J-S13025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TERRELL LAMONT CHILDS

                            Appellant                  No. 928 WDA 2015


               Appeal from the PCRA Order Entered May 12, 2015
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0000620-2008


BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 13, 2016

        Appellant, Terrell Lamont Childs, appeals from the May 12, 2015 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. We affirm.

        In a prior memorandum, this Court summarized the underlying facts

and procedural history:

              The facts underlying Appellant’s arrest and conviction were
        aptly summarized by the trial court[:]

                    At approximately 8:30 a.m. on April 19, 2007,
              on a Smithfield Street sidewalk between Fourth
              Avenue and Forbes Avenue in Downtown Pittsburgh,
              Appellant shot the victim, Jibreel Scott, five times in
              his torso. Jibreel Scott was the brother of Obataiye
              Scott, an individual who was suspected and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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          subsequently pled guilty in 2008 to killing Appellant’s
          brother, Jerome Childs. Jerome Childs had been
          shot and killed at a bar in the Hill District Section of
          the City of Pittsburgh on April 11, 2007, one week
          before the Jibreel Scott shooting.

                Shortly before the Jibreel Scott shooting,
          Appellant, an African-American male, exited a stolen
          blue Subaru with Pennsylvania registration GMC-
          0958 that was parked on Fourth Avenue. He was
          wearing a hoody, a long black trench coat, and black
          gloves. He disguised his features by wearing a dark
          dreadlocks wig and a false beard. He walked from
          Fourth Avenue and turned right onto Smithfield
          Street where he confronted Kevin Alton, who was
          making a telephone call from a phone booth on
          Smithfield Street. Appellant approached the left side
          of Mr. Alton, seized him by the front of his coat, and
          pointed a gun in his face. After looking at him for a
          few seconds, Appellant released Mr. Alton, stating,
          ‘My bad, young’n. This ain’t for you.’

                Minutes later, and a few feet from his
          confrontation with Mr. Alton, Appellant encountered
          Jibreel Scott, who was walking on Smithfield Street.
          Appellant confronted Scott and shot him once, and
          Scott fell to the ground. Appellant then grasped Mr.
          Scott by his collar, bent over him, and fired several
          additional shots into his torso.         Immediately
          afterwards, with the gun still in his hand, Appellant
          fled back down Smithfield Street to Fourth Avenue
          where he had parked the Subaru, entered it, and
          drove up Fourth Avenue.

                                    […]

                On April 20, 2007, the morning following the
          shooting, police recovered a fake beard, two
          dreadlocks wigs, a right-handed, black batting type
          glove, and a black trench coat, which were scattered
          near a dumpster in a parking lot at 3443 Ward
          Street, in the Oakland section of the City of
          Pittsburgh. DNA samples were taken from the glove,
          the mouth area and ear straps of the beard, and one
          of the wigs, and the results were compared to

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          reference samples from Appellant and Gary Adams.
          [Gary Adams was initially investigated as a suspect
          in the murder of Scott, but was later excluded based
          upon his height, weight, and skin tone, and the fact
          that none of the DNA samples matched his profile.]
          The mouth area of the beard provided a single DNA
          source. Appellant was the person who contributed
          the DNA that as found on the mouth area of the
          beard. The ear straps of the beard and the glove
          both yielded mixed DNA samples of two or more
          individuals, and the dreadlocks wig was a mixture of
          three or more individuals. Gunshot residue was
          found on both sleeves of the coat, as well as on the
          glove.

                 In the early evening of April 23, 2007, on
          Ophelia Street in the South Oakland section of the
          City of Pittsburgh, police recovered the blue Subaru
          Sports Edition WRX, with Pennsylvania license plate
          GMC-0958, which had been reported stolen by its
          owner. The Subaru was found .6 miles from where
          the wigs, beard, and other items were found, and
          2.9 miles from where the shooting on Smithfield
          Street took place. A rust brown colored propylene
          fiber lifted from the driver’s seat of the Subaru was
          consistent with propylene fiber from the beard. A
          brown colored wool fiber lifted from the front
          passenger seat of the vehicle was consistent with
          fibers from one of the dreadlocks wigs.

                On April 26, 2007, one week after the
          shooting, the victim, Jibreel Scott, was pronounced
          dead at Mercy Hospital. He died as a result of
          multiple gunshot wounds to the torso, and the
          manner of death was homicide.

     Trial Court Opinion (T.C.O.), 1/27/11, at 4-8 (footnotes and
     record citations omitted).

