Com. v. Crumbley, T.

J-S36033-20

2022 PA Super 16

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THADDEUS CRUMBLEY :
:
Appellant : No. 1899 WDA 2019

Appeal from the PCRA Order Entered December 13, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002820-2012

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED: JANUARY 26, 2022

On August 20, 2020, this Court affirmed the order of the Court of

Common Pleas of Allegheny County (PCRA court) denying Thaddeus

Crumbley’s (Crumbley) petition for post-conviction relief. See

Commonwealth v. Crumbley, 1899 WDA 2019 (Pa. Super. August, 2020)

(unpublished memorandum).1 We had followed then-binding precedent which

compelled us to hold that Crumbley’s claims concerning the ineffectiveness of

his PCRA counsel could not be addressed on the merits because they had been

raised for the first time on appeal.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1In Pennsylvania, the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546, is the “only method for obtaining collateral review.” Commonwealth
v. Descardes, 136 A.3d 493, 501 (Pa. 2016).
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Subsequently, our Supreme Court granted further review, vacated our

decision, and remanded the case for reconsideration in light of its own recent

opinion in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).2 It held in

that case that layered claims of ineffective PCRA counsel may now be raised

for the first time on appeal if that is the earliest practical opportunity to do so.

Upon reconsideration in light of Bradley and for the reasons that follow, we

affirm the order of the PCRA court and hold that Crumbley is not entitled to

post-conviction relief because none of his claims are meritorious.

I.

In 2012, Crumbley and his co-defendant, Matthew Ebo, were found

guilty of murder and several related offenses. See Commonwealth v.

Crumbley, 127 WDA 2016 (Pa. Super. June 21, 2017). The Commonwealth’s

only eyewitness was Saday Robinson (Robinson), who testified that she saw

Crumbley and Ebo shoot the victim, Todd Mattox.

Crumbley and Ebo were sentenced, each receiving life terms, and they

filed direct appeals. Prior to filing briefs, they sought a remand to the trial

court for an evidentiary hearing based on after-discovered evidence, namely,

Robinson’s recantation of her identification in a letter dated November 12,

2014. We granted the application and remanded the case to the trial court.

____________________________________________

2See Commonwealth v. Crumbley, 333 WAL 2020 (Pa. November 4, 2021)
(granting review, vacating and remanding for reconsideration and merits
review of layered claims of PCRA counsel’s ineffectiveness).

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However, at the evidentiary hearing, Robinson withdrew her previous

recantation, explaining that she gave it due to threats by Crumbley and Ebo’s

associates, and the trial court ruled that a new trial was not warranted. The

direct appeal then resumed before this Court, and in 2017, Crumbley’s

judgment of sentence was affirmed,3 becoming final on March 13, 2018.4 We

found no merit in any of Crumbley’s direct appeal issues, including the claim

that Robinson’s recantation entitled him to a new trial.

Crumbley timely filed his first PCRA petition, pro se, and he was

appointed PCRA counsel who submitted an amended version claiming that a

new eyewitness to the Mattox murder had come forward.5 This witness,

Robert Raglin, submitted a signed statement dated July 31, 2018, describing

____________________________________________

3 Ebo’s convictions were also affirmed, but this Court ordered a resentencing
to remedy violations of Alleyne v. United States, 570 U.S. 99 (2013).
Crumbley’s sentence was not affected.

4 Crumbley filed a petition for allowance of appeal before the Pennsylvania
Supreme Court, which was denied on December 13, 2017, and he did not seek
relief before the United States Supreme Court. His judgment of sentence
became final on March 13, 2018, when the 90-day period for seeking a writ of
certiorari expired. Crumbley had one year from that date to timely file a PCRA
petition, which he did, pro se, on February 13, 2018.

5 Crumbley’s PCRA counsel abandoned several of the claims Crumbley had
asserted in his initial pro se petition, including Claims IV and VI, which became
the basis of Crumbley’s layered ineffectiveness claims in this PCRA appeal.
Both issues – regarding improper prosecutorial comment and denial of a
missing witness instruction – were found to be waived by trial counsel in
Crumbley’s direct appeal. See Commonwealth v. Crumbley, 127 WDA
2016 (Pa. Super. June 21, 2017) (unpublished memorandum).

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what he saw. The PCRA court held a hearing to assess Raglin’s credibility.

