J-S02023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 ANTWON CHAMBERS,                       :
                                        :
                   Appellant.           :   No. 1691 EDA 2017


                 Appeal from the PCRA Order, May 4, 2017,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0006634-2010,
                         CP-51-CR-0006796-2010.


BEFORE: GANTMAN, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                        FILED APRIL 11, 2019

     Antwon Chambers appeals from the order denying his first petition for

relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-9546. We affirm.

     This Court has previously summarized the pertinent facts as follows:

        The convictions at hand stem from events that occurred
        between November 2009 and January 2010 when
        [Chambers] and his cousin, Derrick Holley (“Holley”),
        engaged in a violent crime spree, robbing and injuring local
        marijuana dealers. On November 19, 2009, Officer Daniel
        Adams responded to a report of a shooting on the 4800
        block of Marshall Street. Upon arrival, he found Derrick
        Holland (“Holland”), a local marijuana dealer, lying on his
        back in the middle of the street. Holland had been shot in
        the head, arm, and leg. Holland’s cell phone was recovered
        from the scene and telephone records indicated that he had
        been in contact with [Chambers] 13 times on the night of
        the shooting. In fact, the last call to Holland’s cell phone
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       was from [Chambers] minutes before they located Holland
       at approximately 8:00 p.m.

          Holland was transported to the hospital where he
       remained in a medically induced coma for a month. After
       Holland awoke from his coma and his ability to communicate
       gradually improved, the police regularly started interviewing
       him. At each interview, Holland identified [Chambers] as
       the man who shot him. At trial, Holland testified that
       [Chambers] was the person who shot him while Holley
       looked on. Holland’s father also testified that his son told
       him [Chambers] was the perpetrator of the crimes.

          On December 30, 2009, [Chambers] contacted
       Christopher Johnson, another local marijuana dealer he
       knew from the neighborhood and arranged for the men to
       meet. [Chambers], accompanied by Holley and another
       masked man, arrived at the agreed upon location.
       [Chambers] put a silver handgun up against the victim’s
       chest and declared, “You know what it’s hitting for,” which
       Johnson understood meant that he was being robbed.
       [Chambers] and Holley took cash and marijuana from him
       and fled.

           On January 15, 2010, Jason Rosario, another local
       marijuana dealer, exited his home on the 2800 block of
       North Franklin Street.      Edward Johnson (“Edward”),
       Rosario’s former high school classmate, drove up in a white
       Chevrolet Monte Carlo with [Chambers] accompanying him.
       The men exited the vehicle and physically pinned Rosario up
       against the wall. [Chambers] pressed the muzzle of his .45
       caliber semi-automatic handgun against Rosario’s chin and
       demanded that he “give [his] shit up” and [threatened] to
       kill Rosario’s mother. Rosario threw his wallet on the
       ground; upon discovering that there was no money inside,
       Edward and [Chambers] left. Johnson, the previous victim,
       watched the robbery from the window of his nearby row
       home. After the robbery, Rosario called the police and
       [Chambers] was then arrested a short distance away where
       he was attempting to dispose of his gun under a car.
       Rosario then positively identified [Chambers] as the
       gunman.

         Based on the statements to police by Rosario, Johnson
       and Holland, [Chambers] was charged with crimes against


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           Johnson and Holland.        While in prison awaiting trial,
           [Chambers] made several phone calls to his mother and
           girlfriend that were recorded by prison officials. In the calls,
           [Chambers] urged his girlfriend to “mak[e] sure people in
           the neighborhood talk to the victims of these crimes” and
           “make sure you have my boys go talk to him,” and he urged
           his mother to “make sure you go talk to their moms to keep
           them, from coming to court.

Commonwealth v. Chambers, 69 A.3d 1295 (Pa. Super. 2013), unpublished

memorandum at 1-4 (footnotes and citations omitted).1

         The Commonwealth charged Chambers at two separate docket numbers

regarding the crimes committed against Holland and Johnson, including

attempted murder, aggravated assault, criminal conspiracy, possession of an

instrument of crime, and two firearm violations.          Prior to trial, the court

granted the Commonwealth’s motion to consolidate the cases, pursuant to

Pa.R.Crim.P. 582(a)(1), and to admit other acts evidence, pursuant to Pa.R.E.

404(b)(2). A jury trial began on October 18, 2011. Among other evidence,

the Commonwealth presented the testimony and statements to police of

Holland, and the statements to the police of Johnson and Rosario.             Both

Johnson and Rosario disavowed their prior statements while on the stand.

Chambers also stipulated to the admission of his recorded prison telephone

calls.

