J-S33045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ERIC ARMS

Appellant No. 2958 EDA 2014

Appeal from the PCRA Order October 14, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006895-2008,

MC-51-0015843-2008

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

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 12, 2015

Eric Arms appeals from the order of the Court of Common Pleas of 

Philadelphia County dismissing his petition filed under the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we 

affirm.

The PCRA court has set forth the relevant facts of this matter as 

follows:

[Arms’] convictions arose out of an incident that occurred on 

March 20, 2008. On that date, Maurice Shaw drove into a gas 

station located at 57th and Walnut Streets with his cousin, 

Ronnel James. [Arms], who was at the gas station at the time, 

saw Shaw as Shaw walked up to him. Shaw told [Arms] not to 

go anywhere and then reached under his shirt. [Arms], who had 

problems with Shaw in the past and was aware that Shaw was 

known to do “things” like that thereby implying that Shaw was 

reaching into his shirt for a weapon, grabbed a knife from his car 

and fatally stabbed Shaw four times; twice in the back and twice 

in the chest. [Arms] thereafter surrendered to police.
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PCRA Court Opinion, 1/16/15, at 2.

On November 3, 2009, Arms was convicted of third-degree murder1

and possessing instruments of crime,2following a bench trial before Judge 

Carolyn E. Temin. On March 2, 2010, Judge Temin imposed an aggregate 

sentence of eighteen to forty-five years’ incarceration. Arms then filed a 

notice of appeal to this Court and on February 24, 2011, we issued a 

memorandum and order affirming the judgment of sentence. 

Commonwealth v. Arms, 24 A.3d 463 (Pa. Super. 2011) (unpublished 

memorandum). The Pennsylvania Supreme Court denied allowance of 

appeal on September 14, 2011. Commonwealth v. Arms, 29 A.3d 370 

(Pa. 2011) (unpublished memorandum).

Arms filed a pro se PCRA petition on June 26, 2012. Counsel was 

appointed and, on October 3, 2013, filed an amended petition. A hearing 

was held on September 12, 2014, and on October 14, 2014, the PCRA court 

entered an order dismissing the petition without an evidentiary hearing.

On October 14, 2014, Arms filed a timely notice of appeal to this 

Court, in which he raises the following issue:

The PCRA court erred in determining that trial counsel was not 

ineffective for failing to buttress [Arms’] self-defense theory by 

presenting evidence of decedent’s arrests for violent crimes and 

for failing to present evidence of decedent’s violent character.

____________________________________________

1 18 Pa.C.S. § 2502(c).

2 18 Pa.C.S. § 907(a).
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Appellant’s Brief, at 8.

Our standard of review of an order dismissing a PCRA petition is as 

follows:

[I]n reviewing the propriety of an order granting or denying 

PCRA relief, we are limited to determining whether the evidence 

of record supports the determination of the PCRA court, and 

whether the ruling is free of legal error. Great deference is 

granted to the findings of the post-conviction court, and these 

findings will not be disturbed unless they have no support in the 

certified record.

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002).

Arms argues that his trial counsel failed to buttress his self-defense 

theory by not presenting evidence of Shaw’s arrests for violent crimes and 

for failing to present evidence of Shaw’s violent character. Arms claims that 

had trial counsel presented more evidence of Shaw’s violent tendencies, he 

could have proven that he was in reasonable fear of death or great bodily 

harm, which could have led to a not guilty verdict. Therefore, Arms believes 

his trial counsel was ineffective.

Arms’ self-defense claim relies on well-settled law that proscribes the 

following conditions:

(1) The slayer must have been free from fault in provoking or 

continuing the difficulty which resulted in the killing;

(2) The slayer must have reasonably believed that he was in 

imminent danger of death or great bodily harm, and that there 

was a necessity to kill in order to save himself therefrom;

(3) The slayer must not have violated any duty to retreat or 

avoid the danger.
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Commonwealth v. Simmons, 475 A.2d 1310, 1313 (Pa. 1984) (citations 

omitted).

In a claim for ineffectiveness of counsel, the law presumes that trial 

counsel was effective. Commonwealth v. Rios, 920 A.2d 790, 805 (Pa. 

2007). “In order to obtain relief under the PCRA premised upon a claim that 

counsel was ineffective, a petitioner must establish beyond a preponderance 

of the evidence that counsel’s ineffectiveness so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could 

have taken place.” Payne, 794 A.2d at 905 (quotation marks omitted) 

(citing 42 Pa.C.S.A. § 9543 (a)(2)(ii)).

