J-A09003-15



                               2015 PA Super 162

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

ROBERT BARNETT,

                          Appellant                  No. 1209 EDA 2009


         Appeal from the Judgment of Sentence December 2, 2002
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0200061-2002


BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

OPINION BY BOWES, J.:                                  FILED JULY 29, 2015

     Robert Barnett appeals nunc pro tunc from the judgment of sentence

of life imprisonment after a jury found him guilty of first-degree murder,

robbery, burglary, conspiracy, and carrying a firearm without a license.

In addition to being sentenced to life imprisonment, the Court sentenced

Appellant to five to ten years for criminal conspiracy and three and one-half

to seven years on the firearms count. This case returns to this Court after

our Supreme Court remanded the matter to the trial court following its

decision in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013).              Upon

review, we affirm.

     The trial court delineated the following relevant facts.

          On the afternoon of September 8, 2001, 84 year old Harry
     Renner was working in the upstairs office of his restaurant
J-A09003-15



      located at 4120 Main Street in Manayunk neighborhood of
      Philadelphia. As Mr. Renner sat working at his desk, [A]ppellant
      and his son entered the office, threw a blanket over Mr. Renner’s
      head and ordered him at gunpoint to open the office’s safe. Mr.
      Renner complied and [A]ppellant and his son took the thousands
      of dollars of cash proceeds from the previous night’s business
      that was in the safe. Appellant then shot the elderly victim in
      the head, killing him.

              Prior to the crime, [A]ppellant had asked his friend Craig
      Walker to participate as the getaway driver, but Walker refused.
      When Walker saw the story of the robbery and murder on the
      evening news, he immediately recognized it as the crime
      [A]ppellant had invited him to join him in committing. Then, on
      September 10, 2001, both [A]ppellant and his son drove new
      cars to Walker’s home where [A]ppellant bragged about robbery.
      Walker said that [A]ppellant glared at his son when the son
      scolded [A]ppellant that he didn’t have to shoot the victim. Mr.
      Walker saw [A]ppellant a few more times in the area during the
      next few days, carrying a lot of cash and handing out money to a
      crowd of people. Appellant also bragged about the crime to his
      girlfriend, Gail Alvin.    Gail Alvin later told police that she
      accompanied [A]ppellant and his son to a car dealership when
      they purchased the new vehicles. When she asked where they
      had gotten the money from for the cars, [A]ppellant bragged
      about having committed a robbery in Manayunk.

            On October 15, 2001, when police attempted to stop
      [A]ppellant for disregarding a stop sign, [A]ppellant sped off,
      went through traffic signals and finally stopped on the sidewalk.
      Appellant then fled on foot and struggled with police as they
      apprehended him. Police recovered thirteen $100.00 bills from
      [A]ppellant’s person. Appellant later gave a voluntary statement
      to police in which he admitted his participation in the crimes.
      Additionally, while [A]ppellant was incarcerated awaiting trial, a
      fellow inmate, Ernest Johnson, heard [A]ppellant tell another
      inmate that he had to shoot Mr. Renner because he had seen
      [A]ppellant’s face, and that [A]ppellant planned to blame his son
      for everything.

Trial Court Opinion, 6/22/09, at 2-3.




                                    -2-
J-A09003-15



      Following the imposition of his sentence, Appellant, represented by

trial counsel, filed a timely direct appeal.   However, due to an insufficient

brief, this Court determined that all of Appellant’s issues were waived.

Accordingly, Appellant sought post-conviction relief via the Post-Conviction

Relief Act (“PCRA”). In his PCRA petition, Appellant raised various claims of

ineffective assistance of counsel and also sought the reinstatement of his

direct appeal rights nunc pro tunc. The PCRA court conducted an evidentiary

hearing where both Appellant and his trial attorney testified.      The court

denied Appellant’s petition on the merits.

      Appellant appealed, and this Court reversed solely as to the denial of

Appellant’s direct appeal rights. Thus, Appellant’s direct appeal rights were

reinstated.   This Court did not address Appellant’s remaining ineffective

assistance of counsel claims.    In Appellant’s reinstated direct appeal, he

raised only ineffective assistance of counsel issues.       This Court, in a

published en banc decision, determined that Appellant’s ineffectiveness

claims could not     be   addressed during his reinstated direct appeal.

Commonwealth v. Barnett, 25 A.3d 371 (Pa.Super. 2011) (en banc),

vacated by 84 A.3d 1060 (Pa. 2014).          The Pennsylvania Supreme Court

vacated that order and remanded the case to the PCRA court after its

decision in Holmes, supra.

      The Holmes Court held, in pertinent part, that ineffectiveness claims

cannot be addressed on direct appeal absent a waiver of PCRA rights.        It

                                     -3-
J-A09003-15



determined that where good cause is shown, and a defendant waives PCRA

review,    ineffectiveness     claims    may     be   addressed   on   direct   appeal.

Thereafter, the PCRA court conducted a waiver colloquy and Appellant, with

the agreement of the Commonwealth, waived his right to PCRA review. The

matter is now ready for this Court’s review. Appellant raises the following

issues on appeal.1

       1. Trial Counsel and Appellate Counsel rendered ineffective
          assistance of Counsel for failing to properly preserve and file
          for appeal issues raised at trial regarding a) evidence of
          Appellant’s flight from an unrelated incident as evidence of
          Appellant’s guilt in the instant case; b) introduction of
          evidence of money seized from the defendant in an unrelated
          incident as evidence of “sudden wealth” of the Defendant
          from the instant case; c) the introduction of testimony and
          evidence of Appellant’s arrest for a crime unrelated to the
          criminal charge for which he was on trial.

