Com. v. Smallwood, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW SMALLWOOD :
:
Appellant : No. 1375 EDA 2021
Appeal from the PCRA Order Entered June 15, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013250-2012
BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 15, 2023
Andrew Smallwood appeals, pro se, from the order dismissing his timely
petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546. On appeal, Smallwood asserts the PCRA court erred in denying
his petition based on several claims of ineffective assistance of counsel. After
careful review, we affirm.
Smallwood was convicted of the first-degree murder of Rasul Gresham
and possession of an instrument of a crime in 2015 and sentenced to life in
prison without the possibility of parole. Following his direct appeal, Smallwood
filed the instant timely first PCRA petition in 2018. After several amendments,
the PCRA court ultimately dismissed the petition as meritless. Smallwood filed
this timely appeal and subsequently requested to proceed pro se. The PCRA
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* Former Justice specially assigned to the Superior Court.
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court held a Grazier1 hearing and granted Smallwood’s request to proceed
pro se on appeal.
Smallwood claims both trial and PCRA counsel were ineffective in various
instances. Counsel is presumed effective and the person claiming
ineffectiveness must prove otherwise. See Commonwealth v. Koehler, 36
A.3d 121, 178 (Pa. 2012). To succeed on a claim of ineffective assistance of
counsel, a petitioner must plead and prove three things: “(1) that the
underlying issue has arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from counsel’s act or
failure to act.” Commonwealth v. Stultz, 114 A.3d 865, 880 (Pa. Super.
2015) (citation omitted). If the petitioner fails to meet any one of these
prongs, their claim fails. See id.First, Smallwood claims that trial counsel was ineffective for failing to
object to the closure of the courtroom during testimony from a Commonwealth
witness. See Appellant’s Brief at 23. Smallwood cites the long history of public
trials in this country and argues that the removal of the public for the
testimony of one witness violated his constitutional right to a public trial and
trial counsel was ineffective for failing to object to the violation. See id. at 23-
9.
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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (requiring on-the-
record inquiry to determine whether criminal defendant’s waiver of counsel is
knowing, intelligent, and voluntary).
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The witness in question was the girlfriend of the Gresham. See N.T.,
2/5/15, at 96. Prior to her testimony, the district attorney moved to clear the
spectators from the courtroom and have the sheriff bring her to and from the
courtroom through the back elevators. See id. at 79. The district attorney
claimed that the witness expressed fear for her safety in preparation for trial.
See id. at 78. Smallwood’s counsel had no objection to the request, and it
was granted. See id. at 79-80.
The Sixth Amendment right to a public trial serves to benefit the accused
but it is not absolute. See Commonwealth v. Jordan, 212 A.3d 91, 101 (Pa.
Super. 2019). Courtrooms can be closed in situations to keep certain evidence
confidential or to preserve order and safety. See id. In the case of the latter,
trial courts have the responsibility to maintain control and security in their
courtroom and may place reasonable restrictions on its access, while
preserving fairness. See id. at 102. A Judge may close a courtroom if the
following circumstances exist: “(1) there is an overriding interest that is likely
to be prejudiced, (2) the closure is no broader than necessary to protect that
interest, (3) the trial court considers reasonable alternatives to closure, and
(4) the trial court makes findings adequate to support the closure.” Id. at 101(citations and internal quotation marks omitted). “[It] is the responsibility of
the [trial] court to maintain not only the control but also the security of the
courtroom[.]” Id. at 102.
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In reviewing an order to close a courtroom, we accept the trial court’s
factual findings if they are supported by the record. See id. at 102-103. In all
other respects, we review the order for an abuse of discretion. See id. at 103.
The trial court based its decision to grant the motion on the concern for
the safety of the witness, which was based on the fact that nature of the crime
was rooted in witness intimidation. See N.T., 2/5/15, at 80. Specifically, the
court found that
the Commonwealth’s theory in this case [is] that [Gresham] was
killed in retaliation for testimony by his friend against [Smallwood]
and then his friend was subsequently killed by allegedly
[Smallwood.] That is another trial coming up that we haven’t
heard yet. Because of the pattern of witness – it is more than
intimidation. It is kind of doing away with the witnesses in this
particular case, I will allow it for this witness.
See id. at 79-80. The trial court further reasoned that by only closing the
courtroom for one witness, who testified briefly following a lunch break, the
impact on the openness of the six-day trial was small. See Trial Court Opinion,
1/31/22, at 11.
