J-S56037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ANTHONY KAREEM HAYES,

                            Appellee                  No. 594 MDA 2015


                   Appeal from the PCRA Order March 24, 2015
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0007258-2009


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 10, 2015

        The Commonwealth of Pennsylvania appeals from the court’s order

granting in part the petition filed by Appellee, Anthony Kareem Hayes,

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

9546, and ordering a new trial. We affirm.

        This case stems from the September 26, 2009 stabbing-death of

Kenneth Ramos. A previous panel of this Court summarized the underlying

facts as follows:

               [Appellee], Jamell McMillan and the decedent were
        together during a party at a certain home. At some point, they
        left the party, apparently to obtain more beer, but then returned
        to the aforesaid residence. McMillan would later testify that,
        when the three men returned to the home, he exited their car
        and walked towards the front of the house. While he did so,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       [Appellee] and the decedent alighted from the vehicle and
       argued.      According to McMillan, the decedent punched
       [Appellee], knocking him down. Thereafter, the two engaged in
       a physical fight until the decedent dropped to the ground.

             [Appellee] told McMillan to come to the vehicle, and the
       latter did so. When McMillan entered the car, he saw that
       [Appellee] was holding a knife in his hand. [Appellee] then said
       that he had killed the decedent.

             During the altercation between [Appellee] and the
       decedent, a witness named Tessa Hollinger was in a nearby
       parked car. She saw two men arguing and fighting. Eventually,
       she saw one of the two fall to the ground. She could not identify
       either person in the fight.

            Two other individuals, Michael Smith and David Floyd,
       would eventually testify that [Appellee] told them he had
       stabbed the decedent.

             At trial, a forensic pathologist would testify that the
       decedent died from a stab wound that cut his spinal cord and
       brainstem.     The pathologist opined that the death was a
       homicide.

             [Appellee]     was     arrested     and   charged   with   multiple
       offenses. . . .

(Commonwealth v. Hayes, No. 554 MDA 2012, unpublished memorandum

at *1-*2 (Pa. Super. filed Dec. 5, 2012)).

       On October 18, 2011, the Commonwealth filed a pre-trial motion in

limine seeking to introduce evidence of Appellee’s prior gang activity as

motive for the killing. See Pa.R.E. 404(b)(1)-(2).1 The trial court granted
____________________________________________


1
  Under Pennsylvania Rule of Evidence 404(b), “[e]vidence 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.” Pa.R.E. 404(b)(1). However, “[t]his evidence may be
(Footnote Continued Next Page)


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the motion and Appellee proceeded to a jury trial on December 12, 2011.

The Commonwealth’s theory of the case was based on an intra-gang rivalry

between Appellee and the victim.             (See N.T. Trial, 12/12/11, at 87; N.T.

Trial, 12/14/11, at 392, 395, 401-02).            The testimony reflected that they

were members of the “Valentine” gang, a local chapter of the larger “Bloods”

gang, and that the victim was the leader of the Valentines.                (N.T. Trial,

12/12/11,    at   211,      261;    see    also   id.   at   209-15,   261-63).      The

Commonwealth presented evidence that Appellee may have killed the victim

in order to take control of the gang. (See id. at 139, 206, 263, 283). At

the conclusion of trial, defense counsel did not request a limiting instruction

regarding the gang references, and the court did not give the applicable

standard jury instruction. (See PCRA Court Opinion, 3/24/14, at 14) (citing

Pa.SSJI Crim. 3.08).2

                       _______________________
(Footnote Continued)

admissible for another purpose, such as proving motive[.]”                        Pa.R.E.
404(b)(2).
2
   Instruction 3.08 states in pertinent part: “This evidence is before you for a
limited purpose, that is, for the purpose of tending to [show motive]. This
evidence must not be considered by you in any way other than for the
purpose I just stated. You must not regard this evidence as showing that
the defendant is a person of bad character or criminal tendencies from which
you might be inclined to infer guilt.” Pa.SSJI Crim. 3.08(2).




