Commonwealth v. Perez

J-S55018-14
2014 Pa. Super. 247
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GUILLMO (GUILLERMO) PEREZ, :
:
Appellant : No. 3187 EDA 2013
Appeal from the PCRA Order Entered November 8, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at Nos. CP-51-CR-0802241-2001
and CP-51-CR-1001271-2001.
BEFORE: BOWES, SHOGAN and OTT, JJ.
OPINION BY SHOGAN, J.: Filed: October 29, 2014
Appellant, Guillmo (Guillermo) Perez, appeals from the order denying
his petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
The facts and procedural history of the underlying criminal matter
were summarized by another panel of this Court, as follows:
Mr. Levaughn Nesbitt testified he had been in an
abandoned station wagon in a lot on Firth and Ninth Streets in
Philadelphia with Appellant and the victim on June 1, 2001, just
before 11:00 p.m. N.T., 4/15/03, at 103-04. The victim sat at
the driver’s seat, Appellant sat in the front passenger seat and
Mr. Nesbitt sat in the back seat on the driver’s side. Id. at 105.
Mr. Nesbitt was smoking marijuana in the vehicle and shared
some with the others, who had been smoking a “wet” [a
marijuana cigar soaked in embalming fluid] when he got in the
car. Id. at 106-107. Mr. Nesbitt witnessed Appellant pull a
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black gun “out of nowhere,” hold it in his hand and state he was
“going to use it,” after which the victim asked him to put the gun
away, and Appellant complied. Id. at 107-108, 121. Mr. Nesbitt
asked the victim to accompany him to the latter’s grandmother’s
home to watch the remaining portion of a 76ers basketball
game. The victim stated he would go there after he finished his
“wet.” Id. at 108.
Ms. Shakira Morse, the victim’s sister, testified she was
visiting her grandmother’s home on June 1, 2001, when
Appellant came to the door and asked to speak to the victim.
Id. at 125-126. Appellant asked the victim for something, and
the victim told Appellant to get it from “Roskoe.” Id. at 126.
Appellant left and returned in about five minutes. Id. at 126.
The men spoke again after which Appellant left the home, and
the victim followed about five minutes later. Id. at 126-127.
After approximately ten minutes had passed, Mr. Nesbitt came
to watch the basketball game, and about fifteen minutes later,
Ms. Morse heard gunshots. Id. at 127.
Mr. Ismael Roman, the block captain, testified he lived at
821 East Firth Street, and on the evening of June 1, 2001, he
was home with his family when he heard one gunshot followed
shortly thereafter by two more. Id. at 68-69. When Mr. Roman
looked out his window, he saw Appellant trying to pull the gun’s
slide forward to fire it while crossing back and forth in the middle
of the street in front of Mr. Roman’s car. Id. at 72. He
observed Appellant’s second shot hit the pavement and the third
hit Mr. Roman’s automobile. Appellant then walked toward a
vacant, littered lot located behind the houses in the 2500 Block
of North Ninth Street. Id. at 68-76.
Ms. Regina Hunter testified on the date of the incident she
lived in a home at 2509 North Ninth Street. While she was
watching the 76ers basketball game, Appellant broke through
the locked back door of her home and tore apart her kitchen. He
was holding something, but Ms. Hunter could not positively
identify the object. Id. at 89-92. He was speaking like he was
“crazy,” though he complied with Ms. Hunter’s order to leave
through the front door. Id. at 92, 98.
Detective Timothy Bass testified that on the evening of
June 1, 2001 he was sent to the 800 Block of West Firth Street,
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where he recovered two, fired cartridge casings and a hand gun
among refuse in a vacant lot. Id. at 37-39. He also recovered
another cartridge casing from an abandoned, brown Chevrolet
station wagon. Id. at 35. The passenger front window had
been shattered and both the driver’s door and front passenger
doors were ajar. Id. at 46-48.
Officer Demetrius Heggs testified he was in uniform and
responded to a call at Ninth and Firth Streets on June 1, 2001.
