Com. v. Williams, C.

J-S22012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES WILLIAMS :
:
Appellant : No. 1242 WDA 2022

Appeal from the PCRA Order Entered September 15, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004919-2016

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY OLSON, J.: FILED: AUGUST 14, 2023

Appellant, Charles Williams, appeals from the September 15, 2022 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541–9546. We affirm.

In a previous appeal, a panel of this Court summarized the relevant facts

of this case as follows.

Lisa Habedana testified at trial that she watched two black men
shoot at a car and run away. She called 911 and told them a
person may have been inside the car. Next, Brian Kennelly
testified that, while attending a family birthday party, he heard
a white car running and saw two black men walking toward the
car. [Forty-five] minutes later, he returned to the area to
retrieve his cell[ular tele]phone and observed that the same
white car was still there. When he returned once more to the
area after the birthday party, he saw that white car had crashed
into a curb, the passenger door was open and the body of a
deceased man, later identified as Chauncy Howard, was leaning
backward in the driver's seat.

Detective Christopher Braden testified that he was investigating
an unrelated offense when he heard gunshots. He was
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dispatched to the area of the fleeing suspects. He passed
another officer while looking for suspects. He received a radio
call from Officer Matt Smith for backup, with the call stating that
the suspects were at gunpoint. Officer Smith testified that he
responded to a shots fired call and while en route he received
an update that males had fled the scene. He stopped and spoke
with Jay Ashley who told Officer Smith that Ashley had seen two
young black males running. Officer Smith next observed a red
jeep with five black males. The jeep took off at a high rate of
speed and ran a stop sign. Officer Smith engaged his lights and
siren and pursued the vehicle. During this pursuit, Officer Smith
observed the back left passenger of the jeep throw a gun out of
the window. Two blocks later, the jeep made an abrupt stop
and a passenger exited the vehicle and ran. With the assistance
of other officers, Officer Smith secured the scene and recovered
the gun. He also observed a bag in the car which appeared to
him to contain narcotics.

Lorelei Como testified that she lived near the shooting and saw
someone jump over her wall and hide on her porch. She called
911 and described the person on her porch as a young black
male wearing dark pants and a dark hoodie. The police arrived
shortly thereafter.

[Lieutenant] Kevin Faulds testified that he responded to the
man on the porch call at Como's residence and discovered
Appellant hiding behind a bench on the porch. [Lieutenant]
Faulds said that Appellant yelled, “I do [not] have a gun.”
[Lieutenant] Faulds observed that Appellant was looking from
side to side for a possible escape route. Eventually,
[Lieutenant] Faulds patted down Appellant and felt what he
thought was a folding knife. The item was actually a loaded
.380 caliber magazine. The officer also recovered Appellant's
cell[ular tele]phone at that time. A canine officer, “Bruno,”
alerted to a nearby window well where the gun matching the
magazine was recovered.

In addition, Detective John Godleski testified as to the evidence
he recovered from the scene as part of his duties within the
Mobile Crime Unit. [Detective] Godleski collected the weapon
which had been thrown from the jeep and stated that a
magazine with six live rounds was found in the gun. The gun
from under the window well, a [Glock] .380 [] was collected and
found to contain a magazine with only two rounds. He also
recovered .380 and .40 [caliber] shell casings near the crashed

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white Chevy Malibu and a fired bullet from the victim's lap,
along with heroin, marijuana, several phones, and $3[,]253.37
in cash from inside the Malibu.

Dan Wolfe of the Allegheny County Crime Lab testified as an
expert witness on gun shot residue. A gunshot residue kit was
collected from Appellant and sent to the lab for testing. In
Wolfe's expert opinion, Appellant was exposed to gunshot
residue, meaning he either fired a gun, was near a gun that was
fired[,] or came into contact with a surface that had residue on
it. William Best, an expert on firearms and tool markings,
testified that the Glock .380 was operable. Sara Bitner, an
expert in forensic biology, testified that DNA was recovered
from the Glock and that Appellant could not be excluded as a
contributor to the DNA recovered. She further stated that only
1 in 584,800 African-Americans could not be excluded. She
stated that she could not conclude a DNA match between the
Glock and Appellant due to the presence of other DNA on the
Glock. Dr. Willis Ennis, an expert in forensic patholog[y],
determined the cause of death to be multiple gunshot wounds
and the manner of death to be homicide.

