J-S25016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAYQUON MASSEY

                            Appellant                No. 1752 WDA 2014


                Appeal from the Order Entered October 10, 2014
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0003771-2008


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 30, 2015

        Appellant, Jayquon Massey, appeals from the October 10, 2014 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. We affirm.

        On October 23, 2008, a jury found Appellant guilty of first-degree

murder, recklessly endangering another person (“REAP”), and carrying a

firearm without a license.1 On December 19, 2008, the trial court imposed

life in prison without parole for murder, a concurrent two to four years of

incarceration for the firearm offense and no further penalty for REAP. This


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a), 2705, and 6106(a)(1), respectively.
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Court affirmed the judgment of sentence on February 24, 2011, and our

Supreme Court denied allowance of appeal on October 14, 2011.

      Appellant filed a timely pro se PCRA petition on September 12, 2012.

Appointed counsel filed an amended petition on Appellant’s behalf on March

14, 2013.    On September 22, 2014, the PCRA court issued its notice of

intent to dismiss the petition without a hearing, per Pa.R.Crim.P. 907. The

PCRA court denied relief on October 10, 2014, and this timely appeal

followed.

      Appellant raises one issue for our review:

             Did the [PCRA] court err in denying Appellant’s PCRA
      petition since trial counsel was ineffective for specifically asking
      the trial court not to give a jury instruction on voluntary
      manslaughter, resulting in the jury being precluded from
      considering imperfect self-defense?

Appellant’s Brief at 3.

      On review, we must determine whether the record supports the PCRA

court’s findings of fact, and whether the court erred in its legal conclusions.

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002), appeal

denied, 808 A.2d 571 (Pa. 2002).

             The right to an evidentiary hearing on a post-conviction
      petition is not absolute. A PCRA court may decline to hold a
      hearing if the petitioner’s claim is patently frivolous and is
      without a trace of support in either the record or from other
      evidence. A reviewing court on appeal must examine each of
      the issues raised in the PCRA petition in light of the record in
      order to determine whether the PCRA court erred in concluding
      that there were no genuine issues of material fact and denying
      relief without an evidentiary hearing.



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Id. at 906 (quoting Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001)).

     With the instant petition, Appellant sought to plead and prove,

pursuant to § 9543(a)(2)(ii) that his trial counsel rendered ineffective

assistance.   Counsel is presumed effective, and the petitioner bears the

burden of proving otherwise. Commonwealth v. Ligons, 971 A.2d 1125,

1137 (Pa. 2009). To prevail, the petitioner must prove: “(1) the underlying

substantive claim has arguable merit; (2) counsel whose effectiveness is

being challenged did not have a reasonable basis for his or her actions or

failure to act; and (3) the petitioner suffered prejudice as a result of

counsel’s deficient performance.” Id.

     The trial court summarized the pertinent facts:

           The incident in question occurred on November 21, 2007,
     at approximately 6:15 PM at a bus stop on the north side area of
     the city of Pittsburgh. The victim was struck in the neck by a
     bullet fired by the defendant, while she and her boyfriend were
     walking from the bus stop with their Thanksgiving groceries.
     [Appellant] had fired at a burgundy SUV that had driven by. The
     general facts are as follows: [Appellant] would visit his north
     side neighborhood on a daily basis because his girlfriend at the
     time had lived there. [Appellant] knew the victim as well as the
     victim’s children, given his testimony that the victim was his
     cousins’ mom. [Appellant] on the day prior to the incident had
     been in this neighborhood with a friend and was robbed at
     gunpoint by unidentified persons in a burgundy SUV.          The
     following evening (November 21, 2007) the defendant was again
     in this north side neighborhood. The victim’s 14-year-old son
     had observed and encountered [Appellant] prior to the incident.
     He testified that he had seen [Appellant] in the neighborhood
     every day, and on the night of the incident he observed a
     burgundy Escalade which he had seen the last several days in
     the area. He testified that the driver of the burgundy Escalade

