Com. v. Jones, S.

J. S40008/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SAMUEL A. JONES, JR., : No. 901 WDA 2014
:
Appellant :

Appeal from the PCRA Order, April 28, 2014,
in the Court of Common Pleas of Cambria County
Criminal Division at No. CP-11-CR-0000750-2006

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 05, 2015

Samuel A. Jones, Jr., appeals from the order denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546.

Appellant was found guilty of 12 criminal charges following jury trial on

November 6, 2006, including conspiracy to commit robbery, robbery, theft

and receiving stolen property against two victims. A three-day jury trial was

held on November 2, 3, and 6, 2006. Appellant was tried along with

co-defendant, Otis Williams. Appellant was represented at trial by attorneys

Mary Elizabeth Schaffer and Richard Corcoran, of the Cambria County Public

Defender’s Office.

Both victims testified. Brian Woy testified that on the evening of

January 23, 2006, he and a friend, Bob Layton, went to the Fairfield Avenue

* Retired Senior Judge assigned to the Superior Court.
J. S40008/15

Lounge to shoot pool at approximately 11:00 p.m. Shortly after midnight,

they left the bar. When Woy was unlocking his car door, two black males

approached. The two men split up. The “shorter” male went to Woy’s side

and the “taller” one went to the passenger’s side, where Layton was

standing. The shorter black male pumped and then aimed a sawed-off

shotgun at Woy’s face. He said “this ain’t no fuckin joke; just give me your

fuckin money.” (Trial transcript, 11/2/06 at 50.) Woy complied and handed

over the contents of his pockets to the shorter male. Meanwhile, the taller

male said to Layton, “give me all you got.” (Id. at 91.) Layton complied

and gave him $25, a pack of cigarettes, and a lighter. The shorter male

grabbed the pool sticks off the roof of Woy’s car and the robbers fled. As

the robbers were fleeing, Woy witnessed the taller male grab the pool sticks

off the shorter male. (Id. at 70.) The shorter male got into the driver’s seat

of a white Jeep Cherokee, and the taller one ran towards an alley. Woy saw

a white female in the Jeep, and he was able to provide the license plate

number to the police. Neither victim could identify the robbers from a photo

line-up.

The Commonwealth presented the testimony of the officers involved in

the investigation who described how they located the Jeep. They also

described how a conversation with the registered owner of the Jeep led them

to Diana Hullenbaugh. Officer Gregory Keselyak testified that he observed

-2-
J. S40008/15

co-defendant Williams and Hullenbaugh together in the white Jeep

approximately 18 hours before the armed robbery.

Hullenbaugh testified that in the early afternoon of January 23, 2006,

she, Cynthia Rhoads, appellant, and co-defendant Williams were together

drinking and smoking crack at Williams’ apartment. Hullenbaugh testified

that Rhoads and Williams may have left to get money or beer and returned.

(Id. at 145.) She recalled that at one point she watched Williams’ children

when he left to go to Rhoads’ apartment. With regard to the times and

when and who may have left the apartment during the time the four were

together, Hullenbaugh testified that she did not remember “all the details of

everything that happened that day.” (Id. at 183.)

She did recall that later that evening, the foursome decided to travel

together to a bar to purchase more beer. Hullenbaugh drove the foursome

in a borrowed white Jeep Cherokee and parked in the parking lot of

Zeke’s Pizza near the Fairfield Avenue Lounge. The women waited in the

vehicle while the men went to purchase beer. Suddenly, according to

Hullenbaugh, the men ran back towards the car. Appellant smacked the

driver’s side window as he ran by and said “Come on.” (Id. at 151.)

Appellant continued to run down the alley by Zeke’s Pizza. Williams came

back to the Jeep and shouted for Hullenbaugh to move. She jumped into

the backseat, and Williams got into the driver’s seat and proceeded to drive.

The Jeep stopped to pick up appellant a few blocks away. When appellant

-3-
J. S40008/15

got back into the car, he had two pool sticks. Although neither man would

tell her what just happened, “it was obvious that they had something that

did not belong to them.” (Id. at 155.) Hullenbaugh testified that she was

upset and that she “didn’t want to be a part of it” and just wanted out of the

vehicle. (Id.) The Jeep was abandoned on a street near the Oakhurst

housing project, and the four occupants went their separate ways.

Hullenbaugh testified that later that same night, she and Williams searched

together for the Jeep, hoping to return it to its owner before it could be

seized by police. However, police had located and impounded the Jeep

shortly after it was abandoned. Hullenbaugh testified that she was not

charged with any crime.

The other female in the Jeep was Cynthia Rhoads. She did not appear

at the trial pursuant to her subpoena. The Commonwealth was compelled to

issue a material witness subpoena to Rhoads. She was questioned outside

of the presence of the jury as to why she did not voluntarily comply with the

subpoena to attend. Rhoads testified that she feared for her safety because

co-defendant Williams’ girlfriend “Tammy” told her she had better not show

up at the trial to testify or there would be “trouble.”

