J-S04022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    KINTA STANTON

                             Appellant               No. 1665 EDA 2019


                    Appeal from the PCRA Order May 7, 2019
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0007248-2008

BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.:                               FILED MAY 4, 2020

        Appellant, Kinta Stanton, who is serving a sentence of 12½—25 years’

imprisonment for conspiracy to commit third degree murder and involuntary

manslaughter,1 appeals from an order denying his petition for relief under the

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Appellant argues that

trial counsel was ineffective for failing to move to sever his case from his co-

defendants. We affirm.

        On March 26, 2008, Appellant left Simon Gratz High School in the middle

of the school day with several friends, including co-conspirators Ameer Best,

Nashir Fisher, Rasheem Bell, and Arthur Alston, and rode the subway to a

shopping mall on Market Street in downtown Philadelphia. While the group

walked around the subway concourse, they discussed how they were “not


____________________________________________


1   18 Pa.C.S.A. §§ 903 and 2504, respectively.
J-S04022-20



scared” to punch a complete stranger.       In the course of the conversation,

Appellant and each of his co-conspirators expressed willingness to take part

in such an attack.

      About ten minutes later, at about 2:30 p.m., Appellant and his co-

conspirators began following Sean Conroy, who was on his way to a Starbucks

coffee shop, where he worked as a manager. After following Conroy together

for two or three minutes, Alston approached Conroy and punched him in the

head from behind.    Appellant and each of the other co-conspirators joined

Alston in punching Conroy.       Each person, including Appellant, hit Conroy

multiple times. Conroy, who suffered from asthma, collapsed, but the group

continued their attack. Appellant and his co-conspirators continued to beat

Conroy after he showed signs of physical distress, and several of them began

to kick and stomp him as well.

      Alerted by Conroy’s cry for help and the assailants’ “raucous laughter,”

two transit police officers rushed to intervene. When Officer Omari Bervine

arrived, one of the attackers said “oh shit,” and they all fled. Officer Bervine

gave chase, capturing Appellant before he could escape the concourse.

Conroy, who lost consciousness, was rushed to Thomas Jefferson University

Hospital, where he was pronounced dead within minutes.            The medical

examiner determined, through an autopsy, that “[t]he cause of death was

asthma, contributed to by multiple blunt force injuries, and the manner of

death was [h]omicide.” Conroy suffered abrasions and bruises in five separate

regions of his head that were consistent with having been punched; four

                                      -2-
J-S04022-20



broken ribs consistent with having been kicked or stomped; and abrasions to

both legs consistent with having been kicked or stomped. The stress of the

assault triggered an acute asthma attack, leading to a fatal loss of oxygen to

his brain.

      Appellant and his co-conspirators were interviewed separately by police.

Each gave statements admitting involvement in the conspiracy but attempting

to minimize their roles in the attack.   Each admitted to agreeing with the

others to attack Conroy but claimed not to have landed any blows.

      Appellant was charged with criminal homicide and conspiracy and was

tried together with his co-conspirators. At trial, the Commonwealth relied on

Appellant’s statement, the testimony of the transit officers and the medical

examiner, and the testimony of co-conspirator Raheem Bell, who already had

pleaded guilty to third-degree murder and criminal conspiracy. The jury found

Appellant guilty of involuntary manslaughter and criminal conspiracy to

commit third-degree murder.

      The Superior Court affirmed the judgment of sentence for involuntary

manslaughter but vacated the judgment of sentence for criminal conspiracy

on the ground that conspiracy to commit third degree murder was not a

cognizable offense under Pennsylvania law. The Commonwealth appealed to

our Supreme Court, which reinstated the judgment of sentence for criminal

conspiracy. Commonwealth v. Fisher, 80 A.3d 1186, 1195-96 (Pa. 2013)

(conspiracy to commit third degree murder is cognizable offense under

Pennsylvania law).

                                    -3-
J-S04022-20



      On September 16, 2014, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel, who filed an amended petition claiming

that trial counsel was ineffective for failing to request a motion to sever

Appellant’s case from his co-defendants. Following issuance of a Rule 907

notice of its intent to dismiss, the PCRA court dismissed the petition. This

timely appeal followed. Without ordering Appellant to file a Pa.R.A.P. 1925

statement, the PCRA court filed an opinion articulating its reasons for

dismissing Appellant’s petition.

      Appellant raises a single argument in this appeal: “Did the Trial/PCRA

Court err in dismissing the [PCRA] petition, without a hearing, even though

Appellant pled that he was victimized by ineffective assistance of trial counsel

who failed to file a pretrial Motion for Severance?” Appellant’s Brief at 3. No

relief is due because Appellant cannot demonstrate at the outset arguable

merit.

      We presume counsel’s effectiveness, and Appellant bears the burden of

proving otherwise.      Commonwealth v. Urwin, 219 A.3d 167, 172 (Pa.

Super. 2019). To establish ineffectiveness of counsel, a PCRA petitioner must

plead and prove: (1) his underlying legal claim has arguable merit; (2)

counsel’s actions lacked any reasonable basis; and (3) counsel’s actions

prejudiced him.   Id.    Failure to satisfy any of these three prongs requires

dismissal of the claim. Id.

