Com. v. Thomas, N.

J-S66027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NIEEM THOMAS :
:
Appellant : No. 1091 EDA 2018

Appeal from the PCRA Order March 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010184-2009

BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: Filed: October 29, 2020

Appellant Nieem Thomas appeals pro se from the order denying his first

timely Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition

without a hearing. Appellant argues that the PCRA court erred in dismissing

his claims that trial counsel was ineffective when litigating a suppression

motion and by failing to (1) request a jury instruction regarding prior

inconsistent statements, (2) object to prior bad acts evidence or seeking a

cautionary instruction, and (3) call a witness at trial. We affirm.

This Court previously summarized the factual background of Appellant’s

conviction as follows:

On July 21, 2009, Cheryl Harrington (Harrington) resided at 1332
South Hicks Street, Philadelphia, PA, and was a mutual friend of
[Appellant], aka Falc, and Darryl Pray, aka BJ (the decedent).
Harrington testified that at the time of the shooting, she was using
drugs and that she occasionally purchased the drugs from the
decedent as well as [Appellant]. On the morning of the incident,
Harrington purchased crack cocaine from the decedent. As a
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result of that sale[, Appellant] told Harrington “tell the guys they
can’t be coming around her selling no crack and if they don’t like
it, they got to come see me.” Harrington ignored [Appellant] and
she then contacted the decedent’s friend “Smoke”[1] and arranged
to purchase marijuana. Smoke arrived and completed that
purchase, and again someone called to Harrington. When
Harrington looked out she saw [Appellant’s] friend, Jabaar, aka
“Bar”[2] (Jabaar), who stated: “Didn’t Falc tell you not to be buying
no crack off of nobody else? Didn’t Falc tell you not to be having
anyone come around here selling no crack?” Harrington explained
that [the d]ecedent and Smoke sold drugs together at Tasker and
Hicks Streets and that was their territory, and that [Appellant] and
Jabaar sold drugs together at Hicks and Reed Streets. After
Harrington and her friends consumed the drugs, Harrington went
to her father’s residence, which was located on nearby Carlisle
Street. While there, she heard multiple gunshots emanating from
Hicks Street; however, she did not go to investigate. On
September 11, 2009, Harrington was interviewed by detectives
and she identified photographs of the decedent, Jabaar, her friend
Pam, and another person who Harrington knew sold crack cocaine
with [Appellant].

At the time of the shooting, Rashaun Wright (Wright)[3] was
standing outside of 1514 Reed Street engaged in conversation
with friends when he heard gunshots, turned[,] and observed
[Appellant] standing over the decedent, shooting him. Wright fled
into a friend’s home and telephoned police. Wright testified that
he heard multiple gunshots fired. He stated that the decedent
was face down on the ground. He described the gun as being a
____________________________________________

1The Commonwealth identified “Smoke” as Horace Cunningham in its closing
argument. N.T., 2/7/11, at 74.

2It appears that Jabaar’s full name was Jabaar Thomas and that he was
Appellant’s cousin. See id. at 22, 100.

3 There are different references to Wright’s first name as Rashauna and
Rashaun and to Wright as “him” or “her” in the record and the parties’ briefs.
This memorandum uses the spelling “Rashaun” as that spelling appears in the
trial transcript. See N.T., 2/3/11, at 86. To maintain consistency with our
prior decision, this memorandum will use of the pronouns “he” and “his” when
referring to Wright.

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silver/black colored semiautomatic. Wright was interviewed and
positively identified a photograph of [Appellant] as the shooter
from a photo array.

Philadelphia Police Officer Shawn Dobbins (Dobbins) testified that
on the day of the shooting, she was on routine patrol when she
observed Jabaar and Lamar Truit[t4] standing beside a silver
Chevrolet Monte Carlo, which belonged to [Appellant], double-
parked at the corner of Hicks and Reed Streets. A few minutes
later, Dobbins received a radio dispatch of gunshots fired at 15th
and Reed Streets[,] to which [s]he responded and observed the
decedent lying on the ground.

Officer Kurt Myers (Myers) testified that he and his partner, Officer
[Ronald] Ginnetti, also responded to the scene of the shooting
and, upon arriving, observed the decedent lying face down on the
street, unresponsive, in a pool of blood. Myers attempted to pick
the decedent up to transport him to the hospital, whereupon
Myers observed a firearm lying beneath the decedent’s body. He
identified the firearm as a .45 caliber Taurus model PT-145, serial
number NET-59764. Myers also observed 10 to 15 fired cartridge
cases on the ground nearby. Medical personnel arrived very
shortly thereafter and attempted to render assistance to the
decedent, who was then transported to the hospital.