            Appellant was subsequently arrested and charged with
     murder in both the first and third degree and carrying a firearm
     without a license. Before trial, Appellant sought recusal of the
     trial judge and the suppression of a statement, both of which
     were denied. Following a five-day jury trial, on April 27, 2009, a
     jury returned a verdict of guilty on all charges. Appellant was

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       sentenced on August 6, 2009, to a term of life imprisonment for
       murder in the first degree, and a consecutive term of
       imprisonment of from three years to six years for carrying a
       firearm without a license.

Commonwealth v. Childs, 47 A.3d 1239 (Pa. Super. 2012) (table),

unpublished memorandum at 1-3, appeal denied, 50 A.3d 124 (Pa. 2012).

       This Court affirmed Appellant’s judgment of sentence, and our

Supreme Court denied allowance of appeal on August 21, 2012. Appellant

filed this timely first PCRA petition on November 19, 2013.1           Appointed

counsel filed an amended petition on November 19, 2014 and the

Commonwealth answered the amended petition on March 17, 2015.                  On

April 13, 2015, the PCRA court filed a Pa.R.Crim.P. 907 notice of intent to

dismiss Appellant’s petition without a hearing. The PCRA court entered an

order dismissing the petition on May 12, 2015, and this timely appeal

followed.

       Appellant raises five issues for our review:

       I.     Whether [Appellant’s] claim for relief properly cognizable
              [sic] under the [PCRA]?

       II.    Did the lower court abuse its discretion in denying the
              petition alleging counsel’s ineffectiveness without a
              hearing, where [Appellant] established the merits of the
              claim that trial counsel was ineffective for failing to object
              to and request that the jury be instructed to reconsider
____________________________________________


1
   Appellant’s judgment of sentence became final on November 29, 2012,
ninety days after the Pennsylvania Supreme Court denied allowance of
appeal.    SUP. CT. R. 13.     Appellant’s petition meets the timeliness
requirement of 42 Pa.C.S.A. § 9545(b)(1).



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             their mutually inconsistent guilty verdicts of first degree
             murder and third degree murder?

      III.   Did the lower court abuse its discretion in denying the
             petition alleging counsel’s ineffectiveness without a
             hearing, where the [Appellant] established the merits of
             the claim that trial counsel was ineffective for failing to
             argue on appeal that the court erred in admitting the
             gruesome, color, full-body nude autopsy photographs of
             the victim over trial counsel’s objection, since these
             photographs were highly inflammatory, cumulative of
             other evidence, and unduly prejudicial?

      IV.    Did the lower court abuse its discretion in denying the
             petition alleging counsel’s ineffectiveness without a
             hearing, where [Appellant] established the merits of the
             claim that trial counsel and appellate counsel were
             ineffective for failing to argue that critical exculpatory
             evidence that someone else admitted to committing the
             crime was admissible, even though it constituted hearsay,
             on the grounds that [Appellant] had a right to present a
             defense under the United States and Pennsylvania
             Constitutions?

      V.     Did the lower court abuse its discretion in denying the
             petition alleging counsel’s ineffectiveness without a
             hearing, where [Appellant] established the merits of the
             claim that trial counsel was ineffective for failing to argue
             that critical exculpatory evidence that the victim’s
             description of the shooter given to a third party did not
             match [Appellant] was admissible on the grounds that
             [Appellant] had a right to present a defense under the
             United States and Pennsylvania Constitutions?

Appellant’s Brief at 4-5.

      We agree with Appellant’s assertion that his claims are cognizable

under the PCRA. We have already concluded that Appellant’s petition was

timely. He is currently serving a life sentence in accord with § 9543(a)(1),

and his claims of counsel’s ineffective assistance are cognizable under



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§ 9543(a)(2)(ii). 42 Pa.C.S.A. § 9543(a)(1), (2)(ii). We therefore proceed

to the merits.

      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).               “The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.” Id. Dismissal without a hearing is appropriate when the PCRA court

“is satisfied [. . .] that there are no genuine issues concerning any material

fact and that the defendant is not entitled to post-conviction collateral relief,

and no purpose would be served by any further proceedings[.]” Pa. R. Crim.

P. 907(1).

      To prevail on a claim of counsel’s ineffective assistance, a petitioner

must plead and prove: (1) the arguable merit of the underlying claim; (2)

the absence of any reasonable strategic basis for counsel’s action or

inaction; and (3) prejudice, i.e., a reasonable probability the outcome would

have been different but for counsel’s mistake. Commonwealth v. Henke,

851 A.2d 185, 187 (Pa. Super. 2004), appeal denied, 863 A.2d 1144 (Pa.

2004). The petitioner bears the burden of proving counsel’s ineffectiveness.