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      The jury acquitted Appellee of first-degree murder and convicted him

of third-degree murder. On February 2, 2012, the trial court sentenced him

to a term of not less than twenty nor more than forty years’ incarceration.

Appellee filed a post-sentence motion, which the trial court denied.       This

Court affirmed the judgment of sentence on December 5, 2012.               (See

Commonwealth v. Hayes, 64 A.3d 10 (Pa. Super. 2012)). Our Supreme

Court denied Appellee’s petition for allowance of appeal on June 27, 2013.

(See Commonwealth v. Hayes, 70 A.3d 809 (Pa. 2013)).

      On October 10, 2013, Appellee filed a pro se “Petitio L’ Breve d’

Habeas Corpus Ad Subjiciendum,” which the PCRA court treated as a PCRA

petition.    The court appointed counsel, who filed amended PCRA petitions,

raising several allegations of trial counsel ineffectiveness.   Material to the

instant appeal is the claim that counsel was ineffective for failing to request

a limiting instruction regarding Appellee’s gang activities. The court heard

testimony on this issue on January 29, 2015. At the hearing, trial counsel

testified:

            Q. Did you have any discussions with [Appellee] about
      any instructions on gang activity?

             A. I don’t believe so. We talked a lot about the gang
      activity because that came up. [The Commonwealth] had filed,
      you know, to have that admitted, and we fought pretty hard
      against that one, but [the trial court] denied us and allowed that
      evidence in, and I know one of the complaints here is me not
      asking for an instruction on, you know, motive and gang activity,
      and my recollection is, you know, the standard instruction is
      enough, and I believe [the trial court] gave it where the
      standard instruction, the Commonwealth need not prove motive,


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     but if they do, you know, you are allowed to consider it, but I
     didn’t request anything specific with regard to that.

           Q. So in your opinion, the standard instruction as given by
     [the trial court] was sufficient to cover the issue?

           A. Yeah, and I mean the gang activity, that was—that was
     a tough issue to deal with in the trial, and we don’t want to keep
     bringing attention to it, especially what happened with the one
     juror and the hearts on the driveway, but, no, I did not request
     anything specific with regard to that.

                                 *    *     *

     Q. Regarding the limit[ing] instruction on the gang testimony,
     you did not request that to the jury, is that correct, in a charging
     instruction?

     A. With regard to motive?

     Q. With regard to there was testimony regarding gang activity
     and what purpose that could be used for to the jury as not to
     infer anything negative as to that gang activity and testimony
     other than the intended purpose for which it was used, and in
     this case, I think it was motive.

     A. That’s what the gang activity was solely related to was
     motive, and I know there is a standard instruction with regard to
     motive, and I’m 99 percent sure [the trial court] would have
     given that, so, no, I guess [the] simple answer is no, I didn’t
     request any additional instruction specific to that issue.

     Q. Specific to the gang issue?

     A. Yes.

     Q. And just so the record is clear specific to the gang issue, that
     the jury should not consider that for any other purpose other
     than motive, that instruction wasn’t given—

     A. No.

     Q. —or requested by you, is that correct?



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       A. No, because during the course, too, of jury deliberations, the
       gang issue was all over the place because the one juror came in
       sobbing the next morning. I asked for a mistrial because she
       had valentines painted on her driveway, and it was just an
       overriding theme with regard to everything.

(N.T. PCRA Hearing, 1/29/15, at 29-30, 36-37).

       On March 24, 2015, the PCRA court entered its order and supporting

opinion denying Appellee’s petition in part and granting it in part.

Specifically, the court denied the PCRA petition as it related to all issues

except trial counsel ineffectiveness for failure to request a limiting

instruction regarding Appellee’s gang activity. (See Order, 3/24/15, at 1).

The court ordered a new trial on this basis. (See id.). This timely appeal

followed.3

       The Commonwealth raises one issue for our review:

       1.    Whether the PCRA court erred in granting [Appellee] a new
       trial where [t]rial [c]ounsel had a reasonable basis for not
       requesting a jury instruction regarding gang activity and where
       [Appellee] was not prejudiced by [counsel’s] actions?