Id. at 131-132. Officer Heggs proceeded southbound on Ninth
Street and came to the corner of Ninth and West Cumberland
Streets where Mr. Roman provided him with a brief description
of a male he saw firing a gun. Id. at 132-133. He observed a
commotion at Appellant’s grandmother’s home; she explained he
had burst in and gone upstairs. Id. at 133-134. Officer Heggs
noticed Appellant walking down the stairs with a “large wound on
his head.” Id. at 135-136. Appellant was speaking unintelligibly
and appeared to be under the influence of drugs. Id. at 136-
137, 142. Appellant walked out of the front door and traveled
on foot eastbound on Cumberland Street from Ninth Street
toward Eighth Street. Id. at 137. Officer Heggs called for
backup as he followed Appellant in his patrol car. Id. Officer
Heggs found himself at the scene of the homicide where he
discovered a black male slumped over the steering wheel leaning
towards the passenger side. Id. at 139. He also noticed a
vehicle parked across the street from the station wagon with the
windows shot out. Id. at 142.
Officer Edwin Correa testified he backed up [O]fficer Heggs
and first saw Appellant on the 2500 Block of Eighth Street after
Mr. Roman directed his attention to Appellant. Id. at 150.
Officer Correa identified himself as a police officer at which time
it appeared to him that Appellant was going to flee. Officer
Correa and his partner quickly walked over to Appellant, frisked
him for weapons and placed him in their vehicle. Id. at 151-52.
Appellant repeatedly exclaimed “Oh, God, please forgive me for
what I did.” Id. at 152.
Dr. Ian Hood testified the victim was pronounced dead at
11:50 p.m. N.T., 4/16/03, at 50. Dr. Hood performed an
autopsy the next day at which time he observed two gunshot
wounds on the victim’s body–one entrance wound in his chest
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and one exit wound in his back. These wounds caused the
victim’s death. Id. at 49-60.
On April 17, 2003, Appellant was found guilty of [third
degree murder, carrying a firearm without a license, and
carrying a firearm on a public street in Philadelphia] and was
sentenced on June 17, 2003. On June 24, 2003, Appellant filed
a Post-Sentence Motion which the trial court denied following a
hearing on September 9, 2003. On April 28, 2004, Appellant
filed a petition pursuant to the Post Conviction Relief Act (PCRA),
pro se. On October 14, 2004, counsel was appointed and filed
an amended PCRA petition. On December 7, 2006, Appellant’s
appeal rights were reinstated nunc pro tunc, and counsel was
permitted to withdraw on December 21, 2006. On January 4,
2007, current counsel entered his appearance on behalf of
Appellant and filed a Notice of Appeal on January 10, 2007.
Commonwealth v. Perez, 76 EDA 2007, 954 A.2d 40 (Pa. Super. filed May
30, 2008) (unpublished memorandum at 2–6) (footnotes omitted). That
panel affirmed the judgment of sentence. Id. at 10. The Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal on
October 23, 2008. Commonwealth v. Perez, 960 A.2d 455 (Pa. 2008).
On April 6, 2009, the United States Supreme Court denied Appellant’s
petition for certiorari. Commonwealth v. Perez, 556 U.S. 1170 (2009).
On June 24, 2009, Appellant filed a PCRA petition and the court
appointed counsel. On June 11, 2013, current counsel filed an amended
petition and, on September 3, 2013, the Commonwealth filed a motion to
dismiss the petition. After counsel filed a reply to the Commonwealth’s
motion, on October 1, 2013, the PCRA court filed a dismissal notice pursuant
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to Pa.R.Crim.P. 907. On November 8, 2013, Appellant’s PCRA petition was
dismissed without a hearing. This appeal followed.
Appellant presents the following issues for review:
Is the [A]ppellant entitled to post-conviction relief in the form of
a new trial or a remand for an evidentiary hearing as a result of
the ineffective assistance of trial counsel?
A. Is the [A]ppellant entitled to post-conviction relief in the form
of a new trial or a remand for an evidentiary hearing since trial
counsel rendered ineffective assistance of counsel when he failed
to object to the trial court’s failure to give the jury a “no adverse
inference” instruction?