Commonwealth v. Khalil, 806 A.2d 415, 421 (Pa. Super. 2002), appeal

denied, 818 A.2d 503 (Pa. 2003).


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       Appellant asserts trial counsel was ineffective for failing to object to an

inconsistent verdict—guilty of both first- and third-degree murder.             Our

Supreme Court has addressed this issue and found no inconsistency between

convictions for first- and third-degree murder:

             [The appellant] argues that the two verdicts are legally
       inconsistent, because the conviction for first degree murder
       requires a finding that [the appellant] had a specific intent to kill,
       while the conviction for third degree murder requires the
       opposite finding that [the appellant] did not have a specific
       intent to kill. This, however, is an incorrect statement of the
       law.

             Contrary to [the appellant’s] assertion, third degree
       murder is not a homicide that the Commonwealth must prove
       was committed with malice and without a specific intent to kill.
       Instead, it is a homicide that the Commonwealth must prove was
       committed with malice, but one with respect to which the
       Commonwealth need not prove, nor even address, the presence
       or absence of a specific intent to kill. Indeed, to convict a
       defendant for third degree murder, the jury need not consider
       whether the defendant had a specific intent to kill, nor make any
       finding with respect thereto. Thus, there is no inconsistency in
       the jury’s convicting Appellant of both first and third degree
       murder.

Com. v. Young, 748 A.2d 166, 174-75 (Pa. 1999)), on reargument in part

(Pa. 2000); see also Commonwealth v. Meadows, 787 A.2d 312, 317

(Pa. 2001)(same);2 Commonwealth v. Kimbrough, 872 A.2d 1244, 1256

(Pa. Super. 2005) (en banc) (explaining that verdicts were not inconsistent


____________________________________________


2
   The Supreme Court issued divided opinions in Young and Meadows, but
the consistency of first and third degree murder convictions was not the
divisive issue.



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where conviction for voluntary manslaughter required proof of specific intent

to and conviction for third degree murder required proof of malice).

      Appellant ignores this controlling case law in favor of Commonwealth

v. Brightwell, 424 A.2d 1263 (Pa. 1981), wherein the Supreme Court

referred to verdicts of guilty on voluntary manslaughter and third degree

murder as “obviously inconsistent.”    Id. at 425. On collateral review, the

Supreme Court held that the issue of counsel’s failure to object to these

verdicts was of arguable merit. Id. at 426. The Court also concluded that

counsel had a reasonable strategic basis, as the defendant received a not

guilty verdict on first-degree murder, and counsel did not want the jury to

have an opportunity to revisit an unrecorded verdict. Id. at 427.

      Brightwell, therefore, held only that the issue was of arguable merit,

and this Court has recognized that the Supreme Court “tempered”

Brightwell in Young and Meadows.            Commonwealth v. Kimbrough,

938 A.2d 447, 449-50 (Pa. Super. 2007) (“Kimbrough II”). In summary,

Young and Meadows are directly on point and controlling, and we discern

no arguable merit in Appellant’s first assertion of ineffective assistance of

counsel.

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

the trial court’s decision to admit several autopsy photographs.            The

admissibility of photographs of a murder victim rests within the sound

discretion of the trial court:


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           Photographs of a murder victim are not per se
     inadmissible.... The admission of such photographs is a matter
     within the discretion of the trial judge. The test for determining
     the admissibility of such evidence requires that the court employ
     a two-step analysis. First[,] a court must determine whether the
     photograph is inflammatory. If not, it may be admitted if it has
     relevance and can assist the jury’s understanding of the facts. If
     the photograph is inflammatory, the trial court must decide
     whether or not the photographs are of such essential evidentiary
     value that their need clearly outweighs the likelihood of
     inflaming the minds and passions of the jurors.

                                    [. . .]

            A criminal homicide trial is, by its very nature, unpleasant,
     and the photographic images of the injuries inflicted are merely
     consonant with the brutality of the subject of inquiry. To permit
     the disturbing nature of the images of the victim to rule the
     question of admissibility would result in exclusion of all
     photographs of the homicide victim, and would defeat one of the
     essential functions of a criminal trial, inquiry into the intent of
     the actor. There is no need to so overextend an attempt to
     sanitize the evidence of the condition of the body as to deprive
     the Commonwealth of opportunities of proof in support of the
     onerous burden of proof beyond a reasonable doubt.

Commonwealth v. Mollett, 5 A.3d 291, 301 (Pa. Super. 2010) (quoting

Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003)), appeal denied,

14 A.3d 826 (Pa. 2011). We will find an abuse of discretion only when the

essential evidentiary value of the photograph is clearly outweighed by the

inflammatory effect the picture will have upon the minds and passions of the

jurors. Commonwealth v. LeGares, 709 A.2d 922, 924 (Pa. Super. 1998),

appeal denied, 729 A.2d 1127 (Pa. 1998).

