Com. v. Hamilton, S. ( 2023 )

J-A15032-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SETH LOUIS HAMILTON :
:
Appellant : No. 1141 WDA 2022
Appeal from the PCRA Order Entered September 8, 2022
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001881-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SETH LOUIS HAMILTON :
:
Appellant : No. 1142 WDA 2022
Appeal from the PCRA Order Entered September 8, 2022
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001277-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: AUGUST 28, 2023
Seth Louis Hamilton (Hamilton) appeals from the order of the Court of
Common Pleas of Mercer County (PCRA court) granting in part and denying in
part his petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42
Pa.C.S. § 9541-9546. He argues that the PCRA court erred in finding that
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A15032-23
counsel was not ineffective. We agree, as we conclude counsel was ineffective
for failing to object to the Commonwealth’s motion for joinder resulting in the
admission of irrelevant evidence. We, therefore, reverse the PCRA court’s
order denying relief and remand for a new trial.
I.
A.
On direct review, we adopted the following summary of the underlying
facts:
On the evening of October 25, 2017, three young men conspired
to rob [Hamilton]. The motive for the robbery was a debt
[Hamilton] owed to one of the co-conspirators, Zachary Cutshall
[(Cutshall)]. Under the guise of giving [Hamilton] a ride to
Greenville, Pennsylvania[,] to purchase marijuana, [the second
co-conspirator,] Jacob Barger [(Barger),] stopped the vehicle in a
remote location on Delaware [R]oad in Mercer County,
Pennsylvania. Barger and the third co-conspirator, Dominic
Heasley [(Heasley)], then exited the vehicle using the excuse
[that] they had to urinate.
Upon [Barger and Heasley’s return] to the vehicle, [Cutshall]
pulled out what was later determined to be a BB pistol and robbed
Hamilton. [Cutshall] and [Hamilton were seated] in the back seat
of the vehicle. Cutshall [was] on the passenger side and
[Hamilton was] on the driver[’s] side. Due to the fact [that] it
was night[time], and the fact [that] the BB pistol looked like a real
handgun, [Hamilton] complied with Cutshall’s demand to hand
over his personal property, which included his wallet, cell phone,
and a drawstring bag that contained a small amount of marijuana
and some drug paraphernalia. Cutshall then ordered [Hamilton]
to get out of the vehicle.
Unbeknownst to the three co-conspirators, [Hamilton] had a real
handgun in his possession at the time of the robbery.
Coincidentally, he had stolen this handgun out of an unlocked
pick-up truck the day before the robbery. When he got out of the
vehicle, [Hamilton] asked Barger whether he knew about the
-2-
J-A15032-23
conspiracy. Barger acknowledged he did. [Hamilton] then pulled
the handgun out of his waistband and, while holding the passenger
door open, fired the handgun at [Cutshall] approximately five
times. One round fatally struck Cutshall in the neck area.
[Hamilton] then proceeded to the rear of the vehicle and fired
more rounds through the back window. One of these rounds
penetrated the front passenger seat and struck [Heasley] in the
shoulder. [Hamilton] then fled into the woods. However, he later
met up Barger, Heasley, and the now[-]deceased Cutshall[] at the
parking lot for Vaughn Chiropractic[,] where Barger had moved
the vehicle. [Hamilton] remained there with them despite
knowing that Heasley had placed a 911 call. The Pennsylvania
State Police found the four of them at the site.
(Commonwealth v. Hamilton, 2020 WL 5423944, unpublished
memorandum, at *1-2 (Pa. Super., filed Sep. 10, 2020) (quoting Trial Court
Opinion, 12/30/19, at 1-2 (pagination provided)).
B.
