 J-S54034-17


 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
             v.                                 :
                                                :
                                                :
CALVIN MALLORY, JR.                             :   No. 269 WDA 2017




                Appeal from the PCRA Order January 11, 2017
              In the Court of Common Pleas of Somerset County
             Criminal Division at No(s): CP-56-CR-0000319-2011


 BEFORE:      OTT, MOULTON, and FITZGERALD,* JJ.

 MEMORANDUM BY FITZGERALD, J.:                          FILED DECEMBER 26, 2017

         Appellant, Calvin Mallory, Jr., appeals from the order of the Somerset

 County Court of Common Pleas denying his petition for relief under the Post

 Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.                Appellant

 contends, inter alia, that defense counsel provided ineffective assistance

 during trial by failing to object to testimony by a Commonwealth witness of

 other murders that Appellant allegedly committed or ordered.           We agree

 with Appellant that defense counsel provided ineffective assistance that

 resulted in prejudice. Therefore, we reverse the PCRA court’s order, vacate

 the judgment of sentence, and remand for a new trial.



 ____________________________________________


 *
     Former Justice specially assigned to the Superior Court.
J-S54034-17



                    FACTUAL AND PROCEDURAL HISTORY

        1. Procedural History

        Appellant was charged with first degree murder,1 two counts of

conspiracy to commit murder in the first degree,2 and one count each of

corrupt organizations,3 sale of a non-controlled substance4 and criminal use

of a communication facility.5 The jury found Appellant guilty of all charges

following a four-day trial.       The trial court sentenced him to a mandatory

term of life imprisonment for first degree murder followed by a consecutive

term of two to ten years’ imprisonment.           On direct appeal, this Court

affirmed, and our Supreme Court denied Appellant’s petition for allowance of

appeal.    Commonwealth v. Mallory, 97 WDA 2013 (Pa. Super. Mar. 19,

2014) (unpublished memorandum), appeal denied, 203 WAL 2014 (Pa. Oct.

6, 2014).

        Appellant filed a timely PCRA petition alleging ineffective assistance of

trial counsel due to unreasonable trial strategy. On April 27, 2016, the PCRA

____________________________________________


1
    18 Pa.C.S. § 2502(a).
2
 18 Pa.C.S. § 903. One count alleged a conspiracy between Appellant and
Toriano McCray, and the other count alleged a conspiracy between Appellant
and Roland Washington.
3
    18 Pa.C.S. § 911(b)(3).
4
    35 P.S. § 780-113(a)(35)(ii).
5
    18 Pa.C.S. § 7512(a).



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court held an evidentiary hearing during which trial counsel testified. In an

order and opinion issued on January 11, 2017, the PCRA court denied

Appellant’s PCRA petition. Appellant filed a timely appeal to this Court, and

both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

     2. Factual Background

     Appellant’s conviction arises out of the shooting death of Bryant

Adderley inside his apartment in August 2008.     Police officers recovered a

package of fake cocaine at the scene. About one week after the discovery of

Adderley’s body, Ronald Ziegel was arrested in Fayette County on an

unrelated charge. Ziegel provided information that resulted in the arrests of

Appellant, Washington and McCray.

     The PCRA court describes the evidence adduced during trial as follows:

        On July 21, 2011, the then-District Attorney of Somerset
        County filed an Information charging [Appellant] with
        multiple crimes arising out of the death of Bryant Adderley.
        In essence, the Commonwealth alleged that [Appellant]
        headed an illegal drug distribution ring based out of
        Brooklyn, New York, and Bryant Adderley “worked” locally
        for [Appellant] as a dealer.            According to the
        Commonwealth’s theory of the case, Adderley had been
        stealing money from [Appellant] so [Appellant] ordered
        Adderley’s murder by instructing Roland Washington and
        Toriano McCray to shoot Adderley.

        Robert Lee Ziegel, the prosecution’s chief witness, drove
        Washington and McCray to Adderley’s residence on the day
        of the murder. Ziegel initially was a marijuana smoker
        who sold marijuana on the side to finance his drug habit.
        Ziegel found, however, that he was unable to financially
        make ends meet, even with working a legal job and selling
        marijuana. He, therefore, decided to start selling crack
        cocaine as well. Ziegel’s cocaine supply was purchased in

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J-S54034-17


       part from Pittsburgh suppliers and in part from Bryan
       Maust, a local dealer who worked for [Appellant]. Maust
       eventually introduced Ziegel to [Appellant], at which time
       [Appellant] stated his interest in employing Ziegel as one
       of his dealers.

       About two months after [Appellant]’s and Ziegel’s first
       meeting, [Appellant] contacted Ziegel and instructed him
       to drive Maust to a farmhouse near Jennerstown,
       Pennsylvania. At the farmhouse, [Appellant] offered to
       supply Ziegel with cocaine for a lesser price than Ziegel
       had been paying his Pittsburgh suppliers. Also present at
       the farmhouse meeting was an associate of [Appellant]’s
       named “B-Bop.”

       In the time following the farmhouse meeting, Ziegel’s
       dealing enterprise began to expand, eventually employing
       around five people as distributors.     Ziegel went from
       acquiring one ounce to four ounces of cocaine at a time
       from [Appellant]’s dealers, after which [Appellant]
       informed Ziegel that he would have to come to Brooklyn to
       “re-up.” [Appellant] also instructed Ziegel to transport to
       Brooklyn money owed to [Appellant] by Maust.           The
       amount of cocaine [Appellant] supplied Ziegel eventually
       increased to a kilo at a time.

       Later, [Appellant] instructed Ziegel to meet him at the
       Jennerstown farmhouse again, which is where Ziegel first
       met Bryant Adderley, or “B-Dave.” [Appellant] told Ziegel
       that Ziegel was traveling too much with too much product,
       so [Appellant] was going to position Adderley nearby with
       drugs so that Ziegel would not have to travel as far to “re–
       up.” At that point, [Appellant] also gave Ziegel a quarter-
       pound of heroin and instructed him to sell it. Ziegel only
       sold the heroin for a month or so, however, because too
       many people in the area were overdosing on it. Ziegel
       reported this to [Appellant], and [Appellant] decided to
       stop selling the heroin in the area.

