J-S63032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JEROME BANKS

                              Appellant               No. 2678 EDA 2015


                  Appeal from the PCRA Order August 24, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0008665-2007

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 19, 2016

        Appellant, Jerome Banks, appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying his first Post Conviction

Relief Act1 (“PCRA”) petition without an evidentiary hearing.       Appellant

contends trial counsel was ineffective for failing to preserve a weight of the

evidence claim. We affirm.

        On Appellant’s direct appeal nunc pro tunc, this Court summarized the

relevant facts of Appellant’s convictions for first-degree murder2 and

possessing an instrument of crime3 (“PIC”):


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S §§ 9541-9546.
2
    18 Pa.C.S. § 2502(a).
3
    18 Pa.C.S. § 907(a).
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          It is uncontroverted that [A]ppellant shot and killed the
       victim, Andre Johnson (the victim).          Commonwealth
       witness Carl Martin, a security guard on his way home
       from work, testified that, on May 12, 2007, at
       approximately 11:15 PM, he was ascending the stairs to
       the eastbound SEPTA Market-Frankford elevated station
       (El) at 52nd and Market Street[s] in the City and County of
       Philadelphia, when he heard two males, later identified as
       [A]ppellant and the victim, facing each other arguing.
       When he reached the E[l] platform, Martin heard two or
       three gunshots, looked down from the El platform and
       observed [A]ppellant standing close to the victim with his
       arm outstretched, a gun in his hand.          Appellant was
       saying, “You threatening me? You threatening me?” The
       victim appeared to be attempting to back away from
       [A]ppellant.    A few minutes later, Martin heard an
       additional two shots and saw the victim fall to the ground.
       Just then, a police patrol car rode by traveling northbound
       on 52nd Street. As the patrol car drove by, [A]ppellant
       raised his arms in the air, stating “self defense, self
       defense.” However, the patrol car did not stop. Appellant
       then walked to a nearby vehicle, got in, and drove away,
       traveling southbound on 52nd Street. Martin waited until
       the vehicle was gone, called 911, then came down from
       the El platform to check the victim. He observed two
       gunshot wounds on the victim, one to the right shoulder
       area and one to the stomach area. He searched the victim
       but did not find a weapon. Martin was taken to the
       Homicide Unit where he gave a statement consistent with
       his testimony.

           Commonwealth witness Robert E. Johnson, Sr., testified
       that he got off the El at 52nd and Market Street[s] and
       walked down the up escalator onto the southwest corner of
       52nd and Market. He observed two males, [A]ppellant
       who he identified in court, and the victim, who he knew
       from the area, holding a conversation. As he walked by,
       he heard the victim tell [A]ppellant, “So, I said, you know
       what, put a hit out on your butt.” Appellant responded,
       “What, you still talking stuff.” When Johnson was about
       twenty-five feet away, he heard three gunshots. He took
       cover, called 911 and looked back to see [A]ppellant facing
       west up Market Street. He heard two more shots, saw
       flashes from [A]ppellant’s hand, and observed the victim,


                                  -2-
J-S63032-16


       who had been out of his view, fall to the ground. Johnson
       then watched as [A]ppellant raised his hands as a police
       patrol car drove by. When the patrol car drove away,
       Johnson observed [A]ppellant get into a minivan and drive
       away. He was able to give a description of the vehicle and
       the tag number to the 911 operator. Johnson gave a
       statement to [h]omicide [d]etectives.

           Philadelphia Police Officers arrived at the scene at
       approximately 11:18 PM, to find the body of the victim,
       lying on the southwest corner of 52nd and Market
       Street[s], by the SEPTA elevated [escalator. Medics tried
       to revive the victim, but pronounced him] dead at the
       scene . . . . The medical examiner determined that the
       victim died of blood loss as a result of multiple gunshot
       wounds; a perforating gunshot wound to the chest that
       entered the right chest, traveled through the heart, the
       right lung, the aorta, and the left lung, then exited the left
       back, and a penetrating gunshot wound that traveled
       through the pelvis and into the left buttock where a bullet
       was retrieved. The bullet was turned over to the Firearms
       Identification Unit (FIU) for analysis.

