J-S30041-20

                                   2020 PA Super 186


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JASON WEBB                                 :
                                               :
                       Appellant               :   No. 148 WDA 2020

            Appeal from the PCRA Order Entered November 18, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0007252-2014


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            FILED AUGUST 10, 2020

        Appellant, Jason Webb, appeals from the order entered in the Court of

Common Pleas of Allegheny County dismissing his first petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546, raising

claims of ineffective assistance of trial counsel provided during his criminal

homicide trial. We affirm.

        The trial court aptly provides the procedural history and underlying facts

of the present matter, as follows:

        On May 17, 2014, Appellant was arrested and charged with
        Criminal Homicide and Unlawful Possession of a Firearm by a
        Person not to Possess at CC No. 201407252. At trial, the Firearms
        charge was severed from the homicide charge and was given the
        CC Number of 201502048.

        On January 30, 2015, an Omnibus Pretrial Motion was filed at CC
        No. 201407252, which Motion contained the request to sever the
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S30041-20


     firearms charge and motions to exclude autopsy photographs and
     video surveillance.

     Appellant proceeded to a jury trial presided over by the Honorable
     Joseph K. Williams, III, on the homicide charge[. Appellant
     defended this case on a self-defense theory. He testified [as] the
     only defense witness.]

     [The Commonwealth presented the following evidence:] On May
     17, 2014, around 1:30 in the morning, Tezjuan Taylor left the
     Beer Barrel bar in McKeesport. He was walking through the
     nearby PNC Bank parking lot when 3 shotgun blasts rang out.
     Some of the shotgun pellets penetrated Mr. Taylor's body. He
     struggled to a nearby Sunoco minimart and collapsed on the floor.
     He died right there. Police arrived soon thereafter and began their
     investigation.

     Audrey Smith was walking toward the Beer Barrel bar and saw
     Appellant. N.T, 6/8/15, at 112. She [knew] him for a long time.
     He was very upset. She [knew] this because when she greeted
     him ("What's up Jay?"), she got no reply and that was not like
     him. N.T. at 114. She sensed something was going to happen.
     N.T. at 119. Two people — one identified later as Tezjuan Taylor
     — left the bar and walked in the direction of the PNC parking lot.
     Ms. Smith then looked in that direction and saw "a motion." N.T.
     at 124. Appellant made that motion. It [was] a two handed
     motion like someone raising a gun. N.T. at 126. She duck[ed].
     [She] [h]ear[d] a pop. It [was] a gunshot.

     Ms. Smith's night was not over. She went into the bar, stayed
     awhile, and then walked home. That journey took her right past
     the mini-mart where the victim died. She made a general inquiry
     to a uniformed officer and kept walking. A bout of conscience
     made her come back. She was interviewed. She picked Appellant
     out of a photo array. N.T. at 139.

     Denise Fink drives an unlicensed cab called a jitney. Ms. Fink
     picked Appellant up around 1:00 a.m [on the night in question].
     They stopped at his mother's house a few blocks away. Appellant
     went in. A few minutes later he got back in the jitney. But, this
     time, he sat in the back seat. Then they drove to the Beer Barrel
     bar. It was not a long ride. The car parked a short distance away.
     Webb got out and walked toward the bar. Ms. Fink sat and waited
     for his return. Maybe 10 minutes later, Appellant returned. He

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J-S30041-20


     was not alone. Another male, in his early 20's, [got] in the front
     seat. Appellant [sat] in the back. The two of them talk[ed].
     Two people walk[ed] by the car. All of a sudden, Appellant
     jump[ed] out of the car. He [had] a gun. It was not a pistol — it
     was a long gun. Ms. Fink [was] shocked. She saw the gun pointed
     toward the Sunoco mini-mart. She hear[d] gunshots; maybe two
     or three. They came one after the other. The shots stop[ped].
     Appellant got back in the car. He had the gun and with a certain
     level of pride, he said, "that's what the motherfucker gets for
     killing Chauncy." N.T., 6/9/15, at 198.

