### J-S80005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. JEMONI LARON GHEE Appellant No. 726 MDA 2016

Appeal from the PCRA Order April 14, 2016 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000065-2013 BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J. MEMORANDUM BY LAZARUS, J.: FILED JANUARY 17, 2017 Jemoni Laron Ghee appeals from the order entered in the Court of Common Pleas of Franklin County, denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541 -9546. After careful review, we affirm on the basis of the opinion authored by the Honorable Angela R. Krom. Ghee and his brother, Jelani, were convicted of aggravated assault stemming from an incident in which the Ghee brothers and the victim, Clarence Green, stopped for a bathroom break on their drive back to Franklin County from a casino in Harrisburg. According to the testimony adduced at trial, the Ghee brothers choked, punched, hit and kicked Green and left him bleeding on the side of the road.

### J-S80005-16

- 2 -

The Ghee brothers were both charged with attempted homicide, aggravated assault, robbery – inflict serious bodily injury, and simple assault. A joint trial commenced on August 12, 2013, and, on August 15, 2013, the jury acquitted the brothers of all charges except aggravated assault. Ghee was sentenced on September 18, 2013, by the Honorable Douglas W. Herman to a term of imprisonment of 120 to 240 months. Ghee appealed his judgment of sentence, which was affirmed by this Court on December 17, 2014. See Commonwealth v. Ghee, 347 MDA 2014 (Pa. Super. filed Dec. 17, 2014). On October 1, 2015, Ghee filed a pro se PCRA petition. The court appointed counsel, who declined to file an amended petition. An evidentiary hearing was held on February 29, 2015, at which time Ghee and his trial counsel, Shane Kope, Esquire, testified. By order dated April 15, 2016, the trial court denied relief. This timely appeal follows, in which Ghee raises the following issues for our review: 1. Did the trial court err in denying Mr. Ghee’s request for a new trial due to ineffective assistance of trial counsel when trial counsel failed to cross-examine and impeach the victim and only eyewitness on his pending criminal charges to show a bias and motive for lying? 2. Did the trial court err in denying Mr. Ghee’s request for a new trial due to ineffective assistance of trial counsel when trial counsel failed to request the jury be instructed on justification/self-defense? Brief of Appellant, at 4.

### J-S80005-16

- 3 -

Our standard and scope of review for 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. Here, both of Ghee’s appellate claims allege the ineffectiveness of his trial counsel, Attorney Kope. There has long been a presumption in the law that counsel acts “within the wide range of reasonable professional assistance.” Harrington v. Richter, 131 S.Ct. 770, 787 (2011). A defendant bears the burden of proving otherwise. Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). The Pennsylvania Supreme Court has set forth three elements which must all be proven in order to demonstrate ineffective assistance of counsel. Commonwealth v. Williams, 863 A.2d 505, 513 (Pa. 2004) (“Failure to satisfy any prong of the test will defeat an ineffectiveness claim.”). Specifically, a defendant must prove that: (1) the underlying claim is of arguable merit; (2) counsel’s performance lacked a reasonable basis; and (3) the ineffective assistance of counsel caused him prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Ghee first asserts that counsel was ineffective for failing to crossexamine the victim, Green, regarding his pending criminal charges. Ghee

### J-S80005-16

- 4 -

claims that cross-examination would have revealed bias on the part of the victim. In its Pa.R.A.P. 1925(a) opinion, the PCRA court concluded that, while Ghee satisfied the first two prongs of the ineffectiveness test, he ultimately failed to demonstrate that, but for Attorney Kope’s failure, the result of his trial would have been different. The court based that conclusion on the overwhelming evidence produced at trial in support of the Commonwealth’s case, which included not only Green’s testimony, but that of ten other witnesses and nearly 80 exhibits. Upon review, we conclude that the PCRA court’s analysis thoroughly and properly disposes of this issue. See PCRA Court Opinion, 4/15/16, at 4-9. Accordingly, Ghee is entitled to no relief. Finally, Ghee asserts that trial counsel was ineffective for failing to request that the jury be instructed as to justification/self-defense. Citing case law holding that “[a] defendant is entitled to an instruction on any recognized defense which has been requested, which has been made an issue in the case, and for which there exists evidence sufficient for a reasonable jury to find in his or her favor,” Commonwealth v. Buksa, 655 A.2d 576, 583 (Pa. Super. 1995), Ghee argues that certain evidence adduced at trial, in which Green was portrayed as the aggressor, supported such a charge. The PCRA court noted that the defense theory of the case was that the Ghee brothers and Green engaged in a scuffle, but that the Ghee brothers left the scene before the most severe of Green’s injuries occurred. “The

