Com. v. Gray, T. (memorandum)
Annotate this Case
Download PDF
J-S36007-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. THOMAS GRAY Appellant No. 1776 EDA 2013 Appeal from the PCRA Order May 24, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0504761-2004 BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: Appellant, Thomas Gray, FILED JULY 09, 2014 appeals from the order entered in Philadelphia County Court of Common Pleas, dismissing his first petition 1 We affirm. The PCRA court opinion sets forth the relevant facts and procedural history of this case as follows: At approximately 2:30 a.m. on April 17, 2004, Jerrold Foushee (Foushee) was shot in the chest. [Appellant] and Kimberly Robinson (Robinson) had had a romantic relationship in the past. In the days leading up to April 17, her. On April 16, 2006, after receiving a ride to and from work from Robinson, [Appellant] went out for the evening. Around 8:00 p.m., Robinson called [Appellant] and asked ____________________________________________ 1 42 Pa.C.S.A. ยงยง 9541-9546. _____________________________ *Former Justice specially assigned to the Superior Court. J-S36007-14 whether he would watch the child that they had together; [Appellant] declined. Believing that [Appellant] would be gone for the night, at around 10:00 p.m., Robinson called Foushee and invited him to her home to watch a movie. the pair ate and then watched television together in bedroom window, Robinson heard [Appellant] speaking with another person outside of her house. Shortly thereafter, [Appellant] called Robinson on her phone; she did not pick up. Eventually, the door to the apartment building opened and [Appellant] then knocked on key that Robinson had not given to him, [Appellant] opened the door to the apartment. At the same moment that [Appellant] entered the apartment, Robinson was lifting herself from her bed and pulling pants on over her pajamas. [Appellant] walked straight t bedroom, where he found Foushee seated, fully clothed, at Foushee. [Appellant] pulled out a gun and pointed it at Foushee and plead Foushee threaten or taunt [Appellant]. Foushee stood up from the bed and, as he walked towards the door, the two men began to fight. Initially, [Appellant] and Foushee grappled with one another in the doorway to the bedroom; as [they] were entangled, they moved into the hallway. During the fight, [Appellant] continued to hold his gun in heard a single gunshot and immediately thereafter saw [Appellant] sprint out of the apartment. Robinson called for help; the paramedics came and took Foushee to Einstein Hospital, where he was pronounced dead at 3:50 a.m. After shooting Foushee and fleeing the apartment, [Appellant] took a freelance taxi to Bridge and Pratt Streets. En route, [Appellant] threw his gun out the window. When [Appellant] arrived at his destination, he called his cousin, a firefighter, who picked him up, urged -2- J-S36007-14 him to turn himself in, and drove [Appellant] to his home where detectives were waiting for them. * * * On September 7, 2005, following a bench trial before this [c]ourt, [Appellant] was convicted of murder of the third degree (F-1), carrying a firearm without a license (F-3), and possessing instruments of crime (PIC) (M-1). Sentencing was deferred until October 17, 2005, on which date [Appellant] was sentenced to a term of not less than third-degree murder conviction. On October 18, 2005, [Appellant] filed post-sentence motions, which were denied by operation of law on February 21, 2006. [Appellant] filed a timely notice of appeal and, on October 29, 2007, vacated his sentence and remanded the matter for resentencing. On January 30, 2008, [Appellant] filed a Petition for Allowance of Appeal, which our Supreme Court denied on August 22, 2008. On December 2, 2008, this [c]ourt conducted the resentencing hearing ordered by the Superior Court, at which time [Appellant] was sentenced to ore of reporting probation. On December 11, 2008, [Appellant] filed post-sentence motions, which this [c]ourt denied on December 30, 2008. [Appellant] filed a timely notice of appeal and, on June 25, 2010, the Superior Court filed for allocatur, which our Supreme Court denied on May On July 9, 2012, [Appellant] filed a timely, counseled petition pursuant to the [PCRA]. On December 20, 2012, the Commonwealth filed a Motion to Dismiss, to which [Appellant] responded on February 20, 2013. After considering the pleadings and conducting an independent review, on April 26, 2013, this [c]ourt sent [Appellant] notice pursuant to Pa.R.Crim.P. 907 (907 Notice) of its intent to deny and dismiss his petition. [Appellant] did not this [c]ou -3- J-S36007-14 consistent with its 907 Notice. [Appellant] filed this timely appeal. On June 18, 2013, (PCRA Court Opinion, filed on November 27, 2013, at 1-4) (internal citations and footnotes omitted). On June 21, 2013, the PCRA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied. Appellant raises the following issues for our review: WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO ACQUIRE AVAILABLE EXPERT TESTIMONY EXPLAINING THE LOCATION OF A FIRED CARTRIDGE CASING (FCC), USED THE LOCATION OF THE FCC TO DISCREDIT THE TESTIMONY OF THE TWO WITNESSES TO THE SHOOTING, WHOSE TESTIMONY SUPPORTED A LESSER DEGREE OF HOMICIDE? WAS APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO OF THE PRESUMPTION THAT MALICE MAY BE INFERRED BECAUSE THE VICTIM WAS SHOT IN A VITAL BODY PART, WHERE THE SHOOTING TOOK PLACE DURING A STRUGGLE AND THERE WAS NO EVIDENCE THAT THE WOUND LOCATION WAS THE PRODUCT OF CHOICE, THUS IRRATIONAL AND [ITS] APPLICATION A VIOLATION OF DUE PROCESS OF LAW? -3). Our standard of review of the denial of a PCRA petition is limited to determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the -4- J-S36007-14 findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012). The law presumes counsel has rendered effective assistance. Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his 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. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams, supra. issue/argument/tactic which counsel has foregone and which forms the basis -5- J-S36007-14 Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). be found ineffective for failing to pursue a baseless or Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004). ude that the particular course chosen by counsel had some assistance is deemed effective. Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted). Prejudice is established when [an appellant] demonstrates that chosen course of action had an adverse effect on the outcome of the proceedings. The [appellant] must show that there is a reasonable probability that, but for unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In [Kimball, supra], we held [appellant] alleging prejudice must show that errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) (some internal citations and quotation marks omitted). In his first issue, Appellant argues trial counsel was ineffective for regarding his version of the facts. Appellant alleges a forensic expert would have provided an explanation as to the discrepancy between where the fired shooting occurred. Appellant contends his inability to reconcile this -6- J-S36007-14 Ms. Rob of events. Appellant claims that, had a forensic expert testified as to the would have interpreted M maintains trial have convicted him of manslaughter rather than third degree murder if a of the facts claim regarding trial counsel. We disagree. ll a witness, a defendant must prove, in addition to meeting the three [ineffectiveness] requirements, that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or should have known of the existence of the witness; (4) the witness was willing to testify Commonwealth v. Walls, -7- J-S36007-14 993 A.2d 289, 302 (Pa.Super. 2010) (quoting Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008)). Instantly, Appellant failed to demonstrate that a forensic expert existed and was available to testify for Appellant at trial in the manner Appellant suggests. See id. Additionally, nothing in the record reveals trial trial. See id. Likewise, Appellant failed to demonstrate that the absence of trial. See id. arguable merit. See Kimball, supra; Pierce, supra. trial counsel claim fails to demonstrate prejudice: the result of the proceeding would have been different if trial counsel had proffered expert testimony about the location of the altercation between [Appellant] and Foushee. It is immaterial whether this altercation took place inside the bedroom, where the shell casing was ultimately found, or in the hallway outside of the bedroom as [Appellant] testified, as the location of the altercation was shot. The Commonwealth presented substantial evidence that this killing was not accidental and that [Appellant] possessed malice when he shot Foushee. The Commonwealth demonstrated that [Appellant] entered , using a key permission. [Appellant] then approached Foushee and aggressively threatened him. [Appellant] pulled out a gun [Appellant] and Foushee and pleaded that [Appellant] desist. Even though [Appellant] brandished his gun, -8- J-S36007-14 Foushee stayed seated on the bed and told [Appellant] he did not want trouble. During the altercation that ensued, [Appellant] pressed the muzzle of the gun against Fou run from the apartment thereafter amount to persuasive evidence that [Appellant] intended to kill Foushee. See Commonwealth v. Hanford, 937 A.2d 1094, 1097 (Pa.Super. 2007) (noting that a factfinder may infer consciousness of guilt from an attempt to flee). Had trial counsel presented evidence that [Appellant] fired his gun while in the hallway outside of the bedroom, it would not have altered the fact that [Appellant] knew he had gravely and disposed of the murder weapon. In light of the significant evidence that [Appellant] intended to shoot and kill Foushee, (PCRA Court Opinion at 7decision; therefore, we have no reason to disturb it. Accord In his second issue, Appellant argues appellate counsel was ineffective because he failed to challenge, on direct appeal, the presumption of malice inherent in applying deadly force to a vital body part. Appellant claims the ational inference from failure to challenge the presumption of malice on direct appeal constituted -9- J-S36007-14 ineffective assistance of counsel. Appellant concludes this Court should vacat regarding appellate counsel. We disagree. conviction petitioner must, at a minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness , 579 Pa. 490, 500, 856 A.2d y by focusing his attention on argument as to how the second and third prongs of the Pierce test are met Commonwealth v. Santiago, 579 Pa. 46, 69, 855 A. meaningfully discuss and apply the standard governing the review of establishing that he is entitled to any relief. Commonwealth v. Bracey, 568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001). his PCRA petition the ineffectiveness. Now on appeal, Appellant raises the same general - 10 - J-S36007-14 claim of appellate three-prong standard. See Santiago, supra; . Thus, Moreover, even if properly preserved, the underlying claim regarding Presuming malice from the facts elicited at trial would not one that reason and common sense justify in light of Francis v. Franklin, 471 U.S. 307, 314Constitution mirror that which is provided by the United States Constitution. Commonwealth v. Hall, 830 A.2d 537, 548-49 (Pa. 2003). The test articulated by the United States Supreme Court and endorsed by our Supreme Court the facts of the case, there is no rational way the trier [of fact] could make the connection permitted by the Id. at 546, citing Ulster County v. Allen 442 U.S. 140, 157 (1979). chest when fired and that [Appellant] fled the scene immediately after [Appellant] possessed malice when he pulled the trigger. and the ultimate fact presumed, there was no due process concern to be raised. Appellate counsel cannot be deemed ineffective for not having raised a meritless claim. - 11 - J-S36007-14 Commonwealth v. Sepulveda, 55 A.3d 1108, 1118 (Pa. (PCRA Court Opinion at 8-9). Accordingly, we affirm the order dismissing Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 - 12 - Circulated 06/20/2014 02:55 PM Circulated 06/20/2014 02:55 PM Circulated 06/20/2014 02:55 PM Circulated 06/20/2014 02:55 PM Circulated 06/20/2014 02:55 PM Circulated 06/20/2014 02:55 PM Circulated 06/20/2014 02:55 PM Circulated 06/20/2014 02:55 PM Circulated 06/20/2014 02:55 PM
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