       2. Trial Counsel was ineffective for failing to request an
          instruction that the charges which gave rise to the evidence
          of the defendant’s flight and moneys found on the defendant
          were unrelated to the charge for which he was on trial [and]
          were dismissed for lack of prosecution;

       3. That trial Counsel was ineffective in failing to object to the
          Commonwealth’s closing argument where the prosecution
          argued that it need not prove a specific intent to kill in order
          to be found Guilty of Murder in the First Degree and was
          ineffective in failing to object to the trial Court’s instruction
____________________________________________


1
  Both Appellant and the Commonwealth have filed the same principal brief
lodged in the prior appeal.      The Commonwealth, however, has now
abandoned its originally-briefed position that Appellant’s ineffectiveness
claims must be deferred until PCRA review. As the Commonwealth does not
challenge whether good cause exists, we do not consider that question
herein.



                                           -4-
J-A09003-15



         that Appellant could be found Guilty of Murder in the First
         Degree on the acts, circumstantial or direct of an accomplice,
         co-conspirator thereby instructing the jury that the
         Commonwealth did not need to prove a specific intent to kill
         by appellant to be found Guilty of Murder in the First Degree.

      4. That trial counsel was ineffective for failure to object to the
         introduction to or preserve for appeal and file for appeal in
         the introduction of the testimony of Craig Walker of the
         testimonial statement of Defendant’s son/co-Defendant
         Robert Barnett, Jr. that “you didn’t have to shoot him”;

      5. That trial counsel failed to properly preserve or file an appeal
         to the introduction of unrelated criminal actions and/or
         prejudicial testimony relating to the Appellant that related to
         an Office Max Robbery in the Plymouth Meeting Mall and a
         composite sketch pursuant to the defendant and the
         defendant’s son;

      6. That trial Counsel failed to fully and properly advise Appellant
         regarding his right to testify at trial and therefore the
         Appellant’s decision not to testify was not fully knowing,
         involuntary [sic] or intelligent including but not limited to
         being ineffective for failing to investigate defendant’s access
         to cash money on Appellant’s behalf that would have rebutted
         the prosecution’s theory of “sudden wealth”.

Appellant’s brief at 4 (inconsistent capitalization in original).

      Appellant’s issues are premised on ineffective assistance of counsel.

“To plead and prove ineffective assistance of counsel a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel's

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel's act or failure to act.” Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet any of

these aspects of the ineffectiveness test results in the claim failing. Id.



                                       -5-
J-A09003-15



      Arguable merit exists when the factual statements are accurate and

“could establish cause for relief.” Id. at 707. Whether the “facts rise to the

level of arguable merit is a legal determination.”        Id.   In considering

whether counsel acted reasonably, we look to “whether no competent

counsel would have chosen that action or inaction, or, the alternative, not

chosen, offered a significantly greater potential chance of success.”       Id.

“Counsel's decisions will be considered reasonable if they effectuated his

client's interests. We do not employ a hindsight analysis in comparing trial

counsel's actions with other efforts he may have taken.”         Id. (citations

omitted).   Lastly, prejudice exists where “there is a reasonable probability

that, but for counsel's errors, the result of the proceeding would have been

different.” Id. This probability is sufficient when it “undermines confidence

in the outcome of the proceeding.”       Id.   Counsel is presumed to have

rendered constitutionally effective representation.       See Strickland v.

Washington, 466 U.S. 668, 689 (1984)

      Appellant’s initial claim is actually three separate issues.        First,

Appellant asserts that counsel erred in failing to object to the admission of

evidence of Appellant’s flight from an unrelated incident, i.e., his arrest for

possession of cocaine. Next, he avers that trial counsel rendered ineffective

assistance in allowing into evidence money that was seized from that arrest.

Lastly, Appellant posits that trial counsel was ineffective because he did not

object to the introduction of Appellant’s arrest for another criminal charge.

                                     -6-
J-A09003-15



      With respect to Appellant’s first argument, trial counsel did file a

motion in limine seeking to preclude the Commonwealth from introducing

evidence from Appellant’s arrest on October 16, 2001.            At that time,

Appellant was operating a stolen vehicle and in possession of drugs. When

police attempted to pull him over after he ran a stop sign, he fled in his car

and then on foot. Police captured him and recovered $1300 in his pocket.

Appellant maintained that the evidence of the arrest and flight therefrom

should be precluded because it was unrelated to the charges in this case.

      The trial court granted Appellant’s motion in part.        Specifically, it

precluded the Commonwealth from introducing evidence that the car was

stolen, and that Appellant possessed drugs and made a throwing motion

during his flight.   However, the court permitted the Commonwealth to

introduce the fact that Appellant fled from police and that they recovered

$1300 in cash when he was arrested.

      Appellant contends that the trial court’s ruling provided him with “the

ultimate Hobson’s choice.” Appellant’s brief at 15. According to Appellant,

the reason for his flight was the stolen car and illegal drugs, but to

demonstrate that position he would be “compelled to introduce to the jury

inadmissible criminal acts.”   Id.   In contrast, if Appellant did not indicate

that the reasons for his flight were for the stolen car and possession of

drugs, he would allow “the introduction to the jury of a false factual basis for

his flight[.]” Id. Appellant adds that the record establishes that he did not

                                      -7-
J-A09003-15



know that he was wanted for homicide when he fled and no arrest warrant

existed on that charge at the time.            Accordingly, he submits that

consciousness of guilt for homicide could not be proven where he did not

know that he was wanted for that crime.

