Com. v. Alexander, C.

J-S74011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES ALEXANDER,
Appellant No. 2849 EDA 2013
Appeal from the PCRA Order Entered September 11, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1000871-1998
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 21, 2015
Appellant, Charles Alexander, appeals from the order entered
September 11, 2013, denying his first post-conviction relief petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–
9546. Appellant raises multiple claims alleging the ineffective assistance of
trial and appellate counsel and, relatedly, that the PCRA court erred in
dismissing his PCRA petition without an evidentiary hearing. After careful
review, we affirm.
The PCRA Court summarized the facts underlying Appellant’s
conviction for first degree murder and related offenses as follows:
In July, 1997, a dispute over drug territory between Appellant's
codefendant, Kareem Morefield, and Decedent, Benjamin
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S74011-14
Singleton, escalated to gunfire that ultimately led to Appellant's
contract killing of … [D]ecedent on April 20, 1998 for the sum of
two thousand dollars ($2,000). Decedent and Morefield were
competing drug dealers with a history of animosity and violence.
Morefield and his companions, Darryl Booker and Greg Robinson,
were selling drugs from a house on the 2300 block of Beechwood
Street, Philadelphia, PA. Morefield believed that Decedent, who
sold drugs at a nearby intersection, had designs on taking over
drug sales in the area. On July 22, 1997, Morefield met with
Decedent on the corner near Decedent's mother's home on the
400 block of East Collum Street, Philadelphia, PA. A
conversation ensued concerning threats made to Decedent by
Morefield's associates, and concerning the rumors that the victim
intended to take over drug trafficking. There was no resolution
of the dispute and the two left the scene, Morefield entering the
nearby home of one of his associate's mother, and Decedent
walking around the next corner. Decedent's sister was observing
from her front door and she testified that Morefield and Booker,
carrying firearms[,] followed Decedent. She then heard
gunshots [and] observed Decedent run[ning] back to the house
screaming that he had been shot and that Morefield shot him.
Decedent was shot in the leg and abdomen and was taken to the
hospital[,] requiring extensive surgery and several months of
treatment. Decedent was later released from the hospital and
Morefield told Booker that he would finish the job he started;
further stating that he wanted Decedent dead.
On April 20, 1998, [at] approximately 8:00 PM, Morefield
and his associates were selling drugs from a house near 18 th and
Cumberland Streets when Decedent and Appellant came in,
ostensibly looking for a mutual friend. Shortly thereafter,
Lamont Hill, who lived nearby[,] testified that he was in his
bedroom and heard multiple gunshots from the street below.
When he looked out of his window he observed two men
running, enter into Appellant's gold Hyundai Excel, and the men
fled. One of the males was carrying a gun. Hill went outside
and found Decedent lying face down in the street in a pool of
blood. Decedent had been shot nine times with nine millimeter
bullets.
Robert Herring, Decedent's friend, testified that after the
shooting Morefield warned him to keep quiet about the shooting.
Morefield also confided to Darryl Booker that he paid the shooter
two thousand dollars ($2,000) to kill Decedent. In his
conversation with Booker, Morefield accurately described the
-2-
J-S74011-14
events of the shooting and the scene of the crime. Morefield
further remarked to Booker that he paid half of the shooter[’]s
bail in connection with this case.
PCRA Court Opinion (PCO), 2/4/14, 2-4 (internal citations and footnotes
omitted).
Appellant’s first trial, a non-jury proceeding before the Honorable
William J. Mazzola, began on May 13, 2003. Before the trial concluded,
Judge Mazzola became ill, resulting in a three-month postponement. When
Judge Mazzola returned on September 8, 2003, he declared a mistrial, sua
sponte, due to his health problems. A second trial began on January 26,
2004, before the Honorable Renee Cardwell Hughes, at which Appellant
elected to be tried by a jury. Appellant’s second trial was held jointly with
codefendant Morefield.1
On February 4, 2004, the jury convicted Appellant (and Morefield) of
first degree murder and conspiracy. Additionally, the jury convicted
Appellant of possessing an instrument of crime. On that same day, the trial
court sentenced Appellant to a mandatory term of life imprisonment for first
degree murder, and no further penalty as to the remaining counts.
Appellant filed a direct appeal, but this Court found all of his appellate
claims waived after he failed to raise them in his Pa.R.A.P. 1925(b)
statement. See Commonwealth v. Alexander, 897 A.2d 513 (Pa. Super.
____________________________________________
1
Hereinafter, references to Appellant’s “trial” refer specifically to his second
trial, and references to “the trial court” refer specifically to Judge Hughes,
unless otherwise noted.
-3-
J-S74011-14
2006) (unpublished memorandum). Appellant subsequently filed a
successful PCRA petition seeking reinstatement of his direct appellate rights
nunc pro tunc. In his second direct appeal, Appellant presented a single
question for our review. This Court rejected that claim on its merits,
affirmed Appellant’s judgment of sentence, and our Supreme Court
subsequently rejected his petition for allowance of appeal. See
Commonwealth v. Alexander, 981 A.2d 910 (Pa. Super. 2010)
(unpublished memorandum), appeal denied, 992 A.2d 885 (Pa. 2010).
On March 21, 2011, Appellant filed a timely PCRA petition.2 Counsel
was appointed, and Appellant then filed a counseled, amended PCRA petition
on October 17, 2012 (hereinafter, “the Petition”). The Commonwealth
subsequently filed a motion to dismiss the Petition without a hearing, and
Appellant filed a timely response. The PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss the Petition without a hearing on July 16,
2013. Following Appellant’s timely response on August 5, 2013, the PCRA
court entered an order dismissing the Petition on September 11, 2013. On
October 7, 2013, Appellant filed a timely notice of appeal from that order,
and filed a timely Pa.R.A.P. 1925(b) statement on November 6, 2013. The
PCRA court issued its Rule 1925(a) opinion on February 4, 2014.
Appellant now presents the following questions for our review:
____________________________________________
2
This was Appellant’s second PCRA petition, but his first following the
reinstatement of his direct appellate rights.
-4-
J-S74011-14
I. Were [both] trial counsel ineffective for failing to object to
the declaration of a mistrial at Petitioner's first trial and for
failing to object to the second trial as a violation of the
federal and state constitutional protections against double
jeopardy?
II. Did trial counsel render ineffective assistance by failing to
make the correct and proper objections to the
constitutionally insufficient redaction of Darryl Booker's
prior recorded testimony and of the statements by non-
testifying co[]defendant Morefield contained therein, and
to the highly prejudicial instructions by the Court and
argument by the prosecution related thereto?
III. Was trial counsel ineffective for failing to interview or call
as a witness Gregory Robinson, who would have testified
that the conversation between himself, Booker and
Petitioner's co[]defendant Morefield — as described in
Booker's prior recorded testimony — never took place?
