Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2008

Wilson v. Vaughn
Precedential or Non-Precedential: Precedential

Docket No. 04-1623




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                                           PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 04-1623


                     THEOPHALIS WILSON

                                 v.

                  DONALD T. VAUGHN;
               THE DISTRICT ATTORNEY OF
             THE COUNTY OF PHILADELPHIA;
             THE ATTORNEY GENERAL OF THE
                STATE OF PENNSYLVANIA,
                                 Appellants


          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                      (D.C. No. 02-cv-01605)
              District Judge: Hon. Berle M. Schiller


                      Argued April 15, 2008

       Before: SLOVITER, JORDAN and ALARCÓN * ,
                     Circuit Judges

                       (Filed: July 18, 2008)




      *
         Hon. Arthur L. Alarcón, Senior Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
John W. Goldsborough (Argued)
Philadelphia, PA 19107-3499

       Attorney for Appellants

Barnaby C. Wittels (Argued)
LaCheen, Dixon, Wittles & Greenberg
Philadelphia, PA 19102-0000

       Attorney for Appellee




                   OPINION OF THE COURT


SLOVITER, Circuit Judge.

        The scenario underlying this appeal reads like a popular
television series. A gang of criminals set out to rob drug dealers
and use the money to buy guns; they then used the guns to entice
transactions with other drug dealers; in the course of their crime
spree, they committed six murders; they required one would-be
gang member to kill an innocent victim as a condition of joinder;
and they committed other nefarious acts, such as more conventional
drug and gun sales. The events did not take place in the city of the
fictional TV series but in the very real city of Philadelphia. Before
us is the Commonwealth’s appeal of the District Court’s grant of
a writ of habeas corpus for one member of the gang.

                                 I.

                           Introduction

         Theophalis Wilson was convicted by a jury in a
Pennsylvania Common Pleas Court of three counts each of first-
degree murder, robbery, and criminal conspiracy, as well as one
count of possession of an instrument of crime. The offenses of
conviction were committed in 1989. He was also convicted at the
same time of one count under Pennsylvania’s Corrupt

                                 2
Organizations Act (“PACOA”), a statute that is similar to the
federal Racketeer Influenced and Corrupt Organizations Act
(“RICO”). While Wilson’s case was on direct appeal, the
Pennsylvania Supreme Court ruled that PACOA required criminal
infiltration of a legitimate business enterprise and did not apply to
a wholly illegal organization. Commonwealth v. Besch, 

, 660 (Pa. 1996). There is no dispute that the gang in which
Wilson was affiliated had a wholly illegal purpose. The
Pennsylvania Supreme Court has also ruled that its conclusion in
Besch was not a “new rule of law” and is fully retroactive to cases
on collateral review. Kendrick v. District Attorney, 

,
531 (Pa. 2007). The Commonwealth now agrees that Wilson’s
PACOA conviction must be vacated.

       The District Court granted a writ of habeas corpus on the
ground that Wilson’s counsel rendered ineffective assistance. In
determining whether Wilson suffered prejudice, an element of an
ineffective assistance of counsel claim, we must consider whether
evidence of “other crimes” that was admitted at Wilson’s trial to
prove the PACOA charge was so unfairly prejudicial that it
warrants granting Wilson a new trial or whether the evidence was
independently admissible to prove the murder and related charges.

                                 II.

         Factual Background and Procedural History

       In 1989, petitioner Wilson, then age seventeen, was a
member of a gang led by Christopher Williams. Among the other
members were James White, James McArthur, Rick Bennett, David
Lee (who was Wilson’s uncle), and certain other persons living in
the Germantown Archway, which was also known as the Magnolia
Street Projects. The gang was known for robbing drug dealers in
set-up guns-for-money or guns-for-drugs transactions. That is, the
gang would propose to sell guns to drug dealers but rob the drug
dealers of their drugs and money at gunpoint, sometimes killing the
drug dealers.

       In September 1989, Williams set up a sham sale of AK-47s
to three Jamaican drug dealers from New York City – Gavin

                                 3
Anderson, Kevin Anderson, and Otis Reynolds – by going to New
York and contacting them about coming to Philadelphia to buy
some guns. On September 24, 1989, Williams offered White “a
couple of hundred bucks” to procure a dark-colored van, and White
obliged by stealing one. Trial Tr. 49, July 26, 1993. The following
day, Williams directed White and Bennett to drive the van to a
housing project in Germantown near the residence of Williams’
girlfriend.

