Com. v. Jones, T.

Opinion

J-S49023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TREMAR JONES,

Appellant No. 3078 EDA 2013

Appeal from the PCRA Order October 4, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002910-2007

BEFORE: OLSON, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 17, 2014

Tremar Jones appeals from the order entered October 4, 2013,

denying him relief, without a hearing, on his petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. In this appeal, Jones

argues the PCRA court erred in dismissing his petition without a hearing.

Accordingly, he seeks a remand to give him the opportunity to present

evidence supporting his claim of ineffective assistance of counsel. Following

a thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm on the basis of the PCRA court’s opinion.

Our standard of review for the denial of a PCRA petition is well settled.

“On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in J-S49023-14

the light most favorable to the prevailing party at the PCRA court level.” Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 131 (2012) (citation omitted). “The PCRA court's credibility determinations, when supported by the record, are binding on this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259 (2011) (citation omitted). “However, this Court applies a de novo standard of review to the PCRA court's legal conclusions.” Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014).

Additionally,

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. Id.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

Jones raised two claims in his Pa.R.A.P. 1925(b) statement of matters

complained of on appeal. They are:

Appellate counsel was ineffective for failing to claim that this Court erred by denying trial counsel’s motion for a mistrial after inadmissible hearsay was elicited from Amir Sanchez (Sanchez). Petitioner contends that this Court should have granted an evidentiary hearing pursuant to Pa.R.Crim.P. 908 (908 Hearing).

PCRA Opinion, 2/10/2014, at 3.

The PCRA court then cogently detailed why Jones was not entitled to

relief as a matter of law regarding his claim of ineffective assistance of

counsel and the underlying evidentiary issue. That analysis clearly

demonstrates that there are no issues of fact to be resolved and that the

claim is without support. Therefore, the PCRA court properly dismissed the

petition without first conducting an evidentiary hearing.

-2- J-S49023-14

The parties are directed to attached a copy of the PCRA courts opinion

of February 10, 2010, in the event of further proceedings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/17/2014

-3- Circulated 11/20/2014 02:47 PM

PHILADELPHIA COURT OF COMMON-PLEAS CRlMINALTRlAL DMSIQN

COMMONWEALTH CP·51·CR·0002910-2007 .

v. Superior Court No.: . , .... 3078 EDA 2013 .

TREMARJONES "~ . , Sarmina,J • . Febtua.y 10, 2014 FILED FEB 102014 OPINION Criminal Appeals Unit Rrst Judicial District 01 PA PROCEDURAL HISTORY

On June 30, 2008, following a jury triall befote this Court, Trem.ar Jones (hereafter, ,-.,' ! Ii<." petitioner) wu convicted 'of murder of the third degree (F-l), mcanns Qot to be ca.tried without It • license (F-3), and possessing instrwnents ,o f crime (PIC) (M_l).l Sentencingwu defated until

September.29, 2008, on which date this Court sentenced petitioner to an aggregate teon o( not less

than 13 y~s nor mOre than 27 years confinement, to be followed by 23 years of probation,'

On October 2, 2008, petitioner filed post-sentence tnotions, which this Court denied?D

]a.nury 30, 2C09. Do. Feb~:u:y 2, 2009, petitioner filed a timely notice of appeal. On February 16,",

2010, the Superior Court affitmed petitioner's judgments of ~eot~cc.~ On March 16, 2010,

.,., <

I Petitionu wu repftSetlted 2t trill. by O,.ruel Greene, Esquire.

118 Pa.C.S. §§ 2502{c), 6106{a), 1..lld 907(2), mpectively.

·S AJ to the conviction fot murder of the third degree, petitioner W'u sentenced to a tem!. of not leu than 12 rem not more tb:an 25 yeau confinement. to be: followed by 15 yean of probltion. A. to the conviction for 6.re:unfl not to be anied without a Iicenle, tN. COUrt sentenced petitionc:r to a c:on.ecutive term of not len th1ll one year nor more tha.a [WO yun tonwp:ment, to be followed by five years of probation. A. to the: tonvictioo for PIC, thi. Court lentenced petitioner to • COIlltcUtiVC tean of three yean of pIobation.