     Appellant relies on LeGares, in which this Court ordered a new trial

based on the trial court’s erroneous admission of a photograph of the victim.



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             [T]he color slide is quite gruesome. The grim visage
       highlights in gory detail the destruction wreaked upon the
       victim’s skull by the 20-gauge shotgun blast. The left side of the
       victim’s head is shown, the flesh flayed from the skull and folded
       back, the fractured skull wired together to reveal the gaping
       entry wound, and the victim’s brain removed. The slide image
       was rendered all the more ghastly by the large size of its colored
       projection.

Id. at 924-25. The LeGares Court therefore concluded the photograph was

inflammatory. Id. at 925. Since it was cumulative of other evidence in the

record, we concluded the trial court erred in admitting it.

       Appellant also relies on Commonwealth v. Powell, 241 A.2d 119

(Pa. 1968). There, the forensic pathologist relied on “color-slide films of the

deceased in an effort to help the jury understand his medical testimony.”

Id. at 120. Our Supreme Court ordered a new trial because the slides were

not “of such essential evidentiary value that their need clearly outweighs the

likelihood of inflaming the minds and passions of the jurors.” Id. at 121.3

The Supreme Court described the record as evincing a “clear felony murder

case where the force used and the nature and extent of the injuries involved

have no bearing on a finding of first degree felony murder.” Id. The victim

died of multiple head injuries sustained during the commission of a robbery.

Id. at 120.

       Finally, Appellant cites Commonwealth v. Eckhart, 242 A.2d 271,

274 (Pa. 1968), in which our Supreme Court ordered a new trial where the
____________________________________________


3
    This standard differs from the one presently in force.



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trial court admitted a photograph of the victim’s skull with the scalp pulled

aside to reveal the damage the defendant inflicted on the victim’s skull.

             It is difficult to imagine a photograph more gory, more
      likely to inflame a jury, than that in the instant case. It was a
      photograph of decedent’s skull with the fissures therein,
      revealed by pulling the scalp forward. The jury saw a skull and a
      tangled mass of bloody hair and part of a bloody scalp. Appellee
      urges that the photograph was necessary to show the force of
      appellant’s blows and that the force came from the front. The
      Commonwealth’s medical witness testified that the jury could get
      a better understanding of the injuries by viewing the pictures. [.
      . .] Assuming however that the photograph as a whole was
      helpful to the doctor’s testimony, that is only because of the
      skull itself. While the skull itself is not particularly pleasant to
      view, it is a veritable Michelangelo compared to the gruesome
      scalp and bloody web of tangled hair. The scalp and hair are
      totally irrelevant, and highly inflammatory. They could easily
      have been excised from the photograph.

Id. at 274.

      In summary, Appellant relies on cases in which the Commonwealth

introduced photographic evidence of particularly gruesome head wounds. In

LeGares and Eckhart, the victims’ scalps were partially removed, revealing

damage to the victims’ skulls.      The instant case is easily distinguishable.

The Commonwealth introduced four photographs depicting the multiple

gunshot wounds to the victim’s torso. Counsel objected to the photographs

at trial, arguing that the Commonwealth could use a diagram of a human

torso, and that the defense was not contesting any physiological findings.

N.T. Trial, 4/21-27/2009, at 256. The trial court admitted them subject to a

limiting instruction.   Counsel did not challenge the trial court’s decision on

direct appeal.

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      The Commonwealth’s forensic pathologist testified that the victim

sustained five gunshot wounds to the torso. Id. During the pathologist’s

testimony, the Commonwealth introduced four photographs of the victim

over defense counsel’s objection. Id. at 257. The trial court described the

photographs: “They are colorful photographs that show the victim in various

postures and depicted with gunshot wounds to the victim.”      Id.   The trial

court also gave the following limiting instruction:

            Ladies and gentlemen of the jury, during the course of the
      doctor’s testimony you will be viewing four separate
      photographs. Those separate photographs depict the victim in
      this case at the Allegheny County morgue and they are not
      pleasant to look at. You should not in this instance allow the
      nature of these photographs or the depiction of the wounds to
      inflame you or prejudice your decision to impact the defendant.
      The photographs are being admitted for one purpose and one
      purpose alone, that is to allow the doctor to fully explain the
      testimony and his opinions that he has gleaned by virtue of his
      examination totally and also of those wounds. Thank you.

Id. at 257-58.

