Com. v. King, J. ( 2015 )

J-S27021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 2533 EDA 2014
Appeal from the PCRA Order of August 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0706191-2005
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 28, 2015
Appellant, Jerome King, is serving a life sentence for murder. King’s
PCRA1 case returns to this Court for the second time. In his prior appeal, we
held that the PCRA court erred in granting King and his codefendant,
Esheem Haskins, new trials. On remand, the PCRA court denied relief on
King’s remaining claims. Upon review, we affirm in part, vacate in part, and
remand.
In King’s direct appeal, we stated the background of the case as
follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
J-S27021-15
On February 2, 2005, [King] came up from behind Nathaniel
Giles (hereinafter, the victim) and, without notice, shot him in
the back of the head. Notes of Testimony (hereinafter, N.T.) at
6/19/06 at 190. Accompanying [King] was Haskins, who
encouraged [King] to “Shoot him. Shoot him.” Id. at 217.
After [King] shot the victim in the head, he stepped over the
victim and shot him in the neck. Id. at 194. The bullet fired
into the victim’s head was shot from approximately one foot
away and entered through the right ear, and ultimately lodged in
the other side of the victim’s skull. Id. at 129, 132. The second
shot was fired approximately two feet from the victim’s body.
Id. at 133. This shot split the victim’s cervical spine in two, and
also ripped through the victim’s jugular vein and carotid artery.
Id. at 134. The victim was pronounced dead at Temple
University Hospital. Id. at 126.
On July 15, 2004, approximately six and a half months before he
was murdered, the victim had gone to the Philadelphia Office of
the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
to speak with Special Agent Doerrer about the purchase of a
Ruger .45 caliber handgun that had been used to kill Faheem
Thomas–Childs.[fn4] N.T. 6/19/06 at 97–100. The victim was a
straw purchaser for his neighbor, [King]. Id. at 107, 118. The
victim admitted to Doerrer that one of the guns he purchased for
the defendant was a .45 caliber [firearm]. Id. at 227. In his
statement, the victim also admitted that he purchased the gun
used to kill Faheem Thomas–Childs in May of 2003. Id. at 105.
Subsequently, in March of 2006, the defendant admitted to a
prison cell-mate, Craig Lindsey, that he had previously owned a
gun used by Kennell Spady, one of the men arrested for the
Faheem Thomas–Childs murder. N.T. 6/20/06 at 226–227. In
fact, Faheem Thomas–Childs was killed by a bullet fired from a
.45 caliber gun which was subsequently traced to Giles as the
purchaser. Id. at 245.
[FN4.] This was a very high profile case in Philadelphia,
involving the killing of a 10 year old child during his
morning walk to school. Faheem Thomas–Childs was
caught in the crossfire between warring drug dealers and
was fatally struck by one of approximately 50 bullets fired
that morning.
Earlier in the evening on February 2, 2005, at around 8:30 p.m.,
S.T. and F.J.[fn5] entered a Chinese [food] store on the corner of
Stillman and Cambria Streets in Philadelphia. Id. at 176.
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Intending to carry out their food, the two girls had to wait as its
preparation was not yet complete. Id. at 178. As they waited,
Ms. T. exchanged pleasantries with the victim, whom she knew
through another person. Id. at 180. Ms. T. then saw the victim
leave the store on the corner of Stillman and Cambria Streets
and begin to speak with another person, later identified as
Khalief Alston. Id. at 181; 223. Ms. J. also witnessed the victim
and Mr. Alston having a conversation outside the Chinese [food]
store. N.T. 6/20/06 at 37.
[FN5.] At the time of trial, Ms. T. and Ms. J. were aged 14
and 16, respectively. N.T. 6/19/06 at 175; N.T. 6/20/06
at 28. Their full names appear in the certified record.
While waiting for their food, both Ms. T. and Ms. J. noticed a car
drive up Stillman Street to the corner where it intersected with
Cambria Street.[fn6] After the car stopped for an unusually long
time, the girls observed it make a left onto Cambria Street. N.T.
6/19/06 at 183–184; N.T. 6/20/06 at 34–37. Shortly thereafter,
both Ms. T. and Ms. J. noticed two males approach the corner of
Stillman and Cambria Streets in the direction from which the car
they observed had just driven. Id. at 186; N.T. 6/20/06 at 39.
Each identified these two men as the codefendants. Id. at 186;
N.T. 6/20/06 at 40, 71.
[FN6.] Crime scene investigators testified that both the
Chinese [food] store and the scene of the crime on the
corner of Stillman and Cambria Streets were well lit. N.T.
6/19/06 at 162–163. It was possible to see both into the
store, and out of it. N.T. 6/20/06 at 314–318.
As the co-defendants approached the victim from behind, [King]
shot him in the head. Id. at 188, 190; N.T. 6/20/06 at 39.
[King] fired at the victim from a distance close enough to reach
out and touch him. N.T. 6/19/06 at 190. In the process of the
shooting of the victim, Ms. T. was able to see Haskins’[s] entire
face. N.T. 6/19/06 at 204. Ms. J. saw the defendant from the
side. N.T. 6/20/06 at 49–50. She also noticed sparks come
from the black or silver pistol[-]type gun used by the defendant.
