Com. v. Kimmel, S.
359 WDA 2016
| Pa. Super. Ct. | Nov 23, 2016Background
- Kimmel was convicted by a jury of nine offenses arising from three controlled purchases of heroin from him; undercover officers observed each buy and identified Kimmel via JNET photos and in-court identifications.
- He was sentenced to 3–6 years’ imprisonment; the Superior Court affirmed his judgment of sentence on direct appeal.
- Kimmel filed a pro se PCRA petition alleging ineffective assistance of appellate and trial counsel for failing to preserve/raise (a) insufficiency/circumstantial-evidence and weight claims and (b) erroneous admission of hearsay (out‑of‑court CI identification) and an unduly suggestive photo identifiation procedure.
- Appointed PCRA counsel filed a no‑merit letter and sought to withdraw; the PCRA court issued Pa.R.Crim.P. 907 notice and then dismissed the petition and permitted counsel to withdraw.
- The Superior Court reviewed the PCRA court’s opinion and affirmed, agreeing that (a) appellate counsel’s failure to press every issue does not create per se ineffectiveness and Kimmel failed the Pierce test, and (b) admission of the CI’s out‑of‑court identification statement was error but harmless given multiple independent officer identifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for failing to preserve/argue weight and hearsay issues on direct appeal | Counsel should have raised insufficiency/weight and hearsay issues; omission foreclosed appellate review and equates to failure to file a brief (presumed prejudice) | Counsel pursued other appellate issues; omission does not create per se ineffectiveness and defendant must satisfy Pierce three‑prong test | Denied — not per se ineffective; Kimmel failed Pierce (no arguable merit and no prejudice) |
| Whether admission of Sergeant Friscarella’s testimony recounting an undisclosed CI’s out‑of‑court identification violated hearsay rules | Admission of CI identification through officer violated Pa.R.E. 803.1(2) because CI did not testify and was not subject to cross‑examination; counsel ineffective for not preserving | Even if admission was erroneous, it was harmless because undercover officers independently identified Kimmel and testified in court | Counsel not ineffective on prejudice grounds; the hearsay error (if any) was harmless and did not undermine reliability |
| Whether the photographic (JNET) identification procedure was unduly suggestive | Procedure was unduly suggestive and likely to cause misidentification | JNET photo use is permissible; immediate officer observations and in‑court IDs sustained reliability | Denied — identification procedure not shown to create a substantial likelihood of misidentification; reliability established by officers’ observations and trial IDs |
| Whether the PCRA court abused discretion by dismissing without further relief | Counsel’s no‑merit and record required further proceedings | Record supported dismissal: no genuine material facts unresolved and no reasonable probability of relief | Denied — PCRA court’s dismissal affirmed as supported by record and law |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes performance/prejudice ineffective assistance standard)
- Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (framework for appellate‑ineffectiveness claim)
- Commonwealth v. Blakeney, 108 A.3d 739 (PCRA standards and dismissal without hearing)
- Commonwealth v. Wilson, 580 Pa. 439, 861 A.2d 919 (identification exception to hearsay requires declarant to testify)
- Commonwealth v. Halley, 870 A.2d 795 (failure to file requested direct appeal is per se ineffectiveness)
- Commonwealth v. Burton, 973 A.2d 428 (untimely or missing Pa.R.A.P. 1925 statement can be per se ineffectiveness)