Com. v. Jackson, T.

J-S37041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TYREE JACKSON :

:

Appellant : No. 418 EDA 2021

Appeal from the PCRA Order Entered January 25, 2021

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

No(s): CP-51-CR-0007006-2012

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 19, 2022

Appellant, Tyree Jackson, appeals from the January 25, 2021, order

entered in the Court of Common Pleas of Philadelphia County, which dismissed

Appellant’s first petition filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing. After a careful

review, we affirm.

The relevant facts and procedural history are as follows: Appellant was

arrested in connection with the armed robbery and shooting of Luther

Wilkinson (“Mr. Wilkinson” or “Wilkinson”), and represented by counsel, he

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* Former Justice specially assigned to the Superior Court.

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proceeded to a jury trial.1 The trial court has aptly summarized the evidence

offered at Appellant’s jury trial as follows:

[Wilkinson] testified at trial that Appellant’s co-defendant,

Tyrik Lark (“Lark”), called him [at] around 9:00 p.m. on January

23, 2012, while Wilkinson was inside [of] his second-floor

residence that he rented at *** North 27th Street, in

[Philadelphia]. Wilkinson had known Lark [for] about ten years

and previously loaned him money. On this occasion, Lark sought

to borrow $50.00, and Wilkinson agreed to extend him another

loan. About fifteen minutes after his initial phone call, Lark again

called Wilkinson to advise he was standing outside [of] Wilkinson’s

front door. Wilkinson retrieved $50.00 from a money pouch inside

[of] his room and descended the steps to the front door. Wearing

only “long johns,” Wilkinson had no intention of inviting Lark inside

and only “wanted to give him the money and go back upstairs.”

(N.T., 6/24/15, pgs. 9-14).

When Wilkinson opened the door and handed Lark the

money, Lark “push[ed] himself in,” grabbed Wilkinson’s arms, and

pushed him upstairs to his room. Appellant followed behind. Once

inside [of] the room, Lark confiscated Wilkinson’s money pouch

that contained at least $100.00, struck Wilkinson twice on the

head, and “ripped” a chain from Wilkinson’s neck that contained

“a lion pendant with a ruby in the mouth of it.” In the meantime,

Appellant blocked the door to Wilkinson’s room and pointed a gun

at Wilkinson. (N.T., 6/24/15, pgs. 15-22).2

2 Wilkinson was 66 years old at the time of the incident described

herein. (N.T., 6/24/15, pgs. 8-9). Lark was 29 years old, and Appellant

was approximately 32 years old. (N.T., 6/23/15, pgs. 4-5). In other

words, the senior victim was over twice the age of each of his two

intruders, one of whom pointed a loaded gun at the 66-year-old man

while the other beat and robbed him.

After beating and robbing Wilkinson, Lark instructed

[Appellant] to “get rid” of him because he knew Lark’s identity.

Appellant accordingly fired his gun and shot Wilkinson in his right

buttocks, whereupon Lark grabbed Wilkinson’s cellphone off a bed

and fled the premises. Appellant then pointed his gun directly at

Wilkinson’s head and pulled the trigger several more times, but

____________________________________________

1 Appellant was tried jointly with his co-defendant, Tyrik Lark, and the jury

convicted Lark of robbery and burglary.

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the gun failed to discharge[,] and Appellant soon fled downstairs

behind Lark. (N.T., 6/24/15, pgs. 24-28).

Luckily still alive, Wilkinson…went downstairs to where his

landlord, “Booni,” resided, and [he] asked Booni to call an

ambulance.3 Emergency responders and police subsequently

arrived[,] and Wilkinson was transported to Temple University

Hospital.4

3 Booni, whose real name is Paul Cothran, also testified at trial. Booni

owned the residence at *** North 27th Street and rented a second-floor

room to Wilkinson, who Booni knew as “Jamaica” because of his

Jamaican accent. On the evening of January 23, 2012, Booni heard a

gunshot and saw two people running from the premises. Booni

thereafter heard Wilkinson calling for him, went upstairs, and learned

that Wilkinson had been shot. Boonie testified that he had known Lark

since Lark “was a kid,” and that, although Boonie did not see the faces

of the two individuals running from his premises, he would have noticed

if Lark had been one of them. (N.T., 6/24/15, pgs. 180-84).

4 The parties stipulated that “on January 23rd of 2012, Mr. Wilkinson

was admitted at Temple University at 11:14 p.m. He was treated for a

single gunshot wound to the right buttocks and then released on January

24, 2012, the very next day, at 4:21 a.m.” (N.T., 6/24/15, pg. 198).

