J-S56037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ANTHONY KAREEM HAYES,

Appellee No. 594 MDA 2015

Appeal from the PCRA Order March 24, 2015

in the Court of Common Pleas of York County

Criminal Division at No.: CP-67-CR-0007258-2009

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 10, 2015

The Commonwealth of Pennsylvania appeals from the court’s order 

granting in part the petition filed by Appellee, Anthony Kareem Hayes, 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, and ordering a new trial. We affirm. 

This case stems from the September 26, 2009 stabbing-death of 

Kenneth Ramos. A previous panel of this Court summarized the underlying 

facts as follows:

[Appellee], Jamell McMillan and the decedent were 

together during a party at a certain home. At some point, they 

left the party, apparently to obtain more beer, but then returned 

to the aforesaid residence. McMillan would later testify that, 

when the three men returned to the home, he exited their car 

and walked towards the front of the house. While he did so, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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[Appellee] and the decedent alighted from the vehicle and 

argued. According to McMillan, the decedent punched 

[Appellee], knocking him down. Thereafter, the two engaged in 

a physical fight until the decedent dropped to the ground.

[Appellee] told McMillan to come to the vehicle, and the 

latter did so. When McMillan entered the car, he saw that 

[Appellee] was holding a knife in his hand. [Appellee] then said 

that he had killed the decedent. 

During the altercation between [Appellee] and the 

decedent, a witness named Tessa Hollinger was in a nearby 

parked car. She saw two men arguing and fighting. Eventually, 

she saw one of the two fall to the ground. She could not identify 

either person in the fight. 

Two other individuals, Michael Smith and David Floyd, 

would eventually testify that [Appellee] told them he had 

stabbed the decedent.

At trial, a forensic pathologist would testify that the 

decedent died from a stab wound that cut his spinal cord and 

brainstem. The pathologist opined that the death was a 

homicide.

[Appellee] was arrested and charged with multiple 

offenses. . . . 

(Commonwealth v. Hayes, No. 554 MDA 2012, unpublished memorandum 

at *1-*2 (Pa. Super. filed Dec. 5, 2012)).

On October 18, 2011, the Commonwealth filed a pre-trial motion in 

limine seeking to introduce evidence of Appellee’s prior gang activity as 

motive for the killing. See Pa.R.E. 404(b)(1)-(2).1 The trial court granted 

____________________________________________

1 Under Pennsylvania Rule of Evidence 404(b), “[e]vidence of a crime, 

wrong, or other act is not admissible to prove a person’s character in order 

to show that on a particular occasion the person acted in accordance with 

the character.” Pa.R.E. 404(b)(1). However, “[t]his evidence may be 

(Footnote Continued Next Page)
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the motion and Appellee proceeded to a jury trial on December 12, 2011. 

The Commonwealth’s theory of the case was based on an intra-gang rivalry 

between Appellee and the victim. (See N.T. Trial, 12/12/11, at 87; N.T. 

Trial, 12/14/11, at 392, 395, 401-02). The testimony reflected that they 

were members of the “Valentine” gang, a local chapter of the larger “Bloods” 

gang, and that the victim was the leader of the Valentines. (N.T. Trial, 

12/12/11, at 211, 261; see also id. at 209-15, 261-63). The 

Commonwealth presented evidence that Appellee may have killed the victim 

in order to take control of the gang. (See id. at 139, 206, 263, 283). At 

the conclusion of trial, defense counsel did not request a limiting instruction 

regarding the gang references, and the court did not give the applicable 

standard jury instruction. (See PCRA Court Opinion, 3/24/14, at 14) (citing 

Pa.SSJI Crim. 3.08).2

(Footnote Continued) _______________________

admissible for another purpose, such as proving motive[.]” Pa.R.E. 

404(b)(2). 

2

 Instruction 3.08 states in pertinent part: “This evidence is before you for a 

limited purpose, that is, for the purpose of tending to [show motive]. This 

evidence must not be considered by you in any way other than for the 

purpose I just stated. You must not regard this evidence as showing that 

the defendant is a person of bad character or criminal tendencies from which 

you might be inclined to infer guilt.” Pa.SSJI Crim. 3.08(2).
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The jury acquitted Appellee of first-degree murder and convicted him 

of third-degree murder. On February 2, 2012, the trial court sentenced him 

to a term of not less than twenty nor more than forty years’ incarceration. 