     Ms. Fink got out of there in a hurry. They returned to Appellant’s
     mother's home. He got out with the gun. A few minutes passed,
     and Appellant reappeared with his girlfriend. They both got in the
     jitney. The girlfriend was scared. Appellant [told] Ms. Fink to
     return to the place she picked him up—a public housing project
     known as Crawford Village. Her car is [captured] on videotape at
     2:00:38 [a.m.] N.T. at 208. Appellant got out of the car.

     A few hours later, [according to Ms. Fink’s testimony], police are
     pounding on [her] door. They questioned her and towed her car.
     A photo array was conducted in which she picked out the photo of
     Appellant as the person who was in her car with a gun. N.T. at
     139.

     [T]here was forensic evidence admitted against Appellant.
     Appellant's DNA was found on the handle of the shotgun. N.T,
     6/10/15, at 124 In addition, the shell casings [recovered from
     the scene of the shooting] had markings which were consistent
     with being fired from the recovered gun. N.T. at 148.

     As mentioned, Appellant testified. [According to Appellant’s
     testimony,] [a]lmost immediately after leaving the bar, and
     before Appellant could get in the car, Mr. Taylor appeared.
     Appellant was near the rear passenger door and Taylor, on the
     driver's side, said "Where you going? Where you going, pussy?
     Don't run now." N.T. at 262, 302. Appellant [testified that he]
     grab[bed] the shotgun after Taylor reache[d] towards his short or
     waistband area. N.T. at 269, 304, 305.           Appellant start[ed]
     shooting[, firing three shots,] all in [the] direction of Taylor. All
     with his eyes closed. N.T. at 306. He then jump[ed] into the car
     and [told] his driver, "Go, go, go— that's the guy that killed
     Chauncey; he got Chauncey." N.T. at 270. He [left] the scene.
     Appellant then [broke] the gun down into two parts and put one

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J-S30041-20


      in [the] sewer and the other in some nearby woods. N.T. at 277,
      285, 287.

      [Appellant’s] version of events was not consistent with the events
      as described by Ms. Smith and Ms. Fink[, nor with] the physical
      evidence. As such, the jury was tasked with choosing [whom] to
      believe. They chose the government’s version of events. Their
      review of that evidence included passing judgment on the
      elements of [Appellant’s] self-defense claim. [The jury rejected
      Appellant’s testimony that his life was in danger]. Ms. Smith and
      Ms. Fink described no interaction with Mr. Taylor at the car. Their
      testimony was supported by the physical evidence left at the
      scene. The government presented a case which, upon connecting
      the dots, one could [conclude] Appellant was . . . sitting in the car
      just waiting for Mr. Taylor to leave the bar.

      A jury convicted Appellant of third-degree murder at CC No.
      201407252 on June 9, 2015. On that same date, Judge Williams
      convicted Appellant of the severed firearms charge, now listed at
      CC No. 201502048. On September 14, 2015, Appellant entered
      a guilty plea to the charges at CC No. 201404482 [involving a
      separate, prior incident resulting in charges of Receiving Stolen
      Property, Possession of Firearm with Manufacturer Number
      Altered, Firearms Not to be Carried Without License, three counts
      of Possession of a Controlled Substance, and one count of
      Possession of Drug Paraphernalia].

      Also on September 14, 2015, Judge Williams sentenced Appellant
      to fifteen (15) to thirty (30) years of incarceration for third-degree
      Murder, a concurrent two (2) years, six (6) months to five (5)
      years of incarceration on the Possession of a Firearm Prohibited
      charge, and a consecutive five (5) to ten (10) year sentence of
      imprisonment for Possession of a Firearm with Manufacturer
      Number Altered. Appellant was also sentenced to 10 years of
      Probation to follow his incarceration.

Trial Court Opinion, 4/15/16, at 1-4.

      Appellant filed a counseled Notices of Appeal in the Superior Court of

Pennsylvania from the judgments of sentence entered at all three docket

numbers. On August 15, 2017, however, Appellant, through counsel, filed an



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J-S30041-20



Application to Withdraw each appeal, and this Court entered orders

discontinuing each on August 18, 2017.

