J-S68022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEVINE A. CAMPBELL : : Appellant : No. 639 WDA 2019
Appeal from the PCRA Order Entered March 25, 2019 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000121-2012
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 10, 2020
Devine A. Campbell appeals from the order, entered in the Court of
Common Pleas of Mercer County, denying his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful
review, we affirm.
We previously set forth the facts of this case as follows:
On December 30, 2011, William Basilone (“the victim”) was shot and killed outside of Basilone’s Bar and Restaurant, the establishment he owned. The security cameras1 outside the bar did not capture the shooting, but did capture the images of three individuals walking up and down Roemer Boulevard at approximately 10:30 pm. One of the men was wearing a gray hooded sweatshirt with a Champion logo; he was identified as co- defendant Joshua Stewart (“Stewart”). The second man was ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S68022-19
[Campbell],2 wearing a plain, dark, hooded sweatshirt and faded jeans, while the third individual was wearing a camouflage jacket and was later identified as Tyl[o]r Kalenic (“Kalenic”). 1The bar had video surveillance cameras mounted outside and inside the bar. 2 [Campbell] was 17 years of age.
Kalenic explained that earlier that evening, he was with [Campbell] and Stewart[,] who asked him if he wanted to rob someone with them. The men went to Basilone’s, and Kalenic entered the bar by himself and approached the cash register. Kalenic testified that he placed a fake order for a pizza to “[check] the place out” and see how many people were present. The video surveillance [showed] Tyree Sanders (“Sanders”) walking east on Roemer Boulevard where he saw and greeted Kalenic, Stewart, and [Campbell]. As Sanders walked away, the men walked back to the parking lot of the bar. At this point, Kalenic left and went home.
Later that evening, the camera [showed] Stewart enter the bar, approach the register, and leave. Still later in the evening, the cameras [showed] two individuals, Stewart, who was wearing a gray hoodie[,] and [Campbell], wearing a dark hoodie, crossing the street and approaching the bar; both men were wearing masks. Stewart had both hands in the front pocket of his hoodie. [Campbell] pulled on the handle of the door to the bar and was unable to open it; the men then walked out of camera range. After this failed attempt to enter, the men went to the alley behind the building and removed their masks.
Testimony was presented that [Campbell] argued with Stewart, telling Stewart that the door was locked and there was no need to go on with the robbery. During the argument, the victim came around the corner. Stewart, who was unmasked, pulled a gun and fired at the victim, striking him several times. [Campbell] immediately fled the scene. The victim was pronounced dead at the hospital. Three eyewitnesses testified as to what they heard and saw from three different vantage points. Stewart and [Campbell] ran to Kalenic’s house and went into the basement. All three men later got into [C.V.’s] car; [C.V.’s] sister [,O.V.,] was also present. [C.V.] drove Kalenic to a friend’s house and drove [Campbell] and Stewart to Stewart’s house.
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Commonwealth v. Campbell, 58 WDA 2014, at 1-4 (Pa. Super. 4/27/15)
(unpublished memorandum) (citations to record omitted).
Following a three-day jury trial in which he was represented by J. Jarrett
K. Whelan, Esquire3 (“trial counsel”), Campbell was convicted of one count of
murder in the second degree,4 two counts of robbery,5 and two counts of
criminal conspiracy to commit robbery.6 On December 4, 2013, Campbell was
sentenced to a term of 35 years to life in prison for the second-degree murder
conviction. For the remaining charges, Campbell was given consecutive
sentences of 156 months to 40 years of imprisonment, concurrent with the
sentence imposed for second-degree murder. On December 18, 2013, the
Honorable Christopher J. St. John denied Campbell’s motion to reconsider
and/or modify his sentence. On January 6, 2014, Campbell filed a notice of
appeal, and ultimately this Court affirmed his judgment of sentence on
November 15, 2015. Our Supreme Court denied allowance of appeal on
October 27, 2015.
____________________________________________
3 Dustin Cole, Esquire, and Melissa Merchant-Calvert, Esquire, assisted attorney Whelan at Campbell’s trial. N.T. PCRA Hearing, 1/30/17, at 66.
4 18 Pa.C.S.A. § 2502.
