J-S75002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSEPH TUNSTALL                         :
                                         :
                     Appellant           :   No. 7 EDA 2018

              Appeal from the PCRA Order December 14, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0009724-2011


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                            FILED JUNE 05, 2019

      Appellant, Joseph Tunstall, challenges the order entered in the

Philadelphia Court of Common Pleas, denying his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we affirm.

      The relevant facts and procedural history of this case are as follows.

Jamira Tunstall encountered her ex-boyfriend, Darrell Wright, while drinking

at the Grand Slam Bar in Philadelphia. Following an argument, Tunstall left

the bar, shouting that Wright had hit her. Before long, she returned with

several companions. After she and Wright began arguing again, the bartender

asked them to leave. They left separately, with Tunstall shouting that she

would be “making a call to her people.” N.T. Trial, 11/19/13, at 216.

      Tunstall then called her uncle, Appellant, and told him about the fight.

She asked Appellant to go to the Grand Slam Bar and “fuck up” Wright on her
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behalf. N.T. Trial, 11/20/13, at 39. Witnesses saw Appellant in the vicinity of

the Grand Slam Bar shortly thereafter, asking for Wright’s whereabouts. One

of Appellant’s companions displayed a firearm.

      Meanwhile, Wright had walked home and informed his cousin, Kelly

Nelson, of the fight. Nelson unsuccessfully attempted to calm Wright before

Wright left the house again.

      Nelson then walked to the Grand Slam Bar in search of Wright, who was

not inside. Nelson ordered and finished a drink before leaving the bar. Outside,

he encountered Appellant and several other men. Appellant yelled, “your

people slapped my niece.” N.T. Trial, 11/21/13, at 200. Appellant and his

accomplices began shooting at Nelson. Nelson suffered a total of ten gunshot

wounds, fired from weapons of two different calibers. He died at the scene.

      A jury convicted Appellant of first-degree murder, criminal conspiracy,

and possession of a firearm without a license. He was sentenced to life

imprisonment without the possibility of parole. On appeal, this Court affirmed

his judgment of sentence. The Pennsylvania Supreme Court denied his petition

for allowance of appeal on February 2, 2016.

      Appellant filed his first timely, counseled PCRA petition on December 15,

2016. The PCRA court issued notice of its intent to dismiss Appellant’s petition

without an evidentiary hearing, pursuant to Pa.R.Crim.P. 907. The court then

dismissed Appellant’s petition. This appeal is now properly before us.

      “Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

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supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). “With respect to the

PCRA court’s decision to deny a request for an evidentiary hearing … such a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015) (citation omitted).

      In each of his claims, Appellant argues trial counsel was ineffective in

his representation. To obtain relief on an ineffectiveness claim, a petitioner

must plead and prove by a preponderance of the evidence “[i]neffective

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. § 9543(a)(2)(ii).

      “It is well-established that counsel is presumed effective, and a PCRA

petitioner bears the burden of proving ineffectiveness.” Commonwealth v.

Reyes-Rodriguez, 111 A.3d 775, 779-780 (Pa. Super. 2015) (citations

omitted). To prove ineffectiveness, a petitioner must establish his underlying

claim has arguable merit; no reasonable basis existed for counsel’s failure to

raise these claims; and he suffered prejudice as a result of counsel’s inaction.

See Commonwealth v. VanDivner, 178 A.3d 108, 114 (Pa. 2018). “The

PCRA court may deny an ineffectiveness claim if the petitioner’s evidence fails

to meet a single one of these prongs.” Commonwealth v. Natividad, 938

A.2d 310, 321 (Pa. 2007) (citation and internal quotation marks omitted).