N.T. 6/20/06 at 59–61. After being shot, the victim instantly fell
over. N.T. 6/19/06 at 193; N.T. 6/20/06 at 41. Ms. J. then saw
the victim being shot a second time, though she was not sure
where this shot struck the victim. N.T. 6/20/06 at 62. As [King]
shot the victim, both girls saw Haskins standing nearby. N.T.
6/19/06 at 187; N.T. 6/20/06 at 71. Ms. T. heard him scream to
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[King], “Shoot him. Shoot him.” N.T. 6/19/06 at 217. Though
she witnessed only the defendant shoot the victim, Ms. J. saw
Haskins with a gun.[fn7] N.T. 6/20/06 at 75.
[FN7.] At the scene of the crime, police officers found a
nine millimeter fired cartridge casing. N.T. 6/20/06 at
243. A nine millimeter, or .38 caliber, bullet specimen was
also recovered by the medical examiner from the victim’s
head. Id.
After the shooting, everyone fled the scene of the crime. Ms. T.
watched the co-defendants leave together in a car. N.T.
6/19/06 at 194, 209–210. Khalief Alston, with whom the victim
was talking prior to being shot, ran up Stillman Street. N.T.
6/19/06 at 207. Startled and frightened for their lives, both
witnesses also fled and headed to the home of Ms. T. N.T.
6/19/06 at 207; N.T. 6/20/06 at 47–48. Ms. T. recalled running
past the victim and seeing him lying motionless, surrounded by a
lot of blood. N.T. 6/19/06 at 208–209. Ms. J. related that Ms.
T. had screamed in fear after seeing the shooting and continued
to cry throughout the ordeal. [N.T.] 6/20/06 at 48. On their
way to the home of Ms. T., the girls were almost hit by the car in
which the [co-] defendants were fleeing. Id. at 52.
Immediately after the crime, Ms. J. went with her aunt to give a
statement to Homicide detectives. Id. at 154. She also
returned to Homicide on two subsequent occasions. On
February 23, 2005, Ms. T. went with her mother to give a
statement to Homicide detectives. She also returned to
Homicide to provide additional information on two subsequent
occasions.[fn8]
[FN8.] Ms. T. and Ms. J. both returned to the Homicide
Division on March 14, 2005[,] and on April 16, 2005, to
provide additional information about the murder they had
witnessed. N.T. 6/22/06 at 22, 24, 26–27.
On April 9, 2005, Detective Ron Dove, then of the Central
Detectives Division, was working on unrelated matters with his
partner, Detective Jim Waring, in the neighborhood where the
victim was murdered. Detective Dove spoke with [King]. N.T.
6/20/06 at 170–171. Noticing his “black T-shirt with a red stop
sign on it that said ‘Stop Snitching’ across it”, Detective Dove
asked him if the T-shirt was a warning. Id. at 175. [King]
answered “Yes”, and pointed at the top rear of his shirt which
revealed a drawing of a tombstone with the letters R.I.P. on it.
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Id. Detective Dove asked him, “Is that what happens to people
who snitch on you?” Id. He replied, “Yes.” Id.
Approximately 20 minutes later, at another location in the
neighborhood, Detective Dove saw Haskins, in [King’s] company,
and wearing the same “Stop Snitching” T-shirt. Id. at 178–179.
Upon learning that [King] and Haskins were wanted for murder,
Detective Dove began looking for them in the neighborhood
where the victim was killed. N.T. 6/22/06 at 180. He never
again saw them there. Id. at 181. On May 6, 2005, based on
information provided to the police, Detectives Dove and Waring
learned that the co-defendants were staying together in room
312 of a Holiday Inn hotel on City Line Avenue. N.T. 6/20/06 at
182–183. The detectives found the two men in that room and
arrested them for the murder of the victim. Id. at 184.
Commonwealth v. King, 959 A.2d 405, 407-09 (Pa. Super. 2008) (quoting
Trial Court Opinion, 7/18/07, at 1-5).
Following trial, the jury convicted King of first-degree murder, criminal
conspiracy, and carrying a firearm on a public street in Philadelphia. 2 The
trial court imposed a life sentence followed by a consecutive term of years.
On direct appeal, this Court affirmed in a published opinion. See also
Commonwealth v. Haskins, 953 A.2d 599 (Pa. Super. 2008) (unpublished
memorandum) (affirming in Haskins’s case). Notably, we rejected King’s
claims of error in admitting (1) the victim’s statements to a federal
investigator that King solicited him to buy the handgun that killed Thomas-
Childs; and (2) testimony that Detective Dove saw King wearing a “Stop
Snitching” t-shirt.
____________________________________________
2
18 Pa.C.S.A. §§ 2502(a), 903(a), and 6108, respectively. Haskins was
convicted of first-degree murder and criminal conspiracy.
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King and Haskins filed timely first PCRA petitions. Both petitioners
raised claims that the Commonwealth violated Brady v. Maryland, 373 U.S.
