J-S69032-13 NON-PRECEDENTI AL DECI SI ON - Judiciary of Pennsylvania

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N ON - PRECED EN TI AL D ECI SI ON - SEE SUPERI OR COURT I .O.P. 6 5 .3 7

COMMONWEALTH OF PENNSYLVANI A Appellee

I N THE SUPERI OR COURT OF PENNSYLVANI A

v.

JARRED BURTON KNI GHT

Appellant

No. 882 WDA 2013

Appeal from t he Order Ent ered April 24, 2013 I n t he Court of Com m on Pleas of But ler Count y Crim inal Division at No( s) : CP- 10- CR- 0001933- 2007

BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.

FI LED: January 13, 2014

Jarred Burt on Knight appeals from t he order ent ered in t he Court of

Com m on Pleas of But ler Count y, which dism issed his pet it ion brought pursuant t o t he Post - Convict ion Relief Act ( " PCRA" ) .1 Aft er careful review,

we affirm.

On direct appeal of Knight 's j udgm ent of sent ence, t his Court affirm ed

the trial court and sum m arized the facts of this case as follows:

On t he m orning of June 23, 2007, at 8: 00 a.m ., Jessica Davis, m other of the decedent, went to work and left her [ 14- m onthold] child in t he sole care of [ Knight ] , her boyfriend. That afternoon, [ Knight] ran to a neighbor's hom e seeking em ergency m edical help for the unresponsive child whom [ Knight] alleged had accident ally hit his head. The child was life- flight ed t o a hospital but later died as a result of blunt force traum a to his head.

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1 42 Pa.C.S. ?? 9541- 9546.

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Following a police invest igat ion, [ Knight ] was arrest ed and charged. The Com m onwealt h's case cent ered on an indent at ion in the drywall of the hom e's bathroom and the allegation that the child's fatal head inj uries were caused when [ Knight] threw the child into that wall. Com m onw e a lt h v. Knight , No. 1211 WDA 2009, unpublished m em orandum at 1- 2 ( Pa. Super. filed May 25, 2010) . A j ury convict ed Knight of third-degree m urder, endangering the welfare of a child, and recklessly endangering anot her person ( REAP) . On June 17, 2009, t he court sentenced him to twenty to forty years' im prisonm ent. Following t his Court 's order affirm ing Knight 's j udgm ent of sent ence, he filed a pet it ion for allowance of appeal, which t he Pennsylvania Suprem e Court denied on Sept em ber 10, 2010. Com m onw e a lt h v. Kn igh t , 8 A.3d 343 ( Pa. 2010) . On Sept em ber 2, 2011, Knight filed a t im ely counseled PCRA pet it ion. The court grant ed t wo request s by Knight t o file am ended pet it ions, and on August 28, 2012, t he court held a hearing. By order dat ed March 27, 2013, t he court not ified t he part ies of it s int ent ion t o dism iss t he pet it ion. On April 15, 2013, Knight filed his obj ect ions t o t he March 27, 2013 order, and a m otion to subpoena one of t he j urors who participated in Knight's trial. By order filed April 26, 2013, t he court denied PCRA relief and t he m ot ion t o subpoena a j uror. Knight filed a t im ely not ice of appeal on May 21, 2013, and by order filed June 4, 2013, t he PCRA court direct ed Knight t o file a st at em ent of errors com plained of on appeal pursuant t o Pa.R.A.P. 1925( b) . Knight filed

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his Rule 1925( b) st at em ent on June 20, 2013. The court filed it s Rule

1925( a) opinion on June 27, 2013.

On appeal t o t his Court , Knight raises t he following issues for our

review:

1. Was [ Knight's] trial counsel ineffective when he failed to obj ect to the introduction of a piece of physical evidence at trial when the collection of the evidence was questionable, and it could not be properly authenticated?

2. Was [ Knight's] trial counsel ineffective when he failed to file a post- sentence m otion asserting the verdict was against the weight of the evidence?

3. Was [ Knight's] trial counsel ineffective when he failed to file a post- sentence m otion challenging the discretionary aspects of [ Knight's] sentence?

4. Was [ Knight] denied his constitutional rights to a trial with a fair and im partial j ury when it was discovered at the conclusion of the t rial that a j uror who served on the j ury in this case should have been excluded because of her relationship with [ Knight's] uncle?

