Argued March 17, 2015
[Copyrighted Material Omitted]
Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s). CP-51-CR-0200061-2002. Before KANE, J.
Michael J. Malloy, Media, for appellant.
Anne F. Palmer, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: BOWES, DONOHUE, AND STABILE, JJ.
Robert Barnett appeals nunc pro tunc from the judgment of sentence of life imprisonment after a jury found him guilty of first-degree murder, robbery, burglary, conspiracy, and carrying a firearm without a license. In addition to being sentenced to life imprisonment, the Court sentenced Appellant to five to ten years for criminal conspiracy and three and one-half to seven years on the firearms count. This case returns to this Court after our Supreme Court remanded the matter to the trial court following its decision in Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (Pa. 2013). Upon review, we affirm.
The trial court delineated the following relevant facts.
On the afternoon of September 8, 2001, 84 year old Harry Renner was working in the upstairs office of his restaurant located at 4120 Main Street in Manayunk neighborhood of Philadelphia. As Mr. Renner sat working at his desk, [A]ppellant and his son entered the office,
threw a blanket over Mr. Renner's head and ordered him at gunpoint to open the office's safe. Mr. Renner complied and [A]ppellant and his son took the thousands of dollars of cash proceeds from the previous night's business that was in the safe. Appellant then shot the elderly victim in the head, killing him.
Prior to the crime, [A]ppellant had asked his friend Craig Walker to participate as the getaway driver, but Walker refused. When Walker saw the story of the robbery and murder on the evening news, he immediately recognized it as the crime [A]ppellant had invited him to join him in committing. Then, on September 10, 2001, both [A]ppellant and his son drove new cars to Walker's home where [A]ppellant bragged about robbery. Walker said that [A]ppellant glared at his son when the son scolded [A]ppellant that he didn't have to shoot the victim. Mr. Walker saw [A]ppellant a few more times in the area during the next few days, carrying a lot of cash and handing out money to a crowd of people. Appellant also bragged about the crime to his girlfriend, Gail Alvin. Gail Alvin later told police that she accompanied [A]ppellant and his son to a car dealership when they purchased the new vehicles. When she asked where they had gotten the money from for the cars, [A]ppellant bragged about having committed a robbery in Manayunk.
On October 15, 2001, when police attempted to stop [A]ppellant for disregarding a stop sign, [A]ppellant sped off, went through traffic signals and finally stopped on the sidewalk. Appellant then fled on foot and struggled with police as they apprehended him. Police recovered thirteen $100.00 bills from [A]ppellant's person. Appellant later gave a voluntary statement to police in which he admitted his participation in the crimes. Additionally, while [A]ppellant was incarcerated awaiting trial, a fellow inmate, Ernest Johnson, heard [A]ppellant tell another inmate that he had to shoot Mr. Renner because he had seen [A]ppellant's face, and that [A]ppellant planned to blame his son for everything.
Trial Court Opinion, 6/22/09, at 2-3.
Following the imposition of his sentence, Appellant, represented by trial counsel, filed a timely direct appeal. However, due to an insufficient brief, this Court determined that all of Appellant's issues were waived. Accordingly, Appellant sought post-conviction relief via the Post-Conviction Relief Act (" PCRA" ). In his PCRA petition, Appellant raised various claims of ineffective assistance of counsel and also sought the reinstatement of his direct appeal rights nunc pro tunc. The PCRA court conducted an evidentiary hearing where both Appellant and his trial attorney testified. The court denied Appellant's petition on the merits.
Appellant appealed, and this Court reversed solely as to the denial of Appellant's direct appeal rights. Thus, Appellant's direct appeal rights were reinstated. This Court did not address Appellant's remaining ineffective assistance of counsel claims. In Appellant's reinstated direct appeal, he raised only ineffective assistance of counsel issues. This Court, in a published en banc decision, determined that Appellant's ineffectiveness claims could not be addressed during his reinstated direct appeal. Commonwealth v. Barnett, 2011 PA Super 147, 25 A.3d 371 (Pa.Super. 2011) ( en banc ), vacated by 624 Pa. 230, 84 A.3d 1060 (Pa. 2014). The Pennsylvania Supreme Court vacated that order and remanded the case to the PCRA court after its decision in Holmes, supra.
