J. S45025/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

 : 

 v. : 

 : 

EDDIE RAY GRAY, : 

 Appellant : 

 : No. 1733 WDA 2015 

 

Appeal from the PCRA Order August 17, 2015 

In the Court of Common Pleas of Warren County 

Criminal Division at No(s): CP-62-CR-0000264-2012 

BEFORE: OLSON, DUBOW AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 22, 2016 

Appellant, Eddie Ray Gray, appeals from the August 17, 2015 Order 

denying his first Petition for relief filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S. §§ 9541-46, challenging the effectiveness of trial 

counsel. We affirm. 

The detailed facts of the underlying conviction are set forth in our 

disposition on direct appeal, and we need not restate them in their entirety. 

See Commonwealth v. Gray, No. 1503 WDA 2012 (Pa. Super. filed July 9, 

2013) (unpublished memorandum). However, relevant to this PCRA appeal, 

we note the following: 

 

*

 Retired Senior Judge Assigned to the Superior Court. 
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In early 2012, Appellant and his cousin, Jeremy C. Hoden, were 

imprisoned together at the same state correctional institution on unrelated 

cases. Over a two-month period, the men sent numerous extremely 

threatening and highly disturbing letters to the following participants in 

Hoden’s 2007 case: the two witnesses/crime victims; the judge who 

presided over Hoden’s guilty plea; the judge who denied Hoden’s PCRA 

Petition; the then-District Attorney; and the Assistant District Attorney who 

prosecuted the case. Each cousin sent at least one letter to each of the 

above-named participants, and the sender signed every letter and included 

his return address. Altogether, Appellant and his cousin sent fourteen 

threatening letters and two letters confessing to various unrelated offenses. 

Following a joint trial, a jury convicted Appellant and Hoden of four 

counts of Retaliation Against a Prosecutor or Judicial Official, three counts of 

Retaliation Against a Witness, Victim or Party, seven counts of Terroristic 

Threats, and one count of Conspiracy. The trial court sentenced both men to 

thirty-five and one-half to seventy-one years of imprisonment. This Court 

affirmed the Judgment of Sentence on direct appeal. Gray, supra. Our 

Supreme Court denied allowance of appeal on November 27, 2013. 

Appellant filed a pro se PCRA Petition on July 1, 2014. After the 

appointment of counsel, Appellant filed an amended PCRA Petition on March 

13, 2015. Following an evidentiary hearing, the Honorable John Henry 
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Foradora denied the Petition on August 17, 2015. Appellant timely 

appealed. 

On appeal, Appellant raises the following three issues for our review: 

1. Whether the trial court erred in rejecting Appellant's claim 

that trial counsel rendered ineffective assistance of counsel in 

failing to object to the trial court's jury instruction on the offense 

of Retaliation Against Witness or victim, 18 Pa.C.S. § 4953(a) 

which instruction did not require the jury to find that the victims 

were actually harmed by [Appellant]. 

2. Whether the trial court erred in rejecting Appellant's claim 

[that] trial counsel rendered ineffective assistance of counsel in 

not objecting to the jury instruction on the offense of Retaliation 

Against Prosecutor or Judicial Officer, 18 Pa.C.S. § 4953.1(a), 

which instruction did not require the jury to find that the victims 

were actually harmed by [Appellant]. 

3. Whether the trial court erred in rejecting Appellant's claim 

[that] trial counsel rendered ineffective assistance of counsel in 

not to objecting [sic] to sending out the threatening letters with 

the jury during deliberations. 

Appellant’s Brief at 4 (reordered for ease of disposition). 

When reviewing the denial of PCRA Petition, “we examine whether the 

PCRA court’s determination is supported by the record and free of legal 

error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal 

quotation marks and citation omitted). “The scope of review is limited to the 

findings of the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level.” Commonwealth 

v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). 

 In each of his issues, Appellant alleges that trial counsel provided 

ineffective assistance. In analyzing claims of ineffective assistance of 
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counsel, we presume that trial counsel was effective unless the PCRA 

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 

1177 (Pa. 1999). In order to succeed on a claim of ineffective assistance of 

counsel, Appellant must demonstrate (1) that the underlying claim is of 

arguable merit; (2) that counsel’s performance lacked a reasonable basis; 

and (3) that the ineffectiveness of counsel caused the appellant prejudice. 

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Appellant bears 

the burden of proving each of these elements, and his “failure to satisfy any 

prong of the ineffectiveness test requires rejection of the claim of 

ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 

2009). 

