J-S29013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY FITZGERALD

                            Appellant                No. 1175 WDA 2014


                   Appeal from the PCRA Order May 27, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015801-2010


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JULY 16, 2015

        Appellant, Anthony Fitzgerald, appeals pro se from the order entered

May 27, 2014, by the Honorable Jill E. Rangos, Court of Common Pleas of

Allegheny County, which denied Fitzgerald’s petition filed pursuant to the

Post Conviction Relief Act (“PCRA”).1 We affirm.

        A panel of this Court previously summarized the history of this case as

follows.

        On September 9, 2010, Fitzgerald was serving customers at a
        makeshift convenience store located at 6502 Shetland Street in
        Pittsburgh, at which he was employed. Around 11:00 P.M.,
        Duncan Plowden (“Plowden”), a regular customer, approached
        the store’s sliding glass service window and punched Fitzgerald
        in the face. Fitzgerald then shot Plowden in the chest, and
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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      Plowden ultimately died from this wound. The police
      subsequently arrested Fitzgerald and charged him with the
      aforementioned crimes. Following a jury trial, Fitzgerald was
      found guilty of third-degree murder and persons not to possess
      firearms. On September 26, 2011, the trial court sentenced him
      to 20 to 40 years of incarceration for third-degree murder and to
      a concurrent term of 60 to 120 months for the firearms violation.

Commonwealth v. Fitzgerald, 1744 WDA 2011 at 1-2 (Pa. Super., filed

July 5, 2013) (mem. op.), appeal denied, 79 A.3d 1097 (Pa. 2013). On

appeal, this Court affirmed Fitzgerald’s judgment of sentence and our

Supreme Court denied allocatur. See id.

      Fitzgerald filed a timely pro se PCRA petition.          The PCRA court

appointed counsel.      Appointed counsel filed a Motion to Withdraw as

Counsel and an accompanying “no merit” letter.         The PCRA court issued

notice of its intent to dismiss the PCRA petition, granted counsel’s motion to

withdraw, and subsequently dismissed the petition.         This timely pro se

appeal followed.

      Fitzgerald raises the following issues for our review:

      1. Did trial counsel render effective assistance of counsel by
         failing to object to or request a cautionary instruction
         regarding testimony of prior bad acts?

      2. Did trial counsel render effective assistance of counsel for
         failing to present evidence in support of voluntary
         manslaughter under a heat of passion theory?

      3. Was trial counsel ineffective for not presenting an expert
         witness on the effects of a concussion?

      4. Did trial counsel render ineffective assistance for failing to
         impeach a witness with prior inconsistent statements i.e
         (witness Lilisa Byrd)?




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      5. Whether all prior counsel were ineffective for failing to
         present all of the above claims of errors to the trial court, the
         Superior [C]ourt, and the PCRA court; and the cumulative
         effective   of    the  errors   did    prejudice     the   PCRA
         petitioner/Appellant?

Appellant’s Brief at 2.

      “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.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review

is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted).

      In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).    “[T]his Court applies a de novo standard of review to the

PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244,

259 (Pa. 2011) (citation omitted).

      As this Court has repeatedly stated,

      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (1) that the underlying issue has
      arguable merit; (2) counsel's actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from

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       counsel’s act or failure to act. Commonwealth v. Chmiel, 612
       Pa. 333, 30 A.3d 1111, 1127 (2011).

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012).

       Fitzgerald first claims that trial counsel was ineffective for failing to

object to or request a cautionary instruction regarding evidence of alleged

prior bad acts, in the nature of Lilisa Byrd’s2 testimony that Fitzgerald was a

chronic crack cocaine user and was a jealous, physically and verbally abusive

partner. See Appellant’s Brief at 12. “[T]he admission of evidence is within

the sound discretion of the trial court and will be reversed only upon a

showing that the trial court clearly abused its discretion.” Commonwealth

v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012) (internal citations

omitted).

       It is impermissible to present evidence at trial of a defendant’s prior

bad acts or crimes to establish the defendant’s criminal character or

proclivities.   See Pa.R.E. 404(b); Commonwealth v. Hudson, 955 A.2d

1031, 1034 (Pa. Super. 2008). Such evidence, however, may be admissible

“where it is relevant for some other legitimate purpose and not utilized

solely to blacken the defendant’s character.” Commonwealth v. Russell,

938 A.2d 1082, 1092 (Pa. Super. 2007) (citation omitted).

       Instantly, the PCRA court determined that Ms. Byrd’s testimony was

admissible under the res gestae exception to Rule 404(b). See PCRA Court
____________________________________________


2
  Ms. Byrd, who was Fitzgerald’s fiancée, was present at the time the
shooting occurred.



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Opinion, 11/12/14 at 8. “Pennsylvania courts have long recognized the

special significance of evidence which provides [the factfinder] with the res

gestae, or complete history, of a crime.” Commonwealth v. Wattley, 880

A.2d 682, 687 (Pa. Super. 2005) (citation omitted).