____________________________________________


1 Johnson also reported a fourth robbery to police. Johnson claimed that
Chambers and Holley in the early fall of 2009, robbed a drug dealer named
“Tito,” shooting him six times and stealing marijuana from him. See
Chambers, unpublished memorandum at 3, n.2. Holley died from a fatal
gunshot wound two months prior to trial. See id., at 4, n.5.


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       On October 21, 2011, the jury convicted Chambers of all the charges.

On December 16, 2011, the trial court sentenced Chambers to an aggregate

term of 27 ½ to 55 years of imprisonment. Chambers filed a timely appeal to

this Court. Chambers raised four issues, including a claim that the trial court

erred in denying the motion for mistrial he sought after the prosecutor asked

Johnson if threats from people in the neighborhood had compelled him to

recant his statements to police.           Finding no merit to any of Chamber’s

contentions, we affirmed his judgment of sentence on March 19, 2013.

Chambers, supra. Chambers did not seek further review.

       On January 16, 2014, Chambers filed a timely PCRA petition. The PCRA

court appointed counsel. PCRA counsel filed an amended petition on July 29,

2015. On April 5, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of its

intention to dismiss Chamber’s PCRA petition without a hearing. Chambers

filed a response. By order entered May 4, 2017, the PCRA court dismissed

the petition. This appeal followed.2 Both Chambers and the PCRA court have

complied with Pa.R.A.P. 1925.

       Chambers raises the following issues:

          A. Did the PCRA court err when it dismissed Chambers’
             PCRA petition, as Chambers was denied effective
             assistance of counsel, due to trial counsel failing to object
             to the admission of the Commonwealth’s Pa.R.E. 404(b)

____________________________________________


2Chambers filed a single notice of appeal that included both docket numbers
on May 17, 2017. Thus, our Supreme Court’s decision in Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018), is inapplicable.


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            prior bad acts evidence (the alleged robbery of Rosario),
            which was not included in the trial of the instant matter?

         B. Did the PCRA court err when it dismissed Chambers’
            PCRA petition, as Chambers was denied effective
            assistance of counsel, due to trial counsel failing to object
            to the erroneous cautionary instruction given by the trial
            court regarding Chambers’ motion for a mistrial based on
            inadmissible testimony referring to witness intimidation
            and subsequent trial court instruction?

See Chambers’ Brief at 2.

      Our scope and standard of review is well settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

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

(citations omitted).

      The PCRA court has discretion to dismiss a petition without a hearing

when the court is satisfied that there are no genuine issues concerning any

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

and no legitimate purpose would be served by further proceedings. To obtain

a reversal of a PCRA court’s decision to dismiss a petition without a hearing,

an appellant must show that he raised a genuine issue of material fact which,

if resolved in his favor, would have entitled him to relief, or that the court




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otherwise abused its discretion in denying a hearing.       Commonwealth v.

Blakeney, 108 A.3d 739, 750 (Pa. 2014).

         Both of Chambers’ issues allege the ineffective assistance of trial

counsel. To obtain relief under the PCRA premised on a claim that counsel

was ineffective, a petitioner must establish, by a preponderance of the

evidence, that counsel's ineffectiveness so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.     Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).

“Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that: (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) counsel’s

act or omission prejudiced the petitioner. Id. at 533.

         As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”       Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

         As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

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A.2d 882, 886 (Pa. 1988).        Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).            A petitioner

asserting ineffectiveness based upon trial strategy must demonstrate that the

“alternatives not chosen offered a potential for success substantially greater

than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.

1993). “We do not employ a hindsight analysis in comparing trial counsel’s

actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at

707. A PCRA petitioner is not entitled to post-conviction relief simply because

a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d

576, 582 (Pa. Super. 1995).

       As to the third prong of the test for ineffectiveness, “[p]rejudice is

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

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine

confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

       Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may   proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

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prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

      In his first claim, Chambers argues that, although the trial court gave a

limiting instruction when Rosario testified, “Trial counsel should have objected

to the admission of this testimony in the first place, as the probative of this

evidence was outweighed by its potential for unfair prejudice.” Chambers’

Brief at 22. According to Chambers:

         The allegation involving [Rosario] was that he was robbed
         by [Chambers]. This allegation, of course, was not proven
         beyond a reasonable doubt before nor after the trial in the
         instant matter, as no charges involving this alleged Robbery
         were ever brought against [Chambers]. The only possible
         reason for calling [Rosario] to testify against [Chambers]
         was to inflame the jury and to convince them that
         [Chambers’] character was such that he was inclined to
         commit acts of violence – i.e. Attempted Murder and
         Robbery.

Chambers’ Brief at 22-23.      Chambers asserts that, “without [Rosario’s]

testimony, it is likely that [he] would not have been found guilty in this

matter.” Id. at 23 (emphasis in the original). We cannot agree.

