J-A21029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MALIK WOODS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3826 EDA 2017

Appeal from the PCRA Order November 20, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0004555-2010, 

CP-51-CR-0006164-2010

BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 20, 2018

Appellant, Malik Woods, appeals from the November 20, 2017 order 

dismissing his first petition filed pursuant to the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On December 12, 2009, Joseph Kelsey (“Kelsey”) purchased marijuana 

from William Duval (“Duval”). Less than one hour later, Appellant and Kelsey, 

who were both armed, confronted Duval about the drug transaction. A 

struggle ensued during which Duval was shot and killed.

Appellant and Kelsey were jointly tried for Duval’s murder. During trial, 

the jury heard a redacted version of Kelsey’s statement to police. In that 

statement, Kelsey told police that Appellant shot Duval. At trial, however, all 

references to Appellant were replaced with generic references to an “other 

guy.” On February 25, 2014, Appellant was convicted of second-degree 
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murder,1robbery,2 solicitation to commit murder,3 conspiracy to commit 

robbery,4 carrying a firearm without a license,5 carrying a firearm on the 

streets of Philadelphia,6 possessing an instrument of crime,7 and retaliating 

against a witness.8 The trial court sentenced Appellant to an aggregate term 

of life imprisonment without the possibility of parole. This Court affirmed the 

judgment of sentence and our Supreme Court denied allowance of appeal. 

Commonwealth v. Woods, 122 A.3d 1133, (Pa. Super. 2015) (unpublished 

memorandum), appeal denied, 128 A.3d 1207 (Pa. 2015).

On March 23, 2016, Appellant filed a pro se PCRA petition. Counsel was 

appointed and filed an amended petition. On September 13, 2017, the PCRA 

court issued notice of its intent to dismiss the petition without an evidentiary 

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1 18 Pa.C.S.A. § 2502(b).

2 18 Pa.C.S.A. § 3701(a)(1)(i).

3 18 Pa.C.S.A. §§ 902, 2502.

4 18 Pa.C.S.A. §§ 903, 3701.

5 18 Pa.C.S.A. § 6106(a)(1).

6 18 Pa.C.S.A. § 6108.

7 18 Pa.C.S.A. § 907(a).

8 18 Pa.C.S.A. § 4953(a).
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hearing. See Pa.R.Crim.P. 907. On November 21, 2017, the PCRA court 

dismissed the petition. This timely appeal followed.9

Appellant presents two issues for our review:

1. Did the PCRA Court err in dismissing Appellant’s PCRA 

[p]etition without a hearing because trial counsel was ineffective 

for failing to file and litigate a motion in limine to exclude . . . 

[Kelsey’s statement] and for failing to object to its admission 

because it remained powerfully incriminating despite redaction? 

2. Did the PCRA Court err in dismissing Appellant’s PCRA [p]etition 

without a hearing because trial counsel was ineffective for failing 

to request a separate trial for Appellant? 

Appellant’s Brief at 4.

“When reviewing the denial of a PCRA petition, our standard of review 

is limited to examining whether the PCRA court’s determination is supported 

by evidence of record and whether it is free of legal error.” Commonwealth 

v. Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018) (citation omitted). Both 

of Appellant’s issues relate to his trial counsel’s alleged ineffectiveness. 

“[T]he Sixth Amendment to the United States Constitution and Article I, 

[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective 

counsel. This right is violated where counsel’s performance so undermined 

the truth-determining process that no reliable adjudication of guilt or 

innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d 

1194, 1197 (Pa. 2015) (cleaned up). “Counsel is presumed to have been 

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9 Appellant and the PCRA court complied with Pennsylvania Rule of Appellate 

Procedure 1925.
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effective.” Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 

2017). To prevail on an ineffective assistance of counsel claim, a petitioner 

must plead and prove that: “(1) his underlying claim is of arguable merit; (2) 

the particular course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate his interests; and, (3) but for 

counsel’s ineffectiveness, there is a reasonable probability that the outcome 

of the challenged proceeding would have been different.” Commonwealth 

v. Johnson, 179 A.3d 1153, 1158 (Pa. Super. 2018) (citation omitted). “A 

petitioner’s failure to satisfy any prong of this test is fatal to the claim.” 

