Case Information
*1 J-A21010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA Appellee
v.
DOUGLAS EUGENE STEPHENSON,
Appellant No. 819 WDA 2016 Appeal from the PCRA Order Entered May 9, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016742-2009 BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 20, 2017
Appellant, Douglas Eugene Stephenson, appeals from the post- conviction court’s May 9, 2016 order denying his petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
Briefly, a jury convicted Appellant of second-degree murder, robbery, and conspiracy to commit robbery, based on evidence that he and a cohort,
Travis Hawkins, attempted to rob a jitney driver, during which Hawkins shot
and killed the driver. 1 Appellant was sentenced to a term of life
incarceration, without the possibility of parole, for his murder conviction, and
a consecutive term of 72 to 144 months’ incarceration for his conspiracy
____________________________________________ For a detailed recitation of the facts of Appellant’s case, see PCRA Court
Opinion (PCO), 1/19/17, at 2-5.
J-A21010-17
offense. This Court affirmed Appellant’s judgment of sentence on August 6, 2013, and our Supreme Court denied his subsequent petition for allowance of appeal. Commonwealth v. Stephenson , 83 A.3d 1058 (Pa. Super. 2013) (unpublished memorandum), appeal denied , 81 A.3d 77 (Pa. 2013).
On April 2, 2014, [Appellant] filed the pro se PCRA petition that underlies the present appeal. Counsel was appointed and an amended petition was filed on Appellant’s behalf on September 9, 2015. Following a PCRA hearing on May 9, 2016, the court issued an order denying Appellant’s petition. Appellant filed a timely notice of appeal, and he also timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement. Thereafter, the court filed a Rule 1925(a) opinion addressing the following three claims that Appellant raises herein:
I. Whether trial counsel gave ineffective assistance for failing
to request a full and proper instruction advising that the jury cannot use certain statements made by witnesses as substantive evidence but they are only to be used as impeachment?
II. Whether trial counsel gave ineffective assistance for failing
to object to written instructions being sent to the jury, in lieu of oral instructions, which violated Pa.R.Crim.P. 646(C)(4)?
III. Whether the trial court gave an illegal sentence [on]
conspiracy to commit robbery when, under the facts of this case, criminal conspiracy merged for purposes of sentencing with the crime of second-degree murder?
Appellant’s Brief at 5.
We have reviewed the certified record, the briefs of the parties, and the applicable law. We have also reviewed the Rule 1925(a) opinion of The
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J-A21010-17
Honorable Randal B. Todd of the Court of Common Pleas of Allegheny County. We conclude that Judge Todd’s well-reasoned decision accurately disposes of the three issues raised by Appellant herein. 2 See PCO at 5-11 (rejecting Appellant’s first issue, as he failed to demonstrate that he was prejudiced by trial counsel’s not objecting to the jury instruction); id. at 11- 12 (finding no merit to Appellant’s second issue, as he failed to establish arguable merit in, or resulting prejudice from, his claim that trial counsel should have objected to the court’s sending a note to the jury in response to a question); id. at 14-15 (rejecting Appellant’s contention that his sentence is illegal because his conspiracy for robbery conviction should have merged for sentencing purposes with his second-degree murder offense). 3 ____________________________________________
2 We note that Appellant presented four issues in his Rule 1925(b) statement, but he has abandoned one of those claims in his brief to this Court. Thus, we do not rely on the portion of Judge Todd’s decision which addresses Appellant’s abandoned issue. See PCO at 12-14. In response to Appellant’s illegal sentencing claim, we add one brief note.