83 (1963), by not disclosing a letter seized from Alston, in which he stated
that Ernest “Ezze” Cannon—and not King and Haskins—shot the victim. The
PCRA court granted new trials to King and Haskins. The Commonwealth’s
appeals to this Court were consolidated, and we reversed.3
Commonwealth v. Haskins, 60 A.3d 538, 552 (Pa. Super. 2012), appeals
denied, 78 A.3d 1090 (Pa. 2013).
On remand, the PCRA court addressed King’s remaining claims. After
briefing and argument, the PCRA court determined that King was not entitled
to post-conviction relief. Therefore, it sent King a Pa.R.Crim.P. 907 notice of
intent to dismiss his PCRA petition without a hearing, and then a final order
dismissing the petition. King appealed, raising eleven issues in his concise
statement of errors complained of on appeal. The PCRA court issued a
responsive opinion addressing King’s issues.
Before this Court, King has reduced his assignments of error to five:
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3
To prevail on a Brady violation claim, a defendant must show “(1) the
evidence was suppressed by the Commonwealth, either willfully or
inadvertently; (2) the evidence was favorable to the defendant; and (3) the
evidence was material, in that its omission resulted in prejudice to the
defendant.” Haskins, 60 A.3d at 547 (citing Commonwealth v. Dennis,
17 A.3d 297, 308 (Pa. 2011)). King’s and Haskins’s Brady violation claims
failed because the Alston letter was not material. Id. at 552.
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1. After concluding that trial counsel performed deficiently in
failing to object to the absence of a Kloiber[4] instruction, did
the PCRA court commit legal error in its prejudice analysis
where it focused exclusively on the inculpatory aspects of the
eyewitness testimony without considering its inherent
weakness or how it was impeached, failed to consider the
strength of the defense case that at third party was the actual
killer, and failed to consider how a proper instruction would
have affected the jury in conjunction with the exculpatory
evidence concealed by the Commonwealth as found by this
Court on the prior appeal?
2. Did the PCRA court err in denying a hearing on the claim that
trial counsel was ineffective for failing to request an
instruction on how the jury was to consider evidence that a
central Commonwealth witness was under investigation for
serious federal crimes at the time he gave his statement to
police?
3. Did the PCRA court err in denying without a hearing the claim
that prior counsel were ineffective for failing to preserve the
claim that the trial court erred in restricting [King’s] ability to
establish that a third party committed this crime?
4. Did the PCRA court err in denying without a hearing the claim
challenging prior counsel’s ineffective assistance in failing to
(a) preserve the trial court’s error in admitting overwhelming
“prior bad acts” evidence that was irrelevant to begin with or
whose prejudicial impact far outweighed its minimal relevant
and (b) request cautionary instructions limiting the jury’s
consideration of this evidence for the limited purposes for
which some of it was admitted?
5. Did the PCRA court err in denying the cumulative impact
claim?
Appellant’s Brief at 3-4.
We review the denial of relief under the PCRA “to determine whether
the findings of the PCRA court are supported by the record and free of legal
____________________________________________
4
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014)
(quotation omitted). The PCRA court’s credibility determinations bind the
appellate court when they are supported by the record. See
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). However, we
review de novo the PCRA court’s legal conclusions. See id.A PCRA petitioner is eligible for relief if he pleads and proves by a
preponderance of the evidence that his conviction and sentence resulted
from, among other grounds, “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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). The petitioner also must prove that
the claim is not previously litigated or waived, and that the failure to raise
the claim previously was not the result of any rational, tactical, or strategic
decision by counsel. Id. § 9543(a)(3) and (4).
We presume that prior counsel rendered effective assistance. Paddy,
15 A.3d at 442; Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)
(“We . . . presume that counsel is acting effectively.”). A PCRA petitioner
overcomes this presumption by meeting all three prongs of the Pierce test:
“(1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) the petitioner
suffered prejudice because of counsel’s ineffectiveness.” Paddy, 15 A.3d at
442. “If a petitioner fails to satisfy any prong of the ineffectiveness inquiry,
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a claim of ineffective assistance of counsel will be rejected.” Eichinger, 108
A.3d at 830-31.
With this framework in mind, we turn to the issues King raises on
appeal.
1. No Kloiber Charge
King claims that trial counsel was ineffective for failing to preserve a
claim of error when the trial court did not give a Kloiber charge. The basis
of this claim is F.J.’s failure to identify King as the shooter in her initial
statement to police. The record shows that trial counsel requested a
Kloiber charge, the trial court denied his request, and trial counsel did not
except to the charge given as required by Pa.R.Crim.P. 647(B). See N.T.
Trial, 6/21/06, at 3-4; N.T. Trial, 6/22/06, at 258. The PCRA court found
that King’s claim had arguable merit, but that he could not show prejudice.
As set forth below, we find that King’s claim lacks arguable merit.
A Kloiber charge admonishes the jury about the unreliability of certain
eyewitness identification testimony. Commonwealth v. Rios, 920 A.2d
790, 804 (Pa. 2007), overruled on other grounds by, Commonwealth v.
