Com. v. Whitmore, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH WHITMORE :
:
Appellant : No. 3148 EDA 2018
Appeal from the Order Dated September 21, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007422-2011
BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 20, 2019
Keith Whitmore appeals from the September 21, 2018 order entered in
the Philadelphia Court of Common Pleas, dismissing his petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546,
without a hearing. After careful review, we affirm.
Andrew Sliwinski and his brother, Scott, drove to Tackawanna Street in
Philadelphia looking to purchase marijuana. There, upon exiting the vehicle,
Scott approached Whitmore to consummate a drug deal. However, after an
exchange of words between Whitmore and Scott, gunfire erupted.
Eyewitnesses watched as Whitmore shot Scott in the head, killing him
instantly. As Scott lay lifeless on the ground, Whitmore turned his gun on
Andrew and fired two shots, hitting him in the chest and leg. Whitmore then
fled the scene before police arrived.
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Nearly two months later, police arrested Whitmore for a gun-related
offense on Hawthorne Street, almost three blocks from where the Sliwinski
shooting occurred. At the scene, Police Officer Dennis Johnson found a .45
caliber semi-automatic pistol in a bush next to where Whitmore was arrested.
Whitmore was charged with multiple crimes, including constructive possession
of the firearm found in the bush (“the unrelated gun case” or “the Lucas
case”). All of these charges were ultimately dimissed or nolle prossed.
Upon further investigation, police concluded the firearm from the bush
was similar to the one that killed Scott Sliwinski and seriously wounded his
brother, Andrew. Therefore, based on this evidence, Whitmore was held for
trial in the drug-related slaying.
Following the close of evidence, the jury found Whitmore guilty of first-
degree murder, attempted murder, aggravated assault, carrying a firearm
without a license, and possessing an instrument of crime.1 The trial court
sentenced Whitmore to an aggregate term of life imprisonment. He filed a
timely post-sentence motion, which the trial court denied. This Court affirmed
the judgment of sentence, and the Pennsylvania Supreme Court denied
further review.
Thereafter, Whitmore filed a pro se PCRA petition. Counsel was
appointed and filed an amended petition. The PCRA court then issued notice
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1 18 Pa. C.S.A. §§ 2502(a), 901(a), 2702(a), 6106(a)(1), and 907(a)
respectively.
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of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907 and dismissed
it, expressly denying relief without a hearing. This appeal followed.
On appeal, Whitmore presents six questions for our review:
1) [Whether] the PCRA Court err[ed], violating [Whitmore’s]
rights under the Sixth and Fourteenth Amendments of the U.S.
Constitution and Article 1, sec. 9 of the Pennsylvania Constitution,
when it found that trial counsel was not ineffective for failing to
investigate the Lucas case and failing to develop available
evidence from it in order to suppress testimony at [Whitmore’s]
trial about the gun? []
2) [Whether] the PCRA Court err[ed], violating [Whitmore’s]
rights under the Sixth and Fourteenth Amendments of the U.S.
Constitution and Article 1, sec. 9 of the Pennsylvania Constitution,
when it found that trial counsel was not ineffective for failing to
investigate and present available evidence to impeach the
credibility of the officer who allegedly found the gun in the bushes?
[]
3) [Whether] the PCRA Court err[ed], violating [Whitmore’s]
rights under the Sixth and Fourteenth Amendments of the U.S.
Constitution and Article 1, sec. 9 of the Pennsylvania Constitution,
when it found that trial counsel was not ineffective for failing to
renew his request for an instruction that it is not a fact that the
gun found in the bushes belonged to [Whitmore] and/or was the
murder weapon in this case? []
4) [Whether] the PCRA Court err[ed], violating [Whitmore’s]
rights under the Sixth and Fourteenth Amendments of the U.S.
Constitution and Article 1, sec. 9 of the Pennsylvania Constitution,
when it found that trial counsel was not ineffective for failing to
contemporaneously renew their objection to the Court’s admission
of the gun related evidence? [] Alternatively, [whether] the PCRA
Court err[ed] in finding that appellate counsel was not ineffective
for abandoning a claim that the trial court violated [Whitmore’s]
fair trial and due process rights by admitting the inconclusive gun
related evidence when the evidence was more prejudicial than
probative? []
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5) [Whether] the PCRA Court err[ed], violating [Whitmore’s]
rights under the Sixth and Fourteenth Amendments of the U.S.
