J-S48038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                       :    IN THE SUPERIOR COURT OF
    PENNSYLVANIA                          :         PENNSYLVANIA
                                          :
                      Appellee            :
                                          :
                 v.                       :
                                          :
    LADALE PACE                           :
                                          :
                      Appellant           :   No. 754 EDA 2019

               Appeal from the PCRA Order Entered March 7, 2019
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005467-2013

BEFORE:      BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED OCTOBER 21, 2019

        Ladale Pace (Appellant) appeals from the order entered March 7, 2019,

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546, without an evidentiary hearing. We affirm.

        In September 2012, Appellant was charged with, inter alia, second-

degree murder, conspiracy to commit murder, robbery, conspiracy to commit

robbery, burglary, conspiracy to commit burglary, carrying a firearm without

a license, and carrying a firearm in public in Philadelphia.    These charges

stemmed from Appellant’s participation in a robbery and burglary, which

resulted in the death of Julio Cesar Hernandez.

        In July 2014, over the course of several days, Appellant and his co-

conspirator, Laquam Smith, were tried jointly before a jury. On July 17, 2014,

Appellant was convicted of the aforementioned crimes.          That same day,


*   Retired Senior Judge assigned to the Superior Court.
J-S48038-19


Appellant was “sentenced to mandatory life imprisonment on the charge of

murder, with no further penalty assessed for the remaining charges.” PCRA

Court Opinion, 4/29/2019, at 3. This Court affirmed Appellant’s judgment of

sentence on May 10, 2016. Commonwealth v. Pace, 151 A.3d 1141 (Pa.

Super. 2016) (unpublished memorandum). Appellant did not seek review by

our Supreme Court.

        On June 7, 2016, Appellant pro se timely filed a PCRA petition. Counsel

was appointed, and an amended petition was filed on May 9, 2018.              On

February 7, 2019, the PCRA court issued a notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant

did not file a response, and on March 7, 2019, the PCRA court dismissed

Appellant’s petition. Appellant timely filed a notice of appeal.1

        On appeal, Appellant raises the following claims for our review.

     1. Did the PCRA court err in dismissing Appellant’s PCRA [p]etition
        without a hearing because direct appeal counsel was ineffective
        for not arguing that a mistrial should have been granted because
        evidence of Appellant’s prior criminality was elicited at trial
        thereby prejudicing Appellant?[2]

____________________________________________


1   Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

2 At trial, Officer Gregory Yatcilla, a member of the crime scene unit, testified
regarding the physical evidence collected from the scene of the crime.
Specifically, Officer Yatcilla testified that there were “fingerprints from the
crime scene [that] were matched to ‘different individuals who actually all had
criminal numbers or prison numbers.’” PCRA Court Opinion, 4/29/2019, at 7,
quoting N.T., 7/9/2014, at 68-71.           “Evidence subsequently introduced
established that the identifiable fingerprints” belonged to, inter alia, Smith and



                                           -2-
J-S48038-19



    2. Did the PCRA court err in dismissing Appellant’s PCRA [p]etition
       without a hearing because trial counsel was ineffective for failing
       to move to sever Appellant’s case from that of [Smith] because of
       [Smith’s] admission of guilt[?3]

Appellant’s Brief at 4.

       On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the

record.    Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.

2017) (citation omitted). To prevail on a petition for PCRA relief, a petitioner

must plead and prove, by a preponderance of the evidence, that his conviction

or sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S. § 9543(a)(2). Additionally, we note

       [t]he right to an evidentiary hearing on a post-conviction petition
       is not absolute. It is within the PCRA court’s discretion to decline
       to hold a hearing if the petitioner’s claim is patently frivolous and
       has no support either in the record or other evidence. It is the
       responsibility of the reviewing court on appeal to examine each
       issue raised in the PCRA petition in light of the record certified
       before it in order to determine if the PCRA court erred in its
       determination that there were no genuine issues of material fact
       in controversy and in denying relief without conducting an
       evidentiary hearing.
____________________________________________


the victim’s wife. Id. at 8. Notably, Appellant’s “fingerprints were not found
at the scene.” Id.