      Since trial counsel filed a motion in limine seeking to preclude the

introduction of this evidence, including his flight, Appellant’s ineffectiveness

claim necessarily fails. Appellant also focuses his ineffectiveness position on

appellate counsel’s performance and his failure to preserve the issue in his

original direct appeal.      However, that concern became moot when

Appellant’s direct appeal rights were reinstated.        Because Appellant is

proceeding on direct appeal, his argument properly would be that the trial

court erred in ruling this evidence admissible.        We are cognizant that

although Appellant’s brief, as outlined above, sets forth this position,

Appellant in his statement of issues did not raise an argument of trial court

error despite presenting such an issue in his May 15, 2009 Rule 1925(b)

concise statement. As to the underlying issue, the Commonwealth reiterates

that trial court’s position that whether Appellant’s flight was the result of the

stolen car and drugs rather than the homicide went to the weight of the

evidence and not its admissibility.

      We find, in regards to Appellant’s trial court error arguments, aside

from waiver due to failure to include it in his statement of issues, that any

error in the admission of Appellant’s flight and the money recovered from

                                      -8-
J-A09003-15



him, was harmless error.2         An error “can be harmless only if the appellate

court is convinced beyond a reasonable doubt that the error is harmless.”

Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978).                         “When the

record reveals that an error did not prejudice the defendant, or that the

prejudice was so minimal that, beyond a reasonable doubt, it did not

influence the jury, [the Pennsylvania Supreme Court has] held the error

harmless.”     Id. at 164–165 (footnotes omitted).           “Under this approach, a

reviewing court first determines whether the untainted evidence, considered

independently of the tainted evidence, overwhelmingly establishes the

defendant's guilt.” Id. at 166.

       Here, Appellant confessed to police to being the getaway driver for the

robbery,    though     he   claimed     that   his   son   killed   the   victim.   The

Commonwealth also introduced evidence that Appellant told an inmate that

he shot the victim because he saw Appellant’s face.                  That inmate also

testified that Appellant indicated that he would place the blame on his son.

The prosecution offered evidence that Appellant’s girlfriend provided a

statement to police that Appellant admitted to her that he committed a
____________________________________________


2
   We recognize the distinction between an ineffectiveness claim and whether
prejudice exists and a harmless error analysis.         Commonwealth v.
Freeland, 106 A.3d 768, 776 (Pa.Super. 2014); Commonwealth v.
Howard, 645 A.2d 1300 (Pa. 1994). Since we are analyzing Appellant’s
trial court error arguments and not an ineffectiveness position, we employ
the harmless error standard. Of course, when an error is harmless a
defendant cannot establish actual prejudice under the ineffectiveness rubric.



                                           -9-
J-A09003-15



robbery in Manayunk when she questioned him about the large sum of

money he possessed.      In addition, the Commonwealth presented evidence

from Appellant’s friend, Craig Walker, who testified that Appellant asked him

to take part in a robbery. Appellant and his son thereafter both admitted to

Mr. Walker to committing the robbery.           In doing so, Appellant’s son

remarked that Appellant should not have shot the victim. Further, there is

no dispute that one day after the robbery and murder, Appellant and his son

purchased two vehicles with approximately $15,000 in cash.            For these

reasons, we find that any prejudice to Appellant was minimal and would not

have influenced the jury.

      Appellant also argues that counsel was ineffective in permitting the

introduction of the money seized during the traffic stop as evidence of

sudden wealth.    As noted, counsel did object and sought to preclude this

evidence from being admitted. Hence, trial counsel cannot be ineffective on

that ground. Further, for the same reason outlined above, any claim of

appellate counsel ineffectiveness for not raising a claim of trial court error on

direct appeal is moot since Appellant’s appeal rights were reinstated.

      Appellant also, though having set forth the claim in his brief as his

second issue, posits in the initial argument section of his brief that counsel

erred in failing to seek a jury instruction that the Commonwealth returned to

him the money it seized.     We note our disapproval of Appellant’s briefing




                                     - 10 -
J-A09003-15



method in this regard. Pointedly, Appellant’s second argument in his brief

pertains to his third issue, resulting in unnecessary confusion.

      With respect to the merits, Appellant avers that “[d]ue to trial

[c]ounsel’s ineffectiveness, . . . . the jury [was] never made aware of the

fact that all the charges rising out of the October 16, 2011 case were

dismissed and the monies in fact which would apparently identify the

defendant to the crime of September 8, 2001 were returned to the

defendant.” Appellant’s brief at 17. Continuing, he submits, “[t]he jury is

told, falsely, that the monies are the only thing taken from the defendant at

the time of this stop as a result of an inventory search.” Id.

      We again note that Appellant has muddled together his argument

relative to trial counsel ineffectiveness and trial court error. See Appellant’s

brief at 17-18; Id. at 18 (“In the present case, the Court improperly

permitted the introduction of the evidence of flight and sudden wealth to the

prejudice of the defendant.”).    The majority of Appellant’s position as to

sudden wealth focuses on trial court error, a distinct claim from counsel’s

ineffectiveness. See Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005).

Moreover, other properly admitted evidence of Appellant’s sudden wealth,

pertaining to his purchase of vehicles, was admissible.       Hence, any trial

court error in admitting evidence of Appellant’s possession of $1300 was

harmless. Lastly, he has not forwarded any additional argument as to the

introduction of testimony and evidence of Appellant’s commission of another

                                     - 11 -
J-A09003-15



crime.   Frankly, he does not specify what evidence or other crime he is

referencing. Accordingly, he is entitled to no relief.

