J-S03021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
 TYRELL O. BISHOP                        :
                                         :
                    Appellant            :   No. 3460 EDA 2017

               Appeal from the PCRA Order October 18, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004691-2007


BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                            FILED MARCH 06, 2019

      Appellant, Tyrell O. Bishop, appeals from the order entered on October

18, 2017, denying his petition under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      We have previously summarized the facts underlying Appellant’s

convictions.

        On April 30, 2004, at approximately 8:00 p.m., Philadelphia
        police detectives responded to a shooting on the 2100 block
        of South 64th Street in Philadelphia and discovered the body
        of Robert Coates (hereinafter “Decedent”) lying face down on
        the sidewalk with several gunshot wounds. Detective John
        Hoyt approached an extremely upset man who he identified
        as Reginald Christopher Coates, Decedent’s brother
        (hereinafter “Coates”). Coates informed the officers that he
        had witnessed the entire incident and frantically screamed for
        officers to find the shooter, “Rell,” who was identified as
        Appellant. . . .

        Officers removed Coates from the scene in order to calm him
        down and to obtain more information about the shooting.
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       Coates explained that he knew Appellant from the
       neighborhood[,] as Appellant lived across the street from
       Decedent’s home, where Coates had been staying for several
       months. Coates shared that he saw Appellant on a regular
       basis and gave the officers a description of Appellant as being
       5’10” in height, having a light complexion and slightly large
       ears, and wearing a white t-shirt and jeans.

       Prior to the shooting, Coates was walking home as his car
       broke down just around the corner from Decedent’s house.
       On his way there, Coates was approached by Appellant’s
       uncle, Robert Keyser, who tried to sell Coates a CD player for
       money to buy beer. After Coates refused to buy it, Keyser
       continued to ask Coates for money and the two men began
       to argue. The heated dispute escalated when Keyser pulled
       out a knife and Coates threatened to get a firearm.

       As the men became more agitated, Decedent noticed the
       fight and came out of his house. Concerned for his brother,
       Decedent told Coates to get into his house, and Decedent
       approached Keyser to address the situation. As Coates was
       leaving the scene of the argument, he turned back and saw
       Appellant suddenly jump off the steps of his house across the
       street and raise his arm to Decedent.         Coates noticed
       Decedent’s children were in front of Decedent’s house and
       rushed to protect them and get them inside. When Coates
       heard gunshots, he turned around and saw Decedent [lying]
       facedown on the ground. Coates watched as Appellant stood
       over Decedent and shot him several times in the back.
       Appellant immediately fled the scene on foot.

       After officers took Coates to the homicide unit and showed
       him a photo array that included a picture of Appellant, Coates
       identified Appellant as the individual who shot his brother.
       Kyle Napper, another witness to the shooting, also gave a
       statement to police that Appellant was responsible for the
       shooting. Although Napper did not identify Appellant in a
       photo array, Napper testified that he knew Appellant from the
       neighborhood and knew where he lived.

       Appellant was not apprehended until January 25, 2007 when
       Darby Borough police officers arrested him during the
       execution of a search warrant at a home in Darby,
       Pennsylvania. When officers entered the residence, three

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          black males jumped out the first floor windows of the home.
          When police pursued one of the males, he was violent and
          punched one of the officers in the face and body. This male
          was taken into custody where he gave police a false name of
          Michael Rucker. After the officers discovered it was in fact
          Appellant, they contacted Philadelphia police detectives who
          transported him back to Philadelphia to be tried for
          Decedent’s murder.

Commonwealth v. Bishop, 38 A.3d 914 (Pa. Super. 2011) (unpublished

memorandum) at 1-4, appeal denied, 46 A.3d 715 (Pa. 2012).

        Appellant’s first trial ended in a mistrial, after the jury was unable to

reach a unanimous verdict. See Trial Court Order, 1/26/09, at 1. Appellant’s

second trial commenced on April 26, 2010. On April 30, 2010, the jury found

Appellant guilty of third-degree murder and possessing instruments of crime.1

On July 16, 2010, the trial court sentenced Appellant to serve an aggregate

term of 22 ½ to 45 years in prison for his convictions. We affirmed Appellant’s

judgment of sentence on November 9, 2011 and the Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal on May 16, 2012.

