J-A15032-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SETH LOUIS HAMILTON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1141 WDA 2022

Appeal from the PCRA Order Entered September 8, 2022

In the Court of Common Pleas of Mercer County Criminal Division at 

No(s): CP-43-CR-0001881-2017

COMMONWEALTH OF PENNSYLVANIA

v.

SETH LOUIS HAMILTON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1142 WDA 2022

Appeal from the PCRA Order Entered September 8, 2022

In the Court of Common Pleas of Mercer County Criminal Division at 

No(s): CP-43-CR-0001277-2018

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: AUGUST 28, 2023

Seth Louis Hamilton (Hamilton) appeals from the order of the Court of 

Common Pleas of Mercer County (PCRA court) granting in part and denying in 

part his petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 

Pa.C.S. § 9541-9546. He argues that the PCRA court erred in finding that 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A15032-23

- 2 -

counsel was not ineffective. We agree, as we conclude counsel was ineffective 

for failing to object to the Commonwealth’s motion for joinder resulting in the 

admission of irrelevant evidence. We, therefore, reverse the PCRA court’s 

order denying relief and remand for a new trial.

I.

A.

On direct review, we adopted the following summary of the underlying 

facts:

On the evening of October 25, 2017, three young men conspired 

to rob [Hamilton]. The motive for the robbery was a debt 

[Hamilton] owed to one of the co-conspirators, Zachary Cutshall 

[(Cutshall)]. Under the guise of giving [Hamilton] a ride to 

Greenville, Pennsylvania[,] to purchase marijuana, [the second 

co-conspirator,] Jacob Barger [(Barger),] stopped the vehicle in a 

remote location on Delaware [R]oad in Mercer County, 

Pennsylvania. Barger and the third co-conspirator, Dominic 

Heasley [(Heasley)], then exited the vehicle using the excuse 

[that] they had to urinate.

Upon [Barger and Heasley’s return] to the vehicle, [Cutshall] 

pulled out what was later determined to be a BB pistol and robbed 

Hamilton. [Cutshall] and [Hamilton were seated] in the back seat 

of the vehicle. Cutshall [was] on the passenger side and 

[Hamilton was] on the driver[’s] side. Due to the fact [that] it 

was night[time], and the fact [that] the BB pistol looked like a real 

handgun, [Hamilton] complied with Cutshall’s demand to hand 

over his personal property, which included his wallet, cell phone, 

and a drawstring bag that contained a small amount of marijuana 

and some drug paraphernalia. Cutshall then ordered [Hamilton] 

to get out of the vehicle.

Unbeknownst to the three co-conspirators, [Hamilton] had a real 

handgun in his possession at the time of the robbery. 

Coincidentally, he had stolen this handgun out of an unlocked 

pick-up truck the day before the robbery. When he got out of the 

vehicle, [Hamilton] asked Barger whether he knew about the 
J-A15032-23

- 3 -

conspiracy. Barger acknowledged he did. [Hamilton] then pulled 

the handgun out of his waistband and, while holding the passenger 

door open, fired the handgun at [Cutshall] approximately five 

times. One round fatally struck Cutshall in the neck area.

[Hamilton] then proceeded to the rear of the vehicle and fired 

more rounds through the back window. One of these rounds 

penetrated the front passenger seat and struck [Heasley] in the 

shoulder. [Hamilton] then fled into the woods. However, he later 

met up Barger, Heasley, and the now[-]deceased Cutshall[] at the 

parking lot for Vaughn Chiropractic[,] where Barger had moved 

the vehicle. [Hamilton] remained there with them despite 

knowing that Heasley had placed a 911 call. The Pennsylvania 

State Police found the four of them at the site.

(Commonwealth v. Hamilton, 2020 WL 5423944, unpublished 

memorandum, at *1-2 (Pa. Super., filed Sep. 10, 2020) (quoting Trial Court 

Opinion, 12/30/19, at 1-2 (pagination provided)).

B.

