J-S11043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LAWRENCE DARNELL REDMAN                    :
                                               :
                      Appellant                :   No. 1363 WDA 2016

                  Appeal from the PCRA Order August 12, 2016
             In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0003824-2011



BEFORE:      OLSON, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 17, 2017

        Lawrence Darnell Redman (“Appellant”) appeals from the order

entered by the Court of Common Pleas of Westmoreland County dismissing

his first petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. § 9541-9546. Serving a sentence of 20 to 40 years’ incarceration

for Criminal Attempt – Criminal Homicide, 18 Pa.C.S. § 901(a) and two

counts of Aggravated Assault, 18 Pa.C.S. § 2709(a)(1), (4), for shooting his

girlfriend four times, Appellant contends that the PCRA court erroneously

denied relief on his claim that trial counsel ineffectively failed to request a

jury instruction on self-defense. We affirm.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S11043-17



     The PCRA court aptly summarizes the relevant factual history

underlying his case:

     The charges in this case arose from the shooting of Annamarie
     Henderson on September 24, 2011. Per the Trial Transcript, Ms.
     Henderson testified that into the morning hours of September
     24, 2011, she and [Appellant] went to Walmart on State Route
     30 in Greensburg where she attempted to cash a check. [N.T.
     8/6/12 - 8/9/12 at 390-91]. A problem ensued where Ms.
     Henderson realized that she did not want to be with [Appellant]
     so she got into the vehicle and left him in the parking lot of
     Walmart. At approximately 3:53 a.m., Ms. Henderson ultimately
     drove to her residence and fell asleep [inside the car]. Id.

     [Appellant] testified that after Ms. Henderson left him, he
     [eventually managed to arrive at her residence, at approximately
     5:30 a.m., for the purpose of retrieving] his wallet and gun that
     he had left in [her] car. Id. at 391-92. When he arrived, he
     found Ms. Henderson sleeping in her vehicle. Id. at 395. After
     obtaining a spare key, [Appellant] . . . opened the vehicle door
     in an attempt to retrieve his belongings[, he testified]. Id. at
     399. [Appellant] testified that Ms. Henderson awoke and was
     standing outside the door on the driver’s side. Id. At this time,
     [Appellant alleged], Ms. Henderson told him that all she needed
     to do was call the police and he would go to jail.            Id.
     Additionally, [Appellant] testified that Ms. Henderson said she
     would “cut” him, and she reached in the car to grab her purse.
     Id. at 399-401. [Appellant] testified that he did not have his
     gun at this time. Id.

     Ms. Henderson had previously testified that she usually kept a
     yellow and black razor blade knife in her purse, although she
     was unsure if she had it in her purse that evening. Id. at 224.
     [Appellant] testified that [her stated intention] caused him some
     concern because Ms. Henderson has pulled knives on him and
     his mother in the past. Id. at 401-02. At that point, [Appellant
     testified], he grabbed the gun and was heading towards the back
     of the car, going towards the driveway at Aviation Lane. Id.
     [Appellant] continued testifying on direct examination:

           Q:    What happened at this point?



                                   -2-
J-S11043-17


          A:    I pulled my weapon out of my holster and I
          shot over the back of the car like towards the
          ground. Towards – there’s a sidewalk and – I’m so
          sorry, Theresa. But I shot my weapon over the back
          of the car and Anna was coming towards me. She
          wasn’t just getting out of the car, she was coming
          after me. And she walked into the gunfire, I guess,
          because she turned around and I didn’t know she
          was hit.    And when she went to the ground, I
          thought she was diving to the ground to avoid being
          shot.

          Q:    Let me ask you this, Darnell. When you shot
          the gun, were you trying to hit her?

          A:    No, I was not trying to hit her.

          Q:    You shot four times.

          A:    Yes, I did shoot four times.

          Q:    Did you try to kill her with any of those shots?

          A:    No, sir, I didn’t.

          Q:    Were you trying to hit her with any of those
          shots?

          A:     No. I didn’t see her at that point because the
          light doesn’t stay on that long, it went off, and she
          was like – I don’t know, she was on the other side of
          the car.