Detective Ray Murray of the Computer Crime Unit testified that
he ran a cell phone dump of the victim's phone which generated
an 850[-]page report. Of particular note, the victim and
Appellant exchanged text messages shortly before the victim
was killed. The last message, “Come outside,” was made from
Howard's phone at 2:15 p.m. Appellant responded “ait” at 2:22
p.m. The homicide call came in at 2:35 p.m., [13] minutes
later.

Rachel Harden testified that she and Howard were in a romantic
relationship and that Howard was the father of her child. She
testified that Howard was a drug dealer and that he used
Appellant as one of his runners. She stated that Appellant and
Howard knew each other well and that the two of them
appeared in a rap video together. She testified that she told a
detective on the date of the murder that Appellant and Howard
had an argument the night before.

Commonwealth v. Williams, 2020 WL 3397809 *1-*2 (Pa. Super. 2020)

(internal citation omitted).

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On January 12, 2016, the Commonwealth charged Appellant with

criminal homicide, criminal conspiracy, carrying a firearm without a license,

possession of a firearm by a minor, and persons not to possess a firearm. On

July 10, 2017, Appellant, along with a co-defendant, Tremond Allston,

proceeded to a jury trial. During the July 2017 trial, Appellant’s father

“approach[ed] one of [the] jurors” and was subsequently charged with

“aggravated jury tampering.” N.T. Trial, 7/10/17-7/14/17, at 850. The juror

was dismissed. Due to media coverage, however, several other jurors learned

about the incident. Id. at 850-870. As such, mistrials were requested by

both defendants, which were granted by the court. Id. at 871. Thereafter,

the Commonwealth dropped charges against Appellant’s co-defendant,

Tremond Allston. See N.T. Trial, 3/26/19-3/29/19, at 501.

On March 26, 2019, Appellant’s second jury trial commenced. On March

29, 2019, the jury found Appellant guilty of third-degree murder, carrying a

firearm without a license, possession of a firearm by a minor, and persons not

to possess a firearm. On June 24, 2019, the trial court sentenced Appellant

to an aggregate term of 260 to 520 months’ incarceration, followed by three

years’ probation. Williams, 2020 WL 3397809 at *2. This Court affirmed

Appellant’s judgment of sentence on June 18, 2020. Id. Our Supreme Court

denied allocatur on January 20, 2021. See Commonwealth v. Williams,

244 A.3d 450 (Pa. 2021).

Appellant filed the instant PCRA petition on July 13, 2021. The PCRA

court subsequently appointed counsel, who filed an amended PCRA petition

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on July 8, 2022. On August 11, 2022, the PCRA court entered an order

pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure,

declaring its intent to dismiss Appellant’s petition without a hearing. PCRA

Court Order, 8/11/22, at *1 (unpaginated). On September 15, 2022, the

court dismissed Appellant’s PCRA petition. PCRA Court Order, 9/15/22, at *1

(unpaginated). This timely appeal followed.

Appellant raises the following issue on appeal:

Did the [PCRA] court err in dismissing Appellant’s amended
[PCRA petition, which asserted that] trial counsel was
ineffective?

Appellant’s Brief at 4 (superfluous capitalization omitted).

Our standard of review is as follows:

Our review of a PCRA court's decision is limited to examining
whether the PCRA court's findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. With
respect to the PCRA court's decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing,
such a decision is within the discretion of the PCRA court and
will not be overturned absent an abuse of discretion. The PCRA
court's credibility determinations, when supported by the
record, are binding on this Court; however, we apply a de novo
standard of review to the PCRA court's legal conclusions[.]

