Com. v. Moore, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES MOORE :
:
Appellant : No. 1562 EDA 2019
Appeal from the Order Entered May 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1004221-2005,
CP-51-CR-1004231-2005
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES MOORE :
:
Appellant : No. 1563 EDA 2019
Appeal from the Order Entered May 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1004221-2005,
CP-51-CR-1004231-2005
BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 8, 2020
Appellant James Moore appeals from the orders dismissing his timely
first Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petitions
without a hearing. Appellant claims that the PCRA court erred in not holding
an evidentiary hearing or granting a new trial on his claims related to trial
counsel’s failures to (1) file a motion to bar retrial, (2) challenge the
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competency of one of the Commonwealth’s witnesses, (3) request a jury
instruction, and (4) litigate a Bruton1 issue. We affirm.
This Court summarized the factual and procedural history of Appellant’s
convictions in Appellant’s direct appeal.
Appellant and his co-defendant, Larry Alexander, were drug
dealers in North Philadelphia. The two victims, William Andre
Kennedy and Jermaine Williams, were also drug dealers. The four
men got into a dispute over drugs, money, and the drug-dealing
territory on 11th Street between Russell and Ortana Streets.
According to Khalid Coffield, another drug dealer, on April 29,
2005—the night before the murders—the defendants and victims
got into an argument in the street over drugs. Andre Lane,
another drug dealer, told police that Appellant, Alexander, and
several others planned to murder Jermaine Williams and Kennedy.
Late in the evening of April 30, 2005, Appellant arrived at the
residence of Kennedy’s uncle, looking for Kennedy and a package
of crack cocaine. Appellant left and returned with a second man.
The two punched the uncle in the face, forced their way into the
apartment, searched it but found neither Kennedy nor drugs, and
left. Before he was killed, Kennedy was living on 11th Street with
Sonia Noemi Leon, a drug user with mental-health issues. On the
evening of April 30, 2005, while Kennedy and Leon were smoking
marijuana, Kennedy’s cellphone began to ring. Leon recognized
the caller’s number as Alexander’s, but she overheard Appellant’s
voice on the other end of the conversation. Appellant said he and
Alexander wanted to meet Kennedy at the nearby Chinese food
store on Rising Sun Avenue. A short time later, Jermaine Williams
arrived at Leon’s apartment to pick up Kennedy in his car. Leon
told Kennedy not to go, but he got into Williams’s car, and the two
drove away and turned onto Rising Sun Avenue toward the
Chinese food store. Then, Leon heard gunshots. Marvin Williams,
who also knew the defendants and victims, lived across the street
from the Chinese food store. Early in the morning of May 1, 2005,
Marvin Williams saw the two victims outside of the Chinese food
store. He saw Alexander approach Kennedy, pull a gun, and shoot
him. Marvin Williams saw Appellant fire several shots at Jermaine
____________________________________________
1 Bruton v. United States, 391 U.S. 123 (1968).
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Williams. Then, the defendants ran away. Responding police
officers arrived, and Marvin Williams tussled with them. He tried
to grab one of their side arms, and was arrested.
After Appellant and Alexander fled the scene of the crime, they
went to a party at Khalid Coffield’s house. At the party,
Appellant—while still holding the murder weapon—described in
detail to Andre Lane how he shot Jermaine Williams twice in the
head, killing him.
Police officers responding to the sound of gunshots found Kennedy
in the passenger seat of Jermaine Williams’s car with multiple
gunshot wounds to the head. Officers found Jermaine Williams
outside of the Chinese food store, barely breathing and unable to
speak. Jermaine Williams was taken to the hospital with multiple
gunshot wounds to the torso, where he was pronounced dead. An
autopsy revealed that Kennedy had been shot seven times in the
head and upper torso. Jermaine Williams was shot ten times in
the upper body. Evidence collected from the victims’ bodies and
the crime scene indicated that the perpetrators had used two
firearms, one using 10 mm/.40 caliber cartridges, and the other
using 9 mm/.357 SIG caliber cartridges.
At about 8:00 a.m. on the morning of May 1, 2005, Appellant
appeared at the door of Leon’s house. Appellant was looking for
drugs, but Leon said there were none in her house. Appellant
responded, “if you don’t give them to me now, the same thing that
happened to Jermaine Williams and Kennedy will happen to you.”
Upon searching her house, Leon found drugs and packaging
material, which she hid. Leon’s house was burglarized later that
day, and she gave a statement to police about the murders.
While Marvin Williams and Alexander were incarcerated together,
Alexander told Marvin Williams that he had shot Kennedy seven
times and that he was worried about Appellant “running his
mouth.” Later in 2005, while Marvin Williams was serving a prison
sentence, his mother told him that his car had been firebombed
while it was parked in front of the Chinese food store. Marvin
Williams believed that the firebombing was because he had
testified at the preliminary hearing in this case.
Philadelphia Police developed Appellant and Alexander as
suspects, and arrested and charged them each with two counts of
first-degree murder, one count of conspiracy to commit murder,
and three violations of the Uniform Firearms Act (VUFA). [fn2] At
Appellant and Alexander’s first two trials in 2007 and 2011, the
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juries were unable to reach a verdict. At Appellant and
Alexander’s third trial in 2012, the jury convicted Appellant of
conspiracy, two counts of first-degree murder, and two VUFA. The
trial court immediately sentenced Appellant to two concurrent,
mandatory terms of life without parole and imposed no further
penalty on the other convictions.
[fn2]18 Pa.C.S.[] §§ 2502(a), 903, 6105 (person not to
possess firearms), 6106 (carrying firearms without a
license), and 6108 (carrying firearms on a public street in
Philadelphia), respectively.
[Appellant was charged in CP-51-CR-1004221-2005 (4331-
2005)] for the killing Jermaine Williams and in CP-51-CR-
1004231-2005 (4231-2005) for the killing of Kennedy].