[Later that same day,] Officer Daniel Farrelly (Farrelly) and his
partner, Officer [Charles] Wells (Wells), while traveling the 1400
block of Hicks Street, observed [Appellant] sitting on steps. As
the officers stopped their vehicle, [Appellant] looked at the
officers, walked in the opposite direction, and fled. Farrelly
pursued [Appellant], and during the chase, [Appellant] removed
a handgun from his waistband and went into an alley. Farrelly
continued to pursue [Appellant] and Wells joined the effort;
however, [Appellant] eluded the police officers. They continued
to patrol the area, and at approximately 10:00 PM, located a silver
Chevrolet Monte Carlo, parked on the 1100 block of nearby
Cleveland Street, which car the officers knew to belong to
[Appellant]. The officers confirmed that the car was registered to
[Appellant], secured it, and it was later impounded. An arrest
warrant was issued for [Appellant’s] arrest along with a search
____________________________________________

4Although spelled “Truit” in the trial transcripts, Lamar Truitt spelled his name
as “Truitt.” See Aff. Of Lamar Truitt, 4/14/15.

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warrant for the 2007 silver Chevy Monte Carlo. Officers recovered
from [Appellant’s] car a registration card for a 2007 Chevrolet
issued to [Appellant] at his address, 1436 South Hicks Street,
financial responsibility identification cards in [Appellant’s] name,
one letter from Philadelphia Traffic Court addressed to [Appellant],
16 green-tinted baggies containing crack cocaine, and a Taurus
.40 caliber semiautomatic handgun, Model number PT -140, Serial
Number SZ-103041.

Commonwealth v. Thomas, 460 EDA 2011, at 1-3 (Pa. Super. filed Oct. 1,

2012) (unpublished mem.) (citation omitted and some formatting altered).

As noted by the PCRA court:

On February 18, 2011, following a jury trial before this [c]ourt,
Appellant was found guilty of murder of the first degree, violation
of Section 6106 of the Pennsylvania Uniform Firearms Code,
possessing instruments of crime, and related offenses.
Thereafter, Appellant was sentenced to life imprisonment without
parole. On October 01, 2012, the Superior Court affirmed his
judgment of sentence in a memorandum opinion. Petition for
allowance of appeal to the Supreme Court was denied on April 10,
2013. On October 15, 2013, the United States Supreme Court
denied Appellant’s petition for writ of certiorari.

PCRA Ct. Op., 9/6/18, at 1 (some capitalization omitted). Robert B. Mozenter,

Esq. (trial counsel), represented Appellant in the pre-trial, trial, and direct

appeal proceedings in this matter.

Appellant timely filed his pro se PCRA petition on October 8, 2014, and

he filed an amended pro se petition and memorandum of law in March and

June of 2015. The PCRA court appointed Lee Mandell, Esq. (PCRA counsel),

to represent Appellant. On May 31, 2017, PCRA counsel filed an amended

petition asserting that that trial counsel was ineffective for failing to (1)

“request a jury instruction which would have permitted the jury to have

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considered the testimony of [Rashaun] Wright as substantive evidence,” (2)

“move to exclude [Pa.R.E.] 404(b) evidence on grounds that it was unfairly

prejudicial,” and (3) “present the testimony of one Lamar Truitt.” Am. PCRA

Pet., 5/31/17, at 2-3.

The record indicates that in a pro se letter dated June 19, 2017, and

forwarded to the PCRA court, Appellant requested that PCRA counsel develop

several claims that Appellant raised in his pro se PCRA petitions and

memorandum of law. The PCRA court ensured that the correspondence was

filed of record and took no further action on this correspondence. Cf.

Pa.R.Crim.P. 576(A)(4).

On December 18, 2017, the Commonwealth filed a motion to dismiss

Appellant’s counseled amended PCRA petition. Appellant, while still

represented by PCRA counsel, sent the PCRA court a pro se response to the

Commonwealth’ motion to dismiss. Of relevance to this appeal, Appellant

asserted that the Commonwealth failed to address the suppression claims

raised in his pro se PCRA petitions. See Pro Se Resp. to Mot. to Dismiss,

2/2/18, at 4. However, Appellant did not acknowledge that his counseled

amended petition did not raise his pro se suppression claims, and Appellant

did not allege PCRA counsel’s ineffectiveness for not including these claims in

the counseled amended PCRA petition. See id.

On February 27, 2018, the PCRA court entered a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s PCRA petition. Appellant did not file a pro

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se or counseled response. On March 27, 2018, the PCRA court dismissed

Appellant’s PCRA petition.

Appellant timely filed a pro se notice of appeal.5 On May 8, 2018, the

PCRA court directed Appellant to file and serve a Pa.R.A.P. 1925(b) statement.

Appellant timely filed a pro se Rule 1925(b) statement. PCRA counsel

subsequently filed a separate Rule 1925(b) statement on May 29, 2019.

On July 20, 2018, Appellant filed a pro se motion to remove PCRA

counsel in this Court, and this Court remanded the matter to the PCRA court

for a Grazier6 hearing. The PCRA court filed a Rule 1925(a) opinion

addressing the issues raised in Appellant’s pro se and PCRA counsel’s Rule

1925(b) statements. The PCRA court conducted a hearing and determined

that Appellant’s waiver of his right to counsel was knowing, intelligent, and

voluntary.

