J-S33002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DONALD F. SMITH
Appellant No. 1967 WDA 2014
Appeal from the PCRA Order August 22, 2014
in the Court of Common Pleas of Venango County Criminal Division
at No(s):CP-61-CR-0000733-2007
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, * J.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 27, 2016
Appellant, Donald F. Smith, appeals pro se from the order entered in
the Venango County Court of Common Pleas, denying his first Post
Conviction Relief Act1 (“PCRA”) petition after a hearing. Appellant presents
numerous claims of ineffective assistance of counsel. Additionally, Appellant
claims that PCRA counsel was ineffective and asserts that the PCRA court
erred in permitting PCRA counsel to withdraw. We affirm.
The evidence underlying Appellant’s convictions is relatively
straightforward. Appellant and a co-defendant, Shane Carey, confronted the
complainant, Ian Jordan, about money Jordan owed Appellant. Appellant
and co-defendant then drove Jordan in Carey’s car, verbally threatened him,
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S §§ 9541-9546.
J-S33002-16
and physically struck him. When the car came to a stop sign, Jordan fled
into a nearby cornfield. Appellant and Carey chased Jordan on foot, and
Carey tackled him. Appellant and Carey proceeded to assault Jordan in the
field. Afterwards, Appellant and Carey returned to the car and left the
scene. Jordan walked back to the roadway and received assistance from a
passing motorist, who called 911. Jordan did not immediately report the
incident. Jordan reported the encounter to the police later in the day and
stated he was “pistol-whipped.” He later stated that Appellant held a knife
to his throat when they were in the car.
Officers obtained a warrant to search Appellant’s residence. The
warrant listed Appellant’s business address, but a detective testified at trial
that he telephoned the magisterial district magistrate with the correct
address for Appellant’s residence. During the search, officers discovered a
small amount of marijuana, paraphernalia related to the use of marijuana, a
white powder on a plate, and a black, flip-type, locking blade knife. A
detective testified at trial that the knife was capable of being opened with a
motion of the wrist. Officers obtained a second search warrant for drug
evidence and recovered a prescription bottle of dihydrocodone and one
tablet of hydromorphone. The powder initially observed by the officers was
determined to be dihydrocodone. Appellant was taken into custody and
denied involvement in an altercation with Jordan during a videotaped
interrogation. The videotape of Appellant’s interrogation was played at trial.
-2-
J-S33002-16
Subsequently, Appellant and Jordan were confined at the same jail.
Jordan asserted that Appellant, both personally and through other inmates,
threatened him and offered him money not to testify.
Appellant was charged as follows. As to the initial incident involving
Appellant, Carey, and Jordan, Appellant was charged with kidnapping,2
conspiracy,3 aggravated assault,4 simple assault,5 coercion,6 possession of a
an instrument of crime,7 recklessly endangering another person,8 and
terroristic threats.9 As to the contraband discovered during the search of his
residence, Appellant was charged with possession with intent to use drug
paraphernalia10 and possession of a small amount of marijuana.11 Appellant
2
18 Pa.C.S. § 2901(a)(3).
3
18 Pa.C.S. § 903.
4
18 Pa.C.S. § 2702(a)(1).
5
18 Pa.C.S. § 2701(a)(1), (3).
6
18 Pa.C.S. § 2906(a)(1).
7
18 Pa.C.S. § 907(b).
8
18 Pa.C.S. § 2705.
9
18 Pa.C.S. § 2706.
10
35 P.S. § 780-113(a)(32).
11
35 P.S. § 780-113(a)(31)(ii). Appellant was not charged with possession
of the prescription substances.
-3-
J-S33002-16
was also charged with intimidation of a witness12 for the alleged interactions
at the prison. The charges were consolidated for the purposes of trial.
Appellant was initially represented by Michael Antkowiak, Esq., who
undertook plea negotiations with the Commonwealth. The trial court
withdrew its assent to the plea agreement before sentencing. See N.T.,
3/25/08, at 18. Subsequently, Appellant was represented by Wayne
Hundertmark, Esq. (“pretrial counsel”). On January 20, 2009, the court
appointed D. Shawn White, Esq. (“trial counsel”) to represent Appellant.
Jury selection commenced on March 9, 2009, and trial began on March
16, 2009. On March 21, 2009, the jury found Appellant guilty of one count
each of kidnapping, criminal conspiracy, possession of a weapon, terroristic
threats, possession with intent to use drug paraphernalia, and simple
assault. The jury acquitted Appellant of aggravated assault, criminal
coercion, recklessly endangering another person, and intimidation of a
witness. The trial court separately found Appellant guilty of possession of a
small amount of marijuana.
On April 15, 2009, the trial court sentenced Appellant to an aggregate
term of ten to twenty years’ imprisonment and a consecutive five-year term
of probation. The court’s sentence was based on the imposition of a
mandatory “second strike” sentence for kidnapping. See 42 Pa.C.S. § 9714.
12
18 Pa.C.S. § 4952.
-4-
J-S33002-16
Appellant timely appealed, and this Court affirmed. Commonwealth v.
Smith, 901 WDA 2009 (Pa. Super. Mar. 14, 2011), appeal denied, 325 WAL
2011 (Pa. Sept. 27, 2011). The Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on September 27, 2011. Trial
counsel represented Appellant during his direct appeal.
Appellant filed a timely pro se PCRA petition, which the court received
on December 13, 2011.13 Appellant subsequently filed a supplemental pro
se petition on December 13, 2012.14 The court appointed counsel, who did
not amend Appellant’s petition. Appellant, represented by Jason R. Lewis,
13
In his initial pro se petition, Appellant raised numerous claims based on
(1) the trial court’s questioning of witnesses and highlighting of evidence
during its instructions to the jury, (2) the Commonwealth’s elicitation of false
testimony from its witnesses, suppression of favorable evidence, “coaching”
of its witnesses, misstatement of the evidence in its opening and closing
argument, and interjection of its personal beliefs regarding the credibility of
its witnesses and Appellant’s bad character in its closing argument, (3) the
playing of his videotaped statement to police in which the officer referred to
his prior record and he invoked his right to counsel, (4) the Commonwealth’s
and the witnesses’ referencing of his prior bad acts, namely, evidence that
he previously assaulted Jordan with a retractable baton, (5) trial counsel’s
refusal to accept the trial court’s offer to instruct the jury that Carey could
be considered a “corrupt source,” (6) trial counsel’s stipulation to the
foundation for and the admission of evidence, (7) trial counsel’s failure to
seek suppression of the search warrant, and (8) the seating of Juror 8, the
foreperson of the jury, who was an editor of a newspaper that ran numerous
stories regarding the incident.
14
In his supplemental pro se PCRA petition, Appellant added claims based
on (1) the immunity agreement extended to Jordan, (2) the imposition of
sentence based on two inchoate offenses, and (3) ineffectiveness of counsel
during plea negotiations.
-5-
J-S33002-16
Esq. (“PCRA counsel”),15 proceeded to several evidentiary hearings
conducted on December 12, 2012, April 30, 2013,16 and June 4, 2013, at
which Appellant and all prior counsel testified.17 Meanwhile, trial counsel
campaigned for election as the Venango County District Attorney. Trial
counsel was elected in November 2013.
On June 5, 2014, PCRA counsel filed a petition to withdraw and a no-
merit brief,18 which purported to list and discuss the issues raised in
Appellant’s pro se initial and supplemental petitions. Appellant received an
extension of time and filed a pro se objection to the no-merit brief on June
26, 2014. He asserted PCRA counsel’s brief was defective based on the
“second prong of Finley,” namely, failing to review all issues he wished to
raise. See Finley, 550 A.2d at 215. Appellant asserted PCRA counsel also
15
The PCRA court initially appointed Matthew C. Parson, Esq., vacated its
appointment of Attorney Parson, and appointed Attorney Lewis on December
16, 2011.