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citation 

omitted).

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

failing to file a motion to suppress Kelsey’s statement. According to Appellant, 

Kelsey’s statement was inadmissible pursuant to Bruton v. United States, 

391 U.S. 123 (1968) and its progeny. In Bruton, the Supreme Court of the 

United States “held that a non-testifying co-defendant's confession implicating 

another defendant in the charged offense is inadmissible against the 

defendant because it violates his Sixth Amendment right to confront and to 

cross-examine witnesses testifying against him.” Commonwealth v. 

Freeman, 128 A.3d 1231, 1239 n.3 (Pa. Super. 2015) (citation omitted).
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“Following Bruton, the [Supreme Court of the United States] has 

approved redaction and a limiting instruction as a means of eliminating the

possible spillover prejudice arising from the admission of a non-testifying

co-defendant’s confession against that co-defendant at a joint trial.” 

Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014), citing

Richardson v. Marsh, 481 U.S. 200 (1987).10

As Appellant concedes, our Supreme Court and this Court have 

approved references to “the other guy” in place of a co-defendant’s name in 

a confession. See Appellant’s Brief at 22 (collecting cases). Nonetheless, 

Appellant relies on cases from the early 1990s and 1970s, along with recent 

federal cases, to argue that Kelsey’s statement was inadmissible because it 

contextually implicated him in Duval’s murder. In other words, he contends 

that the redactions, combined with other evidence, left the unmistakable 

impression that he was “the other guy” referenced in Kelsey’s statement. This 

argument fails because, unlike the United States Court of Appeals for the Third 

Circuit, our Supreme Court has distinguished the use of “the other guy” in 

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10 As our Supreme Court recognized in Daniels, its Bruton jurisprudence 

departs from that of the United States Court of Appeals for the Third Circuit. 

See Daniels, 104 A.3d at 294; see also Rainey v. Sec’y Pennsylvania 

Dep’t of Corr., 658 F. App’x 142, 151 (3d Cir. 2016). It is axiomatic that we 

are bound by our Supreme Court’s decisions and not those of the United States 

Court of Appeals for the Third Circuit. See Daniels, 104 A.3d at 294. Hence, 

we focus our analysis on decisions by our Supreme Court and this Court. 
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confessions from the use of a blank space that the Supreme Court of the 

United States considered in Gray v. Maryland, 523 U.S. 185 (1998). 

After Gray, our Supreme Court held that even when other evidence at 

trial, considered together with a redacted co-defendant’s confession, clearly 

implicates a defendant, the circumstances are insufficient to warrant 

suppression under Bruton. Commonwealth v. Rainey, 928 A.2d 215, 227-

228 (Pa. 2007); but see n.10 supra (Third Circuit found this was a 

misapplication of clearly established federal law). This Court has followed our 

Supreme Court’s precedent and held that “there is no Bruton violation when 

the accused is linked to the crime with other properly admitted evidence other 

than the redacted confession; it is a permissible instance of contextual 

implication.” Commonwealth v. James, 66 A.3d 771, 777 (Pa. Super.

2013), appeal denied, 77 A.3d 636 (Pa. 2013) (cleaned up). 

When determining if contextual implication violates a defendant’s rights, 

we must consider “the potential prejudice to the defendant versus the 

probative value of the evidence, the possibility of minimizing the prejudice, 

and the benefits to the criminal justice system of conducting joint trials.” 

Rainey, 928 A.2d at 228. For the reasons explained infra, there was little 

risk of prejudicing Appellant by admitting Kelsey’s statements and the benefits 

of a joint trial were significant. Hence, pursuant to our Supreme Court’s 

current decisional law, Appellant’s underlying Bruton claim lacks arguable 
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merit and he is not entitled to relief on his first claim of ineffective assistance 

of counsel.

In his second issue, Appellant argues that trial counsel was ineffective 

in failing to file a motion to sever. According to Appellant, his counsel should 

have sought to have him tried separately from Kelsey. We conclude that 

Appellant’s underlying claim lacks arguable merit and, therefore, he is not 

entitled to relief on this claim of ineffectiveness. 