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       at some point got out of the vehicle and was taunting
       [Appellant]. The 14-year-old also testified that after the vehicle
       had passed, [Appellant] was in the middle of the street trying to
       shoot at the vehicle. The witness testified that the defendant
       had said his gun had jammed and did not discharge. At one
       point, [Appellant] asked to use his cell phone. [Appellant]
       denied the allegations that he attempted to shoot at the vehicle
       while standing in the middle of the street or that the gun had
       jammed.       Subsequently, when the vehicle passed again
       [Appellant] fired shots that ultimately struck the innocent victim
       across the street. Various witnesses testified that they heard
       multiple shots fired. Their recollections varied from four to six
       shots. The Pittsburgh Police recovered two .38 caliber shell
       casings from where [Appellant] was believed to be standing in a
       grassy area. The defense contended that the victim’s son had
       given him the gun, and [Appellant] had initially pointed it at the
       SUV in an attempt to scare them away. When the vehicle
       returned, [Appellant] testified that an arm protruded from the
       vehicle with a gun pointed at him. At that time [Appellant] shot
       twice. No other witnesses observed the arm with a gun from the
       Escalade window.

Trial Court Opinion, 7/30/09, at 2-4.

       Appellant argues his counsel was ineffective in asking the trial court

not to instruct the jury on voluntary manslaughter, leaving the jury to

choose    among      first-degree    murder,     third-degree   murder,   involuntary

manslaughter, or an acquittal. Under a voluntary manslaughter conviction,

Appellant—only 18 years old at the time of the offense—could not have been

sentenced to life imprisonment.2           The Pennsylvania Crimes Code defines

voluntary manslaughter as follows:

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2
   During the colloquy on jury instructions, the trial court and prosecutor
were somewhat incredulous at Appellant’s counsel’s decision to ask for a
charge on involuntary manslaughter, which involves reckless or grossly
(Footnote Continued Next Page)


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             § 2503. Voluntary manslaughter.

             (a) General rule. --A person who kills an individual without
      lawful justification commits voluntary manslaughter if at the time
      of the killing he is acting under a sudden and intense passion
      resulting from serious provocation by:

                       (1) the individual killed; or

                    (2) another whom the actor endeavors to kill, but he
             negligently or accidentally causes the death of the
             individual killed.

             (b) Unreasonable belief killing justifiable. --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.

18 Pa.C.S.A. § 2503.3

      Unreasonable belief voluntary manslaughter, under § 2503(b), is

commonly known as “imperfect self-defense.” Commonwealth v. Rivera,

983 A.2d 1211, 1223 (Pa. 2009). When a defendant produces evidence of

self-defense, the Commonwealth must disprove self-defense beyond a

reasonable doubt. Id. at 1221 (citing Commonwealth v. Torres, 766 A.2d


                       _______________________
(Footnote Continued)

negligent conduct (18 Pa.C.S.A. § 2504(a)) and not on voluntary
manslaughter. The prosecutor and trial judge believed the latter and not the
former to be applicable, given Appellant’s intentional conduct and his
justification defense. Nonetheless, given the circumstances of this case as
explained in the main text, we do not believe Appellant is eligible for
collateral relief.
3
   Appellant does not argue that he committed the crime under a sudden and
intense passion, per § 2503(a).



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342, 345 (Pa. 2001)).          The Commonwealth cannot sustain that burden

based on the jury’s disbelief of the defendant’s testimony. Id.

       Section 505 of the Crimes Code governs justifiable use of force in self-

defense. Section 505(b) defines relevant limits on the use of deadly force in

self-defense. It provides in pertinent part as follows:

              (2) The use of deadly force is not justifiable under this
       section unless the actor believes that such force is necessary to
       protect himself against death, serious bodily injury, kidnapping
       or sexual intercourse compelled by force or threat; nor is it
       justifiable if:

                    (i) the actor, with the intent of causing death or
              serious bodily injury, provoked the use of force against
              himself in the same encounter; or

                    (ii) the actor knows that he can avoid the necessity
              of using such force with complete safety by retreating or
              surrendering possession of a thing to a person asserting a
              claim of right thereto or by complying with a demand that
              he abstain from any action which he has no duty to take[.]

18 Pa.C.S.A. § 505(b).4        These factors apply where the defendant asserts

imperfect self-defense under § 2503(b). “[The imperfect self-defense claim]

is imperfect in only one respect—an unreasonable rather than a reasonable

belief that deadly force was required to save the actor’s life.      All other

principles of justification under 18 Pa.C.S.[A.] § 505 must have been met

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4
    We have quoted the version of the statute in effect at the time of
Appellant’s offense. We observe that the “stand your ground” law, under
current § 505(b)(2.3), post-dates Appellant’s offense and would have no
application here because Appellant was not lawfully in possession of his
firearm.



