Commonwealth v. Barnett

J-A09003-15
2015 PA Super 162COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT BARNETT,
Appellant No. 1209 EDA 2009
Appeal from the Judgment of Sentence December 2, 2002
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0200061-2002
BEFORE: BOWES, DONOHUE, AND STABILE, JJ.
OPINION BY BOWES, J.: FILED JULY 29, 2015
Robert Barnett appeals nunc pro tunc from the judgment of sentence
of life imprisonment after a jury found him guilty of first-degree murder,
robbery, burglary, conspiracy, and carrying a firearm without a license.
In addition to being sentenced to life imprisonment, the Court sentenced
Appellant to five to ten years for criminal conspiracy and three and one-half
to seven years on the firearms count. This case returns to this Court after
our Supreme Court remanded the matter to the trial court following its
decision in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Upon
review, we affirm.
The trial court delineated the following relevant facts.
On the afternoon of September 8, 2001, 84 year old Harry
Renner was working in the upstairs office of his restaurant
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located at 4120 Main Street in Manayunk neighborhood of
Philadelphia. As Mr. Renner sat working at his desk, [A]ppellant
and his son entered the office, threw a blanket over Mr. Renner’s
head and ordered him at gunpoint to open the office’s safe. Mr.
Renner complied and [A]ppellant and his son took the thousands
of dollars of cash proceeds from the previous night’s business
that was in the safe. Appellant then shot the elderly victim in
the head, killing him.
Prior to the crime, [A]ppellant had asked his friend Craig
Walker to participate as the getaway driver, but Walker refused.
When Walker saw the story of the robbery and murder on the
evening news, he immediately recognized it as the crime
[A]ppellant had invited him to join him in committing. Then, on
September 10, 2001, both [A]ppellant and his son drove new
cars to Walker’s home where [A]ppellant bragged about robbery.
Walker said that [A]ppellant glared at his son when the son
scolded [A]ppellant that he didn’t have to shoot the victim. Mr.
Walker saw [A]ppellant a few more times in the area during the
next few days, carrying a lot of cash and handing out money to a
crowd of people. Appellant also bragged about the crime to his
girlfriend, Gail Alvin. Gail Alvin later told police that she
accompanied [A]ppellant and his son to a car dealership when
they purchased the new vehicles. When she asked where they
had gotten the money from for the cars, [A]ppellant bragged
about having committed a robbery in Manayunk.
On October 15, 2001, when police attempted to stop
[A]ppellant for disregarding a stop sign, [A]ppellant sped off,
went through traffic signals and finally stopped on the sidewalk.
Appellant then fled on foot and struggled with police as they
apprehended him. Police recovered thirteen $100.00 bills from
[A]ppellant’s person. Appellant later gave a voluntary statement
to police in which he admitted his participation in the crimes.
Additionally, while [A]ppellant was incarcerated awaiting trial, a
fellow inmate, Ernest Johnson, heard [A]ppellant tell another
inmate that he had to shoot Mr. Renner because he had seen
[A]ppellant’s face, and that [A]ppellant planned to blame his son
for everything.
Trial Court Opinion, 6/22/09, at 2-3.
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Following the imposition of his sentence, Appellant, represented by
trial counsel, filed a timely direct appeal. However, due to an insufficient
brief, this Court determined that all of Appellant’s issues were waived.
Accordingly, Appellant sought post-conviction relief via the Post-Conviction
Relief Act (“PCRA”). In his PCRA petition, Appellant raised various claims of
ineffective assistance of counsel and also sought the reinstatement of his
direct appeal rights nunc pro tunc. The PCRA court conducted an evidentiary
hearing where both Appellant and his trial attorney testified. The court
denied Appellant’s petition on the merits.
Appellant appealed, and this Court reversed solely as to the denial of
Appellant’s direct appeal rights. Thus, Appellant’s direct appeal rights were
reinstated. This Court did not address Appellant’s remaining ineffective
assistance of counsel claims. In Appellant’s reinstated direct appeal, he
raised only ineffective assistance of counsel issues. This Court, in a
published en banc decision, determined that Appellant’s ineffectiveness
claims could not be addressed during his reinstated direct appeal.
Commonwealth v. Barnett, 25 A.3d 371 (Pa.Super. 2011) (en banc),
vacated by 84 A.3d 1060 (Pa. 2014). The Pennsylvania Supreme Court
vacated that order and remanded the case to the PCRA court after its
decision in Holmes, supra.
The Holmes Court held, in pertinent part, that ineffectiveness claims
cannot be addressed on direct appeal absent a waiver of PCRA rights. It
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determined that where good cause is shown, and a defendant waives PCRA
review, ineffectiveness claims may be addressed on direct appeal.
Thereafter, the PCRA court conducted a waiver colloquy and Appellant, with
the agreement of the Commonwealth, waived his right to PCRA review. The
matter is now ready for this Court’s review. Appellant raises the following
issues on appeal.1
1. Trial Counsel and Appellate Counsel rendered ineffective
assistance of Counsel for failing to properly preserve and file
for appeal issues raised at trial regarding a) evidence of
Appellant’s flight from an unrelated incident as evidence of
Appellant’s guilt in the instant case; b) introduction of
evidence of money seized from the defendant in an unrelated
incident as evidence of “sudden wealth” of the Defendant
from the instant case; c) the introduction of testimony and
evidence of Appellant’s arrest for a crime unrelated to the
criminal charge for which he was on trial.
