Opinion
1068 WDA 2023 J-S18039-24
10-22-2024
COMMONWEALTH OF PENNSYLVANIA v. CHARLES F. NEVELS, III Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered August 8, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011118-2015
BEFORE: PANELLA, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM
SULLIVAN, J.
Charles F. Nevels, III ("Nevels") appeals from the dismissal of his timely first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
The facts of Nevels's convictions are well known to the parties and do not require an extensive summary. Briefly, a jury found Nevels guilty of multiple counts of attempted murder, retaliation against a witness, and arson for setting fire ("the fire") to the home of individuals who testified against Theodore Smedley ("Theodore") in Theodore's murder case. Theodore's murder case involved a shooting in retaliation for a shooting that injured his younger brother Dorian Smedley ("Dorian"). At the time of the fire, Dorian had been charged in a separate case involving a home invasion and shooting, but was released on a bond. Nevels was Theodore's and Dorian's cousin.
Nevels apparently had similar physical characteristics as Dorian, and they wore similar dreadlocked hairstyles at the time of the fire.
Relevant to the issues in this appeal, Detective Charles Hanlon ("Detective Hanlon") reviewed surveillance camera footage from the area of the home. See N.T. Trial, Vol. I, at 303. The surveillance camera footage showed the suspected arsonist was a light-skinned Black male with facial hair and dreadlocks. See id. at 336. Based on this footage, Detective Hanlon initially suspected Dorian started the fire. See id. Additionally, the detective learned that Dorian, on the afternoon following the fire, posted a picture of himself on social media with a message it was a "hot ass day," which Detective Hanlon believed referred to the fire. See id. at 339. Based on his investigation, Detective Hanlon obtained an arrest warrant for Dorian. See id. at 340.
The transcripts from Nevels's trial cover proceedings from May 22 through May 31, 2017. The trial transcripts are divided into three volumes. The first two volumes, which are designated as "Volume I" and "Volume II," contain the proceedings from May 22 to May 25, and are paginated consecutively. The transcript of the proceedings from May 26 to May 31, are contained in a separate volume and start at page one. While not designated as such on the coversheet, we refer to the transcript of the proceedings from May 26 to May 31 as "Volume III."
At the end of June 2015, Detective Hanlon arrested Dorian. See id. at 346. When informed of the charges related to the fire, Dorian implicated Nevels. See id. at 353. However, Dorian provided no additional details after he learned he would not be released. See id. at 354-55. In August 2015, Dorian gave police a more detailed statement. See id. at 367-69. Dorian detailed how, four days before the fire, he arranged a three-way phone call between Theodore, who was in prison at the time, and Nevels. See id. at 369. Detective Hanlon obtained recordings of Theodore's prison phone calls, as well as Dorian's and Nevels's cellphone and social media activity. See id. at 374; N.T. Trial, Vol. II, at 775-813. A historical cell site analysis from around the time of the fire tracked the phone Nevels used to and from the area of the fire. See N.T. Trial, Vol. II, at 715-32; see also id. 759-69.
At trial, the Commonwealth argued Nevels and Theodore, using coded language, planned the fire at the home during the three-way prison phone call. See N.T. Trial, Vol. III, at 126-29 (referencing phrases such as "when 500 Fortune business don't go right, they burn[,]" "I was worried about them n[]s, you know, that rattin and shit[,]" "I'm going down there to holler at him at night[,]" and "I need to holler at him personal, when you, know, I hand him this Fortune 500 application and that shit burnt down") (italics omitted). Additionally, the Commonwealth offered Nevels's social media messages after the fire as admissions to starting the fire and consciousness of guilt evidence. See id. at 142-46 (referencing phrases such as "[Dorian] told on me das was on my mind fukin rat[,]" "police be like a n[] wit dread . . . I be like you aint c my face[,]" and "on my durk shit . . . dreds be gone!!! GANG") (italics omitted). The Commonwealth observed Nevels had cut off his dreadlocks after the fire and, when referring to Dorian, did not state Dorian was lying about Nevels's role in the fire. See id. at 143-44. Nevels testified at trial. He denied setting the fire and stated Dorian started the fire. See N.T. Trial, Vol. III, at 48, Nevels attempted to refute the evidence he and Theodore discussed burning the witnesses' home on the three-way prison phone call. See id. at 45-48. He also attempted to explain his post-fire social media messages as jokes or references to music lyrics. See N.T. Trial, Vol. III, at 45-64. He further explained he cut off his dreadlocks for job interviews and his definition of a snitch included Dorian lying about him setting the fire. See id. at 61-62.
