J-S51022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHNATHAN LANE

Appellant No. 2033 EDA 2015

Appeal from the PCRA Order June 5, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013415-2009

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 05, 2016

Johnathan Lane appeals from the order, entered in the Court of 

Common Pleas of Philadelphia County, which dismissed his petition filed 

pursuant to the Post Conviction Relief Act (PCRA).1 After careful review, we 

affirm. 

Following a jury trial, Lane was convicted of third-degree murder,2

criminal conspiracy,3and possessing an instrument of crime4 based upon his 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 2502(c).

3 18 Pa.C.S. § 903.

4 18 Pa.C.S. § 907(a).
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actions with his co-defendant, Shawn Jones-Bing. After a verbal altercation 

with the victim, Lane and Jones-Bing approached the victim’s car. Lane and 

Jones-Bing entered the car while the victim was inside; Lane sat in the front 

passenger seat and Jones-Bing sat in the back seat. Shortly after entering 

the car, eyewitnesses heard a gunshot coming from inside the car. Lane and 

Jones-Bing exited the vehicle, entered their own car, and drove away. The 

victim, who had been shot in the eye, was transported to a hospital and 

pronounced dead.

Based on these facts, Lane was convicted of the foregoing offenses, 

and on November 15, 2010, he was sentenced to an aggregate term of 20 to 

40 years’ incarceration. Following a timely direct appeal to this Court, 

Lane’s judgment of sentence was affirmed on July 30, 2012. See 

Commonwealth v. Lane, 55 A.3d 150 (Pa.Super. 2012) (unpublished 

memorandum). Thereafter, on January 3, 2013, the Pennsylvania Supreme 

Court denied Lane’s petition for allowance of appeal. Lane filed a timely pro 

se PCRA petition on July 24, 2013, and counsel was appointed. Lane later 

retained private counsel, who filed the instant amended PCRA petition. 

After issuing a notice pursuant to Pa.R.Crim.P. 907, the PCRA court 

dismissed the petition on June 5, 2015. Lane filed a timely notice of appeal 

and court-ordered concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b).

On appeal, Lane raises the following issues for our review:
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1. Was trial counsel ineffective because he failed to object – on 

due process grounds – to the court’s summary of proof 

beyond a reasonable doubt in the court’s final instructions?

2. Was trial counsel ineffective because he failed to request that 

the court charge that a summary of proof beyond a 

reasonable doubt went far beyond a suspicion, a probability of 

guilt, a preponderance of the evidence, and clear and 

convincing evidence?

3. Was trial counsel ineffective for failing to object to the court’s 

definition of reasonable doubt?

4. Was trial counsel ineffective because he failed to object to the 

court’s instructions on “demeanor evidence”?

Brief for the Appellant, at 8 (emphasis in original).

Our standard and scope of review regarding the denial of a PCRA 

petition is well-settled. We review the PCRA court’s findings of fact to 

determine whether they are supported by the record, and review its 

conclusions of law to determine whether they are free from legal error. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our 

review is limited to the findings of the PCRA court and the evidence of 

record, viewed in the light most favorable to the prevailing party at the trial 

level. Id.

To be eligible for relief under the PCRA, Lane must prove by a 

preponderance of the evidence that his conviction resulted from “ineffective 

assistance of counsel which, in the circumstances of the particular case so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). 

“Counsel is presumed to be effective and the burden of demonstrating 
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ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 

1238, 1244 (Pa. Super. 2011). To demonstrate ineffectiveness, the 

appellant must satisfy a three-part test by showing that: “1) his underlying 

claim is of arguable merit; (2) counsel had no reasonable basis for his action 

or inaction; and (3) the petitioner suffered actual prejudice as a result.” 

Spotz, supra at 311.