Tharp, 101 A.3d 736 (Pa. 2014). A defendant is entitled to a Kloiber
charge if the witness (1) could not clearly see the defendant; (2)
equivocates in identifying the assailant; or (3) failed to identify the
defendant on one or more prior occasions. Id.; see also Pa. Sugg. Stand.
Jury Instr. (Crim.) 4.07B (setting forth the suggested standard Kloiber
charge), cited with approval in Commonwealth v. Trivigno, 750 A.2d 243,
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253 (Pa. 2000) (Opinion Announcing the Judgment of the Court). A
defendant, however, is not entitled to a Kloiber charge if the witness failed
to identify the defendant out of fear of endangerment. Commonwealth v.
Reid, 99 A.3d 427, 449 (Pa. 2014).
Our case law makes clear that the need for a Kloiber charge
focuses on the ability of a witness to identify the defendant.
Our Commonwealth’s decisional law has long held that prior
inconsistent statements based upon fear of endangerment do
not equate to a prior failure of ability to identify a defendant.
Id. (emphasis in original). In other words, non- or misidentification out of
fear of reprisal does not concern a witness’s ability to identify the
defendant.
At trial, F.J. testified that while she and S.T. were inside the Chinese
takeout restaurant, they saw a car drive down Cambria Street, stop for a
few seconds, and then keep going. Through the restaurant’s plate glass
window, F.J. saw the victim conversing with Alston. Then, she saw King
approach the victim from behind and shoot him in the head. Philadelphia
homicide detectives interviewed F.J. on the night of the murder. During the
interview, she described the shooter as a “Black male, 25-27 years old, 6’ to
6’3’’, medium built, brown skin, wearing a black or dark blue skully.” PCRA
Court Opinion, 11/10/14, at 10-11 (quoting Commonwealth’s Trial Exhibit
20). The record reflects that King is much shorter than six feet. See N.T.
Trial, 6/20/06, at 98-100. F.J. testified at trial that during the interview, she
was scared:
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Q. [by the Commonwealth] Can you tell—before we go into the
statement, can you tell the ladies and gentlemen of the jury
what you were thinking when you sat down to speak to a
Homicide detective in the Homicide Division two hours after the
shooting? What were you thinking?
[Counsel for King]: Objection, Your Honor.
THE COURT: Overruled.
A. [by F.J.] What was I thinking?
Q. [by the Commonwealth] Yes.
A. I was scared. Like, I didn’t want to really say nothing
because I—it was just—like I was really scared, so . . .
Q. You said that you were scared and you didn’t want to say
anything.
A. ‘Cause I was just too scared to say anything.
N.T. Trial, 60/20/06, at 57. F.J. was also questioned during redirect
examination about her fear. During her second interview by Homicide
Division detectives, F.J. was asked whether she had left out details during
her first interview:
Q. [by the Commonwealth] [Haskins’s counsel] asked you
questions about whether you were misleading or words to that
effect. Do you remember being asked questions about this,
specifically third question down. Were you interviewed here at
Homicide before? Remember being asked that question?
A. [by F.J.] Yes.
Q. Tell the ladies and gentlemen of the jury what you told the
detectives on April 16th of 2005. Read them your answer.
A. It say, “Yes.”
Q. (Reading): Yes. But I was scared because I was there when
he was shot, and I saw the people who did this.
Those are the words that you spoke to the detectives?
A. Yes, it was.
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Q. Question: Did you tell the entire truth when you were first
interviewed?
Answer: No, because I was really scared. I did not want—I did
not want people to know that I was there, but some neighbors
saw me out there.
Is that what you told the detective?
A. I don’t remember saying that.
N.T. Trial, 6/20/06, at 112-13 (boldface in original). Philadelphia Police
Officer John Benham went to F.J.’s house the night of the murder to take her
to be interviewed. He testified that, at F.J.’s house, the lights were turned
off and the curtains were drawn. Id. at 152-53. When he finally coaxed F.J.
to come out, she was “very distraught, crying . . . very shaken up[, v]ery
scared.” Id.
The PCRA court found arguable merit to King’s claim, because during a
sidebar at trial, the Commonwealth conceded that F.J.’s initial statement to
police contained an equivocal identification of the shooter. See PCRA Court
Opinion 11/10/14, at 11 (quoting N.T. Trial, 6/20/06, at 63-64). We
disagree with the PCRA court’s evaluation, because—in context—the
Commonwealth was informing the trial judge that F.J. equivocated because
she was scared. See N.T. Trial, 6/20/06, at 62-68 (“When [F.J.] first
described these events, she was scared.”).
