“Once a defendant . . . has himself introduced evidence of his prior crimes, the prosecution has a limited right to introduce evidence of prior convictions in rebuttal.”
How later courts described this case
- “Once a defendant . . . has himself introduced evidence of his prior crimes, the prosecution has a limited right to introduce evidence of prior convictions in rebuttal.”
Written by the judges who cited it.
The opinion
J-S07025-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDDIE WILLIAMS :
:
Appellant : No. 1731 MDA 2018
Appeal from the PCRA Order Entered September 19, 2018
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001948-2014
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 20, 2019
Appellant, Eddie Williams, appeals from the denial of his request for
relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541- 9546. Appellant argues that the PCRA court erred in denying his PCRA
petition which raised several claims of ineffective assistance of counsel. We
affirm.
Appellant was convicted of first-degree murder and other crimes related
to an incident that occurred on March 10, 2014. Specifically, Appellant was
convicted following a seven-day jury trial for the robbery and shooting of two
individuals, Marcus Ortiz (who was killed) and Keith Crawford (who, although
seriously injured, survived). Following conviction, Appellant was sentenced to
life in prison. This Court affirmed the judgment of sentence.
Commonwealth v. Williams, 2177 MDA 2015 (Pa. Super. 2016)
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S07025-19
(unpublished memorandum). Appellant filed a timely pro se PCRA petition
alleging numerous claims of ineffective assistance of trial counsel. The PCRA
court assigned counsel, who filed an amended petition which also alleged
various claims of ineffective assistance of counsel. Following a hearing at
which Appellant and his trial counsel testified, the PCRA court denied
Appellant’s petition. This timely appealed followed.
On appeal, Appellant raises the following issues1:
1. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel asked Appellant, on the stand, whether he
had ever been arrested for any other crimes?
2.. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel failed to file a [m]otion to [s]uppress the
evidence that was obtained from an illegal search of Appellant’s
vehicle and the illegal use of Appellant’s legal mail
correspondence[]?
3. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel failed to call or interview Matthew Snevely as
a witness at Appellant’s trial?
4. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel was ineffective when he deliberately
informed the jury that Appellant’s [c]o-[d]efendant pled guilty,
without filing a [m]otion in limine, thus allowing the jury to hear
that he pled guilty to conspiracy?
5. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
____________________________________________
1 We have re-ordered the issues for ease of disposition.
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J-S07025-19
that [t]rial [c]ounsel was ineffective for stipulating to the recanted
report and testimony of Office Edward A. Kozicki?
6. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel failed to object to the Commonwealth’s
witness, Josephine Wolfe, and her identification of Appellant?
7. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel failed to object to inadmissible evidence,
such as the [c]o-[d]efendant, Rick Cannon’s, bloody clothes,
shoes, and [gunshot residue] report?
8. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel failed to object to the use of the
Commonwealth’s audio recording of [c]o-[d]efendant [Akeita]
Harden’s non-redacted statement to the jury?
9. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel failed to properly cross examine Keith
Crawford[,] Chief Leahy, and the D.N.A. [sic] expert?
10. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel failed to object to the Commonwealth’s
improper comments during closing arguments when the
Commonwealth stated “every word out of your mouth is a lie,”
and “he lied to you”?
11. Whether Appellant was denied his constitutionally
guaranteed right to effective representation when Appellant avers
that [t]rial [c]ounsel included false information in his Anders[2]
[b]rief to the Superior Court of Pennsylvania when he stated in his
Anders [b]rief that Appellant was in the house during the
shooting?
Appellant’s Brief at 4-7 (suggested answers omitted).
____________________________________________
2 Anders v. California, 386 U.S. 738 (1967).
-3-
J-S07025-19
When reviewing the denial of a PCRA petition, we consider “whether the
PCRA court’s determination is supported by the record and free from legal
error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-1284 (Pa. 2016)
(internal quotation marks and citation omitted). We are bound by the court’s
credibility determinations if they are supported by the record.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). Our standard of
review is de novo as to the PCRA court’s legal conclusions. Id.
“With respect to claims of ineffective assistance of counsel, counsel is
presumed to be effective, and the petitioner bears the burden of proving to
the contrary.” Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018).
Moreover,
A petitioner will be granted relief only when he proves, by a
preponderance of the evidence, that his conviction or sentence
resulted from the 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.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (emphasis added).
Pursuant to the United States Supreme Court’s decision of Strickland
v. Washington, 466 U.S. 668 (1984), to prevail on a claim of ineffective
assistance of counsel, the petitioner must plead and prove three elements: 1)
the underlying claim has arguable merit; 2) counsel had no reasonable basis
for his action; and, 3) the petitioner suffered prejudice as a result of counsel’s
action. Brown, 196 A.3d at 150. As our Supreme Court has made clear, a
petitioner shoulders a sizeable burden in demonstrating that counsel’s actions
-4-
J-S07025-19
lacked a reasonable basis or that counsel’s tactics produced an actionable
harm:
With regard to the second prong (reasonable basis), we do not
question whether there were other more logical courses of action
which counsel could have pursued; rather, we must examine
whether counsel’s decisions had any reasonable basis. We will
hold that counsel’s strategy lacked a reasonable basis only if the
petitioner proves that a foregone alternative offered a potential
for success substantially greater than the course actually pursued.
Our review of counsel’s performance must be highly
differential. To establish the third element (prejudice), the
petitioner must show that there is a reasonable probability that
the outcome of the proceedings would have been different
but for counsel’s action or inaction.
Id. at 150-151 (internal quotations, citations omitted; emphasis added). The
defendant’s failure to establish just one of the three Strickland factors
“requires rejection of the ineffectiveness claim.” Commonwealth v. Dennis,
950 A.2d 945, 954 (Pa. 2008).
In his first issue on appeal, Appellant asserts that “he was denied his
constitutionally guaranteed right to effective representation when . . . [t]rial
[c]ounsel asked Appellant, on the stand, whether he had ever been arrested
for any other crimes.” Appellant’s Brief at 47. He argues that “this
introduction of his previous arrest opened the door for the Commonwealth to
introduce Appellant’s entire rap sheet.” Id. at 48. He baldly concludes, with
no explanation or analysis, that “the outcome of the trial would have been
different” but for trial counsel’s questions about his arrests. Id. We disagree.
In analyzing this claim under the three-part Strickland test, we agree
that the first prong of the test has been met; i.e., the underlying claim has
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J-S07025-19
arguable merit. Evidence of a defendant’s prior arrests is generally
inadmissible because it may lead the jury to infer past criminal conduct by the
defendant. Commonwealth v. Williams, 660 A.2d 1316, 1321 (Pa. 1995).
However, such evidence may be admissible where the defendant opens the
door. “If [the] defendant delves into what would be objectionable testimony
on the part of the Commonwealth, then the Commonwealth can probe further
into the objectionable area.” Commonwealth v. Stakley, 365 A.2d 1298,
1299-1300 (Pa. Super. 1976). By eliciting testimony from Appellant as to his
prior arrests, the Commonwealth had the right to further elaborate on those
arrests. Commonwealth v. Palmer, 462 A.2d 755, 760 (Pa. Super. 1983)
(“Once a defendant . . . has himself introduced evidence of his prior crimes,
the prosecution has a limited right to introduce evidence of prior convictions
in rebuttal.”). Hence, there is arguable merit to Appellant’s claim that trial
counsel provided ineffective assistance by asking Appellant about his prior
arrests. However, Appellant failed to prove the second and third prongs of
the Strickland test. Accordingly, Appellant’s claim of ineffective assistance
of counsel fails.
In addressing the second prong – reasonable basis – the PCRA court
concluded that trial counsel had a reasonable basis for asking Appellant about
his criminal record on direct examination. In reaching this conclusion, the
PCRA court credited trial counsel’s testimony that “‘[i]t was our plan from the
beginning not to hide [Appellant’s] background’ and the strategy was to
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J-S07025-19
acknowledge [Appellant’s] criminal background to the jury so as to ‘try to
separate in their mind[s] their personal feelings as opposed to what they feel
legally.’” PCRA Court Opinion, 9/19/18 at 32 (internal citations omitted). The
PCRA court went on to find “[c]ounsel stated that the understood strategy was
not to hide from [Appellant’s] background, but to concede past crimes and an
unsavory lifestyle, in the hopes that the jury would recognize the admission
and understand that such an admission does not necessarily implicate
[Appellant] in the crimes being tried.” Id. We agree with the learned PCRA
court. As cautioned by our Supreme Court, we must be “highly deferential”
in reviewing counsel’s performance and deny relief whenever counsel’s
decisions have any reasonable basis. Appellant’s unsavory past and current
illegal lifestyle were going to be a primary focus of the case. In fact, trial
counsel was certain in his expectation that evidence of Appellant’s prior
involvement in criminal activity would be introduced through other witnesses
who testified at trial. It was a reasonable defense strategy not to hide from
Appellant’s past but to confront it head-on. Thus, Appellant failed to meet his
burden with respect to the second element of the Strickland test.
Turning to the third prong of the test – prejudice as a result of counsel’s
actions – Appellant failed to meet his burden of establishing prejudice in
several ways.
First, although evidence was introduced at trial as to Appellant’s prior
arrest record, said evidence was scant and the references were fleeting. Thus,
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J-S07025-19
these passing remarks were not so highly prejudicial to Appellant that, had
this evidence not been introduced, the outcome of the trial would have been
different.
During the seven days of trial, there was an abundance of evidence
introduced by both the Commonwealth and the defense as to Appellant’s
criminal lifestyle as a large-scale drug dealer. Appellant admitted that he
began selling drugs at the age of 16 and built up his business to the point
where he dealt with large volumes of drugs and sums of money. He also
admitted to carrying a gun at all times, having at least 14 different aliases,
and using numerous birthdates and social security numbers. Clearly, the
evidence was overwhelming that Appellant had been involved in major
criminal activity for decades.
In contrast, the express references to his prior arrest record were
extremely limited. On direct examination, the following testimony was
elicited:
[Counsel]: Okay. Had you ever been arrested before this?
[Appellant]: Yes, sir.
[Counsel]: How many times? Just give me times. How
many times have you been arrested in your life?
[Appellant]: Four.
[Counsel]: Four times. Have you ever been arrested for
drug offenses?
[Appellant]: No, sir.
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J-S07025-19
[Counsel]: What kind of offenses have you been arrested
for?
[Appellant]: Receiving stolen property when I was young.
[Counsel]: And what else?
[Appellant]: Weapons charge.
[Counsel]: So there were weapons involved also in this
activity?
[Appellant]: Yes, sir.
N.T., 10/12/15, at 894. On cross-examination, the references to Appellant’s
prior arrest record were limited to the following:
[DA]: You were asked by your [c]ounsel about your
prior arrests and you first said you had four of
them, but then you only talked about two. You
talked about receiving stolen property and you
talked about the gun charges. What were the
other two that you failed to reference?
