J-S80005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JEMONI LARON GHEE

                         Appellant                   No. 726 MDA 2016


                Appeal from the PCRA Order April 14, 2016
             In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0000065-2013


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 17, 2017

      Jemoni Laron Ghee appeals from the order entered in the Court of

Common Pleas of Franklin County, denying his petition filed pursuant to the

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

careful review, we affirm on the basis of the opinion authored by the

Honorable Angela R. Krom.

      Ghee and his brother, Jelani, were convicted of aggravated assault

stemming from an incident in which the Ghee brothers and the victim,

Clarence Green, stopped for a bathroom break on their drive back to

Franklin County from a casino in Harrisburg.      According to the testimony

adduced at trial, the Ghee brothers choked, punched, hit and kicked Green

and left him bleeding on the side of the road.
J-S80005-16



      The Ghee brothers were both charged with attempted homicide,

aggravated assault, robbery – inflict serious bodily injury, and simple

assault. A joint trial commenced on August 12, 2013, and, on August 15,

2013, the jury acquitted the brothers of all charges except aggravated

assault.   Ghee was sentenced on September 18, 2013, by the Honorable

Douglas W. Herman to a term of imprisonment of 120 to 240 months. Ghee

appealed his judgment of sentence, which was affirmed by this Court on

December 17, 2014.      See Commonwealth v. Ghee, 347 MDA 2014 (Pa.

Super. filed Dec. 17, 2014).

      On October 1, 2015, Ghee filed a pro se PCRA petition.        The court

appointed counsel, who declined to file an amended petition. An evidentiary

hearing was held on February 29, 2015, at which time Ghee and his trial

counsel, Shane Kope, Esquire, testified. By order dated April 15, 2016, the

trial court denied relief. This timely appeal follows, in which Ghee raises the

following issues for our review:

      1. Did the trial court err in denying Mr. Ghee’s request for a new
      trial due to ineffective assistance of trial counsel when trial
      counsel failed to cross-examine and impeach the victim and only
      eyewitness on his pending criminal charges to show a bias and
      motive for lying?

      2. Did the trial court err in denying Mr. Ghee’s request for a new
      trial due to ineffective assistance of trial counsel when trial
      counsel failed to request the jury be instructed on
      justification/self-defense?

Brief of Appellant, at 4.




                                     -2-
J-S80005-16



      Our standard and scope of review for the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.            Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.

      Here, both of Ghee’s appellate claims allege the ineffectiveness of his

trial counsel, Attorney Kope. There has long been a presumption in the law

that counsel acts “within the wide range of reasonable professional

assistance.”    Harrington v. Richter, 131 S.Ct. 770, 787 (2011).                 A

defendant bears the burden of proving otherwise.               Commonwealth v.

Cooper, 941 A.2d 655, 664 (Pa. 2007). The Pennsylvania Supreme Court

has set forth three elements which must all be proven in order to

demonstrate     ineffective   assistance   of   counsel.      Commonwealth        v.

Williams, 863 A.2d 505, 513 (Pa. 2004) (“Failure to satisfy any prong of

the test will defeat an ineffectiveness claim.”).          Specifically, a defendant

must prove that: (1) the underlying claim is of arguable merit; (2) counsel’s

performance lacked a reasonable basis; and (3) the ineffective assistance of

counsel caused him prejudice. Commonwealth v. Pierce, 786 A.2d 203,

213 (Pa. 2001).

      Ghee first asserts that counsel was ineffective for failing to cross-

examine the victim, Green, regarding his pending criminal charges.            Ghee

                                       -3-
J-S80005-16



claims that cross-examination would have revealed bias on the part of the

victim.     In its Pa.R.A.P. 1925(a) opinion, the PCRA court concluded that,

while Ghee satisfied the first two prongs of the ineffectiveness test, he

ultimately failed to demonstrate that, but for Attorney Kope’s failure, the

result of his trial would have been different. The court based that conclusion

on the overwhelming evidence produced at trial in support of the

Commonwealth’s case, which included not only Green’s testimony, but that

of ten other witnesses and nearly 80 exhibits.       Upon review, we conclude

that the PCRA court’s analysis thoroughly and properly disposes of this

issue.     See PCRA Court Opinion, 4/15/16, at 4-9.       Accordingly, Ghee is

entitled to no relief.