Appellant and Alexander were tried together [for both
murders]. The jury found Alexander guilty of conspiracy,
and two counts of first-degree murder. . . .
Commonwealth v. Moore, 717 EDA 2013, at 1-6 (Pa. Super. filed July 21,
2014) (unpublished mem.) (citations omitted and formatting altered).
This Court affirmed Appellant’s judgments of sentence, and the
Pennsylvania Supreme Court denied Appellant’s petitions for allowance of
appeal. See id. at 1; Commonwealth v. Moore, 108 A.3d 35 (Pa. 2015).
The United States Supreme Court denied Appellant’s petition for writ of
certiorari on November 2, 2015. Moore v. Pennsylvania, 136 S. Ct. 407(2015).
Appellant timely filed a pro se PCRA petition, his first, on July 28, 2016.
The PCRA court appointed Appellant counsel (PCRA counsel), who filed
amended PCRA petitions on June 5, 2018.2 The Commonwealth, after
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2 We note there was a delay between July 2016 and October 2017 for the
assignment of a presiding PCRA judge. It appears that PCRA counsel was
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receiving continuances, filed motions to dismiss Appellant’s PCRA petitions on
March 20, 2019.
The PCRA court issued Pa.R.Crim.P. 907 notices of its intent to dismiss
Appellant’s petitions for lack of merit on April 23, 2019. Appellant did not
respond. The PCRA court thereafter entered the orders dismissing Appellant’s
petition on May 23, 2019.
Appellant timely filed notices of appeal in both cases.3 The PCRA court
did not order Appellant to file Pa.R.A.P. 1925(b) statements, but filed Rule
1925(a) opinions explaining its decision.
____________________________________________
appointed in October 2017, but was either unavailable or requested a
continuance before filing Appellant’s amended PCRA petition in June of 2018.
3The certified records do not contain Appellant’s notices of appeal. The copies
of PCRA counsel’s notice of appeal listed this Court’s records are identical and
caption both trial court case numbers. This Court issued a rule to show cause
why the appeals should not be quashed under Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018). PCRA counsel responded that the electronic filing
system was not functioning, but he “filed Notice of Appeal as of both matters,”
and “stressed to the Clerk that there must be notices of appeal for each
Common Pleas Court docket per [Walker].” Resp. to Rule to Show Cause,
6/7/19, at ¶ 2. PCRA counsel asserted that his efforts resulted in the listing
of two appellate docket numbers. Id. Further, PCRA counsel asserted that
he “sought to fully comply with Walker,” while acknowledging that his “Notice
of Appeal included both Common Pleas Court docket numbers.” Id.In a subsequent motion to consolidate the two appellate court docket
numbers, which this Court denied, PCRA counsel stated that the “[n]otices of
appeal were filed separately as to the two distinct Common Pleas docket
numbers per [Walker].” Mot. to Consolidate, 6/18/19, at ¶ 2. Neither the
Commonwealth nor the PCRA court have discussed Walker or requested
quashing the appeals.
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Appellant presents the following questions for review:
1. Did the PCRA court err in dismissing Appellant’s PCRA Petition
without a hearing because trial counsel was ineffective for failing
to file and litigate a [m]otion on double jeopardy grounds?
2. Did the PCRA court err in dismissing Appellant’s PCRA Petition
without a hearing because trial counsel was ineffective for failing
to request that Sonia Leon be examined to determine whether she
was competent to testify?
3. Did the PCRA court err in dismissing Appellant’s PCRA Petition
without a hearing because trial counsel was ineffective for failing
to request a limiting instruction in relation to the firebombing of
Marvin Williams’ car?
4. Did the PCRA court err in dismissing Appellant’s PCRA Petition
without a hearing because trial counsel was ineffective for failing
litigate Appellant’s Bruton . . . issue at trial?
Appellant’s Brief at 4.
Because Appellant presents his arguments as claims of ineffective
assistance of counsel, we initially note the following principles that govern our
review:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
____________________________________________
Following our review, it appears that PCRA counsel properly filed two separate
notices of appeal, one in each trial court case, but that the notices of appeal
were otherwise identical. Under these circumstances, we conclude that
Appellant perfected these appeals as required by Walker. See
Commonwealth v. J. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) (en
banc). However, we remind counsel that Walker requires that notices of
appeal be separately filed and that a clerk of a court may not photocopy and
place copies of a single notice of appeal in both records. See J. Johnson,
236 A.3d at 1146 n.5, 1148 n.9.
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error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
We have explained that
[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.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
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Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered), appeal denied, 216 A.3d 1029 (Pa.
2019).
Moreover,
[a] petitioner is not entitled to a PCRA hearing as a matter of right;
the PCRA court can decline to hold a hearing if there is no genuine
issue concerning any material fact and the petitioner is not entitled
to post-conviction collateral relief, and no purpose would be
served by any further proceedings. A reviewing court on appeal
must examine each of the issues raised in the PCRA petition in
light of the record in order to determine whether the PCRA court
erred in concluding that there were no genuine issues of material
fact and in denying relief without an evidentiary hearing.
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015) (citations
and quotation marks omitted).
Failure to File a Pretrial Motion based on Double Jeopardy
Appellant first argues that his counsel was ineffective for failing to file a
pretrial motion to bar his third trial, at which the jury found him guilty.
Because consideration of the reasons for the mistrial at Appellant’s second
trial is crucial to Appellant’s argument, we summarize the following
background, as set forth by the trial judge at that time:
The case was sent to the jury for deliberations on September 21[,
2011].
* * *
The alternate was dismissed at that time. There was no indication
of any problems for the need to retain that alternate. The jury
began their deliberations that afternoon. Instructed to return on
the next day. On the 22nd of September all the jurors returned.
