Com. v. Keys, T. (memorandum)

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J-S44010-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. TYLER SCOTT KEYS, Appellant No. 1569 WDA 2013 Appeal from the PCRA Order Entered September 6, 2013 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001101-2010 BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J. MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 19, 2014 Appellant, Tyler Scott Keys, appeals from the trial court s September 6, 2013 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm. In 2010, Appellant was convicted by a jury of first-degree murder, arson, aggravated assault, and recklessly endangering another person. He was sentenced on January 5, 2011, to a imprisonment without the possibility of parole. mandatory term of life He filed a timely direct appeal with this Court and we affirmed his judgment of sentence on March 15, 2012. Commonwealth v. Keys, 47 A.3d 1245 (Pa. Super. 2012) (unpublished memorandum). appeal with our Supreme Court. Appellant did not petition for allowance of J-S44010-14 On March 11, 2013, Appellant filed a timely pro se PCRA petition and counsel was appointed. On August 12, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant s petition, along with an opinion explaining its rationale for doing so. On September 3, 2013, the court issued an order denying Appellant s petition. Appellant filed a timely notice of appeal. Herein, he presents nine issues for our review: A. Whether trial counsel was ineffective by failing to argue that the trial court abused its discretion in allowing photographs of the victim to be shown to the jury? B. Whether both trial and appellate counsel were ineffective by not challenging the trial court s omission of a corpus delecti jury instruction? C. Whether trial counsel was ineffective for failing to request an imperfect self-defense jury instruction? D. Whether direct appellate counsel was ineffective in filing an Anders[1] brief? E. Whether the trial court erred in allowing Dr. Vey to suggest the victim was an assault victim? F. Whether trial counsel was ineffective for failing to file a pretrial [motion] in limine ¦ to exclude introduction of a knife as irrelevant and/or in failing to object to the admission of that item given an insufficient foundation which permitted the inference that it may have been used as a weapon at some point during the incident? G. Whether trial counsel was ineffective for failing to object to the Commonwealth[ s] refreshing the recollection of a witness with the transcript of a witness statement? ____________________________________________ 1 Anders v. California, 386 U.S. 738 (1967). -2- J-S44010-14 H. Whether trial counsel was ineffective for failing to seek a change of venue or change of venire given the pervasive pretrial exposure? I. Whether trial counsel was ineffective for failing to challenge the jury array as constituted and in failing to assert a Batson[2] challenge during the voir dire process? Appellant s Brief at 2 (unnecessary capitalization omitted). We have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have reviewed the thorough and wellreasoned opinion of the Honorable Ernest J. DiSantis, Jr., of the Court of Common Pleas of Erie County. We conclude that Judge DiSantis detailed discussion accurately addresses and disposes of the issues presented by Appellant.3 Accordingly, we adopt his opinion as our own and affirm the order denying Appellant s petition on that basis.4 ____________________________________________ 2 Batson v. Kentucky, 476 U.S. 79 (1986). 