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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                         Appellant

                    v.

KAHHIM ODOM

                         Appellee                   No. 3348 EDA 2018


          Appeal from the PCRA Order Entered November 9, 2018
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0002652-2012

BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.:                            FILED MAY 11, 2020

     The Commonwealth appeals from an order granting a new trial to

Appellee, Kahhim Odom, under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. Odom is presently serving a life sentence for first-

degree murder and other offenses. The PCRA court held that defense counsel

provided ineffective assistance by opening the door for the Commonwealth to

cross-examine a key defense witness, Dominique Evans, about his prior

juvenile adjudication that did not involve crimes of dishonesty.        The

Commonwealth argues that evidence of Evans’ adjudication did not prejudice

Appellee, because other evidence undermined Evans’ credibility and there was

ample evidence of Appellee’s guilt. We vacate the order awarding Appellee a

new trial and reinstate his judgment of sentence.

     Appellee and co-defendant Benderick Sterns were charged with

murdering Rymeek Horton on November 27, 2011 on the corner of Malcolm
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and Frazier Streets in Southwest Philadelphia.      The following evidence is

available for review.1 The murder stemmed from a fight between Appellee

and Horton one week earlier in which Appellee dislocated Horton’s shoulder.

N.T. 4/9/13, at 151-53; 4/12/13, at 82-83, 116-17.        On the night of the

murder, Horton smoked marijuana with Ramil Andrews and two brothers,

Omar and Amir Jones, in front of Omar and Amir’s grandmother’s house on

the corner of Malcolm and Frazier Street. Vance Bradley, another friend from

the neighborhood, also smoked with the group that evening. All of Horton’s

companions became witnesses to his death. N.T. 4/9/13, at 154-56; 4/12/13,

at 83-88.

       When the group ran out of marijuana, Horton and Omar decided to walk

down Frazier Street in the direction away from Whitby Avenue to get more.

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1  We refrain from including certain evidence in our review in light of
information provided by the Commonwealth in its appellate brief.

Specifically, prior to trial, the police obtained signed statements from several
persons—Amir Jones, Omar Jones, Stephon Brandon, and Paula Sharp—
implicating Appellee in the murder. During trial, these witnesses testified
inconsistently with their pretrial statements, so the Commonwealth introduced
their statements as substantive evidence under Pa.R.E. 803.1.

In the present appeal, the Commonwealth has informed us that several police
detectives and officers involved in the murder investigation are now under
investigation by the Philadelphia District Attorney’s Office’s Conviction
Integrity Unit. Commonwealth’s Brief at 18 n.5. Therefore, in its brief, the
Commonwealth “abstained from relying on any statements made to detectives
by witnesses who provided testimony at trial that was inconsistent with their
prior statements. This includes portions of Omar Jones, Amir Jones, Paula
Sharp, and Stephon Brandon’s statements.”          Id.   We commend the
Commonwealth for taking this step, and we too, will exclude these pretrial
statements from our review.

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As they walked, Horton turned around and headed back toward Malcolm

Street. Earlier that evening, Horton had asked his uncle to keep the door

unlocked, and he wanted to make sure it was, in fact, unlocked. N.T. 4/9/13,

at 154-56; 4/15/13, at 77-80.     Suddenly, two hooded men coming from

Whitby Avenue ran toward Horton and shot him. The first shooter, wearing a

dark hoodie, fired from the pavement. The other shooter wore a grey hoodie

and ran into the middle of the street to shoot. At first, the second shooter’s

gun jammed, and Omar heard it clicking. The shooter “racked” the gun and

shot Horton in the back, and Horton fell to the ground. Omar took off running

down Malcolm Street toward 57th Street. N.T. 4/12/13, at 83-88, 98-102.

      While Horton and Omar were on their way to obtain marijuana, Amir

and Andrews planned to go to a Chinese store around the block. Before they

left, however, Amir saw the two killers run down Frazier Street and shoot

Horton. He saw a shooter in a dark hoodie on the pavement, while another

shooter in a grey hoodie moved into the middle of the street. The second

shooter’s gun jammed, and Amir watched him clear the chamber before

resuming shooting. After the initial shots, Amir ran, but as he looked back he

saw the shooter in the grey hoodie stand over Horton and shoot him in the

face four times, killing him. N.T. 4/10/13, at 207-19.

