J-S23003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    DANNY KEITH KIRTLEY,

                             Appellant                No. 113 WDA 2018


            Appeal from the PCRA Order Entered December 19, 2017
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0000462-2011


BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED JUNE 12, 2019

        Appellant, Danny Keith Kirtley, appeals from the post-conviction court’s

December 19, 2017 order denying his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises three

claims of ineffective assistance of counsel (IAC).    After careful review, we

affirm.

        In February of 2011, Appellant was arrested and charged with single

counts of criminal homicide, 18 Pa.C.S. § 2501(a), voluntary manslaughter

(unreasonable belief), 18 Pa.C.S. § 2503(b), and simple assault, 18 Pa.C.S. §

2701(a). He was also charged with two counts of aggravated assault under




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S23003-19



18 Pa.C.S. §§ 2702(a)(1) and 2702(a)(4). The PCRA court summarized the

pertinent evidence that was presented at Appellant’s jury trial, as follows:

            This case arises from the fatal shooting of Trevor Compton
      (hereinafter “Victim”) by [Appellant] on February 10, 2011. The
      shooting occurred at the work place of [Appellant] and the
      Victim[,] located in North Strabane Township, Washington
      County. The employer, David “Matt” Rosenboom, owner of
      Rosenboom Welding and Angel Logistics and primary supervisor
      of the Victim and [Appellant], testified that his employee roster in
      February of 2011 consisted of the Victim, [Appellant], Chris Goss,
      Roy Moll, and Richard Smith. All of Mr. Rosenboom’s “employees”
      were treated as independent contractors.

            Roy Moll, a co-worker of the Victim and [Appellant] at the
      time, testified that the [V]ictim was often called “Pork Chop” or
      “Casey.” Mr. Moll explained that on the night before the incident,
      he was in the shop working, along with [Appellant] and Ryan
      Smith, when he heard a loud noise outside. He went outside with
      [Appellant] who proceeded to go to his truck and return with a
      handgun saying, “That’s why I carry this.” The source of the loud
      noise was never found, but Mr. Moll did hear the Victim and
      [Appellant] arguing in the shop that night about the amount of
      work [Appellant] had left to finish. Mr. Moll testified that he had
      helped [Appellant] finish his work that night before leaving.

            Matt Rosenboom testified that [Appellant] called him the
      night before the incident and told him that the other workers were
      “lazy and worthless” and would not help him finish his work. After
      the call with [Appellant] concluded, Mr. Rosenboom called
      supervisor Chris Goss [and told him] to send [Appellant] to a job
      near the West Virginia border the next day in order to keep the
      employees separated in an effort to quell the tension. The next
      day, the day of the incident in question, the decision was made by
      Mr. Rosenboom to fire [Appellant], after receiving a complaint
      from the customer at the site where [Appellant] was working. Mr.
      Rosenboom called Chris Goss and told him that [Appellant] was to
      be fired when he turned his time sheet in that day, and that he
      would be willing to fire [Appellant] over the phone if Mr. Goss did
      not want to do it in person.

            Chris Goss, supervisor [of] the Victim and [Appellant] at the
      time of the shooting, testified that on February 10, 2011, he sent


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     [Appellant] to work at a gas rig near the West Virginia border after
     speaking with Mr. Rosenboom over the phone. He told [Appellant]
     to make sure to collect his field tickets and turn in his timesheet
     that day, Thursday, as the workers were paid on Friday and Mr.
     Goss had to fly home to Mississippi the next day.

           At approximately 4:00 p.m. on Thursday, Mr. Moll went
     outside to try to start his diesel pickup truck[,] which had been
     giving him trouble due to the cold weather. While in the parking
     lot, he observed [Appellant] sitting in his truck. Mr. Moll came
     back into the shop and struck up a conversation with the Victim
     when he saw [Appellant] come in the shop and walk towards Chris
     Goss. Mr. Moll proceeded to ask [Appellant] about the “shit he
     was talking,” to which [Appellant] responded by walking within
     arms-reach of him and saying, “that’s right, I said it and I’ll say it
     again.” At this time, [Appellant] took a swing at Mr. Moll, but the
     punch did not connect. Mr. Moll responded with a punch of his
     own, which did connect with [Appellant’s] head, sending him to
     the ground. [Appellant] proceeded to grab Mr. Moll’s right leg and
     would not let go so Mr. Moll started “beating him on his head and
     trying to get him off.” Mr. Moll hit [Appellant] with both hands for
     approximately twenty (20) seconds[,] at which time [Appellant]
     let go. Mr. Moll testified that he was the only person hitting
     [Appellant].