      “Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.”   Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.

2002). “An abuse of discretion is not merely an error of judgment, but is

rather the overriding or misapplication of the law, or the exercise of judgment

that is manifestly unreasonable, or the result of bias, prejudice, ill-will or

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partiality, as shown by the evidence of record.” Commonwealth v. Harris,

884 A.2d 920, 924 (Pa. Super. 2005).

     The admissibility of prior bad acts of a defendant is governed by

Pennsylvania Rule of Evidence 404(b), which reads as follows:

        Rule 404. Character Evidence; Crimes or Other Acts

                                      ***

           (b)       Crimes, Wrongs, or Other Acts.

          (1) Prohibited uses. Evidence of a crime, wrong, or other
          act is not admissible to prove a person’s character in order
          to show that on a particular occasion the person acted in
          accordance with the character.

           (2) Permitted Uses. This evidence may be admissible
           for another purpose, such as proving motive,
           opportunity, intent, preparation, plan, knowledge,
           identity, absence of mistake or lack of accident. In a
           criminal case this evidence is admissible only if the
           probative value of the evidence outweighs its potential
           for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

     “[E]vidence of prior crimes is not admissible for the sole purpose of

demonstrating    a    criminal   defendant’s   propensity   to   commit   crimes.”

Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa. Super.

2004) (en banc).      Nevertheless, “[e]vidence may be admissible in certain

circumstances where it is relevant for some other legitimate purpose and not

utilized solely to blacken the defendant’s character.”           Id.   Specifically,

evidence of other crimes or bad acts is admissible if offered for a non-

propensity purpose, such as proof of an actor’s knowledge, plan, motive,


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identity, or absence of mistake or accident. Commonwealth v. Chmiel, 889

A.2d 501 (Pa. 2005). When offered for a legitimate purpose, evidence of prior

crimes or bad acts is admissible if its probative value outweighs its potential

for unfair prejudice. Commonwealth v. Hairston, 84 A.2d 657 (Pa. 2014).

      Chambers’ argument ignores the fact that, as noted above, prior to trial,

the trial court granted the Commonwealth’s motion to admit evidence of his

robbery of Rosario on January 15, 2010.

      Moreover, the PCRA court agreed with the trial court’s pretrial ruling

that the evidence of the Rosario robbery was probative of a common plan,

scheme, design and identity of Chambers due to the many similarities in the

perpetration of the crimes.     See PCRA Court Opinion, 12/4/17, at 5.        In

addition, the court found that the potential prejudicial impact did not outweigh

“the strong probative” value.    Id.    Finally, the PCRA court found that any

prejudicial impact was further diminished by the trial court’s cautionary

instruction to the jury. Id. at 6.

      Our review of the record supports the PCRA court’s conclusions. The

Commonwealth presented evidence at trial that Chambers committed a series

of robberies of local marijuana dealers.          Although Rosario was one of

Chambers’ victims, the Commonwealth, for whatever reason, chose not to

prosecute Chambers for this incident.           Nevertheless, its occurrence was

probative of Chambers’ identity and pattern of crime. The trial court cautioned

the jury as to the limited purpose for Rosario’s testimony:




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         You have heard evidence tending to prove that [Chambers]
         was guilty of robbery of [Rosario] in January 2010, a matter
         of which he has not been tried as of today. The evidence is
         before you for a limited purpose; that is, for the purpose of
         tending to prove a common scheme, plan, design, identity
         or motive and also to show that [Chambers] has access to
         weapons. This evidence must not be considered by you in
         any way other than for the purposes I stated. You must not
         regard this evidence as showing that [Chambers] is a person
         of bad character or criminal tendencies from which you may
         be inclined to infer guilt.

N.T., 10/20/11, at 68-69. It is well settled that juries are presumed to follow

the court’s instructions. Commonwealth v. Windslowe, 158 A.3d 698, 713

(Pa. Super. 2017).

      In addition, we note that Chambers’ bare assertion of prejudice is

insufficient to meet his burden for post-conviction relief. This is especially

true where, as here, ample evidence supported Chambers’ conviction for

crimes against Holland and Johnson independent of Rosario’s testimony. In

Holland’s trial testimony, and Johnson’s prior statements to police and/or

preliminary hearing testimony, both men unequivocally identified Chambers

as the perpetrator of the crimes committed against them. Thus, Chamber’s

first ineffectiveness claim fails.