Upon his discharge several hours later, Wilkinson was taken

directly to police headquarters where he gave a statement and

identified Lark via photograph. (N.T., 6/24/15, pgs. 27-31). At

that time, Wilkinson did not yet know Appellant’s name. (Id. pgs.

32-35).

The Commonwealth also presented the testimony of several

Philadelphia police officers. Detective Brian Newell testified that

he took statements from Wilkinson within hours of the shooting

and that Wilkinson identified Lark in a photograph at police

headquarters. Detective Newell and fellow officers subsequently

executed search and arrest warrants at Lark’s home on January

24, 2012, during which they arrested Lark and searched his

cellphone. Lark’s cellphone data verified that Lark had called

Wilkinson twice on January 23, 2012,--once at 9:21 p.m. and

again at 9:33 p.m. (N.T., 6/24/15, pgs. 123-38).

Detective Edward Keppel testified that Wilkinson contacted

him several days after the shooting to advise he had learned

Appellant’s name was Tyree. Detective Keppel’s investigation

soon revealed that Appellant’s last name was Jackson, and upon

presenting Wilkinson a photo array on February 1, 2012,

Wilkinson promptly identified Appellant as the individual who shot

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him. Detective Keppel and fellow officers then executed search

and arrest warrants at a residence associated with Appellant, but

Appellant was not present. (N.T., 6/24/15, pgs. 155-64, 169).5

5 Detective Keppel additionally testified that, while officers assisted

Wilkinson “mov[e] out of his room” because he was “afraid” to remain

in the residence where he was shot, Wilkinson directed the detective to

a “.380 caliber fired cartridge case” that Wilkinson found inside the

premises. (Id. pg. 164).

Officer Gregory Wallace testified that between February and

April of 2012, he had surveilled several locations where Appellant

was known to congregate. On April 13, 2012, Officer Wallace and

his fellow officers discovered Appellant inside a vehicle at one such

location and placed him under arrest. Although Appellant initially

provided Officer Wallace [with] a false name, he eventually

disclosed his real name and stated, “You’re lucky you got me now

because I was outta here tomorrow. I was going back to Seattle.”

(N.T., 6/24/15, pgs. 187-93).

Detective William Urban testified that he was a “lineup

supervisor” at the Philadelphia police department, and that he

coordinated a lineup in which Wilkinson identified Appellant as the

person who shot him. According to Detective Urban, Wilkinson

identified Appellant without any hesitation. (N.T., 6/24/15, pgs.

104-10).

At the conclusion of the testimony and closing arguments,

the jury found Appellant guilty of aggravated assault, robbery,

burglary, unlawfully carrying a firearm, and possessing an

instrument of crime, but not guilty of attempted murder and

conspiracy to commit murder. The jury found Lark guilty of

robbery and burglary but not guilty of attempted murder,

conspiracy, aggravated assault, and possessing an instrument of

a crime. (N.T., 6/25/15, pgs. 52-56).

***

On October 26, 2015, the trial court sentenced Appellant to

10 to 20 years’ incarceration for his conviction of aggravated

assault, a consecutive term of 4 to 10 years’ incarceration for this

conviction of robbery, and a concurrent term of 4 to 10 years’

incarceration for his conviction of burglary.

On October 29, 2015, Appellant filed a motion for

reconsideration/reduction of sentence, which the trial court denied

on February 24, 2016. On March 14, 2016, Appellant filed a notice

of appeal to the Superior Court. On April 11, 2016, Appellant’s

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court-appointed counsel filed a statement of intent to file an

Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4).

Trial Court Opinion, filed 8/2/16, at 1-5 (footnotes omitted) (footnotes in

original).

While Appellant’s direct appeal was pending before this Court, Appellant

filed a pro se PCRA petition on April 29, 2016. The docket contains no entry

that this petition was forwarded to Appellant’s counsel.

Meanwhile, on November 8, 2017, this Court affirmed Appellant’s

judgment of sentence.2 Appellant did not file a petition for allowance of appeal

without our Supreme Court.

Apparently having held Appellant’s pro se PCRA petition in abeyance, on

March 18, 2019, the PCRA appointed new counsel to assist Appellant with his

PCRA petition. Following the grant of numerous continuances, on September

9, 2019, counsel filed an amended PCRA petition, and on August 20, 2020, he

filed a supplemental PCRA petition. The Commonwealth filed motions in

opposition to both filings.

