Com. v. Banks, J.
2678 EDA 2015
| Pa. Super. Ct. | Oct 19, 2016Background
- On May 12, 2007, Jerome Banks shot and killed Andre Johnson at 52nd and Market in Philadelphia; eyewitnesses saw Banks fire multiple shots and then raise his hands and leave in a minivan. Banks later surrendered and told police he shot the victim in self-defense. Medical examiner found multiple fatal gunshot wounds.
- At trial Banks testified he believed the victim threatened him (claimed to have put a contract on Banks), that the victim and others’ approach made him fear a setup, and that he fired after the victim advanced; he admitted he did not see a weapon on the victim. He also had a carry permit and prior injuries described to the jury.
- The jury convicted Banks of first-degree murder and possessing an instrument of crime; he was sentenced to life plus concurrent term for PIC.
- Appointed counsel pursued a direct appeal nunc pro tunc but withdrew the claim challenging the weight of the evidence; this Court affirmed the convictions and found any weight challenge waived for lack of preservation.
- Banks filed a PCRA petition arguing trial counsel was ineffective for failing to file a post-sentence motion preserving a weight-of-the-evidence claim (particularly regarding specific intent and evidence of Banks’ prior assaults/medical history). The PCRA court dismissed the petition without an evidentiary hearing; Banks appealed.
- The Superior Court affirmed, holding Banks failed to show prejudice from counsel’s omission and that the verdict was not so contrary to the evidence as to shock the conscience.
Issues
| Issue | Plaintiff's Argument (Banks) | Defendant's Argument (Commonwealth/PCRA Ct.) | Held |
|---|---|---|---|
| Whether PCRA court erred in dismissing without a hearing when trial counsel purportedly failed to preserve a weight-of-the-evidence claim | Banks: Trial counsel was ineffective for not filing a post-sentence motion to preserve a weight challenge based on his medical/assault history and PTSD, which would have supported self-defense or reduced culpability | Commonwealth/PCRA Ct.: Claim was waived earlier when appointed counsel withdrew the weight claim on direct appeal; alternatively, Banks cannot show prejudice because the record supported the verdict | Denied — no hearing required; dismissal affirmed because Banks failed to show prejudice and the verdict did not shock the conscience |
| Whether counsel’s failure to preserve weight claim constitutes ineffective assistance that warrants relief | Banks: Preservation would have allowed appellate review and may have changed outcome given testimony and alleged additional evidence | PCRA Ct.: Even if preserved, the evidence did not establish a result so contrary to justice; jury heard self-defense evidence and instruction; alternative avenues (retreat) undermined defense | Denied — prejudice prong not met; reasonable probability of different result not shown |
| Whether additional unpresented evidence of Banks’ past assaults/mental state would have altered the outcome | Banks: More detailed medical/mental-health proof would bolster his perception of threat and support self-defense/imperfect self-defense | PCRA Ct.: Banks did not develop a claim that counsel failed to investigate or show counsel knew/should have known of the evidence; those claims are waived | Denied — claims waived and undeveloped; record contained prior injury evidence already |
| Whether appointed counsel’s prior withdrawal of the weight claim on direct appeal forecloses this PCRA attack on trial counsel | Banks: Focuses blame on trial counsel; seeks relief via PCRA for trial counsel’s omission | PCRA Ct./Commonwealth: Issue should have been directed at appointed counsel who withdrew the claim during preparation for direct appeal nunc pro tunc; unitary review rules bar relitigation | Court notes procedural point and proceeds to deny on merits; waiver/forfeiture emphasized |
Key Cases Cited
- Abu-Jamal v. Commonwealth, 941 A.2d 1263 (Pa. 2008) (standard of review for PCRA denials)
- Miller v. Commonwealth, 102 A.3d 988 (Pa. Super. 2014) (review of PCRA dismissal without a hearing)
- Perry v. Commonwealth, 959 A.2d 932 (Pa. Super. 2008) (ineffective assistance legal framework)
- Houser v. Commonwealth, 18 A.3d 1128 (Pa. 2011) (weight-of-the-evidence standard)
- Rivera v. Commonwealth, 983 A.2d 1211 (Pa. 2009) (elements of first-degree murder and intent)
- Sepulveda v. Commonwealth, 55 A.3d 1108 (Pa. 2012) (malice and self-defense relation)
- Briggs v. Commonwealth, 12 A.3d 291 (Pa. 2011) (deadly-weapon inference to intent to kill)
- Torres v. Commonwealth, 766 A.2d 342 (Pa. 2001) (when self-defense is properly at issue)
- Mouzon v. Commonwealth, 53 A.3d 738 (Pa. 2012) (self-defense and defendant’s burden to produce some evidence)
- Ventura v. Commonwealth, 975 A.2d 1128 (Pa. Super. 2009) (retreat and imperfect self-defense)
- Barnett v. Commonwealth, 25 A.3d 371 (Pa. Super. 2011) (procedure re: raising ineffectiveness on direct appeal)
- Holmes v. Commonwealth, 79 A.3d 562 (Pa. 2013) (later decision affecting Barnett)
- Janda v. Commonwealth, 14 A.3d 147 (Pa. Super. 2011) (development requirement for PCRA claims)
- Jette v. Commonwealth, 23 A.3d 1032 (Pa. 2011) (no hybrid representation; pro se filings while counsel appointed not considered)