       Later that day, Wilson met the three drug dealers and drove
them to the Germantown residence on the pretext of the pre-
arranged gun sale. When the three drug dealers entered, several
gang members, including Williams and Bennett, drew their guns.
The gang members robbed the drug dealers of all the cash on their
persons, approximately $2400, the anticipated cost for two guns.
Williams demanded additional money while pointing his handgun
at one victim’s head. That victim finally admitted he had
additional cash elsewhere. Williams and Bennett took him out of
the residence to retrieve those funds and thereafter took an
additional $24,000 from him. They then shot and killed him.
Meanwhile, Wilson, White and another gang member guarded the
remaining two drug dealers at gunpoint. Williams and Bennett
returned and ordered the other two drug dealers into the van.
Wilson did not ride in the van but rather rode as a passenger in a
Cadillac that escorted the van. After demanding more money from
the other two drug dealers who denied they had any more, Williams
shot them while in the van and, as it slowed down, dumped their
bodies from the van.

      Almost a year later, in July 1990, Special Agent Daniel
Machonis of the federal Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) learned that David Lee, Wilson’s uncle, had been
purchasing firearms for Williams’ gang. Machonis confronted Lee
and undertook to use Lee as a cooperator against Williams’ gang.
Through Lee, federal authorities learned that Lee had purchased a
semi-automatic nine-millimeter Tech-9 firearm at Wilson’s request,
and had purchased other Tech-9 firearms and .45 caliber pistols for
Williams between 1988-1990.

       The case proceeded to trial with the Commonwealth using

                                4
White as its primary witness. The Commonwealth also introduced
the testimony of Machonis as well as certain wiretaps in which
Wilson negotiated to purchase firearms and bullet proof vests from
Machonis, who had also posed as a gun dealer.

        After a thirteen-day jury trial of Williams, Wilson, and
Bennett, the jury found Wilson guilty of three counts each of (1)
first-degree murder, (2) criminal conspiracy, (3) robbery, as well as
one count each of (4) PACOA and (5) possessing an instrument of
a crime. In the penalty phase of the deliberations, the jury rejected
the death penalty requested by the Commonwealth for Wilson, and
instead chose a life sentence. The trial court sentenced Wilson to
three life sentences to be served concurrently on the murder
convictions, five to ten years for each of the three robbery
convictions, two to four years for each of the conspiracy
convictions, eight to sixteen months for violation of PACOA, and
six to twelve months for possession of an instrument of crime. All
of the sentences were to run concurrently with the life sentences for
murder. The trial court denied Wilson’s post-trial motions.

       The jury also convicted Williams of similar, though more
extensive, charges and sentenced him to death. The jury acquitted
Bennett of similar charges.

        White was the only witness for the prosecution to testify
about the triple robberies and murders for which Wilson was
convicted. As part of his agreement to cooperate with the
Commonwealth, White was spared the death penalty, and instead
received six concurrent life sentences for six separate counts of
first-degree murder, concurrent time on subsidiary counts, and
protection from the co-conspirators.

       Wilson was represented at trial and on direct appeal by Jack
McMahon. Wilson filed a direct appeal to the Superior Court,
challenging the admission of evidence regarding the 1990 gun
transaction. That court affirmed the judgment of sentence in a
memorandum opinion holding that the challenged evidence was
admissible to show a violation of PACOA as well as the “extent
and nature” of the gang’s operations. App. at 116. The
Pennsylvania Supreme Court denied allocatur. Wilson filed a pro

                                 5
se petition for collateral relief under Pennsylvania’s Post
Conviction Relief Act (“PCRA”), which petition was amended on
May 18, 1999 after new counsel, Thomas Quinn, filed an
appearance on Wilson’s behalf. The petition argued that McMahon
was ineffective in failing to challenge both the admission of the
evidence introduced to support the PACOA charge and the
evidence of the post-1989 illegal arms purchases. The PCRA court
dismissed the petition on July 7, 2000. Wilson appealed pro se to
the Superior Court. The Superior Court affirmed the dismissal of
the PCRA petition. It held that McMahon was not ineffective
because the PACOA sufficiency claim could not have been raised
on direct appeal as it had been waived and because he could not
have anticipated the change in the law. Wilson did not file a
petition for allocatur in the Pennsylvania Supreme Court.