Appellee filed a post-sentence motion, which the trial court denied. This 

Court affirmed the judgment of sentence on December 5, 2012. (See

Commonwealth v. Hayes, 64 A.3d 10 (Pa. Super. 2012)). Our Supreme 

Court denied Appellee’s petition for allowance of appeal on June 27, 2013. 

(See Commonwealth v. Hayes, 70 A.3d 809 (Pa. 2013)). 

On October 10, 2013, Appellee filed a pro se “Petitio L’ Breve d’ 

Habeas Corpus Ad Subjiciendum,” which the PCRA court treated as a PCRA 

petition. The court appointed counsel, who filed amended PCRA petitions, 

raising several allegations of trial counsel ineffectiveness. Material to the 

instant appeal is the claim that counsel was ineffective for failing to request 

a limiting instruction regarding Appellee’s gang activities. The court heard 

testimony on this issue on January 29, 2015. At the hearing, trial counsel 

testified:

Q. Did you have any discussions with [Appellee] about 

any instructions on gang activity?

A. I don’t believe so. We talked a lot about the gang 

activity because that came up. [The Commonwealth] had filed, 

you know, to have that admitted, and we fought pretty hard 

against that one, but [the trial court] denied us and allowed that 

evidence in, and I know one of the complaints here is me not 

asking for an instruction on, you know, motive and gang activity, 

and my recollection is, you know, the standard instruction is 

enough, and I believe [the trial court] gave it where the 

standard instruction, the Commonwealth need not prove motive, 
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but if they do, you know, you are allowed to consider it, but I 

didn’t request anything specific with regard to that.

Q. So in your opinion, the standard instruction as given by 

[the trial court] was sufficient to cover the issue?

A. Yeah, and I mean the gang activity, that was—that was 

a tough issue to deal with in the trial, and we don’t want to keep 

bringing attention to it, especially what happened with the one 

juror and the hearts on the driveway, but, no, I did not request 

anything specific with regard to that. 

* * *

Q. Regarding the limit[ing] instruction on the gang testimony, 

you did not request that to the jury, is that correct, in a charging 

instruction?

A. With regard to motive?

Q. With regard to there was testimony regarding gang activity 

and what purpose that could be used for to the jury as not to 

infer anything negative as to that gang activity and testimony 

other than the intended purpose for which it was used, and in 

this case, I think it was motive.

A. That’s what the gang activity was solely related to was 

motive, and I know there is a standard instruction with regard to 

motive, and I’m 99 percent sure [the trial court] would have 

given that, so, no, I guess [the] simple answer is no, I didn’t 

request any additional instruction specific to that issue. 

Q. Specific to the gang issue?

A. Yes.

Q. And just so the record is clear specific to the gang issue, that 

the jury should not consider that for any other purpose other 

than motive, that instruction wasn’t given—

A. No.

Q. —or requested by you, is that correct?
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A. No, because during the course, too, of jury deliberations, the 

gang issue was all over the place because the one juror came in 

sobbing the next morning. I asked for a mistrial because she 

had valentines painted on her driveway, and it was just an 

overriding theme with regard to everything. 

(N.T. PCRA Hearing, 1/29/15, at 29-30, 36-37). 

On March 24, 2015, the PCRA court entered its order and supporting 

opinion denying Appellee’s petition in part and granting it in part. 

Specifically, the court denied the PCRA petition as it related to all issues 

except trial counsel ineffectiveness for failure to request a limiting 

instruction regarding Appellee’s gang activity. (See Order, 3/24/15, at 1). 

The court ordered a new trial on this basis. (See id.). This timely appeal 

followed.3

The Commonwealth raises one issue for our review:

1. Whether the PCRA court erred in granting [Appellee] a new 

trial where [t]rial [c]ounsel had a reasonable basis for not 

requesting a jury instruction regarding gang activity and where 

[Appellee] was not prejudiced by [counsel’s] actions?

(Commonwealth’s Brief, at 4).

