J-S58022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

SAMUEL LEE FOSTER, II,

                           Appellant                 No. 707 MDA 2017


                 Appeal from the PCRA Order April 13, 2017
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0000522-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 18, 2017

      Appellant, Samuel Lee Foster, II, appeals from the order denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

            [Appellant] was charged with one count of aggravated
      assault.1   A two day jury trial, at which [Appellant] was
      represented by the Lancaster County Public Defender’s Office,
      commenced on May 6, 2013. At the conclusion of the trial,
      [Appellant] was found guilty and, on June 28, 2013, was
      sentenced to an aggregate term of two to six years
      incarceration. [Appellant] is currently serving that sentence.

            1   18 Pa.C.S. § 2702(a)(3).

           The incident that gave rise to this charge occurred on
      September 12, 2012, when [Appellant], an inmate housed in the
      Medical Housing Unit of Lancaster County Prison, smeared butter
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     on the lens of the surveillance camera in his cell and then left
     the cell when a corrections officer came to clean it. In the
     course of subduing [Appellant] and returning him to his cell, one
     corrections officer’s pant leg was spit upon and that officer was
     kneed in the groin by [Appellant].

           [Appellant] filed a timely notice of appeal and the Superior
     Court affirmed the judgment of sentence. Commonwealth v.
     Foster, 1385 MDA 2013 (Pa. Super., April 9, 2014).
     [Appellant’s] petition for allowance of appeal was denied on
     October 24, 2014.

            On January 23, 2015, [Appellant] filed a timely pro se
     motion for post conviction collateral relief. The [c]ourt appointed
     counsel who filed an amended motion for post conviction
     collateral relief on August 16, 2016, alleging ineffective
     assistance of counsel. In particular, [Appellant] alleges that his
     trial counsel was ineffective for neither requesting an instruction
     on prior inconsistent statements nor objecting when the [c]ourt
     did not give such an instruction, [and] for failing to request an
     instruction on the concept of false in one, false in all[.]

          An evidentiary hearing was held on January 26, 2017.
     [Appellant] and the Commonwealth have submitted briefs in
     support of their respective positions.

PCRA Court’s Opinion, 4/13/17, at 1-2.

     The PCRA court denied Appellant’s amended petition on April 13, 2017.

Appellant filed an appeal on April 24, 2017. The PCRA court and Appellant

complied with Pa.R.A.P. 1925.

     Appellant presents the following issues for our review:

     A. Whether the lower court erred in denying [Appellant’s]
        amended PCRA when trial counsel was ineffective when he
        neither requested an instruction on prior inconsistent
        statements nor objected when the court failed to give such an
        instruction?

     B. Whether the lower court erred in denying [Appellant’s]
        amended PCRA when counsel was ineffective by failing to

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         request an instruction concerning the concept of false in one
         and false in all?

Appellant’s Brief at 4 (full capitalization omitted).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011).         The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id.

      Appellant first argues that trial counsel was ineffective for failing to

request an instruction on prior inconsistent statements, or object when the

trial court failed to give such an instruction.         Appellant’s Brief at 11.

Appellant   asserts   that   during   cross-examination    of   Officer   Stephen

Napolitan, counsel confronted Officer Napolitan regarding inconsistent

statements contained in the Officer’s report.       Id. at 12-13.    Specifically,

Appellant contends that Officer Napolitan was confronted with the fact that

his report indicated that the Officer applied an underarm neck hold on

Appellant outside of his cell, but Officer Napolitan testified on direct

examination that he had applied such neck hold when Appellant was already

in the cell. Id. at 13. Appellant maintains that although the Pennsylvania

Suggested Standard Jury Instructions specifically provide for an instruction

pertaining to prior inconsistent statements, counsel neither requested such

instruction nor objected when the trial court failed to give it. Id. Appellant


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further asserts that the trial court’s general jury instruction on witness

credibility given to the jury “does not excuse trial counsel’s decision in this

case.” Id. at 14.

      When considering an allegation of ineffective assistance of counsel

(“IAC”), counsel is presumed to have provided effective representation

unless the PCRA petitioner pleads and proves that: (1) the underlying claim

is of arguable merit; (2) counsel had no reasonable basis for his or her

conduct; and (3) petitioner was prejudiced by counsel’s action or omission.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet

the prejudice prong of the ineffectiveness standard, a defendant must show

that there is a ‘reasonable probability that but for counsel’s unprofessional

errors,   the   result   of   the   proceeding   would   have   been   different.’”

Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of

ineffective assistance of counsel will fail if the petitioner does not meet any

one of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260

(Pa. 2013).     “The burden of proving ineffectiveness rests with Appellant.”

Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      We are mindful that:

             When 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

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      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). “The trial court is not required to give every charge that

is requested by the parties and its refusal to give a requested charge does

not require reversal unless the [a]ppellant was prejudiced by that refusal.”

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).

      We first note that aside from Appellant’s bald assertion that counsel’s

decision not to request this instruction was unreasonable and that Appellant

was prejudiced by the absence of this instruction, Appellant fails to develop

his argument or present pertinent authority to support his position.

Accordingly, his first issue is waived. Commonwealth v. Charleston, 94

A.3d 1012, 1021 (Pa. Super. 2014).

      Furthermore, Appellant’s claim lacks merit.         As the trial court

explained:

      Although no instruction was requested or given regarding prior
      inconsistent statements, the [c]ourt gave an extensive charge on
      witness credibility that clearly, adequately and accurately
      reflected the law.

             In particular, the Court stated[:]

                   As judges of the facts, you are the sole judges
             of the credibility of the witnesses and the witnesses’
             testimony.      This means you must judge the
             truthfulness and accuracy of each witness’ testimony
             and decide whether to believe all, part or none of
             that testimony.




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                The following are some of the factors that you
           may consider when judging credibility and deciding
           whether or not to believe testimony . . . .

                  Did the witness testify in a convincing manner?
           How did the witness look, act and speak while
           testifying? Was the witness’ testimony uncertain,
           confused, self-contradictory or evasive? . . .

                 How well does the testimony of the witness
           square with the other evidence in the case, including
           the testimony of other witnesses? Was the witness’
           testimony contradicted or supported by other
           testimony and evidence? Does the witness’
           testimony make sense to you?

                 If you believe some part of the testimony of a
           witness is inaccurate, consider whether the
           inaccuracy casts doubt upon the rest of the witness’
           testimony. This may depend on whether the witness
           has been inaccurate in an important matter or a
           minor detail and on any possible explanation. For
           example, did the witness make an honest mistake or
           simply forget, or did the witness deliberately falsify?

                 While you are judging the credibility of each
           witness, you are likely to be judging the credibility of
           other witnesses or evidence.          If there is a real
           irreconcilable conflict, it is up to you to decide which,
           if any, conflicting testimony or evidence to believe.
           As sole judges of credibility and fact, you are
           responsible to give the testimony of every witness
           and all other evidence whatever credibility and
           weight you think it deserves.

     (N.T. trial, May 7, 2013, at 220-222).

           In light of this instruction, trial counsel testified at the
     PCRA hearing that the Court “adequately, and in great detail,
     discussed what to take into account on witness credibility” and,
     therefore, he did not request a specific instruction on prior
     inconsistent statements. (PCRA hr’g tr., January 26, 2017, at 6).
     Taken in its entirety, the jury instruction on assessing credibility
     accurately reflected the law and adequately prepared the jury to

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      deal with potential inconsistencies between testimony the
      witness gave at trial and what he wrote in his earlier report even
      if it did not specifically refer to prior inconsistent statements.
      The jury was instructed that it was to consider aspects of the
      testimony and evidence that might have been contradictory and,
      in assessing potential inaccuracies in the testimony, it should
      consider whether the inaccuracy was in an important matter or a
      minor detail. Depending on its determination, the jury could
      give the testimony whatever weight and credibility was
      warranted.

            Nor is there any reasonable probability that the result
      would have been different had the instruction been requested
      and given. As stated in the instructions, the jury was to consider
      whether inaccuracies in any testimony related to important
      matters or minor details. The discrepancies in the details of the
      victim’s testimony and his prior written report relate to the
      precise location and sequence of events unfolding during a
      struggle between [Appellant] and three corrections officers in
      which [Appellant] was flailing his arms and legs, trying to climb
      over a railing outside his cell and resisting commands to return
      to his cell and get on the floor to be handcuffed.            Any
      inconsistency in exactly where the particular action in question
      occurred does not relate to any element of the Commonwealth’s
      case, nor was it asserted by trial counsel as a defense.
      Ultimately, any inconsistency would likely be seen as relatively
      minor, and there is nothing to suggest that the jury would have
      assessed the evidence differently had it been instructed on prior
      inconsistent statements.

