J-S19008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES E. STYLES

                            Appellant                  No. 876 EDA 2014


               Appeal from the PCRA Order entered March 6, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0014913-2009


BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 20, 2015

        Appellant, James Styles, is serving a prison sentence for his conviction

of firearms offenses.       He appeals from an order denying relief under the

PCRA.1 On appeal, he argues the PCRA court erred in denying a new trial

based on after-discovered evidence and ineffective assistance of counsel.

We affirm in part, vacate in part, and remand.

        At trial, the Commonwealth presented the testimony of
        Philadelphia Police Officer Javier Montanez. On October 2, 2009,
        at approximately 10:15 p.m., Officer Montanez was on patrol in
        the area of 29th and Flora Streets, in the [C]ity and [C]ounty of
        Philadelphia, Pennsylvania. While driving southbound on 29th
        Street, he observed a crowd of approximately twenty-five (25)
        people on the corner of 29th and Flora Street[s], standing
        outside a bar called “Sarah’s Place.”

____________________________________________


1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
J-S19008-15


     Officer Montanez saw Appellant standing “at the lower step of
     the bar,” pointing a silver handgun at a group of females about
     twenty (20) feet away. Officer Montanez witnessed Appellant
     fire the gun “toward the waistline and leg area of the females.”
     The officer testified that he heard the gunshot, and saw a
     “muzzle flash.”

     After the gunshot, Officer Montanez immediately parked and
     exited his patrol car with his gun drawn. By this time, a crowd
     of people w[as] chaotically running toward him. Among this
     crowd was Appellant, who was “speed walking” in the officer’s
     direction as though “not acknowledging that [the [O]fficer]
     actually saw him discharge the firearm at the females.” Officer
     Montanez ordered Appellant to the ground, “placed [his] knee
     . . . on [Appellant’s] waistline,” reached into Appellant’s right
     waistband, and recovered the gun. The firearm was loaded with
     six live rounds in its magazine and one round in the chamber.[1]
     After placing Appellant under arrest, Officer Montanez recovered
     a spent shell casing outside the bar, at the same location from
     which Appellant fired the gun. Forensic evidence established
     that the gun had discharged this shell casing.[2]

       [1] The parties stipulated that the certified record, from
       the Pennsylvania State Police, states that Appellant had no
       license to carry a firearm on October 2, 2009.

       [2] The Commonwealth presented the testimony of
       Gamilia Marshal, who is a Firearms Examiner for the
       Philadelphia Police Department. Appellant stipulated that
       Ms. Marshal is qualified as an expert in “firearms
       identification,” and she testified “to a reasonable degree of
       scientific certainty” that the shell casing was discharged
       from the gun recovered from Appellant.

     Officer Montanez further testified that the three females, at
     whom he saw Appellant shoot, ran up to him and screamed:
     “[h]e just shot at me. He just shot at me.” These females were
     Precious Leverette, Shakea Johnston, and Thomika Thomas.

     Precious Leverette testified at trial.[3] She claim that she, her
     cousin (Thomika Thomas), and her friend (Shakea Johnston),
     together went to “Sarah’s Place” on October 2, 2009. At some
     point in the evening[,] a fight broke out and the bar’s owner,
     “Ms. Sarah,[] told everyone to leave . . . because there was too
     much complication in the bar.” While the three females made
     their way to the exit, Appellant began “pushing [Ms. Thomas],

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     telling her [to] move, bitch, hurry up bitch.” Upon hearing this,
     Ms. Leverette confronted Appellant, who “started pushing” her
     and calling her a bitch. When Ms. Leverette exited the bar, and
     after being pushed by Appellant “about four times,” she
     “grabbed [Appellant] and threw him towards a black truck.”

       [3] Ms. Leverette originally lied to police, telling them her
       name was Precious “Taylor.” She claimed she had given
       this false name because she lives in the neighborhood
       where the incident occurred, and feared the consequences
       of cooperating with the police. She feared, in particular,
       being labeled a “snitch.”

