Com. v. Parks, P. (memorandum)

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J-S73031-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PAUL PARKS Appellant No. 705 EDA 2013 Appeal from the PCRA Order February 25, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0703321-2004 BEFORE: FORD ELLIOTT, P.J.E., BOWES, J., and OTT, J. MEMORANDUM BY OTT, J.: FILED APRIL 22, 2014 Paul Parks appeals, pro se, from the order entered February 25, 2013, in the Philadelphia County Court of Common Pleas, denying him relief on his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. On December 19, 2005, Parks was sentenced to an aggregate term of life imprisonment, following his jury conviction of first degree murder and criminal conspiracy.1 On appeal, Parks raises six claims asserting the ineffective assistance of trial counsel. For the reasons set forth below, we affirm. summarized by the trial court as follows: ____________________________________________ 1 18 Pa.C.S. §§ 2502(a) and 903. J-S73031-13 On the evening of March 15, 2003, Kenneth Stokes (Stokes) planned to go to the movies with his daughter and his girlfriend. Before his girlfriend arrived at his home, Stokes went to the New Deli Market located at the corner of 16th and Ruscomb Streets. Prior to arriving at the market, Stokes ran into Michelle Gatlin (Gatlin), who asked Stokes if she could purchase crack cocaine from him. [Gatlin admitted at trial that she used cocaine regularly around the time of the murder, and that she had last used crack cocaine approximately three hours before the shooting.] Stokes told Gatlin that he did not have any drugs to sell. On the way back to her house, Gatlin noticed a dark blue, four-door car parked across the street from her house. After seeing the car flash its headlights, Gatlin approached the car and recognized [Parks] as the driver and g, put it under his coat, get out of the car and walk towards the New Deli Market. [Parks] then directed Gatlin to go into her house. When she arrived at the steps to her house, located across d [Parks] get out of the car and walk towards Stokes. Gatlin observed [Parks] step off the sidewalk and fire a shot from a gun. At that point, she turned toward her house and began to run away. On the way to the house, Gatlin heard five or six more shots; she heard one final loud bang as she opened her door. Around the same time, Damon Toney (Toney) was using a pay phone outside the New Deli Market; he noticed Stokes exit the New Deli Market and cross the street to converse with [Parks]. Shortly thereafter, Toney heard gunshots and observed [Parks] shooting. Subsequently, Toney went over to Stokes and About fifteen minutes after Gatlin had entered her house, Malik Mustafa (Mustafa) knocked on her front door; once she opened the door, Mustafa told her that there was a cellphone call for her. Initially, Gatlin refused to take the phone. When -2- J-S73031-13 Roughly two months after the shooting, Mustafa attended a party with [Parks], Hurst and Julani Christmas (Christmas). [Parks] about hav PCRA Court Opinion, 8/22/2013, 3-4 (footnotes and record citations omitted). Parks was subsequently arrested and charged with first degree murder, criminal conspiracy and possessing an instrument of crime (PIC).2 On December 19, 2005, a jury found Parks guilty of first degree murder and criminal conspiracy, and not guilty of PIC.3 Parks was sentenced on March 2, 2006, to a term of life imprisonment for first-degree murder, and a Parks filed post-sentence motions, which were denied by operation of law on September 10, 2007, and the Pennsylvania Supreme Court subsequently Commonwealth v. Parks, 938 A.2d 1119 (unpublished memorandum) (Pa. Super. 2007), appeal denied, 951 A.2d 1162 (Pa. 2008). ____________________________________________ 2 18 Pa.C.S. § 907. 3 Parks was originally tried in June of 2005. However, that proceeding ended in a mistrial when the jury declared that it could not agree on the verdict. -3- J-S73031-13 Parks filed a timely pro se PCRA petition on June 19, 2009. Although counsel was promptly appointed, on December 9, 2009, Parks filed a petition requesting to proceed pro se. Following a Grazier4 hearing conducted on February 8, 2010, the PCRA court determined that Parks had knowingly and voluntarily waived his right to counsel, and granted his petition to proceed without counsel. Thereafter, Parks and the Commonwealth both filed a series of amended petitions, motions to dismiss, and responses thereto. Ultimately, on October 12, 2012, the PCRA court conducted an evidentiary failing to present character testimony regarding his reputation for being nonviolent.5 At the conclusion of the hearing, the PCRA court determined that court notified Parks, pursuant to Pa.R.Crim.P. 907, of its intention to dismiss his PCRA petition. Parks filed two respo however, on February 25, 2013, the PCRA court entered an order denying 6 ____________________________________________ 4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 5 Counsel was appointed for the limited purpose of conducting the examination during the evidentiary hearing. Thereafter, counsel was relieved of representation. 