           Mr. Goss testified that he was inside the shop welding a set
     of metal stairs that afternoon when he heard a vehicle pull up
     outside. He continued welding until he heard a commotion inside
     the shop, and upon finishing his weld and raising his welding
     shield, he saw [Appellant] and Roy Moll fighting. He walked
     towards the two men while yelling at them to stop. He witnessed
     [Appellant] on his knees slipping in some water on the floor, while
     at the same time observing Roy Moll run out the door.

           [Appellant], upon letting go of Mr. Moll’s leg, stumbled
     backward, rolled on the ground, and began to stand up while
     reaching into his pants or pocket. Mr. Moll testified that upon
     seeing this reaching motion, he ran out of a nearby door into the
     parking lot. Mr. Moll testified that he went to his truck so that he
     would have something between himself and [Appellant] if
     [Appellant] produced a firearm. While in his truck, he heard a
     loud “pop” sound inside the shop, which he recognized as a
     gunshot, and called 911. Chris Goss exited the shop within
     seconds of the gunshot sound and exclaimed, “Call 911, he just
     shot Pork Chop!” to which Mr. Moll replied, “I’m calling!”

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            The Victim was taken by ambulance to Canonsburg Hospital
      due to the immediate need for care, while [Appellant] was taken
      by medical helicopter to Allegheny General Hospital (AGH) in
      Pittsburgh. Officer Christopher Wilson of the North Strabane
      Township Police Department accompanied [Appellant] on this
      helicopter trip. At the hospital, Officer Wilson requested that
      [Appellant’s] hands not be washed to preserve any gunshot
      residue (GSR) and that his clothing be seized. While at the
      hospital, [Appellant] told Officer Wilson that the whole incident
      was over his boss, Matt Rosenboom, not paying him for trips and
      [Appellant] wanting to quit. The Victim later died of his gunshot
      wound at the hospital.

PCRA Court Opinion (PCO), 7/9/18, at 1-5 (footnotes and citations to the

record omitted). At trial, Appellant testified that he shot the Victim in self-

defense.

      Based on this evidence, the jury acquitted Appellant of the homicide and

simple assault charges, but convicted him of voluntary manslaughter

(unreasonable belief) and the two counts of aggravated assault. On November

28, 2012, the court sentenced Appellant to an aggregate term of 7 to 20 years’

incarceration.   This Court affirmed Appellant’s judgment of sentence on

November 7, 2014.     See Commonwealth v. Kirtley, 113 A.3d 344 (Pa.

Super. 2014) (unpublished memorandum).         He did not file a petition for

allowance of appeal with our Supreme Court.

      On April 6, 2015, Appellant filed a timely PCRA petition and the court

appointed counsel to represent him. After a change in counsel and several

requests for extensions of time, counsel filed an amended petition on March

20, 2017. The Commonwealth subsequently filed an answer to the petition.

On October 2, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of its



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intent to dismiss Appellant’s petition without a hearing, to which Appellant

filed a timely response. However, on December 19, 2017, the court issued an

order dismissing Appellant’s petition.

        Appellant filed a timely notice of appeal, and he also timely complied

with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.          Herein, he presents three claims for our

review:

        1. Whether prior counsel was ineffective for failing to present
           testimony during a suppression hearing to show Appellant did
           not knowingly and intelligently waive his Miranda[1] rights?

        2. Whether prior counsel was ineffective by not objecting to the
           Commonwealth’s implication that [A]ppellant used his right to
           discovery to present false testimony and/or by not advancing
           the argument on appeal?

        3. Whether prior counsel at trial was ineffective by not objecting
           to the Commonwealth’s attempt to convince the jury that
           [A]ppellant should have fired or was required to fire a warning
           shot or otherwise provide [the Victim] with some advance
           notice that he was going to shoot?

Appellant’s Brief at 6.

        Initially, we note that “[t]his Court’s standard of review from the grant

or denial of post-conviction relief is limited to examining whether the lower

court’s determination is supported by the evidence of record and whether it is

free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.

1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.

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1   Miranda v. Arizona, 86 S.Ct. 1602 (1966).