### J-S80005-16

- 5 -

‘gist’ of the defense was that the Ghee brother[s] left the scene and Green got hit by a car after that.” PCRA Court Opinion, 4/1 5/16, at 11. Accordingly, the court found that a self-defense instruction would have been wholly at odds with Ghee’s defense, which included testimony from a forensic pathologist who opined that Green suffered from blunt impact injuries most consistent with having been run over by a vehicle. See N.T. Trial, 8/15/13, at 66-95 (testifying, inter alia, that victim’s injuries not consistent with having been punched or kicked, but consistent with having been hit by “some kind of mechanical device or application of force by some kind of powerful object”). As such, the court concluded that counsel had a reasonable basis for not requesting a justification/self-defense charge. See PCRA Court Opinion, 4/15/16, at 9-12. Trial counsel will not be deemed ineffective for pursuing a particular strategy, so long as the course chosen in reasonable. See Commonwealth v. Rivers, 786 A.2d 923 (Pa. 2001). We agree with the PCRA court that counsel had a reasonable basis for declining to request a self-defense instruction and, as such, cannot be deemed ineffective. In sum, we have reviewed the record and the briefs submitted by the parties and conclude that Judge Krom thoroughly and correctly disposes of both issues Ghee raises on appeal. Accordingly, we affirm on the basis of her well-reasoned opinion and instruct the parties to attach a copy in the event of further proceedings in this matter. Order affirmed.

### J-S80005-16

- 6 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/17/2017Circulated 12/20/2016 02:25 PM 

## IN 

## THE COURT OF COMMON PLEAS OF 

## THE 39TH 

## JUDICIAL DISTRICT OF PENNSYLVANIA-FRANKLIN COUNTY BRANCH Commonwealth 

## ofPennsylvania Criminal Action
vs. No. 

### CR 65 

## of2013 

### Jemoni L. 

### Ghee, Judge Angela R. 

### Krom 

### Defendant 

## Statement 

## pursuant to 

## Pa.R.A.P. 1925ja) Before the 

### Court is 

### Defendant's Notice 

## of Appeal filed May 4, 

### 2016. 

### Defendant challenges this 

## Court's Order 

## ofApril 15, 

### 2016,' denying 

### Defendant's petition for 

## post-conviction relief. 

### Both issues raised by 

## Defendant's Concise 

### Statement 

## of Matters Complained

## ofon 

### Appeal, as 

### well as 

### the procedural history 

## of this case, 

### have been thoroughly discussed in 

### the Opinion 

### accompanying the April 15, 

### 2016, 

### Order. This Court is 

### content to 

### rely on its 

### prior writing which has 

### been attached hereto for the 

### Superior 

## Court's use. 

### For the 

### reasons carefully described in 

### the April 15, 

### 2016 Opinion, Defendant is 

### entitled to no 

### relief. His appeal should be 

### denied.

1 

### The Opinion and Order 

### ofCourt is dated April 14, 2016, 

### filed April 15, 2016.IN 

### THE COURT OF 

### COMMON PLEAS OF 

### THE 39TH 

### JUDICIAL DISTRICT OF PENNSYLVANIA 

# - FRANKLIN COUNTY BRANCH Commonwealth 

### ofPennsylvania

v. Jemoni L. Ghee, 

### Defendant

Before 

### Kroin, J. Criminal Action No. CR 65 

### of2013


### Honorable Angela R. 

### Krom, J.



### OPINION AND 

### ORDER OF 

### COURT

APR

EXHIBIT 

# LIN 

### THE COURT OF COMMON PLEAS OF 

### THE 39TH 

### JUDICIAL DISTRICT OF 

### PENNSYLVANIA 

### -FRANKLIN COUNTY BRANCH Commonwealth 

### ofPennsylvania Criminal Action

vs. 

### No. CR 65 

### of2013 Jemoni L. Ghee, 

### Judge Angela R. Krom 

### Defendant 

## OPINION Before the 

### Court for review is Jemoni L. 

### Ghee's (

### "Defendant") 

### request for 

### reliefunder the Post Conviction 

### ReliefAct. 

### For the reasons that follow, 

### Defendant's request for 

### reliefis denied. 

### Background/ Procedural History Defendant and his 

### brother, Jelani Ghee 

### ("Jelani"),I were charged with Criminal Attempt - Criminal Homicide,2 

### Aggravated Assault,3 Robbery- Inflict Serious 

### Bodily Injury,4 and Simple Assaults as a 

### result 

### ofan incident that occurred on 

### November 7, 2012, 

### According to the victim, Clarence Green (

### "Green"), when the three men stopped for a 

### bathroom break on 

### their way back to 

### Franklin County from the 

### Hollywood Casino in 

### Harrisburg, Defendant choked and punched him while Jelani hit and kicked him, then they left him bleeding on the side 

