J-A25015-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEWIS T. WATKINS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 470 MDA 2020

Appeal from the PCRA Order Entered March 5, 2020

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

No(s): CP-36-CR-0006151-2016

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED: JANUARY 20, 2021

Lewis T. Watkins appeals from the order that dismissed without a 

hearing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 

We vacate the order and remand for further proceedings.

This Court offered the following summary of the facts underlying 

Appellant’s convictions:

[O]n April 17, 2012, Appellant was employed at Alcoa when he 

was involved in an accident. Alcoa tested Appellant for drugs, and 

he tested positive for marijuana and cocaine. As a result, Alcoa 

sent Appellant to a pre-paid drug rehabilitation facility. As a 

condition of entering the drug rehabilitation facility, Appellant 

signed a release that prevented the facility from disclosing copies 

of Appellant’s laboratory results, including urine tests, to Alcoa. 

The facility, however, expelled Appellant on June 20, 2012, 

because he failed to comply with the requirements for treatment. 

The facility advised Alcoa that Appellant missed several treatment 

sessions, exhibited signs of intoxication, and had two positive 

urine tests. As a result, Alcoa fired Appellant on June 20, 2012.
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Subsequently, Appellant contacted Alcoa and requested 

copies of his personnel and medical file, as well as copies of the 

laboratory results. Alcoa provided Appellant’s personnel and 

medical file but because of Appellant’s signed release, it never 

possessed the laboratory results.

In 2015, the police charged Appellant with stalking Thomas 

Holbert, one of Alcoa’s human resource managers. A trial was 

held on September 26th and 27th, 2016, and Appellant was found 

not guilty. . . .

Immediately following the not-guilty verdict in September 

of 2016, Appellant began leaving numerous voicemails on 

Holbert’s work mobile phone demanding Appellant’s full personnel 

file, including the laboratory results. Over time, Appellant’s 

voicemails became increasingly belligerent and intimidating, and 

they included threats to personally appear at Holbert’s home and 

workplace to obtain his personnel file and advice to Holbert about 

how to improve the parking of his car at work. . . . The numerous 

voicemails caused Holbert to change his phone number, install a 

burglar alarm, close his blinds, and alter his daily routine.

Also in September and October of 2016, Appellant began 

leaving “intimidating” voicemails to Tracey Hustad, one of Alcoa’s 

human resources directors, requesting Alcoa to provide the 

laboratory results. Hustad consistently responded that Alcoa 

could not produce the results because it never had them. [A]ll 

voicemails were forwarded to Alcoa security.

Brian Leadbetter, chief security officer for Alcoa, . . . 

informed Appellant that Alcoa did not have the laboratory reports 

at issue. On October 10, 2016, after verifying Appellant’s address 

and email address, Alcoa sent a cease-and-desist letter

meticulously detailing Appellant’s behavior, enclosing another 

copy of Appellant’s personnel and medical files, and again denying 

any possession of any laboratory test results. Alcoa sent the files 

via FedEx, but Appellant refused to sign and receive the package. 

Alcoa reported Appellant’s activities to the police, and the police 

arrested Appellant on October 24, 2016.

Commonwealth v. Watkins, 201 A.3d 824 (Pa.Super. 2018) (unpublished 

memorandum at 2-4) (citations and footnotes omitted). Upon receiving 
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evidence of the above, a jury convicted Appellant of stalking and terroristic 

threats. The trial court sentenced Appellant to an aggregate term of three to 

ten years of incarceration, and this Court affirmed the judgment of sentence 

on direct appeal. See id. 

In March 2019, Appellant filed a timely pro se PCRA petition, and counsel 

was appointed. Counsel filed an amended petition raising one claim of 

ineffective assistance of trial counsel. Specifically, the amended petition 

averred that trial counsel was ineffective in failing to seek to exclude as unduly 

prejudicial the evidence of Appellant’s illegal drug activities and termination 

by Alcoa upon his failure to complete rehabilitation, or to even request a 

cautionary instruction to advise the jury of the limited purpose of its 

introduction. See Amended PCRA Petition, 6/18/19, at 11 (citing Pa.SSJI 

(Crim) § 3.081). Appellant noted that, in the Commonwealth’s pretrial motion 

to introduce evidence of Appellant’s cocaine and marijuana use and the reason 

for his termination, even it acknowledged “an appropriate limiting instruction”