      On September 19, 2017, Appellant filed a pro se Petition for Post-

Conviction Collateral Relief, his first. By Order dated September 19, 2017,

the PCRA court appointed counsel to represent Appellant in his PCRA

proceedings. Appointed counsel filed an Amended Post Conviction Relief Act

Petition on behalf of Appellant on September 20, 2018 and subsequently filed

a Modified Amended PCRA Petition on November 7, 2018. On March 15, 2019,

the Commonwealth filed its Answer to Appellant’s petitions.

      On March 29, 2019, the PCRA court entered an order providing notice

of its intention to dismiss Appellant’s PCRA petition without a hearing,

pursuant to Pa.R.Crim.P. 907. On November 8, 2019, the court entered an

order dismissing Appellant’s petition. This timely appeal followed.

      In this appeal, Appellant raises five issues for our consideration:

      1. Did the lower court abuse its discretion in finding no merit to
         the claims raised in the PCRA petition, and denying the petition
         without a hearing, where trial counsel ineffective for eliciting
         testimony regarding Mr. Webb's illegal drug activity, and for
         failing to submit a motion in limine to preclude any reference
         to such activity, where the evidence was irrelevant and/or not
         probative of the defense theory of self-defense or imperfect
         self-defense, and was highly prejudicial in that it portrayed Mr.
         Webb as being a criminal and having criminal propensities?

      2. Did the lower court abuse its discretion in finding no merit to
         the claims raised in the PCRA petition, and denying the petition
         without a hearing, where Mr. Webb averred that trial counsel
         was ineffective for failing to request a cautionary instruction
         regarding the prior crimes evidence at the earliest possible
         moment rather than wait for the short two -paragraph

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J-S30041-20


         cautionary instruction that was buried in the long 127
         paragraph series of instructions that were read to the jurors at
         trial?

      3. Did the lower court abuse its discretion in finding no merit to
         the claims raised in the PCRA petition, and denying the petition
         without a hearing, where Mr. Webb averred that trial counsel
         was ineffective for not objecting to the admission of evidence
         that witness Audrey Smith was placed in the witness protection
         program, and that she selected Mr. Webb's photograph from a
         photo array at 5:30 a.m., from which the jury was left to
         deduce that it was a mugshot, insofar as that evidence was
         irrelevant and far more prejudicial than probative of any issue
         in the case?

      4. Did the lower court abuse its discretion in finding no merit to
         the claims raised in the PCRA petition, and denying the petition
         without a hearing, where Mr. Webb averred that trial counsel
         was ineffective for failing to procure a cautionary instruction
         following Audrey Smith's testimony about the Witness
         Protection program, which instruction would have explained
         that the testimony was irrelevant to the crimes charged and
         cannot be used to prove that Mr. Webb was a dangerous person
         or otherwise has a propensity to commit a dangerous crime?

      5. Did the lower court abuse its discretion in finding no merit to
         the claims raised in the PCRA petition, and denying the petition
         without a hearing, where Mr. Webb averred that trial counsel
         was ineffective for failing to properly preserve a challenge to
         the improper admission into evidence of a color videotape that
         had minimal probative value, and was so graphic that it
         injected undue emotion into the case, to Mr. Webb's prejudice?

Appellant’s brief at 5.

      Under the applicable standard of review, we determine whether the

ruling of the PCRA court is supported by the record and is free of legal error.

The PCRA court’s factual findings will not be disturbed unless there is no

support for the findings in the certified record. Commonwealth v. Barndt,

74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted). We apply a de


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novo    standard     of   review   to   the   PCRA   court’s   legal   conclusions.

Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014).

       Our scope and standard of review is well settled:

       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 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)

(citations omitted).

       To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel’s ineffectiveness so undermined the truth determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.”   Id.   This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) petitioner was prejudiced by

counsel's act or omission. Id. at 533. A finding of “prejudice” requires the

petitioner to show “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”


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J-S30041-20



Id. A reasonable probability is one “sufficient to undermine confidence in the

outcome of the proceeding.” Id. (quoting Commonwealth v. Ali, 10 A.3d

282, 291 (Pa. 2010)).       A failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim.       Commonwealth v.

Martin, 5 A.3d 177, 183 (Pa. 2010).

