Opinion
J-S57028-17 No. 2291 EDA 2016
11-21-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JALIL PRATT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order dated June 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011453-2007 BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J. MEMORANDUM BY SOLANO, J.:
Appellant Jalil Pratt appeals from the order denying, after an evidentiary hearing, his first Post Conviction Relief Act ("PCRA") petition. We affirm.
42 Pa.C.S. §§ 9541-9546. --------
We state the facts as set forth by a prior panel of this Court, which resolved Appellant's direct appeal:
On December 23, 2006 at approximately 11:00 p.m., co-Defendant Maurice Smith told his girlfriend, Melissa Thompson, via cell phone to call George's Pizza in Philadelphia, PA and place an order for delivery. Melissa Thompson told George's Pizza to deliver the food to a specific address in Philadelphia, PA and then called Smith back via Pratt's cell phone to tell him that she had done so. Pratt and Smith then waited for the delivery man to arrive.
At 11:44 p.m., William Heron ("Heron") heard a knock on his door where Melissa Thompson requested the delivery be made. Heron looked out the window to see a pizza delivery man, later
identified as Michael Orlando, standing outside the door. Heron answered the door to tell Michael Orlando, hereinafter referred to as Orlando, he must have the wrong address because he didn't order pizza. Heron then saw two black males approach from behind Orlando. Pratt pointed a gun at Orlando while Smith demanded that Orlando 'move it, move it.' Heron immediately shut the door and dialed 911 for emergency police services. While on the phone with the police, Heron heard banging and crying at the front door, but was too afraid to open the door. The police arrived at his door within minutes, discovered Orlando shot in the abdomen, and all suspects had fled the scene. Orlando was taken to Frankford Hospital, Torresdale division, where he was pronounced dead at 12:30 a.m. on December 24, 2006 due to a single gunshot wound to the abdomen.Commonwealth v. Pratt , No. 672 EDA 2010, at 1-2 (Pa. Super., Dec. 2, 2010), appeal denied , 19 A.3d 1050 (Pa. 2011).
Pratt, Smith, and Melissa Thompson ("Thompson") were subsequently arrested and charged with numerous crimes related to the events set forth above.
Prior to trial, Thompson pleaded guilty to conspiracy in exchange for testifying at Appellant's trial. At trial, Appellant "put forth an alibi defense, calling two witnesses who testified that [he] was in their house at the time the murder was supposed to have occurred." Pratt , No. 672 EDA 2010, at 3. In support, Thompson testified that she did not meet Appellant until the day after the robbery. N.T. Trial, 6/17/09, at 170-71. During closing arguments, Appellant's trial counsel argued that Thompson's testimony, in conjunction with other testimony, raised a reasonable doubt as to whether Appellant was involved. N.T. Trial, 6/24/09, at 117. The jury convicted Appellant of second-degree murder, conspiracy, and burglary, and the court sentenced him to life imprisonment without parole for murder and a concurrent sentence of ten to twenty years' imprisonment for the remaining convictions. This Court affirmed and our Supreme Court denied Appellant's petition for allowance of appeal.
Appellant, acting pro se, timely filed his first PCRA petition. The court appointed counsel, who filed an amended PCRA petition. Attached to the petition was trial counsel's signed affidavit averring that he forgot to investigate and present character witnesses. The PCRA court held an evidentiary hearing at which Appellant called witnesses who testified that had they been called at trial, they would have testified to Appellant's reputation in the community as being a non-violent person. The Commonwealth cross-examined them with Appellant's prior criminal record.
At the hearing, Appellant's trial counsel testified as follows:
At the time of his signature [on the affidavit, Appellant's trial counsel] believed the averments were accurate. (N.T. 06/15/2016 at 36). However, upon further recollection, [trial counsel] testified the statements were not accurate because he was aware of [Appellant's] prior record and more importantly, he recalled speaking with the prosecutor about potential cross examination and impeachment of the character witnesses. (N.T. 06/15/2016 at 36-39).PCRA Ct. Op., 11/4/16, at 6 (footnote omitted). Trial counsel also testified that he did not request a corrupt and polluted source instruction for Thompson because, in his view, her testimony exculpated Appellant and he did not want to undermine her testimony before the jury. N.T. PCRA Hr'g, 6/15/16, at 40-41. Following the hearing, the trial court denied Appellant's petition and Appellant timely appealed.
Appellant raises the following issues:
Whether trial counsel was ineffective for failing to investigate and to procure character witnesses to testify that the Appellant enjoyed a reputation for being a peaceful and non-violent person.Appellant's Brief at 6.
Whether trial counsel was ineffective for failing to request a corrupt source cautionary and jury instruction for Melissa Thompson who was an accomplice in the death of Michael Orlando.
"Preliminarily, we recognize that in reviewing the propriety of an order granting or denying PCRA relief, this Court is limited to ascertaining whether the evidence supports the determination of the PCRA court and whether the ruling is free of legal error." Commonwealth v. Andrews , 158 A.3d 1260, 1262-63 (Pa. Super. 2017).
We summarize Appellant's arguments for both of his issues. He contends trial counsel had no reasonable basis not to call character witnesses. In Appellant's view, his criminal past was non-violent and would have only supported his contention that he lacked the capacity to commit murder and robbery. Appellant's Brief at 14-15. Appellant also contends that trial counsel had no reasonable basis to not request a corrupt source instruction, given Thompson's admitted involvement. Id. at 17.
In order to obtain relief under the PCRA premised upon a claim that counsel was ineffective, a petitioner must establish beyond a preponderance of the evidence that counsel's ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). This requires the petitioner [to] demonstrate that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. It is presumed that counsel is effective, and . . . the appellant [has] the burden of proving otherwise.Commonwealth v. Payne , 794 A.2d 902, 905-06 (Pa. Super.) (citation omitted), appeal denied , 808 A.2d 571 (Pa. 2002). Counsel has a reasonable strategic basis for not calling character witnesses if counsel believes the witnesses could be cross-examined regarding the defendant's prior criminal record. Commonwealth v. Van Horn , 797 A.2d 983, 988 (Pa. Super. 2002). It is similarly a reasonable strategic basis to not request a corrupt source instruction if doing so would be inconsistent with the proffered defense. Commonwealth v. Johnson , 437 A.2d 1175, 1177 (Pa. 1981).
After careful review of the parties' briefs, the record, and the decision of the Honorable Leon W. Tucker, Jr., we affirm on the basis of the PCRA court's decision. See PCRA Ct. Op. at 5-8 (holding trial counsel adequately explained why his affidavit was inaccurate, and trial counsel had a reasonable strategic basis for not calling character witnesses and requesting a corrupt source instruction). Because we perceive no error, we affirm the PCRA court's order denying relief. The parties are instructed to attach the PCRA court's decision to any future pleadings that reference that decision.
Order affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/21/2017
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