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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MONTRELL GAINEY, : No. 751 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered January 16, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0014125-2011
BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2020
Montrell Gainey appeals from the January 16, 2019 order entered by
the Court of Common Pleas of Philadelphia County dismissing his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The PCRA court set forth the following factual history:
On May 11, 2011, [appellant] shot at two young men
in broad daylight, killing Lamar Spencer and wounding
Tracy Capers. The victims were talking outside of a
store where Spencer worked when [appellant] and his
friend, Roger Washington, approached them.
[Appellant] drew a .45-caliber handgun and fired
10 shots in the direction of the victims. [Appellant]
wounded Capers by shooting him three times in the
leg and killed Spencer by shooting him once in the
back. Another employee inside the store called 9-1-1.
This incident stemmed from an ongoing feud between
rival housing projects located at 10th and Brown
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Streets and at 7th and Green Streets. [Appellant] and
Washington lived at 10th and Brown.[1] Capers was
originally from West Philadelphia, never lived in either
development, but was friends with people from 7th and
Green. Spencer did not live in either development and
no connection was found between him and either
development.
A bench warrant was obtained for Roger Washington
to testify at trial, but the Commonwealth was unable
to locate or secure his presence for trial.
On March 12, 2014, the jury sitting before the [the
trial court] found [appellant] guilty of first degree
murder, attempted murder, aggravated assault,
possession of an instrument of crime (“PIC”), and
carrying a firearm without a license. (“VUFA
§ 6106”).[ ] [The trial court] sentenced [appellant]
2
the same day to life [imprisonment] without the
possibility of parole on the charge of murder in the
first degree and no further penalty on the remaining
charges.
PCRA court opinion, 4/25/19 at 2 (citation to the record and extraneous
capitalization omitted).
Appellant filed a notice of appeal and this court affirmed his judgment
of sentence on November 30, 2015. Commonwealth v. Gainey, 134 A.3d
505, 2015 WL 7901174 (Pa.Super. filed Nov. 30, 2015) (unpublished
memorandum). On February 3, 2016, appellant filed a PCRA petition seeking
1 The housing project located at 10th and Brown Streets was known as the
Richard Allen Homes (“Richard Allen”); and the housing project located at
7th and Green Streets was known as Penn Town. (Notes of testimony, 3/6/14
at 11-13.)
2 18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a), 907(a), and 6106(a)(1),
respectively.
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to have his right to file a petition for allowance of appeal with our supreme
court restored nunc pro tunc. The PCRA court granted appellant’s petition
on April 18, 2016, and appellant filed a petition for allowance of appeal with
our supreme court on May 16, 2016. Our supreme court denied appellant’s
petition on September 19, 2016. Commonwealth v. Gainey, 158 A.3d 68
(Pa. 2016). Appellant did not file a petition for a writ of certiorari with the
Supreme Court of the United States. For the purposes of collateral review,
appellant’s judgment of sentence became final on December 15, 2016. See
42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct. Rule 13.
Appellant filed the instant timely, counseled PCRA petition on
December 9, 2017.3 On December 14, 2018, the PCRA court entered a notice
of intent to dismiss appellant’s PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. Appellant filed a response on January 3, 2019. On
January 16, 2019, the PCRA court dismissed appellant’s PCRA petition without
a hearing.
Appellant filed a timely notice of appeal on February 11, 2019. The
PCRA court did not order appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Pursuant to
Pa.R.A.P. 1925(a), the PCRA court filed an opinion.
3 When a petitioner files a petition for collateral review following the
restoration of his direct appellate rights nunc pro tunc, the subsequent PCRA
petition is considered his first petition for timeliness purposes.
Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014) (citations
omitted).
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Appellant raises the following issues for our review:
I. Did the PCRA court err in dismissing without a
hearing [appellant’s] claim that counsel
rendered ineffective assistance by failing to
interpose continuing objections to the pervasive
references by the Commonwealth to a prior,
unrelated killing and ensuing violence between
two rival neighborhood factions, by failing to
object to hearsay in that connection, and by
failing to prosecute an effective appeal of this
issue?
II. Did the PCRA court err in dismissing without a
hearing [appellant’s] claim that counsel
rendered ineffective assistance for failing to
object or to preserve objection to the
Commonwealth’s references to its anxiety to
produce Roger Washington as a witness?
