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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

JOHN IN

                            Appellant                         No. 3021 EDA 2013


                  Appeal from the PCRA Order October 11, 2013
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0004829-2007


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

MEMORANDUM BY STABILE, J.:                                 FILED OCTOBER 26, 2016

        Appellant John In appeals from the October 11, 2013 order of the

Court of Common Pleas of Philadelphia County (“PCRA court”), which denied,

without an evidentiary hearing, his request for collateral relief under the Post

Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we

vacate and remand.

        The   facts   and    procedural        history   underlying   this   appeal   are

undisputed.1



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Unless otherwise specified, these facts are borrowed from this Court’s July
23, 2010 Memorandum affirming Appellant’s judgment of sentence. See
Commonwealth v. In, No. 1389 EDA 2009, unpublished memorandum, at
1-3 (Pa. Super. filed July 23, 2010).
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        On March 7, 2007, three men entered Vuthary Yun’s house, and one of

the men pointed a gun at his head. The man with the gun pushed Yun into

the basement and demanded money and jewelry.             Yun’s daughter, Dina

Khem, who was in her bedroom in the basement, called 911 when she heard

a man’s voice yelling at her father. A few minutes later, when Dina heard

police upstairs, she exited her room and walked to the basement steps,

where she observed her father and Appellant at the top of the steps. When

Dina attempted to speak to her father, Appellant turned to face her, pointed

the gun at her, and told her to “shut the fuck up.” Dina testified that she

observed Appellant for approximately two minutes before returning to her

room.     While Yun was being held in the basement, co-conspirators Jerry

Jean and Dyshon Marable (“Marable”) were on the second floor, robbing

Dina’s younger sister, Christina Khem, of her jewelry.

        When Officer Roger Birch arrived outside of the victims’ home, he

observed Appellant kneeling beside a white Nissan Altima. Appellant entered

the vehicle and sped eastbound. Officer Birch pursued him in his patrol car

for approximately one block before Appellant crashed the Altima into a

house.      Appellant exited the vehicle and fled on foot before being

apprehended by police.     Police later took Dina to the patrol car in which

Appellant was being held, and Dina identified him as the gunman who held

her father in the basement.

        Officer Kevin Cannon observed co-conspirator Jean hiding between two

parked cars near the white Nissan Altima.       Police arrested Jean shortly

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thereafter and found pieces of a latex glove in his sweatshirt.                  Co-

conspirator Marable was later found hiding in a closet on the second floor of

the victims’ home.

        Police recovered a 0.9 mm semi-automatic handgun from the driver’s

side of the white Nissan Altima. Latex gloves and three traffic tickets listing

the name Jerry Jean were also recovered from the vehicle.                   Another

handgun and a latex glove were found in a shed in the victims’ backyard.2

Later, Yun discovered that sixty dollars had been taken from his wallet.

        Subsequently,     Appellant     was    charged   with   burglary,   robbery,

possession of an instrument of crime, criminal conspiracy, and violations of

the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-6127. The case proceeded

to a jury trial, at which the Commonwealth sought to present the testimony

of Appellant’s co-conspirator Marable. On the second day of trial, outside of

the jury’s presence, Marable indicated to the Commonwealth and the trial

court that he would not testify against Appellant and, if called to the stand,

would remain silent.3       N.T. Trial, 9/11/08, at 61-64.      Ultimately, the trial

court held Marable in contempt and sentenced him to six months’

imprisonment.
____________________________________________


2
    Jean had hidden in the backyard shed after fleeing from the victims’ house.
3
   Marable’s attorney advised Marable that he did not have a Fifth
Amendment right against self-incrimination because Marable already had
pled guilty in this case. Marable’s attorney relayed to the trial court that
Marable would not testify because Marable had received several threats to
his life and health. N.T. Trial, 9/11/08, at 58-59.



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       After Marable exited the courtroom, the Commonwealth informed the

trial court that it still intended to call him as a witness. The Commonwealth

anticipated that Marable would remain silent and, to identify Marable for the

benefit of the jury, it would request Sheriff Guess to read Marable’s

wristband. The Commonwealth also anticipated that it would ask Detective

Hopkins to testify about the fact that Marable gave a post-arrest statement.4

       Upon the jury’s return, the Commonwealth called Marable to testify.