(Commonwealth’s Brief, at 4).

             In PCRA appeals, our scope of review is limited to the
       findings of the PCRA court and the evidence on the record of the
       PCRA court’s hearing, viewed in the light most favorable to the
       prevailing party. Because most PCRA appeals involve questions
       of fact and law, we employ a mixed standard of review. We
       defer to the PCRA court’s factual findings and credibility
____________________________________________


3
  Pursuant to the PCRA court’s order, the Commonwealth filed a timely
concise statement of errors complained of on appeal on April 10, 2015. See
Pa.R.A.P. 1925(b). The PCRA court filed an opinion on April 15, 2015, in
which it relied on its prior opinion entered March 24, 2015. See Pa.R.A.P.
1925(a).



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      determinations supported by the record. In contrast, we review
      the PCRA court’s legal conclusions de novo.


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

2015) (en banc) (citations and quotation marks omitted).

      On appeal, the Commonwealth contends that the PCRA court erred in

determining that trial counsel rendered ineffective assistance by failing to

request a limiting instruction regarding Appellee’s gang affiliation.    (See

Commonwealth’s Brief, at 12-20).      It argues that counsel’s strategy was

reasonably designed to advance Appellee’s interest where she testified the

standard jury instruction sufficiently covered the topic. (See id. at 16). The

Commonwealth maintains that counsel’s strategy was also reasonable where

an instruction would have drawn additional attention to the gang evidence,

which she wanted to minimize.      (See id.).    The Commonwealth further

argues that Appellee was not prejudiced by counsel’s failure to request an

instruction. (See id. at 18). We disagree.

      Initially, we observe that Appellee was the prevailing party at the

PCRA level. “Thus, we must review the record in a light most favorable to

him, not the Commonwealth.” Commonwealth v. Stewart, 84 A.3d 701,

706 (Pa. Super. 2013), appeal denied, 93 A.3d 463 (Pa. 2014).

      To prevail on a petition for PCRA relief, a petitioner must plead and

prove, by a preponderance of the evidence, that his conviction or sentence

resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A.

§ 9543(a)(2). These circumstances include ineffectiveness of counsel, which


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“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).

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

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

showing by the petitioner.”   Commonwealth v. Walker, 110 A.3d 1000,

1003 (Pa. Super. 2015) (citation omitted).

           To be eligible for relief based on a claim of ineffective
     assistance of counsel, a PCRA petitioner must demonstrate, by a
     preponderance of the evidence, that (1) the underlying claim is
     of arguable merit; (2) no reasonable basis existed for counsel’s
     action or omission; and (3) there is a reasonable probability that
     the result of the proceeding would have been different absent
     such error. . . .

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013), appeal

denied, 74 A.3d 1030 (Pa. 2013) (citation omitted).

           A claim has arguable merit where the factual averments, if
     accurate, could establish cause for relief. Whether the facts rise
     to the level of arguable merit is a legal determination.

            The test for deciding whether counsel had a reasonable
     basis for his action or inaction is whether no competent counsel
     would have chosen that action or inaction, or, the alternative,
     not chosen, offered a significantly greater potential chance of
     success. Counsel’s decisions will be considered reasonable if
     they effectuated his client’s interests. We do not employ a
     hindsight analysis in comparing trial counsel’s actions with other
     efforts he may have taken.

            Prejudice is established if there is a reasonable probability
     that, but for counsel’s errors, the result of the proceeding would
     have been different. A reasonable probability is a probability
     sufficient to undermine confidence in the outcome.

Stewart, supra at 707 (citations and quotation marks omitted).



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     “Evidence of a defendant’s prior criminal activity is inadmissible to

demonstrate his bad character or criminal propensity. The same evidence

may be admissible for various legitimate purposes, however, provided that .

. . an appropriate limiting instruction is given.”       Commonwealth v.

Collins, 70 A.3d 1245, 1252 (Pa. Super. 2013), appeal denied, 80 A.3d 774

(Pa. 2013) (citation omitted; emphasis addded).