      Bradley had gone inside his house on Frazier Street when the shooting

started. Upon hearing gunshots, he dropped down and crawled to the door.

Through an opening in the door, he saw Horton on the ground in the middle

of the street.   He observed co-defendant Sterns walk toward Horton, lean

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over, and fire four shots into his head, which caused it to jerk each time.

Appellee Odom stood a few feet behind Sterns.        Bradley saw Stems’ face

through his hoodie, and saw Appellee’s face when his hood came down as he

ran away. N.T. 4/9/13, at 141-44, 154-72.

      Jeffrey Taylor, who lived on the 5600 block of Whitby Avenue, arrived

at home and parked his car between Malcolm Street and Whitby Avenue on

Frazier Street. N.T. 4/10/13 at 62, 64. As he walked down Frazier Street and

then down Whitby Avenue, he saw two men get out of a white Chevrolet

Impala parked on Whitby Avenue near Frazier Street. Id. at 65-66. One wore

a gray hoodie, the other a dark hoodie.     Id. at 68. The two men walked

toward the intersection of Malcolm and Frazier Streets. Id. at 66. Taylor

continued walking home but then heard gunshots from the direction of that

intersection. Id. at 69. He looked back toward the sound of the gunshots

and saw the same two men run back with guns in hand, get in the car, and

drive off. Id. at 70. Taylor got into his car and parked it in the middle of the

street near Whitby and Frazier to preserve the scene and block traffic.

      The police found fired cartridge casings and an unfired cartridge near

Horton’s body in the middle of the street, where Omar and Amir Jones had

seen Stern rack his gun. Ballistic evidence demonstrated that at least two

guns were used in the murder.       N.T. 4/9/13, at 76; 4/10/13, at 62-72;

4/12/13, at 153-56, 209-15.

      Police obtained arrest warrants for Appellee and Sterns. When initial

attempts to arrest them proved unsuccessful, the detective assigned to the

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case turned the warrants over to the fugitive squad, which found Appellee a

month later at his grandmother’s house in a different section of Philadelphia.

N.T. 4/15/13, at 54-59. Sterns was arrested at his girlfriend’s residence. Id.

      As trial neared, multiple prosecution witnesses, including Bradley and

Omar Jones, faced intimidation. Bradley was arrested on unrelated charges

in September of 2012 and spent time at Curran-Fromhold Correctional Facility

while he awaited trial. Some of the inmates discovered that he had given a

statement in this case and tried to attack him, necessitating his transfer to

another county prison. N.T. 4/9/13, at 245-46; 4/10/13, at 45. When Omar

was subpoenaed, he told detectives that he was worried he was going to be

killed for testifying.   While he waited to testify on the day of Appellee’s

preliminary hearing, three of Appellee’s friends, including Appellee’s future

alibi witness Dominique Evans, surrounded Omar in the courtroom.          Police

took the three outside, but they again surrounded Omar when he walked into

the hallway. A few months after Omar’s testimony, his family was celebrating

Mother’s Day at his grandmother’s house. Someone opened fire on the house,

striking his grandfather once and another family member five times.        N.T.

4/12/13, at 123-27, 135-37; 4/15/13, at 17-31; 4/16/13, at 33-36, 61-64.

      During trial, Bradley testified that Appellee was one of the shooters,

testimony that was consistent with his pretrial statement to the police. N.T.

4/9/13, at 156-72, 185-92; 4/10/13, at 25-42, 45.

      Evans testified for Appellee as an alibi witness and claimed that Appellee

was with him the night of the murder, two blocks away from where Horton

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was shot. Evans stated that he walked with Appellee to Malcolm and Frazier

Streets after hearing the shots. N.T. 4/16/13, at 19-23. However, Officer

Torin Saunders, who responded to the shooting, testified that Evans walked

by the crime scene alone three times while talking on a cell phone. Id. at

210-11.

      When the prosecutor asked why he did not promptly tell police that

Appellee could not have been involved in the murder, Evans claimed that he

did not know he could walk into a police station and provide information that

way, and that he had never been in a detective’s office before. When probed

further, Evans admitted that this was a lie. Months earlier, Evans had walked

unprompted into Detective Richard Antonini’s office to provide an alibi for

another friend, Rashan Gaffney, in a different shooting. Id. at 42-56.

