Commonwealth v. Gamble

258 A.3d 505 (Table)

COMMONWEALTH of Pennsylvania, Appellee

v.Tyre GAMBLE, Appellant

No. 2944 EDA 2019

Superior Court of Pennsylvania.

Filed June 8, 2021

MEMORANDUM BY SHOGAN, J.

Appellant, Tyre Gamble, appeals from the September 18, 2019 order dismissing, without a hearing, his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 – 9546. After review, we affirm.

Following a several-day jury trial beginning on November 14, 2005, the jury convicted Appellant on November 21, 2005, of first-degree murder, intimidation of a witness, and possessing instruments of crime ("PIC").¹ A prior panel of this Court summarized the relevant facts as follows:

[Appellant's] conviction arises out of an April 2004 shooting incident in [W]est Philadelphia following a verbal exchange with victim Taj Chavis. While [walking with Rasan Davis] and holding an automatic handgun behind his back, [Appellant] approached Chavis at the corner of 33rd and Wallace Streets[,] and the two began to quarrel. Following Chavis's challenge, ("You [sic ] acting like you [sic ] gonna do something"), [Appellant] pulled the gun from behind his back and shot Chavis in the chest. As Chavis lay bleeding on the sidewalk, [Appellant] fired a second shot into [Chavis's] head and then fled the scene. [Appellant] was then nineteen years old and [Chavis was] somewhat younger.

Prior to the shooting, as [Appellant] and [Chavis] exchanged words, ten[-]year[-]old G.B. ventured up the street with his brother and cousin as the three walked home from school. Upon seeing them, [Appellant] directed the boys to the other side of the street, where they witnessed the subsequent killing. Distraught, G.B. ran several doors down the street to the home of his grandmother, Barbara Williams, and upon entering, told his mother, Zakia Williams, "Mom, I seen the whole thing. I seen the whole thing." After calming her son, Zakia Williams left the house and went to the scene of the crime, where Philadelphia Police officers had by then converged. As she walked past, she threw a folded piece of paper to the ground before Officer Margarita Wilcox. Written on the paper was a note stating[,] "Everything you need to know is on this piece of paper," and "Tarie (shooter)." Officer Wilcox then gave the note to the investigating detective, who attached it to his report.

Police did not immediately apprehend [Appellant,] and he remained at large in the surrounding area during the investigation. In the intervening time, word circulated in the neighborhood that [Appellant] had killed ... Chavis, prompting [Appellant] to telephone the home of Barbara Williams in search of her daughter Zakia Williams, the mother of G.B. Although [Appellant] did not identify himself, his name and number appeared on Barbara's caller ID unit[,] and Barbara recognized the caller's voice. When [Appellant] asked for Zakia, Barbara told him that Zakia did not live there, to which [Appellant] asked[,] "Well, why does she keep pointing me out?" [Appellant] then clarified that he meant[,] "Telling people that I killed that boy." After Barbara told him, "the whole neighborhood is saying that you killed him," [Appellant] concluded the conversation with a warning, saying[,] "Tell Zakia to stop putting my name in. Tell her to stop putting my name in her mouth or she [sic ] going to get f---d up."

Following [Appellant's] apprehension, the Commonwealth charged him with the homicide and PIC offenses at issue as well as several firearms offenses, which the trial court ultimately nol [ ] prossed . The Commonwealth added the further charge of witness intimidation in view of [Appellant's] "warning" to Barbara Williams concerning her daughter's discussion of the killing. Thereafter, in November 2005, [Appellant's] case proceeded to a jury trial before the Honorable Renee Cardwell Hughes. During the presentation of its case in chief, the Commonwealth presented[, inter alia ,] the testimony of the victim's father, Alvin Chavis, to establish a "life in being," as well as the testimony of [Rasan Davis, who identified Appellant as the shooter,] Zakia Williams and G.B. concerning G.B.’s account of the shooting, and Barbara Williams concerning [Appellant's] remarks threatening her daughter. The Commonwealth also presented the testimony of Ronald Saunders, who identified himself as [Appellant's] friend. Although Saunders had given a statement to the police implicating [Appellant], he professed at trial not to remember the contents of that statement, prompting the prosecutor to read from the statement in an attempt to refresh the witness's recollection. Finally, the Commonwealth presented the testimony of Mercedes Bradshaw, a [sixteen-year-old] resident of the neighborhood who saw [Appellant] fire the second shot as the victim lay on the ground.

[Appellant] elected not to testify and presented no other evidence, following which the jury returned a verdict of guilty.... [T]he court sentenced [Appellant] to concurrent prison terms of three and one[-]half to seven years[ ] for witness intimidation and two and one half to five years[ ] for PIC to be served consecutive to life imprisonment for first-degree murder.