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations

omitted).

On appeal, Appellant raises claims of ineffective assistance of counsel.

“[C]ounsel is presumed effective, and [the appellant] bears the burden of

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proving otherwise.” Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014),

quoting Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008). To prevail

on an ineffectiveness claim, an appellant must establish:

(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel's actions or failure to act; and (3)
[appellant] suffered prejudice as a result of counsel's error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.

Commonwealth v. Lesko, 15 A.3d 345, 373–374 (Pa. 2011), citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Failure to meet

any prong of the test will defeat an ineffectiveness claim. Commonwealth

v. Rainey, 928 A.2d 215, 224–225 (Pa. 2007). Counsel cannot be deemed

ineffective for failure to assert a baseless claim. Commonwealth v. Payne,

794 A.2d 902, 906 (Pa. Super. 2002).

To demonstrate prejudice, Appellant must show there is a reasonable

probability that, but for counsel's error, the outcome of the proceeding would

have been different. Commonwealth v. Spotz, 870 A.2d 822, 830 (Pa.

2005). When it is clear that a petitioner's ineffective assistance claim has

failed to meet the prejudice prong of the ineffectiveness test, the claim may

be dismissed on that basis alone, without a determination of whether the first

two prongs have been met. Rainey, 928 A.2d at 224-225; Commonwealth

v. Albrecht, 720 A.2d 693, 701 (Pa. 1998) (“If it is clear that [the a]ppellant

has not demonstrated that counsel's act or omission adversely affected the

outcome of the proceedings, the claim may be dismissed on that basis alone

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and the court need not first determine whether the first and second prongs

have been met.”). Herein, Appellant raises two distinct claims regarding trial

counsel’s alleged ineffectiveness. We will address each of Appellant’s claims

in turn.

First, Appellant argues that trial counsel was ineffective for failing to

object after Detective Robert Shaw testified that another individual, Devon

Wade, “identified to [the police officers] that . . . [Appellant] was in the rear

of the [red jeep] behind the [front seat] passenger.” Appellant’s Brief at 17.

Appellant claims Detective Shaw’s statement was inadmissible hearsay. Id.

In the alternative, Appellant argues that, even if Detective Shaw’s statement

were admissible for non-hearsay purposes, trial counsel erred in failing to

“ask[] the [t]rial [c]ourt for a [curative] instruction” to warn the jury that

Detective Shaw’s statement “was not to be used as substantive evidence.”

Id. at 20.1

“Hearsay is an out-of-court statement offered into evidence to prove the

truth of the matter asserted.” Pa.R.E. 801(c). “As a general rule, hearsay is

inadmissible as such evidence lacks guarantees of trustworthiness

____________________________________________

1 In disregard of our appellate rules, Appellant utterly failed to cite to the
record or otherwise “reference [] the place in the record where the matter
referred to appears.” Pa.R.A.P. 2119(c). Hence, we are permitted to deem
Appellant’s issue waived. See Milby v. Pote, 189 A.3d 1065, 1079 (Pa.
Super. 2018) (“We shall not develop an argument for an appellant, nor shall
we scour the record to find evidence to support an argument; instead, we will
deem [the] issue to be waived.”). The Commonwealth, however, directed our
attention to the relevant section of the trial transcripts. As such, we will
consider the merits of Appellant’s claim.

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fundamental to the Anglo–American system of jurisprudence.”

Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super. 2011), citing

Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa. Super. 2006).

“However, ‘an out-of court statement offered not for its truth but to explain

the witness's course of conduct is not hearsay’ and thus, is not excludable

under the hearsay rule.” Estepp, 17 A.3d at 945, citing Commonwealth v.

Rega, 933 A.2d 997, 1017 (Pa. 2007); see also Commonwealth v. Dent,

837 A.2d 571, 577 (Pa. Super. 2003) (“‘[A]n out-of-court statement offered

to explain a course of conduct is not hearsay.’”), quoting Commonwealth v.