      The prosecutor asked Evans about his interactions with Omar Jones at

the preliminary hearing. Evans denied being near Omar that day, testimony

that conflicted with the accounts of events provided by Omar and Officer

Saunders. N.T. 4/12/13, at 121-32; 4/15/13, at 17-32; 4/16/13, at 33-36,

61-64. In addition, Evans admitted that he composed rap lyrics characterizing

himself as willing to kill people who crossed him, especially people who talked

to police.   The lyrics stated (1) “they niggas snitchin’.    Niggas acting like

bitches, these bitches acting like niggas till their family is missing;” (2) he

would “call a pistol” on the snitches, and then “slide through with the pistol[,]”

make sure “no bullets miss[ed them]. Make [their] homies forget [them].


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[With their] DNA on the tissue;” and (3) “probation had [him] bitchin’, [in a]

room full of bitches[.]” N.T. 4/16/13, at 77-80, 93-97.

        On redirect, Appellee’s attorney tried to rehabilitate Evans by asking him

whether he had any gun or robbery convictions. Evans claimed that he did

not.    On recross, the prosecutor introduced evidence that Evans had been

adjudicated delinquent for carrying a gun without a license and possessing a

controlled substance with the intent to deliver it. Evans explained that he

thought those adjudications had been expunged, and therefore no longer

counted. Id. at 103-08.

        During closing argument, defense counsel argued that Evans testified

that he had no convictions because his adjudication had been expunged, and

“in his mind,” expungement meant that the adjudication never happened.

N.T. 4/16/13, at 261. The Commonwealth did not mention Evans’ adjudication

during its own closing. Id. at 297-350.

        At the conclusion of an eight-day trial, the jury found Appellee guilty of

first-degree murder, conspiracy to commit murder, carrying a gun without a

license, carrying a gun on the streets of Philadelphia, and possessing an

instrument of crime.2 The court sentenced Appellee to life in prison. Appellee

appealed and objected, inter alia, to the prosecutor’s failure to turn over notes

of a police detective’s interview with Appellee’s alibi witness, Evans. The trial



____________________________________________


2   18 Pa.C.S.A. §§ 2502, 903, 6106, 6108, and 907, respectively.

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court issued a Pa.R.A.P. 1925 opinion stating, “When compared to the

overwhelming evidence presented by the prosecutor, the notes were not

material.” Trial Court Opinion, 12/6/13, at 14. This Court affirmed on direct

appeal, and our Supreme Court denied Appellee’s petition for allowance of

appeal.

      Appellee filed a timely PCRA petition raising an evidentiary claim and

various claims of ineffective assistance of counsel. The PCRA court (the same

judge who presided over trial) appointed PCRA counsel, who filed a no-merit

letter and moved to withdraw.       Appellee responded with new claims of

ineffective assistance of counsel, including an allegation that defense counsel

provided ineffective assistance at trial by opening the door to evidence of

Evans’s prior adjudications. PCRA counsel filed a revised no-merit letter. The

PCRA court ordered an evidentiary hearing relating to the admission of Evans’

prior adjudications and denied all other claims.

      At the evidentiary hearing, defense counsel testified that she discussed

Appellee’s alibi defense with Evans before trial, and he assured her that his

only issues involved a dependency matter for skipping school as a juvenile.

She admitted, however, that she did not have a copy of Evans’ criminal extract

and failed to ask the prosecutor for one. She was surprised when Evans’ prior

adjudications came to light at trial. N.T. 9/20/18, at 7-8, 13-16.

      The PCRA court granted Appellee’s petition and ordered a new trial. The

Commonwealth timely appealed.       The PCRA court issued a Pa.R.A.P. 1925


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opinion reasoning that Appellee’s claim of ineffective assistance had merit,

and that defense counsel acted unreasonably.

     [Appellee’s] alibi defense theory lived or died on the testimony,
     and credibility, of Evans. A reasonable jury may have concluded
     that the Commonwealth’s attack on Evans’ rap lyrics and skills did
     not translate to his actual conduct in life; music is expression, not
     a statement of fact, and Evans explained that to the prosecutor.
     N.T. 4/16/13 at 93-97.        However, when [defense counsel]
     attempted to bolster Evans’ credibility by mistakenly seeking to
     elicit testimony as to his never having been arrested, she opened
     the door to testimony pertaining to juvenile adjudications that the
     Commonwealth had not attempted to pursue because they were
     not crimen falsi and would have been inadmissible. She further
     complicated things by asking him directly if he had any charges
     for firearms.