On April 12, 2019, Appellant filed in this Court a pro se motion to

remand, arguing that this Court

should remand a matter back to the trial court when: (1) a pro se
petitioner presents the court with a claim of error in his PCRA
petition but appointed counsel fails to [i]nclude the petitioner[‘s]
claim in his amended PCRA petition, (2) appointed counsel
declined to raise the claim on behalf of his client and, (3) the
____________________________________________

5 The envelope containing Appellant’s pro se notice of appeal bore a postage
mark dated April 4, 2018. See Commonwealth v. Chambers, 35 A.3d 34,
38 (Pa. Super. 2011) (discussing the “prisoner mailbox rule”); see also
Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016)
(discussing notices of appeal filed pro se when a defendant is represented by
counsel).

6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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[PCRA] court failed to address the claims raised in petitioner’s pro
se PCRA Petition.

Appellant Mot. to Remand, 4/12/19, at 4 (unpaginated). This Court denied

the motion without prejudice to Appellant’s right to raise the issue in his brief.

Order, 4/29/19.

Appellant, in his pro se brief submitted in this appeal, presents five

issues, which we have reordered for our review:

1. Because [Appellant] was not charged with any drug related
offenses and the [trial] court was “inclined” to grant
[Appellant’s] motion to suppress the drug and the . . . gun
found in [Appellant’s] car once counsel presented the [trial]
court with any case law that contained a “similar factual bases”,
[Appellant’s trial counsel] was ineffective for failing to present
the [trial] court with Commonwealth v. Flaherty, 583 A.2d
1175 (Pa. Super. 1990).

2. Because the key Commonwealth witness gave conflicted and
inconsistent testimony rela[t]ed to important matters[] and
jury was able to use that testimony substantive evidence,
[Appellant’s position] is that [trial] counsel was ineffective for
failing to request a jury instruction on that inconsistent
testimony.

3. Because [Appellant] was not charged with any drug related
offenses; and the jury attention, by way of the
Commonwealth’s presentation of the drugs, was in large part
focused on [whether] or not [Appellant] was involved in drug
[activity], [Appellant’s position] is that [trial] counsel was
ineffective for failing to seek to exclude the 404(b) evidence
(drugs) for begin a part of [Appellant’s trial].

4. Because [Appellant] was not charged with any drug[ ]related
offenses[] and the jury permitted to view photographs of drugs
found in [Appellant’s] car, [Appellant’s trial] counsel was
ineffective for failing to request or “accept” the court “offer” to
give “any special instruction” related to those drugs

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5. Because Lamar Truitt, a defense witness was willing and
available to testify at [Appellant’s trial, was trial counsel] was
ineffective for failing to call Lamar Truitt to testify . . . .

Appellant’s Brief at 4-5.

Briefly, Appellant argues that trial counsel was ineffective for (1) failing

to challenge an illegal seizure and search of his car; (2) requesting a jury

instruction that prior statements made by an eyewitness, Rashaun Wright,

constituted substantive evidence; (3) failing to object to the admission of prior

bad acts evidence regarding drugs and drug dealing, and (4) rejecting the trial

court’s offer of a cautionary instruction regarding the prior bad acts evidence.

Additionally, Appellant claims that trial counsel was ineffective for failing to

call Lamar Truitt to testify that Jabaar Thomas admitted to shooting the

decedent.

Because Appellant argues that the PCRA court erred in dismissing his

claims of trial counsel’s ineffectiveness, the following principles govern our

review. This Court’s review of the denial of a PCRA petition is limited to the

examination of “whether the PCRA court’s determination is supported by the

record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,

992 (Pa. Super. 2014) (citation and quotation marks omitted). “The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

2014) (citation omitted).

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Courts must presume that a PCRA petitioner’s trial counsel was

effective. Commonwealth v. Diaz, 226 A.3d 995, 1007 (Pa. 2020) (citation

omitted). To overcome that presumption, a petitioner

must establish that: (1) the underlying substantive claim has
arguable merit; (2) counsel did not have a reasonable basis for
his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, that is, a
reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different. A PCRA
petitioner must address each of these prongs on appeal. A
petitioner’s failure to satisfy any prong of this test is fatal to the
claim.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations and

quotation marks omitted).

Failure to Challenge the Seizure and Search of Appellant’s Car

Appellant first contends that trial counsel was ineffective when litigating

Appellant’s motion to suppress the evidence found in his car, a silver 2007

Chevrolet Monte Carlo. By way of background to this claim, Appellant’s trial

counsel filed a motion to suppress evidence based on a lack of probable cause

to search Appellant’s vehicle. On February 1, 2011, the trial court denied the

motion to suppress following a hearing.

In Appellant’s direct appeal, trial counsel challenged the trial court’s

denial of his motion to suppress, arguing that the affidavit of probable cause

was lacking because it failed to show that Appellant’s car “was in any way

involved in the shooting or the getaway.” Thomas, 460 EDA 2011, at 5

(quoting Appellant’s Brief, 460 EDA 2011, at 17). This Court rejected the

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argument and affirmed the trial court’s denial of Appellant’s motion to

suppress. Id. at 7-8.