III. Did the PCRA court err in dismissing without a
hearing [appellant’s] claim that counsel
rendered ineffective assistance for failure to
object to the insufficient remedy given by the
trial court for the Commonwealth’s failure to
make pretrial discovery of witness
Depaul Babbs’ prior failure to identify
[appellant]?
IV. Did the PCRA Court err in dismissing without a
hearing [appellant’s] claim that he is entitled to
relief based upon the cumulative prejudice from
Issues I, II and III?
V. Did the PCRA court err in dismissing without a
hearing [appellant’s] claim that his sentence of
life without parole is in violation of the United
States Supreme Court’s rulings in Miller v.
Alabama, 567 U.S. 460 (2012) and
Montgomery v. Louisiana, 136 S.Ct. 718
(2016)?
Appellant’s brief at 3-4.
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PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, [] 17 A.3d
297, 301 ([Pa.] 2011) (citation omitted). A PCRA
court’s credibility findings are to be accorded great
deference, and where supported by the record, such
determinations are binding on a reviewing court. Id.,
at 305 (citations omitted). To obtain PCRA relief,
appellant must plead and prove by a preponderance
of the evidence: (1) his conviction or sentence
resulted from one or more of the errors enumerated
in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his claims have
not been previously litigated or waived, id.,
§ 9543(a)(3); and (3) “the failure to litigate the issue
prior to or during trial . . . or on direct appeal could
not have been the result of any rational, strategic or
tactical decision by counsel[,]” id., § 9543(a)(4). An
issue is previously litigated if “the highest appellate
court in which [appellant] could have had review as a
matter of right has ruled on the merits of the issue[.]”
Id., § 9544(a)(2). “[A]n issue is waived if [appellant]
could have raised it but failed to do so before trial, at
trial, . . . on appeal or in a prior state postconviction
proceeding.” Id., § 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
In his first three issues, appellant alleges ineffective assistance on the
part of his trial counsel. Under the PCRA, an individual is eligible for
post-conviction relief if the conviction was the result of “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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). When
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considering whether counsel was ineffective, we are governed by the following
standard:
[C]ounsel is presumed effective, and to
rebut that presumption, the PCRA
petitioner must demonstrate that
counsel’s performance was deficient and
that such deficiency prejudiced him.
Strickland v. Washington, 466 U.S.
668 [] (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into two
distinct components. Commonwealth v.
Pierce, [] 527 A.2d 973, 975 ([Pa.]
1987). Accordingly, to prove counsel
ineffective, the petitioner must
demonstrate that: (1) the underlying
legal issue has arguable merit;
(2) counsel’s actions lacked an objective
reasonable basis; and (3) the petitioner
was prejudiced by counsel’s act or
omission. Id. A claim of ineffectiveness
will be denied if the petitioner’s evidence
fails to satisfy any one of these prongs.
Commonwealth v. Busanet, [] 54 A.3d 35, 45
([Pa.] 2012) (citations formatted). Furthermore, “[i]n
accord with these well-established criteria for review,
[an appellant] must set forth and individually discuss
substantively each prong of the [Pierce] test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910
(Pa.Super. 2009).
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015), order
vacated on other grounds, 166 A.3d 1213 (Pa. 2017). See also
Commonwealth v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003), quoting
Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (holding counsel
cannot be held ineffective for failing to raise meritless objection).
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I.
In his first issue, appellant claims ineffectiveness on the part of his trial
counsel, Jack McMahon, Esq.,4 because Attorney McMahon failed to render
continuing objections to “the pervasive references by the Commonwealth to a
prior, unrelated killing and ensuing violence between two rival neighborhood
factions, by failing to object to hearsay in that connection, and by failing to
prosecute an effective appeal of this issue.” (Appellant’s brief at 20 (full
capitalization omitted).) The PCRA court set forth the following with regard
to appellant’s first issue:
[The trial court] ruled on a motion in limine that the
Commonwealth “could say [appellant] lived in the
neighborhood. That people had been killed in the
neighborhood and so on.” The [trial court] continued
that the Commonwealth “could certainly say that
people in the neighborhood may have known about
Wayne [sic] [Ballard’s] murder.” The [trial court]
limited the Commonwealth by prohibiting it from
attributing Ballard’s murder to [appellant]. In
opening statements, the Commonwealth referred to
the feud between [Richard Allen and Penn Town] and
described it as “senseless violence.” It also suggested
Capers was involved in the violence and that
[appellant] “came looking for [Capers]” and tried to
kill him.