       One of [Appellant]’s shipments subsequently got “busted,”
       and Ziegel was informed that he would not have any
       product for about two weeks.      Ziegel was given five
       pounds of marijuana to sell in the meantime, which was
       worth $10,000. Because Ziegel had saved enough money

                                  -4-
J-S54034-17


          to cover the cost of the marijuana, he decided to take a
          vacation to Ocean City, Maryland with his girlfriend (Amy
          Johnson), and two other people, one of whom worked for
          Ziegel as a “crew member.” In Ocean City, a police officer
          saw Ziegel sitting in a vehicle rolling a “blunt” (a cigar with
          the tobacco removed and marijuana inserted).             Ziegel
          admitted to the officer that the marijuana belonged to him.
          Ziegel was taken to jail, where a DEA agent offered him a
          deal[6] in exchange for information as to who had sold
          Ziegel the marijuana. Ziegel declined and went to jail
          instead, staying for two weeks before he was finally bailed
          out by [Appellant] via Ziegel’s wife, at ten percent of the
          $50,000 bond.

          At this point, Ziegel owed [Appellant] $10,000 for the
          marijuana and $5,000 for the purchase of the bail bond.
          Ziegel went to Brooklyn and repaid [Appellant], after which
          [Appellant] gave Ziegel ten ounces of crack cocaine to help
          him “get back on [his] feet.” [Appellant] also informed
          Ziegel that he had earned his “first stripe” for getting
          locked up and not rolling over under pressure from the
          DEA.

          About a month later, Ziegel was again arrested and
          charged, this time by the Pennsylvania State Police, with
          selling crack cocaine to a friend. While the Pennsylvania
          charges were pending, Ziegel briefly moved back into his
          parents’ home, and began working with his father at
          Hidden Valley Resort on the maintenance crew. It was at
          that point that Maust contacted Ziegel, again on
          [Appellant]’s behalf. Ziegel was nervous because he knew
          that he still owed [Appellant] $12,000 for the ten ounces
          of crack cocaine [Appellant] had given him to get back on
          his feet.     Maust transported Ziegel to a location in
          Donegal, where [Appellant] was waiting.

          [Appellant] asked Ziegel if he was ready to begin selling
          again, to which Ziegel replied that he guessed so.
          [Appellant] at this point also allegedly threatened to smash
____________________________________________


6
 The DEA agent was investigating because a large amount of marijuana had
been found in the trunk of Ziegel’s vehicle.



                                           -5-
J-S54034-17


       a beer bottle into Maust’s face because Maust had used an
       ounce of heroin instead of selling it. Maust was given a
       week to get the money to [Appellant].            However,
       [Appellant] made no mention at that point of Ziegel’s debt.
       [Appellant] shortly thereafter began supplying Ziegel with
       two ounces of cocaine at a time to sell. Ziegel claimed to
       have been given his second stripe after his second bust;
       that is, he was promoted to “General” within [Appellant]’s
       organization.

       Ziegel returned to selling drugs full-time.          Later, the
       Fayette County Drug Task Force showed up at Ziegel’s
       residence where he was found in possession of sixteen
       grams of marijuana. Ziegel indicated that he could do his
       time, but that he wanted out of “this lifestyle,” after which
       he agreed to cooperate with the authorities. However,
       nothing much came from his agreement to cooperate. As
       Ziegel described it, “I just kept putting it off basically . . . I
       said, I got to keep doing what I’m doing to make it look
       good. And [the officer] said, he can’t promise me nothing,
       but he said that they’ll lay off me.”

       Subsequently, Ziegel met up with [Appellant] at the “Trent
       Residence,” a house located on Trent Road in Bakersville,
       Pennsylvania. Ziegel was invited in by a man named
       “Sheik.” [Appellant] and Adderley were in the bathroom,
       and Ziegel overheard them discussing a deal: “I heard
       them say something about they don’t trust it. I heard
       about offing it . . . And at the end I just heard let’s give
       him a choice. That’s . . . the extent of the conversation I
       heard.” Ziegel believed they were talking about him.
       After the discussion between [Appellant] and Adderley,
       [Appellant] came out of the bathroom and offered Ziegel a
       position in Erie, Pennsylvania. Ziegel’s choice became: go
       to New York to pick up a kilo or go to Erie. Ziegel
       accepted the Erie post, figuring that if he went to New
       York, he would never come back.

       Business continued more or less as usual through 2009.
       One day, [Appellant] called Ziegel out of the blue and
       asked him to come to New Jersey as soon as possible.
       Ziegel caught a ride to Columbus, Ohio, where he met up
       with a woman who had [Appellant]’s Yukon Denali, which
       Ziegel then drove to Perth Amboy, New Jersey. Ziegel met

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       [Appellant] there, along with Roland Washington and
       Toriano McCray. Ziegel had never met McCray before, but
       he had met Washington at least once. Ziegel testified that
       [Appellant] sat him down, “and he’s talking about B-Dave.
       He’s like, he’s been shorting me money. I don’t know why
       he’s screwing around like this. You know, we got to teach
       him a lesson because he’s, he’s kind of telling me what I
       needed to do.” Ziegel next testified that the plan was to
       package up fake cocaine and then he, McCray, and
       Washington were to go to Somerset to deliver the fake
       cocaine to Adderley and “get the money off of him.”

       Ziegel testified that he helped “puck” up the package of
       fake cocaine. Pucking had been explained as follows:

          Well, what a puck is, there’s a device called a puck
          press. It has a hydraulic pump, and there’s a little
          round device on top, where there’s a hole here. Kind of
          looks like a hockey puck. Put the powder in it, you
          screw a top on, a solid metal top, and you move the
          jack, and it jacks it up and compresses it into a form of
          a puck.

          [M]ost people who do drugs like their powder in rock
          form. So if you cut it, you got to break it down into
          powder, and then to get it hard again you have to
          what’s called puck it, press it.

       Ziegel indicated that the procedure is to take pure powder
       cocaine, to cut it with something, “[u]sually procaine,” and
       then puck it. So Ziegel testified that the plan was to take
       fake cocaine and puck it to give it the appearance of real
       cocaine, and then take it to Adderley in exchange for
       money: “Me and [Appellant] packaged it . . . Baking soda .
       . . Because he didn’t want to waste his money trying to
       puck up cocaine because it cost too much.” Ziegel agreed
       that they had trouble packing it: “Baking soda won’t
       compress. As soon as we puck it up, it would just fall back
       apart. I tried putting hair spray in it to try to hold it
       together. That didn’t work. So . . . it wouldn’t puck up.”

       McCray testified that what Ziegel had packed up was
       cocaine. McCray knew it was cocaine because he took
       some to the bathroom and used it without anyone else

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J-S54034-17


       knowing. McCray testified, “I know it was real cocaine
       because I was usin’ it. I snuck some and was usin’ it . . . I
       did drugs from years ago. I know what cocaine is . . . .”
       McCray knew, then, that the drugs that they had packaged
       up in Brooklyn to take to Adderley were real.