Dorian entered guilty pleas in his separate case. See Am. PCRA Pet., 2/28/23, Ex. 4 (transcript of Dorian's October 28, 2016 guilty plea). The Commonwealth withdrew charges of attempted murder, and Dorian pleaded guilty to aggravated assault, burglary, robbery, conspiracy, and gun charges. See N.T. Trial, Vol. II, at 453-55. Sentencing in Dorian's separate case was deferred until after Nevels's trial, with the Commonwealth agreeing to advise the sentencing court of Dorian's cooperation. See id. at 456.
At Nevels's trial, Detective Hanlon testified about his investigation of the fire, and at one point, stated he reviewed surveillance camera footage to find a better view of "the [d]efendant." N.T. Trial, Vol. I, at 326. Nevels's counsel ("trial counsel") objected, but, at sidebar, withdrew the objection to avoid highlighting the testimony. See id. at 327.
Dorian testified against Nevels. See N.T. Trial, Vol. II, at 444-594. The Commonwealth and trial counsel both elicited Dorian's testimony concerning his separate case, namely, the withdrawal of attempted murder charges, the charges to which he pleaded guilty, and the fact he was awaiting sentencing with the Commonwealth's representation it would inform the sentencing court of his cooperation. See id. at 453-56, 586-87. At a sidebar conference during the Commonwealth's direct examination of Dorian, trial counsel indicated he would request special jury instructions regarding Dorian's plea to crimen falsi in his separate case and bias in favor of the Commonwealth. See N.T. Trial, Vol. II, at 489-90. Later, trial counsel filed proposed points for charge, which included a request for a special instruction regarding Dorian's bias. See Points for Charge, 5/30/17, unnumbered at 6, 8. There is no indication trial counsel requested a crimen falsi instruction. The trial court's jury charge did not include the requested instruction or a crimen falsi instruction, and trial counsel did not object to those omissions. See N.T. Trial, Vol. III, at 190-91. The jury returned with guilty verdicts on all counts.
Aside from the filing of proposed points for charge, the record does not indicate the trial court held a charging conference on the proposed points. The trial transcripts do not include any rulings on the jury charge.
Specifically, trial counsel's requested points for charge included the following:
You have heard evidence that Commonwealth witness, Dorian . . .[,] has pending criminal charges of robbery, burglary and a firearms offense. You may consider this evidence in considering whether he has a bias in favor of the Commonwealth.
* * * *
You may have heard evidence or reference to the fact that a witness or party has a criminal record or may have been incarcerated. There is a particular danger to such evidence or reference. You cannot consider such in determining the guilt of [Nevels]. You may, if you choose, consider the pending charges of Dorian . . ., as evidence of his bias. You may not consider any other evidence of criminal charges or incarceration status of any witness or party in determining whether the Commonwealth has proven the crimes charged beyond a reasonable doubt.
Points for Charge, 5/30/17, unnumbered at 6, 8 (emphasis added).