[Appellant]: Attempted robbery.
[DA]: Attempted robbery, both of them?
[Appellant]: I’m not sure. Honestly, it was so long ago I
don’t know.
Id. at 963-964. The multiple volumes of testimony from this lengthy trial
are replete with references to Appellant’s criminal conduct. The
Commonwealth’s two questions about Appellant’s past charges for attempted
robbery were not so prejudicial that, had they not been asked, there was a
reasonable probability of acquittal.
-9-
J-S07025-19
Leaving aside the passing references to Appellant’s prior arrests, the
trial transcript offers compelling and wholly unrelated evidence to support
Appellant’s guilty verdicts. The evidence establishes that Appellant and the
victim, Keith Crawford, were partners in the drug-dealing business. They
worked together for years but recently had a falling-out over drugs and
money. On the morning of March 10, 2014, Appellant, his former girlfriend
and co-defendant, Akeita Harden, and his cousin, Rick Cannon, traveled to Mr.
Crawford’s home in a red Cadillac SUV which was owned by Ms. Harden’s
friend. At some point that morning, Appellant, Ms. Harden and Mr. Cannon
were inside Mr. Crawford’s home with Mr. Crawford and the other victim,
Marcus Ortiz. Mr. Crawford was “cooking” cocaine into crack cocaine. Ms.
Harden returned to the SUV at which time she heard gunshots and saw
Appellant and Mr. Cannon run from Mr. Crawford’s apartment and return to
the SUV. Appellant was carrying a paper bag and jumped into the front
passenger seat. Mr. Cannon got in the back seat. Appellant was screaming
at Ms. Harden, who was in the driver seat, to “get me the f**k out of here”.
N.T., 10/9/15, at 864. Ms. Harden led the police through Lebanon,
Pennsylvania on a high-speed chase while Appellant yelled directions to her,
even as she ran into a yard, hit signs and ran over a fire hydrant. Appellant
eventually ordered Ms. Harden to stop the SUV at an alley near 7th and Guilford
Streets, which was only a short distance from Appellant’s stash house.
Appellant jumped out of the front passenger seat of the SUV and ran down
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J-S07025-19
the alley. Ms. Harden was stopped by police near the SUV.3 Mr. Cannon
jumped from the rear passenger seat and ran in the opposite direction from
Appellant where he was eventually apprehended. Appellant was successful in
eluding police that day.
In the alley where Appellant escaped, the police recovered a ring that
belonged to Mr. Crawford and a bag of cocaine. Also found in the alley was a
9-millimeter Makarov which was determined to be the weapon used in the
shootings of both Mr. Crawford and Mr. Ortiz. The Makarov had Appellant’s
DNA on the grip. When the SUV was searched, a watch belonging to Mr.
Crawford (that contained drops of Mr. Crawford’s blood) was located in the
doorjamb between the front passenger seat and the door, and a key ring
containing Mr. Crawford’s house and car keys was found on the floor of the
front passenger seat.
____________________________________________
3 Ms. Harden, Appellant’s co-defendant, was questioned by police after she
was apprehended. She told police at that time that Appellant talked about
robbing Mr. Crawford about one week prior to the incident. At trial, Ms.
Harden recanted this statement. Instead, she testified that Appellant
discussed robbing a person known as “Ritchie Boy” approximately one year
earlier. Ms. Harden’s testimony lends further support for the soundness of
trial counsel’s strategy, which assumed inevitable disclosure of Appellant’s
longstanding involvement in criminal activity, and contemplated a plausible
plan to address adverse facts before the jury. Moreover, testimony about
Appellant’s threat to commit a robbery bolsters the conclusion that the mere
reference to Appellant’s prior arrests for attempted robbery during Appellant’s
cross-examination was not overly prejudicial to Appellant.
- 11 -
J-S07025-19
Appellant was arrested several months later in Philadelphia. Appellant
admitted during trial that he gave false names and identification and lied
repeatedly when first questioned by the police.
A former cellmate of Appellant’s testified that he was being transferred
to a different cell block in the jail where Mr. Cannon was located. Prior to his
transfer, Appellant told the cellmate to tell Mr. Cannon that he should take the
rap since Mr. Cannon had Acquired Immune Deficiency Syndrome (AIDs) and
was going to die in jail anyway. Appellant also told his cellmate to tell Mr.
Cannon that, if he took the blame, Appellant would take care of Mr. Cannon
by providing him with drugs and commissary money. When Appellant learned
that his cellmate was going to testify at Appellant’s trial, Appellant threatened
to kill him.
Most importantly, Mr. Crawford, the surviving victim of the shooting,
identified Appellant during a photo lineup and testified during trial that
Appellant stole his watch and ring and was the man that shot him.
With this vast amount of evidence, we cannot conclude that, had
Appellant not been asked about his prior arrest record, there would be a
reasonable probability that the verdicts would have been different.
Accordingly, Appellant failed to establish that he suffered prejudice as a result
of trial counsel’s actions.
As previously noted, our Supreme Court has directed that a “petitioner
will be granted relief only when he proves, by a preponderance of the
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J-S07025-19
evidence, that his conviction . . . resulted from the 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.” Spotz, 83 A.3d at 311 (emphasis
added). Appellant failed to prove by a preponderance of the evidence that
trial counsel’s elicitation of Appellant’s prior arrest record so undermined the
truth-determining process that no reliable finding of guilt could have taken
place. Appellant’s first claim on appeal fails.
In his second issue, Appellant asserts that “he was denied his right to
effective representation when his [t]rial [c]ounsel failed to file a [m]otion to
[s]uppress the evidence that was obtained from an illegal search of Appellant’s
vehicle and the illegal use of Appellant’s legal mail correspondences [sic] in
and out of the prison.” Appellant’s Brief at 11. First, Appellant argues that
the keys to Mr. Crawford’s Nissan, which were found on the floor of the front
passenger side of the Cadillac SUV, were obtained through an illegal search.
Without analysis or citation to the record or legal precedent, Appellant makes
the bald statement that trial counsel “should have filed a [s]uppression
[m]otion regarding any and all evidence seized as a result of said illegal
search.” Id. at 13.
Appellant’s argument regarding this issue is scant and contains mere
conclusions. It is, therefore, difficult to ascertain from Appellant’s brief
whether he is merely arguing that the search of the Cadillac SUV was illegal
- 13 -
J-S07025-19
and, therefore, the keys to the Nissan found during that search should have
been suppressed, or whether he is arguing that the subsequent search of Mr.
Crawford’s Nissan was illegal. In its opinion, the PCRA court notes the
following:
During testimony at the PCRA [h]earing, [Appellant] alleged that
keys that were used to open a Nissan, in which the police found
illegal drugs, were obtained from an illegal search of a Cadillac
SUV. The Cadillac SUV had been impounded by the police after it
was found abandoned following an extensive high-speed chase.
[Appellant] was identified as an occupant of the Cadillac SUV who
exited from the vehicle during the chase. At trial, testimony from
Corporal Wade Achey indicated that the Nissan was actually
opened by a locksmith that was called to the scene, but that the
keys found in the Cadillac SUV were determined to be the keys to
the Nissan.
PCRA Court Opinion, 9/19/18, at 7. In denying relief, the PCRA court focused
on the legality of the search of the Cadillac SUV and found that Appellant failed
to establish that the underlying claim had arguable merit; therefore, the first
prong of the Strickland test was not met. Specifically, the PCRA court found
that, although Appellant referred to the Cadillac SUV as his vehicle during the
PCRA hearing, “[Appellant] admitted that the Cadillac was not owned by him
or any of the co-defendants, and none had any possessory interest in the
Cadillac.” Id. The PCRA court went on to conclude “[Appellant] fails to plead
or prove his standing to otherwise challenge the search or demonstrate a
privacy interest in the Cadillac SUV. … [Appellant] admitted that he had no
personal, possessory interest in the Cadillac. Therefore, his claim [lacks]
- 14 -
J-S07025-19
arguable merit.” Id. at 7-8. We agree that Appellant failed to establish the
first prong of the Strickland test, but for a different reason.4
Contrary to the PCRA court’s finding that Appellant lacked standing to
seek the suppression of evidence as he was not the owner of the Cadillac SUV,
Appellant did have standing to pursue a suppression motion under
Pa.R.Crim.P. 581 as his own constitutional rights may have been infringed.
The doctrine of “automatic standing” permits a passenger in a vehicle to
challenge the admissibility of evidence alleged to be the fruit of an illegal
search and seizure even if the passenger has no ownership interest in the
vehicle. Commonwealth v. Enimpah, 106 A.3d 695, 697 (Pa. 2014).
Although federal courts have abandoned the automatic standing doctrine
under the United States Constitution, our Supreme Court has held that
automatic standing is recognized under Article I, § 8 of the Pennsylvania
Constitution. Commonwealth v. Sell, 470 A.2d 457 (Pa. 1983). As our
Supreme Court recently clarified:
The automatic standing doctrine survives in our Commonwealth
today. However, its operation does not qualify a defendant
automatically to relief. Standing denotes the existence of a legal
interest and entitles a defendant to file a suppression motion and
to have that motion adjudicated by a court; nothing more. It
allows the defendant to get his or her foot in the courtroom door;
more is required before suppression becomes an available
remedy.
____________________________________________
4 “[A]n appellate court may uphold an order of a lower court for any valid
reason appearing from the record.” Ario v. Ingram Micro, Inc., 965 A.2d
1194, 1200 (Pa. 2009).
- 15 -
J-S07025-19
Commonwealth v. Shabezz, 166 A.3d 278, 286 (Pa. 2017) (internal
quotation marks and citations omitted). The Court went on to explain:
Generally, to have standing to pursue a suppression motion under
Pa.R.Crim.P. 581, the defendant’s own constitutional rights must
have been infringed. However, it is well settled that a defendant
charged with a possessory offense in this Commonwealth has
automatic standing because the charge itself alleges an interest
sufficient to support a claim under Article I, § 8 [of the
Pennsylvania Constitution]. This rule entitles a defendant to
review the merits of his suppression motion without a preliminary
showing of ownership or possession in the premises or items
seized. In addition to standing, though, a defendant must show
that he had a privacy interest in the place invaded or thing seized
that society is prepared to recognize as reasonable. . . . In
essence, while a defendant’s standing dictates that a claim under
Article I, § 8 may be brought, his privacy interest controls whether
the claim will succeed—once a defendant has shown standing, he
must, in short, having brought his claim, demonstrate its merits
by a showing of his reasonable and legitimate expectation of
privacy in the premises.
Id. at 286-287, quoting Enimpah, 106 A.3d at 698-699 (cleaned up). As a
result of the events that occurred on March 10, 2014, the Commonwealth
charged Appellant with, among other things, the robbery of Mr. Crawford.
