February 19, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
JAMES KLEIN Appellant
Appeal from the PCRA Order September 12, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1211291-2002
BEFORE: BOWES, J., LAZARUS, J., and WECHT, J.
James Klein appeals from the order of the Court of Common Pleas of Philadelphia County, which dismissed his petition brought pursuant to the Post-Conviction Relief Act ("PCRA"). After careful review, we affirm.
Klein was convicted of two counts of first-degree murder and was sentenced to two life terms. On direct appeal, this Court affirmed, and summarized the facts of the case as follows:
The putative prologue to the killings was the kidnapping and beating of [Klein] by his eventual victims, Danny Jones and Dwight Jenkins. [Klein] had been released when he agreed to lead his captors to the house of one Melvin Marrero, whom Jones and Jenkins had apparently attempted to kill on an earlier occasion.2 On March 7, 2002, Jones and Jenkins met [Klein] at a diner in New Jersey, and drove with him to the 6400 block of Tulip Street in Philadelphia where [Klein] shot and killed both men, firing several more shots at the victims before fleeing in a car waiting for him around the corner. He then absconded to Las Vegas, where he was later arrested.
2 The earlier occasion supposedly arose after [Klein], having been given $8, 000.00 by Marrero to buy drugs in New York, produced only counterfeits. When Marrero demanded return of the money, [Klein] informed Jones, who bore a grudge against Marrero because of a prior disagreement, of Marrero's whereabouts. Jones and an accomplice located Marrero in an alley near his home, pulled up behind the car he was in and began shooting. However, Marrero managed to escape.
Commonwealth v. Klein, No. 312 EDA 2005, unpublished memorandum at 1-2 (Pa.Super. filed November 15, 2006).
Following this Court's order affirming Klein's judgment of sentence, he filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on March 21, 2007. Commonwealth v. Klein, 919 A.2d 955 (Pa. 2007).
On April 28, 2007, Klein filed a timely pro se PCRA petition. Counsel was appointed, and filed an amended petition on July 8, 2011. The Commonwealth filed a motion to dismiss on October 19, 2011, and Klein filed a response on February 3, 2012. By order filed August 3, 2012, the court notified the parties of its intention to dismiss the petition pursuant to Pa.R.Crim.P. 907. On August 23, 2012, Klein filed his response to the notice, and by order dated September 12, 2012, the court dismissed the PCRA petition without a hearing.
On October 10, 2012, Klein filed a timely notice of appeal, and on January 16, 2013, he filed a court-ordered statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed its Rule 1925(a) opinion on February 22, 2013.
On appeal, Klein raises the following issues for our review: 
1. Was trial counsel ineffective for failing to investigate and present material witnesses from the neighborhood where the murders occurred?
2. Was trial counsel ineffective for failing to investigate and present an alibi witness who had been identified by [Klein]?
3. Was trial counsel ineffective for failing to object to the presentation of irrelevant and hearsay evidence to establish particulars of [Klein's] alleged "flight, " and by failing to object to the prosecutor's argument and the court's instruction regarding "flight" and "consciousness of guilt"?
4. Was trial counsel ineffective for failing to object to the prosecutor's improper argument?
5. Was trial counsel ineffective for failing to request jury instructions regarding witness credibility and other crimes evidence?
6. Was trial counsel ineffective for failing to request a "corrupt source" instruction with respect to David Foster and/or Melvin Marrero?
7. Was trial counsel ineffective for failing to object when the court, in charging the jury, referenced only the statements by Melvin Marrero and Ketkarun Boonsong, and omitted any mention of the statement by Catherine Johnson, in explaining that prior inconsistent statements could be used as substantive evidence?
8. Did the lower court err in dismissing Klein's PCRA petition without holding an evidentiary hearing.
Appellant's Brief, at 3.
In reviewing an appeal from the denial of PCRA relief, "our standard of review is whether the findings of the court are supported by the record and free of legal error." Commonwealth v. Martin, 5 A.3d 177, 182 (Pa. 2010) (citations omitted).
