Com. v. Booker, F.
1544 WDA 2016
| Pa. Super. Ct. | Oct 12, 2017Background
- On May 11, 2012, Frank Booker (riding in the rear of an Escalade) pulled a gun, demanded property from driver Calvonne Rollins, then fired multiple shots; Rollins died. Booker fled and was later arrested. No weapon was found on the victim at the scene.
- Trial produced witness identifications of Booker as the shooter; two bullet fragments were recovered but forensic evidence did not establish they came from two different guns.
- A jury convicted Booker of third-degree murder, possession-related firearms offenses, and recklessly endangering another person; sentence imposed consecutive terms.
- Booker appealed; the Superior Court affirmed, finding he waived jury-charge claims by failing to object at trial; the Pennsylvania Supreme Court denied allowance of appeal.
- Booker filed a pro se PCRA petition claiming trial counsel was ineffective on four grounds; counsel filed a Turner/Finley brief and withdrew; the PCRA court dismissed without a hearing. Booker appealed and the Superior Court affirmed, adopting the PCRA court’s opinion.
Issues
| Issue | Plaintiff's Argument (Booker) | Defendant's Argument (Commonwealth / trial counsel) | Held |
|---|---|---|---|
| 1) Counsel ineffective for not timely objecting to trial court's refusal to charge on justification (self-defense) | The court should have instructed the jury on justification; counsel was ineffective for failing to object so the claim was preserved | The record lacked evidence to reasonably support a justification charge (no evidence others had guns; Booker was aggressor); counsel not ineffective for failing to pursue a meritless charge | Denied — underlying charge lacked arguable merit; no ineffective assistance |
| 2) Counsel ineffective for not timely objecting to refusal to charge on voluntary manslaughter (lesser-included) | Evidence supported manslaughter (imperfect self-defense or heat-of-passion) and counsel should have preserved the claim | Facts did not support manslaughter (no serious provocation, no sudden passion, killing was intentional during attempted robbery); counsel not ineffective for failing on a meritless claim | Denied — no arguable merit and thus no ineffectiveness |
| 3) Counsel ineffective for advising Booker not to testify / inadequate consultation about right to testify | Booker contends counsel gave unreasonable advice and deprived him of his right to testify | Court conducted a thorough colloquy confirming Booker knew his rights and made the voluntary decision not to testify; counsel reasonably advised against testimony given prior convictions that would be used to impeach | Denied — adequate colloquy, reasonable strategy, no prejudice |
| 4) Counsel ineffective for failing to call Dr. Alice Applegate (forensic psychologist) to support unreasonable-belief theory of defense | An expert could have supported Booker’s subjective belief (PTSD/mental deficits) and shown a basis for justification/imperfect self-defense | Dr. Applegate’s sentencing testimony did not support a justification theory; defense had retained a mental-health expert before trial who did not diagnose PTSD; expert testimony was not necessary or would not have created prejudice because Booker was the initial aggressor and could have retreated | Denied — no prejudice and counsel had reasonable strategic basis |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (defendants must prove counsel's deficient performance and prejudice)
- Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (three‑prong Strickland framework adopted in Pennsylvania)
- Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005) (ineffectiveness is a distinct claim for PCRA review)
- Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012) (discusses when self-defense/justification is supported by evidence)
- Commonwealth v. Busanet, 54 A.3d 35 (Pa. 2012) (no relief where defendant was initial aggressor and could have retreated)