Appellant’s argument rests on the premise that the felony offense underlying his second-degree murder conviction was conspiracy to commit robbery and, therefore, his sentence for conspiracy must merge with his murder sentence. This argument is meritless for several reasons, but two are worth mentioning. First, conspiracy to commit robbery is not a felony offense that can underlie a second-degree murder conviction. See 18 Pa.C.S. §§ 2502(b) (“A criminal homicide constitutes murder of the second degree when it is committed while [the] defendant was engaged as a principal or an accomplice in the perpetration of a felony.”); 2502(d) (defining “Perpetration of a felony” as: “The act of the defendant engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.”). Second, Appellant was convicted of robbery in this case, and that offense (Footnote Continued Next Page)
- 3 -
J-A21010-17
Accordingly, we adopt Judge Todd’s rationale as our own, and affirm the order denying Appellant’s PCRA petition on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
(Footnote Continued) _______________________
merged with his murder conviction for sentencing purposes. See Order of Sentence, 11/7/11. Thus, Appellant’s argument that his conspiracy to commit robbery conviction should also merge is meritless.
- 4 -
Circulated 11/01/2017 12:35 PM IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA 44,
NO: CC200916742 v.
Appeal DOUGLAS EUGENE STEPHENSON,
OPINION Petitioner.
JUDGE RANDAL B. TODD COPIES SENT TO: Stephen A. Zappala, Jr. District Attorney By Michael Streily, Esquire Assistant District Attorney 401 Courthouse 436 Grant Street Pittsburgh, PA 15219 Counsel Record for Petitioner: Thomas N. Farrell, Esquire Farrell & Associates Ross Street, Suite [1] Pittsburgh, PA 15219 Douglas Eugene Stephenson, Petitioner #KG4514 SCI Camp Hill P.O. Box Camp Hill, PA 17001-8837 *6 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA NO: CC200916742
v.
DOUGLAS EUGENE STEPHENSON,
Petitioner.
TODD, J.
January 19, 2017
OPINION This an appeal from an order entered on May 9, 2016 dismissing Petitioner's PCRA Petition after hearing on May 3, 2016. On June 8, 2016 Petitioner filed a timely Notice of Appeal. On June 20, 2016 1925(b) Order entered ordering Petitioner file Concise Statement Matters Complained of on Appeal. On July 11, 2016 Petitioner filed an Extension for Statement of Errors Complained on Appeal which granted by Order of July 12, 2016. On July 14, Petitioner filed his Statement Errors Complained on Appeal setting forth following claims:
Whether trial counsel gave ineffective assistance for failing request a full proper instruction advising that jury cannot use certain statements made by witnesses substantive evidence but they are only to be used impeachment?
2. Whether trial counsel gave ineffective assistance for failing object to
written instructions being sent jury, lieu oral instructions, which violated Pa.R.Crim.P. 646(c)(4)?
3. Whether trial counsel gave ineffective assistance when she permitted the
Commonwealth present the taped statement of Travis Hawkins, the Co - Defendant, violation of the Confrontation Clauses of the Pennsylvania and United States Constitutions?
4. Whether the trial court gave an illegal sentence of conspiracy commit
robbery when, under the facts of this case, criminal conspiracy merged for purposes of sentencing with the crime of second degree murder?" BACKGROUND:
The factual background regarding this case set forth in the 1925(b) opinion of January 14, 2013 follows:
"This matter arises out the shooting death of James William, Jr., a 53 year old jitney driver in the Sheridan area of the City of Pittsburgh on July 7, 2009. The police received a call in the early morning hours of July 7, 2009 that a vehicle had run into a yard at the corner of Zephyr and Ashlyn Streets. (T., p 33) Investigating officers found a 1998 Jeep Cherokee crashed in the yard with an unresponsive black male slumped over in the driver's seat of the vehicle with the motor running, vehicle gear and the headlights on. (T., p. 38) Paramedics called the scene 1:55 a.m. found victim had sustained a fatal gunshot wound his chest. (T., p. 60) The area was secured and processed a crime scene. The vehicle was examined for fingerprints a partial left palm impression print was obtained from passenger's side window. (T., p. 105) A search canvas of neighborhood performed but there were no witnesses discovered and no additional evidence recovered. (T., pp. 67-71)
At trial the Commonwealth called Dr. Karl E. Williams of the Allegheny County Medical Examiner's Office who testified that the victim died a gunshot would that entered the left side his chest, went through the right side heart, diaphragm, liver then exited right side his body. (T., p.