3 We acknowledge, however, that in regard to Appellant s issue E, the court concluded that this claim framed in terms of trial court error was waived because it could have been presented on direct appeal. See PCRA Court Opinion, 8/12/13, at 16-17 (citing 42 Pa.C.S. § 9544(b)). However, our review of Appellant s petition (and his brief to this Court) reveals that he also asserted appellate counsel s ineffectiveness for not raising this claim on appeal; therefore, we disagree that it is waived. See Appellant s Pro Se Amended Petition, 6/24/13, at 2. Nevertheless, we ascertain no abuse of discretion in the court s alternative conclusion that Dr. Vey s characterization of the victim as an assault victim was appropriate, as it was amply supported by the evidence. PCRA Court Opinion at 17. Moreover, we note that the thrust of Appellant s argument on appeal is that Dr. Vey should not have been permitted to testify that the victim suffered defensive wounds because those same injuries ¦ could have been deemed offensive in nature[,] corroborating [] [A]ppellant s account as the decedent being the aggressor. Appellant s Brief at 9. However, our review of the record (Footnote Continued Next Page) -3- J-S44010-14 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/19/2014 (Footnote Continued) _______________________ confirms that during defense counsel s cross-examination of Dr. Vey, the doctor readily conceded that what can be classified as a defensive wound could also be classified as an offensive wound depending on what occurs ¦. N.T. Trial, 11/9/10, at 251. He also agreed that the defensive wounds could have been wounds that were [suffered] by the deceased when [she was] in an offensive posture ¦. Accordingly, the jury was made aware of Appellant s issue with Dr. Vey s opinion testimony regarding the victim s wounds. Thus, we conclude that Appellant has failed to prove he was prejudiced by the doctor s testimony in this regard, or by appellate counsel s failure to raise this claim on direct appeal. 4 We note that Appellant s undeveloped arguments bolster our conclusion that the court s decision to deny his petition was not an abuse of discretion. In his brief, Appellant provides single paragraph discussions for his first eight issues, and a two-paragraph analysis for his ninth. In five of his issues (lettered A, C, D, E, and H, above), Appellant fails to cite to any legal authority to support his arguments. In three of his other issues (lettered B, F, and I, above), Appellant cites to one case in each, but does not provide any discussion of those decisions or how they apply to the facts at hand. In his most well-supported issue, lettered G, above, Appellant provides citations to two cases. Again, however, he does not proffer any meaningful discussion of the facts or holdings of those decisions and how they support his claims. -4- J-S44010-14 -5- Circulated 08/07/2014 02:35 PM COMMONWEALTH OF PENNSYLVANIA, Appellee, IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA CRIMINAL DIVISION "-' V. rn ,- ,. ;0 .... ..,;of'': TYLER SCOTT KEYS, Appellant --, NO. 1101 of 2010 . '.2.) :r.,:, c:: G; I-'! -0 0 >,' -ij C-' " " .c.n c - f',') (::,) ~'. ;--, - CJ ·-"1 C-. 1-' 1,.-.'-; C; , OPINION AND NOTICE ,- '--... ' - :-:--. , """': .. f'v This matter comes before the Court on Petitioner's pro se Petition For PostConviction Collateral Relief and counseled Supplement To Motion For Post Conviction Collateral Relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. I. BACKGROUND OF THE CASE l This case involves arson and the murder of Peggy Sue Gaerttner ("victim"), which occurred on March 3, 2010, at 619 East 28th Street, Erie Pennsylvania. On that date, the victim resided in the downstairs apartment at 619 East 28 th Street. Petitioner's cousin, Darryl Gibbs, resided in the upstairs apartment with his girlfriend. 2 Petitioner was staying at Gibbs' apartment on the day of the murder/arson, and approximately three days prior thereto. N.T. Trial (Day 1),11/09/10, at 19-21, 25-27. On the morning of March 3, 2010, Petitioner and Gibbs ate breakfast and played videogames. At approximately 2:20 p.m. or 2:25 p.m., Gibbs left the apartment for work, and Petitioner walked with him to the bus stop. Once at the bus stop, the I The facts are derived from the trial testimony. 