J-S22014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TORRENCE JUDE MCCARTHY                     :
                                               :
                       Appellant               :   No. 1259 MDA 2019

               Appeal from the PCRA Order Entered July 1, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0004216-2005


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                       FILED: JUNE 8, 2020

        Appellant, Torrence Jude McCarthy, appeals from the order entered on

July 1, 2019, dismissing his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. 9541-9546. Upon review, we affirm.

        A prior panel of this Court briefly summarized the facts of this case as

follows:

        In the case sub judice, the Commonwealth presented the
        testimony of a number of witnesses, including Derick Brice, who
        detailed the events and circumstances surrounding the May 27,
        2005 shooting of [Jared] Enos. Brice explained that, after taking
        a bus from Philadelphia to Harrisburg on the day in question, he
        was picked up at the bus station by Mays, who was driving a green
        Kia Sportage, and Appellant. On their way to the apartment that
        Brice and his mother shared, the men saw Enos. Upon observing
        Enos, Appellant remarked, “There goes the pussy right there.”
        Brice explained that, during the time in question, there existed
        discord between two groups of individuals; one group consisted of
        Appellant and Mays, and the other consisted of Enos and some of
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S22014-20


     his friends. Appellant allegedly informed Brice that one (1) or two
     (2) weeks prior, Enos or one (1) of his colleagues had fired
     gunshots into the Kia.

     Brice testified that, in response to Appellant’s comment regarding
     Enos, Brice stated, “Let’s keep going.” When questioned by
     Commonwealth counsel as to why he uttered this statement, Brice
     explained, “Because I knew it was a beef, and I knew we could
     have been in danger at that point in time.”

     The men arrived at Brice’s apartment, at which time Brice spoke
     to his mother, dropped his bag off, and left in her Chrysler
     Concord. He proceeded to a service station and was followed by
     Appellant and Mays, who had remained in the Kia. Following a
     stop at a Wendy’s restaurant, the three (3) men went to the
     apartment building of Appellant and Mays, where Mays parked the
     Kia. Mays entered Appellant’s vehicle and sat in the front
     passenger seat, and Appellant entered approximately two (2) to
     three (3) minutes later and sat in the rear passenger seat.

     Brice testified that when Appellant entered the vehicle, he stated,
     “Let’s go around the block. I want to see something.” Brice
     proceeded around the block onto Briggs Street with his headlights
     turned off until Mays tapped his hand and stated, “Hold up.” Brice
     brought the vehicle to a stop near a group of people on the street,
     at which time Appellant fired a number of gunshots out the rear
     passenger window. Brice sped away from the scene and was
     directed to an alleyway by Appellant. Appellant exited the vehicle
     and returned one (1) to two (2) minutes later. As Brice drove the
     men away from the area toward his and his mother’s apartment,
     Appellant stated, “I hope I hit one of the motherfuckers. I hope I
     hit one of the motherfuckers.” After passing an ambulance, Brice
     uttered, “Somebody hit, somebody got hit back there.”

     The Commonwealth also presented the testimony of Linn Mosley,
     Jr., who resided on Briggs Street during the time in question and
     testified as to circumstances surrounding the shooting of Enos.
     Mosley stated that earlier on the evening of May 27, 2005, he
     heard a verbal exchange between Cameron Howard, Mays, and
     Appellant on Briggs Street. Howard was speaking to Mays, who
     was seated in the driver’s seat of the Kia Sportage, and Appellant,
     who was seated in the front passenger’s seat. Mosley heard
     Howard tell the men, “Cut the beef out, end what’s going on.”
     Howard added that Enos was returning to the area and wanted to



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      talk. One of the vehicle’s occupants replied, “Fuck that. We’ll be
      back.”

      At approximately 11:30 p.m. that evening, Mosley was on the
      porch of his home on Briggs Street, and Enos and two (2) men
      were standing in the street. Mosley observed a vehicle slowly
      coasting down the street with its headlights off. Fearing that
      something was going to transpire, Mosley yelled, “Get down.” He
      then heard three (3) to five (5) gunshots fired from what he
      described as a blue Intrepid or Concord. At the time, he observed
      “fire” coming from a gun on the passenger side of the vehicle. The
      vehicle sped through a stop sign and out of sight.

      Harrisburg Police Officer Tyron Meik responded to the scene of the
      shooting and found Enos lying on the ground and unresponsive.
      Enos was transported by ambulance to a hospital, where he died
      several days later. Dr. Wayne Ross performed an autopsy on the
      body of Enos and determined that the cause of death was a
      gunshot wound to the head.