Constitution and Article 1, sec. 9 of the Pennsylvania Constitution,
when it found that trial counsel was not ineffective for failing to
assert a claim on direct appeal that the court erred in overruling
trial counsel’s objection to the prosecution’s assertion in the
closing argument that the witnesses testified despite threats and
the specter of threats when there was no evidence that any
threats were made by [Whitmore] or anyone on his behalf to any
of the witnesses?
6) [Whether] the PCRA Court erred in failing to consider the
cumulative impact of the above cited ineffectiveness claims
violating [Whitmore’s] Sixth and Fourteenth Amendment rights?
Appellant’s Brief, at 3-4.
Before we address the merits of Whitmore’s appeal, we must
determine whether his petition was timely filed.
A PCRA petition is timely if it is filed within one year of the date
the petitioner’s judgment of sentence becomes final. See 42 Pa.C.S.A.
§ 9545(b)(1). “A judgment becomes final at the conclusion of direct
review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” Commonwealth v.
Callahan, 101 A.3d 118, 122 (Pa. Super. 2014) (citation omitted).
Here, Whitmore’s judgment of sentence became final on June 15,
2015, ninety days after the Supreme Court denied his petition for
allowance of appeal and the time to file a writ of certiorari with the
United States Supreme Court expired. See Pa. C.S.A. § 9545(b)(3); see
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also U.S. Sup.Ct.R. 13. Whitmore’s PCRA petition, filed on March 1,
2016, is therefore timely.
We now proceed to the merits of Whitmore’s petition. “Our
standard of review for issues arising from the denial of PCRA relief is
well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v.
Presley, 193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). In
doing so, we read the record in the light most favorable to the prevailing
party. See Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012). If this review reveals support for the PCRA court’s credibility
determinations and other factual findings, we may not disturb them.
See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014).
We, however, afford no deference to the PCRA court’s legal conclusions.
See id.
Whitmore raises six issues for our review, all of which allege
ineffective assistance of counsel. We presume counsel’s effectiveness,
and an appellant bears the burden of proving otherwise. See
Commonwealth v. Brown, 161 A.3d 960, 965 (Pa. Super. 2017). “In
order for Appellant to prevail on a claim of ineffective assistance of
counsel, he must show, by a preponderance of the evidence, ineffective
assistance of counsel which so undermined the truth-determining
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process that no reliable adjudication of guilt or innocence could have
taken place.” Presley, 193 A.3d at 442 (citation omitted).
To establish ineffectiveness of counsel, Whitmore must plead and
prove: his underlying legal claim has arguable merit; counsel’s actions
lacked any reasonable basis; and counsel’s actions prejudiced him. See
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to
satisfy any prong of the ineffectiveness test requires dismissal of the
claim. See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super.
2004). “Arguable merit exists when the factual statements are accurate
and could establish cause for relief. Whether the facts rise to the level
of arguable merit is a legal determination.” Commonwealth v.
Barnett, 121 A.3d 534, 540 (Pa. Super. 2015) (citations and internal
quotation marks omitted). Appellant must also establish that he suffered
prejudice, “that is, that counsel’s ineffectiveness was of such magnitude
that it could have reasonably had an adverse effect on the outcome of
the proceedings.” Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa.
2014) (citation and quotation marks omitted).
Whitmore’s first issue contends trial counsel was ineffective for
failing to investigate and utilize evidence from the unrelated gun case.
Specifically, he asserts Kevin Lucas’s testimony from the preliminary
hearing in that case undermined the Commonwealth’s constructive
possession claim, as Lucas recanted his statement that Whitmore
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discarded the gun. To that end, had counsel presented this evidence, he
maintains the jury would not have concluded that the alleged murder
weapon belonged to him. Therefore, he argues his conviction should be
vacated due to counsel’s ineffectiveness.
Based on our review of the transcript, we find no evidence of Lucas
recanting his statement that he saw Whitmore toss his gun in the
bushes. See N.T., Preliminary Hearing, 12/10/10, at 9-13. In fact,
nowhere in the transcript did Lucas proffer testimony on whether
Whitmore possessed the gun. See id. Although Lucas testified Whitmore
never shot at him, see id., at 12-13, that testimony is not relevant to
Whitmore’s claim that counsel was ineffective for failing to present
evidence that would have led the jury to reject the Commonwealth’s
assertion that Whitmore had possessed the gun. Therefore, contrary to
Whitmore’s assertions, counsel cannot be deemed ineffective for failing
to raise a meritless claim. See Commonwealth v. Fears, 86 A.3d 795,
809 (Pa. 2014). As such, there is no arguable merit to Whitmore’s claim.