Commonwealth v. Bishop, 38 A.3d 914 (Pa. Super. 2011) (unpublished

memorandum) at 1-10, appeal denied, 46 A.3d 715 (Pa. 2012).

        On August 23, 2012, Appellant filed a timely, pro se PCRA petition and

the PCRA court later appointed counsel to represent Appellant during the

proceedings. Within Appellant’s amended petition, Appellant claimed that his

trial counsel was ineffective for failing to present the testimony of witness

Charletta Haynes and a statement from Philadelphia Police Officer William Hill.

____________________________________________


1   18 Pa.C.S.A. §§ 2502(c) and 907(a), respectively.

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Appellant noted that Ms. Haynes testified on his behalf during his first trial –

which ended in a mistrial. As Appellant claimed, during the initial trial:

         [Ms. Haynes] testified to seeing two males (not one)
         approach and shoot [D]ecedent. She also testified that she
         was twice unable to identify [Appellant] as one of the
         potential shooters (once in the photo array, and then again
         in a lineup). As an uninterested eyewitness, her testimony
         was certainly critical to the jury’s deadlock.

Id. at 5.

      Further, Appellant claimed, during the first trial, trial counsel “elicited

[a] statement [from Officer Hill that] . . . there were two males involved in

the shooting (not one)” and that, on the same night as Decedent’s murder,

there was a “retaliatory shooting” that occurred a few blocks away. Id.

      Appellant claimed that his trial counsel was ineffective for failing to

present the testimony of Ms. Haynes and the statement from Officer Hill during

the second trial and for altering the strategy during the second trial, when the

initial trial strategy resulted in a mistrial. See id. at 1-8.

      On October 18, 2017, the PCRA court held a hearing on Appellant’s

petition. During the hearing, the PCRA court heard testimony from Appellant’s

trial counsel, Marit Michelle Anderson, Esquire (hereinafter “Attorney

Anderson”). N.T. PCRA Hearing, 10/18/17, at 5. Attorney Anderson testified

that she represented Appellant during both the first and second trials. Id. at

6. She testified that, during Appellant’s initial trial:

         Our strategy was to say that it was not [Appellant] that shot
         the [Decedent], and the Commonwealth couldn’t make their
         case out, basically. We attacked the identifications of the


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        [D]ecedent’s brother, of Kyle Napper, the guy coming up the
        street, and we also presented Charletta Haynes as an
        alternative defense witness to say that it was, in fact, not
        somebody who was involved in the argument or in that area
        of the argument that had done the shooting but there were
        two gentlemen who had come from around the corner and
        shot the [D]ecedent.

Id. at 8-9 (some internal capitalization omitted).

      Attorney Anderson testified that, after the first trial ended in a hung

jury, she wrote a letter to some of the jurors and “inquired whether [any juror]

would be willing to speak” about the jury deliberations. Id. at 18. Attorney

Anderson testified that one juror agreed to speak with her; the juror informed

Attorney Anderson “that it was 11 to 1 for guilty on first degree murder but

there was one young woman who was a holdout because she identified with

[Appellant] as being similar in age to her brother and so she held out and

hung the jury.” Id.

      In preparation for the second trial, Attorney Anderson testified that she

spoke with Appellant about the planned trial strategy “[m]any times.” Id. at

19. She testified that she and Appellant:

        decided that we were not going to go with the same theory
        as the first case, that, instead, we would, basically, admit
        that it was somebody that was related to the uncle or the
        uncle, himself, which was kind of the theory of the first case,
        that it was the uncle who did the shooting, but we were going
        to – because Kyle Napper had testified that the person had
        run into their mother’s house and because [Appellant] had a
        brother, Antonio, who also lived at that location and also had
        been found hiding in a closet by the police when they were
        looking for [Appellant], . . . that we were going to, basically,
        say that Antonio was the one who did it but also try to bring
        into the trial aspects of maybe an imperfect self-defense to
        show that [Decedent] and/or [Decedent’s] brother had

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         instigated more violence into the situation than what they
         were saying.

Id. at 19-20.