      According to the pathologist’s testimony, one photograph depicted

three of the five wounds; one to the “left upper chest,” one to the “left

shoulder region,” and one to the “right upper quadrant of the abdomen.”

Id. at 259.    The second photograph depicted an entrance wound in the

victim’s “upper chest and arm.” Id. at 261. The pathologist also used the

second photograph to indicate that the bullet causing the depicted entrance

wound exited through the “left trapezius area.”       Id.   Third photograph

depicted an exit wound in the victim’s right anterior abdomen and an



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entrance wound in the victim’s “right sixth rib.” Id. The fourth photograph

showed exit wounds corresponding to two of the entrance wounds depicted

in the first and second photographs. Id. at 262. One exit wound was in the

“left trapezius area” and the other was under the victim’s armpit. Id. The

pathologist went on to testify that two of the bullets hit the victim’s thoracic

spinal column. Id. at 263. The pathologist opined that the victim died of

multiple gunshot wounds to the torso. Id. at 264.

      The     Commonwealth’s     photographic        evidence   in    this   case    is

distinguishable from LeGares, Powell, and Eckhart for several reasons.

First, the photographs do not depict a head wound.                     Second, the

photographs do not evince any graphic detail beyond what would be

expected for a gunshot wound to the torso. The photographs do not depict,

for example, skin peeled back to reveal the victim’s skeleton. We therefore

cannot   conclude    the   photographs    are       inflammatory.      Rather,      the

photographic evidence is “merely consonant with the brutality of the subject

of inquiry.” Mollett, 5 A.3d at 301 Thus, the photographs are admissible if

they are relevant and of aid to the jury.       Id.    Here, the photographs are

relevant to Appellant’s intent, and they were of assistance to the forensic

pathologist   in   describing   the   cause    of    the   victim’s   death.        The

Commonwealth could have, as Appellant argues, used a diagram of a human

torso. The same is true in any case. To accept Appellant’s argument would

exclude photographic evidence of the victim in most or all cases, a result our


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law does not permit.        Counsel was not ineffective for failing to appeal the

trial court’s admission of autopsy photographs. The underlying issue lacks

arguable merit.

       Next, Appellant argues counsel was ineffective for failing to argue that

the    trial   court’s   exclusion    of   hearsay   evidence   violated   Appellant’s

constitutional right to present a defense. Appellant sought to present Chris

Green (“Green”), who would have testified that Gary Adams (“Adams”) told

Green that Adams shot the victim. Adams was a suspect in this case, but

investigators     concluded     the   eyewitness     accounts   and   DNA    evidence

implicating Appellant excluded Adams as the culprit.            Appellant sought to

introduce Green’s account of Adams’ statement under Pa.R.E. 804(b)(3)

(statement against interest),4 but the trial court found that Green was not a

reliable person of authority and that Green’s account of Adam’s statement

lacked sufficient indicia of reliability.      This Court affirmed the trial court’s
____________________________________________


4
    (3) Statement Against Interest. A statement that:

       (A) a reasonable person in the declarant's position would have
       made only if the person believed it to be true because, when
       made, it was so contrary to the declarant’s proprietary or
       pecuniary interest or had so great a tendency to invalidate the
       declarant's claim against someone else or to expose the
       declarant to civil or criminal liability; and

       (B) is supported by corroborating circumstances that clearly
       indicate its trustworthiness, if it is offered in a criminal case as
       one that tends to expose the declarant to criminal liability.

Pa.R.E. 804(b)(3).



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decision. Childs, 47 A.3d 1239, unpublished memorandum at 13. In other

words, Appellant fully litigated the hearsay issue, and this Court affirmed the

trial court’s finding the evidence was not sufficiently reliable to qualify for

the 804(b)(3) hearsay exception.

      In Holmes v. South Carolina, 547 U.S. 319 (2006), the United

States Supreme Court considered whether “a criminal defendant’s federal

constitutional rights are violated by an evidence rule under which the

defendant may not introduce proof of third-party guilt if the prosecution has

introduced forensic evidence that, if believed, strongly supports a guilty

verdict.”   Id. at 321. The defendant was convicted of the rape of an 86-

year-old woman.      Id. at 322.     The defendant attempted to prove that

another man, Jimmy McCaw White told acquaintances that the defendant

was innocent and/or that White committed the crime.            Id. at 323.     The

South Carolina Supreme Court held that “where there is strong evidence of

an appellant’s guilt, especially where there is strong forensic evidence, the

proffered evidence about a third party’s alleged guilt does not raise a

reasonable inference as to the appellant's own innocence.” Id. at 324. As

such, the evidence of the third party’s guilt was inadmissible at trial.

