J-S09036-22
2022 PA Super 55
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREEK WILSON :
:
Appellant : No. 1018 EDA 2021
Appeal from the Order Entered May 13, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014996-2013
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MARCH 31, 2022
Appellant Tyreek Wilson appeals from the order of the Court of Common
Pleas of Philadelphia County denying Appellant’s first petition pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541, et seq. Appellant
raises three claims alleging the ineffectiveness of his counsel. We affirm.
In the underlying case, a jury convicted Appellant of robbery, attempted
burglary, simple assault, and recklessly endangering another person. On
direct appeal, this Court summarized the factual background and procedural
history of this case as follows:
On November 15, 2013, at 7:00 p.m., Mary Ellen Kelly went
to Holly Turner's apartment at 29th Street and Girard Avenue in
Philadelphia, Pennsylvania. See Notes of Testimony (N.T.),
6/9/15, at 55–58, 67, 101–103. Ms. Kelly rang the buzzer for Ms.
Turner's apartment. Id. at 103. Ms. Turner, who was using
crutches as a result of a broken foot, unlocked the inner vestibule
door and the outside door of the apartment building. Id. at 57–
____________________________________________
* Former Justice specially assigned to the Superior Court.
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58, 103–04. Appellant was standing a few feet behind Ms. Kelly.
Id. at 62–63, 103–08. As she entered the vestibule, Appellant
pushed his way in behind her. Id. at 63, 103–04, 110–11. The
two women attempted to push Appellant out while he tried to force
his way into the apartment proper. Id. at 63, 68–71, 104, 110–
11. Ms. Turner kicked the apartment door shut while screaming
for help. Id. at 69–72, 104, 113–14. During the struggle, both
women were able to see Appellant's face; Ms. Kelly noted he was
wearing a black coat with a brand tag reading “Zero.” Id. at 125.
Appellant punched Ms. Kelly in the face and body, pulled her
hair and her scarf, and shoved her against the wall. Id. at 64, 73,
115–16. Ms. Kelly screamed and fell to the ground while Appellant
kicked her. Id. at 64, 72–73, 104, 115–17. Ms. Turner kicked
Appellant in the groin. Id. at 64, 118. Appellant grabbed Ms. Kelly
by the hair and dragged her three to four feet from the vestibule.
Id. at 64, 121–23. The cross-body bag she was wearing snapped,
and Appellant fled with the purse northbound on 30th Street. Id.
at 77, 104, 123; N.T., 6/10/15, at 19–20. During the struggle,
Appellant dropped his phone. Id. at 77.
Ms. Turner's neighbors arrived on the scene and told her
they had called 911; Ms. Turner spoke to the dispatcher and gave
a description of Appellant. See N.T., 6/9/15, at 76–77, 125–26.
An unmarked police car arrived within a few minutes: Ms. Kelly
got in the car with officers, and Ms. Turner remained at the
apartment and picked up Appellant's phone. Id. at 77; N.T.,
6/10/15, at 19–20, 23–24, 49–51. Ms. Kelly had an iPhone with a
tracking application installed on it, so the police were able to follow
Appellant's location. See N.T., 6/9/15, at 125–26; N.T., 6/10/15,
at 24. Based on Appellant's westbound trajectory on Girard
Avenue, officers concluded Appellant was on a trolley. See N.T.,
6/9/15, at 128–29; N.T., 6/10/15, at 24–25.
Officers stopped two trolleys at 34th Street and Girard
Avenue; on the second trolley, Ms. Kelly identified Appellant as
the assailant. See N.T., 6/9/15, at 129–131; N.T., 6/10/15, at
25–26. Officers recovered Ms. Kelly's iPhone from Appellant, who
was then arrested. Id. As a result of the assault, Ms. Kelly suffered
a burn across the neck due to Appellant's pulling the bag; a black
eye; and bruises on her arms and legs. See N.T., 6/9/15, at 134;
N.T., 6/10/15, at 61–62. Police officers obtained a search warrant
for Appellant's phone, which was logged into his Facebook
account. See N.T., 6/10/15, at 65–70.
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Prior to trial, Appellant cut the strap of his electronic
monitoring bracelet and fled; a bench warrant was issued for his
arrest. See N.T., 6/8/15, at 20–22, 25–26; N.T., 6/9/15, at 13–
20, 26; N.T., 6/10/15, at 104–08, 114–133, 135–39. Appellant
was subsequently tried in absentia. See N.T., 6/8/15, at 4, 21–
22, 25–26; N.T., 6/9/15, at 13–20, 26. After the jury found
Appellant guilty on all charges, Appellant was sentenced in
absentia to twenty-two to forty-four years of incarceration. See
N.T., 6/11/15, at 116–18; N.T., 9/17/15, at 4–6.
