J-S34002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JESSE LEWIS                                :
                                               :
                       Appellant               :   No. 249 WDA 2018

             Appeal from the PCRA Order Entered January 16, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0013110-2011


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 19, 2019

Appellant, Jesse Lewis, appeals from the January 16, 2018 Order entered in

the Allegheny County Court of Common Pleas dismissing his first Petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546,

as meritless. After careful review, we affirm.

        On March 17, 2011, Appellant shot Lakisha Robinson and Richard Edge,

killing the former and injuring the latter.          Following this incident, the

Commonwealth charged Appellant with one count each of First-Degree

Murder, Attempted Murder (with the victim suffering from serious bodily

injury), Aggravated Assault, Persons Not to Possess a Firearm, and the




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*   Retired Senior Judge assigned to the Superior Court.
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summary offense of Carrying a Loaded Weapon, and two counts of Recklessly

Endangering Another Person (“REAP”).1

       Nicole Orwick, a Commonwealth witness, testified that, on the night of

the murder, she, Ms. Robinson, and another friend, Patrice Hammond went to

Peanutz, a local bar. She testified that, later that night, Ms. Robinson got into

a fight with Sakisha Morant outside Peanutz. She further testified that she

attempted to break up the fight, but Ms. Robinson and Ms. Morant continued

to argue.    She then testified that she observed Ms. Robinson walk up the

stairs, when she heard a gunshot.

       Relevant to the instant appeal, at trial, the Commonwealth introduced

footage from two surveillance cameras. Ms. Orwick identified Appellant in the

footage as wearing a white shirt with stripes, pointed out on the video

Appellant’s extended hand holding an object, and testified that is where the

gunfire came from. She further testified that the individual seen on the video

running away and throwing a gun was Appellant.

       Appellant’s other victim, Richard Edge, testified that he did not

remember seeing Appellant in the bar that night. Mr. Edge said he tried to

break up a fight outside of the bar between Patrice Hammond and a woman

named Lexie.      He testified that Ms. Robinson and Ms. Morant entered the

melee and while Edge was trying to restore order, he heard two shots. After

Edge heard the first shot, he turned and ran but was hit in the arm with the
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1 18 Pa.C.S. §§ 2501; 901(a); 2702(a)(1); 6105(a)(1); 6106.1(a); and 2705,
respectively.

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second shot as he was running away. Edge testified that he did not see who

shot him. Edge said that the person in the video in the white muscle shirt

(the same person identified by Orwik) holding the gun shot him. Upon further

review of the video, Edge testified that the same person who had shot him

had jumped on his back earlier during the fight. At the time, Edge thought

that the person on his back was a woman. Edge pushed the person in the

white muscle shirt away, as seen on the video. Both Edge and his brother

Demitrius Edge identified Appellant from a photo array.           Hammond also

identified Appellant as the individual in the white muscle shirt.

      Police Officer James Smith testified that he interviewed another witness,

Derrick Cabel. In the interview, Cabel stated that after he heard the second

shot, he looked over a wall he was hiding behind and saw Appellant with a

gun pointed at Edge. Sergeant Christina Davison testified that she responded

to the dispatch call of shots fired in the area. As she was arriving at the scene,

a short male in a white t-shirt and dark pants ran directly in front of her vehicle

away from the area where the shots were fired. Sergeant Davison identified

Appellant as that individual.     She further stated that Appellant and the

individual in the video were consistent in stature and clothing.     See Trial Ct.

Op., 4/7/14, at 3-6.

      On February 28, 2013, a jury convicted Appellant of one count each of

First-Degree Murder, Attempted Murder, and Aggravated Assault, and two




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counts of REAP.2 On May 8, 2013, the trial court sentenced Appellant to a

term of life imprisonment for the First-Degree Murder conviction with a

consecutive aggregate term of 26 to 52 years’ incarceration for the remaining

convictions.3 Appellant filed a timely Post-Sentence Motion, which the trial

court denied.

       On May 5, 2015, this Court affirmed Appellant’s Judgment of Sentence.