      Detective Brandon Kunkel of the Harrisburg City Police Forensic
      Technology and Identification Unit testified that testing was
      conducted on a handgun recovered from a “brushy area” near the
      crime scene. The handgun was found inside a blue glove. Jeffrey
      Zachetti, a forensic DNA analyst with the Pennsylvania State
      Police, stated that a DNA match was made with DNA found on the
      glove with a blood sample from Appellant.

Commonwealth v. McCarthy, 970 A.2d 472 (Pa. Super. 2009) (unpublished

memorandum) (internal footnotes and record citations omitted).

      Local police, working in conjunction with the U.S. Marshall Service, later

apprehended Appellant and Mays together in Tampa, Florida in July 2005. The

men were attempting to obtain money wired anonymously to a check cashing

service provider. The arresting officer described the appearance of Appellant

and Mays as “unkept, soiled[,]” and “[b]asically like [men] who ha[d] been

living on the run.” The officer further testified that Appellant told Mays not to

say anything. See N.T., 8/9/2006, at 140-145.

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        In August 2006, following a joint trial with co-defendant Mays, a jury

convicted Appellant of first-degree murder, criminal conspiracy, carrying a

firearm without a license, and four counts of recklessly endangering another

person.1 On August 21, 2006, the trial court sentenced Appellant to a term

of life imprisonment for first-degree murder and concurrent one to two year

terms of incarceration on each of the remaining six convictions. Appellant did

not file a direct appeal. On May 23, 2007, Appellant filed a PCRA petition and

the trial court reinstated Appellant’s right to file a direct appeal nunc pro tunc.

On January 31, 2008, Appellant filed a notice of appeal nunc pro tunc. We

affirmed Appellant’s judgment of sentence on February 20, 2009.               See

Commonwealth v. McCarthy, 970 A.2d 472 (Pa. Super. 2009) (unpublished

memorandum). Our Supreme Court denied further review on September 16,

2009. See Commonwealth v. McCarthy, 980 A.2d 606 (Pa. 2009).

        On December 15, 2010, Appellant filed a pro se PCRA petition.

Thereafter, the PCRA court granted Appellant multiple continuances to obtain

counsel.     Appellant retained private counsel who filed an amended PCRA

petition on December 19, 2018. On February 21, 2019, the PCRA court held

an evidentiary hearing. Appellant and the Commonwealth subsequently filed

supporting briefs with the PCRA court. On July 1, 2019, the PCRA court filed




____________________________________________


1   18 Pa.C.S.A. §§ 2501, 903, 6106, and 2705, respectively.



                                           -4-
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an order and accompanying opinion dismissing Appellant’s amended PCRA

petition and denying Appellant relief. This timely appeal resulted. 2

       On appeal, Appellant presents the following issues3 for our review:

       1. Did the PCRA court err with respect to the City Gas and Diesel
          tapes and the ineffectiveness claims related thereto?

       2. Did the [PCRA] court err by denying Appellant's claim that prior
          counsel should have impeached Brice with [cellular telephone]
          records?

       3. Did the [PCRA] court err by denying Appellant's claim that prior
          counsel was ineffective for introducing evidence of Appellant's
          prior bad acts by way of an arraignment sheet for an unrelated
          criminal matter?

       4. Did the [PCRA] court err by denying Appellant's claim that prior
          counsel was ineffective for failing to object to the
          Commonwealth's impeachment of one witness with another
          witness's statement, where that statement was consistent and
          not admitted as substantive evidence?

Appellant’s Brief at 2.

____________________________________________


2 Appellant filed a notice of appeal on July 26, 2019. On July 31, 2019, the
PCRA court directed Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P 1925(b). Appellant complied timely. On
August 28, 2019, the PCRA court filed an opinion pursuant to Pa.R.A.P.
1925(a), relying upon its earlier decision entered on July 1, 2009.

3  Appellant presented three additional claims in his amended PCRA petition
that he withdrew at the PCRA hearing. See PCRA Court Opinion, 7/1/2019,
at 4 n.1. He does not present those issues on appeal. Moreover, Appellant
presented another ineffective assistance claim pertaining to jury issues in his
Rule 1925(b) statement. The trial court addressed that issue in its Rule
1925(a) opinion. Appellant, however, has neither presented nor developed
that claim on appeal and, therefore, we find it waived. See Commonwealth
v. Heggins, 809 A.2d 908, 912 (Pa. Super. 2002) (“an issue identified on
appeal but not developed in the appellant's brief is abandoned and, therefore,
waived”).