On September 22, 2015, while Appellant was still a fugitive,
counsel filed a post-sentence motion on his behalf, which the court
denied. On October 8, 2015, counsel filed a notice of appeal on
Appellant's behalf, again, while he was still a fugitive. Appellant
was taken into custody on new charges in October 2015. Following
a bench warrant hearing on October 16, 2015, three days prior to
the thirty-day appeal period running, the court ordered Appellant
to file a Pa.R.A.P. 1925(b) statement. Instead, Appellant filed a
second post-sentence motion. Appellant was allowed the
opportunity for allocution, but the court denied his motion for
reconsideration.
Commonwealth v. Wilson, 3079 EDA 2015, 2017 WL 3933410, at *1–2
(Pa.Super. Sept. 8, 2017) (unpublished memorandum) (footnote omitted).
On September 8, 2017, this Court affirmed the judgment of sentence.
In doing so, this Court declined to find that Appellant waived his appellate
rights during the time period in which he had been a fugitive as Appellant had
been returned to court custody three days before the time to file an appeal
had expired.
However, this Court found Appellant had waived his right to challenge
the discretionary aspects of his sentence as he had been a fugitive during the
time period in which he was required to file a post-sentence motion. Id.
(quoting Commonwealth v. Doty,
997 A.2d 1184, 1187 (Pa.Super. 2010);
Commonwealth v. Deemer,
705 A.2d 827, 829 (Pa. 1997) (stating that “a
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fugitive who returns to court should be allowed to take the system of criminal
justice as he finds it upon his return; if time for filing has elapsed, he may not
file; if it has not, he may”).
This Court determined that there was no merit to the sole issue
Appellant had presented for appeal in which he challenged the sufficiency of
the evidence supporting his simple assault conviction. On March 28, 2019,
the Supreme Court denied Appellant’s petition for allowance of appeal.
On March 20, 2020, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, who subsequently filed an amended PCRA petition,
raising claims of ineffectiveness of both trial and appellate counsel. On March
9, 2021, the PCRA court sent Appellant notice of its intent to dismiss the
petition without a hearing pursuant to Pa.R.Crim.P. 907. On May 13, 2021,
the PCRA court dismissed Appellant’s petition. This timely appeal followed.
Appellant raises the following issues for our review on appeal:
1. Whether the court erred in denying Appellant’s PCRA petition
without an evidentiary hearing on the issues raised in the
amended PCRA petition regarding trial counsel’s
ineffectiveness?
2. Whether the court was in error in not granting relief on the
issue that counsel was ineffective for the following reasons:
a. Appellate counsel was ineffective for failing to appeal the
denial of the objection to prejudicial evidence.
b. Appellate counsel was ineffective for failing to appeal the
denial of the mistrial motion.
c. Trial counsel was ineffective for failing to object to an
incorrect jury instruction.
Appellant’s Brief, at 8 (reordered for ease of review).
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Our standard of review is as follows:
Our review of a PCRA court's decision is limited to examining
whether the PCRA court's findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence of
record in a light most favorable to the prevailing party. With
respect to the PCRA court's decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such
a decision is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion.
Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa.Super. 2019) (quoting
Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015) (internal citations
and quotation marks omitted)). To successfully challenge the lower court’s
decision to deny the petitioner a hearing on his PCRA petition, “an appellant
must show that he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise abused its
discretion in denying a hearing.” Commonwealth v. Paddy,
15 A.3d 431,
442 (Pa. 2011).
Appellant raises several claims of the ineffectiveness of trial and
appellate counsel. In reviewing such claims, we are guided by the following
principles:
[a]s originally established by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, [
104
S.Ct. 2052,
80 L.Ed.2d 674] (1984), and adopted by
Pennsylvania appellate courts, counsel is presumed to have
provided effective representation unless a PCRA petitioner
pleads and proves all of the following: (1) the underlying
legal claim is of arguable merit; (2) counsel's action or
inaction lacked any objectively reasonable basis designed to
effectuate his client's interest; and (3) prejudice, to the
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effect that there was a reasonable probability of a different
outcome at trial if not for counsel's error.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014)
(citations omitted). “A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 600 Pa. 1,
963
A.2d 409, 419 (2009).