2 Gibbs' apartment door was located at the back of the house. To access the basement from his apartment, Gibbs would have to walk out the apartment and use another staircase. The staircase, available to both tenants, was near the victim's apartment. Moreover, Gibbs and the victim had their own washers and driers in the basement. At the time of the murder, Gibbs' clothes dryer was not working. N.T. Trial (Day 1),11/09/10. at 20,28-30. Circulated 08/07/2014 02:35 PM Petitioner continued walking to his old apartment in order to pick up his clothing. N.T. Trial (Day 1) 11/09/10, at 21-22,26-27. At approximately 3:30 p.m., Petitioner arrived at Kyle Bethea's home, located at 833 East 28 th Street. borrowed. Petitioner returned Bethea's book bag that he had previously Petitioner did not appear to act out of character and stayed for approximately 10 minutes and left. During the visit, Bethea noticed red dots on Petitioner's socks and a cut to Petitioner's finger. N.T. Trial (Day 1) 11/09/10, at 59-60, 63,66. At approximately 4:00 p.m., Gibbs called Bethea and asked him to check Gibbs' apartment to make sure Petitioner locked the door. Bethea arrived at Gibbs' house around 4:30.p.m. and saw smoke coming from the upstairs apartment. Bethea called 911 and then knocked on the front door. When no one answered, he went to the back of the house and checked Gibbs' door, which was ajar. Due to the smoke, he was unable to go to the upstairs apartment. N.T. Trial (Day 1) 11/09/10, at 61-62. At approximately 4:30 p.m., Gibbs received a call from Bethea, informing him that his house was on fire. Gibbs called his grandfather for a ride, and 10 minutes later, his grandfather picked him up, got to the house, and saw the fire. N.T. Trial (Day 1) 11/09/10, at 23-24. Between 4:30 p.m. and 5:00 p.m., Petitioner arrived at the home of the victim's sister, Barb Fletcher, located at 716 East 24th Street. 3 Petitioner went inside Fletcher's home and told her that he needed to speak with her. Fletcher, who was speaking with her landlord and paying her rent, told him to wait a minute. Petitioner waited for approximately 5 minutes and told her he was going to the store and would come back. 3 Ms. Fletcher had known Petitioner for two years. N.T. Trial (Day 1) 11/09/10, at 68. 2 Circulated 08/07/2014 02:35 PM Petitioner and Shi'Dee Beason, who was outside on Fletcher's porch, left and did not come back. While inside Fletcher's home, Petitioner's demeanor was normal and she did not notice any injuries. N.T. Trial (Day 1) 11/09/10, at 67-72,73,75. After Petitioner exited Fletcher's home, he asked Shi'Dee Beason to walk with him to a store, which was 3 minutes away. While walking, Beason noticed scratches on Petitioner's neck, blood all over his jacket, cuts on his pants by his ankle, and an injury to his knuckle. Petitioner told him he "got into it with a woman", defended himself, beat her up, killed her, and burned down the house. Beason asked Petitioner if he was joking around, and Petitioner replied, "No." Afterwards, Beason stopped walking with Petitioner and returned to Fletcher's house. N.T. Trial (Day 1) 11/09/10, at 35-37, 3940,44-45,48,50-53. At approximately 5:00 p.m., the Erie Fire Department arrived at the scene. The fire was located primarily in the victim's bedroom, and "hot spots" were found there as well. After the fire was extinguished, the firefighters conducted a primary search and found nothing. After the smoke dissipated, they conducted a secondary search and again found nothing. After the secondary search, they discovered the victim's body in the hallway leading from the bathroom. The victim was face down with her knees in the bathroom (which was in close proximity to the bedroom). The main portion of her body was in the hallway pointing toward the dining room area. The firefighters moved the victim about 18 inches and determined that she was dead. When they found her, she 3 Circulated 08/07/2014 02:35 PM was covered in debris, including lath, plaster and portions of the ceiling that had burned out and fell onto her body. N. T. Trial (Day 1) 11/09/10, at 78, 80-83, 87, 90, 96. 