Appellant’s counsel, Attorney Schaffer, argued that she should be

permitted to cross-examine Rhoads in the presence of the jury as to her

non-appearance.

We have an absolute right to cross -- confront the
witnesses when it goes to impeachment and bias for

-4-
J. S40008/15

her testimony. We have an absolute right to inquire
into why she might be testifying for the
Commonwealth and why she didn’t appear yesterday
and she had to go to jail to testify.

Id. at 30-31. The trial court did not permit the inquiry because evidence of

witness tampering would have disadvantaged appellant. (Id. at 33.)

Rhoads’ account of what happened was basically the same as

Hullenbaugh’s version of events. She testified that the four spent the

afternoon and evening together. She testified that she may have left the

group at one point to borrow money from someone to buy beer, and

Williams may have left the apartment briefly to buy beer. Rhoads testified

that the four left together to get beer and parked in front of Zeke’s Pizza.

She testified that when appellant and co-defendant Williams got out of the

Jeep, she believed they were going to get beer. Rhoads testified when the

two men got back into the Jeep, they were “hyper.” She also confirmed that

appellant returned to the car carrying pool sticks. In addition, Rhoads

testified that co-defendant Williams later brought a sawed-off shotgun to her

apartment and that she refused to let him hide it there. She testified that

she was given nothing in exchange for her testimony. (Id. at 76.)

Detective Lawrence Wagner, the detective in charge of the

investigation, described what the victims reported to him and the details of

his investigation. Attorney Schaffer objected to Detective Lawrence’s

testimony as inadmissible because:

-5-
J. S40008/15

Woy and Layton already testified. Detective Wagner
sat in this courtroom the entire time. He is
rehashing what . . . he’s going to clear up all their
inconsistent statements, so I would just note for the
record that this testimony is not permissible. They
testified. The jury can make their own
determinations. He can’t comment on what they told
him.

Id. at 85. The objection was denied.

The Commonwealth also presented the testimony of Denny Barnes

who testified that co-defendant Williams came to his house on January 23,

2006, during the early evening hours, and asked him if he wanted to buy a

sawed-off shotgun for $75. Barnes’ aunt, Nannette Casado, corroborated

Barnes’ testimony. After the robbery, she called Detective Wagner and

reported that Williams was at her house trying to sell Barnes a sawed-off

shotgun.

Co-defendant Williams testified in his own defense and provided an

alibi for himself and appellant. According to Williams, both men were at

Edder’s Den, a bar near the public housing complex where they lived, at the

time of the armed robbery and, therefore, could not have been the

perpetrators. Williams’ alibi was corroborated by Allen Hinton, who

confirmed that both Williams and appellant were at Edder’s Den that

evening.

The jury found appellant and co-defendant Williams guilty of all

charges. Appellant was sentenced on December 19, 2006.

-6-
J. S40008/15

On January 23, 2007, appellant filed a direct appeal to this court. In

an unpublished memorandum opinion dated February 19, 2008, this court

found appellant’s issues were waived due to counsel’s failure to develop

arguments and/or point to where and how the issues were preserved.

Commonwealth v. Jones, No. 188 WDA 2007, unpublished memorandum

(Pa.Super. filed February 19, 2008).

On December 26, 2008, appellant filed a PCRA petition and argued,

inter alia,1 that his trial counsel, Attorney Schaffer, was ineffective because

she waived his appellate rights because she did not appeal this court’s

February 19, 2008, decision to the Pennsylvania Supreme Court.

(Docket #54.) After a hearing on March 10, 2009, the trial court vacated

appellant’s sentence after realizing that it had erred in imposing appellant’s

original sentence. The trial court resentenced appellant to an aggregate

term of 7 to 22½ years’ imprisonment. The PCRA court also determined that

Attorney Schaffer was ineffective for failing to file a petition for allowance of

appeal to our supreme court. The PCRA court did not address or conduct a

hearing on appellant’s remaining claims. The PCRA court reinstated

appellant’s direct appeal rights as well as his right to file post-sentence

1
Those additional claims included: ineffective assistance of counsel for
(1) failing to raise alibi defense; (2) failure to confront/impeach witness;
(3) failure to introduce exculpatory evidence (Walmart receipt); (4) failure to
file a pre-trial motion to sever his trial from trial of his co-defendant
Williams.

-7-
J. S40008/15

motions. (Trial court order, 3/10/09 (Docket #67).) New counsel,

John Lovette, Esq., was appointed.