5 18 Pa.C.S.A. § 3701.
6 18 Pa.C.S.A. § 903.
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Campbell filed a pro se PCRA petition on February 1, 2016. On August
19, 2016, Campbell, by and through Stanley T. Booker, Esquire, filed an
amended petition for PCRA relief, alleging that trial counsel was ineffective for
failing to properly impeach two Commonwealth witnesses, C.V. and Kalenic,
and for failing to object to a comment7 by the prosecutor during closing
arguments. On January 27, 2017, after multiple continuances, Campbell filed
a second amended PCRA petition. An evidentiary hearing was held on January
30, 2017. On March 25, 2019, Judge St. John denied Campbell’s PCRA
petition, finding that trial counsel had a reasonable basis for not impeaching
the Commonwealth’s witnesses in the manners Campbell specified, and
similarly had a reasonable basis for not objecting to the prosecutor’s
comment. PCRA counsel filed a successful motion to withdraw as counsel on
April 5, 2019, and subsequently, the court appointed Michael T. Muha, Esquire,
for the instant appeal.
On April 25, 2019, Campbell, by and through Attorney Muha, filed a
timely notice of appeal from the order denying PCRA relief. On May 16, 2019,
Campbell filed a Pa.R.A.P. 1925(b) court-ordered concise statement of errors
complained of on appeal. Campbell raises the following issues for our review:
I. Did the PCRA court err in rejecting [Campbell’s] claim that trial counsel was ineffective because trial counsel failed to properly cross-examine and/or impeach Commonwealth ____________________________________________
7“[The victim] is shot once through the shoulder after, ‘give me your money’ or words to that effect, is the Commonwealth’s position.” N.T. Trial, 11/20/13, Vol. II, at 300.
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witness [Kalenic] regarding his prior inconsistent statements?
II. Did the PCRA court err in rejecting [Campbell’s] claim that trial counsel was ineffective because trial counsel failed to properly cross-examine and/or impeach Commonwealth witness [C.V.] regarding her prior inconsistent statements[,] prior criminal record, probationary status at the time of trial, and federal immunity status at the time of trial?
Brief of Appellant, at 9 (reformatted to remove indentation and numbering).
In an appeal from the denial of PCRA relief, we must determine whether
the ruling of the PCRA court is supported by the record and free of legal error.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011). The scope of
our review is limited to the findings of the PCRA court and the evidence of the
record viewed in the light most favorable to the Commonwealth as the
prevailing party. Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa. 2005).
We may affirm a PCRA court’s decision on any grounds if supported by the
record. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).
In order to prevail on a claim of ineffective assistance of counsel,
Campbell must overcome the presumption that counsel was effective by
establishing: (1) his underlying legal claim has arguable merit; (2) trial
counsel’s action or inaction lacked an objectively reasonable basis; and (3)
trial counsel’s act or omission prejudiced him. Commonwealth v. Koehler,
36 A.3d 121, 132 (Pa. 2012). “[I]t is well-settled that ‘a court is not required
to analyze the elements of an ineffectiveness claim in any particular order of
priority; instead, if a claim fails under any necessary element of the [tripartite]
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test, the court may proceed to that element first.’” Id. (quoting
Commonwealth v. Lesko, 15 A.3d 345, 374 (Pa. 2011)). “If counsel’s
chosen course had some reasonable basis, the inquiry ends and counsel’s
assistance is deemed effective.” Commonwealth v. Williams, 899 A.2d
1060, 1064 (Pa. 2006).
With regard to the second element, an appellant must show that:
[I]n light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it. We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect [the] defendant’s interests.
Commonwealth v. Buska, 655 A.2d 576, 582-83 (Pa. Super. 1995).
Generally, trial counsel has broad discretion regarding matters of trial
strategy, including whether or not to impeach a witness, and a defendant is
not entitled to appellate relief simply because a chosen strategy is
unsuccessful. Id. at 582. “The test is not whether other alternatives were
more reasonable, employing a hindsight evaluation of the record.” Id.
Here, trial counsel testified at the PCRA hearing that the defense
strategy was for Campbell to concede involvement in the attempted robbery
and conspiracy to commit robbery, but deny involvement in the homicide.