       On March 25, 2002, Wilson filed a pro se petition for a writ
of habeas corpus in the United States District Court for the Eastern
District of Pennsylvania, followed by two amended petitions. He
then obtained counsel who filed a brief consolidating the claims
into a list of fourteen – five trial court errors, eight instances of
ineffective assistance of counsel, and one complaint of
prosecutorial misconduct. The Magistrate Judge issued a Report
& Recommendation, recommending that the Court deny the
petition.

        The District Court, reaching only one of the issues of
ineffectiveness,1 granted the writ of habeas corpus, vacated
Wilson’s convictions and ordered a new trial. The Court
determined that Wilson’s ineffective assistance of counsel claim
was not procedurally defaulted. With respect to the merits, the
District Court held that McMahon was constitutionally ineffective
for failing to argue on direct appeal that the conviction for violating
PACOA rested on insufficient evidence. The District Court held
that Besch applied to all cases on direct appeal, citing
Commonwealth v. Shaffer, 

, 844 (Pa. 1999), and that



       1
          Because the District Court reached only a single issue of
ineffective assistance of counsel, we must remand for consideration
of the remaining thirteen claims.

                                  6
no deference to the state court’s contrary view was required
because the state court made an unreasonable determination of
clearly established federal law in finding counsel effective despite
his failure to raise Besch on direct appeal.

        The District Court opined that the Superior Court’s decision
was internally inconsistent. The Superior Court stated on one hand
that counsel was not ineffective for failing to raise Besch on direct
appeal because it had been procedurally defaulted by counsel’s
failure to raise the issue at trial or in post-trial motions. On the
other hand, it concluded that counsel was not ineffective for failing
to raise the issue at trial or in post-trial motions because counsel
should not have anticipated the change in the law brought by
Besch. Thus, the District Court determined that the Superior Court
failed to provide a plausible reason for counsel’s complete failure
to raise Besch at any stage of the proceedings, and that counsel’s
omission fell below objective standards of reasonableness.

       The District Court also concluded that Wilson had shown
prejudice because counsel’s ineffectiveness “‘undermine[d]
confidence in the outcome’ of the trial.” App. at 26 (quoting
Strickland v. Washington, 

, 694 (1984)). The Court
noted that Wilson’s co-defendant Williams had already been
granted a new trial on the ground that his counsel’s failure to raise
Besch prejudiced Williams because it resulted in the jury hearing
prejudicial evidence to support the PACOA conviction that could
not now be sustained. The District Court also stated that it “is
difficult to believe that this evidence did not influence the jury
regarding the murder charges, especially given that both the
charges and the prejudicial evidence involved allegations of
Petitioner engaging in illegal gun sales.” App. at 27. Thus,
according to the Court, there was a reasonable probability that but
for counsel’s errors the result of Wilson’s criminal trial would have
been different.

       The Commonwealth appealed. On May 19, 2004, this court
granted the Commonwealth’s motion to stay briefing on the appeal
pending disposition of a question this court certified to the
Pennsylvania Supreme Court, i.e., whether Besch was a new rule
that could not be applied retroactively to cases on collateral review.

                                  7


.2 The Pennsylvania Supreme Court held
that it was not a new rule, and could be applied to cases on
collateral review. In Kendrick, the Commonwealth had argued that
Besch should be overruled in light of a post-Besch legislative
amendment extending PACOA to wholly illegal enterprises, but the
Pennsylvania Supreme Court declined to do so.

       This court thereafter lifted the stay of briefing.
Significantly, after this appeal had been fully briefed, the Supreme
Court of Pennsylvania reversed the decision of the Superior Court
in Williams which was the basis of the District Court’s grant of the
habeas writ in Wilson’s case. See Commonwealth v. Williams,

(Pa. 2007).

        The principal issue raised in this appeal is whether Wilson
is entitled to a new trial because McMahon’s failure to press or
preserve the Besch issue led to the admission of evidence to prove
the PACOA charge which unfairly prejudiced Wilson with respect
to the murder, robbery, criminal conspiracy, and possession of an
instrument of crime charges. The evidence Wilson claims was
unfairly prejudicial was the testimony of Lee (Wilson’s uncle) and
ATF Agent Machonis pertaining to Wilson’s gun transactions.
Wilson argues that evidence of the subsequent gun transactions
was inadmissible for purposes of proving the murders because it
occurred a year after the murders and would have otherwise been
inadmissible as other crimes/bad acts evidence under Rule 404(b)
of the Pennsylvania Rules of Evidence. The Commonwealth
argues that the gun evidence was independently admissible under
state law on the murder, robbery, and conspiracy charges
independent of its relevance to the PACOA charge, and that its
admission did not violate fundamental fairness.




