Com. v. Campbell, S. ( 2023 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMMIE CAMPBELL :
:
Appellant : No. 578 EDA 2022
Appeal from the PCRA Order Entered February 15, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0013197-2008.
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J: FILED JUNE 6, 2023
Sammie Campbell appeals pro se from the order denying his second
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A.
§§ 9541-46. We affirm.
The PCRA court summarized the pertinent facts and procedural history
through Campbell’s direct appeal as follows:
On or about October 30, 2007, [Campbell] was arrested and
was charged with inter alia attempted murder and conspiracy to
commit murder for the September 12, 2007 shooting that
occurred on Mifflin Street. [Campbell], along with his co-
conspirators Markeem Vicks and Maurice Wilkerson, were involved
in two related shooting battles between rival gangs in South
Philadelphia.
The first of these (“the Mifflin Street shooting”) occurred
around 3:00 p.m. on the 400 and 500 blocks of Mifflin Street, a
quiet residential block. Later that evening, [Campbell] and his co-
conspirators took part in a second gunfight that occurred on or
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around the 500 block of Moore Street (“the Moore Street
shooting”). The second gun battle targeted Anthony Alonzo Reid,
who suffered multiple near-fatal gunshot wounds.
In 2010, [Campbell] was convicted of attempted murder
and related charges in a non-jury trial[.] That conviction was
vacated, and the case was remanded for a new trial, following
PCRA litigation in which [Campbell] alleged that trial counsel was
ineffective for failing to investigate or present Erlene Muirhead,
[Campbell’s] girlfriend, as an alibi witness.
In between [Campbell’s] original 2010 trial and his retrial in
2015, the victim, [Reid], was killed in another shooting.
Additionally, Wilkerson and Vicks pled guilty to their roles in [the
Moore Street shooting] and admitted that they participated in a
conspiracy together with [Campbell] to attack Reid.
In 2015, represented by new counsel, [Campbell] was re-
tried before this court and a jury. At that trial, the Commonwealth
presented the testimony of Wilkerson and Vicks, including their
guilty pleas. [Reid’s] testimony from the 2010 trial was read into
the record, as Reid was unavailable to testify in person due to his
death. [Campbell] called [Muirhead] as an alibi witness.
On December 15, 2015, the jury convicted [Campbell] of
attempted murder, criminal conspiracy, and possession of an
instrument of crime, relating to the Moore Street shooting, which
targeted [Reid]. [Campbell] was acquitted of all charges relating
to the Mifflin Street shooting.
[Campbell] filed a timely direct appeal raising three claims:
(1) that the trial court erred in expressing skepticism toward
[Vicks’] testimony; (2) that the prosecutor committed misconduct
in cross-examining [Muirhead] about why she failed to come
forward as an alibi witness immediately; and (3) that the trial
court abused its discretion by admitting two recorded prison
conversations involving [Wilkerson].
The Superior Court rejected all three of [Campbell’s] claims
as meritless and affirmed the judgment of sentence.
Commonwealth v. Campbell, 996 EDA 2016 (Pa. Super. 2017).
The Pennsylvania Supreme Court denied [Campbell’s] petition for
allowance of appeal on August 6, 2018.
Rule 907 Notice, 1/6/22, at 1-2 (unnumbered) (formatting altered).
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The PCRA court summarized the subsequent procedural history as
follows:
[Campbell] initiated PCRA proceedings on September 15,
2018. New counsel was appointed to represent him. After
conducting an independent review of the record and determining
that three were no meritorious issues to be raised, counsel filed a
no-merit brief and petition to withdraw pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
On May 20, 2019, after reviewing the Finley letter, issuing
notice of its intent to dismiss under Rule 907, and considering
[Campbell’s] pro se responses to both the Finley letter and the
907 notice, this court formally dismissed the PCRA petition.
[Campbell] did not file an appeal.
Rule 907 Notice, 1/6/22, at 2 (unnumbered) (formatting altered).