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      All four of Appellant’s claims challenge the effectiveness of counsel’s

performance at trial.     Accordingly, we employ the following standard of

review:

      Our standard of review from the denial of post-conviction relief is
      limited to examining whether the PCRA court's determination is
      supported by the evidence of record and whether it is free of legal
      error.

                           *            *            *

      A PCRA petitioner will only prevail on a claim that trial counsel was
      ineffective through pleading and proving each of the following: (1)
      the underlying legal claim is of arguable merit; (2) counsel's action
      or inaction lacked any objectively reasonable basis designed to
      effectuate his client's interest; and (3) prejudice, to the effect that
      there was a reasonable probability of a different outcome if not
      for counsel's error. A failure to plead or prove any prong will defeat
      an ineffectiveness claim. Further:

          A PCRA petitioner will be granted relief only when he proves,
          by a preponderance of the evidence, that his conviction or
          sentence resulted from the 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.

      Counsel is presumed to be effective and the burden of
      demonstrating ineffectiveness rests on [the] appellant.
      Additionally, counsel is not ineffective for failing to raise a claim
      that is devoid of merit.

Commonwealth v. Ligon, 206 A.3d 515, 519 (Pa. Super. 2019) (internal

citations, quotations, and original brackets omitted).




                                       -6-
J-S22014-20



       In his first claim presented, Appellant asserts that trial counsel was

ineffective for failing to procure video surveillance from a gas station called

City Gas and Diesel.4 Appellant’s Brief at 22-32. More specifically, he claims:

       Detective [Victor] Rivera memorialized in his investigative report
       that he collected surveillance tapes from City Gas and Diesel.
       Appellant maintains that this footage would have shown him
       present at that location at a time which would have made it
       impossible for him to have participated in the instant homicide.
       Nevertheless, at trial, Detective Rivera claimed that he never
       collected the footage. These circumstances are indicative of either
       a Brady[5] violation that went unobjected to by trial counsel; or
       an instance of trial counsel's ineffectiveness for failing to impeach
       Detective Rivera with his own report.

Id. at 22-23.

       Our Supreme Court previously determined:

       To demonstrate a Brady violation, Appellant must show that: (1)
       the prosecution concealed evidence; (2) which was either
       exculpatory evidence or impeachment evidence favorable to him;
       and (3) he was prejudiced by the concealment.           To show
       prejudice, he must demonstrate a reasonable probability that, had
       the evidence been disclosed to the defense, the result of the
       proceeding would have been different. A reasonable probability
____________________________________________


4  We note that, at trial, the court admitted surveillance video from an Exxon
gas station offered by the Commonwealth. At trial, Appellant testified that he
left the Exxon station with Mays and Brice and the three men went to an
apartment Appellant shared with Mays. Appellant testified that the three men
subsequently went to the City Gas and Diesel in Brice’s blue car. At City Gas
and Diesel, Appellant claimed he got out of Brice’s car and into another vehicle
that was white. Thus, Appellant asserts that City Gas and Diesel surveillance
video would have discredited Brice’s testimony that Appellant was present at
the scene of the murder. Appellant’s Brief at 29.

5Brady v. Maryland, 373 U.S. 83 (1963) (U.S. Supreme Court held that a
defendant has a federal constitutional right to receive material exculpatory
evidence in the possession of the prosecution).


                                           -7-
J-S22014-20


      for these purposes is one which undermines confidence in the
      outcome of the trial.

      Furthermore, [] Brady evidence may not be cumulative of other
      evidence, cannot have been equally available to the defense, and
      cannot have been discoverable through the exercise of reasonable
      diligence.

Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013) (internal citations

and quotations omitted). Moreover, “[t]he withheld evidence must have been

in   the   exclusive   control   of   the    prosecution   at   the   time   of   trial.”

Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012).


      In this case, the PCRA court determined:

      [Appellant] proffered that the video in question would show
      [Appellant], Brice, and Mays in Brice’s blue car on May 27, 2005,
      between approximately 11:15 [p.m.] and 11:30 p.m., and would
      also show Mays entering the convenience store at City Gas and
      Diesel, and then show the men leaving westward towards 15th
      Street. [Appellant] claims he would use it to contradict Brice’s
      trial testimony. Surveillance video from an Exxon gas station was
      played to the jury showing the men at that Exxon station at 11:07
      p.m., and the evidence then established that they had traveled to
      Wendy’s, not another gas station (i.e., City Gas and Diesel).

      At the PCRA hearing, [Appellant] testified that after leaving the
      Exxon station, the three men went to May’s apartment and then
      to City Gas and Diesel to pick up a tobacco product that the Exxon
      station did not carry. He stated from there he got out of Brice’s
      car and into a white Ford, drove around for a bit, went back to
      City Gas and Diesel to get gas, and drove the white car back to its
      owner in West Hanover Township (mid-Eastern area of Dauphin
      County). This is contrary to Brice’s trial testimony that the men
      went from the Exxon to May’s apartment to Briggs Street.

