J-A04029-18

                                   2018 PA Super 186

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW SCOTT BECKER                       :
                                               :   No. 784 MDA 2017
                       Appellant

                   Appeal from the PCRA Order April 11, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0004681-2011


BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*

OPINION BY NICHOLS, J.:                                   FILED JUNE 26, 2018

        Appellant Matthew Scott Becker appeals from the order denying his first

Post Conviction Relief Act1 (PCRA) petition seeking relief from his convictions

for first-degree murder and third-degree murder of an unborn child.2

Appellant claims that the PCRA court erred in rejecting his ineffective

assistance of counsel (IAC) claims. We affirm.

        Appellant’s conviction arises from the shooting death of his pregnant

girlfriend, Allison Walsh (Walsh), in the evening of August 12, 2011. Earlier

that day, Appellant purchased the firearm used in the shooting, a

semiautomatic .22 caliber pistol. The shooting occurred inside the bedroom


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. §§ 2502(a) and 2604(c), respectively.
J-A04029-18



Appellant and Walsh were sharing in the home of Appellant’s parents. Walsh,

who was lying in bed, died instantly from a single .22 caliber gunshot wound

to her head. Appellant’s and Walsh’s unborn child died later from traumatic

asphyxiation.

        First responders arrived and asked Appellant for the gun.          Appellant

ultimately retrieved it from underneath the bed. The weapon did not have a

magazine inserted. However, when a first responder pulled back on the slide,

an unfired cartridge came out of the handle of the pistol.

        Appellant gave two statements to Pennsylvania State Police (PSP)

investigators in charge of the case.3          Appellant, shortly after the shooting,

gave his first statement in the early morning hours of August 13, 2011, after

waiving his Miranda4 rights. Appellant asserted that he intended to clean the

.22 caliber pistol, but did not know a round was chambered. According to

Appellant, he loaded the pistol and began ejecting unfired cartridges from the

magazine by operating the pistol’s slide. He then removed the magazine from

the gun and was attempting to ease the hammer down with his thumb when

the weapon accidentally discharged. Appellant also indicated that at some

point in the evening, Walsh began to ignore him and read her book, and that




____________________________________________


3 The certified record in this appeal does not contain a full recording or copy
of Appellant’s statements. Therefore, the above summary derives from a
review of the testimony presented at trial.

4   Miranda v. Arizona, 384 U.S. 436 (1966).

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he intended to “devil” her, which he clarified, meant to make her talk to him

instead of reading her book.

       After Appellant gave his first statement, Appellant was involuntarily

committed to a mental health institution for suicidal thoughts based on

statements made to the investigator.             The investigation into the shooting

continued while Appellant was committed.             In addition to the one unfired

cartridge recovered from the firearm on the night of the incident, one fired

.22 caliber casing and a magazine loaded with eight rounds were found in the

room in which the shooting occurred. One unfired .22 cartridge was found on

an armchair in the same room. A box of .22 caliber ammunition, which was

missing eleven cartridges, was near the armchair.

       Investigators also received information that the safety features of the

pistol should have prevented it from firing if the magazine was removed and

the shooter did not have a full grip on the handle. Additionally, Appellant’s

former girlfriend Danielle Detweiler and her sister Devon Detweiler contacted

the investigators.      The Detweilers described incidents in which Appellant

pointed a firearm at Danielle and shot her with a gun that shot plastic “airsoft”5

pellets.


____________________________________________


5 The record does not conclusively establish what an “airsoft” gun is, but
suggests that this type of gun fires a plastic pellet. Additionally, trial counsel
elicited concessions from the Commonwealth’s witnesses that “airsoft” guns
were sold at toy or department stores. There was also evidence that “airsoft”
guns have an orange plastic tip on the barrel.


                                           -3-
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      Investigators subsequently asked Appellant to be re-interviewed, and

Appellant agreed. On August 18, 2011, Appellant’s father drove Appellant to

the PSP barracks. Appellant was advised of his Miranda rights and gave a

second statement.      During this second interview, investigators confronted

Appellant with information that the pistol’s safety features should have

prevented the accidental discharge. Appellant continued to assert that the

weapon accidentally fired, stating it was “dumb fuck luck.” N.T. Trial, 3/7/13,

at 2538. However, he acknowledged that he could have placed the magazine

into the weapon to release the hammer. Appellant also admitted that he and

Walsh had arguments and that, in one instance, she became afraid because

he either was holding a firearm or there was a firearm near him. He also

acknowledged that people could be cruel when they get angry.

      While Appellant was giving his second statement on August 18, 2011,

Appellant’s family retained Robert Bacher, Esq., to represent Appellant.

Attorney Bacher attempted to see Appellant at the PSP barracks while

Appellant was being interviewed.      However, troopers prevented Attorney

Bacher from contacting Appellant.

      Appellant was charged with homicide and murder of an unborn child,

and the Commonwealth sought the death penalty. Appellant retained Dennis

G. Charles, Esq., and Gavin P. Holihan, Esq. was appointed as co-counsel

(collectively, trial counsel).

      Appellant filed an omnibus pretrial motion on May 30, 2012. Appellant

sought to suppress his statements to the PSP investigators claiming that he

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“did not knowingly, intelligently, voluntarily and/or explicitly waive his

Miranda rights[.]” Omnibus Pretrial Mot. for Relief, 5/30/12, at 4.

         The trial court held suppression hearings on August 15 and 16, 2012.

The trial court entered an order denying Appellant’s suppression motion on

January 11, 2013. The trial court found that Appellant was not in custody

during the first or second interviews and did not invoke his right to silence

during the second interview.       Trial Ct. Mem. Op. & Order, 1/11/13, at 3

(unpaginated).

         At trial, the Commonwealth asserted that Appellant shot Walsh with the

specific intent to kill her.   Of relevance to this appeal, the Commonwealth

elicited testimony from PSP Corporal Robert Courtright that Appellant

appeared to offer his first statement voluntarily.        The jury heard an audio

recording of Appellant’s first statement and both the Commonwealth and the

defense questioned Corporal Courtright using transcriptions of Appellant’s

second statement.

         The Commonwealth also presented the following evidence of Appellant’s

prior bad acts: (1) testimony from his former girlfriend Danielle Detweiler that

Appellant previously pointed a firearm at her and shot her with an “airsoft”

pellet    gun   when   they    dated;   (2)   testimony   from   Devon   Detweiler

corroborating Danielle’s testimony; (3) testimony from Gregory Miller,

Appellant’s friend, that Appellant verbally abused and threatened Walsh with

violence in 2011; and (4) a July 2011 Facebook exchange between Walsh and




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her sister Megan stating that Walsh wanted to leave Appellant, but Walsh was

fearful of Appellant’s reaction and believed Appellant would pull a gun on her.