16
Appellant, at the beginning of the second hearing on April 30, 2013,
asserted PCRA counsel was ineffective and alleged a conflict of interest
because he believed trial counsel had become District Attorney. Appellant
withdrew his request for new counsel when confronted with the alternative
of proceeding pro se with standby counsel. The PCRA court also noted that
trial counsel was running for District Attorney, but the primary elections had
yet to occur.
17
Additionally, Sergeant Merle Giesey of the Venango County Sherriff’s
Office testified regarding a meeting between the Assistant District Attorney
and Appellant.
18
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-6-
J-S33002-16
erred because there was merit to his issues regarding (1) trial counsel’s
refusal of a corrupt source instruction, (2) trial counsel’s stipulations to
evidence, (3) a conflict of interest based on trial counsel’s election to District
Attorney, (4) the Commonwealth’s opening and closing statement, and (5)
the illegal imposition of a mandatory minimum sentence. Appellant
developed one issue through the framework of PCRA counsel’s
ineffectiveness, namely, trial counsel’s rejection of the trial court’s offer to
issue a corrupt source instruction. Appellant requested that the PCRA court
deny PCRA counsel’s request to withdraw or appoint new counsel.
On August 22, 2014, the PCRA court denied Appellant’s petition and
granted PCRA counsel’s motion to withdraw. Appellant filed a timely notice
of appeal on September 8, 2014. The PCRA court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and Appellant complied.19
Appellant continued to allege that PCRA counsel failed to send him a
complete record to develop his claims on appeal. On June 8, 2015,
Appellant also filed an application for relief alleging a material conflict of
interest based on trial counsel’s election to District Attorney. On July 21,
2015, this Court remanded the case to the trial court to ensure Appellant
received the PCRA hearing transcripts. On August 8, 2015, the Office of the
19
Appellant’s pro se Rule 1925(b) statement was identical to his questions
presented on appeal listed below.
-7-
J-S33002-16
Attorney General entered its appearance on behalf of the Commonwealth.
This appeal followed.
Appellant presented the following questions on appeal:
Whether the lower court abused its discretion in finding
that Appellant was not deprived of his substantive rights
pursuant to the Sixth (6th) and Fourteenth (14th) U.S.C.A.
and/or Article 1, § 9 rights under the Pennsylvania
Constitution to effective assistance of counsel on direct
appeal and Appellant’s rule based right to effective
assistance of counsel on initial-review collateral
proceedings that raises a distinct legal ground of
ineffective assistance of counsel for PCRA review of
ineffective assistance of counsel pursuant to the following
claims that have merit[:]
I. Layered ineffective assistance of counsel where
[trial/direct appeal] counsel was ineffective where
the Superior Court found all of Appellant’s issues
waived on direct appeal and PCRA counsel was
ineffective for failing to competently litigate the
claim?
II. Layered ineffective assistance of counsel for trial
counsel failing to accept a corrupt and polluted
source jury instruction and failing to competently
bring forth the claim?
III. Layered ineffective assistance of counsel for
failing to file a pre-trial suppression motion on an
invalid search warrant and failing to competently
litigate the claim?
IV. Layered ineffective assistance of counsel for
failing to raise the sufficiency of the evidence and
failing to litigate the claim?
V. Layered ineffective assistance of counsel for
failing to raise a biased juror claim where the Editor
of the local newspaper published nine (9) front page
stories of Appellant’s case and was sitting as the jury
foreman for failing to litigate the claim?
-8-
J-S33002-16
VI. Layered ineffective assistance of counsel for
failing to competently litigate the immunity claim of
the victim where [Appellant’s] jury was not made
aware of this immunity and where the victim had
convictions of crimen falsi?
VII. Layered ineffective assistance of counsel for
failing to competently litigate the prosecutor’s fraud
upon the court denying a meeting ever took place
that is contrary to a Venango County Sheriff’s PCRA
testimony (Pgs. 125-130, PCRA notes of testimony
contrary to the District Attorneys fraudulent
assertions of the hearing held March 6, 2009, pgs. 3-
5, 7) as well as prosecutorial overreaching
characterizing Appellant as a “loan shark”?
VIII. Layered ineffective assistance of counsel for
failing to litigate a conflict of interest of the District
Attorney who was Appellant’s trial attorney
mandating intervention by the State Attorney
[General’s] Office?
[IX.] Whether Appellant’s PCRA counsel was
ineffective for failing to provide the pro se Appellant
with day one (1) and four (4) of the PCRA notes of
testimony so that Appellant can competently litigate
his claims on appeal where [PCRA] counsel filed a
“no-merit” [brief] upon Appellant?
Appellant’s Brief at 4-5.20
Preliminarily, we note that Appellant suggests challenges to (1) PCRA
20
Appellant’s brief does not conform with Pa.R.A.P. 2119(a), which requires
that “the argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part—in
distinctive type or in type distinctively displayed—the particular point treated
therein.” Pa.R.A.P. 2119(a). This defect does not preclude meaningful
review of his claims or arguments. We will address Appellant’s issues in a
different order than suggested by his statement of questions presented.
-9-
J-S33002-16
counsel’s failure to provide him complete copies of the PCRA hearing
transcripts, (2) PCRA counsel’s failure to assert a conflict of interest based
on trial counsel’s election as District Attorney, and (3) trial counsel’s
ineffectiveness for failing to challenge the sufficiency of the evidence on
direct appeal. See id. at 4-5. However, Appellant later asserts the first two
challenges are “moot.” See id. at 62. Moreover, Appellant developed a
challenge based on the sufficiency of the evidence for the first time in his
Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 302(a); Commonwealth v.
Fletcher, 986 A.2d 759, 794 (Pa. 2009) (holding claims of ineffectiveness
cannot be raised for first time on appeal). In any event, he did not set forth
an argument regarding the merits of that claim in his brief. See
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014). Accordingly,
these three issues are waived, and we decline to consider them in this
appeal.
In the remainder of his pro se brief, Appellant contends that the PCRA
court erred in accepting PCRA counsel’s no-merit brief and denying PCRA
relief. Appellant’s Brief at 11. He argues that he is entitled to a remand for
the appointment of new PCRA counsel or a new trial based on the following
issues:
(1) trial counsel’s failure to impeach Jordan by referencing
an order granting him immunity, id. at 57-62;
(2) trial counsel’s refusal of a corrupt source jury
instruction regarding his codefendant Shane Carey, who
testified for the Commonwealth, and the failure to have
- 10 -
J-S33002-16
the trial court issue the same instruction regarding the
complainant Ian Jordan, id. at 12-22;
(3) trial counsel’s failure to object to or challenge a pattern
of prosecutorial misconduct—including (a) the trial court’s
denial of a discovery motion based on an alleged
fraudulent representation that the prosecutor did not meet
with Appellant and Detective Baughman before trial, id. at
43-49, (b) the Commonwealth’s failure to disclose a police
file to link Appellant to codefendant Carey during the police
investigation, id. at 64, (c) the alleged coaching of
witnesses, id. at 49, 64-65, (d) the prosecutor’s opening
statement that painted Appellant as a “bad person,” id.,
(e) the prosecutor’s closing argument that Appellant was a
“loan shark,” id. at 49-50, and (f) the prosecutor’s
discussion of her own medical condition during closing
arguments, id. at 51-55;
(4) trial counsel’s failure to object to the trial court’s
questioning of witnesses and summation of the evidence
during the jury charge, id. at 70;
(5) trial counsel’s failure to strike Juror 8, the foreperson
of the jury, who was an editor at newspapers that
published stories about the case before trial, id. at 23-32
(6) trial counsel’s failure to seek suppression of the
evidence seized under the search warrants for his
residence, id. at 33-43; and
(7) trial counsel’s ineffectiveness on direct appeal; id. at
63, 66-69.