     In response to being thrown against the truck, Appellant pulled a
     gun from his waistband, pointed it towards Ms. Leverette’s feet,
     and fired. Ms. Leverette testified that the bullet missed her
     because Ms. Johnston had grabbed her from behind and pulled
     her away. After the gunshot, Ms. Leverette and her companions
     ran, “going zigzag” around cars because Ms. Leverette believed
     Appellant would shoot again.

     Ms. Leverette’s testimony differs in some respects from that of
     Officer Montanez. Officer Montanez testified that Appellant and
     Ms. Leverette testified they were “face to face.”          Officer
     Montanez further testified that he recovered the gun from
     Appellant’s right waistband while Appellant was face-first on the
     ground, but Ms. Leverette testified that Appellant had placed the
     gun on the ground in compliance with the [O]fficer’s orders. In
     other words, Ms. Leverette claimed that Officer Montanez did not
     recover the gun from Appellant’s waistband.[4]

       [4] Furthermore, on cross-examination, Ms. Leverette
       testified she did not see Officer Montanez arrive until after
       the shot was fired. She also testified that she originally
       tried to flee the scene, but was stopped by police.

     The defense presented the testimony of Ernestine Savage and
     Tujunana Burgess, both of whom claimed to have been at
     Sarah’s Place at the time of the shooting. Ms. Savage testified
     that an argument broke out between Appellant and another
     female inside Sarah’s Place, which culminated outside the bar.
     Looking outside the bar’s front door, Ms. Savage saw “a lot of
     females surrounding [Appellant] . . . [.] They were on his back,
     like they were jumping him.” Ms. Savage heard a gunshot
     during the brawl, but she did not see Appellant with a gun.[5]


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         [5] On cross-examination, Ms. Savage testified that she
         had known Appellant for approximately fifteen (15) years
         and that she is his “close friend.” However, prior to trial,
         Ms. Savage never informed the police or “anyone” else
         that she had seen Appellant, her “close friend,” being
         assaulted by a group of females just prior to his arrest.

      Ms. Burgess, an “acquaintance” of Appellant who frequents
      Sarah’s Place, likewise testified that an argument broke out
      inside the bar, during which Appellant asked a female patron “to
      leave his cousin’s establishment because he didn’t want know
      trouble in there.” Although Ms. Burgess heard Appellant call the
      female a bitch, she never saw Appellant push or punch this
      individual. Rather, when Appellant stepped outside the bar, Ms.
      Burgess saw him talking to an unidentified male and “trying to
      apologize for calling the girls a bitch.”

      According to Ms. Burgess, when Appellant offered his apology,
      “[a] girl came up from behind and hit [him] in his head.”
      “[T]hen another girl came, and it was like a free for all, it was a
      fight.” While Appellant was under attack, still another “young
      lady,” who “wasn’t in the bar,” pulled out a silver gun. Appellant
      “wrestled” this woman for the gun, and “the next thing [Ms.
      Burgess] knew . . . the gun went off.”[6]

         [6] Ms. Burgess testified in part: “[Appellant] thought
         quick. We all could have been dead out there. One of us
         could have been killed. I’m glad he got the gun from her.
         I really am. Similar to Ms. Savage, Ms. Burgess never
         bothered to inform the police that Appellant had disarmed
         a dangerous individual, and that they arrested the wrong
         person.

PCRA Court Opinion, 8/11/14, at 2-6 (internal record citation omitted)

(emphasis in original).

      Police charged Appellant with three counts of aggravated assault and

recklessly endangering another person (REAP), and three violations of the




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Uniform Firearms Act (VUFA).2 The jury acquitted Appellant of aggravated

assault and REAP, but convicted him of two of the VUFA charges (carrying

without a license and carrying on a public street in Philadelphia).

Immediately following the jury trial, the trial court held a bench trial, and

convicted Appellant of persons not to possess firearms.       The trial court

sentenced Appellant to five to ten years in prison followed by five years of

probation. This Court affirmed the judgment of sentence on direct appeal.

Commonwealth v. Styles, 38 A.3d 908 (Pa. Super. 2011) (unpublished

memorandum).

       On March 2, 2012, Appellant filed pro se a timely first PCRA petition.