Cruz, 414 A. 1032, 1035 (Pa. 1980). In general, a police officer’s testimony

concerning an out-of-court statement is admissible to explain course of

conduct. See Estepp, supra; Dargan, supra.

Herein, the relevant testimony is as follows:

[Assistant District Attorney (“ADA”) Ramaley]: Where
was Devon Wade in the [J]eep this day?

[Detective Shaw]: Devon Wade was the driver of the [J]eep.

[ADA Ramaley]: Okay. Through your investigation, were you
able to determine whose [J]eep he was driving?

[Detective Shaw]: It was his mother’s.

[ADA Ramaley]: Now, throughout this investigation or earlier
this week it was testified that Devon Wade used that [vehicle]
as a jitney, is that correct?

[Detective Shaw]: Yes.

[ADA Ramaley]: Okay. And I think we heard some testimony
that [a jitney is] basically an unlicensed taxi, is that correct?

[Detective Shaw]: That is correct.

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[ADA Ramaley]: Ok. Does Devon Wade, does he agree to
speak with you guys that day?

[Detective Shaw]: Yes.

[ADA Ramaley]: And based on his statement, do you make –
do you and Detective Abraham make an executive decision as
to what you were going to ask the Mobile Crime Unit to do with
respect to processing his [J]eep?

[Detective Shaw]: Yes.

[ADA Ramaley]: Okay. Tell the jury what you decided to have
analyzed or not analyzed and why.

[Detective Shaw]: Well, based on the information that Devon
Wade was giving us, he identified to us that a male passenger
named Devon Trowell was in the front seat passenger, a male
named Ceejay Jones was in the backseat in the middle,
[Appellant] was in the rear of the car behind the passenger, and
the other male was behind the driver.

[ADA Ramaley]: Did you decide to print the vehicle?

[Detective Shaw]: We did not.

[ADA Ramaley]: Why?

[Detective Shaw]: We had a statement from this individual
explaining where everybody was.

[ADA Ramaley]: When you say “this individual,” you are
talking about Devon Wade, right?

[Detective Shaw]: Yes.

[ADA Ramaley]: And did that statement include this issue of
being a jitney?

[Detective Shaw]: Yes.

[ADA Ramaley]: And what do we know about cars that are
used as jitneys?

[Detective Shaw]: People in and out. You know, it [is] much
different than if you [are] – I mean, you can even equate with
[] an Uber driver. They have people coming in and out of the
cars all the time.

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As you heard earlier, each person that enters a car or sits in
them [sic] seats, they deposit their own material, whether that
be fingerprints, DNA, that [is] kind of where we [are] at.

N.T. Trial, 3/26/19-3/29-19, at 558-560.

Upon review, we conclude that the Commonwealth did not introduce

Devon Wade’s out-of-court statement regarding Appellant’s location in the

vehicle for the truth of the matter asserted. Instead, the Commonwealth

offered Detective Shaw’s testimony, which incorporated Wade’s statement, to

explain the detective’s course of conduct in the investigation of this matter,

i.e., why the officers decided not to fingerprint Wade’s vehicle. Hence, an

objection to Detective Shaw’s testimony as offering inadmissible hearsay

lacked merit. “As counsel will not be deemed ineffective for failing to raise a

meritless claim, [Appellant] is not entitled to relief on this issue.”

Commonwealth v. Spotz, 896 A.2d 1191, 1222 (Pa. 2006).

Appellant, however, also challenges trial counsel’s failure to request a

curative instruction following Detective Shaw’s testimony. Appellant’s Brief at

20. The purpose of such an instruction would be to prevent the jury from

considering Wade’s incorporated out-of-court statement as substantive

evidence. Id. Because Wade’s statement as relayed by Detective Shaw was

“the only evidence that placed Appellant in the red [J]eep,” Appellant argues

that trial counsel lacked a reasonable basis for failing to request the issuance

of a cautionary instruction, and that trial counsel’s failure prejudiced him. Id.

at 18; see also id. at 22-24. We disagree.