Charges related to the shootings were docketed at CP-43-CR-0001881-

2017, while charges with respect to the stealing of the gun used in the 

shootings were docketed at CP-43-CR-0001277-2018. On the Friday before 

voir dire was scheduled to begin in the shooting case, which was scheduled to 

begin the following Monday, the Commonwealth filed a motion to join each of 

the underlying cases, arguing that joinder would not unfairly prejudice 

Hamilton, would promote judicial economy and eliminate the need for 

separate trials. (See Joinder Motion, 4/05/19, at ¶¶ 9, 11-12).

The Commonwealth maintained that several facts supported joinder. 

Specifically, the events concerning the cases occurred over a five-day period 

(October 22-26, 2017); both cases revolved around the same piece of 
J-A15032-23

- 4 -

evidence (i.e., the gun that was alleged to have been stolen in the one case 

was allegedly used in the other case); Hamilton met the victims of the 

shooting case at the home of his co-conspirator from the gun theft case; and 

multiple witnesses would be called to testify in both cases (specifically, the 

co-conspirator from the gun case, the shooting victims and any witnesses that 

would identify and address the operability of the stolen gun). (See Joinder 

Motion, at ¶¶ 4, 6-8). The trial court granted the Commonwealth’s motion. 

(See Order, 4/05/19 at 1).

Trial was held on April 9-12, 2019. Of the 16 trial witnesses, only two 

testified about the theft offense. The issue before the jury was whether 

Hamilton shot Cutshall with malice or whether he was justified in doing so in 

self-defense. (See N.T. PCRA Hearing, 4/22/22, at 43, 47). During his 

opening statement, the prosecutor referred to Hamilton as a thief and 

repeatedly used the term “stole” or “stolen” 15 times before calling any 

witnesses. (See id. at 13-24). The Commonwealth did not dispute that 

Hamilton was the victim of a robbery plot by Cutshall and his associates. (See

N.T. Trial Vol. I, at 19).

At the conclusion of trial, the jury acquitted Hamilton of murder and 

possession with intent to deliver.

1

 It convicted him of two counts each of 

____________________________________________

1 See 18 Pa.C.S. § 2502(a), 901(a), 2502(c); 35 P.S. § 780-113(a)(30), 

respectively.
J-A15032-23

- 5 -

aggravated assault with a deadly weapon, theft by receiving stolen property, 

and criminal conspiracy; and one count each of aggravated assault, criminal 

attempt, firearms not to be carried without a license, tampering with or 

fabricating physical evidence, theft from a motor vehicle, criminal conspiracy, 

theft by unlawful taking, possession of a small amount of marijuana, and 

possession of drug paraphernalia.2 At a deferred sentencing hearing, the trial 

court imposed an aggregate term of 15 to 30 years’ imprisonment, followed 

by 37 months of probation.3 (See Sentencing Order, 9/26/19 at 2-5); 

(Amended Sentencing Order, 10/01/19 at 1). On September 10, 2020, this 

Court affirmed the judgments of sentence.4 (See Commonwealth v. 

____________________________________________

2 18 Pa.C.S. §§ 2702(a)(4), 3925(a), 903(a)(1), 2702(a)(1), 901(a), 

6106(a)(1), 4910(1), 3934(a), 3921(a); 35 P.S. § 780-113(a)(31), (32), 

respectively.

3 The aggregate term included consecutive prison terms of 72 to 144 months 

for aggravated assault, 54 to 108 months for criminal attempt to commit 

aggravated assault, 13 to 26 months for aggravated assault with a deadly 

weapon, 13 to 26 months for aggravated assault with a deadly weapon, 16 to 

32 months for theft by receiving stolen property, and 12 to 24 months for 

firearms not to be carried without a license. The term also included 

consecutive probation terms of two years for tampering with or fabricating 

physical evidence, one year for possession of drug paraphernalia, and one 

month for possession of a small amount of marijuana. Sentencing Order, 

9/26/19, 2-5; Amended Sentencing Order, 10/1/19, 1.