IV. Was trial counsel ineffective for failing to make the proper
objections to the admission of evidence concerning an
assault upon the witness Robert Herring and the witness's
belief that Petitioner procured it, where the evidence was
insufficient to tie Petitioner to the occurrence, where the
witness's beliefs were irrelevant given that he in fact
testified favorably to the Commonwealth, and where the
Commonwealth blatantly flaunted the Trial Court's in
limine ruling setting limits upon said evidence?
V. Was trial counsel also ineffective for failing to request an
appropriate cautionary instruction in light of the Trial
Court's in limine ruling restricting the evidence concerning
the assault to its relevance for Herring's state of mind?
VI. Was trial counsel ineffective for failing to use readily
available impeachment evidence in his cross examination
of Robert Herring and Carlton Gerald?
VII. Was trial counsel ineffective for failing to make the correct
objections as bases for his motion for mistrial following the
prosecutor's inflammatory closing argument to the jury?
VIII. Did direct appeal counsel render[] ineffective assistance by
failing to raise the Trial Court's error in permitting the use
of Darryl Booker's prior recorded testimony, where the
-5-
J-S74011-14
Commonwealth failed to make a good faith effort to find
him?
IX. For purposes of evaluating prejudice, must a court
consider the cumulative effects of the various
constitutional errors demonstrated?
X. Did the Court below err[] by failing to afford Petitioner an
evidentiary hearing?
Appellant’s Brief, at 2-4.
Here, Appellant’s PCRA claims were denied without a hearing pursuant
to Pa.R.Crim.P. 907. Our standard of review for this matter is well-settled:
In reviewing the propriety of a PCRA court's order dismissing a
PCRA petition, we are limited to determining whether the PCRA
court's findings are supported by the record and whether the
order in question is free of legal error. Commonwealth v.
Ragan, 592 Pa. 217, 220, 923 A.2d 1169, 1170 (2007). The
PCRA court's findings will not be disturbed unless there is no
support for the findings in the certified record. Commonwealth
v. Spencer, 892 A.2d 840, 841 (Pa. Super. 2006) (citation
omitted). Moreover, “[t]here is no absolute right to an
evidentiary hearing on a PCRA petition, and if the PCRA court
can determine from the record that no genuine issues of material
fact exist, then a hearing is not necessary.” Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008), appeal denied,
956 A.2d 433 (Pa. 2008) (citing Commonwealth v. Barbosa,
819 A.2d 81 (Pa. Super. 2003)); Pa.R.Crim.P. 907(2). A
reviewing court must examine the issues raised in the PCRA
petition in light of the record in order to determine whether the
PCRA court erred in concluding that there were no genuine
issues of material fact and in denying relief without an
evidentiary hearing. Commonwealth v. Jordan, 772 A.2d
1011, 1014 (Pa. Super. 2001) (citation omitted).
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).
Appellant asserts multiple claims of the ineffective assistance of
counsel (IAC) that occurred during various stages of his trial and direct
appeal.
-6-
J-S74011-14
Our standard of review when faced with a claim of ineffective
assistance of counsel is well settled. First, we note that counsel
is presumed to be effective and the burden of demonstrating
ineffectiveness rests on [the] appellant. Commonwealth v.
Thomas, 783 A.2d 328, 332 (Pa. Super. 2001) (citation
omitted). In order to prevail on a claim of ineffective assistance
of counsel, a petitioner must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. Commonwealth v.
Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007). A petitioner
must show (1) that the underlying claim has merit; (2) counsel
had no reasonable strategic basis for his or her action or
inaction; and (3) but for the errors or omissions of counsel,
there is a reasonable probability that the outcome of the
proceedings would have been different. Id. (citation omitted).
The failure to prove any one of the three prongs results in the
failure of petitioner's claim.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).
I.
Appellant’s first claim concerns the mistrial declared by Judge Mazzola
during Appellant’s first trial. Appellant asserts that his trial counsel during
that first trial was ineffective for failing to object to Judge Mazzola’s
declaration of a mistrial. Additionally, he claims that his attorney during his
second trial was ineffective for failing to object to the second trial as a
violation of Appellant’s state and federal double jeopardy rights. Both of
these issues turn on the question of whether Judge Mazzola’s declaration of
a mistrial was a manifest necessity.
It is within the trial judge's discretion to declare a mistrial,
and, absent an abuse of that discretion, no reversal of its
exercise will result. Nonetheless, a judge may declare a mistrial
sua sponte only when manifestly necessary or where the ends of
public justice would otherwise be defeated. Where there is
-7-
J-S74011-14
“manifest necessity” for a trial judge to declare a mistrial sua
sponte, neither the Fifth Amendment to the United States
Constitution nor Article I, § 10 of the Pennsylvania Constitution
will bar retrial. However, any doubt about the manifest
necessity of declaring a mistrial must be resolved in the
defendant's favor.
Reviewing courts use no mechanical formula in
determining whether a trial court had a manifest need to declare
a mistrial. Rather, “...varying and often unique situations aris[e]
during the course of a criminal trial...[and] the broad discretion
reserved to the trial judge in such circumstances has been
consistently reiterated....” Illinois v. Somerville, 410 U.S.
458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). Far
more conversant with the factors relevant to the determination
than any reviewing court can possibly be, the trial judge, who is
the foremost authority in his or her courtroom, is usually best-
positioned to determine the necessity of recusal in any individual
case. This principle assumes great weight when the issue
involves how the presentation of evidence or the conduct of
parties affects a trial's fact-finder.
When judges doubt their own ability to adjudicate
impartially, they should recuse themselves. Such an inability to
be objective creates a manifest necessity for the declaration of a
mistrial, particularly when a judge must exert the broad
discretion that a bench trial demands.
Commonwealth v. Leister, 712 A.2d 332, 334-35 (Pa. Super. 1998).
Here, the PCRA court states that “Judge Mazzola indicated that he
considered all other less drastic alternatives to mistrial, but that his illness
and current medicine regimen, coupled with the passage of time that
affected his recall of the evidence and witness credibility, demanded that a
mistrial be declared.” PCO, at 5. Appellant avers that there was no
manifest necessity requiring Judge Mazzola to declare a mistrial because
neither Appellant nor his codefendant requested a mistrial, and Judge
Mazzola’s impartiality had not been called into question. Furthermore,
-8-
J-S74011-14
Appellant argues that because the trial was substantially complete, Judge
Mazzola should have waited to see if his memory was adequately refreshed
by the notes of testimony, which had yet to be produced at the time he
declared the mistrial. Appellant contends that his first trial counsel should
have objected to the Court’s sua sponte declaration of a mistrial on any or
all of these bases.
We conclude that there could be no arguable merit to the proposed
objections. Here, Judge Mazzola was presiding over a bench trial. As such,
he was sitting in the place of a jury as the factfinder, and his recollection of
the testimony and evidence presented before the delay in proceedings was
of paramount concern affecting the fairness of the trial, regardless of his
impartiality. Appellant’s arguments would be far more compelling if Judge
Mazzola had been presiding over a jury trial because it would have been the
jury’s recall of the evidence and testimony that would be at issue, not the
judge’s.