      Appellant did not testify, but called his parents to testify about their

observations on the night of the shooting. Appellant also called a PSP trooper

to testify about favorable statements Appellant made during his two

interviews.

      During closing arguments, the Commonwealth asserted that the

objective evidence belied Appellant’s statements regarding the facts and

circumstances surrounding the shooting and that Appellant changed his story

when confronted with evidence during the second interview. According to the

Commonwealth, Appellant’s prior bad acts indicated that when he became

angry, he would brandish firearms or shoot “airsoft” guns. N.T. Trial, 3/11/13,

at 2931. The Commonwealth argued that Appellant, in his second statement,

indicated that he could become cruel when he was angry.          In short, the

Commonwealth emphasized that Appellant, having deliberately shot Walsh in

the head during a dispute, “lied” in an attempt to cover up the murder. See

N.T. Trial, 3/11/13, at 2936-37.

      On March 13, 2013, the jury found Appellant guilty of first-degree

murder and murder of an unborn child.        The jury deadlocked during the

penalty phase, and on March 28, 2013, the trial court sentenced Appellant to

life imprisonment for murder and a consecutive twenty to forty years’

imprisonment for the murder of an unborn child.




                                     -6-
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      Appellant took a direct appeal.   This Court affirmed the judgment of

sentence on March 11, 2015. Commonwealth v. Becker, 1801 MDA 2013

(Pa. Super. filed Mar. 11, 2015) (unpublished mem.).

      In affirming Appellant’s conviction, this Court adopted the trial court’s

opinion that Appellant voluntarily waived his Miranda rights at the second

interview. Id. at 1-2; see also Trial Ct. Mem. Op. & Order, 1/11/13, at 3

(unpaginated).    This Court also concluded that the trial court properly

admitted Danielle and Devon Detweilier’s prior bad acts testimony that

Appellant previously brandished a firearm and shot Danielle Detweiler with an

“airsoft” gun, as well as Miller’s testimony regarding Appellant’s relationship

with Walsh. Specifically, we concluded those matters were “probative to the

issue of accident and mistake and degree of guilt in this case” and rebutted

Appellant’s “characterization of the relationship [with Walsh] and the

shooting.” Becker, 1801 MDA 2013, at 6, 8.

      However, this Court questioned the admissibility of Walsh’s Facebook

message to her sister under the state of mind exception to the rule against

hearsay. Id. at 9-14. Nevertheless, we determined that the admission of the

message was harmless in light of the overwhelming evidence of Appellant’s

guilt. Id. at 13-14. This Court, in particular, emphasized that there was a

live round in the gun after it was fired, which refuted Appellant’s contention

that he believed the gun was unloaded when he attempted to ease the




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hammer to a safe position. Id. Appellant did not seek allowance of appeal in

the Pennsylvania Supreme Court.6

       On April 6, 2016, Appellant timely filed the counseled PCRA petition

giving rise to this appeal. The PCRA court held an evidentiary hearing at which

both trial counsel testified. Appellant also called Attorney Bacher to testify

regarding his attempt to see Appellant during Appellant’s second interview

with investigators on August 18, 2011.

       On April 11, 2017, the PCRA court entered the order denying Appellant’s

PCRA petition. Appellant timely appealed and complied with the trial court’s

order for a Pa.R.A.P. 1925(b) statement.

       Appellant presents the following questions on appeal:

       1. Whether trial counsel was ineffective for failing to raise and
          litigate a pre-trial motion to suppress based upon an invalid
          Miranda waiver where counsel was denied access to
          [Appellant] and he was denied access to his lawyer during the
          police interrogation?

       2. Whether trial counsel was ineffective for failing to call Attorney
          Bacher at both the suppression hearing and at trial?

       3. Whether trial counsel was ineffective for failing to object to Cpl.
          Courtright’s testimony when he gave an improper legal opinion
          that [Appellant’s] confession was voluntary?

       4. Whether trial counsel was ineffective for failing to request a
          corpus delicti instruction?




____________________________________________


6 We note that on direct appeal, Appellant provided a more complete record
that appeared to include exhibits, as well as the recording of Appellant’s first
statement to investigators.

                                           -8-
J-A04029-18


      5. Whether trial counsel was ineffective for failing to request a
         cautionary instruction explaining the limited use of the various
         404(b) evidence?

Appellant’s Brief at 4 (capitalization omitted).

      The principles governing our review are as follows:

      [O]ur scope of review “is limited to the findings of the PCRA court
      and the evidence on the record of the PCRA court’s hearing,
      viewed in the light most favorable to the prevailing party.” . . . We
      defer to the PCRA court’s factual findings and credibility
      determinations supported by the record. In contrast, we review
      the PCRA court’s legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(en banc) (citations omitted).

      It is well settled that

      [c]ounsel is presumed effective, and in order to overcome that
      presumption a PCRA petitioner must plead and prove that: (1) the
      legal claim underlying the ineffectiveness claim has arguable
      merit; (2) counsel’s action or inaction lacked any reasonable basis
      designed to effectuate petitioner’s interest; and (3) counsel’s
      action or inaction resulted in prejudice to petitioner.

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations

omitted). The petitioner must plead and prove all three prongs, and the failure

to establish any one prong warrants denial of an IAC claim. Id.

      Appellant’s first two arguments, which we address jointly, allege that

the PCRA court erred in denying Appellant’s IAC claims that trial counsel were

ineffective for failing to litigate properly meritorious suppression issues.

Appellant asserts that he could not have knowingly or intelligently waived his

Miranda rights for his second statement on August 18, 2011, because


                                      -9-
J-A04029-18



Attorney Bacher was prevented from contacting Appellant during the

interview. Appellant further contends that trial counsel should have called

Attorney Bacher to testify at the suppression hearing to support this claim.

      The PCRA court opined that Appellant’s claims lacked merit because

Appellant was given Miranda warnings before his second statement, did not

request a lawyer, and was not aware that Attorney Bacher was at the

barracks. PCRA Ct. Op. & Order, 4/11/17, at 6, 8. The court further suggested

that Appellant’s family could not have invoked Appellant’s right to counsel and

that Attorney Bacher’s testimony at the suppression hearing would have been

irrelevant.   For the reasons that follow, we agree with the PCRA court’s

analysis.

      The validity of a waiver of Miranda rights is a question of law.

Commonwealth v. Knox, 50 A.3d 732, 746 (Pa. Super. 2012) (citations

omitted). A defendant’s waiver must be “voluntary, in the sense that [the]

defendant’s choice was not the end result of governmental pressure[ and]

knowing and intelligent, in the sense that it was made with full comprehension

of both the nature of the right being abandoned and the consequence of that

choice.” Commonwealth. v. Pruitt, 951 A.2d 307, 318 (Pa. 2008) (citation

omitted).

