J-S27021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEROME KING

Appellant No. 2533 EDA 2014

Appeal from the PCRA Order of August 29, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0706191-2005

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,*JJ. 

MEMORANDUM BY STABILE, J.: FILED JULY 28, 2015

Appellant, Jerome King, is serving a life sentence for murder. King’s 

PCRA1case returns to this Court for the second time. In his prior appeal, we 

held that the PCRA court erred in granting King and his codefendant, 

Esheem Haskins, new trials. On remand, the PCRA court denied relief on 

King’s remaining claims. Upon review, we affirm in part, vacate in part, and 

remand.

In King’s direct appeal, we stated the background of the case as 

follows:

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
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On February 2, 2005, [King] came up from behind Nathaniel 

Giles (hereinafter, the victim) and, without notice, shot him in 

the back of the head. Notes of Testimony (hereinafter, N.T.) at 

6/19/06 at 190. Accompanying [King] was Haskins, who 

encouraged [King] to “Shoot him. Shoot him.” Id. at 217. 

After [King] shot the victim in the head, he stepped over the 

victim and shot him in the neck. Id. at 194. The bullet fired 

into the victim’s head was shot from approximately one foot 

away and entered through the right ear, and ultimately lodged in 

the other side of the victim’s skull. Id. at 129, 132. The second 

shot was fired approximately two feet from the victim’s body. 

Id. at 133. This shot split the victim’s cervical spine in two, and 

also ripped through the victim’s jugular vein and carotid artery. 

Id. at 134. The victim was pronounced dead at Temple 

University Hospital. Id. at 126.

On July 15, 2004, approximately six and a half months before he 

was murdered, the victim had gone to the Philadelphia Office of 

the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) 

to speak with Special Agent Doerrer about the purchase of a 

Ruger .45 caliber handgun that had been used to kill Faheem 

Thomas–Childs.[fn4] N.T. 6/19/06 at 97–100. The victim was a 

straw purchaser for his neighbor, [King]. Id. at 107, 118. The 

victim admitted to Doerrer that one of the guns he purchased for 

the defendant was a .45 caliber [firearm]. Id. at 227. In his 

statement, the victim also admitted that he purchased the gun 

used to kill Faheem Thomas–Childs in May of 2003. Id. at 105. 

Subsequently, in March of 2006, the defendant admitted to a 

prison cell-mate, Craig Lindsey, that he had previously owned a 

gun used by Kennell Spady, one of the men arrested for the 

Faheem Thomas–Childs murder. N.T. 6/20/06 at 226–227. In 

fact, Faheem Thomas–Childs was killed by a bullet fired from a 

.45 caliber gun which was subsequently traced to Giles as the 

purchaser. Id. at 245.

[FN4.] This was a very high profile case in Philadelphia, 

involving the killing of a 10 year old child during his 

morning walk to school. Faheem Thomas–Childs was 

caught in the crossfire between warring drug dealers and 

was fatally struck by one of approximately 50 bullets fired 

that morning.

Earlier in the evening on February 2, 2005, at around 8:30 p.m., 

S.T. and F.J.[fn5] entered a Chinese [food] store on the corner of 

Stillman and Cambria Streets in Philadelphia. Id. at 176. 
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Intending to carry out their food, the two girls had to wait as its 

preparation was not yet complete. Id. at 178. As they waited, 

Ms. T. exchanged pleasantries with the victim, whom she knew 

through another person. Id. at 180. Ms. T. then saw the victim 

leave the store on the corner of Stillman and Cambria Streets

and begin to speak with another person, later identified as 

Khalief Alston. Id. at 181; 223. Ms. J. also witnessed the victim 

and Mr. Alston having a conversation outside the Chinese [food] 

store. N.T. 6/20/06 at 37.

[FN5.] At the time of trial, Ms. T. and Ms. J. were aged 14 

and 16, respectively. N.T. 6/19/06 at 175; N.T. 6/20/06 

at 28. Their full names appear in the certified record.

While waiting for their food, both Ms. T. and Ms. J. noticed a car 

drive up Stillman Street to the corner where it intersected with 

Cambria Street.[fn6] After the car stopped for an unusually long 

time, the girls observed it make a left onto Cambria Street. N.T. 

6/19/06 at 183–184; N.T. 6/20/06 at 34–37. Shortly thereafter, 

both Ms. T. and Ms. J. noticed two males approach the corner of 

Stillman and Cambria Streets in the direction from which the car 

they observed had just driven. Id. at 186; N.T. 6/20/06 at 39. 

Each identified these two men as the codefendants. Id. at 186; 

N.T. 6/20/06 at 40, 71.

[FN6.] Crime scene investigators testified that both the 

Chinese [food] store and the scene of the crime on the 

corner of Stillman and Cambria Streets were well lit. N.T. 

6/19/06 at 162–163. It was possible to see both into the 

store, and out of it. N.T. 6/20/06 at 314–318.

As the co-defendants approached the victim from behind, [King] 

shot him in the head. Id. at 188, 190; N.T. 6/20/06 at 39. 

[King] fired at the victim from a distance close enough to reach 

out and touch him. N.T. 6/19/06 at 190. In the process of the

shooting of the victim, Ms. T. was able to see Haskins’[s] entire 

face. N.T. 6/19/06 at 204. Ms. J. saw the defendant from the 

side. N.T. 6/20/06 at 49–50. She also noticed sparks come 

from the black or silver pistol[-]type gun used by the defendant. 