Furthermore, Appellant has not convinced us that the notes of
testimony in these circumstances could have adequately refreshed Judge
Mazzola’s memory so as to obviate the manifest necessity justifying the
mistrial. Judge Mazzola’s recollection difficulties were not solely caused by
the passage of time. He also stated that the nature of his illness, as well as
the pharmaceuticals he was taking to treat it, had impaired his memory.
Judge Mazzola was in the best position and, perhaps, the only position, to
-9-
J-S74011-14
adequately assess his ability to perform his duties in light of his illness and
medicinal regime.
As cited above, our review of the sua sponte declaration of a mistrial is
not mechanistic, and the trial court is imparted with “broad discretion” to
address the unique circumstances that may arise during the course of
criminal trials. Id. at 335 (quoting Somerville). Although we acknowledge
that “any doubt about the manifest necessity of declaring a mistrial must be
resolved in the defendant's favor,” Appellant has not cited any controlling
authority that would give us pause regarding whether there was a less
drastic remedy available to deal with Judge Mazzola’s predicament. Id.Consequently, we ascertain no abuse of discretion in Judge Mazzola’s
decision to declare a mistrial and, therefore, no arguable merit to any claim
that an objection should have been lodged by counsel. Accordingly, we
conclude that the PCRA court’s determination to dismiss this claim without a
hearing was legally correct and supported by the record, because Judge
Mazzola’s sua sponte declaration of a mistrial was a manifest necessity.
We also ascertain no prejudice resulting from subsequent defense
counsel’s failure to object to Appellant’s second trial on double jeopardy
grounds. See Commonwealth v. Diehl, 615 A.2d 690, 691 (Pa. 1992)
(“Since Justice Story's 1824 opinion in United States v. Perez, 22 U.S. (9
Wheat.) 579, 580, 6 L.Ed. 165 [(1824)], it has been well settled that the
question whether under the Double Jeopardy Clause there can be a new trial
after a mistrial has been declared without the defendant's request or consent
- 10 -
J-S74011-14
depends on where there is a manifest necessity for the mistrial, or the ends
of public justice would otherwise be defeated.”). Thus, we conclude that the
PCRA court’s dismissal of this claim is supported by the record and free of
legal error.
II.
Next, Appellant claims that his (second) trial attorney3 was ineffective
for failing to adequately object to both the admission, and the accompanying
cautionary instruction, of the prior recorded testimony of Darryl Booker
(“Booker’s Recorded Testimony”). More specifically, Appellant contends 1)
that Booker’s Recorded Testimony was completely inadmissible against
Appellant under Bruton v. United States, 391 U.S. 123 (1968); 2) the
redaction of references to Appellant’s name in Booker’s Recorded Testimony
as presented to the jury did not comply with the exception(s) to Bruton
provided by Richardson v. Marsh, 481 U.S. 200 (1987), and its progeny;
3) although trial counsel objected to the admission of Booker’s Recorded
Testimony, he was ineffective for not objecting to the inadequacy of the
redaction; and 4) trial counsel was also ineffective for not objecting to the
adequacy of the cautionary instruction issued by the trial court that
accompanied the admission of the redacted version of Booker’s Recorded
Testimony.
____________________________________________
3
This and all subsequent references to Appellant’s trial counsel refer
exclusively to Appellant’s attorney during his second trial.
- 11 -
J-S74011-14
Booker testified at Morefield’s preliminary hearing. However, Booker
was unavailable to testify at the time of Appellant’s joint trial with Morefield,
and Appellant never had the opportunity to cross-examine Booker regarding
that testimony. Booker’s Recorded Testimony concerned his account of a
conversation he had with Morefield after the victim was killed. Morefield told
Booker that he had hired Appellant to kill the victim in exchange for $2000.
Morefield also told Booker several details about the killing that were unlikely
to be known by anyone other than the perpetrators.
Our Supreme Court summarized the applicable jurisprudence relating
to the admissibility of a codefendant's confession that implicates a defendant
at their joint trial in Commonwealth v. Brown, 925 A.2d 147 (Pa. 2007):
Included in the scope of the right guaranteed by the Sixth
Amendment's Confrontation Clause is the right to cross-examine
witnesses. Richardson, 481 U.S. at 206…. Generally, at a joint
trial, a witness's testimony is not considered to be “ against” a
defendant if an instruction is given to the jury to consider that
evidence only against a co[]defendant. Id. The general
presumption in the law is that juries will abide by such
instructions. [Commonwealth v.] McCrae, 832 A.2d [1026,]
1037 [(Pa. 2003)]; [Commonwealth v.] Travers, 768 A.2d
[845,] 847 [(Pa. 2001)]. In Bruton, however, the U.S. Supreme
Court recognized that there are some instances where “the risk
that the jury will not, or cannot, follow instructions is so great,
and the consequences of failure so vital to the defendant, that
the practical and human limitations of the jury system cannot be
ignored.” Bruton, 391 U.S. at 135…. The Bruton Court held
that, if a nontestifying co[]defendant's confession directly and
powerfully implicates the defendant in the crime, then an
instruction to the jury to consider the evidence only against the
co[]defendant is insufficient, essentially as a matter of law, to
protect the defendant's confrontation rights. Id. at 135–37…;
Gray [v. Maryland], 523 U.S. [185,] 192 [(1998)] (citing
Richardson, 481 U.S. at 207…).
- 12 -
J-S74011-14
Bruton, however, is not the last word from the Court
concerning how to treat co[]defendant statements in joint trials.
In Richardson v. Marsh, the Supreme Court held that the
Confrontation Clause is not violated by the “admission of a non-
testifying co[]defendant's confession with a proper limiting
instruction when … the confession is redacted to eliminate not
only the defendant's name, but any reference to his or her
existence.” 481 U.S. at 211…. This Court had previously
approved of such a practice in the wake of Bruton. See
Commonwealth v. Johnson, … 378 A.2d 859, 860 ([Pa.]
1977). We have also held that substituting the neutral phrase
“the guy” … for the name of the defendant is an appropriate
manner of redaction under Bruton. Travers, 768 A.2d at 851.
Brown, 925 A.2d at 157.
As a threshold matter, we address the Commonwealth’s assertion that
Bruton is not implicated by the admission of Booker’s Recorded Testimony.
Clearly, Morefield’s statements to Booker were inculpatory with respect to
both himself and Appellant. However, the Commonwealth argues:
Any finding of Bruton error necessarily also requires an initial
determination that the Confrontation Clause applies, as
determined by Crawford v. Washington, 541 U.S. 36 (2004),
and subsequent decisions articulating the scope of the
Confrontation Clause. Under Crawford, confrontation concerns
arise only from testimonial hearsay, such as statements to police
during questioning or actual testimony. Crawford[,] 541 U.S.
at 51-52. Accord United States v. Berrios, 676 F.3d 118, 128
(3d Cir. 2012) ("[B]ecause Bruton is no more than a by-product
of the Confrontation Clause, the Court's holdings in Davis v.