      When reviewing a PCRA order, we examine whether the record supports

the PCRA court’s factual findings and whether its legal conclusions are free

                                      -4-
J-S04022-20



from error. Commonwealth v. Hannibal, 156 A.3d 197, 206 (Pa. 2016).

We view the PCRA court’s findings and evidence of record in the light most

favorable to the prevailing party. Commonwealth v. Koehler, 36 A.3d 121,

131 (Pa. 2012). The PCRA court’s credibility determinations, when supported

by the record, are binding, but we review the PCRA court’s legal conclusions

de novo.   Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013). The

petitioner has the burden of persuading us that the PCRA court erred and that

such error requires relief. Commonwealth v. Wholaver, 177 A.3d 136, 144-

45 (Pa. 2018).

      Appellant’s claim lacks arguable merit because a motion to sever would

have been unsuccessful. The decision whether to sever trials of codefendants

is within the sound discretion of the trial court, and we will not disturb this

decision absent a manifest abuse of discretion.          Commonwealth v.

Wharton, 607 A.2d 710, 717 (Pa. 1992); see Pa.R.Crim.P. 582(A)(2) and

583. In cases where co-defendants are charged with conspiracy, severance

is disfavored because

      [i]t would impair both the efficiency and the fairness of the
      criminal justice system to require . . . that prosecutors bring
      separate proceedings, presenting the same evidence again and
      again, requiring victims and witnesses to repeat the inconvenience
      (and sometimes trauma) of testifying, and randomly favoring the
      last tried defendants who have the advantage of knowing the
      prosecution’s case beforehand. Joint trials generally serve the
      interests of justice by avoiding inconsistent verdicts and enabling
      more accurate assessment of relative culpability.




                                     -5-
J-S04022-20


Commonwealth v. Travers, 768 A.2d 845, 847 (Pa. 2001). Here, severance

was unwarranted because Appellant and his co-defendants were charged with

conspiracy; the vast majority of the evidence presented at trial was equally

admissible against all three of them; and the prosecution’s case required the

testimony of fifteen witnesses, including the victim’s fiancée. Separate trials

for each defendant under these circumstances “would have placed a heavy

burden upon the judicial system as well as the public,” Commonwealth v.

Jones, 668 A.2d 491, 502 (Pa. 1995), needlessly subjected the witnesses to

great inconvenience and trauma, and randomly favored whichever of the three

defendants was tried last.

      We also observe that the record reflects Appellant’s co-defendant, Best,

filed a motion for severance prior to trial, but the trial court denied the motion.

Best filed a direct appeal.    In the course of affirming Best’s judgment of

sentence, this Court held that the trial court properly denied the motion for

severance. Commonwealth v. Best, —A.3d—, 3273 EDA 2009, at 9-10 (Pa.

Super., Feb. 2, 2011) (unpublished memorandum). This result demonstrates

that it would have been an exercise in futility for Appellant to have moved for

severance.

      Appellant next contends that his defense was “antagonistic” with those

of his co-defendants simply because he claimed not to have struck the victim.

As an initial matter, the Commonwealth’s evidence established that Appellant

indeed struck the victim. N.T. 8/17/09, at 248. Although each defendant


                                       -6-
J-S04022-20


attempted to shift blame from himself by pointing the finger at the other

defendants, such defenses are not antagonistic. As our Supreme Court once

said:

        [T]he mere fact that there is hostility between defendants, or that
        one may try to save himself at the expense of another, is in itself
        not sufficient grounds to require separate trials. In fact, it has
        been asserted that the fact that defendants have conflicting
        versions of what took place, or the extents to which they
        participated in it, is a reason for rather than against a joint trial
        because the truth may be more easily determined if all are tried
        together.

Commonwealth v. Birdsong, 24 A.3d 319, 336 (Pa. 2011). Thus, the fact

that Appellant claimed not to have struck the victim and blamed the other

defendants for the victim’s death provided good reason to try him with the

other defendants, because it was easier to determine the truth by trying them

together.

        Finally, we reject Appellant’s contention that severance was necessary

to avoid implicating him through admission of his co-defendants’ statements

to police. The co-defendants’ statements were properly redacted pursuant to

Bruton v. United States, 391 U.S. 123 (1968), and its progeny to replace

references to Appellant with non-specific words and phrases such as “another

guy.” N.T. 8/19/09, at 70-73, 229-36. The trial court further guarded against

any danger of undue prejudice by instructing the jury that any of the co-

defendants’ statements could only be considered against the co-defendant

who made the statement. N.T. 8/24/09, 198-99. Thus, admission of the co-

defendants’ statements did not require severance. Travers, 768 A.2d at 848

                                        -7-
J-S04022-20


(severance unnecessary because substitution of phrases such as “the other

man” for any specific references to defendant by name was sufficient to

protect his Confrontation Clause rights); Commonwealth v. Overby, 809

A.2d 295, 303 (Pa. 2002) (co-defendant’s statement that implicated

defendant by contextual implication through reference to other trial evidence

admissible with redaction and cautionary instruction).

      For these reasons, the PCRA court properly dismissed Appellant’s PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/04/2020




                                    -8-