      “Miranda warnings are ‘not themselves rights protected by the

Constitution but [are] instead measures to insure that the [suspect’s] right

against compulsory self-incrimination [is] protected.’”   Moran v. Burbine,

475 U.S. 412, 424 (1986) (citations omitted). Under the Fifth Amendment,

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the right to counsel protects a defendant’s “desire to deal with the police only

through counsel in order to counteract the inherent pressures of custodial

interrogation.” Commonwealth v. Santiago, 599 A.2d 200, 202 (Pa. 1991).

That   right   is   personal    and   cannot     be   invoked   by   another   party.

Commonwealth v. Hall, 701 A.2d 190, 198 (Pa. 1997).                    The privilege

against self-incrimination in Article I, Section 9 of the Pennsylvania

Constitution “tracks the protection afforded under the Fifth Amendment.”

Commonwealth v. Arroyo, 723 A.2d 162, 166 (Pa. 1999) (citations

omitted).

       In at least two decisions in the 1970s, the Pennsylvania Supreme Court

condemned the practice of preventing an attorney from contacting a

defendant during an interrogation. In Commonwealth v. Harmon, 269 A.2d

744 (Pa. 1970) (per curiam), the Court affirmed a trial court’s suppression of

a confession concluding that the facts of that case “disclose[d] the use of

tactics in the securing of the challenged statement which we cannot condone.”

Id. at 746.    However, the Court expressly declined to reach “the issue of

whether or not the challenged statement was secured under impermissible

constitutional circumstances[.]” Id.

       In Commonwealth v. Hilliard, 370 A.2d 322 (Pa. 1977), a plurality of

the Court asserted: “If counsel has expressed a desire to be present during

interrogation, a waiver of counsel obtained in counsel’s absence should be

held invalid as a matter of law.” Id. at 324 (Roberts J., with O’Brien and

Manderino, JJ. joining).       In support, the Hilliard plurality relied on prior

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dissenting Pennsylvania Supreme Court opinions, as well as a decision of the

New York Court of Appeals. Id. (citing Commonwealth v. Yates, 357 A.2d

134, 136 (Pa. 1976) (Roberts, J. dissenting, joined by Nix and Manderino, JJ.),

Commonwealth v. Hawkins, 292 A.2d 302, 309 (Pa. 1972) (Nix, J.

dissenting, joined by Roberts and Manderino, JJ.), and People v. Hobson,

348 N.E.2d 894 (N.Y. 1976)).

      Subsequently, in 1986, the United States Supreme Court clarified the

Fifth Amendment right to counsel in Moran.       In that case, the defendant

waived his Miranda rights before an interrogation, but police officers had

prevented an attorney, whom the defendant’s sister attempted to retain, from

contacting the defendant during the ensuing interrogation. Moran, 475 U.S.

at 417-18.    The defendant was unaware of his sister’s attempt to secure

counsel for him or counsel’s attempt to contact him. Id. at 417.

      Following his conviction for murder and an unsuccessful appeal in state

court, the defendant sought habeas corpus relief in the federal courts. Id. at

418-19.   The defendant asserted, in part, that the conduct of the police

violated his Fifth Amendment rights. Id. at 419. A circuit court of appeals

agreed with the defendant and ordered a new trial, but the United States

Supreme Court reversed the circuit court’s order.

      The Moran Court concluded that the refusal to allow the attorney to see

the defendant during the interrogation did not affect the validity of the

defendant’s waiver of his Miranda rights. Id. at 421.




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      Events occurring outside of the presence of the suspect and
      entirely unknown to him surely can have no bearing on the
      capacity to comprehend and knowingly relinquish a constitutional
      right. . . . Once it is determined that a suspect’s decision not to
      rely on his rights was uncoerced, that he at all times knew he
      could stand mute and request a lawyer, and that he was aware of
      the State’s intention to use his statements to secure a conviction,
      the analysis is complete and the waiver is valid as a matter of law.

Id. at 422-23 (footnote omitted).

      The Moran Court rejected the circuit court’s determination that the

deliberate conduct of the police officers in preventing an attorney from

contacting the defendant was relevant to the defendant’s waiver of his

Miranda rights. Id. at 423.

      Granting that the “deliberate or reckless” withholding of
      information is objectionable as a matter of ethics, such conduct is
      only relevant to the constitutional validity of a waiver if it deprives
      a defendant of knowledge essential to his ability to understand the
      nature of his rights and the consequences of abandoning them.

Id. at 423-24.

      The Moran Court further concluded that it would be inappropriate,

under Miranda, to require the police to inform a defendant that an attorney

was attempting to reach him.        Id. at 425.     The Court emphasized that

Miranda carefully balanced society’s interests “in finding, convicting, and

punishing those who violate the law” with the “substantial risk that the police

will inadvertently traverse the fine line between legitimate efforts to elicit

admissions and constitutionally impermissible compulsion.” Id. at 426. The

Court concluded that requiring the police to advise a suspect that an attorney

wanted to contact him would only minimally advance the policy of dispelling

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the coercion inherent in a custodial interrogation, while substantially

burdening society’s interests in legitimate law enforcement. Id. at 427.

       Pennsylvania courts have adopted Moran and rejected claims that a

Miranda waiver was invalid because the police failed to inform a defendant

that an attorney was attempting to contact him. The Pennsylvania Supreme

Court in Arroyo and this Court, in Commonwealth v. Rushing, 71 A.3d 939

(Pa. Super. 2013), rev’d on other grounds, 99 A.3d 416 (Pa. 2014), have

concluded that Moran foreclosed similar arguments based on the federal

constitution.7 See Arroyo, 723 A.2d at 166; Rushing, 71 A.3d at 951.

       Instantly, although Appellant relies on cases such as the per curiam

decision in Harmon and plurality decision in Hilliard, the more recent

Pennsylvania decisions on the Fifth Amendment right to counsel follow the

approach set forth in Moran. See Arroyo, 723 A.2d at 166; Rushing, 71

A.3d at 951. Accordingly, we agree with the PCRA court’s conclusion that the

conduct of the PSP troopers who prevented Attorney Bacher from contacting

Appellant did not vitiate Appellant’s otherwise knowing, intelligent and

voluntary waiver of his Miranda rights. Thus, we discern no basis to disturb




____________________________________________


7 As noted in Rushing and by Appellant, other states have held that the
practice of refusing to allow an attorney access to a defendant may invalidate
a Miranda waiver.