On November 24, 2020, the PCRA court provided Appellant with notice

of its intent to dismiss Appellant’s PCRA petition under Pa.R.Crim.P. 907

without an evidentiary hearing. By order entered on January 25, 2021, the

PCRA court dismissed Appellant’s PCRA petition, and this counseled appeal

____________________________________________

2 On appeal, Appellant argued the mandatory minimum sentence imposed by

the trial court was illegal. We found no merit to his claim.

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followed on February 24, 2021. All Pa.R.A.P. 1925 requirements have been

met.

On appeal, Appellant sets forth the following issues in his “Statement of

the Questions Involved” (verbatim):

1. Did the PCRA Court err and/or abuse its discretion when it

denied appellant/defendant’s petition under the PCRA seeking

relief based upon a claim that trial counsel was ineffective for

failing to object when trial counsel for appellant’s co-defendant

asked a question which elicited inculpatory hearsay testimony

which would have been otherwise inadmissible, and where

counsel failed to request a limiting jury instruction even if that

evidence was properly admitted?

2. Did the PCRA Court err and/or abuse its discretion when it

denied appellant/defendant’s petition under the PCRA seeking

relief based upon a claim that trial counsel was ineffective for

asking questions which elicited inculpatory hearsay testimony

which would have been otherwise inadmissible, and where

counsel failed to request a limiting jury instruction even if that

evidence was properly admitted

Appellant’s Brief at 4 (suggested answers and footnotes omitted).

Our standard and scope of review is as follows:

When reviewing the propriety of an order pertaining to PCRA

relief, we consider the record in the light most favorable to the

prevailing party at the PCRA level. This Court is limited to

determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of

legal error. We grant great deference to the PCRA court’s findings

that are supported in the record and will not disturb them unless

they have no support in the certified record. However, we afford

no such deference to the post-conviction court’s legal conclusions.

We thus apply a de novo standard of review to the PCRA [c]ourt’s

legal conclusions.

Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa.Super. 2018) (internal

citations and quotation marks omitted).

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Initially, we note this appeal presents a problematic procedural posture

in that Appellant’s pro se PCRA petition was filed on April 29, 2016, while

Appellant’s direct appeal was pending before this Court and Appellant was

represented by counsel. Thus, Appellant’s pro se petition was filed

prematurely; that is, before his judgment of sentence became final. 42

Pa.C.S.A. § 9545(b)(1) (indicating a PCRA petition “shall be filed within one

year of the date the judgment becomes final”); 42 Pa.C.S.A. § 9545(b)(3)

(indicating “judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.”). Moreover, his pro se petition violated the prohibition against

hybrid representation. See Commonwealth v. Mojica, 242 A.3d 949

(Pa.Super. 2020).

Accordingly, “we note that the PCRA court was mistaken in treating

Appellant’s pro se PCRA petition as a valid pleading under Pennsylvania law

and would ordinarily call for this Court to vacate the order adjudicating [the

PCRA] claims.” Id. at 953 (citing Commonwealth v. Willis, 29 A.3d 393,

400 (Pa.Super. 2011) (vacating order entered on PCRA petition that violated

hybrid representation); Commonwealth v. Leslie, 757 A.2d 984, 985

(Pa.Super. 2000) (vacating order entered on prematurely filed PCRA

petition)). The PCRA court should have dismissed the pro se PCRA petition

without prejudice to Appellant’s ability to re-file it when his judgment of

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sentence became final or otherwise treated it as a legal nullity. See Mojica,

supra.

Moreover, we note that Pa.R.Crim.P. 576(A)(4) required that a time-

stamped copy of Appellant’s pro se PCRA petition be forwarded to both

Appellant’s counsel and the Commonwealth within ten days of receipt.3

However, the docket and certified record provided to us in the instant case is

silent as to whether this service ever occurred.

Recently, this Court addressed an appeal with a procedural posture

similar to the one at bar. Specifically, in Mojica, supra, the appellant filed a

premature PCRA petition pro se; the clerk of courts failed to forward the pro

se petition to the parties; the lower court held the petition in abeyance; and

after the appellant’s judgment of sentence became final, the lower court

permitted counsel to file an amended PCRA petition.4

In analyzing the procedural matter in Mojica, this Court relevantly held:

The [procedural] issues are not merely formalistic. As with

all PCRA petitions, [the] [a]ppellant must satisfy the jurisdictional

requirements underlying the PCRA, which includes timeliness.

Specifically, all PCRA petitions must be filed “within one year of

the date that the judgment becomes final[.]”