4 While at the scene, Erie Fire Department firefighter Mark Polanski observed a 10 inch long kitchen knife lying near the curb in the street at the end of the victim's driveway. The knife was in water that was running down the driveway. After his observation, Polanski placed the knife in the back of a parked pickup truck and later pointed it out to responding police officers. N.T. Trial (Day 1) 11/09/10, at 99-101,104105. Erie Fire Department Chief Fire Inspector Guy Santone arrived on the scene at 5:29 p.m. Santone observed the victim's lower body in the hallway and her upper body in the dining room. He observed that the bedroom was completely destroyed. Based upon the burn and smoke patterns, along with interviews, he concluded that the origin of the fire was the southwest bedroom. Ultimately, Chief Santone subsequently concluded the cause of fire was the result of the lighting of ignitable liquid by a flame producing item. N.T. Trial (Day 1) 11/09/10, at 126,128-129,144-145,151. Detective Adam Digilarmo, of the Erie Police Department Crime Scene Unit, arrived while firefighters were still in the residence. Digilarmo entered as far as the dining room and noticed blood on a box and CD case. He observed blood on an archway and bloody fingerprints. While at the scene, he was given a large boning knife that was found by firefighter Polanski. Other knives were found at the scene, including 4 Erie Fire Department firefighter Joseph J. Walko testified that when advancing the water line, his path was right over the victim's body. However, she was not noticed because the firefighters did not point the hose on the ground but rather at the bedroom. NT Trial (Day 1) 11109/10, at 93. 4 Circulated 08/07/2014 02:35 PM a butcher knife which was found on the floor going back into the hallway. N.T. Trial (Day 1) 11/09/10,163,165-170. Erie Police Department Detective Sergeant Barry Snyder arrived at the scene approximately one hour after the fire was extinguished. He observed the deceased victim, along with blood spatters in the residence. N.T. Trial (Day 1) 11/09/10, at 187, 194. On the night of the incident, at approximately 8:00 p.m., Petitioner arrived at the Erie Police Department. Detective Snyder observed blood on Petitioner's vest and noticed that his hands had scrapes/cuts on the fingers and knuckles. Snyder observed that the wounds were minor and not bleeding. Moreover, Petitioner had a superficial cut on his right hand. He also observed right hand (scrapes finger/knuckles), a few scrapes to the palm of Petitioner's hand, scrape to left leg, and dried blood on Petitioner's hand. Snyder took photographs of Petitioner and a swab of the dried blood on his hand. N.T. Trial (Day 1) 11/09/10, at 188-193. While at the police station, police seized his clothing, including Petitioner's flannel pants. Police obtained a swab from Petitioner's hands and fingernail and finger swabbings from Petitioner. (Also utilized was a fingernail clipping from the victim's body at the time of the autopsy. N.T. Trial (Day 1) 11/09/10, at 176-179. On March 4, 2010, Detective Digilarmo returned to the scene and observed additional blood in the back hallway in the office room. He also observed a bloody hand print on a roll of paper towels in the kitchen, blood in the victim's bedroom, and blood and hairs on the side of a fax machine recovered from a bedroom. In the basement, he observed a white pillar with blood running down it (located beneath where the victim 5 Circulated 08/07/2014 02:35 PM was found). While at the scene, he took blood samples. N.T. Trial (Day 1) 11/09/10, at 171,173,175,182. The physical evidence was subsequently tested. It was stipulated at trial that the victim's DNA was found on the bottom of the fax machine, a swab from the blade of the recovered butcher knife, and on the lower left side of Petitioner's flannel pants. N.T. Trial (Day 1) 11/09/10, at 183-184. On March 4, 2010, Dr. Eric Vey, a forensic pathologist with the Erie County Coroner's Office, performed an autopsy. was due to exsanguination. He concluded that the victim's cause of death Dr. Vey found that the victim bled to death both internally and externally, secondary to blunt force and sharp injury wounds with aspiration of blood into her lungs as a contributory factor. Dr. Vey concluded that the victim survived 10 or 15 minutes after her facial artery and facial vein in her neck were damaged from a stab wound. Moreover, Dr. Vey found that the victim had less than 2% carbon monoxide present in her lungs, indicating that the victim was not breathing at the time of the fire. N.T. Trial (Day 1),11/09/10, at 197, 203, 247-249. During the autopsy, Dr. Vey cataloged 72 different injuries. He found that the victim sustained numerous stab wounds, sharp force