J-S14019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAQUILL JAMES BLAKE,

                            Appellant                No. 1429 MDA 2016


                  Appeal from the PCRA Order August 5, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003085-2011


BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 20, 2017

       Appellant, Jaquill James Blake, appeals from the order denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court summarized the factual history of this case as follows:

             On April 14, 2011, around 6:00 p.m., witnesses saw an
       argument ensue between two men in the Glenside Housing
       Project, located in the city of Reading, Pennsylvania. One of the
       men, the Appellant, was dressed in ripped jeans, black sneakers,
       and a dark hooded sweatshirt; the other, whose name was
       Alexis Rosario [(“Rosario”)], was wearing a white tee shirt and
       basketball shorts.     Suddenly, the Appellant opened fire on
       Rosario, who backed away and tried to run. Rosario “couldn’t
       run away much,” however, because he fell between two parked
       cars. Appellant then proceeded to fire at least five additional
       shots at Rosario after he fell. While bystanders fled the area,
____________________________________________


*
    Retired Senior judge assigned to the Superior Court.
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     Appellant ran from the scene, climbed into a red truck parked
     nearby, and quickly departed from the neighborhood.

           The red truck was driven by Dean Schappell
     [(“Schappell”)], of Hamburg, Pennsylvania. Schappell was in the
     city that evening to purchase illegal drugs from the Appellant.
     [Schappell] had previously met up with the Appellant downtown,
     and Appellant asked Schappell to drive him to the Glenside
     neighborhood, which he did. Appellant exited the vehicle and
     asked Schappell to wait for him. While Schappell waited, he
     heard gunshots, then turned his head and saw the Appellant
     with a gun, “shooting a man in the street.” After [Rosario] had
     been shot numerous times, the Appellant returned to Schappell’s
     truck and said “let’s go.”     Schappell complied and drove
     Appellant to an Econolodge hotel located approximately three
     miles away. At that location, Schappell purchased six bags of
     cocaine from the Appellant, who exited the vehicle and went
     inside the hotel.    Schappell then returned to his home in
     Hamburg.

            Meanwhile, police were called and began an investigation
     into the shooting. Officer Adam Linderman arrived at the scene
     and found a large crowd of people at the scene of the crime. He
     found [Rosario] lying facedown, bleeding, between two vehicles.
     While rendering first aid, Officer Linderman noted at the time
     that Rosario had suffered multiple gunshot wounds. Rosario was
     pronounced dead at 8:18 p.m. [Rosario’s] body was transported
     that evening to the morgue at the Reading Hospital, where an
     autopsy was performed the next morning. The autopsy report
     identified ten distinct gunshot wounds to [Rosario].

           Investigators found eight spent cartridge casings at the
     scene of the crime. They found two divots in the asphalt
     underneath [Rosario’s] body, as well as numerous bullet holes in
     [his] clothing. Additional bullet fragments and projectiles were
     found inside and around [Rosario’s] body.

           Police subsequently interviewed witnesses[,] whose
     statements named Appellant as the person who shot Rosario. A
     warrant to search Appellant’s apartment was executed on May
     13, 2011. When police arrived at the apartment, they found the
     Appellant’s belongings, which had been placed in trash bags and
     were located outside the apartment in a carport. Inside one of
     the bags, police found a brass casing containing the same

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        identifying markings as the casings found at the scene of the
        crime.

PCRA Court Opinion, 10/31/16, at 2-3 (internal citations omitted).

        The PCRA court summarized the procedural history of this case as

follows:
               On September 14, 2012, a jury convicted [Appellant] of
        first-degree murder, third-degree murder, carrying a firearm
        without a license, possessing an instrument of crime, and
        reckless endangerment.[1]      Appellant was sentenced on
        September 17, 2012, to life imprisonment. Appellant’s trial
        counsel filed a notice of appeal on October 5, 2012.      On
        February 11, 2014, the Superior Court affirmed Appellant’s
        conviction on all counts.

               On May 27, 2014, Appellant filed a petition pursuant to the
        [PCRA]. We duly appointed Peter David Maynard, Esq. as PCRA
        counsel. Appellant’s counsel asserted that there was possible
        merit to a claim of ineffective assistance of counsel. After
        receiving this motion, we conducted a hearing and subsequently
        asked Counsel for Appellant and the Commonwealth to prepare
        briefs. Briefs were filed by both parties. After reviewing the
        briefs, the record and a hearing, we dismissed both claims on
        August 5, 2016.