3 At trial, the jury heard statements Smith made to an inmate, Mohammad
Doumbia, while Smith was in pretrial detention. Specifically, Smith told
Doumbia, that he, inter alia, had killed a “Dominican” during a robbery and
that a second person who participated in the crimes “had got locked up like in
Baltimore or something like that.” PCRA Court Opinion, 4/29/2019, at 9
quoting N.T., 7/10/2014, at 98. The PCRA court noted that “[t]he jury heard
that [Appellant] was arrested in Philadelphia.” Id.


                                           -3-
J-S48038-19


Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (citations

omitted). Because Appellant’s claims challenge the effectiveness of trial and

appellate counsel, we observe the following.

              It is well-established that counsel is presumed to have
              provided effective representation unless the PCRA
              petitioner pleads and proves all of the following: (1)
              the underlying legal claim is of arguable merit; (2)
              counsel’s action or inaction lacked any objectively
              reasonable basis designed to effectuate his client’s
              interest; and (3) prejudice, to the effect that there
              was a reasonable probability of a different outcome if
              not for counsel’s error.

       The PCRA court may deny an ineffectiveness claim if the
       petitioner’s evidence fails to meet a single one of these prongs.
       Moreover, a PCRA petitioner bears the burden of demonstrating
       counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal

citations omitted).

       In addition, because Appellant challenges specifically counsel’s failure

to request a mistrial,4 we keep in mind the following.

       In criminal trials, declaration of a mistrial serves to eliminate the
       negative effect wrought upon a defendant when prejudicial
       elements are injected into the case or otherwise discovered at
       trial. By nullifying the tainted process of the former trial and
       allowing a new trial to convene, declaration of a mistrial serves
       not only the defendant’s interest but, equally important, the
       public’s interest in fair trials designed to end in just judgments.
       Accordingly, the trial court is vested with discretion to grant a

____________________________________________


4 Co-defendant’s counsel objected to Officer Yatcilla’s testimony concerning
the fingerprints collected from the scene and later moved for a mistrial based
upon this testimony. N.T., 7/9/2014, at 71, 83. Appellant’s trial counsel also
objected to Officer Yatcilla’s testimony but did not move for a mistrial or join
the request made by co-defendant’s counsel. Id. at 72.


                                           -4-
J-S48038-19


      mistrial whenever the alleged prejudicial event may reasonably be
      said to deprive the defendant of a fair and impartial trial.

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016) (citation

omitted). “A mistrial is an extreme remedy that is required only where the

challenged event deprived the accused of a fair and impartial trial.”

Commonwealth v. Smith, 131 A.3d 467, 475 (Pa. 2015). “The trial court is

in the best position to assess the effect of an allegedly prejudicial statement

on the jury[.]” Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super.

2008) (citation omitted). Furthermore, “[m]ere passing references to criminal

activity will not require reversal unless the record indicates that prejudice

resulted from the reference.” Commonwealth v. Stafford, 749 A.2d 489,

496 (Pa. Super. 2000) (internal quotation marks and citation omitted).

      Because Appellant also challenges trial counsel’s failure to move to sever

Appellant’s case from that of Smith, we are mindful of the following.

      Criminal defendants may be joined where they allegedly
      participated in the same act or transaction.            Pa.R.Crim.P.
      1127(A)(2). Where conspiracy is charged, co-defendants should
      be tried together. Further, it is well established that a motion for
      severance is addressed to the sound discretion of the trial court,
      and that its decision will not be disturbed absent a manifest abuse
      of discretion. In determining whether to sever certain defendants,
      the court must balance the need to minimize the prejudice that
      may be caused by consolidation against the general policy of
      encouraging judicial economy. A better chance of acquittal from
      a separate trial is not sufficient cause to warrant severance.
      Rather, the defenses presented by the various defendants must
      be irreconcilable and exclusive and conflict at the core before the
      substantial prejudice burden is met.




                                     -5-
J-S48038-19


Commonwealth v. Presbury, 665 A.2d 825, 827-28 (Pa. Super. 1995)

(citations and quotation marks omitted).