See PCRA Hearing, 5/10/2019, at pp. 44-46. After he testified, the PCRA

court made the following findings:

a. On May 16, 2011, the day Todd Mattox was shot to death at
the Leechburg Gardens Apartments in Penn Hills, Mr. Raglin was
working as a jitney driver.

b. That evening, shortly before the shooting occurred, Mr. Raglin
picked up two (2) African American men and drove them to the
Leechburg Gardens apartments. He claimed that he recognized
these men because they had used his jitney services “more than
ten” times in the past. He described one of the men as being
“really tall” with “dark skin,” approximately 6’8 in height. He
described the other man as being “short” and “light-skinned.”

c. When presented with photographs that were marked as Defense
Exhibits A and B, he was able to identify the individuals in those
pictures as the men he had driven to the Leechburg Gardens
apartments that day. (He had nicknamed them “stretch” and
“young buck” but recalled that they referred to each other as “Ron
and Rome or something like that.”)

d. Mr. Raglin testified that he dropped these men off at the
Leechburg Gardens [apartments] at approximately 7:00 p.m.,
when it was getting dim outside.

e. After he dropped them off, Mr. Raglin testified to the following
series of events:

I was turning my car around so I could go out. I had to go
to the bathroom by the fire hydrant and the big Christmas
tree. As I’m standing up peeing, a white car comes in [the
parking lot], two guys started busting off caps, and
everybody started shooting at each other. I dove on the
ground, crawled in my car, dropped my seat back and
pulled out.

f. Mr. Raglin testified that he “clearly” saw that “Ron and Rome”
were firing their guns “[o]ver in that direction towards the parking
lot in that area” where the white car was located.

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g. However, he also testified that he “wasn’t paying no attention”
to what or who they were shooting at because he dropped to the
ground as soon as he saw “the sparks and fires.” As he described
it: “I dropped down, peed on myself, crawled in my car, kicked
my seat back and just pulled off. I started lifting my head up as
I am pulling out.”

h. After Mr. Raglin got back inside of his vehicle, he noticed that
the white car had pulled out behind him, and he thought that the
people inside of the white car were going after him because of
what he had just witnessed.

i. Even though Mr. Raglin saw Ron and Rome shooting at the
people in the white car, Mr. Raglin thought that Ron and Rome
were now in the white car behind him. However, Mr. Raglin never
saw anyone get in or out of the white car, and he could not see
inside of the vehicle at any point. Mr. Raglin was able to retreat
safely from the scene, but he never went to the police to report
the shooting that he had allegedly witnessed, and, at that time,
he was unaware that anyone had been killed in the shootout. Law
enforcement also never attempted to contact him in 2011 about
the shooting.

***

k. When asked why he decided to come forward with this
information in 2018, Mr. Raglin testified as follows: I was in the
[Allegheny] county jail, and I was on the fourth floor just coming
in, and these gentlemen was talking and they was pointing at me.
So they called me to be released. As I am coming downstairs to
be released, some young guy told me - he was from Turtle Creek
or something - he told me that I was there. And I said, “[w]here?”
He says “you was there for the ‘Leechburg, Penn Hills’] shooting.”
And he goes, “say that you wasn’t, and jump on you.” I’m like,
what the hell? So I put my foot on the bunk and stood up to fight
to defend myself.

l. Mr. Raglin testified that this young man was a fellow inmate
whom he did not know and had never seen before. This
unidentified inmate told Mr. Raglin that he knew Mr. Raglin was
there that night because he was there too.

m. Mr. Raglin stated that the inmate provided the details of the
incident, telling him “exactly where it happened, exactly what time

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it was. [The inmate] said the guy’s name that died.” The inmate
also told him that “these were the two men that did it.”

n. Mr. Raglin testified that he was scared that this inmate was
going to physically assault him. He “felt threatened enough . . .
to jump on the bunk and brace” himself “for just two of them
against me.” The jail guards had to step in to prevent an
altercation.

o. Mr. Raglin testified that he “didn’t know any of this
[information]” and that he was “in shock” because he was “being
attacked” so he “had to do research on why” he was “being
attacked.”

p. Mr. Raglin testified that when he was released from jail shortly
thereafter, he had a friend of his fact-checked [sic] the
information that the inmate had provided on her cell phone
because he wanted to know why he “was threatened for my life in
jail.” He asked his friend to google “the days, dates, things like
that.”