              Appellant filed a notice of appeal on August 16, 2016, and
        his counsel filed a notice of appeal on August 31, 2016. As
        Appellant was still represented, we directed counsel to file a
        concise statement of errors pursuant to [Pa.R.A.P. 1925(b)].
        The concise statement was timely filed on September 20,
        2016.[2]   Appellant [raised] the following matters [sic] for
        appellate review:
____________________________________________



1
    18 Pa.C.S. §§ 2502(a) and (c), 6106(a)(1), 907(b), and 2705.

2
  We note that Appellant filed a pro se Pa.R.A.P. 1925(b) statement on
September 29, 2016. Because Appellant was represented by counsel, that
pro se filing was a legal nullity. See Commonwealth v. Ali, 10 A.3d 282,
293 (Pa. 2010) (concluding that where appellant was clearly represented by
(Footnote Continued Next Page)


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             1.     The Court erred in not finding trial counsel
             ineffective for failing to object to the introduction of
             evidence at time of trial concerning [Appellant]
             dealing in controlled substances.              Evidence
             concerning [Appellant] being a drug dealer was
             irrelevant, immaterial and highly prejudicial, and
             served no legitimate purpose.

PCRA Court Opinion, 10/31/16, at 1.               The PCRA court issued an opinion

pursuant to Pa.R.A.P. 1925(a).

      On appeal, Appellant presents the following issue for our review:

      A.     Where a defendant is convicted of murder, is he entitled to
      a new trial due to the ineffective assistance of trial counsel,
      when trial counsel failed to file a motion in limine before trial to
      bar evidence of drug dealing at time of trial by the Appellant,
      trial counsel failed to object at time of trial to the introduction of
      immaterial, inadmissible and prejudicial testimony concerning
      the distribution of street drugs by the Appellant, trial counsel
      failed to ask for a cautionary instruction regarding the said
      testimony when introduced, and trial counsel failed to request
      any cautionary instruction concerning this evidence during the
      [c]ourt’s final instructions to the jury, where such testimony is
      wholly extraneous to the murder in question?

Appellant’s Brief at 4.

      Although Appellant appears to present a single issue on review, a close

reading of this singular statement reveals that Appellant has attempted to

raise several issues related to trial counsel’s ineffectiveness.      However, as

noted previously, Appellant preserved a single issue in his counseled

Pa.R.A.P. 1925(b) statement: that trial counsel was ineffective for failing to
                       _______________________
(Footnote Continued)

counsel on appeal, appellant’s pro se statement of errors complained of on
appeal was a legal nullity).



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object to the introduction of evidence at the time of trial concerning

Appellant’s drug dealing.     Pa.R.A.P. 1925(b) statement, 9/20/16, at 1.

Thus, only that issue has been preserved for our review.

      Our Supreme Court has explained the following in addressing an

ineffective assistance of counsel claim:

         To prevail in a claim of ineffective assistance of counsel, a
      petitioner must overcome the presumption that counsel is
      effective by establishing all of the following three elements, as
      set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975–76 (1987):        (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.

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).               “In order to

meet the prejudice prong of the ineffectiveness standard, a defendant must

show that there is a ‘reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

      A claim of ineffective assistance of counsel will fail if the petitioner

does not meet any of the three prongs. Commonwealth v. Williams, 863

A.2d 505, 513 (Pa. 2004). “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      Appellant argues that trial counsel was ineffective for failing to object

at trial to the introduction of evidence indicating that Appellant was a drug

dealer. Appellant’s Brief at 12-13. Appellant contends that introduction of

this evidence violated Pa.R.E. 404(b), which prohibits introduction of prior

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criminal activity on the part of the accused.            Id. at 19.    Appellant further

asserts that none of the exceptions for admission of this evidence applied in

this case. Id. Specifically, Appellant maintains, the res gestae exception is

not applicable in this matter “as the ‘complete story’ of Schappell’s

relationship    with   [Appellant]     was     totally   unnecessary     to   the   jury’s

understanding of what occurred that day between [Appellant] and Mr.

Rosario.” Id. at 19. Appellant posits that introduction of this evidence only

served to prejudice Appellant in the eyes of the jury.3 Id.

