Com. v. Davis, E. (memorandum)
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J-S77029-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ELI DAVIS Appellant No. 983 EDA 2012 Appeal from the PCRA Order of March 8, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0610141-2006 BEFORE: MUSMANNO, J., WECHT, J., and PLATT, J.* MEMORANDUM BY WECHT, J.: FILED MAY 17, 2013 Eli Davis ( Appellant ) appeals the denial of his petition for relief filed under the Post Conviction Relief Act ( PCRA ).1 After review, we affirm. On January 28, 2008, following a jury trial, Appellant was convicted of first-degree murder, 18 Pa.C.S.A. § 2502, and firearms not to be carried without a license, 18 Pa.C.S.A. § 6106. That same day, Appellant was sentenced to life imprisonment for the murder conviction and a concurrent two-and-a-half to five-year prison term for the firearms conviction. Appellant filed a timely direct appeal, and this Court affirmed the judgment ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541, et seq. J-S77029-12 of sentence. Commonwealth v. Davis, 560 EDA 2008 (Pa. Super. June 12, 2009) (unpublished memorandum). Appellant filed a timely PCRA petition on March 15, 2011, in which Appellant claimed that trial counsel was ineffective. Appellant alleged that the trial court gave inadequate jury instructions on imperfect self-defense and voluntary manslaughter, and that trial counsel was ineffective for failing to object or to insist upon a proper instruction. PCRA Petition, 3/15/2011, at 5-11. The Commonwealth moved to dismiss the petition. On March 8, 2012, the PCRA court dismissed the petition without a hearing. This appeal followed. The PRCA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. On August 1, 2012, the PCRA court filed its Rule 1925(a) opinion. On appeal, Appellant raises one issue: Was the Appellant deprived of effective assistance of counsel in failing to request that the jury be fully and properly charged as to voluntary manslaughter, 18 Pa.C.S. 2503(b)? Appellant s Brief at 3. The standard of review for an order denying post-conviction relief is limited to whether determination, and the record whether supports that decision the is post-conviction court s free error. of legal Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. -2- J-S77029-12 Super. 2008). Where ¦ there is record support for a PCRA court s credibility determinations, we, as a reviewing court, are bound by those determinations. Commonwealth v. Abu-Jamal, 720 A.2d 79, 93 (Pa. 1998) (citation omitted). The applicable test for ineffectiveness of counsel is as follows: [T]he appellant must overcome the presumption of competence by showing that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel s ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different. Commonwealth v. Bomar, 826 A.2d 831, 855 (Pa. 2003). Failure to satisfy a single prong of the above test will result in the rejection of the underlying claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. Super. 2002). Following a review of the record, we adopt the PCRA court s wellreasoned August 1, 2012 opinion (finding that a jury instruction on voluntary manslaughter, unreasonable belief of self-defense was not warranted due to lack of evidentiary support; and finding that [t]he facts of the instant case do not support voluntary manslaughter based on an unreasonable belief of ¦ defense of another ). A copy of that opinion is attached hereto for reference. We agree with the PRCA court that there is no arguable merit to the underlying legal issue. Therefore, Appellant cannot prevail on his ineffective assistance of counsel challenge. -3- J-S77029-12 Order affirmed. Jurisdiction relinquished. Judgment Entered. Prothonotary Date: 5/17/2013 -4-
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