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before [the defendant] would have been entitled to jury instructions on

unreasonable belief voluntary manslaughter.       Commonwealth v. Tilley,

595 A.2d 575, 582 (Pa. 1991). “[A] trial court shall charge on this type of

voluntary manslaughter only when requested, where that sub-class of the

offense of voluntary manslaughter has been made an issue in the case and

the   trial   evidence    could   reasonably   support   a   verdict   on   it.”

Commonwealth v. Carter, 466 A.2d 1328, 1329 (Pa. 1983). Thus, where

the defendant is the aggressor or has an opportunity to retreat with

complete safety, § 2503(b) is inapplicable.

      The instant record reflects that Appellant had at least four encounters

with the burgundy SUV on the day of the murder. In the first, two of the

vehicle’s occupants got out and taunted Appellant as he was sitting outside

of a barbershop.         N.T. Trial, 10/20/08, at 137-44.     Appellant, who

apparently was unarmed at the time, did not respond to the taunting and

walked inside the barbershop. Id. at 144. Later that day, the SUV drove

past Appellant again. Appellant, now armed, attempted to shoot at the SUV

despite no apparent threat from the vehicle, but his gun failed to discharge.

Id. at 149-57, 217-20. More specifically, Appellant walked into the middle

of the street and attempted to shoot at the back of the vehicle after it

passed him and was driving away from him.            Id. at 152.   The vehicle

was approximately 20 feet past Appellant when he attempted to open fire.

Id. at 155. Appellant was donning a black ski mask during this attempted


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shooting. Id. at 156. The witness heard Appellant complain that his gun

had jammed. Id. at 154, 157. After this incident, Appellant entered one of

the houses on the street. Id. at 223.

       Later, Appellant was once again on the sidewalk, and the SUV

approached Appellant a third time.       The eyewitness fled and gave no

specifics, other than one person emerged from the SUV. Id. at 163-64. In

the final encounter, Appellant opened fire, missing the SUV but shooting the

victim in the neck, killing her. Id. at 170-72. No other witness corroborated

Appellant’s account of an arm reaching out the window of the SUV during

this encounter.

       Appellant testified that he feared the occupants of the burgundy SUV

because he and his girlfriend were robbed at gunpoint in the same

neighborhood the day before.     N.T. Trial, 10/22/08, at 465-72.    Appellant

did not report the robbery to the police or to the proprietors of nearby

businesses. Id. at 476, 550. Immediately after the robbery, Appellant saw

the dark red SUV drive past again. Appellant returned to the neighborhood

the next day to visit his girlfriend, which he did every day. Id. at 464, 478.

Appellant’s girlfriend’s house was not in the immediate vicinity of the scene

of the alleged robbery and Appellant’s encounters with the SUV the next

day.   Id. at 556-57.   Eventually, Appellant’s girlfriend left with her friend

and Appellant remained in the neighborhood alone. Id. at 482. Appellant

testified he retreated into a barbershop after his first encounter with the SUV


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on the day of the shooting.    Id. at 491.       One of the vehicle’s occupants

followed him into the barbershop, but the barber asked the occupant to

leave.   Id. at 495.   Appellant stated he remained in the barbershop for a

period of time but was unable to leave the neighborhood because the

barbershop did not have a back door.          Id. at 498-99.    Upon leaving the

barbershop,   Appellant   called   several     friends   in   attempt   to   obtain

transportation out of the neighborhood. Id. at 501. One of the friends met

Appellant outside the barbershop and handed him a gun wrapped in a white

t-shirt and then left. Id. at 502-03.

      Appellant testified that when he saw the SUV the second time he

pointed the gun to scare the vehicle’s occupants but did not attempt to

shoot. Id. at 508-09. Appellant ran down the street to the home of “Gina,”

a woman he knew. The occupant who answered the door did not allow him

to enter. Id. at 509-10. Gina’s home was only several houses away from

the home of Appellant’s friend where Appellant spent time every day for a

period of months.      Id. at 580-81.         Appellant hid behind some porch

furniture, in front of Gina’s home but the occupant of the home asked him to

leave. Id. at 513.

