J-S79016-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee

v.

JEROME KING,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3136 EDA 2013

Appeal from the PCRA Order of October 18, 2013, 

in the Court of Common Pleas of Philadelphia County, 

Criminal Division, at No(s): CP-51-CR-0401961-2006

BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.*

CONCURRING MEMORANDUM BY: STRASSBURGER, J.:FILED FEBRUARY 24, 2015

Because there is no arguable merit to Appellant’s contention that trial 

counsel was ineffective, I concur and offer the following analysis.

In Commonwealth v. Penn, 562 A.2d 833 (Pa. Super. 1989), a panel 

of this Court held that 

the trial court abused its discretion in failing to examine 

[the witness] for itself, in camera if necessary, in order to access 

his credibility and to determine the nature, extent, and impact of 

any attempts to intimidate [the witness] and prevent or alter his 

testimony, or to otherwise make specific factual 

determinations based upon sufficiently reliable 

information which would support a conclusion that 

important interests existed which would justify the partial 

closure ordered. 

Id. at 839 (emphasis added).

In this case, the trial court held an in camera hearing with the 

detective, Detective Burns, involved in the case. Detective Burns told the 
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trial court that he has been involved “in excess of 20 murders and instances 

where three witnesses have been killed.” N.T., 2/26/2008, at 145. More 

specifically, Detective Burns told the trial court that these murders occurred 

within “a particular group, of which we believe [Appellant] to be a part of.” 

Id. With respect to Kinnard, Detective Burns stated that that Kinnard “was 

a cooperating witness on another murder, he has since been relocated, he 

was fine up until quite frankly he saw people in the gallery, and he’s just, for 

lack of a better word, scared out of his mind right now for that reason.” Id. 

at 147. Based on that hearing, the trial court concluded that it was 

appropriate to clear the courtroom during Kinnard’s testimony. 

I see no abuse of discretion in the way in which the trial court handled 

the courtroom closure and do not read Penn to say that the trial court must 

interview the witness prior to ordering a closure or partial closure of the 

courtroom. Rather, Penn holds that the trial court needs more than 

representations by the Commonwealth before ordering the closure. 

Accordingly, because the trial court did not abuse its discretion, there is no 

arguable merit to the proposition that trial counsel was ineffective.1 On that 

basis, I would affirm the PCRA court’s order. 

 

1

I recognize that the PCRA court held that the trial court erred in closing the 

courtroom, but such error did not prejudice Appellant, and therefore trial 

counsel was not ineffective. However, it is well settled that this Court may 

affirm and order of the PCRA court on any basis appearing in the record. 

See Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007) 
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(“[W]e may affirm the decision of the [PCRA] court if there is any basis on 

the record to support the [PCRA] court’s action; this is so even if we rely on 

a different basis in our decision to affirm.”).