       Following a review of the certified record and the briefs for the parties,

we conclude that the opinion of the Honorable Genece E. Brinkley thoroughly

addresses Appellant’s issues and arguments and applies the correct law to

facts that are supported by the record.          We discern no error or abuse of

discretion. Therefore, we adopt the PCRA court’s opinion of April 29, 2019, as

our own and affirm the order of the PCRA court based upon the reasons stated

therein.5    See PCRA Court Opinion, 4/29/2019, at 5-8 (concluding: (1)

because Appellant’s fingerprints were not found at the scene, no inference

could be drawn that Appellant had a prior criminal record; (2) the trial court

had already denied Smith’s request for a mistrial, which was made in response

to the same testimony to which Appellant objected, and was arguably more

prejudicial to Smith, whose fingerprints were found at the scene, and

Appellant did “not specify what argument [t]rial [c]ounsel should have made

in order to change [the trial c]ourt’s decision[;]” and (3) because trial counsel

was not ineffective for failing to move for a mistrial, appellate counsel could

not be deemed ineffective for failing to raise this “unmeritorious argument on

appeal”) and 8-11 (finding that: (1) because Appellant was arrested in

Philadelphia, Smith’s confession to Doumbia “actually exculpated” Appellant;

____________________________________________


5 The parties shall attach a copy of the PCRA court’s April 29, 2019 opinion to
this memorandum in the event of further proceedings.


                                           -6-
J-S48038-19


(2) even if Appellant did suffer some amount of prejudice by Smith’s admission

to Doumbia, “there was overwhelming evidence of [Appellant’s] guilt that the

absence of the statement would not have changed the outcome of trial[;]”

and (3) there was “substantial evidence” presented at trial, including 20

testifying witnesses and more than 120 exhibits over the course of a seven-

day trial and, because of this, severing the trials, where “almost all the

evidence presented at trial was admissible against both” Appellant and Smith,

would have been burdensome for the trial court and Commonwealth).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/19




                                    -7-
                                                                                                                 Circulated 09/24/2019 11:21 AM


                      ,..· ·�·: l   !�




                                                             IN THE COURT OF COMMON PLEAS
                                                        FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
               20}9                                              CRIMINAL TRIAL DIVISION


                                         COMMO�iEALTH OF                                   CP-51-CR-0001940-2017
                                         PENNSYLVANIA

                                              v.
                                                                                           SUPERIOR COURT
                                         LATEEFAH PERRY                                    2443 EDA 2018

                                                                             OPINION


                                         WOELPPER, J.                                      APRIL 26, 2019


                       I.                  PROCEDURAL & FACTUAL BACKGROUND

                                     The Commonwealth appeals this Court's judgment of acquittal on the conspiracy to

                commit aggravated assault charge as to Lateefah Perry ("Defendant").

                                     On the night of January 24, 2017, the complainant, Malika Adamson, attended a party at

                4513 North 13th Street in Philadelphia. Notes of Testimony ("N.T."), 12/5/2017 at 36, 52-54.

                Defendant (the complainant's God-sister), 1 Dion Kornegay, and his brother, Beano, were also

                present. During the party, the complainant got into an argument with Beano, which escalated

                into a physical fight. The complainant went outside and called the police. Id. at 52-56. The
0050_Opinion




                responding officer prepared a report and departed without making any arrests. Id. at 34-35.

                Defendant drove the complainant home that night. The following morning, the complainant

                sought medical treatment at Temple Hospital. Id. at 60-61. As a result of the fight, the

                complainant sustained a fractured orbital bone.




                I
                  In the notes of testimony, Defendant is referred to as the complainant's sister, step-sister, and God-sister. For
                clarity, we will refer to her as the complainant's God-sister.
           Two nights later, on the evening of January 26, 2017, the complainant was at her home

located at 3027 West Gordon Street. Id. at 14T----48. Her brother and two young children were

also in the home. Id at 122. Between 6:00 and 7:00 p.m., the complainant was standing on the

steps outside of her front door talking on the phone. Id. at 68-70. The complainant noticed four

individuals-Mr. Kornegay, two other males, and an unknown female-approaching. Id. at 70,

123-24. The complainant turned and ran into her house. Id at 72. The four individuals chased

after her and attempted to force their way into the complainant's home. Id. The complainant

struggled to close her front door and ultimately struck Mr. Komegay's hand with a brick to

remove it from the doorway. Id. at 73. The complainant then called the police. Id at 75. The

four individuals began to walk away toward 30th Street. Id. The complainant walked outside

and yelled from the street, "The cops are on their way. Don't leave now." Id. at 75-76.