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3 Pa.R.Crim.P. 576(A)(4) requires the clerk of courts to accept and docket pro

se filings; however, the commentary to the rule suggests such action is taken

only to provide a record of the filing and does not trigger any deadline nor

require any response. Pa.R.Crim.P. 576, at cmt.

4 As in the case sub judice, the counseled amended petition in Mojica was

filed after the time for the appellant to technically file a timely PCRA petition.

Mojica, 242 A.3d at 954.

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In the intervening [years] following [the] [a]ppellant’s pro

se filing, his sentence became final and his window in which to file

a valid PCRA petition expired. See 42 Pa.C.S.A. § 9545(b)(1). Due

to the PCRA court’s misapprehension concerning the validity of

[the] [a]ppellant’s pro se petition and the violation of Rule

576(A)(4), [the] [a]ppellant’s amended petition was not actually

filed until it was technically untimely under the PCRA.

While acknowledging the significant procedural issues posed

by [the] [a]ppellant’s initial pro se petition, we emphasize that

these faults are directly attributable to the PCRA court’s error.

This misstep was further exacerbated by the failure of the clerk of

courts to provide a copy of this pro se filing to the parties pursuant

to Rule 576(A)(4). Under these circumstances, we conclude that

it would be unjust to consider [the] [a]ppellant’s pro se petition

as a legal nullity.

Furthermore, “[o]nce counsel has been appointed for an

indigent petitioner, the rules of criminal procedure further

contemplate after reviewing the certified record appointed counsel

may…elect to raise additional issues beyond those which the

petitioner raised in the initial pro se filing.” Commonwealth v.

Padden, 783 A.2d 299, 308 (Pa.Super. 2001). Thus, PCRA courts

are invested with great discretion to permit the amendment of a

post-conviction petition. See Pa.R.Crim.P. 905(a) (“The judge

may grant leave to amend or withdraw a petition for post-

conviction collateral relief at any time. Amendment shall be freely

allowed to achieve substantial justice.”).

Under these circumstances, we will deem that the numerous

entries of appearances and PCRA filing extensions entered by the

PCRA court…properly extended [the] [a]ppellant’s time in which

to file an amended petition. See Pa.R.Crim.P. 905(a); see also

Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa.Super.

2003)[.] As such, we will address the merits of this appeal.

Mojica, 242 A.3d at 954-55 (citations and footnotes omitted).

As in Mojica, we conclude there were breakdowns in the PCRA court as

it related to Appellant’s pro se PCRA petition such that it would be unjust to

consider Appellant’s pro se PCRA petition a legal nullity. Specifically, the PCRA

court held Appellant’s prematurely filed pro se PCRA petition in abeyance, and

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the clerk of courts failed to forward the pro se document to defense counsel.

Further, after this Court affirmed Appellant’s judgment of sentence, the PCRA

court appointed new counsel to assist Appellant, granted various extensions

of time, and effectively permitted Appellant to file a counseled amended PCRA

petition, as well as a supplemental PCRA petition. As such, we find Mojica to

be on point, and we shall proceed to examine the merits of Appellant’s appeal.

Appellant’s claims present allegations of ineffective assistance of trial

counsel. Accordingly, we apply the following well-established legal principles:

In order to be eligible for PCRA relief, the petitioner must

prove by a preponderance of the evidence that his conviction or

sentence resulted from one or more of the enumerated

circumstances found in Section 9543(a)(2), which includes the

ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).

It is well-established that counsel is presumed effective, and

to rebut that presumption, the PCRA petitioner must demonstrate

that counsel’s performance was deficient and that such deficiency

prejudiced him. To prevail on an ineffectiveness claim, the

petitioner has the burden to prove that (1) the underlying

substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis

for his or her actions or failure to act; and (3) the petitioner

suffered prejudice as a result of counsel’s deficient performance.

The failure to satisfy any one of the prongs will cause the entire

claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

We need not analyze the prongs of an ineffectiveness claim

in any particular order. Rather, we may discuss first any prong

that an appellant cannot satisfy under the prevailing law and the

applicable facts and circumstances of the case. [C]ounsel cannot

be deemed ineffective for failing to raise a meritless claim.

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Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(citations omitted). See Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d

409, 419 (2009) (“A failure to satisfy any prong of the ineffectiveness test

requires rejection of the claim of ineffectiveness.”) (citation omitted)). “A

claim has arguable merit where the factual averments, if accurate, could

establish cause for relief.” Commonwealth v. Stewart, 84 A.3d 701, 707

(Pa.Super. 2013) (en banc) (citation omitted).