N.T. 6/20/06 at 59–61. After being shot, the victim instantly fell 

over. N.T. 6/19/06 at 193; N.T. 6/20/06 at 41. Ms. J. then saw 

the victim being shot a second time, though she was not sure 

where this shot struck the victim. N.T. 6/20/06 at 62. As [King] 

shot the victim, both girls saw Haskins standing nearby. N.T. 

6/19/06 at 187; N.T. 6/20/06 at 71. Ms. T. heard him scream to 
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[King], “Shoot him. Shoot him.” N.T. 6/19/06 at 217. Though 

she witnessed only the defendant shoot the victim, Ms. J. saw 

Haskins with a gun.[fn7] N.T. 6/20/06 at 75.

[FN7.] At the scene of the crime, police officers found a 

nine millimeter fired cartridge casing. N.T. 6/20/06 at 

243. A nine millimeter, or .38 caliber, bullet specimen was 

also recovered by the medical examiner from the victim’s 

head. Id.

After the shooting, everyone fled the scene of the crime. Ms. T. 

watched the co-defendants leave together in a car. N.T. 

6/19/06 at 194, 209–210. Khalief Alston, with whom the victim 

was talking prior to being shot, ran up Stillman Street. N.T. 

6/19/06 at 207. Startled and frightened for their lives, both 

witnesses also fled and headed to the home of Ms. T. N.T. 

6/19/06 at 207; N.T. 6/20/06 at 47–48. Ms. T. recalled running 

past the victim and seeing him lying motionless, surrounded by a 

lot of blood. N.T. 6/19/06 at 208–209. Ms. J. related that Ms. 

T. had screamed in fear after seeing the shooting and continued 

to cry throughout the ordeal. [N.T.] 6/20/06 at 48. On their 

way to the home of Ms. T., the girls were almost hit by the car in 

which the [co-] defendants were fleeing. Id. at 52.

Immediately after the crime, Ms. J. went with her aunt to give a 

statement to Homicide detectives. Id. at 154. She also 

returned to Homicide on two subsequent occasions. On 

February 23, 2005, Ms. T. went with her mother to give a 

statement to Homicide detectives. She also returned to 

Homicide to provide additional information on two subsequent 

occasions.[fn8]

[FN8.] Ms. T. and Ms. J. both returned to the Homicide 

Division on March 14, 2005[,] and on April 16, 2005, to 

provide additional information about the murder they had 

witnessed. N.T. 6/22/06 at 22, 24, 26–27.

On April 9, 2005, Detective Ron Dove, then of the Central 

Detectives Division, was working on unrelated matters with his 

partner, Detective Jim Waring, in the neighborhood where the 

victim was murdered. Detective Dove spoke with [King]. N.T. 

6/20/06 at 170–171. Noticing his “black T-shirt with a red stop 

sign on it that said ‘Stop Snitching’ across it”, Detective Dove 

asked him if the T-shirt was a warning. Id. at 175. [King] 

answered “Yes”, and pointed at the top rear of his shirt which 

revealed a drawing of a tombstone with the letters R.I.P. on it. 
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Id. Detective Dove asked him, “Is that what happens to people 

who snitch on you?” Id. He replied, “Yes.” Id.

Approximately 20 minutes later, at another location in the 

neighborhood, Detective Dove saw Haskins, in [King’s] company, 

and wearing the same “Stop Snitching” T-shirt. Id. at 178–179.

Upon learning that [King] and Haskins were wanted for murder, 

Detective Dove began looking for them in the neighborhood 

where the victim was killed. N.T. 6/22/06 at 180. He never 

again saw them there. Id. at 181. On May 6, 2005, based on 

information provided to the police, Detectives Dove and Waring 

learned that the co-defendants were staying together in room 

312 of a Holiday Inn hotel on City Line Avenue. N.T. 6/20/06 at 

182–183. The detectives found the two men in that room and 

arrested them for the murder of the victim. Id. at 184.

Commonwealth v. King, 959 A.2d 405, 407-09 (Pa. Super. 2008) (quoting 

Trial Court Opinion, 7/18/07, at 1-5).

Following trial, the jury convicted King of first-degree murder, criminal 

conspiracy, and carrying a firearm on a public street in Philadelphia.2 The 

trial court imposed a life sentence followed by a consecutive term of years. 

On direct appeal, this Court affirmed in a published opinion. See also 

Commonwealth v. Haskins, 953 A.2d 599 (Pa. Super. 2008) (unpublished 

memorandum) (affirming in Haskins’s case). Notably, we rejected King’s 

claims of error in admitting (1) the victim’s statements to a federal 

investigator that King solicited him to buy the handgun that killed ThomasChilds; and (2) testimony that Detective Dove saw King wearing a “Stop 

Snitching” t-shirt. 

____________________________________________

2 18 Pa.C.S.A. §§ 2502(a), 903(a), and 6108, respectively. Haskins was 

convicted of first-degree murder and criminal conspiracy. 
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King and Haskins filed timely first PCRA petitions. Both petitioners 

raised claims that the Commonwealth violated Brady v. Maryland, 373 U.S. 

