J-S20034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEONARD L. ECHOLS :
:
Appellant : No. 2644 EDA 2015
Appeal from the PCRA Order July 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0907531-2005
BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED MAY 16, 2017
Leonard L. Echols appeals from the order entered July 17, 2015, in the
Court of Common Pleas of Philadelphia County that dismissed, without a
hearing, his first petition filed pursuant to the Pennsylvania Post Conviction
Relief Act (PCRA),1 seeking relief from the judgment of sentence of life
imprisonment. Echols raises four claims, specifically, (1) appellate counsel
ineffectively argued Echols’ direct appeal suppression claim, (2) trial counsel
was ineffective because he did not impeach the testimony of Nicole
Thompson with materials he had readily at hand, (3) trial counsel was
ineffective because he failed to object to the court’s charge which did not
inform the jury that the Commonwealth bore the burden of proving the
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1
42 Pa.C.S. §§ 9541–9546.
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voluntariness of Echols’ statement to Detective Pirrone by a preponderance
of the evidence, and (4) trial counsel was ineffective because he did not
object to the court’s charge regarding prior bad acts. See Echols’ Brief at 7–
8. Based upon the following, we affirm.
This Court previously summarized the underlying facts and procedural
history of this case in Echols’ direct appeal:
Sometime between 1:00 p.m. and 2:00 p.m. on March
23, 2005, Nicole Thompson (hereinafter “Nicole”), Bobby
McKenzie (hereinafter “Bobby”), and George Paramour
(hereinafter “George”) were in George’s living room
located at 5621 Sprague Street in Philadelphia,
Pennsylvania; Bobby was speaking with George and
Nicole was asleep in an arm chair. George got up to
answer a knock at the front door and a man, later
identified as Irving Perkins (hereinafter “Irving”) followed
him into the living room. Irving got into an argument with
George, drew a gun, pointed it at George, and ordered
him to give up his money. George responded that he was
“not going to give … [Irving] nothing.” Irving repeated his
demand and added that he would shoot George if he
didn’t comply. Bobby advised George to just “give him
the money” and Irving repeated the demand for money
yet a third time.
George refused the demand and immediately thereafter,
Bobby rushed Irving, threw him against the wall, and
knocked the gun from his hand. At that point, [Echols]
entered the room and grabbed Bobby by the neck from
behind as George and Irving fought for control of the gun.
Bobby flipped [Echols] off of him and ran toward the
kitchen. Once in the kitchen, Bobby heard two gunshots.
Awakened by the argument, Nicole saw Irving point a gun
at George, [Echols] enter the living room from the
hallway leading to the front door, and the subsequent
fight over the gun. She got up and ducked into the
adjoining dining room before she heard a gunshot. Nicole
turned, looked back into the living room, and saw Irving,
with the gun in his hand, and [Echols] standing over
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George’s body on the living room floor. As George lay on
the floor she heard [Echols] tell Irving that he should
have “just come in and … shot him [George].” [Echols]
and Irving went through George’s pockets and took
money, some loose bags of heroin, and an empty pill
bottle that George used to store heroin. Thereafter,
[Echols] and Irving went to the front door but were
unable to open it. Nicole told them that she would let
them out; she went to the door, opened it, and closed it
after them. Nicole ran upstairs and told … Lisa Thompson
(hereinafter “Lisa”) that George had been shot. Lisa
called 911 and the police arrived shortly thereafter. Nicole
was interviewed by the police and identified [Echols] as a
participant in the shooting. Nicole testified that she saw
[Echols] in George’s house a week before the shooting.
On that occasion, [Echols] threatened George with a large
knife and demanded that he be allowed to buy a bag of
heroin on credit. A second man identified as Ray-Ray told
[Echols] to calm down and offered to buy him a bag of
heroin. Nicole retrieved a bag of heroin and gave it to
[Echols] and he left.
