Com. v. Herriott, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARTELL HERRIOTT :
:
Appellant : No. 1360 WDA 2017
Appeal from the PCRA Order August 18, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010556-2011
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MAY 10, 2018
Martell Herriott (Appellant) appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
In 2012, a jury convicted Appellant of first-degree murder and carrying
a firearm without a license.1 The trial court sentenced Appellant to life in
prison without parole for the first-degree murder conviction, and imposed no
further penalty on the firearms conviction.
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1 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1).
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Appellant filed a direct appeal challenging, inter alia, the trial court’s
admission of evidence regarding two items unrelated to the murder: a firearm
Appellant had discarded during a police chase, and an extended magazine
subsequently recovered along the route of the chase (other crimes evidence).
A panel of this Court affirmed Appellant’s judgment of sentence, and our
Supreme Court denied Appellant’s petition for allowance of appeal on April 12,
2016. See Commonwealth v. Herriott, 358 WDA 2013 (Pa. Super. Sept.
23, 2014) (unpublished memorandum), appeal denied, 136 A.3d 979 (Pa.
2016).
On December 1, 2016, Appellant filed a timely pro se PCRA petition.
The PCRA court, who also sat as the trial court, appointed counsel. Appellant
subsequently filed a counseled, amended PCRA petition that challenged the
effectiveness of trial counsel for failure to object to the trial court’s jury
instruction on the other crimes evidence. On August 18, 2017, the PCRA
court convened a hearing. Attorney Robert Foreman (Trial Counsel) appeared
as the only witness. Trial Counsel’s testimony included the following
responses to questioning by the Commonwealth:
Q. [I]f there wasn’t a jury instruction, the jury would be left to
question how they would treat this evidence, right?
A. That’s fair.
Q. So, you would be letting the jury speculate about how to
treat this evidence, right, if there was no instruction?
A. That’s correct.
Q. And one of the ways that the jury could speculate would be
against your client, right?
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A. Yes.
Q. So, you would rather the jury speculate to the detriment of
your client th[a]n request this specific jury instruction,
correct?
A. No. I would not want the jury to speculate rather than follow
the law if that’s the question as I understand it.
* * *
Q. So, do you think that the instruction was proper or not
proper?
A. As the evidence came in, it is my opinion for whatever it’s
worth that it was proper to give an instruction limiting the
evaluation of that evidence to what the [trial court] had
already ruled was the proper and limited purpose.
Q. So, that’s why you didn’t object, right?
A. Yes.
N.T., 8/18/17, at 13-15.
Appellant’s counsel questioned Trial Counsel:
Q. So just to clarify, you had argued pre-trial, during the trial, that
the evidence should not come in, correct?
A. Yes.
Q. And at the point of the jury instruction, you are saying that you
didn’t object to it because it was a limiting instruction with regard
to evidence that you argued should not come in at all?
A. That’s correct.
Id. at 15.
The PCRA court then referenced Appellant’s jury trial, including Trial
Counsel’s objection to the instruction during the charging conference and his
subsequent negative response when asked if he had any exceptions to the
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charge prior to the jury’s release for deliberation. Id. at 18-19. The PCRA
court asked Trial Counsel:
Q. And the option you chose was to allow the [trial court] to
g[i]ve the limiting instruction that [it] gave?
A. Yes, sir.
Q. And you made that decision as a tactical decision as opposed
to telling the [trial court] to give no instruction for concern that
the jury may use the evidence improperly?
A. Yes, sir.
Id. at 20-21. The PCRA court ultimately denied Appellant’s petition from the
bench and issued an order that same day. Id. at 34.
Appellant filed a timely appeal and complied with the PCRA court’s order
to file a concise statement of errors complained of on appeal pursuant to Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure. The PCRA court
then issued a Rule 1925(a) opinion.
On appeal, Appellant presents two issues for review:
I. ARE [APPELLANT’S] CLAIMS FOR RELIEF PROPERLY
COGNIZABLE UNDER THE POST-CONVICTION RELIEF ACT?
