J-S57028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JALIL PRATT
Appellant No. 2291 EDA 2016
Appeal from the PCRA Order dated June 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011453-2007
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 21, 2017
Appellant Jalil Pratt appeals from the order denying, after an
evidentiary hearing, his first Post Conviction Relief Act (“PCRA”)1 petition.
We affirm.
We state the facts as set forth by a prior panel of this Court, which
resolved Appellant’s direct appeal:
On December 23, 2006 at approximately 11:00 p.m., co-
Defendant Maurice Smith told his girlfriend, Melissa Thompson,
via cell phone to call George’s Pizza in Philadelphia, PA and place
an order for delivery. Melissa Thompson told George’s Pizza to
deliver the food to a specific address in Philadelphia, PA and then
called Smith back via Pratt’s cell phone to tell him that she had
done so. Pratt and Smith then waited for the delivery man to
arrive.
At 11:44 p.m., William Heron (“Heron”) heard a knock on his
door where Melissa Thompson requested the delivery be made.
Heron looked out the window to see a pizza delivery man, later
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
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identified as Michael Orlando, standing outside the door. Heron
answered the door to tell Michael Orlando, hereinafter referred
to as Orlando, he must have the wrong address because he
didn’t order pizza. Heron then saw two black males approach
from behind Orlando. Pratt pointed a gun at Orlando while
Smith demanded that Orlando ‘move it, move it.’ Heron
immediately shut the door and dialed 911 for emergency police
services. While on the phone with the police, Heron heard
banging and crying at the front door, but was too afraid to open
the door. The police arrived at his door within minutes,
discovered Orlando shot in the abdomen, and all suspects had
fled the scene. Orlando was taken to Frankford Hospital,
Torresdale division, where he was pronounced dead at 12:30
a.m. on December 24, 2006 due to a single gunshot wound to
the abdomen.
Pratt, Smith, and Melissa Thompson (“Thompson”) were
subsequently arrested and charged with numerous crimes
related to the events set forth above.
Commonwealth v. Pratt, No. 672 EDA 2010, at 1-2 (Pa. Super., Dec. 2,
2010), appeal denied, 19 A.3d 1050 (Pa. 2011).
Prior to trial, Thompson pleaded guilty to conspiracy in exchange for
testifying at Appellant’s trial. At trial, Appellant “put forth an alibi defense,
calling two witnesses who testified that [he] was in their house at the time
the murder was supposed to have occurred.” Pratt, No. 672 EDA 2010, at
3. In support, Thompson testified that she did not meet Appellant until the
day after the robbery. N.T. Trial, 6/17/09, at 170-71. During closing
arguments, Appellant’s trial counsel argued that Thompson’s testimony, in
conjunction with other testimony, raised a reasonable doubt as to whether
Appellant was involved. N.T. Trial, 6/24/09, at 117. The jury convicted
Appellant of second-degree murder, conspiracy, and burglary, and the court
sentenced him to life imprisonment without parole for murder and a
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concurrent sentence of ten to twenty years’ imprisonment for the remaining
convictions. This Court affirmed and our Supreme Court denied Appellant’s
petition for allowance of appeal.
Appellant, acting pro se, timely filed his first PCRA petition. The court
appointed counsel, who filed an amended PCRA petition. Attached to the
petition was trial counsel’s signed affidavit averring that he forgot to
investigate and present character witnesses. The PCRA court held an
evidentiary hearing at which Appellant called witnesses who testified that
had they been called at trial, they would have testified to Appellant’s
reputation in the community as being a non-violent person. The
Commonwealth cross-examined them with Appellant’s prior criminal record.
At the hearing, Appellant’s trial counsel testified as follows:
At the time of his signature [on the affidavit, Appellant’s trial
counsel] believed the averments were accurate. (N.T.
06/15/2016 at 36). However, upon further recollection, [trial
counsel] testified the statements were not accurate because he
was aware of [Appellant’s] prior record and more importantly, he
recalled speaking with the prosecutor about potential cross
examination and impeachment of the character witnesses. (N.T.
06/15/2016 at 36-39).
PCRA Ct. Op., 11/4/16, at 6 (footnote omitted). Trial counsel also testified
that he did not request a corrupt and polluted source instruction for
Thompson because, in his view, her testimony exculpated Appellant and he
did not want to undermine her testimony before the jury. N.T. PCRA Hr’g,
6/15/16, at 40-41. Following the hearing, the trial court denied Appellant’s
petition and Appellant timely appealed.
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Appellant raises the following issues:
Whether trial counsel was ineffective for failing to investigate
and to procure character witnesses to testify that the Appellant
enjoyed a reputation for being a peaceful and non-violent
person.