4 COa\n)onwc;al6 y, lonu, No. 375 EDA 2009, slip op. (pa.Supct., Feb. 16,2010) (memonndwn opinion).

"

< APPENDIX LOWER COURT OPI::::.N_I_O_N_ __ _ _ _, Circulated 11/20/2014 02:47 PM

petitioner: filed a petition for allowance of appeal, which was denied by OUI Supreme Court on

August 12, 2010.'

, On September 19, 2011, petitioner filed t. timely pro Ie petition punuant to the Post-

Conviction Relief Act (pCRA).d Counsel was appointed' and, on March 18,2013, filed an amended

. petition on petitioner's behalf. The Commonwealth r:esponded on July 8, 2013 with'a motion to ." dismiss. After: considering the pleadings of the parties and conducting 2Jl independent review, this

COUIt found that both of petitioner's claims bcked merit On August 29, 2013. thit Court sent ,

petitioner Ilotice of its intent to deny his petition without 11. hearing pursuant to Pa.R.Crlm.P. 907

(907 Notice); on October 4, 2013, this CO\ut denied and dismissed petitioner's petition. Petitioner

filed :I. timely notice of appeal.

PACTS'

Petitioner shot and killed Bahir Roberts (Roberts) on November 16, 2006. Note. 0(. ' Tc.stiinony (N.T.) 6/25/2008 at 86-88. Petitioner and ~obe.rts wexe friends from the same 'neighborhood in West Philadelphia. N.T, 6/26/2008 at 114-15. But priot to the day of the ' , sho-,ting. two incidents had Cleated a conflict between the young men, .uL. at 214-17. The first incident, which had occuned in 200S, concerned some items stolen cram a vehicl~· that , " belc'nged to petitioners friend. l5L at 216-17. Though petitioner had no proof of who Itole the items, he slUpected Roberts. IQ.. at 217. The second incident, which bad occua:ed on . November 14, 2006, less than forty-eight hours before the shooting, concemed a drug transaction. lsL. at 214-15. On that day. petitioou had given Roberts several tableu of ' Xa:o.ax, but after taking them, the victim was dissatisfied with the quality of the drugI. ld...

Shortly before midnight on November 15, 2006, at or a'ear the 5300 block of Hazelhurst Street in Philadelphia, petitioner, Roberts, and several mutual acqul1imant;es were talking on the sidewalk.. N.T. 6/26/2008 at 211. Petitioner was carrying a small bag of marijuana aod ,a

l CQmmonwtal,rb v JOOCl, No. 106 EAL 20l0,Ilip op, (p:t..• Aug. 12,2010) (memou.ndum opinioo).

• 42 PLC.s. S§ 9541-9546,

Scott O'Kc:cCe, Esquire. had been :t.ppointed to represent petitioner on coU:l.tew aruck. HOIllt9U, inJ~~ 7 Origin.tlly,J. 2012, Mr. O'Keefe bee:ame a judge in Phihde1phi:t.'. Municipa.l Court; be withdrew (rom thia cue r.nd 01vid Rudcmtc:in, . B.quire waa .ppointcd in hi. nClld,

I Tbia Coun recites the facti u presented in it; M:t.y 20, 2009 opinion pursuant to Pa.R..A.P. 1925(.).

2 Circulated 11/20/2014 02:47 PM

TEC-9 semi-automatic pistol.' ld. at 263-65. At some point, Roberts asked petitioner if he had any marijuana.. ld... at 213. Petitionez passed a small bag of marijw.na to Robe~ who smelled it:md said, "It's me," meaning that be would be keeping the bag without paying for .it 1st at 213-14. PetitioDez dem2!lded payment for the bag and Robe.rts refused. .but returned the bag to petitioner. hi

Petitioner and Roberts then addressed the two prior incidents ~eferenced above. ld..lt 214- , 16. Roberts mentioned the inciden:t from the previous day involving the }Unax and expres,ed his di'ple"w;e with the quality of the drugs. N.T. 6j26/2008 at 214·15 . . Petitioner mentioned the incident from 2005 in which his friend's car was broken into, and accused Roberts of committing that crime. Ii. at 216-17.