The Jury Instructions: Retaliation Against Witnesses 

In his first issue, Appellant avers that trial counsel was ineffective for 

failing to object to the jury instructions given for the charges of Retaliation 

Against a Witness, Victim or Party. Appellant alleges the instructions that 

were given were incomplete in that they did not include a harm instruction in 

a case where “[t]here was little, if any[,] evidence of harm to the victims[.]” 

Appellant’s Brief at 8. Accordingly, Appellant argues, if trial counsel had 

objected, and the trial court had then given a more complete harm 

instruction, the jury would have found Appellant not guilty of the crimes 

charged. 
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The offense of Retaliation Against a Witness, Victim or Party is defined 

as: 

(a) Offense defined.--A person commits an offense if he 

harms another by any unlawful act or engages in a course 

of conduct or repeatedly commits acts which threaten 

another in retaliation for anything lawfully done in the 

capacity of witness, victim or a party in a civil matter. 

18 Pa.C.S. § 4953(a). As Appellant correctly points out, our Supreme Court 

has previously held that satisfying the elements of a conviction based on 

harming another “requires both a showing of harm and the performance of 

an unlawful act.” Commonwealth v. Ostrosky, 909 A.2d 1224, 1232 (Pa. 

2006) (emphasis in original). It is not enough for the Commonwealth to 

prove that there was an unlawful act committed in retaliation for cooperation 

in a criminal prosecution. Id. 

At trial, the trial court gave two sets of jury instructions regarding the 

charges for Retaliation Against a Witness. Initially, the trial court instructed 

the jury as follows: 

Second type of charge is retaliation against a witness or victim. 

In order to find the Defendant guilty of the crime of retaliation 

against a witness or victim, you must find each of the following 

two elements have been proven beyond a reasonable doubt. 

First, that the Defendant harmed either Merle Rice or Irene Rice 

by an unlawful act. And, that could be a threat or abuse of death 

threats. You will have the letters. You will get to review whether 

there was an unlawful act. 

Second, that the Defendant did so in retaliation for Merle or 

Irene testifying at a trial or giving information to a police officer 

or other judicial person, which was something lawfully done by 

that victim or witness in the capacity as a victim or witness. 
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. . . 

If you find those two elements have been proven beyond a 

reasonable doubt, you should find the Defendant guilty. 

Otherwise, you must find the Defendant not guilty. 

N.T., 9/28/12, at 421-22. 

Later, in response to a question from the deliberating jury, the trial 

court reiterated: 

In order to find the Defendant guilty of the crime of retaliation 

against a witness or victim, you must find each of the following 

two elements have been proven beyond a reasonable doubt. 

First, the Defendant harmed Irene or Merle Rice by an unlawful 

act. And, you have the letters to determine whether there was 

an unlawful act. That’s the first element. 

Second, that the Defendant did so in retaliation for his or her 

testifying at a trial or giving information to a police officer, 

District Attorney, Court, which was something lawfully done by 

Merle or Irene Rice in the capacity as either a witness or victim. 

Id. at 445-46. 

This Court shares Appellant’s concern that, by combining the harm and 

the illegal act requirements into a single element, the trial court’s 

instructions left open the possibility that the jury would conflate the two 

requirements and overlook the harm element. Pursuant to Ostrosky, trial 

counsel’s failure to object to the jury instructions may well have constituted 

error. Ostrosky, supra at 1232. However, we cannot agree that Appellant 

has met his burden of demonstrating prejudice. 

Even where the trial court gives an incomplete jury instruction, this 

Court may find such an omission was harmless error where the surrounding 
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events at trial “clearly defined the issues for the jury.” Commonwealth v. 

Sandusky, 77 A.3d 663, 669 (Pa. Super. 2013) (holding that the trial court 

erred in failing to give a jury instruction on the credibility of witnesses based 

on delays in reporting, but concluding that the appellant had not been 

prejudiced where the delay issue was addressed through the combined effect 

of the jury instructions, the arguments of counsel, and the crossexamination of witnesses). 

In the instant case, the trial court twice gave its challenged instruction 

directing the jury to consider whether the victims had been harmed by 

Appellant’s illegal acts. Contrary to Appellant’s assertion, any failure to 

emphasize the harm element sufficiently was made harmless by trial 

counsel’s repeated emphasis on the harm requirement during crossexamination and in closing arguments.1

 Therefore, given that the totality of 

 

1

 In his closing argument, trial counsel argued, in part: 

Now there was some charges in retaliation against victim or 

witness. Now, the law required that somebody has to be harmed 

by an unlawful act or engaged in course of conduct or repeatedly 

commits acts threatening to commit in retaliation for acts done 

as a victim or witness. 

