J-S27021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JEROME KING

                            Appellant                   No. 2533 EDA 2014


                 Appeal from the PCRA Order of August 29, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0706191-2005


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED JULY 28, 2015

        Appellant, Jerome King, is serving a life sentence for murder. King’s

PCRA1 case returns to this Court for the second time. In his prior appeal, we

held that the PCRA court erred in granting King and his codefendant,

Esheem Haskins, new trials.          On remand, the PCRA court denied relief on

King’s remaining claims. Upon review, we affirm in part, vacate in part, and

remand.

        In King’s direct appeal, we stated the background of the case as

follows:



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
J-S27021-15


     On February 2, 2005, [King] came up from behind Nathaniel
     Giles (hereinafter, the victim) and, without notice, shot him in
     the back of the head. Notes of Testimony (hereinafter, N.T.) at
     6/19/06 at 190.       Accompanying [King] was Haskins, who
     encouraged [King] to “Shoot him. Shoot him.” Id. at 217.
     After [King] shot the victim in the head, he stepped over the
     victim and shot him in the neck. Id. at 194. The bullet fired
     into the victim’s head was shot from approximately one foot
     away and entered through the right ear, and ultimately lodged in
     the other side of the victim’s skull. Id. at 129, 132. The second
     shot was fired approximately two feet from the victim’s body.
     Id. at 133. This shot split the victim’s cervical spine in two, and
     also ripped through the victim’s jugular vein and carotid artery.
     Id. at 134.      The victim was pronounced dead at Temple
     University Hospital. Id. at 126.

     On July 15, 2004, approximately six and a half months before he
     was murdered, the victim had gone to the Philadelphia Office of
     the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
     to speak with Special Agent Doerrer about the purchase of a
     Ruger .45 caliber handgun that had been used to kill Faheem
     Thomas–Childs.[fn4] N.T. 6/19/06 at 97–100. The victim was a
     straw purchaser for his neighbor, [King]. Id. at 107, 118. The
     victim admitted to Doerrer that one of the guns he purchased for
     the defendant was a .45 caliber [firearm]. Id. at 227. In his
     statement, the victim also admitted that he purchased the gun
     used to kill Faheem Thomas–Childs in May of 2003. Id. at 105.
     Subsequently, in March of 2006, the defendant admitted to a
     prison cell-mate, Craig Lindsey, that he had previously owned a
     gun used by Kennell Spady, one of the men arrested for the
     Faheem Thomas–Childs murder. N.T. 6/20/06 at 226–227. In
     fact, Faheem Thomas–Childs was killed by a bullet fired from a
     .45 caliber gun which was subsequently traced to Giles as the
     purchaser. Id. at 245.

        [FN4.] This was a very high profile case in Philadelphia,
        involving the killing of a 10 year old child during his
        morning walk to school.      Faheem Thomas–Childs was
        caught in the crossfire between warring drug dealers and
        was fatally struck by one of approximately 50 bullets fired
        that morning.

     Earlier in the evening on February 2, 2005, at around 8:30 p.m.,
     S.T. and F.J.[fn5] entered a Chinese [food] store on the corner of
     Stillman and Cambria Streets in Philadelphia.        Id. at 176.

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     Intending to carry out their food, the two girls had to wait as its
     preparation was not yet complete. Id. at 178. As they waited,
     Ms. T. exchanged pleasantries with the victim, whom she knew
     through another person. Id. at 180. Ms. T. then saw the victim
     leave the store on the corner of Stillman and Cambria Streets
     and begin to speak with another person, later identified as
     Khalief Alston. Id. at 181; 223. Ms. J. also witnessed the victim
     and Mr. Alston having a conversation outside the Chinese [food]
     store. N.T. 6/20/06 at 37.

        [FN5.] At the time of trial, Ms. T. and Ms. J. were aged 14
        and 16, respectively. N.T. 6/19/06 at 175; N.T. 6/20/06
        at 28. Their full names appear in the certified record.

     While waiting for their food, both Ms. T. and Ms. J. noticed a car
     drive up Stillman Street to the corner where it intersected with
     Cambria Street.[fn6] After the car stopped for an unusually long
     time, the girls observed it make a left onto Cambria Street. N.T.
     6/19/06 at 183–184; N.T. 6/20/06 at 34–37. Shortly thereafter,
     both Ms. T. and Ms. J. noticed two males approach the corner of
     Stillman and Cambria Streets in the direction from which the car
     they observed had just driven. Id. at 186; N.T. 6/20/06 at 39.
     Each identified these two men as the codefendants. Id. at 186;
     N.T. 6/20/06 at 40, 71.

        [FN6.] Crime scene investigators testified that both the
        Chinese [food] store and the scene of the crime on the
        corner of Stillman and Cambria Streets were well lit. N.T.
        6/19/06 at 162–163. It was possible to see both into the
        store, and out of it. N.T. 6/20/06 at 314–318.

