J-S43018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

FRANK DONTE BOOKER

                            Appellant                 No. 1544 WDA 2016


            Appeal from the PCRA Order Dated September 20, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008090-2012
                                         CP-02-CR-0008338-2012
                                         CP-02-CR-0011318-2013

BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                          FILED OCTOBER 12, 2017

        Appellant, Frank Donte Booker, appeals pro se from the order

dismissing his petition filed pursuant to the Post-Conviction Relief Act

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

        On August 22, 2013, a jury convicted Appellant of third-degree murder

and related charges. Appellant filed a direct appeal in which he raised two

claims challenging the trial court’s jury instructions.        This Court stated,

“[b]oth issues are premised upon [Appellant’s] theory of the case that [two

individuals] attempted to rob him . . . and that he shot [one of the

individuals,] believing that his life was in danger.”      Commonwealth v.

Booker, 134 A.3d 107 (Pa. Super. 2015) (unpublished memorandum),
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-S43018-17


appeal denied, 131 A.3d 489 (Pa. 2016). Upon review, this Court affirmed

Appellant’s judgment of sentence based on our determination that Appellant

waived the two claims by not objecting when the trial court gave the jury

instructions.    Appellant filed a petition for allowance of appeal with the

Supreme Court.        After the Supreme Court denied the petition, Appellant

timely filed the underlying PCRA petition pro se.              See 42 Pa.C.S. §

9545(b)(3).

       The PCRA court appointed counsel to represent Appellant, and on

June 17, 2016, Appellant’s counsel filed a motion for leave to withdraw and

Turner/Finley brief in support of the motion.1 On July 14, 2016, the PCRA

court granted counsel’s request to withdraw his appearance and gave notice

of its intent to dismiss the PCRA petition. Appellant filed a pro se response

on September 19, 2016.             The PCRA court dismissed Appellant’s PCRA

petition on September 20, 2016.                Appellant filed a timely appeal on

October 7, 2016. The PCRA court issued its opinion on February 27, 2017

and the certified record was transmitted to this Court.

       On appeal, Appellant presents four issues in which he asserts the

ineffectiveness as trial counsel:

    1. Did the PCRA court err in rejecting without a hearing
       [Appellant’s] claim that trial counsel was ineffective for failing to
       lodge a timely and specific objection to the Court’s refusal to
       charge the jury on justification/self-defense?
____________________________________________
1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Finley v.
Pennsylvania, 550 A.2d 213 (Pa. Super. 1987) (en banc).


                                           -2-
J-S43018-17



   2. Did the PCRA court err in rejecting without a hearing
      [Appellant’s] claim that trial counsel was ineffective for failing to
      lodge a timely and specific objection to the Court’s refusal to
      charge the jury on the lesser-included offense of manslaughter?

   3. Did the PCRA court err in rejecting without a hearing
      [Appellant’s] claim that trial counsel was ineffective where she
      failed to provide a full consultation about [Appellant’s] right to
      testify, offered unreasonable advice to Petitioner not to testify,
      and thereby depriv[ed] [Appellant] of his right to testify and the
      right to a planned and coherent trial strategy?

   4. Did the PCRA court err in rejecting without a hearing
      [Appellant’s] claim that trial counsel was ineffective for failing to
      present Dr. Alice Applegate, Ph.D., an expert in forensic
      psychology, as a witness to support the “unreasonable belief”
      facet of the defense?

Appellant’s Brief at 7.

      Our standard of review is well-settled:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court’s decision on any grounds if
      the record supports it. We grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford
      no such deference to its legal conclusions. Further, where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      There is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that no


                                      -3-
J-S43018-17


genuine issues of material fact exist, then a hearing is not necessary.

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation

omitted), appeal denied, 956 A.2d 433 (Pa. 2008). However, a reviewing

court must examine 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 in denying relief

without an evidentiary hearing.   Commonwealth v. Springer, 961 A.2d

1262, 1264 (Pa. Super. 2008) (citation omitted).

     In all of his issues, Appellant claims his trial counsel was ineffective.

Our Supreme Court has stated:

     Counsel is presumed effective, and the petitioner bears the
     burden of proving otherwise. Commonwealth v. Roney, 622
     Pa. 1, 79 A.3d 595, 604 (2013). To prevail on an ineffectiveness
     claim, the petitioner must plead and prove, by a preponderance
     of the evidence, the Sixth Amendment performance and
     prejudice standard set forth in Strickland v. Washington, 466
     U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This Court
     has divided the performance component of Strickland into two
     sub-parts dealing with arguable merit and reasonable strategy.
     Commonwealth v. Baumhammers, . . . 92 A.3d 708, 719
     ([Pa.] 2014). Thus, to prevail on an ineffectiveness claim, the
     petitioner must show: that the underlying legal claim has
     arguable merit; that counsel had no reasonable basis for his or
     her action or omission; and that the petitioner suffered prejudice
     as a result. Id. (citing Commonwealth v. Pierce, 515 Pa. 153,
     527 A.2d 973, 975–76 (1987)).

Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014). In other words,

to satisfy his 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

                                    -4-
J-S43018-17


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 proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of

this test will result in rejection of the petitioner’s ineffective assistance of

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

Therefore, if a petitioner fails to prove by a preponderance of the evidence

any of the prongs, the court need not address the remaining prongs.

