J-S55018-14

                           2014 PA Super 247



COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                         Appellee           :
                                            :
            v.                              :
                                            :
GUILLMO (GUILLERMO) PEREZ,                  :
                                            :
                         Appellant          :     No. 3187 EDA 2013


          Appeal from the PCRA Order Entered November 8, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at Nos. CP-51-CR-0802241-2001
                      and CP-51-CR-1001271-2001.


BEFORE: BOWES, SHOGAN and OTT, JJ.

OPINION BY SHOGAN, J.:                                  Filed: October 29, 2014

      Appellant, Guillmo (Guillermo) Perez, appeals from the order denying

his petition for collateral relief filed pursuant to the Post Conviction Relief Act

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

      The facts and procedural history of the underlying criminal matter

were summarized by another panel of this Court, as follows:

            Mr. Levaughn Nesbitt testified he had been in an
      abandoned station wagon in a lot on Firth and Ninth Streets in
      Philadelphia with Appellant and the victim on June 1, 2001, just
      before 11:00 p.m. N.T., 4/15/03, at 103-04. The victim sat at
      the driver’s seat, Appellant sat in the front passenger seat and
      Mr. Nesbitt sat in the back seat on the driver’s side. Id. at 105.
      Mr. Nesbitt was smoking marijuana in the vehicle and shared
      some with the others, who had been smoking a “wet” [a
      marijuana cigar soaked in embalming fluid] when he got in the
      car. Id. at 106-107. Mr. Nesbitt witnessed Appellant pull a
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     black gun “out of nowhere,” hold it in his hand and state he was
     “going to use it,” after which the victim asked him to put the gun
     away, and Appellant complied. Id. at 107-108, 121. Mr. Nesbitt
     asked the victim to accompany him to the latter’s grandmother’s
     home to watch the remaining portion of a 76ers basketball
     game. The victim stated he would go there after he finished his
     “wet.” Id. at 108.

            Ms. Shakira Morse, the victim’s sister, testified she was
     visiting her grandmother’s home on June 1, 2001, when
     Appellant came to the door and asked to speak to the victim.
     Id. at 125-126. Appellant asked the victim for something, and
     the victim told Appellant to get it from “Roskoe.” Id. at 126.
     Appellant left and returned in about five minutes. Id. at 126.
     The men spoke again after which Appellant left the home, and
     the victim followed about five minutes later. Id. at 126-127.
     After approximately ten minutes had passed, Mr. Nesbitt came
     to watch the basketball game, and about fifteen minutes later,
     Ms. Morse heard gunshots. Id. at 127.

            Mr. Ismael Roman, the block captain, testified he lived at
     821 East Firth Street, and on the evening of June 1, 2001, he
     was home with his family when he heard one gunshot followed
     shortly thereafter by two more. Id. at 68-69. When Mr. Roman
     looked out his window, he saw Appellant trying to pull the gun’s
     slide forward to fire it while crossing back and forth in the middle
     of the street in front of Mr. Roman’s car. Id. at 72. He
     observed Appellant’s second shot hit the pavement and the third
     hit Mr. Roman’s automobile. Appellant then walked toward a
     vacant, littered lot located behind the houses in the 2500 Block
     of North Ninth Street. Id. at 68-76.

            Ms. Regina Hunter testified on the date of the incident she
     lived in a home at 2509 North Ninth Street. While she was
     watching the 76ers basketball game, Appellant broke through
     the locked back door of her home and tore apart her kitchen. He
     was holding something, but Ms. Hunter could not positively
     identify the object. Id. at 89-92. He was speaking like he was
     “crazy,” though he complied with Ms. Hunter’s order to leave
     through the front door. Id. at 92, 98.

          Detective Timothy Bass testified that on the evening of
     June 1, 2001 he was sent to the 800 Block of West Firth Street,


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     where he recovered two, fired cartridge casings and a hand gun
     among refuse in a vacant lot. Id. at 37-39. He also recovered
     another cartridge casing from an abandoned, brown Chevrolet
     station wagon. Id. at 35. The passenger front window had
     been shattered and both the driver’s door and front passenger
     doors were ajar. Id. at 46-48.