     As the co-defendants approached the victim from behind, [King]
     shot him in the head. Id. at 188, 190; N.T. 6/20/06 at 39.
     [King] fired at the victim from a distance close enough to reach
     out and touch him. N.T. 6/19/06 at 190. In the process of the
     shooting of the victim, Ms. T. was able to see Haskins’[s] entire
     face. N.T. 6/19/06 at 204. Ms. J. saw the defendant from the
     side. N.T. 6/20/06 at 49–50. She also noticed sparks come
     from the black or silver pistol[-]type gun used by the defendant.
     N.T. 6/20/06 at 59–61. After being shot, the victim instantly fell
     over. N.T. 6/19/06 at 193; N.T. 6/20/06 at 41. Ms. J. then saw
     the victim being shot a second time, though she was not sure
     where this shot struck the victim. N.T. 6/20/06 at 62. As [King]
     shot the victim, both girls saw Haskins standing nearby. N.T.
     6/19/06 at 187; N.T. 6/20/06 at 71. Ms. T. heard him scream to


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     [King], “Shoot him. Shoot him.” N.T. 6/19/06 at 217. Though
     she witnessed only the defendant shoot the victim, Ms. J. saw
     Haskins with a gun.[fn7] N.T. 6/20/06 at 75.

       [FN7.] At the scene of the crime, police officers found a
       nine millimeter fired cartridge casing. N.T. 6/20/06 at
       243. A nine millimeter, or .38 caliber, bullet specimen was
       also recovered by the medical examiner from the victim’s
       head. Id.

     After the shooting, everyone fled the scene of the crime. Ms. T.
     watched the co-defendants leave together in a car.           N.T.
     6/19/06 at 194, 209–210. Khalief Alston, with whom the victim
     was talking prior to being shot, ran up Stillman Street. N.T.
     6/19/06 at 207. Startled and frightened for their lives, both
     witnesses also fled and headed to the home of Ms. T. N.T.
     6/19/06 at 207; N.T. 6/20/06 at 47–48. Ms. T. recalled running
     past the victim and seeing him lying motionless, surrounded by a
     lot of blood. N.T. 6/19/06 at 208–209. Ms. J. related that Ms.
     T. had screamed in fear after seeing the shooting and continued
     to cry throughout the ordeal. [N.T.] 6/20/06 at 48. On their
     way to the home of Ms. T., the girls were almost hit by the car in
     which the [co-] defendants were fleeing. Id. at 52.

     Immediately after the crime, Ms. J. went with her aunt to give a
     statement to Homicide detectives.      Id. at 154.     She also
     returned to Homicide on two subsequent occasions.            On
     February 23, 2005, Ms. T. went with her mother to give a
     statement to Homicide detectives.       She also returned to
     Homicide to provide additional information on two subsequent
     occasions.[fn8]

       [FN8.] Ms. T. and Ms. J. both returned to the Homicide
       Division on March 14, 2005[,] and on April 16, 2005, to
       provide additional information about the murder they had
       witnessed. N.T. 6/22/06 at 22, 24, 26–27.

     On April 9, 2005, Detective Ron Dove, then of the Central
     Detectives Division, was working on unrelated matters with his
     partner, Detective Jim Waring, in the neighborhood where the
     victim was murdered. Detective Dove spoke with [King]. N.T.
     6/20/06 at 170–171. Noticing his “black T-shirt with a red stop
     sign on it that said ‘Stop Snitching’ across it”, Detective Dove
     asked him if the T-shirt was a warning. Id. at 175. [King]
     answered “Yes”, and pointed at the top rear of his shirt which
     revealed a drawing of a tombstone with the letters R.I.P. on it.

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       Id. Detective Dove asked him, “Is that what happens to people
       who snitch on you?” Id. He replied, “Yes.” Id.

       Approximately 20 minutes later, at another location in the
       neighborhood, Detective Dove saw Haskins, in [King’s] company,
       and wearing the same “Stop Snitching” T-shirt. Id. at 178–179.

       Upon learning that [King] and Haskins were wanted for murder,
       Detective Dove began looking for them in the neighborhood
       where the victim was killed. N.T. 6/22/06 at 180. He never
       again saw them there. Id. at 181. On May 6, 2005, based on
       information provided to the police, Detectives Dove and Waring
       learned that the co-defendants were staying together in room
       312 of a Holiday Inn hotel on City Line Avenue. N.T. 6/20/06 at
       182–183. The detectives found the two men in that room and
       arrested them for the murder of the victim. Id. at 184.

Commonwealth v. King, 959 A.2d 405, 407-09 (Pa. Super. 2008) (quoting

Trial Court Opinion, 7/18/07, at 1-5).

       Following trial, the jury convicted King of first-degree murder, criminal

conspiracy, and carrying a firearm on a public street in Philadelphia. 2 The

trial court imposed a life sentence followed by a consecutive term of years.

On direct appeal, this Court affirmed in a published opinion.        See also

Commonwealth v. Haskins, 953 A.2d 599 (Pa. Super. 2008) (unpublished

memorandum) (affirming in Haskins’s case).        Notably, we rejected King’s

claims of error in admitting (1) the victim’s statements to a federal

investigator that King solicited him to buy the handgun that killed Thomas-

Childs; and (2) testimony that Detective Dove saw King wearing a “Stop

Snitching” t-shirt.
____________________________________________


2
  18 Pa.C.S.A. §§ 2502(a), 903(a), and 6108, respectively.        Haskins was
convicted of first-degree murder and criminal conspiracy.



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       King and Haskins filed timely first PCRA petitions.           Both petitioners

raised claims that the Commonwealth violated Brady v. Maryland, 373 U.S.