We conclude the trial court’s findings are supported by the record and
therefore are binding upon us. Further, we conclude the trial court’s reasoning
did not represent an abuse of discretion. As such, Smallwood’s claim that
counsel was ineffective by not objecting fails because the underlying issue
lacks any arguable merit and counsel cannot be ineffective for failing to raise
meritless claims. See Commonwealth v. Natividad, 938 A.2d 310, 333 (Pa.
2007).
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Smallwood continues this argument to include PCRA counsel’s
ineffectiveness for failing to argue this issue to Smallwood’s satisfaction. See
Appellant’s Brief at 31-3. As a postconviction petitioner Smallwood is entitled
to effective representation and may raise claims of ineffectiveness in
postconviction representation on appeal. See Commonwealth v. Bradley,
261 A.3d 381, 391-2 (Pa. 2021). PCRA counsel did in fact raise the issue of
trial counsel’s ineffectiveness for failure to object to the clearing of the
courtroom in his amended petition. See Supplemental Amended Petition,
1/19/21, at ¶¶ 9-19. Smallwood argues that because the PCRA court did not
grant an evidentiary hearing on the issue, counsel raised it ineffectively. See
Appellant’s Brief at 32. Smallwood has no legal basis for this argument other
than bald claims of hypothetical additional case law PCRA counsel could have
cited in his argument. See id. This issue is meritless as PCRA counsel did raise
the claim and presented it in a comprehensive manner, citing legal authority
which closely mirrors Smallwood’s own framing of the argument on appeal. In
any event, as noted above, trial counsel was not ineffective in this respect,
and therefore Smallwood would have suffered no prejudice even if PCRA
counsel had failed to properly raise the issue before the PCRA court.
Next, Smallwood argues trial counsel was ineffective for not objecting
to the admission of Malik Martin’s out-of-court statements. See Appellant’s
Brief at 34. Smallwood claims that the statements were inadmissible hearsay
that violated his right to confrontation, and they did not fall under the
forfeiture by wrongdoing exception to hearsay. See id. at 34-7.
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Martin was a friend of Gresham who made statements to the police after
Gresham was killed. See N.T. 2/5/15, at 164. Most relevantly, Martin told
police detectives that he and Gresham had been “having problems with”
Smallwood and another man. See id. at 165. He indicated that he was
reluctant to have his statements recorded because he feared Smallwood and
the other man. See id. at 164. Martin was later shot to death and Smallwood
pled guilty to that murder after his conviction in this case. See
Commonwealth v. Smallwood, 598 EDA 2019 (Pa. Super. filed April 28,
2020) (unpublished memorandum).
First, we must note that Smallwood has misconstrued the
Commonwealth’s statements regarding the nature of the killing. Smallwood
argues the opening statement claimed his killing of Martin was out of revenge,
but a review of the record clarifies that the phrase in the opening statement
referred to the decedent, Gresham. See N.T., 2/3/15, at 47-52. The
Commonwealth alleged that the reason Smallwood killed Gresham, Martin’s
friend, was to get revenge on Martin for testifying against him in a prior case.
See id. There was a lengthy argument regarding the admissibility of Martin’s
statements in which counsel objected to their admissibility as hearsay and
specifically under the confrontation clause. See id. at 16. The court allowed
some statements in for a narrow purpose and stated that because Smallwood
allegedly was the reason that Martin was unavailable to testify, the statements
are admissible under the forfeiture by wrongdoing doctrine. See id. at 27.
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While counsel did object to the admission of the testimony generally as
hearsay and specifically under the confrontation clause, we will address his
failure to object to the use of the forfeiture by wrongdoing exception. Pa.R.E.
804(b)(6) provides an exception to the rule against hearsay when the
statement is “offered against a party that wrongfully caused – or acquiesced
in wrongfully causing – the declarant’s unavailability as a witness, and did so
intending that result”. This exception to hearsay ensures that when the
accused intentionally makes a witness unavailable to testify, he may not
succeed on a claim that his confrontation right has been violated. See
Commonwealth v. King, 959 A.2d 405, 416 (Pa. Super. 2008). In order to
find evidence admissible under this exception, the Commonwealth must show
that the accused was involved in making the declarant unavailable and did so
with the intent of removing him as a possible witness. See id. at 414.