Whether trial counsel was ineffective for failing to request a
corrupt source cautionary and jury instruction for Melissa
Thompson who was an accomplice in the death of Michael
Orlando.
Appellant’s Brief at 6.
“Preliminarily, we recognize that in reviewing the propriety of an order
granting or denying PCRA relief, this Court is limited to ascertaining whether
the evidence supports the determination of the PCRA court and whether the
ruling is free of legal error.” Commonwealth v. Andrews, 158 A.3d 1260,
1262-63 (Pa. Super. 2017).
We summarize Appellant’s arguments for both of his issues. He
contends trial counsel had no reasonable basis not to call character
witnesses. In Appellant’s view, his criminal past was non-violent and would
have only supported his contention that he lacked the capacity to commit
murder and robbery. Appellant’s Brief at 14-15. Appellant also contends
that trial counsel had no reasonable basis to not request a corrupt source
instruction, given Thompson’s admitted involvement. Id. at 17.
In order to obtain relief under the PCRA premised upon a claim
that counsel was ineffective, a petitioner must establish beyond
a preponderance of the evidence that counsel’s ineffectiveness
“so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.A. § 9543(a)(2)(ii). This requires the petitioner [to]
demonstrate that: (1) the underlying claim is of arguable merit;
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(2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) petitioner was prejudiced by counsel’s
act or omission. It is presumed that counsel is effective, and
. . . the appellant [has] the burden of proving otherwise.
Commonwealth v. Payne, 794 A.2d 902, 905-06 (Pa. Super.) (citation
omitted), appeal denied, 808 A.2d 571 (Pa. 2002). Counsel has a
reasonable strategic basis for not calling character witnesses if counsel
believes the witnesses could be cross-examined regarding the defendant’s
prior criminal record. Commonwealth v. Van Horn, 797 A.2d 983, 988
(Pa. Super. 2002). It is similarly a reasonable strategic basis to not request
a corrupt source instruction if doing so would be inconsistent with the
proffered defense. Commonwealth v. Johnson, 437 A.2d 1175, 1177 (Pa.
1981).
After careful review of the parties’ briefs, the record, and the decision
of the Honorable Leon W. Tucker, Jr., we affirm on the basis of the PCRA
court’s decision. See PCRA Ct. Op. at 5-8 (holding trial counsel adequately
explained why his affidavit was inaccurate, and trial counsel had a
reasonable strategic basis for not calling character witnesses and requesting
a corrupt source instruction). Because we perceive no error, we affirm the
PCRA court’s order denying relief. The parties are instructed to attach the
PCRA court’s decision to any future pleadings that reference that decision.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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Circulated 10/27/2017 03:15 PM
COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS
FIRSTJUDICIALDISTRICT
v. FILE-D
NOV ·O 4 2016
JALILPRATT' . CriminalApp~al~Unit CP-51-CR-0011453-2007
APPELLANT FirstJudicia\D1stnctof PA
OPINION
2291 EDA 2016
LEON W. TUCKER, J. DATE: November 3, 2016
This matter comes before the Superior Court on appeal from the denial of a Post Conviction
Relief Act' ("PCRA") Petition filed by Jalil Pratt (hereinafter referred to as "Petitioner") in
which Petitioner sought post-conviction relief based upon claims of ineffective assistance of
counsel. Petitioner was brought to trial following the robbery and murder of a pizza
deliveryman, who was called to a residence by the girlfriend of one of Petitioner's co-defendants.
I. ProceduralHistory
Following a jury trial before this court, the Petitioner was found guilty of second degree
murder,2 criminal conspiracy;' and robbery4 ori June 29, 2009. On September 17, 2009, this court
sentenced Petitioner to life imprisonment on the murder conviction, ten to twenty years on the
conspiracy charge, and ten to twenty years on the robbery charge. The Petitioner filed his first
PCRA petition on January 5, 2010, requesting reinstantment of his appellate rights nunc pro tune.
This court granted his petition and reinstated appellate rights on February 18, 2010. The Petitioner
then appealed his judgement of sentence, which was affirmed by the Superior Court of
CP-51-CR-0011453-2~07 Comm. v, Pratt. Jalil
Opinion
1
2
42 Pa. Cons.
18 Pa. Cons.
3 18 Pa. Cons.
Stat. §§ 9541-9546.
Stat. § 2502(b).
Stat. § 903(a)(l).
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7521679391
4 18 Pa. Cons. Stat. § 3701(a)(l)(i).