83 (1963), by not disclosing a letter seized from Alston, in which he stated 

that Ernest “Ezze” Cannon—and not King and Haskins—shot the victim. The 

PCRA court granted new trials to King and Haskins. The Commonwealth’s 

appeals to this Court were consolidated, and we reversed.3 

Commonwealth v. Haskins, 60 A.3d 538, 552 (Pa. Super. 2012), appeals 

denied, 78 A.3d 1090 (Pa. 2013). 

On remand, the PCRA court addressed King’s remaining claims. After 

briefing and argument, the PCRA court determined that King was not entitled 

to post-conviction relief. Therefore, it sent King a Pa.R.Crim.P. 907 notice of 

intent to dismiss his PCRA petition without a hearing, and then a final order 

dismissing the petition. King appealed, raising eleven issues in his concise 

statement of errors complained of on appeal. The PCRA court issued a 

responsive opinion addressing King’s issues.

Before this Court, King has reduced his assignments of error to five:

____________________________________________

3 To prevail on a Brady violation claim, a defendant must show “(1) the 

evidence was suppressed by the Commonwealth, either willfully or 

inadvertently; (2) the evidence was favorable to the defendant; and (3) the 

evidence was material, in that its omission resulted in prejudice to the 

defendant.” Haskins, 60 A.3d at 547 (citing Commonwealth v. Dennis, 

17 A.3d 297, 308 (Pa. 2011)). King’s and Haskins’s Brady violation claims 

failed because the Alston letter was not material. Id. at 552.
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1. After concluding that trial counsel performed deficiently in 

failing to object to the absence of a Kloiber[4]instruction, did 

the PCRA court commit legal error in its prejudice analysis 

where it focused exclusively on the inculpatory aspects of the 

eyewitness testimony without considering its inherent 

weakness or how it was impeached, failed to consider the 

strength of the defense case that at third party was the actual 

killer, and failed to consider how a proper instruction would 

have affected the jury in conjunction with the exculpatory 

evidence concealed by the Commonwealth as found by this 

Court on the prior appeal?

2. Did the PCRA court err in denying a hearing on the claim that 

trial counsel was ineffective for failing to request an 

instruction on how the jury was to consider evidence that a 

central Commonwealth witness was under investigation for 

serious federal crimes at the time he gave his statement to 

police?

3. Did the PCRA court err in denying without a hearing the claim 

that prior counsel were ineffective for failing to preserve the 

claim that the trial court erred in restricting [King’s] ability to 

establish that a third party committed this crime?

4. Did the PCRA court err in denying without a hearing the claim 

challenging prior counsel’s ineffective assistance in failing to 

(a) preserve the trial court’s error in admitting overwhelming 

“prior bad acts” evidence that was irrelevant to begin with or 

whose prejudicial impact far outweighed its minimal relevant 

and (b) request cautionary instructions limiting the jury’s 

consideration of this evidence for the limited purposes for 

which some of it was admitted?

5. Did the PCRA court err in denying the cumulative impact 

claim?

Appellant’s Brief at 3-4.

We review the denial of relief under the PCRA “to determine whether 

the findings of the PCRA court are supported by the record and free of legal 

____________________________________________

4 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014) 

(quotation omitted). The PCRA court’s credibility determinations bind the 

appellate court when they are supported by the record. See 

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). However, we 

review de novo the PCRA court’s legal conclusions. See id.

A PCRA petitioner is eligible for relief if he pleads and proves by a 

preponderance of the evidence that his conviction and sentence resulted 

from, among other grounds, “ineffective assistance of counsel which, in the 

circumstances of the particular case, 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). The petitioner also must prove that 

the claim is not previously litigated or waived, and that the failure to raise 

the claim previously was not the result of any rational, tactical, or strategic 

decision by counsel. Id. § 9543(a)(3) and (4). 

We presume that prior counsel rendered effective assistance. Paddy, 

15 A.3d at 442; Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) 

(“We . . . presume that counsel is acting effectively.”). A PCRA petitioner 

overcomes this presumption by meeting all three prongs of the Pierce test: 

“(1) the underlying legal claim has arguable merit; (2) counsel had no 

reasonable basis for his or her action or inaction; and (3) the petitioner 

suffered prejudice because of counsel’s ineffectiveness.” Paddy, 15 A.3d at 

442. “If a petitioner fails to satisfy any prong of the ineffectiveness inquiry, 
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a claim of ineffective assistance of counsel will be rejected.” Eichinger, 108 

A.3d at 830-31.

With this framework in mind, we turn to the issues King raises on 

appeal.

1. No Kloiber Charge

King claims that trial counsel was ineffective for failing to preserve a 

claim of error when the trial court did not give a Kloiber charge. The basis 

of this claim is F.J.’s failure to identify King as the shooter in her initial 

statement to police. The record shows that trial counsel requested a 

Kloiber charge, the trial court denied his request, and trial counsel did not 

except to the charge given as required by Pa.R.Crim.P. 647(B). See N.T. 

Trial, 6/21/06, at 3-4; N.T. Trial, 6/22/06, at 258. The PCRA court found 

that King’s claim had arguable merit, but that he could not show prejudice. 

As set forth below, we find that King’s claim lacks arguable merit.

A Kloiber charge admonishes the jury about the unreliability of certain 

eyewitness identification testimony. Commonwealth v. Rios, 920 A.2d 

790, 804 (Pa. 2007), overruled on other grounds by, Commonwealth v. 