2. Trial Counsel was ineffective for failing to request an
instruction that the charges which gave rise to the evidence
of the defendant’s flight and moneys found on the defendant
were unrelated to the charge for which he was on trial [and]
were dismissed for lack of prosecution;
3. That trial Counsel was ineffective in failing to object to the
Commonwealth’s closing argument where the prosecution
argued that it need not prove a specific intent to kill in order
to be found Guilty of Murder in the First Degree and was
ineffective in failing to object to the trial Court’s instruction
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1
Both Appellant and the Commonwealth have filed the same principal brief
lodged in the prior appeal. The Commonwealth, however, has now
abandoned its originally-briefed position that Appellant’s ineffectiveness
claims must be deferred until PCRA review. As the Commonwealth does not
challenge whether good cause exists, we do not consider that question
herein.
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that Appellant could be found Guilty of Murder in the First
Degree on the acts, circumstantial or direct of an accomplice,
co-conspirator thereby instructing the jury that the
Commonwealth did not need to prove a specific intent to kill
by appellant to be found Guilty of Murder in the First Degree.
4. That trial counsel was ineffective for failure to object to the
introduction to or preserve for appeal and file for appeal in
the introduction of the testimony of Craig Walker of the
testimonial statement of Defendant’s son/co-Defendant
Robert Barnett, Jr. that “you didn’t have to shoot him”;
5. That trial counsel failed to properly preserve or file an appeal
to the introduction of unrelated criminal actions and/or
prejudicial testimony relating to the Appellant that related to
an Office Max Robbery in the Plymouth Meeting Mall and a
composite sketch pursuant to the defendant and the
defendant’s son;
6. That trial Counsel failed to fully and properly advise Appellant
regarding his right to testify at trial and therefore the
Appellant’s decision not to testify was not fully knowing,
involuntary [sic] or intelligent including but not limited to
being ineffective for failing to investigate defendant’s access
to cash money on Appellant’s behalf that would have rebutted
the prosecution’s theory of “sudden wealth”.
Appellant’s brief at 4 (inconsistent capitalization in original).
Appellant’s issues are premised on ineffective assistance of counsel.
“To plead and prove ineffective assistance of counsel a petitioner must
establish: (1) that the underlying issue has arguable merit; (2) counsel's
actions lacked an objective reasonable basis; and (3) actual prejudice
resulted from counsel's act or failure to act.” Commonwealth v. Stewart,
84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet any of
these aspects of the ineffectiveness test results in the claim failing. Id.-5-
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Arguable merit exists when the factual statements are accurate and
“could establish cause for relief.” Id. at 707. Whether the “facts rise to the
level of arguable merit is a legal determination.” Id. In considering
whether counsel acted reasonably, we look to “whether no competent
counsel would have chosen that action or inaction, or, the alternative, not
chosen, offered a significantly greater potential chance of success.” Id.“Counsel's decisions will be considered reasonable if they effectuated his
client's interests. We do not employ a hindsight analysis in comparing trial
counsel's actions with other efforts he may have taken.” Id. (citations
omitted). Lastly, prejudice exists where “there is a reasonable probability
that, but for counsel's errors, the result of the proceeding would have been
different.” Id. This probability is sufficient when it “undermines confidence
in the outcome of the proceeding.” Id. Counsel is presumed to have
rendered constitutionally effective representation. See Strickland v.
Washington, 466 U.S. 668, 689 (1984)
Appellant’s initial claim is actually three separate issues. First,
Appellant asserts that counsel erred in failing to object to the admission of
evidence of Appellant’s flight from an unrelated incident, i.e., his arrest for
possession of cocaine. Next, he avers that trial counsel rendered ineffective
assistance in allowing into evidence money that was seized from that arrest.
Lastly, Appellant posits that trial counsel was ineffective because he did not
object to the introduction of Appellant’s arrest for another criminal charge.
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With respect to Appellant’s first argument, trial counsel did file a
motion in limine seeking to preclude the Commonwealth from introducing
evidence from Appellant’s arrest on October 16, 2001. At that time,
Appellant was operating a stolen vehicle and in possession of drugs. When
police attempted to pull him over after he ran a stop sign, he fled in his car
and then on foot. Police captured him and recovered $1300 in his pocket.
Appellant maintained that the evidence of the arrest and flight therefrom
should be precluded because it was unrelated to the charges in this case.
The trial court granted Appellant’s motion in part. Specifically, it
precluded the Commonwealth from introducing evidence that the car was
stolen, and that Appellant possessed drugs and made a throwing motion
during his flight. However, the court permitted the Commonwealth to
introduce the fact that Appellant fled from police and that they recovered
$1300 in cash when he was arrested.
Appellant contends that the trial court’s ruling provided him with “the
ultimate Hobson’s choice.” Appellant’s brief at 15. According to Appellant,
the reason for his flight was the stolen car and illegal drugs, but to
demonstrate that position he would be “compelled to introduce to the jury
inadmissible criminal acts.” Id. In contrast, if Appellant did not indicate
that the reasons for his flight were for the stolen car and possession of
drugs, he would allow “the introduction to the jury of a false factual basis for
his flight[.]” Id. Appellant adds that the record establishes that he did not
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know that he was wanted for homicide when he fled and no arrest warrant
existed on that charge at the time. Accordingly, he submits that
consciousness of guilt for homicide could not be proven where he did not
know that he was wanted for that crime.