4 On direct appeal, Hamilton challenged: (1) the trial court’s reading of the 

Commonwealth’s requested jury instruction related to the defense of 

justification; (2-3) the trial court’s denial of his requested jury instructions 

regarding the defense of justification; (4) the trial court’s denial of his 

requested jury instruction regarding the voluntariness of his confession to 

police; (5) the trial court’s reading of the Commonwealth’s requested jury 

(Footnote Continued Next Page)
J-A15032-23

- 6 -

Hamilton, 240 A.3d 916 (Pa. Super. filed Sept. 10, 2020) (unpublished 

memorandum)). On May 17, 2021, our Supreme Court denied further review. 

(See Commonwealth v. Hamilton, 253 A.3d 674 (Pa. 2021)).

C.

With the assistance of present counsel, Hamilton filed a timely PCRA 

petition in which he claimed that trial counsel provided ineffective assistance 

by: (1) not contesting the Commonwealth’s joinder motion; (2) not objecting 

to instances of alleged prosecutorial misconduct based on the trial 

prosecutor’s opening and closing remarks; (3) not objecting to the jury verdict 

sheet; (4) not objecting to the charging of multiple counts of theft by receiving 

stolen property; and (5) not objecting to the charging of multiple counts of 

conspiracy in the gun theft case. (See PCRA Petition, 3/11/22, at 31-54). 

The PCRA court granted an evidentiary hearing, at which Hamilton’s trial 

counsel testified.

5

Trial counsel testified that he agreed to joinder because he believed that 

the evidence for the theft case “was probably going to come in anyway one 

way or the other” and the Commonwealth could satisfy the test for joinder. 

(N.T. PCRA Hearing, 4/24/22, at 21, 38). Trial counsel also wanted to avoid 

____________________________________________

instructions which described the elements of first-degree murder and 

aggravated assault; and (6) the discretionary aspects of his sentence. 

Hamilton, 2020 WL 5423944, at *2-5.

5 The trial court and PCRA court are the same jurist in this matter.
J-A15032-23

- 7 -

a delay of the homicide trial because the prosecutor told him that if he did not 

agree to the joinder motion, it would try the “pretty strong” theft case first. 

(Id. at 21); (see id. at 22). Trial counsel also believed that the evidence of 

the theft would be admissible for res gestae purposes. (Id. at 21) (“. . . so I 

felt that the Judge would probably let that in as part of the history of the 

crime.”).

He also agreed with the prosecutor’s suggestion that joinder was 

prudent because the jury being instructed on justification (self-defense) “may 

have helped the theft case.” (Id. at 42); (see id. at 36, 40-42). However, 

he also stated that the jury would not have heard his available defenses for 

self-defense and justification in the theft case if his cases had been tried 

separately because justification was not a defense for a theft offense. (See 

id. at 35-36, 40-41).

Trial counsel characterized the prosecutor’s remarks in the 

Commonwealth’s opening statement and closing argument as “borderline 

objectionable.” (Id. at 16). He explained that it was not his practice to object 

during opening statements and closing arguments unless the remarks in 

question “clearly cross that line as objectionable” because “it would certainly 

draw the jury’s attention” to them and “[t]he risk of a judge overruling the 

objection can really backfire in a situation like that.” (Id. at 16, 34). Trial 

counsel agreed that he refrained from making objections because he did not 

want to cause an interruption and then have an objection overruled. (See id.
J-A15032-23

- 8 -

at 19). He also refrained from objections because the prosecutor “wouldn’t 

be able to prove the things he was saying and [he] would call him on it later[.]” 

(Id.); (see also id. at 47-48) (“I would rather have him overtry his case and 

not be able to prove it than make an objection that is overruled.”).

On cross-examination, trial counsel agreed, with respect to the remarks 

about Hamilton being a “thief,” a “drug dealer,” a “liar” and a “murderer” that 

the charges included offenses involving theft, drug dealing and murder, and 

that there was evidence that Hamilton had told untruthful things to the police. 

(Id. at 32-33). With respect to a remark about Hamilton committing an 

“execution style” shooting, trial counsel agreed that there was significant 

testimony about bullet trajectories and the evidence suggested that the 

shooting of Cutshall occurred at a downward angle. (Id. at 33).