      In Appellant’s first issue, he argues that defense counsel had no

reasonable basis for eliciting highly prejudicial testimony from both Denise

Fink and Appellant, himself, that Appellant was a low-level drug dealer at the

time of the shooting.     Specifically, counsel asked Denise Fink on cross-

examination if she knew some “small-time drug dealers in the McKeesport

area,” and Fink named Appellant as one and stated that she had asked him

for drugs dozens of times. N.T. 6/9/15 at 224-25. On direct examination of

Appellant, defense counsel asked questions prompting Appellant to explain he

had often given drugs to Ms. Fink as payment for jitney rides, including on the

night of the shooting.    N.T. at 242-43.     On the Commonwealth’s cross-

examination of Appellant, the jury heard Appellant indicate that he sold crack

cocaine and heroin. N.T. at 315.

      Appellant argues that testimony of Appellant’s drug sales was irrelevant

to his justification defense or imperfect self-defense claim. In the alternative,

he contends that even if relevant, evidence of his drug dealing was more

prejudicial than probative, as it stripped him of his presumption of innocence

and portrayed him as a bad person with criminal tendencies. We disagree.




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J-S30041-20



      On direct examination, Ms. Fink testified that at the time relevant to the

present matter she worked as a nighttime jitney driver in the McKeesport area,

accepting either money or drugs (usually heroin, sometimes crack cocaine) as

payment. N.T., 6/9/15, at 172. On the night in question, Appellant called her

for a ride to the Beer Barrel bar in McKeesport, purportedly to pick up his

mother and take her home. N.T., 6/9/14, at 177-78. Fink picked up Appellant

at about 1:00 a.m. and he got in the front seat of her Toyota Camry. N.T. at

179. He asked her to go first to his mother’s home on Washington Street,

where he entered and stayed for three to five minutes before returning to the

car, but this time sitting in the back seat. N.T. at 181. Fink thought it unusual

that Appellant didn’t return to the front seat and asked him if he made a

mistake, but he didn’t answer. N.T. at 182-83.

      Fink drove to the Barrel Bar and arrived to find it busy, so she parked

several spaces up the street from the bar and Appellant exited the vehicle

while Fink waited. N.T. at 185-86. Appellant entered the bar and returned to

Fink’s car moments later, not with his mother but with a friend he met up with

in the bar. According to Fink, Appellant sat in the back seat holding a long-

barreled gun while his friend sat in the front seat and advised her that “when

[Appellant] says ‘go,’ go.” N.T., 6/9/14, at 188.

      Fink testified that they waited in her car just a short time until two men

walked by the car, at which point Appellant sprung from the car quickly and

fired multiple shots at the two men with a long gun, not a pistol. N.T. at 189,

197. Appellant jumped back in the car, directed a shocked Fink to drive away,

                                      -9-
J-S30041-20



and declared, “That’s what the motherfucker gets for killing Chauncey,” a

reference to a close acquaintance of his who was killed in a McKeesport

shooting two years earlier. N.T. at 198. According to Fink, Appellant’s attitude

when making this statement was one of pride and excitement. N.T. at 199.

She claimed he was hooting and saying, “wooh, yeah” while continuing to tell

Fink where to drive. N.T. at 199-200.

      Appellant was thus confronted with highly detailed and incriminating

eyewitness testimony from Denise Fink, who essentially testified Appellant had

ambushed an unsuspecting Taylor and killed him not in self-defense but in

retaliation for the previous murder of a friend. He also faced both additional

eyewitness testimony from Audrey Smith, who heard gunshots while

simultaneously witnessing from a distance Appellant make what appeared to

be a shooting motion with his hands, and other video and forensic evidence

definitively putting him in possession of the murder weapon on the night in

question. See infra.

      Only Ms. Fink’s testimony, however, provided direct evidence supporting

the prosecution’s first-degree murder theory that Appellant’s shooting of Mr.

Taylor was premeditated and without provocation. The defense, therefore,

elected to employ an imperfect self-defense defense in which a primary task

was to impeach Fink by recasting her as a habitual drug user who could neither

perceive nor remember clearly the events surrounding the shooting, as

Appellant had supplied her with narcotics during the jitney ride.