The trial court's charge included a general instruction on witness credibility that indicated the jury should consider a witness's "interest in the outcome of the case, bias, prejudice, or other motive that might affect his or her testimony[.]" N.T. Trial, Vol. III., at 156. Later, the trial court instructed:
You may not consider any other evidence of criminal charges in determining whether the Commonwealth has proven the crime beyond a reasonable doubt. However, you have heard evidence that Commonwealth witness Dorian Smedley has pending criminal charges of robbery, burglary and firearms. You may not consider any statements of anyone involved in Facebook conversations with Charles Nevels except those of Charles Nevels for the truth of anything said.Id. at 183 (emphasis added).
The trial court sentenced Nevels to an aggregate term of sixty-two to one hundred twenty-four years of imprisonment. This Court affirmed the judgment of sentence. See Commonwealth v. Nevels, 203 A.3d 229 (Pa. Super. 2019). Our Supreme Court granted allowance of appeal and affirmed in August 2021. See Commonwealth v. Nevels, 235 A.3d 1101 (Pa. 2020).
Nevels timely filed a pro se PCRA petition. The PCRA court appointed present counsel, who filed an amended PCRA petition. Therein, Nevels claimed trial counsel was ineffective for: (1) failing to seek a cautionary instruction or a mistrial after Detective Hanlon referred to "the [d]efendant" when testifying about the surveillance camera footage; (2) failing to demonstrate Dorian's bias when he faced significant charges and possible sentences in his separate case; and (3) not requesting special jury instructions on Dorian's credibility or objecting to the jury charge as given. See Am. PCRA Pet., 2/28/23, at 6, 10-16; see also id. at 14 n.4. After the Commonwealth filed an answer, the PCRA court issued a notice of intent to dismiss the amended petition without a hearing. Nevels did not respond, and the PCRA court dismissed the petition on August 8, 2023. Nevels timely appealed, and both he and the PCRA court complied with Pa.R.A.P. 1925.
Nevels raises the following issues for our review:
I. Did the lower court abuse its discretion in denying the PCRA petition, as amended, without a hearing where . . . Nevels set forth a meritorious claim concerning material facts; specifically, that [trial] counsel was ineffective for failing to move for a mistrial or request a cautionary instruction when the detective who reviewed the video of the scene of the crime for the jury, identified . . . Nevels as the person in the video without any basis for doing so; thereby depriving [Nevels] of a fair trial?
II. Did the lower court abuse its discretion in denying the PCRA petition, as amended, without a hearing where . . . Nevels set forth a meritorious claim concerning material facts; specifically, that [trial] counsel was ineffective for failing to ensure that the jury was adequately informed of and understood the significance of . . . [Dorian's] potential bias arising out of his outstanding unrelated criminal matters?
A. Was [trial] counsel ineffective for: 1) not presenting evidence that when Dorian . . . first implicated . . . Nevels in the crimes, [Dorian] and the police were well-aware of serious charges pending against [Dorian] in another unrelated case; 2) not informing the jury of the nature of the pending charges and that [Dorian] was well-aware of the lengthy sentence he faced; and 3) not ensuring the jury knew that [Dorian's] sentencing hearing was postponed until after he testified against . . . Nevels?
B. Was counsel ineffective for not requesting jury instructions explaining the significance of the crimen falsi charges to which Dorian . . . pleaded guilty; and of the fact that [Dorian] was facing serious charges when the police questioned him about the [fire] at which time he pointed the finger at . . . Nevels; and how the promise
that [Dorian's] cooperation would be presented at his future sentencing hearing should factor into the jury's weighing of the evidence, specifically, [Dorian's] credibility?
Nevels's Brief at 4-5 (some capitalization omitted).
This Court's standard for reviewing the dismissal of PCRA relief is well-settled:
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 record in the light most favorable to the prevailing party in the PCRA court. We are bound by any credibility determinations made by the PCRA court where they are supported by the record. However, we review the PCRA court's legal conclusions de novo.Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (citation and quotations omitted).
