## Facts

- Demetrius Cull and co-defendant Anthony Smith operated together in a narcotics enterprise; the homicide victim was connected to the operation and allegedly threatened to report them to police.
- Cull and Smith were tried jointly in the Philadelphia Court of Common Pleas for first-degree murder, criminal conspiracy, and possession of an instrument of crime.
- The Commonwealth introduced two sets of out-of-court statements by Smith through third-party witnesses; Smith did not testify.
- On the morning of the murder, Smith told Faye Cherry (allegedly in Cull’s presence) that he and Cull killed the victim because she threatened to report them.
- Also that morning, Smith telephoned Fitzroy Lewis, said he and Cull killed the victim because she was “giving them trouble,” and asked Lewis for a hotel recommendation where they could hide before leaving town.
- The jury convicted Cull of first-degree murder, conspiracy, and possession of an instrument of crime.
- Post-verdict, the trial court granted a new trial, concluding counsel was ineffective for failing to object to portions of Smith’s statements implicating Cull as inadmissible hearsay.
- The Superior Court reversed, holding the statements admissible under the co-conspirator hearsay exception; it therefore rejected the ineffectiveness claim.
- The Pennsylvania Supreme Court reviewed the Superior Court’s reversal.

## Issues

1. Whether Smith’s out-of-court statements incriminating Cull, introduced through third-party witnesses, were admissible under the co-conspirator exception to the hearsay rule.
2. Whether trial counsel was ineffective for failing to object to the admission of those statements.

## Decision

- The Pennsylvania Supreme Court affirmed the Superior Court’s order reversing the grant of a new trial.
- The Court held Smith’s statements were admissible as co-conspirator statements made during the course of, and in furtherance of, the conspiracy.
- Because the statements were admissible, counsel was not ineffective for failing to object.
- The effect of the ruling was to reinstate Cull’s convictions.

## Legal Principles

- A co-conspirator’s out-of-court statement is admissible against another conspirator if made during the course of the conspiracy and in furtherance of it.
- “In furtherance” may include statements facilitating concealment, continued cooperation, or flight, reflecting that a conspiracy can extend beyond the substantive offense to efforts to avoid detection and arrest.
- Counsel is not ineffective for failing to raise a meritless objection; failure to object to properly admitted evidence does not establish ineffective assistance.

## Conclusion

The court concluded that Smith’s statements to third parties were part of the conspiracy’s ongoing effort to avoid law enforcement through concealment and flight, making them admissible under the co-conspirator exception; accordingly, trial counsel’s failure to object could not constitute ineffective assistance, and the order granting a new trial was properly reversed.


Commonwealth v. Cull, 656 A.2d 476 (Pa. 1995)