         Finally, Ghee asserts that trial counsel was ineffective for failing to

request that the jury be instructed as to justification/self-defense.     Citing

case law holding that “[a] defendant is entitled to an instruction on any

recognized defense which has been requested, which has been made an

issue in the case, and for which there exists evidence sufficient for a

reasonable jury to find in his or her favor,” Commonwealth v. Buksa, 655

A.2d 576, 583 (Pa. Super. 1995), Ghee argues that certain evidence

adduced at trial, in which Green was portrayed as the aggressor, supported

such a charge.

         The PCRA court noted that the defense theory of the case was that the

Ghee brothers and Green engaged in a scuffle, but that the Ghee brothers

left the scene before the most severe of Green’s injuries occurred.        “The

                                       -4-
J-S80005-16



‘gist’ of the defense was that the Ghee brother[s] left the scene and Green

got hit by a car after that.”       PCRA Court Opinion, 4/15/16, at 11.

Accordingly, the court found that a self-defense instruction would have been

wholly at odds with Ghee’s defense, which included testimony from a

forensic pathologist who opined that Green suffered from blunt impact

injuries most consistent with having been run over by a vehicle. See N.T.

Trial, 8/15/13, at 66-95 (testifying, inter alia, that victim’s injuries not

consistent with having been punched or kicked, but consistent with having

been hit by “some kind of mechanical device or application of force by some

kind of powerful object”). As such, the court concluded that counsel had a

reasonable basis for not requesting a justification/self-defense charge. See

PCRA Court Opinion, 4/15/16, at 9-12.       Trial counsel will not be deemed

ineffective for pursuing a particular strategy, so long as the course chosen in

reasonable. See Commonwealth v. Rivers, 786 A.2d 923 (Pa. 2001). We

agree with the PCRA court that counsel had a reasonable basis for declining

to request a self-defense instruction and, as such, cannot be deemed

ineffective.

      In sum, we have reviewed the record and the briefs submitted by the

parties and conclude that Judge Krom thoroughly and correctly disposes of

both issues Ghee raises on appeal. Accordingly, we affirm on the basis of

her well-reasoned opinion and instruct the parties to attach a copy in the

event of further proceedings in this matter.

      Order affirmed.

                                     -5-
J-S80005-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/2017




                          -6-
                                                                             Circulated 12/20/2016 02:25 PM




          IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
          DISTRICT OF PENNSYLVANIA- FRANKLIN COUNTY BRANCH

     Commonwealth of Pennsylvania                       Criminal Action

                    vs.                                 No. CR 65 of 2013

     Jemoni L. Ghee,                                    Judge Angela R. Krom
                Defendant

                           Statement pursuant to Pa.R.A.P. 1925ja)

              Before the Court is Defendant's Notice ofAppeal filed May 4, 2016.

    Defendant challenges this Court's Order of April 15, 2016,' denying Defendant's

    petition for post -conviction relief. Both issues raised by Defendant's Concise

    Statement ofMatters Complained of on Appeal, as well as the procedural history of

    this case, have been thoroughly discussed in the Opinion accompanying the April

    15, 2016, Order.

          This Court is content to rely on its prior writing which has been attached

    hereto for the Superior Court's use. For the reasons carefully described in the

    April 15, 2016 Opinion, Defendant is entitled to no relief. His appeal should be

    denied.




1   The Opinion and Order of Court is dated April 14, 2016, filed April 15, 2016.
      IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
              OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania            Criminal Action

              v.                        No. CR 65 of 2013

Jemoni L. Ghee,
             Defendant                  Honorable Angela R. Krom, J.




