J-S15010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DONTE CANNON

                         Appellant                   No. 1809 EDA 2017


             Appeal from the PCRA Order entered May 15, 2017
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0008426-2010


BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 14, 2018

     Appellant, Donte Cannon, appeals from the May 15, 2017 order entered

in the Court of Common Pleas of Philadelphia County, denying his petition for

collateral relief filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

     The PCRA court provided the following procedural history:

     On March 28, 2012, [Appellant] was convicted, by a jury of his
     peers, of Second Degree Murder, 18 Pa.C.S. § 2502(b), as a felony
     of the first degree; two (2) counts of Robbery, 18 Pa.C.S. § 903,
     as a felony of the first degree; a Violation of the Uniform Firearms
     Act [(VUFA)] (Carrying Firearms in Public), 18 Pa.C.S. § 6108, as
     a misdemeanor of the first degree; and possession of an
     Instrument of Crime (PIC), 18 Pa.C.S. § 907, as a misdemeanor
     of the first degree. On the same day, [Appellant] was sentenced
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       to Life Without the Possibility of Parole for the         murder
       conviction.[1]

       On April 30, 2012, [Appellant’s] post-trial motion challenging the
       weight and sufficiency of the evidence against him was denied
       without a hearing.

PCRA Court Opinion, 10/3/17, at 1.

       As the PCRA court further explained, Appellant filed a direct appeal to

this Court, again challenging the weight and sufficiency of the evidence. On

September 8, 2014, we affirmed the trial court’s judgment of sentence. On

February 11, 2015, our Supreme Court denied Appellant’s petition for

allowance of appeal. Id.

       Appellant filed a timely PCRA petition on January 19, 2016. Appointed

counsel was replaced by retained counsel who filed an amended petition on

Appellant’s behalf.       In response to a motion to dismiss filed by the

Commonwealth, Appellant’s counsel filed a brief in opposition.              The

Commonwealth filed a reply. Id. at 2.

       On April 6, 2017, the PCRA court determined that Appellant’s PCRA

claims lacked merit and denied the petition. The court then issued a notice of

its intention to dismiss the petition in accordance with Pa.R.Crim.P. 907,

advising Appellant that the petition would be formally dismissed on May 11,

2017. Appellant did not file a response. Id.


____________________________________________


1 The trial court also imposed a concurrent sentence of ten to twenty years for
each robbery, ten to twenty years for criminal conspiracy, two and one-half
to five years for VUFA, and two and one-half to five years for PIC.

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      Following dismissal of the petition on May 15, 2017, Appellant filed a

timely appeal to this Court. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant’s present four issues for our consideration:

      1. Was [A]ppellant [] denied the effective assistance of counsel
         and a fair trial when trial counsel described “reasonable doubt”
         as a “real” and “substantial” doubt, as those terms reduced the
         burden of proof and thus deprived [Appellant] of the due
         process of law?

      2. Was [A]ppellant denied a fair trial, due process of law, the right
         to confront adverse witnesses, and the effective assistance of
         trial and/or direct appeal counsel when he was precluded from
         showing that if the main accusing witness Shandee Stewart
         was found to have breached her plea agreement that murder
         charges could be reinstated against her, an error compounded
         by trial counsel’s failure to introduce evidence that Stewart was
         “functioning in either the borderline range of intellectual ability
         or the mild range of mental retardation[?]”

      3. Was [A]ppellant denied the effective assistance of counsel and
         a fair trial when impermissible other crimes evidence was
         introduced, in one instance by his own counsel during the
         examination of character witnesses?

      4. Is the [A]ppellant entitled to relief under a “cumulative
         prejudice” standard?

Appellant’s Brief at 6 (some capitalization omitted).

      On direct appeal, this Court provided a thorough summary of the

underlying facts of the case. Commonwealth v. Cannon, 1342 EDA 2012

at 1-6 (Pa. Super. filed September 8, 2014) (adopting Trial Court Opinion,

3/7/13, at 2-8). While a detailed summary was appropriate in light of the



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challenges to the weight and sufficiency of the evidence, such detail is not

required here. Therefore, we provide the following abridged summary of the

facts relevant to the issues before us.

