Com. v. King, J.

J-S79016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEROME KING,
Appellant No. 3136 EDA 2013
Appeal from the PCRA Order of October 18, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0401961-2006
BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 24, 2015
Appellant, Jerome King, appeals from an order entered on October 18,
2013 in the Criminal Division of the Court of Common Pleas of Philadelphia
County that dismissed, without a hearing, his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the factual and procedural history in this
case as follows:
On September 13, 2003 at approximately 11:30 pm, Romaine
Wells (also identified as “Romaine” or “Ali”) and his cousin John
Wells (victim/decedent, also identified on the record as “John” or
“J-Balls”) agreed to go to Dooner’s [B]ar located at 2748 North
29th Street in the City and County of Philadelphia. John and
Romaine parked across the street from the bar and went inside.
After ordering a beer, John walked to the jukebox located in the
center of the bar.
A short time later, [Appellant] (also identified as “Lemon”) and
Ed [Edward Jackson] arrived at the bar on their bicycles.
[Appellant] talked briefly with Kevin Jackson [no relation to
*Retired Senior Judge assigned to the Superior Court.
J-S79016-14
Edward Jackson], who was sitting outside the bar, then both
[Appellant] and Ed dropped their bicycles on the sidewalk and
went inside.
John Wells was standing by the jukebox, as [Appellant] walked
by and bumped his shoulder. [Appellant] turned and grabbed
John’s arm pulling him close and whispered into his ear.
[Appellant] and Ed immediately left the bar with Romaine
following him. Once outside, [Appellant] told John Wells, “we
can talk about this right here.” They engaged in a verbal
argument for about five (5) minutes. During the course of the
argument, [Appellant] pulled a silver handgun from his pocket
and shot John five (5) to six (6) times. John collapsed to the
ground and Romaine ran into the bar. [Appellant] and Ed left
their bicycles and fled the scene.
An officer parked at the corner of 29th and Oakdale streets heard
gunfire from the direction of the bar. As the officer approached
the scene, patrons were running from Dooner’s [B]ar. When he
located John Wells, [Wells] was unresponsive. The officer
arranged for him to be immediately transported to a local
hospital. John Wells sustained seven (7) fatal gunshot wounds
to the neck, head, lungs, and pulmonary artery.
A few days following the shooting, [Appellant] told Kevin Jackson
that “[John Wells] said he was going to kill me, so I seen him
first.” [Appellant] also told Hassan Kinnard, a longtime friend of
[Appellant], that he “rocked that nig*** at Dooner’s.”
Romaine Wells and Kevin Jackson provided statement[s] to
homicide detectives concerning the shooting death of John Wells
and both identified [Appellant] as the [shooter] from a [police]
photo array.
On March 4, 2008, following a jury trial before the Honorable
Renee Cardwell Hughes, [Appellant] was convicted of murder
[in] the third[-]degree and possessing an instrument of crime.
Sentencing was deferred until May 22, 2008, on which date
Judge Hughes sentenced petitioner to the mandatory term of life
-2-
J-S79016-14
imprisonment.[1] [Appellant] did not file post-sentence motions.
On June 23, 2008, [Appellant] filed a timely notice of appeal.
On January 25, 2010, th[is Court] affirmed [Appellant’s]
judgments of sentence. On February 12, 2010, [Appellant] filed
a petition for allowance of appeal, which our Supreme Court
denied on July 7, 2010.
On May 2, 2011, [Appellant] filed a timely pro se petition
pursuant to the [PCRA]. Counsel was appointed and, after
investigation, filed an amended petition on May 25, 2012. On
August 8, 2012, the Commonwealth filed a motion to dismiss.
On March 7, 2013, [Appellant] filed a [s]upplemental
[m]emorandum in support of [a]mended [PCRA p]etition. On
June 14, 2013, [Appellant] again supplemented his pleadings
with additional legal argument. The Commonwealth responded
to that filing on June 18, 2013. On July 29, 2013, after
considering the pleadings of the parties and conducting an
independent review, th[e PCRA c]ourt sent [Appellant] notice
pursuant to Pa.R.Crim.P. 907 (907 Notice) of its intent to deny
and dismiss his PCRA petition without hearing. On August 23,
2013, th[e PCRA c]ourt granted post-conviction counsel’s
request for additional time to communicate with [Appellant]
about responding to the 907 Notice. After speaking with
[Appellant], counsel elected not to respond to the 907 Notice.