       The trio retrieved two guns in Perth Amboy, which
       Washington and McCray carried.       Ziegel at this point
       believed that the plan was to rob Adderley rather than
       murder him. But Washington testified that when they left
       New York with the guns, it was his understanding that they
       were supposed to murder Adderley, per [Appellant]’s
       instruction. Washington corroborated Ziegel’s testimony
       that the plan was to rob Adderley. But, according to
       Washington, they were also to murder Adderley at
       [Appellant]’s request, and for free.    However, McCray
       testified that [Appellant] offered the parties “a large
       amount of money” to murder Adderley, more specifically,
       they would receive $50,000 or $60,000 for the homicide,
       which they could retrieve from Adderley’s Johnstown
       apartment after the murder.

       Adderley was not home when the trio first arrived, so they
       drove around and returned later, at which point, Adderley
       had returned. As Ziegel narrated:

          Washington and McCray grab the box of fake cocaine,
          and they walk up to the door. . . It’s still early in the
          morning, probably about 8:30, 9, sometime . . . I’m
          sitting out in the car. I was smoking a cigarette,
          waiting for them to come out . . . I’m sitting in there
          smoking my cigarette, and the next thing you know, I
          hear six, seven gunshots right in a row. And a little bit
          after that, they come walking out like nothing even
          happened, hop back in the car, told me to pull out and
          drive, drive slow.

       According to McCray, he and Washington entered
       Adderley’s home.     Washington handed Adderley the
       product, and McCray asked if he could use the bathroom.
       While McCray was in the bathroom, he heard Adderley yell




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J-S54034-17


          “What the ‘F’ is this?” after which he exited the bathroom
          to see Adderley facing away, examining the bag. When
          Adderley turned around, McCray fired.[7] According to
          McCray, at that point, he still did not know that the drugs
          were fake.

          The parties drove off and disposed of the evidence, after
          which they went to Adderley’s other apartment in
          Ferndale, Pennsylvania. Ziegel could not recall whether
          [Appellant] had called someone in the car or vice versa,
          but Ziegel was handed a phone, and [Appellant] was on
          the other end of the line asking “how the Godfather Part II
          went, jokingly; and I said all right because I didn’t know
          what else to say.      And I handed the phone back to
          McCray.” As Ziegel put it,

              We all go up to the apartment. I wait in the living room
              and they go back in the bedroom and change into
              different clothes, and they were looking for something.
              I, I don’t know what that something was. So they finish
              up. And we all leave. We all get back into the car. . . .
              We head back to Perth Amboy, New Jersey.

          The three eventually found [Appellant] in Brooklyn. Ziegel
          smoked some marijuana and drank some vodka to calm
          his nerves while [Appellant] prepared “the next little
          package” for Ziegel to leave with so Ziegel would not have
          to return anytime soon.           Ziegel wanted to leave
          immediately to go back to Erie, but [Appellant], McCray,
          and Washington took a vote, deciding that Ziegel was
          required to stay and rest up before he left. Ziegel was
          arrested two days later. Ziegel had slept for most of his
          first day back in Erie. The next day, he went out “to kind
          of clear my mind and everything, and ended up getting
          stopped by the Game Commission.” About six days later,
          on August 25, 2009, he gave a statement to the police
          implicating [Appellant] in Adderley’s murder.         Ziegel
          testified at [Appellant]’s preliminary hearing under a grant
____________________________________________


7
  Defense counsel objected to publication of photographs depicting
Adderley’s dead body because of their “shock value.” N.T., 4/10/12, at 61-
62, 85.



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J-S54034-17


         of immunity, and on February 16, 2012, Ziegel pleaded
         guilty to third degree murder.

PCRA Ct. Op., 1/11/17, at 1-9 (citations omitted). Washington and McCray

both testified for the Commonwealth, and both pleaded guilty to third degree

murder for their roles in Adderley’s death. N.T., 4/11/12, at 91, 161-62.

      3. Testimony During Trial Concerning Other Murders

      We now turn to the testimony by Ziegel that lies at the heart of this

appeal—testimony that the deceased, Adderley, committed a murder at

Appellant’s request, and Appellant himself committed a gruesome murder by

injecting a victim with battery acid.

      During the Commonwealth’s direct examination, Ziegel testified,

without objection, that Adderley “took a homicide” for Appellant on a prior

occasion. N.T., 4/10/12, at 138-39. Ziegel then testified, without objection,

that he also witnessed Appellant commit a murder in New York by injecting

the victim with battery acid, a so-called “hot shot”:

         BY THE DISTRICT ATTORNEY:

         Q. Were you ever present in New York when a hot shot
         was administered?

         A. Yes, I was.

         Q. Explain to the jury what a hot shot is.

         A. A hot shot is a needle filled with battery acid.

         Q. What kind of needle?

         A. A hypodermic needle or an insulin needle.


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         Q. And what did you see?

         A. Shortly after I got busted in [Ocean City,] Maryland, I
         got out and went back up there, up to Brooklyn; and after
         I explained to them what happened and everything, we
         went for a ride. And it was me, B-Dave [the deceased, Mr.
         Adderley], B-Bop and [Appellant].       And John Barden
         (PHONETIC) actually did tell me to stop, there he is.

         Q. You're driving the car?

         A. Yes. Said stop. There he is. They get out. B-Dave and
         B-Bop hold a guy down while C [Appellant] injects him
         with a syringe.

         Q. He injects him with what?

         A. A syringe.

         Q. And what happens?

         A. The guy stops moving after a little bit and they prop
         him up against the Dumpster and get back in and tell me
         to go.

         Q. And what do they say?

         A. I can’t remember exactly what was said. But it was to
         the point, let that be a lesson. Don’t mess with us or
         something like that. I can’t exactly remember.

         Q. And do you think that was a message for you in the
         sense that you had just been released again from prison?

         A. That’s the way I took it.

Id. at 140-41.       We see nothing in the record indicating that the

Commonwealth notified defense counsel, prior to or during trial, of its intent

to introduce this testimony. Nevertheless, defense counsel did not object to

this testimony or move for a mistrial. Id. at 138-41.


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     During Ziegel’s cross-examination, defense counsel asked questions

designed to demonstrate that Ziegel’s “hot shot” testimony was incredible:

        A: Well, like I stated before, I still wasn’t fully set on
        getting out [of the drug operation]. It wasn’t till I seen
        people in our own organization getting shot that kind of
        has a way to set your—

        Q: So after [Adderley] was murdered, then it occurred to
        you that this was probably not a good plan?

        A: Yes. That I wanted definitely to get out.

        Q: When you saw a guy held down and have battery acid
        shoved into his arm and dumped into an alley in Queens, it
        never occurred to you, this was a bad idea? The money
        was still good?