Charges related to the shootings were docketed at CP-43-CR-0001881-
2017, while charges with respect to the stealing of the gun used in the
shootings were docketed at CP-43-CR-0001277-2018. On the Friday before
voir dire was scheduled to begin in the shooting case, which was scheduled to
begin the following Monday, the Commonwealth filed a motion to join each of
the underlying cases, arguing that joinder would not unfairly prejudice
Hamilton, would promote judicial economy and eliminate the need for
separate trials. (See Joinder Motion, 4/05/19, at ¶¶ 9, 11-12).
The Commonwealth maintained that several facts supported joinder.
Specifically, the events concerning the cases occurred over a five-day period
(October 22-26, 2017); both cases revolved around the same piece of
-3-
J-A15032-23
evidence (i.e., the gun that was alleged to have been stolen in the one case
was allegedly used in the other case); Hamilton met the victims of the
shooting case at the home of his co-conspirator from the gun theft case; and
multiple witnesses would be called to testify in both cases (specifically, the
co-conspirator from the gun case, the shooting victims and any witnesses that
would identify and address the operability of the stolen gun). (See Joinder
Motion, at ¶¶ 4, 6-8). The trial court granted the Commonwealth’s motion.
(See Order, 4/05/19 at 1).
Trial was held on April 9-12, 2019. Of the 16 trial witnesses, only two
testified about the theft offense. The issue before the jury was whether
Hamilton shot Cutshall with malice or whether he was justified in doing so in
self-defense. (See N.T. PCRA Hearing, 4/22/22, at 43, 47). During his
opening statement, the prosecutor referred to Hamilton as a thief and
repeatedly used the term “stole” or “stolen” 15 times before calling any
witnesses. (See id. at 13-24). The Commonwealth did not dispute that
Hamilton was the victim of a robbery plot by Cutshall and his associates. (See
N.T. Trial Vol. I, at 19).
At the conclusion of trial, the jury acquitted Hamilton of murder and
possession with intent to deliver.1 It convicted him of two counts each of
____________________________________________
1 See 18 Pa.C.S. § 2502(a), 901(a), 2502(c); 35 P.S. § 780-113(a)(30),
respectively.
-4-
J-A15032-23
aggravated assault with a deadly weapon, theft by receiving stolen property,
and criminal conspiracy; and one count each of aggravated assault, criminal
attempt, firearms not to be carried without a license, tampering with or
fabricating physical evidence, theft from a motor vehicle, criminal conspiracy,
theft by unlawful taking, possession of a small amount of marijuana, and
possession of drug paraphernalia.2 At a deferred sentencing hearing, the trial
court imposed an aggregate term of 15 to 30 years’ imprisonment, followed
by 37 months of probation.3 (See Sentencing Order, 9/26/19 at 2-5);
(Amended Sentencing Order, 10/01/19 at 1). On September 10, 2020, this
Court affirmed the judgments of sentence.4 (See Commonwealth v.
____________________________________________
2 18 Pa.C.S. §§ 2702(a)(4), 3925(a), 903(a)(1), 2702(a)(1), 901(a),
6106(a)(1), 4910(1), 3934(a), 3921(a); 35 P.S. § 780-113(a)(31), (32),
respectively.
3 The aggregate term included consecutive prison terms of 72 to 144 months
for aggravated assault, 54 to 108 months for criminal attempt to commit
aggravated assault, 13 to 26 months for aggravated assault with a deadly
weapon, 13 to 26 months for aggravated assault with a deadly weapon, 16 to
32 months for theft by receiving stolen property, and 12 to 24 months for
firearms not to be carried without a license. The term also included
consecutive probation terms of two years for tampering with or fabricating
physical evidence, one year for possession of drug paraphernalia, and one
month for possession of a small amount of marijuana. Sentencing Order,
9/26/19, 2-5; Amended Sentencing Order, 10/1/19, 1.