Petitione.z: started walking in one direction when Roberts got on his bicycle and begm ridi,ng away in the opposite direction . .tiL. at 220-22. Robt!ts then turned and began riding qack towards petitioner. Ii. at 223. Petitioner ta.l.led out, waming Roberts not to eom~ any closer. 1st Roberts continued; petitioner drew his TEC9 and fired. Ig. at 223. After: firing, petitioner: left the scene and threw his weapon in a sewet drain. NT. 6/26/2008 at 227.

~m(:rgency responders anlvcd at the scene and took Roberts to The HO!piw of the · University of Pennsylvania, where he was pronounced d~ad from 2 gunshot wound to the ,,.. che" at 12:11 A.M. N.T. 6/24/08 at 142-43.

LEGAL ANALYSIS

Petitione.t labeled two issues.in his Statement ofMatt~rs Compl.ai.ned of on Appeal ·puri~t

to Pi.R.A.P. 1925(b) (1925(b) Sutemeot); this Court will.ddIess both issue, together."

Appellate counsel was ineffective for Cailing to claim that this Court erred by denyina: trial counsel's motion (or a mistrial after inadmil8ible heanay was elicited from Amir Sanchez ,(Sanchez), .? etitioner contends that thii Coun should have granted an evidentiary hearine punuant to Pa.R.erim.p. 908 (908 Heari"l:)' . . (, . In order to be eligible (or PCRA relief, petirioner: must prove, by. a prepondertnce oC the

evidence, that his conviction or sentence resulted from one or more o( the following circuoubUlcel:

'Petitioner testified that he had plUchued the weapon illeg2lly the yeu before, and curled it fOf ptotection becaule hi. neighborhood 1,V:J.J dange[ou •. N.T. 6/26/2008 at 208·10.

IG In hU fint iuue, petitioner .t21es uut this Court en:ed by d.itmiuing petitionee'. petition .without.bolding ItI evideotiuy baring. .. petitioner would have been able to prove th2t appellate counsd was ineffective for'(ailing to claim flat tbi" Court itIed by denying trial counter. motion (Of I mhui:a1aftu inadmiss.ible hcanty W:U elicited (,am Amir . SltIchez (Sa.achez). In hi. second i",uc" petitionultsw that thi. Court cued by denyma petitioner's petition, .. he . plOwd tblt 'PF.u.t.. COWllcl wal incffective for f1iling to claim that this Court em:d by denying trial counsd', motion (or a aWuUl .fiel in..drniJ.ible heun.y Wllt elicited (,am Sanchez. AI trial counsel', motion (or":l miu:rw wu c:oneetly denied, both' claim, may be resolved togethet.

3 Circulated 11/20/2014 02:47 PM

, (~ A violation of the Constitution of !his Commonwealth oz: the Co.ostitution or lawl of the United States which, in the cizcumstances of the particular case, so under:mine~ · the truth- detenn.ining process that no reliable adjudication of guilt or innocence cou1d hue taken pil.ee.

(u) Ineffective :lssistance of counsel which, in the circumstances of the patticulaz cuc,·so· undermined the trorh-detcnnining process that no reliable adjudication of guilt or innoc~nce could have taken place.

(Iii) A plea of guilty unlawfully induced whece the cireumstances make it likely tlu.t the ' inducement caused the petitioner to plead guilty and the petitioner is innocent.

Qv) J'be improper obstruction by govcnuneoc officials of the petitioner's light or IIppcAl whett a meritorious appealable issue existed aDd was properly p:teserved in the trial court (v) Deleted.

(Vl) The um.vailability at the time of ~ of exculpatory evidence that bas subsequently become available and would have changed th~ outcome of the trial if it had been introducc:d.

(vii) The imposition of a sentence: greater than the.lAwful maximum.

(vilij A proceeding in :t tribunal without jurisdiction.

42 P"C.S. § 9543.

, ' Trial counsel is presumed to have been effective; petitioner heu!! the burden to prove "

otheIWise. CominonweaJth v. Mitbwd, 70 A.3d 862, 867 (pa.Super. 2013). In order to obtAin ,eli.f

bued on a claim of ineffective assist!lnce of counse~ a petitioner must establish:

(1) the underlying claim has arguable merit; (2) no tea,onable basis existed for couo,~'s actions or failuteto aClj and (3) petitioner suffered prejudice as a relUlt of counsel', error such that thue i!!11 reasona.ble probability that the remit of the proceeding would have been different absent such etter,

At tri:u. Willie Holmes (Holmes) testified that he did not sec petitioner interact with, .

threaten, or sboot Roberts in the moments leading up to Roqetts' death. The trial prosecutor

comonted Holmes about a priOI inconsistent sutement that he had made to a friend, Sanchez.