Since trial counsel filed a motion in limine seeking to preclude the
introduction of this evidence, including his flight, Appellant’s ineffectiveness
claim necessarily fails. Appellant also focuses his ineffectiveness position on
appellate counsel’s performance and his failure to preserve the issue in his
original direct appeal. However, that concern became moot when
Appellant’s direct appeal rights were reinstated. Because Appellant is
proceeding on direct appeal, his argument properly would be that the trial
court erred in ruling this evidence admissible. We are cognizant that
although Appellant’s brief, as outlined above, sets forth this position,
Appellant in his statement of issues did not raise an argument of trial court
error despite presenting such an issue in his May 15, 2009 Rule 1925(b)
concise statement. As to the underlying issue, the Commonwealth reiterates
that trial court’s position that whether Appellant’s flight was the result of the
stolen car and drugs rather than the homicide went to the weight of the
evidence and not its admissibility.
We find, in regards to Appellant’s trial court error arguments, aside
from waiver due to failure to include it in his statement of issues, that any
error in the admission of Appellant’s flight and the money recovered from
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him, was harmless error.2 An error “can be harmless only if the appellate
court is convinced beyond a reasonable doubt that the error is harmless.”
Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978). “When the
record reveals that an error did not prejudice the defendant, or that the
prejudice was so minimal that, beyond a reasonable doubt, it did not
influence the jury, [the Pennsylvania Supreme Court has] held the error
harmless.” Id. at 164–165 (footnotes omitted). “Under this approach, a
reviewing court first determines whether the untainted evidence, considered
independently of the tainted evidence, overwhelmingly establishes the
defendant's guilt.” Id. at 166.
Here, Appellant confessed to police to being the getaway driver for the
robbery, though he claimed that his son killed the victim. The
Commonwealth also introduced evidence that Appellant told an inmate that
he shot the victim because he saw Appellant’s face. That inmate also
testified that Appellant indicated that he would place the blame on his son.
The prosecution offered evidence that Appellant’s girlfriend provided a
statement to police that Appellant admitted to her that he committed a
____________________________________________
2
We recognize the distinction between an ineffectiveness claim and whether
prejudice exists and a harmless error analysis. Commonwealth v.
Freeland, 106 A.3d 768, 776 (Pa.Super. 2014); Commonwealth v.
Howard, 645 A.2d 1300 (Pa. 1994). Since we are analyzing Appellant’s
trial court error arguments and not an ineffectiveness position, we employ
the harmless error standard. Of course, when an error is harmless a
defendant cannot establish actual prejudice under the ineffectiveness rubric.
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robbery in Manayunk when she questioned him about the large sum of
money he possessed. In addition, the Commonwealth presented evidence
from Appellant’s friend, Craig Walker, who testified that Appellant asked him
to take part in a robbery. Appellant and his son thereafter both admitted to
Mr. Walker to committing the robbery. In doing so, Appellant’s son
remarked that Appellant should not have shot the victim. Further, there is
no dispute that one day after the robbery and murder, Appellant and his son
purchased two vehicles with approximately $15,000 in cash. For these
reasons, we find that any prejudice to Appellant was minimal and would not
have influenced the jury.
Appellant also argues that counsel was ineffective in permitting the
introduction of the money seized during the traffic stop as evidence of
sudden wealth. As noted, counsel did object and sought to preclude this
evidence from being admitted. Hence, trial counsel cannot be ineffective on
that ground. Further, for the same reason outlined above, any claim of
appellate counsel ineffectiveness for not raising a claim of trial court error on
direct appeal is moot since Appellant’s appeal rights were reinstated.
Appellant also, though having set forth the claim in his brief as his
second issue, posits in the initial argument section of his brief that counsel
erred in failing to seek a jury instruction that the Commonwealth returned to
him the money it seized. We note our disapproval of Appellant’s briefing
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method in this regard. Pointedly, Appellant’s second argument in his brief
pertains to his third issue, resulting in unnecessary confusion.
With respect to the merits, Appellant avers that “[d]ue to trial
[c]ounsel’s ineffectiveness, . . . . the jury [was] never made aware of the
fact that all the charges rising out of the October 16, 2011 case were
dismissed and the monies in fact which would apparently identify the
defendant to the crime of September 8, 2001 were returned to the
defendant.” Appellant’s brief at 17. Continuing, he submits, “[t]he jury is
told, falsely, that the monies are the only thing taken from the defendant at
the time of this stop as a result of an inventory search.” Id.We again note that Appellant has muddled together his argument
relative to trial counsel ineffectiveness and trial court error. See Appellant’s
brief at 17-18; Id. at 18 (“In the present case, the Court improperly
permitted the introduction of the evidence of flight and sudden wealth to the
prejudice of the defendant.”). The majority of Appellant’s position as to
sudden wealth focuses on trial court error, a distinct claim from counsel’s
ineffectiveness. See Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005).
Moreover, other properly admitted evidence of Appellant’s sudden wealth,
pertaining to his purchase of vehicles, was admissible. Hence, any trial
court error in admitting evidence of Appellant’s possession of $1300 was
harmless. Lastly, he has not forwarded any additional argument as to the
introduction of testimony and evidence of Appellant’s commission of another
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crime. Frankly, he does not specify what evidence or other crime he is
referencing. Accordingly, he is entitled to no relief.