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J-S30041-20



      Thus, we cannot find the PCRA court abused its discretion when it

reviewed this record and determined it was reasonable for defense counsel to

reveal to the jury Appellant’s status as a low-level drug dealer, if only to

establish that Appellant had first-hand knowledge of both Fink’s long-term

drug addiction and her possession of drugs that he delivered to her in the

jitney on the night of the shooting. Such evidence, if believed by the jury,

could create reasonable doubt regarding her ability to assess Appellant’s

conduct and remember accurately what had happened. Her testimony in this

regard was a central feature to the Commonwealth’s first-degree murder

proffer, which the jury chose to reject in favor of a verdict of murder in the

third degree.

      Even if we were to assume arguendo that counsel’s strategy was

unreasonable, we would find Appellant has also failed to prove the prejudice

prong to his ineffectiveness claim, as he has not shown there was a reasonable

probability that, but for counsel’s alleged errors, he would have experienced

a better result at trial.   As noted above, Ms. Fink was not the sole source of

damaging, detailed evidence implicating Appellant in the shooting of Mr.

Taylor.

      Audrey Smith was on familiar terms with Appellant, and she testified he

appeared unusually agitated and failed to return her greeting when she saw

him walking away from the Beer Barrel bar with another male. N.T. at 105-

114, 148-51.      Minutes later, she saw two men—one of whom was later

confirmed to be Taylor—open the bar door and ask, “Where did they go,” while

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looking up the sidewalk in the direction of the Sunoco station. N.T. at 119-

22, 155. She watched as they began walking toward the station, where, the

trial record had otherwise established, they had parked their car. N.T. at 123,

160.

       Smith remained outside the bar when she again saw Appellant, this time

standing alone alongside Denise Fink’s car parked some distance away from

the bar.   According to her testimony, Appellant then raised his arms as if

preparing to fire a gun, and she instantly ducked as she heard shots fired.

N.T. at 124-26, 28. When she looked up, she saw Fink’s car pull out quickly

and speed away. N.T. at 124, 129.

       Smith eventually contacted Allegheny County Police and told them what

she had witnessed. N.T. at 136-37. She received a transport to headquarters

where she provided a statement implicating Appellant as the shooter and

identified him from a photo array. N.T. at 138-39, 141.

       Two men working security for the Beer Barrel bar also told investigators

that they were forced to ask Appellant to leave the bar, and while they

escorted him out one of them heard Appellant say he was “going to get that

[N-word].” N.T. at 319. Video footage from inside the bar confirms Appellant

and the other male were in the bar for only 90 seconds. N.T. at 289, 292.

Taylor and James Wilson are also depicted in this footage, and they are seen

leaving the bar about one minute after Appellant leaves. N.T. at 293.

       Other evidence included testimony that McKeesport Police responded to

a call placed less than 24 hours after the shooting reporting that a homeowner

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J-S30041-20



had recovered a black shotgun receiver from the bushes in his yard. This

property was in the same neighborhood as Appellant’s mother’s home. N.T.

at 353-369. Furthermore, security footage from a building in McKeesport had

captured someone dumping an object in a storm drain shortly after 3:00 a.m.

on the date of the shooting. The municipal authority was dispatched to the

scene and recovered the barrel end of a shotgun.       The Allegheny County

Medical Examiner’s firearms expert testified that the barrel belonged to the

shotgun receiver recovered from the bushes near Appellant’s mother’s home.

      Forensic evidence collected after the crime included the recovery of

Appellant’s DNA from the grip and the slide of the shotgun. N.T. at 124, 135.

Additionally, the shotgun pellets recovered from Taylor’s body during autopsy

were consistent with the shotgun shells recovered from the shooting scene.

N.T. at 189-193.      Finally, gunshot residue was recovered from the front

passenger seat of Fink’s vehicle, where Appellant sat after the shooting. N.T.

at 33, 38, 77, 91.

      Therefore, when viewed in the aggregate, the evidence of Appellant’s

guilt was overwhelming, such that we cannot say that counsel’s decision to

introduce evidence of Appellant’s low-level drug dealing “undermined

confidence in the outcome of the proceeding.” See Commonwealth v.