4 On direct appeal, Hamilton challenged: (1) the trial court’s reading of the
Commonwealth’s requested jury instruction related to the defense of
justification; (2-3) the trial court’s denial of his requested jury instructions
regarding the defense of justification; (4) the trial court’s denial of his
requested jury instruction regarding the voluntariness of his confession to
police; (5) the trial court’s reading of the Commonwealth’s requested jury
(Footnote Continued Next Page)
-5-
J-A15032-23
Hamilton, 240 A.3d 916 (Pa. Super. filed Sept. 10, 2020) (unpublished
memorandum)). On May 17, 2021, our Supreme Court denied further review.
(See Commonwealth v. Hamilton, 253 A.3d 674 (Pa. 2021)).
C.
With the assistance of present counsel, Hamilton filed a timely PCRA
petition in which he claimed that trial counsel provided ineffective assistance
by: (1) not contesting the Commonwealth’s joinder motion; (2) not objecting
to instances of alleged prosecutorial misconduct based on the trial
prosecutor’s opening and closing remarks; (3) not objecting to the jury verdict
sheet; (4) not objecting to the charging of multiple counts of theft by receiving
stolen property; and (5) not objecting to the charging of multiple counts of
conspiracy in the gun theft case. (See PCRA Petition, 3/11/22, at 31-54).
The PCRA court granted an evidentiary hearing, at which Hamilton’s trial
counsel testified.5
Trial counsel testified that he agreed to joinder because he believed that
the evidence for the theft case “was probably going to come in anyway one
way or the other” and the Commonwealth could satisfy the test for joinder.
(N.T. PCRA Hearing, 4/24/22, at 21, 38). Trial counsel also wanted to avoid
____________________________________________
instructions which described the elements of first-degree murder and
aggravated assault; and (6) the discretionary aspects of his sentence.
Hamilton, 2020 WL 5423944, at *2-5.
5 The trial court and PCRA court are the same jurist in this matter.
-6-
J-A15032-23
a delay of the homicide trial because the prosecutor told him that if he did not
agree to the joinder motion, it would try the “pretty strong” theft case first.
(Id. at 21); (see id. at 22). Trial counsel also believed that the evidence of
the theft would be admissible for res gestae purposes. (Id. at 21) (“. . . so I
felt that the Judge would probably let that in as part of the history of the
crime.”).
He also agreed with the prosecutor’s suggestion that joinder was
prudent because the jury being instructed on justification (self-defense) “may
have helped the theft case.” (Id. at 42); (see id. at 36, 40-42). However,
he also stated that the jury would not have heard his available defenses for
self-defense and justification in the theft case if his cases had been tried
separately because justification was not a defense for a theft offense. (See
id. at 35-36, 40-41).
Trial counsel characterized the prosecutor’s remarks in the
Commonwealth’s opening statement and closing argument as “borderline
objectionable.” (Id. at 16). He explained that it was not his practice to object
during opening statements and closing arguments unless the remarks in
question “clearly cross that line as objectionable” because “it would certainly
draw the jury’s attention” to them and “[t]he risk of a judge overruling the
objection can really backfire in a situation like that.” (Id. at 16, 34). Trial
counsel agreed that he refrained from making objections because he did not
want to cause an interruption and then have an objection overruled. (See id.
-7-
J-A15032-23
at 19). He also refrained from objections because the prosecutor “wouldn’t
be able to prove the things he was saying and [he] would call him on it later[.]”
(Id.); (see also id. at 47-48) (“I would rather have him overtry his case and
not be able to prove it than make an objection that is overruled.”).
On cross-examination, trial counsel agreed, with respect to the remarks
about Hamilton being a “thief,” a “drug dealer,” a “liar” and a “murderer” that
the charges included offenses involving theft, drug dealing and murder, and
that there was evidence that Hamilton had told untruthful things to the police.
(Id. at 32-33). With respect to a remark about Hamilton committing an
“execution style” shooting, trial counsel agreed that there was significant
testimony about bullet trajectories and the evidence suggested that the
shooting of Cutshall occurred at a downward angle. (Id. at 33).