To be eligible for relief under the PCRA, Klein must prove by a preponderance of the evidence that his conviction resulted from "ineffective assistance of counsel which, in the circumstances of the particular case so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). "Counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant." Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011). To prevail on an ineffectiveness claim, the defendant must show that the underlying claim had arguable merit, counsel had no reasonable basis for his or her action, and counsel's action resulted in prejudice to the defendant. Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa. 1987).
Klein argues that trial counsel was ineffective for failing to present the testimony of witnesses who lived in the neighborhood where the murders took place and the testimony of police officers who investigated the crime scene. He asserts that if counsel had presented the testimony of these witnesses, it "would have raised serious doubts in the minds of the jurors as to the testimony of David Foster and the time the Commonwealth alleged the murders occurred." Appellant's Brief, at 20.
At trial, Foster testified that on the night of March 6, 2002, the victims left his house in Pemberton, New Jersey to meet Klein at a diner. At approximately 10:45 or 11:00 p.m., Jones called Foster to tell him that he and Jenkins had met Klein. Between 11:15 and 11:30 p.m., Jones used his cell phone to call Foster again and tell him that he and Jenkins were on their way to Philadelphia, and that everything was fine. N.T. Trial, 10/12/04, at 6, 22-29, 37, 51-52.
In order to prevail on a claim of ineffectiveness for failing to call a witness, a defendant must prove, in addition to the three Pierce requirements, that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the witness's testimony was so prejudicial as to have denied him a fair trial.
Commonwealth v. Wright, 961 A.2d 119, 155 (Pa. 2008).
Klein asserts that counsel was ineffective for failing to call as a witness Nancy Halderman, a Tulip Street resident. On March 7, 2002, the morning after the murders, Nancy Halderman gave a statement to the police that on March 6, 2002, at approximately 7:10 p.m., she saw "the same type van and same color" van as the one in which the victims were found outside of 6446 Tulip Street. She saw two men enter the van, and noted that the man in the passenger's seat was wearing a red and white baseball cap. See Amended PCRA Petition, 7/8/11, Exhibit A. Klein argues that this testimony "contradicts Foster's statement and trial testimony that he was with the victims at that time." Id. at 6. Nancy Halderman also stated that she heard "a popping sound" "at about 11:00 to 11:30 p.m." Id.
At trial, counsel cross-examined Officer John Quartullo, whose testimony confirmed that at around 11:00 p.m. on March 6, 2002, Nancy Halderman heard a "bang" or "popping sound." N.T. Trial, 10/12/04, at 224. Counsel also cross-examined Officer Joseph Centeno, who testified that Nancy Halderman told him that at 7:00 p.m. on March 6, 2002, she saw a green minivan similar to the one in which the victims were shot.
Through cross-examination, counsel elicited testimony that Nancy Halderman saw a similar green van with two men in it at 7:00 and that she heard a popping sound sometime between 11:00 and 11:30 p.m. Under these circumstances, Klein cannot show a reasonable probability that the outcome of trial would have been different if Nancy Halderman had testified at trial. See Commonwealth v. Montalvo, 986 A.2d 84, 102-03 (Pa. 2009) (to demonstrate prejudice due to counsel's failure to call witness, defendant must show alternative strategy not selected by counsel offered substantially greater chance of success than strategy chosen).
Klein next argues that trial counsel was ineffective for failing to call Philadelphia Police Officer Craig Perry and Philadelphia Police Sergeant Patrick Lamond as witnesses. During an interview on March 7, 2002, Officer Perry stated that when he responded to a radio call about the incident on the 6400 block of Tulip Street, he noticed that the victim in the passenger's seat was wearing a red and white baseball cap. Klein asserts that this corroborates Nancy Halderman's statement identifying the passenger that she saw at 7:10 p.m. on March 6, 2002.