q. When he saw the pictures of [Crumbley and Ebo] and learned
that they had been convicted of the murder, he “knew [they were
not] the people that” he had driven to the complex. This prompted
Mr. Raglin to write a letter to . . . Crumbley telling him “that I
knew they were innocent because I was there.”

r. Mr. Raglin testified that he decided to reach out to Mr. Crumbley
because he had a brother in prison who he believes was wrongfully
convicted, and he did not “want an innocent man to be in jail.”

s. Mr. Raglin further testified that he does not know and has never
seen any member of the Crumbley or Ebo family and that
[Crumbley and Ebo] were not present during the shooting incident
that he witnessed.

t. Mr. Raglin confirmed that the witness statements that were
attached to the PCRA petitions were true. Though he claimed he
saw “something in one line somewhere” when he was reading it
that was a discrepancy, but he never scratched anything out or
attempted to correct this purported discrepancy.

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u. Mr. Raglin also testified that he did not attempt to contact law
enforcement or the District Attorney’s Office with the information
he had relayed to . . . Crumbley through his letter.

v. When questioned by this court, Mr. Raglin clarified that he did
not actually see anyone get struck by a bullet, he did not see what
the victim looked like at any point, and he did not see anyone
laying on the ground. He also testified that he never saw anyone
get out of the white car before the shooting started and he did not
see who entered the white car after the shooting because he
“wasn’t paying attention” and “everything happened in a tenth of
a second.”

Order and Opinion, 12/13/2019, at 5-11 (footnotes, headings and citations

omitted).

The PCRA court denied Crumbley’s after-discovered evidence claim on

the grounds that Raglin’s testimony would be used solely to impeach the

credibility of the Commonwealth’s eyewitness, Robinson, and that Raglin’s

account would be unlikely to compel a different verdict were a new trial

granted. Id. at 11-17. Crumbley timely appealed and his PCRA counsel filed

a 1925(b) statement raising issues limited to the after-discovered evidence

claim.

In his appellate brief, Crumbley presents three grounds for our

consideration:

i. Whether the PCRA court erred in denying Mr. Crumbley’s after-
discovered evidence claim by finding that Robert Raglin’s
testimony would be used solely to impeach Saday Robinson’s
testimony and finding that Mr. Crumbley did not suffer actual
prejudice[;]

ii. Whether Mr. Crumbley was denied his federal and Pennsylvania
constitutional due process right to effective assistance of PCRA
counsel and his rule-based right to such assistance where PCRA

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counsel failed to allege trial counsel’s ineffectiveness for not
objecting to the prosecutor’s improper reference to Mr. Crumbley
as an “angel of death” [and;]

iii. Whether Mr. Crumbley was denied his federal and Pennsylvania
constitutional due process right to effective assistance of PCRA
counsel and his rule-based right to such assistance where PCRA
counsel was ineffective in failing to argue trial counsel’s
ineffectiveness in declining to preserve for review her request for
a missing witness instruction when the Commonwealth did not
present Richard Carpenter[.]

Appellant’s Brief, at p. 9 (suggested answers omitted).

The Commonwealth responds in its brief that the PCRA court did not

abuse its discretion in ruling that Crumbley failed to establish his after-

discovered evidence claim. As to the latter two claims concerning Crumbley’s

claims of ineffective PCRA counsel, the Commonwealth contends that such

issues cannot be raised for the first time on appeal, and that even if they could

be considered, the claims lack merit.

After reviewing the record and the applicable law, we find that there is

no basis to disturb the PCRA court’s denial of Crumbley’s after-discovered

evidence claim.6 As to Crumbley’s two additional claims of ineffective

assistance of PCRA counsel, we find that although the recent Bradley decision

permits him to raise those issues for the first time on appeal, they are

ultimately without merit and do not entitle him to post-conviction relief.

____________________________________________

6 In reviewing the denial of Crumbley’s claims, we are limited to determining
whether the PCRA court’s findings are supported by the record and free of
legal error. See Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999).

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II.

Crumbley‘s first issue concerns the PCRA court’s denial of his after-

discovered evidence claim. At an evidentiary hearing, Crumbley and his co-

defendant presented the testimony of a new witness (Raglin), who testified

that two other men had killed the victim.