          Meanwhile, in response to a radio call that the shooter
       involved in the incident at 52nd and Market Street[s]
       wanted to surrender, Police Officer Hector Rodriguez of the
       18th Police District went to the District Headquarters at
       55th and Pine Streets where he found [A]ppellant in a
       burgundy minivan with the flashers on.           As Officer
       Rodriguez removed [A]ppellant from the minivan and
       placed him in the police vehicle, [A]ppellant told Officer
       Rodriguez that he shot the victim, that it was self defense,
       that the victim put a hit out on him, and that they both
       were drunk. Appellant also told the Officer that his gun
       was in the vehicle, in the console between the two seats.
       A search of [A]ppellant’s person recovered a pocket knife,
       a six-round speed loader loaded with six live .357 rounds
       and an ankle holster. Appellant was placed in a police
       vehicle and transported to the Homicide Unit.




                                   -3-
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              After being Mirandized,[4] [A]ppellant gave Homicide
          Detective David Baker a statement indicating that he felt
          that his life was threatened because the victim told
          [A]ppellant that he had put a contract out on him.
          Appellant took the threat seriously. Appellant indicated
          that he lifted his shirt to show the victim that he was not
          carrying a gun and the victim became more aggressive.
          Appellant then retrieved his gun from the ankle holster and
          placed it in his pocket. The victim lunged at [A]ppellant
          and [A]ppellant shot him in his left leg then in his right leg.
          The victim made another step and called [A]ppellant a
          name. Appellant then shot the victim in his chest. He
          tried to get the attention of an officer who [rode] by in his
          patrol car, but when the officer did not stop, [A]ppellant
          decided to drive himself to the police station and called
          911 to let the police know. He drove to 55th and Pine
          Streets and put his flashers on. Appellant stated that he
          did not see the victim with a weapon, but he was
          “reaching” as if he had one. Appellant did not retreat
          because he thought he had no reason to, and because he
          had a gun. Appellant’s testimony at trial was substantially
          consistent with the statement he gave Detective Baker.

Commonwealth v. Banks, 2454 EDA 2011 (unpublished memorandum at

1-2) (Pa. Super. filed Jan. 29, 2013), appeal denied, 90 EAL 2013 (Pa. Aug.

29, 2013) (citation and internal footnotes omitted).

        At trial, Appellant testified on direct examination that he was

“hacking”5 at the corner of 52nd and Market Streets in Philadelphia on March

12, 2007, at around 10:30 p.m., when he encountered the victim and struck

up a conversation.    N.T. Trial, 1/7/08, at 134-35, 137.      The victim began


4
    Miranda v. Arizona, 384 U.S. 436 (1966).
5
 “Hacking” referred to Appellant’s working as an unlicensed taxi driver. N.T.
Trial, 1/7/08, at 130.




                                       -4-
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ranting to Appellant how people were in the victim’s business, and how he

killed people for “contracts.” Id. at 140-41. Appellant continued:

        [Appellant]. Okay. Just basically [the victim] finally had
        got to the point―after he was saying all this, he finally got
        to the point and said that he had put a contract out on me.
        And I said, Well, what did I do to you? He said, Don’t
        worry about it.

        [Appellant’s Trial Counsel6]. What was his tone of voice
        when he was saying that to you?

        A. Basically his expressions and his voice was high-
        pitched.

        Q. Did you feel threatened as a result of what he said to
        you?

        A. Basically, basically, when he first said that he had put a
        contract on me, I have to be honest, no, I did not believe
        him.

           But by me asking him and saying certain things,
        basically, I have to admit, I played along with him just to
        feel if it was the truth.

        Q. Okay. What did he say to you?

        A. When he said that he put a contract on me, I said,
        Yeah? He said that’s what he do. He do contracts.

           I said, You do contracts? He said yeah. He said it’s
        young boys who contracts. He said they’re going to do the
        job for him.