PCRA court opinion, 4/25/19 at 8 (citations to the record omitted; some
brackets in original).
First, appellant specifically contends that Attorney McMahon rendered
ineffective assistance because he raised a “belated objection” to the
4 Attorney McMahon also represented appellant on direct appeal.
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Commonwealth’s opening statement. (Appellant’s brief at 27.) Second,
appellant argues that Attorney McMahon was ineffective for failing to
“adequately renew his objection to the [Commonwealth’s] ongoing use of
irrelevant and inflammatory evidence[.]” (Id.) Third, appellant avers that
Attorney McMahon rendered ineffective assistance by failing to object to
hearsay testimony pertaining to violence between gangs associated with
Richard Allen and Penn Town. (Id. at 39-40.) Finally, appellant brings a
layered ineffective assistance claim, as he alleges that Attorney McMahon
“failed to make reasonable use of the portions of the record available to him
in support of his chosen issue, a failure which almost certainly resulted in [the
Superior Court’s] failing to consider the full extent of the Commonwealth’s
objectionable argument.” (Id. at 48 (citations omitted).) We shall address
each of these allegations separately.
Belated objection to the Commonwealth’s opening statement
Appellant first contends that Attorney McMahon provided ineffective
assistance due to his failure to make a timely objection to the
Commonwealth’s opening statement to the jury. (Id. at 26-27.) This issue
is without arguable merit.
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Indeed, as noted by appellant, this issue was addressed by a previous
panel of this court on direct appeal.5 Therein, appellant claimed that the trial
court erred when it denied his motion precluding the Commonwealth from
making certain statements during its opening statement pertaining to an
ongoing feud between factions at Richard Allen and Penn Town. Gainey,
2015 WL 7901174 at *1. This court discerned no abuse of discretion of the
trial court’s findings that “evidence of hostilities in the neighborhood would be
admissible as part of the history and natural development of the instant
murder[,]” and determined that the trial court did not err when it denied
appellant’s motion. Id. at *6 (internal quotation marks omitted).
“The purpose of an opening statement is to apprise the jury how the
case will develop, its background and what will be attempted to be proved;
but it is not evidence.” Commonwealth v. Parker, 919 A.2d 943, 950 (Pa.
2007) (citation omitted). Our supreme court recognized that a prosecutor is
afforded reasonable latitude when delivering his or her opening statement.
Id., citing Commonwealth v. Jones, 610 A.2d 931, 938 (Pa. 1992). A
prosecutor’s latitude is limited, however, as his or her opening statement
“must be based on evidence that he plans to introduce at trial, and must not
5We note that previously litigated issues are not cognizable for PCRA review.
Commonwealth v. Jones, 932 A.2d 179, 181 (Pa.Super. 2007), citing
42 Pa.C.S.A. § 9543(a)(3). In the context of an allegation of ineffective
assistance of counsel, however, a claim distinct from the underlying issue is
being raised; therefore, the issue is cognizable for collateral review.
Commonwealth v. Wholaver, 177 A.3d 136, 147 (Pa. 2018) (citations
omitted).
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include mere assertions designed to inflame the jury's emotions. A
prosecutor's opening statements may refer to facts that he reasonably
believes will be established at trial.” Parker, 919 A.2d at 950, citing
Commonwealth v. Begley, 780 A.2d 605, 626 (Pa. 2001) (internal quotation
marks, citation omitted).
In this case, as noted above, this court on direct appeal discerned no
abuse of discretion of the trial court’s findings that “evidence of hostilities in
the neighborhood would be admissible as part of the history and natural
development of the instant murder.” Gainey, 2015 WL 7901174 at *6.
Accordingly, the Commonwealth’s opening statement was based on evidence
it planned to introduce at trial, rather than mere assertions of a feud between
two neighborhoods as a way to inflame the jury’s emotions. See Parker, 919
A.2d at 950, citing Begley, 780 A.2d at 626. Therefore, Attorney McMahon
could not raise a meritorious objection to the Commonwealth’s opening
statement and, thus, cannot be found to be ineffective. Rivera, 816 A.2d at
292. Appellant’s claim that Attorney McMahon rendered ineffective assistance
due to a “belated objection” to the Commonwealth’s opening statement is
without arguable merit.
