Com. v. Mallory, C. ( 2017 )

J-S54034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CALVIN MALLORY, JR. : No. 269 WDA 2017
Appeal from the PCRA Order January 11, 2017
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000319-2011
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 26, 2017
Appellant, Calvin Mallory, Jr., appeals from the order of the Somerset
County Court of Common Pleas denying his petition for relief under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant
contends, inter alia, that defense counsel provided ineffective assistance
during trial by failing to object to testimony by a Commonwealth witness of
other murders that Appellant allegedly committed or ordered. We agree
with Appellant that defense counsel provided ineffective assistance that
resulted in prejudice. Therefore, we reverse the PCRA court’s order, vacate
the judgment of sentence, and remand for a new trial.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S54034-17
FACTUAL AND PROCEDURAL HISTORY
1. Procedural History
Appellant was charged with first degree murder,1 two counts of
conspiracy to commit murder in the first degree,2 and one count each of
corrupt organizations,3 sale of a non-controlled substance4 and criminal use
of a communication facility.5 The jury found Appellant guilty of all charges
following a four-day trial. The trial court sentenced him to a mandatory
term of life imprisonment for first degree murder followed by a consecutive
term of two to ten years’ imprisonment. On direct appeal, this Court
affirmed, and our Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Mallory, 97 WDA 2013 (Pa. Super. Mar. 19,
2014) (unpublished memorandum), appeal denied, 203 WAL 2014 (Pa. Oct.
6, 2014).
Appellant filed a timely PCRA petition alleging ineffective assistance of
trial counsel due to unreasonable trial strategy. On April 27, 2016, the PCRA
____________________________________________
1
18 Pa.C.S. § 2502(a).
2
18 Pa.C.S. § 903. One count alleged a conspiracy between Appellant and
Toriano McCray, and the other count alleged a conspiracy between Appellant
and Roland Washington.
3
18 Pa.C.S. § 911(b)(3).
4
35 P.S. § 780-113(a)(35)(ii).
5
18 Pa.C.S. § 7512(a).
-2-
J-S54034-17
court held an evidentiary hearing during which trial counsel testified. In an
order and opinion issued on January 11, 2017, the PCRA court denied
Appellant’s PCRA petition. Appellant filed a timely appeal to this Court, and
both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
2. Factual Background
Appellant’s conviction arises out of the shooting death of Bryant
Adderley inside his apartment in August 2008. Police officers recovered a
package of fake cocaine at the scene. About one week after the discovery of
Adderley’s body, Ronald Ziegel was arrested in Fayette County on an
unrelated charge. Ziegel provided information that resulted in the arrests of
Appellant, Washington and McCray.
The PCRA court describes the evidence adduced during trial as follows:
On July 21, 2011, the then-District Attorney of Somerset
County filed an Information charging [Appellant] with
multiple crimes arising out of the death of Bryant Adderley.
In essence, the Commonwealth alleged that [Appellant]
headed an illegal drug distribution ring based out of
Brooklyn, New York, and Bryant Adderley “worked” locally
for [Appellant] as a dealer. According to the
Commonwealth’s theory of the case, Adderley had been
stealing money from [Appellant] so [Appellant] ordered
Adderley’s murder by instructing Roland Washington and
Toriano McCray to shoot Adderley.
Robert Lee Ziegel, the prosecution’s chief witness, drove
Washington and McCray to Adderley’s residence on the day
of the murder. Ziegel initially was a marijuana smoker
who sold marijuana on the side to finance his drug habit.
Ziegel found, however, that he was unable to financially
make ends meet, even with working a legal job and selling
marijuana. He, therefore, decided to start selling crack
cocaine as well. Ziegel’s cocaine supply was purchased in
-3-
J-S54034-17
part from Pittsburgh suppliers and in part from Bryan
Maust, a local dealer who worked for [Appellant]. Maust
eventually introduced Ziegel to [Appellant], at which time
[Appellant] stated his interest in employing Ziegel as one
of his dealers.
About two months after [Appellant]’s and Ziegel’s first
meeting, [Appellant] contacted Ziegel and instructed him
to drive Maust to a farmhouse near Jennerstown,
Pennsylvania. At the farmhouse, [Appellant] offered to
supply Ziegel with cocaine for a lesser price than Ziegel
had been paying his Pittsburgh suppliers. Also present at
the farmhouse meeting was an associate of [Appellant]’s
named “B-Bop.”
In the time following the farmhouse meeting, Ziegel’s
dealing enterprise began to expand, eventually employing
around five people as distributors. Ziegel went from
acquiring one ounce to four ounces of cocaine at a time
from [Appellant]’s dealers, after which [Appellant]
informed Ziegel that he would have to come to Brooklyn to
“re-up.” [Appellant] also instructed Ziegel to transport to
Brooklyn money owed to [Appellant] by Maust. The
amount of cocaine [Appellant] supplied Ziegel eventually
increased to a kilo at a time.
Later, [Appellant] instructed Ziegel to meet him at the
Jennerstown farmhouse again, which is where Ziegel first
met Bryant Adderley, or “B-Dave.” [Appellant] told Ziegel
that Ziegel was traveling too much with too much product,
so [Appellant] was going to position Adderley nearby with
drugs so that Ziegel would not have to travel as far to “re–
up.” At that point, [Appellant] also gave Ziegel a quarter-
pound of heroin and instructed him to sell it. Ziegel only
sold the heroin for a month or so, however, because too
many people in the area were overdosing on it. Ziegel
reported this to [Appellant], and [Appellant] decided to
stop selling the heroin in the area.
One of [Appellant]’s shipments subsequently got “busted,”
and Ziegel was informed that he would not have any
product for about two weeks. Ziegel was given five
pounds of marijuana to sell in the meantime, which was
worth $10,000. Because Ziegel had saved enough money
-4-
J-S54034-17
to cover the cost of the marijuana, he decided to take a
vacation to Ocean City, Maryland with his girlfriend (Amy
Johnson), and two other people, one of whom worked for
Ziegel as a “crew member.” In Ocean City, a police officer
saw Ziegel sitting in a vehicle rolling a “blunt” (a cigar with
the tobacco removed and marijuana inserted). Ziegel
admitted to the officer that the marijuana belonged to him.
