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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                         Appellee

                    v.

TAARIQ THOMAS

                         Appellant                    No. 656 EDA 2019


          Appeal from the PCRA Order Entered February 4, 2019
             In the Court of Common Pleas of Lehigh County
            Criminal Division at No: CP-39-CR-0003165-2015


BEFORE: OLSON, STABILE, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                      FILED DECEMBER 24, 2019

     Appellant, Taariq Thomas, appeals pro se from the February 4, 2019

order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

     A prior panel of this court recited the pertinent facts:

            On April 7, 2015, Allentown Police responded to 135 S. 5th
     Street for a report of an assault. Upon arrival, officers spoke with
     [Appellant], who directed the officers to Apartment 3. There,
     officers discovered Jonathon Brown with an injury to the right side
     of his head. Mr. Brown was bleeding from the wound and was
     holding a cloth in his hand. Brown was unable to respond to the
     officers, and he was going in and out of consciousness. Brown
     was transported to Lehigh Valley Hospital. [Appellant] admitted
     to police he struck Brown in the head with a baseball bat.

           [Appellant] was taken to Allentown Police Headquarters and
     gave an audio/videotaped statement[, which was played at trial].
     According to Appellant, his then-girlfriend, Chelsea O’Toole, was
     texting with her cousin, Mr. Brown, and made plans for Brown to
     come over to their apartment to hang out. [Appellant] said he
     was in the bathroom when Brown arrived. [Appellant] heard
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       unusual noises and heard O’Toole say, “Babe,” so he grabbed a
       baseball bat from the bathroom and came out. He saw Brown
       holding O’Toole in what he described as a bear hug. He said it
       looked like O’Toole was trying to get away, so he hit Brown in the
       head with the bat. Brown turned around, and [Appellant] hit him
       again. [Appellant] believed Brown was being suspicious when
       texting with O’Toole, and thought Brown had a romantic interest
       in O’Toole.

              Ms. O’Toole testified at [Appellant’s] trial. According to
       O’Toole, she did not ask Mr. Brown to come to the apartment.
       O’Toole was shown text messages from her phone that showed
       Brown was invited over. When asked about them, she advised
       that the pone was in her name, but [Appellant] had it with him at
       all times and did not allow her to use it. O’Toole said when Brown
       knocked on the door, she opened it and asked Brown what he was
       doing there. Brown responded, “I came to chill.” O’Toole said
       Brown put his hands on her shoulder, so she said, “Babe?” O’Toole
       indicated she started it like a question, because she did not know
       what was going on. She testified that [Appellant] came out and
       immediately hit Brown with the bat. O’Toole testified that Brown
       did not have her in a bear hug, and that she was out of Brown’s
       reach when [Appellant] came out of the bathroom and hit Brown.

Commonwealth v. Thomas, 828 EDA 216 (Pa. Super. June 26, 2017)

(unpublished memorandum at 1-2) (quoting Trial Court Opinion, 5/9/16, at

1-3) (footnotes omitted).

       A jury found Appellant guilty of aggravated assault, simple assault, and

recklessly endangering another person,1 and on January 15, 2016, the trial

court sentenced Appellant to an aggregate six to twenty years of incarceration.

       This Court affirmed the judgment of sentence on June 26, 2017.

Appellant did not seek allowance of appeal from our Supreme Court. He filed

a timely first PCRA petition on February 16, 2018. Counsel was appointed and

____________________________________________


1   18 Pa.C.S.A. §§ 2702, 2701, and 2075.

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subsequently permitted to withdraw pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). On November 28, 2018, the PCRA court issued its

notice of intent to dismiss the petition without a hearing, pursuant to

Pa.R.Crim.P. 907. Appellant filed a pro se response on December 17, 2018.

The PCRA court dismissed Appellant’s petition on February 4, 2019.              This

timely pro se appeal followed.

        Appellant claims the PCRA court erred because (1) trial counsel was

ineffective in failing to cross examine O’Toole on her prior inconsistent

statements; (2) trial counsel was ineffective for failing to interview O’Toole

prior to trial; (3) trial counsel was ineffective for failing to argue that Appellant

acted in defense of O’Toole; and (4) the Commonwealth intentionally held

exculpatory and or impeachment evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963). Appellant’s Brief at iii. We will consider these issues in

turn.

