Com. v. Watkins, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LEWIS T. WATKINS :
:
Appellant : No. 470 MDA 2020
Appeal from the PCRA Order Entered March 5, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006151-2016
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: JANUARY 20, 2021
Lewis T. Watkins appeals from the order that dismissed without a
hearing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
We vacate the order and remand for further proceedings.
This Court offered the following summary of the facts underlying
Appellant’s convictions:
[O]n April 17, 2012, Appellant was employed at Alcoa when he
was involved in an accident. Alcoa tested Appellant for drugs, and
he tested positive for marijuana and cocaine. As a result, Alcoa
sent Appellant to a pre-paid drug rehabilitation facility. As a
condition of entering the drug rehabilitation facility, Appellant
signed a release that prevented the facility from disclosing copies
of Appellant’s laboratory results, including urine tests, to Alcoa.
The facility, however, expelled Appellant on June 20, 2012,
because he failed to comply with the requirements for treatment.
The facility advised Alcoa that Appellant missed several treatment
sessions, exhibited signs of intoxication, and had two positive
urine tests. As a result, Alcoa fired Appellant on June 20, 2012.
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Subsequently, Appellant contacted Alcoa and requested
copies of his personnel and medical file, as well as copies of the
laboratory results. Alcoa provided Appellant’s personnel and
medical file but because of Appellant’s signed release, it never
possessed the laboratory results.
In 2015, the police charged Appellant with stalking Thomas
Holbert, one of Alcoa’s human resource managers. A trial was
held on September 26th and 27th, 2016, and Appellant was found
not guilty. . . .
Immediately following the not-guilty verdict in September
of 2016, Appellant began leaving numerous voicemails on
Holbert’s work mobile phone demanding Appellant’s full personnel
file, including the laboratory results. Over time, Appellant’s
voicemails became increasingly belligerent and intimidating, and
they included threats to personally appear at Holbert’s home and
workplace to obtain his personnel file and advice to Holbert about
how to improve the parking of his car at work. . . . The numerous
voicemails caused Holbert to change his phone number, install a
burglar alarm, close his blinds, and alter his daily routine.
Also in September and October of 2016, Appellant began
leaving “intimidating” voicemails to Tracey Hustad, one of Alcoa’s
human resources directors, requesting Alcoa to provide the
laboratory results. Hustad consistently responded that Alcoa
could not produce the results because it never had them. [A]ll
voicemails were forwarded to Alcoa security.
Brian Leadbetter, chief security officer for Alcoa, . . .
informed Appellant that Alcoa did not have the laboratory reports
at issue. On October 10, 2016, after verifying Appellant’s address
and email address, Alcoa sent a cease-and-desist letter
meticulously detailing Appellant’s behavior, enclosing another
copy of Appellant’s personnel and medical files, and again denying
any possession of any laboratory test results. Alcoa sent the files
via FedEx, but Appellant refused to sign and receive the package.
Alcoa reported Appellant’s activities to the police, and the police
arrested Appellant on October 24, 2016.
Commonwealth v. Watkins, 201 A.3d 824 (Pa.Super. 2018) (unpublished
memorandum at 2-4) (citations and footnotes omitted). Upon receiving
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evidence of the above, a jury convicted Appellant of stalking and terroristic
threats. The trial court sentenced Appellant to an aggregate term of three to
ten years of incarceration, and this Court affirmed the judgment of sentence
on direct appeal. See id.In March 2019, Appellant filed a timely pro se PCRA petition, and counsel
was appointed. Counsel filed an amended petition raising one claim of
ineffective assistance of trial counsel. Specifically, the amended petition
averred that trial counsel was ineffective in failing to seek to exclude as unduly
prejudicial the evidence of Appellant’s illegal drug activities and termination
by Alcoa upon his failure to complete rehabilitation, or to even request a
cautionary instruction to advise the jury of the limited purpose of its
introduction. See Amended PCRA Petition, 6/18/19, at 11 (citing Pa.SSJI
(Crim) § 3.081). Appellant noted that, in the Commonwealth’s pretrial motion
to introduce evidence of Appellant’s cocaine and marijuana use and the reason
for his termination, even it acknowledged “an appropriate limiting instruction”
may be warranted. Id. at 11-12 (quoting Notice of Intention to Introduce
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1 The standard suggested jury instruction provides:
This evidence is before you for a limited purpose, that is, for the
purpose of tending to [give specifics]. This evidence must not be
considered by you in any way other than for the purpose I just
stated. You must not regard this evidence as showing that the
defendant is a person of bad character or criminal tendencies from
which you might be inclined to infer guilt.