In Appellant’s second argument, which, as mentioned, is his third
issue, he asserts that trial counsel was ineffective for failing to object to the
prosecutor’s closing argument and neglecting to object to the jury
instruction on specific intent relative to accomplice liability. Appellant
contends the following statement by the prosecutor was erroneous:
if I assist you in the commission of a criminal act-let’s say we
agree to rob a bank together. You say we are going to rob this
bank together. I tell you I’ll get the map of the bank and I’ll find
out really good times and I’ll get the combination to the vault
and I do that, and I come to you and I say okay, here’s the map,
go in this way, make a left, the vault will be straight ahead of
you, the combination is 1, 2, 3, now, go ahead, and when you
come back, we’re going to share whatever. And you say fine
and you go off and go into that bank . . . .and you come out and
come back to my house and you give me half of the stuff, I
never set foot in that bank but I am every bit as responsible as
you are for that burglary and that theft of the bank because we
did it together. I am your accomplice. . . .But you decided, you
know, I think I’m going to take a gun in case. And you went into
that bank and while you’re inside that bank following my map,
pushing the numbers I told you to push, the security guard
comes up behind you and says ‘freeze’ and you pull out your
gun, turn around and shoot him and then you finish getting the
securities and the bonds and the baubers and you come back out
and you come back to my house and you give me the money.
I’m as responsible as you are for the shooting of the security
guard because we share responsibility for that crime we have
entered into together.
N.T., 11/26/02, at 88. In addition, Appellant challenges counsel’s failure to
object to the prosecution’s statement that,
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A killing of the first degree is a killing with malice and a specific
intent to kill. The shooter or his accomplice or his co-conspirator
must have a fully formed intent to cause the death of this victim
before the trigger is pulled. That consciousness, that
premeditation, that intent to cause the death of your victim does
not have to be long in its formation. You must have entered
4120 Main Street with the belief that with his military precision,
we’re going to get that blanket over his head.
Id. at 91-92.
Appellant asserts that these portions of the prosecutor’s summation
erroneously posited that, “the specific intent to kill necessary for [m]urder in
[the] [f]irst [d]egree may be held by one person and imputed to another.”
Appellant’s brief at 20. He adds that these erroneous statements were
compounded when the trial court instructed the jury on accomplice liability.
According to Appellant, trial counsel should have objected to the following
instruction,
Now, members of the jury if you believe that the petitioner or
accomplice or co-conspirator intentionally used a deadly weapon
on a vital part of the victim’s body, you may regard that as an
item of circumstantial evidence for which you may infer that the
petitioner in his own mind had a specific intent to kill.
N.T., 11/26/02, at 113-114.
Appellant argues that this instruction failed to adequately set forth that
the defendant himself must possess the requisite specific intent to kill to be
guilty of first-degree murder as an accomplice. In leveling this aspect of his
argument, Appellant acknowledges that jury instructions must be read in
their entirety. Nonetheless, he asserts that where a trial court instructs both
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correctly and incorrectly and it cannot be discerned which instruction the
jury followed, such error results in prejudice. Appellant’s brief at 22 (citing
Commonwealth v. Waller, 468 A.2d 1134 (Pa.Super. 1983)). Waller,
however, is not precedential since it was a three-judge panel with one judge
concurring in result and another dissenting.
Appellant also relies on Commonwealth v. Flanagan, 854 A.2d 489(Pa. 2004). In Flanagan, the defendant entered a general plea of guilty to
homicide. During his plea, he acknowledged that it was presumed at that
time that he was guilty of third-degree murder, but the Commonwealth
could establish a higher degree of murder at a degree of guilt hearing. In
addition to a defective plea colloquy, the plea court “erroneously advised
Flanagan that accomplice theory renders an accomplice liable for ‘any crimes
committed by any other accomplice regardless of whether a particular
accomplice committed the particular crime about which we are talking.’” Id.
at 493. It incorrectly added,
So that if there are people who are accomplices in the
commission of a crime, commission of a murder, commission of
a robbery, in a commission of a theft, and if only one of them
actually commits the crime but if the other person is his
accomplice, he is helping him, he is aiding him, he is assisting
him in committing it, then the person who aids and assists and
helps and cooperates is equally guilty of the commission of any
crimes committed by the person he aided.
Id.
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During PCHA review, the PCHA court determined that plea counsel was
ineffective and granted Flanagan’s request for a trial. Both this Court and
our Supreme Court affirmed. Appellant maintains that the prosecutor’s
explanation of accomplice liability and the trial court’s accomplice liability
instruction were akin to the Flanagan trial court’s erroneous statement of
the law.
The Commonwealth first counters that the prosecutor’s argument was
legally correct. It adds that the prosecutor did not argue that Appellant was
an accomplice but sought a conviction based on the theory that he was the
shooter. Lastly, the Commonwealth reasons that the jury instructions read
as a whole establish that the jury was repeatedly informed that Appellant
must have formed a specific intent to kill to be found guilty of first-degree
murder.