Spotz, 84 A.3d 294, 312 (Pa. 2014) (A reasonable probability of a different

result is one “sufficient to undermine confidence in the outcome of the

proceeding.”) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010)).

Appellant’s first issue fails.

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      In Appellant’s second issue, he claims trial counsel was ineffective for

failing to request a cautionary instruction regarding the prior crimes evidence

at the earliest possible moment rather than waiting for the court to include

such instruction in the jury charge. The delay in the charge, Appellant asserts,

caused him undue prejudice.

      “Where evidence of prior bad acts is admitted, the defendant is entitled

to a jury instruction that the evidence is admissible only for a limited purpose.”

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

“[i]t is presumed the jury follows the court's instructions.” Commonwealth

v. Speight, 854 A.2d 450, 458 (Pa. 2004).

      Initially, because we have already determined that no undue prejudice

befell Appellant by counsel’s decision to introduce Appellant’s drug dealing

history for the purpose of impeaching Fink’s testimonial capacity, we reject

the notion that the lack of an immediate cautionary instruction explaining the

limited purpose was, itself, independently prejudicial. Furthermore, the law

is clear that such an instruction may be given as part of the general charge.

See Commonwealth v. Spotz, 759 A.2d 1280, 1286 (Pa. 2000). In Spotz,

the Pennsylvania Supreme Court explained:

      This Court has held that a limiting instruction may be given either
      as the evidence is admitted or as part of the general charge.
      Commonwealth v. Covil, 474 Pa. 375, 383, 378 A.2d 841, 845
      (1977). Rule 1119(d) of the Rules of Criminal Procedure, adopted
      after Covil, likewise states that a trial judge may give instruction
      to the jury before the taking of evidence or at any time during the
      trial as the judge deems necessary and appropriate for the jury's
      guidance in hearing the case.         Pa.R.Crim.P. 1119(d).     The


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      Comment to the Rule reaffirms that the determination of when to
      charge the jury is discretionary with the trial court: It is intended
      that the trial judge determine on a case by case basis whether
      instructions before the taking of evidence or at any time during
      trial are appropriate or necessary to assist the jury in hearing the
      case. Furthermore, although the Court in Covil expressed a
      preference that trial courts give a limiting instruction at the time
      the evidence is introduced, where possible, Covil itself approved
      a determination in that case to postpone issuing the charge. 474
      Pa. at 384, 378 A.2d at 846.

Spotz, 759 A.2d at 1286–87 (Pa. 2000).

      Here, in pertinent part, the court charged the jury during the final

instructions as follows:

      THE COURT:          You’ve heard evidence tending to prove the
      defendant was guilty of an offense for which he is not on trial. I
      am speaking of the testimony to the effect that the defendant
      distributed illegal drugs.

      This evidence is before you for a limited purpose; that is, for the
      purpose of tending to show the defendant’s relationship with
      Denise Fink. This evidence must not be considered by you in any
      other way 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.

N.T. at 387-388.

      Under both controlling authority and the record before us, we perceive

no arguable merit to Appellant’s ineffectiveness claim assailing counsel’s

decision to allow the court to wait until the general jury charge before

explaining the specific, appropriate purpose of the other crimes evidence.

Juries are presumed to follow instructions, Commonwealth v. Speight, 854

A.2d 450, 458 (Pa. 2004), and the court’s instruction specifically informed this

jury just before it began its deliberations that evidence of Appellant’s history

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as a drug dealer was relevant for the limited purpose of understanding his

relationship with Fink.

      The jury had observed defense counsel develop this very theme during

his extensive cross-examination of Fink, direct examination of Appellant, and

in zealous closing argument, in which he characterized Fink as a skillful liar

who had admittedly deceived her husband and family for years by using her

nighttime jitney business as a front for accessing drugs. The jury, therefore,

was well aware of the defense position that this illicit relationship between

Appellant and Fink enabled Appellant to offer what could reasonably be

perceived by the jury as an informed assessment that Fink was a compromised

fact witness.   Accordingly, we discern no merit to Appellant’s claim that

counsel was ineffective for allowing the court to give its limiting instruction at

the end of trial rather than at the time defense counsel initially introduced

evidence of Appellant’s other bad acts.

