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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN IN
Appellant No. 3021 EDA 2013
Appeal from the PCRA Order October 11, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0004829-2007
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 26, 2016
Appellant John In appeals from the October 11, 2013 order of the
Court of Common Pleas of Philadelphia County (“PCRA court”), which denied,
without an evidentiary hearing, his request for collateral relief under the Post
Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we
vacate and remand.
The facts and procedural history underlying this appeal are
undisputed.1
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*
Retired Senior Judge assigned to the Superior Court.
1
Unless otherwise specified, these facts are borrowed from this Court’s July
23, 2010 Memorandum affirming Appellant’s judgment of sentence. See
Commonwealth v. In, No. 1389 EDA 2009, unpublished memorandum, at
1-3 (Pa. Super. filed July 23, 2010).
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On March 7, 2007, three men entered Vuthary Yun’s house, and one of
the men pointed a gun at his head. The man with the gun pushed Yun into
the basement and demanded money and jewelry. Yun’s daughter, Dina
Khem, who was in her bedroom in the basement, called 911 when she heard
a man’s voice yelling at her father. A few minutes later, when Dina heard
police upstairs, she exited her room and walked to the basement steps,
where she observed her father and Appellant at the top of the steps. When
Dina attempted to speak to her father, Appellant turned to face her, pointed
the gun at her, and told her to “shut the fuck up.” Dina testified that she
observed Appellant for approximately two minutes before returning to her
room. While Yun was being held in the basement, co-conspirators Jerry
Jean and Dyshon Marable (“Marable”) were on the second floor, robbing
Dina’s younger sister, Christina Khem, of her jewelry.
When Officer Roger Birch arrived outside of the victims’ home, he
observed Appellant kneeling beside a white Nissan Altima. Appellant entered
the vehicle and sped eastbound. Officer Birch pursued him in his patrol car
for approximately one block before Appellant crashed the Altima into a
house. Appellant exited the vehicle and fled on foot before being
apprehended by police. Police later took Dina to the patrol car in which
Appellant was being held, and Dina identified him as the gunman who held
her father in the basement.
Officer Kevin Cannon observed co-conspirator Jean hiding between two
parked cars near the white Nissan Altima. Police arrested Jean shortly
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thereafter and found pieces of a latex glove in his sweatshirt. Co-
conspirator Marable was later found hiding in a closet on the second floor of
the victims’ home.
Police recovered a 0.9 mm semi-automatic handgun from the driver’s
side of the white Nissan Altima. Latex gloves and three traffic tickets listing
the name Jerry Jean were also recovered from the vehicle. Another
handgun and a latex glove were found in a shed in the victims’ backyard.2
Later, Yun discovered that sixty dollars had been taken from his wallet.
Subsequently, Appellant was charged with burglary, robbery,
possession of an instrument of crime, criminal conspiracy, and violations of
the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-6127. The case proceeded
to a jury trial, at which the Commonwealth sought to present the testimony
of Appellant’s co-conspirator Marable. On the second day of trial, outside of
the jury’s presence, Marable indicated to the Commonwealth and the trial
court that he would not testify against Appellant and, if called to the stand,
would remain silent.3 N.T. Trial, 9/11/08, at 61-64. Ultimately, the trial
court held Marable in contempt and sentenced him to six months’
imprisonment.
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2
Jean had hidden in the backyard shed after fleeing from the victims’ house.
3
Marable’s attorney advised Marable that he did not have a Fifth
Amendment right against self-incrimination because Marable already had
pled guilty in this case. Marable’s attorney relayed to the trial court that
Marable would not testify because Marable had received several threats to
his life and health. N.T. Trial, 9/11/08, at 58-59.
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After Marable exited the courtroom, the Commonwealth informed the
trial court that it still intended to call him as a witness. The Commonwealth
anticipated that Marable would remain silent and, to identify Marable for the
benefit of the jury, it would request Sheriff Guess to read Marable’s
wristband. The Commonwealth also anticipated that it would ask Detective
Hopkins to testify about the fact that Marable gave a post-arrest statement.4
Upon the jury’s return, the Commonwealth called Marable to testify.
Marable remained silent. Sheriff Guess identified Marable by examining
Marable’s prison identification card. Marable then was escorted from the
courtroom. Thereafter, the Commonwealth informed the trial court and the
jury that it had entered into a stipulation with Appellant’s attorney with
respect to Marable’s guilty plea. Specifically, the Commonwealth noted:
There’s been a stipulation by and between counsel that in the
case of Commonwealth v. Marable, Common Pleas Court No.