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

appeal denied, 990 A.2d 727 (Pa. 2010). Where the underlying claim is

meritless, “the derivative claim of ineffective assistance of counsel for failing

to object has no arguable merit.” Commonwealth v. Spotz, 47 A.3d 63,

122 (Pa. 2012).     Further, “counsel cannot be considered ineffective for

failing to pursue a meritless claim.” Commonwealth v. Lopez, 739 A.2d

485, 495 (Pa. 1999), cert. denied, 530 U.S. 1206 (2000).

      Consistent with the foregoing, we have reviewed the record and

determined that the PCRA court did not err in concluding that Appellant’s

claims of trial counsel ineffectiveness did not warrant relief.       The PCRA

court’s reasoning is supported by the record and free of legal error.        The

Honorable David R. Cashman, who sat as both the trial and PCRA court, has

ably addressed Appellant’s four claims, referencing prevailing precedents, as

well as the evidence presented at trial.        Accordingly, we adopt Judge


                                      -5-
J-S43018-17


Cashman’s opinion in affirming the order denying Appellant post-conviction

relief.     The parties are instructed to attach a copy of Judge Cashman’s

February 27, 2017 opinion to any relevant future filings.

          Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2017




                                     -6-
•'                                                        Circulated 09/12/2017 10:58 AM




        IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEALTH OF
                             PENNSYLVANIA
                          COUNTY OF ALLEGHENY


     COMMONWEALTH OF PENNSYLVANIA      CRIMINAL DIVISION
                                       CC No. 201208090; 201208338;
                                            201311318
                                       Superior Court No. 1544WDA2016

           vs.

     FRANK DONTE BOOKER
                                       OPINION

                                       JUDGE DAVID R. CASHMAN
                                       308 Courthouse
                                       436 Grant Street
                                       Pittsburgh, PA 15219
                                       (412) 350-3905


                                       Copies Sent To:

                                       Michael Streily, Esquire
                                         (Interoffice)
                                       Office of the District Attorney
                                       4th Floor, Courthouse
                                       Pittsburgh, PA 15219

                                       Frank D. Booker, #LJ8774
                                         (US Mail)
                                       SCI Fayette
                                       P.O. Box 9999
                                       LaBelle, PA 15450-0999
..
'


           IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEALTH OF
                                 PENNSYLVANIA
                             COUNTY OF ALLEGHENY
                               CRIMINAL DIVISION



     COMMONWEALTH OF PENNSYLVANIA) CC No. 201208090; 201208338
                                 )    201311318
             vs.                 ) Superior Court No. 1544WDA2016
     FRANK DONTE BOOKER                         )

                                        OPINION

            On August 22, 2013, following a jury trial, the appellant, Frank

     Booker, (hereinafter referred to as "Booker"), was found guilty of third degree

     murder, possession of a firearm without a license and three counts of

     recklessly endangering another person. Prior to the commencement of that

     jury trial, the charge of person not to possess a firearm was severed and

     heard by this Court in a non-jury trial in conjunction with his jury trial. This

     Court rendered a verdict of guilty with respect to that charge. A presentence

     report was ordered and on November 26, 2013, Booker was sentenced to a

     period of incarceration of not less than two hundred twenty-five to four

     hundred fifty months for his conviction of third degree murder, a consecutive

     sentence of incarceration of not less than sixty nor more than one hundred

     twenty months for his conviction of person not to possess a firearm, which

     sentence of incarceration was to be followed by a period of probation of seven

     years for his conviction of possession of a firearm without a license and three

     concurrent periods of probation for his convictions on the charges of

     recklessly endangering another person. Booker filed a timely appeal with the


                                            2
 Superior Court and that Court, on October 26, 2015, affirmed his judgment of

sentence.

       On February 8, 2016, the Supreme Court denied his request for an

allowance of appeal.   On March 11, 2016, Booker filed a prose petition for

post-conviction relief and Charles Pass, Esquire, was appointed to represent

him in connection with that petition.   On June 17, 2016, Pass filed a

Turner/Finley letter indicating that the claims sought to be raised by

Booker were without merit. This Court sent Booker a notice of intention to

dismiss his petition for post-conviction relief on July 13, 2016. Booker filed a

response to the notice of intention to dismiss on August 2, 2016 and after

reviewing the assertions set forth in that response, this Court denied his

petition without a hearing a on September 19, 2016. Booker then filed a

timely appeal to the Superior Court and was directed pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b) to file a concise statement

of matters complained of on appeal. In complying with that directive on

December 20, 2016, Booker raised four claims of error. Initially Booker

maintains that this Court erred in dismissing his petition without a hearing

as he believed that his trial counsel was ineffective for failing to lodge a

timely objection to this Court's refusal to charge the jury on the defense of

justification. Booker next ma,intains that his trial counsel was ineffective for

failing to object to this Court's refusal to charge on the lesser included offense.

of manslaughter.   Booker further maintains that his trial counsel was



                                        3
    'l

.
         ineffective in provide a full consultation with him with respect to his right to

         testify. And, finally, Booker maintains that his trial counsel was ineffective

         in failing to present the testimony of Dr. Alice Applegate as a witness in.

         support of the unjustifiable belief that the use of deadly force was necessary

         with respect to his claim of the defense of justification.