           Officer Demetrius Heggs testified he was in uniform and
     responded to a call at Ninth and Firth Streets on June 1, 2001.
     Id. at 131-132. Officer Heggs proceeded southbound on Ninth
     Street and came to the corner of Ninth and West Cumberland
     Streets where Mr. Roman provided him with a brief description
     of a male he saw firing a gun. Id. at 132-133. He observed a
     commotion at Appellant’s grandmother’s home; she explained he
     had burst in and gone upstairs. Id. at 133-134. Officer Heggs
     noticed Appellant walking down the stairs with a “large wound on
     his head.” Id. at 135-136. Appellant was speaking unintelligibly
     and appeared to be under the influence of drugs. Id. at 136-
     137, 142. Appellant walked out of the front door and traveled
     on foot eastbound on Cumberland Street from Ninth Street
     toward Eighth Street. Id. at 137. Officer Heggs called for
     backup as he followed Appellant in his patrol car. Id. Officer
     Heggs found himself at the scene of the homicide where he
     discovered a black male slumped over the steering wheel leaning
     towards the passenger side. Id. at 139. He also noticed a
     vehicle parked across the street from the station wagon with the
     windows shot out. Id. at 142.

           Officer Edwin Correa testified he backed up [O]fficer Heggs
     and first saw Appellant on the 2500 Block of Eighth Street after
     Mr. Roman directed his attention to Appellant. Id. at 150.
     Officer Correa identified himself as a police officer at which time
     it appeared to him that Appellant was going to flee. Officer
     Correa and his partner quickly walked over to Appellant, frisked
     him for weapons and placed him in their vehicle. Id. at 151-52.
     Appellant repeatedly exclaimed “Oh, God, please forgive me for
     what I did.” Id. at 152.

          Dr. Ian Hood testified the victim was pronounced dead at
     11:50 p.m. N.T., 4/16/03, at 50.       Dr. Hood performed an
     autopsy the next day at which time he observed two gunshot
     wounds on the victim’s body–one entrance wound in his chest



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     and one exit wound in his back.        These wounds caused the
     victim’s death. Id. at 49-60.

            On April 17, 2003, Appellant was found guilty of [third
     degree murder, carrying a firearm without a license, and
     carrying a firearm on a public street in Philadelphia] and was
     sentenced on June 17, 2003. On June 24, 2003, Appellant filed
     a Post-Sentence Motion which the trial court denied following a
     hearing on September 9, 2003. On April 28, 2004, Appellant
     filed a petition pursuant to the Post Conviction Relief Act (PCRA),
     pro se. On October 14, 2004, counsel was appointed and filed
     an amended PCRA petition. On December 7, 2006, Appellant’s
     appeal rights were reinstated nunc pro tunc, and counsel was
     permitted to withdraw on December 21, 2006. On January 4,
     2007, current counsel entered his appearance on behalf of
     Appellant and filed a Notice of Appeal on January 10, 2007.

Commonwealth v. Perez, 76 EDA 2007, 954 A.2d 40 (Pa. Super. filed May

30, 2008) (unpublished memorandum at 2–6) (footnotes omitted).             That

panel affirmed the judgment of sentence.      Id. at 10.   The Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal on

October 23, 2008.    Commonwealth v. Perez, 960 A.2d 455 (Pa. 2008).

On April 6, 2009, the United States Supreme Court denied Appellant’s

petition for certiorari. Commonwealth v. Perez, 556 U.S. 1170 (2009).

     On June 24, 2009, Appellant filed a PCRA petition and the court

appointed counsel.      On June 11, 2013, current counsel filed an amended

petition and, on September 3, 2013, the Commonwealth filed a motion to

dismiss the petition.     After counsel filed a reply to the Commonwealth’s

motion, on October 1, 2013, the PCRA court filed a dismissal notice pursuant




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to Pa.R.Crim.P. 907. On November 8, 2013, Appellant’s PCRA petition was

dismissed without a hearing. This appeal followed.

      Appellant presents the following issues for review:

      Is the [A]ppellant entitled to post-conviction relief in the form of
      a new trial or a remand for an evidentiary hearing as a result of
      the ineffective assistance of trial counsel?

      A. Is the [A]ppellant entitled to post-conviction relief in the form
      of a new trial or a remand for an evidentiary hearing since trial
      counsel rendered ineffective assistance of counsel when he failed
      to object to the trial court’s failure to give the jury a “no adverse
      inference” instruction?