Initially, we address Appellant’s claims relative to the prosecutor’s
summation. We agree that the prosecutor’s initial statement relative to
accomplice liability with respect to murder was inaccurate. A person is only
responsible as an accomplice for first-degree murder if he possesses the
requisite specific intent to kill. Id. at 501 (“to be convicted as an
accomplice, a person must act with the requisite mens rea”);
Commonwealth v. Bennett, 57 A.3d 1185, 1201 (Pa. 2012) (“the charge,
when read in its entirety, appropriately conveys that an accomplice or co-
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conspirator must possess the specific intent to kill in order to be found guilty
of first-degree murder.”).
Therefore, the prosecutor’s hypothetical bank scenario would not
establish accomplice liability for first-degree murder merely because one
agreed to rob the bank and a person was shot. Rather, the accomplice must
have shared a specific intent to kill to be considered an accomplice for first-
degree murder. Similarly, the second statement at issue is less than
precise. If a shooter possesses “a fully formed intent to cause the death of
his victim[,]” N.T., 11/26/02 at 91, but his accomplice does not, then the
accomplice is not guilty of first-degree murder.
Nonetheless, we do not find that Appellant is entitled to a new trial due
to counsel’s failure to object. Appellant has omitted the prosecutor’s
argument immediately following the latter disputed portion of the
prosecutor’s summation. There, the prosecutor made it clear that she was
arguing that Appellant was the actual shooter. Notably, the prosecutor set
forth,
We’re going to put that blanket over his head. We’re going
to prevent him from seeing our face. He’ll never be able to
identify us. . . .But when you see that victim poking up under
the blanket and looking at you and you realize, oh, wait a
minute. He sees our face. If we want to get out of here without
him being able to identify us, there’s only one way to do that.
Bang.
That moment of reflection as you’re taking the muzzle of
that gun and pressing it against the head of another human
being before you pull that trigger, that’s specific intent to kill and
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that is first-degree murder and that is what this defendant
committed.
N.T., 11/26/02, at 92-93.
She continued by noting that, if a person commits a robbery and
another person is killed and “[y]ou don’t mean for it to happen[,]” then you
are guilty of second-degree murder. Id. at 93. Thus, the full context of the
argument reveals that the prosecutor was not contending that Appellant
could be found guilty as an accomplice without a specific intent to kill.
Accordingly, because the prosecutor did not argue that Appellant should be
convicted as an accomplice and, as will be outlined infra, the trial court
instructed the jury that Appellant must have a specific intent to kill,
Appellant cannot establish actual prejudice. See Bennett, supra.
In regards to Appellant’s jury instruction, we are guided by the
following principles.
“It is axiomatic that, in reviewing a challenged jury instruction,
an appellate court must consider the entire charge as a whole,
not merely isolated fragments, to ascertain whether the
instruction fairly conveys the legal principles at issue.”
Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167,
1187 (1999). “An instruction will be upheld if it clearly,
adequately and accurately reflects the law. The trial court may
use its own form of expression to explain difficult legal concepts
to the jury, as long as the trial court's instruction accurately
conveys the law.” Commonwealth v. Spotz, 563 Pa. 269, 759
A.2d 1280, 1287 (2000) (citation omitted).
Commonwealth v. Cook, 952 A.2d 594, 626-627 (Pa. 2008). In the
present case, the court instructed the jury, “In order to find this defendant
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guilty of murder of the first degree you must find that he, in his own mind,
had the specific intent to kill and that the killing was a willful, deliberate and
premeditated act.” N.T., 11/26/02, at 112. It later reiterated, “Murder of
the first degree requires that the defendant in his own mind have the
specific intent to kill. It is an unlawful, willful, deliberate and premeditated
killing with malice.” Id. at 119. Therefore, the jury was properly instructed
that it could only find Appellant guilty of first-degree murder if it determined
that he had a specific intent to kill Mr. Renner. See Bennett, supra.
Appellant cannot establish actual prejudice.
In his next issue, Appellant contends that trial counsel was ineffective
for failing to object to the introduction to the testimony of Craig Walker
regarding Appellant’s son’s statement to his father that “you didn’t have to
shoot him.” N.T., 11/21/02, at 185.3 He submits that the trial court’s
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3
We note our disapproval with the Philadelphia Clerk of Courts, which
consistently has failed to supply this Court with the complete certified record
even in cases where the appellant has requested the pertinent transcripts.
Despite this Court entering an order during the prior appeal in this matter to
ensure that transcripts were provided, the transcripts for November 21,
2002 and November 22, 2002 are not contained in the certified record. This
Court previously made official attempts to secure all of the trial transcripts in
this matter and made unofficial inquiries after remand as well. While this
Court generally may only consider facts that have been duly certified in the
record, Commonwealth v. Young, 317 A.2d 258, 264 (Pa. 1974), where
the accuracy of a document is undisputed and contained in the reproduced
record, we may consider it. Commonwealth v. Brown, 52 A.3d 1139,
1145 n.4 (Pa. 2012). Here, the reproduced record contains the relevant
(Footnote Continued Next Page)
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admission of this statement as admissible hearsay violated his confrontation
clause rights. Appellant acknowledges that trial counsel filed a motion in
limine to preclude this evidence and repeatedly objected to the introduction
of his silence as a tacit admission. However, trial counsel did not object to
the prosecutor’s closing argument that extensively highlighted the tacit
admission. Thereafter, with the agreement of trial counsel, see id. at 100-
101,4 the trial court instructed the jury as follows,
there was a statement by the defendant’s son that was made in
the presence of the defendant. This statement of the
defendant’s son is not evidence and does not have any probative
value and should not be considered for its truthfulness.
