J-S25029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                       v.

ANTOINE DAVIS

                            Appellant                    No. 300 EDA 2016


                  Appeal from the PCRA Order January 22, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006327-2007


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY RANSOM, J.:                                  FILED MAY 26, 2017

        Appellant, Antoine Davis, appeals from the order entered January 22,

2016, denying his petition for collateral relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        In December 2006, Appellant was arrested in connection with the

strangling death of the victim, L.P., with whom he had a romantic

relationship.1 See PCRA Court Opinion (PCO), 8/26/16, at 1-3. Prior to and

during trial, the parties litigated a number of evidentiary issues on which the

court ruled throughout the proceedings.

        On May 13, 2009, Appellant filed an omnibus pretrial motion seeking,

among other things, to present evidence that Johnathan Anderson, L.P.’s

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1
    Due to the nature of the crime, we will use the victim’s initials.
J-S25029-17



former boyfriend, had abused her. See Omnibus Motion, 5/13/09, at ¶¶ 24-

28. The evidence Appellant sought to admit was 1) a Protection From Abuse

Act petition (“PFA”), and 2) testimony from L.P.’s niece that Mr. Anderson

had previously strangled L.P. Id.

     Prior to trial on November 9, 2009, counsel made an oral a motion in

limine, seeking to admit the evidence above.         See Notes of Testimony

(N.T.), 11/9/09, at 8-9. Specifically, counsel sought to admit PFA petitions

that L.P. had filed against Mr. Anderson in 2004 or 2005, and a statement

L.P.’s niece had given to police that Mr. Anderson had once strangled L.P. to

the point of unconsciousness.    See N.T., 11/9/09, at 9.      The trial court

denied admission of the PFA as hearsay, but held that it would permit L.P.’s

niece to testify that L.P. and Mr. Anderson had argued over child custody if

she had heard the argument herself. Id. at 19-20; see also Docket No. CP-

51-CR-00062327-2007, 11/09/09. The information regarding the argument

was later elicited on cross-examination. See N.T., 11/10/09, at 109-10.

     The next day, counsel provided the court with a report compiled by a

private investigator; however, upon review, the report indicated only that

L.P. had told Jerome Brown, Catherine Jackson, and Jennifer Cabezudo that

Mr. Anderson had abused her.        See N.T., 11/10/09, at 3-20.    The court

denied admission of the report as none of the proposed witnesses had

actually seen Mr. Anderson abuse L.P.       To resolve the ongoing evidentiary

dispute, the prosecutor proposed a stipulation: she would stipulate that

L.P.’s niece had overheard L.P.’s argument with Anderson, and defense

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counsel would stipulate to the excited utterance by L.P. where she stated

that Appellant had choked her.          Id. at 11-17.   After considering, defense

counsel declined the stipulation and as noted, supra, later elicited testimony

regarding the argument on cross examination. Id. at 11-17, 109-10.

        The matter proceeded to trial.         In November 2009, a jury convicted

Appellant of third degree murder.2 In January 2010, Appellant was

sentenced to fifteen to thirty years of incarceration. Appellant filed a post-

sentence motion, which was denied. His judgment of sentence was affirmed

on appeal. See Commonwealth v. Davis, 37 A.3d 1242 (Pa. Super. 2011)

(unpublished memorandum).              Appellant did not seek review with the

Pennsylvania Supreme Court.

        On October 19, 2012, Appellant pro se timely filed a PCRA petition.

Counsel was appointed and filed an amended petition and supplemental

amended petition on Appellant’s behalf. In December 2015, the court sent

Appellant notice pursuant to Pa.R.Crim.P. 907 that his petition would be

dismissed without a hearing.            The court formally dismissed Appellant’s

petition on January 22, 2016.

        Appellant timely appealed and filed a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).           The PCRA

court issued a responsive opinion.


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2
    See 18 Pa.C.S. § 2502(c).



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        On appeal, Appellant raises the following issues for our review.

        A. Is Appellant entitled to post conviction relief in the form of the
           grant of a new trial or a remand for an evidentiary hearing
           since trial counsel rendered ineffective assistance of counsel
           when she failed to present the stipulation concerning
           Jonathan Anderson’s abuse of the victim and failed to make
           an appropriate proffer with regard to other evidence
           establishing Anderson’s abuse of the victim. Alternatively,
           were post-sentence motion counsel and direct appeal counsel
           ineffective when they failed to raise the issue of the trial
           court’s denial of Appellant’s motion to admit evidence of
           Anderson’s abuse of the victim at trial in the post-sentence
           motion or in the direct appeal?