After-discovered evidence is a recognized ground for relief under the

PCRA. See 42 Pa.C.S. § 9543(a)(2)(vi). Relief is due when the proponent

can “demonstrate that the evidence: (1) could not have been obtained prior

to the conclusion of the trial by the exercise of reasonable diligence; (2) is not

merely corroborative or cumulative; (3) will not be used solely to impeach the

credibility of a witness; and (4) would likely result in a different verdict if a

new trial were granted.” Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa.

2008). Failure to satisfy any one prong is fatal to the claim. See

Commonwealth v. Solano, 129 A.3d 1156, 1180 (Pa. 2015) (“As this test

is conjunctive, failure to establish one prong obviates the need to analyze the

remaining ones.”).

The PCRA court found that Crumbley had not satisfied the third and

fourth prong of the above test. See PCRA Court Opinion, 12/13/2019, at 12-

17. We disagree with the PCRA court that the third prong was not met, but

affirm the denial of the claim based on Crumbley’s failure to establish the

fourth – that the result would have been different if a new trial were granted.

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Approximately eight years after the Mattox murder occurred, Crumbley

put forward the eyewitness account of Raglin, whose testimony conflicts with

the Commonwealth’s sole eyewitness at trial, Robinson. The PCRA court found

that Raglin’s testimony would be used solely to impeach the credibility of

Robinson. Id. at 12-15 (citing Commonwealth v. Weis, 611 A.2d 1218,

1229 (Pa. Super. 1992) (“Whenever a party offers a witness to provide

evidence that contradicts other evidence previously given by another witness

it constitutes impeachment[.]”)).

However, Crumbley had no other eyewitnesses at trial who had

identified someone other than himself and the co-defendant as the

perpetrators of the subject murder. Raglin’s account, then, did not simply

undercut Robinson’s credibility or cast doubt on her identification; that was

incidental. If believed, Raglin also directly established that someone other

than Crumbley committed the murders. Since Raglin’s testimony did more

than impeach the credibility of another witness, the third prong is satisfied.

We now turn to the fourth prong of the claim – whether Raglin’s

testimony would have likely resulted in a different outcome if a new trial were

granted. See Pagan, 950 A.2d at 292. “In making that determination, a

court should consider the integrity of the alleged after-discovered evidence,

the motive of those offering the evidence, and the overall strength of the

evidence supporting the conviction.” Commonwealth v. Padillas, 997 A.2d

356, 365 (Pa. Super. 2010). “[C]ases that have addressed [after-discovered

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evidence] have focused not simply on the credibility of the person offering the

exculpatory evidence, but on the credibility or trustworthiness of the evidence

itself, as well as the motive, or other impeaching characteristics, of those

offering it.” Id. (quoting Argyrou v. State, 709 A.2d 1194, 1204 (Md.

1998)).

On review of a PCRA court’s ruling, we must defer to its factual

determinations, including those relating to the credibility of witnesses. See

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). The PCRA

court’s rulings must stand as long as they are supported by the record and

free of legal error. See id.; see also Commonwealth v. Mitchell, 105 A.3d

1257, 1277 (Pa. 2014) (as finder of fact, a “PCRA court judge may believe all,

some, or none of a particular witness’s testimony.”).

Here, on the one hand, the PCRA court found Robinson credible when

she testified both at trial and at a PCRA hearing regarding her identification of

Crumbley and post-trial recantation. The PCRA court emphasized that

Robinson had described the incident in detail. Further, the PCRA court had

assessed her demeanor firsthand, noting that she “shook uncontrollably

throughout her testimony and was clearly frightened to be involved in the

case.” PCRA Court Opinion, 12/13/2019, at 15. The PCRA court credited

Robinson’s explanation that she earlier attempted to recant her trial testimony

because she had been threatened into doing so indirectly by Crumbley and

the co-defendant. See id. at 13.

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On the other hand, the PCRA court found that Raglin lacked credibility

based on his demeanor and the lack of detail in his account. While Raglin

testified that Crumbley and Ebo were not the shooters, he also said that he

did not see the victim in the car in which he was shot, and that once he heard

gunfire, he dropped to the ground and stopped paying attention. Id.

In addition to the problems with the content of Raglin’s testimony, the

PCRA court was rightfully skeptical about the reasons why he had come

forward. Raglin, who was in jail in 2018, testified that he was randomly

prompted to give an exonerating statement in Crumbley’s favor by an

unnamed inmate who physically threatened him.