N.T. PCRA Hearing, 1/30/17, at 58, 80-81. Trial counsel’s theory was that,
after Campbell was unable to open the door of Basilone’s Bar, he removed his
mask and argued with Stewart that the robbery was off, concluding the
attempt and demonstrating Campbell’s intent not to engage in further crimes.
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Id. at 42, 58, 80-81. Prior to trial, trial counsel discussed this strategy with
Campbell, who agreed to “shift [their] case” from simply arguing that the
Commonwealth cannot meet its burden of proof to arguing that “[the jury]
should convict him for what he did and not convict him for what he did not
do.” Id. at 58.
Campbell claims that trial counsel was ineffective for failing to impeach
Kalenic regarding inconsistencies between his trial testimony and preliminary
hearing testimony concerning when Campbell fled the scene of the shooting.
Brief of Appellant, at 20-23. Specifically, Kalenic testified at a preliminary
hearing that Campbell ran from the alley after Stewart fired the third gunshot,
that Stewart followed Campbell, and that the two arrived at Kalenic’s house
at the same time. PCRA Court Opinion, 3/25/19, at 13. At trial, Kalenic
testified that following the shooting, Stewart and Campbell ran towards his
house together and arrived together. Id. at 12.
We agree with the PCRA court that trial counsel had an objectively
reasonable basis not to impeach Kalenic regarding this inconsistency.
Critically, trial counsel had elicited the desired information from two
independent witnesses, Everett McClean and Gary Thomas; both McClean and
Thomas testified that they saw two separate runners flee from the scene at
different times. N.T. PCRA Hearing, 1/17/13, at 43, 70. The witnesses’
description of the men’s clothing supported Campbell’s assertion that he fled
the alley before Stewart. Id. at 43. Trial counsel testified at the PCRA hearing
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that he made a “split-second decision” not to impeach Kalenic on this issue
because he felt the information concerning who ran first was more compelling
to the jury coming from McClean and Thomas. Id.
At trial, counsel cross-examined Kalenic extensively, consisting of
approximately 70 pages of trial transcript. See N.T. Trial, 11/20/13, Vol. I,
at 406-58, 464-85. Accordingly, trial counsel believed that he completely
discredited Kalenic’s testimony, and that any additional impeachment would
be unnecessary. N.T. PCRA Hearing, 1/17/13, at 42-43. Furthermore, if trial
counsel cross-examined Kalenic on this point, and Kalenic testified
consistently with McClean and Thomas, it would have bolstered Kalenic’s
credibility on other facts unfavorable to Campbell. See PCRA Court Opinion,
3/25/19, at 13-14; Second Amended Petition for PCRA Relief, 1/27/17, at 6
(Kalenic identified Campbell and Stewart as the actors, placed them at the
scene, witnessed the shooting, observed Campbell and Stewart fleeing the
scene, and was present in C.V.’s vehicle with them afterwards).
Because trial counsel had multiple, reasonable bases for not impeaching
Kalenic with his prior inconsistent statement, Campell’s ineffective assistance
of counsel claim on this point fails. Williams, supra, at 1064.
Campbell’s remaining claims relate to trial counsel’s failure to impeach
C.V. at trial. Specifically, Campbell asserts that trial counsel was ineffective
for failing to cross-examine C.V. on her prior inconsistent statements, her
conviction for receiving stolen property (crimen falsi), her probationary status
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at the time of trial,8 and her grant of federal immunity at the time of trial in
exchange for testimony on related crimes involving Campbell. Brief of
Appellant, at 24-32. We agree with the PCRA court that, although these claims
have arguable merit, Campbell has failed to prove by a preponderance of the
evidence that trial counsel had no reasonable basis for choosing not to
impeach C.V. during cross-examination.
Trial counsel testified at the PCRA hearing that the defense team was
“happy with [C.V.’s] testimony,” which they felt was “very pro defense.” N.T.