51-CR-0004827-2007 . . ., before the Honorable Judge Byrd,
[Marable] pled guilty to three counts of robbery. Victims being
Vuthay Yun, Dina Khem, and Christina Khem. Pled guilty to
burglary of the house at 720 Mifflin Street. Pled guilty to
possession of an instrument of crime, [and] conspiracy regarding
the incident that happened on March 7th, 2007. In exchange to
his guilty plea . . . [Marable] was sentenced to a period no less
than five no more than ten years’ incarceration.
Id. at 78. Trial counsel did not request any cautionary instruction informing
the jury that it should not infer Appellant’s guilt from Marable’s admitted
guilt (guilt by association) and refusal to testify.
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4
The parties agreed that the content of Marable’s post-arrest statement
need not be disclosed to the jury.
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The Commonwealth then offered the testimony of Detective Hopkins,
who testified that Marable gave a post-arrest statement after being
Mirandized.5, 6
During its closing argument, the Commonwealth stated without
objection by Appellant’s attorney:
And you saw [Marable], he wouldn’t even say his name, let alone
be sworn in. Well, why? He took a plea, he’s serving his time.
He’s not going to snitch on his buddy, no matter what the
consequences to him. You saw, you saw the attitude he
gave everybody including the Judge. Well, that’s his boy, I
brought him down here. He’s not going to testify for the
Commonwealth, right?
N.T. Trial, 9/12/08, at 46 (emphasis added).
On September 15, 2008, the jury found Appellant guilty of conspiracy,
burglary, two counts of robbery, possession of an instrument of crime, and
violating Sections 6106 and 6108 of the Uniform Firearms Act. Pursuant to
Appellant’s motion to sever the charge of violating Section 6105 of the
Uniform Firearms Act, the trial court conducted a separate bench trial and
found him guilty of that charge. On December 19, 2008, the trial court
sentenced Appellant to an aggregate term of twenty-five to fifty years’
imprisonment followed by ten years’ probation.
As noted earlier, on July 23, 2010, a panel of this Court affirmed
Appellant’s judgment of sentence. On January 5, 2011, our Supreme Court
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5
See Miranda v. Arizona, 384 U.S. 436 (1966).
6
It appears that Detective Conn likewise testified about Marable providing a
post-arrest statement. N.T. Trial, 9/11/08, at 13.
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denied Appellant’s petition for allowance of appeal. See Commonwealth v.
In, 12 A.3d 370 (Pa. 2011).
On July 15, 2011, Appellant pro se filed the instant PCRA petition. The
PCRA court appointed counsel, who filed an amended PCRA petition on
October 4, 2012, raising a number of ineffective assistance of counsel
claims. Appellant alleged that his trial counsel was ineffective for failing to
object to the Commonwealth’s presentation of Marable as a witness at trial
when the Commonwealth knew that Marable was not going to testify.
Specifically, Appellant alleged that Marable’s presentation “was only
undertaken so as to unfairly prejudice [Appellant] by advancing guilt through
association.” Amended Petition, 10/4/12, at ¶ 11. Appellant alleged that his
trial counsel was ineffective because he stipulated to Marable’s guilty plea
arising out of the home invasion robbery at issue here. Appellant also
alleged trial counsel’s ineffectiveness on the grounds that counsel did not
object to the detectives’ testimony that Marable gave a post-arrest
statement. Finally, Appellant alleged ineffectiveness because trial counsel
did not object to the Commonwealth’s remarks during its closing argument.
On January 24, 2013, the Commonwealth filed a motion to dismiss.
On April 10, 2013, without seeking and obtaining leave of court under
Pa.R.Crim.P. 905, Appellant filed a supplemental PCRA petition wherein he
notified the trial court that the previous PCRA petitions were filed under an
incorrect docket number. On July 19, 2013, Appellant once again filed a
supplemental PCRA petition without leave of court, raising for the first time a
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claim for cumulative prejudice. On July 30, 2013, the Commonwealth filed a
supplemental motion to dismiss.
On September 6, 2013, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition. On September 18, 2013,
Appellant filed a response to the PCRA court’s Rule 907 notice, raising an
ineffectiveness claim against his PCRA counsel. On October 11, 2013, the
PCRA court dismissed Appellant’s petition without a hearing. Appellant
timely appealed to this Court.7
On appeal,8 Appellant raises two issues for our review.9
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7
Following a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998), Appellant elected to proceed pro se on April 14, 2014. On this
appeal, Attorney Craig M. Cooley, whom Appellant has privately retained, is
representing Appellant.
