J-S29018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DAVID NAM                                :
                                          :
                     Appellant            :   No. 3641 EDA 2018

          Appeal from the PCRA Order Entered December 19, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0302561-1997


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 21, 2019

      David Nam appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition for relief filed under the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we affirm.

      The PCRA court summarized the facts as follows:
      On August 16, 1996, [Nam] and four of his friends attempted to
      rob the home of Anthony Schroeder. When Schroeder came to
      the door with a gun, [Nam] immediately shot him through the
      screen door and killed him. [Nam] and [his] co-conspirators ran
      away but returned a few minutes later to steal Schroeder’s gun.
      Several days later, [Nam’s] co-defendants committed another
      robbery during which time they were arrested. Police recovered
      [Schroeder’s] stolen gun from [Nam’s] co-defendants and
      eventually connected Schroeder’s murder to [Nam]. On January
      18, 1997, [Nam] was arrested and charged with murder. [Nam]
      was originally held without bail. On May 22, 1997, the Honorable
      Carolyn Temin granted [Nam’s] motion to change his bail status.
      On January 12, 1998, [Nam] was released on bail and placed on
      house arrest. After appearing at several pretrial hearings, [Nam]
      eventually fled to South Korea on March 12, 1998, the date of his
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      next court hearing. He was detained by Korean authorities in
      1999 but was eventually released as a South Korean citizen, since
      no extradition agreement existed between South Korea and the
      United States at that time. Later that same year, an extradition
      agreement was ratified between the two countries[,] but [Nam]
      managed to evade both South Korean and American authorities.
      [Nam] remained in South Korea for over ten years. On March,
      18, 2008, [Nam] was arrested in South Korea. In order to fight
      extradition to the United States, [Nam] wrote to the South Korean
      [j]udge handling his matter[,] admitting to his crimes and
      expressing deep remorse. He also begged the [j]udge not to
      extradite him to the United States.
      On September 16, 2008, the South Korean government granted
      the FBI’s extradition request and [Nam] was placed into the
      custody of the FBI and brought back to Pennsylvania to stand trial.
      Before leaving South Korea[,] [Nam] was notified that he would
      not be able to bring any of his belongings with him. As a result,
      [Nam] requested that FBI Agent [Kevin] McShane take possession
      of several documents and photographs belonging to [Nam] and
      bring them back to the United States.

      Several of these documents were letters which [Nam] wrote and
      sent to the South Korean [j]udge handling his extradition matter.
      These letters included incriminating statements and admissions to
      his crime. Ultimately, after a motion to suppress these documents
      was argued before the Honorable Renee Cardwell Hughes, these
      documents were [] allowed into evidence at trial.

Trial Court Opinion, 2/28/19, at 1-3.

      On January 29, 2010, a jury found Nam guilty of the above offenses.

He was sentenced to life sentence imprisonment, plus a consecutive aggregate

term of 12½ to 25 years’ incarceration.      Nam appealed his judgment of

sentence to this Court and we affirmed his judgment of sentence on March

25, 2011. Commonwealth v. Nam, 642 EDA 2010 (Pa. Super. March 25,

2011). Nam filed a petition for allowance of appeal, which the Pennsylvania

Supreme Court denied on September 14, 2011. Commonwealth v. Nam,


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29 A.3d 372 (Pa. 2011) (per curiam). Nam timely filed a pro se PCRA petition

on August 8, 2012. On February 28, 2017, Nam amended his petition pro se.1

The PCRA court appointed counsel and he filed a counseled amended PCRA

petition on February 10, 2018. On September 6, 2018, the Commonwealth

filed a motion to dismiss the petition. The PCRA court sent a Pa.R.Crim.P. 907

notice of intent to dismiss on November 19, 2018. After a counseled response

from Nam, the PCRA court dismissed the petition on December 19, 2018. This

timely appeal followed.

       The sole issue on appeal is whether trial counsel was ineffective for

failing to object to the trial court’s jury instruction regarding the beyond-a-

reasonable-doubt standard. Nam argues the jury instruction mischaracterized

the reasonable doubt standard and he suffered prejudice as a result.

       Nam’s issue concerns trial counsel’s effectiveness. We presume counsel

was    effective,   and    it   is   Nam’s     burden   to   prove   otherwise.   See

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). To prevail on an

ineffectiveness claim, Nam must establish:

       (1) the underlying claim has arguable merit; (2) no reasonable
       basis existed for counsel’s actions or failure to act; and (3)
____________________________________________


1 We note that the original petition was not acted upon for more than four
years. In the record, there is no explanation for the inaction. Even though
Nam amended his petition more than four-and-a-half years after the filing of
the original petition, the amended petition is still timely. See Pa.R.Crim.P.
905(a) (amendments “shall be freely allowed to achieve substantial justice”);
See also Commonwealth v. Flanagan, 854 A.2d 489, 495-96, 499-500 (Pa.
2004) (PCRA petition properly treated as amended petition not subject to one-
year time limitation even though it had been “dormant for ten years”).

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     [appellant] suffered prejudice as a result of counsel’s error such
     that there is a reasonable probability that the result of the
     proceeding would have been different absent such error.