The standards for reviewing the PCRA court’s denial of a PCRA claim
are as follows:
[A]n appellate court reviews the PCRA court’s
findings of fact to determine whether they are
supported by the record, and reviews its conclusions
of law to determine whether they are free from legal
error. The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed
- 11 -
J-S33002-16
in the light most favorable to the prevailing party at
the trial level.
Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014),
appeal denied, 104 A.3d 523 (Pa. 2014) (some citations omitted).
When reviewing the PCRA court’s decision to relieve counsel from
representation of a petitioner, we consider the following principles. A PCRA
petitioner has a rule-based right to counsel in a first PCRA proceeding.
Commonwealth v. Figueroa, 29 A.3d 1177, 1180 (Pa. Super. 2011).
Generally, counsel’s duty is either to amend a pro se petition or to seek
withdrawal from representation if he finds no merit to the petition.
Commonwealth v. Karanicolas, 836 A.2d 940, 946 (Pa. Super. 2003).
“The Turner/Finley decisions provide the manner for post-conviction
counsel to withdraw from representation.” Commonwealth v. Rykard, 55
A.3d 1177, 1184 (Pa. Super. 2012). Under Turner/Finley,
[i]ndependent review of the record by competent counsel
is required before withdrawal is permitted. Such
independent review requires proof of:
1) A “no-merit” letter by PC[R]A counsel detailing the
nature and extent of his review;
2) The “no-merit” letter by PC[R]A counsel listing each
issue the petitioner wished to have reviewed;
3) The PC[R]A counsel’s “explanation”, in the “no-merit”
letter, of why the petitioner’s issues were meritless;
4) The PC[R]A court conducting its own independent
review of the record; and
- 12 -
J-S33002-16
5) The PC[R]A court agreeing with counsel that the petition
was meritless.[21]
Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citations omitted). This Court has concluded that a claim based on legal
error in PCRA counsel’s withdrawal from representation, “although
necessarily discussing PCRA counsel’s alleged ineffectiveness, is not an
ineffectiveness claim.” Rykard, 55 A.3d at 1184.
As to claims of ineffectiveness, it is well settled that
[c]ounsel is presumed effective, and to rebut that
presumption, the PCRA petitioner must demonstrate that
counsel’s performance was deficient and that such
deficiency prejudiced him. In Pennsylvania, we have
refined the Strickland [v. Washington, 466 U.S. 668
(1984)] performance and prejudice test into a three-part
inquiry. Thus, to prove counsel ineffective, the petitioner
must show that: (1) his underlying claim is of arguable
merit; (2) counsel had no reasonable basis for his action or
inaction; and (3) the petitioner suffered actual prejudice as
a result. See [Commonwealth v.] Pierce[, 527 A.2d
973 (Pa. 1987)]. If a petitioner fails to prove any of these
21
Additionally,
PCRA counsel seeking to withdraw contemporaneously
[must] forward to the petitioner a copy of the application
to withdraw that includes (i) a copy of both the “no-merit”
letter, and (ii) a statement advising the PCRA petitioner
that, in the event the trial court grants the application of
counsel to withdraw, the petitioner has the right to
proceed pro se, or with the assistance of privately retained
counsel.
Widgins, 29 A.3d at 818 (citations omitted). Instantly, there is no dispute
that Appellant was provided with a copy of PCRA counsel’s no-merit brief
and was aware of his right to proceed pro se.
- 13 -
J-S33002-16
prongs, his claim fails. Generally, counsel’s assistance is
deemed constitutionally effective if he chose a particular
course of conduct that had some reasonable basis
designed to effectuate his client’s interests. Where
matters of strategy and tactics are concerned, a finding
that a chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an alternative
not chosen offered a potential for success substantially
greater than the course actually pursued. To demonstrate
prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would
have been different. A reasonable probability is a
probability that is sufficient to undermine confidence in the
outcome of the proceeding.
Charleston, 94 A.3d at 1019 (some citations omitted).
Additionally, the presentation of “layered” claim of ineffectiveness is
required “to preserve and prove a PCRA claim challenging the effectiveness
of counsel other than immediate prior counsel.” Commonwealth v. McGill,
832 A.2d 1014, 1021 (Pa. 2003). When a PCRA action was pending before
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (holding claims of
ineffectiveness of trial counsel should be raised for the first time in the first
PCRA petition), “layering” required that
a petitioner . . . plead in his PCRA petition that his prior
counsel, whose alleged ineffectiveness is at issue, was
ineffective for failing to raise the claim that the counsel
who preceded him was ineffective in taking or omitting
some action. In addition, a petitioner must present
argument, in briefs or other court memoranda, on the
three prongs of the Pierce test as to each relevant layer of
representation.
McGill, 832 A.2d at 1023; see id. at 1021 n.13. Following Grant, it
appears a petitioner must object and present a layered claim to assert that
- 14 -
J-S33002-16
he was entitled to a new trial based on PCRA counsel’s ineffectiveness
regarding a claim of trial counsel’s ineffectiveness. See Rykard, 55 A.3d at
1189-90. Nevertheless, PCRA counsel cannot be ineffective if trial counsel
was not ineffective. See id. at 1190; see also McGill, 832 A.2d at 1023.
All claims must be preserved properly in the PCRA court in the first
instance. See Pa.R.A.P. 302(a); Fletcher, 986 A.2d at 794;
Commonwealth v. Pitts, 981 A.2d 875, 880 (Pa. 2009) (concluding this
Court erred in reviewing sufficiency of “no-merit” letter sua sponte when
defendant raised no such issue). Furthermore, although a court will
construe a pro se filing liberally, a pro se party is responsible for following
the applicable rules of procedure and will be afforded no special treatment.
See Blakeney, 108 A.3d at 766; In re Ullman, 995 A.2d 1207, 1211-12
(Pa. Super. 2010).
Appellant’s first issue focuses on the grant of immunity to Jordan on
the day Appellant’s trial began. Appellant alleges that the Commonwealth
conducted a “trial by ambush” and the trial court should have conducted a
pre-trial hearing on whether to grant Jordan immunity. Appellant also
asserts trial counsel was ineffective for failing to impeach Jordan using the
grant of immunity. Additionally, Appellant refers to trial counsel’s alleged
failure to impeach Jordan using his convictions for crimen falsi. We conclude
Appellant is not entitled to relief.
The Immunity Act provides, in relevant part:
- 15 -
J-S33002-16
§ 5947. Immunity of witnesses
(a) General rule.—Immunity orders shall be available
under this section in all proceedings before:
(1) Courts.
* * *
(b) Request and issuance.—The Attorney General or a
district attorney may request an immunity order from any
judge of a designated court, and that judge shall issue
such an order, when in the judgment of the Attorney
General or district attorney:
(1) the testimony or other information from a
witness may be necessary to the public interest; and
(2) a witness has refused or is likely to refuse to
testify or provide other information on the basis of
his privilege against self-incrimination.
42 Pa.C.S. § 5947(a)(1), (b). Thus, “courts have no power to grant
immunity except on request of the prosecutor.” Commonwealth v. Hall,
867 A.2d 619, 634 (Pa. Super. 2005) (quoting Commonwealth v.
Johnson, 487 A.2d 1320, 1322 (Pa. 1985) (internal quotation marks
omitted)).
The Immunity Act does not require an adversarial proceeding in which
the Commonwealth presents evidence to establish a need for immunization.
See In re Martorano, 346 A.2d 22, 25 (Pa. 1975). Rather, the “hearing”
requirement is met “if the Commonwealth establishes to the satisfaction of
the court, in a manner satisfactory to the court, that immunization is
necessary.” Id. at 25-26 (citation omitted).
- 16 -
J-S33002-16
Instantly, Jordan testified at trial that he and Appellant were “both
involved with drugs” and “kind of had some of the same friends.” N.T. Trial,
3/19/09, at 30. Jordan asserted that Appellant “had given $75.00 to a
friend of his that was supposed to get him some Oxycontin. I was supposed
to get that for him.” Id. at 33. That debt was the alleged motive for the
kidnapping and assault.