Pa. SSJI (Crim) §3.08.
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Evidence of Other Crimes, Wrongs or Acts, 6/19/17, at ¶ 8). Yet, Appellant
complained, counsel did not file a motion in limine to exclude the evidence as
unduly prejudicial, did not object to its admission, did not seek a limiting
instruction before or immediately after it was admitted, and did not seek a
limiting instruction in the final jury charge. Id. at 12. Additionally, Appellant’s
petition alleged that trial counsel had no reasonable basis for failing to take
any of those actions, and that he was prejudiced because his prior bad acts
caused the jury to infer that he was a man of criminal tendencies and acted
in accordance therewith. Id. at 12-13. Appellant further requested an
evidentiary hearing to develop a record of counsel’s failure to act, and listed
trial counsel as a witness. Id. at 14-15.
The Commonwealth filed an answer to the amended petition contending
that trial counsel had not been ineffective. The Commonwealth maintained
that the information was admissible because it was necessary to provide the
jury with context and an understanding of the development of events. See
Answer to Amended Petition, 9/3/19, at 5. Further, the Commonwealth
suggested that Appellant suffered no prejudice--since the other bad acts about
which the jury heard “looked nothing like the crimes for which [Appellant] was
charged and tried,” it would have reached the same verdict regardless. Id.
at 6.
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The PCRA court issued notice of its intent to dismiss Appellant’s petition
without a hearing pursuant to Pa.R.Crim.P. 907.2 Following the resolution of
some apparent filing irregularities, the PCRA court dismissed the petition by
order entered March 5, 2020.3 Appellant filed a timely notice of appeal. The
PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal, but did submit its prior opinion to satisfy its
obligation under Pa.R.A.P. 1925(a).
Appellant presents the following issue for our review:
At [Appellant]’s trial, the Commonwealth admitted evidence of his
prior bad acts to tell the complete story. Specifically, it admitted
evidence that he failed several drug tests and was unsuccessfully
discharged from treatment. His trial counsel did not object or
request a limiting instruction. The PCRA court dismissed the
related ineffectiveness claim without a hearing because the
evidence was admissible. Should this Court remand for a hearing?
Appellant’s brief at 4.
We begin with a review of the pertinent legal principles. “The standard
of review of an order dismissing a PCRA petition is whether that determination
is supported by the evidence of record and is free of legal error.”
Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa.Super. 2017). “[A] PCRA
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2The notice indicates that the reasons for dismissal can be found in its January
9, 2020 opinion; however, the opinion of that date contained in the certified
record pertains to a different case entirely. The PCRA court subsequently
corrected the error and this Court received the proper opinion.
3 The order is dated February 4, 2020, but the docket reflects service of the
order on March 5, 2020.
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court has discretion to dismiss a PCRA petition without a hearing if the court
is satisfied that there are no genuine issues concerning any material fact; that
the defendant is not entitled to post-conviction collateral relief; and that no
legitimate purpose would be served by further proceedings.”
Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (internal
quotation marks omitted). Further, “[i]t is an appellant’s burden to persuade
us that the PCRA court erred and that relief is due.” Commonwealth v.
Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (internal quotation marks
omitted).
Counsel is presumed to be effective, and a PCRA petitioner bears the
burden of proving otherwise. See, e.g., Commonwealth v. Becker, 192
A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must plead and
prove: “(1) the underlying legal claim is of arguable merit; (2) counsel’s action
or inaction lacked any objectively reasonable basis designed to effectuate his
client’s interest; and (3) prejudice, to the effect that there was a reasonable
probability of a different outcome at trial if not for counsel’s error.”
Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020) (internal
quotation marks omitted). The failure to establish any prong is fatal to the
claim. Id. at 15.