To prevail on a claim of ineffective assistance of counsel, an appellant must establish that:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. . . . If a claim fails under any required element . . . the court may dismiss on that basis. . . . Counsel is presumed to be effective, and the burden of demonstrating ineffectiveness rests on the appellant.Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en banc) (citations omitted).
"It is well settled that there is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary." Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citation omitted). To obtain a PCRA hearing, a petitioner must demonstrate that he raised a genuine issue of material 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. See Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).
In his first issue, Nevels asserts the PCRA court abused its discretion when dismissing his claim that trial counsel should have requested a cautionary instruction or mistrial.
With respect to a request for a cautionary instruction, our Supreme Court has stated, "Under some circumstances, trial counsel may forego objecting to an objectionable remark or seeking a cautionary instruction on a particular point because objections sometimes highlight the issue for the jury, and curative instructions always do." Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012) (citations omitted). Moreover,
[a] declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. . . . Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, . . . assess the degree of any resulting prejudice.Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016).
In support of his issue, Nevels focuses on the detective's testimony he reviewed the security camera footage to obtain images of "the [d]efendant." Nevels's Brief at 22. Nevels notes trial counsel objected to the reference but withdrew the objection at a sidebar conference. See id. at 24. Nevels argues the detective's reference constituted identification testimony without a proper foundation and served to bolster Dorian's testimony that Nevels started the fire. Id. at 24-25. He asserts trial counsel had no reasonable basis for failing to request a cautionary instruction or a mistrial. See id. at 25. He claims trial counsel's omissions resulted in prejudice because the identity of the person shown in the surveillance camera footage was a critical issue at trial, the jury was permitted to rely on Detective Hanlon's "speculative testimony" when deciding whether the surveillance camera footage showed Nevels. Id. at 25.
The PCRA court concluded this issue merited no relief because trial counsel withdrew his objection to Detective Hanlon's reference to "the [d]efendant[,]" and stated he did not want to emphasize the testimony. PCRA Ct. Op., 11/2/23, at 5-6. The PCRA court concluded trial counsel's decision not to draw further attention to the detective's singular use of the term "defendant" was reasonable. See id. at 6. The PCRA court also concluded trial counsel could not be ineffective for failing to request a mistrial because the reference did not deprive Nevels of a fair and impartial trial. See id.
Following our review, we perceive no abuse of discretion in the PCRA court's decision. A review of the record makes clear Detective Hanlon's reference to the "the [d]efendant" was an isolated misstatement, not intentionally elicited by the Commonwealth, nor repeated at trial. Detective Hanlon initially testified about his investigation into the fire, and his testimony about the security camera footage was limited to the process leading him to suspect Dorian started the fire. See N.T. Trial, Vol. I, at 303-40. During the detective's testimony, he generally referred to images of the perpetrator as "he," or the "actor." See id. at 303-25; see also id. at 330-36. However, when the Commonwealth asked why the detective would have replayed the security camera footage during his investigation, the detective responded, "[T]o get a clearer picture of the [d]efendant's face." Id. at 325-26. After this reference to "the [d]efendant[,]" and the sidebar conference on trial counsel's objection, the detective continued to testify he believed the person on the surveillance camera footage was Dorian, he investigated Dorian's social media account, and he then prepared a warrant for Dorian's arrest based on the information he gathered. See id. at 336-41.
Notably, the detective did not testify he identified Nevels using the security camera footage. Cf. id. at 336-38 (indicating Detective Hanlon's belief the security camera footage showed Dorian and the Commonwealth published to the jury a picture of Dorian shortly thereafter), 353 (indicating Detective Hanlon did not know Nevels existed until Dorian implicated him). Indeed, after trial counsel's objection to the reference to "the [d]efendant[,]" the trial court stated the Commonwealth could not elicit testimony that the person on the surveillance camera footage was Nevels. See id. at 328.