      [Trial counsel,] Attorney [Paul J.] Kovatch also testified at the
      PCRA hearing. He stated that his trial strategy was to elicit
      evidence to show that Brice was the shooter, not [Appellant].
      When asked about the City Gas and Diesel video, Attorney
      Kovatch recalled a discussion with [Appellant] about it. When
      asked if he requested that video prior to trial, Attorney Kovatch

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J-S22014-20


      said he believed he did. He recalls sending an investigator to
      speak with whoever was in charge of the video at the time, but
      also testified that there was a very good chance that he was
      confusing it with the Exxon video. Attorney Kovatch was asked if
      he recalled testimony from Detective Rivera that he asked for
      tapes from City Gas and Diesel but there were none. He was also
      asked why he did not object to Detective Rivera’s trial testimony
      that Detective Rivera stated there was no video from City Gas and
      Diesel even though it was indicated in his report. Attorney
      Kovatch responded that if the detective was testifying to evidence
      [the defense did not] have, then he obviously would have made
      an objection to it, but he couldn’t recall the video issue and
      whether they had it or did not have it.

      In light of the foregoing, [the trial court determined Appellant]
      failed to prove the actual existence of the City Gas and Diesel
      video. Assuming there [was] such a video, it was equally
      accessible to [Appellant], as he could have obtained his own copy
      from the gas station. [Appellant] has also failed to prove that
      such video was in the Commonwealth’s possession, as the
      detective testified at trial that he did not obtain video from the
      gas station. In light of these circumstances, there was clearly no
      Brady violation. Additionally, even assuming the existence of the
      City Gas and Diesel video, the trial record shows that such
      evidence would not compel a different verdict, given the
      overwhelming nature of evidence supporting [Appellant’s]
      conviction. Even if there were arguable merit and no reasonable
      basis for counsel’s alleged failure to demand production of the
      alleged City Gas and Diesel video, there was no prejudice to
      [Appellant].

PCRA Court Opinion, 7/1/2019, at 6-7 (record citations and footnote omitted).

      Upon review, we agree with the PCRA court’s assessment. Under the

PCRA, Appellant has the duty to plead and prove his entitlement to relief and

he has not done so. There is simply no evidence of exculpatory surveillance

video from City Gas and Diesel as Appellant has baldly alleged. Since there is

no proof of the purported surveillance tape, it could not be in the exclusive

control of the Commonwealth.      Hence, there was no violation of the rule


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established in Brady.        Moreover, while Detective Rivera’s testimony and

investigative report about the existence of a City Gas and Diesel surveillance

tape appear contradictory, Appellant has not demonstrated prejudice for

failing to cross-examine the detective on the issue, in an effort to impeach his

credibility. Appellant has not shown that there was a reasonable probability

that the result of the proceeding would have been different.              Here, as we

previously noted on direct appeal, and as Appellant currently concedes, police

recovered the murder weapon the day after the crime, near the crime scene,

and wrapped in a glove containing Appellant’s DNA. See Appellant’s Brief at

8. Thus, even assuming that Appellant was at City Gas and Diesel before the

murder as he alleged, the physical evidence shows his presence at the scene

and belies his claim that the proffered, but unsubstantiated, surveillance video

was exculpatory. Accordingly, there is no merit to Appellant’s first claim of

trial counsel ineffectiveness.

       Next, Appellant claims that trial counsel was ineffective for failing to

“impeach     Brice    with   [Appellant’s      cellular   telephone]   records,   which

contradicted [Brice’s] trial testimony that after the shooting, Appellant was

repeatedly calling his voicemail.”6 Appellant’s Brief at 32. Appellant claims

____________________________________________


6   More specifically, Appellant contends:

       Brice testified that following the shooting, they went back to his
       apartment, where Appellant refused to answer phone calls, played
       voicemail messages left by police, and made several phone calls.



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the PCRA court erred by finding such proffered evidence constituted a

collateral matter to the central issue at trial, the identity of the shooter. Id.

at 32-33. Appellant posits:

       Whether Appellant was avoiding [tele]phone calls from law
       enforcement immediately after the shooting had a direct bearing
       on his guilt or innocence because it was one of the few pieces of
       evidence that went toward his intent that night. As such, it was
       material whether Appellant was with Brice after the shooting,
       because that would tend to show whether he was with Brice during
       the shooting and if immediately after the shooting he was acting
       in a manner consistent with guilt.