Regarding the verdict sheet claim, trial counsel asserted that he believed 

that the verdict sheet was created by the trial court, but he was not certain of 

that. (See id. at 8). He testified that he did not recall that he had any 

reasonable or strategic basis for not objecting to the verdict sheet. (See id.

at 10). On cross-examination, trial counsel agreed that he did not recall 

“having an issue with” the verdict sheet at the time of trial, that the jurors 

were instructed on the law for every single charge, and the court’s instructions 

included both the mens rea and actus reus elements for each of the charges. 

(Id. at 31).
J-A15032-23

- 9 -

After reviewing post-hearing briefs from the parties, the PCRA court 

denied the ineffectiveness claims concerning the lack of objections to the 

joinder motion, the prosecutor’s remarks and the verdict sheet. (See PCRA 

Court Opinion, 9/08/22 at 2-7). The PCRA court granted relief on the 

remaining claims, reversing the additional theft by receiving stolen property 

and criminal conspiracy convictions as duplicative.6 (See id. at 7-9); (Order 

9/08/22 at 1).

Hamilton timely filed notices of appeal for each of his underlying cases 

and a court-ordered concise statement of errors complained of on appeal.

He raises three issues for our review challenging the PCRA court’s 

finding that trial counsel was not ineffective when he: (1) agreed to the 

joinder of his homicide and theft cases; (2) failed to object to the 

Commonwealth’s “persistent and ill-measured rhetoric” throughout his trial; 

and (3) failed to object to the suggestive verdict slip. (See Hamilton’s Brief, 

at 4).7

____________________________________________

6 No sentencing proceedings were necessary because the reversed convictions 

were originally deemed to be merged for sentencing purposes.

7

In reviewing the denial of PCRA relief, our standard of review is limited to 

whether the record supports the PCRA court’s factual determinations and 

whether its decision is free of legal error. See Commonwealth v. Lopez,

249 A.3d 993, 998 (Pa. 2021). We apply a de novo standard of review to the 

PCRA court’s legal conclusions. See Commonwealth v. Fears, 86 A.3d 795,

804 (Pa. 2014). “The PCRA court’s findings will not be disturbed unless there 

is no support for the findings in the certified record.” Commonwealth v. 

Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (citation omitted).
J-A15032-23

- 10 -

II.

A.

We are guided by the following legal principles in reviewing an 

ineffective assistance of counsel claim. In considering an ineffective 

assistance of counsel claim, we observe first that counsel is presumed 

effective and that a petitioner bears the burden to prove otherwise. See

Fears, 86 A.3d at 804. To establish an ineffectiveness claim, a defendant 

must prove:

(1) The underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s actions or failure to act; and (3) 

[appellant] suffered prejudice as a result of counsel’s error such 

that there is a reasonable probability that the result of the 

proceeding would have been different absent such error.

Id. (citation omitted). “Failure to prove any prong of this test will defeat an 

ineffectiveness claim. When an appellant fails to meaningfully discuss each of 

the three ineffectiveness prongs, he is not entitled to relief, and we are 

constrained to find such claims waived for lack of development.” Id. (citations 

and internal quotation marks omitted).

With these legal principles in mind, we turn to Hamilton’s allegations.

B.

Hamilton first challenges the PCRA court’s denial of his claim alleging 

that his trial counsel provided ineffective assistance by agreeing to the 

Commonwealth’s motion for joinder. He maintains that his theft of the 

revolver was wholly immaterial for the jury’s consideration of whether he shot 
J-A15032-23

- 11 -

Cutshall with criminal intent or concealed the firearm illegally and, therefore,

was inadmissible prior bad act evidence. He further asserts that counsel’s 

reasons for failing to object were unreasonable and that he was prejudiced 

because it “enabled the Commonwealth to vilify [him] in the eyes of the jury 

as a thieving criminal and detract from his status as the robbery victim that it 

recognized he was.” (Hamilton’s Brief, at 51).8

We consider first the underlying merit of this claim.

1.