Ziegel was taken to jail, where a DEA agent offered him a
deal[6] in exchange for information as to who had sold
Ziegel the marijuana. Ziegel declined and went to jail
instead, staying for two weeks before he was finally bailed
out by [Appellant] via Ziegel’s wife, at ten percent of the
$50,000 bond.
At this point, Ziegel owed [Appellant] $10,000 for the
marijuana and $5,000 for the purchase of the bail bond.
Ziegel went to Brooklyn and repaid [Appellant], after which
[Appellant] gave Ziegel ten ounces of crack cocaine to help
him “get back on [his] feet.” [Appellant] also informed
Ziegel that he had earned his “first stripe” for getting
locked up and not rolling over under pressure from the
DEA.
About a month later, Ziegel was again arrested and
charged, this time by the Pennsylvania State Police, with
selling crack cocaine to a friend. While the Pennsylvania
charges were pending, Ziegel briefly moved back into his
parents’ home, and began working with his father at
Hidden Valley Resort on the maintenance crew. It was at
that point that Maust contacted Ziegel, again on
[Appellant]’s behalf. Ziegel was nervous because he knew
that he still owed [Appellant] $12,000 for the ten ounces
of crack cocaine [Appellant] had given him to get back on
his feet. Maust transported Ziegel to a location in
Donegal, where [Appellant] was waiting.
[Appellant] asked Ziegel if he was ready to begin selling
again, to which Ziegel replied that he guessed so.
[Appellant] at this point also allegedly threatened to smash
____________________________________________
6
The DEA agent was investigating because a large amount of marijuana had
been found in the trunk of Ziegel’s vehicle.
-5-
J-S54034-17
a beer bottle into Maust’s face because Maust had used an
ounce of heroin instead of selling it. Maust was given a
week to get the money to [Appellant]. However,
[Appellant] made no mention at that point of Ziegel’s debt.
[Appellant] shortly thereafter began supplying Ziegel with
two ounces of cocaine at a time to sell. Ziegel claimed to
have been given his second stripe after his second bust;
that is, he was promoted to “General” within [Appellant]’s
organization.
Ziegel returned to selling drugs full-time. Later, the
Fayette County Drug Task Force showed up at Ziegel’s
residence where he was found in possession of sixteen
grams of marijuana. Ziegel indicated that he could do his
time, but that he wanted out of “this lifestyle,” after which
he agreed to cooperate with the authorities. However,
nothing much came from his agreement to cooperate. As
Ziegel described it, “I just kept putting it off basically . . . I
said, I got to keep doing what I’m doing to make it look
good. And [the officer] said, he can’t promise me nothing,
but he said that they’ll lay off me.”
Subsequently, Ziegel met up with [Appellant] at the “Trent
Residence,” a house located on Trent Road in Bakersville,
Pennsylvania. Ziegel was invited in by a man named
“Sheik.” [Appellant] and Adderley were in the bathroom,
and Ziegel overheard them discussing a deal: “I heard
them say something about they don’t trust it. I heard
about offing it . . . And at the end I just heard let’s give
him a choice. That’s . . . the extent of the conversation I
heard.” Ziegel believed they were talking about him.
After the discussion between [Appellant] and Adderley,
[Appellant] came out of the bathroom and offered Ziegel a
position in Erie, Pennsylvania. Ziegel’s choice became: go
to New York to pick up a kilo or go to Erie. Ziegel
accepted the Erie post, figuring that if he went to New
York, he would never come back.
Business continued more or less as usual through 2009.
One day, [Appellant] called Ziegel out of the blue and
asked him to come to New Jersey as soon as possible.
Ziegel caught a ride to Columbus, Ohio, where he met up
with a woman who had [Appellant]’s Yukon Denali, which
Ziegel then drove to Perth Amboy, New Jersey. Ziegel met
-6-
J-S54034-17
[Appellant] there, along with Roland Washington and
Toriano McCray. Ziegel had never met McCray before, but
he had met Washington at least once. Ziegel testified that
[Appellant] sat him down, “and he’s talking about B-Dave.
He’s like, he’s been shorting me money. I don’t know why
he’s screwing around like this. You know, we got to teach
him a lesson because he’s, he’s kind of telling me what I
needed to do.” Ziegel next testified that the plan was to
package up fake cocaine and then he, McCray, and
Washington were to go to Somerset to deliver the fake
cocaine to Adderley and “get the money off of him.”
Ziegel testified that he helped “puck” up the package of
fake cocaine. Pucking had been explained as follows:
Well, what a puck is, there’s a device called a puck
press. It has a hydraulic pump, and there’s a little
round device on top, where there’s a hole here. Kind of
looks like a hockey puck. Put the powder in it, you
screw a top on, a solid metal top, and you move the
jack, and it jacks it up and compresses it into a form of
a puck.
[M]ost people who do drugs like their powder in rock
form. So if you cut it, you got to break it down into
powder, and then to get it hard again you have to
what’s called puck it, press it.
Ziegel indicated that the procedure is to take pure powder
cocaine, to cut it with something, “[u]sually procaine,” and
then puck it. So Ziegel testified that the plan was to take
fake cocaine and puck it to give it the appearance of real
cocaine, and then take it to Adderley in exchange for
money: “Me and [Appellant] packaged it . . . Baking soda .
. . Because he didn’t want to waste his money trying to
puck up cocaine because it cost too much.” Ziegel agreed
that they had trouble packing it: “Baking soda won’t
compress. As soon as we puck it up, it would just fall back
apart. I tried putting hair spray in it to try to hold it
together. That didn’t work. So . . . it wouldn’t puck up.”
McCray testified that what Ziegel had packed up was
cocaine. McCray knew it was cocaine because he took
some to the bathroom and used it without anyone else
-7-
J-S54034-17
knowing. McCray testified, “I know it was real cocaine
because I was usin’ it. I snuck some and was usin’ it . . . I
did drugs from years ago. I know what cocaine is . . . .”
McCray knew, then, that the drugs that they had packaged
up in Brooklyn to take to Adderley were real.