      On January 23, 2010 at approximately 10:00 P.M., two Philadelphia

police officers responded to a report of shots fired on the 5500 block of

Beaumont Street in Philadelphia. One of the two officers, Officer Eric Riddick,

testified that he saw two women, including Shandee Stewart (Stewart), walk

toward his patrol car. Stewart told the officer that an incident had occurred

on the block.

      Officer Riddick exited his vehicle and discovered the deceased victim,

Philippe Koukoui (Koukoui), lying facedown in a vacant lot with a gunshot

wound to the back of his head. In the victim’s backpack, he found several

items including a cell phone, baggies and a small amount of marijuana. In a

lot across the street, he discovered three shell casings.

      While at the scene, Officer Riddick was approached by James Henderson

(Henderson). At trial, Henderson testified that he and Koukoui went to visit

Stewart and smoke marijuana. The three left Stewart’s home and walked

down the street when a male pointed a gun at Henderson, grabbed him, and

started going through his pockets.        He turned to see another male grab

Koukoui while pointing a gun at Koukoui. The male holding Henderson told

him to turn around, not look back, and run toward an alleyway. He heard

Stewart say, “Oh, my God, what’s going on[?]” As Henderson was running


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through the alley, he heard gunshots. He went to his home and put on another

pair of sneakers, because one of his came off as he ran through the alley. He

returned to the scene and told the police that he and his friend had been

robbed.

         In a statement given to police, Henderson described his assailant and

what the assailant was wearing. He also stated the gun pointed at him was

silver but he did not know if it was a revolver or an automatic. At trial, he

testified he did not remember giving those answers.

         Stewart testified that she knew Koukoui from buying marijuana from

him on two occasions. She had his cell number in her cell phone and called

Koukoui on the day of the shooting to say she wanted to buy marijuana.

Koukoui and another male arrived at her home approximately ten minutes

later.

         Stewart also testified that Appellant was at her home and they discussed

robbing Koukoui before she called Koukoui. After Appellant made a phone

call, his co-defendant, Aaron McCallum, arrived at Stewart’s house. Stewart,

Appellant, and McCallum talked about robbing Koukoui. The two men told

Stewart to call Koukoui and say she wanted five bags of marijuana for $10.00.

Appellant and McCallum said they would wait in Stewart’s basement and would

leave the house through the back door to rob Koukoui.

         Koukoui called Stewart when he arrived at her home, accompanied by

Henderson. Koukoui said he would not sell her marijuana for the requested


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price.    The three left Stewart’s house and walked down Beaumont Street

toward 55th Street. She then saw Appellant come from a vacant lot on one

side of the street and McCallum come from a vacant lot on the other side of

the street. Both Appellant and McCallum were holding guns and grabbed their

respective victims by the shirt. She ran back to her house and saw Henderson

running and McCallum firing his gun.

         When Stewart got back to her house, she went to the basement where

she found Appellant. Appellant said, “I think the boy is dead.” Stewart then

went upstairs and told her mother that the boys she was with were robbed.

She and her mother went outside, saw a police car coming down the street,

and told the police she heard gunshots. Stewart was taken to Homicide for

investigation.

         At the Homicide Division, Stewart told the detectives about the robbery

and Appellant’s as well as McCallum’s involvement. She consented to a search

of her cell phone and was taken into custody.2             On April 27, 2011,

approximately fifteen months after the shooting, Stewart entered into a

Memorandum of Agreement with the District Attorney’s Office under the terms

of which she would plead guilty to two counts of robbery and conspiracy with




____________________________________________


2 The director of the DA’s Office Technical Services Unit testified at trial that
he extracted information from Stewart’s phone on February 7, 2011, including
a text at 9:54:21 on the night of the shooting from Stewart to McCallum that
read, “They about to come out.”

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the murder charge being nolle prossed. As of the time of the trial in March of

2012, she had not been sentenced.