Trial counsel did not raise the issue of immunity, but cross-examined
Jordan and elicited his concession that he did not tell police everything about
the alleged transactions leading to the debt. Id. at 70-71. Counsel also
attempted to impeach Jordan based on Jordan’s use of methadone, as well
as cocaine, marijuana, and Valium. Id. at 58. Counsel highlighted Jordan’s
inconsistent statements, including the fact that Jordan initially reported he
was “pistol whipped,” as well as his inability to recall details of the events.
Id. at 62. Additionally, counsel introduced evidence of Jordan’s crimen falsi,
which included convictions for theft by deception, bad checks, and theft by
receiving stolen property. Id. at 79-81.
At the PCRA hearing, trial counsel testified regarding the immunity
issue as follows:
[Commonwealth]. Do you recollect any conversation
between yourself and [Appellant] about this particular
granting of immunity [for the victim, Ian Jordan]?
A. I think I remember a conversation about it. Specifics,
no. I don’t remember the specifics on this. I think what I
told [Appellant] was . . . that Ian is probably pretty
nervous about having to get up and talk about a drug
- 17 -
J-S33002-16
transaction and wants to make sure he is not charged with
it by his own testimony and that it still falls under the
category of me attacking Ian Jordan personally from start
to finish on his credibility.
Q. Did you in fact attack Ian about the drug transactions
on cross?
A. I am certain if I was aware of it I would have, yes.
What I really wanted to attack on Mr. Jordan―and this is
what I felt―that on the day the incident occurred he was
at the hospital coming in and out of consciousness, not
due to injuries he received, but due to the drugs that he
was under at the time. Drugs played a really vital role in
the defense because I believe Ian Jordan was a user, and
therefore his credibility.
N.T. PCRA Hr’g, 4/30/13, at 97-98.
On cross-examination by PCRA counsel, trial counsel testified:
A. [T]here were certain features of this trial that although
[Appellant] thought important, for my strategy purposes in
front of this jury, [Jordan’s] granting of immunity really
was not important. I don’t even know why immunity was
granted quite honestly. If I looked at that motion and
understood why he was even requesting it, it was beyond
me. The credibility of Ian Jordan was already being
attacked by the information that we had. His granting of
immunity I thought would have just confused the jury
even further as to the point we were trying to drive home.
Q. You wouldn’t agree with the notion that perhaps letting
[the jury] know that [Mr. Jordan] had asked for immunity
would help impinge his credibility?
A. No. No, I thought his credibility was shot in a number
of different ways before we even got to that, so no. I’m
not surprised I didn’t ask anything about the immunity. . .
. So no, I don’t believe it would have furthered the case
anyway.
N.T. PCRA Hr’g, 6/4/13, at 72-73.
- 18 -
J-S33002-16
Contrary to Appellant’s contention, a formal hearing is not required to
confer immunity to Jordan. See In re Martorano, 346 A.2d at 25.
Additionally, trial counsel had at least some basis to support his theory that
the issue of immunity for discussing the alleged debt to Appellant for a drug
transaction would have confused the jury given the other impeachment
evidence, i.e., Jordan’s drug use, prior inconsistent statements,
exaggerations, and crimen falsi. Moreover, under the circumstances of this
case, we discern no basis to conclude that the issue of immunity, which
related back to Jordan’s testimony regarding an unrequited drug transaction,
so affected Jordan’s credibility that it would have altered the outcome at
trial. Lastly, Appellant’s suggestion that trial counsel failed to raise Jordan’s
crimen falsi convictions is belied by the record. Accordingly, trial counsel’s
representation did not amount to ineffectiveness, and we discern no error in
the PCRA court’s independent review of this issue. See Charleston, 94
A.3d at 1019; Rykard, 55 A.3d at 1184.
Appellant’s second issue focuses on trial counsel’s failure to accept the
trial court’s offer to give a corrupt source jury instruction. He asserts that
he was entitled to a corrupt source instruction as to co-defendant Shane
Carey, trial counsel had no basis to reject the instruction, and that the
outcome would have been different had the jury been informed that it
should view Carey’s testimony with caution. Additionally, Appellant suggests
trial counsel should have requested the same instruction with respect to the
- 19 -
J-S33002-16
complainant Ian Jordan’s testimony. No relief is due.
[I]t is well established that, in any case in which an
accomplice implicates the defendant, the [judge] should
instruct the jury that the accomplice is a corrupt and
polluted source whose testimony should be considered with
caution. A corrupt-source instruction is warranted where
sufficient evidence is presented as to whether the witness
is an accomplice. An individual is an accomplice if, with
intent to promote or facilitate the commission of the
offense, he solicits, aids, agrees, or attempts to aid
another person in planning or committing the offense.
Commonwealth v. Treiber, 121 A.3d 435, 459 (Pa. 2015) (internal
citations and quotation marks omitted). “The ‘corrupt source’ charge in
particular is designed specifically to address situations where one accomplice
testifies against the other to obtain favorable treatment. It directs the jury
to view the testimony of an accomplice with disfavor and accept it only with
care and caution.” Commonwealth v. Smith, 17 A.3d 873, 906 (Pa.
2011).
Instantly, the trial court offered to instruct the jury that Carey was a
corrupt source, but trial counsel rejected the instruction in favor of a general
instruction on credibility. N.T. Trial, 3/20/09, at 8-10. During closing
argument, trial counsel argued one of the relevant decisions for the jury was
its choice to credit Carey’s or Jordan’s testimony. N.T. Trial Excerpts,
Opening, Closing & Charge, 3/16/09, 3/17/09 & 3/20/09, at 52. Trial
counsel insisted Carey’s testimony was more credible than Jordan’s. Trial
counsel argued Carey’s own testimony established that Jordan voluntarily
entered Carey’s car, Carey was the principal assailant, and Appellant could
- 20 -
J-S33002-16
be guilty of simple assault, but not aggravated assault. Id. at 46-52.
At the PCRA hearing, trial counsel further explained his decision to
refuse the corrupt source instruction.
The corrupt and polluted source, I [did not] want Shane
Carey to be a corrupt and polluted source. I felt there
were certain portions of his testimony that were going to
be helpful to my client that were I think stronger than Ian
Jordan’s testimony, so I didn’t want him to be corrupt and
polluted. Mr. Carey actually gave comments during the
trial and I believe he was a Commonwealth witness if I
remember correctly, but I was still about to elicit certain
testimony that was helpful to the defense. I wanted him
to be as credible as could be for the benefit of the jury. I
didn’t want him to be corrupt and polluted.
N.T. PCRA Hr’g, 4/30/13, at 91.
As to Jordan, Appellant suggests that because Jordan admitted he was
involved in some wrongdoing, he must have been an accomplice in the
crimes. However, there was no evidence that Jordan acted as an accomplice
to his alleged kidnapping and assault or the subsequent interactions at
prison.
The PCRA court denied relief on this issue by finding that trial counsel
stated a reasonable basis for declining a corrupt source instruction with
respect to Carey. We conclude that the court’s findings were supported by
the record and its determination was free of legal error. See Charleston,
94 A.3d at 1018-19. Moreover, we conclude that Appellant has failed to
establish arguable merit to his assertion that he was entitled to a corrupt
source instruction with respect to Jordan. See Treiber, 121 A.3d at 459.
- 21 -
J-S33002-16
Thus, we discern no error in the PCRA court’s review of this issue. See
Rykard, 55 A.3d at 1184.
Appellant, in his third issue, raises six sub-issues that the
Commonwealth engaged in a pattern of misconduct that perpetrated a fraud
against the court, denied him discovery, and tainted the trial proceedings.
For the reasons that follow, we conclude no relief is due.