In order to succeed on an ineffectiveness of counsel claim, “[a]ppellant 

must demonstrate that: (1) the claim is of arguable merit; (2) counsel had 

no reasonable strategic basis for his or her action or inaction; and (3) 

counsel’s ineffectiveness prejudiced him.” Commonwealth v. Michaud, 70 

A.3d 862, 867 (Pa. Super. 2013). “Counsel cannot be deemed ineffective 

for failing to pursue a meritless claim.” Payne, 794 A.2d at 906. “An 

assessment of this prong requires appellant to establish each Pierce prong 

with respect to trial counsel’s performance; failure to establish any one of 

the prongs concerning trial counsel will defeat the entire claim.” 

Commonwealth v. Williams, 863 A.2d 505, 513 n.9 (Pa. 2004) (citations 

omitted).

Arms argues that counsel should have introduced Shaw’s criminal 

record in order to prove Shaw’s violent character. Whether this claim has 
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merit is predicated on whether Shaw’s criminal record was admissible. In 

order for the deceased victim’s criminal record to be admissible, the 

defendant must use it either: 

(1) to corroborate his alleged knowledge of the victim’s 

quarrelsome and violent character to show that the defendant 

reasonably believed that his life was in danger; or (2) to prove 

the allegedly violent propensities of the victim to show that the 

victim was in fact the aggressor.”

Commonwealth v. Amos, 284 A.2d 748, 751 (Pa. 1971). This Court has 

held that, “where offered merely to prove the allegedly violent propensities 

of the victim to show that the victim was in fact the aggressor, mere arrests, 

without convictions, are inadmissible.” Commonwealth v. Ignatavich, 

482 A.2d 1044, 1047 (Pa. Super. 1984) (quotation marks and citations 

omitted).

Here, while Shaw had been arrested for multiple violent crimes, he had 

only been convicted of the crimes of disorderly conduct and drug possession. 

Only these two convictions, and not the full arrest record, would be 

admissible under Ignatavich. However, since neither of these two 

convictions demonstrate a violent propensity in Shaw, his criminal record 

would be inadmissible. Accordingly, this claim is meritless.

Arms also argues that trial counsel should have called witnesses from 

the neighborhood in order to testify to Shaw’s violent character to bolster 

Arms’ self-defense claim. To prevail on a claim of ineffective assistance of 

counsel for failing to call witnesses, Arms must show:
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(1) the existence and availability of the witness; (2) counsel’s 

awareness of, or duty to know of, the witness; (3) the 

willingness and ability of the witness to cooperate and appear on 

behalf of the defendant; and (4) the necessity of the proposed 

testimony in order to avoid prejudice. 

Commonwealth v. Pierce, 786 A.2d 203, 214 (Pa. 2001). Here, Arms has 

failed to produce a single witness who could testify to Shaw’s purported 

violent tendencies. Without proving the existence and availability of the 

witness, Arms’ claim lacks merit.

Regarding trial counsel’s alleged failure to call Arms to testify to 

Shaw’s violent character, we will “conclude that counsel's chosen strategy 

lacked a reasonable basis only if Appellant proves that an alternative not 

chosen offered a potential for success substantially greater than the course 

actually pursued." Commonwealth v. Davido, 106 A.3d 611, 621 (Pa. 

2014) (quotation marks and citations omitted).

Here, trial counsel testified that he believed that if Arms testified, the 

district attorney, on cross-examination, would have made Arms look like a 

very aggressive person. N.T. PCRA Hearing, 9/12/14, at 26-27. This was a 

reasonable basis for trial counsel to decide not to have Arms testify, as 

evidenced by the fact that Arms punched trial counsel in the head after the 

verdict. N.T. Trial, 11/3/09, at 136. Accordingly, trial counsel had 

reasonable basis not to have Arms testify and Arms’ argument fails here as 

well.

Moreover, trial counsel’s failure to introduce certain character evidence 

about Shaw, did not prejudice Arms. To establish prejudice, Arms must 
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show that “there is a reasonable probability that the outcome of the 

proceedings would have been different but for counsel’s action or inaction. 

Davido, 106 A.3d at 621 (citations omitted).

Here, trial counsel presented evidence that Shaw was a violent person. 

Counsel introduced evidence, through Detective Mangold, that Arms and 

Shaw “had problems in the past.” N.T. Trial, 11/3/09, at 104. Counsel also 

introduced evidence that Shaw had a reputation for carrying a weapon. Id.

at 95, 106, 108. Finally, counsel presented evidence that Shaw had shot at 

Arms the night before the stabbing. Id. at 110. The trial court heard 

considerable evidence regarding Shaw’s violent character and therefore, 

Arms was not prejudiced by his trial counsel’s failure to introduce certain 

character evidence about Shaw’s violent nature.

Arms has failed to establish that counsel’s ineffectiveness so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place. Payne, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/12/2015