           At this point, Mr. Kornegay was standing by the driver's side of the car that belonged to

Defendant and in which she was present. Id. at 77. The two other males and female got into the

car. Id at 79. Mr. Kornegay turned around and began shooting in the complainant's direction.

Id. The complainant ran back to her home. Id. The four individuals then quickly drove away in

reverse toward 29th Street. Id. at 80.

           On December 8, 2017, a jury found Defendant guilty of conspiracy to commit aggravated

assault. 2 This Court deferred sentencing for completion of a presentence investigation. On

February 15, 2018, Defendant filed a motion for judgment of acquittal. The Commonwealth

filed a response on March 19, 2018. On April 11, 2018, immediately before sentencing,

Defendant withdrew her motion for judgment of acquittal. Defendant was then sentenced to

eleven and one-half to twenty-three months of incarceration, followed by one year of probation,



2
    18 Pa.C.S. § 903; 18 Pa.C.S. § 2702.

                                                   2
with immediate parole. On April 18, 2018, Defendant filed a "Post-Sentence Motion for

Extraordinary Relief."3 On July 17, 2018, this Court granted the motion for extraordinary relief

and entered a judgment of acquittal on the conspiracy to commit aggravated assault charge. The

Commonwealth timely appealed to the Superior Court on August 10, 2018. That same day, this

Court ordered the Commonwealth to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). On August 28, 2018, the Commonwealth filed a Rule 1925(b)

statement.

       II.      DISCUSSION

             The Commonwealth asserts this Court erred when it granted Defendant's "post-sentence

motion and judgment of acquittal." The Commonwealth argues "the evidence, which established

that [D]efendant participated with her boyfriend [Mr. Kornegay] in a scheme to commit assault

and acted as a getaway driver following the shooting, was sufficient to prove conspiracy to

commit aggravated assault as found by the jury." Statement of Errors.

             A motion for judgment of acquittal "challenges the sufficiency of the evidence to sustain

a conviction on a particular charge, and is granted only in cases in which the Commonwealth has
failed to carry its burden regarding that charge." Commonwealth v. Abed, 989 A2d 23, 26 (Pa.

Super. 2010) (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa. Super. 2008)).

In reviewing the sufficiency of the evidence, a court must consider

                    whether viewing all the evidence admitted at trial in the light most
                    favorable to the verdict winner, there is sufficient evidence to enable
                    the fact-finder to find every element of the crime beyond a
                    reasonable doubt. In applying the above test, [a court] may not
                    weigh the evidence and substitute [its] judgment for the fact-finder.
                    In addition, . . . the facts and circumstances established by the
                    Commonwealth need not preclude every possibility of innocence.
                    Any doubts regarding a defendant's guilt may be resolved by the
                    fact-finder unless the evidence is so weak and inconclusive that as a

3
    Pursuant to Pa.R.Crim.P. Rule 720(8), Defendant filed a post-sentence motion for judgment of acquittal.

                                                           3
               matter of law no probability of fact may be drawn from the
               combined circumstances. The Commonwealth may sustain its
               burden of proving every element of the crime beyond a reasonable
               doubt by means of wholly circumstantial evidence. Moreover, in
               applying the above test, the entire record must be evaluated and all
               evidence actually received must be considered. Finally, the trier of
               fact while passing upon the credibility of witnesses and the weight
               of the evidence produced, is free to believe all, part or none of the
               evidence.

Id. ( emphasis omitted).

               Before granting a motion in arrest of judgment based on the
               insufficiency of the evidence, the court must make a finding that the
               evidence supporting the verdict of guilt is so weak and inconclusive
               that a jury of reasonable men and women could not be satisfied as
               to the guilt of the defendant beyond a reasonable doubt.

Commonwealth v. Harlow, 408 A.2d 479, 480 (Pa. Super. 1979) (quoting Commonwealth v.

Kaminsky, 361 A.2d 794, 798 (Pa. Super. 1976).

