimony of Officer Gordon in the instant case was an
      unexpected response to a proper question[.] . . . As part of its
      rebuttal case, the Commonwealth called Officer Gordon and
      asked him to state whether Appellant’s reputation for being
      peaceful and law abiding was good, bad, or beyond the officer’s
      knowledge. Phrased as such, the question asked for permissible
      testimony regarding Appellant’s general reputation and in a
      manner to avoid improper references to specific instances of
      criminal conduct.      Officer Gordon stated that he “locked
      [Appellant] up for─[,]” but was interrupted [by defense counsel’s
      objection] and did not state the reason for the arrest or make
      reference to a specific crime charged. (See N.T. Trial, 1/31/13,

                                     -8-
J-S93042-16


      at 83). The trial court immediately directed the jury to disregard
      the comment and struck it from the record. Moreover, the trial
      court told the jury that the charges briefly alluded to had been
      withdrawn. (See id. at 88-89). . . . Thus, the record does not
      definitively illustrate that prejudice resulted from the passing
      reference to unspecified criminal conduct inadvertently elicited
      from Officer Gordon. Accordingly, the trial court did not abuse
      its discretion in denying Appellant’s request for a mistrial. . . .

(Commonwealth        v.   Harris,   No.    1473    EDA    2013,   unpublished

memorandum at *6-7 (Pa. Super. filed Feb. 21, 2014) (some record citation

formatting provided)).

      Based on the foregoing, Appellant’s claim that counsel was ineffective

for not objecting to Officer Gordon’s testimony lacks merit, both because it is

belied by the record, and because this Court already concluded that the trial

court correctly found that Appellant was not prejudiced by the passing

reference immediately followed by a curative instruction.      Therefore, the

PCRA court properly denied Appellant’s petition. See Spotz, supra at 1210;

Rigg, supra at 1084.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/2017




                                     -9-
