J-S59009-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

JEFFREY TODD DEBLASE,

                          Appellant                  No. 1619 WDA 2014


               Appeal from the PCRA Order September 3, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0009921-2005


BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 16, 2015

       Jeffrey Todd DeBlase appeals from the order entered September 3,

2014, denying his post-conviction relief petition filed pursuant to 42 Pa.C.S.

§§ 9541-9546 (“PCRA”). We affirm.

       A jury found Appellant guilty of third-degree murder and conspiracy to

commit murder after a joint trial with his co-defendant, Louis Mann, on

February 5, 2007. In 1996, when the crimes occurred, DeBlase and Mann

were cellmates in the State Correctional Institute at Pittsburgh, also known

as the Western Penitentiary. Appellant and Mann murdered a fellow inmate,

Timothy Boris, who died of asphyxiation due to strangulation.           Since

Appellant was then incarcerated for another murder, his conviction triggered

a mandatory sentence of life imprisonment. See 42 Pa.C.S. § 9715. The


*
    Former Justice specially assigned to the Superior Court.
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court sentenced Appellant on May 16, 2007, to life imprisonment for the

third-degree murder charge and imposed a consecutive sentence of ten to

twenty years incarceration for the conspiracy count.

       Appellant unsuccessfully litigated post-sentence motions, filed a notice

of   appeal,     and    this   Court     affirmed    his   judgment   of   sentence.

Commonwealth v. DeBlase, 996 A.2d 4 (Pa.Super. 2010). Our Supreme

Court denied allowance of appeal.              Commonwealth v. DeBlase, 13 A.3d

475 (Pa. 2010). Appellant timely filed a pro se PCRA petition on December

21, 2011. The court appointed counsel, who filed an amended petition on

February 28, 2014. Thereafter, the court issued a Pa.R.Crim.P. 907 notice

of intent to dismiss on July 1, 2014, and a final order on September 3, 2014.

Appellant timely appealed.         The PCRA court issued a Rule 1925(a) order

setting forth that the reasons for its disposition could be found in its notice

of dismissal.

       Appellant filed a pro se document with this Court seeking to proceed

pro se. This Court entered an order directing the PCRA court to conduct a

Grazier hearing.1       PCRA counsel also filed a motion to withdraw with the

PCRA court. The court conducted a Grazier hearing on April 22, 2015, and

ultimately declined to permit counsel to withdraw or to allow Appellant to
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1
  This panel did not enter the order, which both PCRA counsel and the PCRA
court questioned in light of the rule against hybrid representation. PCRA
counsel also was not served a copy of the pro se filing.



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proceed pro se because his request was that he be assigned different

counsel rather than continue pro se.        Counsel then filed a motion to

withdraw with this Court, which was denied.      Appellant also subsequently

filed a pro se application for remand. That request was denied. The matter

is now ready for our disposition.     Appellant presents two issues for our

review.

      I.    Whether trial counsel gave ineffective assistance for failing
            to object to inadmissible hearsay testimony?

      II.   Whether trial counsel gave ineffective assistance for failing
            to argue that the codefendant’s statements were
            inadmissible pursuant to the Confrontation Clause of the
            Sixth Amendment as well as Article I, Section 9 of the
            Pennsylvania Constitution?

Appellant’s brief at 4.

      In reviewing a PCRA appeal, we consider the record “in the light most

favorable to the prevailing party at the PCRA level.”     Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).         In performing this

review, we consider the evidence of record and the factual findings of the

PCRA court. Id. We afford “great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in

the record.”   Id.   Accordingly, so long as a PCRA court’s ruling is free of

legal error and is supported by record evidence, we will not disturb its

decision. Id. Where the issue presents a question of law, “our standard of

review is de novo and our scope of review is plenary.” Id.



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      Both of Appellant’s positions relate to the effectiveness of trial counsel.

“To plead and prove ineffective assistance of counsel a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel's

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel's act or failure to act.” Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet any of

these aspects of the ineffectiveness test results in the claim failing. Id.

      A claim has arguable merit where the factual predicate is accurate and

“could establish cause for relief.”    Id.   at 707.    A determination as to

whether the facts asserted present a claim of arguable merit is a legal one.

Id.   In considering whether counsel acted reasonably, we do not use a

hindsight analysis; rather, an attorney’s decision is considered reasonable if

it effectuated his client’s interests. Id. Only where “no competent counsel

would have chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success[,]” will counsel’s

strategy be considered unreasonable. Id. Finally, actual prejudice exists if

“there is a reasonable probability that, but for counsel's errors, the result of

the proceeding would have been different.” Id. It is presumed that counsel

renders effective representation.

      Appellant’s initial ineffectiveness claim is that trial counsel rendered

deficient representation by failing to object to alleged hearsay testimony

from Arthur Dixon, an incarcerated individual, who testified for the

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Commonwealth.         Specifically, Dixon testified that he observed the victim

arguing with Appellant and Mann. According to Dixon, he later spoke with

the victim.    After Dixon was asked what the victim stated, co-defendant’s

counsel objected, but Appellant’s counsel did not.2 A sidebar conversation

ensued.

       Court: State of mind of the victim? What is he going to say?

       Prosecutor: The argument was about drugs, that Jeff gave to
       him some drugs, and Tim got scared and gave it to another guy.
       They had an argument because the guy died.

       Court: Your objection is?

       Codefendant’s Attorney: Hearsay.

       Court: All right. Well, it doesn’t involve your client.

       Codefendant’s Attorney: Sort of it does.

       Court: Objection overruled.