Washington, 547 U.S. 813 (2006), and Crawford ... likewise
limit Bruton to testimonial statements.").
Commonwealth’s Brief, at 24. Although Berrios is not controlling authority,
we find it highly persuasive in this instance, for the following reasons.
Clearly, Booker’s Recorded Testimony, per se, does not implicate
Bruton, because Booker was not a codefendant in Appellant’s trial.
- 13 -
J-S74011-14
However, Appellant correctly notes that in Bruton, the testimony at issue
came from a postal worker who was not a defendant in the case, but who
had testified as to the contents of Bruton’s codefendant’s confession. Thus,
Appellant correctly argues that Booker’s status is irrelevant to our inquiry as
to the applicability of Bruton to the hearsay statement contained within
Booker’s Recorded Testimony.
Yet, Bruton itself is merely an application of the Confrontation
Clause, Bruton, 391 U.S. at 137 (“Here the introduction of [Bruton’s
codefendant’s] confession posed a substantial threat to [Bruton’s] right to
confront the witnesses against him, and this is a hazard we cannot ignore.”),
and Crawford effectively limited the application of the Confrontation Clause
claims to the admission of “testimonial” evidence. However, the Crawford
court left “for another day any effort to spell out a comprehensive definition
of ‘testimonial.’” Crawford, 541 U.S. at 68. After a series of cases
addressing the contours of the Confrontation Clause in the wake of
Crawford,4 the Supreme Court appeared to have arrived at a working
definition of “testimonial” in Michigan v. Bryant, 562 U.S. 344 (2011), but
that definition was tailored to statements that were the product of a non-
custodial police interrogation. However, just prior to Bryant, in Davis, a
____________________________________________
4
See Davis v. Washington, 547 U.S. 813 (2006); Hammon v. Indiana,
547 U.S. 813 (2006); and Whorton v. Bockting, 549 U.S. 406 (2007).
- 14 -
J-S74011-14
case also involving a police interrogation, the Supreme Court acknowledged
that statements other than those produced by a police interrogation may be
testimonial for Confrontation Clause purposes:
Our holding refers to interrogations because ... the statements in
the cases presently before us are the products of
interrogations—which in some circumstances tend to generate
testimonial responses. This is not to imply, however, that
statements made in the absence of any interrogation are
necessarily nontestimonial.
Davis, 547 U.S. at 822 n. 1.
Our Supreme Court was confronted with the applicability of the
Confrontation Clause in a case which did not involve a police or judicial
interrogation in Commonwealth v. Allshouse, 36 A.3d 163, 167 (Pa.
2012), cert. denied sub nom., Allshouse v. Pennsylvania, 133 S.Ct. 2336(2013) (“Allshouse II”).5 At issue in Allshouse II was whether a
statement given by an injured minor to a Children and Youth Services
(“CYS”) caseworker regarding Allshouse’s culpability, although admissible as
an exception to the hearsay rule pursuant to the Tender Years Hearsay Act,
42 Pa.C.S. § 5985.1, was nonetheless barred as violative of Allshouse’s
Confrontation Clause rights. Our Supreme Court ultimately held that the
statement was not testimonial. Applying the test espoused in Bryant, our
Supreme Court considered whether the primary purpose of the
____________________________________________
5
Commonwealth v. Allshouse, 985 A.2d 847 (Pa. 2009) (“Allshouse
I”), had been vacated and remanded to our Supreme Court in light of
Bryant.
- 15 -
J-S74011-14
‘interrogation’ was to “to establish past events for use during a subsequent
criminal prosecution.” Allshouse II, 36 A.3d at 180. Our Supreme Court
considered all of the circumstances surrounding that interview and concluded
that it was not. Therefore, the Confrontation Clause was held not to bar
admission of the minor victim’s statement at Allshouse’s trial.6
With these precedents in mind, we agree with the Commonwealth that
the Third Circuit’s decision in Berrios accurately assesses that Bruton
claims only arise where the Confrontation Cause is implicated by the
statement sought to be precluded by Bruton. See Berrios, supra; accord
United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009) (“Because it
is premised on the Confrontation Clause, the Bruton rule, like the
Confrontation Clause itself, does not apply to nontestimonial statements.”);
United States v. Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009) (holding
that Bruton does not apply to codefendant’s nontestimonial statements);
United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir. 2008) (holding that
a statement by a codefendant to his fellow inmate was not testimonial
because he “would have had no reason to believe it would be used in a
____________________________________________
6
Regarding another statement admitted under the tender years exception,
one made by the minor victim to a doctor, our Supreme Court noted that
consideration of the statement’s testimonial or nontestimonial nature under
Bryant was more difficult. However, the Court avoided addressing the
matter by concluding that the statement’s admission was harmless error
because its content was merely cumulative of the victim’s statement to the
CYS caseworker.
- 16 -
J-S74011-14
judicial proceeding[;]” thus, its admission did not violate either Crawford or
Bruton).
Confessions are usually testimonial statements within the meaning of
Crawford because they are typically statements given to law enforcement
or, albeit less frequently, before judicial officers. Arguably, a “confession”
under the broadest possible definition of that term could include
nontestimonial statements (such as “I confessed my guilt to my parents,” or
“I confessed my sin to the preacher”). However, we do not believe that
“confessions” of that nature were those contemplated in Bruton, wherein
the at-issue statement was made under an interrogation while Bruton was in
custody (even though the interrogator was not a law enforcement official).
As Crawford, Davis, and Bryant imply, the types of confessions that are
addressed by the Confrontation Clause are those that are made in
anticipation of, or with the expectation of, future criminal litigation. These
are qualities that are less likely to apply to confessions made outside the
context of a criminal investigation or the judicial process, such as
confessions made in confidence to a friend, family member, or during
counseling with a religious or mental health professional. Confessions,
within the meaning of the Confrontation Clause, must be understood to
mean admissions of criminal culpability made in circumstances where the
primary purpose of the admission, or the solicitation of that admission, is to
establish past events for use during a subsequent criminal prosecution.
- 17 -
J-S74011-14
There is no evidence in this case that Morefield’s statement to Booker
was a product of Booker’s ‘interrogation’ of Morefield. To the contrary, the
record tends to support the opposite conclusion: Morefield made the
statements to Booker under the impression that his admissions would be
held in confidence by Booker. Indeed, none of the attendant circumstances
present in this case suggest that Morefield intended his statements to
establish past events for use during a subsequent criminal prosecution, or
that Booker’s conversation with Morefield was undertaken by either party for
that purpose. Accordingly, we conclude that Bruton did not apply to
Morefield’s statements to Booker, because those statements were not
testimonial and, therefore, did not fall under the purview of the
Confrontation Clause. Although Booker’s Recorded Testimony itself fell
within the purview of the Confrontation Clause (because Booker was not
present to testify at trial and Appellant did not have an opportunity to cross-
examine him), it did not fall under the purview of Bruton because Booker
was not Appellant’s codefendant.