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“It is well‑settled that evidence which is admitted for a limited purpose

must be accompanied by a limiting instruction to focus the jury’s consideration

of the evidence to its appropriate purpose.” Commonwealth v. Coleman,

230 A.3d 1042, 1048 (Pa. 2020). It is, however, equally “well[‑]settled that

the decision whether to seek a jury instruction implicates a matter of trial

strategy.” Lesko, 15 A.3d at 402. Indeed, our Supreme Court has recognized

that

“[c]ounsel are not constitutionally required to forward any and
all possible objections at trial, and the decision of when to
interrupt oftentimes is a function of overall defense strategy
being brought to bear upon issues which arise unexpectedly at
trial and require split-second decision-making by counsel.”
[Spotz, 870 A.2d at 832]. Under some circumstances, trial
counsel may forego objecting to an objectionable remark or
seeking a cautionary instruction on a particular point because
“[o]bjections sometimes highlight the issue for the jury, and
curative instructions always do.” Id.

Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012) (parallel citations

omitted).

A review of the trial transcripts reveals that, as a matter of trial strategy,

trial counsel sought to cast doubt upon the Commonwealth’s case, as well as

Devon Wade’s credibility, by highlighting the extent of the Commonwealth’s

reliance on Wade and contrasting that with Wade’s absence during Appellant’s

trial. This was evidenced during Detective Shaw’s cross-examination which,

in relevant part, is as follows:

[Defense counsel]: Okay. So[,] what we have is a car pulled
over with five individuals in it. [] Wade was driving, right?

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[Detective Shaw]: Yes.

[Defense counsel]: And you [have] been in the courtroom for
this entire trial, and you heard the gunshot residue expert
testify that the only other person besides [Appellant] that was
positive for gunshot residue was [] Wade, did you not?

[Detective Shaw]: Yes.

[Defense counsel]: Okay. So[, Wade] is driving a vehicle that
is stopped shortly after the homicide and he is charged with
robbery and conspiracy, but has yet to come to trial on that. Is
that all fair?

[Detective Shaw]: Yes.

[Defense counsel]: Okay. The passenger was [Devon]
Trowell?

[Detective Shaw]: Front seat passenger was Devon Trowell.

[Defense counsel]: And he was a cousin [of] Wade’s?

[Detective Shaw]: Correct.

[Defense counsel]: And he is deceased?

[Detective Shaw]: Yes.

[Defense counsel]: As you sit here today knowing the
statements you were given by [] Wade, we do [not] know who
the person was behind the driver, do we?

[Detective Shaw]: That matter is under investigation and
there are – to use the cliché term – persons of interest that
acted in connection with [Appellant].

[Defense counsel]: Right. And the investigation is ongoing.
We [have] been told that by [ADA] Ramaley.

But through your investigation, other than [] Wade’s
testimony or statement to you that [Appellant] was in
the backseat of that [J]eep, what evidence is there that
my client was ever in the [J]eep or jumped out of the
[J]eep?

[Detective Shaw]: Other than the statements, nothing.

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[Defense counsel]: Other than the statements that were
from a person we know now lied to you and perjured
himself?

[Detective Shaw]: Correct.

N.T. Trial, 3/26/19-3/29/19, at 587-588 (emphasis added).

Then, during defense counsel’s closing statement, he argued:

[Daniel] Wolfe testified about gunshot residue. Now this is
where I [am] done. I [am] like Admiral Stockdale at the
Vice[-]Presidential Debate. Who am I and why I am I here?

Because [Appellant] has gunshot residue on his hands, he [is]
apprehended close in time, a half a mile away from the
shooting. He did it. This case is open and shut. Except that
their own expert testified there are more than one way you get
gunshot residue on your hands.

Specifically, if you fired a gun, if you handled a gun, if you were
near a gun that had been fired or if you touched – I [am] sorry,
came into contact with the surface with gunshot residue on it.

How did [Appellant] get gunshot residue on his hands? Let me
see which eyewitness called by the Commonwealth has my
client shooting Chauncy Howard.