Next, Whitmore contends trial counsel was ineffective for failing
to impeach Officer Johnson with evidence of potential bias. He asserts
he told counsel of Johnson’s intense dislike for him due to his romantic
relationship with Johnson’s niece, Salina Lawhorn. As such, Whitmore
concludes that counsel ineffectively failed to use Johnson’s fixed bias
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against him to either impeach Johnson’s credibility or preclude him from
testifying as a witness at trial.
A witness may be cross-examined on any matter tending to show
bias or partiality so a jury can properly evaluate the witness’ credibility.
See Commonwealth v. Rouse, 782 A.2d 1041, 1045 (Pa. Super.
2001). Moreover, exposing a witness’ motivation in testifying is an
important function of the constitutional right of cross-examination. See
Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa. Super. 2009). It is
particularly important for a defendant to demonstrate through cross-
examination a witness’s bias, when the defendant’s guilt or innocence is
dependent upon the credibility of the prosecution witness. See
Commonwealth v. Davis, 652 A.2d 885, 888 (Pa. Super. 1995).
It is undisputed that trial counsel did not attempt to demonstrate
Officer Johnson’s ostensible bias through cross-examination. See N.T.,
Trial, 10/16/12, at 112, 118. However, our review of the record does
not support a finding that counsel was even aware of the supposed
animosity Johnson harbored toward Whitmore. Further, besides his self-
serving affidavit, Whitmore fails to produce any evidence to corroborate
this allegation. Accordingly, Whitmore’s bald assertion lacks arguable
merit.
Whitmore contends next that trial counsel was ineffective for
failing to object to the trial court’s jury instruction. The instruction, as
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Whitmore asserts, implied that his possession of the alleged murder
weapon was a proven fact. In addition, Whitmore argues the court failed
to explain to the jury that its function as the finder of fact was to
determine whether he used the gun in the instant shooting. Because of
counsel’s ineffectiveness, Whitmore concludes he is entitled to
appropriate relief.
Given the nature of the circumstantial evidence presented at trial,
counsel requested a limiting instruction regarding the alleged murder
weapon. See N.T., Trial, 10/18/12, at 3. The trial court declined to issue
the proposed instruction and proceeded to instruct the jury on its
charge. See id., at 7. Thereafter, the record reveals that counsel did
not object to the jury charge. See id., at 198.
Whitmore is due no relief as his claim lacks arguable merit. First,
there is no evidence the trial court’s instruction implied that Whitmore’s
possession of the murder weapon was a proven fact. Rather, the record
shows the court qualified its instruction by stating there was
circumstantial evidence “tending to prove [Whitmore] was in possession
of a gun. . . .” N.T. Trial, 10/18/12, at 196. Second, the court explained
to the jury that its role was to “weigh the evidence, and based on that
evidence, and the logical inferences . . . find the facts.” Id., at 161. As
counsel cannot be deemed ineffective for failing to pursue a meritless
claim, this issue fails for lack of arguable merit.
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In his next issue, Whitmore argues trial counsel was ineffective
for failing to renew his objection to the gun’s admissibility as prior bad
acts evidence, and appellate counsel ineffectively abandoned this issue
on direct appeal. As such, he concludes that his conviction should be
overturned due to the ineffective assistance rendered by trial and
appellate counsels.
We therefore examine whether this claim has arguable merit.
“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Drumheller, 808 A.2d 893,
904 (Pa. 2002) (citation omitted). However, it is impermissible to
present evidence of a defendant’s prior bad acts or crimes in an attempt
to establish the defendant’s criminal character or tendencies. See
Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008).
Such evidence, however, may be admissible “where it is relevant for
some other legitimate purpose and not utilized solely to blacken the
defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,
1092 (Pa. Super. 2007) (citation omitted).
“Evidence of other crimes, wrongs or acts may be admitted for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or lack of
accident.” Pa.R.E. 404(b)(2). However, before admitting this evidence,
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a court must balance the probative value of the evidence for these
purposes against the potential for undue prejudice. See id. Further,
mere similarities between a defendant’s prior bad acts and the crimes
for which he is being tried will not qualify for a Rule 404(b)(2) exception.
See Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa. Super. 2016)
(en banc). Rather, the prior bad acts must have a “close factual nexus
sufficient to demonstrate the[ir] connective relevance” to the crime in
question. Ross, 57 A.3d at 104.