Commonwealth v. Selenski,
228 A.3d 8, 15 (Pa.Super. 2020).
First, Appellant argues that appellate counsel was ineffective in failing
to appeal the trial court’s decision to allow the Commonwealth to introduce
into evidence prison visitation logs that showed the identity of the individuals
that visited Appellant in prison. The Commonwealth argued that this evidence
had significant probative value to show that the individuals who visited
Appellant in prison were contacts that had exchanged messages with the cell
phone inadvertently dropped by the perpetrator of the crimes at issue.
As such, the Commonwealth argued that the prison visitation log was
important to assist the prosecution in proving that the discarded phone
belonged to Appellant as this evidence further corroborated the eyewitnesses’
identifications of Appellant as the perpetrator.
Appellant does not dispute that the prison visitation logs were relevant
evidence, but claims that the prejudicial impact of the prison visitation logs
outweighed the probative value of the evidence. Specifically, Appellant argues
that the Commonwealth could have proved the same connection by using
Appellant’s Facebook page rather than prejudicial prison records, which
Appellant claims showed that he was incarcerated long enough to have
numerous visitors. Appellant’s Brief, at 19.
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In reviewing Appellant’s challenge to the lower court’s discretion to
admit certain evidence, the following standard is applicable:
[t]he admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. Our standard of review of a
challenge to an evidentiary ruling is therefore limited. Abuse of
discretion is not merely an error of judgment, but rather where
the judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.
Commonwealth v. Williams, 241 A.3d 1094, 1101 (Pa.Super. 2020)
(quoting Commonwealth v. Lekka,
210 A.3d 343, 353–54 (Pa.Super. 2019)
(internal citations and quotations omitted)).
It is well-established that:
“[r]elevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015)
(en banc) (citation omitted).
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more
or less probable, or tends to support a reasonable inference
or proposition regarding a material fact. Relevant evidence
may nevertheless be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.
Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super.
2019) (citation and quotation marks omitted), appeal denied, 219
A.3d 597 (Pa. 2019).
Commonwealth v. LeClair,
236 A.3d 71, 78 (Pa.Super. 2020).
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However, we emphasize that a trial court is not required to prohibit
evidence merely because it is harmful to the defense. Commonwealth v.
Kouma, 53 A.3d 760, 770 (Pa.Super. 2012).
[E]xclusion is limited to evidence so prejudicial that it would
inflame the jury to make a decision based upon something other
than the legal propositions relevant to the case.... This Court has
stated that it 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[.]”
Id. (quoting Commonwealth v. Page,
965 A.2d 1212, 1221 (Pa.Super.
2009) (quotations and quotation marks omitted)).
In reviewing the record, we find the trial court properly exercised its
discretion in permitting the Commonwealth to introduce the prison visitation
logs, which established that the individuals who visited Appellant in jail were
persons that he had relationships with or were authorized to visit him. When
the prison visitation log was compared to the contacts listed in the phone
dropped by the perpetrator as well as the recipients of messages and calls
from the recovered phone, it provided strong evidence to establish that
Appellant was the owner and operator of the phone found at the crime scene.
The Commonwealth was able to use this evidence to corroborate the
victims’ identification of Appellant as their attacker as Appellant had been a
complete stranger to them before the robbery.
Appellant’s suggestion that the Commonwealth should have simply
compared the phone’s contacts and data on the recovered phone to
Appellant’s Facebook account is not convincing as the defense could have
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argued that another individual could have had access to Appellant’s Facebook
account and logged on. As such, the prison visitation log provided a stronger
connection between Appellant’s personal visitors and the contacts on the
phone dropped by the perpetrator of the crimes at issue.
We disagree with Appellant’s assertion that the probative value of the
prison visitation log was outweighed by unfair prejudice. The prison visitation
log in no way suggested that Appellant had been involved in prior criminal
activity or was incarcerated on different charges. The jury was aware
Appellant was arrested by police and taken into custody on the same day that
he had committed very serious offenses in robbing and attacking two women
near the entrance of one of the victim’s homes. The jury was also aware that
Appellant subsequently cut off his house arrest bracelet and had absconded,
necessitating a trial in absentia.
As Appellant has failed to show the trial court abused its discretion in
allowing the admission of the prison visitation logs, Appellant’s failure to show
his underlying claim has merit requires rejection of the ineffectiveness claim.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (“[c]ounsel
cannot be deemed ineffective for failing to raise a meritless claim”) (citation
omitted).