Failure to renew objection
Appellant next contends that Attorney McMahon rendered ineffective
assistance because he failed to “adequately renew his objection to the
[Commonwealth’s] ongoing use of irrelevant and inflammatory evidence”
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pertaining to the feud between factions at Richard Allen and Penn Town.
(Appellant’s brief at 27.) Specifically, appellant argues as follows:
The failure to register a consistent, continuing
objection to the [Commonwealth’s] many references
to group warfare between residents of Richard Allen
and Penn Town was highly ineffective. Not only was
much of [the] testimony hearsay, loosely attributed to
what was known on the street, but its slight probative
value with respect to witness credibility was greatly
outweighed by its inflammatory potential and the
likelihood that the jury was diverted from its
appropriate focus, that is, the shooting of
Lamar Spencer and Tracy Capers.
Id. at 32. Appellant further argues that the Commonwealth “was not
permitted to argue that [appellant] had a motive related to the
Dwayne Ballard killing unless it had ‘some direct proof of that.’” (Id. at 34,
citing notes of testimony, 3/5/14 at 173-174; R.R. at 53a.)
Appellant’s claim lacks arguable merit. Indeed, as noted above, a
previous panel of this court held that the trial court did not err when it
concluded that “evidence of hostilities in the neighborhood would be
admissible as part of the history and natural development of the instant
murder.” Gainey, 2015 WL 7901174 at *6 (internal quotation marks
omitted). Accordingly, Attorney McMahon cannot be found ineffective for
failing to raise meritless objections. See Rivera, 816 A.2d at 292. Therefore,
appellant is not entitled to relief.
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Ineffective assistance of counsel on direct appeal
Finally, appellant contends that Attorney McMahon rendered ineffective
assistance of counsel on direct appeal as it pertains to the Commonwealth’s
opening statement. Specifically, appellant contends that Attorney McMahon’s
framing of this issue on direct appeal was “in a manner calculated to ensure
that the argument was not taken seriously.” (Appellant’s brief at 46.)
Appellant further argues that Attorney McMahon failed to “put forth a
competent argument with some chance of persuading an appellate panel.”
(Id. at 47-48.)
In support of his argument, appellant cites Commonwealth v.
Franklin, 823 A.2d 906, 910 (Pa.Super. 2003). Franklin is readily
distinguishable from the instant case. The Franklin court specifically stated
that counsel’s brief on the underlying appeal was so procedurally defective
that the previous panel could not reach the merits of the issues on appeal.
Id. at 909. This court found that the defendant was deprived of effective
assistance of counsel on direct appeal and vacated the PCRA court’s dismissal
of the defendant’s PCRA petition. Id. at 910-911.
Here, while Attorney McMahon’s analysis on the opening statement
issue may have been limited, this court did not indicate that his analysis was
so defective as to preclude the panel from reaching a decision. See Gainey,
2015 WL 7901174 at *5-6 (restating appellant’s argument verbatim). To the
contrary, this court reached a decision on the merits. Accordingly, appellant’s
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issue as it pertains to his claim that Attorney McMahon rendered ineffective
assistance on direct appeal is without arguable merit.
II.
In his second issue, appellant argues that Attorney McMahon was
ineffective for failing to object to the Commonwealth’s references to “its
anxiety to produce Roger Washington as a witness.” (Appellant’s brief at 49
(full capitalization omitted).) As part of his second issue, appellant raises two
interrelated issues. First, appellant addresses Philadelphia Police Detective
Micah Spotwood’s testimony pertaining to Washington’s June 13, 2011
statement to the police and his efforts to locate Washington to have him testify
at trial. Second, appellant addresses the Commonwealth’s references to
Washington during its closing argument.
Detective Spotwood’s Testimony
Appellant contends that Washington’s statement to the police on
June 13, 2011 “was rank hearsay and inadmissible under Crawford v.
Washington, 541 U.S. 36 (2004).” (Appellant’s brief at 49.) Appellant,
however, does not frame his argument as a violation of Crawford; rather, he
argues “that the manner in which the testimony was admitted and argued
improperly presented to the jury an inference as to the contents of what
Washington’s testimony would have been, and the persons responsible for his
absence.” (Id. at 52.) In furtherance of his argument, appellant contends
that any evidence relating to Washington should have been excluded under
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Pa.R.E. 403 “for unfair prejudice, confusion of the issues or misleading of the
jury.” (Id. at 51-52.) Specifically, appellant argues that:
[t]he testimony and argument concerning []
Washington’s absence from the trial . . . was nothing
more than a vehicle for suggesting to the jury that the
content of his statement was favorable to the
Commonwealth and not to [appellant] — thus
accomplishing an end-run around Crawford’s
prohibition against testimonial hearsay.