         Based on information from Stewart, police returned to her home where

they located Appellant in the basement.          They took him to the Homicide

Division where he stated he did not know either Henderson or Koukoui; that

he and McCallum talked about robbing the two men; that Stewart called him

and said the two men they were going to rob did not carry guns; and that he

knew McCallum probably had a gun. He was with Stewart and McCallum when

the two victims arrived at Stewart’s housel. Appellant followed one of the two

men from Stewart’s home, grabbed him, and started fighting with him. He

claimed he got two cigarettes from the male he robbed. He saw the other

male had a backpack and tried to run away from McCallum. Appellant heard

four or five gunshots. After the shooting, McCallum called Appellant and asked

if anyone was shot. Appellant told him someone was dead and that detectives

were at his aunt’s house. McCallum said he was going on the run.

        Again, at the conclusion of the trial, Appellant was convicted of second-

degree murder, two counts of robbery, and related crimes.3 He was sentenced

to life without the possibility of parole plus concurrent sentences for the

remaining convictions. In this appeal from denial of his PCRA petition, he

alleges ineffectiveness for trial counsel’s characterization of “reasonable



____________________________________________


3   The jury also returned jury verdicts against McCallum.

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doubt,” for matters related to Stewart’s plea agreement, and for referring to

Appellant’s marijuana conviction. He also claims entitlement to relief under a

“cumulative prejudice” standard.

      Our standard of review is well-settled. “In reviewing the denial of PCRA

relief, we examine whether the PCRA court’s determination is supported by

the record and free of legal error.” Commonwealth v. Taylor, 67 A.3d 1245,

1248 (Pa. 2013) (citation and internal quotations omitted), cert. denied, 134

S.Ct. 2695 (U.S. 2014).

      In Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011), our Supreme

Court explained:

      We begin our analysis of ineffectiveness claims with the
      presumption that counsel is effective. [Commonwealth v. Rios,
      920 A.2d 790, 799 Pa. 2007)]. To prevail on his ineffectiveness
      claims, Appellant must plead and prove, by a preponderance of
      the evidence, three elements: (1) the underlying legal claim has
      arguable merit; (2) counsel had no reasonable basis for his action
      or inaction; and (3) Appellant suffered prejudice because of
      counsel’s action or inaction. Commonwealth v. Steele, 599 Pa.
      341, 961 A.2d 786, 796 (2008) (citing Commonwealth v.
      Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). With regard to the
      second, i.e., the “reasonable basis” prong, we will conclude that
      counsel’s chosen strategy lacked a reasonable basis only if
      Appellant proves that “an alternative not chosen offered a
      potential for success substantially greater than the course actually
      pursued.” Commonwealth v. Williams, 587 Pa. 304, 899 A.2d
      1060, 1064 (2006) (citation omitted). To establish the third, i.e.,
      the prejudice prong, Appellant must show that there is a
      reasonable probability that the outcome of the proceedings would
      have been different but for counsel’s action or inaction.
      Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 954
      (2008).



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Id. at 259-60.

       In his first issue, Appellant argues trial counsel was ineffective for

describing “reasonable doubt” as a “real” and “substantial” doubt, claiming

those terms reduced the burden of proof and deprived him of due process.

The PCRA court rejected Appellant’s contentions for three reasons.             As the

PCRA court noted:

       He gave at least three examples of it, as well as did the well known
       example with the scales of justice where he stood up and held his
       arms out and tilted them.
       In totality, he gave a very persuasive argument for the defense,
       in fact, a tutorial on reasonable doubt, if one were to read
       counsel’s closing argument. [Appellant] isolates only a few of
       counsel’s words of that seven-page description of reasonable
       doubt.
       Counsel’s remarks must be read as a whole and in context and as
       such, they constitute a fair description of reasonable doubt.
       Moreover, the trial court’s use of the word, substantial, in defining
       reasonable doubt has been found by the Pennsylvania Supreme
       Court to not impermissibly alter the Commonwealth’s burden of
       proof, and that is Commonwealth v. Stokes[, 615 A.2d 704 (Pa.
       1992).]
       Finally, the court charged the jury on the legal definition and also
       told the jury that they are only bound by the legal definitions given
       to them by the court. Therefore, this issue has no merit.