Tharp, 101 A.3d 736 (Pa. 2014). A defendant is entitled to a Kloiber

charge if the witness (1) could not clearly see the defendant; (2) 

equivocates in identifying the assailant; or (3) failed to identify the 

defendant on one or more prior occasions. Id.; see also Pa. Sugg. Stand. 

Jury Instr. (Crim.) 4.07B (setting forth the suggested standard Kloiber

charge), cited with approval in Commonwealth v. Trivigno, 750 A.2d 243, 
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253 (Pa. 2000) (Opinion Announcing the Judgment of the Court). A 

defendant, however, is not entitled to a Kloiber charge if the witness failed 

to identify the defendant out of fear of endangerment. Commonwealth v. 

Reid, 99 A.3d 427, 449 (Pa. 2014). 

Our case law makes clear that the need for a Kloiber charge 

focuses on the ability of a witness to identify the defendant. 

Our Commonwealth’s decisional law has long held that prior 

inconsistent statements based upon fear of endangerment do 

not equate to a prior failure of ability to identify a defendant. 

Id. (emphasis in original). In other words, non- or misidentification out of 

fear of reprisal does not concern a witness’s ability to identify the 

defendant. 

At trial, F.J. testified that while she and S.T. were inside the Chinese 

takeout restaurant, they saw a car drive down Cambria Street, stop for a 

few seconds, and then keep going. Through the restaurant’s plate glass 

window, F.J. saw the victim conversing with Alston. Then, she saw King 

approach the victim from behind and shoot him in the head. Philadelphia 

homicide detectives interviewed F.J. on the night of the murder. During the 

interview, she described the shooter as a “Black male, 25-27 years old, 6’ to 

6’3’’, medium built, brown skin, wearing a black or dark blue skully.” PCRA 

Court Opinion, 11/10/14, at 10-11 (quoting Commonwealth’s Trial Exhibit 

20). The record reflects that King is much shorter than six feet. See N.T. 

Trial, 6/20/06, at 98-100. F.J. testified at trial that during the interview, she 

was scared:
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Q. [by the Commonwealth] Can you tell—before we go into the 

statement, can you tell the ladies and gentlemen of the jury 

what you were thinking when you sat down to speak to a

Homicide detective in the Homicide Division two hours after the 

shooting? What were you thinking?

[Counsel for King]: Objection, Your Honor.

THE COURT: Overruled.

A. [by F.J.] What was I thinking?

Q. [by the Commonwealth] Yes.

A. I was scared. Like, I didn’t want to really say nothing 

because I—it was just—like I was really scared, so . . .

Q. You said that you were scared and you didn’t want to say 

anything.

A. ‘Cause I was just too scared to say anything.

N.T. Trial, 60/20/06, at 57. F.J. was also questioned during redirect 

examination about her fear. During her second interview by Homicide 

Division detectives, F.J. was asked whether she had left out details during 

her first interview:

Q. [by the Commonwealth] [Haskins’s counsel] asked you 

questions about whether you were misleading or words to that 

effect. Do you remember being asked questions about this, 

specifically third question down. Were you interviewed here at 

Homicide before? Remember being asked that question?

A. [by F.J.] Yes.

Q. Tell the ladies and gentlemen of the jury what you told the 

detectives on April 16th of 2005. Read them your answer.

A. It say, “Yes.”

Q. (Reading): Yes. But I was scared because I was there when 

he was shot, and I saw the people who did this. 

Those are the words that you spoke to the detectives?

A. Yes, it was.
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Q. Question: Did you tell the entire truth when you were first 

interviewed?

Answer: No, because I was really scared. I did not want—I did 

not want people to know that I was there, but some neighbors 

saw me out there. 

Is that what you told the detective?

A. I don’t remember saying that.

N.T. Trial, 6/20/06, at 112-13 (boldface in original). Philadelphia Police 

Officer John Benham went to F.J.’s house the night of the murder to take her 

to be interviewed. He testified that, at F.J.’s house, the lights were turned 

off and the curtains were drawn. Id. at 152-53. When he finally coaxed F.J. 

to come out, she was “very distraught, crying . . . very shaken up[, v]ery 

scared.” Id.

The PCRA court found arguable merit to King’s claim, because during a 

sidebar at trial, the Commonwealth conceded that F.J.’s initial statement to 

police contained an equivocal identification of the shooter. See PCRA Court 

Opinion 11/10/14, at 11 (quoting N.T. Trial, 6/20/06, at 63-64). We 

disagree with the PCRA court’s evaluation, because—in context—the 

Commonwealth was informing the trial judge that F.J. equivocated because 

she was scared. See N.T. Trial, 6/20/06, at 62-68 (“When [F.J.] first 

described these events, she was scared.”).

Thus, a Kloiber charge was inapposite. F.J. initially equivocated in 

identifying King as the shooter because she was scared. Our case law 

makes clear that non-identification out of fear does not equate to an inability 

to identify. Reid, supra. There is no evidence that F.J. could not clearly 
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see King, who she knew from the neighborhood. The record contradicts 

King’s claim that hooded sweatshirts obscured his and Haskins’s faces. See

PCRA Court Opinion, 11/10/14, at 9-10. Regarding the second and third 

circumstances supporting a Kloiber charge, the evidence supports the 

Commonwealth’s argument that F.J. did not initially identify King as the 

shooter because of fear. Thus, her failure to identify had nothing to do with 

her ability to see King. See Reid, supra. Moreover, after her first police 

interview, F.J. consistently identified King as the shooter and Haskins as his 

accomplice, including at trial. Therefore, a Kloiber instruction was not 

required in King’s case.

