J-S07022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JELANI Q. GHEE

                            Appellant                 No. 1064 MDA 2015


                 Appeal from the Order Entered May 19, 2015
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000066-2013


BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                            FILED FEBRUARY 19, 2016

        Jelani Q. Ghee brings this appeal from the order entered May 19,

2015, in the Court of Common Pleas of Franklin County, that denied, after

an evidentiary hearing, his petition for relief filed pursuant to the

Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.

Ghee claims trial counsel was ineffective in failing to cross-examine the

victim regarding his pending criminal charge. See Ghee’s Brief at 5. Based

upon the following, we affirm.

        The facts and procedural history of this matter are thoroughly

recounted in this Court’s decision addressing Ghee’s direct appeal, and the

PCRA court’s opinion, and therefore we do not restate the background of this

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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case. See Commonwealth v. Ghee, 106 A.3d 162 [326 MDA 2014] (Pa.

Super. August 15, 2014) (unpublished memorandum); PCRA Court Opinion,

5/19/2015, at 1–2.         We simply note that on August 15, 2013, a jury

convicted Ghee and his co-defendant, Jemoni L. Ghee, of aggravated

assault,1 arising from a November 7, 2012 attack upon the victim, Clarence

Green.

        Ghee raises the following issue in this appeal:

        Whether the [PCRA] court erred in finding that [Ghee] was not
        prejudiced by trial counsel’s failure to cross-examine the victim
        regarding his pending criminal charge, thus denying [Ghee’s]
        request and dismissing his PCRA action when:

        a. Aside from [Ghee] and his co-defendant, the victim was
           the only eye witness to the actual incident; and

        b. Despite the Commonwealth presenting other witnesses
           and evidence, the evidence that supported the elements
           required for a conviction of aggravated assault, as
           opposed to simple assault, stemmed from the victim’s
           testimony.

Ghee’s Brief at 5–6.

        The principles that guide our review are well settled:

        This Court’s standard of review regarding an order denying a
        petition under the PCRA is whether the determination of the
        PCRA court is supported by the evidence of record and is free of
        legal error. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
        795, 799 n.2 (2005). The PCRA court’s findings will not be
        disturbed unless there is no support for the findings in the


____________________________________________


1
    18 Pa.C.S. § 2702(a)(1).



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        certified record. Commonwealth v. Carr, 2001 PA Super 54,
        768 A.2d 1164, 1166 (Pa. Super. 2001).

                                           ****

        In reviewing a claim of ineffective assistance of counsel, we
        adhere to the following principles:

           In order for Appellant to prevail on a claim of ineffective
           assistance of counsel, he must show, by a preponderance
           of the evidence, ineffective 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. Commonwealth v. Kimball, 555 Pa. 299,
           724 A.2d 326, 333 (1999). Appellant must demonstrate:
           (1) the underlying claim is of arguable merit; (2) that
           counsel had no reasonable strategic basis for his or her
           action or inaction; and (3) but for the errors and
           omissions of counsel, there is a reasonable probability
           that the outcome of the proceedings would have been
           different. Id. The petitioner bears the burden of proving
           all three prongs of the test. Commonwealth v.
           Meadows, 567 Pa. 344, 787 A.2d 312, 319-20 (2001).

        Commonwealth v. Johnson, 2005 PA Super 59, 868 A.2d
        1278, 1281 (Pa. Super. 2005),     appeal denied, 583 Pa. 680,
        877 A.2d 460 (Pa. 2005). Moreover, “[t]rial counsel is presumed
        to have been effective[.]” Commonwealth v. Basemore, 560
        Pa. 258, 744 A.2d 717, 728 n.10 (Pa. 2000).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa Super. 2007).

        Ghee claims that his trial counsel, Todd Sponseller, Esquire, was

ineffective for failing to cross examine the victim regarding his pending

criminal charge in Franklin County.2           In this regard, Ghee relies on two

____________________________________________


2
    Ghee’s Amended PCRA petition alleged, in relevant part:

(Footnote Continued Next Page)


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cases:       Commonwealth v. Murphy, 591 A.2d 278 (Pa. 1991), and

Commonwealth v. Davis, 652 A.2d 885 (Pa. Super. 1995).3

      At the PCRA hearing, Ghee testified he had informed Sponseller that

the victim had a pending criminal matter, and asked Sponseller to cross

examine the victim on his pending criminal charge to elicit possible bias for

hopes of leniency.          N.T., 3/19/2015, at 5.   He further testified that

Sponseller did not cross examine the victim as to any pending charges. Id.