Consequently, we ascertain that the PCRA court’s dismissal of
Appellant’s Bruton-related IAC claim was supported by the record and free
of legal error. There could be no arguable merit to Appellant’s assertion that
trial counsel was ineffective for failing to adequately object under Bruton,
because the Bruton rule was inapplicable to the admission of Booker’s
Recorded Testimony. Accordingly, we do not reach the question of whether
Appellant’s trial counsel was ineffective for failing to adequately object to the
- 18 -
J-S74011-14
redactions of Booker’s Recorded Testimony, or to the trial court’s cautionary
instruction regarding the redacted testimony, as both of those subsidiary
claims are premised upon the applicability of Bruton.
III.
Next, Appellant contends that trial counsel failed to interview or call
Gregory Robinson to testify on Appellant’s behalf. Appellant maintains that
Robinson would have testified that the conversation between Booker and
Morefield, memorialized in Booker’s Recorded Testimony, never took place.
Appellant argues that counsel’s failure in this regard clearly prejudiced him,
because it was a foregone “opportunity to directly contradict the cold, prior
testimony of such a witness, about a series of essentially hearsay
admissions, with a live witness capable of directly denying that those
admission had even been made[.]” Appellant’s Brief, at 40 (emphasis in
original).
Appellant presents two distinct claims: first, a failure to investigate
Robinson as a potential witness; and second, the failure to call Robinson to
the stand. However, in his brief, Appellant only discusses and cites legal
authority pertaining to the second of these claims. Accordingly, we conclude
that Appellant has waived any claim that trial counsel failed to interview or
otherwise investigate Robinson as a potential witness and, thus, we confine
our consideration to counsel’s failure to call Robinson as a defense witness.
See Lackner v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006) (holding that
“arguments which are not appropriately developed are waived”);
- 19 -
J-S74011-14
Commonwealth v. Figueroa, 859 A.2d 793, 800 (holding that the
appellant waived a claim by failing “to cite to pertinent authority in
developing his argument”).
To assess whether trial counsel was ineffective for his failure to call
Robinson as a witness, we apply the following standards:
To establish ineffectiveness for failure to call a witness, Appellant
must establish that: (1) the witness existed; (2) the witness was
available; (3) counsel was informed of the existence of the
witness or counsel should otherwise have known him; (4) the
witness was prepared to cooperate and testify for Appellant at
trial; and (5) the absence of the testimony prejudiced Appellant
so as to deny him a fair trial. A defendant must establish
prejudice by demonstrating that he was denied a fair trial
because of the absence of the testimony of the proposed
witness.
Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003) (quoting
Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002)).
The PCRA Court found Appellant’s claim “waived and without merit.”
PCO, at 6. The Court explained:
At trial, the court conducted a colloquy with Appellant in which
he was asked if he desired to present any witnesses other than
the one witness who had already presented testimony on his
behalf. Appellant responded that he did not. Appellant further
stated that he did not desire counsel to do anything further in
this regard. Appellant cannot now claim that trial counsel
rendered ineffective assistance for failing to investigate and call
an additional witness, Gregory Robinson. Error was not
committed.
Id. at 6.
The court’s analysis is legally deficient and unsupported by any
authorities. Appellant’s ‘desire’ to present a witness to refute Booker’s
- 20 -
J-S74011-14
Recorded Testimony is not a dispositive factor in determining whether trial
counsel was ineffective for failing to call Robinson as a witness. Robinson
was present during the conversation between Booker and Morefield. He
was, therefore, a potential witness who could have undermined the
credibility of Booker’s Recorded Testimony. Appellant’s failure to recognize
the potential of Robinson’s testimony during the court’s colloquy is simply
irrelevant to the question of whether trial counsel was ineffective for failing
to call him. There is no evidence in the record of this case that Robinson’s
existence was unknown to trial counsel, or that responsibility for counsel’s
lack of knowledge regarding Robinson was due to Appellant’s failure to
disclose Robinson’s existence.
Nevertheless, we may affirm the PCRA court’s denial of Appellant’s
petition “on any legal ground, regardless of the basis upon which the [PCRA]
court relied.” Commonwealth v. Auchmuty, 799 A.2d 823, 826 n.2 (Pa.
Super. 2002). Here, we agree with the Commonwealth that Appellant’s trial
counsel cannot be ineffective for failing to refute Booker’s Recorded
Testimony because the jury was instructed not to consider that evidence
against Appellant.
“The presumption in our law is that the jury follows instructions.”
Commonwealth v. Travaglia, 661 A.2d 352, 361 (Pa. 1995) (citing
Commonwealth v. Stoltzfus, 337 A.2d 873, 879 (Pa. 1975)). Prior to the
introduction of Booker’s Recorded Testimony, the trial court issued a lengthy
cautionary instruction, which read, in part, as follows:
- 21 -
J-S74011-14
This evidence is to be admissible only against Kareem
Morefield. It is to be considered solely for the purpose of
evidence being offered in this proceeding of the Commonwealth
versus Kareem Morefield.
The prior recorded testimony is not admissible in the case
of the Commonwealth versus Charles Alexander, and is not
under any circumstances to be considered as evidence in the
case of the Commonwealth versus Charles Alexander.
N.T., 1/30/04, at 85.
Given our presumption that the jury followed the trial court’s
instructions, we are constrained to hold that Appellant could not have been
prejudiced by the absence of Robinson’s testimony. Appellant could only
have been prejudiced by the absence of Robinson’s testimony if Booker’s
Recorded Testimony had been admitted against him. Consequently, we
conclude that no prejudice resulted from trial counsel’s failure to call
Robinson as a witness and, therefore, that he was not denied a fair trial on
that basis.
IV.
Next, Appellant complains that trial counsel was ineffective for failing
to object, and/or adequately object, to the admission of evidence concerning
an assault of a witness, Robert Herring, who had testified against Appellant
and his codefendant. The trial court permitted Herring to testify that he
believed that the assault had been motivated by his upcoming testimony
against Appellant and Morefield. However, the trial court did not permit the
admission of hearsay evidence upon which Herring’s belief was purportedly
based. Appellant argues that the trial court’s decision to exclude that
- 22 -
J-S74011-14
hearsay evidence was undermined when the prosecutor allegedly elicited
from Herring the source of the hearsay statement as well as its substance.
Appellant also complains that trial counsel, who did object on hearsay
grounds, was ineffective for not also objecting on relevancy grounds.
Appellant directs our attention to the following passages from the
direct examination of Herring:
Q [A.D.A. Malone]. Okay. The people who assaulted you — and
you can't talk about what they said — but did they say anything
to you?
A [Herring]. Yes.
Q. Based on what they said to you before, during or after the
assault, why did you believe that you were assaulted?
A. For testifying in this case.
N.T., 1/28/04, at 165.
Q. Why did you write two letters to Charles Alexander?
A. Because I got word sent after I was assaulted that they
thought that I was going to really tell; beings [sic] though that
they assaulted me as well.