                The facts of Booker's case were set forth in this Court's original

         Opinion in connection with his direct appeal to the Superior Court as follows:


                              On May 11, 2012, the victim, Calvonne Rollins,
                (hereinafter referred to as "Rollins"), picked up his girlfriend, Tamira
                Scheuermann, at work and drove to the Get Go gas station located in
                Penn Hills where they were to meet some other people. Rollins was
                driving and Scheuermann was the front seat passenger and the one·
               year-old son that she had with Rollins was in a car seat in the middle
                of the back seat. At the Get Go station they met up with James
               Ingram whom they knew and Frank Booker, whom they had never met
               before. Ingram asked Rollins to give him a ride back to his house so
               that he could get his phone charger and he got into Rollins' vehicle.
               Since they did not know Booker, they left him at the Get Go gas
               station.
                       Rollins drove Ingram to his house and they agreed to meet a
               little while later so all of them could smoke some marijuana. Later
               that day they met up with Gerald Brown and they smoked the
               marijuana. Rollins decided to go back to the Get Go station and was
               traveling along Coal Hollow Road when they ran into Ingram who was
               leaving his girlfriend's house who asked them to give Booker a ride and
               he would pay for it. They met up with Booker a short time later and
               he agreed to pay for the ride to go to Blackadore Street. Booker was
               seated directly behind Rollins in the left rear passenger seat. When
               they approached the intersection of Blackadore and Ravina, Rollins
               stopped the car. Scheuermann, who was on the phone, thought that
               Booker was going to pay Rollins for the jitney ride since he was
               fiddling with something inside of his hoodie. Booker then pulled a
               silver gun and put it to Rollins' head and told him to "give it up".
               When Brown saw the gun, he opened the right rear passenger door and
               ran from the car. Rollins attempted to swat the gun away from Booker
               and Scheuermann grabbed his wrist in an effort to get it away from


                                                 4
       Booker. Rollins then attempted to push Booker toward the open right
       rear door when Booker started to fire anywhere between five and six
       shots at Rollins. Booker then fled from the scene. The Escalade
       started to drift back down Blackadore until it hit another car and came
       to rest. Rollins then opened the driver's door and rolled out of the car
       and was lying on the ground. Scheuermann called 911 and requested
       the police and paramedics who arrived within ten minutes of that call.
        It is obvious that Rollins was in critical condition as a result of the life-
        threatening wounds that he received. When he was transported by the
       paramedics to Presbyterian-University Hospital, he had no pulse and
       was subsequently declared dead by the physicians who initially treated
       him at the hospital. No weapon was found on Rollins by the
       paramedics or the emergency room personnel who attempted to treat
       Rollins.
               In processing the Escalade, two bullet fragments were found,
       one in the driver's door and the other one in the driver's footwell. It
       was determined that the bullet fragments were the same caliber and
       although they had similar markings, the criminalist who examined
       these fragments was unable to determine if they had been fired from
       the same weapon because one of the fragments was so small.
               Brown and Scheuermann were interviewed that evening and
       told the Allegheny County Police that Booker was the shooter. The
       police prepared photo arrays for both Brown and Scheuermann and
       both of these individuals identified Booker as the individual who shot
       Rollins. An arrest warrant was issued for Booker and several weeks
       later, he was arrested in Williamsport, Pennsylvania.


       In his direct appeal to the .Superior Court, Booker raised claims that

this Court erred in failing to charge the jury on the defense of justification

and the lesser included offense of manslaughter.      The Superior Court, in

reviewing these claims, determined that they were waived since no specific

objection was made by Booker's trial counsel after this Court announced that

it would not charge on justification or manslaughter.     Booker has now raised

those claims on the basis that his trial counsel was ineffective for failing to

assert a timely objection to this Court's refusal to charge on justification and



                                         5
',




     manslaughter.    The claims of the ineffectiveness of his trial counsel provide

     Booker with a separate avenue for seeking to address those issues since the

     Supreme Court in Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564,

     573 (2005), recognized that the claim of the ineffectiveness of counsel is a

     separate claim from the underlying assertion that the Court erred in refusing

     to charge on specific issues.

                   What is clear from Immelmann and Molina is that
           ineffectiveness claims are distinct' from those claims that are raised on
           direct appeal. The former claims challenge the adequacy of
           representation rather than the conviction of the defendant.
           Accordingly, we are persuaded by Appellant's position that a Sixth
           Amendment claim of ineffectiveness raises a distinct legal ground for
           purposes of state PCRA review under § ·9544(a)(2). Ultimately, the
           claim may fail on the arguable merit or prejudice prong for the reasons
           discussed on direct appeal, but a Sixth Amendment claim raises a
           distinct issue for purposes of the PCRA and must be treated as such.
           Cf. Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 462 (2004)
           (noting alternatively that even if the ineffectiveness claim was not
           previously litigated, the severance theory underlying the claim of
           ineffectiveness fails for the same reason the Bruton v. United States,
           391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) theory failed on
           direct appeal). FNIO For these reasons, we believe that a PCRA court
           should recognize ineffectiveness claims as distinct issues and review
           them under the three-prong ineffectiveness standard announced in
           Pierce.FN11 Consistent with this standard, the petitioner must establish
           that: (1) the underlying 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 that counsel's deficient performance. Pi,erce, 527 A.2d at
           976-77.

                  FNlO. Furthermore, although in many cases the claim will be
                  dismissed for the reasons discussed on direct appeal, this is not
                                                                                         ,·.
                  a distinction without a difference, because it is a distinct,
                  constitutional claim that deserves its own analysis regardless of
                  the result of that analysis. Furthermore, we can envision
                  circumstances where a defendant may be entitled to relief on an



                                             6
'•



                   ineffectiveness claim attacking counsel's performance on direct
                   review.