The police responded to a report of a shooting at 5621
Sprague Street on March 23, 2005. George was
transported to Albert Einstein Medical Center where he
was pronounced dead. The medical examiner testified
that George died as a result of the gunshot wound to the
chest and that the manner of death was homicide.
Stippling around the entrance wound indicated that the
muzzle of the gun was pressed against George’s chest
when it was fired. The bullet passed through George’s
liver and damaged the inferior venacava and the
abdominal aorta blood vessels.
Trial Court Opinion, 12/14/07, at 2-4 (citations omitted);
Certified Record (C.R.) at 9.
On June 8, 2005, [Echols] was arrested and charged with
criminal homicide, robbery, criminal conspiracy, and possessing
an instrument of crime. [Echols] was subsequently transported
to the Homicide Unit of the Philadelphia Police Department for
questioning and was not handcuffed at this time. Prior to
commencing the interview, Detective George Pirrone verbally
administered Miranda warnings to [Echols]. N.T. Jury Trial,
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8/3/07, at 37-40. Detective Pirrone also testified that during the
course of this interview, [Echols] acknowledged that he was at
the victim’s residence buying drugs the day of the shooting and
“took a pill bottle from [the victim] after he was shot.” Id. at 40-
42. On July 25, 2007, [Echols] filed a motion to suppress his
statement alleging, inter alia, that it was obtained in the absence
of a knowing, intelligent, and voluntary waiver of his Miranda
rights. A hearing was held on the motion on July 31, 2007.
Following the hearing, the trial court denied the motion. [Echols]
proceeded to a jury trial on August 6, 2007 and was ultimately
found guilty of second degree murder, robbery, and criminal
conspiracy. As noted, [Echols] was sentenced to an aggregate
term of life imprisonment on September 14, 2007. [Echols] did
not file any post-trial motions. On September 19, 2007, [Echols]
filed a timely notice of appeal, and the trial court ordered him to
file a Concise Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b). [Echols] failed to file a concise
statement and the trial court issued an opinion on December 14,
2007 finding all of [Echols’] claims waived. See Trial Court
Opinion, 12/14/07; C.R. at 9.
Thereafter, on March 5, 2008, [Echols] filed a “Petition for
Remand for Submission of Statement Pursuant to Pa.App.R. [sic]
1925(b) Nunc Pro Tunc.” See C.R. at 14. On April 15, 2008, this
Court remanded the matter to the trial court and directed
[Echols] and the trial court to comply with Pa.R.A.P. 1925. On
May 13, 2008, [Echols] filed a 1925(b) statement. Thereafter, on
June 27, 2008, the trial court filed a supplemental opinion.
Commonwealth v. Echols, 974 A.2d 1180 [2337 EDA 2007] (Pa. Super.
2009) (unpublished memorandum).2 On March 31, 2009, this Court
affirmed the judgment of sentence. Id. On November 30, 2009, the
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2
In his direct appeal, Echols raised five issues: (1) the verdict was against
the weight of the evidence, (2) the trial court erred in denying the motion to
suppress, (3) the trial court erred in admitting a prior bad act of Echols, (4)
the trial court erred in denying the motion for mistrial, and (5) the trial court
erred in denying trial counsel’s request for a “Failure to Call a Potential
Witness” charge. See Commonwealth v. Echols, 974 A.2d 1180 [2337
EDA 2007, at 5] (Pa. Super. 2009) (unpublished memorandum).
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Pennsylvania Supreme Court denied allowance of appeal. Commonwealth
v. Echols, 985 A.2d 218 (Pa. 2009).
On March 22, 2010, Echols filed a pro se PCRA petition. Counsel was
appointed and filed an amended petition. Present PCRA counsel entered his
appearance on June 5, 2012, and filed an amended petition on February 7,
2013, and a supplemental amended petition on June 25, 2014.3 On July 17,
2015, the PCRA court, after issuing Rule 907 notice, dismissed Echols’
petition without a hearing. This appeal followed.4, 5
At the outset we state the principles that guide our review:
Under the applicable standard of review, we determine whether
the ruling of the PCRA court is supported by the record and is
free of legal error. Commonwealth v. Spotz, 616 Pa. 164, 47
A.3d 63, 75 (Pa. 2012) (citing Commonwealth v. Hutchinson,
611 Pa. 280, 25 A.3d 277, 284-85 (Pa. 2011)). We apply a de
novo standard of review to the PCRA courts legal conclusions.