On March 20, 2009, appellant filed post-sentence motions with the

trial court pursuant to Rule 720 of the Rules of Criminal Procedure. Those

motions included: (1) a motion for judgment of acquittal on the grounds

that appellant’s conviction was based solely on the contradictory and

inconsistent testimony of Hullenbaugh and Rhoads which was not sufficient

to sustain the conviction entered; (2) a motion for a new trial because the

verdict was against the weight of the evidence, which was also based on

appellant’s contention that the testimony of Hullenbaugh and Rhoads was

inconsistent and contradictory and not sufficient to sustain the conviction

entered; and (3) a motion for a new trial based on ineffective assistance of

counsel for failing to: (a) present defense witnesses, John Gordon and

Harry Hinton (Allen Hinton’s brother); (b) present an alibi witness,

Bre Burchin; (c) request severance of appellant’s trial from that of

co-defendant Williams; and (d) introduce exculpatory evidence, namely, a

Walmart receipt which would have impeached Hullenbaugh. (Docket #70.)

A hearing was held on May 12, 2009. Appellant testified that he

informed Attorney Schaffer of an alibi witness, Bre Burchin. He testified that

Attorney Schaffer failed to call Burchin at trial. Appellant admitted that

Burchin was alive but not present at the hearing. Appellant further testified

that he provided Attorney Schaffer with the names of Harry Hinton and

-8-
J. S40008/15

John Gordon who overheard Hullenbaugh threaten appellant that she would

implicate him in a robbery if appellant did not give Hullenbaugh drugs and

money. Attorney Schaffer, however, did not present the testimony of either

of these witnesses at trial. Neither Gordon nor Harry Hinton appeared at the

post-sentence motion hearing. Appellant’s counsel represented to the court

that he attempted to subpoena Harry Hinton and Gordon; however, he was

unable to locate either of them. Appellant also testified that

Attorney Schaffer failed to introduce a Walmart receipt dated January 23,

2006, which would have placed Hullenbaugh on the “east side” of town at

4:41 p.m. when she testified she was with appellant at co-defendant’s house

25 minutes away on the “west side” of town from midafternoon until

10:00-10:30 p.m. Appellant testified that Attorney Schaffer was aware of

the Walmart receipt, but she never used it at trial to impeach Hullenbaugh.

(Post-sentence motions hearing transcript, 5/12/09 at 1-17.)

The Commonwealth called Attorney Schaffer. She testified that the

investigator for the public defender’s office contacted Burchin, who

“indicated she would not lie for [appellant] and would not help us out.” (Id.

at 28.) Attorney Schaffer stated that she relayed that information to

appellant. Attorney Schaffer also testified that numerous times during the

trial, she requested to sever appellant’s trial from his co-defendant’s. As to

the Walmart receipt, Attorney Schaffer testified that she never saw that

receipt before and appellant did not ask her to use it prior to trial. (Id. at

-9-
J. S40008/15

33.) Finally, Attorney Schaffer testified that she was not made aware that

Harry Hinton and Gordon heard Hullenbaugh threaten appellant.

The trial court denied appellant’s post-sentence motions on June 1,

2009. (Docket #78.) Appellant appealed from the judgment of sentence.

Once again, this court found that appellant’s counsel had waived all of his

issues, this time due to lack of specificity of his Rule 1925(a) statement. We

affirmed judgment and recommended that appellant file a PCRA petition

alleging a “layered” claim of ineffectiveness so that the PCRA court could

examine whether appellate counsel was ineffective for failing to raise trial

counsel’s ineffectiveness. Commonwealth v. Jones, No. 1115 WDA 2009,

unpublished memorandum (Pa.Super. filed August 5, 2010). Appellant

petitioned for allocatur which was denied on June 20, 2011. (Docket #92.)

On February 21, 2012, appellant, pro se, filed a PCRA petition. He

raised claims of ineffectiveness of trial counsel for: (1) failing to produce an

alibi witness; (2) failure to request a “corrupt source” jury instruction;

(3) failure to utilize the Walmart receipt to impeach Hullenbaugh; and

(4) failure to question Hullenbaugh and Rhoads as to whether they received

leniency or immunity from the Commonwealth in exchange for their

testimony. Appellant also raised a layered claim of ineffective assistance of

appellate counsel for his failure to preserve issues of trial counsel’s

ineffectiveness on direct appeal. (Docket #93.)

- 10 -
J. S40008/15

The trial court treated appellant’s February 21, 2012 PCRA petition as

appellant’s “second” PCRA petition and concluded that appellant failed to

make a prima facie showing of a miscarriage of justice. Commonwealth

v. Davis, 816 A.2d 1129 (Pa.Super. 2003). The trial court did not appoint

counsel but instead issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

appellant’s petition without a hearing. When appellant did not respond to

the notice, the court dismissed his petition. (Docket #94.)