      In Appellant’s second argument, which, as mentioned, is his third

issue, he asserts that trial counsel was ineffective for failing to object to the

prosecutor’s closing argument and neglecting to object to the jury

instruction on specific intent relative to accomplice liability.       Appellant

contends the following statement by the prosecutor was erroneous:

      if I assist you in the commission of a criminal act-let’s say we
      agree to rob a bank together. You say we are going to rob this
      bank together. I tell you I’ll get the map of the bank and I’ll find
      out really good times and I’ll get the combination to the vault
      and I do that, and I come to you and I say okay, here’s the map,
      go in this way, make a left, the vault will be straight ahead of
      you, the combination is 1, 2, 3, now, go ahead, and when you
      come back, we’re going to share whatever. And you say fine
      and you go off and go into that bank . . . .and you come out and
      come back to my house and you give me half of the stuff, I
      never set foot in that bank but I am every bit as responsible as
      you are for that burglary and that theft of the bank because we
      did it together. I am your accomplice. . . .But you decided, you
      know, I think I’m going to take a gun in case. And you went into
      that bank and while you’re inside that bank following my map,
      pushing the numbers I told you to push, the security guard
      comes up behind you and says ‘freeze’ and you pull out your
      gun, turn around and shoot him and then you finish getting the
      securities and the bonds and the baubers and you come back out
      and you come back to my house and you give me the money.
      I’m as responsible as you are for the shooting of the security
      guard because we share responsibility for that crime we have
      entered into together.

N.T., 11/26/02, at 88. In addition, Appellant challenges counsel’s failure to

object to the prosecution’s statement that,




                                     - 12 -
J-A09003-15



      A killing of the first degree is a killing with malice and a specific
      intent to kill. The shooter or his accomplice or his co-conspirator
      must have a fully formed intent to cause the death of this victim
      before the trigger is pulled.            That consciousness, that
      premeditation, that intent to cause the death of your victim does
      not have to be long in its formation. You must have entered
      4120 Main Street with the belief that with his military precision,
      we’re going to get that blanket over his head.

Id. at 91-92.

      Appellant asserts that these portions of the prosecutor’s summation

erroneously posited that, “the specific intent to kill necessary for [m]urder in

[the] [f]irst [d]egree may be held by one person and imputed to another.”

Appellant’s brief at 20.    He adds that these erroneous statements were

compounded when the trial court instructed the jury on accomplice liability.

According to Appellant, trial counsel should have objected to the following

instruction,

      Now, members of the jury if you believe that the petitioner or
      accomplice or co-conspirator intentionally used a deadly weapon
      on a vital part of the victim’s body, you may regard that as an
      item of circumstantial evidence for which you may infer that the
      petitioner in his own mind had a specific intent to kill.

N.T., 11/26/02, at 113-114.

      Appellant argues that this instruction failed to adequately set forth that

the defendant himself must possess the requisite specific intent to kill to be

guilty of first-degree murder as an accomplice. In leveling this aspect of his

argument, Appellant acknowledges that jury instructions must be read in

their entirety. Nonetheless, he asserts that where a trial court instructs both



                                     - 13 -
J-A09003-15



correctly and incorrectly and it cannot be discerned which instruction the

jury followed, such error results in prejudice. Appellant’s brief at 22 (citing

Commonwealth v. Waller, 468 A.2d 1134 (Pa.Super. 1983)).              Waller,

however, is not precedential since it was a three-judge panel with one judge

concurring in result and another dissenting.

      Appellant also relies on Commonwealth v. Flanagan, 854 A.2d 489

(Pa. 2004). In Flanagan, the defendant entered a general plea of guilty to

homicide. During his plea, he acknowledged that it was presumed at that

time that he was guilty of third-degree murder, but the Commonwealth

could establish a higher degree of murder at a degree of guilt hearing. In

addition to a defective plea colloquy, the plea court “erroneously advised

Flanagan that accomplice theory renders an accomplice liable for ‘any crimes

committed by any other accomplice regardless of whether a particular

accomplice committed the particular crime about which we are talking.’” Id.

at 493. It incorrectly added,

      So that if there are people who are accomplices in the
      commission of a crime, commission of a murder, commission of
      a robbery, in a commission of a theft, and if only one of them
      actually commits the crime but if the other person is his
      accomplice, he is helping him, he is aiding him, he is assisting
      him in committing it, then the person who aids and assists and
      helps and cooperates is equally guilty of the commission of any
      crimes committed by the person he aided.

Id.




                                    - 14 -
J-A09003-15



      During PCHA review, the PCHA court determined that plea counsel was

ineffective and granted Flanagan’s request for a trial. Both this Court and

our Supreme Court affirmed.       Appellant maintains that the prosecutor’s

explanation of accomplice liability and the trial court’s accomplice liability

instruction were akin to the Flanagan trial court’s erroneous statement of

the law.

      The Commonwealth first counters that the prosecutor’s argument was

legally correct. It adds that the prosecutor did not argue that Appellant was

an accomplice but sought a conviction based on the theory that he was the

shooter. Lastly, the Commonwealth reasons that the jury instructions read

as a whole establish that the jury was repeatedly informed that Appellant

must have formed a specific intent to kill to be found guilty of first-degree

murder.

      Initially, we address Appellant’s claims relative to the prosecutor’s

summation.    We agree that the prosecutor’s initial statement relative to

accomplice liability with respect to murder was inaccurate. A person is only

responsible as an accomplice for first-degree murder if he possesses the

requisite specific intent to kill.     Id. at 501 (“to be convicted as an

accomplice,   a   person   must      act   with   the   requisite   mens   rea”);

Commonwealth v. Bennett, 57 A.3d 1185, 1201 (Pa. 2012) (“the charge,

when read in its entirety, appropriately conveys that an accomplice or co-




                                      - 15 -
J-A09003-15



conspirator must possess the specific intent to kill in order to be found guilty

of first-degree murder.”).