The trio retrieved two guns in Perth Amboy, which
Washington and McCray carried. Ziegel at this point
believed that the plan was to rob Adderley rather than
murder him. But Washington testified that when they left
New York with the guns, it was his understanding that they
were supposed to murder Adderley, per [Appellant]’s
instruction. Washington corroborated Ziegel’s testimony
that the plan was to rob Adderley. But, according to
Washington, they were also to murder Adderley at
[Appellant]’s request, and for free. However, McCray
testified that [Appellant] offered the parties “a large
amount of money” to murder Adderley, more specifically,
they would receive $50,000 or $60,000 for the homicide,
which they could retrieve from Adderley’s Johnstown
apartment after the murder.
Adderley was not home when the trio first arrived, so they
drove around and returned later, at which point, Adderley
had returned. As Ziegel narrated:
Washington and McCray grab the box of fake cocaine,
and they walk up to the door. . . It’s still early in the
morning, probably about 8:30, 9, sometime . . . I’m
sitting out in the car. I was smoking a cigarette,
waiting for them to come out . . . I’m sitting in there
smoking my cigarette, and the next thing you know, I
hear six, seven gunshots right in a row. And a little bit
after that, they come walking out like nothing even
happened, hop back in the car, told me to pull out and
drive, drive slow.
According to McCray, he and Washington entered
Adderley’s home. Washington handed Adderley the
product, and McCray asked if he could use the bathroom.
While McCray was in the bathroom, he heard Adderley yell
-8-
J-S54034-17
“What the ‘F’ is this?” after which he exited the bathroom
to see Adderley facing away, examining the bag. When
Adderley turned around, McCray fired.[7] According to
McCray, at that point, he still did not know that the drugs
were fake.
The parties drove off and disposed of the evidence, after
which they went to Adderley’s other apartment in
Ferndale, Pennsylvania. Ziegel could not recall whether
[Appellant] had called someone in the car or vice versa,
but Ziegel was handed a phone, and [Appellant] was on
the other end of the line asking “how the Godfather Part II
went, jokingly; and I said all right because I didn’t know
what else to say. And I handed the phone back to
McCray.” As Ziegel put it,
We all go up to the apartment. I wait in the living room
and they go back in the bedroom and change into
different clothes, and they were looking for something.
I, I don’t know what that something was. So they finish
up. And we all leave. We all get back into the car. . . .
We head back to Perth Amboy, New Jersey.
The three eventually found [Appellant] in Brooklyn. Ziegel
smoked some marijuana and drank some vodka to calm
his nerves while [Appellant] prepared “the next little
package” for Ziegel to leave with so Ziegel would not have
to return anytime soon. Ziegel wanted to leave
immediately to go back to Erie, but [Appellant], McCray,
and Washington took a vote, deciding that Ziegel was
required to stay and rest up before he left. Ziegel was
arrested two days later. Ziegel had slept for most of his
first day back in Erie. The next day, he went out “to kind
of clear my mind and everything, and ended up getting
stopped by the Game Commission.” About six days later,
on August 25, 2009, he gave a statement to the police
implicating [Appellant] in Adderley’s murder. Ziegel
testified at [Appellant]’s preliminary hearing under a grant
____________________________________________
7
Defense counsel objected to publication of photographs depicting
Adderley’s dead body because of their “shock value.” N.T., 4/10/12, at 61-
62, 85.
-9-
J-S54034-17
of immunity, and on February 16, 2012, Ziegel pleaded
guilty to third degree murder.
PCRA Ct. Op., 1/11/17, at 1-9 (citations omitted). Washington and McCray
both testified for the Commonwealth, and both pleaded guilty to third degree
murder for their roles in Adderley’s death. N.T., 4/11/12, at 91, 161-62.
3. Testimony During Trial Concerning Other Murders
We now turn to the testimony by Ziegel that lies at the heart of this
appeal—testimony that the deceased, Adderley, committed a murder at
Appellant’s request, and Appellant himself committed a gruesome murder by
injecting a victim with battery acid.
During the Commonwealth’s direct examination, Ziegel testified,
without objection, that Adderley “took a homicide” for Appellant on a prior
occasion. N.T., 4/10/12, at 138-39. Ziegel then testified, without objection,
that he also witnessed Appellant commit a murder in New York by injecting
the victim with battery acid, a so-called “hot shot”:
BY THE DISTRICT ATTORNEY:
Q. Were you ever present in New York when a hot shot
was administered?
A. Yes, I was.
Q. Explain to the jury what a hot shot is.
A. A hot shot is a needle filled with battery acid.
Q. What kind of needle?
A. A hypodermic needle or an insulin needle.
- 10 -
J-S54034-17
Q. And what did you see?
A. Shortly after I got busted in [Ocean City,] Maryland, I
got out and went back up there, up to Brooklyn; and after
I explained to them what happened and everything, we
went for a ride. And it was me, B-Dave [the deceased, Mr.
Adderley], B-Bop and [Appellant]. And John Barden
(PHONETIC) actually did tell me to stop, there he is.
Q. You're driving the car?
A. Yes. Said stop. There he is. They get out. B-Dave and
B-Bop hold a guy down while C [Appellant] injects him
with a syringe.
Q. He injects him with what?
A. A syringe.
Q. And what happens?
A. The guy stops moving after a little bit and they prop
him up against the Dumpster and get back in and tell me
to go.
Q. And what do they say?
A. I can’t remember exactly what was said. But it was to
the point, let that be a lesson. Don’t mess with us or
something like that. I can’t exactly remember.
Q. And do you think that was a message for you in the
sense that you had just been released again from prison?
A. That’s the way I took it.
Id. at 140-41. We see nothing in the record indicating that the
Commonwealth notified defense counsel, prior to or during trial, of its intent
to introduce this testimony. Nevertheless, defense counsel did not object to
this testimony or move for a mistrial. Id. at 138-41.
- 11 -
J-S54034-17
During Ziegel’s cross-examination, defense counsel asked questions
designed to demonstrate that Ziegel’s “hot shot” testimony was incredible:
A: Well, like I stated before, I still wasn’t fully set on
getting out [of the drug operation]. It wasn’t till I seen
people in our own organization getting shot that kind of
has a way to set your—
Q: So after [Adderley] was murdered, then it occurred to
you that this was probably not a good plan?
A: Yes. That I wanted definitely to get out.
Q: When you saw a guy held down and have battery acid
shoved into his arm and dumped into an alley in Queens, it
never occurred to you, this was a bad idea? The money
was still good?
A: Yes, that did occur to me; but like I said, I was never
dead set on doing it.