Id. at 34.

       On this issue, the PCRA court determined:

       Whether or not [Appellant] answered his phone after shooting
       Enos is collateral to the central issue of the actual identity of the
       shooter. Attorney Kovatch testified at the PCRA hearing that he
       impeached Brice on many of his inconsistencies, including that
       Brice admitted to lying in his first statement [to police]. [Attorney
       Kovatch] agreed that Brice's credibility was a [significant] issue in
       his case. Attorney Kovatch testified that he did not recall having
       [Appellant’s telephone] records before trial, but if he had them
       and did not introduce them, it would have been "some sort of
____________________________________________


       Brice testified that Appellant left his apartment around 1 or 2 a.m.
       However, Appellant's cellphone records, that were introduced at
       the evidentiary in this matter, show that between 11:42 p.m. and
       1:43 a.m.[,] Appellant answered [nine] incoming calls and made
       [three] outgoing calls, and further indicate that Appellant did not
       check his voicemail messages until 3:48 a.m. This is directly
       contrary to Brice's trial testimony, and does not serve merely to
       impeach him, but tends to exculpate Appellant and disproves
       Brice's version of events. Whether Appellant was avoiding phone
       calls from law enforcement immediately after the shooting had a
       direct bearing on his guilt or innocence because it was one of the
       few pieces of evidence that went toward his intent that night.

Appellant’s Brief at 34 (record citations omitted).


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J-S22014-20


      strategy regarding the numbers themselves....[and] we didn't
      want to introduce the calls that were coming in because it may
      have had other consequences in the trial." [N.T. PCRA Hearing,
      2/21/2019, at 16]. Given the fact that Brice's credibility had
      already been impeached, along with the overwhelming evidence
      against [Appellant], [the PCRA court found] this claim of
      ineffective assistance [] without merit.

PCRA Court Opinion, 7/1/2019, at 8-9.

      Upon review, we agree that Appellant is not entitled to relief on his claim

that trial counsel was ineffective for failing to impeach Brice with Appellant’s

cellular telephone records.    Again, Appellant has failed to show that the

outcome of trial would have been different if trial counsel had taken the

suggested course of action.     Hence, Appellant has not shown that he was

prejudiced. The record shows that Appellant fled with co-defendant Mays.

Appellant concedes, and the record clearly shows, that police apprehended

both men together in Tampa, Florida months after Enos’ shooting and that

they appeared “unkept,” “soiled,” and “[likely to] be on the run.”          See

Appellant’s Brief at 9; see also N.T., 8/9/2006, at 140-145. Such evidence

overwhelmingly supported an inference of Appellant’s consciousness of guilt,

separate and apart from additional confrontation of Brice with Appellant’s

cellular telephone records. See Commonwealth v. Laird, 988 A.2d 618,

627 (Pa. 2010) (indicating that flight and concealment can constitute

circumstantial proof of consciousness of guilt). Accordingly, Appellant is not

entitled to relief on his second claim.




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       In his third issue presented on appeal, Appellant claims that trial counsel

was ineffective in eliciting certain prior bad acts testimony from Detective

Rivera, the lead investigator in Pennsylvania. Appellant’s Brief at 36-38. The

premise of Appellant’s claim is that trial counsel contravened Pa.R.E. 404(b).

More specifically, Appellant contends that trial counsel improperly elicited trial

testimony7 from the investigating detective regarding an arraignment sheet

recovered from Appellant’s apartment approximately one month after the

shooting but before apprehending Appellant in Florida. The document directed

Appellant to appear for a scheduled, criminal proceeding in an unrelated

matter. Id. Although Appellant does not question counsel’s strategy in using

the document to establish Appellant’s presence at a particular location at a

particular time, Appellant nonetheless claims that trial counsel “should have

sought to redact the arraignment sheet, to merely indicate Appellant had a


____________________________________________


7 We note that this case presents a somewhat novel ineffective assistance of
counsel claim. Generally, ineffective assistance claims are raised where prior
bad acts evidence subject to challenge under Pa.R.E. 404(b) has been
admitted at trial without objection from defense counsel. As such, the cases
examining ineffective assistance claims pertaining to Rule 404(b) consist
primarily of claims that trial counsel improperly failed to object to efforts by
the Commonwealth to introduce prior bad act evidence or that counsel failed
to request a limiting jury instruction. Here, Appellant does not argue that the
Commonwealth improperly introduced Rule 404(b) evidence. He claims
instead that trial counsel affirmatively offered prior acts evidence that was
subject to exclusion under Rule 404(b). Despite the unconventional nature of
Appellant’s claim, however, as discussed at length below, our Supreme Court
has determined that a PCRA petitioner asserting ineffective assistance always
carries the burden to show that trial counsel's chosen course of action had no
reasonable basis designed to effectuate his client's interests. See
Commonwealth v. Chmiel, 889 A.2d 501 (Pa. 2005), citing Pa.R.E. 404(b).