That [is] where I [am] guilty of being obnoxious or abrasive
again. They do [not] have one. They do [not] have a statement
from anybody that came in here, took the stand, swore an oath
and told you [Appellant] shot and killed Chauncy Howard. Not
one.

They can [not] call Devon Wade, who is the most
damning witness against my client back in January of
2016 because he [is] a perjurer and a liar.

That [is] why that young man in the back row after being
prosecuted for 30 months, his case had to be nol-prossed
because their witnesses lied to Detective Shaw, because they
perjured themselves in the courtroom in 2017.

Does that give you reason to pause or hesitate about
[Appellant’s] guilt? I submit that it should. It will. And
that, ladies and gentlemen, is reasonable doubt.

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Id. at 715-717 (emphasis added). Counsel continued, further stating:

[Sara] Bitner testified [about] my client’s DNA, the
Commonwealth will tell you that her testimony equates to
[Appellant’s] DNA is on a [Glock] 380 they found in close
proximity to him when he [is] found in close proximity to the
murder, close in time. Open and shut. He shot Chauncy
Howard. Except there [are] no 380 bullets in Chauncy Howard.

The bullets recovered from a [Glock] 380 are in the car coming
from the outside of the car toward the car, except that their
own expert under cross-examination admitted that there is
additional testing that could have been done because their
expert’s final word, this young man is, and I quote, not excluded
as a contributor.

Does that give you reason to pause or hesitate about his DNA
on that firearm? There [is] a mix sample. All kinds of people
handled that firearm. That [is] why she can [not] say with
anymore certainty than [one] in 584,000 he [is] not excluded.

And the government during their direct suggested to you,
through her that, well, we got to get almost 600,000 people
together before we can find one more person that we can label
as not excluded.

And [] Bitner on cross said, [n]o, that [is] not accurate. The
very next person through that door could be labeled not
excluded based on the policy of the Allegheny County Office of
the Medical Examiner.

She admitted that they have, the government, sent mixed
sample to other institutions for further testing. They did not in
this case. Maybe because they had witnesses that said
[Appellant] did it. But they do [not], and the DNA evidence in
this case should cause you to pause or hesitate.

Devon Wade, the liar and perjurer that they did [not] call
this time, I guess because maybe they did [not] want me
to be able to cross-examine him or they did [not] want
him to lie to the 13 of you, I do [not] know, but he had
gunshot residue on his hands as well. It does [not]
matter. It does [not] matter that Tremond Allston did
[not] and they still prosecuted him.

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Id. at 717-719 (emphasis added).

Based upon the foregoing, it is apparent that, as a matter of strategy,

trial counsel attempted to use the Commonwealth’s failure to call Devon Wade

as a witness during Appellant’s trial to undercut Wade’s credibility and, in turn,

call into question the veracity of his statement which placed Appellant in the

backseat of the red [J]eep on the day in question. Hence, counsel could have

reasonably believed that requesting a curative instruction following the

introduction of Devon Wade’s statement by Detective Shaw would undermine

his effort to cast doubt on the Commonwealth’s case by emphasizing the

extent of the prosecutor’s reliance on an untrustworthy witness such as Wade.

Thus, it cannot be said as a matter of law that trial counsel lacked a reasonable

basis in deciding not to request a jury instruction following the reference to

Wade’s statement during Detective Shaw’s testimony.

Moreover, Appellant’s claim of error fails for lack of prejudice. See

Spotz, 870 A.2d at 833 (“Absent a showing of such prejudice, the claim of

ineffective assistance fails.”). Even without the introduction of Wade’s

statement through Detective Shaw, the Commonwealth presented ample

evidence demonstrating Appellant’s guilt, including,

[c]ell phone evidence [placing] Appellant at the crime scene.
Gunshot residue [was found on Appellant's person, Appellant's]
DNA [was found on the discarded gun, Appellant was found in
possession of a] .380 [caliber] clip with missing cartridges, [a]
.380 [caliber firearm was] found discarded in the window well
near where Appellant was hiding[, and .380 caliber cartridge
casings were found at the murder scene].