         Therefore, the prosecutor’s hypothetical bank scenario would not

establish accomplice liability for first-degree murder merely because one

agreed to rob the bank and a person was shot. Rather, the accomplice must

have shared a specific intent to kill to be considered an accomplice for first-

degree murder.         Similarly, the second statement at issue is less than

precise. If a shooter possesses “a fully formed intent to cause the death of

his victim[,]” N.T., 11/26/02 at 91, but his accomplice does not, then the

accomplice is not guilty of first-degree murder.

         Nonetheless, we do not find that Appellant is entitled to a new trial due

to counsel’s failure to object.           Appellant has omitted the prosecutor’s

argument       immediately    following    the     latter   disputed   portion   of   the

prosecutor’s summation. There, the prosecutor made it clear that she was

arguing that Appellant was the actual shooter. Notably, the prosecutor set

forth,

                We’re going to put that blanket over his head. We’re going
         to prevent him from seeing our face. He’ll never be able to
         identify us. . . .But when you see that victim poking up under
         the blanket and looking at you and you realize, oh, wait a
         minute. He sees our face. If we want to get out of here without
         him being able to identify us, there’s only one way to do that.
         Bang.

               That moment of reflection as you’re taking the muzzle of
         that gun and pressing it against the head of another human
         being before you pull that trigger, that’s specific intent to kill and

                                          - 16 -
J-A09003-15



      that is first-degree murder and that is what this defendant
      committed.

N.T., 11/26/02, at 92-93.

      She continued by noting that, if a person commits a robbery and

another person is killed and “[y]ou don’t mean for it to happen[,]” then you

are guilty of second-degree murder. Id. at 93. Thus, the full context of the

argument reveals that the prosecutor was not contending that Appellant

could be found guilty as an accomplice without a specific intent to kill.

Accordingly, because the prosecutor did not argue that Appellant should be

convicted as an accomplice and, as will be outlined infra, the trial court

instructed the jury that Appellant must have a specific intent to kill,

Appellant cannot establish actual prejudice. See Bennett, supra.

      In regards to Appellant’s jury instruction, we are guided by the

following principles.

      “It is axiomatic that, in reviewing a challenged jury instruction,
      an appellate court must consider the entire charge as a whole,
      not merely isolated fragments, to ascertain whether the
      instruction fairly conveys the legal principles at issue.”
      Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167,
      1187 (1999).      “An instruction will be upheld if it clearly,
      adequately and accurately reflects the law. The trial court may
      use its own form of expression to explain difficult legal concepts
      to the jury, as long as the trial court's instruction accurately
      conveys the law.” Commonwealth v. Spotz, 563 Pa. 269, 759
      A.2d 1280, 1287 (2000) (citation omitted).

Commonwealth v. Cook, 952 A.2d 594, 626-627 (Pa. 2008).                In the

present case, the court instructed the jury, “In order to find this defendant



                                    - 17 -
J-A09003-15



guilty of murder of the first degree you must find that he, in his own mind,

had the specific intent to kill and that the killing was a willful, deliberate and

premeditated act.” N.T., 11/26/02, at 112. It later reiterated, “Murder of

the first degree requires that the defendant in his own mind have the

specific intent to kill. It is an unlawful, willful, deliberate and premeditated

killing with malice.” Id. at 119. Therefore, the jury was properly instructed

that it could only find Appellant guilty of first-degree murder if it determined

that he had a specific intent to kill Mr. Renner.            See Bennett, supra.

Appellant cannot establish actual prejudice.

       In his next issue, Appellant contends that trial counsel was ineffective

for failing to object to the introduction to the testimony of Craig Walker

regarding Appellant’s son’s statement to his father that “you didn’t have to

shoot him.”      N.T., 11/21/02, at 185.3          He submits that the trial court’s


____________________________________________


3
  We note our disapproval with the Philadelphia Clerk of Courts, which
consistently has failed to supply this Court with the complete certified record
even in cases where the appellant has requested the pertinent transcripts.
Despite this Court entering an order during the prior appeal in this matter to
ensure that transcripts were provided, the transcripts for November 21,
2002 and November 22, 2002 are not contained in the certified record. This
Court previously made official attempts to secure all of the trial transcripts in
this matter and made unofficial inquiries after remand as well. While this
Court generally may only consider facts that have been duly certified in the
record, Commonwealth v. Young, 317 A.2d 258, 264 (Pa. 1974), where
the accuracy of a document is undisputed and contained in the reproduced
record, we may consider it. Commonwealth v. Brown, 52 A.3d 1139,
1145 n.4 (Pa. 2012). Here, the reproduced record contains the relevant
(Footnote Continued Next Page)


                                          - 18 -
J-A09003-15



admission of this statement as admissible hearsay violated his confrontation

clause rights.   Appellant acknowledges that trial counsel filed a motion in

limine to preclude this evidence and repeatedly objected to the introduction

of his silence as a tacit admission. However, trial counsel did not object to

the prosecutor’s closing argument that extensively highlighted the tacit

admission. Thereafter, with the agreement of trial counsel, see id. at 100-

101,4 the trial court instructed the jury as follows,

      there was a statement by the defendant’s son that was made in
      the presence of the defendant.          This statement of the
      defendant’s son is not evidence and does not have any probative
      value and should not be considered for its truthfulness.

