Opinion
J-S06044-18 No. 1187 EDA 2017
09-14-2018
COMMONWEALTH OF PENNSYLVANIA, Appellant v. TERRENCE BUTLER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 30, 2017 in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0001837-2013, CP-51-CR-0001838-2013, CP-51-CR-0001839-2013 BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
The Commonwealth of Pennsylvania appeals from the Order granting the Petition filed by Terrence Butler ("Butler"), which sought relief pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
42 Pa.C.S.A. §§ 9541-9546. --------
In its Opinion, the PCRA court set forth the facts and relevant procedural history underlying the instant appeal, which we adopt as though fully restated herein. See PCRA Court Opinion, 8/29/17, at 1-4.
On appeal, the Commonwealth presents the following claim for our review:
Did the PCRA court err in deeming trial counsel ineffective for not raising a hearsay objection to course-of-conduct evidence where (A) an objection would have been meritless; (B) [Butler] offered no evidence
that counsel performed unreasonably[;] and (C) [Butler] suffered no prejudice?Brief for the Commonwealth at 4.
The Commonwealth claims that the PCRA court improperly granted Butler relief on his claim that counsel rendered ineffective assistance by not asserting a hearsay objection to course-of-conduct evidence presented during his trial. Id. at 11. The Commonwealth states that at trial, Detective Francis McClain ("Detective McClain") testified that he had interviewed the passenger in the vehicle, Shawn Kennedy ("Kennedy"), and that Kennedy had "corroborated everything Officer Dilworth had said. He was then run through our data base for any warrants, and released." Id. at 11-12 (quoting N.T., 12/17/14, at 44). The Commonwealth argues that an objection to this testimony would have been without merit, as it was offered to explain Detective McClain's course of conduct in releasing Kennedy from custody. Brief for the Commonwealth at 12. The Commonwealth contends that the reason for releasing Kennedy was relevant, as Butler was claiming that Kennedy was released as part of a plan to frame Butler. Id. at 13.
The Commonwealth further argues that at the PCRA hearing, counsel offered two reasons for not objecting to Detective McClain's testimony. Id. According to the Commonwealth, counsel explained that (1) she did not want to call undue attention to the testimony; and (2) did not consider Detective McClain's statement to be damaging, as it was useful to advance her theory that the police had fabricated Butler's role in the crime. Id. The Commonwealth points out that at the hearing, defense counsel explained her theory, i.e., that the police fabricated Butler's involvement in the crime to protect Kennedy, the real culprit, whose father was a high-ranking police officer. Id. at 14. The Commonwealth further points out that at trial, defense counsel attempted to introduce Kennedy's out-of-court statement as evidence of fabrication, but the trial court precluded its admission. Id. at 16. Counsel explained at the PCRA hearing that she did not object to Detective McClain's testimony about Kennedy's statement, because she had intended to introduce the same statement herself. Id. at 17.
Finally, the Commonwealth argues that Butler suffered no prejudice from the failure of counsel to object to Detective McClain's testimony. Id. at 18. The Commonwealth asserts that, "[h]ad the jury believed the theory of fabrication, it would have had to believe that the police worked with Kennedy to cover his own guilt. [Butler] could not have been prejudiced by evidence that supported his defense at trial." Id. (emphasis omitted).
In reviewing an order of the PCRA court, "we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Montalvo , 114 A.3d 401, 409 (Pa. 2015) (citation and internal quotation marks omitted).
"The PCRA court's credibility determinations, when supported by the record, are binding on this Court[.]" Commonwealth v. Mason , 634 Pa. 359, 130 A.3d 601, 617 (Pa. 2015) (quoting Commonwealth v. Roney , 622 Pa. 1, 79 A.3d 595, 603 (Pa. 2013)). Appellant has the burden to persuade this Court that the PCRA court erred and that such error requires relief. See
Commonwealth v. Brown , 48 A.3d 1275, 1277 (Pa. Super. 2012) ("It is an appellant's burden to persuade [an appellate court] that the PCRA court erred and that relief is due."); see also Commonwealth v. Bracey , 568 Pa. 264, 795 A.2d 935, 940 n.4 (Pa. 2001) (stating that the appellant failed to meet his burden of establishing that he is entitled to relief).Commonwealth v. Wholaver , 177 A.3d 136, 144-45 (Pa. 2018).
In asserting a claim of ineffective assistance of counsel, the petitioner must prove that
the underlying claim is of arguable merit, counsel's performance lacked a reasonable basis, and counsel's ineffectiveness caused him prejudice. Prejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. This standard is the same in the PCRA context as when ineffectiveness claims are raised on direct review. Failure to establish any prong of the test will defeat an ineffectiveness claim.Commonwealth v. Solano , 129 A.3d 1156, 1162-63 (Pa. 2015) (citations omitted).
The Commonwealth argues that the PCRA court improperly concluded that counsel rendered constitutionally ineffective assistance by not objecting to the hearsay testimony of Detective McClain. "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa.R.E. 801(c). However, an "out of court statement offered not for its truth but to explain the witness's course of conduct is not hearsay." Commonwealth v. Johnson , 42 A.3d 1017, 1035 (Pa. 2012).
In its Opinion, the PCRA court addressed the Commonwealth's claim and concluded that it lacks merit. See PCRA Court Opinion, 8/29/17, at 5-8. We agree with the sound reasoning of the PCRA court, as set forth in its Opinion, and affirm on this basis as to the Commonwealth's claim. See id.
Additionally, we emphasize that the PCRA court did not credit counsel's testimony that she had a reasonable basis for not objecting to the hearsay testimony regarding Kennedy's statement:
[C]ounsel's stated reasons for not objecting [are] not valid. That it was [] Kennedy, and not her client, who was the driver of the vehicle was the core of counsel's defense. Under these circumstances, this court cannot accept trial counsel's expressed reasons for failing to object to the harmful hearsay statements of Detective McClain.Id. at 7. The PCRA court further found that the hearsay testimony was not cumulative, and that the prosecutor emphasized the objectionable testimony during his closing argument. Id. (citing N.T., 12/18/14, at 146-47).
The PCRA court's findings are supported in the record, and its legal conclusions are sound. Accordingly, we affirm the Order of the PCRA court, which granted Butler a new trial.
Order affirmed.
Judge McLaughlin joins the memorandum.
Judge Bowes files a dissenting memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/14/18
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