may be warranted. Id. at 11-12 (quoting Notice of Intention to Introduce 

____________________________________________

1 The standard suggested jury instruction provides:

This evidence is before you for a limited purpose, that is, for the 

purpose of tending to [give specifics]. 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.
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Evidence of Other Crimes, Wrongs or Acts, 6/19/17, at ¶ 8). Yet, Appellant

complained, counsel did not file a motion in limine to exclude the evidence as 

unduly prejudicial, did not object to its admission, did not seek a limiting 

instruction before or immediately after it was admitted, and did not seek a 

limiting instruction in the final jury charge. Id. at 12. Additionally, Appellant’s 

petition alleged that trial counsel had no reasonable basis for failing to take 

any of those actions, and that he was prejudiced because his prior bad acts 

caused the jury to infer that he was a man of criminal tendencies and acted 

in accordance therewith. Id. at 12-13. Appellant further requested an 

evidentiary hearing to develop a record of counsel’s failure to act, and listed 

trial counsel as a witness. Id. at 14-15.

The Commonwealth filed an answer to the amended petition contending 

that trial counsel had not been ineffective. The Commonwealth maintained 

that the information was admissible because it was necessary to provide the 

jury with context and an understanding of the development of events. See

Answer to Amended Petition, 9/3/19, at 5. Further, the Commonwealth 

suggested that Appellant suffered no prejudice--since the other bad acts about 

which the jury heard “looked nothing like the crimes for which [Appellant] was 

charged and tried,” it would have reached the same verdict regardless. Id.

at 6. 
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The PCRA court issued notice of its intent to dismiss Appellant’s petition 

without a hearing pursuant to Pa.R.Crim.P. 907.

2

 Following the resolution of 

some apparent filing irregularities, the PCRA court dismissed the petition by 

order entered March 5, 2020.

3

 Appellant filed a timely notice of appeal. The 

PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal, but did submit its prior opinion to satisfy its 

obligation under Pa.R.A.P. 1925(a).

Appellant presents the following issue for our review:

At [Appellant]’s trial, the Commonwealth admitted evidence of his 

prior bad acts to tell the complete story. Specifically, it admitted 

evidence that he failed several drug tests and was unsuccessfully 

discharged from treatment. His trial counsel did not object or 

request a limiting instruction. The PCRA court dismissed the 

related ineffectiveness claim without a hearing because the 

evidence was admissible. Should this Court remand for a hearing?

Appellant’s brief at 4.

We begin with a review of the pertinent legal principles. “The standard 

of review of an order dismissing a PCRA petition is whether that determination 

is supported by the evidence of record and is free of legal error.” 

Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa.Super. 2017). “[A] PCRA 

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2 The notice indicates that the reasons for dismissal can be found in its January 

9, 2020 opinion; however, the opinion of that date contained in the certified 

record pertains to a different case entirely. The PCRA court subsequently 

corrected the error and this Court received the proper opinion. 

3 The order is dated February 4, 2020, but the docket reflects service of the 

order on March 5, 2020.
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court has discretion to dismiss a PCRA petition without a hearing if the court 

is satisfied that there are no genuine issues concerning any material fact; that 

the defendant is not entitled to post-conviction collateral relief; and that no 

legitimate purpose would be served by further proceedings.” 

Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (internal 

quotation marks omitted). Further, “[i]t is an appellant’s burden to persuade 

us that the PCRA court erred and that relief is due.” Commonwealth v. 

Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (internal quotation marks 

omitted). 

Counsel is presumed to be effective, and a PCRA petitioner bears the 

burden of proving otherwise. See, e.g., Commonwealth v. Becker, 192 

A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must plead and 

prove: “(1) the underlying legal claim is of arguable merit; (2) counsel’s action 

or inaction lacked any objectively reasonable basis designed to effectuate his 

client’s interest; and (3) prejudice, to the effect that there was a reasonable 

probability of a different outcome at trial if not for counsel’s error.” 

Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020) (internal 

quotation marks omitted). The failure to establish any prong is fatal to the 

claim. Id. at 15.

As for the arguable merit of Appellant’s claim, we observe that

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 its probative value outweighs the 
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prejudicial effect likely to result from its admission, and an 

appropriate limiting instruction is given.

