J-S49026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

GREGORY SMITH

                            Appellant                 No. 1767 WDA 2016


              Appeal from the PCRA Order Dated October 25, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015978-2012

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 15, 2017

        Pro se Appellant Gregory Smith appeals from the order dismissing his

first Post Conviction Relief Act (“PCRA”)1 petition. We affirm.

        We state the facts and procedural history as set forth by a prior panel

of this Court, which resolved Appellant’s direct appeal:

              The evidence adduced at trial was based heavily on the
        testimony of James Upshaw. Mr. Upshaw testified that he was a
        friend of the victim, Jacquae Pascal. Mr. Upshaw testified that,
        on July 6, 2012, he had made plans to meet Mr. Pascal at the
        Team Mozzi barbershop in the Hill District area of the City of
        Pittsburgh to get haircuts together. Mr. Upshaw explained that
        July 6th was Mr. Pascal’s birthday and they were going to hang
        out for a period of time on that day. Mr. Upshaw testified that
        he brought his four year-old son along to get a haircut. Mr.
        Upshaw, his son and Mr. Pascal met at the barbershop to get
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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     haircuts. When Mr. Upshaw arrived at the barbershop, there
     were others in the barbershop waiting to get a haircut. Most of
     the customers were discussing basketball. [Appellant] was in the
     barber’s chair. Mr. Upshaw testified that he had known
     [Appellant] for a number of years.

            Mr. Upshaw testified that [Appellant] got his haircut and
     left the barbershop. Mr. Upshaw was under the impression that
     [Appellant] left to go to his girlfriend’s house.    [Appellant]
     shortly returned and remained outside the barbershop. While
     Mr. Upshaw and his son were waiting their turn for a haircut, Mr.
     Upshaw’s son advised Mr. Upshaw that he was thirsty and asked
     if he could get some water due to the hot temperatures inside
     the barbershop. Mr. Upshaw agreed to purchase a bottle of
     water for his son. Mr. Pascal indicated he would go with Mr.
     Upshaw and his son to get something to drink. The three of
     them left the barbershop and crossed the street on their way to
     “Juan’s”, a local convenience store. As they crossed the street,
     Mr. Upshaw saw [Appellant] come up behind the victim and
     shoot him multiple times with a chrome revolver. Mr. Upshaw
     testified he screamed at [Appellant] and asked him “why would
     you do this, what is wrong with you?”

           Immediately after the shooting, Mr. Upshaw saw
     [Appellant] run into his girlfriend’s residence. At that point, Mr.
     Upshaw left the scene with his son and went to his mother’s
     house. He called Mr. Pascal’s girlfriend and told her what
     happened. He did not, however, inform the police what
     happened at that time. Because [Appellant] was not in custody,
     Mr. Upshaw feared for his safety and kept what he knew to
     himself. For some time, he did not contact the police about what
     occurred. He later agreed to provide details of the shooting but
     only after his family was placed into the witness protection
     program.

           City of Pittsburgh Police Officer Matthew O’Brien responded
     to the scene. The shooting occurred near the intersection of
     Center Avenue and Kirkpatrick Street at approximately 2:00
     p.m.    Upon arriving at the scene, he canvassed the area
     attempting to locate any witnesses to the shooting. Despite the
     presence of many people at the scene, nobody was willing to
     discuss the shooting with him. There were no bullet casings
     found at the scene. The absence of casings was consistent with
     use of a revolver to commit the shooting.

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           Homicide detectives were dispatched to the scene.
     Through the course of their investigation, they were informed
     that a person known on the street as “Pretty” may have been
     responsible for the shooting. It was learned that [Appellant]’s
     nickname was “Pretty”. Detectives then sent out word within the
     police department that they were looking for [Appellant].

            Later in the evening, on the night of the shooting,
     Pittsburgh Police Officers pulled over a vehicle in the South Side
     section of the City of Pittsburgh that was involved in a hit and
     run. [Appellant] was inside the vehicle when the responding
     officers stopped the vehicle.       When the officers identified
     [Appellant], they contacted homicide detectives to advise that
     they had [Appellant] in custody.

           Homicide detective Thomas Leheny interviewed [Appellant]
     on the night of the shooting. Detective Leheny informed
     [Appellant] that he did not have to speak with the detectives.
     Detective Leheny did advise [Appellant] that he was not under
     arrest. [Appellant] agreed to speak with Detective Leheny.
     [Appellant] told Detective Leheny that prior to the shooting he
     was with a girl in the West End of Pittsburgh at the time of the
     shooting. [Appellant], however, could not provide a name or
     phone number for the girl nor could he provide an address for
     the girl.