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      Appellant first alleges trial counsel failed to introduce a text message

proving the existence of an alternate suspect. In the text message, Jamira

Tunstall instructed a man named “Geo” to “strap up now.” Commonwealth’s

Exhibit 88. Appellant claims this statement ordered Geo, in street language,

to get a gun and confront Darrell Wright. He believes the statement should

have been admitted to show its possible effect on the recipient, Geo. Appellant

avers counsel’s error deprived him of the ability to present the jury with

another suspect, and so concludes he is entitled to relief based on counsel’s

ineffectiveness. We disagree.

      When an appellant alleges counsel was ineffective for failing to introduce

evidence, the appellant must prove not only that the trial court would have

admitted the evidence, but also that introduction of the evidence would have

resulted in a different outcome. See Natividad, 938 A.2d at 330. If an

appellant fails to demonstrate that counsel’s omission adversely affected the

outcome of the proceedings, the claim may be dismissed on that basis alone,

without determining whether the other prongs of the ineffectiveness test have

been met. See Commonwealth v. Trieber, 121 A.3d 435, 451 (Pa. 2015).

      Here, the jury heard that Jamira Tunstall called Appellant, her uncle,

and told him Darrell Wright hit her during an argument at the Grand Slam Bar

near her apartment complex. See N.T. Trial, 11/20/13, at 39. She testified

that she asked Appellant to fight Wright. See id., at 42.

      The jury also heard testimony from Darren Rogers. He testified that he

was high at the time of Kelly Nelson’s murder, and could not remember

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anything about that night.       See    N.T. Trial, 11/19/13, at   242. The

Commonwealth then introduced Rogers’s earlier statements to police, as well

as his photo identification of Appellant. See id., at 243.

      In those statements, Rogers averred he knew Nelson for six or seven

years before the murder. See id., at 257. He also indicated he first met

Appellant roughly six months before the murder. See id., 265. Rogers

informed police he saw Appellant standing in the street with several other

people near the rental office of Jamira Tunstall’s apartment complex. See N.T.

Trial, 11/21/13, at 200.

      Rogers heard Appellant yell “your people slapped my niece,” as he and

his accomplices surrounded someone Rogers could not see. Id. He saw

“sparks going off in front of” Appellant and heard gunshots. N.T. Trial,

11/19/13, at 260. Rogers spotted other people ducking. See id. He then

identified Appellant in an eight-photograph array as “Joey,” whom he knew to

be Jamira Tunstall’s uncle. See id., at 269-270. At trial, Rogers claimed he

could not remember making the above statements to police. See id., at 261.

      Quinton Gamble testified after Rogers. He denied seeing Appellant near

the murder scene. See N.T. Trial, 11/20/13, at 112. In response to this

testimony, the Commonwealth introduced Gamble’s prior statement to police.

See id., at 113. In it, Gamble stated that Jamira Tunstall’s uncle, Appellant,

knocked on Gamble’s door on the night of the murder. See id., at 114.

      Appellant and another man, “Fatty,” asked Gamble if he had seen Darrell

Wright. See id. During this discussion, Fatty showed Gamble a firearm. See

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id. About twenty minutes later, Gamble heard gunshots coming from the

rental office, near the Grand Slam Bar. See id. Gamble then saw Appellant,

Fatty, and another man walking away from that area.

      The Commonwealth also presented evidence that Kelly Nelson’s death

was caused by ten gunshot wounds, which were fired from weapons of two

different calibers. See N.T. 11/21/13, at 78-81.

      In sum, the jury heard testimony that Appellant and a group of men

confronted Nelson. Appellant was seen firing a gun at Nelson, who later died

from gunshot wounds. These wounds were inflicted by more than one firearm.

      Based on the foregoing, Appellant cannot demonstrate that counsel’s

failure to introduce evidence of another suspect in Nelson’s death adversely

affected the outcome of the trial. See Trieber, 121 A.3d at 451. Even if

counsel had introduced Jamira Tunstall’s text message to Geo to “strap up

now,” and the jury believed the message provoked Geo to shoot Nelson, such

evidence would not exonerate Appellant. The testimony evinced at trial

showed Appellant and several other men confronted Nelson, and more than

one man fired a gun at Nelson. Nelson died from multiple gunshot wounds

fired from weapons of different calibers. The suggestion that Geo was among

these shooters does not disprove Appellant’s own participation in Nelson’s

murder. Therefore, Appellant is due no relief on this claim.