Thus, a Kloiber charge was inapposite. F.J. initially equivocated in
identifying King as the shooter because she was scared. Our case law
makes clear that non-identification out of fear does not equate to an inability
to identify. Reid, supra. There is no evidence that F.J. could not clearly
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see King, who she knew from the neighborhood. The record contradicts
King’s claim that hooded sweatshirts obscured his and Haskins’s faces. See
PCRA Court Opinion, 11/10/14, at 9-10. Regarding the second and third
circumstances supporting a Kloiber charge, the evidence supports the
Commonwealth’s argument that F.J. did not initially identify King as the
shooter because of fear. Thus, her failure to identify had nothing to do with
her ability to see King. See Reid, supra. Moreover, after her first police
interview, F.J. consistently identified King as the shooter and Haskins as his
accomplice, including at trial. Therefore, a Kloiber instruction was not
required in King’s case.
In sum, King’s claim of ineffectiveness regarding counsel’s failure to
seek a Kloiber charge lacks arguable merit. We are not bound by the PCRA
court’s contrary legal conclusion, and we may affirm on any basis supported
by the record. See Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.
Super. 2009). Because King cannot meet the arguable merit prong of the
Pierce test, his first claim fails. See Eichinger, 108 A.3d at 830-31.
Accordingly, we need not address whether the absence of a Kloiber
instruction prejudiced King.
2. Jury instruction regarding the victim’s statement
King next argues the PCRA court erred in denying a hearing on his
claim that trial counsel was ineffective for failing to request an instruction
regarding the statement of the victim. Specifically, King argues his trial
counsel should have requested the trial court to instruct the jury that the
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victim had a motive to lie when speaking to federal authorities, because the
victim was under investigation for serious federal crimes.
[ATF] Special Agent Doerrer interviewed Mr. Giles[, the victim,]
in July 2004 concerning an investigation into the purchase of a
.45 caliber handgun used in the killing of Faheem Thomas–
Childs. Following a pretrial evidentiary hearing pertaining to the
admissibility of evidence, the trial court permitted
Commonwealth witness Special Agent Doerrer to read Mr. Giles’s
statement into evidence. The verbatim rendition revealed that:
(1) [King] solicited Mr. Giles’s assistance on two separate
occasions to purchase three handguns, a .45 caliber Ruger,
another .45 caliber pistol, and a .357 caliber Smith & Wesson;
(2) [King] promised compensation to Mr. Giles in exchange for
making the purchases as [King] could not pass the background
checks required to purchase the handguns himself; and (3) Mr.
Giles was afraid of [King].
King, 959 A.2d at 411 (citing N.T. Trial, 6/19/06, at 120-21). On direct
appeal, we noted that the victim’s statement, whether true or false, was
evidence of King’s motive to silence the victim by murdering him:
In the case sub judice, the Commonwealth sought to establish
[King’s] retaliatory motive for killing Mr. Giles by showing that
Mr. Giles cooperated in the Thomas–Childs murder investigation
wherein he revealed potentially incriminating information
concerning [King]. To that extent, the jurors were not
asked to believe material details of the two straw arms
purchases, that is, the truth of the matter asserted, to
comprehend the probative value of Mr. Giles’s statement.
Indeed, we concur with the Commonwealth’s premise that the
evidence was highly relevant to establish the motive for the
shooting. We therefore conclude that the statement, if it had
been offered solely as motive, would not have constituted
hearsay and would have been properly admitted.
Id. at 412 (emphasis added). However, since the jury was given no limiting
instruction, the statement was to be considered for its truth, i.e., as
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hearsay, vis-à-vis admissibility. Id. We held that the trial court properly
admitted the statement as proof that King murdered the victim to prevent
him from testifying against King, under the forfeiture by wrongdoing hearsay
exception. See Pa.R.E. 804(b)(6).
This claim lacks arguable merit. Assuming, for argument’s sake, that
the victim lied to Special Agent Doerrer, those lies do not diminish King’s
motive to murder. Indeed, we concluded as much on direct appeal. King
killed the victim because of his mere cooperation, not necessarily because he
was truthful in becoming a federal informant. The purpose of impeachment
is to undermine the truthfulness of a witness’s testimony or, as here, a
declarant’s hearsay statement. See Black’s Law Dictionary 820-21 (9th ed.
2009) (defining impeachment, in relevant part, as “the act of discrediting a
witness, as by catching the witness in a lie or by demonstrating that the
witness has been convicted of a criminal offense”). King repeatedly notes
the jury was never informed how to assess the victim’s bias and motive to
fabricate (because of potential federal charges), but he fails to acknowledge
that the victim’s statement was relevant even if completely fabricated.
King cites cases concerning an accused’s ability to inquire into a
testifying witness’s pending criminal proof of bias or motive to lie. See
Appellant’s Brief at 29-32. For example, Commonwealth v. Evans, 512
A.2d 626, 631 (Pa. 1986), held that trial court erred in limiting the
defendants’ cross-examination of a cooperating coconspirator. Similarly, in
Commonwealth v. LaMassa, 532 A.2d 450, 451 (Pa. Super. 1987), we
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held the trial court erred in refusing an instruction on the Commonwealth’s
principal witness’s prior convictions for crimes of falsehood. In
Commonwealth v. Thompson, 739 A.2d 1023, 1030-31 (Pa. 1999), our
Supreme Court found “problematic” the trial court’s instruction that the jury
should not consider a witness’s open criminal cases, though it ultimately
rejected the claim of error.