And, that standard hasn’t been met here. You have heard what 

everybody testified about. You heard Irene Rice testify. That she 

wasn’t really intimidated by the letters. 

She didn’t feel harmed. In fact, she laughed at some parts of 

that. So, I would argue that there was no actual harm to Irene 

Rice. There was only a threat of harm, which I am not 

minimizing. But, that doesn’t fit the statute here. 
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the circumstances sufficiently alerted the jury to the harm element of the 

offense, we conclude that Appellant has failed to meet his burden of showing 

that any additional instruction from the trial court would have had any effect 

on the jury’s verdict. 

The Jury Instructions: Retaliation Against Prosecutor/Judge

In the second issue, Appellant alleges that trial counsel was ineffective 

for failing to object to jury instructions regarding Retaliation Against a 

Prosecutor or Judicial Officer. Similar to his allegation of error regarding the 

instruction given for retaliation against a witness, Appellant alleges the 

instructions were incomplete because they did not include a harm 

instruction. 

Appellant fails to appreciate a crucial distinction between the two 

offenses. As noted above, Retaliation Against a Witness requires actual 

harm. A conviction for Retaliation Against a Prosecutor or Judicial Officer, 

however, may be proper where the Commonwealth proves that the 

defendant attempted to harm his victim. See 18 Pa.C.S. § 4953.1. 

In rejecting Appellant’s contention that the outcome would have been 

different with a more complete harm instruction, the trial court explained: 

 

And same for Merle Rice. Really wasn’t any harm. He didn’t 

testify about having to miss any work, see a psychiatrist, 

anything like that. 

N.T., 8/28/12, at 375-76. Trial counsel clearly focused on demonstrating 

the lack of harm to the letter recipients in his cross-examination of the two 

witnesses/crime victims. See id. at 79, 105. 
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As was true with respect to the charges filed on behalf of [the 

witnesses who were threatened], the [trial court] did not 

articulate for the jury that it had to find a "specific identifiable 

harm" in order to find [Appellant] guilty of Retaliating Against 

Prosecutor or Judicial Official, 18 Pa.C.S.A. § 4953.1, and nor did 

[trial counsel] ask for that instruction. In failing to do so, 

however, he was not ineffective. 

At the PCRA hearing, [trial counsel] allowed that he should have 

asked for the instruction. His initial response when asked why 

he did not, however, was that the statute's "attempt to harm" 

provision made it a more difficult question. That was an astute 

observation. 

Utilizing the relevant statutory language, the [c]ourt instructed 

the jury, 

To find the Defendant guilty of this offense, you 

must find the following elements have been proven 

beyond a reasonable doubt. 

First, that the Defendant harmed or attempted to 

harm another person or the intangible property of 

another person. 

. . . 

Second, that the Defendant did so by an unlawful 

act. Threatening someone, the crime of murder, can

be an unlawful act. You will have the letters. You 

can review as to whether there was an unlawful act. 

Third, the Defendant did so to retaliate against [each 

official] for something he or she did lawfully in his or 

her official capacity as a Judge or a prosecutor. 

Fourth, that the Defendant attempted or threatened 

to use force, violence or deception upon [any of the 

named officials] or upon another person knowingly 

and intentionally to retaliate against [any of them] 

for something he or she did lawfully in his or her 

official capacity as a judge or as a prosecutor. 

[N.T., 8/28/12, at 420-21]. See also [18 Pa.C.S.] § 4953.1(a) 

& (b)(1). The jury only had to find, therefore, that [Appellant], 

through his letters, had attempted to harm his victims by 
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threatening them with force or violence. Of that there was 

overwhelming evidence, because there could be no doubt that 

[Appellant’s] conscious objective was to cause his victims to live 

in persistent fear for their own lives or their and their families' 

lives. As the [c]ourt previously noted, his letters were graphic 

and explicit; they depicted brutal methods of physical and sexual 

assault that even [Appellant], while maintaining that he did not 

write the letters, described as "very shocking" and "malicious." 

Id. at 311. 

Whereas there was no question that [Appellant] was attempting 

to cause his victims extreme psychological and emotional harm, 

therefore, there is also no question that directing the jury to find 

that he was attempting to cause a "specific identifiable harm" 

would not have resulted in a different outcome. Accordingly, 

[trial counsel] was not ineffective for not asking the [trial court] 

to issue the instruction. 

