Commonwealth v. Barnett, 121 A.3d 534

Background

On Sept. 8, 2001 Robert Barnett and his son robbed an 84-year-old restaurant owner, forced him to open the safe, and Barnett fatally shot him; Barnett later confessed to police and made admissions to others.
Police arrested Barnett Oct. 16, 2001 after a traffic stop for unrelated offenses; officers recovered cash ($1,300) and Barnett fled from police.
At trial Barnett was convicted of first-degree murder, robbery, burglary, conspiracy, and firearms offenses and sentenced to life plus additional terms.
Barnett’s original direct appeal was waived for an insufficient brief; he pursued PCRA relief arguing ineffective assistance, which led to reinstatement of direct appeal rights after Commonwealth v. Holmes allowed waiver of PCRA review to pursue ineffectiveness claims on direct appeal.
On remand Barnett raised multiple ineffective-assistance claims (trial and appellate counsel), challenging admission of flight/evidence from the unrelated arrest, prosecutorial summation and jury instruction on accomplice liability/specific intent, tacit-admission evidence, testimony about an unrelated robbery, and counsel’s advice concerning right to testify.
The Superior Court affirmed, finding counsel litigated many of these matters, any trial-court evidentiary errors harmless given overwhelming untainted evidence, and no deficiency or prejudice under the Strickland test.

Issues

Issue	Barnett's Argument	Commonwealth's Argument	Held
1. Admission of flight and cash from unrelated Oct. 16 arrest	Admission of flight and cash suggested consciousness of guilt for homicide; counsel ineffective for failing to exclude or explain context	Trial counsel moved in limine and objected; court excluded some details; admitted flight and cash as probative; any error goes to weight, not admissibility; harmless given other evidence	Counsel not ineffective; admission (if erroneous) harmless beyond reasonable doubt; conviction stands
2. Admission of $1,300 as "sudden wealth" and failure to request instruction that charges were dismissed	Counsel failed to obtain limiting instruction that the seized money/charges were unrelated/dismissed, prejudicing jury	Other evidence of sudden wealth (cash car purchases, admissions) independently admissible; counsel did seek exclusion; appellate remedy reinstated	No ineffectiveness; any trial error harmless because untainted evidence overwhelmingly supports guilt
3. Prosecutor's summation and jury instruction on accomplice liability/specific intent	Prosecutor and instruction allowed imputation of specific intent to kill from accomplice acts; counsel ineffective for not objecting	Prosecutor argued Barnett was shooter; jury instructions read as a whole required Barnett personally have specific intent to kill	Summation contained imprecise language but context showed prosecutor argued Barnett was shooter; jury charge correctly required specific intent; no prejudice
4. Use of son’s statement ("you didn’t have to shoot him") and tacit admission rule; confrontation clause	Admission of co-defendant/son’s statement via Walker and emphasis on Barnett’s silence violated confrontation clause; counsel ineffective for not preventing use	Tacit-admission doctrine permits using defendant’s silence/reactive conduct (not the out-of-court statement) as evidence; counsel moved to exclude and obtained limiting instruction; Crawford not controlling under presented rationale	Counsel not ineffective; issue presents complicated tacit-admission precedent but court found counsel litigated it and instruction limited use; no actual prejudice
5. Testimony about unrelated Plymouth Meeting Mall robbery and composite sketch	Testimony identifying resemblance of Appellant’s son to unrelated surveillance was irrelevant and prejudicial; counsel ineffective for not preserving appeal	Trial counsel objected; trial court gave a cautionary limiting instruction; Commonwealth argues no prejudice	No ineffectiveness; objections were made and instruction ameliorated harm; trial court did not err sufficiently to show prejudice
6. Counsel’s advice re: right to testify (prior convictions, unrelated arrests)	Counsel misadvised Barnett about admissibility of prior firearms convictions and other arrests, causing Barnett to waive testify without knowing/informed choice	Trial counsel testified he discussed risks and believed defendant would fare poorly under cross-examination; any advice was reasonable trial strategy	No ineffectiveness: counsel’s testimony supports that he advised properly and made strategic choice; Barnett failed to show prejudice

Key Cases Cited

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) (permitted waiver of PCRA review so trial ineffectiveness claims may be raised on direct appeal when good cause exists)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel: deficient performance and prejudice)
Commonwealth v. Flanagan, 854 A.2d 489 (Pa. 2004) (discusses limits on imputing accomplice liability for first-degree murder)
Commonwealth v. Bennett, 57 A.3d 1185 (Pa. 2012) (an accomplice must possess requisite mens rea to be convicted of first-degree murder)
Commonwealth v. Molina, 33 A.3d 51 (Pa. Super. 2011) (en banc) (addresses limits on using pre-arrest silence/tacit admissions in summation)
Commonwealth v. Story, 383 A.2d 155 (Pa. 1978) (harmless-error framework assessing whether untainted evidence independently establishes guilt)