Regarding the verdict sheet claim, trial counsel asserted that he believed
that the verdict sheet was created by the trial court, but he was not certain of
that. (See id. at 8). He testified that he did not recall that he had any
reasonable or strategic basis for not objecting to the verdict sheet. (See id.
at 10). On cross-examination, trial counsel agreed that he did not recall
“having an issue with” the verdict sheet at the time of trial, that the jurors
were instructed on the law for every single charge, and the court’s instructions
included both the mens rea and actus reus elements for each of the charges.
(Id. at 31).
-8-
J-A15032-23
After reviewing post-hearing briefs from the parties, the PCRA court
denied the ineffectiveness claims concerning the lack of objections to the
joinder motion, the prosecutor’s remarks and the verdict sheet. (See PCRA
Court Opinion, 9/08/22 at 2-7). The PCRA court granted relief on the
remaining claims, reversing the additional theft by receiving stolen property
and criminal conspiracy convictions as duplicative.6 (See id. at 7-9); (Order
9/08/22 at 1).
Hamilton timely filed notices of appeal for each of his underlying cases
and a court-ordered concise statement of errors complained of on appeal.
He raises three issues for our review challenging the PCRA court’s
finding that trial counsel was not ineffective when he: (1) agreed to the
joinder of his homicide and theft cases; (2) failed to object to the
Commonwealth’s “persistent and ill-measured rhetoric” throughout his trial;
and (3) failed to object to the suggestive verdict slip. (See Hamilton’s Brief,
at 4).7
____________________________________________
6 No sentencing proceedings were necessary because the reversed convictions
were originally deemed to be merged for sentencing purposes.
7 In reviewing the denial of PCRA relief, our standard of review is limited to
whether the record supports the PCRA court’s factual determinations and
whether its decision is free of legal error. See Commonwealth v. Lopez,
249 A.3d 993, 998 (Pa. 2021). We apply a de novo standard of review to the
PCRA court’s legal conclusions. See Commonwealth v. Fears, 86 A.3d 795,
804 (Pa. 2014). “The PCRA court’s findings will not be disturbed unless there
is no support for the findings in the certified record.” Commonwealth v.
Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (citation omitted).
-9-
J-A15032-23
II.
A.
We are guided by the following legal principles in reviewing an
ineffective assistance of counsel claim. In considering an ineffective
assistance of counsel claim, we observe first that counsel is presumed
effective and that a petitioner bears the burden to prove otherwise. See
Fears, 86 A.3d at 804. To establish an ineffectiveness claim, a defendant
must prove:
(1) The underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
[appellant] suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Id. (citation omitted). “Failure to prove any prong of this test will defeat an
ineffectiveness claim. When an appellant fails to meaningfully discuss each of
the three ineffectiveness prongs, he is not entitled to relief, and we are
constrained to find such claims waived for lack of development.” Id. (citations
and internal quotation marks omitted).
With these legal principles in mind, we turn to Hamilton’s allegations.
B.
Hamilton first challenges the PCRA court’s denial of his claim alleging
that his trial counsel provided ineffective assistance by agreeing to the
Commonwealth’s motion for joinder. He maintains that his theft of the
revolver was wholly immaterial for the jury’s consideration of whether he shot
- 10 -
J-A15032-23
Cutshall with criminal intent or concealed the firearm illegally and, therefore,
was inadmissible prior bad act evidence. He further asserts that counsel’s
reasons for failing to object were unreasonable and that he was prejudiced
because it “enabled the Commonwealth to vilify [him] in the eyes of the jury
as a thieving criminal and detract from his status as the robbery victim that it
recognized he was.” (Hamilton’s Brief, at 51).8
We consider first the underlying merit of this claim.
1.
Hamilton argues that “the evidence in the theft case wasn’t relevant,
nor admissible, to the elements and defenses at issue in the homicide case”
and that “theft of the revolver in the lead up to the homicide was not ‘part of
the natural development of the facts’ of the homicide, rather it was mere
‘coincidence.’” (Hamilton’s Brief, at 22); (see also Trial Ct. Op., 1/03/20, at
1).