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1995)).   Where, as here, a petitioner claims that he received ineffective

assistance of counsel, our Supreme Court has directed that the following

standards apply:

     [A] PCRA petitioner will be granted relief only when he proves, by
     a preponderance of the evidence, that his conviction or sentence
     resulted from the “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii).
     “Counsel is presumed effective, and to rebut that presumption,
     the PCRA petitioner must demonstrate that counsel’s performance
     was deficient and that such deficiency prejudiced him.”
     [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
     886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct.
     2053 (1984)]). In Pennsylvania, we have refined the Strickland
     performance and prejudice test into a three-part inquiry. See
     [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
     1987)]. Thus, to prove counsel ineffective, the petitioner must
     show that: (1) his underlying claim is of arguable merit; (2)
     counsel had no reasonable basis for his action or inaction; and (3)
     the petitioner suffered actual prejudice as a result.
     Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
     “If a petitioner fails to prove any of these prongs, his claim fails.”
     Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
     260 (2013) (citation omitted). Generally, counsel’s assistance is
     deemed constitutionally effective if he chose a particular course of
     conduct that had some reasonable basis designed to effectuate his
     client’s interests. See Ali, supra. Where matters of strategy and
     tactics are concerned, “[a] finding that a chosen strategy lacked
     a reasonable basis is not warranted unless it can be concluded
     that an alternative not chosen offered a potential for success
     substantially greater than the course actually pursued.” Colavita,
     606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
     omitted). To demonstrate prejudice, the petitioner must show
     that “there is a reasonable probability that, but for counsel’s
     unprofessional errors, the result of the proceedings would have
     been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
     607, 613 (2012) (quotation, quotation marks, and citation
     omitted). “‘[A] reasonable probability is a probability that is
     sufficient to undermine confidence in the outcome of the


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      proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting
      Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
      (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      In this case, Appellant first contends that his trial counsel acted

ineffectively by not calling an expert to the stand at the hearing on Appellant’s

pretrial motion to suppress a statement he made to police officers at the

hospital. More specifically, Appellant argues that expert testimony would have

demonstrated that he did not knowingly, voluntarily, and intelligently waive

his Miranda rights prior to making that statement.        Instead of calling an

expert witness, trial counsel “did not present any evidence at the hearing of

the suppression motion.”     Appellant’s Brief at 23.   In regard to prejudice,

Appellant cursorily claims that, “[h]ad [counsel] presented the evidence by

the expert witnesses[,] Appellant would not have been found guilty.” Id.

      In rejecting this claim, the PCRA court reasoned, inter alia, that

Appellant had made no “attempt to identify an expert witness who would

[have] offer[ed] testimony on behalf of [Appellant].” PCO at 13. We agree

that Appellant’s omission in this regard defeats his ineffectiveness claim. Our

Supreme Court has “noted the well-settled rule that, in addition to the

ineffectiveness test, when a defendant claims that expert testimony should

have been introduced at trial, the defendant must articulate what evidence

was available and identify the witness who was willing to offer such

evidence.”    Commonwealth v. Bryant, 855 A.2d 726, 745 (Pa. 2004)

(cleaned up; emphasis added). Here, Appellant fails to identify any expert

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witness that trial counsel could have called at the suppression hearing. He

also does not explain what testimony an expert would have given to

demonstrate that his Miranda waiver was involuntary, unknowing, or

unintelligent.

      Next, Appellant argues that his trial counsel acted ineffectively by not

appropriately objecting to the following portion of the Commonwealth’s cross-

examination of Appellant at trial:

      [The Commonwealth:] [Appellant], you are here today after
      hearing over 20 witnesses testify, and now you’re telling us what
      happened; isn’t that true?

      [Appellant:] That’s correct.

      [The Commonwealth:] And you had all these months to review
      the investigative materials as well; isn’t that true?

      [Appellant:] That’s correct.

      [The Commonwealth:] You thought about those investigative
      materials; isn’t that true?

      [Defense Counsel:] Objection.

      ***

      [The Court:] What’s wrong with the question?

      [Defense Counsel:] What he is asking him, he has had months to
      look at the investigative reports. I don’t know how that’s relevant.

      [The Commonwealth:] Because he can create a story and spin his
      yarn from what he’s heard in this courtroom and all the months
      that he’s had to review the investigative reports.