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the trial court’s conclusion that Appellant failed to establish arguable merit to

his first two IAC claims.8

       Appellant next contends that trial counsel were ineffective for failing to

object to Corporal Courtright’s testimony indicating that Appellant’s first

statement was given voluntarily. A more detailed background to this claim

follows.   During trial, the Commonwealth called Corporal Courtright.          The

corporal testified that on August 12, 2011, he received a report of the shooting

and went to the PSP barracks in Ephrata.             There, the corporal obtained

information about the shooting, as well as a report that troopers had taken

Appellant and Appellant’s father into custody and transported them to the PSP

barracks in Harrisburg. The corporal went to the PSP barracks at Harrisburg

and met with Appellant.

       Corporal    Courtright     and    Trooper   Chadwick   Roberts   interviewed

Appellant beginning at 1:45 a.m. on August 13, 2011. N.T. Trial, 3/5/13, at

1796. When describing Appellant’s waiver of his Miranda rights, the following

exchange occurred:

       [Commonwealth’s counsel]. When these rights were being
       reviewed with [Appellant], did he indicate his understanding of
       these rights?

       [Corporal Courtright]. Yes.


____________________________________________


8 Because the PCRA court considered the merits of this claim, we need not
consider the PCRA court’s alternative suggestion that Appellant’s claim was
previously litigated because this Court affirmed the trial court’s suppression
ruling in the direct appeal. See PCRA Ct. Op. & Order at 6, n.3.

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     Q. While these rights were being reviewed with [Appellant], did
     he ask any questions?

     A. No.

     Q. While these rights were being reviewed with [Appellant], did
     he request either clarification or explanation of these rights?

     A. No.

     Q. While these rights were being reviewed with [Appellant], were
     you able to understand him if he said anything while these rights
     were being reviewed?

     A. Yes.

     Q. Was [Appellant] under any apparent influence of alcohol?

     A. No.

     Q. Was [Appellant] under any apparent influence of controlled
     substances?

     A. No.

     Q. If [Appellant] had exhibited any difficulty conversing with or
     understanding you, would you have proceeded with the interview?

     A. No.

     Q. Did you or Trooper Roberts make any express or implied
     promise or consideration in exchange for [Appellant] providing
     you with a statement?

     A. No.

     Q. Did you or Trooper Roberts force, coerce or threaten
     [Appellant] to provide a statement?

     A. No.

     Q. To the best of your knowledge, was [Appellant’s]
     agreement to provide a statement a free and voluntary act?

     A. Yes.

     Q. If you had determined that [Appellant’s] agreement was not a
     free and voluntary act, would you have proceeded with the
     interview?


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      A. No.

Id. at 1802-04 (emphasis added). Shortly following this exchange at trial,

the Commonwealth played the audio recording of Appellant’s first statement

to the jury. Id. at 1806.

      At the PCRA hearing, Attorney Charles—Appellant’s private trial

attorney—explained the decision not to object to Corporal Courtright’s

suggestion that Appellant’s statement was free and voluntary.

      We had attacked the voluntariness of the confession but the
      [suppression] ruling was against us.

      What we wanted to convey to the jury was that [Appellant] did go
      to the police station on two occasions, waived his Miranda rights,
      and was cooperating with the police, because this was an accident,
      not an intentional killing. So in him saying to the jury that it was
      a voluntary statement, well, the [c]ourt already ruled that that
      was the case. Essentially, I’m going to make the best out of that
      as I can, you know, turn lemons into lemonade; try to argue that
      he is being cooperative with the police. So if that statement was
      made, and I’m certain it was, it wasn’t something that was a key
      point to me.

N.T. PCRA Hr’g, 9/14/16, at 34.

      The PCRA court denied Appellant’s claim that trial counsel were

ineffective, opining that the decision not to object was supported by a

reasonable trial strategy.

      Appellant, in his brief, renews his IAC claim that trial counsel should

have objected to Corporal Courtright’s testimony indicating that Appellant’s

agreement to provide a statement was a free and voluntary act. With respect




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to the alleged unreasonableness of Attorney Charles’ explanation for declining

to object, Appellant asserts:

      Likewise, the second prong of the PCRA test was met. Trial counsel
      testified at the PCRA hearing that he did not object to Cpl.
      Courtright’s opinion testimony. He stated that he did not object
      to it because in its pre-trial ruling the court already permitted the
      statements to come in at trial and he was attempting to “turn
      lemons in to [sic] lemonade.”           He stated in the end Cpl.
      Courtright’s statement was not “a key point to me.”

Appellant’s Brief at 29-30 (citations omitted).

      When reviewing a PCRA court’s determination that a reasonable basis

existed for counsel’s action or omission, we are mindful that

      [g]enerally, where matters of strategy and tactics are concerned,
      counsel’s assistance is deemed constitutionally effective if he
      chose a particular course that had some reasonable basis
      designed to effectuate his client’s interests. A finding that a
      chosen strategy lacked a reasonable basis is not warranted unless
      it can be concluded that an alternative not chosen offered a
      potential for success substantially greater than the course actually
      pursued.

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (citations and

quotation marks omitted).

      Having reviewed the record, the PCRA court’s ruling, and Appellant’s

arguments, we agree with the PCRA court’s ruling that Attorney Charles stated

a reasonable basis for declining to object to Corporal Courtright’s testimony.

Appellant’s boilerplate argument fails to demonstrate that Attorney Charles’

explanation was unreasonable. Moreover, we find no basis in the record to

conclude that there was any greater potential for success in objecting to the



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corporal’s passing reference to Appellant’s waiver of his Miranda rights. See

Colavita, 993 A.2d at 887. Because Appellant has not demonstrated that trial

counsel lacked a reasonable basis for not objecting to the foregoing exchange,

this IAC claim warrants no relief. See Mason, 130 A.3d at 618.

      Appellant next contends that the PCRA court erred in rejecting his IAC

claim based on trial counsels’ failure to request a corpus delicti jury

instruction. At the outset, we reiterate that Appellant gave two statements to

police following the shooting. At trial, the Commonwealth played an audio

recording of the first statement to the jury. Although the audio recording,

marked as Commonwealth’s exhibit 10, was admitted into the trial record, a

separate transcribed statement was not admitted into evidence. The second

statement was transcribed and marked as an exhibit. The Commonwealth

and the defense referred to portions of statements when examining Corporal

Courtright and Trooper Roberts, but neither party moved the exhibit into

evidence at trial.

      At the PCRA hearing, Appellant asked Attorney Charles about his

decision not to request a corpus deliciti instruction.       Attorney Charles

responded that he believed the corpus delicti rule did not apply.

      The PCRA court denied relief on this issue, concluding that Appellant’s

arguments lacked arguable merit. According to the court, the corpus delicti

rule did not apply because Appellant’s statements were exculpatory in nature.