B. Is the [A]ppellant entitled to post-conviction relief in the form
of a new trial or a remand for an evidentiary hearing since trial
counsel rendered ineffective assistance of counsel when he failed
to request the trial court to instruct the jury that prior consistent
statements are not substantive evidence?
Appellant’s Brief at 4.1
Our standard of review of a trial court order granting or denying relief
under the PCRA requires us to determine whether the decision of the PCRA
court is supported by the evidence of record and is free of legal error. “The
PCRA court’s findings will not be disturbed unless there is no support for the
1
In the body of his brief, Appellant presents the additional argument, not
included in his Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, that the PCRA court erred when it denied him the opportunity to
present evidence in support of his claims at an evidentiary hearing. Issues
that are not set forth in an appellant’s statement of matters complained of
on appeal are deemed waived. Pa.R.A.P. 1925(b)(4)(vii); Commonwealth
v. Diamond, 83 A.3d 119, 136 (Pa. 2013).
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findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014).
A PCRA petitioner alleging ineffectiveness of his counsel will be granted
relief only if he is able to prove that “in the circumstances of [his] particular
case,” the truth-determining process was undermined to the extent “that no
reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). The law presumes that counsel was effective, and
it is the petitioner’s burden to prove the contrary. Commonwealth v.
Payne, 794 A.2d 902, 906 (Pa. Super. 2002). Thus, to prove counsel
ineffective, the petitioner must show that: (1) his underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his action or
inaction; and (3) the petitioner suffered actual prejudice as a result.
Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013). To
satisfy the prejudice prong, it must be demonstrated that, absent counsel’s
conduct, there is a reasonable probability that the outcome of the
proceedings would have been different. Commonwealth v. Charleston,
94 A.3d 1012, 1019 (Pa. Super. 2014). If it has not been demonstrated that
counsel’s act or omission adversely affected the outcome of the proceedings,
the claim may be dismissed on that basis alone, and the court need not first
decide whether the first and second prongs have been met.
Commonwealth v. Rainey, 928 A.2d 215, 224–225 (Pa. 2007) (quoting
Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)).
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With this analytical framework in mind, we first consider Appellant’s
claim that trial counsel was ineffective because he failed to object to the trial
court’s omission of a no–adverse–inference instruction in its charge to the
jury. A no–adverse–inference instruction directs the jurors that they may
not draw any derogatory insinuation from a defendant’s failure to testify on
his own defense, because the defendant has the unqualified right not to take
the stand if he so chooses. Commonwealth v. Stanley, 830 A.2d 1021,
1022 n.1 (Pa. Super. 2003).
At the close of the trial testimony, the trial court conducted an on–
the–record colloquy regarding Appellant’s right to testify. Appellant advised
the court that he did not intend to testify and that his decision was knowing,
voluntary, and intelligent. N.T., 4/16/03, at 80–81. Additionally, following
consultation with his counsel, Appellant indicated that he wanted the trial
court to include a no–adverse–inference instruction in its charge to the jury.
Id. at 78–79. Despite Appellant’s election that the jury receive the
requested instruction, the trial court neglected to do so. Defense counsel
did not object to the trial court’s dereliction in this regard.
The Pennsylvania Supreme Court has stated that “as a matter of
Pennsylvania constitutional law, as under the United States Constitution,
criminal defendants in this Commonwealth are entitled to a ‘no–adverse–
inference’ jury instruction, when a timely request is made to the trial court.”
Commonwealth v. Lewis, 598 A.2d 975, 979 (Pa. 1991) (footnote
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omitted). The post-Lewis development of adverse–inference instruction
jurisprudence was delineated by this Court in Stanley, 830 A.2d at 1024–
1025. The Stanley Court dissected a trial court’s decision that counsel’s
failure to request an on–the–record colloquy with regard to the defendant’s
decision to waive his right to the instruction constituted prejudice per se,
and it granted the defendant a new trial based upon trial counsel’s inactivity.
On appeal, the Stanley Court determined that resolution of the
ineffectiveness claim was steered by Commonwealth v. Thompson, 674
A.2d 217 (Pa. 1996), the seminal case concerning the adverse inference
issue. Stanley, 830 A.2d at 1024.