PCRA Hearing, 1/17/13, at 14, 26, 68, 72. Specifically, C.V. testified that
when she picked Campbell up on the night of the murder, Campbell had a
normal tone of voice, was not out of breath, did not admit to any crime, and
did not appear nervous, excited, or scared. N.T. Trial, 11/20/13, Vol. I, at
508-09. She further testified that she did not see any blood or any weapon
on Campbell, and that none of the defendants was wearing clothes consistent
with the actors captured on video surveillance. Id. at 508-12. Trial counsel
felt that the only negative aspect of C.V.’s testimony was that it placed
Campbell within a few blocks of the crime scene after the shooting, which
alone did not establish Campbell’s guilt. N.T. PCRA Hearing, 1/17/13, at 30,
8 “The parties stipulated at the evidentiary hearing that [C.V.], who was called as a Commonwealth witness at trial, had entered a guilty plea to receiving stolen property and was sentenced to two years[’] probation on December 1, 2011, and that she was on probation for two years when she was called to testify at this trial in November of 2013.” PCRA Court Opinion, 3/25/19, at 6 n.1.
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72. Trial counsel testified that his strategy was to “not beat [C.V.] up too
much” because her testimony was generally favorable to Campbell. Id. at 26,
72. Trial counsel also believed the jury would find C.V. sympathetic because
she was pregnant at the time of trial, and he feared that vigorously impeaching
her might have predisposed the jury against Campbell. Id. at 72-76.
In addition to this general approach to the cross-examination of C.V.,
trial counsel articulated specific, reasonable bases for not impeaching C.V. on
her prior inconsistent statements. C.V.’s prior inconsistent statements,
relating to various contacts she had with Campbell on the night of the murder,
were contained in a recorded interview with police and a transcript of
proceedings before a federal grand jury. Second Amended Petition for PCRA
Relief, 1/27/17, at 5-6. Trial counsel testified that he did not use the police
recording to impeach C.V. because that interview contained statements that
were “extremely negative” for the defense. N.T. PCRA Hearing, 1/17/13, at
81. Specifically, C.V. stated in that interview that Campbell and Stewart
appeared nervous and acted strange on the night of the murder. Id. If trial
counsel had impeached C.V. with statements from that interview, he would
have opened the door for the Commonwealth to introduce the entire
recording, which trial counsel felt would be more damaging to Campbell. Id.
Moreover, in that recording, C.V. admitted that she had been lying to the
police about seeing the defendants on the night of the murder and began
crying, which trial counsel feared would further predispose the jury against
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Campbell. Id. Thus, trial counsel had a reasonable basis for not impeaching
C.V. with her prior inconsistent statements from the police interview.
Trial counsel had a similar, reasonable basis not to impeach C.V. with a
prior inconsistent statement from the federal grand jury proceeding. Again,
trial counsel sought to avoid opening the door for the Commonwealth to
introduce the entire transcript of the proceeding, which would have revealed
that Campbell was under federal investigation for multiple robberies involving
the use of weapons. Id. at 75. Trial counsel, who had represented Campbell
since he was a juvenile, was representing Campbell in connection with some
of those cases. Id. at 74-75. Trial counsel testified that he was comfortable
with C.V.’s favorable testimony, and that his decision not to impeach her using
the federal transcript was matter of “damage control.” Id. at 76.
Finally, we agree with the PCRA court that trial counsel had a reasonable
basis for choosing not to impeach C.V. through her crimen falsi conviction,
probationary status, and grant of federal immunity at the time of trial. Trial
counsel did not recall knowing at trial about C.V.’s crimen falsi conviction, that
she was on probation at the time of trial, or that she had received a grant of
federal immunity prior to trial. Id. at 75-76. However, trial counsel explained
that, “based upon [his] assessment of [C.V.’s] testimony” at the time, he
would not have used any of that information to attack C.V.’s credibility for the
reasons set forth above. Id. Namely, her testimony was pro-defense, she
was a sympathetic witness, and he did not want to predispose the jury against
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Campbell either by vigorously impeaching C.V. or by opening the door to the
information from the federal grand jury investigation. Id.
Campbell has failed to establish that trial counsel lacked an objectively
reasonable basis for his decisions not to impeach C.V. or Kalenic in the
manners specified above. Accordingly, trial counsel cannot be deemed
ineffective, and Campbell is entitled to no relief. Williams, supra at 1064.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/10/2020
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