      Appellant’s third and fourth issues coalesce to contend defense counsel

ineffectively failed to object to or request a limiting instruction about the

Commonwealth’s line of questioning regarding Audrey Smith’s placement in

the Witness Protection Program. Counsel compounded the prejudicial effect

stemming    from   such   references    during   Smith’s   testimony,   Appellant

continues, by not objecting when the prosecutor elicited evidence that she

picked Appellant’s photo from a photo array shown to her at 5:30 a.m., which

permitted the jury to infer the photo was a mugshot of Appellant.




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     The relevant notes of testimony show defense counsel did, in fact, lodge

an objection at the outset of the Commonwealth’s line of questioning aimed

at eliciting Smith’s narrative of how she reached out to police and expressed

she was concerned about her safety:

     PROSECUTOR: Now, at some point when you’re dealing with
     the police, that day, did you express to them concerns about your
     well-being, ma’am?

     SMITH:      Of course.

     DEFENSE COUNSEL: I’m going to object as irrelevant, Your
     Honor.

     PROSECUTOR:       Either at that time or at some –

     THE COURT:         Wait a minute. Approach.        (Whereupon the
     following discussion was held at sidebar).

     THE COURT:        He objected about whether it was relevant or
     not, but I would hear your thoughts.

     DEFENSE COUNSEL: Just if she is going to testify that she
     worried because she knows him to be a violent guy or she is
     worried about any type of retribution, I would say this is not really
     relevant to the proceedings.

     PROSECUTOR: I’m not going to ask her why. It was just a
     segue. The fact that she’s placed into the Witness Protection
     Program, I wasn’t going to say, “Why did you ask to [do] that”?

     DEFENSE COUNSEL: Okay.

     THE COURT:        Very well.

     (open court)

     PROSECUTOR: Did you make arrangements either initially on
     contacting the police or at some later time to enter into their
     witness production [sic] program?


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     SMITH:       Not at that particular time, no.

     Q:    Okay. Was it at some later point that you made those
     arrangements with the detectives?

     A:    Just towards the preliminary.

     Q:    I’m sorry? Towards the time of the preliminary hearing?

     A:    Towards the preliminary hearing.      And to be honest with
     you, I didn’t want to go through with it.

     Q:    Go through with testifying at the preliminary hearing?

     A:    Right. I didn’t want to today either. Honestly.

     Q:     Well, you did, in fact, testify at the preliminary hearing in
     this case?

     A:    Yes, I did.

     Q:    All right. At some time after that, was that when those
     arrangements were made to place you into the Witness Protection
     Program?

     A:    Yes.

     Q:    All right. I’m not going to ask you where you went to but
     did you leave the Pittsburgh area to go to some far away location?

     A:     I did because I needed to get out of here immediately. So
     I did leave for a while.

     Q:    And you were provided monies to get housing, to get food,
     to get other essentials of life by the police department?

     A:    Yes, but not like a great amount. But yes.

     Q:    Do you know about how much money it was all told that you
     received from the police while you were in Witness Protection?

     A:    Maybe like $700, $800. I don’t know. I’m not sure.


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J-S30041-20



N.T., 6/8/15/, at 141-44.

      Appellant concedes that defense counsel initially objected to testimony

Smith might offer indicating she feared Appellant’s violent retribution if she

were to testify against him, and the prosecutor agreed to refrain from asking

why she entered the Witness Protection Program. Appellant posits, however,

that counsel was nevertheless obligated to renew his objection—or at least

request a limiting instruction—when the prosecutor continued to ask questions

about Smith’s request to enter the program, because the necessary

implication of such testimony was that she believed she was placing herself in

danger by testifying against Appellant.

      Even if we agreed with Appellant that the prosecution’s direct

examination of Smith extended beyond a mere segue and conveyed, instead,

that Smith was afraid harm would befall her if she testified against Appellant,

we find the lack of a renewed defense objection—or to seek an instruction that

Smith’s inclusion in the program was not evidence that Appellant acted

violently or in a threatening manner toward her—caused Appellant no

prejudice.