Nothing in Raglin’s testimony or elsewhere in the record explains how,

in 2018, this unnamed inmate could possibly know that Raglin saw the Mattox

shooting in 2011; nor did Raglin explain why this inmate would have reason

to threaten him due to his presence there. Up until then, it was unknown to

the police, Crumbley and even Raglin himself that he had witnessed a fatal

shooting. Raglin also did not know at the time he was threatened that

Crumbley and Ebo had been found guilty of murdering Mattox. According to

Raglin, he only learned the names of the victim and the accused after he was

released from incarceration and had the chance to research the incident on

the internet.

Based on the PCRA court’s assessment of Raglin’s testimony and the

evidence against Crumbley, we find no abuse of discretion. The record

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supports the PCRA court’s finding that Raglin’s account would have had

minimal value as compared to the evidence of Crumbley’s guilt. Robinson was

found credible, and there are too many holes in Raglin’s bizarre story for it to

likely result in a different outcome were a new trial granted.

III.

A.

Next, Crumbley asserts that his PCRA counsel was ineffective for failing

to raise two issues in his PCRA petition concerning trial counsel’s deficient

performance. Both of those underlying errors concerning trial counsel had

been raised in Crumbley’s direct appeal, and we declined to address their

merits for lack of preservation and because the asserted grounds of

ineffectiveness may only be raised at the post-conviction stage by way of a

PCRA petition. See generally Commonwealth v. Crumbley, 127 WDA

2016 (Pa. Super. June 21, 2017).

The present case is in the post-conviction stage, but the subject

ineffectiveness claims were not included in Crumbley’s PCRA petition.

Crumbley’s PCRA counsel declined to raise these two issues due to the

erroneous belief that they had already been fully litigated on the merits in

Crumbley’s direct appeal. Because the issues were, in fact, not fully litigated,

resulting in a waiver of those claims, Crumbley now asserts in his PCRA appeal

that his initial PCRA counsel was ineffective. Before reaching the merits of

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these layered ineffectiveness claims,7 we must determine whether they are

properly raised for us to review at this juncture.

In Pennsylvania, the right to post-conviction relief is statutory or “rule-

based” in nature, as codified in the PCRA and the Pennsylvania Rules of

Criminal Procedure, which provide that “the judge shall appoint counsel to

represent the defendant on the defendant’s first petition for post-conviction

collateral relief.” Pa.R.Crim.P. 904(C).

The PCRA affords courts authority to consider the merits of post-

conviction claims only so long as they comport with the PCRA’s procedural

requirements. PCRA claims are generally considered to be waived unless a

petitioner first asserts them in a PCRA petition within one year from the date

the judgment of sentence became final. See 42 Pa.C.S. § 9545(b).

Otherwise, an exception to the PCRA’s jurisdictional time-bar must apply. See

id. at § 9545(b)(1)(i)-(iii). A party must also preserve issues for appeal by

having them adjudicated at the earliest possible time and then listing them in

a 1925(b) Statement. See Pa.R.A.P. 302(a), 1925(b)(4).

Ineffective assistance of counsel is a recognized basis for relief under

the PCRA. A petitioner must establish by a preponderance of the evidence

____________________________________________

7 Crumbley’s ineffectiveness claims as to PCRA counsel are derived from his
underlying assertion that trial counsel performed deficiently and PCRA counsel
should have raised such issues in the amended PCRA petition; accordingly,
PCRA counsel could only be found ineffective if trial counsel was ineffective.
See Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012).

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that “the issue underlying the claim of ineffectiveness has arguable merit, that

defense counsel’s act or omission was not reasonably designed to advance the

interests of the defendant, and that the defendant was prejudiced – that is,

but for counsel’s errors, the outcome of the proceeding would have been

different.” Bradley, 261 A.3d at 390 (citing Commonwealth v. Pierce, 786

A.2d 203, 213 (Pa. 2001)). To show prejudice, a petitioner must demonstrate

a “reasonable probability” of a better outcome. See generally

Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008).

Asserting a claim of ineffective PCRA counsel has long been an

extremely difficult process.8 In almost all cases, the only viable way for a

petitioner to do so was to assert the claim within 20 days of a PCRA court’s

Rule 907 notice of its intent to summarily deny a PCRA petition. See

Pa.R.Crim.P. 907; see also Bradley, 261 A.3d at 386-87.