          I said, Yeah, they going to do it for free? He said, Don’t
        worry about that.


6
  Appellant was represented at trial by Douglas L. Dolfman, Esq. (“trial
counsel”).




                                    -5-
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          He said―I said, Well, I don’t know no young boys who
       do jobs for free.

          I’m basically playing with him.

                               *    *       *

       Q. All right. Go on. What happens next?

       A. And while he’s saying this in my face and by his facial
       expressions, tone of voice, and then he was spitting in my
       face, beings as though he had a missing tooth and I guess
       by he was drunk, as he was speaking, he was spitting in
       my face.

          And that’s when basically I started taking him serious.
       I had to ask him, I said, Dray, can you get out of my face?
       He kept on saying, yeah, well, yeah, something about to
       happen. It’s about to happen real soon.

       Q. Was Dray his nickname?

       A. Yes.

       Q. Go on.

       A. And when he kept going and I kept―I had told him.
       Basically I used the word. I told him to get the “F” out of
       my face. Then he just continued on. He said yeah, yeah,
       he said, don’t worry. It’s about to happen.

          At the time he just stepped two steps away from me,
       and then when he said that, for me, that put my level of
       awareness up. I have to look around. I’m not looking at
       him anymore. I’m letting him talk. Now I’m looking
       around both sides because to me that’s a sign of he’s
       about to set me up.

       Q. What did you see?

       A. What did I see? I seen four or five gentlemen come up
       from my left, and when they came up from my left, I
       recognized them because these was the same gentlemen
       which a year ago had broke into my car. . . .


                                   -6-
J-S63032-16



            When he approached me, when they came up, I was
         aware of them. They had a hoodie on their head, they had
         a baseball cap, and they had a hand in their pocket.

                                  *    *      *

         A. So when I seen they approach, when they came and
         approached me, I knew basically it was like a setup.
         That’s when I basically slipped from between Dray, and I
         literally went in the middle of the street. I said if they was
         going to try to make a move, I want everybody to see,
         traffic. So I literally ran in the street in between traffic.

         Q. Where did Dray go?

         A. Dray had backed up. That’s when he backed up back to
         the corner . . . and the other gentlemen, I seen them
         approach, went up the steps, the escalator. But by that
         time, which when they approached, I reached down and
         grabbed my weapon.

Id. at 148-52. Appellant testified he removed his firearm from a holster on

his left ankle and placed it in his pocket.       Id. at 152-53. The victim saw

Appellant and stated, “Yeah, here you go playing with guns. I’m not scared

of no guns.” Id. at 153.

      The victim then approached Appellant, and Appellant fired two shots at

the victim’s leg. Id. at 154.

         [Trial Counsel]. When you fired the two shots at [the
         victim], where were his hands?

         A. Oh, his hands constantly stayed in his pocket, yes.

                                  *    *      *

         Q. Did you ever see a weapon on him?

         A. No.


                                      -7-
J-S63032-16



Id. at 155-56.    Appellant testified that after the two shots, the victim

remained standing and “charged after” Appellant.     Id. at 158.      Appellant

then shot the victim in the chest. Id. After attempting and failing to flag

down a passing police car, Appellant called 911 and drove himself to the

local police station. Id. at 159, 162. Appellant told the 911 dispatcher that

he had shot the victim and still had his gun on him. Id. at 162-63.

     Appellant went on to testify that he had a permit to carry his firearm:

        [Trial counsel]. Did you have a permit to carry a gun?

        A. Yes.

                                 *    *    *

        Q. Okay. And what did you state on [your permit] was
        your reason for wanting a permit or reason for getting it?

        A. Basically I’m on disability as I speak of right now. I am
        a victim of a crime. My left arm is permanently damaged
        for the rest of my life. I lost all muscle. If they want to
        see my fingers, I have constant permanent nerve damage.
        I’m in pain 24/7. I suppose to be going to the pain clinic,
        but I stopped going to the pain clinic because I don’t
        believe in taking medication.