### of the road. N.T. 8/13/13 at 21 -23, 

### Ajoint trial by

### jury was held on August 12, 2013, 

### through August 15, 2013. 

### After hearing testimony from several police officers, 

### medical professionals, the man who found 

### Green on the side 

### ofthe road, a 

### man who lived near the 

### scene 

### ofthe 

### crime, the victim, the 

### victim's stepfather, forensic scientists, and Jelani, the jury found Defendant and Jelani guilty 

### of Aggravated Assault and not 

### guilty 

### ofthe remaining charges. By Opinion dated February 19, 2016, the Superior Court upheld this Court's denial ofPost Conviction Reliefto Co-Defendant, Jelani Ghee. See 1064 MIDA 2015. 2 18 Pa.C.S. § 901(a).
3 18 Pa.C.S. § 2702(a)(I). 4 18 Pa.C.S. § 370I(a)(1)(i).
5 18 Pa.C.S. § 2701(a)(1).On 

### September 18, 

### 2013, Defendant was sentenced to a 

### teen 

### of incarceration in a State Correctional Instihrtion 

### ofnot less than 120 months to not more than 240 months. On 

### September 30, 2013, Shane Kope, 

### Esquire (

### "Kope"), who represented 

### Defendant at trial, filed Post-Sentence Motions on 

### behalf

### ofDefendant challenging the weight 

### ofthe 

### evidence and 

### seeking reconsideration and 

### modification 

### ofthe sentence. By 

### Opinion and 

### Order dated January 23, 2014, the Honorable 

### Douglas W. 

### Herman denied Defendant's Post-Sentence Motions. On 

### February 20, 2014, 

### Defendant filed a 

### Notice 

### ofAppeal. Thereafter, on 

### December 17, 2014, the Superior Court affirmed 

### Defendant'sjudgment of sentence. On October 1, 

### 2015, Defendant filed a 

### pro se 

### Post Conviction 

### ReliefAct (

### "PCRA ") Petition. Attorney Kristen Nicklas, appointed by the Court to 

### represent Defendant in connection with his PCRA proceedings, notified this Court on 

### November 25, 

### 2015, that an 

### Amended PCRA 

### Petition would not be filed. The 

### Commonwealth filed an 

### Answer to the 

### Defendant's

### pro se PCRA Petition on 

### December 14, 2015. Thereafter, an 

### evidentiary hearing was held on February 29, 2015. 

### Defendant and Kope testified at the hearing. Written 

### argument has been timely filed by both 

### Defendant and the 

### Commonwealth. This matter is ready for 

### decision, Discussion The 

### PCRA was enacted to

### provide individuals who are 

### convicted 

### ofcrimes for which they are 

### innocent, or 

### those serving illegal sentences, with a 

### means to 

### obtain collateral relief. See 42 Pa.C.S. § 9542. To be entitled to relief, the petitioner must first 

### demonstrate he was 

### convicted 

### ofa 

### crime under the law 

### ofPennsylvania, and 

### that he is 

### currently serving a sentence or waiting to do so. See 42 Pa.C.S. §9543(a)(1). Second, the 

### petitioner must prove, by a preponderance 

### ofthe 

### evidence, that lus 

### conviction or sentence resulted 

### from one or more 

### ofthe enumerated statutory factors. See 42 Pa.C.S. §9543(a)(2). Third, a 

### petitioner must demonstrate the issues raised 

### under the Act have 

### not been previously 

### litigated or 

### waived, and finally, that the 2failure to litigate such issues could not have resulted from a rational, 

### strategic, or tactical decision by counsel, See id. at §9543(a)(1), (3), (4). The 

### ineffective assistance 

### ofcounsel which so 

### undermined the truth-determining process that "no reliable 

### adjudication 

### ofguilt or innocence could have taken 

### place" is cognizable under the Act. See 42 

### Pa,C.S. §9543(a)(2)(ii). The law is clear that counsel is 

### presumed effective and the defendant bears the burden 

### ofproving otherwise, accomplished by 

### satisfying a three-prong performance and 

### prejudice test. See Commonwealth v. 

### Martin, 5 

### A.3d 177, 183 (Pa. 2010); Commonwealth v. 

### Pierce, 786 A.2d 203, 213 (Pa. 2001). 

### First, the 

### petitioner must show the underlying 

### substantive claim has arguable merit. See id. Next, a 

### petitioner must demonstrate that counsel did not have any reasonable basis for his acts or 

### omissions designed to effectuate the 

### client's interest. See id. 

### Finally, a petitioner must demonstrate that actual prejudice resulted from 

### counsel's inadequate performance. See id. 

### Prejudice is proven where a 

### defendant shows, ".`there is a 

### reasonable 

### probability that, but for 

### counsel's unprofessional errors, the result 

### ofthe 

### proceeding would have 

### been different." See Commonwealth v. 