            However, where a person is accused of a crime or of doing
      a criminal act and he fails to respond, that is, remain silent, that
      silence may be a circumstance tending to show a tacit admission
      of the facts of the accusation. Such silence does not necessarily
      tend to prove an admission. A person may choose not to
      respond and remain silent in the face of an accusation for a
      variety of motive[s] or reasons and may do so even though the
      accusation is false and untrue.

N.T., 11/26/02, at 131-132. Appellant does not challenge the prosecutor’s

argument. Instead, Appellant again confuses the procedural posture of this

matter by asserting that prior appellate counsel was ineffective for not
                       _______________________
(Footnote Continued)

transcripts and there is no dispute as to their contents.        We therefore
considered them in our review.
4
  Trial counsel did object to the introduction of the evidence, and even after
acquiescing to the jury instruction repeatedly noted that he had objected to
the introduction of the tacit admission evidence.




                                           - 19 -
J-A09003-15



addressing the admission of the tacit admission evidence in the previous

direct appeal.   As we have repeatedly mentioned supra, Appellant is now

proceeding on direct appeal. Prior appellate counsel’s ineffectiveness is no

longer at issue because Appellant’s direct appeal rights were reinstated and

he was free to raise the alleged error as trial court error.    Nevertheless,

since Appellant has waived further PCRA review, we decline to find waiver

based on appellate counsel’s imprecise briefing.

      In Commonwealth v. Vallone, 32 A.2d 889 (Pa. 1943), overruled in

part by Commonwealth v. Dravecz, 227 A.2d 904 (Pa. 1967), our

Supreme Court, without citation and with one justice vigorously dissenting,

stated,

            The rule of evidence is well established that, when a
      statement made in the presence and hearing of a person is
      incriminating in character and naturally calls for a denial but is
      not challenged or contradicted by the accused although he has
      opportunity to speak, the statement and the fact of his failure to
      deny it are admissible in evidence as an implied admission of the
      truth of the charges thus made.

Vallone, supra at 890.

      In Dravecz, police officer read a statement to the defendant that

implicated the defendant in a burglary.      The accused made no comment

once the officer was done reading the statement. The Supreme Court issued

four separate opinions, with the ultimate outcome being that the tacit

admission was inadmissible.     The holding in Dravecz was subsequently

modified in Commonwealth v. Schmidt, 299 A.2d 254 (Pa. 1973).              In

                                    - 20 -
J-A09003-15



Schmidt, the defendant was found guilty of murder during a burglary.

During his trial, two witnesses testified that shortly after the burglary they

were with Schmidt and his co-defendant in a car when the co-defendant said

that he was going to burn his fingerprints.     Schmidt made no reply.    The

Court found that the “statement accused Schmidt of nothing; he was not the

subject of the remark, and thus there was no reason for him to make any

response.   The evidence, therefore, lacked probative value in establishing

the defendant Schmidt’s participation[.]” Id. at 265.

      However, the court held that the admission did not entitle the

defendant to post-conviction relief because it did not violate his Fifth

Amendment right against self-incrimination. At that time, only constitutional

mistakes afforded relief under the PCHA.       The Schmidt Court stated that

tacit admissions only violate the      constitution in the face of police

questioning.   Subsequently, in Commonwealth v. Coccioletti, 425 A.2d

387 (Pa. 1981), our Supreme Court provided that Dravecz, supra “was

limited to implied admissions made while in custody or in the presence of

police officers.” Coccioletti, supra at 392.

      Both this Court and the Pennsylvania Supreme Court most recently

addressed tacit admissions in Commonwealth v. Molina, 33 A.3d 51

(Pa.Super. 2011) (en banc), affirmed by, 104 A.3d 430 (OAJC). In Molina,

an en banc Court ruled that a prosecutor’s closing summation was improper

where he argued that the defendant’s pre-arrest silence, in not speaking to a

                                    - 21 -
J-A09003-15



missing persons investigator, should be used as a tacit admission of guilt in

a homicide case.

         A   divided   Pennsylvania   Supreme   Court   affirmed   on   separate

constitutional grounds. Rather than rely on the federal constitution, the lead

opinion by Justice Baer found that the use of tacit admissions involving law

enforcement violated the Pennsylvania Constitution’s prohibition against

compelled testimony.         Here, Appellant does not argue that his Fifth

Amendment right against self-incrimination or his related Pennsylvania

Constitutional right against self-incrimination are implicated.          Rather,

Appellant posits that his confrontation clause rights were violated because

he was not afforded an opportunity to confront his son. Appellant relies on

Crawford, supra in support. He maintains that there was no evidence that

his son was unavailable and avers that the statement was admitted for its

truth.

         The Commonwealth relies on Commonwealth v. Bartlett, 704 A.2d

659, 662 (Pa.Super. 1997), and Commonwealth v. Faraci, 466 A.2d 228,

232 (Pa.Super. 1983), in arguing that tacit admissions are admissible. This

Court, in Faraci, relied on dicta from both Commonwealth v. Bolish, 113

A.2d 464 (Pa. 1955), and Commonwealth ex rel. Shadd v. Myers, 223

A.2d 296 (Pa. 1966). In neither of these cases was introduction of a tacit

admission upheld.




                                       - 22 -
J-A09003-15



       The Commonwealth continues that Crawford is inapplicable because

the “actual ‘statement’ in this context is a ‘statement’ (by conduct) on the

part of defendant.” Commonwealth’s brief at 20 (citing Commonwealth v.

Brooks, 50 A.2d 325, 327 (Pa. 1947)).5 Finally, it submits that Appellant

cannot establish actual prejudice in light of the other evidence arrayed

against him.