Marable remained silent.         Sheriff Guess identified Marable by examining

Marable’s prison identification card.          Marable then was escorted from the

courtroom. Thereafter, the Commonwealth informed the trial court and the

jury that it had entered into a stipulation with Appellant’s attorney with

respect to Marable’s guilty plea. Specifically, the Commonwealth noted:

       There’s been a stipulation by and between counsel that in the
       case of Commonwealth v. Marable, Common Pleas Court No.
       51-CR-0004827-2007 . . ., before the Honorable Judge Byrd,
       [Marable] pled guilty to three counts of robbery. Victims being
       Vuthay Yun, Dina Khem, and Christina Khem. Pled guilty to
       burglary of the house at 720 Mifflin Street. Pled guilty to
       possession of an instrument of crime, [and] conspiracy regarding
       the incident that happened on March 7th, 2007. In exchange to
       his guilty plea . . . [Marable] was sentenced to a period no less
       than five no more than ten years’ incarceration.

Id. at 78. Trial counsel did not request any cautionary instruction informing

the jury that it should not infer Appellant’s guilt from Marable’s admitted

guilt (guilt by association) and refusal to testify.

____________________________________________


4
  The parties agreed that the content of Marable’s post-arrest statement
need not be disclosed to the jury.



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       The Commonwealth then offered the testimony of Detective Hopkins,

who testified that Marable gave a post-arrest statement after being

Mirandized.5, 6

       During its closing argument, the Commonwealth stated without

objection by Appellant’s attorney:

       And you saw [Marable], he wouldn’t even say his name, let alone
       be sworn in. Well, why? He took a plea, he’s serving his time.
       He’s not going to snitch on his buddy, no matter what the
       consequences to him. You saw, you saw the attitude he
       gave everybody including the Judge. Well, that’s his boy, I
       brought him down here. He’s not going to testify for the
       Commonwealth, right?

N.T. Trial, 9/12/08, at 46 (emphasis added).

       On September 15, 2008, the jury found Appellant guilty of conspiracy,

burglary, two counts of robbery, possession of an instrument of crime, and

violating Sections 6106 and 6108 of the Uniform Firearms Act. Pursuant to

Appellant’s motion to sever the charge of violating Section 6105 of the

Uniform Firearms Act, the trial court conducted a separate bench trial and

found him guilty of that charge.           On December 19, 2008, the trial court

sentenced Appellant to an aggregate term of twenty-five to fifty years’

imprisonment followed by ten years’ probation.

       As noted earlier, on July 23, 2010, a panel of this Court affirmed

Appellant’s judgment of sentence. On January 5, 2011, our Supreme Court
____________________________________________


5
    See Miranda v. Arizona, 384 U.S. 436 (1966).
6
 It appears that Detective Conn likewise testified about Marable providing a
post-arrest statement. N.T. Trial, 9/11/08, at 13.



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denied Appellant’s petition for allowance of appeal. See Commonwealth v.

In, 12 A.3d 370 (Pa. 2011).

      On July 15, 2011, Appellant pro se filed the instant PCRA petition. The

PCRA court appointed counsel, who filed an amended PCRA petition on

October 4, 2012, raising a number of ineffective assistance of counsel

claims. Appellant alleged that his trial counsel was ineffective for failing to

object to the Commonwealth’s presentation of Marable as a witness at trial

when the Commonwealth knew that Marable was not going to testify.

Specifically,   Appellant   alleged   that   Marable’s   presentation   “was   only

undertaken so as to unfairly prejudice [Appellant] by advancing guilt through

association.” Amended Petition, 10/4/12, at ¶ 11. Appellant alleged that his

trial counsel was ineffective because he stipulated to Marable’s guilty plea

arising out of the home invasion robbery at issue here.            Appellant also

alleged trial counsel’s ineffectiveness on the grounds that counsel did not

object to the detectives’ testimony that Marable gave a post-arrest

statement.      Finally, Appellant alleged ineffectiveness because trial counsel

did not object to the Commonwealth’s remarks during its closing argument.

      On January 24, 2013, the Commonwealth filed a motion to dismiss.

On April 10, 2013, without seeking and obtaining leave of court under

Pa.R.Crim.P. 905, Appellant filed a supplemental PCRA petition wherein he

notified the trial court that the previous PCRA petitions were filed under an

incorrect docket number.       On July 19, 2013, Appellant once again filed a

supplemental PCRA petition without leave of court, raising for the first time a

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claim for cumulative prejudice. On July 30, 2013, the Commonwealth filed a

supplemental motion to dismiss.