### Johnson, 966 A.2d 523, 533 (Pa. 2009. "A 

### reasonable 

### probability is a probability that is 

### sufficient to 

### undermine confidence in the outcome 

### ofthe 

### proceeding." Commonwealth v. 

### Muir, 2015 WL 6507982, at *3 (Pa.Super. 2015) 

### quoting Commonwealth v. Cam Ly, 980 A.2d 61, 73 (Pa. 

### 2009) (internal quotation marks and citations omitted). 

### If the 

### defendant fails to satisfy any one 

### ofthe three 

### prongs 

### ofthe test, the claim 

### of ineffective assistance must be denied, See Pierce, 786 A.2d at 221 -22. 

### The inquiry echoes that set forth by the United States Supreme Court, 

### requiring both a 

### showing that 

### counsel's performance was deficient, and 

### that the deficiency was prejudicial. See 

### Strickland v. Washington, 466 U.S. 668, 687 -91 (1984). 

### Pursuant to the these 

### standards, the Court will analyze 

### Defendant's claims regarding 

### Kope's representation.
3In his

### pro se 

### PCRA Petition, Defendant alleges that Kope was ineffective for: I) 

### failing
to cross-examine Green regarding 

### Green's pending 

### criminal charges in 

### Franklin County; and 2) failing to 

### request a

### jury instruction on

### justification/self - defense. PCRA ¶ 6C. Each 

### allegation will be discussed in turn.



### Failure to 

### cross

### -examine Green 

### regardingpending criminal charges: In 

### support 

### ofhis 

### argument that Kope was 

### ineffective for failing to cross-examine Green

as to his pending 

### criminal charges, Defendant cites to the 

### Pennsylvania Supreme 

### Court's decisions in 

### Commonwealth v. Evans, 512 A.2d 626 (Pa. 1986) and 

### Commonwealth v. Hill, 566 A.2d 252 (Pa. 1989). 

### Both Evans and Hill make it 

### clear that the 

### defense must be permitted to

cross-examine a 

### Commonwealth witness regarding 

### outstanding criminal charges to explore 

### possible bias in 

### favor 

### ofthe prosecution, Even 

### if the 

### prosecutor has made no promises, either on the 

### present case or on other 

### pending criminal matters, the witness may 

### hope for 

### favorable treatment from the 

### prosecutor 

### ifthe witness presently testifies in a way that is helpful to the prosecution. And 

### ifthat 

### possibility exists, the

### jury should 

### know about it. Hill, 566 

### A.2d 

### at 253. However, both 

### Evans and Hill are 

### distinguishable from the 

### case at bar in that they arise from a different 

### procedural posture than the present case. In Evans, the 

### Supreme Court determined that the trial 

### court erred in refusing to permit cross

### -examination of the 

### prosecution's chief witness 

### about whether he had 

### been promised or 

### expected leniency with respect to pending charges. 512 A.2d 626. 

### Similarly in Hill, the Supreme Court found that it was 

### error for the trial court to forbid cross 

### -examination 

### ofthe victim/witness as to his 

### guilty plea entered on an unrelated matter, even 

### though the 

### victim/witness had not yet been 

### sentenced. 566 A.2d at 253.

4In the case at bar, the trial court did not refuse to 

### permit cross-examination 

### ofGreen; rather, counsel, as a matter 

### of strategy (discussed further below) elected not to do so. Interestingly, 

### Defendant's brother and co-

### defendant, Jelani, raised this very issue in his 

### PCRA Petition. In 

### support 

### ofhis 

### claims, Jelani 

### relied on 

### Commonwealth v. Murphy, 591 A.2d 278 (Pa. 1991) and Commonwealth v. Davis, 652 

### A2d 885 (Pa. Super. 1995). 

### Both the Murphy and Davis Courts held that the 

### allegation that counsel was 

### ineffective for failing to 

### question a witness regarding 

### possible bias as the result 

### ofpending criminal charges was meritorious and it
was further held 

### that there was no 

### reasonable basis for 

### counsel's failure to do so. In both Murphy and Davis, the 

### defendants were found to have suffered 

### prejudice as a 

### result of their trial 

### counsel's failure to 

### cross-examine the 

### Commonwealth's witness regarding the bias resulting 

### from pending criminal charges or

### juvenile probationary status. However, both 

### Murphy and Davis are 

### distinguishable from 

### Defendant's case in significant ways. In 

### Murphy, the 

### defendant was 

### charged in 

### connection with a 

### shooting death. 

### Two child 

### witnesses gave vague descriptions 

### ofthe 

### gunman when they were interviewed a short time after the shooting; however, the children were re-interviewed four years later and identified the defendant as the 