77) Dr. Williams also testified that victim did not have signs any bruises, scratches, scrapes or contusions on his head or neck. (T., p.
The Commonwealth then called Detective Vonsal Boose who testified that on October 9, 2009, approximately 3 months after shooting, Dana Williams brought police station by family member because she purportedly had information concerning shooting. (T., 123) Detective Boose testified that Dana Williams described events related shooting, gave recorded statement and viewed photo array. (T., 123) Based on information supplied by Dana Williams, two additional witnesses were developed, Dominique Clark *8 and her sister, Taneshia Clark. Both Dominique Clark and Taneshia Clark gave statements to the police on October 15, 2009. (T., pp. 190-193; 209-214)
The Commonwealth called Dana Williams, Dominique Clark and Taneshia Clark to testify at trial. Each these witnesses testified, however, that they could not recall the events July 7, 2009. Dana Williams did identify Defendant "CK" and acknowledged that she had given statement to the police, but testified repeatedly that she did not recall the events on the night in question. (T., pp. 130-132) Consequently, the tape recording her interview with police on October 9, 2009 was played for the jury. (T., p. 134) In her taped statement she stated that co-defendant, Travis Hawkins, (a/k/a "Twerk") approached the victim with gun. She stated the following:
"Twerk goes to the jitney driver's side, pulls the gun up to him. The jitney driver tries pull the gun out his hand. Basically, they was like tossing like." (Dana Williams Statement, October 9, 2009 - p. 5)
"As Twerk and the jitney driver was like fighting, not really fighting but he trying to take the gun out of his hand." "... that's when Twerk pulled the trigger." (Dana Williams Statement, October 9, 2009 - p. 6)
She further stated that she saw Defendant giving Hawkins the gun used in the robbery. She also stated that Defendant went the passenger's side and "started punching driver in the head. (Dana Williams Statement, October 9, 2009 - p. 6)
Dana Williams' testimony from preliminary hearing of November 13, 2009 also read the jury. (T., pp. 164-173) During this testimony Dana Williams again testified that Defendant handed the gun to Hawkins and that Hawkins then proceeded driver's side door vehicle which time a struggle occurred between Hawkins and the victim. She then testified that, "CK walked passenger's side, opens the door, and I see him punching jitney driver head", at which point the gun went off. (T., p. 160)
Dominique Clark also acknowledged that she was present on night of shooting that Defendant present. (T., p. 181) However, she also testified that she either could not recall what transpired or was told what say what write by police. (T., pp. 182-187) Dominique Clark's statement of October 15, 2009 was then played. She likewise stated that she saw boy with "his whole body is in jitney driver's window." (Dominique Clark Statement, October 15, 2009 - p. 4) She stated that while the victim struggling with gunman, "CK and his friend were on passenger's side." (Dominique Clark Statement, October 15, - 5) She described that his arm was vehicle, but his body wasn't. (Dominique Clark Statement, October 15, 2009 - p.
The Commonwealth then called Taneshia Clark who also acknowledged being present and identified Hawkins as the shooter, but denied seeing Defendant or seeing Defendant near the passenger's side of the vehicle door and stated that she was told write on the array that Defendant was on the passenger's side. (T., pp. 199-202)
The Commonwealth then called Detective James McGee who testified to his interview with Taneshia Clark and her description of events that night.