The PCRA court appointed counsel, who filed an amended and supplemental

petition. Over the Commonwealth’s objection, the PCRA court held hearings

on two days. The PCRA court later entered a final order denying Appellant’s

PCRA petition, and this appeal followed. Appellant filed a concise statement

as ordered, and the PCRA court issued an opinion under Pa.R.A.P. 1925(a).

       Appellant raises two questions for our review:

       1. Where the defense trial theory was that Appellant had acted
          in self-defense, which the jury believed [in] finding him not
          guilty on the assault charges, was the after-discovered
          evidence that his main accuser had lied to the police, showing
          a consciousness of guilt and raising an inference that she was
          the initial possessor of the weapon, did the lower [c]ourt err
____________________________________________


2
  18 Pa.C.S.A. §§ 2702, 2705, 6105 (persons not to possess firearms), 6106
(firearms not to be carried without a license), and 6108 (carrying firearms
on public streets or property in Philadelphia), respectively.



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          in finding that this newly discovered evidence, (which showed
          that Appellant lawfully possessed the weapon and was not
          guilty of the weapon’s [sic] possession offenses) was not
          sufficient to grant a new trial?

       2. Where Appellant was found guilty of weapons possession
          charges and the defense was that he had taken the weapon
          from another person who was attacking him, was [trial
          c]ounsel ineffective for failing to seek a duress instruction
          pursuant to 18 Pa.C.S. § 309 which would have justified his
          possession of the handgun and led to a not guilty verdict on
          the weapons charges?

Appellant’s Brief at 2.3

       Most PCRA appeals involve               mixed questions   of fact and law.

Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). Accordingly, we

defer to the PCRA court’s factual findings and credibility determinations that

are supported by the record. Commonwealth v. Medina, 92 A.3d 1210,

1214 (Pa. Super.) (en banc), appeal granted on other grounds, 105 A.3d

658 (Pa. 2014).        We review de novo, however, the PCRA court’s legal

conclusions. Id. “The scope of review is limited to the findings of the PCRA

court and the evidence of record, viewed in the light most favorable to the

prevailing party at the trial level.” Commonwealth v. Freeland, 106 A.3d

768, 775 (Pa. Super. 2014) (quoting Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014)). Stated succinctly, we may reverse only if the PCRA




____________________________________________


3
  Appellant has abandoned his third claim that trial counsel was ineffective
for failing to challenge the weight of the evidence.



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court’s factual findings are unsupported, or its legal conclusions are

erroneous. Id.

       First, Appellant contends he should receive a new trial based on after-

discovered evidence. He argues that Precious Leverette’s attempt to conceal

her identity reflects consciousness of guilt because it was actually her

handgun that Appellant took to keep her from shooting anyone. Appellant

points further to Leverette’s use of the surname Taylor 30 days after trial,

when she was arrested for an armed robbery.4

       The PCRA allows relief if a petitioner shows by a preponderance of the

evidence, “[t]he unavailability at the time of trial of exculpatory evidence

that has subsequently become available and would have changed the

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

§ 9543(a)(2)(vi) (emphasis added). An after-discovered evidence claim has

four components: the evidence (1) was discovered after trial and could not

have been obtained earlier through reasonable due diligence; (2) is not

corroborative or cumulative; (3) will not be used solely to impeach a

witness’s credibility; and (4) will likely cause a different verdict at a retrial.

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011). The test


____________________________________________


4
  Leverette eventually pled guilty to robbery by threatening immediate
serious bodily injury and criminal conspiracy at Docket No. CP-51-CR-
0010776-2010. That docket lists the offense date as June 29, 2010, several
weeks after Appellant’s June 2, 2010 trial.



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is conjunctive, i.e., a PCRA petitioner must meet all elements, or the claim

fails. Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012).

      The distinguishing feature of after-discovered evidence is that it exists

at the time of trial, but is not discovered until afterward. Here, Appellant

knew of Precious Leverette’s sur-nominal duplicity at trial. While testifying,

Leverette admitted to giving police a false name.        Indeed, in his brief,

Appellant quotes Leverette’s trial testimony, in which she admitted to

“switching” her last name.      See Appellant’s Brief at 16-17 (quoting N.T.