      The Holmes Court acknowledged that “[S]tate and federal rulemakers

have broad latitude under the Constitution to establish rules excluding

evidence from criminal trials.” Id. Nonetheless, the Sixth and Fourteenth

Amendments      of   the   United   States    Constitution   guarantee     criminal


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defendants “a meaningful opportunity to present a complete defense.” Id.

Thus, “evidence rules that infringe upon a weighty interest of the accused

and are arbitrary or disproportionate to the purposes they are designed to

serve” violate a criminal defendant’s constitutional rights. Id.

      The Holmes Court deemed the South Carolina rule arbitrary because

it focused on the strength of the prosecution’s case with “little, if any,

examination of the credibility of the prosecution’s witnesses or the reliability

of its evidence.”   Id. at 329.   “[B]y evaluating the strength of only one

party’s evidence, no logical conclusion can be reached regarding the

strength of the contrary evidence offered by the other side to rebut or cast

doubt. Id. at 331. As such, the South Carolina rule was disproportionate to

the purpose it was designed to serve—“i.e., to focus the trial on the central

issues by excluding evidence that has only a very weak connection to the

central issues.” Id. at 330.

      Appellant also cites Chambers v. Mississippi, 410 U.S. 284 (1973).

Leon Chambers, convicted of murder, sought to prove that Gable McDonald

confessed to three acquaintances that McDonald, not Chambers, committed

the murder.    Id. at 289.     McDonald also gave a signed confession to

Chambers’ attorneys, but later repudiated it.      Id. at 287-88.    Chambers

called McDonald as a defense witness. Id. at 290. The defense introduced

McDonald’s confession during counsel’s direct examination. Id. at 291. On

cross examination, the prosecutor elicited the evidence of McDonald’s


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repudiation of the confession.        Id.      At the close of cross examination, the

trial court denied Chambers’ motion to examine McDonald as a hostile

witness because McDonald did not implicate Chambers.                 Id. at 291-92.

Thus, Chambers’ counsel could not conduct an examination to challenge

McDonald on the circumstances of his repudiation. The trial court based its

ruling on Mississippi’s “voucher rule,” whereby the party who calls a witness

is presumed to vouch for his or her credibility.            Id. at 295-96.   The trial

court also refused to allow Chambers to introduce the three witnesses to

whom McDonald had confessed.                The trial court excluded two witnesses

because their testimony would have been hearsay. Id. at 292-93. The third

witness took the stand but was not allowed to testify about McDonald’s

confession because it was hearsay.5              Id.   The Supreme Court wrote as

follows:

              In sum, then, this was Chambers’ predicament. As a
       consequence of the combination of Mississippi's ‘party witness’ or
       ‘voucher’ rule and its hearsay rule, he was unable either to
       cross-examine McDonald or to present witnesses in his own
       behalf who would have discredited McDonald’s repudiation and
       demonstrated his complicity. Chambers had, however, chipped
       away at the fringes of McDonald’s story by introducing
       admissible testimony from other sources indicating that he had
       not been seen in the cafe where he said he was when the
       shooting started, that he had not been having beer with Turner,
       and that he possessed a .22 pistol at the time of the crime. But
       all that remained from McDonald’s own testimony was a single
       written confession countered by an arguably acceptable
____________________________________________


5
    Mississippi’s statement against interest hearsay exception applied to
statements against pecuniary, not penal, interest. Id. at 299.



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     renunciation. Chambers’ defense was far less persuasive than it
     might have been had he been given an opportunity to subject
     McDonald’s statements to cross-examination or had the other
     confessions been admitted.

Id. at 294.   In addition, “[t]he testimony rejected by the trial court here

bore persuasive assurances of trustworthiness and thus was well

within the basic rationale of the exception for declarations against

interest.”    Id. at 302 (emphasis added).        Thus, Chambers’ inability to

cross-examine McDonald and introduce evidence of his confessions to other

persons denied him a fair trial. Id. at 302-03.

     Pennsylvania case law also recognizes that evidence rules can be

unenforceable where they interfere with a criminal defendant’s right to

present a complete defense. In Commonwealth v. Ward, 605 A.2d 796

(Pa. 1992), our Supreme Court wrote: An accused has a fundamental right

to present evidence so long as the evidence is relevant and not excluded by

an established evidentiary rule. Id. at 797. The defendant was accused and

convicted of burning down his brother’s building after an argument between

the two. Id. The defendant also lived in the building, and thus lost many of

his possessions in the fire.   Id.   The defendant sought to introduce the

testimony of a Red Cross worker, from whom the defendant requested

assistance after the fire. Id. Also, the defendant sought to introduce the

testimony of a police officer, for whom the defendant had been an informant

for eight years, to establish that the defendant’s cooperation with law




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enforcement gave other people a motive to burn down the building in which

the defendant lived. Id. at 798.