        A: Yes, that did occur to me; but like I said, I was never
        dead set on doing it.

        Q: But the money was still as attractive even though you
        just saw somebody who you never saw again have battery
        acid shoved into his vein, that didn’t tell you: I got to stop
        and quit right here? You kept going?

        A: Yes, I kept going.

N.T., 4/10/12, at 289-90.

     4. Closing Argument

     During closing, defense counsel argued that Appellant’s “hotshot”

testimony was unworthy of belief:

        And while they [Appellant, his co-conspirators, and others]
        were there in New Jersey and New York barbecuing,
        drinkin’ beers, smoking, some extra people came in there .
        . . Lots of people were there. They were hanging out.
        During this time . . . [Adderley] arrives . . . They went to
        Coney Island together . . . They’re hanging out. You’re a


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J-S54034-17


        pal. We’re having barbecue.      We’re doing this.   We are
        taking day trips.

        If you wanted to really kill Bryant Adderley, why not do it
        there? Why not kill him right there? I wasn’t really sure
        what happened to that guy who got the hot shot, but they
        pumped his arm full of battery acid and dumped him in an
        alleyway in Queens, New York, near a dumpster. Sounds
        like there were easy opportunities to get rid of someone
        there versus anywhere else. I mean it was a possibility.

        And everybody said: Best friends.           [Adderley] and
        [Appellant], best friends. Great friends . . . That’s pretty
        nice. And when he’s up in New York and New Jersey and
        they go to Coney Island, still everything is okay. And two
        days later, he would be back in Somerset and would
        [Appellant] send three guys there to kill him? I would
        argue to you that’s unlikely.

N.T., 4/12/12, at 20-21.

     Defense counsel’s theory of the case was that Appellant was a drug

dealer who had sent three of his crew to Somerset, Pennsylvania to deliver

cocaine. Ziegel cooked up a scheme whereby he and the two gunmen would

deliver fake cocaine to Adderley, take the money, and leave.       However,

Adderley realized that the drugs were actually fake and confronted the two

gunmen, who shot him to death and fled in a vehicle with Ziegel. When it

became clear that police believed they had planned to murder Adderley,

they blamed Appellant to facilitate a deal to plead guilty to third degree

murder. Defense counsel articulated this theory as follows during his closing

argument:

        So they package up their cocaine, so Mr. Ziegel says, and
        we were all packaging up fake cocaine.       But Toriano
        McCray, he had a little bit more information about the

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J-S54034-17


       packing of cocaine in New Jersey than anybody else. He
       said, Hey, I took some of that cocaine; it was cocaine; it
       wasn’t baking soda. I’ve done coke before. I know what it
       was.

       So it was real cocaine . . . It was a . . . regular delivery.
       Nothing more and nothing less. But Mr. Ziegel needed
       $12,000 and he needed it bad. He needed it so bad that
       he figured: I’ll take the ten ounces you gave me of real
       cocaine that I pucked up and I’ll also have my own supply
       of fake cocaine that I’ve pucked up. And I’ll hand these
       two guys that come with me, who are supposed to deliver
       real cocaine and pick up real money, I’ll hand them the
       fake cocaine and we’ll get his money and we’ll have the
       drugs and I can go back to doing business in Erie County .
       ..

       Now, we have a bit of a problem here . . . in the moments
       described by Toriano McCray, you might want to double-
       check that. Because, as I said . . . Toriano McCray went
       into the bathroom [at Adderley’s residence] . . . [and]
       Toriano [had previously] picked up[] real coke. And he
       walked in and he went to the bathroom and he heard the
       voice of [Adderley] saying . . . “What the fuck is this?”. . .
       It took . . . a half a second for [Adderley] to realize that
       this was fake. This wasn’t real.

       Mr. Ziegel talked about how everybody pretty much was
       armed. And before a problem ensued, as soon as he heard
       that, Toriano McCray said: I was out of the bathroom firing
       my gun . . . But the reality is: In that second . . . that was
       a defensive move. That was a move of: I didn’t think that
       this guy was going to look in the box that quickly and I
       didn’t know what the problem was because I think this is
       real coke. But I’m coming out to make sure that I don’t
       get shot by somebody. And that’s what Toriano McCray
       did. This was to be a robbery and they were going to steal
       his drugs and money. But this thought process belonged
       solely to Rookie, Mr. Ziegel. It’s his plan. I’m going to rob
       them and I’ll have the drugs and money and I’m half-
       baked on coke, so I’m completely protected here. And we
       are going to rob this guy. And that robbery went bad. It
       went real bad. It went bad very fast.


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J-S54034-17


        And I know that Toriano McCray said: Oh, yeah, I saw
        them package up real coke. I know he said that. But I
        believe that Toriano McCray [then] knew what they were
        going to deliver was fake coke for a robbery. And you
        want to know why? . . . They took the time to get [the
        victim’s] keys, his wallet and his cell phone.      If you
        thought that was real coke, you would take that with you,
        too. That’s worth $10, $12,000. It’s ridiculous not to take
        that box with you. And it leaves more of a mystery for the
        police, quite frankly, because now they just have a dead
        body. They don’t have anything . . . .

        Ladies and gentlemen, this was a robbery to steal drugs
        and money and that plan was hatched by one person: Mr.
        Ziegel.  And Mr. Ziegel had plenty of opportunity to
        convince two poor guys, McCray and Washington, that
        they can make money off of this deal. They were both out
        of work. They were not connected into this operation.
        They weren’t Generals . . . They were nothing. And they
        had a chance to make some quick money. I would argue
        to you that this murder was not as intentional as it
        seemed. It was a robbery gone bad, pure and simple,
        hatched by Ziegel, hatched by Rookie so that he could
        have his drugs, get money, and nobody else could get it
        and be ready to go.

Id. at 22-26, 33.

     5. Evidentiary Hearing On PCRA Petition And PCRA Court’s
     Decision

     Defense counsel noted that Appellant was charged with two substantial

charges: first degree murder and running a drug dealing operation.     N.T.,

4/27/16, at 25.     Defense counsel contended that his first priority was to

“beat the murder-one charge” because a conviction for this offense would

mandate life imprisonment without parole.      Id.   He elaborated that “the

strategy going on was simple. I’m not a murderer. I didn’t direct anybody




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J-S54034-17


to commit a murder on my behalf.        I may be a drug dealer, but I’m not

going to kill my best friend.” Id. at 26.

      PCRA counsel asked why trial counsel remained silent during Ziegel’s

testimony about the “hot shot” murder. Defense counsel answered:

         I believe that every word that came out from Mr. Ziegel’s
         mouth was either a lie or an exaggeration or an imaginary,
         I’m a bigger person than you know.