Commonwealth v. Paddy, 800 A.2d 294, 307 (Pa. 2002) (citations omitted). 

See also Pa.R.E. 404(b). One such legitimate purpose “is where such 

evidence was part of the chain or sequence of events which became part of 

the history of the case and formed part of the natural development of the 

facts.” Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988). 

This special circumstance, sometimes referred to as the “res 

gestae” exception to the general proscription against evidence of 

other crimes, is also known as the “complete story” rationale, i.e., 

evidence of other criminal acts is admissible “to complete the story 

of the crime on trial by proving its immediate context of 

happenings near in time and place.”

Id. (citations omitted).

The PCRA court dismissed Appellant’s petition without a hearing because 

it determined Appellant’s claim lacked arguable merit. It explained as follows:

[T]he instances of prior bad acts discussed in [Appellant]’s 

amended PCRA petition were necessary to provide the jury with 

the history and natural development of the events leading to the 

crimes of which the [Appellant] was charged and convicted. . . . 

[T]he jury needed context as to why [Appellant] was fired from 

his job and why [he] was harassing employees of the company for 

which he used to work. Therefore, because the testimony 

discussing [Appellant]’s prior bad acts described in the amended 

PCRA petition . . . was admissible and not merely to prejudice 

[Appellant], [his] claim lacks merit and thus trial counsel was not 

ineffective for failing to object, seek a curative instruction, file a 

motion in limine and/or seek a mistrial and a limiting instruction 

during the final jury charge.

Trial Court Opinion, 1/9/20, at 5 (unnecessary capitalization omitted).
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Appellant does not pursue in this Court his argument that counsel should 

have sought to exclude the res gestae evidence. However, he observes that 

the PCRA court “sidestepped the question of whether counsel was ineffective 

for failing to request a limiting instruction” and contends that the fact that the 

evidence was admissible does not mean an instruction was unnecessary. 

Appellant’s brief at 12. He maintains that the PCRA court should have held a 

hearing on the claim. Specifically, he argues that the claim concerning 

counsel’s failure to request a limiting instruction has arguable merit, noting 

that until recently, our Supreme Court had indicated such instructions were 

mandatory when Rule 404(b) evidence was admitted, and that even now the 

High Court has recognized that they are sometimes necessary. Id. at 9-10 

(comparing Commonwealth v. Claypool, 495 A.2d 176, 179 (Pa. 1985), 

with Commonwealth v. Reid, 99 A.3d 427, 451 (Pa. 2014)). 

Appellant further contends that his petition presented issues of material 

fact as to the reasonable basis and prejudice prongs of his claim. He cites the 

averments in his petition that counsel had no reasonable basis for declining to 

request the instruction, and the lack of any response to those allegations by 

the Commonwealth. Id. at 10. Finally, Appellant presents the following 

argument as to prejudice:

The absence of a limiting instruction calls the outcome into 

question. The exact reason for limiting instructions generally and 

Suggested Instruction 3.08, specifically, is to defuse the effect of 

admissible but nevertheless prejudicial evidence. . . . The text of 

the instruction makes clear the purpose of that evidence and 

admonishes the jury that it “must not regard [the] evidence as 
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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. Because there is a natural tendency 

for a jury to use prior bad act evidence for propensity, a limiting 

instruction would have been appropriate. 

The prejudicial effect of prior-bad-acts evidence is so strong 

that it would be improper to assume that absence of a limiting 

instruction did not affect the outcome. 

Id. at 11. While Appellant acknowledges that precedent no longer mandates 

a limiting instruction in all instances, he states that our Supreme Court “has 

not waivered on [recognizing] the potential prejudicial effect of prior-bad-acts 

evidence.” Id. at 12. 

The Commonwealth’s position on appeal is that the other-bad-acts 

evidence was properly admitted to complete the story of the crime, and that 

the trial court, in its pretrial ruling permitting its admission, properly 

concluded that it was not unduly prejudicial. See Commonwealth’s brief at 

10-11. Assuming arguendo that a limiting instruction should have 

accompanied the admission of the evidence, the Commonwealth suggests that 

it does not automatically entitle Appellant to relief. Since there was no 

similarity between the prior bad acts and the crimes for which Appellant was 

tried, the Commonwealth maintains that there is no reasonable probability 

that the outcome would have been different. Id. at 13-14.