When reviewing a trial court’s jury instructions, we

will look to the instructions as a whole, and not simply isolated 

portions, to determine if the instructions were improper. We 

further note that, it is an unquestionable maxim of law in this 

Commonwealth that a 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. Only where there is an abuse of discretion 

or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) 

(citations omitted). Additionally, “[c]ounsel will not be deemed ineffective 

for failing to raise a meritless objection to proper jury instructions.” 

Commonwealth v. Howard, 749 A.2d 941, 957 (Pa. Super. 2000).

Lane’s first three issues assert that trial counsel failed to object or 

request clarification as to the trial court’s instructions regarding reasonable 

doubt. Specifically, Lane argues that the court’s summary of the 

requirements for proof beyond a reasonable doubt was incomplete and that 

the definition of reasonable doubt was incorrect.

The trial court’s instructions regarding the Commonwealth’s burden to 

prove that Lane committed the crimes charged were as follows:
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[I]t is the Commonwealth that always has the burden of proving 

each and every element of the crime charged and that each 

defendant is guilty of those crimes beyond a reasonable doubt. 

And I will give you those elements towards the end of this 

charge.

If the evidence presented fails to meet the Commonwealth’s 

burden, then your verdict must be not guilty.

On the other hand, if the evidence does prove beyond 

reasonable doubt that a defendant is guilty of the crimes 

charged, then your verdict should be guilty.

Although the Commonwealth has the burden of proving each 

defendant is guilty beyond reasonable doubt, this does not mean 

that the Commonwealth must prove its case beyond all doubt, 

nor to a mathematical certainty.

Nor must it demonstrate the complete impossibility of innocence.

You also do not have to have all of your questions answered 

before you can find a defendant guilty. But you must be 

conviced beyond reasonable doubt as to each and every element 

of each crime charged before you can find him guilty.

A reasonable doubt is a doubt that would cause a 

reasonably careful and sensible person to pause, hesitate, 

or refrain from acting upon a matter of the highest 

importance in his or her own affairs or to his or her own 

interests.

A reasonable doubt must fairly arise out of the evidence that was 

presented or out of the lack of evidence presented, with respect 

to some element of the crimes charged.

So, to summarize, you may not find the defendants guilty 

based upon a mere suspicion of guilt.

The Commonwealth has the burden of proving each defendant 

guilty beyond reasonable doubt. 

If the Commonwealth has met that burden, then the defendants 

are no longer presumed innocent and you should find them 

guilty. On the other hand, if the Commonwealth has not met its 

burden, then you must find them not guilty.
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N.T. Trial, 8/16/10, at 233-35 (emphasis added).

Lane argues that the phrase “to summarize, you may not find the 

defendants guilty based upon a mere suspicion of guilt” is “not a summary 

at all. It is a statement which takes the lowest level of proof (suspicion) and 

tells the jury that proof beyond a reasonable doubt requires more than 

suspicion.” Brief for the Appellant, at 12. Lane asserts that his trial counsel 

should have objected to this statement and requested an instruction that 

proof beyond a reasonable doubt goes beyond suspicion, probability, 

preponderance of the evidence, and clear and convincing evidence. Lane 

argues that without an objection and additional instruction, the statement 

reduced the standard of proof the jury needed to find in order to convict 

him. We disagree.

We note that the instructions the court provided regarding reasonable 

doubt and the Commonwealth’s burden of proof mirror the charge provided 

in the Pennsylvania Suggested Standard Criminal Jury Instructions. See

Pa.S.S.J.I (Criminal) § 7.01. Indeed, the standard instructions provide the 

exact phrase to which Lane objects. Additionally, Lane’s argument isolates 

the phrase and takes it out of context, in contravention of our mandate to 

consider jury instructions as a whole. Antidormi, supra. Moreover, our 

Supreme Court has rejected an identical argument objecting to the phrase 

“mere suspicion of guilt” when used within a rendition of the same standard 

jury instructions as were used here. See Commonwealth v. Ragan, 743 
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A.2d 390, 401-02 (Pa. 1999). Accordingly, any objection by trial counsel 

would have been meritless. Howard, supra.