Commonwealth v. Lesko, 15 A.3d 345, 373 (Pa. 2011). Nam must prove

each element; merely alleging each element is not sufficient.             See

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015). A reasonable

basis does not require that counsel chose the most logical course of action,

but that the decision had some reasonable basis. Commonwealth v. Bardo,

105 A.3d 678, 684 (Pa. 2014). “To demonstrate prejudice, a petitioner must

show that there is a reasonable probability that, but for counsel’s actions or

inactions, the result of the proceeding would have been different.” Mason,

130 A.3d at 618 (citing Strickland v. Washington, 466 U.S. 668, 684

(1984)).

     “A trial court’s charge to the jury must contain a correct statement of

the law.” Commonwealth v. Patosky, 656 A.2d 499, 505 (Pa. Super. 1995)

(citations omitted). Due process prohibits the conviction of a person except

upon proof beyond a reasonable doubt. A court is free to use its own form of

expression as long as it adequately, accurately, and clearly explains the law

to the jury.   Commonwealth v. Wright, 961 A.2d 119, 145 (Pa. Super.

2008). When addressing challenges to a jury instruction, we consider the

challenged portion in light of the entire instruction. Commonwealth v. Ly,

980 A.2d 61, 88 (Pa. 2009).

     Here, the trial court instructed the jury on reasonable doubt as follows:


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     [T]his burden we talk about, proof beyond a reasonable doubt, is
     the highest standard in the law. There is nothing greater, and
     that is the burden the Commonwealth bears. But this does not
     mean that the Commonwealth must prove its case beyond all
     doubt.    The Commonwealth is not required to meet some
     mathematical certainty. The Commonwealth is not required to
     demonstrate the complete impossibility of innocence.         The
     Commonwealth is[,] in fact[,] not required to answer every single
     question you may have.

     The Commonwealth’s burden is to prove the elements of each and
     every crime beyond a reasonable doubt. Now, a reasonable doubt
     is a doubt that would cause a reasonably careful and sensible
     person to pause, to hesitate or to refrain from acting upon a
     matter of the highest importance to their own affairs or their own
     interests. A reasonable doubt must fairly arise out of the evidence
     that was presented or out of the lack of evidence that was
     presented or out of the lack of evidence that was presented with
     respect to some element of each of the crimes charged.

     I find it useful to think about reasonable doubt this way.
     Now, because I was fortunate to speak with each and every
     one of you, I know each and every one of you has someone
     in your life you love; a sibling, a spouse, a significant other,
     a parent. Each one of you loves somebody.

     What if you were told that your precious one had a life-
     threatening condition and that the only medical protocol
     for that life-threatening condition was a surgery. Now, if
     you’re like me, you’re probably going to ask for a second
     opinion. You might ask for a third opinion. You’d probably
     do research; what is this condition, what are the accepted
     protocols for this condition, what’s the likelihood of
     success, probably go on the internet, do everything you
     can, and if you’re like me, you’re going to go through your
     Rolodex, and everybody that you know who has any
     relationship to medicine you’re going to call them. You’re
     going to talk to them, but at some moment the question is
     going to be called. You are going to have to cut your
     research. Do you allow your loved one to go forward[?] If
     you allow your loved one to go forward with the surgery,
     it’s not because you have moved beyond all doubt. Ladies
     and gentlemen, there are no guarantees in life. If you go


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       forward, it’s because             you    have   moved    beyond       all
       reasonable doubt.

       A reasonable doubt must be a real doubt, ladies and gentlemen.
       It may not be a doubt that is imagined or manufactured to avoid
       carrying out an unpleasant responsibility. You may not find David
       Nam guilty based on a mere suspicion of guilt.               The
       Commonwealth’s burden is to prove David Nam guilty beyond a
       reasonable doubt. If the Commonwealth has met that burden,
       then David Nam is no longer presumed to be innocent and you
       should find him guilty. If on the other hand the Commonwealth
       has not met that burden, then you must find him not guilty.

N.T. Trial, 1/29/10, at 99-101 (emphasis added).

       Nam argues the bolded portion above improperly altered the reasonable

doubt standard. However, when read in context of the entire instruction, the

entire instruction states the law accurately. See Patosky, 656 A.2d at 506

(“a reasonable doubt . . . must be an honest doubt arising out of the evidence

itself, the kind of a doubt that would restrain a reasonable man (or woman)

from   acting     in   a   matter   of   importance    to   himself   (or    herself).”

Commonwealth v. Butler, 272 A.2d 916, 920 (Pa. 1971)). Judge Hughes

used language similar to the standard instruction both before and after using

a hypothetical to explain the concept of reasonable doubt. N.T. Trial, 1/29/10,

at 99,101. Although Judge Hughes’ instruction was personalized, trial judges

are granted a certain degree of latitude in their jury instructions. Wright,

961 A.2d at 145. Judge Hughes stayed within those boundaries.

       As   the    jury    instruction    was    permissible,   Nam’s       underlying

ineffectiveness claim does not have merit. See Lesko, 15 A.3d at 373. Thus,

the PCRA court properly dismissed the petition without an evidentiary hearing.

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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2019




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