On September 6, 2019, Campbell filed the PCRA petition at issue, his
second. Thereafter, several pro se filings and changes of counsel followed.
Ultimately, privately-retained counsel entered his appearance, and, on
September 7, 2021, filed a “Second Amended/Supplemental PCRA Petition”
on Campbell’s behalf. In this amended petition, Campbell raised the following
four claims: 1) that trial counsel was ineffective for failing to request a mistrial
due to the prosecution’s belated disclosure of evidence concerning Muirhead
and Officer Nancy Morley; 2) that the trial court erred in permitting Campbell’s
two cases to be joined for trial; 3) that trial counsel was ineffective for failing
to object to the admission of Wilkerson and Vicks’ guilty pleas a trial; and 4)
that the jury’s verdict was “an affront to the incontrovertible physical facts
doctrine.” Amended Petition, 9/7/21, at 7.
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On January 6, 2022, the PCRA court issued a Pa.R.Crim.P. 907 notice of
its intent to dismiss Campbell’s petition without a hearing because the issues
he raised, although arguably waived, were nonetheless without merit. The
court explained:
Despite [Campbell’s] argument to the contrary, these claims
are partially or entirely waived. While [Campbell’s] second
petition was initiated within the one-year window set forth by 42
Pa.C.S. § 9545(b)(1), and is therefore timely, it is a second
petition. [Campbell] had the opportunity to raise all of these
issues on direct appeal and/or during his first PCRA petition and
he did not do so. His claims are therefore waived.
In order to evade waiver, [Campbell] would have to be able
to show that prior counsel was ineffective for failing to raise and/or
preserve the underlying substantive claims. However, as all of
[Campbell’s] claims are substantively without merit, he cannot
make this showing.
Rule 907 Notice, 1/6/22, at 3 (unnumbered) (formatting altered). The PCRA
court then went on to provide a detailed explanation for this conclusion. See
id. at 1-5 (unnumbered).
This timely pro se appeal followed. The PCRA court did not require
Pa.R.A.P. compliance. Campbell raises the following issues, which we have
reordered as follows:
I. Did the PCRA court abuse its discretion by denying
[Campbell] relief and failing to hold a hearing for trial
counsel’s ineffectiveness for failing to request a
cautionary instruction and/or mistrial when the
Commonwealth introduced both [co-conspirator’s]
guilty pleas as substantive evidence against [him],
violating his due process rights to a fair trial?
II. Did the PCRA court abuse its discretion when it failed
to grant relief and hold a hearing for trial counsel’s
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failure to request a curative instruction and/or mistrial
for the Commonwealth’s discovery violation for not
disclosing (trial by ambush) rebuttal impeachment
(school records) evidence of alibi witness, violating
[Campbell’s] due process rights to a fair trial.
III. Was PCRA counsel ineffective for not raising trial
counsel’s ineffectiveness for failing to preserve for
direct review, and request a curative instruction
and/or mistrial for the inflammatory and prejudicial
admission of [co-conspirator Wilkerson’s] jail calls,
violating [Campbell’s] due process rights to a fair trial.
IV. Was PCRA counsel ineffective for not raising trial
counsel’s ineffectiveness for not investigating
[and/or] presenting impeachment evidence
concerning Detective Edward Tolliver, violating
[Campbell’s] rights to a fair trial (due process).
Campbell’s Brief at 7.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
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Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
In this appeal Campbell continues to claim that this is his first PCRA.
Although he contends that in a previous filing he only sought to compel the
Commonwealth to file private criminal complaints against certain detectives
and police officers, the court treated the filing as a PCRA petition. Further,
the PCRA court appointed counsel, and, in seeking to withdraw, first PCRA
counsel informed the court that his review of the record revealed no issue that
would warrant post-conviction relief. See PCRA Counsel Letter, 2/6/19 at 1.