Further,

To demonstrate prejudice, the petitioner must show that

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

unprofessional errors, the result of the proceedings would have

been different. [A] reasonable probability is a probability that is

sufficient to undermine confidence in the outcome of the

proceeding.

Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294, 311-12 (2014) (citations,

quotation marks, and quotations omitted).

In his first issue, Appellant contends trial counsel was ineffective in

failing to object and/or seek a curative instruction when Appellant’s co-

defendant’s counsel, Paul Michael DiMaio, Esquire, asked a question, which

elicited inculpatory inadmissible hearsay testimony. Specifically, Appellant

contends Attorney DiMaio improperly cross-examined Wilkinson about a

“somebody” who told him that a man named “Tyree” was the second robber.

Appellant contends that Wilkinson’s testimony “relating to the fact that

‘somebody’ told Wilkinson that ‘Tyree’-i.e., [Appellant]-was the second man

involved in the robbery” was inadmissible hearsay, and therefore, his trial

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counsel should have objected and/or requested a curative instruction. See

Appellant’s Brief at 33. He further contends “the only evidence…linking

[Appellant] to these crimes is the identification by Wilkinson….His

identification of [Appellant] is…strained as he concedes that he does not know

[Appellant], and he did not identify him until after someone else told him that

[Appellant] was one of the culprits.” Appellant’s Brief at 33-34. Accordingly,

he contends he was prejudiced by counsel’s omission.

In rejecting Appellant’s ineffective assistance of counsel claim, the PCRA

court relevantly indicated the following:

At trial, counsel for co-defendant Lark (Mr. DiMaio) cross-

examined the victim, Mr. Wilkinson, about his identifications of

Appellant. Mr. Wilkinson had testified on direct examination that,

while he knew Mr. [Lark] personally on the date of the robbery,

he did not know the identity of the other male with Mr. [Lark].

(N.T., 6/24/15, p. 31-33). He said that he told the police on that

day that he was unable to identify the second male.

[Assistant District Attorney]: So, you sign that

photograph [referring to Mr. Lark]. You say this is

Tyrik Lark. Okay.

What about [Appellant], did you know

[Appellant’s] name that day?

MR. WILKINSON: No, sir.

Q: At any point, sir, did you find out his name?

A: Yes. Somebody told me.

[Appellant’s trial counsel]: Objection.

THE COURT: Overruled.

Q: You get this information. Sir, do you tell the police

this information?

A: Yes, sir.

Q: When you tell the police, what do you tell them

about [Appellant]?

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A: I told them that somebody told me that—

THE COURT: Okay. That’s sustained. [ADA], come

on.

Q: Understood, Your Honor. So, you tell them that

information?

A: Yes, sir.

(N.T., 6/24/15, pgs. 32-33).

Mr. Wilkinson went on to testify that he subsequently told

police the name that “somebody” told him, and he then identified

Appellant’s photograph [from an array] as the person who shot

him. (N.T., 6/24/15, pgs. 33-34). Mr. Wilkinson identified

Appellant as the shooter again at a subsequent lineup. (N.T.,

6/24/15, pgs. 34-35). Mr. Wilkinson identified Appellant as the

shooter again at the preliminary hearing and then at trial. (N.T.,

6/24/15, pgs. 35, 14).

On cross-examination, co-defendant’s counsel, Mr. DiMaio,

inquired further as to this third party.

MR. DIMAIO: So, the next question was, Can you

describe the other male? The answer: Black male,

dark shirt, wearing a black coat. I don’t know him.

20s. Does that sound right?

MR. WILKINSON: I didn’t know him.

Q. So you didn’t know him, and you didn’t know his

name; is that correct?

A. No. I didn’t know his name.

Q. So at what point did you hear that it might be a

man by the name of Tyree?

A. Somebody told me that.

Q. When was this? I’m not asking who or how it was

said to you. I’m asking how long after you gave this

statement was it told to you?

A. I think a couple of days.

Q. Couple of days?

A. Two days.

Q. So was it before your second statement that you

met with the detectives? You remember giving a

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second statement about a week or so later, correct,

to the police? You met with them again?

A. It’s before.

Q. After this statement but before the second

statement?

A. Yes, sir.

N.T., 6/24/15, at 41-42.

Appellant asserts that [his] trial counsel, Mr. Seay, was

ineffective for failing to object [to] this testimony on cross-

examination by [Appellant’s co-defendant’s] counsel, Mr. DiMaio.

***

“The admission of evidence is a matter committed to the

sound discretion of the trial court, and the court’s evidentiary

decision will not be overturned absent an abuse of that discretion.”