However, Juror Number 10 was ill, visibly ill, was ultimately
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transported from the court to Hahnemann Hospital by ambulance.
The court spent most of Thursday and Friday trying to determine
the status of Juror Number 10. Ultimately, speaking with him and
made efforts to speak to hospital personnel. There was no clear
indication as to how long the juror would be in the hospital and
when and if he would be able to return.
On Monday, the 26th, we learned from Juror Number 10 that he
had had surgery on his hand during the weekend for fractures.
Efforts were again made to talk to hospital personnel.
On Tuesday, the 27th, the court learned from the juror, and also
from the doctor, that he was to be released that afternoon. I
spoke with the doctor, the doctor indicated that the juror was
physically able to return, that medication the juror was taking
would not interfere with the deliberation process. This was also
confirmed by the juror.
All jurors were instructed to return on Wednesday morning. That
would have been the 28th. In the presence of counsel the court
spoke with Juror Number 10 as to his ability to continue
deliberations. He indicated that he was able to do so and the
jurors did resume their deliberations. The jurors deliberated on
all day Wednesday, all day Thursday and most of the day on
Friday. The jurors were instructed to return on Monday morning,
October 3rd. Juror Number 10 did not appear, made no contact
with the court. Efforts were made to contact the juror by
telephone. And ultimately someone was sent, an officer assigned
to the District Attorney’s Office, was sent to try to find out what
was going on with Juror Number 10.
I believe that contact, from the testimony this morning[, October
4, 2011], was made somewhere between 12:00 and 1:00 p.m.
yesterday. Efforts were made to have the Sheriff’s Office pick up
the juror this morning to make sure the juror was present.
However, Juror Number 10 did appear on his own [on October 4,
2011].
N.T., 10/4/11, at 38-40.
The trial judge examined Juror Number 10 on October 4, 2011, as well
as Officer Nicholas DeNofa, who was assigned to the District Attorney’s Office
and contacted Juror Number 10 on October 3, 2011. Co-defendant’s counsel
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thereafter moved for a mistrial, arguing that Juror Number 10 should not
proceed as a juror and stating, in part, that he wanted twelve jurors
deliberating. Id. at 34. Appellant’s counsel at the time joined co-defendant’s
motion and set forth additional arguments in support of a mistrial. Id. at 34.
When asked by the trial judge if Appellant would proceed with eleven jurors,
Appellant’s counsel asserted that she consulted with Appellant and would not
proceed with eleven jurors. Id. at 37. The Commonwealth objected to a
mistrial, suggesting that Juror Number 10 could resume deliberations. Id. at
31.
The trial court granted the joint motion for mistrial in Appellant’s second
trial finding manifest necessity due to Juror Number 10’s “unforeseen illness
and absence during deliberations.” Id. at 38. Appellant’s third trial began in
September 2012, and the jury found him guilty on September 25, 2012.
In the underlying PCRA proceeding, Appellant claimed that his counsel
was ineffective for failing to file a motion to dismiss “alleging that the matter
should be dismissed on double jeopardy grounds because the [trial judge at
the second trial] sua sponte granted a mistrial in the absence of grounds
justifying terminating the case.” Am. PCRA Pet., 6/5/18, at 4. Appellant
further alleged that the trial judge “declared a mistrial without first exploring
alternate remedies with [Appellant] himself about an appropriate remedy” and
that “trial counsel at the time, did not consult with [Appellant] before agreeing
to a mistrial either.” Id.
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The PCRA court dismissed Appellant’s claim, emphasizing that “[the trial
court at the second trial] did not, as [Appellant] claim[ed], sua sponte declare
a mistrial.” PCRA Ct. Op., 7/26/19, at 8. The PCRA court concluded that
Appellant’s claim was “belied by the record and meritless.” Id. at 7.
On appeal, Appellant maintains that his counsel was ineffective for
failing to bar his third trial based on the trial court’s sua sponte declaration of
mistrial at his second trial. Appellant’s Brief at 8-17. Appellant adds,
“Contrary to the PCRA court’s [o]pinion, there is nothing in the [r]ecord that
shows that trial counsel moved for mistrial.” Id. at 16.
The Commonwealth counters that the PCRA court properly dismissed
Appellant’s ineffectiveness claim. Commonwealth’s Brief at 8. The
Commonwealth states Appellant’s claim rests on a “false premise” that trial
court sua sponte declared a mistrial at the second trial. Id.
Following our review, we agree with the PCRA court and the
Commonwealth’s respective assessments that the record belies Appellant’s
claim and that his legal arguments proceed from a faulty premise. As noted
above, Appellant’s counsel at his second trial joined in a motion for mistrial
based on Juror Number 10’s illness, absences from deliberations, and
apparent inability to proceed in further deliberations. See N.T., 10/4/11, at
34, 37, 38. As Appellant’s second trial did not end in a sua sponte declaration
of a mistrial, Appellant’s extensive discussion of such cases is misplaced. See
Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa. Super. 2013) (noting the
general rule that the double jeopardy clause does not bar retrial when a
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defendant moves for a mistrial absent misconduct by the Commonwealth);
see also Commonwealth v. K. Johnson, 231 A.3d 807, 826 (Pa. 2020)
(noting that “prosecutorial overreaching sufficient to invoke double jeopardy
protections [under the Pennsylvania Constitution] includes misconduct which
not only deprives the defendant of his right to a fair trial, but is undertaken
recklessly, that is, with a conscious disregard for a substantial risk that such
will be the result”). Accordingly, the record supports the PCRA court’s
findings, and Appellant fails to demonstrate any legal error in the PCRA court’s
dismissal of Appellant’s claim for a lack of arguable merit. See Sandusky,
203 A.3d at 1043; Smith, 121 A.3d at 1052.
Failure to Challenge the Competency of Sonia Leon
Appellant’s next claims that his counsel at his third trial was ineffective
for failing to request an examination of Sonia Leon to determine if she was
competent to testify. Appellant notes that Leon testified that she was not
taking medication for her mental health issues. Appellant’s Brief at 17 (citing
N.T., 9/12/12, at 78-79). Appellant emphasizes that “her testimony shows
an angry and obstreperous witness who not only had to be admonished
numerous times to act appropriately, but also one who admitted she was a
liar and whose testimony [at trial] contradicted prior testimony and
statements given by her.” Id. at 17-18. Appellant further notes that Leon’s
testimony established that he, not co-defendant, called one of the victims
shortly before the shooting and thereby implicated him in the killings. Id. at
18.
