Com. v. Epps, K.
2020 Pa. Super. 232
Pa. Super. Ct.2020Background
- In June 2009 two men (Rian Thal and Timothy Gilmore) were shot and killed during a robbery of Thal’s apartment in Philadelphia; police later recovered cocaine and cash from the apartment.
- Appellant Keith Epps was accused of organizing the robbery; several co‑defendants/cooperators (Jones, Scott, Murchison, Wright, Daniels) testified against him; phone records and surveillance tied Epps to co‑actors and the scene.
- A jury convicted Epps of two counts each of second‑degree murder and robbery, burglary, and conspiracy; he received consecutive life terms for murder; most convictions were affirmed on direct appeal.
- Epps filed a counseled PCRA petition alleging multiple instances of trial counsel ineffectiveness and a Brady/after‑discovered evidence claim about a police internal affairs investigation; the PCRA court dismissed the petition without an evidentiary hearing.
- The Superior Court affirmed, concluding counsel’s failures were either meritless, cured by limiting instructions, or not prejudicial, and that the alleged Brady evidence would be only impeachment and not outcome‑determinative.
Issues
| Issue | Epps’ Argument | Commonwealth/PCRA Court Argument | Held |
|---|---|---|---|
| Trial counsel ineffective for failing to object to prosecutor’s remarks (vouching, sympathy, references to co‑defendants’ pleas, comments about defendants not testifying) | Prosecutor’s comments vouched for witnesses, engendered bias, and improperly commented on defendants’ exercise of rights | Remarks were within proper latitude, responded to defense attacks, trial judge instructed jury on law and silence, no prejudice | Denied — remarks examined in context; no fixed bias shown; no prejudice established |
| Confrontation clause: cross‑examination limited on Scott’s plea agreement details | Restriction prevented full exposure of witness motive and violated Sixth Amendment | Trial court reasonably limited repetitive/hypothetical questioning; counsel already explored plea terms and bias | Denied — wide latitude to limit cross‑examination; effective opportunity to probe bias existed |
| Counsel ineffective for being precluded from mentioning during closing that cooperating witnesses avoided life sentences | Epps argued jurors should know witnesses avoided harsher penalties to impeach motive | Court reasonably barred sentencing‑range references to avoid revealing defendant’s penalties and inflaming jury | Denied — reference would reveal defendant’s potential sentence and was properly restricted |
| Bruton / admission of Wright’s statement at joint trial | Wright’s extrajudicial statement, though not naming Epps, inferentially implicated Epps and violated confrontation protections | Statement was redacted to Wright’s acts only; court gave explicit limiting instruction that it applied only to Wright | Denied — no Bruton violation where statement did not directly name Epps and jury was instructed to consider it only against Wright |
| Detective Dove’s testimony identifying Epps as the “one central figure” from phone analysis | Detective’s characterization amounted to expert opinion on guilt and usurped jury’s fact‑finding | Defense objected at trial; detective’s testimony described phone‑contact pattern, not a legal guilt opinion | Denied — counsel objected; statement was factual synthesis of records, not improper expert declaration of guilt |
| Counsel ineffective for not hiring/consulting a cell‑phone expert to rebut Commonwealth expert locating Epps (Delilah’s Den issue) | A defense expert would have challenged the Commonwealth’s propagation/refraction analysis and placed Epps at the club at the relevant time | Even if rebuttal expert testimony were admitted, ample other evidence (witness IDs, phone contact timing, surveillance) established Epps’ role | Denied — no reasonable probability of a different outcome; no prejudice shown |
| Brady / after‑discovered evidence: internal affairs file on Detective Pitts showing coercion | File showed Pitts used coercive tactics in other cases; withheld evidence would impeach Jones and Scott and could change verdict | Alleged misconduct related to other cases and would only provide impeachment; record has no indication Pitts coerced statements here | Denied — evidence would be impeachment only and not outcome‑determinative; no showing it was unavailable with reasonable diligence |
Key Cases Cited
- Commonwealth v. Treiber, 121 A.3d 435 (Pa. 2015) (standards for ineffective assistance of counsel)
- Commonwealth v. Poplawski, 852 A.2d 323 (Pa. Super. 2004) (prosecutor’s argument reviewed for prejudicial effect and reasonable latitude)
- Commonwealth v. Judy, 978 A.2d 1015 (Pa. Super. 2009) (fair trial, not perfect trial, is standard for review of prosecutorial remarks)
- Commonwealth v. Akrie, 159 A.3d 982 (Pa. Super. 2017) (trial court’s wide latitude to limit cross‑examination under Confrontation Clause)
- Bruton v. United States, 391 U.S. 123 (U.S. 1968) (admission of co‑defendant confession in joint trial may violate Confrontation Clause)
- Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) (requirements when alleging counsel failed to call or consult witnesses)
- Commonwealth v. Staton, 120 A.3d 277 (Pa. 2015) (counsel not ineffective for failing to raise meritless objection)
- Commonwealth v. Brown, 134 A.3d 1097 (Pa. Super. 2016) (evidence of police misconduct in other cases is generally impeachment and insufficient as after‑discovered evidence)
- Commonwealth v. Fisher, 813 A.2d 761 (Pa. 2002) (contextual analysis for prosecutorial vouching)
- Commonwealth v. White, 531 A.2d 806 (Pa. Super. 1987) (jurors should not be advised of defendant’s potential sentence)