        B. Is Appellant entitled to post conviction relief in the form of the
           grant of a new trial or a remand for an evidentiary hearing
           since trial counsel rendered ineffective assistance of counsel
           when she failed to request the trial court to instruct the jury
           concerning heat of passion voluntary manslaughter?

Appellant’s Brief at 4.

        We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.       Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

        In this case, the PCRA court dismissed Appellant’s petition without a

hearing.    See PCRA Court Order, 1/22/16 (citing in support Pa.R.Crim.P.

907).      There is no absolute right to an evidentiary hearing.                See

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On

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appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding that there were no genuine

issues of material fact and denying relief without an evidentiary hearing.”

Springer, 961 A.2d at 1264.

     We presume counsel is effective.     Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) that counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).    “A petitioner establishes prejudice when he demonstrates that

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

errors, the result of the proceeding would have been different. Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

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

     Appellant claims trial counsel rendered ineffective assistance when she

failed to present evidence that Jonathan Anderson had abused L.P. prior to

her death.     See Appellant’s Brief at 26.    Appellant raises a litany of

arguments that trial counsel failed to make an appropriate proffer with

regard to other evidence that would have established abuse, namely, 1) the

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stipulation; 2) PFA petitions; 3) Mr. Anderson’s court documents and

criminal history; and 4) investigative reports prepared by a private

investigator.    Id. at 26-27.       Appellant contends that this evidence would

have bolstered his argument that Mr. Anderson was the killer. Id. In the

alternative, Appellant claims post-sentence motion counsel and direct appeal

counsel were ineffective for their failure to raise the issue the trial court’s

evidentiary rulings. Id.

       First, Appellant avers counsel was ineffective for failure to present to

the court the stipulation proposed by the Commonwealth. See Appellant’s

Brief at 26-41.      In fifteen pages of his brief, Appellant fails to present a

coherent argument on this point. As noted supra, the proposed stipulation

was to two pieces of information, 1) L.P.’s niece overheard L.P. and Mr.

Anderson arguing about the custody of their child, and 2) prior to L.P.’s

death, Appellant had choked L.P.               Here, counsel declined to accept the

stipulation.3    However, counsel cross-examined L.P.’s niece regarding the

argument. See N.T., 11/10/09, 109-10. The stipulation itself was a nullity,

as the proffered evidence was admitted regardless of said stipulation. Thus,

Appellant cannot show he was prejudiced by counsel’s failure to present the

stipulation.    See Johnson, 966 A.2d at 533 (Pa. 2009) (noting that a
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3
 We note that prior to trial, the Commonwealth filed a prior bad acts motion
pursuant to Pa.R.E. 404(b), and accordingly, was allowed to introduce
evidence of the choking. See Davis, 37 A.3d 1242, at * 19. This Court
upheld that admission on direct appeal. Id. at 19-20.



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petitioner    establishes   prejudice   when   he   demonstrates   a   reasonable

probability that but for counsel’s errors the result of the proceeding would be

different).

      Second, Appellant avers counsel was ineffective for failing to present

PFA petitions filed by L.P. against Mr. Anderson. See Appellant’s Brief at 28-

29.   The PCRA court noted that the trial court ruled that the proffered

evidence was inadmissible and counsel cannot be ineffective for failure to

enter inadmissible evidence into the record.          See PCO at 9; see also

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (noting that

counsel cannot be ineffective for failure to raise a meritless claim). We see

no error in this conclusion. Appellant now contends that the PFA petitions

should have been admissible under various hearsay exceptions, but fails to

address any law concerning hearsay and its exceptions beyond a bare

citation to the rules of evidence themselves.         Accordingly, Appellant has

waived this argument for purposes of appeal.         See Pa.R.A.P. 2119(a)-(c);

see also Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012)

(“[T]he argument portion of an appellate brief must be developed with a

pertinent discussion of the point which includes citations to the relevant

authority.”).

      Third, Appellant argues counsel was ineffective for failure to introduce

Mr. Anderson’s criminal record and court documents. See Appellant’s Brief

at 26-29.       The dockets in question reveal that 1) Mr. Anderson was

convicted of misdemeanor offenses involving the victim two years before her

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death in Philadelphia, and 2) that Mr. Anderson was convicted of simple

assault and resisting arrest in Delaware County in 2002, without any

indication that the victim was involved.4

       Evidence must be relevant to be admissible, and its probative value

must outweigh its potential prejudicial effect.          See Commonwealth v.

