J-S14036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
PENNSYLVANIA                            :        PENNSYLVANIA
                                        :
                                        :
             v.                         :
                                        :
                                        :
PHILLIP MULLIN                          :
                                        :   No. 1458 EDA 2017
                   Appellant            :

                Appeal from the PCRA Order April 11, 2017
  In the Court of Common Pleas of Montgomery County Criminal Division
                    at No(s): CP-46-CR-0000115-2012


BEFORE:    OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                             FILED APRIL 16, 2018

      Appellant, Phillip Mullin, appeals the order entered April 11, 2017,

denying his first petition for collateral relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The relevant facts . . . are as follows. On December 23, 2011,
      Appellant, Sean McGonagle (“Victim”) and Dennis McGonagle
      (“Victim’s Father”) were at the Black Horse Tavern in
      Montgomery County. All three were regulars at the bar and
      acquaintances. A verbal altercation ensued between Appellant
      and Victim’s Father in which Appellant stated Victim’s Father,
      Victim, and Victim’s girlfriend were all crazy, that Victim was a
      “punk and a pussy,” and that he would “kick [Victim’s] ass” and
      “would have stuck a knife in [Victim’s] heart.” Victim’s Father
      shoved Appellant and bartenders stopped serving both of them
      and broke up the fight. They left separately, Appellant without
      paying his tab. Victim stayed at the bar. After getting a call
      from the cook to come pay his tab, Appellant returned.
      Appellant tried to get a seat close to Victim, but customers
      intervened, and the bartender would not serve Appellant.
      Eventually, Appellant sat next to Victim and offered to buy him a
      drink, which Victim accepted.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14036-18


      When Victim left to walk his friend to her car, Appellant followed
      him in an “abrupt and hurried” manner. In the parking lot,
      Appellant tested the taser that was in his pocket and pointed it
      at Victim and his friend. After the friend departed, Appellant
      pointed the taser at Victim’s chest. Victim indicated that if
      Appellant tased him, he would “kick [Appellant’s] ass.”
      Appellant shot the taser and the prongs hit Victim’s leg, but the
      electrical current did not deploy.       Victim began punching
      Appellant repeatedly and both men fell on the ground with Victim
      on top. During the fight, Appellant held the taser in one hand
      and kept the other in his pocket which held the .36 caliber gun.
      Appellant shot Victim in the chest.

      An off-duty emergency medical technician who was in the
      parking lot tended to Victim, who was soon rushed to the
      hospital and is now paraplegic. Police apprehended Appellant
      from his home after a SWAT team intervened and administered
      18 canisters of tear gas. All of this information was submitted to
      a jury in the form of eyewitness testimony and video
      surveillance.

Commonwealth v. Mullin, 120 A.3d 1066, No. 535 EDA 2014, 2015 WL

7432849, at *1 (Pa. Super. Mar. 31, 2015) (unpublished memorandum)

(citations to the record omitted).

      In February 2013, Appellant had a jury trial, during which defense

counsel contended that Appellant’s choice to shoot the Victim was justified,

because the Victim was beating Appellant when Appellant fired his gun.

During closing argument, Appellant’s trial counsel argued that Appellant shot

the Victim out of fear for his life and thus acted in self-defense. Notes of

Testimony (N. T.), 2/13/13, at 55-57. During the Commonwealth’s closing

argument, the prosecution countered: “You have no evidence, none before

you that [Appellant] was in any fear right there at that moment.” Id. at 87.




                                     -2-
J-S14036-18



       Appellant was convicted of aggravated assault causing serious bodily

injury, aggravated assault with a firearm, possessing instruments of crime,

firearms not to be carried without a license, recklessly endangering another

person, and resisting arrest.1          After sentencing, Appellant filed a direct

appeal, and this Court affirmed Appellant’s judgment of sentence in March

2015. Commonwealth v. Mullin, 120 A.3d 1066, No. 535 EDA 2014, 2015

WL 7432849 (Pa. Super. Mar. 31, 2015) (unpublished memorandum).                 In

June 2015, Appellant filed a petition for allowance of appeal with the

Supreme Court of Pennsylvania, which was denied in September 2015.

Commonwealth v. Mullin, 124 A.3d 309 (Pa. 2015).

       In January 2016, Appellant timely filed a counseled PCRA petition,

asserting ineffective assistance of counsel.        In February 2017, the PCRA

court held an evidentiary hearing. During the hearing, trial counsel testified

that he recommended that Appellant not testify, because he feared that

Appellant would be cross-examined in a way that would hurt the case. N. T.,

2/10/17, at 7. Trial counsel continued that, in his opinion, if Appellant “had

testified he would have been convicted of everything in five minutes. . . .

[b]ecause he would have made a horrendous witness.”              Id. at 11.   Trial

counsel explained:

____________________________________________


1 18 Pa.C.S. §§ 2702(a)(1), 2702(a)(4), 907(b), 6106(a)(1), 2705, and
5104, respectively. Appellant was found not guilty of attempted murder of
the first degree.



                                           -3-
J-S14036-18


      [Appellant] suffered a very, very severe head injury when he
      was [a] kid. I think it affects the way he relates to other people,
      it affects the way he speaks and that jury wouldn’t know him the
      way I do and they would have taken that for, as many people
      do, hostility, anger.

      He has a difficult time relating to other people.       By “relating,”
      I mean communicating.

Id.   Additionally, trial counsel testified that, after the Commonwealth had

finished its closing argument, he requested a sidebar and objected to the

Commonwealth’s statements during its closing that there was no evidence

that Appellant was afraid. Id. at 17-18. Trial counsel did not know why the

discussion during this sidebar was not included in the notes of testimony.

