Com. v. King, J. ( 2015 )

J-S79016-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEROME KING, :
:
Appellant : No. 3136 EDA 2013
Appeal from the PCRA Order of October 18, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0401961-2006
BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.*
CONCURRING MEMORANDUM BY: STRASSBURGER, J.:FILED FEBRUARY 24, 2015
Because there is no arguable merit to Appellant’s contention that trial
counsel was ineffective, I concur and offer the following analysis.
In Commonwealth v. Penn, 562 A.2d 833 (Pa. Super. 1989), a panel
of this Court held that
the trial court abused its discretion in failing to examine
[the witness] for itself, in camera if necessary, in order to access
his credibility and to determine the nature, extent, and impact of
any attempts to intimidate [the witness] and prevent or alter his
testimony, or to otherwise make specific factual
determinations based upon sufficiently reliable
information which would support a conclusion that
important interests existed which would justify the partial
closure ordered.
Id. at 839 (emphasis added).
In this case, the trial court held an in camera hearing with the
detective, Detective Burns, involved in the case. Detective Burns told the
*Retired Senior Judge assigned to the Superior Court.
J-S79016-14
trial court that he has been involved “in excess of 20 murders and instances
where three witnesses have been killed.” N.T., 2/26/2008, at 145. More
specifically, Detective Burns told the trial court that these murders occurred
within “a particular group, of which we believe [Appellant] to be a part of.”
Id. With respect to Kinnard, Detective Burns stated that that Kinnard “was
a cooperating witness on another murder, he has since been relocated, he
was fine up until quite frankly he saw people in the gallery, and he’s just, for
lack of a better word, scared out of his mind right now for that reason.” Id.
at 147. Based on that hearing, the trial court concluded that it was
appropriate to clear the courtroom during Kinnard’s testimony.
I see no abuse of discretion in the way in which the trial court handled
the courtroom closure and do not read Penn to say that the trial court must
interview the witness prior to ordering a closure or partial closure of the
courtroom. Rather, Penn holds that the trial court needs more than
representations by the Commonwealth before ordering the closure.
Accordingly, because the trial court did not abuse its discretion, there is no
arguable merit to the proposition that trial counsel was ineffective.1 On that
basis, I would affirm the PCRA court’s order.
1
I recognize that the PCRA court held that the trial court erred in closing the
courtroom, but such error did not prejudice Appellant, and therefore trial
counsel was not ineffective. However, it is well settled that this Court may
affirm and order of the PCRA court on any basis appearing in the record.
See Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)
-2-
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(“[W]e may affirm the decision of the [PCRA] court if there is any basis on
the record to support the [PCRA] court’s action; this is so even if we rely on
a different basis in our decision to affirm.”).
-3-