     [When defense counsel] heard the prosecutor question Evans
     about the lyrics in his rap, no reasonable attorney would have
     continued with asking the witness if he had ever been arrested
     unless she knew this to be an unimpeachable fact. Instead,
     counsel should have asked to see the Court at sidebar and should
     have asked the Court what evidence the prosecutor had regarding
     convictions for her witness. This would have prevented her from
     broadening the extent of his impeachment.

PCRA Court Opinion, 3/13/19, at 8. In contrast to her prior conclusion that

the Commonwealth’s evidence was “overwhelming,” Trial Court Opinion,

12/6/13, at 14, the PCRA court stated that “[t]he Commonwealth’s case was

not strong,” PCRA Court Opinion, at 8, so the evidence of Evans’ prior

adjudications prejudiced Appellee.

     Identifications of [Appellee] as one of the men who shot decedent
     had been made by two witnesses who had been smoking
     marijuana at the time, both of whom claimed he was coerced by
     the police, and both of whom had a long-term, personal
     relationship with decedent.       Weighed against this evidence,
     [Appellee’s] alibi defense would more likely have been successful.
     However, when trial counsel for [Appellee] opened the door to

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      Evans’ impeachment, her ineffectiveness undercut that defense
      and prejudiced him.

Id.

      The Commonwealth raises a single issue in this appeal: “Did the PCRA

court erroneously conclude that trial counsel prejudiced [Appellee’s] trial by

opening the door to evidence of his alibi witness’s prior juvenile adjudication

when that witness had already been exposed as a liar and a manipulator?”

Commonwealth’s Brief at 4.

      When reviewing a PCRA order, we examine whether the record supports

the PCRA court’s factual findings and whether its legal conclusions are free

from error. Commonwealth v. Hannibal, 156 A.3d 197, 206 (Pa. 2016).

We view the PCRA court’s findings and evidence of record in the light most

favorable to the prevailing party. Commonwealth v. Koehler, 36 A.3d 121,

131 (Pa. 2012). The PCRA court’s credibility determinations, when supported

by the record, are binding, but we review the PCRA court’s legal conclusions

de novo.   Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013). The

petitioner has the burden of persuading us that the PCRA court erred and that

such error requires relief. Commonwealth v. Wholaver, 177 A.3d 136, 144-

45 (Pa. 2018).

      A petitioner may obtain relief under the PCRA by pleading and proving

“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.”       42 Pa.C.S.A.

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§ 9543(a)(2)(ii).   Counsel’s effectiveness is presumed, and the petitioner

bears the burden of proving otherwise. Commonwealth v. Urwin, 219 A.3d

167, 172 (Pa. Super. 2019).          To establish ineffectiveness of counsel, the

petitioner must plead and prove: (1) his underlying legal claim has arguable

merit; (2) counsel’s actions lacked any reasonable basis; and (3) counsel’s

actions prejudiced him.     Id.      Failure to satisfy any of these three prongs

requires dismissal of the claim. Id.

      We limit our analysis to examining only the issue of prejudice, as the

Commonwealth does not contend in its appellate brief that Appellee’s

argument lacks merit or that defense counsel’s actions were reasonable.

      The Commonwealth argues that Appellee cannot demonstrate prejudice

from the admission of evidence of Evans’ adjudication. To establish prejudice,

a PCRA petitioner must demonstrate that “counsel’s chosen course of action

had an adverse effect on the outcome of the proceedings.” Commonwealth

v. Chambers, 807 A.2d 872, 883 (Pa. 2002). “The defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Id.   “[A] speculative or attenuated possibility of a different outcome,”

however,   “is   insufficient   to   undermine    confidence   in   the   outcome.”

Commonwealth v. Jones, 210 A.3d 1014, 1019 (Pa. 2019) (citing




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Harrington v. Richter, 562 U.S. 86, 112 (2011) (“The likelihood of a

different result must be substantial, not just conceivable”)).

       We review the PCRA court’s determination of prejudice de novo, because

it concerns a question of law—whether the evidence satisfies the legal

standard of prejudice—instead of a question of fact. Hannibal, 156 A.3d at

206.   In our estimation, the admission of Evans’ juvenile adjudication for

carrying a weapon and possession with intent to deliver a controlled substance

was not so serious an error as to deprive Appellee of a fair trial or undermine

confidence in the outcome.