Nevertheless, because Campbell has cited Commonwealth v. Bradley, 261
A.3d 381 (Pa. 2021), and his claims of ineffectiveness of both PCRA counsel
are raised in some fashion, we will address the merits of his issues.
Each of Campbell’s issues involve a layered claim of ineffectiveness. To
obtain relief under the PCRA premised on a claim that counsel was ineffective,
a petitioner must establish, by a preponderance of the evidence, that counsel's
ineffectiveness so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
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action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.
Id. at 533.
In making a layered claim of ineffectiveness, a PCRA petitioner “must
properly argue each prong of the three-prong ineffectiveness test for each
separate attorney.” Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.
Super. 2012). “In determining a layered claim of ineffectiveness, the critical
inquiry is whether the first attorney that the defendant asserts was ineffective
did, in fact, render ineffective assistance of counsel.” Commonwealth v.
Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010). “If that attorney was
effective, then subsequent counsel cannot be deemed ineffective for failing to
raise the underlying issue.” Id.In his first issue, Campbell asserts that the PCRA court erred and/or
abused its discretion when it rejected his claim that trial counsel was
ineffective for failing to request a mistrial and/or cautionary instruction after
his co-conspirators guilty pleas were introduced into evidence. According to
Campbell, contrary to his alibi, these guilty pleas placed him at the scene and
were used as substantive evidence against him. Campbell’s Brief at 23.
The PCRA court found no merit to this claim. The court first placed
Campbell’s claim in context:
Prior to [Campbell’s] trial, both Wilkerson and Vicks pled
guilty to criminal conspiracy and related charges stemming from
the Moore Street shooting. During both plea colloquies, the
prosecutor read a statement of facts that indicated that
[Campbell] was present at the Moore Street shooting, and both
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Wilkerson and Vicks agreed with that statement of facts. Neither
man, however, made any independent confession or statement
implicating [Campbell] as part of their guilty plea colloquies. At
[Campbell’s] trial, both Vicks and Wilkerson were called as
witnesses, and their guilty pleas were read into evidence.
However, while both men acknowledged their own guilt, they also
both testified that [Campbell] was not present. Vicks said that
“Me and Wilkerson were there that night and we did some
shooting. [Campbell] was nowhere in sight. He wasn’t there;
that’s the truth.” Wilkerson testified that he and Vicks discussed
shooting [Reid], armed themselves after that discussion, and shot
at Reid together, but that “[Campbell] wasn’t there at all. At all.”
PCRA Court Opinion, 5/19/22, at 14 (citations omitted).
Next, the court explained why the guilty pleas were properly admitted
and why there was no basis for trial counsel to object:
Because both Vicks and Wilkerson testified that [Campbell]
was not present at the Moore Street shooting, but had previously
stipulated to his presence under oath during their guilty pleas,
their pleas were admissible as prior inconsistent statements under
Pa.R.E. 803.1(1)(A) (providing that a prior statement by a
declarant-witness is admissible where it is inconsistent with that
declarant-witness’s trial testimony, and the prior statement was
given under oath subject to the penalty of perjury). There was,
accordingly, no basis for trial counsel to object to the admission
of those statements, because they were clearly admissible under
Pa.R.E. 803.1(1)(A)
Additionally, because evidence that Wilkerson and Vicks
pled guilty to the Moore Street shooting was essential to the
defense theory that they alone were responsible for Reid’s
shooting, and that [Campbell] had not be involved or even present
on the scene, there was a reasonable strategic basis for trial
counsel to refrain from objecting to the admission of those pleas.
The defense argument relied on Vicks and Wilkerson taking
responsibility for the crime, and therefore absolving [Campbell] of
any involvement. [Campbell] cannot show that trial counsel acted
unreasonably by failing to object to the admission of Vicks[’] and
Wilkerson[’s] pleas. There was a clear strategic reason for the
defense to want the jury to hear about the guilty pleas, and the
pleas were plainly admissible under the rules of evidence. Absent
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their pleas, the defense theory of the case would have lost much
of its persuasive force. As previously stated, [Campbell] cannot
establish that he was prejudiced, and counsel cannot be found
ineffective for failing to make a frivolous objection.