In Thompson, the appellant claimed that his counsel was ineffective
because he did not request a no–adverse–inference instruction and did not
conduct a colloquy indicating that the right to an instruction was waived.
The Thompson Court determined that a trilogy of cases, namely, Lewis,
598 A.2d 975, Commonwealth v. Edwards, 637 A.2d 259 (Pa. 1993), and
Commonwealth v. Howard, 645 A.2d 1300 (Pa. 1994), offered the
following guidance: “[T]he [no–adverse–inference] charge accurately
reflects the important legal maxim that silence is not evidence of guilt; the
charge is not required; however, once a defendant has expressed a clear
intent to either include or exclude the charge, that intent must be carried
out.” Thompson, 674 A.2d at 221. Although ultimately concluding that the
petitioner failed to demonstrate that he was prejudiced by counsel’s failure
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to request the instruction, the Thompson Court announced a new
prospective rule that “the no adverse inference instruction shall be given
absent an express on the record colloquy by the defendant waiving the
charge.” Id. at 222 (emphasis in original).
It fell upon the Stanley Court, then, to address the consequences of
counsel’s failure to request a Thompson colloquy. For four reasons, the
Court rejected the concept that the failure to request the colloquy
represented prejudice per se: 1) Thompson is silent on the appropriate
remedy; 2) the Pennsylvania Supreme Court rejected claims of prejudice per
se where counsel was alleged to be ineffective for failing to ensure that the
instruction was provided in Thompson, 674 A.2d at 222, and Howard, 645
A.2d at 1308, and instead demanded utilization of a particularized finding of
prejudice in accordance with the three–pronged ineffectiveness test; 3) the
Thompson Court ruled that prejudice was not presumed when counsel fails
to request a colloquy; and 4) the Supreme Court proclaimed rules of per se
prejudice in other cases. See, e.g., Commonwealth v. Mikell, 729 A.2d
566, 571 (Pa. 1999) (stating that counsel’s inexplicable failure to request
alibi instruction constituted constitutionally ineffective assistance of
counsel);2 Commonwealth v. Persinger, 615 A.2d 1305, 1308 (Pa. 1992)
2
Later, in Commonwealth v. Hawkins, 894 A.2d 716 (Pa. 2006), the
Pennsylvania Supreme Court reviewed its prior decisions on the alibi
instruction and observed that those cases have been misinterpreted. The
Court explained that failure to request the instruction is not per se
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(counsel’s failure to file motion to withdraw guilty plea when defendant was
not informed that his sentences could be imposed consecutively caused
manifest injustice). Stanley, 830 A.2d at 1026. Reasoning that if the
failure to request the underlying instruction is not prejudicial per se, then a
failure to request a colloquy with respect to waiver of the instruction also
cannot constitute prejudice per se, the Stanley Court held that the standard
three-part ineffectiveness test should govern the analysis and remanded for
the trial court to make an individualized finding on the prejudice prong. Id.
at 1027.
In the instant case, Appellant contends that he was denied his state
and federal constitutional rights when the trial court failed to give the jury
the no–adverse–inference instruction after Appellant specifically indicated
that he wanted the instruction. He further argues that there was no
reasonable basis for trial counsel’s failure to object to the trial court’s
omission of the instruction in its jury charge. Finally, Appellant urges that
he can demonstrate prejudice resulting from trial counsel’s actions.
In rejecting Appellant’s post–conviction claim that counsel was
ineffective for failing to object to the trial court’s deficient jury instruction,
the PCRA court reiterated the pertinent section of the trial court’s charge to
the jury:
ineffectiveness. Instead, “competent counsel may waive an alibi instruction
where counsel has a reasonable basis for doing so.” Id. at 717.
