Opinion
J-A28038-17 No. 3485 EDA 2016
01-05-2018
COMMONWEALTH OF PENNSYLVANIA v. BIN WANG, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0008035-2007 BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J. MEMORANDUM BY DUBOW, J.:
Appellant, Bin Wang, appeals from the Order entered in the Philadelphia County Court of Common Pleas dismissing his first Petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm on the basis of the PCRA court's March 20, 2017 Opinion.
The underlying facts, as gleaned from the certified record and the PCRA court's Pa.R.A.P. 1925(a) Opinion, are as follows. On November 6, 2008, a jury convicted Appellant of First-Degree Murder and Possession of an Instrument of Crime in connection with the May 11, 2007 shooting of Appellant's wife, Xiangzhen Lin, also known as Sharon Lin ("Sharon"), inside the couple's Philadelphia home during a dispute. Appellant provided a statement to police claiming that Sharon committed suicide by shooting herself in the head, and Appellant testified in his own defense at trial. Following the jury's verdict, the trial court immediately sentenced Appellant to life imprisonment.
18 Pa.C.S. § 2502(a) and 18 Pa.C.S. § 907, respectively.
Appellant filed a timely direct appeal challenging, inter alia, the sufficiency and weight of the evidence, and this Court affirmed Appellant's Judgment of Sentence. Commonwealth v. Bin Wang , No. 903 EDA 2009 (Pa. Super. filed Feb. 10, 2011) (unpublished memorandum). On August 9, 2011, our Supreme Court denied allowance of appeal. Commonwealth v. Bin Wang , No. 162 EAL 2011 (Pa. filed Aug. 9, 2011).
On September 7, 2011, Appellant filed a pro se PCRA Petition, and the PCRA court appointed counsel. Appellant eventually retained private counsel, who filed an Amended PCRA Petition on May 22, 2016. Appellant attached an extensive affidavit from a new purported expert that supported Appellant's suicide theory. On August 25, 2016, the Commonwealth filed a Motion to Dismiss.
On September 20, 2016, the PCRA court filed a notice of its intent to dismiss Appellant's PCRA Petition without a hearing pursuant to Pa.R.Crim.P. 907. On November 4, 2016, the PCRA court dismissed Appellant's PCRA Petition.
The PCRA court amended its Order on November 15, 2016, after Appellant had filed a Notice of Appeal.
Appellant filed a timely Notice of Appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents seven issues for our review:
[1.] Trial counsel was ineffective for not expanding the scope of his forensic investigation by consulting with and retaining a forensic expert like Brent Turvey to conduct a holistic examination of all the physical evidence. Trial counsel's ineffectiveness prejudiced [Appellant] because there is a reasonable probability the outcome of his trial would have been different because the physical evidence, as Mr. Turvey's 35-page affidavit makes clear, supported [Appellant's] suicide narrative far more than the Commonwealth's homicide narrative. The PCRA court, therefore, erred when it rejected [Appellant's] trial counsel ineffectiveness claim.
[2.] Trial counsel failed to present the testimony of [Appellant's] three neighbors-Troy Davis, Timothy Flemings, and Rick Kern-each of whom would have corroborated salient aspects of [Appellant's] statement and trial testimony, thereby bolstering his defense that Sharon Lin committed suicide and creating reasonable doubt regarding the Commonwealth's homicide narrative. Trial counsel's ineffectiveness prejudiced [Appellant] because there is a reasonable probability that had trial counsel presented Davis, Flemings, and Kern the outcome of his trial would have been different. The PCRA court, therefore, erred when it rejected [Appellant's] trial counsel ineffectiveness claim.
[3.] Trial counsel failed to object to inadmissible and prejudicial hearsay and "other crimes/bad acts" testimony that [Appellant] had previously assaulted and mistreated Sharon Lin. Assuming the probative value of this evidence outweighed its prejudicial impact, trial counsel failed to request a cautionary instruction
directing the jury to consider this evidence solely for the limited purpose for which it was admitted. Trial counsel's ineffectiveness prejudiced [Appellant] because had trial counsel timely objected, the trial court would have excluded this evidence and testimony, and had it done so, there is a reasonable probability the outcome of [Appellant's] trial would have been different. Likewise, if timely objected to and timely requested, the trial court would have issued a cautionary instruction prohibiting the jury from considering this evidence for propensity purposes. The PCRA court, therefore, erred when it rejected [Appellant's] trial counsel ineffectiveness claim.
[4.] Trial counsel failed to request a "missing evidence" instruction based on the Commonwealth's admitted negligence in failing to preserve evidence from Sharon Lin's hands that would have enabled forensic examiners to perform gunshot residue testing on Ms. Lin's hands. The Commonwealth's negligence deprived [Appellant] of his due process right to potentially exculpatory evidence. Trial counsel did not have a reasonable basis for not requesting a "missing evidence" instruction, especially after trial counsel mentioned this very fact during trial and closing arguments. Trial counsel's ineffectiveness prejudiced [Appellant] because had the trial court issued a "missing evidence" instruction, it is reasonably probable the outcome of [Appellant's] trial would have been different. The PCRA court, therefore, erred when it rejected [Appellant's] trial counsel ineffectiveness claim.