Second, Appellant asserts that appellate counsel was ineffective in
failing to appeal the trial court’s denial of his motion for a mistrial, which was
based on an improper statement by a prosecution witness.
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We begin by noting that “[a] mistrial is an extreme remedy only
warranted when the prejudice to the movant cannot be ameliorated to ensure
a fair trial.” Commonwealth v. Goods, 265 A.3d 662, 665 (Pa.Super. 2021)
(quoting Commonwealth v. Risoldi,
238 A.3d 434, 458 (Pa.Super. 2020)).
Our courts have recognized that a trial court may grant a mistrial only “where
the incident upon which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial by preventing the
jury from weighing and rendering a true verdict.” Commonwealth v.
Wright,
961 A.2d 119, 142 (Pa. 2008). As such, we review a trial court’s
decision to deny a motion for a mistrial pursuant to an abuse of discretion
standard.
Id.
Appellant specifically claims that appellate counsel should have
appealed the denial of his motion for a mistrial, which was based on the
inadvertent statement of prosecution witness Teresa Paris, the Custodian of
Records for the Philadelphia Prison System. The Commonwealth called Ms.
Paris as a witness to properly introduce the prison visitation log mentioned
above in order to draw a connection between the individuals who visited
Appellant in prison and the people listed as contacts on the perpetrator’s
phone found at the scene of the assault.
Before Ms. Paris testified, the Court specifically instructed Ms. Paris that
she should not use the phrase “police photo number” to identify Appellant.
However, in response to the prosecutor’s question on direct examination as to
how Ms. Paris retrieved Appellant’s visitation log, Ms. Paris responded, “When
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a person comes in to visit [the prison], they’re – they give the officer the name
and PP num – the name and identification number of the person that they’re
visiting, sign in, give identification, and they’re admitted.” Notes of Testimony
(N.T.), 6/9/15, at 160.
Thereafter, trial counsel moved for a mistrial based on Ms. Paris’s partial
reference to the phrase “PP number,” claiming that jury members would know
that that phrase signified that Appellant had a prior criminal history. The trial
court denied this request.
Our Supreme Court addressed a similar claim in Commonwealth v.
Young, 849 A.2d 1152 (Pa. 2004) and found that a mistrial was not warranted
when a detective testified that he had referred to the defendant’s police photo
number when showing a witness a compilation of photos of individuals “who
have had contact with the police.” The Supreme Court found the detective’s
mere passing reference to the photograph did not suggest that the photo was
in possession of the police due to the appellant’s prior criminal activity.
As such, the Supreme Court clarified that “passing references to [police]
photographs … and references to prior police contact do not amount to
reversible error. Instead, it is only those references that expressly or by
reasonable implication also indicate [that the defendant had] some
involvement in prior criminal activity that rise to the level of prejudicial error.”
Young, 849 A.2d at 1156.
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We agree with the trial court’s assessment that a mistrial was not
warranted as Ms. Paris’s remark was fleeting and in no way suggested that
Appellant was involved in prior criminal activity.
We reject Appellant’s suggestion that the case in Young is
distinguishable as the trial court in this case had specifically advised Ms. Young
to use the phrase “unique identifying number” and not “prison identification
number.” Appellant fails to recognize the trial court found that Ms. Paris’s
partial reference to the prison identification number was inadvertent as she
immediately corrected herself without any prompting when she realized her
error.
Similarly, we reject Appellant’s bald allegation that there is a reasonable
likelihood that the jury would not have convicted him if this evidence had not
been introduced. Ms. Paris’s fleeting reference to the “PP num” did not lead
to an inference that Appellant had engaged in prior criminal activity beyond
the charges at issue. The jury had already been made aware that Appellant
had been taken into custody for the instant charges when his prison visitation
logs were introduced into evidence. Moreover, the jury was informed that
Appellant was being tried in absentia as he had absconded from house arrest
after cutting his electronic monitor.
Accordingly, as we find that the trial court properly exercised its
discretion in denying Appellant’s request for a mistrial, we conclude that the
PCRA court correctly found that appellate counsel was not ineffective in failing
to challenge the trial court’s ruling on appeal. See Johnson, supra.
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Lastly, Appellant claims that trial counsel was ineffective in failing to
object to a particular jury instruction, which Appellant alleges was incorrect
and prejudicial. Appellant challenges the following portion of the trial court’s
jury instructions:
THE COURT: All right. You must consider and weigh the testimony
of each witness and give it such weight as in your judgment it is
fairly entitled to receive. The matter of credibility of a witness,
that is whether or not his or her testimony is believable and
accurate in whole or in part, is solely for your determination.