Based on this record, we agree with the PCRA court that any reference to Nevels as the person shown in the security camera footage was fleeting. We also agree with the PCRA court that trial counsel stated a reasonable basis for forgoing a cautionary instruction to avoid highlighting it. See PCRA Ct. Op., 11/2/23, at 5-6; N.T. Trial, Vol. I, at 327; accord Koehler, 36 A.3d at 146. Lastly, having examined the detective's reference in the context of trial, we conclude Nevels has not demonstrated he would have been entitled to a mistrial. See generally Commonwealth v. Kerrigan, 920 A.2d 190, 200 (Pa. Super. 2007) (noting a "singular, passing reference" to a defendant's prior conviction is insufficient to show the trial court abused its discretion in denying a mistrial). Accordingly, Nevels's first issue merits no relief.
In his second issue, Nevels claims trial counsel did not fully cross-examine Dorian concerning his bias and also failed to request specific jury instructions concerning Dorian's credibility. We address the cross- examination and jury instruction issues separately.
With respect to trial counsel's failure to demonstrate Dorian's bias, "[a] failure to . . . impeach a key witness is considered ineffectiveness in the absence of a reasonable strategic basis for not impeaching." See Commonwealth v. Small, 980 A.2d 549, 565 (Pa. 2009) (discussing a claim trial counsel was ineffective for failing to impeach a witness with crimen falsi); see also Commonwealth v. Evans, 512 A.2d 626, 632 (Pa. 1986) (holding "a criminal defendant must be permitted to challenge a witness's self-interest by questioning him about possible or actual favored treatment by the prosecuting authority in the case at bar, or in any other non-final matter involving the same prosecuting authority"); accord Commonwealth. v. Kimball, 724 A.2d 326, 334 (Pa. 1999) (applying Evans in the context of an ineffective assistance of counsel claim).
Nevels asserts Dorian "was highly motivated to tell the police and testify Nevels was the perpetrator." Nevels's Brief at 28. In relevant part, Nevels argues trial counsel should have highlighted the offenses to which Dorian pleaded guilty, the significance of the Commonwealth's withdrawal of the attempted murder charge, and the possible maximum sentence Dorian Smedley faced. See id. at 28-29. Nevels contends trial counsel also inadequately demonstrated how the timing of Dorian's statements to police and plea in the separate case undermined his credibility. See id. at 29-31.
The PCRA court considered and dismissed Nevels's claim that trial counsel failed to challenge Nevels's bias. The PCRA court noted the Commonwealth preemptively elicited Dorian's testimony concerning the nature of the separate case against him, the offenses charged, the plea agreement he reached with the Commonwealth, the fact he was awaiting sentencing, and the Commonwealth's intent to inform the sentencing court of his cooperation. See PCRA Ct. Op., 11/2/23, at 7-9. The court noted trial counsel also extensively cross-examined Dorian and consistently attacked his credibility based on his separate case. See id. at 9-10.
Following our review, we conclude the record supports the PCRA court's decision to dismiss this claim. As noted by the PCRA court, trial counsel elicited testimony concerning Dorian's pending case. See N.T. Trial, Vol. II, at 586-88, 592-94. Contrary to Nevels's argument, the record confirms trial counsel presented the jury with the nature of the charges against Dorian, the Commonwealth's withdrawal of an attempted murder charge against Dorian, the fact that Dorian was awaiting sentencing in his separate case, and the Commonwealth's promise to inform the sentencing court of Dorian's cooperation. See id. Thus, we conclude Nevels's failure to cross-examine claim lacks arguable merit.
As noted by Nevels, trial counsel did not confront Dorian about his potential sentencing exposure of seventy-seven-and-one-half to one hundred fifty-five years in his separate case. However, we cannot say this omission alone resulted in prejudice, where, as here, the parties both apprised the jury of details of Dorian's separate case and the nature of his plea. See Small, 980 A.2d at 565 (concluding trial counsel's failure to impeach a witness using crimen falsi did not result in prejudice where the impeachment would have been merely cumulative of significant credibility attacks already occurred).