We address Appellant’s first two sub-issues together. In his first sub-
issue, Appellant alleges fraud by the prosecutor, violations of the rules of
discovery, and improper suppression of evidence. He initially claims the
prosecutor wrongfully denied his request for discovery by deceiving the trial
court. He asserts that he met with the prosecutor and a police detective.
Appellant’s Brief at 44-45. He argues that he was entitled to the
prosecutor’s notes from that meeting. Id. For the first time on appeal, he
contends those notes would reflect his statements asserting his innocence
and indicating that the complainant Ian Jordan offered him drugs to repay a
debt. Id. 45.
In his second sub-issue, Appellant refers to the following exchange
with Officer Eric Hile during direct examination by the Commonwealth:
Q. How were you alerted to Shane Carey?
A. While we were in the process of investigating, our
dispatcher ran a check of our records at our Police
Department for known or associated persons listed in our
computer system that had been associated with
[Appellant]. One of the names that came up was this
Shane Carey from a particular incident.
- 22 -
J-S33002-16
N.T., 3/16/09, at 74.
Our review is governed by the following principles.
Rule 573 requires that the Commonwealth “shall disclose
to the defendant’s attorney all . . . evidence favorable to
the accused that is material either to guilt or to
punishment, and is within the possession or control of the
attorney for the Commonwealth.” Similarly, Brady
provides that “the suppression by the prosecution of
evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt
or to punishment[.]”
Commonwealth v. Ferguson, 866 A.2d 403, 406 (Pa. Super. 2004)
(citations omitted). “The purpose of the discovery rules is to permit the
parties in a criminal matter to be prepared for trial. Trial by ambush is
contrary to the spirit and letter of those rules and cannot be condoned.”
Commonwealth v. Moose, 602 A.2d 1265, 1274 (Pa. 1992).
“[T]here is no Brady violation when the defense has equal access to the
allegedly withheld evidence.” Commonwealth v. Weiss, 81 A.3d 767, 783
(Pa. 2013) (citation omitted). Brady does not create a general right to
inspect or search all of the Commonwealth’s files. See Commonwealth v.
Williams, 86 A.3d 771, 788 (Pa. 2014).
As to Appellant’s contention that he was entitled to the notes from his
meeting with the prosecutor, we initially note that Appellant has fashioned a
new claim from his original assertion that his prior counsel were ineffective
with respect to guilty plea negotiations. Therefore, this issue could be
deemed waived. See Pa.R.A.P. 302(a); Fletcher, 986 A.2d at 794. In any
- 23 -
J-S33002-16
event, it is apparent that although several meetings with the prosecutor
occurred for guilty plea negotiations, Appellant cannot now claim a violation
of Brady as he had equal access to the information he now seeks, namely,
his own exculpatory statements that he made during the negotiations. See
Weiss, 81 A.3d at 783. As to Appellant’s contention that he was entitled to
discovery of a police file in which Carey was listed as an associate, Appellant
has not shown that the file contained any information material to his guilt or
innocence. See Ferguson, 866 A.2d at 406. Appellant, in both sub-issues,
appears to suggest that he has a general right to search all of the
Commonwealth’s files. However, our courts have recognized no such right.
Williams, 86 A.3d at 788. Thus, we discern no arguable merit to
Appellant’s claims that the Commonwealth intentionally defrauded the court
or violated its discovery obligations.
Appellant’s third sub-issue concerns the alleged coaching of witnesses.
By way of background, during the investigation, Appellant’s wife visited the
police with her mother for an interview and she initially gave a statement
that she and Appellant were asleep until 9:30 a.m. N.T. Trial, 3/17/09, at
168. Appellant’s wife eventually gave a second statement, transcribed by
her mother. In that statement, Appellant’s wife indicated that Carey called
Appellant at 7:00 a.m., Appellant left the house shortly thereafter, and
returned at 8:45 a.m. After he returned, Appellant told her “Shane’s Nike
- 24 -
J-S33002-16
print is in the side of Ian’s head.” Id. at 169-70. The Commonwealth called
Appellant’s wife at trial.
As evidence of coaching, Appellant refers to a single exchange during
which the Commonwealth questioned Appellant’s mother-in-law on direct
examination:
Q. Outside the statements did [Appellant’s wife, the
witness’s daughter,] sign the notes of Officer Myers as
well?
A. I didn’t see that. To be honest with you I did not see
her sign them.
Q. Isn’t true that [Appellant’s wife] went there to give the
alibi that they were asleep until about nine-thirty?
[Trial counsel]: I’m going to object, Your Honor. It’s
a leading question.
[Commonwealth]: I’m going to ask that she be found
adverse, Your Honor. She is not answering the
questions correctly. She is the mother-in-law of
the defendant.
THE COURT: Overruled. I do not make that finding,
but I am going to allow you to go ahead and cross.
N.T. Trial, 3/19/09 at 9-10 (emphasis added). The Commonwealth
proceeded to ask leading questions of the witness. However, the witness’s
answers suggested an inability to recall, although she did identify Appellant’s
wife’s handwriting and signature on a police report indicating that
Appellant’s wife initially stated she and Appellant were sleeping until 9:30
a.m.
- 25 -
J-S33002-16
The prosecutor’s request to ask the witness leading questions was,
perhaps, poorly phrased. Nevertheless, we discern no basis to conclude
Appellant has supported his underlying claim that the Commonwealth
coached Appellant’s mother-in-law or its other witnesses.
Appellant, in his fourth, fifth, and sixth sub-issues, asserts the
prosecutor exceeded the permissible scope of opening and closing
statements. He avers that the prosecutor cast him as a “bad person” in its
opening statement. He also argues that the prosecutor’s closing argument
that he was “loan shark” was unsupported by the trial evidence and unfairly
prejudiced him. Lastly, he contends the prosecutor’s reference to her own
medical conditions was an attempt to garner sympathy from the jury.
The Pennsylvania Supreme Court summarized the principles governing
Appellant’s assertions of prosecutorial misconduct as follows:
[A] claim of prosecutorial misconduct either sounds in a
specific constitutional provision that the prosecutor
allegedly violated, or, more commonly, implicates
Fourteenth Amendment due process. The touchstone of
due process is the fairness of the trial, rather than the
culpability of the prosecutor; consequently, it is the trial
court’s ruling on the defendant’s objection to the
prosecutor’s allegedly improper statement that is
reviewable on appeal, and not the prosecutor’s underlying
misconduct. Nevertheless, the prosecutor’s statements
must be scrutinized in order to address the propriety of the
trial court’s ruling. It is well-established that “[c]omments
by a prosecutor constitute reversible error only where their
unavoidable effect is to prejudice the jury, forming in [the
jurors’] minds a fixed bias and hostility toward the
defendant such that they could not weigh the evidence
objectively and render a fair verdict.” A prosecutor’s
remarks in opening statements must be fair deductions
- 26 -
J-S33002-16
from the evidence the Commonwealth intends to offer,
which the prosecutor believes, in good faith, will be
available and admissible at trial. In closing arguments, a
prosecutor may comment on the evidence and any
reasonable inferences arising from the evidence.
Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citations
omitted).
Instantly, Appellant does not identify any particular portion of the
opening statement as improper. He instead asserts that the Commonwealth
argued he was a bad person. We have reviewed the opening statement by
the Commonwealth and find no basis to conclude that it was unduly
prejudicial. See id.
With respect to the Commonwealth’s closing argument, Appellant
refers to the following two passages, the first describing Appellant as a “loan
shark,” the second making reference to the prosecutor’s own medical
condition:
[Appellant’s wife] was covering for him. He wouldn’t have
done anything like that. And the only thing that was in
question was the money for the tattoo and it wasn’t drug
related.
But you know what; it doesn’t really matter what the
money was for here today, whether it was for drugs or a
tattoo. Apparently, a lot of people owe him money. He’s
like a loan shark in this area, I guess. I don’t know. Is it
just for tattoos. I don’t know. We got text messages on
[Appellant’s wife’s] phone that people are owing money
and she’s picking up money from this Kali person, in the
one exhibit, Kali, I guess.