In his initial pro se PCRA filings, Appellant raised several arguments

focusing on trial counsel’s litigation of issues related to the seizure and search

of his car. PCRA counsel, however, did not amend or include those claims in

Appellant’s counseled amended PCRA petition.

Appellant attempted to raise the issues in pro se correspondence, as

well as a pro se response to the Commonwealth’s motion to dismiss the

counseled amended PCRA petition. Appellant, however, did not preserve the

issues in a response to the PCRA court’s Rule 907 notice, and he did not allege

PCRA counsel’s ineffectiveness, request new counsel, or request to proceed

pro se while the case was pending in the PCRA court.

Nevertheless, while still represented by PCRA counsel, Appellant filed a

pro se appeal and a pro se Rule 1925(b) statement asserting. In his pro se

Rule 1925(b) statement, Appellant stated: “[Appellant’s] position is that [trial]

counsel was ineffective for failing to present the [trial court] with

Commonwealth v. Flaherty[, 588 A.2d 1175 (Pa. Super. 1990)], and

Commonwealth v. Zelasky, 635 A.2d 630 [(Pa. Super. 1993)].” Appellant’s

Pro Se Rule 1925(b) Statement, 5/23/18, at 1.

The PCRA court did not consider any issue related to suppression until

after Appellant filed a pro se notice of appeal, when the PCRA court elected to

address Appellant’s pro se Rule 1925(b) statement. In its Rule 1925(a)

opinion, the PCRA court rejected Appellant’s claim, noting that Appellant

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litigated a suppression issue on direct appeal, that Appellant waived his claim,

and that Appellant’s assertions of ineffectiveness based on Flaherty and

Zelasky were “misplaced.” PCRA Ct. Op. at 4-5. The PCRA court concluded

that no relief was due on Appellant’s ineffective assistance of counsel claim.

Id. at 5.

On appeal, Appellant maintains that trial counsel should have cited

Flaherty to support his position that the affidavit of probable cause did not

justify the magistrate’s issuance of a search warrant. Appellant’s Brief at 13.

Additionally, Appellant contends that the affidavit of probable cause contained

omissions and was misleading. Id. at 18. Appellant further argues that the

warrantless seizure of his car was unconstitutional and tainted the subsequent

search of the vehicle. Id. at 15-16. In short, Appellant contends that trial

counsel was ineffective for foregoing these meritorious arguments to suppress

the evidence of drugs and an unloaded gun in his car. Appellant, however,

does not address the issue he raised in his motion to remand, namely, whether

he was entitled to have the PCRA court address claims raised in a pro se PCRA

petition and pro se correspondence, when PCRA counsel did not include those

claims in his counseled amended petition.

Concerning Appellant’s suppression motion challenge, the

Commonwealth argues that this Court previously affirmed the trial court’s

suppression ruling in Appellant’s direct appeal and contends that “[t]he PCRA

is not an appropriate avenue for [Appellant] to relitigate his meritless

challenge of the denial of his motion to suppress.” Commonwealth’s Brief at

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11. The Commonwealth also asserts trial counsel was not ineffective for failing

to cite Flaherty because “Flaherty is inapposite” and would not have

changed the outcome of Appellant’s motion to suppress. Id. at 12. The

Commonwealth does not address Appellant’s remaining two arguments that

(1) the affidavit of probable cause contained omissions or was misleading and

(2) the search of Appellant’s car was tainted by a warrantless seizure.

Initially, we must consider whether Appellant properly preserved his

issues in the PCRA court. Our Supreme Court has held that the rule against

hybrid representation does not require a PCRA court to address all issues

raised in a pro se PCRA petition when appointed counsel files an amended

PCRA petition. Commonwealth v. Pursell, 724 A.2d 293, 301-02 (Pa.

1999). The Pursell Court reasoned:

This Court in [Commonwealth v. Ellis, 626 A.2d 1137 (Pa.
1993)] held that a defendant in a criminal case may not confuse
and overburden the courts by filing his own pro se briefs at the
same time his counsel is filing briefs for him. There is no right to
that type of hybrid representation at trial or on appeal, and the
decision whether to allow such hybrid representation is within the
sound discretion of the trial court.

This Court further explained the Ellis decision in Commonwealth
v. Rogers, [645 A.2d 223 (Pa. 1994)], in which we held that the
Superior Court may prohibit the filing of pro se briefs by appellants
represented by counsel on appeal. In Rogers, our decision stated
that we may require that appellants remain with counsel through
the appeal once counsel has filed a brief because to do otherwise
would result in the confusion and overburdening of the court
described in Ellis.

The rationale of our decisions in Ellis and Rogers applies equally
to PCRA proceedings in the Court of Common Pleas. We will not
require courts considering PCRA petitions to struggle through the

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pro se filings of defendants when qualified counsel represent those
defendants.

Id. at 302.

