J-S21025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARTELL HERRIOTT                           :
                                               :
                       Appellant               :   No. 1360 WDA 2017

                  Appeal from the PCRA Order August 18, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0010556-2011



BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                   FILED MAY 10, 2018

        Martell Herriott (Appellant) appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        In 2012, a jury convicted Appellant of first-degree murder and carrying

a firearm without a license.1        The trial court sentenced Appellant to life in

prison without parole for the first-degree murder conviction, and imposed no

further penalty on the firearms conviction.




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1   18 Pa.C.S.A. §§ 2502(a), 6106(a)(1).
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      Appellant filed a direct appeal challenging, inter alia, the trial court’s

admission of evidence regarding two items unrelated to the murder: a firearm

Appellant had discarded during a police chase, and an extended magazine

subsequently recovered along the route of the chase (other crimes evidence).

A panel of this Court affirmed Appellant’s judgment of sentence, and our

Supreme Court denied Appellant’s petition for allowance of appeal on April 12,

2016. See Commonwealth v. Herriott, 358 WDA 2013 (Pa. Super. Sept.

23, 2014) (unpublished memorandum), appeal denied, 136 A.3d 979 (Pa.

2016).

      On December 1, 2016, Appellant filed a timely pro se PCRA petition.

The PCRA court, who also sat as the trial court, appointed counsel. Appellant

subsequently filed a counseled, amended PCRA petition that challenged the

effectiveness of trial counsel for failure to object to the trial court’s jury

instruction on the other crimes evidence. On August 18, 2017, the PCRA

court convened a hearing. Attorney Robert Foreman (Trial Counsel) appeared

as the only witness.       Trial Counsel’s testimony included the following

responses to questioning by the Commonwealth:

      Q.    [I]f there wasn’t a jury instruction, the jury would be left to
            question how they would treat this evidence, right?

      A.    That’s fair.

      Q.    So, you would be letting the jury speculate about how to
            treat this evidence, right, if there was no instruction?

      A.    That’s correct.

      Q.    And one of the ways that the jury could speculate would be
            against your client, right?

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      A.     Yes.

      Q.     So, you would rather the jury speculate to the detriment of
             your client th[a]n request this specific jury instruction,
             correct?

      A.     No. I would not want the jury to speculate rather than follow
             the law if that’s the question as I understand it.

                                   *    *    *

      Q.     So, do you think that the instruction was proper or not
             proper?

      A.     As the evidence came in, it is my opinion for whatever it’s
             worth that it was proper to give an instruction limiting the
             evaluation of that evidence to what the [trial court] had
             already ruled was the proper and limited purpose.

      Q.     So, that’s why you didn’t object, right?

      A.     Yes.

N.T., 8/18/17, at 13-15.

      Appellant’s counsel questioned Trial Counsel:

      Q.     So just to clarify, you had argued pre-trial, during the trial, that
             the evidence should not come in, correct?

      A.     Yes.

      Q.     And at the point of the jury instruction, you are saying that you
             didn’t object to it because it was a limiting instruction with regard
             to evidence that you argued should not come in at all?

      A.     That’s correct.

Id. at 15.

      The PCRA court then referenced Appellant’s jury trial, including Trial

Counsel’s objection to the instruction during the charging conference and his

subsequent negative response when asked if he had any exceptions to the



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charge prior to the jury’s release for deliberation. Id. at 18-19. The PCRA

court asked Trial Counsel:

      Q.    And the option you chose was to allow the [trial court] to
      g[i]ve the limiting instruction that [it] gave?

      A.    Yes, sir.

      Q.     And you made that decision as a tactical decision as opposed
      to telling the [trial court] to give no instruction for concern that
      the jury may use the evidence improperly?

      A.    Yes, sir.

Id. at 20-21. The PCRA court ultimately denied Appellant’s petition from the

bench and issued an order that same day. Id. at 34.

      Appellant filed a timely appeal and complied with the PCRA court’s order

to file a concise statement of errors complained of on appeal pursuant to Rule

1925(b) of the Pennsylvania Rules of Appellate Procedure. The PCRA court

then issued a Rule 1925(a) opinion.