      B. Is the [A]ppellant entitled to post-conviction relief in the form
      of a new trial or a remand for an evidentiary hearing since trial
      counsel rendered ineffective assistance of counsel when he failed
      to request the trial court to instruct the jury that prior consistent
      statements are not substantive evidence?

Appellant’s Brief at 4.1

      Our standard of review of a trial court order granting or denying relief

under the PCRA requires us to determine whether the decision of the PCRA

court is supported by the evidence of record and is free of legal error. “The

PCRA court’s findings will not be disturbed unless there is no support for the


1
     In the body of his brief, Appellant presents the additional argument, not
included in his Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, that the PCRA court erred when it denied him the opportunity to
present evidence in support of his claims at an evidentiary hearing. Issues
that are not set forth in an appellant’s statement of matters complained of
on appeal are deemed waived. Pa.R.A.P. 1925(b)(4)(vii); Commonwealth
v. Diamond, 83 A.3d 119, 136 (Pa. 2013).




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findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

      A PCRA petitioner alleging ineffectiveness of his counsel will be granted

relief only if he is able to prove that “in the circumstances of [his] particular

case,” the truth-determining process was undermined to the extent “that no

reliable adjudication of guilt or innocence could have taken place.”          42

Pa.C.S. § 9543(a)(2)(ii). The law presumes that counsel was effective, and

it is the petitioner’s burden to prove the contrary.        Commonwealth v.

Payne, 794 A.2d 902, 906 (Pa. Super. 2002).             Thus, to prove counsel

ineffective, the petitioner must show that:       (1) his underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his action or

inaction; and (3) the petitioner suffered actual prejudice as a result.

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013).                  To

satisfy the prejudice prong, it must be demonstrated that, absent counsel’s

conduct, there is a reasonable probability that the outcome of the

proceedings would have been different.        Commonwealth v. Charleston,

94 A.3d 1012, 1019 (Pa. Super. 2014). If it has not been demonstrated that

counsel’s act or omission adversely affected the outcome of the proceedings,

the claim may be dismissed on that basis alone, and the court need not first

decide   whether    the   first   and    second    prongs   have    been    met.

Commonwealth v. Rainey, 928 A.2d 215, 224–225 (Pa. 2007) (quoting

Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)).


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        With this analytical framework in mind, we first consider Appellant’s

claim that trial counsel was ineffective because he failed to object to the trial

court’s omission of a no–adverse–inference instruction in its charge to the

jury.   A no–adverse–inference instruction directs the jurors that they may

not draw any derogatory insinuation from a defendant’s failure to testify on

his own defense, because the defendant has the unqualified right not to take

the stand if he so chooses. Commonwealth v. Stanley, 830 A.2d 1021,

1022 n.1 (Pa. Super. 2003).

        At the close of the trial testimony, the trial court conducted an on–

the–record colloquy regarding Appellant’s right to testify. Appellant advised

the court that he did not intend to testify and that his decision was knowing,

voluntary, and intelligent. N.T., 4/16/03, at 80–81. Additionally, following

consultation with his counsel, Appellant indicated that he wanted the trial

court to include a no–adverse–inference instruction in its charge to the jury.

Id. at 78–79.       Despite Appellant’s election that the jury receive the

requested instruction, the trial court neglected to do so.        Defense counsel

did not object to the trial court’s dereliction in this regard.

        The Pennsylvania Supreme Court has stated that “as a matter of

Pennsylvania constitutional law, as under the United States Constitution,

criminal defendants in this Commonwealth are entitled to a ‘no–adverse–

inference’ jury instruction, when a timely request is made to the trial court.”

Commonwealth v. Lewis, 598 A.2d 975, 979 (Pa. 1991) (footnote


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omitted).    The post-Lewis development of adverse–inference instruction

jurisprudence was delineated by this Court in Stanley, 830 A.2d at 1024–

1025.    The Stanley Court dissected a trial court’s decision that counsel’s

failure to request an on–the–record colloquy with regard to the defendant’s

decision to waive his right to the instruction constituted prejudice per se,

and it granted the defendant a new trial based upon trial counsel’s inactivity.

