J-S29018-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID NAM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3641 EDA 2018

Appeal from the PCRA Order Entered December 19, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0302561-1997

BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 21, 2019

David Nam appeals from the order, entered in the Court of Common 

Pleas of Philadelphia County, dismissing his petition for relief filed under the 

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful 

review, we affirm.

The PCRA court summarized the facts as follows:

On August 16, 1996, [Nam] and four of his friends attempted to 

rob the home of Anthony Schroeder. When Schroeder came to 

the door with a gun, [Nam] immediately shot him through the 

screen door and killed him. [Nam] and [his] co-conspirators ran 

away but returned a few minutes later to steal Schroeder’s gun. 

Several days later, [Nam’s] co-defendants committed another 

robbery during which time they were arrested. Police recovered 

[Schroeder’s] stolen gun from [Nam’s] co-defendants and 

eventually connected Schroeder’s murder to [Nam]. On January 

18, 1997, [Nam] was arrested and charged with murder. [Nam] 

was originally held without bail. On May 22, 1997, the Honorable 

Carolyn Temin granted [Nam’s] motion to change his bail status. 

On January 12, 1998, [Nam] was released on bail and placed on 

house arrest. After appearing at several pretrial hearings, [Nam] 

eventually fled to South Korea on March 12, 1998, the date of his 
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next court hearing. He was detained by Korean authorities in 

1999 but was eventually released as a South Korean citizen, since 

no extradition agreement existed between South Korea and the 

United States at that time. Later that same year, an extradition 

agreement was ratified between the two countries[,] but [Nam] 

managed to evade both South Korean and American authorities. 

[Nam] remained in South Korea for over ten years. On March, 

18, 2008, [Nam] was arrested in South Korea. In order to fight 

extradition to the United States, [Nam] wrote to the South Korean 

[j]udge handling his matter[,] admitting to his crimes and 

expressing deep remorse. He also begged the [j]udge not to 

extradite him to the United States.

On September 16, 2008, the South Korean government granted 

the FBI’s extradition request and [Nam] was placed into the 

custody of the FBI and brought back to Pennsylvania to stand trial. 

Before leaving South Korea[,] [Nam] was notified that he would 

not be able to bring any of his belongings with him. As a result, 

[Nam] requested that FBI Agent [Kevin] McShane take possession 

of several documents and photographs belonging to [Nam] and 

bring them back to the United States.

Several of these documents were letters which [Nam] wrote and 

sent to the South Korean [j]udge handling his extradition matter. 

These letters included incriminating statements and admissions to 

his crime. Ultimately, after a motion to suppress these documents 

was argued before the Honorable Renee Cardwell Hughes, these 

documents were [] allowed into evidence at trial.

Trial Court Opinion, 2/28/19, at 1-3.

On January 29, 2010, a jury found Nam guilty of the above offenses. 

He was sentenced to life sentence imprisonment, plus a consecutive aggregate 

term of 121⁄2 to 25 years’ incarceration. Nam appealed his judgment of 

sentence to this Court and we affirmed his judgment of sentence on March 

25, 2011. Commonwealth v. Nam, 642 EDA 2010 (Pa. Super. March 25, 

2011). Nam filed a petition for allowance of appeal, which the Pennsylvania

Supreme Court denied on September 14, 2011. Commonwealth v. Nam, 
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29 A.3d 372 (Pa. 2011) (per curiam). Nam timely filed a pro se PCRA petition 

on August 8, 2012. On February 28, 2017, Nam amended his petition pro se.

1

The PCRA court appointed counsel and he filed a counseled amended PCRA 

petition on February 10, 2018. On September 6, 2018, the Commonwealth 

filed a motion to dismiss the petition. The PCRA court sent a Pa.R.Crim.P. 907 

notice of intent to dismiss on November 19, 2018. After a counseled response 

from Nam, the PCRA court dismissed the petition on December 19, 2018. This 

timely appeal followed.

The sole issue on appeal is whether trial counsel was ineffective for 

failing to object to the trial court’s jury instruction regarding the beyond-areasonable-doubt standard. Nam argues the jury instruction mischaracterized

the reasonable doubt standard and he suffered prejudice as a result.

Nam’s issue concerns trial counsel’s effectiveness. We presume counsel 

was effective, and it is Nam’s burden to prove otherwise. See 

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). To prevail on an 

ineffectiveness claim, Nam must establish:

(1) the underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s actions or failure to act; and (3) 

____________________________________________

1 We note that the original petition was not acted upon for more than four 

years. In the record, there is no explanation for the inaction. Even though 

Nam amended his petition more than four-and-a-half years after the filing of 

the original petition, the amended petition is still timely. See Pa.R.Crim.P. 

905(a) (amendments “shall be freely allowed to achieve substantial justice”); 

See also Commonwealth v. Flanagan, 854 A.2d 489, 495-96, 499-500 (Pa. 

2004) (PCRA petition properly treated as amended petition not subject to oneyear time limitation even though it had been “dormant for ten years”).
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[appellant] suffered prejudice as a result of counsel’s error such 

that there is a reasonable probability that the result of the 

proceeding would have been different absent such error.