In PCRA appeals, our scope of review is limited to the 

findings of the PCRA court and the evidence on the record of the 

PCRA court’s hearing, viewed in the light most favorable to the 

prevailing party. Because most PCRA appeals involve questions 

of fact and law, we employ a mixed standard of review. We 

defer to the PCRA court’s factual findings and credibility 

____________________________________________

3

Pursuant to the PCRA court’s order, the Commonwealth filed a timely 

concise statement of errors complained of on appeal on April 10, 2015. See 

Pa.R.A.P. 1925(b). The PCRA court filed an opinion on April 15, 2015, in 

which it relied on its prior opinion entered March 24, 2015. See Pa.R.A.P. 

1925(a).
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determinations supported by the record. In contrast, we review 

the PCRA court’s legal conclusions de novo. 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 

2015) (en banc) (citations and quotation marks omitted). 

On appeal, the Commonwealth contends that the PCRA court erred in 

determining that trial counsel rendered ineffective assistance by failing to 

request a limiting instruction regarding Appellee’s gang affiliation. (See

Commonwealth’s Brief, at 12-20). It argues that counsel’s strategy was 

reasonably designed to advance Appellee’s interest where she testified the 

standard jury instruction sufficiently covered the topic. (See id. at 16). The 

Commonwealth maintains that counsel’s strategy was also reasonable where 

an instruction would have drawn additional attention to the gang evidence, 

which she wanted to minimize. (See id.). The Commonwealth further 

argues that Appellee was not prejudiced by counsel’s failure to request an 

instruction. (See id. at 18). We disagree. 

Initially, we observe that Appellee was the prevailing party at the 

PCRA level. “Thus, we must review the record in a light most favorable to 

him, not the Commonwealth.” Commonwealth v. Stewart, 84 A.3d 701, 

706 (Pa. Super. 2013), appeal denied, 93 A.3d 463 (Pa. 2014).

To prevail on a petition for PCRA relief, a petitioner must plead and 

prove, by a preponderance of the evidence, that his conviction or sentence 

resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A. 

§ 9543(a)(2). These circumstances include ineffectiveness of counsel, which 
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“so undermined the truth-determining process that no reliable adjudication 

of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). 

“Generally, counsel’s performance is presumed to be constitutionally 

adequate, and counsel will only be deemed ineffective upon a sufficient 

showing by the petitioner.” Commonwealth v. Walker, 110 A.3d 1000, 

1003 (Pa. Super. 2015) (citation omitted). 

To be eligible for relief based on a claim of ineffective 

assistance of counsel, a PCRA petitioner must demonstrate, by a 

preponderance of the evidence, that (1) the underlying claim is 

of arguable merit; (2) no reasonable basis existed for counsel’s 

action or omission; and (3) there is a reasonable probability that 

the result of the proceeding would have been different absent 

such error. . . . 

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013), appeal 

denied, 74 A.3d 1030 (Pa. 2013) (citation omitted). 

A claim has arguable merit where the factual averments, if 

accurate, could establish cause for relief. Whether the facts rise 

to the level of arguable merit is a legal determination.

The test for deciding whether counsel had a reasonable 

basis for his action or inaction is whether no competent counsel 

would have chosen that action or inaction, or, the alternative, 

not chosen, offered a significantly greater potential chance of 

success. Counsel’s decisions will be considered reasonable if 

they effectuated his client’s interests. We do not employ a 

hindsight analysis in comparing trial counsel’s actions with other 

efforts he may have taken. 

Prejudice is established if there is a reasonable probability 

that, but for counsel’s errors, the result of the proceeding would 

have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.

Stewart, supra at 707 (citations and quotation marks omitted). 
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“Evidence of a defendant’s prior criminal activity is inadmissible to 

demonstrate his bad character or criminal propensity. The same evidence 

may be admissible for various legitimate purposes, however, provided that . 

. . an appropriate limiting instruction is given.” Commonwealth v. 

Collins, 70 A.3d 1245, 1252 (Pa. Super. 2013), appeal denied, 80 A.3d 774 

(Pa. 2013) (citation omitted; emphasis addded).

