J-S61019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
KAREEM HOGAN                           :
                                       :
                  Appellant            :   No. 1051 EDA 2017

                 Appeal from the PCRA Order March 2, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003016-2012


BEFORE:    LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                     FILED NOVEMBER 28, 2017

     Appellant Kareem Hogan appeals from the order entered March 2,

2017, denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     The pertinent facts and procedural history, as gleaned from our review

of the certified record, are as follows:    On October 27, 2011, police

responded to a radio call and found the victim lying on the sidewalk of

Westmoreland Street in Philadelphia.   They observed that the victim had

suffered multiple gunshot wounds, and they did not observe any weapon on

or near his person. The victim was transported to a nearby hospital where

he died.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       The victim’s shooting was witnessed by several people and, following

their investigation, the police arrested Appellant and Brandon Sanabria

(“Sanabria”).    At Appellant’s subsequent jury trial,1 many of the witnesses

gave testimony that was inconsistent with statements they had given to the

police. We previously described these inconsistencies as follows:

             On November 25, 2011, Johnny Walker gave a statement
       to police. Walker explained that he was walking in the area of
       Front and Westmoreland Streets when he heard yelling and saw
       [Appellant] and [Sanabria]. [The victim] and a friend were
       walking from Waterloo and Westmoreland Streets towards Hope
       Street. [The victim] said “there’s that bitch ass nigga right
       there.”     [Appellant] responded “[o]h, he [is] pulling.”
       [Appellant] and Sanabria pulled out their guns and started
       shooting at [the victim. The victim] said, “[t]hat’s all your bitch
       ass nigga got?”        [The victim] walked to Waterloo and
       Westmoreland Street and then fell on the sidewalk.

             The day after the murder, Sanabria showed Walker a silver
       gun and asked if he wanted to buy it. Walker refused. Walker
       also told the police that he always saw [Appellant] carrying a
       black .40-caliber firearm on his hip. At trial, Walker recanted,
       denying that [he] gave the answers in his statement.

              On November 26, 2011, Frederick Miller, [Appellant’s]
       [stepfather], gave a statement to police. In the statement,
       Miller explained that on the night of the murder, he was at home
       at 3335 Waterloo Street when he heard about seven gunshots.
       [Appellant] and Sanabria ran into the house and put guns on the
       floor. Miller told [Appellant] and Sanabria to leave and they did.
       Monte Hogan, Miller’s stepson, put the guns in a bag in the
____________________________________________


1 Sanabria, a juvenile at the time of the murder, entered a negotiated guilty
plea to third-degree murder, conspiracy, and a firearm violation on June 20,
2013. He was sentenced to an aggregate term of twenty-two and one-half
to forty-five years of imprisonment. See Commonwealth v. Sanabria, CP-
51-CR-0003017-2012.




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     corner. About two hours later, Sanabria called and informed
     Monte Hogan that he was sending a woman to retrieve the guns.
     A woman called Goida arrived and took the guns to Sanabria’s
     house.

            The next day, [Appellant] came to Miller’s house and told
     him that he had been walking with Sanabria on Westmoreland
     Street when he saw [the victim] walking with Edwin Laboy and
     Onehida Rodriguez. [The victim] told [Appellant], “there go
     those bitch niggas from Waterloo.” [The victim] was trying to
     reach for a weapon, so [Appellant] pulled out his .40-caliber and
     tried to shoot, but it jammed. Sanabria then pulled out his .25-
     caliber firearm and shot [the victim]. [Appellant] explained that
     the reason they were arguing with [the victim] was that Yaniz
     Estrada had a conflict with people from Mascher Street about
     selling PCP on Waterloo Street. [Appellant] and Sanabria didn’t
     want Estrada selling PCP on the block because they sold PCP on
     Mascher Street.

           At trial, although Miller confirmed that himself, [the
     victim], and Estrada sold PCP in the area of Waterloo and
     Westmoreland Streets, he denied that [Appellant] and Sanabria
     ran into hi[s] home with guns after the murder. Instead, he said
     that on the night of the murder after he heard gunshots he saw
     a group of people from Mascher and Mutter Streets yelling and
     running around.

           On November 26, 2011, Rafael Torres-Burgos gave a
     statement to police describing that on the night of the murder he
     was walking down Westmoreland Street to pick up his girlfriend
     when he heard arguing and yelling. Torres-Burgos heard about
     three gunshots and saw [Appellant] who was holding a gun and
     Sanabria running from Waterloo Street towards Howard and
     Hope Street.