                   FNll. Of course, an exception to this, which should rarely occur
                   following our decision in Grant, supra n. 9, would occur if a
                   claim of ineffectiveness was raised on direct appeal and a
                   claimant seeks to raise the same claim of ineffectiveness on
                   collateral review.

            The Pennsylvania Supreme Court in Commonwealth v. Collins,

     supra; recognized that there is a separate and distinct claim that is being
     asserted when the claim of the ineffectiveness is being made even as it

     pertains to an issue that has been previously litigated since the claim that is

     being raised is the stewardship of the petitioner's counsel which affects his

     rights under the Sixth Amendment and the United States Constitution,

     under Article I, Section 9 of the Pennsylvania Constitution. Although the

     basis for the claims of the ineffectiveness of Booker's counsel had been

     previously litigated in his direct appeal, it is the current contention of the

     ineffectiveness of his counsel with respect to those claims that provides

     Booker with the basis for asserting his current claims for relief under the

     Post-Conviction Relief Act.

           In reviewing a claim of ineffectiveness it is well settled that the law

     presumes that counsel was effective and that the petitioner asserting that

     claim of ineffectiveness bears the burden of proving it. Commonwealth v.

     Khalil, 806 A.2d 415 (Pa. Super. 2002). In Strickland v. Washington,

     466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States

     Supreme Court set forth the standards for the performance and prejudice for


                                             7
evaluating the conduct of counsel. These standards were adopted by the

Pennsylvania Supreme Court in Commonwealth v. Pierce, 515 Pa. 153,

527 A.2d 973 (1987), and require that a defendant prove a three-prong test,

the first being that the claim currently being asserted has arguable merit;

second, that counsel had no reasonable basis for his action or omission; and,

third, that the defendant was prejudiced by his counsel's conduct. In

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999), the

Supreme Court set forth the burden of proof imposed upon a petitioner in

establishing the claim of ineffectiveness.

      To show ineffective assistance of counsel which so undermined
      truth-determining process that no reliable adjudication of guilt or
      innocence could have taken place, postconviction petitioner must show:
      (1) that claim is of arguable merit; (2) that counsel had no reasonable
      strategic basis for his or her action or inaction; and, (3) that, but for
      the errors and omissions of counsel, there is reasonable probability
      that outcome of proceeding would have been different.


      It is axiomatic that counsel's assistance is presumed to be effective and

the petitioner has the burden of demonstrating otherwise. Commonwealth

v. Wright, 599 Pa. 270, 961 A.2d 119 (2008). In demonstrating counsel's

ineffectiveness the petitioner must prove that his underlying claim is of

arguable merit, that his counsel's performance lacked a reasonable basis and

that counsel's action or inaction caused him prejudice. Commonwealth v.

Gwynn, 596 Pa. 398, 943 A.2d 940 (2008). In order to demonstrate

prejudice, Booker must how that there is a reasonable probability but for

counsel's error, the outcome in his case would have been different.


                                        8
Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203 (2001). When it is

clear that a party asserting the ineffectiveness of his counsel has failed to

meet the prejudice prong of the ineffectiveness test, the claim may be

dismissed on that basis alone without ever making a determination as to

whether the other two prongs of the test had been met. Commonwealth v.

Rainey, 593 Pa. 67, 928 A.2d 215 (2007). Failure to meet any prong of the

test, however, would defeat an ineffectiveness claim since counsel is not

ineffective for failing to raise meritless claims. Commonwealth v.

Peterkin, 538 Pa. 455, 649 A.2d 121 (1994).

      With respect to the two claims of error regarding the ineffectiveness of

Booker's trial counsel for failure to object to this Court's refusal to charge the

jury on the defense of justification and on the lesser-included offense of

manslaughter, the Court's rationale on why those underlying claims had no

merit was previously set forth in its original Opinion and that rationale has

not changed.

             In his first claim of error, Booker maintains that when this
      Court refused to charge the jury on justifiable self-defense, it deprived
      him of a fair trial. In Commonwealth v. Antidormi, 84 A.3d 736,
      754 (Pa. Super. 2014), the Court set forth the standard in reviewing
      a claim that the charge given to a jury was in error.

               [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


                                         9
       discretion or an inaccurate    statement of the law is there
       reversible error.

Booker's claim of error is not with respect to the charge that was given
to the jury but the failure to give a specific charge on justifiable self.
defense. In Commonwealth v. Hairston, Pa. , 84 A.ad 657, 668
(2014), the Court set forth the principle that would apply in examining
a jury instruction.

      Defendants are generally entitled to instructions that they have
      requested and that are supported by the evidence.
      Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 607
      (2007); Commonwealth v. DeMarco, 570 Pa. 263, 809 A.2d 256,
      261 (2002) ("Where a defendant requests a jury instruction on a
      defense, the trial court may not refuse to instruct the jury
      regarding the defense if it is supported by evidence in the
      record."); Commonwealth v. Browdie, 543 Pa. 337, 671 A.2d 6681
      673-7 4 (1996) ("[W]e hold that a trial court shall only instruct
      on an offense where the offense has been made an issue in the
      case and where the trial evidence reasonably would support
      such a verdict."). We have explained that the reason for this rule
      is that "instructing the jury on legal principles that cannot
      rationally be applied to the facts presented at trial may confuse
      them and place obstacles in the path of a just verdict."
      Commonwealth v. Taylor, 583 Pa. 170, 876 A.2d 916, 925-26
      (2005) (quoting Commonwealth v. White, 490 Pa. 179, 415 A.2d
      399, 400 (1980)). A criminal defendant must, therefore,
      "establish that the trial evidence would 'reasonably support' a
      verdict based on the desired charge and may not claim
      entitlement to an instruction that has no basis in the evidence
      presented during trial." Id. (citing Commonwealth v. Carter, 502
      Pa. 4332 466 A.2d 1328, 1332-33 (1983)).