8
“On appeal from the denial of PCRA relief, our standard of review requires
us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
9
To the extent the Commonwealth suggests that Appellant has waived
issues raised in his supplemental PCRA petitions that were filed without
leave of court, we disagree. It is settled that when a PCRA court fails to
strike a supplemental petition and addresses issues therein raised in ruling
upon the petition, the PCRA court implicitly permits amendment under
Pa.R.Crim.P. 905(A). See Commonwealth v. Brown, 141 A.3d 491, 504-
05 (Pa. Super. 2016) (“[W]hen a petitioner files supplemental materials to a
PCRA petition, and the PCRA court considers such materials, an attempt by
the Commonwealth to preclude consideration of such materials fails.”).
Instantly, not only did the PCRA court fail to strike the supplemental
petitions, it expressly addressed the issues raised therein in its Pa.R.A.P.
1925(a) opinion. Accordingly, under the circumstances, the Commonwealth
may not avail itself of waiver.
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[I.] Trial counsel made a series of objectively unreasonable
decisions regarding the prosecutor’s attempt to have [Marable]
testify against [Appellant]. Individually and cumulatively, these
unreasonable decisions prejudiced [Appellant] because they
allowed the prosecutor to present and the jury to consider
irrelevant, inadmissible, and highly prejudicial evidence
regarding [] Marable’s pre-trial statement and guilty plea without
being subjected to cross-examination and without instructing the
jury it could not consider [] Marable’s guilty plea as substantive
evidence of [Appellant’s] guilt. Had trial counsel lodged timely
objections there is a reasonable probability the trial court would
have prohibited the prosecutor from presenting [] Marable as a
Commonwealth witness as well as the other evidence relating to
his guilty plea and pre-trial statement. It would have also struck
the prosecutor’s impermissible closing arguments relating to []
Marable’s refusal to testify, statement, and guilty plea.
Individually and collectively, the introduction and consideration
of this evidence undermines confidence in the jury’s guilty
verdicts warranting a new trial and the PCRA court erred when it
refused to grant a new trial because the record supported
[Appellant’s] right to a new trial based on trial counsel’s
ineffectiveness. U.S. Const. amends. V, VI, VIII, XIV; Pa. Const.
art. 1, §§ 1, 6, 9.
[II.] In his supplemental amended PCRA petition, appointed
PCRA counsel raised a cumulative prejudice claim, but did not
set forth specific, reasoned, and legally and factually supported
arguments for this claim. Appointed PCRA counsel did not have
a strategic reason for not adequately briefing this claim.
Appointed PCRA counsel’s ineffectiveness prejudiced [Appellant]
because the PCRA court ruled [Appellant] did not “properly aver”
this claim and thus waived it. U.S. Const. amends. V, VI, VIII,
XIV; Pa. Const. art. 1, §§ 1, 6, 9.
Appellant’s Brief at 1-2. Stripped to its essence, Appellant’s first issue
subsumes six distinct ineffectiveness claims against his trial counsel. Trial
counsel was ineffective for: (A) failing to object to the Commonwealth’s
presentation of Marable as a witness at trial when the Commonwealth knew
that Marable would refuse to testify against Appellant; (B) requesting a
cautionary instruction that the jury should not infer Appellant’s guilt from
Marable’s refusal to testify; (C) stipulating to the fact that Marable entered
into a guilty plea in connection with the home invasion robbery sub judice;
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(D) failing to request a cautionary instruction informing the jury that it
should not infer Appellant’s guilt from Marable’s admitted guilt (guilt by
association); (E) failing to object to the detectives’ testimony referencing
Marable’s post-arrest statement; and (F) failing to object to the
Commonwealth’s closing argument referencing Marable’s silence and refusal
to testify against Appellant on behalf of the Commonwealth. In his second
issue, Appellant argues that his appointed PCRA counsel was ineffective
insofar as counsel failed to develop a cumulative prejudice claim.
Instantly, given the complexity of the claims raised and the dearth of a
record below, we are unable to engage in a meaningful appellate review.
Specifically, the PCRA court failed to conduct an evidentiary hearing on
Appellant’s ineffectiveness claims and render necessary factual findings. We
therefore cannot assess trial counsel’s tactical reasons for withholding
objections. As a result, we must vacate the PCRA court’s order dismissing
Appellant’s PCRA petition and remand the matter to the PCRA court to
conduct an evidentiary hearing to address fully the claims identified above. 10
Order vacated. Case remanded. Jurisdiction relinquished.
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10
We express no opinion as to the merits of Appellant’s ineffectiveness
claims.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2016
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