                       _______________________
(Footnote Continued)

         a. The prosecution’s witness, the alleged victim, Mr. Green,
            had been charged with resisting arrest and his criminal
            case was pending prior to the incident giving rise to the
            above-captioned matter.

         b. At the time of trial in the above-captioned matter, Mr.
            Green was awaiting sentencing.

         c. [Ghee’s] counsel was made aware of Mr. Green’s pending
            criminal case well in advance of trial; in fact, [Ghee]
            discussed with his trial counsel the fact that Mr. Green
            had a case pending.

         d. Trial counsel did not cross-examine Mr. Green regarding
            his pending criminal case.

         e. Trial counsel did not attempt to demonstrate any
            potential bias of Mr. Green through cross-examination, or
            otherwise.

Ghee’s Amended PCRA Petition, 1/9/2015, at ¶16.
3
 We note that in Murphy and Davis the issue of ineffectiveness of counsel
was raised on direct appeal.




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at 6. The PCRA court took judicial notice of the victim’s trial court docket, 4

and the trial testimony of the victim.           Id. at 6–7.   According to Ghee,

Sponseller did not ask the victim about his pending criminal charge because

he did not want to be too hard on the victim in front of the jury. Id. at 8.

Ghee, however, did not call Sponseller as a witness at the PCRA hearing.

The PCRA court denied relief, concluding Ghee had failed to satisfy the

prejudice prong of the ineffectiveness test. Id. at 6. This appeal followed.5

        Ghee argues the PCRA court erred in determining he was not

prejudiced by trial counsel’s failure to cross-examine the victim regarding

the victim’s pending charge. The Commonwealth, for its part, argues that

Ghee’s claim fails for two reasons: one, because Ghee did not offer trial

counsel’s testimony at the PCRA hearing to establish the second prong of the

ineffectiveness test, i.e., that trial counsel did not have a reasonable basis



____________________________________________


4
    The Commonwealth, in its brief, states:

        At the time of [Ghee’s] trial the victim was awaiting sentencing
        having entered a guilty plea on February 18, 2013, to M2
        Resisting Arrest with a plead to sentence of six months of
        intermediate punishment with the first 30 days on electronic
        monitoring; sentencing to be deferred until after April 30, 2013.

Commonwealth’s Brief at 3–4.
5
  Ghee timely complied with the order of the PCRA court to file a statement
of errors complained of on appeal, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b).



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for his actions; and two, because Ghee failed to prove the third prong of the

ineffectiveness test, i.e., prejudice.

      The PCRA court, in denying Ghee’s request for PCRA relief, opined:

            In his Amended PCRA Petition, [Ghee] alleges that
      Attorney Sponseller was ineffective for failing to cross-examine
      Clarence Green regarding his pending criminal charges in
      Franklin County. Amended PCRA [Petition] ¶ 12. [Ghee] testified
      that he had informed Attorney Sponseller that the victim had
      pending criminal charges. According to [Ghee], Attorney
      Sponseller did not ask the victim about his pending criminal
      charges because he did not want to be too hard on the victim in
      front of the jury.5

            In support of his argument that Attorney Sponseller was
      ineffective for failing to cross-examine the victim, [Ghee] cites to
      Commonwealth v. Murphy, 591 A.2d 278 (Pa. Super. 1991)
      and Commonwealth v. Davis, 652 A.2d 885 (Pa. Super.
      1995). In both those cases, the Superior Court made it clear that
      the contention that counsel was ineffective for failing to question
      a witness regarding possible bias as the result of pending
      criminal charges has merit and that there is no reasonable basis
      or strategy for counsel’s failure.6 The Superior Court also
      concluded that in both those cases, the defendants were
      prejudiced by counsel’s failure to cross-examine a witness
      regarding his pending criminal charges or juvenile probationary
      status.
      ____________________________________________
          5
            The record is clear that neither Attorney Sponseller, nor
          Jemoni’s attorney questioned the victim regarding his
          pending criminal charges. Instead both attorneys spent
          the majority of their cross-examination impeaching the
          victim with prior inconsistent statements.
          6
           The Commonwealth asserts that [Ghee’s] claim for relief
          on the basis of ineffective assistance of counsel should be
          denied as Attorney Sponseller was not called as a witness
          at the evidentiary hearing. Brief in Opposition pp. 2-3.
          However, in light of Murphy and Davis, Attorney
          Sponseller’s testimony regarding his trial strategy was