1
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Pennsylvania on December 2, 2010.5 On March 25, 2011, the Pennsylvania Supreme Court denied
the petition for allowance of appeal filed by Petitioner.
The instant PCRA petition was timely filed on June 21, 2011.6 Petitioner's PCRA counsel
filed an amended PCRA petition on April 17, 2014, and a supplemental amended petition on
August 4, 2015.7 In his amended petition, Petitioner primarily complained his trial counsel was
ineffective for failing to procure character witnesses, and failing to request a corrupt source jury
instruction regarding one of the Commonwealth's witnesses, Melissa Thompson. On December 2,
2015, the court granted an evidentiary hearing on these two claims. Following the June 15, 2016
evidentiary hearing, the court dismissed the PCRA petition.
The Petitioner timely filed a Notice of Appeal on July 14, 2016. This court issued an order
directing Petitioner to file a concise statement of matters complained of on appeal, pursuant to
Pa.R.A.P. 1925(b) on July 26, 2016. On August 5, 2016, PCRA counsel timely filed a statement
of matters complained of on appeal on behalf of the Petitioner (hereafter "1925(b) Statement"). In
the 1925(b) Statement, the Petitioner reiteratedhis original claims that he was entitled to collateral
relief because:
(1) Trial counsel was ineffective for failing to investigate and to procure character
witnesses to testify that the Petitioner enjoyed a reputation for being a peaceful and
non-violent person.
s Commonwealth v. Jalil Pratt, No. 672 EDA 2010 (Pa. Super. Dec. 2, 2010).
6 Petitioner's judgment of sentence became final atthe conclusion of direct review - when his
petition for allowance of appeal was denied by the Pennsylvania Supreme Court and the time to
petition to the Supreme Court of the United States for writ of certiorari lapsed. See 42 Pa. Cons.
Stat. § 9545(b)(3). As his PCRA petition was filed within one year of the date when his
judgment became final, the Petitioner timely filed the instant PCRA petition. See id. §
9545(b)(1 ).
7 Petitioner's original PCRA counsel was removed on August 13, 2013 and new counsel, Gary
Server, Esquire, was appointed on August 15, 2013.
2
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(2) Trial counsel was ineffective for failing to request a corrupt source cautionary and jury
instruction for Melissa Thompson who was an accomplice in the death of Michael
Orlando.
(1925(b) Statement). The court will now address these alleged errors raised by Petitioner in his
1925(b) Statement.
II. Legal Analysis
Under 42 Pa. Cons. Stat. §§ 9541-9546 (2016), commonly known as the Post Conviction
Relief Act, a petitioner is required to plead and prove by a preponderance of the evidence that he
was convicted or sentenced as a result of one of the grounds enumerated in subsection (a)(2) to
obtain post-conviction relief.8 42 Pa. Cons. Stat. § 9543(a)(2). The grounds for post-conviction
relief include a conviction or sentence that results from "ineffective assistance of counsel, which
in the circumstances of the particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place." Id § 9543 (a)(2)(ii).
When pursuing relief based upon ineffective assistance of counsel, the petitioner bears the
burden of proving ineffectiveness and overcoming the presumption that counsel was effective.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). Specifically, he must prove (1) the legal
issue underlying the claim of ineffectiveness has arguable merit, (2) counsel lacked an objective
reasonable basis for his or her acts or omissions, and (3) the petitioner suffered prejudice as a result
of counsel's act or omission. Commonwealth v. Pierce, 645 A.2d 189, 194-95 (Pa. 1994). If
counsel "chose a particular course that had some reasonable basis designed to effectuate his client's
interest," then the petitioner would be unable to meet the second prong of the ineffective assistance
a The Petitioner must also prove the claimed errors were not previously litigated or waived and
"the failure to litigate the issue prior to or during trial, ... or on direct appeal could not have
been the result of any rational, strategic or tactical decision by counsel." 42 Pa. Cons. Stat. §
9543(a)(4).
3
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test and the entire claim would fail. Koehler, 36 A.3d at 132. Overall defense strategy and trial
tactics are considered unreasonable only if "an alternative not chosen offered a potential for
success substantially greater than the course actually pursued." Id.
A. Trial counsel was not ineffective for failing to call character witnesses because counsel
had an objective reasonable basis, namely Petitioner's prior juvenile adjudications.