With respect to Nevels's jury instruction issue, it is well settled that a defendant is generally entitled to a requested jury instruction if the evidence supports the instruction. See Commonwealth v. Cole, 227 A.3d 336, 340 (Pa. Super. 2020) (discussing a claim trial counsel was ineffective for failing to request a crimen falsi instruction); see also Commonwealth v. Harris, 852 A.2d 1168, 1176 (Pa. 2004) (discussing a claim trial counsel was ineffective for failing to request an instruction informing the jury it was permitted to find a witnesses who had pending charges against him was biased in favor of the Commonwealth).
Nevels argues trial counsel was ineffective for failing to request a special jury instruction explaining Dorian pleaded guilty to crimen falsi offenses of robbery and burglary in his separate case. See Nevels's Brief at 31-32. Discussing Cole, Nevels contends his claim has arguable merit and given the importance of Dorian's testimony implicating him, trial counsel could have no reasonable basis for failing to request a crimen falsi instruction. See id. at 32-33. Nevels maintains the omissions in the trial court's jury charge resulted in prejudice because the Commonwealth's circumstantial evidence against him was not overwhelming, Dorian's testimony was critical to linking him to the fire, and the jury lacked guidance on how to consider Dorian's interest in the outcome of the case. See id. at 32-35. Citing Harris, Nevels also asserts trial counsel was also ineffective for failing to request specialized instructions to consider Dorian's bias due to the pending separate case. See id. at 34-36. As in his amended PCRA petition, Nevels adds a footnote observing that trial counsel did not object after the trial court charged the jury. See id. at 33 n.4; see also Am. PCRA Pet., 2/28/23, at 14 n.4.
The PCRA court asserts it properly dismissed Nevels's claim that trial counsel was ineffective for failing to request special jury instruction concerning Dorian's crimen falsi and potential bias. See PCRA Ct. Op., 11/2/23, at 11-12. The PCRA court notes the suggested standard jury instructions do not include an instruction where a witness pleaded guilty to crimen falsi but before the imposition of a sentence. See id. at 11; see also Pa.R.E. 609(a) (discussing the admissibility of evidence of a "conviction" for crimen falsi); Pa.SSJI (Crim) § 4.08D (outlining the suggested standard jury instruction for impeachment of a witness for a "prior conviction" for, inter alia, crimen falsi). The PCRA court, referring to the mid-trial discussion, indicates trial counsel agreed no standard instructions covered unsentenced crimen falsi convictions. See PCRA Ct. Op., 11/2/23, at 10-11. The PCRA court further suggested the parties later agreed to the instructions it issued, and trial counsel made Dorian's bias and motive plainly clear to the jury. See id. at 11-12.
As noted above, the trial transcripts did not include a charging conference. Therefore, we are unaware of any arguments, objections, or agreements reached about the jury charge.
As to Nevels's claim that trial counsel should have requested a crimen falsi instruction based on Dorian's guilty plea to burglary and robbery, we conclude Nevels has failed to establish arguable merit to his claim. Burglary and robbery are crimen falsi. See Commonwealth v. M. Harris, 884 A.2d 920, 925 (Pa. Super. 2005). However, under the common law, a party could not use unsentenced convictions to impeach a witness. See Commonwealth v. Doswell, 621 A.2d 104, 105 (Pa. 1993) (opinion announcing the judgment of the court); Commonwealth v. Zapata, 314 A.2d 299, 302 (Pa. 1974). There is no indication that Rule 609, which governs impeachment by evidence of a criminal conviction, intended to abrogate the common law rule in Zapata. Cf. Pa.R.E. 609, cmt. (citing Zapata and stating, "As a general rule, evidence of a jury verdict of guilty or a plea of guilty or nolo contendere may not be used to attack the credibility of a witness before the court has pronounced sentence"). It follows that unless a petitioner shows an unsentenced conviction was admissible as crimen falsi, as opposed to bias or possible favorable treatment, he will not be entitled to a specific crimen falsi instruction. See generally Commonwealth v. Vucich, 194 A.3d 1103, 1111 (Pa. Super. 2018) (noting that jury instructions should "adequately and accurately reflect the law and . . . guide the jury properly in its deliberations") (citation omitted).