On October 18, 2013, th[e PCRA c]ourt dismissed [Appellant’s]
PCRA petition consistent with its 907 Notice. [Appellant filed a
notice of appeal on November 12, 2013 and was ordered to file a
concise statement pursuant to Pa.R.A.P. 1925(b) on November
13, 2013. Appellant filed his concise statement on December 4,
2013. The PCRA court issued its Pa.R.A.P. 1925(a) opinion on
May 1, 2014.]
PCRA Court Opinion, 5/1/14, at 1-3.
____________________________________________
1
Appellant received a mandatory life sentence for his third-degree murder
conviction because he had previously been convicted for the first-degree
murder of Nathaniel Giles in Philadelphia County. See 42 Pa.C.S.A.
§ 9715(a) (“any person convicted of murder of the third degree in this
Commonwealth who has previously been convicted at any time of murder or
voluntary manslaughter in this Commonwealth or of the same or
substantially equivalent crime in any other jurisdiction shall be sentenced to
life imprisonment”).
-3-
J-S79016-14
Appellant raises the following claim for our review:
Should [Appellant] be remanded to the PCRA [c]ourt for a full
[e]videntiary [h]earing where that [c]ourt denied such an
[e]videntiary [h]earing and all where [Appellant] pled and would
have been able to prove that he was entitled to PCRA relief as
the result of ineffective assistance of trial counsel where counsel
failed to object to the [t]rial [c]ourt clearing the room prior to
the testimony of Kinnard Hassan in violation of [Appellant’s]
constitutional rights to a public trial and where appellate counsel
was ineffective for failing to raise that issue on direct appeal and
where appellate counsel failed to properly raise and preserve the
issue surrounding the prior inconsistent statement from witness
Romaine Wells and was ineffective for failing to properly
preserve the issue of redaction of Kevin Jackson’s statement for
appellate review?
Appellant’s Brief at 3.
Appellant challenges an order that dismissed, without a hearing, his
petition under the PCRA alleging layered claims of ineffective assistance by
trial and appellate counsel. The standard and scope of review, as well as the
general principles of law under which we consider such claims, are
well-settled.
Under our standard of review for an appeal from the denial of
PCRA relief, we must determine whether the ruling of the PCRA
court is supported by the record and is free of legal error. The
PCRA court's credibility determinations are binding on [appellate
courts] when they are supported by the record. However, this
Court applies a de novo standard of review to the PCRA court's
legal conclusions.
To be eligible for PCRA relief, a petitioner must plead and prove
by a preponderance of the evidence that his or her conviction or
sentence resulted from one or more of the circumstances
enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances
include . . . ineffective assistance of counsel which “so
undermined the truth-determining process that no reliable
-4-
J-S79016-14
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). []
Under Pennsylvania Rule of Criminal Procedure 90[7], the PCRA
court has the 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 any further proceedings.” Pa.R.Crim.P. 90[7(1)].
To obtain 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 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.
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements[:]
(1) the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for his or her action or inaction; and (3)
the petitioner suffered prejudice because of counsel's
ineffectiveness. [A claim possesses arguable merit if counsel’s
action or inaction is inconsistent with a constitutional guarantee,
statute, rule of procedure, or established precedent.] With
regard to the second, reasonable basis prong, we do not
question whether there were other more logical courses of action
which counsel could have pursued; rather, we must examine
whether counsel's decisions had any reasonable basis. We will
conclude that counsel's chosen strategy lacked a reasonable
basis only if Appellant proves that an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued. To establish the third, prejudice prong,
the petitioner must show that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel's ineffectiveness[.]
* * *
To prevail on a claim of appellate counsel ineffectiveness for
failure to raise an allegation of trial counsel ineffectiveness, a
PCRA petitioner must present a “layered” claim, i.e., he or she
must present argument as to each of the three prongs of the
[test for ineffectiveness] for each layer of allegedly ineffective
representation. To establish the arguable merit prong of a claim
-5-
J-S79016-14
of appellate counsel ineffectiveness for failure to raise a claim of
trial counsel ineffectiveness, the petitioner must prove that trial
counsel was ineffective under the three-prong [ineffectiveness]
standard. If the petitioner cannot prove the underlying claim of
trial counsel ineffectiveness, then petitioner's derivative claim of
appellate counsel ineffectiveness of necessity must fail, and it is
not necessary for the court to address the other two prongs of
the [ineffectiveness] test as applied to appellate counsel.
Commonwealth v. Paddy, 15 A.3d 431, 441-444 (Pa. 2011) (internal
quotations and case citations omitted).