      On appeal, Appellant presents two issues for review:

      I. ARE [APPELLANT’S] CLAIMS FOR RELIEF PROPERLY
         COGNIZABLE UNDER THE POST-CONVICTION RELIEF ACT?

      II. DID THE [PCRA] COURT ABUSE ITS DISCRETION IN DENYING
          THE PCRA PETITION, INSOFAR AS [APPELLANT] ESTABLISHED
          THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
          OBJECT TO THE INADEQUATE JURY INSTRUCTION REGARDING
          THE OTHER CRIMES EVIDENCE?

Appellant’s Brief at 4.




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       Appellant’s issues are interrelated.2 However, before we proceed to a

merits analysis, we recognize the Commonwealth’s assertion that the law of

the case is “binding on subsequent decisions of this Court between these

parties in this case.” Commonwealth Brief at 28-29, citing Commonwealth

v. Tilghman, 673 A.2d 898, 903 n.8 (Pa. 1996) (“‘It is hornbook law that

issues decided by an appellate court on a prior appeal between the same

parties become the law of the case and will not be reconsidered’ on a

subsequent appeal on another phase of the same case.”).

       This Court, in reviewing Appellant’s direct appeal, stated:

       Appellant claims that the trial court abused its discretion in
       admitting evidence pertaining to other crimes which showed that,
       approximately one month after the victim’s shooting, Appellant
       discarded a loaded gun and an extended magazine during a police
       chase. Appellant argues that because the gun was not used in the
       shooting, and because it was not proven that the magazine was
       used in the shooting, this evidence was irrelevant and prejudicial
       and therefore should not have been admitted at trial.

Herriott, 358 WDA 2013, at *7. We then cited prevailing legal authority and

concluded that the trial court did not abuse its discretion in admitting the other

crimes evidence. We explained:



____________________________________________


2 In his concise statement, Appellant presented only one issue – the second
issue stated in his appellate brief and quoted above. See Appellant’s Rule
1925(b) Statement, 10/11/17, at 2-3 (unnumbered).                     Pa.R.A.P.
1925(b)(4)(v) provides that “[e]ach error identified in the Statement will be
deemed to include every subsidiary issue contained therein which was raised
in the trial court . . .” The PCRA court addressed the one issue of Trial
Counsel’s alleged ineffectiveness for failing to object to the jury instruction.
PCRA Court Opinion, 11/16/17, at 5.

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      [I]t is evident that Appellant is not entitled to relief on his [other
      crimes] claim. As the trial court observed, the discarded gun and
      magazines were relevant to connect Appellant with the crimes at
      issue because: (1) the Commonwealth’s expert testified that the
      victim was shot with a handgun of the same caliber; and, (2) the
      recovered magazine housed the same number of rounds that
      would have been left after a 15–round volley (the number of shell
      casings recovered at the crime scene one month earlier).
      Furthermore, no unfair prejudice emanated from the
      admission of this evidence since the trial court instructed
      the jury that the proof should be considered for
      identification purposes only and that the gun was not used
      to kill the victim.

Id. at *6 (emphasis added).

      While mindful of the foregoing, we also recognize that we are “reviewing

the   instant   issue      under   a   different   jurisprudential   framework.”

Commonwealth v. Domek, 167 A.3d 761, 766 (Pa. Super. 2017).                    In

Domek, we declined to apply the law of the case in a PCRA appeal, explaining:

      We observe that this Court’s previous ruling, that the evidence
      proffered by the Commonwealth was sufficient to support
      Appellant’s conviction, does not constitute the law of the case for
      our present purposes. On direct appeal, our standard of review
      required us to view the evidence in the light most favorable to the
      Commonwealth as verdict winner. We are not guided by that
      principle herein, since our assessment is centered upon
      considering the strength of the evidence presented against the
      prejudice caused by counsel’s ineffectiveness.

Id. (citations omitted).

      Here, we are similarly considering Appellant’s collateral assertion of

counsel’s ineffectiveness. Appellant argues that Trial Counsel was ineffective

for failing to preserve an objection to the trial court’s limiting instruction on

other crimes evidence.      Specifically, Appellant contends that Trial Counsel



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“could not have had a reasonable basis for not timely objecting to the

inappropriate permissive inferences contained in the charge,” and that “[b]ut

for counsel’s failure to preserve his objection to the court’s unreasonable jury

instructions, [Appellant] would have been acquitted, or adjudged guilty of a

lesser degree of homicide.” Appellant’s Brief at 23-25.