         I spent a lengthy time[,] I believe[,] at sidebar[, and] both
         the DA and I were admonished for how long it took to get
         through his testimony. And because I needed to establish
         that every word that came out of it was pure unmitigated
         garbage, that he was not credible on a shot.

         The fact that he’s telling tales out of school, this is the
         same person who explained how suddenly he got
         promoted every time he got arrested and charged
         criminally; that [Appellant] somehow would say, oh, now
         that you’ve been arrested and criminally charged and
         you’re costing me more money and lost drugs, that
         somehow I’m going to make you a lieutenant in the
         organization and move you up because you’re impressing
         me with your skill as a drug dealer for me.

N.T., 4/27/16, at 49. PCRA counsel also inquired as to why defense counsel

did not object to the other homicide testimony, and defense counsel

explained:

         More puffery and nonsense from Mr. Ziegel about what a
         big, bad—I want to say ass—drug dealer he was. Look
         how cool I am, I go to New York, I talk about murders,
         murders being committed left and right and how tough we
         are. On cross-examination I believe I established, not
         convincingly to the jury, that pretty much his story didn’t
         make any sense. I’m getting promoted up through failure;
         and I think that’s exactly what I argued at closing
         argument, that he was being promoted up through his
         failure as a drug dealer.

                                     - 16 -
J-S54034-17



Id. at 50-51.

      PCRA counsel argued that defense counsel had no reasonable basis for

failing to object to the “hot shot” evidence and the evidence that Adderley

committed murder at Appellant’s direction. Id. at 84. PCRA counsel added:

“I can’t believe that [this evidence] wouldn’t have made a difference in this

case. When your client has now been admitted to have committed [or been]

involved in two other murders . . . the jury [is] tainted beyond measure at

that point [and is] going to issue a guilty verdict . . .” Id.

      The PCRA court responded:

         So if I understood [defense counsel] correctly, he said I
         didn’t object to those sensational stories that Ziegel was
         telling because he was just making that stuff up because
         he was a liar and he wanted to look good. So if that’s the
         defense theory and that’s why he didn’t object, okay, I
         understand that. But then, to be honest, as I’m sitting
         here now, you know, I have to say that, doggone, the stuff
         that came out, those lies, if that’s what they were, sure
         seemed awfully damaging.

Id. at 92. The court added:

         [E]ven [defense counsel’s closing] argument was
         consistent . . . with what he is describing as his strategy
         today, which is that they’re all liars and everything they
         say is a lie. My guy didn’t do it. He wasn’t there. They’re
         all lying. That was the defense theory. My question
         becomes: well, if that was the theory and that was the
         strategy, what happens when you let in stuff that’s so
         damaging, that it—I mean even I was thinking to myself,
         ouch . . . .

         I want[] to know if there was a case out there, that I’ll call
         the “ouch” case now, that says when it’s that bad, you
         have to overlook strategy.

                                      - 17 -
J-S54034-17



Id. at 93, 94.

      Ultimately, the PCRA court determined that defense counsel had a

reasonable trial strategy:

         [A]ccording to the defense’s theory of the case, Ziegel
         himself had orchestrated the robbery-gone-wrong. It was
         therefore important to highlight the inconsistencies in his
         account of the murder, including, e.g., the fact that
         [Appellant] and Adderley were on good terms just days
         before the murder; Ziegel testified that he had pucked up
         fake cocaine with [Appellant] in order to dupe Adderley,
         however McCray testified that the cocaine that was pucked
         up was real cocaine—yet, nevertheless, fake cocaine ended
         up at the scene of the murder; and that if [Appellant] had
         allegedly committed a prior murder without detection in
         New York, then he could have committed this murder in
         the same manner instead of ordering the murder as Ziegel
         described.        [Defense    counsel]   also   emphasized
         inconsistent and incredulous aspects of Ziegel’s story
         generally, i.e., that Ziegel had repeatedly cost [Appellant]
         money and drugs, but purportedly continued to get
         promoted in the organization; that Ziegel had witnessed a
         murder and heard about another, but that was not enough
         to cause Ziegel to extricate himself from the organization,
         yet his participation in Adderley’s murder was, for an
         undetermined reason, sufficient for Ziegel to report
         [Appellant] to the police.

         [Defense counsel] had a coherent theory of the case, and
         we cannot say that the method he chose to present his
         theory of the case had no “reasonable basis designed to
         effectuate his client’s interests.” . . . In viewing [defense
         counsel]’s actions “in light of all the circumstances,” we
         similarly cannot say that “the identified acts or omissions
         were outside the wide range of professionally competent
         assistance,” . . . even though [defense counsel]’s strategy
         carried considerable risks.

PCRA Ct. Op. at 26.

                             DISCUSSION

                                    - 18 -
J-S54034-17


      1. Questions Presented And Standard Of Review

      Appellant raises the following questions on appeal:

         A. Whether, under both Pennsylvania and federal law,
         former trial counsel was constitutionally ineffective, thus,
         requiring vacation of conviction and grant of new trial,
         where former trial counsel’s stated trial strategy as
         revealed at the PCRA evidentiary hearing in this matter
         was pure afterthought[?]

         B. Whether, under both Pennsylvania and federal law,
         former trial counsel was constitutionally ineffective, thus,
         requiring vacation of conviction and grant of new trial,
         where assuming former counsel’s statement of trial
         strategy to be true, trial counsel’s highly prejudicial
         conduct at trial, including, but not limited to, his failure to
         object to and, in fact, even, himself, eliciting evidence of
         alleged prior bad acts regarding his own client, in no way
         advanced counsel’s stated trial strategy[?]

         C. Whether, under both Pennsylvania and federal law,
         former trial counsel was constitutionally ineffective, thus,
         requiring vacation of conviction and grant of new trial,
         where, whether advancing trial strategy or not, former
         counsel’s conduct at trial, including, but not limited to, his
         failure to object to and, in fact, even, himself, eliciting
         evidence of alleged prior bad acts regarding his own client,
         was so prejudicial that it so undermined the truth-
         determining process that no reliable adjudication of guilt or
         innocence could have taken place[?]

         D. Whether, under both Pennsylvania and federal law,
         former trial counsel was constitutionally ineffective, thus,
         requiring vacation of conviction and grant of new trial,
         where the cumulative effect of all errors committed by trial
         counsel before and during trial so undermined the truth-
         determining process that no reliable adjudication of guilt or
         innocence could have taken place[?]

Appellant’s Brief at 6-7.