### shooter. At the time the children testified at trial, one 

### ofthem was on 

### juvenile probation and the other had 

### just completed

### juvenile probation. 591 A.2d at 278. The child on

### juvenile probation was the only eyewitness to the 

### crime, making her testimony crucial to the case. Id. at 280. 

### Defense counsel never cross

### -examined the child 

### regarding her

### juvenile probationary status in an 

### attempt to show bias, whether based on a formal agreement or her subjective 

### beliefthat she would receive favorable treatment. Id. The

### jury ultimately found the 

### defendant guilty 

### offirst 

### degree murder. Id. at 278. In Davis, 

### the

### jury convicted the defendant 

### ofattempted rape after hearing both his and the 

### victim's version 

### ofevents on the day in question.

5 652 

### A.2d 885. As no 

### other witnessescorroborated the 

### victim's testimony, the victim was clearly a 

### critical Commonwealth witness. Id. The Court 

### reasoned that because the 

### jury had 

### acquitted the 

### defendant 

### ofall but one charge, the

### jury did not find the 

### victim's testimony to be 

### "wholly plausible" and 

### further found that because evidence 

### ofthe 

### victim's potential bias 

### "may well have 

### persuaded the

### jury to 

### completely reject the 

### victim's testimony and 

### acquit" the 

### defendant, 

### counsel's failure to inquire into possible bias was not 

### harmless error. 652 A.2d at 889. In the 

### present case, 

### Defendant testified that, at the time 

### ofthe trial, Green liad pending criminal charges in the nature 

### ofresisting arrest. N.T. 2/29/16 at 8, 9. He 

### further testified that he informed Kope that 

### Green had pending criminal charges on at least two 

### occasions. Icl. at 9. Based on the 

### guidance 

### of Hill, Evans, Murphy, and Davis, this Court must find that 

### Defendant's allegation 

### of ineffective assistance 

### ofcounsel for failure to cross examine Green regarding his 

### pending criminal charge has merit. Defendant has 

### met his 

### burden with respect to the first prong 

### ofthe 

### three prong test. However, the inquiry does not end there. 

### According to 

### Defendant, Kope did not ask the victim about his 

### pending criminal charges because he did not 

### want to be too hard on the victim in front 

### ofthejury.6 N.T. 2/29/16 at 10. On

cross

### -examination, Defendant conceded that he was aware that 

### Green had 

### reached a plea agreement with an agreed-to 

### sentence as to his pending charges 

### prior to 

### Defendant's trial. N.T. 2/29/16 at 11. Kope agreed that he did not cross-examine Green at trial 

### regarding his then- pending criminal charges. N.T. 2/29/16 at 13. Counsel 

### believed that he did look into 

### Green's pending charges, but also 

### believed that Green had already 

### entered a plea and may have been sentenced. Id. at 14. He fitrther testified that he 

### didn't find it 

### necessary to cross-examine Green

as to the charges to 

### show bias 

### because there would not have been any. Id. Kope also agreed

6 The record is clear that neither Attorney Kope, nor Jelani's attorney questioned the victim regarding his pending criminal charges. Rather, Green was cross-examined at length regarding prior inconsistent statements. 6that the 

### Commonwealth's evidence at trial consisted 

### ofmore than

### just Green's testimony; the 

### Commonwealth 

### had ample evidence to 

### support its case. N.T. 

### 2/29/16 at 16. 

### The record reveals that Counsel elected to cross -examine Green at 

### length about other issues. From the 

### evidence presented at the PCRA hearing, Kope was 

### aware 

### of Green's pending charges and elected not to cross-examine him on that issue, While Kope did 

### not wish to be too hard on Green in front 

### ofthe

### jury, he clearly 

### misunderstood the 

### implications 

### ofGreen's pending charges 

# - even 

### ifa plea 

### agreement had been negotiated and entered and Green was simply awaiting sentence. 

### Kope's assertion that that he did not cross

### -examine Green regarding possible bias 

### "because there would not 

### have been ally" 

### demonstrates 

### Kope's lack 

### offamiliarity with the guidance provided by cases like 

### Evans and Hill. 

### Accordingly, this 

### Court 

### must find that despite 

### Kope's strategic reasons for failing to cross-examine Green 

### regarding 

### pending charges, his
reasons were not 

### reasonable. Defendant has 

### established the second 

### prong 

### ofthe three prong test. Despite this 

### Court's finding that 

### Kope's reasons for failing to 

### cross-examine Green were not reasonable, this Court cannot find that Defendant suffered prejudice as a result. This finding is based on a careful 

