Com. v. Welborne (memorandum)
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J-S13029-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RICKY WELBORNE Appellant No. 1756 EDA 2012 Appeal from the PCRA Order June 1, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0204481-2005 BEFORE: BOWES, J., GANTMAN, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, J.: Filed: March 19, 2013 Appellant, Ricky Welborne, appeals from the order entered in the Philadelphia County Court of Common Pleas, denying his petition brought pursuant to the Post Conviction Relief Act ( PCRA ).1 We affirm. This Court previously set forth the relevant facts and procedural history of this case as follows: This case arises from the shooting of [Victim] on May 2, 2004. In the early morning hours of that day, [Victim], a known drug dealer, returned to his residence in Philadelphia, with his wife, Ebony Morse, and proceeded to eat a meal. Shortly thereafter, he responded to a knock on his door by [Appellant] (also known as Rolex ), who burst through the entryway of the premises brandishing a .357 revolver. In response to [Victim s] question What s up? , [Appellant] stated You know what s up and proceeded to shoot him twice in the abdomen. [Appellant] ____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546. J-S13029-13 then turned to [Victim s] wife, asked her the location of certain monies, and confiscated a safe containing $1,650.00 in cash from [Victim s] bedroom. He then exited the premises and was subsequently arrested on charges arising from this incident. Thereafter, [Appellant] was tried before a jury on the charges of attempted murder, aggravated assault, carrying a firearm without a license, carrying a firearm on public streets or public property of Philadelphia, and other theftrelated offenses. During the proceedings, the Commonwealth produced sufficient evidence establishing that [Appellant] came to [Victim s] residence and shot him twice in the abdomen, resulting in serious bodily injuries that required [Victim] to undergo several surgeries and a lengthy hospitalization. [Appellant] was positively identified by [Victim s] wife, and by [Victim]. [Appellant] also testified, before the jury, that he had entered [Victim] s residence and discharged his weapon upon [Victim], proffering that he had done so in selfdefense. [Appellant] alleged that the dispute had erupted over money that he owed to [Victim] and that [Victim] had threatened him on the date of the incident. After considering the evidence, including [Appellant] s testimony supporting an alleged theory of self-defense, which it found incredible, the jury rendered a verdict convicting [Appellant] of aggravated assault, carrying a firearm without a license, and carrying a firearm on public streets or public property of Philadelphia. The trial court subsequently sentenced [Appellant] to an aggregate term of 15 to 30 years in a state correctional institution, followed by 7 years of reporting probation. Commonwealth v. Welborne, 970 A.2d 485 (Pa.Super. 2009), appeal denied, 608 Pa. 667, 13 A.3d 478 (2010). This Court affirmed the judgment of sentence, and our Supreme Court denied review on December 7, 2010. See id. Appellant timely filed a pro se PCRA petition on December 30, 2010. -2- J-S13029-13 The court appointed counsel, who filed an amended petition. On April 27, 2012, the court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, and dismissed the petition on June 1, 2012. notice of appeal on June 26, 2012. Appellant timely filed a The court did not order a concise statement of errors complained on appeal pursuant to Pa.R.A.P. 1925(b). Appellant presents seven issues for our review: DID THE [PCRA] COURT ERR IN DISMISSING APPELLANT S PCRA CLAIM ON THE ISSUE OF WHETHER PROSECUTORIAL MISCONDUCT OCCURRED WHEN THE PROSECUTOR FAILED TO CORRECT EVIDENCE IN THE CASE WHEN THE WITNESS TESTIFIED FALSELY OR IN STARK CONTRAST TO THE STATEMENT HE PROVIDED TO THE PROSECUTOR IMMEDIATELY PRIOR TO COMMENCEMENT OF THE TRIAL, WHERE THE PROSECUTOR STATED THAT THERE WAS NO GUN DURING HER CLOSING ARGUMENT, WHEN [VICTIM] TOLD HER IMMEDIATELY PRIOR TO TRIAL THAT HE DID POSSESS A GUN THAT APPELLANT TOOK AWAY FROM THE HOUSE AFTER THE SHOOTING? WHETHER THE PCRA COURT ERRED IN DETERMINING THAT A MISTRIAL WAS NOT WARRANTED WHEN [VICTIM] TOOK OR ATTEMPTED TO CLAIM A PRIVILEGE AGAINST SELF INCRIMINATION UNDER THE PENNSYLVANIA (PA.CONST. ART. I, § 9) AND U.S. CONSTITUTIONS (U.S. CONST., V AMEND.) IN THE PRESENCE OF THE JURY? WHETHER THE PCRA COURT ERRED IN DETERMINING THAT APPELLANT S CLAIM THAT HEARSAY TESTIMONY WAS ADMITTED IN VIOLATION OF THE CONFRONTATION CLAUSES OF THE U.S. CONST., (VI AMEND.) AND PENNSYLVANIA (PA.CONST., ART. 1, SEC. 9) CONSTITUTIONS LACKED MERIT? WHETHER THE PCRA COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING ON APPELLANT S CLAIM THAT TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO MOVE THE COURT FOR A -3- J-S13029-13 MISTRIAL WHEN [VICTIM] TOOK OR ATTEMPTED TO CLAIM A PRIVILEGE AGAINST SELF INCRIMINATION UNDER THE PENNSYLVANIA (PA.CONST. ART. I, § 9) AND