* * *
- 27 -
J-S33002-16
And as far as injuries and what the victim sustained, I
guess when I was thinking about the victim and the
injuries sustained and I asked Mr. Carey did you know that
he had any issues with his neck or any problems like that,
you know, before you beat him? No. You just hit a
person and the hell with the result, right? And I think
about that and this is the reason why. I don’t know if
you’ve ever heard of Lattice degeneration. I guess boxers
get it and it’s in their eyes. And lattice degeneration is I
guess caused by strikes to that area, and what happens is
after a while, whatever, the lattice—I don’t know what is—
degenerates and you have issues then. If you get struck
you can lose your vision because something to do with
your retina popping out, I don’t know, something like that.
Your eye detaches or something like that. The reason I’m
telling you all this is because I have that. I haven’t been a
boxer but I’ve had a couple of kids, and I was very, very
seriously sick and at home for months on bed rest and
vomiting constantly. I swear to God 80 times a day. So
they suspect that somehow while I’m heaving that I’m
causing this problem with my eye area, and I have what is
called lattice degeneration. At least that is what my eye
doctor told me. So if somebody strikes me, just a regular
strike, I might lose my vision. A good strike to the head
there and the eye area, it’s possible that I could lose my
vision forever, gone. And so when people are—like Shane
Carey and the defendant are striking on this victim, they
don’t know what condition he’s in. They give it no
thought, beating in the car, beating in the cornfield,
another beating in the cornfield and then they leave, and
then they leave him there. So Shane’s testimony is that in
the car he gets the beating. He’s crying and sobbing, wah-
wah, you know, don’t feel sorry for the victim there. The
victim really didn’t want to fess up to the crime but I guess
he did. There’s blood in the car. Shane Carey says there’s
blood in the car. Yeah, he was bleeding in the car, uh huh,
yeah. When they got there he gets out or whatever. I
don’t know what story is what, either he runs, either they
take him. It doesn’t matter. He was in their control. He
was kept in their control. Since they are not going to get
the money, they are going to give him a pounding.
N.T. Trial Excerpts at 96, 100-01.
- 28 -
J-S33002-16
The prosecutor’s remarks about debts owed to Appellant had some
support in the testimony at trial. See N.T. Trial, 3/17/09, at 182 (indicating
that Appellant had at least twenty people who owed him money including
Jordan). The prosecutor’s rhetorical questions push the boundaries of
appropriate argument as they could imply uncharged acts regarding the
source of those debts. However, under the circumstances of this case and
the appellate arguments raised by Appellant, we discern no basis to conclude
that Appellant suffered undue prejudice. Similarly, the prosecutor’s
comments regarding her own medical condition had a legitimate purpose
with respect to the charge of recklessly endangering another person.22 Her
extended references, while certainly departing from the confines of the trial
evidence, were not so prejudicial as to curry favor with the jury or inflame
the passions of the jury. Accordingly, we conclude Appellant has not
demonstrated actual prejudice warranting a new trial. See Arrington, 86
A.3d at 853.
In sum, we have reviewed Appellant’s third issue raising claims of
prosecutorial misconduct and discern no reversible error in the PCRA court’s
decisions to permit PCRA counsel to withdraw and deny relief. See
Rykard, 55 A.3d at 1184. Thus, no relief is due based on these claims.
22
Section 2705 of the Crimes Code defines recklessly endangering another
person as follows: “A person commits a misdemeanor of the second degree
if he recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705.
- 29 -
J-S33002-16
Appellant’s fourth issue focuses on the trial court’s examination of
witnesses and remarks on the evidence during its charge to the jury. He
contends that the trial court’s conduct evinced bias against him. In support,
he notes that the trial court emphasized portions of Carey’s videotaped
statement to police in the following exchange with Carey:
[Trial court]. Now the other evidence that I think is
significant, you did tell us that—my notes say, you did say
before he [Jordan] got out of the car, “You ain’t going
nowhere unless you go with us.”
A. I said something to the effect of that. Yes, sir.
Q. Well, again, I wrote it down. I have a quote beside
which I do not do unless I get it exactly the way it was
said. Did you not just say on the stand, at some point
today, “You ain’t going nowhere unless you go with us?”
A. Yes, sir.
N.T. Trial, 3/17/09, at 142-43.
Moreover, Appellant refers to the following remarks in the trial court’s
charge:
It is significant at this point that before Mr. Jordan got out
of the car that Mr. Carey did say to Jordan, “You ain’t
going nowhere unless you go with us.” Now, that would—
and this is the core point, I think for your decision in this
case at this point is, was the movement from the car to
the other car and then the transport, was it against
Jordan’s will or was it consensual? Obviously, if you are
not convinced beyond a reasonable doubt that it wasn’t
consensual, then it would be your duty to acquit. If you
are convinced beyond a reasonable doubt that Jordan did
not consent, then of course that would be the kidnapping
charge.
- 30 -
J-S33002-16
N.T. Trial Excerpts at 123. We are constrained to conclude that no relief is
due.
This Court has recognized that “[i]t is always the right and sometimes
the duty of the trial judge to interrogate witnesses. However, questioning
from the bench should not show bias or feeling or be unduly protracted.”
Commonwealth v. Ables, 590 A.2d 334, 341 (Pa. Super. 1991) (citations
omitted). “A new trial is required only when the trial court’s questioning is
prejudicial, that is when it is of such a nature or substance or delivered in
such a manner that it may reasonably be said to have deprived the
defendant of a fair and impartial trial.” Id. (citation omitted).
Additionally,
[t]he trial judge may comment on the evidence as long as
the jury is left free to act on its own view of the evidence.
It is well settled that the trial court’s instructions to the
jury must be read as a whole, and that error cannot be
predicated on isolated excerpts from the charge.
Commonwealth v. Bailey, 469 A.2d 604, 614 (Pa. Super. 1983) (citations
omitted).
Instantly, although the trial court emphasized its view of the
importance of an isolated portion of Carey’s videotaped statement to police,
the remarks of the trial court did not misstate the evidence. See N.T. Trial,
3/17/09, at 72. Moreover, trial counsel cross-examined Carey in response
to the court’s questioning to emphasize that Carey made the statement only
after Jordan offered to get money for Appellant. Id. at 148. The court
- 31 -
J-S33002-16
ultimately instructed that it was the exclusive function of jury to reconcile
the testimony and decide where the truth lies, that its recollection of the
testimony—and not the court’s—controlled, and that the court’s comments
on the parties’ theories were “gratuitous observations.” N.T. Trial Excerpts
at 127, 160. As we are constrained to presume that juries follow the court’s
instructions, we conclude that no relief is due. See Rykard, 55 A.3d at
1184; Ables, 590 A.2d at 341; Bailey, 469 A.2d at 614.
Appellant, in his fifth issue, argues that Juror 8, a newspaper editor
and foreperson of the jury, should have been stricken because it was likely
that he obtained outside information about the case. He alleges two
newspapers at which Juror 8 worked published stories about the crime.
Appellant’s Brief at 25. He notes that although the trial court asked whether
Juror 8 could be fair and impartial, no further questions were asked
regarding the information he obtained. Id. Appellant further suggests that
the failure to strike Juror 8 constitutes “structural error” due to the juror’s
alleged bias. Id. No relief is due.
In Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008), the
Pennsylvania Supreme Court considered a claim that trial counsel was
ineffective for failing to investigate or establish alleged jury taint based on
the possibility that jurors were aware of his prior record. Id. at 17-18. The
petitioner in that case further alleged subsequent appellate counsel was
ineffective for diligently investigating his claim of taint. Id. at 18. The
- 32 -
J-S33002-16
Tedford Court, in relevant part, analyzed Appellant’s claim under the
Strickland standard requiring a demonstration of actual prejudice.