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        not necessary for [Ghee] to satisfy the second prong of
        [the ineffectiveness test].
     _____________________________________

            However, Murphy and Davis are distinguishable from
     [Ghee’s] case. In Murphy, the defendant was charged in
     connection with the shooting death of Steven Brown, when two
     children who were interviewed a short time after the shooting
     and gave vague descriptions of the gunman, were re-
     interviewed four years later and identified the defendant as the
     shooter. At the time the two children testified at trial one of
     them was on juvenile probation and the other had just
     completed juvenile probation. 591 A.2d at 278. The child on
     juvenile probation was the only eyewitness to the crime and her
     testimony was crucial to the case. Id. at 280. Defense counsel
     never cross-examined her regarding her juvenile probationary
     status in an attempt to show bias, whether based on a formal
     agreement or her subjective belief that she would receive
     favorable treatment. Id. The jury ultimately found the defendant
     guilty of first degree murder and he was sentenced to death. Id.
     at 278.

           In Davis, the jury convicted the defendant of attempted
     rape after hearing both his and the victim’s version of events on
     the day in question. 652 A.2d 885. There were no other
     witnesses who corroborated the victim’s testimony. Id. On
     appeal the Superior Court held that counsel’s error in not cross
     examining the victim regarding her pending criminal history in
     order to suggest that the victim was biased was not harmless
     error. Id.

           In [Ghee’s] case, in addition to the victim’s testimony, the
     jury heard testimony from at least ten other witnesses and
     viewed nearly eighty exhibits. The jury saw surveillance footage
     from Hollywood Casino, placing [Ghee], Jemoni, and the victim
     together on the night of the assault. Comm. Ex. 68. There was
     testimony regarding the evidence found at the crime scene. N.T.
     8/12/13 p. 33; N.T. 8/14/13 p. 129. The jury viewed
     photographs of the area where the victim was found by a
     passing motorist which depicted blood and clothing strewn
     about. Comm. Exs. 62-67, 69-72. The jury heard expert
     testimony from the trauma physician who treated the victim at
     York Hospital that the victim suffered from abrasions,
     lacerations, a fractured nasal bone, a fractured hyoid bone,

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      fractured ribs, and a severe liver injury. N.T. 8/13/13 p. 90.
      According to the trauma physician, the liver injury was caused
      by blunt force trauma (exact mechanism unknown) and the
      hyoid bone fracture was the result of being strangled or struck.
      N.T. 8/13/13 pp. 94-95. The jury viewed photos of the victim's
      injuries. Comm. Exs. 1-5, 54-57. Additionally, trash bags
      containing [Ghee] and Jemoni’s clothing worn on the day of the
      assault were found in the dumpster near their townhome. N.T.
      8/13/13 pp. 125, 162; N.T. 8/15/13 pp. 38-39. There was
      expert testimony that the victim’s blood was identified on
      [Ghee’s] sweatshirt. N.T. 8/14/13 p. 123. Further, the police
      officer that executed the search warrant on [Ghee’s] person
      testified that [Ghee] had injuries consistent with being involved
      in an assault. N.T. 8/14/13 pp. 53-56. Most striking, [Ghee] took
      the stand and acknowledging that he had fought with the victim
      on the night of November 7, 2012 (albeit he asserts that the
      victim was the initial aggressor). N.T. 8/15/13 pp. 32-36.

            The Court finds that [Ghee] was not prejudiced by
      Attorney Sponseller’s failure to cross-examine the victim
      regarding his pending criminal charge as evidence from
      numerous     sources,    including [Ghee’s]   own    testimony,
      corroborated the victim’s testimony. See Commonwealth v.
      Gentile, 640 A.2d 1309, 1314 (Pa. Super. 1994). Considering
      the overwhelming evidence against [Ghee] and Jemoni,
      independent of the victim’s testimony at trial, [Ghee] has not
      demonstrated that, but for Attorney Sponseller’s failure, the
      result of the proceedings would have been different. Therefore,
      [Ghee] is not entitled to relief on the basis that Attorney
      Sponseller was ineffective.