____________________________________________
8 Procedurally, Hamilton argues that the Commonwealth’s motion was
untimely where it was filed and granted “on the eve of trial” in violation of
Rule 582(B) and that “[t]his was a ground, in itself, to oppose joinder.”
(Hamilton’s Brief, at 20, 21). However, this is waived where he does not
further develop this procedural issue under the three ineffectiveness prongs
or provide any legal authority to support his argument. See Fears, 86 A.3d
at 804. Moreover, as noted by the Commonwealth, Rule 582(B) provides that
where the Commonwealth has not provided the defendant notice that separate
indictments will be tried together at or before arraignment, a “[joinder] motion
must ordinarily be included in the omnibus pretrial motion,” which means
this timing is not a strict requirement. Pa.R.Crim.P. 582(B)(2) (emphasis
added).
- 11 -
J-A15032-23
The Commonwealth asserts that it used evidence of the theft “to
establish that [Hamilton] stole the same gun used in the homicide[;]
therefore, … one charge is relevant to the other as it showed a progression of
events[,] who possessed the revolver, how it came into [Hamilton’s]
possession, and that [it] was the same one stolen around the time of the
homicide.” (Commonwealth’s Brief, at 21).
Pennsylvania Rule of Criminal Procedure 582 provides, in pertinent part,
that “[o]ffenses charged in separate indictments or information may be tried
together if: (a) the evidence of each of the offenses would be admissible in a
separate trial for the other and is capable of separation by the jury so there is
no danger of confusion[.]” Pa.R.Crim.P. 582(A)(1)(a).9 This Court utilizes the
following three-part test for evaluating whether joinder is appropriate in
matters involving different acts or transactions:
(1) whether the evidence of each of the offenses would be
admissible in a separate trial for the other; (2) whether such
evidence is capable of separation by the jury so as to avoid danger
of confusion; and, if the answers to these inquiries are in the
affirmative, (3) whether the defendant will be unduly prejudiced
by the consolidation of offenses.
____________________________________________
9 Although Rule 582(A)(1)(b) provides that offenses charged in separate
indictments may be tried together if they are part of the same transaction or
occurrence, the Commonwealth only sought joinder under subsection (a).
(See Commonwealth’s Brief, at 19 (“the Commonwealth proceeded under
Pa.R.Crim.P. 582(A)(1)(a)”).
- 12 -
J-A15032-23
Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010)
(citations omitted).
[w]hether or not separate indictments should be consolidated for
trial is within the sole discretion of the trial court[.] … Evidence
of distinct crimes is inadmissible solely to demonstrate a
defendant’s criminal tendencies. Such evidence is admissible,
however, to show a common plan, scheme or design embracing
commission of multiple crimes, or to establish the identity of the
perpetrator, so long as proof of one crime tends to prove the
others. This will be true when there are shared similarities in the
details of each crime.
Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa. Super. 2006)
(citations omitted).
“Evidence of another crime is admissible where the conduct at issue is
so closely related that proof of one criminal act tends to prove the other. Such
evidence is particularly relevant to prove identity.” Commonwealth v.
Natividad, 773 A.2d 167, 174 (Pa. 2001), cert. denied, 535 U.S. 1099(2002), abrogated on other grounds, Commonwealth v. Freeman, 827 A.2d
385 (Pa. 2003).
We find Natividad persuasive. In Natividad, the appellant was tried
on consolidated indictments. The first indictment charged him for stealing
victim one’s dark colored Lincoln at gunpoint, utilizing a large silver gun,
possibly a .357 Magnum. In the trunk of the Lincoln was a lumberjack style
jacket. In the second indictment, the appellant was charged with shooting a
second victim days later. The identity of the shooter of this second victim was
at issue. “The person who shot [victim two] committed the crime with a large
- 13 -
J-A15032-23
chrome revolver, possibly a .357 Magnum. He was seen leaving the shooting
wearing a lumberjack style jacket driving a dark Lincoln.” Natividad, 773
A.2d at 174. Thus, this Court found the indictments were properly
consolidated.