     Evidence of a defendant’s prior bad acts is generally
     inadmissible, and where such evidence is admitted, a defendant
     is entitled to a jury instruction that the evidence is admissible
     only for a limited purpose. Where evidence of a defendant’s
     prior bad acts is merely a fleeting or vague reference, however,
     trial counsel might reasonably decline to object or request a
     limiting instruction to avoid drawing attention to a reference that
     might have gone relatively unnoticed by the jury.

Commonwealth v. Hutchinson, 811 A.2d 556, 561-62 (Pa. 2002), cert.

denied, 540 U.S. 858 (2003) (citations omitted; emphasis added).

     Instructive to the issue before us is our Supreme Court’s decision in

Commonwealth v. Billa, 555 A.2d 835 (Pa. 1989).                In Billa, the

Commonwealth introduced evidence of the circumstances of a prior offense

committed by the defendant to show his intent and motive in murdering the

victim. See id. at 838-39. The trial court failed to give a jury instruction

explaining the limited purpose for which the evidence was relevant and

admissible, and trial counsel did not request that the court give such

instruction. See id. at 841-42. Our Supreme Court determined that trial

counsel was constitutionally ineffective in failing to request an appropriate

limiting instruction and that a new trial was necessary. See id. at 843.


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       Turning to the instant case, it is apparent that Appellee’s underlying

claim has arguable merit, where our case law establishes that he was

entitled to a limiting instruction on the prior bad acts evidence.         See

Hutchinson, supra at 561-62; Collins, supra at 1252; Billa, supra at

842.

       Further, a review of PCRA proceedings shows that trial counsel lacked

a reasonable basis for failing to request a limiting instruction. First, counsel

explained that she did not request a specific instruction because she believed

the trial court’s standard instruction adequately addressed the issue of the

gang evidence.      (See N.T. PCRA Hearing, 1/29/15, at 29-30, 36-37).

However, as discussed above, the record reflects that the court did not give

the standard Rule 404(b) instruction.     (See N.T. Trial, 12/14/11, at 403-

427; PCRA Ct. Op., at 10, 14).

       Second, counsel testified that she did not request a limiting instruction

because she did not want to draw the jury’s attention to the gang issue.

(See N.T. PCRA Hearing, 1/29/15, at 30, 37).                However, as the

Commonwealth acknowledges, defense counsel herself brought the gang

issue to the jury’s attention during closing argument. (See Commonwealth’s

Brief, at 15-16). In fact, her first comments to the jury during closing were

on this topic.   (See N.T. Trial, 12/14/11, at 378-39).      Further, while we

recognize that counsel might reasonably decline to request a limiting

instruction to avoid drawing attention to a fleeting or vague reference that

might have gone unnoticed by the jury, see Hutchinson, supra at 561-62,

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the gang references in the instant case cannot be characterized as fleeting

or vague.   By counsel’s own description, “the gang issue was all over the

place” and “an overriding theme with regard to everything.”      (N.T. PCRA

Hearing, 1/29/15, at 37). The PCRA court noted ninety-one gang references

in the trial notes of testimony, and the jurors were questioned about their

feelings regarding gang membership during voir dire. (See Trial Ct. Op., at

13; N.T. Trial, 12/12/11, at 33-34). Thus, the jury’s attention had already

been focused on the gang issue, and counsel’s failure to request an

instruction limiting its consideration of this damaging evidence lacked a

reasonable basis. See Billa, supra at 843.

     Finally, Appellee was prejudiced by counsel’s error where the gang

evidence was admissible only for the limited purpose of establishing motive,

and the court did not caution the jury against regarding it as showing

Appellee is a person of bad character or that he has criminal tendencies.

Given the extensive nature of the references, the omission of a limiting

instruction is sufficient to undermine confidence in the trial’s outcome. See

Stewart, supra at 707; Billa, supra at 842-43.

     In sum, upon review, we discern no error in the PCRA court’s

determination that counsel was ineffective for failing to request a limiting

instruction regarding the gang evidence. See Reyes-Rodriguez, supra at

779. Accordingly, we affirm the order of the PCRA court.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015




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