See Commonwealth v. Lewis, 122 A.3d 440 (Pa. Super. 2015).4                 On

October 23, 2015, the Pennsylvania Supreme Court denied Appellant’s Petition

for Allowance of Appeal. See Commonwealth v. Lewis, 126 A.3d 1283 (Pa.

2015).    Appellant did not seek a writ of certiorari from the United States

Supreme Court. His Judgment of Sentence, thus, became final on January

21, 2016. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.

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2The court also convicted Appellant of Persons Not to Possess a Firearm, 18
Pa.C.S. § 6105(a)(1), the bifurcation of which Appellant’s counsel requested
by oral motion, and the summary offense of Carrying a Loaded Weapon, 18
Pa.C.S. § 6106.1(a).

3 In particular, Appellant’s aggregate sentence consisted of a 20 to 40 year
term of incarceration for his Attempted Murder conviction, a 5 to 10 year
consecutive term of incarceration for his Persons Not to Possess Firearms
conviction, and a 1 to 2 year term of incarceration for his REAP conviction.
The court imposed no further penalty on the Aggravated Assault and Carrying
a Loaded Weapon convictions.

4 In his direct appeal, Appellant challenged the sufficiency of the evidence in
support of his First-Degree Murder conviction, and an evidentiary ruling, and
asserted that he had not knowingly and voluntarily waived his right to a jury
trial on the Persons Not to Possess a Firearm charge.




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       On October 19, 2016, Appellant filed a timely counselled PCRA Petition,

and on September 14, 2017, with leave of court, an Amended PCRA Petition.5

In his Amended Petition, Appellant alleged that he is serving an illegal

sentence and that the Commonwealth violated his due process rights by

withholding a videotape of the shooting—suppressed by Police Detective

Margaret Sherwood—that Appellant claims shows that he was acting in self-

defense.     Appellant also asserted claims that his trial counsel had been

ineffective for failing to: (1) argue at trial that there was more than one

videotape of the shooting; (2) obtain the second videotape; (3) request a

Kloiber6 instruction with respect to Nicole Orwik’s testimony; (4) object to

the trial court’s “imperfect self-defense” instruction; and (5) request a “full”

voluntary manslaughter jury instruction and a “transferred intent” instruction.

Amended Petition, 9/14/17, at I-VII.

       On December 1, 2017, the Commonwealth filed an Answer to

Appellant’s Amended Petition. On December 8, 2017, the PCRA court notified

Appellant of its intent to dismiss his Amended Petition without a hearing

pursuant to Pa.R.Crim.P. 907. Appellant did not file a Response to the court’s

Rule 907 Notice. On January 17, 2017, the PCRA court dismissed Appellant’s

Amended Petition.




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5 Counsel, Thomas N. Farrell, Esquire, also represented Appellant in his direct
appeal.
6 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).


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      This appeal followed. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant raises the following three issues on appeal:
      I.    Whether newly discovered evidence demonstrating that
            Detective Margaret Sherwood is a corrupt police officer who
            has a history of deceitfulness in manipulating witnesses and
            evidence, in light of the fact that there was more than one
            videotape of the shooting, which showed that Appellant was
            not the shooter, and was never turned over by the police?

      II.    Whether counsel gave ineffective assistance for failing to
             object to the trial court’s instruction that if the jury found
             Appellant had committed first-degree murder that they
             could not consider voluntary manslaughter?

      III.   Whether the sentence for criminal attempt homicide of
             Richard Edge merges with the sentence of first-degree
             murder when the jury was instructed that Appellant’s intent
             and attempt to kill Richard Edge could be used as an
             element to convict Appellant of first-degree murder of
             Lakisha Robinson?

Appellant’s Brief at 5.

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).     We give no such deference, however, to the court’s legal

conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

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enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Relevantly,

the PCRA provides relief for a petitioner who demonstrates his conviction or

sentence resulted from “[t]he unavailability at the time of trial of exculpatory

evidence that has subsequently become available and would have changed

the outcome of the trial if it had been introduced.”               42 Pa.C.S. §

9543(a)(2)(vi).    To establish a claim of newly discovered evidence, a

petitioner must prove that: “(1) the evidence has been discovered after trial

and it could not have been obtained at or prior to trial through reasonable

diligence; (2) the evidence is not cumulative; (3) it is not being used solely to

impeach credibility; and (4) it would likely compel a different verdict.”