Appellant’s first issue alleges that prior counsel were ineffective in
failing to challenge the trial court’s closure of the courtroom to the public
prior to receiving the testimony of Hassan Kinnard. In its opinion, the PCRA
court conceded that the trial court violated Appellant’s right to a public trial
when it cleared the courtroom based solely on the word of the district
attorney and investigating detective, without input from Kinnard. See PCRA
Court Opinion, 5/1/14, at 8 n.11 (finding both arguable merit in Appellant’s
claim and no reasonable basis for trial counsel’s failure to request in camera
examination of Kinnard)2; Commonwealth v. Penn, 562 A.2d 833, 838
(Pa. Super. 1989) (noting that while the right to a public trial may bow to
____________________________________________
2
The Commonwealth argues at some length that Appellant’s public trial
claim lacks arguable merit, largely on the basis that information about the
threat of witness intimidation was credible and that the alleged threats took
place in the courthouse. In our view, the arguable merit of Appellant’s
public trial claim is a question that involves contested issues of fact that
would require a hearing before the PCRA court. Since Appellant’s petition
was dismissed without a hearing on grounds that he failed to plead and
prove prejudice as a matter of law, we focus on this aspect of the PCRA
court’s disposition.
-6-
J-S79016-14
interest in preventing witness intimidation, trial court abuses its discretion in
clearing courtroom without interviewing witness to verify nature and extent
of attempted intimidation that occurred outside the presence of the presiding
judge), appeal denied, 590 A.2d 756 (Pa. 1991). Thus, we shall confine our
analysis of this issue to the question of whether Appellant met the prejudice
prong of the test for ineffective assistance.
Appellant maintains that he met the prejudice prong by demonstrating
a reasonable probability that the outcome of the proceedings would have
been different but for counsel's ineffectiveness. He advances three
arguments in support of this contention. First, Appellant declares that, but
for counsel’s omission, the outcome of the proceeding would have been
different in that his trial would have proceeded without a deprivation of his
constitutional rights. Second, Appellant argues that if appellate counsel had
not waived the issue on direct appeal, then “[Appellant] would have been
awarded a new trial instead of having had his conviction for murder
affirmed[.]” Appellant’s Brief at 22. Lastly, Appellant asserts that we should
presume prejudice as if this case were pending on direct appeal. See id. at
20, citing Commonwealth v. Knight, 364 A.2d 902 (Pa. 1976) (holding on
direct appeal that “no showing of prejudice is required where a violation of
an accused’s right to a public trial is asserted”). We address these
assertions in turn.
-7-
J-S79016-14
We are unable to agree with Appellant’s first contention which claims
that prejudice has been established merely because something different
would have transpired during the course of trial. Every collateral challenge
involving claims of ineffective assistance alleges, essentially, that counsel
should have taken some course of action that he did not originally elect. If
this alone satisfied the third prong of the test for counsel’s ineffectiveness,
then prejudice would no longer be a meaningful factor that distinguishes
valid claims from those that lack merit. Hence, we reject this proposition.
We are likewise unable to agree with Appellant’s second argument in
support of finding prejudice. The record belies Appellant’s assertion that he
would have been awarded a new trial if appellate counsel had not waived the
public trial issue in the context of his direct appeal. Appellant’s own letter
brief submitted in support of his amended petition for PCRA relief makes
clear that appellate counsel raised the public trial issue on direct appeal
before this Court. See Appellant’s Letter Brief in Support of Amended PCRA
Petition, 5/21/12, at 5 (listing public trial issue as one of seven issues raised
by direct appeal counsel). Moreover, the panel memorandum issued by this
Court identifies the public trial issue as one of the claims raised by direct
appeal counsel. Commonwealth v. King, 991 A.2d 358 (Pa. Super. 2010)
(unpublished memorandum) at 4, appeal denied, 997 A.2d 1176 (Pa. 2010).
Indeed, the panel’s memorandum makes clear that trial counsel’s failure to
raise a specific objection precluded this Court from addressing Appellant’s
-8-
J-S79016-14
public trial claim on direct appeal. Commonwealth v. King, 991 A.2d 358
(Pa. Super. 2010) (unpublished memorandum) at 23. Thus, the record
establishes that appellate counsel raised Appellant’s constitutional challenge
on direct appeal, that appellate counsel was not ineffective in failing to raise
this issue, and, therefore, that Appellant suffered no prejudice resulting from
the performance of direct appeal counsel.