           [Appellant] then told Detective Leheny that he was driving
     through the Hill District talking on his cell phone when the
     murder occurred. Detective Leheny had not advised [Appellant]
     where the murder occurred. [Appellant] verbally consented to a
     gunshot residue test of his clothing.       Detectives obtained
     [Appellant]’s t-shirt for processing.    Testing confirmed that
     gunshot residue was present on the front of the t-shirt. After
     this was done, Detective Leheny continued to speak with
     [Appellant]. At this point, [Appellant] put his head down and
     told Detective Leheny that he “wasn’t right in the head” and he
     was prone to sudden bursts of anger since he was a kid.
     [Appellant] told Detective Leheny that he didn’t want to talk
     anymore and asked if he was free to leave. [Appellant] then left
     the police station.

             An arrest warrant was issued for [Appellant] on August 30,
     2012.      [Appellant] could not be located.      Officer Matthew

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     McCarthy testified that he was on patrol on November 7, 2013
     when he conducted a traffic stop of a vehicle driven by Johnny
     Rutherford for speeding. Once the vehicle was pulled over, the
     front seat passenger, [Appellant]’s brother, quickly exited the
     vehicle.    [Appellant], who was the back seat passenger,
     attempted to get out of the vehicle by climbing over the front
     passenger seat. Officers quickly secured the vehicle. Upon
     being asked for identification, [Appellant] gave a false name and
     date of birth. He provided an age that was not possible based
     on the date of birth he provided. Because of his false answers,
     he was placed into custody.        [Appellant] was subsequently
     identified and arrested for the homicide of Mr. Pascal.

          Amber Traylor testified that she was driving in the area.
     As she was driving on Kirkpatrick Street, she heard loud noises.
     She observed the shooting in her rearview mirror. She saw
     three people standing outside the barbershop and she saw
     another person shooting at a person lying on the street. She
     was not able to provide detailed descriptions of any of the
     persons she observed at the scene of the shooting.

           The medical examiner testified in this case that the cause
     of Mr. Pascal’s death was multiple gunshot wounds to his trunk
     and extremities. The manner of death was homicide. Mr. Pascal
     suffered six total gunshot wounds. Three of the gunshot wounds
     were to his back. The first wound entered the middle of his back
     and pierced his pulmonary vein and the heart. Mr. Pascal
     sustained other gunshot wounds to his buttocks, his right
     shoulder, his right upper arm and to the back of his hand.

Commonwealth v. Smith, 2015 WL 6675474, at *1-*3 (Pa. Super., Aug.

21, 2015) (internal ellipses, brackets, formatting, citations, and footnotes

omitted), appeal denied, 128 A.3d 220 (Pa., Dec. 16, 2015).

     Appellant was charged by information, as follows:

     The actor intentionally, knowingly, recklessly or negligently
     caused the death of Jaquae Pascal another human being, in
     violation of Section 2501 (a) of the Pennsylvania Crimes Code,
     Act of December 6, 1972, 18 Pa. C.S. §2501(a), as amended.




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Crim. Information, 7/6/12.          Our prior opinion discussed the subsequent

procedural history:

             Following his arrest, on February 11, 2013, [Appellant]
       filed a motion to suppress physical evidence and statements,
       arguing, inter alia, that the police conducted a custodial
       interrogation in the absence of Miranda warnings and he did not
       consent to speak with the officers or to submit to a gun-shot
       residue test. A suppression hearing was held on April 29, 2013.
       On August 20, 2013, the court denied [Appellant’s] motion to
       suppress with respect to the physical evidence, and granted in
       part and denied in part his motion as to his statements.

             [Appellant’s] first jury trial was held September 30, 2013
       to October 3, 2013, but ended in a mistrial. His second jury trial
       began on January 13, 2014. Two days later, the jury convicted
       [Appellant] of first-degree murder. The court then sentenced
       [Appellant] to life imprisonment without the possibility of parole
       for the murder conviction. On January 27, 2014, [Appellant]
       filed a post-sentence motion challenging the weight of the
       evidence and requesting a new trial. The court denied his
       motion on February 20, 2014.

Smith, 2015 WL 6675474, at *3 (footnotes omitted). This Court affirmed,

and our Supreme Court denied Appellant’s petition for allowance of appeal

on December 16, 2015.

       The PCRA court docketed Appellant’s first PCRA petition on June 4,

2016. His petition raised, among other issues, a Batson2 claim. The PCRA

court appointed counsel, who filed a petition to withdraw contending that

____________________________________________
2
  Batson v. Kentucky, 476 U.S. 79 (1986). “In Batson, the United States
Supreme Court reiterated that a defendant is denied equal protection of the
law when the government ‘puts him on trial before a jury from which
members of his race have been purposefully excluded.’” Commonwealth
v. Jones, 951 A.2d 294, 298-99 (Pa. 2008) (citation omitted).