Notes of Testimony, PCRA Hearing, 4/6/17, at 5-6 (some capitalization

omitted). We agree. Our reading of counsel’s argument confirms that he did

not reduce the burden of proof for Appellant. Rather, he cogently explained

in   detail   the   concept   of   reasonable   doubt,   distinguishing   it    from

“preponderance” and “clear and convincing.” Notes of Testimony, Trial, 3/27,

16, at 127-133. More importantly, prior to closing arguments, the trial court

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instructed the jurors as follows: “You are not bound by any principles of law

mentioned by counsel during closing arguments. You are, however, bound by

the law as I will give it to you at the end of closing arguments.” Notes of

Testimony, Trial, 3/27/12, at 126. After counsel delivered closing arguments,

the trial court again directed the jurors to apply only the law as instructed by

the trial court. The court then accurately explained reasonable doubt. Notes

of Testimony, Trial, 3/28/12, at 15-19.

      Juries   are   presumed     to   follow   the   trial   court's   instructions.

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010). Further, as

in Commonwealth v. Green, 581 A.2d 544 (Pa. 1990), “the trial court

nonetheless gave the jury instructions that the arguments of counsel were not

evidence or statements of law and that the Commonwealth labored under the

burden of proving guilt beyond a reasonable doubt or the jury was to acquit.”

Id. at 562. As in Green, we conclude counsel’s remarks were not prejudicial

to Appellant and the trial court’s instructions were proper.                Because

Appellant’s first claim lacks arguable merit, Appellant is not entitled to relief.

      Appellant next asserts the PCRA court erred by rejecting Appellant’s

ineffectiveness claim based on failure to present impeachment evidence in the

form of Stewart’s mental health evaluation and her plea agreement.               We

disagree.

      Here, Stewart underwent a mental health evaluation in April 2010 to

determine whether she was competent to stand trial.                 The diagnostic


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formulation included a determination that Stewart is “functioning in either the

borderline range of intellectual ability or the mild range of mental retardation.”

Mental Health Evaluation, 4/26/10, at 2.       The recommendations following

examination indicated that “in spite of her intellectual and emotional

limitations [Stewart] is capable of taking part in legal proceedings.” Id. at 3.

      Appellant argues trial counsel was ineffective for not impeaching

Stewart with the evaluation. However, our Supreme Court has explained that

“[o]nly mental health disabilities that impair a witness’s ability to observe,

recall, or report events, are relevant and admissible to impeach a witness’s

credibility.”   Commonwealth v. Davido, 106 A.3d 611, 637 (Pa. 2014)

(citation omitted). Appellant’s evaluation did not reveal any such disability.

In fact, the evaluator determined that her “recent and remote memory are

fairly good” and that she was ‘capable of taking part in legal proceedings.”

Mental Health Evaluation, 4/26/10, at 2, 3. Further, Appellant suggests that

Stewart’s evaluation would have evidenced her susceptibility to “suggestion

or pressure” by law enforcement.       Appellant’s Brief at 25.    However, the

evaluation reflected that she was “aware of the charges against her,” and had

a “working knowledge of the legal process” and the ability to “cooperate with

counsel.” Mental Health Evaluation, 4/26/10, at 2. Therefore, the evaluation

does not support a claim that she was an easily manipulated witness.

      Regarding the plea agreement, Appellant complains that Stewart’s

counsel testified at trial that the murder charge against her could not be


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reinstated and that the trial court stated the same thing in the presence of the

jury. Appellant’s Brief at 22. Appellant contends his trial counsel objected on

the grounds the evidence was false and trial counsel was not an expert.

However, counsel did not pursue the issue on appeal.

      Appellant ignores the fact that Stewart’s plea agreement was entered

into evidence and clearly reflected, inter alia, that she would not protect any

persons through omission or false information; that she would testify truthfully

and would face perjury charges if she did not; and that any violation of the

terms of the agreement—including if she lied or stopped cooperating—would

render the agreement null and void. Under any such circumstance, she would

be prosecuted to the fullest extent of the law.         Memorandum of Plea

Agreement, 6/3/11, at ¶¶ at 3, 4 and 12. More importantly in the context of

Appellant’s claims, Stewart herself testified she was aware that murder

charges could be reinstated against her.      See Notes of Testimony, Trial,

3/22/12, at 195.