      As Attorney Anderson testified, they decided to change the trial

strategy:

         Because in speaking with my partner, as well as with
         [Appellant], in consultation, we thought the strategy from the
         first trial didn’t actually work very well, that it was 11 to 1 for
         guilty on first degree murder, which this case seemed to be
         since it was four shots to the body, and the identification by
         the brother was pretty hard to deal with, since they knew
         each other and lived across the street from each other and
         that we thought that if we had changed the strategy, there
         was a new [assistant district attorney] that was trying the
         case, that we could somewhat surprise him with our defense,
         as well as potentially get a third degree murder verdict if they
         felt, if the jury felt that [Decedent] and/or his brother may
         have instigated this violence in some way, even if they didn’t
         believe our theory that Antonio Bishop[, Appellant’s brother,]
         was the one who actually did the shooting.

Id. at 20-21.

      As Attorney Anderson testified, she did not present testimony from

Charletta Haynes during the second trial because Ms. Haynes’ testimony did

not fit the new trial strategy and because “[Ms. Haynes] was a horrible witness

and was not very credible.”          Id. at 21.   Specifically, Attorney Anderson

testified, during the first trial:    “the District Attorney cross-examined [Ms.

Haynes] into looking, basically, like a fool, that she was really high and wasn’t

able to see much of anything because she was crouched down next to the car,

things of that nature.” Id.




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      Attorney Anderson also testified that she did not present the statement

from Officer Hill during the second trial because Officer Hill’s statement was

“that the person arrested in the second shooting that night . . . met the

description of the male running with [Appellant] in the first shooting.” Id. at

31.   Attorney Anderson testified that this statement was prejudicial to

Appellant because it “indicated that [Appellant] was [] running from the first

shooting.” Id. at 32.

      Appellant also testified during the PCRA hearing. Appellant testified that

he agreed with the initial trial strategy. However, and in contrast to Attorney

Anderson’s testimony, Appellant testified that he “ma[d]e it clear to” Attorney

Anderson and her partner that he wished “to stick with the first strategy at

the second trial.” Id. at 51.

      At the conclusion of the hearing, the PCRA court held that Appellant was

not entitled to post-conviction collateral relief, as Appellant failed to prove that

Attorney Anderson lacked a reasonable basis for pursuing the particular trial

strategy. Id. at 86-88. Appellant filed a timely notice of appeal. He raises

one claim on appeal:

         Did the PCRA court err in holding [trial] counsel had a
         reasonable basis to switch trial strategy between
         [Appellant’s] first and second trial?

Appellant’s Brief at 2 (some internal capitalization omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

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circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffective assistance of counsel which, in

the circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      We note that counsel is presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”       Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).          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
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has

explained:

        A claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief.                 See
        Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
        (“if a petitioner raises allegations, which, even if accepted as
        true, do not establish the underlying claim . . . , he or she
        will have failed to establish the arguable merit prong related
        to the claim”). Whether the facts rise to the level of arguable
        merit is a legal determination.

        The test for deciding whether counsel had a reasonable basis
        for his action or inaction is whether no competent counsel
        would have chosen that action or inaction, or, the alternative,
        not chosen, offered a significantly greater potential chance of
        success. Counsel’s decisions will be considered reasonable if
        they effectuated his client's interests. We do not employ a

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        hindsight analysis in comparing trial counsel's actions with
        other efforts he may have taken.

        Prejudice is established if there is a reasonable probability
        that, but for counsel’s errors, the result of the proceeding
        would have been different. A reasonable probability is a
        probability sufficient to undermine confidence in the
        outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

internal quotations and citations omitted). “A failure to satisfy any prong of

the test for ineffectiveness will require rejection of the claim.” Id.

      Further,

        Under the applicable standard of review, we must determine
        whether the ruling of the PCRA court is supported by the
        record and is free of legal error. The PCRA court's credibility
        determinations, when supported by the record, are binding
        on this Court. However, this Court applies a de novo
        standard of review to the PCRA court's legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (internal citations

omitted).

      Appellant claims that the PCRA court erred in finding that Attorney

Anderson had a reasonable basis for altering the trial strategy between the

first and second trials. According to Appellant, “[t]he strategy employed at

[Appellant’s] first trial, which resulted in a mistrial, was supported by the

evidence[; t]he strategy employed at [Appellant’s] second trial was not

supported by the evidence and implicated [Appellant].” Appellant’s Brief at

11. This claim fails. As the PCRA court thoroughly explained at the hearing,

Attorney Anderson’s trial strategy during the second trial was indeed




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“supported by the evidence” and was reasonable under the circumstances.