Q: But the money was still as attractive even though you
just saw somebody who you never saw again have battery
acid shoved into his vein, that didn’t tell you: I got to stop
and quit right here? You kept going?
A: Yes, I kept going.
N.T., 4/10/12, at 289-90.
4. Closing Argument
During closing, defense counsel argued that Appellant’s “hotshot”
testimony was unworthy of belief:
And while they [Appellant, his co-conspirators, and others]
were there in New Jersey and New York barbecuing,
drinkin’ beers, smoking, some extra people came in there .
. . Lots of people were there. They were hanging out.
During this time . . . [Adderley] arrives . . . They went to
Coney Island together . . . They’re hanging out. You’re a
- 12 -
J-S54034-17
pal. We’re having barbecue. We’re doing this. We are
taking day trips.
If you wanted to really kill Bryant Adderley, why not do it
there? Why not kill him right there? I wasn’t really sure
what happened to that guy who got the hot shot, but they
pumped his arm full of battery acid and dumped him in an
alleyway in Queens, New York, near a dumpster. Sounds
like there were easy opportunities to get rid of someone
there versus anywhere else. I mean it was a possibility.
And everybody said: Best friends. [Adderley] and
[Appellant], best friends. Great friends . . . That’s pretty
nice. And when he’s up in New York and New Jersey and
they go to Coney Island, still everything is okay. And two
days later, he would be back in Somerset and would
[Appellant] send three guys there to kill him? I would
argue to you that’s unlikely.
N.T., 4/12/12, at 20-21.
Defense counsel’s theory of the case was that Appellant was a drug
dealer who had sent three of his crew to Somerset, Pennsylvania to deliver
cocaine. Ziegel cooked up a scheme whereby he and the two gunmen would
deliver fake cocaine to Adderley, take the money, and leave. However,
Adderley realized that the drugs were actually fake and confronted the two
gunmen, who shot him to death and fled in a vehicle with Ziegel. When it
became clear that police believed they had planned to murder Adderley,
they blamed Appellant to facilitate a deal to plead guilty to third degree
murder. Defense counsel articulated this theory as follows during his closing
argument:
So they package up their cocaine, so Mr. Ziegel says, and
we were all packaging up fake cocaine. But Toriano
McCray, he had a little bit more information about the
- 13 -
J-S54034-17
packing of cocaine in New Jersey than anybody else. He
said, Hey, I took some of that cocaine; it was cocaine; it
wasn’t baking soda. I’ve done coke before. I know what it
was.
So it was real cocaine . . . It was a . . . regular delivery.
Nothing more and nothing less. But Mr. Ziegel needed
$12,000 and he needed it bad. He needed it so bad that
he figured: I’ll take the ten ounces you gave me of real
cocaine that I pucked up and I’ll also have my own supply
of fake cocaine that I’ve pucked up. And I’ll hand these
two guys that come with me, who are supposed to deliver
real cocaine and pick up real money, I’ll hand them the
fake cocaine and we’ll get his money and we’ll have the
drugs and I can go back to doing business in Erie County .
..
Now, we have a bit of a problem here . . . in the moments
described by Toriano McCray, you might want to double-
check that. Because, as I said . . . Toriano McCray went
into the bathroom [at Adderley’s residence] . . . [and]
Toriano [had previously] picked up[] real coke. And he
walked in and he went to the bathroom and he heard the
voice of [Adderley] saying . . . “What the fuck is this?”. . .
It took . . . a half a second for [Adderley] to realize that
this was fake. This wasn’t real.
Mr. Ziegel talked about how everybody pretty much was
armed. And before a problem ensued, as soon as he heard
that, Toriano McCray said: I was out of the bathroom firing
my gun . . . But the reality is: In that second . . . that was
a defensive move. That was a move of: I didn’t think that
this guy was going to look in the box that quickly and I
didn’t know what the problem was because I think this is
real coke. But I’m coming out to make sure that I don’t
get shot by somebody. And that’s what Toriano McCray
did. This was to be a robbery and they were going to steal
his drugs and money. But this thought process belonged
solely to Rookie, Mr. Ziegel. It’s his plan. I’m going to rob
them and I’ll have the drugs and money and I’m half-
baked on coke, so I’m completely protected here. And we
are going to rob this guy. And that robbery went bad. It
went real bad. It went bad very fast.
- 14 -
J-S54034-17
And I know that Toriano McCray said: Oh, yeah, I saw
them package up real coke. I know he said that. But I
believe that Toriano McCray [then] knew what they were
going to deliver was fake coke for a robbery. And you
want to know why? . . . They took the time to get [the
victim’s] keys, his wallet and his cell phone. If you
thought that was real coke, you would take that with you,
too. That’s worth $10, $12,000. It’s ridiculous not to take
that box with you. And it leaves more of a mystery for the
police, quite frankly, because now they just have a dead
body. They don’t have anything . . . .
Ladies and gentlemen, this was a robbery to steal drugs
and money and that plan was hatched by one person: Mr.
Ziegel. And Mr. Ziegel had plenty of opportunity to
convince two poor guys, McCray and Washington, that
they can make money off of this deal. They were both out
of work. They were not connected into this operation.
They weren’t Generals . . . They were nothing. And they
had a chance to make some quick money. I would argue
to you that this murder was not as intentional as it
seemed. It was a robbery gone bad, pure and simple,
hatched by Ziegel, hatched by Rookie so that he could
have his drugs, get money, and nobody else could get it
and be ready to go.
Id. at 22-26, 33.
5. Evidentiary Hearing On PCRA Petition And PCRA Court’s
Decision
Defense counsel noted that Appellant was charged with two substantial
charges: first degree murder and running a drug dealing operation. N.T.,
4/27/16, at 25. Defense counsel contended that his first priority was to
“beat the murder-one charge” because a conviction for this offense would
mandate life imprisonment without parole. Id. He elaborated that “the
strategy going on was simple. I’m not a murderer. I didn’t direct anybody
- 15 -
J-S54034-17
to commit a murder on my behalf. I may be a drug dealer, but I’m not
going to kill my best friend.” Id. at 26.
PCRA counsel asked why trial counsel remained silent during Ziegel’s
testimony about the “hot shot” murder. Defense counsel answered:
I believe that every word that came out from Mr. Ziegel’s
mouth was either a lie or an exaggeration or an imaginary,
I’m a bigger person than you know.