II. DID THE [PCRA] COURT ABUSE ITS DISCRETION IN DENYING
THE PCRA PETITION, INSOFAR AS [APPELLANT] ESTABLISHED
THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO THE INADEQUATE JURY INSTRUCTION REGARDING
THE OTHER CRIMES EVIDENCE?
Appellant’s Brief at 4.
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Appellant’s issues are interrelated.2 However, before we proceed to a
merits analysis, we recognize the Commonwealth’s assertion that the law of
the case is “binding on subsequent decisions of this Court between these
parties in this case.” Commonwealth Brief at 28-29, citing Commonwealth
v. Tilghman, 673 A.2d 898, 903 n.8 (Pa. 1996) (“‘It is hornbook law that
issues decided by an appellate court on a prior appeal between the same
parties become the law of the case and will not be reconsidered’ on a
subsequent appeal on another phase of the same case.”).
This Court, in reviewing Appellant’s direct appeal, stated:
Appellant claims that the trial court abused its discretion in
admitting evidence pertaining to other crimes which showed that,
approximately one month after the victim’s shooting, Appellant
discarded a loaded gun and an extended magazine during a police
chase. Appellant argues that because the gun was not used in the
shooting, and because it was not proven that the magazine was
used in the shooting, this evidence was irrelevant and prejudicial
and therefore should not have been admitted at trial.
Herriott, 358 WDA 2013, at *7. We then cited prevailing legal authority and
concluded that the trial court did not abuse its discretion in admitting the other
crimes evidence. We explained:
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2 In his concise statement, Appellant presented only one issue – the second
issue stated in his appellate brief and quoted above. See Appellant’s Rule
1925(b) Statement, 10/11/17, at 2-3 (unnumbered). Pa.R.A.P.
1925(b)(4)(v) provides that “[e]ach error identified in the Statement will be
deemed to include every subsidiary issue contained therein which was raised
in the trial court . . .” The PCRA court addressed the one issue of Trial
Counsel’s alleged ineffectiveness for failing to object to the jury instruction.
PCRA Court Opinion, 11/16/17, at 5.
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[I]t is evident that Appellant is not entitled to relief on his [other
crimes] claim. As the trial court observed, the discarded gun and
magazines were relevant to connect Appellant with the crimes at
issue because: (1) the Commonwealth’s expert testified that the
victim was shot with a handgun of the same caliber; and, (2) the
recovered magazine housed the same number of rounds that
would have been left after a 15–round volley (the number of shell
casings recovered at the crime scene one month earlier).
Furthermore, no unfair prejudice emanated from the
admission of this evidence since the trial court instructed
the jury that the proof should be considered for
identification purposes only and that the gun was not used
to kill the victim.
Id. at *6 (emphasis added).
While mindful of the foregoing, we also recognize that we are “reviewing
the instant issue under a different jurisprudential framework.”
Commonwealth v. Domek, 167 A.3d 761, 766 (Pa. Super. 2017). In
Domek, we declined to apply the law of the case in a PCRA appeal, explaining:
We observe that this Court’s previous ruling, that the evidence
proffered by the Commonwealth was sufficient to support
Appellant’s conviction, does not constitute the law of the case for
our present purposes. On direct appeal, our standard of review
required us to view the evidence in the light most favorable to the
Commonwealth as verdict winner. We are not guided by that
principle herein, since our assessment is centered upon
considering the strength of the evidence presented against the
prejudice caused by counsel’s ineffectiveness.
Id. (citations omitted).
Here, we are similarly considering Appellant’s collateral assertion of
counsel’s ineffectiveness. Appellant argues that Trial Counsel was ineffective
for failing to preserve an objection to the trial court’s limiting instruction on
other crimes evidence. Specifically, Appellant contends that Trial Counsel
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“could not have had a reasonable basis for not timely objecting to the
inappropriate permissive inferences contained in the charge,” and that “[b]ut
for counsel’s failure to preserve his objection to the court’s unreasonable jury
instructions, [Appellant] would have been acquitted, or adjudged guilty of a
lesser degree of homicide.” Appellant’s Brief at 23-25.