                         OPINION AND ORDER OF COURT




Before Kroin, J.
                                                            APR



                                                                       EXHIBIT

                                                                        L
      IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF
                         PENNSYLVANIA-FRANKLIN COUNTY BRANCH

 Commonwealth of Pennsylvania                                           Criminal Action

                   vs.                                                  No. CR 65 of 2013

 Jemoni L. Ghee,                                                        Judge Angela R. Krom
              Defendant

                                                   OPINION
           Before the Court for review is Jemoni L. Ghee's ( "Defendant ") request for relief under

 the Post Conviction Relief Act. For the reasons that follow, Defendant's request for relief is

 denied.

                                      Background/ Procedural History

           Defendant and his brother, Jelani Ghee ("Jelani"),I were charged with Criminal Attempt -

 Criminal Homicide,2 Aggravated Assault,3 Robbery- Inflict Serious Bodily Injury,4 and Simple

Assaults as a result of an incident that occurred on November 7, 2012, According to the victim,

Clarence Green ( "Green "), when the three men stopped for a bathroom break on their way back

to Franklin County from the Hollywood Casino in Harrisburg, Defendant choked and punched

him while Jelani hit and kicked him, then they left him bleeding on the side of the road. N.T.

8/13/13 at 21 -23, Ajoint trial by jury was held on August 12, 2013, through August 15, 2013.

After hearing testimony from several police officers, medical professionals, the man who found

Green on the side of the road, a man who lived near the scene of the crime, the victim, the

victim's stepfather, forensic scientists, and Jelani, the jury found Defendant and Jelani guilty of

Aggravated Assault and not guilty of the remaining charges.

  By Opinion dated February 19, 2016, the Superior Court upheld this Court's denial of Post Conviction Relief to
Co-Defendant, Jelani Ghee. See 1064 MIDA 2015.
2 18 Pa.C.S. § 901(a).

3 18 Pa.C.S. § 2702(a)(I).

4 18 Pa.C.S. § 370I(a)(1)(i).

5 18 Pa.C.S. § 2701(a)(1).
       On September 18, 2013, Defendant was sentenced to a teen of incarceration in a State

Correctional Instihrtion of not less than 120 months to not more than 240 months. On September

30, 2013, Shane Kope, Esquire ( "Kope "), who represented Defendant at trial, filed Post -Sentence

Motions on behalf of Defendant challenging the weight of the evidence and seeking

reconsideration and modification of the sentence. By Opinion and Order dated January 23, 2014,

the Honorable Douglas W. Herman denied Defendant's Post -Sentence Motions. On February

20, 2014, Defendant filed a Notice of Appeal. Thereafter, on December 17, 2014, the Superior

Court affirmed Defendant's judgment of sentence.

       On October       1,   2015, Defendant filed a pro se Post Conviction Relief Act ( "PCRA ")

Petition. Attorney Kristen Nicklas, appointed by the Court to represent Defendant in connection

with his PCRA proceedings, notified this Court on November 25, 2015, that an Amended PCRA

Petition would not be filed. The Commonwealth filed an Answer to the Defendant's pro se

PCRA Petition on December 14, 2015. Thereafter, an evidentiary hearing was held on February

29, 2015. Defendant and Kope testified at the hearing. Written argument has been timely filed

by both Defendant and the Commonwealth. This matter is ready for decision,

                                                 Discussion

       The PCRA was enacted to provide individuals who are convicted of crimes for which

they are innocent, or those serving illegal sentences, with a means to obtain collateral relief. See

42 Pa.C.S.   §   9542. To be entitled to relief, the petitioner must first demonstrate he was

convicted of a crime under the law of Pennsylvania, and that he is currently serving a sentence or

waiting to do so. See 42 Pa.C.S. §9543(a)(1). Second, the petitioner must prove, by        a


preponderance of the evidence, that lus conviction or sentence resulted from one or more of the

enumerated statutory factors. See 42 Pa.C.S. §9543(a)(2). Third, a petitioner must demonstrate

the issues raised under the Act have not been previously litigated or waived, and finally, that the
                                                      2
failure to litigate such issues could not have resulted from a rational, strategic, or tactical

decision by counsel, See id. at §9543(a)(1), (3), (4).