Among the items taken from Mr. Crawford were his key ring (containing his
house and car keys), a watch and a ring. Mr. Crawford’s keys and watch were
recovered from the Cadillac SUV. Since the Commonwealth charged Appellant
with an offense stemming from his possession of items recovered from the
Cadillac SUV, Appellant had standing to pursue suppression of such evidence.
However, as our Supreme Court has made clear, the inquiry does not end
there. In addition, Appellant was required to show that he had a reasonable
and legitimate expectation of privacy in the Cadillac SUV. Appellant failed to
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J-S07025-19
make any argument as to his reasonable and legitimate expectation of privacy
in the SUV.5 Thus, Appellant failed to establish that his claim has arguable
merit. As Appellant failed to meet the first prong of the Strickland test, we
need not consider the remaining two prongs. Accordingly, Appellant’s claim
that counsel was ineffective for failing to seek the suppression of the evidence
obtained as a result of the search of the Cadillac SUV fails.
Appellant also argues that trial counsel should have filed a suppression
motion “regarding the illegal use of Appellant’s legal mail correspondences
[sic] that were sent directly to the detectives who were investigating the
case.” Appellant’s Brief at 13. In addressing this issue, the PCRA court stated:
[Appellant] alleges that that both his and Ms. Hard[en]’s mail were
being intercepted and sent to detectives working on the case.
[Appellant] specifically avers that [t]rial [c]ounsel should have
filed a motion to suppress a letter that was read in court during
his trial. Finally, [Appellant] contends that his legal mail was
intercepted and sent to investigators.
During cross-examination, at the PCRA [h]earing, [Appellant]
admitted that none of his actual correspondence, much less his
legal mail, was entered into evidence during his trial. Instead, the
only correspondence that was entered was from Ms. Hard[en] to
a member of her family. Th[e PCRA c]ourt then questioned PCRA
[c]ounsel regarding [Appellant’s] standing to bring this claim and,
after hearing arguments from the parties, sustained the objection
of the Commonwealth and struck the issue as not properly before
th[e c]ourt on PCRA.
____________________________________________
5 Even if Appellant had attempted to make a showing that he had a reasonable
and legitimate expectation of privacy in the Cadillac SUV, it is well-established
that a person has no privacy expectation in property that he voluntarily
abandoned or relinquished. Commonwealth v. Byrd, 987 A.2d 786 (Pa.
Super. 2009).
- 17 -
J-S07025-19
PCRA Court Opinion, 9/19/18, at 8 (internal citations omitted). On appeal,
Appellant makes no attempt to show that his mail was, in fact, intercepted or
more importantly, that his mail was introduced at any time during his trial.
Instead, as with all of the arguments regarding ineffective assistance of
counsel, Appellant makes bald factual allegations (with no citation to the
record of his jury trial) and concludes, with no analysis or legal citation, that
he met his burden of establishing ineffective assistance of counsel. Appellant’s
Brief at 13-15. We do not agree. Appellant failed to establish that his claim
has arguable merit, that trial counsel had no reasonable basis for his action
or that he was prejudiced in any way by trial counsel’s action.6 Accordingly,
this claim also fails.
Appellant raises nine other claims of ineffective assistance of counsel in
in this appeal. After reviewing the petition, the parties’ briefs and the
thorough and cogent opinion of the learned PCRA court, we conclude that the
PCRA court’s opinion adequately and accurately dispose of issues three
through 11. Therefore, we adopt the PCRA court’s September 19, 2018
opinion as our own with regard to the other nine issues. As such, we instruct
the parties to attach the PCRA court’s September 19, 2018 opinion to all future
filings pertaining to our disposition of this appeal.
____________________________________________
6 Appellant does not identify the correspondence allegedly intercepted and
introduced at the time of his trial. Thus, it is impossible for this Court to
determine whether the correspondence was, in fact, improperly seized or
prejudicial to Appellant.
- 18 -
J-S07025-19
Order affirmed.
Judge Pellegrini joins.
Judge McLaughlin files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2019
- 19 -
Circulated 07/25/2019 02:23 PM
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Before the.. court is Defendants Petition for .Post-ConvictionRelief For
the reasons set forth herein, Defendant's Motion is hereby denied; as specified
below,
FACTS-AND. PROCEDURAL BlSTORY.
Defendant was charged with one. count ofCriminal Homicide-, onecount
of Criminal Attempt to commit Criminal Homicides, two: counts of Conspiracy
to commit Criminal Hcmicide'', fotU' counts of Aggravated Assault'', .four counts
of Conspiracy to- commitAggravated Assault", one count of Robbery'', one count'
0£ Cnim.irial Corispiracr to comznif Robbery?, orre, co�t. -0£ Violation of the·
Conbrol.led Substance, Drug, Device and Cosmetic Act8, one count of. Crinrinal
Go:q.�p4'.acy to .commit .a Violation .of ·the· Controlled Substance'', Drug, Device,
,.
·118· Pli.C.SA. � 250l�a)
2 18. Pa.Q.S_.A. § 903(a)(l)
· s · 1, 8 Pa:C;S.A. § 903(a)(l,)
<i· 1s_ �a.Q.1:3.A. § 270�(�)(1);-18 Pa:C.S.A. § ·2702(a)'(4)
s 18 .�a:C.S.A.. § 908(a)(l) ·
6 18.Pa.C.S.Ai § 8701(a)(1)(1)
1 18 fa:0.S.A. § 903.(a)(l)
s-35·-P.a.C.RA. § 780-113(a)(80)
a 18 Pa.C.S.A; § 903(a)(l)
i
......�... ·-·..-·-·--···-�·----···-·.. --·--····--·--..-· ·--· ·�-·-·--------------- -------··-·-··-·-·
·
and Cosmetic Act and one count of Person Not to Possess, Use , Manufact:ur.e,
Control, Sell ·.or. 'Izansfer Firearms-'', one countofFirearma Not to be' Canie·d
Without a License+', one count of Flight to Avo.id Apprehension, Trial or
Punishment'> and one count of Criminal Conspiracy to commit Flight to Avoid
Apprehension, 'I'rial or Purdshment-", Following a seven day jury tri�l ·held jn
October, 2'0.15, Defendant was found gttilty on all counts .. On . December 2,.
2015·, Defendant was sentenced to life. iniprisonment-..
'I'hereafter, on. December 3, 2015, Defendanf
; .
filed .an appeal
.
with the
Superior Courtalleging errors. of tbis .Court. ·a·n August 24, ·2016, the Superior
Cci�,t affirmed Defendant's judgment of sentence.
On July 14� 2017, Defendant filed epro se Petition for Post-Conviction.'
Relief alleging various claims of ineffective assistance' .of counsel through. the
actions of Trial Counsel. We aasigned counsel to assist Defendant and.
subsequent Amended Petitions were 'filed. Defendant's 'Second Amended
Petition alleges that Defendant was denied his tight to the effective assistance ..
of counsel in the: following way,.s:
.I. ·Trial Counsel's.failure to file a Motion to Suppress evidence
that.was obtained ·through an illegal search 'of Defendant's
vehicle and the .' Illegal use, of: Defendant' s legal mail
·CQrr.ssponde�ces. ·· ·
2.. Trial counsel failed to call or interview Matthew Snevely as·
a. witness· at Defendant's
.
·trial·
,·
..
3. Tri.al;. Counsel deliberately informed the jury that:
Defendant'a Co ..Defendant pled. guilty, wi,thottt filing' a·
Motionin Limine, thus.allowing the.jury to hearthat he pled
guilty.
10 18 Pa.C.S.A. § 6I05(a)(l)
n is Pa;.C.S.A. § 6105(a).(1)
12 18 Pa;C.S.A. § 5126�a)
111 18 Pa;C,S.A. § 903(�)(1)
2
................... ----·- ..·-·----···-----·-....- . .·----
. ·-
4� Trial Counsel stipulated to the. recanted report and
testimony of Officer Edward A. Kosicki. ·
'
.p.. Trial Counsel failed to object. to the Oommenwealth's
witness> Josephine· Wolfe.> and 'her identdfication of
Defendant,
6. Tri�l Counselfailed, to object to inadmissible evidence, such
as Co-Defendant Rick Cannon's bloody clothes, shoes, GSR
report.
7 .· Trial Counsel-failed to object to the 'use of Commonwealths.
audio recording of Co-Defendant' Harden's non-redacted
statement to· the jury.
S-. Trial 'Counsel failed tel 'properly cross-examine- Keith
Crawford, Chief Leahy, and the DNA Expert.
9. Trial, Counsel failed to: object to the Commonwealfh's
improper comments during closing arguments when the
Commonwealth stated that ·,·'every word out o;f your mouth.is
a lie�'· and "he lied toyou,"
10. .T1-i'al Counsel mcluded false 'infermafion in his Antler's Briefto the
Superior Court of Pennsylvania when he . stated that Defendant
was in_.th.e houseduring theshooting.
11. Trial Counsel asked Defendant on the stand whether he; had ever
been arrested for any other crimes,
·],2·. "I'rial Counsel failed to object to the contradictorytestimony of the
Commonwealth's witnesses, Keith Crawford and the DNA Expert.
W.e :theri scheduled a heaxin� on Defendan.t�s PORA, :eeti;tion for !,1' arruary
19, 201.8. Upon motion of the .Commonwealth, the hearing was continue dto
March 2.6, 2018:.
At the PdRA Hearing, Defendant; testified on bis .own behalf while the
.Gommq·nwe�lt4 'called Defendant's trial counsel, Harry Fenton, Esq. ("Trial
Couns�l"); Upon conclusion of the PORA Hearing, the Court directed that. the
'parties file briefs in support of their respective positions within forty-five (45)
days of;·th� filing ofbhe tra:riscyj.pts·. Defendant filedhis brief.on May 22,.2018.
3
·--·----
:•···
The Commonwealth failed to file a brief. The matter is thus before this Court
and ripe.for disposition ..
DlSCUSSION
The PORA sets forth the requirements for apetitioner's eligibility· for
relief.as follows:
. . . .
§ 9543. Eligibility for relief
(a) General rule.v-To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
(l) That the petitioner has been convicted of a .crime
under-the laws of this Commonwealth and is at the time relief
isgranted:
(i) currently .serving a sentence of imprisonment,
. probation or parole for the crime;
(ii) .awaiting execution of a sentence 0£ death for the
crime; or·
(iii) serving a sentence which must expire before the
person may commence serving the disputed sentence.
(2) That the conviction or· sentence resulted from one or
more of the following:
(i) A violation o:f the Oonetitution of this
Commonwealth or the Constitution or laws of the United
States which, in the circumstances of the particular case, so
undermined the truth-determining process thatno reliable
adjudication of guilt ot innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the
circumstances of the. particular case; so undermined the
truth-detemrining process that no reliable adjudication of
guilt or innocence could have ta.ken place.