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The Commonwealth responds that Appellant “did not identify any
deficiency in Ms. Leon’s capacity to testify.” Commonwealth’s Brief at 9. The
Commonwealth asserts Appellant’s arguments, “while certainly relevant to the
weight of the evidence, do no undercut Ms. Leon’s competence.” Id.
According to the Commonwealth, Appellant’s underlying claim of
ineffectiveness amounts to an attack not on Leon’s competence, but her ability
to testify in a “searing and compelling manner.” Id. at 10. The
Commonwealth adds that Appellant cannot show prejudice, noting that he did
not establish that “had counsel raised the issue, Ms. Leon would have been
found incompetent and . . . without her testimony, he would likely have been
acquitted.” Id.
The PCRA court concluded, in part, that Appellant did not establish his
claim of ineffectiveness had arguable merit. PCRA Ct. Op. at 10. The PCRA
court explained: “[Appellant] assert[ed] that a competency hearing should
[have been] given to a witness who act[ed] inappropriate[ly] on the stand,
admit[ed] to lying, or whose testimony contradict[ed] earlier statements. This
is not the standard for ordering a competency hearing . . . .” Id. The PCRA
concluded that Appellant’s claim of ineffectiveness failed and that no relief was
due. Id.
In Commonwealth v. Boich, 982 A.2d 102, 109-10 (Pa. Super., 2009)
(en banc), this Court summarized the principles governing a challenge to the
competence of a witness.
Pennsylvania Rule of Evidence 601 provides, in pertinent part:
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Rule 601. Competency
(a) General Rule. Every person is competent to be a
witness except as otherwise provided by statute or in these
Rules.
(b) Disqualification for Specific Defects. A person is
incompetent to testify if the Court finds that because of a
mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of
perceiving accurately;
(2) is unable to express . . . herself so as to be
understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the
truth.
Pa.R.E. 601 (emphasis added). This rule is expressly intended to
preserve existing Pennsylvania law. In general, the testimony of
any person, regardless of her mental condition, is competent
evidence, unless it contributes nothing at all because the victim is
wholly untrustworthy. Thus, in Pennsylvania, a witness is
presumed competent to testify, and it is incumbent upon the party
challenging the testimony to establish incompetence. Above all,
given the general presumption of competency of all witnesses, a
court ought not to order a competency investigation, unless the
court has actually observed the witness testify and still has doubts
about the witness’ competency.
Claims that a witness’ memory has been corrupted by insanity,
mental retardation, hypnosis, or taint go to the competency of
that witness to testify. The capacity to remember and the ability
to testify truthfully about the matter remembered are components
of testimonial competency. The party alleging a witness is
incompetent to testify must prove that contention by clear and
convincing evidence.
Boich, 982 A.2d at 109-10 (some citations and footnote omitted, some
formatting altered).
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Instantly, prior to jury selection for Appellant’s third trial, the
Commonwealth raised an oral motion in limine indicating that “in the
abundance of caution, candor and efficiency[, the Commonwealth sent a letter
to the trial judge4] on Ms. Leon.” N.T., 9/10/12, at 11-12. The following
exchange occurred:
THE COURT: All right. You’re satisfied that that’s been resolved?
[The Commonwealth]: I am satisfied that she is fully aware and
understanding where she is and everything, and we had a
discussion in our office where we talked about the case.
THE COURT: Okay.
[The Commonwealth]: [Co-defendant’s counsel] wants to inquire
as to her bipolar disorder. I would move to preclude that. If she
gets on the stand, then she’s fine. It wouldn’t be relevant, and it
would be overly prejudicial to Ms. Leon’s testimony.
[Co-defendant’s Counsel]: Your Honor, if I may just say a few
things?
THE COURT: Yes.
[Co-defendant’s Counsel]: This is, you know, the third round.
We’ve been through two other trials to completion. This Ms. Sonia
Leon has testified at all of these occasions. We were just given
this information by the Commonwealth last week saying that this
woman may not be competent. It doesn’t say when, where, how.
There is no information whatsoever given to us the nature and
circumstances behind this woman’s competency.
THE COURT: Behind what?
[Co-defendant’s Counsel]: Behind her competency.
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4 The correspondence referred to by the Commonwealth was not made part
of the record. However, it appears that the Commonwealth’s letter stated
that the Commonwealth believed she was incompetent. See N.T., 9/11/12,
at 6-7.
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THE COURT: Well, who says she is not competent?
[Co-defendant’s Counsel]: The Commonwealth brought the issue
up.
THE COURT: I understand that.
[Co-defendant’s Counsel]: All I’m asking for, and maybe this is
not the right time, but putting the [trial c]ourt on notice, the
defense should be allowed to ask questions of her regarding her
prior -- we’re going to be asking her questions about her prior
testimony and is it fair enough game if she came in that day under
the influence of alcohol. That would have been fair questions for
subsequent counsel to ask questions about. What I’m saying is
the defense will be -- we will need to ask her questions regarding
whether or not or what stage, what her ability to perceive what
the events were the day she testified.
THE COURT: Well, I am not concerned about her ability. I think
he is not necessarily concerned about her ability to perceive
events on the day she testified. We’re really concerned about her
ability to observe on the day of the incident, the day when she
witnessed the incident, right?