In all of these cases, however, the witnesses’ testimony was relevant
for its truth, because it incriminated the defendants. The coconspirator
Evans placed the defendants at the scene of the armed robbery and
murder. Evans, 512 A.2d at 629. The principal witness in LaMassa was
the victim who testified the defendant kidnapped and robbed him.
LaMassa, 532 A.2d at 450-51. Finally, the witness in Thompson testified
that the defendant confessed to killing the victim for money. Thompson,
739 A.2d at 1027, 1030. None of these cases concerned statements that
were relevant regardless of whether they were true—as here. Again, the
victim’s statement was relevant merely because it existed. The only purpose
for King’s proposed instruction would have been to cast doubt on the truth of
the victim’s statement—a statement relevant even if false. In sum, this
claim lacks arguable merit.
King’s claim additionally fails because he cannot show prejudice. The
only prejudice he claims is the inability to impeach the victim’s statement.
King fails to state how the absence of a cautionary instruction undermined
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the jury’s guilty verdict. Therefore, the PCRA court did not err in denying
King a hearing on this claim.
3. Failing to preserve claim that trial court restricted King’s ability
to shift guilt to a third party
Next, King claims the PCRA court erred in denying him the ability to
present testimony, through Khalief Alston, that Ernest Cannon was the
actual murderer.5 Specifically, King claims that trial counsel erred in failing
to object when the trial court excluded evidence of Cannon’s motive to
murder the victim, and of Cannon’s multiple pending murder charges.
Recognizing that the latter evidence is propensity evidence (Cannon
allegedly murdered other people; therefore he murdered Giles in accordance
with his character trait as a murderer), King suggests Cannon’s other acts
must be admitted as a matter of due process so that King could attempt to
exonerate himself. This claim lacks arguable merit.
“A defendant has a fundamental right to present evidence, so long as
the evidence is relevant and not subject to exclusion under our Rules of
Evidence.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014)
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5
Alston and Cannon are each currently serving multiple life sentences for
murder. See Commonwealth v. Cannon, 22 A.3d 210, 215 & n.4 (Pa.
2011) (reversing this Court’s granting of a new trial to Cannon);
Commonwealth v. Alston, No. CP-51-CR-0700412-2005, 2013 WL
9863768 (C.P. Phila. Oct. 10, 2013) (denying PCRA relief to Alston in an
unrelated case), aff’d, 107 A.3d 237 (Pa. Super. 2014) (unpublished
memorandum).
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(emphasis added). In this case, King essentially claims trial counsel
ineffectiveness, because he did not more aggressively use evidence tending
to show that Cannon killed the victim. “Reverse Rule 404(b) evidence”
refers to a defendant’s use of other acts evidence under Pa.R.E. 404(b) 6 to
show that a third party had committed the crime at issue. See United
States v. Stevens, 935 F.3d 1380, 1404 (3d Cir. 2001) (construing the
materially similar Fed.R.Evid. 404(b)). No Pennsylvania court has squarely
addressed the use of reverse Rule 404(b) evidence, though several have
mentioned the concept obliquely. See, e.g., Patterson, 91 A.3d at 71-72
____________________________________________
6
Pennsylvania Rule of Evidence 404(b) provides:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b).
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(holding trial court did not err in precluding evidence of a third party’s
motive to commit the crime, because “[a]ppellant offered no evidence to
suggest that [the third party] was charged, let alone convicted, of a crime
that bore substantial similarity to those with which [a]ppellant was
charged”); Commonwealth v. Weiss, 81 A.3d 767, 806-07 (Pa. 2013)
(“[T]he defense may introduce evidence that someone else committed a
crime which bears a highly detailed similarity to the crime with which the
defendant is charged.”) (internal quotation omitted); Commonwealth v.
Chmiel, 889 A.2d 501, 534-35 (Pa. 2005) (holding that trial court properly
precluded defendant from questioning witness concerning prior burglary
which did not fall within permitted purposes of Rule 404(b) but merely
tended to establish action in conformity with the prior act).
King unabashedly admits that he believes trial counsel should have
introduced evidence of Cannon’s murder charges to show that Cannon had
the propensity to murder, and therefore killed the victim. See Appellant’s
Brief at 40. Rule 404(b)(1) expressly prohibits this tactic, and Stevens,
cited by King, is both inapposite and distinguishable.
As explained herein, [the appellant] misreads Stevens, and we
write to clarify that Rule 404(b)’s proscription against
propensity evidence applies regardless of by whom, and
against whom, it is offered. Under Stevens, we grant
defendants more leeway in introducing “bad acts” evidence
under one of the Rule 404(b) exceptions—requiring only that its
probative value is not substantially outweighed by Rule 403
considerations such as unfair prejudice, undue delay or
confusion of the issues. But Stevens did not afford
defendants more leeway in admitting propensity evidence
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in violation of the prohibition of Rule 404(b). Because the
only purpose for which [the appellant] sought to introduce
[another person’s] prior conviction was to show that he has a
propensity to carry firearms, the [d]istrict [c]ourt correctly
excluded the evidence.