        On review, we must determine whether the facts support the PCRA

court’s order, and whether the PCRA court committed an error of law.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

              To be entitled to PCRA relief, a petitioner bears the burden
        of establishing, by a preponderance of the evidence, that his
        conviction or sentence resulted from one or more of the
        circumstances enumerated in 42 Pa.C.S. § 9543(a)(2), which
        include a violation of the Pennsylvania or United States
        Constitution or ineffectiveness of counsel, any one of which “so
        undermined the truth-determining process that no reliable
        adjudication of guilt or innocence could have taken place. 42

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      Pa.C.S. § 9543(a)(2)(i) and (ii). Further, the petitioner must show
      that the allegation of error has not been previously litigated or
      waived pursuant to Pa.C.S. § 9543(a)(3)[.]

Id. at 617-18. The PCRA court can dismiss a petition without a hearing when

it is “satisfied that there are no genuine issues concerning any material fact

and that the defendant is not entitled to post-conviction collateral relief, and

no purpose would be satisfied by any further proceedings[.]” Pa.R.Crim.P.

907(1).   The decision whether to conduct a hearing rests within the PCRA

court’s discretion.   Mason, 130 A.3d at 618.       To prevail on a claim of

ineffective assistance of counsel, a petitioner must plead and prove that (1)

the underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for the disputed action or inaction; and (3) counsel’s error

prejudiced the petitioner such that the outcome of the underlying procedure

would have been different but for the error. Id.

      First, Appellant claims counsel was ineffective for failing to cross-

examine O’Toole about her prior inconsistent statements to police. Shortly

after the incident, O’Toole told police she believed Brown was assaulting her.

Later, she told police Appellant lured Brown to her apartment using her cell

phone and then assaulted him.       She claimed her initial statements were

inaccurate because of her fear of Appellant. Appellant argues counsel was

ineffective for failing to cross-examine O’Toole on prior statements that he

believes would have supported his justification/defense of another person

theory of the case.



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     This issue lacks arguable merit because the trial court record reflects

that defense counsel examined O’Toole extensively on her prior inconsistent

statements. N.T. Trial, 12/15/15, at 67-82. On several occasions, counsel

gave O’Toole her prior statements to read when she claimed not to have made

and/or not to remember the prior statements. Id. at 73, 76-77. The prior

panel of this Court offered the following summary of defense counsel’s cross

examination of O’Toole:

            With respect to Ms. O’Toole’s conflicting statements to the
     police, Appellant cross-examined Ms. O’Toole about a police
     report, in which the officer indicated that Ms. O’Toole said Mr.
     Brown tried to molest her. N.T. 12/15/15, at 72. Ms. O’Toole
     denied making that statement. Id. at 74. Ms. O’Toole also denied
     telling the police that Mr. Brown ‘was trying to get me.’ Id. at 77.
     In a subsequent statement, Ms. O’Toole admitted telling the police
     that Mr. Brown grabbed her and she ‘had a feeling’ Mr. Brown was
     (1) going to take advantage of her, (2) being perverted, and (3)
     aggressive. Id. at 80-81.

Thomas, 828 EDA 216, unpublished memorandum at 3.                 In rejecting

Appellant’s sufficiency of the evidence argument, the panel wrote:

           Viewing the evidence in the Commonwealth’s favor,
     Appellant, pretending to be Ms. O’Toole, lured Mr. Brown over to
     the apartment. N.T. Trial, 12/16/15, at 35. After Mr. Brown, who
     was unarmed, arrived, Appellant hit Mr. Brown in the head with a
     baseball bat—twice. N.T. Trial, 12/15/15, at 94. Ms. O’Toole
     provided the jury with a version of the events leading up to that
     assault that was favorable to the Commonwealth. She testified
     that she did not fight or struggle with Mr. Brown. Id. at 66, 92-
     93. Further, she testified that she was out of Mr. Brown’s reach
     and Mr. Brown did not have her in a bear hug when Appellant
     exited the bathroom and struck Mr. Brown. Trial Ct. Op. at 3. The
     jury elected to believe Ms. O’Toole’s testimony that she was not
     in danger and not trying to escape, notwithstanding Appellant’s
     police statement to the contrary and the conflicting statements
     O’Toole gave to the police.