Trial, 6/2/10, at 116-17). Moreover, Leverette’s use of an alias when she

was arrested for armed robbery—which occurred after Appellant’s trial—

cannot   be   after   discovered   evidence.    After-discovered   evidence   is

exculpatory evidence that the defendant does not know exists at the time of

trial. Leverette’s use of a false name several weeks after trial cannot be

after-discovered evidence because that fact did not exist at the time of trial.

      The evidence supporting Appellant’s claim is not actually after-

discovered evidence. Because Appellant must meet all four elements of the

test for after-discovered evidence and he cannot, we need not address the

other three elements.      The PCRA court, therefore, did not err in rejecting

Appellant’s first claim.

      Second, Appellant      argues his trial   counsel rendered ineffective

assistance in not presenting a duress defense.      He contends trial counsel

should have argued to the jury and requested an instruction on duress,




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because Appellant was forced to take the handgun from Precious Leverette

so that she did not shoot anyone.

      The   PCRA   also   allows   relief   where   a   petitioner   proves   by   a

preponderance ineffective assistance of counsel that so undermined the

truth-determining process that no reliable adjudication of guilt could have

taken place. 42 Pa.C.S.A. § 9543(a)(2)(ii).             “[C]ounsel is presumed

effective, and in order to overcome this presumption, an appellant must

establish (1) that the underlying claim has arguable merit; (2) that counsel

had no reasonable basis for his action or inaction; and (3) that the appellant

has been prejudiced by counsel’s ineffectiveness.”           Commonwealth v.

Jones, 951 A.2d 294, 302 (Pa. 2008).          Like the test for after-discovered

evidence, the test for ineffective assistance of counsel is cumulative, and

failure to establish one of the three prongs is fatal to the claim. See id.

      The Crimes Code defines duress as follows:

      (a) General rule.--It is a defense that the actor engaged in the
      conduct charged to constitute an offense because he was
      coerced to do so by the use of, or a threat to use, unlawful force
      against his person or the person of another, which a person of
      reasonable firmness in his situation would have been unable to
      resist.

      (b) Exception.--The defense provided by subsection (a) of this
      section is unavailable if the actor recklessly placed himself in a
      situation in which it was probable that he would be subjected to
      duress. The defense is also unavailable if he was negligent in
      placing himself in such a situation, whenever negligence suffices
      to establish culpability for the offense charged.




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18 Pa.C.S.A. § 309. Section 309 (as opposed to the narrower common-law

test) is the proper test to determine whether the evidence supports a duress

defense. Commonwealth v. DeMarco, 809 A.2d 256, 261 (Pa. 2002).

        [T]o establish [duress], there must be evidence that: (1) there
        was a use of, or threat to use, unlawful force against the
        defendant or another person; and (2) the use of, or threat to
        use, unlawful force was of such a nature that a person of
        reasonable firmness in the defendant’s situation would have
        been unable to resist it.

Id. at 261-62. A defendant does not need to show that the force threatened

is of “present and impending death or serious bodily injury.”5 Id. at 262.
____________________________________________


5
    In its brief, the Commonwealth sets forth the test for duress as follows:

        The elements of duress are: (1) the immediate or imminent
        threat of death or serious bodily injury; (2) a well-grounded or
        reasonable fear that the threat will be carried out; and (3) there
        is no reasonable opportunity to escape the threatened harm
        except by committing the criminal act.

Appellee’s Brief at 12-13 (citing Commonwealth v. Hilburn, 746 A.2d
1146, 1148 (Pa. Super. 2000), and Commonwealth v. Baskerville, 681
A.2d 195, 200-01 (Pa. Super. 1996)). This three-part test, however, is the
common-law test for duress superseded by 18 Pa.C.S.A. § 309:

        As noted above, both lower courts in the instant case applied a
        stringent three-part test in determining whether the evidence
        was sufficient to support the duress defense. We conclude,
        however, that the three-part test applied by the lower
        courts is the wrong test for determining whether the
        evidence supports the duress defense. That test was the
        one followed at common law, which governed the law of duress
        prior to the enactment of 18 Pa.C.S. § 309 in 1972. See United
        States v. Anthony, 145 F. Supp. 323, 339-40 (M.D. Pa. 1956)
        (citing common law rule); see also Commonwealth v.
        Schwartz, 285 A.2d 154, 157 (Pa. 1971) (citing common law
        rule as law governing duress in Pennsylvania); 10 P.L.E. Criminal
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