[Co-defendant’s Counsel]: Yes and no. I mean, you’re right. It
certainly goes to the incident. We have no information. Had she
had this her whole life? Is it something that came up six months
ago? I have no information on that. So at the right time -- if this
is not the right time, I will address it later.
THE COURT: Well, I think my real question is whether a person
who has a bipolar disorder is generally otherwise thought not to
be able to perceive whatever it is they perceived. You know, it’s
not like somebody who has schizophrenia or some other sort of
mental health disability. But you know what, let me tell you what.
I suppose you could ask these couple of limited questions: Has
she ever had mental health treatment. If so, what was the
diagnosis. Does it require medications. Was she on her
medications at the time of the incident. Those four questions you
may ask her.
[Co-defendant’s Counsel]: Fair enough. Thank you, Your Honor.
THE COURT: And that would be actually -- you would want to know
in terms of was she on her medications at the time that she
observed whatever she observed back in May of 2005.
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N.T., 9/10/12, at 11-15.
The Commonwealth called Leon to testify at the third trial on September
12, 2012. After Leon answered several questions from the Commonwealth,
Appellant counsel at the time requested a sidebar conference, which the trial
court granted. N.T., 9/12/12, at 15. At the conference, Appellant’s counsel
stated that Leon appeared to be “under the influence of some type of drug
and/or alcohol.” Id. at 15. According to Appellant’s counsel, Leon’s speech
was slurred, her eyes were “dimming” and “closed,” and her eyes appeared
to be “red” and “glassy.” Id. at 15-16. Appellant’s counsel requested that
the trial court rule on Leon’s competence to testify.
The trial court denied the request, explaining:
The [c]ourt has listened to the witness’ testimony and the [c]ourt
does agree that her -- that she does have some speech
affectation, I would call it. I mean, I wouldn’t call it slurred, but
she has a speech pattern that’s different from most people, but
she -- the [c]ourt also observed that] she has responded promptly
and competently to all questions that have been put to her. So
I’m not going to grant your request that she be declared
incompetent. But I will allow you to explore with her whether she
has in fact taken any mind-altering substances prior to coming to
court today.
Id. at 16.
Leon thereafter testified for the Commonwealth without any incident,
although Leon admitted that during the investigation into the shootings, she
was not forthcoming in her statements to police and made a false report to
police that cash and home electronics were missing from her home. See id.
at 60, 65, 67-69. On cross-examination, which began on September 12,
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2012, and continued on the next day of trial, September 17, 2012, Leon
admitted that she was diagnosed with bipolar disorder in 2003, but threw
away the medications for her condition. Id. at 78. During cross-examination,
Leon demonstrated a lack of decorum, hostility to questioning by Appellant’s
counsel, and uncooperativeness with Appellant’s counsel and at times, toward
the trial court. See e.g. id. at 80 (indicating that Leon raised her middle
finger at Appellant’s counsel), 84-85 (indicating that Leon threw an exhibit on
the floor), 115 (indicating that Leon felt that Appellant’s counsel was “getting
smart with [her]”); N.T., 9/17/12, at 13-16 (indicating that Leon refused to
accept an exhibit from Appellant’s counsel and threatened to “flick” the
document to the floor even when the trial court asked her to take the
document).
Based on this record, we conclude that the record supported the PCRA
court’s determination that Appellant’s references to Leon’s episodes of anger,
obstreperousness, and admissions to lying to police did not provide a proper
basis to challenge Leon’s competency as a witness. See PCRA Ct. Op. at 10.
Further, Appellant’s counsel at the time extensively cross-examined Leon and
the jurors, as the finders of fact, were able to observe Leon’s responses in
order to make their credibility and factual determinations. Accordingly, we
discern no legal error in the PCRA court’s conclusion that Appellant’s claim of
ineffectiveness to request a competency hearing for Leon lacked arguable
merit. See Sandusky, 203 A.3d at 1043. Therefore, we agree with the PCRA
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court that no relief was due. See Sandusky, 203 A.3d at 1043; Smith, 121
A.3d at 1052. Therefore, we agree with the PCRA court that no relief was due.
Failure to Request a Limiting Instruction
Appellant next claims that the PCRA court erred in dismissing his claim
that his counsel at his third trial should have requested a limiting instruction
to the jury regarding Marvin Williams’ testimony that his car was firebombed.
By way of background to this claim, Marvin Williams inculpated Appellant in
his statement to police and his testimony at the preliminary hearing.
However, at Appellant’s first two trials, Marvin Williams refused to adopt his
statement and preliminary hearing testimony.
At the third trial, Marvin Williams again refused to adopt his prior
statement and testimony at the preliminary hearing. After the Commonwealth
confronted him with his preliminary hearing testimony, the Commonwealth
asked whether something happened to his car. N.T., 9/18/12, at 88.
Appellant’s counsel objected and at a sidebar conference, the Commonwealth
indicated that it intended to elicit testimony that Marvin Williams received
information in 2007 that his car “got firebombed.” Id. at 90. Specifically,
counsel for the Commonwealth stated:
My argument is [Marvin Williams] went south because he’s scared,
because he had knowledge of something that happened right in
front of his mother’s house where she still lives. It doesn’t need
to be true to change someone’s testimony in order to have that
effect on his state of mind. It doesn’t need to be true. Could be
lies, lies, lies. That’s why it’s not offered for the truth. It’s offered
for his state of mind.
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Id.
Appellant’s counsel asserted that there was no evidence that Marvin
Williams’ car was damaged and the admission of the testimony would be
unduly prejudicial. Id. at 95-96, 97. The trial court overruled the objection,
and Marvin Williams testified that his mother told him someone set his car on
fire and that he did “not know” but believed it “probably [happened] because
of testimony and stuff . . . .” Id. at 102-04. The Commonwealth also elicited
testimony from Marvin Williams that he heard the car was burned across the
street from his mother’s house and that his mother was living in the same
house at the time of the third trial. Id. at 110-11.