At the time of trial, the Commonwealth and Booker presented a total
of fourteen witnesses who established that Rollins was the driver of
the Escalade, Scheuermann was the front seat passenger, Brown was
the right rear passenger and Booker was the left rear passenger seated
directly behind Rollins. In between Brown and Booker was Rollins'
and Scheuermann's one year old son who was in a car seat. Not one of
these witnesses testified that Rollins had a gun and the only testimony
with respect to anybody in the car other than Booker having a gun,
was that Scheuermann had a gun a week after the shooting when she
believed she was being stalked by Booker and pulled a gun from her
purse. The investigating officers from Penn Hills Police Department


                                 10
and the Allegheny County Homicide Detectives believed that they may
have patted down Scheuermann and Brown but could not be certain of
that fact.

       In order to sustain a claim for justifiable self-defense, the
evidence must establish three elements. First, that the defendant
reasonably believed that he was in imminent danger of death or
serious bodily injury and that it was necessary then and there to use
deadly force against the victim to prevent such harm to himself.
Second, that the defendant was free from fault in provoking the
difficulty which ultimately resulted in the killing of another individual
and, third, that the defendant did not violate a duty to retreat.
Commonwealth      v. Samuel, 527 Pa. 298, 590 A.2d 1245 (1991).
The defense of justifiable self-defense has been codified in the Crimes
Code, Section 505, which provides as follows:

      § 505. Use of force in self-protection


      (a) Use of force Justifiable for protection of the person.-
      The use of force upon or toward another person is justifiable
      when the actor believes that such force is immediately necessary
      for the purpose of protecting himself against the use of unlawful
      force by such other person on the present occasion.

      (b) Limitations on justifying necessity for use of force.-·

      (1) The use of force is not justifiable under this section:

      (i) to resist an arrest which the actor knows is being made by a
      peace officer, although the arrest is unlawful; or

      (ii) to resist force used by the occupier or possessor of property or
      by another person on his behalf, where the actor knows that the
      person using the force is doing so under a claim of right to
      protect the property, except that this limitation shall not apply
      if:

      (A) the actor is a public officer acting in the performance of his
      duties or a person lawfully assisting him therein or a person
      making or assisting in a lawful arrest;

      (B) the actor has been unlawfully dispossessed of the property
      and is making a reentry or recaption justified by section 507 of


                                11
this title (relating to use of force for the protection of property);
or

(C) the actor believes that such force is necessary to protect
himself against death or serious bodily injury.

(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, except the actor is not
obliged to retreat from his dwelling or place of work, unless he
was the initial aggressor or is assailed in his place of work by
another person whose place of work the actor knows it to be.

(2.1) Except as otherwise provided in paragraph (2.2), an actor is
presumed to have a reasonable belief that deadly force is
immediately necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse compelled by
force or threat if both of the following conditions exist:

(i) The person against whom the force is used is in the process of
unlawfully and forcefully entering, or has unlawfully and
forcefully entered and is present within, a dwelling, residence or
occupied vehicle; or the person against whom the force is used is
or is attempting to unlawfully and forcefully remove another
against that other's will from the dwelling, residence or occupied
vehicle.

(ii) The actor knows or has reason to believe that the unlawful
and forceful entry or act is occurring or has occurred.

(2.2) The presumption set forth in paragraph (2.1) does not
apply if:

(i) the person against whom the force is used has the right to be
in or is a lawful resident of the dwelling, residence or vehicle,


                          12
 such as an owner or lessee;

(ii) the person sought to be removed is a child or grandchild or is
 otherwise in the lawful custody or under the lawful
 guardianship of the person against whom the protective force is
·used;

(iii) the actor is engaged in a criminal activity or is using the
dwelling, residence or occupied vehicle to further a criminal
activity; or

(iv) the person against whom the force is used is a peace officer
acting in the performance of his official duties and the actor
using force knew or reasonably should have known that the
person was a peace officer.

(2.3) An actor who is not engaged in a criminal activity, who is
not in illegal possession of a firearm and who is attacked in any
place where the actor would have a duty to retreat under
paragraph (2)(ii) has no duty to retreat and has the right to
stand his ground and use force, including deadly force, if:

(i) the actor has a right to be in the place where he was attacked;

(ii) the actor believes it is immediately necessary to do so to
protect himself against death, serious bodily injury, kidnapping
or sexual intercourse by force or threat; and

(iii) the person against whom the force is used displays or.
otherwise uses:

(A) a firearm or replica of a firearm as defined in 42 Pa.C.S. §
9712 (relating to sentences for offenses committed with
.firearms); or

(B) any other weapon readily or apparently capable of lethal use.

(2.4) The exception to the duty to retreat set forth under
paragraph (2.3) does not apply if the person against whom the
force is used is a peace officer acting in the performance of his
official duties and the actor using force knew or reasonably
should have known that the person was a peace officer.

