Commonwealth v. Sun

287 A.3d 893 (Table)

COMMONWEALTH of Pennsylvania

v.Chengzao SUN, Appellant

No. 593 EDA 2022

Superior Court of Pennsylvania.

Filed October 25, 2022

MEMORANDUM BY BOWES, J.:

Chengzao Sun appeals from the dismissal of his Post Conviction Relief Act ("PCRA") petition. We affirm.

This Court offered the following summary of the facts in resolving Appellant's direct appeal:

On July 12, 2019, [Appellant] and his wife, Shu Yang, were having dinner when they began to argue. Yang attempted to walk into the dining room, carrying her bowl of food. [Appellant] followed her and "tapped" her from behind, causing her to fall into the dining room table, spilling her bowl of food. Yang then attempted to flee back into the kitchen and [Appellant] followed, holding an aluminum baseball bat. [Appellant] hit Yang with the bat on her back and legs, resulting in painful bruises. Yang called the police for help and "home violence."

Police Officers Adrianne Rodriguez and Ryan Moore responded to the scene, where Yang was visibly upset and had fresh, swelling red injuries [from the assault]. [Appellant] had no observable injuries. [Appellant] stated to Officer Moore that he and his wife had a verbal argument that turned [into a] physical [altercation]. He admitted he lost control, grabbed the baseball bat, and hit his wife with it.

Yang gave a written statement to the police, in which she stated that [Appellant] had pushed her into the dining room table, causing their son to flee upstairs and Yang to run into the kitchen. [Appellant] then followed Yang into the kitchen with a baseball bat, and when she continued to argue with him, hit her with the bat ... while she attempted to defend herself with a plastic spatula. During this time, [Appellant] and Yang's children were crying and attempting to defend their mother with a golf club.

Commonwealth v. Sun , 268 A.3d 401 (Pa. Super. 2021) (non-precedential decision at *1) (record citations omitted).

Appellant was arrested and charged with aggravated assault, simple assault, and harassment. At his jury trial, Yang testified that Appellant had touched her "accidentally" and had not intended to injure her. N.T. Jury Trial, 1/29/20, at 28-29, 46. In response, the Commonwealth introduced Yang's written statement in which she stated that Appellant pushed her onto the dining room table before beating her repeatedly with a metal bat in her back and leg. Id . at 67-68. The Commonwealth also introduced photographs depicting her injuries. On January 30, 2020, a jury convicted Appellant of all charges. See N.T. Jury Trial, 1/30/20, at 102. The trial court found Appellant guilty of summary harassment. Id . at 108-09. Prior to sentencing, Appellant filed a motion for extraordinary relief, challenging the sufficiency of the evidence and raising a claim of prosecutorial misconduct. The Commonwealth filed an answer, and the court denied the motion without prejudice.

On July 9, 2020, the court sentenced Appellant to forty-eight hours to twenty-three months of imprisonment and thirty-six months of concurrent probation on the aggravated assault conviction. Appellant filed a post-sentence motion, repeating the arguments from his pre-sentence motion. After both sides submitted briefs and a hearing was held, the motion was denied by operation of law. Appellant timely appealed, challenging the sufficiency of the evidence to sustain his aggravated assault conviction and the effectiveness of his trial counsel for not objecting to the trial court's jury instructions. We affirmed the judgment of sentence, deferring the ineffectiveness issue to collateral review. See Sun , supra (non-precedential decision at *3). Appellant did not seek allocatur review in our Supreme Court.

On December 17, 2021, Appellant filed the timely, counseled PCRA petition that is the subject of this appeal. Therein, he asserted trial counsel was ineffective for not objecting to the trial court's failure to charge the jury on the definition of "serious bodily injury." See PCRA Petition, 12/17/21, at 8-17. Appellant also alleged that trial counsel was ineffective for not litigating a motion to suppress his incriminating statements to police and for not objecting to prosecutorial misconduct during the prosecutor's closing argument. Id . at 18-31. After the Commonwealth submitted its answer and Appellant filed a reply brief, the court issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant informed the court that he would not file a response to the Rule 907 notice and the court dismissed the petition. A timely notice of appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Did the PCRA court err in summarily denying the claim that trial counsel was ineffective in failing to object to the trial court's failure to instruct the jury on the definition of the term "serious bodily injury," as this term is an essential component of the element of the offense of aggravated assault, 18 Pa.C.S. § 2702(a)(4), alleging that Appellant employed a deadly weapon in committing his assault?