Impellizzeri, 661 A.2d 422, 428 (Pa. Super. 1995). Relevant evidence is

that which tends to establish the facts in issue or in some degree advances

the inquiry, and is therefore probative.         Id.   The probative value of the

evidence must outweigh its potential prejudicial impact.          Id.   Here, the

evidence Appellant argues was admissible is simply not probative of the

theory he wishes to advance. Mr. Anderson’s prior convictions do not make

it more likely that he murdered L.P., and Appellant’s arguments to the

contrary strain credulity.5       Therefore, counsel could not be ineffective for

failing to offer evidence which was irrelevant.

       Additionally, Appellant argues counsel was ineffective for failure to

present an investigative report prepared by a private investigator. Counsel

____________________________________________


4
  The dockets in question are attached to Appellant’s PCRA petition, which
does not utilize page numbers.
5
   For example, Appellant argues that the arrest record “would have
corroborated” the testimony of a neighbor, who remembered hearing noises
coming from L.P.’s house early on November 23, 2006, which was
approximately two days after Appellant stated he last saw her.        See
Appellant’s Brief at 39. Appellant argues that the victim was killed after
Appellant left the residence, and that that person was “presumably
Anderson.” Id.



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presented the report at trial. Upon review, the court ruled that the report

constituted hearsay, as the witnesses interviewed would only testify to what

L.P. had told them.           See Appellant’s Brief at 29-30; see also N.T.,

11/10/09, at 3-13. An examination of the report provided in Appellant’s own

brief confirms this ruling was not in error.             In the report, the witnesses

interviewed by the investigator stated they observed injuries to L.P.’s body,

but the sole evidence regarding the manner in which L.P. was injured

constituted hearsay. See Appellant’s Brief at 29-30. Trial counsel was not

ineffective for failing to convince the trial court that this report did not

consist of hearsay. Further, the issue of the trial court’s evidentiary ruling is

more properly raised on direct appeal. See 42 Pa.C.S. § 9544(b).

      Next,      Appellant    claims    that    post-sentence      motion   counsel   and

appellate counsel rendered ineffective assistance for failure to raise the issue

of the court’s evidentiary rulings. See Appellant’s Brief at 36-37, 39-40. As

noted above, the trial court’s rulings were proper.                  Counsel cannot be

ineffective for failure to raise a meritless claim. Fears, 86 A.3d at 804.

      Finally,    Appellant    claims    that    trial   counsel   rendered   ineffective

assistance of counsel when she failed to request a jury charge for heat of

passion voluntary manslaughter.            See Appellant’s Brief at 42.        Appellant

argues that because he informed homicide detectives that L.P. “had kicked

him in his ‘privates’” during a fight, the evidence supported such a charge.

Id. at 43. Appellant argues he was prejudiced because the jury could not




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consider this as a mitigating factor, and only focused on his own actions.

Id.

      A person is guilty of voluntary manslaughter if at the time of the killing

he acted under a sudden and intense passion resulting from serious

provocation by the victim.    See Commonwealth v. Browdie, 671 A.2d

668, 671 (Pa. 1996); see also 18 Pa.C.S. § 2503(a).          “Heat of passion”

includes emotions such as anger, rage, sudden resentment or terror, which

renders the mind incapable of reason. Id. A defendant is not entitled to a

voluntary manslaughter charge where the evidence does not support it. Id.

      Further, and more importantly, as the PCRA court noted:

      Such an instruction requires that defendant admit to the killing.
      See Commonwealth v. Sanchez, 623 Pa. 253, 315, 82 A.3d
      943, 980 (Pa. 2013) (noting that the Supreme Court has “long
      held that no jury charge is required on the elements of voluntary
      manslaughter where the defendant denies having committed the
      killing”). However, the defendant contended at trial that he was
      not the killer.

See PCO at 9. We find no error in this conclusion. Accordingly, Appellant’s

underlying issue is not of arguable merit. See Sanchez, 82 A.3d at 980;

Johnson, 966 A.2d at 533. Counsel cannot be ineffective for failure to raise

a meritless claim, and Appellant is not entitled to a new trial or evidentiary

hearing on this issue. Fears, 86 A.3d at 804.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




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