     Id. at 401-02.

     On cross-examination, [Appellant] testified that he fired four
     warning shots as he attempted to retreat, the purpose of which
     was to stop Ms. Henderson from approaching. Id. at 437-39.
     However, [Appellant] struck Ms. Henderson each time he fired.
     Id. at 250-52. Prior to closing, Attorney Haidze indicated that
     after considerable discussion with three other senior attorneys in
     the Public Defender’s Office, he did not wish to request a self-
     defense instruction. Id. at 487.


                                     -3-
J-S11043-17


      During the trial, Ms. Henderson also testified to two separate
      incidents involving [Appellant].    Specifically, Ms. Henderson
      testified that [one month before the shooting] she grabbed a
      knife to defend herself after [Appellant] became jealous and
      angry and physically assaulted her. Further, she testified that,
      “I’m – I’m a hundred thirty pounds, he’s two-something. I’m – I
      wasn’t going to be able to hurt him anyhow. I definitely did not
      go at him. If he came at me, I wanted to have something to
      protect myself. Id. at 212. [Appellant] testified that he was six
      feet tall and weighed 250 pounds. Id. at 411. Due to that
      altercation, [Appellant] inflicted a bloody, broken nose and
      fractured orbital bone upon Ms. Henderson using his hands. Id.
      at 192, 382.      [Appellant] also testified that prior to these
      incidents he had been employed at liquor establishments as a
      bouncer. Id. at 388, 418-420.

Trial Court Opinion, filed August 12, 2016, at 3-5.

      On August 9, 2012, a jury found Appellant guilty of the above-

mentioned crimes, and the trial court sentenced him on November 5, 2012.

This Court affirmed judgment of sentence on November 19, 2013, and the

Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of

Appeal on April 21, 2014.

      On August 21, 2014, Appellant filed this timely PCRA petition, his first.

Counsel was appointed and, after initially filing a No-Merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988), withdrew his motion to withdraw

and filed, instead, an amended PCRA petition asserting ineffective assistance

of trial counsel for failing to request a jury instruction on self-defense. On

June 2, 2016, the PCRA court presided over an evidentiary hearing at which

Appellant and trial counsel testified.




                                         -4-
J-S11043-17


      [Appellant testified that the motivating factor for his testimony
      at trial was to explain to the jury that he was acting in self-
      defense. N.T. 6/24/16 at 18. [Appellant] contended that he was
      aware that the victim ordinarily kept a knife in her purse[,] and
      [he] feared she intended to use it. Id. Additionally, [Appellant]
      testified that at no point did trial counsel discuss his inclination
      not to request a self-defense instruction. Id. at 20.

      Attorney Haidze also testified at the Evidentiary Hearing.
      Attorney Haidze testified that he was aware that Ms. Henderson
      previously brandished a knife and threatened [Appellant]. Id. at
      5. However, Attorney Haidze testified that he believed that the
      accidental injury jury instruction was more appropriate given the
      circumstances of the case, as he did not want to confuse the jury
      with two distinct instructions. Id. at 5-7.

Trial Court Opinion, at 5.

      Informed by both the hearing and advocates’ briefs, the court entered

its order of August 12, 2016, denying Appellant’s claim and dismissing his

petition. This timely appeal followed.

      Appellant presents one question for our review:

      [DID] THE COURT OF COMMON PLEAS ERR[] IN FINDING
      THE   PETITIONER’S   TRIAL  COUNSEL    WAS    NOT
      INEFFECTIVE FOR FAILING TO REQUEST A JURY
      INSTRUCTION    ON   SELF-DEFENSE,  DESPITE    THE
      PETITIONER’S SELF-DEFENSE TESTIMONY AND TRIAL
      COUNSEL’S CLOSING REFERENCING SELF-DEFENSE[?]

Appellant’s brief at 2.