          The ineffective assistance of counsel which so undermined the truth- determining process

that "no reliable adjudication of guilt or innocence could have taken place" is cognizable under

the Act. See 42 Pa,C.S. §9543(a)(2)(ii). The law is clear that counsel is presumed effective and

the defendant bears the burden of proving otherwise, accomplished by satisfying                a   three -prong

performance and prejudice test. See Commonwealth               v.   Martin, 5 A.3d 177, 183 (Pa. 2010);

Commonwealth         v.   Pierce, 786 A.2d 203, 213 (Pa. 2001). First, the petitioner must show the

underlying substantive claim has arguable merit. See            id.   Next, a petitioner must demonstrate

that counsel did not have any reasonable basis for his acts or omissions designed to effectuate the

client's interest. See      id. Finally, a petitioner must demonstrate that actual prejudice resulted

from counsel's inadequate performance. See id. Prejudice is proven where a defendant shows,

".`there is a   reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." See Commonwealth                  v.   Johnson, 966 A.2d 523, 533 (Pa.

2009. "A reasonable probability is a probability that is sufficient to undermine confidence in the

outcome of the proceeding." Commonwealth              v.   Muir, 2015 WL 6507982, at *3 (Pa.Super. 2015)

quoting Commonwealth           v.   Cam Ly, 980 A.2d 61, 73 (Pa. 2009) (internal quotation marks and

citations omitted).

         If the defendant fails to satisfy any one of the three prongs of the test, the claim of

ineffective assistance must be denied, See Pierce, 786 A.2d at 221 -22. The inquiry echoes that

set forth by the United States Supreme Court, requiring both a showing that counsel's

performance was deficient, and that the deficiency was prejudicial. See Strickland v.

Washington, 466 U.S. 668, 687 -91 (1984). Pursuant to the these standards, the Court will

analyze Defendant's claims regarding Kope's representation.
                                                           3
       In his pro se PCRA Petition, Defendant alleges that Kope was ineffective for: I) failing

to cross -examine Green regarding Green's pending criminal charges in Franklin County; and 2)

failing to request a jury instruction on justification/self- defense. PCRA ¶ 6C. Each allegation

will be discussed in turn.



Failure to cross -examine Green regarding pending criminal charges:

       In support   of his argument that Kope was ineffective for failing to cross -examine Green

as to his pending criminal charges, Defendant cites to the Pennsylvania Supreme Court's

decisions in Commonwealth     v.   Evans, 512 A.2d 626 (Pa. 1986) and Commonwealth      v.   Hill, 566

A.2d 252 (Pa. 1989). Both Evans and Hill make it clear that the defense must be permitted to

cross -examine a Commonwealth witness regarding outstanding criminal charges to explore

possible bias in favor of the prosecution,

       Even if the prosecutor has made no promises, either on the present case or on
       other pending criminal matters, the witness may hope for favorable treatment
       from the prosecutor if the witness presently testifies in a way that is helpful to the
       prosecution. And if that possibility exists, the jury should know about it.

Hill, 566 A.2d at 253.

       However, both Evans and Hill are distinguishable from the case at bar in that they arise

from a different procedural posture than the present case. In Evans, the Supreme Court

determined that the trial court erred in refusing to permit cross -examination of the prosecution's

chief witness about whether he had been promised or expected leniency with respect to pending

charges. 512 A.2d 626. Similarly in Hill, the Supreme Court found that it was error for the trial

court to forbid cross -examination of the victim/witness as to his guilty plea entered on an

unrelated matter, even though the victim/witness had not yet been sentenced. 566 A.2d at 253.




                                                  4
 In the case at bar, the trial court did not refuse to permit cross -examination of Green; rather,

 counsel, as a matter of strategy (discussed further below) elected not to do so.

         Interestingly, Defendant's brother and co- defendant, Jelani, raised this very issue in his

 PCRA Petition. In support of his claims, Jelani relied on Commonwealth        v.   Murphy, 591 A.2d

 278 (Pa. 1991) and Commonwealth      v.   Davis, 652 A2d 885 (Pa. Super. 1995). Both the Murphy

 and Davis Courts held that the allegation that counsel was ineffective for failing to question a

 witness regarding possible bias as the result of pending criminal charges was meritorious and it

 was further held that there was no reasonable basis for counsel's failure to do so. In both

 Murphy and Davis, the defendants were found to have suffered prejudice as a result of their trial

 counsel's failure to cross -examine the Commonwealth's witness regarding the bias resulting

from pending criminal charges or juvenile probationary status.