On March 7, 2002, Sergeant Lamond gave a statement in which he avers that he spoke with off-duty Police Officer Sharon Gross, who told him there had been increased activity at 6434 Tulip Street that may have been drug related. She also told him that at approximately 11:00 p.m. on March 6, 2002, she heard a female, whom she thought was her next door neighbor, Christine Murray, possibly scream, "No, " and "get in the house." Amended PCRA Petition, 7/8/11, Exhibit C. Sergeant Lamont further stated that Detective Centeno had told him that a man named Melvin had shot one of the victims on a previous occasion. In response to a request from Sergeant Lamont, Officer Gross told him that Christine Murray's boyfriend's name is David, but that David has a cousin named Melvin. Id.
Klein has failed to establish how the information contained in the statements of Officer Perry and Sergeant Lamond would have altered the verdict in this case. See Commonwealth v. Lark, 698 A.2d 43, 49 (Pa. 1997) (rejecting claim trial counsel was ineffective for not calling witnesses where defendant failed to demonstrate prejudice).
Klein also argues that counsel was ineffective for failing to present the testimony of Tulip Street neighbors Angela Prosper and Thomas Fitzgerald. In a neighbor survey completed by Philadelphia Police detectives, Prosper indicated that around midnight she heard two bangs, but the noise did not seem like gunshots. Amended PCRA Petition, 7/8/11, Exhibit E. Neighbor Thomas Fitzgerald told police that between 11:00 p.m. and 11:30 p.m., "he heard a few bangs." Id., Exhibit F. This evidence merely corroborates Officer Quartullo's testimony regarding the statements that Nancy Halderman made to him. Again, Klein fails to establish how this evidence would have changed the verdict in the case. See Lark, supra.
Klein also claims that trial counsel was ineffective for failing to present the testimony of Officer Gross. In addition to the statements that she made to Officer Lamond, supra, a police activity sheet dated March 7, 2002, states that Officer Gross indicated that she had an opportunity to see the bodies in the van and that the passenger looked like a male who "stops at 6526 Tulip Street, that is occupied by a white female, [Ms.] Murray." Klein argues that Officer Gross' statement "is important because it indicates that the victims had been seen in the neighborhood before." Amended PCRA Petition, 7/8/11, at 7. Nevertheless, he fails to explain how the failure to present this evidence prejudiced Klein to the point that he was denied a fair trial. See Wright, supra.
Furthermore, during cross-examination, trial counsel engaged in rigorous questioning of Foster with respect to possible inconsistencies between his statement to police and his trial testimony regarding the time he was with the victims at his home in New Jersey before the killings. On direct examination, Foster stated that he was with the victims behind his home at approximately 9:00 p.m. or 10:00 p.m. before the murders. N.T. Trial, 10/12/04, at 25. On cross-examination, trial counsel questioned Foster about his statement, dated March 19, 2002, in which he told police that he was with the victims at approximately 7:00 p.m. or 8:00 p.m. the night of the murders. Foster testified that he and the victims were together behind his home for a while. He stated that his meeting with the victims started at 7:00 or 8:00 p.m., the men stayed behind his house for a few hours talking, at approximately 9:30 p.m. to 10:00 p.m., they parted ways. Id. at 50-51.
For these reasons, trial counsel's failure to call neighborhood residents and certain police officers who investigated the crime scene does not entitle Klein to prevail on a claim of ineffective assistance of counsel. See Wright, supra.
Klein next argues that trial counsel was ineffective for failing to investigate and present Calvin Flowers as an alibi witness. Klein attached to his amended PCRA petition an affidavit from Flowers stating that Klein was with him in Irvington, New Jersey from 7:00 p.m. on March 6, 2004 until approximately 4:00 a.m. to 6:00 a.m. on March 7, 2004. The affidavit further states that after Klein's arrest, Flowers telephoned Klein's trial counsel, but counsel never contacted him. Amended PCRA Petition, 7/8/11, Exhibit J. The affidavit was not notarized.