Id.
****
The PCRA court has discretion to dismiss a petition without a
hearing when the court is satisfied “‘that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings.’” Commonwealth v.
Roney, 622 Pa. 1, 79 A.3d 595, 604 (Pa. 2013) (quoting
Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (Pa.
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3
Echols, in his brief, states “Extensions to file this Petition were granted by
the Court because of counsel’s illness.” Echols’ Brief at 5.
4
The PCRA court did not order Echols to file a Pa.R.A.P. 1925(b) statement.
5
The trial court record was received in this Court on May 25, 2016.
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2011), quoting Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a
PCRA court’s decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of fact
which, if resolved in his favor, would have entitled him to relief,
or that the court otherwise abused its discretion in denying a
hearing.” Roney, 79 A.3d at 604-05.
Commonwealth v. Blakeney, 108 A.3d 739, 748-750 (Pa. 2014), cert.
denied, 135 S. Ct. 2817 (2015).
To obtain relief on a claim of ineffective assistance of counsel, a
PCRA petitioner must satisfy the performance and prejudice test
set forth in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This Court has applied the
Strickland test by looking to the following three elements that
must be satisfied: (1) the underlying claim has arguable merit;
(2) counsel had no reasonable basis for his actions or failure to
act; and (3) the PCRA petitioner suffered prejudice as a result of
counsel’s error, with prejudice measured by whether there is a
reasonable probability that the result of the proceeding would
have been different. Commonwealth v. Pierce, 515 Pa. 153,
527 A.2d 973, 975 (Pa. 1987). Counsel is presumed to have
rendered effective assistance of counsel. Commonwealth v.
Montalvo, 604 Pa. 386, 986 A.2d 84, 102 (Pa. 2009). Further,
we are not required to analyze the elements of an
ineffectiveness claim in any particular order; if a claim fails
under any requisite prong, the Court may address that prong
first. Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693,
701 (Pa. 1998). Additionally, counsel cannot be deemed
ineffective for failing to raise a meritless claim. Commonwealth
v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa. 2006).
Commonwealth v. Staton, 120 A.3d 277, 283-84 (Pa. 2015), cert. denied,
136 S. Ct. 807 (2016).
To establish Strickland/Pierce prejudice in the appellate
representation context, the petitioner must show that there is a
reasonable probability that the outcome of the direct appeal
proceeding would have been different but for counsel’s deficient
performance.
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Blakeney, supra, 108 A.3d at 750. See also Commonwealth v.
Koehler, 36 A.3d 121, 142 (Pa. 2012) (“To succeed on a stand-alone claim
of appellate counsel’s ineffectiveness, a PCRA petitioner must demonstrate
that appellate counsel was ineffective in the manner by which he litigated
the claim on appeal.”).
Echols first argues that “direct appellate counsel ineffectively argued
[Echols’ direct] appeal claim that [Echols] was questioned without a
knowing, intelligent and explicit waiver of his Miranda rights because the
nodding of his head was far too vague to support such waiver and was not
an explicit waiver thereof.” Echols’ Brief at 11. Echols claims that appellate
counsel ineffectively challenged the trial court’s denial of his suppression
motion by only arguing that Echols’ statement was coerced by police, and
“never clearly presented the issue of whether a waiver could be found from
the nodding of [Echols’] head.” Echols’ Brief at 8.
Echols contends that appellate counsel should have cited the “on
point” decisions of Commonwealth v. Hughes, 639 A.2d 763 (Pa. 1994)
and Commonwealth v. Bussey, 404 A.2d 1309 (Pa. 1979) (plurality
opinion). Echols’ Brief at 17. Echols relies on Bussey’s holding that
“pursuant to our supervisory powers and interpretation of the Pennsylvania
Constitution, we hold an explicit waiver is a mandatory requirement.”