83 (1963), by not disclosing a letter seized from Alston, in which he stated

that Ernest “Ezze” Cannon—and not King and Haskins—shot the victim. The

PCRA court granted new trials to King and Haskins. The Commonwealth’s

appeals     to    this    Court     were       consolidated,   and   we   reversed.3

Commonwealth v. Haskins, 60 A.3d 538, 552 (Pa. Super. 2012), appeals

denied, 78 A.3d 1090 (Pa. 2013).

       On remand, the PCRA court addressed King’s remaining claims. After

briefing and argument, the PCRA court determined that King was not entitled

to post-conviction relief. Therefore, it sent King a Pa.R.Crim.P. 907 notice of

intent to dismiss his PCRA petition without a hearing, and then a final order

dismissing the petition. King appealed, raising eleven issues in his concise

statement of errors complained of on appeal.               The PCRA court issued a

responsive opinion addressing King’s issues.

       Before this Court, King has reduced his assignments of error to five:



____________________________________________


3
  To prevail on a Brady violation claim, a defendant must show “(1) the
evidence was suppressed by the Commonwealth, either willfully or
inadvertently; (2) the evidence was favorable to the defendant; and (3) the
evidence was material, in that its omission resulted in prejudice to the
defendant.” Haskins, 60 A.3d at 547 (citing Commonwealth v. Dennis,
17 A.3d 297, 308 (Pa. 2011)). King’s and Haskins’s Brady violation claims
failed because the Alston letter was not material. Id. at 552.



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       1. After concluding that trial counsel performed deficiently in
          failing to object to the absence of a Kloiber[4] instruction, did
          the PCRA court commit legal error in its prejudice analysis
          where it focused exclusively on the inculpatory aspects of the
          eyewitness testimony without considering its inherent
          weakness or how it was impeached, failed to consider the
          strength of the defense case that at third party was the actual
          killer, and failed to consider how a proper instruction would
          have affected the jury in conjunction with the exculpatory
          evidence concealed by the Commonwealth as found by this
          Court on the prior appeal?

       2. Did the PCRA court err in denying a hearing on the claim that
          trial counsel was ineffective for failing to request an
          instruction on how the jury was to consider evidence that a
          central Commonwealth witness was under investigation for
          serious federal crimes at the time he gave his statement to
          police?

       3. Did the PCRA court err in denying without a hearing the claim
          that prior counsel were ineffective for failing to preserve the
          claim that the trial court erred in restricting [King’s] ability to
          establish that a third party committed this crime?

       4. Did the PCRA court err in denying without a hearing the claim
          challenging prior counsel’s ineffective assistance in failing to
          (a) preserve the trial court’s error in admitting overwhelming
          “prior bad acts” evidence that was irrelevant to begin with or
          whose prejudicial impact far outweighed its minimal relevant
          and (b) request cautionary instructions limiting the jury’s
          consideration of this evidence for the limited purposes for
          which some of it was admitted?

       5. Did the PCRA court err in denying the cumulative impact
          claim?

Appellant’s Brief at 3-4.

       We review the denial of relief under the PCRA “to determine whether

the findings of the PCRA court are supported by the record and free of legal
____________________________________________


4
    Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).



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error.”     Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014)

(quotation omitted).    The PCRA court’s credibility determinations bind the

appellate    court   when   they   are   supported   by   the   record.    See

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).               However, we

review de novo the PCRA court’s legal conclusions. See id.

      A PCRA petitioner is eligible for relief if he pleads and proves by a

preponderance of the evidence that his conviction and sentence resulted

from, among other grounds, “ineffective 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). The petitioner also must prove that

the claim is not previously litigated or waived, and that the failure to raise

the claim previously was not the result of any rational, tactical, or strategic

decision by counsel. Id. § 9543(a)(3) and (4).

      We presume that prior counsel rendered effective assistance. Paddy,

15 A.3d at 442; Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)

(“We . . . presume that counsel is acting effectively.”). A PCRA petitioner

overcomes this presumption by meeting all three prongs of the Pierce test:

“(1) the underlying legal claim has arguable merit; (2) counsel had no

reasonable basis for his or her action or inaction; and (3) the petitioner

suffered prejudice because of counsel’s ineffectiveness.” Paddy, 15 A.3d at

442. “If a petitioner fails to satisfy any prong of the ineffectiveness inquiry,




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a claim of ineffective assistance of counsel will be rejected.” Eichinger, 108

A.3d at 830-31.

      With this framework in mind, we turn to the issues King raises on

appeal.

   1. No Kloiber Charge

      King claims that trial counsel was ineffective for failing to preserve a

claim of error when the trial court did not give a Kloiber charge. The basis

of this claim is F.J.’s failure to identify King as the shooter in her initial

statement to police.    The record shows that trial counsel requested a

Kloiber charge, the trial court denied his request, and trial counsel did not

except to the charge given as required by Pa.R.Crim.P. 647(B).        See N.T.

Trial, 6/21/06, at 3-4; N.T. Trial, 6/22/06, at 258. The PCRA court found

that King’s claim had arguable merit, but that he could not show prejudice.

As set forth below, we find that King’s claim lacks arguable merit.