So, you know, the barber that cuts our hair is on the same
block that he was on, we was on two different blocks. The
barber will come over and cut our hair. So, the barber told me,
you know —
MR. SANTAGUIDA [Defense Counsel for Morefield]: Objection.
THE COURT: Sustained ….
BY MR. MALONE:
Q. Without talking about the exact words the barber used, when
you had a conversation with the barber, what was you[r]
intention?
A. He told me to write a letter.
- 23 -
J-S74011-14
Q. Listen to what I'm saying. Don't say what the barber actually
said to you —
A. Uh-huh.
Q. — but after you had that conversation, what was going
through your mind? What were you planning on doing?
A. Writing — getting a letter to Charles Alexander to let him
know that everything was going to be cool. And, that once I
come to Court that I wasn't going to testify against him.
Id. at 169-70.
Initially, we reject Appellant’s representation of the record in this case.
We do not read the above passage as demonstrating that the
Commonwealth intentionally elicited the excluded statements. During the
direct examination of Herring, but prior to the above testimony, there was
an objection lodged by Appellant’s trial counsel when the prosecutor began
to broach the subject of what occurred just prior to when Herring was
assaulted in prison. Id. at 138. A discussion ensued in the judge’s
chambers. Id. at 138-63. The statement that the prosecutor wished to
elicit from Herring was that, just prior to the assault, the three assailants
asked Herring, “Do you know Boo? You don’t know him? Oh, we heard you
do.” Id. at 140.7 The trial court determined that these statements were
inadmissible hearsay. There is nothing within the above-quoted portions of
Herring’s testimony that demonstrates that the prosecutor was attempting
to circumvent the court’s ruling. To the contrary, it appears that the
____________________________________________
7
“Boo” was a nickname or alias used by Morefield.
- 24 -
J-S74011-14
prosecutor was making every effort to steer Herring away from revealing the
excluded statement, as well as from any similar statement by the prison
barber. Thus, Appellant’s claim that trial counsel should have done more to
object to the prosecutor’s alleged circumventing of the trial court’s ruling is
without merit.
Appellant also argues that trial counsel was ineffective for only
objecting on hearsay grounds to this portion of Herring’s testimony. He
contends that counsel should have also objected on relevancy grounds.
Herring’s belief that Appellant was responsible for the assault was admitted
as probative of Herring’s state of mind when he wrote two letters to
Appellant. In those letters, Herring indicated to Appellant that he did not
intend to testify against him. Because those letters were favorable to
Appellant as impeachment evidence concerning Herring’s trial testimony, the
Commonwealth wanted to demonstrate that Herring had an alternative
purpose for writing them other than the truth of their contents. Under this
theory, the trial court admitted evidence of Herring’s belief that he had been
assaulted because of his planned testimony in this case. Appellant argues
that any reference to the assault should have been excluded as irrelevant,
and that trial counsel should have objected on that basis. He believes that
the only relevant evidence of Herring’s state of mind was whether the
Commonwealth had threatened Herring in order to convince him to ‘flip’ in
favor of the Commonwealth, as Herring’s prior statements and testimony
had been favorable to Appellant.
- 25 -
J-S74011-14
We disagree. The PCRA court found the evidence admitted by the trial
court to be both relevant and admissible. Appellant fails to cite to any
authority that would suggest that, when admitting state of mind evidence to
explain such a ‘flip,’ the only relevant evidence is that pertaining to how the
party who ultimately secured favorable testimony from a witness may have
influenced that witness. Indeed, such a proposition is unreasonable and
self-serving. Appellant’s trial counsel attacked the credibility of Herring,
particularly with respect to his motivations for writing the two letters to
Appellant. N.T., 1/27/04, at 108-09. Appellant can hardly complain that his
counsel should have objected to the admission of state of mind evidence on
relevancy grounds, where the issue of Herring’s motivations for writing the
letters to Appellant and testifying for the Commonwealth was brought into
play by the defense’s strategy.
In Commonwealth v. Carr, 259 A.2d 165, 167 (Pa. 1969), our
Supreme Court acknowledged that “[t]hreats by third persons against public
officers or witnesses are not relevant unless it is shown that the defendant is
linked in some way to the making of the threats.” However, that rule
concerns the use of such threats as substantive evidence of guilt; threats
may be admissible for another purpose, such as to explain the motivation for
a prior inconsistent statement. Id. Here, the defense brought into question
Herring’s prior inconsistent statement, rendering relevant the threats that
induced that statement. Thus, Appellant’s trial counsel could not have
objected on relevancy grounds, as there is no arguable merit to that claim.
- 26 -
J-S74011-14
Accordingly, we conclude that that the PCRA court’s order denying the
claim(s) pertaining to this aspect of Herring’s testimony was supported by
the record and free of legal error.
V.
Appellant’s fifth claim also concerns Herring’s testimony regarding his
belief that the assault had been prompted in anticipation of his upcoming
testimony against Appellant and Morefield. Appellant argues that trial
counsel was ineffective for failing to request a cautionary instruction
indicating that Herring’s testimony regarding the assault was limited in
purpose to establishing his state of mind, and that it should not be
considered by the jury as substantive evidence of Appellant’s consciousness
of guilt.
“Evidence of a defendant's prior bad acts is generally inadmissible, and
where such evidence is admitted, a defendant is entitled to a jury instruction
that the evidence is admissible only for a limited purpose.”
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002). However,
“[w]here evidence of a defendant's prior bad acts is merely a fleeting or
vague reference, … trial counsel might reasonably decline to object or
request a limiting instruction to avoid drawing attention to a reference that
might have gone relatively unnoticed by the jury.” Id. at 561-62.
Because the PCRA court did not hold an evidentiary hearing, we cannot
ascertain whether Appellant’s trial counsel had a reasonable basis for not
requesting such an instruction. The PCRA court concluded that there was no
- 27 -
J-S74011-14
merit to this claim, reasoning that while there was evidence of an assault, as
well as Herring’s belief that the assault was related to his involvement in this
case, there was no evidence admitted that Appellant had ordered or
participated in the assault.
We cannot agree with the PCRA court regarding the arguable merit of
this IAC claim. By permitting evidence of the assault, and Herring’s belief of
its cause, the trial court risked allowing the jury to infer that Herring had
been assaulted at the behest of Appellant or Morefield. Consequently, a
cautionary instruction should have been requested by trial counsel and
granted by the trial court. Nevertheless, we agree with the Commonwealth
that, despite trial counsel’s failure in this regard, his ineffectiveness was not
sufficiently prejudicial so as to warrant relief because there is no reasonable
probability that the outcome of Appellant’s trial would have been different
had trial counsel requested and been granted a limiting instruction.