To succeed on his public trial claim, then, Appellant must demonstrate
how trial counsel’s performance prejudiced efforts of the defense. Appellant
claims on appeal that prejudice should be presumed and, therefore, he is not
required to prove how he was prejudiced by the closure of the courtroom.
Prior cases such as Knight held, on direct appeal, that where an
appellant was denied his right to a public trial, a new trial must be granted
and that no showing of prejudice is required.3 However, these cases neither
address nor hold that a petitioner on collateral review is relieved of the
burden to prove prejudice within the context of a claim asserting counsel’s
ineffectiveness arising from a failure to assert a public trial right.
Indeed, to apply our holdings in such cases to the PCRA context would
effectively deem counsel’s actions in such situations per se ineffective.
However, as the Supreme Court of Pennsylvania explained in
____________________________________________
3
Like Knight, the decision of this Court in the direct appeal of
Commonwealth v. Johnson, 455 A.2d 654, 658 (Pa. Super. 1982)
declared that a new trial must be granted, without a showing of prejudice, if
the defendant is denied his right to a public trial.
-9-
J-S79016-14
Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007), the
situations within the PCRA context in which prejudice is presumed are rare,
and are limited to when counsel’s actions wholly deny a defendant the right
to appellate review, such as the failure to timely file a requested appeal or
Rule 1925 statement. In Reaves, the High Court held that counsel’s failure
to move for reconsideration of sentence following a violation of probation
proceedings did not waive any and all appellate issues – only those claims
subject to issue preservation requirements which were not otherwise
properly preserved. Id. at 1128-1129. The Supreme Court in Reaves
expressly distinguished counsel’s actions that result in the total deprivation
of appellate rights, from counsel’s actions that allow an appeal, albeit on a
more limited scope. Id. at 1128. In the latter situations, the Supreme
Court explained, prejudice is not presumed. Id. (“It is thus apparent that
counsel's lapse did not deprive appellee of his right to appellate review; at
most, his attorney's conduct at the trial level ‘narrowed the ambit’ of the
appeal new counsel pursued. As such, it is clear that…appellee must satisfy
the…actual prejudice standard.”)
In this matter, as in Reaves, trial counsel’s failure to object to closure
of the courtroom at most limited the scope of Appellant’s challenges on
direct appeal, but it did not wholly deny appellate review. Consequently, the
fact that Appellant here has raised a public trial claim does not obviate the
need to demonstrate prejudice in the PCRA context. See Commonwealth
- 10 -
J-S79016-14
v. Williams, 9 A.3d 613, 619 (Pa. 2010) (holding that while the defendant’s
unqualified right to be present at every stage of the trial was violated
without an objection from trial counsel, counsel’s failure to object did not
result in a total failure to subject the case to the adversarial process, and
therefore was not an instance where a presumption of prejudice applied);
see also Commonwealth v. Johnson, 500 A.2d 173, 177-178 (Pa. Super.
1985) (petitioner alleging ineffective assistance arising from counsel’s failure
to seek public voir dire must demonstrate actual prejudice; new trial
unwarranted where petitioner did not “suggest a likelihood that a jury
selected in a different manner would have reached a different result”);
Commonwealth v. Brandt, 509 A.2d 872, (Pa. Super. 1986) (counsel’s
failure to object to voir dire conducted in chambers rather than in open court
did not constitute ineffective assistance of counsel where petitioner failed to
show, among other things, that jury selected in another manner would have
reached a different verdict), appeal denied, 521 A.2d 930 (Pa. 1987).
Because Appellant has not pled and proved that the outcome of his trial
would have been different if his trial counsel had lodged a proper objection,
Appellant’s claim of ineffective assistance of counsel must fail.4
____________________________________________
4
The PCRA court conducted a lengthy analysis of whether Appellant could
demonstrate the likelihood of a different outcome if an objection was made
and Kinnard had not testified. See PCRA Court Opinion, 5/1/14, at 8-10. In
its analysis, the PCRA court noted that “[w]hile Kinnard’s testimony
strengthened the Commonwealth’s case, it was not essential.” Id. at 8.
(Footnote Continued Next Page)
- 11 -
J-S79016-14
We are not persuaded by Appellant’s contention that the prejudice
presumed on direct appeal equates with the prejudice necessary for an
ineffective assistance of counsel claim. They are, in fact, quite different.