On an ineffective assistance claim directly conditioned on counsel's failure to call witnesses,
the petitioner must prove the witness existed, trial counsel knew or should have known of the
witness's existence, the witness was available and prepared to cooperate by testifying on behalf of
the petitioner, and the failure to call the witness resulted in such prejudice that, in essence, the
petitioner was denied a fair trial. Commonwealth v. Michaud, 70 A.3d 862 (Pa. Super. 2013);
Commonwealth v. Van Horn, 797 A.2d 983, 987 (Pa. Super. 2002). Even if a petitioner was able
to prove the witness was available and prepared to testify, the failure to call said witness would
not constitute ineffective assistance if counsel had a reasonable basis for not calling the witness.
Van Horn, 797 A.2d at 988. Pennsylvania courts have found such a reasonable basis when trial
counsel declined to call character witnesses because counsel did not want to expose those character
witnesses to impeachment on petitioner's prior convictions. See e.g. Commonwealth v. Morales,
701 A.2d 516 (Pa. 1997); Commonwealth v. Van Horn, 797 A.2d 983, 988 (Pa. Super. 2002). In
Van Horn, the Superior Court concluded that it was a reasonable trial strategy for trial counsel to
omit character testimony because of the petitioner's prior felony convictions. 797 A.2d at 988.
Accordingly, the Van Horn court held petitioner's ineffective assistance of counsel claim failed
because there was a reasonable trial strategy. Id.
In the instant matter, this court found Petitioner's trial counsel had a reasonable basis for
omitting character witness testimony -Petitioner's prior juvenile adjudications for possession of a
controlled substance with intent to deliver and simple assault. At the evidentiary hearing, the court
4
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heard testimony from three witnesses including two family friends and the Petitioner's
grandmother.9 All three witnesses testified that they were available and prepared to testify at trial
that Petitioner had a reputation as a peaceful and nonviolent person. (N.T. 06/15/2016 at 14, 19,
27). All three witnesses also testified that trial counsel did not ask them about their availability to
testify at trial. (N.T. 06/15/2016 at 12, 19, 25, 26). Nevertheless, this testimony is insufficient to
prove ineffectiveness as Petitioner's trial counsel had a reasonable basis for not calling these
witnesses.
Trial counsel, Stephen Patrizio, Esquire, testified at the evidentiary hearing that he discussed
calling character witnesses with Petitioner's family prior to trial. (N.T. 06/15/2016 at 32, 33).
However, Mr. Patrizio was concerned because the prosecutor explicitly stated she would bring up
Petitioner's prior criminal record if defense presented character witness testimony. (N.T.
06/15/2016 at 32). Ultimately, a decision was made to omit character evidence as to not expose
those character witnesses to cross examination about the Petitioner's prior adjudications for
possession of a controlled substance with intent to deliver and simple assault. (N.T. 06/15/2016 at
33).
This testimony directly contradicted a March 16, 2010 affidavit signed by Mr. Patrizio and
attached to Petitioner's amended PCRA petition. The affidavit declared that Mr. Patrizio forgot to
investigate and present character evidence at trial and had no strategic reason for doing so. (N.T.
06/15/2016 at 36). At the evidentiary hearing, Mr. Patrizio testified that he did not author the
affidavit and did not know who authored the affidavit but assumed it was the lawyer representing
9The Commonwealth and defense stipulated that seven additional family friends and relatives
would have testified that they were available and prepared to testify at trial that Petitioner
enjoyed a reputation as a peaceful and nonviolent person. The parties further stipulated that the
Commonwealth would have cross-examined these witnesses about Petitioner's prior juvenile
adjudications. (Notes of Testimony (hereafter "N.T.") 06/15/2016 at 54-56).
5
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Petitioner at the time. (N.T. 06/15/2016 at 36). At the time of his signature, Mr. Patrizio believed
the averments were accurate. (N.T. 06/15/2016 at 36). However, upon further recollection, Mr.
Patrizio testified the statements were not accurate because he was aware of the Petitioner's prior
record and more importantly, he recalled speaking with the prosecutor about potential cross
examination and impeachment of the character witnesses." (N.T. 06/15/2016 at 36-39).
After hearing testimony from trial counsel about his decision not to call character witnesses,
the court determined that trial counsel had a reasonable basis for his actions. As such, Petitioner's
ineffective assistance of counsel claim regarding these witnesses failed.
B. Trial counsel was not ineffective for failing to request a corrupt source jury
instruction as counsel had a reasonable basis not to cast doubt on testimony by
Melissa Thompson, a Commonwealth witness.
Petitioner also claims that trial counsel was ineffective for failing to request a corrupt source
cautionary and jury instruction 11 regarding testimony by Melissa Thompson, a witness for the
Commonwealth. As this court determined that trial counsel had a reasonable basis - he believed
Ms. Thompson's testimony was beneficial to his client - Petitioner's ineffective assistance claim
on this ground fails.