Commonwealth v. Lesko, 15 A.3d 345, 373 (Pa. 2011). Nam must prove 

each element; merely alleging each element is not sufficient. See 

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015). A reasonable 

basis does not require that counsel chose the most logical course of action, 

but that the decision had some reasonable basis. Commonwealth v. Bardo, 

105 A.3d 678, 684 (Pa. 2014). “To demonstrate prejudice, a petitioner must 

show that there is a reasonable probability that, but for counsel’s actions or 

inactions, the result of the proceeding would have been different.” Mason, 

130 A.3d at 618 (citing Strickland v. Washington, 466 U.S. 668, 684 

(1984)).

“A trial court’s charge to the jury must contain a correct statement of 

the law.” Commonwealth v. Patosky, 656 A.2d 499, 505 (Pa. Super. 1995) 

(citations omitted). Due process prohibits the conviction of a person except 

upon proof beyond a reasonable doubt. A court is free to use its own form of 

expression as long as it adequately, accurately, and clearly explains the law 

to the jury. Commonwealth v. Wright, 961 A.2d 119, 145 (Pa. Super. 

2008). When addressing challenges to a jury instruction, we consider the 

challenged portion in light of the entire instruction. Commonwealth v. Ly, 

980 A.2d 61, 88 (Pa. 2009). 

Here, the trial court instructed the jury on reasonable doubt as follows:
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[T]his burden we talk about, proof beyond a reasonable doubt, is 

the highest standard in the law. There is nothing greater, and 

that is the burden the Commonwealth bears. But this does not 

mean that the Commonwealth must prove its case beyond all 

doubt. The Commonwealth is not required to meet some 

mathematical certainty. The Commonwealth is not required to 

demonstrate the complete impossibility of innocence. The 

Commonwealth is[,] in fact[,] not required to answer every single 

question you may have.

The Commonwealth’s burden is to prove the elements of each and 

every crime beyond a reasonable doubt. Now, a reasonable doubt 

is a doubt that would cause a reasonably careful and sensible 

person to pause, to hesitate or to refrain from acting upon a 

matter of the highest importance to their own affairs or their own 

interests. A reasonable doubt must fairly arise out of the evidence 

that was presented or out of the lack of evidence that was 

presented or out of the lack of evidence that was presented with 

respect to some element of each of the crimes charged.

I find it useful to think about reasonable doubt this way. 

Now, because I was fortunate to speak with each and every 

one of you, I know each and every one of you has someone 

in your life you love; a sibling, a spouse, a significant other, 

a parent. Each one of you loves somebody.

What if you were told that your precious one had a lifethreatening condition and that the only medical protocol 

for that life-threatening condition was a surgery. Now, if 

you’re like me, you’re probably going to ask for a second 

opinion. You might ask for a third opinion. You’d probably 

do research; what is this condition, what are the accepted 

protocols for this condition, what’s the likelihood of 

success, probably go on the internet, do everything you 

can, and if you’re like me, you’re going to go through your 

Rolodex, and everybody that you know who has any 

relationship to medicine you’re going to call them. You’re 

going to talk to them, but at some moment the question is 

going to be called. You are going to have to cut your 

research. Do you allow your loved one to go forward[?] If 

you allow your loved one to go forward with the surgery, 

it’s not because you have moved beyond all doubt. Ladies 

and gentlemen, there are no guarantees in life. If you go 
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forward, it’s because you have moved beyond all 

reasonable doubt.

A reasonable doubt must be a real doubt, ladies and gentlemen. 

It may not be a doubt that is imagined or manufactured to avoid 

carrying out an unpleasant responsibility. You may not find David 

Nam guilty based on a mere suspicion of guilt. The 

Commonwealth’s burden is to prove David Nam guilty beyond a 

reasonable doubt. If the Commonwealth has met that burden, 

then David Nam is no longer presumed to be innocent and you 

should find him guilty. If on the other hand the Commonwealth 

has not met that burden, then you must find him not guilty.

N.T. Trial, 1/29/10, at 99-101 (emphasis added).

Nam argues the bolded portion above improperly altered the reasonable

doubt standard. However, when read in context of the entire instruction, the 

entire instruction states the law accurately. See Patosky, 656 A.2d at 506

(“a reasonable doubt . . . must be an honest doubt arising out of the evidence 

itself, the kind of a doubt that would restrain a reasonable man (or woman) 

from acting in a matter of importance to himself (or herself).” 

Commonwealth v. Butler, 272 A.2d 916, 920 (Pa. 1971)). Judge Hughes 

used language similar to the standard instruction both before and after using 

a hypothetical to explain the concept of reasonable doubt. N.T. Trial, 1/29/10, 

at 99,101. Although Judge Hughes’ instruction was personalized, trial judges 

are granted a certain degree of latitude in their jury instructions. Wright, 

961 A.2d at 145. Judge Hughes stayed within those boundaries.

As the jury instruction was permissible, Nam’s underlying

ineffectiveness claim does not have merit. See Lesko, 15 A.3d at 373. Thus, 

the PCRA court properly dismissed the petition without an evidentiary hearing.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2019