I spent a lengthy time[,] I believe[,] at sidebar[, and] both
the DA and I were admonished for how long it took to get
through his testimony. And because I needed to establish
that every word that came out of it was pure unmitigated
garbage, that he was not credible on a shot.
The fact that he’s telling tales out of school, this is the
same person who explained how suddenly he got
promoted every time he got arrested and charged
criminally; that [Appellant] somehow would say, oh, now
that you’ve been arrested and criminally charged and
you’re costing me more money and lost drugs, that
somehow I’m going to make you a lieutenant in the
organization and move you up because you’re impressing
me with your skill as a drug dealer for me.
N.T., 4/27/16, at 49. PCRA counsel also inquired as to why defense counsel
did not object to the other homicide testimony, and defense counsel
explained:
More puffery and nonsense from Mr. Ziegel about what a
big, bad—I want to say ass—drug dealer he was. Look
how cool I am, I go to New York, I talk about murders,
murders being committed left and right and how tough we
are. On cross-examination I believe I established, not
convincingly to the jury, that pretty much his story didn’t
make any sense. I’m getting promoted up through failure;
and I think that’s exactly what I argued at closing
argument, that he was being promoted up through his
failure as a drug dealer.
- 16 -
J-S54034-17
Id. at 50-51.
PCRA counsel argued that defense counsel had no reasonable basis for
failing to object to the “hot shot” evidence and the evidence that Adderley
committed murder at Appellant’s direction. Id. at 84. PCRA counsel added:
“I can’t believe that [this evidence] wouldn’t have made a difference in this
case. When your client has now been admitted to have committed [or been]
involved in two other murders . . . the jury [is] tainted beyond measure at
that point [and is] going to issue a guilty verdict . . .” Id.
The PCRA court responded:
So if I understood [defense counsel] correctly, he said I
didn’t object to those sensational stories that Ziegel was
telling because he was just making that stuff up because
he was a liar and he wanted to look good. So if that’s the
defense theory and that’s why he didn’t object, okay, I
understand that. But then, to be honest, as I’m sitting
here now, you know, I have to say that, doggone, the stuff
that came out, those lies, if that’s what they were, sure
seemed awfully damaging.
Id. at 92. The court added:
[E]ven [defense counsel’s closing] argument was
consistent . . . with what he is describing as his strategy
today, which is that they’re all liars and everything they
say is a lie. My guy didn’t do it. He wasn’t there. They’re
all lying. That was the defense theory. My question
becomes: well, if that was the theory and that was the
strategy, what happens when you let in stuff that’s so
damaging, that it—I mean even I was thinking to myself,
ouch . . . .
I want[] to know if there was a case out there, that I’ll call
the “ouch” case now, that says when it’s that bad, you
have to overlook strategy.
- 17 -
J-S54034-17
Id. at 93, 94.
Ultimately, the PCRA court determined that defense counsel had a
reasonable trial strategy:
[A]ccording to the defense’s theory of the case, Ziegel
himself had orchestrated the robbery-gone-wrong. It was
therefore important to highlight the inconsistencies in his
account of the murder, including, e.g., the fact that
[Appellant] and Adderley were on good terms just days
before the murder; Ziegel testified that he had pucked up
fake cocaine with [Appellant] in order to dupe Adderley,
however McCray testified that the cocaine that was pucked
up was real cocaine—yet, nevertheless, fake cocaine ended
up at the scene of the murder; and that if [Appellant] had
allegedly committed a prior murder without detection in
New York, then he could have committed this murder in
the same manner instead of ordering the murder as Ziegel
described. [Defense counsel] also emphasized
inconsistent and incredulous aspects of Ziegel’s story
generally, i.e., that Ziegel had repeatedly cost [Appellant]
money and drugs, but purportedly continued to get
promoted in the organization; that Ziegel had witnessed a
murder and heard about another, but that was not enough
to cause Ziegel to extricate himself from the organization,
yet his participation in Adderley’s murder was, for an
undetermined reason, sufficient for Ziegel to report
[Appellant] to the police.
[Defense counsel] had a coherent theory of the case, and
we cannot say that the method he chose to present his
theory of the case had no “reasonable basis designed to
effectuate his client’s interests.” . . . In viewing [defense
counsel]’s actions “in light of all the circumstances,” we
similarly cannot say that “the identified acts or omissions
were outside the wide range of professionally competent
assistance,” . . . even though [defense counsel]’s strategy
carried considerable risks.
PCRA Ct. Op. at 26.
DISCUSSION
- 18 -
J-S54034-17
1. Questions Presented And Standard Of Review
Appellant raises the following questions on appeal:
A. Whether, under both Pennsylvania and federal law,
former trial counsel was constitutionally ineffective, thus,
requiring vacation of conviction and grant of new trial,
where former trial counsel’s stated trial strategy as
revealed at the PCRA evidentiary hearing in this matter
was pure afterthought[?]
B. Whether, under both Pennsylvania and federal law,
former trial counsel was constitutionally ineffective, thus,
requiring vacation of conviction and grant of new trial,
where assuming former counsel’s statement of trial
strategy to be true, trial counsel’s highly prejudicial
conduct at trial, including, but not limited to, his failure to
object to and, in fact, even, himself, eliciting evidence of
alleged prior bad acts regarding his own client, in no way
advanced counsel’s stated trial strategy[?]
C. Whether, under both Pennsylvania and federal law,
former trial counsel was constitutionally ineffective, thus,
requiring vacation of conviction and grant of new trial,
where, whether advancing trial strategy or not, former
counsel’s conduct at trial, including, but not limited to, his
failure to object to and, in fact, even, himself, eliciting
evidence of alleged prior bad acts regarding his own client,
was so prejudicial that it so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place[?]
D. Whether, under both Pennsylvania and federal law,
former trial counsel was constitutionally ineffective, thus,
requiring vacation of conviction and grant of new trial,
where the cumulative effect of all errors committed by trial
counsel before and during trial so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place[?]
Appellant’s Brief at 6-7.
- 19 -
J-S54034-17
A PCRA petitioner will be granted relief only when he proves, by a
preponderance of the evidence, that his conviction or sentence resulted from
the “[i]neffective 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. § 9543(a)(2)(ii). “Our standard of review of a PCRA court’s
dismissal of a PCRA petition is limited to examining whether the PCRA
court’s determination is supported by the evidence of record and free of
legal error.” Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super.