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You will start with the presumption of innocence. That’s the first
fundamental. The defendant is presumed to be innocent and the
mere fact that he was arrested and charged with a crime is not
evidence of guilt[]. A defendant is presumed to remain innocent
throughout the trial unless and until you conclude, based on a
careful and impartial consideration of the evidence, that the
Commonwealth has proved him guilty beyond a reasonable
doubt. It is not the Defendant’s burden to prove that he is
innocent. Instead, the Commonwealth always has the burden of
proving each and every element of the crimes charged and that
the defendant is guilty of that crime that you are considering
beyond a reasonable doubt. A person accused of [a] crime is
not required to present any evidence or prove anything in his
own defense. If the evidence presented fails to meet the
Commonwealth’s burden, then your verdict must be not guilty.
On the other hand, if the evidence does prove beyond a
reasonable doubt that this defendant is guilty, then your verdict
as to that particular crime must be guilty. N.T. 4/16/2003 @
115–116.
PCRA Court Opinion, 3/19/14, at 5.
The PCRA court then explained why the trial court’s instructions to the
jury did not represent an abuse of discretion and why trial counsel’s
corresponding failure to object to the charge did not constitute ineffective
representation:
In the case sub judice, the trial court instructed the jury
that Appellant was not required nor expected to present any
evidence, and that included Appellant testifying in defense. The
trial court reiterated further that it was not Appellant[‛]s burden
to prove his innocence. The instructions give[n to] the jury were
sufficient and within the trial court’s broad discretion and present
an accurate statement of the law. There was no abuse of
discretion.
Trial counsel will not be deemed ineffective for failing to
pursue a meritless objection to the trial court’s jury instructions
and he is presumed effective until Appellant proves otherwise.
Appellant failed to meet this burden.
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Moreover, Appellant failed to prove that, but for the
alleged omission of trial counsel, the outcome of the proceedings
would have been different, i.e., prejudice. Appellant was not
prejudiced by the cited act of omission. Error was not
committed.
Id. at 5–6.
Unlike the PCRA court, we find arguable merit in Appellant’s underlying
claim that he was denied his constitutional rights. While the PCRA court and
the Commonwealth posit that the trial court’s charge to the jury, as a whole,
explained that Appellant was not expected to present any evidence or prove
his innocence, Lewis explicitly rejected the concept that less specific
instructions secure a defendant’s constitutional guarantee to remain silent at
trial without adverse consequence:
The entire premise underlying our requirement of the “no-
adverse-inference” charge to the jury, under Article I, Section 9,
is that the trial judge is vested with an obligation to protect the
defendant’s right to remain silent, free from the insidious danger
of adverse inference presented by a jury left free to wander in
speculation. Experience teaches us that the very exercise of an
individual’s right not to testify, under Article I, Section 9, may
endanger that right if the jury is left free to draw negative
inferences from the defendant’s decision to exercise his or her
constitutional privilege. The trial court, being in a unique
position to protect a defendant’s constitutionally secured right
through the jury charge, is the only bulwark to ensure that the
exercise of a fundamental right does not turn into an act of
constitutional suicide. Having determined in this Commonwealth
that a “no-adverse-inference” charge is necessary to secure the
guarantees of Article I, Section 9, the judge has either given the
charge or he has not. Make-shift substitutes will not suffice.
Juries must be told in no uncertain terms that no adverse
inference may be drawn from a defendant’s failure to take the
stand; otherwise, we are left to mere guesswork as to the
meaning juries have ascribed to tangentially related words of the
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court. In the instant case, it is undisputed that the trial judge
failed to give the “no-adverse-inference” charge, after being
timely requested to do so by counsel for defendant. Under Article
1, Section 9, a constitutional violation has occurred.
Lewis, 598 A.2d at 980 (emphasis in original) (footnotes omitted).
Nor, as urged by the Commonwealth, was the trial court’s error in
omitting the instruction cured by the voir dire and defense counsel’s closing
argument. Apparently during voir dire prospective jurors were asked
whether a defendant’s decision to remain silent would influence their
assessment of Appellant’s guilt.3 Then, in his closing argument, defense
counsel reminded the jury of Appellant’s presumed innocence:
There was, in fact, the juror who said that he was not able to
stay with us because he was concerned about when a defendant
on trial doesn’t get up on that witness stand and explain himself
or present his side of the story. Well, ladies and gentlemen of
the jury, his Honor will instruct you that [defendant] is presumed
innocent, that he doesn’t have to do anything and the
Commonwealth still has the burden of proof beyond a reasonable
doubt and unless they overcome that burden, you must find him
not guilty.