In sum, King’s claim of ineffectiveness regarding counsel’s failure to 

seek a Kloiber charge lacks arguable merit. We are not bound by the PCRA 

court’s contrary legal conclusion, and we may affirm on any basis supported 

by the record. See Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. 

Super. 2009). Because King cannot meet the arguable merit prong of the 

Pierce test, his first claim fails. See Eichinger, 108 A.3d at 830-31. 

Accordingly, we need not address whether the absence of a Kloiber

instruction prejudiced King.

2. Jury instruction regarding the victim’s statement

King next argues the PCRA court erred in denying a hearing on his 

claim that trial counsel was ineffective for failing to request an instruction 

regarding the statement of the victim. Specifically, King argues his trial 

counsel should have requested the trial court to instruct the jury that the 
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victim had a motive to lie when speaking to federal authorities, because the 

victim was under investigation for serious federal crimes.

[ATF] Special Agent Doerrer interviewed Mr. Giles[, the victim,] 

in July 2004 concerning an investigation into the purchase of a 

.45 caliber handgun used in the killing of Faheem Thomas–

Childs. Following a pretrial evidentiary hearing pertaining to the 

admissibility of evidence, the trial court permitted 

Commonwealth witness Special Agent Doerrer to read Mr. Giles’s 

statement into evidence. The verbatim rendition revealed that: 

(1) [King] solicited Mr. Giles’s assistance on two separate 

occasions to purchase three handguns, a .45 caliber Ruger, 

another .45 caliber pistol, and a .357 caliber Smith & Wesson; 

(2) [King] promised compensation to Mr. Giles in exchange for 

making the purchases as [King] could not pass the background 

checks required to purchase the handguns himself; and (3) Mr. 

Giles was afraid of [King]. 

King, 959 A.2d at 411 (citing N.T. Trial, 6/19/06, at 120-21). On direct 

appeal, we noted that the victim’s statement, whether true or false, was 

evidence of King’s motive to silence the victim by murdering him:

In the case sub judice, the Commonwealth sought to establish 

[King’s] retaliatory motive for killing Mr. Giles by showing that 

Mr. Giles cooperated in the Thomas–Childs murder investigation 

wherein he revealed potentially incriminating information 

concerning [King]. To that extent, the jurors were not 

asked to believe material details of the two straw arms 

purchases, that is, the truth of the matter asserted, to 

comprehend the probative value of Mr. Giles’s statement. 

Indeed, we concur with the Commonwealth’s premise that the 

evidence was highly relevant to establish the motive for the 

shooting. We therefore conclude that the statement, if it had 

been offered solely as motive, would not have constituted 

hearsay and would have been properly admitted.

Id. at 412 (emphasis added). However, since the jury was given no limiting 

instruction, the statement was to be considered for its truth, i.e., as 
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hearsay, vis-à-vis admissibility. Id. We held that the trial court properly 

admitted the statement as proof that King murdered the victim to prevent 

him from testifying against King, under the forfeiture by wrongdoing hearsay 

exception. See Pa.R.E. 804(b)(6). 

This claim lacks arguable merit. Assuming, for argument’s sake, that 

the victim lied to Special Agent Doerrer, those lies do not diminish King’s 

motive to murder. Indeed, we concluded as much on direct appeal. King 

killed the victim because of his mere cooperation, not necessarily because he 

was truthful in becoming a federal informant. The purpose of impeachment 

is to undermine the truthfulness of a witness’s testimony or, as here, a 

declarant’s hearsay statement. See Black’s Law Dictionary 820-21 (9th ed. 

2009) (defining impeachment, in relevant part, as “the act of discrediting a 

witness, as by catching the witness in a lie or by demonstrating that the 

witness has been convicted of a criminal offense”). King repeatedly notes 

the jury was never informed how to assess the victim’s bias and motive to 

fabricate (because of potential federal charges), but he fails to acknowledge 

that the victim’s statement was relevant even if completely fabricated.

King cites cases concerning an accused’s ability to inquire into a 

testifying witness’s pending criminal proof of bias or motive to lie. See

Appellant’s Brief at 29-32. For example, Commonwealth v. Evans, 512 

A.2d 626, 631 (Pa. 1986), held that trial court erred in limiting the 

defendants’ cross-examination of a cooperating coconspirator. Similarly, in 

Commonwealth v. LaMassa, 532 A.2d 450, 451 (Pa. Super. 1987), we 
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held the trial court erred in refusing an instruction on the Commonwealth’s 

principal witness’s prior convictions for crimes of falsehood. In 

Commonwealth v. Thompson, 739 A.2d 1023, 1030-31 (Pa. 1999), our 

Supreme Court found “problematic” the trial court’s instruction that the jury 

should not consider a witness’s open criminal cases, though it ultimately 

rejected the claim of error.

In all of these cases, however, the witnesses’ testimony was relevant 

for its truth, because it incriminated the defendants. The coconspirator 

Evans placed the defendants at the scene of the armed robbery and 

murder. Evans, 512 A.2d at 629. The principal witness in LaMassa was 

the victim who testified the defendant kidnapped and robbed him. 