injuries, blunt force injuries, and defensive wounds. As Dr. Vey testified, he found: (1) Four stab wounds to the left lower back, right lower back, right upper back, and the right side of the neck. The stab wound to the victim's neck cut her facial vein and facial artery, and the cut went from the right to the left side of her neck. Dr. Vey found the wounds consistent with the knives presented at trial; (2) Several sharp force injuries to the head. Dr. Vey found 26 categories of blunt force injuries (abrasions, contusions, and lacerations) to the victim's head. Included was a skull fracture and contusion to the victim's brain beneath a fracture, as well as hemorrhaging around the 6 Circulated 08/07/2014 02:35 PM membranes that protect the brain. Dr. Vey concluded that, with a depressed skull fracture alone that's sufficient in magnitude to cause not only a skull fracture but depression of the skull fracture fragments below the plane of the skull and into the brain itself is sufficient to cause immediate incapacitation and loss of consciousness." Id. at 229. Dr. Vey found that the impact to the skull was consistent with an impact by an object with a corner, such as a fax machine; (3) Several blunt force traumas to the extremities and trunk; and, (4) Defense wounds. Dr. Vey cataloged approximately 10 defensive wounds found predominantly on the victim's hands and also the left arm. N.T. Trial (Day 1), 11/09/10, at 197, 203, 205- 206, 209-216, 218-239, 241-242, 245246, 248, 272. Additionally, Dr. Vey found that both of the victim's lungs collapsed and contained a speckled red pattern, indicating that she aspirated blood. Dr. Vey concluded that the stab wound to the victim's neck caused the blood aspiration. N.T. Trial (Day 1),11/09/10, at 245-246. At trial, Petitioner testified that he killed the victim in self defense. N.T. Trial (Day 2), 11/10/10, at 53, 59, 60-67, 69-75. On November 10, 2010, Petitioner was convicted of first-degree murder, aggravated assault, arson, and recklessly endangering another person. On January 5, 2011, Petitioner was sentenced to a term of life imprisonment at Count 1 (first-degree murder); 22 to 44 months' incarceration at Count 4 (arson), concurrent with Count 1; and 1 to 24 months' incarceration at Count 6 (REAP), consecutive to Count 1. Count 2 (aggravated assault) merged for sentencing purposes. On that same day, this Court ordered that Petitioner's post-sentence motion was due January 30, 2011. On January 28, 2011, Petitioner filed a Post-Sentence Motion, which this Court denied on January 31,2011. 7 Circulated 08/07/2014 02:35 PM On February 24, 2011, Petitioner filed a Notice of Appeal. On April 12, 2011, the appeal was quashed. On April 19, 2011, Petitioner's appellate rights were reinstated. On April 20, 2011, Petitioner filed a Notice of Appeal. On May 10, 2011, appellate counsel filed a Statement of Intent to File an Anders/McClendon Brief. On May 17, 2011, this Court wrote the Superior Court, noting that in light of appellate counsel's representation that she would file an Ander/McClendon Brief, the Court would not be submitting a memorandum opinion pursuant to Pa.R.A.P. 1925(a). On November 18, 2011, the Honorable Superior Court remanded the case to this Court for issuance of a 1925(a) opinion. On November 29, 2011, this Court wrote the Superior Court and requested clarification. In response, on December 5, 2011, the Honorable Superior Court directed this Court to address the following issue on appeal: Whether there was insufficient evidence to find [Tyler Keys] guilty of Murder [of the First Degree] and Aggravated Assault despite his claim of self-defense. Superior Court Order, 12/05/11, quoting Appellant's Anders Brief at 5. On March 15, 2012, the Superior Court affirmed Petitioner's judgment of sentence and granted counsel's motion to withdraw as counsel. Commonwealth v. Keys, 674 WDA 2011 (Pa. Super., March 15,2012). On March 8, 2013, Petitioner filed a pro se Petition For Post-Conviction Collateral Relief.5 On March 11, 2013, this Court appointed PCRA counsel. On June 24, 2013, Petitioner filed a counseled Supplement to Motion For Post Conviction Collateral Relief. Pursuant to the prisoner mailbox rule, Petitioner's pro se PCRA petition is deemed filed on March 8, 2013, the date he placed it in the hands of prison authorities for mailing (i.e., postmark date). See, Commonwealth v. Fransen, 986 A.2d 154, 156 n.5 (Pa. Super. 