However, where a person is accused of a crime or of doing
a criminal act and he fails to respond, that is, remain silent, that
silence may be a circumstance tending to show a tacit admission
of the facts of the accusation. Such silence does not necessarily
tend to prove an admission. A person may choose not to
respond and remain silent in the face of an accusation for a
variety of motive[s] or reasons and may do so even though the
accusation is false and untrue.
N.T., 11/26/02, at 131-132. Appellant does not challenge the prosecutor’s
argument. Instead, Appellant again confuses the procedural posture of this
matter by asserting that prior appellate counsel was ineffective for not
_______________________
(Footnote Continued)
transcripts and there is no dispute as to their contents. We therefore
considered them in our review.
4
Trial counsel did object to the introduction of the evidence, and even after
acquiescing to the jury instruction repeatedly noted that he had objected to
the introduction of the tacit admission evidence.
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addressing the admission of the tacit admission evidence in the previous
direct appeal. As we have repeatedly mentioned supra, Appellant is now
proceeding on direct appeal. Prior appellate counsel’s ineffectiveness is no
longer at issue because Appellant’s direct appeal rights were reinstated and
he was free to raise the alleged error as trial court error. Nevertheless,
since Appellant has waived further PCRA review, we decline to find waiver
based on appellate counsel’s imprecise briefing.
In Commonwealth v. Vallone, 32 A.2d 889 (Pa. 1943), overruled in
part by Commonwealth v. Dravecz, 227 A.2d 904 (Pa. 1967), our
Supreme Court, without citation and with one justice vigorously dissenting,
stated,
The rule of evidence is well established that, when a
statement made in the presence and hearing of a person is
incriminating in character and naturally calls for a denial but is
not challenged or contradicted by the accused although he has
opportunity to speak, the statement and the fact of his failure to
deny it are admissible in evidence as an implied admission of the
truth of the charges thus made.
Vallone, supra at 890.
In Dravecz, police officer read a statement to the defendant that
implicated the defendant in a burglary. The accused made no comment
once the officer was done reading the statement. The Supreme Court issued
four separate opinions, with the ultimate outcome being that the tacit
admission was inadmissible. The holding in Dravecz was subsequently
modified in Commonwealth v. Schmidt, 299 A.2d 254 (Pa. 1973). In
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Schmidt, the defendant was found guilty of murder during a burglary.
During his trial, two witnesses testified that shortly after the burglary they
were with Schmidt and his co-defendant in a car when the co-defendant said
that he was going to burn his fingerprints. Schmidt made no reply. The
Court found that the “statement accused Schmidt of nothing; he was not the
subject of the remark, and thus there was no reason for him to make any
response. The evidence, therefore, lacked probative value in establishing
the defendant Schmidt’s participation[.]” Id. at 265.
However, the court held that the admission did not entitle the
defendant to post-conviction relief because it did not violate his Fifth
Amendment right against self-incrimination. At that time, only constitutional
mistakes afforded relief under the PCHA. The Schmidt Court stated that
tacit admissions only violate the constitution in the face of police
questioning. Subsequently, in Commonwealth v. Coccioletti, 425 A.2d
387 (Pa. 1981), our Supreme Court provided that Dravecz, supra “was
limited to implied admissions made while in custody or in the presence of
police officers.” Coccioletti, supra at 392.
Both this Court and the Pennsylvania Supreme Court most recently
addressed tacit admissions in Commonwealth v. Molina, 33 A.3d 51(Pa.Super. 2011) (en banc), affirmed by, 104 A.3d 430 (OAJC). In Molina,
an en banc Court ruled that a prosecutor’s closing summation was improper
where he argued that the defendant’s pre-arrest silence, in not speaking to a
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missing persons investigator, should be used as a tacit admission of guilt in
a homicide case.
A divided Pennsylvania Supreme Court affirmed on separate
constitutional grounds. Rather than rely on the federal constitution, the lead
opinion by Justice Baer found that the use of tacit admissions involving law
enforcement violated the Pennsylvania Constitution’s prohibition against
compelled testimony. Here, Appellant does not argue that his Fifth
Amendment right against self-incrimination or his related Pennsylvania
Constitutional right against self-incrimination are implicated. Rather,
Appellant posits that his confrontation clause rights were violated because
he was not afforded an opportunity to confront his son. Appellant relies on
Crawford, supra in support. He maintains that there was no evidence that
his son was unavailable and avers that the statement was admitted for its
truth.
The Commonwealth relies on Commonwealth v. Bartlett, 704 A.2d
659, 662 (Pa.Super. 1997), and Commonwealth v. Faraci, 466 A.2d 228,
232 (Pa.Super. 1983), in arguing that tacit admissions are admissible. This
Court, in Faraci, relied on dicta from both Commonwealth v. Bolish, 113
A.2d 464 (Pa. 1955), and Commonwealth ex rel. Shadd v. Myers, 223
A.2d 296 (Pa. 1966). In neither of these cases was introduction of a tacit
admission upheld.
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The Commonwealth continues that Crawford is inapplicable because
the “actual ‘statement’ in this context is a ‘statement’ (by conduct) on the
part of defendant.” Commonwealth’s brief at 20 (citing Commonwealth v.
Brooks, 50 A.2d 325, 327 (Pa. 1947)).5 Finally, it submits that Appellant
cannot establish actual prejudice in light of the other evidence arrayed
against him.