      [Defense Counsel:] I made my objection.

      [The Court:] Denied. … [Appellant], would you return to the
      witness chair?




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       [The Commonwealth:] You have had months to review those
       reports and think about it; haven’t you?

       [Appellant:] I have thought about this every day for [the] 19
       months that I’ve sat in jail.

       [The Commonwealth:] And now, today, you say something that
       you never said in all those opportunities with the police and with
       the physicians, now you say it?

N.T. Trial, 9/17/12, at 763-64.2

       In support of his argument that this cross-examination was improper,

Appellant relies on Commonwealth v. Bricker, 487 A.2d 346 (Pa. 1985).

There, the prosecutor argued in closing that the defendant had received

“complete discovery” early on in the case and had used that information to

concoct a “fabricated story” to refute the charges against him. Id. at 354.

Our Supreme Court found that “these remarks violate[d] the rules … that a

prosecutor must limit statements to facts in evidence and reasonable

inferences therefrom and must not express personal opinions on guilt,

credibility, or strategy.” Id.

       In this case, Appellant offers no developed discussion of how Bricker is

similar to the present matter. Instead, aside from repeating the above-quoted

portion of Bricker, Appellant’s entire argument is as follows:

       By allowing the line of questioning[,] Appellant[’]s credibility as to
       what happened at the time of the shooting was inferred by the
       prosecution to be a lie and fabricated from the viewing of the
       investigative file. The proper objection was never launched by
____________________________________________


2There are two transcripts in the certified record for September 17, 2012, one
of which has pages numbered 728 through 832, and the other pages 1271-
1327. We will utilize the transcript referred to in Appellant’s brief (numbered
728 through 832).

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      [trial counsel] and therefore established prejudice for [] Appellant
      which was evidence in the jury’s verdict. The result of the trial
      would have been different had the proper objection been asserted
      and Appellant would not have been found guilty.

Appellant’s Brief at 26.

      Appellant has failed to establish that his case is akin to Bricker. The

at-issue remarks by the Commonwealth in this case were questions posed to

Appellant on cross-examination, not closing arguments that were unsupported

by “facts in evidence,” as in Bricker. Bricker, 487 A.2d at 354. Moreover,

in Bricker, the prosecutor outright argued that the defendant had utilized his

right to discovery to fabricate his defense to the charges, thus expressing a

personal opinion that Bricker was incredible.         By contrast, here, the

Commonwealth utilized cross-examination questioning to raise an inference

that Appellant had fabricated his story after spending months thinking about

the case, reviewing the investigative files, and listening to the evidence

presented against him at trial. Therefore, the prosecutor did not express a

personal opinion regarding Appellant’s credibility, nor present an argument

that was not supported by facts in evidence. Accordingly, Appellant’s cursory

argument has not established error in the PCRA court’s conclusion that “[a]

clear distinction can be drawn between the remarks made by the prosecutor

in Bricker and the cross[-]examination pursued by the Commonwealth in this

case.” PCO at 16.

      Additionally, in finding that Appellant failed to meet the prejudice prong

of the ineffectiveness test, the PCRA court reasoned that,



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      even if the questions at issue could be considered inappropriate,
      these statements were not of such gravity to unduly inflame the
      passions of the jury. The line of questioning at issue was
      innocuous in light of all of the other evidence of [Appellant’s] guilt.
      Thus, the [PCRA] court submits that, even if the line of questioning
      at issue could be considered prosecutorial misconduct, it was
      harmless, and the exclusion of such statements from the record
      would not have altered the outcome of the proceeding. Due to
      [a] lack of prejudice, the third prong of the Pierce test is not met
      and the claim fails.

Id. at 18. Again, Appellant offers no challenge to the PCRA court’s rationale,

nor any meaningful counter-argument that he was prejudiced by the

admission of the at-issue portion of the Commonwealth’s cross-examination.

Instead, his entire prejudice argument is the following: “The result of the trial

would have been different had the proper objection been asserted and

Appellant would not have been found guilty.” Appellant’s Brief at 26. This

single sentence is insufficient to establish prejudice.

      In Appellant’s third and final ineffectiveness claim, he argues that his

counsel erred by not objecting to the following portion of the Commonwealth’s

cross-examination of him:

      [The Commonwealth:] Did you fire a warning shot?

      [Appellant:] No, I did not.