PCRA Court Opinion, 5/19/22, at 14-15 (footnote omitted; citation corrected).
Moreover, as to Campbell’s argument regarding the necessity of a
curative instruction or motion for mistrial, the PCRA court explained why
Campbell’s reliance on our Supreme Court’s decision in Commonwealth v.
Boyer, 891 A.2d 1265 (Pa. 2006), this Court’s decision in Commonwealth
v. Boyer, 856 A.2d 149 (Pa. Super. 2004), and Commonwealth v. Geho,
302 A.2d 463 (Pa. Super. 1973) was misplaced:
[Campbell] argues that [the above cases] concluded that,
where one or more of several charged defendants plead guilty, it
is incumbent upon the trial judge to give adequate and clear
cautionary instructions to the jury to avoid “guilt by association”
as to the remaining defendant. Therefore, according to
[Campbell], a new trial is warranted since no such instruction was
given, and no objection as made by trial counsel. This argument
also fails.
Here, [Campbell] relies on [Geho, supra,] in support of his
claim of counsel’s ineffectiveness. However, the primary concern
[in] Geho is not present in [Campbell’s] case. Geho involved a
scenario in which three defendants were being jointly tried before
a jury. Midway through the trial, two of the three co-defendants
changed their pleas to “guilty” in the presence of the jury. The
trial then proceeded solely against Geho. The trial court advised
the jury that they were not to be concerned with, or influenced
by, the two co-defendants’ guilty pleas, but to consider Geho’s
guilt strictly based on the trial evidence.
In Geho, the co-defendants’ guilty pleas were
unaccompanied by any substantive evidence. The sole concern
was that the jury would interpret co[-]defendant’s guilty pleas, in
and of themselves, as proof of Geho’s guilt. Here, by contrast,
Wilkerson and Vicks were not [Campbell’s] co-defendants before
this jury. Wilkerson and Vicks’ guilty pleas were introduced not
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simply to show that they had pled guilty, but because their prior
inconsistent statements were admissible as substantive evidence.
See Commonwealth v. Boyer, 856 A.2d 149, 155 (Pa. Super.
2004) (introduction of co-defendant’s guilty plea “was appropriate
because it was used to introduce [other admissible] evidence”).
Furthermore, as previously discussed, evidence concerning
Wilkerson and Vicks’ guilty pleas was crucial to the defense theory
of the case.
While evidence of a co-defendant’s guilty plea might
ordinarily be viewed with caution, due to the risk that the jury
might improperly impute the co-defendant’s guilt to the defendant
on trial, in this case, evidence of the other two co[-]defendants
guilty pleas was the bedrock of the defense argument. Thus, while
a cautionary instruction might have been preferable out of an
abundance of caution, its absence cannot have prejudiced
[Campbell]. His entire defense hinged on the fact that two of his
co-defendants had pled guilty to the Moore Street shooting and,
after acknowledging their own guilt, had testified that [Campbell]
was not there. Under these circumstances, there was little risk
that the jury would improperly attribute the co-defendants’ guilt
to [Campbell].
PCRA Court Opinion, 5/19/22, at 15-17 (citation and some emphasis omitted).
Finally, the PCRA court concluded Campbell was also not prejudiced
because, if any error occurred in failing to give a cautionary instruction, the
error was harmless in light of the overwhelming evidence of Campbell’s guilt:
[A]ny error in the absence of a cautionary instruction was
harmless because there was considerable other evidence of
[Campbell’s] guilt. Before his death, [Reid] gave a police
statement in which he identified [Campbell] by name as one of
the three men who shot him on the night of September 12, 2007.