Here, the trial court admitted evidence of Whitmore’s constructive
possession of the gun as prior bad acts evidence to show identity. See
N.T., Trial, 10/18/12, at 7-8. Although counsel for Whitmore objected
to the admissibility of this evidence, the court determined that any
potential for prejudice was outweighed by its probative value. See id.,
at 8-10. Further, the court determined the evidence was admissible
based on the “close factual nexus” between the gun found in Whitmore’s
possession and the one used in the drug-related shooting. See id., at
7-8; see also Ross, 57 A.3d at 104. Therefore, even if counsel renewed
his objection, the court would not have excluded the evidence merely
because it was harmful to Whitmore’s case. See Commonwealth v.
Kouma, 53 A.3d 760, 770 (Pa. Super. 2012). Under these
circumstances, we cannot conclude the PCRA court erred in determining
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that Whitmore was unable to establish his underlying claim had arguable
merit.
Moreover, Whitmore’s claim that appellate counsel was ineffective
also fails for the same reason. While trial counsel preserved this issue
for appellate review, direct appeal counsel pursued sufficiency and
weight of the evidence claims instead. See Appellant’s Brief, at 32. As
stated above, any challenge to the gun’s admissibility would have been
fruitless on direct appeal. Consequently, Whitmore cannot establish that
direct appeal counsel was ineffective for failing to pursue this meritless
avenue on appeal.
Next, Whitmore argues that appellate counsel was ineffective for
failing to raise the Commonwealth’s misconduct on direct appeal. In
particular, Whitmore contends the Commonwealth’s assertion that a
witness testified against him despite fear of retaliation, was unfounded
and constituted prosecutorial misconduct. Therefore, he concludes he is
entitled to relief because appellate counsel ineffectively abandoned this
meritorious issue on direct appeal.
“Comments by a prosecutor constitute reversible error only where
their unavoidable effect is to prejudice the jury, forming in [the jurors’]
minds a fixed bias and hostility toward the defendant such that they
could not weigh the evidence objectively and render a fair verdict.”
Commonwealth v. Hutchinson, 25 A.3d 277, 307 (Pa. 2011) (citation
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omitted). Although a prosecutor may not offer personal opinions as to
the guilt of the defendant or the credibility of the witness, it is
permissible for the prosecutor to summarize the evidence and offer
reasonable deductions and inferences therefrom. See Commonwealth
v. Thomas, 54 A.3d 332, 338 (Pa. 2012). “In addition, the prosecutor
must be allowed to respond to defense counsel’s arguments, and any
challenged statement must be viewed not in isolation, but in the context
in which it was offered.” Id.
Here, Whitmore complains of the following statements from the
Commonwealth’s closing argument:
Prosecutor: [The witness] came in here and talked to you about
fear. He sat here and said: I am not afraid, but he is afraid for his
family. He wasn’t relocated. He is afraid for them. . . .
Counsel talked about how [the witness] . . . felt safe and secure
[with Homicide detectives]. Yes, that’s a lot different than sitting
in here, and looking at [Whitmore], and seeing his family, people
that maybe he recognizes from the neighborhood, people he
knows his family is going to encounter in the neighborhood.
N.T., Trial, 10/18/12, at 135-136. He argues these comments were not
based on the evidence of record and therefore appellate counsel should
have raised the Commonwealth’s misconduct on appeal.
Contrary to Whitmore’s contention, the Commonwealth’s
statements during closing argument were proper because they were
provoked by defense counsel’s summation. See Thomas, 54 A.3d at
338. The Commonwealth responded to credibility attacks against its
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eyewitness, who identified Whitmore as the shooter, by attributing the
inconsistencies in the witness’s statement to his fear of retaliation for
cooperating with police. See N.T., Trial, 10/18/12, at 135-136. This
argument was reasonably inferred from the witness’s mother’s
testimony that she feared for her son’s safety due to his involvement in
the case. See Thomas, 54 A.3d at 338; see also N.T., Trial 10/17/12,
at 14. Therefore, because the Commonwealth’s remarks during closing
argument were legally permissible, Whitmore’s claim is without arguable
merit.
In his final issue, Whitmore claims he is entitled to relief because
of the cumulative prejudicial effect of the errors asserted above.
As we have held, there is no number of failed ineffectiveness
claims that may collectively warrant relief if they fail to do so
individually. See Commonwealth v. Elliott, 80 A.3d 415, 450 (Pa.
2013). Therefore, since Whitmore’s individual ineffectiveness claims
failed, his argument that they warrant relief collectively also fails.
Accordingly, Whitmore’s final claim merits no relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/19
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