This Court has further stated that a PCRA petitioner has “an affirmative

duty to preserve his claims.” Commonwealth v. Smith, 121 A.3d 1049,

1055 (Pa. Super. 2015). The Smith Court continued:

Neither the Commonwealth nor the court ha[s] any duty to
instruct [an a]ppellant on how to preserve his claims of ineffective
assistance of counsel, including PCRA counsel. In the framework
of Rule 907 notice, the law makes clear Appellant had to preserve
his claims of PCRA counsel’s ineffectiveness in a response to the
notice.

Id. at 1056 (citations omitted).

Instantly, PCRA counsel did not raise any ineffectiveness claims related

to the motion to suppress in the counseled amended petition, nor did Appellant

preserve his pro se arguments in a response to the PCRA court’s Rule 907

notice. See Pursell, 724 A.2d at 301-02; Smith, 121 A.3d at 1055.

Therefore, Appellant’s arguments are waived because he failed to preserve

them in the PCRA court.

Failure to Request a Jury Instruction Considering Rashaun Wright’s
Inconsistent Statements

Appellant next contends that the trial counsel should have requested a

jury instruction to consider Rashaun Wright’s prior inconsistent statements as

substantive evidence. Appellant’s Brief at 24. Appellant notes that trial

counsel “did offer compelling cross examination” and elicited Wright’s

inconsistent statements. Id. Appellant asserts: “In that this witness gave

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allege[d] eyewitness identification testimony, h[is] ongoing inconsistency

throughout the testimony should have been put before the jury as substantive

evidence. Id. Citing Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992),

Appellant asserts that he was entitled to the subject jury instruction. Id.

The Commonwealth responds that Wright consistently identified

Appellant as the individual who shot decedent in a statement to police, at

Appellant’s preliminary hearing, and at trial. Commonwealth’s Brief at 16.

The Commonwealth emphasizes that Appellant does not identify any specific

inconsistencies in Wright’s prior statements and any inconsistencies “that did

exist were minor and were extensively explored by trial counsel during cross-

examination and his closing argument.” Id. at 16-17. The Commonwealth

adds that the trial court thoroughly instructed the jury on how to consider

testimony and identification testimony. Id. at 17.

The PCRA court concluded that Appellant’s claim with respect to Wright

lacked merit because he could not establish that trial counsel’s failure to

request an instruction lacked a reasonable basis or affected the outcome of

trial. PCRA Ct. Op. at 6.

This Court has stated:

“[a] prior inconsistent statement may be offered not only to
impeach a witness, but also as substantive evidence if it meets
additional requirements of reliability.” Commonwealth v.
Carmody, 799 A.2d 143, 148 (Pa. Super. 2002) (citing [Lively,
610 A.2d at 9-10]; Pa.R.E. 803.1).

The test is a two-part inquiry: 1) whether the statement is
given under reliable circumstances; and 2) whether the
declarant is available for cross-examination. With respect

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to the first prong, that the statement is given under reliable
circumstances, our [S]upreme [C]ourt has deemed reliable
only certain statements; among them is a statement that is
“reduced to a writing and signed and adopted by the
witness.” Lively, 610 A.2d at 10. Pa.R.E. 803.1(1). With
respect to the second prong, cross-examination, the
inconsistent statement itself must be the subject of the
cross-examination in order to satisfy the test.

Carmody, 799 A.2d at 148 (some internal citations and footnote
omitted). See also Lively, 610 A.2d at 10 (providing prior
inconsistent statement is “demonstrably reliable and trustworthy”
where statement “had been reduced to a writing signed and
adopted by the witness; or a statement that is a contemporaneous
verbatim recording of the witness’s statements”).[fn3]
[fn3]In Lively, three Commonwealth witnesses, following
their refusal to implicate the defendant at trial, were
confronted with prior inconsistent statements in which they
had previously implicated the defendant in the murder of
the victim, which was the subject of the prosecution.
Lively, 610 A.2d at 10. Our Supreme Court found that two
of the statements, a memorandum prepared by a police
detective which was not a contemporaneous verbatim
recording and which was neither signed nor adopted by the
witness and a police officer’s testimony about the substance
of a telephone call with a witness, were improperly
admitted. Id. at 11. However, the Supreme Court held that
a statement of the third witness, made in a signed writing
given to the police, was properly admitted. Id.

Commonwealth v. Enix, 192 A.3d 78, 81-82 & n.3 (Pa. Super. 2018).

In Commonwealth v. Howard, 645 A.2d 1300 (Pa. 1994), our

Supreme Court considered a claim of ineffective assistance of counsel

“involving trial counsel’s failure to object to a jury instruction on prior

inconsistent statements when the instruction did not inform the jury that it

could consider such statements as substantive evidence.” Howard, 645 A.2d

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at 1308. After noting the general rule that prior inconsistent statements could

be used as substantive evidence, the Court reasoned:

[The a]ppellant claims that in the case sub judice, the eyewitness
testified inconsistently with previous statements that were made
under circumstances that would provide such indicia of reliability.
However, [the a]ppellant has failed to indicate which specific
statements were inconsistent and we will not undertake to
determine which, if any, of the witness’s statements were in fact
inconsistent.