On   appeal,    the   Stanley   Court    determined   that   resolution   of   the

ineffectiveness claim was steered by Commonwealth v. Thompson, 674

A.2d 217 (Pa. 1996), the seminal case concerning the adverse inference

issue. Stanley, 830 A.2d at 1024.

        In Thompson, the appellant claimed that his counsel was ineffective

because he did not request a no–adverse–inference instruction and did not

conduct a colloquy indicating that the right to an instruction was waived.

The Thompson Court determined that a trilogy of cases, namely, Lewis,

598 A.2d 975, Commonwealth v. Edwards, 637 A.2d 259 (Pa. 1993), and

Commonwealth v. Howard, 645 A.2d 1300 (Pa. 1994), offered the

following guidance:      “[T]he [no–adverse–inference] charge accurately

reflects the important legal maxim that silence is not evidence of guilt; the

charge is not required; however, once a defendant has expressed a clear

intent to either include or exclude the charge, that intent must be carried

out.” Thompson, 674 A.2d at 221. Although ultimately concluding that the

petitioner failed to demonstrate that he was prejudiced by counsel’s failure


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to request the instruction, the Thompson Court announced a new

prospective rule that “the no adverse inference instruction shall be given

absent an express on the record colloquy by the defendant waiving the

charge.” Id. at 222 (emphasis in original).

        It fell upon the Stanley Court, then, to address the consequences of

counsel’s failure to request a Thompson colloquy.           For four reasons, the

Court rejected the concept that the failure to request the colloquy

represented prejudice per se:       1) Thompson is silent on the appropriate

remedy; 2) the Pennsylvania Supreme Court rejected claims of prejudice per

se where counsel was alleged to be ineffective for failing to ensure that the

instruction was provided in Thompson, 674 A.2d at 222, and Howard, 645

A.2d at 1308, and instead demanded utilization of a particularized finding of

prejudice in accordance with the three–pronged ineffectiveness test; 3) the

Thompson Court ruled that prejudice was not presumed when counsel fails

to request a colloquy; and 4) the Supreme Court proclaimed rules of per se

prejudice in other cases. See, e.g., Commonwealth v. Mikell, 729 A.2d

566, 571 (Pa. 1999) (stating that counsel’s inexplicable failure to request

alibi   instruction   constituted   constitutionally   ineffective   assistance   of

counsel);2 Commonwealth v. Persinger, 615 A.2d 1305, 1308 (Pa. 1992)



2
      Later, in Commonwealth v. Hawkins, 894 A.2d 716 (Pa. 2006), the
Pennsylvania Supreme Court reviewed its prior decisions on the alibi
instruction and observed that those cases have been misinterpreted. The
Court explained that failure to request the instruction is not per se

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(counsel’s failure to file motion to withdraw guilty plea when defendant was

not informed that his sentences could be imposed consecutively caused

manifest injustice).   Stanley, 830 A.2d at 1026.         Reasoning that if the

failure to request the underlying instruction is not prejudicial per se, then a

failure to request a colloquy with respect to waiver of the instruction also

cannot constitute prejudice per se, the Stanley Court held that the standard

three-part ineffectiveness test should govern the analysis and remanded for

the trial court to make an individualized finding on the prejudice prong. Id.

at 1027.

      In the instant case, Appellant contends that he was denied his state

and federal constitutional rights when the trial court failed to give the jury

the no–adverse–inference instruction after Appellant specifically indicated

that he wanted the instruction.        He further argues that there was no

reasonable basis for trial counsel’s failure to object to the trial court’s

omission of the instruction in its jury charge. Finally, Appellant urges that

he can demonstrate prejudice resulting from trial counsel’s actions.

      In rejecting Appellant’s post–conviction claim that counsel was

ineffective for failing to object to the trial court’s deficient jury instruction,

the PCRA court reiterated the pertinent section of the trial court’s charge to

the jury:



ineffectiveness. Instead, “competent counsel may waive an alibi instruction
where counsel has a reasonable basis for doing so.” Id. at 717.