PCRA Court Opinion, 5/19/2015, at 4–6.

      Based on our review, we conclude the PCRA court properly determined

that Ghee failed to satisfy the third prong (prejudice) of the ineffectiveness

test. In this respect, we adopt the opinion of the PCRA court.

      We note, moreover, that we are persuaded by the Commonwealth’s

position that because Ghee did not present trial counsel at the hearing, he

failed to establish the second prong of the ineffectiveness test. As such, our

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reasoning departs from the rationale of the PCRA court, which found that “in

light of Murphy and Davis, Attorney Sponseller’s testimony regarding his

trial strategy was not necessary for [Ghee] to satisfy the second prong of

[the ineffectiveness test].” PCRA Court Opinion, 5/19/2015, at 4 n.6.

      In Murphy, trial counsel discussed the scope of allowable cross

examination with the court at a recorded in-chambers conference, during

which he revealed his own ignorance regarding his ability to impeach the

witnesses.    On appeal to the Pennsylvania Supreme Court, the Court

reasoned:

      Defense counsel erroneously sought to impeach the testimony of
      the juvenile witnesses on impermissible grounds [crimen falsi]
      while at the same time, due to ignorance, failed to impeach their
      credibility on legitimate grounds – to show bias of the witnesses
      based upon his or her juvenile probationary status. …

      We can perceive of no reasonable basis for counsel’s failure to
      cross-examine [the female witness] on the basis of her then
      existing probationary status.

Murphy, 591 A.2d at 280. Therefore, it was clear from the trial record in

that counsel’s failure to cross examine the witnesses was due to his

misconception of the law and, as such, there could be no reasonable basis

for his actions.

      In Davis, where the appellant asserted trial counsel was ineffective in

failing to impeach the credibility of the victim with evidence of her pending

criminal charges, this Court opined:

      Although the existing record does not enlighten us as to trial
      counsel’s reasons for his conduct, it is highly improbable that

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      trial counsel would intentionally forgo an attempt to demonstrate
      the victim’s possible bias as a matter of trial strategy, since the
      proposed impeachment could only have helped rather than hurt
      appellant’s defense.

Davis, 652 A.2d at 889.         This Court stated, “The second prong of the

ineffectiveness test has thus been met,” but went on to state:

      As we are remanding this case for further proceedings, trial
      counsel nonetheless should be given the opportunity to explain
      why he chose not to cross-examine the witness with regard to
      her pending criminal charges.

Id. at 889 and n.4.     Additionally, this Court clarified that on remand the

evidentiary hearing should address, inter alia, “whether trial counsel had any

reasonable basis for failing to cross-examine the victim with respect to her

convictions.” Id. at 890 n.5.

      Here, in contrast to Murphy, the trial record does not disclose trial

counsel’s reasoning regarding cross examination of the victim. Furthermore,

the Davis Court recognized the need for an evidentiary hearing to determine

the basis for trial counsel’s actions. Therefore, contrary to the PCRA court’s

analysis, we do not regard Murphy or Davis to stand for the proposition

that trial counsel’s failure to cross examine a witness regarding pending

charges to show bias, as in this case, is per se proof of the second prong of

the ineffectiveness test.

      Our conclusion is reinforced by the recent decision in Commonwealth

v. Reyes-Rodriguez, 111 A.3d 775 (Pa. Super. 2015), appeal denied, 123

A.3d 331 (Pa. 2015), wherein this Court instructed:


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      [A] lawyer should not be held ineffective without first having an
      opportunity to address the accusation in some fashion. In fact,
      our Supreme Court has cautioned against finding no reasonable
      basis for trial counsel’s actions in the absence of supporting
      evidence. The fact that an appellate court, reviewing a cold trial
      record, cannot prognosticate a reasonable basis for a particular
      failure to raise a plausible objection does not necessarily prove
      that an objectively reasonable basis was lacking.

Id. at 783 (quotations, citations and footnote omitted). Accordingly, we find

that because Ghee did not call trial counsel as a witness at the PCRA

hearing, he failed to establish that trial counsel lacked a reasonable basis for

his actions.

      Based on the foregoing, we conclude that Ghee failed to satisfy both

the second and third prongs of the ineffectiveness test.       Accordingly, we

affirm the PCRA court’s denial of relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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