At trial, the Commonwealth presented evidence that Klein told his friend, Ketkarun Boonsong, that he killed Jones and Jenkins. N.T. Trial, 10/12/04, at 170-71, 192-93, 207. The Commonwealth also presented evidence that Klein told Marrero that he killed them. Id. at 83-84. Marrero testified, "Klein told me that he shot Danny first and Dwight second . . . that he got into a car around the corner and drove off." Id. at 86-87.
Significantly, Klein had a motive to kill the victims because they kidnapped and beat him the week before. In light of this fact and his confessions to the victims' murders, he cannot show a reasonable probability that the outcome of his trial would have been different if only trial counsel had called Flowers as a witness. See Commonwealth v. Davis, 554 A.2d 104, 112 (Pa.Super. 1989) (trial counsel not ineffective for failing to produce alibi witness where, even if witness were presented, no reasonable likelihood exists verdict would have been more favorable to defendant).
Klein next asserts that trial counsel was ineffective for failing to object to evidence, argument and jury instructions regarding flight.
With respect to evidence, Foster testified that after receiving a phone call at approximately 6:00 a.m. on March 7, 2002, he and two friends headed to Philadelphia. Foster obtained directions to the crime scene and Marrero's home from a girl who had previous dealings with Marrero. N.T. Trial, 10/12/04, at 30. Foster crossed the Tacony Palmyra Bridge and arrived in Marrero's neighborhood at approximately 7:30 a.m. After driving around a couple of blocks, Foster saw Klein and Marrero's brother Stevie coming out of an alley. Foster made eye contact with Klein, after which Klein and Stevie Marrero started running back down the alley and into a door. Foster and his two friends then parked the car. As they were exiting, they saw Klein and Stevie run across the street and get into a gold Saturn, with Klein in the driver's seat. Foster and his friends followed Klein and Stevie. When the cars got to a red light, Klein looked at Foster through the rearview mirror and ran the red light. At this point, Foster lost Klein. Id. at 30-36, 43-48.
In light of the fact that Foster knew that Klein and the victims had been together the night of the murders, the fact that Klein fled from Foster when he saw him just blocks from where the murders occurred, is relevant evidence to establish Klein's consciousness of guilt. See Commonwealth v. Thompson, 739 A.2d 1023, 1028 (Pa. 1999) (evidence of flight following commission of crime relevant to show consciousness of guilt).
Klein next argues that trial counsel was ineffective for failing to pursue an objection to testimony by Detective Centeno that Marrero told him that he had taken Klein to Amtrak's 30th Street Station on September 18, 2002 for Klein to take a train to the West Coast using the alias Christopher Arevalo. N.T. Trial, 10/13/04, at 49-50; Amended PCRA Petition, 7/8/11, at 26. However, "certain out-of-court statements offered to explain the course of police conduct are admissible on the basis that they are offered not for the truth of the matter asserted, but rather to show the information upon which the police acted." Commonwealth v. Douglas, 737 A.2d 1188, 1195 (Pa. 1999).
Detective Centeno testified that as a result of receiving information from Marrero regarding Klein's planned departure to the West Coast and use of an alias, he obtained the itinerary of Klein's travel plans from the train station. Based on the itinerary, Detective Centeno obtained a warrant for Klein's arrest and turned the case over to the fugitive squad. Because the Detective's testimony was offered to show the course of conduct of the police in locating and apprehending Klein, it was admissible. Accordingly, trial counsel had no basis to object, and cannot be deemed ineffective. See Commonwealth v. Rios, 684 A.2d 1025, 1034 (Pa. 1996) (counsel cannot be found ineffective for failing to make meritless objections).
Klein next claims that the prosecutor committed misconduct when during closing argument she asserted that Klein displayed consciousness of guilt by running from the scene when he saw Foster and when he took a train to the West Coast under the alias Christopher Arevalo. Klein maintains that trial counsel was ineffective for failing to object.