      In his second claim of ineffectiveness, Chambers argues that trial

counsel was ineffective for failing to object to a cautionary instruction given

by the trial court once the court denied Chambers’ motion for mistrial. The

exchange that prompted the motion for mistrial occurred while the prosecutor

was questioning Johnson on direct examination. After Johnson had recanted



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his written statements to the police in which he identified Chambers as one of

his robbers, the following exchange occurred:

            [THE PROSECUTOR]: And isn’t it true that you were
         being threatened and harassed in your neighborhood?

            [TRIAL COUNSEL]: Objection.

            THE COURT: He can ask the question.

            A. No.

            [THE PROSECUTOR]: No, it’s not true? Isn’t it true that
            you were shot at a few months ago?

            [TRIAL COUNSEL]: Objection.

            A. No.

            [THE PROSECUTOR]: It’s not true? You weren’t shot at?
            So if your mother told me about that, she would not be
            telling the truth?

            [TRIAL COUNSEL]: Objection.

            THE COURT: Overruled.

            A. I don’t know.

            [THE PROSECUTOR]: Isn’t it true that several different
            men have approached you who are friends of
            [Chamber’s] –

            [TRIAL COUNSEL]: Objection.

            [THE PROSECUTOR]:        (Continued) – and called you a
            snitch?

            [TRIAL COUNSEL]: Judge, objection, and I’m asking for
            a mistrial.

N.T., 10/19/11, at 91-92.

      As noted above, in his direct appeal, we rejected Chambers’ claim that

the trial court erred in denying his motion for mistrial:


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            [Chambers] argues that the trial court erred in denying
         his motion for a mistrial sought after the prosecutor asked
         Johnson if threats from people in the neighborhood had
         compelled him to recant his statements to the police about
         [Chambers]. The trial court denied [Chambers’] request for
         a mistrial but essentially sustained the objection and
         granted his request for a curative instruction. No relief is
         due.

Chambers, unpublished memorandum at 9 (citations omitted).

      After noting our standard of review, we continued:

             Presently, the trial court addressed the issue by
         concluding that this isolated comment combined with the
         immediate curative instruction did not sufficiently prejudice
         [Chambers] so as to deny him a fair trial. The defense had
         stipulated to the admission of prison recordings of phone
         calls [Chambers] had made to his girlfriend and mother,
         urging that they make “sure people in the neighborhood talk
         to the victims of these crimes,” “make sure you have my
         boys talk to him,” and “make sure you go talk to their moms
         to keep them from coming out.” Again, Johnson recanted
         his statements to the police regarding [Chambers’]
         involvement in the gunpoint robbery and Johnson refused
         to cooperate on the witness stand, thus, the prosecutor
         inquired about witness intimidation by referring to the
         transcripts of Johnson’s preliminary hearing testimony.
         Such did not have the unavoidable effect of depriving
         [Chambers] of a fair and impartial trial. Any prejudice to
         [Chambers] was effectively cured by the court’s immediate
         cautionary instructions, which [Chambers] did not object to.

Id. 10 (citations omitted).

      Chambers now claims that trial counsel was ineffective for failing to

object to the trial court’s curative instruction, which read as follows:

            THE COURT: All right. In the questioning of [Johnson],
         the [prosecutor] made reference to a shooting that took
         place a few months ago as well as information that was
         received about the shooting from [Johnson’s] mother. You


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         are to disregard these questions in your determination of
         whether the Commonwealth has proven [Chambers] guilty
         beyond a reasonable doubt.

            Questions by attorneys are not evidence for your
         consideration.

N.T., 10/19/11. 100-01.

      According to Chambers, the trial court’s instruction “did not inform the

jurors that they were not to use this testimony as probative of [Chambers’]

guilt in this matter nor as a blemish on is character. As this is the case, this

instructive was not curative at all.”    Chambers’ Brief at 26 (emphasis in

original).   Chamber further contends that, because trial counsel failed to

object to the instruction, “as a result of the admission of this testimony,

[Chambers] did not receive a fair trial.” Id.

      Citing this Court’s reasoning as reproduced supra, the PCRA court

rejected this ineffectiveness claim because the “objection would have been

fruitless because the claim is without merit.” PCRA Court Opinion, 12/4/17,

at 7. We agree.

      Initially, we note that Johnson answered “no” or “I don’t know” to every

question posed by the prosecutor. Thus, there was no prejudicial “testimony”

to caution the jury about. Rather, as noted in the above instruction, the trial

court cautioned the jury that questions posed by attorneys are not evidence.

As we noted in Chambers’ direct appeal, in both its preliminary and closing

instructions, the trial court had reiterated this admonition. See Chambers,

unpublished memorandum at 11, n.6. Once again, our case law holds that



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juries are presumed to follow the trial court’s instructions.   Windslowe,

supra.   Therefore, we agree that the trial court would have denied any

objection made by trial counsel. Chambers’ second ineffectiveness claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/19




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