5. Was [ Knight] denied his constitutional right to a trial with a fair and im partial j ury when it was discovered at the conclusion of the trial that the sam e j uror should have been excluded from serving on the j ury for failing to answer honestly a m aterial question on voir dire?

6. Did t he PCRA court err when it refused t o grant a request t o subpoena the j uror in question to appeal at a hearing to be questioned about her answers on her j ury questionnaire, and about a visit she m ade to [ Knight's] uncle after the conclusion of the trial?

Brief of Appellant, at 4- 5.

I n reviewing an appeal from t he denial of PCRA relief, " our st andard of

review is whether the findings of the court are supported by the record and

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free of legal error." Com m on w e a lt h v. M a r t in , 5 A.3d 177, 182 ( Pa. 2010) (citations om itted).

To be eligible for relief on his ineffect iveness claim s under t he PCRA, Knight m ust prove by a preponderance of the evidence that his conviction resulted from " ineffective assistance of counsel which, in the circum stances of the particular case so underm ined the truth-determ ining process that no reliable adj udication of guilt or innocence could have taken place." 42 Pa.C.S. ? 9543( a) ( 2) ( ii) . " Counsel is presum ed t o be effect ive and t he burden of dem onstrating ineffectiveness rests on appellant." Com m on w e a lt h v. Ou sle y, 21 A.3d 1238, 1244 ( Pa. Super. 2011) . To prevail on an ineffectiveness claim , the defendant m ust show that the underlying claim had arguable m erit, counsel had no reasonable basis for his or her action, and counsel's action resulted in prej udice to the defendant . Com m on w e a lt h v. Pr in ce , 719 A.2d 1086, 1089 ( Pa. Super. 1998) .

At trial, the court adm itted into evidence a piece of dam aged drywall and part of a stud that were rem oved from the bathroom wall where Knight hit t he vict im 's head.2 As Knight argues:

The placem ent of t he st ud behind t he dent was essent ial t o proving t he Com m onwealt h's t heory t hat t he inj uries Tyler suffered were a result of his head being forced into the bathroom wall. I n order for t he Com m onwealt h's t heory t o be plausible, Tyler's head had t o hit t he t wo by four st ud, and consequent ly,

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2 This was a part icularly im port ant piece of evidence because it cont radict ed Knight's version of t he facts, that the child hit his head on the bathtub.

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t he st ud had t o be behind t he dent in t he drywall. I f Tyler's head had sim ply hit the drywall and the em pty space behind it, Tyler would not have suffered t he inj uries he did. Brief of Appellant, at 18- 19. At t rial, Trooper Randolph Guy t est ified t hat on June 25, 2007, he was present when the victim 's grandfather, who owned the property where the crim e occurred, " cut out that portion of the wallboard and the stud that was direct ly behind t he wallboard." N.T. Trial, 5/ 12/ 09, at 73. Knight argues t hat t he failure of his t rial counsel, Michael DeRiso, Esquire, t o obj ect t o t he adm ission of the drywall and the stud entitles him to relief. We disagree. " Evidence is relevant if: ( a) it has a t endency t o m ake a fact m ore or less probable than it would be without the evidence; and ( b) the fact is of consequence t o det erm ining t he act ion." Pa.R.E. 401. During t he PCRA hearing, the following exchange took place between the assistant district at t orney and At t orney DeRiso: Q: And you did not m ake an obj ect ion as t o relevance [ of t he drywall and stud] because, in your opinion, that would have been overruled? A: Well, it was relevant because it was your theory of t he case. N.T. PCRA Hearing, 8/ 28/ 12, at 47. Accordingly, t here is no arguable m erit to Knight's claim that the evidence was irrelevant. Knight's m ain com plaint with respect to the physical evidence is that trial counsel should have obj ected to its adm ission because it was not properly aut hent icat ed or ident ified. " To sat isfy t he requirem ent of authenticating or identifying an item of evidence, the proponent m ust

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produce evidence sufficient to support a finding that the item is what the proponent claim s it is." Pa.R.E. 901( a) .

At t rial, Trooper Guy t est ified t hat he observed t he vict im 's grandfat her cut t ing t he port ion of t he drywall and t he st ud. N.T. Trial, 5/ 12/ 09, at 73, 78. He explained that he took custody of the item s and t ransport ed t hem t o t he St at e Police Barracks in But ler where t hey were logged into evidence. I d. at 78-79.