After disclosing to Holmes the contents of the statement that he had previously made to Sanchez,

and ploviding him 1.1\ opportunity to explain or deny making the statement, the prosccutcI Wled 4 Circulated 11/20/2014 02:47 PM

Sanchez to impeach Holmes. Sanchez's testimony was admissible pursuant to Pa..R.E. 613(b) IS

extrinsic evidence for impeachment purposes. As Sanchez's testimony was propetlyadmitted,

a~pdlJ.tc counsel was not ineffective for failing to cla.im that this Court Cl:fcd by denying petitionds ".

mlsttW. motion.

A witness may be impeached with extrinsic evidence of a prior ":tconsistent statement,

provided that three requir:ements are satisfied:

(1) the statement. if written, is shown to, or if not wri~, its contents ate disclosed to; the witness; (2) the witness is given an opportunity to explain or deny the naldOg of the atatement: and (3) an adverse patty is given an opportunity to question the witness.

P•.R.E.613(b}.

In Conunonwealth v. Cba.tk;stQn, the Commonwealth called Nashua Sanden (Sanous) to

testify. 16 A.3d 50S, 509 (p• .super. 2011). SlUlden aeknowledged that she Wa3 f.mili."with the

n~borhood in which the crime occw:red., and that she knew both the victim and the defendant .. 1d.. The pr~ecutor a3ked Sanders whether she had had a conversatio~ -..0th the victim', mother, ·Clan. Stanton, infoaning Ms. Stanton that. about :a. week before the crime, the defendant told

Sanders th~t he pWmed to rob the victim. .llL. Sandeu denied ever having had stich a conver.ation

with Ms. S~nton. ld.. The trial court permitted the Commonwealth to call Ms. S!2!lton to testily

tegucling her conversation with Ms. Sanders. I.d. at 527. The Superior Coun held that the trial

. court propwy admitted Ms. Stanton's testimony as extrinsic evidence to impeach Ms. Sanden

punuant to P•. R.E. 613(b}'

Subsection one of the rule was complied with because the Commonwealth disclosed to Ms. Sanders the contents of her statement to Ms, Stanton. The Coaunonwealth alao complied with subsection two because it asked Ms. Sanders jf she made the statement and she denied making it. Fin2lly, subsection duee was satisfied, as the defense was given an opportunity to quettion Ms. Sanders. Therefore, Ms. Stanton', testimony in which she relayed M•. Sandm' priOI inconsistent statement was properly admitted for purposes of impeachment

5 Circulated 11/20/2014 02:47 PM

"I . in Charleston, in the case Jllb )ildia, the Commonwealth complied with each subsection As . of \" '1,' Po,R.E. 613(b) and this Court properly detennined that Sanehez's testimony was .dmi"ible to

.impeach Holmes. On cfu:ect ex~tion, Holmes stated tb2t he beud gunshots, saw Robem

stumble off of a bicycle. :a.ttempt to run, and thep fall to the gtound. N.T. 6/25/2008 at 37. The . .

~ prosecutor Bsked Holmes ~hetber he had seen anyone close to Roberts prior to hearing the

shQu. Holn;les repeatedly denied having seen Roberts interact with anyone else: ; 1' 1 'A'pA COELHO: And was anybody else near "Ho~s" house when you saw Babit tiding his :·' bike in the street? r.,1' , . MR. HOLMES: No . ADA COEIRO: Nobody else was thetel MR. HOLMES: No. ADA COEIRO: You didn't see Kyle? MR. HOLMES: No. ADA COELHO: You didn't ,ee "Da D."? MR. HOLMES: No. MJA COEIRO: You didn't see Ttetml [petitioner]? MR. HOLMES: No. .. '; ~ ·.t38, , \~