      Just before the shooting, Appellant testified he was behind some dead

bushes. Id. at 521. Appellant saw the SUV approaching and he saw an arm

protruding out the window pointing a gun at him. Id. at 522-23. Appellant

then pointed his gun at the SUV and shot twice. Id. at 523-24. Appellant


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testified the occupant of the SUV fired at him at the same time. Id. at 525.

Appellant stayed at a friend’s girlfriend’s house for a week before his arrest.

Id. at 538-39, 602-04.

      On direct appeal, Appellant argued the Commonwealth failed to

produce sufficient evidence to disprove self-defense beyond a reasonable

doubt.   The trial court rejected that argument in its Pa.R.A.P. 1925(a)

opinion, noting the Appellant’s first, unsuccessful attempt to open fire on the

SUV and Appellant’s failure to retreat. Trial Court Opinion, 7/30/09, at 5-6.

The trial court noted Appellant had an opportunity to retreat into a nearby

fire station. Id. at 6. In affirming the trial court on that issue, this Court

adopted the trial court’s reasoning. Commonwealth v. Massey, 608 WDA

2009 (Pa. Super. 2011), unpublished memorandum, at 7.

      Under   these   circumstances,    Appellant’s   assertion   of   counsel’s

ineffectiveness fails because Appellant cannot establish prejudice.         “To

demonstrate prejudice, the petitioner must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different. Commonwealth v. Spotz, 84 A.3d

294, 312 (Pa. 2014). A jury charge on § 2503(b)—where the record reflects

that Appellant was the aggressor and had an opportunity to retreat—could

not have changed the outcome of this case.            See Commonwealth v.

Isaacman, 409 A.2d 880, 881 (Pa. Super. 1979) (holding the defendant

had a duty to retreat when the decedent left the scene, even if the


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defendant believed the decedent would later return and attempt to harm the

defendant).      The jury found the Commonwealth disproved Appellant’s

justification defense beyond a reasonable doubt.         The factors this Court

relied on in affirming the conviction on direct appeal—Appellant’s aggression

and his failure to retreat—are equally fatal to an imperfect self-defense

theory under § 2503(b).          In summary, the record reflects that Appellant

voluntarily returned to the location where he was allegedly the victim of a

robbery one day earlier.           He remained in that location after several

encounters with a vehicle he believed to be occupied by the perpetrators.

He obtained a weapon from a friend and attempted to fire it unsuccessfully—

while donning a ski mask—on one occasion prior to the fatal encounter.

Given these facts, we do not believe a reasonable probability exists that a

voluntary manslaughter instruction would have led to a different result, i.e.,

conviction for a lesser offense than first-degree murder. Appellant has failed

to establish prejudice, and that failure is fatal to his claim.    Ligons, 971

A.2d at 1137 (noting that a claim of ineffective assistance of counsel will not

succeed unless the petitioner pleads and proves all three prongs of the

analysis). We discern no legal error in dismissing Appellant’s PCRA petition.5

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5
   We are cognizant that the PCRA court dismissed the petition because it
believed counsel made a strategically reasonable choice in seeking acquittal
based on the justification defense rather than a potential compromise verdict
resulting in a conviction for voluntary manslaughter. In support of its
holding, the PCRA court cites Commonwealth v. Sullivan, 299 A.2d 608
(Footnote Continued Next Page)


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      Order affirmed.

      President Judge Emeritus Bender joins the memorandum.

      Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2015




                       _______________________
(Footnote Continued)

(Pa. 1973), wherein the Supreme Court held that the decision to forego a
given jury charge is “one of the tactical decisions exclusively within the
province of counsel.” Id. at 610. Thus, counsel was not ineffective for
foregoing a voluntary manslaughter jury charge in hope of obtaining an
acquittal based on self-defense. Id. We need not express an opinion on
counsel’s strategic basis, as Appellant’s failure to establish prejudice is fatal
to his claim. We are free to affirm the PCRA court on any valid basis.
Commonwealth v. Janda, 14 A.3d 147, 161 n.8 (Pa. Super. 2011).



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