A prosecutor's statements to the jury do not constitute reversible error unless the unavoidable effect would be to prejudice the jury, forming in their minds a fixed bias and hostility towards the defendant, such that they could not weigh the evidence and render a true verdict. Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002). Prosecutors are entitled to refer to the evidence, to argue all reasonable inferences therefrom, and to present their arguments with logical force, vigor and oratorical flair. Commonwealth v. Rollins, 738 A.2d 435, 445 (Pa. 1999).
Here, Judge Poserina instructed the jury that arguments of counsel were not evidence, and that it was the jury's recollection of the facts that was controlling. N.T. Trial, 10/14/04, at 8 ("Even though arguments do not constitute evidence, you should consider the arguments carefully." "It is your own recollection [of the evidence] that must guide you as you deliberate.") Instructions that the arguments of counsel are not evidence and that the jury is the finder of fact cure any improper prejudice that may have resulted from the prosecutor's comments. Commonwealth v. Robinson, 864 A.2d 460, 519 (Pa. 2004). Because the prosecutor's arguments were based on evidence adduced at trial, the challenged remarks were not improper. See Commonwealth v. Bishop, 742 A.2d 178, 187 (Pa.Super. 1999). Accordingly, counsel was not ineffective for failing to object.
Klein next argues that counsel was ineffective for failing to object to the trial court's flight charge on the basis that "the Commonwealth presented no admissible evidence to show that his travel to Las Vegas was unusual. Indeed, the trial evidence established that [Klein] frequently worked with [hip-hop group] the Wu Tang Clan, and that he went to Las Vegas to work with them." Amended PCRA Petition, 7/8/11, at 15.
A flight charge as evidence of consciousness of guilt is appropriate when a person commits a crime, knows that he is wanted, and flees or conceals himself. Commonwealth v. Hartey, 621 A.2d 1023, 1029 (Pa.Super. 1993). Direct evidence establishing a defendant's actual knowledge that he is being sought by the police for a particular crime is not required. "It is sufficient under this doctrine that the circumstances justify an inference that the accused['s] actions were motivated as a result of his belief that the officers were aware of his wrongdoing and were seeking him for that purpose." Commonwealth v. Jones, 319 A.2d 142, 150 (Pa. 1974); Commonwealth v. Gooding, 649 A.2d 722, 726 (Pa. 1974). Furthermore, "[u]se of an alias has been recognized as evidence of consciousness of guilt." Commonwealth v. Robinson, 721 A.2d 344, 352 (Pa. 1988).
Here the evidence established that Klein fled the scene after the murders upon seeing Foster, solicited Marrero's help in driving him to 30thStreet Station to take a train to the West Coast using an alias, and that he was later apprehended in Las Vegas by U.S. Marshalls. This evidence was sufficient to warrant a flight charge. See Commonwealth v. Miller, 721 A.2d 1121, 1125 (Pa.Super. 1988) (trial court may use flight/concealment jury charge when person commits crime, knows he is suspect, and conceals himself because such conduct is evidence of consciousness of guilt, which may form basis, along with other proof, from which guilt may be inferred). Judge Poserina specifically instructed the jury that flight or concealment does not necessarily show consciousness of guilt in every case, and that it could not find Klein guilty solely on the basis of evidence of flight or concealment. N.T. Trial, 10/14/04, at 93. Accordingly, counsel was not ineffective for failing to object to the court's flight instruction.
Klein next argues that trial counsel provided ineffective assistance when he failed to object to the prosecutor's improper argument regarding (1) the credibility of the Commonwealth's witnesses; (2) the evidence; and (3) Klein's character.
Klein claims that the prosecutor committed misconduct when she commented on the credibility of Foster and Marrero in her closing argument. He points to the prosecutor's remark that Foster "lied about that [shooting on Marrero's truck], I have no doubt, " id. at 61, and her remark that Marrero "lied through his teeth on the stand, I will be the first one to tell you that. He lied through his teeth." Id. at 72.
"Prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair." Commonwealth v. Hawkins, 701 A.2d 492, 503 (Pa. 1977). Here, it was reasonable to infer that Foster was not telling the truth when he denied his involvement in shooting at Marrero in New Jersey, which occurred while Foster was on probation.
The prosecutor's remark that Marrero "lied through his teeth" on the stand was based on evidence or proper inferences therefrom. Despite evidence that the victims had opened fire on Marrero in his truck, and that Jones and Marrero had an ongoing disagreement, Marrero testified that there was "no bad blood" between him and the victims. N.T. Trial, 10/12/04, at 63. Marrero also testified that, while he told police that he knew nothing about the victim's murders, he was forced to give a written statement to Philadelphia detectives on September 21, 2002, while in Gloucester County prison on a probation violation. At trial, Marrero testified that the seven-page statement did not contain his own words; that the police told him he was a suspect in a homicide; that he was not allowed to eat or call a lawyer during interrogation; and that the detectives posted "probation bail" for him in exchange for signing the statement. N.T. Trial, 10/12/04, at 63-68. Marrero also denied taking Klein to the train station and with being familiar with the name Christopher Arevalo. Id. at 100-01, 106, 109, 112-15.
To rebut Marrero's testimony, Detective John Cummings testified how police obtained the statement from Marrero, explaining that he wrote down word for word what Marrero said. The statement was voluntary, and at no time had Marrero indicated that he wanted to speak to his lawyer. They fed him pizza during the interview, and at no time did Detective Cummings tell Marrero that his bail would be posted if he gave a statement. Id. at 120-29.
Additionally, Detective Centeno testified that when he interviewed Marrero on September 22, 2004, Marrero told him that four days earlier he had taken Klein to 30th Street Station to take a train to the West Coast. Marrero told him the alias that Klein was using, and told police about the identification Klein had in his possession. Police later obtained an itinerary of these travel plans from the train station for an individual identified as Christopher Arevalo. Under these circumstances, it was not improper for the prosecutor to argue that Marrero was not truthful while testifying. See Commonwealth v. Ragan, 645 A.2d 811, 829 (Pa. 1994) ("a prosecutor's assertion that a witness had lied does not warrant a new trial when the statement was a fair inference from irrefutable evidence rather than a broad characterization").
Klein next asserts that the prosecutor improperly expressed her opinion when she stated, "And I guarantee you it was Danny Jones and Dwight Jenkins [who robbed Birdsong] because they wanted their money, " N.T. Trial, 10/14/04, at 62, and "I think it [the kidnapping] happened. I believe it happened. "I'm sure it happened. That's the way things are done . . . and I'm telling you they probably did tell him that they were going to kill you if you don't take us there. Hey, that's business." Id. at 63. Because these statements by the prosecutor were based on the evidence adduced at trial or inferences therefrom, they were not improper. See Commonwealth v. Washington, 927 A.2d 586, 613 (Pa. 2007) (rejecting defendant's claim prosecutor improperly expressed personal opinion where prosecutor's comments firmly based on evidence).
Klein also argues that the prosecutor's comments during closing argument characterizing the killings as "an execution, " N.T. Trial, 10/14/04, at 65, 79, were improper. However, because there was evidence at trial that Klein shot both victims in the back of their heads, Klein is not entitled to relief. See, Commonwealth v. Simpson, 754 A.2d 1264, 1278-79 (Pa. 2000) (prosecutor's argument that defendant and his co-conspirators executed victim reasonably based on record and did not prevent jury from fairly weighing evidence). Accordingly, there is no arguable merit to Klein's claim that trial counsel erred by failing to object to the prosecutor's comments.
Klein next argues that trial counsel was ineffective for failing to request jury instructions on witness credibility and other crimes evidence. Specifically Klein argues that the trial court should have instructed the jury that the fact that Marrero and Foster were both in custody and had open charges or were on parole at the time of their statements and/or testimony, might bias then in favor of the Commonwealth.