He also identified [Campbell’s] photograph as being that of one of
the men who shot him and explained the motive of the crime to
police. Gihad Topping, Reid’s friend, also witnessed the shooting
and identified [Campbell], by both name and picture, to police as
one of the perpetrators. Topping told police that [Campbell] was
“from 7th Street,” that they had had prior violent altercations, and
that he had known [Campbell] “for about three years.”
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This was a case in which [Campbell] was identified by
multiple eyewitnesses, including the victim, as one of the
shooters. The witnesses knew [Campbell] by name, and their
accounts were consistent across multiple details, such as the
make and color of Wilkerson’s burgundy Chevy Impala, [Reid]
having been told to “take his fucking hands out of his pockets”
before the shooting, and the fact that Wilkerson drove away after
this interaction, then returned in a different vehicle with his co-
conspirators to shoot at Reid. Any error concerning the lack of a
cautionary instruction was therefore harmless. See
Commonwealth v. Boyer, 856 A.2d at 155 (although it was
error to admit a co-defendant’s guilty plea without a cautionary
instruction, that error was harmless, where there was a proper
basis for admitting the plea and the other evidence of guilt was
overwhelming). Under the totality of the circumstances, it is
apparent that the lack of a cautionary instruction regarding the
jury’s consideration of the co-conspirators’ guilty pleas was not
prejudicial. Because [Campbell] could not have been prejudiced
by trial counsel’s inaction, this argument fails.
PCRA Court Opinion, 5/19/22, at 17-18 (citations omitted).
Our review of the record supports the PCRA court’s thorough discussion
of why Campbell’s first issue does not warrant post-conviction relief. The
defense theory at trial clearly was to use Wilkerson and Vicks’ testimony to
Campbell’s advantage. Indeed, as noted by the Commonwealth and not
disputed by Campbell, trial counsel informed the court that he had
subpoenaed these two men and intended to present them as defense
witnesses had the Commonwealth not called them first. See Commonwealth’s
Brief at 11 n.6 (citing N.T., 12/9/15, at 272). Further, while Campbell claims
that his name was not “redacted” from the factual basis given for the guilty
pleas, such redaction is only required to protect defendants from out-of-court
statements made by a non-testifying codefendant at a joint trial. See,
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generally, Commonwealth v. Brown, 925 A.2d 147 (Pa. 2007). Such is
not the case here, as both Wilkerson and Vicks had previously pled guilty and
were subject to cross-examination by trial counsel.
Moreover, contrary to Campbell’s claim, the guilty pleas were properly
admitted as substantive evidence of his participation in the conspiracy to shoot
Reid. See Commonwealth v. Pitner, 928 A.2d 1104, 1109 (Pa. Super.
2007) (holding that a co-defendant’s prior statements relevant to his own
guilty plea were admissible as substantive evidence because they were
inconsistent with co-defendant’s trial testimony and he was subject to cross-
examination).
Finally, our review of the record supports the PCRA court’s conclusion
that any error in failing to give a cautionary instruction was harmless, given
the overwhelming evidence of Campbell’s guilt. Thus, Campbell’s first issue
fails.
In his second issue, Campbell asserts that the PCRA court erred by
dismissing without a hearing his claim that trial counsel should have objected
and/or asked for a cautionary instruction or mistrial based upon the
Commonwealth’s discovery violation with regard to impeachment evidence
involving Muirhead, his alibi witness. According to Campbell, this late
disclosure essentially caused a “trial by ambush,” which prejudiced him.
The PCRA court found no merit to this claim. Once again, the court first
placed the claim in context:
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At trial, [Campbell] presented [Muirhead] as both an
eyewitness to the Mifflin Street shooting and an alibi witness to
the Moore Street shooting. Muirhead testified that she,
[Campbell], and a fiend of theirs were on the 400 block of Mifflin
Street when their car broke down and they were attacked by an
unknown shooter. Although her testimony placed [Campbell] as
present on the scene at that shooting, Muirhead said that he was
not armed and never fired any bullets of his own. She also
testified that [Campbell] could not have been present at the Moore
Street shooting, because he was with her at a friend’s house in
Sharon Hill, Pennsylvania, watching movies and having sex all
night. As part of her testimony, Muirhead testified that on
September 12, 2007, she was enrolled in the 10th grade at Furness
High School. After witnessing the shooting on Mifflin Street, she
had an altercation with a group of girls who attacked her.