(2.5) Unless one of the exceptions under paragraph (2.2) applies,


                          13
       a person who unlawfully and by force enters or attempts to enter
       an actor's dwelling, residence or occupied vehicle or removes or
       attempts to remove another against that other's will from the
       actor's dwelling, residence or occupied vehicle is presumed to be
       doing so with the intent to commit:

       (i) an act resulting in death or serious bodily injury; or

      . (ii) kidnapping or sexual intercourse by force or threat.

       (2.6) A public officer justified in using force in the performance
       of his duties or a person justified in using force in his assistance
       or a person justified in using force in making an arrest or
       preventing an escape is not obliged to desist from efforts to
       perform such duty, effect such arrest or prevent such escape
       because of resistance or threatened resistance by or on behalf of
       the person against whom such action is directed.

       (3) Except as otherwise required by this subsection, a person
       employing protective force may estimate the necessity. thereof
       under the circumstances as he believes them to be when the
       force is used, without retreating, surrendering possession, doing
       any other act which he has no legal duty to do or abstaining
       from any lawful action.

      (c) Use of confinement as protective force.-The
      justification afforded by this section extends to the use of
      confinement as protective force only if the actor takes all
      reasonable measures to terminate the confinement as soon as he
      knows that he safely can, unless the person confined has been
      arrested on a charge of crime.

      (d) Definition.--As used in this section, the term "criminal
      activity" means conduct which is a misdemeanor or felony, is not
      justifiable under this chapter and is related to the confrontation
      between an actor and the person against whom force is used.

        Booker did not testify and, accordingly, his state of mind would
have to be established by circumstantial evidence. Initially Booker
maintains that the evidence presented by the Commonwealth would
establish that two guns were in that vehicle since there were two
bullet fragments that were found in the vehicle, one in the driver's door
and one in the driver's footwell. Booker maintains that the
Commonwealth's expert, Deborah Tator, who examined the bullet


                                 14
fragments testified that they came from two different guns. A review
of her testimony clearly indicates that she never offered an opinion
that these bullets were fired from two different weapons. She testified
that she examined 'both bullet fragments and was able to make the
determination that they were of the same caliber and also suggested
that they came from two different manufacturers; however, they had
markings on both of them, which were consistent with each other.
When asked whether or not these bullets were fired from the same
gun, she could not offer an opinion on that because the second bullet
was such a small sample. The location of the bullet fragments also
militates against two guns since they were both found in the driver's
area. Dr. Shakir, who performed the autopsy, indicated that Rollins
had been shot three times from behind since the entry wounds were in
his back and the exit wounds were in his chest.

        As previously noted, the only testimony, which would establish
that somebody else had another gun, was that Scheuermann possessed
a firearm a week after the shooting, for which she had a valid license.
If she in fact had a firearm, it is inexplicable why Rollins would have
been shoot since he did not possess that firearm and there was no
testimony that Booker shot at either Scheuermann or Brown,

        Booker has suggested that Rollins must have had a firearm
since a month prior to this homicide, the back window of his Escalade
was shot out. In an attempt to explain why no one saw him with a
 gun, Booker has suggested that Scheuermann must have taken the
gun off of him along with his personal belongings, since he did not have
any when he was examined by the paramedics and she hid them in an
effort to hide what really took place in the Cadillac Escalade. The
proposed defense of justifiable self-defense was premised not upon
facts of record but, rather, was supposition and the inferences to be
drawn from those suppositions.
        In Commonwealth v. Mouzon, 617 Pa. 527, 53 A3d 738, 740-
 741 (2012), the Court was presented with a similar situation when the
Trial Court rejected Mouzon's claim of self-defense because he had not
established the basis for that defense. Like Booker, Mouzon did not
testify and, accordingly, the evidence that would be the predicate for
justifiable defense, would have been primarily based upon the
Commonwealth's evidence and the circumstantial evidence drawn
therefrom.

              By way of background, a claim of self-defense (or
      justification, to use the term employed in the Crimes Code)
      requires evidence establishing three elements: "(a) [that the


                               15
                 defendant] reasonably believed that he was in imminent danger
                 of death or serious bodily injury and that it was necessary to use
                 deadly force against the victim to prevent such harm; (b) that
                 the defendant was free from fault in provoking the difficulty
                 which culminated in the slaying; and (c) that the [defendant] did
                 not violate any duty to retreat." Commonwealth v. Samuel, 527
                 Pa. 298, 590 A.2d 1245, 1247-48 (1991). See also Commonwealth
                  v. Harris, 550 Pa: 92, 703 A.2d 4411 449 (1997); 18 Pa.C.S. §
                 505.FN2 Although the defendant has no burden to prove self-
                 defense, see discussion below, before the defense is properly in
                 issue, "there must be some evidence, from whatever sourcs.fo
                 justify such a finding." Once the question is properly raised, "the
                 burden is upon the Commonwealth to prove beyond a reasonable
                 doubt that the defendant was not acting in self-defense."
                 Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627, 630 (1977).
                 The Commonwealth sustains that burden of negation "if it
                 proves any of the following: that the slayer was not free from
                 fault in provoking or continuing the difficulty which resulted in
                 the slaying; that the slayer did not reasonably believe that [he]
                 was in imminent danger of death or great bodily harm, and that
                 it was necessary to kill in order to save [him]selftherefrom; or
                 that the slayer violated a duty to retreat or avoid the danger."
                 Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506, 507 (1980).

