The Pennsylvania Superior Court has decided the case of Commonwealth v. Hamilton, finding the defendant’s trial attorney provided the ineffective assistance of counsel in failing to object to the Commonwealth’s motion to join the defendant’s two unrelated cases into one trial. The defense attorney should have moved to sever the charges. Had he done so, severance would have been granted, and the defendant would have been more likely to win. Therefore, the Superior Court vacated the conviction and remanded for a new trial.  

The Facts of Hamilton

Three men named Cutshall, Barger, and Heasley conspired to rob the defendant for a debt he owed to Heasley. They lured the defendant into a car under the guise of giving him a ride to purchase marijuana in another town. The defendant sat as the rear-passenger on the driver’s side. Cutshall sat next to him while Barger drove the car with Heasley in the front passenger seat. The driver pulled the car over so he and the front passenger could go to the bathroom.

The driver and front seat passenger returned to the car. Cutshall then pulled out a BB gun and robbed the defendant. The incident took place at night, so the BB gun looked to be a real gun to the defendant. The defendant complied and handed over his cellphone, wallet, and a small drawstring bag which contained a small amount of marijuana. Cutshall, the backseat passenger, ordered the defendant to get out of the vehicle.

Unbeknownst to the three robbers, the defendant had a real handgun in his waistband. Coincidentally, the defendant had stolen the handgun from an unlocked pickup truck the day before. When he got out of the car, the defendant asked the driver if he knew about the robbery plan and the driver acknowledged he did. The defendant then held open the rear door and fired five shots into Cutshall, the man who robbed him, fatally wounding him in the neck. The defendant then went to the rear of the car and fired more rounds into the car striking Healy, the front seat passenger, once in the shoulder.

The defendant then fled into the woods but later met up with the two remaining men after the driver moved the car to a parking lot of a chiropractic center. By the time the four of them met up, Cutshall, the rear passenger, had died. The defendant stayed in the area even though he knew Heasley had called 911. The Pennsylvania State Police found the four of them in the parking lot.

The Criminal Charges

The Commonwealth charged the defendant under two separate dockets for crimes related to the shooting and for the theft of the handgun from the pickup truck. The Friday before the defendant’s shooting trial, during jury selection, the Commonwealth filed a motion to join the shooting docket and the gun theft docket into one trial, arguing the joinder would not prejudice the defendant, it would promote judicial economy, and it would eliminate the need for separate trials. The defendant’s lawyer did not object.

The trial court therefore granted the motion without objection. The trial lasted for four days. The prosecution called 16 witnesses during the trial, and only two of them testified about the theft. The Commonwealth, however, emphasized the theft heavily in its opening statement. Specifically, the prosecutor repeatedly referred to the defendant as a thief and used the term “stole” or “stolen” 15 times before calling any witnesses. The Commonwealth did not dispute that the defendant was the victim of the robbery plot by Cutshall and the others.

The jury found the defendant not guilty of murder and possession with intent to deliver. The jury found him guilty of two counts each of aggravated assault with a deadly weapon, theft by receiving stolen property, and criminal conspiracy. It also convicted on one count each of aggravated assault, criminal attempt, firearms not to be carried without a license, theft from a motor vehicle, criminal conspiracy, theft by unlawful taking, possession of a small amount of marijuana, possession of drug paraphernalia.

The trial judge sentenced the defendant to an aggregate sentence of 15 to 30 years’ incarceration followed by 37 months of reporting probation. The defendant appealed to the Superior Court, challenging the jury instructions and the discretionary aspects of his sentence. The Superior Court affirmed his conviction on direct appeal. The Pennsylvania Supreme Court denied review, so the defendant filed a Post-Conviction Relief Act Petition.

The PCRA Petition

In the PCRA petition, the defendant argued that he should receive a new trial because his trial attorney provided the ineffective assistance of counsel. Specifically, he argued that his trial counsel was ineffective for (1) not contesting the Commonwealth’s joinder motion; (2) not objecting to instances of alleged prosecutorial misconduct in the trial prosecutor’s opening remarks; (3) not objecting to the jury verdict sheet; (4) not objecting to the charging of multiple counts of theft by receiving stolen property; and (5) not objecting to the charging of multiple counts of conspiracy in the gun theft case. The PCRA court held an evidentiary hearing at which the defendant’s trial counsel testified.

Trial counsel testified that he did not object to the Commonwealth’s joinder motion because he believed evidence for the theft case would come in anyway and that the motion would pass the judicial test for joinder. He further testified that he believed if he objected the Commonwealth would delay the homicide trial and try the theft case first. He claimed that joinder was prudent because the jury would hear justification as a defense for theft, which they would not if the theft case were tried alone. Finally, regarding the joinder motion, defendant’s trial counsel testified that he believed the judge would let evidence for the theft come in under the res gestae exception in that it would be relevant in telling the full story of the homicide.

The PCRA court granted the petition with respect to the failure to object to the multiple counts of conspiracy because the multiple conspiracy counts were duplicative, but it denied the rest of the petition. The defendant filed a timely notice of appeal to the Superior Court and again raised the joinder issue.

The Superior Court’s Ruling

The Superior Court ultimately ruled in the defendant’s favor. It noted that in order to prevail under the PCRA, a defendant must show three things. First, a petitioner must show that the claim is of arguable merit. Second, the petitioner must show that no reasonably strategic basis existed to support the attorney’s action or omission. Third, the petitioner must show that the attorney’s error caused prejudice, meaning there is a reasonable probability that the result of the proceeding would have been different had the attorney handled things properly.

The defendant argued that trial counsel’s failure to object to joinder had merit because the theft of the revolver was wholly immaterial for the jury’s consideration of whether he shot Cutshall with criminal intent or whether he concealed the firearm illegally. Therefore, it would have been inadmissible as a prior bad act. He further argued that trial counsel’s above reasons for not objecting were unreasonable - the motion would not have been granted had he objected, and the introduction of the evidence caused him a great deal of prejudice. Finally, he argued that he was prejudiced when the cases were tried together because it enabled the Commonwealth to vilify him in the eyes of the jury as a thieving criminal. This made the jury less likely to view him as the victim of a serious crime.

The Pennsylvania Superior Court agreed. It ruled that the evidence that the gun was stolen had nothing to do with the facts of the shooting. The only issue was whether the defendant acted in self-defense, and whether or not the gun was stolen really had no bearing on that. It also found that the defendant suffered prejudice from the failure to object. The prosecution was able to paint him as a thief rather than as a victim, thereby making it more likely that he would get convicted. Finally, the trial attorney had no reasonably strategic basis for failing to object. The lawyer was incorrect about the evidence of the stolen gun being admissible at the homicide trial, and the other reasons were not supported by the law. Specifically, the justification defense would not have applied to the gun charge either way. Therefore, trial counsel provided the ineffective assistance of counsel, and the defendant will receive a new trial.

This is a good opinion for the defense from the Superior Court. Prosecutors are often eager to consolidate cases that should not be consolidated - it allows the Commonwealth to paint the defendant as a bad person who committed more than one crime, which makes it more likely that the defendant will get convicted by a judge or jury. It also makes it harder to defend the case, and it saves the prosecution the resources of having to try two cases. Judges do not always apply as much scrutiny to these motions as they should given the amount of prejudice that inherently comes from having two separate cases tried together. Therefore, this case should provide some limits on the ability on the Commonwealth to smear a defendant with totally unrelated criminal conduct, particularly in a murder prosecution. 

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