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     You will start with the presumption of innocence. That’s the first
     fundamental. The defendant is presumed to be innocent and the
     mere fact that he was arrested and charged with a crime is not
     evidence of guilt[]. A defendant is presumed to remain innocent
     throughout the trial unless and until you conclude, based on a
     careful and impartial consideration of the evidence, that the
     Commonwealth has proved him guilty beyond a reasonable
     doubt. It is not the Defendant’s burden to prove that he is
     innocent. Instead, the Commonwealth always has the burden of
     proving each and every element of the crimes charged and that
     the defendant is guilty of that crime that you are considering
     beyond a reasonable doubt. A person accused of [a] crime is
     not required to present any evidence or prove anything in his
     own defense.      If the evidence presented fails to meet the
     Commonwealth’s burden, then your verdict must be not guilty.
     On the other hand, if the evidence does prove beyond a
     reasonable doubt that this defendant is guilty, then your verdict
     as to that particular crime must be guilty. N.T. 4/16/2003 @
     115–116.

PCRA Court Opinion, 3/19/14, at 5.

     The PCRA court then explained why the trial court’s instructions to the

jury did not represent an abuse of discretion and why trial counsel’s

corresponding failure to object to the charge did not constitute ineffective

representation:

            In the case sub judice, the trial court instructed the jury
     that Appellant was not required nor expected to present any
     evidence, and that included Appellant testifying in defense. The
     trial court reiterated further that it was not Appellant[‛]s burden
     to prove his innocence. The instructions give[n to] the jury were
     sufficient and within the trial court’s broad discretion and present
     an accurate statement of the law. There was no abuse of
     discretion.

           Trial counsel will not be deemed ineffective for failing to
     pursue a meritless objection to the trial court’s jury instructions
     and he is presumed effective until Appellant proves otherwise.
     Appellant failed to meet this burden.


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            Moreover, Appellant failed to prove that, but for the
      alleged omission of trial counsel, the outcome of the proceedings
      would have been different, i.e., prejudice. Appellant was not
      prejudiced by the cited act of omission.          Error was not
      committed.

Id. at 5–6.

      Unlike the PCRA court, we find arguable merit in Appellant’s underlying

claim that he was denied his constitutional rights. While the PCRA court and

the Commonwealth posit that the trial court’s charge to the jury, as a whole,

explained that Appellant was not expected to present any evidence or prove

his innocence, Lewis explicitly rejected the concept that less specific

instructions secure a defendant’s constitutional guarantee to remain silent at

trial without adverse consequence:

      The entire premise underlying our requirement of the “no-
      adverse-inference” charge to the jury, under Article I, Section 9,
      is that the trial judge is vested with an obligation to protect the
      defendant’s right to remain silent, free from the insidious danger
      of adverse inference presented by a jury left free to wander in
      speculation. Experience teaches us that the very exercise of an
      individual’s right not to testify, under Article I, Section 9, may
      endanger that right if the jury is left free to draw negative
      inferences from the defendant’s decision to exercise his or her
      constitutional privilege.    The trial court, being in a unique
      position to protect a defendant’s constitutionally secured right
      through the jury charge, is the only bulwark to ensure that the
      exercise of a fundamental right does not turn into an act of
      constitutional suicide. Having determined in this Commonwealth
      that a “no-adverse-inference” charge is necessary to secure the
      guarantees of Article I, Section 9, the judge has either given the
      charge or he has not. Make-shift substitutes will not suffice.
      Juries must be told in no uncertain terms that no adverse
      inference may be drawn from a defendant’s failure to take the
      stand; otherwise, we are left to mere guesswork as to the
      meaning juries have ascribed to tangentially related words of the


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        court. In the instant case, it is undisputed that the trial judge
        failed to give the “no-adverse-inference” charge, after being
        timely requested to do so by counsel for defendant. Under Article
        1, Section 9, a constitutional violation has occurred.

Lewis, 598 A.2d at 980 (emphasis in original) (footnotes omitted).

        Nor, as urged by the Commonwealth, was the trial court’s error in

omitting the instruction cured by the voir dire and defense counsel’s closing

argument.       Apparently during voir dire prospective jurors were asked

whether a defendant’s decision to remain silent would influence their

assessment of Appellant’s guilt.3     Then, in his closing argument, defense

counsel reminded the jury of Appellant’s presumed innocence:

        There was, in fact, the juror who said that he was not able to
        stay with us because he was concerned about when a defendant
        on trial doesn’t get up on that witness stand and explain himself
        or present his side of the story. Well, ladies and gentlemen of
        the jury, his Honor will instruct you that [defendant] is presumed
        innocent, that he doesn’t have to do anything and the
        Commonwealth still has the burden of proof beyond a reasonable
        doubt and unless they overcome that burden, you must find him
        not guilty.