      A Kloiber charge admonishes the jury about the unreliability of certain

eyewitness identification testimony.    Commonwealth v. Rios, 920 A.2d

790, 804 (Pa. 2007), overruled on other grounds by, Commonwealth v.

Tharp, 101 A.3d 736 (Pa. 2014).        A defendant is entitled to a Kloiber

charge if the witness (1) could not clearly see the defendant; (2)

equivocates in identifying the assailant; or (3) failed to identify the

defendant on one or more prior occasions. Id.; see also Pa. Sugg. Stand.

Jury Instr. (Crim.) 4.07B (setting forth the suggested standard Kloiber

charge), cited with approval in Commonwealth v. Trivigno, 750 A.2d 243,

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253 (Pa. 2000) (Opinion Announcing the Judgment of the Court).                 A

defendant, however, is not entitled to a Kloiber charge if the witness failed

to identify the defendant out of fear of endangerment. Commonwealth v.

Reid, 99 A.3d 427, 449 (Pa. 2014).

      Our case law makes clear that the need for a Kloiber charge
      focuses on the ability of a witness to identify the defendant.
      Our Commonwealth’s decisional law has long held that prior
      inconsistent statements based upon fear of endangerment do
      not equate to a prior failure of ability to identify a defendant.

Id. (emphasis in original). In other words, non- or misidentification out of

fear of reprisal does not concern a witness’s ability to identify the

defendant.

      At trial, F.J. testified that while she and S.T. were inside the Chinese

takeout restaurant, they saw a car drive down Cambria Street, stop for a

few seconds, and then keep going.        Through the restaurant’s plate glass

window, F.J. saw the victim conversing with Alston.        Then, she saw King

approach the victim from behind and shoot him in the head.          Philadelphia

homicide detectives interviewed F.J. on the night of the murder. During the

interview, she described the shooter as a “Black male, 25-27 years old, 6’ to

6’3’’, medium built, brown skin, wearing a black or dark blue skully.” PCRA

Court Opinion, 11/10/14, at 10-11 (quoting Commonwealth’s Trial Exhibit

20). The record reflects that King is much shorter than six feet. See N.T.

Trial, 6/20/06, at 98-100. F.J. testified at trial that during the interview, she

was scared:



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      Q. [by the Commonwealth] Can you tell—before we go into the
      statement, can you tell the ladies and gentlemen of the jury
      what you were thinking when you sat down to speak to a
      Homicide detective in the Homicide Division two hours after the
      shooting? What were you thinking?

      [Counsel for King]: Objection, Your Honor.

      THE COURT: Overruled.

      A. [by F.J.] What was I thinking?

      Q. [by the Commonwealth] Yes.

      A. I was scared. Like, I didn’t want to really say nothing
      because I—it was just—like I was really scared, so . . .

      Q. You said that you were scared and you didn’t want to say
      anything.

      A. ‘Cause I was just too scared to say anything.

N.T. Trial, 60/20/06, at 57.     F.J. was also questioned during redirect

examination about her fear.     During her second interview by Homicide

Division detectives, F.J. was asked whether she had left out details during

her first interview:

      Q. [by the Commonwealth] [Haskins’s counsel] asked you
      questions about whether you were misleading or words to that
      effect. Do you remember being asked questions about this,
      specifically third question down. Were you interviewed here at
      Homicide before? Remember being asked that question?

      A. [by F.J.] Yes.

      Q. Tell the ladies and gentlemen of the jury what you told the
      detectives on April 16th of 2005. Read them your answer.

      A. It say, “Yes.”

      Q. (Reading): Yes. But I was scared because I was there when
      he was shot, and I saw the people who did this.

      Those are the words that you spoke to the detectives?

      A. Yes, it was.

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      Q. Question: Did you tell the entire truth when you were first
      interviewed?

      Answer: No, because I was really scared. I did not want—I did
      not want people to know that I was there, but some neighbors
      saw me out there.

      Is that what you told the detective?

      A. I don’t remember saying that.

N.T. Trial, 6/20/06, at 112-13 (boldface in original).       Philadelphia Police

Officer John Benham went to F.J.’s house the night of the murder to take her

to be interviewed. He testified that, at F.J.’s house, the lights were turned

off and the curtains were drawn. Id. at 152-53. When he finally coaxed F.J.

to come out, she was “very distraught, crying . . . very shaken up[, v]ery

scared.” Id.

      The PCRA court found arguable merit to King’s claim, because during a

sidebar at trial, the Commonwealth conceded that F.J.’s initial statement to

police contained an equivocal identification of the shooter. See PCRA Court

Opinion 11/10/14, at 11 (quoting N.T. Trial, 6/20/06, at 63-64).             We

disagree   with   the    PCRA court’s evaluation,    because—in context—the

Commonwealth was informing the trial judge that F.J. equivocated because

she was scared.         See N.T. Trial, 6/20/06, at 62-68 (“When [F.J.] first

described these events, she was scared.”).