"It is axiomatic that a jury charge must be read in its entirety to determine whether it is fair or prejudicial and that the trial court has broad discretion in phrasing its instructions so long as the law is clearly, adequately, and accurately presented to the jury." Commonwealth v. Miller, 746 A.2d 592, 604 (Pa. 2000) (citation omitted). So long as the instruction clearly and adequately represent the law, no relief is due. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).
Judge Poserina's instruction to the jury regarding the weight to accord the testimony of each witness included the following:
You must consider and weight the testimony of each witness and give it the weight that you think in your own judgment it is fairly entitled to receive. This is sometimes referred to as the credibility of a witness, that is, whether or not the testimony is believable and accurate in whole or in part. That is solely for you as a jury to determine.
Now, some of the factors that might bear on how you make that judgment are as follows: Think about whether the witness has any interest in the outcome of the case. Think about whether the witness had a friendship for or animosity toward other persons in the case.
You observed the witness on the stand. What was that person's demeanor, the manner in which that person testified? Whether or not the witness showed any bias which might somehow color his or her testimony.
Think about whether the witness was consistent or inconsistent. Think about whether you think the witness was reasonable or unreasonable in light of all the other evidence in the case.
If you believe part of the testimony of a witness to be inaccurate, then consider whether that inaccuracy casts a doubt on the rest of that person's testimony.
N.T. 10/14/02, at 84-86.
In Commonwealth v. Thompson, 739 A.2d 1023 (Pa. 1999), our Supreme Court recognized that "[t]he jury should have been instructed that it could also use . . . pending criminal charges to determine whether [a witness] had a potential bias in aiding the Commonwealth in establishing its case." Id. at 1031. However, the Supreme Court did not grant relief to Thompson because it concluded that he failed to establish prejudice.
Here, the trial judge instructed the jury that in considering the credibility of a witness, it should consider whether a witness had an interest in the outcome of the case or showed any bias that may color his testimony.
Furthermore, during cross-examination, trial counsel impeached the credibility of Marrero by questioning him about his current incarceration in state prison in New Jersey and impeached Foster by questioning him about his current probationary status. Based on these facts, Klein has not established prejudice. See Commonwealth v. Harris, 852 A.2d 1168 (Pa. 2004) (where jury made aware of possibility witness agreed to testify to receive favorable treatment from Commonwealth, and court's general charge thoroughly instructed jury to consider possibility of bias in evaluating credibility, defendant failed to show prejudice due to counsel's failure to request specific instruction explaining significance of witness's criminal record as it related to his credibility).
Klein next argues that because there was evidence that he was involved in at least one specific drug transaction and was involved in other criminal conduct, trial counsel had no reasonable basis for failing to request an instruction limiting other acts evidence. In Commonwealth v. Billa, 555 A.2d 835 (Pa. 1999), a first-degree murder case, our Supreme Court found counsel ineffective for failing to request a limiting instruction on the use of a prior sexual assault by the defendant. Because the evidence was "extensive and inflammatory, " id. at 843, the Court determined the defendant was prejudiced by counsel's failure to make the request.
It is well settled that if a defendant fails to demonstrate that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed at the outset and the court need not first determine whether the first and second prongs of the ineffectiveness test have been met. Commonwealth v. Rainey, 928 A.2d 215, 233 (Pa. 2007). In his brief, Klein does not argue how he was prejudiced, and accordingly we afford him no further review.
Klein next argues that counsel was ineffective for failing to request a corrupt source instruction with respect to either Foster or Marrero. A corrupt source instruction advises the jury that if it finds that a witness who testified against the defendant was an accomplice of the defendant in a crime for which he is being tried, then the jury should consider him a corrupt and polluted source whose testimony should be considered with caution. Commonwealth v. Collins, 957 A.2d 237, 262 (Pa. 2008) (citation omitted). Accomplice liability requires that the witness intended to aid or promote the substantive offense, and actively participated in that offense by soliciting, aiding, or agreeing to aid the principal. Id. at 263.