Following argument, the trial court determined that Smallwood procured
Martin’s unavailability. See N.T., 2/3/15, at 27. This evidence was properly
admitted under the exception and the lack of a specific objection does not
render counsel ineffective as counsel cannot be found ineffective for failing to
make a meritless objection. See Natividad, 938 A.2d 310, 333 (Pa. 2007).
Further, Smallwood has failed to show prejudice from the admission of
Martin’s statements. Gresham’s girlfriend testified from personal knowledge
that Gresham and Martin were having problems with Smallwood around the
time of Gresham’s death. See N.T., 2/5/15 at 103-4. As such, this information
would have been before the jury in any event.
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Smallwood continues this argument to claim PCRA counsel was
ineffective due to his failure to articulate the basic principles of the forfeiture
by wrongdoing exception, thereby depriving Smallwood of relief. See
Appellant’s Brief at 41. As we have found that the underlying claim lacks merit
due to a lack of merit and further that Smallwood was not unfairly prejudiced
in any event, this layered ineffectiveness claim also lacks merit. Counsel
cannot be found ineffective for failing to raise meritless issues. See
Natividad, 938 A.2d 310, 333 (Pa. 2007).
Smallwood’s next claim is that trial counsel was ineffective for failing to
request a cautionary jury instruction regarding photographs admitted during
trial. See Appellant’s Brief at 43. Several crime scene photographs were
admitted during the testimony of a crime scene officer. See N.T. 2/4/15 at
71-100. Those photographs were referenced during the Commonwealth’s
closing argument and Smallwood argues that while the admissibility of the
photographs is not in question, trial counsel should have requested a
cautionary instruction to prevent the jury from being prejudiced by the
photographs. See Appellant’s Brief at 44.
Smallwood has failed to prove that he was prejudiced by the admission
of these crime scene photographs. In order to prove prejudice, Smallwood
must show that if counsel had requested the cautionary instruction, there was
a reasonable probability that result of the trial would have been different. See
Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014). Smallwood simply
opines that the jury was not informed of the appropriate use of the
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photographs in its deliberations and therefore, “may have been more inclined
to convict Smallwood of first degree murder.” See Appellant’s Brief at 47-48.
The photographs in question depict different views of the street where
Gresham was shot and the locations where fired cartridge casings and
personal items were found. See N.T., 2/4/15, at 71-100. There was a myriad
of other testimony establishing that Smallwood committed the crime,
including eyewitness testimony indicating that Smallwood shot Gresham. See
N.T., 2/3/15, 230-1. Further, the crime scene officer testified without the use
of the photographs regarding the scene and ballistics. See N.T., 2/4/15, at
69-71, 76-80, 82-5. There was expert firearms testimony describing the
ballistics evidence shown in the photographs. See id. at 135-55. Smallwood
has failed to prove the outcome of the trial would have been different had
counsel requested a cautionary instruction and, as such, this claim fails.
Smallwood next argues that PCRA counsel was ineffective for failing to
raise trial counsel’s ineffectiveness for failure to object to a statement made
by the Commonwealth during closing argument. See Appellant’s Brief at 51.
The statement Smallwood refers to is the Commonwealth’s assertion that
Smallwood’s DNA was on the 9-millimeter firearm recovered after Martin was
shot. See Appellant’s Brief at 52. Smallwood asserts that his DNA was not
found on the 9-millimeter firearm.
The Commonwealth concedes there was an error in this statement. See
Appellee’s Brief at 19. There were two firearms used in Martin’s shooting. See
id. At trial, counsel stipulated that the .357 revolver used in Martin’s shooting
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contained Smallwood’s DNA. See N.T., 2/9/15, at 29-30. The 9-millimeter
pistol was linked to Smallwood’s co-defendant in the Martin shooting. See id.
at 31-2. Trial counsel did not object to the closing argument and Smallwood
now argues trial counsel was ineffective for that failure.
Smallwood has failed to show prejudice resulting from trial counsel’s
failure to object. The misstatement in question relates to the murder of Martin,
not Gresham. The jury heard evidence relating to the murder of Martin only
for the purpose to show motive in the instant case. Smallwood fails to prove
that by mixing up the two guns, he was prejudiced. The alternative to such a
mix up is that the prosecutor displayed the correct gun, which was stipulated
to contain Smallwood’s DNA and used to kill Martin. Either way, Smallwood is
connected to the murder of Martin, information the jury weighed in
determining the outcome of this case. Smallwood has not shown that trial
counsel’s inaction caused the outcome of the trial to be different. As such, we
cannot conclude the PCRA court erred, as counsel cannot be ineffective for
failing to raise meritless claims. See Natividad, 938 A.2d 310, 333 (Pa.