      Thus, a Kloiber charge was inapposite.        F.J. initially equivocated in

identifying King as the shooter because she was scared.           Our case law

makes clear that non-identification out of fear does not equate to an inability

to identify. Reid, supra. There is no evidence that F.J. could not clearly


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J-S27021-15



see King, who she knew from the neighborhood.             The record contradicts

King’s claim that hooded sweatshirts obscured his and Haskins’s faces. See

PCRA Court Opinion, 11/10/14, at 9-10.          Regarding the second and third

circumstances supporting a Kloiber charge, the evidence supports the

Commonwealth’s argument that F.J. did not initially identify King as the

shooter because of fear. Thus, her failure to identify had nothing to do with

her ability to see King. See Reid, supra. Moreover, after her first police

interview, F.J. consistently identified King as the shooter and Haskins as his

accomplice, including at trial.   Therefore, a Kloiber instruction was not

required in King’s case.

      In sum, King’s claim of ineffectiveness regarding counsel’s failure to

seek a Kloiber charge lacks arguable merit. We are not bound by the PCRA

court’s contrary legal conclusion, and we may affirm on any basis supported

by the record. See Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.

Super. 2009). Because King cannot meet the arguable merit prong of the

Pierce test, his first claim fails.    See Eichinger, 108 A.3d at 830-31.

Accordingly, we need not address whether the absence of a Kloiber

instruction prejudiced King.

   2. Jury instruction regarding the victim’s statement

      King next argues the PCRA court erred in denying a hearing on his

claim that trial counsel was ineffective for failing to request an instruction

regarding the statement of the victim.         Specifically, King argues his trial

counsel should have requested the trial court to instruct the jury that the

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victim had a motive to lie when speaking to federal authorities, because the

victim was under investigation for serious federal crimes.

      [ATF] Special Agent Doerrer interviewed Mr. Giles[, the victim,]
      in July 2004 concerning an investigation into the purchase of a
      .45 caliber handgun used in the killing of Faheem Thomas–
      Childs. Following a pretrial evidentiary hearing pertaining to the
      admissibility   of    evidence,   the    trial  court   permitted
      Commonwealth witness Special Agent Doerrer to read Mr. Giles’s
      statement into evidence. The verbatim rendition revealed that:
      (1) [King] solicited Mr. Giles’s assistance on two separate
      occasions to purchase three handguns, a .45 caliber Ruger,
      another .45 caliber pistol, and a .357 caliber Smith & Wesson;
      (2) [King] promised compensation to Mr. Giles in exchange for
      making the purchases as [King] could not pass the background
      checks required to purchase the handguns himself; and (3) Mr.
      Giles was afraid of [King].

King, 959 A.2d at 411 (citing N.T. Trial, 6/19/06, at 120-21).      On direct

appeal, we noted that the victim’s statement, whether true or false, was

evidence of King’s motive to silence the victim by murdering him:

      In the case sub judice, the Commonwealth sought to establish
      [King’s] retaliatory motive for killing Mr. Giles by showing that
      Mr. Giles cooperated in the Thomas–Childs murder investigation
      wherein he revealed potentially incriminating information
      concerning [King]. To that extent, the jurors were not
      asked to believe material details of the two straw arms
      purchases, that is, the truth of the matter asserted, to
      comprehend the probative value of Mr. Giles’s statement.
      Indeed, we concur with the Commonwealth’s premise that the
      evidence was highly relevant to establish the motive for the
      shooting. We therefore conclude that the statement, if it had
      been offered solely as motive, would not have constituted
      hearsay and would have been properly admitted.

Id. at 412 (emphasis added). However, since the jury was given no limiting

instruction, the statement was to be considered for its truth, i.e., as



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hearsay, vis-à-vis admissibility.   Id.   We held that the trial court properly

admitted the statement as proof that King murdered the victim to prevent

him from testifying against King, under the forfeiture by wrongdoing hearsay

exception. See Pa.R.E. 804(b)(6).

      This claim lacks arguable merit. Assuming, for argument’s sake, that

the victim lied to Special Agent Doerrer, those lies do not diminish King’s

motive to murder. Indeed, we concluded as much on direct appeal.          King

killed the victim because of his mere cooperation, not necessarily because he

was truthful in becoming a federal informant. The purpose of impeachment

is to undermine the truthfulness of a witness’s testimony or, as here, a

declarant’s hearsay statement. See Black’s Law Dictionary 820-21 (9th ed.

2009) (defining impeachment, in relevant part, as “the act of discrediting a

witness, as by catching the witness in a lie or by demonstrating that the

witness has been convicted of a criminal offense”).      King repeatedly notes

the jury was never informed how to assess the victim’s bias and motive to

fabricate (because of potential federal charges), but he fails to acknowledge

that the victim’s statement was relevant even if completely fabricated.

      King cites cases concerning an accused’s ability to inquire into a

testifying witness’s pending criminal proof of bias or motive to lie.      See

Appellant’s Brief at 29-32.   For example, Commonwealth v. Evans, 512

A.2d 626, 631 (Pa. 1986), held that trial court erred in limiting the

defendants’ cross-examination of a cooperating coconspirator. Similarly, in

Commonwealth v. LaMassa, 532 A.2d 450, 451 (Pa. Super. 1987), we

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held the trial court erred in refusing an instruction on the Commonwealth’s

principal   witness’s   prior   convictions     for   crimes   of    falsehood.    In

Commonwealth v. Thompson, 739 A.2d 1023, 1030-31 (Pa. 1999), our

Supreme Court found “problematic” the trial court’s instruction that the jury

should not consider a witness’s open criminal cases, though it ultimately

rejected the claim of error.