Indeed, in Williams, the Supreme Court explained that:
Although it purported to apply the [three-prong test for
ineffective assistance], the Superior Court conducted a harmless
error analysis, which was improper given the procedural posture
of this case. See Commonwealth v. Williams, 959 A.2d 1272,
1283 (Pa. Super. 2008). The harmless error standard typically
applies to claims of trial court error raised on direct appeal, and
the burden of proof is on the Commonwealth, which must
demonstrate beyond a reasonable doubt that the error did not
affect the verdict. See Commonwealth v. Howard, 645 A.2d
1300, 1307 (Pa. 1994). In contrast, an ineffectiveness claim
shifts the focus to counsel's stewardship, and under [the
conventional test for ineffective assistance], the defendant has
the burden of showing that counsel's performance “had an actual
adverse effect on the outcome of the proceedings.” Howard,
645 A.2d at 1307. Thus, it is more difficult to obtain relief on
collateral review because [ineffectiveness claims] place[] a
heavier burden on the defendant. See Commonwealth v.
Reaves, 923 A.2d 1119, 1130 (Pa. 2007) (discussing the
evidentiary standards applicable to preserved issues of trial court
error and derivative claims of ineffective assistance of counsel).
Williams, 9 A.3d at 619, n.7 (parallel citations omitted).
Simply because on direct appeal Appellant would not have been
required to establish prejudice resulting from the improper closure of his trial
_______________________
(Footnote Continued)
This assessment rested on the court’s observation that the Commonwealth
introduced the testimony of Romaine Wells, who witnessed the entire
interaction between Appellant and the victim, and Kevin Jackson, who
testified that Appellant admitted his role in killing Wells. We find no error in
the PCRA court’s conclusion.
- 12 -
J-S79016-14
proceedings, does not mean that he is entitled to the same presumption of
prejudice on collateral review. Because counsel’s failure to object to the
closing of the proceedings did not result in a total abandonment of counsel
or a failure of the adversarial proceedings, we do not believe that a
presumption of prejudice applies. Consequently, Appellant was obligated to
establish that his counsel’s failure to object resulted in prejudice to his
proceedings. Having failed to establish prejudice, we hold that the trial
court properly denied Appellant’s PCRA petition as a matter of law.
Appellant’s next claim asserts that prior counsel were ineffective in
failing to challenge the trial court’s refusal to admit a portion of a statement
by Kevin Jackson on grounds that the redacted utterance constituted
hearsay. In a pretrial ruling, the court admitted a statement by Jackson that
relayed a prior declaration by Appellant in which Appellant explained that he
killed John Wells because he believed that Wells intended to kill him.
However, the court excluded a similar statement by Jackson in which
Jackson declared, “I heard that J-Balls [(Wells)] was looking for Lemon
[(Appellant)]. J-Balls says Lemon killed his cousin, Collar-Green, his real
name is Mikal.” N.T., 2/26/08, at 8. Appellant argues that the preceding
statement was relevant and admissible since it shows that Wells was looking
to retaliate against Appellant on the night of the shooting. He argues further
that the statement was not hearsay since it was not offered for the truth of
the matter asserted, but instead to corroborate Appellant’s beliefs by
- 13 -
J-S79016-14
showing they were consistent with information that was circulating in the
community. In the alternative, Appellant claims that the statement was
admissible under the state of mind exception found at Pa.R.E. 803(3).
On direct appeal, a panel of this Court addressed this claim as an
alternate disposition to its finding that that the issue was waived. The panel
concluded that the trial court did not err since the statement attributed to
Appellant conveyed his subjective beliefs with greater force than the
excluded statement, which presented substantial problems of reliability in
that it originated from an unidentified, out-of-court declarant.
Commonwealth v. King, 991 A.2d 358 (Pa. Super. 2010) (unpublished
memorandum) at 19. The panel also noted that there was no indication that
Appellant was even aware of the rumor known to Jackson and that the
excluded statement would only be relevant if it were offered to prove the
truth of the matter asserted. Id. For these reasons, the panel concluded
that the trial court did not err in excluding the challenged statement as
inadmissible hearsay. Id. at 20. We, like the PCRA court, concur in these
assessments; hence, we deny relief.
Appellant’s final issue on appeal claims that prior counsel was
ineffective in failing to challenge the trial court’s determination that
Appellant was not entitled to a specific jury instruction concerning
substantive consideration of an alleged prior inconsistent statement by
Romaine Wells. As Appellant failed to include this issue in his Pa.R.A.P.
- 14 -
J-S79016-14
1925(b) concise statement, he has waived appellate consideration of this
claim. Commonwealth v. Mattison, 82 A.3d 386, 393 (Pa. 2013). Thus,
no relief is due on this claim.
Order affirmed.
Judge Allen joins this memorandum.
Judge Strassburger files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
- 15 -