Importantly, here, there was no issue at trial about the identity of the
shooter, but instead, about whether Hamilton acted in self-defense. The fact
that days before he “coincidentally” had stolen the gun he utilized for the
shooting was irrelevant to whether he either acted with criminal intent in
shooting Cutshall or illegally concealed the firearm. (Trial Ct. Op., at 1)
(“Coincidentally, [Hamilton] had stolen this handgun out of an unlocked pick-
up truck the day before the robbery”). Thus, evidence that Hamilton had
stolen the handgun he possessed was irrelevant and solely used to improperly
demonstrate his criminal tendencies where there was no issue about the
identity of the shooter, and there is no allegation that he stole the gun with
the intent of shooting Cutshall. See Andrulewicz, 911 A.2d 162 at 168.
Hence, the joinder issue has underlying merit.
2.
Hamilton argues that he was prejudiced by the joinder of the theft and
homicide cases because it “enabled the Commonwealth to vilify [him] in the
eyes of the jury as a thieving criminal and detract from his status as the
robbery victim that it recognized he was.” (Hamilton’s Brief, at 51); (see also
- 14 -
J-A15032-23
N.T. Trial I, at 19) (“The victim in that case was Seth Hamilton the
defendant.”).
As we have explained:
The traditional justification for permissible joinder of offenses or
consolidation of indictments appears to be the judicial economy
which results from a single trial. The argument against joinder or
consolidation is that where a defendant is tried at one trial for
several offenses, several kinds of prejudice may occur: (1) [t]he
defendant may be confounded in presenting defenses, as where
his defense to one charge is inconsistent with his defenses to the
others; (2) the jury may use the evidence of one of the offenses
to infer a criminal disposition and on the basis of that inference,
convict the defendant of the other offenses; and (3) the jury may
cumulate the evidence of the various offenses to find guilt when,
if the evidence of each offense had been considered separately, it
would not so find.
Commonwealth v. Richard, 150 A.3d 504, 509 (Pa. Super. 2016) (citation
omitted). Although the “liberal rule for the joinder of offenses reflects a
concern for economy of judicial resources[,] [i]t, however, fails to recognize
the possibility that the jury may misuse the evidence no matter however,
separable and distinct.” Commonwealth v. Morris, 425 A.2d 715, 719 (Pa.
1981).
The “simple and distinct” test ... may well be an appropriate
standard for measuring the prejudice resulting from the jury’s
confusing and cumulating the evidence. It does not address itself,
however, to the graver mischief possible where the jury, while
limiting its consideration of the evidence to the crime to which it
relates, properly finds the defendant guilty of one crime but
considers the finding probative of his guilt of another.
Id. (citation omitted).
- 15 -
J-A15032-23
Further, “the conservation of judicial resources and the efficient
administration of justice, while estimable goals, does not justify the exposure
of an accused to such a higher probability of prejudice.” Id. Importantly:
the saving of judicial time can never be given preference over the
integrity of the factfinding process. When it is concluded that the
evidence of the one crime would not be admissible in the separate
trial for the other, we are in effect saying that the evidence is
irrelevant and prejudicial in the second trial. To allow irrelevant
and prejudicial evidence to influence a verdict in the name of
judicial economy is abhorrent to our sense of justice. Additionally,
defendants in joint trials are treated differently from those who
receive separate trials as a result of the lack of uniformity in the
admission in the joint trial of evidence which would have been
inadmissible in one of the single trials had there been no joinder.
Id. at 720.