### review 

### ofthe record and the 

### overwhelming evidence produced at trial in 

### support 

### ofthe 

### Commonwealth's case. 

### Further, the Courtrelies on 

### the 

### discussion 

### ofthe evidence by the Honorable (now) Senior 

### Judge Douglas W, Herman in his 

### Opinion and Order 

### ofCourt 

### of January 23, 2014, 

### disposing 

### of Defendant's Post-Sentence Motion.? Green 

### testified as to the incident which began on 

### November 7, 

### 2012, with Green and the Ghee brothers traveling from Franklin County to the Hollywood Casino in 

### Dauphin County. Green testified at 

### length regarding an 

### assault at the hands 

### ofDefendant and Jelani which left hint with considerable injuries. N.T. 8/13/13 at 4 -81. In addition to 

### Green's testimony thejury heard from at least ten 

### other witnesses and viewed nearly 80 exhibits, The

### jury considered surveillance
This matter was reassigned to the undersigned upon the retirement ofthe Honorable Douglas W. Herman. 7

### footage from 

### Hollywood Casino, which placed Defendant, 

### Jelani, and 

### Green together on the 

### night ofthe assault. Comm. Ex. 68. 

### The Commonwealth offered the 

### testimony 

### ofTroopers William Dubbs and Michael Dick regarding the physical 

### evidence found at the crime scene. N.T. 8/12/13 at 33; N.T. 8/14/13 at 129. Thejury heard from the 

### passing motorist who found Green 

### staggering on the side 

### ofthe road, 

### wearing nothing but his 

### boxer shorts and a sock, and bleeding from his nose and mouth. N.T. 8/12/13 at 15 -28. The

### jury viewed 

### photographs 

### ofthe area 

### where the 

### victim was found which depicted blood and clothing. Comm. Exs. 62-67, 69-72. The 

### jury heard from the trauma physician who treated Green at York 

### Hospital that Green suffered from abrasions, lacerations, a 

### fractured nasal bone, a fractured hyoid bone, fractured ribs, and a

severe liver injury. N.T. 8/13/13 at 90-91. The trauma 

### physician explained that the grade-five liver injury was caused by blunt force trauma rather than a 

### penetrating trauma, and the hyoid 

### bone (a small bone in the neck) 

### fracture was the result 

### ofbeing 

### strangled or struck. N.T. 8/13/13
at 94-95. The

### jury considered photos 

### ofGreen's injuries. Comm. Exs. 1 -5, 54-57. 

### Pennsylvania State Police Troopers Ronald 

### Taylor and 

### Michael Dick testified about finding trash bags 

### containing 

### Defendant's and 

### Jelani's clothing worn on the day 

### ofthe assault in the 

### dumpster near the 

### brothers' townhome. N.T. 8/13/13 at 125, 162; N.T. 8/15/13 at 38-39. The 

### Commonwealth called a 

### forensic DNA scientist employed by the 

### Pennsylvania State Police 

### DNA Laboratory who 

### testified that 

### Green's blood was 

### identified on 

### Jelani's sweatshirt. N.T. 8/14/13 at 123. Further, 

### Pennsylvania State Police Corporal Paul 

### McMullen testified regarding the 

### execution 

### of search warrants for 

### both Defendant's and 

### Jelani's person at the time 

### of their arrest and advised the

### jury that Jelani had injuries consistent with being involved in an assault. N.T. 8/14/13 at 53 -56. The corporal 

### further testified that 

### Defendant had 

### injuries to his right hand and scratches on his chest and 

### shoulder area. N.T. 8/14/13 at 55-56.

8Jelani testified that he fought with Green on the night 

### ofNovember 7, 2012. N.T. 8/15/13 at 32-36. In his 

### testimony, Jelani also implicated 

### Defendant in the 

### altercation with Green. Id. In 

### Jelani's appeal to the 

### Superior Court following the denial 

### ofpost-conviction 

### reliefby this Court, the 

### Superior Court agreed that Jelani had not 

### satisfied the 

### prejudice prong 

### ofthe ineffectiveness 

### test based on the 

### overwhelming evidence produced against him at trial. 8 Commonwealth v. Jelani Q. Ghee, 1064 MDA 2015 at 8 (Pa. Super. Feb. 19, 2016). The 