Appellant challenged the admissibility of Marvin Williams’ testimony
about the car in his direct appeal, and this Court affirmed the trial court’s
ruling. Moore, 717 EDA 2013, at 13-16. This Court emphasized that the
evidence was not admitted for the truth of the matters asserted, was probative
of the change in Marvin Williams’ statements, and was not unfairly prejudicial
to Appellant merely because it was harmful to his case. Id. at 14-15.
In the underlying PCRA proceeding, Appellant asserted that his counsel
at his third trial was ineffective for failing to request an instruction that the
jury should not consider Marvin Williams’ testimony for the truth of the matter
asserted, namely, that the car was firebombed and that Appellant was
involved in the firebombing of the car. Am. PCRA Pet. at 11-12. In support
of his assertion that there was arguable merit, Appellant relied on
Commonwealth v. Billa, 555 A.2d 835 (Pa. 1989). Id. at 25-27.
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Appellant further asserted that he suffered prejudice because without
the limiting instruction, “it was left for the jurors to make several improper
inference of both law and fact.” Id. at 25-26. Appellant continues:
As an issue of law, the jurors, wholly unfamiliar with evidentiary
rules, were incorrectly left to decide the purpose of this evidence
and the inferences they could properly draw from this evidence.
Specifically, the jurors would have incorrectly assumed that they
legitimately could use this evidence as evidence of both
[Appellant]’s guilt and character. As an issue of fact, the jurors
were left to impermissibly assume that: (1) [Appellant] had a
threatening, violent, and manipulative reputation; and/or (2)
[Appellant] intimidated witnesses and/or recruited others to
intimidate witnesses. Based on the totality of the evidence
presented at [Appellant’s] trial, a reasonable probability exists
that the outcome of his trial would have been different had trial
counsel sought these necessary limiting instructions . . . .
Id. at 27.
The PCRA court dismissed Appellant’s claim concluding that Appellant
“offer[ed] no binding legal authority requiring relief due [the] lack of a limiting
instruction in these situations.” PRCA Ct. Op. at 11. The PCRA court
acknowledged Appellant’s reliance on Billa, but discussed Commonwealth
v. Reid, 99 A.3d 427 (Pa. 2014), to suggest that “it is not always necessary
to give a limiting instruction, especially when the evidence only implies
criminal activity.” Id. at 12-14. The PCRA court further concluded that
Appellant could not establish prejudice because there was “sufficient and
overwhelming” evidence of Appellant’s involvement in the shooting deaths of
Jermaine Williams and Kennedy. Id. at 14.
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In the present appeal, Appellant largely restates the arguments he set
forth in his amended PCRA petition. See Appellant’s Brief at 19-40. Appellant
further argues that “[t]he PCRA court fail[ed] to address this issue in a
meaningful manner and glosse[d] over the substantial prejudice caused to
Appellant.” Id. at 40.
The Commonwealth, in response, emphasizes that it only introduced
evidence that Marvin Williams “believed that his car had been firebombed in
retaliation for his preliminary hearing testimony” and that “[t]here was no
suggestion that this testimony could be used as substantive evidence of
[Appellant’s] guilt.” Commonwealth’s Brief at 11 (emphasis in original). The
Commonwealth adds that the defense strategy at the third trial was to
“portray Marvin Williams . . . as the actual killer . . . .” and emphasize that
Marvin Williams was involved in the drug trade and had other enemies. Id.
at 12-13. Furthermore, the Commonwealth asserts that “[n]othing suggests
the jury imputed this tangential issue in Marvin [Williams’] testimony to
[Appellant], or that the jury’s verdict was based in any part on this peripheral
matter, rather than the overwhelming direct and circumstantial evidence of
[Appellant’s] guilt.” Id. at 13.
In Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), our
Supreme Court considered a claim that an appellant’s claim of ineffectiveness
for failing to request a limiting jury instruction regarding prior bad acts. The
Hutchinson Court rejected the claim, noting:
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This Court has held that when evidence of a defendant’s prior
criminal conduct or bad acts is admitted, the defendant is entitled
upon request to a jury instruction explaining the limited purpose
of such evidence.
In Billa, we granted the appellant a new trial after concluding that
his counsel was ineffective for failing to request a limiting
instruction. The appellant had been found guilty of the first-
degree murder of a sixteen-year-old girl with whom he had been
attempting to establish a relationship. The trial court had
admitted, over defense counsel’s vigorous objection, testimony
concerning a violent sexual assault on a different victim that had
been committed by the appellant approximately two months
before the murder. The two attacks bore numerous similarities,
including the fact that both victims were young Hispanic females.
Although we noted that the testimony of the sexual assault victim
was vivid, graphic, highly prejudicial, and potentially emotional,
we held that it was properly admitted because of its relevance to
proving the appellant’s motive and intent and the absence of
accident. Nonetheless, we also held that trial counsel was
ineffective for failing to request an appropriate limiting instruction.
We recognized that the highly inflammatory testimony of the prior
sexual assault victim “created the substantial danger that the jury
could be swayed in its deliberations . . . by this evidence showing
[the] appellant’s criminal character and his propensity to sexually
assault young Hispanic females.” In addition, we recognized that
the evidence in question was not merely a fleeting or vague
reference to the appellant’s criminal record, but rather was
extensive as well as inflammatory, comprising a substantial
component of the Commonwealth’s case and garnering an
emphasis in closing argument. Accordingly, “[a]n appropriate
limiting instruction . . . would not have increased the jury’s
awareness of the prior sexual assault, but it well might have
placed its limited legal significance in proper perspective.” We
concluded that the Billa appellant’s counsel was constitutionally
ineffective for failing to request an appropriate limiting instruction
as to the permissible use of evidence of the prior sexual assault,
and we therefore awarded the appellant a new trial.