      [The Commonwealth:] Did you say stop or I’ll shoot?

      [Appellant:] I couldn’t say anything with both of them hitting and
      kicking me.

N.T. Trial, 9/17/12, at 772. Appellant also avers that counsel should have

objected during closing arguments, when the Commonwealth stated: “By

[Appellant’s] own admission today, when he was talking about that shot, it



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was only one. No warning shot, no warning at all….” N.T. Trial, 9/17/12, at

22.    Appellant   insists   that   these   questions   and   argument    by   the

Commonwealth should have been objected to by trial counsel because they

improperly suggested to the jury “that a warning shot [is] required when

someone act[s] in self[-] defense before [they may] apply[] force to preserve

their own life.” Appellant’s Brief at 28.

      In finding this ineffectiveness claim meritless, the PCRA court reasoned:

             [Appellant] argues that the aforementioned [testimony and
      argument by the Commonwealth] placed an additional burden on
      [Appellant] in proving self-defense. While there is no question
      that self-defense does not require a showing that [Appellant] fired
      a warning shot or gave advanced notice, the [PCRA] court
      disagrees that the line of questioning and closing remarks at issue
      were tantamount to argument by the Commonwealth that such
      warnings were legally required. [Appellant] was claiming self-
      defense. It is appropriate for the Commonwealth to question
      [Appellant] regarding his actions prior to the shooting, the level
      of threat perceived by [Appellant], and the necessity of deadly
      force:

         By way of background, a claim of self-defense (or
         justification, to use the term employed in the Crimes Code)
         requires evidence establishing three elements: “(a) [that
         the defendant] reasonably believed that he was in imminent
         danger of death or serious bodily injury and that it was
         necessary to use deadly force against the victim to prevent
         such harm; (b) that the defendant was free from fault in
         provoking the difficulty which culminated in the slaying; and
         (c) that the [defendant] did not violate any duty to retreat.”

      Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012).

      The Commonwealth sustains that burden of negation “if it proves
      any, of the following: that the slayer was not free from fault in
      provoking or continuing the difficulty which resulted in the slaying;
      that the slayer did not reasonably believe that [he] was in
      imminent danger of death or great bodily harm, and that it was
      necessary to kill in order to save [him]self therefrom; or that the

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     slayer violated a duty to retreat or avoid the danger.”
     Commonwealth v. Burns, 416 A.2d 506, 507 ([Pa.] 1980).

            As indicated above, the Commonwealth has the burden of
     disproving self-defense. The line of questioning initiated by the
     Commonwealth was reasonable to establish [Appellant’s] state of
     mind at the time of the shooting. Furthermore, [Appellant] fails
     to offer any case law in support of his argument.

           In addition, if the questions and remarks by the
     Commonwealth did seem to imply some form of additional
     requirement for self-defense, any such implication would be
     refuted by the jury instructions. The trial court issued the
     following lengthy jury instruction:

       THE COURT: And now, ladies and gentlemen, I’ll give you
       the charge regarding justification, that is, use of deadly
       force in self-defense.

          In general, [Appellant] has raised the issue of whether
       he acted in self-defense when he shot and killed Trevor
       Compton. Self-defense is called justification in the law of
       Pennsylvania. If [Appellant’s] actions were justified, you
       cannot find him guilty beyond a reasonable doubt. The issue
       having been raised, it is the Commonwealth’s burden to
       prove beyond a reasonable doubt that [Appellant] did not
       act in justifiable self-defense.

           When the issue is raised as to use of deadly force, the
       first matter that you must consider in deciding whether the
       Commonwealth has met its burden in this regard is what
       kind of force [Appellant] used in this instance. There are
       two kinds, deadly and non-deadly. The Commonwealth
       claims here that deadly force was used by [Appellant] and
       it must prove that claim beyond a reasonable doubt.

                                   ***

       Now, these are the rules for justification when deadly force
       was used. If the Commonwealth proves to you beyond a
       reasonable doubt that [Appellant] used deadly force, then
       to prove that such force was not justifiable in this case, it
       must prove all the following elements beyond a reasonable
       doubt:




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       First, that [Appellant] did not reasonably believe that he was
       in immediate danger of death or serious bodily injury from
       Trevor Compton at the time he used the force and that,
       therefore, his belief that it was necessary for him to use
       deadly force to protect himself was unreasonable.