           At trial, Torres-Burgos denied seeing [Appellant] and
     Sanabria shoot [the victim]. Torres-Burgos testified that he was
     in his home when he heard two to three gunshots. Torres-
     Burgos ran outside and saw [the victim] laying on the ground
     and two people he did not recognize running away.

           On November 27, 2011, Yaniz Estrada gave a statement to
     police. In the statement, Estrada explained that about two or
     three days before [the victim’s] murder she was on the 3300
     block of Waterloo Street when she was approached by
     [Appellant] and Sanabria. They asked Estrada if she was selling

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     drugs and told her that she needed to stop selling. Estrada told
     them she was not selling drugs and they walked away. On the
     day of the murder, at about 5:00 p.m., Estrada arrived on the
     3300 block of Waterloo Street. While she was in the area she
     said hello to [the victim] and then went home.

           At trial, Estrada confirmed that she was on the block on
     the day of the murder and said hello to [the victim]. Estrada
     denied that two days before the murder, [Appellant] and
     Sanabria had approached her. She also denied selling drugs at
     the time of the murder.

           On November 27, 2011, Edwin Laboy gave a statement to
     police. Laboy stated that on the night of the murder when it was
     just starting to get dark, Laboy ran into [the victim] near
     Westmoreland and Waterloo Streets. As he was talking to [the
     victim, Appellant] and Sanabria approached them.            Laboy
     started to walk away and heard four or five gunshots. Laboy
     saw [Appellant] and Sanabria run away. Laboy explained that
     [Appellant] and his friends had been selling PCP on the block and
     wanted rent money from Estrada, who was working with Miller
     and [the victim].

           At trial, Laboy confirmed that he had seen [the victim]
     near Westmoreland and Waterloo Streets shortly before [the
     victim] was murdered, but testified that he was on a different
     street when he heard about four or five gunshots. Laboy walked
     back to Westmoreland and Waterloo Streets and went to [the
     victim] who was shot and dying on the street. Laboy explained
     that a few days before [the victim’s] murder, . . . there was an
     argument because [the victim], Miller, and Estrada wanted to
     sell PCP on the block but [Appellant] did not want them to sell
     PCP without paying rent for it.

Commonwealth v. Hogan, 121 A.3d 1128, *3-6 (Pa. Super. 2015)

(unpublished memorandum) (footnote and citations omitted).

     Appellant did not testify.   On July 1, 2013, a jury convicted him of

third-degree murder, conspiracy, and a firearm violation.    On August 27,

2013, the trial court sentenced him to an aggregate term of twenty-six to

fifty-two years of imprisonment. Appellant timely appealed to this Court; we

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affirmed his judgment of sentence, and our Supreme Court denied his

petition for allocatur.    Hogan, supra, appeal denied, 124 A.3d 309 (Pa.

2015).

      On November 10, 2015, Appellant timely and pro se filed a PCRA

petition. The PCRA court appointed counsel, who filed an amended petition

on November 16, 2016. On January 17, 2017, the Commonwealth filed a

motion to dismiss. On February 2, 2017 the PCRA court issued Pa.R.Crim.P.

907 notice of its intent to dismiss the petition without a hearing. Appellant

did not file a response.    By order entered March 2, 2017, the PCRA court

dismissed Appellant’s PCRA petition.       This timely appeal follows.   Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issues:

      I.    Was Trial Counsel [i]neffective for failing to request a
            limiting instruction regarding evidence of [Appellant’s]
            involvement in drug-dealing?

      II.   Was Trial Counsel [i]neffective for failing to object and
            request a mistrial after the prosecutor elicited testimony
            that a portion of Edwin Laboy’s statement had been
            redacted pursuant to a defense objection?

Appellant’s Brief at 3.

      When examining a post-conviction court's grant or denial of relief, we

are limited to determining whether the court's findings were supported by

the record and whether the court's order is otherwise free of legal error.

Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We

will not disturb findings that are supported in the record.   Id.   The PCRA


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provides no absolute right to a hearing, and the post-conviction court may

elect to dismiss a petition after thoroughly reviewing the claims presented

and determining that they are utterly without support in the record. Id.

       Because Appellant’s claims challenge the stewardship of trial counsel,

we apply the following principles. The law presumes counsel has rendered

effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.

Super. 2010).       The burden of demonstrating ineffectiveness rests on

Appellant. Id. To satisfy this burden, Appellant must plead and prove by a

preponderance of the evidence that: “(1) his underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

       Appellant first claims that trial counsel was ineffective for failing to ask

for a limiting instruction regarding evidence of Appellant’s drug-dealing

activities.   According to Appellant, “[w]hile such evidence was arguably

admissible to establish the motive for the murder, trial counsel had no

reasonable basis for failing to request an instruction informing [the] jury that

such   evidence    could   only   be   considered   for   that   limited   purpose.”