Alternatively, the court concluded that Appellant could not show prejudice

based on its instructions to the jury that it was bound to find Appellant guilty

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beyond a reasonable doubt and its instructions regarding the voluntariness of

Appellant’s statements.

      In his argument on appeal, Appellant asserts that the PCRA court erred

in concluding that the corpus delicti rule did not apply because his statements

were exculpatory.     Appellant further suggests that the prejudice resulted

because Appellant’s statements were crucial to the Commonwealth’s case. In

light of the defense’s theory that the shooting was accidental, Appellant

contends, the failure to request the instruction was unreasonable because it

conceded that a crime had occurred.

      It is well settled that

      [t]he corpus [delicti] . . . rule places the burden on the prosecution
      to establish that a crime has actually occurred before a confession
      or admission of the accused connecting him to the crime can be
      admitted. The Commonwealth need not prove the existence of a
      crime beyond a reasonable doubt as an element in establishing
      the corpus delicti of a crime, but the evidence must be more
      consistent with a crime than with [an] accident. The corpus delicti,
      or body of the crime, may be proven by circumstantial evidence.

      Our Court has explained:

         Establishing the corpus delicti in Pennsylvania is a two-step
         process. The first step concerns the trial judge’s admission
         of the accused’s statements and the second step concerns
         the fact finder’s consideration of those statements. In order
         for the statement to be admitted, the Commonwealth must
         prove the corpus delicti by a preponderance of the evidence.
         In order for the statement to be considered by the fact
         finder, the Commonwealth must establish the corpus delicti
         beyond a reasonable doubt.

Commonwealth v. Murray, 174 A.3d 1147, 1154 (Pa. Super. 2017)

(citations and quotation marks omitted).


                                     - 20 -
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      “The corpus delicti in a homicide case consists of proof that the person

for whose death the prosecution was instituted is in fact dead and that the

death occurred under circumstances indicating that it was criminally caused

by someone.”     Commonwealth v. Dupre, 866 A.2d 1089, 1097-98 (Pa.

Super.   2005)   (citations,   quotation   marks,   and   emphasis      omitted).

Pennsylvania Suggested Standard Criminal Jury Instruction 3.02B sets forth

the following model instruction on corpus delicti in a homicide case:

      1. As I told you, you may not consider the statement as evidence
      against the defendant unless you find beyond a reasonable doubt
      that a crime was committed. To consider the statement as
      evidence, you must be satisfied beyond a reasonable doubt by all
      of the evidence, excluding the statement, that [name of victim] is
      dead and that [his] [her] death was probably caused by someone
      feloniously killing [him] [her].

      2. The other evidence need not tend to show that the crime was
      committed by the defendant only that the crime was committed
      by someone. Furthermore, the other evidence need not rule out
      all possibility of accident or suicide. It is enough if you are
      satisfied beyond a reasonable doubt that the circumstances are
      more consistent with death having been caused by a felonious
      killing than in some other way.

      3. The object of these rules is to guard against convicting a person
      of a crime that never really happened even though the defendant
      confessed to it.

Pa. SSJI (Crim) § 3.02B.

      Generally, when this Court reviews the trial court’s instructions,

      [a] jury charge will be deemed erroneous only if the charge as a
      whole is inadequate, not clear or has a tendency to mislead or
      confuse, rather than clarify, a material issue. A charge is
      considered adequate unless the jury was palpably misled by what
      the trial judge said or there is an omission which is tantamount to
      fundamental error. Consequently, the trial court has wide

                                     - 21 -
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      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties and
      its refusal to give a requested charge does not require reversal
      unless the [defendant] was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) (citation

omitted).

      In Commonwealth v. McMullen, 681 A.2d 717 (Pa. 1996), the

decedent, who was a schizophrenic, was known to take long walks, engage in

risky behavior, and indeed was previously struck by a car during one of his

walks. Id. at 718, 720. In February 1985, the decedent’s body was found in

a creek eight days after the burglary of a food store. Id. at 718. The decedent

was found within 500 yards of two bridges spanning the creek.            Id.   An

autopsy of the decedent revealed no signs of foul play, and his death was

initially ruled to be an accidental drowning. Id. However, rumors about the

decedent’s death and the burglary of the food store persisted. Id.

      Four   years   later,   the   Pennsylvania   State   Police   reopened   the

investigations into both the decedent’s death and the burglary at issue. Id.

During the renewed investigation, the defendant gave a statement to police

that he and another person burglarized the food store and while fleeing from

the burglary, encountered the decedent on a bridge.          Id.    The defendant

asserted that his cohort threw the decedent off the bridge. Id.

      Following a trial at which the defendant’s statement was admitted, a

jury found the defendant guilty of burglary and second-degree murder.          Id.

at 720. The defendant appealed to this Court arguing that the Commonwealth



                                       - 22 -
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failed to establish corpus delicti. Id. On direct appeal, this Court reversed

the trial court and ordered a new trial.           We concluded the independent

evidence in that case did not establish that the decedent’s death was more

likely a homicide than an accident. Id. The Commonwealth appealed to the

Pennsylvania Supreme Court.

         The McMullen Court affirmed this Court’s determination that corpus

delicti was lacking with respect to the homicide.9 The Court first rejected the

Commonwealth’s argument that the corpus delicti rule did not apply because

the defendant blamed his cohort for throwing the decedent off the bridge. Id.

at 721.     Instead, the Court concluded that the defendant’s statement was

inculpatory for the purposes of the corpus delicti rule, because the defendant’s

statement was the sole evidence establishing the defendant’s presence at the

scene of the crime and a possible motive to kill the decedent. Id.

         The McMullen Court proceeded to consider the evidence presented at

trial.

         In the present matter, we have no difficulty concluding that the
         evidence independent of [the defendant’s] statement was
         insufficient to establish the corpus delicti for the homicide charge.
         The only evidence pointing to foul play were the bruises and
         lacerations on the decedent’s face, and the pathologist could not
         conclude that these blows were more likely caused by an assailant
         than they were by decedent’s striking objects after falling into the
         water. On the other hand, much evidence pointed to the
         decedent’s death being an accident, including the lack of signs of
         a struggle and decedent’s own behavior. Most notably, no new
         evidence other than [the defendant’s] statement surfaced
____________________________________________


9 The McMullen Court, however, reversed this Court’s award of a new trial
for burglary because there was ample independent evidence of that crime.

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      between the time of the original findings of accidental death and
      the reopening of the burglary and death investigations.

Commonwealth v. McMullen, 681 A.2d at 722 & n.5. (footnote omitted).

      In light of McMullen, we agree with Appellant that the mere fact that

he asserted the shooting was accidental did not render the statement

exculpatory for the purposes of the corpus delicti rule.     As in McMullen,

Appellant’s statements contained averments that suggested a possible

motive, including Appellant’s statement that he intended to “devil” Walsh,

when she was ignoring him and reading her book.