N.T. 4/16/03, 96–97.

        Following the principles enunciated in Lewis, the Commonwealth

cannot present a patchwork quilt of comments to the jury and contend that,

stitched together, they were sufficient to safeguard the concept embodied

within the no-adverse-inference instruction.     The case law teaches instead

that once the instruction is requested, the trial court must emphatically



3
    The voir dire notes of testimony were not included in the appellate record.

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include it in its charge to the jury.     Accordingly, trial counsel’s failure to

object to the trial court’s instruction was error and would satisfy the

requirement that Appellant present a claim of arguable merit.               As for a

possible reasonable basis for the trial counsel’s failure to object to the

instruction, we render no opinion in the absence of an evidentiary hearing.

“The reasonableness of an attorney’s strategic or tactical decisionmaking is a

matter that we usually consider only where evidence has been taken on that

point.” Commonwealth v. duPont, 860 A.2d 525, 533 (Pa. Super. 2004)

(citing Commonwelath v. Di Nicola, 751 A.2d 197, 202 (Pa. Super.

2000)).

      The   conclusion   that   Appellant’s     claim    may     be   meritorious    is

inconsequential, however, because Appellant has failed to establish the

prejudice component of the ineffective assistance           of counsel test.        We

conclude, after review, and in agreement with the PCRA court, that even if a

no–adverse–inference     instruction   was      given,   there   is   no   reasonable

probability that the outcome of the proceedings would have been different.

      Appellant insists that he can demonstrate prejudice because the

evidence of his guilt was not overwhelming. His defense at trial was that he

did not commit the crimes, and he presented no witnesses on his behalf.

Appellant surmises that this is a situation where the jury might expect to

hear from the defendant, and there is a corresponding viable risk that the

jury would draw an adverse inference from Appellant’s failure to testify.


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      We disagree with Appellant’s categorization of the evidence as

underwhelming. While circumstantial, convincing evidence gleaned from the

detailed factual recital in Commonwealth v. Perez, 76 EDA 2007, and our

independent review of the record, reveal that Appellant killed the victim.

      On the evening of the murder, Shakira Morse, the victim’s sister,

testified that Appellant twice went to the victim’s house, and the victim left

the residence shortly after Appellant’s second visit.   Appellant, the victim,

and Levaughn Nesbitt sat in an abandoned car and smoked marijuana.

Nesbitt testified that Appellant pulled out a black gun and stated that “he

was going to use it.” N.T., 4/15/03, at 108. An eyewitness, Ismael Roman,

heard a gunshot, then observed Appellant fire two shots. Id. at 69–73. The

police recovered a shell casing in the front passenger seat of the abandoned

car where Appellant had been sitting and where the body of the victim was

discovered. Two other casings and a gun were found in the vacant lot near

the abandoned automobile.     Id. at 35–37.    Another police officer heard a

commotion at Appellant’s grandmother’s house and observed Appellant

walking down the stairs with a “large wound on his head.” Id. at 135–136.

When Appellant was eventually stopped by the police, he repeatedly

exclaimed, “Oh God, please forgive me for what I did.” Id. at 152.

      In light of this compelling evidence, we conclude that, even if a no–

adverse–inference instruction was given, there was no realistic likelihood

that the jury would have reached a not guilty verdict.     Because Appellant


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cannot prove the required prejudice, trial counsel’s failure to object to the

incomplete      instruction        cannot   be    deemed       ineffective   representation.

Charleston, 94 A.3d at 1019.

      Appellant’s second allegation of ineffectiveness concerns trial counsel’s

failure to request the trial court to instruct the jury that prior consistent

statements are not substantive evidence.                      Under Pennsylvania Rule of

Evidence 613(c), consistent statements of a witness are admissible in order

to rebut an express or implied charge of fabrication, bias, improper influence

or motive, or faulty memory, or a prior inconsistent statement which the

witness has denied or explained. Pa.R.E. 613(c)(1), (2).                          The prior

consistent     statement      is    received     only   for    rehabilitation   and   not   as

substantive evidence.         Commonwealth v. Busanet, 54 A.3d 35, 66 (Pa.