Appellant timely appealed to this court pro se. In a memorandum

dated July 12, 2013, this court found that the trial court erroneously treated

appellant’s February 21, 2012 PCRA petition as his “second” petition, rather

than his first,2 and failed to appoint PCRA counsel even though appellant was

indigent. This court vacated the trial court’s order and remanded for further

proceedings. Commonwealth v. Jones, No. 713 WDA 2012, unpublished

memorandum (Pa.Super. filed July 12, 2013).

New PCRA counsel was appointed. On December 13, 2013, appellant

filed the amended first PCRA petition which is at issue in this appeal.

Appellant raised the following errors: (1) error of the trial court in joining

his trial with co-defendant Williams; (2) error of the trial court in giving an

2
The PCRA petition filed on December 26, 2008, resulted in his direct appeal
rights being reinstated. Consequently, the PCRA court should have
considered appellant’s February 21, 2012 pro se PCRA petition as his first.
Commonwealth v. Vega, 754 A.2d 714 (Pa.Super. 2000). The PCRA
petition at issue, although amended, is appellant’s first PCRA petition. We
have not considered the merits of any of appellant’s issues previously.

- 11 -
J. S40008/15

inadequate jury charge relative to the joinder; (3) error of the trial court in

limiting cross-examination of Cynthia Rhoads on a material witness warrant;

(4) ineffective trial counsel assistance in failing to ask for severance;

(5) ineffective trial counsel assistance in failing to request a limiting

instruction regarding prejudicial evidence admissible only against the

co-defendant; (6) ineffective trial counsel assistance in failing to

cross-examine witnesses Diane Hullenbaugh and Cynthia Rhoads regarding

immunity or leniency; (7) ineffective trial counsel assistance in failing to

request sequestration of Detective Lawrence Wagner; (8) ineffective trial

counsel assistance in failing to request a “polluted source” instruction;

(9) ineffective trial counsel assistance in failing to subpoena Harry Hinton as

a defense witness and failing to disclose that Harry Hinton was at that time

also represented by Attorney Schaffer; (10) ineffective trial counsel

assistance in failing to locate and interview witnesses to corroborate the alibi

offered by co-defendant Williams as corroborated by Allen Hinton that both

appellant and Williams were at Edder’s Den at the time of the robbery;

(11) ineffective trial counsel assistance in failing to present evidence of the

Walmart receipt to impeach Hullenbaugh; and (12) cumulative ineffective

trial counsel assistance resulting in prejudice.

A PCRA hearing was held on January 15, 2014. Appellant presented

no witnesses. He did testify on his own behalf. Appellant testified that he

asked Attorney Schaffer to subpoena Harry Hinton, who allegedly overheard

- 12 -
J. S40008/15

Diana Hullenbaugh threaten to implicate appellant in “another robbery.”

(PCRA hearing transcript, 1/15/14 at 20.) Two weeks later, Hullenbaugh

gave police a statement about appellant’s involvement in the robbery, which

led to his conviction in this case. The Commonwealth presented the

testimony of trial counsel, Attorney Corcoran and Attorney Schaffer. Neither

attorney knew of any deal that the Commonwealth had with Rhoads or

Hullenbaugh or if the Commonwealth was offering immunity to these two

women in exchange for their testimony. (Id. at 9.)

On April 28, 2014, the trial court denied the PCRA petition. On appeal,

appellant raises the following issues:

1. Whether the PCRA Court erred and abused its
discretion by failing to find the trial court
improperly joined co-defendant Otis Williams
for trial because the majority of the evidence
presented at the joint trial, the testimony of
witnesses Keselyak, Barnes, Cassado,
Hullenbaugh, and Rhoads, was only admissible
against defendant Williams, yet highly
prejudicial to Appellant, and the jury could not
have reasonably been expected to separate
said evidence?

2. Whether the PCRA Court erred and abused its
discretion by failing to find the trial court gave
an inadequate jury instruction regarding the
joinder of the trials and which evidence was
admissible against defendant Williams but not
Appellant, which allowed the jury to consider
inadmissible and highly prejudicial evidence
against the Appellant, which resulted in
Appellant’s conviction?

3. Whether the PCRA Court erred and abused its
discretion by failing to find the trial court erred

- 13 -
J. S40008/15

by limiting Appellant’s cross-examination of
witness Rhoads regarding her initial failure to
appear to testify, which thereby violated
Appellant’s constitutional right to confront
witnesses against him?

4. Whether the PCRA Court erred and abused its
discretion by failing to find trial counsel
ineffective for failing to file a pre-trial motion
to sever the trials and preserve the issue,
because of the prejudicial nature of the
evidence that was only admissible against
co-defendant Williams?