      Nevertheless, this is not a case where the traditional policies underlying

the corpus delicti rule are implicated. There was ample independent evidence

that established corpus delicti. Walsh was shot in the forehead, and it was

undisputed that the wound was not self-inflicted. It was also established that

Appellant was the only other person in the room. The .22 caliber pistol at

issue had several safety features that would have made an accidental

discharge unlikely if the magazine were removed. Moreover, although the

firearm did not have the magazine in place when Appellant turned over the

weapon to first responders, there was still an unfired cartridge loaded in the

weapon. The evidence further established that the weapon was almost fully

loaded at the time of shooting. Thus, the independent evidence established

that it was more likely that the discharge of the firearm was criminal rather

than accidental because Appellant knowingly pointed a loaded firearm at

Walsh’s head.



                                    - 24 -
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       Therefore, we conclude that Appellant’s IAC claim based on the failure

to request a corpus delicti instruction lacked arguable merit.10 Moreover, even

assuming that an instruction was warranted, Appellant failed to demonstrate

prejudice in light of the independent evidence establishing that it was more

likely that Walsh was killed by a criminal act than by an accident. Accordingly,

no relief is due. See Mason, 130 A.3d at 618.

       Appellant, in his final issue, asserts that the PCRA court erred in denying

relief on his IAC claim based on trial counsels’ failure to request a cautionary

instruction regarding the prior bad acts evidence admitted in this case. For

purposes of our discussion, we initially summarize the prior bad acts evidence

presented by the Commonwealth at trial.

       First, Danielle Detweiler testified that she dated Appellant for over one

year in high school, approximately five years before the trial and three years

before the shooting. N.T., 3/7/13, at 2341. Danielle stated that Appellant

“had a handgun that he said was his grandpa’s. And he said it didn’t work.”

Id. at 2343. According to Danielle, Appellant pointed that handgun at her on

several occasions.      Id.    The first time Appellant pointed the gun at her,

Appellant “was, like joking around.” Id. at 2344. The other times occurred

when “he would get erratic and angry.” Id.

       Danielle also testified that Appellant had several “airsoft” guns that he

would “play around with[.]” Id. She stated, however, that he would “also
____________________________________________


10 See Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009)
(reiterating that this Court may affirm the PCRA court on a different basis).

                                          - 25 -
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shoot [her] if he got mad.” Id. She asserted that there were more than ten

incidents in which Appellant shot her and that Appellant would shoot her more

than once during each incident. Id. According to Danielle, the shots would

leave marks about her arms and legs, and on one occasion, Appellant hit her

on the toe, and her toenail broke off a couple of days later. Id. at 2345, 2348.

      Danielle recalled one specific incident in which Appellant shot her with

the “airsoft” gun:

      [Commonwealth’s counsel]. How close did he ever get when he
      shot you with the pellet gun?

      [Danielle Detweiler]. He held me down and shot me while he was
      on top of me, --

      Q. When --

      A. Like up against.

      Q. In that instance, where did he shoot you?

      A. In my vagina.

      Q Let me be a little more clear.

            Were your panties on when he shot you there?

      A. I had very thin mesh panties on.

      [Commonwealth’s counsel]: Nothing further.

Id. at 2348-49.

      Second, Devon Detweiler, Danielle’s sister, testified that she observed

Appellant shoot Danielle with the “airsoft” gun “like, a couple of times when

he was actually angry with her.” Id. at 2364. Danielle would tell him to stop,

but Appellant would “keep going with it.” Id. at 2366. Devon testified that



                                     - 26 -
J-A04029-18



she would see bruises on Danielle’s legs and arms after Appellant shot her

with the “airsoft” gun. Id. at 2366.

        Third, Gregory Miller testified that he was friends with Appellant. He

stated, in relevant part, that “[Appellant] was verbally abusive to [Walsh]

pretty much constantly from the time they started dating onward. . . . He

referred to her with just about every common insult. I heard he referred to

her regularly as a bitch, a slut, a whore, and on more than one occasion like

a cunt or nigger.”11 Id. at 2385. Miller continued to testify that Appellant

would “become angry at [Walsh], would say things like, you remember I have

guns at home, right? And would frequently remind her that he had firearms

and ammunition when he was angry with her.”          Id. at 2386.     Appellant

threatened to “pistol whip” Walsh on one occasion. Id.

        Fourth, the Commonwealth admitted a July 21, 2011 Facebook

exchange between Walsh and her sister, Megan Walsh.            The exchange

contained the following statements:

        [Walsh] I am so[12] tempted to just pack all my shit up, but I’m
        deathly afraid of his reaction.

        [Megan] What would he do?

        [Walsh] Probably flip out and pull a gun on me knowing him.

Id. at 2317-19.

____________________________________________


11   Both Appellant and Walsh were white.

12The trial testimony and this Court’s direct appeal decision indicate that
Walsh used capital letters to write “SO.”

                                          - 27 -
J-A04029-18



      In Appellant’s direct appeal, this Court concluded that the evidence of

the Facebook exchange should not have been admitted. Specifically, we noted

that the exchange should not have been admitted under the state of mind

exception to the rule against hearsay because “the logical connection between

[Walsh]’s statement of fear and [Appellant’s] malice [wa]s not obvious.”

Becker, 1801 MDA 2013, at 13 (discussing, inter alia, Pa.R.E. 803.03 and

Commonwealth v. Luster, 71 A.3d 1029 (Pa. Super. 2013)). This Court

proceeded to engage in a harmless error analysis:

      The significance of the cartridge recovered in the chamber is that
      the magazine must have been in the gun for the next cartridge to
      have been chambered after Walsh was shot. When [Appellant]
      was first interviewed in the early hours of August 13, 2011, he
      told police the shooting was an accident based upon his claim
      there was no magazine in the gun and he believed the gun was
      empty. However, when the gun was recovered, a live cartridge
      was in the chamber. The fact that there was a cartridge in the
      chamber after the gun had been fired disproved [Appellant]’s
      statement to police that the magazine was not in the gun at the
      time of the shooting. In light of this critical evidence, which fully
      supports the Commonwealth’s theory that [Appellant] knowingly
      pointed a loaded gun at Walsh, we conclude the admission of
      Megan Walsh’s testimony of her sister’s Facebook statements was
      harmless error.

Id. at 14-15 (record citations and footnote omitted).

      Instantly, both the PCRA court and the Commonwealth concede in this

appeal, and we agree, that Appellant’s underlying IAC claim had arguable

merit and that trial counsel failed to articulate a reasonable strategic basis for




                                     - 28 -
J-A04029-18



failing to request a cautionary instruction.13 Therefore, the sole question with

respect to this IAC claim is whether Appellant established prejudice.