6 On March 8, 2014, Parks filed a concise statement of errors complained of directive, which had been docketed and mailed the previous day. -4- J-S73031-13 When reviewing an order dismissing a PCRA petition, we must determine whether the ruling of the PCRA court is supported by record evidence and is free of legal error. Commonwealth v. Robinson, ___ A.3d ___, 2013 WL 6822831, *4 (Pa. December 27, 2013) (citation omitted). findings will not be disturbed unless they have no support in the certified Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted). In the present case, Parks raises six challenges to the effective assistance of trial counsel. Specifically, Parks argues counsel was ineffective for: (1) failing to object when the trial court permitted the jury to review the statement of witness, Malik Mustafa, which contained a confession by Parks, during its deliberations; (2) failing to object to third party statements Clause and the hearsay rules; (3) failing to request a mistrial when the Commonwealth disclosed, near the end of trial, that a potential defense witness had made an inculpatory statement; (4) failing to present an expert perceive an event; (5) failing to challenge the weight of the evidence on direct appeal; and (6) failing to present character testimony regarding -violence. See -5. -settled: -5- J-S73031-13 In Pennsylvania, counsel is presumed effective, and a defendant bears the burden of proving otherwise. In order to be entitled to relief on a claim of ineffective assistance of counsel, the PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA ions or omissions were reasonable, we do not question whether there were other more logical courses of actions which counsel could have pursued: rather, we must examine whether counsel's decisions had any reasonable basis. Further, to establish prejudice, a petitioner must demonstrate that but for the act or omission in question, the outcome of the proceedings would have been different. Where it is clear that a petitioner has failed to meet any of the three, distinct prongs of the [ineffectiveness] test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met. Commonwealth v. Steele, 961 A.2d 786, 796-797 (Pa. 2008) (internal citations and punctuation omitted). The PCRA court provided a thorough and well-reasoned discussion of See PCRA Court Opinion, 8/22/2013, at 5-22 (finding no ineffective assistance of trial counsel ment, was not a confession pursuant to Pa.R.Crim.P. 646(c)(2); (2) the statements of two nonwere non-testimonial for purposes of the Confrontation Clause,7 and ____________________________________________ 7 See Crawford v. Washington, 541 U.S. 36 (2004). -6- J-S73031-13 qualified as tacit admissions of Parks pursuant to Pa.R.E. 803(25)(B);8 (3) ____________________________________________ 8 A tacit admission of a defendant has been deemed admissible at trial, so long as it was not made in police custody, or during police questioning. The rule of evidence is well established that, when a statement made in the presence and hearing of a person is incriminating in character and naturally calls for a denial but is not challenged or contradicted by the accused although he has opportunity and liberty to speak, the statement and the fact of his failure to deny it are admissible in evidence as an implied admission of the truth of the charges thus made. The justification of this rule is to be sought in the age-long experience of mankind that ordinarily an innocent person will spontaneously repel false accusations against him, and that a failure to do so is therefore some indication of guilt. Commonwealth v. Hubble, 460 A.2d 784, 788 (Pa. Super. 1983) (internal citation and quotation marks omitted; emphasis supplied). See also Commonwealth v. Coccioletti, 425 A.2d 387, 392 (Pa. 1981); Commonwealth v. Faraci, 466 A.2d 228, 232 (Pa. Super. 1983). Here, in Hurst, and Juliani Christmas, a few months after the shooting. N.T., 12/14/2005, at 151. His recollection of their conversation included the following third party declarations: And then [Christmas] said it was stupid for [Parks] to shoot [Stokes] over some stupid stuff. I was just sitting to do. It know. N.T., 12/14/2005, at 151 (emphasis supplied). The statements of Christmas and Hurst were of an incriminating nature and would have naturally called for a denial by Parks. His failure to do so renders their statements admissible as a tacit admission. See Hubble, supra. Moreover, even if we were to find that those statements should have been precluded or readacted (Footnote Continued Next Page) -7- J-S73031-13 Parks, until near the end of trial, that potential defense witness, Sonia Parks shot Stokes as the Commonwealth did not call Washington to testify or offer her 9 skeptical ability to perceive events while high on crack cocaine would not to the weight of the evidence based solely charge of PIC was meritless because inconsistent verdicts are permissible; and (6) trial counsel had a reasonable basis for failing to present character on for (Footnote Continued) _______________________ he was prejudiced because he, himself, admitted to Mustafa that he shot Stokes. See Steele, supra. 9 Further, we note that Parks has not demonstrated he was prejudiced as a Washington arrived on the scene after the shooting, described an individual leaving the scene who did not resemble Parks, and described a creamcolored car leaving the scene. See N.T., 12/14/2005, at 325-326, 340. Later, she failed to identify Parks in a photo array was so traumatized by the shooting. N.T., 12/14/2005, at 323. The defense investigator had attempted to serve Washington with a subpoena, but her mother refused to accept it. In fact, defense counsel stated that Id. at 324. -8- J-S73031-13 nonhave been admitted). Our independent review of the record reveals ample support for the Honorable M raised on appeal, and affirm the order denying PCRA relief. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/22/2014 -9-

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