First, as noted in our discussion of Appellant’s preceding claim, the
door to evidence concerning Herring’s state of mind in making prior
inconsistent statements was opened by the defense. Second, substantive
evidence of Appellant’s consciousness of guilt had already been properly
admitted without objection. Herring had already testified that Appellant had
threatened to harm him if he did not keep his mouth closed regarding the
murder. N.T., 1/28/04, at 106. Thus, even if the jury made the inference
that Appellant and/or Morefield were culpable for the assault, such
inferential evidence would have been cumulative of similar evidence that
- 28 -
J-S74011-14
was properly admitted. Third, the jury did not hear any direct evidence
concerning the assault on Herring that would indicate that Appellant or his
codefendant had ordered it. Given these circumstances, we conclude that it
would be extremely unlikely that the jury would have reached a different
result had they been given a cautionary instruction accompanying Herring’s
testimony regarding his assault. Accordingly, we conclude that Appellant is
not entitled to relief on this claim.
VI.
Next, Appellant claims trial counsel was ineffective for not utilizing
available impeachment material during the cross-examination of Herring and
another witness, Carlton Gerald. Specifically, Appellant complains that trial
counsel failed to use impeachment material used by Appellant’s previous
attorney during the first trial, and that the cross-examination of both
witnesses was markedly less effective as a result. Appellant argues that trial
counsel was ineffective for not impeaching Herring’s testimony with evidence
of his three attempted murder charges, and for not impeaching Gerald’s
testimony with his armed robbery and drug convictions.
Regarding Herring, the PCRA court found that the attempted murder
charges were no longer pending against him at Appellant’s second trial, as
they had been withdrawn on February 28, 2003. Thus, the court concluded
that “[e]vidence of those charges was therefore inadmissible and could not
be used to impeach Herring. See[] Commonwealth v. Chmiel, 889 A.2d
501 (Pa. 2005).” PCO, at 8. We agree.
- 29 -
J-S74011-14
In Chmiel, our Supreme Court reaffirmed that “the veracity of a
witness may not be impeached by prior arrests which have not led to
convictions.” Chmiel, 889 A.2d at 534. Appellant argues, however, that
this same evidence was permitted during his first trial because “the
Commonwealth was free to reinstitute the charges at any time.” Appellant’s
Brief at 47. This argument is unpersuasive, as it is not accompanied by
citation to any controlling authority suggesting that such evidence is
admissible. Moreover, it is not at all clear that the first trial court was
correct in permitting the admission of such evidence; indeed, it appears that
such impeachment evidence should not have been admitted, as the charges
in question were withdrawn before the first trial. It is illogical to suggest
that otherwise inadmissible evidence should be permitted at a second trial
simply because such evidence was erroneously admitted at the first.
Regarding Gerald, the PCRA court determined that Appellant was not
prejudiced by counsel’s failure to impeach. The court explains:
Gerald testified at the first trial and gave police a signed
statement wherein he stated that Morefield offered two thousand
dollars ($2,000) for … killing [the Decedent]. He also stated that
Booker, Robinson, and Morefield sold drugs together … and that
Appellant usually carried a 9 mm pistol and .45 caliber gun.
When Gerald testified at the second trial he recanted his prior
statements and testimony. He testified that he made up the
information or that it was a rumor he heard.
PCO, at 8.
Thus, the PCRA court concluded that Appellant could not demonstrate
prejudice where the testimony he contends should have been impeached by
- 30 -
J-S74011-14
trial counsel “was actually helpful to the defense….” Id. We agree.
Furthermore, Appellant fails to offer any argument addressing the specific
basis on which this claim was rejected by the PCRA court. Accordingly, we
conclude that the PCRA court’s dismissal of these impeachment-based IAC
claims was supported by the record and free of legal error.
VII.
In Appellant’s seventh claim, he asserts that trial counsel was
ineffective for failing to adequately object to comments made by the
prosecutor during the Commonwealth’s closing argument, and that if the
appropriate objections had been made, a mistrial would have been granted.
Appellant alleges that the prosecutor “blatantly attempted to divert the jury
from proper consideration of the evidence as to who in fact committed the
murder, and invited its decision based instead on raw emotion and the
nature of the killing.” Appellant’s Brief, at 50. In support of this claim,
Appellant directs our attention to numerous portions of the prosecutor’s
closing remarks. He also claims that cumulative prejudice of these remarks
undermined his right to a fair trial. We disagree.
The Commonwealth is entitled to comment during closing
arguments on matters that might otherwise be objectionable or
even outright misconduct, where such comments constitute fair
response to matters raised by the defense, or where they are
merely responsive to actual evidence admitted during a trial.
See Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243,
249 (2000) (plurality opinion) (“A remark by a prosecutor,
otherwise improper, may be appropriate if it is in fair response to
the argument and comment of defense counsel.”) (citing United
States v. Robinson, 485 U.S. 25, 31, 108 S.Ct. 864, 99
- 31 -
J-S74011-14
L.Ed.2d 23 (1988)); Commonwealth v. Marrero, 546 Pa. 596,
687 A.2d 1102, 1109 (1996). Furthermore, “prosecutorial
misconduct will not be found where comments were based on
the evidence or proper inferences therefrom or were only
oratorical flair.” Commonwealth v. Jones, 542 Pa. 464, 668
A.2d 491, 514 (1995).
Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012).
We have reviewed all of the remarks highlighted by Appellant, and we
conclude, like the PCRA court, that there was no prosecutorial misconduct
during the Commonwealth’s closing argument. For instance, regarding
Appellant’s assertion that the prosecutor’s comments concerning a “higher
power” were improper, we note that defense counsel arguably breached the
topic during his closing argument by contending that only a “higher judge”
knew the truth of what happened. N.T., 2/3/04, at 191-92. Nevertheless,
Appellant contends the prosecutor “perverted” defense counsel’s remarks.
Yet, read as a whole, there was nothing improper about the prosecutor’s
comments, regardless of whether they constituted fair response to the
defense’s closing argument. The prosecutor did not invoke a higher power,
but instead instructed the jury to ignore such concerns. The prosecutor
summarized his retort to the defense’s purported invocation of a higher
power by stating: “So don’t wait for God to help. This is about earth and
this planet and what we call justice on this planet while we are here.” N.T.,
2/3/04, at 210. There is nothing improper about these remarks. Indeed,
these remarks properly directed the jury away from considering religious
motivations in reaching their verdict.
- 32 -
J-S74011-14
Appellant also complains that the prosecutor “falsely suggest[ed] that
venire persons had been excused for cause out of fear of retaliation for
serving on the jury.” Appellant’s Brief at 52. We disagree. The passage in
question8 does nothing more than highlight a sad reality that there is often a
____________________________________________
8
This aspect of Appellant’s argument concerns the following portions of the
prosecutor’s closing:
Do you remember when we were in a bigger group, when
it was forty or sixty of you, when you first came in here? Judge
Hughes asked a question: Is there anything about the nature of
these charges that would make you unable to sit and fairly listen
to the evidence in this case? A lot of your colleagues, a lot of
your brothers and sisters, raised their cards up. Why did they
do that? Why wouldn't they want to be sitting right here in front
of the — in front of them and doing a job? Why not? Why did
people put their cards up? The same reason that people get cold
feet when they have to sit here, when they have to point at
them, when they have to talk on the record, and when they have
to look at all these people, the same reason.