(iii) A plea of .guilty unlawfully induced where ·tp.e
circumstances make it likelythat the inducement caused the
petitioner to plead guilty and the 'petitioner is innocent.
4
-·-·-·--·-·········- ..------·-·····-----·-· --- ·----------------
(iv) The .improper obstruction by government. officials
of the petitloner's right of ·appeal where a meritorious
appealable ��sue existed and was properly ..preserved.dn the
trial court. ·
(v) Deleted,
(vi) .The unavailability: at the time. of trial of
exculpatory evidence that has jsubsequently become
available and would have changed the outcome of the tria1'if ·
it.had been introduced ..
(vii) The .impositaon, of a serrtenee greater than the
lawful maximum.
(viii) A -proceedrng in .a tribunal without jurisdiction.
(3) That the allegation ·.qf error has not been previously
litigated or waived, .
(4) That the failure to.litigate the issue prior to or' during.
trial, during unitary review or on direct appeal could not have
been theresulr of any rational, strategic or tactical decision. by
counsel.
42 Pa.c:s.A, § 9543(a).
Ineffective.' assistance 0£. counsel is·· one of the grounds en.ume.rated.m42
·.Pa.C;S.A. § 9548(�)(2) .. Article I,_ Section 9 ofthe Pennsylvania Constitution,
guarantees an accused the '.right to counsel in criminal prosecutions: This
section provides the following.
In all criminal prosecutions the accused hath a right to be
heard by himself and 'his counsel, to demand the' nature. and
cause of the accusation. against him; to be confronted with
the witnesses. against him, to have compulsory process for
obtaining witnesses in his favor, and, in prosecutions by
indictment .or .information, a speedy public trial, by an
impartial Jury ofthe vicinage ...
5
. ·-·-··-·,, _,_ .,_.,.. _ _ __
.,._, ,. -..-·,·--------·-· -----·--·..--. ·---··----·-·._ "·---.-·-··-- .
PA Const, Art. 1, §9. The right to counsel includes the·.dght to the effe.ctive
assistance of counsel. Strichland: v. Washingto·n, . 466' -D.S, 668., 686 (l984),
citing McMann U; 'Richardson, 3.Q7 U:S. 1i59, ·771;_ n. 14 (1970).
The Pennsylvania -Suprem.e Court has stated the following regarding a
claim of_ineffect.ive assistance of counsel.in a PCRA petition:
.A PCRA petitioner will begranted relief only when he proves, by"
apreponderance of:the evidence, that his· conviction or sentence
.resulted from the Ineffective assistance of counsel which, in the·
CITCUIDSt°ances of the particular case, &O· undermined the truth- .
-determimng process ·that· no reliable adjudication of -guilf 01'
.innocence could have taken place. Counsel ispresumed effective,
and. to rebut that presumption, the: PORA petitioner must
demonstrate that counsel's performance was ... deficient and that.
such deficiency prejudiced. J::ri:fu. In Pennsylvania, we. have
· .refined the Strickla.nd performance and '.prejudice test -into .a
three-part· 'inquiry, 'Phus, to prove. counsel ineffective, the.
petitioner must show 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. If.apetationerfails.toprove anyof these prongs, his claim
fails. Generally, counsel's assistance is deemed constitutionally
effective if he chose a particular course of conduct.thathad some
'reasonable basis · designed to effectuate his .client's
.interests. Where matters of strategy and tactics are concerned,
a finding that a. chosen strategy Iackad ·a.reasonable basi� is not
warranted unless it can be
conclttdea that· an alternative not
chosen. offered a potential for success substantially greater than
·the course actually pursued. To demonstrate· prejudice, the
petitioner must. show that there.is a reasonable probability that,
· but for. counsel's unprofessional errors, the result of · the
_p;roceedings would have been different. A reasonable probabifity
is a ...probability that is sufficient toundermine ..confidencein the
outcome of the proceeding.
Com. v. Spatz, 84 A.3d ·-294, 311-l.2 (Pa. 2014) (citations omitted), ''Argq.able
merit exists when the factual statements. are. accurate. and could establish
6 ,
·················--···········-··············-··········-·-··-------·······-··· · ·· ···- ··- ··---··-·------··---·------ ·----· ····-·--··---·······
cause for relief. Whether the fact� rise to the level of arguable merit is a legal
determination," Com. v. Barnett, 121 A.3cl 53.4, 540 (Pa.Super. 2015)(internal
quotations and citations omitted). We therefore evaluate each claim
accordingly.
Failure to File a Motion to Suppress Evidence Obtained in an Illegal search of
Defendant;s Vehicle and the Illegal· Use of Defendant's Legal Mail
. Correspondences
Defendant first argues that he was denied his constitutionally
guaranteed right to effective representation because bis Trial Counselfailed to
file a motion to suppress evidence obtained from an illegal search ofhis vehicle.
During' testimony at the PCRA Hearing, Defendant alleged that keys that were
used to open a Nissan, in which the police found illegal mugs, were obtained
from, an illegal search of a Cadillac SUV. The Cadillac SUV had been
'impounded byfhe police after it was found abandonedfollowing ail extensive,
hi.gh-speed chase. Defendant was identified as an occupant of the Cadillac
SUV who exited from the vehicle during the chase, At trial, testimony from
Corporal. Wade Achey indicated. that the Nissan was actually opened by a
locksmith that was called to the scene, but that the keys found in the Cadillac
SUY were determined to be the keys to the Nissan.
Throughout his direct examination at the PCRA Hearing, Defendant
refered to the Cadillac SUV as his vehicle. However; during cross-
examdnation, Defendant admitted that the Cadillac was not owned by him or
.any of the co-defendants, and. none had any possessery-interest in the Cadillac.
(Notes of Test.imony ofMarch 26, 2018 PORA Hearing "PCR.A Hearing N.T.''
at 54�55). Defendant was not in the vehicle when it was taken into. custody by
police. Furthermore� Defendant fails to plead or prove his standing to
7
· · ·············-···-----··-·---- .. ·-···---------··-·--------------------------·-·-· -
otherwise challenge the search or demonstrate a. privacy interest in the
Cadillac SUV.
We find that Defendant has failed to satisfy the.first prong 0£ showing
that the underlying claim has arguable merit. 01.U' Supreme Court 'haasbated
that "a. defendant cannot prevail upon a suppression motion unless he
demonstrates that the challenged police conduct violated his own, personal
privacy interests," Com. v. lVlillner; 8.88 A.2d 680, 692 (Pa. 2005). Defendant
admitted that. he had 110 personal, pcssessory interest in the Cadillac.
Therefore,. his claim £ajJ.s to have arguable merit.
The next issue raised by Defendant with respect to Trial .Counsel's
failure to file a motion to suppress involves the monitoring of his
correspondence while in jail and the en-tty of correspondence from CQ-
Defendant, Akeita Harding, into evidence at trial. Defendant alleges that both
his and. Ms. Harding's mail were being intercepted and sent to detectives
working on the case. .Defendant specifically avers that 'I'rial Counsel should
have filed a motion to suppress a letter that was read in court during his trial.
Finally, Defendant contends that his legal mail was mtercepted and sent to
investigators ..
During cross-examination at the PCRA Hearing, Defendant. admitted
that .none of his actual correspondence, much less his Iegal mail, was entered
into evidence during his trial. Instead, the only correspondence that was
entered was from Ms. Harding to a rnember of.her family.
. (PCRA N.T. 5.5).
.
This Court then questioned PCRA Counsel regarding Defendant's standing to
bring this .claim and; after. hearing arguments from. the parties, sustained the
objection of the Commonwealth and struck the issue as not properly before this
Court o:rl.PCRA. (PCRA Hearing N.T; 128�130).
8
· ··-.. --..-----·- ..···--·---·---···---·---······-·-------·-----------------------·----·--·-·-·-
Failure to Call or Interview Matthew Snevely
Defendant next avers that Trial Counsel was ineffective for failing to ·
interview or call Matthew Snavely, a witness identified 'in police reports as
having seen; Defendant outside the crime scene on the morning of the homicide.
Defendant also argues that Trial Counsel was ineffective for.failing to.properly
cross-examine t�e Commonwealth's witness as to Mr. Sn:evely and reports
indicating that police had contact with him. Defendant alleges that Mr.
Snevely would have corroborated Ins alibithat he was outside ofthe apartment
at the time of the homicide and did not participate in the crime. Furthermore,
Defendant contends that the lsad.Investigator called at trial; testified that the.
police found no witnesses.
The police report provided indicated that· Mr. Snevely · was interviewed.
by police and stated that he saw an. individual, later identified as Defendant,
standing at the Cadillac S1JV and then walking back into the building where
the homicide took place. During Defendarrt's · trial, Trial Counsel specifically
questioned the chief investigator, Chief Leahy, regarding Mt, Bnevely, even
indicating that Mr, Bnevely's name was on a list of witnesses, to which Chief
John Leahy replied "I personally do not recall that individual" and that he
"obvtoualy did not interview :pim:· (Notes of Testimony of Trial "Trial N.T." at
713-714).
In a letter produced at the PORA Hearing, Trial Counsel indicated to
Defendant that he made a "conscious decision not to call this person because
he never actually identified you at the time and I was leery of his testimony�"
. . ..· .
(PCRAHea.rm.gN.T. 16, Ex .. 3). At the PCRA Hearing, Trial Counsel testified
that M.r. Snevely's identific�tion 0£ Defendant .. was problematic because of an
inability to pinpoint the exact t.ime of the encounter and that he did not call
9
···-···..-- ,_,,,_ .. --------·----
Mr. Snevely asawitnessbeeause he was "worried what he might say."{J?CRA
Hearing 92). However, Trial Counsel admitted thaf he did not.interview Mr .
.Snevely ·and if he had, he would have known the substance of Mr. Sn�vely's
testimony.
To· establish ·tha.t' counsel was ineffective for failing to call a.
witness, [a, defendant] must demonstrate that .(1) the witness
existed: (2.) the witness was available to testify for the defense: (3):
counsel knew· of, or: should have known .·.qf, the existence of the
witness; (4) the witness was willing to tee;ti:fy for the. defense; and
(5). the absence of the testimony of the witness was so prejudicial
as to havedenied the defendant a fairtrial. See'. Commonwealth u..
Fletcher� 561 Pa. 266, 750· A.2d 261, 275 .(2000). Failur� to call a
witness is not per· se ineffective assistance of counsel, for such a
decision implicates matters of trial -strategy. Commonwealth v.
Auker, 545 Pa. 521; 68.1. A.2d. 1305, 1319 (l996). lt is [a
defendant's] burden to demonstrate that trial counsel had no·
reasonable basis for declining to call [ ] a witness.
Com. u, ·washington, 92'7 A.2d 586, 599. (Pa. 2007).