      In all of these cases, however, the witnesses’ testimony was relevant

for its truth, because it incriminated the defendants.              The coconspirator

Evans placed the defendants at the scene of the armed robbery and

murder. Evans, 512 A.2d at 629. The principal witness in LaMassa was

the victim who testified the defendant kidnapped and robbed him.

LaMassa, 532 A.2d at 450-51. Finally, the witness in Thompson testified

that the defendant confessed to killing the victim for money.            Thompson,

739 A.2d at 1027, 1030.         None of these cases concerned statements that

were relevant regardless of whether they were true—as here.                Again, the

victim’s statement was relevant merely because it existed. The only purpose

for King’s proposed instruction would have been to cast doubt on the truth of

the victim’s statement—a statement relevant even if false.              In sum, this

claim lacks arguable merit.

      King’s claim additionally fails because he cannot show prejudice. The

only prejudice he claims is the inability to impeach the victim’s statement.

King fails to state how the absence of a cautionary instruction undermined




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the jury’s guilty verdict. Therefore, the PCRA court did not err in denying

King a hearing on this claim.

    3. Failing to preserve claim that trial court restricted King’s ability

       to shift guilt to a third party

       Next, King claims the PCRA court erred in denying him the ability to

present testimony, through Khalief Alston, that Ernest Cannon was the

actual murderer.5 Specifically, King claims that trial counsel erred in failing

to object when the trial court excluded evidence of Cannon’s motive to

murder the victim, and of Cannon’s multiple pending murder charges.

Recognizing that the latter evidence is propensity evidence (Cannon

allegedly murdered other people; therefore he murdered Giles in accordance

with his character trait as a murderer), King suggests Cannon’s other acts

must be admitted as a matter of due process so that King could attempt to

exonerate himself. This claim lacks arguable merit.

       “A defendant has a fundamental right to present evidence, so long as

the evidence is relevant and not subject to exclusion under our Rules of

Evidence.”      Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014)

____________________________________________


5
  Alston and Cannon are each currently serving multiple life sentences for
murder. See Commonwealth v. Cannon, 22 A.3d 210, 215 & n.4 (Pa.
2011) (reversing this Court’s granting of a new trial to Cannon);
Commonwealth v. Alston, No. CP-51-CR-0700412-2005, 2013 WL
9863768 (C.P. Phila. Oct. 10, 2013) (denying PCRA relief to Alston in an
unrelated case), aff’d, 107 A.3d 237 (Pa. Super. 2014) (unpublished
memorandum).



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(emphasis added).          In this case, King essentially claims trial counsel

ineffectiveness, because he did not more aggressively use evidence tending

to show that Cannon killed the victim.             “Reverse Rule 404(b) evidence”

refers to a defendant’s use of other acts evidence under Pa.R.E. 404(b) 6 to

show that a third party had committed the crime at issue.            See United

States v. Stevens, 935 F.3d 1380, 1404 (3d Cir. 2001) (construing the

materially similar Fed.R.Evid. 404(b)). No Pennsylvania court has squarely

addressed the use of reverse Rule 404(b) evidence, though several have

mentioned the concept obliquely. See, e.g., Patterson, 91 A.3d at 71-72


____________________________________________


6
    Pennsylvania Rule of Evidence 404(b) provides:

        (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.

        (3) Notice in a Criminal Case. In a criminal case the prosecutor
        must provide reasonable notice in advance of trial, or during trial
        if the court excuses pretrial notice on good cause shown, of the
        general nature of any such evidence the prosecutor intends to
        introduce at trial.

Pa.R.E. 404(b).



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(holding trial court did not err in precluding evidence of a third party’s

motive to commit the crime, because “[a]ppellant offered no evidence to

suggest that [the third party] was charged, let alone convicted, of a crime

that bore substantial similarity to those with which [a]ppellant was

charged”); Commonwealth v. Weiss, 81 A.3d 767, 806-07 (Pa. 2013)

(“[T]he defense may introduce evidence that someone else committed a

crime which bears a highly detailed similarity to the crime with which the

defendant is charged.”) (internal quotation omitted); Commonwealth v.

Chmiel, 889 A.2d 501, 534-35 (Pa. 2005) (holding that trial court properly

precluded defendant from questioning witness concerning prior burglary

which did not fall within permitted purposes of Rule 404(b) but merely

tended to establish action in conformity with the prior act).

      King unabashedly admits that he believes trial counsel should have

introduced evidence of Cannon’s murder charges to show that Cannon had

the propensity to murder, and therefore killed the victim. See Appellant’s

Brief at 40.   Rule 404(b)(1) expressly prohibits this tactic, and   Stevens,

cited by King, is both inapposite and distinguishable.

      As explained herein, [the appellant] misreads Stevens, and we
      write to clarify that Rule 404(b)’s proscription against
      propensity evidence applies regardless of by whom, and
      against whom, it is offered.        Under Stevens, we grant
      defendants more leeway in introducing “bad acts” evidence
      under one of the Rule 404(b) exceptions—requiring only that its
      probative value is not substantially outweighed by Rule 403
      considerations such as unfair prejudice, undue delay or
      confusion of the issues.      But Stevens did not afford
      defendants more leeway in admitting propensity evidence


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      in violation of the prohibition of Rule 404(b). Because the
      only purpose for which [the appellant] sought to introduce
      [another person’s] prior conviction was to show that he has a
      propensity to carry firearms, the [d]istrict [c]ourt correctly
      excluded the evidence.