According to Muirhead she “got kicked out of school [the following
day] for the incident. They said I was an endangerment to the
school because of the incident.” A week later, she said, she
transferred to Overbrook High School.
On rebuttal, the prosecution called a school official to testify
that Muirhead’s school record did not reflect any disciplinary
action, that she was never suspended or expelled, and that she
did not miss any required attendance days in the month of
September. According to school records, Muirhead did not
transfer to Overbrook High School until October 24, 2007.
PCRA Court Opinion, 5/19/22, at 9-10 (paragraph break added; citations
omitted).
The PCRA court then rejected Campbell’s claim that he was ambushed
at trial:
Despite his argument to the contrary, nothing in the
transcript suggests that trial counsel was ambushed by either the
school official’s testimony or the documents supporting that
testimony. [Campbell] has offered no citations to the record or
other evidence to support his contention that the evidence was
“withheld until after the trial began,” or that trial counsel was
surprised by the late disclosure. To the contrary, the record shows
that the prosecution had spoken with trial counsel about the
rebuttal witness and had provided the supporting documents in
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advance, and that trial counsel was able to cross-examine the
witness extensively about gaps in those records. Thus, not only
does the record fail to support [Campbell’s] argument, but it
shows that trial counsel was able to effectively cross-examine the
witness, and that any delay that may have existed in the
prosecution’s disclosure of that information (although not actually
established that there was any delay) did not prejudice the
defense.
PCRA Court Opinion, 5/19/22, at 10-11 (citations omitted).
Our review supports the PCRA court’s conclusion that Campbell’s claim
of late disclosure had no support in the record. On the contrary, Campbell
does not dispute the Commonwealth’s contention that it informed the trial
court that it had given trial counsel documents relevant to the rebuttal of
Muirhead’s trial testimony, and trial counsel “did not suggest that he had not
seen them before, let alone that he was unfamiliar with their substance.”
Commonwealth’s Brief at 19 (citing N.T., 12/14/15, at 75-79). Instead,
Campbell relies upon a question he asked counsel about a “pile of papers” that
appeared on the defense table to support his claim that the Commonwealth
had not given trial counsel the discovery until that very moment. See
Campbell’s Brief at 53. Campbell’s claim is not persuasive given the PCRA
court’s conclusion that trial counsel effectively cross-examined the witness.
Thus, Campbell’s second issue fails.
In his third issue, Campbell asserts that PCRA counsel was ineffective
for failing to challenge prior counsel’s failure to preserve for direct review, the
claim that trial counsel should have requested a curative instruction and/or
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mistrial after the Commonwealth introduced into evidence two prison phone
calls allegedly made by Wilkerson.
On direct appeal, Campbell claimed that the trial court abused its
discretion by admitting into evidence portions of two phone calls in which
Wilkerson and others discussed efforts to silence or pressure witnesses. In
the first recording, Wilkerson and his mother discussed his mother’s
confronting Reid and/or Topping at the courthouse and asking, “did you come
here to snitch?” Commonwealth’s Brief at 15 (citing N.T., 12/9/15, at 258).
In the second recording Wilkerson and an unidentified person discussed
Wilkerson’s desire to “bury the rat” and “get off” as a result. Id. (citing N.T.,
12/9/15, at 262).
Campbell argued on appeal that the second recording was not
authenticated because Wilkerson denied recognizing his voice, and that both
recordings were irrelevant and unduly prejudicial because they did not
mention Campbell. Although this Court rejected Campbell’s claim regarding
authentication, we concluded that the claim regarding the relevancy and
prejudicial nature of the recorded evidence was waived because Campbell
failed to “move for a mistrial or request a curative instruction or any other
relief based on the prejudicial nature of the recorded evidence[.]”