       In a dramatic departure from her position on direct appeal that the

evidence    was   “overwhelming,”    the      PCRA   court   declared   that   the

Commonwealth’s evidence was “not strong,” because two eyewitnesses, Omar

and Amir Jones, had been smoking marijuana at the time of the murder and

claimed that police coerced their pretrial statements accusing Appellee of the

murder. PCRA Ct. Op. at 8. As a result, the PCRA court ruled, Evans’ alibi

testimony would likely have been successful had defense counsel not opened

the door for Evans’ prior adjudication. Id. We disagree for several reasons.

       First, the Commonwealth presented substantial evidence of Appellee’s

guilt that the PCRA court overlooked. Appellee had a motive to kill Horton

because the two were on bad terms. They had a fight one week before the

shooting in which Appellee dislocated Horton’s shoulder. Vance Bradley gave

damning testimony that he observed Appellee and Sterns, both in hoodies,


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approach Horton and murder him in cold blood. Bradley never wavered from

this testimony even though inmates at his correctional facility, where he was

incarcerated on unrelated charges, attempted to attack him after discovering

that he had given a statement in this case. Other facts corroborated Bradley’s

testimony. Ballistics evidence demonstrated that two guns were used in the

murder. While we do not consider the pretrial statements of Omar and Amir

Jones3, we do take into account their trial testimony, in which they both said

that two men wearing hoodies shot Horton. Furthermore, Jeffrey Taylor, who

lived near the scene of the crime, testified that he saw two men wearing

hoodies exit a car and walk toward Malcolm and Frazier Streets. He heard

shots from the direction of that intersection and then saw the same two men

run back, guns in hand, enter the car and drive away.

        Not only did the Commonwealth furnish considerable evidence of guilt,

but it also rebutted Evans’ alibi testimony with the factual testimony of Officer

Saunders and other evidence that damaged Evans’ credibility. Evans stated

that at the time of the shooting, he was with Appellee two blocks away, and

he walked with Appellee to the scene of the shooting after hearing the shots.

Officer Saunders testified, however, that Evans was talking on a cell phone

that night and walking alone.          Moreover, the Commonwealth brought out

credibility problems with Evans’ testimony that were unrelated to his



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3   See n. 1, supra.

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adjudication. Evans testified that he delayed in reporting his alibi for Appellee

because he had never been in a detective’s office before and did not realize

he could enter a police station and provide alibis for defendants.            The

Commonwealth showed that this was a lie by forcing Evans to admit on cross-

examination that he once walked into a detective’s office to provide an alibi

for another person in a different shooting.           The Commonwealth also

demonstrated that (1) Evans and others surrounded Omar Jones when Jones

came to court to testify against Appellee, and (2) Evans glorified violence

against Commonwealth witnesses by composing rap lyrics in which he

portrayed himself as willing to kill people who talked to police. Evans’ lie about

his delay in reporting the alibi, his conduct toward Omar, and his rap lyrics

extolling violence against snitches were at least as damaging to his credibility

as his juvenile adjudication, if not more so, yet the PCRA court failed to take

these facts into account.    Finally, and notably, the Commonwealth did not

mention Evans’ adjudication once during its closing argument.

      Based on the substantial evidence of Appellee’s guilt, Evans’ lack of

credibility, and the lack of importance of Evans’ juvenile adjudication in the

overall context of Appellee’s lengthy trial, we hold that the admission of Evans’

adjudication does not undermine our confidence in the outcome of Appellee’s

trial. There is no reasonable probability that, absent counsel’s misstep, the

result of the proceeding would have been different. We hold that the PCRA

court erred by determining that the introduction of this adjudication prejudiced


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Appellee. See Commonwealth v. Bishop, 936 A.2d 1136, 1141 (Pa. Super.

2007) (defense counsel did not provide ineffective assistance in rape case

despite initiating questions concerning FBI investigation as to whether

appellant was serial rapist and murderer; there was “no reasonable probability

that the outcome of the trial would have been different” due to other

compelling evidence against appellant).         We vacate the order granting

Appellee a new trial and remand for reinstatement of his judgment of

sentence.

      Order vacated.      Case remanded for reinstatement of judgment of

sentence. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/20




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