U.S. CONSTITUTIONS (U.S. CONST., V AMEND.) IN THE PRESENCE OF THE JURY? DID THE [PCRA] COURT ERR IN DISMISSING APPELLANT S PCRA CLAIM ON THE ISSUE OF WHETHER APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO CHALLENGE ON APPEAL THE COURT S RULING ON COMPLAINANT S ASSERTION OF HIS PRIVILEGE AGAINST SELF INCRIMINATION UNDER THE PENNSYLVANIA (PA.CONST. ART. I, § 9) AND U.S. CONSTITUTIONS (U.S. CONST., V AMEND.), PARTICULARLY WHERE THE ASSERTION WAS MADE IN THE PRESENCE OF THE JURY? WHETHER THE PCRA COURT ERRED IN HOLDING THAT APPELLANT WAS NOT ENTITLED TO AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL S ACTIONS WERE REASONABLE AND EVIDENT FROM THE RECORD WHERE: (A) TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR S FAILURE TO CORRECT EVIDENCE OR FACTS KNOWN TO BE FALSE OR INCORRECT; AND (B) TRIAL COUNSEL FAILED TO QUESTION [VICTIM] ABOUT HIS POSSESSION OF A WEAPON DURING THE INCIDENT IN THE MIDST OF A SELF DEFENSE CLAIM? WHETHER THE PCRA COURT ERRED IN DETERMINING THAT APPELLANT S CLAIM THAT TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO OBJECT TO THE ADMISSION OF HEARSAY TESTIMONY IN VIOLATION OF THE CONFRONTATION CLAUSES OF THE U.S. CONST., VI AMEND.) AND PENNSYLVANIA (PA.CONST., ART. 1, SEC. 9) CONSTITUTIONS LACKED MERIT? (Appellant s Brief at 5-6). Appellant s issues are inter-related; we combine them for purposes of disposition. In issues one and six, Appellant complains the prosecutor committed misconduct by misstating and omitting material facts about -4- J-S13029-13 Victim s gun possession. Prior to trial, Victim informed the prosecutor he possessed a gun on the day in question; the Commonwealth informed the court and defense counsel about Victim s new recollection of events. In light of Victim s statement about a gun, Appellant argues the prosecutor blatantly distorted the record by failing to question Victim about the gun and arguing to the jury that there was no gun recovered at the scene. Appellant recognizes that the prosecutor s statement was accurate, as there was no gun found at the scene, but effectively claims the Commonwealth committed prosecutorial misconduct by declining to pose questions to Victim on direct examination that would have supported Appellant s self-defense claim. In Appellant s view, trial counsel s failure to object to such misconduct represented ineffective assistance. In issues two, four, and five, Appellant argues trial counsel was ineffective in declining to seek a mistrial after the court wrongly denied Victim s request to assert his Fifth Amendment privilege. Appellant takes the position that Victim had a Fifth Amendment right not to respond to the Commonwealth s questions about drug dealing, but the court interfered with that right by requiring Victim to testify. Appellant contends a mistrial was warranted, and counsel was prejudicially ineffective in failing to seek one. Relatedly, Appellant states appellate counsel was serially ineffective in not raising this issue on direct appeal. -5- J-S13029-13 In issues three and seven, Appellant asserts trial counsel was ineffective where counsel did not object to hearsay testimony that violated the Confrontation Clause. According to Appellant, police testimony referencing identification of two witnesses fell within the scope of the Confrontation Clause because it was testimonial. Appellant concludes the failure to object was prejudicial and tainted the outcome of his trial. On each issue, we disagree with Appellant s contentions. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Sandy L.V. Byrd, we conclude Appellant s issues merit no relief. The PCRA court opinion properly disposes of the questions presented. (See PCRA Court Opinion, dated August 15, 2012, at 2-11) (finding: (1; 6) counsel s decision not to question Victim about gun was reasonable tactical decision where Victim had given favorable testimony about Appellant by disclaiming all memory of incident and refusing to identify Victim at trial; counsel reasonably avoided asking Victim about gun out of concern that gun reference could open door to unfavorable testimony; Appellant testified at length about Victim s possession of gun at scene; prosecutor did not commit misconduct in choosing not to ask Victim about gun and objection to prosecutor s examination would have been meritless; (2; 4; 5) Victim had no Fifth Amendment privilege with respect to drug dealing question because he had already been convicted and sentenced on drug dealing activities referenced -6- J-S13029-13 in question; any objection to court s privilege ruling would have been meritless; appellate counsel was not serially ineffective; (3; 7) passing reference to identification from two witnesses was not testimonial, nor was it even hearsay; testifying detective made no specific references about statements by Mustafa; objection on Confrontation Clause grounds would have been overruled; counsel was not ineffective for failing to raise baseless objection). Accordingly, we affirm on the basis of the PCRA court opinion. Order affirmed. -7-
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