LaMassa, 532 A.2d at 450-51. Finally, the witness in Thompson testified 

that the defendant confessed to killing the victim for money. Thompson, 

739 A.2d at 1027, 1030. None of these cases concerned statements that 

were relevant regardless of whether they were true—as here. Again, the 

victim’s statement was relevant merely because it existed. The only purpose 

for King’s proposed instruction would have been to cast doubt on the truth of 

the victim’s statement—a statement relevant even if false. In sum, this 

claim lacks arguable merit.

King’s claim additionally fails because he cannot show prejudice. The 

only prejudice he claims is the inability to impeach the victim’s statement. 

King fails to state how the absence of a cautionary instruction undermined 
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the jury’s guilty verdict. Therefore, the PCRA court did not err in denying 

King a hearing on this claim.

3. Failing to preserve claim that trial court restricted King’s ability 

to shift guilt to a third party

Next, King claims the PCRA court erred in denying him the ability to 

present testimony, through Khalief Alston, that Ernest Cannon was the 

actual murderer.5 Specifically, King claims that trial counsel erred in failing 

to object when the trial court excluded evidence of Cannon’s motive to 

murder the victim, and of Cannon’s multiple pending murder charges. 

Recognizing that the latter evidence is propensity evidence (Cannon 

allegedly murdered other people; therefore he murdered Giles in accordance 

with his character trait as a murderer), King suggests Cannon’s other acts 

must be admitted as a matter of due process so that King could attempt to 

exonerate himself. This claim lacks arguable merit.

“A defendant has a fundamental right to present evidence, so long as 

the evidence is relevant and not subject to exclusion under our Rules of 

Evidence.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014) 

____________________________________________

5 Alston and Cannon are each currently serving multiple life sentences for 

murder. See Commonwealth v. Cannon, 22 A.3d 210, 215 & n.4 (Pa. 

2011) (reversing this Court’s granting of a new trial to Cannon); 

Commonwealth v. Alston, No. CP-51-CR-0700412-2005, 2013 WL 

9863768 (C.P. Phila. Oct. 10, 2013) (denying PCRA relief to Alston in an 

unrelated case), aff’d, 107 A.3d 237 (Pa. Super. 2014) (unpublished 

memorandum).
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(emphasis added). In this case, King essentially claims trial counsel 

ineffectiveness, because he did not more aggressively use evidence tending 

to show that Cannon killed the victim. “Reverse Rule 404(b) evidence” 

refers to a defendant’s use of other acts evidence under Pa.R.E. 404(b)6to 

show that a third party had committed the crime at issue. See United 

States v. Stevens, 935 F.3d 1380, 1404 (3d Cir. 2001) (construing the 

materially similar Fed.R.Evid. 404(b)). No Pennsylvania court has squarely 

addressed the use of reverse Rule 404(b) evidence, though several have 

mentioned the concept obliquely. See, e.g., Patterson, 91 A.3d at 71-72 

____________________________________________

6

Pennsylvania Rule of Evidence 404(b) provides:

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence 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.

(2) Permitted Uses. This evidence may be admissible for another 

purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident. In a criminal case this evidence is admissible 

only if the probative value of the evidence outweighs its potential 

for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the prosecutor 

must provide reasonable notice in advance of trial, or during trial 

if the court excuses pretrial notice on good cause shown, of the 

general nature of any such evidence the prosecutor intends to 

introduce at trial.

Pa.R.E. 404(b).
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(holding trial court did not err in precluding evidence of a third party’s 

motive to commit the crime, because “[a]ppellant offered no evidence to 

suggest that [the third party] was charged, let alone convicted, of a crime 

that bore substantial similarity to those with which [a]ppellant was 

charged”); Commonwealth v. Weiss, 81 A.3d 767, 806-07 (Pa. 2013) 

(“[T]he defense may introduce evidence that someone else committed a 

crime which bears a highly detailed similarity to the crime with which the 

defendant is charged.”) (internal quotation omitted); Commonwealth v. 

Chmiel, 889 A.2d 501, 534-35 (Pa. 2005) (holding that trial court properly 

precluded defendant from questioning witness concerning prior burglary 

which did not fall within permitted purposes of Rule 404(b) but merely 

tended to establish action in conformity with the prior act).

King unabashedly admits that he believes trial counsel should have 

introduced evidence of Cannon’s murder charges to show that Cannon had 

the propensity to murder, and therefore killed the victim. See Appellant’s 

Brief at 40. Rule 404(b)(1) expressly prohibits this tactic, and Stevens, 

cited by King, is both inapposite and distinguishable. 

As explained herein, [the appellant] misreads Stevens, and we 

write to clarify that Rule 404(b)’s proscription against 

propensity evidence applies regardless of by whom, and 

against whom, it is offered. Under Stevens, we grant 

defendants more leeway in introducing “bad acts” evidence 

under one of the Rule 404(b) exceptions—requiring only that its 

probative value is not substantially outweighed by Rule 403 

considerations such as unfair prejudice, undue delay or 

confusion of the issues. But Stevens did not afford 

defendants more leeway in admitting propensity evidence 
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in violation of the prohibition of Rule 404(b). Because the 

only purpose for which [the appellant] sought to introduce 

[another person’s] prior conviction was to show that he has a 

propensity to carry firearms, the [d]istrict [c]ourt correctly 

excluded the evidence.