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Appellant’s Brief at 8.   Appellant asserts that trial counsel’s “failure to

request such an instruction permitted the jury to consider this highly

prejudicial evidence for any possible reason, including the inference that

[he] was a bad person prone to illegal activity. As a result, but for counsel’s

omission, the outcome of the trial might have been different.” Id. at 8-9.

      The PCRA court found no merit to this claim, and explained as follows:

              This claim warrants no relief.    As the Commonwealth
      points out, evidence of [Appellant’s] drug dealing was properly
      admitted as it was part of the chain of events leading up to the
      murder. Commonwealth v. Petroll, 696 A.2d 817 (Pa. Super.
      1997); see also Pa.R.E. 404(b). Further, [Appellant] offered
      that he was involved in drugs as a motive for the [victim] to try
      to kill him. During closing arguments, trial counsel asserted that
      the [victim’s] motive to shoot [Appellant] was to overtake his
      drug territory.    This argument supported [Appellant’s] self-
      defense claim.

             Moreover, [Appellant] cannot show that had an instruction
      regarding drug activity been requested and given to the jury,
      there was a reasonable probability that the outcome of the trial
      would have been different.            In a similar claim in
      Commonwealth v. Cox, our Supreme Court denied relief and
      held that because of the overwhelming evidence against the
      defendant, including eyewitness testimony and a confession, it
      was not reasonably probable that a cautionary instruction about
      drugs would have altered the verdict. 983 A.2d 666 (Pa. 2009).
      Like Cox, there were multiple eyewitnesses to the instant
      murder, including Frederick Miller ([Appellant’s] stepfather), who
      saw [Appellant] and Sanabria run into his house immediately
      after the shooting and dispose of the guns. Further, [Appellant]
      confessed to Miller and told him that the shooting was over a
      drug turf war.         [Appellant’s] flight also demonstrated
      consciousness of guilt.

PCRA Court Opinion, 3/2/17, at 6-7 (footnotes omitted).




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      In general, evidence of uncharged crimes or prior bad acts is

inadmissible to demonstrate a defendant’s propensity to commit the crime

charged. Commonwealth v. Shull, 148 A.3d 820, 845 (Pa. Super. 2016).

Evidence of other crimes may be admitted, however, when such evidence is

part of the history of the case and forms part of the natural development of

the facts.    Commonwealth v. Richard, 150 A.3d 504, 510 (Pa. Super.

2016).

      Our careful review of the record supports the PCRA court’s conclusions

that evidence of drug dealing was properly admitted and that Appellant

cannot establish prejudice given the overwhelming evidence of guilt.       At

trial, evidence of drug dealing was pervasive—as to Appellant, the victim,

and even most of the witnesses whose trial testimony was summarized

above.       The evidence regarding Appellant’s involvement in drug dealing

was admissible to prove that he had a drug-related motive to kill the victim,

and as part of the sequence of events that formed the natural development

of the events. See, e.g., Commonwealth v. Malloy, 856 A.2d 767, 775-

76 (Pa. 2004) (holding evidence of the defendant’s drug activity admissible

to demonstrate motive for killing the victim).      Given these circumstances,

Appellant’s counsel cannot be found ineffective for failing to request the

limiting instruction. See Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.

Super. 2003) (en banc) (explaining that counsel cannot be deemed

ineffective for failing to pursue a meritless claim).


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       In his remaining claim, Appellant asserts that trial counsel was

ineffective for failing to object or request a mistrial after the Commonwealth

interrupted the direct testimony of a police detective regarding a statement

made by Walker. See Appellant’s Brief at 9.2

       As noted above, Walker’s trial testimony differed from the statement

he originally gave to police. On direct examination, Walker was extensively

asked about the contents of his prior statement by the prosecutor.          On

cross-examination, defense counsel also questioned Appellant regarding the

contents of his prior statement.          Later in the Commonwealth’s case, the

Commonwealth called Detective Phillip Nordo, who read, pursuant to Pa.R.E.

803.1(1), Walker’s prior inconsistent statement into the record.           The

prosecutor directed Detective Nordo to read both the question posed and

Walker’s response. During this reading, the following occurred:

            Question: Do you have any other information about this
       murder investigation.

              Answer –

       Q [BY THE PROSECUTOR:] I’m sorry, Detective. I don’t mean
       to interrupt. There was a defense motion for one part. I just
       want to make sure.