       2
          While this case was stayed, Wilson filed another PCRA
petition claiming, under Roper v. Simmons, 

(2005),
that because he was under eighteen years old when he committed
the offense he could not have formed the specific intent for first-
degree murder. The PCRA court dismissed the petition and the
Superior Court affirmed on November 13, 2006.

                                 8
                                 III.

                            Discussion

        According to Wilson, the jury that convicted him of three
murders and related offenses heard evidence that was admissible
only because he was also charged with violating PACOA. Wilson
argues that if McMahon had rendered effective assistance of
counsel, McMahon would have anticipated that the Pennsylvania
Supreme Court would limit PACOA to infiltration of legitimate
businesses, in light of the Court’s strong indication of its views
about the meaning and purpose of the statute in its opinion in
Commonwealth v. Bobitski, 

, 1296 (Pa. 1993)
(observing that the purpose of the statute was to prevent infiltration
of legitimate businesses). Thus, Wilson suggests, McMahon
should have objected to the Commonwealth’s lack of evidence of
infiltration of a legitimate business at trial and should have raised
the issue in post-trial motions.

        Wilson also argues that McMahon was ineffective by failing
to raise the Besch Court’s limitation of PACOA in his direct appeal
to the Superior Court, as Besch had been decided by then. A
successful challenge on that basis, according to Wilson, would
have led to the vacating of the PACOA charge and with it the
“highly inflammatory testimony” concerning Wilson’s subsequent
gun purchasing behavior many months thereafter. Appellee’s Br.
at 34-35 (emphasis omitted).

        In order to analyze Wilson’s ineffective assistance of
counsel claim we must apply the familiar two-prong test enunciated
by the Supreme Court in Strickland v. Washington, i.e., a
determination whether counsel’s performance was deficient when
measured by an objective reasonableness standard and whether the
deficient performance prejudiced the 

.
We need not address the issue of counsel’s performance if we
determine that no prejudice resulted from counsel’s conduct. See

McAleese v. Mazurkiewicz, 

, 170-71 (3d Cir.
1993).

       Wilson argues that he was prejudiced by the admission of

                                  9
the gun transaction evidence admitted to prove the PACOA charge.
Thus, it is evident that Wilson’s ineffective assistance of counsel
claim depends on whether that evidence would have been
admissible absent the PACOA charge. Admissibility of evidence
is a state law issue. Cf. Estelle v. McGuire, 

, 72 (1991)
(declining to pass upon state evidentiary issue in habeas
proceeding). Ordinarily, we would be required to return this case
to the state court so that it could make the crucial evidentiary
determination because no state court has squarely considered this
issue throughout the history of this case.3 See Dickerson v.
Vaughn, 

, 92 (3d Cir. 1996) (“[A] state should be given
the opportunity to correct its own errors and federal remedies
should be designed to enable state courts to fulfill their
constitutional obligations to the defendant.”); McKeever v. Warden
SCI-Graterford, 

, 85 (3d Cir. 2007) (“‘a habeas court
does not have power to directly intervene in the process of the
tribunal which has incorrectly subjected the petitioner to the
custody of the respondent official.’”) (quoting Barry v. Brower,

, 301 (3d Cir. 1988)). Here, however, that is not
necessary because the Pennsylvania Supreme Court has already
decided that issue in connection with the same evidence and the
same trial in its decision in the appeal of Wilson’s co-defendant,
Williams.

       While this appeal was pending, the Supreme Court of
Pennsylvania decided Williams. That case involved co-defendant
Christopher Williams, the leader of the gang with which Wilson
was affiliated. If we remanded this case, the state court would be
bound to apply the principles set forth in the Williams decision.
See Pries v. Workers’ Comp. Appeal Bd., 

, 144 (Pa.
Commw. Ct. 2006) (“‘The rule of stare decisis declares that for the
sake of certainty, a conclusion reached in one case should be
applied to those which follow, if the facts are substantially the
same, even though the parties may be different.’”) (quoting



       3
         At oral argument the Commonwealth attorney argued that
“for all intents and purposes” the state courts had ruled on the
evidentiary issue, but ultimately admitted that the “question wasn’t
squarely before [the state courts].”