[The petitioner] has also failed to demonstrate that he
suffered prejudice. “The purpose of voir dire is to ensure
the empanelling of a fair and impartial jury capable of
following the instructions of the trial court.” Even
exposure to outside information does not ineluctably mean
that a jury is unfair and partial. . . . [The petitioner] has
failed to rebut the evidence that the jury was fair and
impartial, and he has failed to demonstrate that he was
prejudiced by alleged juror knowledge of his prior criminal
record.
Id. at 20 (citations omitted).
Instantly, the trial court, when conducting voir dire, acknowledged
there was “some publicity in the media” about the case and asked the pool
of jurors whether (1) they had knowledge of the case and (2) they could
“decide the case only on what goes on in the courtroom.” N.T. Jury
Selection, 3/9/09, at 11-12. Numerous prospective jurors acknowledged
they had read about the case in the newspaper. Several other prospective
jurors were examined at sidebar about having outside knowledge of the case
and stricken for cause. Juror 8,23 in turn, acknowledged that he had
knowledge of the case, and the following exchange occurred:
THE COURT: Holy cow. We are getting a lot of media
today.
JUROR [8]: Yes, (unintelligible).
23
Juror 8 was initially designated as Juror 102 in the pool selection process.
- 33 -
J-S33002-16
THE COURT: Okay, I hope so. I mean, you are the
editor, right?
JUROR [8]: One of them.
THE COURT: Obviously you have read about it in the
paper. You don’t necessarily believe everything you read
in that newspaper, do you?
JUROR [8]: No, I do not.
THE COURT: I couldn’t resist that, I’m sorry. In any
event, are you prepared to tell us that you can give the
defendant a fair trial independent of what you have read in
the paper?
JUROR [8]: Yes, Your Honor.
THE COURT: Does counsel want to inquire?
[Trial counsel]: No.
Id. at 30. Trial counsel did not object for cause and did not separately
exercise a peremptory strike after the pool was narrowed to thirty
prospective jurors.
At the PCRA hearing, trial counsel explained that he did not seek to
strike Juror 8 based on his belief that it was necessary to avoid conservative
jurors and seat jurors who could be receptive to Appellant’s alternative
lifestyle, including Appellant’s ownership of a tattoo parlor. N.T. PCRA Hr’g,
6/4/13, at 53, 56. Counsel also made reference to Appellant’s ownership of
pit bulls.
Appellant maintains that the seating of Juror 8 constitutes “structural
error,” which cannot be deemed harmless and which carries a presumption
- 34 -
J-S33002-16
of prejudice. Cf. Commonwealth v. King, 57 A.3d 607, 614-15 (Pa. 2012)
(discussing claims of structural error and the presumption of prejudice under
United States v. Cronic, 466 U.S. 648 (1984)). But see Commonwealth
v. Padilla, 80 A.3d 1238, 1280 (Pa. 2013) (Castille, C.J., concurring)
(discussing “proliferation of claims that seek to expand the definitions of
structural error, for example, so as to avoid a defense burden to prove
Strickland actual prejudice.” (footnote omitted)). More specifically,
Appellant appears to imply that his claim of structural error permits him to
avoid establishing either merit or actual prejudice, i.e., that Juror 8 either
possessed extraneous information about the case, harbored some bias or
prejudice against him, or improperly influenced the jury’s deliberations.
However, this is not an appropriate analysis. See Tedford, 960 A.2d at 20.
In any event, the PCRA court’s finding that trial counsel had a reasonable
basis for accepting Juror 8 is supported by the record and the law. See
Charleston, 94 A.3d at 1018-19. Accordingly, this issue warrants no relief.
See Rykard, 55 A.3d at 1184.
Appellant’s sixth issue involves a challenge to the warrants issued to
search his residence. On appeal, he contends that the warrant, which was
originally issued to search his place of business, was verbally amended in a
manner that violated the rules governing the use of “advanced technology.”
Appellant’s Brief at 42. He specifically asserts that there was no evidence
that there was a visual link between the applicant seeking the amendment
- 35 -
J-S33002-16
and the magisterial district judge permitting the amendment. Id. at 40, 42.
He faults trial counsel for failing to seek suppression on this basis, asserts
trial counsel’s explanation that he was focused on the kidnapping and
aggravated assault charges was unreasonable, and claims he was prejudiced
by the admission of the evidence recovered from his residence. Id. at 42-
43. He further argues that the PCRA court’s conclusion that there was
probable cause to search his residence notwithstanding a mistake in the
address of the place to be searched “misconstrues” his argument. Id. at 42.
Appellant believes the original warrant was issued for his place of
business, a search was executed there, and a telephonic amendment was
made to search his residence. In support, he relies on the trial testimony of
Lieutenant Kevin Lewis that he executed a search warrant for Carey’s
residence while other officers planned to execute a search warrant for
Appellant’s place of business. N.T., 3/19/09, at 110-11. However, Detective
Mark Baughman testified at trial that he applied for the search warrant for
Appellant’s residence, mistakenly recited the address for Appellant’s place of
business, and contacted the magisterial district judge by telephone to amend
the address. Id. at 136. Detective Baughman testified that he obtained a
second warrant to search for drug evidence after seeing paraphernalia and
possible narcotics in plain view. There is no indication that Appellant’s place
of business was searched except for his PCRA hearing testimony.
It is well settled that
- 36 -
J-S33002-16
the Rules of Criminal Procedure include a requirement of
particularity. Rule 206 states: “Each application for a
search warrant shall be supported by written affidavit(s)
signed and sworn to or affirmed before an issuing
authority, which affidavit(s) shall: . . . (3) [state the]
name or describe with particularity the person or place to
be searched.” Pa.R.Crim.P. 206. It is notable, however,
that the comment to Rule 205, “Contents of Search
Warrant”, states:
Paragraphs (2) and (3) are intended to proscribe
general or exploratory searches by requiring that
searches be directed only towards the specific items,
persons, or places set forth in the warrant. Such
warrants should, however, be read in a common
sense fashion and should not be invalidated by
hypertechnical interpretations.
Pa.R.Crim.P. 205, cmt.
Commonwealth v. Washington, 858 A.2d 1255, 1258 (Pa. Super. 2004).
Instantly, Appellant focuses on the manner in which the “amendment”
was made, i.e., by telephone and without evidence that the communication
was made face-to-face. However, he fails to address both PCRA counsel’s
and the PCRA court’s conclusions that the affidavit of probable cause in
support of the original warrant contained adequate specificity to establish
that the search was to be conducted at Appellant’s residence. Moreover, he
has failed to include the warrants or the affidavits of probable cause in the
record transmitted to this Court. Therefore, absent any indication that the
original warrant was fatally defective by failing to meet the particularity
requirements of Pa.R.Crim.P. 206, the alleged defects in the amendment
process are irrelevant. The original warrant could have supported the search
- 37 -
J-S33002-16
of his residence notwithstanding the technical defect in the address. See id.
Thus, Appellant has not established arguable merit to his suppression issue
or error in the PCRA court’s independent review of the issue. See Rykard,
55 A.3d at 1184.
Appellant, for his next issue, asserts claims of error in the playing of
his videotaped statements to police, which contained a reference to his prior
record as well as his invocation of his right to counsel. Appellant
consistently maintained he was entitled to a mistrial based on the playing of
the tape as a whole and the failure to redact the two portions referring to his
prior record and his invocation of the right to counsel. Although we find
error in PCRA counsel’s and the PCRA court’s treatment of this issue, we are
constrained to conclude that no relief is due.