However, in Bradley, our Supreme Court outlined several reasons why

that process was a “largely impractical and ineffective” means of vindicating

the long-recognized right to effective post-conviction counsel. Id. at 399.

____________________________________________

8 It is much easier to seek relief from PCRA counsel’s per se ineffectiveness,
such as conduct which results in a petitioner’s complete loss of post-conviction
rights. See e.g., Commonwealth v. Parrish (Pa. 2020) (PCRA counsel
deemed ineffective per se by failing to file a timely Rule 1925(b) statement
and waiving client’s right to appellate review of order denying his PCRA
petition).

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Accordingly, our Supreme Court broke from precedent and instituted a new

procedure for asserting such claims:

We reject the current Rule 907 procedure by which a petitioner
may raise claims of ineffective assistance of PCRA counsel as
unworkable, and offer a modified and flexible . . . approach
allowing a petitioner to raise claims of ineffective PCRA counsel at
the first opportunity, even if on appeal. We conclude this
approach best recognizes a petitioner’s right to effective PCRA
counsel while advancing equally legitimate concerns that criminal
matters be efficiently and timely concluded.

Id. at 405.

In the present case, Crumbley has raised his claims of ineffective PCRA

counsel at the first practical opportunity, albeit on appeal from the denial of

his PCRA petition. Under Bradley, we may, therefore, consider those

preserved claims on the merits.

B.

First, Crumbley contends that his PCRA counsel was ineffective in failing

to allege trial counsel’s ineffectiveness when the prosecutor referred to

Crumbley in closing argument as an “angel of death.” The ostensible purpose

of this reference was to highlight the fear experienced by the critical

eyewitness, Robinson, and thereby convince the jury that the witness was

credible for having overcome that fear to testify at the trial:

I want to talk to you first about Saday Robinson. Credibility and
believability of a witness, you are the judges of the facts in this
case, you are to determine the credibility. You listen to the young
lady testify. You didn’t just listen with your ears, you could watch
her, especially if you were on this end of the jury box, she couldn’t
stop shaking the entire time. She is petrified. She said this is
seared into her brain, she will never forget these faces. And why

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would she say she saw the lighter skinned male, which is Ebo, and
say he looked at me, we locked eyes, I had seen him before. She
wasn’t afraid to say that and describe him, but the angel of
the [sic] death over here, Thaddeus Crumbley, with his
hoody up, that has what it takes to walk up to a man, stand
over him and blow his brains out, she wasn’t as hot on
identifying. She told the police, hey, come on in here, get in my
apartment, I don't want people to see me, snitches get snitches
[sic]. She doesn’t want to be next.

Trial Transcript, 8/31/2012, at p. 1437 (emphasis added).

This language was indisputably improper and inflammatory, and there

is no reasonable basis for counsel’s decision not to object to it. The merit of

the layered ineffectiveness claim, therefore, turns on whether the comment

was prejudicial for the purposes of the PCRA, i.e., whether Crumbley would

have had a reasonable chance of a better outcome in the proceedings had his

trial counsel made a timely objection. If so, then Crumbley’s PCRA counsel

would have to be found ineffective in failing to raise the issue in Crumbley’s

PCRA petition. See Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa.

Super. 2010) (“In determining a layered claim of ineffectiveness, the critical

inquiry is whether the first attorney that the [petitioner] asserts was

ineffective did, in fact, render ineffective assistance of counsel.”).

In a criminal trial, “the prosecutor must be free to argue that the facts

of record establish every element of the crime charged, and must be free to

respond fairly to the arguments of the defense.” Commonwealth v. Clancy,

192 A.3d 44, 65 (Pa. 2018). The bounds of “oratorical flair” afford the

prosecution significant leeway in this regard, but “when statements

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deteriorate into impermissible characterizations and inflammatory name-

calling that are divorced from the record or irrelevant to the elements of the

crime at issue, they are substantially unwarranted and must be scrutinized for

prejudicial effect[.]” Id.

To determine whether such a comment causes prejudice, courts must

consider the totality of the evidence and the full context in which the comment

was uttered. See id.; Commonwealth v. Spotz, 18 A.3d 244, 288 (Pa.

2011); see also Commonwealth v. Weiss, 776 A.2d 958, 968 (Pa. 2001)

(“[I]n order to evaluate whether the comments were improper, we do not look

at the comments in a vacuum; rather we must look at them in the context in

which they were made.”).