                                10
Commonwealth v. Tilghman, 

, 903 n.9 (Pa. 1996)).
See also Schaaf v. Kaufman, 

, 659 n.5 (Pa. Super. Ct.
2004) (stating that binding precedent is a “decision that ‘must be
followed when similar circumstances arise’”) (quoting Black’s Law
Dictionary (7th ed. 1999)). Thus, we do not need to remand the
case because we can apply the clear principles of Pennsylvania law
as set forth in Williams, which would be binding precedent on any
state court to consider this issue, even though the parties are
different.

        The Williams decision sets forth the following relevant
background facts. At the same trial as Wilson, the jury convicted
Williams of three counts of first-degree murder (for the victims
Gavin Anderson, Kevin Anderson, and Otis Reynolds), three
counts of first-degree robbery (for the same three victims), three
counts of criminal conspiracy pursuant to 18 Pa. Cons. Stat. § 903,
one count of violating PACOA, and one count of possessing an
instrument of crime. The jury acquitted Williams of a fourth count
of first- degree murder for the murder of William Graham, the taxi
cab driver murdered by White so that he could gain admittance to
Williams’ gang.

       The jury sentenced Williams to death for each of the three
murders. Williams undertook to file a series of appeals, that were
generally unsuccessful. Then, on May 14, 2002, the PCRA court
granted Williams’ PCRA petition with respect to his claim that his
appellate counsel had been ineffective in failing to raise the issue
of the applicability of Besch on direct appeal. The PCRA court
concluded that if direct appeal counsel had raised Besch on appeal
the PACOA conviction would have been reversed. The only issue,
therefore, was whether Williams should be given a new trial on the
other charges based on the fact that the evidence to prove the
PACOA charge had been admitted at trial. The PCRA court
concluded that Williams’ conviction, which resulted in a death
sentence, could not be based on “‘highly inflammatory evidence’”
that was only admissible for purposes of proving the PACOA
conviction which was now invalid. 

(quoting PCRA court opinion). Therefore, the PCRA court ordered




                                11
a new trial. The Commonwealth appealed.4

       The Pennsylvania Supreme Court decided that even if there
were problems with Williams’ claim that appellate counsel was
ineffective for failing to raise Besch on direct appeal, the PACOA
conviction nevertheless violated due process and Williams was
“plainly [] entitled to collateral relief on the [PACOA] conviction,
whether as a Sixth Amendment matter or a due process matter.” 

The more difficult question, however, according to the
Supreme Court, was whether Williams was entitled to a new trial
on the theory that the evidence concerning the PACOA charge
would have been otherwise inadmissible and unfairly prejudicial.
To that end, the Court stated that “even if trial counsel could be
faulted, in hindsight, for failing to forward the argument that later
prevailed in Besch, [Williams] has failed to prove prejudice–i.e.,
he has failed to prove that the [PACOA] evidence which came in
would both: (1) not otherwise have been admissible; and (2) caused
him Strickland/Pierce prejudice.” 

       In a lengthy and detailed opinion, the Pennsylvania Supreme
Court then proceeded to consider each category of evidence that
Williams claimed would not have been admissible absent the
PACOA charge and that prejudiced him as a result. Turning first
to the testimony from James White and James McArthur
concerning uncharged other crimes where Williams was directly
involved, the Court held that this category of evidence would have
been admissible under Pennsylvania Rule of Evidence 404(b)(2).
That rule tracks Federal Rule of Evidence 404(b), and allows
admission of other crimes evidence for a purpose other than
proving criminal character/propensity, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake. 

(citing Commonwealth v. Dillon,

, 136-137 (Pa. 2007)). In addition, evidence of other
crimes may be relevant and admissible under Pennsylvania law “to
show ‘part of the chain or sequence of events which became part



       4
         The PCRA court dismissed all of Williams’ other claims.
Williams also appealed the dismissal of those claims, which are not
relevant to the instant case.

                                 12
of the history of the case and formed part of the natural
development of the facts.’” 