The Holmes Court held, in pertinent part, that ineffectiveness claims cannot be addressed on direct appeal absent a waiver of PCRA rights. It determined that where good cause is shown, and a defendant waives PCRA review, ineffectiveness claims may be addressed on direct appeal. Thereafter, the PCRA court conducted a waiver colloquy and Appellant, with the agreement of the Commonwealth, waived his right to PCRA review. The matter is now ready for this Court's review. Appellant raises the following issues on appeal.
1. Trial Counsel and Appellate Counsel rendered ineffective assistance of Counsel for failing to properly preserve and file for appeal issues raised at trial regarding a) evidence of Appellant's flight from an unrelated incident as evidence of Appellant's guilt in the instant case; b) introduction of evidence of money seized from the defendant in an unrelated incident as evidence of " sudden wealth" of the Defendant from the instant case; c) the introduction of testimony and evidence of Appellant's arrest for a crime unrelated to the criminal charge for which he was on trial.
2. Trial Counsel was ineffective for failing to request an instruction that the charges which gave rise to the evidence of the defendant's flight and moneys found on the defendant were unrelated to the charge for which he was on trial [and] were dismissed for lack of prosecution;
3. That trial Counsel was ineffective in failing to object to the Commonwealth's closing argument where the prosecution argued that it need not prove a specific intent to kill in order to be found Guilty of Murder in the First Degree and was ineffective in failing to object to the trial Court's instruction that Appellant could be found Guilty of Murder in the First Degree on the acts, circumstantial or direct of an accomplice, co-conspirator thereby instructing the jury that the Commonwealth did not need to prove a specific intent to kill by appellant to be found Guilty of Murder in the First Degree.
4. That trial counsel was ineffective for failure to object to the introduction to or preserve for appeal and file for appeal in the introduction of the testimony of Craig Walker of the testimonial statement of Defendant's son/co-Defendant Robert Barnett, Jr. that " you didn't have to shoot him" ;
5. That trial counsel failed to properly preserve or file an appeal to the introduction of unrelated criminal actions and/or prejudicial testimony relating to the Appellant that related to an Office Max Robbery in the Plymouth Meeting Mall and a composite sketch pursuant to the defendant and the defendant's son;
6. That trial Counsel failed to fully and properly advise Appellant regarding his right to testify at trial and therefore the Appellant's decision not to testify was not fully knowing, involuntary [sic] or intelligent including but not limited to being ineffective for failing to investigate defendant's access to cash money on Appellant's
behalf that would have rebutted the prosecution's theory of " sudden wealth" .
Appellant's brief at 4 (inconsistent capitalization in original).
Appellant's issues are premised on ineffective assistance of counsel. " To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act." Commonwealth v. Stewart, 2013 PA Super 317, 84 A.3d 701, 706 (Pa.Super. 2013) ( en banc ). The failure to meet any of these aspects of the ineffectiveness test results in the claim failing. Id.
Arguable merit exists when the factual statements are accurate and " could establish cause for relief." Id. at 707. Whether the " facts rise to the level of arguable merit is a legal determination." Id. In considering whether counsel acted reasonably, we look to " whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success." Id. " Counsel's decisions will be considered reasonable if they effectuated his client's interests. We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken." Id. (citations omitted). Lastly, prejudice exists where " there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. This probability is sufficient when it " undermines confidence in the outcome of the proceeding." Id. Counsel is presumed to have rendered constitutionally effective representation. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
Appellant's initial claim is actually three separate issues. First, Appellant asserts that counsel erred in failing to object to the admission of evidence of Appellant's flight from an unrelated incident, i.e., his arrest for possession of cocaine. Next, he avers that trial counsel rendered ineffective assistance in allowing into evidence money that was seized from that arrest. Lastly, Appellant posits that trial counsel was ineffective because he did not object to the introduction of Appellant's arrest for another criminal charge.
With respect to Appellant's first argument, trial counsel did file a motion in limine seeking to preclude the Commonwealth from introducing evidence from Appellant's arrest on October 16, 2001. At that time, Appellant was operating a stolen vehicle and in possession of drugs. When police attempted to pull him over after he ran a stop sign, he fled in his car and then on foot. Police captured him and recovered $1300 in his pocket. Appellant maintained that the evidence of the arrest and flight therefrom should be precluded because it was unrelated to the charges in this case.
The trial court granted Appellant's motion in part. Specifically, it precluded the Commonwealth from introducing evidence that the car was stolen, and that Appellant possessed drugs and made a throwing motion during his flight. However, the court permitted the Commonwealth to introduce the fact that ...