       Appellant contends:

       Cautionary instructions under the circumstances were crucial to
       decrease the danger of unfair prejudice. Furthermore, the
       evidence against [Appellant] was circumstantial at best. In such a
       case, there was simply no way to ascertain the weight the jury
       gave to this highly damaging testimony and the potential it had to
       improperly influence the jury.

Appellant’s Brief at 47.




____________________________________________


13 It is well settled that “[e]vidence of a defendant’s prior bad acts is generally
inadmissible, and where such evidence is admitted, a defendant is entitled to
a jury instruction that the evidence is admissible only for a limited purpose.”
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (citation
omitted). In this case, Attorney Holihan testified that he intended to request
a limiting instruction, but conceded that no request was made and there was
not a strategic basis for the omission. N.T. PCRA H’rg, 9/14/16, at 66-67.

Pennsylvania Standard Suggested Jury Instruction 3.08 recommends the
following instruction regarding prior bad acts:

       1. You have heard evidence tending to prove that the defendant
       was guilty of . . . [improper conduct] for which [he] [she] is not
       on trial. I am speaking of the testimony to the effect that [explain
       testimony].

       2. This evidence is before you for a limited purpose, that is, for
       the purpose of tending to [show [give specifics]] [contradict [give
       specifics]] [rebut [give specifics]] [give specifics]. This evidence
       must not be considered by you in any way other than for the
       purpose I just stated. You must not regard this evidence as
       showing that the defendant is a person of bad character or
       criminal tendencies from which you might be inclined to infer guilt.

Pa. SSJI (Crim) § 3.08.

                                          - 29 -
J-A04029-18



      The Commonwealth responds that the PCRA court properly concluded

that any error did not result in prejudice. Both the Commonwealth and the

PCRA court refer to this Court’s prior conclusion that any error in admitting

Walsh’s prior statements to her sister regarding Walsh’s fear of Appellant was

harmless beyond a reasonable doubt. According to the Commonwealth:

      [T]here is no question that [Appellant] shot [Walsh]—who he
      knew to be pregnant—in the head at close range. [Appellant’s]
      assorted contradictory statements notwithstanding, it is also clear
      that the gun was loaded, with the magazine in it at the time he
      pulled the trigger. The evidence also showed that [Appellant] did
      not take efforts to summon emergency assistance, and did not
      administer first aid to the victim at the scene. Without the Rule
      404(b) evidence, the physical evidence, combined with
      [Appellant]’s contradictory and self-serving statements, make
      clear that [Appellant] possessed the requisite intent to kill . . .
      Walsh, and the requisite malice that led to the death of her unborn
      child.

      Further, this Honorable Court held on direct appeal that the
      improper admission of certain 404(b) evidence in and of itself
      constituted harmless error. [Becker, 1801 MDA 2013, at 14-15].
      As noted by the PCRA court, “[i]f the admission of the evidence
      itself was deemed harmless, the failure to request a limiting
      instruction under the circumstances would also be harmless.”

      As such, [Appellant] was not prejudiced by the failure to issue a
      limiting instruction.

Commonwealth’s Brief at 34-35 (some citations omitted).

      The Pennsylvania Supreme Court has defined prejudice for the purposes

of the PCRA as follows:

      [A] defendant [raising a claim of ineffective assistance of counsel]
      is required to show actual prejudice; that is, that counsel’s
      ineffectiveness was of such magnitude that it “could have
      reasonably had an adverse effect on the outcome of the
      proceedings.” [Commonwealth v. Pierce, 527 A.2d 973, 977

                                     - 30 -
J-A04029-18


      (Pa. 1987)]. This standard is different from the harmless error
      analysis that is typically applied when determining whether the
      trial court erred in taking or failing to take certain action. The
      harmless error standard, as set forth by this Court in
      Commonwealth v. Story, . . . 383 A.2d [155], 164 [(Pa. 1978)]
      (citations omitted), states that “[w]henever there is a ‘reasonable
      possibility’ that an error ‘might have contributed to the conviction,’
      the error is not harmless.” This standard, which places the burden
      on the Commonwealth to show that the error did not contribute
      to the verdict beyond a reasonable doubt, is a lesser standard than
      the Pierce prejudice standard, which requires the defendant to
      show that counsel’s conduct had an actual adverse effect on the
      outcome of the proceedings. This distinction appropriately arises
      from the difference between a direct attack on error occurring at
      trial and a collateral attack on the stewardship of counsel. In a
      collateral attack, we first presume that counsel is effective, and
      that not every error by counsel can or will result in a constitutional
      violation of a defendant’s Sixth Amendment right to counsel.

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (some citations

omitted).

      We reiterate that Appellant was charged with homicide for the killing of

Walsh and homicide of an unborn child. See 18 Pa.C.S. §§ 2502, 2604. The

jury convicted Appellant of first-degree murder with respect to Walsh, 18

Pa.C.S. § 2503(a), and third-degree murder of an unborn child, 18 Pa.C.S. §

2604(c). The jury was instructed that both charges require malice, but the

first-degree murder conviction required proof that Appellant specifically

intended to kill Walsh. See Commonwealth v. Williams, 176 A.3d 298, 306

(Pa. Super. 2017) (stating that “[a]n individual commits first-degree murder

when he intentionally kills another human being; an intentional killing is

defined as a ‘willful, deliberate and premeditated killing.’” (citation omitted));

see also Commowealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (stating


                                     - 31 -
J-A04029-18



that “to convict a defendant of the offense of third-degree murder, the

Commonwealth need only prove that the defendant killed another person with

malice aforethought. [M]alice ‘comprehends not only a particular ill-will, but

. . . [also a] wickedness of disposition, hardness of heart, recklessness of

consequences, and a mind regardless of social duty, although a particular

person may not be intended to be injured.’” (citations and emphasis omitted)).

      In Commonwealth v. Billa, 555 A.2d 835 (Pa. 1989), the defendant

was convicted of murder, robbery, escape, and possessing an instrument of

crime and sentenced to death.     Id. at 837-39.    The evidence against the

defendant included the defendant’s admissions that he took jewelry from the

decedent, and during an altercation with her, the defendant stabbed her. Id.

at 838. The defendant then struck her in the head with an aluminum bat. Id.

Additionally, a pillowcase containing the defendant’s clothes were stained by

type-O blood, which was consistent with the decedent’s blood type. Id.

      At trial, in Billa, the Commonwealth called the victim of a prior robbery

and rape committed by the defendant two months before the killing of the

decedent. Id. In that incident, the defendant strangled the decedent, stating

that he could not let her go because she would go to the police. Id. The

Commonwealth asserted the evidence showed modus operandi and the

defendant’s intent to kill and also negated the defendant’s claim that the

stabbing of the decedent was accidental. Id.