      Law § 42 (1972) (same). When the General Assembly enacted
      Section 309, however, it abrogated the common law test, finding
      that it was too difficult for defendants to meet. See 18 Pa.C.S.
      § 309, cmt. (1972) (standard set forth in Section 309 liberalizes
      existing law which provides that the coercion must be immediate
      and induce a well-grounded fear of death or serious bodily
      injury); see also 18 Pa.C.S. § 105 cmt. (1972) (code “carefully
      defines crimes and defenses rather than leaving their definition
      to several centuries of common law”). Moreover, since the
      enactment of Section 309, this Court has repeatedly recognized
      that the test for determining whether the evidence supports the
      duress defense is the one set forth in the statute, rather than
      the common law test followed below. See Commonwealth v.
      Pelzer, 612 A.2d 407, 413-14 (Pa. 1992) [(Flaherty, J, Opinion
      in Support of Affirmance)]; Commonwealth v. Kyslinger, 484
      A.2d 389, 390-91 (Pa. 1984); Commonwealth v. Smith, 416
      A.2d 986, 988 (Pa. 1980); Commonwealth v. Santiago, 340
      A.2d 440, 446 (Pa. 1975); see also[] Pa. SSJI (Crim.) § 3.09.
      Accordingly, the trial court in the instant case committed an
      error of law by using the abrogated common law test to
      determine whether the evidence supported the duress defense
      here.

DeMarco, 809 A.2d at 261 (parallel citations omitted) (footnoted omitted)
(emphasis added).

As such, Hilburn and Baskerville are of questionable validity. In fact, the
root authority cited by Hilburn and Baskerville, is Commonwealth v.
Morningwake, 595 A.2d 158, 164 (Pa. Super. 1991). In Morningwake,
this Court applied the common-law duress test and held that duress was not
a defense to murder. Id. at 164. However, we did not acknowledge 18
Pa.C.S.A. § 309, and cited no Pennsylvania authority in support. Indeed,
the sole authority cited, Corpus Juris Secundum, now recognizes that
Pennsylvania does not follow the common law regarding duress. See 22
C.J.S. Criminal Law § 59 (2006 & Supp. 2014). Moreover, in DeMarco, our
Supreme Court “expressly disagreed” with the use of the common law test
for duress. DeMarco, 809 A.2d at 261 n.7. Finally, in Commonwealth v.
Markman, 916 A.2d 586, 607 & n.16 (Pa. 2007), the Supreme Court held
that duress is available as a defense to murder, thus abrogating
Morningwake’s second holding.



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      “A defendant is entitled to an instruction on any recognized defense

which has been requested, which has been made an issue in the case, and

for which there exists evidence sufficient for a reasonable jury to find in his

or her favor.” Commonwealth v. Lightfoot, 648 A.2d 761, 764 (Pa. 1994)

(Opinion Announcing the Judgment of the Court) (quoting Commonwealth

v. Weiskerger, 554 A.2d 10, 14 (Pa. 1989)). “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.”

DeMarco, 809 A.2d at 261.       Thus, a trial court abuses its discretion if it

refuses to give a requested instruction on any defense      supported by the

evidence.     See, e.g., id. (duress); Lightfoot, 648 A.2d at 764-65

(entrapment); Commonwealth v. Willis, 553 A.2d 959, 962 (Pa. 1989)

(alibi). If the record contains evidence supporting the defense, “it is for the

trier of fact to pass upon that evidence and improper for the trial judge

to exclude such consideration by refusing the charge.” DeMarco, 809 A.2d

at 261 (emphasis added). Inconsistencies in testimony and the credibility of

witnesses are not valid reasons to refuse to give a jury instruction on

duress. These items indicate only “that the jury might have disbelieved [a

defendant’s] duress testimony.”    Markman, 916 A.2d at 610 n.18.        “[A]n

instruction on a defense is not barred on the basis of a jury’s potential

disbelief.”   Id.   Regarding a defendant’s actions in placing himself in a

situation where he might be subject to duress,




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       it is the trier of fact that must determine whether the
       defendant acted recklessly. Thus, an appellate court will only
       affirm a trial judge’s removal of the duress issue from the jury
       on the basis of the recklessness exception where there can be no
       reasonable dispute that this exception applies.