United States v. Williams, 458 F.3d 312, 314 (3d Cir. 2006); see also

Wynne v. Renico, 606 F.3d 867, 870-71 (6th Cir. 2010) (holding habeas

petitioner’s constitutional right to present a complete defense was not

violated by state rule of evidence that precluded the use of propensity

evidence against a third party).   Thus, a criminal defendant cannot use a

third party’s murder charges to show that the third party committed the

instant murder merely because the third party has a general propensity to

murder.

      We find Williams, together with Patterson, Weiss, and Chmiel,

persuasive.    Rule 404(b) precluded King from admitting evidence of

Cannon’s murders to show that he had a propensity to murder and,

therefore, killed the victim in this case.   King argues that he should have

been able to introduce propensity evidence tending to show Cannon was the

real killer because it was highly relevant. That argument misses the point,

because Rule 404(b)(1) makes propensity evidence inadmissible subject to

Rule 404(b)(2)’s limited exceptions.    See Commonwealth v. Hicks, 91

A.3d 47, 53 (Pa. 2014). King’s claim of an alleged lack of prejudice to the

Commonwealth also misses the mark.           The prejudice inquiry required in

criminal cases by the second sentence of Rule 404(b)(2), see footnote 6,

supra, comes into play only if the other acts evidence is admissible under


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J-S27021-15



Rule 404(b)(2), i.e., for a purpose other than showing propensity. In other

words, any lack of prejudice does not nullify Rule 404(b)(1)’s prohibition

against propensity evidence.             Because King’s purpose in introducing

Cannon’s murder charges was to show his propensity to commit murder—

which is barred by Rule 404(b)(1)—he cannot show that his claim has

arguable merit.

        Additionally, we reject King’s argument to the extent he contends trial

counsel was ineffective in failing to flesh out Cannon’s motive to kill the

victim.     We have reviewed the record, and King has not stated what

evidence of Cannon’s motive to kill was wrongly excluded because of trial

counsel’s ineffectiveness. Further, King has failed to link Cannon’s unrelated

murder charges in any meaningful way to the killing of the victim.         The

evidence shows that Cannon killed his other victims after robbing them, see

N.T. Trial, 6/22/06, at 80-84, while the victim here was murdered in

retaliation for cooperating with authorities.

        Even if King could show arguable merit, he cannot show prejudice.

Much of the evidence that King claims the trial court excluded was actually

admitted.     First, Alston testified that Cannon told him, upon seeing the

victim, “[t]here go that boy supposed to be telling on Lemon[7]” N.T. Trial,

6/21/06, at 102. Although the trial judge admonished Alston not to testify

____________________________________________


7
    “Lemon,” King’s nickname, was extensively referenced at trial.



                                          - 21 -
J-S27021-15



about what other people said, she did not strike from the record Alston’s

testimony.    Second, Alston testified that Cannon—and not King—murdered

the victim by shooting him in the head.       Id. at 103.   King’s trial counsel

emphasized Alston’s testimony in closing argument, telling the jury, “[i]f

Ernie Cannon committed this murder, then you got the wrong man.” N.T.

Trial, 6/22/06, at 125.

      Also, despite objections from the Commonwealth, Alston testified

about his knowledge of Cannon’s murders.         Alston admitted to giving a

statement to police about murders he and Cannon allegedly committed.

N.T. Trial, 6/21/06, at 169.    Alston further admitted that he and Cannon

were suspected of murdering Robert Sample. Id. at 174-76. He stated that

Cannon confessed to him that he murdered a man named “Gene.”             Id. at

176-77.     Furthermore, Philadelphia Police Detective Gerald Lynch testified

that Alston and Cannon were suspected of committing robbery/murders

together.    N.T. Trial, 6/22/06, at 80-84.    Thus, the jury was aware that

Cannon was accused of multiple murders.

      In sum, we reject King’s claim. The PCRA court correctly found that it

lacks arguable merit, and King additionally cannot show prejudice.

   4. Failing to preserve error on prior bad acts evidence

      Next, King contends that prior counsel were ineffective for failing to

preserve error related to the admission of King’s prior bad acts. This other

acts evidence included (1) evidence linking King to the high-profile murder

of Thomas-Childs; (2) his status as leader of the “Lemon squad” of

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J-S27021-15



gangsters; (3) his illegal purchase and sale of handguns; (4) his involvement

in an unrelated drowning murder; and (5) his opinion that citizens should

not cooperate with police.    King contends that such evidence was wrongly

admitted, and trial counsel was ineffective in failing to object and also in

failing to request cautionary instructions.

      We reject King’s claim to the extent he contends trial counsel was

ineffective for allowing other acts into evidence. The PCRA court noted that

the above evidence was admissible for other purposes permitted under Rule

404(b)(2).   We find no error in the PCRA court’s reasoning.        Indeed, the

admissibility of several of the above items was previously litigated on direct

appeal. See King, 959 A.2d at 418-19 (determining that trial court did not

abuse its discretion in admitting testimony relating to drowning murder and

King’s anti-authority sartorial choices).     The PCRA bars relief if a claim is

previously litigated. See Commonwealth v. Tedford, 960 A.2d 1, 16 (Pa.

