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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
TERRANCE LAMONT EDMONDS,                   :         No. 1778 MDA 2019
                                           :
                          Appellant        :


           Appeal from the PCRA Order Entered September 25, 2019,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0001412-2016


BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED: MAY 11, 2020

        Terrance Lamont Edmonds appeals from the September 25, 2019 order

entered by the Court of Common Pleas of York County denying his petition for

relief pursuant to the Post Conviction Relief Act (“PCRA”).         42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

        The factual history of this case was set forth by a previous panel of this

court, and we need not restate it here. On March 21, 2017, a jury convicted

appellant of one count of possession of a controlled substance with the intent

to deliver1 (“PWID”) at CP-67-CR-1412-2016 (“No. 1412-2016”) and one

count of delivery of a controlled substance            at CP-67-CR-3899-2016

(“No. 3899-2016”) following a consolidated trial. The trial court sentenced




1   35 P.S. § 780-113(a)(30).
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appellant to an aggregate term of 6½ to 13 years’ imprisonment. Appellant

filed a notice of appeal, and a previous panel of this court affirmed the

judgment of sentence at both docket numbers.                     Commonwealth v.

Edmonds, 188 A.3d 510 (Pa.Super. 2018) (unpublished memorandum). Our

supreme court denied appellant’s subsequent petition for allowance of appeal

on October 2, 2018.          Commonwealth v. Edmonds, 195 A.3d 163 (Pa.

2018).     Appellant did not file a petition for a writ of certiorari with the

Supreme Court of the United States.

     On May 16, 2019, appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel to represent appellant, and counsel filed an

amended PCRA petition on September 9, 2019. On September 25, 2019, the

PCRA court entered an order denying appellant’s PCRA petition without a

hearing.

     Appellant filed a timely notice of appeal.2            The PCRA court ordered

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The PCRA court

subsequently     filed   a   statement   in    lieu   of   an   opinion   pursuant   to


2We note that while appellant’s May 16, 2019 pro se PCRA petition listed
both docket numbers, appellant’s September 9, 2019 counseled amended
PCRA petition and the notice of appeal only listed No. 1412-2016. (See
pro se PCRA petition, 5/16/19; amended PCRA petition, 9/9/19; appellant’s
notice of appeal, 10/24/19.) The PCRA court’s order dismissing appellant’s
PCRA petition only listed No. 1412-2016. (See PCRA court order, 9/25/19;
see also PCRA court opinion, 9/25/19 at 2 n.1.) Because the order at issue
only lists one docket number, we find that our supreme court’s decision in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), is not applicable here.


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Pa.R.A.P. 1925(a) in which it relies upon its September 25, 2019 opinion filed

with the order dismissing appellant’s PCRA petition.

      Appellant raises the following issue for our review:

            Whether the PCRA Court abused its discretion by
            denying [appellant’s] PCRA petition and not finding
            counsel was ineffective for failing to object to an
            erroneous jury instruction misstating the burden of
            proof where jurors are presumed to follow the trial
            court’s instruction and there are several cases that
            support a finding of ineffective assistance of counsel
            or failing to seek proper jury instruction, including
            Commonwealth         v.    Perez,      [Footnote    1]
            Commonwealth v. Moore, [Footnote 2] and
            Commonwealth v. Hawkins[Footnote 3]?

                   [Footnote 1] 103 A.3d 344 (Pa. Super.
                   2014)[.]

                   [Footnote 2] 715 A2d 448 (Pa. Super.
                   1998)[.]

                   [Footnote 3] 894 A.2d 716 (Pa. 2006).
                   While this case was cited in Defendant’s
                   original 1925(b) statement, upon further
                   review it is determined that this case was
                   applicable [sic] to the present case, and
                   therefore is not discussed infra.

Appellant’s brief at 4.

      We begin with our well-settled standard of review.

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, [] 17 A.3d
            297, 301 ([Pa.] 2011) (citation omitted). A PCRA
            court’s credibility findings are to be accorded great
            deference, and where supported by the record, such
            determinations are binding on a reviewing court. Id.,
            at 305 (citations omitted). To obtain PCRA relief,


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            appellant must plead and prove by a preponderance
            of the evidence: (1) his conviction or sentence
            resulted from one of more of the errors enumerated
            in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his claims have
            not been previously litigated or waived, id.,
            § 9543(a)(3); and (3) “the failure to litigate the issue
            prior to or during trial . . . or on direct appeal could
            not have been the result of any rational, strategic or
            tactical decision by counsel[,]” id., § 9543(a)(4). An
            issue is previously litigated if “the highest appellate
            court in which [appellant] could have had review as a
            matter of right has ruled on the merits of the issue[.]”
            Id., § 9544(a)(2). “[A]n issue is waived if [appellant]
            could have raised it but failed to do so before trial, at
            trial, . . . on appeal or in a prior state postconviction
            proceeding.” Id., § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

      In his sole issue on appeal, appellant alleges ineffective assistance on

the part of his trial counsel.   Under the PCRA, an individual is eligible for

post-conviction relief if the conviction was the result of “ineffective assistance

of counsel which, in the circumstances of the particular case, so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.”       42 Pa.C.S.A. § 9543(a)(2)(ii).     When

considering whether counsel was ineffective, we are governed by the following

standard:

                  [C]ounsel is presumed effective, and to
                  rebut that presumption, the PCRA
                  petitioner    must   demonstrate     that
                  counsel’s performance was deficient and
                  that such deficiency prejudiced him.
                  Strickland v. Washington, 466 U.S.
                  668 [] (1984). This Court has described
                  the Strickland standard as tripartite by
                  dividing the performance element into two


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                    distinct components. Commonwealth v.
                    Pierce, [] 527 A.2d 973, 975 ([Pa.]
                    1987).      Accordingly, to prove counsel
                    ineffective,      the    petitioner    must
                    demonstrate that: (1) the underlying
                    legal     issue    has    arguable   merit;
                    (2) counsel’s actions lacked an objective
                    reasonable basis; and (3) the petitioner
                    was prejudiced by counsel’s act or
                    omission. Id. A claim of ineffectiveness
                    will be denied if the petitioner’s evidence
                    fails to satisfy any one of these prongs.

