Com. v. Hayes, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ANTHONY KAREEM HAYES,
Appellee No. 594 MDA 2015
Appeal from the PCRA Order March 24, 2015
in the Court of Common Pleas of York County
Criminal Division at No.: CP-67-CR-0007258-2009
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 10, 2015
The Commonwealth of Pennsylvania appeals from the court’s order
granting in part the petition filed by Appellee, Anthony Kareem Hayes,
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546, and ordering a new trial. We affirm.
This case stems from the September 26, 2009 stabbing-death of
Kenneth Ramos. A previous panel of this Court summarized the underlying
facts as follows:
[Appellee], Jamell McMillan and the decedent were
together during a party at a certain home. At some point, they
left the party, apparently to obtain more beer, but then returned
to the aforesaid residence. McMillan would later testify that,
when the three men returned to the home, he exited their car
and walked towards the front of the house. While he did so,
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*
Retired Senior Judge assigned to the Superior Court.
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[Appellee] and the decedent alighted from the vehicle and
argued. According to McMillan, the decedent punched
[Appellee], knocking him down. Thereafter, the two engaged in
a physical fight until the decedent dropped to the ground.
[Appellee] told McMillan to come to the vehicle, and the
latter did so. When McMillan entered the car, he saw that
[Appellee] was holding a knife in his hand. [Appellee] then said
that he had killed the decedent.
During the altercation between [Appellee] and the
decedent, a witness named Tessa Hollinger was in a nearby
parked car. She saw two men arguing and fighting. Eventually,
she saw one of the two fall to the ground. She could not identify
either person in the fight.
Two other individuals, Michael Smith and David Floyd,
would eventually testify that [Appellee] told them he had
stabbed the decedent.
At trial, a forensic pathologist would testify that the
decedent died from a stab wound that cut his spinal cord and
brainstem. The pathologist opined that the death was a
homicide.
[Appellee] was arrested and charged with multiple
offenses. . . .
(Commonwealth v. Hayes, No. 554 MDA 2012, unpublished memorandum
at *1-*2 (Pa. Super. filed Dec. 5, 2012)).
On October 18, 2011, the Commonwealth filed a pre-trial motion in
limine seeking to introduce evidence of Appellee’s prior gang activity as
motive for the killing. See Pa.R.E. 404(b)(1)-(2).1 The trial court granted
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1
Under Pennsylvania Rule of Evidence 404(b), “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with
the character.” Pa.R.E. 404(b)(1). However, “[t]his evidence may be
(Footnote Continued Next Page)
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the motion and Appellee proceeded to a jury trial on December 12, 2011.
The Commonwealth’s theory of the case was based on an intra-gang rivalry
between Appellee and the victim. (See N.T. Trial, 12/12/11, at 87; N.T.
Trial, 12/14/11, at 392, 395, 401-02). The testimony reflected that they
were members of the “Valentine” gang, a local chapter of the larger “Bloods”
gang, and that the victim was the leader of the Valentines. (N.T. Trial,
12/12/11, at 211, 261; see also id. at 209-15, 261-63). The
Commonwealth presented evidence that Appellee may have killed the victim
in order to take control of the gang. (See id. at 139, 206, 263, 283). At
the conclusion of trial, defense counsel did not request a limiting instruction
regarding the gang references, and the court did not give the applicable
standard jury instruction. (See PCRA Court Opinion, 3/24/14, at 14) (citing
Pa.SSJI Crim. 3.08).2
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(Footnote Continued)
admissible for another purpose, such as proving motive[.]” Pa.R.E.
404(b)(2).
2
Instruction 3.08 states in pertinent part: “This evidence is before you for a
limited purpose, that is, for the purpose of tending to [show motive]. 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(2).
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The jury acquitted Appellee of first-degree murder and convicted him
of third-degree murder. On February 2, 2012, the trial court sentenced him
to a term of not less than twenty nor more than forty years’ incarceration.
Appellee filed a post-sentence motion, which the trial court denied. This
Court affirmed the judgment of sentence on December 5, 2012. (See
Commonwealth v. Hayes, 64 A.3d 10 (Pa. Super. 2012)). Our Supreme
Court denied Appellee’s petition for allowance of appeal on June 27, 2013.
(See Commonwealth v. Hayes, 70 A.3d 809 (Pa. 2013)).
On October 10, 2013, Appellee filed a pro se “Petitio L’ Breve d’
Habeas Corpus Ad Subjiciendum,” which the PCRA court treated as a PCRA
petition. The court appointed counsel, who filed amended PCRA petitions,
raising several allegations of trial counsel ineffectiveness. Material to the
instant appeal is the claim that counsel was ineffective for failing to request
a limiting instruction regarding Appellee’s gang activities. The court heard
testimony on this issue on January 29, 2015. At the hearing, trial counsel
testified:
Q. Did you have any discussions with [Appellee] about
any instructions on gang activity?