Defendant, has -demon&trat.ed that Mr . Bnevely existed as a: poasible
witnessand that 'I'rial Counsel knew of Mr. Snevely. However, we notethat
Defendant.failedto demonstrate that Mr:. Snevely was ..available.and willing. to
testify as ·8: witness for the defense at trial. Defendant failed to �U Mr. Snevely
to te�.tjfy at the }?CM.:S:e.aring regarding what his ·testiµl.oiiy m;ight have been
at tria:I. Defendant's speculation 'that-Mr, Snevely's testimony would. ;have
corroborated his alibi does not establish that the-witness' absence at trial was
so prejudicial as to deny his right to a fair trial. Consequently, we.find nomerit
iri Defendant'a claim of ineffective-assistance for failure.to call iv.Ir. Snavely as
a witness at trial. ·
As for '1:rial Counsel's cross-examination of Chief Leahy, we again find
that Defendant' has failed to establish tha:t an. alternative strategy presented
----··· · · --·-·· -· ·-·--------··----·---------------------·--·---·--·-
the opportunity for a substantially greater potential for success. Trial Counsel
clearly brought forth the issue of Mr. Snevely to the jui·y during his cross-
.examination of Chief Leahy and .even mentioned the fact that Mr. Snevely�s
name was on the list of witnesses. Neve:rthele.ss, as Trial Counsel expressed
during the. PORA Hearing, the concern as to establishing the timeline in
support of Defendant's · alibi could undermine .his defense altogether.
· Defendant fails to bridge the· gap between attacking: the credibility efChief
Leahy as to the witnees and such inaction so affecting the outcome of his trial
as to undermine the result thereof.
Informing the Jury that Co-Defendant Pled .Guilty Without Filing a Motion in
Limine
Defendant continues that Trial Counsel was ineffective for failing to file
a motion in Iimine on Defendant's behalf before informing the jury that Co-
Defendant, Rick Cannon, had pled guilty; Defendant argues that Trial
Counsel's comment to the jury during .opening statements regarding Mr.
Cannon's plea of guilty prompted the District Attorney to request a sidebar;
upon which, the Court then read aloud to the jury Mr. Cannon's entire
information, including charges of conspiracy thatcould implicate Defendant as
a co-conspirazor. It is noted that during Defendant's trial, Mr. Cannon was
unwilling to testify for eitherparty and bis case was on. appeal, so the Court
lacked sufficient[urisdiction to compel his testhnony.
Defendant alleges that having 1\<Ir .. Cannon's mformation read to the
Jury, including the conspjracy charges to which Mr. Cannon pled guilty,
essentially amountsto testimony without challenge.orability to cross-examine ..
Defendant contends that the reading 0£ Mr. Cannon's information clearly
impacted the jury since, duringdeliberations, the jury· specifically requested a
11
. '""'"--"·-·-·----·-- ..·-·-··-"''""""'"""'-- ·--- ----·------ ·---------------..-·----. ---"
copy of the information, although the Court denied that request and instead
read the information to the jury again.
At the 'PCRA Hearing, Trial Counsel testified th�t he employed the
strategy of disclosing Mr. Cannon's gtlil.ty pleato the jury "[bjecause I wanted '
fhejuryto know that Rick Cannon.had=had pled guilty. My whole=theory was
we can tell.the fury we know somebody killed these people .... We know who .
. it is because ·he already told you that>' (PORA HearingN:T. 89). Trial Counsel
stated that he believed, at the time, that.reading the information by the court
was the appropriate thing, hut that '"[i]n retrospect, I should have. tried to
redact the information so to speak so as to have the homicide chargeread and
not the conspiracy charge . . ; because the conspiracy charge obviously
implicates people other than Mr. Cannon." (PCRAHeaiin..g NtT; 90-91).
Defendant admitted that the strategy in hie trial was that he was at the
scene of the crime, but was not involved in the commission of'bhe actual
homicide. (PCM.Hearing N.T� 6i). Moreover, in furtherance of that aim, Trial
Counsel. sought to be direct by admitting that Defendant had a criminal
background and that the jury may not like Defendant, but that Defendant did
not commit tb,e homicide. Id. Defendant further admitted that based on the
trial strategy and the physical evidence, that Trial Counsel's tactic of refurring
to Mr. Cannon's gQiltypleato the murder was a logicalchoice.
The crux of Defendant's contention seems to be that following the
employment of the above-stated tactic, the Court read Mr. Cannon's
information to the jury following opening statements and upon.later request
during deliberations. Defendant somehow conflates this argument, though
12
...., .. .......·-····
,_ ... ····"·-···-··--·--·-······ . · ·····-··------ . ···-·····"··----------·--------
I '
admittedly .at Tr.ial Counsel's own behest, into a violation of his Confrontation
Clause rightsl4,_
We reject Defendant's argumentfor .several obvious reasons. Fu.st, the
information to which Mx. Cannon pled guilty never specifically -or inferentially
..
identifies Defendant in the role of principal o� accessory. Next, at trial, the
remaining living victim of the crime specifically identified Defendant as the
person who shot him. (Trial N.T. 543)� Finally, the charges listed in Mi-.
Cannon's information were the same charges on which Defendant was being'
tried and the information was riot; entered into evidence, Therefore, we find
that the reading of the information to which Mr. Cannon pled guilty, which in
itself was corroborative of Trial Counsel's reference to Mr. Cannon's admission
of guilt, did not violate Defendant's Confrontation Clause rights.
With regard to an analysis of Defendant's claim for ineffective assistance
of counsel, we find. that the argument fails. While a motion in limine seeking
to restrict the language of the information disclosed to the jury may well have
been submitted and entertained by the Court, it is by no means a certainty
·· that such a motion would Iiave succeeded. Moreover, trial strategy does not
have to 'be successful in order to be effective. Trial Counsel clearly had .a
reasonable basis for referencing Mr. Cannon's gµ:ilty plea to the homicide as
this serves to bolster Defendant's alibi. Additionally, in light of the cumulative
evidence presented. at trial, including the Iiving' victim's identification .of
1" "The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourtee:nth
Amendment, guarantees the i;ight of a crlminal.defendant 'to be confronted with ·the witnessesagain�t
him.' The right of confrontation includes the tight to cross-examine witnesses. Therefore, where two
defendants are tried jo�ntly, th_e pretrial confession of one cannot be admitte.d against the other unless
tli.e confessing defend.ant takes the stand," Richardeon: v. Marsh, 4Sl U.S. 200, 206 (19.87)(citatio11s
omitted).
13
-------·----·--"-·----·-
Defendant, we find tp.:a.t Defendant has failed to show that an alt!3l·nativ_e
offered a: substarrtially greater pr.os:p ect for success,
Stipulatian fo the- ''Recanted" Report and Testimony of Offfcer Edward Kozicki.
Defendant next argues that ·'I.'rial Counsel was ineffective for stipulating
.to the supplemental report J)rovided by Officer· Edw�d. Kozicki. Offiee»
Kozicki, an officer who responded tothe police chase, claimed in his. report th�t
.he.had found a gun, later shown to be the murder weapon, a magazine to the
gun and .some cocaine in the area -around where Defend-ant. was. observed to
.have exited the Cadillac-SUV during the poliee chase. Officer Kozicki's irritial
·r_eport Indicated that he found the items on North 9th Street in Lebanon;
·' .however, in his supplementalreport, Officer .Kozick! stated that upon meeting
withthe districtattorney'soffice, he.realized that his initial report wasin error
and that he actually found the items at-North 7th Street in Lebanon.
Defendant testified at the POE.A Hearing - that he requested Trial
.Counsel.to.file a motion to suppress theintroduction of the.gun, to whichPrial
Counsel responded thathe did not file such a.mction because the issuewas one
of credibility for the· jury to determine. Defendant then tes:tilled that he was·
under the.dmpression that Trial, Counsel would g_et the opportunity to attack
the credibility of Officer. Kozicki -and the supplemental report during trial.
Several months later, Defendant received a lette:r: 'Trial Counsel .had sent to
t11$ district, attorney's
.
office stipulating to thesupplemental, report,
.
At t;ri�;
·upon. agreement of counsel and the district attorney's office, the following
'stipulation was read into-the record:
It is agreed th�t should Officer Kozicki testify he would indicate
the following; He searched. fhe portion of the. alleyway wherein the
bag of crack cocaine and . Makarov pistol were found. Officer-
Koeicki located. that bag of crack cocaine op the patch of grassin
l4
.. ·····------···-······ ·· ··-····--············-···--------
eaid alleyway near a'
set of concrete steps to the ±ight- side, of"
Exhibit '21. Officer .Kosicki 'placed this b.a,:g onto the adjacent curb.
Law enforcement subsequently photographed this bag of. crack
cocaine and secured it into· evidence for subsequent forensic
testing.
(Trial N.T'. 74). Defendant 'arguea that the lack of opportunity to CJ:'OSS-·
examine Officer Koz1cki asto why his report was changed was a big iS$U6.
'I'rial Counsel testified at the F°CR;A..H��ing_·that his-genenal strategyis
to limit the- amount of testimony from an officer who has found Incziminating
evidence, "I'rial.Oounsel. stated that he "didn'n seeanybenefitin having [Officer
Kozicki] sitting here telling the jury w hat he found and where he-found it when
we could just have that laid out as a fact, go onto the next subject basically"
without having. Officer: Kozicki testizy altogether. (P.CRA Hearing N.T. 97) ..
'!':rial .Counsel disagreed with Defendant stating that. "I thought-then I certainly
thin)r now that it. was more or· less insignificant detail" (P.CRA.'Hearin�· N.T.
98\
Defendant fa.il:s to explain how challenging the stipiilated .report. would
have
.
caused the .jury to weigh the evidence differently .. More .imp.orta;ntly,
·.
Defendant has failed to show any prejudice that he- suffered as a..reeult of the.
sti:i;>uJ.ation. Tria;l :Coµn,�el.had a ;r�as_on1=1;hle bas:is for the. stipu).'!ltion. so as to·
limit the extent of Officer Kozicki's testimony. Foregcing.the caution expressed
by Trial Counsel, Defendant would have elected.to place Officer Kozicki oh the
stand to attack credibility on the issue of· a .. single digit In a report to which
other evidence introduced at tdal supported, The danger clearly
accompanying such a strategy is haying an officer· of the law presentil;ig his .
report and offexirig first-hand: details of the discovery to ·thejury in the· hopes
of having him admit to amending his. report, Defendant fails to develop how
15
...... -·······------···-····--··- ---------- ------
such a strategy would provide a substantially greater opportunity for success.
Therefore, we find that Defendant's claim lacks merit.
Failure to Obiect to Commonwealth's Witness, Josephine Wolfe. and Her
Identification of Defendant
Defendant argues that his Trial Counsel was ineffective for his faihire to
object to thetestimony of the Commonwealth's witness, Josephine Wolfe; and
her identification of Defendant. Defendant contends that Ms. Wolfe never
.identdfied Defendant prior to hisjury trial or provided police with a statement.