As explained above, the fact that Hamilton coincidentally stole the
firearm was irrelevant in the homicide trial and opened the door for the
prosecutor to repeatedly characterize Hamilton as a thief, allowing the jury to
consider this as probative in his homicide trial. While judicial economy is an
understandable consideration when confronted with a joinder motion, allowing
the admission of irrelevant evidence to potentially influence the verdict
certainly creates a “reasonable probability” of prejudice. Fears, 86 A.3d at
804. Therefore, the second prong of the ineffectiveness test is satisfied.
3.
Hamilton maintains that the reasons proffered by his trial counsel for
failing to contest the Commonwealth’s joinder motion lacked a reasonable
strategic basis. We agree.
- 16 -
J-A15032-23
It is undisputed that trial counsel did not contest the Commonwealth’s
motion. (See N.T. PCRA Hearing, at 21); (trial counsel testifying that he
“agreed to have the cases consolidated.”). At the PCRA hearing, trial counsel
testified that he elected not to oppose joinder because he thought evidence of
the theft “was probably going to come in” at the homicide trial and that the
Commonwealth would meet its burden for joinder. (Id. at 21, 38). Further,
trial counsel did not want to delay the homicide trial where the Commonwealth
had suggested that if the cases were not joined, it would try the theft case
first. (See id. at 21-22). Finally, counsel thought that joinder “may have
helped the theft case” because the jury would be instructed on the defense of
justification.” (Id. at 36, 40-42). We do not find these explanations
reasonable.
First, as stated above, the evidence of theft was irrelevant to the
homicide case because the theft charge had no common elements with the
homicide related charges. Trial counsel’s reason then for not opposing joinder
because the evidence would have come in anyway was also unreasonable
because evidence of those charges would not have been admissible, as the
Commonwealth suggests, under the “res gestae” exception because it
undisputed that the theft of the gun did not go to “proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” See Natividad; Pa.R.E. 404(b)(2). Such
evidence would have also been inadmissible to demonstrate a defendant’s
- 17 -
J-A15032-23
criminal tendencies. See Andrulewicz;. Pa.R.E. 404(b)(1). Trial counsel’s
reason then for not opposing joinder because the evidence would have come
in anyway was unreasonable because that evidence was inadmissible.
Second, as to his claim that he did not object to joinder because if he
did, the trial would have been delayed because that theft charge somehow
would take precedent over the homicide related charges, assuming that there
would have been a delay in the homicide-related charges, we do not see that
as a justifiable reason for acceding to joinder when trying them together was
prejudicial. Moreover, if there was some valid reason that we cannot discern
for not delaying the homicide-related charges, trial counsel’s position assumes
that the trial court was going to grant the Commonwealth’s joinder motion,
filed on the Friday before jury selection was scheduled for the following
Monday on the homicide-related charges, when the theft charge was irrelevant
to those charges. In any event, even if there was a delay caused by the
Commonwealth somehow being allowed to proceed with the theft case, it
would have been brief10 and, in any event, considering the “higher probability
of prejudice” suffered by Hamilton due to the joinder, counsel’s decision to
acquiesce to it was unreasonable. Morris, 425 A.2d at 719.
____________________________________________
10 A review of the trial transcript in this matter reflects that the testimony
about the theft was 39 pages and included two witnesses. (See N.T. Trial I,
at 38-49, 90-118).
- 18 -
J-A15032-23
Finally, counsel’s position that joinder helped the theft case because the
jury was instructed on justification is nonsensical where, as acknowledged by
trial counsel, it was irrelevant to the theft case. (See N.T. PCRA Hearing, at
35-36, 40-41) (trial counsel agreeing that justification only applied to the
homicide charge since it is not a defense for a theft offense). Therefore, the
lack of a reasonable-basis prong of the ineffective assistance of counsel test
has been met.
Accordingly, we reverse the order of the PCRA court and remand for a
new trial on the basis that counsel rendered ineffective assistance when he
failed to object to the Commonwealth’s motion for joinder. Given this
disposition, we decline to address the remainder of Hamilton’s claims.
Order reversed. Matter remanded for a new trial. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2023
- 19 -