         There was no evidence presented as to the defendant's state of mind or
         what an individual's state of mind would have been had they been in
         the position that Booker found himself. There was no evidence to
         conclude that anyone in the Cadillac Escalade, other than Booker, had
         a weapon. There was no evidence of a fight or altercation between
         Booker and Rollins nor was there any evidence which one could
         reasonably infer that it was then and there necessary for Booker to use
         deadly force to repel an attack being perpetrated against him by his
         victim. In light of Booker's failure to point to evidence from which one
         could reasonably conclude that he was in fear of serious bodily injury
         or death, the claim of justifiable defense was rejected and this Court
         properly refused to charge on that purported defense.

                  Booker next maintains that this Court erred when it failed to
          charge on a lesser-included offense of voluntary manslaughter.
          Voluntary manslaughter! is defined in the Pennsylvania Crimes Code
          as follows:
                  § 2503. Voluntary manslaughter

1
    18 Pa.C.S.A. §2503(a) and (b).


                                           16
       (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.

When reviewing.the record in the instant case, it is clear that there
was no basis upon which the charge of voluntary manslaughter should
have been submitted to the jury. As previously noted, Booker's actions
were not as a result of justifiable self-defense but, rather, an
intentional killing occurred during the commission of an attempted
robbery. There is nothing in the record, which would establish that
Booker was acting under a sudden and intense passion resulting from
serious provocation or that negligence. or an accident caused the death
of Rollins. In Commonwealth v. Scott, 73 A.3d 599, 602 (Pa.
Super. 2013), the Court noted that a Court is not required to give
every instruction requested but, rather, should only instruct the jury
on the issues that have been joined between the Commonwealth and
the defense.

              In reviewing a jury charge, we are to determine "whether .
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case." Commonwealth
      v. Brown, 911 A.2d 576, 582-83 (Pa.Super.2006). In so doing, we
      must view the charge as a whole, recognizing that the trial court
      is free to use its own form of expression in creating the charge.
      Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa.Super.2001).
      "[Our] key inquiry is whether the instruction on a particular
      issue adequately, accurately and clearly presents the law to the
      jury, and is sufficient to guide the jury in its deliberations." Id.
      It is well-settled that "the trial court has wide discretion in


                                17
                fashioning jury instructions. 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
                appellant was prejudiced by that refusal." Brown, 911 A.2d at
              583.


       The issue of voluntary manslaughter never arose since there was
       insufficient factual basis to establish that Booker killed Rollins in a
       heated passion or did so with the unjustifiable belief of a right of self·
       defense. This Court charged the jury based upon the facts of record
       and limited those issues for its consideration to first-degree murder,
       second-degree murder and third-degree murder. As with Booker's first
       claim of error' this current contention had no merit.


Since the underlying claims had no merit, Booker's trial counsel could not

have been ineffective for failing to object to this Court's refusal to charge on

his claims.

      Booker's next claim of error is that his trial counsel was ineffective for

failing to counsel him properly on his right to testify. The fallacy of this

claim of ei:ror is demonstrated by the colloquy that this Court undertook with

Booker with respect to his right to remain silent or to testify, which is

contained in pages two hundred twenty-six through two hundred thirty-two

of the trial transcript. In that colloquy this Court advised Booker of the

charges that had been filed against him and the maximum penalties that

could be imposed upon him should he be convicted of those charges. The

Court also advised him that under the Constitutions of the United States and

the Commonwealth of Pennsylvania, he had an absolute right to remain

silent. Booker was also advised that if he exercised his right to remain silent,



                                        18
and should he request the appropriate jury instruction, the jury would be

instructed that they could not infer guilt from his decision not to testify nor

could they draw any inference adverse to him as a result of his decision not to

testify. This Court further advised Booker that he had an absolute right to

testify and if he would testify then he would have been subjected to a cross-

examination as to any and all matters that might touch upon his direct

testimony. Booker was also advised of his right to present character

testimony and if he presented such testimony, the Commonwealth had the

right to attempt to impeach that testimony by his convictions of other crimes.

Booker was asked whether or not he had sufficient time to discuss the

question of whether or not he should he testify with his counsel and he said

that he·did and also understood that his counsel could not make this decision

for him and that his decision not to testify was a free and voluntary decision.

Booker acknowledged that he had no drugs or alcohol within forty-eight

hours prior to making this decision nor did he suffer from any mental illness

which would have prevented him from making that decision.

       It is abundantly clear that Booker understood his right to testify and

his right to remain silent. It is also clear that if in fact his counsel suggested

that he· not testify, there was a legitimate reason for him not to testify since

his testimony could have been impeached by his 2000 convictions for

burglary, theft by unlawful taking and theft by deception. In addition, he

had a conviction for the unauthorized use of a motor vehicle in 2010 and in



                                        19
.,




     2011 he had a conviction for criminal attempt to commit criminal trespass.

     Booker knew of these convictions and his counsel was also well aware of them

     and it would have been a reasonable strategy to suggest that he not testify

     since these convictions would be used to impeach any evidence that he might

     have attempted to educe with respect to his state of mind and belief that he

     had the defense of justification and also, whether or not he acted in the heat

     of passion or an unjustifiable belief of the right of self defense which would

     have entitled him to the charge of manslaughter.             It is abundantly clear that

     Booker was well aware of his right to testify and he, and he alone, made the

     decision not to testify.