                                     - 19 -
J-S54034-17


      A PCRA petitioner will be granted relief only when he proves, by a

preponderance of the evidence, that his conviction or sentence resulted from

the “[i]neffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.”     42

Pa.C.S. § 9543(a)(2)(ii).        “Our standard of review of a PCRA court’s

dismissal of a PCRA petition is limited to examining whether the PCRA

court’s determination is supported by the evidence of record and free of

legal error.”   Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super.

2003) (en banc) (citation omitted).

       It is well settled that

         counsel is presumed effective, and to rebut that
         presumption, the PCRA petitioner must demonstrate that
         counsel’s performance was deficient and that such
         deficiency prejudiced him. Strickland v. Washington, [ ]
         104 S. Ct. 2052, [ ] (1984). This Court has characterized
         the Strickland standard as tripartite, by dividing the
         performance      element    into   two    distinct  parts.
         Commonwealth v. Pierce, [ ] 527 A.2d 973, 975 ([Pa.]
         1987). Thus, to prove counsel ineffective, [the a]ppellant
         must demonstrate that: (1) the underlying legal issue has
         arguable merit; (2) counsel’s actions lacked an objective
         reasonable basis; and (3) [the a]ppellant was prejudiced
         by counsel’s act or omission. Id. at 975.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). “If a petitioner

fails to prove any of these prongs, his claim fails.”   Commonwealth v.

Simpson, 66 A.3d 253, 260 (2013) (citation omitted).




                                      - 20 -
J-S54034-17


      Generally, counsel’s assistance is constitutionally effective if he chose

a particular course of conduct that had some reasonable basis designed to

effectuate his client's interests. See Commonwealth v. Ali, 10 A.3d 282,

291 (Pa. 2010). 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. Colavita, 993 A.2d 874, 887 (Pa. 2010) (quotation and

quotation marks omitted).    To sustain a claim of ineffectiveness, 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. 2000).

      To demonstrate prejudice, the petitioner must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different.”     Commonwealth v.

King, 57 A.3d 607, 613 (Pa. 2012) (quotation marks and citation omitted).

“[A] reasonable probability is a probability that is sufficient to undermine

confidence in the outcome of the proceeding.” Ali, 10 A.3d at 291 (citation

omitted).   The test for prejudice in the ineffectiveness context is more

exacting than the test for harmless error:

         [A] defendant [raising a claim of ineffective assistance of
         counsel] is required to show actual prejudice; that is, that
         counsel’s ineffectiveness was of such magnitude that it
         ‘could have reasonably had an adverse effect on the
         outcome of the proceedings.’ This standard is different
         from the harmless error analysis that is typically applied

                                    - 21 -
J-S54034-17


         when determining whether the trial court erred in taking or
         failing to take certain action. The harmless error standard,
         as set forth by this Court . . . states that “[w]henever
         there is a ‘reasonable possibility’ that an error ‘might
         have contributed to the conviction,’ the error is not
         harmless.” This standard, which places the burden on the
         Commonwealth to show that the error did not contribute to
         the verdict beyond a reasonable doubt, is a lesser standard
         than the . . . prejudice standard, which requires the
         defendant to show that counsel’s conduct had an actual
         adverse effect on the outcome of the proceedings. This
         distinction appropriately arises from the difference
         between a direct attack on error occurring at trial and a
         collateral attack on the stewardship of counsel.         In a
         collateral attack, we first presume that counsel is effective,
         and that not every error by counsel can or will result in a
         constitutional violation of a defendant’s Sixth Amendment
         right to counsel.

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (citations omitted).

      We address the first three issues on appeal together, because they

relate to the same issue: whether defense counsel provided ineffective

assistance   by   permitting   Ziegel    to   testify,   without   objection,   about

Appellant’s “hot shot” murder and the murder that Adderley committed at

Appellant’s direction.    We conclude that counsel provided ineffective

assistance, thus necessitating a new trial.



      1. Arguable merit

      Appellant’s claim of ineffective assistance has arguable merit.            The

normal channel for admitting evidence of prior bad acts is Pa.R.E. 404(b)(2),

which provides that evidence of crimes other than the charged offenses

“may be admissible for purpose[s] such as proving motive, opportunity,

                                        - 22 -
J-S54034-17


intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.”   In addition, Rule 404(b)(2) permits admission of prior offenses

under the res gestae exception, “where the evidence became part of the

history of the case and formed part of the natural development of the facts.”

Commonwealth v. Cousar, 154 A.3d 287, 304 (Pa. 2017). “In a criminal

case,” however, evidence of prior crimes “is admissible only if the probative

value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.

404(b)(2). We cannot see how the evidence in question fits within any Rule

404(b)(2) exception.    For example, we do not think that the “hot shot”

murder was part of the natural history of this case; it is a horrific, but

completely unrelated, act of violence. The Commonwealth implicitly appears

to agree that this evidence is irrelevant, for it makes no argument in its brief

that it was admissible under any rule of evidence. Further, assuming that it

met any test of relevance, its potential for prejudice far outweighed its

probative value, a subject we discuss in greater depth below.




      2. Lack of reasonable trial strategy

      Defense counsel testified at the PCRA hearing that he refrained from

objecting because he thought Ziegel’s testimony was patently incredible, and

that he could expose Ziegel as a liar during cross-examination and closing

argument, thus persuading the jury to acquit Appellant on the most serious


                                     - 23 -
J-S54034-17


charge of murder.        The flaw in this rationale is that this testimony—

particularly the inflammatory evidence of the “hot shot” murder—poisoned

the jury’s view of Appellant. No longer did he look like a drug dealer; he

now was branded as a sadistic, cold-blooded killer.        The PCRA court itself

recoiled at this evidence: “[E]ven I was thinking to myself, ouch . . .”    N.T.,

4/27/16, at 93. Not surprisingly, the jury took only one hour and forty-six

minutes, including a lunch break, to reach its verdict of guilt. N.T., 4/12/12,

at 76-77.

      Two decisions influence our analysis.       First, in Commonwealth v.

Moore, 715 A.2d 448 (Pa. Super. 1998), the jury found the defendant guilty

of robbery, attempted murder and other crimes arising from a home

invasion.     Moore, 715 A.2d 449-50.      A police lieutenant testified, without

any objection, that the defendant’s housemate told him that the defendant

was on probation or parole, which led the police to pull the defendant’s

photograph from department files.         Id. at 450-51.    The lieutenant also

testified that the defendant requested that his parole officer be present at

the time he made his statement to the police. Id. at 451. The defendant’s

parole officer testified that he was present when the defendant made his

confession, and that the defendant had been released on parole.              Id.