Severance of defendants is governed by Pennsylvania Rule of Criminal 

Procedure 583, which provides that, “The court may order separate trials of 

offenses or defendants, or provide other appropriate relief, if it appears that 

any party may be prejudiced by offenses or defendants being tried together.” 

Pa.R.Crim.P. 583. When considering a motion to sever, a trial court should 

consider the following factors:

(1) whether the number of defendants or the complexity of the 

evidence as to the several defendants is such that the trier of fact 

probably will be unable to distinguish the evidence and apply the 

law intelligently as to the charges against each defendant; (2) 

whether evidence not admissible against all the defendants 

probably will be considered against a defendant notwithstanding 

admonitory instructions; and (3) whether there are antagonistic 

defenses.

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

denied, 22 A.2d 1033 (Pa. 2011) (cleaned up).

It is well-settled that “joint trials are preferred where conspiracy is 

charged.” Commonwealth v. Cole, 167 A.3d 49, 57 (Pa. Super. 2017), 

appeal denied, 186 A.3d 370 (Pa. 2018) (cleaned up). Moreover, the 
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“potential prejudice to a defendant from the use of non-testifying coconspirators’ statements must be balanced against the demands of judicial 

economy and desire for verdict consistency.” Commonwealth v. Oliver, 635 

A.2d 1042, 1044 (Pa. Super. 1993).

In this case, there were only two defendants and the complexity of the 

evidence as to the two defendants was low. Hence, the jury could easily 

distinguish the evidence and apply the law intelligently as to both Appellant 

and Kelsey. Thus, the first factor weighed against severance. 

As to the second factor, Appellant faced minimum prejudice from the 

admission of Kelsey’s statement. Appellant, in his statement to police, 

admitted that he was present during the murder. The evidence that Appellant 

was armed at the time of Duval’s murder and the evidence regarding the 

robbery of Duval would also have been admissible if Appellant’s trial were 

severed from Kelsey’s trial. Hence, the only portion of Kelsey’s statement that 

was not cumulative was that portion alleging that Appellant shot Duval. The 

person that shot Duval, however, was immaterial to Appellant’s seconddegree murder conviction. If Appellant conspired with Kelsey or participated 

in the robbery as either a principal or accomplice, and Duval was murdered 

during that robbery, Appellant was guilty of second-degree murder. All of the 

evidence related to Appellant’s participation in the robbery would have been 

admissible at a separate trial for Appellant and the evidence that Appellant 
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was present at the time of the murder would have also been admissible at a 

separate trial.

Thus, this case is distinguishable from Commonwealth v. Boykin, 460 

A.2d 1101 (Pa. 1983). In that case, our Supreme Court held that trial counsel 

was ineffective for failing to seek severance because the defendant would have 

benefited substantially from severance. Id. at 1103. In this case, defendant 

would not have benefited substantially from severance. 

As to the third factor, Appellant’s and Kelsey’s defenses were not so 

antagonistic as to cause prejudice. Appellant argued that Kelsey shot Duval 

while Kelsey argued that Appellant shot Duval. There was no other portion of 

Kelsey’s defense that was antagonistic to Appellant’s defense. Our Supreme 

Court has held that defendants pointing fingers at each other is insufficient 

antagonistic defenses to warrant separate trials. See Commonwealth v. 

King, 721 A.2d 763, 771 (Pa. 1998), citing Commonwealth v. Lambert, 

603 A.2d 568, 573 (Pa. 1992). 

As in King, “the following factors militated in favor of a joint trial: 

Appellants were charged with conspiracy; the majority of the crimes charged 

were the same; the circumstances giving rise to the crimes were identical with 

respect to both defendants; and the witnesses necessary to prove the crimes 

were the same.” King, 721 A.2d at 771. The prejudice Appellant faced from 

introduction of Kelsey’s statement was low. Hence, severance was not 

appropriate under Rule 583. Accordingly, Appellant’s underlying claim lacks 
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arguable merit and counsel was not ineffective for failing to file a severance 

motion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/18