Here, the trial court expressed doubts when asked to issue a crimen falsi instruction concerning Dorian's unsentenced guilty pleas to burglary and robbery. See N.T. Trial, Vol. II, at 490; See PCRA Ct. Op., 11/2/23, at 11. That doubt has some support in the law. See Pa.R.E. 609, cmt.; Zapata, 314 A.2d at 302; see also Pa.SSJI (Crim) § 4.08D. Nevels has not squarely argued any exception to the general rule that unsentenced convictions are inadmissible as crimen falsi or explained why a guilty plea to crimen falsi without a sentence should require a crimen falsi jury instruction. Nevels makes no attempt to construe the term "conviction" as meaning an adjudication of guilt as opposed to a judgment of sentence; Nevels simply presumes a "conviction" for the purpose of admitting crimen falsi evidence and a crimen falsi instruction equates to guilty plea. See Nevels's Brief at 32 ("When there is evidence that a witness has been found guilty of a crimen falsi offense, the jury should be instructed regarding its relevancy and the use which can be made of it in determining the witness's credibility"). It is the appellant's burden to demonstrate his underlying claim has merit. See Johnson, 236 A.3d at 68. Nevels has not carried that burden. Accordingly, we conclude Nevels failed to establish arguable merit to his claim that trial counsel was ineffective for failing to request a crimen falsi instruction based on an unsentenced conviction.
Our independent research has uncovered no Pennsylvania case requiring a court to issue a crimen falsi instruction based on a witness's adjudication of guilt.
We add that in Cole, counsel's omission with respect to a crimen falsi instruction was prejudicial because the Commonwealth's case relied on the testimony of the witness critical to determining whether he planned and premeditated a killing. See Cole, 227 A.3d at 341-42. The Commonwealth here corroborated Dorian's testimony linking Nevels to the fire with historical cell site analysis and Nevels's own statements before and after the fire.
To the extent Nevels claims trial counsel was ineffective with respect to a bias instruction, our Supreme Court's decision in Harris belies Nevels's arguments and supports the PCRA court's decision that Nevels failed to establish prejudice. In Harris, trial counsel did not request a bias instruction where a witness, who identified Harris in a murder, was on probation or parole and had an open case. See Harris, 852 A.2d at 1177. Our Supreme Court concluded no prejudice resulted from Harris's counsel's failure to request a bias instruction because counsel had impeached the witness using the open case and the trial court issued a general instruction for the jury to consider a witness's interest in the outcome. See id. Here, as in Harris, the jury "was clearly made aware of the possibility that [Dorian] had agreed to testify against [Nevels] in order to receive favorable treatment from the Commonwealth." See id.; see also N.T. Trial, Vol. II, at 454-56, 586-88, 592-94. Like the trial court in Harris, the trial court here issued a general instruction that the jury should consider a witness's "interest in the outcome of the case, bias, prejudice, or other motive that might affect his or her testimony[.]" See Harris, 852 A.2d at 1177; see also N.T. Trial, Vol. III., at 156. Thus, we agree with the PCRA court's decision to dismiss Nevels's failure to request a bias instruction claim.
Although Nevels frames this issue as a failure to request a jury instruction claim, the record shows trial counsel did request special instructions concerning Dorian's bias. See Proposed Points for Charge, 5/30/17, unnumbered at 6, 8. However, the trial court apparently did not adopt the requests in full. Therefore, this issue is more properly framed as a failure to object claim, although the distinction between a failure to request and a failure to object is not material to our analysis.
Order affirmed.
Judgment Entered.