Commonwealth v. Edwards, 588 Pa. 151, [903 A.2d 1139,

1156] (2006) (citations omitted). Hearsay is an out-of-court

statement of a “declarant” that “a party offers in evidence to prove

the truth of the matter asserted in the statement.” See Pa.R.E.

801. Hearsay “is admissible at trial unless it falls into one of the

exceptions to the hearsay rule.” Commonwealth v. Charlton,

902 A.2d 554, 559 (Pa.Super. 2006). “Hearsay evidence is

presumed to be unreliable because the original declarant is not

before the trier of fact, and therefore, cannot be challenged as to

the accuracy of the information conveyed.” Commonwealth v.

Fransen, 42 A.3d 1100, 1112 (Pa.Super. 2012) [(en banc)

(citation omitted)]. “Exceptions to the hearsay rule are premised

on circumstances surrounding the utterance which enhances the

reliability of the contents of the utterance, and render

unnecessary the normal judicial assurances of cross-examination

and oath.” Id.

….[I]t is well-established that an out-of-court statement

offered not for its truth, but to explain the witness’s course of

conduct, is not hearsay. Commonwealth v. Johnson, 615 Pa.

354, 42 A.3d 1017, 1035 (2012).

Out-of-court statements offered to explain a course of

conduct is not uncommon when a party is attempting to show why

there was a lapse in time in a police investigation, or how and

when a particular individual was identified as a perpetrator. [Our

Supreme Court has held that an] officer’s testimony [explaining]

why he continued an investigation based upon his conversation

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with a third party was offered not for the truth of what the third

party told him, but to explain the course of his investigation.

Commonwealth v. Rega, [593 Pa. 659], 933 A.2d 997, 1017

(2007)….“[I]t is a longstanding rule of jurisprudence that an out-

of-court statement offered to explain a course of conduct is not

hearsay.” Commonwealth v. Dargan, 897 A.2d 496, [500]

(Pa.Super. 2006) [(quotation marks and quotations omitted)].

Here, Mr. Wilkinson was asked by the prosecutor about the

timing of his initial identification of Appellant, which happened

almost a week after the robbery. [Appellant’s trial counsel

objected to the initial question, and the trial court overruled the

objection.] [Mr. Wilkinson then] explained why he returned to the

police and when he learned of Appellant’s name. The fact that he

learned of Appellant’s name through a third party [was not offered

for the truth of the matter asserted]. Because this testimony only

elaborated on how he identified Appellant to the police, it was

admissible to explain his course of conduct during the

investigation.

Thereafter, on cross-examination, [Appellant’s co-

defendant’s] counsel was attempting to get the witness to commit

to the point in time when he either knew or didn’t know of

Appellant’s identity, and he specifically instructed the witness not

to tell him who may have given him Appellant’s name or how it

was said to him. Clearly, this line of questioning [on cross-

examination] was relevant to explain why the witness waited for

close to a week after the robbery to identify Appellant. Appellant’s

counsel had already objected to this line of questioning on direct

examination, and although his objection to the mere explanation

of learning Appellant’s name through a third party was initially

overruled, [the trial court] sustained when Mr. Wilkinson was

about to repeat the third party’s actual statement. (N.T., 6/24/15,

pgs. 33-34). The cross-examination questions posed by

[Appellant’s co-defendant’s] counsel stayed within the same

parameters; namely, an explanation of the timing of Mr.

Wilkinson’s eventual identification of Appellant as the shooter.

Inasmuch as Appellant’s trial counsel would have had no

basis for lodging an objection at the aforesaid point in cross-

examination by [Appellant’s co-defendant’s] counsel, he cannot

be found ineffective for failing to do so.

Further, trial counsel was not ineffective for failing to

request a limiting jury instruction concerning Mr. Wilkinson’s

mention of a “somebody” who told him Appellant’s name.

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The trial court held a charging conference wherein

Appellant’s counsel made a request for a Kloiber[5] charge,

“based on [his] client’s request to make the Kloiber charge,”

indicating that although counsel did not believe the charge was

appropriate, he was protecting the record for his client. (N.T.,

6/25/15, pgs. 7-8). The court disagreed with the request,

however, [it] did give the [standard] jury instruction concerning

identification testimony/accuracy in doubt. The jury was

instructed to consider the details surrounding Mr. Wilkinson’s

identification of Appellant, including whether he had a good

opportunity to observe the perpetrators of the offense; whether

he’d made any prior identifications of the defendants as the

perpetrators; whether his identification was positive or rather was

it qualified by inconsistency; and whether he’d identified anybody

else as one of the perpetrators. Furthermore, the jury was

instructed that they should consider “all of the evidence relative

to the question of who committed this crime, including the

testimony of any witnesses from which identity or nonidentity of

the perpetrator of this crime may be inferred.” (N.T., 6/25/15,

pgs. 24-25).

