J-S71039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STORM E. MASON                             :
                                               :
                       Appellant               :   No. 3278 EDA 2018

             Appeal from the PCRA Order Entered October 16, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000681-2013


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED APRIL 27, 2020

        Storm E. Mason appeals the denial of his request for relief under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Mason

maintains that the PCRA court should have granted his PCRA petition because

he pled and proved his claim of ineffective assistance of counsel. We affirm.

        A jury found Mason guilty of third-degree murder, firearms not to be

carried without a license, carrying firearms on public streets or public property

in Philadelphia, and possessing instruments of crime.1 The facts giving rise to

these convictions are as follows:

           On the night of October 15, 2012, [Mason] and his girlfriend,
           [Reed], went to Big Fella’s Bar . . . in Philadelphia,
           Pennsylvania. When [Mason] entered Big Fell’s Bar, he saw
           a woman that he knew and greeted the woman with a hug.
           [The victim], the nephew of the woman [Mason] hugged,

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1   18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 6108, and 907, respectively.
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         pushed [Mason] and told him not to hug [the victim’s] aunt.
         This upset [Mason] and made him angry.

         Shortly thereafter, [Mason], Reed, and [Mason’s] friend
         Kylif, left the bar. [The victim] and his cousin, . . . , then left
         the bar as well. While everyone was gathered outside,
         [Mason] and Kylif started to “play fight” with each other.
         [Mason] then attempted to get [the victim] to “play fight”
         as well. [Mason] continued to provoke [the victim] until [the
         victim] punched [Mason] fell into the street.

         [Mason] then picked himself up off the ground and told [the
         victim], “Give me a fair one, a fair one.” [The victim] replied,
         “Alright, alright,” and started to walk towards [Mason] in the
         street. [Mason] then reached into his jacket and pulled out
         a gun and started to fire at [the victim]. [The victim] turned
         around and attempted to run after [Mason] opened fire.
         [The victim] was hit by three bullets and fell to the ground.
         [Mason] started to run away after [the victim] fell. However,
         [Mason] stopped, turned back, and returned towards [the
         victim], firing two more bullets at [the victim’s] body.
         [Mason] shot [the victim] a total of five times. . . .

Trial Ct. Op., filed 2/15/19, at 3 (citations to notes of testimony and footnotes

omitted). Reed was also an eyewitness to the murder. See N.T., 6/17/14, at

220.

       Prior to trial, the Commonwealth filed a motion in limine requesting to

admit evidence of a prior domestic abuse incident between Mason and Reed.

The court denied the request, with the caveat that if defense counsel

“open[ed] the door” to the evidence, or if the witness completely denied being

at the murder scene, the court would allow the evidence. N.T., 6/16/14, at

20-21.

       At trial, during his cross-examination of Reed, defense counsel asked

Reed questions about her access to a telephone after the murder. See N.T.,


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6/18/14, at 39, 49. The court concluded that in so doing, counsel had “opened

the door” to the evidence about the prior domestic abuse incident:


          [T]hat trial counsel’s purpose in asking those questions was
          to demonstrate that Reed could have, but failed to, contact
          the police and report [Mason] during these days, and
          therefore permitted the Commonwealth, on redirect
          examination of Reed, to elicit testimony regarding the
          pistol-whipping incident as fair reply to the inference
          created by trial counsel.

Trial Ct. Op. at 5. The prosecution then presented Reed’s testimony about an

incident in which Mason pistol-whipped her.

       The jury ultimately convicted Mason of the above-referenced crimes and

the trial court imposed an aggregate sentence of 20 to 40 years’ incarceration.

We affirmed the judgment of sentence, and our Supreme Court denied

Mason’s petition for allowance of appeal on March 29, 2016. Commonwealth

v. Mason, 2015 WL 6160077 (Pa.Super. Oct. 13, 2015), appeal denied, 136

A.3d 980 (table) (Pa. March 29, 2016).

       Storm filed the instant timely PCRA petition and the PCRA court

appointed counsel who filed an amended PCRA petition.2 The amended petition

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2  Regarding the timeliness of Mason’s PCRA petition, the PCRA court
explained:

          [Mason’s] pro se petition was time-stamped on June 28,
          2017, which would have made his PCRA petition untimely
          by one day. However, in his certificate of service, [Mason]
          noted that he turned the petition over to prison authorities
          on June 18, 2017. Under the prisoner mailbox rule, a



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alleged that trial counsel had rendered ineffective assistance by “opening the

door” to the evidence about the domestic abuse incident. Amended Petition

under Post-Conviction Relief Act, filed 1/19/18, at ¶¶ 9, 10. Following the

Commonwealth’s response to the amended petition, the PCRA court issued

notice of its intent to dismiss the petition without a hearing. See Pa.R.Crim.P.