Detective McGee testified that Taneshia Clark stated:
"At that time Mr. Hawkins, who she referred to as Twerk, and Mr. Stephenson, who she called CK, stated those two left group of people, walked down towards where the jitney was. Ms. Clark said that Mr. Hawkins approached driver's side of the vehicle, and Mr. Stephenson went the passenger's side of the vehicle. She said as soon as they reached the vehicle, she saw Mr. Hawkins reach in and was tussling with the driver. She said she believed they were tussling over gun. She never saw it, but she thought it was gun. At same time she saw Mr. Stephenson leaning passenger's side the window also tussling with the driver vehicle. She said soon they started doing that, she heard one gun shot." (T., pp. 210-211)
The taped statement Taneshia Clark was then played for the jury. (T., p. 215) In her taped statement she, in fact, stated that she saw Hawkins and Defendant go to the car and that she saw Hawkins and the victim wrestling for the gun. She further said that while Hawkins jitney driver were "tussling" over the gun, that Defendant was on the passenger's side car and that his upper body was car when she heard the gun shot. (Taneshia Clark Statement, October 15, 2009 - pp. 5-6)
After it determined that co-defendant, Travis Hawkins, invoking his Fifth Amendment rights refusing testify, the Commonwealth played the taped statement Travis Hawkins. (T., p. 175) In Hawkins' statement of October 16, 2009, after waiving his Miranda rights, Hawkins stated that:
"I went up there I pointed gun driver, pointed gun to him; said, Throw it off. He grabbed gun, he started wrestling with the gun and me, I was scared. So, I tried pull back with the gun with both hands and then it accidentally shot." (Travis Hawkins Statement, October 16, 2009 - p.
He also testified he informed Defendant that he was about rob victim and, although lie initially changed his mind, he ultimately decided do it.
He testified he didn't know whether someone else on the passenger's side of car because "I was too scared. I too focused on trying grab the gun." (Travis Hawkins Statement, October 16, - 4) The Commonwealth also called Detective John Godlewski, an expert fingerprint analysis, who testified partial left palm impression lifted from the passenger window the
deceased's vehicle belonged to Defendant. (T., p. 114)
The Commonwealth then called Detective James Smith who testified that Defendant had a tattoo on his right hand that said "CK All Day" and also testified that the phrase "throw it off' means same as "stick em up". (T., After being appropriately instructed, jury found Defendant guilty set forth above. The jury returned a verdict on August 3, 2011 finding Petitioner guilty of Second Degree Murder, Robbery - Serious Bodily Injury Criminal Conspiracy - Robbery. Petitioner was sentenced to term life imprisonment for Second Degree Murder and consecutive term 72 144 months for Criminal Conspiracy - Robbery. On August 6, 2013 the Superior Court affirmed judgment sentence. On November 26, 2013 Petitioner's Petition for Allowance Appeal Supreme Court denied, On April 2, 2014 Petitioner filed a pro se PCRA Petition and on May 13, 2014 counsel appointed. Petitioner's Motions for Extension of Time to File an Amended PCRA Petition were granted an Amended PCRA Petition was filed on September 9, 2015. The Commonwealth filed an Answer Amended PCRA Petition on February 4, 2016. On May 2, 2016 hearing held which time trial counsel testified addressing the issues raised in the petition. On May 9, 2016 an order entered dismissing PCRA Petition and this appeal followed.