5. Whether the PCRA Court erred and abused its
discretion by failing to find trial counsel
ineffective for failing to request the appropriate
limiting instruction regarding the prejudicial
evidence only admissible against co-defendant
Williams, as the record clearly shows that had
the evidence been considered only against
co-defendant Williams, the outcome of the trial
would have been different with regard to
Appellant?

6. Whether the PCRA Court erred and abused its
discretion by failing to find trial counsel
ineffective for failing to properly cross-examine
witnesses Hullenbaugh and Rhoads regarding
expectations of immunity/leniency, as the
evidence clearly showed that had trial counsel
done so, the outcome of the trial probably
would have been different?

7. Whether the PCRA Court erred and abused its
discretion by failing to find trial counsel
ineffective for failing [to] offer a timely request
to sequester witness Detective Lawrence
Wagner, as Detective Wagner did not testify
from personal knowledge, and only served to
improperly bolster other Commonwealth
witnesses?

- 14 -
J. S40008/15

8. Whether the trial court erred/abused its
discretion in finding the jury instructions were
“more than fair,” thus, trial counsel was not
ineffective for requesting a “polluted source”
instruction, since the record demonstrates that
had the instruction been requested and given,
there was a reasonable probability the
outcome would have been different?

9. Whether the trial court erred/abused its
discretion by failing to find trial counsel
ineffective for failing to call witness
Harry Hinton in support of Appellant’s defense?

10. Whether the trial court erred/abused its
discretion by failing to find trial counsel
ineffective for failing to inform Appellant that
she represented Mr. Hinton and had a conflict
of interest?

11. Whether the trial court erred and abused its
discretion by finding the alibi defense was
“adequately presented” to the jury and trial
counsel was not ineffective for failing to fully
investigate Appellant’s alibi, given that the
record does not support such a finding, as
testimony from the trial indicates the existence
of many potential witnesses that could have
refuted the Commonwealth’s witnesses but
were not contacted by Appellant’s trial
counsel?

12. Whether the trial court erred and abused its
discretion by accepting trial counsel’s assertion
that she had never seen the Wal-Mart receipt
and failing to find trial counsel ineffective for
failing to present evidence to impeach witness
Hullenbaugh, given the receipt was a key piece
of physical evidence that refuted the
Commonwealth’s theory of the crime, and trial
counsel could not have credibly testified that
she never saw it?

- 15 -
J. S40008/15

13. Given the record shows it was filed one day
past the appeal period, and Mr. Jones’s counsel
acted to file the appeal as soon as Mr. Jones’s
[sic] notified him of his desire to appeal, but
his letter to his counsel was delayed due to the
fact of Mr. Jones’s incarceration in a distant
state correctional institution, should the [sic]
Mr. Jones’s appeal be deemed untimely?

Appellant’s brief at 1-4.

Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination and whether

the PCRA court’s determination is free from error. Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

Moreover, as most of appellant’s issues on appeal are stated in terms

of ineffective assistance of counsel, we also note that appellant is required to

make the following showing in order to succeed on such a claim: (1) that

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) that, but for the

errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any

prong of this test will cause the entire claim to fail. Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed

- 16 -
J. S40008/15

to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

We find no error in the PCRA court’s holding. After a thorough review

of the record, the briefs of the parties, the applicable law, and the

well-reasoned opinion of the PCRA court, it is our determination that there is

no merit to the questions raised on appeal.

Before addressing the merits of appellant’s appeal, we will address the

timeliness of appellant’s appeal. Appellant asserts that his appeal to this

court was timely even though it was filed one day past the 30-day appeal

period. A review of the trial court docket shows that the trial court denied

appellant’s amended PCRA petition on April 28, 2014. However, the opinion

and order did not contain a notice that appellant was required to file an

appeal within 30 days. In In the Interests of J.M.P., 863 A.2d 17, 20

(Pa.Super. 2004), appeal denied, 878 A.2d 864 (Pa. 2005), we declined to

quash an untimely appeal where the juvenile court’s order did not explicitly

inform J.M.P. that he had 30 days in which to file an appeal, nor did it

reference Pa.R.A.P. 903(a), which states that an appeal must be filed within

30 days after the entry of the order from which the appeal is taken. See

also Commonwealth v. Wright, 846 A.2d 730 (Pa.Super. 2004) (where a

PCRA court restores a defendant’s direct appeal rights nunc pro tunc, the

court must inform the defendant that the appeal must be filed within

30 days of the entry of the order); Commonwealth v. Bogden, 528 A.2d

- 17 -
J. S40008/15

168 (Pa.Super. 1987) (holding that an appeal would not be quashed as

untimely when trial court misinformed the defendant by not advising him

that an appeal had to be taken within 30 days of the imposition of

sentence); Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa.Super. 2001)