             Thus, “[i]f the proffered testimony had been admitted, the
       jury would have been faced with evidence of other parties having
       a motive to commit the crimes and with evidence negating
       appellant’s motive to destroy his own possessions. Either of
       these two points might have raised a reasonable doubt as to
       appellant’s guilt.

Id. at 797. The trial court erred in excluding these two witnesses, because

the defendant’s credibility was a central issue and because the witnesses

could have bolstered the defendant’s credibility.    Id. at 798.   “Hearsay

objections to specific questions should have been dealt with as they arose

during the examination of the witness, not by excluding the witnesses

altogether.” Id.

       Likewise, Appellant relies on Commonwealth v. Spiewak, 617 A.2d

696 (Pa. 1992), in which the trial court excluded some of the rape victim’s

prior statements under the rape shield law.6 The defendant admitted having

sexual intercourse with his stepdaughter, but claimed it occurred only after

she reached her sixteenth birthday. Id. at 697. In a prior custody hearing,

the stepdaughter testified that she had been seduced by a friend of the

defendant’s prior to her sixteenth birthday. Id. The circumstances of the

alleged encounter with the defendant’s friend was very similar to her

accusation against the defendant—an older man induced her to have oral
____________________________________________


6
    18 Pa.C.S.A. § 3104.



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sex by offering her cocaine. Id. Thus, the defendant sought to introduce

that evidence to refute the victim’s accusation that defendant had sex with

her prior to her sixteenth birthday. Id. at 699. He claimed the trial court’s

application of the rape shield law violated his Sixth Amendment right to

confront his accuser.

      The Spiewak Court noted that the rape shield law does not preclude

relevant evidence that may exculpate a criminal defendant.       Id. at 699

(citing Commonwealth v. Majorana, 470 A.2d 80 (Pa. 1983)).               The

Supreme Court acknowledged that the rape shield law serves valid and

important objectives:   “abating the victim’s ordeal at trial, lessening the

possibility of unjust influence by controlling inflammatory evidence tending

to cast the victim as somehow being the cause of the assault, and

encouraging reports of rape.”   Id. at 701.   Nonetheless, the Pennsylvania

Supreme Court cautioned against mechanistic application of evidence rules

where their application will “abridge a defendant’s right of confrontation by

denying admission of highly reliable and relevant evidence critical to his

defense.” Id.

      The victim’s prior testimony that a man other than defendant was

involved in the sexual encounter in question would have supported an

inference that the defendant did not have sex with the victim prior to her

sixteenth birthday. Furthermore, the Supreme Court assessed the victim’s

testimony as “inconsistent” and “confused.”      As such, the trial court’s


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exclusion of evidence of the victim’s prior sexual encounter violated the

defendant’s right to confront his accuser. Id. at 702.

      Appellant argues the trial court erred in concluding Green’s account of

Adams’ confession does not meet the hearsay exception of Pa.R.E.

804(b)(3).    In essence, he argues that application of the rule against

hearsay   rendered   his   trial   unfair   under   the   Sixth   and   Fourteenth

Amendments of the United States Constitutions and Article I, § 9 of the

Pennsylvania Constitution.     Appellant argues that if counsel had relied on

Holmes, Chambers, Ward, and Spiewak, rather than Rule 804(b)(3),

Green’s testimony would have been admitted and the outcome of the trial

probably would have been different. We disagree.

      Holmes is easily distinguishable, as that case concerned a South

Carolina rule permitting the trial court to exclude defense evidence

implicating another person based on the court’s assessment of the strength

of the prosecution’s case. The United States Supreme Court concluded the

rule was arbitrary and not tailored to serve its underlying goals. Appellant

offers no such argument about the rule against hearsay and the exception

set forth in Rule 804(b)(3).

      Chambers is distinguishable on its facts.              There, Mississippi’s

“voucher” rule precluded defendant Chambers from treating McDonald as a

hostile witness even though Chambers had evidence that McDonald

committed the murder.        Likewise, Mississippi’s hearsay exceptions for a


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statement against interest did not apply to statements against penal

interest. Thus, by a mechanical application of several state evidence rules,

the trial court excluded critical exculpatory evidence from multiple sources.