Trial Court Opinion, filed 8/17/15, at 5-6. 

After careful review, we agree with the trial court’s determination that 

Appellant failed to establish he was prejudiced by the lack of a more specific 

harm instruction. 

The Jury’s Use of Letters During Deliberations 

In the third issue, Appellant avers that trial counsel was ineffective for 

failing to object to the trial court’s decision to permit the jury to examine the 

threatening letters during deliberations. 

The trial court succinctly set forth the relevant law and application to 

the facts of this case as follows: 

"Upon retiring," says Rule 646(A) of the Pennsylvania Rules of 

Criminal Procedure, "the jury may take with it such exhibits as 

the trial judge deems proper, except as provided in paragraph 

(C)." Id. Paragraph (C) disallows only four categories of 

evidence: 1.) a transcript of any trial testimony; 2.) a copy of 

the defendant's written or otherwise recorded confession; 3.) a 
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copy of the information or indictment; and 4.) written jury 

instructions except as specified in the previous paragraph. Id. 

Outside of those categories, and as the Rule itself suggests, 

whether an exhibit may go to the jury lies within the sound 

discretion of the trial judge, Commonwealth v. Barnett, 50 

A.3d 176, 194 (Pa. Super. 2012), whose evidentiary decisions 

are informed by the well-developed body of precedent 

surrounding the admissibility of evidence. 

As a general rule, evidence, even when relevant, should not be 

admitted if its probative value is outweighed by the danger of 

unfair prejudice, which occurs where the nature of the evidence 

is such that it has a tendency to inflame the jury and cause it to 

render a verdict based on something other than the relevant 

legal propositions. [See, e.g.,] Commonwealth v. Antidormi, 

84 A.3d 736, 750 (Pa. Super. 2014). Rule 646 merely augments 

that long-standing principle, its purpose being to avoid having 

juries overemphasize the weight and credibility of evidence in 

their possession while minimizing the value of other evidence 

simply because it is not in front of them. Barnett, 50 A.3d at 

194. Consistent with the admissibility analysis, therefore, the 

question when deciding whether a jurist abused his discretion in 

sending certain evidence to the jury room is whether the 

defendant was [unfairly] prejudiced because of it. Id. In this 

case, the answer is a resounding "no." 

To begin with, Rule 646(C) does not purport to exclude all 

evidence that is testimonial in nature; it instead specifies only a 

few categories of documented "testimony" that should be 

withheld from the jury during deliberations. The letters at issue 

did not fit within those categories and thus were not expressly 

prohibited by the Rule. It is fanciful, moreover, to surmise that 

the jury may have interpreted them as confessions when the 

letters themselves, once delivered to the victims, established the 

corpus of the crimes charged, not admissions that [Appellant] 

wrote any of them. 

Insofar as [Appellant] insisted that he had neither authored nor 

signed the letters bearing his name, moreover, it was essential 

that the jury be able to compare them with the undisputed 

samples of his signature. Accordingly, their probative value far 

outweighed any potential for prejudice. In addition, 

Commonwealth exhibits 23 and 25 and [Appellant’s] exhibit 2—a 

third sample of [Appellant’s] signature—were in the jury's 
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possession and served as continual reminders of [Appellant’s] 

testimony denying the allegations against him. Consequently, 

the totality of the evidence in the jury's possession adequately 

represented both parties' positions to the effect that the letters 

were not prejudicial to [Appellant]. 

Insofar as the underlying issue here is without merit, therefore, 

[trial counsel] cannot be deemed ineffective for failing to object 

when the Court indicated that it would send the letters out with 

the jury. 

Trial Court Opinion, filed 8/17/15, at 4-5. 

After a careful review of the record, we agree with the trial court that 

it was proper to provide the jury with the letters so that the jury might 

compare them to a known sample of Appellant’s handwriting where 

Appellant’s defense at trial was that the letters had been forged and were 

not in fact his handwriting. We further agree, therefore, that trial counsel 

was not ineffective for failing to raise a meritless objection. 

Having concluded that Appellant is not entitled to relief on any of the 

issues raised, we affirm the August 17, 2015 Order denying Appellant’s 

PCRA Petition. 

Order affirmed. Jurisdiction relinquished. 

Judge Platt joins the memorandum. 

Judge Olson concurs in the result. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/22/2016