On cross- exam inat ion, At t orney DeRiso quest ioned Trooper Guy about the collection of evidence and its authenticity. He questioned him about having a civilian collect evidence at the crim e scene, an occurrence the Trooper conceded had " not oft en" happened during his t enure. I d. at 79. He asked Trooper Guy why he " didn't t ake phot ographs or m ark t he drywall so t hat t here wouldn't be a quest ion as t o [ t he] posit ion of t hat st ud?" I d. at 82. He also m ade Trooper Guy concede t hat t he indent at ion was not st opped by t he st ud. I d. He furt her quest ioned Trooper Guy about t he protection of the integrity of t he evidence while it was in police custody. I d. at 84.

At t he PCRA hearing, t he following exchange t ook place bet ween Knight 's counsel and At t orney DeRiso on direct exam inat ion.

Q: Aft er you considered [ t he drywall and t he st ud] , are t here any other theories that com e to your m ind in term s of excluding or keeping that kind of evidence out? A: I f it's relevant then the weight is to be determ ined by the fact finder. And so if I can't keep it out for any valid reason, i.e., bad warrant, you know, unconstitutionality of the search, then

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m y argum ent is relevance. And if it doesn't work, it goes to the weight. And typically, that's what happens. N.T. PCRA Hearing, 8/ 28/ 12, at 21. The following exchange occurred bet ween t he assist ant dist rict at t orney and At t orney DeRiso on cross- exam inat ion: Q: Just t o m ake t he record clear t hen, in your opinion, t he drywall issue goes to the weight of the evidence, is that correct? A: Yes, weight and credibilit y of t hose w ho preserved it .

. . . . . Q: And your st rat egy was t o deal wit h t he preservat ion issues by cross exam inat ion of t he Com m onwealt h wit nesses, would that be correct? A: . . . [ Y] es, t hrough cross.

I d. at 47. Because Trooper Guy properly aut hent icat ed t he physical evidence,

At t orney DeRiso had a reasonable basis not t o obj ect t o it s adm ission. Rat her, he chose t o underm ine t he credibilit y of t he Com m onwealt h's witnesses by calling into question the reliability of their m ethods of obtaining and preserving the evidence. As this was an issue of weight rather than adm issibilit y, it was properly placed before t he j ury. Se e Com m onw e a lt h v. Ra bold, 920 A.2d 857, 860 ( Pa. Super. 2007) . Accordingly, Knight is not entitled to relief on this claim .

Knight next argues that trial counsel was ineffective for failing to file a post sentence m otion asserting that his conviction was against the weight of the evidence. He claim s that if counsel had filed a m otion, it " would m ost

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likely have been successful." Appellant 's Brief, at 22. Like t he PCRA court , we disagree.

The j ury convict ed Knight of t hird- degree m urder, which requires no specific int ent t o kill. Rat her, t he requisit e m ens rea is m alice, which consists of wickedness of heart, cruelty, and recklessness of consequences. Com m on w e a lt h v. D iSt e fa n o, 782 A.2d 574, 582 ( Pa. Super. 2001) . Knight asserts that there was no evidence that he acted with m alice, and therefore the verdict was shocking. I t is well settled that " a new trial should be awarded when the j ury's verdict is so contrary to the evidence as to shock one's sense of j ustice and the award of a new trial is im perative so t hat right m ay be given anot her opport unit y t o prevail." Com m onw ea lt h v. Cla y, 64 A.3d 1049, 1055 ( Pa. 2013) ( cit at ion om it t ed) .

At t he PCRA hearing, t he following exchange occurred bet ween Knight 's counsel and At t orney DeRiso:

Q: Do you believe t hat an argum ent could be m ade t hat t he verdict was against the weight of the evidence? A: Honestly, no. When the verdict of third degree cam e back and we didn't have to go to the penalty phase, as far as I was concerned, they believed som e of what we put up and som e of what t he Com m onwealt h put up, hence t he t hird degree. They didn't believe it was a prem editated killing. I would have liked to have gotten som ething less, but, no, I don't believe that would have been a motion that would have been meritorious with this cou r t . N.T. PCRA Hearing, 8/ 28/ 12, at 35. As t he PCRA court not ed, t he record reveals t he following evidence of m alice:

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