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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PAUL BARONE, JR.                           :
                                               :
                        Appellant              :   No. 1528 WDA 2018

             Appeal from the PCRA Order Entered October 1, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0006683-2013


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED OCTOBER 24, 2019

        Paul Barone, Jr. appeals from the order, entered in the Court of Common

Pleas of Allegheny County, dismissing without a hearing his petition filed under

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

careful review, we affirm.

        In the early morning hours of March 3, 2013, Barone left Club Pink with

Travon Fuller.       Barone retrieved a .40 caliber Glock pistol from the glove

compartment of Fuller’s black Audi. Barone then walked to the club parking

lot to find John Scott, a friend who had come with him to the club. While

looking for Scott, Barone noticed people in the parking lot “getting guns out

from under the hood” of a Dodge Intrepid. N.T. Trial, 8/20/15, 102. Barone



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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located Scott and they both returned to Fuller’s vehicle. As they approached

Fuller’s vehicle, Barone exchanged gunfire with unidentified individuals. While

being fired upon, all three fled the area inside Fuller’s vehicle. John Sumpter,

who was sitting in the Intrepid, died from a .40 caliber bullet wound to the

head.

        Barone was charged with criminal homicide,1 and carrying a firearm

without a license.2 At trial, Barone’s counsel argued that Barone was justified

in firing his weapon in self-defense. A jury found Barone guilty of all charges,

and on August 20, 2015, Barone was sentenced to life imprisonment without

the possibility of parole and a concurrent 2-4 year’s imprisonment. After filing

post-sentence motions, Barone timely appealed and this court affirmed his

judgment of sentence on June 21, 2017. Commonwealth v. Barone, 232

WDA 2018 (Pa. Super. filed 6/21/17) (unpublished memorandum). Barone

did not file a petition for allowance of appeal to the Pennsylvania Supreme

Court. On June 18, 2018, Baron filed a counseled PCRA petition, which was

dismissed without a hearing on October 1, 2018. This timely appeal followed.

        Barone’s sole argument on appeal is that the PCRA court improperly

dismissed his petition without a hearing because his trial counsel was

ineffective for failing to request a jury instruction on imperfect self-defense.



____________________________________________


1   18 Pa.C.S.A. § 2501(a).

2   18 Pa.C.S.A. § 6106.

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      There is no absolute right to an evidentiary hearing on a PCRA petition.

Commonwealth v Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). The

PCRA court has discretion to dismiss a petition without a hearing when the

court is satisfied there are no genuine issues concerning any material fact, the

defendant is not entitled to post-conviction collateral relief, and no legitimate

purpose would be served by further proceedings.              Pa.R.Crim.P. 907;

Commonwealth v. Cousar, 154 A.3d 287, 297 (Pa. 2017).

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

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

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

ineffectiveness claim, Barone must establish:

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


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

(1984)).

      Self-defense and imperfect self-defense share many elements. For a

defendant to prevail on a theory of self-defense, there must be evidence that:

1) the defendant reasonably believed he was in imminent danger of death or

serious bodily harm and deadly force was necessary to prevent the harm; 2)

the defendant was free from fault in provoking the situation that ended in

death; and 3) the defendant could not have retreated in complete safety. See

Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012). Imperfect

self-defense is established when the defendant actually, but unreasonably,

believed that deadly force was necessary. Commonwealth v. Son Truong,

36 A.3d 592, 599 (Pa. Super. 2012). However, the defendant must still meet

the other two elements of self-defense. Id.

      Here, Barone has failed to prove that trial counsel was ineffective

because he is unable to show that he suffered prejudice from counsel’s alleged

error. Both self-defense and imperfect self-defense require a showing that

Barone could not retreat safely. See Sepulveda, 55 A.3d at 1124. However,

the evidence at trial showed that Barone had multiple opportunities to retreat

safely. See Trial Court Opinion, 6/29/16, at 12. Thus, the outcome of the

trial would have been the same under an imperfect self-defense theory

because Barone did not retreat when he was able. Therefore, counsel was not

ineffective because his actions did not prejudice Barone.


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     Order affirmed.

     Judge Murray joins this Memorandum.

     Judge Colins files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2019




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