### Court cannot find that 

### Defendant was prejudiced by 

### Attorney 

### Kope's failure to
cross-examine Green 

### regarding his 

### pending criminal charges as 

### evidence from numerous sources corroborated 

### Green's testimony. See Commonwealth y. Gentile, 640 A.2d 1309, 1314 (Pa. Super. 1994). 

### Considering the 

### overwhelming evidence against 

### Defendant independent 

### of Green's testimony at trial, 

### Defendant has not 

### demonstrated that, but for 

### Kope's failure, the result 

### of the 

### proceedings would have been different. Therefore, 

### Defendant is not entitled to 

### reliefon the basis that Kope was 

### ineffective for failing to cross-examine Green 

### regarding his 

### pending charges.



### Failure to request

### jnty instruction on 

### justification 

### /self -defense 

### Defendant next claims that Kope was ineffective 

### for failing 

### to request that the

### jury be instructed on

### justification/self- defense. This Court 

### disagrees. "The use 

### of force upon or toward another person is

### justifiable when the actor believes that such force is 

### immediately necessary for the 

### purpose 

### of protecting 

### himselfagainst the use 

### of unlawful force by such 

### other person on the present occasion." 18 

### Pa.C.S.A. §505(a). The law is

s The Superior Court further held, "Accordingly, we find that because [Jelani] did not call trial counsel as a witness at the PCRA hearing, he failed to establish that trial counsel lacked a reasonable basis for his actions." Commonwealth v. Jelani Q. Ghee, 1064 MDA 2015 at 1 1. 9well-settled that a 

### court must instruct the

### jury on 

### self -defense when requested 

### ifthe

### jury would have a possible 

### evidentiary basis for 

### finding 

### self -defense, Commonwealth y, Brown, 421 A,2d 660, 662 (Pa. 1980). 

### Evidence in 

### support 

### of a claim 

### of self -defense can come from 

### whatever

source. Id. In 

### reviewing the record to determine 

### if a 

### possible evidentiary basis exists for a

### jury finding 

### self -defense, the 

### evidence must be viewed 

### "in a 

### posture most favorable to 

### [appellee]." Commonwealth v. Butler, 533 A.2d 992, 993 (Pa. 1987). Three conditions must be present to successfully raise 

### self -defense at trial: [I]t must be 

### shown that (a) the [actor] was free from fault in 

### provoking or continuing the 

### difficulty which resulted in the [injury]; (b) that the [actor] must have 

### reasonably believed that he was in imminent 

### danger 

### ofdeath or great 

### bodily harm, and that there was a 

### necessity to use such force to save 

### himselftherefrom; and (c) the [actor] did not violate any duty to retreat or to avoid the danger. Butler, 533 A.2d at 993 

### (citations omitted). 

### If

### self-defense is raised, it becomes the 

### Commonwealth's burden to 

### prove, beyond a 

### reasonable doubt, that the defendant's act was not 

### justifiable self -defense, Commonwealth v. McClendon, 874 

### A.2d 1223 (Pa. Super. 2005). The 

### Commonwealth may 

### meet its 

### burden by establishing: 1) the accused did not 

### reasonably believe that he was in 

### danger 

### ofdeath or 

### serious bodily injury; 

### or 2) the accused provoked or continued the use 

### offorce; or 3) the accused had a 

### duty to 

### retreat and the retreat was 

### possible with complete safety. McClendon, 874 

### A.2d at 1230. Review 

### of the 

### record indicates that Jelani testified as to 

### having engaged in a physical altercation with Green 

### after Green struck Jelani in the head with what felt like a punch while Jelani was driving. N.T. 8/15/13 at 30, Jelani explained that 

### Green had become agitated because he 

### thought Defendant had 

### put a pill in 

### Green's beer. N.T. 8/15/13 at 29, 

### Jelani testified, "I parked and we all

### jumped out 

### ofthe car and he came 

### running around the back 

### ofthe car at me with his hands up so 

### I hit him 

### twice." N.T. 8/15/13 at 31 

### (emphasis added). After that, Jelani and Green started 

### wrestling. N.T. 8/15/13 at 32. 

### According to 

### Jelani's testimony, Defendant

ruattempted to break up the fight; 