The…aforesaid jury instruction accurately and clearly

presented the law to the jury and was sufficient to guide the jury

in its deliberations. The jury, therefore, was properly instructed

on how to receive Mr. Wilkinson’s identification of Appellant.

However, even if [Appellant’s trial] counsel had requested a

limiting instruction concerning this “somebody” who gave

Appellant’s name to Mr. Wilkinson, it would have been within the

[trial] court’s discretion to do so. Appellant cannot show that he

was prejudiced in any way, or that the outcome of the trial would

have been different but for the lack of a limiting instruction.

***

Here, [Appellant was not prejudiced] in the admission of the

testimony or the failure to request a limiting jury

instruction…insofar as [Wilkinson] made multiple identifications of

Appellant to the police and in court, notwithstanding his

____________________________________________

5 Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954).

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identification of Appellant’s photograph.[6] It would defy logic to

believe that Appellant’s conviction hinged on [Wilkinson’s]

statement that “somebody” told him Appellant’s name. Appellant

is unable to show that he was prejudiced by counsel’s actions in

any way; he certainly cannot show that an additional objection

here would have resulted in any different outcome.

PCRA Court Opinion, filed 5/13/21, at 6-13 (citations and footnote omitted)

(footnotes added).

We agree with the PCRA court’s sound reasoning. Specifically, we agree

there is no arguable merit to Appellant’s underlying claim, and thus, his

ineffectiveness claim fails on this basis. Johnson, supra. Further, we agree

with the PCRA court that Appellant has failed to demonstrate that he was

prejudiced by counsel’s omission. See Spotz, supra.

The record reveals Wilkinson had a full view of Appellant, who attempted

to shoot him in the head. The victim positively identified Appellant as one of

the robbers in a photo array, a prison lineup, and in court. Appellant has failed

to demonstrate that the fact “someone” told Wilkinson a man named “Tyree”

was one of the shooters does not establish a reasonable probability that, but

for counsel’s omission, the result of the proceedings would have been

____________________________________________

6 We note there is no dispute, and Appellant admits, that after Wilkinson

informed the police that “someone” told him the second robber’s name was

“Tyree,” “Detective Keppel identified [Appellant] as this ‘Tyree’ and placed his

photo in an array with several other individuals. Wilkinson then identified

[Appellant’s] photo and subsequently identified him at a lineup after being

shown this photo by police.” Appellant’s Brief at 44.

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different. Spotz, supra. Accordingly, Appellant is not entitled to relief on his

first claim.

In his next issue, Appellant contends trial counsel was ineffective for

asking questions, which elicited inculpatory inadmissible hearsay testimony,

and to the extent the evidence was admissible, for failing to request a limiting

jury instruction. Specifically, Appellant contends his trial counsel improperly

elicited testimony on the cross-examination of Wilkinson regarding

“somebody” telling Wilkinson that Appellant was one of the men involved in

the robbery. See Appellant’s Brief at 47. He further contends that, after trial

counsel elicited the testimony, he should have requested “a limiting jury

instruction regarding the jury’s permissible use(s) of the testimony relating to

the fact that ‘somebody’ told Wilkinson that ‘Tyree’-i.e., [Appellant]-was the

second man involved in the robbery.” Id.

In rejecting Appellant’s ineffective assistance of counsel claim, the PCRA

court relevantly indicated the following:

Appellant’s trial counsel (Mr. Seay) also cross-examined Mr.

Wilkinson extensively about each interaction he had with [the]

police subsequent to the robbery. As set forth herein, the timing

of his initial identification of Appellant to police was at issue. In

attempting to get the witness to commit to the timing of when he

identified Appellant, the witness instead offered that he talked to

detectives either two or three times. Again, trying to get the

witness to be specific in his responses, trial counsel had the

following [exchange] with [Wilkinson during cross-examination]:

MR. SEAY: Do you recall speaking to Detective Keppel

and providing him with a name Tyree?

MR. WILKINSON: Yes, sir.

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Q: When you spoke to the detective that day, he had

you come in the next day to make an identification of

a photograph, correct?

A: No. The same night when I talked to [the]

detective, I was looking at the computer. He

show[ed] me the computer. He said, Look if you see

the man who rob[bed] you and g[ave] the order to kill

you.

Q: Okay.