(quoting 

(internal citation omitted)). Thus, the Court held that because
Williams had been charged with criminal conspiracy, “the
Commonwealth was entitled to show the full scope and extent of
the conspiracy charged, so that the individual crimes would not be
presented in a vacuum, lacking context.” 

reasoned
that the other crimes evidence at issue in the testimony of White
and McArthur was admissible to show Williams’ “intent to
conspire to rob drug dealers at gunpoint and kill them if
necessary.” 

Court then considered the testimony by James
White and co-defendant Bennett about the attempted robbery of
David Perez, who was a drug dealer; the attempted robbery resulted
in the murder of one Marron Jenrette. This evidence was not
introduced against Williams, but was introduced against Bennett.
Because the trial court gave a limiting instruction that the evidence
could only be considered against the defendant for whom it was
offered, the Court concluded that the evidence was not prejudicial
to Williams.

        Third, the Court turned to the testimony by White and Dr.
Ian Hood about the robbery and murder of drug dealer Michael
Haynesworth. The Court concluded that the evidence would have
been admissible absent the PACOA conviction to prove Williams’
intent to conspire to rob drug dealers and kill them if necessary. 

       Fourth, the Court considered the testimony by White and
McArthur about the attempted robbery of two other drug dealers
known as “Troy” and “Sweetest.” In addition to being offered
against Williams on the PACOA charge, this evidence was also
introduced against Bennett with respect to a charge against him.
Thus, it was lawfully admitted and not unfairly prejudicial to
Williams.

        Fifth, the Court looked to the testimony by David Lee about
illegal gun purchases made by Williams and Wilson between 1988-
1990. This category of evidence is particularly relevant for

                                 13
purposes of this appeal. David Lee had testified that he purchased
two guns for Williams in 1988 and 1989 and three guns for Wilson
in 1990. Williams claimed that this evidence of “other crimes,”
namely, the purchase of illegal firearms, was irrelevant and unfairly
prejudicial to prove the charges against him in the absence of the
PACOA charge. The Court rejected that argument, holding that
“this evidence was relevant to complete the story of how appellee
obtained the weapons which he himself used to rob, and
occasionally kill, other drug dealers.” 

The Court went on
to explain that “[t]he probative value of this evidence was strong
because [Williams’] illegal handguns were an intricate tool in his
organization’s conspiracy to rob drug dealers at gunpoint.” 

Court considered the evidence of surveillance
tapes and testimony from ATF Agent Machonis regarding attempts
to purchase guns, drugs, and bulletproof vests by Wilson on behalf
of the organization. This category is also highly relevant to the
instant appeal. Because the evidence was admitted for the purpose
of proving the PACOA charge against Wilson, and because the
trial court issued a limiting instruction that it was not to be
considered in connection with Williams, the Court concluded that
Williams had not suffered prejudice. Although the Court did not
discuss whether the evidence would have been admissible against
Wilson, we can reasonably infer, based upon the Court’s reasoning
with respect to the other categories of evidence, that it would have
held that the evidence would be admissible against Wilson for the
purpose of proving how Wilson obtained the type of weapons that
were an integral part of the overarching conspiracy’s purpose.

       Seventh, the Court summarily dismissed the claims based on
the prosecutor’s closing argument as having not been prejudicial.

       In sum, although the Pennsylvania Supreme Court affirmed
the PCRA court’s decision to vacate Williams’ PACOA conviction,
it reversed the PCRA court’s order to the extent that it granted
Williams a new trial for the reasons discussed above. It remanded
for issues related to Williams’ cross-claims that are not relevant
here.

       The Court acknowledged that Williams’ counsel’s failure to

                                 14
anticipate Besch prevented him from raising an objection at trial.
Similarly, the absence of objection obviated the need for the
Commonwealth attorney to make an offer of proof about why the
evidence was being admitted, which would ordinarily be required
under Pennsylvania evidentiary law. Thus, the trial court was
prevented from engaging in the probative value/prejudice weighing
that it normally would have undertaken in such a case. However,
as the Court explained, this did not mean that Williams should
prevail. 

-32. It reasoned that the fact that the PACOA
conviction would have been set aside on direct review if counsel
had raised it does not mean that “Besch-derivative or Besch-
tangential claims would have been entertained . . . .” 

That is because Besch does not address derivative evidentiary
claims but rather provides a limited remedy – vacating the PACOA
conviction. 

two categories of evidence that Wilson argues
prejudiced him and required granting him a new trial now that his
PACOA conviction must be set aside. He argues that the testimony
of David Lee concerning Wilson’s purchase of firearms from Lee
and the testimony of ATF Agent Machonis regarding the sting set-
up implicating Wilson in firearms transactions should both have
been excluded because the firearm transactions occurred “nearly a
full year after” the murders for which Wilson was convicted.
Appellee’s Br. at 39 (emphasis omitted).