      Appellant next argues counsel was ineffective for failing to introduce

photographs from the location where Darren Rogers allegedly witnessed the

murder. According to Appellant, photographs of the murder scene taken from

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where Rogers stood that night would prove the impossibility of facial

identification. Appellant believes such evidence would have eviscerated

Rogers’s identification of Appellant as the murderer.

      The PCRA court responded to this assertion as follows:

      [T]he trial record establishes that it was reasonable for trial
      counsel not to use a map and photographs to attack the credibility
      of Rogers. Rogers gave a statement to the police in which he
      stated that he saw Jamill Rone, [Appellant], and several other men
      surrounding someone. Rogers then heard [Appellant], whom he
      knew, yell, “you people slapped my niece,” and then saw
      [Appellant] fire a gun. However, Rogers testified at a preliminary
      hearing that he did not see the shooting, but, rather, was high on
      drugs and asleep at Andrea’s house, nowhere near the site of the
      shooting, when the killing occurred. At trial, Rogers again testified
      that he did not see the shooting because he was high on drugs
      and sleeping at Andrea’s house. Rogers’s testimony at the trial
      was corroborated by defense witness Tierra Nesmith, Rogers’s
      [girlfriend] at the time. She testified that, on the night of the
      shooting, she was with Rogers at Andrea’s house, when Rogers
      got high on drugs and went to sleep around 10:00 p.m.
      Accordingly, defense counsel had excellent evidence to refute the
      credibility of Rogers’s initial statement to police.

      Moreover, there is not a reasonable probability that the outcome
      of the trial would have been different had defense counsel
      attacked the credibility of Rogers’s statement to police with maps
      and photographs. First, in the statement, Rogers did not reveal
      the exact location from where he observed the shooting, stating
      only that he was “walking back from the Sunoco and was across
      from Big Momma’s house.” Because Rogers repudiated the
      statement by the time of the preliminary hearing, it was not
      possible to get any clarification from him as to precisely where he
      was standing when the shooting occurred. As a result, any
      analysis purporting to attack the statement based on Rogers’s
      point of view would have had limited probative value.

      Second, Rogers knew [Appellant], and claimed in the statement
      not only to have seen [Appellant], but also to have heard him
      screaming right before the shooting. Maps and photographs would


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      not have diminished Rogers’s claim of recognizing [Appellant’s]
      voice.

      Third, what Rogers claimed that he heard [Appellant] say strongly
      corroborated his claim that [Appellant] was the speaker. In
      particular, Rogers told the police that he heard [Appellant]
      scream, “you people slapped my niece.” Since the slapping of
      Jamira Tunstall, [Appellant’s] niece, by Wright, the victim’s
      cousin, allegedly precipitated the shooting, it seemed highly
      unlikely that Rogers’s statement was a complete fabrication.

      Finally, [] there was compelling evidence of [Appellant’s] guilt
      apart from Rogers’s statement, including the testimony of witness
      Quinton Gamble, cell tower records [showing Appellant’s cell
      phone was used in the vicinity of the shooting immediately before
      and after the shooting], and incriminating text messages on
      [Appellant’s] phone[, including incoming texts advising Appellant
      to “stop talking” and to erase his text messages].

PCRA Court Opinion, filed 3/28/18, at 7-10 (citations omitted).

      The record supports the court’s analysis. Appellant cannot prove that

the outcome of his trial would have changed if counsel had obtained and been

permitted to introduce the photographs. See Natividad, 938 A.2d at 330.

The PCRA court was not obligated to hold an evidentiary hearing on this claim,

as Appellant could not have obtained relief. See Mason, 130 A.3d at 617.