United States v. Williams, 458 F.3d 312, 314 (3d Cir. 2006); see also
Wynne v. Renico, 606 F.3d 867, 870-71 (6th Cir. 2010) (holding habeas
petitioner’s constitutional right to present a complete defense was not
violated by state rule of evidence that precluded the use of propensity
evidence against a third party). Thus, a criminal defendant cannot use a
third party’s murder charges to show that the third party committed the
instant murder merely because the third party has a general propensity to
murder.
We find Williams, together with Patterson, Weiss, and Chmiel,
persuasive. Rule 404(b) precluded King from admitting evidence of
Cannon’s murders to show that he had a propensity to murder and,
therefore, killed the victim in this case. King argues that he should have
been able to introduce propensity evidence tending to show Cannon was the
real killer because it was highly relevant. That argument misses the point,
because Rule 404(b)(1) makes propensity evidence inadmissible subject to
Rule 404(b)(2)’s limited exceptions. See Commonwealth v. Hicks, 91
A.3d 47, 53 (Pa. 2014). King’s claim of an alleged lack of prejudice to the
Commonwealth also misses the mark. The prejudice inquiry required in
criminal cases by the second sentence of Rule 404(b)(2), see footnote 6,
supra, comes into play only if the other acts evidence is admissible under
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Rule 404(b)(2), i.e., for a purpose other than showing propensity. In other
words, any lack of prejudice does not nullify Rule 404(b)(1)’s prohibition
against propensity evidence. Because King’s purpose in introducing
Cannon’s murder charges was to show his propensity to commit murder—
which is barred by Rule 404(b)(1)—he cannot show that his claim has
arguable merit.
Additionally, we reject King’s argument to the extent he contends trial
counsel was ineffective in failing to flesh out Cannon’s motive to kill the
victim. We have reviewed the record, and King has not stated what
evidence of Cannon’s motive to kill was wrongly excluded because of trial
counsel’s ineffectiveness. Further, King has failed to link Cannon’s unrelated
murder charges in any meaningful way to the killing of the victim. The
evidence shows that Cannon killed his other victims after robbing them, see
N.T. Trial, 6/22/06, at 80-84, while the victim here was murdered in
retaliation for cooperating with authorities.
Even if King could show arguable merit, he cannot show prejudice.
Much of the evidence that King claims the trial court excluded was actually
admitted. First, Alston testified that Cannon told him, upon seeing the
victim, “[t]here go that boy supposed to be telling on Lemon[7]” N.T. Trial,
6/21/06, at 102. Although the trial judge admonished Alston not to testify
____________________________________________
7
“Lemon,” King’s nickname, was extensively referenced at trial.
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about what other people said, she did not strike from the record Alston’s
testimony. Second, Alston testified that Cannon—and not King—murdered
the victim by shooting him in the head. Id. at 103. King’s trial counsel
emphasized Alston’s testimony in closing argument, telling the jury, “[i]f
Ernie Cannon committed this murder, then you got the wrong man.” N.T.
Trial, 6/22/06, at 125.
Also, despite objections from the Commonwealth, Alston testified
about his knowledge of Cannon’s murders. Alston admitted to giving a
statement to police about murders he and Cannon allegedly committed.
N.T. Trial, 6/21/06, at 169. Alston further admitted that he and Cannon
were suspected of murdering Robert Sample. Id. at 174-76. He stated that
Cannon confessed to him that he murdered a man named “Gene.” Id. at
176-77. Furthermore, Philadelphia Police Detective Gerald Lynch testified
that Alston and Cannon were suspected of committing robbery/murders
together. N.T. Trial, 6/22/06, at 80-84. Thus, the jury was aware that
Cannon was accused of multiple murders.
In sum, we reject King’s claim. The PCRA court correctly found that it
lacks arguable merit, and King additionally cannot show prejudice.
4. Failing to preserve error on prior bad acts evidence
Next, King contends that prior counsel were ineffective for failing to
preserve error related to the admission of King’s prior bad acts. This other
acts evidence included (1) evidence linking King to the high-profile murder
of Thomas-Childs; (2) his status as leader of the “Lemon squad” of
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gangsters; (3) his illegal purchase and sale of handguns; (4) his involvement
in an unrelated drowning murder; and (5) his opinion that citizens should
not cooperate with police. King contends that such evidence was wrongly
admitted, and trial counsel was ineffective in failing to object and also in
failing to request cautionary instructions.
We reject King’s claim to the extent he contends trial counsel was
ineffective for allowing other acts into evidence. The PCRA court noted that
the above evidence was admissible for other purposes permitted under Rule
404(b)(2). We find no error in the PCRA court’s reasoning. Indeed, the
admissibility of several of the above items was previously litigated on direct
appeal. See King, 959 A.2d at 418-19 (determining that trial court did not
abuse its discretion in admitting testimony relating to drowning murder and
King’s anti-authority sartorial choices). The PCRA bars relief if a claim is
previously litigated. See Commonwealth v. Tedford, 960 A.2d 1, 16 (Pa.