        Q. So what does it say on your permit for reason for
        getting it?

        A. Self-defense.

Id. at 164-65.

     On cross-examination, the Commonwealth questioned Appellant about

his police statement, which the Commonwealth read into the record:

        [Commonwealth]. I’m going to read it to you again.


                                     -8-
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           Question: When you first felt threatened by [the
           victim], why didn’t you just walk away or call 9-1-1?

           Answer: I basically had no reason to run. I didn’t
           do nothing to nobody, and I was protected by my
           gun. Really my mind told me that I shouldn’t run
           because, if I ran, people would think that I wouldn’t
           use my gun.

        Did I read that accurately as it’s typed there on that
        paper?

        A. Yes, you is correct.

        Q. Okay. And do you recall being asked that question by
        the Homicide detectives?

        A. Yes, you is correct.

        Q. And did you give them that answer as I just read it?

        A. Yes, you is correct.

        Q. So you told them that?

        A. Yes, you is correct.

Id. at 238-39.

     At the conclusion of trial, the court charged the jury on first-degree

murder, third-degree murder, and voluntary manslaughter.           The jury

convicted Appellant of first-degree murder and possessing an instrument of

crime (“PIC”).   The court sentenced Appellant on March 28, 2008, to life

imprisonment for murder, and a concurrent sentence of two and one-half to




                                    -9-
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five years’ imprisonment for PIC.    No timely post-sentence motions were

apparently filed.7

      On September 29, 2008, Appellant filed a pro se PCRA petition, in

which he alleged ineffective assistance of trial counsel. After filing a second

pro se petition, the court appointed Elayne Bryn, Esq. (“appointed counsel”),

to represent Appellant. Appointed counsel subsequently filed two amended

PCRA petitions and accompanying memoranda, which (1) alleged, inter alia,

trial counsel was ineffective for failing to preserve a weight of the evidence

claim and (2) requested reinstatement of Appellant’s rights to file a post-

sentence motion and direct appeal nunc pro tunc. Thereafter, on August 12,

2011, appointed counsel filed a motion to withdraw Appellant’s request to

file post-sentence motions nunc pro tunc citing this Court’s decision in

Commonwealth v. Barnett, 25 A.3d 371 (Pa. Super. 2011) (en banc).8


7
  Trial counsel sent Appellant a letter on May 30, 2008, informing him that a
post-sentence motion had been filed on his behalf. Although a review of the
record indicates a post-sentence motion and a request for appointment of
appellate counsel were entered on the docket on April 18, 2008, the trial
court informed Appellant on August 15, 2008, that no post-sentence motions
were filed on his behalf.      Furthermore, on June 11, 2008, this Court
apparently granted Appellant’s petition to withdraw an appeal, although the
circumstances giving rise to that order are unclear from the record.
8
   Barnett concluded that ineffective assistance of counsel claims could not
be raised on direct appeal absent a waiver of the defendant’s PCRA rights.
Barnett, 25 A.3d at 377. Our Supreme Court subsequently vacated that
decision and remanded the case to the trial court for further proceedings in
light of Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013).                See
Commonwealth v. Barnett, 84 A.3d 1060 (Pa. 2014).




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Appellant also withdrew his claim regarding trial counsel’s ineffectiveness for

failing to challenge the weight of the evidence.          The court permitted

Appellant to withdraw his ineffectiveness claims, and granted him leave to

file a notice of direct appeal nunc pro tunc.

      Appellant filed a notice of appeal nunc pro tunc on September 7, 2011.

This Court subsequently affirmed Appellant’s judgment of sentence on

January 29, 2013, holding that the evidence was sufficient to rebut his claim

of self-defense and sustain the convictions. Banks, 2454 EDA 2011 at 10.

Although Appellant also attempted to challenge the weight of the evidence,

which the trial court addressed in its Pa.R.A.P. 1925(a) opinion, this Court

found that claim was waived based on Appellant’s failure to preserve it in a

post-sentence motion. See id. at 11. Our Supreme Court denied allowance

of appeal on August 29, 2013.