Hamilton argues that “the evidence in the theft case wasn’t relevant, 

nor admissible, to the elements and defenses at issue in the homicide case” 

and that “theft of the revolver in the lead up to the homicide was not ‘part of 

the natural development of the facts’ of the homicide, rather it was mere 

‘coincidence.’” (Hamilton’s Brief, at 22); (see also Trial Ct. Op., 1/03/20, at 

1).

____________________________________________

8 Procedurally, Hamilton argues that the Commonwealth’s motion was 

untimely where it was filed and granted “on the eve of trial” in violation of 

Rule 582(B) and that “[t]his was a ground, in itself, to oppose joinder.” 

(Hamilton’s Brief, at 20, 21). However, this is waived where he does not 

further develop this procedural issue under the three ineffectiveness prongs

or provide any legal authority to support his argument. See Fears, 86 A.3d 

at 804. Moreover, as noted by the Commonwealth, Rule 582(B) provides that 

where the Commonwealth has not provided the defendant notice that separate 

indictments will be tried together at or before arraignment, a “[joinder] motion 

must ordinarily be included in the omnibus pretrial motion,” which means 

this timing is not a strict requirement. Pa.R.Crim.P. 582(B)(2) (emphasis 

added).
J-A15032-23

- 12 -

The Commonwealth asserts that it used evidence of the theft “to 

establish that [Hamilton] stole the same gun used in the homicide[;] 

therefore, ... one charge is relevant to the other as it showed a progression of 

events[,] who possessed the revolver, how it came into [Hamilton’s] 

possession, and that [it] was the same one stolen around the time of the 

homicide.” (Commonwealth’s Brief, at 21).

Pennsylvania Rule of Criminal Procedure 582 provides, in pertinent part, 

that “[o]ffenses charged in separate indictments or information may be tried

together if: (a) the evidence of each of the offenses would be admissible in a 

separate trial for the other and is capable of separation by the jury so there is 

no danger of confusion[.]” Pa.R.Crim.P. 582(A)(1)(a).9 This Court utilizes the 

following three-part test for evaluating whether joinder is appropriate in 

matters involving different acts or transactions:

(1) whether the evidence of each of the offenses would be 

admissible in a separate trial for the other; (2) whether such 

evidence is capable of separation by the jury so as to avoid danger 

of confusion; and, if the answers to these inquiries are in the 

affirmative, (3) whether the defendant will be unduly prejudiced 

by the consolidation of offenses.

____________________________________________

9 Although Rule 582(A)(1)(b) provides that offenses charged in separate 

indictments may be tried together if they are part of the same transaction or 

occurrence, the Commonwealth only sought joinder under subsection (a). 

(See Commonwealth’s Brief, at 19 (“the Commonwealth proceeded under 

Pa.R.Crim.P. 582(A)(1)(a)”).
J-A15032-23

- 13 -

Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010)

(citations omitted).

[w]hether or not separate indictments should be consolidated for 

trial is within the sole discretion of the trial court[.] ... Evidence 

of distinct crimes is inadmissible solely to demonstrate a 

defendant’s criminal tendencies. Such evidence is admissible, 

however, to show a common plan, scheme or design embracing 

commission of multiple crimes, or to establish the identity of the 

perpetrator, so long as proof of one crime tends to prove the 

others. This will be true when there are shared similarities in the 

details of each crime.

Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa. Super. 2006) 

(citations omitted).

“Evidence of another crime is admissible where the conduct at issue is 

so closely related that proof of one criminal act tends to prove the other. Such 

evidence is particularly relevant to prove identity.” Commonwealth v. 

Natividad, 773 A.2d 167, 174 (Pa. 2001), cert. denied, 535 U.S. 1099 

(2002), abrogated on other grounds, Commonwealth v. Freeman, 827 A.2d 

385 (Pa. 2003).

We find Natividad persuasive. In Natividad, the appellant was tried 

on consolidated indictments. The first indictment charged him for stealing 

victim one’s dark colored Lincoln at gunpoint, utilizing a large silver gun, 

possibly a .357 Magnum. In the trunk of the Lincoln was a lumberjack style 

jacket. In the second indictment, the appellant was charged with shooting a 

second victim days later. The identity of the shooter of this second victim was 

at issue. “The person who shot [victim two] committed the crime with a large 
J-A15032-23

- 14 -

chrome revolver, possibly a .357 Magnum. He was seen leaving the shooting 

wearing a lumberjack style jacket driving a dark Lincoln.” Natividad, 773 

A.2d at 174. Thus, this Court found the indictments were properly 

consolidated.