       Here, it is accurate that Appellant’s son’s statement was not the

evidence at issue, and the court instructed the jury that it could not consider

the statement for its truth. Rather, it was Appellant’s own silence in the face

of that statement that was the evidence, which is why the tacit admission

rule has ordinarily been questioned on self-incrimination grounds and not

the confrontation clause.         But see Commonwealth ex rel. Staino v.

Cavell, 217 A.2d 824, 832-833 (Pa.Super. 1966) (Hoffman, J., dissenting)

(opining that tacit admission evidence that defendant remained silent after

police read a signed confession by a co-defendant and the defendant did not




____________________________________________


5
  The Commonwealth’s argument overlooks that its position is proof that the
tacit admission was being used as self-incrimination evidence.           Since
Appellant does not level a self-incrimination challenge, we are not faced with
reaching such a determination. But see Commonwealth ex rel. Staino v.
Cavell, 217 A.2d 824 (Pa.Super. 1966) (Hoffman, J., dissenting).




                                          - 23 -
J-A09003-15



speak, after being advised that he was not required to say anything, violated

both his right against self-incrimination and confrontation right.).6

       In   Brooks,      supra,        referenced    by   the   Commonwealth,     the

Pennsylvania Supreme Court ruled that a signed confession by Brooks’ co-

conspirator, Albert Wooding, which Brooks read and signed as a witness to

hearing Wooding’s oral confession, was admissible as “tacit acquiescence[.]”

Brooks, supra at 327.               In so ruling, it rejected the defendant’s

Pennsylvania constitutional claim that this violated his right “to meet the

witnesses face to face.”         Id.     Prior to Brooks, in Vallone, supra, the

Pennsylvania Supreme Court noted that an “accusatory statement, being

hearsay, is not admissible as evidence in itself of the facts which it asserts,

but merely to show what the charges were to which defendant offered no

denial[.]” Vallone, supra at 890.              Simply put, the evidence in question is

the reaction of the defendant and not the statement; therefore, the

confrontation clause was not implicated.

       Similarly, in the companion cases of Rose, supra and Oreszak,

supra, the Pennsylvania High Court addressed the right to confront

witnesses where written statements of a co-conspirator were introduced

against the defendant. The Rose Court opined that the statement “was not
____________________________________________


6
 The opinion in support of affirmance in Commonwealth ex rel. Staino v.
Cavell, 217 A.2d 824 (Pa.Super. 1966), is no longer sound.         See
Commonwealth v. Dravecz, 227 A.2d 904 (Pa. 1967).



                                           - 24 -
J-A09003-15



introduced as the testimony of his accomplices, thereby depriving him of the

right of cross-examination, but it was offered as a confession by him in so

far as he admitted the facts stated in his presence by the other participants

in the crime, and explained his part in its perpetration.” Rose, supra at 18.

In Oreszak, the same evidence was challenged. Oreszak, however, was not

present   when   some   of   his   co-defendants’   statements   were   made.

Nonetheless, police read the entire transcript of his accomplices’ statements

to him and he signed the joint statement.     Setting aside that these cases

involved law enforcement, and their holdings are now invalid, in none of

those cases was there a tacit admission; rather, the defendants provided

signed confessions.

       In Staino, supra, Judge Hoffman undertook a confrontation clause

analysis relative to a tacit admission in the face of police questioning.

There, five police officers accompanied Staino into a small room, where a

police captain advised him that he could remain silent and that anything he

said could be used against him at trial.       Police then provided an oral

statement purportedly given by Robert Poulson implicating Staino in a

burglary. Staino remained silent, or said, “I have nothing to say.”     Id. at

826.   Later, police, after again advising him of his right to remain silent,

read him a signed statement by Poulson that set forth that Staino was

involved in the aforementioned burglary.     Staino responded by saying, “I

have nothing to say” and remained silent.           Id.   At trial, these tacit

                                    - 25 -
J-A09003-15



admissions were admitted into evidence and Staino was convicted.       Judge

Hoffman, posited, “The use of the tacit admission in this case was also

constitutionally defective because appellant was denied the protection of his

constitutional right of confrontation when the oral and written statements of

Robert Poulson were admitted into evidence.” Id. at 832. In support, he

relied on Douglas v. Alabama, 380 U.S. 415 (1965).

       In Douglas, a co-defendant named Loyd had signed a confession

implicating Douglas in the shooting of the victim. When called at trial, Loyd

invoked his right against self-incrimination. The prosecutor was permitted to

read Loyd’s signed confession, although it was not introduced into evidence.

The Supreme Court found that the defendant’s inability to cross-examine

Loyd permitted the jury to impermissibly infer that Loyd’s statements had

been made and were true. Accordingly, it ruled that Douglas’ confrontation

clause right was infringed.        In Staino, Judge Hoffman reasoned that the

reading of Poulson’s statement, though not evidence, “may lead a jury to

infer that the statement has been made and that it was true, especially since

the maker does not appear to deny the statement.” Id. at 832-833.7 The

opinion, however, was non-precedential.


____________________________________________


7
 The Superior Court was evenly split; therefore, the lower court’s decision
was affirmed.




                                          - 26 -
J-A09003-15



       Despite the serious erosion of the foundations for the tacit admission

rule, neither this Court nor our Supreme Court has held in a binding opinion

that it violates a defendant’s confrontation clause rights.8 Nonetheless, trial

counsel did seek to preclude the admission of this evidence.            While trial

counsel did not object to the prosecutor’s closing argument relative to the

tacit admission, Appellant has not challenged that aspect of trial counsel’s

performance and the prosecutor’s argument was consistent with the trial

court’s earlier ruling. Trial counsel cannot be ineffective where he made an

argument to preclude the introduction of the tacit admission, especially

where preclusion would have been a change in the existing case law since no

law enforcement officials were involved.           See Faraci, supra.   Appellant’s

ineffectiveness issue does not entitle him to relief.