      Appellant filed a pro se PCRA petition on September 26, 2013, and an

amended pro se petition on October 15, 2013, both of which alleged

ineffective assistance of trial counsel. The PCRA court appointed Dennis I.

Turner, Esq. (“PCRA counsel”), who filed an amended petition on March 1,

2015, alleging, inter alia, trial counsel’s ineffectiveness for failing to file a

post-sentence motion challenging the weight of the evidence.                 The

Commonwealth filed a motion to dismiss Appellant’s petition, and on July 28,

2015, the PCRA court issued notice of its intent to dismiss Appellant’s




                                     - 11 -
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petition without a hearing pursuant to Pa.R.Crim.P. 907.9       The PCRA court

subsequently dismissed Appellant’s petition on August 24, 2015. Appellant

timely filed a notice of appeal on August 31, 2015. The PCRA court ordered

Appellant to file a Rule 1925(b) statement, and Appellant timely complied.

      Appellant raises the following issue for our review:

         Whether the PCRA court violated paragraph (1) of Rule
         907 of Pa.R.Crim.P. by summarily dismissing [Appellant’s]
         PCRA petition without [an] evidentiary hearing, where
         there was a genuine issue of material fact as to whether
         trial counsel had a reasonable basis for failing to file a post
         trial motion to challenge the weight of the evidence in
         connection [with] “specific intent to kill”, where
         [Appellant’s] medical history of having previously been
         violently assaulted would have bolstered the credibility
         that [Appellant] believed it was necessary for him to use
         deadly force on that present occasion to protect himself
         from the use of unlawful deadly force against him by
         decedent, in support[] [of] his self defense claim?

Appellant’s Brief at 5.

      Appellant argues trial counsel was ineffective for failing to preserve a

weight of the evidence issue.    Id. at 13. Appellant contends trial counsel

failed to present evidence of Appellant’s medical history to support his self-

defense claim, which went to the weight of the evidence. Id. Specifically,

Appellant alleges his pre-sentence investigative report revealed he was


9
  Appellant responded pro se to the PCRA court’s Rule 907 notice on August
17, 2015. However, because PCRA counsel represented Appellant, his pro
se Rule 907 response violated the policy precluding hybrid representation
and could not be considered by the PCRA court. See Commonwealth v.
Jette, 23 A.3d 1032, 1036 (Pa. 2011).




                                     - 12 -
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stabbed and slashed with a box cutter in 2000, shot in the arm and side in

2001, and was involved in a serious car accident in 2002.      Id. at 18-19.

Appellant claims he suffers from post-traumatic stress disorder, substance

abuse, and chronic pain syndrome because of these events and has received

mental health treatment. Id. at 19.

     Appellant also avers his history of being assaulted affected his

perception of his encounter with the victim and is directly relevant to his

self-defense claim or a possible reduction in the grade of the offense. Id. at

19-20.   Appellant asserts the testimony of the Commonwealth’s witnesses

was consistent with Appellant’s perception that the victim threatened him

and caused him to fear for his life.   Id. at 20.   Appellant maintains trial

counsel lacked a reasonable basis for failing to raise a weight claim in a

post-sentence motion, and he suffered prejudice from trial counsel’s

inaction. Id. We conclude no relief is due.

     “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).          “[A] PCRA

petitioner is not automatically entitled to an evidentiary hearing. We review

the PCRA court’s decision dismissing a petition without a hearing for an

abuse of discretion.”   Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014) (citation omitted). Further, when the PCRA court denies relief



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without an evidentiary hearing, this Court must examine each of the issues

raised in light of the record to determine whether the PCRA court erred in

concluding there were no genuine issues of material fact.          Id. (citation

omitted).

