J-A21029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 MALIK WOODS                                :
                                            :
                     Appellant              :   No. 3826 EDA 2017

               Appeal from the PCRA Order November 20, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004555-2010,
                            CP-51-CR-0006164-2010


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                         FILED SEPTEMBER 20, 2018

        Appellant, Malik Woods, appeals from the November 20, 2017 order

dismissing his first petition filed pursuant to the Post-Conviction Relief Act

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

        On December 12, 2009, Joseph Kelsey (“Kelsey”) purchased marijuana

from William Duval (“Duval”). Less than one hour later, Appellant and Kelsey,

who were both armed, confronted Duval about the drug transaction.              A

struggle ensued during which Duval was shot and killed.

        Appellant and Kelsey were jointly tried for Duval’s murder. During trial,

the jury heard a redacted version of Kelsey’s statement to police. In that

statement, Kelsey told police that Appellant shot Duval. At trial, however, all

references to Appellant were replaced with generic references to an “other

guy.”    On February 25, 2014, Appellant was convicted of second-degree
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murder,1 robbery,2 solicitation to commit murder,3 conspiracy to commit

robbery,4 carrying a firearm without a license,5 carrying a firearm on the

streets of Philadelphia,6 possessing an instrument of crime,7 and retaliating

against a witness.8 The trial court sentenced Appellant to an aggregate term

of life imprisonment without the possibility of parole. This Court affirmed the

judgment of sentence and our Supreme Court denied allowance of appeal.

Commonwealth v. Woods, 122 A.3d 1133, (Pa. Super. 2015) (unpublished

memorandum), appeal denied, 128 A.3d 1207 (Pa. 2015).

        On March 23, 2016, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition. On September 13, 2017, the PCRA

court issued notice of its intent to dismiss the petition without an evidentiary




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1   18 Pa.C.S.A. § 2502(b).

2   18 Pa.C.S.A. § 3701(a)(1)(i).

3   18 Pa.C.S.A. §§ 902, 2502.

4   18 Pa.C.S.A. §§ 903, 3701.

5   18 Pa.C.S.A. § 6106(a)(1).

6   18 Pa.C.S.A. § 6108.

7   18 Pa.C.S.A. § 907(a).

8   18 Pa.C.S.A. § 4953(a).



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hearing.    See Pa.R.Crim.P. 907.         On November 21, 2017, the PCRA court

dismissed the petition. This timely appeal followed.9

       Appellant presents two issues for our review:

    1. Did the PCRA Court          err in dismissing Appellant’s PCRA
       [p]etition without a hearing because trial counsel was ineffective
       for failing to file and litigate a motion in limine to exclude . . .
       [Kelsey’s statement] and for failing to object to its admission
       because it remained powerfully incriminating despite redaction?

    2. Did the PCRA Court err in dismissing Appellant’s PCRA [p]etition
       without a hearing because trial counsel was ineffective for failing
       to request a separate trial for Appellant?

Appellant’s Brief at 4.

       “When reviewing the denial of a PCRA petition, our standard of review

is limited to examining whether the PCRA court’s determination is supported

by evidence of record and whether it is free of legal error.” Commonwealth

v. Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018) (citation omitted). Both

of Appellant’s issues relate to his trial counsel’s alleged ineffectiveness.

       “[T]he Sixth Amendment to the United States Constitution and Article I,

[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective

counsel. This right is violated where counsel’s performance so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d

1194, 1197 (Pa. 2015) (cleaned up).            “Counsel is presumed to have been


____________________________________________


9Appellant and the PCRA court complied with Pennsylvania Rule of Appellate
Procedure 1925.

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effective.” Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super.

2017). To prevail on an ineffective assistance of counsel claim, a petitioner

must plead and prove 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 proceeding would have been different.” Commonwealth

v. Johnson, 179 A.3d 1153, 1158 (Pa. Super. 2018) (citation omitted). “A

petitioner’s failure to satisfy any prong of this test is fatal to the claim.”

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citation

omitted).