Here, it is accurate that Appellant’s son’s statement was not the
evidence at issue, and the court instructed the jury that it could not consider
the statement for its truth. Rather, it was Appellant’s own silence in the face
of that statement that was the evidence, which is why the tacit admission
rule has ordinarily been questioned on self-incrimination grounds and not
the confrontation clause. But see Commonwealth ex rel. Staino v.
Cavell, 217 A.2d 824, 832-833 (Pa.Super. 1966) (Hoffman, J., dissenting)
(opining that tacit admission evidence that defendant remained silent after
police read a signed confession by a co-defendant and the defendant did not
____________________________________________
5
The Commonwealth’s argument overlooks that its position is proof that the
tacit admission was being used as self-incrimination evidence. Since
Appellant does not level a self-incrimination challenge, we are not faced with
reaching such a determination. But see Commonwealth ex rel. Staino v.
Cavell, 217 A.2d 824 (Pa.Super. 1966) (Hoffman, J., dissenting).
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speak, after being advised that he was not required to say anything, violated
both his right against self-incrimination and confrontation right.).6
In Brooks, supra, referenced by the Commonwealth, the
Pennsylvania Supreme Court ruled that a signed confession by Brooks’ co-
conspirator, Albert Wooding, which Brooks read and signed as a witness to
hearing Wooding’s oral confession, was admissible as “tacit acquiescence[.]”
Brooks, supra at 327. In so ruling, it rejected the defendant’s
Pennsylvania constitutional claim that this violated his right “to meet the
witnesses face to face.” Id. Prior to Brooks, in Vallone, supra, the
Pennsylvania Supreme Court noted that an “accusatory statement, being
hearsay, is not admissible as evidence in itself of the facts which it asserts,
but merely to show what the charges were to which defendant offered no
denial[.]” Vallone, supra at 890. Simply put, the evidence in question is
the reaction of the defendant and not the statement; therefore, the
confrontation clause was not implicated.
Similarly, in the companion cases of Rose, supra and Oreszak,
supra, the Pennsylvania High Court addressed the right to confront
witnesses where written statements of a co-conspirator were introduced
against the defendant. The Rose Court opined that the statement “was not
____________________________________________
6
The opinion in support of affirmance in Commonwealth ex rel. Staino v.
Cavell, 217 A.2d 824 (Pa.Super. 1966), is no longer sound. See
Commonwealth v. Dravecz, 227 A.2d 904 (Pa. 1967).
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introduced as the testimony of his accomplices, thereby depriving him of the
right of cross-examination, but it was offered as a confession by him in so
far as he admitted the facts stated in his presence by the other participants
in the crime, and explained his part in its perpetration.” Rose, supra at 18.
In Oreszak, the same evidence was challenged. Oreszak, however, was not
present when some of his co-defendants’ statements were made.
Nonetheless, police read the entire transcript of his accomplices’ statements
to him and he signed the joint statement. Setting aside that these cases
involved law enforcement, and their holdings are now invalid, in none of
those cases was there a tacit admission; rather, the defendants provided
signed confessions.
In Staino, supra, Judge Hoffman undertook a confrontation clause
analysis relative to a tacit admission in the face of police questioning.
There, five police officers accompanied Staino into a small room, where a
police captain advised him that he could remain silent and that anything he
said could be used against him at trial. Police then provided an oral
statement purportedly given by Robert Poulson implicating Staino in a
burglary. Staino remained silent, or said, “I have nothing to say.” Id. at
826. Later, police, after again advising him of his right to remain silent,
read him a signed statement by Poulson that set forth that Staino was
involved in the aforementioned burglary. Staino responded by saying, “I
have nothing to say” and remained silent. Id. At trial, these tacit
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admissions were admitted into evidence and Staino was convicted. Judge
Hoffman, posited, “The use of the tacit admission in this case was also
constitutionally defective because appellant was denied the protection of his
constitutional right of confrontation when the oral and written statements of
Robert Poulson were admitted into evidence.” Id. at 832. In support, he
relied on Douglas v. Alabama, 380 U.S. 415 (1965).
In Douglas, a co-defendant named Loyd had signed a confession
implicating Douglas in the shooting of the victim. When called at trial, Loyd
invoked his right against self-incrimination. The prosecutor was permitted to
read Loyd’s signed confession, although it was not introduced into evidence.
The Supreme Court found that the defendant’s inability to cross-examine
Loyd permitted the jury to impermissibly infer that Loyd’s statements had
been made and were true. Accordingly, it ruled that Douglas’ confrontation
clause right was infringed. In Staino, Judge Hoffman reasoned that the
reading of Poulson’s statement, though not evidence, “may lead a jury to
infer that the statement has been made and that it was true, especially since
the maker does not appear to deny the statement.” Id. at 832-833.7 The
opinion, however, was non-precedential.
____________________________________________
7
The Superior Court was evenly split; therefore, the lower court’s decision
was affirmed.
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Despite the serious erosion of the foundations for the tacit admission
rule, neither this Court nor our Supreme Court has held in a binding opinion
that it violates a defendant’s confrontation clause rights.8 Nonetheless, trial
counsel did seek to preclude the admission of this evidence. While trial
counsel did not object to the prosecutor’s closing argument relative to the
tacit admission, Appellant has not challenged that aspect of trial counsel’s
performance and the prosecutor’s argument was consistent with the trial
court’s earlier ruling. Trial counsel cannot be ineffective where he made an
argument to preclude the introduction of the tacit admission, especially
where preclusion would have been a change in the existing case law since no
law enforcement officials were involved. See Faraci, supra. Appellant’s
ineffectiveness issue does not entitle him to relief.