        [C]ounsel is presumed to have provided effective
        representation unless the PCRA petitioner pleads and
        proves that: (1) the underlying claim is of arguable merit;
        (2) counsel had no reasonable basis for his or her conduct;
        and (3) Appellant was prejudiced by counsel’s action or
        omission. To demonstrate prejudice, an appellant must
        prove that a reasonable probability of acquittal existed but
        for the action or omission of trial counsel. A claim of
        ineffective assistance of counsel will fail if the petitioner
        does not meet any of the three prongs. Further, a PCRA
        petitioner must exhibit a concerted effort to develop his
        ineffectiveness claim and may not rely on boilerplate
        allegations of ineffectiveness.

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (quotation

marks and citations omitted).

     As to Appellant’s claim that trial counsel was ineffective for failing to

preserve a weight of the evidence claim,

        [i]t is well settled that the jury is free to believe all, part,
        or none of the evidence and to determine the credibility of
        the witnesses, and a new trial based on a weight of the
        evidence claim is only warranted where the jury’s verdict is
        so contrary to the evidence that it shocks one’s sense of
        justice.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citation

omitted).

     Rule 607 of the Pennsylvania Rules of Criminal Procedure states:

        Rule 607. Challenges to the Weight of the Evidence


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         (A) A claim that the verdict was against the weight of the
         evidence shall be raised with the trial judge in a motion for
         a new trial:

         (1)   orally, on the record, at any time before sentencing;

         (2)   by written motion at any time before sentencing; or

         (3)   in a post-sentence motion.

Pa.R.Crim.P. 607(A).

      “To   sustain   a   conviction   for   murder   of   the   first-degree,   the

Commonwealth must prove that: (1) a human being was unlawfully killed;

(2) the person accused is responsible for the killing; and (3) the accused

acted with specific intent to kill.”    Commonwealth v. Rivera, 983 A.2d

1211, 1220 (Pa. 2009) (citations omitted). Murder requires proof of malice.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1143 (Pa. 2012). The use

of deadly weapon upon a vital part of the body may establish the intent to

kill and malice. Commonwealth v. Briggs, 12 A.3d 291, 306 (Pa. 2011).

      A claim of self-defense “tends to negate the malice required for

murder” and the unlawfulness of the killing. Sepulveda, 55 A.3d at 1143

(citation omitted). Section 505 of the Crimes Code defines self-defense, in

part, 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



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         himself against the use of unlawful force by such other
         person on the present occasion.

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

                                  *      *      *

            (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.

18 Pa.C.S. § 505(a), (b)(2)(i)-(ii).

      The Pennsylvania Supreme Court has observed,

         When a defendant raises the issue of self-defense, the
         Commonwealth bears the burden to disprove such a
         defense beyond a reasonable doubt. While there is no
         burden on a defendant to prove the claim, before the
         defense is properly at issue at trial, there must be some
         evidence, from whatever source, to justify a finding of self-
         defense. If there is any evidence that will support the
         claim, then the issue is properly before the fact finder.

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001) (citations

omitted); accord Commonwealth v. Mouzon, 53 A.3d 738, 743 (Pa.

2012).


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      Additionally, Section 2503(b) of the Crimes Code states:

         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, but his belief is unreasonable.

18 Pa.C.S. § 2503(b).     A claim of “imperfect self-defense” under Section

2503(b) is “imperfect in only one respect―an unreasonable rather than a

reasonable belief that deadly force was required to save the actor’s life. All

other principles of justification under 18 Pa.C.S. § 505 must have been met.

. . .” Rivera, 983 A.2d at 1225 (citation omitted). Thus, a defendant may

not provoke or continue “the difficulty” that led to the slaying and then claim

self-defense. Mouzon, 53 A.3d at 751. Similarly, a claim of justification or

imperfect self-defense may be rebutted “where there is an avenue of

retreat, if the defendant knows the avenue of retreat is available.”

Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa. Super. 2009)

(citation omitted).