An ineffectiveness claim based on counsel’s failure to object to a

prosecutor’s comment has merit where it is demonstrated that the comment

deprived the petitioner of a constitutional or statutory right, such as the rights

to a fair trial and due process. See Commonwealth v. Tedford, 960 A.2d

1, 28-29 (Pa. 2008). “Reversible error occurs only when the unavoidable

effect of the . . . comments would prejudice the jurors and form in their minds

a fixed bias and hostility toward the defendant such that the jurors could not

weigh the evidence and render a true verdict.” Commonwealth v. Cox, 728

A.2d 923, 932 (Pa. 1999). “The touchstone is the fairness of the trial, not the

culpability of the prosecutor.” Tedford, 960 A.2d at 28.

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Courts have “not hesitated to set aside personal prosecutorial assertions

which lack a proper evidentiary foundation and which unjustly stigmatize the

accused in the eyes of the jury.” Commonwealth v. Johnson, 533 A.2d

994, 996 (Pa. 1987); see also Commonwealth v. Anderson, 415 A.2d 887

(Pa. 1980) (finding error where defendant was referred to as an “executioner”

carrying out an “assassination”); Commonwealth v. Gilman, 368 A.2d 253,

255 (Pa. 1977) (finding error where prosecutor referred to defendant as

“judge, jury, prosecutor, and ultimately executioner”).

By the same token, courts have often declined to find reversible error

where a prosecutor’s comment was based on the evidence and did not have

the unavoidable effect of preventing the jury from weighing the evidence

objectively. See Commonwealth v. Brown, 711 A.2d 444, 456 (Pa. 1998)

(finding that in the context of the entire trial of a gruesome murder, the

evidence supported prosecutor’s description of defendant as a “killer,”

“murderer,” and “slayer”); Commonwealth v. Johnson, 668 A.2d 97, 106–

07 (Pa. 1995) (finding no grounds for mistrial where prosecutor's description

of defendants as “henchmen” was “based on the reasonable inferences drawn

from the evidence”); Commonwealth v. Jones, 610 A.2d 931, 943 (Pa.

1992) (finding fair comment where description of defendants as “murdering,

child-killing, backshooting” trio, “slaughterers,” and executioners,” was

reasonably based on the evidence); Commonwealth v. D’Amato, 526 A.2d

300, 312 (Pa. 1987) (finding that prosecutor’s reference to the defendant as

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a “clever, calculating and cunning executioner” was permissible response to

the defense’s portrayal of defendant as being easily duped into making his

confession).

In the present case, the prosecutor’s “angel of death” comment is akin

to remarks that would not warrant relief even in the event of a

contemporaneous objection at trial. The Commonwealth attempted to prove

Crumbley’s guilt by relying on the testimony of an eyewitness, Robinson,

whose credibility was a central point of contention. Although Robinson had

reported to the police that she saw Crumbley murder the victim, she had also

at one point recanted her accusation, explaining in her trial testimony that she

had been threatened with violence if she took the stand. The certified record

reflects that Robinson displayed visible signs of fear while she testified.

The jury’s role was to assign weight to Robinson’s testimony, and they

were correctly instructed that part of that process was to gauge the demeanor

of the witness. If Robinson was truly afraid of Crumbley, it would have tended

to support her account that she witnessed the murder, that Crumbley

committed the crime, and that she feared for her own safety as a result.

Crumbley’s appearance and demeanor at the time Robinson testified was very

much relevant for the jury’s assessment of Robinson’s credibility.

By referring to Crumbley as an “angel of death,” the prosecutor was not

literally advising the jury to find Crumbley guilty because he was aligned with

malevolent supernatural forces – this would have unjustly stigmatized

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Crumbley and urged conviction based on facts not in evidence. See Johnson,

533 A.2d at 996. Rather, the prosecutor was using the imagery to

demonstrate to the jury why Robinson seemed to be disturbed by Crumbley’s

hooded visage and why her fear arguably made her more credible despite her

earlier recantation.

Since Robinson’s testimony and Crumbley’s physical appearance were

in evidence before the jury, and their respective appearances and demeanors

were relevant considerations, defense counsel could not have been ineffective

in allowing the prosecutor’s characterization and waiving a challenge to the

prosecutor’s comment for the purpose of appellate review. The comment

could not have impeded the jury from weighing the evidence and rendering a

true verdict, nor did it otherwise deprive Crumbley of the rights to due process

and a fair trial. Had counsel timely objected, there is no reasonable probability

that the outcome of the proceedings would have been different and, thus, as

to the layered ineffectiveness claim concerning PCRA counsel, no relief is due.