As for the arguable merit of Appellant’s claim, we observe that
evidence of a defendant’s prior criminal activity is inadmissible to
demonstrate his bad character or criminal propensity. The same
evidence may be admissible for various legitimate purposes,
however, provided that its probative value outweighs the
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prejudicial effect likely to result from its admission, and an
appropriate limiting instruction is given.
Commonwealth v. Paddy, 800 A.2d 294, 307 (Pa. 2002) (citations omitted).
See also Pa.R.E. 404(b). One such legitimate purpose “is where such
evidence was part of the chain or sequence of events which became part of
the history of the case and formed part of the natural development of the
facts.” Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988).
This special circumstance, sometimes referred to as the “res
gestae” exception to the general proscription against evidence of
other crimes, is also known as the “complete story” rationale, i.e.,
evidence of other criminal acts is admissible “to complete the story
of the crime on trial by proving its immediate context of
happenings near in time and place.”
Id. (citations omitted).
The PCRA court dismissed Appellant’s petition without a hearing because
it determined Appellant’s claim lacked arguable merit. It explained as follows:
[T]he instances of prior bad acts discussed in [Appellant]’s
amended PCRA petition were necessary to provide the jury with
the history and natural development of the events leading to the
crimes of which the [Appellant] was charged and convicted. . . .
[T]he jury needed context as to why [Appellant] was fired from
his job and why [he] was harassing employees of the company for
which he used to work. Therefore, because the testimony
discussing [Appellant]’s prior bad acts described in the amended
PCRA petition . . . was admissible and not merely to prejudice
[Appellant], [his] claim lacks merit and thus trial counsel was not
ineffective for failing to object, seek a curative instruction, file a
motion in limine and/or seek a mistrial and a limiting instruction
during the final jury charge.
Trial Court Opinion, 1/9/20, at 5 (unnecessary capitalization omitted).
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Appellant does not pursue in this Court his argument that counsel should
have sought to exclude the res gestae evidence. However, he observes that
the PCRA court “sidestepped the question of whether counsel was ineffective
for failing to request a limiting instruction” and contends that the fact that the
evidence was admissible does not mean an instruction was unnecessary.
Appellant’s brief at 12. He maintains that the PCRA court should have held a
hearing on the claim. Specifically, he argues that the claim concerning
counsel’s failure to request a limiting instruction has arguable merit, noting
that until recently, our Supreme Court had indicated such instructions were
mandatory when Rule 404(b) evidence was admitted, and that even now the
High Court has recognized that they are sometimes necessary. Id. at 9-10
(comparing Commonwealth v. Claypool, 495 A.2d 176, 179 (Pa. 1985),
with Commonwealth v. Reid, 99 A.3d 427, 451 (Pa. 2014)).
Appellant further contends that his petition presented issues of material
fact as to the reasonable basis and prejudice prongs of his claim. He cites the
averments in his petition that counsel had no reasonable basis for declining to
request the instruction, and the lack of any response to those allegations by
the Commonwealth. Id. at 10. Finally, Appellant presents the following
argument as to prejudice:
The absence of a limiting instruction calls the outcome into
question. The exact reason for limiting instructions generally and
Suggested Instruction 3.08, specifically, is to defuse the effect of
admissible but nevertheless prejudicial evidence. . . . The text of
the instruction makes clear the purpose of that evidence and
admonishes the jury that it “must not regard [the] evidence as
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showing that the defendant is a person of bad character or
criminal tendencies from which you might be inclined to infer
guilt.” Pa. SSJI (Crim) 3.08. Because there is a natural tendency
for a jury to use prior bad act evidence for propensity, a limiting
instruction would have been appropriate.
The prejudicial effect of prior-bad-acts evidence is so strong
that it would be improper to assume that absence of a limiting
instruction did not affect the outcome.
Id. at 11. While Appellant acknowledges that precedent no longer mandates
a limiting instruction in all instances, he states that our Supreme Court “has
not waivered on [recognizing] the potential prejudicial effect of prior-bad-acts
evidence.” Id. at 12.