'\ ADA COELHO: Okay. And when you got OVe!' to Mr. Roberts, was there anyone else " there besides yourself and Mr. Roberts? MR. HOLMES: Some girl. ADA COEIRO: Some gUl. Olooy. You didn't see Kyle? MR. HOLMES: No. ADA COELHO: You didn't see him run from the scene at all? MR. HOLMES: No. ADA COELHO: Okay. How about uDa 0201'; did you see uDa Da" comc· up on the street- MR. HOLMES: No. ADA COELHO: - from Ruby Street? MR: HOLMES: No. ADA COELHO: You didn't see '1)20 Da" on Ruby Street either? MR. HOLMES: No. ADA COELHO: How about Ttemu; did you see him run nom "Hoys" steps .d~ Ruby . Street? . . MR. HOLMES: ·No. THE CQURT: Do you know the girl'. nome? MR. HOLMES: No. ADA COELHO: Okay. So at DO point in time did you see Bahir and TIemaI a.r~K? MR. HOLMES: No. ADA COELHO: No. At any point in time did you get in between Ttemu and Bahit- MR: HOLMES: No. 6 Circulated 11/20/2014 02:47 PM

ADA COELHO: - and tty and break ir up? MR. HOLMES: No. ADA COELHO: You dido't do that? MlLHOLMES: No. ADA COELHO: So you ceruinly dido't see Bahir reaching for anything, did you? M.'t HOLMES: No.

I.d. at 41-43.

On re-direct c.xaJnination, ADA Coelho asked Holmes whether be-had previoUlly Dl1de a

statement to a mend, Sanchez, 2.bout Mving seen Robem engaged in a heated argument with

petiti~ner prior to the shooting. ADA Coelho questioned Holmes about the details of the statement

·that be bad nude to Smchez:

• ADA COEUiO: And did you ever tell any of YQur friends about what you saw or witneased thaI Dight? MR, HOLMES: No. ,., ' ADA COELHO: Nobody? MR. HOLMES: No. ADA COELHO: Never told ,nybody? MR. HOLMES: No. ADA COELHO: So you never told an individual that you know by the name oC Amir that" Bahir and Tr~ were arguing, lu.vingverbal exchanges? MR. HOLMES: No. MR. GREENE: Objectioo. 1HE COURT: Ovcuuled. ADA COELHO: And you never said that Tremu pulled out his TEe and told Bahit I ~" sbouid pop you right now? MR. HOLMES: No. . ' ,' ADA COBIJ-:lO: Never told -anybody that? MR. HOLMES: No. ADA COElRO: And that he said that, in NCt, two times to· Babir. MR. HOLMES: I didn't tell that to anybody. ADA COELHO: Uh-huh. Aod that Bahir kepIsaying,. "You ain't going to shoot - do • . shooting. You ain't going to do anything. You're a hitch." You didn't tdl Ami..t that tlat's · what Bahir said to Tremar before he sbot him? MR. HOLMES: No.

I.d. at 75-76. ! ~. As required by Po.R.E. 613(b)(I), ADA Coelho "disclosed" the contents of Holme,' prio, . '. st:ltcment to him. ADA Coelho provided Holmes 2.n "opportunity to explain or deny the making of

the .bton)eot" u 'equired by Po.R.E. 6B(b)(2). Holme. ehose to deny having made the st..emeril 7 Circulated 11/20/2014 02:47 PM

I I' ~1 •

And, J.sdy, Ul "adverse patty [was) given Ul opportunity to question the witness," Aft" the

prosecutor qUe!tione:d Holmes about whether be DlJ.de IUch a :statement to Sanchez, tbU Court

asked Mr. Greene whether be wanted to rc-C!Oss Holme;. N.T. 6/25/2008 at 78. "Anything else?