In any event, we find that the trial judge’s instruction was proper.
The instruction did not limit the examination of the witness’s prior
statements for impeachment purposes only. Because the court
did not preclude the jury from considering these statements as
substantive evidence, there was no basis for an objection by
counsel.

Id.

Instantly, we acknowledge that Howard is not identical to the present

case because the appellant in Howard claimed that his trial counsel should

have objected to an instruction given by the trial court. Here, Appellant

contends that trial counsel should have requested an instruction regarding

prior inconsistent statements. Nevertheless, as in Howard, Appellant asserts

that Wright’s testimony was inconsistent from prior statements, and he makes

no effort to identify which portions of Wright’s trial testimony and prior

statements were inconsistent. See id. Moreover, Appellant does not suggest

that the trial court’s general instruction as to credibility or identification

testimony precluded the jury from considering any inconsistencies in Wright’s

testimony as substantive evidence. See id.

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Based on this record, we conclude Howard is analogous and compels

the conclusion that Appellant has not demonstrated arguable merit or

prejudice to his claim that trial counsel should have requested a jury

instruction regarding the use of prior inconsistent statements. See id.; see

also Wholaver, 177 A.3d at 144. Accordingly, we agree with the PCRA court

that Appellant was not entitled to relief on this claim. See Lawson, 90 A.3d

at 4.

Failure to Object to Prior Bad Acts Evidence and Request a
Cautionary Instruction

In his next two claims, Appellant asserts that trial counsel was

ineffective for failing to object to testimony that Appellant was involved in

selling drugs and evidence that the police found drugs in his car. Appellant

asserts that any relevant purpose for the evidence was outweighed by its

prejudicial effect. Appellant’s Brief at 25. Additionally, Appellant claims that

trial counsel was ineffective for refusing the trial court’s offer of a limiting

instruction regarding the proper use of the evidence regarding drugs. Id. at

21.

The Commonwealth responds that Pa.R.E. 404(b) permitted the

evidence of Appellant’s prior bad acts. Commonwealth’s Brief at 13. The

Commonwealth notes that the evidence regarding Appellant’s involvement

with drugs established motive for the shooting and was part of the natural

progression of the development of the case. Id. Furthermore, the

Commonwealth contends that Appellant cannot demonstrate prejudice

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warranting a new trial because of Wright’s identification of Appellant and the

ballistics evidence linking the shell casings at the scene of the shooting to the

gun found in Appellant’s car. Id. at 15.

The PCRA court determined that the evidence linking Appellant with

drugs and drug dealing was properly admitted as evidence of motive and as

part of the sequence of events that formed part of the natural development of

the case. PCRA Ct. Op. at 8-9. The PCRA court also concluded that “the

evidence was not unfairly prejudicial to” Appellant. Id. In sum, the PCRA

court concluded that “[a]ny motion to exclude this evidence would have been

denied, therefore trial counsel cannot be found ineffective for failing to file the

motion.” Id. at 8. Neither the PCRA court nor the Commonwealth addressed

Appellant’s claim that he was entitled to a cautionary instruction on the use of

prior bad acts evidence.

With respect to prior bad acts evidence, this Court has noted:

The trial court has discretion over the admissibility of evidence,
and we will not disturb such rulings on appeal absent evidence the
court abused its discretion. An abuse of discretion is not a mere
error in judgment. Rather, “discretion is abused when the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence or the record.”

Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal
propensity. Pa.R.E. 404(b)(1). However, evidence of prior
bad acts may be admissible when offered to prove some
other relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of
mistake or accident. Pa.R.E. 404(b)(2). In determining
whether evidence of other prior bad acts is admissible, the

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trial court is obliged to balance the probative value of such
evidence against its prejudicial impact.

“Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less
probable or supports a reasonable inference or presumption
regarding a material fact.” “All relevant evidence is admissible,
except as otherwise provided by law.”

Evidence will not be excluded merely because it is harmful to a
defendant’s case. “The trial court is not required to sanitize the
trial to eliminate all unpleasant facts . . . where those facts are
relevant to the issues at hand[.]”

Commonwealth v. Akhmedov, 216 A.3d 307, 316 (Pa. Super. 2019) (en

banc) (some citations omitted), appeal denied, 224 A.3d 364 (Pa. 2020).

Instantly, the record establishes that shortly before the shooting, the

decedent sold crack to Cheryl Harrington. N.T., 2/4/11, at 17. Harrington

testified that after the exchange, Appellant approached Harrington and

expressed his displeasure at other people selling drugs to her. Id. at 18-19.

Harrington then arranged a purchase of marijuana through the decedent’s

friend, “Smoke,” who was later identified as Horace Cunningham. Id. at 20.

Once Harrington and Cunningham made the exchange, Appellant’s cousin,

Jabaar Thomas, yelled out that Appellant told Harrington to buy drugs from

“nobody else.” Id. at 21. Approximately minutes before the shooting, a police

officer saw Jabaar and another of Appellant’s companions, Lamar Truitt,

standing near Appellant’s car, which was double parked a few blocks from the

scene of the shooting. N.T., 2/7/11, at 22. Police later found bags of crack

cocaine and the .40 caliber Taurus handgun linked to the shooting inside

Appellant’s car. We conclude that this record supports the PCRA court’s

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conclusion that evidence of Appellant’s links to drugs established motive and

a natural development of the case. See Akhmedov, 216 A.3d at 316;

Lawson, 90 A.3d at 4.