I’ll mention some factors that might bear upon that determination.
Does the witness have any interest in the outcome of the case;
any friendship or animosity towards persons in this case; behavior
of the witness on the witness stand; his or her demeanor; his or
her manner of testifying; whether or not he or she shows any bias
or prejudice that might color his or her testimony; the accuracy of
his or her memory and recollection; his or her ability and
opportunity to acquire knowledge concerning the matters of which
he or she testifies; consistency/inconsistency of his or her
testimony; as well as reasonableness or unreasonableness in light
of all the evidence in this case.
If you find there is a conflict in testimony, you, the jury have
the duty of deciding which testimony to believe. First, you should
try to reconcile, that is fit together, any conflicts in testimony if
you can fairly do so. Discrepancies in and conflicts between the
testimony of different witnesses may or may not cause you to
disbelieve some or all of their testimony. Remember, two or more
persons witnessing an incident may see or hear it happen
differently. Also it’s not uncommon for a witness to be innocently
mistaken in his or her recollection of how something happened. If
you cannot reconcile conflict in testimony, it’s up to you to decide
which testimony, if any, to believe and which to reject as true or
inaccurate.
N.T., 6/11/15, at 70 (emphasis added).
Appellant claims trial counsel was ineffective in failing to object to this
jury instruction which Appellant claims was flawed because the trial court did
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specifically not inform the jury verbatim that it was free to believe “all, part,
or none” of a witness’s testimony. Appellant criticizes the trial court for
instructing the jury they were responsible for determining whether each
witness was “believable and accurate in whole or in part” while omitting the
option that the jury could choose to believe “none” of a witness’s testimony.
Our review of this claim is guided by the following principles:
The nature of a court's instructions to the jury is “within the
discretion of the court, so long as the court accurately instructs
the jury on the appropriate legal principles involved.”
Commonwealth v. Kim, 888 A.2d 847, 852 (Pa.Super.2005)
(quoting Commonwealth v. Hartey, 424 Pa.Super. 29,
621 A.2d
1023, 1028 (1993)). This Court's main concern is “that the charge
clearly, adequately, and accurately presents the law to the jury
for its consideration.” Id. (quoting Commonwealth v. Collins,
810 A.2d 698, 701 (Pa.Super.2002)). The jury charge must be
reviewed “not in isolated portions but as a whole to ascertain
whether it fairly conveys the required legal principles at issue.”
Commonwealth v. McClendon, 874 A.2d 1223, 1232
(Pa.Super. 2005).
Commonwealth v. Willis, 990 A.2d 773, 776 (Pa.Super. 2010). A “review
of a challenged jury instruction “does not focus upon whether certain ‘magic
words’ were included in the charge. Rather, it is the effect of the charge as a
whole that is controlling.” Commonwealth v. Montalvo,
986 A.2d 84, 99
(Pa. 2009) (quoting Commonwealth v. Saunders,
602 A.2d 816, 818 (Pa.
1992) (citations omitted)).
In reviewing the jury instruction as a whole, we find that the trial court’s
instruction clearly, adequately, and accurately presented the law to the jury
in explaining how to assess the credibility of the witnesses. We reject
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Appellant’s claim that the trial court’s instruction was invalidated by its failure
to use the specific word “none” in its instruction.
The trial court indicated that the jury had the task of determining
“whether or not” to find a witness’s testimony to be believable and accurate.
N.T., 6/11/15, at 70. The trial court also informed the jury that
“[d]iscrepancies in and conflicts between the testimony of different witnesses
may or may not cause you to disbelieve some or all of their testimony.” Id.
Further, the trial court specifically stated that the jury was required to “decide
which testimony, if any, to believe and which to reject as true or inaccurate.”
Id. (emphasis added). As such, the trial court adequately instructed the jury
that they could choose to believe none of a witness’s testimony.
As there is no merit to Appellant’s claim that the trial court’s instruction
was erroneous, counsel cannot be deemed ineffective for failing to raise a
meritless claim. See Johnson, supra. Further, Appellant did not attempt to
argue that he was in any way prejudiced by the trial court’s instruction. As a
result, we discern no error in the PCRA court's denial of this request for relief.
Accordingly, for the foregoing reasons, we affirm the PCRA court’s order
dismissing the petition in this case.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2022
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