.Any recross, Mr. Greene?" lsi. Mr. Green~ chose not to do so. llL

Once (1) the con~nts of Holmes prior inconsistent statement to him were disclmed to hUn,

(2) an OPFortunity to explain or deny the statement was provided, and (3) the adverse patty was

given the opporrunity to que:stion Holmes, this Court permitted the tJ::W prosecutor to call Sanchez j 1 to impeach Holmes by extrinsic evidence. When he took the stand, 5:ulchez divulged the detail, of

Holmes' prior statement:

ADA COELHO: Okay. Now, in addition to speaking with Trem:u: about w~at happened to Bahir whcm he was shot and killed, did you also speak with Willie? MR, SANCHEZ, Yes, ADA COELHO, All rigbL And did Willie tell you wha, be ,awl ~ SANCHEZ, Yes,

, ." '; ADA COELHO, Okay, And what did Willie tell you? MR,. GREENE, Objeetion, ' TIlE COURT, Overruled, MR. SANC!iEZ, Willie told me, =, you know, Bahir had - 'you know, be b"ie&l!y ,aid wlut "Tte say. He said Bahir came down while they was all h,anging out. I believe it was TIeDl2.t, Little Da Da, and Hov. That's all the names that I know was down there It the time of the shooting, They was all on Hazlehurst, you know what I mean, ehilliog, you . know, out there laying; you know what I memf So he said Babit walked down. He laid BahU: looked like he was wetted, meaning smoking embalming fluid. You know, some peop1e.c:ill them clipped in cigarette with some type of fluid on there.that, you know, drive . these young boys crazy. ADA COELHO, Would th.t be PCP? M}(SANCHEZ: Yes , "' ADA COELHO: Oluy, Go ahead MR.' SANCHEZ; Like. that's why I say when be came down on some high S-H-I-T. Excuse 'my language. So he said Twnu was selling weed, He said Bahir said, ''Who gat the weed out?" And ~re said, "I got it right-here," So Bahir. you know, in th·e·neighborhood· sometimes in these neighborhoods, when we - when we pwchase drugs on the comer, we like to see the quantity and quality of the weed. So what I told - Tremar bad to buy a bag of weed, which Bahit smelled it, you know, said, you know what I mean, "Oh this be me," . ADA COELHO: What does tlut mean, '''This be me"? MR, SANCHEZ: Like, "I'm taking this b.ag of weed and I ain't paying for it." ADA COELHO: Okay. Then whAt hllppcned? ~ ~ANCHEZ, Um- ADA COELHO, Or then whot did Willie say? 8 Circulated 11/20/2014 02:47 PM I •

MR. SANCHEZ: Well, Willie then ,00 that- after that he .aid, 'Tre ,aid, "Man you ttying- like, wha~ you trying to play me, like? They exchanged word., They started o little ar~ent. You going - you gain&: to eive me - you ain't taking poth.iot &om me. Thit ia your second time." You know what I mean? So then Babir .keP.t call1na, ~ou ain't going to do noth.ini." And he said Tr~ar pulled -a TEe out and say, -,, "Yo, I'm going to pop you. Give that up." And Baw refused and said, "You a bitch. 1~~l3· You ain't going to pop noth.i.ng. You ain't .hooting nothing. You ain't tough/' And .. ~ he sa.id Trenu..r aimed the TEe. So once he aimed it, be shot - he heard shots, So Bahir "'\ stumbled a little bit to the bicycle. collapsed at the bicycle. And, you know, it was over (or '\\ him from the:e.

Is!. at 172-74 (empha.is added), This Court appropriately denied Mr. Greene's objection and permitted the Commonwealth

to impea.cb Holme! with extrinsic evidence of the st2tement that he had made to Sanchez. Shortly

aftu the above excerpt, Mr. Green requested to 2ddress this Court at sidebar. There. he riude a

motion for:l misttial. 1hU Court denied his motion, but agreed to provide a limiting.instruction to

the jury, This Court then instrUcted the jury that they could only consider Sanchez's testimony

ab~~t his.. conversation with H olmes to assess H olmes' credibility, N.T. 6/25/2008 :at 18t.8~.

This Court correcdy admitted S2Dc:hez's testimony punuant to P:a,R.E. 613(b) uid

appropriately insttUcted the jury on the limited scope for which the jw:y c~uld utilize the evidence..

Therefore, p'etitioner's claim that appellate counsel was ineffective for failing to rais~ thU issue with .

the Superior Court lacks ugu2ble merit and fails.

For the !oregoing reasons, this Court eoaectly denied 2.nd dismissed petitioner's petition and

the dismissal .hould be ,£finned,

BY TIlE COURT:

~