       On September 6, 2013, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition. On September 18, 2013,

Appellant filed a response to the PCRA court’s Rule 907 notice, raising an

ineffectiveness claim against his PCRA counsel. On October 11, 2013, the

PCRA court dismissed Appellant’s petition without a hearing.      Appellant

timely appealed to this Court.7

       On appeal,8 Appellant raises two issues for our review.9


____________________________________________


7
  Following a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998), Appellant elected to proceed pro se on April 14, 2014. On this
appeal, Attorney Craig M. Cooley, whom Appellant has privately retained, is
representing Appellant.
8
  “On appeal from the denial of PCRA relief, our standard of review requires
us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
9
   To the extent the Commonwealth suggests that Appellant has waived
issues raised in his supplemental PCRA petitions that were filed without
leave of court, we disagree. It is settled that when a PCRA court fails to
strike a supplemental petition and addresses issues therein raised in ruling
upon the petition, the PCRA court implicitly permits amendment under
Pa.R.Crim.P. 905(A). See Commonwealth v. Brown, 141 A.3d 491, 504-
05 (Pa. Super. 2016) (“[W]hen a petitioner files supplemental materials to a
PCRA petition, and the PCRA court considers such materials, an attempt by
the Commonwealth to preclude consideration of such materials fails.”).
Instantly, not only did the PCRA court fail to strike the supplemental
petitions, it expressly addressed the issues raised therein in its Pa.R.A.P.
1925(a) opinion. Accordingly, under the circumstances, the Commonwealth
may not avail itself of waiver.



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     [I.] Trial counsel made a series of objectively unreasonable
     decisions regarding the prosecutor’s attempt to have [Marable]
     testify against [Appellant]. Individually and cumulatively, these
     unreasonable decisions prejudiced [Appellant] because they
     allowed the prosecutor to present and the jury to consider
     irrelevant, inadmissible, and highly prejudicial evidence
     regarding [] Marable’s pre-trial statement and guilty plea without
     being subjected to cross-examination and without instructing the
     jury it could not consider [] Marable’s guilty plea as substantive
     evidence of [Appellant’s] guilt. Had trial counsel lodged timely
     objections there is a reasonable probability the trial court would
     have prohibited the prosecutor from presenting [] Marable as a
     Commonwealth witness as well as the other evidence relating to
     his guilty plea and pre-trial statement. It would have also struck
     the prosecutor’s impermissible closing arguments relating to []
     Marable’s refusal to testify, statement, and guilty plea.
     Individually and collectively, the introduction and consideration
     of this evidence undermines confidence in the jury’s guilty
     verdicts warranting a new trial and the PCRA court erred when it
     refused to grant a new trial because the record supported
     [Appellant’s] right to a new trial based on trial counsel’s
     ineffectiveness. U.S. Const. amends. V, VI, VIII, XIV; Pa. Const.
     art. 1, §§ 1, 6, 9.

     [II.] In his supplemental amended PCRA petition, appointed
     PCRA counsel raised a cumulative prejudice claim, but did not
     set forth specific, reasoned, and legally and factually supported
     arguments for this claim. Appointed PCRA counsel did not have
     a strategic reason for not adequately briefing this claim.
     Appointed PCRA counsel’s ineffectiveness prejudiced [Appellant]
     because the PCRA court ruled [Appellant] did not “properly aver”
     this claim and thus waived it. U.S. Const. amends. V, VI, VIII,
     XIV; Pa. Const. art. 1, §§ 1, 6, 9.

Appellant’s Brief at 1-2.   Stripped to its essence, Appellant’s first issue

subsumes six distinct ineffectiveness claims against his trial counsel. Trial

counsel was ineffective for: (A) failing to object to the Commonwealth’s

presentation of Marable as a witness at trial when the Commonwealth knew

that Marable would refuse to testify against Appellant; (B) requesting a

cautionary instruction that the jury should not infer Appellant’s guilt from

Marable’s refusal to testify; (C) stipulating to the fact that Marable entered

into a guilty plea in connection with the home invasion robbery sub judice;



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(D) failing to request a cautionary instruction informing the jury that it

should not infer Appellant’s guilt from Marable’s admitted guilt (guilt by

association); (E) failing to object to the detectives’ testimony referencing

Marable’s    post-arrest     statement;        and   (F)   failing   to   object   to   the

Commonwealth’s closing argument referencing Marable’s silence and refusal

to testify against Appellant on behalf of the Commonwealth. In his second

issue, Appellant argues that his appointed PCRA counsel was ineffective

insofar as counsel failed to develop a cumulative prejudice claim.

       Instantly, given the complexity of the claims raised and the dearth of a

record below, we are unable to engage in a meaningful appellate review.

Specifically, the PCRA court failed to conduct an evidentiary hearing on

Appellant’s ineffectiveness claims and render necessary factual findings. We

therefore cannot assess trial counsel’s tactical reasons for withholding

objections. As a result, we must vacate the PCRA court’s order dismissing

Appellant’s PCRA petition and remand the matter to the PCRA court to

conduct an evidentiary hearing to address fully the claims identified above. 10

       Order vacated. Case remanded. Jurisdiction relinquished.




____________________________________________


10
   We express no opinion as to the merits of Appellant’s ineffectiveness
claims.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2016




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