              Commonwealth v. Busanet, [] 54 A.3d 34, 45
              ([Pa.] 2012) (citations formatted). Furthermore, “[i]n
              accord with these well-established criteria for review,
              [an appellant] must set forth and individually discuss
              substantively each prong of the [Pierce] test.”
              Commonwealth v. Fitzgerald, 979 A.2d 908, 910
              (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015), order

vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

      In the instant case, appellant alleges that his trial counsel rendered

ineffective assistance because he failed to object to the following instruction

that the trial court provided to the jury:

              So to summarize, you may not find [appellant] guilty
              based on a mere suspicion of guilt.             The
              Commonwealth has the burden of proving [appellant]
              guilty beyond a reasonable doubt. If it meets that
              burden, then [appellant] is no longer presumed
              innocent and you should find him guilty. On the
              other hand, if the Commonwealth does not meet
              its burden, then you must find him guilty.

Notes of testimony, 3/22/17 at 223 (emphasis added), cited by appellant’s

brief at 8.



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      We begin our analysis with the prejudice prong under Pierce.           Our

supreme court has held that a PCRA petitioner establishes prejudice within the

context of an ineffective assistance of counsel claim when he or she,

“demonstrat[es] there is a reasonable probability that, but for counsel’s error,

the outcome of the proceedings would have been different.” Commonwealth

v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012), citing Commonwealth v.

Kimball, 724 A.2d 326, 332 (Pa. 1999).

      In the context of ineffective assistance of counsel claims pertaining to

jury instructions, our supreme court’s decision in Commonwealth v.

Koehler, 36 A.3d 121 (Pa. 2012), is instructive here.          In Koehler, the

defendant filed a PCRA petition alleging, inter alia, ineffective assistance of

counsel because counsel failed to raise an objection to an erroneous jury

instruction pertaining to the defendant’s intent to kill in a first-degree murder

case. Id. at 153. The defendant alleged that the trial court’s instruction at

issue in Koehler “reliev[ed] the Commonwealth of its burden of proving all

elements of first degree murder.” Id. The Koehler court concluded that the

trial court’s jury instructions, when read in their entirety, correctly described

the elements of first-degree murder, including the requisite intent to kill. Id.

at 156 (citation omitted); see also Commonwealth v. Lesko, 15 A.3d 345,

397 (Pa. 2011) (“It is well settled that in reviewing a challenge to a

jury instruction the charge, as a whole, must be considered.”).




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      Based on our review of the trial court’s charge to the jury, we note that

the trial court addressed the Commonwealth’s burden of proof six times,

including the instruction at issue here:

              Furthermore, [appellant] is presumed innocent
              throughout the trial and unless and until you conclude
              based on a careful consideration of the evidence that
              the Commonwealth has proven him guilty beyond a
              reasonable doubt.

              It is not [appellant’s] burden to prove that he is not
              guilty. Instead, it is the Commonwealth that always
              has the burden of proving each and every element of
              the crimes charged and that [appellant] is guilty of
              those crimes beyond a reasonable doubt.

Notes of testimony, 3/22/17 at 221-222.

              If the Commonwealth’s evidence fails to meet its
              burden, then your verdict must be not guilty. On the
              other hand, if the Commonwealth’s evidence does
              prove beyond a reasonable doubt that [appellant] is
              guilty, then your verdict must be guilty.

Id. at 222.

              The Commonwealth has the burden of proving
              [appellant] guilty beyond a reasonable doubt. If it
              meets that burden, then [appellant] is no longer
              presumed innocent and you should find him guilty. On
              the other hand, if the Commonwealth does not meet
              its burden, then you must find him guilty.

Id. at 223.

              If the Commonwealth has proven all of these elements
              beyond a reasonable doubt, then you should find
              [appellant] guilty of this charge.            If the
              Commonwealth has failed to prove at least one
              element beyond a reasonable doubt, then you must
              find [appellant] not guilty.



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Id. at 234-235.

              You may conclude that [appellant] had the intent to
              deliver based on circumstantial evidence alone, but
              only if the circumstantial evidence is strong enough to
              convince you that the Commonwealth has established
              this intent beyond a reasonable doubt.

Id. at 237.

              If you are satisfied that the elements of delivering a
              controlled substance have been proven beyond a
              reasonable doubt, you should find [appellant] guilty.
              Otherwise, even if one of the elements has not been
              proven beyond a reasonable doubt, you must find
              [appellant] not guilty of this crime.

Id. at 238.

      After considering the trial court’s entire charge to the jury prior to

deliberation, we find that appellant did not establish that the trial court’s

isolated error prejudiced him in such a way that there was a reasonable

probability that the outcome of the trial would have been different but for trial

counsel’s failure to object to the trial court’s jury instructions.     Koehler,

36 A.3d at 156; Keaton, 45 A.3d at 1061.          Accordingly, the PCRA court’s

findings are supported by the record and free of legal error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/11/2020


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