(declining to quash the appeal where failure to file a timely appeal was the

result of the court’s misstatement of the appeals period, i.e., a breakdown in

the court's operation). Here, it is undisputed that the PCRA court’s order did

not inform appellant of his appeal rights. We decline to quash this appeal as

untimely in these circumstances.3

In Issues 1 through 3, appellant incorrectly frames the issues as trial

court error. The PCRA procedurally bars claims of trial court error by

requiring a petitioner to show the allegation of error is not previously

litigated or waived. 42 Pa.C.S.A. §§ 9543(a)(3), 9544. At the PCRA stage,

claims of trial court error are either previously litigated (if raised on direct

appeal) or waived (if not). See Commonwealth v. Spotz, 18 A.3d 244,

260-261, 270 (Pa. 2011). Trial court error may constitute the arguable

merit prong of an ineffective assistance of counsel claim, but the issue must

be framed properly for a petitioner to be entitled to relief. See

3
We note that on May 22, 2014, appellant sent a letter from a State
Correctional Institution located in Albion to the Cambria County
Prothonotary, which requested that his attorney file an appeal on his behalf.
The Prothonotary immediately forwarded the letter to counsel who filed a
notice of appeal on May 29, 2014.

- 18 -
J. S40008/15

Commonwealth v. Paddy, 15 A.3d 431, 449 n.11 (Pa. 2011). Accordingly,

these issues fail.

In Issue 4, appellant contends that trial counsel was ineffective for

failing to file a pre-trial motion to sever his trial from the trial of his

co-defendant Williams. Appellant alleges that the joint trial resulted in

actual prejudice and, in fact, was a substantial factor in bringing about his

conviction. He contends that the bulk of the Commonwealth’s evidence

related only to Williams, including: (1) the testimony of Officer Keselyak

who testified that Hullenbaugh and co-defendant Williams were together in

the white Jeep on the day before the robbery; (2) the testimony of Barnes

and Cassado that Williams offered to sell a sawed-off shotgun hours or

days before the armed robbery; and (3) the testimony of Rhoads that

co-defendant Williams asked to stash a sawed-off shotgun at her

apartment days after the crime.

Our supreme court, considering Pa.R.Crim.P. Rules 582 and 583

together, set forth the following three-part test for deciding a motion to

sever:

Where the defendant moves to sever offenses not
based on the same act or transaction that have been
consolidated in a single indictment or information, or
opposes joinder of separate indictments or
informations, the [trial] court must . . . determine:
[1] whether the evidence of each of the offenses
would be admissible in a separate trial for the other;
[2] whether such evidence is capable of separation
by the jury so as to avoid danger of confusion; and,
if the answers to these inquiries are in the

- 19 -
J. S40008/15

affirmative, [3] whether the defendant will be unduly
prejudiced by the consolidation of offenses.

Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997), citing

Commonwealth v. Lark, 543 A.2d 491, 496-497 (Pa. 1988).

In addition, it is well established that “the law favors a joint trial when

criminal conspiracy is charged.” Commonwealth v. Housman, 986 A.2d

822, 835 (Pa. 2009). We have explained:

A joint trial of co-defendants in an alleged
conspiracy is preferred not only in this
Commonwealth, but throughout the United States.

It would impair both the efficiency and the
fairness of the criminal justice system to require . . .
that prosecutors bring separate proceedings,
presenting the same evidence again and again,
requiring victims and witnesses to repeat the
inconvenience (and sometimes trauma) of testifying,
and randomly favoring the last tried defendants who
have the advantage of knowing the prosecution’s
case beforehand. Joint trials generally serve the
interests of justice by avoiding inconsistent verdicts
and enabling more accurate assessment of relative
culpability.

Commonwealth v. Colon, 846 A.2d 747, 753-754 (Pa.Super. 2004)

(citations omitted).

When a conspiracy is alleged, a separate trial for co-defendants should

only be granted where the two defenses are “irreconcilable and exclusive”

and “conflict at the core.” Commonwealth v. Presbury, 665 A.2d 825,

827 (Pa.Super. 1995).

- 20 -
J. S40008/15

Here, the conspiracy crimes charged against each defendant were

identical. They arose out of the same facts. The Commonwealth averred

that appellant and co-defendant Williams conspired to commit a robbery.

Their defenses did not conflict but were identical. Both denied involvement.

Co-defendant Williams testified that he and appellant were at Edder’s Den

and, therefore, could not have been the perpetrators. Alibi witness,

Allen Hinton, corroborated Williams’ testimony that both were at

Edder’s Den.

Moreover, to succeed on this issue, appellant must show “a real

potential for prejudice and not just mere speculation.” Commonwealth v.