Echols’ Brief at 17, citing Bussey, 404 A.2d at 1314. Echols further argues
that in Hughes, the Pennsylvania Supreme Court “applied Bussey’s explicit
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waiver requirement without acknowledging it was a plurality opinion, and
thereby gave it precedential status.” Echols’ Brief at 17. Based on these
decisions, Echols maintains appellate counsel was ineffective for failing to
present any argument that there was no explicit waiver of Miranda rights by
“an ambiguous nod of the head.” Echols’ Brief at 20. We disagree.
In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), cert. denied,
540 U.S. 1115 (2004), the Pennsylvania Supreme Court noted its prior
decisions in Bussey and Hughes. The Bomar Court pointed out Bussey
was not a majority opinion and, therefore, did not constitute binding
precedent. Bomar, 826 A.2d at 834 n.13. The Bomar Court held:
An explicit statement of waiver after being advised of [one’s]
Miranda rights ... is not necessary to a finding of waiver under
the Fifth Amendment. The pertinent question is whether the
defendant in fact knowingly and voluntarily waived the rights
delineated in the Miranda case. Waiver can be clearly inferred
from the actions and words of the person interrogated.
Id. at 843 (citations and quotations marks omitted).
In this case, the trial court, in denying the suppression motion, found
that Detective Pirrone “read Miranda warnings to [Echols]. In response to
the warnings, [Echols] slid back into his chair and nodded his head several
times.” Trial Court Opinion, 7/11/2008, at 6. The trial court stated, “The
absence of an explicit oral waiver does not render the waiver unknowing or
involuntary; the waiver can be inferred from the defendant’s actions.” Id.,
citing Bomar, 826 A.2d at 843.
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On appeal, this Court agreed with the trial court “that ‘[Appellant] was
given Miranda warnings, he understood the warnings … [and] voluntarily
waived his rights prior to making an oral statement to police.” Echols,
supra, 974 A.2d 1180 [2337 EDA 2007, at 9]. In this regard, this Court
stated, “The record further reveals Detective Pirrone verbally administered
Miranda warnings to [Echols], and [Echols] acknowledged that he
understood his rights by nodding repeatedly.” Id., 974 A.2d 1180 [2337
EDA 2007, at 10].
Based on our review of the record and case law, we conclude that in
light of the holding in Bomar, appellate counsel would not have succeeded
on appeal with the argument Echols currently proffers. As such, Echols has
failed to satisfy his burden of establishing a reasonable probability that the
outcome of his direct appeal would have been different. See Blakeney,
supra, 108 A.3d at 750. Accordingly, no relief is due on Echols’ first claim,
regarding appellate counsel’s ineffectiveness.
In his second issue, Echols claims trial counsel was ineffective because
he did not impeach the testimony of Nicole Thompson with materials he had
readily at hand. Echols argues trial counsel did not cross-examine Ms.
Thompson about her crimen falsi conviction for receiving stolen goods, her
multiple aliases, and her probationary status, which “could easily have
caused the jury to disbelieve her, or at least find a reasonable doubt in her
testimony.” Echols’ Brief at 32. Echols maintains that “[b]ecause Thompson
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was the only witness to link him to the crime it was imperative that his
attorney impeach her to the limit of the law.” Id. at 32.
The PCRA judge, the Honorable Shelley Robins New, in rejecting
Echols’ claim, opined:
Next, [Echols] alleges trial counsel’s ineffective assistance for
failing to impeach Nicole Thompson with her prior conviction for
Receiving Stolen Property, her multiple aliases, dates of birth
and social security numbers and her probationary status at the
times of the murder and trial. As noted below, even if the
witness was so impeached, the outcome would not have
changed.