Trial Court Opinion, 4/13/17, at 6-8.

      The trial court’s analysis is supported by the evidence of record. Thus,

had Appellant’s issue not been waived, we would find that it lacked merit

because Appellant has failed to establish all three prongs of an IAC claim.

Spotz, 84 A.3d at 311.

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

for failing to request an instruction concerning the concept of “false in one,


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false in all.” Appellant’s Brief at 15. Appellant again contends that counsel’s

reasons for failing to request the instruction cannot be deemed reasonable

and that Appellant was prejudiced. Id. Appellant further maintains that it

was “vitally important” that he received this instruction due to the fact that

some of the video evidence of the incident was of poor quality, and as a

result, the case boiled down to the credibility of the correctional officers and

Appellant. Id.

      “False in one, false in all” is a concept for assessing the weight of
      evidence. The maxim is simply a translation of the Latin phrase
      “falsus in uno, falsus in omnibus.” It currently means that a jury
      may disregard the testimony of a witness if the jury believes
      that witness deliberately, or willfully and corruptly, testified
      falsely about a material issue. The standard jury charge reads:

            If you decide that a witness deliberately testified
            falsely about a material point [that is, about a matter
            that could affect the outcome of this trial,] you may
            for that reason alone choose to disbelieve the rest of
            his or her testimony. But you are not required to do
            so. You should consider not only the deliberate
            falsehood but also all other factors bearing on the
            witness’s credibility in deciding whether to believe
            other parts of [his] [her] testimony.

Commonwealth v. Vicens-Rodriguez, 911 A.2d 116, 117–118 (Pa.

Super. 2006) (footnote omitted); Pennsylvania Suggested Standard Jury

Instruction (Crim) 4.15. In Vicens-Rodriguez, this Court further stated:

      It is true that the “false in one, false in all” charge is a proper
      statement of the law, and there is no harm if that charge is
      given. However, we do hold that when a full and complete
      charge is given on credibility, ... there is no error in failing to
      give the specific charge.

Id. at 120 (footnote omitted).

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      As the holding in Vicens-Rodriguez makes clear, to be entitled to

relief, Appellant must demonstrate more than the applicability of the “false

in one, false in all” instruction to the facts of the case. Under that authority,

Appellant must also establish the inadequacy of the jury instructions actually

given on matters addressed by the “false in one, false in all” instruction.

Appellant’s brief, however, contains no discussion whatsoever of the jury

instructions actually given, or their inadequacy in relation to the proposed

instruction.   A review of the instruction given reflects that a full and

complete charge on credibility was given. Thus, we find no error in the trial

court’s failure to give such a charge or counsel’s failure to request such

charge. Vicens-Rodriguez, 911 A.2d at 120.

      Moreover, counsel explained at the PCRA hearing that he decided not

to request this instruction as the court’s instruction adequately covered

consideration of witness credibility.     N.T., 1/26/17, at 6-7. Thus, trial

counsel had a reasonable basis for his actions, and as a result, Appellant

fails to establish the second prong of the IAC test. Spotz, 84 A.3d at 311.

      Furthermore, the trial court addressed Appellant’s claim as follows:

             For many of the same reasons [outlined in addressing
      Appellant’s first issue], [Appellant’s] claim that counsel was
      ineffective for failing to request an instruction on the concept of
      false in one, false in all also lacks merit.2 Additionally, it is
      notable that [Appellant] chose to testify at trial and that his
      testimony was contradicted by three corrections officers in both
      direct and rebuttal testimony. Had an instruction been given on
      false in one, false in all, it would have applied equally and most
      likely detrimentally to [Appellant]. Further, as with his previous


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      claim, [Appellant] has failed to demonstrate he was prejudiced
      by trial counsel’s asserted failure to request this instruction.

             2This instruction applies to willfully false testimony,
             not minor inconsistencies or simple lapses in
             memory.

Trial Court Opinion, 4/13/17, at 8.

      We agree with the trial court’s analysis.         Appellant has failed to

establish that if the “false in one, false in all” instruction had been given that

the outcome of the trial would have been different. Reed, 42 A.3d at 319.

Thus, Appellant has not established the prejudice prong of the IAC test.

Spotz, 84 A.3d at 311. Accordingly, Appellant’s claim of IAC on the basis of

his failure to request this jury instruction fails.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2017




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