In the instant case, the relevant circumstances have little, if
anything, in common with those of Billa, and we decline to hold
that trial counsel was ineffective for failing to request a limiting
instruction. The bad acts evidence of which [Hutchinson]
complains was not inflammatory, not graphic, and not extensive.
Some of the evidence was elicited as a single sentence in passing
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during cross-examination of the witnesses by defense counsel. In
closing argument, the Commonwealth did make reference to
[Hutchinson’s] abuse of the victim, but did not mention the other
bad acts. Under these circumstances, an instruction as to the bad
acts evidence may very well have served only to re-emphasize the
evidence to the jury. More importantly, [Hutchinson] has not
established prejudice, i.e., he has failed to demonstrate that there
is a reasonable probability that the outcome of his trial would have
been different but for the lack of a limiting instruction. We have
previously noted the “overwhelming evidence” of [Hutchinson’s]
guilt. In light of this overwhelming evidence, which includes
eyewitness testimony of the victim’s two children, both of whom
knew [Hutchinson], [Hutchinson] has failed to suggest how he
could have been prejudiced by counsel’s failure to request a
limiting instruction such that there is a reasonable probability that
the outcome of his trial would have been different. There is no
merit to [Hutchinson’s] claim of trial counsel ineffectiveness with
regard to a limiting instruction . . . .
Hutchinson, 25 A.3d at 305-06 (citations omitted).
Following our review, we conclude that the instant case is closer to
Hutchinson than Billa. Marvin Williams’ testimony that someone set his car
on fire and that he believed it was related to his preliminary hearing testimony
was not inflammatory, or graphic, and the Commonwealth’s questioning and
Marvin Williams’ responses were both limited. Specifically, Marvin Williams
testified that his mother told him that “someone set it [the car] on fire[,]” and
when the Commonwealth asked “why [he] believe[d] that happened,” he
responded: “I don’t know. Probably because of testimony and stuff. I don’t
know.” N.T. 9/18/12, at 102-04. Unlike Billa, this testimony was not graphic
or extensive, nor did it explicitly implicate Appellant.
Furthermore, given the purpose and nature of Marvin Williams’
testimony about his car, we disagree with Appellant’s argument that he was
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prejudiced by the absence of a cautionary jury instruction. As noted above,
the testimony did not expressly implicate Appellant. Appellant and co-
defendant had ample opportunity at the third trial to establish that there was
no objective corroboration of Williams’ belief that a car was set on fire,
impeach William’s credibility on the basis that the car in question was not
registered to Williams, and suggest other individuals had motive to damage
the car. The Commonwealth, in its closing statements, did not unduly
emphasize the evidence, suggest Appellant’s involvement, or urge the jury
that the evidence constituted consciousness of guilt.
Based on the foregoing, Appellant did not establish his ineffectiveness
claim regarding the failure to request a limiting jury instruction warranted
relief.5 Accordingly, we discern no error in the PCRA court’s dismissal of this
claim. See Sandusky, 203 A.3d at 1043-44; Smith, 121 A.3d at 1052.
Failure to Litigate a Bruton Issue
In his final claim, Appellant contends that the PCRA court erred in
dismissing his claim that his counsel failed to raise a Bruton objection when
____________________________________________
5 We note that while the PCRA court relied on Reid, that case is different from
the instant case. In Reid, the challenged evidence giving rise to the jury
instruction claim related to the appellant’s general association with a gang,
rather than evidence of a specific act or crime. See Reid, 99 A.3d at 451-52.
Moreover, Reid involved a jury instruction with respect to imposition of the
death penalty, and the trial court instructed the jury that it was required to
find a significant history of felony convictions involving use of threats or
violence when deliberating on the existence of aggravating factors. See id.
Nevertheless, the PCRA court’s statements that not all failures to request a
limiting instruction will result in a viable ineffective assistance of counsel claim
remains apt for the reasons discussed above.
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the Commonwealth confronted Marvin Williams with Williams’ prior statement
to police. The exchange referred to conversations Williams had with co-
defendant in prison after the shooting, included references to Appellant’s
nickname, “Third,” and read as follows:
[Commonwealth]. The next question [in the prior statement to
police]:
What did you and [co-defendant] talk about?
“Answer: The shootings.
“Question: What did [co-defendant] tell you about the
shootings?
“Answer: He said that he shot Dre [i.e. Kennedy] twice in
the head and five times in the chest. [Co-defendant] was
worried about Third running his mouth.
“Question: Did [co-defendant] tell you why he killed Dre?
“Answer: About a week-and-a-half before this happened,
[co-defendant] told me he was going to get Dre, but he did
not say why.
“Question: Did you ever speak to Third since the shooting?
“Answer: No.
N.T., 9/17/12, at 215-16 (emphasis added). It appears that in the prior two
trials and the preliminary hearing, the Commonwealth did present the portion
of Marvin Williams’ statement referring to co-defendant’s concerns about
Appellant.
In the underlying PCRA proceeding, Appellant challenged his counsel’s
failure to litigate a Bruton objection arguing:
In the present matter, [co-defendant] confessed to fellow inmate,
Marvin Williams, to the killings . . . herein. [Co-defendant] was
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afraid that [Appellant] (“Third”) would run his mouth about the
killings.
[Co-defendant] did not testify. [Co-defendant] could only know
that [Appellant] was involved in the killings if [co-defendant] was
at the scene of the killings with [Appellant]. [Co-defendant] could
only know that [Appellant] had motive to run his mouth if he knew
and/or was involved in the killings.
Trial counsel had no reasonable basis for not seeking severance
or at least redaction at a very minimum.