DISCUSSION:
Petitioner's first issue is that trial counsel was ineffective for failing request a jury instruction certain alleged inconsistent statements made by Dana Williams Taneshia Clark could only be used for impeachment purposes and not substantive evidence. Petitioner also argues that counsel was ineffective for failing object following instruction that was given jury:
"Now, you have heard evidence that witnesses make statements on earlier occasions that were inconsistent with their present testimony. You may, if you
choose, regard this evidence as proof truth of anything that the witness said in an earlier statement. You may also consider this evidence to help you judge the credibility and the weight of the testimony given by the witness at the time of trial." (T., pp. 284-285)
Petitioner submits that instruction fails differentiate between those inconsistent statements that might be used as substantive evidence and those that may only be used for impeachment purposes. A prior inconsistent statement made by witness can only be used as substantive evidence when the witness testifies, is subject cross-examination about the statement, and the prior inconsistent statement witness was either: 1) given under oath and subject to penalty of perjury at a trial, hearing or other proceeding or a deposition; 2) is a writing signed were adopted by witness; or, 3) is a verbatim contemporaneous electronic audio tape or videotape recording of an old statement. The law concerning the use of prior inconsistent statements is set forth in Pa.R.E. 803.1 and Commonwealth v. Lively, 610 A.2d 7 (1992). Rule 803.1 provides:
"The following statements are not excluded by the rule against hearsay if the declarant testifies is subject cross-examination about prior statement: (1) Prior Inconsistent Statement of Declarant -Witness. A prior statement by a declarant -witness is inconsistent with the declarant -witness's testimony and: (A) given under oath subject penalty perjury a trial, hearing, or other proceeding, or a deposition;
(B) is a writing signed adopted by declarant; or
(C) is a verbatim contemporaneous electronic, audiotaped, or videotaped recording of an oral statement." Pa.R.E. 803.1
In Commonwealth v. Lively, 610 A.2d 7 (1992) Pennsylvania Supreme Court held:
In an effort ensure that only those hearsay declarations that are demonstrably reliable and trustworthy are considered substantive evidence, we now hold that a prior inconsistent statement may be used substantive evidence only when statement given under oath at a formal legal proceeding; or statement had been reduced writing signed adopted by the witness; or statement is contemporaneous verbatim recording of witness's statements. Commonwealth v. Lively, 610 A.2d 7, 10 (1992)
Petitioner alleges that Detective Evans and Detective McGee testified concerning statements made by Dana Williams and Taneisha Clark that were neither recorded in any manner nor adopted by them and, therefore, jury should have been instructed that those statements could be used for impeachment purposes only.' Specifically Petitioner alleges that Detective Evans testified that Dana Williams told him that she was afraid retaliation when he testified as follows:
Did she give an explanation as to why she took three months before she came forward?
A. Yes, she did. She said that there were threats involved.
Ms. Foreman: Objection; that is hearsay. The Court: I will sustain objection. It is hearsay. Q. What did she tell you?
A. She told me she afraid retaliation.
Q. What did she tell you about incident?" (T., pp. 145-146)
Detective Evans also testified on cross-examination: So she came right into the police station and came up you or another
"Q. detective and said, I have a bunch information on a homicide? I believe she called first before she came spoke my boss. A. You said that prior her testifying here today you saw her crying in
Q.
hallway?
A. That's correct. Is your testimony?
Q.
A. Yes. There is no dispute prior inconsistent statements made by Williams, Taneshia Clark and Dominique Clark contained their preliminary hearing transcripts tape recorded statements that were presented trial could be used substantive evidence and the jury instruction set forth above correct as to those statements.
Q. You keep saying, well, she was afraid. You don't have any firsthand
knowledge that she was fearful? You don't know why she was crying? You are just assuming she was afraid?
A. She told me she was afraid. She told you she was afraid?
Q.
A. Yes. She didn't tell you why?
Q.
A. She said she's afraid retaliation." (T., pp. 151-152) The statements, which were allegedly inconsistent with her trial testimony, were neither recorded any manner nor adopted by Williams.
In addition, Detective James McGee, Detective McGee testified concerning statements allegedly made by him by Taneshia Clark as follows:
"Miss Clark said that Mr. Hawkins approached the driver side the vehicle, and Mr. Stephenson went passenger side of vehicle. She said as soon as they reach the vehicle, she saw Mr. Hawkins reach was tussling with the driver.