If the PCRA court finds trial counsel employed a trial strategy that was designed to reasonably
effectuate his client's interests, then petitioner's ineffective assistance claim fails because there
Of note, the character witnesses who testified at the evidentiary hearing were cross examined
10
about Petitioner's prior adjudications following their testimony that Petitioner enjoyed a
reputation as a peaceful and nonviolent person. (N.T. 06/15/2016 at 15, 22-23, 28).
11 The standard "Accomplice Testimony" jury instruction reads in part: "When a Commonwealth
witness is an accomplice, his or her testimony had to be judged by special precautionary rules.
Experience shows that an accomplice, when caught, may often try to place the blame falsely on
someone else. [He or she may testify falsely in the hope of obtaining favorable treatment, or for
some corrupt or wicked motive.] On the other hand, an accomplice may be a perfectly truthful
witness .... " Pennsylvania Suggested Standard Criminal Jury Instruction 4.01(1). The
instruction also warns, "you should examine the testimony of an accomplice closely and accept it
only with care and caution." Pennsylvania Suggested Standard Criminal Jury Instruction 4.01(3).
6
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was an objective reasonable basis. Koehler, 36 A.3d at 132. At Petitioner's trial, the jury heard
testimony by Melissa Thompson, an ex-girlfriend of one of Petitioner's co-defendants. (N.T.
06/17/2009 at 75-144, 146-179). Ms. Thompson pled guilty to conspiracy and entered an
agreement with the Commonwealth that she would testify at Petitioner's trial and the
Commonwealth would recommend a sentence of ten years of probation for the conspiracy
conviction. (N.T. 06/17/2009 at 104-06).
At the evidentiary hearing, Mr. Patrizio testified that he did not request the corrupt or polluted
source instruction because he did not believe Ms. Thompson's testimony was damaging to
Petitioner and did not want to cast doubt on her testimony. (N.T. 06/15/2016 at 40-41). This
testimony is supported by statements made by Mr. Patrizio during his closing argument at trial:
"[W]hen you go through Melissa Thompson's statement again, her testimony exculpates, raises a
reasonable doubt, as to [Petitioner's] involvement in this case, in this this robbery, that particular
evening." (N.T. 06/24/2009 at 117) (emphasis added). Although a corrupt and polluted source
charge to the jury is warranted when there is sufficient evidence at trial to present a jury question
as to whether a witness for the Commonwealth is an accomplice, it would be contradictory for Mr.
Patrizio to have requested that instruction in this instance. Commonwealth v. Busanet, 54 A.3d 35,
69-70 (Pa. 2012). During direct examination and cross-examination, Ms. Thompson testified that
she did not meet Petitioner until the day after the robbery. (N.T. 06/17/2009 at 87-88, 133, 170-
71). Per Mr. Patrizio's closing argument at trial and testimony at the evidentiary hearing, his
strategy was to frame Ms. Thompson's testimony as exculpatory because it raised reasonable doubt
as to Petitioner's involvement in the crime; Ms. Thompson was familiar with a number of the co-
defendants prior to the robbery but did not meet Petitioner until after the robbery. This court
determined that trial counsel had a reasonable basis to not request a corrupt source cautionary and
7
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cast doubt on the veracity of Ms. Thompson's testimony. As such, the court held Petitioner's
ineffective assistance of counsel claim failed as he was unable to prove all three prongs required.
III. Conclusion
For the above reasons, Petitioner's claims fail. After an evidentiary hearing and an exhaustive
review of the record, this court determined trial counsel had a reasonable basis for not calling
character witnesses and not requesting a corrupt source jury instruction. As counsel acted with a
reasonable basis, a finding of ineffective assistance of counsel was not warranted. This court's
ruling should stand.
KER,J./ AL
8
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COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTH v. JALIL PRATT CP-51-CR-0011453-2007
1925(a) Opinion
PROOF OF SERVICE ;
I hereby certify that I am this day serving the foregoing Court Order upon the person(s)
and in the manner indicated below, which service satisfies the requirements of PA.R.CRJM.P.114:
AttorneyforAppellant: Gary Server, Esquire
52103 Delaire Landing
Philadelphia, PA 19114
Type of Service: , ( ) Personal ( X ) First Class Mail ( ) Certified
District Attorney: Hugh J. Bums, Jr., Esquire
Appeals Unit, District Attorney's Office
Widener Building
3 South Penn Square
Philadelphia, PA 19107
Type of Service: ( ) Personal ( X) First Class Mail ( ) Other, please specify
Dated: \ \ J 11 /\ VJ
9