[Appellant] was prejudiced by [trial] counsel’s failure to properly
object [at the third trial], failure to preserve this issue on appeal,
and failure to litigate this issue on appeal. [Appellant] was
prejudiced because the jury could only infer that that [Appellant]
was involved in the murders and, moreover, [Appellant] was
unable to confront a key witness against him.
Am. PCRA Pet. at 32-33.
The PCRA court dismissed Appellant’s claim, noting that co-defendant’s
statement “did not implicate [Appellant] as a participant of crime” but only
indicated co-defendant fear that Appellant “would tell someone about the
shooting.” PCRA Ct. Op. at 15. The PCRA court reasoned:
Here, [Appellant’s] name was not redacted because Marvin
Williams’ testimony did not implicate him in the crime. Instead,
the statement simply implicated that [Appellant] knew something
about the killings and that Alexander was worried that he would
run his mouth. Through other properly admitted evidence,
[Appellant] was also implicated as a participant in the killings.
However, since this implication did not result from Marvin
Williams’ testimony as to what [co-defendant] told him while
incarcerated, no Bruton violation occurred.
Therefore, this claim fails and no relief is due.
Id. at 15-16 (citation omitted).
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Appellant essentially restates the claim he presented to the PCRA court.
Appellant summarizes the law governing Bruton claims, Appellant’s Brief at
40-46, and asserts the same ineffective assistance of counsel claim set forth
in his amended PCRA petition, see id. at 46-47; see also Am. PCRA Pet. at
32-33.
The Commonwealth responds that no relief is due. Commonwealth’s
Brief at 14. Similar to the PCRA court, the Commonwealth contends that
Bruton is inapposite because co-defendant’s statement did not incriminate
Appellant and only conveyed co-defendant’s concern that Appellant was
“indiscrete.” Id. The Commonwealth also states that Appellant “failed to
show that in the absence of this testimony from Marvin Williams, it was likely
he would have been acquitted.” Id.
Our Supreme Court has stated:
In Bruton, the United States Supreme Court held that the
admission into evidence of an extrajudicial statement of
confession by non-testifying co-defendant A inculpating co-
defendant B in the crime, violated co-defendant B’s right of cross-
examination under the Confrontation Clause of the Sixth
Amendment. In other words, as the High Court stated
subsequently in Richardson v. Marsh,[ 481 U.S. 200, 206
(1987)], “where two defendants are tried jointly, the pretrial
confession of one cannot be admitted against the other unless the
confessing defendant takes the stand.” In reaching this holding,
the High Court reasoned that, even if the jurors were instructed
to the contrary, there remained a substantial risk that they would
look to co-defendant A’s incriminating extrajudicial statement in
assessing co-defendant B’s guilt. Thus, in Bruton, the High Court
created a narrow exception to the general legal principle that the
jury is presumed to follow the court’s instructions.
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Commonwealth v. Roney, 79 A.3d 595, 623-24 (Pa. 2013) (some citations
omitted).
Nevertheless, redaction is “an appropriate method of protecting
defendant’s rights under the Bruton decision.” Commonwealth v. Rainey,
928 A.2d 215, 227 (Pa. 2007) (citation omitted). Discussing the High Court
decision in Richardson, our Supreme Court explained:
Therein, the Court held that the “Confrontation Clause is not
violated by the admission of a non-testifying co-defendant’s
confession with a proper limiting instruction when . . . the
confession is redacted to eliminate not only the defendant’s name,
but any reference to his or her existence.” Consistent with the
High Court’s pronouncement and our own line of cases, we have
held that substituting the neutral phrase “the guy” or “the other
guy” for the defendant’s name is an appropriate redaction.
Commonwealth v. Cannon, 22 A.3d 210, 218 (Pa. 2011) (citations
omitted).
To the extent Appellant contends that the above-recited testimony
implicated Bruton such that severance from co-defendant was required, we
agree with the PCRA court no relief is due. Specifically, even if Marvin
Williams’ passing reference to co-defendant’s concern that Appellant was
“running his mouth” was incriminating, the trial court could have redacted the
statement and issued a cautionary instruction, such that a joint trial would
have been proper. See Cannon, 22 A.3d at 218. Therefore, Appellant failed
to establish arguable merit to his claim that trial counsel should have moved
for severance based on Bruton. See Sandusky, 203 A.3d at 1043.
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To the extent Appellant argues that his trial counsel at the third trial was
ineffective for seeking redaction, our review reveals no basis to find either
arguable merit or prejudice to Appellant’s claim. As noted by the PCRA court,
Marvin Williams’ recitation of co-defendant’s confession and beliefs regarding
Appellant was not the type of powerfully incriminating evidence triggering
Bruton concerns. See PCRA Ct. Op. at 15-16.
Moreover, Appellant has not demonstrated there was a reasonable
possibility that the outcome at trial would have been different had Appellant’s
counsel at the third trial objected and obtained a redaction and cautionary
instruction. Specifically, to the extent Appellant argues that co-defendant’s
statement was prejudicial, the record establishes that other witnesses
provided prior statements that Appellant boasted about the shooting at a party
while brandishing a firearm. Appellant also fails to acknowledge that Marvin
Williams also provided his prior statement and preliminary hearing testimony
directly implicating Appellant in the shooting. Therefore, the record belies
Appellant’s assertion that his counsel’s failure to move for redaction and a
cautionary instructed resulted in prejudice. Accordingly, we affirm the PCRA
court’s decision to dismiss this claim. See Sandusky, 203 A.3d at 1043-44;
Smith, 121 A.3d at 1052.
For the reasons stated herein, we discern no basis to disturb the trial
court’s ruling to dismiss Appellant’s claims. Moreover, because our review
reveals no issues of fact requiring an evidentiary hearing, we affirm the PCRA
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court’s order dismissing Appellant PCRA petition. See Sandusky, 203 A.3d
at 1043-44; Smith, 121 A.3d at 1052.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/08/2020
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