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Williams, 2020 WL 3397809 at *3. Accordingly, we conclude that Appellant

is not entitled to relief on this claim.

Second, Appellant takes issue with trial counsel’s cross-examination of

Rachel Harden, the victim’s paramour, claiming that he “open[ed] the door to

the prior mistrial.” Appellant’s Brief at 24. This cross-examination, per

Appellant, resulted in the trial court’s issuance of a prejudicial cautionary

instruction to the jury. Id. at 28.2 We disagree.

The issue arose because of the following testimony and sidebar

discussions:

[Defense counsel]: You want justice for Chauncy Howard.
That [is] why you are here today?

[Rachel Harden]: Yes.

[Defense counsel]: That [is] why despite being a thief, a liar
and a drug dealer, you are telling these 14 citizens the truth
today.

[Rachel Harden]: Yes, I am.

***

[Defense counsel]: Did you want the same thing when you
testified against Tremond Allston?

[ADA Ramaley]: Your Honor, may we approach?

The court: Yes.

(A discussion at sidebar was held as follows).

[ADA Ramaley]: [] Harden did not testify against Tremond
Allston and, in fact, stated she did not know him, and with that,
____________________________________________

2 The Commonwealth, not Appellant, directed this Court’s attention to the
relevant trial transcripts. Again, we admonish Appellant for his failure to
provide any citation to the record in violation of Pa.R.A.P. 2119(c).

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I submit that [defense counsel] opened the door to the last trial
and what happened at the last trial, it was his client that caused
the mistrial.

The court: It was his client.

[Defense counsel]: It was my client’s father.

The court: It was not – that part is not – he did not open the
door to that. He will be corrected, I [am] sure, on re-redirect
because that error in his questioning can [not] go without
challenge. At this point, I think, [defense counsel], on the issue
of whether she is testifying truthfully, you have made your point
and I will sustain the Commonwealth’s objection. You are not
being argumentative with regard to that issue.

[Defense counsel]: Yes ma’am.

[ADA Ramaley]: Your Honor, I [am] going to ask for the
testimony that was testified at the last trial be entered into
evidence.

The court: Her testimony?

[ADA Ramaley]: Her testimony. She said today about
[Appellant], but did [not] say anything about Tremond Allston.
We can consider it and think about it for tomorrow morning.

The court: Yes.

[ADA Ramaley]: That [is] fine.

The court: Thank you.

(The discussion at sidebar concluded.)

N.T. Trial, 3/26/19-3/29/19, at 455-458 (superfluous capitalization omitted).

On re-redirect, Harden clarified that she did testify during Appellant’s

first trial, but did not testify against Tremond Allston, as she did not know

him. Id. at 458-459. During a subsequent discussion at sidebar, the following

exchange occurred:

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[ADA Ramaley]: Your Honor, I ask also the court to consider
the issue as to whether we can now put in what happened at
the prior trial because [defense counsel] has opened the door
to the fact that there was a prior trial and –

[Defense counsel]: That door was open in openings. The door
has been open since the beginning of trial.

What happened by a third party other than my client is not
relevant to this trial.

The court: Out of an abundance of caution, I am going to
consider that over the evening hour, but it is my position, as I
stated earlier, that the reason for the earlier mistrial – that door
has not been opened. The reason for it, it is possible that I will
consider allowing the Commonwealth to introduce evidence of
the earlier proceeding ending in a mistrial, but that it would be
– that it be specifically tailored . . . or you can reach a
stipulation that the earlier trial ended in a mistrial, that through
no fault of the Commonwealth or something to that affect.

[Defense counsel]: Or the defendant.

[ADA Ramaley]: Your Honor – no. I mean[,] that [is] the
point.

The court: Yeah, I do [not] – I do [not] want to go that far in
the stipulation because –

[Defense counsel]: His father pled to jury tampering.

The court: I know.