The PCRA court explained at length:

        So really what we are here to look at is did [Attorney
        Anderson] have any reasonable basis in choosing to proceed
        with a different defense the second time. . . .

        [Attorney Anderson] testified why the first strategy was
        utilized and in that testimony, she stated that it was the
        two-person -- we will call it the two-person defense. There
        were some bits and pieces from some of the statements to
        indicate that maybe more than one person was present.
        There was only one shooter, more than one person was
        present when the shooting occurred.

        There was more than one shooter, one, and, two, one of the
        descriptions matched [Appellant] but there was a suggestion,
        because of Miss Haynes' testimony, that the shooters came
        from around the corner, that [Appellant] was already present
        and it couldn't have been him.

        That defense was presented and along with that defense, it
        was necessary to then cross-examine Detective Spotwood as
        to descriptions of it being [] possibly two persons present, to
        cross-examine or try to get in any information from Police
        Officer Hill's statement, which was hearsay. I wouldn't have
        allowed it in anyway, but that there was a second incident
        related to the first where someone was shot and it was
        possibly the second person present with the shooter that was
        shot, so all of that came in and the jury could not reach a
        decision but the most telling, I guess, fact in this whole
        hearing is that [Attorney] Anderson reached out to the jury
        and juror number 9 responded and then juror number 9 gave
        her information. The reason she reached out to the jury is to
        get this information to decide how to proceed going forward.

        The information returned was that the jury was 11 to 1 for
        guilty of murder of the first degree and that there was only
        the one person, who would not reach a decision in the case,
        indicated that she identified with [Appellant] because he
        reminded her or he was very much like her brother.



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       Armed with that information, [Attorney] Anderson made the
       decision, along with her partner, that their defense was just
       not a good defense. It was not viable, but for happenstance,
       [Appellant] would have been found guilty of first degree
       murder.

       Moving forward and looking into the evidence, the attorneys
       decided together that they needed to use a new strategy.
       Looking over all of the testimony and evidence, they decided
       that that strategy was that it was not [Appellant] but it was
       [Appellant’s] brother who was the shooter.

       They didn't come up with that out of thin air. [Attorney]
       Anderson testified what her reasons were and her partner's
       reasons were for choosing this alternative strategy.

       She testified that since Mr. Napper testified that the shooter
       ran in [Appellant’s] mother's house, which was a very salient
       fact in the case, one, that the defense had to deal with, and
       since the police found [Appellant’s] brother, Antonio, hiding
       in the closet, . . . and since [Appellant] and his brother,
       Antonio, were close in age, and since their body build was
       similar, and since they could be mistaken if you were to view
       them from the back, which one witness did, the brother of
       the decedent, Reginald Coates, they made a decision that
       that would be a better strategy than the first strategy and
       [Attorney] Anderson acknowledged that [Appellant] did not
       wish to take an offer. There was an offer to third degree
       murder for 20 to 40 years. That clearly this case was a first
       degree murder case. The victim was shot two times close
       range in the front and then when the victim fell, was shot
       close range two more times in the back. So the stakes were
       high in this case for the defense.

       [Attorney] Anderson also testified that there was a different
       assistant district attorney was going to try this case and that
       they believed there would be an element of surprise if they
       changed the strategy, as well, maybe throwing the ADA off
       because the ADA would have read through the notes from the
       first trial and would have been ready to use what they could
       from the first trial and, also, there was a decision made
       between [Attorney Anderson and her partner] that they
       would use certain evidence to show that it was the
       [D]ecedent and the [D]ecedent's brother – more so the

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       [D]ecedent's brother that were instigators in this matter,
       even though they could not ask for a self-defense charge or
       voluntary manslaughter based on the evidence as it would
       come out even under the best of circumstances, they could
       at least get to the jury the suggestion that it was the
       [D]ecedent and the [D]ecedent's brother who instigated this
       matter in the first place and would also give a reason for
       [Appellant’s] brother, Antonio, to then retaliate, as well. He
       would have as much reason to do that, because it was his
       uncle too, as would [Appellant].