Id. at 52.
On June 13, 2011, Washington gave a statement to the Philadelphia
Police Department in which he identified appellant as the shooter.
(Philadelphia Police activity sheet, 6/13/11.) Washington further stated that
after the shooting, he and appellant ran toward Richard Allen, “at which time
he was told by [appellant] to keep his mouth shut.” (Id.) During his interview
with the police, Washington identified a photograph of appellant. (Id.)
In the instant case, appellant takes issue with the testimony of
Detective Spotwood. During the trial, Detective Spotwood testified that
Washington was interviewed by the police on June 13, 2011, but he had not
appeared to testify at appellant’s trial. (Notes of testimony, 3/10/14 at 35;
R.R. at 169a.) Detective Spotwood also testified about his efforts to locate
Washington to have him testify at trial. (Notes of testimony, 3/10/14 at
33-39, 54-55; R.R. at 169a-170a, 174a.) Specifically, Detective Spotwood
testified that he had been looking for Washington during the two weeks
leading up to the trial, that he had confirmed Washington’s address with
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Washington’s probation officer, and that efforts to reach Washington by
telephone were unsuccessful. (Notes of testimony, 3/10/14 at 35-37; R.R. at
169a-170a.)
The Pennsylvania Rules of Evidence permit a trial judge to exclude
otherwise relevant evidence if its probative value is outweighed by a danger
of, inter alia, unfair prejudice, confusing the issues, or misleading the jury.
Pa.R.E. 403. This court has held that evidence should be excluded on the
grounds of prejudice, “only if it has ‘an undue tendency to suggest decision
on an improper basis,’ or if it would ‘divert the jury’s attention away from [its]
duty of weighing the evidence impartially.’” Commonwealth v. Foy, 576
A.2d 366, 369 (Pa.Super. 1990), affirmed, 612 A.2d 1349 (Pa. 1992),
quoting Whistler Sportswear, Inc. v. Rullo, 433 A.2d 40, 47 (Pa.Super.
1981), and Commonwealth v. Taliaferro, 455 A.2d 694, 698 (Pa.Super.
1983) (citations omitted).
The record reflects that Detective Spotwood testified about his efforts
to locate Washington to have him testify at trial. (Notes of testimony, 3/10/14
at 33-39, 54-55; R.R. at 169a-170a, 174a.) At no point did
Detective Spotwood testify as to the contents of Washington’s June 13, 2011
statement to the police, nor did he testify either explicitly or implicitly that
Washington’s testimony could have been favorable to the Commonwealth.
Therefore, Attorney McMahon did not have a basis to raise an objection to
Detective Spotwood’s testimony.
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The Commonwealth’s Closing Argument
We next turn to the Commonwealth’s closing argument to the jury. In
his brief, appellant highlights the following excerpts from the Commonwealth’s
closing argument:
I wrote down in preparation to give this speech to you
all today some things I thought I was going to hear
from defense counsel . . . I missed a couple . . . That
the government through a mistake; not turning over
those photo arrays when they should have been;
right? And they were turned over and we had them
and Mr. Babbs was asked about them. That that’s a
conspiracy and an outrage. Where is the outrage;
right? I heard a lot of yelling throughout this trial from
that side of the room.
Where is the outrage that Roger Washington isn’t here
to testify? I didn’t hear any outrage about that. . . .
....
The question always is for a witness, Well, why do I
have to go into court? Didn’t you take a statement
from me? Why is that not good enough? I already
told you what happened. Why do I have to come to
court? Why? Why? I don’t want to. Tracy Capers
didn’t want to. Roger Washington didn’t want to.
Depaul Babbs didn’t want to. Nobody wanted to come
to court . . .
Appellant’s brief at 51, quoting notes of testimony, 3/10/14 at 228-229, 232;
R.R. at 217a-218a.
Preliminarily, we note that our supreme court has recognized that a
prosecutor must be afforded reasonable latitude to argue a defendant’s guilt.