A: When I was looking at it, I saw the picture of

Tyrik[,] and I said, This is the man.

THE COURT: You saw the picture of who? Mr. Lark or

[Appellant]?

A: Mr. Lark.

MR. SEAY: Then there came another time that you

made an identification that you said was [Appellant],

correct?

A: [Appellant] do what?

Q: I’m asking you, sir, if you ever made an

identification of a photograph of [Appellant]?

A: (Nodding)

Q: That’s a yes?

A: Yes. When I go to the prison to point—when I go

to the prison to point him out.

(N.T., 6/24/15, pgs. 73-74).

Trial counsel then directed the witness’ attention to the

photograph rather than the line-up. He showed the witness the

photograph of Appellant that the witness signed on February 1,

2012, and the witness agreed that he did not sign the photograph

on that date. Thereupon, trial counsel had the following exchange

with the witness:

MR. SEAY: Okay. And that’s when you were in the

police district with the detectives, correct?

MR. WILKINSON: Yes, sir.

Q: But the day before that, you spoke to police

officers—I’m sorry—to detectives, and gave them a

name, Tyree. Do you remember doing that?

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A: The day before?

Q: Yes, sir.

A: The time when I talked to the detective is when

this person t[old] me that the guy who shot me, his

name was Tyree. But when I see the picture, I know

it was him who shot me.

Q: So, the answer to my question is, you spoke to the

detective the day before. Before you signed that, you

spoke to the detectives, right?

A: When I see the picture.

Q: Who was the person that told you it was Tyree?

A: It’s a man [that] tells me that.

THE COURT: Answer the question. Who told you?

A: Who told me that? It’s a man [that] told me that.

Q: What’s the man’s name?

A: It’s a man that sells things on the road [that] tell[s]

me that.

Q: What’s the man’s name?

A: I can’t remember hi[s] name right now.

Q: Did you ever tell the detectives the man’s name?

A: No. I didn’t remember his name.

Q: When you talked to the detectives that day and

said that it was—somebody told you Tyree, you didn’t

know his name that day?

A: No. I told him that—

[ADA]: Objection, asked and answered.

THE COURT: Overruled.

A: I told him that Tyree is the one who g[ave] the

order to do that and the one tells me---the friend that

Tyree had that shoot me is named Tyree, too. That’s

what he told me.

(N.T., 6/24/15, pgs. 77-79).

This line of questioning by trial counsel is repetitive of both

the Commonwealth’s direct examination and [Appellant’s co-

defendant’s] counsel’s cross-examination as described heretofore.

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In addition, Detective Keppel testified that Mr. Wilkinson

contacted him several days after the shooting to advise that he

had learned that the shooter’s name was “Tyree.” Later, when

the detective presented Mr. Wilkinson with a photo array, he

identified Appellant as the man who shot him. (N.T., 6/24/15, pgs.

156-61, 169). Detective Urban subsequently coordinated the

lineup in which Mr. Wilkinson identified Appellant as the shooter,

and he testified that Mr. Wilkinson made the identification of

Appellant without hesitation. (Id., pgs. 107-08). Again, at trial,

Mr. Wilkinson identified Appellant as the shooter—again without

hesitation. (Id., pgs. 14, 25-28).

It is illogical to believe that Appellant’s conviction hinged on

Wilkinson’s testimony that “somebody” told him Appellant’s

name….Trial counsel’s follow-up questioning in this regard was

merely repetitive of the information properly entered into

evidence. There would have been no reason for counsel to request

a limiting instruction from the court where the testimony elicited

was admissible evidence.

Again, even if this testimony was improperly admitted,

[Appellant has not demonstrated any] impact on the unequivocal

identifications of Appellant as the shooter. Trial counsel’s

questions concerning the identity of this third party are similarly

of little evidentiary value, and certainly caused no prejudice to

Appellant. If anything, trial counsel succeeded in showing that

[Wilkinson] either had a lapse in memory or was deliberately

withholding the identity of this third party. Appellant cannot show

that he suffered any prejudice by this line of questioning.

PCRA Court Opinion, filed 5/13/21, at 13-16.

We agree with the PCRA court’s sound reasoning. Specifically, we agree

there is no arguable merit to Appellant’s underlying claim, and thus, his

ineffectiveness claim fails on this basis. Johnson, supra. Further, we agree

with the PCRA court that Appellant has failed to demonstrate that he was

prejudiced by counsel’s actions. See Spotz, supra. Accordingly, Appellant

is not entitled to relief on his claim.

For all of the foregoing reasons, we affirm.

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Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2022

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