             We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      A claim for ineffective assistance of counsel is cognizable under the

PCRA pursuant to 42 Pa.C.S.A. § 9543(a)(2)(ii). In order to obtain relief on

an ineffectiveness claim:

         a petitioner must establish: (1) the underlying claim has
         arguable merit; (2) no reasonable basis existed for counsel’s
         actions or failure to act; and (3) petitioner suffered
         prejudice as a result of counsel’s error such that there is a
         reasonable probability that the result of the proceeding
         would have been different absent such error.

      Trial counsel is presumed to be effective, and Appellant bears the
      burden of pleading and proving each of the three factors by a
      preponderance of the evidence.



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Commonwealth v. Barndt, 74 A.3d 185, 191 (Pa. Super. 2013) (citations

omitted).    “A court is not required to analyze the elements of an

ineffectiveness claim in any particular order of priority; instead, if a claim fails

under any necessary element of the ineffectiveness test, the court may

proceed to that element first.” Commonwealth v. Tharp, 101 A.3d 736,

747 (Pa. 2014) (citations omitted).

      Generally, counsel’s assistance is deemed constitutionally
      effective if he chose a particular course of conduct that had
      some reasonable basis designed to effectuate his client’s
      interests. Where matters of strategy and tactics are concerned,
      a finding that a chosen strategy lacked a reasonable basis is not
      warranted unless it can be concluded that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued.

Commonwealth v. Spotz, 84 A.3d 294, 311–12 (Pa. 2014) (citations and

quotations omitted).

      In order to preserve a challenge to a particular jury instruction:

      [a] specific and timely objection must be made . . . Failure to do
      so results in waiver. Generally, a defendant waives subsequent
      challenges to the propriety of the jury charge on appeal if he
      responds in the negative when the court asks whether additions
      or corrections to a jury charge are necessary.

Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (citations

omitted); see also Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super.

2014) (waiver existed even though defendant objected to instruction at the

charging conference); Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(c).

      Here, the PCRA court determined:



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       [Trial Counsel] cited a reasonable basis for not objecting to the
       instruction after the [trial court] charged the jury. [Trial counsel]
       made a tactical decision and chose the option to allow the [trial
       court] to give a limiting instruction so that the jury would be given
       some guidance as to how the other crimes evidence should be
       properly used as opposed to no instruction at all.

PCRA Court Opinion, 11/16/17, at 18. The PCRA court concluded that Trial

Counsel “chose the option that would be least harmful to his client, the

limit[ing] instruction.” Id. at 19.

       Based on the foregoing, we discern no error in the PCRA court’s

conclusion that Appellant failed to prove there was no reasonable basis for

trial counsel not objecting to the instruction after it was given.3 Trial Counsel

testified that allowing the limiting instruction was strategic and designed to

effectuate his client’s interests by protecting Appellant from improper

speculation. See N.T., 8/18/17, at 15, 20-21. Appellant does not argue that

the alternative (i.e., objecting or removing the instruction entirely) offered a

potential for success greater than the course actually pursued. See Spotz,

84 A.3d at 311-12. Instead, Appellant devotes a significant portion of his brief

attempting to relitigate the trial court’s admission of other crimes evidence –

an issue which this Court has already addressed on direct appeal, and which

invokes the law of the case. See, e.g., Appellant’s Brief at 18 (“Instantly, it


____________________________________________


3  While trial counsel objected to the instruction at the charging conference,
he waived this objection by not taking specific exception to the language of
the instruction after it was given outside the presence of the jury before
deliberation. Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(c); see Parker, 104 A.3d
at 29.

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is patently unreasonable to infer that [Appellant’s] possession of an unrelated

firearm, and possibly a magazine that . . . may not have been used in the

shooting. . . . is evidence of guilt.”); Herriott, 358 WDA 2013, at *7-10

(holding that “[s]ince the trial court did not abuse its discretion in admitting

this [other crimes] evidence, Appellant is not entitled to relief. . . .”).

Accordingly, Appellant’s claim fails under the reasonable basis element of the

ineffectiveness test.4

       For the above reasons, we affirm the order denying Appellant’s amended

PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2018




____________________________________________


4 We add that Appellant’s claim would additionally fail because, as stated by
the PCRA court, “there is no reasonable probability that the outcome of the
proceedings would be different. The eyewitness testimony alone provided
overwhelming evidence of [Appellant’s] guilt.” PCRA Court Opinion, 11/16/17,
at 21.

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