From the prosecutor’s direct examination and the cross
examination, the jury was aware that the witness was a heroin
addict, had used heroin prior to the killing and had fallen into a
deep sleep as a result. Indeed, she was asleep when the robbery
began. The jury also was aware that she used her daughter’s
name, Tarin Thompson[,] in an attempt to prevent the police
from
discovering an outstanding arrest warrant. The jury also was
aware that although she had seen [Echols] a few times after the
killing, she did not contact the police because of the outstanding
warrant.
From the cross examination, the jury also knew that even at the
time of trial the witness was still a heroin addict; that she used
drugs on the day of trial; that she intended to use drugs after
she left the witness stand; that she used drugs the night before
she gave a statement to police; that she was undergoing
withdrawal symptoms (“nodding off” and feeling “dope sick”)
when she identified [Echols’] photograph and spoke to police;
and that she previously had been in jail. Accordingly, even if this
additional impeachment evidence was introduced, the outcome
of the trial would not have changed.
PCRA Court Opinion, 5/24/2016, at 6.
Based on our review, we agree with Judge New’s analysis that
concludes that, given the extent of trial counsel’s credibility attack of
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Thompson, Echols failed to show he was prejudiced by trial counsel’s cross
examination that did not include additional impeachment information. See
Commonwealth v. Small, 980 A.2d 549, 565-566 (Pa. 2009) (finding
“Small was not prejudiced by counsel not cross-examining [eyewitness]
about crimen falsi as that information would have just reiterated a significant
credibility attack that already occurred; Small’s counsel was highly effective
in being able to show the jury all the holes in [eyewitness’s] credibility”).
Accordingly, we reject Echols’ second ineffectiveness claim.
Echols next contends trial counsel was ineffective because he failed to
object to the court’s charge that did not inform the jury that the
Commonwealth bore the burden of proving the voluntariness of Echols’
statement to Detective Pirrone by a preponderance of the evidence. This
very same argument was previously rejected by this Court in
Commonwealth v. Ort, 581 A.2d 230 (Pa. Super. 1990), as follows:
[The trial court’s] instruction comports with the proposed
Pennsylvania Standard Jury Instructions, sections 3.04B and
3.05. Appellant has cited no authority to support his position
that the jury must be specifically instructed that the
Commonwealth has the burden of proving the voluntariness of
the confession by the preponderance of the evidence. In addition
to the instructions quoted above relating specifically to the
voluntariness of the confession, the jury in the present case was
instructed that the Commonwealth had to prove that the crime
had been committed by proof beyond a reasonable doubt. Had
the jury mistakenly applied this standard to the determination of
voluntariness, the error would have redounded to appellant’s
benefit. We find that the jury was amply instructed on the
voluntariness of the confession, and there was no error in the
instructions given to them. Consequently, counsel was not
ineffective for failing to object to the instruction.
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Id. at 234-235.
As in Ort, Echols cites no legal authority that requires a court to
instruct the jury that it must disregard a defendant’s statement unless it
finds the statement is voluntary by a preponderance of the evidence. 6 In
this case, the trial court charged the jury regarding the voluntariness of
Echols’ oral statement to police pursuant to Pennsylvania Suggested
Standard Jury Instructions (Pa. S.S.J.I.) (Crim) 3.01, 3.04C and 3.04D. See
N.T., 8/6/2007, at 144-147. The trial court also instructed the jury that the
Commonwealth had the burden of proving that Echols was guilty beyond a
reasonable doubt. See N.T., 8/6/2007, at 128-130. Applying Ort, no relief
is due on this claim of trial counsel ineffectiveness.
Nor is there merit in the final claim of Echols that trial counsel was
ineffective because he did not object to the court’s charge concerning prior
bad acts.
The specific portion of the jury charge that Echols relies upon in
making this ineffectiveness claim is reproduced in Echols’ brief, as follows:
Ladies and gentlemen, I also gave you an instruction that I’m
going to repeat for you again. You’ve heard testimony that the
defendant has used drugs and had an altercation with George
Paramour within approximately one week before his death, and
that during this altercation the defendant is alleged to have
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6
Although there is a Suggested Standard Jury Instruction to this effect, see
Pa.S.S.J.I. 3.04A, the instructions are not binding. See Commonwealth v.