      PCRA petitions are subject to the following standard of review:

      “[A]s a general proposition, we review a denial of PCRA relief to
      determine whether the findings of the PCRA court are supported
      by the record and free of legal error.” Commonwealth v.
      Dennis, 609 Pa. 442, 17 A.3d 297, 301 (Pa.2011) (citation
      omitted). A PCRA court's credibility findings are to be accorded
      great deference, and where supported by the record, such
      determinations are binding on a reviewing court. Id. at 305


                                     -5-
J-S11043-17


      (citations omitted). To obtain PCRA relief, appellant must plead
      and prove by a preponderance of the evidence: (1) his
      conviction or sentence resulted from one or more of the errors
      enumerated in 42 Pa.C.S. § 9453(a)(2); (2) his claims have not
      been previously litigated or waived, id., § 9543(a)(3); and (3)
      “the failure to litigate the issue prior to or during trial ... or on
      direct appeal could not have been the result of any rational,
      strategic or tactical decision by counsel[,]” id., § 9543(a)(4).
      An issue is previously litigated if “the highest appellate court in
      which [appellant] could have had review as a matter of right has
      ruled on the merits of the issue[.]” Id., § 9544(a)(2). “[A]n
      issue is waived if [appellant] could have raised it but failed to do
      so before trial, at trial, ... on appeal or in a prior state
      postconviction proceeding.” Id., § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

      The governing legal standard of review of ineffective assistance of

counsel claims is well-settled:

            [C]ounsel 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.        Strickland v.
            Washington, 466 U.S. 668 (1984). . . . To prove
            counsel ineffective, the petitioner must demonstrate
            that (1) the underlying legal issue has arguable
            merit; (2) counsel's actions lacked an objective
            reasonable basis; and (3) the petitioner was
            prejudiced    by    counsel's    act   or    omission.
            Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa.
            1987). A claim of ineffectiveness will be denied if
            the petitioner's evidence fails to satisfy any one of
            these prongs.

      Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa. 2012)
      (citations formatted). Furthermore, “[i]n accord with these well-
      established criteria for review, [an appellant] must set forth and
      individually discuss substantively each prong of the Pierce test.”
      Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super.
      2009).

Commonwealth v. Perzel, 116 A.3d 670, 671–672 (Pa.Super. 2015).


                                      -6-
J-S11043-17



      Appellant claims that trial counsel was ineffective for not requesting a

jury instruction on the law of self-defense given his testimony that he

inadvertently struck a threatening Ms. Henderson with four “warning shots,”

which he aimed not at her but, instead, at the ground. It was by Appellant’s

own testimonial account of the event as an unintentional shooting, however,

that he abandoned a self-defense defense and, consequently, lost any

prerogative to request a self-defense instruction.

      In Commonwealth v. Philistin, 53 A.3d 1, 12 (Pa. 2012), the

Pennsylvania Supreme Court held that a defendant who admits only to an

unintentional shooting foregoes a self-defense defense:

      “[T]he defense of self-defense necessarily requires that the
      appellant admit that the shooting was intentional in order to
      protect one's self.” Commonwealth v. Harris, 542 Pa. 134,
      665 A.2d 1172, 1175 (1995) (citing Commonwealth v.
      Hobson, 484 Pa. 250, 398 A.2d 1364, 1368 (1979)). Likewise,
      an imperfect self-defense claim “‘is imperfect in only one
      respect—an unreasonable rather than a reasonable belief that
      deadly force was required to save the actor's life. All other
      principles of justification under 18 Pa.C.S. § 505 must [be
      satisfied to prove] unreasonable belief voluntary manslaughter.’”
      Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 947
      (2001) (quoting Commonwealth v. Tilley, 528 Pa. 125, 595
      A.2d 575, 582 (1991)). Thus, to maintain a self-defense or
      imperfect self-defense claim, appellant must admit he
      intentionally shot the officers to protect himself. Here, appellant
      claims he “fired at the ground,” Appellant's Brief, at 64, not at
      the officers.     Thus, self-defense or imperfect self-defense
      defenses are inapplicable, and trial counsel was not ineffective in
      failing to present them.

Philistin, 53 A.3d at 12 (emphasis added).           As Appellant’s testimony

brought his case within the ambit of Philistin, we discern no arguable merit



                                     -7-
J-S11043-17



to Appellant’s ineffectiveness claim.   Accordingly, the PCRA court properly

denied him relief.

      Order is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2017




                                    -8-