2007).
Next, Smallwood argues that trial counsel was ineffective for failing to
request a mistrial when Smallwood was not present during voir dire. See
Appellant’s Brief at 57. Smallwood’s claim is based on an incident that
occurred as jurors were returning from a lunch break during trial. A member
of the court’s staff informed the court that a juror had revealed the incident
to him upon returning to the courthouse. While it is not explicit from the
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transcript, the PCRA court, who also sat as trial judge, notes that “[a]s a result
of this incident, all of the jurors were questioned by the court with the
attorneys present in chambers. [Smallwood’s counsel] … did not request the
presence of his client.” PCRA Court Opinion, 10/26/21 at 16.
Juror number four reported to the court that she observed two men
glaring at juror number nine as they were leaving the Reading Terminal
Market. See N.T., 2/9/15, at 88. She recognized one of the men as someone
who had been in the audience during the trial. See id. at 86. She informed
juror number nine and noted that duration of the men’s attention made her
feel uncomfortable. See id. at 89.
Juror number nine testified that juror number four alerted her to the
men staring at her. See id. at 93. She recognized the two men as part of the
audience during the trial. See id. She felt uncomfortable serving on the jury
after the encounter. See id. at 96.
The remainder of the jury was then polled regarding their knowledge of
the interaction. See id. at 98-120. The trial court decided to excuse juror
number nine and seat juror number thirteen. See id. at 120. Smallwood’s
counsel raised no objection.
Smallwood argues that he should have been present for the voir dire
and that juror number nine was improperly removed and counsel failed to
request a mistrial to rectify these errors. See Appellant’s Brief at 59-60.
The decision to remove a juror at any point of the proceeding lies within
the discretion of the trial court. See Commonwealth v. Marrero, 217 A.3d
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888, 890 (Pa. Super. 2019). When the trial court is faced with facts that
convince them of the juror’s inability to perform their role, they may remove
and replace the juror. See id. Here, the trial court was faced with a situation
where the juror in question was uncomfortable and felt unable to perform her
role as juror any longer. Reading a cold record, we cannot conclude that the
trial court erred in removing juror number nine under these circumstances.
Trial counsel’s request for a mistrial based on the removal would lack any
arguable merit and counsel cannot be ineffective for raising a meritless issue.
See Natividad, 938 A.2d 310, 333 (Pa. 2007).
Turning to the issue of Smallwood’s presence during the voir dire, there
is no arguable merit to the underlying claim. While Smallwood had a clear
right to participate in proceeding that impacted the composition of the jury,
the right was not compromised where his counsel participated and the court
was required to accommodate competing concerns such as the safety and
protection of the jury. See Commonwealth v. Hunsberger, 58 A.3d 32, 40
(Pa. 2012). Here, at a trial with a running theme of violence against witnesses,
the court needed to present a safe space for jurors to be candid about a
possible incident of juror intimidation. Smallwood’s counsel was present and
able to communicate to Smallwood anything of relevance from the in camera
hearing.
On appeal, Smallwood simply claims that if he was present, he may
have been able to provide information regarding the men who made juror
number nine feel uncomfortable. See Appellant’s Brief at 59. We, like the
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PCRA court, are unconvinced that Smallwood’s presence would have
benefitted in any way or changed the outcome. As trial counsel could not be
ineffective for failing to raise a meritless motion, the PCRA court did not err in
concluding trial was not ineffective. See Natividad, 938 A.2d 310, 333 (Pa.
2007).
Smallwood further argues that PCRA counsel was ineffective for failing
to argue this issue. See Appellant’s Brief at 57. The record reflects that PCRA
counsel did raise this issue, therefore Smallwood’s claim lacks merit. See
Supplemental Amended Petition, 2/10/21, at ¶¶ 8-18.
In Smallwood’s final issue he argues that trial counsel was ineffective in
failing to object to the trial court’s instruction on reasonable doubt which
deprived him of due process. See Appellant’s Brief at 65. Smallwood argues
that the trial court provided a hypothetical that amounted to a deficient
instruction on reasonable doubt, creating a structural error in the trial and
violating his right to due process. See id. at 65-6. The trial court recited the
standard jury instruction on reasonable doubt and then provided an example.