      At the outset, we note that Appellant’s claim that trial counsel was

ineffective for failing to file a post-sentence motion challenging the weight of

the evidence is misplaced.    Appointed counsel initially raised the issue of

trial counsel’s ineffectiveness and sought reinstatement of Appellant’s rights

to file a post-sentence motion and a direct appeal nunc pro tunc. However,

appointed counsel withdrew Appellant’s request to file post-sentence

motions nunc pro tunc and proceeded to the direct appeal nunc pro tunc



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without preserving Appellant’s weight of the evidence claim.        This Court

subsequently found Appellant’s weight of the evidence claim waived.        See

Banks, 2454 EDA 2011 at 11; see also Pa.R.Crim.P. 607(A).            Therefore,

Appellant’s claim of trial counsel’s ineffectiveness for failing to file a post-

sentence motion could have been addressed in the PCRA proceeding leading

to his direct appeal nunc pro tunc and his instant claim should have been

directed toward appointed counsel’s failure to preserve the issue in the

direct appeal nunc pro tunc. See 42 Pa.C.S. § 9544(b) (“an issue is waived

if the petitioner could have raised it but failed to do so . . . during unitary

review”).

      In any event, we agree with the PCRA court’s determination that

Appellant cannot show prejudice resulting from trial counsel’s ineffectiveness

with respect to his intended weight challenge. See PCRA Ct. Op., 11/20/15,

at 5. Appellant testified on direct examination that he initially did not feel

threatened because he believed the victim was lying about having a

“contract” out to kill Appellant. N.T. Trial, 1/7/08, at 148-49. Nevertheless,

Appellant continued to engage in a conversation with the victim about the

“contract” until he began to get in Appellant’s face.    Id. at 149-51. Upon

seeing several young men walking toward them, Appellant backed up into

the street and placed his firearm in his pocket. Id. at 151-52. Rather than

retreat, Appellant fired several shots at the victim’s legs. Id. at 154, 156.

When the victim continued to approach Appellant, he fired a fatal shot into



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the victim’s chest. Id. at 158. Appellant conceded he did not see the victim

with a weapon. Id. at 156.

       Additionally, Appellant’s police statement further revealed that he did

not run away when he first felt threatened because he had his firearm and

believed people would discover that he fled instead of using it. Id. at 238-

39. When the Commonwealth further inquired as to why Appellant did not

back away down the street to his car after brandishing his firearm, Appellant

responded that he “should have, would have, could have” retreated. Id. at

264.   Therefore, even if Appellant believed force was necessary to protect

himself from the victim, he knew he could have avoided any further

altercation with the victim by retreating. See Ventura, 975 A.2d at 1143.

       Moreover, the jury was also aware that Appellant was the victim of

several crimes in his past that resulted in significant injuries. See N.T. Trial,

1/7/08, at 164-65.    The court also instructed the jury on self-defense, as

well as imperfect self-defense. N.T. Trial, 1/8/08, at 33-38. Thus, the jury

was aware of the various scenarios for which self-defense could apply, but

still found Appellant’s actions were not justified. See 18 Pa.C.S. §§ 505(a),

(b)(2)(i)-(ii), 2503(b).    Thus, the record supports the PCRA court’s

determination that even if Appellant’s weight of the evidence challenge had

been preserved for direct appeal, no relief would have been due because the

verdict did not shock the sense of justice. See PCRA Ct. Op. at 7; Houser,

18 A.3d at 1135-36.



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      Lastly, to the extent Appellant asserts that there was additional, more

detailed evidence regarding his personal history and mental state at the time

of the incident, he has failed to develop independent claims that trial counsel

was ineffective for failing to investigate or present evidence. Similarly, he

has failed to respond to the PCRA court’s suggestion that he failed to plead

that counsel should have been aware of the evidence contained in the pre-

sentence investigative report.   See PCRA Ct. Op. at 5.      Therefore, these

claims are waived. See Commonwealth v. Janda, 14 A.3d 147, 164 (Pa.

Super. 2011). Moreover, because there was ample basis for the jury to find

that Appellant violated the duty to retreat, Appellant cannot claim that the

additional evidence regarding his mental state at the time of the incident

would have altered the jury’s deliberation on his claims of self-defense or

imperfect self-defense. Accordingly, because the PCRA court’s findings are

supported by the record and its legal conclusions are free of error, we affirm.

See Miller, 102 A.3d at 992.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




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