2003) (en banc) (citation omitted).
It is well settled 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. Strickland v. Washington, [ ]
104 S. Ct. 2052, [ ] (1984). This Court has characterized
the Strickland standard as tripartite, by dividing the
performance element into two distinct parts.
Commonwealth v. Pierce, [ ] 527 A.2d 973, 975 ([Pa.]
1987). Thus, to prove counsel ineffective, [the a]ppellant
must demonstrate that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) [the a]ppellant was prejudiced
by counsel’s act or omission. Id. at 975.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). “If a petitioner
fails to prove any of these prongs, his claim fails.” Commonwealth v.
Simpson, 66 A.3d 253, 260 (2013) (citation omitted).
- 20 -
J-S54034-17
Generally, counsel’s assistance is constitutionally effective if he chose
a particular course of conduct that had some reasonable basis designed to
effectuate his client's interests. See Commonwealth v. Ali, 10 A.3d 282,
291 (Pa. 2010). Where matters of strategy and tactics are concerned, “[a]
finding that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered a potential
for success substantially greater than the course actually pursued.”
Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (quotation and
quotation marks omitted). To sustain a claim of ineffectiveness, counsel's
approach must be “so unreasonable that no competent lawyer would have
chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-63 (Pa. 2000).
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.” Commonwealth v.
King, 57 A.3d 607, 613 (Pa. 2012) (quotation marks and citation omitted).
“[A] reasonable probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.” Ali, 10 A.3d at 291 (citation
omitted). The test for prejudice in the ineffectiveness context is more
exacting than the test for harmless error:
[A] defendant [raising a claim of ineffective assistance of
counsel] is required to show actual prejudice; that is, that
counsel’s ineffectiveness was of such magnitude that it
‘could have reasonably had an adverse effect on the
outcome of the proceedings.’ This standard is different
from the harmless error analysis that is typically applied
- 21 -
J-S54034-17
when determining whether the trial court erred in taking or
failing to take certain action. The harmless error standard,
as set forth by this Court . . . states that “[w]henever
there is a ‘reasonable possibility’ that an error ‘might
have contributed to the conviction,’ the error is not
harmless.” This standard, which places the burden on the
Commonwealth to show that the error did not contribute to
the verdict beyond a reasonable doubt, is a lesser standard
than the . . . prejudice standard, which requires the
defendant to show that counsel’s conduct had an actual
adverse effect on the outcome of the proceedings. This
distinction appropriately arises from the difference
between a direct attack on error occurring at trial and a
collateral attack on the stewardship of counsel. In a
collateral attack, we first presume that counsel is effective,
and that not every error by counsel can or will result in a
constitutional violation of a defendant’s Sixth Amendment
right to counsel.
Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (citations omitted).
We address the first three issues on appeal together, because they
relate to the same issue: whether defense counsel provided ineffective
assistance by permitting Ziegel to testify, without objection, about
Appellant’s “hot shot” murder and the murder that Adderley committed at
Appellant’s direction. We conclude that counsel provided ineffective
assistance, thus necessitating a new trial.
1. Arguable merit
Appellant’s claim of ineffective assistance has arguable merit. The
normal channel for admitting evidence of prior bad acts is Pa.R.E. 404(b)(2),
which provides that evidence of crimes other than the charged offenses
“may be admissible for purpose[s] such as proving motive, opportunity,
- 22 -
J-S54034-17
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” In addition, Rule 404(b)(2) permits admission of prior offenses
under the res gestae exception, “where the evidence became part of the
history of the case and formed part of the natural development of the facts.”
Commonwealth v. Cousar, 154 A.3d 287, 304 (Pa. 2017). “In a criminal
case,” however, evidence of prior crimes “is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.
404(b)(2). We cannot see how the evidence in question fits within any Rule
404(b)(2) exception. For example, we do not think that the “hot shot”
murder was part of the natural history of this case; it is a horrific, but
completely unrelated, act of violence. The Commonwealth implicitly appears
to agree that this evidence is irrelevant, for it makes no argument in its brief
that it was admissible under any rule of evidence. Further, assuming that it
met any test of relevance, its potential for prejudice far outweighed its
probative value, a subject we discuss in greater depth below.
2. Lack of reasonable trial strategy
Defense counsel testified at the PCRA hearing that he refrained from
objecting because he thought Ziegel’s testimony was patently incredible, and
that he could expose Ziegel as a liar during cross-examination and closing
argument, thus persuading the jury to acquit Appellant on the most serious
- 23 -
J-S54034-17
charge of murder. The flaw in this rationale is that this testimony—
particularly the inflammatory evidence of the “hot shot” murder—poisoned
the jury’s view of Appellant. No longer did he look like a drug dealer; he
now was branded as a sadistic, cold-blooded killer. The PCRA court itself
recoiled at this evidence: “[E]ven I was thinking to myself, ouch . . .” N.T.,
4/27/16, at 93. Not surprisingly, the jury took only one hour and forty-six
minutes, including a lunch break, to reach its verdict of guilt. N.T., 4/12/12,
at 76-77.
Two decisions influence our analysis. First, in Commonwealth v.
Moore, 715 A.2d 448 (Pa. Super. 1998), the jury found the defendant guilty
of robbery, attempted murder and other crimes arising from a home
invasion. Moore, 715 A.2d 449-50. A police lieutenant testified, without
any objection, that the defendant’s housemate told him that the defendant
was on probation or parole, which led the police to pull the defendant’s
photograph from department files. Id. at 450-51. The lieutenant also
testified that the defendant requested that his parole officer be present at
the time he made his statement to the police. Id. at 451. The defendant’s
parole officer testified that he was present when the defendant made his
confession, and that the defendant had been released on parole. Id.
Defense counsel
made no objection to this evidence. In fact, in his opening
statement, [defense counsel] described his client as a
convicted felon who had spent much of his life in jail . . .
After [the defendant] took the witness stand in his own
- 24 -
J-S54034-17
defense, [defense counsel] elicited testimony from [the
defendant] indicating that he had prior criminal convictions
for aggravated assault, forgery, and two robberies . . .