Moreover, we note that the main issue at trial was the reliability and

accuracy of Wright’s identification of Appellant as the individual who shot the

decedent. Although the Commonwealth referred to Appellant’s involvement

with drugs, our review of the record reveals that the Commonwealth did not

suggest that Appellant’s involvement in drug dealing evidenced a propensity

to commit the shooting. In sum, the record supports the PCRA court’s

conclusion that the evidence of drugs and drug dealing was not unfairly

prejudicial. See Akhmedov, 216 A.3d at 316; Lawson, 90 A.3d at 4.

Based on the foregoing discussion, we agree with the PCRA court’s

conclusion that there was no merit to Appellant’s assertion that the evidence

regarding drugs and Appellant’s involvement in drug dealing generated unfair

prejudice that resulted from the admission of the evidence. See Wholaver,

177 A.3d at 144; Akhmedov, 216 A.3d at 316. Accordingly, the PCRA court

properly dismissed this claim. See Lawson, 90 A.3d at 4.

As to Appellant’s claim that trial counsel should have accepted the trial

court’s offer to issue a limiting instruction, we note that this issue was not

preserved in Appellant’s counseled amended PCRA petition, nor addressed by

the PCRA court. Like Appellant’s suppression claims discussed above, we are

constrained to find this issue waived. See Pursell, 724 A.2d at 301-02;

Smith, 121 A.3d at 1055.

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Failure to Call Lamar Truitt

In his final claim, Appellant asserts that trial counsel was ineffective for

failing to call Lamar Truitt to testify for the defense. By way of background to

this claim, Appellant’s strategy at trial was, in part, to highlight the inadequacy

of the investigation into the shooting of the decedent. During closing

arguments, for example, trial counsel asked the jury:

Did [the decedent] have a gun on him that day? Was [the
decedent] a gangster? Were other persons out on that day that
didn’t come into court and testify? Did Pam come in and testify?
Did Jabaar come in and testify? Did [Truitt] come in and testify?
Did [Horace Cunningham] come in and testify? Were they
questioned that day? Did [Charles Harris] tell you today that he
didn’t see [Appellant] all day that day, and he did see [the
decedent] with a heavyset black man that day. And that after the
shooting, he say that man who looked at the body and left. Why
didn’t the police find out who he was.

N.T., 2/7/11, at 60.

Later, when trial counsel referred to Jabaar in his closing argument, the

Commonwealth objected. After the Commonwealth presented its closing

argument, the trial court, the Commonwealth, and Appellant’s trial counsel

had an exchange regarding the availability of witnesses including Jabaar,

Truitt, and Cunningham. During that exchange, the Commonwealth identified

Cunningham as “Smoke,” the individual who sold marijuana to Harrington,

and who Harrington referred to as the decedent’s friend. See id. at 98. The

Commonwealth stated that Jabaar and Cunningham were dead, and that Truitt

was in jail for killing Cunningham. Id. at 98, 101. The Commonwealth,

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however, did not indicate that it was in possession of any prison phone calls

between Appellant and Truitt.

Subsequently, PCRA counsel included Appellant’s claim that trial counsel

should have called Truitt to testify at trial in Appellant’s amended counseled

petition. PCRA counsel attached a statement by Truitt dated April 14, 2015,

to the counseled amended petition.7 In that statement, Truitt wrote and

indicated that he and Jabaar drove Appellant’s car to Hicks Street to meet

Appellant, but the decedent told them that Appellant left. Aff. of Lamar Truitt,

4/14/15, at 1. According to Truitt, he left the scene to make “a solo run.” Id.

However, Jabaar called him fifteen minutes later to pick him up at Hicks

Street. Id. Truitt stated that Jabaar reported that the decedent tried to

“shake him down” and “pulled a gun” on him, but that Jabaar “beat [the

decedent] to the draw and shot [the decedent] several times.” Id. at 2. Truitt

reported that Jabaar placed a gun in Appellant’s car and he parked the car on

Cleveland Street. Id. Truitt stated that he informed Appellant’s trial counsel

of this information and the fact that he was willing to testify at Appellant’s

trial. Id.

The Commonwealth filed a motion to dismiss, asserting in part, that in

2012, Truitt was convicted for killing Cunningham, who was at the scene of
____________________________________________

7 Although PCRA counsel’s amended petition referred to Truitt’s statement as
an exhibit, Truitt’s statement was not included in the record transmitted to
this Court. However, a copy of the statement is included as an attachment to
Appellant’s brief and is consistent with the respective arguments raised by
PCRA counsel in the counseled amended PCRA petition and by the
Commonwealth in its the motion to dismiss the petition.