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Id. at 8-9.     In summary, defense counsel relied heavily on O’Toole’s

inconsistent statements in attempt to obtain an acquittal. Appellant’s claim

that counsel was ineffective for failing to cross-examine O’Toole on her

inconsistent statements lacks any support in the record.

      Next, Appellant claims counsel was ineffective for failing to interview

O’Toole prior to trial. To succeed on this claim, Appellant must establish that

the interview would have been helpful:

             This Court has recognized that trial counsel has a general
      duty to undertake reasonable investigations or make reasonable
      decisions which render particular investigations unnecessary. The
      duty to investigate, of course, may include a duty to interview
      certain potential witnesses; and a prejudicial failure to fulfill this
      duty, unless pursuant to a reasonable strategic decision, may lead
      to a finding of ineffective assistance. Nevertheless, we have never
      held that trial counsel is obligated to interview every
      Commonwealth witness prior to trial. The failure of trial counsel
      to interview a particular witness prior to trial does not constitute
      ineffective assistance of counsel unless there is some showing that
      such an interview would have been beneficial to the defense under
      the facts and circumstances of the case.

Commonwealth v. Mitchell, 105 A.3d 1257, 1276–77 (Pa. 2014).

Appellant’s pro se brief fails to offer a coherent explanation of why an interview

of O’Toole would have been helpful.      His argument seems to be that, had

counsel interviewed O’Toole, counsel would have been prepared to cross-

examine her about her prior inconsistent statements. Because counsel did

cross-examine O’Toole on her prior inconsistent statements, there is no

arguable merit to this issue.




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       Next, Appellant claims counsel was ineffective for failing to argue that

Appellant’s actions were justified because he acted in defense2 of O’Toole.

Once again, Appellant’s claim finds no support in the record.             Counsel

presented evidence that Brown was the aggressor toward O’Toole, and that

Appellant came to her defense. Counsel argued for and received an instruction

on justification/defense of others. N.T. Trial, 12/17/15, at 50-54. Defense

counsel argued repeatedly during his closing that Appellant acted in defense

of O’Toole. Id. at 5-13. For these reasons, Appellant’s claim of ineffective

assistance lacks arguable merit.




____________________________________________


       2   Use of force for protection of other persons is a valid defense:

            (a) General rule.--The use of force upon or toward the
       person of another is justifiable to protect a third person when:

             (1) the actor would be justified under section 505 (relating
       to use of force in self-protection) in using such force to protect
       himself against the injury he believes to be threatened to the
       person whom he seeks to protect;

             (2) under the circumstances as the actor believes them to
       be, the person whom he seeks to protect would be justified in
       using such protective force; and

             (3) the actor believes that his intervention is necessary for
       the protection of such other person.

             (b) Exception.--Notwithstanding subsection (a), the actor
       is not obliged to retreat to any greater extent than the person
       whom he seeks to protect.

18 Pa.C.S.A. § 506.


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      Finally,   Appellant   claims   he   is   entitled   to   relief   because   the

Commonwealth committed a Brady violation.              Appellant does not allege

counsel was ineffective in this regard, nor does he offer any other ground on

which this issue is cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a).

Furthermore, Appellant fails to explain why he could not have raised this issue

before the trial court. Appellant claims the Commonwealth edited portions of

O’Toole’s statements to withhold exculpatory statements, but he does not

explain how he knows this to be the case, or when he learned of it. Thus, he

cannot overcome the PCRA’s waiver provision:                “For purposes of this

subchapter, an issue is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal or in a prior

state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Furthermore, as

we already have explained, defense counsel was aware of O’Toole’s

inconsistent statements to police. He used his cross-examination of O’Toole

to highlight portions of her statements that supported his defense of others

theory of the case. For all of the foregoing reasons, Appellant cannot obtain

relief on his Brady claim.

      In summary, we have concluded that Appellant’s assertions of counsel’s

ineffectiveness lack arguable merit, and that his Brady claim is waived and

not eligible for relief in this case. We therefore affirm the PCRA court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/19




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