C.

Crumbley’s second layered ineffectiveness claim is that his PCRA counsel

failed to raise trial counsel’s ineffectiveness concerning the denial of a missing

witness jury instruction. We find no merit in this claim.

At trial, the Commonwealth presented testimony from investigating

detectives that Crumbley was initially arrested in connection with the Mattox

murder based on the out-of-court identification of a jailhouse informant,

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Richard Carpenter. Although the Commonwealth had served Carpenter with

a subpoena to testify at Crumbley’s trial, he did not appear and could not be

located by either party. The trial court issued a bench warrant for Carpenter’s

arrest, but to no avail.

Carpenter’s unavailability did not become established until after the trial

had already begun. In fact, the Commonwealth discussed Carpenter’s

identification of Crumbley in its opening remarks to the jury and stated its

intention to call him as a witness. Once it came to light that Carpenter’s

whereabouts were unknown and that he would not be testifying after all,

defense counsel asked the trial court to instruct the jury that it could infer

from the witness’ absence that his testimony would have been favorable to

Crumbley.9

The trial court denied the request, finding that it was not warranted

because the Commonwealth had given a satisfactory explanation for failing to

call him to the stand and the witness was equally available or unavailable to

____________________________________________

9 The missing witness adverse inference rule provides that

when a potential witness is available to only one of the parties to
a trial, and it appears that the witness has special information
material to the issues at trial, and the witness’s testimony would
not merely be cumulative, if such party does not produce the
testimony of this witness, the jury may draw an inference that the
witness’s testimony would have been unfavorable to the party
having control of the witness.

Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999).

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Crumbley and the Commonwealth. Although Crumbley’s trial counsel received

an adverse ruling as to the request for an instruction, and included the issue

in a post-trial motion, the issue was nevertheless waived for purposes of direct

appeal because counsel had not made a contemporaneous objection. See

Commonwealth v. Crumbley, 127 WDA 2016 at *11 (Pa. Super. June 21,

2017) (unpublished memorandum) (finding issue waived on direct appeal for

lack of preservation); see also Commonwealth v. Pressley, 887 A.2d 220,

224 (Pa. 2005) (holding that “[t]he pertinent rules [of Criminal Procedure] ...

require a specific objection to the charge or an exception to the trial court’s

ruling on a proposed point to preserve an issue involving a jury instruction”).

A missing witness instruction is appropriate where the “witness is

available to only one of the parties to a trial, and it appears this witness has

special information material to the issue, and this person’s testimony would

not merely be cumulative[.]” Commonwealth v. Evans, 664 A.2d 570, 573

(Pa. Super. 1995). Where the party does not present the witness, the jury

may be instructed that it can infer that the testimony of the witness “would

have been unfavorable.” Id.

However, a trial court may decline to issue this instruction if the uncalled

witness is equally available to both parties, not within the control of the party

against whom a negative inference is sought, or there is a satisfactory

explanation as to why the party failed to call the witness. See Evans, 664

A.2d at 573-74.

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In this case, Crumbley asserts that as to the merit of the underlying

claim, the trial court erred in denying a missing witness instruction once it

became clear that Carpenter would not be available to testify. Crumbley

emphasizes that Carpenter was part of a witness protection program, putting

him in the exclusive control of the Commonwealth and making him available

only to that party.

However, the record contains no evidence that Carpenter was

participating in a witness protection program by the time the trial had begun

on August 28, 2012. The record reflects, rather, that Carpenter’s participation

in witness protection had ceased months earlier, and that the Commonwealth

had no record of his location from that point on. See Pretrial Discovery

Hearing, 7/27/2012, at pp. 30-32.

The equal unavailability of the witness to both Crumbley and the

Commonwealth was a proper basis for the denial of a missing witness

instruction. Trial counsel, therefore, could not have been ineffective in failing

to object to the ruling, and the layered claim of PCRA counsel’s ineffectiveness

has no merit. See Burkett, 5 A.3d at 1270 (“If [trial counsel] was effective,

then subsequent counsel cannot be deemed ineffective for failing to raise the

underlying issue.”).

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/26/2022

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