        However, both Murphy and Davis are distinguishable from Defendant's case in

significant ways. In Murphy, the defendant was charged in connection with a shooting death.

Two child witnesses gave vague descriptions of the gunman when they were interviewed a short

time after the shooting; however, the children were re- interviewed four years later and identified

the defendant as the shooter. At the time the children testified at trial, one of them was on

juvenile probation and the other had just completed juvenile probation. 591 A.2d at 278. The

child on juvenile probation was the only eyewitness to the crime, making her testimony crucial to

the case. Id. at 280. Defense counsel never cross -examined the child regarding her juvenile

probationary status in an attempt to show bias, whether based on    a   formal agreement or her

subjective belief that she would receive favorable treatment. Id. The jury ultimately found the

defendant guilty of first degree murder. Id. at 278.

       In Davis, the jury convicted the defendant of attempted rape after hearing both his and the

victim's version of events on the day in question. 652 A.2d 885. As no other witnesses

                                                  5
    corroborated the victim's testimony, the victim was clearly a critical Commonwealth witness.

    Id. The Court reasoned that because the jury had acquitted the defendant of all but one charge,

    the jury did not find the victim's testimony to be "wholly plausible" and further found that

    because evidence of the victim's potential bias "may well have persuaded the jury to completely

    reject the victim's testimony and acquit" the defendant, counsel's failure to inquire into possible

    bias was not harmless error. 652 A.2d at 889.

           In the present case, Defendant testified that, at the time       of the trial, Green liad pending

    criminal charges in the nature of resisting arrest. N.T. 2/29/16 at 8, 9. He further testified that he

    informed Kope that Green had pending criminal charges on at least two occasions.                    Icl.   at 9.

           Based on the guidance of Hill, Evans, Murphy, and Davis, this Court must find that

    Defendant's allegation of ineffective assistance of counsel for failure to cross examine Green

regarding his pending criminal charge has merit. Defendant has met his burden with respect to

the first prong of the three prong test. However, the inquiry does not end there.

           According to Defendant, Kope did not ask the victim about his pending criminal charges

because he did not want to be too hard on the victim in front of the jury.6 N.T. 2/29/16 at 10. On

cross -examination, Defendant conceded that he was aware that Green had reached                     a    plea

agreement with an agreed -to sentence as to his pending charges prior to Defendant's trial. N.T.

2/29/16 at 11. Kope agreed that he did not cross -examine Green at trial regarding his then -

pending criminal charges. N.T. 2/29/16 at 13. Counsel believed that he did look into Green's

pending charges, but also believed that Green had already entered a plea and may have been

sentenced. Id. at 14. He fitrther testified that he didn't find it necessary to cross -examine Green

as to the charges to show bias because there would not have been any. Id.                  Kope also agreed



6
 The record is clear that neither Attorney Kope, nor Jelani's attorney questioned the victim regarding his pending
criminal charges. Rather, Green was cross -examined at length regarding prior inconsistent statements.
                                                         6
 that the Commonwealth's evidence at trial consisted of more than just Green's testimony; the

 Commonwealth had ample evidence to support its case. N.T. 2/29/16 at 16. The record reveals

 that Counsel elected to cross -examine Green at length about other issues.

           From the evidence presented at the PCRA hearing, Kope was aware of Green's pending

 charges and elected not to cross-examine him on that issue, While Kope did not wish to be too

 hard on Green in front of the jury, he clearly misunderstood the implications of Green's pending

 charges   - even if a plea agreement had been negotiated and entered and Green was simply
 awaiting sentence. Kope's assertion that that he did not cross -examine Green regarding possible

 bias "because there would not have been ally" demonstrates Kope's lack of familiarity with the

 guidance provided by cases like Evans and Hill. Accordingly, this Court must find that despite

Kope's strategic reasons for failing to cross -examine Green regarding pending charges, his

reasons were not reasonable. Defendant has established the second prong of the three prong test.