So remember, Ladies and Gentlemen, you guys are
numbers. I mean, I'm talking to you and you are human beings
and you are the ones that are going to decide this case, but
ultimately, you are numbers. You are juror number one. You are
juror number two, three, four, up the list. The lawyers are
instructed to destroy your names. You don't have to give your
addresses. You only had to give neighborhoods where you live.
Do you remember that? Not Robert Herring, not Carlton Gerald.
....
N.T., 2/3/04, at 251-52.
Imagine you had a 16 year-old son, and your 16 year-old son
comes home and tells you that he just saw a murder, that he
knows the guy who did it, and he's a ruthless drug dealer. He
knows the guy who died. What would you do? What would you
do? Would you march him on down to the police station and
(Footnote Continued Next Page)
- 33 -
J-S74011-14
reluctance among the citizenry to get involved in the criminal process, even
for jurors who remain relatively anonymous when compared to witnesses.
This was a clear effort to contextualize the fears that prompted witnesses
like Herring and Gerald to vacillate between positions favoring and
disfavoring the Commonwealth’s theory of the case, witnesses whose
credibility was of significant importance. The prosecutor never stated that
potential jurors had actually been dismissed in this case due to a specific
fear of retaliation. We view these comments as permissible oratorical flair.
In any event, trial counsel did object to some of the comments made
by the prosecutor, and he requested a mistrial on that basis. Appellant
contends that more objections should have been made, with better
reasoning, and that if such objections had been made, a mistrial would have
been granted. We disagree. We have not identified any clear prosecutorial
error in the portions of the Commonwealth’s closing argument cited by
Appellant. All of the statements highlighted by Appellant were either
unobjectionable, oratorical flair, or fair response to arguments made by the
defense. Accordingly, the PCRA court’s dismissal of this claim was supported
by the record and free of legal error.
_______________________
(Footnote Continued)
say: All right, Johnny, tell the detectives what you know. Put
yourself in this homicide case now. Let's — let them put your
name down. Let them put your address down. Would you do it?
Maybe some of you would. I don't know.
Id. at 255-56.
- 34 -
J-S74011-14
VIII.
Appellant’s next claim concerns the performance of his direct appeal
counsel, who he claims was ineffective for failing to challenge on appeal the
admission of Booker’s Recorded Testimony over objections that the
Commonwealth failed to make a good faith effort to find him. That issue
had been preserved by trial counsel, but abandoned by (both) appellate
counsel.
Appellant alleges:
In this case, the Commonwealth [only] made cursory efforts to
locate Booker at the time of the bench trial before Judge
Mazzola, but then suspended all efforts until two days prior to
Petitioner’s second trial, when detectives again began to look for
Booker and his mother at a number of different addresses and
locations, during daytime hours only, omitting to check the
known address of Booker’s girlfriend.
Appellant’s Brief, at 55-56.
“Where the Commonwealth seeks to admit a missing witness's prior
recorded testimony, a ‘good faith’ effort to locate the witness must be
established.” Commonwealth v. Wayne, 720 A.2d 456, 467 (Pa. 1998)
(quoting Commonwealth v. Jackson, 344 A.2d 842 (Pa. 1975)). “What
constitutes a ‘good faith’ effort is a matter left to the discretion of the trial
court.” Id.Here, Police Officer Broderick Mason testified that he checked multiple
locations where Booker had previously been known to live and frequent, and
did so on multiple occasions. N.T., 1/29/04, at 12-20. Officer Mason knew
Booker since 1990. Id. at 13. He said he checked all the locations where
- 35 -
J-S74011-14
he knew Booker had resided or where he “hung out ….” Id. Booker’s
brother was contacted and instructed to encourage Booker to contact the
police or the district attorney. Id. at 18. Based on information regarding
the whereabouts of Booker’s mother, received from Booker’s brother, Officer
Mason then visited where the brother had indicated Booker’s mother was
staying. Id. However, he could not locate her there or any information
about her living at that location from the property manager. Id. at 18-19.
Separate searches had been conducted in anticipation of the first trial. Id.
at 21. However, Officer Mason did not begin looking for Booker again until a
few days before the second trial, a few months short of a year from the end
of the first trial. Id. at 21-22.
Police Officer Michael Rocks also testified that he made efforts to
locate Booker beginning a week before the second trial began. Id. at 32.
Officer Rocks looked for Booker at no less than seven different locations on
multiple occasions. Id. at 33-35. Officer Rocks inquired if the people he
encountered knew Booker, but was unsuccessful in those efforts. Id. at 34.
Officer Rocks spent several hours at some locations where Booker was
known to frequent but was unable to locate him. Id. at 36-37. These
efforts continued until the day before the second trial. Id. at 37.
Based on the testimony of Officers Mason and Rocks, we ascertain no
abuse of discretion in the trial court’s conclusion that the Commonwealth
undertook a good faith effort to secure Booker’s presence at Appellant’s
second trial. Thus, there is no arguable merit to the assertion of direct
- 36 -
J-S74011-14
appeal counsel’s ineffectiveness. Consequently, we agree with the PCRA
court’s determination that Appellant was not prejudiced by his direct appeal
counsel’s failure to challenge whether the Commonwealth made a good faith
effort to locate Booker, as that determination is supported by the record and
free of legal error.
IX.
In Appellant’s ninth claim, he contends that the cumulative prejudice
of prior counsels’ ineffectiveness dictate that a new trial is warranted. We
disagree. We have disposed of all but one of Appellant’s IAC claims by
either holding that there was no arguable merit to the underlying legal issue
or that there was no prejudice resulting from the (in)actions of counsel.
Only with respect to Appellant’s fifth claim did we ascertain that some
degree of prejudice resulted from counsel’s ineffective action; nevertheless,
therein we concluded that there was no reasonable probability that the
outcome of Appellant’s trial would have been different had counsel acted
effectively. Accordingly, there is no cumulative prejudice for this Court to
consider and, therefore, Appellant’s cumulative prejudice claim lacks merit.
See Commonwealth v. Sneed, 45 A.3d 1096, 1117 (Pa. 2012) (holding
that “where claims are rejected for lack of arguable merit, there is no basis
for an accumulation claim[,]” and, similarly, that there is no basis for an
accumulation claim where individual claims have been disposed of for an
absence of prejudice).
X.
- 37 -
J-S74011-14
In Appellant’s final issue, he contends that the PCRA court erred by
dismissing his claims without a hearing.
Under Pennsylvania Rule of Criminal Procedure 909, 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. 909(B)(2).
“[T]o 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.” Commonwealth v.
D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004).
Sneed, 45 A.3d at 1105-06.
Appellant has not alleged any genuine issues of material fact that, if
resolved in his favor, would entitle him to relief. Accordingly, we ascertain
no abuse of discretion in the PCRA court’s dismissal of Appellant’s petition
without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2015
- 38 -
J-S74011-14
- 39 -