A. I don’t believe so. We talked a lot about the gang
activity because that came up. [The Commonwealth] had filed,
you know, to have that admitted, and we fought pretty hard
against that one, but [the trial court] denied us and allowed that
evidence in, and I know one of the complaints here is me not
asking for an instruction on, you know, motive and gang activity,
and my recollection is, you know, the standard instruction is
enough, and I believe [the trial court] gave it where the
standard instruction, the Commonwealth need not prove motive,
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but if they do, you know, you are allowed to consider it, but I
didn’t request anything specific with regard to that.
Q. So in your opinion, the standard instruction as given by
[the trial court] was sufficient to cover the issue?
A. Yeah, and I mean the gang activity, that was—that was
a tough issue to deal with in the trial, and we don’t want to keep
bringing attention to it, especially what happened with the one
juror and the hearts on the driveway, but, no, I did not request
anything specific with regard to that.
* * *
Q. Regarding the limit[ing] instruction on the gang testimony,
you did not request that to the jury, is that correct, in a charging
instruction?
A. With regard to motive?
Q. With regard to there was testimony regarding gang activity
and what purpose that could be used for to the jury as not to
infer anything negative as to that gang activity and testimony
other than the intended purpose for which it was used, and in
this case, I think it was motive.
A. That’s what the gang activity was solely related to was
motive, and I know there is a standard instruction with regard to
motive, and I’m 99 percent sure [the trial court] would have
given that, so, no, I guess [the] simple answer is no, I didn’t
request any additional instruction specific to that issue.
Q. Specific to the gang issue?
A. Yes.
Q. And just so the record is clear specific to the gang issue, that
the jury should not consider that for any other purpose other
than motive, that instruction wasn’t given—
A. No.
Q. —or requested by you, is that correct?
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A. No, because during the course, too, of jury deliberations, the
gang issue was all over the place because the one juror came in
sobbing the next morning. I asked for a mistrial because she
had valentines painted on her driveway, and it was just an
overriding theme with regard to everything.
(N.T. PCRA Hearing, 1/29/15, at 29-30, 36-37).
On March 24, 2015, the PCRA court entered its order and supporting
opinion denying Appellee’s petition in part and granting it in part.
Specifically, the court denied the PCRA petition as it related to all issues
except trial counsel ineffectiveness for failure to request a limiting
instruction regarding Appellee’s gang activity. (See Order, 3/24/15, at 1).
The court ordered a new trial on this basis. (See id.). This timely appeal
followed.3
The Commonwealth raises one issue for our review:
1. Whether the PCRA court erred in granting [Appellee] a new
trial where [t]rial [c]ounsel had a reasonable basis for not
requesting a jury instruction regarding gang activity and where
[Appellee] was not prejudiced by [counsel’s] actions?
(Commonwealth’s Brief, at 4).
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of the
PCRA court’s hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve questions
of fact and law, we employ a mixed standard of review. We
defer to the PCRA court’s factual findings and credibility
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3
Pursuant to the PCRA court’s order, the Commonwealth filed a timely
concise statement of errors complained of on appeal on April 10, 2015. See
Pa.R.A.P. 1925(b). The PCRA court filed an opinion on April 15, 2015, in
which it relied on its prior opinion entered March 24, 2015. See Pa.R.A.P.
1925(a).
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determinations supported by the record. In contrast, we review
the PCRA court’s legal conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015) (en banc) (citations and quotation marks omitted).
On appeal, the Commonwealth contends that the PCRA court erred in
determining that trial counsel rendered ineffective assistance by failing to
request a limiting instruction regarding Appellee’s gang affiliation. (See
Commonwealth’s Brief, at 12-20). It argues that counsel’s strategy was
reasonably designed to advance Appellee’s interest where she testified the
standard jury instruction sufficiently covered the topic. (See id. at 16). The
Commonwealth maintains that counsel’s strategy was also reasonable where
an instruction would have drawn additional attention to the gang evidence,
which she wanted to minimize. (See id.). The Commonwealth further
argues that Appellee was not prejudiced by counsel’s failure to request an
instruction. (See id. at 18). We disagree.
Initially, we observe that Appellee was the prevailing party at the
PCRA level. “Thus, we must review the record in a light most favorable to
him, not the Commonwealth.” Commonwealth v. Stewart, 84 A.3d 701,
706 (Pa. Super. 2013), appeal denied, 93 A.3d 463 (Pa. 2014).
To prevail on a petition for PCRA relief, a petitioner must plead and
prove, by a preponderance of the evidence, that his conviction or sentence
resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A.
§ 9543(a)(2). These circumstances include ineffectiveness of counsel, which
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“so undermined the truth-determining process that no reliable adjudication
of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
“Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Commonwealth v. Walker, 110 A.3d 1000,
1003 (Pa. Super. 2015) (citation omitted).