In this case, there was no evidence from which it could be inferred that Foster or Marrero were accomplices to the victim's murders. In his Amended Petition, Klein asserts that the evidence at trial implicated Foster in the overall scheme to rob Marrero's home. Amended PCRA Petition, 7/8/11, at 23. He points to no evidence that Foster was involved in the killing of the victims.
Klein further asserts that Marrero was an accomplice because Jones' girlfriend, Catherine Johnson, hypothesized in her statement to police that Marrero had paid someone to kill the victims because they were extorting him; that Marrero had motive to kill the victims who had shot up his truck; that Marrero knew the details of the murders; that Marrero had forgiven Klein's debt; and that Marrero had helped Klein flee to Las Vegas. Id. at 24. None of this is evidence that Marrero intended to aid or promote the victim's murders and actively participated in the offense by soliciting, aiding, or agreeing to aid Klein. Accordingly, there was no basis for an accomplice liability instruction with respect to either Foster or Marrero. See Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999) (accomplice liability instruction not warranted where no evidence presented from which jury could have reasonably inferred witness was accomplice; counsel not ineffective for failing to request such instruction; counsel not ineffective for failing to pursues meritless claim).
Furthermore, trial counsel had a reasonable basis for not requesting an accomplice liability charge because it would have implicated Klein in the crime. As counsel had a reasonable basis for not requesting an accomplice liability/corrupt source instruction, he cannot be deemed ineffective. "If a reasonable basis exists for the particular course chosen by counsel, the inquiry ends and counsel's performance is deemed constitutionally effective." Commonwealth v. Abdul-Salaam, 808 A.2d 558, 561 (Pa. 2001).
At the conclusion of trial, Judge Poserina instructed the jury as follows:
You heard testimony at trial from two witnesses. Melvin Marrero and Ketkarun Boonsong. It is known as impeachment or inconsistent statements. When you hear testimony of a witness that the witness made a statement on one occasion that's different than the occasion that he is now testifying to, or which was made on a separate occasion, you have two alternatives. You may, if you choose regard the evidence of proof of the truth of anything the witness said in the earlier statement. You may also consider the evidence to help you judge the credibility and weight of the testimony given by the witness as this trial.
N.T. 10/14/04, at 93-94.
In addition to Marrero and Boonsong, Commonwealth witness Catherine Johnson (the girlfriend of victim Danny Jones), was also impeached with prior inconsistent statements. Klein asserts that trial counsel's failure to object to Judge Poserina's omission of Johnson's name when instructing the jury about prior inconsistent statements constitutes ineffective assistance. He argues that if Johnson's name had been included, the jury could have viewed as substantive evidence the following information from Johnson's March 14, 2002 statement to the police: (1) Jones created and acted on a plan to extort monthly protection money from Marrero, N.T. Trial, 10/12/14, at 145-53; and (2) Marrero paid money to some Jamaicans to kill the victims, id. at 153-54. He suggests that this information undercuts the Commonwealth's theory of the case and indicates that someone else committed the murders.
As previously noted, if it is clear that the prejudice prong has not been met, the court may dismiss the claim on that basis alone without discussing the first and second prongs of the test. See Rainey, supra. In light of the fact that the jury heard Johnson's prior inconsistent statements and received instructions regarding how to consider such statements, Klein has failed to establish that he was prejudiced by counsel's failure to object to the court's omission of Johnson's name when instructing the jury.
Klein next argues that the PCRA court erred by dismissing his petition without a hearing. However, when reviewing a PCRA court's decision to dismiss a petition without a hearing we apply an abuse of discretion standard. Commonwealth v. Rush, 838 A.2d 651, 659 (Pa. 2003). Upon thorough review of all issues raised by Klein in his petition, we agree with the PCRA court's determination that all claims could be adequately reviewed based on the existing record, and therefore find no abuse of discretion.
For these reasons, we affirm the decision of the PCRA court denying relief to Klein.
BOWES, J., concurs in the result.