2009); Commonwealth v. Castro. 766 A.2d 1283 (Pa. Super. 2001); Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998). 5 8 Circulated 08/07/2014 02:35 PM As part of the supplement, PCRA counsel attached Petitioner's pro se PCRA petition, Pro-Se Amended PCRA Petition and Pro-Se Memorandum Of law In Support Of PCRA Petition. The counseled supplement does not raise or discuss any issues, but rather incorporates Petitioner's pro se filings. II. LEGAL DISCUSSION The purpose of the PCRA is to provide a means of obtaining collateral relief for persons who have been convicted of crimes they did not commit, or who are serving illegal sentences. 42 Pa.C.SA §9542; see also, Commonwealth v. Carbone, 707 A.2d 1145, 1148 (Pa.Super. 1998). A petitioner must demonstrate not only that an error has occurred, but also that the error prejudiced him or her. See, Commonwealth v. Knox, 450 A.2d 725, 728 (Pa.Super. 1982). One will not be entitled to PCRA relief if the issues have been previously litigated or waived. See 42 Pa.C.SA §9544. An issue is previously litigated "if the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue[.]" 42 Pa.C.S.A. §9544(a)(2). An issue is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.SA §9544(b). Ineffective assistance of counsel claims are appropriately addressed under the Post-Conviction Relief Act, 42 Pa.C.SA §9541-9546. See, Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002); Commonwealth v. Rossetti, 863 A.2d 1185 (Pa.Super. 2004). The test for counsel ineffectiveness under the United States and Pennsylvania constitutions is the same: it is the performance and prejudice paradigm set forth by the 9 Circulated 08/07/2014 02:35 PM U.S. Supreme Court in its seminal decision in Strickland v. Washington, 466 U.S. 668, 104 S. Cl. 2052 (1984). See, Commonwealth v. Bomar, 826 A.2d 831, 855 (Pa. 2003); Commonwealth v. Bond, 819 A.2d 33, 41-42 (Pa. 2002); Commonwealth v. Busanet, 817 A.2d 1060, 1066 (Pa. 2002). Counsel is presumed effective and to have acted in the best interests of his client, with the burden to prove otherwise upon the petitioner. Commonwealth v. Singley, 868 A.2d 403, 411 (Pa. 2005), citing Commonwealth v. Jones, 683 A.2d 1181, 1188 (Pa. 1996); see also Commonwealth v. Miller, 664 A.2d 1310, 1323 (Pa. 1995). The burden is on the petitioner to show, "by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.SA § 9543(a)(3); see also Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999); Commonwealth v. Jones, 815 A.2d 598, 611 (Pa. 2002). Therefore, to meet his burden, a petitioner must show that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his/her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland, supra, at 694-95; Kimball, supra. "Reasonable probability" is defined as "a probability sufficient to undermine the confidence in the outcome." Kimball, supra, at 331, citing Strickland, supra, at 694). A failure to satisfy any prong of the test for ineffectiveness requires rejection of the claim. Commonwealth v. Bryant, 855 A.2d 726, 735-36 (Pa. 2004); Jones, supra, at 611 (Pa. 2002). Finally, "[a] PCRA court passes on witness 10 Circulated 08/07/2014 02:35 PM credibility at PCRA Ilearings, and its credibility determinations should be provided great deference by reviewing courts." Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (citations omitted). A. Whether appellate counsel was ineffective by failing to argue that the trial court abused its discretion in allowing photographs of the victim to be shown to the jury? Petitioner claims the photographs of the victim admitted a trial were prejudicialinflammatory, cumulative and not of essential evidentiary value that their need outweighed the likelihood of inflaming the jury. Pro se Petition, at 8(a). He further claims that because the victim's cause of death was not challenged, they were not relevant. In .the supporting memorandum, Petitioner claims trial counsel was also ineffective in failing to