Next, Lane asserts that trial counsel should have objected to the 

court’s definition of reasonable doubt. The court stated that a reasonable 

doubt arises when a reasonable person would “pause, hesitate, or refrain 

from acting” upon an important matter. N.T. Trial, 8/16/10, at 234. Lane 

argues that the inclusion of the term “refrain” improperly introduced a 

higher degree of doubt required for acquittal than did “pause” or “hesitate.” 

Brief for the Appellant, at 21. In Commonwealth v. Uderra, 862 A.2d 74 

(Pa. 2004), the same language was at issue, and the appellant argued that 

“defining reasonable doubt in such a way as would require a juror to 

‘refrain’ from acting altogether, rather than merely to ‘hesitate’ before 

acting, . . . significantly reduc[ed] the Commonwealth’s burden from the 

constitutionally-approved level and infring[ed] on the presumption of 

innocence.” Id. at 92. Our Supreme Court rejected this claim and held 

that, taken as a whole, the instructions accurately conveyed the concept of 

reasonable doubt. Id. Thus, the court’s instruction was proper in the 

instant matter and any objection to the definition would have been without 

merit. Howard, supra.

Finally, Lane argues that trial counsel was ineffective for failing to 

object to the trial court’s instructions regarding “demeanor evidence.” The 

court provided the following regarding the credibility of witnesses:
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You must consider and weigh the testimony of each witness and 

give it such weight as, in your judgment, it is fairly entitled to 

receive.

The matter of the credibility of a witness – that is, whether his or 

her testimony is believable and accurate, in whole or in part – is 

solely for your determination.

I will mention some of the factors which might bear on that 

determination: 

Whether the witness has any interest in the outcome of the case 

or has friendship or animosity towards other persons concerned 

in the case.

The behavior of the witness on the witness stand and his or her 

demeanor.

His or her manner of testifying and whether she or he shows any 

bias or prejudiced which might color his or her testimony. The 

accuracy of his or her testimony – I’m sorry.

The accuracy of his or her memory and recollection.

His or her ability and opportunity to acquire knowledge of or to 

observe the matters about which she or he testifies. 

The consistency or inconsistency of her or his testimony, as well

as its reasonableness or unreasonableness in light of all of the 

evidence of the case.

N.T. Trial, 8/16/10, at 235-36.

Lane claims that 

[t]hese instructions invited the jury to make credibility findings 

which could easily have led to a conviction based on “the 

behavior of the witness on the witness stand” or ”his or her own 

demeanor” or “his or her manner of testifying[.”] No standards 

were given [to] the jury on how to make these determinations or 

on how to make such judgments.

Brief for the Appellant, at 28. We disagree.

Here, Lane again takes certain phrases out of context, when jury 

instructions are to be considered in their entirety. Antidormi, supra. The 
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portions Lane isolates are possible factors, among others, that a jury may 

find relevant in determining credibility. We have held that such factors are 

permissible for a jury to consider: “[W]itnesses’ credibility may be assessed 

by the content of the testimony and the manner in which it is presented, 

e.g., did the witness ‘appear’ forthright in his demeanor and delivery.” 

Commonwealth v. Paxton, 821 A.2d 594, 597 (Pa. Super. 2003) 

Moreover, the standard jury instructions regarding credibility of witnesses 

include that the jury may consider how convincing a witness is and how a 

witness looks, acts, and speaks while testifying. See Pa.S.S.J.I. (Criminal) § 

4.17. Thus, we find that any objection counsel may have made to the 

court’s instructions regarding demeanor of witnesses would have been 

without merit. Howard, supra.

For the foregoing reasons, Lane has failed to show that any of his 

claims have merit; accordingly, counsel cannot be deemed ineffective. 

Spotz, supra. Accordingly, the PCRA court did not err in dismissing Lane’s 

PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/5/2016