The Chambers Court took care to cabin the breadth of its holding:

             We conclude that the exclusion of this critical evidence,
      coupled with the State's refusal to permit Chambers to cross-
      examine McDonald, denied him a trial in accord with traditional
      and fundamental standards of due process. In reaching this
      judgment, we establish no new principles of constitutional law.
      Nor does our holding signal any diminution in the respect
      traditionally accorded to the States in the establishment and
      implementation of their own criminal trial rules and *303
      procedures. Rather, we hold quite simply that under the facts
      and circumstances of this case the rulings of the trial court
      deprived Chambers of a fair trial.

Chambers, 410 U.S. at 302-03.           The Pennsylvania Supreme Court, in

Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011), briefly addressed

Chambers:

            [T]he United States Supreme Court ruling in Chambers
      was highly dependent upon the facts and circumstances of that
      case, in which an unusual convergence of two state rules of
      evidence resulted in an injustice of constitutional proportions.
      Chambers cannot generally be relied upon to support common,
      straightforward challenges to hearsay rulings that have correctly
      applied state

Id. at 275.

      Instantly, unlike Chambers, the proffered hearsay evidence does not

bear the indicia of reliability necessary for admission as a statement against

interest under Rule 804(b)(3).      As noted above, the trial court found the

indicia of reliability lacking, and this Court affirmed the trial court’s ruling on



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direct appeal.    The trial court therefore did not engage in a mechanistic

application of an exclusionary rule. Rather, the court analyzed the proffered

hearsay and found, under the specific circumstances of this case, that

Green’s account of Adams’ confession was inadmissible.         The issue of

reliability is not properly before us on collateral review, as it has been

previously litigated. 42 Pa.C.S.A. § 9543(a)(3).

     The Pennsylvania Supreme Court’s analysis in Ward and Spiewak

further reinforces this point. The Ward Court did not hold that exclusion of

hearsay evidence violated the defendant’s Due Process rights. Rather, the

Supreme Court held the trial court erred in excluding witnesses, and that

trial court could address hearsay objections question-by-question.     Ward

does not support a conclusion that Due Process requires admission of

hearsay evidence deemed insufficiently reliable to meet the exception of

Rule 804(b)(3).    Likewise, in Spiewak, the Pennsylvania Supreme Court

held that the rape shield law did not preclude admission of “highly reliable

and relevant evidence critical to [the] defense.” Spiewak, 671 A.2d at 701

(emphasis added).

     In addition to the lack of reliability of Green’s hearsay, the record

contains other evidence implicating Appellant and exculpating Adams.      As

noted above, Adams was dismissed as a suspect because he did not match

eyewitness descriptions of the perpetrator, and because DNA evidence

retrieved from the perpetrator’s disguise matched Appellant and did not


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match Adams. Appellant’s assertion of ineffective assistance of counsel fails

because, in light of all the circumstances of this case, the underlying issue

lacks arguable merit.

      Appellant’s fifth and final argument rests on the same legal principles

as his fourth, that is, counsel was ineffective for failing to argue that the trial

court’s exclusion of evidence violated Due Process. In this case, Appellant

sought to present the statement of the victim’s brother, Obataiye Scott

(“Scott”). According to Appellant, the victim described his assailant to Scott

in the hospital before the victim passed away, and Scott located and

murdered one person and shot at least one other person Scott believed

matched the victim’s description.       N.T. Trial, 4/21-27/2009, at 81, 110.

Appellant sought to introduce this evidence—in the form of a recorded

statement Scott gave to police—to establish that he did not meet the

victim’s description of the assailant.         The Commonwealth argued the

statement was irrelevant and inadmissible hearsay.         Id.    Defense counsel

noted that one of Scott’s victims had dreadlocks.           Id.    The trial court

excluded the evidence as irrelevant.            Appellant argues counsel was

ineffective for not arguing for the admissibility Scott’s statement on

constitutional grounds.

      Appellant offers little analysis in support of this argument. We offer

several observations.     First, that one of Scott’s victim’s had dreadlocks is

inculpatory, not exculpatory.     As noted above, eyewitnesses testified that


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the assailant wore a dreadlocks wig. Next, nothing in the record indicates

that more than one assailant was responsible for or conspired in the victim’s

death. Thus, the exculpatory value of Scott’s retaliation against at least two

persons is therefore limited.        We therefore conclude counsel was not

ineffective for failing to argue the admissibility of Scott’s statement on

constitutional grounds.      Furthermore, since Scott’s statement was at least

partially inculpatory of Appellant, it is highly unlikely that the admission of

the statement would have affected the result of the trial.

      In   summary,     we    have   concluded    that   Appellant’s   substantive

arguments lack merit. We therefore affirm the order dismissing his petition.

      Order affirmed.

      Judge Lazarus joins this memorandum.

      Justice Fitzgerald concurs in the result.




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