challenge the admission of photographs of blood on a pillar in the basement, blood on a butcher knife, blood on a box, CD case, archway, back hallway office room and blood on a roll of toilet paper. (Memorandum, at 10). The admission of photographs is a matter vested within the sound discretion of the trial court whose ruling thereon will not be overturned absent an abuse of that discretion. This Court has long recognized that photographic images of the injuries inflicted in a homicide case, although naturally unpleasant, are nevertheless oftentimes particularly pertinent to the inquiry into the intent element of the crime of murder. (the mere fact that blood is visible in a photograph does not necessarily render the photograph inflammatory). In determining whether the photographs are admissible, we employ a two-step analysis. First, we consider whether the photograph is inflammatory. If it is, we then consider whether the evidentiary value of the photograph outweighs the likelihood that the photograph will inflame the minds and passions of the jury. Even gruesome or potentially inflammatory photographs are admissible when the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. II Circulated 08/07/2014 02:35 PM Commonwealth v. Solano, 906 A.2d 11 SO, 1191-92 (Pa. 2006)(intemal citations omitted). "Neither graphic testimony nor the pictures' gruesome nature precludes admissibility of photographs of a homicide scene." Commonwealth v. Wright, 961 A.2d 119, 13S (Pa. 200S)(citations omitted). Moreover, "the condition of the victim's body provides evidence of the assailant's intent, and, even where the body's condition can be described through testimony from a medical examiner, such testimony does not obviate the admissibility of photographs." Commonwealth v. Rush, 646 A.2d 557, 560 (Pa. 1994)(citations omitted)( emphasis added). Here, this Court found the photographs of the victim were not inflammatory and reflected the extensive nature of her injuries. N.T. Motion In Limine, 11/0S/10, at 3. Because this was a first-degree murder case, the nature of the injuries provided proof of both intent and malice. Id. Furthermore, the photographs taken at the scene accurately depicted the crime scene and the location of the victim's body. Because this Court did not abuse its discretion in determining the photographs were admissible, appellate counsel was not ineffective for failing to raise an issue as to their admissibility. Accordingly, this claim is meritless. B. Whether both trial and appellate counsel were ineffective by not challenging this Court's omission of a corpus delicti jury instruction? Petitioner claims this Court failed to instruct the jury that it must first be convinced beyond a reasonable doubt of the existence of the corpus delicti before it could consider Petitioner's extra-judicial admission/confession. Pro se Petition at S(b). He asserts 12 Circulated 08/07/2014 02:35 PM Petitioner's admissions were admitted during the Commonwealth's opening and closing remarks, and during the examination of Commonwealth witness Shi-Dee Beason. 6 When reviewing a challenge to jury instructions, the reviewing court must consider the charge as a whole to determine if the charge was inadequate, erroneous, or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. A new trial is required on account of an erroneous jury instruction only if the instruction under review contained fundamental error, misled, or confused the jury. Commonwealth v. Fletcher, Pa. _ _ , 986 A.2d 759, 792 (2009) (internal citations and quotation marks omitted). "The relevant inquiry for [an appellate court] when reviewing a trial court's failure to give a jury instruction is whether such charge was warranted by the evidence in the case." Commonwealth v. Baker, 963 A.2d 495, 506 (Pa. Super. 2008). "The purpose of the corpus delicti rule is to guard against 'the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed'" Commonwealth v. Edwards, 903 A.2d 1139, 1158 (Pa. 2006)(citations and quotation omitted). "The corpus delicti rule provides that the Commonwealth bears a burden of showing that the charged crime actually occurred before a confession or admission by the accused can be admitted as evidence. 