       Our Supreme Court has discussed evidence of other bad acts and the

related exceptions as follows:

       Generally, evidence of prior bad acts or unrelated criminal
       activity is inadmissible to show that a defendant acted in
       conformity with those past acts or to show criminal propensity.
       Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
       admissible when offered to prove some other relevant fact, such
       as motive, opportunity, intent, preparation, plan, knowledge,
       identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
       In determining whether evidence of other prior bad acts is
       admissible, the trial court is obliged to balance the probative
       value of such evidence against its prejudicial impact.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).

       As this Court recently reiterated:

       [w]hile evidence of prior bad acts is not admissible to show
       criminal propensity, evidence of other crimes may be admissible
____________________________________________


3
  Appellant also makes an argument regarding trial counsel’s failure to
request a cautionary instruction regarding this evidence. As explained
previously, however, this issue was not raised in Appellant’s counseled
Pa.R.A.P. 1925(b) statement.



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      if it is relevant to show some other legitimate purpose.
      Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super.
      2015). An exception to Rule 404(b) exists that permits the
      admission of evidence where it became part of the history of the
      case and formed part of the natural development of facts.
      Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa. 2015).
      This exception is commonly referred to as the res gestae
      exception. Id.

Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016).                 Our

Supreme Court has observed that a trial court is not “required to sanitize the

trial to eliminate all unpleasant facts from the jury’s consideration where

those facts are relevant to the issues at hand and form part of the history

and natural development of the events and offenses for which the defendant

is charged.”   Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa. 2002)

(quoting Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988)).

      In addressing Appellant’s claim, the PCRA court provided the following

analysis:

      At trial, the Commonwealth relied upon Mr. Schap[p]ell’s
      testimony placing Appellant at the murder scene, as well as [his]
      being a witness to the crime. Mentioning the drug trade was a
      necessary part of the story, as it provided context as to why Mr.
      Schap[p]ell was at the crime scene and why he drove Appellant
      to the motel after committing the crime. Without the causal
      connection of the sale of drugs, there would have been no
      reason for Mr. Schap[p]ell to provide transportation services,
      which, in turn, place[d] Mr. Schap[p]ell at the scene of the
      crime. Moreover, the drug related activity occurred close in time
      and place to the crime. As compensation for Mr. Schap[p]ell
      functioning as Appellant’s getaway driver, Mr. Schap[p]ell was
      rewarded with the right to purchase several bags of drugs. This
      evidence, paying the getaway driver with drugs, directly
      connects the murder to Appellant’s involvement in the drug
      trade. Therefore, we conclude that the testimony of Appellant’s


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      involvement in the drug trade was within the Res Gestae
      exception[.]

PCRA Court Opinion, 10/31/16, at 4-5.

      In light of the above-referenced tenets regarding admission of

evidence of unrelated criminal activity, we are compelled to agree with the

PCRA court’s conclusion that the underlying claim lacks arguable merit. The

introduction of evidence regarding Appellant’s drug-dealing activities related

to the history of the case and formed the natural development of facts.

Thus, the evidence was properly admitted at trial, and trial counsel was not

ineffective for failing to object to its introduction. Accordingly, Appellant fails

to prove a claim of ineffective assistance of counsel for failure to establish

that the underlying claim was of arguable merit. Paddy, 15 A.3d at 442.

      Additionally, Appellant has failed to prove the prejudice prong of the

ineffective assistance of counsel standard.          There was overwhelming

evidence presented at trial that established that Appellant was guilty of the

crimes for which he was convicted. As the PCRA court explained:

      The Commonwealth at trial presented significant evidence
      besides the evidence of prior bad acts. Such evidence included:
      video evidence showing the callous manner in which Appellant
      murdered the victim; two eyewitnesses who can place Appellant
      at the scene of the murder and witnessed him doing it; and
      physical evidence that all the bullets came from the same gun.

PCRA Court Opinion, 10/31/16, at 5-6.

      The PCRA court’s summation of evidence presented at trial is

supported by the record.       Thus, even if counsel had objected and the


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evidence regarding Appellant’s drug-dealing was excluded, it is not probable

that the outcome of the trial would have been different.     Accordingly, we

cannot conclude that Appellant was prejudiced by any alleged ineffectiveness

for failure to object to the admission of this evidence.   Reed, 42 A.3d at

319. Appellant has failed to establish a meritorious claim of trial counsel’s

ineffective assistance.

      Order affirmed.

      Judge Strassburger files a Concurring Memorandum in which P.J.

Gantman concurs in the result.

      P.J. Gantman concurs in the result in this Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2017




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