See N.T., 2/10/15, at 5-8; Pennsylvania Suggested Standard Criminal Jury
Instructions, § 7.01. The example provided was:
What I tell people, ladies and gentlemen, is this, if a reasonable,
sensible person were making a really important life decision,
certainly not an everyday decision like what to eat or what to
wear, that is of no importance, but a really important decision that
could change that person’s life, the kind of decision that a person
is really going to think hard about before they make it like whether
to have a very serious surgery. If that person gathers the
information to help them to make this decision, then deliberates
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upon it, considers all the various aspects, the pros, the cons, good
points, bad points and after that process, that person pauses,
hesitates cannot go forward in acting, that is what we call a
reasonable doubt.
N.T. 2/10/15 at 8-9.
Smallwood argues that the instruction allowed the jury to convict based
on a “degree of proof below” reasonable doubt. Appellant’s Brief at 67.
Smallwood relies on Brooks v. Gilmore, 2017 WL 3475475 (E.D. Pa. 2017),
for his assertion that this instruction allowed the jury to utilize a relaxed
standard of proof. See id.In Brooks, the trial court did not read the full standard jury instruction
but only a one-sentence excerpt from it before launching into a hypothetical
wherein it asked the jury to imagine someone “precious” to them was suffering
a “life-threatening” condition. See 2017 WL 3475475 at *3. The Brooks court
found this instruction to reasonably induce the jury to apply a standard lower
than reasonable doubt particularly due to its placing the jury in a proactive,
decision-making role to save the life of a loved one. See id. at 4-5. We note,
however, that Brooks is not binding precedent on this Court. See In re
Stevenson, 40 A.3d 1212, 1216 (Pa. 2012).
More importantly, our Supreme Court analyzed a similar reasonable
doubt instruction in Commonwealth v. Drummond. See 285 A.3d 625 (Pa.
2022). The trial court in Drummond issued a very similar instruction to the
“precious one” instruction in Brooks, calling upon the jury to imagine their
spouse, sibling or grandchild was facing a life-threatening condition. See id.
at 636. The Supreme Court concluded that the use of the hypothetical “would
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encourage the jury to resolve doubts, rather than assess the reasonableness
of the doubts and acquit if necessary.” Id. at 644-645 (internal quotation
marks omitted).
While the instruction used in Drummond differs from the one used
here, the overriding concern identified in Drummond applies with similar, if
not equal force. However, we need not reach the issue of whether the
instruction was erroneous, as we are not directly reviewing the propriety of
the instruction. Here, as in Drummond, we are faced with the question of
whether trial counsel was ineffective for failing to object to the instruction.
The Supreme Court in Drummond noted that no previous Pennsylvania court
had ever “invalidated jury instructions that used the hypotheticals which we
disapprove of today.” Id. at 646. As such, trial counsel
was under no reasonable obligation to raise a challenge to the
instruction, as any such objection would have lacked a then-
existing legal foundation. Counsel was not required to anticipate,
nor could he have foreseen, that this Court would find the
instruction to be constitutionally defective over a decade later.
Id.
Here, Smallwood’s trial was in 2015, five years later than the trial in
Drummond. However, Smallwood provides no reason why trial counsel
should have anticipated the outcome in Drummond seven years later. Even
the decision in Brooks was over two years after the instruction in this case.
We therefore conclude that counsel had no duty to raise an objection that had
no legal foundation in 2015. The PCRA court did not err in concluding that
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Smallwood did not establish trial counsel was ineffective under these
circumstances.
Finally, Smallwood has one outstanding Application for Relief before this
Court in which he has requested a correction to the docket which notes that
his reply brief was filed late. See Application for Relief, 4/3/23, ¶ 1. Smallwood
attached his cash slip indicating the date he placed the reply brief in the mail
at the prison. See id. at ¶ 5. Smallwood’s reply brief is deemed filed the day
he delivered it to prison officials pursuant to the prisoner mailbox rule. See
Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019).
Smallwood’s reply brief is deemed filed on March 9, 2023, the date on which
his extension of time to file expired, and was timely filed. See Order, 2/24/23.
After review, however, none of the arguments raised in the reply brief alter
our analysis of the issues on appeal.
Application for Relief granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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