       Base[d] on this new strategy, [Attorney] Anderson testified
       she would not call Miss Haynes. Miss Haynes, one, first of
       all, primarily was not needed for this defense and, two, she
       watched Miss Haynes during the first trial and, in her words,
       Miss Haynes was a . . . horrible witness.            That on
       cross-examination Miss Haynes indicated that she was in a
       crouching position, couldn't see anything, that she was high
       on Xanax and on alcohol and that she was dismantled on
       cross-examination, basically. Furthermore, that Miss Haynes
       was not cooperative during the first trial. She was hard to
       find and she was hard to get to court.

       [Attorney] Anderson testified that [she] and her partner
       discussed the new strategy with [Appellant], that, at first,
       [Appellant] was reluctant because he didn't want to say that
       his brother, Antonio, did it because he didn't want to get his
       brother in trouble but that both attorneys explained to
       [Appellant] that it would be highly unlikely that if the jury
       were to believe his version of events and he were to be found
       not guilty, that the Commonwealth would ever proceed
       against his brother because there was no evidence against
       his brother.

       [Attorney] Anderson testified that eventually [Appellant]
       came around and agreed with the strategy and that had
       [Appellant] not agreed with the strategy, she would not have
       presented it because, logically speaking, had she gone
       forward, her and her partner, and presented a strategy that
       [Appellant] didn't agree with, [Appellant], who has the
       constitutional right to testify, could take the stand and testify
       completely adversely to the defense and her word, implode,
       the entire case.


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       [Attorney] Anderson testified she saw [Appellant] seven
       times, that she took notes each time. Her notes are admitted
       into evidence. Her notes show that there was a discussion
       regarding the alternative strategy or the new strategy which
       was going to be used in the second trial.

       I am reading a quote here. This is from January 19, 2010.
       Put this on Antonio and mistaken I.D. as to [Appellant], same
       height, build, age. Napper sees shooter running toward
       house. Police search 5312 Reinhard and find Antonio hiding
       in the closet. Knew – this was the witness, Reginald Coates
       – knew [Appellant] had a gun from three weeks before. Saw
       person from behind, assumed it was [Appellant]. As far as
       Napper, too far away, drunk, rear view only, not described
       tattoos on arms because person not light skinned and it goes
       on and on.

       That is an example how in-depth the conversation was
       between the attorneys and [Appellant] regarding this
       strategy. [Appellant] testified that he agreed with the
       strategy of the first trial. The second trial, he didn't think the
       strategy made sense. He didn't think there was enough
       evidence to support the theory, although the court just read
       all the evidence in that the attorneys went over with
       [Appellant] during the interview at the prison and that the
       lawyers told him either you take 20 to 40 or we are
       proceeding with the defense. He testified that they did tell
       him about juror number 9, that they never talked about Miss
       Haynes and that he told them he wanted to stick with the first
       defense.

       [I]t is the petitioner's burden to show by a preponderance of
       the evidence that trial counsel lacked a reasonable basis for
       pursuing his trial strategy. . . . So the petitioner would have
       to prove by a preponderance of the evidence that an
       alternative not chosen offered a potential for success
       substantially greater than the course actually pursued and
       that just has not been shown in this particular case. The
       strategy chosen for the first trial almost landed [Appellant] in
       jail for the rest of his life and that is the alternative strategy
       that [Appellant] is talking about.

       You can't just view this in hindsight based solely on the fact
       that [Appellant] was found guilty. You really need to look at

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           everything in this particular case, and when the court views
           everything that occurred when you talk about the first trial,
           the second trial and listened very carefully to the testimony,
           [the PCRA] court credits the testimony of the defense
           attorneys in this particular case and finds that the behavior
           of [Attorney Anderson], considering the totality of all the
           circumstances present here, was reasonable. . . .

N.T. PCRA Hearing, 10/18/17, at 77-88 (some internal capitalization omitted).

         We agree with the PCRA court’s cogent and thorough analysis and

conclude that the court did not abuse its discretion when it determined that

Appellant’s ineffective assistance of counsel claim failed, as Appellant did not

prove that “the particular course of conduct pursued by [Attorney Anderson]

did not have some reasonable basis designed to effectuate [Appellant’s]

interests.” See Stewart, 84 A.3d at 707. Appellant’s claim on appeal, thus,

fails.

         Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/19




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