Evidence of a defendant’s prior bad acts is generally 

inadmissible, and where such evidence is admitted, a defendant 

is entitled to a jury instruction that the evidence is admissible 

only for a limited purpose. Where evidence of a defendant’s 

prior bad acts is merely a fleeting or vague reference, however, 

trial counsel might reasonably decline to object or request a 

limiting instruction to avoid drawing attention to a reference that 

might have gone relatively unnoticed by the jury.

Commonwealth v. Hutchinson, 811 A.2d 556, 561-62 (Pa. 2002), cert. 

denied, 540 U.S. 858 (2003) (citations omitted; emphasis added).

Instructive to the issue before us is our Supreme Court’s decision in 

Commonwealth v. Billa, 555 A.2d 835 (Pa. 1989). In Billa, the 

Commonwealth introduced evidence of the circumstances of a prior offense 

committed by the defendant to show his intent and motive in murdering the 

victim. See id. at 838-39. The trial court failed to give a jury instruction 

explaining the limited purpose for which the evidence was relevant and 

admissible, and trial counsel did not request that the court give such 

instruction. See id. at 841-42. Our Supreme Court determined that trial 

counsel was constitutionally ineffective in failing to request an appropriate 

limiting instruction and that a new trial was necessary. See id. at 843. 
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Turning to the instant case, it is apparent that Appellee’s underlying 

claim has arguable merit, where our case law establishes that he was 

entitled to a limiting instruction on the prior bad acts evidence. See

Hutchinson, supra at 561-62; Collins, supra at 1252; Billa, supra at 

842.

Further, a review of PCRA proceedings shows that trial counsel lacked 

a reasonable basis for failing to request a limiting instruction. First, counsel 

explained that she did not request a specific instruction because she believed

the trial court’s standard instruction adequately addressed the issue of the 

gang evidence. (See N.T. PCRA Hearing, 1/29/15, at 29-30, 36-37). 

However, as discussed above, the record reflects that the court did not give 

the standard Rule 404(b) instruction. (See N.T. Trial, 12/14/11, at 403-

427; PCRA Ct. Op., at 10, 14). 

Second, counsel testified that she did not request a limiting instruction 

because she did not want to draw the jury’s attention to the gang issue. 

(See N.T. PCRA Hearing, 1/29/15, at 30, 37). However, as the 

Commonwealth acknowledges, defense counsel herself brought the gang 

issue to the jury’s attention during closing argument. (See Commonwealth’s 

Brief, at 15-16). In fact, her first comments to the jury during closing were 

on this topic. (See N.T. Trial, 12/14/11, at 378-39). Further, while we 

recognize that counsel might reasonably decline to request a limiting 

instruction to avoid drawing attention to a fleeting or vague reference that 

might have gone unnoticed by the jury, see Hutchinson, supra at 561-62, 
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the gang references in the instant case cannot be characterized as fleeting 

or vague. By counsel’s own description, “the gang issue was all over the 

place” and “an overriding theme with regard to everything.” (N.T. PCRA 

Hearing, 1/29/15, at 37). The PCRA court noted ninety-one gang references 

in the trial notes of testimony, and the jurors were questioned about their 

feelings regarding gang membership during voir dire. (See Trial Ct. Op., at 

13; N.T. Trial, 12/12/11, at 33-34). Thus, the jury’s attention had already 

been focused on the gang issue, and counsel’s failure to request an 

instruction limiting its consideration of this damaging evidence lacked a 

reasonable basis. See Billa, supra at 843.

Finally, Appellee was prejudiced by counsel’s error where the gang 

evidence was admissible only for the limited purpose of establishing motive, 

and the court did not caution the jury against regarding it as showing 

Appellee is a person of bad character or that he has criminal tendencies. 

Given the extensive nature of the references, the omission of a limiting 

instruction is sufficient to undermine confidence in the trial’s outcome. See

Stewart, supra at 707; Billa, supra at 842-43.

In sum, upon review, we discern no error in the PCRA court’s 

determination that counsel was ineffective for failing to request a limiting 

instruction regarding the gang evidence. See Reyes-Rodriguez, supra at 

779. Accordingly, we affirm the order of the PCRA court. 
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2015