Importantly, here, there was no issue at trial about the identity of the 

shooter, but instead, about whether Hamilton acted in self-defense. The fact 

that days before he “coincidentally” had stolen the gun he utilized for the 

shooting was irrelevant to whether he either acted with criminal intent in 

shooting Cutshall or illegally concealed the firearm. (Trial Ct. Op., at 1) 

(“Coincidentally, [Hamilton] had stolen this handgun out of an unlocked pickup truck the day before the robbery”). Thus, evidence that Hamilton had 

stolen the handgun he possessed was irrelevant and solely used to improperly 

demonstrate his criminal tendencies where there was no issue about the 

identity of the shooter, and there is no allegation that he stole the gun with 

the intent of shooting Cutshall. See Andrulewicz, 911 A.2d 162 at 168.

Hence, the joinder issue has underlying merit.

2.

Hamilton argues that he was prejudiced by the joinder of the theft and 

homicide cases because it “enabled the Commonwealth to vilify [him] in the 

eyes of the jury as a thieving criminal and detract from his status as the 

robbery victim that it recognized he was.” (Hamilton’s Brief, at 51); (see also
J-A15032-23

- 15 -

N.T. Trial I, at 19) (“The victim in that case was Seth Hamilton the 

defendant.”).

As we have explained:

The traditional justification for permissible joinder of offenses or 

consolidation of indictments appears to be the judicial economy 

which results from a single trial. The argument against joinder or 

consolidation is that where a defendant is tried at one trial for 

several offenses, several kinds of prejudice may occur: (1) [t]he 

defendant may be confounded in presenting defenses, as where 

his defense to one charge is inconsistent with his defenses to the 

others; (2) the jury may use the evidence of one of the offenses 

to infer a criminal disposition and on the basis of that inference, 

convict the defendant of the other offenses; and (3) the jury may 

cumulate the evidence of the various offenses to find guilt when, 

if the evidence of each offense had been considered separately, it 

would not so find.

Commonwealth v. Richard, 150 A.3d 504, 509 (Pa. Super. 2016) (citation 

omitted). Although the “liberal rule for the joinder of offenses reflects a 

concern for economy of judicial resources[,] [i]t, however, fails to recognize 

the possibility that the jury may misuse the evidence no matter however, 

separable and distinct.” Commonwealth v. Morris, 425 A.2d 715, 719 (Pa. 

1981).

The “simple and distinct” test ... may well be an appropriate 

standard for measuring the prejudice resulting from the jury’s 

confusing and cumulating the evidence. It does not address itself, 

however, to the graver mischief possible where the jury, while 

limiting its consideration of the evidence to the crime to which it 

relates, properly finds the defendant guilty of one crime but 

considers the finding probative of his guilt of another.

Id. (citation omitted).
J-A15032-23

- 16 -

Further, “the conservation of judicial resources and the efficient 

administration of justice, while estimable goals, does not justify the exposure 

of an accused to such a higher probability of prejudice.” Id. Importantly:

the saving of judicial time can never be given preference over the 

integrity of the factfinding process. When it is concluded that the 

evidence of the one crime would not be admissible in the separate 

trial for the other, we are in effect saying that the evidence is 

irrelevant and prejudicial in the second trial. To allow irrelevant 

and prejudicial evidence to influence a verdict in the name of 

judicial economy is abhorrent to our sense of justice. Additionally, 

defendants in joint trials are treated differently from those who 

receive separate trials as a result of the lack of uniformity in the 

admission in the joint trial of evidence which would have been 

inadmissible in one of the single trials had there been no joinder.

Id. at 720.