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court date of an undisclosed nature” and that such failure prejudiced him

because “he lost the presumption of innocence when the jury heard he had

other unrelated criminal charges.” Id. at 38. Accordingly, Appellant posits

the PCRA court erred by “holding that the reference was ‘at most, a fleeting

reference to criminal activity,’ and that such an incident did not prejudice

Appellant.” Id. at 36.

     Our Supreme Court has held:

     Evidence of prior bad acts is inadmissible to prove character or to
     show conduct in conformity with that character. Commonwealth
     v. Busanet, 54 A.3d 35, 60 (Pa. 2012); Commonwealth v.
     Sherwood, 982 A.2d 483, 497 (Pa. 2009); Pa.R.E. 404(a)(1).
     Such evidence is, however, admissible when offered to prove
     some other relevant fact, such as motive, opportunity, intent,
     preparation, plan, knowledge, identity, or absence of mistake or
     accident. Commonwealth v. Chmiel, 889 A.2d 501, 534 (Pa.
     2005); Pa.R.E. 404(b)(2).

     [Our Supreme Court has] also recognized that prior bad acts
     evidence may be admissible as res gestae when relevant to furnish
     the complete story or context of events surrounding the crime.
     See Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006)
     (“[The Pennsylvania Supreme] Court has recognized exceptions
     to Rule 404, for which evidence of other crimes may be
     introduced, including the res gestae exception which allows ‘the
     complete story’ to be told.” (citing Commonwealth v. Paddy,
     800 A.2d 294, 308 (Pa. 2002))); Commonwealth v. Lark, 543
     A.2d 491, 497 (Pa. 1988) (“evidence of other crimes may be
     relevant and admissible [ ] where such evidence was part of the
     chain or sequence of events which became part of the history of
     the case and formed part of the natural development of the
     facts.”). See also Commonwealth v. Spruill, 391 A.2d 1048,
     1050 (Pa. 1978) (recognizing that there are exceptions to the rule
     that reference to prior bad acts is error “where there is a
     legitimate basis for the introduction of the evidence other than a
     mere attempt to establish the accused's predisposition to commit
     the crime charged.”).



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     However, while evidence of prior bad acts may be relevant and
     admissible, there is the “potential for misunderstanding on the
     part of the jury when this type of evidence is admitted.”
     Commonwealth v. Claypool, 495 A.2d 176, 179 (Pa. 1985).
     This evidence must, therefore, “be accompanied by a cautionary
     instruction which fully and carefully explains to the jury the limited
     purpose for which that evidence has been admitted.” Id. In the
     context of an ineffectiveness claim, counsel's failure to request a
     cautionary instruction regarding evidence of other crimes or prior
     bad acts does not constitute per se ineffectiveness; “[r]ather, in
     order to obtain relief under such a claim, a defendant must still
     satisfy each of the three prongs of the test for ineffective
     assistance of counsel.” Commonwealth v. Buehl, 658 A.2d 771,
     778 (Pa. 1995) (plurality). With regard to the reasonable basis
     prong of this test, it is incumbent on the petitioner to demonstrate
     that counsel's chosen course of action had no reasonable basis
     designed to effectuate his client's interests. See, e.g., Chmiel,
     889 A.2d at 547 (holding that based on trial counsel's PCRA
     testimony, counsel had a reasonable basis for declining to request
     a limiting instruction). When the petitioner is granted a PCRA
     hearing, it is his burden to satisfy this aspect of the test with direct
     questioning of trial counsel. See Commonwealth v. Koehler,
     36 A.3d 121, 146 (Pa. 2012) (faulting a PCRA petitioner for
     declining to question trial counsel at the PCRA hearing about the
     lack of a strategic basis for failing to object).

Commonwealth v. Weiss, 81 A.3d 767, 798–799 (Pa. 2013).

     The PCRA court concluded:

     At the PCRA hearing, it was [trial counsel’s] recollection that the
     arraignment sheet was introduced to show [Appellant’s] presence
     in [Harrisburg] at the time, and that [Appellant] did appear for
     court. [Trial counsel] also testified that there was no reference to
     the underlying charge itself.