N.T., 1/31/07, at 251.3



____________________________________________


2
   Trial counsel certified below that he had no reasonable basis for not
objecting. However, the record establishes that Appellant’s counsel, during
trial stated, “I would ask for the record, and so it is clear, if there be one
objection from one attorney, that it is for both.” N.T., 1/30/07, at 83-84.
Hence, the issue is more properly counsel’s failure to articulate a hearsay
argument relative to his client rather than neglecting to object.
3
  The notes of testimony are contained in a single volume. Trial testimony
began on January 30, 2007, and the verdict was returned on February 5,
2007.



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      Dixon then testified that the victim told him that he argued with

Appellant because Appellant gave him drugs that the victim then provided to

another inmate. See id. at 252. Dixon added that the inmate who used the

drugs passed out on the floor and was discovered with the drugs. Appellant

contends that the testimony that he gave the victim drugs was hearsay not

falling within any hearsay exception.

      The Commonwealth responds that the evidence was admissible to

establish the victim’s state of mind and was relevant to establish Appellant’s

motive.   It adds that, even if the evidence in question was not admitted,

Appellant cannot demonstrate prejudice based on the additional testimony

levied against him that established his guilt. We agree that Appellant cannot

establish prejudice.

      Dixon also testified that he witnessed Appellant using a chokehold on

the victim inside Appellant’s cell while Mann was punching the victim.

Thereafter, Appellant and Mann approached Dixon inside his cell and asked

for help carrying the victim back to his cell.   Dixon declined to help and

suggested that Appellant and Mann ask two other inmates, Carlos Vasquez

and Adam Colon, for assistance. Dixon then saw Appellant, Mann, Vasquez,

and Colon carrying the body of the victim.        He testified that the men

dropped the victim at one point and the victim did not even grunt. Vasquez

acknowledged hearing an argument in Appellant’s cell and minutes later




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observed Appellant and Mann carrying the victim to the victim’s cell.

According to Vasquez, the victim looked dead.

     Richard Guy, the victim’s cellmate, also testified that Appellant and

Mann had approached him and told him that the victim had overdosed on

heroin and that they had attempted to revive him. When Guy reentered his

cell, he saw the victim, whom he believed to be asleep.      Guy then used

heroin himself and fell asleep. When he awoke the next morning, the victim

was unresponsive, bloated, and purple.    Guy called for a guard and was

himself removed to solitary confinement. Later, Mann informed Guy that he

had an argument with the victim and a struggle ensued before “things had

gotten out of hand.” N.T., 1/30/07, at 114. An autopsy revealed that the

victim had abrasions and bruising on his face and back, as well as his neck.

The victim’s eyes had hemorrhaged and the forensic pathologist concluded

that the victim had been strangled to death. Based on this evidence, there

is not a reasonable probability that the outcome of the proceeding would

have been different had counsel objected to Dixon’s statement that the

victim stated that Appellant gave him drugs on a previous occasion.

     Next, Appellant avers that trial counsel was ineffective for neglecting

to object to the admission of his co-defendant’s statements to another

inmate pursuant to Bruton v. United States, 391 U.S. 123 (1968).

Appellant maintains that his federal and state confrontation clause rights

were infringed.   The Sixth Amendment provides that “[i]n all criminal

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prosecutions, the accused shall enjoy the right . . . . to be confront with the

witnesses against him[.]”     Similarly, Article I, § 9 of the Pennsylvania

Constitution reads, “[i]n all criminal prosecutions the accused hath a right . .

. . to be confronted with the witnesses against him[.]” Bruton held that the

use of one codefendant’s confession against another codefendant deprived

the non-confessing defendant of his Sixth Amendment right to confront the

witnesses against him. Therein, the trial court had instructed the jury that it

could not use Bruton’s codefendant’s statement against Bruton.              The

codefendant had specifically named Bruton as an individual who helped him

commit the robbery crime at issue.

      Appellant’s specific objection is to the testimony of Richard Guy and

Carlos Vasquez. Guy testified regarding what Mann had stated to him about

the victim as follows, “there had been a tussle between them and things had

gotten out of hand[.]”    N.T., 1/30/07, at 114.     Additionally, Vasquez set

forth that Mann, in discussing Guy’s state of inebriation stated, “[Mr. Guy]

doesn’t remember anything about the incident, so let’s try to pin it on him.”

N.T., 1/31/07, at 236. According to Appellant, the references to “them” and

“let’s” violated Bruton because it implied that Mann was referring to

Appellant.




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       The Commonwealth counters that the reference to another person was

neutral and omitted specific reference to Appellant.4            It maintains that the

Supreme Court in Richardson v. Marsh, 481 U.S. 200 (1987), declined to

find a federal confrontation clause violation where the non-testifying

codefendant’s      confession     had    been    redacted   to    omit   reference   to

codefendant Marsh.        Under Richardson, the neutral redaction, even if it

could be inferred that the non-confessing codefendant was involved in the

crime, did not violate Marsh’s confrontation right.                 According to the

Richardson Court, the statement must be incriminating on its face and not

via contextual implication. Id. at 208-209.

       Here, the references Appellant challenges are not facially incriminating

of Appellant. They do not use his name or refer directly to him. Further,

this matter does not involve the reading of a confession where there is a

redaction in the statement via the removal of the defendant’s name and it

being replaced by a blank space, symbol, or word. See Gray v. Maryland,

523 U.S. 185 (1998). Only by other evidence introduced can it be inferred

that Mann’s statements incriminated Appellant.              See Commonwealth v.

Roney, 79 A.3d 595, 627 (Pa. 2013) (no Bruton violation if codefendant’s

statement incriminates a fellow codefendant only after linkage with other

____________________________________________


4
  We note that the reference to “them” also could have referred to Mann and
the victim.



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evidence introduced). Counsel was not ineffective for failing to object since

no Bruton violation occurred.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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