Defendant cites to the police report indicating that police were initially in
contact with a friend of Ms. Wolfe, Paula Reber, who was anticipated to testify;
hut later refused. Ms. Rebe�; as indicated in the police reports, believed that
she and Ms. Wolfe had an encounter with.Defsndant on the morning of the
homicide ..
When l\lis. Wolfe's friend later refused to testify, Ms. Wolfe was.called, ·
During.her testimony; the district attorney handed Ms. WoJfe a photographic
lineup and asked her toidentify the person with whom she and Ms. Reber had
contact. Ms. Wolfe circled and initialed the face of that person, Upon the
district attorney's moving the do�t for admission of the marked photographic
lineup) Defendant's Trial Counsel objected and after sidebar discussions, the
Court sustained the objection and the lineup was not .admitted or published to
the jury for viewing. Ms. Wolfe did not provide. an in-court .identification of
Defendant.
We note, initially, that at the PCRA Hearing, Defendant incorrectly.
recalled the events that occurred at his jury trial. Defendant claimed that the
District Attorney had asked Ms. Wolfe "do you. see that man in the courtroom
today?" .and that Ms. Wolfe responded that she could. (PCRA N.T. 72).
16
····-··, ..···-··..·····-· ·· ·"····"-"•------·· . ···----
However; our review of the transcript reveals that Ms; Wolfs was never askeq
to identify Defendant in court, but instead, upon the Court's sustaining Trial
Co1U1seY s objection, the Commonwealth had no further questions for · Ms.
Wolfe.
Defendant acknowledgea that the lineup was not shown to the jury, but
contends that the fact that the jury saw.Ms. Wolfe mark and initial-the lineup
caused prejudice. Furthermore, Defendant maintains. that Trial Counsel
should have objected to Ms. Wolfe's testimony in whole since she had not
identified Defendant prior to trial and was not the individual with whom police
were .in communication. Defendant asserts. that i£ Trial Counsel had objected
prior'. to Ms. Wolfe's .testimony, he would not.have been prejudiced by her last
minute identification of Defendant.
We find no merit in Defendant's argument. Defendant baldly claims that
Trial Counsel was. ineffective for failing t.o object to ]Y.Is. Wolfe's teetimony
merely because "[t]here was no reason for the Commonwealth to call M�. Wolfe
as a witness." (Def.'s Br. 11). While it is reasonable to expect that Trial Counsel
should have anticipated Ms ... Wolfe's testimony and planned accordingly; we
fail to hold that such an, expectation should .include foreknowledge of the
Commonwealth's strategy; Trial Counsel is expected to counter the
Commonwealth's witness testimony and evidence in. defense of his client,
which is exactly what occurred. No mention in the transcript of Ms. Wolfe�s
testimony specifically identified Defendant and, more .importanfly, 'I'rial
Counsel successfully objected to the admission of Ms. Wolf.e's marked lineup
identification. Furthermore, Ms. Wolfe was identified in the police reports as
Ms. Reber's friend who it was believed had an encounter with Defendant on
the day of the homicide. We fail to see a reasonable basis. upon which Trial
17
·--------·-··----·····-··--··----.. - _
' i
Counsel should have objected to. Ms. Wolfe's 'testimony beyond, his action.s at
trial.
Failure to Obiect to Inadmissible· Evidence
Defendant. next- .claims that Trial Counsel was ineffective for- failing' to
'object to· inadmissible . evidence. Specifically, Defendant ar�es that Trial
Counsel should. have objected ·to the .irrtroduction of Rick ·Oannon.'s. bloody
clothes, .shoes and the gunshot report ('fGSR:') into evidence. Defendant opmes
that because Mr, Cannon's charges, including the conspiracy charge, had
already been read to the jury by the Court, the introductiorr of the bloody
clothes. and the. GSR indicating that Mr. C8J1D.6n had gunpowder residue on.
his hands served toprejudice him at' trial,
Tri:µ Counsel .explained at the PORA Hearingthat.the introduction of
the evidence served to .supporf the defense's theory ofthe case; To reiterate,
the strategy at trial was to bolster the idea that Mr. Cannon had committed
the actual
.. murder and
' . . '
that Defendant
.,•
was outside
. when :it occurred.
. . Trial
. .
Counsel stated that the introduction of the. evidence at trial showed that."E,:ick
·Cannon was: the· murderer .and blood on 'his clothing and gunshot residue
proved that he w.as the:one who was shooting gun," (PCRA Heating N..T. ·9.9).
We find that Defendant b.a:s failed to demonstrate. that an alternative
exiated that would have substantially created a greater potential for success.
As. Trial Counsel testified, the mtroduetdonof Mr. Cannon'sbloody clothes and
the GSR supported Defendant's theory of the case. � such, we find: that
Defendant has failed to show· that ·Trial Counsel was ineffective forfailing to
object to the admitted evidence.
18
. _ , ., ..__,
,,,_ ,, ,, ,, __.• ----
, ·------·---..----·-·-·--.. ·--.. , ., ..
.. .
Failure to Obiect to Commonwealth's Audio Recording of Co·Defendant's
Unredacted Statement
Defendant argues that Trial Counsel was ineffective for failing to object
to the Commonwealth's introductionof the audio recording of co . Defendant,
Akeita Harden's unredacted statement to thejury. Initially, duringthe trial,
Ms, Harden's redacted statement was read into the record by Detective
Michael DiPalo of the Lebanon County District Attorney;s Office on behalfof
the Commonwealth. Ms. Harden' s redacted statement included Traversezs
language when her statement referred directly to Defendant, but other
nicknames or aliases, which were at the time unknown to the jury, were not
redacted from tlie statement, Later In the trial, Ms. Harden testified on her
own behalf and during cross-examination, her statement was referenced. The
Commonwealth then recalled Detective Di.Palo back to the stand on rebuttal
and certain portions of an audio recording of a second interview with Ms.
Hardenwere played for the jury. Trial Counsel specifically objected so as to
limit the 'introductlon of the recording to those portions directed at rebuttal of
Ms. Harden's testimony. However, during the rebuttal testimony, the
Commonwealth specifically questioned Detective DiPalo about the nicknames
Ms. Harden, uaed for Deferrdazrt; which we:r�. -the same as those originally.
introduced in. Ms.
. Harden's
. . first statement.
. . . . .
Defendant testified at the PORA Hearing that Trial Counsel and the
attorney for ]V,fo. Harden informed Defendant that the statement would not be
played for the JUJ.�y. Defendant contends that Trial Counsel should have
objected to the specific use of nicknames referring to him in Ms. Harden's
is Com. u, 'I't<:werse,·76.B k2d 845 (Pa. 2001),.in: which the l?ennsylvaniaSupremeCourtheld that
·utilizing the phrase "the other man"·cor similar language), along with a ti'ialcourt's.cautipn� charge;
when introducing a non-testifying co-defendant's statement, which implicates the defendant, does not,
vielate a defendant's Corifrorrtatdon Clause rights,
19
··-···-····· ..·--········· ·-·····--·--··----··-----········-·----..-··· ···-· ··----------------
·
\ .
statement and that the statement should have been redacted as it pertains to
him..
We fail to see merit in Defendant's argument. Certainly, if Ms. Harden
did not testify, then only her unredacted statement, without any specific or
inferential reference to Defendant would be allowed· accompanied by
cautionary instruction as to the statement. However; once Ms, Harden
testified; and she became available for cross-examination, then the issue of
admission of her previous statement . no longer violates Defendant's
confrontation clause rights. Furthermore, the Commonwealth is assuredly
allowed to. 'request adrnission. of evidence, . including Ms. Harden's previously
recorded statement, in order to rebut Ms. Harden's testimony. Defendantfails
to provide a rationale under which Trial Counsel could have further objected
to the admission of Ms. Harden's statements.other than what he presented at
trial.
Failure to Properly Cross Examine Witnesses
Defendant contends that Trial Counsel was ineffective for failing
. ·.,
to
.properly cross-examine the living victim, Keith Crawford and the
Commonwealth's D.N.A. Expert>- Katherine Cross. Defendant contends that
the testimony of the two witnesses did not correlate and, in fact, were
contradictory. Defendant further alleges that Mr. Crawford was not truthful
in his testimony regarding· his involvement with illegal drugs and that Trial
Counsel was ineffective in his cross-examination of Mr .. Crawford about drug-
related items seized from the crime scene.
At trial, .Ms .. Cross testified that she found blood on the inside of the
barrel of the handgun believed to be the weapon used in crime. DNA testing
and analysis determined that the sample from inside the barrel was consistent
20
.......•. . ·-·--·····-···---·-··"····-·------·--··········-·------------ ·------------··---·
' .
w�th, that of Marcus Ortiz; the .horrricide victim. Furthermore, the l)resence of
the blood sample inside· the barrel indicated _tha t the .barrel of thegur» was ela.se
enough . .to the victim to experience blow back and that the bloodsample-found
would have been from the last person shot with the gun.
When Mr.. Crawford testified, he identified Defendant as the person who
shot him. When. questioned as to who was shot first, 1'4r. Crawford indicated.
that Mr. Ortiz was shot first, and then }le was shot afterward, Defendant·
argues that fhetesfimony is inconsistent and that Triaf-, Counsel shouldhave
. cross-examined .Mr. Crawford as- to the inconsistencies.
Defendant likewise argues, tl?-at Trial Counsel was ineffective :for f�ililig
to further cross-examine ·Mr, Crawford regarding his· illegal drug use and
.involvementwith illegal drugs. During his cross-examination ofiv.tr. Crawford,
·Trial 'Counsel specifically questioned Mr. Crawford as. to the preparation of
illegal drugs in the apartment prior to the day· 0£ the .crime. Mr; Crawford
denied thls occurred.
Defendant testified at the PCRA Hearing that he discussed attacking
Mr. Crawford's credibility on cross-examination, but, that Trial Counsel
refuaedand told Defendant "that he Wouldn't because he didn't w.ant to inflame
thej.uryu and. "make the _jury Iookat [Mr.. Crawford] anymore sym.patp.etically ."
·(PCR,4-.Hearing,N .T. 39). Furthermore, Defendant stated that he· wanted Trial
Counsel to. cross-examine Mr.. Crawford 'more 'vigorously regarding the
.. evidence of .illegal drug preparation in. the apartment in order to attack I\1r.
Crawford' a credibility.
Trial Counsel testified that he had concerns during Mr. Crawford's cross-
· examination 'because he had severe ·dis�bilities; as a .result of the .shooting and
.he did 'not want Mr. Crawford to appear more sympathetic to the jury. Trial
21
.....................,......••..,·---···--·--·········-··--·----·--······----------------- ----------------·--··-
Counsel explained his strategy to tailor cross-examination specifically to the
witness, eschewing harsh and aggressive cross-examination, so as not to
induce more sympathy for· the witness form the jury and prejudice Defendant
in the pro Gess.