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the shooting of the decedent. Commonwealth’s Mot. to Dismiss, 12/18/17, at

17, n.11. The Commonwealth added that at Truitt’s trial, it established

through the tapes of prison phone calls between Appellant and Truitt that

Truitt killed Cunningham “to silence him as a witness to [Appellant’s] killing of

[the decedent.]” Id.

The Commonwealth argued that trial counsel had a reasonable basis not

to call Truitt. Specifically, the Commonwealth asserted that had trial counsel

done so, he would have opened the door to the use of the prison tapes during

cross-examination, as well as the examination on the circumstances of

Cunningham’s death. Id. at 19-20. The Commonwealth continued that

Appellant could not show that the absence of Truitt’s proposed testimony was

prejudicial in light of the overwhelming evidence of Appellant’s guilt. Id. at

21-22.

The PCRA court dismissed this issue based on the Commonwealth’s

representations regarding Truitt’s motive for killing Cunningham and the

existence of the tapes of prison phone calls between Truitt and Appellant.

PCRA Ct. Op. at 10. The PCRA court concluded that trial counsel “had an

objectively reasonable basis for not calling Lamar Truitt to testify, and

Appellant was not prejudiced in counsel’s failure to present him as a witness.”

Id.

On appeal, Appellant asserts that Truitt was ready and available to

testify and that trial counsel lacked any reason to call him. Appellant’s Brief

at 27. According to Appellant, Truitt’s testimony implicating Jabaar would

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have created reasonable doubt as to the identity of the individual who shot

the decedent. Id.

The Commonwealth maintains that the PCRA court properly concluded

that trial counsel had a reasonable basis for not calling Truitt.

Commonwealth’s Brief at 18. The Commonwealth emphasizes the evidence

of Truitt’s involvement in the killing of Cunningham, as well as the existence

of tapes of the prison phone calls. Id.

As our Supreme Court has stated:

To establish that counsel was ineffective for failing to call a
witness, [a petitioner] must demonstrate that: (1) the witness
existed; (2) the witness was available to testify for the defense;
(3) counsel knew of, or should have known of, the existence of
the witness; (4) the witness was willing to testify for the defense;
and (5) the absence of the testimony of the witness was so
prejudicial as to have denied the defendant a fair trial. Failure to
call a witness is not per se ineffective assistance of counsel, for
such a decision implicates matters of trial strategy.

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007) (citations

omitted). The petitioner bears the burden of establishing that trial counsel

had no reasonable basis for declining to call a witness. Id.

Following our review, we agree with the PCRA court and the

Commonwealth that calling Truitt would have been a problematic trial

strategy. Although it is unclear what information trial counsel possessed

regarding Truitt at the time of Appellant’s trial, trial counsel’s strategy of

attempting to establish reasonable doubt based on an inadequate

investigation was clear. By calling Truitt, trial counsel could have opened the

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door to potentially prejudicial evidence, including the allegations that Truitt

was an associate of Appellant’s and had killed Cunningham, who was at the

scene of the shooting. Accordingly, we agree with the PCRA court that the

record demonstrated that trial counsel had a reasonable basis for not calling

Truitt. See Lawson, 90 A.3d at 4; see generally Commonwealth v.

Stewart, 84 A3d 701, 707 (Pa. Super. 2013) (noting that “[c]ounsel’s

decisions will be considered reasonable if they effectuated his client’s

interests”).

Additionally, based on the testimony presented at trial, Appellant has

not established that Truitt’s testimony would have altered the outcome of trial.

As noted above, Wright consistently and unequivocally identified Appellant as

the individual who he saw shoot the decedent. Moreover, Truitt’s testimony

that he left Jabaar in the area of the shooting for approximately fifteen

minutes was directly contradicted by testimony that a police officer saw Truitt

and Jabaar standing near Appellant’s car only two or three minutes before

receiving a radio call about the shooting. Based on this record, we discern no

basis to conclude that the absence of Truitt’s proposed testimony was so

prejudicial as to have denied Appellant a fair trial. See Washington, 927

A.2d at 599.

For these reasons, we affirm the PCRA court’s decision to dismiss

Appellant’s claim that trial counsel should have called Jabaar as a defense

witness. See Lawson, 90 A.3d at 4. Appellant has not shown that trial

counsel lacked a reasonable basis for declining to call Truitt or that the

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absence of the testimony of the witness was so prejudicial as to have him a

fair trial. See Washington, 927 A.2d at 599. Therefore, no relief is due.

Conclusion

In sum, for the reasons set forth above, we find that Appellant failed to

preserve his pro se PCRA claims that trial counsel was ineffective in litigating

the suppression of evidence recovered in Appellant’s car, and that trial counsel

should have requested a cautionary instruction on prior bad acts evidence.

We further find that the PCRA court’s dismissal of Appellant’s claims that trial

counsel was ineffective for failing to request a jury instruction regarding

Rashaun Wright’s testimony, for failing to object to the admission of prior bad

acts evidence, and for failing to call Lamar Truitt was supported by the record

and the relevant law. Accordingly, we affirm the denial of Appellant’s

counseled amended PCRA petition without hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/20

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