       Wilson’s contentions are controlled by the decision in
Williams. “‘Typically, all relevant evidence, i.e., evidence which
tends to make the existence or non-existence of a material fact
more or less probable, is admissible, subject to the
prejudice/probative value weighing which attends all decisions
upon admissibility.’” 

(quoting 

). The evidence concerning Wilson’s firearms
purchases is patently relevant to prove that Wilson was involved in
a criminal conspiracy that used guns to attack drug dealers. As the
Court recognized in Williams, not all relevant evidence is
admissible. However, even “evidence of separate or unrelated
‘crimes, wrongs, or acts,’” which is not admissible as character
evidence against a criminal defendant, may be admissible under
Pennsylvania Rule of Evidence 404(b)(2) to prove motive,

                                15
opportunity, intent, identity, plan, knowledge, preparation, or
absence of mistake. 

(citations omitted). Other crimes
evidence may also be admissible to prove “part of the chain or
sequence of events which became part of the history of the case .
. . .” 

internal quotations omitted). As the Court
recognized in Williams, typically the prosecutor must make an
offer of proof to the trial court judge, so that the judge can
undertake the appropriate probative/prejudice balancing before
deciding whether to admit the evidence for one of the permitted
purposes. However, following the holding in Williams, the lack of
such a balancing in this particular case is not dispositive because
in effect, the Supreme Court of Pennsylvania undertook the
balancing itself and determined that the evidence was not unduly
prejudicial. See 

        The evidence concerning Wilson’s firearms purchases was
admissible to prove motive, as well as to prove a sequence or chain
of events all connected to the criminal conspiracy to rob and kill
drug dealers. Like Williams, Wilson was also charged with
criminal conspiracy. “The crime of corrupt organizations targets
criminal confederations; thus, it is but a subspecies of conspiracy.”

. Therefore, “the Commonwealth was entitled to show the
full scope and extent of the conspiracy charged, so that the
individual crimes would not be presented in a vacuum, lacking
context.” 

evidence concerning Wilson’s illegal
firearms transactions “was relevant to complete the story of how
appellee obtained the weapons which he himself used to rob, and
occasionally kill, other drug dealers.” 

Moreover, “[t]he
probative value of this evidence was strong because . . . illegal
handguns were an intricate tool in [the] organization’s conspiracy
to rob drug dealers at gunpoint.” 

the testimony of both
Lee and Machonis was independently admissible to prove criminal
conspiracy under at least one of the exceptions to Pennsylvania
Rule of Evidence 404(b).

       The District Court held that appellate counsel’s performance
was constitutionally deficient because he did not raise Besch on
direct appeal. The District Court stated that it “is difficult to
believe that this evidence did not influence the jury regarding the
murder charges, especially given that both the charges and the

                                 16
prejudicial evidence involved allegations of Petitioner engaging in
illegal gun sales.” App. at 27. The Court did not undertake to
provide much detailed analysis on the issue of prejudice, however,
as it appeared to rest its decision significantly on the fact that
Williams had been granted a new trial by the PCRA court at the
time this case was before the District Court. That decision has now
been reversed.

        Our discussion above leads us to the conclusion that Wilson
has not suffered Strickland prejudice because the evidence in
question would have been admissible absent the PACOA
conviction. Moreover, the Pennsylvania Supreme Court stated that
admission of that evidence did not create a “reasonable probability
that the trial court’s failure to exclude [it] . . . essentially caused
[the] murder, robbery, or conspiracy convictions[,]” 

, and thus that no Strickland prejudice resulted. We note
that in concluding to the contrary, the District Court did not have
before it the recent Pennsylvania Supreme Court decision in
Williams declaring that Williams was not, in fact, entitled to a new
trial.

                                 IV.

                             Conclusion

       For the above-stated reasons, we will affirm the judgment
of the District Court granting the writ insofar as it was based on the
need to remand to the state court to vacate Wilson’s PACOA
conviction. We will reverse the District Court’s decision granting
a new trial based upon ineffective assistance of counsel and will
remand to the District Court for consideration of Wilson’s
remaining claims.




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