She said she believed they were tussling over the gun. She never saw it, but she thought it gun. At the same time she saw Mr. Stephenson leaning passenger side window also tussling with driver of vehicle. She said soon as they started doing that, she heard one gunshot." (T., pp. -211) The statement attributed Clark by Detective McGee Petitioner was "also tussling with the driver" was not recorded or otherwise adopted by Clark. In fact, Clark's recorded statement only stated that Petitioner was on passenger side the vehicle, door was open, Petitioner leaning in. She also stated when Hawkins and the victim were tussling over gun she did not see what Petitioner doing. (Taneshia Clark Recorded Statement, pp. 5-6)
After Taneshia Clark's taped statement played for jury, Detective McGee was cross-examined follows:
"Q. Now, you just sat here listened to this taped statement, but prior to statement being played, when you were asked by Mr. Stadtmiller what Taneshia said to you that day, you indicated that she said she saw my client tussling with victim the car, on other side the car? A. That's correct. But you would agree with me that during taped statement when you
Q. asked her: Okay, well, if Twerk jitney driver were tussling over the gun, what was CK doing? She responds: I don't know what he was doing. You would agree that she never mentioned that he was tussling anyway? On the tape she didn't." (T., 216)
A. In order for Petitioner to be entitled relief on the basis that trial counsel was ineffective, Petitioner must show by a preponderance evidence ineffective assistance of counsel which, in the circumstances particular case, so undermined the truth -determining process that no reliable adjudication guilt or innocence could have taken place.
Commonwealth v. Brady, 741 A.2d. 758, 763 (Pa. Super. 1999) This standard requires Petitioner show: (1) claim is of arguable merit; (2) that counsel had no reasonable, objective basis for his actions; and (3) that, but for the errors or omissions of counsel, there is a reasonable probability that outcome proceedings would have been different, that is, that the petitioner prejudiced by the alleged ineffectiveness of counsel. Comtnomvealth v. Kimball, 724 A.2d 326, 333 (1999). Counsel presumed be effective, however, and the burden rests with petitioner overcome presumption. Commonwealth v. Pierce, 527 A.2d 973, 975 (1987), Commonwealth v. Pirela, 580 A.2d 848, 850 (1990), appeal denied, 594 A.2d 658 (1991). If petitioner fails meet any one of these three prongs, then an evidentiary hearing is not necessary. Commonwealth v. Wells, 578 A.2d 27, 32 (Pa. Super.
At PCRA hearing, when questioned about failing object instruction counsel, although indicating that she had cross-examined Detective McGee about his statement, testified
that she could not recall if she had strategy as it pertained the court's instruction to the jury. (T., pp. 10-12)
The Commonwealth concedes that the testimony of Detective Evans and Detective McGee as set forth above concerning alleged prior inconsistent statements of Dana Williams and Taneshia Clark would not have been appropriately admitted as substantive evidence. However, as argued by the Commonwealth, it clear that Petitioner has failed demonstrate any actual prejudice as a result any failure by trial counsel request an instruction from the court that certain statements Williams, Taneshia Clark and Dominique Clark could only be considered for impeachment purposes. An examination of the prior statements that could properly be considered substantive testimony indicate that Petitioner approached the passenger side vehicle either striking or hitting the victim. Specifically, Dana Williams testified that Petitioner went passenger side the vehicle, opened the door and started punching the jitney driver in head. (Dana Williams Statement, 6) In Taneshia Clark's statement, she stated that Petitioner was on the passenger side vehicle with door open, leaning in the vehicle while Hawkins was leaning and tussling with victim when the gun went off. (Taneshia Clark Statement, pp. S-7) In addition, Dominique Clark's statement also placed Petitioner next the vehicle on passenger side with his arm vehicle. (Dominique Clark Statement, pp. 5-8)
As there properly admitted substantive evidence Petitioner at the passenger side of vehicle, with door open, reaching or leaning punching victim or about time Hawkins struggling with the victim over gun when it went off, Petitioner has failed establish that, but for the failure request jury instructions alleged, there
is reasonable probability that the outcome of the proceedings would have been different. Therefore, there is no merit to Petitioner's claim on this issue it properly dismissed.
Petitioner next argues that counsel ineffective for failing object written instructions being sent the jury, lieu of oral instructions, in violation of Pa.R.Crim.P. 646(c)(4) . Rule 646 provides as follows:
Rule 646. Material Permitted in Possession of the Jury
Currentness
(A) Upon retiring, the jury may take with it such exhibits as the trial judge deems proper, except provided paragraph (C).