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
A claim for ineffective assistance of counsel is cognizable under the
PCRA pursuant to 42 Pa.C.S.A. § 9543(a)(2)(ii). In order to obtain relief on
an ineffectiveness claim:
a petitioner must establish: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s
actions or failure to act; and (3) petitioner suffered
prejudice as a result of counsel’s error such that there is a
reasonable probability that the result of the proceeding
would have been different absent such error.
Trial counsel is presumed to be effective, and Appellant bears the
burden of pleading and proving each of the three factors by a
preponderance of the evidence.
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Commonwealth v. Barndt, 74 A.3d 185, 191 (Pa. Super. 2013) (citations
omitted). “A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead, if a claim fails
under any necessary element of the ineffectiveness test, the court may
proceed to that element first.” Commonwealth v. Tharp, 101 A.3d 736,
747 (Pa. 2014) (citations omitted).
Generally, counsel’s assistance is deemed constitutionally
effective if he chose a particular course of conduct that had
some reasonable basis designed to effectuate his client’s
interests. Where matters of strategy and tactics are concerned,
a finding that a chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued.
Commonwealth v. Spotz, 84 A.3d 294, 311–12 (Pa. 2014) (citations and
quotations omitted).
In order to preserve a challenge to a particular jury instruction:
[a] specific and timely objection must be made . . . Failure to do
so results in waiver. Generally, a defendant waives subsequent
challenges to the propriety of the jury charge on appeal if he
responds in the negative when the court asks whether additions
or corrections to a jury charge are necessary.
Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (citations
omitted); see also Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super.
2014) (waiver existed even though defendant objected to instruction at the
charging conference); Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(c).
Here, the PCRA court determined:
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[Trial Counsel] cited a reasonable basis for not objecting to the
instruction after the [trial court] charged the jury. [Trial counsel]
made a tactical decision and chose the option to allow the [trial
court] to give a limiting instruction so that the jury would be given
some guidance as to how the other crimes evidence should be
properly used as opposed to no instruction at all.
PCRA Court Opinion, 11/16/17, at 18. The PCRA court concluded that Trial
Counsel “chose the option that would be least harmful to his client, the
limit[ing] instruction.” Id. at 19.
Based on the foregoing, we discern no error in the PCRA court’s
conclusion that Appellant failed to prove there was no reasonable basis for
trial counsel not objecting to the instruction after it was given.3 Trial Counsel
testified that allowing the limiting instruction was strategic and designed to
effectuate his client’s interests by protecting Appellant from improper
speculation. See N.T., 8/18/17, at 15, 20-21. Appellant does not argue that
the alternative (i.e., objecting or removing the instruction entirely) offered a
potential for success greater than the course actually pursued. See Spotz,
84 A.3d at 311-12. Instead, Appellant devotes a significant portion of his brief
attempting to relitigate the trial court’s admission of other crimes evidence –
an issue which this Court has already addressed on direct appeal, and which
invokes the law of the case. See, e.g., Appellant’s Brief at 18 (“Instantly, it
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3 While trial counsel objected to the instruction at the charging conference,
he waived this objection by not taking specific exception to the language of
the instruction after it was given outside the presence of the jury before
deliberation. Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(c); see Parker, 104 A.3d
at 29.
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is patently unreasonable to infer that [Appellant’s] possession of an unrelated
firearm, and possibly a magazine that . . . may not have been used in the
shooting. . . . is evidence of guilt.”); Herriott, 358 WDA 2013, at *7-10
(holding that “[s]ince the trial court did not abuse its discretion in admitting
this [other crimes] evidence, Appellant is not entitled to relief. . . .”).
Accordingly, Appellant’s claim fails under the reasonable basis element of the
ineffectiveness test.4
For the above reasons, we affirm the order denying Appellant’s amended
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2018
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4 We add that Appellant’s claim would additionally fail because, as stated by
the PCRA court, “there is no reasonable probability that the outcome of the
proceedings would be different. The eyewitness testimony alone provided
overwhelming evidence of [Appellant’s] guilt.” PCRA Court Opinion, 11/16/17,
at 21.
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