            Booker's final contention of error is that his trial counsel was

     ineffective for failing to present the testimony of Dr. Alice Applegate as a

     witness in support of his claim of a defense of justification. In

     Commonwealth v. Rivera, 631 Pa. 67, 108 A.ad 779, 791-792 (2014), the

     Supreme Court set forth the elements necessary to establish the reasonable

     belief that deadly force is needed to protect oneself from death or serious

     bodily injury as follows:

            Germane to whether the defendant reasonably believed it was necessary to kill to
            protect from imminent death or great bodily harm, our case law has recognized
            two requisite components to a defendant's state of mind: (1) the defendant's
            subjective belief that he had an honest, bona fide belief that he was in imminent
            danger, to which expert testimony is admissible; and (2) the objective
            measurement of that belief, i.e., the reasonableness of that particular belief in light
            of the facts as they appear, to which expert testimony is inadmissible. Sepulveda,
            55 A.3d at 1125-26; Commonwealth v. Sheppard, 436 Pa.Super. 584, 648 A.2d
            563, 568 (1994).

            Assuming, for purposes of discussion, that there is arguable merit to Appellant's


                                                  20
..

     claim, we conclude that he has failed to satisfy the remaining prongs of the
     ineffectiveness test. First, we decline to hold that it was unreasonable for trial
     counsel to present Appellant's testimony in support of a self-defense claim in the
     absence of corroborative expert testimony. As noted cogently by the
     Commonwealth, it is not beyond the purview of a layperson to comprehend that
     Appellant may have reasonably believed that his life was in danger when he was
     being chased by an unidentified man in the middle of the night after an altercation
     in a parking lot. See N.T., Aug. 7, 2008, at 694 (where trial counsel sets forth the
     defense theory in closing argument that "you have a situation of [Appellant] being
     chased by a man he doesn't know, seconds after a fight and gunshots are fired").
     See also e.g., Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 781 (1998)
     (holding that there was no need for expert testimony to demonstrate that a victim
     would experience fear and terror when he is being brutalized and suffocated).

     We understand Appellant's argument that it would have furthered trial counsel's
     strategy of presenting him as a credible witness if counsel had portrayed him as an
     individual suffering from mental illness who, due to his PTSD, subjectively
     viewed Officer Wertz's unarmed pursuit as a threat requiring the use of deadly
     force. It cannot be ignored, however, that Dr. Blumberg's diagnosis of PTSD did
     not exist at the time of trial, and was not rendered until 2011, five years after the
     murder. Significantly, as detailed infra at 804-06 (discussing Appellant's claim of
     ineffectiveness for failing to present mental health mitigation evidence during the
     penalty phase of trial), Appellant, in fact, had been evaluated by a defense mental
     health expert prior to trial who did not opine that Appellant suffered from PTSD
     or any disorder affecting the subjective reasonableness of his belief that deadly
     force was required.! Accordingly, Appellant's real contention is that he is now
     dissatisfied with the conclusions of the defense mental health expert that his
     counsel retained for trial. As espoused infra at 809-10, trial counsel was effective
     in retaining a mental health expert prior to trial and preparing him to testify on
     Appellant's behalf, and was not required to seek out a second mental health expert
     to provide a different opinion more favorable to his client. Moreover, to the extent
     that Appellant contends trial counsel was ineffective for failing to provide his own
     mental health expert with the requisite information to enable him to conclude that
     Appellant suffered from PTSD, this claim is belied by the record, as demonstrated
     in our discussion of his related penalty phase claim. Id.

     Additionally, the PCRA court's conclusion that no prejudice resulted from trial
     counsel's failure to present expert testimony is supported by the record and is free
     from legal error. Even assuming the reasonableness of Appellant's belief that he
     was in imminent danger, this Court held on direct appeal that Appellant failed to
     satisfy the remaining requisites for justification because he acknowledged that he
     could have retreated safely, instead of employing deadly force, and was the initial
     aggressor in the encounter by firing his weapon in a crowded parking lot. See
     Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 55 (2012) (rejecting the claim
     that trial counsel was ineffective for failing to present mental health evidence to
     lessen his culpability from first degree murder to voluntary manslaughter under



                                           21
.~

             the theory of imperfect self-defense because it had already been established that
             Appellant initiated the encounter and acknowledged that he could have avoided
             the whole incident by retreating safely).~



      There is no need to present expert testimony if a reasonable person believed

      that his or her life was in danger or believed that the situation they were in

      made it necessary to use deadly force to protect himself or herself.

      The problem with this particular contention, however, is that there is no

      basis for suggesting that he had a reasonable belief. Booker did not testify,

      his state of mind was never placed at issue, the facts of the case were such

      that he was the aggressor, be was the one that had the weapon and he was

      the one that was attempting to commit a robbery since he placed a gun at the

     victim's head initially and demanded the victim's money. What Booker was

      attempting to do was establish the facts through a proposed expert since he

     . decided not to testify. It should also be noted that Dr. Applegate did not

     testify during the trial, she testified at sentencing and not once through her

     testimony did she ever make reference to an unjustifiable belief that Booker

     had in the commission of these crimes. Rather, she attempted to present

     mitigating testimony with respect to his sentencing. She described him as

     mentally retarded since her psychological tests revealed that he had an IQ of

     fifty-five, that he was anti-social, and that he felt like he was being victimized

     by other people. She also indicated that he would have a difficult time in

     certain situations in establishing right from wrong.




                                                 22
     (   .
..

                    It is abundantly clear that this claim of error is not predicated upon a

             claim of ineffectiveness but, rather, on Booker's desire to have that expert

             testimony substituted for his own on his state of mind when he knew that his

             testimony would be filled with challenges as a result of his numerous prior

             convictions.

                                  BY THE COURT:




             DATED:         February 2\, 2017




                                                   23