Defense counsel

            made no objection to this evidence. In fact, in his opening
            statement, [defense counsel] described his client as a
            convicted felon who had spent much of his life in jail . . .
            After [the defendant] took the witness stand in his own

                                       - 24 -
J-S54034-17


           defense, [defense counsel] elicited testimony from [the
           defendant] indicating that he had prior criminal convictions
           for aggravated assault, forgery, and two robberies . . .
           [The defendant] further explained that he was currently on
           parole for robbery. [Defense counsel] never requested nor
           did the trial judge give a cautionary instruction regarding
           the jury’s use of the foregoing evidence.

Id. (citations omitted).

      The jury found the defendant guilty of multiple felonies, and this Court

affirmed his judgment of sentence. Id. at 450. The defendant filed a PCRA

petition which the court granted on the basis of ineffective assistance of

counsel.    Id.   This Court affirmed, reasoning that defense counsel had no

reasonable basis for allowing the evidence relating to the defendant’s parole

status and history of crimes that did not involve dishonesty:

           The Commonwealth . . . contends that [defense counsel]
           had a reasonable basis for his actions.                  The
           Commonwealth asserts that [the defendant]’s parole
           status needed to be introduced to explain [his] parole
           officer[’s] presence at [the defendant]’s confession and the
           manner in which the police obtained [the defendant]’s
           photograph. Moreover, the Commonwealth maintains that
           [defense counsel] had a reasonable basis for eliciting
           testimony from [the defendant] regarding his previous
           convictions because this questioning was part of a trial
           strategy to establish that, despite [the defendant]’s
           criminal history, he was not guilty of the crimes charged.

           . . . [T]he evidence relating to [the defendant]’s parole
           status had no probative value and carried a material
           prejudicial impact. Such evidence did not relate to the
           crimes charged and was not a necessary part of the
           Commonwealth’s case. The manner in which the police
           acquired [the defendant]’s photograph would not assist the
           jury in evaluating the evidence, and contrary to the
           Commonwealth’s assertion, it was not necessary to apprise
           the jury of [the parole officer’s] relationship with [the

                                      - 25 -
J-S54034-17


       defendant]. Rather, by permitting the Commonwealth to
       indicate that [the defendant] was on parole, [defense
       counsel] enabled the jury to infer that [the defendant] had
       been involved in other criminal activity. This evidence
       would tend to lead a jury to conclude that [the defendant]
       would be likely to have committed the crimes in question.
       See Commonwealth v. Sanchez, [] 595 A.2d 617, 620
       ([Pa. Super.] 1991) (noting that references to the
       defendant as an illegal alien were prejudicial because they
       permitted the jury to infer that the defendant was prone to
       engage in criminal conduct).

       Furthermore, while the Commonwealth could have
       introduced [the defendant]’s robbery and forgery
       convictions as crimen falsi to impeach [the defendant]’s
       testimony, [the defendant]’s aggravated assault conviction
       could not have been used for impeachment purposes. See
       generally Commonwealth v. Yarris, [] 549 A.2d 513,
       521 ([Pa.] 1988) (noting that a witness may be impeached
       by evidence that he has prior crimen falsi convictions,
       meaning those that bear on a witness’s honesty and
       truthfulness, such as robbery or theft). Though defense
       counsel may seek to introduce evidence of the defendant’s
       prior convictions in an effort to prevent the prosecution
       from first bringing out such evidence on cross-examination
       of the defendant, before doing so, counsel must be
       convinced that the evidence is available to the prosecution
       to impeach the defendant. Commonwealth v. Zapata, []
       314 A.2d 299, 301 ([Pa.] 1974) (holding that because the
       defendant’s prior voluntary manslaughter convictions were
       not competent evidence in his trial on charges of
       aggravated assault, and because the defense “rested
       squarely” on the credibility of the defendant’s own
       testimony, trial counsel rendered ineffective assistance by
       introducing evidence of these convictions).

       Here, because [the defendant]’s previous aggravated
       assault conviction is not in the nature of crimen falsi and
       does not fall within the exceptions related to other crime
       evidence, the Commonwealth could not have introduced
       this conviction. See Commonwealth v. Seiders, [] 614
       A.2d 689, 692 ([Pa.] 1992) (awarding the defendant a new
       trial where the defendant’s previous sexual assault
       convictions were admitted in his trial for sexual assault and

                                  - 26 -
J-S54034-17


        no exception permitting the introduction of such evidence
        applied).    Nor is it apparent how such a strategy of
        introducing [the defendant]’s criminal history, which
        evidenced a pattern of conduct that resembled the charges
        against him, would be beneficial to [the defendant]’s case.
        Indeed, [the defendant]’s defense relied heavily on his
        own credibility, and evidence of his prior crimes could do
        nothing     but   undermine    his    testimony.       See
        Commonwealth v. Bond, [] 396 A.2d 414, 418 ([Pa.
        Super.] 1978)(granting a new trial on grounds that the
        defendant’s credibility was improperly undermined in his
        trial on robbery and assault charges, by evidence that the
        defendant had previously attempted to extort money from
        the victim). A jury, viewing the evidence in light of [the
        defendant]’s aggravated assault conviction, would likely
        conclude that because [the defendant] had previously
        been convicted of aggravated assault, he had a propensity
        to commit crimes of violence such as those perpetrated [in
        this case]. After considering the nature of the references
        to [the defendant]’s criminal history and due to the fact
        that these references were extensive, we agree with the
        PCRA court that [defense counsel] lacked a reasonable
        basis for his actions . . . See also Commonwealth v.
        Holloman, [] 621 A.2d 1046, 1051 ([Pa. Super.] 1993)
        (holding that the defendant was entitled to a new trial
        where in his trial on robbery charges, the prosecution
        introduced evidence establishing that drugs had been
        found in his residence; the prior crimes evidence had no
        probative value and only served to damage the
        defendant’s character).

Id. at 451-52.

     Second, in Commonwealth v. Candia, 428 A.2d 993 (Pa. Super.

1981), on direct examination, defense counsel asked the defendant, who

was charged with possession with intent to deliver (“PWID”), whether he had

ever been convicted of a crime.     Candia, 428 A.2d at 996.          Defense

counsel’s purpose in asking this question was to “demonstrate [the

defendant’s] honest recollections of past criminal acts [and] to prove [the

                                  - 27 -
J-S54034-17


defendant] credible.”       Id.   The defendant answered that he had pleaded

guilty to a marijuana charge, which opened the door for the Commonwealth

to “ridicule[] his character with the introduction of his past drug-related

criminal activity.”   Id.     The trial court, sitting without a jury, found the

defendant guilty of PWID. Id.

      This Court reversed and remanded for a new trial on the basis of

ineffective assistance:

         Trial counsel’s strategy in seeking this testimony was
         grossly inappropriate for the purposes he sought to
         achieve. The right to full cross-examination which does not
         go beyond the scope of the direct examination is
         guaranteed . . . Trial counsel’s decision to question the
         appellant about his past criminal acts served only to invite
         very damaging cross-examination by the Commonwealth.