[Defense counsel]: There was no testimony that [Appellant],
who was incarcerated at the time, instructed him to do that or
participated in it.

So[,] I understand why there was a mistrial, but they can [not]
put it on [Appellant].

The court: I am not going to allow them to put it on
[Appellant].

[Defense counsel]: Okay.

The court: But I am probably not going to allow the ultimate
statement that through no fault of [Appellant] –

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[ADA Ramaley]: Your Honor, I would like to supplement with
in opening, I personally made a point of not saying trial. I said
we arrested and prosecuted. I did not say go to trial. So
prosecuting means just filing charges, one and, two, it has been
alluded over and over again in his opening argument and
throughout his case that the reason this case, this trial went
before was because of the fact of Tremond Allston – we falsely
filed charges against Tremond Allston, and for purpose of the
record, that is absolutely incorrect. That the evidence that
ultimately caused the Commonwealth to withdraw charges on
Tremond Allston came months after the mistrial.

The court: That is an accurate statement. So I think I [will]
consider this and I would urge the parties to consider it as well,
that it would certainly be better for the two attorneys to present
through stipulation to the jury some explanation for why there
was a prior trial now that – instead of using the term
proceedings, I think [defense counsel] did specifically say,
“[Y]ou testif[ied] at the trial, at the earlier trial against []
Allston,” because that often does raise in the jury “what
happened, was the prior jury hung,” because they do [not]
necessarily understand mistrial.

Id. at 461-464 (superfluous capitalization omitted).

Ultimately, the Commonwealth and defense counsel reached a

stipulation, and the trial court issued the following instruction to the jury:

In July of 2017, the cases of Commonwealth versus [Appellant]
and Commonwealth versus Tremond Allston proceeded to a jury
trial.

Prior to closing arguments, the trial resulted in a mistrial
through no fault of the Commonwealth or any of the
Commonwealth’s witnesses.

The subsequent withdrawal of charges against Tremond Allston
was unrelated to the mistrial.

Id. at 500-501.

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Upon review, we conclude that Appellant’s claim fails for lack of

prejudice—and does so for two reasons. First, in arguing that the trial court’s

instruction was “inherently prejudicial,” Appellant assumes, without any

substantiation, that “the phrase ‘through no fault of the Commonwealth or

any of the Commonwealth witnesses[,]’ would lead the jurors to suspect [the

mistrial] was through the fault of [] Appellant” and, in turn, lead the jurors to

“view that as consciousness of guilt.” Appellant’s Brief at 28-29. Not only is

Appellant’s claim utterly speculative, but it is also untrue. A mistrial may

occur for multiple reasons. In fact, in this instance, the mistrial was not

specifically caused by Appellant or Appellant’s father’s attempted tampering,

but because other jurors learned of Appellant’s father’s actions from news

reports. Moreover, as Appellant’s claim is inherently speculative, he is unable

to make the requisite showing of prejudice, i.e., that but for counsel’s error,

the outcome would have been different, particularly in view of the compelling

evidence of guilt offered by the Commonwealth. Spotz, 870 A.2d at 830.

Second, at the conclusion of Appellant’s trial, the trial court issued

additional jury instructions, including that the jury were required to “base

[their] decision strictly on the evidence in this case” which consisted only of

“the testimony of the witnesses which [they] heard and the exhibits which

[they saw] introduced.” N.T. Trial, 3/26/19-3/29/19, at 751; see also id. at

755 (the court explaining that “it was for [the jury] and [the jury] alone to

decide the case based on the evidence as it was presented and in accordance

with the[] instructions” issued). In so doing, the trial court directed the jury

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to evaluate Appellant’s innocence or guilt based only upon the evidence

presented at the current trial, not speculation as to the cause of a prior

mistrial. “It is settled law that, absent evidence to the contrary, the jury is

presumed to have followed the trial court's instructions.” Commonwealth v.

Laird, 988 A.2d 618, 629 (Pa. 2010). Appellant does not point to any

evidence to the contrary. Appellant, therefore, is not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/14/2023

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