        Despite this Court's finding that Kope's reasons for failing to cross -examine Green were

not reasonable, this Court cannot find that Defendant suffered prejudice as a result. This finding

is based on a careful review    of the record and the overwhelming evidence produced at trial in

support of the Commonwealth's case. Further, the Court relies on the discussion of the evidence

by the Honorable (now) Senior Judge Douglas W, Herman in his Opinion and Order of Court of

January 23, 2014, disposing of Defendant's Post -Sentence Motion.?

        Green testified as to the incident which began on November 7, 2012, with Green and the

Ghee brothers traveling from Franklin County to the Hollywood Casino in Dauphin County.

Green testified at length regarding an assault at the hands of Defendant and Jelani which left hint

with considerable injuries. N.T. 8/13/13 at 4 -81. In addition to Green's testimony the jury heard

from at least ten other witnesses and viewed nearly 80 exhibits, The jury considered surveillance


 This matter was reassigned to the undersigned upon the retirement of the Honorable Douglas W. Herman.
                                                      7
footage from Hollywood Casino, which placed Defendant, Jelani, and Green together on the

night of the assault. Comm. Ex. 68. The Commonwealth offered the testimony of Troopers

William Dubbs and Michael Dick regarding the physical evidence found at the crime scene. N.T.

8/12/13 at 33; N.T. 8/14/13 at 129.   The jury heard from the passing motorist who found Green

staggering on the side of the road, wearing nothing but his boxer shorts and a sock, and bleeding

from his nose and mouth. N.T. 8/12/13 at    15 -28.   The jury viewed photographs of the area

where the victim was found which depicted blood and clothing. Comm. Exs. 62 -67, 69 -72. The

jury heard from the trauma physician who treated Green at York Hospital that Green suffered

from abrasions, lacerations, a fractured nasal bone,   a   fractured hyoid bone, fractured ribs, and a

severe liver injury. N.T. 8/13/13 at 90 -91. The trauma physician explained that the grade -five

liver injury was caused by blunt force trauma rather than a penetrating trauma, and the hyoid

bone (a small bone in the neck) fracture was the result of being strangled or struck. N.T. 8/13/13

at 94 -95. The jury considered photos of Green's injuries. Comm. Exs. 1 -5, 54 -57.

       Pennsylvania State Police Troopers Ronald Taylor and Michael Dick testified about

finding trash bags containing Defendant's and Jelani's clothing worn on the day of the assault in

the dumpster near the brothers' townhome. N.T. 8/13/13 at 125, 162; N.T. 8/15/13 at 38 -39.

The Commonwealth called a forensic DNA scientist employed by the Pennsylvania State Police

DNA Laboratory who testified that Green's blood was identified on Jelani's sweatshirt. N.T.

8/14/13 at 123. Further, Pennsylvania State Police Corporal Paul McMullen testified regarding

the execution of search warrants for both Defendant's and Jelani's person at the time of their

arrest and advised the jury that Jelani had injuries consistent with being involved in an assault.

N.T. 8/14/13 at 53 -56. The corporal further testified that Defendant had injuries to his right hand

and scratches on his chest and shoulder area. N.T. 8/14/13 at 55 -56.



                                                  8
            Jelani testified that he fought with Green on the night of November 7, 2012. N.T.

    8/15/13 at 32 -36. In his testimony, Jelani also implicated Defendant in the altercation with

    Green. Id.

            In Jelani's appeal to the Superior Court following the denial            of post -conviction relief by
    this Court, the Superior Court agreed that Jelani had not satisfied the prejudice prong of the

    ineffectiveness test based on the overwhelming evidence produced against him at trial.                  8



    Commonwealth     v.   Jelani   Q. Ghee,   1064 MDA 2015 at      8   (Pa. Super. Feb. 19, 2016).