907. On October 16, 2018, the PCRA court dismissed the petition. This timely

appeal followed.

       Mason raises one issue for our review:

              I.     Did the Post-Conviction Relief Act (PCRA) Court err
                     in denying relief and dismissing the PCRA without
                     holding a hearing, even though [Mason] could have
                     proven that trial counsel was ineffective?

Mason’s Br. at 3.

       “Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court's determination

and whether its decision is free of legal error.” Commonwealth v. Beatty,

207 A.3d 957, 960-61 (Pa.Super. 2019).

       Counsel is presumed to have been effective and thus the burden lies on

the petitioner to plead and prove all of the following: “(1) the underlying

substantive claim has arguable merit; (2) counsel did not have a reasonable

____________________________________________


          document is deemed to be filed on the date that it is placed
          in the hands of prison authorities. See Commonwealth v.
          Wojtaszek, 951 A.2d 1169, 117[0] n.3 (Pa.Super.
          2008).Therefore, [Mason’s] petition was treated as timely.

PCRA Court Opinion, filed 2/15/19, at 1 n.1.

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basis for his or her act or omission; and (3) the petitioner suffered prejudice

as a result of counsel’s deficient performance, ‘that is, a reasonable probability

that but for counsel’s act or omission, the outcome of the proceeding would

have been different.’” Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa.

2018) (citation omitted). Failure to plead or prove any prong of the

ineffectiveness    standard    “will   defeat    an    ineffectiveness    claim.”

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

      Here, we proceed directly to the prejudice prong first because we

conclude that Mason has failed to establish that counsel’s actions prejudiced

him. Mason argues that he sustained prejudice because, but for counsel’s

alleged error, “the jury would not have learned about [Mason’s] prior violent

acts with a weapon.” Mason’s Br. at 10. While we agree that absent counsel’s

actions, the jury would not have learned about the past violent exchange

between Reed and Mason, we do not agree that there is “a reasonable

probability that but for counsel’s act . . ., the outcome of the proceeding would

have been different.” Wholaver, 177 A.3d at 144.

      Here, the Commonwealth presented overwhelming evidence of Mason’s

guilt and his violent nature. Both Reed and another eyewitness testified that

they saw Mason shoot the victim multiple times as the victim ran away. N.T.,

6/17/14, at 205. Their testimony was corroborated by video surveillance

footage and Mason’s own admission at trial that he fired a gun on the night of

the incident, though he claimed that he could not see anything at the time.

N.T., 6/19/14, at 57-59. Further corroboration came from the testimony of

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the medical examiner that the victim’s wounds were consistent with the

eyewitnesses’ accounts.

      Moreover, prior to and after Reed’s testimony about being “pistol

whipped” by Mason, the court gave a limiting instruction to the jury that the

evidence “could not be used to conclude that [Mason] was a violent person.”

TCO at 6.

            THE COURT: All right. Ladies and gentlemen, I'm going to
            admit this testimony strictly to the extent if you believe that
            it bears upon this witness' behavior. You are not to use it
            for any other purpose. You are certainly not permitted to
            use it to conclude that [Mason] was in fact a violent person.
            For this purpose, the only reason for which you may
            consider it is in how it affected the behavior of this witness.
            Okay?

                                          ***

            THE COURT: Okay. I'll direct you, that's enough on that. And
            once again, ladies and gentlemen, it's important you
            understand the limited purpose for which this is being
            admitted, okay. The behavior, the conduct, and the
            believability of this witness is something you have to
            consider and that's the only purpose for which you may
            consider any of this evidence that I just admitted regarding
            what she says happened between her and [Mason] before
            the time of the shooting that's at issue in this case. All right?

N.T. 6/18/14, at 86-87, 88.

      Furthermore, Reed and her mother testified about Mason’s violent

behavior on other occasions, without objection. We thus conclude that Mason

was not prejudiced by counsel’s line of questioning that opened the door to

otherwise excluded evidence. We therefore affirm the denial of his PCRA

petition.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/20




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