United States v. Williams, 458 F.3d 312, 314 (3d Cir. 2006); see also 

Wynne v. Renico, 606 F.3d 867, 870-71 (6th Cir. 2010) (holding habeas

petitioner’s constitutional right to present a complete defense was not 

violated by state rule of evidence that precluded the use of propensity 

evidence against a third party). Thus, a criminal defendant cannot use a 

third party’s murder charges to show that the third party committed the 

instant murder merely because the third party has a general propensity to 

murder. 

We find Williams, together with Patterson, Weiss, and Chmiel, 

persuasive. Rule 404(b) precluded King from admitting evidence of 

Cannon’s murders to show that he had a propensity to murder and, 

therefore, killed the victim in this case. King argues that he should have 

been able to introduce propensity evidence tending to show Cannon was the 

real killer because it was highly relevant. That argument misses the point, 

because Rule 404(b)(1) makes propensity evidence inadmissible subject to 

Rule 404(b)(2)’s limited exceptions. See Commonwealth v. Hicks, 91 

A.3d 47, 53 (Pa. 2014). King’s claim of an alleged lack of prejudice to the 

Commonwealth also misses the mark. The prejudice inquiry required in 

criminal cases by the second sentence of Rule 404(b)(2), see footnote 6, 

supra, comes into play only if the other acts evidence is admissible under 
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Rule 404(b)(2), i.e., for a purpose other than showing propensity. In other 

words, any lack of prejudice does not nullify Rule 404(b)(1)’s prohibition 

against propensity evidence. Because King’s purpose in introducing 

Cannon’s murder charges was to show his propensity to commit murder—

which is barred by Rule 404(b)(1)—he cannot show that his claim has 

arguable merit.

Additionally, we reject King’s argument to the extent he contends trial 

counsel was ineffective in failing to flesh out Cannon’s motive to kill the 

victim. We have reviewed the record, and King has not stated what 

evidence of Cannon’s motive to kill was wrongly excluded because of trial 

counsel’s ineffectiveness. Further, King has failed to link Cannon’s unrelated 

murder charges in any meaningful way to the killing of the victim. The 

evidence shows that Cannon killed his other victims after robbing them, see

N.T. Trial, 6/22/06, at 80-84, while the victim here was murdered in 

retaliation for cooperating with authorities.

Even if King could show arguable merit, he cannot show prejudice. 

Much of the evidence that King claims the trial court excluded was actually 

admitted. First, Alston testified that Cannon told him, upon seeing the 

victim, “[t]here go that boy supposed to be telling on Lemon[7]” N.T. Trial, 

6/21/06, at 102. Although the trial judge admonished Alston not to testify 

____________________________________________

7

“Lemon,” King’s nickname, was extensively referenced at trial.
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about what other people said, she did not strike from the record Alston’s 

testimony. Second, Alston testified that Cannon—and not King—murdered 

the victim by shooting him in the head. Id. at 103. King’s trial counsel 

emphasized Alston’s testimony in closing argument, telling the jury, “[i]f 

Ernie Cannon committed this murder, then you got the wrong man.” N.T. 

Trial, 6/22/06, at 125.

Also, despite objections from the Commonwealth, Alston testified 

about his knowledge of Cannon’s murders. Alston admitted to giving a 

statement to police about murders he and Cannon allegedly committed. 

N.T. Trial, 6/21/06, at 169. Alston further admitted that he and Cannon 

were suspected of murdering Robert Sample. Id. at 174-76. He stated that 

Cannon confessed to him that he murdered a man named “Gene.” Id. at 

176-77. Furthermore, Philadelphia Police Detective Gerald Lynch testified 

that Alston and Cannon were suspected of committing robbery/murders 

together. N.T. Trial, 6/22/06, at 80-84. Thus, the jury was aware that 

Cannon was accused of multiple murders. 

In sum, we reject King’s claim. The PCRA court correctly found that it 

lacks arguable merit, and King additionally cannot show prejudice. 

4. Failing to preserve error on prior bad acts evidence

Next, King contends that prior counsel were ineffective for failing to 

preserve error related to the admission of King’s prior bad acts. This other 

acts evidence included (1) evidence linking King to the high-profile murder 

of Thomas-Childs; (2) his status as leader of the “Lemon squad” of 
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gangsters; (3) his illegal purchase and sale of handguns; (4) his involvement 

in an unrelated drowning murder; and (5) his opinion that citizens should 

not cooperate with police. King contends that such evidence was wrongly 

admitted, and trial counsel was ineffective in failing to object and also in 

failing to request cautionary instructions.

We reject King’s claim to the extent he contends trial counsel was 

ineffective for allowing other acts into evidence. The PCRA court noted that 

the above evidence was admissible for other purposes permitted under Rule 

404(b)(2). We find no error in the PCRA court’s reasoning. Indeed, the 

admissibility of several of the above items was previously litigated on direct 

appeal. See King, 959 A.2d at 418-19 (determining that trial court did not 

abuse its discretion in admitting testimony relating to drowning murder and 

King’s anti-authority sartorial choices). The PCRA bars relief if a claim is 

previously litigated. See Commonwealth v. Tedford, 960 A.2d 1, 16 (Pa. 