           The Court cannot find that Defendant was prejudiced by Attorney Kope's failure to

    cross -examine Green regarding his pending criminal charges as evidence from numerous sources

    corroborated Green's testimony.       See Commonwealth y.           Gentile, 640 A.2d 1309, 1314 (Pa.

    Super. 1994). Considering the overwhelming evidence against Defendant independent of

    Green's testimony at trial, Defendant has not demonstrated that, but for Kope's failure, the result

of the proceedings would have been different. Therefore, Defendant                   is not entitled to relief on

    the basis that Kope was ineffective for failing to cross -examine Green regarding his pending

charges.



Failure to request jnty instruction on justification/self-defense

           Defendant next claims that Kope was ineffective for failing to request that the jury be

instructed on justification/self- defense. This Court disagrees.

           "The use of force upon or toward another person is justifiable when the actor believes

that such force is immediately necessary for the purpose of protecting himself against the use of

unlawful force by such other person on the present occasion." 18 Pa.C.S.A. §505(a). The law is

s
  The Superior Court further held, "Accordingly, we find that because [Jelani] did not call trial counsel as a witness
at the PCRA hearing, he failed to establish that trial counsel lacked a reasonable basis for his actions."
Commonwealth v. Jelani Q. Ghee, 1064 MDA 2015 at 1.     1




                                                            9
well- settled that a court must instruct the jury on self-defense when requested if the jury would

have a possible evidentiary basis for finding self-defense, Commonwealth         y,   Brown, 421 A,2d

660, 662 (Pa. 1980). Evidence in support of a claim of self-defense can come from whatever

source. Id. In reviewing the record to determine if a possible evidentiary basis exists for a jury

finding self-defense, the evidence must be viewed "in a posture most favorable to [appellee]."

Commonwealth     v.   Butler, 533 A.2d 992, 993 (Pa. 1987).

Three conditions must be present to successfully raise self-defense at trial:

        [I]t must be shown that (a) the [actor] was free from fault in provoking or
        continuing the difficulty which resulted in the [injury]; (b) that the [actor] must
        have reasonably believed that he was in imminent danger of death or great bodily
        harm, and that there was a necessity to use such force to save himself therefrom;
        and (c) the [actor] did not violate any duty to retreat or to avoid the danger.

Butler, 533 A.2d at 993 (citations omitted). If self -defense is raised, it becomes the

Commonwealth's burden to prove, beyond a reasonable doubt, that the defendant's act was not

justifiable self-defense, Commonwealth      v.   McClendon, 874 A.2d 1223 (Pa. Super. 2005). The

Commonwealth may meet its burden by establishing:

             accused did not reasonably believe that he was in danger of death or serious
        1) the
       bodily injury; or 2) the accused provoked or continued the use of force; or 3) the
       accused had a duty to retreat and the retreat was possible with complete safety.

McClendon, 874 A.2d at 1230.

       Review of the record indicates that Jelani testified as to having engaged in       a   physical

altercation with Green after Green struck Jelani in the head with what felt like a punch while

Jelani was driving. N.T. 8/15/13 at 30, Jelani explained that Green had become agitated because

he thought Defendant had put a pill in Green's beer. N.T. 8/15/13 at 29, Jelani testified, "I

parked and we all jumped out of the car and he came running around the back of the car at me

with his hands up so I hit him twice." N.T. 8/15/13 at    31   (emphasis added). After that, Jelani

and Green started wrestling. N.T. 8/15/13 at 32. According to Jelani's testimony, Defendant
                                                    ru
attempted to break up the fight; however, when he separated Green and Jelani, Green punched

Defendant in the ear, Defendant and Green "began tussling in the bushes and [Green] picked

[Defendant] and slanuned hint" N.T. 8/15/13 at 32, To get Green off of Defendant, Jelani

punched him three more time in the face. Id. Jelani then got Green by the neck in a choke hold,

trying to keep him off Defendant. N.T. 8/15/13 at 33 -34. The brothers then ran for the car and

left Green on the side of the road. N.T. 8/15/13 at 34. Defendant did not testify at trial.