Commonwealth v. Clancy, 192 A.3d 44, 62 (Pa. 2018), citing
Commonwealth v. Cronin, 346 A.2d 59, 62 (Pa. 1975) (citation omitted).
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The Clancy court further recognized that a prosecutor may “argue all
reasonable inferences from the evidence of record.” Clancy, 192 A.3d at 62,
quoting American Bar Association Standards Relating to the Prosecution
Function § 3-6.8(a).6
Based on our review of the record, we cannot discern any reference by
the Commonwealth during its closing argument to the contents of
Washington’s statement to the police, nor can we discern any reference as to
whether Washington’s testimony would have been favorable to the
Commonwealth had he appeared to testify at trial. Put another way, the
record reflects that the Commonwealth’s closing argument consisted of fair
conclusions derived from the evidence presented during the trial. See
Clancy, 192 A.3d at 62. Therefore, Attorney McMahon did not have a basis
to raise an objection to the Commonwealth’s references to Washington during
its closing argument.
We, therefore, find that neither Detective Spotwood’s testimony nor the
Commonwealth’s closing argument suggested a jury decision on an improper
basis. Foy, 576 A.2d at 369 (citations omitted). Likewise, we find that neither
Detective Spotwood’s testimony nor the Commonwealth’s closing argument
diverted the jury’s attention away from its duty of weighing the evidence
impartially. Id. We further find that Detective Spotwood’s testimony did not
6Our supreme court has adopted the American Bar Association Standards
Relating to the Prosecution Function. Commonwealth v. Starks, 387 A.2d
829, 831 (Pa. 1978) (citations omitted); see also Clancy, 192 A.3d at 62.
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confuse the issues or mislead the jury. Accordingly, appellant’s second issue
is without arguable merit.
III.
In his third issue, appellant complains that Attorney McMahon rendered
ineffective assistance by failing to object to a jury instruction given by the trial
court in light of a Brady7 violation. (Appellant’s brief at 60-61.) As noted by
the PCRA court:
The Commonwealth failed to disclose that a witness,
DePaul Babbs, was shown at least one, possibly two,
photo arrays and failed to identify [appellant.] The
[Brady] violation was discovered on
cross-examination when Babbs explained that he was
shown a photo array by Detective Spotwood and did
not make an identification. The [trial c]ourt granted
a continuance, permitted the parties to interview
Detective Spotwood, and provided time for [t]rial
[c]ounsel to review the photo array once it was
provided by the Commonwealth. Detective Spotwood
testified that he failed to document the
non-identification and claimed that it was an
oversight. He testified inconsistently whether the
photo arrays were provided to the District Attorney’s
Office. He admitted that he “absolutely” would have
documented a positive identification but denied that
this was an attempt to suppress the
non-identification. Trial [c]ounsel requested a limiting
instruction be given to the jury that the
Commonwealth was required to turn over that
information and failed to do so. [The trial court] found
that the non-disclosure was a Brady violation but that
the violation was not intentional. As a result, [the trial
court] added language to the jury instruction asking
the jury not to hold that nondisclosure against the
[Assistant] District Attorney personally, which
[appellant] claims neutralized the effect of the
7 See Brady v. Maryland, 373 U.S. 83 (1963).
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instruction. [Appellant] claims that [t]rial [c]ounsel
was ineffective for failure to object to this language.
PCRA court opinion, 4/25/19 at 10-11 (citation to the record omitted).
Here, the following jury instruction is at issue:
Now, ladies and gentlemen, when we left yesterday,
Mr. Babbs was on the witness stand and he was being
cross-examined by defense counsel Mr. McMahon.
There were some discussions about some
photographs that Mr. Babbs had been shown. So I
want to tell you that I have had an opportunity to
speak with counsel. And Mr. McMahon has advised
me that the assistant district attorney Mr. Handrich
did provide this morning copies of the photo spreads
that were used in this trial. That were used in the
investigation of this matter. What I want you to
understand is that the Commonwealth had an
obligation to turn those photos over well before the
time of trial.
So sometimes that happens. A lot of paperwork is
involved. I do want you to understand that
Mr. Handrich is not the person who was responsible
for holding the paperwork and not turning it over in a
timely manner. So the two things to understand
is [sic] Mr. McMahon should have had the papers, the
photos long before this morning, and Mr. Handrich is
not to be held responsible because the paperwork was
not turned over. It has been received this morning.