       Put another way, the Commonwealth must prove either:

       That [Appellant] did not actually believe he was in danger
       of death or serious bodily injury such that he needed to use
       deadly force to defend himself at that moment; or [t]hat
       while [Appellant] actually believed he needed to use such
       force, his belief was unreasonable in light of all the
       circumstances known to him.

          Keep in mind, a person is justified in using deadly force
       against another not only when they are in actual danger of
       unlawful attack but also when they mistakenly, but
       reasonably, believe that they are.

          A person is entitled to estimate the necessity for the force
       he employs under the circumstances as he reasonably
       believes them to be at the time. In the heat of conflict, a
       person who has been attacked ordinarily has neither time
       nor composure to evaluate carefully the danger and make
       nice judgments about how much force is needed to protect
       himself. Consider the realities of the situation faced by
       [Appellant] here when you assess whether the
       Commonwealth proved beyond a reasonable doubt that
       either he did not believe he was actually in danger of death
       or serious bodily injury to the extent that he needed to use
       such force in self-defense or that, while he did believe that,
       his belief was unreasonable; or that, in the same encounter
       with Trevor Compton, [Appellant] engaged in conduct that
       demonstrated his intent to cause death or serious bodily
       injury, and by that conduct, he provoked the use of force
       against him.

           The conduct by [Appellant] must be of such a nature that
       it shows it was his conscious object to cause death or serious
       bodily injury to Trevor Compton. Conduct that is not of such
       a nature does not constitute the kind of provocation upon
       which [the] Commonwealth may rely to prove its case.

          If you find beyond a reasonable doubt that [Appellant’s]
       acts were of such a nature, you must then ask whether it

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          provoked the similar use of force against him. In this
          assessment, the conduct by [Appellant] may be the initial
          provocation of the fight, or it may be an act that continues
          or escalates it.

              However, even if [Appellant] was the initial aggressor or
          was the person who escalated the incident to one involving
          the use of deadly force, if he thereafter withdraws in good
          faith, making it clear that his further intentions are
          peaceable, and the alleged victim pursues him and renews
          the fight, he does not forfeit his right to claim justifiable self-
          defense.

          If, on the other hand, you find beyond a reasonable doubt
          that [Appellant] provoked the use of force against him by
          engaging in conduct that showed that he intended to cause
          death or serious bodily injury to the alleged victim, you may
          find that his conduct was not justified, or that [Appellant]
          knew that he could avoid the use of deadly force with
          complete safety by retreating but that he failed to do so.

             If an encounter takes place in [Appellant’s] place of work,
          he has no duty to retreat unless he was the initial aggressor
          or he was attacked by another person who [Appellant]
          knows to also work there.

              If the Commonwealth proves one of these elements
          beyond a reasonable doubt, the actions of [Appellant] in
          using deadly force are not justified. If the Commonwealth
          fails to prove one of these elements beyond a reasonable
          doubt, [Appellant’s] action was justified, and you must find
          him not guilty of the crime of [m]urder of the [third]
          [d]egree.[3]

       This lengthy jury instruction set forth all the necessary elements
       of self-defense, thereby curing any possible prejudice to
       [Appellant].   Thus, the [PCRA] court finds that the line of
       questioning pursued by the Commonwealth was fair for cross-
       examination. The lack of merit to this claim causes [Appellant’s]
       ineffectiveness claim to fail under the first prong of the Pierce
       test.

____________________________________________


3The Commonwealth apparently classified Appellant’s homicide charge as
murder of the third degree.

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PCO at 19-22 (footnotes omitted).

      As with his other issues, Appellant fails to offer any meaningful counter-

argument to the PCRA court’s reasons for concluding that his ineffectiveness

claim is meritless. Especially troubling is Appellant’s failure to address the

court’s determination that he suffered no prejudice given the lengthy

instruction on self-defense, in which the court informed the jury of the

elements of that defense, and that it was the Commonwealth’s burden to

disprove it. Instead of acknowledging this instruction, Appellant again offers

a single sentence stating simply, without any elaboration, that he “would not

have been found guilty” had counsel objected to the at-issue questions and

argument by the Commonwealth. Appellant’s Brief at 28. Given the record

before us and Appellant’s cursory arguments herein, we discern no error in

the PCRA court’s conclusion that he failed to prove the arguable merit and/or

prejudice prongs of the ineffectiveness test.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2019




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