We find that Defendant has failed to indicate how .an alternative strategy
would have offered a better opportunity for success. Trial Counsel had a
reasonable basis for the strategy employed in cross-examining Mr, Crawford
so as to avoid mflaming the ju:ry into further sympathetic feeling and avoiding
a more negative impact �pon Defendant. Moreover, the evidence ofillegal drug
preparation was· provided by the Commonwealth and described by the
Commonwealth's witnesses. Thefury was able to observe the evidence, along
with Mr. Crawford's testimony and Defendant has failed to demonstrate how
hewas prejudiced byTrial Counsel's strategy.
Defendant also claims that Trial Counsel was ineffective for not properly
cross-examining Ms. Cross as to any and all possible alternatives as to how his
DNA could have ended UI> on the handgun used as the murder weapon, Ms.
Cross testified at trial that the she found touch DNA samples on the grip of the
handgun that were consistent with Defendant, Ms; Harden and Mr. Crawford;
along with other .samples similar to Mr� Ortiz and Mr. Cannon and another.
unknown individual. Ms. Gross stated that the presence of unknown samples
is . not uncommon in items that are rtequently touched. During cross-
examination, Tri.al Counsel specifically referenced the DNA touch samples
from the grip. of the handgun and confirmed with Ms. Cross that at least five
people .had touched the gun from the.samples that were collected,
Defendant contends that Trial Counsel should have more. vigorously
cross-examined Ms. Cross as to how exactly bis DNA could have ended up on
22
·-····-·····...... --.-- . ·--··-·---·-.. _ . . ------------ ·---·----
the grip of the gun. Defendant testified at the PORA Hearing that gtllls were
passed around between :different individuals so that he could have touched the
gun weeks or even months prior to the homicide. However, Defendant claims
that Trial Counsel did not elicit such a possibility from Ms, Cross or even
attempt to proffer an alternative .as to how both his own and Mr. Cra,wford' s
DNA were both on the grip.
Defendant fails to demonstrate how a more. vigorous cross-examination
of Ms. Cross.in eliciting' an alternative as to.how touch DNA maybe transferred
onto the gripof the handgun would have offered a greater potential £or success.
Trial Counsel specifically questioned Ms. Cross as to the reliability .of the
database of DNA samples, the amount of people who were found to have
touched the handgun grip and as to the order of shootings alleged to have
occurred. Trial Counsel also allowed Defendant, duringhis testimony attrial,
to provide an explanation as. to why his DNA would be on the gun. Defendant
presented no evidence that Ms, Cross would have provided further SUJ?port for
his assertion and merely assumes the outcome of such questioning. Defendant
additionally fails to demonstrate how he was .Prejudiced by Trial .counsel's
inaction in further questioning Ms. Cross. An unfavorable verdict is not per se
evidence of prejudice.
Failure to Obiect to Commonwealth's .Improper Comments During Closing
Arguments
Defendant next argues that Trial Counsel was ineffective for failingto
object to alleged improper remarks made by the District Attorney during
dosing remarks, Specifically, Defendant alleges that during closing remarks,
the District Attorney stated that "every word out of your mouth is a .lie" and
"helied to yo1L' (Def/sBr. l8). Defendant complains that-T:rialCounselfailed
1
23
•'•"·····----·-.. ···--···· · ···--·--··-······-·-----·-···-···----·----·----------·-----------·---·-··-----··"······-····-----·-·····---
to object .immediately after ·the remarks were made and therefore, he was
pl.'ejudiced by the· attack on his credibility and the perception 0£ the jury that
he .. wasnet truthful ..
At the close .of the. trial, during discussions with the Court, Toi.al Counsel
specifically objected to the .comments made by the· District Attorpey and
requested a curative instruction. . The Court noted that we would give an
instructionthat "what the lawyers say or thinkthey.say isnot evidence: They
-a;:re opinions of whether people axe telling the t�th or not. It is .not evidence,"
('.I1rial N.T. 1147). In fact, during instruction, the Oourt gave the following
instruction to the jury: "What either Attorneys 'think, .say -they think or . give
opinion as to what is true- or not true is riot evidence," (Trial N.T-. 115·0).
Trial Counsel testified at:the·.PCRA. Hearing that hie.genenal practice is
not to interrupt the prosecutor's closing remarks, eventhough.hemight find
things objectionable, but' to tely more on curative instruction from tb,e Court.
Trial Counsel set forth three basis for his rationale. Ffrst, there is concern for
inflaming thejurywhen an objection ismade duringclosing remarks. Second,
Trial Counsel noted 'that he. did not wish to "get. a reputation of [objecting
during.closing
.
remarks]
. because . [he. didn't]. wan the DA. doingit to me." (PCM
�
Hear'ing .N.T; 106) .. Finally, Trial Counsel, referenced an.inherent level of
professional courtesy that is -observed in, the. profession for .such decorum
during opening: and closing remarks,
Our Supreme· Court has stated that:
Generally, a proseoutor's arguments to the.jm·y are not a basis for
·th,e granting .of -a .new ·trial unless 'the unavoidable effect of such
comments would be to· preju,�ce the jury, forming in thein minds
fixed.' bias and hostility· towards the. accused which would prevent
them from properly weighing the evidence and rendering a true
verdict .. Moreover, the 'prosecution, similar to· the defense, is
24
· · · ······ ····· ·· ---------------
____ _.
... __
.,_ ......·--···----·--·
_._
-
accorded reasonable latitude and may employ oratorical flair
arguing its version.of the case to the.jury; The arguments advanced.
must, however, be. based uponmatters in evidence and/or upon.any'
)�git.im.,ate. inferences that. -can be drawn therefrom, Finally, any
allegedly im.prope:rprosecutorial comments mustalso be examined
within the context .ofthe. conduct of defense counsel.
Com.. v. Jones, .683 A.2d 1181, 119·9 (Pa. 19Hq)(internal citations omitted).
We find that Defendant's claim lacks merit. Initially, we note that Trial
Counsel did indeed. object to the District Attbrney's statements. in his elosing
remarks, though .hefailed. to do so during t�e actual remarks. Trial Co�$el
expressed .several .reasons for waiting to object, 'includingprofessional. decorum
and caution to .avoid behavior that. might :im�ate
.. ..
oz; .inflame the jury .. ,., .. ::. . :;."..
<
Professional
. . . decorum and respect. for the procedures
. of the courtroom are
certainly- laudable characterfsties of judicial civility, but :Q.Ot necessarily
justi;ficatioµ for a.failure to adequately advocate on a.elient's behalf,..However;
avoiding' behavior 'in the .courtroom that !hight inflame bt' irntate thejl.ir:y is·.
more· aligned to the client's interests ae the behavior· ofthe advocate, -whether
for good orill, will certainly reflect upon the client ..
But not for .such reasons alonedo we find the claim. lacks merit .. Asnoted,
Trial Counsel did object· to the .staternenta and the· Court presented what we
felt was an appropriate curative dnstruction, though one already. in the·
standard instructions, to .addreas the objection: We likewise gave instruction
as tq. credibility, . stabing' that ''the matter of credibility of a witness, that· is,
whether his. or her testimony is b.eli�vable and accurate in whole or "in.part. is
solely for your determination," (Trial N.T .. l153)'. . A "trial court's curative
instruction is presumed to ·be. sufficient. to cute ·fl..ny' prejudice to [Defendant] /'
Com. v. Dennis, 715 A.2d 404, 410 (P.a. 1998)(citing Com. v. English, 699 A.2d
710 (Pa. 1B.9t)).
_25·
Moreover, we believe that the tim.ing ·of Trial Counsel's objection,
standing alone, cannot provide a basis to otherwise findmerit in:Defendan,es
claim. Our 'Superior Court .has stated, that "contemporaneity of objection is·
not insisted upon as a value in itself, rather it is required as. the most
convenient method of preventing a parl�y from permitting error to meirruate
'itself into therecord and complainingthexeafter ." Com. v. Griffin; 236..::37, 4i2.
A.2d 897; 901 (Pa.Super, 1979). We find. this languagecompelling as to Trial
Counsel's objection. The merefact that 'I'rialCounsel waited.until after closing'
.remarks to objectis
.
not error
. unless
.
his· failure to timely object resulted. in the
' ..
'
"unavoidableeffect" offormingprejudice thein the minds ofthejury, so asto
w •:
••
foster' "bias andhostility towards [Defendant] which wouldprevent-then fr.om
properly weighing the evidence, and .rendering a true verdict." Bee Com: v.
»Ianes, supra. Therefore; we will still address the· issue of the l)istrict
At.torney'·s statements as . though Triai Counsel failed to object at .all and:
determine whether, despite Tri� Counsel's allegedly mistimed objection, the
claim has underlying merit;
·;.
We: l:>egin by examining' the .statements made by the. District Attorney
during closing remarks. .First; the District Attorney, in discussing the
con£l:icting .sti:t�me:rit!:> in Defendant and Ms. Harden's testimony· stated the
following;
And again, [Defendant] claims he didn't 'have anything .in his
hands; [M.s� Harden] told you he had something in his hands, Yo�
can see for yourself.. He's got the paper: bag in, his hands as he. gets
out of the car· at '1th and Guilford Street. The reality is he li�d to
you.from the stand about that, among. other things, in addition to
the keys.
(Notes. of Testimony of October 13·,..20.15 ClosingStatemeats; "Closings N.T»'" at
'
70). At tria.J; the Commonwealth presented video from a .police. .eruiser fu.
26'
........ _._, ,., -·-·--·····-·--··--·------·----------------------------- -----�·--·-
pursuit. of-the Cadillac St.TV during the chase. A.$ part 'of the presentatien, still
photographs from the police video were included. (Tt:ial . N�·T� 58).. tn
questioning Officer Grose regarding the details of the pursuit and aftermath1
the District .Attorn�y presented a . sereenshot form the pursuit ·v.rdeo in which
an individual, alleged to be Defendant, exits the front, passenger .sid.e door of
the QadillacSUV and flees. (Trial.N�T.-69). The District Attorney thenpoints
out that the individual fleeingfrom .the -front;.passenger.,side door "appears-to
have something iii ·his hand," to which Officer Gross responds ''That's ccrrect,"
(Trial N.T. 59,): The screenshot photographs were enteredinto evidence and
presented to the jury .
... ·.i'. Ag�4i? our Supreme Court hasheld that, "prosecutorial misconduct will
not be found whe:re comments werebased on the evidence orproper inferences
therefrom or were only oratorical flair." Com. v·•. Jones, 668··A.2d 491� 514 (Pa.
1_995). The District Attorney presented evidence 1,1p-0n which ·he· based his
comments regarding the veracity of Defendant's statement. ''It is settled that
-ft ·is improper for a prosecutor to expressa personal belief as to the credibility
of the defendant or other witnesses." Com. u, ·Ob,miel, . 88.9 A.2d .501,.. 544 (Pr1.