                           *            *            *

     Here, the claimed error was, at most, a fleeting reference to
     criminal activity. The line of questioning at issue had nothing to
     do with [Appellant’s] criminal history. There is simply nothing in
     this isolated incident at trial that was so prejudicial as to require
     a new trial. It follows that [trial counsel] did not render ineffective
     assistance to [Appellant].

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PCRA Court Opinion, 7/1/2019, at 9.

      Finally, in his brief to this Court, Appellant admits:

      Here, despite the Commonwealth's contention that Appellant fled
      following the shooting, there was evidence that investigating
      detectives knew Appellant had a court date for another matter in
      the jurisdiction approximately a month after the shooting, via an
      arraignment sheet recovered from his apartment. Appellant
      ultimately returned to the jurisdiction to attend this court date.
      Appellant's return to the jurisdiction tends to negate the
      Commonwealth's evidence of flight as consciousness of guilt.

Appellant’s Brief at 37.

      Taken all together and upon review of the certified record, we conclude

that the PCRA court did not err in denying Appellant relief on his ineffective

assistance of counsel claim related to Rule 404(b). Here, evidence that police

recovered an unrelated criminal arraignment document from Appellant’s

apartment was part of the chain or sequence of events which became part of

the history of the case and formed part of the natural facts under the res

gestae exception to Rule 404(b).      Detective Rivera testified regarding his

general investigation efforts in this case. He testified that once he recovered

an arraignment sheet from Appellant’s apartment, he knew that Appellant was

required to appear for court on a certain date, so Detective Rivera sent officers

to the Dauphin County Courthouse to look for Appellant on that day. N.T.,

8/10/2006, at 145-146. Moreover, the brief reference did not mention

particular criminal charges pending against Appellant. Obviously, trial counsel

did not seek to establish Appellant’s predisposition to commit crime by eliciting

testimony regarding Appellant’s presence at the unrelated arraignment.


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Instead, trial counsel offered the arraignment form to establish Appellant’s

presence in Harrisburg, Pennsylvania after the shooting, but before his

apprehension in Florida, in order to negate the Commonwealth's evidence of

flight as consciousness of Appellant’s guilt. As such, counsel had a legitimate

basis for the introduction of the evidence, as well as a reasonable strategy for

eliciting testimony regarding Appellant’s unrelated criminal proceeding. For

these reasons, Appellant is not entitled to relief on his third issue.8

       Finally, Appellant claims that trial counsel was ineffective for “failing to

object to the Commonwealth's impeachment of one witness with another

witness's statement[.]” Appellant’s Brief at 2. To provide context, Appellant

explains:

       In the instant matter, [Commonwealth witness, Cameron] Howard
       told police that after he told [Mays and Appellant] to talk to [Enos]
       and to work their problems out, there was no response from [Mays
       and Appellant] inside the car. This was consistent with [Mr.
       Howard’s] trial testimony. N.T., 8/9/2006 at 30-34. However,
       the Commonwealth impeached Mr. Howard with a statement that
       Linn [Mosely, Jr.] gave to police when [the Commonwealth] asked
       Mr. Howard, "When you told [Appellant] and Jeffrey Mays, Hey,
       you need to talk to [Enos] you need to squash this beef, you need
       to end this beef, they responded by saying, Fuck that. We'll be
       back. Isn't that true?" See N.T., 8/9/2006 at 33-34, 34-35. Mr.
____________________________________________


8   We note that upon review of the certified record, the trial court’s jury
instructions were not transcribed. As a result, we cannot verify whether the
trial court gave a cautionary instruction that fully and carefully explained to
the jury the limited purpose for the admission of that evidence. Nor can we
verify whether trial counsel requested one. Ostensibly, trial counsel would not
wish to highlight the brief admission of the prior act evidence. However, in
light of our discussion that trial counsel’s strategy was reasonable and the fact
that Appellant does not challenge trial counsel’s stewardship regarding jury
instructions, we need not review the instructions of the court.

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     Howard denied hearing that response from [Appellant] and
     testified consistent with his prior statement that he got no
     response from [Mays or Appellant]. Id. Mr. Howard never said,
     at any point, that [Mays or Appellant] said 'Fuck that. We'll be
     back.' - this was never Mr. Howard's statement for him to be
     impeached with. [Trial counsel] did not object to this improper
     impeachment.

Id. at 40-41.