       At the evidentiary hearing, Defendant did not offer testimony as to this claim. Kope did

not recall discussing a self-defense strategy with Defendant. N.T. 2/29/16 at 14. The defense

strategy at trial was that Defendant had not injured Green in the manner in which he was actually

injured. Id. "I think they had admitted to getting into some scuffle with [Green] on the side of        a


road, after [Green] had assaulted [ Jelani], but that they had left the scene without the amount of

injury that [Green] had suffered. [...] So, I don't believe self-defense was ever part of the trial

strategy," N.T. 2/29/16 14 -15. However, Kope did recall Jelani's testimony that Green had

attacked him first in the car. N.T. 2/29/16 at 15.

       On cross -examination, Kope agreed that the defense theory of the case was that the Ghee

brothers and Green got into a "scuffle," but that Defendant (and his brother) left before the

severe injuries to Green occurred. N.T. 2/29/16 at 17. The "gist" of the defense was that the

Ghee brother left the scene and Green got hit by a car after that. N.T. 2/29/16 at 17 -18. In fact,

the defense offered the testimony of an expert witness which suggested that Green's injuries

were consistent with being struck by a vehicle. N.T. 2/29/16 at 17.

       A review   of the record corroborates Kope's recollection of the defense strategy    at trial.

Dr. Jonathan Arden, a physician and forensic pathologist testified on behalf of the defense. Dr.

Arden opined, after review of the evidence including Green's medical records from York

Hospital, photographs of Green, and Green's imaging studies, that Green suffered blunt impact
                                                  11
injuries. N.T. 8/15/13 at 67 -68. He further testified, including ample justification for his

conclusions, that Green's injuries were most constituent with being run over by a vehicle. N.T.

8/15/13 at 86, 94.

        A defense of justification/self- defense would have required that Defendant essentially

admit that he caused the injuries suffered by Green, but assert that his actions were justified

based on his fear of injury to himself (or perhaps to his brother   - but he   has not suggested a

defense of others instruction should have been given). Such a defense would have been wholly

inconsistent with the expert testimony of Dr. Arden as to his opinion of the source of the blunt

impact trauma suffered by Green. Neither Defendant nor Jelani admitted running Green over

with a motor vehicle. Accordingly, Kope had a reasonable basis for his failure to request that the

jury be instructed on justification/self- defense.

        An appropriate Order of Court follows.




                                                     12
   IN THE COURT OF COMMON PLEAS OF THE 39Tí' JUDICIAL DISTRICT OF
              PENNSYLVANIA-FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania                          Criminal Action

              vs.                                     No. CR 65 of 2013

Jemoni Q. Ghee,                                       Judge Angela R. Krom
              Defendant

                                    ORDER OF COURT

       NOW THIS `I.  I   day
                           of April, 2016, upon review and consideration of Defendant's
PCRA Petition, the Commonwealth's response, the evidence of record, the written arguments of
counsel, and the law;

       IT IS HEREBY ORDERED that Defendant's PCRA Petition is DENIED.

       IT IS FURTHER ORDERED that pursuant to Pennsylvania Rule of Criminal
Procedure 908(E), Defendant, Jemoni Ghee, is hereby advised:

       (1) You have a right to appeal the decision   of this Court within thirty (30) days of the
           date of this order.

       (2) You have the right to assistance of counsel in preparation   of the appeal.

       (3) If you cannot afford to pay an attorney to represent you in an appeal, you have the
           right to a court- appointed attorney and to be excused from the cost of filing and
           perfecting the appeal.

        Pursuant to the requirements of Pa. R.Gim,P. 114 (B)(1), (2) and (C)(1), (2), the Clerk
shall promptly serve this Order or court notice on each parry's attorney, or the parry if
unrepresented; and shall promptly make docket entries containing the date of receipt in the
Clerk's office of the Order or court notice; the date appearing on the Order or court notice; and
the date and manner of service of the Order or court notice.

                                                      By the Court,




ADA Laura J. Kerstetter, Esq.
Kristen Nicklas, Esq., Counsel for Defendant
Jemoni Ghee, Defendant                                                                        EXHIBIT

                                                                                         1