Commonwealth v. Campbell, 179 A.3d 600 (Pa. Super. 2017), non-
precedential decision at 25.
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Our standard of review regarding the admission of evidence is well
settled: “It is well settled that the admissibility of evidence is a matter
addressed to the sound discretion of the trial court and may be reversed only
upon a showing that the court abused that discretion.” Commonwealth v.
Wynn, 850 A.2d 730, 733 (Pa. Super. 2004) (citations omitted). As our
Supreme Court has summarized:
Appellate courts typically examine a trial court’s decision
concerning the admissibility of evidence for abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous. Typically,
all relevant evidence, i.e., evidence which tends to make the
existence or non-existence of a material fact more or less
probable, is admissible, subject to the prejudice/probative
value weighing which attends all decisions upon admissibility.
See Pa.R.E. 401; Pa.R.E. 402[.]
Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007).
The Commonwealth contends that both recordings were properly
admissible even though neither call mentioned Campbell. As to the first call,
the Commonwealth argues that attempts by Wilkerson’s mother and others to
pressure and/or intimidate Reid and Topping was admissible to explain why,
contrary to their pretrial statements, neither Reid nor Topping identified any
of the perpetrators of the shooting. Further, as to both calls, the
Commonwealth contends they demonstrated Wilkerson’s “bias against the
Commonwealth and its witnesses, and therefore that his trial testimony
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purporting to exculpate [Campbell] was less credible than his statements
during his guilty plea colloquy.” Commonwealth’s Brief at 17.
We agree that these phone calls were admissible. See, e.g.,
Commonwealth v. Thomas, 194 A.3d 159, 164 (Pa. Super. 2018)
(acknowledging courts have “permitted the Commonwealth to engage in a line
of questioning designed to reveal that a witness changed his testimony fear if
the consequences of testifying truthfully”); Commonwealth v. Collins, 702
A.2d 540, 544 (Pa. 1997) (holding the evidence of efforts to influence a
witness are admissible to help explain why the witness changed his or her
version of the pertinent facts); Pa.R.E. 607(a) (providing that the “credibility
of any witness may be attacked by any party, including the party calling the
witness”). Moreover, given the overwhelming evidence of guilt, see supra,
Campbell cannot establish that evidence of these phone calls prejudiced him.
Thus, Campbell’s third issue warrants no post-conviction relief.
By order entered October 4, 2022, this Court granted Campbell’s
application to correct brief and strike from the record the fourth issue in his
brief. In this issue he asserted that second PCRA counsel rendered ineffective
assistance for declining to pursue a claim of trial counsel’s ineffectiveness for
not impeaching Detective Tolliver with evidence allegedly showing that in
2007, the detective allegedly committed misconduct in Campbell’s unrelated
case in which he pled guilty to third-degree murder.
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J-S07026-23
On December 8, 2022, Campbell filed with this Court an application for
remand in which he recasts his claim regarding Detective Tolliver as a violation
of Brady v. Maryland, 373 U.S. 83 (1963), due to the Commonwealth’s
suppressing information about Detective Tolliver in the unrelated case.
According to Campbell, even though he pled guilty, evidence of Detective
Tolliver’s supposed dishonesty and bias toward him in that case would have
been important impeachment evidence in this case.
Campbell has failed to establish any basis for remand. It appears that
Campbell knew of the alleged misconduct as early as 2015 and, therefore
could have raised it in his first PCRA petition. More fundamentally, Campbell
provides no evidence to support his claim that the detective invented a non-
existence witness in his other case. Thus, we deny Campbell’s motion for
remand.
In sum, because the PCRA court correctly rejected Campbell’s layered
claims of ineffectiveness and a evidentiary hearing was not necessary, we
affirm the PCRA court’s order denying him post-conviction relief.
Motion for remand denied. Order affirmed.
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J-S07026-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2023
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