      [T]he trial court is not ... required to sanitize the trial to
      eliminate all unpleasant facts from ... consideration where those
      facts are relevant to the issues at hand and form part of the
      history and natural development of the events and offenses for
      which the defendant is charged.

Id. (citation omitted). Rule 404(b)(3), however, mandates that other

crimes, wrongs, or acts evidence “may be admitted in a criminal case only

upon a showing that the probative value of the evidence outweighs its

potential for prejudice.”   Pa.R.E., Rule 404(b)(3).   See also Russell, 938

A.2d at 1092.

      We agree that Ms. Byrd’s testimony was properly admissible as part of

the res gestae of the crime. Ms. Byrd testified that, immediately prior to the

shooting, Fitzgerald’s facial expression was somewhat distorted and he

appeared to be twitching—symptoms she recognized from prior occasions on

which Fitzgerald had smoked crack.      See N.T., Jury Trial, 5/3/11 at 132.

Ms. Byrd also testified that when the victim asked Ms. Byrd whether she was

okay, Fitzgerald became incensed at the thought that the victim was

interested in a sexual relationship with Ms. Byrd. See id. at 134. Several

moments later, Fitzgerald shot the victim.     See id. at 136.     Ms. Byrd’s

testimony that Fitzgerald had a history of crack cocaine use and was both

jealous and abusive in their relationship not only provided a context for the

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crime that occurred, but also provided permissible insight into Fitzgerald’s

state of mind. Accordingly, as we find the trial court properly admitted Ms.

Byrd’s testimony pursuant to Rule 404(b), Fitzgerald’s underlying claim lacks

merit.

      Fitzgerald next claims that trial counsel was ineffective for failing to

request a voluntary manslaughter jury instruction. See Appellant’s Brief at

17. In sum, Fitzgerald alleges that he suffered a concussion because of the

blow he received from the victim, which he contends rendered him incapable

of “cool reflection,” thus negating a finding of malice.   Appellant’s Brief at

20. Fitzgerald provides no evidence, medical or legal, to support the novel

theory that he was medically incapable of acting with malice.        Fitzgerald

further fails to verify that he indeed sustained a concussion immediately

prior to the shooting as claimed.         Correspondingly, Fitzgerald fails to

establish that there is merit to the argument underlying his claim of

ineffectiveness. Accordingly, this claim fails.

      In his next, related claim, Fitzgerald contends counsel was ineffective

for failing to call an expert witness on “the effects of a concussion.”

Appellant’s Brief at 24. Here, Fitzgerald must show that the outcome of the

proceedings would have been different had counsel called an expert medical

witness. However, Fitzgerald again fails to offer any evidence to establish

that he sustained a concussion in the first instance, the manner in which

expert medical testimony would inure to his benefit, or, aside from mere

speculation, the relevance of such testimony to his defense.         We note

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“counsel cannot be considered ineffective for failing to pursue a frivolous

claim.”   Commonwealth v. Sepulveda, 55 A.3d 1108, 1133 (Pa. 2012).

Therefore, Fitzgerald cannot maintain an ineffectiveness claim on this basis.

      In Fitzgerald’s fourth claim of ineffectiveness, he asserts that trial

counsel failed to impeach Ms. Byrd with prior inconsistent statements and

other testimony at trial. Fitzgerald details a litany of alleged discrepancies

between Ms. Byrd’s initial statement to police and her trial testimony. See

Appellant’s Brief at 40-49.         Fitzgerald altogether fails to establish the

manner in which he was prejudiced by these alleged discrepancies, or show

that the outcome of the proceedings would have been different had counsel

impeached Ms. Byrd’s testimony with her prior inconsistent statements.

Therefore, Fitzgerald fails to establish counsel’s ineffectiveness.

      Fitzgerald’s final   argument asserts that all prior counsel were

ineffective for failing to present the above allegations of ineffectiveness. As

we have already determined that Fitzgerald’s ineffectiveness claims lack

merit, this claim must also fail.

      Accordingly, having found no merit in the issues on appeal, we will

affirm the order below.

      Order affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2015




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