.
2005). However, we. don't find that the District.Attorney's· comments express
s.uch a per.sop.al -optniori or ·b:ellef,. butthat he remarked on the 'inference to be
drawn from the evidence. presented.
Furthermore; prosecutorial remarks are to )�e analyzed in the broader
context .and we·must remember that. "the prosecutor-is permitted. to respond to
defense arguments and is free to present his. or 'her case with logical force. and
vigor." Com. u, Koehler, 73 7 �2d 225, 240 (Pa. 1999) .. During closing remarks,
Tt,tal Counsel re£erence.d the·. mconeistenciee between Defendant's testimony
and Ms. Harden's 'testimony and argued these inconsistencies indicate that
both.Defendant and Ms·. Harden were telling the truth. (Closin�s·l'1.T� 42-43)..
27
· -------,, - ----·-· . -- .._ . ---··-··---·
Th.e District Attq:r;�ey' s remarks regarding the inconsistencies between
Defendant's and Ms. Harden's testimony, coupled. with the .photogr9:-phic
evidence presented to the jury, signals more of a response to Trial Counsel
closing, remarks than necessarily" as commenting upon Defendant's credibility.
We do .not find, that the 'District Attor;ney's remarks were improper in. such
context.
Next, we .look at the other statement complainedofby Defendant. Trial
·counsel, in closing: statements, referenced Defendant's testimony and his
admission as· to· a criminal lifestyleand remarked that. "you really needto look
,at his testimony with excruciating' detail and really come to a conclusion as to
whether believable or not, whether ·he is credible or not .." .(Closings N.T.40.,.41).
Trial Counsel continued, in arguing Defendant's. credibility, that "[ojne ofthe
waysthatyou can-really )u�g� credibility is.when someone admits.things that
are harmful to them." (Closings N.T. 4i},. Trial Counsel continued stating that
Defendant "got: up and .admifted all, kinds of things: ..... He used the word
criminal to describe himself. I am a criminal. he .said,. and I've been once since. '
I was I fhing l3 he said .. That goes a.long waytoward credibility. (Closings. N.-T.
41"42) .. ·This statement is .aligned with the defense strategy throughout the
.tria;l t�a� Deferidarrt. admits criminal activrty, but denies .his personal
'itrvelvement.in the murder.
Later in 'the closing remarks; tlie District Attorney stated;
Eddie Williams, I don't evenknow where to begin with tl;ris guy.
He's got 10 prior theft-related offenses, burglary, two robberies . Be
tells. you about his. priorgun charges, 14 or more aliasnames that
he uses, nine dates ofbirth he referenced, multiple Boeial Becurity
Numbers. Thisguy, I'm going to suggest; to you, every word out of
his mouth is a lie, ·pretty much every time he.speaks. I don't know
.how else to classify it.
28.
·-----····------- ----·--···-
He's found by the Philadelphia.. Police department seven months
after·this happens, He instantly lies to them repeatedly about who
he is -so they can't .figure.:it out .. '.
Chief Leahy b;riµ.g-s him· back, I:te and Corporal Achey .interview'
him, .and he lies repeatedly, repeatedly. First denying he's even.
there, said. he found out' about it from somebody else, Just
;tidiculous answers thatthey knew wer.e not true. Eventually they·
say, look, come on, we know you're .not telling the truth; what
.4app.¢ned. All right. Andthen helies again .. lie·lies again. He says,
okay; wellLwasn't -- "Lwas there, hut I drove a rental car there.
myself and [Co-Defendants] then came over later on."
An right.. So he lies initially. "I'hen he s�ys, "All right, ru ten you
the truth.'�· Then he lies again, .and then gets on the. stand -.,. and
again, it�s. for youto figure out whathe wastrying to .say, Thenit-
sounds Iike.he's denyinghe ever made any statements to police a:t
all .. Initdally testified, ''I said that, butI was.lying" to eventually:"]
didn't -say a word to· those guys, they .are making this whole thing
up; they don't have me; on paper, the,y don't have a recording,
they've gotnothing," And again, bis own words onhis phone call:
·"Even·.ifI was fhere, Lwould have-said I wasn't there." Okay. What
does that tell you about him? That tells you he's going to lie to
everyone about everything no .matter' what. Doesn't matter. I'm
. going to lie· to you 110 matter what Lhave to say. That's the·way he
operates.
'(Closings N.T., ·81) .
A&�n,. we £.rid tha� :the Distri� Att'orney'::1 remarks poth .refer to the
testimony and evidence set forth at trial and respond �¢ctly to the defense
-str�tegy employed -throughout the· trial tha� Defendant was at- the scene, but
did ·not participate in the shootings. 'I'rial Counsel set forth the argument. that-
Defendant' s. admission to 'past criminal activity and even: to Ins own
characterization as a criminal, serve to ensure bis credibility otherwise. Out
Supreme Court recently reaffirmed the necessity fox: freedom of the prosecutor
''to .1:eslQon.d fairly t� the. arguments ofthe defense." Com. µ. Clancy, _ A.3d
_, 42 WAP 2011 at *'17 (Pa. Aug. 21_, 201S). In 'Commonuiecdtii u; Jo.hnson,
29'
..... ·-·--··--····-···-·-... -, _,..,._, ,., ,,_.,.,. .
____________, _
5.88-A.2d lS-03 (Pa. 1991).1 the Pennsylvania Supreme Court held thatin a case
where. the outcome involved
' . . a ·cxew.biJ.ity determination .by. the j_-ury,. and .the
prosecutor had repeatedly s.tated thatthe defendant had.lied, that "it would be
difficult to conceive. of any. other .approach.when closingto the jury than that
employed by theprosecutor here," Id. at 1307. The Court statedthat the jury
was acutely aware.of conflicting testimony and that the prosecutor's comments
merelyreinforcedthe.factthat thejury· had been presenter} conflictingstozies."
Id. We find the same result in the matte];' sub judice and therefore, the Diatrict
Attorneys comments during closing remarks were not improper.
Inclusion of Alleged· False· lnfotmatfon in- TriaZ CounseZ-�s Anders Brief to the
Superior Court
Defendant claims- that 'rrial Counsel provided false. information in his
Anders brief to ·the· Superior Court and that such false information.is al'ikely
reason -for the ·denial of Defendant's, 'appeal. Defendant .alleges that 'Trial
Counsel included in bis Anders brief that Defendant had admitted to begin in
the. 'houee at thetime of the shooting, but that someone else clid the shooting .
...
Defendant denies.any such .admission, during his ·testimoDY"�
Ill his Anders brief to tJ:ie Superior Court, Trial Counsel included in a
recall of the· facts emerging at trial that- Defendant "testified at trial that he
was ID; the· apartment at the time· the· ·shots were 'fired, but that another
individual, Eick CaX1.11on,. had actually fired the shots:" (Appellant'sBr. in 211 7
MDAiOI5 at 8). Indeed, we couldfind noreference in the record of Defendant's
testimony in. which he made such 'an admission. During his' tri.al, 'Defendant
testified that he left the-apartm.ent·.in order to obtain a phone that. was in the
vehicle and :that. as he· "was walking back towards the house, -and I heard
3-0:
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gunshots." (T:dai· N.'11. 951). Therefore, we find that Defendant's underlying
claim has merit:
.Trial Counsel's brief was filed neaiiy six months after the. transcripts of
the trial were filed to the record, Clearly, Trial. Counsel. had access to
Defendant's testimony, including Defendant's .denial that. he was inside the
apartment when shots were fired. As such, we find no .reasonable basis for
Trial Counsel's inclusion of the· false claim that Defendant had admitted to
being in. the-apartment when the shotewere fired,
Lastly, w.e, must determine whether Trial Counsel's error- _so prejudiced
Defendant fhat the result ofthe . proceeding would have been . different,
. ..butfor
Trial Counsel's action, Our best indicator of whether. such error caused
prejudice is to examine the Sup.erior Court's decision following the filing of
'trial Counsel's brief. ·we note -that while Trial Counsel's Anders .briefwas
examined and. referenced in the Superior Court's decision, it was _not
dispositive as to the· Court's independent analysis .. In fact; the Superior Court
stated. that "Our independent review of the reco:rd reveals no other issues of
arguablemerit," C9m. �- Williams; ·2117 MDA 20i5, 2016 WL 5'86$525, at *·5-
(Pa.Super. Aug... :24, 2016). Despite Defendant's claim, the Superior Court.had
the. oppor'turrity to .review the evidence and, testim.ony at trial -�d make an
independent determination of the facts. therefrom. We .ars thus unconvinced
that Defendant suffered. such pr.ejudic.� from. Tr-ral Counsel's inclusion of the
erroneous statement such that the result . of thedecision on appeal would have
been different.
Ashing Defendant About Past Ari"ests on the Stand
Finally, Defendant argues that 'I'rial ·Counsel was Ineffective in his
representation because .he referenced Defendant's past arrests for other
31
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crimes, Defendarrt alleges that . 'I'rialCounsel opened the door for the district
attorney to in,trocl.11ce further aspects ofhiscriminal record.
·At· his trial, Defendant testified on his own behalf: Trial Counsel began
his direct examina tion of Defendant by questioning .him .regardingp'ast arrests.
Defendant 'testified that· he had previously been arrested four times andbhen
.
proceeded to discuss two of his previousazrests. Upon cross-examination, the
Commonwealfh, questioned Defendant regarding. his other previous arrests
and then regarding. hia known aliases,
At .the PCRA Heating; Trial Counsel explained that "[i]t was our·.. plaµ
from thebeginning.not to hide [Defendant'sjbackground" .and the strategy was
to acknowledge: Defendant's criminal background to the j.ury so as to utr.y to
.separate in. then: mind their personal feelings as_ opposed to what they feel
Iegally," (PC-RA Hearing N.T. ... 109). Defendant admitted to certain .aspects of
the trial in which an admission . as to his criminal activities in the past were
-explanatory as to his behavior on the day bf fhe Iiomicide and. the events
thereafter. However, Defendant denied that; his criminal history was
·necessarily· admittedinorder to further the trial strategy.
We rind· that . Defendant, has failed· to prove that "an alternativ.e not.
choserr offered. a potentialfor success substantially greater than. the course
actually pursued." Com. v, 11.owatd, 719 A.2q 233, 237 (Pa. 1998). Trial
Counsel' stated that. the. understood strategy waa 'not to hide from Defendant's
background, butto concede past crimes and anunsavory lifestyle, in the.hopes
that tb:e jury would recognize· the admission and .understand that such an
admiasien does not necessarily implicate Defendant in. the crimes being. tried.
CONCLUSION
Defendant.has
. . failed to demonstrate that Trial Counsel's representation
was so ineffective- as to violate Defendant's constitutional rights. Raving found.
· such, we deny Defendant any relief cm. his claims. Accordingly, we will issue
an order consistent with the foregoing.
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