       To find Defendant guilty of conspiracy to commit aggravated assault, the Commonwealth

had to prove that she entered into an agreement with another person to commit or aid in an

assault, that she acted with a shared criminal intent, and that an overt act was taken in

furtherance of the conspiracy. 18 Pa.C.S. § 903. A person is guilty of aggravated assault ifhe

"attempts to cause serious bodily injury to another, or causes such injury intentionally,

knowingly or recklessly under circumstances manifesting extreme indifference to the value of

human life[.]" 18 Pa.C.S. § 2702(a)(l).

       The Commonwealth need not show an explicit or formal agreement between the

defendant and his co-conspirator but may instead rely on circumstantial evidence.

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013) (quoting Commonwealth v.

Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001)). "Circumstantial evidence can include, but is

not limited to, the relationship between the parties, the knowledge of and participation in the



                                                 4
crime, and the circumstances and conduct of the parties surrounding the criminal episode." Id.

(citing Commonwealth v. French, 578 A.2d 1292, 1294 (Pa. Super. 1990)).

       Viewed in the light most favorable to the Commonwealth as verdict winner, the

circumstances of this case do not establish that Defendant conspired to commit an assault on the

complainant. First, the complainant testified that although she recognized the car as belonging to

Defendant, she never saw her that evening. The complainant further stated there did not appear

to be anyone inside of the car. N.T. 12/5/2017 at 103�104. However, even if Defendant was

present inside of her car, the evidence was insufficient to show that she was aware of Mr.

Komegay's criminal intent. See Commonwealth v. Swerdlow, 636 A.2d 1173, 1177 (Pa. Super.

1994) (finding that mere presence is insufficient to establish a conspiracy "unless the defendant

had prior knowledge of his alleged co-conspirator's criminal intent"). Second, the

Commonwealth presented no evidence that Defendant knew Mr. Kornegay was in possession of

a weapon, let alone that he would use it to assault the complainant. After Mr. Kornegay and the

three other individuals were walking away from the complainant's home and in the direction of

the car, the complainant walked into the middle of the street and yelled after them. It was at this

moment that Mr. Kornegay turned around and spontaneously began shooting at the complainant.

N.T. 12/5/2017 at 104. Third, the surrounding circumstances leading up to the incident on

January 26th do not lend support to the Commonwealth's argument that Defendant shared a

criminal intent to assault the complainant. On January 24th, following the complainant's

physical altercation with Mr. Kornegay's brother, it was Defendant who tried to calm her God-

sister down and then drove her home. That Defendant and Mr. Kornegay were in a relationship

at the time is similarly insufficient by itself to establish that an agreement was formed. See

Commonwealth v. Chambers, 188 A.3d 400, 410 (Pa. 2018) ("No level of intimacy or history



                                                 5
between actors can replace the elements of the offense."). The circumstantial evidence presented

by the Commonwealth did not suffice to establish beyond a reasonable doubt that Defendant

conspired to commit an assault against the complainant. Accordingly, there is no merit to the

Commonwealth's claim to the contrary.

   III.      CONCLUSION

          For all of the reasons herein, this Court's judgment of acquittal should be affirmed and

Defendant should be discharged.

                                                                    BY THE COURT:

                                                                        ,J/1   /�
                                                                        I j/;1/tA1 -� -- l __/
                                                                    ndNNAM. woiLER, J.




                                                  6
                               IN THE COURT OF COMMON PLEAS
                          FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                   CRIMINAL TRIAL DIVISION


       COMMONWEALTH OF                                        CP-5l-CR-0001940-2017
       PENNSYLVANIA

               v.
                                                              SUPERIOR COURT
       LATEEFAH PERRY                                         2443 EDA 2018


                                     PROOF OF SERVICE

I hereby certify that I am this 26th day of April, 2019, serving the foregoing Opinion on the persons
indicated below:


By First Class Mail
Edward C. Meehan, Jr., Esq.
211 N. 13th Street, Suite 701
Philadelphia, PA 19107

By Interoffice Mail
Lawrence Goode, Supervisor, Appeals Unit
District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107



                                               \J.� W\WAJ
                                              C.Qu�d
                                              Law Clerk to the Honorable Donna M. Woelpper




                                                 7