[5.] During the charge conference, when the trial court gave no mention of issuing an instruction regarding [Appellant's] theory of defense, i.e., Sharon Lin committed suicide, trial counsel failed to object and failed to request an instruction informing the jury of [Appellant's] suicide defense. Trial counsel's ineffectiveness prejudiced [Appellant] because had the jury been properly and specifically instructed, there is a reasonable probability [Appellant's] trial would have turned out differently. The PCRA court, therefore, erred when it rejected [Appellant's] trial counsel ineffectiveness claim.
[6.] The cumulative impact of trial counsel's objectively unreasonable decisions before and during trial undermines confidence in the jury's conviction entitling [Appellant] to a new trial. The PCRA court, therefore, erred when it rejected [Appellant's] cumulative prejudice claim.
[7.] The PCRA court erred by not granting an evidentiary hearing where trial counsel, Troy Davis, Timothy Flemings, Rick Kerns, and Brent Turvey could testify and present evidence in support of [Appellant's] suicide narrative and trial counsel ineffectiveness. The PCRA court, therefore, erred when it rejected [Appellant's] evidentiary hearing request.Appellant's Brief at 4-6 (citations omitted).
We review the denial of a PCRA Petition to determine whether the record supports the PCRA court's findings and whether its order is otherwise free of legal error. Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the findings of the PCRA court if they are supported by the record. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012).
There is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court can determine from the record that there are no genuine issues of material fact. Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008). "With respect to the PCRA court's decision to deny a request for an evidentiary hearing, or to hold a limited evidentiary hearing, such a decision is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion." Commonwealth v. Mason , 130 A.3d 601, 617 (Pa. 2015).
The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa. Super. 2010). The burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy this burden, Appellant must plead and prove by a preponderance of the evidence that: "(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different." Commonwealth v. Fulton , 830 A.2d 567, 572 (Pa. 2003).
Failure to satisfy any prong of the test will result in rejection of the appellant's ineffective assistance of counsel claim. Commonwealth v. Jones , 811 A.2d 994, 1002 (Pa. 2002). "If a petitioner cannot prove that trial counsel was ineffective, then petitioner's derivative claim of appellate counsel ineffectiveness must also fail[.]" Commonwealth v. Hutchinson , 25 A.3d 277, 286 (Pa. 2011).
To obtain relief on a claim that counsel was ineffective for failing to call a potential witness, the PCRA petitioner must establish that:
(1) the witness existed;
(2) the witness was available to testify for the defense;
(3) counsel knew of, or should have known of, the existence of the witness;
(4) the witness was willing to testify for the defense; and
(5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.Commonwealth v. Washington , 927 A.2d 586, 599 (Pa. 2007).
"We have often held that no number of failed claims may collectively warrant relief if they fail to do so individually." Commonwealth v. Spotz , 18 A.3d 244, 321 (Pa. 2011) (citation and quotation marks omitted). "However, we have clarified that this principle applies to claims that fail because of lack of merit or arguable merit." Id. "When the failure of individual claims is grounded in lack of prejudice, then the cumulative prejudice from those individual claims may properly be assessed." Id.
The Honorable Sheila Woods-Skipper, sitting as the PCRA court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record and relevant case law in addressing Appellant's claims. The record supports the PCRA court's findings and the Order is otherwise free of legal error. We, thus, affirm on the basis of the PCRA court's March 20, 2017 Opinion. See PCRA Court Opinion, 3/20/17, at 9-18 (concluding it properly dismissed Appellant's PCRA Petition because: (1) trial counsel's decision to call an expert pathologist to support his suicide theory at trial had a reasonable basis designed to effectuate his interests; Appellant's hindsight reassessment of trial counsel's strategy is unpersuasive and contrary to case law; (2) trial counsel was not ineffective for failing to call three neighbor witnesses because their testimony would have been cumulative of other evidence; (3) trial counsel was not ineffective for failing to object to evidence that Appellant assaulted and mistreated the victim, which was admissible as other acts evidence under several exceptions to Pa.R.E. 404(b), including res gestae, "motive, malice, intent, and ill will[,]" PCRA Court Opinion at 13; (4) trial counsel was not ineffective for failing to request a "missing evidence" instruction for police failure to "bag" Sharon's hands in order to perform gunshot residue testing because the evidence was only "potentially useful" and Appellant failed to demonstrate bad faith; (5) trial counsel was not ineffective for failing to request a jury instruction regarding his suicide defense because the evidence was not consistent with suicide, and a "suicide" instruction would have confused the jury; (6) Appellant's cumulative prejudice claim failed as a matter of law because each of his ineffectiveness claims lacked arguable merit; and (7) the PCRA court did not abuse its discretion in refusing to hold an evidentiary hearing because Appellant's PCRA Petition presented no genuine issues of material fact.).
We note that on November 2, 2017, Appellant filed an "Application for Post-Submission Communication" pursuant to Pa.R.A.P. 2501(a), which the Commonwealth opposed in a November 6, 2017 Motion to Strike and Answer. We hereby deny Appellant's Application because Appellant has failed to demonstrate any basis under Rule 2501 that would permit such a post-submission communication, e.g., a "change in status of authorities" or "when expressly allowed at the bar at the time of the argument." Pa.R.A.P. 2501.
Moreover, the court instructed the jury on the elements of First-Degree Murder. This instruction sufficiently clarified that (1) the Commonwealth was required to demonstrate that Appellant killed Sharon; and (2) if the jury concluded that Sharon had shot herself, Appellant was to be found not guilty. See N.T. Trial, 11/5/08, at 250.
The parties are instructed to attach a copy of the PCRA court's March 20, 2017 Opinion to all future filings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/5/18
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