Our review reveals the following. At trial, a DVD of Appellant’s
statement to police was played to the jury. During the playing of the video
recording, trial counsel requested a sidebar, at which time he requested a
mistrial. N.T. Trial, 3/19/09, at 170. The portion prompting the request was
an exchange between Appellant and Lieutenant Richard Goldsmith, when
Appellant asked why an officer had his gun drawn when taking him into
custody. Lieutenant Goldsmith replied that it was a felony arrest and added
“Donny, I know your record.” Id. 170-71. The court denied the motion for
mistrial and trial counsel refused a cautionary instruction because he did not
want to highlight the reference. Id. at 171-72. Subsequently, at the end of
- 38 -
J-S33002-16
the video recording, Appellant apparently exercised his right to counsel.
Trial counsel asserted he wanted the jury to see his client on the videotape,
the tactics of the police, and “how quickly the interview was ended the
minute he asked for it.” Id. at 176-78. The trial court gave a cautionary
instruction not to draw an adverse inference from Appellant’s invocation of
his right to silence.
This Court, in Appellant’s direct appeal, addressed a portion of this
issue as follows:
[Appellant] next contends that the trial court erred in
failing to grant his Motion for a mistrial, when alleged
incriminating statements were admitted at trial, after being
ruled inadmissible. Specifically, [Appellant] objects to the
playing of a portion of a DVD depicting an interview with
[Appellant] during the testimony of Lieutenant Richard
Goldsmith. Prior to the playing of the DVD to the jury, the
prosecutor indicated to the court that the parties had
agreed that Lieutenant Goldsmith would stop the DVD at
certain points to ensure that the jury did not hear any
testimony about [Appellant’s] prior record. N.T., 3/19/09,
at 161.
During the playing of the DVD, [trial counsel] requested
a sidebar, and then requested a mistrial because the part
of the DVD which mentioned that [Appellant] had a prior
record was played to the jury. Id. at 170. Specifically,
counsel for Smith objected on the following basis:
[Trial counsel]: The interview is why did you pull a
gun on me when you came into arrest me. [sic]
Donny, you will be arrested for a felony, and then he
goes on further to say, plus, Donny, I know your
record.
Id. at 171. The trial court denied the request for a mistrial
on the basis that the term “record” was innocuous. Id. at
171-72. The trial court offered to give a cautionary
- 39 -
J-S33002-16
instruction, but counsel for Smith declined the instruction
on the basis that it would bring more attention to the
remark. Id. at 172.
A motion for a mistrial is within the discretion of the
trial court. [A] mistrial [upon motion by one of the
parties] is required only when an incident is of such
a nature that its unavoidable effect is to deprive the
appellant of a fair and impartial trial. It is within the
trial court’s discretion to determine whether a
defendant was prejudiced by the incident that is the
basis of a motion for a mistrial. On appeal, our
standard of review is whether the trial court abused
that discretion.
An abuse of discretion is more than an error of
judgment. On appeal, the trial court will not be found
to have abused its discretion unless the record
discloses that the judgment exercised by the trial
court was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will.
...
[M]ere passing reference to prior criminal activity is
insufficient to establish improper prejudice by itself.
The inquiry into whether prejudice has accrued is
necessarily a fact specific one. If evidence of prior
criminal activity is inadvertently presented to the
jury, the trial court may cure the improper prejudice
with an appropriate cautionary instruction to the
jury. However, the instruction must be clear and
specific, and must instruct the jury to disregard the
improper evidence.
Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.
Super. 2008).
“Our law is unequivocal that the responsibility rests
upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the
materials necessary for the reviewing court to perform its
duty.” Commonwealth v. Bongiorno, 905 A.2d 998,
1000 (Pa. Super. 2006). Our review of the docket entries
- 40 -
J-S33002-16
shows that the exhibits admitted at trial, including the DVD
at issue here, were not made part of the certified record.
Without the ability to review the DVD, our review of
this issue is significantly hampered, as without the
DVD, we cannot appropriately consider whether
Smith was prejudiced by the playing of the remark
or whether, despite the Commonwealth’s failure to
adhere to the agreement, the remark constituted a
mere passing reference. We conclude that Smith has
waived this issue for failing to include the DVD in the
certified record. See id.
Commonwealth v. Smith, 901 WDA 2009, at 7-9 (Pa. Super. Mar. 14,
2011) (unpublished memorandum) (emphasis added).
PCRA counsel, when seeking withdrawal, characterized Appellant’s
issue as follows:
This rather convoluted question seeks to relitigate an issue
taken before the Superior Court on direct appeal. . . . This
matter was taken up on direct appeal and denied. . . . [I]t
is undersigned counsel[’s] position that this entire issue is
waived as being litigated on direct appeal or being so
addressed. Petitioner simply tries to recycle the issue and
take a second bit by adding his proposed issues of invalid
Miranda and post arrest silence.
No-Merit Brief, 6/5/14, at 13-14. The PCRA court similarly concluded that
the issue was previously litigated asserting this Court “dismissed this claim
noting that after we refused [trial counsel’s] motion for mistrial, trial counsel
refused the offer of a cautionary instruction . . . .” PCRA Ct. Op., 8/22/14,
at 21.
- 41 -
J-S33002-16
Neither PCRA counsel nor the PCRA court correctly identified a basis
for finding this issue meritless.24 However, we are constrained to note that
Appellant, in his objection to PCRA counsel’s no-merit brief, did not object or
raise a separate claim of ineffective assistance of PCRA counsel based on
this issue. Moreover, Appellant’s Rule 1925(b) statement did not fairly
indicate a claim based on this issue. Lastly, in light of our foregoing
discussion, we cannot conclude that PCRA counsel’s ineffectiveness with
respect to this issue was so fundamental as to deprive Appellant of
meaningful representation. Accordingly, we conclude that Appellant has
failed to preserve and establish error based on this issue. Thus, we decline
to disturb the PCRA court’s independent review of the merits of Appellant’s
issues.
Having addressed Appellant initial claims that the PCRA court erred by
permitting PCRA counsel to withdraw, we next address Appellant’s claims of
PCRA counsel’s ineffective assistance. We note that Appellant’s objection to
PCRA counsel’s no-merit brief preserved a single claim of layered
ineffectiveness as to PCRA counsel’s treatment of his issue involving the lack
of corrupt source instructions, which he reiterated in this appeal. However,
as discussed above, we have concluded that (1) trial counsel stated a
24
The PCRA court, in its Pa.R.A.P. 1925(a) statement, concluded that
Appellant’s issue was waived for failure to include it in his initial or
supplemental PCRA petition. PCRA Ct. Op., 6/3/15, at 20.
- 42 -
J-S33002-16
reasonable basis for declining the instruction with respect to Carey and (2)
Appellant was not entitled to the instruction regarding Jordan. To the extent
Appellant preserved a claim of PCRA counsel’s ineffectiveness with respect to
the Commonwealth’s opening and closing statement, we have found that
claim to be meritless. Because Appellant cannot prove trial counsel’s
ineffectiveness with respect to these issues, his layered claim involving PCRA
counsel’s ineffectiveness also fails. See Rykard 55 A.3d at 1190; see also
McGill, 832 A.2d at 1023. Lastly, Appellant’s remaining objections to PCRA
counsel’s Turner/Finley letter—trial counsel’s stipulations to evidence, a
conflict of interest based on trial counsel’s election as District Attorney, and
the illegal imposition of a mandatory “second strike” minimum sentence—
have been abandoned on appeal.25
In sum, we conclude that Appellant is not entitled to remand for the
appointment of new PCRA counsel or a new trial, and we affirm the order
denying his first PCRA petition.
Order affirmed.
25
As to Appellant’s challenge to the mandatory minimum sentence in this
case, we note that his conviction became final before Alleyne v. United
States, 133 S. Ct. 2151 (2013), was decided and that it involved facts
based on a prior conviction. Accordingly, we decline to raise arguments or
decide on this matter sua sponte. But see Commonwealth v.
Washington, 2016 WL 3909088 at *8 (Pa. July 19, 2016) (holding that
“Alleyne does not apply retroactively to cases pending on collateral
review”).
- 43 -
J-S33002-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2016
- 44 -
Com. v. Smith, D.
Combined Opinion