      In April 2017, the trial court denied Appellant’s PCRA petition.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The court issued a responsive opinion.

      Appellant raises the following issues for our review:

      Was the Appellant denied effective assistance of trial counsel due
      to

         A. The failure to object to flawed jury instructions;

         B. The failure to [object to] prosecutorial misconduct;

         C. The failure to call the Appellant to testify; and

         D. The failure to object to an excessive sentence imposed
         without a statement of reasons?

Appellant’s Brief at 3.

      As a preliminary matter, we note that Appellant did not include any

claim that trial counsel was ineffective for failing to challenge his sentence in

his statement of errors complained of on appeal. Appellant hence has failed


                                      -4-
J-S14036-18



to preserve this issue for appeal.          See Pa.R.A.P. 1925(b)(4)(ii) (“The

Statement shall concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for

the judge.”); In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013) (appellant’s

concise statement of matters complained of on appeal must properly specify

error or errors to be addressed on appeal); Tucker v. R.M. Tours, 939 A.2d

343, 346 (Pa. Super. 2007).

      In reviewing an appeal from the denial of 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, 1263 (Pa. Super. 2017)

(citation omitted).

      Here, Appellant contends that his trial counsel was ineffective.

Generally, to obtain relief on a claim of ineffective assistance of counsel, a

petitioner must plead and prove that (1) the underlying claim is of arguable

merit; (2) counsel’s performance lacked a reasonable basis; and (3) the

ineffectiveness of counsel caused him prejudice.             Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987). If a petitioner fails to prove by a

preponderance of the evidence any of the Pierce prongs, 527 A.2d at 975,

the court need not address the remaining prongs.              Commonwealth v.

Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009).




                                      -5-
J-S14036-18


                              Jury Instruction

     Appellant asserts that trial counsel was ineffective for failing to request

an instruction informing the jury that an imperfect justification defense

would eliminate the mens rea necessary to support a conviction for

aggravated assault. Appellant’s Brief at 9. Appellant’s assertion is without

legal support. But see Commonwealth v. Fowlin, 710 A.2d 1130, 1132

(Pa. 1998) (observing that justifiable self-defense eliminates recklessness or

malice, not imperfect self-defense). Here, the jury was properly instructed

on the defense of justification, N. T., 2/13/13, at 134-38, and the jury

rejected the defense.     Therefore, the jury could convict Appellant of

aggravated assault.

     Appellant also suggests that his imperfect justification defense entitles

him to a jury instruction on lesser charges, drawing an analogy with the

crimes of murder and voluntary manslaughter, where a defendant is entitled

to a jury instruction on the lesser charge of voluntary manslaughter where

the facts support a finding that the defendant’s belief in justifying

circumstances was unreasonable.        Appellant’s Brief at 12; see, e.g.,

Commonwealth v. Sanchez, 82 A.3d 943, 980 (Pa. 2013).

     A person who intentionally or knowingly kills an individual
     commits voluntary manslaughter if at the time of the killing he
     believes the circumstances to be such that, if they existed,
     would justify the killing under Chapter 5 of this title (relating to
     general principles of justification), but his belief is unreasonable.




                                     -6-
J-S14036-18


18 Pa.C.S. § 2503(b).      However, the charge of voluntary manslaughter

based upon an unreasonable belief that the killing was justifiable was

specifically crafted by the legislature.   If the legislature wanted a similar

category of aggravated assault based upon an unreasonable belief that the

assault was justified, it would have included one in the statutory definition of

aggravated assault.

      As Appellant’s underlying claim that he was entitled to a jury

instruction on self-defense has no merit, Appellant has failed to establish the

first Pierce prong. 527 A.2d at 975. Thus, trial counsel cannot be held to

be ineffective for not requesting such an instruction.

                         Prosecutorial Misconduct

      Next, Appellant maintains that his trial counsel was ineffective for

failing to preserve an objection to prosecutorial misconduct “when the

district attorney emphasized to the jury that the Appellant had failed to

prove that he had a subjective fear” of the victim’s conduct.       Appellant’s

Brief at 14; see N. T., 2/13/13, at 86-87.

      However, trial counsel testified that he did object during sidebar to the

Commonwealth’s remarks about the lack of evidence to show that Appellant

was afraid. N. T., 2/10/17, at 17-18. Although this sidebar was not made

part of the record, there was no evidence presented that this sidebar and

objection did not occur. Furthermore, the PCRA court found trial counsel’s

testimony “extremely credible.”    PCRA Court Opinion, 8/22/17, at 11.       As


                                     -7-
J-S14036-18


trial counsel did object to the Commonwealth’s comments, Appellant’s

underlying claim is again without merit, and trial counsel cannot be found to

be ineffective for failing to object to the Commonwealth’s closing argument.

Pierce, 527 A.2d at 975.

                           Appellant’s Testimony

      Finally, Appellant insists that trial counsel “prevented” him from

testifying in his own defense. Appellant’s Brief at 17.

      During the PCRA hearing, trial counsel explained that he advised

Appellant not to testify, because Appellant would have been a poor witness

due to his difficulty communicating, which could have made Appellant

appear hostile or angry to the jury. N. T., 2/10/17, at 11. Accordingly, trial

counsel’s decision had a reasonable basis, and, consequently, Appellant

failed to prove the second Pierce prong. 527 A.2d at 975. Ergo, we need

not address the remaining prongs. Fitzgerald, 979 A.2d at 911.

      Hence, Appellant has failed to establish any of his claims of ineffective

assistance of trial counsel. We therefore affirm the PCRA counsel’s denial of

his PCRA petition.

      Order affirmed. Jurisdiction relinquished.




                                     -8-
J-S14036-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/18




                          -9-