      In his first issue, Appellant argues that trial counsel was ineffective for

failing to file a motion to suppress Kelsey’s statement. According to Appellant,

Kelsey’s statement was inadmissible pursuant to Bruton v. United States,

391 U.S. 123 (1968) and its progeny. In Bruton, the Supreme Court of the

United States “held that a non-testifying co-defendant's confession implicating

another defendant in the charged offense is inadmissible against the

defendant because it violates his Sixth Amendment right to confront and to

cross-examine witnesses testifying against him.”          Commonwealth v.

Freeman, 128 A.3d 1231, 1239 n.3 (Pa. Super. 2015) (citation omitted).




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       “Following Bruton, the [Supreme Court of the United States] has

approved redaction and a limiting instruction as a means of eliminating the

possible spillover prejudice arising from the admission of a non-testifying

co-defendant’s confession against that co-defendant at a joint trial.”

Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014), citing

Richardson v. Marsh, 481 U.S. 200 (1987).10

       As Appellant concedes, our Supreme Court and this Court have

approved references to “the other guy” in place of a co-defendant’s name in

a confession. See Appellant’s Brief at 22 (collecting cases). Nonetheless,

Appellant relies on cases from the early 1990s and 1970s, along with recent

federal cases, to argue that Kelsey’s statement was inadmissible because it

contextually implicated him in Duval’s murder. In other words, he contends

that the redactions, combined with other evidence, left the unmistakable

impression that he was “the other guy” referenced in Kelsey’s statement. This

argument fails because, unlike the United States Court of Appeals for the Third

Circuit, our Supreme Court has distinguished the use of “the other guy” in




____________________________________________


10 As our Supreme Court recognized in Daniels, its Bruton jurisprudence
departs from that of the United States Court of Appeals for the Third Circuit.
See Daniels, 104 A.3d at 294; see also Rainey v. Sec’y Pennsylvania
Dep’t of Corr., 658 F. App’x 142, 151 (3d Cir. 2016). It is axiomatic that we
are bound by our Supreme Court’s decisions and not those of the United States
Court of Appeals for the Third Circuit. See Daniels, 104 A.3d at 294. Hence,
we focus our analysis on decisions by our Supreme Court and this Court.

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confessions from the use of a blank space that the Supreme Court of the

United States considered in Gray v. Maryland, 523 U.S. 185 (1998).

      After Gray, our Supreme Court held that even when other evidence at

trial, considered together with a redacted co-defendant’s confession, clearly

implicates a defendant, the circumstances are insufficient to warrant

suppression under Bruton. Commonwealth v. Rainey, 928 A.2d 215, 227-

228 (Pa. 2007); but see n.10 supra (Third Circuit found this was a

misapplication of clearly established federal law). This Court has followed our

Supreme Court’s precedent and held that “there is no Bruton violation when

the accused is linked to the crime with other properly admitted evidence other

than the redacted confession; it is a permissible instance of contextual

implication.”   Commonwealth v. James, 66 A.3d 771, 777 (Pa. Super.

2013), appeal denied, 77 A.3d 636 (Pa. 2013) (cleaned up).

      When determining if contextual implication violates a defendant’s rights,

we must consider “the potential prejudice to the defendant versus the

probative value of the evidence, the possibility of minimizing the prejudice,

and the benefits to the criminal justice system of conducting joint trials.”

Rainey, 928 A.2d at 228. For the reasons explained infra, there was little

risk of prejudicing Appellant by admitting Kelsey’s statements and the benefits

of a joint trial were significant.   Hence, pursuant to our Supreme Court’s

current decisional law, Appellant’s underlying Bruton claim lacks arguable




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merit and he is not entitled to relief on his first claim of ineffective assistance

of counsel.

      In his second issue, Appellant argues that trial counsel was ineffective

in failing to file a motion to sever. According to Appellant, his counsel should

have sought to have him tried separately from Kelsey.          We conclude that

Appellant’s underlying claim lacks arguable merit and, therefore, he is not

entitled to relief on this claim of ineffectiveness.