N.T. 4/16/03, 96–97.
Following the principles enunciated in Lewis, the Commonwealth
cannot present a patchwork quilt of comments to the jury and contend that,
stitched together, they were sufficient to safeguard the concept embodied
within the no-adverse-inference instruction. The case law teaches instead
that once the instruction is requested, the trial court must emphatically
3
The voir dire notes of testimony were not included in the appellate record.
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include it in its charge to the jury. Accordingly, trial counsel’s failure to
object to the trial court’s instruction was error and would satisfy the
requirement that Appellant present a claim of arguable merit. As for a
possible reasonable basis for the trial counsel’s failure to object to the
instruction, we render no opinion in the absence of an evidentiary hearing.
“The reasonableness of an attorney’s strategic or tactical decisionmaking is a
matter that we usually consider only where evidence has been taken on that
point.” Commonwealth v. duPont, 860 A.2d 525, 533 (Pa. Super. 2004)
(citing Commonwelath v. Di Nicola, 751 A.2d 197, 202 (Pa. Super.
2000)).
The conclusion that Appellant’s claim may be meritorious is
inconsequential, however, because Appellant has failed to establish the
prejudice component of the ineffective assistance of counsel test. We
conclude, after review, and in agreement with the PCRA court, that even if a
no–adverse–inference instruction was given, there is no reasonable
probability that the outcome of the proceedings would have been different.
Appellant insists that he can demonstrate prejudice because the
evidence of his guilt was not overwhelming. His defense at trial was that he
did not commit the crimes, and he presented no witnesses on his behalf.
Appellant surmises that this is a situation where the jury might expect to
hear from the defendant, and there is a corresponding viable risk that the
jury would draw an adverse inference from Appellant’s failure to testify.
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We disagree with Appellant’s categorization of the evidence as
underwhelming. While circumstantial, convincing evidence gleaned from the
detailed factual recital in Commonwealth v. Perez, 76 EDA 2007, and our
independent review of the record, reveal that Appellant killed the victim.
On the evening of the murder, Shakira Morse, the victim’s sister,
testified that Appellant twice went to the victim’s house, and the victim left
the residence shortly after Appellant’s second visit. Appellant, the victim,
and Levaughn Nesbitt sat in an abandoned car and smoked marijuana.
Nesbitt testified that Appellant pulled out a black gun and stated that “he
was going to use it.” N.T., 4/15/03, at 108. An eyewitness, Ismael Roman,
heard a gunshot, then observed Appellant fire two shots. Id. at 69–73. The
police recovered a shell casing in the front passenger seat of the abandoned
car where Appellant had been sitting and where the body of the victim was
discovered. Two other casings and a gun were found in the vacant lot near
the abandoned automobile. Id. at 35–37. Another police officer heard a
commotion at Appellant’s grandmother’s house and observed Appellant
walking down the stairs with a “large wound on his head.” Id. at 135–136.
When Appellant was eventually stopped by the police, he repeatedly
exclaimed, “Oh God, please forgive me for what I did.” Id. at 152.
In light of this compelling evidence, we conclude that, even if a no–
adverse–inference instruction was given, there was no realistic likelihood
that the jury would have reached a not guilty verdict. Because Appellant
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cannot prove the required prejudice, trial counsel’s failure to object to the
incomplete instruction cannot be deemed ineffective representation.
Charleston, 94 A.3d at 1019.
Appellant’s second allegation of ineffectiveness concerns trial counsel’s
failure to request the trial court to instruct the jury that prior consistent
statements are not substantive evidence. Under Pennsylvania Rule of
Evidence 613(c), consistent statements of a witness are admissible in order
to rebut an express or implied charge of fabrication, bias, improper influence
or motive, or faulty memory, or a prior inconsistent statement which the
witness has denied or explained. Pa.R.E. 613(c)(1), (2). The prior
consistent statement is received only for rehabilitation and not as
substantive evidence. Commonwealth v. Busanet, 54 A.3d 35, 66 (Pa.