     Accordingly, Appellant asserts:

     the [PCRA] court abused its discretion when it held Appellant's
     prior counsel was not ineffective for failing to object to Linn[
     Mosely, Jr.’s] inadmissible hearsay statement. When [Cameron]
     Howard was impeached with [Mosely’s] statement, [Mosely] had
     not testified yet and his statement was not admissible for
     anything. And, ultimately, [Mosely]'s testimony regarding the
     events earlier in the day was not inconsistent with his prior
     statement, and thus not admissible as substantive evidence.
     Thus, [Mosely’s] statement was not proper impeachment material
     for [] Howard, and served no purpose but to impermissibly bolster
     [Mosely’s] credibility and the Commonwealth's theory of the case.

Id. at 20-21.

     In support of his proposition, Appellant relies upon Commonwealth v.

Baez, 431 A.2d 909 (Pa. 1981), wherein our Supreme Court determined:

     The credibility of a witness may be impeached (1) by showing that
     on a prior occasion he made a statement, either oral or written,
     that is inconsistent with his present testimony; (2) by competent
     evidence tending to show bias, bad character for truth and
     honesty, or defects in memory, perception or capacity or (3) by
     the competent contradictory testimony of other witnesses whose
     version of the facts differs from that of the witness being
     impeached; Commonwealth v. Hamm, 378 A.2d 1219 (Pa.
     1976); McCormick, Evidence, s 33 at 66 (2d ed. 1972).

                         *             *        *

     [I]f contradictory testimony is not competent to be introduced as
     substantive evidence, then it equally cannot be used for



                                  - 18 -
J-S22014-20


       impeachment purposes. See Commonwealth v. Noble, 88 A.2d
       760 (Pa. 1952).

Baez, 431 A.2d at 912.

       The following testimony was elicited at trial. Although Mosely testified

after Howard at trial,9 Mosely stated that, on the day in question, he saw Mays

and Appellant together in a car speaking with Howard several hours before

the murder. N.T., 8/9/2006, at 77. Thereafter, the Commonwealth engaged

in the following exchange with Mosely:

       Q: What did you hear Cameron Howard tell Jeffrey Mays and
       [Appellant]?

       A: Cut the beef out, end what's going on. He was just along the
       lines of telling [them] to end whatever was going on. He told
       them [Enos] was coming back and they wanted to talk.

       Q: Cameron Howard wanted them to talk?

       A: Yes.

       Q: Did you hear any [response from inside car]?

       A: I heard, Fuck that. We'll be back.

       Q: Do you know who said that?

       A: No. I know it came out of the vehicle.

       Q: Other than the two defendants, did you see anyone else in the
       vehicle?

       A: No, I didn't.

       Q: Again, how far away are you from the vehicle?

       A: Not a full 25, 30 feet.

____________________________________________


9 Certainly, the Commonwealth could have recalled Howard after Mosely
testified, subject to the trial court’s approval. See Commonwealth v.
Crosby, 297 A.2d 114, 116–117 (Pa. 1972).

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J-S22014-20



Id. at 78.

      On cross-examination, the following exchange occurred between trial

counsel and Mosely:

      Q: Now you are testifying here today that you could or could not
      overhear the conversation between Cameron Howard and Jeffrey
      Mays?

      A: That I could or couldn’t?

      Q: Are you testifying today that you could or couldn’t?

      A: When you say as in could, you mean specific details; or when
      you say as I heard the conversation cut the beef, cut it out, you
      all need to end this and all of that?

      Q: But you have no idea really what the conversation was about,
      right? Correct? You don't know what they were talking about
      really, right?

      A: Until I heard Cameron tell [Mays] that [Enos] was coming
      back, and I heard, Fuck that. We'll be back.

Id. at 127.

      The PCRA court ultimately concluded:

      [T]he statement from Mosely was introduced as substantive
      evidence at trial, Mosely testified consistently at trial with the
      statement given to police – with which Howard was impeached.
      Thus, as Mosely's contradictory testimony was introduced as
      substantive evidence, the Commonwealth properly used it to
      impeach Howard. […] Moreover, any error in this regard would be
      considered harmless, given the evidence against [Appellant].

PCRA Court Opinion, 7/1/2019, at 11.

      We agree with the PCRA court. Here, there were two trial witnesses

who offered different versions of events. Mosely’s testimony was eventually

admitted as substantive evidence but only after the presentation of Howard’s


                                     - 20 -
J-S22014-20



testimony.    Because Mosely’s testimony contradicted Howard’s version of

events, Mosely’s testimony was properly used to impeach Howard. Although

the order in which the witnesses testified was perhaps unconventional, we see

no departure from the methods of impeachment approved by prior case law.

Moreover, Appellant has not demonstrated prejudice considering the other

evidence presented, including Brice’s testimony, Appellant’s DNA evidence,

and Appellant’s subsequent flight and concealment. Appellant is not entitled

to relief on this last claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/08/2020




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