As explained above, the fact that Hamilton coincidentally stole the 

firearm was irrelevant in the homicide trial and opened the door for the 

prosecutor to repeatedly characterize Hamilton as a thief, allowing the jury to 

consider this as probative in his homicide trial. While judicial economy is an 

understandable consideration when confronted with a joinder motion, allowing 

the admission of irrelevant evidence to potentially influence the verdict 

certainly creates a “reasonable probability” of prejudice. Fears, 86 A.3d at

804. Therefore, the second prong of the ineffectiveness test is satisfied.

3.

Hamilton maintains that the reasons proffered by his trial counsel for 

failing to contest the Commonwealth’s joinder motion lacked a reasonable 

strategic basis. We agree.
J-A15032-23

- 17 -

It is undisputed that trial counsel did not contest the Commonwealth’s 

motion. (See N.T. PCRA Hearing, at 21); (trial counsel testifying that he 

“agreed to have the cases consolidated.”). At the PCRA hearing, trial counsel 

testified that he elected not to oppose joinder because he thought evidence of 

the theft “was probably going to come in” at the homicide trial and that the 

Commonwealth would meet its burden for joinder. (Id. at 21, 38). Further, 

trial counsel did not want to delay the homicide trial where the Commonwealth 

had suggested that if the cases were not joined, it would try the theft case 

first. (See id. at 21-22). Finally, counsel thought that joinder “may have 

helped the theft case” because the jury would be instructed on the defense of 

justification.” (Id. at 36, 40-42). We do not find these explanations 

reasonable.

First, as stated above, the evidence of theft was irrelevant to the 

homicide case because the theft charge had no common elements with the 

homicide related charges. Trial counsel’s reason then for not opposing joinder 

because the evidence would have come in anyway was also unreasonable 

because evidence of those charges would not have been admissible, as the 

Commonwealth suggests, under the “res gestae” exception because it 

undisputed that the theft of the gun did not go to “proving motive, 

opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident.” See Natividad; Pa.R.E. 404(b)(2). Such 

evidence would have also been inadmissible to demonstrate a defendant’s 
J-A15032-23

- 18 -

criminal tendencies. See Andrulewicz;. Pa.R.E. 404(b)(1). Trial counsel’s 

reason then for not opposing joinder because the evidence would have come 

in anyway was unreasonable because that evidence was inadmissible.

Second, as to his claim that he did not object to joinder because if he 

did, the trial would have been delayed because that theft charge somehow 

would take precedent over the homicide related charges, assuming that there 

would have been a delay in the homicide-related charges, we do not see that 

as a justifiable reason for acceding to joinder when trying them together was 

prejudicial. Moreover, if there was some valid reason that we cannot discern

for not delaying the homicide-related charges, trial counsel’s position assumes 

that the trial court was going to grant the Commonwealth’s joinder motion, 

filed on the Friday before jury selection was scheduled for the following 

Monday on the homicide-related charges, when the theft charge was irrelevant 

to those charges. In any event, even if there was a delay caused by the 

Commonwealth somehow being allowed to proceed with the theft case, it 

would have been brief10 and, in any event, considering the “higher probability 

of prejudice” suffered by Hamilton due to the joinder, counsel’s decision to 

acquiesce to it was unreasonable. Morris, 425 A.2d at 719.

____________________________________________

10 A review of the trial transcript in this matter reflects that the testimony 

about the theft was 39 pages and included two witnesses. (See N.T. Trial I, 

at 38-49, 90-118).
J-A15032-23

- 19 -

Finally, counsel’s position that joinder helped the theft case because the 

jury was instructed on justification is nonsensical where, as acknowledged by 

trial counsel, it was irrelevant to the theft case. (See N.T. PCRA Hearing, at 

35-36, 40-41) (trial counsel agreeing that justification only applied to the 

homicide charge since it is not a defense for a theft offense). Therefore, the 

lack of a reasonable-basis prong of the ineffective assistance of counsel test 

has been met.

Accordingly, we reverse the order of the PCRA court and remand for a 

new trial on the basis that counsel rendered ineffective assistance when he 

failed to object to the Commonwealth’s motion for joinder. Given this 

disposition, we decline to address the remainder of Hamilton’s claims.

Order reversed. Matter remanded for a new trial. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/2023