              THE COURT: You can approach him.


____________________________________________


2Our review of the trial transcript confirms the PCRA court’s statement that
Appellant mistakenly asserts that this incident involved Laboy’s statement.
See PCRA Court Opinion, 3/2/17, at 7 n.7.




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          [THE PROSECUTOR]:           Your Honor, pursuant to the
     defense motion, I just redacted one line.

           THE COURT: All right. You may proceed.

           THE WITNESS: The question was: Do you have any
     other information about this murder investigation?

            Answer: The day after the shooting, I talked to
     [Appellant’s] stepfather Fred. After I talked to Fred, I was in
     George’s store, and [Sanabria] came up to me and showed me a
     silver gun and asked me if I wanted to buy it for $200. I told
     him no. I always see [Appellant] carrying a black .40 on his hip.

N.T., 6/27/13, at 10-11.

     As explained by the trial court, “[t]he redacted line, which references

what Miller had told Walker about how the murder transpired, was redacted

after this Court found it [to be] inadmissible hearsay.” PCRA Court Opinion,

3/2/17, at 7; see N.T., 6/25/13, at 149-153.

     Appellant asserts that trial counsel had no reasonable basis for failing

to object and move for a mistrial because “the testimony improperly notified

the jury of the redaction and created the impression that [he] was hiding

something from the jury.”   Appellant’s Brief at 7.   According to Appellant,

the prosecutor’s comment was “clearly improper since it made it abundantly

clear that a redaction had occurred.” Appellant’s Brief at 9 (citing Gray v.

Maryland, 523 U.S. 185 (1998)).

     The PCRA court found no merit to Appellant’s claim, and again,

concluded that Appellant could not demonstrate prejudice:

           As the record clearly reflects, the Commonwealth was only
     indicating to this Court why she interrupted the witness and why
     she wished to approach the witness stand. Further trial counsel


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      had a reasonable basis for not objecting, as an objection would
      have underscored that a line in the statement might have been
      detrimental to [Appellant].

            Appellant also cannot demonstrate prejudice.               The
      contents of the redacted line were never revealed to the jury.
      Moreover, with several eyewitnesses to the murder, including a
      confession to Miller, it is unlikely that had trial counsel objected,
      there was a reasonable probability that the outcome of the trial
      would have been different. Finally, because a mistrial is an
      extreme remedy, there is no evidence that had trial counsel
      requested a mistrial, this Court would have granted one.

PCRA Court Opinion, 3/2/17, at 8 (citations omitted).

      Once again, our review of the certified record supports the PCRA

court’s conclusions. Initially, we note that Appellant’s reliance upon Gray,

supra, is inapposite as that case concerns an obvious reference to a

redacted statement by a non-testifying co-defendant pursuant to Bruton v.

United States, 391 U.S. 123 (1968).           Thus, the determination that such

references are so prejudicial that limiting instructions could not cure has no

application in Appellant’s case.

      Moreover, as this Court has stated:

      In criminal trials, the declaration of a mistrial serves to eliminate
      the negative effect wrought upon a defendant when prejudicial
      elements are injected into the case or otherwise discovered at
      trial. By nullifying the tainted process of the former trial and
      allowing a new trial to convene, declaration of a mistrial serves
      not only the defendant’s interests but, equally important, the
      public’s interest in fair trials designed to end in just judgments.
      Accordingly, the trial court is vested with discretion to grant a
      mistrial whenever the alleged prejudicial event may reasonably
      be said to deprive the defendant of a fair and impartial trial. In
      making its determination, the court must discern whether
      misconduct or prejudicial error actually occurred, and if so, . . .
      assess the degree of any resulting prejudice. Our review of the


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         resulting order is constrained to determining whether the court
         abused its discretion.


Commonwealth v. Hogentogler, 53 A.3d 886, 877-78 (Pa. Super. 2012),

appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). Here, the PCRA

court states that it would not have granted a motion for mistrial had trial

counsel so moved. Clearly, it would be in its discretion to do so.

         Finally, Appellant’s assertion that the jury could have inferred from the

prosecutor’s comments that he was “trying to hide something” is refuted by

our review of the trial transcripts. As noted above, both the prosecutor and

defense counsel questioned Appellant regarding the contents of his prior

statement.      Indeed, trial counsel’s failure to object to the prosecutor’s

actions actually inured to Appellant’s benefit, as it assured that the trial

court’s prior evidentiary ruling was adhered to by Detective Nordo.

         Thus, for all these reasons, Appellant’s second claim of ineffectiveness

fails.

         Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




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