Com. v. Fulton, A.
2326 EDA 2015
| Pa. Super. Ct. | Feb 7, 2017Background
- Fulton was convicted after a jury trial of conspiracy, possession of an instrument of crime, simple assault, robbery, and impersonating a public servant for a home‑invasion robbery; sentence: 5–10 years state prison plus 10 years probation.
- Fulton previously had a first jury trial that ended in a mistrial when a police witness mentioned Fulton’s “arrest record.”
- Fulton filed his first PCRA petition alleging trial counsel was ineffective for (1) failing to raise a double‑jeopardy bar to retrial after the mistrial, (2) failing to request a pre‑preliminary‑hearing lineup, and (3) failing to object to a portion of the jury charge regarding identification.
- The PCRA court dismissed the petition without a hearing; Fulton appealed and this Court reviewed the dismissal for legal error and record support.
- The courts relied on the trial record: the trial judge found the prosecutor did not intentionally elicit the arrest‑record statement; the victim identified Fulton quickly from a photo array within a week of the robbery and later positively in court; fingerprints tied Fulton to a document used in the break‑in.
Issues
| Issue | Plaintiff's Argument (Fulton) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| 1. Whether counsel was ineffective for not seeking to bar retrial on double jeopardy grounds after mistrial caused by witness mentioning arrest record | The DA (or police) deliberately provoked or intentionally elicited the reference, so retrial should be barred | The reference was an inadvertent “misspeak”; no intentional prosecutorial misconduct to deny a fair trial | Counsel not ineffective; double jeopardy bar not available, claim lacks arguable merit |
| 2. Whether counsel was ineffective for not requesting a lineup before the preliminary hearing | In‑court ID was unreliable/tainted; a lineup could have prevented misidentification | Photo‑array ID was made quickly, within a week, victim was confident; independent support from latent fingerprint evidence | Counsel not ineffective; in‑court ID had reliable independent basis, no prejudice shown |
| 3. Whether counsel was ineffective for not objecting to the trial court’s identification instruction/prefatory remark | Court’s prefatory comment improperly suggested a view on guilt and invaded jury’s province | The remark explained defense theory and was followed by standard, full jury instructions emphasizing jury’s sole fact‑finding role and burden of proof | Counsel not ineffective; charge read as a whole was accurate and did not prejudice Fulton |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing performance and prejudice standard for ineffective assistance of counsel)
- Pierce v. Commonwealth, 527 A.2d 973 (Pa. 1987) (Pennsylvania formulation of Strickland: arguable merit, no reasonable basis, and prejudice)
- Commonwealth v. Basemore, 875 A.2d 350 (Pa. Super. 2005) (double jeopardy and prosecutorial conduct must be deliberate with intent to deny a fair trial)
- Commonwealth v. Kearns, 70 A.3d 881 (Pa. Super. 2013) (gross negligence by Commonwealth insufficient to invoke double jeopardy bar)
- Commonwealth v. Edwards, 762 A.2d 382 (Pa. Super. 2000) (assessment of reliability of identification testimony under totality of circumstances)
- Commonwealth v. Burton, 770 A.2d 771 (Pa. Super. 2001) (factors for evaluating eyewitness identification reliability)
- Commonwealth v. Baker, 963 A.2d 495 (Pa. Super. 2008) (jury charge reviewed as a whole; trial court has broad discretion)
- Commonwealth v. Jones, 912 A.2d 268 (Pa. 2006) (counsel not ineffective for failing to raise meritless claims)