Opinion
J-S44035-16 No. 1723 EDA 2015
06-28-2016
COMMONWEALTH OF PENNSYLVANIA v. DARIN WRIGHT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 11, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0009147-2008 BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Darin Wright ("Wright") appeals from the Order denying his first Petition filed pursuant to the Post Conviction Relief Act. We affirm.
The PCRA court set forth the relevant factual and procedural history in its Opinion, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 7/10/15, at 1-3.
In its Opinion, the PCRA court incorporated the trial court's recitation of facts, wherein the trial court mistakenly indicated that "Defendant" was pronounced dead at the scene. See PCRA Court Opinion, 7/10/15, at 2 (citing Trial Court Opinion, 4/19/12, at 2-3). We assume that the trial court intended to indicate that "the victim" was pronounced dead at the scene.
On appeal, Wright raises the following issues for our review:
1. Was trial counsel ineffective because he failed to object - on due process grounds - to the [trial] court's initial and final instructions on demeanor evidence?
2. Was direct [appeal] counsel ineffective because he waived [Wright's] claim that the prosecutor went outside the record in his summation?Brief for Appellant at 5 (capitalization omitted).
3. Was trial counsel ineffective because he called Dr. Donald Tibbs as an expert in the area of hip-hop [music] to try to interpret the lyrics in the video made by [Wright]?
In his first issue, Wright points to the trial court's jury instruction on assessing the credibility of witnesses, and contends that "[n]o standards were imparted to the jury on how to judge 'a convincing manner,' or how to judge a witness's 'look,' or speech, or how to assess credibility from demeanor." Id. at 8. Wright asserts that his "trial counsel had no strategic reason for not objecting - on due process grounds - to these credibility factors in the court's charge." Id. Wright claims that the jury instruction violated his federal constitutional rights because it instructed the jury to draw inferences of credibility from factors that do not support an inference of credibility. Id. at 12. Wright argues that the trial court's jury instruction "throws irrational factors into the decision making process." Id. at 14. According to Wright, how the witness looked or acted, or the manner of speech used by the witness, has no bearing on the witness's credibility. Id. Wright asserts that, because the effect of the trial court's error cannot be assessed, it constitutes a structural error from which prejudice must be presumed. Id. at 16.
The PCRA court set forth the relevant law, addressed Wright's first issue, and determined that it lacks merit. See PCRA Court Opinion, 7/10/15, at 9. We agree with the reasoning of the PCRA court and affirm on this basis as to Wright's first issue. See id.
In his second issue, Wright contends that, although his direct appeal counsel raised the claim that the trial court erred by denying Wright's Motion for a mistrial following the prosecutor's reference to evidence outside the record during his summation, the claim was deemed waived because direct appeal counsel provided no analysis, citation to the record, or citation to legal authority. Brief for Appellant at 17. Wright asserts that this claim "was meritorious to the point that it could have won a new trial," and that direct appeal counsel had no strategic reason for waiving the claim. Id. Wright claims that his trial counsel's approval of a curative instruction did not result in waiver of his Motion for mistrial based on the prosecutor's comments. Id. at 18. Wright argues that the Commonwealth cannot show that the prosecutor's comments "in no way contributed to the verdict." Id. at 22. Wright contends that direct appeal counsel was ineffective for failing to properly brief the issue. Id. at 24.
In his summation to the jury, the prosecutor argued that Wright's intent to kill the victim could be inferred from Wright's statement that the victim "caught me slipping, he caught me sleeping." PCRA Court Opinion, 7/10/15, at 7 (citing N.T., 9/12/11, at 81).
The PCRA court set forth the relevant law, addressed Wright's second issue, and determined that it lacks merit. See PCRA Court Opinion, 7/10/15, at 7-9; see also Commonwealth v. Wright , 68 A.3d 363 (Pa. Super. 2013) (unpublished memorandum at 9) (wherein a panel of this Court noted the "overwhelming evidence of [Wright's] guilt as established by eyewitness testimony at trial"). We agree with the reasoning of the PCRA court and affirm on this basis as to Wright's second issue. See PCRA Court Opinion, 7/10/15, at 7-9.
In his final issue, Wright contends that trial counsel's decision to call Dr. Donald Tibbs ("Dr. Tibbs") as an expert in hip-hop music, to provide opinion testimony regarding the meaning of the lyrics that Wright had used in his music video, constitutes a "misguided trial strategy [which] destroyed [Wright's] presumption of innocence and his character." Brief for Appellant at 28. Wright asserts that Dr. Tibbs did not specify as to what degree of certainty he held his opinions, and his opinions were not based on "scientific acceptability in [] published, peer[-]reviewed literature." Id. at 25. Wright claims that, at the conclusion of Dr. Tibbs's testimony, "the jury was left with [Dr. Tibbs's] essential position[,] which was [that Wright was] rapping about the shooting of a driver of a car with a 9[-]millimeter [gun] in broad daylight ... [and it] was just a vast and terrible coincidence in that these facts matched the facts of the murder charged to [Wright]." Id. at 26-27. Wright argues that "[t]rial counsel apparently realized his dire mistake[,] and did not mention Dr. Tibbs in his closing address to the jury." Id. at 27. Wright contends that, as a result of trial counsel's decision to present the testimony of Dr. Tibbs, Wright was deprived of a fair trial. Id. at 30.
The PCRA court set forth the relevant law, addressed Wright's third issue, and determined that it lacks merit. See PCRA Court Opinion, 7/10/15, at 4-6; see also Commonwealth v. Talbert , 129 A.3d 536, 541 (Pa. Super. 2015) (concluding that the defendant's rap music video describing the murder at issue was relevant and admissible). We agree with the reasoning of the PCRA court and affirm on this basis as to Wright's third issue. See PCRA Court Opinion, 7/10/15, at 4-6.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/28/2016
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