         Certainly, trial counsel, who was effective, would not have
         placed [the defendant] on the stand under a theory so
         tenuous as to believe admission of previous criminal acts
         would demonstrate credibility. Even if so incredible a
         theory were possible, no reasonable strategy would follow
         which included the invitation to the Commonwealth to use
         evidence of previous convictions against the appellant.

Id.

      Moore and Candia illustrate the risk, and sometimes the outright

folly, of allowing irrelevant prior crimes into evidence based on the notion

that it will enhance the defendant’s credibility, or diminish a prosecution

witness’s credibility, in the eyes of the factfinder.   Perhaps this strategy is

reasonable when the prior crimes are mundane and the use of this evidence

will expose the Commonwealth witness as a prevaricator.         Even then, this


                                       - 28 -
J-S54034-17


approach is dangerous, as Moore and Candia demonstrate. But if the prior

crimes are as shocking as these, the odds increase exponentially that the

jury will focus on the incendiary facts and ignore any message about

credibility that defense counsel wants to convey.       That is what happened

here.    While defense counsel hoped Ziegel’s testimony about Appellant’s

prior murders would make Ziegel look like a liar, the inflammatory “hot shot”

evidence made Appellant look like a hardened murderer.           No reasonable

attorney would have employed a strategy that was so susceptible to

backfiring.

        In addition, defense counsel eschewed an alternative that “offered a

potential for success substantially greater than the course actually pursued.”

Colavita, 993 A.2d at 887.           The Commonwealth violated Pa.R.E. 404 by

failing to provide advance notice of its intent to use the “hotshot” evidence

or Appellant’s order for Adderley to commit murder. See Pa.R.E. 404(b)(3)

(“[i]n 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”). Moreover, this evidence does not appear to

be   admissible     under    Pa.R.E.    404(b)(2).8   Consequently,   when   the

____________________________________________


8
  Pa.R.E. 404(b)(2) provides that “other acts” evidence may be admissible to
prove, inter alia, “motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Moreover, “in a criminal
(Footnote Continued Next Page)


                                          - 29 -
J-S54034-17


Commonwealth adduced this evidence during Ziegel’s direct examination,

defense counsel should have moved for a mistrial due to lack of notice, lack

of relevance and potential for unfair prejudice. Pa.R.E. 404(b)(2), (3). The

trial court probably would have granted this motion, given its visceral “ouch”

reaction to this evidence, and even if it had denied this motion, Appellant

would have had meritorious grounds for seeking a new trial on direct appeal.

      3. Prejudice

      This evidence prejudiced Appellant because it “could have reasonably

had an adverse effect on the outcome of the proceedings.” Spotz, 84 A.3d

at 315. As stated above, this evidence could not help but poison the jury

against Appellant.        Without this evidence, multiple discrepancies in the

testimony of key prosecution witnesses would have made the case

substantially more difficult for the Commonwealth to win. The three main

Commonwealth witnesses—Ziegel, McCray, and Washington—did not agree

on the reason that they traveled to Adderley’s residence in Somerset

County. Ziegel testified that the purpose of the visit was to rob Adderley;

Washington testified that their purpose was to rob Adderley and then murder

him “for free”; and McCray testified that Appellant told them to murder

Adderley and take $50,000 or $60,000 from another apartment as payment.

                       _______________________
(Footnote Continued)

case, [other acts] evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice.” Id.




                                           - 30 -
J-S54034-17


Ziegel testified that he pucked up fake cocaine with Appellant in order to

defraud Adderley.    McCray, however, testified that the pucked-up cocaine

was real, but fake cocaine ended up at the murder scene.            In addition,

Ziegel’s description of his rise within Appellant’s organization was at odds

with his inability to avoid getting arrested. To hear Ziegel tell it, he received

promotions or favors every time that he wound up behind bars—hardly the

record of a star performer in a criminal enterprise. Finally, Ziegel testified

that Appellant and Adderley appeared to be on good terms just days before

the murder; they had gone to Coney Island together, barbecued together,

and otherwise enjoyed one another’s company. Absent the evidence of the

unrelated murders, we think it possible that defense counsel might have

been able to persuade the jury to reach a different verdict on the basis of

these inconsistencies. Without the “hot shot” evidence, the jury might have

found that Appellant lacked the intent to murder or conspire to murder

Adderley and acquitted Appellant of murder and conspiracy.

      The corrupt organizations verdict might have changed as well.          The

corrupt organizations charge required the Commonwealth to prove a

“pattern of racketeering activity,” that is, “a course of conduct requiring two

or more acts of racketeering activity.”       18 Pa.C.S. § 911(b)(3) & (h)(4).

Murder is an “act of racketeering activity.” 18 Pa.C.S. § 911(h)(1)(i). The

two alleged acts of racketeering in this case were “illegally possessing and

distributing controlled substance[s]” and “the homicide.” N.T., 4/12/12, at


                                     - 31 -
J-S54034-17


53 (jury instructions).   Thus, had defense counsel convinced the jury to

acquit Appellant on the murder charge, it likely would have acquitted him on

the corrupt organizations charge as well due to the lack of a pattern of

racketeering activity.

      The verdict on the charge of criminal use of a communication facility

might also have changed. The Crimes Code provides: “A person commits a

felony of the third degree if that person uses a communication facility to

commit, cause or facilitate the commission or the attempt thereof of any

crime which constitutes a felony under this title or under . . . [t]he

Controlled Substance, Drug, Device and Cosmetic Act.”            18 Pa.C.S. §

7512(a). The trial court instructed the jury that it could find Appellant guilty

if it determined that he used his cell phone to “facilitate . . . the commission

of the crimes of distribution of a controlled substance and homicide.” N.T.,

4/12/12, at 60 (emphasis added). Thus, a different decision on the murder

charge might have changed the verdict under section 7512 as well.

      Finally, with regard to the charge of sale of a non-controlled

substance, our lack of confidence in the verdicts on the other charges

influences us to order a new trial on this charge as well.




                                CONCLUSION




                                     - 32 -
J-S54034-17


      Appellant raises multiple additional claims of ineffective assistance in

his brief, but we need not address them in view of our decision to grant him

a new trial based on the issue examined above. We therefore reverse the

PCRA court’s order denying relief and remand for a new trial on all charges.

      Order reversed. Judgment of sentence vacated. Case remanded for

new trial. Jurisdiction relinquished.

      Judge Ott Joins.

      Judge Moulton Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/26/2017




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