248 A.3d 500
Pa. Super. Ct.2021Background:
- On Sept. 22, 2008, Korey Johnson was shot multiple times at a Sunoco on Penn Avenue and later died; ten 9mm casings were recovered.
- Witness Shermaine Campbell (passenger) told officers at the scene she "could not believe they shot him" and later identified "LL" in a photo array as the shooter; Officer William Wagner (plainclothes) observed the shooting and pursued the suspect.
- Jesse Engram was charged, tried, convicted of criminal homicide and related firearms offenses, and sentenced to life plus 2–4 years; this Court affirmed and the PA Supreme Court denied allowance of appeal.
- Engram filed a timely PCRA petition alleging, inter alia, trial counsel Eric Jobe was ineffective for failing to investigate or present an alibi, failing to introduce surveillance video, and failing to object to various testimony and identification issues.
- The PCRA court denied relief after evidentiary proceedings and a Grazier hearing; Engram appealed and this Court affirmed the denial of PCRA relief.
Issues:
| Issue | Plaintiff's Argument (Engram) | Defendant's Argument (Commonwealth/PCRA Court) | Held |
|---|---|---|---|
| 1. Counsel failed to investigate/present alibi | Engram told counsel he was helping family move at time of shooting; counsel should have investigated/called mother as alibi witness | Counsel investigated; strategic decision not to call mother due to credibility concerns and weak time corroboration | Denied — counsel reasonably investigated and made strategic choice (no arguable merit) |
| 2. Counsel failed to object to prosecutor implying alibi fabrication (Rule 567(F)) | Prosecutor drew adverse inference from timing of alibi notice; counsel should have objected/asked for curative instruction | Rule 567(F) bars comment only when witness was prevented from testifying; Engram chose not to present alibi witness, so rule inapplicable | Denied — prosecutor's remark not barred; no ineffective assistance |
| 3. Counsel failed to introduce/exploit Sunoco surveillance video | Video would show obstructions, contradict witnesses (Wagner/others), and rebut Campbell identification outside store | Camera located on roof (different vantage); video did not clearly contradict witness timing; counsel cross‑examined and impeached witnesses effectively | Denied — video would not have produced reasonable probability of different result; counsel's cross‑examination sufficient |
| 4. Counsel failed to object to speculative testimony linking Engram to prior murder association | Testimony that Engram associated with person in prior attempt on victim was speculative and prejudicial | Even if speculative, statement did not imply Engram committed this shooting or create prejudice requiring relief | Denied — no prejudice shown; claim lacked merit |
| 5. Counsel failed to challenge Wagner's identification as unduly suggestive | Wagner first identified Engram at trial; identification was suggestive and should have been suppressed/objected to | Counsel extensively cross‑examined and impeached Wagner on multiple points | Denied — counsel's performance adequate; identification challenge lacked merit |
| 6. Prosecutor knowingly used false testimony and deceptive photographs | Commonwealth knowingly relied on false Wagner testimony and daytime photos manipulated to mislead jury | Claim was not raised on direct appeal; therefore waived under PCRA waiver rules | Denied — claim waived for failure to raise earlier |
| 7. Counsel misstated evidence in opening regarding non‑testifying witness (Diggs) | Jobe told jury Diggs would identify Engram; Diggs did not testify and statement prejudiced Engram | Opening statements are not evidence; court instructed jury they are not binding; statement actually reported that Diggs identified multiple possible suspects | Denied — no prejudice shown; claim fails |
| 8. Cumulative prejudice and due‑process/remand unfairness | Aggregated errors deprived Engram of a fair trial; PCRA court denied petition before supplemental reply was filed | Most individual claims lacked merit or were waived; Engram had months to investigate the Commonwealth’s answer and offered no authority for alleged procedural unfairness | Denied — no cumulative prejudice; due‑process claim waived/unsupported |
Key Cases Cited
- Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) (Pierce test for ineffective assistance explained and applied)
- Commonwealth v. Treiber, 121 A.3d 435 (Pa. 2015) (standard for PCRA ineffective‑assistance claims)
- Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000) (reasonableness of counsel investigation; strategic decisions reviewable)
- Commonwealth v. Dennis, 715 A.2d 404 (Pa. 1998) (counsel not ineffective where cross‑examination and other impeachment sufficient)
- Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) (limits on cumulative‑error relief)
- Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (defendant's right to proceed pro se and required hearing)
- Commonwealth v. Parker, 919 A.2d 943 (Pa. 2007) (opening statements are not evidence)
- Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (established three‑part ineffective‑assistance test)