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Appellant’s Batson claim, among other issues, lacked merit. On October 4,

2016, the court issued an order that simultaneously granted counsel’s

petition to withdraw and notified Appellant of the court’s intention to dismiss

his PCRA petition pursuant to Pa.R.Crim.P. 907.

      According to the PCRA court, Appellant filed an objection to counsel’s

petition to withdraw, which raised three claims: (1) the information was

defective because it contained only a general charge of homicide; (2) the

court violated the sentencing code by sentencing him to life imprisonment

without parole; and (3) trial counsel was ineffective for not raising a Batson

claim during jury selection.    PCRA Ct. Op., 1/17/17, at 2.        Appellant’s

objection, however, is not in the certified record transmitted to this Court.

      The PCRA court dismissed Appellant’s petition on October 25, 2016,

and Appellant timely appealed, raising the following issues, which we set

forth verbatim:

      1. Was Appellant’s bill of information-indictment, facially
      defective pursuant to Pa. Rule of Criminal Procedure 560(B)(5)?

      2. Did the trial court err in proceeding to trial upon a defective
      information?

      3. Did the trial court pronounce judgment and sentence upon
      Appellant on a specific crimes code violation not contained in the
      bill of information?

      4. Did the trial court order the bill of information offense
      originally charged to be amended, after the imposition of
      sentence?

      5. Did the trial court deviate from sentencing procedures set out
      in the sentencing code at 42 Pa.C.S. sub. sec. 9711?

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      6. Whether or not the state or defense didn’t object to
      proceeding with immediate sentencing, what authority did the
      court have from deviating from sentencing procedure set out for
      first degree murder at 42 Pa.C.S. sub. sec. 9711, and if this was
      not a death qualified case, what authority is stated in said
      procedure at 42 Pa.C.S. sub. sec. §9711, that permits automatic
      imposition of sentence of life without parole?

      7. Sentencing procedures for conviction of first degree murder,
      under statutory law, at 42 Pa.C.S. sub. sec. 9711, are only for
      death qualified and pursued cases, what other statute authorizes
      mandatory life without parole for a conviction of first degree
      murder, 18 Pa.C.S. sub. sec. 1102(a)(i), and if no other statute
      exists, how was defendant’s jury instructed on first degree
      murder when it was not a death penalty case, and no statutory
      penalty exists for the court to access for imposition of any
      sentence thereafter, under statutory law?

      8. P.C.R.A. counsel did not meet individual Finley requisites to
      show no pattern of exclusion of prospective jurors county-wide,
      as alleged, but merely spoke with trial counsel whom believed a
      Batson claim didn’t occur and took her on her word, and
      showed no individual investigation steps per Finley?

Appellant’s Brief at iii-iv.

      “Preliminarily, we recognize that in reviewing the propriety of an order

granting or denying PCRA relief, this Court is limited to ascertaining whether

the evidence supports the determination of the PCRA court and whether the

ruling is free of legal error.” Commonwealth v. Andrews, 158 A.3d 1260,

1262-63 (Pa. Super. 2017).

      Appellant’s first four issues concern an allegedly defective information.

He argues that the information lacked sufficient specificity and thus gave the

Commonwealth free reign to pursue any degree of homicide. For his next

three issues, Appellant argues that the court lacked authority to impose a

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sentence   of   mandatory   life   imprisonment   without   parole.   Because

Appellant’s brief does not present an argument regarding his last issue, we

conclude Appellant has waived it.     See Commonwealth v. Phillips, 141

A.3d 512, 522 (Pa. Super.), appeal denied, 161 A.3d 796 (Pa. 2016).

      We need not address whether any of Appellant’s issues are cognizable

under the PCRA, or whether Appellant actually filed a response in opposition

to the Rule 907 notice, because none of his issues have merit. After careful

review of the parties’ briefs, the record, and the decision of the Honorable

Anthony M. Mariani, we affirm on the basis of the PCRA court’s decision.

PCRA Ct. Op. at 3-4 (holding an information charging criminal homicide

sufficiently placed Appellant on notice, and that for a conviction for first-

degree murder, mandatory sentence of life imprisonment without parole was

required by 18 Pa.C.S. § 1102(a)). Because the PCRA court did not err, we

affirm the order dismissing Appellant’s first PCRA petition. The parties are

instructed to attach a copy of the PCRA court’s decision to any pleadings that

reference it.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2017

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