(B) The trial judge may permit the members of the jury have for use during deliberations written copies of the portion of the judge's charge on the elements of the offenses, lesser included offenses, any defense upon which the jury has been instructed.
(1) If the judge permits tile jury have written copies of the portion of the judge's charge on the elements the offenses, lesser included offenses, and any defense upon which the jury has been instructed, the judge shall provide portion of charge in its entirety. (2) The judge shall instruct the jury about the use written charge. At a minimum, judge shall instruct jurors that
(a) entire charge, written and oral, shall be given equal weight; and (b) the jury may submit questions regarding any portion of charge.
(C) During deliberations, jury shall not be permitted have:
(1) a transcript of any trial testimony;
(2) copy any written or otherwise recorded confession by defendant; (3) copy information or indictment; and
(4) except provided paragraph (B), written jury instructions.
Pa. R. Crim. P. 646 The record reflects that the jury began its deliberations 11:50 a.m. (T., p 303) At 1:30 p.m. jury foreperson submitted following question:
"If guilt found for felony robbery, are all murder charges still open, options? If so, could you please redefine all them." (T.,
In response question, counsel advised that the following response would be given to jury:
"Dear Mr. Foreperson and Members of the Jury, each of the three counts that the defendant is charged with are separate distinct charges. You have to decide guilty or not guilty on each count separately. If you feel it is necessary to be recharged on criminal homicide, please inform my tip staff, Mr. Woodcock." (T,, pp. 304-305)
Upon receiving the response, the jury foreperson indicated that the jury wished to be recharged on the issue of criminal homicide. Consequently, the jury was brought back to the courtroom re -instructed in the presence of counsel and Petitioner. (T., pp. -
Clearly the response to the jurors' question was not an instruction given in violation of Pa.R.Crim.P. 646 (c)(4). There was no instruction on the law given to jury the note. It simply advised them that they were to deliberate on each count separately previously instructed to advise court if they needed further clarification or reinstruction. In response to note jury requested reinstruction and were, therefore, brought back to the courtroom for further instruction. Consequently, there was no violation Rule 646 (c)(4). In addition, Petitioner has failed to present any evidence demonstrating that he was any way prejudiced by the note that was given the jury. Therefore, counsel was not ineffective in failing object note.
In Petitioner's third issue on appeal, Petitioner claims that trial counsel was ineffective when she failed object admission taped statement Travis Hawkins. At the PCRA hearing trial counsel testified about her strategy regarding Hawkins' taped statement. Counsel testified:
"I believe that Mr. Hawkins deemed unavailable testify and that's why taped statement brought in. However, that statement probably the best evidence that we had to go along with theory of our case, so I wouldn't have objected it because I believe that it helped Mr. Stephenson. He and I had lot conversations about defense case, and from what I recall defense Mr. Hawkins was the perpetrator and the sole perpetrator robbery, that he was the one who masterminded robbery. When they got the gun,
approached the jitney driver, tussled with the jitney driver, shot him, and everyone ran. The taped statement actually only one time referenced a CK, which was Mr. Stephenson's street name at the time, and that reference was made in conjunction with Mr. Hawkins saying something like he telling him he was going to get a gun and go rob this person, and it is Mr. Stephenson, CK, saying, no, don't do it. That's the only reference to CK in there. In fact, the whole statement was Mr. Hawkins saying, you know, he devised this plan to rob this person, he went and got the gun, he went to the jitney car, he tussled with him, the guy was shot. And he even asked during statement whether or not there anybody else involved, and he indicated he didn't recall anybody. So I wouldn't have objected because I believe it helpful to our defense." (PCRA H.T., pp 7-8)
Petitioner did not testify PCRA hearing to refute counsel's testimony that he and counsel agreed to a trial strategy that included the use of Hawkins' statement. Petitioner asserts without Hawkins' statement, Commonwealth would not have been able establish fact that shooting occurred during a robbery and thus provide a basis for the conviction for second-degree murder. In response, trial counsel stated:
"Well, there were other witnesses, girls that came in testify later indicated there was a robbery a gun involved, so, no, I think other statements would've come in any way." (PCRA H.T., p. 8)
This assertion is confirmed by review record. In addition, counsel's strategy was evident in her closing argument when she stated:
"I want talk about statement of Mr. Travis Hawkins, because I think this is most important piece evidence you were given. Mr. Standttniller asked to play tape of Travis Hawkins. I didn't object. He is co-conspirator. I wanted you hear it. I wanted you hear words out this man's mouth as he told them confessed police that he committed crimes that day and he committed crime murder. (T.T., p. 250)
Counsel further stated her argument:
"This man who goes and who confesses the police that he acted alone, never indicated Douglas enticed him any way, that he acted alone, he had the gun, he went over to the car, he made the choice, he made the decision by himself. There was not an agreement, not conspiracy. (T.T.,
A review of Hawkins' statement indicates that Hawkins did not clearly implicate Petitioner as a participant in the robbery or shooting. (Amended PCRA Petition Exhibit I) As trial counsel testified, there was one reference "CK" in which Hawkins stated that after seeing jitney parked on Zephyr Street he "informed CK, told him that I was about to rob him. He said, no first and then I said No, but f _ k it." (Travis Hawkins Statement, p. 3) Hawkins then stated that when he stated that, that meant that he was "not going to do it." (Travis Hawkins Statement, 3) There is no further reference in remainder of statement to Petitioner. Petitioner's allegation that there is nothing in statement that helps his case contradicted by statement itself. Clearly counsel's strategy to use Hawkins' recorded statement to argue to jury that Hawkins never implicated Petitioner in shooting any manner that he acted alone. An examination of counsel's closing argument shows that she emphasized Hawkins' statement and used it buttress further argument that the testimony of Dana Williams, Taneshia Clark Dominique Clark was contradictory and should be rejected.
A review of entire record indicates counsel weighed potential benefit admission of Hawkins' statement light of all other evidence in the case. Counsel established reasonable strategy for not objecting admission the statement. Therefore, counsel not ineffective failing object admission of Hawkins' taped statement.
Petitioner's final claims is that he was given an illegal sentence for conspiracy commit robbery when, under the facts the case, criminal conspiracy merged for purposes of sentencing with the crime second degree murder. Petitioner alleges that his sentence illegal because he received life sentence for second degree murder a consecutive sentence for conspiracy commit robbery. Specifically, Petitioner argued that the jury instructed it could
convict him of second degree murder as either a co-conspirator or as an accomplice. Petitioner alleged that:
"The conspiracy theory incorporated the same elements as the criminal charge of conspiracy. Pursuant an Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), because jury not asked specifically as to what theory they used to convict Petitioner, an increase sentence cannot occur, In other words, it must be assumed that jury found Petitioner guilty second degree murder because conspiracy theory. Id." (PCRA Petition, p. 19) In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, (2000) United States Supreme Court held that any finding which results punishment beyond statutory maximum must be submitted a jury proven beyond reasonable doubt. Commonwealth v.
Haughwout, A.2d 480, 488 (2003) The holding Apprendi is inapplicable in this case. There was no enhancement of sentence based on fact not found by the jury. Whether or not Petitioner found guilty of second degree murder co-conspirator or an accomplice is unrelated his conviction for criminal conspiracy -robbery.
The crime of conspiracy separate distinct from underlying substantive crime. Commonwealth v. Ritter, 615 A.2d. 442, 444 (Pa. Super. 1992) Sentences will merge when: (1) the crimes have same elements, i.e., are lesser included offenses, and (2) the facts the cases are such that the facts which establish one criminal charge also serve basis for the additional criminal charge. Commonwealth v. Servich, 602 A.2d. 1338, 1345 (Pa. Super. Therefore, Petitioner's claim that he was subject to an illegal sentence appropriately dismissed.