### however, when he separated Green and Jelani, Green punched 

### Defendant in the ear, 

### Defendant and Green 

### "began tussling in the bushes and [Green] picked [Defendant] and 

### slanuned 

### hint" N.T. 8/15/13 at 32, To get 

### Green 

### off

### of Defendant, Jelani punched him three more 

### time in the face. Id. Jelani then got Green by the neck in a choke hold, trying to keep him 

### offDefendant. N.T. 8/15/13 at 33 -34. The 

### brothers then ran for the car and left Green on the side 

### ofthe road. N.T. 8/15/13 at 34. 

### Defendant did not testify at trial. At the 

### evidentiary hearing, Defendant did not offer 

### testimony as to this claim. Kope did not recall 

### discussing a 

### self -defense strategy with Defendant. N.T. 2/29/16 at 14. The defense strategy at trial was that 

### Defendant had not injured Green in the 

### manner in which he was actually injured. Id. "I think they had 

### admitted to getting into some scuffle with [Green] on the side 

### of a road, after [Green] had 

### assaulted [

### Jelani], but that they had left the 

### scene without the amount 

### of injury that [Green] 

### had suffered. 

### [...] So, I 

### don't believe 

### self -defense was ever 

### part 

### ofthe trial 

### strategy," N.T. 

### 2/29/16 14 -15. 

### However, Kope did recall 

### Jelani's testimony that Green had attacked him first in the car. N.T. 

### 2/29/16 at 15. On cross

### -examination, Kope agreed that the defense theory 

### of the case was that the Ghee brothers and Green got into a 

### "scuffle," but that 

### Defendant (and his 

### brother) left 

### before the

severe injuries to Green occurred. N.T. 2/29/16 at 17. The 

### "gist" 

### ofthe 

### defense was that the Ghee brother left the 

### scene and 

### Green got hit by a car after that. N.T. 

### 2/29/16 at 17-18. In fact, the 

### defense offered the 

### testimony 

### of an 

### expert witness which suggested that 

### Green's injuries

were 

### consistent with 

### being struck by a vehicle. N.T. 

### 2/29/16 at 17. A review 

### ofthe 

### record corroborates 

### Kope's recollection 

### of the 

### defense strategy at trial. Dr. Jonathan Arden, a 

### physician and forensic pathologist testified on 

### behalf 

### ofthe defense. Dr. Arden opined, after 

### review of the 

### evidence including 

### Green's medical records from York Hospital, photographs 

### ofGreen, and 

### Green's imaging 

### studies, that Green suffered blunt impact
11injuries. N.T. 8/15/13 at 67-68. He 

### further testified, including ample

### justification for his conclusions, that 

### Green's injuries were most 

### constituent with being run 

### over by a vehicle. N.T. 8/15/13 at 86, 94. A defense 

### ofjustification/self-defense would have required 

### that Defendant essentially admit that he caused 

### the injuries suffered by Green, but 

### assert that his 

### actions were

### justified based on his fear 

### ofinjury to 

### himself (or perhaps to his 

### brother 

## - but he has not 

### suggested a defense 

### ofothers 

### instruction should have been given). Such a 

### defense would have been 

### wholly inconsistent with the 

### expert testimony 

### ofDr. 

### Arden as to his 

### opinion 

### ofthe source 

### ofthe blunt impact trauma suffered by Green. 

### Neither Defendant nor 

### Jelani admitted running Green over with a motor vehicle. 

### Accordingly, Kope had a 

### reasonable basis for his failure to 

### request that the 

### jury be instructed on

### justification/self-defense. An 

### appropriate Order 

### ofCourt follows.

12

### IN 

### THE COURT OF COMMON PLEAS OF 

### THE 39Tí' 

### JUDICIAL DISTRICT OF 

### PENNSYLVANIA-FRANKLIN COUNTY BRANCH Commonwealth 

### ofPennsylvania Criminal Action

vs. No. 

### CR 65 

### of2013 Jemoni Q. Ghee, Judge Angela R. 

### Krom 

### Defendant 

## ORDER OF 

## COURT NOW 

### THIS I `I.

# day ofApril, 2016, upon 

### review and 

### consideration 

### ofDefendant's PCRA Petition, the 

### Commonwealth's response, the evidence 

### of record, the written arguments 

### of counsel, and the law; 

### IT IS 

### HEREBY ORDERED that Defendant's PCRA Petition is 

### DENIED. IT IS 

### FURTHER ORDERED that pursuant to 

### Pennsylvania Rule 

### ofCriminal Procedure 908(E), 

### Defendant, Jemoni Ghee, is hereby advised: (1) You have a 

### right to appeal the decision 

### ofthis 

### Court within thirty (30) days 

### ofthe date 

### of this order. (2) You have the right to 

### assistance 

### ofcounsel in 

### preparation 

### ofthe appeal. (3) If you 

### cannot afford to pay an attorney to 

### represent you in an appeal, you have the right to a 

### court-appointed attorney and to be 

### excused from the cost 

### offiling and 

### perfecting 

### the appeal. 

### Pursuant to the 

### requirements 

### ofPa.

### R.Gim,P. 114 (B)(1), (2) 

### and (C)(1), (2), the 

### Clerk 

### shallpromptly serve this 

### Order or court notice on each 

### parry's attorney, 

### or the 

### parry 

### if unrepresented; 

### and shallpromptly make docket 

### entries 

### containing the 

### date 

### ofreceipt in the 

### Clerk's office 

### ofthe 

### Order or court notice; the 

### date 

### appearing on the 

### Order or court notice; 

### and the date 

### and manner 

### ofservice 

### ofthe 

### Order or court notice.

ADA Laura J. 

### Kerstetter, Esq. Kristen 

### Nicklas, Esq., Counsel for 

### Defendant Jemoni Ghee, 

### Defendant By the Court,



### EXHIBIT 1