Commonwealth v. Sepulveda, 144 A.3d 1270, 1276 n.14 (Pa. 2016).

Newly discovered evidence must be producible and admissible in order to

entitle a petitioner to relief. Commonwealth v. Castro, 93 A.3d 818, 825

(Pa. 2014). There is no right to a PCRA hearing; a hearing is unnecessary

where the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      In his first issue, Appellant claims that the trial court erred in dismissing

his Amended Petition without an evidentiary hearing because he has “newly

discovered evidence that one of the main detectives in his case, Detective

Margaret Sherwood, has been identified as a corrupt police officer with a

history of deceitfulness in manipulating witnesses.” Id. at 17. In particular,

Appellant claims that Detective Sherwood’s January 26, 2018 indictment for

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one count each of False Swearing, Unsworn Falsification to Authorities,

Tampering      with    or   Fabricating        Physical   Evidence,   Obstructing   the

Administration of Law or Other Governmental Function, Hindering Prosecution,

and False Imprisonment supports his claim that she pressured and coerced

witnesses in his case into providing false incriminating statements against

Appellant and suppressed exculpatory evidence. Id. at 18-23.

       This Court’s review of the record in this matter indicates that Appellant

has raised this issue for the first time in his Rule 1925(b) statement. See

Rule 1925(b) Statement, 8/23/18, at ¶ III. It is axiomatic that issues not

raised before the PCRA court in a PCRA Petition are waived.                         See

Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014) (reiterating that an

appellant cannot preserve an issue not raised in a PCRA Petition by raising it

for the first time in his Rule 1925(b) Statement; the claim is “indisputably

waived”).7 Appellant has, thus, waived this issue on appeal.

       In his second issue, Appellant claims that his trial counsel was ineffective

for failing to object to the trial court’s First-Degree Murder jury instruction.




____________________________________________


7 Moreover, even if Appellant had not waived this claim, it would garner him
no relief. We agree with the PCRA Court that this “evidence” fails to satisfy
both the third and fourth prongs of the test for newly-discovered evidence as
it is clearly an attempt to impeach Detective Sherwood and Appellant has not
demonstrated that it would likely compel a different result. Last, we note that
Appellant has not cited any authority in support of his claim, in contravention
of Pa.R.A.P. 2119.



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      The    law   presumes     counsel    has     rendered     effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in

rejection   of   the   appellant’s   ineffective   assistance     of   counsel   claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      In order to successfully raise an ineffective assistance of counsel claim,

the petitioner must demonstrate that he suffered “actual prejudice[.]”

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014). A petitioner shows

“actual prejudice” when “counsel’s ineffectiveness was of such magnitude that

it could have reasonably had an adverse effect on the outcome of the

proceedings.” Id. (citation and internal quotation marks omitted).

      With respect to whether counsel’s strategy and tactics had “any

reasonable basis,” the PCRA court may not conclude that counsel’s chosen

strategy lacked a reasonable basis “unless it can be concluded that an

alternative not chosen offered a potential for success substantially greater




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than the course actually pursued.”     Commonwealth v. Mason, 130 A.3d

601, 618 (Pa. 2015) (citation omitted).

      In particular, Appellant claims that counsel ineffectively failed to object

to the court’s voluntary manslaughter instruction. Appellant’s Brief at 24. He

avers that counsel’s failure prejudiced him because the court’s instruction

precluded the jury from considering his imperfect self-defense and heat of

passion defenses to “mitigate any murder offense found by the jury.” Id. at

26. He asserts that his counsel had no reasonable basis or strategic reason

for not objecting. Id.