[The defendant] further explained that he was currently on
parole for robbery. [Defense counsel] never requested nor
did the trial judge give a cautionary instruction regarding
the jury’s use of the foregoing evidence.
Id. (citations omitted).
The jury found the defendant guilty of multiple felonies, and this Court
affirmed his judgment of sentence. Id. at 450. The defendant filed a PCRA
petition which the court granted on the basis of ineffective assistance of
counsel. Id. This Court affirmed, reasoning that defense counsel had no
reasonable basis for allowing the evidence relating to the defendant’s parole
status and history of crimes that did not involve dishonesty:
The Commonwealth . . . contends that [defense counsel]
had a reasonable basis for his actions. The
Commonwealth asserts that [the defendant]’s parole
status needed to be introduced to explain [his] parole
officer[’s] presence at [the defendant]’s confession and the
manner in which the police obtained [the defendant]’s
photograph. Moreover, the Commonwealth maintains that
[defense counsel] had a reasonable basis for eliciting
testimony from [the defendant] regarding his previous
convictions because this questioning was part of a trial
strategy to establish that, despite [the defendant]’s
criminal history, he was not guilty of the crimes charged.
. . . [T]he evidence relating to [the defendant]’s parole
status had no probative value and carried a material
prejudicial impact. Such evidence did not relate to the
crimes charged and was not a necessary part of the
Commonwealth’s case. The manner in which the police
acquired [the defendant]’s photograph would not assist the
jury in evaluating the evidence, and contrary to the
Commonwealth’s assertion, it was not necessary to apprise
the jury of [the parole officer’s] relationship with [the
- 25 -
J-S54034-17
defendant]. Rather, by permitting the Commonwealth to
indicate that [the defendant] was on parole, [defense
counsel] enabled the jury to infer that [the defendant] had
been involved in other criminal activity. This evidence
would tend to lead a jury to conclude that [the defendant]
would be likely to have committed the crimes in question.
See Commonwealth v. Sanchez, [] 595 A.2d 617, 620
([Pa. Super.] 1991) (noting that references to the
defendant as an illegal alien were prejudicial because they
permitted the jury to infer that the defendant was prone to
engage in criminal conduct).
Furthermore, while the Commonwealth could have
introduced [the defendant]’s robbery and forgery
convictions as crimen falsi to impeach [the defendant]’s
testimony, [the defendant]’s aggravated assault conviction
could not have been used for impeachment purposes. See
generally Commonwealth v. Yarris, [] 549 A.2d 513,
521 ([Pa.] 1988) (noting that a witness may be impeached
by evidence that he has prior crimen falsi convictions,
meaning those that bear on a witness’s honesty and
truthfulness, such as robbery or theft). Though defense
counsel may seek to introduce evidence of the defendant’s
prior convictions in an effort to prevent the prosecution
from first bringing out such evidence on cross-examination
of the defendant, before doing so, counsel must be
convinced that the evidence is available to the prosecution
to impeach the defendant. Commonwealth v. Zapata, []
314 A.2d 299, 301 ([Pa.] 1974) (holding that because the
defendant’s prior voluntary manslaughter convictions were
not competent evidence in his trial on charges of
aggravated assault, and because the defense “rested
squarely” on the credibility of the defendant’s own
testimony, trial counsel rendered ineffective assistance by
introducing evidence of these convictions).
Here, because [the defendant]’s previous aggravated
assault conviction is not in the nature of crimen falsi and
does not fall within the exceptions related to other crime
evidence, the Commonwealth could not have introduced
this conviction. See Commonwealth v. Seiders, [] 614
A.2d 689, 692 ([Pa.] 1992) (awarding the defendant a new
trial where the defendant’s previous sexual assault
convictions were admitted in his trial for sexual assault and
- 26 -
J-S54034-17
no exception permitting the introduction of such evidence
applied). Nor is it apparent how such a strategy of
introducing [the defendant]’s criminal history, which
evidenced a pattern of conduct that resembled the charges
against him, would be beneficial to [the defendant]’s case.
Indeed, [the defendant]’s defense relied heavily on his
own credibility, and evidence of his prior crimes could do
nothing but undermine his testimony. See
Commonwealth v. Bond, [] 396 A.2d 414, 418 ([Pa.
Super.] 1978)(granting a new trial on grounds that the
defendant’s credibility was improperly undermined in his
trial on robbery and assault charges, by evidence that the
defendant had previously attempted to extort money from
the victim). A jury, viewing the evidence in light of [the
defendant]’s aggravated assault conviction, would likely
conclude that because [the defendant] had previously
been convicted of aggravated assault, he had a propensity
to commit crimes of violence such as those perpetrated [in
this case]. After considering the nature of the references
to [the defendant]’s criminal history and due to the fact
that these references were extensive, we agree with the
PCRA court that [defense counsel] lacked a reasonable
basis for his actions . . . See also Commonwealth v.
Holloman, [] 621 A.2d 1046, 1051 ([Pa. Super.] 1993)
(holding that the defendant was entitled to a new trial
where in his trial on robbery charges, the prosecution
introduced evidence establishing that drugs had been
found in his residence; the prior crimes evidence had no
probative value and only served to damage the
defendant’s character).
Id. at 451-52.
Second, in Commonwealth v. Candia, 428 A.2d 993 (Pa. Super.
1981), on direct examination, defense counsel asked the defendant, who
was charged with possession with intent to deliver (“PWID”), whether he had
ever been convicted of a crime. Candia, 428 A.2d at 996. Defense
counsel’s purpose in asking this question was to “demonstrate [the
defendant’s] honest recollections of past criminal acts [and] to prove [the
- 27 -
J-S54034-17
defendant] credible.” Id. The defendant answered that he had pleaded
guilty to a marijuana charge, which opened the door for the Commonwealth
to “ridicule[] his character with the introduction of his past drug-related
criminal activity.” Id. The trial court, sitting without a jury, found the
defendant guilty of PWID. Id.
This Court reversed and remanded for a new trial on the basis of
ineffective assistance:
Trial counsel’s strategy in seeking this testimony was
grossly inappropriate for the purposes he sought to
achieve. The right to full cross-examination which does not
go beyond the scope of the direct examination is
guaranteed . . . Trial counsel’s decision to question the
appellant about his past criminal acts served only to invite
very damaging cross-examination by the Commonwealth.