Commonwealth v. Gamble , 947 A.2d 824, 281 EDA 2006 (Pa. Super. filed January 22, 2008) (unpublished memorandum at *2–4). This Court affirmed Appellant's judgment of sentence, and our Supreme Court declined further review on September 30, 2008. Id. (unpublished memorandum at *2), appeal denied , 958 A.2d 1046, 78 EAL 2008 (Pa. filed September 30, 2008).

On February 11, 2009, Appellant pro se filed a timely PCRA petition ("2009 Petition").² The PCRA court appointed counsel, Attorney Marc Antony Arrigo, who subsequently filed a Turner/Finley³ no-merit letter on June 18, 2010.⁴ Therein, Attorney Arrigo summarized the claims Appellant wished to raise: (1) ineffective assistance of trial counsel for failing to file a direct appeal, causing Appellant to retain private appellate counsel who was unfamiliar with his trial, thus rendering appellate counsel ineffective; and (2) the Commonwealth's failure to inform Appellant of the specific degree of murder it was prosecuting, which prejudiced Appellant's defense, denied him a fair and impartial trial, and caused trial counsel to be ineffective and the trial court to lack jurisdiction over his case. Turner/Finley Letter, 6/18/10, at 3-4.

On April 19, 2011, the PCRA court entered a notice of intent to dismiss the 2009 petition without a hearing pursuant to Pa.R.Crim.P. 907, followed by Attorney Arrigo's filing of a motion to withdraw as counsel. Appellant filed a pro se response on May 12, 2011. In July 2011, a signed but undated order appears in the certified record, dismissing the 2009 Petition and permitting Attorney Arrigo to withdraw ("July 2011 Order"). As discussed more fully infra , no appeal was taken from the July 2011 Order, presumably because it was not docketed, and there is no indication in the record that it was served upon the parties.

For reasons that are unclear, the PCRA court issued another Rule 907 notice years later on April 10, 2017.⁵ Shortly thereafter, Appellant retained private PCRA counsel, Attorney Teri B. Himebaugh, who continues to represent Appellant in the instant appeal. Attorney Himebaugh entered her appearance, along with a motion for leave to file an amended PCRA petition on April 29, 2017. Although the PCRA court did not rule on the motion, Attorney Himebaugh filed an amended PCRA petition on behalf of Appellant on November 19, 2017 ("2017 Amended Petition"). Therein, Appellant claimed constitutional violations based on the lack of notes of testimony from the trial and trial counsel's failure to object to the trial court's reasonable-doubt jury instruction. See generally 2017 Amended Petition, 11/19/17. Once Attorney Himebaugh requested and received transcripts, Appellant filed a second amended PCRA petition on February 19, 2019 ("2019 Second Amended Petition"). The 2019 Second Amended Petition raised three claims relating to the ineffectiveness of trial counsel for failing to object or to object properly at trial, which are at issue in the current appeal. 2019 Second Amended Petition, 2/19/19, at 5-24. The Commonwealth responded by filing a motion to dismiss on May 31, 2019, contending that Appellant's 2009 Petition and 2019 Second Amended Petition had no merit. The PCRA court issued a Rule 907 notice on August 20, 2019, to which Appellant did not respond. On September 18, 2019, the PCRA court dismissed Appellant's petition as meritless. This timely-filed appeal followed. Both Appellant and the PCRA court complied with Pennsylvania Rule of Appellate Procedure 1925.

On appeal, Appellant raises the following issues:

I. Did the PCRA Court err in finding that trial counsel was not ineffective when he failed to object to an unconstitutional reasonable doubt jury instruction, violating his Fourteenth Amendment due process rights?

II. Did the PCRA Court err in finding that trial counsel was not ineffective for failing to assert the correct objection to portions of the prosecutor's closing argument?

III. Did the PCRA Court err when it found that trial counsel was not ineffective for failing to make a timely and proper hearsay objection to Ronald Saunders’ testimony thereby waiving the claim for trial court and appellate review?

Appellant's Brief at 3.

Before we proceed to the merits of Appellant's appeal, we must consider which PCRA petitions are properly before us because such determination impacts our jurisdiction. The claims at issue on appeal were raised in the 2019 Second Amended Petition. The PCRA court and the parties treated the 2009 Petition as still pending and assumed the 2019 Second Amended Petition amended the 2009 Petition. Despite their assumption, the certified record contains the July 2011 Order, which, as noted supra , purported to dismiss the 2009 Petition.

"Appellate jurisdiction cannot be conferred by mere agreement or silence of the...