Id. 608 (emphasis in original) (citing DeMarco, 809 A.2d at 262). In other

words, a trial court should refuse to instruct on duress only where the

evidence forecloses it as a matter of law. See id. at 609-10.

       We agree with Appellant that his claim has arguable merit.6          At trial,

Savage testified that some females began fighting inside the bar, that

Appellant asked them to leave, and that five to six females “jump[ed],”

punched, and kicked Appellant in the street. N.T. Trial, 6/2/10, at 134, 138-

41.    Burgess testified that Appellant asked a woman who caused a

“commotion” inside the bar to leave.               Id. at 148.   She said that when

Appellant was outside, a woman punched him in the back of his head. Id. at

149. A fight broke out, and Burgess saw a woman pull a gun, Appellant and

the woman “tussl[ed],” and the gun went off.             Id. at 149-50. Appellant’s

evidence—if believed—shows he was accosted by an armed Leverette, and

took the firearm in a struggle to prevent her from shooting him or anyone
____________________________________________


6
   We reject, however, the conclusions Appellant reaches from the jury’s
acquittal of aggravated assault and REAP. Appellant attempts to argue that
the jury’s partial acquittal shows it found Officer Montanez’s and Precious
Leverette’s testimony not credible, and that Appellant did not deliberately
fire the weapon into a crowd. Appellant’s Brief at 22, 27. Contrary to
Appellant’s argument, “[a partial] acquittal cannot be interpreted as a
specific finding in relation to some of the evidence.” Commonwealth v.
Carter, 282 A.2d 375, 376 (Pa. 1971).



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else.    Based on that evidence, trial counsel could have argued that

Leverette,   armed   with      a    handgun,      threatened   Appellant;   Appellant

reasonably feared for his safety; and Leverette’s threat was of such a nature

that a person of reasonable firmness in the defendant’s situation would have

been unable to resist it. That is, trial counsel could have argued that

Appellant    possessed   the       firearm   under   duress,   and   requested   jury

instruction on duress.

        To reject Appellant’s claim, the PCRA court improperly weighed the

evidence. The PCRA court posited that Appellant could have taken the gun

from Leverette, or thrown it onto a rooftop instead of firing the weapon.

Whether Appellant could have taken another course of action relevant to

duress is for the fact-finder to resolve.            The Commonwealth points to

evidence that Appellant possessed the firearm prior to discharging toward a

crowd of people. However, the record also contains evidence that Appellant

wrestled away the firearm from Leverette.               Although it is possible to

disbelieve the evidence supporting duress, determination of the credibility

and weight of the evidence are for the jury to decide. Where the defendant

puts forward evidence to support a duress defense, a trial court cannot

refuse to instruct the jury based on its determination that the evidence is

not credible.   See Markman, 916 A.2d at 607-08 (concluding trial court

erred in refusing instruction on duress where defendant testified that her co-

defendant battered her and threatened her with a knife if she did not

participate in kidnapping and murder).

                                         - 14 -
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      Additionally, the record contains conflicting evidence as to whether

Appellant recklessly placed himself into a situation where he would probably

be under duress.     The Commonwealth’s witnesses testified that Appellant

initiated the confrontation, while Appellant’s witnesses testified that a

woman and her companions did so.         The PCRA court accepted as true

evidence that Appellant was the initial aggressor. See PCRA Court Opinion,

8/11/14, at 10 (“Arguably, the defense of duress was not even available to

Appellant given his behavior in physically pushing and shoving Ms.

Thompson and Ms. Leverette, and addressing each of them as ‘bitch’.”).

“Notably, it is the trier of fact that must determine whether the defendant

acted recklessly.”    Markman, 916 A.2d at 608 (emphasis in original).

Therefore, the trier of fact should have determined whether Appellant was

indeed the initial aggressor, or whether Appellant’s witnesses credibly

testified that the victims started the fight. See id. at 609 (concluding trial

court erred in refusing duress instruction where record contained conflicting

evidence on the issue of whether the defendant was reckless).