2012), cert. denied, 134 S. Ct. 178 (2013); Commonwealth v.
Baumhammers, 960 A.2d 59, 89 (Pa. 2008).
The ineffectiveness claim here arises in the context of the testimonies
of Nesbitt and Morse concerning Nesbitt’s direct trial testimony that he
witnessed Appellant pull out a gun while he, the victim, and Appellant were
in the abandoned car. On cross–examination, Nesbitt admitted that he did
not tell police that Appellant had drawn a gun when Nesbitt was interviewed
after the crime. Nesbitt stated that he withheld the gun information initially
because he “didn’t want to be a snitch and [he] was afraid [he] might get in
trouble.” N.T., 4/15/03, at 118. In response to this testimony, the
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Commonwealth attempted to elicit evidence from Morse that Nesbitt told her
the day after the shooting that he had seen Appellant with a gun. Id. at
127–128. Defense counsel objected, arguing that the testimony was
inadmissible in the absence of an allegation of prior fabrication. The trial
court overruled the objection and allowed Morse’s testimony because it
believed that Nesbitt’s cross–examination demonstrated a tendency towards
recent fabrication. Id. at 128. The trial court, however, did not explain to
the jury that Morse’s statement was admissible only for Nesbitt’s
rehabilitation and not as substantive evidence. As with his silence on the
court’s omission of the no–adverse–inference instruction, trial counsel did
not object to the court’s failure to explain the limited evidentiary purpose of
Morse’s recollection of Nesbitt’s prior consistent statement.
In denying Appellant’s ineffectiveness claim in this regard, the PCRA
court determined as follows:
Appellant has failed to meet his burden of proof. Here,
Leva[ug]hn Nesbitt testified at trial that he observed Appellant in
possession of a gun while seated in the abandoned station
wagon. It was in the province of the jury to weigh Nesbitt’s
testimony with his admission that he had not initially provided
police with that information. The evidence presented here was
more than sufficient to sustain the jury’s verdict that Appellant is
guilty of these crimes and it is unreasonable to conclude that the
jury would have come to a different outcome but for the
omission of the consistent statement jury instruction. Error was
not committed.
PCRA Court Opinion, 3/19/14, at 6–7.
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Appellant takes issue with the PCRA’s court dismissal of the
significance of Nesbitt’s testimony. He counters that Nesbitt’s statement
that he witnessed Appellant with a gun on the night of the murder and
uttered an intention to use it was so damning that it was essential that the
jury understand that his prior consistent statement about Appellant’s gun
possession could not be considered substantive evidence.
While Appellant again presents a claim of arguable merit, we concur
with the PCRA court’s determination that it is not reasonably probable that
the jury would have reached a not guilty verdict but for the omission of the
consistent statement jury instruction. Although trial counsel should have
objected to the trial court’s failure to instruct the jury on the circumscribed
rehabilitative nature of Morse’s testimony, see Busanet, 54 A.3d at 66, we
conclude that Appellant cannot demonstrate the requisite prejudice arising
from this action. We have already decided that significant evidence supports
Appellant’s conviction. Additionally, even if the jury had understood that
Nesbitt’s earlier statement was not substantive evidence, there was no
limitation on its consideration of Nesbitt’s trial testimony that Appellant
brandished a gun on the night the crimes occurred as direct evidence of his
guilt. The prior consistent statement was thereby cumulative of properly
admitted evidence, and counsel cannot be deemed ineffective for failure to
object to the missing instruction. See duPont, 860 A.2d at 535 (opining
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that defendant cannot prove prejudice where challenged evidence was
cumulative of properly admitted evidence).
Appellant’s inability to demonstrate that he was prejudiced by
counsel’s alleged ineffectiveness is fatal to his claims. For this reason, we
agree with the PCRA court’s ruling that Appellant is not entitled to post–
conviction relief, and the order denying same will be affirmed.
Order affirmed.
Judge Bowes joins the Opinion.
Judge Ott Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2014
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