      The relatively brief testimony addressing Smith’s fear of testifying and

her resultant placement in the Witness Protection Program represented a

minor aspect of Smith’s lengthy testimony, the main focus of which was her

eyewitness account of Appellant’s and Taylor’s respective actions outside the

Beer Barrel bar leading up to the moment when she saw Appellant raise his

arms in a manner consistent with firing a gun at the very moment she heard

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several gunshots.       Moreover, Smith never indicated that it was Appellant

whom she feared, and she never suggested he did anything to intimidate her

in her role as a witness.

       We, therefore, find that what is ultimately detrimental to Appellant’s

claim is the overwhelming evidence of his guilt introduced at trial, as the

Commonwealth’s presentation against Appellant was substantial. Both Smith

and Denise Fink provided independent, firsthand accounts of witnessing

Appellant act as the sole shooter, with Fink adding that Appellant shot Taylor

without provocation and celebrated the event immediately afterward. Video

of the bar’s interior minutes prior to the shooting showed an agitated Appellant

wearing a hoodie and being escorted outside by bar security less than two

minutes after he had first entered.            Security video and forensic evidence

placed the murder weapon in Appellant’s hands just minutes after the

shooting, and Appellant exhibited consciousness of guilt by changing his

appearance the next day with a new hairstyle. Given this body of evidence,

we cannot conclude Appellant demonstrated a reasonable probability that he

would have obtained a different result but for counsel’s failure to renew his

objection to, or otherwise seek exclusion of, Smith’s testimony regarding her

entry into the Witness Protection Program.1

____________________________________________


1 Appellant’s related claim asserting counsel ineffectively failed to object to
testimony that Smith picked Appellant from a photo array shown to her at
5:30 a.m., because the jury would have surmised the photo was a mug shot
from a prior arrest, also fails to establish prejudice for the same reasons.



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       In Appellant’s final issue, he argues trial counsel was ineffective for

failing to raise an “undue prejudice” objection to the admission of a color

videotape depicting the decedent Taylor entering a Sunoco Mini-Mart with his

last steps before collapsing to the floor, dead. According to Appellant, the

video had minimal probative value, given other evidence of Taylor’s final

moments, and was “so graphic that it injected undue emotion into the case,

to [Appellant’s] prejudice.”         Appellant’s brief, at 33.   Appellant posits,

therefore, that such video evidence was inadmissible under Pa.R.Evid. 403

and violated his due process rights.

       The record belies this claim, as trial counsel included within his Omnibus

Pre-Trial Motion a motion in limine seeking exclusion of the store video

surveillance footage, pursuant to Pa.R.E. 403 because the “gruesome and

inflammatory” recording of Mr. Taylor’s last moments was “likely to inflame

the minds and passions of the jurors, and its evidentiary value does not

outweigh the potential harm it poses to [Appellant’s] right to a fair trial.”

Omnibus Pre-Trial Motion, 1/30/15, ¶¶ 6-10. The trial court, however, viewed

the video at issue and determined it was “relevant and not so prejudicial [so

as] to exclude it. The tape is rather short, maybe 2-3 minutes long[,] and

____________________________________________


We find additionally, however, that the claim also lacks arguable merit.
Specifically, Appellant points to neither evidence at trial nor any other aspect
of the record that established the photo was, in fact, a mug shot. Instead, he
offers only speculation as to what the jury’s impression of such testimony
must have been—without addressing and eliminating the possibility that the
photo was supplied by some other source. As such, Appellant has failed to
develop this claim in any meaningful way.

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while [] in color, the colors are not reproduced all that well.” Trial Court Order,

2/12/15, at Trial Dkt. No. 10.

          Appellant points to a subsequent hearing at which trial counsel offered

no objection except to the authenticity of the video prior to its exposition to

the jury, but counsel had already raised an unsuccessful motion to exclude

the video based on undue prejudice pursuant to Rule 403, and he was not

required      to   reissue   the   objection   in   vain   later   during   trial.   See

Commonwealth v. Stokes, 78 A.3d 644, 652-53 (Pa.Super. 2013) (law does

not require counsel to raise futile objections on decided matters).                  We

therefore reject Appellant’s ineffectiveness claim as lacking arguable merit.

          For the foregoing reasons, we affirm the order denying Appellant PCRA

relief.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2020




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