Mr. McMahon has had an opportunity to review it and
we’re going to pick up from there.
Notes of testimony, 3/7/14 at 14-16; R.R. at 120a. Specifically, appellant
contends that trial counsel should have objected because the trial court’s jury
instruction “was an abuse of discretion and improperly foreclosed any possible
conclusion by the jury that the failure to make discovery [on the part of the
Commonwealth] was in bad faith[.]” (Appellant’s brief at 59.)
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It is axiomatic that at the trial level, evidentiary questions of law are
reserved for the judge, while questions of fact are reserved exclusively for the
fact-finder. See Pennsylvania Suggested Standard Criminal Jury Instructions
§ 2.01. In cases involving Brady violations, it is within the purview of the
trial court to determine whether a Brady violation on the part of either the
district attorney or law enforcement was committed with the intent to deprive
a defendant of a fair trial or was otherwise the product of intentional
misconduct. Commonwealth v. Adams, 177 A.3d 359, 374 (Pa.Super.
2017).
As noted by the Commonwealth, appellant does not allege that the trial
court’s curative instruction was an inadequate remedy for the Brady violation,
nor did appellant allege that the trial court’s instruction failed to cure the
Brady violation. (Commonwealth’s brief at 30.) Rather, appellant’s sole
contention is that Attorney McMahon’s failure to object to the trial court’s
curative instruction deprived the jury of the opportunity to determine whether
the Commonwealth’s Brady violation was in bad faith. (Appellant’s brief at
58-59.) Appellant’s argument would require the jury to determine a question
of law — which is in the exclusive purview of the trial judge. Accordingly, we
find appellant’s third issue is without arguable merit.
IV.
In his fourth issue on appeal, appellant raises a cumulative prejudice
claim. Specifically, appellant contends that the “multiple instances of
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ineffectiveness . . . combine to render an even stronger case for awarding a
new trial or a new direct appeal.” (Appellant’s brief at 62.)
[Our supreme court has] often held that “no number
of failed [] claims may collectively warrant relief if
they fail to do so individually.” [Commonwealth v.
Johnson, 966 A.2d 523, 532 (Pa. 2009)] (quoting
Commonwealth v. Washington, [] 927 A.2d 586,
617 ([Pa.] 2007)). However, [the court has] clarified
that this principle applies to claims that fail because
of lack of merit or arguable merit. [Commonwealth
v. Sattazahn, 952 A.2d 640, 671 (Pa. 2008)]. When
the failure of individual claims is grounded in lack of
prejudice, then the cumulative prejudice from those
individual claims may properly be assessed. Id.;
Johnson, supra at 532 (citing Commonwealth v.
Perry, [] 644 A.2d 705, 709 ([Pa.] 1994), for the
principle that a new trial may be awarded due to
cumulative prejudice accrued through multiple
instances of trial counsel’s ineffective representation.
Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011).
Here, none of appellant’s three issues pertaining to ineffective
assistance of counsel were disposed of due to a lack of a showing of prejudice.
Rather, all three issues failed because they lacked arguable merit.
Accordingly, appellant’s claim of cumulative prejudice from multiple errors is
without merit.
V.
In his fifth issue, appellant contends that he is due relief in light of the
Supreme Court of the United States’ holdings in Miller v. Alabama, 567 U.S.
460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). The
Miller Court held that mandatory minimum sentences for defendants who
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were juveniles at the time of the offense violated the Eighth Amendment.
Miller, 567 U.S. at 470. Montgomery applied the holding in Miller
retroactively for the purposes of state collateral review. Montgomery, 136
S.Ct. at 732.
As noted by appellant, an en banc panel of this court declined to extend
the holdings in Miller and Montgomery to defendants over 18 years of age
at the time of the offense. Commonwealth v. Lee, 206 A.3d 1, 11
(Pa.Super. 2019) (en banc), appeal denied, 218 A.3d 851 (Pa. 2019); see
appellant’s brief at 63-64. Under the doctrine of stare decisis, we are bound
by existing precedent that has not subsequently been overturned by our
supreme court. Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.Super.
2014) (citations omitted).
At the time of the offense in the instant case, appellant was 21 years of
age. (Appellant’s brief at 63.) Therefore, in light of this court’s holding in
Lee, appellant is not due relief, and his fifth issue is without merit. Lee, 206
A.3d at 11.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/20
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Com. v. Gainey, M.
Combined Opinion