2. Did the PCRA court err in summarily denying the claim that trial counsel was ineffective in failing to litigate a motion to suppress Appellant's incriminating statements given in response to custodial interrogation but which were not preceded by the issuance of Miranda [v. Arizona , 384 U.S. 436 (1966) ] warnings?

3. Did the PCRA court err in summarily denying the claim that trial counsel was ineffective in failing to object to repeated instances of serious misconduct in the prosecutor's closing argument?

Appellant's brief at 3.

We begin with a discussion of the pertinent legal principles. Our "review is limited to the findings of the PCRA court and the evidence of record," and we do not "disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error." Commonwealth v. Diggs , 220 A.3d 1112, 1116 (Pa. Super. 2019). Similarly, "[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions." Id . "[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary." Id . "It is an appellant's burden to persuade us that the PCRA court erred and that relief is due." Commonwealth v. Stansbury , 219 A.3d 157, 161 (Pa. Super. 2019) (cleaned up).

Appellant's arguments all raise allegations of trial counsel ineffectiveness.¹ Counsel is presumed to be effective, and a PCRA petitioner bears the burden of proving otherwise. See Commonwealth v. Becker , 192 A.3d 106, 112 (Pa. Super. 2018). To do so, a petitioner must plead and prove that: (1) the legal claim underlying his ineffectiveness claim has arguable merit; (2) counsel's decision to act (or not) lacked a reasonable basis designed to effectuate the petitioner's interests; and (3) prejudice resulted. Id . The failure to establish any of the three prongs is fatal to the claim. Id . at 113.

I. Aggravated Assault Jury Instruction

In his first claim Appellant argues that trial counsel was ineffective when he failed to object to the trial court's jury instruction concerning aggravated assault. See Appellant's brief at 10-25. Appellant was charged with aggravated assault under 18 Pa.C.S. § 2702(a)(4), which required the Commonwealth to prove beyond a reasonable doubt that he "attempt[ed] to cause or intentionally or knowing cause[d] bodily injury to another with a deadly weapon." Appellant concedes that the trial court provided the standard jury instruction for the crime charged but alleges that counsel should have requested an additional instruction defining "serious bodily injury" since the court mentioned the term while defining "deadly weapon" in its aggravated assault instruction. Id . at 19.

To assess the merits of the underlying claim, we review the trial court's jury instruction pursuant to the following standard:

[T]he reviewing court must consider the charge as a whole to determine if the charge was inadequate, erroneous, or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. A new trial is required on account of an erroneous jury instruction only if the instruction under review contained fundamental error, misled, or confused the jury.

Commonwealth v. Fletcher , 986 A.2d 759, 762 (Pa. 2009) (cleaned up).

At issue in the case sub judice is the following instruction given by the trial court:

So to find the defendant guilty of aggravated assault, and this is attempted bodily injury with a deadly weapon, you must find that each of the following elements have [sic ] been proven beyond a reasonable doubt:

First, that the defendant attempted to cause bodily injury to his wife, Shu Yang. Bodily injury means impairment of a physical condition or substantial pain. In order to find that he attempted to do this, you must find that he engaged in conduct that constituted a substantial step toward causing bodily injury to her.

Secondly, that the defendant used a deadly weapon in the attempt. A deadly weapon, in this case, is any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality that in the manner in which it was used or intended to be used is calculated or likely to produce death or serious bodily injury – we're talking about a baseball bat – and that the defendant's conduct in this regard was intentional; in other words, it was his conscious object or purpose to cause such bodily injury.

It's important to understand how these elements relate to each other in order to assess whether they've been proven beyond a reasonable doubt. In proving this count of aggravated assault,

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