      Appellant also challenges trial counsel’s failure to object to a text

message exchange between Jamira Tunstall and Darrell Wright after the

murder. Appellant    claims   the   messages were    hearsay, because     the

Commonwealth introduced them to prove the truth of their assertions.

Appellant concludes counsel was ineffective for failing to object to the

Commonwealth’s introduction of the message.




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          Hearsay is an out-of-court statement offered to prove the truth of the

matter asserted. See Pa.R.E. 801. Hearsay is inadmissible, with some

exceptions. See Pa.R.E. 802, 803. However, “[w]hen an extrajudicial

statement is offered for a purpose other than proving the truth of its contents,

it   is   not   hearsay and     is   not   excludable   under   the   hearsay rule.”

Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999) (citation omitted).

“[S]tatements are admissible to establish ill-will or motive where they are not

being offered for the truth of the matter contained therein.” Id. (citation and

footnote omitted).

          Appellant challenges the following exchange of text messages:

          [Wright]: So he kill my cousin instead of me.

          [Wright]: Say no more

          [Tunstall]: Rell im sorry 4 ur lost but ur not gone threatin me!

Commonwealth’s Exhibit 88.

          The PCRA court concluded that the statement was not hearsay, because

it was not offered for the truth of the matter asserted: that “he,” Appellant,

killed Kelly Nelson. See PCRA Court Opinion, filed 3/28/18, at 8. Instead, the

court found the Commonwealth introduced the text messages in order to show

a possible motive for Nelson’s death.

          We agree. The Commonwealth did not introduce the text messages into

evidence as proof that Appellant killed Wright’s cousin, or to show that Tunstall

was genuinely sorry for Nelson’s death. Rather, these statements were offered



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to show the ill-will between Tunstall and Wright, and thus establish Appellant’s

motive for killing Nelson.

      The Commonwealth’s theory of the case relied on showing that

Tunstall’s fight with Wright provoked Appellant to attack one of Wright’s

associates in order to defend his niece, Tunstall. See N.T. Trial, 11/20/13, at

53-54. Tunstall’s mention of Wright’s perceived threat to her earlier that

evening, in connection with her reference to Wright’s loss, supplied a link

between those two events probative of motive. Therefore, the text messages

were properly admitted. As such, trial counsel cannot be deemed ineffective

for failing to object. See Commonwealth v. Hanible, 30 A.3d 426, 468 (Pa.

2011) (holding ineffectiveness claim premised on counsel’s failure to object

lacked arguable merit where counsel had no basis for objection).

      Finally, Appellant argues he is entitled to a new trial under a “cumulative

error” standard. He contends that the cumulative prejudicial effect of the

claims set forth in his petition warrants relief.

      The Pennsylvania Supreme Court has held that “no number of failed

ineffectiveness claims may collectively warrant relief if they fail to do so

individually.” Commonwealth v. Busanet, 54 A.3d 35, 75 (Pa. 2012)

(citation omitted). “When the failure of individual claims is based upon a lack

of prejudice, however, then the cumulative prejudice from those individual

claims may properly be assessed.” Commonwealth v. Elliott, 80 A.3d 415,

450 (Pa. 2013) (citation omitted). Further, “prejudice does not accumulate




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from two disparate claims.” Commonwealth v. Smith, 17 A.3d 873, 915

(Pa. 2011) (citation omitted).

      To the extent we resolved on prejudice grounds Appellant’s claims

regarding counsel’s failure to present text messages between Tunstall and her

friend Geo, and the lack of photographs in the record to refute Darren Rogers’s

testimony, we found these claims alone did not prejudice Appellant and do not

warrant relief. Even when considered in the aggregate, we find the outcome

of trial would not have changed. See id. Appellant is not entitled to relief on

a cumulative prejudice standard. Accordingly, we affirm the PCRA court’s

denial of his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/19




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