Rivera, 773 A.2d 131, 137 (Pa. 2001). The Commonwealth presented the

testimony of Hullenbaugh and Rhoads which placed both appellant and

co-defendant Williams at the scene of the crime and appellant in possession

of the pool sticks when he got back into the Jeep. Even without the

evidence of co-defendant Williams’ attempts to stash and sell the sawed-off

shotgun, there was overwhelming evidence which implicated appellant in the

robbery. Hullenbaugh and Rhoads gave identification testimony that was

positive and unequivocal. We agree with the PCRA court that appellant has

failed to demonstrate that he was prejudiced by counsel’s failure to move for

severance before trial.

If it is clear that Appellant has not demonstrated that
counsel’s act or omission adversely affected the
outcome of the proceedings, the claim may be
dismissed on that basis alone and the court need not

- 21 -
J. S40008/15

first determine whether the first and second prongs
[of the ineffectiveness test] have been met.

Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998). Therefore,

this claim fails.

In Issue 5, appellant asserts that trial counsel was ineffective for

failing to request the appropriate limiting instruction regarding the

prejudicial evidence admissible only against co-defendant Williams.

Appellant contends that trial counsel should have requested the court to

instruct the jury that some of the evidence may be admissible as to one

defendant, but not to the other. He contends that the jury was “left to

consider all of the evidence against both defendants when it was

impermissible to do so.” (Appellant’s brief at 11.)

We do not agree that such a limiting instruction would have changed

the outcome of the case. Again, the evidence against appellant was

overwhelming. The evidence pertaining to co-defendant Williams’ particular

role in the robbery was clearly capable of separation by the jury and easily

compartmentalized. There was no reasonable ground to find that the jury

could not keep separate what was relevant to each defendant. Moreover,

the trial court did instruct the jury that it was not necessary that it reach

consistent verdicts as to appellant and co-defendant Williams. (Trial

transcript, 11/6/06 at 89.) The trial court instructed the jury that it must

evaluate the evidence to determine if the Commonwealth met its burden of

proof as to each defendant. (Id.) We conclude, when the instructions to

- 22 -
J. S40008/15

the jury are considered as a whole, appellant failed to establish that he

suffered prejudice which would entitle him to relief. His ineffectiveness

claim, therefore, fails.

In Issue 6, appellant contends that trial counsel was ineffective for

failing to properly cross-examine Hullenbaugh and Rhoads regarding

expectations of leniency and immunity in exchange for their testimony. This

issue is without merit. Both public defenders testified at the PCRA hearing

that they were not aware of any deal by the Commonwealth to offer either

Hullenbaugh or Rhoads leniency or immunity in exchange for their

testimony. Further, Rhoads did testify that she was not offered anything in

exchange for her testimony, and Hullenbaugh testified that she was not

charged with any crime. Therefore, this claim of ineffectiveness fails.

In Issue 7, appellant asserts that trial counsel was ineffective for

failing to request to sequester Detective Wagner. “The purpose of

sequestration of witnesses is to reduce the possibility that a witness may,

from what he hears in the courtroom, improperly mold his testimony to fit

some plan not riveted to the standards of truth.” Commonwealth v.

Fawcett, 443 A.2d 1172, 1173-74 (Pa.Super. 1982), quoting

Commonwealth v. Smith, 225 A.2d 691, 694 (Pa. 1967). Appellant

contends that Detective Wagner did not testify from personal knowledge and

only served to improperly bolster other Commonwealth witnesses. We have

carefully reviewed Detective Wagner’s testimony and find that he testified

- 23 -
J. S40008/15

from his personal knowledge. Detective Wagner testified from his police

report and gave a detailed explanation of his investigation, what he learned

from the reports of the officers on the scene, and his personal interviews of

the victims and witnesses. There is nothing to support appellant’s

contention that his testimony was influenced by what he heard in the

courtroom. He was well aware of the facts prior to the trial. He prepared

the witness statements of Hullenbaugh and Rhoads, which were signed by

them. He was extensively cross-examined. In any event, we find that there

was sufficient other evidence to sustain the verdict since Hullenbaugh and

Rhoads were unequivocal in their identification of appellant as one of the

robbers. Appellant has thus failed to establish that but for this alleged error

there was a reasonable probability that the outcome of the proceedings

would have been different.

In Issue 8, appellant contends that trial counsel was ineffective for

failing to request a “polluted source” instruction and the trial court did not

give one. Therefore, the jury did not take into account the possibility that

the testimony of accomplices was tainted. Contrary to appellant’s

contention, the trial court gave a polluted source instruction and instructed

the jury:

[T]he special rules that you would have to apply if
you decide that one or both of them [Hullenbaugh
and Rhoads] was an accomplice are as follows:
First, you should view the testimony of an
accomplice with disfavor because it comes from a
corrupt and polluted source. Two, you should

- 24 -
J. S40008/15

examine the testimony of that accomplice closely
and only accept it with care and caution. Third, you
should consider whether the testimony of an
accomplice is supported in whole or in part by other
evidence.

