Com. v. King, B., 2692 EDA 2014

Background

On Oct. 31, 2005 Brian King and co-defendant Tyreek Wilford approached a group, robbed five people, then attempted a separate robbery during which King shot and killed Steven Badie. Both were arrested; items from the robberies and the gun were recovered from King’s car.
Wilford pleaded guilty to third-degree murder and other charges and testified against King at trial; no sentence term had yet been fixed for Wilford at the time of trial.
At trial King conceded participation in the initial robberies but argued Wilford alone committed the murder; jury convicted King of second-degree murder, multiple robberies, conspiracy, and PIC; King received a mandatory life sentence for murder.
King’s convictions were affirmed on direct appeal; the Pennsylvania Supreme Court denied allowance of appeal.
King filed a pro se PCRA petition (later amended). PCRA court dismissed it; appointed PCRA counsel sought to withdraw under Turner/Finley, submitting a no-merit letter. The Superior Court independently reviewed the record, granted withdrawal, and affirmed the PCRA dismissal.

Issues

Issue	King’s Argument	Commonwealth / Trial Court Argument	Held
1. Suppression of search for lack of probable cause	Search of King’s car lacked probable cause and evidence should be suppressed	Issues were waived because they could have been raised on direct appeal and were not	Waived; PCRA relief denied
2. Suppress show-up identification as unduly suggestive	The post-arrest show-up identification was impermissibly suggestive	Issue could have been raised on direct appeal and was waived	Waived; PCRA relief denied
3. Limitation on cross-examining Wilford about life sentence exposure	King sought to elicit that Wilford faced life if he didn’t cooperate, to show motive to lie	Trial court limited some questioning; direct appeal already reviewed this claim and found no abuse of discretion	Previously litigated on direct appeal; not cognizable on PCRA
4. Admission of Wilford’s prior consistent statements	Counsel ineffective for not objecting to admission of prior consistent statements (or for failing to exclude them)	Trial strategy focused on impeachment; admission was permissible to rehabilitate credibility and within court’s discretion	No arguable merit; counsel not ineffective
5. Counsel conceded guilt to robberies in closing	Counsel improperly conceded King’s guilt on the robberies, amounting to ineffective assistance	Counsel reasonably conceded robbery given overwhelming evidence to focus on contesting murder culpability	Strategy was reasonable under Cousin; no ineffectiveness
6. Prosecutorial misconduct in closing (reference to penalty / misstating law)	Prosecutor referenced penalty and misstated law to prejudice jury	Claims were waived (not raised on direct appeal); record shows no reference to penalty and counsel objected to legal misstatements; court instructed jury on law	Waived or belied by record; no prejudice shown
7. Jury instructions inconsistent with verdict sheet / second-degree murder law	Charge conflicted with verdict sheet and law on second-degree murder	Instruction issues could have been raised on direct appeal and were waived	Waived; PCRA relief denied

Key Cases Cited

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (procedural requirements and standards for counsel withdrawal in collateral appeals)
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedural standards for no-merit letters when withdrawing from collateral appeals)
Commonwealth v. Daniels, 947 A.2d 795 (Pa. Super. 2008) (requirements for court review and agreement when PCRA counsel seeks to withdraw)
Commonwealth v. Cook, 952 A.2d 594 (Pa. 2008) (trial court discretion to admit prior consistent statements to rehabilitate witness when impeachment is anticipated)
Commonwealth v. Cousin, 888 A.2d 710 (Pa. 2005) (strategic concession to lesser offense can be reasonable and not per se ineffective assistance)