      Appellant has not proven any arguable merit to his assertions regarding

the mental health evaluation or the plea agreement. Nor has he demonstrated

that he was prejudiced by counsel’s actions. Because Appellant’s claim of trial

counsel ineffectiveness fails, his claim of appellate counsel’s ineffectiveness

for failing to raise the issue on appeal similarly fails.   Commonwealth v.

Elliott, 80 A.3d 415, 427 (Pa. 2013) (“If the petitioner cannot prove the

underlying claim of trial counsel ineffectiveness, petitioner’s derivative claim


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of appellate counsel ineffectiveness fails.”). Appellant’s is not entitled to relief

on his second ineffectiveness claim.

      In his third issue, Appellant complains his counsel was ineffective for not

filing a motion in limine to preclude evidence of a marijuana conviction and

for mentioning the conviction in the course of examining character witnesses

as well as in his closing argument. Appellant contends the prejudice to him is

clear because his defense was actual innocence, making credibility paramount.

While the PCRA court agreed there was merit to Appellant’s claim, it

nevertheless rejected it because Appellant failed to demonstrate prejudice.

      As the PCRA court noted, counsel made a choice to present Appellant as

both law-abiding and peaceful. Had he chosen to present testimony as to

peacefulness only, the conviction would not have come in. However, “neither

would the jury have heard that [Appellant] had a reputation for being law-

abiding, which is very powerful evidence for a jury to hear, especially when

the conviction is only a misdemeanor marijuana conviction and this is the trial

of a homicide.” Notes of Testimony, PCRA Hearing, 4/6/17, at 3. Further,

counsel “used the marijuana conviction and juxtaposed [Appellant’s] minor

conviction and good character against some of the witnesses’ crimes of

violence in his closing argument.” Id. at 2-3. Therefore, while Appellant’s

assertion had merit, satisfying the first requirement of the ineffectiveness test,

Appellant could not demonstrate second or third elements, i.e., that counsel




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did not have a reasonable basis or that Appellant suffered prejudice affecting

the outcome of his trial. See Spotz, supra. Appellant’s his third issue fails.

      In his fourth issue, Appellant asks that we consider a “cumulative

prejudice” claim if we reject, as we have, his first three claims.         Citing

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009), he suggests a

cumulative error analysis is permitted when evidentiary or other rulings

overlap. He asserts that the errors alleged here are intertwined, claiming:

      The introduction of the marijuana conviction diminished
      [A]ppellant’s credibility, the failures regarding the cooperating
      witness increased her believability, and counsel then reduced the
      prosecution burden of proof. All of this occurred in a case where
      no physical evidence linked [A]ppellant to the crime and his post-
      crime behavior—remaining at the house even after police were
      there once—reflects a lack of consciousness of guilt.

Appellant’s Brief at 29. While acknowledging Appellant’s confession to the

crimes, he notes that the jury, as finder of fact, is “not compelled to believe

the matters contained in the confession and to automatically return a verdict

of guilty, since the confession is not decisive of the issue of the defendant’s

guilt or innocence.” Id. at 30.

      In addressing Appellant’s individual claims, the PCRA court properly

determined that none except “the introduction of [Appellant’s] conviction for

the possession of marijuana” had merit, and even that claim failed for lack of

prejudice to Appellant.     Therefore, Appellant’s assertion we can find

“cumulative prejudice” fails because Appellant he has not demonstrated the

“multiple instance of deficient performances” that our Supreme Court


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considered in Commonwealth v. Hannibal, 156 A.3d 197, 234 (Pa. 2016),

to be sufficient to support a cumulative prejudice finding. See Appellant’s

Brief at 29.   We find no error in the PCRA court’s rejection of Appellant’s

cumulative prejudice claim.

     The PCRA court’s determinations are supported by the record and free

of legal error. Therefore, we shall not disturb the court’s May 15, 2017 order

dismissing Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/18




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