'The corpus del[i]cti is literally the body of the crime; it consists of proof that a loss or injury has occurred as a result of the criminal conduct of someone"'. Commonwealth v. Otterson, 947 A.2d 1239, 1249 (Pa. Super. 2008)(citations omitted). Importantly, "the order in which evidence is presented is a 6 Specifically, Beason testified that Petitioner told him that he "got into it with a woman", beat her up, defended himself, and burned down a house. N.T. Trial (Day 1), 11/09/10, at 35-37, 39-40, 44-45, 48, 50-53. 13 Circulated 08/07/2014 02:35 PM matter committed to the trial court's discretion, and its rulings will not be disturbed absent an abuse of that discretion." Commonwealth v. Edwards, 903 A.2d 1139, 115859 Pa. 2006)(citations omitted). "In a homicide prosecution, '[t]he corpus delicti consists of proof that a human being is dead and that such death took place under circumstances which indicate criminal means or the commission of a felonious act[.]'" Commonwealth v. Bullock, 868 A.2d 516, 527 (Pa. Super. 2005)(citations and quotation omitted). The criminal responsibility of the defendant is not a requirement of the corpus delicti rule. Id., citing Commonwealth v. Ahlborn, 657 A.2d 518, 521 (Pa. Super. 1995). Here, the Commonwealth's evidence, irrespective of Petitioner's out-of-court admissions, established that the victim died as a result of a homicide. Dr. Eric Vey, a forensic pathologist, testified that the victim suffered numerous stab wounds, sharp blunt force injuries, and defensive wounds. N.T. Trial (Day 1), 11/09/10, at 197, 203, 205-06, 209-16, 218, 239, 241-42, 245-26, 248, 272. He concluded the victim bled to death, secondary to blunt force and sharp injury wounds with aspiration of blood into her lungs. In regard to the arson, the Commonwealth established through Chief Santone that the fire was caused by the lighting of ignitable liquid by a flame producing item. N.T. Trial (Day 1),11/09/10, at 144-45. He theorized the fire was ignited by a human with an open flame Id., at 280. Based upon the above, this Court finds Petitioner's claim meritless. The Commonwealth established the corpus delicti of each crime through direct and circumstantial evidence independent of Petitioner's out-of-court admissions. Therefore, 14 Circulated 08/07/2014 02:35 PM an instruction was not required and counsel were not ineffective by failing to request one at trial or advancing this claim on direct appeal. C. Whether trial counsel was ineffective for failing to request an imperfect self-defense instruction and whether appellate counsel was ineffective for not raising trial counsel's ineffectiveness in that regard? On direct appeal, the Superior Court found the evidence presented at trial was sufficient for the jury to find that the 72 wounds evidence an unreasonable response by Petitioner to any provocation by the victim. Commonwealth v. Keys, 674 WDA 2011, at *7 (Pa. Super., March 15, 2012). Importantly, it concluded that the Commonwealth proffered sufficient evidence for a jury to find Petitioner's defense or self-sense disproven/overcome. Id., at *8. Accordingly, Petitioner cannot succeed on this claim of ineffectiveness as the trial evidence did not support an imperfect self-defense instruction. See Commonwealth v. Washington, 692 A.2d 1024, 1028-29 (Pa. 1997)(finding that jury instructions regarding particular defense not warranted where evidence does not support such instruction). D. Whether direct appellate counsel was ineffective for filing an Anders brief? Petitioner claims that appellate counsel's Anders7 brief was defective and failed to raise meritorious issues (admission of the victim's photographs, corpus delicti issue, error in allowing Dr. Vey to suggest the victim was an assault victim, and prosecutorial misconduct). Court-appointed counsel who seeks to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous must: ) Anders v. California, 386 U.S. 783 (1967). 15 Circulated 08/07/2014 02:35 PM Circulated 08/07/2014 02:35 PM Circulated 08/07/2014 02:35 PM Circulated 08/07/2014 02:35 PM Circulated 08/07/2014 02:35 PM Circulated 08/07/2014 02:35 PM

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