To be eligible for relief based on a claim of ineffective
assistance of counsel, a PCRA petitioner must demonstrate, by a
preponderance of the evidence, that (1) the underlying claim is
of arguable merit; (2) no reasonable basis existed for counsel’s
action or omission; and (3) there is a reasonable probability that
the result of the proceeding would have been different absent
such error. . . .
Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013), appeal
denied, 74 A.3d 1030 (Pa. 2013) (citation omitted).
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. Whether the facts rise
to the level of arguable merit is a legal determination.
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. 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.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
Stewart, supra at 707 (citations and quotation marks omitted).
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“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 .
. . an appropriate limiting instruction is given.” Commonwealth v.
Collins, 70 A.3d 1245, 1252 (Pa. Super. 2013), appeal denied, 80 A.3d 774(Pa. 2013) (citation omitted; emphasis addded).
Evidence of a defendant’s prior bad acts is generally
inadmissible, and where such evidence is admitted, a defendant
is entitled to a jury instruction that the evidence is admissible
only for a limited purpose. Where evidence of a defendant’s
prior bad acts is merely a fleeting or vague reference, however,
trial counsel might reasonably decline to object or request a
limiting instruction to avoid drawing attention to a reference that
might have gone relatively unnoticed by the jury.
Commonwealth v. Hutchinson, 811 A.2d 556, 561-62 (Pa. 2002), cert.
denied, 540 U.S. 858 (2003) (citations omitted; emphasis added).
Instructive to the issue before us is our Supreme Court’s decision in
Commonwealth v. Billa, 555 A.2d 835 (Pa. 1989). In Billa, the
Commonwealth introduced evidence of the circumstances of a prior offense
committed by the defendant to show his intent and motive in murdering the
victim. See id. at 838-39. The trial court failed to give a jury instruction
explaining the limited purpose for which the evidence was relevant and
admissible, and trial counsel did not request that the court give such
instruction. See id. at 841-42. Our Supreme Court determined that trial
counsel was constitutionally ineffective in failing to request an appropriate
limiting instruction and that a new trial was necessary. See id. at 843.
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Turning to the instant case, it is apparent that Appellee’s underlying
claim has arguable merit, where our case law establishes that he was
entitled to a limiting instruction on the prior bad acts evidence. See
Hutchinson, supra at 561-62; Collins, supra at 1252; Billa, supra at
842.
Further, a review of PCRA proceedings shows that trial counsel lacked
a reasonable basis for failing to request a limiting instruction. First, counsel
explained that she did not request a specific instruction because she believed
the trial court’s standard instruction adequately addressed the issue of the
gang evidence. (See N.T. PCRA Hearing, 1/29/15, at 29-30, 36-37).
However, as discussed above, the record reflects that the court did not give
the standard Rule 404(b) instruction. (See N.T. Trial, 12/14/11, at 403-
427; PCRA Ct. Op., at 10, 14).
Second, counsel testified that she did not request a limiting instruction
because she did not want to draw the jury’s attention to the gang issue.
(See N.T. PCRA Hearing, 1/29/15, at 30, 37). However, as the
Commonwealth acknowledges, defense counsel herself brought the gang
issue to the jury’s attention during closing argument. (See Commonwealth’s
Brief, at 15-16). In fact, her first comments to the jury during closing were
on this topic. (See N.T. Trial, 12/14/11, at 378-39). Further, while we
recognize that counsel might reasonably decline to request a limiting
instruction to avoid drawing attention to a fleeting or vague reference that
might have gone unnoticed by the jury, see Hutchinson, supra at 561-62,
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the gang references in the instant case cannot be characterized as fleeting
or vague. By counsel’s own description, “the gang issue was all over the
place” and “an overriding theme with regard to everything.” (N.T. PCRA
Hearing, 1/29/15, at 37). The PCRA court noted ninety-one gang references
in the trial notes of testimony, and the jurors were questioned about their
feelings regarding gang membership during voir dire. (See Trial Ct. Op., at
13; N.T. Trial, 12/12/11, at 33-34). Thus, the jury’s attention had already
been focused on the gang issue, and counsel’s failure to request an
instruction limiting its consideration of this damaging evidence lacked a
reasonable basis. See Billa, supra at 843.
Finally, Appellee was prejudiced by counsel’s error where the gang
evidence was admissible only for the limited purpose of establishing motive,
and the court did not caution the jury against regarding it as showing
Appellee is a person of bad character or that he has criminal tendencies.
Given the extensive nature of the references, the omission of a limiting
instruction is sufficient to undermine confidence in the trial’s outcome. See
Stewart, supra at 707; Billa, supra at 842-43.
In sum, upon review, we discern no error in the PCRA court’s
determination that counsel was ineffective for failing to request a limiting
instruction regarding the gang evidence. See Reyes-Rodriguez, supra at
779. Accordingly, we affirm the order of the PCRA court.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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