      This court reviews a trial court’s jury instructions as follows:
      [W]hen evaluating the propriety of jury instructions, this Court will
      look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury for
      its consideration. Only where there is an abuse of discretion or
      an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citations omitted) (emphasis added).     This Court will deem a jury charge

erroneous only where the charge as a whole is inadequate, unclear, or has a

tendency to mislead or confuse, rather than clarify a material issue.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super. 2008). A charge

is adequate unless it palpably misleads the jury or contains an omission that

is tantamount to a fundamental error. Id.



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      At trial, Appellant asserted that he was not guilty of the crimes charged,

but, in the alternative, also requested that the court instruct the jury on the

charge of voluntary manslaughter. The court agreed and instructed the jury

on the charges of, inter alia, First-Degree Murder, Third-Degree Murder, and

Voluntary Manslaughter. Appellant now complains, however, that the court’s

instruction was an “inaccurate statement of the law.” Appellant’s Brief at 25.

In particular, Appellant complains about the following brief, isolated portion of

the jury instructions given by the trial court:
      If you find the defendant guilty of [First-Degree Murder] you do
      not need to consider a verdict on any of the lesser degrees of
      homicide that I have defined for you.

N.T., 2/6/13, at 601.

      This Court’s review of the entirety of the trial court’s jury instructions

reveals that the court carefully and thoroughly explained to the jury the

different degrees of homicide, including first-degree and lesser degrees of

homicide, and instructed the jury to carefully evaluate each and every possible

verdict in the case. See id. at 591-603. The isolated portion of the instruction

about which Appellant complains is an accurate statement of the law, and,

when viewed within the context and totality of the court’s instructions, was

not likely to palpably mislead the jury. The jury instruction was, therefore,

appropriate and Appellant’s trial counsel would have had no reasonable basis

for objecting to it. Counsel was, thus, not ineffective and Appellant is not

entitled to relief on this claim.




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      In his final issue, Appellant complains that he is serving an illegal

sentence. Appellant argues that his conviction of Attempted Murder merged

with his First-Degree Murder conviction for sentencing purposes because he

committed these crimes during only one distinct criminal episode and the

court’s jury instruction “permitted Appellant’s intent to kill Richard Edge [to]

be used as an element for conviction [of] [F]irst-[D]egree [M]urder of Lakisha

Robinson.” Appellant’s Brief at 28-29.

      “The merger doctrine developed to prevent punishing a defendant more

than once for one criminal act.” Commonwealth v. Gatling, 807 A.2d 890,

894 (Pa. 2002). “In order for two convictions to merge: (1) the crimes must

be greater and lesser-included offenses; and (2) the crimes charged must be

based on the same facts.” Id. at 899. If either prong is not met, merger is

not appropriate. Id.

      A lesser-included offense is defined as follows:
      One crime is a lesser-included offense if, while considering the
      underlying factual circumstances, the elements constituting the
      lesser crime as charged are all included within the elements of the
      greater crime, and the greater offense includes at least one
      additional element that is not a requisite for committing the lesser
      crime.

Id. at 899 n.9.

      In the instant case, the jury convicted Appellant of separate offenses.

Contrary to Appellant’s claim, our Supreme Court has held that “the imposition

of multiple sentences upon a defendant whose single unlawful act injures

multiple victims is legislatively authorized[.]” Commonwealth v. Frisbie,

485 A.2d 1098, 1101 (Pa. 1984). See also Commonwealth v. Glass, 50

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A.3d 720, 732 (Pa. Super. 2012) (upholding the trial court’s separate

sentences for separate victims of defendant’s single act of arson);

Commonwealth v. Burdge, 562 A.2d 864, 867 (Pa. Super. 1989) (“[w]here

there are multiple victims of a defendant’s criminal conduct, separate

punishments are not barred by the merger doctrine. This is true even where

there is only a single criminal transaction.”).

      In light of the foregoing, Appellant’s claim is devoid of merit and he is

not entitled to relief. The record supports the PCRA court’s findings and its

Order is otherwise free of legal error. Moreover, because it was evident from

the record that Appellant had not presented any genuine issues of material

fact, the court did not err in dismissing Appellant’s Amended Petition without

a hearing.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2019




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