      The Billa Court concluded that the evidence of the prior rape was

admissible, but proceeded to consider whether trial counsel was ineffective for

                                    - 32 -
J-A04029-18



failing to request a cautionary instruction. Id. at 841. The Court noted that

a cautionary instruction is generally necessary when prior bad acts evidence

is admitted to address “the potential for misunderstanding on the part of the

jury when this type of evidence is admitted.”        Id. (citation and emphasis

omitted). The Court found that the failure to issue a cautionary instruction in

that case was prejudicial because

       [i]t is clear that the challenged evidence in this case, the vivid
       description by a prior rape victim of [the defendant’s] violent
       sexual assault against her, was highly inflammatory and created
       the substantial danger that the jury could be swayed in its
       deliberations on the degree of guilt by this evidence showing [the
       defendant’s] criminal character and his propensity to sexually
       assault young Hispanic females. Such evidence was relevant and
       admissible as the trial court ruled, but the court erred in failing to
       give an immediate and complete cautionary or limiting instruction
       to the jury explicitly instructing the jury as to the limited purposes
       for which the evidence was deemed admissible. Such an
       instruction neither preceded nor followed the introduction of said
       evidence, nor was a limiting instruction given in its final charge to
       the jury. Without such instruction, the jury was left without
       guidance as to the use it could legitimately make of the
       inflammatory evidence and may have been more inclined,
       therefore, to convict the [defendant] of first degree murder
       because he had assaulted and intended to kill his prior victim.

Id. at 841-42.     The Court continued: “Given the highly inflammatory and

extensive nature of the evidence of the prior sexual assault, we cannot say

with any reasonable certainty that the jury would have returned the same

verdict of murder of the first degree had it been properly instructed.” Id. at

843.




                                      - 33 -
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      In Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), the

defendant filed a PCRA petition after his conviction for murder and other

offenses were affirmed on direct appeal. Id. at 283-84. The defendant, in

relevant part, alleged that he was entitled to relief based on the admission of,

and trial counsel’s failure to request a cautionary instruction on, the following

prior bad acts: (1) testimony from a murder victim’s sister that the defendant

previously assaulted the victim and attempted to force himself on her, (2)

evidence that the defendant’s former paramour had previously obtained a

protection from abuse order against the defendant, (3) testimony that the

defendant threatened to kill the victim’s estranged husband, and (4)

testimony that the defendant used aliases. Id. at 299. The first two acts

were litigated in a direct appeal and found to be harmless based on

overwhelming evidence of guilt. Id. at 299-300. The third act—threatening

the victim’s husband—was raised by the defense during the defense’s cross-

examination. Id. at 299-300. The fourth act presented by the Commonwealth

was deemed highly relevant to establish the victim sought a protection from

abuse order against Appellant and to tie him to a cell phone and his flight from

Pennsylvania following the murder. Id. at 305.

      The Hutchinson Court rejected the defendant’s IAC claim based on

counsel’s failure to request a cautionary instruction. Id. at 305-06. The Court

reasoned:

      The bad acts evidence of which [the defendant] complains was not
      inflammatory, not graphic, and not extensive. Some of the
      evidence was elicited as a single sentence in passing during cross-

                                     - 34 -
J-A04029-18


      examination of the witnesses by defense counsel. In closing
      argument, the Commonwealth did make reference to [the
      defendant]’s abuse of the victim, but did not mention the other
      bad acts. Under these circumstances, an instruction as to the bad
      acts evidence may very well have served only to re-emphasize the
      evidence to the jury. More importantly, [the defendant] has not
      established prejudice, i.e., he has failed to demonstrate that there
      is a reasonable probability that the outcome of his trial would have
      been different but for the lack of a limiting instruction. We have
      previously noted the “overwhelming evidence” of the defendant’s
      guilt. In light of this overwhelming evidence, which includes
      eyewitness testimony of the victim’s two children, both of whom
      knew [the defendant], [the defendant] has failed to suggest how
      he could have been prejudiced by counsel’s failure to request a
      limiting instruction such that there is a reasonable probability that
      the outcome of his trial would have been different.

Id. at 306 (citation omitted).

      We conclude that this case falls closer to Hutchinson than Billa. The

Commonwealth was permitted to admit evidence of Appellant’s prior bad acts,

including Appellant’s treatment of and use of “airsoft” guns against Danielle

Detweiler. The evidence was admissible to prove ill-will, absence of mistake

and motive. Additionally, the evidence that Appellant verbally abused and

threatened Walsh presented through Miller was probative to rebut Appellant’s

description of his relationship with Walsh.

      Even if the evidence was prejudicial, it was not unfairly prejudicial. The

evidence did not tend to show that Appellant would have harbored a specific

intent to kill on the night of the shooting.     The incidents testified to by

Detweiler only showed that Appellant had once brandished an actual firearm

and that he shot her with plastic pellets from an “airsoft” gun.       Similarly,

although Miller’s testimony established possible ill-will in the relationship


                                     - 35 -
J-A04029-18



between Appellant and Walsh and that Appellant would threaten the use of

firearms, there was no indication that Appellant would have employed a

firearm with the specific intent to kill. Thus, unlike Billa, the prior bad acts

evidence in the present case, while prejudicial, cannot be said to have

impacted the jury’s fair consideration of Appellant’s innocence or guilt of first

degree murder as opposed to third-degree or manslaughter. See Billa, 555

A.2d at 841-42.

        Moreover, as in Hutchinson, there was overwhelming evidence of

Appellant’s malice and specific intent.   Appellant had a nearly fully loaded

pistol pointed at Walsh. Walsh was shot in a vital part of the body—i.e., the

head.     Appellant gave inconsistent statements to investigators after the

shooting. Appellant’s statements and behavior suggested consciousness of

guilt. We are also mindful that the jury heard Appellant’s statement in full,

including Appellant’s assertion that he walked over to Walsh before the

shooting to “devil” her. The Commonwealth further introduced evidence that

Appellant did not attempt to resuscitate Walsh or call 911, and it was in the

province of the jury to weigh that evidence and accept the Commonwealth’s

argument that Appellant’s conduct following the shooting was consistent with

a person who had intentionally killed another.

        In light of the foregoing, we conclude that Appellant has failed to

establish prejudice related to trial counsels’ failure to request a cautionary

instruction. See Spotz, 84 A.3d at 315; Hutchinson, 25 A.3d at 306.




                                     - 36 -
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      Thus, having reviewed Appellant’s arguments and concluded that they

do not establish error in the PCRA court’s rulings, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2018




                                    - 37 -