2008) (noting that a PCRA petitioner cannot satisfy the arguable merit prong 

of the Pierce test where the underlying legal claim was rejected on direct 

appeal).

However, merely because the evidence was admissible does not 

resolve whether trial counsel should have requested instructions to the jury 

explaining the limited purpose for its admissibility. Indeed, when a 

defendant’s prior bad acts are properly admitted other than as propensity 

evidence, a defendant is entitled to a jury instruction that the other acts are 

not proof of his guilt. Commonwealth v. Billa, 555 A.2d 835, 841-42 (Pa. 
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1989), abrogated on other grounds by, Commonwealth v. Freeman, 827 

A.2d 385 (Pa. 2003); Commonwealth v. Amos, 284 A.2d 748, 750 (Pa. 

1971) (“Of course, the potentially prejudicial effect of the introduction of the 

defendant’s record requires that the jury be made aware of the limited 

purpose of such evidence.”). In Billa, for example, the Commonwealth 

admitted evidence of the defendant’s prior rape and attempted murder of 

another victim to prove his motive and intent to murder, as well as to rebut 

his claim of accidental death. Billa, 555 A.2d at 841. Our Supreme Court 

upheld the trial court’s admission of this evidence, but nevertheless reversed 

the defendant’s conviction, holding that trial counsel was ineffective for 

failing to request an appropriate limiting instruction. Id. at 843.

In this case, we are constrained to disagree with the PCRA court’s 

conclusion that the evidence’s admissibility meant that trial counsel was not 

ineffective for failing to request a cautionary instruction. As stated in Billa, 

where other acts evidence is admissible under Rule 404(b), a defendant is 

entitled to a cautionary instruction so that the jury does not use the other 

acts as propensity evidence. Nor can we agree that the reference to King’s 

other criminal acts was fleeting. Rather, it pervaded the entire trial, as King 

notes in his brief. 

In finding that trial counsel’s failure to request a limiting instruction 

has arguable merit, we express no opinion as to the other two prongs of the 

Pierce test. A finding that trial counsel had no reasonable basis for his or 

her chosen course of action generally requires evidence, and the PCRA court 
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dismissed King’s claim without a hearing. Cf. Commonwealth v. ReyesRodriguez, 111 A.3d 775, 783-74 (Pa. Super. 2015) (en banc) (holding 

that, where a PCRA petitioner fails to develop an evidentiary record at a 

hearing, he cannot show counsel lacked a reasonable basis for failing to 

request cautionary instructions). We further decline to address whether 

King was prejudiced by any ineffectiveness in this regard. We hold only that 

King is entitled to an evidentiary hearing to develop a record to support his 

claim.

5. Cumulative prejudicial impact of claims

In his final claim, King argues that the cumulative prejudicial impact of 

his claims entitles him to relief. When post-conviction claims are rejected 

for lack of merit or arguable merit, no basis exists for an accumulation claim. 

Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012). “When the 

failure of individual claims is grounded in lack of prejudice, however, then 

the cumulative prejudice from those individual claims may properly be 

assessed.” Id.

Although we remand for an evidentiary hearing only on King’s fourth 

claim only, King cannot ultimately prevail, i.e., gain a new trial, on his 

accumulation claim. This is so because he has only one claim with merit or 

arguable merit. In this appeal, we have found that all other substantive 

claims of ineffective assistance lack arguable merit. In King’s prior PCRA 
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appeal, we found that King’s Brady violation claim lacked merit, because he 

could not show the withheld evidence was material.8 Haskins, 60 A.3d at 

552. Thus, because King possesses only one claim of arguable merit, it is 

impossible for him to show cumulative prejudice. As our Supreme Court has 

repeatedly stated, “‘no number of failed claims may collectively warrant 

relief if they fail to do so individually.’ Accordingly, where claims are 

rejected for lack of arguable merit, there is no basis for an accumulation 

claim. Commonwealth v. Bomar, 104 A.3d 1179, 1216 (Pa. 2014) 

(quoting Commonwealth v. Washington, 927 A.2d 586, 617 (Pa. 2007)).

In sum, the PCRA court erred in finding that King’s fourth claim lacked 

arguable merit, and therefore abused its discretion in denying a hearing on 

that claim. It did not err in denying relief on all other claims raised on 

appeal. Accordingly, we affirm in part, vacate in part, and remand for an 

evidentiary hearing limited to King’s fourth claim only, i.e., whether he can 

meet the other prongs of the Pierce test regarding trial counsel’s failure to 

____________________________________________

8 We cannot revisit our prior holding in this appeal. See Commonwealth v. 

Viglione, 842 A.2d 454, 46-162 (Pa. Super. 2004) (en banc) (quoting 

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)) (“Among the 

related but distinct rules which make up the law of the case doctrine are that 

. . . upon a second appeal, an appellate court may not alter the resolution of 

a legal question previously decided by the same appellate court . . . .”). 

However, even though King did not prevail in the prior appeal, we reiterate 

our disapproval of the Commonwealth’s conduct. See Haskins, 60 A.3d at 

549-50; id. at 552 (Bowes, J., concurring).
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request a jury instruction explaining the limited purpose of the Rule 404(b) 

evidence admitted at trial.

Order affirmed in part and vacated in part. Case remanded. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015