Simpson, 66 A.3d 253, 274 n.24 (Pa. 2013).
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threatened Mr. Paramour with a knife and demanded drugs from
him.
Ladies and gentlemen, the defendant is not on trial here for any
of these offenses. This evidence is before you for a limited
purpose and you may only consider this evidence for this limited
purpose, and that purpose is to complete the story, that is, to
provide you with background information about the relationship
and interaction between the defendant and George Paramour
shortly before George Paramour was killed.
Echols’ Brief at 40, quoting N.T., 8/6/2007, at 142–143. The trial court
continued:
This information is before you for a limited purpose and this
limited purpose only. This evidence may not be considered by
you in any way other than the purpose I’ve just stated. You
must not regard this evidence as showing that the defendant is a
bad person of bad character or criminal tendencies from which
you might be inclined to infer guilt in this case.
N.T., 8/6/2007, at 143.
Echols argues that the trial court’s charge “attached no burden of
proof to these prior bad acts – and treated them as givens.” Echols’ Brief at
40. Echols maintains trial counsel was ineffective “because he did not object
to the court’s charge that allowed the jury to use testimony that [Echols]
quarreled with George Paramour approximately one week before his death
and also threatened him with a knife and demanded drugs from him without
requiring the jury to first find these facts to be true beyond a reasonable
doubt.” Echols’ Brief at 39. We are not persuaded by Echols’ argument.
Evidence of a defendant’s prior bad acts is generally inadmissible, and
where such evidence is admitted, a defendant is entitled to a jury instruction
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that the evidence is admissible only for a limited purpose. Commonwealth
v. Hutchinson, 811 A.2d 556, 561 (Pa 2002), citing Commonwealth v.
Billa, 555 A.2d 835, 842 (Pa. 1989). Here, the trial court’s limiting
instruction tracked the language of Pa.S.S.J.I. (Crim) 3.08. Therefore, trial
counsel was not ineffective for failing to object to the instruction. See
Commonwealth v. Trivigno, 750 A.2d 243, 252–253 (Pa. 2000) (counsel
could not be deemed ineffective in failing to object to standard jury
instruction). Moreover, as Judge New ably explained:
Contrary to [Echols’] claim, the charge does not treat testimony
as “as givens.” The jury was told there was testimony about
this evidence; that [Echols] was not on trial for those offenses,
that there was a limited purpose for which the evidence was
admissible; that in order to convict [Echols] the jury must be
convinced beyond a reasonable doubt that [Echols] or an
accomplice committed the charged crimes; and that they could
not convict because of these past events. Moreover, in its
charge, the trial court also instructed the jury that it was the
sole judges of the facts and of the credibility of the witnesses
and that it was free to believe all, part or none of each witness’s
testimony. See N.T. 8/6/07, 125, 126, 130. As noted above, the
jury had ample impeachment evidence concerning this witness.
Accordingly, contrary to [Echols’] claim, the charge did not treat
this evidence “as given.” In addition we find no legal support for
[Echols’] claim that the charge should also have instructed as to
a burden of proof for this prior bad evidence. Indeed we are at a
loss to even understand the claim as the trial court properly
instructed the jury about the elements of the charged crimes;
about the limited use of the evidence of a prior bad act; about
how to evaluate the credibility of all witnesses including Ms.
Thompson; that the jury could not convict because of this
evidence; and that in order to convict the jury must be
convinced beyond a reasonable that [Echols] or an accomplice
committed the crime. Accordingly, this claim … is baseless.
PCRA Court Opinion, 5/24/2016, at 7–8 (emphasis in original).
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Therefore, for the reasons set forth above, we conclude no relief is due
on Echols’ final ineffectiveness claim.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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