We agree with Appellant that the PCRA court abused its discretion in 

dismissing for lack of arguable merit Appellant’s claim that counsel rendered 

constitutionally-deficient assistance by failing to request a limiting instruction. 
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While its ruling that there was no arguable merit to the claim that counsel 

should have objected to its admission for any purpose is sound, there is legal 

support for Appellant’s contention that a cautionary instruction was 

warranted. See, e.g., Commonwealth v. Webb, 236 A.3d 1170, 1179 

(Pa.Super. 2020) (“Where evidence of prior bad acts is admitted, the 

defendant is entitled to a jury instruction that the evidence is admissible only 

for a limited purpose.”). Hence, Appellant satisfied the arguable-merit prong

of his cautionary-instruction claim. 

However, that does not end our inquiry because we may affirm a PCRA 

court’s decision for any reason apparent from the record. See, e.g., 

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). As 

indicated above, Appellant’s failure to satisfy any element of the

ineffectiveness test defeats his claim. See Selenski, supra at 15. 

Accordingly, we examine the remaining prongs of the test. 

The record is devoid of counsel’s reasons for opting to forgo a request 

for a limiting instruction. Appellant averred that there was no reasonable 

basis for the omission, but the PCRA court did not permit Appellant to develop 

a record on the issue at a hearing. As such, we are unable to conclude that 

affirmance is warranted based upon the existence of a reasonable basis for 

counsel’s chosen course. See, e.g., Commonwealth v. Hughes, 865 A.2d 

761, 799 (Pa. 2004) (explaining that it is not appropriate for an appellate 
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court to attempt to discern the basis for counsel’s decisions when the PCRA 

court did not hold a hearing to allow counsel to explain his reasoning). 

As for the prejudice element of Appellant’s claim, we reiterate that “[a]

PCRA petitioner establishes prejudice by demonstrating that counsel’s chosen 

course of action had an adverse effect on the outcome of the proceedings. 

. . . A criminal defendant alleging prejudice must show that counsel’s errors 

were so serious as to deprive the defendant of a fair trial, a trial whose result 

is reliable.” Commonwealth v. Hopkins, 231 A.3d 855, 875-76 (Pa.Super. 

2020) (cleaned up). 

“Our courts have long recognized that evidence of prior criminal acts 

has the potential for misunderstanding on the part of the jury.” 

Commonwealth v. Page, 965 A.2d 1212, 1221 (Pa.Super. 2009). However, 

this Court has expounded as follows upon the fluctuating amount of prejudice 

necessary to warrant relief:

The strength of the prosecution’s case from the original 

proceeding is a vital part of the reviewing court’s inquiry. A verdict 

or conclusion only weakly supported by the record is more likely 

to have been affected by defense counsel’s errors than one with 

overwhelming record support. Moreover, the ultimate focus of 

inquiry must be on the fundamental fairness of the proceeding 

whose result is being challenged. The court should be concerned 

with whether the result of the particular proceeding is unreliable 

because of a breakdown in the adversarial process that our system 

counts on to produce just results.

Commonwealth v. Johnson, 236 A.3d 63, 69 (Pa.Super. 2020) (en banc) 

(cleaned up). 
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The PCRA court, which also presided over Appellant’s trial, is in the best 

position to assess the strength of the Commonwealth’s case and whether a 

limiting instruction could have impacted the jury’s assessment of the evidence 

against Appellant. Yet it offered no analysis of the prejudice prong of 

Appellant’s limiting-instruction claim. We decline to decide in the first 

instance, on a cold record, whether Appellant is capable of proving that he 

was prejudiced by counsel’s omission. 

For these reasons, we conclude that the PCRA court abused its discretion

in dismissing Appellant’s petition without a hearing when it did not consider 

or address his claim that counsel rendered ineffective assistance in failing to 

request a limiting or cautionary instruction regarding the Rule 404(b) evidence 

offered by the Commonwealth. Therefore, we vacate the March 5, 2020 order 

dismissing his petition. We remand for the PCRA court to consider the three 

prongs of that claim, either issuing a new Pa.R.Crim.P. 907 notice explaining 

why no hearing is necessary to reject the claim or scheduling a hearing to 

resolve the matter.

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/20/2021