       The penultimate claim Appellant advances on appeal is that trial

counsel was ineffective for neglecting to properly preserve or file an appeal

to the introduction of unrelated criminal actions and/or prejudicial testimony

relating to a separate robbery.         The specific evidence contested on appeal

relates to testimony from Craig Walker. The trial court permitted Mr. Walker

____________________________________________


8
  We are of the view that Chief Justice Maxey’s dissent in Commonwealth
v. Vallone, 32 A.2d 889 (Pa. 1943), offers persuasive reasoning, even
setting aside constitutional concerns, that the probative value of a tacit
admission is far exceeded by its prejudicial nature. In an appropriate case,
i.e., where the issue is developed and argued, we would urge our Supreme
Court to strongly consider reevaluating the continued viability of the rule.



                                          - 27 -
J-A09003-15



to testify that, while watching the news with his girlfriend, he saw a story

regarding a robbery at the Plymouth Meeting Mall. During the course of that

newscast, surveillance video depicting the assailant was shown. Mr. Walker

testified that the individual involved resembled Appellant’s son.

      Appellant argues that this testimony was “irrelevant prejudicial

testimony[.]” Appellant’s brief at 26. He acknowledges that the trial court

provided a cautionary instruction, but maintains that the instruction was

insufficient. Appellant asserts that the instruction did not address his son’s

alleged actions and his son was considered a co-conspirator in the case.

      Appellant admits that trial counsel did seek to preclude this evidence

pre-trial and objected at trial.     Nonetheless, he submits that original

appellate counsel, who was also trial counsel, was ineffective in not

preserving the issue.    The Commonwealth responds that, because trial

counsel did object and the court issued a cautionary instruction, no prejudice

exists.

      Yet again Appellant has ignored that his direct appeal rights have been

reinstated and he is in the same position as if the prior direct appeal did not

occur. Since trial counsel not only litigated the issue pre-trial in an attempt

to preclude the evidence, but also objected to the testimony, he cannot be

ineffective. What remains, and what Appellant fails to properly argue, is an

assertion of trial court error. We will not develop Appellant’s claim for him.

Regardless, the trial court’s instruction ameliorated any harm.     The court

                                    - 28 -
J-A09003-15



told the jury “that this particular incident that this witness testified to that

may or may not have occurred in Plymouth Meeting is in no way related to

this case, to this defendant, or any member of this defendant’s family.”

N.T., 11/21/02, at 178-179. The court continued,

      This defendant had nothing whatsoever to do with this particular
      incident that the witness spoke about. He says he saw it on TV
      and who it may have reminded him about or what anything else
      he told you about it is being permitted, but you should know that
      this defendant had nothing to do at all whatsoever in any way
      with that incident.

Id. at 179. Appellant’s claim is meritless.

      The final issue Appellant levels on appeal is that trial counsel failed to

properly advise him regarding his right to testify at trial and therefore his

decision not to take the stand was not knowing, voluntary or intelligent.

Appellant contends that trial counsel erroneously informed him that, should

he testify, his two prior non-crimen falsi convictions for firearms violations

could be brought out against him. He also asserts that counsel incorrectly

advised him that the Commonwealth might introduce evidence related to his

arrest for the stolen car and drugs.    Appellant maintains that absent this

advice, he would have elected to testify.

      The Commonwealth counters that trial counsel testified at the PCRA

evidentiary hearing that he believed Appellant would not do well under

cross-examination.    It adds that trial counsel testified that he believed

testimony from Appellant was unnecessary based on the cross-examination



                                     - 29 -
J-A09003-15



of the Commonwealth’s witnesses, and the presentation of one of his own

witnesses.   The Commonwealth notes that trial counsel’s fears “were well

founded.” Commonwealth’s brief at 24. It highlights that Appellant’s PCRA

testimony involved claims that police fabricated his confession, which still did

not make him the shooter, and that he earned over $300,000 at the time of

the crime.

      Trial counsel testified at the PCRA hearing, with respect to the firearms

convictions, that he informed Appellant that those convictions might not be

admissible. He further indicated that he also discussed with Appellant that

Appellant might not “be able to stand up on cross-examination[.]”         N.T.,

9/27/07, at 48.     Counsel also disputed that he instructed Appellant that

information related to the stolen car would be admissible.         Specifically,

counsel testified that the theft case had been dismissed or withdrawn and he

did not think the Commonwealth “would have been fishing around with

that.” Id. at 49.

      Contrary to Appellant’s claims, trial counsel did not testify that he

advised Appellant not to testify because his prior criminal history would be

admissible against him. Although trial counsel admitted that it was possible

that he discussed Appellant’s firearm convictions in conjunction with

discussing Appellant’s right to testify, he did not admit that he incorrectly

told Appellant that they would be admissible or instructed him not testify for

that reason.   Trial counsel also disputed the suggestion that he informed

                                     - 30 -
J-A09003-15



Appellant that evidence of the stolen car and drug incident could be used

against him. Based on trial counsel’s PCRA testimony, we cannot agree with

Appellant that counsel provided erroneous legal advice that caused him to

forego his right to testify.   Moreover, whether Appellant could withstand

vigorous cross-examination was a legitimate concern. Trial counsel was not

ineffective.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2015




                                    - 31 -