Certainly, trial counsel, who was effective, would not have
placed [the defendant] on the stand under a theory so
tenuous as to believe admission of previous criminal acts
would demonstrate credibility. Even if so incredible a
theory were possible, no reasonable strategy would follow
which included the invitation to the Commonwealth to use
evidence of previous convictions against the appellant.
Id.
Moore and Candia illustrate the risk, and sometimes the outright
folly, of allowing irrelevant prior crimes into evidence based on the notion
that it will enhance the defendant’s credibility, or diminish a prosecution
witness’s credibility, in the eyes of the factfinder. Perhaps this strategy is
reasonable when the prior crimes are mundane and the use of this evidence
will expose the Commonwealth witness as a prevaricator. Even then, this
- 28 -
J-S54034-17
approach is dangerous, as Moore and Candia demonstrate. But if the prior
crimes are as shocking as these, the odds increase exponentially that the
jury will focus on the incendiary facts and ignore any message about
credibility that defense counsel wants to convey. That is what happened
here. While defense counsel hoped Ziegel’s testimony about Appellant’s
prior murders would make Ziegel look like a liar, the inflammatory “hot shot”
evidence made Appellant look like a hardened murderer. No reasonable
attorney would have employed a strategy that was so susceptible to
backfiring.
In addition, defense counsel eschewed an alternative that “offered a
potential for success substantially greater than the course actually pursued.”
Colavita, 993 A.2d at 887. The Commonwealth violated Pa.R.E. 404 by
failing to provide advance notice of its intent to use the “hotshot” evidence
or Appellant’s order for Adderley to commit murder. See Pa.R.E. 404(b)(3)
(“[i]n 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”). Moreover, this evidence does not appear to
be admissible under Pa.R.E. 404(b)(2).8 Consequently, when the
____________________________________________
8
Pa.R.E. 404(b)(2) provides that “other acts” evidence may be admissible to
prove, inter alia, “motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Moreover, “in a criminal
(Footnote Continued Next Page)
- 29 -
J-S54034-17
Commonwealth adduced this evidence during Ziegel’s direct examination,
defense counsel should have moved for a mistrial due to lack of notice, lack
of relevance and potential for unfair prejudice. Pa.R.E. 404(b)(2), (3). The
trial court probably would have granted this motion, given its visceral “ouch”
reaction to this evidence, and even if it had denied this motion, Appellant
would have had meritorious grounds for seeking a new trial on direct appeal.
3. Prejudice
This evidence prejudiced Appellant because it “could have reasonably
had an adverse effect on the outcome of the proceedings.” Spotz, 84 A.3d
at 315. As stated above, this evidence could not help but poison the jury
against Appellant. Without this evidence, multiple discrepancies in the
testimony of key prosecution witnesses would have made the case
substantially more difficult for the Commonwealth to win. The three main
Commonwealth witnesses—Ziegel, McCray, and Washington—did not agree
on the reason that they traveled to Adderley’s residence in Somerset
County. Ziegel testified that the purpose of the visit was to rob Adderley;
Washington testified that their purpose was to rob Adderley and then murder
him “for free”; and McCray testified that Appellant told them to murder
Adderley and take $50,000 or $60,000 from another apartment as payment.
_______________________
(Footnote Continued)
case, [other acts] evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice.” Id.
- 30 -
J-S54034-17
Ziegel testified that he pucked up fake cocaine with Appellant in order to
defraud Adderley. McCray, however, testified that the pucked-up cocaine
was real, but fake cocaine ended up at the murder scene. In addition,
Ziegel’s description of his rise within Appellant’s organization was at odds
with his inability to avoid getting arrested. To hear Ziegel tell it, he received
promotions or favors every time that he wound up behind bars—hardly the
record of a star performer in a criminal enterprise. Finally, Ziegel testified
that Appellant and Adderley appeared to be on good terms just days before
the murder; they had gone to Coney Island together, barbecued together,
and otherwise enjoyed one another’s company. Absent the evidence of the
unrelated murders, we think it possible that defense counsel might have
been able to persuade the jury to reach a different verdict on the basis of
these inconsistencies. Without the “hot shot” evidence, the jury might have
found that Appellant lacked the intent to murder or conspire to murder
Adderley and acquitted Appellant of murder and conspiracy.
The corrupt organizations verdict might have changed as well. The
corrupt organizations charge required the Commonwealth to prove a
“pattern of racketeering activity,” that is, “a course of conduct requiring two
or more acts of racketeering activity.” 18 Pa.C.S. § 911(b)(3) & (h)(4).
Murder is an “act of racketeering activity.” 18 Pa.C.S. § 911(h)(1)(i). The
two alleged acts of racketeering in this case were “illegally possessing and
distributing controlled substance[s]” and “the homicide.” N.T., 4/12/12, at
- 31 -
J-S54034-17
53 (jury instructions). Thus, had defense counsel convinced the jury to
acquit Appellant on the murder charge, it likely would have acquitted him on
the corrupt organizations charge as well due to the lack of a pattern of
racketeering activity.
The verdict on the charge of criminal use of a communication facility
might also have changed. The Crimes Code provides: “A person commits a
felony of the third degree if that person uses a communication facility to
commit, cause or facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under . . . [t]he
Controlled Substance, Drug, Device and Cosmetic Act.” 18 Pa.C.S. §
7512(a). The trial court instructed the jury that it could find Appellant guilty
if it determined that he used his cell phone to “facilitate . . . the commission
of the crimes of distribution of a controlled substance and homicide.” N.T.,
4/12/12, at 60 (emphasis added). Thus, a different decision on the murder
charge might have changed the verdict under section 7512 as well.
Finally, with regard to the charge of sale of a non-controlled
substance, our lack of confidence in the verdicts on the other charges
influences us to order a new trial on this charge as well.
CONCLUSION
- 32 -
J-S54034-17
Appellant raises multiple additional claims of ineffective assistance in
his brief, but we need not address them in view of our decision to grant him
a new trial based on the issue examined above. We therefore reverse the
PCRA court’s order denying relief and remand for a new trial on all charges.
Order reversed. Judgment of sentence vacated. Case remanded for
new trial. Jurisdiction relinquished.
Judge Ott Joins.
Judge Moulton Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/26/2017
- 33 -