The penultimate claim Appellant advances on appeal is that trial
counsel was ineffective for neglecting to properly preserve or file an appeal
to the introduction of unrelated criminal actions and/or prejudicial testimony
relating to a separate robbery. The specific evidence contested on appeal
relates to testimony from Craig Walker. The trial court permitted Mr. Walker
____________________________________________
8
We are of the view that Chief Justice Maxey’s dissent in Commonwealth
v. Vallone, 32 A.2d 889 (Pa. 1943), offers persuasive reasoning, even
setting aside constitutional concerns, that the probative value of a tacit
admission is far exceeded by its prejudicial nature. In an appropriate case,
i.e., where the issue is developed and argued, we would urge our Supreme
Court to strongly consider reevaluating the continued viability of the rule.
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to testify that, while watching the news with his girlfriend, he saw a story
regarding a robbery at the Plymouth Meeting Mall. During the course of that
newscast, surveillance video depicting the assailant was shown. Mr. Walker
testified that the individual involved resembled Appellant’s son.
Appellant argues that this testimony was “irrelevant prejudicial
testimony[.]” Appellant’s brief at 26. He acknowledges that the trial court
provided a cautionary instruction, but maintains that the instruction was
insufficient. Appellant asserts that the instruction did not address his son’s
alleged actions and his son was considered a co-conspirator in the case.
Appellant admits that trial counsel did seek to preclude this evidence
pre-trial and objected at trial. Nonetheless, he submits that original
appellate counsel, who was also trial counsel, was ineffective in not
preserving the issue. The Commonwealth responds that, because trial
counsel did object and the court issued a cautionary instruction, no prejudice
exists.
Yet again Appellant has ignored that his direct appeal rights have been
reinstated and he is in the same position as if the prior direct appeal did not
occur. Since trial counsel not only litigated the issue pre-trial in an attempt
to preclude the evidence, but also objected to the testimony, he cannot be
ineffective. What remains, and what Appellant fails to properly argue, is an
assertion of trial court error. We will not develop Appellant’s claim for him.
Regardless, the trial court’s instruction ameliorated any harm. The court
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told the jury “that this particular incident that this witness testified to that
may or may not have occurred in Plymouth Meeting is in no way related to
this case, to this defendant, or any member of this defendant’s family.”
N.T., 11/21/02, at 178-179. The court continued,
This defendant had nothing whatsoever to do with this particular
incident that the witness spoke about. He says he saw it on TV
and who it may have reminded him about or what anything else
he told you about it is being permitted, but you should know that
this defendant had nothing to do at all whatsoever in any way
with that incident.
Id. at 179. Appellant’s claim is meritless.
The final issue Appellant levels on appeal is that trial counsel failed to
properly advise him regarding his right to testify at trial and therefore his
decision not to take the stand was not knowing, voluntary or intelligent.
Appellant contends that trial counsel erroneously informed him that, should
he testify, his two prior non-crimen falsi convictions for firearms violations
could be brought out against him. He also asserts that counsel incorrectly
advised him that the Commonwealth might introduce evidence related to his
arrest for the stolen car and drugs. Appellant maintains that absent this
advice, he would have elected to testify.
The Commonwealth counters that trial counsel testified at the PCRA
evidentiary hearing that he believed Appellant would not do well under
cross-examination. It adds that trial counsel testified that he believed
testimony from Appellant was unnecessary based on the cross-examination
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of the Commonwealth’s witnesses, and the presentation of one of his own
witnesses. The Commonwealth notes that trial counsel’s fears “were well
founded.” Commonwealth’s brief at 24. It highlights that Appellant’s PCRA
testimony involved claims that police fabricated his confession, which still did
not make him the shooter, and that he earned over $300,000 at the time of
the crime.
Trial counsel testified at the PCRA hearing, with respect to the firearms
convictions, that he informed Appellant that those convictions might not be
admissible. He further indicated that he also discussed with Appellant that
Appellant might not “be able to stand up on cross-examination[.]” N.T.,
9/27/07, at 48. Counsel also disputed that he instructed Appellant that
information related to the stolen car would be admissible. Specifically,
counsel testified that the theft case had been dismissed or withdrawn and he
did not think the Commonwealth “would have been fishing around with
that.” Id. at 49.
Contrary to Appellant’s claims, trial counsel did not testify that he
advised Appellant not to testify because his prior criminal history would be
admissible against him. Although trial counsel admitted that it was possible
that he discussed Appellant’s firearm convictions in conjunction with
discussing Appellant’s right to testify, he did not admit that he incorrectly
told Appellant that they would be admissible or instructed him not testify for
that reason. Trial counsel also disputed the suggestion that he informed
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Appellant that evidence of the stolen car and drug incident could be used
against him. Based on trial counsel’s PCRA testimony, we cannot agree with
Appellant that counsel provided erroneous legal advice that caused him to
forego his right to testify. Moreover, whether Appellant could withstand
vigorous cross-examination was a legitimate concern. Trial counsel was not
ineffective.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2015
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