2012),      cert.   denied,    134      S.Ct.     178    (2013);      Commonwealth          v.

Baumhammers, 960 A.2d 59, 89 (Pa. 2008).

      The ineffectiveness claim here arises in the context of the testimonies

of Nesbitt and Morse concerning Nesbitt’s direct trial testimony that he

witnessed Appellant pull out a gun while he, the victim, and Appellant were

in the abandoned car. On cross–examination, Nesbitt admitted that he did

not tell police that Appellant had drawn a gun when Nesbitt was interviewed

after the crime. Nesbitt stated that he withheld the gun information initially

because he “didn’t want to be a snitch and [he] was afraid [he] might get in

trouble.”     N.T., 4/15/03, at 118.              In response to this testimony, the


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Commonwealth attempted to elicit evidence from Morse that Nesbitt told her

the day after the shooting that he had seen Appellant with a gun.           Id. at

127–128.      Defense counsel objected, arguing that the testimony was

inadmissible in the absence of an allegation of prior fabrication.        The trial

court overruled the objection and allowed Morse’s testimony because it

believed that Nesbitt’s cross–examination demonstrated a tendency towards

recent fabrication. Id. at 128. The trial court, however, did not explain to

the   jury   that   Morse’s   statement   was   admissible   only   for   Nesbitt’s

rehabilitation and not as substantive evidence.     As with his silence on the

court’s omission of the no–adverse–inference instruction, trial counsel did

not object to the court’s failure to explain the limited evidentiary purpose of

Morse’s recollection of Nesbitt’s prior consistent statement.

      In denying Appellant’s ineffectiveness claim in this regard, the PCRA

court determined as follows:

      Appellant has failed to meet his burden of proof.             Here,
      Leva[ug]hn Nesbitt testified at trial that he observed Appellant in
      possession of a gun while seated in the abandoned station
      wagon. It was in the province of the jury to weigh Nesbitt’s
      testimony with his admission that he had not initially provided
      police with that information. The evidence presented here was
      more than sufficient to sustain the jury’s verdict that Appellant is
      guilty of these crimes and it is unreasonable to conclude that the
      jury would have come to a different outcome but for the
      omission of the consistent statement jury instruction. Error was
      not committed.

PCRA Court Opinion, 3/19/14, at 6–7.




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         Appellant   takes   issue   with    the    PCRA’s   court   dismissal   of   the

significance of Nesbitt’s testimony.          He counters that Nesbitt’s statement

that he witnessed Appellant with a gun on the night of the murder and

uttered an intention to use it was so damning that it was essential that the

jury understand that his prior consistent statement about Appellant’s gun

possession could not be considered substantive evidence.

         While Appellant again presents a claim of arguable merit, we concur

with the PCRA court’s determination that it is not reasonably probable that

the jury would have reached a not guilty verdict but for the omission of the

consistent statement jury instruction.             Although trial counsel should have

objected to the trial court’s failure to instruct the jury on the circumscribed

rehabilitative nature of Morse’s testimony, see Busanet, 54 A.3d at 66, we

conclude that Appellant cannot demonstrate the requisite prejudice arising

from this action. We have already decided that significant evidence supports

Appellant’s conviction.      Additionally, even if the jury had understood that

Nesbitt’s earlier statement was not substantive evidence, there was no

limitation on its consideration of Nesbitt’s trial testimony that Appellant

brandished a gun on the night the crimes occurred as direct evidence of his

guilt.    The prior consistent statement was thereby cumulative of properly

admitted evidence, and counsel cannot be deemed ineffective for failure to

object to the missing instruction.          See duPont, 860 A.2d at 535 (opining




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that defendant cannot prove prejudice where challenged evidence was

cumulative of properly admitted evidence).

      Appellant’s inability to demonstrate that he was prejudiced by

counsel’s alleged ineffectiveness is fatal to his claims. For this reason, we

agree with the PCRA court’s ruling that Appellant is not entitled to post–

conviction relief, and the order denying same will be affirmed.

      Order affirmed.

      Judge Bowes joins the Opinion.

      Judge Ott Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2014




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