2008) (noting that a PCRA petitioner cannot satisfy the arguable merit prong
of the Pierce test where the underlying legal claim was rejected on direct
appeal).
However, merely because the evidence was admissible does not
resolve whether trial counsel should have requested instructions to the jury
explaining the limited purpose for its admissibility. Indeed, when a
defendant’s prior bad acts are properly admitted other than as propensity
evidence, a defendant is entitled to a jury instruction that the other acts are
not proof of his guilt. Commonwealth v. Billa, 555 A.2d 835, 841-42 (Pa.
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1989), abrogated on other grounds by, Commonwealth v. Freeman, 827
A.2d 385 (Pa. 2003); Commonwealth v. Amos, 284 A.2d 748, 750 (Pa.
1971) (“Of course, the potentially prejudicial effect of the introduction of the
defendant’s record requires that the jury be made aware of the limited
purpose of such evidence.”). In Billa, for example, the Commonwealth
admitted evidence of the defendant’s prior rape and attempted murder of
another victim to prove his motive and intent to murder, as well as to rebut
his claim of accidental death. Billa, 555 A.2d at 841. Our Supreme Court
upheld the trial court’s admission of this evidence, but nevertheless reversed
the defendant’s conviction, holding that trial counsel was ineffective for
failing to request an appropriate limiting instruction. Id. at 843.
In this case, we are constrained to disagree with the PCRA court’s
conclusion that the evidence’s admissibility meant that trial counsel was not
ineffective for failing to request a cautionary instruction. As stated in Billa,
where other acts evidence is admissible under Rule 404(b), a defendant is
entitled to a cautionary instruction so that the jury does not use the other
acts as propensity evidence. Nor can we agree that the reference to King’s
other criminal acts was fleeting. Rather, it pervaded the entire trial, as King
notes in his brief.
In finding that trial counsel’s failure to request a limiting instruction
has arguable merit, we express no opinion as to the other two prongs of the
Pierce test. A finding that trial counsel had no reasonable basis for his or
her chosen course of action generally requires evidence, and the PCRA court
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dismissed King’s claim without a hearing. Cf. Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 783-74 (Pa. Super. 2015) (en banc) (holding
that, where a PCRA petitioner fails to develop an evidentiary record at a
hearing, he cannot show counsel lacked a reasonable basis for failing to
request cautionary instructions). We further decline to address whether
King was prejudiced by any ineffectiveness in this regard. We hold only that
King is entitled to an evidentiary hearing to develop a record to support his
claim.
5. Cumulative prejudicial impact of claims
In his final claim, King argues that the cumulative prejudicial impact of
his claims entitles him to relief. When post-conviction claims are rejected
for lack of merit or arguable merit, no basis exists for an accumulation claim.
Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012). “When the
failure of individual claims is grounded in lack of prejudice, however, then
the cumulative prejudice from those individual claims may properly be
assessed.” Id.Although we remand for an evidentiary hearing only on King’s fourth
claim only, King cannot ultimately prevail, i.e., gain a new trial, on his
accumulation claim. This is so because he has only one claim with merit or
arguable merit. In this appeal, we have found that all other substantive
claims of ineffective assistance lack arguable merit. In King’s prior PCRA
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appeal, we found that King’s Brady violation claim lacked merit, because he
could not show the withheld evidence was material.8 Haskins, 60 A.3d at
552. Thus, because King possesses only one claim of arguable merit, it is
impossible for him to show cumulative prejudice. As our Supreme Court has
repeatedly stated, “‘no number of failed claims may collectively warrant
relief if they fail to do so individually.’ Accordingly, where claims are
rejected for lack of arguable merit, there is no basis for an accumulation
claim. Commonwealth v. Bomar, 104 A.3d 1179, 1216 (Pa. 2014)
(quoting Commonwealth v. Washington, 927 A.2d 586, 617 (Pa. 2007)).
In sum, the PCRA court erred in finding that King’s fourth claim lacked
arguable merit, and therefore abused its discretion in denying a hearing on
that claim. It did not err in denying relief on all other claims raised on
appeal. Accordingly, we affirm in part, vacate in part, and remand for an
evidentiary hearing limited to King’s fourth claim only, i.e., whether he can
meet the other prongs of the Pierce test regarding trial counsel’s failure to
____________________________________________
8
We cannot revisit our prior holding in this appeal. See Commonwealth v.
Viglione, 842 A.2d 454, 46-162 (Pa. Super. 2004) (en banc) (quoting
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)) (“Among the
related but distinct rules which make up the law of the case doctrine are that
. . . upon a second appeal, an appellate court may not alter the resolution of
a legal question previously decided by the same appellate court . . . .”).
However, even though King did not prevail in the prior appeal, we reiterate
our disapproval of the Commonwealth’s conduct. See Haskins, 60 A.3d at
549-50; id. at 552 (Bowes, J., concurring).
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request a jury instruction explaining the limited purpose of the Rule 404(b)
evidence admitted at trial.
Order affirmed in part and vacated in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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