      The Commonwealth’s cited cases are not persuasive.        As a general

proposition, it is true that a trial court does not abuse its discretion in

refusing an instruction unsupported by the evidence. See Commonwealth

v. Solano, 906 A.2d 1180, 1190 (Pa. 2006) (holding trial court properly

refused instruction on third-degree murder where evidence unequivocally

established first-degree murder).      In contrast, here Appellant placed

evidence on the record at trial that—if believed—supported duress.       Also,

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Commonwealth v. Pelzer, 612 A.2d 407, 414 (Pa. 1992) (Flaherty, J,

opinion in support of affirmance (OISA)),7 is not persuasive, because it is

distinguishable.    In Pelzer, the evidence foreclosed duress as a matter of

law: “[Pelzer’s] own assertions defeated any claim of duress, and there was

no other evidence supporting the defense, so it was proper for the trial

court to refuse to charge the jury on duress.” Id. at 414 (emphasis added).

Here, the record contains conflicting evidence as to whether Appellant

recklessly placed himself in a situation where he would likely be subject to

duress.

       We hold that Appellant’s claim of ineffective assistance of counsel for

failing to pursue a duress defense has arguable merit. We decline, however,

to reverse outright the PCRA court’s order. As Appellant concedes, the PCRA

court did not address whether trial counsel had a reasonable basis for not

____________________________________________


7
  It is questionable whether Pelzer is binding authority. In Pelzer, a capital
case, the Supreme Court, with only six justices participating, unanimously
affirmed Pelzer’s conviction but split 3-3 regarding the death sentence. As a
result, the court issued a per curiam order affirming the judgment of
sentence. Justice Flaherty wrote an OISA, and Chief Justice Nix and Justice
Zappala wrote opinions “in support of vacating sentence of death.” Thus,
the court voted unanimously to affirm the conviction, but Justice Flaherty’s
OISA represents the views of only three out of six participating justices.
Though Chief Justice Nix and Justice Zappala joined in part the OISA’s result
(affirming the conviction), they did not explicitly join in the opinion or its
reasoning.     Therefore, it appears that the OISA is non-binding.        Cf.
Commonwealth v. Holmes, 79 A.3d 562, 575 (Pa. 2013) (“A decision of
th[e Supreme] Court has binding effect if a majority of the participating
Justices joined the opinion.”) (emphasis added).



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pursuing a duress defense.         Appellant’s Brief at 26-28.      Nor did the PCRA

court    explicitly   address   prejudice      resulting   from   any   ineffectiveness.

Without analysis of the factual record (including of trial counsel’s testimony

at the hearing) by the PCRA court, we cannot determine whether it erred in

rejecting Appellant’s claim of ineffective assistance of counsel.                   Cf.

Commonwealth v. Montalvo, No. 678 CAP, 2015 WL 1888580, at *10,

2015 Pa. LEXIS 894, at *27 (Pa. Apr. 27, 2015) (vacating and remanding to

PCRA court for findings of fact, determinations of credibility, and legal

conclusions, where PCRA court did not issue opinion, making appellate

review impossible).       Accordingly, we will vacate in part the PCRA court’s

order. On remand, the PCRA court must analyze whether Appellant meets

the remaining prongs of the test for ineffective assistance of counsel (i.e.,

counsel’s basis for not pursuing a duress defense and resulting prejudice).8

The PCRA court may request additional briefing from the parties, if needed.

        In sum, we hold that Appellant’s claim of after-discovered evidence is

without merit and affirm that portion of the PCRA court’s order rejecting it.

We hold that Appellant’s claim of ineffective assistance of counsel has

arguable merit. Therefore, we vacate in part and remand to the PCRA court

____________________________________________


8
  The PCRA court tried Appellant without a jury on the charge of persons not
to possess firearms, i.e., for that charge, it was the fact-finder. Its opinion
appears to indicate that it disbelieved the evidence supporting duress. Any
such disbelief may be relevant on remand to the PCRA court’s prejudice
analysis as to the persons not to possess conviction.



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for additional findings regarding whether Appellant meets the other two

prongs of the test for ineffective assistance of counsel.

      Order affirmed in part and vacated in part.           Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2015




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