The Commonwealth’s position on appeal is that the other-bad-acts
evidence was properly admitted to complete the story of the crime, and that
the trial court, in its pretrial ruling permitting its admission, properly
concluded that it was not unduly prejudicial. See Commonwealth’s brief at
10-11. Assuming arguendo that a limiting instruction should have
accompanied the admission of the evidence, the Commonwealth suggests that
it does not automatically entitle Appellant to relief. Since there was no
similarity between the prior bad acts and the crimes for which Appellant was
tried, the Commonwealth maintains that there is no reasonable probability
that the outcome would have been different. Id. at 13-14.
We agree with Appellant that the PCRA court abused its discretion in
dismissing for lack of arguable merit Appellant’s claim that counsel rendered
constitutionally-deficient assistance by failing to request a limiting instruction.
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While its ruling that there was no arguable merit to the claim that counsel
should have objected to its admission for any purpose is sound, there is legal
support for Appellant’s contention that a cautionary instruction was
warranted. See, e.g., Commonwealth v. Webb, 236 A.3d 1170, 1179
(Pa.Super. 2020) (“Where evidence of prior bad acts is admitted, the
defendant is entitled to a jury instruction that the evidence is admissible only
for a limited purpose.”). Hence, Appellant satisfied the arguable-merit prong
of his cautionary-instruction claim.
However, that does not end our inquiry because we may affirm a PCRA
court’s decision for any reason apparent from the record. See, e.g.,
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). As
indicated above, Appellant’s failure to satisfy any element of the
ineffectiveness test defeats his claim. See Selenski, supra at 15.
Accordingly, we examine the remaining prongs of the test.
The record is devoid of counsel’s reasons for opting to forgo a request
for a limiting instruction. Appellant averred that there was no reasonable
basis for the omission, but the PCRA court did not permit Appellant to develop
a record on the issue at a hearing. As such, we are unable to conclude that
affirmance is warranted based upon the existence of a reasonable basis for
counsel’s chosen course. See, e.g., Commonwealth v. Hughes, 865 A.2d
761, 799 (Pa. 2004) (explaining that it is not appropriate for an appellate
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court to attempt to discern the basis for counsel’s decisions when the PCRA
court did not hold a hearing to allow counsel to explain his reasoning).
As for the prejudice element of Appellant’s claim, we reiterate that “[a]
PCRA petitioner establishes prejudice by demonstrating that counsel’s chosen
course of action had an adverse effect on the outcome of the proceedings.
. . . A criminal defendant alleging prejudice must show that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Commonwealth v. Hopkins, 231 A.3d 855, 875-76 (Pa.Super.
2020) (cleaned up).
“Our courts have long recognized that evidence of prior criminal acts
has the potential for misunderstanding on the part of the jury.”
Commonwealth v. Page, 965 A.2d 1212, 1221 (Pa.Super. 2009). However,
this Court has expounded as follows upon the fluctuating amount of prejudice
necessary to warrant relief:
The strength of the prosecution’s case from the original
proceeding is a vital part of the reviewing court’s inquiry. A verdict
or conclusion only weakly supported by the record is more likely
to have been affected by defense counsel’s errors than one with
overwhelming record support. Moreover, the ultimate focus of
inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged. The court should be concerned
with whether the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process that our system
counts on to produce just results.
Commonwealth v. Johnson, 236 A.3d 63, 69 (Pa.Super. 2020) (en banc)
(cleaned up).
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The PCRA court, which also presided over Appellant’s trial, is in the best
position to assess the strength of the Commonwealth’s case and whether a
limiting instruction could have impacted the jury’s assessment of the evidence
against Appellant. Yet it offered no analysis of the prejudice prong of
Appellant’s limiting-instruction claim. We decline to decide in the first
instance, on a cold record, whether Appellant is capable of proving that he
was prejudiced by counsel’s omission.
For these reasons, we conclude that the PCRA court abused its discretion
in dismissing Appellant’s petition without a hearing when it did not consider
or address his claim that counsel rendered ineffective assistance in failing to
request a limiting or cautionary instruction regarding the Rule 404(b) evidence
offered by the Commonwealth. Therefore, we vacate the March 5, 2020 order
dismissing his petition. We remand for the PCRA court to consider the three
prongs of that claim, either issuing a new Pa.R.Crim.P. 907 notice explaining
why no hearing is necessary to reject the claim or scheduling a hearing to
resolve the matter.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/20/2021
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