2008) (noting that a PCRA petitioner cannot satisfy the arguable merit prong

of the Pierce test where the underlying legal claim was rejected on direct

appeal).

      However, merely because the evidence was admissible does not

resolve whether trial counsel should have requested instructions to the jury

explaining the limited purpose for its admissibility.          Indeed, when a

defendant’s prior bad acts are properly admitted other than as propensity

evidence, a defendant is entitled to a jury instruction that the other acts are

not proof of his guilt. Commonwealth v. Billa, 555 A.2d 835, 841-42 (Pa.

                                     - 23 -
J-S27021-15



1989), abrogated on other grounds by, Commonwealth v. Freeman, 827

A.2d 385 (Pa. 2003); Commonwealth v. Amos, 284 A.2d 748, 750 (Pa.

1971) (“Of course, the potentially prejudicial effect of the introduction of the

defendant’s record requires that the jury be made aware of the limited

purpose of such evidence.”).     In Billa, for example, the Commonwealth

admitted evidence of the defendant’s prior rape and attempted murder of

another victim to prove his motive and intent to murder, as well as to rebut

his claim of accidental death. Billa, 555 A.2d at 841. Our Supreme Court

upheld the trial court’s admission of this evidence, but nevertheless reversed

the defendant’s conviction, holding that trial counsel was ineffective for

failing to request an appropriate limiting instruction. Id. at 843.

      In this case, we are constrained to disagree with the PCRA court’s

conclusion that the evidence’s admissibility meant that trial counsel was not

ineffective for failing to request a cautionary instruction. As stated in Billa,

where other acts evidence is admissible under Rule 404(b), a defendant is

entitled to a cautionary instruction so that the jury does not use the other

acts as propensity evidence. Nor can we agree that the reference to King’s

other criminal acts was fleeting. Rather, it pervaded the entire trial, as King

notes in his brief.

      In finding that trial counsel’s failure to request a limiting instruction

has arguable merit, we express no opinion as to the other two prongs of the

Pierce test. A finding that trial counsel had no reasonable basis for his or

her chosen course of action generally requires evidence, and the PCRA court

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J-S27021-15



dismissed King’s claim without a hearing. Cf. Commonwealth v. Reyes-

Rodriguez, 111 A.3d 775, 783-74 (Pa. Super. 2015) (en banc) (holding

that, where a PCRA petitioner fails to develop an evidentiary record at a

hearing, he cannot show counsel lacked a reasonable basis for failing to

request cautionary instructions).     We further decline to address whether

King was prejudiced by any ineffectiveness in this regard. We hold only that

King is entitled to an evidentiary hearing to develop a record to support his

claim.

   5. Cumulative prejudicial impact of claims

      In his final claim, King argues that the cumulative prejudicial impact of

his claims entitles him to relief.   When post-conviction claims are rejected

for lack of merit or arguable merit, no basis exists for an accumulation claim.

Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012).              “When the

failure of individual claims is grounded in lack of prejudice, however, then

the cumulative prejudice from those individual claims may properly be

assessed.” Id.

      Although we remand for an evidentiary hearing only on King’s fourth

claim only, King cannot ultimately prevail, i.e., gain a new trial, on his

accumulation claim. This is so because he has only one claim with merit or

arguable merit.   In this appeal, we have found that all other substantive

claims of ineffective assistance lack arguable merit.    In King’s prior PCRA




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appeal, we found that King’s Brady violation claim lacked merit, because he

could not show the withheld evidence was material.8 Haskins, 60 A.3d at

552. Thus, because King possesses only one claim of arguable merit, it is

impossible for him to show cumulative prejudice. As our Supreme Court has

repeatedly stated, “‘no number of failed claims may collectively warrant

relief if they fail to do so individually.’        Accordingly, where claims are

rejected for lack of arguable merit, there is no basis for an accumulation

claim.    Commonwealth v. Bomar, 104 A.3d 1179, 1216 (Pa. 2014)

(quoting Commonwealth v. Washington, 927 A.2d 586, 617 (Pa. 2007)).

       In sum, the PCRA court erred in finding that King’s fourth claim lacked

arguable merit, and therefore abused its discretion in denying a hearing on

that claim.    It did not err in denying relief on all other claims raised on

appeal.    Accordingly, we affirm in part, vacate in part, and remand for an

evidentiary hearing limited to King’s fourth claim only, i.e., whether he can

meet the other prongs of the Pierce test regarding trial counsel’s failure to



____________________________________________


8
  We cannot revisit our prior holding in this appeal. See Commonwealth v.
Viglione, 842 A.2d 454, 46-162 (Pa. Super. 2004) (en banc) (quoting
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)) (“Among the
related but distinct rules which make up the law of the case doctrine are that
. . . upon a second appeal, an appellate court may not alter the resolution of
a legal question previously decided by the same appellate court . . . .”).
However, even though King did not prevail in the prior appeal, we reiterate
our disapproval of the Commonwealth’s conduct. See Haskins, 60 A.3d at
549-50; id. at 552 (Bowes, J., concurring).



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request a jury instruction explaining the limited purpose of the Rule 404(b)

evidence admitted at trial.

      Order affirmed in part and vacated in part.         Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




                                   - 27 -