      Severance of defendants is governed by Pennsylvania Rule of Criminal

Procedure 583, which provides that, “The court may order separate trials of

offenses or defendants, or provide other appropriate relief, if it appears that

any party may be prejudiced by offenses or defendants being tried together.”

Pa.R.Crim.P. 583. When considering a motion to sever, a trial court should

consider the following factors:

      (1) whether the number of defendants or the complexity of the
      evidence as to the several defendants is such that the trier of fact
      probably will be unable to distinguish the evidence and apply the
      law intelligently as to the charges against each defendant; (2)
      whether evidence not admissible against all the defendants
      probably will be considered against a defendant notwithstanding
      admonitory instructions; and (3) whether there are antagonistic
      defenses.

Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010), appeal

denied, 22 A.2d 1033 (Pa. 2011) (cleaned up).

      It is well-settled that “joint trials are preferred where conspiracy is

charged.”     Commonwealth v. Cole, 167 A.3d 49, 57 (Pa. Super. 2017),

appeal denied, 186 A.3d 370 (Pa. 2018) (cleaned up).               Moreover, the

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“potential prejudice to a defendant from the use of non-testifying co-

conspirators’ statements must be balanced against the demands of judicial

economy and desire for verdict consistency.” Commonwealth v. Oliver, 635

A.2d 1042, 1044 (Pa. Super. 1993).

      In this case, there were only two defendants and the complexity of the

evidence as to the two defendants was low.       Hence, the jury could easily

distinguish the evidence and apply the law intelligently as to both Appellant

and Kelsey. Thus, the first factor weighed against severance.

      As to the second factor, Appellant faced minimum prejudice from the

admission of Kelsey’s statement.      Appellant, in his statement to police,

admitted that he was present during the murder. The evidence that Appellant

was armed at the time of Duval’s murder and the evidence regarding the

robbery of Duval would also have been admissible if Appellant’s trial were

severed from Kelsey’s trial. Hence, the only portion of Kelsey’s statement that

was not cumulative was that portion alleging that Appellant shot Duval. The

person that shot Duval, however, was immaterial to Appellant’s second-

degree murder conviction. If Appellant conspired with Kelsey or participated

in the robbery as either a principal or accomplice, and Duval was murdered

during that robbery, Appellant was guilty of second-degree murder. All of the

evidence related to Appellant’s participation in the robbery would have been

admissible at a separate trial for Appellant and the evidence that Appellant




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was present at the time of the murder would have also been admissible at a

separate trial.

      Thus, this case is distinguishable from Commonwealth v. Boykin, 460

A.2d 1101 (Pa. 1983). In that case, our Supreme Court held that trial counsel

was ineffective for failing to seek severance because the defendant would have

benefited substantially from severance. Id. at 1103. In this case, defendant

would not have benefited substantially from severance.

      As to the third factor, Appellant’s and Kelsey’s defenses were not so

antagonistic as to cause prejudice. Appellant argued that Kelsey shot Duval

while Kelsey argued that Appellant shot Duval. There was no other portion of

Kelsey’s defense that was antagonistic to Appellant’s defense. Our Supreme

Court has held that defendants pointing fingers at each other is insufficient

antagonistic defenses to warrant separate trials.   See Commonwealth v.

King, 721 A.2d 763, 771 (Pa. 1998), citing Commonwealth v. Lambert,

603 A.2d 568, 573 (Pa. 1992).

      As in King, “the following factors militated in favor of a joint trial:

Appellants were charged with conspiracy; the majority of the crimes charged

were the same; the circumstances giving rise to the crimes were identical with

respect to both defendants; and the witnesses necessary to prove the crimes

were the same.” King, 721 A.2d at 771. The prejudice Appellant faced from

introduction of Kelsey’s statement was low.      Hence, severance was not

appropriate under Rule 583. Accordingly, Appellant’s underlying claim lacks


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arguable merit and counsel was not ineffective for failing to file a severance

motion.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/18




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