Accomplice testimony is more dependable if it
is supported by independent evidence. However,
even if there is no independent supporting evidence,
you may find the defendants guilty solely on the
basis of accomplice testimony if, after using these
special rules I just told you about, you’re satisfied
beyond a reasonable doubt that the accomplice
testified truthfully and that the defendants are guilty.

Trial testimony, 11/2/06 at 71. Counsel will not be deemed ineffective for

failing to raise a meritless objection to proper jury instructions.

In Issue 9, appellant argues that trial counsel was ineffective for failing

to call defense witness Harry Hinton who would have testified that he

overheard Hullenbaugh say to appellant that she would testify against him if

he did not provide her with drugs and money. Appellant also contends that

trial counsel was ineffective because she did not inform appellant that she

represented Harry Hinton and had a conflict of interest.

Appellant failed to establish the witness was known or should have

been known to counsel. To prevail on an ineffectiveness claim for failure to

call a witness, appellant must prove: (1) the witness existed; (2) the

witness was available; (3) trial counsel knew or should have known of the

witness’ existence; (4) the witness was prepared to cooperate and would

have testified on appellant’s behalf; and (5) absence of the witness’

- 25 -
J. S40008/15

testimony prejudiced appellant. Commonwealth v. Pursell, 724 A.2d 293

(Pa. 1999), cert. denied, 528 U.S. 975 (1999).

Here, Attorney Schaffer testified at the PCRA hearing that she was not

aware that Harry Hinton allegedly overheard Hullenbaugh threaten

appellant. The PCRA court credited Attorney Schaffer’s testimony.

Accordingly, appellant failed to establish the witness was known or should

have been known to counsel. Accordingly, this claim fails.

In Issue 10, appellant asserts that trial counsel was ineffective

because she did not present his alibi defense, and if she would have,

appellant would have been acquitted. Appellant asserts that he told

Attorney Schaffer about an alibi witness, Burchin, who would have testified

that appellant was with her at the time of the robbery. To show

ineffectiveness for not presenting alibi evidence, appellant must establish

that counsel could have no reasonable basis for his act or omission.

Commonwealth v. Carpenter, 725 A.2d 154, 163 (Pa. 1999). A

reasonable basis for not introducing this purported alibi evidence is readily

apparent from the record. At the PCRA hearing, Attorney Schaffer testified

that her investigator contacted Burchin, who indicated that she would not lie

for appellant and would not help appellant at the trial. Counsel was not

ineffective for declining to present an alibi witness who contradicted

appellant’s own statements. See Commonwealth v. Hardcastle, 701 A.2d

541, 545 n.4 (Pa. 1997).

- 26 -
J. S40008/15

In Issue 11, appellant contends that trial counsel was ineffective

because she failed to present a Walmart receipt with Hullenbaugh’s account

number, which was time-stamped 4:41 in the afternoon, which would have

directly refuted evidence that the foursome were together at the housing

complex from early afternoon until just before midnight.

This court has recognized that the reasonableness of counsel’s

investigative decisions can depend critically upon information that his client

relates to him. See Commonwealth v. Williams, 846 A.2d 105, 113 (Pa.

2004); Commonwealth v. Bond, 819 A.2d 33, 45 (Pa. 2002), citing

Commonwealth v. Uderra, 706 A.2d 334, 340-341 (Pa. 1998),

cert. denied, 526 U.S. 1070 (1999); Commonwealth v. Peterkin, 513

A.2d 373, 383 (Pa. 1986), cert. denied, 479 U.S. 1070 (1987). “Thus,

assuming a reasonable investigation, where there is no notice to counsel of

particular mitigating evidence, he cannot be held ineffective for failing to

pursue it.” Commonwealth v. Basemore, 744 A.2d at 735, citing

Commonwealth v. Howard, 719 A.2d 233, 238 (Pa. 1998).

Attorney Schaffer testified at the May 12, 2009 PCRA hearing that she

never saw the Walmart receipt before and appellant did not ask her to use it

prior to trial. The PCRA court credited her testimony. Counsel cannot be

held ineffective for failing to pursue evidence of which she had no notice. In

any event, appellant failed to show that admission of the Walmart receipt

would have changed the outcome of the trial. With regard to the times and

- 27 -
J. S40008/15

when and who may have left the apartment during the time the four were

together, Hullenbaugh testified that she did not remember all the details of

everything that happened that day. Neither woman testified that they were

with appellant and co-defendant Williams uninterrupted from early afternoon

until midnight. Rhoads testified that at one point the foursome were in her

apartment and at other times they were in Williams’ apartment and that

members of the group left at various points and returned. The Walmart

receipt does not necessarily contradict their testimony.

Accordingly, having found no merit in the issues on appeal, we will

affirm the order below.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/5/2015

- 28 -